MR. Ibrahim O. Sarki & Ors V. Ministry For Chieftaincy Affairs, Kaduna State & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Kaduna State contained in the Ruling delivered by Hon. Justice T. Zailani sitting at Kaduna Division on 27th September, 2011 in Suit No. KDH/KAD/579/2009, commenced by the Appellants as Plaintiffs through the Writ of Summons and Statement of Claim dated 4th August 2009 and 31st July, 2009 respectively for five declaratory reliefs, three orders and a nineth relief for “Such other or further Order(s) or Declaration(s) as the Honourable Court may deem fit and proper to make in the circumstances and in the interest of justice”.

The Respondents as Defendants in that court filed their Memorandum of Appearance and Joint statement of Defence with leave of Court to which the Appellants filed a Reply also with leave of the court. The suit was struck out for non-diligence on the part of the plaintiffs, but was relisted and restored by the court.

The Respondents filed a motion on notice on 3rd August, 2010 praying the Court for the following:-

“1. An ORDER setting down paragraph 21 of the Plaintiffs Statement of Claim and paragraphs 10 and 11 of the Defendants Statement of Defence herein in order that same may be considered and determined forth with without the need of going further into any questions of fact in this action.

2. An ORDER striking out the Plaintiffs/Respondents instant action in their entirety.
3. AND for such further order or other orders on (sic) this Honourable Court may deem fit to make in the circumstances of this case”.

The basis for the application as set out by the applicants are as follows:-

“1. This Honourable Court lacks the jurisdiction to entertain the Plaintiffs’/Respondents action in their entirety as:

(a) No prior notice of intention to institute this action was ever served on the 3rd Defendant/Applicant by Plaintiffs/Respondents as provided by law.

(b) The necessary condition precedent to the filing of the instant proceedings has not been complied with by the Plaintiffs/Respondents.

(c) The subject matter now in issue is vested exclusively within jurisdiction of the National Industrial Court”.

The facts upon which the applicants relied are in the eight Paragraphs Affidavit in Support of the motion to which one J. M. RANDA deposed and filed with the motion on notice while the Applicants Written Address in Support was also filed.

With the order of court enlarging the time following the application of the appellants, they filed their Counter Affidavit of 9 paragraphs on 23/11/10 deposed to by Regina Solomon, the Litigation Secretary in the law firm of their solicitors while the Written Address was also filed.

After listening to the parties in respect of the motion, the learned trial judge in the ruling of 8/2/11 determined the objection only on failure to issue pre-action notice and held on page 338 of the record of appeal as follows:-

“… To institute this suit there is the necessity to give that Pre-Notice (sic) as provided by law.