Aniocha North Local Government Council & Ors V. MR. John Eze (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BOLOUKUROMO MOSES UGO J.C.A.(Delivering the Leading Judgment)

This appeal is against the ruling of the Delta State High Court of 1/12/2015 in Suit No HCI/5/2009 dismissing the application of the appellants to strike off the names of 2nd and 3rd appellants from the said action for want of jurisdiction. Appellants are defendants in that action instituted by the respondent in which he claimed against them damages for alleged destruction of his cattle ranch. The appellants? grounds for the application were basically two-fold as follows:

1. That 2nd appellant was not served the originating processes in the suit and so the Court had no jurisdiction over him.
2. That the respondent?s action did not disclose any reasonable cause of action against 2nd and 3rd appellants as they were agents of the 1st appellant, a disclosed principal who alone is in law responsible for their actions and could be sued.

The application was brought in 2015 even as the action was filed six years earlier in 2009 and the appellants had over the years all entered conditional appearance to the suit, filed a joint statement of defence and even amended it twice with the

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leave of Court.

In her ruling of 01/12/2015 dismissing the application, the trial Judge, C. O. Ogisi J. held:

1. That the bailiff also served on the 1st appellant the originating processes meant for the 2nd appellant, which was she said was wrong; but that since the 2nd appellant failed to complain timeously but went ahead to enter appearance to the suit and even filed a defence to the action, he had waived service of processes and it was too late for him to complain about it.
2. That though the 2nd and 3rd appellants are agents of the 1st appellant and in an ordinary agency relationship the principal is bound by the acts of the agent that fall within the scope of his authority, an agent who exceeds his authority does not bind his principal and since the allegation of the respondent is that the 2nd and 3rd appellants went outside their scope of duties or authority and maliciously destroyed his cattle ranch, a cause of action was disclosed against them.

The appellants – strangely including the 1st appellant, Aniocha North Local Govt. Council which was neither an applicant before the lower Court in the real sense of the word (it did not seek for

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any prayer nor was any intended to benefit it) nor complained here that the orders or pronouncements of the lower Court affected it – have now lodged the instant appeal against that decision. They did so on four grounds of appeal, from which their counsel, Chief Krees Njiokwuemeni, has formulated the following four issues for determination in their brief of argument:

1. Whether or not the learned trial Judge was right when he held that the claim of the claimant/respondent disclosed reasonable cause of action against the 2nd and 3rd appellants.
2. Whether the 2nd and 3rd appellants acted beyond their duties to make them necessary parties to the suit of the respondent.
3. Whether or not the learned trial Judge was right when it held that the 2nd appellants had waived his right to complain of the non-service on him of the writ of summons with the accompany documents.
4. Whether or not the learned trial Judge was right when he decided a live issue in the substantive matter in an interlocutory application.

?On their issues 1& 2 of whether or not the learned trial judge was right when she held that the claim of the claimant/respondent

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disclosed reasonable cause of action against the 2nd and 3rd appellants and whether they acted beyond their duties to make them necessary parties to the suit of the respondent, appellants, after defining cause of action as the factual situation/basis or some factual situations a combination of which makes the matter in ligation an enforceable right or an actionable wrong( for which he referred to the case Daily Times Of Nig. Plc & Ors. v. D.S.V. Ltd (2014) All FWLR (PT. 713) 1978 @ p.2002), submitted that the learned trial judge was wrong when she held that the claimant/respondent?s action as constituted in the writ of summons and further amended statement of claim disclosed reasonable cause of action against the 2nd and 3rd appellants. No iota of wrong whatsoever was averred by the respondent to have been committed by the 2nd and 3rd appellants and so no reasonable cause of action is disclosed against them talk less of one that has any chance of success, their counsel Krees Njiokwuemeni argued. It was argued, further, that respondent only stated in his claim that 2nd and 3rd appellants were the Executive Chairman and Medical Officer of Health

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respectively of the 1st defendant/appellant Council and that does not make them responsible as agents of 1st appellant. They referred us to the cases of Military Administrator. Benue State v. Clement Abayilo(Supra) At P.615, Paras. E-G and Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors.(2009) All FWLR (Pt. 470) P. 607 @ 623.They argued, too, that it was not disclosed that 2nd and 3rd appellants exceeded their respective scopes or functions as Executive Chairman and Medical Officer of Health of the 1st defendant. That being the case, counsel argued, they are not necessary parties to the action of the respondent and ought to be struck off from it and the lower Court was wrong in refusing to oblige their request.