CORAM

PARTIES

HUSSAINI ISA ZAKIRAI APPELLANTS

RESPONDENTS

AREA(S) OF LAW

Not Available

SUMMARY OF FACTS

The 1st Respondent as Plaintiff filed an action by way of originating summons against the Appellant and other Respondents at the Federal High Court Kano State, over a primary election for the selection of a candidate to represent the party as its candidate for Gabasawa Constituency of Kano state House of Assembly. The 1st Respondent was declared winner having scored the highest number of votes cast. The 1st Respondent sought the determination of whether the 3rd Defendant can publicize, recognize and include the name of the 2nd Defendant or deal with him as the candidate of 1st Defendant (APC) to contest election into Kano State House of Assembly representing Gabasawa Constituency of Kano State scheduled to take place on 28/2/2015, the Plaintiff having scored the majority of the lawful votes cast at the primary election held by the 1st Defendant on 2/12/2014 in Gabasawa Local Government Area of Kano State for the purpose of presenting a candidate of the Party for election into Kano State House of Assembly to represent Gabasawa Constituency of Kano State amongst other reliefs. The Originating Summons was filed and the address for service on the 2nd and 3rd Respondents who were situate at the Federal Capital Territory, Abuja, was endorsed on same. A motion exparte was filed on the same day for leave to serve by substituted means on the 2nd Respondent, Appellant and 3rd and 4th Respondent. Upon being served, the 2nd and 4th Respondents entered unconditional appearances while the Appellant and 3rd Respondent entered conditional appearance. Subsequently, the Appellant file a Notice of preliminary objection challenging the competence of the suit on grounds that the originating summons was neither endorsed nor marked as required by the Sheriffs and Civil process Act and the Enforcement of Judgement and service of the Process Rules hence, the court lacked jurisdiction to entertain the suit. The trial court dismissed the preliminary objection and granted all the reliefs sought by the 1st Respondent. Dissatisfied, the Appellant filed an appeal before the Court of Appeal while the 1st Respondent cross appealed contending that the Appellant had inherent right to object to the validity of the Writ issued against him. The lower court dismissed the main appeal as lacking in merit and allowed the cross appeal.  Aggrieved, the Appellant has filed the instant appeal before this court.

HELD

Appeal Dismissed

ISSUES

?    Whether the lower Court was right to have held that leave to issue the Originating Summons, leave to serve the Originating Summons and leave to mark same for service outside jurisdiction are not necessary, not mandatory, has been waived by the 2nd and 3rd Respondents and cannot be raised by the Appellants at all?    Whether the lower Court rightly held that issue of substituted service and personal service was not raised both at the trial Court and before the lower Court, and indeed the issue of mode of service is phantom, esoteric and not real??    Whether the lower Court rightly ignored the failure to mark the summons as “concurrent” and trial Court’s non-consideration of the “Further and Better Counter Affidavit in this Suit?    Whether in the circumstances of this case the leave of the trial Court to issue and mark the Originating Summons, which was served within jurisdiction of the 2nd and 3rd Respondents, was necessary and whether the Appellant can raise same.?    Whether the Lower Court was right when it held that the Appellant did not raise the issue of the validity of the order of substituted service before the trial Court?    Whether in the circumstances of this case there was failure from the part of the 1st Respondent to have marked the Originating Summons as concurrent?    Whether the lower Court was right when it held that the Originating Summons was competent and upheld the decision of the trial Court which dismissed the Appellant’s Preliminary Objection

RATIONES DECIDENDI

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of  Nigeria, 1999 (as amended).Federal High Court (Civil Procedure) Rules 2000Federal High Court (Civil Procedure) Rules 2009Federal High Court (Civil Procedure) Rules of 1976Sheriff and Civil Process Act

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