ACCESS BANK v. SUNSHINE OIL & CHEMICAL DEV. CO. LTD (2021)

ACCESS BANK v. SUNSHINE OIL & CHEMICAL DEV. CO. LTD

(2021)LCN/15175(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 19, 2021

CA/IB/88/2016

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

SUNSHINE OIL & CHEMICAL DEVELOPMENT CO. LTD. RESPONDENT(S)

RATIO

WHETHER LEAVE OF THE COURT IS REQUIRED TO APPEAL AGAINST THE EXERCISE OF THE DISCRETION OF THE LOWER COURT IN AN INTERLOCUTORY DECISION

Let me hasten to state that even if there was a ground of appeal, but I iterate that there is none; being an appeal against the exercise of the discretion of the lower Court in an interlocutory decision, such a ground of appeal would have been an appeal on mixed law and facts for which leave of Court is required to appeal under Section 242 (1) of the 1999 Constitution (as amended). The Appellant neither sought nor obtained leave so any such ground of appeal would have been incompetent. SeeCBN vs. OKOJIE (2002) 8 NWLR (PT 768) 48, OKEKE vs. OBINABO (2018) LPELR (44533) 1 at 26-29, OGUNMILUA vs. ASHAOLU (2013) LPELR (22324) 1 at 22-23 and GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 182. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER THE COURT CAN RAISE AN ISSUE SUO MOTU AND UNILATERALLY RESOLVE IT WITHOUT HEARING THE PARTIES ON SUCH ISSUES

It is rudimentary law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the parties, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12. However, the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. SeeOMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1 MJSC (PT 1) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245) 1154. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Oyo State (hereinafter referred to as the lower Court) in SUIT NO. I/820/2008: SUNSHINE OIL & CHEMICAL DEVELOPMENT CO. LTD vs. ACCESS BANK PLC delivered on 18th February 2016. By an application filed on 26th January 2016, the Appellant herein, as Defendant before the lower Court, sought for the following orders:
1. An Order of this Honourable Court setting aside the order made by the Court on 19th January, 2016 fixing this suit for trial on the 28th and 29th January, 2016 and 3rd February, 2016 respectively.
2. An order of this Honourable Court dismissing this suit for failure of the Claimant/Respondent to comply with the mandatory provisions of Order 25 Rule 1(1) of the Rules of this Honourable Court.

At the hearing of the application, the Appellant abandoned prayer one of the application and the same was struck out. After considering the second prayer, the lower Court held that the provisions of Order 25 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010, which the relief sought in the

application was premised upon had been complied with, in consequence of which it held that the application failed and it was accordingly struck out. The matter was then, with consent of learned counsel, adjourned for definite hearing.

The Appellant, dissatisfied with the decision of the lower Court, appealed against the same by Notice of Appeal filed on 3rd March 2016. The scarified Ruling of the lower Court is at pages 617-619 of Volume 2 of the Records of Appeal, while the Notice of Appeal is at pages 620-625 of Volume 2 of the Records of Appeal. The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument.

The Appellant’s Brief of Argument was filed on 24th March 2016, wherein a sole issue was distilled for determination, videlicet:
Having regard to the intendment of the provisions of Orders 1 and 25 of the High Court of Oyo State (Civil Procedure) Rules, 2010, whether the lower Court rightly assumed jurisdiction as a trial judge without the conduct and scheduling of Pre-trial conference?

The Respondent’s Brief of Argument was filed on 6th February 2020 but deemed as

properly filed on 20th October 2020. The Respondent formulated three issues for determination, scilicet:-
i. Whether the learned trial judge was right to have dismissed the Appellant’s Motion on Notice dated 25th January, 2016. (Ground 2)
ii. Whether reading the provisions of the Oyo State High Court (Civil Procedure) Rules as a whole there is any provision disqualifying a Pre-Trial Judge from also acting as the Trial Judge. (Ground 3)
iii. Whether the learned trial Judge was in error when with the consent of both parties he adjourned the suit for hearing. (Ground 1)

At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. I will presently review the submissions of learned counsel on the issues as distilled by them and thereafter seamlessly resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that by Order 1 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010, the said Rules shall apply to all proceedings including all part-heard causes and matters in respect of

steps to be further taken in such causes and matters. It was posited that the word SHALL having been employed in the stipulation, made it mandatory vide CORPORATE IDEAL INS. LTD vs. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (PT 1405) 165 at 193. It was opined that rules of Court being subsidiary legislation have the force of law. The case of UHEMBE vs. PARKES (2014) 3 NWLR (PT 1395) 475 at 502 was relied upon.

It was further submitted that trial had not commenced at the time when the 2010 Rules of the lower Court came into force, as a result of which the Respondent was bound to apply for the issuance of pre-trial conference Notice in Form 17 as stipulated by Order 25 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010. It was asserted that non-compliance with the provisions of the said Order 25 Rule 1 (1) attracts the penalty of dismissal of the suit under Order 25 Rule 1 (3) of the Rules. The case of IKEYI vs. CROWN REALTIES PLC (2010) 6 NWLR (PT 1344) 114 at 127 was referred to.

The Appellant asserted that it was a wrong exercise of judicial discretion for the lower Court to have allowed the Respondent’s counsel who did not

file any written address to make oral submissions on the application and that an appellate Court is entitled to interfere with such exercise of discretion. The cases of ERONINI vs. IHEUKO (1989) 3 NWLR (PT 101) 46 at 60-61 and MTN (NIG) COMM. LTD vs. WI GATAP & INV. LTD (2013) 4 NWLR (PT 1344) 276 at 296 were cited in support.

It is the further contention of the Appellant that Rules of Court are meant to be obeyed and that the lower Court disregarded the provisions of the Rules and sacrificed justice on the altar of speed when it adjourned the matter for hearing without holding a pre-trial conference. It was opined that a pre-trial judge is distinct from a trial judge and that the statement of the lower Court that in the High Court of Oyo State, the pre-trial judge is also the trial judge violates the provisions of the Rules of Court. It was conclusively submitted that it is not within the contemplation of the Rules of Court for the same judge to be pre-trial and trial judge or for pre-trial conference to be waived. The failure of the lower Court to schedule a pre-trial conference, it was maintained, was prejudicial. The stipulations of Order 25 Rule 3

and the case of IKEYI vs. CROWN REALTIES PLC (supra) at 127 were called in aid on the essence of pre-trial conference.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that it filed the pre-trial Forms 17 and 18 and that even if the Forms were irregularly filed, the lower Court could not close its eyes to the same since Courts are to do justice and not cling to technicalities. The cases of UWAIFO vs. A-G BENDEL STATE (1982) 7 SC 124 at 187, UBA LTD vs. NWORA (1978) 11-12 SC 1 at 6 and OBAKPOLOR vs. THE STATE (1991) 1 NWLR (PT 165) 113 at 129 were referred to. It was asserted that the Forms 17 and 18 having been filed, knocked the bottom out of the Appellant’s application for the case to be dismissed for failure to file the said Forms and that the lower Court countenancing the said Forms as filed did not occasion any miscarriage of justice.

It was contended that with the several steps taken by the Appellant, it can no longer complain about the failure to file Forms 17 and 18 within time, since it had waived the irregularity by taking steps videAKOCHE vs. OCHENJELE (2013) LPELR-20782 (CA). It was posited that the

statement of the lower Court that Judges in the High Court of Oyo State act as both pre-trial and trial judge is an obiter and did not relate to any application before the Court and so did not form part of the ratio decidendi which can be appealed against. The cases of ONOWU vs OGBOKO (2016) LPELR-40074 (CA) and BULET INT’L (NIG) LTD vs. OLANIYI (2017) LPELR-42475 (SC) were relied upon.

It was further submitted that by Section 122 (2) (m) of the Evidence Act, the lower Court was entitled to take judicial notice of the course of proceedings and practices of the High Court of Oyo State that it is the same judge that is pre-trial and trial judge in a matter. The Appellant, it was asserted, had not complained that, that was not the position. It was stated that there was nothing in Order 25 Rule 5 of the Rules of the lower Court, relied upon by the Appellant, suggesting that a pre-trial judge cannot also be the trial judge. It was maintained that the lower Court properly exercised discretion when it allowed the Respondent’s counsel to make oral submissions, since the failure to file a written address was an irregularity cured by Order 5 Rule 1 (2)

of the Rules of the lower Court. The cases ofGLOBAL SOAP & DETERGENT IND. LTD vs. NAFDAC (2011) LPELR–4202 (CA), OLAIFA vs. ADENIJI (2017) LPELR–42708 (CA) and REGISTERED TRUSTEES OF THE WORD OF POWER GLOBAL MINSTRIES INTERNATIONAL (THE TRIUMPHANT CHRISTIAN CENTRE) vs. DN TYRE & RUBBER PLC (2016) LPELR-42255 (CA) were cited in support.

It is the further contention of the Respondent that the lower Court was right to have adjourned the case for hearing with the consent of counsel; and that the Appellant having consented, cannot complain as it had given its consent to the irregularity of the matter being adjourned for hearing without a pre-trial conference being held. It was maintained that the failure to conduct the pre-trial conference was a mere irregularity which did not vitiate the proceedings. The cases of AUDU vs. GIMBA (2019) LPELR-47403 (CA), IBATOR vs. BARAKURO (2007) ALL FWLR (PT 371) 1669 at 1687-1688 and UNITY LIFE & FIRE INS. CO. LTD vs. INT’L BANK OF WEST AFRICA LTD (2001) LPELR-3412 (SC) were called in aid. It was conclusively asserted that rules of Court were handmaids of justice and that the breach of a rule

of practice was an irregularity which does not render the proceedings a nullity since Courts have eschewed reliance on technicality. The cases of DUKE vs. AKPABUYO LG (2005) 19 NWLR (PT 959) 130 at 143, EKPO vs. GTB PLC (2018) LPELR-46079 (CA), NNEJI vs. CHUKWU (1988) NWLR [no volume stated] (PT 81) 184 and MFA vs. INONGHA (2014) LPELR-22010 (Sc) were referred to.

RESOLUTION
When properly contextualized, the quodlibet in this matter is not convoluted. In order to conduce to the utmost pellucidity, I will in the resolution of this appeal proceed within the confines of the quodlibet which spawned this appeal. At the risk of prolixity, the provenance of this matter is the Appellant’s application filed on 26th January 2016, wherein it sought an order of the lower Court dismissing the Respondent’s Suit for failure to comply with the provisions of Order 25 Rule 1 (1) of the Rules of the lower Court. The said provision requires the claimant in an action to apply for issuance of a pre-trial conference notice within 14 days after the close of pleadings. By Order 25 Rule 1 (3) of the Rules of the lower Court, where the claimant does not make the

application, the defendant may do so or apply for an order to dismiss the action. It is limpid that the crux of the Appellant’s contention is that since the Respondent failed to apply for pre-trial conference Notice as provided, the action had to suffer the prescribed penalty of dismissal. This crux of the application is translucent from grounds vi-xiv on which the Appellant predicated its application at the lower Court and which read as follows:
“vi. Order 25 Rule 1(1) of the High Court (Civil Procedure) Rules, 2010 provides that within 14 days after close of pleadings, the Claimant shall apply for the issuance of pre-trial conference Notice as in Form 17.
vii. The Claimant/Respondent has failed, neglected and/or refused to comply with the said provisions of Order 25 Rule 1(1) of the High Court (Civil Procedure) Rules, 2010.
viii. This Honourable Court is a pre-trial Court and not a trial Court within the contemplation of Order 25 of the Rules of this Court.
ix. Pre-trial conference has not been held in respect of the present suit.
x. There is no provision relating to waiver of pre-trial conference in the Rules of this

Honourable Court.
xi. No pre-trial conference report has also been issued by this Court in respect of the present suit.
xii. The conditions precedent to set this suit down for trial has not been fulfilled by the Claimant/Respondent.
xiii. This Honourable Court lacks the requisite jurisdiction to fix the present suit for trial and/or proceed with the hearing of the present suit.
xiv. By virtue of the mandatory provisions of the Rules of this Honourable Court, the Honourable Court has a legal duty to dismiss this suit for non-compliance with the relevant provisions of the Rules of Court.”

Ruling on the application, the lower Court rightly confined itself to the terms of the prayer sought on the application and held, inter alia, as follows at page 618 of Volume 2 of the Records:-
“I must keep strictly to this application. The prayer of the applicant is for the Dismissal of the suit because the Claimant failed to file the said form 17 and 18 out of time the requisite default fees had been paid by the Claimant. Copy of the receipt is attached to the Counter affidavit in response to the Application. This Court holds the said

Form 17 and 18 as filed by the Claimant [to] be regular-having regularized their position with the paying of the default fees. The Claimant I hold has therefore complied with Order 25 Rule 1 (11) [sic] of the High Court Civil Procedure Rules 2010.
The Court I must say has moved away from the era of technical justice to era of substantial justice.
Both Counsel should always has [sic] it at the back of their mind that the provisions Of Order 1 Rule 1 (2) which says that Application of these rules shall be directed towards the achievement of a just efficient and speeding [sic] dispensation of justice. Based on all the above stated I hold that the application fails and it is accordingly struck out.”

It is effulgent that the ratio decidendi of the lower Court for dismissing the application is that the Respondent had complied with the provisions of the Rules by filing the requisite Forms and that the Court is to do substantial justice. So, at the core of the disceptation in this matter is whether the lower Court, in the light of the Forms 17 and 18 filed by the Respondent, even if irregular, having been filed out of time, should have closed its

eyes to the same and dismissed the action. I will return to this in a trice.

Without a doubt, the lower Court in the course of the proceedings granted the Respondent’s counsel, who did not file any written address, leave to make oral submissions on the application (see page 615 of Volume 2 of the Records). Evidently, the Appellant is peeved by this and has made submissions in this regard in paragraph 4.13-4.25 on pages 8-12 of the Appellant’s Brief of Argument. It seems to me that the said submissions are floating as there is no ground of appeal complaining about the exercise of discretion by the lower Court to allow the Respondent’s counsel make oral submissions, having failed to file a written address. Shorn of their particulars, the three grounds of appeal filed by the Appellant are as follows:
“GROUND ONE
The lower Court erred in law when the Court assumed jurisdiction to try the Respondent’s suit and fixed same for trial, notwithstanding that pre-trial conference had not been held in respect of the said suit.”
GROUND TWO
The learned Judge erred in law when the Court refused the

Appellant’s Motion on Notice dated 25th January, 2016 for being unmeritorious.”
“GROUND THREE
The lower Court erred in law when the Court held that:
‘In Oyo State, the pre-trial Judge is also the Trial Judge in respect of cases before a Judge…’.”
(See pages 621, 622 and 633 of the Records)
It is hornbook law that arguments or oral submissions on questions that are not covered by a ground of appeal are incompetent and must be discountenanced: THE NIGERIA ARMY vs. ODEBODE (2018) LPELR (46646) 1 at 34-36, ACCESS BANK vs. DURA TRUST CONTRACTORS LTD (2019) LPELR (48732) 1 at 3-4 and KAMBA vs. NDAGI (2020) LPELR (50245) 1 at 74-75. The implication of there being no ground of appeal complaining that the lower Court allowed the Respondent to make oral submissions is that the Appellant had accepted the decision as correct, conclusive and binding and it cannot be heard to argue contrariwise. See IYOHO vs. EFFIONG (2007) 4 SC (PT 111) 90 and DABUP vs. KOLO (1993) 2 SCNJ 1.

Let me hasten to state that even if there was a ground of appeal, but I iterate that there is none; being an appeal against the

exercise of the discretion of the lower Court in an interlocutory decision, such a ground of appeal would have been an appeal on mixed law and facts for which leave of Court is required to appeal under Section 242 (1) of the 1999 Constitution (as amended). The Appellant neither sought nor obtained leave so any such ground of appeal would have been incompetent. SeeCBN vs. OKOJIE (2002) 8 NWLR (PT 768) 48, OKEKE vs. OBINABO (2018) LPELR (44533) 1 at 26-29, OGUNMILUA vs. ASHAOLU (2013) LPELR (22324) 1 at 22-23 and GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 182. In a coda, I would not join the parties on any consideration of whether the lower Court was wrong in allowing the Respondent to make oral submissions, as this Court does not have the jurisdiction so to do since no such complaint was raised in the grounds of appeal contained in the Notice of Appeal, the originating process for this appeal.

The issue that there is no ground of appeal in respect of the exercise of discretion by the lower Court allowing the Respondent’s counsel to make oral submissions without filing a written address has been raised suo motu by the Court. It is

rudimentary law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the parties, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12. However, the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. SeeOMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1 MJSC (PT 1) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245) 1154. It is a question which borders on the jurisdiction of the Court where submissions are proffered on questions not covered by the grounds of appeal, the circumstances afford the exception to the rule where the parties are to be heard on an issue raised suo motu by the Court.

There is one further matter. I have clearly stated the ratio decidendi of the lower Court in dismissing the Appellant’s application. Doubtless, the lower Court having

conclusively determined the Appellant’s application, refusing the same and striking it out, continued and stated, without any issue arising in that regard, as borne out by page 618 of Volume 2 of the Records, that in Oyo State the pre-trial Judge is also the trial Judge in respect of cases before her. I agree with the Respondent’s counsel that this is an obiter dictum as it was made by the lower Court by the way, after it had determined the application before it. It definitely does not form part of the ratio decidendi of the lower Court for refusing the Appellant’s application filed on 26th January 2016.
It is abecedarian law that the part of the judgment or ruling of a Court which constitutes the decision of the Court and which is appealable is the ratio decidendi and not a statement or an unsolicited remark made in passing by the Court which in legalese is referred to as obiter dictum. See ACHIAKPA vs. NDUKA (2001) LPELR-64 (SC) 1 at 43-44, ABACHA vs. FAWEHINMI (2000) 6 NWLR (PT 660) 228 at 351, OMOKHODION vs. FRN (No. 2) (2005) 10 NWLR (PT 934) 581 at 606, NWANKWO vs. CUSTOMARY COURT NDIAWA, ARONDIZUOGU (2009) LPELR (4589) 1 at 10,

ODUNUKWE vs. OFOMATA (2010) 18 NWLR (PT 1225) 404 and ORANEZI vs. PDP (2016) LPELR (41533) 1 at 16. Accordingly, I would not proceed on the odyssey of interrogating an obiter dictum as it would be a mere academic exercise which would not impact on whether the decision of the lower Court refusing the Appellant’s application is correct, since the said obiter dictum is extrinsic and not part of the ratio decidendi of the lower Court on the application.

Now, returning to the quodlibet, the lower Court in refusing the Appellant’s application held that the Respondent had filed the requisite forms for pre-trial conference and consequently struck out the Appellant’s application. I iterate that the Appellant’s prayer for an order to dismiss the Respondent’s action was predicated on the fact that it had not filed the requisite forms for pre-trial as stipulated in the Rules of the lower Court. By all odds, the pre-trial conference Notice Forms filed by the Respondent were not filed within the time stipulated by Order 25 Rule 1 (1) of the Rules of the lower Court, but that did not ipso facto make the Forms a nullity. The Forms, though

irregularly filed, were not a nullity but remained valid until set aside. The lower Court could not have closed its eyes to the existence of the said Forms. See UBA vs. NWORA (supra) at 6-7 OTEJU vs. MAGMA MARITIME SERVICES LTD (1999) LPELR (6744) 1, MANA vs. PDP (2011) LPELR (19754) 1 at 36-37 and UKIRI vs. GECO-PRAKLA (NIG) LTD (2010) 16 NWLR (PT 1220) 544. It is not every irregularity that can lead to an action being nullified and defenestrated. The irregularity has to be such that materially affects the merits of the case and occasions a miscarriage of justice. This is especially so in the light of the provisions of Order 5 Rule 1 (2) of the Rules of the lower Court which provides that a failure to comply with requirements as to time shall be treated as an irregularity and may not nullify the proceedings. See KOSSEN (NIG) LTD vs. SAVANNAH BANK NIG LTD (1995) 9 NWLR (PT 420) 439, EBOH vs. AKPOTU (1968) LPELR (25434) 1 at 7-8 and ODOM vs. PDP (2015) LPELR (24351) 1. In the circumstances, the lower Court was correct to have countenanced the pre-trial conference Notice Forms which were irregularly filed as it was a procedural irregularity that would not have

the effect of operating for the purpose of defeating the course of justice: ABUBAKAR vs. YAR’ADUA (2008) 1 SC (PT 11) 77 at 120-122, EGBO vs. AGBARA (1999) LPELR (1036) 1 at 22 and SHUAIBU vs. NIGERIA-ARAB BANK LTD (1998) LPELR (3067) 1 at 42-44.
The Appellant forcefully argued that rules of Court are meant to be obeyed and that the lower Court was wrong to adjourn the matter for hearing without first scheduling and holding a pre-trial conference. Let me restate that it is not every procedural irregularity that would willy-willy result in the proceedings being nullified. In FAMFA OIL LTD vs. A-G FEDERATION (2003) LPELR (1239) 1 at 13-14 Belgore, JSC (later CJN) stated:
“A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice. There is no allegation of any miscarriage of justice in this matter… Procedure is to guide orderly and systematic presentation of a cause, it is to help the substantive law and not to enslave it.”
See also EDO STATE GOVT vs. BUSINESS VENTURES (NIG) LTD (2017) LPELR (42503) 1 at 7-8, AKOCHE vs. OCHENJELE (supra) at 19-22 and

OSIGWE vs. PSPLS MANAGEMENT CONSORTIUM LTD (2009) VOL. 171 LRCN 94 at 113.

The Appellant has not submitted that it suffered any miscarriage of justice as a result of a pre-trial conference not having taken place before the lower Court fixed the matter for hearing. In fact, it is my deferential view that the Appellant could not have so contended because, well aware that a pre-trial conference had not taken place, it consented and even suggested dates for the hearing of the matter (see pages 618-619 of Volume 2 of the Records). The Appellant, having by its action of consenting for the matter to be fixed for hearing, had waived and abandoned its legal right to the holding of a pre-trial conference. It cannot now contend on appeal that the lower Court was wrong to have assigned dates for hearing of the matter. See ODU’A INVESTMENT CO. LTD vs. TALABI (1997) LPELR (2232) 1 at 88, ADENIYI vs. GOVERNING COUNCIL OF YABATECH (1993) LPELR (128) 1 at 55, UNITY LIFE & FIRE INS. CO LTD vs. INT’L BANK OF WEST AFRICA LTD (supra) and AUDU vs. GIMBA (supra).

In conflation, I am unable to see my way clear in allowing this appeal. The appeal is devoid of merit and

it is hereby dismissed. The decision of the lower Court, Coram Judice: A. A. Aderemi, J. delivered on 18th February 2016 in SUIT NO. I/820/2008 refusing the Appellant’s application filed on 26th January 2016 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N100, 000.00.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, JCA just delivered.
My Lord has dealt with the issue in this appeal appropriately.

As stated in the lead Judgment that the Appellant has not suffered any miscarriage of Justice as a result of a pre-trial conference not having taken place before the lower Court fixed the matter for hearing. I will add that in view of the steps already taken by the Respondent, it is my view that it is not every irregularity that will nullify an entire proceedings, particularly where the irregularity did not affect the merit of the case or occasion a miscarriage of Justice.
see – EGBO VS AGBARA (1999) 1 NWLR PART 481 PAGE 293.

Furthermore, it is now the settled position of the Law that Technical Justice is no Justice, the

Courts of law are expected to distance itself from it. Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of Justice would be occasioned. And where the facts are clear, the Court should ignore technicalities in order to do substantial justice. see – FBN VS TSA IND LTD (2010) 15 NWLR PART 1216 PAGE 247.

In view of the foregoing and for the fuller reasons ably set out in the lead Judgment, this appeal in my view is unmeritorious and it is hereby dismissed.
I abide by the consequential orders made in the said lead Judgment including order as to cost.

FOLASADE AYODEJI OJO, J.C.A.: I had the privilege to read in draft, the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I have carefully perused the processes before us and I agree that the purport of Order 5 Rule 1 (2) of the Oyo State High Court (Civil Procedure) Rules, 2010 is that failure to comply with the requirement of the Rules of the lower Court should be treated as an irregularity which would not nullify the proceedings.
Waiver of compliance with the Rules of Court on the conduct of pre-trial

conference to forestall unbearable delay of the action is a mere irregularity which should not lead to a dismissal of the action. See the decision of the Supreme Court inU.T.C. (NIG) LIMITED VS. PAMOTEI (1989) 2 NWLR (PT. 103)244 AT 296. PARAS. F-G, where it was held, per Belgore, JSC 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 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.”
See also Olufeagba Vs. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384; Sosanya vs. Onadeko (2005) 8 NWLR (Pt. 926) 185; Adegbite vs. Amosu (2016) 15 NWLR (Pt. 1536)405.

It is for the above reason and the fuller reasons ably stated by my learned brother in the lead Judgment that l agree that this appeal lacks merit and it is also dismissed by me. I affirm the judgment of the lower Court and abide by the consequential orders contained in the lead Judgment including the order as to costs.

Appearances:

Oluwasegun Ayinde, Esq. For Appellant(s)

Chukwudi Maduka, Esq. For Respondent(s)