- Regd. Trustees, Kwara Anglican Diocese vs. Asa Local Govt.
- ₦ 200
Regd. Trustees, Kwara Anglican Diocese vs. Asa Local Govt.
THE REGISTERED TRUSTEES OF KWARA ANGLICAN
ASA LOCAL GOVERNMENT
BABATUNDE BABA ALATA
COURT OF APPEAL
( ILORIN DIVISION )
MURITALA AREMU OKUNOLA, JCA ( Presided )
PATRICK IBE AMAIZU, JCA (
Read the Lead Judgment )
WALTER SAMUEL NKANU ONNOGHEN,
10TH DECEMBER, 2002
- Pre-action notice - Requirement of before instituting an action against a
local government - Section 179(1) & (2), Kwara State Local Government Law
- Issues for determination - Need for to be distilled from grounds of appeal
- When a court is competent
- Land covered by customary right of occupancy granted by local government -
Court having original jurisdiction over
LAW - Land covered by customary right of occupancy granted by local government
- Court having original jurisdiction over
PRACTITIONER - Lawyers - Need for to be careful and precise in their choice of
PRONOUNCEMENT - On need for lawyers to be careful and precise in their choice
STATUTE - Kwara State Local Government Law, section 179(1) & (2) -
Purport of vis-a-vis requirement of pre-action notice before instituting an
action against a local government WORDS AND PHRASES - â€˜Noticeâ€™ - Meaning of
Whether the (Kwara State High Court sitting at Ilorin has
jurisdiction to try the suit in view of section 179(1) & (2) of the Kwara
State Local Government Law 1976, and section 41 of the Land Use Act, 1978.
herein, sometime on or about 10th and 11th of April 1999 , noticed that a
certain group of people commenced construction of a shopping complex in front
of one of the branches of their church at All Saints Anglican Church
Eiyenkorin, Ilorin, Kwara State. On enquiry from the said people, they claimed
that it was Asa Local Government which gave them permission.
of the appellant, their counsel caused two different letters to be written to
the 1st respondent warning that within five days if it fails to stop further
construction on the land and withdraw any right or permission already granted,
the matter will be reported to the appropriate authority. The respondents
failed to heed the warning. Consequently, the appellant instituted an action
against the respondents at the Kwara State High Court sitting at Ilorin. Before
the suit was fixed for hearing, the appellants brought an ex parte motion praying for an interim order restraining the
respondents from further constructing the shopping complex pending the hearing
of the motion on notice. The trial court heard and granted the application.
When the respondents were served with the interim order, they raised a
preliminary objection to the effect that the trial court lacked jurisdiction to
entertain the suit against the 1st respondent as the pre-action notice required
under section 179(1) and (2) Kwara State Local Government Law was not given.
Equally that the jurisdiction of the trial court to entertain the entire suit
is ousted by section 14 of the Land Use Act, 1978, as the land in dispute is
covered by right of occupancy granted by a local government. The trial court
heard arguments of counsel to both sides in respect of
the motion and gave its ruling that the action is improper
against the 1st respondent therefore its name should be struck out. It further
held that its jurisdiction to entertain the entire suit has been ousted by
section 41 of the Land Use Act 1978 and struck out the suit.
Dissatisfied with the ruling, the
appellant has appealed to the Court of Appeal.