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  • 2003-12-08
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Kankara vs. C.O. P., Katsina State

ALHAJI DABO KANKARA

V

THE COMMISSIONER OF POLICE, KATSINA STATE

THE DIVISIONAL POLICE OFFICER (CPS)

THE SUPERINTENDENT OF POLICE, KANDE BUNATSAN

CORPORAL SANUSI IBRAHIM

KATSINA STATE GOVERNMENT

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/157/96

WEDNESDAY, 15TH MAY, 2002

ACTION - Commencement of action - Wrong mode adopted in commencing same -Whether can be deemed as validating the claims which must be heard by writ of summons where such is heard by originating summons

ACTION - When can be commenced by originating summons

COURT - Issues raised suo motu by court - Duty of  court to afford parties fair hearing thereto

COURT - Rules of court - Inherent power of court to ensure compliance therewith

COURT -Decisions of court - Need for same to be based on grounds raised and canvassed by the parties

FAIR HEARING -Issues raised suo motu by court - Duty of court to afford parties fair hearing thereto

JUDGMENT AND ORDERS - Decisions of court - Need for same to be based on grounds raised and canvassed by the parties

JUDGMENT AND ORDERS - Error of law - Nature of that can warrant reversal of a judgment

PRACTICE AND PROCEDURE - Actions - When can be commenced by originating summons

PRACTICE AND PROCEDURE - Commencement of action - Wrong mode adopted in commencing same -Whether can be deemed as validating the claims which must be heard by writ of summons where such are heard by originating summons

PRACTICE AND PROCEDURE - Error of  law - Nature of that can warrant reversal of a judgment

PRACTICE AND PROCEDURE - Litigant commencing action by a mode other than the one prescribed by law or rules of  practice - Impropriety of

Issues:

1.              Whether it was proper for the learned trial Judge to proceed to deliver his judgment basing same on an issue he raised suo motu without firstly, hearing or affording parties any opportunity to be heard on the issue.

2.              Whether there was any substantial dispute of facts between the contents of the affidavit in support of the originating summons and the defendant’s joint counter-affidavit as to enable the learned trial Judge reasonably or safely conclude that, the suit was wrongly commenced.

Facts:

The appellant as plaintiff commenced a claim in the court below against the respondents as defendants by originating summons claiming inter alia a refund to him by the respondents of the sum of N97,731.25k ( ninety-seven thousand, seven hundred and thirty-one naira, twenty-five kobo). In the affidavit in support of the summons, the appellant deposed that he was arrested by the police on 20/4/93, and kept in detention by 1st respondent and that the expressed reason for his arrest was the allegation made against him by the 5th respondent’s functionary that he conspired with others to cheat the Katsina  State Government when he presented an LPO to the State Ministry of Health, and obtained a cheque of one hundred thousand naira issued to him. That on 22/4/93, the appellant was threatened with sticks, canes etc. to produce the money he allegedly received from the Katsina State Ministry of Health.  That at about 12 noon on the same day 22 /4/93, the second, third, and fourth respondents made him go barefooted and with only a singlet on his body in a police van, to his house and subsequently to the Union Bank at Nagogo Street Kaduna and forced him there to cash a cheque for the sum of N97,731.25k from his personal account which he gave to them. The affidavit showed further that the Ministry of Health had advanced the sum of N97, 731.25k for the supply of drugs and for laboratory reagents, and the money was paid into the company’s account. That reagents and drugs requested for by the Ministry of Health could not be supplied to the Ministry of Health because of the intervening public holidays. The appellant also attached annextures to the summons in the court below.

After hearing the submission of both counsel, the court in a reserved judgment held that having regard to the nature of the claims of the appellant, his action ought not to have been brought by way of originating summons and consequently refused to go into the merit of the case by striking same out. The appellant, not being happy with the judgment appealed to the Court of Appeal.