May 15, 2025
Legalpedia Citation: (2013) Legalpedia (CA) 13261 In the Court of Appeal HOLDEN AT ILORIN Mon Apr 22, 2013 Suit Number: CA/I/256/2010 CORAM PARTIES INTERNATIONAL TOBACCO COMPANY LIMITED […]
CORAM
PARTIES
INTERNATIONAL TOBACCO COMPANY LIMITED
1. THE ATTORNEY-GENERAL OF OGUN STATE
2. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED
3. BRITISH AMERICAN TOBACCO PLC.
4. BRITISH AMERICAN TOBACCO (INVESTIMENT) LIMITED
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Respondent commenced this action before the Ogun State High Court, by a motion ex-parte brought under Order 5 Rule 14 and Order 12 of the Ogun State High Court (Civil Procedure) Rules 1987, and the leave to serve the Appellant with a “Concurrent Writ of Summons” and “Statement of Claim” at its registered office in England outside the jurisdiction of the High Court of Ogun State. The Appellant sought the following reliefs: An Order setting aside the issuance and consequent service upon the 2nd Defendant (Appellant), of the “Concurrent Writ of Summons” purportedly issued out of the registry of the lower court on the 26th of February, 2008 and dated 16th May, 2008; a consequential Order striking out of the suit by reason of the fact that it was not initiated by due process of law. On being so served the Appellant filed a notice of preliminary objection pursuant to Order 1 Rule 1(1), Order 3 Rule 1-4, Order 6 Rule 1-9 of the Ogun State High Court Civil Procedure Rules 2008, on grounds that the an originating writ of summons was not applied for; neither was one issued out of the registry of the lower court (Ogun State High Court) as required by Order 5 Rule 1 of the High Court of Ogun State Civil Procedure Rules 2008, that the 1st Respondent only applied to the lower court for leave to issue a concurrent writ of summons out of the registry of the lower court, which concurrent writ was neither signed nor dated. After trial, the court delivered its ruling in favour of the 1st Respondent against the Appellant. Being dissatisfied with the ruling, the Appellant has appealed to this court.
HELD
Appeal Dismissed
ISSUES
Was the trial court right to have held that the 1st Respondent satisfied the requirement for issuance of the writ of summons issue on the 15th May, 2008 having regard to the provision of Order 5 Rules 1, 8(1) & 14 of the applicable rules of court on the issuance of forms 1, 2, 3, and 4 with necessary variation as the circumstances may require?
RATIONES DECIDENDI
ORIGINATING PROCESS- WHETHER THE NON-SIGNING OF AN ORIGINATING PROCESS IS FATAL
“In line with the decision in Saude v. Abdullahi (1989) 4 NWLR (Pt.116) p.387 @ 468, the non-signing of the originating summons is only an irregularity that can be cured by the court.”
ORIGINATING PROCESS – WHETHER A LITIGANT CAN BE FAULTED FOR FAILURE TO MONITOR THE SIGNING OF THE WRIT HE FILED AT THE REGISTRY
“In my humble opinion, the learned trial Judge can hardly be faulted in holding that the litigant has no obligation to monitor the signing of the writ he filed in the Registry of the court, such not being a duty assigned to the litigant by Order 5 Rules 1 & 8 of the Ogun State High Court (Civil Procedure) Rules 1987.For the ease of clarity and an appreciation of duty lines, the relevant provisions of the High Court Rules are hereby reproduced. The Rules under which this application was considered provides as follows: –
Order 5 Rule 1
the writ of summons shall contain the place and abode of the plaintiff and of the defendant so far as they can be ascertained. It shall also state briefly and clearly the subject matter of the claim, the relief sought for and the date of the writ and the place of hearing, Subject to the provisions of the rules or of any written law in force in Ogun State, no writ of summons for service out of jurisdiction shall be issued without the leave of court or the Judge in chambers. The writ shall be in form 1, 2, 3 or 4 in the appendix to the rules with such variations as circumstances may require.
Order 5 rule 8(1)
every writ shall be in forms 1, 2, 3 or 4 to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.
By these provisions, the responsibility of the litigant is to initiate the process by stating his grievance clearly to the registrar and paying up all the requisite fees chargeable by the provisions of the law or the Rules of court.”
ORIGINATING PROCESS – DUTY OF COUNSEL TO APPEND HIS SIGNATURES ON ALL PROCESSES
“I must hasten to add that this is a completely distance scenario with the duty of the learned Counsel to ensure that Counsel duly appends his hallowed signature to all processes he is required by law to sign (Refer Section 2 of the Legal Practitioner’s Act, Cap 207 LFN, 1990 and the case of Nweke v. Okafor (2007) ALL FWLR (Pt.368) 1016 @ 1026 – 1027 – re-affirmed in First Bank of Nigeria Plc. v. Maiwada and Ors (2012) LPELR.”
COURT – WHETHER PARTIES SHOULD BE HELD LIABLE FOR ERRORS OR OMISSIONS COMMITTED BY THE OFFICIALS OF THE COURT
“That Law has since been settled that parties would not be held liable for errors or omissions committed by the officials of the Court.”
CASES CITED
Not Available
STATUTES REFERRED TO
Legal Practitioner’s Act, Cap 207 LFN, 1990
Ogun State (Civil Procedure) Rules 1988
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