MR. JOSEPH ADEBAYO ADEDOYIN V. MR. TAIYE ONIYIDE
(2012)LCN/5375(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/IL/25/2011
RATIO
APPEAL: RULE ON RAISING OF PRELIMINARY OBJECTION
On this Preliminary Objection, my first port of call is Order 10 Rules 1 and 3 of the Rules of this Court. Rule (1) says:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice before the hearing, setting out the grounds of objection, and shall file, such notice together with twenty copies therefore with the registry within the same time.”
Rule (3) says:
“If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”
Now, the provisions of the Rules of this Court pertaining to how a Preliminary Objection will be raised is explicitly provided in the said Rules quoted above. Needless to say copies of such objections must be filed and – the respondent shall give the-Appellant three clear days notice before the hearing. The question to be asked at this stage is, can it be said that the Respondent has complied with the Provisions of these Rules? This question straight away must be answered in the negative. That is to say the Respondent absolutely failed to comply with the Provisions of the said Rules. He only raised the objection in his brief without filing even a copy of the objection contrary to what the Rules provide.
It is noteworthy that often, Respondents’ Counsel simply raises Preliminary “Objections in the Respondents’ brief without filing a formal/separate Notice of Objection as directed by Order 10 Rule 1. The argument usually canvassed, is that in so far as the Appellant is given at least 3 days’ notice of the objection, the same is okay to be raised in the Respondent’s brief.
A hard look at the wordings of these Rules, I am of the considered view that such argument is wrong and completely devoid of any legal foundation. The aspect of the requirement to file the Notice of Objection in 20 copies is glossed over completely. No doubt, in law, it is the filing fee that breathes file into the processes filed, except where filing fees is waived, as in the case of official process from Government and Government departments. See the case of Mr. Ibiwoye Anu Ayodiji and Anor vs. Senator Simeon Sule Ajibola & Ors an unreported decision of the Court of Appeal Ilorin Division in EPT/CA/IL/SEN/9/2011, delivered on 14/12/11 pages 10 – 11 where it was held:
“Of course, by law, it is the filing fees that vest legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government …. Since the alleged preliminary objection was … not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration, by this court. Thus, the preliminary objection, raised by the 1st and 2nd Respondents in their Brief of argument, without evidence of prior filing of the said notice, is incompetent and cannot be relied upon to question the competence of the said grounds of appeal by the Appellants.”
See also the case of Dr. Abdulrasheed Alanamu vs. Yakub Agbo & 2 Ors. Appeal No. CA/IL/26/2011 delivered on 26th day of Apri1, 2012. PER TIJJANI ABDULLAHI, J.C.A.
APPEAL: WHETHER APPEAL JUDGES CAN FORMULATE ISSUES SUO MOTU
It is now settled that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an-appeal. See Ikegwusha vs. Ohawuci (1996) 3 NWLR (Pt. 435) P.146 and Aduku vs. Adejoh (1994) 5 NWLR (Pt. 346) P.582. PER TIJJANI ABDULLAHI, J.C.A.
COURT: EFFECT OF NON-COMPLIANCE WITH THE RULES OF COURT
In the case of JIC Ltd. vs. R.L. Import Export (1988) 7 SCNJ 93 at 112 line 3, the apex Court held thus:Â Â
“It is trite to sate that non-compliance with the rules of Court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceeding by the party complaining about the breach of the rules of Court he is said to have waived the breach.”
I am of the considered view that since the parties asked for and the Court granted an adjournment for a day for hearing of the pre-trial conference parties have waived their rights to complain about any lapse in the omission to follow the rules strictly. No party is prejudiced by the lapse. The Court should have held that there is substantial compliance with the rules.
A hard look at the provisions of Form 23 and 24 would reveal the fact that the forms are for personal benefit of the party and can be waived as was decreed by the apex Court in the case of Feed and Food Farming (Nig.) Ltd. vs. N.N.P.C. (2009) All FWLR (Pt.484) 1436 at 1458 where it was held thus:Â Â
“If the object of a statute is not one of general policy or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law “equity protest enunciate jury pro se introduct” As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interest are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the courts.”
Again, in the case of Gambari vs. Buhari (2009) All FWLR (Pt. 479) 458 at 501, it has been held that “the breach of a rule of practice can only render a proceeding an irregularity and not a nullity. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH ADEBAYO ADEDOYIN – Appellant(s)
AND
MR. TAIYE ONIYIDE – Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara – State (Coram) Akoja (J) delivered on the 26th November, 2010 wherein the trial Judge, on oral application by the counsel to the Defendant/Respondent dismissed the Claimant/Applicant’s suit on the ground that Form 23 was not filed by the Appellant. The Appellant filed Form 24 out of time but failed to file Form 23.
The Appellant took out a writ against the Respondent on the 24th September, 2009 against the Respondent’s claiming the following reliefs:
“The Claimant is claiming from the Defendant general damages of Two Million N2,000,000,00) Naira for the following:
(1) Unlawful arrest and false imprisonment when the Defendant brought a policeman with a warrant of arrest and arrested the Claimant on 15th November, 2006 at his rented house at 5 Oke Aluko Agba Dam Housing Estate, Ilorin and took the Claimant police to the station and detained him there until he was bailed out.
(2) Trespass when the Defendant came to the Claimant’s apartment at 5 Oke Aluko Agba Dam Housing Estate Ilorin unlawfully and uninvited to disturb the quiet enjoyment of the Claimant’s premises on 14/11/2006.
(3) Assault and battery committed on the person of the Claimant on 14/11/2006 when the Defendant trespassed the Claimant’s rented apartment at 5 Oke Aluko Agba Dam Housing Estate Ilorin to wrestle with the Claimant and fell him down, beat him and also beat the Claimant’s wife and children.
(4) Malicious prosecution when the defendant set in motion judicial process of arrest, imprisonment and personally prosecuted the Claimant in a Chief Magistrate Court Ilorin and the prosecution ended in favour of the Claimant when the Claimant was discharged and acquitted on 18/2/2009
(5) For injuries suffered as the result of the above conduct on the Defendant which caused the Claimant not only personal injuries, pains and humiliation but also caused monetary damages for the expenses of defending the criminal trial at the Magistrate Court.”
On the 26th November, 2010, the learned trial Judge, in a reserved ruling held inter alia thus:
“The situation brings to the fore, the relevance and or applicability of the provision of Order 33 Rule 2 sub-rules (3) of the High Court (Civil Procedure) Rules, 2005 which provides thus:
(3) If the Claimant does not make the application in accordance with sub-rule (1), the defendant or defendants may do so or apply for an order to dismiss the action.”
The provision is mandatory and the court has no discretion in the matter.
Accordingly therefore, the Court holds that this suit is not competent for serious non-compliance with the rules of this Court.
The suit No. KWS/168/2009, instituted on the 24th day of September, 2009, shall be, and is hereby dismissed.”
Aggrieved by the ruling of the learned trial Judge reproduced supra, Claimant/Appellant approached this Court and expressed so by filing a notice of appeal which carries eight grounds from which he distilled six issues for determination to wit:
“(1) Whether it is proper for the court to dismiss a case upon an objection raised orally – Grounds 1 and 6 of the Appeal.
(2) Whether in the circumstances of this case absence of Form 23 should attract dismissal of a case not yet heard on its merit. Grounds 2 and 3.
(3) Whether the Respondent has not waived his right in respect of Form 23 and Form 24 in this case. Ground 4.
(4) Whether the court has no discretion but to dismiss a case in applying Order 33 (3) of the Kwara State Civil Procedural Rules, 2005 – Ground 7.
(5) Whether the case before the court was incompetent and whether an incompetent case can be dismissed – Ground 8.
(6) Whether it is proper for the trial court to dismiss the counter claim – Ground 5.”
On the other hand, learned Counsel for the Respondent raised in the brief a Notice of Preliminary Objection and formulated two issues for determination in the substantive appeal.
On the 22nd February, 2012, when the appeal came before us for hearing, the learned Counsel for the Appellant, Chief A. O. Olurunnisola, SAN, adopted his brief dated and filed on 29/3/2011 as well as the Appellant’s Reply-Brief dated and filed on 10/5/2011 as his arguments in the appeal under consideration. He urged us to allow the appeal.
For his part, Counsel for the Respondent adopted his brief of argument dated and filed on 29/4/2011 as well as his notice of Preliminary Objection raised in the said brief as their arguments in this appeal. Learned Counsel urged us to sustain the objection and strike out the offending grounds and dismiss the appeal. His issue No. 1 as appeared in the brief is now issue No. 2 whilst issue No. 2 is now issue No. 1.
Let me consider the Preliminary Objection raised by the Respondent before considering the substantive appeal if need be.
On this Preliminary Objection, my first port of call is Order 10 Rules 1 and 3 of the Rules of this Court. Rule (1) says:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice before the hearing, setting out the grounds of objection, and shall file, such notice together with twenty copies therefore with the registry within the same time.”
Rule (3) says:
“If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”
Now, the provisions of the Rules of this Court pertaining to how a Preliminary Objection will be raised is explicitly provided in the said Rules quoted above. Needless to say copies of such objections must be filed and – the respondent shall give the-Appellant three clear days notice before the hearing. The question to be asked at this stage is, can it be said that the Respondent has complied with the Provisions of these Rules? This question straight away must be answered in the negative. That is to say the Respondent absolutely failed to comply with the Provisions of the said Rules. He only raised the objection in his brief without filing even a copy of the objection contrary to what the Rules provide.
It is noteworthy that often, Respondents’ Counsel simply raises Preliminary “Objections in the Respondents’ brief without filing a formal/separate Notice of Objection as directed by Order 10 Rule 1. The argument usually canvassed, is that in so far as the Appellant is given at least 3 days’ notice of the objection, the same is okay to be raised in the Respondent’s brief.
A hard look at the wordings of these Rules, I am of the considered view that such argument is wrong and completely devoid of any legal foundation. The aspect of the requirement to file the Notice of Objection in 20 copies is glossed over completely. No doubt, in law, it is the filing fee that breathes file into the processes filed, except where filing fees is waived, as in the case of official process from Government and Government departments. See the case of Mr. Ibiwoye Anu Ayodiji and Anor vs. Senator Simeon Sule Ajibola & Ors an unreported decision of the Court of Appeal Ilorin Division in EPT/CA/IL/SEN/9/2011, delivered on 14/12/11 pages 10 – 11 where it was held:
“Of course, by law, it is the filing fees that vest legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government …. Since the alleged preliminary objection was … not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration, by this court. Thus, the preliminary objection, raised by the 1st and 2nd Respondents in their Brief of argument, without evidence of prior filing of the said notice, is incompetent and cannot be relied upon to question the competence of the said grounds of appeal by the Appellants.”
See also the case of Dr. Abdulrasheed Alanamu vs. Yakub Agbo & 2 Ors. Appeal No. CA/IL/26/2011 delivered on 26th day of Apri1, 2012.
In the light of the foregoings, I hold that the Preliminary Objection raised by the Respondent is grossly incompetent and same is therefore dismissed.
ARGUMENT OF ISSUES
Now, returning to the substantive appeal, as earlier stated in this judgment, the Appellant distilled six issues for determination.
I have already set them out in this judgment hence there is no point setting them out again at this stage. Counsel for the Respondent formulated two issues for determination which I have also reproduced supra.
It is now settled that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an-appeal. See Ikegwusha vs. Ohawuci (1996) 3 NWLR (Pt. 435) P.146 and Aduku vs. Adejoh (1994) 5 NWLR (Pt. 346) P.582.
Consistent with the decisions in the cases quoted (supra) I am of the considered view that the issues formulated by the Appellant would determine the real question in this appeal. I would therefore adopt them as the issues calling for determination.
The issues at the risk of being repetitive are as follows:
(1) Whether it is proper for the court to dismiss a case upon an objection raised orally – Grounds 1 and 6 of the Grounds of Appeal.
(2) Whether in the circumstance of this case absence of Form 23 should attract dismissal of a case not yet heard on its merit – Grounds 2 and 3.
(3) Whether the Respondent has not waived his right in respect of Form 23 and Form 24 in this case. Ground 4.
(4) Whether the Court has no discretion but to dismiss a case in applying Order 33 (3) of the Kwara State
High Court Civil Procedure Rules, 2005 – Ground 7.
In arguing issue No. 1, learned Counsel for the Appellant, in a brief settled by Chief P.A.O. Olorunnisola, SAN, began his consideration of this issue by contending that pleadings have been concluded and closed and that the suit was therefore adjourned by the Court on the concurrence of the parties to 15/04/2010 for pre-trial proceedings.
Learned senior counsel contended that on the 15/4/2010 when the case came up for the pre-trial proceedings, learned Counsel for the Respondent raised orally an objection that the Rules of the High Court were not complied with in that Form 23 was not filed. The Respondent’s Counsel, learned Senior Counsel went on, urged the Court to dismiss the case by invoking Order 33 Rule 2 of the High Court Civil Procedure Rules, 2005. He also raised the issue that Form 24 was filed out of time.
Learned Senior Counsel argued that in obedience to the rule of Court, such an oral application should have been rejected by the learned trial Judge in view of the provisions of Order 4 Rule 2 of the High Court Rules which stipulated inter-alia that such applications can only be made by summons or motion on Notice to the other party who must be given a written notice of such objection.
Learned senior counsel submitted that the purport of the order quoted above is that no impromptu objection is to be allowed. In this case, the objection was raised without previous notice. This learned Senior Counsel submitted is contrary to Order 33 Rule 3 of the High Court Civil Procedure Rules. Learned Counsel posits that the rule of the Court asking application to be made in writing should be followed. He relied on the case of Riruwai vs. Shekarau (2009) All FWLR (Pt. 46) 975 at 993.
Learned Senior Counsel submitted that from the circumstances of this case, one wonders what the trial court expected when the Court stated that:
“From the foregoing, it is clear that the claimant did not comply with the provisions of order 33 Rule 2(1) (2) of the Kwara State High Court (Civil Procedure) Rules, 2005 and they have no apology for this failure.”
Learned Senior Counsel posed this question that is, how does the Court want the Appellant to apologize in such a situation? He went to contend that it is noteworthy that the further address of the Appellant’s Counsel respecting the propriety of the oral application was not addressed by the trial Court. Learned Senior Counsel urged us to resolve this issue in favour of the Appellant and hold that it is not proper for the trial Court to dismiss the Appellant’s case upon an objection raised orally.
ISSUES 2 AND 3.
Learned Senior Counsel argued issues No.2 and 3 together. In arguing these issues, learned Senior Counsel submitted that in considering whether dismissal is appropriate in this case, one should bear in mind that the purpose of the rule of Court is to help in guiding conduct of case.
Parties in this case, he went on, have exchanged pleadings. Form 23 is “Hearing Notice for pre-trial Conference”. He further submitted that the Form is only to let the other party know when pre-trial conference will hold.
It is the submission of the learned Senior Counsel that Form 23 acquainted the parties of the pre-trial day. That day, the learned Senior Counsel went on, was known by the parties and it was 30/3/2010 when both Counsel agreed on a date for pre-trial conference. Wherein the Respondent’s Counsel admitted thus:
“We have received a copy of the paper filed. We are also praying for pre-trial. Subject to the convenience of the Court, we are praying for another date for pre-trial.”
It is the submission of the learned Senior Counsel that since the two parties asked for a date of hearing and the Court granted an adjournment for the day of hearing of the pre-trial conference, parties have waived their rights to complain about any lapse in the omission to follow the rules strictly. No party, learned Senior Counsel went on, is prejudiced by the lapse. The Court should have held that there is substantial compliance with the rules.
Learned Senior Counsel further held that the breach of a rule of practice can only render a proceeding an irregularity and not a nullity. He relied on Gambari vs. Buhari (2009) All FWLR (Pt. 479) 458 at 507. We were urged to resolve this issue in favour of the Appellant.
ISSUE NO. 4
Issue No. 4, is whether the Court has no discretion and has to dismiss the case. Learned senior counsel referred to order 33 Rule 2(3) which states thus: “If the Claimant does not make the application in accordance with sub-Rule (1) the Defendant or Defendants may do so or apply for an order to dismiss the action.” And such submitted that the words used by this rule bear no resemblance of mandatory order of dismissal. The rule, learned Senior Counsel went on, says that the Defendant may apply. It is not every application made to the Court which the Court can grant. The Court should act judiciously and judicially. The Court, learned Counsel went on, has a discretion before taking such action as dismissal.
It is the contention of the learned Senior Counsel that in order to make parties comply with the procedural rule, there is a provision for penalizing any defaulter without destroying the substantive matter. On this contention, learned Counsel relied on Order 10 Rule 5 – proviso – prescribing a penalty of N100 per day. It is the submission of the learned Senior Counsel that the trial Court ought to have invoked Order 4 Rule 2(1) which provides:
“Order 4 Rule 2 Rule (1) An application to set aside for Irregularity 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.
4(2) (2) Any application under the sub-rule may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or notice of motion.”
Learned Senior Counsel referred to the case of Saleh vs. Monguno (2006) All FWLR (Pt. 332) 1411 at 1487 and submitted that dismissing a case when the merit has not been heard is clear injustice. The case, he went on, does not even deserve striking out just on the ground of non-compliance with Forms 23 and 24. We were urged to resolve this issue in favour of the Appellant and against the Respondent.
For his part, learned Counsel for the Respondent, submitted that given the facts and general circumstances of this case, the learned trial Judge’s decision in dismissing the suit before it pursuant to Order 33 Rule 2 of the Kwara State High Court (Civil Procedure) Rules, 2005 is perfectly right and in order.
Learned Counsel for the Respondent contended that as found by the learned trial Judge, the Appellant had between 8th day of March, 2010 to 22nd day of March, 2010 within which the Appellant was to obey the provisions of Order 33 Rule 2 (1) by applying for the issuance of the pre-trial conference, Form 23, in this case. Learned Counsel contended that there was no application from him to do so. Learned Counsel went on to contend that having obtained the leave of the lower Court to file the Reply to Counter-claim out of time, he went back to sleep. Yet he was still in his slumber even till 15/04/2011 when the case again came up before the learned trial Judge.
Learned Counsel admitted the fact of non-compliance with Order 33 Rule 1; justifying same on his purported experience that the provisions of the said order were usually waived by the parties in various Courts.
Learned Counsel therefore submitted that, given the facts of clear breach and deliberate non-compliance with the provisions of Order 33 Rule 2(1) of the Rules of the lower court by the Appellant, the lower Court was right in its decision in invoking the provisions of Order 33 Rule 2(3) of the same Rule by dismissing the suit.
It is the contention of the learned Counsel that from the response of the Appellant to the non-compliance of the Rules, i.e. that they experience waiver of the Rules in various Courts, the Appellant’s non-compliance with the Rules of the lower Court was deliberate.
Learned counsel urged us to hold that a party who treats the provisions of the Rules of Court with disdain does so at his own peril. Such a party, learned Counsel went on, must be ready to accept the sanction enacted in the law for such violation. For this submission, learned Counsel referred us to following cases:
(1) Oluwo vs. Abolore (1993) 10 SC 48
(2) Kamba vs. Bawa (2005) All FWLR (Pt. 281) 1798
(3) Ekanem Ekpo vs. ACB PLC (2008) 1 SCNJ 189
(4) Williams vs. Hope Rising Voluntary Fund Society (1982) 1 All NWLR (Pt. 1) Pg. 5.
(5) Johnson vs. Osaye (2001) FWLR (Pt. 68) 1197 and 1216
On this score alone, learned counsel urged us to resolve this issue in favour of the Respondent and against the Appellant.
The 2nd issue for determination is whether the Respondent was estopped from raising the issue of non-compliance with the Provisions of Order 33 Rule 2(1) of the Kwara State High Court (Civil Procedure) Rules.
Learned counsel for the Respondent drew the attention of the Court to their objection to this new point raised according to him for the first time in ground No. 4 of the Notice of Appeal whereby he argued that the issue of waiver of estoppel having been raised for the 1st time on appeal before this Court without leave is incompetent.
It is the contention of the learned Counsel that there is no where the Respondent either by conduct or overtly waived his right to raise the issue of the Appellant’s violation.
It is submitted by the learned Counsel that the mere fact that on 30/3/2010 the matter was adjourned till 15/4/2010 for pre trial conference does not derogate from the duty imposed on the Appellant by Order 33 Rule 2(1) of the High Court’s Rules to initiate the pre-trial conference proceeding by applying for the issuance of the pre-trial conference form. In fact, by adjourning the matter from 30/3/2010 to 15/4/2010 (two weeks appr) the Appellant was only given an opportunity to take the requirement of the law which the Appellant’s counsel admitted they were aware of.
It is further submitted by the learned Counsel that having not utilized the opportunity provided the adjournment of the matter from 30/3/2010 to 15/4/2010 by the Appellant cannot blame anybody for his failure. Nor can the Appellant now shift the blame on the Respondent that the Respondent has waived his right to complain on the non-compliance.
It is the submission of the learned Counsel that given the general circumstances of this case, it is patently wrong that the Respondent did not timeously raise the issue of non-compliance with the Rules of the Court. For this submission, learned Counsel relied on the cases of Saka vs. Adebioye (2010) All FWLR (Pt. 549) 1156 at 1173 and Baba Bichi vs. Ahmed Alaldu & Others (2003) Vol. EPR 587 at 601 – 605.
Learned counsel urged us to hold that the Respondent had not waived his right to complain of the Appellant’s non-compliance and that the Respondent is not estopped at all from raising the issue as he did. We were also urged to resolve this issue in their favour.
RESOLUTION OF ISSUES
ISSUE NO. 1
In resolving issue No. 1 let me begin with Order 4 Rule 2 of the Kwara State High Court (Civil Procedure) Rules, 2005 which states 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 summons or notice of motion.” (underlining mine for emphasis).
The provision of the Rules under which such an application to dismiss a suit is to be brought quoted above are very clear and unambiguous. The purport of this provision is that no impromptu objection is to be allowed. It would certainly be unfair and unjust to make such an application without giving the other party a written notice of such an objection. In the instant case, the objection was raised without previous notice to the Appellant. A hard look at the provisions of Order 33 Rule 3 relied upon for dismissing this suit require proper written application within the context of the High Court Rules to be made.
Order 33 Rule 3 says:
“If the claimant does not make the application in accordance with sub-rule 1, the Defendant or Defendants may do so or apply for an order to dismiss the action.”
I am of the firm view that since the Respondent’s application was for dismissing the case, it should be by an application in writing. Order 1 Rule 4 of the Rules of the lower Court states:
“These rules shall apply to all Proceedings including part heard cases and matters…”
In the case of Riruwai vs. Shekarau (2009) All FWLR (Pt.461) 957 at 993 it was held that:
“An application in Legal parlance or Court Procedure does not mean a letter written to the Court but an application by motion ex-parte or on notice.”
It is now trite, that rules of Court are meant to assist the Court, I am of the considered view that, such notice if given in writing would have put the other side on notice to take remedial measures. In this case where no prior notice was given, such embarrassing situation threw off the other party. It would not be out of place for the trial Court to expect a remedial measure to be taken by the Appellant but is that possible when surprise was thrown on the opponent?
I am of the firm view that in the instant case, the trial Court did not do equity by closing its eyes to the various provisions of the rule requiring proper notice in writing by the Respondent as highlighted above while requiring strict compliance from the Appellant.
In the light of the foregoings, the issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2 & 3
Issue No. 2 as earlier Stated in this judgment is whether in the circumstances of this case absence of Form 23 should attract dismissal of a case not yet heard on its merit.
And Issue No. 3 is whether the Respondent has not waived his right in respect of Form 23 and Form 24 in this case.
As can be gleaned from the record the much talked-about Form 23 is no more than to acquaint the parties of the Pre-trial day. That date was known by the parties on 30th March, 2010 when both Counsel agreed on a date for the pre-trial conference. This can be seen on pages 104 lines 5 – 11 of the record. The Respondent’s Counsel as can be seen admitted thus:
“We have received a copy of the paper filed. We are also praying for pre-trial. Subject to the convenience of the Court we are praying for another date for pre-trial”
It is to be observed that from 30/3/2010 to 15/4/2010 the Respondent did nothing by way of objection. He did not tiemously raise objection. I am of the view that having taken steps by asking for a date of hearing of Pre-trial Conference unconditionally, the Respondent has waived his right.
In the case of JIC Ltd. vs. R.L. Import Export (1988) 7 SCNJ 93 at 112 line 3, the apex Court held thus:Â Â
“It is trite to sate that non-compliance with the rules of Court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceeding by the party complaining about the breach of the rules of Court he is said to have waived the breach.”
I am of the considered view that since the parties asked for and the Court granted an adjournment for a day for hearing of the pre-trial conference parties have waived their rights to complain about any lapse in the omission to follow the rules strictly. No party is prejudiced by the lapse. The Court should have held that there is substantial compliance with the rules.
A hard look at the provisions of Form 23 and 24 would reveal the fact that the forms are for personal benefit of the party and can be waived as was decreed by the apex Court in the case of Feed and Food Farming (Nig.) Ltd. vs. N.N.P.C. (2009) All FWLR (Pt.484) 1436 at 1458 where it was held thus:Â Â
“If the object of a statute is not one of general policy or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law “equity protest enunciate jury pro se introduct” As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interest are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the courts.”
Again, in the case of Gambari vs. Buhari (2009) All FWLR (Pt. 479) 458 at 501, it has been held that “the breach of a rule of practice can only render a proceeding an irregularity and not a nullity.
In view of all that has been said these issues are resolved in favour of the Appellant.
Last but not the least issue for determination, is issue No. which is whether the Court has no discretion and has to dismiss the case.
In considering this issue, let me begin with Order 33 Rule 2(3) under which the Appellant’s case was dismissed and it provides thus:
“If the Claimant does not make the application in accordance with sub-rule (1) the Defendant or Defendants may do so or apply for an order to dismiss the action.”
It is crystal clear that the words used by this rule bear no resemblance of mandatory order of dismissal. The rule as can be read, says that the Defendant may apply. It is not every application made to the Court which the Court can grant. As it is expected, the Court should act judiciously and judicially. The Court needless to say, has discretion before taking such action as dismissal.
Again, other considerations which the Court should avail itself are:
(a) What is the stage the case has reached.
(b) If a dismissal is made, will justice have been done to the Claimant?
It is to be observed that the parties have only completed pleadings. The merit of the case has not been looked into. Failure to comply with the necessary rule is a fault attributable to the Counsel, not to the party. It is pertinent to state that the Respondent is also a Claimant (Counter Claimer) and he filed no papers in compliance with Order 33.
It is instructive to state at this juncture that the rule of the pre-trial conference is only made to quicken the
Hearing, it has nothing to do with the merit of the case. No party is prejudiced by the omission.
In the case of UTC (Nig) Ltd vs. Ajayi (2002) FWLR (Pt. 129) cited in C.O.P. G – H, the apex Court held that:
“Rules of procedures are made for the convenience and orderly hearing of cases in Court. They are made to hold the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not master of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Court slavish to rules, this is certainly not the raison d’etre of rules of Court.”
I ask, what justice has the trial Court attached in dismissing the case? None is the answer without any hesitation. In the light of all that has been said, this issue like the previous issues is resolved in favour of the Appellant and against the Respondent.
In conclusion, with all the four issues having been resolved in favour of the Appelalnt, the appeal succeeds and is hereby allowed. It is pregnant with a lot of merit. The ruling of the Court below is set aside. The case is remitted back to the State Chief Judge for re-assignment to another Judge other than Akoja (J) to be heard on the merit. N50,000.00 costs are awarded in favour of the Appellant and against the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read the illuminating Judgment of my Lord T. Abdullahi, JCA, the Honourable, the Presiding Justice, and am in total agreement with the position he has taken after discretely and dispassionately analyzing all the critical issues at stake, that the Appellant’s Appeal is meritorious and should succeed.
We have said it time and time again and there is need to re-echo the principle long established by their Lordships of the Supreme Court and as enunciated in the cases like UTC (Nig) Ltd v. Ajayi (2002) FWLR (Pt.129)? cited at page 20 of the lead Judgment and most especially the immortal words of Pats-Acholonu; JSC, in Duke v. Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) at 142 – 143, on the need not to elevate procedural Rules to the status of statutes as they are meant to be handmaids in the administration of justice. In this wise, strict adherence to the technical and mechanical rules of procedure to the detriment of substantial justice as was done by the learned trial Judge in his dismissal of the Appellant’s claim tantamount to choking, throttling and asphyxiation of the justice of Appellant’s case.
The dismissal of the claim of the Appellant in the circumstance, could not have been the intendment of the Kwara State High Court (Civil Procedure) Rules which specifically provides in order 4 Rules (1) & (2) thereof that where, in the beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify proceedings, or any document, Judgment or order therein.
Furthermore, the Court may also in the interest of justice exercise its discretion to set aside the proceedings either wholly or partly in which the failure occurred or exercise its powers under the Rules to allow amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
From the foregoing provisions of the above-cited Rule and without being oblivious of the fact that Rules of Court are meant to be obeyed, where there was an omission by the Appellant to abide by the provision of Order 33 of the High Court (Civil Procedure) Rules and such omission was a mere irregularity as in this case; the Court below ought to have bent over backwards to act judiciously and judicially in looking at the merit of the case or to make such order(s) as would serve the best interests of justice. By dismissing the claim of the Appellants after pleadings had been fully settled on the ostensible reason that Order 33 was not strictly adhered to, the Court had murdered justice and this Court in its Appellate jurisdiction shall not hesitate to set aside such unwholesome exercise of the Court’s discretion.
On the whole and for the foregoing reasons and other more elaborate reasons as have been advanced in the lead judgment, I shall also allow this appeal and set aside the Judgment of Akoja, J delivered on the 26th November, 2010. I also abide by the order of my learned P. J. for the case to be remitted to the High Court of Kwara State, for reassignment to another Judge for rehearing de novo. I am also in tandem with the order as to cost of N50,000.00 in favour of the Appellant and against the Respondent.
HON. JUSTICE ITA G. MBABA J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother, Tijjani Abdullahi JCA (PJ) and I agree with him completely.
I think the issue about applying for issuance of pre-hearing Notices in Court appears to have been finally settled by the Supreme Court in the recent decisions, touching on elections petitions in the cases of UGBA VS. SUSWAM, SAROR VS. SUSIVAM (AC 381/2011 and SC.283/2011), and UDOEDEGHE VS AKPABIO (all unreported) delivered on 28/11/2011, wherein the Supreme Court held that pre-hearing notices can even be applied for orally.
It has been held, repeatedly, that the Rules of Court are meant to serve as hand maids of the law, to assist the litigants to attain the justice as enshrined in the substantive law, and not to operate as a clog in the wheels of justice, to be used to enthrone technicalities and injustice. See the case of MOYOSORE VS. GOVERNOR OF KWARA STATE (2012) 5 NWLR (PT.1293) 242, held 22, wherein this court held:
“The rules and procedures of court are meant to serve the interest of justice as hand maids of the law to help the parties to get the justice enshrined in the substantive law. The rules cannot therefore be made to operate as clog in the wheels of justice to be used to deny litigants the opportunity to be heard on the merit over the petition he has duly brought to the court….” (Per Mbaba JCA)
In the case of DUKE VS. AKPABUYO L.G. (2005) 19 NWLR (PT.959) 130 at 142 – 143, the Supreme Court (per Pats – Acholonu JSC, (of blessed memory) said:
“It is important to understand the nature of rules of the Court. Our Courts have held that rules of the Court are meant to be obeyed: They provide supports in the administration of justice, but it must be understood that being rules or regulations to assist the court in ifs effort to determine issues or controversies before the Court, must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the Court to discover justice and not to choke, throttle or asphyxiate justice. They are not sine qua non in the just determination of a case and therefore not immutable.” See also the case of UTC (Nig) Ltd vs. Pamotei (1989) 2 NWLR (Pt. 103) 244; Prof. Steve T. Ugba and Anor. vs. Gabriel T. Suswam and 2 Ors CA/MK/EPT/10/2012 (unreported) decision of this Court, delivered on 12/4/2012 (pages 30 – 31 thereof).
For this reason and other more elaborate reasons in the lead judgment, I, too, allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
Chief P.A.O. Olorunnisola (SAN),
O.O. Dara Esq. For Appellant
AND
Wahab Ismail Esq.,
A. R. Ahmed Esq. For Respondent
