Bank Of Industry Limited & Ors V. Prince Micheal Adewale – Adediran & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Honourable Justice Babs-Kuewunmi J. of the Federal High Court of Nigeria, Oshogbo Judicial division, delivered on 12th July 2012 wherein the learned judge struck out the Originating Summons taken out by the Appellant on the ground that same was not properly served on the Respondents.

For the purpose of clarity, the portion of the Judgment of the court appealed against as contained on page 25 of the Record of Appeal is reproduced verbatim as follows:-

“This suit is properly commended (sic) under the Originating Summons procedure. This leg of objection fails and I so hold.

On ground 4, I have taken a careful look at the record of service in this case. It shows that the originating processes in this suit i.e. the Originating Summons were served on one T.O. Abiola (Accountant) at Adediran Steel and Wire Industry, Ilesha on 17/2/2007 by the bailiff of this court.

He obviously received it on behalf of the two Defendants.

The Defendants in this case are Prince Michael Adewale and Julius Adegoke Adediran.

The position of the law is that originating processes are to be served personally on parties to a case and except in cases where the court orders substituted service, parties on record are to be served personally with originating processes. It is noteworthy to mention here that the Defendants were sued in personal capacities and service on them is fundamental to the trial of this case as it confers competence and jurisdiction on the court seized of the case.

See NTEKIM V Oron Local Govt. (2010) 16 NWLR (pt. 1219) 209 at 232; Adamu V Akukalia (supra) page 324.

Although Counsel to the Defendants entered an appearance and had taken part in this proceedings to date, it does not in my humble view constitute a waiver to the issue of proper service of the process “properly” as required by law. See F.B.N V T.S.A. Industries Ltd (2010) 15 NWLR (pt 1216) 247 at 309.

Where a Plaintiff is experiencing difficulties in serving originating processes on a Defendant, order 6 Rule 5 of the Federal High Court Civil Procedure Rules 2009 has made adequate provisions to take care of such but service on a non-party cannot be said to be good service in law.

In the circumstance, the preliminary objection of the Defendants is upheld on this ground. The service is liable to be set aside and it is hereby set aside.

The service of the originating summons in this case is declared improper and robs this court of its jurisdiction to adjudicate in the substantive claim i.e. the originating Summons. Plaintiff’s case is hereby struck out”.

This appeal is against the Ruling reproduced above.