Lemna Nigeria Limited & Ors V. La’iyoba Nigeria Limited (2016)

LawGlobal-Hub Lead Judgment Report

PAUL OBI ELECHI, J.C.A. 

This is an appeal against the interlocutory decision (Ruling) of the High Court of Cross River State, Calabar Division delivered by Honourable Justice F. Nnang Isoni on the 1/4/2014 dismissing the Appellants Notice of preliminary objection challenging the Writ of Summons on the grounds of non-Certification and improper service contrary to Order 8 Rule 2(3) and Order 12 Rule 2 of the High Court of Cross River State (Civil Procedure) Rules, 2008.
The brief facts of this case is that the Respondent instituted this suit via a writ of summons dated and filed on the 23rd January 2014 seeking to enforce the terms of three equipment lease agreement between it and the Appellants. The said writ was duly served on the 1st Appellant. On the 27th day of January 2014, the Appellants filed a joint memorandum of appearance and followed it up on the 20th February 2014, by filing a Notice of Preliminary Objection challenging the jurisdiction of the Lower Court to entertain the suit on two grounds to wit:
(1) Whether failure to serve the 2nd and 3rd Defendants as required by the Rules of Court has not robbed

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the Court of the jurisdiction to hear this suit.
(2) Whether non-compliance with the mandatory provisions of Order 8 Rule 3 and Order 12 of the High Court of Cross River State (Civil Procedure) Rules 2008 is not fatal to this case?

The Respondent filed a Written Address in opposition to the Appellants’ Preliminary Objection on the 24th February 2014.
Both processes were adopted and relied upon by parties. On the 1st April 2014, the learned trial Judge delivered a considered Ruling dismissing both grounds of Preliminary Objection.
Dissatisfied with the said Ruling, the Appellants appealed on two grounds.

From the two grounds of appeal, the Appellant distilled one issue for determination viz:
(1) Whether in the light of the decision of this Court, it unreported Judgment in Appeal No. CA/C/174/2009: ONUN OTU ECHU IGRIGA V. ELDER EFFIONG OKON BASSEY, the Learned trial Judge was right in over ruling the Preliminary Objection of the Appellants?

To argue this issue, Learned Appellants’ Counsel stated that their contention in the Preliminary Objection was that the Respondent did not comply with the provisions of Order 8 Rule 2(3)

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and Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008. Against the above provision, Learned Appellants’ Counsel submitted that the procedure for issuing of a Writ of Summons does not permit for substantial compliance because the provisions of Order 8 of the Cross River State (Civil Procedure) Rules 2008 are not disjunctive but are conjunctive. The validity of issuing a valid originating process goes to the root of the matter. SeeKIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) 402 at 406. Also that the word ‘SHALL’ as cited in both Order 8 Rule 2(3) and Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008 imports mandatoriness as opposed to permissiveness. See FIDELITY BANK PLC VS. MONYE (2012) 4 FWLR (PT. 1291) IBAKU v. EBINI (2010) 17 NWLR (PT. 1222) 286.

On the basis of the above, Learned Appellant Counsel then urged the Court to allow the appeal, set aside the Ruling delivered in Suit No. HC/26/2014 on the 1st April 2014, strike out the Writ of Summons and other Originating processes in Suit No. HC/26/2014 and finally to strike out Suit No. HC/26/2014 for being incompetent.

In reply, the

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Respondents filed and raised a Preliminary Objection to the competence of the Notice of Appeal filed on the 3/4/2014 together with one ground of appeal and urged the Court to strike out the said ground and the entire Notice of appeal together with the Appellants’ brief predicated thereon.
The grounds of the Objection he stated include:
(1) That Section 14(1) of the Court of Appeal Act 2011 and Section 243(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandatorily requires that the Leave of either the Lower Court or this esteemed Court be sought and obtained before a notice of appeal challenging on interlocutory decision can be validly filed.
(2) That the Appellant/Respondents did not seek and obtain Leave of either the Lower Court or this esteemed Court before they filed their notice of appeal on the 3/4/2014.
(3) That the aforesaid notice of appeal purportedly filed on the 3/4/2014 is invalid and therefore incompetent to sustain the appeal.
(4) That a party cannot raise two issues or complaints in the same ground of appeal.
(5) That ground one of the grounds of appeal at pages 88-89 of the records

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