Kraus Thompson Organisation Limited. V. University Of Calabar (2004)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

These are an appeal and a cross-appeal against the decision of the Court of Appeal, Lagos, given on the 8th of April, 2000 allowing the appeal of the defendant against the decision of the Lagos High Court Hunponu- Wusu, J, whereby he dismissed the defendant’s preliminary objection to the jurisdiction of the trial court to entertain the suit. The matter started this way: Kraus Thompson Organisation Limited as plaintiff took out a specially endorsed writ of summons with a statement of claim on the 22/11/1994 against the University of Calabar, the defendant. The plaintiff’s claim against the defendant was in the following terms:-

“i. The sum of SW Fr 31,840:00 and 19065.87 US Dollars being unpaid outstanding sum of money due to the plaintiff in respect of supplies of books and/or journals, the equivalent in Nigerian currency at the Central Bank of Nigeria (CBN) exchange rate is N950,540.34 for the purpose of payment of filing fees.

ii. 10% interest per annum on the outstanding judgment sum until final liquidation of the debt.

iii. Such further or other sums of money as the defendant may be found liable to the plaintiff at the trial of this suit.

iv. Cost of this litigation.”

The originating processes were duly served on the defendant at their liaison office in Lagos within the jurisdiction of the court. The defendant was tardy in appearance to the writ and/or in filing a statement of defence. The plaintiff therefore applied on the 21st of December, 1994 for judgment in default of appearance and in default of defence. Meanwhile on the 11/1/1995, the defendant filed unconditional appearance to the suit and applied for extension of time within which to file and serve statement of defence. On the 6/2/1995, the defendant filed its proposed statement of defence. The plaintiff, pursuant to Order 10 rules (1) and (2) of the High Court of Lagos State Civil Procedure Rules, 1972, now Order 11 of 1994 Rules, applied for summons for judgment on the 22/2/1995. It was on the 31/3/1995 that the defendant filed a notice of preliminary objection to the hearing of the suit. It is the subject-matter of the appeal. The notice of preliminary objection was in these terms:

“NOTICE OF PRELIMINARY OBJECTION

Under the inherent jurisdiction of the court

Take notice, that the above named defendant intend to raise a preliminary objection to the hearing of this suit and plaintiff’s summons for judgment when the same comes up before his Lordship, Honourable Justice S. O. Hunponu-Wusu at Court 11 on Monday, the 3rd day of April, 1995 at Nine O’clock on the ground that this Honourable Court lacks the jurisdiction to entertain the suit.

GROUNDS OF OBJECTION ARE THAT:

i. The writ of summons in this suit is not properly commenced.

ii. The University of Calabar has its seat in Calabar, Cross Rivers State, and that the law establishing it, established it for Calabar.

iii. The contract, the subject-matter of this suit was not executed in Lagos. Neither the plaintiff nor the defendant resides in Lagos State.