ALH. BALA USMAN v. TAMADENA & COMPANY LTD & ORS
(2015)LCN/7873(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of May, 2015
CA/K/95/2009
RATIO
PRACTICE AND PROCEDURE: RULES OF COURT; WHETHER RULES OF COURT ARE MEANT TO BE OBEYED AND FOLLOWED
It is now settled principle of practice and procedure that Rules of Court are meant to be obeyed and followed because they regulate matters in Court and make for the smooth administration of justice. The Rules must be observed and it is the duty of the Court to give effect to the rules and practice of a Court and parties cannot by consent or acquiescence ignore the rules. See KACHIA V. YAZID (2001) 17 NWLR (PT. 742) p. 88 AND F.C.E., OYO V. AKINYEMI (2008) 15 NWLR (PT. 1109) P. 21 AT 48. per. UWANI MUSA ABBA AJI, J.C.A.
PRACTICE AND PROCEDURE: RULES OF COURT; THE EFFECT OF THE NON-COMPLIANCE WITH THE RULES OF COURTS
Depending on the circumstance of each particular case, where the noncompliance has occasioned miscarriage of justice or where the right of the adverse party will be affected, the Court shall not treat the non-compliance as a mere irregularity and as such mandate the rules to be followed or nullify the proceedings as the case may be. But in a situation where it has not occasioned miscarriage of justice it shall be treated as a mere irregularity and should not vitiate the proceedings. This is because all rules of Court are made in aid of justice and that being so, the interest of justice will have to be given priority over any rule, compliance of which will lead to outright injustice. The Rules are not sine quo non in the determination of a case and therefore not immutable. See ONI V. FAYEMI (2008) 8 NWLR (PT. 1089) 408. In ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PT. 1078) P. 465 AT 510 PARAS G – H, the Supreme Court held inter alia that: It is not every non-compliance with rules of court that vitiate the proceedings or do harm to the party in default. As a matter of our adjectival law, and by the state of the non-compliance rules, the Courts will regard certain acts or conduct of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as a matter of our adjectival law, non-compliance rules in their aggregate content point more to this trend than the reverse position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving non-compliance with rules of Court, particularly where such noncompliance, if waived, will be in the interest of justice.” per. UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALH. BALA USMAN – Appellant(s)
AND
1. TAMADENA & COMPANY LTD
2. GALADIMA DZARMA LAUSHI
3. A.G. OF KADUNA STATE
4. BUREAU FOR LANDS, SURVEY AND COUNTRY PLANNING, KADUNA STATE – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice Esther Inuwa of Kaduna State High Court in Suit No. KD/KAD/418/2008, delivered on 4/2/2009, wherein the Appellants motion seeking to set aside the 1st and 2nd Respondents writ of summons for want of issuance on the basis that it was not signed by the Registrar of the Court as required by the rules of Court, was dismissed by the learned trial judge.
The 1st and 2nd Respondents as plaintiffs’ at the lower Court claims against the Appellant/Defendant as per Paragraph 19 of the statement of claim dated 18th September 2008 as follows:
a. A declaration that the 1st plaintiff is the beneficial owner of the plot of Land Lying and situate at No. 6 Road ‘N’ on TPO 460A, extension of light industrial layout, Tudun Wada, Kaduna covered by Certificate of Occupancy no. KD. 901 dated 27th June 1998 and the 2nd Defendant has a subsisting equitable interest over the said plot of Land by virtue of the Sale Agreement dated 22nd December 1997.
b. An order of perpetual injunction restraining the Defendants, their agents,
1
servants and privies or persons claiming through them or on their behalf from building continuing to build, fence, construct or doing anything whatsoever on plot No. 6 Road ‘N’ on TPO 460 A, situate at the extention of light industrial layout Tudun Wada, Kaduna, Kaduna State.
c. An order directing the 1st defendant to demolish the fence project and other developments that he had embarked upon and/or he is embarking upon and to vacate the said piece of land belonging to the plaintiffs.
d. General damages against the 1st defendant for the trespass and illegal encroaching on the property belonging to the plaintiff in the sum of One Million Naira (N1,000,000.00) only.
e. The cost of prosecuting this suit.
On its part the Appellant said that on 23/6/2000 the Governor of Kaduna State granted a Certificate of Occupancy over same plot of land with No. KD.2576 for the plot with TOP 460 A to Umura Ventures Nigeria Ltd which was later assigned to him through a Deed of Assignment dated 23/3/2008. That he constructed the said fence before the commencement of the suit.
Subsequently, the 1st and 2nd Respondents filed this suit against the Appellant,
2
and 3rd & 4th Respondents applied and were granted an interlocutory injunction restraining the Appellant pending the determination of the suit. After pre-trial conferences, the Appellant by a motion on notice dated 13/1/2009 and filed 19/1/2009 brought an application praying for the following reliefs:
1. An order of the Court to set aside the undated writ of summons in this suit No. KHD/KAD/418/2008 as same was not issued.
2. And for further order(s) the Court may deem fit to make
The grounds of the Application are that:
1. The writ of Summons does not comply with Order 6 rule 2 of the Kaduna State High Court rules as it was not issued by the Registrar of the Court or any other person duly authorized to issue it.
2. The memorandum to be subscribed on the writ relating to its life span does not comply with Order 3 Rule 3 (form 1).
The trial Court in a well considered ruling dismissed the said motion.
The Court in dismissing the application held inter alia as follows:
“Furthermore, the 1st Defendant has not shown in what way, the plaintiff is responsible for the action or as the case may be, the omission(s) of the
3
Court Registry”.
“From the facts before me and the peculiarity of this matter, I am not able to visit the “sin” of the Registry on the Plaintiff nor his counsel so as to invalidate this suit. Consequently, the Application of the 1st Defendant fails and same is hereby dismissed”.
Being dissatisfied with the decision of the learned trial judge, the Appellant appealed to this Court vide a notice of Appeal dated 10/2/2009 and fife 17/2/2009 upon 2 grounds of Appeal as herein under reproduced
GROUNDS OF APPEAL
GROUND ONE
The Lower Court erred in law when it dismissed the Appellant motion of 13/1/2009 and held that the Appellant waived his right to complain about the writ of summons because of all the steps he has taken.
PARTICULARS
i. The Writ of Summons was neither dated nor signed or issued by the Registrar of the lower Court or any authorized person.
ii. The defect on the Writ is fundamental and goes to jurisdiction.
GROUND TWO
The Court erred in law when it refused to invalidate the Writ of Summons on account that the plaintiff should not be penalized for failure of a Court official to endorse
4
writ.
PARTICULARS
i. The Writ of Summons was in breach of the Kaduna State high Court (Civil Procedure Rules) 2007
ii. The Appellant complain was not on endorsement but issuance.
Briefs of argument were filed and exchanged by counsel to the parties in accordance with the rules of this Court.
The Appellant’s brief of argument settled by S.O. Omoloba Esq. (Mrs.) was dated and filed on 20/5/2009, wherein 2 issues were formulated for determination of the Appeal to wit:
1. Whether non-compliance with the Rules of Court requiring the Registrar of the Lower Court to sign (seal) a writ of summons render the writ a nullity or mere irregularity.
2. Whether the Appellant has waived his right to complaint because of the steps he has taken in respect of a writ that was never issued.
The 1st and 2nd Respondents consequentially filed their brief of argument dated and filed same day on 24/6/2009, settled by Femi Morahundiya Esg., therein the 1st and 2nd Respondents adopted the 2 issues as formulated by Appellant.
The 3rd and 4th Respondents filed no any brief of argument.
?At the hearing of the appeal on 2/3/2015, counsel
5
to the Appellant adopted his brief of argument and prayed this Court to allow the appeal while the counsel to the 1st and 2nd Respondents adopted his brief and urged the Court to dismiss the Appeal.
I shall now proceeded to consider the appeal on a single issue rephrased thus:-
“Whether non-compliance with the Rules of the Court requiring the Registrar of the Lower Court to sign (seal) a writ of summons render the writ a nullity or a mere irregularity”.
It is the contention of the Appellant’s counsel that Order 3 Rule 3 and Order 6 Rule 2 (1) of the Kaduna State High Court (Civil Procedure) Rules, 2007 provides for procedure or mode for commencement of Civil action in the State but the 1st and 2nd Respondents writ of Summons failed short of these requirement provided by the Rules. That the Writ was simply prepared by the Counsel to the Plaintiff and dumped on the Court without more. That Writ was never issued or sealed or signed as required by the rules and that it does not bear any date.
Learned counsel maintained that the defect is fundamental and therefore renders the Writ invalid, because it is not a mere irregularity which ought
6
to be set aside. He relied on CHIDOBI V. UJIEZE (1994) 2 NWLR (PT. 328) P 554 AT 556 and IGWE UZOR & SONS NIG LTD V. ONWUZOR (2007) 4 NWLR (PT. 1024) P 303 AT 314 all decisions of this Court to the effect that issue of writ takes effect upon being signed by the Registrar or officer of the Court.
He submitted that by Order 5 Rule 1, of the Kaduna State High Court Civil/Procedure Rules, 2007, the consequences of the failure to comply with the rules in the beginning of an action is that such processes shall be nullified. He contended that where rules of Court provides for the procedure and or mode of doing a thing, it’s not for a party to choose the way and manner to do that thing, that provision he said, must be complied with. He cited DIN V. ATTORNEY GENERAL OF THE FEDERATION (1988) 2 NSCC 449 AT 498 LINE 7 – 10; BROAD BANK NIGERIA LTD V. OLAYIWOLA & SONS (2001) 6 NWLR (PT. 710) P. 742 AT 758 PARA G-H.
He submitted where the word “shall” is used in a statute, which is an act or rule of Court, it commands an obligation and not mere directive. Counsel relied on OGIDI V. STATE (2005) NWLR (PT. 918) 286 AT 327 PARAS C – G; ONICHE v. ODULUWA (2006)
7
6 NWLR (PT. 975) 65 AT 89 PARAS A – E AND D.E.R.N LTD V. TRANS INT’L BANK LTD (2008) 18 NWLR (PT. 1119) PAGE 389 AT 430 PARA B.
Learned counsel cited again the case of BROAD BANK NIG. LTD V. OLAYIWOLA (Supra) to submit that the competence of the suit hinged on the validity of the Writ of Summon.
It is also submitted that the failure of the Registrar to sign or issue the Writ is a fundamental defect and not a mere irregularity or dereliction of duty that can be waived or cured by the payment of filing fees or defendants appearance. It goes to the jurisdiction of the Court. He placed reliance on ODU’A INVESTMENT V. TALABI (1997) 7 SCNJ T. 617 LINE 30-40. Counsel urged us to resolve the issue in his favour and allow the appeal.
?
On their part, the 1st and 2nd Respondents’ counsel submitted that the Respondents substantially complied with the provisions of Order 3, Rule 3, High Court (Civil Procedure) Rules 2007, as the Writ of Summons filed in the Registry was in form 1. That Order 6 Rules 2(1) and (2) of the Kaduna State High Court Civil Procedure Rules, 2007 clearly stated the duty of the Registrar to sign and seal the Writ before issuance and
8
that of the Counsel in sub-rule 3 of the same Rules of Court is to sign each copy, which was done by the plaintiffs/Respondents counsel and that, that means they have perform their part and cannot be punished for the failure of the Registrar to do its part. He relied on BROAD BANK OF NIG LTD v. ALH. S. OLAYIWOLA & SON LTD & 1 OR (2005) 1 S.C.N.J. P. 51 AT 63 – 64. He thus submitted that the non-compliance by the Registrar of the lower Court is not sufficient enough to nullify the proceedings at the lower court but defect curable. He cited STEEL BELL (NIG,) LTD V. GOVERNMENT OF CROSS RIVER STATE (1996) 2 NWLR (PT. 438).
He argued that the inadvertent act of the court official in failing to endorse on the court process the stamp of the court and signing by the Court Registrar can be treated as irregularity and will not vitiate or invalidate the process filed in court by virtue of Order 5 Rule 1(2) of the Kaduna State High Court (Civil Procedure) Rules, 2007, which provide thus:
“Where at any stage in the course of or in connection with any proceedings there has been a failure to comply with the requirements as to time, place, manner, or form
9
the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The court may give any direction as it think fit to regularize such step”.
He cited the case of CENTRAL BANK OF NIGERIA V. MR. OLASUPO ADEDEJI & 11 ORS (2004) 13 NWLR (PT. 890) P.226 AT 243 – 244 PARAS H – C where the court relied on order 3 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 which is almost in pari materia with Order 5 Rule 1(2) of the Kaduna State High Court (Civil Procedure) Rules 2007 to treat non compliance with Order 7 Rule 8 of the same Rule as a mere irregularity.
He argued that the phrase “left undone” and the “the failure shall be treated as an irregularity” in this rule clearly shows that a matter should not be set aside based on the act left undone once it does not touch on the merit of the case. He relied on CBN V. MR, OLASUPO ADEDEJI (Supra). He argued that a party who has paid all the assessed filing fees and service of his document cannot be punished for dereliction of duty by the Court Registrar. The cases of S.B.M. SERVICES (NIG) LTD V. OKON (2004) ALL FWLR (PT. 230) P. 1115 AT 1132 PARAS E – G
10
and NDIC V. AKAHALL & SONS CO. LTD (2004) 6 NWLR (PT. 869) P.245A 278 PARAS D – F were relied upon.
It is also submitted that it is not every irregularity that automatically nullifies the entire proceeding, particularly where the irregularity did not in any way materially affect the merit of the case, or occasion a miscarriage of justice or where in any case, it is much too late in the day for a party to complain about such irregularity. He cited in support the case of KOSSEN (NG.) LTD V. SAVANNAH BANK OF NIG LTD (1995) 9 NWLR (PT. 420) 439 AT 451 – 452. It is his view that to set aside the writ as prayed by the Applicant/Appellant will amount to injustice to the Plaintiffs/Respondents for an omission which they are not responsible. He therefore prayed the Court to treat the omission of the Registrar as a mere irregularity that did not render the writ of summons a nullity as same is curable.
On whether the Appellant Learned counsel waived his right to complain because of the steps he has taken with respect to this writ, it is argued that the option open to a Defendant who intends to object to the regularity of proceedings by which a plaintiff
11
seeks to compel his appearance may be by leave of court to enter a conditional appearance or an under protest, and then apply to the court to set aside the plaintiff’s proceeding or he or she may without entering an appearance move to set aside the writ. He relied on ADEWUNMI V. A.G. ONDO STATE (1996) 8 NWLR (PT. 464) 73 AT 85 – 86.
It is also submitted that it has been established by plethora of judicial authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. He cited JOHNSON V. ADEREMI & ORS 13 WACA 297; ASHIRU NOIBI v. FIKOLATI & ANOR (1987) 1 NWLR (PT. 52) 619 AT 632. He contended further that the implication of entering an unconditional appearance is that the defendant wanted and intended to contest the case of the plaintiffs. He relied on TOTAL INT. LTD V. AWOGBORO (1994) 4 NWLR (PT. 337) 147 AT 166.
It is his view that having regard to the facts of this case, it is safe to reach the conclusion that the Defendant/Appellant must be taken to have submitted itself to the
12
jurisdiction of the lower Court and relied on case of TOZIER V. HAWKINS (1885) 15 Q.B.D 650 as an authority for the proposition that a party appearing unconditionally is deemed to have waived any objection to the jurisdiction of the Court. That the writ of summons was filed on 25/9/2008 and the Appellant filed memorandum of appearance on 23/10/2008. That the appellant fully participated in the hearing of the 1st and 2nd Respondents application for interlocutory injunction and had filed counter affidavit to it before filing the motion to set aside the writ on 19/1/12009, thus unequivocally manifesting their intention to defend the action. He maintained that the Appellant showed that any objection to the jurisdiction of the Court had either been waived or had never been entertained. He cited BARZASI V. VISIONI (1973) NMLR 1 AT 8.
?
Counsel argued that while the Appellant was served with the writ he entered appearance without protest or conditionally and participated in the proceedings up to the pre-trial stage, he referred to pages 92-93, 129-132 and 173 of the record and that by these acts the Appellant has waived his right to object to any irregularity
13
emanating from the earlier proceedings.
He placed reliance on SAUDE V. ABDULLAH (1989) 4 NWLR (PT. 116) 387 AT 432 and AUGWUANYI V. NICON INSURANCE PLC (2004) NWLR (PT. 897) AT 639 PARAS C – E. that a party cannot be heard to later complain of an irregularity to which he has acquiesced and cited NOIBI V. FIKOLATI (1987) NWLR (PT. 52) 619.
Learned counsel finally submitted that the Appellant?s approach is on technicality of procedure which our Court today frown at. He relied on EGOLUM V. OBASANJO (1999) 7 NWLR (PT. 611) P. 35 AT 413; and AKPKINIOVO V. AGAS (2004) NWLR (PT. 881) P. 394 AT 422 – 423 PARAS H – B. The Court was urged to resolve the issue in favour of the Respondents against the Appellant.
It is now settled principle of practice and procedure that Rules of Court are meant to be obeyed and followed because they regulate matters in Court and make for the smooth administration of justice. The Rules must be observed and it is the duty of the Court to give effect to the rules and practice of a Court and parties cannot by consent or acquiescence ignore the rules. See KACHIA V. YAZID (2001) 17 NWLR (PT. 742) p. 88 AND F.C.E., OYO V.
14
AKINYEMI (2008) 15 NWLR (PT. 1109) P. 21 AT 48.
In the instant case, the grieve of the Appellant is that the writ of summons by which the 1st and 2nd Respondents commenced this action at the trial Court shows that there is non-compliance with Order 3 Rule 3 and Order 6 Rule 2(1) of the Kaduna State High Court (Civil Procedure Rules) 2007.
The above cited provisions are for ease of reference reproduced hereunder:
Order 3 Rule 3 provide thus:
“Except in the cases, in which any different forms are in these rules, the writ of summons shall be in form 1 with such modifications or variation as circumstances may require”.
Order 6 Rule 2(1) provides that:
“Issue of an originating process takes place upon its being signed by the Registrar or other officer of the Court authorized to sign the writ”
The contention of the Appellant is that the writ of summons was not dated, signed nor sealed by the court Registrar or any officer of the Court duly authorized as required by the rules; and submitted that this defect is fundamental and therefore rendered the writ invalid and ought to be set aside. That this, the parties cannot waive because
15
it cannot be regarded as a mere irregularity as held by the lower Court. Learned counsel relied on Order 5 Rule 1 of the Kaduna State High Court (Civil Procedure) 2007 that provides:
“Where in the beginning or purporting to begin any proceeding there has been failure to comply with requirement of these rules, the failure shall nullify the proceeding.
From the record before this Court as conceded by the 1st and 2nd Respondents its writ of Summons though assessed for payment and were duly charged and paid but was not signed nor stamped by the Court’s officer(s) authorized to do so. Therefore there is non-compliance with the rule hence irregularity in procedure. As stated earlier, rules of Court are purposely made to be obeyed and followed, therefore all procedure set by the rules must be complied with. However, where in the course of following the rules some errors or mistakes are committed or omitted, such error or mistakes would not out rightly render the proceedings a nullity.
Depending on the circumstance of each particular case, where the noncompliance has occasioned miscarriage of justice or where the right of the adverse party will
16
be affected, the Court shall not treat the non-compliance as a mere irregularity and as such mandate the rules to be followed or nullify the proceedings as the case may be. But in a situation where it has not occasioned miscarriage of justice it shall be treated as a mere irregularity and should not vitiate the proceedings. This is because all rules of Court are made in aid of justice and that being so, the interest of justice will have to be given priority over any rule, compliance of which will lead to outright injustice. The Rules are not sine quo non in the determination of a case and therefore not immutable. See ONI V. FAYEMI (2008) 8 NWLR (PT. 1089) 408.
In ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PT. 1078) P. 465 AT 510 PARAS G – H, the Supreme Court held inter alia that:
It is not every non-compliance with rules of court that vitiate the proceedings or do harm to the party in default. As a matter of our adjectival law, and by the state of the non-compliance rules, the Courts will regard certain acts or conduct of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as a matter of our adjectival law,
17
non-compliance rules in their aggregate content point more to this trend than the reverse position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving non-compliance with rules of Court, particularly where such noncompliance, if waived, will be in the interest of justice.”
The Appellant’s counsel argued further that by the use of the word “shall” in Order 5 Rule 1 above, connotes a command of an obligation and cited many authorities on that. It is not in every case that the word ‘shall’ commands obligation because it depends in the con in which it was used. The word (shall) may be interpreted as mandatory, obligatory or merely directory depending on its conual usage. See OLANIYA V. OYEWOLE (2008) 5 NWLR (PT. 1079) P. 114 AT 437. In RE UBA (2008) 7 NWLR (PT. 1085) 70 AT 81 PARAS E – H. The Supreme Court per Tabai, JSC stated the law as follows:
“Rules of Court remain rules of Court and cannot be accorded a status as immutable as statutory provisions.
As mandatory rules of Court are not as sacrosanct as mandatory statutory provisions, Courts of justice are more inclined to regard as
18
directory or permissive any provision in the rules of Court which appears mandatory, if it is implicit in the provision in question or if a combination of other provisions with the provision in question so dictates or if the ends of justice demands that it be so construed. See KATTO v. CBN (1991) 9 NWLR (PT. 214) 126”.
In the instant case, the default, mistake or error that resulted in the non-compliance with the rules was that of the Court’s Registry and not the fault of the 1st and 2nd Respondents. The Respondents complied with all the rules as regard initiation of a suit but the Court on its own part mistakenly omitted to sign and seat the writ. I do not think that it will be fair to visit the sin of the Registrar on that of the 1st and 2nd Respondents.
See ODOFIN V. ONI (2001) 17 NWLR (PT. 701) P. 488 AT 501.
Order 5 Rule 1(2) of the High Court (Civil Procedure) Rule 2007 provides:
“Where at any stage in the course of or in connection with any proceedings there has by reason of any thing done or left undone been a failure to comply with the requirements as to time, place, manner or form the failure shall be treated as an
19
irregularity and may not nullify such steps taken in the proceeding. The Court may give any direction as it thinks fit to regularize such steps”.
See IBIECHEFU V. GOV. IMO STATE (2008) 14 NWLR (PT. 1106) P.22 IGWE UZUR V. ONWUZOR (2007) 4 NWLR (PT. 1024) P. 303 AT 315.
Having regard to the fact that the Appellant partook in the proceedings and was not misled in any way to have caused or occasioned injustice on him. I am in agreement with the decision of the learned trial judge that Courts are instituted to do justice and it will be abandonment of the Courts responsibility to succumb to a blackmail of a counsel to take backward step in the administration of substantial justice by allowing counsel to rely on technicality to shore up their case. See OKOYE V. NWULU (2001) 11 NWIR (PT. 724) 362 AT 366. The heydays of technicality are now over because the weight of judicial authorities today shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case See AKPKINIOVO V. AGAS (2004) NWLR (PT 881) 39a AT 422 423; and EGOLUM v. OBASANJO (SUPRA).
I therefore resolved this sole issue against the
20
Appellant in favour of the 1st and 2nd Respondents.
On the whole I find no merit in this appeal and is hereby dismissed.
The Ruling of the lower Court delivered on the 4th day of January, 2009 is hereby affirmed. I award a cost of N50,000.00 (Fifty Thousand Naira only) in favour of the 1st and 2nd Respondents against the Appellant.
ABDU ABOKI, J.C.A.: I have the opportunity of reading the judgment of my learned brother, UWANI MUSA ABBA AJI, JCA, and I agree with the conclusion that the appeal be dismissed. I too affirmed the Ruling of the Kaduna State High Court in Suit No. KD/KAD/418/2008, delivered on the 4th day of January, 2009.
I abide by the consequential order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the leading judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusions reached therein.
This appeal turns on the effect of non-compliance with the provision of
21
Order 6 Rule 2(1) of the High Court of Kaduna State Civil Procedure Rules 2007 which states that “issue of an originating process takes place upon its being signed by the Registrar or other officer of the Court authorized to sign the writ”. The question before the lower Court was – where the Registrar or other officer authorized by the Court fails to sign a writ of summons, does it amount to a fundamental defect that nullifies the entire proceedings of the Court or a procedural irregularity that can be overlooked.
Now, it is trite that Rules of Court are part of the machinery of justice made by the Courts to regulate their proceedings. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of the nature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act and consequently have the force of law.
Accordingly, as a general rule, Rules of Court must be obeyed by litigants and they are binding on all the parties before the Court – Aromolaran v. Oladele (1990) 7 NMLR (Pt 162) 359, Duke v. Akpabuyo Local Government (2005) 19 NMLR (Pt 959) 130, owners of the MV “Arabella” v. Nigeria
22
Agricultural Insurance Corp (2008) 11 NWLR (Pt 1097) 182, Agip (Nig) Ltd v. Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348.
It must, however, be understood that not every non-compliance with the Rules of Court is necessarily fatal to the case of party or to the process filed by a party in a matter. One of the most firmly established principle of judicial adjudication is that the Rules of Court must never be interpreted to defeat the course of justice and that where the effect of a strict adherence to a provision of the Rules of Court will hinder the Court from performing its primary duty of doing substantial justice between parties to a dispute, and. cause injustice, the Court must jettison the provision in favour of the doing of substantial justice. This principle has been consistently reiterated by the Supreme Court over the years and a few instances will be mentioned as examples. In UTC (Nig) Ltd v. Pamotei (1989) 2 NWLR (Pt 103) 244, Belgore, JSC (as he then was) stated at page 296F that:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to
23
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 cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”
In Federal Government of Nigeria V. Zebra Energy Ltd (2002) 18 NWLR (pt 798) 162 Belgore JSC (as he then was) again stated at pages 204 – 205 thus:
“… Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the Court to arrive at the justice of a case… The Court shall never be shackled by procedure; case is not made for procedure, it is the other was round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities … what is relevant in a case of this nature is the
24
question of justice of the case.”
In Fidelity Bank Plc V. Monye (2012) 10 NMLR (Pt 1307) 1, Adekeye, JSC at page 32 F-H made the point thus:
“Rules of court touch upon the administration of justice. They are promulgated to regulate matters in court and to assist parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice. The courts have leaned heavily on the side of doing justice…. The rules must be understood as made with that fundamental principle at the background.
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 interprete a rule of court to defeat access to justice which is guaranteed by the Constitution.”
It is in this wise that the Supreme Court categorically stated that any noncompliance with the Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice – Okoye v. Nigerian Construction Co Ltd (1991) 6 NWLR (Pt 199) 501, Famfa Oil Ltd vs. Attorney General, Federation (2003) 9-10 SC 31. The drafters
25
of the High Court (Civil Procedure) Rules of practically every State, including Kaduna State recognize this principle and have a provision in all the Rules of Court to the effect that “where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”
Speaking specifically on the procedure in the Rules of Court guiding issuance of originating process, the Supreme Court has held that it is purely an administrative matter of the Court’s Registry which does not involve a claimant or plaintiff and that failure to sign an originating process by the designated officer is a mere procedural irregularity which cannot by fig of imagination be placed on the shoulders of the claimant or plaintiff who has done all that is necessary to file and commence the action –
26
Saude V. Abdullahi (1989) 7 SC (Pt II) 116 and Famfa Oil Ltd v. Attorney General, Federation supra.
The answer to the question that confronted the lower Court in this matter, therefore, was that the non-compliance with the provisions of Order 6 Rule 2(1) of the Rules of the High Court of Kaduna State in the issuance of the writ of summons was a mere procedural irregularity that did not affect the validity of its proceedings.
The issue of non-compliance with Rules of the High Court of Kaduna State raised by the counsel to the Appellant and which culminated in this appeal was open display of the unhealthy romance that the Counsel to the Appellant has with the technicalities of the law. Unfortunately for Counsel, the Courts are no longer enthralled by such displays and are focused on the substance rather the technicalities of the law. The Courts have shifted away from the orthodox method of narrow technical approach to justice and the weight of judicial opinion is now predominantly in favour of the Court doing substantial justice, as opposed to technical justice. This is because technical justice, in reality, is not justice but a caricature of it. It
27
is justice in inverted commas and not justice synonymous with the principles of equity and fair play. In the immortal words of Oputa, JSC in Bello v. Oyo State (1986) 5 NWLR (Pt 45) 826 at 886:
The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid to justice…”
The point was reiterated by Edozie, JSC in Buhari v. Obasanjo (2003) 17 NWLR (Pt 850) 587 thus:
The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality… or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”
The lower Court was thus on point when it flowed with the
28
weight of judicial opinion and dismissed the application of the Appellant. I find no merit in this appeal and I too dismiss it accordingly. I affirm the Ruling of the High Court of Kaduna State in suit No KDH/KAD/418/2008 delivered by Honorable Justice Esther Inuwa on the 4th of February, 2009. I abide by the order on costs in the leading judgment.
29
Appearances:
No appearanceFor Appellant(s)
Ayodeji Olabode, Esq. with him, D.J. Mavah, Esq. for 1st and 2nd Respondents.
No appearance for the 3rd and 4th RespondentsFor Respondent(s)
Appearances
No appearanceFor Appellant
AND
Ayodeji Olabode, Esq. with him, D.J. Mavah, Esq. for 1st and 2nd Respondents.
No appearance for the 3rd and 4th RespondentsFor Respondent
