CHIEF MICHAEL CHIEDU V. JOSEPH UTI & ORS
(2012)LCN/5498(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/B/331/2008
RATIO
COURT: WHETHER A JUDGE OF THE HIGH COURT CAN DEROGATE FROM THE CLEAR PROVISIONS OF THE RULES OF THAT COURT
No Judge of the High Court has the competence to derogate from the clear provisions of the Rules of that court made pursuant to clear provisions of the Constitution. PER RAPHAEL CHIKWE AGBO, J.C.A.
PROCEDURE: EFFECT OF A FILED COURT PROCESS UNKNOWN TO LAW
A court process which is filed but not known to law is null and void ab initio. If the court process results in a judgment, ruling or orders, the judgment ruling or order, is also null ab initio – see Mobil Oil unlimited v. Monakpo 18 NWLR (pt. 852) 347. PER RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CHIEF MICHAEL CHIEDU – Appellant(s)
AND
1. JOSEPH UTI
2. DOMINIC OSAI
3. OGBONA OSAI
4. CHUKWUEMEKA OGBOMA
5. OZO CHIGBATA ADIGWE
AND
1. CHIEF EJIME UTOMI
(The Okwabani of Aboh)
2. AUGUSTINE CHALOKWU
(for themselves and on behalf of Umu-Okwe Quarters, Ogwashi-Uku) – Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The parties in this appeal are parties to appeal No. O/M/5/2008 pending at the High Court of Delta State sitting at its Ogwashi-Uku Judicial Division. In the said appeal, the 2nd set of respondents in this appeal is the appellants while the appellant in this appeal is one of the respondents. The appellants in that appeal filed their notice of appeal against a 1952 decision of the District Officer, Asaba Division on 3/6/2008. On 19th June 2008 they filed a motion at the Delta State High Court, Ogwashi-Uku Judicial Division praying the court for –
“an order directing a departure from the Rules of this Honourable Court to allow this appeal to be heard on the bundle of papers attached herewith and marked as Exhibits “A” and “B”.”
The motion was hotly contested and in a considered ruling the High Court granted the prayer. Dissatisfied with that ruling, the appellant filed this appeal.
The notice of appeal contained four grounds of appeal to wit:-
(a) Error in law-
The learned trial Judge erred in law by granting the applicants/respondents’ application for a departure from the rules.
Error in law –
(b) The learned trial Judge erred in law in the following passage of his ruling “I am of the position that the line of cases Kowa vs. Musa supra, Clement vs. Iwuanyanwu supra, Fasakin Foods Nig. Ltd. v. Sosanya supra, are not on all fours with these case as they deal more with one court trying to apply rules of another but here the Applicant did not come under any foreign or external rules rather under Order 47 Rule 1 which states “subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice whether such order has been expressly asked for by the person entitled to the benefit of the order or not” and under section 6(6)(a)(b) 1999 constitution. A close perusal of these rule and section indicate that they bestow statutory flavour on the High Court upon which inherent jurisdiction of this court can be exercised to do justice….. It is not true therefore for respondents’ counsel to say there is not statutory basis that grants inherent jurisdiction to enable it make an ancillary or consequential order”.
(c) Error in law –
The learned trial Judge erred in law in the following passage of his ruling “At this point, I also agree with Applicants’ counsel that considering the antecedents of Exhibit ‘A’ excluding the Notice of Appeal, the rules of evidence and technicality are not applicable under customary law setting, being decision of an Area Customary Court…..I also do not agree that because the exhibits did not emanate from the lower court but were certified from existing record of another case in the High Court where exhibits A and B have been presented in this court by respondents and accepted by this court that they can now cry over spilled milk and denying the applicant use of them. The issue of legibility is one for the court to decide as this same court has made a ruling over same document in this court hitherto in Suit No. O/22/2003.
Exhibit ‘B’ is inconsequential as it is only a guide which respondent can question any portion in doubt and respondent can file further documents if needed to do justice to the appeal”.
Error in law –
(d) The learned trial Jude erred in law in the following passage of his ruling” … What in my new is paramount is the fact that exceptional and special circumstance raised in their further affidavit which was not countered or objected to by respondent to effect that (see paragraph D of further and better affidavit dated 17th July, 2008) that he recently approached the Registrar of the Area Customary Court, Ogwashi-Uku to entreat him to expedite action in the compilation of the record of appeal only to be told by the said Registrar that he is yet to locate the proceedings to compile the record of appeal”.
From these grounds of appeal the appellant distilled 3 issues for determination to wit:-
1. Whether the learned trial judge had the jurisdiction to grant an application for departure from the rules to allow 2nd set of respondents use the bundle of documents attached for their appeal against the judgment of the appellate court of the District Officer to the High Court.
2. Whether the bundle of documents compiled by the 2nd set of respondents is competent.
3. Whether the 2nd set of respondents made out a case for the grant of their application.
The 2nd set of respondents filed their respondents’ brief of argument. It is so headed as to be easily misunderstood to be the brief of argument for all the respondents. The 1st set of respondents did not infact file any brief of argument. The 2nd set of respondents adopted the issues as distilled by the appellant.
Issue 1 is distilled from grounds 1 and 2 of the grounds of appeal.
The appellant had argued that the procedure used by the High Court was unknown to the Rules of Court applicable in Delta State and was therefore incompetent and that the High Court acted without jurisdiction. The 2nd set of respondents on the other hand argued that the High Court acted within its inherent powers pursuant to S.6(6)(b) of the 1999 Constitution and Order 47 Rule 1 of the High Court Civil Procedure Rules of Bendel State 1988 applicable to Delta State. Section 274 of the Constitution of the Federal Republic of Nigeria 1999 provides as follows:-
“subject to the provisions of any law made by the House of Assembly of the State, the Chief Judge of the state may make Rules for regulating the practice and procedure of the High Court of the State.”
The extant Rules of the High Court of Delta State is the High Court (Civil procedure) Rules of Bendel State 1988 applicable to Delta State. It has provisions for entertainment of appeals from Magistrates and other inferior courts. It is to be found at Order 44 of the said Rules. It makes specific provisions in Rule 3(1) of Order 44 for the preparation of the record of proceedings. It provides thus –
“44(3)(1) The Registrar of the lower court shall, within three months of the decision appealed from, prepare as many certified copies of the proceedings required for the consideration of the appeal as there are parties on record.”
No Judge of the High Court has the competence to derogate from the clear provisions of the Rules of that court made pursuant to clear provisions of the Constitution.
Order 47(1) of the Bendel State High Court (civil procedure) Rules 1988 relied on by the High Court, Ogwashi-Uku in determining the application reads thus –
“47(1) subject to particular rules, the court may in all causes and matters make an order which it considers necessary for doing justice. Whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
The provision is clearly subject to particular rules, in this instance, Order 44 Rule 3(1) which has made specific provisions as to who is responsible for preparing record of proceedings in an appeal. In the circumstance therefore, Order 47 Rule 1 of the Bendel State High Court (Civil Procedure) Rules 1988 do not avail the respondents nor can the court rely on the inherent powers of the court where the rules of court have clear provisions. The provisions of the Supreme Court Rules and the Court of Appeal Rules relating to departure from the rules do not avail the Delta State High Court.
A court process which is filed but not known to law is null and void ab initio. If the court process results in a judgment, ruling or orders, the judgment ruling or order, is also null ab initio – see Mobil Oil unlimited v. Monakpo 18 NWLR (pt. 852) 347. The High court of Delta State does not have the competence to depart from its Rules and in the instant case clearly acted without jurisdiction. Grounds 1 and 2 of the grounds of appeal succeed.
The court below having acted without jurisdiction, issues 2 and 3 become irrelevant. This appeal succeeds. The Ruling of the High Court of Delta State sitting at Ogwashi-Uku on 15/8/2008 is hereby vacated and in its place is entered an order striking out the application. Costs to the appellant against the 2nd set of respondents are assessed at N30, 000.00.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Agbo, JCA. I agree that this appeal is meritorious. Therefore, I also allow it and abide by the consequential orders made in it, including that of costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother R.C. AGBO JCA. I agree with him that the High Court of Delta State does not have the competence to depart from its Rules and in the instant case clearly over stepped its bounds and acted without jurisdiction.
Consequently, I also strike out the Ruling of the High Court of Delta State sitting at Ogwashi-Uku made on the 15/8/2008 and abide by the order as to costs.
Appearances
C.O. Erondu For Appellant
AND
E.E. Apeh For Respondent
