Adebimpe Rebecca V. Attorney General Federation & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/1029/2015 delivered by Honourable justice MB Idris on 11th November, 2015, wherein the Court gave judgment against the Appellant.

The material facts of this appeal are that the Appellant acting on the belief that it is the Federal Government of Nigeria, acting through the 3rd Respondent that is empowered to conduct registry marriage throughout the Federal Republic of Nigeria, brought an action via an Originating Summons dated 7th July, 2015, seeking declarations confirming the aforementioned powers.

In response to the above, the 1st Respondent filed a Counter Affidavit and written address dated 2nd September, 2015. The 2nd Respondent also filed a counter affidavit dated 7/8/2015 to the originating summons. He also filed a notice of preliminary objection and a written address dated 28th September 2015. The Preliminary objection is at pages 69 78 of the record.

The 3rd Respondent also filed a counter affidavit and written address dated 28th August, 2015. A

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notice of preliminary objection and written address dated 27th August, 2015 was also filed by the 3rd Respondent (see pages 16 20 of the record).

The processes were filed and exchanged, with the trial Court taking the main matter with the objections. In a judgment dated 9th November, 2015, the Court found that the affidavit in support of the Originating Summons is incompetent for its failure to comply with the provisions of the Oaths Act, with the implication that there was no affidavit validly filed, rendering the suit incompetent. The learned trial Judge consequently struck out the suit.

Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated and filed on 15th December, 2015, with three grounds of appeal.

The Appellants Brief of Argument settled by Olumide Babalola of Olumide Babalola LP was filed on 8th April, 2016. The Reply Brief is dated 17th October, 2016 and filed on 18th October, 2016, but is deemed as properly filed on 24th April, 2017.

Appellants counsel formulated three issues for determination to wit:

1. Whether or not the Appellants constitutional right

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to fair hearing was violated by the trial Court when his lordship struck out the Appellants suit on an issue raised suo motu without affording the Appellant and/or the parties an opportunity to be heard on it? (Ground 1)

2. Whether the trial Court was right in striking out the Appellants suit for not complying with the provisions of 1st schedule of the Oaths Act? (Ground 3)
3. Whether or not the defective affidavit accompanying the Appellants originating summons can be amended? (Ground 2)

On the other hand, the 1st Respondents Brief of Argument settled by Mubarak Egbeyemi of the Federal Ministry of justice, Marina-Lagos, was filed on 10th October, 2016 but deemed properly filed on 24th April, 2017.