British American Tobacco (Nigeria) Limited V. Attorney-general Of Ogun State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Judgment)

The appeal is against the Ruling of the Ogun State High Court, Abeokuta Judicial Division, delivered on 20th May, 2010 by Olopade, J. (now Chief Judge) in which the lower court dismissed the Appellant’s application (as 1st Defendant) in which the following orders were sought:

(i) “Set aside the issuance and subsequent service, on the Appellant, of the concurrent writ of summons purportedly issued out of the Registry of the lower court on 16th May, 2008, and

(ii) Strike out this Suit (i.e. Suit No. AB/61/2008) by reason of the fact that it was not initiated by due process of law.”

With reference to the concurrent writ of summons at pages 1-3 of the printed records, the Appellant observed that on the face of it, does not state the date on which it was issued, while the copy served on the Appellant had 16th May, 2008 as date of issue, for this reason the date of issue of the concurrent writ of summons was referred to by the Appellant as 16th May, 2008.

The background facts are that the 1st Respondent the Claimant in the lower court was said to have purportedly commenced Suit No. AB/61/2008 against the Appellant and the 2nd, 3rd and 4th Defendants respectively. The 1st Respondent’s claims jointly and severally against the Appellant and the 2nd – 4th Respondents are on pages 104 -108 of the printed records.

The 1st Respondent also filed a motion Ex parte, dated 26th February, 2008 by which he sought the leave of the lower court to issue and serve the originating and other processes which he had filed in the lower court on the Appellant and the 2nd – 4th Respondents, pages 109 – 118 of the records.

The 1st Respondent filed another motion ex parte, dated 23rd April, 2008, in which similar reliefs as those in the earlier motion were sought, pages 119 – 169 of the records.

The Appellant made out that there was no decision in respect of the earlier motion ex parte but that on 15th May, 2008 the lower court granted the reliefs sought in the second motion ex parte dated 23rd April, 2008 and granted the 1st Respondent leave to issue and serve the concurrent writ of summons, the statement of claim and other originating processes on the Appellant and the 2nd – 4th Respondents in the Suit by substituted means, pages 181 – 182 of the records.

The Appellant contended that the 1st Respondent applied for, issued and served upon the Appellant a “Concurrent Writ of Summons to be served out of jurisdiction” and that the concurrent writ purported to be on “Form 3” set out in the Appendix to the High Court of Ogun State (Civil Procedure) Rules, 1987 (hereafter referred to as “the 1987 Rules”), see pages 1 – 3 of the records.

It was the contention of the Appellant that the 1st Respondent only applied to the lower court for leave to issue a concurrent writ of summons and that no application was made to issue an original writ of summons (nor has any original writ of summons ever been issued in this suit) which would form the basis for the valid issuance of a concurrent writ of summons out of the Registry of the lower court.

The writ of summons, statement of claim and the lower court’s enrolment order dated 15th May, 2008, were effected on the Appellant on 2nd March, 2009. The other defendants were said to have been purportedly served by substituted means at various dates; pages 183 – 194 of the records, showing proofs of service on the Appellant and the other defendants.

The Appellant entered a conditional appearance on 2nd April, 2009 by filing a Memorandum of Conditional appearance at the registry of the lower court; pages 194 – 195 of the records, On the same day the Appellant filed a motion in which it sought the following reliefs (as set out by the Appellant in his brief):

(i) “An order setting aside the issuance and consequent service upon the 1st Defendant/Applicant (the Appellant) of the concurrent writ of summons purportedly issued out of the registry of this Honourable Court (the lower court) on 16 May, 2008.