Alhaji Al-mustapha Haruna Jokolo V. Governor Of Kebbi State & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

BABAALKALI BA’ABA, J.C.A.

This is an appeal against the Ruling of the Kebbi State High Court, sitting at Birnin Kebbi, presided over by Hon. Justice I.B. Mairiga of the Kebbi State High Court of Justice delivered on the 20th day of April, 2006, wherein the court sustained the preliminary objection filed by the respondents on the 5th day of October, 2005 consequently struck out the appellant’s suit No. KB/HC/14/2005.

The appellant, as plaintiff, instituted the action at the Kebbi State High Court against the respondents as defendants jointly and severally. The background facts leading to this appeal as contained in the record of proceedings briefly are as follows: The appellant who was the plaintiff before the trial court, was installed as the 19th Emir of Gwandu, sometimes in 1995 and remained on the throne until Friday, the 3rd day of June, 2005. The 1st respondent/defendant, is the Executive Governor of Kebbi State while the 2nd respondent/ defendant is the Chief Law Officer of the Government of Kebbi State of Nigeria. The 3rd and 4th respondents/ defendants are the bodies charged with the responsibility of approving the selection of the Emir of Gwandu, upon the recommendation made to them by the King makers of Gwandu Emirate. While the 5th – 13th respondents/defendants are the king makers within Gwandu Emirate and are responsible for the nomination, selection and installation of the Emir of Gwandu. According to the appellant/plaintiff, the 14th respondent/defendant Alhaji Muhammed Jega, is the person purportedly nominated and selected as the 20th Emir of Gwandu by the 5th – 13th respondents/defendants who are the kingmakers within Gwandu Emirate.

The 3rd and 4th respondents/ defendants are the statutory bodies charged with the responsibility of controlling, disciplining and superintending Traditional Rulers within Kebbi State. The appellant, Alhaji Al-Mustapha Haruna Jokolo, averred that he did not know the charges against him nor was he informed as to who his accusers were and that he was never given an opportunity of defending himself in respect of the charge or charges levelled against him before his deposition from office as the Emir of Gwandu.

“WHERE FOR the plaintiff claims against the defendants jointly and severally as follows:

1. A Declaration that the purported Order made and signed by the 1st Defendant on Friday the 3rd day of June, 2005 pursuant to the provisions of the Chiefs (Appointment and Deposition) Law Cap 21 Laws of Kebbi State 1996 is irregular, illegal, unconstitutional, null and void and of no effect whatsoever in that:

(a) The purported Order was not made in accordance with the provisions of the Chiefs (Appointment and Deposition) Law of Kebbi State 1996.

(b) The 1st Defendant made the Order in violation of the provisions of the. Law and the Constitution of the Federal Republic of Nigeria 1999.

(b) The Order conflicts with and abrogates the vested rights of the Plaintiff without compliance with the provisions of the Chiefs/Appointment and Deposition Law Cap 21 of KEBBI STATE 1996.

2. A Declaration that the ‘purported deposition of the Plaintiff by the 1st Defendant is in breach of the provisions of the rules of natural justice and a violation of the provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 in that at no time did the 1st Defendant conduct due inquiry into the allegations made by him against the Plaintiff nor did he offer the Plaintiff any opportunity of stating his defence to the allegations made against him.
3. An injunction restraining the 3rd to the 13th Defendants from acting in pursuance of the purported dethronement of the Plaintiff by the 1st Defendant and to set aside the appointment, installation of the 14th Defendant to the throne of the Emir of Gwandu and or presenting to the 14th Defendant with the staff of office until the purported removal of the Plaintiff from the throne by the 1st Defendant on Friday 3rd of June, 2005 is determined by this Honourable Court.
4. A Declaration that the purported process of nominating recommending and forwarding the name of the 14th Defendant by the 3rd to the 13th Defendants to the 1st Defendant and subsequent declaration of the 14th Defendant as the new Emir of Gwandu by the 1st Defendant is null, void and of no effect whatsoever.
5. A Declaration that the Plaintiff ALHAJI ALMUSTAPHA JOKOLO is still the Emir of Gwandu and is entitled to all rights and privileges pertaining thereto.
6. An Order setting aside the Order made by the 1st Defendant on Friday the 3rd day of June, 2005 titled Appointment and Deposition of Chiefs (Deposition of Emir of Gwandu) Order 2005 and all the processes conducted pursuant to that Order, including the meeting of the Kingmakers purportedly held for the selection and appointment of the 14th Defendant as the Emir of Gwandu.
7. An Order of perpetual injunction restraining the 1st, 2nd, 3rd and 4th Defendants either by themselves, agents, privies, servants or through any person or persons howsoever from treating, presenting or dealing with or installing the 14th Defendant as the Emir of Gwandu.
8. An Order of perpetual injunction restraining the 14th Defendant from parading, presenting or styling himself as the Emir of Gwandu or from putting on or wearing any paraphernalia or insignia of the Emir of Gwandu.
9. An Order of perpetual injunction restraining the 5th to 13th Defendants from dealing with treating, presenting, or dealing with or installing the 14th Defendant as the Emir of Gwandu or Landing over to him the staff of office of the Emir of Gwandu.”

On the 4th day of April, 2006, four matters were listed for hearing before the trial court among which was the appellant’s application for amendment as well as the appellant’s application for injunction praying the court for an order to restrain the respondents from taking step to organize the coronation of the 13th respondent/defendant as the new Emir of Gwandu. See pages 14 – 110 of the printed record. The appellant’s counsel applied for the two appellant’s application to be taken first but the respondents’ counsel stated that since the notice of preliminary objection was challenging the jurisdiction of the court, the trial court, is estopped from making any order unless and until the issue of jurisdiction was resolved. The learned trial judge agreed with the position of the learned counsel for the respondents and ruled that the hearing of the preliminary objection of the respondents dated and filed on the 5th day of October, 2005, was the appropriate step forward. The preliminary objection was then taken and the learned trial judge upheld the objection in his ruling dated the 26th day of October, 2005 contained at pages 28 – 54 of the record. At page 41 of the printed record the trial court inter alia held:

“Having said that, I am of the considered view that the 4th defendant by the provisions of section 114 of the Local Government Law is entitled to pre-action notice in terms specified by section 114(2). The fact that this notice has not been issued is not disputed by the plaintiff – there is no averment to the effect that notice has been issued and served in the plaintiff’s statement of claim.

Pre-action notice where it is statutorily required is a condition precedent to the institution of an action. In the case of FAYEMI V. L.G.S.C. OYO STATE (2005) ALL FWLR PT.254 page 901 at 915, it was held that “the place of pre-action notice in our civil procedure is foundational ……………. and goes to the root of what will validate an action and enable the Court to exercise jurisdiction whenever such notice is necessary.”

On the ground of objection on the abuse of the court process, the learned trial Judge at page 54 further held:

“It is the duty of the court under such situation to interfere to stop the abuse See OKAFOR V. A.G: ANAMBRA STATE (1991) 6 NWLR 659 and OKORODUDU V. OKOROMADU (1977) 3 S.C

As the instant suit was filed on the 28/08/05, it constitutes an abuse of the process of the suit filed by the Respondent/ Plaintiff before the Federal High Court Kaduna on the 22/08/05. This ground of objection also has merit and it is allowed.”

The genesis of this appeal is the ruling of the learned trial judge on the preliminary objection filed on behalf of the defendants/applicants/respondents contained at page 61 – 63 of the printed record which reads as follows:

“TAKE NOTICE that the Defendants/Applicants shall at the hearing of this suit raise a preliminary objection to the jurisdiction of this Honourable Court to hear this suit, as constituted and urge this honourable Court to dismiss the suit in its entirety.

TAKE FURTHER NOTICE that the grounds upon which the said preliminary objection is brought are as follows:-

(a) The suit does not disclose any reasonable cause of action against the Defendants.

(b) The suit as presently constituted is incompetent and is a blatant abuse of Court process.

(c) The issues put forward for determination by the Plaintiff/Respondent in the instant suit are substantially the same as the issues raised in Suit No:

(i) FHC/KD/CS/32/2005 ALHAJI AL-MUSTAPHA HARUNA JOKOLO

AND

ATTORNEY-GENERAL, KEBBI STATE & 2 ORS.

(d) The parties in Suits Nos. FHC/KD/SC/32/2005 are substantially the same as in the instant suit.

(e) The Suit is incompetent as no notice of intention to commence this Suit has been served on the 4th Defendant/ Applicant as require under section 114 of Kebbi State Local Government Law, 2000.

TAKE FURTHER NOTICE that at the hearing of the preliminary objection the Defendants/ Applicants will rely on all the processes before this Honourable Court.”

The motion was supported by an eight paragraph affidavit, deposed to by one Sanusi Illo, Director of Public Prosecution of Kebbi State. Paragraphs 2, 3, 4, 5, 6, 7 and 8 are as follows:

“2. That by virtue of my position I am conversant with the facts and circumstances of this suit.

3. That I have the consent and authority of the Defendants/Applicants and my employer to depose to this affidavit in support.
4. That I depose to this affidavit from facts within my personal knowledge except where otherwise stated.
5. That I know that the Plaintiff/ Applicant herein has filed another suit which is

FHC/KD/CS/32/2005

ALHAJI AL-MUSTAPHAHARUNA

JOKOLO

AND

ATTORNEY-GENERAL, KEBBI STATE & 2 ORS.

Certified True Copies of the originating processes in the said suit is hereby attached and marked Exhibit A.

6. That I have been informed by Olusegun Jolaawo, Esq. of counsel to the Defendant/Applicants in his office at about 2.00p.m. on September 20, 2005 of the following facts which I believe to be true:

(a) That the filing of this instant suit is a blatant abuse of the process of this Honourable Court.

(b) That the plaintiff does not have the right to litigate in piece meal.

(c) That this suit is intended to embarrass the defendants.

(d) That this suit and the other suit referred to in paragraph 5 above are between the same parties and or their privies and that the same issues fall for determination in all the cases.

(e) That it is in the interest of justice to dismiss this suit.

7. That I know that it is in the interest of justice to grant the application sought herein.
8. That I swear to this affidavit in good faith and believing the contents to be true and correct in accordance with the Oaths law.”

A counter-affidavit was filed on behalf of the appellant/respondent at page 93 – 99 deposed to by one Calister Anyadike, Litigation Officer in the Law Firm of A.A. Malami &. Co, the Solicitors to the appellant/reslpondent:

“2. That I have the consent and authority of the Respondent and my employers to depose to this counter affidavit of facts within my knowledge and those derived by me in the course of my employment, the veracity of which I sincerely do not doubt.

3. That I have in addition to my knowledge and information aforesaid, been further informed by Abdurrahman Mukhtar Abdullahi Esq,a counsel in the law firm of Messrs A.A. Malami & Co. in our office at No. 107 IBB Way, Kano on Wednesday the 1st day of February, 2006 at around 6p.m and I verily believe him to be true and correct as follows:

a. That the Respondent in this matter had in challenging his deposition as the 19th Emir of Gwandu instituted an action before Kebbi State High Court of Justice in Suit No.KB/HC/14/2005.

b. That the composition of the parties in suit No.KB/HC/14/2005 is as follows:

ALHAJI AL-MUSTAPHA HARUNA JOKOLO PLAINTIFF

AND

1. GOVERNOR OF KEBBI STATE
2. HON. ATTORNEY GENERAL OF KEBBI STATE
3. KEBBI STATE COUNCIL OF CHIEFS
4. GWANDU EMIRATE COUNCIL
5. ALHAJI ABDULLAHI BAYERO MAGAJI RAFIN GWANDU
6. ALHAJI MUHAMMADU MODI MAGAJIN GARI
7. ALHAJI MUHAMMEDWANKA SARKIN ILLO
8. ALHAJI MAINASARA ZAGGA SARKIN ZAGGA
9. ALHAJI MOHAMMED SALIHU SARKIN ALEIRO
10. ALHAJI UMAR BI-MALLAM WALIN GWANDU DEFENDANTS

11 ALHAJI AHMADU DUDU BASHIR GALADIMA BABBA

12. ALHAJI AHMADU SARKIN FADA
13. ALHAJI MUHAMMED JEGA

c. That the Respondent had equally instituted an action in suit No. FHC/KD/CS/32/2005 before Federal High Court Kaduna Challenging his banishment and the composition of the parties in the said suit is as follows:

ALHAJI AL-MUSTAPHA HARUNAJOKOLO PLAINTIFF

AND

1. ATTORNEY-GENERALKEBBI STATE
2. DIRECTOR-GENRAL STATE SECURITY SERVICE DEFENDANTS
3. INSPECTOR-GENERAL OF POLICE

d. That the reliefs sought by the Respondent in this suit are as follows:

WHEREOF the Plaintiff claims against the Defendants jointly and severally as follows:

1. A declaration that the purported order made and signed by the 1st Defendant on Friday the 3rd day of June, 2005 pursuant to the provisions of the Chiefs (Appointment and deposition) Law Cap 21 Laws of Kebbi State 1996 is irregular, illegal, unconstitutional, null and void and of no effect whatsoever in that:

a. The purported order was not made in accordance with the provisions of the Chiefs (Appointment and deposition) Law of the Kebbi State 1996.

b. The 1st Defendant made the order in violation of the provisions of the law and the Constitution of the Federal Republic of Nigeria 1999.

c. The Order conflicts with and abrogates the vested rights of plaintiff without compliance with the provisions of the Chiefs/Appointment and Deposition Law Cap 21 KEBBI STATE 1996.

1. A declaration that the purported deposition of the plaintiff by the 1st Defendant is in breach of the Provisions of the rules of natural justice and a violation of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 in that at no time did the 1st Defendant Conduct due inquiry into the allegations made by him against the plaintiff nor did he offer the Plaintiff any opportunity of stating his defence to the allegations made against him.
2. An injunction restraining the 3rd to the 13th Defendants from acting in pursuance of the purported dethronement of the plaintiff by the 1st Defendant and to set aside the appointment, installation of the 14th Defendant to the throne of the Emir of Gwandu or presenting to the 14th Defendant with the staff of office until the purported removal of the plaintiff from the throne by the 1st Defendant on, Friday 3rd of June, 2005 is determined by this Honourable Court.
3. A declaration that the purported process of nominating, recommending and forwarding the name of the 14th Defendant by the 3rd to the 13th Defendant to the 4th Defendant and subsequent declaration of the 14th Defendants as the new Emir of Gwandu by the 1st Defendant is null, void and of no effect.
4. A declaration that the plaintiff ALHAJI AL-MUSTAPHA JOKOLO is still the Emir of Gwandu and is entitled to all rights and privileges pertaining thereto.
5. An order setting aside order made By the 1st Defendant on Friday the 3rd day of June, 2005 titled Appointment and Disposition of Chiefs (Deposition of Emir of Gwandu) Order 005 and all the processes conducted pursuant to that order, including the meeting of the kingmakers purportedly held for the selection and appointment of the 14th Defendant as the Emir of Gwandu.
6. An order of perpetual injunction restraining the 1st, 2nd 3rd and 4th Defendants either by themselves, agents, privies, servants or through any person or persons howsoever from treating, presenting or dealing with or installing the 14th Defendant as the Emir of Gwandu.
7. An order of perpetual injunction restraining the 14th Defendant from parading, presenting or styling himself as the Emir of Gwandu or from putting on or wearing any paraphernalia or insignia of the Emir of Gwandu.
8. An order of perpetual injunction Restraining the 5th to 13th Defendant from dealing with treating, presenting, or dealing with or installing the 14th Defendant as the Emir of Gwandu or handing over to him the staff of office of the Emir of Gwandu. The Respondent will at the hearing rely on the writ and all other Court process filed before this honourable Court.

e. That the reliefs sought by the Respondent in suit No. FHC/KD/C5/32/2005 instituted before Federal High Court are as follows:

1. A declaration that the Ex-Traditional Office Holders Removal Law Cap 99 Law of Kebbi State of Nigeria is in inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 wherever such similar law exist including Nasarawa State and consequently null, void and of no effect.
2. A declaration that the 1st Defendant has no legal power and or authority to banish the plaintiff or anyone pursuant to the provisions of the Ex-traditional office holders removal law Cap.49 Law of Kebbi State within or outside Kebbi State.
3. A declaration that the continued detention of the plaintiff in Nasarawa State or anywhere else thereof tantamount to an illegal arrest; unlawful detention and false imprisonment.
4. An order forthwith for the unconditional release of the plaintiff from detention whatsoever called.
5. An order of perpetual injunction restraining all the Defendants, their agents, privies or representatives directly or indirectly from further act of infringing the plaintiff’s right.
6. An order for the payment of Fifty Million Naira (50,000,000.00) only as compensation and damages to the plaintiff by all the Defendants jointly and severally.

f. That the parties, reliefs issues and cause of action in the two respective suits are different and distinct.

4. That I was further informed by Abdurrahman Mukhtar Abdullahi Esq. of counsel on the 29th day of October, 2006 in my office at the same place, time and circumstances as in paragraph 3 above and I verily believe him as follows:

a. That suit No. FHC/KD/C5/32/2005 filed before Federal High Court Kaduna has been discontinued. A copy of notice of discontinuance filed on the 28th day of October, 2006 has been shown to me and attached as Exhibit A.

b. That the Respondent has before now also filed an action for leave to enforce his fundamental right before this honourable Court in suit No.KB/HC/M/85/2005.

c. That the application for leave was heard, determined and refused by this honourable Court. A ruling of this honourable Court by which the application was refused is shown to me and attached hereto as Exhibit B.

d. That the Respondent’s suit in respect of which this preliminary objection relates is not instituted against any Local Government or Local Council.

e. That this suit is not an abuse of court process.

f. That the Applicant will not be embarrassed by the suits of the Respondent.

5. That it is in the interest of justice to sustain this suit.
6. That I Calister Anyadike swears to this affidavit sincerely believing the facts deposed to herein by me to be true and correct to the best of my knowledge, information and belief.”

A further affidavit was also deposed to by the same deponent of the affidavit in support, containing nine paragraphs as follows:

“1. That I am the Director of Public Prosecution in the Kebbi State Ministry of Justice.

2. That by virtue of my position I am conversant with the facts and circumstances of this suit.
3. That I have the consent and authority of the Defendants/Applicants to depose to this further affidavit in support.
4. That we had earlier on filed a notice of preliminary objection and an affidavit in support thereof dated 5th October, 2005.
5. That in paragraph 5 of the affidavit in support of our notice of preliminary objection dated 5th October, 2005. We stated that we attached certified true copies of the originating processes in suit No: FHC/KD/CS/32/2005.

ALHAJI AL-MUSTAPHA HARUNA JOKOLO

AND

ATTORNEY-GENERAL, KEBBI STATE & 2 ORS as an Exhibit.

6. That the copies of the said processes attached were however not certified.
7. That the Certified True Copies of the originating processes in suit No: FHC/KD/CS/32/2005.

ALHAJI AL-MUSTAPHAHARUNAJOKOLO

AND

ATTORNEY-GENERAL, KEBBI STATE & 2 ORS

have new been obtained and are hereby attached to this affidavit and marked Exhibit AA.

8. That I also know as a fact that no notice of intention to commence the instant suit was served on the Defendants herein prior to the institution of the said suit.
9. That I swear to this affidavit in good faith and believing the contents to be true and correct in accordance with the Oath law.”

Dissatisfied with the ruling of the trial court dated 20/4/2006 striking out the suit instituted by the appellant/plaintiff, the appellant, appealed to this Court by his notice of appeal dated 22/6/06 filed on 23/6/2006 containing four grounds of appeal to be found at pages 141 – 145 of the record.

In compliance with the rules of practice and procedure of this Court, briefs of argument were filed and exchanged between the counsel to the parties in this appeal.

When the appeal came up for hearing on the 18th day of January, 2009 counsel to the parties adopted their respective briefs but did not advance any oral argument.

Learned counsel for the appellant in the appellant’s brief formulated three issues for determination in this appeal at page 7 of the appellant’s brief as follows:

“(1) Whether the Respondents as constituted in the suit before the trial High Court are entitled to pre-action notice regard being had to the provisions of Section 114(1) of the Local Government Law 2000 of Kebbi State and the nature and effect of the relieves sought by appellant before the trial High Court.

(2) Whether the inclusion of the 5th – 13th respondents as parties to the suit can affect the competence of the appellant’s suit before the trial court and render it liable to be struck out regard being had to the provisions of Order 11 Rule 3 of Kebbi State High Court Civil Procedure Rules.

(3) Whether the appellant’s suit giving rise to this appeal constitute an abuse of the process of the suit filed by appellant before Federal High Court Kaduna on 22nd day of August, 2005.”

The learned counsel for the respondents on the other hand formulated two issues for determination in this appeal at page 5 of the respondents’ brief as follows:

“1. Whether the appellant’s suit No. KB/HC/14/2005 was properly constituted having regard to the absence of pre-action notice on the 4th respondent and the joinder of the 5th – 13th respondents as parties in the said suit No. KB/HC/14/2005.

2. Whether the appellant’s suit No. KB/HC/14/2005 constituted an abuse of process of court having regard to the pendency of suit No. FHC/KD/CS/32/2005 at the Federal High Court Kaduna.”

I adopt the three issues formulated by the appellant for the determination of this appeal.

Arguing issue No.1 in the appellant’s brief dated and filed on 10/8/2006, learned counsel for the appellant, first referred to the ruling appealed against and submitted that the learned trial Judge was in error in coming to the conclusion that the 4th respondent was entitled to a pre-action notice in terms specified by Section 114(2) of the Kebbi State Local Government Law 2000. He reproduced the provisions of Section 114 of the Local Government Law of Kebbi state at page 15 of the appellant’s brief, listing all the Local Government Areas in Kebbi State as established by the Local Government Law, 2000. Learned counsel contended that none of the Local Government Areas of Kebbi State listed was a party and posed a question as to whether the issuance of a pre-action notice was necessary in view of the fact that none of the Local Government Areas listed in the 1st column of the 1st Schedule to the Local Government Law, 2000 was a party in the suit.

It is submitted by the learned counsel for the appellant that pre-action notice is only required by the Local Government Law, 2000, to be a condition precedent to the institution of an action where a Local Government Area as listed in the 1st column of the 1st Schedule is intended to be a party to an action.

It is argued that any institution, parastatal or organ of the Government other than the Local Government listed in the 1st column of the 1st Schedule does not qualify and therefore not entitled to a one month written notice as provided by Section 114 of the Local Government Law, 2000.

Pointing out that the position of the law relating to the interpretation of a statutes has long been settled in plethora of authorities to the effect that where the words of the provisions of a statute are clear and unambiguous, they should be given their plain, ordinary and grammatical meaning without qualification. See AMADI V. N.N.P.C. (2000) VOL. 2 PT.11 SCNQLR 991, ADESONYE V. ADEWOLE (2000) VOL.2 PT.11 SCNQLR 839.

Relying on the authority of IMAH V. OKOGBE (1993) 12 SCNJ 71, he further emphasized that the plain words must be given their clear meaning as a court has no power to import into the meaning of a statute something not in it, hence Gwandu Emirate Council not having been contemplated by the express provision of the Local Government Law 2000 cannot be imported into the provisions of the said law.

Learned counsel for the appellant referred to Sections 74 and 75 of the Local Government Law, 2000 which established the Emirate Councils in Kebbi State including Gwandu Emirate Council. It is further argued that by the provisions of Section 75(1) of the Local Government Law, 2000, the Emirate Council set up shall be a body corporate by name designated in the 1st column of the 1st Schedule and shall have perpetual succession and common seal and power to hold land, to sue and be sued.

In conclusion, learned counsel for the appellant urged the court to allow the appeal on his issue No.1.

On issue No.2, learned counsel for the appellant referred to the ruling of the trial court at pages 46 – 47 of the printed record where the trial Judge held that the 5th – 13th defendants/respondents are not necessary parties before the question or questions in the suit can be completely and effectively be settled. Reference was made to the provisions of Order 11 Rule 3 of the Kebbi State High Court (Civil Procedure) Rules, 1996.

It is the humble submission of the learned counsel for the appellant that it is not necessary to amend the composition of the parties even where any of the parties is found to have been wrongly joined or made a party hence the composition of the parties, to an action cannot be a ground for striking out an action for being incompetent. He further submitted that the law relating to the desirable parties to a proceedings has long been settled in numerous cases such as IN RE OMIDIJI (2001) FWLR PT.35 page 747, as an authority that persons who may be joined as parties to a suit, have also been categorized as necessary parties, desirable parties, and proper parties, includes those whose presence before the court is necessary or will be necessary to enable the court to properly and effectively determine the matter before it once and for all.

That the question to be determined is whether the presence of the 5th – 13th respondents before the court is necessary or will be necessary to enable the court properly and effectively determine the matter before it. Learned counsel for the appellant answered the question posed by him that having regard to reliefs 4 and 6 reproduced in the appellant’s brief, the presence of the 5th – 13th respondents before the trial court is necessary to enable it properly and effectively determine the matter before it. He also urged the court to allow the appeal on his issue, No.2.

On issue No.3 as to whether the appellant’s suit giving rise to this appeal constitutes an abuse of the process of the suit filed by the appellant before the Federal High Court, Kaduna on 22/8/05, the issue was distilled from ground of appeal No.4 of the notice of appeal contained at pages 141 – 145, learned counsel for the appellant, pointing out that by grounds (b) and (d) of the preliminary objection, the respondents contended that the suit as presently instituted is incompetent and a blatant abuse of court process as the parties in suit No. FHC/KD/CS/32/2005 are absolutely the same as in the suit KB/HC/14/2005 before the Kebbi State High Court. The grounds of the objection are contained at page 62 of the printed record.

Learned counsel for the appellant stated that in response to the preliminary objection, the appellant filed a counter-affidavit dated 6/3/06 contained at pages 93 – 111 of the printed record in answer to the affidavit in support.

It is submitted by the learned counsel for the appellant that an abuse cannot be said to have been occasioned in the valid exercise of a constitutional right as the parties and subject matter in relation to the two suits are not the same. Relying on the authority of SARAKI V. KOTOYE (1992) 9 NWLR (PT.264) 154, learned counsel for appellant further submitted that the learned trial judge misconceived the application of the two suits relating to the principle of abuse of court process. Reference was made to pages 29 and 30 of the appellant’s brief, reproducing the parties in suits No. FHC/CS/32/08 and KB/HC/14/05. Learned counsel for the appellant stressed that the parties in the two respective suits are not the same as erroneously held by the learned trial Judge. The reliefs being sought by the appellant in suits No. KB/HC/14/05 and FHC/CS/32/05 reproduced at pages 31 – 35 of the appellant’s brief are equally not the same, as the subject matter of the two respective suits are different hence the question of abuse of the court process does not arise at all.

Concluding his submission on his three issues, learned counsel for the appellant urged the court to allow the appeal and set aside the ruling of the learned trial Judge.

Responding to the submissions of the learned counsel for the appellant, learned counsel for the respondents stated that it is common ground amongst the parties to this appeal that the appellant did not serve on the 4th respondent any pre-action notice as required by Section 114 of the Local Government Law of Kebbi State, 2000 reproduced by the learned counsel for the respondents at page 6 of the respondents’ brief.

He stated that the pertinent question to be resolved is whether the 4th respondent, Gwandu Emirate Council, qualifies as a Local Government to be entitled to the provisions of Section 114(1) of the Local Government Law of Kebbi State, 2000. Learned counsel for the respondents submitted that although the 4th respondent/defendant is by the provisions of Section 75(1) of the Local Government Law 2000 of Kebbi State, is a body corporate and therefore a legal entity, nonetheless, it is one of the agencies or instrument through which the relevant Local Government operates and therefore part and parcel of the Local Government hence subject to the protection provided to the Local Government by the enabling statutes including the provisions of section 114 of the Local Government Law which provides for the pre-action notice to be issued and served on it by any intending plaintiff. According to the learned counsel for the respondents the failure of the appellant to comply with the provisions of section 114(1) of the Local Government Law, 2000 of Kebbi State by not issuing and effectively serving the pre-action notice on the 4th defendant/respondent renders the suit against the 4th respondent/defendant incompetent and liable to be struck out on the application of the 4th respondent/defendant. Reference was made to the case of BABALOLA V. OSOGBO L.G. (2003) 10 NWLR (PT. 829) 465 at 486 Paragraphs C – E, where the Court of Appeal, while interpreting the provisions of Section 173(1) of the Local Government Law Cap 66, Laws of Oyo State, applicable in Osun State, which is in pari materia with Section 114(1) of the Local Government Law, 2000 of Kebbi State under consideration in this appeal held that the failure to issue and serve the pre-action notice robbed the lower court of the competence to entertain the action. See also the case of N.N.P.C. VS. TIJANI (2006) 17 NWLR (PT.1007) 29 at 44 – 45 Paragraph H – C.

It is therefore contended by the learned counsel for the respondents that the learned trial Judge was perfectly right in striking out the suit for the failure of the. appellant/plaintiff to comply with the condition precedent to the commencement of the action at the trial court. According to the learned counsel for the respondents, the learned counsel for the appellant was with respect wrong in law to submit that because the claim against the respondents borders on reliefs seeking for nullification of the action of the respondents, that pre-action notice does not apply.

It is also argued that the 5th – 13th respondents are not necessary parties to the suit at the trial court. In conclusion, learned counsel for respondents urged the court to resolve issue No.1 in the negative to the effect that the suit of the appellant was not properly constituted at the trial court having regard to the absence of a pre-action notice and the joinder of the 5th – 13th respondents as parties.

On whether the appellant’s suit No. KB/HC/K/2005, constituted an abuse of the process of the court having regard to the pendency of suit No. FHC/CS/32/2005 at the Federal High Court, Kaduna, learned counsel for the respondents stated that the appellant by way of an originating summons, initiated an action at the Federal High Court, Kaduna Judicial Division on 22/8/05 and referred to pages 69 – 92 of the printed record. That the appellant also equally filed another suit No. KB/HC/14/2005 at the Kebbi State High Court of Justice on the 29th day of August, 2005. He referred to pages 55 – 60 of the printed record.

Learned counsel for the respondents then posed a question as to whether the filing of the two matters under reference does not amount to an abuse of the process of the court? In an apparent attempt to answer the question, he placed reliance on the case of OGO EJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT.966) 205 at 220 Paragraphs C – G where the Supreme Court held on what constitutes an abuse of the process of court to include a multiplicity of action on the same subject matter against the same opponents on the same issue.

According to the learned counsel for the respondents going by the nature of the two suits filed by appellant at both the Federal High Court and Kebbi State High Court, it is very clear that the intention of the appellant is to embarrass and annoy the respondents; consequently it constitutes an abuse of process of court.

He conceded that the case at the Federal High Court does not include the 2nd – 13th respondents/defendants in the case before the Kebbi State High Court but argued that the 2nd – 13th respondents are privies of the 1st defendant/respondent hence the inclusion of the 1st defendant/1st respondent, is tantamount to the inclusion of the 2nd – 13th respondents/defendants before the Federal High Court.

Reference was made to the ruling of the learned trial Judge contained at pages 53 of the printed record and it is submitted by the learned counsel for the respondents that the trial court was right in holding that there was an abuse of the court process and urged the court to so hold.

In conclusion, learned counsel for the respondents urged the court to dismiss the appeal.

The main issue in contention between the counsel to the parties on issue No.1 formulated by the learned counsel for the appellant is the correct interpretation of the provisions of Section 114(1) of the Kebbi State Law (2000). It is contended by the learned counsel for the appellant that the said provision relied upon by the learned trial Judge, of Kebbi State does not apply to the instant appeal in that the 4th respondent, the Gwandu Emirate Council not being a Local Government and not having been listed in the 1st column of the 1st Schedule to the Local Government Law of Kebbi State is not by law entitled to a pre-action notice as provided by Section 114(1) of the Local Government Law of Kebbi State 2000. In support of his submission learned counsel for the appellant relied on Section 75(1) of Local Government Law of Kebbi State, 2000, which provides that the 4th respondent, Gwandu Emirate Council is a body corporate and therefore a legal entity, which is separate and distinct from the Local Government. He placed reliance on the authority of IMAH VS. OKOGBE (1993) 12 SCNJ 71, a decision of Supreme Court on the authority to the effect that plain words must be given their plain meaning. Contrary to the submission of the learned counsel for the appellant, the learned counsel for the respondents, is of the view that the 4th respondent, Gwandu Emirate Council, being an agency of the Local Government is entitled going by the provisions of Section 114 of the Local Government Law of Kebbi State to a pre-action notice and the failure to give the said pre-action notice renders the suit incompetent.

According to the learned counsel for the respondents, the trial Judge of Kebbi State High Court was perfectly right in striking out the suit for non-compliance with the provision of Section 114(1) of the Local Government Law, 2000.

Section 114(1) of the Local Government Law of Kebbi State, the subject matter in contention on issue No.1 formulated by the appellant provides as follows:

“114(1). No suit shall be commenced against a Local Government until after one month written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent.” (underline mine)

Section 75(1) of the same Local Government Law reads:

“75(1). The Emirate Council set up under this part shall be a body corporate by the name designated in the 1st column of the schedule and shall have perpetual succession and a common seal and power to sue and be sued.”

It is settled law that it is both elementary and also fundamental principle of interpretation of statutes that where the words of statutes are plain, clear and unambiguous, they should be given their ordinary and natural meaning except where to do so will result in absurdity. See SHELL PETROLEUM DEV. CO. (NIG) VS. F.B.I.R (1996) 8 NWLR (PT.466) 256; OLADOKUN VS. MILITARY GOVERNOR OF OYO (1996) 8 NWLR (PT.467) 387 at 419 – 422.

It is also good law that as a general rule of construction of statutes that a court is not entitled to read into a statute words which are excluded expressly or impliedly from it. See ATTORNEY GENERAL ONDO VS. ATTORNEY GENERAL EKITI STATE (2001) 17 NWLR (PT.743) 706 at 767, where at page 767, Karibi-Whyte, J.S.C, observed that:

“It is a well established and cardinal principle of interpretation that where the ordinary plain meaning of the words used in a provisions are clear and unambiguous, effect must be given to words without resorting to any extrinsic aid. See AWOLOWO VS. SHAGARI (1979) 6 – 9 S.C. 73, LAWAL VS. G. OLLIVANT (1972) 3 S.C. 129. The solemn and sacred duty of Court is to interpret words used in the section by the legislation and give to them their intended meaning and effect.”

See ADEJUMO V. GOVERNOR OF LAGOS STATE (1972) 3 S.C. 45 and ATTORNEY GENERAL OF OGUN STATE V. ATTORNEY GENERAL OF THE FEDERATION (1982) 1 – 2 S.C. 13.

The position of law regarding the issuance of pre-action notice in compliance with the provisions of Section 114 of the Local Government Law of Kebbi State as argued by the learned counsel for the respondents who relied on the case of BABALOLA V. OSOGBO LOCAL GOVERNMENT (2003) 10 NWLR (PT.829) 465 at 485, is the correct position of the law and failure to issue the pre-action notice renders the suit defective. There is however a clear distinction between the case of OSOGBO (SUPRA) where Local Government was a party while in the instant appeal, Local Government was not a party, as the 4th respondent, is Gwandu Emirate Council, a body corporate distinct from the Local Government as provided by Section 75(1), pre-action notice is inapplicable.

In view of what has been stated above, I agree with the learned counsel for the appellant that the 4th respondent is not entitled to be issued with a pre-action notice going by the provisions of Section 114 of the Local Government Law of Kebbi State, 2000. Issue No.1 is therefore resolved in the negative in favour of the appellant as the 4th respondent is not entitled to a pre-action notice.

The second issue argued in the appellants brief is the striking out of the suit by the learned trial Judge on the ground that some of the parties are not necessary parties.

A necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. See UKU V. OKUMAGBA (1974) 3 S.C. 35 and AWANI &. ORS V. EKEJUWAU & ORS (1976) 11 S.C. 307 and OBILASO ANABARONYE &. 3 ORS V. NELSON NWAKAIHE (1997) 1 NWLR (PT.482) 374 at 381.

It was held in BABAYEJO V. ASHAMU (1998) 9 NWLR (PT.567) 546 at 557 that even if the seven persons were necessary parties their non-joinder will not defeat the action.

Order 11 rule 3 of the High Court (Civil Procedure) Rules, 1996 of the Kebbi State High Court provides:

“Order 11(3) All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. And judgments may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.”

If the learned trial Judge had addressed his mind to the provisions of Order 11 rule 3 of the High Court (Civil Procedure) Rule, 1996, of Kebbi State he would not have struck out the suit on ground of either necessary or unnecessary parties. I therefore resolved issue No.2 in favour of the appellant.

The third issue formulated by the learned counsel for the appellant relates to abuse of the process of court, another ground relied upon by the learned trial Judge in striking out the suit. The learned counsel for the appellant at page 28 – 30 of the appellant’s brief clearly enumerated the parties and the subject matter in the two suits.

The terms abuse of court process and abuse of judicial process are one and the same thing. Abuse of court process simply means that the process of court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the improper irritation and annoyance of his opponent and efficient and effective administration of justice. See the case of EXPO LTD VS. PASFAB ENTERPRISES LTD (1999) 2 NWLR (PT.591) 449 at 462.

It is a multiplicity of the same action in the same court being pursued simultaneously by the plaintiff/applicant as the case may be. There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue. See OKAFOR VS. ATTORNEY GENERAL AND COMM.FOR JUSTICE ANAMBRA STATE (1991) 6 NWLR (PT.200) 689. See also MESSR NV SCHEEP VS. MR. S. ARAZ (2000) 15 NWLR (PT.691) 622.

Applying the definition of an abuse of the court stated above to the instant appeal, I am of the humble view that the learned trial Judge was in error in holding that there is an abuse of the court process in the instant appeal where it is clearly shown that the parties as well as the subject matter before both the Federal High Court, Kaduna and the Kebbi State High Court are not the same at all. Issue No.3 formulated by the learned counsel for the appellant is also resolved in favour of the appellant against the respondents.

In the final analysis, I hold that there is merit in this appeal and the appeal is hereby allowed.

The ruling of the Kebbi State High Court, striking out suit No.KB/HC/14/2005 delivered on the 20th day of April, 2006 is hereby set aside. The suit No. KB/HC/14/200S, is hereby remitted to the Chief Judge of Kebbi State for assignment to another Judge, other than Hon. Justice I.B. Mairiga, of the Kebbi State High Court to be heard and determined on its merits.

I award costs assessed at N30,000.00 to the appellant against the respondents.

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Other Citations: (2009)LCN/3152(CA)