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From Noah Ebije, Kaduna
Efforts by the Kaduna State government to set aside the ruling of the High Court of Justice of Kaduna State delivered by Hon Justice HAL Balogun over the ownership of Durbar Hotel Plc failed as the Court of Appeal has dismissed an Appeal brought before it against the ruling of the lower court.
The lead Counsel to the family of the late Head of State, General Sani Abacha, the owners of the Durbar hotel, Dr Reuben O Atabo, SAN, had joined the State Governor as 1st defendant, the Attorney General and Commissioner of Justice as 2nd defendant, Kaduna State Urban Planning and Development Authority (KASUPDA) as 3rd defendant, Kaduna State Geographic Information Service (KADGIS) as the 4th defendant.
However, the lead Counsel to the Kaduna State government, Mr AU. Mustapha, SAN, had pointed out that the Respondent had earlier addressed the 3rd defendant as Kaduna State Urban Planning and Development Agency, saying that the defendant is a non-juristic entity and thus same cannot be cured by name correction or amendment.
On April 4, 2022, Justice HAL Balogun of the High Court of Justice of Kaduna State ruled that the mistake in the name of the 3rd Appellant was a misnomer that can be cured by a simple order of the court to correct same, hence it did not mislead anyone as to who was sued and therefore it did not occasion any miscarriage of justice.
But, not satisfied with the ruling of the lower court, the Appellants through their Counsel sought and obtained the leave of the Court of Appeal to file a notice of Appeal on May 19, 2022.
The Appellants in their brief of argument, urged the Court of Appeal to resolve the issues in their favour on grounds that, “The Respondent did not serve the 3rd and 4th Appellants with the requisite pre-action notice.”Pre-action notice served during the pendency of an action before a party is joined is not proper in the eyes of the law.
“The 3rd and 4th Appellants timeously raised the issue of the non-service of the requisite notice and did not waive same.
“The 3rd Appellant as sued is not a legal personality and same is not a misnomer that can be cured by name correction”.
Also, the Respondent in a brief of argument urged the Court of Appeal to dismiss the Appeal of the Appellants and affirm the ruling of the lower court on grounds, “That the Respondent had served the 3rd and 4th Appellants with the requisite pre-action notice before joining them as parties to the action leading to this instant Appeal.
“That the mistake in the name of the 3rd Appellant is a misnomer that can be corrected by an order of amendment and does not have the potency of rendering the Respondent’s action at the lower court incompetent.
“That the mistake in the name of the 3rd Appellant has not occasioned any miscarriage of justice and did not mislead the Appellants as to the party who was sued”.
Consequently, the three Justices of the Court of Appeal, while delivering their Judgement, dismissed the Appeal brought before them by the Appellants, saying the days of technical justice are over, and wondered why the Appellants have failed to file their defence to the Respondent’s claim for a period of over three years.
