Broad Bank Of Nig. Ltd. V. S. Olayiwola & Sons Ltd. & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The appellant had instituted an action by writ of summons against the respondents who lives outside the jurisdiction of Lagos State and on the same day filed an ex-parte application praying for leave of the court to issue the writ and serve same outside the jurisdiction.The prayers sought in the motion paper were granted and later the respondents were served.

The respondents filed a notice of preliminary objection to set aside the issuance and service of the writ and the statement of claim, and also to strike out the suit. In the course of the argument one of the questions that arose for determination by the court was which rules of court applied id est,- the 1972 Rules or the 1994 Rules of Lagos State High Court. The High Court held that it was 1972 Rules that applied in the case and ruled inter alia as follows:-

(a) that the applicable rule is 1972 rules.

(b) that the grant of leave to issue a writ for service out of jurisdiction can be obtained before or after

the filing of the writ provided it is obtained before service of the writ itself.

(c) that once the defendants are given 30 days to enter appearance, the number of days specified in

the writ does not matter. The writ not having been endorsed for service out of the jurisdiction is

incompetent.

The appellant piqued by the ruling of the court below appealed to the Court of Appeal on the questions of applicable rules of court, and also on the writ not having been endorsed. The respondent cross appealed on the aspect of the decision dealing with subsequent leave to issue and serve and the number of days limited for appearance. The Court of Appeal dismissed the appeal and allowed the cross-appeal. The appellant doggedly appealed to this court. On the strength of the grounds of appeal filed, three issues were framed by the appellant and they are as follows:-

“(a) whether the learned Justices of the Court of Appeal were right in holding that obtaining leave

to issue after the filing of the writ of summons but before actual service of same on the defendants is bad in

law

(b) whether the learned Justices of the Court of Appeal were right in setting aside the service of the writ of summons, statement of claims and other originating processes on the defendants in Osun State of Nigeria on grounds of the non endorsement of the writ and the stated time for appearance on the processes served