Pastor I. F. Olaniyan & Ors V. Mr. E. O. Oyewole & Ors (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an Appeal by the Claimants/Appellants against the ruling of the High Court of Justice, Kwara State, holding at Omu-Aran delivered on 13/6/06 by Honourable Justice M. A. Akoja. The facts that led to this appeal are as follows:

The Plaintiff/Appellants on 28th February, 2006 took out a Writ of Summons pursuant to the Kwara State High Court (Civil Procedure) Rules 2005. Upon the receipt of the originating process by the Defendants/Respondents’. Counsel, a. conditional Memorandum of Appearance was filed for and on behalf of the Defendant/Respondents. Thereafter counsel to the Defendants/Respondents filed a motion on the 4th of April, 2006 asking the court to strike out the Plaintiffs’ suit for lack of competence.The Writ of Summons was served on the Defendants/Respondents on 8/3/2006; the conditional memorandum of Appearance was filed on 13/3/06.

On 2nd May, 2006 the motion was argued by both counsel and ruling reserved. On 13/6/06 the court gave a considered ruling and struck out the suit for being in-competent for non-compliance with the mandatory provisions of the rules of court. Consequent upon this decision the Plaintiff/Appellants filed this appeal. The Appellant’s Counsel identified the following issues for determination;

“(1) Whether it was lawful for His Lordship who was a judge of the Omu-Aran Judicial Division on 2/5/2005 when he took the motion and had been transferred to florin Judicial Division since 1/6/2006 to deliver his Ruling on 13/6/2006 without a Fiat from the Chief Judge of Kwara State? – Ground 1.

(2) Whether the procedure adopted in taking the motion was lawful when the mandatory provisions in Orders 33 and 34 of the Kwara State High Court (Civil Procedure) Rules, 2005, were not applied? – Ground 2.

(3) Whether it was right for the learned trial judge to strike out the suit on the 2 grounds in Grounds 3 and 4 at page 46 of the record? – Grounds 3 & 4.

The Respondents’ counsel also identified three issues for determination. They are stated below:

“(1) Whether the suit filed by the Claimants/Appellants at the lower court was competent as to vest the trial court with jurisdiction.

(2) Whether the Defendants/Respondents application for striking out of the suit was properly before the trial court

(3) Whether it was lawful for the trial judge to deliver the ruling of 13/6/06. ”

To my mind, issue one identified by the Appellants Counsel is the same as issue three of the Respondent’s Counsel. Issue two of the Appellants is the same as issue two of the Respondents. Issue three of the Appellants is the same, as issue one of the Respondents. For the purpose of determining this appeal I will adopt the issues as postulated by the Appellant’s counsel.

Learned Appellants’ counsel argued that the learned trial judge was transferred from Omo-Aran Judicial Division on 1/6/2006, to ilorin Judicial Division. His Lordship took arguments in respect of the motion on 2/5/2006 and delivered his ruling on 13/6/2006. He submitted that the trial Judge acted contrary to S. 72 of the High Court Law of Kwara State. He submitted that without a fiat from the Hon Chief Judge of Kwara State, the trial Judge was wrong to have delivered the ruling on 13/6/2006. In reply learned Respondents’ Counsel argued, that there was nothing on record to show that the learned trial Judge heard the parties but delivered the ruling in another Judicial Division. He submitted that parties are bound by the records of the Court and the Learned Counsel cannot give evidence in his brief of argument. He submitted that even if the learned trial Judge had delivered the judgment after his transfer to Ilorin, the ruling was thereby not rendered a nullity since by virtue of S. 3 (1) & (2) of the Kwara State High Court Law there is only one High Court in the state and in accordance with S. 67 of the same law, the creation of Judicial Divisions was merely for administrative convenience. He also submitted that S. 72 referred to by learned Respondents’ Counsel was inapplicable to this case.

On this issue, I agree with learned Respondents’ Counsel that parties are bound by the records of the court. There is nothing at all on the face of the record to show that at the time the ruling was delivered, the learned trial Judge had been transferred from one Judicial Division to another. This court as an appellate court is bound by the record, of proceedings before it and cannot depart from it on the ipsi dixit of counselor speculation. Sommer v. FHA (1992) 1 NWLR Pt. 219 Pg. 548.Secondly, even if it were so, such an event would not result in the reversal of the ruling of the court. There is only one High Court in Kwara State by virtue of S. 3 (1) & (2) of the High Court Law Cap. 67 Laws of Kwara State which states as follows: