Attorney General Of Kwara State & Anor V. Alhaji (Hon) Ishola Lawal & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

Upon motion ex parte filed by the respondents herein, as Claimants, seeking:

1. AN ORDER granting leave to the Claimants herein to bring this action in a representative capacity, for themselves and on behalf of 9.024 KWARA STATE Government accredited to N1.68billion withheld pensions and gratuity arrears;
2. AN ORDER deeming the originating processes filed in representative capacity properly filed and served the necessary filing fees having been paid;

the Kwara State High Court (Coram: E. B. Mohammed, J.) on 20th October, 2008, finding that the application has merit, granted it as prayed. Leave, accordingly, was granted to the Claimants now the respondents herein, to bring this action against the defendants {appellants herein) in a representative capacity on behalf of themselves and on behalf of 9,024 Kwara State accredited Pensioners entitled to N1.68Billion withheld pensions and gratuities arrears”. The originating summons filed on 2nd September, 2008 was, in terms of the motion ex Parte, “deemed properly filed, the necessary filing fees having been

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paid”.

On 30th October, 2008 the appellants, as defendants, entered a conditional appearance to the suit pursuant to Order 16 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules. It was filed by Mrs. F. I. Lawal, State Counsel. The defence thereafter did nothing further to articulate their defence. On 14th January, 2009, the Claimants through their counsel, T.O.S. Gbadeyan, through then filed a motion for judgment in terms of their claim as contained in the Originating Summons. This prompted the appellants’ application filed on 23rd January, 2009 praying for extension of time within which to file their counter-affidavit in defence of the Originating Summons. The motion was, on 26th January, 2009, moved and granted. The appellants, as the defendants, were then given up to 2nd February, 2009 to file their counter affidavit and Notice of Preliminary Objection. The appellants, in compliance with the said Order of Court, filed two processes namely: the counter-affidavit and the Notice of Preliminary Objection on 2nd February, 2009.

On 19th February, 2009 when the Court reconvened the appellants, through Mr. Akande, Senior State Counsel, withdrew

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the notice of preliminary objection filed on 2nd February, 2009. The appellants had on the said date filed a similar notice of preliminary objection. The appellants filed yet another notice of preliminary objection on 23rd February, 2009. On 3rd March, 2009 the Notice of Preliminary Objection filed on 16th February, 2009 was again withdrawn and struck out.

The Notice of Preliminary Objection filed 3rd March, 2009, was argued on the same date grounds, namely:

“i. That the action was statute barred, and

ii. That the claimants, now the respondents herein, lacked locus standi to bring their action in a representative capacity”

In the reserved Ruling delivered on 1st June, 2009 the learned trial Judge, found inter alia;

“On the whole, I find that the Claimants have not proved or established that they have the authorization or authority of substantial number of the 9.024 Pensioners purportedly represented in this case and by the nature of their claim, this (sic) cannot separate or severe their claim thus the suit cannot ensure in their favour hence the defendants’ Preliminary Objection succeeds and it is hereby sustained”.