EFFECT OF FAILURE OF A LEGAL PRACTITIONER TO SIGN A WRIT OF SUMMONS

CASE TITLE: FAOBO & ANOR v. NDUKWE & ANOR (2019) LPELR-48560(CA)

JUDGMENT DATE: 30TH SEPTEMBER, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGE: IBRAHIM SHATA BDLIYA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Civil Procedure.

FACTS

This is an appeal against the judgment of the Kwara State High Court of justice in suit No: Kws/73/2017, delivered on the 21st of June, 2017, by S.T Daibu, J.

The aforesaid suit was commenced before the High Court by a Writ of Summons filed on the 3rd day of March 2017, under the undefended list of procedure pursuant to Order 23 of the High Court (Civil Procedure) Rules, 2005, Kwara State.

By an order exparte, the respondents (as claimants) sought and obtained an order placing the said suit on the undefended list and marked accordingly. The marked Writ of Summons was served on the appellants (as defendants), and a return date was entered and served on them. On the return date, the appellants did not file Notice of Intention to Defend the claim against them.

The learned judge of the High Court, after hearing the parties, entered judgment in favour of the respondents per the Writ of Summons and the statement of claim

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

1) Whether the writ of summons originating suit No: Kws/73/2017, was rightly signed by a legal practitioner as required by law which the learned judge of the lower Court had the jurisdiction to adjudicate leading to the judgment delivered on the 21st of June, 2017.

2) Whether the respondents are certified money lenders under the provisions of the Money Lenders Law, Kwara State 2006, if not, can the respondents sue the appellants seeking the repayment of the alleged loan granted to the appellants?

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the High Court was therefore set aside.

RATIOS:

• APPEAL- GROUND(S) OF APPEAL: Whether ground(s) of appeal as well as issue(s) formulated therefrom must arise from the decision appealed against and effect of failure thereof
• PRACTICE AND PROCEDURE- SIGNING OF COURT PROCESS(ES): Effect of failure of a legal practitioner to sign a writ of summons
• PRACTICE AND PROCEDURE- SIGNING OF COURT PROCESS(ES): Effect of failure of a legal practitioner to sign a writ of summons