NABORE PROPERTIES LIMITED v. PEACE-COVER NIGERIA LIMITED & ORS
(2014)LCN/7042(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of March, 2014
CA/L/1249/2010
RATIO
WHETHER THE COURT IS TO GIVE THE WORDS THEIR LITERAL MEANING WHEN THE LANGUAGE OF THE STATUTE IS UNAMBIGUOUS
The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning. See SCC Nig Ltd v Elemadu (2005) 7 NWLR (Pt 923) 28 @ 59 F-G. Per CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
NABORE PROPERTIES LIMITED Appellant(s)
AND
1. PEACE-COVER NIGERIA LIMITED
2. NATIONAL INLAND WATERWAYS AUTHORITY
3. GOVERNOR OF LAGOS STATE
4. LAGOS STATE GOVERNMENT
5. B. O. ASHAFA (SECRETARY LAGOS STATE LAND USE ALLOCATION COMMITTEE) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Akanbi J of the Federal High Court Lagos in suit No FHC/L/CS/1031/2004 delivered on the 16th day of February 2009 granting the 1st Respondent leave to file a written address in opposition to the Appellant’s Preliminary Objection dated 22nd October 2008. By a Writ of Summons and Statement of Claim dated 9/11/04 and filed on the same day, the 1st Respondent as Claimant sought against the other Respondents in this Appeal as well as the Appellant as the 8th Defendant certain Declaratory reliefs, Orders and Injunctions with respect to an alleged interest in Lekki Inland Foreshore (Ebute Imoba) of Lagos State Lagoon.
On 11/3/08, the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Court. On 22/10/08, the Notice of Preliminary Objection was struck out due to failure of the Appellant to file a Written Address in support of the Preliminary Objection. The Appellant thereafter filed another Notice of Preliminary Objection on 23/10/08. Written Addresses were duly exchanged by the Appellant and the 1st Respondent. After the Appellant had filed and served his Reply on points of Law to the 1st Respondent’s Written Address, the said 1st Respondent brought a Motion on Notice dated 13/2/09 for leave to file a fresh Written Address in opposition to the Appellant’s Notice of Preliminary Objection. On the 16th of February when the Suit came up for hearing, the 1st Respondent’s Motion on Notice was heard and granted by the Lower Court, the Appellant’s opposition notwithstanding.
The Appellant, dissatisfied with the Ruling of the Trial Judge filed a Notice of Appeal containing 10 Grounds of Appeal. Before the hearing of the Appeal, the Appellant withdrew grounds 8, 9 and 10 thus leaving 7 Grounds of Appeal out of which he distilled 4 Issues for determination as follows:-
1. Whether it is open to the Learned Trial Judge to proceed and without regard to the clear provisions of the Rules of Court, particularly, Order 9 Rule 18 of the applicable Federal High Court, (Civil Procedure) Rules, 2000 to entertain the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and filed in this suit, as he so did; and to grant the same.
2. Whether the proceedings of the trial Federal High Court of the 16th February, 2009 leading to the decision being appealed against and the said decision, itself, per Akanbi J., granting the Plaintiff’s said Motion on Notice dated the 13th February, 2009 are not a nullity and, ought, thereby, to be set aside in their entirety.
3. Whether the trial Federal High Court did not fail in its duty to pronounce and/or to determine the manifest abuse of process occasioned by reason of the filing of the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and the Reliefs sought therein and/or that the same were calculated merely to overreach the Appellant.
4. Whether the Learned trial Judge could competently exercise the discretion and/or to grant the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and the Reliefs sought therein in absence of any material to support the same and in the face of the facts on the Records.
The 1st Respondent also formulated 4 Issues for determination as follows:
– Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.
– Whether the Appellantt right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.
– Whether the application dated 13th February 2009 was an abuse of court process and a calculated attempt to over reach the Appellant.
– Whether the exercise of discretion of the Trial Judge was done judicially and judiciously in the face of the facts presented in the affidavit in support of the application dated 13th February 2009.
The 2nd Respondent also distilled 4 Issues of Determination as follows:
i. Whether the decision of the Learned Trial Judge in the proceeding to hear and grant the application dated the 13th day of February 2009 on the 16h February 2009 was in any way in breach of the provisions of Order 9 rule 18 of the Federal High Court (Civil Procedure) Rules 2000.
ii. Whether the hearing and the granting of the motion dated 13th February 2009, on the 16th February 2009 by the Trial Judge was in breach of Appellant’s fundamental right to fair hearing as enshrined under the 1999 Constitution of the Federal Republic of Nigeria.
iii. Whether the motion dated 13th February 2009 and heard on the 16th February 2009 on its face constitutes an abuse of the process of the court below.
iv. Whether the Learned Trial Judge failed in his duty to exercise his discretion judicially and judiciously in granting the Order or prayers contained in the Motion on Notice dated 13th February 2009.
I consider Issues 1, 2 and 3 formulated by the 1st Respondent germane and exhaustive of the grounds of Appeal. I will therefore adopt the said 3 Issues in the determination of the appeal.
APPELLANT’S ARGUMENTS
ISSUES ONE AND TWO (Argued Together)
– Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.
– Whether the Appellant’s right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.
Learned Counsel for the Appellant submitted that since the 1st Respondent’s Motion on Notice dated 13/2/09 was served on the Appellant late on the same 13th of February being a Friday, the minimum of two clear days notice allowed under the Federal High Court (Civil Procedure) Rules 2000 could only begin to run for the purposes of the 1st Respondent’s Motion from Monday the 16th of February, 2009, which was the day when the said Motion was heard and granted. Counsel referred us to the cases of Tuoye Holdings Ltd v Niger-Benue Trans. Co. Ltd & Anor (2007) 49 WRN 27, 38-39 paragraphs 25-10, where in construing Order 18 Rule 17 of the High Court of Benue State (Civil Procedure) Rules, 1998 (which is in pari materia) with Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000, Allagoa JCA (as he then was) stated as follows:
“…since the motion was taken by the court…less than two days from the service of the motion…and in contravention of order 8 rule 17 of the High Court (Civil Procedure) Rules… had the trial Court the jurisdiction to entertain the motion? … most certainly there was a feature in the case which prevented or could have prevented the court from exercising its jurisdiction on that day and the said motion… was not properly before the court when it was taken.”
Learned Counsel thus contended that the Trial Court lacked jurisdiction to entertain the Motion before the expiration of two days from the date of service of the said motion in the absence of leave sought and obtained to that effect by the 1st Respondent.
Learned Counsel further submitted that the right of the Appellant to be heard on the 1st Respondent’s Motion apart from being a constitutionally entrenched right, is recognized by the Federal High Court (Civil Procedure) Rules 2000, which in Order 9 Rule 7 (1) provides “No motion shall be made without previous notice to the parties to be affected”.
Counsel contended that the Appellant was denied the time within which to file a Counter Affidavit as provided by the Rules of The Federal High Court and that the failure of the Trial Court to allow the Appellant to respond to the 1st Respondent’s Motion amounts to lack of fair hearing which goes to the root of the proceedings and further; that a Judgment or Order of Court given without compliance with the Rules of Court is a breach of the Right of Fair Hearing. Counsel relied on Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt 200) 659.
ISSUE THREE:
– Whether the application dated 13th February 2009 was an abuse of court process and a calculated attempt to over reach the Appellant.
Learned Counsel submitted that the 1st Respondent’s Motion of 13th February 2009 was aimed at overreaching the Appellant’s submission in his Reply on points of Law in that the 1st Respondent had earlier filed its Written Address dated 16th January 2009 which said Written Address was yet to be withdrawn and the Appellant had in response of same filed his Reply on points of Law. Counsel argued further that the purport of the 1st Respondent’s Motion was to abandon its earlier Written Address as well as the express admissions it made therein.
Counsel contended that even where a Counter Affidavit was not filed in opposition to a Motion, that omission does not render the depositions in the Supporting Affidavit incontrovertible where such depositions are false to the knowledge of the Court. Counsel submitted that the 1st Respondent embarked on a calculated attempt to mislead the Court since on the face of its Motion Paper, it applied for an Order of extension to file its Written Address and a deeming Order whereas at the time of moving the said Motion, Counsel stated thus:
“I have a motion dated 13/2/09 and filed same date. It is for an order granting leave to file written address and to withdraw an earlier one. I move in term.”
Counsel submitted that the Motion of 13th February 2009 was brought in bad faith and that since the 1st Respondent’s Counsel did not stick to what was contained in its motion paper, the Trial Court ought to have held that the said Motion had been abandoned.
Learned Counsel submitted relying on the case of Opuiyo v Omoniwari (2007) 39 WRN 1 P 10-11 paragraphs 45-5, where the Supreme Court held that a Court has a duty to consider the issues submitted to it for adjudication, that the Lower Court therefore had a duty to pronounce on the question of Abuse of Court Process which the Appellant raised before it. It was submitted that if the Lower Court had considered the issue of Abuse of Court Process, it would have reached the conclusion that the 1st Respondent’s Motion of 13th February 2009 was an abuse of court process and in that case the proper Order would have been a dismissal of that Motion.
1st RESPONDENTS ARGUMENT
ISSUES ONE & TWO (Argued together)
Learned Counsel for the 1st Respondent submitted that the Rules of Court are meant to guide the Courts in the administration of justice; that the aim of Courts should be to achieve the ultimate goal of justice and not to insist on slavish adherence to Rules of Courts where this will hinder the administration of justice. Counsel referred the Court to the observation of the Supreme Court in Fidelity Bank Plc v Monye (2012) ALL FWLR (Pt.631) 1412 at 1439 paragraphs E-F:
“…Whatever the case may be in the court proceedings, the rules are no more than an adjunct to the course of justice. The court must never interpret a rule of court to defeat access to justice which is guaranteed by the Constitution”.
Learned Counsel submitted that from the wordings of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000, the rule in question is not sacrosanct. The provision Counsel argued, gives the court some level of discretion hence it says “Unless the court gives special leave to the contrary…” It is Counsel’s contention that special leave does not necessarily mean a formal application and that the court may exercise its discretion to allow an application to be heard in less than 2 days after service especially where the application is a harmless one.
Counsel submitted that the 1st Respondent’s application of 13th February 2009 was an innocuous one as the Applicant merely sought to replace an old Written Address with a new one because the old one did not address all the issues raised in its Counter Affidavit which issues had been addressed by the Appellant in his own Written Address. Counsel submitted that if the Appellant wanted to oppose the application, he should have asked the Court for time to file a Counter Affidavit since his time to file same was still running. However the Appellant did not ask for time to respond but waived his right of time to respond and went ahead to oppose the application. Counsel cited the case of Eke v Arpu (2010) ALL FWLR, (Pt 510) 640 at 655-656 paragraphs F-B where this court held inter alia that:
“…In very simple everyday language waiver means the abandonment of one’s right or entitlement by condoning the breach or non-compliance with that right or entitlement in law, it can either be expressed or implied.
Counsel argued further that the situation would have been different if the Appellant had requested for time to respond to the 1st Respondent’s Motion and was refused. Counsel is of the view that it is only in such a situation that the Appellant could complain of non compliance with the Rules of Court and lack of fair hearing.
Counsel submitted that having taken part in the proceedings by opposing the application and asking for costs and time to react to the new Written Address, the Appellant cannot now turn around to complain of non compliance and lack of fair hearing. Counsel submitted that considering the age of this case which was filed in 2004 and had not gone to trial by 2009, it was expedient for the Trial Court to proceed with the matter expeditiously and that the Court exercised its discretion judiciously by allowing the application which was a harmless one to be heard less than 2 days after it was served. Counsel submitted finally that since the Appellant responded to the application in open court and opposed it, his fundamental right to fair hearing was not denied.
ISSUE THREE:
Counsel submitted that the Motion of 13th February 2009 was not an abuse of Court Process because the issue that was not addressed in the earlier Written Address had been raised in paragraphs 8 and 9 of the 1st Respondent’s Counter Affidavit in opposition to the Appellant’s Preliminary Objection. It is therefore not out of place or an abuse of Court Process for the 1st Respondent to want to comprehensively address all the issues raised in its Counter Affidavit. Counsel submitted that the Motion of 13th February 2009 was not an attempt to overreach the Appellant since the Court granted the Appellant time to react to the 1st Respondent’s fresh Written Address as well as cost for the inconvenience of reacting to the new Written Address.
2ND RESPONDENT’S ARGUMENTS
ISSUE ONE:
Learned Counsel for the 2nd Respondent submitted that Courts have inherent powers to apply the Rules of Courts as the course of justice demands and that the essence of Rules of Court is to guarantee quick dispensation of justice. See Chief Nicholas Banna v Telepower Nigeria Ltd. (2006) 27 NSCQR 19, 908 922.
Counsel submitted that assuming but not conceding that there was any irregularity in the proceedings of the Court below regarding compliance with Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000, the provision of Rule 5 of the same Order cures any such irregularity as it provides: “A motion may be heard at anytime while the court is sitting”. Counsel submitted therefore that the Trial Judge had discretion to hear the 1st Respondent’s Motion of 13th February 2009 at any time. On the effect of non-compliance with the provisions of the Rules of Court, Counsel referred the Court to the observation of the Supreme Court in Nipol Limited v Bioku Investment And Property Co. Limited (1992) 4 NCLR 94 @ 10:
“While non-compliance should be treated as an irregularity and shall not nullity the proceedings, such proceedings can however be set aside wholly or in part on ground of irregularity, and not because the proceedings are a nullity. Therefore whether or not to set aside any proceeding for irregularity as a result of non-compliance depends on the circumstances of the case and the nature of the irregularity. In effect what Order 9 Rule 5 has done is to give the court the discretion whether or not to proceed to hear a motion on ground of irregularity. It is no longer mandatory to annul proceedings arising from non-compliance”.
ISSUE TWO:
Counsel submitted that whatever travesty that was committed against Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 was cured by Rule 5 of Order 9 and that having been compensated by the award of cost of N5,000 the Appellant’s fundamental right to fair hearing had not been violated. Counsel submitted further that the issue of fair hearing would only have arisen if the Appellant was denied the right of filing a Reply to the 1st Respondent’s new Written Address.
ISSUE THREE:
Counsel cited the case of African Reinsurance Corporation v JDP Construction Nig Ltd (2003) 13 NWLR (Pt 838) 609 @ 635 F-G where the Supreme Court said that Abuse of Court Process:
“Is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal processes…”
Counsel submitted that nothing from the records of the proceedings of the court below showed that the 1st Respondent’s application dated 13th February 2009 was consistent with an abuse of Court Process. Counsel submitted further that there is no limit to the number of Written Addresses parties in a proceeding can file in the absence of contrary directives from the Court. A party who filed multiple Written Addresses is usually at liberty to decide which one to rely on and thereafter withdraw the others.
RESOLUTION
ISSUE ONE:
On 22/10/08 the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Federal High Court. Written Addresses were duly exchanged between the Appellant and the 1st Respondent. The Appellant filed and served on the said 1st Respondent his Reply on points of Law. On 13/2/09 the 1st Respondent served on the Appellant a Motion on Notice dated the same day for leave to file a fresh Written Address. On the 16th of February when the Suit came up for Hearing, the 1st Respondent’s Motion on Notice was heard and granted by the Lower Court despite being opposed by the Appellant.
The thrust of the Appellant’s argument is that since the Motion was served on the Appellant late on the 13th of February being a Friday, the minimum notice of two clear days allowed under the Federal High Court (Civil Procedure) Rules 2000 began to run on Monday the 16th of February, 2009, which was the day when the said Motion was heard and granted. The Appellant contended therefore that the Trial Court lacked jurisdiction to entertain the Motion before the expiration of two days from the day it was served in the absence of leave sought and obtained to that effect by the 1st Respondent.
Order 9 rule 18 of the Federal High Court (Civil Procedure) Rules 2000 provides as follows:-
“Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a motion and the day named in the notice for hearing the motion.”
The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning. See SCC Nig Ltd v Elemadu (2005) 7 NWLR (Pt 923) 28 @ 59 F-G. In this regard the wordings of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 are clear and unambiguous. The Section must be accorded its ordinary literal meaning which is that a party who intends to move a motion in court should give the other party at least two clear days notice or in the alternative seek and obtain the leave of the Court to move the motion before the expiration of two days.
The Courts have in several cases observed that Rules of Court are not mere rules but are backed by the full force of the law.
“They partake of the nature of subsidiary legislation by virtue of section 18 (1) of the Interpretation Act. Consequently, Rules of Court have the force of law. That is why rules of Court must be obeyed. And when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless but should sanction the noncompliant party, otherwise the purpose of enacting the Rules of Court will be defeated” Owners of the MV ‘Arabella’ v Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt 182) 1097 @ 205-206 G-C. See also A.S.T.C. v Quorum Consortium Ltd. (2009) 9 NWLR (Pt.1145) 1 @ 21 F-H
Learned Counsel for the 1st and 2nd Respondents submitted that the aim of Courts is to achieve the ultimate goal of justice and not to insist on slavish adherence to Rules of Courts where such will hinder the administration of justice. That may well be so but it is difficult to see how compliance with Order 9 Rule 18 of the relevant Rules could hinder the administration of justice. 1st Respondent’s counsel had also submitted that the special leave envisaged by Order 9 Rule 18 does not necessarily mean a formal application. This submission is not well founded. To seek Leave means to ask for Permission. It follows that where leave is a statutorily mandatory precondition, it is a condition precedent to the exercise of the action in question. In Otu v ACB Int’l Bank Plc (2008) 3 NWLR (Pt.1073) 197- 198 paragraphs H-B the Court held that:
“Where leave is required either by the Constitution or in the Rules of Court before filing a Motion, and leave is not sought and granted, the Court has no jurisdiction to grant the Motion as it is incompetent”.
I also find curious the 2nd Respondent’s submission that any irregularity in the proceedings of the Court below regarding compliance with Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000, is cured by Order 9 Rule 5 as that Rule provides:”A motion may be heard at anytime while the court is sitting”. The literal interpretation of the above rule is clearly that a Judge may hear a motion at any stage of a Proceeding; it does not mean that the rule has done away with the rule which requires at least two day notice on the respondent before the hearing of the motion. When the motion is ripe for hearing, it may be heard at any time while the court is sitting. There is no doubt that a Trial Judge has the power to exercise his discretion to ensure that the aim of justice is satisfied by abridging time when necessary if a proper application is made to that effect, but a Judge does not have the power to rely on one rule to jettison the provision of other sections of the Court’s Rules of Procedure.
The Appellant in his Brief cited the case of Okafor v A-G., Anambra State (1991) 6 NWLR (Pt.200) 659 as authority that a Judgment or Order of Court given without compliance with the Rules of Court is a breach of the Right of Fair Hearing. This of course cannot be. Every case of non- compliance with the Rules of Court cannot possibly result in a breach of the Right of Fair Hearing. The facts of the above authority are that the Court of Appeal in error gave a judgment earlier than the date indicated and without an oral hearing. The decision of the Supreme Court is that a judgment which is given without compliance with Rules of Court and which non-compliance has breached a fundamental human right such as the right of fair hearing, is a nullity. See pages 678-679 F-D. The facts of the case do not apply to the present situation.
Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 laid down the rules for computation of time. That Order states as follows:-
1. Where by any written law or any special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and the time is not limited by hours the following rules shall apply-
(a) ……………………
(b) ……………………
(c) “where the time is less than five days, public holiday, Saturday or Sunday shall be reckoned as part of the time;
On a literal interpretation of the above provision, the minimum notice of two clear days allowed under the Federal High Court (Civil Procedure) Rules 2000 for hearing the 1st Respondent’s Motion dated 13th February, began to run on Saturday the 14th and expired on Sunday the 15th of February, 2009. Consequently, the Motion was in fact ripe for hearing on Monday the 16th of February 2009 when it was heard and granted.
On Issue One, I hold therefore that the Trial Court was not in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by hearing and ruling on the said application dated 13th February 2009 on the 16th of February 2009.
On Issue two, the Appellant contended that he was denied the time within which to file a Counter Affidavit as provided by the Rules of The Federal High Court. The 1st Respondent submitted that if the Appellant had wanted to oppose the 1st Respondent’s application, he would have asked the Lower Court for time to file a Counter Affidavit since his time to file same was still running. The Appellant however did not ask for time to respond but waived his right of time to respond and went ahead to oppose the application. Both 1st and 2nd Respondents in their Briefs submitted that the issue of fair hearing would only have arisen if the Appellant was denied the right of filing a Reply to the 1st Respondent’s new Written Address.
On the 16th day of February 2009, in the course of addressing the Court, the Appellant stated thus:
Appellant: “… It was however on Friday at about 3’clock that we received motion dated 13th February and filed by the Plaintiff’s Counsel wherein they are asking for an order to file a new written address and seeking to withdraw an earlier one filed to which we have responded.”
Clearly, from the proceedings of Court, the Appellant called the attention of the Lower Court to the Motion filed by the 1st Respondent but neither made a formal complaint with a view to stopping the hearing of the Motion nor requested for time to respond to the said Motion. If the Appellant had requested for time to file a reply to the 1st Respondent’s Motion, the Trial Judge would have obliged him. In the circumstance the rule that a court is not allowed to embark on a voyage of discovery on its own is called to question. A Court must apply itself only to the issues submitted to it by the parties: Akwuaka v Lyam (2008) 2 NWLR (Pt.1072) 464 paras G-H
In his Ruling the Learned Trial Judge in fact made reference to the fact that the 1st Respondent’s reason for making the application had not been controverted by a Counter Affidavit. Again the Courts have over the years stated that a party who fails to take steps to be heard cannot complain of denial of fair hearing. Ajudahun v Ajudahun (2000) 4 NWLR (Pt.654) 605 at 615 para E.
In the circumstance I agree with the 1st and 2nd Respondents that the issue of fair hearing would only have arisen if the Appellant was denied the right of filing a Reply to the 1st Respondent’s new Written Address. After the 1st Respondent moved his application, the Appellant still had an opportunity to request for an adjournment to enable him file a Counter Affidavit in response to that application. He did not do so. Rather he chose to respond to the Respondent’s application and opposed the said application in the following words:
“We oppose the application. This is because we have filed our reply on the earlier address filed. It is a gross abuse of court’s process”.
After the Trial Judge granted the 1st Respondent’s application, the Appellant applied for costs and time to react to the new Written Address and was granted both prayers. It is too late in the day for the Appellant to turn around to complain of non compliance and lack of fair hearing. The Appellant waived his right to file a Counter Affidavit when he did not ask for adjournment to enable him file a counter-affidavit but went ahead to oppose the 1st Respondent’s application. As counsel rightly submitted:
“…In very simple everyday language, waiver means the abandonment of one’s right or entitlement by condoning the breach or non-compliance with that right or entitlement in law, it can either be expressed or implied: Eke v Arpu (2010) ALL FWLR, (Pt.510) 640 at 655-656 paragraphs F-B
The Supreme Court considering the principle of Waiver in the case of Amaechi v INEC (2008) 5 NWLR (Pt 1080) 227 @ 449 C-D held inter alia that the Principle of Waiver
“…is to the effect that where an action was commenced by any irregular procedure and a Defendant took steps to participate in the proceedings…he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity which he himself has accepted, waived or acquiesced”.
Again in Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489 @ 537-538 H-A, the Supreme Court held as follows:-
“Where an action has been commenced by a procedure which is irregular; a party who took active part in the proceeding without raising a formal complaint to the irregular procedure cannot be heard later to apply to set aside the action on the ground of irregularity he acquiesced in”.
In the instant case, there was nothing irregular in the proceedings, but assuming there was, the Appellant failed to raise a formal complaint and the steps taken by him after discovering the purported irregularity amounted in essence to a waiver.
On Issue two, I hold that the Trial Court did not violate the Appellant’s right to fair hearing by hearing and determining the application dated 13th February 2009.
On Issue three, it is trite as posited by Appellant’s Counsel that a Court has the duty to consider and pronounce on every issue submitted to it for adjudication. See Afro-Continental Nig. Ltd. v Co-operative Assoc. of Professionals. Inc. (2003) 5 NWLR 303 @ 317-318, F-B
However a perusal of the Ruling of the Lower Court does not support Appellant’s contention that the Court did not pronounce on the issue of Abuse of Court Process. The Ruling of the Court was as follows:
“I have read the motion on notice and affidavit in support. The reason adduced in the affidavit evidence for the application is not frivolous or vexatious, They are good reasons which have not in any way been controverted by a counter affidavit”.
The view of the learned trial Judge shows that he did not consider the application an abuse of court process. Abuse of Court Process has severally been described as a ‘frivolous’, ‘vexatious’, ‘annoying’, or ‘oppressive’ misuse of the process of Court.
Counsel cited the case of African Reinsurance Corporation v JDP Construction Nig Ltd (2003) 13 NWLR (Pt 838) 609 at 635 F-G where the Supreme Court said that Abuse of Court Process “is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal processes…” The Trial Judge in his judgment stated “The reason adduced in the affidavit evidence for the application is not frivolous or vexatious”. If this statement is not a pronouncement on the issue of Abuse of Process, what then is it? The statement is in fact a direct response to the Appellant’s submission that the 1st Respondent’s Motion is an abuse of court process. The Lower Court therefore pronounced on the issue of abuse of Court Process.
Again the Principle as correctly submitted by the Appellant is that even where a Counter Affidavit was not filed in opposition to a Motion, that omission does not render the depositions in the Supporting Affidavit incontrovertible. The practice is that where only an Applicant filed an affidavit in support of an application in a motion on notice, his affidavit must be cogent, compelling and unchallenged in order to entitle the applicant to a favourable ruling. Ruling in such a situation will not be entered for the Applicant as a matter of course: Lawal-Osula v UBA Plc (2003) 5 NWLR (Pt.813) 376 @ 389 G-H.
However Appellant went too far when he claimed that the depositions in the 1st Respondent’s Affidavit though unchallenged, were false to the knowledge of the Court. How, if I may ask did the Appellant know that the said depositions were false and to the knowledge of the Court? Appellant’s Counsel must have supernatural powers that enabled him read the mind of the Trial Judge. Legal contests are won by precedents and superior argument, not by making strong unfounded allegations!
The Appellant’s grouse with the 1st Respondent’s Motion of 13th February 2009 is that he had filed his reply on the earlier Written Address filed by the 1st Respondent. He argued that the application was therefore brought in bad faith and aimed at overreaching the Appellant’s submission in his Reply on points of Law to the 1st Respondent’s Written Address. Appellant’s Counsel argued further that the purport of the 1st Respondent’s Motion was to abandon its earlier Written Address as well as the express admissions it made therein. The Appellant’s objection to the application is apparently based on a misconception of the law on this issue. The law is that a Party may remedy errors in his process even after a Preliminary Objection has been filed. The fact that a Preliminary Objection has been filed showing errors in a process does not prevent the applicant from making an application for correcting those errors or starting the process afresh on a more appropriate footing. In Shanu v Afribank (Nig) Plc (2000) 13 NWLR (Pt 684) 392 @ 404 F-G, the Supreme Court held as follows:
“The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the applicant’s appeal is without substance. The applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing”.
Further in Tsokwa Oil Marketing Co. V Bank of the North (2002) 11 NWLR (Pt 777) 163, the Apex Court Per OGUNDARE JSC at page 185-186 observed:
“…In granting leave to file additional grounds 9 and 10, no time limit was imposed for the filing. It follows that when the defendant filed the grounds on 22/12/94, it could not be said that the grounds were filed out of time. Obviously, the defendant’s earlier brief contained argument on grounds of appeal that were yet to be filed. To correct this error and meet plaintiff’s objection, the defendant in 1995 filed another brief captioned “amended appellant’s brief incorporating arguments on grounds 9 and 10 that were filed in December 1994. What then is Plaintiff’s complaint? I too see no merit in his complaint. The Court below rightly struck out his objection.”
Just as in Tsokwa Oil Marketing Co. v Bank of the North above; in the instant case, the 1st Respondent needed to file a new Written Address in order to address the issue of Estoppel which it raised in paragraphs 8 and 9 of its Counter Affidavit but failed to address in its first Written Address. It filed an application to rectify this error. What then is the Appellant’s complaint? I see no merit in his complaint. The Court below rightly granted the 1st Respondent’s prayers!
The Appellant contended that the 1st Respondent embarked on a calculated attempt to mislead the Court since on the face of its Motion Paper, it applied for an Order for extension of time to file its Written Address and a deeming Order whereas at the time of moving the said Motion, Counsel added a prayer to withdraw the earlier Written Address. The 2nd Respondent’s counsel had submitted rightly in my view that there is no limit to the number of Written Addresses a party in a proceeding can file in the absence of contrary directives from the Court and that a party who files multiple Written Addresses is usually at liberty to decide which one to rely on and thereafter withdraw the others. It is trite that a party is entitled to withdraw a Process he filed in court in order to correct a defect and to re-file same. F.C.E. v Okene Ogbonna (2006) 7 NWLR (Pt.979) 282 Ratio 6.
Interestingly, the Appellant at the Hearing stated as follows:
“It was however on Friday at about 3’clock that we received motion dated 13th February and filed by the Plaintiff’s Counsel wherein they are asking for an order to file a new written address and seeking to withdraw an earlier one filed to which we have responded.”
The only reason why the Appellant anticipated the 1st Respondent’s intention of withdrawing the earlier motion though the 1st Respondent did not mention this on the motion paper is because that is the generally accepted procedure. The Rules of Procedure allow a Party to withdraw a Court process from the Court. Once a Process has been withdrawn from the court, the resultant position is that the same is treated as if it had never been filed and the issues raised in the withdrawn process become lifeless issues, which the Court will not consider in the resolution of the real issues before it. Since a Preliminary Objection does not stop the 1st Respondent from filing a fresh process, it follows that he also has a right to apply to the court to withdraw the first written Address. In that case the Court would strike the first Written Address out and the same would be treated as if it was never in existence.
In the case of Akuneziri Vs Okenwa (2000) 15 NWLR (Part 691) @ 533 the Supreme Court held that “where there is a withdrawal of an appeal, the resultant position is as if there was never any appeal filed by the Appellant….” And in the case of Ajao v Ademola (Supra) this court held that: “Where a relief claimed in a suit is abandoned or withdrawn it automatically ceases to exist and the court is without jurisdiction to grant it”
Evidently, the intention of the 1st Respondent to file a new Written Address and withdraw the first one is a known procedure in our Courts. This procedure allows a party to rectify errors he may have made in his previous process. The only compensation available to the other party in such a case is to apply for cost. The 1st Respondent’s Motion of 13th February 2009 has not been shown to have been made in bad faith and nothing from the records of the proceedings of the court below shows that the 1st Respondent’s application was an attempt to overreach the Appellant’s submission. I hold that the application dated 13th February 2009 was neither an abuse of court process nor a calculated attempt to overreach the Appellant.
Though I found it unnecessary to consider the issue of irregularity in this Appeal, I wish to comment on a part of the 2nd Respondent’s Brief which I find reprehensible. In quoting an observation of the Supreme Court in the case of Nipol Limited v Bioku Investment And Property Co. Limited (1992) 4 NCLR 94 @ 10 or (1992) 3 NWLR (Pt 232) 727 wherein that Court considered the effect of non-compliance with Order 2 of the Rules of the Supreme Court of England, Counsel changed some parts of the observation of the Court and inserted details that were applicable to her argument. The correct quotation from the law report is this:
“…..while non-compliance should be treated as an irregularity and shall not nullify the proceedings, such proceedings can however be set aside wholly or in part on ground of irregularity, and not because the proceedings are a nullity. Therefore whether or not to set aside any proceeding for irregularity as a result of noncompliance depends on the circumstances of the case and the nature of the irregularity. In effect what Order 2 has done is to give the court the discretion whether or not to set aside proceedings on ground of irregularity…..” P746 E-H
At page 5 paragraph 4.7 of her brief, learned counsel purportedly quoting from the judgment replaced the highlighted part with the following:
In effect what Order 9 Rule 5 has done is to give the court the discretion whether or not to proceed to hear a motion on ground of irregularity…”
This is clearly unethical conduct. Perhaps learned counsel acted out of ignorance. If it was deliberate, such an unethical conduct impugns the integrity of Counsel. It would have been more honourable to set out the quotation as is and then to apply it to Counsel’s submission rather than to distort the quotation of the Court. The conduct is deceitful. See Momodu & Ors v. Momoh & Anor (1991) 1 NWLR (Pt.169) 608 and Okomu Oil Palm Ltd v Okpame (2007) 3 NWLR (Pt.1020) 71 @ 85 C-E where both the Supreme Court and the Court of Appeal condemned as unethical the conduct of counsel to the deceased in concealing the death of the deceased, one of the parties to the suit until judgment was reserved.
In conclusion I hold that the Learned Trial Judge correctly exercised his discretion in granting the 1st Respondent’s application dated 13th February 2009. I accordingly hold that this appeal lacks merit. It is hereby dismissed. I affirm the Ruling of Akanbi J of the Federal High Court sitting in Lagos in Suit No FHC/L/CS/1031/2004 delivered on the 16th Day of February 2009. I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. He covered the field and I will only emphasize that the fact that a preliminary objection is filed will not bar a party from correcting any errors that will put them on the right footing – see Tsokwa Oil Marketing Co. V. B. O. N. Ltd. (2000) 11 NWLR (pt. 777) 163 SC and Shanu V. Afribank (Nig.) Ltd (2000) 13 NWLR (Pt.392) SC, wherein it was held-
‘The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the Applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing”.
And Nalsa & Team Associates V. NNPC (1991) 8 NWLR (pt.212) 652, where the Supreme Court held that when a party detects an error in the proceedings, which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should be not be denied the opportunity to do so. As Karibi-Whyte, JSC, said –
“It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it”.
In this case, the Appellant’s argument to the contrary lacks merit. Thus, I also dismiss the appeal and abide by the consequential orders in the lead Judgment including the order as to no costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the judgment just delivered by my learned brother C. E. Iyizoba JCA. My Lord has painstakingly addressed every issue in contention in this appeal and as such I have nothing extra to add except to emphasize that the awesome power of a Judge in the exercise of judicial discretion should not be underestimated provided such exercise of discretion is done judicially and judiciously. In UBN PLC V. ASTRA BUILDERS (2010) 41 NSCOR 1016 @ 1038-1039 the Supreme Court per Adekeye JSC held that:
“An exercise of discretion is an act or deed based on one’s personal judgment in accordance with one’s conscience, free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by previous decision of another court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise of a judicial discretion by a court for if it happens, discretion becomes fettered. ”
See also HUNGWA V. UWUOKWU (2011) LPELR-3754(CA); OGUNDOYIN V. ADEYEMI (2001) FWLR (PT.71) 1741 and ODUSOTE V. ODUSOTE (1971) NMLR 228.
The exercise of discretion by the learned trial Judge in granting the Respondent’s application to file another written address at least before the matter was adjourned for Ruling cannot amount to an act of overreaching, the Appellant having not been denied the right to file a Reply on points of law if he wanted to do so. This Court cannot interfere with such proper exercise of discretion by the lower court.
For this and the more comprehensive reason given in the lead judgment, I also dismiss the appeal for lacking in merit. I abide by the consequential orders made in the lead judgment including that of costs.
Appearances
I. O. Aniakor Esq. with Pamela Unegbu (MS)For Appellant
AND
D. C. Kemdirim Esq. for the 1st Respondent
Queen O. Uba (Mrs.) for the 2nd Respondent
B. T. Adaramewa Esq. for 3rd – 5th RespondentsFor Respondent
