China Geo-engineering Corporation Nig. Ltd V. Alhaji Mustapha Isa (2007)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
The respondent in this appeal as plaintiff before the Katsina State High court instituted an action against the appellant as defendant vide a specially indorsed writ issued on 23/5/05. The plaintiff filed an ex-parte application dated 21/6/05 for leave to serve all the processes in the suit on the defendant in Kaduna State, outside the jurisdiction of the court by substituted means. When it came up for hearing the learned trial Judge noted some deficiencies in the supporting affidavit and ordered that it be re-sworn. The plaintiff however filed a fresh application dated 6/7/05 seeking leave to serve the defendant with all the processes outside the jurisdiction of the Court in Kaduna State. The motion dated 21/6/05 was struck out while the motion dated 6/7/05 was granted on 3/8/05. Upon being served with the writ of summons the defendant entered appearance on protest and filed a motion on notice dated 30/8/05 brought pursuant to Order 2 Rule 2 (1) and Order 5 Rule 6 of the High Court (Civil Procedure) Rules of Katsina State and under the inherent jurisdiction of the court, for the following orders:
- “An order to set aside the writ of summons in this suit on the following grounds:
a. The prior leave of this court was never sought and obtained before the issuance of the writ of summons in this suit.
- An order striking out the name of the defendant on the following grounds:
a. That the defendant in this suit is a non-legal person that cannot sue or be sued.
b. That the name of the defendant falls within the restricted/prohibited names under the Company (sic) and Allied Matters Act 1990.
- And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
Annexed to the 6-paragraph supporting affidavit were various exhibits marked A-D respectively. The plaintiff filed a 4- paragraph counter affidavit with three exhibits annexed thereto and marked A-C respectively. After hearing submissions from learned counsel to both parties, the learned trial Judge in a considered ruling delivered on 18/10/05, set aside the service of the writ of summons on the defendant and ordered fresh service to be effected on it in the name of C.G.C. Nig. Ltd.
The defendant/appellant being dissatisfied with the ruling filed a notice of appeal dated 24/10/05 consisting of two grounds of appeal. The grounds of appeal at pages 47-48 of the record of proceedings are as follows:
- “The High Court lacks jurisdiction to entertain the suit as presently constituted.
PARTICULARS OF ERROR
a. The prior leave of the High Court was not sought and obtained before the writ was issued on the 23/5/05; the writ being a writ for service outside the jurisdiction of Katsina State High Court.
b. The learned trial Judge having made a finding that leave was not obtained before the issuance of the writ of summons, ought to have set aside the writ of summons and not to set aside the service of the writ as done in this suit.
c. The learned trial Judge erred in law when he treated the plaintiff’s failure to obtain leave before the issuance of the writ as a mere irregularity.
- The learned trial Judge erred in law when he refused to strike out the name of the defendant but rather amended suo motu the name of the defendant by substituting C.G.C. Nig. Ltd. for the defendant and ordered that fresh service be effected in the name of C.G.C. Nig. Ltd.
PARTICULARS OF ERROR
a. The learned trial Judge deliberately did not take into consideration exhibits A and B attached to the defendant’s motion on notice which depict with certainty that the defendant is not incorporated.
b. The learned trial Judge erred in law when he held that the parties transacted in both names i.e. CGC Nig. Ltd. and CHINA GEO-ENGINEERING CORPORATION NIG. Ltd. even when the plaintiff did not prove by credible documentary evidence that the defendant is a juristic person.”
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