ALHAJI R.B. BAKARE VS THE ATTORNEY-GENERAL OF THE FEDERATION
July 15, 2025CHIEF S.O. OGUNMOLA & ORS VS HODA EIYEKOLE & ORS
July 15, 2025Legalpedia Citation: (1990-07) Legalpedia 65754 (SC)
In the Supreme Court of Nigeria
Holden at Lagos
Mon Jul 16, 1990
Suit Number: SC 111/1988
CORAM
A.G. KARIBI-WHYTE, JUSTICE SUPREME COURT
S.M.A. BELGORE, JUSTICE SUPREME COURT
A.G.O. AGBAJE, JUSTICE SUPREME COURT
A. WALI, JUSTICE SUPREME COURT
PARTIES
1. OBIANWUNA OGBUANYINYA
2. NWANKWO M.UOKWUE
3. UDEDIBIA CHIEZIE
4. ANDREW OBIECHINA
5. MICHAEL ELOBISI
6. CHIJI ADIBE (for themselves and on behalf of the people of Umueri, Ogbunike)
APPELLANTS
1. OBI OKUDO
2. RAPHAEL ANYAEGBUNAM
3. JEREMIAH OKEAKPU (For themselves and on behalf of the people of Aboh Ogidi)
RESPONDENTS
AREA(S) OF LAW
ACTION – DEFECT IN THE ISSUANCE OF WRIT OF SUMMONS – ONUS ON PARTY WHO ALLEGES IMPROPER ISSUANCE TO PROVE.
SUMMARY OF FACTS
The appeal is against the ruling of the court which held that the plaintiff/respondent commenced the action against the defendant/appellant with a valid writ of summons at the high court. It should be noted that this matter had been subject of appeal to the Supreme Court on the grounds that the judgment of the trial court delivered by the Nnaemeka-Agu J, as he then was, had been functus officio having been elevated to the federal court of appeal when the judgment of the trial court was delivered.
The suit was then remitted to the trial court to start de novo. It was at the start of the second trial that the defendant raised the issue that the writ was not properly issued. They unsuccessfully appealed to the court of appeal and now to the Supreme Court.
HELD
APPEAL DISMISSED
ISSUES
(a) Was the Court of Appeal right in holding that Sections 148(c) and 149(1) of the Evidence Act raised the presumption that a writ of summons signed by a Judge was issued to commence suit No. O/71/58?
(b)(i) On which of the parties was the onus to prove that a writ of summons signed by a Judge was issued to commence suit No. O/71/58 and was that onus discharged?
(ii) Was there any onus on the defendants/ appellants to prove that no writ of summons signed by a Judge was issued to commence suit No. O/71/58?
(c)(i) Was the Court of Appeal right in holding that it was a writ of summons that was given the number O/71/58 and that there was an affidavit of the 1st defendant showing that he was served with the alleged writ of summons?
(ii) Was the Court of Appeal right to rely or act on evidence, which was rejected or disregarded by the trial court when there was no cross-appeal or respondent’s notice against the judgment of the trial court?
(d) Does the payment of the requisite court fees raise the presumption that after the payment a Writ of summons duly signed was duly issued and served?
RATIONES DECIDENDI
APPROPRIATE AUTHORITY TO ISSUE A WRIT OF SUMMONS
“It is however to be pointed out that the duty to issue a writ of summons is not that of the plaintiff. The plaintiff, having applied for a writ of summons on payment of appropriate fees leaves the rest to the court”.
CASES CITED
1. Madukolu & Ors. v. Nkemdilim (1962)1 All N.L.R. 587.
2. Ajao v. Sonola & Anor. (1973) 5 S.C. 119, 120, 121.
3. National Employees Mutual General Insurance Association Ltd. v. Ladun Martins (1969) N.M.L.R. 236
4. Benson v. Onitiri (1960) 5 F.S.C. 69; [1960] SCNLR 275
5. Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1986)6 S.C. 35 (1986)3 N.W.L.R. (Pt.30) 617 .
6. See Mufutau Atawode & Ors. v. M.A. Semoh (1959)4 F.S.C.27; (1959) SCNLR 91.
7. Management Enterprises Ltd. and Anor. v. Jonathan Otusanya (1987)2 N.W.L.R. (Pt.55) 179.
8. Aduke v. Oyenubi (1968) N.M.L.R.477.
STATUTES REFERRED TO
NONE
