MR. BONIFACE UFOEGBUNAM v. BARR. JIDEOFOR OKONGWU
(2018)LCN/11953(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/125/2014
RATIO
COURT AND PROCEDURE: ORIGINATING SUMMONS
“I am aware that the order starts with the phrase ‘Every Originating process In the construction of a statute or rule of Court, no portion can or must be taken in isolation. A wholistic view of the legislation must be taken in order to ensure that the intendment of the legislature is what the Courts decipher and enforce. The writ in this case was endorsed by the legal practitioner of the plaintiff who put his initials and surname and his address for service. I am of the view that the maker of the rules would be satisfied with what has been done here. After all there is no confusion occasioned the defendant regarding the identity of the claimant.’ See: Abioye & Ors v. Yakubu & Ors (1991) 5 NWLR Pt. 190 Pg. 130; Osho v. Phillips (1972) 4 S.C 259.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: THE POWER OF JURISDICTION
“In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Sken Consult v. Ukey (1981) 1 SC 6, it was stated that for a Court to have jurisdiction the following conditions must be present (a) the proper parties are before the Court (b) the subject matter falls within the jurisdiction of the Court. (c) The composition of the Court as to member and qualifications (d) the suit commenced by due process of law and upon fulfillment of any condition precedent to assumption of jurisdiction.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
MR. BONIFACE UFOEGBUNAM – Appellant(s)
AND
BARR. JIDEOFOR OKONGWU – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the interlocutory decision of Hon. Justice C.A. Emembolu of the High Court of Anambra State delivered on 18/11/13. On the 29th February 2012, the Plaintiff (Respondent herein) commenced suit No. A/65/12 against the Defendant (Appellant herein) in the High Court of Anambra State, sitting at Awka Judicial Division by filing a writ of summons claiming for:
a) Two (2) Million Naira damages for malicious prosecution.
b) Two (2) Million Naira damages for false imprisonment.
The Appellant filed a memorandum of appearance and statement of defence on 9th May 2013. On the 5th July 2013, the Appellant filed a motion on Notice for ‘An order striking out or dismissing the plaintiff’s suit for non-disclosure of cause of action, incompetence, abuse of Court process, and lack of jurisdiction of the honourable court to entertain same’.
The motion on notice was supported by a 12 paragraph affidavit, and a written address of counsel, the Respondent filed a counter affidavit and his written address in response to the said application. On 18th November 2013, the learned trial judge dismissed the application and awarded cost of N10, 000 against the Appellants. The Appellants being dissatisfied with the decision of the lower Court timeously filed a Notice Appeal on 28th day of November 2013.
Records were transmitted on 11/3/14. Appellant filed his brief of argument on 16/10/14 and Reply brief was filed on 22/9/17. The Respondent filed a notice of preliminary objection on 13/6/17 which they moved and argued at the hearing of the appeal as contained in their Respondent’s brief of argument filed on 13/6/17.
Let me first address the issue of the preliminary objection raised against the competence of the appeal. Respondent’s counsel had argued that this interlocutory appeal is incompetent and this Court lacks the Jurisdiction to entertain same because leave was not sought and obtained by the Appellant from either the High Court of this Court before the notice of appeal was filed contrary to Section 24 of the Court of Appeal Act 2004.
In a brief settled by Lolo Chinelo Okongwu Esq, counsel submitted that there is no appeal before this Court and urged the Court to strike out the appeal pursuant to Order 7 Rule 6 of the Court of Appeal Rules 2016. Counsel cited: Joe Surakatu v. Housing Dev. Society Ltd (1981) 4 SC 28, Ogbonna v. The State (1985) 1 NWLR Pt.2 Pg. 223; Harrison Welli v. Okechukwu(1985) 2 NWLR Pg. 63 at Pg. 67.
In the Appellant’s reply brief Dr. Sir L.O. Arinze and Chinedu Ezeoba Esq argued that the sole ground of appeal in this case is a challenge to the jurisdiction of the High Court to entertain a writ filed in non-compliance with condition precedent.
Counsel submitted that where the appeal is on a question of jurisdiction, then leave need not be sought or obtained before the Court below or this Court, and that there is no doubt that filing a notice of appeal is the life wire upon which an Appeal is based. Counsel insisted that it is mandatory that before an appeal can be properly entertained by the Court, such Notice and Grounds must be competent and that an appeal based on an incompetent Notice of Appeal cannot be entertained by the Appellate Court.
Let me address this objection first. Order 7 Rule 6 of the Court of Appeal Rules 2016 provides as follows:
The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
In considering this issue, I must look at the precise provisions of the law in this regard. Section 24(1) and Section 24(2) of the Court of Appeal Act, 2004 provides as follows:
Where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal or Notice of his Application for leave to appeal in such a manner as may be directed by the rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
Section 24(2) of the Court of Appeal Act 2004 provides as follows:
The period for giving Notice of Appeal or Notice of Application for leave to appeal are: in an appeal in civil case or matter fourteen days where the appeal is against interlocutory decision and three months where the appeal is against a final decision.
Section 241(1) (b) of the 1999 Constitution provides that an appeal lies as of right where the ground of appeal involves question of law alone in civil or criminal proceedings.
Let us now look at the sole ground of appeal filed by the Appellant in this appeal as contained on page 106 of the Record.
GROUND ONE: ERROR IN LAW
The learned trial judge erred in law when she wrongly assumed jurisdiction to hear and determine a defective and incompetent suit of the plaintiff.
PARTICULARS OF ERROR
The writ of the plaintiff’s suit has no endorsement of the plaintiff’s address and the address of the legal practitioner that filed the suit as required by the rules and the law.
It is crystal clear that the issue brought before this Court is purely a matter of law in that it involved the question of the interpretation of the rules of practice in relation to the essential endorsements on the writ of summons which ensures competence of same. Thus there is no mandatory provision compelling the appellant to seek and obtain leave to bring this appeal brought pursuant to Section 241(1)(b) of the 1999 Constitution. Obviously the learned Respondent?s counsel did not fully understand the applicability of S.24 of the Court of Appeal Act.
In the circumstances I am of the humble view that the preliminary objection is completely misconceived and should be dismissed. It is hereby dismissed.
Now, to the appeal itself. In the Appellant’s brief, Dr. Arinze had distilled a sole issue from the sole ground of appeal as follows:
Whether the learned trial judge was right in dismissing the defendant/applicant’s application to strike out the suit on grounds of incompetence; and assuming jurisdiction to entertain the suit filed in noncompliance with Order 4 Rule 1 of the Anambra State High Court Civil Procedure 2006, a condition precedent.
Lolo Chinelo Okongwu Esq, counsel to the Respondent essentially couched the same issue and I will thus determine the appeal on a consideration of the Appellant’s Sole issue
SOLE ISSUE
Learned Appellant’s Counsel argued that the issue of Noncompliance with a condition precedent in beginning or commencing any proceeding in Court is a jurisdictional issue which can be raised at any time, even on appeal. Counsel cited: Mohammed v. Lawal (2006) 9 NWLR Pt. 985 Pg.400 at 422; Umanah v. Attah (2006) 17 NWLR Pt.1009 Pg. 503 at 534; Abdulhamid v. Akah (2006) 13 NWLR Pt. 996 Pg.127 at 140-146; Afribank Nig. Plc v. Bronik Industry Ltd (2006) 5 NWLR Pt. 973 Pg. 300 at 310.
Learned Counsel submitted that in view of the provisions of Order 4 Rule 1 and Order 5 Rule 1(1) of the Anambra State High Court Civil Procedure Rules 2006, the trial Court is under a duty to treat non-compliance with the provisions of Order 4 Rule 1 as nullifying the Writ of Summons instead of looking elsewhere for the full names and address of the plaintiff to justify the one required by the rules to be indorsed on the writ of Summons.
Learned Counsel further submitted that the word ‘SHALL’ in stating the requirement in Order 4 Rules 1 and the consequence of noncompliance in Order 5 Rule 1(1) must be interpreted and applied as meaning that the requirement for compliance is mandatory and that result of noncompliance is also mandatory.
Learned Counsel argued that the trial Court has no discretion in applying the effect of noncompliance in any other manner except as prescribed in Order 4 Rule 1 and Order 5 Rule 1 of the said Court’s Rule. Counsel strongly commended to our attention Sylvester v. Ohiakwu (2014) 5 NWLR Pt. 1401 467 at 507 Para E-G, a decision of the Enugu Division of this Court.
Counsel faulted the factual conclusion of the learned trial judge that the names and full address of the plaintiff was indorsed on the writ. Counsel also cited: Habib (Nig) Bank Ltd v. Ochete (2001) 3 NWLr Pt. 699 Pg. 114 at 135-136. And Onochie v. Odogwu (2006) 6 NWLR Pt. 975 Pg.65 at 89 to urge this Court hold that the writ is incompetent as the word ‘shall’ was used in the rule of Court. Counsel also cited Mobil Producing v. Chief Monokpo & HRH Akanowo & Ors (2003) 16 NSCQR 448 at 525; to urge this Court to strike out the writ at the trial Court.
In reply, the learned Respondent’s Counsel Lolo Chinelo Okongwu Esq argued that the finding of the learned trial judge that Order 4 Rule 1 and Order 4 Rule 6(2) was complied with by the Respondent was not impugned by the Appellant.
Counsel argued that the Respondent in this suit brought this action through his legal practitioner who complied with Order 4 Rule 6(2) of the Rules by providing his chamber’s address for service and therefore the contention of the Appellant that the address of the Respondent should be exhibited in the originating process is no longer tenable.
Counsel argued that the argument of the Appellant that the Respondent did not comply with form 1 as in the Appendix to the Rules of Court is completely wrong as non-compliance with the rules would amount to a mere irregularity insufficient to deprive the Court of jurisdiction. Counsel urged the view that it is not every irregularity that automatically nullifies a proceeding. Counsel cited: Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Sken Consult v Ukey (1981) 1 SC 6.
Counsel further argued vigorously that the days of the supremacy of technical justice over substantial justice is over and that this Court should be wary of enthroning technicality over justice. Counsel Cited: S.O Akegbejo& 3 others v. Dr. D.O Atega (Director Nifor) & 3 Others (1998) 1 NWLR (Pt. 534) 459 at 469; Ibori v. Agbi (2004) ALL FWLR (Pt. 202) Pg.1799 at 1845; Joe Surakatu v. Housing Dev. Society Ltd (1981) 4 SC 28, Ogbomor v. The State (1985) 1 NWLR Pt.2 Pg. 223.
OPINION
The learned trial judge held on this issue as follows on Pg. 105 of the Record:
”A Perusal of the writ, form 1 before the Court, clearly leaves one in no doubt that the writ was signed by the registrar. The writ before the Court bears the names of the plaintiffs as provided by Order 4 Rules 1.
Order 4 Rule 6 (2) provides that where a plaintiff sues through a legal practitioner, the legal practitioner shall state on the originating process his chambers’ address as the address of service. In the case at hand, the address of the legal practitioner is stated. I hold that the originating process in this suit is valid and competent and confers jurisdiction on the Court.”
I myself have looked at Page 4 of the Record where the claim in Suit no A/65/2012 dated 27/2/12 filed on 29/2/12 is set out. It was on page 3 duly issued by the Registrar whose signature was appended and on Page 4 by J.I Igu Esq, solicitor to the plaintiff of No.8 Nnamdi Azikwe Avenue, Awka. The complaint of the Appellant in essence is that the address of the Plaintiff/Respondent rather than his Counsel is what is mandatorily required by Order 4 Rule 1 and not that of counsel having regard to the form for commencement of action.
The Respondent’s counsel on the other hand is of the view that the signature and address of counsel for the plaintiff should suffice if we are not to cave under the yoke of technicality.
Order 4 Rule 1 of the High Court Civil procedure Rules 2006 provides as follows:
Every originating process shall contain the claim, the reliefs, or remedy sought and the full names and address of the plaintiffs (Underlining Mine)
Order 4 Rule 6 (2) of the High Court Civil Procedure Rules 2006 provides as follows:
Where a plaintiff sues through a legal practitioner, the legal practitioner shall state on the originating process his Chamber’s address as the address for service. If the legal practitioner is based outside the judicial division, he shall state as chamber’s address an address within the judicial division as his address for service.
I am of the humble view that since a private individual as plaintiff can cause a writ to be issued without the aid of a legal practitioner, more so since Section 36(6) (c) of the 1999 Constitution provides that a person may prosecute or defend a legal action in person or by counsel of his own choice, Order 4 Rule 1 shall apply mandatorily to a plaintiff who causes a writ to be issued without the aid of a legal practitioner. Such a litigant must surely be obliged to give his full name and address which would be needed for service.
I am aware that the order starts with the phrase ‘Every Originating process In the construction of a statute or rule of Court, no portion can or must be taken in isolation. A wholistic view of the legislation must be taken in order to ensure that the intendment of the legislature is what the Courts decipher and enforce. The writ in this case was endorsed by the legal practitioner of the plaintiff who put his initials and surname and his address for service. I am of the view that the maker of the rules would be satisfied with what has been done here. After all there is no confusion occasioned the defendant regarding the identity of the claimant.’ See: Abioye & Ors v. Yakubu & Ors (1991) 5 NWLR Pt. 190 Pg. 130; Osho v. Phillips (1972) 4 S.C 259.
I have read Order 5 Rule 1 in conjunction with Order 5 Rule 2 of the High Court Civil Procedure Rules 2006.
It appears to me that Order 5 Rule 2 has effectively neutralized Order 5 Rule 1 and even where there appears to be a mandatory requirement, that requirement even where there is an omission as to manner or form can be treated as an irregularity. Order 5 Rule 2 of the High Court Civil Procedure Rules 2006 provides as follows:
”Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirement as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judges may give any direction as he thinks fit to regularize such steps.”
I have to agree with learned Respondent’s counsel that the spirit of the law has changed for the better and that irregularity even if we concede that it exists here for the sake of argument must not be confused with total lack of jurisdiction.
In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Sken Consult v. Ukey (1981) 1 SC 6, it was stated that for a Court to have jurisdiction the following conditions must be present (a) the proper parties are before the Court (b) the subject matter falls within the jurisdiction of the Court. (c) The composition of the Court as to member and qualifications (d) the suit commenced by due process of law and upon fulfillment of any condition precedent to assumption of jurisdiction.
The current conventional wisdom is that noncompliance with the mandatory provisions of an act is fatal whereas noncompliance with the rules of Court may be an irregularity which can be waived depending on the peculiar circumstances of the case to meet the ends of justice. See: Surakatu v. N.H.D.S (1981) 4 SC 18.
As my Lord Agim JCA stated rightly in John Egesi & Ors v PDP & Ors (2014) LPELR-22487(CA), mandatory words or provisions in rules of Court as that contained in Order 4 Rule 1(1) of the Anambra State Rules are generally treated as permissive or directory and allow for discretionary enforcement. I am aware that there appears in Order 5 Rule 1(1) to be a sanction attached to noncompliance which in my view has been neutralized by Order 5 Rule 2. See Katto v. CBN (1991) 9 NWLR Pt. 214 Pg 126 at 147; Oloba v Akereja (1988) 3 NWLR Pt.84 Pg. 508.
It seems to me that learned Appellant?s counsel may have misunderstood the decision of this Court in Sylvester v. Ohiakwu (2014) 5 NWLR Pt. 1401 Pg. 467 at 507. In Sylvester v. Ohiakwu Supra this Court held that the legal consequences prescribed for the two types of noncompliance with the rules of Court under Order 5 of the High Court Rules of Anambra State are:
Noncompliance at the beginning or purporting to begin any proceedings as provided for in Order 5 Rule 1(1) which deals with the noncompliance with the provisions of Order 3. Noncompliance with the rules at any stage, in the course of or in connection with any proceedings, with the requirements as to time, place, manner, or form as provided under Order 5 Rule 1(2). While the former envisaged a noncompliance which occurs at the beginning of the process and the latter envisages noncompliance in the course of the process. The view of this Court is that noncompliance at the very beginning of the process cannot be condoned or corrected but the noncompliance that can occur and can be corrected in the course of the action can be condoned.
In Sylvester v Ohiakwu supra, the claimants in disobedience of the rules for commencement failed to frontload the witness statements on oath, statement of claim, list of witnesses, copies of documents to be tendered as required by Order 5 Rule 2(1) of the Rules. Agim JCA gave a very erudite judgment on the raison d?etre for the rules and why the trial Court should not have condoned the disobedience to the rules of commencement. His Lordship stated that any judicial discretion has to be exercised having regard to the purpose of the rules, the need to ensure that the noncompliance does not cause the other party injustice or bring the administration of justice to disrepute and the need to do substantial justice. My Lord was of the view that in the peculiar circumstances of that case, the condonation of such noncompliance will reverse all the gains made so far as a result of the introduction of the innovation of front loading the pleading and evidence in the High Court rules. My Lord rightly opined that it is such noncompliance that defeats the ends of justice and not the strict compliance with such rules.
In the circumstances of the case at hand, I am of the view that in the first instance there was substantial compliance with the rules by the legal practitioner who caused the writ to be issued who indicated his name and address. Even if one is of the view that both the names and address of the plaintiff and the legal practitioner are required by the rules, the nondisclosure of the names and address of the plaintiff in the column as required in the form would not be a violation of the rules that cannot be condoned. After all, I cannot see the confusion or gross miscarriage of justice caused to the Appellant by the failure to put the name and address of the plaintiff whose name in any event was already on the writ as the plaintiff.
In Nosiru Bello v. AG Oyo State (1986) 5 NWLR Pt. 45 Pg. 828, the Supreme Court held as follows:
”The picture of law and its technical rules triumphant, and justice prostrate may no doubt have its admirers. But the spirit of Justice does not reside in forms and formalities, nor in technicalities, nor is the triumph of the administration of justice to be found in successfully picking ones way between pitfalls of technicalities.
Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serves to render Justice grotesque or even lead to outright injustice. The Court will not endure that mere form or fiction of law, introduced for the sake of Justice, should work a wrong, contrary to the real truth and substance of the case before it.” See also: Obasi v Mikson Establishment Industries limited (2016) LPELR-40704(SC); Adeyemi v State (2014) LPELR-23062(SC); MFA & Anor v Inongha (2014) LPELR-22010(SC).
Finally, I, as opined earlier, I share the view of the Learned trial judge that there is nothing inherently irregular in the process filed by the Respondent’s Counsel to initiate the claim at the trial Court and I cannot grant the relief sought in this appeal to strike out the said suit.
In the circumstances, for reasons given above, this appeal is wholly without merit and it is hereby dismissed. The ruling of Hon. Justice Emembolu of the Anambra State High Court delivered on 18/11/13 is hereby affirmed. Cost of N100, 000 awarded to the Respondent against the Appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft the Lead Judgment prepared and delivered by my learned brother, the PJ., H. M. OGUNWUMIJU JCA. I agree entirely with His Lordship’s reasoning and conclusion which I humbly and respectfully adopt as mine. In this regard, I also hold that the Appeal lacks merit and the same is accordingly dismissed by me. Cost of N100,000 is awarded to the Respondent against the Appellant.
JOSEPH TINE TUR, J.C.A.: I agree.
Appearances:
Chinedu EzeobaFor Appellant(s)
I.A MaikoloFor Respondent(s)
