OCHIE & ANOR v. ISIAGU & ORS.
(2010)LCN/3824(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/E/EPT/01M/2009
RATIO
PROCEDURE: PURPOSE OF RULES OF COURT
The law is settled concerning Rules of Court. It is that Rules of Court must always be complied with or obeyed. However the Court in the knowledge that its Rules are designed to aid the attainment of justice and not to thwart it, has in deserving situations not penalised the failure of parties to adhere strictly to the same with the dear or severe consequences which failure should ordinarily attract. This is however not to say that the Court will oblige a party an Order to regularise his failure to comply with its Rules, as of course or for the mere asking. The position of the law as earlier stated is that rules of court must prima facie be obeyed and if there is non-compliance with the rules, the noncompliance must be explained and if not explained, then there will be no basis upon which the indulgence of the court can be granted or predicated.
See OLANIYAN & ORS V. OYEWOLE & ORS [2008) All FWLR (pt. 399) 503 at 525. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. IKECHUKWU OCHIE
2. ALL PROGRESSIVE GRAND ALLIANCE Appellant(s)
AND
1. HON. JOSEPH ISIAGU
2. PEOPLES DEMOCRATIC PARTY
3. MR. OWOKORE (Electoral Officer, Anambra East Local Government Area)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling): The motion on notice dated 24/9/2009 and filed on the same day before this Court was brought by the Appellants/Applicants pursuant to Section 15 of the Court of Appeal Act and Orders 4, 6(15), 7(10) & 8(1)(4) of the Court of Appeal Rules. The orders which are being sought in the motion by the Appellants/Applicants (who will hereinafter simply be referred to as the Applicants are as follows: –
1. Leave of the Hon. Court to amend the Notice and Grounds of Appeal by including the name and address of service of the 2nd respondent Peoples Democratic Party (P.D.P) in paragraph 5 of the Notice and Grounds of Appeal.
2. An order deeming as properly filed and served a Notice of Appeal containing the name and address of the 2nd Respondent Peoples Democratic Party (P.D.P) in paragraph 5 of the Notice of Appeal the Appropriate (sic) filing fees having been paid.
3. Leave of the Hon. Court to compile and transmit the Record of appeal and all other process out of time.
4. Extension of time within which the Appellants/Applicants may couple (sic) and transmit the Record of Appeal.
5. An order deeming as properly compiled, lodged in the Hon. Courts (sic) Registry and served on the Parties the Record of Appeal already transmitted and served.
6. An order of the hon. (sic) Court consolidating this motion with the motions dated/filed on 25-06-09 & 09/07/09 filed by the 1st Respondents respectively.
7. An order deeming as properly filed and served the Appellants (sic) brief of argument the Appropriate (sic) filing fees having been paid.
The grounds of the application as set out in the motion paper are as follows:-
1. THE APPELLANTS/APPLICANTS filed and served the Notice of Appeal within time but the said notice did not contain the name and address of the 2nd Respondent ‘ Peoples Democratic Party (P.D.P.) in paragraph 5 of the Notice of Appeal as required by law.
2. The Appellants/Applicants (sic) counsel’s omission to state the name and address of service of 2nd respondent (P.D.P) in paragraph 5 of the Notice of Appeal is a curable defect.
3. The Record of appeal was compiled and lodged in the Registry of the Hon Court outside the period permitted by law
4. The Appellants/Applicants filed and served their Brief based on the Record of Appeal compiled and transmitted out of time.
5. The 1st Respondent and 3rd – 5th Respondents filed separate Motions on Notice praying for the striking out of the Appellants/Applicants (sic) Record of Appeal and brief of Argument
The motion was entertained by the Court on 1/3/2010 C.J Okoli-Akirika, learned counsel for the Applicants in moving the motion relied on its supporting affidavit Dwelling on prayers 1 and 2 in the motion paper, learned counsel submitted that the omission sought to be cured is not fatal as it is a curable defect. In respect of prayers 3, 4 and 5, learned counsel submitted that the court has the power to extend time, He referred to Order 7 Rule 10 of the 2007 Rules of this Court in this regard. Learned counsel applied to withdraw prayer 7 as the brief was filed within time having regard to the date he collected the Record.
Mike Okoye, learned lead counsel for the 1st Respondent did not oppose the withdrawal of prayer 7. He however urged that it be dismissed as it had been argued. Learned lead counsel relied on the counter affidavit filed by the Respondent in opposing the instant motion.
In respect of prayers 1 and 2, learned lead counsel relied on paragraphs 5 and 6 of the counter affidavit. In respect of prayer 3, learned lead counsel submitted that since extension of time was not first sought, the prayer was liable to be dismissed.
It is the further submission of learned lead counsel that if prayer 3 is dismissed, prayers 4 and 5 should also be automatically dismissed Learned lead counsel said that no record was exhibited as it ought to have been exhibited. That the record sought to be entered ought to have been exhibited to enable the adversary attack same. Dwelling on the prayer for consolidation, learned lead counsel submitted that it is governed by rules specifically made for the purpose and that the rules do not provide for the procedure now being adopted. It is the submission of learned lead counsel that it is different matters that are consolidated; that interlocutory matters in the same suit cannot be consolidated. He urged that the instant motion be dismissed so Ibrahim (Asst. Chief legal Officer, INEC) learned counsellor the 3rd & 5th Respondents opposed the motion before the Court In doing this learned Ass. CLO associated himself with the submissions of learned lead counsel for the 1st Respondent. He also submitted that Order 6 Rule 2 of the 2007 Rules of this Court was not complied with. He urged that the motion be dismissed.
Learned counsel for the Applicants replying on points of law, submitted to the effect that the wrong numbering of the prayers set out in the motion paper, is his act and that the law does not penalise the client for omission of counsel, learned counsel further said that the wrong numbering of the prayers is not fatal. It is also his submission that the issue is a technical one.
The entitlement of the Applicants to the Orders sought by them will be considered in the order the prayers in that regard have been arranged in the motion paper, i.e seriatim.
The first Order which the Applicants seek is one for the leave of this Court to amend the Notice and Grounds of Appeal by including the name and address for service of the 2nd Respondent, i.e. (PDP) in paragraph 5 of the Notice and Grounds of Appeal.
The Rules of this Court in Order 6 Rule 2(1) provide thus:-
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal’) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the name and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and shall also have endorsed on it an address for service.
It is glaring having regard to the provision of the Rules of this Court reproduced above, that the first Order being sought by the Applicants in the instant application, is to enable them now provide in the Notice of Appeal the address for service of the 2nd Respondent which should have been provided therein as at the time of the filing of the Notice of Appeal in the lower Tribunal.
The law is settled concerning Rules of Court. It is that Rules of Court must always be complied with or obeyed. However the Court in the knowledge that its Rules are designed to aid the attainment of justice and not to thwart it, has in deserving situations not penalised the failure of parties to adhere strictly to the same with the dear or severe consequences which failure should ordinarily attract. This is however not to say that the Court will oblige a party an Order to regularise his failure to comply with its Rules, as of course or for the mere asking. The position of the law as earlier stated is that rules of court must prima facie be obeyed and if there is non-compliance with the rules, the noncompliance must be explained and if not explained, then there will be no basis upon which the indulgence of the court can be granted or predicated.
See OLANIYAN & ORS V. OYEWOLE & ORS [2008) All FWLR (pt. 399) 503 at 525.
Learned lead counsel for the 1st Respondent in opposing the instant application and dwelling particularly on the first and second Orders being sought by the Applicants, relied on the depositions in paragraphs 5 and 6 of the counter affidavit filed by the 1st Respondent. The depositions in question read thus:-
Paragraph 5
That there is no fact supporting the exercise of this Honourable Court’s discretion to extend time for the Appellant (sic) to transmit the records of appeal to this Honourable Court.
Paragraph 6
That the Applicant’s (sic) delay in seeking extension of time will result to grave prejudice to the 1st Respondent.
I definitely do not see how the depositions re-produced above, relate to what Orders 1 and 2 being sought by the Applicants are about.
In contradistinction to the depositions of the 1st Respondent re-produced above, are the depositions in paragraphs 3.24 and 3.25 of the supporting affidavit of the instant motion and which read thus:-
Paragraph 2.34
That I duly filed and served the Notice of Appeal but my Counsel C.J. OKOLI-AKIRIKA ESQ informed me and I verily believed him that in paragraph 5 of the Notice he omitted to state the name and address of service of the 2nd Respondent – Peoples Democratic Party (PDP).
Paragraph 2.35
That the said mistake has now been corrected and a Notice of Appeal reflecting the address of service of 2nd Respondent attached herewith and marked EXH A.
The 2nd- 5th Respondents it is to be noted did not file any counter affidavit in the instant motion. I am of the considered view that the Applicants having regard to the depositions in paragraphs 2.34 and 2.35 of the supporting affidavit re-produced above, and which depositions stand uncontroverted or unchallenged have sufficiently explained why the address for service of the 2nd Respondent was not provided or stated in the Notice of Appeal they initially filed. In the circumstances, I find the Applicants entitled to the first Order they seek in the instant motion.
The second Order the Applicants seek in the motion before the Court is one deeming as properly filed and served a Notice of Appeal containing the name as well as the address for service of the 2nd Respondent Peoples Democratic Party (PDP) in paragraph 5 of the Notice of Appeal the appropriate fees having been paid.
I am of the considered view that upon the insertion of the name and address for service of the 2nd Respondent, the process that was amended can no longer be called a Notice of Appeal but an Amended Notice of Appeal.
Indeed while the Applicants in paragraph 2.35 of the supporting affidavit deposed that a ‘Notice of Appeal’ reflecting the address for service of the 2nd Respondent has been exhibited as EXH A, the said EXH A on its face is titled Amended Notice of Appeal. This being the situation, the Court cannot properly deem as properly filed and served the Amended Notice of Appeal the Applicants have exhibited to the instant application as the same is at variance with what was deposed to in paragraph 2.35 of the supporting affidavit. The Applicants will therefore not be granted any deeming order.
The third Order the Applicants seek is one for leave to compile and transmit the record of appeal and all other processes out of time.
In opposing the granting of this Order, learned lead counsel for the 1st Respondent submitted that the Order cannot be granted as an Order for extension of time was not first sought. It is the further submission of learned lead counsel that if Order 3 is refused, then Orders 4 and 5 automatically have to be also refused.
It is the duty of an applicant seeking for the discretionary order of this Court to enable him regularise his non-compliance with the Rules of Court as it relates to the doing of an act within a specific time frame provided by the said Rules, to present his case within the provisions of the rules on which he relies and in a consistent manner as well. Learned counsel for the Applicants having regard to his reply on points of law at the hearing of the instant application did not dispute that the Applicants needed to first procure an Order for extension of time for the purpose of securing Order 3. He however said that the wrong numbering of the Orders being sought in the instant application is his fault and that his clients should not be penalized for this.
Learned counsel for the Applicants would appear to want to turn this Court into an appendage of his Chamber in that he expects that the Court would arrange for him in the proper manner the Orders which he is seeking. There should be a limit to which the Court should be-stretched in granting parties indulgence when they default in adhering to its Rules. Allowing a party who has defaulted in obeying the provisions of the Rules of Court to correct or remedy the situation is definitely in accordance with the dictates of justice.
However, when the party in question directly or subtly requires or requests that it is the Court that should fashion the proper arrangement of the Orders which he seeks, then the Court which is supposed to be an unbiased umpire between the parties would be treading on dangerous grounds if it accedes to such a request.
Given what I have stated above, and as the Applicants did not first seek for an order for extension of time in the instant application before seeking for Order 3, it stands to reason that the said Order 3 must be refused. It is accordingly refused.
Having refused Order 3 and as submitted by learned lead counsel for the 1st Respondent, Orders 4 and 5 automatically also must be refused. They are accordingly refused.
Order 6 is for the consolidation of the instant motion with two other motions. This Order requires no elaborate consideration. This is because the fact of the entertainment of the instant motion on its own has clearly rendered the Order incapable of being granted.
In the same vein, Order 7 having been withdrawn at the time learned counsel for the Applicants was arguing the instant motion, there was in the circumstance nothing in relation to the said Order available to the Respondents for their response. It has to be struck in the circumstance.
In conclusion, only prayer 1 of the Applicants succeeds. All the other prayers fail and the Orders sought thereunder are according refused. Given the success of prayer 1, this Court hereby grants the Appellants/Applicants the following: –
Leave to amend the Notice and Grounds of Appeal filed in the instant appeal by including the name and address for service of the 2nd Respondent – Peoples Democratic Party (PDP) in paragraph 5 thereof. The Amended Notice of Appeal stating the name and address for service of the 2nd Respondent – Peoples Democratic Party (PDP) is to be filed within 5 days of the making of this Order.
MOHAMMED L. TSAMIYA, J.C.A.: I had had a preview of the Ruling just delivered by my learned brother. LOKULO-SODIPE, JCA. I agree with his reasoning and conclusions. I am also of the opinion that in this application, only first prayer could succeed while prayers 2 – 7 lack merits and fail and I too refused them. But the first prayer on the motion paper is hereby granted, i.e. Leave to amend the Notice of and Grounds of Appeal filed, by including the name and address for service of the 2nd Respondent (P.D.P.) in paragraph 5 thereof, and that the Amended Notice of and grounds of Appeal stating the name and address for service of the 2nd Respondent (P.D.P) is to be filed within 5 days from the date of this Ruling.
JUMMAI HANNATU SANKEY, J.C.A.: I agree.
Appearances
C.J. Okoli. AkirikaFor Appellant
AND
Mike Okoye with Pat Igwuebuike (Mrs.) for the 1st Respondent
S. O. Ibrahim (Asst. Chief Legal Officer, INEC) for the 3rd-5th RespondentsFor Respondent
