K.B. Dallaz Motors Limited & Anor V. Mr. Samuel Ayodele Borokini & Anor (2004)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ ABA, J.C.A.
This is an appeal against the Ruling of the Kaduna State High Court, holden at Kaduna in Suit No. KDH/KAD/528/00, delivered on 24/4/2001. The appellants who are the plaintiffs claim jointly and severally against the defendants as follows:-
“1. The sum of N2, 550, 000.00 being the market value of Peugeot 504 Saloon Car Best Line Engine/chasis No. 6159521 as at 23rd January, 2000, which was taken away from his possession in Kaduna, upon consideration i.e. promise that has totally failed.
1. Interest of 25% from the 23rd of January, 2000 until Judgment is delivered.
2. General damages in the sum of N2, 500, 000.00.”
Upon being served with the writ of summons, a Notice of Preliminary Objection dated 4/12/2000 was filed on behalf of the 2nd defendant/applicant, raising objection to the hearing of the suit and shall urge the court to strike out the writ of summons on the 2nd defendant/applicant for non-compliance with the Rules of the trial High Court. The grounds are:-
“1. Leave to issue writ of summons out of Jurisdiction was not sought.
2. This Honourable Court did not give order for writ of summons to be issued outside the jurisdiction of this Honourable Court and hence the Defendant/Applicant cannot be served same.”
While a motion on Notice dated 27/2/2001 was filed on behalf of the 3rd Defendant/applicant praying for:
“(i) AN ORDER striking out the entire suit as it concerns the 3rd Defendant for incompetence and lack of jurisdiction.
(ii) AND for such further or other order(s) as the Honourable Court may deem fit to make in the circumstances.
GROUNDS
The present action is incompetent against the 3rd Defendant for its failure with the statutory provisions of Section 174 of the Local Government Laws Cap 63 Laws of Ondo State of Nigeria.”
The motion was supported by a three paragraph affidavit deposed to by one Chief Bankole Ogunlusi, Litigation Officer of Akure North Local Government Iju Ita, Ogbolu. Paragraphs 1 and 2 of the affidavit a reads as follows:-
“1. That I am the Litigation Officer in charge of of all Legal correspondences and Court’s processes concerning the 3rd Defendant.”
2. That prior to the commencement of this present action the Plaintiff did not serve the one month statutory Notice on the 3rd Defendant.”
Arguments on the preliminary objection, motion for striking out and response were taken on 6/4/2001. In its reserved and considered ruling delivered on 24/4/2001, the learned trial Judge at pages 58 – 59, said,
“Mr. Daudu SAN pointed out that the issue of the writ is an administrative matter. I agree. But where the writ of summons is to be served outside Jurisdiction before the Registrar performs this administrative function, leave of court must be sought and obtained. It is not enough merely to seek leave to serve the writ of outside jurisdiction as the plaintiffs have done in this case. As the plaintiff have not sought and obtained leave of court or Judge to issue the writ and serve same out of the jurisdiction of this court thereby breached a fundamental statutory requirement and the writ shall be declared a nullify. See NEPA VS. ONAH (1997)1 SCNJ 220 AT 228 and ODUA INVESTMENT CO. LTD. VS. TALABI (1997) 10 NWLR 1 at 30.”
On the second ground of objection, the learned trial Judge at page 59 of the record, said,
“S.174 of the Local Government Law Ondo State reproduced above is very clear, wide and all embracing.
It speaks of all suits not being commenced until a Notice of One month has been given. It is not disputed that no such notice has been given in this case before its commencement.”
In conclusion at page 69 of the record the learned trial Judge held:-
“As Mr. Afolabi rightly submitted the power of State Legislature to make laws for the running of these Local Governments over the years has never been affected by any Federal Legislation. Therefore the doctrine of covering the field does not apply in this case. Therefore I agree entirely with Mr. Afolabi learned counsel for the 3rd defendant that the condition precedent for the exercise of the court’s jurisdiction is lacking. See MADUKOLU VS. NKEMDILIM (supra). On this ground too this suit should be struck out for being incompetent. It is clear from the foregoing, that both objection should be upheld on both grounds. I accordingly do so. The writ of summons as it relates to the 2nd and 3rd Defendants should be struck out for being incompetent and a nullity. The suit as it concerns the 2nd and 3rd defendants is hereby struck out as prayed.”
Being dissatisfied with the Ruling, the appellants appealed to this court by its notice of appeal dated 11/5/2001, containing two grounds of appeal. By a motion dated 3/9/2002, filed on 4/9/2002, the appellants prayed for: –
“(1) An order grating the applicant/appellant leave to file and argue additional ground of appeal and in particular adding additional ground of appeal 1 numbered 3 in the annexed Notice of additional ground of appeal.”
The said prayers along with others were granted on 29/10/02.
In accordance with the Rules of Practice and procedure briefs of argument were filed and exchanged by counsel to the parties.
In the appellants’ brief dated 3/11/02, filed on 4/11/04, three issues were formulated for determination in this appeal, they are as follows:-
“2.1 Whether the order made by the High court on 22/9/00 satisfied the requirement of Order 5 Rule 6 of the High Court Rules and whether the trial court was correct when it held that it was not sufficient merely to seek the leave of court to serve a writ of summons outside jurisdiction but that the plaintiff ought to have sought for leave to issue and serve the writ outside Jurisdiction?
2.2. Whether 3rd defendant did not waive his right to Complain about any irregularity or defect (if any) in the proceedings?
2.3. Whether the Local government Law Cap 63 of 1976 Laws of Ondo state can be described as an existing law so as to bring about an invocation of the pre-action notice, a condition precedent to jurisdiction?”
The respondents in their joint Respondents’ brief at page 4 of their brief adopted the issues formulated in the Appellants’ brief for determination in this appeal.
After carefully going through the grounds of this appeal, I observed that ground of appeal N0.3 for which leave of court was sought and obtained to be filed as an additional ground of appeal is raising a fresh point of waiver which was neither raised by neither the parties nor the trial court.
To argue in this court issues on matters which were not argued in the trial court one has to apply specifically for leave to do so. The application for leave to file and argue additional ground of appeal is not quite the same as an application for leave to argue and urge issues not raised in the court bellow. As there was no specific application to argue a fresh issue the additional ground of appeal N0.3 is incompetent. The general rule adopted by this court is that an appellant will not be allowed to raise, on appeal, a question, which was not raised or argued in the court below without first applying and obtaining the leave of this court. See OBIOHA VS. DURU (1994) 10 SCNJ 48, 64 and ADIO VS. STATE (1986) 2 NWLR (PT.24)581 – 588.
It is settled that a point not taken in the trial court cannot, without leave of the Court of Appeal, be taken for the first time in the Court of Appeal. See ALADE VS. ALEMULOKE (1988) 1 NWLR (PT.69) 207 at 218 and AJUWON VS. ADEOTI (1990) 2 NWLR (PT.132) 271. It is equally settled that the application for leave to argue fresh issues should be made by way of motion and must be duly granted before the date of arguing the appeal. See LEBILE VS REG. TRUSTEES OF C & S AND ORS. (1996) 2 NWLR (PT.431) 494.
As the leave of this court was not first sought and obtained to argue a fresh issue raised by the appellants’ ground of appeal, No.3, I hold that ground of appeal NO.3 is incompetent and is struck out along with issue NO. 2 formulated therefrom. The appellants are now therefore left with only two grounds of appeal that is grounds 1 and 2 from which issues Nos. 1 and 3 were formulated.
Learned senior counsel for the appellants on his issue No.1 first referred to the conclusion of the court at page 58 of the record and submitted that the lower court was in error when it considered the leave sought to serve outside jurisdiction as insufficient to satisfy the requirement of Order 5 Rule 6 of the High Court Rules.
According to the learned senior counsel for the appellants, it is unusual and indeed inexplicable to expect that leave will be required before the High Court issues her writ in any circumstance. Pointing out that the issuance of writ is an administrative matter, clearly within the purview of the Registrar and referred to Order 5 Rule 1 of the High Court Rules which he reproduced at page 8 of the appellants’ brief. Relying on NEPA VS. ONAH (1997) SCNJ 22 at 228 and ODUA INVESTMENT CO. LTD VS. TALABI (1997) 10 NWLR he contended that the position in the authorities cited and relied upon lay more emphasis on leave to serve writ outside jurisdiction, the failure of which would vitiate a writ of summons and renders it null and void rather than obtaining special leave for writ of summons to issue.
Reference was made to the provisions of Order 5 Rule 6 by the learned senior counsel who argued that in interpreting the provision, the requirement is that the writ of summons shall not be issued unless and until leave to serve out of jurisdiction is obtained which he said is in accord with the decision of the Supreme Court of Nigeria in NEPA VS. ONAH (supra). He referred to EZOMO VS. YAKHIRE (1985) 1 NWLR (PT.2) 195 and argued that Order 2 Rule 16 of the Bendel State High Court interpreted by the Supreme Court is in pari materia with Order 5 Rule 6 of the High Court rules under consideration. Reference was particularly made to page 208 on the point. He urged the court to resolve issue No. 1 in favour of the appellant.
Responding to the submission of the learned senior counsel for the appellant, learned counsel for the respondents in the Respondents’ Joint brief of argument dated 28/2/03, filed on 11/3/03 commenced by first reproducing the provisions of Order 5 Rule 6 and 14 of the Kaduna State High Court (Civil Procedure) Rules, 1987 and submitted that Order 5 is not concerned with service of process it is only concerned with the issue of the writ of summons.
He argued that Rules 6 and 14 of Order 5 are clear and that leave is required to issue and serve the writ of summons out of jurisdiction, citing NEPA VS. ONAH (2002) F.W.L.R. 1768 at – 1783 in support of his submission. Learned counsel for the respondents concedes that the issuance of a writ of summons is an administrative matter within the purview of the Registrar. He however argued that the leave is not automatic in that there must be an application ex -parte supported by an affidavit setting out relevant facts clearly and frankly.
Learned counsel further submitted that the applicants’ application must show that he has a good and arguable case on the merits and must satisfy the court that it is proper to exercise its discretion to grant leave. That the requirement for leave to issue a writ of summons for service out of jurisdiction is not merely to benefit the defendant only but the parties as well as the court. Reference was made to ODUA INVESTMENT CO. LTD. VS. TALABI (1997)10 NWLR (PT.523) 1 at 59 by the learned counsel who argued that “issuance of Civil Process” and the service of such process are two distinct issues but interrelated. He urged the court to resolve issue No.1 against the appellants.
As the contention of the parties in this appeal is mainly on the interpretation and effect of the provisions of Order 5 Rule 6 of the Kaduna State High Court (Civil Procedure) Rules, 1987, it is pertinent to reproduce the provisions as well as other related provisions.
Order 5 Rules 6, 14 and 15 are relevant and are hereby reproduced below: –
“(1) A writ summons be issued by the Registrar, or other officers of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiffs solicitor by completing Form 1 in the Appendix to these rules, but the Registrar or other officer as aforesaid, where the applicant for writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.
(6) Subject to the provisions of these rules or of any Written law in leave to force in the State, no writ or summon for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of Court or a Judge in chambers.
(14) No writ which, or notice of which, is to be Served out of the jurisdiction shall be issued without leave of the Court.
Provided that if any claim made by a writ is one which by virtue of an enactment the Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provisions shall not apply to the writ.
(15) Issue of a writ takes place upon its being signed by the Registrar or other officers of the Court duly authorized to sign the writ.”
It is agreed by counsel to the parties as well as the trial court that the issuance of a writ of summons is an administrative matter. It seems to me that the position has been supported by the provisions of rules (1) and (15) reproduced above. As rightly argued by the learned Senior counsel for the appellants in my view, there is no provisions for counsel to appear before the Registrar or other officers of the court to make any application hence the submission of a writ of summons by a counsel to a party to the Registrar for his endorsement has satisfied the requirement of Order 5 Rule 6 of the Kaduna State High Court. (Civil Procedure) Rules. With respect to the learned counsel for the respondents, it appears to me that the learned counsel is confusing the requirement for leave to serve outside jurisdiction with leave to issue a writ of summons.
The learned counsel earlier agreed that the issuance of a writ is an administrative matter within the purview of the Registrar but proceeded to submit that the application is to be brought by an ex-parte motion supported by an affidavit and that the applicant must show that he has a good and arguable case on the merits. That he must satisfy the court that it is proper to exercise its discretion to grant leave. I believe that the learned counsel for the respondents must be referring to the application for a writ of summons to be served out of jurisdiction as provided by the provisions of Rule 14 of Order 5 of the Kaduna State High Court Rules.
In all the authorizes referred to the court by both counsel, I found that the issue raised and determined which vitiates a writ of summons is the failure of a plaintiff to seek and obtain leave of court for a writ summons to be served outside jurisdiction of the court. I have not been referred to a single authority on mere leave to issue a writ of summons. In fact there is nothing on the record to support the fact that no leave was granted to issue the writ of summons in this appeal since an endorsement by the Registrar or other official suffice.
In OZOMO VS. AYOKHIRE (1985) NWLR (PT. 1-2) 195 at 208 Karibe-Whyte, J. S.C., dealing with a case where the provisions of Order 2 Rule 16 of a High Court similar to the provision of Order 5 Rule 6 of the Kaduna State High Court Rules under consideration said:-
“Even if it is conceded that the writ of summons required leave of the Court for purposes of service outside the jurisdiction, what is the effect of non-compliance? There is no doubt that the main reason for the rule is to authenticate the writ of summons and the process to bring the defendant to court. Consequently the most effective remedy of the defendant is not to enter appearance and use the noncompliance as a ground for setting aside the service of the writ of summons. This was the procedure adopted by the defendants and endorsed by this Court in National Bank (Nig) Ltd. Vs. Shoyoye (supra) and Skenconsult Vs. Sekondy Ukey (supra). In each of these case the issue was raised by preliminary objection. The service of the writ of summons was in each case set aside. Service of writ of summons outside the jurisdiction without leave of the Judge or Court, does not render the writ itself a nullity. All that is affected is the service which is irregular and can be set aside.”
In view of the foregoing, I therefore agree with the submission of the learned Senior Counsel for the appellants that the application to serve outside jurisdiction has satisfied the requirement of the Rules and its non-compliance is a ground for setting aside a writ of summons.
I am strengthened in holding the view by the decision in Ozomo (supra). I therefore resolved issue NO.1 in favour of the appellant. With respect to the learned trial Judge I hold that he is in error in setting aside the writ as it concerns the 2nd and 3rd defendants on the ground of failure to seek leave to issue by the appellants as plaintiffs.
On issue NO.3 tied to ground of appeal No 2, learned Senior counsel for appellants, referred to section 174 of the Local Government Law of Ondo State, a portion of the Local Government Laws, the ruling on the issue and submitted that the learned trial Judge missed the point when he held that the powers of the State to run local governments have never been affected by the Military Decrees referred to. He gave the history of Local Governments, list of Decrees pertaining to Local Governments and submitted that the Legislative powers of States are limited strictly to personnel and financial matters. Reference was made to ATTORNEY GENERAL OF OGUN STATE AND 2 ORS VS. ATTORNEY GENERAL OF THE FEDERATION (1982) 1-2 S.C. 13, 16, 41 in support of this submission. In conclusion, learned Senior Counsel urged the court to resolve issue NO.3 also in favour of the appellants.
Learned counsel for the respondents in his response to the submission of the learned Senior Counsel for the appellants on issue No 3, stated that the provisions of section 174 of the Local government Law, 1976 of Ondo State is applicable and the failure to comply with the said provisions is fatal as it affects the jurisdiction of the court. He further stated that the Local Government Law 1976, Cap 63 of Ondo State was enacted by Ondo State for the running of Local Government under the enabling Laws.
He submitted that it is an existing law by virtue of section 315 of the 1999 Constitution consequently applicable in this appeal. Learned counsel further argued that the Notice of intention to institute an action as required by section 174 of the Ondo State Local Government Law, 1976 must per force indicate in unmistakable terms the cause of action, the relief claimed, the name and place of abode of the intended plaintiff and that no action may be commenced unless there has been due conformity with the said requirement in order to have a valid action, citing SHOMOLU L.G.C. VS. AGBEDE (1996) 4 NWLR (PT.441) 174, 181 in support of his summons.
Learned counsel for the respondents stated that in the instant case, it is not disputed that no such Notice has been given before its commencement.
Relying on TEXACO PANAMA INC. VS. SHELL PET CORPORATION OF NIGERIA (2000) 4 NWLR (PT.658) 408, 491, he submitted that the action is incompetent and the court lacks the jurisdiction to entertain the action. He urged the court to resolve issue No.3 against the appellants.
Section 174 of the Local government Law Cap 63, Laws of Ondo State provides as follows: –
“174 (1) No suit shall be commence against a Local Government until one month at least after written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or agent.
(2) Such notice shall state the cause of action the name and place of abode of the intending plaintiff and the relief which he claims.”
As stated by the learned trial Judge in his ruling the provisions of Section 174 of the Local Government Law, cap 63 Laws of Ondo State is very clear. In fact the issue between the parties is not the interpretation of the law but that whether it is applicable in the instant appeal. While the learned Senior Counsel for the appellants is of the view that it is not applicable having regard to the various enactments restructuring the Local Governments in the Federation by Military Decrees, the learned counsel for the respondents on the other hand is of the view that the Law is applicable in Ekiti State as an existing Law.
I do not think an authority is required to state that Ekiti State was created out of Ondo State and as the learned counsel for the respondents has rightly in view submitted that the Law is applicable to Ekiti State as an existing law by virtue of section 4 of States (creation and Transitional Provisions) Decree, No.36 of 1996 which created Ekiti State out of Ondo State and the Constitution. The relevant section reads:-
“4. All existing laws in the States out of which a new State is created by this Decree shall continue to have effect in the new State thus created, subject to such limits and modifications as may be necessary, to bring them into conformity with this Decree.”
Existing Laws derived their recognition from the Constitution of the Federal Republic of Nigeria, constitution of the Republic of Nigeria (enactment) Act, Cap 62, Laws of the Federation, 1990. Section 274(1) (b) (2) reads:-
“274 (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make such changes in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.”
It follows therefore from the provisions of section 4 reproduced above that section 174 of the Local Government Law, Laws of Ondo State Cap 63, 1976 is applicable in Ekiti State where the 3rd respondent resides unless abrogated. The onus of proving the abrogation of the said law is on the appellants and they have not discharged the burden.
Regulations of the right to access to the court abound in the Rules of procedure and are legitimate. In AMADI VS. NNPC (2000) 10 NWLR (PT.647) 76 at 110, KARIBI WHYTE said:-
“It seems to be accepted that where an enactment regulates the right of access to the court in a manner to constitute an improper obstacle to access to court, such enactments could be appropriately be regarded as infringement of Section 36(1) rather than an infringement of section 6 of the Constitution.
It was held that section 15 of Edict N0.3 1988 did not curtail the right of a person to sue in a chieftaincy matters. It is merely a condition precedent, which must be fulfilled before an action can be instituted. This and similar decisions of this court which have held that a pre-action notice is not inconsistent with Section 6(6) (b) of the Constitution.”
In view of the aforesaid, I hold that the learned trial Judge was right in setting aside the writ of summons as it concerns the 3rd respondent due to failure of the appellants to comply with the provisions of Section 174 of the Local government Law, Laws of Ondo State Cap 63 of 1976, I therefore resolved issue No 3 against the appellant.
From the foregoing, with the greatest respects to the learned trial Judge, I hold that he is in error in holding that the writ of summons as it relates to the 2nd and 3rd respondents is incompetent on the 1sl ground of objection and in striking out the writ of summons and the suit. However, I am in full agreement with the decision of the learned trial Judge in upholding the objection on the 2nd ground of objection and in striking out the writ of summons as it relates to the 3rd respondent for non-compliance with the provisions of Section 174 of the Local Government Laws Cap 63 Laws of Ondo State of Nigeria, 1976 which renders the writ of summons and the suit incompetent.
In the result, the appeal partially succeeds and is hereby allowed. The order of the learned trial Judge striking out the writ of summons and the suit as it concerns the 2nd and 3rd respondents/defendants is hereby set aside while the order striking out the writ of summons and the suit against the 3rd respondent/defendant is affirmed by me. It is hereby ordered that the writ of summons and the suit as it concerns the 2nd respondent/defendants be restored to the general cause list for hearing and determination suit on its merit. No order on costs.
Other Citations: (2004)LCN/1583(CA)