Mcveil Investment Limited & Anor V. Abiola Olufunmilayo Ofolue (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against an interlocutory Ruling of Opesanwo J. of the High Court of Lagos State in Suit No. ID/776/2006 delivered on the 30th day of January, 2012. The Respondent as Claimant at the Court below initiated an action by a writ of summons dated 20th June, 2006 against the Appellants as Defendants.

The said writ of summons was accompanied (in compliance with Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 with requisite frontloaded documents, to wit, the statement of claim, list of witnesses and list of exhibits.

The writ of summons was prepared and signed by one Ogundiji Osazee Melody, Esq., a Legal Practitioner in the law firm of Messrs Enitan Associates but the Statement of claim and other front loaded documents were signed by the law firm ‘Enitan Associates’.

The Appellants entered appearance and filed their statement of defense and counter-claim. Trial subsequently commenced. After the Respondent closed her case, the Appellants filed an application challenging the competence of the statement of claim and other front

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loaded documents and praying the Court to strike out the suit on the ground that the documents were not signed by a Legal Practitioner known to law. The Respondent also filed an application seeking to amend the front-loaded documents by replacing or substituting the signatory in the aforesaid processes “Enitan Associates” with “Ogundiji Osaze Melody” who also endorsed the writ of summons.

The learned Trial Judge heard arguments in respect of the two applications together and delivered a ruling granting the application of the Respondent to amend the processes and dismissing the Appellant’s application. The Appellants being dissatisfied with the ruling of the learned trial Judge appealed against it by Notice of Appeal containing three grounds of appeal.

The 1st Appellant did not file any brief of argument. During the hearing, J. O. Wewe (Miss) holding the brief of Martins Oyigbo for the 1st Appellant indicated that they are aligning with the argument of the 2nd Appellant in his brief of argument.

?The brief of argument of the 2nd Appellant was settled by M. O. Omonusi Esq. Out of the three grounds of appeal, he distilled the following three

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issues for determination:

a. Whether the statement of claim, the list of witnesses and list of exhibits with which this suit was commenced are competent?

b. If the answer to the above is in the affirmative, whether the suit ID/776/2006 commenced with only a valid Writ of summons under the High Court of Lagos State Civil Procedure Rules of 2004 is competent?