BABATUNDE & ORS v. FADEYI & ORS
(2022)LCN/16332(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 24, 2022
CA/IB/151/2015
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. RAMONIN BABATUNDE 2. BOLANLE BABATUNDE 3. OLATOYO BABATUNDE 4. KABIRU BABATUNDE APPELANT(S)
And
1. HAMSAT AKANMU FADEYI 2. MUDASIRU SALIMON FAYOADE 3. LUKEMAN RAUFU FAYOADE 4. NURUDEEN TAIWO FADEYI RESPONDENT(S)
RATIO
WHETHER OR NOT AN ENROLMENT ORDER OF A JUDGMENT SUPERSEDS THE CONTENT OF THE ACTUAL JUDGEMENT
Secondly, it is trite law that the enrolment order of a ruling or judgment does not supersede the content of the actual ruling or judgment. See Akin Akinyemi v. Professor Mojisola A. O. Soyanwo & Anor (2006) All FWLR (Pt. 335) 58. PER ADUMEIN, J.C.A.
THE POWER OF THE JUDGE TO EXTEND OR ADJOURN THE TIME FOR DOING ANY ACT OR TAKING ANY PROCEEDINGS
Now Order 44 Rule 4 of the High Court of Oyo State (Civil Procedure) Rule, 2010 provides as follows:
“4 The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Judge or under these rules, shall pay to the Court an additional fee of N100,00 (one hundred naira) for each day of such default at the time of compliance.”
The above provisions are clear, plain, straightforward and unambiguous. And the law is settled that where the words used in a legislation are clear, plain and unambiguous they (the words) should give their ordinary, natural and grammatical meaning unless by doing so an absurdity would result. See Josiah Ayodele Adetayo & 2 Ors v. Kunle Ademola & 2 Ors (2010) 15 NWLR (Pt. 1215) 169. PER ADUMEIN, J.C.A.
THE MEANING OF THE WORD “SHALL” IN AN ENACTMENT
I wish to restate the law that, depending on the very context in which it is used, “The word “shall” in an enactment does not always connote mandatoriness. It often connotes permissiveness or directory”, – per Muhammad, JSC in the case of Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt. 1056) 118 at 187.
See also the cases of Francis Adesegun Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126, Alhaji Oloyede Ishola v. Memudu Ajiboye (1994) 6 NWLR (Pt. 352) 506, University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376, Hope Chinyelu Okpala v. The Director-General of Commission for Museums & Monuments (1996) 4 NWLR (Pt. 444) 585 and Dr. Tunde Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.
In this case, the word “shall” in the proviso to Order 44 Rule 4 of the High Court of Oyo State (Civil Procedure) Rules, 2010, clearly and obviously connotes mandatoriness of payment of an additional fee of N100.00 (One hundred naira) for each day of default of compliance with any order of the Court for doing any act or thing. PER ADUMEIN, J.C.A.
THE POSITION OF LAW WHERE A PROCEDURE FOR DOING A THING HAS BEEN STATUTORILY PROVIDED
I need to emphasize the settled principle of law that where a procedure for doing a thing has been statutorily provided, no other method of doing that thing is acceptable. See C. C. B. (Nig) PLC v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 201) 528 and Dr. Arthur Agwucha Nwankwo & 2 Ors v. Alhaji Umaru Yar’Adua & 40 Ors (2010) 12 NWLR (Pt. 1209) 518 at 559.
Another relevant principle of law is that a statutory provision cannot be waived. See General Mohammadu Buhari & Anor v. Alhaji Mohammed Dikko Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446; (2003) 6 SCNJ 344, Attorney General, Adamawa State v. Mr. Jonah Jauro Ware & Ors (2006) All FWLR (Pt. 306) 860 at 871 and Chief Diepreye Alamieyeseigha v. The Federal Republic of Nigeria (2006) 16 NWLR (Pt. 1004) 1 at 58. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the claimants in Suit No. I/539/2007 which they commenced by way of a writ of summons in the High Court of Oyo State, holden at Ibadan, wherein they are seeking the following claims:
“1. Declaration that the Plaintiffs are the persons entitled to Statutory Right of Occupancy of all that piece and parcel of the land lying and being around Akinjole Village Egbeda Area of Ibadan to be filed hereafter.
2. Forfeiture of all that area occupied by the defendants as customary tenants of Akinjole family.
3. Possession of all the said area of land occupied by the defendants.
4. N10,000.00 damages for trespass on the area not granted to them.
5. Perpetual injunction restraining the defendants by themselves their servants, agents and privies from further entry upon the said Ladejo Akinjole family land at Akinjole village area Ibadan.”
By a motion on notice filed on the 17th day of January, 2014, the appellants, as the claimants/applicants, sought the following orders from the lower Court:
(i) “An order extending the time within which the Claimants may file their Statement of Claim and evidence on oath of witnesses in this suit filed on 3rd October, 2013.
(ii) An order deeming the same filed on 3rd October, 2013 as properly filed and served.
(iii) An order waiving payment of penalty, if any.
And for such further order or orders as the Court may deem fit to make in the circumstances.”
The appellants anchored their said motion on notice on the following grounds:
“1. That the Defendants have been preventing the Claimants and their surveyor from having access to the land for the preparation of a dispute plan of the land in dispute.
2. That it was as a result that the Claimants were delayed in filing their Statement of Claim and plan as they wanted to present their case squarely before the Court and not in piece meal.
3. That the Defendants are yet to allow the Claimants to go on the land.
4. That the Defendants are the cause of the Claimants’ lateness in filing their Statement of Claim and front loading their evidence on oath. The application is supported by an affidavit of 14 paragraphs deposed to by Ramoni Babatunde, who is now the 1st Claimant in this suit by virtue of the fact that the name of the deceased original 1st Claimant has been struck out as already stated in the foregoing. There is also a Written Address in support of the Motion also dated and filed the 17th day of January, 2014.”
The respondents, who were the defendants/respondents to the said motion, filed a counter affidavit and a written address in opposition thereto.
After hearing the parties, on the said motion on notice, the trial Court, per Hon. Justice K. B. Olawoyin, rendered a reserved ruling on the 22nd day of October, 2014 whereby certain orders were made including an order dismissing the appellants’ prayer for waiver of payment of penalty. This appeal is against the said ruling.
In the appellants’ brief, filed on 20/05/2019, the following issue was identified for determination:
“Whether, based on the facts of this case, the learned judge was right in his ruling that the rules governing payment of penalty in Court cases are mandatory and not discretionary when payment of penalty could not have arisen at all in the circumstances of this case, having regard to the pending application for the dismissal of the suit pending till 25th September, 2013 yet undisposed of in the case.”
The respondents’ brief was filed on 09/07/2019 but it was deemed as filed on 19/01/2022. The respondents also raised a sole issue which they framed as follows:
“As the learned Judge whose ruling is now on appeal was not the original Judge handling the case, the history of the case before the previous judges who have been handling the case in the past was brought to his attention on pages 172-177 of the record, to enable him know that he has a discretion to be exercised in the case to enable him do substantial justice to the parties.”
The appellants’ arguments are as follows:
“(a) The original order obtained by the Appellant to survey the land which is on pages 24-25 of the record had no clause on its surface for giving an undertaking to pay damages. The order simply stated that what it contained was the substance of his ruling the order ought to have been given an ordinary interpretation and if the ruling of 4th August, 2009 contained any undertaking, it is void as it vitiated the principal or primary order to undertake a survey of the land as is contained in the Ruling of 2nd August, 2009 a Sunday for the ruling. Moreover, the order is not mandatory, see top of page 49 of the record.
See (i) Olanrewaju v. Oyesomi (2014) 236 LRCN 170 at 211ZEE
(ii) Ardo v. Nyako (2014) 237 LRCN 126 at 163 JJ & 164AK – 164ZEE
(iii) Utomudo v. Military Government of Bendel State (2014) 237 LRCN 172 at 208 & 209A.
(a) No ruling was in fact delivered on 2nd August, 2009 which was Sunday as the ruling, the Respondents were relying upon purported to have been delivered on 2nd August, 2009 could not be so. See pages 66 – 72 of the record.
(b) The ruling that was delivered on 4th August, 2009 was not tendered to show that it had an undertaking on it.
(c) The Counter-Affidavit of the Appellants on pages 33-41 of the Record revealed that Appellants were chased out, wounded and prosecuted from going on the land to survey because no undertaking was given by the Appellants.
(d) The Respondents had an Application to dismiss the case still pending in Court unheard before the new rules came into operation in October 2010. See pages 29-41 of the record.
(e) The case came before Hon. Justice Owolabi on 13th June and 4th July, 2013, who said because the case was coming before him for the first time, he would not take the motion for dismissal but said parties should comply with the New rules before the next adjourned date, when respondent said he was yet to be served with Counter-Affidavit to his motion for dismissal of the case. Appellants compiled, not knowing that all was off record. See pages 50-51A of the record for the proceedings of 13th June and 4th July, 2013 aforesaid.
(f) Having complied with the order of Court by filing statement of claim and front-loaded evidence of the Appellants on pages 79-97 of the record, there was no need for the hearing of the Application of 1st February, 2010 for the dismissal of the case. There was, therefore, no need for any regularization of papers filed on 3rd of October, 2013 on pages 104-109 of the record.
(g) On 18th November, 2013, when the case came up before Hon. Justice Ishola, the Respondents’ Counsel insisted that the papers dated 30th September, 2013 and filed on 3rd of October, 2013 were filed out of time, and that Appellants must bring applications for regularization, which compelled the Appellants to file the applications dated 4th December, 2013 and 17th January, 2014 respectively. See pages 98-109 of record.
(h) It is to be noted that the facts of the motion of 18th February 2010 brought by the Respondents for the dismissal of the case on pages 29-72 of the record yet to be heard and on which further further-affidavit was filed on 29th September, 2013 that was used in writing the Rulings upon which this appeal was based.
(i) It is to be noted that it was the pendency of this motion, which was intended to terminate the case unheard that caused the inability of the Appellants to take any step under the New Rules of Court, as the motion was not yet ripe for hearing until 25th of September 2013. See pages 52-72 of the record.
(j) This was the reason which prompted Hon. Justice Owolabi to order that Appellants should file their Statement of Claim and frontload their evidence which was off record. See page 51A of the record.
This order of Hon. Justice Owolabi was lawfully carried out, since the motion filed on 18th February, 2010 at page 29 of the record was not ripe for hearing until when further-affidavit on the motion on pages 52-72 of the record was filed in Court on 29th of September, 2013.
(l) There was therefore no way the Appellants could have complied with the New rules until this motion was disposed off, hence the order of Honourable Justice Owolabi to comply with the new rules, which was done within the time prescribed and which was filed on 3rd October, 2013. See pages 73-97 of the record.
There was therefore no justification for any order of regularization asked for on page 97A of the record, since the respondents did not carry out the regularization of their motion under the New Rules until 25th of September, 2013 as shown on pages 52-72 of the record.
No action can be taken on the case by the Appellant until this motion is disposed of.
Payment of penalty could not have therefore arisen in the circumstances of the case and the question of mandatory nature of the penalty does not arise.”
In urging the Court to resolve this issue in their favour, learned counsel for the appellants referred the Court to the cases of Mfa & Anor v. Inougha (2014) 230 LRCN 89 at 112 and Azuh v. UBA PLC (2014) 237 LRCN 74 at 114 and submitted that:
“…the rules of Court are meant to promote quick and just dispensation of disputes brought to Court. The rules are not intended to punish. Where the rules appear not to be directed to doing that purpose, they should be brushed aside and the Court should use its discretion judicially and judiciously for the purpose of solving the problems brought to Court.”
On the other side, learned counsel for the respondents argued that by the use of the word “shall” in Order 44 Rule 4 of the Oyo State High Court (Civil Procedure) Rules, 2010 “it does not allow the waiver of payment of penalty”. On the meaning of the word “shall”, learned counsel for the respondents referred the Court to the cases of Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411 and Bamayi v. A.G. Federation (2001) 7 SC (Pt. II) 62.
After stating the facts of the matter culminating in the ruling appealed, learned counsel for the respondents argued that the lower Court was right in its decision.
The ruling of the trial Court spans pages 178 to 201 of the record of appeal and it is a very elaborate ruling of 23 pages. In it, the learned trial Court stated the facts of the case and they including the following:
1. The case was initially before Hon. Justice E. C. A. Lufadeju (now retired) who delivered a ruling on Tuesday, the 4th day of August, 2009 but which ruling was wrongly stated to have been delivered on “Tuesday, the 2nd day of August, 2009” – but the records of the Court showed the ruling was actually “delivered on the 4th day of August, 2009”, which was tendered as Exhibit “A” by the respondents.
2. That “at page 6 thereof (the last paragraph) up to page 7, Honourable Justice E. C. A. Lufadeju stated thus:
“However with the situation on hand, it is imperative for the Plaintiffs to carry out the survey of the land in dispute. But they have failed to give an undertaking as to damages.
Plaintiffs are hereby allowed to give an undertaking within one week from now. See the case of Adeyemi Works Const. Ltd vs. Omolehin (2004) 6 NWLR (Part 870) 650.
The Plaintiffs are allowed to survey the land in dispute with minimum disturbance to the Defendants’ Cocoa trees. The Defendants must not disturb the Plaintiffs’ Surveyor whilst he is surveying the land in dispute. The Defendants must not carry out the sale of any part of the land in dispute whilst taking care of their Cocoa trees as they have denied doing so in their Counter affidavit.
This shall be the ruling of this Court.
SIGNED
E.C.A. LUFADEJU – JUDGE
4/8/2009”
3. That the drawn-up order extracted from the ruling of 04/08/2009 tendered by the respondents “does not contain that part of the order made in the Court’s ruling of 4/8/2009 that the Plaintiffs/Applicants should give an undertaking to pay damages within one week from the date of the ruling”.
4. That the appellants were not correct in their contention that the drawn-up order superseded the actual ruling of the Court.
5. That the appellants, who were represented by their counsel in Court on 04/08/2009 when the ruling was delivered, were “aware all along that they were ordered to give an undertaking to pay damages but chose to ignore and disobey same in their own wisdom”.
6. That the respondents’ motion on notice for the dismissal of the appellants’ case did not prevent the appellants from filing their statement of claim.
The above findings by the trial Court, having regard to facts and circumstances of this case, cannot be faulted. In the first place, it is settled law that a Court can take judicial notice of its records, including orders or decisions made or taken by a former Judge or former Judges who handled the case. See Nigeria National Petroleum Corporation v. S. A. Adesina Tijani (2007) All FWLR (Pt. 344) 138.
Secondly, it is trite law that the enrolment order of a ruling or judgment does not supersede the content of the actual ruling or judgment. See Akin Akinyemi v. Professor Mojisola A. O. Soyanwo & Anor (2006) All FWLR (Pt. 335) 58.
Thirdly, a motion on notice for an action or a case to be dismissed, such as the respondents’ motion on notice file on 18/02/2010 asking for the dismissal appellants’ case for want of diligent prosecution, does not operate as a stay of necessary actions or steps in the case or stay of proceedings in the case. The respondents’ said motion on notice for the dismissal of the appellants’ case for lack of diligent prosecution did not prevent the appellants from taking all steps necessary for the due prosecution of their case.
Now Order 44 Rule 4 of the High Court of Oyo State (Civil Procedure) Rule, 2010 provides as follows:
“4 The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Judge or under these rules, shall pay to the Court an additional fee of N100,00 (one hundred naira) for each day of such default at the time of compliance.”
The above provisions are clear, plain, straightforward and unambiguous. And the law is settled that where the words used in a legislation are clear, plain and unambiguous they (the words) should give their ordinary, natural and grammatical meaning unless by doing so an absurdity would result. See Josiah Ayodele Adetayo & 2 Ors v. Kunle Ademola & 2 Ors (2010) 15 NWLR (Pt. 1215) 169.
I wish to restate the law that, depending on the very context in which it is used, “The word “shall” in an enactment does not always connote mandatoriness. It often connotes permissiveness or directory”, – per Muhammad, JSC in the case of Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt. 1056) 118 at 187.
See also the cases of Francis Adesegun Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126, Alhaji Oloyede Ishola v. Memudu Ajiboye (1994) 6 NWLR (Pt. 352) 506, University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376, Hope Chinyelu Okpala v. The Director-General of Commission for Museums & Monuments (1996) 4 NWLR (Pt. 444) 585 and Dr. Tunde Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.
In this case, the word “shall” in the proviso to Order 44 Rule 4 of the High Court of Oyo State (Civil Procedure) Rules, 2010, clearly and obviously connotes mandatoriness of payment of an additional fee of N100.00 (One hundred naira) for each day of default of compliance with any order of the Court for doing any act or thing.
The lower Court, therefore, exercised its discretion rightly in refusing the appellants’ prayer for waiver.
I need to emphasize the settled principle of law that where a procedure for doing a thing has been statutorily provided, no other method of doing that thing is acceptable. See C. C. B. (Nig) PLC v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 201) 528 and Dr. Arthur Agwucha Nwankwo & 2 Ors v. Alhaji Umaru Yar’Adua & 40 Ors (2010) 12 NWLR (Pt. 1209) 518 at 559.
Another relevant principle of law is that a statutory provision cannot be waived. See General Mohammadu Buhari & Anor v. Alhaji Mohammed Dikko Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446; (2003) 6 SCNJ 344, Attorney General, Adamawa State v. Mr. Jonah Jauro Ware & Ors (2006) All FWLR (Pt. 306) 860 at 871 and Chief Diepreye Alamieyeseigha v. The Federal Republic of Nigeria (2006) 16 NWLR (Pt. 1004) 1 at 58.
To be brief, the trial Court was right in refusing to grant the appellants’ prayer for waiver and to have made all the consequential orders it made in its ruling.
The lone issue in this appeal is hereby resolved against the appellants and in favour of the respondents.
Consequently, this appeal lacks merit and it is hereby dismissed.
The decisions of the trial Court contained in the ruling in Suit No. I/539/2007 delivered on the 22nd day of October, 2014, per Hon. Justice K. B. Olawoyin, are hereby upheld.
The sum of N100,000.00 (One Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondents and against the appellants.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the leading judgment delivered by my learned brother – MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. My Lord in a succinct and concise manner resolved the issues donated for resolution in the appeal and I agree that mandatory words in the Rules of Court are not sacrosanct and are applied permissively, allowing for their discretionary application by the Court in the interest of justice. See the case of OBI VS. INEC (2008) 1-2 SC 23 SC and KATTO VS. CBN (1991) 9 NWLR (pt. 214) 126. Therefore, the lower Court rightly exercised its discretion by refusing to grant the Appellant’s prayer to waive the proviso to Order 44 Rule of the High Court of Oyo State (Civil Procedure) Rule, 2010.
Therefore, I adopt the resolution in the leading judgment as mine and abide by the orders made therein.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I agree with the reasoning and the conclusion reached therein.
In this appeal, the Appellants commenced an action as Claimants against the Respondents as Defendants vide a Writ of Summons filed on 9th of August, 2007. They sought a declaration of title to a parcel of land situate around Akinjole Village, Egbeda Local Government Area, Oyo State and subsequently, applied for an order to survey the disputed land which was granted. They were to give an undertaking as to damages. They failed to do so and thereafter abandoned the action for about six years before bringing an application for extension of time to file their Statement of Claim and an order deeming same as properly filed. They further sought an order to waive payment of penalty for late filing of their Statement of Claim.
The lower Court granted the order extending time to file the Statement of Claim but refused that for waiver of payment of penalty and the deeming order.
It is trite that the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction is to obey it. This is so even where the person affected by the order believes it to be irregular. The order must be obeyed to the letter until set aside. Failure to obey a valid and existing order of Court is tantamount to contempt. See ODU VS. JOLAOSO (2005) 16 NWLR (PT. 950) 178, MOBIL OIL NIGERIA LIMITED VS. ASSAN (1995) 8 NWLR (PT. 412) 129.
The Appellants who refused to comply with the order of the lower Court to make an undertaking to pay damages are contemnors. A person who has flouted a positive order of a Court of competent jurisdiction cannot turn round to seek a discretionary remedy from the Court while still in contempt. In other words, a person who is in contempt of a subsisting order of Court is not entitled to the exercise of the Court’s discretion in his favour. See EKPEMUPOLO VS. FEDERAL REPUBLIC OF NIGERIA (2019) 11 NWLR (PT. 1684)462, SHUGABA VS. UNION BANK OF NIGERIA PLC (1999) 11 NWLR (PT. 627)459, FIRST AFRICAN TRUST BANK LIMITED VS. EZEGBU (1992) 9 NWLR (PT. 264)132, LAWAL-OSULA VS. LAWAL-OSULA (1995) 3 NWLR (PT. 382)128.
The learned trial Judge was right when he refused to allow the Appellants to invoke the equitable jurisdiction of the Court to dodge payment of penalty.
It is for the above and other reasons ably set out in the leading judgment that I also find this appeal devoid of merit and I accordingly dismiss it. I abide by the consequential orders in the lead judgment including that as to costs.
Appearances:
J. O. A. Ajakaiye, Esq. For Appellant(s)
A. B. Adeyinka, Esq. For Respondent(s)
