Drexel Energy And Natural Resources Ltd & 2 Ors V Trans International Bank (2008)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, JSC

The Respondents who were the plaintiffs in the trial Court claimed in their joint writ of summons dated 21/3/98 and filed at the High Court of Justice, Ibadan, Oyo State the sum of N20,058,304 as debt owed them by the Appellants, who were the Defendants at the trial Court. The addresses of the service as supplied/endorsed in the said writ of summons are stated as follows:

“1st to 3rd defendants 9A Raymond Njoko Road, Ikoyi, Lagos. 4th defendant Lekki Express way Victoria Island, Lagos”

This writ of summons was filed and issued without the leave of the trial High Court. The same writ was served on the Appellants by means of substituted service by publishing same in the Guardian Newspapers. On becoming aware of the suit, the Appellants filed a motion on Notice dated 19/4/99 in which the trial High Court was prayed for the following reliefs:

(i) AN ORDER dismissing and/or striking out this action for want of jurisdiction.

(ii) AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.”

The grounds for the application were stated as follows:

(1) That 30 (thirty) days period prescribed by the provisions of Section 99 of the Sheriffs and Civil process Law of the Federation, 1990 have not been complied with.

(2) The subject matter of the Suit is a contract entered in to in Lagos to be performed in Lagos and

(3) All the Defendants/Applicants reside and carry on business in Lagos and it will not be convenient for any trial in respect of the Subject matter of any other matter to be tried in Oyo State or any other State except where the defendants are resident and Or carry on business.

On the 30/7/99, the trial High Court per Adekola CJ, dismissed the application. In his ruling on this application, learned trial Judge held as follows:-

“In the circumstance, the plaintiff has complied with the provisions of section 99 of the Sherrifs and Civil process Act by the endorsement of 30 days within which the defendants are to enter appearance after the Service of the writ of summons on them. There is difference and distinction between the validity of a writ of summons and the validity of service of the writ itself. See Adegoke Motors Limited v. Dr. Babatunde Adesanva; Mr. F.O Odesanva (1989) 3 NWLR (Pt 109) 250”

On the Issue of the defendants residing in Lagos, the learned trial High Court held thus-

“Regarding whether Or not the contract was entered into in Lagos and was to be performed in Lagos, that issue cannot be safely determined at this stage of the proceedings. When One looks at the wordings of the writ of summons and the averments contained in the statement of claim, it will be premature for the Court to say that the place where the contract was entered into was Lagos and that Lagos was also the place where the contract was to be performed.