INTERNATIONAL TOBACCO COMPANY LIMITED V. THE ATTORNEY-GENERAL OF OGUN STATE & ORS.
(2014)LCN/7143(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of April, 2013
CA/I/256/2010
JUSTICES
M.B. 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
INTERNATIONAL TOBACCO COMPANY LIMITED Appellant(s)
AND
1. THE ATTORNEY-GENERAL OF OGUN STATE
2. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED
3. BRITISH AMERICAN TOBACCO PLC.
4. BRITISH AMERICAN TOBACCO (INVESTIMENT) LIMITED Respondent(s)
RATIO
THE RESPONSIBILITY OF A LITIGANT IN INITIATING A COURT PROCESS
For the ease of clarity and an appreciation of duty lines, the relevant provisions of the High Court Rules are hereby reproduced. The Rules under which this application was considered provides as follows:-
Order 5 Rule 1
“the writ of summons shall contain the place and abode of the plaintiff and of the defendant so far as they can be ascertained. It shall also state briefly and clearly the subject matter of the claim, the relief sought for and the date of the writ and the place of hearing, Subject to the provisions of the rules or of any written law in force in Ogun State, no writ of summons for service out of jurisdiction shall be issued without the leave of court or the Judge in chambers. The writ shall be in form 1, 2, 3 or 4 in the appendix to the rules with such variations as circumstances may require.”
Order 5 rule 8(1)
“every writ shall be in forms 1, 2, 3 or 4 to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.”
By these provisions, the responsibility of the litigant is to initiate the process by stating his grievance clearly to the registrar and paying up all the requisite fees chargeable by the provisions of the law or the Rules of court. I must hasten to add that this is a completely distance scenario with the duty of the learned Counsel to ensure that Counsel duly appends his hallowed signature to all processes he is required by law to sign (Refer Section 2 of the Legal Practitioner’s Act, Cap 207 LFN, 1990 and the case of Nweke v. Okafor (2007) ALL FWLR (Pt.368) 1016 @ 1026 – 1027 – re-affirmed in First Bank of Nigeria Plc. v. Maiwada and Ors (2012) LPELR. PER DONGBAN-MENSEM, J.C.A.
M.B. DONGBAN-MENSEM, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice O. O. Olapade of the Ogun State High Court of Justice Holden at Abeokuta Judicial Division. The Ruling was delivered on the 20th day of May, 2010 in favour of the 1st Respondent as the Claimant/Respondent against the Appellant as the 2nd Defendant/Applicant. The Ruling is at pages 392-434 of the record of proceeding. The parties shall be referred to in this Judgment as Appellant and Respondent respectively. The Appellant was dissatisfied with the said ruling and appealed to this court by the notice of appeal dated 3rd June, 2010 in which five grounds were raised against the Judgment as contained in the records of proceedings (pages 232-235 of the record for this appeal).
The 1st Respondent commenced this action by a motion ex parte dated 23rd April, 2008 brought under Order 5 Rule 14 and Order 12 of the Ogun State High Court (Civil Procedure) Rules 1987 and the inherent jurisdiction of the High Court, and the leave to serve the Appellant with a “Concurrent Writ of Summons” and “Statement of Claim” at its registered office in England outside the jurisdiction of the High Court of Ogun State. Hung being so served the Appellant filed a notice of preliminary objection pursuant to Order 1 Rule 1(1), Order 3 Rule 1-4, Order 6 Rule 1-9 of the Ogun State High Court Civil Procedure Rules 2008.
The Appellant sought the following reliefs:
1. An Order setting aside the issuance and consequent service upon 2nd Defendant (Appellant) of the “Concurrent Writ of Summons” purportedly issued out of the registry of the lower court on the 26th of February, 2008 and dated 16th May, 2008.
2. A consequential Order striking out of the suit by reason of the fact that it was not initiated by due process of law.
The grounds for objection were as follows:-
1. An originating writ of summons was not applied for, neither was one issued out of the registry of the lower court (Ogun State High Court) as required by Order 5 Rule 1 of the High Court of Ogun State Civil Procedure Rules 2008.
2. An originating writ was not issued out of the registry of the lower court in respect of the writ.
3. The 1st Respondent only applied to the lower court for leave to issue a concurrent writ of summons out of the registry of the lower court.
4. The said concurrent writ was neither signed nor dated.
5. Based on the above grounds the purported issuance and consequent service of the concurrent writ of summons upon the Appellant violates Ogun State High Court Rules as to issuance of a valid writ of summons.
Two issues for determination as follows:-
i. Was the court below correct to reject the Appellant’s argument that the 1st Respondent’s failure to comply with their requirements of the 2008 High Court Rules with respect to the mode of commencement is fatal and all subsequent proceedings are a nullity, (this issue is distilled from ground one of the Notice of Appeal)
ii. Was the court below correct to hold that failure of the registrar to sign the court’s copy of the writ of summons does not invalidate the issuance and subsequent service of the writ of summons on the Appellant even after confirming that it was not signed. (This issue is distilled from ground two).
Conversely the 1st Respondent formulated a lone issue for determination as follows:-
i. Was the trial court right to have held that the 1st Respondent satisfied the requirement for issuance of the writ of summons issue on the 15th May, 2008 having regard to the provision of Order 5 Rules 1, 8(1) & 14 of the applicable rules of court on the issuance of forms 1, 2, 3, and 4 with necessary variation as the circumstances may require?
APPELLANT’S CASE
ISSUE ONE
Counsel for the Appellant submits that Rules of court are made to be obeyed as it aids in the attainment of justice and that noncompliance with the rules of court makes a proceeding incompetent. (Chime v. Eze (2009) 2 NWLR (Pt.1125) @ 263, Ngige v. Achukwu (2005). Counsel submits that the absence of signature of the registrar on the Writ of summons in the courts file renders the one’s serve on the Appellant a nullity, void and that that the trial court erred to have rule that it was not the fault of the Respondent as such writ was properly issued.
Counsel submits that you cannot put something on nothing and expect it to stand as there was nothing before the trial court to give it jurisdiction to grant the issuance of writ. (Macfoy v. United Africa Company Ltd. (1962) A.C. 152 @ 160, Udene v. Ugwu (1997) 3 NWLR (Pt.491).
Counsel also submits that the Rules particularly Ogun State High Court Civil Procedure Rules 1988 made it mandatory for a Writ of Summons to be issued before an action is said to have been properly commenced. Counsel support his argument with the case of Lawal v. Oke (2001) 7 NWLR (Pt.711) CA. 88 @ 109. That the issuance of a Writ which is a prerequisite was neither signed or dated which goes to say that Writ was never issued and the once issued was invalid and unlawful that is, robbing the trial court of jurisdiction to entertain the case and anything that comes out of the proceedings is a nullity.
Madukolu v. Nkemdilim (1962) ANLR (Pt.2) Pg. 581).
ISSUE TWO
Counsel submits that every civil action must commence with a Writ of Summons and in the absence of a Writ a court is deprive of the jurisdiction to entertain such matter as no proceedings was initiated. That a Writ shall be signed by the registrar or other officer of the court authorizes to sign the Writ. (Refers Order 5 Rule 13 of the Ogun State Civil Procedure Rules 1988, Ajibola v. Sogeke (2003) 9 NWLR (Pt.826) 494 @ 524 para. G-H; 525; 52 para. D-H; R.M.A.F.C. v. Onwuekweikpe (2009) 15 NWLR.
Counsel also submits that lack of signing of a Writ of Summons, the initiator of a proceeding is a fundamental defect which robs the court of jurisdiction and anything done subsequently to the invalidly issued Writ is a nullity. That Rules of court must be obeyed where there is one. Like in this case where there is condition to be fulfil for an action to be deemed to have commenced and not compiling with that condition renders the proceeding a nullity and the trial court ought to have stroke out this proceedings. (Refers: Seven Up Bottling Company Ltd v. Trio Comm. Co. Ltd. (Pt.455) @ 448, Ejefor v. Okeke (2007) 7 NWLR (Pt.665) 363 CA @ 378 – 379, Shugaba v. U.B.N. Plc. (1999) 11 NWLR (Pt.627) 459 SC @ paras. B-C, Obeta v. Okpe (1996) 9 NWLR (Pt.473) 401 @ 448 para. F, Saude v. Abdullahi (1989) 4 NWLR (Pt.116) ANLR Pg. 581 @ 422, Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt.712) 496 @ 507).
The 2nd to the 4th Respondents filed no briefs.
1ST RESPONDENT CASE
The 1st Respondent on the other part drew the attention of this court to the fact that out of the two grounds of appeal from the Appellant’s Notice of Appeal, the Appellant raised and argued issue in respect of Ground two abandoning Ground one which is liable to be struck out and urge this court to strike it out. (Refers Iyoho v. Effiong (2007) 11 NWLR (Pt.1044) 31, Sunday v. INEC (2009) 12 NWLR (Pt.1154) 194 @ 207.
It is the submission of Counsel that proliferation of issues for determination is unknown to our law that two issues formulated from Ground two is incompetent and liable to be struck out as single issue may be formulated from many Grounds but many issues cannot be formulated from one Ground. That the Appellant formulated two issues from Ground two of the Notice of Appeal and urged this court to strike out Ground two and the issues formulated from that Ground. Counsel placed reliance in the cases of UBA Plc v. Abdullahi (2003) 3 NWLR (Pt.807) 359 @ 371, Agbeotu v. Brisibe (2005) 10 NWLR (Pt.932) 1 @ 16, Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) 506, Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376.
Counsel went ahead to present his argument on the lone issue he formulated.
It is learned Counsel’s submission that a litigant can only be penalized for non-compliance with the condition precedent for the commencement of a suit if the condition falls within the duty of the litigant, as in this case the litigant played his part and the rest is the domestic affairs of the court and if there is any error it should be corrected by the court registry. (Refers Famfa Oil Ltd v. AG of Federation (2003) 18 NWLR (Pt.852) 453 @ 471-472, Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 @ 468).
On the condition precedent under the Rules, Counsel refers this court to Order 5 Rules 1, 8(1) and 14 of the High Court of Ogun State (Civil Procedure) Rules 1987 and submits that the 1st Respondent complied with all the requirements stated in the above provisions by issuing Form 3, obtaining leave to serve Writ outside jurisdiction. That the Writ served on the Appellant was signed and it was only the one in the court’s file that was not signed which is a curable irregularity and the Appellant has not shown how the irregularity complained of if any, occasioned injustice to it and the trial court was right to have held as it did on page 224 of the record.
Counsel also submits that there is a distinction between what a litigant is expected to do and the administrative duty of the court and that signing and dating originating process are administrative duties of the court and the litigant should not be punish for the inadvertence of the court or its officers.
Counsel further submits that reliance on procedural technicalities should not underscore the importance of substantive justice. That technicalities is dead in our judicial system and court should avoid embarking on such exercise. (Refers: BBN Ltd v. Olayiwola (2005) 3 NWLR (Pt.912) 434 @ 415, 452, 453).
On the cases cited by the Appellant in support of his argument, the learned silk distinguish them and submits that they are good authorities for what they were decided for but are not applicable for this present case.
Counsel then submits that this appeal lacks basis on both law and facts and is bound to fail. He urges this court not to interfere with the findings of the trial court as it is not perverse in any way. (Refers Hamza v. Kure (2010) 10 NWLR (Pt.1203) 630 @ 654 – 655).
The Appellants raised and argued two issues on one ground of appeal and the 1st Respondent has urge us to strike out ground two of the appeal as abandoned for the reason that no issue was formulated nor argument in respect of the said ground. The case of Iyoho v. Effiong and Sunday v. INEC are cited in support of this submission. Although the Appellant raised two issues in its Appellant’s brief dated the 21st day of March and filed on the same date but deemed dully filed on the 11th day of May, 2011, arguments were stated as made based on the 1st Respondent’s brief which cited this obvious errors as dated the 9th day June, 2011 filed on the 10th June, 2011 gave good notice of this error to the Appellant which rather turned a blind eye to same by failing to take step to redress the error. A surreptitious attempt was made at the hearing to correct this error but was promptly resisted by the 1st Respondent and rightly so. Some errors are described as learned Counsel’s errors which must not be visited on the litigant. However, some errors are fundamental and calls into question the professional diligence of the learned Counsel and must not be swept under the carpet. Such is the situation of the issue under consideration. There being no argument advanced in support of the ground one of the appeal, the said ground is deemed abandoned and is hereby struck out and the argument proffered in support thereof is hereby discountenanced (Refers Iyoho v. Effiong (2007) 11 NWLR (Pt.1044) 31, UBA Plc. V. Abdullahi (2003) 3 NWLR (Pt.807) 359 @ 371, Agbeotu v. Brisibe (2005) 10 NWLR (Pt.932) 1 @ 16, Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) 506, Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376).
This appeal shall be determined on the sole issue formulated by the 1st Respondent.
The pith of the argument of the Appellant is that by a search, foraging into the court files, it discovered that the file copy of the writ of summons served on it was infact not signed.
In response to this argument raised as a notice of preliminary objection, the 1st Respondent cites the provisions of Order 5 Rules 8(1) of the High Court of Ogun State (Civil Procedure) Rules 1987 and submits that if there were any omissions, they were those of the registrar of court and the litigant should not be penalized for it.
The learned trial Judge was persuaded by the argument of the 1st Respondent and thereby found no merit in the submission of the Appellant as applicant before the court.
In urging this court to dismiss this appeal, the learned senior Counsel relied on the case of Famfa Oil Ltd v. A-G Fed. (2003) (supra) which is of similar circumstance with the present appeal in which the apex court held that no miscarriage of justice had occurred by the irregularity occasioned by the failure to duly sign the process.
Was the learned trial Judge properly guided in dismissing the objection of the Appellant? The decision of the learned trial Judge is at page 221 – 222 and has been cited in the brief of argument of the 1st Respondent as follows:-
“there is the allegation that the court’s file copy is unsigned by the Registrar of court as required for its issuance. Something is very clear here and it is that there is no Rule of Court or Law which requires the Claimant to ensure or monitor the signing of the writ he filed in the Registry of Court. Or 5 r 15 or any Rule at all assigns no duty to the Claimant after filing or lodging his application for issuance of a writ of summons. The issuance and other subsequent stages the writ passes through are the responsibilities of the Court.”
In line with the decision in Saude v. Abdullahi (1989) 4 NWLR (Pt.116) p.387 @ 468, the non-signing of the originating summons is only an irregularity that can be cured by the court.”
Indeed, I find the situation of this appeal to be innocuous and distinct from that of Saude’s case (supra). The point taken in this appeal is that only the court’s file copy was not signed. The processes served on the Appellant were duly signed and properly served. In my humble opinion, the learned trial Judge can hardly be faulted in holding that the litigant has no obligation to monitor the signing of the writ he filed in the Registry of the court, such not being a duty assigned to the litigant by Order 5 Rules 1 & 8 of the Ogun State High Court (Civil Procedure) Rules 1987. For the ease of clarity and an appreciation of duty lines, the relevant provisions of the High Court Rules are hereby reproduced. The Rules under which this application was considered provides as follows:-
Order 5 Rule 1
“the writ of summons shall contain the place and abode of the plaintiff and of the defendant so far as they can be ascertained. It shall also state briefly and clearly the subject matter of the claim, the relief sought for and the date of the writ and the place of hearing, Subject to the provisions of the rules or of any written law in force in Ogun State, no writ of summons for service out of jurisdiction shall be issued without the leave of court or the Judge in chambers. The writ shall be in form 1, 2, 3 or 4 in the appendix to the rules with such variations as circumstances may require.”
Order 5 rule 8(1)
“every writ shall be in forms 1, 2, 3 or 4 to the like effect in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.”
By these provisions, the responsibility of the litigant is to initiate the process by stating his grievance clearly to the registrar and paying up all the requisite fees chargeable by the provisions of the law or the Rules of court. I must hasten to add that this is a completely distance scenario with the duty of the learned Counsel to ensure that Counsel duly appends his hallowed signature to all processes he is required by law to sign (Refer Section 2 of the Legal Practitioner’s Act, Cap 207 LFN, 1990 and the case of Nweke v. Okafor (2007) ALL FWLR (Pt.368) 1016 @ 1026 – 1027 – re-affirmed in First Bank of Nigeria Plc. v. Maiwada and Ors (2012) LPELR.
In the instant appeal, all the processes served on the Appellant were duly sealed (signed) and delivered (served) on the Appellant in accordance to law. It is my humble opinion that a litigant who has gone the whole hog as in the case under consideration must not be shut down by some wishful interrogation which add nothing of value to the case of the Appellant who has not in any way been disadvantaged by the seeming error fished out. No miscarriage of justice has been made out by the failure of the registry to sign the court’s copy of the process nor has any perversion of justice been objectively cited in the decision of the learned trial Judge.
The relevant portion of the decision of the learned trial Judge is worthy of reproduction in this judgment. (pages 427-428 of the records of proceedings)
“By the Motion Ex-parte filed and dated 23/04/08, the Claimant sought amongst others, the leave of Court to issue the Writ of Summons, and to serve same.
It is observed that prior that date, the Claimant had applied for the Writ of Summons on 26/02/08. This is the Originating Process on page 1 of the Case file herein. It is also Exhibit Awe II in the 2nd Defendants Notice of Preliminary Objection.
It is also an Exhibit in the 1st Defendant’s Application.
It has been alleged that the file copy was never signed by the Registrar of Court. I note that none of the Defendants/Applicants claims that what was served on it was not signed or dated by the Registrar. This is what the Law requires.
That the file copy was not signed by the Registrar is certainly no business or fault of the Claimant. It is the Registrar who should have signed it. That Law has since been settled that parties would not be held liable for errors or omissions committed by the officials of the Court.
I affirm this profound decision.
This appeal lacks merit and is hereby dismissed.
A cost of N30,000.00 is order in favour of the 1st Respondent and against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother M.B. Dongban-Mensem, JCA.
I agree with the reasoning and conclusion arrived at in holding that the appeal lacks merit and the order dismissing same. I also dismiss the appeal.
ADAMU JAURO, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, M.B. Dongban-Mensem, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the appeal lacks merit and should be dismissed. I adopt same as mine and hereby dismiss the appeal.
I abide by consequential orders made, including order as to costs.
Appearances
Ezeala with O. AweFor Appellant
AND
Prof. Yemi Osibajo (SAN) with Babatunde Irukera, Dapo Akinosun, Mrs. V.O.M. Alonge,
Miss Funmilola Mesaiyete, Bashir Ramoni and Seun Lawal for the 1st Respondent
Adebiyi Adegbanure with Peters O. Agboola and Joshua Abe for the 2nd Respondent
Fred Onuobia with Fidelis Adewole for the 3rd RespondentFor Respondent
