United Bank For Africa Plc V. Mr. Abbas Issa Mohammed & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

The thrust of this appeal is focused inter-alia on service of a writ of summons outside jurisdiction of this court and this appeal against the ruling of Honourable Justice J. F. Gbadeyan on an interlocutory application delivered on 26/12/2008, wherein the lower court dismissed the application of the appellant challenging the service as well as service of summons out of jurisdiction. Being dissatisfied with the lower court’s ruling the appellant filed a notice of appeal containing five grounds of appeal.

The appellant distilled three issues for determination and the respondents too distilled three issues for determination.

On the 23rd day of November, 2010, the appellant’s counsel Adedayo Adediji adopted his brief of arguments dated the 17th day of April, 2009, and filed 20th day of April, 2009; he prayed this court to allow the appeal.

The respondent counsel M. H. Adeniyi adopted his brief of argument dated 4th day of November, 2009, and filed same date, he prayed this court to dismiss the appeal.

Ground 5 of the Notice of Appeal was abandoned and same was struck out.

The appellant’s issues as formulated are.

i. Whether the appellant was given fair hearing by the learned lower court in the determination of this application dated 30/7/2008.

ii. Whether by the combine provisions of Section 97 of the Sheriff and Civil Processes Act and Order 2 rule 9 of the High Court (Civil Procedure) Rule 2005, the respondent’s failure to first seek and obtain the leave of the lower court before the issuance of the writ of summons for service on the appellant in Lagos outside the jurisdiction of the lower court renders the writ of summons invalid, incompetent, null and void and of no effect.

iii. Whether the 2nd respondent as a juristic person can sue and or bring the instant suit against the appellant and whether the suit could be maintainable when the name of the 2nd respondent is stuck out from the suit.

The respondents on their own formulated the following issues.

i. Whether the appellant has been denied fair hearing by the lower court.

ii Whether by combine effect of provisions of section 78 of the Company and Allied Matters Act 1990 (CAMA) and Order 7 Rule 9 Kwara State High Court (Civil procedure) Rules, 2005, the processes of the trial court was not properly issued and served on the appellant.

iii Assuming (though not conceding) that the 2nd respondent is precluded from suing the appellant whether this suit is not only maintainable by the 1st respondent in the circumstances of this case.