Chief Rex Kola Olawoye V. Engineer Raphael Jimoh & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division, hereinafter called the Court below delivered on 10th December, 2002.

Before the trial High Court of Kwara State in the Omu-Aran Judicial Division Holden at Omu-Aran, the appellant herein with three others had commenced an action as plaintiffs against the respondents as defendants by way of originating summons. They had filed a motion exparte with one on Notice on the 4th of May, 2001, along with the originating summons.

The application exparte was taken by the trial court and an interim order of injunction was granted on 10th May, 2001 against the respondents pending the hearing of the motion on notice which was then adjourned to 30th May, 2001.

In the said Notice of Motion, the plaintiffs/applicants had, pending the hearing and determination of the originating summons contemporaneously filed with the motion sought the following reliefs:

(a) An order of interlocutory injunction restraining the Respondents, their servants, agents and privies from preventing, disturbing, interfering or and hindering the 1st plaintiff/applicant howsoever from performing the duties and functions of his office and position as the Executive Chairman of the Ifelodun Local Government Council of Kwara State.

(b) An order of interlocutory injunction restraining the 1st Respondent from performing or further performing the duties and functions of the Chairman of Ifelodun Local Government Council of Kwara State or parading, presenting, portraying, styling himself howsoever as Acting Chairman of Ifelodun Local Government Council of Kwara State.

(c) An order of interlocutory injunction staying the purported investigation by the respondents of allegations of maladministration, misconduct and abuse of office made against the 1st plaintiff which the respondents claimed to have referred to the Chief Judge of Kwara State.

In support of the application was an affidavit of 27 paragraphs to which various documents were attached and marked Exhibits A, B, C, C1, C2 and D respectively.

On the 11th of May, 2001, the respondents herein filed their memorandum of appearance to the appellant’s application and gave a Notice of Motion seeking the following relief, inter alia;

“An order of the Honourable Court varying or discharging the exparte orders of injunction made in this suit on the 10th day of May, 2001.”

On the same date, the respondents also gave a Notice Preliminary objection challenging the jurisdiction of the trial court entertaining the suit in the following terms:

1. The Honourable Court has no jurisdiction to entertain the suit by virtue of the provisions of the Kwara State Local Government Law, 1999 especially Section 26 thereof:
2. The action is incompetent as the principal party(ies) Ifelodun Local Government or/and Ifelodun Local Government Legislative Council is (are) not a party (parties) to the action.
3. The action is in the nature of a suit against the Ifelodun Local Government and same is incompetent as the requisite statutory notice of an intention to sue the Local Government has not been given.
4. The action is not maintainable against the present defendants in its present constitution.

The trial court took arguments of counsel on the preliminary objection and on 18th September, 2001 overruled the objection and by consent of both counsel adjourned the hearing of the originating summons of the instant respondents to 9th October, 2001.

Consequently, on 24th October, 2001, the appellants filed their Notice of Appeal against the said ruling of the trial court. In its judgment subject of the instant appeal, the court below allowed the appeal in part for being fundamentally defective for failure to join the Ifelodun Local Government as a necessary party. The case before the trial court was then accordingly struck out leading to the instant appeal to this court predicated on three grounds of appeal filed on 3rd of March, 2003 before the Court below against the decision of 10th December, 2002.