Legalpedia Citation: (2023-07) Legalpedia 88052 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu Jul 20, 2023

Suit Number: CA/K/172/2022

CORAM

Chidi Nwaoma Uwa JCA

Mohammed Baba Idris JCA

Muslim Sule Hassan JCA

PARTIES

THE GOVERNOR OF KADUNA STATE AND 3 ORS

APPELLANTS

DURBAR HOTEL PLC

RESPONDENTS

AREA(S) OF LAW

APPEAL, LAND, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent upon filing this suit for declaration of title as well as orders of Court declaration the demolition of her property and transferring same to a third party as unconstitutional against the 1st and 2nd Appellants, sought to join the 3rd and 4th Appellants as defendants after the expiration of pre-action notice issued to them. It is this application that necessitated the filing of the Notice of preliminary Objection by the Appellants on the basis that due to the failure of the Respondent to serve pre-action Notice on the 3rd and 4th Appellants as mandated by law, her action should be dismiss, plus that the action of the Respondent discloses no cause of action against the 1st and 2nd Appellants. The Appellants equally challenged the decision of the trial court granting the Respondent leave to amend the name of the 3rd Respondent.

The Respondent by her counter affidavit claimed that she, upon the action of trespass and unlawful demolition of her property, issued pre-action Notice on the 3rd and 4th Appellants and upon the expiration of the pre-action Notice, she brought the application to join them as defendants.

The court in her ruling dismissed the notice of preliminary objection and held that pre-action Notices were duly served on the 3rd and 4th respondent, plus that name of the 3rd Appellant can be amended as the wrong name brought to court was a misnomer that can be corrected. The Appellants were dissatisfied with the ruling hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether the trial judge was right when he held that the Pre-Action Notice served on the 3rd and 4th Appellants before they were joined when the action had already commenced satisfied the provisions of the relevant laws mandating the service of the pre-action before the commencement of an action against the 3rd and 4th Appellants and if they waived this right at any point in time?

Ø Whether the trial judge was right when he held that the use of the non-juristic entity Kaduna State Urban Planning and Development Agency instead of the statutory and juristic entity kaduna State Urban Planning and Development Authority is only a misnomer that is curable by name correction?

RATIONES DECIDENDI

COMMENCE AN ACTION – WHAT IT MEANS TO COMMENCE AN ACTION

The question that comes to mind and must be resolves is what does it mean to commence an action? This definition is not one that is ambiguous as to commence an action is to start an action against a party.  – Per M. S. Hassan, JCA

NOTICE – EFFECT OF FAILURE TO SERVE NOTICE

…notice is only but a mandatory provision of the law where failure to serve same may be an irregularity that cannot affect the merit of the case.  – Per M. S. Hassan, JCA

PRE-ACTION NOTICE – WHEN A PARTY DOES NOT RESPOND TO PRE-ACTION NOTICE

On the issue of whether the 3rd and 4th Appellants waived their right to complain when they did not respond to the pre-action notice, I agree with the appellant’s counsel that their failure to respond to the pre-action notice does not in any way shape or mean that they have waived their right to complain as they can only complain when they are joined as parties which they rightfully did by their Preliminary objection. – Per M. S. Hassan, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

1. Nil

CLICK HERE TO READ FULL JUDGMENT