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.”
Pursuant to the Rules of this Court, the parties duly filed and exchanged their respective briefs of argument. In the appellant’s brief dated 22/11/05, filed on 23/11/05 three issues were formulated from the grounds of appeal for the determination of the appeal as follows:
- “Whether the High Court of Katsina State has jurisdiction to entertain Suit No. KTH/13/05 taking into consideration that the prior leave of the High Court was not sought and obtained before the writ of summons was issued on the 23/5/05; the writ being a writ for service outside the jurisdiction of Katsina State High Court?
- Whether the learned trial Judge was right when he refused to set aside the writ of summons but merely set aside the service of the writ.
- Whether the learned trial Judge was right when he refused to strike out the name of the defendant/appellant, but rather suo motu amended the name of the defendant and ordered t hat a fresh service be effected in the name of CGC Nig. Ltd.”
The respondent also formulated three issues for the determination of this appeal in his brief of argument dated 6/3/06, deemed filed on 10/5/06 as follows:
- “Whether the discretion of the court can be defeated by technicalities?
- Whether the non-compliance with Order 5 Rule 6 of the Katsina State High Court Civil Procedure will cause any inconvenience to the appellant and overreach the respondent if the trial is conducted at the High Court of K atsina State?
- Whether the appellant who used the names of CHINA GEO-ENGINEERING CORPORATION NIGERIA LIMITED and C.G.C. NIGERIA LIMITED interchangeably can estop the respondent from suing it in any of those names?”
At the hearing of the appeal, Mr. K.C. Ochu learned counsel for the appellant adopted the appellant’s brief and urged us to allow the appeal. Mr. I. Adamu, learned counsel for the respondent also adopted the respondent’s brief and urged us to dismiss the appeal.
On the first issue, learned counsel for the appellant referred to pages 34-46 of the record of proceedings and submitted that prior leave of the court was not sought and obtained before the writ of summons was issued on 23/5/05 and served on the appellant. He submitted that this is contrary to the provisions of Order 5 Rule 6 of the Katsina State High Court Civil Procedure Rules. He referred top age 41 of the record where the respondent conceded that there was noncompliance with the said provision. He submitted that obtaining leave before the issuance of a writ for service outside jurisdiction is a condition precedent to the exercise of the court’s jurisdiction. He submitted that since the requisite leave was not obtained, the writ was issued without due process of law and should be set aside. He argued that in the circumstances, the lower court lacks jurisdiction to entertain the suit. He relied on the case of: Nwabueze Vs Obi Okoye (1988) 10 SCNJ 60 at 77-78; (1988) 10-11 S.C. 77.
On the second issue, learned counsel for the appellant submitted that the learned trial Judge, having made a finding that Order 5 Rule 6 was not complied with, ought to have set aside the writ and not the service of the writ. He submitted that by setting aside the service of the writ the learned trial Judge treated the non-compliance as a mere irregularity.
On the third issue, he submitted that the issue before the court was whether the defendant, as sued, is a juristic personality or not. He submitted that rather than address this issue and make a finding on it, His Lordship suo motu changed the name of the defendant from China Geo-Engineering Corporation Nig. Ltd. to C.G.C. Nig. Ltd. He contended that the learned trial Judge failed to consider Exhibits A and B annexed to the affidavit in support of the defendant’s motion dated 30/8/05, which showed that the defendant was not incorporated. He submitted that the plaintiff, who bore the onus of proof, did not exhibit any evidence such a s a certified true copy of its certificate of incorporation, to show that the defendant is a juristic personality. He submitted that the issue should therefore be resolved against him. He relied on: African Continental Bank & Anor. Vs Emostrade Ltd. (2002) 10 NSCQR 22 at 30 G-H and at 31 A-B. He submitted that merely adding the word “Ltd.” to the defendant’s name is not sufficient to denote that the defendant is a legal person. He relied on the case of: Magbagbeola Vs Sanni (2005) ALL FWLR 1367 at 1374-1375 F-A. He submitted that without the proper parties before the court the suit could not be said to have been properly constituted. He referred to: Tijjani Bambe & 6 Ors. Vs Registered Trustees of the Ijaiye National Society of Lagos 11977) 1 S.C. 1 at 8. He urged the court to hold that the learned trial Judge erred in not striking out the name of the defendant.
On the first issue, learned counsel for the respondent submitted that the discretion whether or not to grant leave to issue a writ for service outside jurisdiction is exercised by a Judge who must consider, based on the appropriateness of the forum and the interest of the parties, whether or not a case is a proper one for service outside jurisdiction. He relied on: Broad Bank Nig. Ltd. Vs Alhaji S. alayiwola & Sons Ltd. & Anor. (2005) 3 NWLR (12) 434 at 454 C-A. He submitted that even though Order 5 Rule 6 of the Rules had not been complied with, once the court was satisfied that all the conditions had been met to warrant the suit being tried before the Katsina State High Court, it had the discretion to grant the ex-parte application. He submitted that rules of court are to enable the Court meet the ends of justice.
He submitted further that in the circumstances of this case, the High Court of Katsina is the proper venue for the hearing of the suit and that failure to seek leave to issue the writ outside jurisdiction is not a ground for declaring the writ a nullity. He argued that such a position amounts to reliance on technicality, which the courts discourage. He relied on several authorities including: Okenwa Vs Military Governor of Imo State (1996) 6 SCNJ 221 at 239 and Broad Bank of Nig. Ltd. Vs S. Olayiwola & Sons Ltd. & Anor. (supra) at 458 B-C.
On the second issue, learned counsel submitted that the appellant failed to state what inconvenience it would suffer if the trial takes place before the High Court of Katsina State. He referred to Broad Bank of Nig. Ltd. Vs S. Olayiwola & Sons Ltd. & Anor. (supra) at 456 C-D. Relying on the case of: Steel Bell (Nig.) Ltd. Vs Government of Cross-River State (1996) 3 NWLR (438) 571, he submitted that non-compliance with the rules is generally curable if it is not intended to overreach and that the court should avoid a rigid application of the rules.
On the third issue, learned counsel referred to the exhibits annexed to the plaintiff/applicant’s counter affidavit to the motion on notice dated 30/8/05 at pages 26-30 of the record.
He observed that at pages 26 and 27, Exhibit A, the agreement between the parties, is written on the letter headed paper of the appellant wherein it described itself as China Geo-Engineering Corporation Nig. Ltd. He noted that on the first and last pages of the same document the appellant referred to itself and signed the agreement as C.G.C. Nig. Ltd, employer. He noted further that in Exhibits Band C the appellant’s letterhead bears the name C.G.C. Nigeria Ltd. He submitted that by entering into contractual relations with the respondent, knowing that it is not a juristic person, the appellant is estopped from denying the name China Geo-Engineering Corporation Nig. Ltd. He argued that based on the contractual agreement prepared and executed in the name of China Geo-Engineering Corporation Nig. Ltd. the appellant was entitled to sue in either of the names.
In conclusion he contended that it was the view of the Supreme Court in the case of Broad Bank of Nig. Ltd. Vs S. Olayiwola & Sons Ltd. & Anor. (supra) that the approach in Nwabueze Vs Obi Okoye (supraLwas based on technicality and no longer represents the position of the law today. He submitted that the courts now concentrate on substance rather than form.
Before going into the merits of the appeal, it is necessary to consider whether there is in fact a competent appeal before this court. A court is competent to adjudicate upon a matter when the preconditions for the exercise of its jurisdiction are met. A court is competent when:
a. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other;
b. The subject matter of the case is within its jurisdiction and there is no feature in t he case which prevents the court from exercising its jurisdiction; and
c. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication
See: Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587 at 594; Skenconsult (Nig.) Ltd. Vs Ukey (1981) 1 S.C. 6 at 62.
Sections 241 (1) (a) and (b) and 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 provide as follows:
“242 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the g round of appeal involves questions of law alone, decisions in any civil and criminal proceedings;
242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.”
The jurisdiction of the Court of Appeal to entertain appeals from the Federal High Court or the High Court of a State is conferred by the Constitution. Where the Constitution provides for the procedure to be followed before taking a particular step, failure to comply therewith renders the step so taken incompetent and robs the Court of jurisdiction to entertain the matter. The present appeal is from the decision of the trial High Court setting aside the service the writ of summons outside jurisdiction without leave and substituting the name C.G.C. Ltd. for the defendant on record. The appellant’s complaint is that the entire writ of summons ought to have been declared null and void and struck out and that the name of the defendant should have been struck out rather than amended as done by the learned trial Judge.
In order to determine whether the decision is interlocutory or final, the test generally applied in our courts is whether the order finally disposes of the rights of the parties in the proceedings in issue appealed against. See: Iwueke Vs I.B.C. (2005) 17 NWLR (955) 447 at 468 C-D; Omonuwa Vs Oshodin (1985) 2 NWLR (10) 924 at 937; Ebokam Vs Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (622) 242 at 251. Where the decision completely disposes of all the rights of the parties to the action, it is final. Where the decision only disposes of an issue or issue in the case, leaving the parties to go back to claim other rights in court, the decision is interlocutory. See: Western Steel Works Ltd. Vs Iron & Steel Workers Union (1986) 3 NWLR (30) 617. In the instant case, upon setting aside the service of the writ, the court ordered fresh service on the defendant in the name of C.G.C. Nig. Ltd. The substantive suit is still pending before the trial court. Indeed on 29/11/06 the appellant herein sought and obtained an order staying the proceedings before the trial court pending the determination of this appeal. It is therefore not in doubt that the decision appealed against did not finally dispose of the rights of the parties to the suit and is therefore interlocutory.
Being an interlocutory decision, it is necessary to consider whether having regard to Sections 241 and 242 of the Constitution the appellant requires leave to appeal and if so, whether such leave was obtained. By the combined effect of Section 241 (1) (b) and Section 242 of the Constitution, a party seeking to appeal against an interlocutory decision must obtain leave from the trial court or from the Court of Appeal except where the grounds of appeal involve questions of law alone. The court must therefore carefully examine the grounds of appeal to determine whether they involve questions of law alone or mixed law and facts. See: Excel Plastic Ind. Ltd. Vs FBN Plc. (2005) 11 NWLR (935) 59 at 93 B-D. The distinction between a ground of law and a ground of fact or of mixed law and fact is not an easy one. However the approach adopted by the courts is to examine the grounds of appeal to determine whether the grounds reveal a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved, or admitted in which case it would be a question of law, or one that would require the evaluation of facts by the lower court before the application of the law in which case it would be a question of mixed law and fact. See: Iwueke Vs I.B.C. (supra) at 472 B-D; Ogbechie Vs Onochie (1986) 2 NWLR (23)Â Â 484 and Orakushin Vs Menkiti (2001) 9 NWLR (719) 529 at 538.
In ground one of the notice of appeal reproduced earlier in this judgment, the appellant’s complaint is that the learned trial Judge made a finding that leave to issue the writ outside jurisdiction was not obtained and yet treated the noncompliance as a mere irregularity by setting aside the service of the writ rather than striking out the writ itself. The fact that leave was not obtained before the issuance of the writ was never in dispute. Learned counsel for the respondent conceded the point. The ground of appeal complains of the misapplication of the law to an established fact. It is therefore a ground of law, which falls within the ambit of Section 241 (1) (b) of the Constitution. However ground two alleges that the learned trial Judge failed to properly consider exhibits annexed to the supporting affidavit and certain facts deposed to therein regarding whether or not the defendant is a juristic person and thereby came to a wrong decision by not striking out the name of the defendant. This ground of appeal in my respectful view is one of mixed law and fact, for which leave ought to have been obtained.
I have carefully examined the record of proceedings of the trial court and of this court and find that the appellant failed to seek leave to appeal on ground of mixed law and fact. To that extent ground 2 of the notice of appeal is incompetent. It is hereby struck out. Issue no 3 formulated from ground 2 is also incompetent and accordingly struck out.
The court is now left with two issues formulated from one ground of appeal. The issues raised in an appeal must relate to the grounds of appeal and the decision appealed against. A single issue may be formulated from one or more of the grounds of appeal. However it is wrong and undesirable for an appellant to formulate more issues than the grounds of appeal. See: Leedo Presidential Hotel Ltd. Vs B.O.N. Ltd. (1993) 1 NWLR (269) 334 at 347 A-C; Iweka Vs S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (664) 325 at 338 F-H; A.G. Bendel State Vs Aideyan (1989) 4 NWLR (118) 646. The courts have always frowned at proliferation of issues, which only serve to obfuscate the issues in controversy in the appeal. What is the proper course of action in the circumstances? The Enugu division of this Court in the case of: U.B.A. Vs Mode (Nig.) Ltd. (2001) 13 NWLR (730) 335 at 359 B held the view that where the issues overlap, in appropriate circumstances they could be merged together and treated as one. Where it is not possible to merge the issues, the superfluous ones would be discountenanced by the court. This appears to me to be a judicious approach to the matter in order not to shut out the appellant on the basis of inelegant drafting by his counsel. The respondent fell into the same error as the appellant by formulating three issues from the two grounds of appeal. In the instant case, I am of the view that issue no. 1 formulated by the appellant can adequately dispose of the issue in controversy in this appeal. The appeal shall therefore be determined on issue no. 1 formulated by the appellant. Issue no. 2 is accordingly struck out for being superfluous. With regard to the sale issue for determination, I had stated earlier that it is not in dispute that the respondent did not seek or obtain leave to issue the writ of summons outside the jurisdiction of the court before it was served on the appellant. The appellant’s address for service as stated on the specially indorsed writ issued on 23/5/05 is C.G.C. Nigeria Limited, Sabke Dam Project, Daura, Katsina State, within the jurisdiction of the Katsina State High Court. In paragraph 3 (b) and (c) of the plaintiff’s affidavit in support of the motion ex-parte at page 11 of the record it was averred that the bailiff of the court went to effect service of the writ of summons on the defendant at Sabke Dam, Katsina State and discovered that it had moved its Head Office to Kaduna State. It was for this reason that an application was made to the court for leave to serve the writ outside jurisdiction. It is instructive to note that there was no prayer for leave to issue the writ outside jurisdiction.
The issue for determination is whether failure to obtain leave to issue the writ outside jurisdiction robbed the court of jurisdiction to entertain the suit.
Order 5 Rule 6 of the Katsina State High Court (Civil Procedure) Rules 1991 provides:
“Subject to the provisions of these rules or of any written law in force in the State, no writ or summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of Court or a Judge in Chambers.”
Section 97 of the Sheriffs and Civil Process Act Cap. 407 L.F.N. 1990 provides:
“Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such state or the Capital Territory, have endorsed thereon a notice to the following effect:
‘This summons (or as the case may be) is to be served out of the… State (or a s the case may be) and in the … State (or as the case may be)’ ”
The use of the word “shall” in Order 5 Rule 6 makes it mandatory for leave to be obtained before a writ meant for service out of the jurisdiction can be issued. The statutory authority for the service of a writ of summons outside the territorial jurisdiction of the State High Court that issued it but within Nigeria is the Sheriffs and Civil Process Act. The endorsement that the writ is meant for service outside the State where it was issued is a mandatory requirement and forms an intrinsic part of the writ. See: Nwabueze Vs Okoye (1988) 10 – 11 S.C. 77 at 95; NEPA Vs Onah (1997) 1 NWLR (484) 737; N.P.A. Vs Eyamba (2005) 12 NWLR (939) 409 at 447-448 H-A and Broad Bank Nig. Ltd. Vs S. Olayiwola & Sons Ltd. (2005) 3 NWLR (912) 434 at 456 F.
In Nwabueze Vs Okoye (supra) the Supreme Court held that the issuance and service of a writ of summons on a defendant are conditions precedent to the exercise of the court’s jurisdiction over the defendant in respect of the subject matter of the suit. The court also held that leave to issue a writ, which is to be served out of the jurisdiction is not granted as a matter of course and requires careful and judicious exercise of discretion by the court, taking into consideration such issues as forum convenience and comparative cost among other factors.
In that case, the Supreme Court held that since leave was not obtained before the writ was issued, it had been issued without due process of law. It was declared null and void and accordingly set aside.
Learned counsel for the respondent has strenuously argued, relying on the recent Supreme Court decision in Broad Bank Nig. Ltd. Vs S. Olayiwola & Sons Ltd. (supra), that the courts have moved away from a technical approach to justice in favour of doing substantial justice. He referred to the respondent’s ex-parte application dated 6/7/05 for leave to serve the defendant outside jurisdiction and submitted that even though Order 5 Rule 6 was not complied with, once all the conditions for the commencement of the suit before the Katsina State High Court had been met, it was within the discretionary powers of the court to grant the motion as it did on 3/8/05.
There is no doubt that the rules of court have a vital role to play in the smooth administration of justice and should be obeyed. The rules of court are made to guide both the court and litigants on matters of procedure in order to obtain a just result. It is also correct that the rules are not made and must not be used to circumscribe the constitutional duty of the court to do substantial justice.
I have carefully studied the authority of Broad Bank Nig. Ltd. Vs Olayiwola & Sons Ltd. (supra),. In that case, the Supreme Court, rightly in my humble view, eschewed reliance on technicalities in favour of doing substantial justice. The facts of that case are however distinguishable from the present case in several respects. In that case the appellant instituted an action by writ of summons before the High Court of Lagos State against the respondents who were outside the State. On the same day the appellant filed an ex parte application for leave to issue the writ and serve same outside Lagos State. The application was granted and the respondents were served.
They filed a notice of preliminary objection to set aside the issuance and service of the writ of summons and statement of claim and to strike out the suit. The trial court held that the grant of leave to issue a writ for service outside jurisdiction could be obtained before or after the filing of the writ but before service and that since the respondents had been given 30 days to enter appearance, the number of days specified in the writ for entry of appearance did not matter. The court however held that since the writ of summons was not endorsed for service out of the jurisdiction of Lagos State it was incompetent. The appellant appealed to the Court of Appeal, inter alia on the issue of non endorsement of the writ. The respondents cross appealed on the propriety of the grant of leave subsequent to the issuance of the writ of summons and on the number of days endorsed on the writ for appearance thereto. The Court of Appeal held that obtaining leave to issue the writ of summons out of jurisdiction after it had been filed but before service is bad in law; that the writ was defective for not containing the proper endorsement of requisite notice as to its service out of jurisdiction and of time to appear thereto. It dismissed the appeal and allowed the cross appeal.
On appeal to the Supreme Court, the court took the view that although leave to issue the writ of summons outside jurisdiction was obtained subsequent to the filing of the writ, in the exercise of its discretion to grant t he order, the trial court had taken all the relevant facts into consideration such as whether the person to be tried could be conveniently tried elsewhere, the interest of all the parties and the interest of justice. The court held that the respondents had not shown what inconvenience they would suffer if the trial were held in the High Court of Lagos State. On the non-endorsement of the writ of summons as required by Section 97 of the Sheriffs and Civil Process Act, the court held that a party could not be punished for the negligence or tardiness of the registrar whose duty it is to make the endorsement. It went further to hold that the requirement of Section 99 of the Sheriffs and Civil Process Act for the endorsement of the time limited for appearance to a writ of summons served outside jurisdiction is directory and that failure to comply therewith is not fatal and would not invalidate the writ. It unanimously allowed the appeal. This decision is a clear example of how the courts adopt a liberal approach to the interpretation of the rules of procedure to meet the ends of justice.
Having said this however, there is nowhere in the Broad Bank case where the Supreme Court held that compliance with the requirement to obtain leave to issue a writ of summons outside jurisdiction could be dispensed with or that noncompliance was a mere irregularity. It recognised the mandatory nature of Order 3 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 1994, which is in pari materia with Order 5 Rule 6 of the of Katsina State High Court (Civil Procedure) Rules. The distinction between that case and the present case is that in the instant case the respondent did not apply for leave to issue the writ for service out of jurisdiction. In fact, on the face of the record the civil summons dated 11/8/05 issued after the order for service was made on 3/8/05 was attached to the specially indorsed writ issued on 23/5/05, which was issued for service within jurisdiction.
It is important to note that the issuance of a writ of summons and the service thereof are separate and distinct steps in a proceeding. See: N.P.A. Vs Eyamba (supra),. A writ of summons is issued when it is signed by the Registrar or other officer of court duly authorised to sign a writ of summons. See: Idris Vs Archibong (2001) 9 NWLR (718) 447 at 457.
The writ of summons in this case was issued on 23/5/05 without leave contrary to the clear and unambiguous provisions of Order 5 Rule 6 of the Katsina State High Court (Civil Procedure) Rules. The requirement of Order 5 Rule 6 is a condition precedent to the validity of the writ of summons. Noncompliance therewith robs the court of jurisdiction to entertain it.
The writ of summons having been issued without leave is therefore invalid, null and void. See: Nwabueze Vs Okoye (supra); NEPA Vs Onah (supra); Idris Vs Archibong (supra) and N.P.A. Vs Eyamba (supra):
In conclusion the sole issue for determination in this appeal is hereby resolved in favour of the appellant. The appeal therefore succeeds and is accordingly allowed. The decision of the High Court of Katsina State in Suit No. KTH/13/05 delivered on 18/10/05 by Saddik A. Mahuta, J. is hereby set aside. The writ of summons served on the defendant is hereby set aside.
The plaintiff’s suit against the defendant is accordingly struck out. Costs of N5, 000.00 are awarded in favour of the appellant against the respondent.
Other Citations: (2007)LCN/2368(CA)
