Mr Debo Kokoorin V. Patigi Local Government (2009)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A. OFR

This is an appeal against the ruling of R. O. Elelu-Habeeb, J. (as she then was) delivered on 26th October, 2006 in which the preliminary objection raised was sustained and the Writ of Summons filed on 28th September, 2005 for a cause of action which arose on 28th of June, 2001 was struck out in its entirety.

Brief antecedents of what culminated in the ruling (supra) are that plaintiff claimed against the defendant as follows:

“1. The sum of N615, 000.00 (sic) (Six Hundred and Fifteen Thousand Naira) only being the cost of the contract executed for the defendant by the plaintiff on 28/6/2001.

2. Interest at the rate of 10% per annum on the judgment sum from the date of judgment until final liquidation.”

Subsequent to the filing of the Writ of Summons, the plaintiff sought and got the leave of the trial Court to place the action on an undefended list on 24th January, 2006.

The defendant on its part sought and got the leave of the Court of first instance to file a notice of its intention to defend the plaintiff’s action on the 5th of April, 2006.

Aside the defendant filing a notice of intention to defend the action, it also filed a notice of preliminary objection seeking the following reliefs:

“1. An order dismissing the claimant/respondent’s claim

2. And for further order(s) as the court may seem just to make.

GROUNDS FOR THE APPLICATION

1. The claimant’s claim is statute barred by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, 1994.
2. That even if the Hon. Court can entertain the claimant’s case, the averments (sic) contained in the supporting affidavit are not sufficient to support the claimant’s claim.”

It is apparent from the proceedings reproduced above that the issue of preliminary objection has been raised by the defendant.

It is trite to state that a Court in which preliminary objection is raised is duty bound to first express in writing whether it agrees with the preliminary objection or not. It is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court. It will amount to unfair hearing to ignore an objection raised by a party or his counsel against any step in the proceedings. See: NWANWATA V. ESUMEI (1998) 8 NWLR (PART 563) 650 AT 666; TAMBCO LEATHER WORKS LTD V. ABBEY (1998) 12 NWLR (PART 579) 548 AT 554; ONYEKWULUJE V. ANIMASAUN (1996) 3 NWLR (PART 439) 637 AT 644; ONYEKWULUNNE V. NDULUE (1997) 7 NWLR (PART 512) 250 AT 279.

The trial Court quite rightly dealt with the defendant’s preliminary objection at the earliest opportunity during the proceedings. It dealt with the said preliminary objection and held, inter alia, as follows:

“Based on the applicable law quoted supra, I am of the view that the case herein is statute barred by the said provisions of Section 178 of the Local Government Law Cap 92 Laws of Kwara State 1994.

This Court therefore lacks the jurisdiction to entertain this action.