IKERE EKITI IBUKUN OLUWA TEACHERS COOPERATIVE MULTIPURPOSE SOCIETY LIMITED v. MR. YOMI AJIBUA
(2019)LCN/13774(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of September, 2019
CA/EK/64/2018
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
IKERE EKITI IBUKUN OLUWA TEACHERS COOPERATIVE MUTLTIPURPOSE SOCIETY LIMITED Appellant(s)
AND
MR. YOMI AJIBUA Respondent(s)
RATIO
WHETHER OR NOT ONCE A COURT LACKS JURISDICTION, IT SHOULD STRIKE OUT THE SUIT
When a Court lacks jurisdiction like the lower Court held there is nothing remaining for the Court to do other than to strike out the suit. Once a Court lacks jurisdiction a party cannot use any statutory provision or Common Law principle to impose jurisdiction because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike it out. Thus, the fact that a judgment is obtained by or tainted with fraud cannot be used as basis for conferring jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. The only valid way is to file the action in a Court of competent jurisdiction. See UMANAH VS ATTAH (2006) 17 NWLR PT. 1009 PG. 503 INYANG VS ETUK (2012) LPELR 8483, ODOFIN VS AGU (1992) LPELR 2225 LAKANMI VS ADENE (2003) LPELR 1750, A.G. LAGOS STATE VS AGF (2014) LPELR 22701. PER NDUKWE-ANYANWU, J.C.A.
THE MEANING OF ARBITRATION
Arbitration is a process of dispute resolution in which a neutral third party called (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. An Arbitration may be voluntarily or compulsory. Voluntary arbitration is by mutual and free consent of the parties. On the other hand, compulsory arbitration is that which occurs when the consent of one of the parties is enforced by statutorily provisions. Examples of such are State Statutes, requiring compulsory arbitration of labour disputes involving public employees.
?Therefore, Arbitration is the reference of a dispute or differences between not less than two parties for determination, after hearing both sides in a judicial matter by a person or persons other than a Court of competent jurisdiction.
KANO STATE URBAN DEW BOARD VS. FANZ CONSTRUCTION CO LTD (1990) 4 NWLR PT. 142 PG. 1.
An Arbitral Tribunal must give each party an equal opportunity to present its case and reply to the opponent?s case. The Respondent in this case failed to appear before the Arbitral Tribunal. However, the law empowers the Arbitral Tribunal to continue with the arbitral proceedings in the absence of a party in two circumstances. Where a party fails to attend or be represented at a hearing and where a party fails to submit any written submissions in documents. In order to give absent or non-participating party a reasonable opportunity, the Arbitral Tribunal should ensure that it has given that party sufficient notice that it intends to proceed with the arbitration despite that party?s absence or non-participation. PER NDUKWE-ANYANWU, J.C.A.
THE ESSENCE OF A HEARING NOTICE
The Arbitral Tribunal had done what it is expected of it. That is inviting the Respondent twice. The Panel only owes the parties a duty to invite them. It cannot force the parties to attend the tribunal sittings. See ZUOKEMEFA VS OBIPAN CO LTD (2010) LPELR 5105, where Eko JCA (as he then was) held;
?The essence of hearing notice is for the party or parties to be aware of the date their matter was adjourned to by the Court and for them to arrange to be present, if they want, at the adjourned date. A party represented by counsel is deemed to be aware of the adjourned date if the counsel representing him is aware of the adjourned date. NIGERIA NAVY VS. IRONBAR (2017) LPELR 43528 N.U.T. TARABA VS. REV. SARDUANA HABU (2018) LPELR 44057.” PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT A PLAINTIFF’S CLAIM DETERMINES JURISDICTION OF THE COURT
Jurisdiction of the Court is always determined by the plaintiffs claim before the Court.
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the writ of summons and the statement of claim or as it is in this case the orders sought. See GAFAR VS GOVT. KWARA STATE (2007) 4 NWLR PT. 1024 PG. 375, ONUORAH VS K.R.P.C (2005) 6 NWLR PT. 921 PG. 393, TUKUR VS GOVT OF GONGOLA STATE (1989) 4 NWLR PT. 117 PG. 517. PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Ekiti State delivered by Hon. Justice O.I.O Ogunyemi on December 14th, 2017.
The facts briefly stated are as follows:
The Respondent was a paid Secretary of the Appellant. The Respondent was found to have embezzled the sum of N4,301,010.00 (Four Million Three Hundred and One Thousand, Ten Naira) and which he admitted to in a statement dated 7th November, 2012. See page 39 of the Record of Appeal. The Respondent subsequently made a promissory note on 20th December, 2012 to pay N1,000,000.00 (One Million Naira) by April/May 2013. Due to the Respondent?s failure to honour the Promissory note, the Appellant instituted Suit No: HCR/11/2013 against the Respondent. At the end of trial in the said suit, the trial Court dismissed the suit for lack of jurisdiction. The said decision was not appealed by the Appellant, instead, the Appellant applied to the Director of Cooperative Services, Ekiti State to settle the dispute between the Appellant and the Respondent in accordance with
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Section 52 of the Cooperative Societies Law of Ekiti State 2012. The letter for settlement dated 2nd March, 2016 is contained at pages 40 ? 41 of the Record of Appeal. Based on the Appellant?s letter, the Director of Cooperatives sent out Arbitration notice to both parties. While the Appellant honoured the Arbitration notice, the Respondent neglected the notice and refused to submit himself to the Arbitration Panel. A final notice dated 25th June, 2016 was again served on the Respondent and yet he refused to appear.
At the end of the Arbitration process, an Arbitral Award was made in favour of the Appellant. The Arbitral Award is dated 25th October, 2016.
?
In accordance with Part VIII Section 52(7) of the Cooperative Societies Law of Ekiti State 2012, the Appellant instituted the instant suit leading to this appeal by a Motion on Notice dated 15th May, 2017 seeking the following reliefs:
(a) AN ORDER of execution of the Arbitration Award dated 25th day of October, 2016 against the debtor for the recovery of N4,634,180.00 being the amount that ought to have been paid not later than 25th April, 2017.
(b) AN ORDER of the Court mandating the Sheriffs of the Court
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to levy execution on the property of the Defendant/Debtor situate at Sadiat Area, Ilawe Road, Ado-Ekiti to recover the said N4,634,180.00. The Motion is contained on pages 1 and 2 of the Records of Appeal.
In response, the Respondent filed a Counter-affidavit. The Appellant further filed a further and Better Affidavit.
The lower Court in delivering its ruling dismissed the Appellant?s motion on grounds that there is still a subsisting judgment on the subject matter which struck out an earlier suit of the Appellant for want of jurisdiction.
Dissatisfied with the decision, the Appellant hence filed a Notice of Appeal on 9th March, 2018, containing two (2) grounds of appeal.
In accordance with the Rules of Court parties have filed their respective brief of arguments.
The Appellants? brief was filed on the 13th September, 2018 but deemed properly filed on 10th October, 2018. The Appellants, in their brief formulated two issues for determination viz:
1. Whether the lower Court was right by refusing the Application made for the execution of the Arbitral Award basing his decision on the earlier judgment.
2. Whether the
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lower Court was right by not granting the enforcement of the Arbitral Award because it amounted to sitting on an Appeal over an earlier judgment of the other Court. (Ground 2)
The Respondent on the other hand filed their brief on the 13th November, 2018 wherein he formulated a sole issue for determination viz: –
For the purpose of just and effective determination of this appeal, the respondent formulates the sole issue for determination, to wit:
IN VIEW OF THE EXTANT AND APPLICABLE LAWS, THE AFFIDAVIT EVIDENCE AND ORAL SUBMISSIONS ON RECORD, CAN IT BE RIGHTLY SAID THAT THE TRIAL COURT WAS RIGHT BY REFUSING THE APPELLANT?S PRAYERS AS CONTAINED IN MOTION NO: HCR/48M/2017, CONSIDERING THE EARLIER JUDGMENT OF THE COURT OF CO-ORDINATE JURISDICTION IN SUIT NO: HCR/11/2013 (GROUNDS 1 AND 2).
ISSUE 1
Learned counsel for the Appellant submitted that the trial judge was wrong in dismissing the Appellant?s motion for enforcement of the Arbitral Award on grounds that it lacked jurisdiction. He submitted that the trial Court in holding that decision relied on the judgment in Suit No: HCR/11/2013. He submitted that the trial Court
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ought not to have relied on the judgment in Suit No. HCR/11/2013 as the facts/claims in the said suit is different from the instant suit leading to this appeal. Counsel submitted that the instant suit leading to this appeal, which is on the enforcement of an Arbitral Award dated 25th day of October, 2016, is a separate action which ought to have been considered by the trial court independently on its own merit. He referred to Section 52 (7) of the Cooperative Societies Law of Ekiti State. He thus urged this Court to so hold.
Furthermore, counsel submitted that it is trite law that the jurisdiction of a Court is determined by the Claims of the Plaintiff and not the Defence of the Defendant or Counter-Affidavit. He relied on the case of NKUMA V ODILI (2006) 6 NWLR (Pt.977) 587.
He also submitted that the issue of doctrine of Estoppel raised by the Respondent in paragraph 20 (a) and (b) in his Counter-Affidavit won?t apply in this case as the cause of action and subject matter in the instant suit is different from the one in Suit No: HCR/11/2013. He also submitted that the Court having declined jurisdiction in Suit No; HCR/11/2013, the matter is
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dead and cannot constitute a bar to subsequent actions. He cited the case of OKOLO V UNION BANK OF NIGERIA PLC (2004) ALL FWLR (Pt 197) 981.
ISSUE 2
Learned counsel for the Appellant submitted that the trial Court was wrong in refusing to grant the Appellant?s motion for the enforcement of the Arbitral award on basis of the decision in Suit No: HCR/11/2013. It is the contention of counsel that subject matter in Suit No: HCR/11/2013 wherein the trial Court held that the Court lacked jurisdiction is different from this instant suit leading to this appeal. Thus, there was no need to vacate the order in Suit No: HCR/11/2013 before filing the application to enforce the Arbitral Award.
He thus urged this Court to set aside the ruling/judgment of the trial Court and resolve issue 2 in favour of the Appellant.
?
Learned counsel for the Respondent submitted that contrary to the contention of counsel for the Appellant, the issues and subject matter in Suit No. HCR/11/2013 and the instant suit leading to this appeal (i.e. Suit No: HCR/48M/2017) are the same. He submitted that there is a valid and subsisting judgment in Suit No:
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HCR/11/2013 (wherein the trial Court declined jurisdiction). He further submitted that the Appellant having failed to appeal or comply with the said judgment, the trial Court in Suit No: HCR/48M/2017 was right in refusing the Appellant’s application for enforcement. It is the contention of counsel that the Appellant having failed to appeal or comply with the judgment in Suit No: HCR/11/2013, the arbitration proceeding and award is illegal. He however, stated that the Respondent was served with the arbitration notices dated 21st April, 2016 and 25th July, 2016.
Counsel further submitted that assuming the arbitration proceeding was properly conducted, counsel submitted that the Appellant’s motion for enforcement was incompetent as it did not comply with the Provisions of Order 39 Rule 3 (1 & 2) of the High Court of Ekiti State Civil Procedure Rules, 2011 and Section 31 (1& 2) and 51 (1 & 2) of the Arbitration and Conciliation Act, Cap. A18, LFN 2004. It is the contention of counsel that by the said provisions the Appellant ought to have attached in its application for enforcement of arbitral award the original arbitration agreement
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signed by the parties in writing or a duly certified copy thereof and the duly authenticated original award or a duly certified copy thereof which they failed to do. He submitted that the Appellant only attached a photocopy and not a certified copy of the Arbitral Award, hence their application in Suit No: HCR/48M/2017 was incompetent. He cited the case of EBOKAN V EKWENIBE & SONS TRADING CO (2001) 2 NWLR (Pt 696) 31.
He thus urged this Court to so hold.
Learned counsel for the Appellant in his reply submitted that Section 52 (3)(a) and (b) Empowers the Director of Cooperative to settle disputes amicably or refer it to an Arbitrator for settlement. He submitted that the Respondent having been given the opportunity to defend himself before the Arbitration Panel but choose not to, the Arbitral Award is legal and valid. He referred to the Arbitration and Summon Notices served on the Respondent. He also cited the cases of ADEBAYO V TSG (NIG) LTD (2011) 4 NWLR (Pt. 1238) 493; OLADIPO V MOBA LGA (2010) 5 NWLR (Pt. 1186) 117.
?
He also contended that the Respondent having admitted liability through his statement dated 7th November, 2012 and
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Promissory note of 20th December, 2013, there was no need for further proof. He cited the case of OCEANIC BANK PLC V CSS LTD (2012) 9 NWLR (Pt 1305) 397.
On the issue of non-compliance with the High Court Rules and Arbitration and Reconciliation Act, counsel submitted that the Appellant did attached the original and duly authenticated copy of the Arbitral Award in his motion for enforcement of Arbitral Award. He also contended that the arbitration agreement is as contained in the Cooperative Societies Law of Ekiti State 2010.
He thus urged this Court to allow this appeal and grant the reliefs sought by the Appellant.
RESOLUTION
The Respondent in his brief drew the Court?s attention to the fact that the Appellant had instituted Suit No. HCR/11/2013 and a judgment delivered by A. A. Adeleye J. In his judgment, the learned trial Judge declined jurisdiction. The Suit was struck out on the premises that the learned trial Judge had no jurisdiction on the subject matter.
When a Court lacks jurisdiction like the lower Court held there is nothing remaining for the Court to do other than to strike out the suit. Once a Court lacks
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jurisdiction a party cannot use any statutory provision or Common Law principle to impose jurisdiction because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike it out. Thus, the fact that a judgment is obtained by or tainted with fraud cannot be used as basis for conferring jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. The only valid way is to file the action in a Court of competent jurisdiction. See UMANAH VS ATTAH (2006) 17 NWLR PT. 1009 PG. 503 INYANG VS ETUK (2012) LPELR 8483, ODOFIN VS AGU (1992) LPELR 2225 LAKANMI VS ADENE (2003) LPELR 1750, A.G. LAGOS STATE VS AGF (2014) LPELR 22701.
The lower Court rightly struck out the Suit since it held it had no jurisdiction. Where the Court holds that it has no jurisdiction to try the suit before it, what options are left for the litigant where a suit is merely struck out by a Court without determining it on the merit? The plaintiff still reserves the option of either appealing against the said judgment/Ruling or instituting a fresh suit.
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TSEMWAN VS GOV. OF PLATEAU STATE (2012) LPELR 7922, PANALPINA WORLD TRANSPORT (NIG) LTD VS. S. B. OLANDEEN INTERNATIONAL (2010) LPELR 2902. PDP VS. ASADU (2016) LPELR 41007.
The Appellant in this case as stated above had the option to appeal or to institute a fresh suit in a Court of competent jurisdiction as advised by the learned trial Judge in the Court below.
Therefore, the Appellant in this case had an option to either appeal against the judgment of the Court that lacked jurisdiction or to institute a fresh action in the appropriate Court. The Appellant thereafter, approached the director of Co-operative, Ekiti State for settlement of the dispute between the parties.
The dispute was referred to the Arbitration Panel of the Cooperatives vide Cooperative Societies Law of Ekiti State 2012. The Panel invited the parties. The Appellant responded. The Respondent never responded to the two invitations sent to him. Rather, the Respondent counsel wrote a letter to see the panel vide pg. 15-16 Record of Appeal.
The Respondent?s counsel referred the Arbitration Panel to the fact that there was a subsisting judgment.
However, this Court earlier on in
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this judgment had held that the suit was struck out not on merit but for lack of jurisdiction.
Therefore, the Appellant was at liberty to pursue his case in any other way he deems fit.
The Appellant had a constitutional right to pursue his case with the Ministry of Commerce, Industries and Co-operatives Ekiti State. The Respondent failed to or neglected to attend the Arbitration despite the two summons served on him. (See pages 17-18) of the Record of Appeal.
Arbitration is a process of dispute resolution in which a neutral third party called (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. An Arbitration may be voluntarily or compulsory. Voluntary arbitration is by mutual and free consent of the parties. On the other hand, compulsory arbitration is that which occurs when the consent of one of the parties is enforced by statutorily provisions. Examples of such are State Statutes, requiring compulsory arbitration of labour disputes involving public employees.
?Therefore, Arbitration is the reference of a dispute or differences between not less than two parties for determination, after
12
hearing both sides in a judicial matter by a person or persons other than a Court of competent jurisdiction.
KANO STATE URBAN DEW BOARD VS. FANZ CONSTRUCTION CO LTD (1990) 4 NWLR PT. 142 PG. 1.
An Arbitral Tribunal must give each party an equal opportunity to present its case and reply to the opponent?s case. The Respondent in this case failed to appear before the Arbitral Tribunal. However, the law empowers the Arbitral Tribunal to continue with the arbitral proceedings in the absence of a party in two circumstances. Where a party fails to attend or be represented at a hearing and where a party fails to submit any written submissions in documents. In order to give absent or non-participating party a reasonable opportunity, the Arbitral Tribunal should ensure that it has given that party sufficient notice that it intends to proceed with the arbitration despite that party?s absence or non-participation.
The Respondent had not complained about the Arbitral Tribunal or the mode at which it conducted its affairs concerning this dispute.
?The Arbitral Tribunal had done what it is expected of it. That is inviting the Respondent twice.
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The Panel only owes the parties a duty to invite them. It cannot force the parties to attend the tribunal sittings. See ZUOKEMEFA VS OBIPAN CO LTD (2010) LPELR 5105, where Eko JCA (as he then was) held;
?The essence of hearing notice is for the party or parties to be aware of the date their matter was adjourned to by the Court and for them to arrange to be present, if they want, at the adjourned date. A party represented by counsel is deemed to be aware of the adjourned date if the counsel representing him is aware of the adjourned date. NIGERIA NAVY VS. IRONBAR (2017) LPELR 43528 N.U.T. TARABA VS. REV. SARDUANA HABU (2018) LPELR 44057.”
That said, the Tribunal sent the Respondent adequate notice informing him of the case pending before it against him. It therefore, means that the Respondent was aware of the dispute before the tribunal but chose not to participate in it. The duty owed the Respondent was satisfied and therefore, the Tribunal was competent and had the necessary jurisdiction to deal with the dispute placed before it.
?
The Respondent in this appeal has not challenged the Arbitral Award. The Respondent only
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challenged the jurisdiction of the Court to hear an application to enforce the Arbitral Award on the ground that the Court had no jurisdiction as the lower Court had struck out the suit No. HCR/11/2013 for want of subject matter jurisdiction.
May I quickly say that contrary to the Respondent(s) submission, this appeal is not an extension of the suit in the lower Court HCR/11/2013.
The Appellant had taken the option of instituting a fresh suit with the Arbitral Tribunal subject to the Co-operative Societies Law of Ekiti State 2012.
The Appellant after the Tribunal had made its Award, the Appellant Approached the High Court for its enforcement vide S.52 (7) of the Cooperative Societies Law of Ekiti State 2012 which provides as follows:
?The decision of the arbitrator shall be enforced by any Court which has jurisdiction in a Civil Suit between the parties to the dispute.”
The High Court of Ekiti State has jurisdiction in Civil suits and therefore had jurisdiction to give orders for the enforcement of the Arbitral Award. The judgment in HCR/11/2013 cannot affect, the enforcement of this Arbitral Award. Both cases are different
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in terms of subject matters. In HCR/11/2013 the subject matter as the Court held can only be heard in National Industrial Court. However, the enforcement of Arbitral Award is a different issue all together.
The High Court of Ekiti State has Jurisdiction to hear Civil matters and as such, the lower Court had jurisdiction to hear the application for enforcement of the Arbitral Award.
Jurisdiction of the Court is always determined by the plaintiffs claim before the Court.
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the writ of summons and the statement of claim or as it is in this case the orders sought. See GAFAR VS GOVT. KWARA STATE (2007) 4 NWLR PT. 1024 PG. 375, ONUORAH VS K.R.P.C (2005) 6 NWLR PT. 921 PG. 393, TUKUR VS GOVT OF GONGOLA STATE (1989) 4 NWLR PT. 117 PG. 517.
It appears that there is a misconception on the part of the Respondent?s counsel. This application in motion No. HCR/48M/2017 is a fresh case unrelated to the one of HCR/11/2013.
This motion No. HCR/48M/2017 is to enforce the Arbitral Award by the Tribunal.
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The trial Court erred in law in refusing to hear the application as it would be sitting on appeal on a judgment of a Court of Co-ordinate jurisdiction. The suit HCR/11/2013 was struck out for want of jurisdiction. The Appellant is not appealing that judgment in the lower Court rather the Appellant took the dispute to an Arbitration Tribunal whose award it sought to enforce in the Court below.
The learned trial Judge in HCR/48M/2017 with respect misconstrued the intent of that motion on notice. The Appellant did not appeal the judgment in Suit No. HCR/11/2013.
I dare say that the learned trial Judge in motion No. HCR/48M/2017 erred in law in refusing to deal with the application and the orders sought.
The Appellant was right to have sought to enforce the Award of the Arbitral Tribunal. However, the trial Judge did not again go into the merits of the application and held that it lacked the necessary vires to deal with it, holding that he could not sit on appeal over a decision of a brother Judge of co-ordinate jurisdiction.
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The Respondent in his argument submitted that the Appellant?s motion was incompetent as it did not comply with the
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provision of Order 39 R3 (1 & 2) of the High Court of Ekiti State Civil procedure Rules 2011 and S.31 (1 & 2) and S.51 (1 & 2) of the Arbitration and Conciliation Act Cap A18, LFN 2004.
In the Court below, the Respondent did not canvass that the motion was incompetent but that, the Court lacked the necessary vires to supposedly sit on appeal on the judgment of a brother judge. I will not go further into the merits and demerits of this application for reason to be given below.
This appeal is allowed. I hereby set aside the ruling of the Court below. This suit is to be remitted to the Chief Judge Ekiti State to assign to another Court to consider the motion No. HCR/48M/2017 on the merit.
No order as to cost.
PAUL OBI ELECHI, J.C.A.: I have read in draft before now the lead judgment of my learned brother Uzo-Anyanwu JCA just delivered.
I agree with his reasoning and conclusion in allowing the appeal. As well, I also adopt them as mine in allowing the appeal as there is nothing more to add.
The appeal is hereby allowed and the ruling of the lower Court is set-aside. However, the
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suit is to remitted back to the Chief Judge of Ekiti State to assign to another judge to consider and determine the motion No: HCR/48M/2017 on the merit it deserves. No order as to costs.
Appeal Allowed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to preview the draft of the lead judgment by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.
I am in complete agreement with the reasoning and conclusions reached therein. In the result, I also allow the appeal and abide by the orders made therein.
?I make no orders as to costs.
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Appearances:
A. O. Okeya, Esq., Dr. A. A. Ojo, Esq., B. I. Ogunsemi, Esq. and S.C. OdofinFor Appellant(s)
Ebenezer Gbenga Alabadan, Esq. with him, Adefisayo Oyedeji, Esq. and Taiwo Olatunji, Esq.For Respondent(s)
Appearances
A. O. Okeya, Esq., Dr. A. A. Ojo, Esq., B. I. Ogunsemi, Esq. and S.C. OdofinFor Appellant
AND
Ebenezer Gbenga Alabadan, Esq. with him, Adefisayo Oyedeji, Esq. and Taiwo Olatunji, Esq.For Respondent