The respondent sued eight defendants for the sum of N300,000.00 as special and general damages for negligence due to the electrical connections done which destroyed its Hair Care equipment.
The 8th defendant was NEPA and following service of the writ on it, the appellant filed motion praying to set aside the writ of summons served on it in Lagos and the service thereof on the grounds that the statutory requirement for the issuance and service of the writ on the appellant in Lagos were not complied it.
Reliance was based on sections 97 and 99 of the Sheriffs and Civil Process Act and Order 2 Rule 16 of the High Court of Bendel State (Civil Procedure) Rules which states that
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"97.
Every writ of summons for service under this part out of the state or part of the Federation in which it was issued shall, in addition to any other endorsement or notice required by law of such State or part of the Federation, have endorsed thereon a notice to the following effect, (that is to say)-The summons (or as the case may be) is to be served out of the .....state (or as the case may be)......and in the........State (or as the case may be)"
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99.
The period specified in a writ of summons for service under this part as the period in which a defendant is required to answer before a court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than the longer period."
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Order 2 Rule 16 of the High Court Rules of Bendel State 1976 states thus:-
The learned trial Judge ruled that the writ in this action was not endorsed as was required by Section 97 of Sheriffs and Civil Process Act Also, the period between the date of service and the date when the appellant was required to appear in answer to the writ was not up to thirty days which was the minimum period required by the law.
Dissatisfied with the decision the learned counsel for the appellant went before the court of Appeal on three grounds of appeal.
