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Before Their Lordships
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
CHIEF S.S. OBARO- Appellant
AND
ALHAJI SALE HASSAN –Respondent
…………………….A…………………….
OLUKAYODE ARIWOOLA, J.S.C (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division, herein after called, Court below, delivered on May 2nd, 2003. The appellant was the plaintiff while the respondent was the defendant before the trial court. The court below had allowed the respondent’s appeal against the decision of the trial court. The facts of the case that led to this appeal are as follows:
The appellant had commenced an action before the High Court of the Federal Capital Territory, holden at Abuja with a motion exparte by which he sought the following reliefs:
“1. Granting plaintiff/applicant leave to issue the Writ of Summons in this suit for service out of the jurisdiction of this court, to wit: for service on the defendant at 202, Gangare, Jos, Plateau State of Nigeria, and a further order that the Writ shall have endorsed thereon:
“THIS SUMMONS IS TO BE SERVED OUT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE.”
2. Entering this suit for hearing in the “Undefended List” and marking the Writ of Summons, and entering thereon a date for hearing accordingly.
3. Deeming the Writ of Summons filed with this application as having been properly and regularly filed the requisite filing fees in respect thereof having been duly and fully paid.
4. Granting leave for service of the Writ of Summons and all other processes in this suit on the defendant through his present counsel/agent, Prince Orji Nwafor – Orizu of suite 68, Cornerships, Area 7A, behind Cultural Centre, Garki, Abuja and such service to be deemed proper service on the defendant.
And for such further or other order(s) as to this Honourable Court may deem fit and just having regard to all the circumstances of this case”
In support of the application exparte was an affidavit of 22 paragraphs. Attached to the affidavit are documents marked Exhibits SS01, SS02, SS03, SS04 and SS05 respectively.
On page 12 of the record of appeal is a specially endorsed writ of summons dated 15/5/2000 and signed on the same date. Endorsed on the top of the said writ of summons is the following:
“THIS WRIT IS FOR SERVICE OUT OF THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE, NIGERIA PURSUANT TO COURT ORDER DATED 23RD DAY OF MAY, 2000.”
On 23rd May, 2000 the appellant had moved his exparte application under Order 5 rule 14, Order 23 rule 1 and Order 12 rule 5(b) of the High Court (Civil Procedure) Rules and under section 97 of Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria, 1990.
Upon hearing the application, the trial High Court granted the prayers sought in the following terms enrolled on page 16 of the record.
“The application is HEREBY GRANTED as prayed. Leave is HEREBY GRANTED to the plaintiff/applicant to issue and serve the defendant with the writ of summons and all other court processes in Plateau State an area outside the jurisdiction of this Honourable Court.
The Writ of Summons is also marked under undefended List.
Leave is granted to the plaintiff/applicant to serve the writ of summons and other court processes on the defendant through his counsel/agent “Prince Orji Nwafor – Orizu and this service shall be deemed proper service on the defendant. Case adjourned to 10th July, 2000 for hearing. Given under the hand and seal of the honourable High Court Judge dated this 23rd day of May, 2000.”
The appellant had claimed on the specially endorsed Writ of summons against the Respondent as follows:
“The Plaintiff’s claim against the defendant is for N5, 770,875.00 being professional fees together with interest thereon up to 15th May, 2000 and interest thereon thereafter.
PARTICULARS OF CLAIMS
1(i) Settlement of Bill of Professional charge dated 31/1/97 and served on the defendant on the same date for professional legal services rendered to Defendant at his request by plaintiff as counsel in Suit No. FCT/HC/CV/566/97 Alhaji Sale Hassan V. Alhaji Jibrila Jauro at the Federal Capital Territory High Court, Abuja between 1994 and 1997…… N2,805,000.00.
(ii) Interest thereon at the rate of 21% per annum effective from 1st March, 1997 up to 15th May, 2000………. N2, 865,325.00
2(i) Settlement of Bill of Professional charges dated 18th November, 1999 and served on the defendant on 20th November, 1999 for professional legal services rendered to defendant at his request as counsel in connection with Appeal No. CA/A/25/99: Alhaji Sate Hassan V. Alhaji Jibrilla Jauro, at the Court of Appeal, Abuja between 1997 and until defendant purportedly terminated Plaintiff’s retainer in November 1999 … N1, 012,000.00.
(ii) Interest thereon at the rate of 21% per annum effective from 20th December, 1999 up to 15th May, 2000 ……… N88, 550.00 N5,220,825.00
3. Interest at the rate of 21% per annum on the total outstanding claims at 15th May, 2000 until judgment is given in this suit and thereafter at the rate of 10% on the judgment debt and costs until the same is fully paid and satisfied.”
Sometime on 31st May, 2000, the defendant had filed a motion on notice seeking from court the following:
“1. Order of Court striking out the writ of summons served on the plaintiff marked “Undefended List” for being irregular and incompetent as there is no affidavit verifying the facts to be tried as “Undefended List”.
2. Order of the court dismissing or striking out the suit for non-compliance with the conditions precedent for filing of an action for recovery of professional fees by a legal practitioner under the Legal Practitioner’s Act.
3. Any such further or other orders as this Honourable court will deem fit to make in the circumstances.”
“1. Granting plaintiff/applicant leave to issue the Writ of Summons in this suit for service out of the jurisdiction of this court, to wit: for service on the defendant at 202, Gangare, Jos, Plateau State of Nigeria, and a further order that the Writ shall have endorsed thereon:
“THIS SUMMONS IS TO BE SERVED OUT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE.”
2. Entering this suit for hearing in the “Undefended List” and marking the Writ of Summons, and entering thereon a date for hearing accordingly.
3. Deeming the Writ of Summons filed with this application as having been properly and regularly filed the requisite filing fees in respect thereof having been duly and fully paid.
4. Granting leave for service of the Writ of Summons and all other processes in this suit on the defendant through his present counsel/agent, Prince Orji Nwafor – Orizu of suite 68, Cornerships, Area 7A, behind Cultural Centre, Garki, Abuja and such service to be deemed proper service on the defendant.
And for such further or other order(s) as to this Honourable Court may deem fit and just having regard to all the circumstances of this case”
In support of the application exparte was an affidavit of 22 paragraphs. Attached to the affidavit are documents marked Exhibits SS01, SS02, SS03, SS04 and SS05 respectively.
On page 12 of the record of appeal is a specially endorsed writ of summons dated 15/5/2000 and signed on the same date. Endorsed on the top of the said writ of summons is the following:
“THIS WRIT IS FOR SERVICE OUT OF THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE, NIGERIA PURSUANT TO COURT ORDER DATED 23RD DAY OF MAY, 2000.”
On 23rd May, 2000 the appellant had moved his exparte application under Order 5 rule 14, Order 23 rule 1 and Order 12 rule 5(b) of the High Court (Civil Procedure) Rules and under section 97 of Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria, 1990.
Upon hearing the application, the trial High Court granted the prayers sought in the following terms enrolled on page 16 of the record.
“The application is HEREBY GRANTED as prayed. Leave is HEREBY GRANTED to the plaintiff/applicant to issue and serve the defendant with the writ of summons and all other court processes in Plateau State an area outside the jurisdiction of this Honourable Court.
The Writ of Summons is also marked under undefended List.
Leave is granted to the plaintiff/applicant to serve the writ of summons and other court processes on the defendant through his counsel/agent “Prince Orji Nwafor – Orizu and this service shall be deemed proper service on the defendant. Case adjourned to 10th July, 2000 for hearing. Given under the hand and seal of the honourable High Court Judge dated this 23rd day of May, 2000.”
The appellant had claimed on the specially endorsed Writ of summons against the Respondent as follows:
“The Plaintiff’s claim against the defendant is for N5, 770,875.00 being professional fees together with interest thereon up to 15th May, 2000 and interest thereon thereafter.
PARTICULARS OF CLAIMS
1(i) Settlement of Bill of Professional charge dated 31/1/97 and served on the defendant on the same date for professional legal services rendered to Defendant at his request by plaintiff as counsel in Suit No. FCT/HC/CV/566/97 Alhaji Sale Hassan V. Alhaji Jibrila Jauro at the Federal Capital Territory High Court, Abuja between 1994 and 1997…… N2,805,000.00.
(ii) Interest thereon at the rate of 21% per annum effective from 1st March, 1997 up to 15th May, 2000………. N2, 865,325.00
2(i) Settlement of Bill of Professional charges dated 18th November, 1999 and served on the defendant on 20th November, 1999 for professional legal services rendered to defendant at his request as counsel in connection with Appeal No. CA/A/25/99: Alhaji Sate Hassan V. Alhaji Jibrilla Jauro, at the Court of Appeal, Abuja between 1997 and until defendant purportedly terminated Plaintiff’s retainer in November 1999 … N1, 012,000.00.
(ii) Interest thereon at the rate of 21% per annum effective from 20th December, 1999 up to 15th May, 2000 ……… N88, 550.00 N5,220,825.00
3. Interest at the rate of 21% per annum on the total outstanding claims at 15th May, 2000 until judgment is given in this suit and thereafter at the rate of 10% on the judgment debt and costs until the same is fully paid and satisfied.”
Sometime on 31st May, 2000, the defendant had filed a motion on notice seeking from court the following:
“1. Order of Court striking out the writ of summons served on the plaintiff marked “Undefended List” for being irregular and incompetent as there is no affidavit verifying the facts to be tried as “Undefended List”.
2. Order of the court dismissing or striking out the suit for non-compliance with the conditions precedent for filing of an action for recovery of professional fees by a legal practitioner under the Legal Practitioner’s Act.
3. Any such further or other orders as this Honourable court will deem fit to make in the circumstances.”
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