Mr. Emmanuel Oluyede V. Chief Mrs. Oluremi Adeyanju (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU (OFR), J.C.A. (Delivering the leading Judgment)

This appeal was heard on the appellant’s brief alone. On the application of the appellant, praying that the appeal be heard on his brief alone since the respondent has failed to file her own brief after she was served with the appellant’s brief. The application was granted on 9/1/2010. The appeal was heard initially on 10/3/2010. It was re-heard again on 21/6/2010 and judgment was reserved.

Under the appellant’s brief dated 16/3/2009 and filed on the same date, the appellant formulated the following two (2) issues for determination.

ISSUES IN THE APPEAL

A. Whether it is legally permissible to cause to issue, file and serve the writ of summons and statement of claim outside jurisdiction without leave of court having first being sought, had and obtained.

B. Whether order for substituted service can be made without attempt at personal service.”

Under issue ‘A’, the appellant argues that it is not legally permissible to issue, file and serve the writ of summons and statement of claim or any court process at all on the appellant that resides outside jurisdiction of the Honourable Court without the leave of the Honourable Court having first been sought, had and obtained. Such an application for leave is made ex-parte before effecting service on the defendant/appellant see Order 5 Rules 6 and 14 of Ondo State High Court Civil Procedure Rules (applicable to Ekiti State). These provisions have been reproduced in the brief.

However, despite the above rules, the appellant stated at page 5 in Article (iii) of his brief as follows:

“(iii) On 14th February 2007, the lower court granted respondent’s application for leave to issue and serve the writ of summons and statement of claim and other court processes on the appellant at 2B14, Ilepa Street Ikare-Akoko a place outside the jurisdiction of the Honourable Court.

(iv) By the order of the lower court of 14th February 2007, it is expected that the respondent would file his writ of summons and statement of claim after 14th February 2007 and not 20th December 2006…”

See URUME VS. AGBORO (2001) 11 NWFR (PT. 723) 206 AT 220; DERBY POOLS LTD VS. OCHEME (1991) 7 NWLR (PT.203) 323 AT 335 where the court held as follows:

“If appellant is to be served outside jurisdiction of Benue State High Court, it follows that leave of the court below ought to have been sought and obtained to issue and served the writ of summons outside the jurisdiction. Failure to do this is a fatal delect to this case.”

See also UBN PLC VS. SOGUNRO (2006) 16 NWLR (PT.1006) 504 AT 524. All cited by the appellant in support of his above submission. The appellant then argues that there is no valid authentic, genuine, lawful and regular writ of summons or statement of claim in the suit herein since leave to issue and serve outside jurisdiction was not first sought, had and obtained. The condition precedent had been side tracked in this case or sidelined – see PORBENI VS. P.F. & INVESTMENT CO. (2002) 3 NWLR (PT.754) 452 AT 468.

This explains why the appellant made a conditional appearance at the lower court on 31/7/2007 and challenged the writ of summons and the statement of claim to be set aside. The conditional appearance was on 17/4/2007.