UNITY BANK PLC v. KAY PLASTIC NIGERIA LIMITED & ANOR
(2011)LCN/4753(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of July, 2011
CA/IL/21/2009
RATIO
GROUNDS OF OBJECTION: PURPOSE OF THE PROVISION OF ORDER 4 RULE 2 OF THE KWARA STATE HIGH COURT RULES; PERMISSIBLE MODE OF RAISING OBJECTIONS UNDER ORDER 4 RULE 2 OF KWARA STATE HIGH COURT RULES
The intendment of Order 4 rule 2, in the context of the philosophy of the new Rules of the Kwara State High Court, is that an intending objector should indicate the grounds of his objections. The sole purpose is not only to intimate the opponent of the nature of the issues to be canvassed but to satisfy the court that such an objection is one that merits the expenditure of the court’s precious time in attending to. The effect is that the “observation” of counsel for the respondents at the lower court on June 2, 2008 was not well-taken. The court should have discountenanced it as being improper. In a word, the only permissible mode of raising objections under Order 4 rule 2 is either by way of summons or motions: which processes must, clearly, set out the grounds for the objection(s). This must be so for, as Oladipo, for the appellant, rightly submitted, the auxiliary verb “may” employed in Order 4 Rule 2 (2) (supra) is mandatory. It does not admit of any discretion. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: WHETHER AN OBJECTION TO THE JURISDICTION OF A COURT CAN BE TAKEN AT ANY TIME
Generally speaking, it would be correct to say that an objection to the jurisdiction of a court can be taken at any time, even during appeal proceedings. The law on this point is so well-settled that one does not need to cite any authority. Suffice it, however, to cite Madukolu v Nkemdilim (1962) 1 All NLR (pt 4) 587; Utih v Onovivwe ( 1991) 1 NWLR (pt 166) 166; (1962) 4 SCNJ 25; Odofin v Agu (1992) 3 NWLR (pt 229) 350; (1992) 3 SCNJ 161; Agbi v Ogbeh (2006) All FWLR (pt 329) 941; (2006) 11 NWLR (pt 990) 65; Yaro v Arewa construction Ltd (2007) 17 NWLR (pt 1063) 333; (2008) All FWLR (pt 400) 603; Odunze v Nwosu (2007) All FWLR (pt 379) 1295; (2007) 3 NWLR (pt 1050) 1, as authorities for the view that an objection to the substantive jurisdiction of the court can be taken at any stage of the proceedings; see, also, Obande F. Ogbuinya, understanding the concept of Jurisdiction in the Nigerian Legal system (Enugu: SNAAP Press, Ltd, 2008) passim. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: WHETHER THERE IS DISTINCTION BETWEEN JURISDICTION OVER SUBJECT MATTER AND PROCEDURAL JURISDICTION
However, as settled on the authorities, there is a clear distinction between jurisdiction over subject-matter, which can be raised at any stage of the proceedings; and procedural jurisdiction which can only be sustained if it is raised timeously. In Kossen (Nig) Ltd v Savannah Bank Nig Ltd (1995) 9 NWLR at pt.420 439 at 451 paragraph D, Mohammed JSC had this to say: …there is jurisdiction over subject-matter which is unlimited and covered by the 1979 constitution and procedural jurisdiction…. procedural jurisdiction could be waived or acquiesced in by the affected party…where a wrong procedure was adopted in commencing a suit, or an action, and no objection to the procedure was timeously raised by the opposite party then the proceedings based on such wrong procedure is valid, citing Adebayo v Johnson (1969) 1 All NLR 176 at 190 – 191. PER CHIMA CENTUS NWEZE, J.C.A.
IRREGULARITY IN COURT PROCEEDINGS: CIRCUMSTANCES WHERE A PARTY WILL BE DEEMED TO HAVE WAVED IRREGULARITY IN COURT PROCEEDINGS ; WHETHER IT IS EVERY IRREGULARITY THAT CAN NULLIFY THE ENTIRE COURT PROCEEDINGS
As a corollary, where a party is apprised of any breach of the rules and he glosses over it and takes a step in the proceedings, he is deemed to have waved the breach of the rules of court. See, Adebayo v Johnson(supra); Kossen (Nig) Ltd v savannah Bank Nig Ltd (supra). In Okumagba Eboh and Ors v Ogbotemi Akpotu (1968) 1 All NLR 220 at 221 it was held that: It is not every irregularity that can nullify the entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case, it was much too late for the other party to complain about such irregularity. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
UNITY BANK PLC – Appellant(s)
AND
1. KAY PLASTIC NIGERIA LIMITED
2. ALHAJI KOLAWOLE A. YUSUF – Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): Way back in 2003 (that is, about eight years ago), the appellant herein (as plaintiff, subsequently, referred to as “claimant”) took out a writ of summons under the Undefended List Procedure against the respondents (as defendants) at the Ilorin Division of the Kwara State High Court (hereinafter referred to as the “lower court”); On March 4, 2004, the matter was transferred to the general cause list for hearing and determination. Sequel to the service on them of the Claimant’s Statement of Claim, the defendants filed their Statement of Defence. In addition, they counter claimed against the Claimant. This prompted the claimant’s Reply to the Statement of Defence and Defence to Counter Claim. These processes were filed on March 2, 2005.
Hearing in the case commenced on March 17, 2005. PW1 testified but did not exhaust his evidence. Some documents were tendered by consent. PW1 concluded his evidence three months afterwards, precisely, on July 26, 2005. On that day, PW2, also, testified. He was cross examined. We pause here to observe that during the pendency of this case at the lower court, the new rules embodied in the Kwara State High Court Civil Procedure) Rules, 2005 came into force. In passing, attention may be called to, among other sterling innovations in the new Rules, Order 1 Rule 2 which permits the court to “adopt such procedure as will in its view do substantial justice between the parties concerned” where a matter arises in respect of which no provisions are made in the Rules. Order 4 Rule 2, pragmatically, provides that the application of the rules “shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.”
Almost a year later, exactly, on July 11, 2006, the appellant (as claimant) beseeched the lower court with an application to amend her (a) Writ of Summons; (b) Statement of Claim; (c) Reply to the Statement of Claim and (d) defence to the Counter Claim. The lower court granted the application on October 9, 2006. The Claimant filed the Amended Reply to the Statement of Defence and Defence to Counter Claim on October 17, 2006 as required by Order 28 Rule 5 of the Rules of Court. On February 6, 2007, the defendants entreated the lower court to oblige them with an order to amend their Statement of Defence and Counter Claim. It was moved on February 7, 2007. As the Claimant did not oppose it, it was granted as prayed. Thirteen days later, that is, on February 20, 2007, the Claimant filed a Further Amended Reply to the Statement of Defence and Defence to Counter Claim as consequential amendments.
On June 2, 2008 (that is, one year and eight months from the date of the filing of the processes of October 17, 2006 and One year and four months from the date of the filing of the processes of February 2, 2007), counsel for the defendants made an “observation” at the lower court that these processes were not properly filed because they were filed out of time without the leave of court and without the payment of the necessary penalty fees. The lower court was persuaded by the said observation; hence, it struck out the Claimant’s Amended Reply to the Statement of Defence and Defence to the Counter Claim as well as the Further Amended Reply to the Statement of Defence and Defence to Counter Claim. Thereafter, PW2 testified. He was cross examined and discharged. On 6/10/08 the claimant called PW3. The defendants’ counsel refused to cross examine him on the ground that his senior in chambers wanted to do it personally. Thereupon, the witness was discharged. On the same day, that is, October 6, 2008, the claimant’s counsel moved an application filed to amend the existing Reply to Statement of Defence and Defence to Counter Claim. The defendants’ counsel opposed the application and, in a considered Ruling delivered on 21/1/09 the court refused the application.
This interlocutory appeal, therefore, is against the above two Rulings which the lower court delivered on June 2, 2008 and January 21, 2009.
ISSUES FOR DETERMINATION
1. Was the trial judge right in setting aside the Amended Reply to statement of defence and defence to counter claim and the Further amended Reply to statement of defence and defence to counter claim.
2. Was the trial judge right in refusing the claimant’s application for leave to amend its original Reply to statement of defence and defence to counter claim.
3. Was the statement of claim and the defence to counter claim valid.
ARGUMENTS ON ISSUE ONE
Was the trial judge right in setting aside the Amended Reply to statement of defence and defence to counter claim and the further amended Reply to statement of defence and defence to counter claim.
Learned counsel for the appellant, adopting and relying on the appellant’s Brief of Argument, urged the court to note that the lower court set aside the appellant’s Amended Reply to Statement of Defence and Defence to Counter Claim and the Further Amended Reply to Statement of Defence and Defence to Counter Claim upon an observation of the defendants’ counsel. The “observation” only metamorphosed into a complaint in the Ruling of the lower court.
Counsel submitted that the alleged late or improper filing of the appellant’s processes is categorized under the Kwara State High Court Civil Procedure Rules 2005 as ‘non compliance, citing Order 4 Rule 1 (1) of said Rules.
He conceded that the court had the discretion to set aside either wholly or in part any proceedings or document in respect of which a non compliance has occurred under Order 4 Rule 1 of the Rules of Court. He, however, submitted that such a weighty measure shall be taken only in accordance with the provisions of that Order. According to Order 4 Rule 2 (2), an application to set aside for irregularity may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or motion on notice. The word” shall” means “mandatory.” It excludes discretion. Thus any summons or motion on notice filed under order 4 must specify the grounds of the objection. In other words, any objection must specify the grounds of the objection. Except an objector comes either by way of summons or motion on notice he cannot satisfy the condition of specifying the grounds of the objection. He, therefore, submitted that the word “may” used in Rule 2 (2) must be construed to mean “shall.”
In the case on hand, the defendants’ counsel did not file either a summons or a motion on notice. The condition that the grounds of the objection be stated on the summons or motion on notice was not fulfilled. The lower court allowed the defendants to spring a surprise on the appellant in clear violation and disregard of the procedure prescribed by the Rules.
Counsel submitted that Rules of court are made to be obeyed, especially in instances where the other party may suffer or be subjected to some prejudice where the Rules are not followed, as in this case, Onwuanumkpe v Onwuanumkpe (1993) 8 NWLR (pt 310) 186, 205. In this case, the laid down procedure was not followed before the appellant’s processes were set aside on the oral observation of the defendants’ counsel.
He submitted that the lower court had no discretion to allow the oral observation pursuant to which the appellant’s processes were set aside because the provision of Order 4 Rule 2 (2) is mandatory, Olowokere v African Newspapers (1993) 5 NWLR (pt. 295) 583, 600. He took the view that as the observation of the defendants’ counsel was not initiated by due process of law, the court was robbed of the necessary jurisdiction to set aside the processes, F.A.B. S LTD. v. Ibiyeye (2008) 14 NWLR (pt.1107) 375, 402.
Counsel further contended that under order 4 Rule 2 (1) of the High court Rules an application to set aside a proceedings or document for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The two conditions are mandatory. He urged the court to note that the two processes that were set aside were filed 17/10/06 and 20/2/07, whereas the “observation” of the defendants, counsel was made only on 2/6/08 on which day the court set them aside. There is a time lapse of 1 year 8 months and I year 4months between the day of filing of the documents and the day of counsel’s observation. He submitted that the “observation” was not made within reasonable time. He conceded that “reasonable time” is relative, but a complaint made after one year of the happening of an event was not made within reasonable time.
He urged the court to note that after the filing of the Amended Reply to statement of defence and defence to counter claim on 17/10/06, the defendants filed a motion on notice on 6/2/07 praying for an extension of time to file their pleadings. This motion in essence was an application for leave to amend their statement of defence and counter claim. Objecting to it would have served the purpose of further delaying the prosecution of the case. Hence the application was not opposed and same was granted. He explained that up till today the defendants have not filed the required amended processes with the necessary endorsements under Order 28 Rule 6. But it was in response to the amendment made to the Statement of defence and counter claim pursuant to that motion that the appellant filed the process of 20/2/07 which was also set aside by the court.
He canvassed the view that the “observation” of the defendants’ counsel was made after the defendants had taken a step in the proceedings after becoming aware of the alleged irregularity. It was after the appellant filed its amended Reply to statement of defence and defence to counter claim of 17/10/06 that the defendants filed their application of 6/2/07 to amend their statement of claim and counter claim. He submitted that they were deemed to have accepted the irregular processes and are thus stopped from raising the issue of defect, Eboh v Akpotu (1968) 1 All NLR 220,224; N.P. M. Co. Ltd v Companie Noga D’ Importation (1971) NMLR 232; Obembe v Wemabod Estates (1977) 11 NSCC 264 and Sonuga v Amadein (1967) 5 NSCC 71; (1967) 5 NMLR 71 where the Supreme court held that it cannot be right “for the defendant to take advantage of an irregularity he had himself accepted and acted on it without harm done to him,” and subsequently raise an objection.
He urged the court to hold that the observation of the defendants, counsel and the consequent Ruling were exercises in technicality, reliance upon which leads nowhere except the perpetration of injustice. The Ruling did not in any way aid or advance the course of justice. He submitted that it is not justice for a party who has knowledge of a document for more than one year to be allowed to complain of an alleged irregular filing or for the court to begin to insist on the payment of penalty when for all purposes both the court and the other party in the case had accepted the document. There is no gainsaying that to now insist on the appellant filing a motion and paying penalty at the rate of N100 per day from october, 2006 (when the order to amend was made), will only occasion hardship and injustice on the appellant, citing Salami v Bunginimi (1998) 9 NWLR (pt. 565) 235,243, the Supreme court held that one of the welcome changes that have taken place in Nigerian courts is the shift from technical justice to substantial justice; also, Famfa oil Ltd v AG. Federation(2003) FWLR (pt.184) 195, 205 -206.
He urged the court to set aside the Order of the lower court delivered on 2/6/08 and re-instate the Amended Reply to Statement of Defence and Defence to Counter Claim and the Further Amended Reply to the Statement of Defence and Defence to counter claim filed on 17/10/06 and 20/2/07, respectively.
Counsel for the first and second respondents, also adopting and relying on their Brief, noted that contrary to paragraph 3 of the facts stated by the appellant at page 1 of her brief of argument, it was on 11/7/2006 that the appellant filed an application to amend her writ of summons, Statement of claim and Reply to statement of Defence and Defence to counter claim and not 11/7/07 mentioned in appellant’s brief of argument, citing paragraph 3 of the affidavit contained at page 261 of the record of appeal.
He observed that when the case came up on 22/11/2006, counsel to the first and second Respondents herein (defendants at the lower court) drew the attention of the learned trial court to the fact that the first and second respondents could not file their own consequential amendment because the appellant’s Amended writ of summons and statement of claim were defective having not be accompanied by witnesses statement of oath as required by Kwara State High court (civil Procedure) Rules, 2005. He noted that the appellant did not serve the corrected amended writ of summons and amended statement of claim on the Respondents until 5/12/2006, citing pages 261 262 of the record of appear particularly paragraphs 4 and 6 of the affidavit contained therein, [also pages 428 – 428 of the record].
The respondents, also, filed their statement of defence and counter claim vide a motion on notice on 6/2/2007 which was moved and granted on 7/2/2007.
He noted that on 2/6/08, the lower court had struck out the appellant’s Amended’ Reply to Statement of Defence and Defence to Counter Claim as well as Further Amended Reply to Statement of Defence and Defence to Counter Claim on the ground that the processes were not properly filed, same having been filed out of time without leave of the court and without payment of necessary penalty fee as required by the rules of the Court and the appellant’s counsel conceded to the fact that the processes were filed out of time without leave of court or payment of penalty fee, [pages 427 -428 of the record of appeal].
He explained that on 2/8/2008, the respondents’ counsel, Dr. J. O. Olatoke, made an observation about the processes filed by the appellant on 17/10/2006 and 20/2/2007, respectively, to the effect that the one filed on 17/10/06 was filed pursuant to the order of the lower court made on 9/10/06 but the process was filed without leave of court and without payment of penalty fee having not been filed within time allowed by the rules of the lower court.
He noted that pursuant to the facts stated above, the appellant’s counsel submitted that they still had their original Statement of Claim in court and that they were ready to go on with the case. PW2 was then called to testify and was cross examined by the Respondents’ counsel, citing pages 429-430 of the record.
He further explained that before 6/10/2008, when this case came up before the lower court for continuation of hearing, the appellant filed another application seeking for leave of the lower court to amend the Reply to Statement of Defence and Defence to Counter – Claim, the same application which has been previously made by the appellant and granted by the court on 9/10/2006.
It was this subsequent and similar application of the appellant that the respondents opposed on the ground that it constituted an abuse of court process and in a considered ruling delivered by the learned trial Judge on 21/01/2009, the appellant’s application was refused and dismissed. Against the said ruling, this appeal emanated.
He submitted that the learned trial judge was right, proper and justified when he struck out or set aside the purported Amended Reply to Statement of Defence and Defence to Counter Claim and Further Amended Reply to Statement of Defence and Defence to Counter Claim filed by the appellant herein on 17/10/2006 and 20/02/2007, respectively.
He drew attention to page three (3) of her brief of argument where the appellant argued that under Order 4 Rule I (1) of the Kwara State High Court (Civil Procedure) Rules, 2005, an improper filing of the appellant’s processes as required by the rule is categorized as “non compliance” and conceded that the trial judge has the discretion to set aside either wholly (as the trial Judge rightly did in this case) or in part and proceedings or document in respect of which non compliance had occurred. In his view, this was an admission that the lower court’s ruling being challenged in this appeal was in line with the provisions of the rules of that Court, therefore, no further proof of argument was required to establish the accuracy or correctness or that ruling, citing section 75 of the Evidence Act, Cap E14, L.F.N., 2004; Nwankwo v Abazie (2003) 12 NWLR (pt. 834) 381, 417 paragraph D; Okoeobor v Police Council (2003) 12 NWLR (pt. 834) 444, 471; 472; 478 and 483.
On the submission that by Order 4 Rule 2 of the Rules of the lower court, the respondents can only raise an objection to non compliance with the rules by filing summons or motion on notice, he submitted that the law will not allow a party to approbate and reprobate at the same time. Since the appellant had conceded that the trial judge was vested with the power to use discretion under Order 4 Rule 1 to set aside any proceeding or document wholly or in part, he cannot turn round to make contrary submission.
He submitted, in the alternative, that Order 4 Rule (2) of the Rules of the lower court can be dispended with by a party who intends to raise an objection to the competence of a suit or court process where the objection is premised on an issue or a point of law or on undisputed facts which both parties and sometimes, the court accepted. In such a situation, the observation or objection can be made orally. Thus, the objection or observation of Dr. J.O. Olatoke made at the lower court on 2/06/2008, orally, which culminated in the setting aside of the appellant’s court processes under consideration, was proper, Emesim v Nwachukwu (1999) 3 NWLR (pt. 596) 590, 604.
He submitted that the issue of proper or improper filing of a court processes is an issue of law and all the facts surrounding the improper filing of the appellant’s court processes under consideration are undisputed. In fact, the appellant conceded to the fact that the said processes were not properly filed. She only argued that her omission should be treated as mere irregularity which is not, citing page 415 of the record of appeal.
Based on the above ruling of lower court, the appellant’s counsel submitted thus:
“We still have our original statement of claim before the court and we want to go on with the hearing.” Thereafter, appellant called PW2 who testified based on the original Statement of Claim, [page 415 of the record]. He submitted that the observation/objection was well taken and the ruling was well delivered. He prayed the court to hold that Order 4 Rule (2) of the rules of the lower court relied upon by the appellant was misconceived and that the cases which the appellant cited at page 4 of her brief of argument were irrelevant to the case at hand.
In response to the submission of the appellant at page 4 of her brief to the effect that the observation/objection of the learned counsel to the respondents was not made within reasonable time, he took the view that the contention holds no water at all as an objection on want of jurisdiction can be raised at any time, even for the first time on appeal.
He, submitted that a defect in court process affects the jurisdiction of court to adjudicate on any matter premised on such a defective court process , Gafar v Govt. of Kwara stare (2007) 4 NWLR (pt. 1024) 375, 403; odukwe v. Achebe (2008) 1 NWLR (PT. 1067) 40, 53.
He took the view that it cannot be right to submit that the respondents did not raise their observation/objection timeously or that they had waived their right to so do as parties cannot, by consent, confer jurisdiction on the court, Dairo v U.B.N. & Anor (2007) 7 S.C. (pt.II) 97, 111. He disclaimed the applicability of the authorities cited.
He submitted further that issue of defect in a court process, such as filing a court process out of the prescribed time without the leave of court or without payment of necessary fee, is a fundamental defect of fundamental irregularity that goes to the root of the case and it is more than a mere technicality. He observed that the appellant conceded that the two processes under consideration were filed out of time without payment of penalty fee which is mandatory under order 10 Rule 5 of the rules of the lower court but argued that it will impose hardship upon her to pay penalty of N100.00 per day for the period in which she was in default. He contended that the reason adduced by the appellant was unknown to law and she does not deserve any sympathy from this court at all. The apex court has said it time without number that any court process filed out of the prescribed time without the leave of the court is deemed not to have been properly filed and robbed the court the requisite jurisdiction to act or rely on same. Consequently, same must be struck out as rightly done by the lower court in this case, U.B.N. Ltd v Odusote Bookstores Ltd (1995) 9 NWLR (pt 421 ) 558, 576.
He submitted, finally, that the question of jurisdiction cannot be waived at all no matter how late it was raised, Oyebade v Ajayi (1993) 1 NWLR (pt. 269) 313, 330.
He contended that where a court lacks jurisdiction, it cannot exercise any discretion; nay more, it cannot exercise any inherent power, Awoniyi v Registered Trustees of AMORC (2000) 10 NWLR (PT. 676) 552,540
In his reply, appellant’s counsel argued that Emesim v Nwachukwu (supra) is not appropriate to the case at hand. That case was decided on the Enugu State High Court Rules which are not the same as the Kwara State High Court Rules 2005.
Order 4 Rule 2 of the High Court Rules of Kwara State expressly provides that an application to set aside for irregularity can be brought by either of the following two methods:
i. By summons, or
ii. by motion on notice.
In response to the submission that a defect in court process affects the jurisdiction of the court to adjudicate in any matter premised on such a defective process, he contended that it was an erroneous submission. According to him, the issue of irregular filing of Reply to Statement of Defence does not go to the jurisdiction of the court. He explained that the Reply to the Statement of Defence did not originate the suit. Irregular filing of the process has nothing to do with the competence of the suit because it is only the particular process that is called into question not the entire suit. The irregular filing of the Reply cannot have retrospective effect on the competence of the suit. This point is, specifically, made by Order 4 of the High Court Rules of Kwara State which is applicable in the instance, Anyawoko v. Okoye (2010) 5 NWLR (pt.1188) 497, 513 -514.
RESOLUTION OF THE ISSUE
In its Ruling of June 2, 2008, the lower court held, inter alia; The main complaint of the learned counsel for defendant in my view is that the first process was filed out of time, the attention of the court was drawn to it and the court permitted the claimant to go and pay the penalty for filing the papers out of time, this provision of the law stipulating payment of penalty is Order l0 Rule 5 of the court’s Rules. The court exercised its discretion by permitting the claimant to go and regularise its position by complying with the rules of this court under Order 5 rule 5… [page 1 of the Ruling of June 2, 2008]
As already shown above, the Claimant’s main grouse against both the said observation of the defendants’ counsel and the Ruling prompted by the observation, is that it [the observation] was not made in tandem with Order 4 Rule 2 (1) and (2) of the 2005 Rules. According to counsel for the appellant, the observation was not made either by motion or summons. What is more, it was made, when the defendants had taken steps in the proceedings and after an inordinate delay.
To be able to attend to the principal agitation of the appellant in this first issue, it would, I suppose, be necessary to deconstruct the pivotal questions on which the said issue gravitates. The first is the question which this court raised suo motu and called for the intervention of counsel by way of further address, namely, whether under Order 4 rule 2 the only permissible mode of raising objection was by motion or summons.
MODE OF APPLICATION UNDER ORDER 4
Expectedly, this question elicited divergent submissions from counsel. In his further address, counsel for the appellant contended that motions or summons are the exclusive modes of application for setting aside proceedings or documents for irregularity under the above Rule. The order, in his view, gives the applicant two choices only. The language employed does not permit the introduction of any other method, citing the maxim “the express mention of one thing is the exclusion of others”. Thus, under the rules, oral applications cannot be entertained. Above all, he further argued, the motion or summons must indicate the grounds of the objection.
Counsel for the respondents took the view that the distinction between procedural and substantive jurisdiction is that defects in procedural jurisdiction can be waved whilst defects in substantive jurisdiction cannot be waved. In his view, the issue of jurisdiction raised before the lower court falls under the substantive jurisdiction that cannot be waved because parties cannot confer jurisdiction by consent. He contended that the provisions of Order 4 (supra) give the trial court the discretion to determine what kind of irregularity to be considered as minor and which irregularity to be considered as fatal. In his view, the court, rightly, decided that that the irregularity complained of in this matter is fundamental and not minor. Now, Order 4 Rule 2 (1) and (2) of the 2005 Rules read as follows:
2 (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party, applying has taken any fresh step after becoming aware of the irregularity.
(2) Any application under sub-rule (1) may be made by summons or motion, and the grounds of objection shall be stated in the summons I have no hesitation in finding in favour of the eloquent adumbrations which the counsel for the appellant made on this point. The said Order 4 rule 2 is one of the devices in the new regime of the Rules of the lower court designed to checkmate the old practice where counsel most, incessantly, stalled court proceedings by objections: objections which were often intended not only to spring surprise on the adversary but to filibuster proceedings.
Hence, under the said Order, any adversary who intends to object to any process must either do so by way of motion or summons. That is not all. To attenuate the penchant for frivolous objections aimed at irritating the adversary, there is the additional requirement that such an objector must set forth the grounds of the objections. Where such grounds are not set out, such an objection would not even be entertained as the motion or summons would be incompetent. A fortiori, this order was not intended to brook an oral objection.
I, therefore, hold that on a proper construction, the intendment of Order 4 rule 2, in the con of the philosophy of the new Rules of the Kwara State High Court, is that an intending objector should indicate the grounds of his objections. The sole purpose is not only to intimate the opponent of the nature of the issues to be canvassed but to satisfy the court that such an objection is one that merits the expenditure of the court’s precious time in attending to. The effect is that the “observation” of counsel for the respondents at the lower court on June 2, 2008 was not well-taken. The court should have discountenanced it as being improper. In a word, the only permissible mode of raising objections under Order 4 rule 2 is either by way of summons or motions: which processes must, clearly, set out the grounds for the objection(s). This must be so for, as Oladipo, for the appellant, rightly submitted, the auxiliary verb “may” employed in Order 4 Rule 2 (2) (supra) is mandatory. It does not admit of any discretion.
Interestingly, the above provisions are in pari materia with Order 5 Rule 2 (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2004. Explaining the requirements of the-corresponding provisions in the above Lagos Rules, it has been said that:
It is incumbent on a party complaining of irregularity to ensure the following: make the application within a reasonable time and before taking any fresh step after becoming aware of the irregularity, citing Odua Investment Co Ltd v Talabi (1997) 7 SCNJ 600; apply by way of summons or motions; state the grounds of objection in the summons or notice of motion; file written address in support of the application See, M. Banire; A. Basiru and K. Adegoke, The Blue Book: Practical Approach to the High Court of Lagos State (Civil Procedure) Rules (Second edition) (Lagos: Ecowatch Publications (Nigeria) Limited, 2008) 55. Indeed, there is considerable force in the opinion of Aguda that:
An application to set aside for irregularity must be made within a reasonable time. This rule was taken from RSC 0.2, r.2 (England) under which it has been held that it will be too late to make such an application after a year to set aside service out of the jurisdiction of the court (Reynolds v Coleman (1987) 36 Cg. D. 453).
See, T. Akinola Aguda, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, (2nd Edition), page 13 paragraph 3.09; also, Kalu v Odili & Ors (1992) 6 SCNJ 76, 101-102.
In my humble view, counsel must brace up to the procedural revolutions engendered in the new regime of rules: a regime that looks with askance at the discredited antics which involved the deployment of “the whirligig of technicalities” to slaughter substantive issues in a “fencing game in which parties engage[d] themselves in an exercise of outsmarting each other”, per Aniagolu JSC in Afolabi v Adekunle (1983) 2 SCNLR 141, 150; see, generally, C. C. Nweze, Redefining Advocacy in Contemporary Legal Practice: A Judicial Perspective (Lagos: Nigerian Institute of Advanced Legal Studies, 2009) 2-5.
OBJECTIONS TO PROCEDURAL AND SUBSTANTIVE JURISDICTIONS In response to the issue raised by the court on the distinction between procedural and substantive jurisdictions, counsel for the appellant contended that the submission in paragraph 4 of the respondents’ Brief to the effect that the objection leading to the striking out of the appellant’s processes need not be made within a reasonable time is not a valid argument in so far as the objection was premised on non-compliance with procedure. He explained that the respondents’ complaint was that there had been a breach of the Rules. Thus it was an objection to the procedural jurisdiction of the court and had nothing to do with the substantive jurisdiction of the court. The remedy, if there is any breach, lies within the Rules, precisely, Order 4 Rule 2. Such an irregularity may be waved or acquiesced to. An error or omission to substantive law cannot be waved, citing Eboh v Akpotu (1968) 1 All NLR 220; Abubakar v Yar’Adua (2008) All FWLR (pt 404) 1409, 1449-1450.
Learned counsel for the respondents had contended that an objection to jurisdiction can be raised at any time. This submission can be found on paragraph 4 of the Brief. Generally speaking, it would be correct to say that an objection to the jurisdiction of a court can be taken at any time, even during appeal proceedings. The law on this point is so well-settled that one does not need to cite any authority. Suffice it, however, to cite Madukolu v Nkemdilim (1962) 1 All NLR (pt 4) 587; Utih v Onovivwe ( 1991) 1 NWLR (pt 166) 166; (1962) 4 SCNJ 25; Odofin v Agu (1992) 3 NWLR (pt 229) 350; (1992) 3 SCNJ 161; Agbi v Ogbeh (2006) All FWLR (pt 329) 941; (2006) 11 NWLR (pt 990) 65; Yaro v Arewa construction Ltd (2007) 17 NWLR (pt 1063) 333; (2008) All FWLR (pt 400) 603; Odunze v Nwosu (2007) All FWLR (pt 379) 1295; (2007) 3 NWLR (pt 1050) 1, as authorities for the view that an objection to the substantive jurisdiction of the court can be taken at any stage of the proceedings; see, also, Obande F. Ogbuinya, understanding the concept of Jurisdiction in the Nigerian Legal system (Enugu: SNAAP Press, Ltd, 2008) passim.
However, as settled on the authorities, there is a clear distinction between jurisdiction over subject-matter, which can be raised at any stage of the proceedings; and procedural jurisdiction which can only be sustained if it is raised timeously. In Kossen (Nig) Ltd v savannah Bank Nig Ltd (1995) 9 NWLR at pt.420 439 at 451 paragraph D, Mohammed JSC had this to say:
… there is jurisdiction over subject-matter which is unlimited and covered by the 1979 constitution and procedural jurisdiction…. procedural jurisdiction could be waived or acquiesced in by the affected party…where a wrong procedure was adopted in commencing a suit, or an action, and no objection to the procedure was timeously raised by the opposite party then the proceedings based on such wrong procedure is valid, citing Adebayo v Johnson (1969) 1 All NLR 176 at 190 – 191.
As a corollary, where a party is apprised of any breach of the rules and he glosses over it and takes a step in the proceedings, he is deemed to have waved the breach of the rules of court. See, Adebayo v Johnson(supra); Kossen (Nig) Ltd v savannah Bank Nig Ltd (supra). In Okumagba Eboh and Ors v Ogbotemi Akpotu (1968) 1 All NLR 220 at 221 it was held that:
It is not every irregularity that can nullify the entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case, it was much too late for the other party to complain about such irregularity.
As shown by Oladipo, counsel for the respondents filed some processes [precisely, they filed a motion on notice on February 6, 2007 praying for an extension of time to file their pleadings] in response to the so-called defective processes of the appellant at the lower court. I agree that, in the circumstances of this appeal [where the respondents took steps in the proceedings and there was a lapse of one year and eight months and one year and four months, respectively, before the said “observation”], the respondents would be deemed to have waived the breach, Kossen (Nig) Ltd v Savannah Bank Nig Ltd (supra); Okumagbe Eboh and Ors v Ogbotemi Akpotu (supra).
However, that is not all as would be shown subsequently in this judgment. The question here is not even the issue of non-payment of filing fees. It is common ground, as Oladipo, for the appellant, pointed out, that the fees were, indeed, paid for. There is a subsidiary issue, namely, the question of the propriety of an application of an applicant who, as alleged by the respondents, would appear to be circumventing the penalty provisions of the Rules which, according to the lower court, can be found in Order 10 Rule 5 rule. We shall deal with this later in this judgment.
APPLICABILITY OF SECTION 75 OF THE EVIDENCE ACT
The other issue raised by the court need not delay us. The simple answer is that section 75 of the Evidence Act was, inappropriately, cited by Abubakar for the respondents. I entirely agree with Oladipo that the entire submissions on paragraph 4.2 of the Respondents. Brief in relation to the submissions of the appellant’s counsel on page 3 of the appellant’s Brief, are misconceived. I entertain no doubt that the appellant’s counsel was correct in his interpretation of order 4 rule 1 (1) of the rules of the lower court. The concession of counsel in the said page 3 of the appellant’s brief had nothing to do with the sort of admissions which section 75 of the Evidence Act deals, with.
Section 75 (supra) relates to formal admissions made in either a Statement of claim or statement of Defence. Facts so admitted require no further proof, Owena Bank Nig Plc v Adedeji (2000) 1 WRN 10, 27. Even as such, for such an admission in the pleadings to be acted upon, positively, the court is duty bound to consider the totality of the pleadings of the party said to have made it. In such a situation, the law does not allow the fragmentation of paragraphs of the pleadings. As such, no paragraph can be considered in isolation. All the paragraphs must be read in conjunction to enable the court properly ascertain the issues joined in the pleadings, NBC v Oboh (2000) 9 WRN 114, 125.The main purpose of this kind of admission is to render the proof of admitted matters unnecessary, Kentik Holdings Ltd v R. E. Investments Ltd (l997) 11 NWLR (pt 529) 43g; see generaily, C. C. Nweze, Contentious Issues and Responses in Contemporary Evidence Law in Nigeria (volume one) (Enugu: IDS, UNEC, 2003) 162; also, S. T. Hon, Law of Evidence in Nigeria; Substantive and Procedural (port Harcourt: pearl publishers, 2006) 78 et seq; also, T. A. Aguda, Law and Practice Relating to Evidence in Nigeria (2nd ed) (Lagos: MIJ Professional publishers, l99g) 196 et seq.; also, Y. Osinbajo, cases and Materials on Nigerian Law of Evidence (Lagos: Macmillan Nigeria Publishers Ltd, 1992) 58 et seq. In all, therefore, I endorse Oladipo’s contention that the entire submissions in paragraph 4. 2 of the respondents’ brief are misconceived.
Now, in paragraph 4.14 of the Respondents’ Brief, counsel for the respondents took the view that the said observation which Dr olatoke made at the lower court was a point of law. The short answer can be found in the view of Ogbuagu JSC who, in Akpaji v Udemba (2009) 6 NWLR (pt1138) 545, 562, held that “it is a question of fact whether fees are paid in respect of a document brought to court”, citing, and approvingly adopting Dike v Okorie (1990) 5 NWLR (pt 151) 418; Mohammed v Musawa (1985) 3 NWLR (pt.11) 89; Government of Imo state v Orisakwe (unreported appeal no. FCA/109/82 of July 2, 1985. Abubakar could, therefore, not be right in his contention on this point.
NON-PAYMENT OF FILING FEE
The question of non-payment of filing fees which the respondents canvassed, and which this court expressly sought further elucidation on, expectedly, also provoked divergent reactions from counsel. This was to be expected having regard to the fact even the distinguished and august jurists of the apex court are not unanimous on the point. The result is that, regrettably, the law on the question of non- payment of filing fees has remained, somewhat, recondite. This is so because of the unresolved tension in the divergent views between what may be termed the liberal and restrictive [or structural constructionist] positions evident in the judgments of the Supreme Court.
On the one hand, the structural constructionist view holds that non-payment of filing fees is not a matter of procedural jurisdiction but one of substantive jurisdiction. As such, this view maintains that the jurisdiction of the court to hear and determine any matter is invoked by the “filing of the appropriate process in the registry”: an expression which means payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated Registrar of the court concerned. The implication is that when a process is not duly filed before the court, it does not exist in the eyes of the law and as such the jurisdiction of the court cannot be said to be properly invoked. The decisions that fall under this category include: O.O.M. F. Ltd v N.A.C.B. Ltd (2008) 12 NWLR (pt 1098) 412, 427- 428; Okolo v UBN (2004) 3 NWLR (pt 859) 87; Moore v Tayee (1934) 2 WACA 43.
On the other hand, there is the liberal view which holds that non-payment of filing fees has nothing to do with the jurisdiction of the court to entertain the action. According to this view, failure to pay filing fees does not raise any issue of jurisdiction. As such, the failure to fulfil the provisions of the High court Rules in that regard is a mere irregularity which when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way. The cases here are legion: they are many: Akpaji v Udemba (2009) 6NWLR (pt 1138) 545, 562; approvingly citing and relying on the decision of this court in ACB Ltd v Henshaw (1990) 1 NWLR (pt 129) 646, 650; Sonuga v Anadein (1967) NMLR 77, 79; Ezomo v oyakhire ( 1985) 1 NWLR (pt 2) 195, 202-203; Noibi v Fikolati and Anor (1987) 1 NWLR (pt 52) 619,632; (1987) 3 SCNJ 14; Alhaji Saude v Abdullahi (1989) 4 NWLR (pt 116) 387, 405-406; (1987) 7 SCNJ 216.
This liberal view is anchored on a safeguard which Iguh JSC broached in onwugbufor and ors v okoye and ors (1996) 1 NWLR (pt 424) 252, 291-292; (1996) 1 SCNJ 1, 36; (1996) 34 LRCN 1 for ensuring the sustenance of such a process filed without the requisite fees.
According to this view, “the usual remedy is an order by the lower court that the appropriate fees or any short fall be paid. [This is so for] it has nothing to do with the jurisdiction of the lower court to entertain the claim”, Akpaji v Udemba (supra) 562 para C. In furtherance of this liberal approach, where inadequate fees were paid for a writ of summons, the trial court is within its right to allow the plaintiff time to pay the balance of the fees, Lawal and Anor v odejimi and Anor (1963) All NLR 569, 570, approvingly adopted and applied in Akpaji v Udemba (supra) 562 para E; also, state v Ugbor and Anor (1979) 1 MSLR 521, 523 approvingly adopted and applied in Akpaj v Udemba (supra) 562 para E. The rationale for the invocation of this remedial action is that the object of the provisions of payment of filing fees in the said Rules is to protect the public revenue, see Lawal and Anor v odejimi and Anor (1963) All NLR 569, 570, approvingly adopted and applied in Akpaji v Udemba (supra) 563 para C.
Instructively, the two divergent positions of the supreme court anchor their reasoning on the same case of onwugbufor and ors v okoye and ors (1996) 1 NWLR (Pt 424) 252,291-292; (1996) 1 SCNJ 1, 36; (1996)34 LRCN 1, where Iguh JSC, after adopting the general proposition that payment of filing fees is a condition precedent necessary to the exercise of the jurisdiction of the court, added a rider thus:
If the default in payment is that of the plaintiff, the claim which such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly (italics foe emphasis) supplied foe emphasis)
In Akpaji v Udemba (supra) 563 para C, Ogbuagu JSC threw further light on this safeguard. Listen to His Lordship:
So, it can be seen that there is a rider so to speak. The appropriate remedial action was the said order of the court below even without the said motions of the respondent afore-stated. But in any case, not only did the respondent apply for leave of the court below to pry if,” appropriate fees, it exhibited the receipt of the payment In this appeal, oladipo, rightly, argued that where there are conflicting decisions of the Supreme court’ this court can choose any of them, citing GTB Plc v FADCT (2007) 7 NWLR (Pt.1033) 307, 325. In my humble view, this submission cannot be faulted’ However, with profound respect, these authorities are not even relevant to the issue in this appeal. It is common ground, as oladipo for the appellant noted, that the filing fees on the impugned processes were, indeed, paid for at the lower court.
In the said Ruling of June 2, 2008, the court expressed the view that “…this provision of the law stipulating payment of penalty is Order 10 Rule 5 of this court’s Rules.,.” [page 1]. It went further and stated thus” in the circumstance as this we cannot say the payment of the penalty is the ultimate aim of order 10 Rule 5, the application for extension of time is a must…[page 2]
Now, it must be noted that the application granted on October 9, 2006, an application which was fired on October 17,2006, being an application for the amendment of the Writ of summons; Statement of Claim and Reply to the statement of Defence and Defence to the counter claim, was pursuant to order 28 of the 2005 Rules of the rower court. Indeed, the defendants, application of February 2, 2007 for the amendment of the Statement of Defence and counter Claim was within the ambit of the said order 28 an order which stipulates the sort of requisite endorsement that should be filed with the amended processes, order 28 Rules 3.
It would appear that the lower court and both counsel for the claimant and defendants lost sight of the distinction between order 10 Rule 5 and order 28. The rule of interpretation’ expressed in the old Latin maxim, is generalibus specialia derogant (special provisions derogate from general provisions), schroder and co v Major and co (Nig) Ltd (1989) 2 SCNJ 210; (1989) 2 NWLR (pt 101) 1. In this case, order 10 rule 5 is a general provision. On the other hand, order 28 rule 4 is a special provision. It deals specifically with the time; the limitation of the period for amendment; penalty for default and the status of the order after the limitation period’ under order 28 Rule 4, an applicant, who has moved the court for an order to amend his processes, where the court did not set any time limit, has a cumulative number of fourteen days [that is, the first “seven days from the date of the order… and “additional seven days when the order shall lapse.”
The lower court allowed the defendants’ application of February 2, 2007, that is the application for the amendment of the statement of Defence and counter claim. It would appear that sequel to the above order, the appellant opted to file consequential amendments to the above processes, hence, it filed the said further Amended Reply to the statement of Defence and Defence to counter claim. In my humble view, these processes, being processes filed in response to the defendants, application for amendment, were properly filed as consequential amendments which the claimant was entitled to file. I do not see the relevance of order 10 Rule 5 here. This is more so when order 28 deals specifically with amendments. As such, the general provisions contained in order 10 do not apply to amendments under order 28 (supra). It is for this reason that we stated earlier that the issue of filing fee was not relevant here so also are the Supreme Court decisions on the effect of non-payment of filing fees. As shown above, the rower court, in its said ruling, proceeded on the premise that the appellant was circumventing the penalty provisions of the Rules which, according to it, can be found in order 10 Rule 5 of the 2005 Rules, we have shown that, by the operation of the maxim- generalibus specialia derogant (special provisions derogate from general provisions, Schroder and Co v. Major and Co (Nig) Ltd (1989) 2 SCNJ 210; (1989) 2 NWLR (pt.101) 1- the applicable Rule, which the court ought to have considered in dealing with the matter, was order 28 Rule 4 (an order, specifically, devoted to amendment and the kind of requisite endorsements that should accompany the amended processes etc) and not Order 10 Rule 5 which deals, generally, with computation of time.
In effect, the said court invoked inapplicable principles of inapplicable provisions of the Rules to invalidate the processes filed on October 17, 2006. This, in my humble view, was a wrong approach. The court should have employed order 28 Rule 4 as a touchstone for determining whether the processes were properly filed or not and hence whether the penalty provisions of the said Rule 4 of order 28 on “failure to amend after order” were applicable. It faired to do so. It glossed over the import of order 28 Rule 4 on the processes, completely. In consequence, I hereby enter an order vacating the said ruling.
ISSUE 2:
Was the trial judge right in refusing the claimant’s application for leave to amend its original Reply to statement of defence and defence to counter claim.
On this issue, reamed counsel observed that on6/10/08, the Claimant’s counsel moved ah application for leave to amend the existing Reply to Statement of Defence and counter claim. The motion was filed on 7/7/08. Ruling on the motion was not delivered until 21/1/09. The application for leave to amend was refused. The main reasons for the refusal of the application as given by the lower court are that:
1. There is an existing order for amendment of the Reply to statement of Defence and Defence to counter claim which the claimant has not utilized.
2. The claimant cannot file another application for leave to amend under the Rules.
3. The only way open to the claimant is to bring an application for extension of time to comply with the said “existing order to amend” after paying the mandatory penalty of N100.00 per day from the day of failure to comply.
He urged the court to note that by its Ruling of 2/6/08, the lower court had set aside the Claimant’s amended Reply to statement of defence and Further amended Reply to statement of defence and defence to counter claim on the ground that both were filed out of time. He cited order 28 Rule 4 of the High court civil procedure Rules.
He urged the court to note that the alleged existing order for amendment was made on 9/10/06. Under order 28 Rule 4, the order shall lapse after fourteen days of the order, i.e. seven days from the date of the order and an additional seven days. Therefore it is not correct to say that there was an existing order in favour of the claimant. The order of 9/10/06 lapsed on the 23rd day of October, 2006. When a matter, thing or order lapses, the effect is that the thing, matter or order becomes ineffective.
He submitted that, although the framers of the High court Rules 2005 have used a different phraseology from order 26 Rule a (Uniform Rules) and order 25 Rule 3 of Lagos State, the rules have the same effect in the event of failure to amend within time. As at 2/6/08, when the lower court set aside the claimant’s Amended Reply to statement of Defence and Further Amended Reply to Statement Defence and Defence to counter Claim, the order to amend had lapsed and become void. The only option open to the Claimant was to file another application for leave to amend.
He submitted that reference to order 10 of the High court Rules 2005 is misconceived because order 28 Rule 4, specifically, provided that the order shall lapse. Order 28 is a specific provision regarding amendments while order 10 is a general one. The Law of interpretation is that a general provision will give way to a specific one. Order 28 has provided the period of extension and the repercussion for not amending within the specified period, Orubu v. NEC (1988) 12 SCNJ 256, 349. He submitted that order 10 cannot be imported to interpret order 28 of the Rules.
He took the view the claimant’s motion of 7/7/08 for leave to amend was proper.
It was brought to enable the Claimant:
1. Bring pleadings in line with the evidence already on the record
2. Incorporate relevant facts which were either inadvertently omitted or not correctly represented by counsel in the Reply to statement of defence and defence to counter claim.
3. Put all the facts before the court to enable it fully and finally determine the right of the parties.
He explained that the application was supported by an affidavit to which was attached the proposed amended process. The claimant’s counsel also filed an address. However, the lower court failed to consider either the affidavit in support of the motion or the submissions of counsel in the address. The lower court neglected to consider whether the applicant had satisfied the established principles for granting an application for leave to amend. Rather, the court insisted on the technical point that the claimant could only bring an application to revive a dead order and pay penalty of N100.00 per day from October 2006.
He submitted that the lower court failed to consider the relevant principles for granting an application for leave to amend. Rather she latched on irrelevancies to refuse an application which ordinarily should be granted as of course considering the facts in the affidavit, the stage of the case and overall interest of justice. He argued that a discretion which is exercised on irrelevant considerations is one that has not been exercised judiciously or judicially, Lauwers Import-Export v Jozebson Ltd (1988) 3 NWLR (pt. 83) 429, 448-449.
He noted that the Claimant’s case has not closed. No prejudice whatsoever would have been occasioned to the court or the defendants if the application was granted. Besides the amendment sought in October 2006 is not the same with the amendment sought in the application filed on 7/7/08. Granted that they are similar, they are not the same. The grounds of the application differ. There was, therefore, no justifiable reason why the court refused the application except the satisfaction of using technicality to cause hardship and embarrassment for the Claimant.
So many years ago the apex court in Nigeria laid it down that “Rules of court are made to enhance the easy administration of justice and to minimize delay in the disposal of litigations brought before courts, and for that reason, they should not be manipulated and used to frustrate the purpose and the ends they are set to achieve,” Montubi v SCC LTD (1986) 2 NWLR (pt. 21) 158, 164; Panache Communications v Aikhomu (1994) 2 NWLR (pt. 327) 420, 431. The rulings of the lower court did not have regard for this principle in the least sense. The ruling of 21/1/09 has not in any way interpreted the Rules of court to enhance easy administration of justice or indeed minimize delay. The end it is serving is just to frustrate the appellant in the prosecution of her case. He urged the court to set aside the Ruling of the lower court of 21/1/09 and allow the amendment.
Counsel for the respondents prayed the court to answer the question in this issue in the positive as the refusal of the lower court to grant the application was in line with the existing law. He observed that it is in not in dispute between the parties that the appellant had earlier applied for leave to amend her original Reply to statement of Defence and Defence to counter claim and the lower court granted the leave on 9/10/2008. He noted that from 9/10/2008, when appellant was granted leave for amendment, she was under obligation to comply with the provisions of Order 28 Rule 4 of the rules of the lower court.
He explained that the appellant, after being granted leave by the lower court to amend her process, failed to amend her process as required by order 28 Rule 4 (supra) and when she discovered that she was, already, out of time to amend and to file her court process, she ought to have taken the advantage provided under Order 10 Rule 5.
He contended that the appellant knew that she was, already, out of time in complying with the order o the lower court made on 9/10/2008 granting her leave to amend her court process, but was of the view that the penalty she was going to pay may be a little higher than she was expecting (due to her own negligent conduct). She, therefore, tried to ignore the provisions of Order 28 Rules 4 and Order 10 Rule 5 by filing the same application without payment of penalty fee, citing page 6, paragraph 1 of the appellant’s brief of argument.
He explained that the appellant was only trying to evade the penalty imposed by the rules of the lower court for her being indolent towards the order of the lower court. He noted that equity aids the vigilant and not the indolent.
He submitted that the appellant ought to have fired a motion for extension of time to file the amended court process in respect of which the rower court had granted leave on 9/10/2008 and pay the necessary firing and penalty fee thereof instead of ignoring the order of the lower court previously made in her favour. Courts, in his submission, will not give audience to any party who refuses to implement any order lawfully made by the court, Ashugaba v U.B.N. plc (1999) 11 NWLR (pt. 627) 459, 478.
He further contended that the appellant has misconstrued the provision of order 28 Rule 4 at page 7 of her brief of argument as the rule talks about the time limit within which the appellant may file her amended court process and the time when the payment of penalty shat commence. The time the appellant was to fine her amended court process without payment of penalty fee is 14 days and when the said 14 days expires or lapses, then she must pay penalty fee before she can file the amended court processes. She failed to comply with the rules of the court and the order of the lower court, yet, she approached the court for solace. He urged the court to hold that the procedure adopted by the appellant is alien to our law; an abuse of court or judicial process. Courts do not exercise their discretionary powers to aid those who flout their orders, Ashugaba v U.B.N. Plc (supra) 481.
He noted also that on 2/6/2008, when the two incompetent processes fired by the appellant were struck out, she was given opportunity by the lower court to take another date to reconsider her position as to whether or not to withdraw the said two processes struck out, but she joined issue with the respondents and the lower court in its considered ruling struck out the two in competent processes on 2/6/08, [pages 413 – 421 of the record of appeal and pages 402 – 406 of the same record].
He submitted that the appellant, having joined issue with the respondents before the lower court on the competence or otherwise of those processes, and the lower court having ruled on the argument of both counsel and finally struck out the two processes, the appellant was stopped from re-opening the issue again, Abalogu v SPDC Nig Ltd (2002) 13 NWLR (pt. 837) 308, 335 paragraph A-E.
He, therefore, submitted that the cases which the appellant cited are not helpful to her case; rather they-add more strength to the case of the respondents.
He submitted that justice is not a one way traffic but is open to all parties and to the court itself. The court will not rewrite the law or input into it, what is not there just to assist any Party, INEC v P.D.P. (1999) 11 NWLR (pt. 626) 174, 195.
Finally, on 2/6/08 when the two learned counsel were present in court, the learned defence counsel, Dr. Olatoke made an observation about the processes filed by the clamant dated 20/2/07 and 17/10/06, respectively. He submitted that the one filed pursuant to the order of this court of 9/10/06, but it was filed without the leave of the court having failed to file the processes within time limit for doing so. That the only way out is to come under order 10 Rule 5 and failure to do so, the said processes are incompetent. The court ruled in favour of the defence counsel’s submission that when leave of court is required to file any process failure to obtain the leave renders the process filed without leave incompetent. The claimant’s counsel then informed the court that they still had their original statement of claim before the court and they were ready to go on. They, therefore, called their second witness, PW2, who testified and was rigorously cross-examined by the defence counsel.
He noted that the essence of quoting the above portion of the findings of the learned trial Judge is to show that justice was done to every party by the court and that the appellant was not diligent enough in her conduct which led to this appeal, therefore, she is caught by the doctrine of estoppel.
In essence, the appellant has not been shut out by the lower court from amending her processes; she was, only, told to follow the due process of law to do that, pages 430 and 43 and 431 of record. Based on the aforesaid, he prayed the court to resolve this issue in favour of the respondents.
RESOLUTION OF THE ISSUE
From the Ruling under consideration, it is obvious that the lower court took the view that Order 10 rule 5 was a remedial provision that could supplement order 28 rule 4. The problem with this formulation is that it glosses over the rule of interpretation where general and special provisions co-exist in a statute. It has long been established, both in England and Nigeria, that in a situation such as this, the applicable rule of interpretation should be that which is expressed in the old Latin maxim generalibus specialia derogant (special provisions derogate from general provisions), Schroder and Co v. Major and Co (Nig) Ltd (1989) 2 SCNJ 210; (1989) 2 NWLR (pt.101) 1.
In this case, Order 10 rule 5 is a general provision. On the other hand, Order 28 rule 4 is a special provision. It deals specifically with the time; the limitation of the period for amendment; penalty for default and the status or the order after the limitation period. In essence, Oladipo was right in his interpretation of the said Order 28 rule 4 to the effect that under this order, an order for the amendment of a process shall lapse after fourteen days of the order, that is, seven days from the date of the order and an additional seven days. Thus, under this order, a court cannot extend the period of fourteen days once it has lapsed. The implication is that the earlier order for amendment would be rendered otiose. The only option left for the applicant would be to entreat the court for a fresh order for amendment. As Aguda has, insightfully, pointed out: This Rule is taken from R.S C. O. 20 r. 9 (England, 1965). Its effect is that an order of an amendment lapses at the end of the period specified in the order or fourteen days after the order has been made unless the period is extended. The court has discretion to extend the time before period elapsed. It is however doubtful if the court has the power to extend the period once it has lapsed. If the amendment has become void, the applicant will be obliged to seek a fresh order of amendment See. T.A. Aguda, practice and procedure of the supreme court, court of Appeal and High Court of Nigeria (2nd ed) paragraph 27. 31, page 353.
In effect, the applicant was right to have resorted to the firing of a fresh application since the lower court’s order which, graciously, permitted the applicant to amend the said processes had lapsed by the effluxion of time as stipulated in order 28 rule 4. The issue of abuse of court process, which counsel for the respondents canvassed, did not, therefore, arise. In consequence, I hereby enter an order setting aside the ruling of the rower court dated January 21, 2009.The lower court shall hear and determine the application.
ISSUE 3:
Was the statement of claim and defence to counter claim valid, counsel explained that the original statement of claim of the claimant was filed pursuant to a motion for extension of time moved and granted on January 11, 2004.
The Statement of claim was deemed, properly, filed and served, same having been exhibited in the affidavit in support of the motion. On the same day the defendants asked for thirty days to file their Statement of Defence.
The Claimant also filed a Reply to the defendants Statement of Defence and counter claim on 2/3/05. thus the claimant’s statement of claim and Reply to statement of Defence and counter claim were filed before the 2005 High Court Rules came into operation.
The above mentioned processes were not commented upon or complained against by the defendants counsel in his “observation” of 2/6/08. It is, thus, a surprise that the trial judge in her ruling held that: “the effect in this circumstance is that there is no valid statement of claim, or defence to counter claim before the court.”
He submitted that the law still remains that if a party who has obtained an order to amend does not amend within the time limited, then the original process which was not amended has to be relied upon by the court, Klawal v. NEPA (1976) NSCC (Vol.10) 163, 171. He submitted that the lower court was in serious error to have made the statement quoted above.
There was no application, oral or written, before her complaining about the Statement of claim and Reply to statement of Defence and Defence to counter claim. The lower court, thus, flouted the rule that a court should not award to a party what he has not claimed or prayed for, Emmanuel v. Debayo -Doherty (2009) 1 NWLR (pt.1123) 505, 520; Ekpeyong v. Inyang (1975) 2 SC 74; Adeosun v. Babalola (1972) 5 SC 292, 405; Obioma v. Olomu (1978) 1 SC 1, 107; (1978) 11 NSCC 103, 107.
He submitted that it was not competent for the lower court suo motu to raise the issue of validity of the statement of claim and defence to counter claim, and decide the issue without affording the parties the opportunity of hearing, Oje v. Babalola (1991) 4 NWLR (pt.185) 267, 280; Folorunsho v. State (1993) 8 NWLR (pt.313) 612, 619.
He urged the court to hold that the pronouncement of the lower court and same has occasioned a miscarriage of justice. He urged the court to answer issue 3 in the affirmative and allow grounds 6 of the notice of appeal.
on his part, counsel for the respondents prayed the court to resolve the above issue in favour of the respondents. He maintained that the rower court did not in any way or at any time. declare that the original writ of summons, Statement of claim and Defence to counter claim were invalid because when the appellant withdrew the two court processes that were struck out by the rower court, she relied on her original statement of claim and cared pw2 and pw3 based on her original court processes’ pages 413, 415 and 429 of the record of appear, citing page 429 of the record.
He observed that if the original statement of claim had been declared invalid, the trial court would not have allowed the appellant to rely on it to lead PW2 in evidence. It was based on these original court processes that the appellant called Pw3 and pw4, pages 415 – 424 of the record of appeal. He submitted that even as at 21/1/2009, the lower court adjourned this case to 17/02/2009 for continuation of hearing based on the original Statement of claim of the appellant since she opted to rely on same in lieu of the one struck out. Therefore, issue three of the appellant in this appeal is misconceived and ought to be struck out since it was formulated in vacuum.
In his reply, appellant’s counsel contended that the respondents had not gone through the ruling complained of. He submitted that it is not what the respondents think or believe the lower court said in its Ruling that is material. What is material are the actual words used by the court. The Ruling under reference is at page 415 of the Record.
He wondered whether the appellant should have folded its hands and done nothing.
The respondents have not attempted to support the Ruling. He urged the court to allow ground 6 of the Notice of appeal.
RESOLUTION OF THE ISSUE
There can be no gainsaying the fact that there was a manifest slip in the ruling of the lower court at page 415 of the Record. This is what the court said.
The effect in this circumstance is that there is no valid statement of claim, or defence to counter claim before the court.
Even the lower court could not have foreclosed the appellant. If it did, the proceedings recorded on pages 413, 415 and 429 of the record could not have taken place before the same court. However, for the avoidance of doubt, we find in favour of the subsistence of these processes. In all, this appeal succeeds. I hereby enter an order setting aside the rulings complained of. Since the substantive suit is still pending before the lower court, the application shall be remitted to the lower court for hearing.
Now, among other things, the 2005 Rules (supra), in Order 1 Rule 4 (2), pragmatically, provides that the application “of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.”
The said observation, which has, considerably, contributed in filibustering the proceedings of the lower court, is a complete negation of the philosophy of this new regime of Rules: rules which should be applied in order to achieve a just, efficient and speedy dispensation of justice. At its current millipede speed, God knows when the rights and liabilities of the parties in this suit, which was, originally, commenced under the Undefended List procedure, would be disposed of. The approach which counsel adopted at the lower court on June 2, 2008 speaks ill of our procedural jurisprudence. The new Rules do not brook such antics.
TIJJANI ABDULLAHI, J.C.A.: I have read before now, the lead judgment of my learned brother, NWEZE, J.C.A., and I agree with his reasoning and conclusions.
Order 4 Rule 2 of the Kwara State High Court (Civil Procedure) Rules provides as follows:
“2.(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
(2) Any application under sub-rule (1) may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or notice of motion.
The provisions of the Order reproduced supra are very clear and unambiguous. Needless to say an application to set aside for irregularity may be made by Summons or Motion on Notice and the grounds of objection SHALL be stated in the Summons or Notice.
It is instructive to note that the word “Shall” means “mandatory” and ought to be complied with. It excludes discretion. The learned trial Judge in my view was completely wrong to have acted the way he did based on an oral observation of the learned counsel for the Respondents. The trial court had no discretion to allow the oral observation pursuant to which the Appellant’s processes were set aside because the provision of Order 4 Rule 2 (2) is mandatory. See: OLOWOKERE V. AFRICAN NEWSPAPERS (1993) 5 NWLR (Pt. 295) 583 at 600.
The observations of the Defendants. Counsel was not initiated by due process of law, the court was robbed of the necessary jurisdiction to set aside the processes. See: F.A.B.S. LTD vs. IBIYEYE (2008) 14 NWLR (1107) 375 at 402.
That aside, an application to set aside for irregularity any proceedings, or any step taken in any proceedings or any document and so on, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. See the case of CHIEF ONWUKA KALU vs. CHIEF VICTOR ODILI & ORS (1992) 6 SCNJ 29 at 101-102.
For these reasons and the more detailed ones set out in the lead judgment, I too allow the appeal and abide by the consequential order as contained in the lead judgment.
SOTONYE DENTON WEST, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Chima Centus Nweze JCA. In my view, he has dealt adequately with all the issues raised herein. However I would like to point out to the litigants and even to ourselves that justice unduly delayed is justice denied. These two rulings which constitute the anchor of this appeal has not in any way finally determine the rights of the parties as could be gleaned from the order of this court from the history of this case which had its birth from 2003, today is 2011.
The matter is still dangling around interlocutory applications which are actions taken by either party in the prosecution of their case. With these constant interlocutory proceedings which characterized this case even in the lower court as the proceedings taken so far are only incidental to the principal object of, the action namely the judgment or the fruits of their labour. For now, it is not likely at this rate that we have seen the end of interlocutory appeals either in this court or even the apex court. I wonder what would be the fate of this case if for the past eight years; it is still at the trial stage of specifically the 3rd Pw still on the stand. I do hope that is not a delay tactics by litigants. see in the case of Dapianlong v. Dariye (No. 2) (2007) ALL FWLR (pt. 373) 81 at 131 – 132 Paras. E – A (SC), (2007) 4 SC (Pt. III) 118. Wherein Onnoghen JSC said thus “I have to put it on record that the desire of the judiciary to curb the now notorious attitude of some legal practitioners and politicians faced with very bad cases to employ delay tactics to either defeat the ends of justice or postpone the evil day, needs the encouragement of all well meaning legal practitioners, particularly the very senior members of the profession. If is apparent that in impeachment cases, like- election matters, time is of the very essence. In the instant case which was commenced by originating summons designed to expedite the matter, the objection to the jurisdiction of the trial court, if well intentioned and not directed or aimed at causing inordinate delay in the determination of the issues, could have been taken together with the substantive matter so as to speed up the process of adjudication. Rather than adopt that prudent procedure’ the appellants chose to appeal against the well intentioned. decision of the trial court to hear arguments on both the preliminary objection on jurisdiction and the originating summons expecting that in the event of being overruled, they would have to return to the trial court for the hearing of the substantive matter. Meanwhile, time like tide, as they say, waits for no men, it keeps on running out and at the end may likely leave justice prostrate and the aggrieved party frustrated and bitter with the judicial system. The court has to do something about the situation for the restoration of hope and credibility in the system for the benefit of all. Is it not said that justice delayed is justice denied? The reign of technical justice is over, on the throne now sits substantial justice”.
Whilst I wish the parties speedy dispensation of this case, I would urge all stakeholders to an action by the litigants, their lawyers and those who sit to administer justice according to law to be careful and tarry from delaying the course of justice as justice unduly delayed is justice denied.
I also agree that the appeal is not lacking in merit and it therefore succeeds. I abide by the order made in respect of setting aside the rulings complained of.
Although I do not appreciate a remittal order to the lower court for hearing in view of my above comments, nevertheless I abide by same as no useful purpose would be served if I vary same as it would only add to further delay although it may enhance the jurisprudential aspect of our law.
Appearances
T. OladipoFor Appellant
AND
S.T. ABubakarFor Respondent
