GRENACO NIGERIA LIMITED & ANOR v. ABOLADE JOHNSON NIGERIA LIMITED & ORS
(2019)LCN/12687(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of February, 2019
CA/IL/79/2016
RATIO
JURISDICTION: ISSUANCE OF CONCURRENT JURISDICTION
“It ought to be reiterated, that the issuance of a concurrent writ of summons is applicable where one or more of the defendants reside outside the jurisdiction of the Court and one or more of such defendants are resident within the Court’s jurisdiction. See PURECHEM IND. LTD. VS. SPICA SHIPPING CO. LTD. (2012) 3 NWLR (Pt. 1287) 327. Invariably, in such a situation, Section 98 of the Sheriffs and Civil Process Act provides that a writ of summons for service out of the State of the Federal Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or FCT, and shall be marked as ‘concurrent’. See OWNERS OF MV ‘MSC’ AGATA VS. NESTLE (NIG.) PLC (2014)1 NWLR (Pt. 1328) 270 @ 289 paragraph D per Ogunwumiju, JCA; AJIBOLA VS. SOGEKE (2003) 9 NWLR (Pt. 826) 494 @ 529 paragraph H; PURECHEM IND. LTD. VS. SPICA SHIPPING CO. LTD. (2012) 3 NWLR (Pt. 1287) 327.” PER PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
ORIGINATING SUMMONS: WHERE ORIGINATING SUMMON IS PROCESSED WITHOUT PRIOR ORDER
“Thus, the fact that service of originating process on the defendant or respondent is a fundamental condition precedent to the exercise of the jurisdiction of a Court to entertain, hear, and determine any action or matter, before it. Thus, any Judgment, decision or order given by the Court against a party without prior service of the originating processes there upon, would tantamount to a nullity. In the case of OKOYE VS. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (Pt. 1110) 335; it was aptly held by the Apex Court: Where any doubt as to whether or not service of Court process was or was not properly effected exists, a judgment obtained by a party to a suit in the absence of the other party to the suit has to be set aside to ensure that both parties are heard before a decision is made. See also (2008) All FWLR (Pt. 441) 810.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. GRENACO NIGERIA LIMITED
2. ARCH. JOHN FEMI OLOWO Appellant(s)
AND
1. ABOLADE JOHNSON NIGERIA LIMITED
2. MR. FOLUSHO ADEBARA
(Trading as Folubara Nig. Enterprises, Chairman and representative of the 3rd -27th defendants)
3. CIMPIC NIGERIA LIMITED
4. BERYL GEO INFORMATICS LIMITED
5. BOTMAK NIGERIA LIMITED
6. SUL-RASH NIGERIA LIMITED
7. DAH POFAS NIGERIA LIMITED
8. BOLA LEKAN & TINY INVESTMENT LIMITED
9. ROCKBASE VENTURES LIMITED
10. MR. M.M. OGUNDELE
(Trading as M.M. Ogundele Enterprises)
11. ARCH. TUNDE MOYOSORE
(Trading as Precise Construction Nig. Limited)
12. JAMAJE CONSTRUCTION NIG. LIMITED
13. RICH OAK SERVICES LIMITED
14. RICASIL INTERNATIONAL LIMITED
15. YUSUF JIMOH
16. WOMAN OF SUBSTANCES NIGERIA LTD.
17. SMASB LIMITED
18. HON. FAROUK UMAR ABDULLAHI
19. FEDERAL MORTGAGE BANK OF NIGERIA
20. THE GOVERNOR, KWARA STATE
21. THE REGISTRAR OF TITLES, KWARA STATE
22. KWARA STATE GOVERNMENT BUREAU OF LANDS
23. THE ATTORNEY GENERAL OF KWARA STATE
24. ADEWALE OLATUNDE ESQ.
25. CHIEF S. R. ASHAOLU ESQ.
26. TUYIL PHARMACY NIGERIA LIMITED Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the ruling of the Kwara State High Court delivered on February 18, 2016 in Suit No. KWS/IL/277/2015. By the ruling in-question the Court below, Coram M. A. Folayan J; struck out the suit on the ground that ?the writ of summons and other originating processes’ filed therein are incompetent, null and void, thus depriving the Court of necessary jurisdiction to entertain same.
BACKGROUND FACTS
The genesis of the instant appeal could be traced to September 14, 2015. That was the day the Appellants filed in the Court below a writ of summons seeking various declaratory and injunctive reliefs against the 1st and 38th Defendants named therein.
By paragraph 35 of the statement of claim filed along with the said writ of summons, the Appellants claimed against the Defendants jointly and severally:
1. A Declaration that the Judgments, Rulings and Execution Orders in Suit Nos: KWS/335/10, KWS/115/12 and KWS/25m/12 are null and void and of no effect for non- service of Court processes, willful concealment of facts, fraudulent misrepresentation, fraud, impersonation, collusion and forgery.
2. A Declaration that the purported sale of the 47.067 hectares of land and 2.784 hectares of land respectively, covered by the Certificates of Occupancy Numbers KW16286 and KWl6379 both at along Ogbomosho Road, Ilorin West Local Government Area of Kwara State and registered as 34/34/XXV and 35/35/XXV (Certificate of Occupancy) of the Lands Registry in the Office at Ilorin by the 32nd Defendant to the 38th Defendant in pursuance of Judgments, Rulings and Execution Orders fraudulently obtained in Suit Nos: KWS/335/10, KWS/115/12 and KWS/25m/12 is illegal, improper and null and void.
3. An Order setting aside the Rulings, Judgments and Execution Orders delivered in Suit Nos: KWS/335/10, KWS/115/12 and KWS/25m/12 for non-service of Court processes, willful concealment of facts, fraudulent misrepresentation, fraud, impersonation, collusion and forgery.
4. An Order setting aside the sale of the 47,067 hectares of land and 2.784 hectares of land respectively, covered by the Certificates of Occupancy Numbers KW 16286 and KW16379 both at along Ogbomosho Road, Ilorin West Local Government Area of Kwara State and registered as 34/34/XXV and 35/35/XXV (Certificate of Occupancy) of the Lands Registry in the Office at Ilorin by the 32nd Defendant to the 38th Defendant.
5. An Order of Injunction restraining the 38th Defendant, servants, privies, executors, assignees or personal representatives, from dealing or, further dealing with the properties at along Ogbomosho Road, Ilorin covered by the Certificates of Occupancy Numbers KW16286 and KW16379 in any manner pending the determination of this suit.
6. An Order of Injunction restraining the 31st Defendant from registering the title holder of Certificates of Occupancy Numbers KW16286 and KW16379, covering 47.067 hectares of land and 2.784 hectares of land respectively, both at along Ogbomosho Road, Ilorin West Local Government Area of Kwara State and registered as 34/34/XXV and 35/35/XXV [Certificate of Occupancy) of the Lands Registry in the Office at Ilorin, in favour of any person other than the Claimants in this suit pending the determination of this suit.
7. An Order restraining the 33rd Defendant from dealing with the land covered by the Certificates of Occupancy Numbers KW16286 and KW16379 in any manner inimical to the Claimants? interests on the land bending the determination of this suit.
8. An Order directing all the parties to this suit to maintain status quo in respect of the property covered by the Certificates of Occupancy Numbers KW16286 and KW16379 pending the determination of this suit.
9. An Order consolidating Suit Nos: KW8/335/10, KWS/115/12 and KW8/25m/12 instituted against the Claimants.
10. An Order for trial/hearing in Suit Nos: KWS/335/10, KWS/115/ 121 and KW8/25m/12.
11. An Order for independent assessment of the property covered by the Certificates of Occupancy Numbers KW16286 and KW16379; and assessment of value of construction work on the site as at when done and now.
12. An Order for damages in the sum of N10,000,000,000.00.
13. An Order for N10,000,000.00 as cost of action.
14. An Order for 10% interest on the judgment sum until final liquidation of same.
See pages 50 – 57 (writ of summons and 57 – 65 (statement of claim) of the record of appeal.
Upon been served with the originating processes, the 18th and 19th Respondents deemed it expedient to file notice of preliminary objection, thereby challenging the jurisdiction of the Court on the ground that the writ of summons was bad, null and void. It was equally contended, that the 19th Respondent is a Federal Mortgage Bank of Nigeria, with its Head office in Abuja, while service was done on its Ilorin Branch office which has no authority to accept service of Court processes on behalf of the 19th Respondent.
Afortiori, the 18th Respondent equally filed and application seeking the Court below to strike out its name, as no dispute has been shown to be between it and the Appellants at the Court below.
On January 20, 2016, the learned counsel to the respective parties addressed the Court on the issue regarding the competence of the suit vis-a-vis the jurisdiction of the Court. On the February 18, 2016, the Court below delivered a considered ruling to the conclusive effect.
RULING
There are 3 motions of 38th, 29th and 28th Defendants Applicants asking for the striking out of the writ of summon as being improperly issued and the service of same should be set aside and striking out the entire suit for lack of jurisdiction by this Court. Alternatively to set aside the interim order of injunction granted the claimant by this Court on 29/9/15 for lack of jurisdiction. The 3 motions asking for similar reliefs by consent of all the counsel were consolidated but each counsel argued his own motion. The motions were brought pursuant to Order 11 Rules 1 and 2, Order 2 Rule 9, Order 6 Rules 9, 10 and 12 (1) and (2) of the Rules of this Court, and Section 98 of the Sheriff and Civil Process Act?
Based on the earlier discussed non-compliance with Order 6 Rules 9 and 10, and Order 5 Rule 6 and Order 2 Rule 9 of the Rules of this Court the non-compliance also with Sections 98 and 97 of Sheriff and Civil Process Act, the writ of summon and other originating processes filed by the claimants Respondents in this suit are incompetent null and Void. This Court is therefore deprived of the necessary jurisdiction to entertain this suit. This suit for these reasons is hereby struck out.
SGD
HON. JUSTICE M. A. FOLAYAN
JUDGE
18/2/16
The record of appeal was transmitted to this Court on August 16, 2016. On November 29, 2018, when the appeal came up for hearing, the learned counsel were accorded the privilege of adopting their respective briefs of argument. Most particularly, the Appellants’ extant brief was filed on 15/02/2018. Though unpaginated, that brief actually spans a total of 23 pages. At page 3, three issues have so far been outlined:
i. Whether the initial writ of summons filed by the Appellants on the 14th of September, 2015 was valid and competent?
ii. Whether the service of the originating processes on the 19th Respondent at Federal Mortgage Bank of Nigeria, Ilorin was valid and proper?
iii. Whether the Appellants have a reasonable cause of action against the 18th Respondent?
The Issue No. 1 is canvassed at pages 3 – 10 of the Appellants’ brief. In a nutshell, it’s submitted that the decisions in AGIP NIG LTD VS. AGIP PETROLI INT. (2010) 5 NWLR (Pt. 487) 348 and DEROS MARITIME LTD VS. MV ‘MSC’ APAPA (2015) 1 NWLR (Pt. 1439) 51 (relied upon by the Court below in the vexed ruling) are not apposite to the facts of the instant case. The reason being that the two cases in question were governed by the Federal High Court (Civil Procedure) Rules, 2000, whereas the instant suit was governed by the Kwara State High Court (Civil Procedure) Rules, 2005. Secondly, that the ratios in AGIP NIGERIA LIMITED VS. AGIP PETROLI INTL (Supra) and DEROS MARITIME LIMITED VS. MV ‘MSC’ APAPA (Supra), relied upon by the Court below was not applicable to the circumstances of the instant case, and thus misapplied by the Court. See STABILIN VISION (NIGERIA) LIMITED VS. SANDERTON VENTURES (2011) 8 NWLR (Pt. 1249) 258 @ 276.
Thus, contended, that the issuance of originating processes at the High Court of Kwara State is governed by Order 6 of the Kwara State High Court (Civil Procedure) Rules, 2005 which do not require any claimant to obtain leave of Court to issue a writ of summons where the defendant are outside jurisdiction. The Court is urged to hold, that the writ of summons filed by the Appellants at the Court below on 14/09/2015, without leave of Court, was valid and competent.
Further submitted, that Order 6 Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules, 2005 and Section 98 of the sheriffs and civil process Act obviously contemplate circumstances where there are more than one defendant. See AJIBOLA VS. SOGEKE (2003) 9 NWLR (Pt. 826) 494 @ 529 paragraph H; PURECHEM INDUSTRIES LIMITED VS. SPICA SHIPPING COMPANY LIMITED (2012) 3 NWLR (Pt. 1287) 327; OWNERS OF MV ‘MSC’ AGATA VS. NESTLE (NIG) PLC (2014), NWLR (Pt. 1388) 270 @ 289 paragraph D; regarding the concept and meaning of concurrent service.
The Court is urged to hold, that the decision of the Court below (at pages 438 – 439 of the records) is perverse and has occasioned a miscarriage of justice, and to set same aside.
The Issue No. 2 is argued at pages 10 – 15 of the brief, to the effect that in view of the Affidavit of service of the Court bailiff, the burden of proof of irregularity of service there by rested squarely on the 19th Respondent who shall fail if no further evidence was given pursuant to Sections 13 and 168 (1) of the Evidence Act 2011. See Sections 1, 9, 18 and 20 of the Federal Mortgage Bank of Nigeria Act; ESTATE OF LATE CHIEF H. I. S. IDISI VS. ECODRIL NIG. LTD (2016) 12 NWLR (Pt. 1527) 355 @ 375 – 376.
Further submitted, that the finding of the Court below that it’s only the Managing Director at Head Office in Abuja that can receive process on behalf of the 29th Defendant, was not premised on any fact before the Court. SeeKRAUS THOMPSON ORG. LTD VS. UNIVERSITY OF CALABAR (2004) 9 NWLR (Pt. 879) 631 @ 651; BOB – MANUEL VS. RIVERS STATE (2016) 11 NWLR (Pt. 1523) 364 @ 384 paragraph H. RABIU VS. STATE (1980) 12 NSCC 291 @ 309; OSAYOMI VS STATE (2007) 1 NWLR (Pt. 1015) 352 @ 375.
The Court is urged to hold, that the decision of the Court below in setting aside the service of the originating process on the 19th Respondent, is perverse.
The Issue No. 3 is canvassed at pages 15 – 18 of the brief, to the effect that the Court below considered only paragraphs 7 and 10 of the statement of claim in holding that there was no dispute between the Appellants and the 18th Respondent. That the Court failed to consider paragraphs 42 and 55 of the statement, which are prayed jointly and severally against all the Respondents. See OHAJI VS. UNAMKA (2011) 4 NWLR (Pt. 1236) 148 @ 160; SEAGULL OIL LIMITED VS. MONI PULO LIMITED (2011) 15 NWLR (Pt. 1271) 525; IBRAHIM VS. OJONYE (2012) 3 NWLR (Pt. 1286) 108 @ 131.
The court is urged to so hold.
On the whole, the Court is urged to allow the appeal.
In response to the Appellants’ brief in question, the 1st, 2nd, 4th, 7th, 10th, 12th, 13th, 15th, 16th, and 17th Respondents’ Amended brief was filed on 02/11/2018. It was settled by Josiah Adebayo, Esq. of D. Akin Akintoye and Co. It spans 13 pages. Pages 3 – 5 of the said brief deal with a Notice of Preliminary Objection and Argument there upon. The Preliminary Objection to the jurisdiction of the Court is predicated on four grounds.
In the main, it was argued that by virtue of Section 2 of the Public Officers Protection Law of Kwara State 2006, an action must be instituted within 3 months of the accrued of the cause of action.
That in the present case, the cause of action accrued on 26/04/2012 and 06/12/2012. But the action was instituted sometime in 2015 a period of over 3 years since the accrual of the cause of action.
It is postulated that it?s not a defence that the Respondents are not public officers, and cannot raise objection to the jurisdiction of the court. See SYLVA VS. INEC (2015) ALL FWLR (Pt. 810) 1121 @ 1150 – 1151 paragraphs H – E.
It was equally argued, that the writ of summons was neither dated by the counsel who prepared it nor was seal affixed thereto by the Registrar of the Court below. Allegedly, the writ of summons is rendered incompetent and liable to be struck out. See Order 6, Rule 1 of the Kwara State (Civil Procedure) Rules, 2005; ADAMU VS. STATE (2017) 1 – 2 SC (Pt. 1) 79.
The Court is urged to so hold.
The argument regarding the main appeal is contained at Pages 5 – 10 of the said brief. On Issue No. 1, it’s submitted that the leave of Court is not only desirable but necessary for the issuance of a writ of summons meant to be served outside the jurisdiction of the Court issuing it. SeeBROAD BANK (NIGERIA) LIMITED VS. OLAYIWOLA AND SONS (2005) FWLR (Pt. 251) 236 @ 251; ODUA INVESTMENT COMPANY LIMITED VS. TALABI (1997) 10 NWLR (Pt. 523) 1 @ 521 et al.
It was further argued, that from the provisions of the law, both the initial originating process and the subsequent one have to be marked as concurrent writ. See Order 6, Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules (Supra) and Section 98 of the Sheriffs And Civil Process Act.
Such non-compliance with the law is detrimental to the writ and case of the Appellants.
The Court is urged to resolve the Issue No. 1 against the Appellants.
The Issue No. 2 is argued at pages 8 ? 10 of the brief, to the effect that the issue deals with the construction of Section 20 of the Federal Mortgage Bank Act vis–vis service of Court process on the 19th Respondent.
It is submitted that pursuant to the provision of the Act, only the Chairman and the Managing Director of the 19th Respondent are authorized to accept service of Court processes. That by paragraph 5 of 19th Respondent’s affidavit, shows that the Chairman and Managing Director of the 19th Respondent were not in Ilorin office but the Head Office thereof. Thus, the Appellants are not permitted in law to maintain a contrary position. See OLORUNYOLEMI VS. AKHAGBE (2010) 8 NWLR (Pt. 1195) 48 @ 52; EGWATU VS. EGWATU (1992) 4 NWLR (Pt. 237) 594 @ 597; AZEEZ VS. STATE (1986) 2 NWLR (Pt. 23) 541 @ 547.
According to the learned counsel, by virtue of Sections 2 and 9 of the Federal Mortgage Bank Act, the Court below cannot be faulted in holding that there cannot be more than one Managing Director of the 19th Respondent and same would be at the Head Office. That the onus is on the Appellants to produce evidence of such service and affidavit of service by the Court bailiff.
Conclusively, the Court is urged to hold that the instant appeal is incompetent and liable to be dismissed. Thus, the Court is urged to dismiss the appeal with substantial costs.
On the other hand, the 19th Respondent’s brief was filed on March 29, 2018. It was settled by Charles Musa, Esq. The brief spans a total of 25 pages. At pages 1 – 6, a Preliminary Objection has been raised and postulated upon a sole Issue:
‘Whether based on the grounds of objection, the Preliminary Objection can be sustained to warrant dismissal of the appeal without going into the merits.’
In the main, the argument regarding the objection is to the effect that the Appellants? brief dated 15/02/2018 is incompetent on the ground that it was filed contrary to the Order of the Court. That the said brief was amended by an additional eleven (11) pages, thereby incorporating fresh argument.
It was submitted, that if the Court allows the Appellants to amend their brief as they did, that would amount to denying the 19th Respondent the right to fair hearing. See OVUNWO VS. WOKO (2011) ALL FWLR (Pt. 587) 596 @ 612 E – F.
Further submitted, that failure to comply with the Court’s order, has amounted to contempt of Court. See SHUGABA VS. UBN PLC (2000) FWLR (Pt. 30) 2702 @ 2718 E – F; OKOREAFFIA VS. AGWU (2008) ALL FWLR (Pt. 445) 1601 @ 1623 A – C; OKOTCHA VS. HERWA LIMITED (2000) 15 NWLR (Pt. 690) 249 @ 250 G ? H.
Conclusively, the Court is urged to hold that the Appellants’ brief is incompetent, and the appeal be dismissed.
Contrawise, Pages 7 – 25 of the said brief relate to the 19th Respondent’s argument on the merits. At Page 9 thereof, the 19th Respondent has deemed it expedient to canvass a sole Issue:
Whether the lower Court rightly exercised its discretion in upholding the objection of the 19th Respondent and declining jurisdiction to entertain the Suit, related to all the remaining Grounds except Ground 5 which relates to only the 18th Respondent.
The Sole Issue is argued at Pages 9 – 22 of the said brief, to the effect that in their Notice of Appeal, the Appellants did not appeal against the findings and decision of the Court below based on the 19th Respondent’s ground of objections. Therefore, the Appellants did not comply with Order 5, Rule 6 (2) and 8 of the High Court of Kwara State (Civil Procedure) Rules, 2005.
It was submitted that there being no appeal against the said findings and decision of the Court below, on the 19th Respondent’s objection, the Court of Appeal cannot disturb or review same, as they remain valid and binding: OMNIA NIGERIA LIMITED VS. DYKTRADE LIMITED (2007) 5 NWLR (Pt. 1058) 576 @ 617; NWABUEZE VS. OBI OKOYE (1988) NSCC 53 @ 63 et ?-al.
On the whole, the Court is urged to dismiss the Appeal and uphold the vexed Ruling of the Court below.
The 24th Respondent’s brief was settled by Adewale T. Olatunde, Esq., on 31/10/2018. It spans a total of 17 Pages. At Page 2, three Issues have been couched:
1. Whether the learned trial Judge was right in setting aside the Writ of Summons taken out by the Appellants for the patent fundamental defects inherent in the said Writ of Summons. Grounds 1 and 2.
2. Whether the service effected on the 29th Defendant/Respondent at Ilorin Office instead of its head office at Abuja is valid. Grounds 3 and 4.
3. Whether the lower Court came to the right decision when the Court held that the Appellants? Suit failed to disclose reasonable cause of action against the 18th Respondent. Ground 5.
The Issue No. 1 is canvassed at Pages 3 – 8 of the 24th Respondent?s brief, to the effect that having regard to the failure of the Writ of Summons (Pages 50 – 55 Record) to meet the mandatory requirements of Sections 97 and 98 of the Sheriffs and Civil Process Act, the Court below was patently right in setting aside the said Writ and its service. See SOGBESAN VS. CHIEF OF NAVAL STAFF (2015) ALL FWLR (Pt. 803) 1918 @ 1948 Paragraph D, et – al.
The Court is urged to so hold and resolve the Issue No. 1 against the Appellants.
The Issue No. 2 is canvassed at Pages 8 – 10, to the effect that from the various documents found in the Record of Appeal, any purported service of the Writ of Summons at Ilorin will be a flagrant breach of Section 20 of FMBN Act, 2004. See FIN BANK NIGERIA LIMITED VS. YUSUNAB NIGERIA LIMITED (2004) ALL FWLR (Pt. 710) 1351 @ 1365 C ? D; UBA PLC VS. EFFIONG (2012) ALL FWLR (Pt. 634) 172 @ 189 C – F; 190 B – C.
The Court is urged to so hold, and resolve the Issue No. 2 against the Appellants.
The Issue No. 3 is argued at Pages 10 – 12 of the said brief, to the conclusive effect that the Appellants by merely pleading grand collusion by the Respondents in obtaining fundamentals without Appellants setting out the particulars thereof, cannot constitute reasonable cause of action where none existed.
The Court is urged to so hold and resolve Issue No. 3 against the Appellants.
Conclusively, the Court is urged to dismiss the appeal for becoming an academic exercise.
The 26th Respondent’s brief was filed on 02/11/2018. It spans a total of 17 Pages. At Page 6 thereof, a sole Issue has been formulated for determination:
WHETHER THE TRIAL COURT WAS NOT RIGHT WHEN IT SET ASIDE THE WRIT OF SUMMONS AND HELD IT TO BE NULL AND VOID AND THUS DECLINING JURISDICTION TO TRY THE MATTER AND CONSEQUENTLY STRIKING OUT THE SUIT
The sole Issue has been postulated upon at Pages 6 – 13 of the brief in question, to the effect that the leave was improperly obtained and same can’t stand. Therefore, the Court below was right where it set aside the leave it erroneously granted.
It was submitted that Order 6, Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules 2005, cannot save the Appellants? Writ of Summons from being incompetent.
Further submitted, that the express provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act (Supra) override the provisions of Order 6, Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules. See NASIR VS. KANO STATE CSC (2010) 6 NWLR (Pt. 1190) 253 @ 276 E.
The Court is urged to so hold and resolve the sole Issue in favour of the 26th Respondent.
On the whole, the Court is urged upon to accordingly dismiss the Appeal with punitive costs.
The 29th Respondent’s brief was filed on 22/06/2017. It spans a total of 19 pages. At page 2, a sole Issue, has been couched for the preliminary objection:
“Whether based on the grounds of objection the preliminary can be sustained to warrant dismissal of the appeal without going into the merits.”
Citing the case of KEMTAS NIGERIA LIMITED VS. FAB ANIOH NIGERIA LIMITED (2007) ALL FWLR (Pt. 384) 320 @ 336 B ? D, it was submitted that the purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal, in limine, either partially or in toto.
Further submitted, that the three Issues ae not distilled from or related to the Grounds of Appeal of the Notice of Appeal. Thus, they are deemed abandoned. See CEC VS. IKOT (1999) 12 SC (Pt. 2) 133 @ 147 paragraphs 15 ? 30 et al.
The Court is urged to so hold and accordingly dismiss the appeal.
The 36th Respondent’s brief was filed on 22/06/2017. It spans a total of 16 pages. At pages 3 – 4, a preliminary objection has been raised praying the Court to strike out the appeal on the ground that the Appellants’ brief is incompetent and for failure to marry the Issues to the Grounds of Appeal. The Court is thus urged upon to strike out the appeal.
Regarding the appeal on the merits, three Issues have so far been raised at Page 4 of the said brief:
1. Whether the learned trial Judge was right in setting aside the Writ of Summons taken out by the Appellants for the patent fundamental defects inherent in the said Writ of Summons. Grounds 1, 2, 6 and 7.
2. Whether the service effected on the 29th Defendant/Respondent at Ilorin office instead of tis head office at Abuja is valid. Grounds 3 and 4.
3. Whether the lower Court came to the right decision on when the Court held that the Appellants? Suit failed to disclose reasonable cause of action against the 28th Respondent. Ground 5.
The Issue No. 1 is canvassed at Pages of the said brief, to the conclusive effect that the Court below was right to have held that the Writ was not competent. The Court is urged to so hold, and accordingly resolve the said Issue No. 1 against the Appellants and dismiss the Appeal.
The Issue No. 2 is argued at Pages 9 – 12, to the conclusive effect that in the instant case, the Court below was right going by the gamut of documents showing that the Principal/Head Office of the 29th Respondent was in Abuja while the service was purportedly effected in Ilorin.
The Court is urged to so hold, and resolve the Issue No. 2 against the Appellants.
The Issue No. 3 is canvassed at Pages 12 – 13 of the said brief, to the conclusive effect that it?s apparent that some of the paragraphs of the Statement of Claim are incompetent going by the alleged illegalities been challenged without supplying the mandatory particulars needed to validate the paragraphs.
The Court is urged to so hold, and resolve the Issue No. 3 against the Appellants, and accordingly dismiss the Appeal.
The 38th Respondent’s brief was equally filed on 22/06/2017. It spans a total of 16 Pages. At Page 6, a sole Issue has been formulated:
WHETHER THE TRIAL COURT WAS RIGHT WHEN IT SET ASIDE THE WRIT OF SUMMONS AND HELD IT TO BE NULL AND VOID AND THUS DECLINING JURISDICTION TO TRY THE MATTER AND CONSEQUENTLY STRIKING OUT THE SUIT.
The sole Issue is argued at Pages 6 ? 16 of the said brief, to the effect that the Court below was right when it set aside the Appellants’ Writ of Summons declined jurisdiction to try the matter, and consequently struck same.
It was submitted, that Order 6, Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules 2005 cannot override the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act. See NASIR VS. KANO STATE CSC (2010) 6 NWLR (Pt. 1190) 253 @ 276 paragraph E.
The Court is urged to invoke the mandatory provision of Section 98 of the Act and resolve the sole Issue in favour of the 38th Respondent.
Conclusively, the Court is equally urged upon to dismiss the appeal with punitive costs.
By the reply briefs thereof to the 18th, 19th, 24th and 26th Respondents? briefs, filed on 02/11/2018, 08/05/2018, 27/11/2018 and 17/05/2018, respectively, the Appellants have urged upon the Court to allow the appeal and set aside the vexed ruling of the Court.
I have accorded an ample consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal as a whole.
The Respondents have raised a preliminary objection and argued same in the respective briefs thereof to which the Appellants have reacted in the reply briefs thereof.
Most particularly, the preliminary objection of 1st, 2nd 4th, 10th, 12th, 13th, 15th, 16th and 17th Respondents is to the effect that the Court below lacks the jurisdiction to entertain the issue on the grounds:
i. of lack of cause of action;
ii. by their activities and offices, the 19th – 23rd Respondents are public officers within the meaning of the Public Officers Protection Law;
iii. the Writ of summons was neither dated by counsel nor sealed by the Registrar of the Court below, as stipulated under the Rules of Court.
It is obvious, as rightly postulated by the Appellants, that Grounds I – IV of the 1st, 2nd, 4th, 10th, 12th, 13th, 15th, 16th and 17th Respondents’ preliminary objection are not objections, properly so called to the hearing of the appeal. They are not complaints challenging the competence of the appeal. Yet, it is a well settled principle of law, that where a Respondent intends to rely upon a preliminary objection to the hearing of the appeal, he shall give the Appellant three clear days? Notice thereof prior to the hearing, thereby setting out the grounds of objection.
Contrawise, where the Respondent fails to file an objection, within the three days and time limit in question, the Court may decline to entertain the objection or adjourn the hearing thereof at the costs of the Respondent. See Order 10, Rules 1 and 3 of the Court of Appeal Rules, 2016.
It must be reiterated, for the avoidance of any lingering doubt, that a preliminary objection is filed against the hearing of the appeal. Thus, the clear purport and object of a preliminary objection is to challenge the competence of the appeal and/or the jurisdictional competence of the Court. See OKEREKE VS. JAMES (2012) 16 NWLR (Pt. 1326) 339 @ 348 – 349.
What’s more, by ground (iv) of the preliminary objection thereof, the Respondents appear to be challenging the competence of the suit (Writ of Summons) for non-dating, et al. Ironically, however, it is trite that where a defendant desires to challenge the validity or competence of an originating process, such as a Writ of Summons, Originating Summons (Motions) et al, or the validity of service thereof such a challenge or objection should be made at the trial Court, thereby according the said Court the opportunity to determine the Issue. Afortiori, it’s by so doing, that the Appellate Court can equally have an opportunity to review the decision of the trial Court in accordance with the appellate jurisdictional mandate thereof. See TOTAL INTERNATIONAL LIMITED VS. AWOGBORO (1994) 4 NWLR (Pt. 337) 147 @ 166.
Thus, in essence, the Respondents’ Preliminary Objection is devoid of merits and same is hereby discountenanced and dismissed.
The 19th Respondent had initially filed a Preliminary Objection dated 22/06/2017. A second Preliminary Objection, dated 29/03/2018 was equally filed by the 19th Respondent. It is obvious that the second Preliminary Objection filed by the 19th Respondent has amounted to an abuse of Court process. See OKOREAFFIA VS. AGWU (2008) ALL FWLR (Pt. 445) 1601 @ 1623; OVUNWO VS. WOKO (2011) ALL FWLR (Pt. 587) 590 @ 612.
Essentially, the second 19th Respondent’s Preliminary Objection dated 29/03/2018 is on all tours with that of the 1st, 2nd, 4th, 10th, 12th, 13th, 15th, 16th and 17th Respondents’ Objection. Thus, without much ado, the said objection is without any merits, and it is hereby dismissed.
DETERMINATION OF THE APPEAL ON THE MERITS
Having accorded an ample consideration upon the circumstances surrounding the appeal, as a whole, I am of the paramount view, that the Appellants’ three Issues raised in the brief thereof are apt for the determination of the appeal. Contrary to the Respondents’ agitation, the three Issues raised by the Appellants in the brief thereof are neither at large nor abandoned. It is obvious that the Issue No. 1 has been distilled from 1 and 2, Issue No. 2 from Grounds 3 and 4, and Issue No. 3 from Grounds 5 of the Notice of Appeal, respectively.
ISSUE NO. 1
The first Issue raises the very vexed question of whether the initial Writ of Summons filed by the Appellants on the 14th day of September, 2015 was valid and competent.
Instructively, in the course of the vexed ruling, the Court below held at Page 438, Lines 9 – 14 of the Record:
Apart from the fact that all the Writ of Summons purportedly served on all the parties (Defendants) are in contravention of the Section 98 of the Sheriff and Civil Process Act, with the resultant that he Writ of Summons not so marked are incompetent, null and void, the Claimants Respondents did not file a counter affidavit to the affidavit on the 28th Defendant.
The Court thus came to the conclusion that the non-compliance with Order 6, Rules 9 and 10, Order 5, Rule 9 of the Rules of the High Court Rules (Supra), and Sections 97 and 98 of the Sheriffs and Civil Process Act have rendered the suit incompetent:
The Writ of Summons and other Originating Processes filed by the Claimants/Respondents in this Suit are incompetent, null and void. This Court is therefore deprived of the necessary jurisdiction to entertain this Suit. The suit for these reasons is hereby struck out. See Pages 438 – 439 of the Record.
Instructively, the position of the law hitherto was that failure of the Plaintiff in a case to obtain the leave of Court to issue and serve an originating process, such as a Writ of Summons et al on a defendant outside the jurisdiction of the Court was incurably fatal, and thereby rendered the issuance and service of such originating process void, notwithstanding the appearance of the said defendant in the proceedings. This position was represented in a plethora of decisions, including:
– OTTI VS. MOBIL NIG LTD (1991) 7 NWLR (Pt. 206) 700;
– UNION BEVERAGES LTD VS. ADAMITE CO. LTD (1996) 7 NWLR (Pt. 162) 248;
– EKUMA VS. SILVER EAGLE SHIPPING AGENCIES LTD (1987) 4 NWLR (Pt. 65) 472.
– DERBY POOLS LTD VS. OCHEME (1991) 7 NWLR (Pt. 203) 323.
Most cherishingly, however, the current position of the law is that where a defendant is served with an originating process in breach of Sections 97 and 99 of the Sheriffs and Civil Process Act (supra), he has a choice either to object to the service by promptly applying to have it set aside, and the Court ex debito justicial, would accede to the application and turn a blind eye, so to say, to the defect and proceed to take steps in the matter. This issue was aptly postulated upon by the Apex Court in ODUA INVESTMENT CO. LTD VS. TALABI (1997) 10 NWLR (Pt. 523):
Non-compliance with Sections 97 and 99 of the Act is in a different category? They are statutory provisions. Being statutory provisions non-compliance with them cannot be cured by the application of local rules similar to the English Order 2 rule. This Court (sitting as a full Court) has in Ariori vs. Elemo (1983) 1 SCNLR (1983) ANLR, decided that when a right is conferred either by the Constitution or a statute solely for the benefit of an individual he should be able to forego the right or in other words waive it either completely or partially depending on his free choice and the extent to which he has forgone his right would be a matter of fact and each will depend on its peculiar facts.
Per Ogundare, JSC @ 82 paragraphs G – D. See also NEPA VS. ONAH (1997) 1 NWLR (Pt. 484) 680 per Uwais, CJN.
In the instant case, it’s obvious on the face of the record of appeal as aptly held by the Court below, that the non-compliance with Sections 97 and 98 of the Sheriffs and Civil Process Act (supra) has rendered the writ of summons incompetent, null and void and of no effect whatsoever. Indeed, it’s elementary, that rules of the High Court (supra) or any State Law for that matter, cannot by any stretch of imagination override the provisions of an Act of the parliament such as the Sheriffs and Civil Process Act (supra). See NASIR VS. KANO STATE CSC (2010) 6 NWLR (Pt. 1190) 253 @ 276 paragraph E, wherein it was aptly held that the express provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act override the provisions of Order 6, Rules 9 and 10 of the Kwara State High Court (Civil Procedure) Rules, 2005.
In the circumstance, the first issue ought to be, and it is hereby answered in the negative and accordingly resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether the service of the originating processes on the 19th Respondent, at the Federal Mortgage Bank of Nigeria, Ilorin was valid and proper.
Parties are ad idem that the originating processes in the instant case were served upon the 19th Respondent (29th Defendant) at her Ilorin business or branch office. Instructively, the trite fundamental doctrine governing service of Court processes upon parties has long been settled in a plethora of formidable authorities. Thus, the fact that service of originating process on the defendant or respondent is a fundamental condition precedent to the exercise of the jurisdiction of a Court to entertain, hear, and determine any action or matter, before it. Thus, any Judgment, decision or order given by the Court against a party without prior service of the originating processes there upon, would tantamount to a nullity. In the case of OKOYE VS. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (Pt. 1110) 335; it was aptly held by the Apex Court:
Where any doubt as to whether or not service of Court process was or was not properly effected exists, a judgment obtained by a party to a suit in the absence of the other party to the suit has to be set aside to ensure that both parties are heard before a decision is made.
See also (2008) All FWLR (Pt. 441) 810.
Therefore, an affidavit of service of Court process duly deposed to by the Court bailiff or any person authorized to effect the service setting out the fact, place, mode and date of service, shall be a Prima facie proof of the matters deposed therein. However, where issues have been joined by the respective parties regarding the affidavit of service, the Court has an onerous duty to satisfy itself that there has in fact been a service duly effected on the defendants. See OKOYE VS. CENTRE POINT MERCHANT BANK LTD (Supra); SG BANK VS. ADEWUNMI (2003) ALL FWLR (Pt. 158) 1181 @ 1196 Paragraphs E ? G; UKO vs. EKPENYONG (2006) ALL FWLR (Pt. 324) 1927; @ 1943; IDISI VS. ECODRIL NIG. LTD (2016) LPELR 40438 (SC).
The bone of contention of the 19th Respondent at the trial was that the Appellants have not complied with the provisions of Section 20 of the Federal Mortgage Bank of Nigeria Act CAP. F16, Laws of the Federation of Nigeria, 2004, which provide thus:
20. A summons, notice or other document required or authorized to be served on the Mortgage Bank under the provisions of this Act or any other enactment or law may be served by:
(a) Delivering it to the Chairman or the Managing Director of the Bank;
(b) By sending it by registered post addressed to the Managing Director at the principal office of the Mortgage Bank.
By the 19th Respondent’s affidavit, deposed to by Kelechi Ezidinma, a Litigation Officer in the law chambers of Charles Musa & Co., it’s averred:
3. The Applicant is a corporate agency created by statute with its head office at plot 266 Cadastral A.O, Central Business District, Abuja.
4. The originating processes in this suit were served on the Applicant’s Ilorin Office.
5. Due to the sensitive nature of such documents, the Applicant?s Ilorin office has no authority whatsoever to accept service of Court processes on behave of the applicant as they can only be treated by officers at its head office.
It is trite that the general procedure for effecting service of Court processes is governed by the provisions of Section 78 of the Companies and Allied Matters Act CAP. C20 Laws of the Federation of Nigeria, 2004. It is equally not in doubt, that the decisions of the Apex Court in CBN VS. AUTO IMPORT EXPORT (2013) 2 NWLR (Pt. 1337) 8 et al, is to the effect that service of Court processes on a company (such as the 19th Respondent) must be effected at the registered office of the said company. Otherwise, it is bad and ineffective if service is effected on a company at a branch office thereof.
However, in a latter decision in the case of NBC VS. UBANI (2014) NWLR (Pt. 1398) 421, the Apex Court held that possible personal service of Court processes could equally be made at a branch office of a company. In the course of interpreting the provision of Section 78 of CAMA (supra), the Apex Court applied Order 12 Rule 8 of the High Court (Civil Procedure) Rules to the effect, inter alia:
Unlike under the Act which provided that the place of service should be at the Registered or Head Office, the Rules of Court however provide that possible personal service could be effected and it does not necessarily have to be at the Registered or Head Office. The confirmation is the use of the word giving which signified personal service under the Rules is therefore deemed competent (if) it is carried out within the jurisdiction of the Court and effected on the appropriate designated officers that is to say, Director, secretary or other principal officer. The Rules of Court had in the circumstance clearly defeated the contemplation by the Appellant that service of the processes must be effected at the Registered or Head Office.
It ought to be reiterated, that the issuance of a concurrent writ of summons is applicable where one or more of the defendants reside outside the jurisdiction of the Court and one or more of such defendants are resident within the Court’s jurisdiction. See PURECHEM IND. LTD. VS. SPICA SHIPPING CO. LTD. (2012) 3 NWLR (Pt. 1287) 327.
Invariably, in such a situation, Section 98 of the Sheriffs and Civil Process Act provides that a writ of summons for service out of the State of the Federal Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or FCT, and shall be marked as ‘concurrent’. See OWNERS OF MV ‘MSC’ AGATA VS. NESTLE (NIG.) PLC (2014)1 NWLR (Pt. 1328) 270 @ 289 paragraph D per Ogunwumiju, JCA; AJIBOLA VS. SOGEKE (2003) 9 NWLR (Pt. 826) 494 @ 529 paragraph H; PURECHEM IND. LTD. VS. SPICA SHIPPING CO. LTD. (2012) 3 NWLR (Pt. 1287) 327.
Under Order 7, Rule 9 of the Kwara State High Court (Civil Procedure) Rules, 2005, it is provided, very clearly thus:
7. In the absence of any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible person at the registered principal or advertised office or place of business of the organization within the jurisdiction.
36
In the instant case, by the provisions of Section 20 of the Federal Mortgage Bank of Nigeria Act (supra), service of a Court process or any other document required or authorised to be served on the 19th Respondent may be served in either of two ways; (i) By delivering it to the Chairman or the Managing Director of the 19th Respondent; or (ii) By sending it by registered post addressed to the Managing Director at the principle office of the 19th Respondent.
By Section 20 vis a vis Sections 1, 9 and 18 of the Federal Mortgage Bank of Nigeria Act (Supra), it is obvious that (i) there is only one Mortgage Bank (19th Respondent) in Nigeria albeit with numerous branches nationwide; (ii). The Managing Director shall be the Chief Executive of the 19th Respondent and thus be responsible for the day-to-day management of the affairs thereof.
In the instant case, unlike under the provision of Section 78 of CAMA (Supra), which provides that – A Court process shall be served on a company in the manner provided by the Rules of Court the provision of Section 20 of the Federal Mortgage Bank Act (Supra) gives no room for any mode of service of Court processes other than upon the Chairman or the Managing Director of the 19th Respondent at the Head office thereof in Abuja.
Against the backdrop of the foregoing postulation, it is my considered view that the second issue ought to be answered in the positive, and same is hereby resolved against the Appellant/s.
ISSUE NO. 3
The third issue raises the vexed question of whether the Appellants have a reasonable cause of action against the 19th Respondent.
The Appellants have cited and relied upon the provision of Order 14 Rules 4 & 8 of the Kwara State High Court (Civil Procedure) Rules, 2005 as the veritable authority for suing the 19th Respondent. Order 14 Rules 4 and 8 (Supra) provide:
4. Any person may be joined as Defendant against whom the right to any relief is alleged to exist, whether jointly severally or in the alternative. Judgment may be given against one or more of the Defendants as may be found to be liable according to their respective liabilities without any amendment.
8. Where a claimant is in doubt as to the person from whom he is entitled to redress he may in such manner as herein after mentioned, or as may be prescribed by any special order, join two or more Defendants to the intent that the question as to which, if any, of the Defendant is liable and to what extent, may be determined as between all parties.
Allegedly, in its finding (holding) that there was no dispute between the Appellants and the 18th Respondent, the Court below failed to consider paragraphs 42 and 55 of the Appellants? statement of claim which were prayed jointly and severally against all the Respondents. The said paragraphs 42 and 55 of the statement of claim (pages 57 – 65 of the Record) are hereunder reproduced:
42. The claimants allege grand collusion of the Defendants against the claimants in suit NOS. KWS/335/10, KWS/115/12 and KWS/25M/12.
55. Where the claimants claim against the Defendants jointly and severally.
Against the backdrop of the foregoing paragraphs 42 and 55 of the statement of claim thereof, it’s apparent that the Appellant’s have joined the 18th Respondent to the suit on the belief that the said 18th Respondent’s presence would be crucial to the reasonable determination of the allegations against the respective Respondents. Indeed, it is a trite principle, that the plaintiff has an onerous responsibility to bring before the Court a party whose availability or presence is crucial to the determination of the case thereof. Thus, where the plaintiff fails to so to do, the Court has an onerous duty to deem it expedient to strike out the case. See IBRAHIM VS. OJONYE (2012) 3 NWLR (Pt. 1286) 108 @ 131, & 142; BELLO VS. INEC (2010) 8 NWLR (Pt.1196) 342, to the effect that a plaintiff has the monopoly of deeming it expedient to decide who to sue in any given proceedings relating thereto.
In the instant case, the Appellants have alleged grand collusion of all the Respondents in obtaining the judgments and orders of the Courts pertaining to suits NOS. (i) KWS/335/10 (ii) KWS/115/12; and (iii) KWS/25m/12. Thus, by implication, the 18th Respondent has a responsibility to respond to the allegation by filing a defence to the action.
In the circumstance, the answer to the 3rd and last issue ought to be in the positive, and same is hereby resolved in favour of the Appellants.
Hence, against the backdrop of the resolution of first and second issues against the Appellants and the third issue in favour thereof, it is obvious that the appeal succeeds in part, and it is accordingly hereby so allowed by me. The vexed decisions of the Court below delivered on January 20 and February 18, 2016 are hereby set aside.
CONSEQUENTIAL ORDER
By the Notice of Appeal thereof the Appellants have urged upon the Court to set aside the vexed decision and proceedings of the Court below, and order that the matter be heard before another judge of the said Court.
Most instructively, the principle which must guide the Court in making consequential order of retrial has been invariably laid down in a plethora of formidable authorities. Indeed, the locus classicus being the case of ABODUNDE VS. THE QUEEN 4 FSC @ 7, wherein the Federal Supreme Court (as the current Supreme Court then was) reiterated the fundamental principles thus:
We are of the opinion that before deciding to order a retrial, this Court must be satisfied:
(a) That there was an error in (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke Section 11
(1) of the Ordinance.
(b) That leaving aside the error, or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant.
(c) That there are no special circumstances as would render it oppressive to put the Appellant on a trial a second time.
(d) That the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are merely trivial; and
(e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.
See also JAMES IKHANE VS. COP (1977) ALL NLR 234; (1977) 6 SC 78, per Obaseki, JSC.
In the circumstances surrounding the instant case, it is my considered opinion, that to refuse an order for retrial of the suit on the merits would most regrettably occasion a greater miscarriage of justice to the Appellants than to grant it.
Consequently, I have deemed it expedient to hereby order remitting the case No. KWS/277/2015 to the Chief Judge Kwara State for reassignment to another Judge of the State High Court for retrial on the merits de novo.
Parties shall bear the respective Costs of litigation thereof.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA in draft before now. The reasoning and conclusions therein are agreeable to me. I agree that the case is one which ought to be sent back for retrial. In the circumstance, I join my learned brother remitting the case with No. KWS/277/2015 to the Chief Judge of Kwara State for retrial before a different Judge other than M.A. Folayan J. I abide on order made as to cost
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. and I agree with the reasoning contained therein and the conclusion arrived thereat by His Lordship. I also dismiss the preliminary objection of the 1st to 17th and 19th Respondents raised against this appeal in their respective briefs of arguments for lacking in merit.
On the merit of the appeal, I agree that the three issues arose for determination of this appeal, and I resolve issues one and two against the Appellants. But issue three is hereby resolved in favour of the Appellants. Their suit at the lower Court has disclosed a cause of action against the Respondents and they are therefore entitled to be heard and be given that opportunity. It is for this reason that I agree totally with the consequential order made in the lead judgment for the matter to be transmitted back to the Hon. Chief Judge of Kwara State, and to be assigned to another Judge to be tried de-novo. Parties to this appeal shall bear their respective costs.
Appearances:
Adenike O. Kolawole, Esq. of Kunle Kalejaye, SAN & CoFor Appellant(s)
Josiah Adebayo, Esq. of D. Akin Akintoye & Co. for the 1st, 2nd, 4th, 6th, 7th, 10th, 12th, 13th, 15th, 16th and 17th Respondents.
S. A. Bamidele, Esq. of Adekunle Bamidele & Co. for the 18th Respondent.
Josiah Adebayo, Esq. holding brief of Charles Musa, Esq. for the 19th Respondent.
A. M. Bello, Esq. (Chief State Counsel (CSC) with him, A. B. Nuhu, Esq. (Assistant Chief State Counsel (ACSC), Ministry of Justice, Kwara State for the 20th to 23rd Respondents.
O. B. John, Esq. holding brief of Adewale T. Olatunde, Esq. for the 24th Respondent.
O. W. Akanbi Esq. with him, I. V. Ogiemwonyi, Esq. and O. J. David, Esq. of Kayode Olatoke & Co. for 26th Respondent.
Hearing Notice was served on the 3rd, 5th, 8th, and 11th Respondents but not represented by Counsel.
Hearing Notice was served on the 9th, 14th, and 25th Respondents but not represented by Counsel
For Respondent(s)
