CORAM

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Isaiah Olufemi Akeju -Justice of the Court of Appeal

Abubakar Muazu Lamido -Justice of the Court of Appeal

Jane Esienanwan Inyang -Justice of the Court of Appeal

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PARTIES

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1. PROBATION OFFICER, OSUN STATE

APPELLANTS 

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1. MRS. SANDRA EZEAH IN RE: CHIAGOZIEM EZEAH (M) – (9 YEARS) CHINDOYI EZEAH (F) – (7 YEARS) CHIAZAM EZEAH (F) – (6 YEARS) CHINEME EZEAH (F) – (4 YEARS) CHIEMERIE EZEAH (F)- (3 YEARS)

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, FAMILY LAW, DOMESTIC VIOLENCE LAW, GENDER RIGHTS, JURISDICTION, CIVIL PROCEDURE, STATUTORY INTERPRETATION, LEGAL CAPACITY

 

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SUMMARY OF FACTS

This case revolves around a domestic violence and child custody dispute. The 2nd respondent, Mrs. Sandra Ezeah, alleged that she was a victim of domestic violence in her marriage to the appellant, Dr. Ikechukwu Emmanuel Ezeah. According to her, she was ejected from their matrimonial home while the appellant retained custody of their five children, refusing her access to them. After reporting the matter to the Office of Public Defender, the 2nd respondent, through the 1st respondent (Probation Officer, Osun State), filed a motion seeking protection under the Osun State Protection Against Domestic Violence Law, 2013. The motion sought various reliefs including protection from exploitation and harassment, release of the children to their mother, unrestricted access to the children, and restraining the appellant from transferring the children to third parties or intimidating the mother. The Lower Court granted an ex parte order for interim protection and issued an arrest warrant against the appellant for failure to comply with the order. Eventually, the appellant was arrested and only released from prison custody after handing over the children to the 2nd respondent. The appellant then filed a notice of preliminary objection challenging the competence of the Lower Court to hear and determine the action. The Lower Court dismissed the objection, leading to this appeal.

 

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HELD

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1. The appeal was dismissed in its entirety.

2. The Court held that the respondents properly commenced their action by a motion on notice as prescribed by the Osun State Protection Against Domestic Violence Law, 2013.

3. The Court determined that Section 97 of the Sheriffs and Civil Process Act regarding endorsement of addresses for service outside jurisdiction is strictly applicable to writs of summons only, not to originating motions.

4. The Court ruled that the 1st respondent, as a social welfare officer, had locus standi to institute the action under Section 3(3) of the Protection Against Domestic Violence Law, and in any case, the presence of the 2nd respondent was sufficient to make the action competent.

5. The Court held that the Office of the Attorney General of Osun State could validly represent the respondents, especially since the 1st respondent was a State employee acting in an official capacity.

6. The Court affirmed the ruling of the trial Court and awarded costs of N200,000.00 to the 2nd respondent.

 

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ISSUES

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1.Whether the trial Court was right in holding that proceeding can be initiated in the High Court of Osun State by mere motion on notice dated and filed on 18th day of September, 2018.?

2. Whether the trial Court was right in holding that failure to endorse the appellant’s address for service on the originating process meant for service out of jurisdiction is an irregularity that will not render the process a nullity.?

3. Whether the trial Court was right in holding that the 1st respondent is a juristic person capable of suing and being sued and the suit does not constitute abuse of the process of the Court.?

4. Whether the trial Court was right in holding that it is right for the State Counsel in the Chambers of the Attorney General of the Osun State Ministry of Justice to bring and appear in this action of the respondents.?

 

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RATIONES DECIDENDI

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MODE OF COMMENCING PROCEEDINGS – WHETHER MOTION ON NOTICE IS PROPER WHEN PRESCRIBED BY LAW:

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“From the above provisions, any act of domestic violence is prohibited and where there exists acts of domestic violence, the victim as complainant may apply to the Court for a protection order. The application is to be made to a Judge in Chambers where it is feared that the victim may suffer undue hardship if the application is not heard expeditiously. The Registrar of the Court shall submit to the Judge the application together with the affidavit in support for hearing. It can be seen that the protection Against Domestic Violence Law of Osun State has prescribed a mode of commencing an action pursuant to the law. And the law is well settled that where a statute or a given rule of practice prescribes a method of commencing an action, there must be compliance with the statute or rule of practice.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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COMMENCEMENT OF ACTION – COMPLIANCE WITH PROCEDURAL REQUIREMENTS:

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“Now, since the law under which this suit was commenced clearly stated the mode of commencement is by an application supported by an affidavit, the respondents have substantially complied with the provisions of the law notwithstanding the absence of rules or directions from the Chief Judge of Osun State.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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APPLICATION OF SHERIFFS AND CIVIL PROCESS ACT – LIMITATIONS OF SECTION 97:

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“In PDP V. Uche & Ors (2023) LPELR 59604 @ 29; Agim, JSC held that: ‘…let me state that Section 97 of the Sheriffs and Civil Process Act by its clear words limited its application to writ of summons by expressly mentioning it as the originating process to be endorsed with certain notice. By not mentioning other originating processes like originating summons, originating motion, petition and others, the legislative intendment is clearly to require endorsement of such notice on writ of summons only.'” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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PROPER SERVICE OF ORIGINATING MOTIONS – INAPPLICABILITY OF SECTION 97 OF SCPA:

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“The appellant’s contention on this issue is without basis as Section 97 he relied upon is not applicable to an action commenced by way of originating motion. It is in stricto sensu applicable to suits commenced by writ of summons only.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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LOCUS STANDI UNDER DOMESTIC VIOLENCE LAW – RIGHT OF SOCIAL WORKERS TO INITIATE PROCEEDINGS:

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“The above provision enumerated the classes of persons empowered to institute an action on behalf of the complainant with his/her consent except where the complainant is unable to consent as a result of being a minor, mentally retarded, unconscious and/or generally persons who cannot consent in law. The 2nd respondent deposed to an affidavit and averred that when she reported the case of domestic violence against her person and her children at the social welfare department, the 1st respondent was assigned to handle the case. The 1st respondent is a social worker with the Social Welfare Department of Osun State.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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JURISTIC PERSONALITY – EFFECT OF NON-JURISTIC PARTY AMONG OTHER PARTIES:

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“The law, as stated earlier in this judgment, is that both natural and artificial persons are the juristic parties who can sue or be sued as parties in actions before the Court of law. Once there is a plaintiff and a defendant with the requisite juristic capacity in an action to sue or be sued, such an action would be properly constituted as to the parties and cannot be defeated on the ground of want of legal personality or capacity to sue and be sued. Where one or some of the parties among others in an action filed by many plaintiffs against many defendants turned out to be non-juristic and lacking the capacity to sue or be sued, that fact alone cannot render the suit incompetent on ground of improper constitution as to the parties.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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MAINTAINING ACTION DESPITE ALLEGED LACK OF CAPACITY – PRESENCE OF COMPLAINANT:

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“It is my candid view that the provision of Section 3(3) of the Protection Against Domestic Violence Law, 2013 of Osun State has clearly conferred locus standi on the 1st respondent to institute an action of this nature at the lower Court. Also, the appellant’s submission that the suit is incompetent is unfounded in view of the presence of the 2nd respondent in the matter. Even if the 1st respondent were to be found to be a non-juristic person, the presence of the 2nd respondent, in my view is enough to make the action competent and justiciable.” – Per ABUBAKAR MUAZU LAMIDO

 

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REPRESENTATION BY ATTORNEY GENERAL – SCOPE OF AUTHORITY:

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“It is to be noted that the 1st respondent is an employee of Osun State Government serving as Probate Officer in Osun State Social Welfare Department and he filed the action in the course of performing his duty as such. It follows therefore that in the course of discharging his official duty, the office of the Hon. Attorney General of Osun State can validly assign a counsel from Public Defender’s Department or any other Department as an officer of the State.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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PROVISION OF PRO BONO SERVICES BY ATTORNEY GENERAL’S OFFICE:

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“More so, there is no law that prohibits the office of the Attorney General from providing pro bono legal service to any person in either criminal or civil cases. Thus, the representation by a counsel from the office of the Hon. Attorney General of Osun State is proper and does not contravene any law.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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COMPETENCE OF COURT – REQUISITES FOR JURISDICTION:

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“The law has long been settled that a Court can only be competent to decide an action when: – (i) It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another; (ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (iii) The case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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DUE PROCESS OF LAW – IMPORTANCE OF PROPER COMMENCEMENT:

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“Now, since this issue centres on jurisdiction and the cardinal condition of its exercise is that the suit must be initiated by due process of the law and satisfy any condition precedent to the exercise of such jurisdiction, where a claim is not initiated by due process of the law, the Court’s jurisdiction to hear and determine the action is ousted. In Musa V. Sikon Synergies Ltd & Ors (2016) LPELR 41150 @ 11; Akeju, JCA held that: ‘The law is trite that once a statute or Rules are put in place for commencement or institution of an action or proceedings, such prescribed mode must be followed in commencing the action, otherwise the action will be incompetent’.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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PARTIES TO LITIGATION – DEFINITION AND REQUIREMENTS:

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“A party to an action has been defined in Black’s Law Dictionary 11th Ed. Pp. 1350 — 1351 as: ‘One by or against whom a lawsuit is brought; anyone who both is directly interested in a law suit and has a right to control the proceedings, make a defence, or appeal from an adverse judgment’. A party to an action is a person whose name is designated as plaintiff or defendant, appellant or respondent or applicant or respondent. It generally refers to those persons by or against whom a legal suit is brought.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

 

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JURISTIC PERSONALITY – NATURAL AND ARTIFICIAL PERSONS:

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“Now, the law is well settled that only natural or artificial persons can initiate and maintain a legal action in Court. In other words, only persons with requisite juristic personality can initiate legal action in Court to sue or be sued. They are persons recognized with legal capacity to institute or defend an action before a Court of law.” – Per ABUBAKAR MUAZU LAMIDO, J.C.A

 

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CASES CITED

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STATUTES REFERRED TO

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• Osun State Protection Against Domestic Violence Law, 2013

• Osun State High Court (Civil Procedure) Rules, 2008

• Sheriffs and Civil Process Act (SCPA), Section 97

• Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 34

• Evidence Act, 2011, Section 133

 

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