Nigerian Universal Bank Ltd. & Ors. V. Samba Petroleum Company Ltd. (2006)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

This is an appeal against the ruling of Hon. Justice O. Oyewo of the High Court of Justice, Suleja, Niger State delivered on the 17th of October 2000.

The facts which led to the present proceedings are as follows:

The plaintiff/respondent sued the defendants/appellants on a writ of summons taken out on 9/10/98 claiming:

1. “A declaration that the 3rd defendant in a consolidated suit No: KDH/KAD/314/91 is claiming just money and not the plaintiff’s property and that at the end of that suit (and any appeal thereof) even if the Judgment is entered in favour of the 3rd defendant plaintiff will be ordered to pay money.
2. A declaration that until the suit between the 3rd defendant and the plaintiff which is now pending before the Court of Appeal, Abuja Division is conclusively determined the issue whether the property of the plaintiff can be auctioned cannot arise.
3. N3 Million against the defendants for trespass.
4. An order of perpetual injunction against the defendants and their agents or any person whosoever claiming through them from trespassing into the property of the plaintiff.”

At the time the suit was instituted the address of the 1st appellant was Nigerian Universal Bank, Yakubu Gowon Way, Kaduna, the 2nd appellant, No. 12 Ibrahim Taiwo Road, by Chanchangi Corner, Tundun Wada, Kaduna, while that of the 3rd appellant was Plot 613 Cadestral Zone A5 Off Gana Street, Maitama District, Abuja.

Simultaneously with the filing of the writ of summons the plaintiff filed a motion ex-parte on 9/10/98 seeking:

“An order restraining the defendants their agents or any body who claims through them from further trespass into the property of the plaintiff situate at Kaduna/Abuja Express Way, Suleja until the determination of the motion on notice.”

On 13/10/98 the learned trial Judge heard the application and granted it.

The writ of summons was thereafter served on the defendants without first obtaining leave to issue out of jurisdiction as provided by Order 5 rule 6 of the Niger State High Court Civil Procedure Rules Cap 54 of 1987.

On 21/10/98 learned counsel for the plaintiff moved another ex-parte application. This time he came under Order 12 rule 13 of the of High Court of Niger State Civil Procedure Rules seeking the following reliefs:

“1. Leave to issue and cause to issue and Leave to serve Writ of Summons in this Suit out of Jurisdiction of this Court.

2. An order deeming writ of summons issued on 9/10/98 and all the motions issued pursuant to the writ of summons properly issued.”

The application was granted on the same day and the case adjoined to 18/1/99 for mention.

Thereafter the learned trial Judge heard the following motions:

“1. Motion on notice filed by the plaintiff seeking interlocutory injunction.”