AKUKALIA CHIKE OFODILE, SAN OFR V. NWAMULUNAMMA HELEN AGUSIOBO & ORS
(2013)LCN/6196(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2013
CA/E/271/2010
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
AKUKALIA CHIKE OFODILE, SAN OFR
For himself and representing other members Of Onitsha Traditional Council Appellant(s)
AND
NWAMULUNAMMA HELEN AGUSIOBO
1. NWAMULUNAMMA EGBUNIWE
2. OMEORAFU JOSEPHINE ONWUALU
3. ONYEOMADIUKO AZOKWO
4. UGODIBEZE EBELE ETUKOKWU
5. NWAZULU IFEYINW AGUSIOBO
6. AZUMDIALO EDITH EGBUNIKE
7. NWAKIBIE OFFAH
8. CHINYELUGO OGUGUA ONONYE
9. UGOCHUKWULUBELU STELLA EGBUNIKE
10. ONYECHIBOLUEZE EJOH
11. NWAOGALANYAMAKA ADIBA UMUNNA Respondent(s)
RATIO
THE PRINCIPLE THAT RULES OF COURT ARE MEANT TO BE OBEYED
The rules of court are no doubt meant to be obeyed by both the parties and the court, but the rules are made for the courts and not otherwise. The rules of court are meant to facilitate the attainment of justice and not for purpose of doing injustice. Where the insistence on strict compliance with the rules by the court will occasion some injustice, or where the interest of justice will not be served by insistence on compliance with the rules, the court has the power to waive compliance with the rules by regarding the non-compliance as a mere irregularity.
See ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PT. 1078) 467; DINGYADI V. INEC (2010) 6-7 MJSC 1. PER AKEJU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY THE TRIAL COURT
It is generally improper for an appellate court to interfere with the exercise of discretion by a trial court and impose its own discretion simply because, given the same circumstances it would have exercised the discretion differently. See SARAKI V. KOTOYE (1989) 4 NWLR (PT. 143) 144. The discretion is that of the trial court and where that court has exercised it judicially and judiciously the appellate court will not interfere. See NZERIBE V. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT. 361) 1249: UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (PT.1) 143.
The appellant’s Counsel has cited a number of judicial decisions in his argument in the brief. In the exercise of its discretion, a court is only required to do so judiciously and judicially based on the facts of the case and the applicable law. The court is not bound by previous decisions.
See SOLANKE V. ALAKA (1956) 1 FSC 82.
What must be paramount to all courts is the administration of substantial justice rather than undue adherence to technicalities. See UKIRI V. GECO – PRACKLA (NIG) LTD. (2010) VOL. 5-7) PT.IV) MJSC 144, (2010) ALL FWLR (PT.534) 53. As stated in OJAH V. OGBOIN (1976 LPEL – 2366, the courts are to decide the rights of the parties and not to punish them for mistakes they make in conducting their cases. It is for the reason of this substantial justice that non-compliance with the rules of court is regarded primarily as an irregularity and not a ground for nullifying a process or proceedings. See the decision of this court in BOB V. AKPAN (2010) ALL FWLR (PT. 501) 896. PER AKEJU, J.C.A.
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): At the Onitsha Judicial Division of the High Court of Anambra State, the party now described as the 1st set of respondent, Nwamulunamma Helen Agusiobo, filed her Writ of Summons and Statement of Clam on 22/4/2009 in commencement of suit No. 0/132/2009 for three declaratory reliefs and perpetual injunction as averred in paragraph 11 (a-d) of the said Statement of Claim. The List of Witnesses, the Deposition as well as List of Documents to be relied upon at the trial were all filed with the originating processes. There are 12 defendants in the suit.
In its essence, the suit had challenged the suspension of the plaintiff by the Onitsha Traditional Council as a member of the Otu Odu Onitsha Ado-na-Idu and the dissolution of the elected executive Committee of the Otu Odu Onitsha Ado-na-Idu by Onitsha Traditional Council while the injunction was to restrain the defendants, their agents or privies from further interfering in the affairs, management and control of Otu Odu Onitsha Ado-na-Idu.
On the same 22/4/2009, the plaintiff filed a motion on notice for orders of interlocutory injunction against the 1st- 11th defendants (now 2nd set of Respondents) jointly or severally by themselves or their agents, or privies from acting as members of the Caretaker Committee for the management and control of the affairs of the Otu Odu Onitsha Ado-na-Idu and from presiding at the initiation ceremonies of new members or any ceremony whatsoever of members of Otu Odu Onitsha Ado-na-Idu pending the determination of the suit. The motion was accompanied by a supporting affidavit and a written address filed therewith.
Upon service of the originating processes on him, the appellant who was listed as the 12th defendant filed a “Conditional Appearance Under Protest” on 26/6/2009 and filed a motion on notice for the following orders;
1. Setting aside the purported Writ and the purported service on the 12th Defendant.
2. Striking out suit No. 0/132/2009.
3. Striking out the 12th Defendant as it appears on the record.”
The Grounds on which the application was brought were stated as follows:-
a. The Writ is incompetent and service invalid.
b. Akukalia Chike Ofodile SAN, OFR does not exist.
c. An Akukalia being an Ozo title is not an Ndichie.
d. An Akukalia, Akunne, Akunwata or Nnabuenyi is not and cannot be a member of Onitsha Traditional Council (Ndichie).
e. A non-member of the Onitsha Traditional Council (Ndichie) cannot represent the said body in a legal suit.
A supporting affidavit of 10 paragraphs and a Written Address were filed with the motion on notice, the gist of which, as deposed by Chinyere Igwe in paragraphs 4, 5, 6, 8 and 9 are;
“4. The alleged 12th Defendant namely, Akukalia Chike Ofodile, SAN OFR does not exist.
5. An Akukalia (an Ozo title holder) cannot be a member of the Onitsha Traditional Council.
6. A non-member of a body cannot represent that body in a legal Suit.
7. Onitsha Traditional Council is composed/constituted by red cap Chiefs Ndichie with their respective appellations’.
8. There exists in Onitsha a Chief Chike Ofodile SAN, OFR (Onowu of Onitsha) and he can also be addressed as Onowu Chike Ofodile SA, OFR.
9. On the granting of our prayers the processes addressed to Akukalia Chike Ofodile wrongly sent to Chief Chike Ofodile SAN, OFR (Onowu of Onitsha) will be returned to plaintiff s Counsel.”
The plaintiff (now called the respondent) filed a Counter Affidavit of 23 paragraphs on 28/9/09 deposed to by one Chika Ibeh to which exhibits were attached.
The appellant’s motion on notice came up for hearing on 5/11/2009 and as gleaned from the proceedings on pages 260-261 of the record of appeal, the learned Counsel E.O. Ofodile moved the moon and adopted same as well as the affidavit in support and the Written Address. Learned Counsel then stated as follows at pages 260-261:
“No counter affidavit or written address has been filed in this matter. This motion was filed and served on 26/9/2009.
Order 39 Rule (1) of our High Court Rules, rule 1 (3).
The counter affidavit was filed 85 days.
There is no motion for extension of time and no extension of time between Counsel and Counsel -leave of this honourable court was not sought.
Order 31 rule 4 (2).”
The suit was stood down for the respondent’s Counsel to pay the penalty for late filing of the Counter Affidavit.
After payment of the penalty, the proceedings went on thus;
“E.O. Ofodile:- Says I have seen the receipt. It was for 85 days but now they arrived at 61 days. I don’t know how but let it be.
E.O. Ofodile:- Says whether payment of the penalty means he’ll be heard- I refer to Order 44 rule 3.”
The respondent’s Counsel, Onyechi Araka Esq. then attempted to move the court orally to regularise the process by an order of extension of time, but the court refused the oral application and adjourned to 27/11/09 ostensibly to enable respondents’ Counsel apply formally to take steps to regularise the court processes.
Before this 27/11/09 fixed by the trial court, the appellant filed the Notice and Grounds of appeal on 6/11/09 commencing this instant appeal against the decision of the trial court on 5/11/09 raising 6 grounds of appeal. The Appellants’ Brief of Argument was subsequently filed on 25/5/12 wherein the learned Counsel, E. Obiezie Ofodile Esq. formulated the following issues for determination;
“1. IS IT PROPER FOR A COURT WITHOUT ANY APPLICATION MADE TO STAND DOWN PROCEEDINGS TO ENABLE THE COUNSEL TO REGULARISE ITS POSITION.
2. CAN A RESPONDENT IN A MOTION WHO HAS FAILED TO COMPLY WITH ORDER 31 RULE 4 (2) OF THE HIGH COURT OF ANAMBRA RULES 2006 BE HEARD IN ORAL ARGUMENT.
3. WAS ORDER 44 RULE 5 OF THE HIGH COURT OF ANAMBRA STATE (CIVIL PROCEDURE) RULES 2006 COMPLIED WITH BY THE 1ST RESPONDENT.
4. DID ALLOWING THE 1ST RESPONDENT TO PROFFER A REPLY BREACH THE RIGHT OF THE APPLICANT UNDER ORDER 39 RULE 1(4) OF THE ANAMBRA STATE HIGH COURT (CIVIL PROCEDURE) RULES 2006.
5. ARE THE WORDS “SHALL” IN ORDER 31 RULE 4 (2) AND ORDER 39 RULE 1 (3) OF THE HIGH COURT OF ANAMBRA STATE (CIVIL PROCEDURE RULES 2006 MANDATORY.”
The first issue is about the trial court suo motu standing down the case for respondents’ Counsel to pay the penalty. It was contended that the court did not seek any address from Counsel to the appellant as well as 2nd set of Respondents. The learned Counsel submitted that before the court can make an order in favour of a supplicant, there must be an application as the court does not act in vain; the cases of AROWOLO V. AKAYEJO (2012) 4 NWLR (PT. 1290) 286; and ORJI V. ORJI (2011) 17 NWLR (PT. 12 75) 113 were cited and relied upon.
On the second issue, it was contended that the 1st respondent filed a Counter Affidavit 85 days after service of the motion and also failed to file a written address which is foremost and should be filed within 7 days.
In other words that without a written address, there can be no counter affidavit.
The learned Counsel relied on Order 31 rule 4 (2) and 39 Rule 1 (1) (2), (3) and (a) of Anambra State (Civil Procedure) Rules 2006 and the cases of DRAGETONOS CONST. NIG. LTD. V. F.M.V. LTD.
(2011) 16 NWLR (PT. 1273) 308 and NWORA V. NWABUEZE (2011) 15 NWLR (PT. 1271) 467.
On the third issue it was argued that by virtue of Order 44 Rules 4 and 5 of the High Court of Anambra State (Civil Procedure) Rules, 2006, the court can abridge or extend the time for doing an act but where the parties or their Counsel have not granted extension of time to each other, an application has to be made to the court for extension of time. It was contended that for payment to be made under Order 44 Rule 5, a party must first secure extension of time under Rule 4 without which there will be no compliance. The cases of MALAWA V. GADZAMA (2000) 11 NWLR (PT. 678) 258: and BALOGUN V. UNIVERSITY OF ABUJA (2002) 13 NWLR (PT. 783) 42 were cited and relied upon.
The learned Counsel submitted on the fourth issue that there was no extension of time within which to file written address and/or counter affidavit sought by the respondent and so asking the appellant to proceed will be a denial of his rights under Order 39 Rule 1 (4) which will be most unfair and will work injustice to the appellant. Counsel cited the cases of GUTECH V. OBETEN (2011) 15 NWLR (PT.1271) 588; UBI PLC V. EFFIONG (2011) 16 NWLR (PT. 1272) 84 and AMADI v. AMADI (2011) 15 NWLR (PT. 1271) 437.
On issue number five, it was submitted that the words shall and may used in Order 39 Rules 1, 3 (1) (2), (3) and (4) must be treated as mandatory citing CONTRACT RESC. NIG. LTD. V. UBA PLC (2011) 16 NWLR (PT. 1274) 592; MALDAWA V. F.B.N. PLC (1997) 4 NWLR (PT.500) 497.
In the Respondents’ Brief authored by E. Onyishi Legal Practitioner in Onyechi Araka & Co., and filed on 7/6/12,the lone issue Formulation is as follows:-
“Having filed her Counter affidavit and written address out of time in opposition to the appellant’s motion on notice and having paid the corresponding appropriate defaulting penalty with respect to same, whether non-compliance by the 1st respondent with the rules of court which prescribed the time for filing the said court processes on the facts and circumstances of this case had resulted in the court processes as were filed by the 1st respondent being rendered void or treated as nullity.”
The learned Counsel argued that the trial court could not shut its eyes to the processes filed by the respondent though irregularly filed, and foreclose the respondent’s response to the appellants’ motion on notice by disregarding the full right of the respondent to a fair and dispassionate consideration of the motion. It was further argued that the courts are expected to meet the end of substantial justice and not to administer injustice by adopting technicalities. The learned Counsel stated that the learned trial judge was covered by Order 5 Rule 1 (2) of the High Court of Anambra State (Civil Procedure) Rules, 2006.
It was submitted that the learned trial judge had to exercise his discretion judiciously bearing in mind the 1st respondent’s Constitutional right to be heard, citing U.B.A. LTD. V. DIKE NWORA (1978) 11-12 SC 1.
On the application of the words shall and may in Orders 31 Rule 4 (2) and 39 Rule 1 (3) it was submitted that they are not mandatory but discretionary relying on IFEZUE V. MBADUGHA (1984) 5 SC 79.
The learned Counsel for the parties adopted their respective briefs at the hearing of the appeal and reliance was placed on the arguments therein to urge that the appeal be allowed or dismissed as the case may be.
It is clear from the proceedings of 5/11/09 which generated this appeal that after the payment of penalty as directed by the learned trial judge and the refusal of the oral application for extension of time, the court adjourned proceedings to 27/11/09 “for motion.” The motion of the appellant was not determined on that day, and indeed had not been determined before this appeal was commenced.
It is important to note that before the commencement of hearing of the appellants’ motion on 5/11/09, the respondent had filed a Counter affidavit which the appellant said was filed outside the time allowed by the rules of court. The basis for this appeal is therefore the “permission” the court granted to the respondent to pay penalty in respect of the Counter affidavit filed against the appellants’ motion on notice. In the light of the facts, and circumstances of this case as well as the grounds of appeal, I am of the view that this appeal can be conveniently determined on the lone issue raised by the respondent which is whether the noncompliance with the rules of court which prescribe the time for filing the relevant court processes in this case had rendered the processes filed null and void.
The rules of court are no doubt meant to be obeyed by both the parties and the court, but the rules are made for the courts and not otherwise. The rules of court are meant to facilitate the attainment of justice and not for purpose of doing injustice. Where the insistence on strict compliance with the rules by the court will occasion some injustice, or where the interest of justice will not be served by insistence on compliance with the rules, the court has the power to waive compliance with the rules by regarding the non-compliance as a mere irregularity.
See ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PT. 1078) 467; DINGYADI V. INEC (2010) 6-7 MJSC 1.
In the instant case, the court, in the consideration of any proceedings before it can have recourse to the provision of Order 5 Rule 1(2) of the High Court of Anambra State (Civil Procedure) Rules 2006 which provides;
“(2) Where 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 as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step in the proceedings.
The Judge may give any directions as he thinks fit to regularise such steps.”
This appeal has in its essence attacked the exercise of discretion by the learned trial judge to direct proceedings in his court as to meet the end of justice by allowing a party to regularise a process.
It is generally improper for an appellate court to interfere with the exercise of discretion by a trial court and impose its own discretion simply because, given the same circumstances it would have exercised the discretion differently. See SARAKI V. KOTOYE (1989) 4 NWLR (PT. 143) 144. The discretion is that of the trial court and where that court has exercised it judicially and judiciously the appellate court will not interfere. See NZERIBE V. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT. 361) 1249: UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (PT.1) 143.
The appellant’s Counsel has cited a number of judicial decisions in his argument in the brief. In the exercise of its discretion, a court is only required to do so judiciously and judicially based on the facts of the case and the applicable law. The court is not bound by previous decisions.
See SOLANKE V. ALAKA (1956) 1 FSC 82.
What must be paramount to all courts is the administration of substantial justice rather than undue adherence to technicalities. See UKIRI V. GECO – PRACKLA (NIG) LTD. (2010) VOL. 5-7) PT.IV) MJSC 144, (2010) ALL FWLR (PT.534) 53. As stated in OJAH V. OGBOIN (1976 LPEL – 2366, the courts are to decide the rights of the parties and not to punish them for mistakes they make in conducting their cases. It is for the reason of this substantial justice that non-compliance with the rules of court is regarded primarily as an irregularity and not a ground for nullifying a process or proceedings. See the decision of this court in BOB V. AKPAN (2010) ALL FWLR (PT. 501) 896.
The appellant has not succeeded in showing any miscarriage of justice he has suffered as a result of the proceedings of 5/11/09, and in view thereof I find this appeal to be frivolous and lacking in substance. It has failed and it is dismissed.
The appellant shall pay costs of N30,000.00 to the respondent (described as the 1st set of respondent on record).
MOJEED ADEKUNLE OWOADE, J.C.A.: I have the privilege before today of reading in advance the lead judgment of my learned brother, I. O. Akeju JCA. I am in full agreement with the reasoning and conclusions contained in the said judgment, which I also adopt as mine.
I abide by all orders made in the said judgment, including that of costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the Judgment just delivered by my Learned brother, ISAIAH OLUFEMI AKEJU JCA, I agree with his reasoning and conclusions. I also hold that this appeal lacks merit and is accordingly dismissed. I abide by all the consequential orders including the order as to costs.
Appearances
E.O. OfodileFor Appellant
AND
Onyechi Araka with Rita Ilukwe (Miss) L.I. Egwu for 1st respondent.
E.O. Ibegbu for 2nd set of respondents.For Respondent
