Mufutau Bamidele Akande v. Prof. Olugbemiro Jegede & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MARY UKAEGO PETER-ODILI, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Division delivered on 26th day of June, 2015 or court below or lower court, Coram: Joseph Shagbaor Ikyegh, Chinwe Eugenia Iyizoba and Abimbola Osarugue Obaseki Adejumo, JJCA, setting aside the ruling of O. A. Williams J. of the High Court of Lagos State delivered on 29th day of July, 2010.

Background facts

The 1st respondent herein was the appellant in the court below. On the 29th October, 2007 the 1st respondent as claimant filed some writs of summons, statements of claim and all the accompanied processes at the Ikeja High Court Registry being ID/1387/2007, ID/1388/2007 and ID/1389/2007.

In all of the suits above stated which mainly were for libel against 4 defendants jointly and severally, the appellant herein (in suit number ID/1386/2007) was the 4th defendant.

After the writ of summons herein was sealed, issued and processed for service on the defendant, the claimant paid the statutory fees for service and thereafter the processes were assigned to Sheriffs (Mr. Popoola William and Mr. Adeniji Adetoyosi) of the High Court in accordance with the rules of court to effect service thereof.

The Sheriff served the appellant the 2nd, 3rd, and 4th respondents herein on 06 November, 2007 with the originating processes and deposed to affidavits of service.

Three years later in the course of prosecuting this matter on 07 January 2010 the appellant, 2nd 3rd and 4th respondents who at that time retained the services of one law firm suddenly filed a notice of preliminary objection and applied that the names of the appellant, 2nd and 4th respondents be struck out because the originating processes were not served on them personally.

In the meantime as at the 07 January 2010 the 3rd respondent, employers of Yinka Oluwole (who Informed the sheriffs that she was authorised by the 2nd 3rd and 4th respondents to collect and sign for processes), the 2nd and 4th respondents who did not contest service of the originating processes effected on 06 November 2007 sat on the fence and took no steps in the proceedings at all.

The 1st respondent as respondent to the objection by the appellant, 2nd, 3rd and 4th respondents contested the application to strike out the names of the appellant, 2nd and 3rd respondents. By a considered ruling delivered on 02 June 2010 the trial court O.A. Williams J., of High Court number 32 Ikeja High Court Commercial Division, sitting at Tafawa Balewa Square, Lagos refused the appellant, 2nd and 4th respondents’ application to strike out their names.

Rather, the learned trial judge found the services of the originating on the 2nd and 4th respondents only irregular set them aside whilst service of the originating processes on the appellant was held as regular. Thereafter since the 1st respondent (as claimant) had filed and served the pre-trial conference processes the matter by consent of all the counsel was adjourned to 12 July 2010 for pre-trial conference.

Based on the findings of the learned trial Judge made on 02 June 2010, referred to in paragraph 1.05 above the 1st respondent by a motion ex parte dated and filed on 07 June 2010 prayed for the following reliefs;

1, extension of time within which to apply for renewal of the writ of summons herein dated and issued on 29 October 2007.

2. Renewal of the writs of summons herein dated and issued on 29 October 2007 for a period of 3 months from the date of the granting of the order for renewal.