Taraku Mills Ltd & Anor V. Sant Engineering Ltd & Anor (2008)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

The Applicants herein are Plaintiffs in Suit No. LD/1719/2004 pending before the High Court of Lagos State. In that suit they claimed against the Respondents the following reliefs: –

“1. The sum or ?844, 191.00 (Eight Hundred and forty’9197four thousand, one hundred and ninety one rounds sterling) from the Defendants Jointly and severally.

2. Interest on this sum of ?844, 191.00 at the rate of 21% per annum from November, 2002 until final liquidation of the same.”

However, by a motion on notice dated and filed on the 18th October 2004 at the lower Court, the Defendants before that Court sought for an order setting aside the writ of summons dated 5th October 2004, which was issued against them by the Applicants herein, The grounds upon which that application was filed are set out at page 169 of the record of the appeal as follows: –

“(a) That the defendants reside and carry on business in Taraku Benue State which is out of the jurisdiction of Lagos State High Court.

(b) That the action or the plaintiffs based on contract executed in Makurdi State where the 1st defendant also carries on business. The contract was allegedly performed at Taraku, Benue State. The Lagos State High Court lacks jurisdiction to entertain or to hear and determine the matter.

(c) That the writ of summons is a nullity as it does not have the endorsement required by Section 97 Sheriffs and Civil Process Act.”

This application was heard by Rhodes-vivour J. as he then was and in a reserved and considered ruling which was delivered on the 18th February 2005, same was dismissed. Curiously however, the notice of appeal against this ruling which is dated and filed on the 3rd of March 2005 was filed by the Plaintiffs at the lower Court and not by the Defendants whose application, for an order setting aside the writ of summons, was dismissed. The notice of appeal is at page 193 of the record of appeal.

Because the notice of appeal says, Sant Engineering Limited and Kaj Nigeria Limited are the Appellants, the parties set out in this application before us do not actually reflect the state of the appeal before this Court and that makes the application dated and filed on the 23rd of January 2008 incompetent.

Be that as it may, however, I wish to consider the application aforesaid on the merit, in case I am wrong in my declaring the application incompetent.

The Applicant’s prayer as set out on the face or the motion on notice of 23rd January 2008, read as follows:-

“(i) Extension of time to seek leave to argue the issue that the Defendants/Appellants waived their right to object to any irregularity In the writ;

(ii) An order for extension of time within which to file and serve a Respondent’s Notice to support the judgment of the trial Court on other grounds;

(iii) Deeming the said Respondent’s Notice (already filed and served) as properly filed and served;