SANI & ORS v. MASUD
(2020)LCN/15189(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 12, 2020
CA/K/243/2018
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
- HALIMA ABDULLAHI SANI 2. AMINU ABDULLAHI SANI 3. HALADU ABDULLAHI SANI (For Themselves And On Behalf Of The Estate Of Late Abdullahi Sani) 4. MALLAM SANI AMINU APPELANT(S)
And
YAHAYA MAS’UD RESPONDENT(S)
RATIO
WHETHER OR NOT THE RULES OF COURT HAS A BINDING FORCE OF LAW ON PARTIES
The Rules of Court are not made for mere cosmetics but to be obeyed as they have binding force of law on parties. See the case of OWNERS OF THE MV “ARABELLA” VS N.A.I.C (2008) 11 NWLR (PT. 1097) 182 at 205 – 206 G – C, 222 C – D, where the Supreme Court held as follows:-
“Rules of Court are not mere rules. They partake of the nature of subsidiary legislation by virtue of S.18(1) of the Interpretation Act. Consequently, rules of Court have the force of law. That is why rules of Court must be obeyed. And where there is non-compliance with the rules of Court, the Court should sanction the non-compliant party otherwise the purpose of enacting the rules of Court will be defeated. In other words, rules of Court are not only meant to be obeyed they are binding on all parties before the Court and any party who fails to obey the rules of Court must bear the consequence of his failure or omission” PER MUKHTAR, J.C.A.
WHETHER OR NOT NON-OBSERVANCE OF THE CONDITIONS PRECEDENT TO BRINGING AN ACTION WILL OUST THE EXERCISE OF JURISDICTION BY THE COURTS
It is trite that non observance of the conditions precedent to bringing an application, will oust the exercise of jurisdiction by the Courts. PER HUSSAINI, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of the High Court of Kaduna State presided over by Hon. Justice M. L. Mohammed and delivered on the 8/03/2018 in Suit No. KDH/KAD/1084/2016.
The suit was initiated by the Respondent against the Appellants at the Court below via a writ of summons and statement of claim dated 11/11/2016 together with all accompanying front loaded documents. The Appellants as Defendants at the Court below upon being served with the Respondent’s originating processes filed a joint statement of defence dated 23/12/2016 filed via motion on notice dated 28/12/2016 with other accompanying processes. In response thereto, the Respondent filed a reply dated 14/2/2017.
At the close of pleadings, the Respondent applied for pre-trial conference on 21/3/2017 and the matter fixed for the conference on the 4/5/2017.
The Appellants and the Respondent filed and exchanged pre-trial information and answers; forms 16 and 17 respectively.
However, on the 4/5/2017, the Respondent sought for another date for pre-trial conference and the matter further adjourned without an objection by the Appellants to the 5/6/2017 for pre-trial conference.
On the 5/6/2017, neither the Respondent nor his counsel were in Court but the Appellants magnanimously applied for another date for pre-trial conference and the matter further adjourned to the 6/7/2017 for pre-trial conference.
On the 6/7/2017, the Respondent applied for another date to file applications and the matter further adjourned to the 9/10/2017 for pre-trial conference without objection from the Appellants.
On the 9/10/2017, neither the Respondent/ Plaintiff nor his counsel were in Court and the Appellants’ counsel invoked the provision of Order 26 Rule 6(a) of the Kaduna State High Court (Civil Procedure) Rules 2007 and applied for the dismissal of the Respondent’s case for failure to participate in the pre-trial conference which was granted and the suit was dismissed accordingly by the Court below.
The Respondent thereafter filed a motion on notice dated 13/10/2017 seeking to set aside the order for dismissal made on the 9/10/2017. The Appellants did not oppose the said application and same was granted and the matter fixed for 7/12/2017 for pre-trial conference pursuant to the application by counsel to the Respondent.
On the 7/12/2017, neither the Respondent nor his counsel were in Court, the Appellants for the second time invoked the provisions of Order 26 Rule 6(a) of the Kaduna State High Court (Civil Procedure) Rules 2007 and the trial Court accordingly dismissed the Respondent’s case for failure to participate in the pre-trial conference and or series of pre-trial conference.
The Respondent thereafter filed another motion on notice dated 8/12/2017 seeking to resuscitate the matter, to which the Appellants filed a counter affidavit to oppose the said application. The Respondent filed a reply on points of law dated 18/12/2017.
The Court below after hearing arguments in respect of the said motion. In a well considered ruling delivered on the 8/3/2018 granted the application and set aside the second order of dismissal.
The Appellants were unhappy with the said ruling and hence filed a Notice of Appeal predicated on four grounds pursuant to the leave granted by the Court below on the 8/3/2018 appealing against the said ruling. The learned counsel for Appellants A. Bashar, Esq. raised twin issue from the four grounds, thus:
1. WHETHER the trial Court had the requisite jurisdiction to entertain the motion on notice dated 8/12/2017 filed outside the mandatory period of 45 days stipulated by Order 26 Rule 4 of the High Court (Civil Procedure) Rules of Kaduna State, 2007? (Grounds 1 and 2)
2. WHETHER the trial Court was justified in granting the application dated and filed on 8/12/2017 by the Respondent to set aside the order of dismissal made on the 7/12/2017? (Grounds 3 and 4)
On his part the learned counsel for the Respondent Muhammad Etubi, Esq distilled the following three issues for determination:
(1) Would it not have amounted to a denial of the right to fair hearing to have refused the Respondent’s application dated the 8th day of December, 2017 and granted on the 8th day of March, 2018 -distilled from ground one.
(2) Whether the trial Court was justified in setting aside its order of 7/12/2017, on the 8/3/2018 – distilled from ground two.
(3) Whether the Appellants, having instigated and participated in the Pre-trial conference outside the 45-day time-bar, can now be heard to challenge same – distilled from ground three
I am of the view that the Respondent’s three issues are adequately subsumed by the Appellant’s twin issues, which are hereby adopted for the determination of this appeal.
On Issue One, the learned counsel for the Appellant observed the provision of the High Court of Kaduna State (Civil Procedure) Rules 2007 dealing with pre-trial conferences. Order 26 Rule 1(1) provides thus:
1(1) “within 14 days after the close of pleadings, the Plaintiff shall apply for the issuance of a pre-trial conference notice.
(2) upon application by the Plaintiff under sub-rule 1 above, the judge shall cause to be issued to the parties and their practitioners (if any) a pre-trial conference notice as in Form 16 accompanied by a pre-trial information sheet as in Form 17 for the purposes set out hereunder.”
Order 26 Rule 4 which deals with the time table for the pre-trial conference provides thus:
(4) “The pre-trial conference or series of pre-trial conferences with respect to any case shall be completed within 45 days of close of pleadings, and the parties and their legal practitioners shall cooperate with the judge in working within this time table. As far as practicable, pre-trial conference shall be held from day to day or adjourned only for purposes of compliance with pre-trial conference order.”
Order 26 Rule 7 on the other hand deals with the sanction to be imposed on parties for failure to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith. It provides thus:
7. “If a party or the party’s legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith, the judge shall:
(a) In the case of the Plaintiff dismiss the claim
(b) In the case of the defendant enter final judgment against the defendant.
Any judgment given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference.”
After the filing and exchange of pleadings by both parties, the Respondent applied for pre-trial conference on the 21/3/2017 and the matter fixed for the 4/5/2017 for pre-trial conference.
In compliance with Order 26 Rule 1, Forms 16 and 17 were duly filed and exchanged by all the parties preparatory to the pre-trial conference slated for the 4/5/2017.
On the effective date for the commencement of the pre-trial conference which is 4/5/2017, the Respondent’s counsel sought for another date which the Appellants’ counsel did not oppose and the case adjourned to the 5/6/2017 for pre-trial conference.
On the return date which is 5/6/2017, the Plaintiff was not in Court and his counsel was also not in Court but the Appellants’ counsel applied for another date for pre-trial conference and the Court below further adjourned the matter to the 6/7/2017 for pre-trial conference.
On the 6/7/2017 when the Respondent’s counsel appeared in Court, he sought for an adjournment to file some applications which the Appellants’ counsel did not oppose and the matter further adjourned to the 9/10/2017 for pre-trial conference.
On the 9/10/2017, neither the Plaintiff nor his counsel was in Court, the counsel to the Appellants drew the attention of the trial Court to the proceedings of 5/6/2017 and thereafter invoked the provisions of Order 26 Rule 6(a) of the rules of the Court below for the dismissal of the Respondent’s claim and the trial Court accordingly dismissed the Respondent’s suit for failure to participate in the pre-trial conference.
In consequence of the dismissal, the Respondent filed an application dated 13/10/2017 seeking for an order setting aside the order made on the 9/10/2017. The said application dated 13/10/2017 was heard on the 9/11/2017 and granted and the matter further adjourned to 7/12/2017 for pre-trial conference.
Before the date fixed for the pre-trial conference i.e. 7/12/2017 the Respondent’s filed an application dated 13/11/2017 seeking for leave to call additional witnesses and file their respective deposition on oath and the said application was served on the Appellants and same fixed for the same 7/12/2017 for hearing during the pre-trial conference.
On the 7/12/2017, neither the Respondent nor his counsel were in Court, the Appellants’ counsel thereafter applied for the dismissal of the Respondent’s suit in line with Order 26 Rule 6(a) of the Rules of the trial Court and the suit accordingly dismissed for the second time.
It was the dismissal of the Respondent’s suit for the second time that led to the Respondent to file another application dated 8/12/2017 to set aside the order made by the trial Court on the 7/12/2017.
The Appellants’ upon being served with the said application filed a counter affidavit with two annextures marked as Exhibits A & B together with a written address in opposition to the said application.
The application dated 8/12/2017 was heard on the 29/1/2018 and the trial Court delivered its ruling on the 8/3/2017 granting the said application.
It was submitted for the Appellants that the application dated 7/12/2017 was incompetent having been heard and granted outside the 45 days time-frame provided by Order 26 Rules 4 and 6 of the Kaduna State High Court (Civil Procedure) Rules, 2007. It was further submitted that in the absence of prayer for enlargement of time, the application to set aside the said judgment of the trial Court was incompetent and the Court below therefore lacked jurisdiction to entertain the Respondent’s. He urged the Court to so hold and resolve the issue in favour of the Appellants and against the Respondent.
The learned counsel for the Respondent argued that it would have amounted to a denial of the right to fair hearing to have refused the Respondent’s application dated the 8th day of December, 2017 and granted on the 8th day of March, 2018.
It was further submitted for the Respondent that one of the attributes of the fundamental right to fair hearing is that the Court should hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case – see KOTOYE VS. CBN (1989) 1 NWLR (pt.98) 419 @ 444.
It was further argued that the Respondent as Plaintiff was entitled to counsel of choice, opportunity to call all necessary witnesses in support of his case, opportunity to challenge and or cross-examine in person or through counsel a witness called by adversary, right to final address on the law in support of his case in accordance with the relevant rules of Court. NDUKAUBA VS. CHIEF KOLOMO & ANOR. (2005) 4 NWLR (Pt. 915) 411; (2005) all FWLR (t. 248) 1602 @ 1613 S.C; (2005) I.S.C. (pt.1) 80 @ 87.
It was further submitted for the Respondent that the Lower Court was right when it held that it would amount to a violation of the Respondent’s right to fair hearing to terminate the suit at the Pre-trial conference stage, without more.
The learned Counsel for the Respondent urged the Court to strike out issue one of the Appellants since it has not been tied to any of the grounds of appeal. It is noteworthy also that the grounds of appeal must also arise from the decision appealed against.
It is pertinent that the issue of statutory time frame within which to take certain steps, as raised and argued by the Appellants, is one touching on jurisdiction and may be raised at any time by any of the parties especially in the instant case where the Rules of Court make glaring provisions regarding time-lines for filing the pre-trial process and its disposition. It is an indispensable germane issue to the proceedings and the decision that culminates into the instant appeal.
The facts and law that boiled down to the institution of the instant appeal are not only relevant but the core issue time frames in civil proceedings before the lower Court and the very subject matter that calls for determination in the instant appeal. The statutory issue of pre-trial proceedings directly affects the competence of the Court below to hear and determine the suit and because of the fundamental nature of jurisdiction, it could be raised even in the Supreme Court. Thus, no Court should not ignore the essence of the issue of jurisdiction. See Usman Danfodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p. 305.
It is pertinent that, as at the time the Respondent’s application dated 13/10/2017 was heard on the 9/11/2017 and granted by the trial Court, the pre-trial conference period of 45 days was already timed out.
The first pre-trial conference was fixed for the 4/5/2017 after the close of pleadings. By simple arithmetical computation, the pre-trial conference ought to have been concluded by 18/6/2017 in line with Order 26 Rule 4 which mandatorily requires the pre-trial or series of pre-trial conferences to be held from day to day or adjourned only for the purposes of compliance with pre-trial conference orders. For the avoidance of doubt and at the risk of repetitiveness, the said Order 26 Rule 4 provides thus:
(4) The pre-trial conference or series of pre-trial conferences with respect to any case shall be completed within 45 days of close of pleadings, and the parties and their legal practitioners shall corporate with the judge in working within this time table. As far as practicable, pre-trial conference shall be held from day to day or adjourned only for purposes of compliance with pre-trial conference order.”
The law is also explicit about the consequences of disobedience to the forgoing mandatory requirement. Thus, Order 26 Rule 7 of the lower Court’s Rules provides thus:
7. “If a party or the party’s legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith, the judge shall:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(a) In the case of the Plaintiff dismiss the claim
(b) In the case of the defendant enter final judgment against the defendant.
Although the Respondent had been in the habit of asking the Court to set aside the order of dismissal only to go back to his sleeping attitude, it is pertinent that a judgment given under the foregoing rule may only be set aside upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow not exceeding the pre-trial conference period and such application shall be accompanied by an undertaking to participate effectively in the pre-trial conference.
The instant appeal relates to the 2nd application dated 8/12/2017 and granted on the 8/3/2018 at a time when the Court below no longer had the requisite jurisdiction to entertain the said application having been brought outside the 45 days time table stipulated under Rule 4 of Order 26 of the Rules and without seeking for much less obtaining an order for extension of time.
I am of the view that the last pre-trial conference order granted by the Court below was null and void as it was predicated upon null proceedings in clear breach of the requirement of Order 26 Rule 4 of the Rules of the Court below.
The Rules of Court are not made for mere cosmetics but to be obeyed as they have binding force of law on parties. See the case of OWNERS OF THE MV “ARABELLA” VS N.A.I.C (2008) 11 NWLR (PT. 1097) 182 at 205 – 206 G – C, 222 C – D, where the Supreme Court held as follows:-
“Rules of Court are not mere rules. They partake of the nature of subsidiary legislation by virtue of S.18(1) of the Interpretation Act. Consequently, rules of Court have the force of law. That is why rules of Court must be obeyed. And where there is non-compliance with the rules of Court, the Court should sanction the non-compliant party otherwise the purpose of enacting the rules of Court will be defeated. In other words, rules of Court are not only meant to be obeyed they are binding on all parties before the Court and any party who fails to obey the rules of Court must bear the consequence of his failure or omission”
See also the case of JAMILU VS AYINLA (2009) 17 NWLR (PT. 1170) 238 at 280 – 281 F – A, where the Court held as thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Assuming therefore that the actual commencement day of the pre-trial conference as has been recorded, was the 29th November, 2006, then 45 days would start to run from the 30th day of November, 2006, in which case the pre-trial conference(s) should have been completed on or before the 19th day of January, 2007. However, since the pre-trial conference period had lapsed before the said judgment was entered, we shall base our calculation of the 45 days within which to bring the application to set aside on the date of delivery of that judgment, which was the 9th day of February, 2007. Calculating from the 10th of February, 2007 the 45 days would have lapsed on the 1st of April, 2007, that is to say that the appellants ought to have brought their application on or before the 1st day of April, 2007.
This however, is not the case as the appellants delayed until the 23rd day of July, 2007 more than 2 months after the expiration of the 45 days stipulated by the Rules before bringing the motion to set aside, going by the second application which is subject of this appeal, and by the first application which was unfortunately struck out, 11 days after the judgment was entered. Obviously the time for bringing the application having elapsed, the applications were incompetent unless the appellants sought for extension of time within which to apply to set aside the said judgment.”
The Respondent in this case waited until more than 5 months after the expiration of the 45 days stipulated by Order 26 Rule 4 before bringing the motion to set aside. In the absence of a prayer for extension of time within which to apply to set aside the judgment, the application was incompetent and the trial judge had no jurisdiction to entertain the said application.
In the case of NWANKWO VS ABAZIE (2003) 12 NWLR (PT. 834) 381 at 412 D – C, the Court per Obadina JCA held thus:
“The position of the law is that where a process is to be filed within a specific time prescribed by law, and the process is filed outside the prescribed time, that process is incompetent. A prayer to the Court asking the Court to deem the incompetent process as duly and properly filed cannot cure the defect in filing the process out of time unless there is a substantive prayer for extension of time within which to file the process.”
The jurisdiction of the trial Court can therefore only be invoked where there is a substantive prayer for extension of time. The Court below therefore lacked the jurisdiction to have entertained and granted the Respondent’s application to set aside the judgment of the Court made on the 7/12/2017.
The foregoing appraisal clearly resolves issue one in favour of the Appellants and against the Respondent and spells out the merit of the appeal. It as well renders the remaining issue academic and insignificant. The appeal is meritorious and succeeds per force. It is accordingly allowed.
The decision of the Court below delivered on the 8th day of March, 2018 in Suit No. KDH/KAD/1084/2016 is hereby set aside. The Appellants are entitled to costs against the Respondent assessed at One Hundred Thousand Naira (N100,000.00).
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother Hussein Mukhtar, JCA. From the facts of the case, the respondent is a serial defaulter with regard to what is required of him at pre-trial conference. Because of his lackadaisical attitude towards the pre-trial conference, the appellants applied under Order 26 Rule 6 (a) of the High Court (Civil Procedure) Rules) of Kaduna State to dismiss the respondent’s suit for failure to participate in the pre-conference trial. The lower Court agreed and dismissed the suit only for the respondent to seek to have the order of dismissal set aside. The lower Court graciously set aside its order dismissing the suit thereby giving the respondent a chance to carry on with the pre-trial conference. But the respondent carried on just as he did at the previous occasion with the same lackadaisical attitude towards the pre-trial conference. This prompted the appellants to again ask the lower Court for the suit be dismissed. Again the suit was dismissed and again the respondent sought to have the dismissal order set aside. Again the lower Court set aside the order.
The pre-trial conference is not open ended. Order 26 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules, 2007 states inter-alia that “the pre-trial conference or series of pre-trial conferences with respect to any case shall be completed within 45 days of close of pleadings”. This provision is not made for the fun of it. The rationale behind it, is that there must be an end to a pre-trial conference, just as there must be an end to litigation. A party cannot serially profit from its wrong doing and expect to get away with it. For this reason and the reasons given in the lead judgment, the appeal has merit and is allowed. The decision of the lower Court is set aside.
SAIDU TANKO HUSSAINI, J.C.A.: I have read before now the lead Judgment delivered by my Lord, Hussein Mukhtar, JCA with whom I agree that this appeal has merit.
It is clear from the facts on record that as at the date the trial Court entertained the request of the Respondent to set aside the Order earlier made by the Court on the 8th March, 2018, the Court no longer had the jurisdiction to entertain that application, same not having been brought in line with due process of the law. The applicants had failed to bring their request within 7 days from the date the order of Court was made. It is trite that non observance of the conditions precedent to bringing an application, will oust the exercise of jurisdiction by the Courts. The trial Court ignored all these and proceeded wrongly to grant the application of the Respondent thereby setting aside its earlier Order, thus rendering the decision or ruling in suit No. KDH/KAD/1084/2016 delivered on 8th March, 2018 a nullity. The same is set aside. The appeal succeeds and same is allowed. Cost is assessed in the sum of One hundred thousand naira (100,000.00) for the Appellant and against the Respondent.
Ordered accordingly.
Appearances:
BASHAR, ESQ. For Appellant(s)
MUHAMMAD ETUBI, ESQ. For Respondent(s)
