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(2018) LPELR-44051(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of April, 2018


Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria


2. MR. OLAYIWOLA ADEOYE - Appellant(s)


2. ALHAJI AKEEM BUSARI - Respondent(s)

Other Citations

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This appeal borders on Civil Procedure.
This is an interlocutory Appeal by the Appellants (who were the 1st and 2nd Defendants before the High Court) against the decision/ruling of the Kwara State High Court of Justice in Suit No: KWS/137/2016 delivered by Honourable Justice I.A. Yusuf on the 10th day of November 2016.

By a Writ of Summons and Statement of Claim filed on 17th May 2016, the 1st Respondent as Claimant took out this action against the Appellants as 1st and 2nd Defendants and one ALHAJI Akeem Busari as 3rd Defendant. The 1st Respondent's claims against the Appellants and the 3rd Defendant were as follows: 
???i. AN ORDER OF SPECIFIC PERFORMANCE directing the 1st defendant to execute the deed of transfer on his landed property situate and lying at No. 43 Igbaja Road, Gaa Akanbi, Ilorin Kwara State measuring 113ft X 67ft consisting of 4 flats of 3 bedroom each story building and a 2 bedroom bungalow (The property) in favour of the claimant, collect the balance of ???1,000,000 (One Million Naira Only) from the claimant and deliver up unencumbered title and possession of the property to the claimant. 
ii. AN ORDER OF PERPETUAL INJUCTION restraining the 3rd defendant from taking possession of the property or parading himself as the rightful buyer/owner of the said property.
iii. Cost of this suit
ALTERNATIVELY, the Claimant claims as follows:
i. An order of this Honourable Court directing the 1st and 2nd to refund the sum of ???5,000,000 (Five Million Naira Only) to the claimant being money had and received on a breached contract with 10% monthly interest from the date the money was paid to the 1st and 2nd defendant by the claimant to the date of judgement and until the date the judgement sum is finally liquidated.
ii. An order awarding the sum of ???3,000,000 (Three Million Naira Only) damages in favour of the Claimant against the 1st and 2nd defendants jointly and severally for breach of contract and deceit.
iii. Cost of this suit.

The Appellants filed a conditional memorandum of Appearance on 28th June, 2016 and later on 8th August, 2016 filed the 1st and 2nd Defendants Joint Statement of Defence and counter Claim.  On 11th August, 2016, the Appellants filed a Notice of Preliminary Objection 
"That the Claimant's suit as presently constituted before the Court is incompetent and as such, same should be struck out and/or dismissed in its entirety."
Affidavit and Counter - Affidavit and written Addresses were exchanged by the parties on 10 November, 2016, the learned trial Judge dismissed the objection of the Appellants. Dissatisfied with this ruling, the Appellants appealed to the Court of Appeal.

The Court determined the appeal on the Appellants' first issue couched as follows:

"Whether the lower Court has the competence and jurisdiction to entertain and determine the case when the 1st respondent failed/neglected to comply with the provision of Sections 97 and 98 of Sheriffs and Civil Process Act , CAP 56, LFN, 2004: Order 2 Rules 9 and Order 6 Rules 10 and Order 7 Rules 5 of the Kwara State High Court (Civil Procedure) Rules, 2005 by failing to properly  issue the writ and other processes and mark same for service outside jurisdiction and indicating service on the 1st Appellant herein without the order of Court for substituted service through the 2nd Appellant."

On the whole, the Court found merit in the appeal and accordingly allowed same. The 1st Respondent's Writ filed on 17th May, 2016 was declared invalid. Suit No KWS/137/2016  was therefore struck out.

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