MAJOR GENERAL OLU BAJOWA v. FEDERAL REPUBLIC OF NIGERIA & ORS (2016)

MAJOR GENERAL OLU BAJOWA v. FEDERAL REPUBLIC OF NIGERIA & ORS

(2016)LCN/8323(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/A/155/2007

STATUTE OF LIMITATION: THE IMPLICATION OF INSTITUTING AN ACTION AFTER THE PRESCRIBED TIME PRESCRIBED BY THE STATUTE OF LIMITATION

Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the prescribed time is statute – barred. Once the time for bringing such an action lapses, the affected person is left with a bare or impotent cause of action which cannot be enforced through a judicial process or in a Court of law. See OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD (2007) 148 LRCN 1311 and AJAYI V. ADEBIYI (2012) 11 NWLR (1310) 137. per. JOSEPH EYO EKANEM, J.C.A.

CAUSE OF ACTION; THE DEFINITION OF A CAUSE OF ACTION

To determine whether a suit is time barred, the Court must first of all find out what the cause of action is and then when it accrued. See MILITARY ADMINISTRATION OF EKITI STATE V. ALADEYELU (2007) 147 LRCN 949, 595- A cause of action has been defined as,
In effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements- the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. See SAVAGE V. UWAECHIA (1972) 1 ALL NLR (1) 251, 257. per. JOSEPH EYO EKANEM, J.C.A.

STATUTE OF LIMITATION: HOW TO DETERMINE WHETHER A SUIT IS TIME BARRED

To determine if an action is statute – barred, the Court as earlier stated, must determine:
(i) What the cause of action is;
(ii) The date the cause of action accrued;
(iii) The date of the commencement of the suit as indicated on the writ of summons, and
(iv) The time prescribed by the relevant law to bring the action.
Where the period between the date of the accrual of the cause of action and the date of the commencement of the suit is beyond the time prescribed by the relevant law the suit is statute- barred. See EGBE V. ADEFARASIN (1987) 1 LWLR (47) 1, MILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU supra and AJAYI V. ADEBIYI supra: 169. per. JOSEPH EYO EKANEM, J.C.A.

THE DEFINITION OF THE PHRASE ‘WANTED PERSON’

The phrase “Wanted Person” is defined as,
“A person sought by the Police because the person has escaped from custody or an arrest warrant has been issued for the person’s arrest,”
See Black’s Dictionary 8th Ed. Page 1613. per. JOSEPH EYO EKANEM, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

MAJOR GENERAL OLU BAJOWA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA
HON. ATTORNEY GENERAL OF THE FEDERATION
HON. MINISTER OF AVIATION
INSPECTOR GENERAL OF POLICE Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, holden at Abuja (“the trial Court” for short) in Suit No.FHC/ABJ/CS/249/2004 delivered on 8/12/2005 in which the trial Court dismissed the suit of the appellant against the respondents for being statute barred. Aggrieved by the ruling the appellant has appealed to this Court vide a notice of appeal filed on 12/12/2005.

At the trial Court the appellant took out an originating summons for determination of the following questions,
“1. Whether the 1st, 2nd and 3rd Respondent have the power or authority to inquire into, censure, review and /or indict the Applicant with respect to the exercise of the power functions, duties conferred on him while he was the Sole Administrator of Nigeria Airways Limited pursuant to and by virtue of the Nigeria Airways Limited (Appointment of Sole Administrator) Decree 1988 No. 44 of 1988 (now Cap 293 Laws of the Federation of Nigeria 1990).
2. Whether in view of Section 251 of the Constitution of the Federal Republic of Nigeria 1999, the setting up by the 1st, 2nd

and 3rd Respondents of the said Commission of Inquiry into the Management of Nigerian Airways Limited (1983-1999) is not ultra vires, unconstitutional, unlawful, illegal, null and void and of no effect.
3. Whether in view of 1 and 2 above the Recommendations of the Commission of Inquiry into the Management of Nigerian Airways Limited (1983 -1999) as it affected the Applicant is not unconstitutional, illegal, unlawful and ultra vires the 1st, 2nd and 3rd Respondents and consequently null and void and of no effect.
4. Whether the 1st and 2nd Respondents decision on the Recommendation of the said Commission of Inquiry into the Management of Nigerian Airways Limited (1983 – 1999) in so far as it affected the Applicant is not illegal, unlawful and ultra-vires the Government and the said Respondents and consequently null and void and of no effect”

The originating summons was supported by an affidavit of 10 paragraphs with Exhibits and a 6 paragraph further and better affidavit.
The appellant sought the following reliefs:
“1. A declaration that the 1st, 2nd and 3rd Respondents have no powers or authority to inquire into, review, challenge and/or

indict the Applicant with respect to his exercise of powers, functions and duties as Sole Administrator of Nigerian Airways Limited in view of Nigerian Airways Limited (Appointment of Sole Administrators) Decree No.44 of 1988 now Cap 293 laws of Federation of Nigeria 1990.
2. A declaration that in view of Section 251 of the Constitution of the Federal Republic of Nigeria 1999, the setting up by the 1st, 2nd and 3rd Respondents of the said Commission of Inquiry into the Management of Nigeria Airways Limited (1983-1999) is ultra vires, unconstitutional, unlawful, illegal, null and void and of no effect.
3. A declaration that in (sic) the Recommendations of the Commission of Inquiry into the Management of
Nigeria Airways Limited (1983 – 1999) as it affected the Applicant is improper, ultra vires, unconstitutional, unlawful, illegal, null and void and of no effect.
4. A declaration that the decision of the 1st, 2nd and 3rd Respondent (sic) on the Recommendations of the
said Commission of Inquiry into the Management of Nigerian Airways Limited (1983-1999) in so far as it affected the Applicant is illegal, unlawful and ultra-vires the

Government and the said Respondents and consequently null and void and of no effect.
5. An order setting aside the said decision of the 1st, 2nd and 3rd Respondents on the Recommendation of the said Commission of Inquiry into the Management of Nigeria Airways Limited (1983-1999) as it affected the Applicant.
6. An order setting aside the Government white paper (if any) containing any decisions of the 1st, 2nd and
3rd Respondents, on the Recommendations of the said Commission of, Inquiry into the Management of Nigeria Airways Limited (1983-1999) as it affected the Applicant.
7. An order of perpetual injunction restraining all the Respondents their agents, servants and/or privies howsoever called from arresting detaining and or interfering with the Constitutional/fundamental rights of the Applicant as enshrined in the Constitution of the Federal Republic of Nigeria 1999 in connection with or pertaining to any matter related to the said decisions on the Recommendation of the said Commission of Inquiry into the Management of Nigeria Airways Limited (1983-1999).
8. An order of perpetual injunction restraining all the Respondents, their

agents, servants and/or privies howsoever called from enforcing and of seeking to enforce against the Applicant the said decision of the 1st, 2nd and 3rd Respondents on the Recommendations of the said Commission of Inquiry into the Management of Nigeria Airways Limited (1983-1999).

In response, the 1st and 2nd respondents filed a memorandum of conditional appearance and a notice of preliminary objection against the originating summons on the ground that the suit was statute- bared. It is the trial Court’s ruling on the objection that has provoked this appeal.

In keeping with the rules of this Court, the parties to this appeal filed their briefs of argument as follows:
(i) The appellant filed the following:
(a) Appellant’s brief of argument filed on 3/10/13
(b) Appellant’s reply brief to the 1st, 2nd and 4th respondents’ brief of argument, filed on 25/8/14.
(c) Appellant’s reply brief to 3rd respondent’s brief of argument, filed on 18/8/14.

The 1st, 2nd and 4th respondents filed a joint of brief of argument on 15/5/14 while the 3rd respondent filed a brief of argument on 11/6/14.

At the hearing of the appeal

on 24/2/2016, A. M. Kayode, Esq; of counsel, for the appellant adopted and relied on the briefs of argument filed on behalf of the appellant. He urged the Court to allow the appeal.

T. A Gazali, Esq (Assistant Chief Legal Officer, Federal Ministry of Justice) adopted and relied on the joint brief of argument of the 1st, 2nd and 4th respondents in urging the Court to dismiss the appeal.

Faith Ibraye, Esq (State Counsel) for the 3rd respondent adopted his brief of argument and urged the Court to dismiss the appeal.

In the appellant’s brief of argument, three issues are formulated for the determination on the appeal. The issues are,
“1. Whether in the absence of White Paper or Gazette indicating its acceptance of the Recommendation of Justice Obiora Nwazota Panel of Inquiry, the Plaintiff’s suit can be said to be statute barred.
2. Whether Exhibit “B2″ is an admission of Publication of the Government decision on the Recommendation of the Panel of Inquiry or the date of the said publication.
3. Whether in line with BELLO V DIOCESAN SYNOD OF LAGOS (1973) 3 SC PAGE 103 and other plethora of authorities, the leaned trial

Court was right now to have considered the plaintiff’s (Appellant herein) case on the merit and make specific findings, thereon.”

Counsel for the 1st, 2nd and 4th respondents in his brief of argument formulated three issues;
“(a) Whether the suit of the plaintiff/appellant was statute barred?
(b) Whether there is need to consider other issues where a matter is statute barred?
(c) Whether there was any other issue before the Court other than the preliminary objection?”

3rd respondent formulated one issue, viz; whether or not the trial Court was right when it held that the action of the appellant was status barred and subsequently dismissed the action. I shall be guided by the three issues of the appellant in determining this appeal. I shall however modify the nomenclature of the plaintiff to read “appellant.

ISSUES 1 and 2
Whether in the absence of White Paper or Gazette indicating its acceptance of the Recommendation of the Justice Obiora Nwazota Panel of Inquiry, the appellant’s suit can be said to be statute barred.
Whether Exhibit B2 is an admission of Publication of the Government decision on the

Recommendation of the Panel of Inquiry or the date of the said publication.

Appellant’s counsel, arguing the two issues together, summarized the facts of the case including the setting up of the Justice Nwazola Panel of Inquiry to look into the affairs of the Nigeria Airways Ltd from 1983 to 1999. He noted that there was no evidence that the recommendations in the report of the panel were accepted by the Federal Government and also that there was no gazette to that effect. He stated that the 4th respondent on 26/4/2004 wrote to the Attorney-General (sic. Hon. Minister of Aviation) requesting him to furnish the Police with particulars of persons claimed as suspects. He referred to the appellant’s letter to 2nd respondent (whom he wrongly described as “the 3rd Respondent”) and submitted that the words “purported” “White Paper” indicate that the White Paper is not in existence.

It was argued that the finding of the trial Court that the cause of action arose in 1999 was wrong. He referred to OWIE V. IGHIWI (2005) 5 NWLR (917) 184, 214 and submitted that the setting up of the Commission of Inquiry in 1999 did not give

rise to a cause of action. It was his view that the cause of action arose in 2004 when the 4th respondent raised a memo to the Attorney-General (sic: Hon. Minister of Aviation) on 26th April where the appellant’s name appeared as .suspect” No. 12 on the list of suspects. He cited and relied on COOKEY V. FOMBO (2005) 15 NWLR (947) 182, 207 in support of his view. Citing several cases including MILITARY GOVERNOR OF OYO STATE V. ADEKUNLE (2005) 3 NWLR (912) 294, 316 he submitted that a panel of inquiry’s report is only accepted when published in a white paper.

Counsel submitted that the finding of the trial Court that from Exhibit B2 (a newspaper report) time began to run from 18/12/2003, the date Exhibit B2 (sic; Exhibit B3) was written by appellant’s solicitor. It was added that Exhibit B4 could not be a consequence of Exhibit B3 as held by the total Court and that the appellant sued to protect his fundamental right which was threatened in the light of the 4th respondent’s memorandum.

For the 1st, 2nd and 4th respondents, it was stated that at the trial Court, appellants counsel agreed with 1st and 2nd respondents’ counsel that the

cause of action arose when the panel of inquiry submitted its?report which was in 1999. This, he said, the trial Court affirmed in its ruling. It was his view that the appellant’s counsel’s agreement amounted to an admission which binds his client. He submitted that time begins to run when the act is complete and not when the effect or consequence is felt.

Counsel stated that the trial Court upon a perusal of Exhibit B3 found that the appellant was aware of the cause of his complaint as far back as 18/12/2003. It was his contention that contrary to the position of appellant’s counsel, the trial Court’s finding was based substantially on appellants counsel’s letter (and not newspaper report). He submitted that the argument that the cause of action did not arise when the panel submitted its report as different from what the appellant put forward before the trial Court and so it is a new issue which requires leave. Counsel pointed out that the appellant sought four declaratory reliefs in
respect of the Panel report which was submitted in 1999.

He submitted that the case of COOKEY V. FOMBO supra. Cited by appellant’s counsel did not decide that a

committee’s report can only be accepted by way of a gazette or white paper. It was further argued that even if it was otherwise the question would arise as to why the appellant was in Court seeking reliefs against the report which had not been published by way of a white paper or gazette.

Counsel for 3rd respondent proffered arguments which are substantially the same with those of the 1st, 2nd and 4th respondents’ counsel. There is no need to repeat them.

In reply, appellants counsel submitted that counsel cannot by mere admission determine when time will begin to run and that such an admission is not binding on the Court. It was further submitted that appellant’s argument on cause of action cannot be a new issue as the issue of limitation was raised at the Lower Court and forms the basis of the appeal.

a bare or impotent cause of action which cannot be enforced through a judicial process or in a Court of law. See OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD (2007) 148 LRCN 1311 and AJAYI V. ADEBIYI (2012) 11 NWLR (1310) 137.

In the instant case, the trial Court held as follows.
“By Exhibit B3 written by the firm of the plaintiff’s counsel dated 18/12/2003, it is

clear that the plaintiff is aware of the allegation against him. By whatever means he gets to know is not material.
… Exhibit B4 is a consequence of the disclosure in Exhibit B3. If this is so time begin to run in this action latest on 18/12/2003. From this date to when this action was filed is well outside of 3 months envisaged by Public Officers Protection Act.” (See pages 67 and 68 of the record of appeal).

It is common ground that the suit leading to this appeal was

commenced on 6/5/2004 as indicated on the writ of summons and that the Public Officers Protection Act prescribes a period of three months from the accrual of the cause of action for filling of a Suit of this nature against the respondents. The questions then left are as to what the cause of action was and when it accrued.

?In answering those questions, it is only the originating summons and the facts deposed to in the affidavit in support that must be considered. A summary of the facts of the case as set out in the affidavit is as follows;
1. The appellant was first the Managing Director and the later the Sole Administrator of the Nigerian?Airways Limited between 8/1/1988 and 1989
2. In September, 1999, the Federal Government of Nigeria set up the Justice Nwazota Panel of Inquiry to look into the Administration of Nigerian Airways Limited between 1983 and 1999.
3. On 8/5/2002 (or December 1999) the Panel submitted a secret report to the Federal Government of Nigeria.
4. The Federal Government of Nigeria claimed to have accepted in a White Paper certain recommendations of the Panel.
5. The decision of the Federal Government has not

been published in any Gazette but rather the Government chose to leak excerpts to the press which appear to indict the appellant.
6. On 18/12/2003, the appellant’s solicitor wrote Exhibit B3 to the 1st respondent in respect of the recommendations of the panel.
7. On 26/4/2004, the 4th respondent (the Inspector – General of Police) wrote to the 3rd respondent (the Hon. Minister of Aviation) for particulars and addresses of persons named as suspects in the letter with appellant’s name as No. 12 in the list of suspected persons who were declared wanted by the Police.

There is no doubt that the appellant could not have sued the respondents in respect of the recommendations of the Justice Nwazota Panel because the Government did not issue a White Paper accepting or rejecting the same. In COOKEY V. FOMBO (2005) 15 NWLR (947) 187, the Supreme Court held that the recommendation of a committee has no binding force and cannot ground a cause of action without a law or a white paper. I agree with respondents’ counsel that the holding did not arise directly from any of the two issues for determination of the appeal. However that dictum represents the law In

GOVERNOR OF OYO STATE V. FOLAYAN (1995) 1 NWLR (413) 292, 328, ONU, JSC, stated as follows,
“The government having not yet accepted the recommendations of the Commission of Enquiry … those recommendations are legally not binding on the Government and the parties until accepted.”
In TAO AND SONS INDUSTRIES LTD V. GOVERNOR OF OYO STATE (2011) 6 NWLR (1242) 115 this Court held that,
“The Supreme Court acknowledged the significance of a White Paper in the case of COOKEY V. FOMBO (supra) when it held that the 1st respondent could not found an action, against a third party on the recommendation of a Panel of Inquiry that had not been published in a white paper… It cannot be in doubt that where a government sets up a panel of inquiry, there must be some overt act by the government to signify its acceptance or rejection of the Panel’s recommendations. The usual way of doing so is by the issuance of a white paper. The White Paper is notice to the whole world of the position taken by the government on the relevant report.”
?The reason is that a government that sets up a commission of Inquiry is at liberty to reject or accept the recommendation of

the commission. See AREMO II v. ADEKANYA (2004) 13 NWLR (891) 572. So the commission’s recommendations amount to nothing until accepted by the government in a white paper.

The trial Court relied on Exhibit B3 to hold that time began to run at the latest from 18/12/2003. Exhibit B3 is a letter written by the appellant’s Solicitor to the 2nd respondent requesting for a review of government’s decision as it affects the appellant. It is dated 18/12/2003. The letter states that “The Federal Government has purportedly in the WHITE PAPER accepted certain recommendations. “It also refers to the “said purported “White Paper. (See page 23 of the record of appeal). The word purported” is defined as ‘To profess or claim esp. falsely; to seem to be… but is neither signed nor dated.” See Black’s Law Dictionary 8th Ed. Page 1271. The Oxford Advanced Learner’s Dictionary 7th Ed. Page 1180 defines it is “That has been stated to have happened or to be true when this might not be the case.”

It must be remembered that the case of the appellant is that the Federal Government is yet to publish a white paper on the recommendations of the panel in a

Government Gazette, but rather leaked excerpts, that is, short passages thereof to the press. The appellant could not have sued on a White Paper” which, going by his assertion, was not authentic being a purported one. Again, the appellant could not have sued based on his ‘being aware of the allegations against him which came from a newspaper report or publication of short passages thereof. It must be stated that newspaper reports are not generally admissible as evidence of facts recorded in them. See LAWAL v. GOVERNOR OF KWARA STATE (2006) ALL FWLR (321) 1294, 1308. It follows therefore that knowledge or awareness derived from a private newspaper report cannot generally form the basis of a cause of action.

Thus the holding of the trial Court that time began to run on 18/12/13 was erroneous. This is the more so as it was taken in isolation from the other depositions in the affidavit in support of the originating summons that the Government had not published a white paper in a Gazette on the recommendations of the panel. In the case of MOBIL OIL PLC V. DREXEL ENERGY AND NATURAL RESOURCES LIMITED (2004) 1 NWLR (835) 142, 155, It was held that in

determining cause of action, the claim, relief and the averments in the statement of claim must be considered together and not in isolation.

I also agree with appellant’s counsel that Exhibit B4 (the 4th respondents letter to the 3rd respondent) cannot be a consequence of Exhibit B3 (the appellants solicitors letter to the 2nd respondent) because the former is not a result or consequence of the latter.

It appears to me that the cause of action in this case was Exhibit B4 in which the appellant is listed as No. 12 in the list of suspects and in paragraph 1 thereof at page 27 of the record it is stated,
“In compliance with the Federal Government directives, the above named suspects are being wanted by the police of the Force Criminal Investigation Department, Abuja…” (Underlining is mine for emphasis).

Thus the cause of action arose from the move/s of the police to arrest the appellant in compliance with the

directives of the Federal Government, that is to say, it arose from the threat to his personal liberty. The mere fact that the declaratory reliefs sought in the action were targeted at the Justice Nwazota Panel or its report does not detract from that position because the setting up of the panel or the submission of its report could not give a cause of action until the Federal Government published a white paper on it or until it acted or began to act on it as reflected on Exhibit B4. A cause of action does not arise unless all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See MUOMOH V. SPRING BANK PLC (2009) 3 NWLR (1129) 553, 570.

I hold therefore that the cause of action accrued on 26/4/2004 on account of Exhibit 4 which the appellant somehow became aware of His action filed on 6/5/2004 was well within the period of three months prescribed in the Public Officers Protection Act.

I must quickly mention that the strident submission by the respondents that appellant’s counsel admitted that the cause of action arose in 1999 is a red herring for the reason that the trial Court still went ahead to inquire

into when the limitation time began to run. Besides, where what is admitted is a conclusion of law, it has no binding effect. See ADESOLA V. ABIDOYE (1999) 73 LRCN 3256, 3283.

On account of what I have stated thus far, I enter a negative answer to issues l and 2 and resolve the same in appellants favour.

ISSUE THREE
Whether in line with Bello V. Diocesan Synod of Lagos (1973) 3 SC 103, and other plethora of authorities, the learned trial Court was right not to have considered the appellant’s case on the merit and make specific findings thereon.

Appellant’s counsel referred to the case of BELLO V. DIOCESAN SYNOD OF LAGOS (1973) 3SC 103 and submitted that having taken arguments in respect of the originating summons and the preliminary objection together, it became imperative that a decision be made one way on the other on the originating summons. It was added that failure to do so had occasioned a miscarriage of Justice, viz; in the event of the success of the appeal, this Court would send back the case to the trial Court for hearing.

He finally urged the Court to allow the appeal, set aside the judgment (sic, ruling) and invoke Section

15 of the Court of Appeal Act and grant all the reliefs sought by the appellant.

Counsel for the 1st, 2nd and 4th respondents submitted that the appellant having not made any submission regarding the originating summons cannot now turn round to argue that the preliminary objection and the substantive application were taken together and so the Court ought to have pronounced on both applications. He conceded that there was an agreement that the substantive matter and the preliminary objection be taken together but that there was no submission on the substantive application hence, there was nothing for the Court to rule on. It was further submitted that since the Court had ruled that the suit was statute-barred and dismissed the suit, there was nothing left to pronounce on.

Counsel for the 3rd respondent offered no submission on this issue.

The contention by appellants counsel that the originating summons and the preliminary objection were argued together is not borne out by the record of appeal. The trial Court adjourned the case on 5/7/04, 8/10/04 and 22/11/04 for the preliminary objection. (See Pages 54 – 56 of the record). On 22/2/05,?even

though A. A. Kayode (SAN) Senior Counsel for the appellant suggested that both the originating summons and the preliminary objection be argued together, only the preliminary objection was argued and replied to by both sides (See pages 57-60 and 61-63 of the record). The trial Court ruled on the preliminary objection, dismissing the case for being statute-bared and no more (See pages 66 – 68 of the record).

Appellant’s counsel cited and relied on BELLO V. DIOCESAN SYNOD OF LAGOS (1973) 3 SC 103 to submit that the trial Court should also have gone ahead to pronounce on the merit of the originating summons. In BELLO V. DIOCESAN SYNOD OF LAGOS supra (also reported in (1973) 8 NSCC 137, the trial Court dismissed the case of the appellant (who had claimed for damages for negligence and nuisance).
The Supreme Court at page 155 of the NSCC law report stated that
“The Court of trial should in such cases make the necessary findings and quantify the damages as this course makes it unnecessary for the Court of Appeal to send back the case for re-trial if it finds eventually in favour of the plaintiff.”

?In that case there was a full trial of the

substantive case which was dismissed. The case on appeal is not on damages and, as shown earlier, the substantive case was not argued. The case at hand is therefore not on “all fours” with the case on appeal.

I therefore resolve issue three against the appellant.

Having resolved issues 1 and 2 in appellant’s favour, the appeal succeeds and is therefore allowed. The decision of the trial Court is hereby set aside and in its place, I hereby dismiss the preliminary objection. The next point is as to the order to make, id est whether to remit the case to the trial Court for determination or to invoke Section 15 of the Court of Appeal Act to determine the case on the merits.

In the case of INAKOJU V ADELEKE (2007) 4 NWLR (1025) 423, the Supreme Court approved the position of this Court which after allowing the appellant’s appeal against the trial Court’s ruling upholding the objection against its jurisdiction proceeded to decide the originating summons on the merit. This was for the purpose of protecting the res of the dispute, that is, who was the rightful Governor of Oyo State before the tenure ended. The aforestated situation has not arisen in

this case.
Consequently Suit No. FHC/ABJ/CS/249/2004 is hereby remitted to the Federal High Court, Abuja for assignment by the Hon Chief of Judge of the Federal High Court to a judge other that the trial judge for hearing and determination.
The parties shall bear their costs.

ABDU ABOKI, J.C.A.: I agree.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother; Joseph E. Ekanem, JCA.

I also allow the appeal and remit same to the Chief Judge of the Federal High Court Abuja, to assign Suit No: FHC/ABJ/CS/249/2004 to another judge for hearing and determination.

Appearances

A. M. Kayode, Esq. with him, Miss I O AniekweFor Appellant

AND

T. A. Gazali Esq (Assistant Chief Legal Officer – Federal Ministry of Justice) with him, M. P. Wilson 11, Esq. (SSC) U. C. Okoli, Esq. (SSC) and C. J. Akah, Esq. (SC) for 1st, 2nd and 4th respondents

Faith Ibraye, Esq. (S.C ) for 3rd respondentFor Respondent