K.B. Dallaz Motors Limited & Anor V. Mr. Samuel Ayodele Borokini & Anor (2004)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ ABA, J.C.A.

This is an appeal against the Ruling of the Kaduna State High Court, holden at Kaduna in Suit No. KDH/KAD/528/00, delivered on 24/4/2001. The appellants who are the plaintiffs claim jointly and severally against the defendants as follows:-

“1. The sum of N2, 550, 000.00 being the market value of Peugeot 504 Saloon Car Best Line Engine/chasis No. 6159521 as at 23rd January, 2000, which was taken away from his possession in Kaduna, upon consideration i.e. promise that has totally failed.
1. Interest of 25% from the 23rd of January, 2000 until Judgment is delivered.
2. General damages in the sum of N2, 500, 000.00.”

Upon being served with the writ of summons, a Notice of Preliminary Objection dated 4/12/2000 was filed on behalf of the 2nd defendant/applicant, raising objection to the hearing of the suit and shall urge the court to strike out the writ of summons on the 2nd defendant/applicant for non-compliance with the Rules of the trial High Court. The grounds are:-
“1. Leave to issue writ of summons out of Jurisdiction was not sought.
2. This Honourable Court did not give order for writ of summons to be issued outside the jurisdiction of this Honourable Court and hence the Defendant/Applicant cannot be served same.”

While a motion on Notice dated 27/2/2001 was filed on behalf of the 3rd Defendant/applicant praying for:
“(i) AN ORDER striking out the entire suit as it concerns the 3rd Defendant for incompetence and lack of jurisdiction.
(ii) AND for such further or other order(s) as the Honourable Court may deem fit to make in the circumstances.

GROUNDS
The present action is incompetent against the 3rd Defendant for its failure with the statutory provisions of Section 174 of the Local Government Laws Cap 63 Laws of Ondo State of Nigeria.”

The motion was supported by a three paragraph affidavit deposed to by one Chief Bankole Ogunlusi, Litigation Officer of Akure North Local Government Iju Ita, Ogbolu. Paragraphs 1 and 2 of the affidavit a reads as follows:-
“1. That I am the Litigation Officer in charge of of all Legal correspondences and Court’s processes concerning the 3rd Defendant.”
2. That prior to the commencement of this present action the Plaintiff did not serve the one month statutory Notice on the 3rd Defendant.”

Arguments on the preliminary objection, motion for striking out and response were taken on 6/4/2001. In its reserved and considered ruling delivered on 24/4/2001, the learned trial Judge at pages 58 – 59, said,
“Mr. Daudu SAN pointed out that the issue of the writ is an administrative matter. I agree. But where the writ of summons is to be served outside Jurisdiction before the Registrar performs this administrative function, leave of court must be sought and obtained. It is not enough merely to seek leave to serve the writ of outside jurisdiction as the plaintiffs have done in this case. As the plaintiff have not sought and obtained leave of court or Judge to issue the writ and serve same out of the jurisdiction of this court thereby breached a fundamental statutory requirement and the writ shall be declared a nullify. See NEPA VS. ONAH (1997)1 SCNJ 220 AT 228 and ODUA INVESTMENT CO. LTD. VS. TALABI (1997) 10 NWLR 1 at 30.”

On the second ground of objection, the learned trial Judge at page 59 of the record, said,
“S.174 of the Local Government Law Ondo State reproduced above is very clear, wide and all embracing.
It speaks of all suits not being commenced until a Notice of One month has been given. It is not disputed that no such notice has been given in this case before its commencement.”

In conclusion at page 69 of the record the learned trial Judge held:-
“As Mr. Afolabi rightly submitted the power of State Legislature to make laws for the running of these Local Governments over the years has never been affected by any Federal Legislation. Therefore the doctrine of covering the field does not apply in this case. Therefore I agree entirely with Mr. Afolabi learned counsel for the 3rd defendant that the condition precedent for the exercise of the court’s jurisdiction is lacking. See MADUKOLU VS. NKEMDILIM (supra). On this ground too this suit should be struck out for being incompetent. It is clear from the foregoing, that both objection should be upheld on both grounds. I accordingly do so. The writ of summons as it relates to the 2nd and 3rd Defendants should be struck out for being incompetent and a nullity. The suit as it concerns the 2nd and 3rd defendants is hereby struck out as prayed.”

Being dissatisfied with the Ruling, the appellants appealed to this court by its notice of appeal dated 11/5/2001, containing two grounds of appeal. By a motion dated 3/9/2002, filed on 4/9/2002, the appellants prayed for: –
“(1) An order grating the applicant/appellant leave to file and argue additional ground of appeal and in particular adding additional ground of appeal 1 numbered 3 in the annexed Notice of additional ground of appeal.”

The said prayers along with others were granted on 29/10/02.

In accordance with the Rules of Practice and procedure briefs of argument were filed and exchanged by counsel to the parties.

In the appellants’ brief dated 3/11/02, filed on 4/11/04, three issues were formulated for determination in this appeal, they are as follows:-
“2.1 Whether the order made by the High court on 22/9/00 satisfied the requirement of Order 5 Rule 6 of the High Court Rules and whether the trial court was correct when it held that it was not sufficient merely to seek the leave of court to serve a writ of summons outside jurisdiction but that the plaintiff ought to have sought for leave to issue and serve the writ outside Jurisdiction?