Mr. Muyiwa Odejayi & Anor V. Henley Industries Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Respondent/cross-appellant (as claimant) took out a writ of summons at the High court of Lagos State against the Appellants/Cross-Respondents (as defendants). The claim as endorsed in the writ and statement of claim was for declarations and mandatory injunction restraining the defendants from selling or taking over for purposes of sale the claimant’s assets situate at its factory premises until there is a court order to do so. Pleadings were duly filed and exchanged. The matter was set down for pre-trial conference during which several applications were made by the parties.

Subsequently, after four years of being in court, the defendants, by motion on notice dated 11th day of June 2010 raised an objection to the jurisdiction of the Court on the ground that the writ of summons dated 2/2/06 signed by ISAAC M. BORO & CO is incompetent and incurably defective. The claimant in vehement opposition to the motion filed a written address. The learned trial judge, Pedro J. after hearing the parties delivered her ruling on 21/12/10 dismissing the objection. The defendants being dissatisfied with the decision filed a notice of appeal on 4/1/11 containing two grounds of appeal.

The claimant being also dissatisfied with the reasons given by the learned trial judge for her decision, on receipt of the notice of appeal by the defendants/appellants also filed a cross appeal against the ruling. The notice of Cross Appeal dated 18/1/11 also raised two grounds of appeal.

As is customary in this court, the parties filed and exchanged briefs of argument. The appellants’ brief of argument is dated and filed on 4/3/11. The Respondent/cross-appellant’s brief of argument is dated and filed on 6/4/11. The cross-Respondents’ brief of argument and their reply brief are both dated and filed on 21/4/11.

The appeal came up for hearing on the 25th day of February 2013. Learned counsel for the Appellant/cross-Respondent informed the court that they filed a notice of preliminary objection to the cross-Appellants brief of argument and that the objection was argued in their brief. The parties thereafter duly adopted and relied on their respective briefs of argument.

In view of the preliminary objection to the Cross-appeal and the observation of Onnoghen JSC in Adekoye v. N.S.P.M.C. Ltd (2009) 5 NWLR (Pt.1134) 322 @ 338 that although it is the normal practice when there is a main appeal and a cross-appeal to resolve the issues raised in the main appeal before going on to those of the cross-appeal, where the issue raised in the cross-appeal touches on jurisdiction, it is better to deal with it first; I shall take the cross-appeal before the main appeal.

CROSS-APPEAL

The cross-Appellant in his notice of cross-appeal dated 18/1/11 at page 42-45 of the record of appeal raised two grounds of appeal out of which he formulated the following sole issue:

“Having regard to the fact that the name and signature of Isaac M. Boro Esq,, the solicitor of the Respondent who issued the writ of summons was clearly endorsed on the writ of summons, whether the learned trial Judge was right in ordering the amendment of the writ of summons (grounds one and two of the notice of cross-appeal)”

CROSS-APPELTANT’S ARGUMENTS:

Learned counsel for the cross Appellant in her brief of argument submitted that the relevant provisions which the lower court ought to consider in reaching a decision on the competence of the writ of summons as to the content and form of the writ are order 3 Rule 3 of the High court of Lagos state (civil procedure) Rules 2004 which provides:

“Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.”

Counsel argued that the writ of summons which is made pursuant to Order 3 Rule 3 made no provisions at all for the signature of the legal practitioner who issued the writ that by the provisions of the Form, the only signature needed is that of the Registrar. Counsel argued that the writ of summons in the instant case satisfied the requirements of the law i.e. order 3 Rule 3 and Form 1. Counsel Submitted that the lower court was wrong to have ordered an amendment of the writ of summons as there was no legal reason for the order there being no irregularity on the writ that requires any amendment. Counsel urged the court to hold that the writ of summons is regular, valid and competent.