BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED V. ATTORNEY-GENERAL OF OGUN STATE & ORS
(2013)LCN/6197(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2013
CA/I/252/10
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED Appellant(s)
AND
1. ATTORNEY-GENERAL OF OGUN STATE
2. INTERNATIONAL TOBACCO COMPANY LIMITED
3. BRITISH AMERICAN TOBACCO PLC
4. BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED Respondent(s)
RATIO
THE PRESUMPTION IN LAW THAT A WRIT OF SUMMONS SIGNED BY A JUDGE IN COMPLIANCE WITH THE RULES OF COURT EXITS
Further, that the presumption in law is that in the face of substantial compliance with steps normally taken when a suit exists, it is presumed that a writ of summons signed by a judge in compliance with the Rules of Court exists, see, JIMOH ADEKOYA ODUBEKO VS. VICTOR OLADIPO FOWLER AND ANOR. (1993) 7 NWLR 637, 655 SC, MAGNUSSON VS. KOIKI (1991) 4 NWLR 119; INTEGRATED RUBBER PRODUCTS (NIGERIA) LTD. VS. IRABOR OVIAWE (1992) 5 NWLR 572; OBIANWANA OGBUANYINYA & ORS VS. OBI OKUDO & ANOR (NO. 2) (1990) 4 NWLR 551. It was also the contention of the learned Senior Counsel that the Appellant did not substantiate the allegation that no original writ of summons was issued, reliance was placed on the cases of N.D.I.C. VS. AKAHALL & SONS CO. LIMITED (2004) 6 NWLR (pt. 869) 245. We were urged to view the inscription of the word “concurrent” on the writ as technical. PER UWA, J.C.A.
WHETHER OR NOT RULES OF COURT MUST BE OBEYED
It is true that Rules of Court are to be obeyed and applied but, they must be interpreted bearing in mind the justice of the case. In this case, the Registrar assessed the writ for the appropriate fees on the claims to be paid, the assessment was, as rightly argued by the learned Senior Counsel on the original writ. PER UWA, J.C.A.
WHETHER OR NOT ASSESSED COPIES OF COURT PROCESSES FILED AT THE REGISTRY ARE THE ORIGINALS
It is trite that assessed copies of processes filed at the Registry are the originals. By all these, it is presumed that all the official acts have been done and the right Form, utilized in respect of the writ, in line with the provisions of Section 150(1) of the Evidence Act which provides as follows:
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
(Underlined mine for emphasis.)
All that was required to be done had been done by the registry, except the inscription of the word “concurrent”. The above provision is clear that once a procedure has been substantially complied with it is enough. In the case of ODUBEKO VS. FOWLER (1993) 7 NWLR (PT. 308) 537 at 655, the apex court in this respect held that:
“In the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the maxim Omnia Praesumuntur Rite esse Acta see I.R.P. (NIG) LTD. V. OVIAWE (1992) 5 NWLR (PT. 243) 572; MAGNUSSON V. KOIKI (1991) 4 NWLR (PT.183) 119 C.A. See also RE RANDLE NELSON & ANOR V. AKOFIRANMI (1962) 1 SC NLR 252; (1962) ALL NLR 130.” PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Judgment): The appeal is against the Ruling of the Ogun State High Court, Abeokuta Judicial Division, delivered on 20th May, 2010 by Olopade, J. (now Chief Judge) in which the lower court dismissed the Appellant’s application (as 1st Defendant) in which the following orders were sought:
(i) “Set aside the issuance and subsequent service, on the Appellant, of the concurrent writ of summons purportedly issued out of the Registry of the lower court on 16th May, 2008, and
(ii) Strike out this Suit (i.e. Suit No. AB/61/2008) by reason of the fact that it was not initiated by due process of law.”
With reference to the concurrent writ of summons at pages 1-3 of the printed records, the Appellant observed that on the face of it, does not state the date on which it was issued, while the copy served on the Appellant had 16th May, 2008 as date of issue, for this reason the date of issue of the concurrent writ of summons was referred to by the Appellant as 16th May, 2008.
The background facts are that the 1st Respondent the Claimant in the lower court was said to have purportedly commenced Suit No. AB/61/2008 against the Appellant and the 2nd, 3rd and 4th Defendants respectively. The 1st Respondent’s claims jointly and severally against the Appellant and the 2nd – 4th Respondents are on pages 104 -108 of the printed records.
The 1st Respondent also filed a motion Ex parte, dated 26th February, 2008 by which he sought the leave of the lower court to issue and serve the originating and other processes which he had filed in the lower court on the Appellant and the 2nd – 4th Respondents, pages 109 – 118 of the records.
The 1st Respondent filed another motion ex parte, dated 23rd April, 2008, in which similar reliefs as those in the earlier motion were sought, pages 119 – 169 of the records.
The Appellant made out that there was no decision in respect of the earlier motion ex parte but that on 15th May, 2008 the lower court granted the reliefs sought in the second motion ex parte dated 23rd April, 2008 and granted the 1st Respondent leave to issue and serve the concurrent writ of summons, the statement of claim and other originating processes on the Appellant and the 2nd – 4th Respondents in the Suit by substituted means, pages 181 – 182 of the records.
The Appellant contended that the 1st Respondent applied for, issued and served upon the Appellant a “Concurrent Writ of Summons to be served out of jurisdiction” and that the concurrent writ purported to be on “Form 3” set out in the Appendix to the High Court of Ogun State (Civil Procedure) Rules, 1987 (hereafter referred to as “the 1987 Rules”), see pages 1 – 3 of the records.
It was the contention of the Appellant that the 1st Respondent only applied to the lower court for leave to issue a concurrent writ of summons and that no application was made to issue an original writ of summons (nor has any original writ of summons ever been issued in this suit) which would form the basis for the valid issuance of a concurrent writ of summons out of the Registry of the lower court.
The writ of summons, statement of claim and the lower court’s enrolment order dated 15th May, 2008, were effected on the Appellant on 2nd March, 2009. The other defendants were said to have been purportedly served by substituted means at various dates; pages 183 – 194 of the records, showing proofs of service on the Appellant and the other defendants.
The Appellant entered a conditional appearance on 2nd April, 2009 by filing a Memorandum of Conditional appearance at the registry of the lower court; pages 194 – 195 of the records, On the same day the Appellant filed a motion in which it sought the following reliefs (as set out by the Appellant in his brief):
(i) “An order setting aside the issuance and consequent service upon the 1st Defendant/Applicant (the Appellant) of the concurrent writ of summons purportedly issued out of the registry of this Honourable Court (the lower court) on 16 May, 2008.
(ii) A consequential order striking out this cause by reason of the fact that it was not initiated by due process of law.”
The grounds for the application were as follows (as appears in the Appellant’s brief):
“(i) The Claimant in this Suit (the 1st Respondent) never applied for the issuance of an original writ of summons out of the Registry of this Honourable Court (the lower court) as required by the provisions of Order 5 Rule 1 of the High Court of Ogun State (Civil Procedure) rules 1987.
(ii) There was no original writ of summons issued out of the Registry of this Honourable Court in respect of this suit.
(iii) The Claimant only applied to this Honourable Court for leave to issue a concurrent writ of summons out of the Registry of this Honourable Court.
(iv) The said concurrent writ of summons was issued out of the Registry of this Honourable Court without the issuance of an original writ of summons.
(v) By reason of grounds (i) – (iv) above, the purported issuance and consequent service of a concurrent writ of summons upon the 1st Defendant/Applicant in this cause, is a direct violation of the mandatory provisions of the High Court of Ogun State (Civil Procedure) Rules, 1987 and thereby (is) liable to be set aside.”
See, pages 196 – 208 of the records.
The 2nd – 4th Respondents (the 2nd – 4th Defendants in the lower court) filed separate notices of preliminary objection challenging the issuance and service of the concurrent writ of summons on them.
In the consolidated Ruling of the lower court delivered on 20th May, 2010, upon the Appellant’s motion of 2nd June, 2009 and the other defendants’ preliminary objections, the lower court dismissed the Appellant’s motion, in consequence refused to set aside the issuance and service of the concurrent writ of summons on the Appellant, see pages 302-344 of the records.
The Appellant was aggrieved by the decision and appealed against same vide its Notice of Appeal dated and filed on 3rd June, 2010, pages 345 – 350 of the records. It was the contention of the Appellant’s Counsel that the lower court erred in holding that the issuance of the concurrent writ of summons dated 16th May, 2008 and its service on the Appellant was valid and proper. The order dismissing the motion of 2nd June, 2009 was challenged.
From the two grounds contained in the Notice of Appeal, a sole issue was distilled for the determination of this appeal. That is:
“Whether the lower court was right in holding, as it did, that Suit No. AB/61/2008 was validly or completely commenced against the Appellant by the issuance of a concurrent writ of summons in Form 3 (set out in the Appendix to the 1987 Rules) when no original writ of summons was issued?”
On his part, the 1st Respondent also identified a single issue for determination in this appeal. That is:
“The Appellant commenced the action by obtaining the leave of lower court to issue and serve the writ of summons for service out of jurisdiction on the Appellant. The lower court in accordance with due process prescribed by the Rules of Court accordingly issued the writ of summons in Form 3. Does the inscription of the word “concurrent” on the writ in form 3 vitiate proceedings?”
When the appeal was heard, there was an application dated and filed on 2/7/12 that the appeal be heard and determined on the Appellant’s and 1st Respondent’s briefs alone. There was no objection from 2nd – 4th Respondents, the application was granted and the appeal was heard on the Appellant’s and 1st Respondent’s briefs alone.
In arguing the appeal, the learned counsel to the Appellant Adeniyi Adegbonmire Esq. appearing with Peters O. Agboola Esq. and Joshua Abe Esq. adopted and relied on the Appellant’s brief dated and filed on 21/12/10, deemed filed and served on 21/3/11 as well as a reply brief dated 29/6/72 filed on 2/7/12 in urging us to allow the appeal and grant the reliefs set out in paragraph 4 of the Notice of Appeal.
In his brief of argument, it was submitted that the relevant rules of procedure of the lower court were the 1987 (Civil Procedure) Rules of the Ogun State High Court, as at the time the suit was purportedly commenced, although the Appellant’s motion of 2/6/09 was brought pursuant to the 2008 Rules, applicable as at the time the motion was filed.
It was submitted that, the issuance of a writ of summons is mandatory for the commencement of a suit pursuant to Order 5 Rule 1 of the 1987 Rules, and that on 26th February, 2008, when the 1st Respondent applied to the Registry of the lower court for the issuance of a writ of summons in this Suit the proper (and mandatory) way to initiate an action vide a Writ of Summons was for the 1st Respondent to apply specifically for a “writ of summons” by completing Form 1 (or Form 2, 3, 4) and paying the appropriate filing fees, reliance was placed on the cases of U.B.A. PLC VS. MODE (NIG.) LTD. (2000) 1 NWLR (PART 640) 270 CA at 280 Para. C-F, FADA VS. NAOMI (2002) 4 NWLR (PT. 757) 318 CA at 333-334 Para. F-B, LAWAL VS. OKE (2001) 7 NWLR (PT. 711) CA 88 at 109 Para, G.
It was argued that from the records of Court that the 1st Respondent did not apply to the lower court for the issuance of a writ of summons so as to satisfy the requirements of Order 5 Rule 1 of the 1987 Rules, but rather, that the 1st Respondent applied for leave to issue a concurrent writ of summons, as opposed to a writ of summons to be served on the Appellant and the other defendants at various addresses outside the jurisdiction of the lower court.
It was the contention of learned Counsel to the Appellant that it was based on the aforesaid application that the Registrar of the lower court issued a “concurrent writ of summons” for service upon the Appellant and other defendants, all, outside the jurisdiction of the Court.
It was argued that the 1st Respondent did not apply for an original writ of summons of which the concurrent writ served upon the Appellant, was a true copy, reliance was placed on the provisions of Order 5 Rule 13 of the 1987 Rules, which clarified the difference between a “concurrent writ of summons” and an original writ of summons”, see also the case of AJIBOLA VS. SOGEKE (2003) 9 NWLR (PART 826) 494 at 524 Para. G-H; 525 Para. D-H.
It was submitted that the lower court admitted that a concurrent writ of summons cannot be issued without an original writ having first been issued but, erroneously held that “the original writ herein is the first copy of Form 3 filed by the Plaintiff”. It was contended that the first copy referred to was also marked “concurrent”, see pages 333 – 334 of the records. It was submitted that, this is in conflict with the provisions of the rules of the lower court in respect of the issuance of a writ of summons and that the lower court fell into a serious error when he found that the original herein is the first copy of the Form 3 filed by the plaintiff irrespective of the fact that it was marked “concurrent writ”.
It was argued that the lower court did not give the proper meaning and effect to Order 5 Rule 13(2).
It was submitted that Form 1 (the general Form of a writ of summons) is for commencement of an action against a defendant who is resident within the jurisdiction of the court while Form 3 is for the commencement of an action against a defendant that resides outside the jurisdiction of the court. Further, that from a combined reading of the provisions of Order 5 Rules 1, 8 and 13(2) and a perusal of Forms 1 and 3 in the appendix to the 1987 Rules, a concurrent writ can only be deployed where some of the defendants are within the jurisdiction of the court and some are not.
It was argued that in the present case all the defendants before the lower court reside outside the jurisdiction of the court, therefore a concurrent writ was inappropriate in the circumstances of the suit. Further, that the finding by the lower court that “the original writ herein is the first copy of Form 3 filed by the plaintiff” where the first copy is also marked “concurrent” would lead to absurdity as it would mean that a concurrent writ would be the basis for the issuance of another concurrent writ, It was submitted that there must be an original writ before a concurrent writ can be validly issued, reliance was once again placed on the provisions of Order 5 rule 13(1), (2) and (3). It was contended that the 1st Respondent did not apply for an original writ and the Registry of the lower court did not issue any.
While relying on the case of MACFOY VS. UNITED AFRICAN COMPANY LIMITED (1962) A.C. 152 at 162, it was argued that the suit in the lower court commenced by the 1st Respondent using a “concurrent writ of summons” where no original writ of summons was issued, was incompetent and that the lower court ought not to have validated same, served on the Appellant. It was submitted that the suit against the Appellant should be set aside for want of jurisdiction for the reason of the issuance and service of the invalid concurrent writ of summons. See, MADUKOLU VS. NKEMDILIM (1962) ANLR (PT. 2) P. 581, MACFRY VS. U.A.C. LIMITED (supra) at 162, EJEFOR. VS. and AFRIC MINING CO. LTD. VS. N.I.D.B. LTD. (2000) 2 NWLR (PT. 646) 618 at 629, Para. C-D amongst others.
Further, it was submitted that the question of the validity of a writ is fundamental and not a mere irregularity, see KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 at 394 Paras. B-G.
In conclusion, it was argued that the 1st Respondent conceded that there was no original writ of summons, and that it should be viewed as an irregularity, pages 24-28 of the 1st Respondent’s brief. It was further submitted that in the entire records there is no original writ. We were urged to allow the appeal.
On the part of the 1st Respondent, Professor Yemi Osibanjo (SAN) appearing with Babatunde Irukera, Dapo Akinosun, Mrs. V. O. M. Alonge, Ms. Funmilola Mesaiyete, Bashir Ramoni Esq. and Seun Lawal adopted and relied upon the 1st Respondent’s brief dated 6/5/11, filed on 9/5/11 deemed filed on 20/6/11.
The learned Senior Counsel in his argument reviewed the provisions of Order 5 Rule 8(1) of the Rules of the lower court in arguing that the Appellant did not dispute the fact that the originating process issued for service was not in Form 3 and that what was served was signed and dated by the Registrar of the lower court.
It was the submission of the learned Senior Counsel to the 1st Respondent that the inclusion of the word “concurrent” does not invalidate Form 3 as a writ or for the presumption that there was no original writ. It was argued that in the definitions given of a concurrent writ and original writ by the Appellant, that there was no indication that the inscription of the word “concurrent” on the original copy vitiates the writ.
On reliance on the provisions of Section 150(1) of the Evidence Act it was submitted that assessed copies of processes filed at the registry are the originals of the processes. Further, that the presumption in law is that in the face of substantial compliance with steps normally taken when a suit exists, it is presumed that a writ of summons signed by a judge in compliance with the Rules of Court exists, see, JIMOH ADEKOYA ODUBEKO VS. VICTOR OLADIPO FOWLER AND ANOR. (1993) 7 NWLR 637, 655 SC, MAGNUSSON VS. KOIKI (1991) 4 NWLR 119; INTEGRATED RUBBER PRODUCTS (NIGERIA) LTD. VS. IRABOR OVIAWE (1992) 5 NWLR 572; OBIANWANA OGBUANYINYA & ORS VS. OBI OKUDO & ANOR (NO. 2) (1990) 4 NWLR 551. It was also the contention of the learned Senior Counsel that the Appellant did not substantiate the allegation that no original writ of summons was issued, reliance was placed on the cases of N.D.I.C. VS. AKAHALL & SONS CO. LIMITED (2004) 6 NWLR (pt. 869) 245. We were urged to view the inscription of the word “concurrent” on the writ as technical.
It was argued that, the endorsement did not occasion any prejudice on the Appellant, see, FAMFA OIL LIMITED VS. A-G FEDERATION (2003) 18 NWLR (PT. 852) 453; TEXACO (NIG.) PLC VS. LUKOKO (1997) 6 NWLR (PT. 501) 651; ANATOGU VS. ANATOGU (1997) 9 NWLR (PT. 519) 50 and BBN LTD. vs. OLAYIWOLA (2005) 3 NWLR (PT. 912) 434. Further, that the provisions of Order 5 Rule 1 of the 1987 Rules was complied with and that the required fees had been paid. We were urged to dismiss the appeal.
In the Appellant’s reply brief, as preliminary points in response to the arguments of the learned Senior Counsel to the 1st Respondent, the learned Counsel refuted the contention of the learned Senior Counsel that the writ was faulted to delay the hearing of the substantive matter in the lower court.
The sole issue formulated by the learned Senior Counsel to the 1st Respondent argued under sub-headings was faulted based on which we were urged to strike out the 1st Respondent’s brief, while relying on the case of OKONOBOR VS. EDEGBE & SONS TRANSCO. LTD. (2010) 2-3 SC (PT.II) 1 at 8 lines 26-32.
In reaction to the arguments of the learned Senior Counsel to the 1st Respondent, the learned Counsel reviewed the meaning of provisions of Order 5 Rule 13 of the 1987 Rules. It was argued that from the various definitions of a concurrent writ and a review of the records of court, what was issued on 26th February, 2008, is a concurrent writ of summons and that the case file did not contain an original writ. The learned Counsel submitted that the crux of the preliminary objection in the lower court and this appeal is the absence of an ‘original writ of summons’ and whether a concurrent writ issued could be valid where there is no original writ which vitiates the entire proceedings, see, KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 at 394 para. B-G, DREXEL ENERGY & NATURAL RESOURCES LTD. VS. TRANS INTERNATIONAL BANK LTD. (supra) PAGES 35-36, to the effect that where a writ of summons is irregularly issued, it is a nullity and the Court cannot cure the defect.
Further, that by the inclusion of the inscription “concurrent” it should be seen as such and not read as or interpreted as an original writ, as doing so would breach Section 132 of the Evidence Act, CAP E14 Laws of the Federation of Nigeria, see, UBN LTD. VS. NWAOKOLO (1995) 6 NWLR (PT. 400) 127 at 146 Paras. D-E. Also, that the failure to file a ‘writ of summons’ is fundamental and goes to the root of the entire case and vitiates the action, which cannot be regarded as technical, see, DREXEL ENERGY NATURAL RESOURCES LTD. VS. TRANS INTERNATIONAL BANK LTD. (Supra). While relying on ESSIEN VS. ESSIEN (2009) 9 NWLR (PT. 1146) 306 at 334 Para. H, it was submitted that Section 150(1) of the Evidence Act does not apply in this case but rather where the presumption of regularity would only be invoked where an official or judicial act is shown to have been done in a manner substantially regular. It was contended that the failure to apply for the issuance of the “original writ” is the responsibility of the 1st Respondent and not that of the Court or Registry, thus Section 150(1) could not be utilized by the 1st Respondent to validate his failure and omission.
It was further submitted that the presumption of regularity cannot apply in the present circumstances. Where the 1st Respondent had not taken the necessary steps required by law for the issuance of an original writ. The case of NDIC VS. AKAHALL (supra) relied upon by the 1st Respondent was distinguished from the present case. All the cases relied upon along this line were argued not to be applicable. The learned Counsel to the Appellant reviewed the cases cited and relied upon by the learned Senior Counsel to the 1st Respondent in his brief and also reviewed the cases he relied on in arguing his appeal in his main brief and cited additional authorities in support of his argument.
We were once again, urged to allow the appeal as the action in the lower court is incompetent, the 1st Respondent having failed to comply with the 1987, Ogun State Rules of Court.
On the preliminary points raised by the learned Senior Counsel that the objections concerning the writ of summons were raised to delay this matter, I am of the humble opinion that parties in a suit are free at any point of the proceedings to challenge the processes filed and or procedure adopted if the party feels truly that the process and or procedure is wrong. Short of this, it would be that such party has conceded a process or procedure that could at the end be properly held to be improper by the Court. For the development of the law, it is proper to air ones views as Counsel and test what Counsel feels is improper, and leave the decision for the appellate court. It is only advisable that all the faulting could be left and raised at the end of the substantive case, should it go against the objector.
On the issue of the learned Senior Counsel formulating a sole issue argued under subheads, which was argued to be incompetent, I am afraid the learned Counsel to the Appellant also fell into the ‘error’ which he complained about, in that in his reply brief where he faulted the subheads under which the sole issue raised by the 1st Respondent was argued, he also made his submissions under subheads. The objection to this mode of argument is not tenable. There is nothing wrong with the learned Senior Counsel to the 1st Respondent arguing his issue the way he did. A sole issue was raised and argued on behalf of the 1st Respondent, same cannot be faulted.
On the reply brief, it is noted that the 1st Respondent’s brief contained fifteen (15) pages, in response to the Appellant’s brief which contained twenty-five (25) pages, when paged, while the reply brief contained thirty-one (31) pages. The essence of a reply brief is to answer or clarify new points that may have been raised by the Respondent not to reargue and highlight what has already been argued in the Appellant’s and Respondent’s briefs. In this case, the authorities cited and relied upon by both parties in the main briefs were reviewed and analysed. The arguments were recapped. It was not necessary.
It is apt at this juncture to reproduce relevant Sections of the Ogun State High Court (Civil Procedure) Rules, 1987 for clarity.
Order 5 Rule 1 of the 1987 Rules provides as follows:
“A Writ of Summons shall be issued by the Registrar, or other officer of the Court empowered to issue summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in the Appendix to these Rules but the Registrar or other officer as aforesaid, where the application for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued. ”
While Order 5 Rule 8(1) of the Rules provides that:
“Every Writ shall be in Forms 1, 2, 3 or 4 or Forms to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.”
Order 15 Rule 13 of the 1987 Rules provides that:
“(1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid.
(2) Without prejudice to the generality of the provisions of sub-rule (1), a writ for service within the jurisdiction may be issued as a concurrent writ with one which, or notice of which, is to be served out of the jurisdiction; and a writ which or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writs are issued.”
From the various definitions of a concurrent writ, there is no doubt that it is not the same as an original writ, but a true copy of the latter.
It is usually issued after the issuance of an original writ; the parties are agreed on what an original writ is and a concurrent writ and when each is usually issued. The writs in this action were to be issued on Form 3 as they were all to be served outside the jurisdiction of the court. From the records of court, page 180 of the printed records, the 1st Respondent sought and was granted leave to issue the writ in Form 3 on all the defendants on 15th May, 2008 as provided in the rules of the lower court. The Registrar signed the writ served in Form 3 (as required under the Rules for a proper commencement of action before the lower court) after assessment, an original copy was retained in the court’s case file. In the present case, the Appellant has not made out that the originating process served on it was not in Form 3. The required leave was obtained; the Form was dated and signed by the Registrar of the lower court. All these requirements as provided by the Rules of 1987 were met. The Appellant’s only grouse in this appeal is that the word “concurrent” was endorsed on the original assessed copy of the writ that was retained in the lower court’s file. For this reason the learned Counsel to the Appellant has viewed the file copy as a copy of the original, that is: as a concurrent writ, and alleged that there is therefore no original writ, from which the one marked concurrent was made. It is clear and agreed that no Form 1 was issued since all the defendants are resident outside the jurisdiction of the court, same can only be used for service within jurisdiction.
The issuance of Form 3 on all the defendants was with compliance with the required Rules of Ogun State High Court. The question that has arisen is: does the mark “concurrent” on the original writ of summons imply that there was no original writ of summons? From the clear wordings of Order 5 Rule 3(3) of the Rules it is clear that “a concurrent writ is a true copy of the original writ with such differences only (it any) as are necessary having regard to the purpose for which the writ is issued”. A concurrent writ therefore operates or serves the same purpose as an original writ. I am in agreement with the argument of the learned Senior Counsel that the inclusion of the word “concurrent” on a writ would not vitiate such writ.
It is true that Rules of Court are to be obeyed and applied but, they must be interpreted bearing in mind the justice of the case. In this case, the Registrar assessed the writ for the appropriate fees on the claims to be paid, the assessment was, as rightly argued by the learned Senior Counsel on the original writ. It is trite that assessed copies of processes filed at the Registry are the originals. By all these, it is presumed that all the official acts have been done and the right Form, utilized in respect of the writ, in line with the provisions of Section 150(1) of the Evidence Act which provides as follows:
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
(Underlined mine for emphasis.)
All that was required to be done had been done by the registry, except the inscription of the word “concurrent”. The above provision is clear that once a procedure has been substantially complied with it is enough. In the case of ODUBEKO VS. FOWLER (1993) 7 NWLR (PT. 308) 537 at 655, the apex court in this respect held that:
“In the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the maxim Omnia Praesumuntur Rite esse Acta see I.R.P. (NIG) LTD. V. OVIAWE (1992) 5 NWLR (PT. 243) 572; MAGNUSSON V. KOIKI (1991) 4 NWLR (PT.183) 119 C.A. See also RE RANDLE NELSON & ANOR V. AKOFIRANMI (1962) 1 SC NLR 252; (1962) ALL NLR 130.”
In the face of substantial compliance with the steps required to be taken when a suit exists, or to initiate an action, it is presumed that the original writ filed is what was assessed for payment in conformity with Order 5 Rule 13(1) of the 1987 Rules of Ogun State, and that was what was paid for, in line with the accepted practice that it is originals of the processes that are assessed for payment in the Registry, at the filing point.
The Appellant has not established that what was assessed were not the originals, all it has done is to allege that it had the inscription “concurrent” on it, which has not been denied by the 1st Respondent, no doubt it had the mark.
The case of N.D.I.C. VS. AKAHALL & SONS CO. LIMITED (2004) (supra) relied upon by the learned Senior Counsel to the 1st Respondent is applicable where no writ was issued after the applicant has done all that he was required to do on his part to initiate the action. Once a prospective plaintiff has properly made his claim as required by law, delivered same to the Registry for assessment of the fee payable and such fee is paid, his responsibility ceases. The issuance is left for the Registry and its staff whose domestic affairs it is, to see to its issuance.
A Plaintiff in the interest of justice must not be penalised for the error or mistake of the registry and its staff in connection with such internal matters, especially where no miscarriage of justice has been shown to have been occasioned, as in this case.
In the instant case, the 1st Respondent was not shown to have been the one that endorsed the writ with the word “concurrent’, the Form 3 and its endorsement or otherwise, it is the duty of the Registry and its staff to see that the Form 3 that was assessed and paid for was properly and not erroneously endorsed. The 1st Respondent had no role to play in this respect and must not be punished for such act or omission. See, ALAWODE V. SEMOH (1959) SC NLR 91. This Court would not take a stand that would be prejudicial to a party on the basis of an act done or omitted to be done by another, other than the litigant. It is the duty of the Registrar of the trial court to endorse a Notice where appropriate.
The 1st Respondent has admitted the endorsement on the writ but urged that it be viewed as a slip or error in the procedure, whereas the Appellant has urged that it should vitiate the entire process. The Appellant on his part has not shown that the procedural slip would be prejudicial to his case for this Court to declare the originating process a nullity by the inscription of the word “concurrent” on the writ. The inscription did not affect the content no prejudice or harm has been established by the Appellant by the inscription.
In the present case, the error is a curable irregularity which did not render the writ a nullity, it could be easily rectified, simply by deleting the word “concurrent” if it is seen as offensive on the writ. In compliance with Order 5 Rule 1 of the 1987 Rules, the writ contained all the requirements of the Rules; there is no complaint that there was any deficiency.
The Coutts have shifted from the narrow technical approach to justice which bedevilled earlier decisions of courts but now there is stress on substantial justice. In my humble view the endorsement of the word “concurrent” on the original writ does not make it not an original, and does not vitiate the writ. The Courts are enjoined not to be tied down by technicalities especially where no miscarriage of justice has been occasioned. The crux of the appeal is clear; this Court would ignore what I view as a mere technicality in order to do substantial justice. In this case the fact that the Registrar erroneously endorsed the word “concurrent” on the original writ is a technicality that should not be allowed to defeat the cause of justice. See, CONSORTIUM M. C. VS. NEPA (1992) 6 NWLR (PT. 246) 132; FALOBI V. FALOBI (1976) 1 NMLR 169; BELLO Vs. A-G, OYO STATE (1986) 6 NWLR (PT.45) 828; OKONJO VS. ODJE (1985) 10 SC 257.
It is noteworthy that rules of procedure are to guide orderly and systematic presentation of a cause, it is also backed up by the Constitution of our land but, rules of procedure are not meant to be master of the law or the Courts enslaved by it. In FAMFA OIL LTD. VS. A-G. FEDERATION (2003) 18 NWLR 453, the Apex Court, His Lordship, Belgore JSC (as he then was) at P. 267, para. H held thus:
“A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.”
His Lordship, Mohammed, JSC in the same case at P. 469 Paras. B-F held that:
“It is wrong of a court to punish a party for a mistake committed, not by the party, but by the registry of the court. The Court of Appeal committed an error in trying to distinguish the decision of this Court in SAUDE V. ABDULLAHI (1989) 4 NWLR (pt. 116) 382, 1989 3 NSCC 177 from the case at hand…
A breach of the rule of practice can only render a proceeding an irregularity and not a nullity.
What happened in the Registry was a technical error and should not be a ground for nullifying proceedings. Where the fads are glaringly clear the court should ignore mere technicalities in order to do substantial justice to the case.
singleton L. JL, commenting on a technical issue in the case of FINNEGAN V. CEMENTATION CO. LTD. (1953) 1 QB 688 AT 699 observed:
“… these technicalities are a blot upon the administration of the law, and everyone except the successful party dislikes them. They decrease in number as the years go on, and I wish that I could see a way round this one.””
Similarly, His Lordship Iguh JSC at P. 471 para. B-C, was of the same opinion and held that:
“The fact that it was the registrar who erroneously signed the originating summons instead of the Judge did not constitute an incurable irregularity and did not render the process a nullity as the originating summons could have been rectified quite easily at such initial stage of the proceedings by the judge signing the same as required by the rules.”
Finally, His Lordship Edozie JSC, at p. 476, para. G-H held thus:
“Any non-compliance with any 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. NIGERIA CONSTRUCTION CO. LTD. & ORS (1991) 6 NWLR (PT. 199) 501 at 539. It is inconceivable that in the circumstances of this case there has been a denial of fair hearing, or that any miscarriage of justice has resulted or occasioned to the respondent.”
The mark of “concurrent” on the writ is a mere irregularity. See, also the case of TEXACO (NIG.) PLC V. LUKOKO (1997) (supra).
An irregularity is not enough to nullify the proceedings as urged by the Appellant. As I said earlier in this judgment the error or mistake by the inscription on the writ is not fatal but is a technical mistake or irregularity which could be overlooked or corrected by deleting the inscription, either way no harm has been or would be done to the other party. The proceeding cannot be struck out for this reason alone. It would defeat the justice of the entire case which is what is important.
The Appellant’s quarrel is that the original writ in this case which is the first copy of Form 3 filed by the then Plaintiff was also marked “concurrent” arguing that a concurrent writ was utilized in issuing another concurrent writ, thus overlooking the fact that the first copy was inscribed with the word “concurrent” in error by the registry, which in my view did not make the first copy not an original writ from which the “concurrent” writs would be or were made from. In my humble view, the learned trial judge’s finding in its Ruling, at pages 333-334 of the printed records cannot be faulted. The lower court held thus:
“Yes, the writ filed on 22/05/05 is marked concurrent writ. Does this mean because it is so marked, it is not an original Writ?
Original of a Writ is, the first copy; that from which another is copied or initiated. Therefore the original writ herein is the first copy of the Form 3 filed by the Plaintiff It means nothing more than that considering the provisions of these Rules and the Forms in the Appendix thereto.”
The above finding is unassailable. The Appellant’s challenge is as to form rather than substance. It is technical.
In the final analysis, I am of the view that the Courts have moved away from over adherence to technicality and are prone to doing substantial justice where doing so as in this case has not occasioned any miscarriage of justice on the other party. I hold that the appeal is without merit. I dismiss same. I affirm the decision of the lower court delivered on 20th May, 2010 by O. O. Olopade, J. of the Ogun State High Court, in Suit No. AB/61/2008. Parties to bear their respective costs.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Uwa, JCA and I too hereby dismiss the appeal as lacking in merit.
Order as to cost is as made in the lead Judgment.
ADAMU JAURO, J.C.A.: I have read in advance the judgment just delivered by my learned brother, C.N. Uwa, J.C.A. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is lacking in merit. I adopt the reasoning and conclusion as mine and hereby dismiss the appeal.
The ruling of the Ogun State High Court delivered on 20th May, 2010 by Hon. Justice O.O. Olopade in Suit No. AB/61/2008 is hereby affirmed, I abide by the consequential orders made, including order as to costs.
Appearances
Adeniyi Adegbonmire Esq. with Peters O. Agboola Esq. and Joshua Abe Esq.For Appellant
AND
Prof. Yemi Osibanjo (SAN) with Babatunde Irukera Esq., Dapo Akinosun Esq., Mrs. V.O.M. Alonge, Miss Funmilola Mesaiyete, Bashir Ramoni Esq. and Seun Lawal Esq. for 1st Respondent;
Oluwole Arue for 2nd Respondent;
Fred Onuobia with Fedelis Adewole for the 3rd Respondent;
Mrs. Olufunke Olukoya (SAN) with Perenami Abah (Miss) for the 4th Respondent.For Respondent
