DUROJAIYE & ORS v. AHMADU BELLO UNIVERSITY, ZARIA & ANOR (2020)

DUROJAIYE & ORS v. AHMADU BELLO UNIVERSITY, ZARIA & ANOR

(2020)LCN/14210(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, May 07, 2020

CA/K/357/2017

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

PASTOR G. O. DUROJAIYE 2. ENGR. OKAH A. MICHEAL 3. ENGR. ABDULLAHI A. MATI 4. DR. I. U. ABUBAKAR 5. ADAMU IBRAHIM MALUMFASHI 6. DR. MAGAJI YAKAWADA TSOHO 7. DR. PETER SULE 8. MUSTAPHA ISA QASIM 9. MRS. NANA ABDULLAHI 10. SAMUEL ADEYINKA IBIETAN 11. MR. ANTHONY M. NACHE 12. PROF M. D. ALEGBEJO 13. AMOOR SEV S. 14. PROF. JAMES A. KAGBU 15. DR. ILIYA S. NDAMS 16. DR. ELEWECHU ONYEKE 17. DR. SALMAN A. ADISA 18. MUYIWA OWOLABI 19. MRS. LARABA MOHAMMED 20. DR. D. S. YAWAS 21. T. S. B. JATAU 22. ABDULSALAM S. ABIDEMI 23. DR. M. A. OYEBODE 24. PROF. OLADIPO M. O. A. 25. MR. E. B. AWOSAN 26. MAL. HASSAN AMINU KANO 27. PROF. I. H. NOCK 28. D. D. IBRAHIM 29. BITRUS KUSO 30. S. K. JOEL 31. DR. A. I. NWANNENNA 32. DR. B. H. ABUBAKAR 33. AKILU U. I. SAEED 34. DR. HUDU AYUBA ABDULLAHI 35. DR. ABDULLAHI BALA 36. PROF. U. F. CHIEZEY 37. JOSEPH K. DOGH 38. DR. B. I. ONYEANUSI 39. DR. (MRS) T. O. GANI-IKILAMA 40. M. O. IBRAHIM 41. DR. ABDULKARIM AGUNU 42. DR. MOHAMMAD KABIR 43. DR. IBRAHIM ADAMU 44. T. T. GBEM 45. DR. JACOD JARI 46. DR. BALOGUN G. I. 47. DR. MOHAMMED L. DABO 48. ELIMAN FRANCIS EKATA 49. ABDULLAHI SHEHU APPELANT(S)

And

1. AHMADU BELLO UNIVERSITY, ZARIA 2. A. G. OF THE FEDERATION RESPONDENT(S)

RATIO

STATUTE OF LIMITATION

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect

Limitation of Action
the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof.
It is undoubted, as the 1st Appellant’s Counsel has contended, that in the determination of when a case is statute barred, recourse is made to the Writ of Summons and Statement of Claim together with the evidence on record, where that has taken place, to know when the wrong in question occurred and compares it with the date the originating process was filed in Court. See Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR Part 1563 Page 42 at 68 Para A per Peter-Odili JSC; Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para A-B per Okoro JSC; at 208 Para B-C per Rhodes-Vivour JSC. PER ADEFOPE-OKOJIE, J.C.A.

CONSISTENCY OF CASES PRESENTED AT THE TRIAL AND APPELLATE COURT

“It is settled law that a party should be consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed in the presentation of his case before the Court to approbate and reprobate.”
The Appellant, I thus hold, cannot, in this Court, raise the issue of whether the 1st Respondent is a public officer, not being its case at the lower Court. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT A CAUSE OF ACTION WILL NOT BECOME TIME BARRED UNTIL THE INJURY OR DAMAGE COMPLETELY STOPS

As held by the Supreme Court, in INEC v Onowakpoko (2018) 2 NWLR Part 1602 134 at 167 Para E-H per Kekere-Ekun JSC, a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates. See also Gwede v INEC (2014) 18 NWLR Part 1438 Page 56 at 116-117 Para H-A per Galadima JSC. PER ADEFOPE-OKOJIE, J.C.A.

JURISDICTION OF THE COURT TO ENTERTAIN A MATTER

As rightly submitted by the Appellants’ Counsel, where the Court holds that it lacks jurisdiction to entertain a matter, the remedy is to strike it out and not dismiss it. See Sylva v. Independent National Electoral Commission (2015) 16 NWLR Part 1486 Page 576 at 621-622 Para H-C; (2015) All FWLR Part 810 Page 1121 at 1153 Para A-C per Ngwuta JSC; Sulgrave Holdings INC v FGN (2012) 17 NWLR Part 1329 Page 309 at 342 Para F-G.
In the case of Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) All FWLR Part 884 Page 1696 cited by the 1st Respondent’s Counsel, the Supreme Court did not hold that the proper order to make where a case is statute barred is to dismiss it. What the Court held, per Onnoghen JSC (as he then was), was merely to affirm the decision of the lower Courts that where a case is statute barred, the Courts are left with no jurisdiction to entertain the same. I thus resolve the 2nd issue in favour of the Appellants. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Federal High Court, Kaduna Division delivered by Hon. Justice Emeka Nwite on the 26th day of September, 2016 dismissing the Appellants’ case for being statute barred as being contrary to Section 2 of the Public Officers Protection Act, the 1st Respondent being a Public Officer. Dissatisfied by this decision, the Appellants appealed to this Court, by Notice of Appeal filed on 20/12/16.

In prosecution of the appeal, the parties filed and exchanged Briefs of Argument. In the Appellants’ Brief of Arguments filed on 6/8/18, Dr. R.O. Atabo, Esq. of R.O. Atabo & Co formulated three (3) issues to be determined by this Court as follows:
1. Considering the entire circumstances of this case as contained in the originating process and in the light of Section 318(1) of the 1999 Constitution of the Republic of Nigeria (as Amended), whether the 1st Respondent is a Public Officer to enjoy the protection of Section 2 of the Public Officers Protection Act thereby rendering the instant case statute barred.
2. Whether considering the

entire circumstances of this case as contained in the originating process, pleading of facts relating to the Federal Government Monetization policy and the frontloading of the official gazette No. 82 Vol.92 were not sufficient to establish that the police is still ongoing.
3. Having regard to the circumstances of this suit whether it was proper for the learned trial judge of the lower Court to dismiss the appellant’s case instead of striking it out.

The learned Counsel to the 1st Respondent, Kayode Amodu Esq of J.B. Majiyabe & Co in the 1st Respondent’s Brief of Arguments filed on 19/3/19 but deemed properly filed on 3/4/19, formulated two issues to be determined by this Court, as follow:
1. Whether the learned trial judge was right to have held that there case of the Appellant was statute barred in line with the provision of the Public Officers Protection Act.
2. Whether having come to the conclusion that the suit of the Appellant was statute barred by the Public Officers Protection Act, the learned trial judge was right to have dismissed the suit.

Learned Counsel to the 2nd Respondent, T.A. Gazali Esq of the Civil

Litigation Department, Federal Ministry of Justice, Maitama, Abuja filed the 2nd Respondent’s Brief of Arguments on 26/4/19 but deemed properly filed on 25/2/2020. He adopted the issues formulated by the Appellant.

I shall adopt the issues for determination as formulated by the 1st Respondent, being more succinct and encapsulating of the Appellants’ issues. These are:
1. Whether the learned trial judge was right to have held that the case of the Appellant was statute barred in line with the provision of the Public Officers Protection Act.
2. Whether having come to the conclusion that the suit of the Appellant was statute barred by the Public Officers Protection Act, the learned trial judge was right to have dismissed the suit.

THE 1ST ISSUE FOR DETERMINATION IS:
Whether the learned trial judge was right to have held that the case of the Appellant was statute barred in line with the provisions of the Public Officers Protection Act?

Learned Counsel to the Appellants has submitted that Section 2 of the Public Officers Protection Act (hereafter referred to as “the Act”) does not protect the 1st Respondent

against any action, prosecution or proceeding commenced against any act done by it in pursuance to or execution of any law or any default in the execution of such law, because the 1st Respondent is a public institution and not a public officer as defined in Section 18(1) of the Interpretation Act and Section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He cited the case of CBN vs Interstella (2015) Page 506 Paras B-C, C.A and CBN vs. Njemanze (2015) 4 NLWR (Part 1449) 276, Page 285 Paras F-G and the decision of the Supreme Court in CBN v Interstella Communications Ltd SC/500/2014 delivered on 15/12/17. He distinguished the decisions relied upon by the lower Court as being based on the 1979 Constitution. Had they been faced with the definition of Section 318 of the 1999 Constitution, it would have decided that the 1st Respondent does not fall within the contemplation of Public Officer.

Learned Counsel contended further that assuming, without conceding, that the 1st Respondent is a Public Officer, the Appellant’s action constitutes on exception to Section 2 of the Act. The position of the law that actions against

public officers cannot be commenced outside the period of 3 mouths from the date of accrual of cause of action is not an absolute one, he submitted, in order to ensure that Section 2 (a) of the Act is not manipulated to defeat the cause of Justice. He cited A.G. of Rivers State vs A.G. of Bayelsa State & 1 Or (2013) ALL FWLR (Part 699) 1087 at PP 1105-1107 Para 1.1.

He again submitted that one of the live issues in this suit is that various houses occupied by the Appellant form part of the land and that by virtue of the latin maxim quid quid plantatur solo solo cedit since the house is part of the land, it can be rightly argued that the action of the Appellants at the lower Court borders on recovery of land. The Appellants by virtue of their employment and being sitting tenants are eligible to benefit thereunder.

He again argued that the Appellant had pleaded the White Paper on Monetization Policy in their paragraphs 8-16 of the Statement of Claim and which Gazette had been frontloaded. Having been pleaded, it had become a live issue for determination by the lower Court. Had the trial Court gone through the gazette, it is clear that there is no

time limitation for action of the committee. For the Court to hold that the Appellants did not plead the fact that the policy was still ongoing is a misconception of the spirit and letters of the policy, he submitted. The non consideration of the Government White Paper was fatal, he submitted, having denied the Appellant fair hearing, thereby occasioning a miscarriage of justice.

In response, Kayode Amodu, learned Counsel to the 1st Respondent, prefaced his arguments by submitting that this issue is incompetent as the Appellant did not appeal against the finding of the lower Court on the issue of whether or not the 1st Respondent is a public officer. Having not done so and indeed conceded that they were public officers, cannot appeal against the same, as the law is settled that the finding of the Court against which there is no appeal is treated as admitted. He cited Awolola v Gov. Ekiti (2019) All FWLR Part 971 Page 1. In the event that this Court holds otherwise, he submitted that the cause of action of the Appellant arose in 2007 when they filled and submitted expression or interest forms and paid N10,000.00 or at best in 2010/2011 when they wrote to

the Committee and the Committee did not respond or allow them to take benefit of the monetization policy by selling the houses they occupied to them as claimed, citing the case of John Ebosede Emiator vs. Nigerian Army (1999)12 NWLR (Part 631) 362 at 369-370 Para H-A. He submitted that it is trite that in determining whether an action is statute barred, the processes that the Court considers are only the originating processes and not evidence and not the pleaded document. The documents pleaded by the Appellant at pages 58-70 of the records do not in any way show, he submitted, that the monetization processes is ongoing but are merely the official gazette for the approved guidelines for the sale of the houses and also circulars emanating from the office of the Secretary to the Government of the Federation and the Head of Service in respect of the monetization policy. Moreover the last of these documents was in 2004. He distinguished the cases cited by the Appellants’ Counsel, citing instead the cases of Ibrahim vs Judicial Service Commission (1998) 14 NWLR (Part 584)1 at 37 Para A-B, William O. Olagunju vs Power Holding Co. of Nigeria (2011)

LPELR-SC-140/2004, CBN vs. Asset Management Corporation (2017) ALL FWLR (Part 900) 422 at 448 Para D-E, Awolola vs the Governor of Ekiti State & 2 Ors. (2019) ALL FWLR (Part 971) 1 at 38, CBN vs SCSBV (No. 1) (2015) 11 NWLR (Part 1469)130 and CBN vs Hydro Air (Pty) Limited (2015) ALL FWLR (Part 765) 227 at 265 Para C-D.

The learned Counsel to the 2nd Respondent, T.A. Gazali Esq argued in line with the learned Counsel to the 1st Respondent. He contributed to the submission of the 1st Respondent that there being no denial of the 1st Respondent being a public officer and that the same constituted a fresh issue which cannot be raised without leave of this Court, by citing the case of Alhaji Mufutan Mohammodu Gbadomoji Esuwoye vs Alhaji Jimoh Abodunrin Imam Bosara (2016) ELC 2219 SC Page 1.

He agreed that the Appellant, having conceded that the 1st Respondent is a public officer, is caught by the doctrine of estoppels from arguing otherwise.

In the resolution of this issue, I shall address, firstly, the contention of the Respondents that the Appellants had conceded that the 1st Respondent is a public officer and that there was no appeal against the

decision of the Court that the 1st Respondent is a public officer.

I disagree with the contention that there was no appeal against the decision of the lower Court, as Ground 2(c) of the Notice of Appeal gives a lie to this submission. I however agree that the Appellants had conceded that the 1st Respondent is a Public Officer.

In the Appellants’ Written Address in opposition to the 1st Respondent’s Preliminary Objection, at Pages 272-282 of the Record, in particular at Page 276, the Appellants’ Counsel, Dr. R.O. Atabo, in response to the issue of whether the 1st Respondent “is a public office within the contemplation of the Public Officer’s Protection Act 2004”, submitted as follows:
“We respectfully submit that there is no need to join issues with the 1st Defendant on this issue as to whether the 1st Defendant is a public officer as this is a known fact. We contend that the Plaintiff’s action is not statute barred as contended by the 1st Defendant/Applicant….”

Thereafter, learned Counsel submitted arguments on whether the cause of action was not a continuing one and whether the

matter relates to recovery of land, which the Act does not bar.
The lower Court, in its Ruling held:
“….it is not in dispute whether the Defendants are public officers or not. This appears settled. That notwithstanding I need to stress the fact that the word “any person” used in Section 2 of the Public Officers Protection Act is not limited only to natural or human being.”

The Court thence proceeded to the definition of public officer, determining that the definition includes the 1st Respondent.

I thus agree with the learned Counsel to the Respondents that the question of whether the 1st Respondent is a public officer was not an issue in contention in the lower Court, notwithstanding the digression of the lower Court. A party, I hold, must be consistent in the presentation of its case in the trial and the appellate Courts. It cannot approbate and reprobate.
In the case of Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR Part 1563 Page 42 at 57 Para D-E, it was held by the Supreme Court, per Onnoghen Ag CJN (as he then was) as follows:
“It is settled law that a party should be

consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed in the presentation of his case before the Court to approbate and reprobate.”
The Appellant, I thus hold, cannot, in this Court, raise the issue of whether the 1st Respondent is a public officer, not being its case at the lower Court.

The only questions that thus come up for determination under this issue, as presented before the lower Court and this Court, are whether the cause of action was a continuing injury and whether it was a matter affecting land, and thereby not caught by the Act.
Section 2 of the Public Officers Protection Act LFN 2004 provides as follows:
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-

Limitation of Action
the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof.
It is undoubted, as the 1st Appellant’s Counsel has contended, that in the determination of when a case is statute barred, recourse is made to the Writ of Summons and Statement of Claim together with the evidence on record, where that has taken place, to know when the wrong in question occurred and compares it with the date the originating process was filed in Court. See Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR Part 1563 Page 42 at 68 Para A per Peter-Odili JSC; Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para A-B per Okoro JSC; at 208 Para B-C per Rhodes-Vivour JSC.

By their Statement of Claim at Pages 7-16 of the Record, the Appellants averred that they are all staff of Ahmadu Bello University, Zaria, Kaduna State, the 1st Respondent, and that they had been in the service of the 1st Respondent between ten to thirty-five years and have

been in quarters allocated to them by the 1st Respondent. Sometime in 2005, the Federal Government led by President Obasanjo published an Official Gazette approving the guidelines for the sale of Federal Government houses to sitting tenants through a bidding process. In compliance, the Appellants submitted their bids, with a payment by bank draft of N10,000.00. After waiting for several months, with no response, they wrote letters to the Secretary Presidential Implementation Committee on various dates between 15/3/2010 to 4/5/2011. They also wrote a letter dated 2/6/2011 to the Secretary Federal Government to ensure that the 1st Respondents complied with the monetization policy. Their letters were however not responded to, neither was their money refunded. All efforts to settle the issue administratively and amicably failed, in consequence of which they took out a Writ of Summons on 25th day of February, 2015 claiming the following reliefs:-
a. A Declaration that the Plaintiffs are entitled to Monetization Policy of the Federal Government of Nigeria.
b. A Declaration that the Plaintiffs being in occupation of their Respective houses in Zaria, Kaduna

State, allocated to them by Government of Nigeria Policy on monetization and are entitled to bid for the purchase of the houses.
c. A Declaration that the houses allocated to the Plaintiffs by the 1st Defendant are not within the core structures of the 1st Defendant and therefore entitled to be sold to them in accordance with the Monetization Policy of the Federal Government of Nigeria as contained in the circular from the Office of the Secretary to the Government of the Federation with the Ref. No. SGF/19/S.47/C.1/II/371 of 1st July, 2003.
d. A Declaration that the actions of the 1st Defendant attempting to exclude the Plaintiffs from the Federal Government Monetization Program by is illegal, null and void and in breach of the Federal Government White Paper on the Commission of Inquiry for investigation of the Federal Government Landed Property and the decision of the Federal Executive Council to lease the said houses to the Plaintiffs/Occupants.
e. A Declaration that the Plaintiffs are entitled to the same rights and privileges enjoyed by their colleagues in other institutions as a result of the Federal Government Monetization Policy.

An Order directing the immediate release of the properties in occupation by the Plaintiffs to wit: Aviation Site II and G.R.A. Quarters in Zaria to the Plaintiffs for bidding.
g. An Order compelling the Defendants to accept the Plaintiffs as the rightful bidders for Aviation Site II and G.R.A. Quarters in Zaria.
h. An Order of perpetual injunction restraining the Defendants, their agents, privies, servants and whosoever is acting on their behalf from doing anything and/or carrying out any act capable of excluding the Plaintiffs from acquiring the properties in line with the Federal Government Monetization Policy and the White Paper on same.
i. The cost of prosecuting this suit.

The lower Court, dismissing the contention of the Appellants that this is a case for recovery of land, held:
“Going by the Statement of Claim, it is not the Plaintiffs’ case that title over any or all of the 1st Defendant’s residential houses in this case is vested in them or that they have leased the house to the 1st Defendant and are seeking to recover some, or that they have superior title over the house, they cannot be heard to say that

there is case one of recovery of land (sic). I am of the view and I so hold that all the Plaintiffs want to achieve by this suit is to be allowed to partake in the Monetization Policy of the Federal Government of Nigeria it is not recovery of land.”

I have no reason to fault this decision of the lower Court. It is clear that the action before the lower Court was not for recovery of land, but as the lower Court held, and which I agree with, was merely to partake in the monetization policy of the Federal Government

The only question that thus arises for determination under this issue, is whether the cause of action was caught by the Act or whether it is a continuing injury, constituting an exemption thereto?
The lower Court, in its Ruling, held that there was no place stated in the Appellants’ Statement of Claim that the Monetization Policy is still ongoing but that it was merely mentioned in their written address and that a written address, no matter how brilliant cannot take the place of evidence or facts.
The cause of action arose, the Court thus held:
“When the 1st Defendant refused to honoured (sic) their bid and

response (sic) to their letter of complain (sic) in 2011. And having filed this action on 25th February, 2015 before the expiration of three months after the cause of action accrued (sic) is caught by the provision of the Public Officers Protection Act and therefore statute barred.”
As has been averred by the Appellants, further to their letters to the Committee on diverse dates between 15/3/2010 to 4/5/2011 and to the Secretary to the State Government and the Head of Service of the Federation on 2/6/2011 with no response, there were administrative and amicable moves to resolve the matter. When all these yielded no results, they instituted the action.
I disagree with the lower Court that the cause of action accrued in 2011 when the letter of complaint was written by the Appellants. The cause of action, I hold, is not one that can be limited to the time the letters were written by the Appellants but to the failure of the authorities to respond thereto or act on these letters, coupled with their failure to refund the various monies paid on the bids, in the event that the bids were not successful. As is undisputed, not only was there no response,

the moneys paid were not returned, the supposition being that these bids were still being considered. In addition, representations were made by the parties to resolve this matter.
The White Paper authenticating and giving a Government backing to the process was frontloaded by the Appellants.
As held by the Supreme Court, in INEC v Onowakpoko (2018) 2 NWLR Part 1602 134 at 167 Para E-H per Kekere-Ekun JSC, a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates. See also Gwede v INEC (2014) 18 NWLR Part 1438 Page 56 at 116-117 Para H-A per Galadima JSC.
The acts of the Respondents constitute a continuing injury to the Appellants, I hold, for unless the sale is made to them or a refusal of same, with a refund to them of deposits paid, it cannot be said that the Appellants are time barred to bring the action. The lower Court was thus in error to have held that the Appellants, not having pleaded that Monetization Policy is still ongoing, are precluded from holding that the injury is continuing.
Furthermore, no date has been given for how long the

representations took with the Government, as this is a matter for evidence. I thus resolve this issue majorly in favour of the Appellants.

THE 2ND ISSUE FOR DETERMINATION IS:
Whether having come to the conclusion that the suit of the Appellant was statute barred by the Public Officers Protection Act, the learned trial judge was right to have dismissed the suit.

The Appellants’ Counsel has submitted that the proper order the Court should have made is one of striking out and not dismissal. He cited the case of Sulgrave Holdings INC v FGN (2012) 17 NWLR Part 1329 Page 309 at 342 Para F-G.

The learned Counsel to 1st Respondent contended, however, that the effect of an action being statute barred is that it leaves the Plaintiff with a bare and empty cause of action and takes away his right of action, citing Asaboro v Pan Ocean Oil Corporation Nigeria Limited (2017) ALL FWLR (Part 884) 1696 at 1708 Para D. The trial Judge, he said, was right to have dismissed the suit of the Appellants.

Learned Counsel to the 2nd Respondent contended that the Appellants have not suffered any miscarriage of justice by pronouncement of an order of dismissal as the effect of a

case that is statute barred does not leave a plaintiff with a curable defect to enable a case to be refiled. He cited the case of Military Administration Ekiti State & 6 Ors. Vs Prince Benjamin Adeniyi Aladeyelu & 3 Ors. (2007) NSCQR Vol.30 page 928 at 935.

I thus resolve the 2nd issue in favour of the Appellants.

In conclusion, this appeal succeeds. The decision of the lower Court dismissing this suit is set aside. This case is remitted to the Chief Judge of the Federal High Court for reassignment to another judge of the Kaduna Judicial Division, for hearing on the merits. The parties shall bear their respective costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my Lord Oludotun Adebola Adefope-Okojie JCA and I agree that the case be remitted to the Chief Judge of the Federal High Court for reassignment to another Judge for hearing.

SAIDU TANKO HUSSAINI, J.C.A.: I have read the lead judgment prepared and delivered by my Lord Oludotun Adebola Adefope-Okojie JCA. I subscribe to the reasoning leading to the conclusion in the lead judgment, the appeal succeeds and same is allowed.

Appearances:

Dr. R. O. Atabo Esq. with him, F. O. Adeneye Esq., M. A. Jalomi Esq. and Uthman Jubril Esq. For Appellant(s)

Abdurrazaq Ahmed Esq. – for the 1st Respondent.
Suleiman Jibril Esq. – for the 2nd Respondent. For Respondent(s)