MEDVIN PHARMACEUTICALS NIG LTD & ORS v. FIDSON HEALTHCARE PLC
(2020)LCN/14718(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, November 13, 2020
CA/L/1053/16
RATIO
CIVIL PROCEDURE: ACCOMPANIMENT OF ALL CIVIL PROCEEDINGS COMMENCED BY WRIT OF SUMMONS
The basis of this appeal is the non-compliance with the provisions of Order 3 Rule 2(1) of the lower Court’s Rules of Civil Procedure. For guidance and emphasis I will reproduce and examine the said rule in order to discern what it requires the Respondent to do in the commencement of its case via a writ of summons before the lower Court. The rule provides that:
All civil proceedings commenced by writ of summons shall be accompanied by:
a. A statement of claim;
b. A list of witnesses to be called at the trial;
c. Written statements on oath of the witnesses except witnesses on subpoena;
d. Pre-action protocol form 01. PER ALIYU, J.C.A.
CRIMINAL PROCEDURE: HOW CRIMINAL CASES ARE COMMENCED
Criminal cases cannot be determined by affidavit evidence but are commenced by specified modes of commencing criminal proceedings, such as a charge or information filed before the lower Court. Criminal allegations cannot be made or proved by affidavit. See Tijjani & Ors vs. FBN Ltd (2014) LPELR-22978 (CA) and Daggash V. Bulama (supra) at page 232 paragraph D. PER ALIYU, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
- MEDVIN PHARMACEUTICALS NIGERIA LTD 2. ALABUA VINCENT CHUKWUEMEKA 3. AKINLOLU IDOWU OLAYIWOLA (TRADING UNDER THE NAME AND STYLE OF IFEBUN GENERAL ENTERPRISES) APPELANT(S)
And
FIDSON HEALTHCARE PLC RESPONDENT(S)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State delivered on the 21st April 2016 in respect of a preliminary objection filed against suit NO:LD/1553/CMW/2015. The Respondent commenced the said suit as the claimant through a writ of summons issued on the 18th December 2015 against the Appellants as the defendants, praying the lower Court for declaration that the Appellants are indebted to it in the sum of N42, 895, 300 being outstanding value of pharmaceutical products delivered and supplied by the Respondent to the Appellants which they failed to pay, and for judgment in the said sum. See page 2 to 9 of the main record of appeal.
The Respondent also filed a motion ex-parte on the 17th December 2015 in which 19 banks were named as “Garnishee/Respondents” and the Respondent prayed the lower Court to restrain them from honouring any mandate or cheque presented by the 1st Appellant to them for withdrawal of any sum of money or funds standing to the credit of any of the accounts of the Appellants kept therein. The Respondent also prayed the lower Court for an order
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mandating the named banks to file within 48 hours of service of the order nisi on them to file before the lower Court returns of statements of accounts on the defendants between January 2014 to the date of the service of the order of Court. See pages 108 to 113 of the main record of appeal.
The lower Court refused to hear the Respondent application ex-parte and ordered that it to be converted on notice and be served on the Appellants/Defendants. Upon being served, the Appellants responded with a preliminary objection which they filed on the 11th February 2016, supported by an affidavit of 3rd Appellant and counsel’s written address, all located in pages 213 to 222 of the main record of appeal. The Appellants by that notice challenged the jurisdiction of the lower Court to entertain not only the Respondent’s motion of 17th December 2015, but the entire suit and they prayed that both should be struck out on the following grounds:
1. The non-satisfaction of the condition precedent to the institution of this action to wit; non-compliance with the pre-action notice protocol invalidates the suit and robs the Court of jurisdiction to entertain
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the same.
2. The application is incompetent as same contains names of parties not originally contained in the writ and other originating processes, whereas no leave of Court was sought and obtained before those parties were joined.
3. The application is expressed to be a garnishee proceeding, however, the condition precedent to the institution of garnishee proceedings have not been satisfied.
4. The Court has no jurisdiction to entertain any of the documents attached to the affidavit in support of the application.
5. The application was filed in utter bad faith with the unmistakable intent of distressing, bringing to disrepute and frustrating the Respondents, and consequently is a gross abuse of Court’s process.
6. The Honorable Court lacks jurisdiction to entertain the application.
In response/opposition to the preliminary objection, the Respondent filed a counter affidavit accompanied with a counsel’s reply address, as copied in pages 168 to 212 of the main record of appeal. After considering all the processes filed, the learned judge delivered the lower Court’s ruling on the 21st April 2016 and found no merit
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in the objection to jurisdiction to determine the substantive suit and he dismissed it. With regards to the motion of the Respondent, the learned trial Judge held:
The Court finds that the application dated 17th December 2015 filed by the Claimant is without doubt mischievous, defective, incompetent and an abuse of the process of the Honourable Court, the application is therefore accordingly dismissed.
In effect, the preliminary objection of the Appellants succeeded in part. The ruling of the lower Court is contained in pages 1 to 9 of the supplementary record of appeal. However, the Appellants were aggrieved with the entire ruling of the lower Court and they filed this appeal by their notice of appeal filed on the 4th July 2016 relying on two grounds of appeal to pray this Court to allow the appeal, set aside the ruling of the lower Court and strike out the Respondent’s suit for lack of jurisdiction. The Appellants’ brief of argument was filed on the 6th March 2018 and deemed on the 2nd May 2018. Mr. J. A. Agbi who settled the Appellants’ brief formulated a sole issue for the determination of the appeal thus:
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Whether given the peculiar circumstances of this action, the learned trial Judge ought to have struck out the action from which this appeal arose? (Grounds 1 & 2)
In opposing the appeal, the Respondent filed its brief on the 20th April 2018, consequentially deemed on the 2nd May 2018. The said brief was settled by Imoh Gedeon Udofia Esq., and he proposed two issues for determination of the appeal as:
1. Was the lower Court right in its interpretation of Order 3 Rule 1 & 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012
2. If issue one above is answered in the affirmative does the lower Court have jurisdiction to entertain Respondent’s suit?
PARTIES’ SUBMISSIONS
The Appellants’ learned Counsel in arguing the sole issue for determination referred us to Order 3 Rule 2 of the lower Court Rules of Civil Procedure which provides that all proceedings commenced by writ of summons shall be accompanied by a pre-action protocol form 01. The said form 01 is a sworn declaration on oath to be sworn by a person who has actually taken steps for amicable settlement of the dispute, and this could be either the claimant or his legal
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practitioner. That in this case, the learned counsel for the Respondent who deposed to affidavit comprising the lower Court’s form 01 did not personally take any step nor participated in any attempt to settle the dispute, contrary to his deposition.
That was why the Appellants challenged the said facts deposed by Respondent’s counsel in form 01 through their affidavit dated 12th February 2016 (page 215 of the record of appeal), to which there was no reply affidavit filed to contradict the facts in their affidavit. Yet the learned trial Judge declined to accept the argument of the Appellants and held that there was substantial compliance with the pre-action protocol as required by the said rules of Court. The learned counsel argued that there are no provisions in the lower Court’s rules allowing for the saving of an action, which fails to comply with the pre-action protocol on the ground of “substantial compliance” with the protocol. He relied on the case of Madukolu Vs. Nkemdilim (1962) 2 SCNJ 264, which settled the principle of law that non-satisfaction of a condition precedent to the initiation of an action robs the
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Court of jurisdiction to entertain it.
He submitted further that the learned trial Judge missed the point of the Appellants’ objection, which is not that the events (pre-action protocol) did not occur, but that their objection is that the rules of Court are specific as to who should make the declaration on oath in form 01 for the requirement to be satisfied. He argued that in this case, throughout the period of discussions for amicable resolution of the matter, learned counsel for the Respondent who made the declaration was never involved at all. He neither made any phone calls or attended any meetings or wrote any letters or in any manner engaged in any communication with the Appellants. That the learned counsel appeared from nowhere and stated on oath that he did deeds that “everyone knows he never did.” Learned Counsel submitted that the lower Court ought not have accorded any credibility to the pre-action protocol filed by the Respondent since he never took any steps that he claimed to have taken in the attempt at amicable resolution of the matter. He relied on the case of Daggash Vs. Bulama (2004) 14 NWLR (pt. 892) 144 at 250 to the
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effect that a person who falsely testified on any matter should not be ascribed any credibility in respect of the issue before the Court. He urged us to agree with the Appellants that there was non-compliance with the pre-action protocol because the party that swore to have taken steps in compliance therewith was shown to have falsely so declared. We were urged to so hold and to set aside the ruling of the lower Court and to strike out or dismiss the Respondent’s action.
On his part, the Respondent’s learned counsel argued in support of his proposed issue one that what this Court will consider in determining this appeal is whether the Respondent complied with the provisions of Order 3 Rule 1 of the lower Court’s rules of civil procedure. In this regard, we were urged to consider the documents that accompanied the writ of summons, which included the pre-action protocol form 01. He relied on the case of SPOG Petrochemicals Ltd & Anor. Vs. PAN Peninsula Logistics Ltd (2017) LPELR- 41853, where this Court interpreted the provisions of Order 3 Rule 1 of the lower Court’s rules of civil procedure, and held that the protocol form 01
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has nothing to do with the validity or competence of the writ of summons which it accompanied. That once the facts stated therein are sworn before a duly authorized commissioner for oaths and signed by the person who swore to the facts contained therein, the requirement of the rule of procedure has been met. The learned counsel submitted that the argument of the Appellants is for the purpose of rendering the pre-action protocol form 01 defective or invalid which similar argument was rejected by this Court in its decision in the cited case of SPOG Petrochemical. He therefore urged the Court to discountenance the Appellants’ averments in their affidavit and their counsel argument in support of same; and to resolve Respondent’s issue one its favour.
On the Respondent’s proposed issue two, the learned counsel argued that the ground of the Appellants’ objection to the jurisdiction of the lower Court was the failure to fulfill a condition precedent as required by the lower Court’s Order 3 Rule 1. He therefore adopted his argument under issue one supra, and urged the Court to also resolve this issue in favour of the Respondent and
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to dismiss this appeal.
RESOLUTION
I adopt the sole issue formulated by the Appellant for the determination of this appeal having observed that it is not dissimilar with the two issues the Respondent proposed. The basis of this appeal is the non-compliance with the provisions of Order 3 Rule 2(1) of the lower Court’s Rules of Civil Procedure. For guidance and emphasis I will reproduce and examine the said rule in order to discern what it requires the Respondent to do in the commencement of its case via a writ of summons before the lower Court. The rule provides that:
All civil proceedings commenced by writ of summons shall be accompanied by:
a. A statement of claim;
b. A list of witnesses to be called at the trial;
c. Written statements on oath of the witnesses except witnesses on subpoena;
d. Pre-action protocol form 01.
From their grounds of appeal and the submissions of the Appellants’ learned counsel in support of the issues distilled therefrom, it is clear that their grouse is not that the Respondent’s writ of summons was unaccompanied with a pre-action protocol form 01, because it was, but their
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complaint is that the counsel of the Respondent who made the declarations in the pre-action protocol form 01 that accompanied the writ of summons deliberately lied on oath because he did not in any way participate in the pre-action protocols deeds he declared that he did in the attempts made to have the matter settled out of Court, failure of which led to the filing of the suit. The Appellants posited that for this reason of false declaration in the form 01, there was no substantial compliance with the pre-action protocol and the learned trial Judge was wrong to hold that there was.
Thus since there is no dispute on the fact that indeed a statement of compliance with pre-action protocol form 01 actually accompanied the Respondent’s writ of summons filed before the lower Court, the issue for determination is narrowed to whether the truth of the contents of the pre-action protocol form 1 is within the contemplation of the Rule 2(1) of Order 3 quoted above. However, before I determine this issue, it is important to examine the pre-action protocol declaration form 01 that the Respondent filed along with its writ of summons before the lower Court.
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The said form is copied in page 1 of the record of appeal, and Imoh Gideon Udofia Esq, counsel of the Respondent declared therein, that he made attempts to have the matter settled out of Court with the Appellants, but such attempts were unsuccessful. He also declared that a demand letter was written to the Appellants requiring them to liquidate their indebtedness to the Respondent but to no avail and that resulted in the Respondent/claimant filing the suit. Mr. Udofia made the declarations on oath before the commissioner for oaths of the lower Court on the 17th December 2017. As stated earlier the Appellants are asserting that the declaration made by the counsel of the Respondent are false, and that since he allegedly lied under oath, the writ of summons that the form accompanied is incompetent having not been commenced by due process and that for this reason the lower Court lacked jurisdiction to determine the suit.
It is important to note that the only penalty the lower Court’s Order 3(2)(2) provides for failure of a claimant to file his writ of summons without accompanying same with pre-action protocol form 01 is that the registry will not accept the
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writ for filing. The rule provides thus:
(2)- Where a claimant fails to comply with Rule 2(1) above, the originating process shall not be accepted for filing by the Registry.
However, it is clear in this case that the writ of the summons accompanied with the processes including pre-action protocol form 01 were accepted and registered by the registry of the lower Court. It is not a requirement of the Rules of the lower Court for the registry to ensure that the declarations made in the pre-action protocol form 01 are correct and true before it could accept the processes for filing. It was also not provided in the rule that the failure to file this pre-action protocol invalidates the writ of summons. Even where the claimant refuses or fails to file his originating process along with any of the documents listed in Rule 1 of Order 3 the penalty is only a refusal by the registry to accept his or her processes for filing. Such a claimant would simply have to comply with the requirement of the rule before the registry accepts and register his processes to commence the suit. In the case of SPOG Petrochemicals Ltd V. P. P.L. Ltd (supra) cited by the Respondent
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and can also be found in (2017) LPELR-41853 (CA), this Court, per Garba JCA interpreted Sub-rule 2 of Order 3 quoted supra and held (in page 337, paragraph E-F of the (pt.1600) of the NWLR) that:
The above provision did not say that failure to accompany a writ of summons with any one of the processes listed in Sub-rule (1) would render an otherwise valid writ, incompetent. In unambiguous terms, the provisions only provide that where writ was not accompanied by all the processes listed therein, it shall not be accepted for filing by Registry. However once accepted and assessed by the Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of non-compliance with the provisions cannot affect the validity and competence of the writ.
The circumstance of this appeal is that the pre-action protocol form 01 actually accompanied the writ that was accepted and registered by the registry of the lower Court. It is the contents of the form that the appellants challenged as being untrue. Since the writ was accompanied with the pre-action protocol duly declared before the commissioner for oaths, the requirement of the rules
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of the lower Court has been met and the writ of summons is valid having complied with the said rule. I am in agreement with the learned trial Judge when he held in page 9 of the supplementary record of appeal that there is substantial compliance with the rules of Court in the commencement of the suit and he has jurisdiction to entertain the claims of the Respondent therein.
In any event, the complaint of the Appellants has the effect of accusing the declarant of the pre-action protocols of perjury, that is, lying on oath, which is a criminal offence punishable under the Criminal Code Law of Lagos State. Criminal cases cannot be determined by affidavit evidence but are commenced by specified modes of commencing criminal proceedings, such as a charge or information filed before the lower Court. Criminal allegations cannot be made or proved by affidavit. See Tijjani & Ors vs. FBN Ltd (2014) LPELR-22978 (CA) and Daggash V. Bulama (supra) at page 232 paragraph D.
For the reasons highlighted supra, I resolve the lone issue against the Appellant as a consequence of which I find no merit in this appeal and I dismiss it. The ruling of lower Court
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delivered on the 21st April 2016 is hereby affirmed by me. Cost of N200, 000 (two hundred thousand Naira) is awarded against the Appellants.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the succinct judgment prepared by my learned brother, Balkisu Bello Aliyu, J.C.A.
EBIOWEI TOBI, J.C.A.: I have been afforded in advance the privilege of reading the draft leading judgment of my learned brother, Balkisu Bello Aliyu, JCA. and I have no reason to depart from my lord’s conclusion.. On my part, I have nothing more to add.
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Appearances:
APPELLANT’S COUNSEL SERVED WITH NOTICE OF THE HEARING OF THE APPEAL BUT WAS ABSENT For Appellant(s)
GIDEON UDOFIA ESQ. For Respondent(s)
