G. OFODILE OKAFOR, OON, (SAN) v. PEOPLES DEMOCRATIC PARTY (PDP)
(2014)LCN/7137(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of April, 2014
CA/A/11/2012
RATIO
RATIO
DETERMINATION OF THE RATIO DECIDENDI OF A CASE
It is now well settled that under the doctrine of stare decisis, lower courts are bound by the theory of precedent; that is by the decision of a higher court where the same points come up for litigation. It is the law that a decision of a competent jurisdiction, no matter if it seems palpably wrong, unattractive or unsupportable remains binding until set aside by a superior court of competent jurisdiction. The Supreme Court, being the highest court of the land, all subordinate courts are bound by its decisions. - Clement & Anor v. Iwuayanwu (supra), Osho v. Foreign Finance Corp (supra); Atolagbe & Anor v. Awuni & Ors (1997) 9 NWLR (Pt 522) 536 at 565; Abacha & Ors v. Fawehinmi (2000) 6 NWLR (pt 660) 228 at 317 paras D-E.
As rightly posited by the learned Senior Counsel, the doctrine of stare decisis is well while it is open for a lower court to depart from its own decision, the lower courts cannot refuse to be bound by a decision of the higher court even if it is reached per incuriam.
Indeed, the Supreme Court, being the highest court of Nigeria, its decisions are binding on every court in this country - Obiuweubi v. CBN (2011) 7 NWLR (Pt 1247) 465 at 497.
However, it is also the law that it is the ratio decidendi of a case of a higher court that binds a lower court. It is the principle of the decision of the high court that is binding. In other words, it will be dangerous to consider any pronouncement of any superior court in vacuo and without reference to the peculiar facts and circumstances of the case upon which the pronouncements were made. This is because the facts in each case frame the issues that are decided by the court. A case in point rightly cited by the Respondent is Na-Bature v. Mahuta (1992) 9 NWLR (Pt. 263) 85 where Tobi JCA (as he then was) stated at p. 103 thus –
“A ratio of the case can only be determined in relation to the facts of the case and not in vacuo. It is the facts of the case that enrich a ratio. Therefore it is futile exercise to take a ratio of a case outside the facts and parade it before a court of law in the name of the rule of stare decisis.” Per TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OFR Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
G. OFODILE OKAFOR, OON, (SAN) Appellant(s)
AND
PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A.:(Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of Honourable Justice O.A. Musi of the Federal Territory High Court delivered on 1st December, 2011.
The Appellant as Plaintiff commenced a suit against the Defendant, now Respondent on the undefended list procedure for his professional fees. The Endorsement as to the claim reads –
“(a) The sum of N50,000,000.00 (Fifty Million Naira) only being the sum due and owing as his professional fees for representing the defendant in election petitions in Ebonyi State, in 2007; and
(b) 10% court interest from the date of judgment until the liquidation of the entire judgment sum.
(c) N250,000.00 being cost of this action.”
The Respondent was duly served with the processes which indicated the return date to be 1/12/2011. On that day, the Respondent had not filed any process particularly there was no Notice of Intention to defend the suit. Instead it sought for an adjournment to allow the Respondent file a defence, stating that they “are ready and willing to defence (sic) this suit to its logical conclusions.” The Appellant objected stating that the court was duty bound to give judgment to the Appellant in accordance with the Rules governing Undefended List. The court granted the adjournment to 13/2/2011 despite stiff opposition from the appellant’s counsel on the basis of fair hearing.
Being dissatisfied with the Ruling, the Appellant filed a Notice of Appeal to this Honourable Court containing two grounds which I will reproduce hereunder so as to show clearly the grievance of the Appellant –
“1. The learned trial judge erred in Law when under the Undefended List procedure, he failed to hear and give judgment to the Plaintiff, in the absence of any Notice of Intention to defend and affidavit disclosing a defence on the merit from the defendant. And this occasioned a miscarriage of justice.
2. The Learned trial Judge erred in Law when he refused to follow and be bound by the decision of the Supreme Court under the rule of stare decises in the case of Planwell Watershed Limited v. Ogala (2003) 12 S.C. (Pt. 11) 39
(c) Despite this decision and a host of other similar decisions of the Apex Court, the trial judge refused to hear the suit.”
The reliefs sought from the court are:
1. An order setting aside the ruling of the trial Judge made on the 1/12/2011.
2. An Order of the Court of Appeal hearing the suit and giving judgment to the Plaintiff as per the claim.
In accordance with the Rules of court, Briefs of Argument were duly filed by the parties.
In the Brief of Argument filed by the Appellant for himself, two issues were formulated for determination namely –
1. WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN GRAVE ERROR WHEN HE REFUSED TO HEAR THE SUIT AS UNDEFENDED LIST AND ENTER JUDGMENT FOR THE PLAINTIFF IN THE ABSENCE OF ANY NOTICE OF INTENTION TO DEFEND. (GROUND 1)
2. WHETHER THE LEARNED TRIAL JUDGE WAS NOT BOUND TO FOLLOW THE DECISION OF THE SUPREME COURT IN THE Planwell Watershed Ltd. v. Ogala (2003) 18 NWLR (Pt. 852) 478. (Ground 2)
The Respondent, in the brief of argument filed by Chief Olusola Oke on 19/9/2013 but deemed properly filed on 7/10/2013 condensed the Appellants two issues into one thus –
“WHETHER GIVEN THE FACTS OF THIS APPEAL AND THE LAW, THE TRIAL COURT WAS NOT RIGHT IN REFUSING TO ENTER JUDGMENT FOR THE APPELLANT BUT RATHER GRANT THE RESPONDENT’S APPLICATION FOR ADJOURNMENT OF THE SUIT.”
However for purposes of convenience, I adopt the two issues as couched by the Appellant. This is more so as Respondent in their brief still responded to issue 2 as formulated by the Appellant in their paragraphs 4.47 to 5.5.1
ISSUE 1
It is hotly contested and brilliantly articulated by the learned Senior Counsel for the Appellant, while citing several authorities to the effect that once a suit placed on the Undefended List comes to court on the return date, in accordance with the Rules of court, the court has only one duty, namely to see whether the defendant has filed a Notice of Intention to defend and an affidavit disclosing a defence on the merit. If no such notice has been filed within the prescribed period before the return date, the court has no choice in the matter but to proceed to judgment – Ben Thomas v. Sabi Furniture (1989) 5 NWLR (Pt.123) 523 at 529, I.T.B. PLC v. K.H.C. Ltd (2006) 3 NWLR (Pt. 968) 443 at 458-459 E-C. He submits that the trial judge has no discretion in the matter as the word “shall” in the provisions of Order 21 Rule 4 of the FCT (Civil Procedure) Rules 2004 is mandatory as having been given judicial interpretation such as in the case of Tahir v. J. Udeagbala Holdings Ltd (2004) 2 NWLR (Pt. 85) 438 at 451-452. He submits that the learned trial judge wrongly exercised his discretion to grant an adjournment as he did not follow the rules concerning matters under the Undefended List – Erinfolami v. S.G.B. (Nig) Ltd (2008) 7 NWLR (Pt. 1086) 306 at 334. According to him, the counsel that appeared in court is a stranger to the proceedings since the only recognized way under the Rules is to file a Notice of Intention to defend the action. He further stoutly submitted that the court wrongly premised its decision to allow the Appellant’s application for adjournment on the principle of fair hearing because the Appellant was given ample opportunity to be heard but chose not to utilize. Appellant cannot therefore be heard to complain – Zabely Int’l Ltd v. Omogbehin (2005) 17 NWLR (Pt 953) 200 at 224; Eringolami v. S.G.B. Nig Ltd (Supra), Bill Construction Co. Ltd v. Iman & Sons Ltd (2006) 19 NWLR (Pt 1013) 1 at 74; Adudro v. Alaya (2007) ALL FWLR (Pt. 381) 1653 at 1672-1673 para H-A; (2002) 15 NWLR (Pt 1057) 312 at 337.
On issue 2, the learned Senior Counsel submitted that by the doctrine of stare decis, lower courts are bound by the theory of precedent however wrong they are and whatever injustice they inflict – Clement v. Iwuanyanwu (1989) 3 NWLR (Pt 107) 89; Osho v. Foreign Finance Corp (1991) 4 NWLR (Pt 184) 157; Rossek v. A.C.B. Ltd (1993) 8 NWLR (Pt 312) 382; Onah v. NEPA (1997) 1 NWLR (Pt 484) 680; Dalhatu v. Turaki (2003) 15 NWLR (Pt 848) 310. The learned trial Judge, he argued was therefore bound by the decision of the Supreme Court in the case of Planwell Watershed Ltd. v. Ogola (2003) 18 NWLR (Pt. 852) 478; otherwise his refusal amounts to judicial rascality. Learned Senior Counsel then urged the court, by virtue of Section 23 of the Court of Appeal Act, 1978 as amended to hear the suit as Undefended List as per the claim.
Learned counsel for the Respondent, submits also spiritedly that given the facts of this case and the law, the learned trial Judge was right in exercising his discretion, in refusing to enter judgment for the Appellant and instead granted the Respondent’s application for adjournment; in order to meet the justice of the case – Ughelli South L.G.C. v. Edojakwa (2006) All FWLR (Pt. 308) 1301. He emphasized that the provisions of Order 21 Rules 1-5 of the FCT (Civil Procedure) Rules 2004 do not divest the trial court of its discretionary jurisdiction in the application of its Rules including Order 35 Rule 6, Order 46 Rule 1 and Order 25 Rule 3(1) to adjourn such proceedings or extend time to take any step provided in the Rules in the interest of justice and fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 in line with plethora authorities.
It was further submitted for the Respondent that where there are two applications before a court requiring to be heard, the interest of justice demands that the application, determination of which would save the substantive action, as in this case should be heard just so as to ensure ultimately that the dispute between the parties is decided on its merits – Mobil Prod. (Nig) Ltd. v. Monokpo (2003) 18 NWLR (Pt 852) 346 at 414-415. On the mandatory intendment of the word Chief Olusola Oke submits that it is not in all cases that the word connotes compulsion but can be interpreted to mean “may” in deserving cases in the interest of justice – Okwokwo v. UBA PLC (2011) 16 NWLR (Pt 1274) 614 at 628; Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) 114 at 140. Learned Counsel submits that the Appellant failed to demonstrate how the trial judge wrongly exercised his discretion and how such an exercise by the trial court resulted in miscarriage of justice to warrant the reversal of the court’s decision – Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320 at 349. Learned counsel, after summarizing the facts and circumstances of the Respondent’s case, submitted that the learned trial judge rightly exercised his discretion in allowing the adjournment for to do otherwise could have resulted in miscarriage of justice – Alsthom S.A. v. Saraki (2000) FWLR (Pt. 22) 22. In conclusion, he submitted that the authorities cited by the Appellant are totally inapplicable given the facts of the appeal.
Responding to Issue 2, Chief Oke submits that the learned trial judge was not bound by the authority of Planwell Watershed Ltd v. Ogala (supra) as the facts of that case are clearly distinguishable from the facts of this appeal. The cases relied upon by the Appellant on this issue he noted are cited out of con and not applicable to the facts of this case. Finally, he urged us to dismiss this appeal and affirm the decision of the trial court.
The Appellant filed a Reply Brief on 11/10/13. It is essentially a reply to issue No. 1 and practically an amplification of same. He submits that Order 46(1) of the High Court of Justice Rules is designed by the draftsmen to fill-in the gap where there is a lacuna. Where there is specific provision and general provision, the specific provision prevails – FMBN v. Olloh (2002) 4 SC (Pt. II) 117 at 122 para 30-35. In this appeal, Order 21 is clearly on Undefended List procedure therefore, he argues, Order 46(1) is not applicable to this appeal. He submits that the provisions of Order 20 Rule 3(1) and Order 35 Rule 6 of the High Court Rules are meant to apply to proceedings under “the General Cause List” and not under the Undefended List which is a specialized proceeding with the sole aim of quick dispensation of justice. The learned Senior Counsel re-iterated that Rules of Court (in this instance Order 21 Rules 1-5 of the FCT Rules) must be obeyed and not ignored or jettisoned to the detriment of the Appellant who has the right to enjoy speedy determination of this claim, devoid of unnecessary delay antics of an unwilling defendant – Bana v. Telepower Nig Ltd (2006) 7 SC p 1 at pp 13, 20; Afribank Nig PLC v. Akwara (2006) 1 SC (Pt. II) 41 at p.49.
In an introductory remark, it is pertinent to note that both learned counsel, in their brilliant articulation of their respective positions cited several authorities to support their disparage positions.
This appeal is predicated on the application of the Undefended List Procedure, particularly Rule 4 of the Federal Capital Territory High Court (Civil procedure) Rules Order 21 Rules 1-4 FCT Rules provide –
1(i) Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based and stating in the deponents belief there is no defence to it, the Judge in Chambers shall enter the suit for hearing in what shall be called the Undefended List.”
3(1) Where a party served with the writ delivers to a Registrar, within 5 days to the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
4. Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit and Judgment given accordingly.
As rightly submitted by the Appellant, the intendment of Undefended List Procedure is to obviate the usual delays encountered by litigants in the process of prosecution of their cases in court. The procedure is designed for specific types of claims that is, liquidated money demands and ascertainable debts.
Once a matter is placed on the Undefended List and the Defendant fails or neglects to file a Notice of Intention to defend the action with an affidavit disclosing a Defence on the merits within the prescribed period on the return date the trial court, on consideration of the processes filed by the plaintiff as an undefended case, it may give judgment without calling for evidence. The Rules are meant for a quick disposal of cases with dispatch in cases which by their nature for recovery of liquidated demands are uncontested or from the affidavit evidence the case is unassailable – Agwunebo v. Eze (1990) 3 NWLR (pt 137) 242 at 245, Olumba Ltd v. Alhaji Sule (1990) 7 NWLR (pt 160) 1 at 13. The main objective of the Undefended List Procedure no doubt is to make it possible for a plaintiff whose claim is uncontestable in a case for unliquidated sum obtain judgment expeditiously so that a defendant who does not have a real defence to the action will not frustrate the plaintiff who is clearly entitled to his money from delayed payment – N.M.C.B. (Nig) Ltd v Obi (2010) 14 NWLR (pt 1213) 169; Atugba & Co. v Gura (Nig) Ltd (2005) 8 NWLR (pt 927) 429; Macauley v. NAL Merchant Bank (1990) 4 NWLR (pt. 144) 83 at 324-325; Okoli v. Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt 1053) 37 at p. 69 paras B-C.
It is therefore clearly the law and not disputed that by the provisions of Order 21 Rules 1-5 of the Federal Capital Territory (Civil Procedure) Rules 2004 a plaintiff such as the Appellant, in a claim to recover liquidated demand can file a suit along with an affidavit stating that in this behalf the Defendant has no defence to the action. Where the defendant in such a situation fails or neglects to file a Notice of Intention to defend the suit along with an affidavit stating in defence to the claim upon being served with the writ five days before the return date, the trial court can hear the suit as undefended.
The bone of contention in this appeal however is where a defendant fails to file the Notice of Intention to defend the action, on the return date, as contended by the Appellant, the court must automatically give judgment to the plaintiff (Appellant) as per his claim without much ado. This is to say whether the trial Judge can exercise any discretion in the matter. In other words, does the trial judge have the power to consider any extenuating circumstances why judgment should not be immediately given to the plaintiff without any consideration whatsoever of the reason for his failure to file the necessary processes to contest the case?
It is not in doubt that Rules of Court are made to be obeyed and not for fancy. They are made to regulate matters in court and help parties to present their case within a procedure for the purpose of a fair and quick trial. This is more so with rules specially designed to ensure speedy trial and quick dispensation of justice, like the Undefended List Procedure. One cannot therefore shut one’s eyes to failure or laxity to comply with those rules.
Hence there are plethora of authorities to the effect that rules of procedure should be obeyed. Musa v. Hamza (1982) 7 SC 118, Abubakar v. Yar’adua (2008) 4 NWLR (pt 1078) 465 at 511; A.S.T.C. v. Quorum Corsortum Ltd (2009) 9 NWLR (Pt 1145) 1 at p. 29; See also Onwuka v. Ononaja (2009) 11 NWLR (Pt. 1151) 174 at 203 where Chukwuma Eneh, JSC stated succinctly –
“It must be emphasized that rules of court in this regard as in other cases are meant to be obeyed.”
However despite this general view for obedience of rules of court, the courts have also held that those rules should be helpful handmaid and not tyrannical and uncompromising. It is the paramount duty of courts to do justice and not cling to technicalities inherent in rules of court. Hence if strict adherence will cause injustice to a party in the circumstances of a case, attendance of ultimate justice will give way to slavish compliance with the rules of court. In Nishizawa Ltd v. Jethwani (1984) 12 SC at 877 Oputa JSC slated thus –
“The general view, with which I am in complete agreement, is that it is undesirable to give effect to rules which enable one party to score a technical victory at the expense of a hearing on the merits.”
See Anatogu v. Anatogu (1997) 9 NWLR (pt 519) 49 at 67-68.
In this appeal, on the return date of 1st December, 2011 when this suit was called up, the Respondent had not filed a Notice of Intention to defend this action in compliance with Rule 3(1) of Order 21 of the FCT Civil Procedure Rules. It is however not contested that on that day, the counsel for the Respondent applied to the trial court for a short adjournment of the suit, in the interest of justice and fair hearing to enable the Respondent file all necessary papers to defend the action as he had just been briefed and served with the processes by his client. (See para 4.18 of the Appellant’s Brief of Argument and p. 35 of the Record of Appeal).
The relevant background facts leading to this appeal were posited by the Respondent in paragraphs 2.0 to 2.11 of the Brief of Argument. The Appellant had earlier in October 2009 filed a suit in the Federal Capital Territory Court against the Respondent for payment of alleged professional fees for various suits to the tune of one hundred and fifty million naira. The defendant duly filed necessary papers in defence of the suit. However, in an out of court resolution, the Appellant agreed to be paid the sum of N50 million naira whereupon on 6/10/2010, the suit was withdrawn and struck out. It is the contention of the Respondent that alternative dispute resolution process had reached an advance stage when the Respondent was served with another writ of summon on 22/11/11. The Respondent, having been taken by the action of the Appellant could only brief its counsel on 1/12/2011 which the Respondent’s counsel discovered was the return date for hearing endorsed on the writ and therefore proceeded to court to seek for an adjournment as he then was unable to file any process before the court, upon which the court adjourned the matter to 13th December 2011. Learned counsel also brought to our attention the fact that on 5/12/2011, before the adjourned date for hearing, the Respondent had filed the following documents:
(i) Memorandum of Conditional Appearance
(ii) Notice of Intention to defend the suit.
(iii) Affidavit disclosing a defence to the Plaintiffs (Appellant) claim
(iv) A motion on Notice wherein it sought
(a) an order extending the time within which the Respondent can file and serve the three processes mentioned above
(b) an order deeming the said processes as being properly filed and served.
It is clear that on the return date, in view of the circumstances evinced above, the Respondent’s counsel sought for an adjournment to enable him file necessary processes to defend this action. This in effect, in my view, is tantamount to an oral application for extension of time within which to file the Notice of Intention to defend the suit. The contention of the Appellant that the Respondent having failed to deliver its Notice of Intention to defend the actions leaves the court with no option but to deliver judgment for the appellant without much ado, in my view, will be stretching the Rules in the Undefended List Procedure beyond the intendment of the drafters of the Rules of procedure. The primary duty of a court is to do justice to all parties. Thus rules of procedure are made for the convenience and orderly hearing of cases in order to help the course of justice. Rules of court in essence are put in place to facilitate the attainment of this overriding objective. Belgore, JSC, commenting on the essence of Rules of Court in U.T.C. (Nig) Ltd v. Pamotei (1989) 2 NWLR (Pt 103) 244 at 296 stated thus –
“They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the court and not masters of the court. For courts to read rules in the absolute without recourse to the justice of the case, to my mind, will be making the courts slavish to the Rules. This is certainly not the raison d’etre of the Rules of Court.”
It is pertinent to note that in the same said Federal Capital Territory High Court (Civil procedure) Rules, which provides for Undefended List procedure, as rightly pointed out by the Respondent, Order 20 Rule 3(1) gives the trial court the discretionary power to:
“By order or abridge the period within which a person is required or authorized by these provisions, to do any act or take proceedings.”
Order 35 Rule 6 of the same Rules of court also provides that –
“A Judge may in the interest of justice, postpone or adjourn a trial for such time and on terms as he thinks fit.”
These quoted rules of court without doubt confer on the judge discretionary power to apply any part of the Rules of Court and apply same as appropriate in the circumstances of each case.
In the circumstances of this case as enunciated above, the learned trial judge is justified to have adjourned the case so as to afford the Respondent the opportunity to file the appropriate processes to hear the case on its merit. See U.T.C (Nig) Ltd v. Pamotei (supra) at 299 where the Supreme Court held thus –
“Even where a Defendant neglects to deliver a notice and affidavits as required by the rules, within time before judgment, he may on an affidavit disclosing a defence on the merit and satisfactorily explaining his neglect be let to defend on terms under undefended list… where a defendant in an undefended list takes an improper or insufficient step, such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him the chance to take the proper step to enable the court consider his notice of intention to defend.”
The submission of the learned Senior Counsel in his Reply Brief of Argument that the provisions of Order 20 rule 3(1) and Order 30 Rule 6 of the Federal Capital Territory High Court Rules were not designed to affect the specialized proceedings of Undefended List Procedure, but the proceedings under ‘The General Cause List’ in my view, with due respect, is of no moment. There is no legal support for such a contention. Even though it is the law that rules of procedure are to be interpreted as imperative, yet it is equally important that such rules like other statutes, ought to be construed as a whole and not in isolation.
They must be construed conjunctively and not disjunctively so as to achieve the true intention of the legislature. See Consortium M.C. v N.E.P.A (1992) 6 NWLR (Pt 246) 132 at 143; Bronik Motors Ltd v. WEMA Bank Ltd (1983) 1 NSCC 226; Oke v. Atoloye (1985) 3 NWLR (Pt 9) 578 at 592
The cited case of Ndaba Nig. Ltd v. Orabkwe (2003) FWLR (Pt 171) 1699 is apt. the court at page 1708-1709 held thus:
“The fact that a proceeding was commenced under the undefended list does not foreclose the right of a party/litigant to be heard on a motion duly filed before the court. No matter how “special” a proceeding is, whether it is under the undefended list or not, does not forclose the right of a party to be heard when such a party is out of time before taking any step towards defending a suit. To say that a proceeding commenced under the undefended list as provided for under Order 23 of the Kwara State High Court (Civil Procedure) 1989 admits of no other thing than notice of intention to defend the suit will defect the purpose and intendment of the provision of Order 22 Rules 3(1) – (3) of the same Kwara State High Court (Civil Procedure) Rules, 1989 which allows for enlargement of time in this regard.”
See also Adebayo v. Okonkwo (2002) 8 NWLR (pt 768) 1 at pp 23-24 where the court held –
“A Defendant who fails to file a notice of intention to defend together with an affidavit disclosing a defence not less than five (5) days before the date fixed for hearing of an action brought under the undefended list procedure as provided by Order 22 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules 1989 can still be heard on the matter before judgment particularly as Order 21 Rule 3(1) and Order 21 Rule 3(2) of the Rules confers a power on the court to extend time and a right, respectively on a Defendant to present an application for appropriate orders of the Court to remedy a failure to file defence within time…”
The law has long been settled that courts of law may excuse compliance with the very mandatory sections of Rules of courts if by so doing, substantial justice will be attained. Courts of law should not be slaves to rules of courts. Rather the courts must be masters of the Rules and strive to attain justice at each point in time. In the case of F.S.B. International Bank Ltd v. Imano Nig Ltd (2000) 11 NWLR (Pt 679) 620, the Supreme Court at page 634
“The rules of practice and procedure are aimed at prescribing the procedure for determination and enforcement of rights and obligations which aid legal principles. Their compliance should not be aimed at defeating the ends of justice and foreclosing a fair trial of disputes. Thus the court should not be enslaved to the rules or interpret them to cause injustice by shutting out the claimant from persecuting and or the defendant from defending the suit.”
The trend of judicial authorities is therefore to the effect that Rules of court must be interpreted to meet the cause of justice and not to defeat the essence of justice. Thus, in the application of Rules of court, it is paramount to have in mind the avowed concept and requirement of fair hearing as enshrined in Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended) which provision stipulates that fair hearing must be given to all the contending parties before a court in order to attain justice. The courts have often been admonished that in hearing of any matter, they are enjoined not to apply the Rules of Court in such a manner so as to defeat the course and essence of justice and elevate the Rules of Court over and above the provisions of the Constitution of Federal Republic of Nigeria, 1999 – Osifo v. Okogbo Community Bank (2006) 15 NWLR (pt 1002) 267 at 679, Famfam Oil Ltd v. A.G. Federation (2003) 18 NWLR (Pt 852) 461 at 168. In my view, to contend as the learned Senior Counsel has done, that where a defendant duly served, neglects to deliver the Notice of Intention to defend a suit, on the return date for hearing, the learned trial Judge has no power under the circumstance to adjourn the suit to another date in my view, will be given undue prominence to the Rule of Undefended List Procedure. In essence it will be unnecessarily elevating it over and above the Constitutional provision for fair hearing specifically, it is my view that Rules of Court dealing with cases to be put on the Undefended List though designed to ensure quick dispensation of justice, are not to be implemented at the expense of fair hearing. Justice should not be sacrificed at the altar of speedy hearing of cases. See Agwuememe v. Eze (1990) 3 NWLR (Pt 137) 242 at 244 (ratio 5) There are in fact a plethora of authorities on this point. In a similar situation as the case at hand, when a court refused an application for an adjournment, this court, per Ngwuta JCA (as he then was) held in Ughelli South L.G.C. v. Edojahva (supra) that –
“In a matter under undefended list, the return date is the hearing date. But the interest of justice may well dictate that the matter on the undefended list not be heard on the return date.”
The court further held at pages 1317 – 1318 thus –
“The refusal of the appellant’s application in the circumstance of the case constitute a breach of the audi alteram partern principle. It is a denial of the appellant’s right of fair hearing… our adversarial system of jurisprudence resting on the audi alteram parterm rule has no room for technical knockout. Each party must be given opportunity to be heard.”
Reference was made by the Respondent to other case relevant to this appeal.
In the case of Aubergine Co Ltd v. Habib Bank Nig Ltd (2012) 4 NWLR (Pt 757) 339 the court held at p. 352 thus –
“The rules of court relating to undefended list procedure have provided adequate protection for the Defendant such that even where a defendant takes an improper step, such as merely filing a notice of intention to defend, he may take an adjournment to give him the chance to file an affidavit in support of his notice of intention to defend. In the same view, a defendant who neglects to deliver a notice of intention to defend and an affidavit as required by the rules within the prescribed time may before judgment is delivered on filing an affidavit which discloses a defence on the merit and satisfactorily explaining the delay and the neglect be allowed to defend the action.”
In this appeal, in my view, the explanation given by the counsel to the Respondent for the delay in filing the necessary processes is satisfactory. He explained that he had just been briefed by his client and he immediately rushed to court to seek for an adjournment. Even though the Respondent did not act within the 5 days stipulated in the Rules, in the circumstances of this case, it cannot really be convincingly said that the Respondent went into slumber and slept over its rights and only woke up on the return date to seek for adjournment, having regard to the fact that it was served only on 22/11/11 while the return date was 1/12/12. This is more so in view of the fact that the parties were negotiating to settle the matter out of court, it is also important to note that the counsel was of a misconception that he had five days, going by the rules from the date he was served by his client to reply to the process and that the case was for mention since he was erroneously of the view that the case was not ripe for hearing (see page 35 of the Records). It is not in doubt that under the Undefended List procedure, the return date is a date for hearing. See Ben Thomas v. Sebi Furniture (1989) 5 NWLR (pt. 123) 523 at 529. The misconception of the counsel for the Respondent in this case is a mistake which should not be visited on the Respondent. What is paramount is the real intention of the Respondent to defend this suit which has been exhibited by the Respondent through its counsel who informed the court of their intention “to defend this suit to its logical conclusion.”
The lower court rightly exercised its discretion to grant the adjournment to afford the Respondent the opportunity to defend this suit on the basis of fair hearing. Where a defendant has indicated an intention to defend a suit under an Undefended List Procedure, even though he takes an improper step or insufficient step vis-a-vis the Rules of Court, in the interest of justice, such a defendant should not be ousted or stopped from being heard. The issue of fair hearing is very fundamental to our judicial system.
The importance of same is exhibited by the fact that it is enshrined in our constitution. The concept of fair hearing is concerned with matter of substance and not mere rhetoric or technicalities. It is a concept that must be actualized by courts between the contending parties before it.
In the locus classicus case of U.T.C. v. Pamotei (supra) Oputa JSC at p 287 stated succinctly thus –
“It is a well established principle that the duty of the Court is to decide the rights of parties and not to punish them for errors if any, in the conduct of their case by deciding otherwise than in accordance with their right. Hence where a Defendant has a good defence and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence is brought. The rules are designed to assist the court and parties in putting forward their case before the court. They are not intended to deny the parties the opportunity of presenting their case thereby resulting in injustice.”
All these decided cases show clearly that the trial Judge still has the discretionary power to exercise in the determination of cases under the Undefended List Procedure irrespective of the strictness of the Rules. In the case of Nigeria Seed Cotton Co. Ltd v. Celtic Commerce & Ino Ltd (2002) FWLR (Pt 126) 944 where the trial court in an Undefended List Procedure refused an oral application for adjournment by the defendant and instead proceeded to give judgment in favour of the Plaintiff, the Court of Appeal stated thus –
“The trial Court in the instance case, should in my opinion, have employed the provisions of Order 2 Rule 1 of the rules to allow an adjournment of the claim under the undefended suit procedure and in doing so extend the time simultaneously within which the defendant may file a notice of intention. In my view, therefore, the exercise of discretion of the court to refuse oral application for adjournment was wrongly exercised, and the court was thereby also in error when he failed to extend the time within which to file a notice of intention to file an affidavit showing a defence.
This so despite the situation of the provision under Order 22, Civil Procedure Rules which makes no apparent provision to provisions of Order 2 Rule 1, of the same Civil Procedure Rules which enjoins a condonation of the failure to comply with the rules, applies to any proceeding in the rules, and this includes the proceedings under Order 22 of the High Court Procedure Rules applicable in Kaduna State. The learned trial Judge was sticking to form than to aspire to do substantial justice when he refused the application for adjournment which would have simultaneously worked in favour of extension of time for the notice of intention to file a defence with the affidavit thereto to be properly filed.”
I do not agree with the learned Senior Counsel that the inclusion of the word “shall” in the wordings of Order 21 Rule 4 of the Federal Capital Territory High Court (Civil Procedure) Rules 2004, robs the court of the exercise of its discretionary power other than to proceed with the hearing of the suit once the defendant fails to file the necessary processes before the return date. On the other hand, I am on the same plane with the Respondent that it is not in all instances where the word “shall” is used in an enactment that it connotes mandatoriness. Indeed, this is especially so in subsidiary legislation like Rules of Court made with the objective of the attainment of justice. In Okonkwo v. U.B.A (supra) the Supreme Court at page 628 held thus –
“The word “shall” does not always mean must – a matter of compulsion. It could be interpreted where the con so admits as may”
Also in the case of Olaniyan v. Oyewole (supra) at p. 140 the court construed the word “shall” in Order 2 Rule 2 of the High Court of Kwara State (Civil Procedure) Rules 2005 thus –
“The word shall in Order 2 Rule 2 of the Kwara State High Court (Civil Procedure) Rules 2005 is used in a directory sense and the claimant is only obliged to fulfill the directive substantial and not necessarily exactly.”
In fact, in a very recent case of Dangote Gen. Tex Prod. Ltd v. Hason Ass (Nig) Ltd (2013) 16 NWLR (Pt 1379) 60 at p. 87, the Supreme Court has put to rest the interpretation of the word “shall” in Undefended List Procedure. In a similar scenario on whether the use of “shall” in Order 22 Rule 3(1) of the High Court of Sokoto State (Civil Procedure) Rules 1986 (which is in pari material with the corresponding Federal Capital Territory Civil Procedure Rules) is mandatory, Ogunbiyi, JSC held thus –
“The use of the word “shall” in Order 22 Rule 3(1) of the High Court of Sokoto State (Civil Procedure) Rules 1986, (applicable to Zamfara State), is neither in itself conclusive, nor sacrosanct, it should not be interpreted as mandatory but directory or permissive.”
Incidentally and very interesting, conversely, the facts of the quoted Supreme Court case are in some sort of way, similar to this appeal. The Respondents filed an action against the Appellants under the Undefended List before Zamfara State High Court for various sums of money and cost of the action. When the matter came up for hearing, the Appellants informed the court of their pending application before it, praying the trial court to hear and consider their notice of intention to defend the action supported by an affidavit disclosing their defence in the merit. They also prayed orally and urged the court to treat the late filing of their process as an irregularity in accordance with Order 2(1) of the Rules of Court; and thereupon extend the time within which the Appellants were to file their notice of intention to defend. They also filed a motion for extension of time to enter appearance, supported by an affidavit explaining their delay in filing. However, despite the oral pleas and applications of their counsel to be afforded the opportunity to be heard, the trial court in its judgment held that the Appellants failed to file a notice of intention to defend and entered judgment for the Respondents in terms of their claims. On appeal, the Court of Appeal held that the trial court rightly exercised its discretion in entering judgment for the Respondents. The Supreme Court however on the other hand held that there was absence of fair hearing by the trial court.
I am conscious of the point that the facts of this cited case are not on all fours with this appeal. I say this merely because unlike the quoted case, there was no any notice to defend the action before the court. The circumstances for the failure to file any process before the return date have already been recounted in this judgment and I have held that in the interest of justice, their explanation is satisfactory. The Supreme Court made far reaching pronouncements on principles of law on Undefended List Procedure which border on the fulcrum of this appeal. At page 86, paras F-G, the court held that –
“Where a defendant neglects to deliver a notice and affidavit as required by the rules of court within the specific time in a suit filed under the undefended list, but files same before judgment, he may, on affidavit disclosing a defence be let in to defend on terms.”
Further at page 89 paras B-C, the court restated that –
“Where a defendant intends to defend but has taken an improper or insufficient step, he may be given an adjournment to give him an opportunity to rectify the defect and enable the trial court consider his defence.”
At page 86 para B-C
“The determining bottom line and guiding principle in deciding whether or not to grant the leave to defend is the justice of the case which should overrule and not technicalities which application operates inimically and negates the principle of justice. In other words, while the need for procedure may be relevant in itself for operational guiding purposes, it must not however be seen to replace justice which is the very foundational basis and reason upon which our entire judicial system is founded and anchored.”
The court went further at p. 86 para G-H thus –
“The absence of fair hearing can be viewed from many dimensions. In the situation at hand, it was in my view occasioned by the wrongful exercise of judicious and judicial discretion by the learned trial court judge and which same was erroneously adopted and affirmed by the lower court justices.”
I am fully bound by these decisions of the Supreme Court.
I must say at this point that I am not oblivious of the fact that fair hearing is a concept of justice which should not be viewed from the perspective or prism of only one party. I am therefore conscious of the fact that the Appellant also has the right to enjoy speedy determination of this case. However, when the contending interest of both parties are weighed, it is clear without any equivocation whatsoever, that it will be most unjust in the circumstances of this case to allow the interest of speed to out balance the concept of fair hearing.
The learned trial judge rightly exercised his discretion judicially and judiciously by allowing the adjournment. By this act, no miscarriage of justice was occasioned against the Appellant. The case of Alsthom S.A. v. Saraki (2000) NWLR (Pt. 687) 145 at 427 is apt; where Supreme Court held at page 427 thus
“Discretion is said to be judicial and judicious if it is exercised with a leaning towards accommodating the interests of parties without allowing the procedural irregularities brought by mistake of counsel to stifle or preclude the determination of a case on it’s merits.”
The principle of law is to the effect that an appellate court will not interfere with the exercise of discretion of a lower court once such exercise is not injudicious or reckless – National Bank of Nigeria Ltd v Guthrie (Nig) Ltd. (1987) 2 NWLR (pt 56) 255 at 266; Imonikhe & Anor v. A.G. Bendel State & Ors (1992) 6 NWLR (pt 248) 396 at 408 paras C-E; Efetiroroje v. Okpafele II (1991) 5 NWLR (pt 193) 517; Sungaba v. UBN (1999) 11 NWLR (pt 627) 459. This court is in fact happy that the learned trial judge did not slavishly follow the Rule 4 of Order 24 of the Federal Capital Territory High Court Civil Procedure Rules by giving judgment to the Appellant as prayed but used his discretion to grant an adjournment to afford the Respondent an opportunity to offer his defence for consideration if he had done otherwise, justice could have been thrown overboard on the pre of compliance with Rules of Court.
Issue one is hereby determined in favour of the Respondent.
Issue 2 is whether the learned trial judge was not bound to follow the decision of the Supreme Court in Planwell Watershed Ltd. v. Ogaki (2003) 18 NWLR (pt 852) 478.
The Appellant’s contention is that by the doctrine of stare decisis the lower court was bound to automatically follow the decision of Planwell Watershed’s case.
It is now well settled that under the doctrine of stare decisis, lower courts are bound by the theory of precedent; that is by the decision of a higher court where the same points come up for litigation. It is the law that a decision of a competent jurisdiction, no matter if it seems palpably wrong, unattractive or unsupportable remains binding until set aside by a superior court of competent jurisdiction. The Supreme Court, being the highest court of the land, all subordinate courts are bound by its decisions. – Clement & Anor v. Iwuayanwu (supra), Osho v. Foreign Finance Corp (supra); Atolagbe & Anor v. Awuni & Ors (1997) 9 NWLR (Pt 522) 536 at 565; Abacha & Ors v. Fawehinmi (2000) 6 NWLR (pt 660) 228 at 317 paras D-E.
As rightly posited by the learned Senior Counsel, the doctrine of stare decisis is well while it is open for a lower court to depart from its own decision, the lower courts cannot refuse to be bound by a decision of the higher court even if it is reached per incuriam.
Indeed, the Supreme Court, being the highest court of Nigeria, its decisions are binding on every court in this country – Obiuweubi v. CBN (2011) 7 NWLR (Pt 1247) 465 at 497.
However, it is also the law that it is the ratio decidendi of a case of a higher court that binds a lower court. It is the principle of the decision of the high court that is binding. In other words, it will be dangerous to consider any pronouncement of any superior court in vacuo and without reference to the peculiar facts and circumstances of the case upon which the pronouncements were made. This is because the facts in each case frame the issues that are decided by the court. A case in point rightly cited by the Respondent is Na-Bature v. Mahuta (1992) 9 NWLR (Pt. 263) 85 where Tobi JCA (as he then was) stated at p. 103 thus –
“A ratio of the case can only be determined in relation to the facts of the case and not in vacuo. It is the facts of the case that enrich a ratio. Therefore it is futile exercise to take a ratio of a case outside the facts and parade it before a court of law in the name of the rule of stare decisis.”
The facts of Planwell Watershed Ltd v. Ogala (supra) heavily relied upon by the Appellant are distinguishable from the facts and circumstances of this appeal. In the cited case the Appellant was duly served with the processes of this suit under Undefended List but failed/neglected to respond nor put in any appearance either personally or by counsel on the return date; for hearing. The trial court heard the case, adjourned the matter for judgment. The Appellant still failed to take any step but waited till the judgment was delivered before he took some steps. He filed an application seeking for extension of time to set aside the judgment, an order setting the judgment aside or in the alternative granting extension of time within which to file a notice of intention to defend the suit. The trial court refused the application and appeals to the Court of Appeal and the Supreme Court were dismissed. These facts are definitely different from the appeal at hand where the Respondent was represented by his counsel who had just been briefed on present and sought for adjournment in the interest of justice to file necessary papers. The trial court rightly exercised his discretion on the principles of fair hearing to grant the adjournment.
The principle of law has also been rightly stated by the Respondent’s counsel. When a court exercises its discretion, previous decisions or precedents do not count since discretion is exercised on the peculiar facts before that court. In Dokubo-Asari v FRN (2007) 12 NWLR (pt 1048) 320 at 350 Muhammad JSC put it succinctly thus –
“Where the question is one of exercise of discretion, authorities are not of much value. This is because no two cases are exactly similar; even if they are, courts cannot be bound by the previous decision to exercise its discretion because that would be putting an end to discretion. Thus no discretion in one case can be a precedent to another.”
In defining the exercise of judicial discretion Adekeye JSC in UBN PLC v. Astra Builders (W.A) Ltd (2010) 5 NWLR (pt 1186) 1 at p 28
“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 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 or be bound by a previous decision of another court in which a discretion is exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule to the exercise of a judicial discretion by a court for if that happens a discretion becomes fettered.”
This decision is illuminating and shines in support of the decision of the trial court in this appeal not to be bound by the decision of the Planwell Watershed Ltd case which is also an exercise of the discretionary power of the court in that case. In the circumstances of the exposition above, Issue 2 is also resolved in favour of the Respondent.
Consequently, having resolved both issues against the Appellant, this appeal is hereby dismissed. The suit is sent back to the lower court for determination. The ruling of the lower court is hereby affirmed. The case is hereby sent back to the lower court for determination. Parties are to bear their own costs.
AMIRU SANUSI, OFR, J.C.A.: I had a preview of the Judgment just delivered by my Lord Akomolafe-Wilson, JCA. In the well-researched judgment, my noble lord had painstakingly and thoroughly as characteristic of him dealt with all the salient points canvassed by learned counsel to the parties.
To my mind, considering the circumstance of this case, the learned trial judge cannot be faulted for obliging adjournment to the respondent to actualize the steps he wanted to take in filing his notice of intention to defend the suit brought against him as defendant by the appellant under the undefended List procedure. I do not agree with learned appellant’s senior counsel that the lower court should not have granted such adjournment simply because he (respondent) failed to file his intention to defend the suit timeously. Although the rules of procedure of the lower court might have provided for granting claims out-rightly on failure by respondent to take necessary steps to defend, I feel that interpreting the rules in that regard would run riot and violent to the time-honoured principle of fair hearing. It will also amount to being slavish to the rules of court and of course, amount to sheepishly relying on mere technicalities at the expense of doing substantial justice to the parties and which this will ultimately result in injustice which court must always abhor and discourage.
Thus, for this and the more detailed reasoning and conclusion reached in the lead judgment, which I am in entire agreement with, I also hereby adjudge the appeal unmeritorious and it is accordingly dismissed by me too.
I decline to make any order on costs.
JOSEPH TINE TUR, J.C.A: I read in advance the lead judgment delivered by Tinuade Akomolafe-Wilson, JCA, and I am also of the humble opinion that the appeal lack merits and should be dismissed. The ruling of the lower Court is hereby affirmed.
Appearances
Mrs. J.N. Onyekwuluje Esq. with Miss N. Ofodile-Okafor Esq.For Appellant
AND
Chief Olusola Oke Esq, with him J.O. Mafo Esq, O. Ekuiyibo Esq, and G. Ikuesan Esq.For Respondent
