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Akinyemi v. Governor, Oyo State

CHIEF AKIN AKINYEMI

( Trading under the name and style of

Akin Akinyemi and Associates )

V

GOVERNOR OF OYO STATE

ATTORNEY GENERAL OF OYO STATE

COURT OF APPEAL

( IBADAN DIVISION )

DALHATU ADAMU, JCA ( Presided )

FRANCIS FEDODE TABAI, JCA ( Read the Lead Judgment )

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/I/12/2000

FRIDAY, 7TH DECEMBER, 2001

ACTION - Parties - party struck out in a case - Whether can subsequently be joined as party in the same case

ACTION - Parties - Who can apply to be

ACTION - Right of action - Plaintiff’s right of action against persons who are generally and jointly liable to him

CONTRACT - Ex-facie illegal contract - Attitude of court thereto - Power of court to raise suo motu

CONTRACT - Non ex facie illegal contract - Validity or otherwise of - On what depends - Duty on party who seeks to rely on its validity Knight Frank & Rutley vs. Att.-Gen. Kano State distinguished

PRACTICE AND PROCEDURE - Undefended list procedure - Admission of liability of liquidated debt there-under - Effect of

PRACTICE AND PROCEDURE - Undefended list procedure - Concept thereof - Duty of court when affidavit discloses defence on merit PRACTICE AND PROCEDURE - Undefended list procedure - Defence on merit - What constitutes

PRACTICE AND PROCEDURE - Undefended list procedure - Purport of  Where defendant has good defence - What he is expected to do Effect of failure so to do

PRACTICE AND PROCEDURE - Undefended list procedure - Rationale therefor

Issues:

1.            Whether on the affidavit evidence before the court, it was right for the learned trial Judge to grant the defendants/respondents leave to defend the action by removing it from the undefended list and placing it on the ordinary cause list.

2.            Whether having regard to the fact that the 33 Local Governments had, on the application of the plaintiff/appellant, been struck out in the action by the learned trial Judge, it was right for him to order their joinder in the same action.

Facts:

The respondents as Government of Oyo State awarded a contract in the sum of N14,850,000 to the appellant which the appellant accepted. In furtherance to the requirements by the Oyo State Government the appellant entered into a performance bond with a third party - The Trans Nigeria Assurance Company Limited. A valid contract agreement was thereafter executed between the parties. The respondent mobilised the appellant by releasing a mobilisation fee of N500,000 to him, following which the appellant executed the contract to conclusion by raising finances on which he had to pay 21% interest. The appellant discharged his own side of the obligation thus rendering the Oyo State Government and the other parties to the contract liable to pay the balance of the contract fee of N14,350,000.00. The respondent not only accepted liability, it even instructed the department of government that should effect payment to pay the appellant. The respondent failed to discharge its major obligation by failure to give effect to the consideration under the contract. Consequently the appellant at the lower court filed an action under the undefended list procedure against the respondents and Surulere Local Government (for and on behalf of the Local Governments in Oyo State) as 3rd defendants wherein he claimed thus.

“(1) The sum of N14,350,000.00 being the outstanding balance due and payable to the plaintiff under the contract for the documentation and valuation of the assets of all the Local Governments in Oyo State, awarded the plaintiff by the defendants and which contract was duly executed by the plaintiff.

(2)     Interest on the said sum of N14,350,000.00 at the rate of 21% per annum.”

The affidavit in support of the writ was supported by overwhelming documentary evidence.

Thereafter a number of motions were filed by the Ogbomoso North Local Government and 13 others to contest their liability under the contract. Following an oral application by counsel to the appellant to withdraw the suit against the 3rd - 15th defendants, they were struck out.

On 5/11/99 the respondents filed their notice of intention to defend the suit. In the ruling on 30/11/99 the learned trial Judge ordered that the case be removed from the undefended list and transferred to the general cause list.

Being dissatisfied with the ruling, the appellant appealed to the Court of Appeal.