International Tobacco Company Limited V. The Attorney-general Of Ogun State & Ors. (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M.B. DONGBAN-MENSEM, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the Ruling of Hon. Justice O. O. Olapade of the Ogun State High Court of Justice Holden at Abeokuta Judicial Division. The Ruling was delivered on the 20th day of May, 2010 in favour of the 1st Respondent as the Claimant/Respondent against the Appellant as the 2nd Defendant/Applicant. The Ruling is at pages 392-434 of the record of proceeding.

The parties shall be referred to in this Judgment as Appellant and Respondent respectively. The Appellant was dissatisfied with the said ruling and appealed to this court by the notice of appeal dated 3rd June, 2010 in which five grounds were raised against the Judgment as contained in the records of proceedings (pages 232-235 of the record for this appeal).

The 1st Respondent commenced this action by a motion ex parte dated 23rd April, 2008 brought under Order 5 Rule 14 and Order 12 of the Ogun State High Court (Civil Procedure) Rules 1987 and the inherent jurisdiction of the High Court, and the leave to serve the Appellant with a “Concurrent Writ of Summons” and “Statement of Claim” at its registered office in England outside the jurisdiction of the High Court of Ogun State. Hung being so served the Appellant filed a notice of preliminary objection pursuant to Order 1 Rule 1(1), Order 3 Rule 1-4, Order 6 Rule 1-9 of the Ogun State High Court Civil Procedure Rules 2008.

The Appellant sought the following reliefs:

1. An Order setting aside the issuance and consequent service upon 2nd Defendant (Appellant) of the “Concurrent Writ of Summons” purportedly issued out of the registry of the lower court on the 26th of February, 2008 and dated 16th May, 2008.
2. A consequential Order striking out of the suit by reason of the fact that it was not initiated by due process of law.

The grounds for objection were as follows:-

1. An originating writ of summons was not applied for, neither was one issued out of the registry of the lower court (Ogun State High Court) as required by Order 5 Rule 1 of the High Court of Ogun State Civil Procedure Rules 2008.
2. An originating writ was not issued out of the registry of the lower court in respect of the writ.
3. The 1st Respondent only applied to the lower court for leave to issue a concurrent writ of summons out of the registry of the lower court.
4. The said concurrent writ was neither signed nor dated.
5. Based on the above grounds the purported issuance and consequent service of the concurrent writ of summons upon the Appellant violates Ogun State High Court Rules as to issuance of a valid writ of summons.

Two issues for determination as follows:-

i. Was the court below correct to reject the Appellant’s argument that the 1st Respondent’s failure to comply with their requirements of the 2008 High Court Rules with respect to the mode of commencement is fatal and all subsequent proceedings are a nullity, (this issue is distilled from ground one of the Notice of Appeal)

ii. Was the court below correct to hold that failure of the registrar to sign the court’s copy of the writ of summons does not invalidate the issuance and subsequent service of the writ of summons on the Appellant even after confirming that it was not signed. (This issue is distilled from ground two).

Conversely the 1st Respondent formulated a lone issue for determination as follows:-

i. Was the trial court right to have held that the 1st Respondent satisfied the requirement for issuance of the writ of summons issue on the 15th May, 2008 having regard to the provision of Order 5 Rules 1, 8(1) & 14 of the applicable rules of court on the issuance of forms 1, 2, 3, and 4 with necessary variation as the circumstances may require?

APPELLANT’S CASE

ISSUE ONE

Counsel for the Appellant submits that Rules of court are made to be obeyed as it aids in the attainment of justice and that noncompliance with the rules of court makes a proceeding incompetent. (Chime v. Eze (2009) 2 NWLR (Pt.1125) @ 263, Ngige v. Achukwu (2005). Counsel submits that the absence of signature of the registrar on the Writ of summons in the courts file renders the one’s serve on the Appellant a nullity, void and that that the trial court erred to have rule that it was not the fault of the Respondent as such writ was properly issued.