OKEZIE & ORS v. CBN & ORS
(2020) LCN/4925(SC)
In The Supreme Court
On Friday, February 07, 2020
SC.208/2012
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Paul Adamu Galumje Justice of the Supreme Court of Nigeria
Between
1. BONIFACE EBERE OKEZIE 2. RASHEED OLATUNDU 3. BASIL UBAH 4. WAHEED SONIBARE APPELANT(S)
And
- CENTRAL BANK OF NIGERIA 2. NIGERIA DEPOSIT INSURANCE CORPORATION 3. THE ATTORNEY GENERAL OF THE FEDERATION 4. MALLAM LAMIDO SANUSI 5. FUNKE OSIBODU (For Herself And Representing The Persons The 4th Respondent Appointed To The Board Of The 6th Respondent) 6. UNION BANK PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON ORIGINATING SUMMONS
It is to be reiterated that originating summons is one of the ways of initiating civil proceedings in the High Court which is intended to be used in limited situations specified in the Rules. It is ideal for use in actions involving mainly the construction and interpretation of documents. In the application of originating summons, one bears in mind that Rules of Court are to regulate matters in Court and assist parties in the presentation of their case within the procedure made for a fair and quick dispensation of Justice in the trial. Strict compliance with the rules makes for quicker administration of justice, while rules are made to attain justice with ease and certainty as a guiding fundamental principle, the Courts in the present dispensation lean strongly on the side of doing substantial justice. Therefore Rules of Court are designed for ensuring that justice is obtained by parties in the citadel of Justice. Rules of Court are to be complied with, observed and obeyed and non-compliance often are visited with sanctions of incompetency with the resultant effect of a striking out or dismissal in the prevailing circumstance. See Ossai v Wakwah (2006) All FWLR (Pt.303) 239 at 255; First Bank of Nigeria Plc v T.S.A. Industries Limited (2010) 15 NWLR (Pt.1216) 247 at 289 per Adekeye JSC; Auto Import Export v Adebayo (2002) 18 NWLR (Pt.799) 554 at 585 per Tobi JSC. PER PETER-ODILI, J.S.C.
THE PRINCIPLE TO BE APPLIED WITH REGARD TO ORIGINATING SUMMONS
It follows that the principle to be applied with regard to originating summons is that it includes either questions for determination or a statement of the reliefs sought.
Order 5, Rule 2 (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules which is in pari materia with the relevant English Rules states the principle expressly as follows:-
“An originating summons shall include a –
(a) Statement of the questions on which the plaintiff seeks determination or direction of the Court; or
(b) concise statement of the relief or remedy claimed…”
The Supreme Court has also confirmed it while interpreting the above provisions in the case of ANYANWOKO v OKOYE (2010) 5 NWLR (Pt.1188) 497. TABAI JSC, at page 514, paras. F-G, emphatically debunked the argument that an originating summons must contain questions for determination in the following statement:
“It is clear from the provision of Order 6, Rule 3 (1) (now Order 5, Rule 2 (1) that an originating summons should contain either a question or questions on which the plaintiff seeks the Court’s determination or direction, or concise statement of the reliefs or remedies claimed. The originating summons contain four reliefs… In my own view, these are concise statements of the reliefs or remedies within the meaning of the second ambit of Order 6, Rule 3 (1) of the Rules. I am therefore persuaded by the submission of learned counsel for the respondents that the originating summons is in substantial compliance with the Rules of the Court.” PER PETER-ODILI, J.S.C.
THE POSITION OF LAW ON THE DUTY OF THE COURTS
This Court has stated in a plethora of cases that the paramount duty of Courts is to do justice and not cling to technicalities that will defeat the ends of justice. It is more in the interest of justice that parties are afforded reasonable opportunity for their rights to be investigated and determined on the merit rather than that parties be shut out prematurely from being heard on the grounds of non substantial compliance with rules of Court. In the case of Obakpolor v State (1991) LPELR- 2148 (SC), this Court per Apata, JSC [of blessed memory) observed as follows:-
“… It is the paramount duty of Courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has occasioned a miscarriage of justice, the proceedings will not be nullified.” PER OKORO, J.S.C.
PAUL ADAMU GALUMJE, J.S.C. (Delivering the Leading Judgment): The 4th Respondent herein, Mallam Lamido Sanusi, who was then the Governor of Central Bank of Nigeria, on the 14th August 2009, issued an order removing all the executive Directors of the 6th Respondent, the Union Bank PLC and appointed the 5th Respondent, Funke Osibodu and others to replace them. Similarly, by the same order, the sum of one hundred and twenty Billion (N120 Billion) was injected into the 6th Respondent on the ground, that it was weak, undercapitalized and/or insolvent and therefore unreliable and an unsafe financial institution. The 4th respondent published his actions and accusations against the 6th Respondent which he threatened to turn over to the second Respondent, the Nigeria Deposit Insurance Corporation or sell it outrightly to foreign investors. As a result of the declared crisis in the 6th Respondent, its erstwhile directors who had been removed were handed over to the Economic and Financial Crimes Commission (EFCC) for investigation and possible recovery of depositors lost funds.
The Appellant herein, who are shareholders of the 6th Respondent approached the Federal High Court, Lagos, where they challenged the action of the 4th Respondent by taking out an originating summons, filed on the 23rd of October, 2009. In the originating summons, the Appellants did not raise any questions for answer, but set out the following claims: –
1. An order Granting leave to the applicants to bring an/this action IN THE NAME OR ON BEHALF OF the 7th Respondent.
2. A Declaration that the appointment of the 4th Respondent as the Governor of Central Bank of Nigeria is contrary to the Central Bank of Nigeria Act (and/or inimical to the interests of the 7th Respondent), null and void.
3. A Declaration that the purported sacking by the 4th Respondent of all the directors of the 7th Respondent and replacement of them with the 5th Respondent is unlawful being in breach of the Banks and other Financial Institutions Act and/or the Central Bank of Nigeria Act, ultra vires the 4th Respondent, null and void.
4. A Declaration that the 4th Respondent’s exposure of the affairs of the 7th Respondent to adverse publicity in the local and foreign media with the consequence or attracting against the 7th respondent the prejudicial and false conclusions of the ignorant and uninformed is unethical, unprofessional and a breach of the duty of confidentiality which the 1st and 4th respondents owe to the 7th Respondent under the Central Bank of Nigeria Act and/or the Banks and other Financial Institutions Act.
5. An Order restraining the 4th respondent from further parading himself as the Governor of the Central Bank of Nigeria.
6. An Order restraining the 5th respondents from further parading themselves or in any manner acting as directors or other officers of the 7th respondent.
7. An Order restraining the 1st and 4th respondents from further making any prejudicial statements about the 7th Respondent to the public through any medium and in any forum.
8. An Order directing an independent audit of the books of the 7th Respondent against all relevant parameters and fundamentals, particularly the relationship between its liabilities and its asset base.
9. An Order directing the 6th Respondent to forthwith give an account of and pay over to the 7th respondent all monies it has received for the account of the 7th Respondent without any deductions whatsoever and restraining it from further receiving to its account any monies paid to it for the account of the 7th Respondent.
10. An Order restraining the 4th Respondent from turning over or purporting to turn over the control and management of the 7th Respondent to the 2nd Respondent and restraining the 2nd Respondent from taking over or purporting to take over the control and management of the 7th Respondent.
11. An Order restraining the Respondents from discussing, negotiating or entering into any arrangement with any person, institution or authority, including themselves and the Federal Government of Nigeria to dispose of any share of the 7th Respondent or howsoever to transfer the 7th Respondent or its control and management or any asset of the 7th Respondent to any person, institution or authority, including any of themselves or the Federal Government of Nigeria.
12. An Order restraining the 1st and 4th Respondents from making any deductions from the account of the 7th Respondent with the 1st Respondent or entering any debits on the account against the sum of N12 Billion (or any other sum) which the 4th Respondent claimed to have injected into the account without the request or consent of the 7th Respondent.
13. An Order for the reversal and replacement to the 7th Respondent of any interests paid to the 7th Respondent on the said N120 Billion and restraining the 7th Respondent from further making any such interest payments to the 1st Respondent.
14. An Order restraining the 6th Respondent from further inviting, arresting, detaining, prosecution, or further threatening to invite, arrest, detain, prosecute, or otherwise further intimidating or harassing any customer of the 7th respondent in relation to any loan or facility enjoyed by that person from the 7th Respondent legitimately.
15. The sum of N100 Billion being damages for injury to the goodwill and business of the 7th Respondent both present and future arising from the unlawful conduct of the 1st, 5th and 6th Respondents.
The 6th Respondent in this appeal, was the 7th Defendant at the trial Court.
In response to the originating summons, the 1st, 2nd, 3rd, 4th, 5th, and 6th Respondents each filed a memorandum of conditional appearance and issued a Notice of preliminary objection challenging the competence of the suit and the jurisdiction of the Federal High Court to hear and determine the Appellants’ action.
The preliminary objection was heard and in a reserved and considered ruling delivered on the 16th June 2010, Nyako J. upheld the preliminary objection and struck out the suit on the ground that the originating summons did not contain questions for determination. This is what his lordship said:-
“Consequently, when an action is commenced by the originating summons procedure, there are no questions for determination under whatever rule, the served process cannot be competent.
When the originating processes on a suit are not competent, the Court has nothing to adjudicate on. The petitioner (Sic) suit commenced by originating summon’s which has no questions for determination is incompetent. I so find and hold consequently, there is no proper suit before this Court and, there is nothing to adjudicate on. The suit, being incompetent is thus struck out.”
Miffed by this ruling of the Federal High Court, Lagos, the Appellants appealed to the Court of Appeal, Lagos Division and submitted a lone issue for determination of their appeal. The lower Court heard the appeal and dismissed it for lacking in merit. The Appellants are again dissatisfied with the decision of the lower Court. Being aggrieved, they have brought this appeal. Their notice of appeal at pages 708-711 of the record of this appeal, filed on the 26th of January, 2012 contains one ground of appeal which I reproduce hereunder without its particulars, as follows:-
“The Court of Appeal erred in Law when it held that the originating summons of the plaintiffs/Appellants was bad for not containing formulated issues or questions for determination.”
Parties filed and exchanged briefs of argument. Mr. Chuks Nwachukwu, Learned Counsel for the Appellant formulated a lone issue for determination of this appeal and it reads as follows:-
“Whether the lower Court was right in its conclusion that the originating summons of the Appellants is incompetent and must be struck out for not containing questions for construction or determination.”
In arguing the appeal, Learned Counsel for the Appellants submitted that the lower Court erred in Law when it dismissed the Appellant’s appeal on the ground that the Appellants’ originating summons did not contain questions for determination. Learned Counsel cited in aid the format of originating summons in form 2 as provided in Rule 2(2) of the Companies Proceedings Rules 2001 (CPR) in support of the mode in which the Appellants commenced their action, and contended that the Form does not require that originating summons should have questions for determination when the claims are based on Companies and Allied Matters Act, (CAMA). In a further argument, Learned Counsel submitted that their action at the Federal High Court was a derivative action brought under Section 303 of the Companies and Allied Matters Act. Cap. C36, Laws of the Federation of Nigeria, 2004 and that such action under Rule 2(2) of the CPR is to be initiated with an originating summons, which does not contain questions or issues for determination.
In aid, Learned Counsel cited Agip (Nig.) Ltd v Agip Petroli International (2010) 5 NWLR (Pt.1187) 348. Still in argument, Learned Counsel submitted that it is clear that whether under the CPR or the Federal High Court (Civil Procedure) Rules, there is no basis for the conclusion of the two lower Courts that the originating summons of the Appellants is bad and must be struck out for not stating questions for determination. Learned Counsel made reference to Order 3 Rule 9 of the Federal High Court (Civil Procedure)Rules which provides that originating summons shall be as in Forms 3, 4 and 5 of these Rules with such variations as circumstances may require.
In reply Dr. K.U.K. Ekurueme leading Mr. Ahmad Belgore Esq., and other Learned Counsel for the Respondents submitted that the principal claims in the Appellants originating summons were not CAMA based, therefore, the Court of Appeal was right to have upheld the preliminary objection which was based on the submission that the provision of Rule 21 of the CPR limits the applicability or scope of the CPR to actions founded on any provision of any Section of part A of the Companies and Allied Matters Act. Learned Counsel differentiated the case of Agip (Nig.) Ltd v Agip Petroli International (Supra) and the instant case and contended that the facts are not the same. Learned Counsel submitted that the matter at the lower Court was decided on the basis of Order 3 Rules 6 and 7 of the High Court (Civil Procedure) Rules which rules show that an originating summons where a person relies upon in order to establish entitlement to a legal or equitable right must contain issues for determination. Learned Counsel conceded to the fact that Order 3 Rule 9(1) of the Federal High Court Rules provides for three forms, namely Forms 3, 4 and 5. Learned Counsel also concedes to the fact that Form 4, being a special form does not provide for questions for determination and therefore it is possible that the Federal High Court Rules accommodate Form 2 of the CPR, by virtue of form 4 in the Federal High Court Rules. However, Learned Counsel insists that Form 4 was not the appropriate Form to have been used for commencing the Appellant’s action. Finally, Learned Counsel urged this Court to resolve the sole issue in favour of the Respondents.
The Appellants’ claims as endorsed in the originating summons have been set out elsewhere in this judgment. I agree with the Learned Counsel for the Respondents that not all the claims of the Appellants are CAMA based. This therefore, makes it impossible for the originating summons to have been issued under the Companies Proceedings Rules which provides for issuing of originating summons as in Form, specified in the schedule to the Rules. The claims as constituted are not derivative actions as there are not claims against the directors of the 6th Respondent.
The decision of the lower Court to dismiss the appeal was based on Order 3 Rule 7 of the Federal High Court Rules 2009 and the case of Famfa Oil Ltd v Attorney-General of the Federation & Anor (2003) 18 NWLR (Pt.852) 453 and a host of other cases. Order 3 Rule 7 of the FHR 2009 provides as follows: –
“Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
There is clearly a provision in this Rule that has provided for the raising of questions in an originating summons before reliefs are claimed. However, this provision is not absolute. If the provision in Order 3 Rule 7 were absolute, the provision in Order 3 Rule 9(1) would have been unnecessary. This Rule provides as follows:-
“An originating summons shall be in the forms 3, 4 or 5 to these Rules, with such variations as circumstances may require.”
Learned Counsel for respective parties are ad idem that if a plaintiff desires to raise questions in his originating summons, he will resort to Form 3 which is a general form. However, a party who does not desire to raise questions in his originating summons can avail himself of the use of the special Form 4, as it is not necessary to raise questions in the originating summons. Form 5 is the requisite Form for ex-parte originating summons.
The Authority in Famfa Oil Ltd v Attorney-General of the Federation & Anor (Supra) and a host of other authority cited by the lower Court in support of its decision were decided under the Federal High Court (Civil Procedure) Rules 2000. Order 7 Rules 1 and 3 of the FHR 2000 made the following provisions: –
“7(1) The provisions of this order shall apply to all originating summons subject to any special provisions relating to originating summons under any enactment or Law (3) Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or as the case may be concise statement of the relief or remedy claimed in the proceeding began by the originating summons with sufficient particulars to identify the causes of action in respect of which the plaintiff claims that relief or remedy.”
The Federal High Court (Civil Procedure) Rules 2009 does not have such mandatory provision. Instead Order 3 Rule 9(1) of the Federal High Court Rules has given liberty to the plaintiff who is desirous of commencing an action by originating summons to choose between Form 3 and Form 4 depending on the circumstances of his case. If he chooses Form 4, he does not need to raise questions before setting out the reliefs which he seeks. I think there is sufficient provision in Order 3 Rule 9(1) of the Rules of the Federal High Court to sustain the originating summons of the Appellants at the trial Court. Justice clearly does not reside in the Form of the processes of the Court. Where there are sufficient provisions in the Rules of the Court to sustain an action the rules of natural justice demand that parties should be heard with a view to resolving their dispute once and for all. It is in the interest of justice that parties are not shut out prematurely from being heard in accordance with the laid down procedures in the Courts Rules. This Court in Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574 paraa F-G, made this point clear when it held:-
“Dismissal of an action in limine is the most punitive relief that a Court can grant to a defendant against the plaintiff. Because of its punitive nature, Courts of Law are reluctant or loath in granting it. In other words, Courts of Law cannot grant the relief for the mere asking on the part of the defendant. There must be legal basis for the request and corresponding legal basis for granting it.”
I am of the firm view that the trial Court was wrong in striking out the Appellants’ suit that was filed when the Federal High Court Rules 2009 had come into effect. The sole issue formulated by the Appellants is resolved in their favour and against the Respondents. For the reasoning I have set out herein above, this appeal shall be and it is hereby allowed. The case is remitted to the Chief Judge of the Federal High Court to be assigned to a Judge other than Nyako J. for trial.
The Respondents jointly and severally shall pay to the Appellants, the sum of N600,00.00 as costs of prosecuting this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Paul Adamu Galumje JSC and to underscore the support I have in the reasonings from which came about the decision, I shall make some comments.
This is an appeal against the decision of the Lagos Division of the Court of Appeal or Lower Court or Court below, Coram: K. B. Akaahs JCA (as he then was), L M, N. Saulawa and R. N. Pemu JJCA, delivered on the 19th day of January, 2012 dismissing the appeal of the appellants against the Ruling of the Federal High Court, Lagos Division, per Nyako J, delivered on the 16th day of June, 2010 striking out the appellants’ suit on the ground that the originating summons through which the action was commenced did not contain any questions for determination by the Court.
The details of the facts leading to this appeal are well set out in the lead judgment and no useful purpose would be derived repeating them except for when the occasion warrants a reference to any part thereof. At the hearing of the appeal on the 12th day of November 2019, learned counsel for the appellant, Mr. Chuks Nwachukwu adopted the brief of argument filed on 21/6/2012 in which it was raised a single issue for determination, viz:-
Whether the Lower Court was right in its conclusion that the originating summons of the appellants is incompetent and must be struck out for not containing questions for construction or determination.
For the 1st respondent, learned counsel, Olanrewaju A. Osinaike Esq- adopted the brief of argument filed on 14/8/12 and an additional list of authorities filed on 12/11/19 and equally adopted the sole issue crafted by the appellant.
Hameed Ogunbiyi, learned counsel for the 2nd respondent adopted the brief of argument settled by Anozie Douglas Benson Esq, and filed on 27/8/12. He crafted a single issue for determination which is as follows:-
Whether the Lower Court was right in affirming the decision of the trial Court that the appellants’ originating summons was incompetent for not containing questions for determination.
Learned counsel for the 3rd respondent, Adekunle Aribisala Esq. adopted the brief of argument settled by Olufunke Aboyade and filed on 4/9/2012 and framed a single issue, viz:-
Whether the appellants’ originating summons is incompetent for not containing questions for construction or determination.
Dr. K. U. K. Ekwueme adopted the brief of argument of the 4th, 5th and 6th Respondents filed on 3/10/12 in which was formulated a single issue as follows:-
Whether the Lower Court was right in dismissing the appellants’ appeal against the Federal High Court’s decision striking out the appellants’ originating summons on the ground that it did not contain questions for determination.
The sole issue individually crafted by the parties ask the same question which is thus:-
SOLE ISSUE:
Whether the Appellants’ originating summons is incompetent for not containing questions for determination.
Advancing the stance of the appellants, learned counsel submitted that it is a misconception which the two Courts below fell into that without questions for determination, the originating summons is incompetent in the light of Order 3 Rule 9(1) of the Federal High Court Rules and the operating Forms. He cited Anyanwoko v Okoye (2010) 5 NWLR (pt.1188) 497 at 514. Learned counsel for the 1st respondent stated that the Court below was right when it came to the conclusion that having regard to the several reliefs claimed by the appellants which were not confined to reliefs under the Companies and Allied Matters Act, the applicable Rule was Order 3, Rule 7 of the Federal High Court (Civil Procedure) Rule and not Rule 2 (2) of the Companies Proceedings Rules as contended by the appellants.
That it is mandatory for an Originating summons brought pursuant to the Federal High Court (Civil Procedure) Rules to state the questions for determination which will give rise to the reliefs sought. That the provisions of the Rules in this instance is fundamental in this particular case such a rule must be complied with strictly by parties. He cited First Bank of Nigeria Plc v T.S.A. Industries Limited (2010) 15 NWLR (Pt.1216) 247 at 289; Auto Import – Export v Adebayo (2002) 18 NWLR (Pt.799) 554 at 585.
For the 2nd respondent, it was submitted that the proper and careful evaluation of the reliefs sought by the appellants in their originating summons at the trial Court reveals that the action of the appellants is not simply a derivative action as argued by the appellants and so the Rules under the Companies Proceedings Rules are not applicable herein rather it is Order 3, Rule 7 of the Federal High Court (Civil Procedure) Rules 2009 and so without the questions, the originating summons is incompetent.
He referred to Obasanya v Babafemi (2000) 15 NWLR (Pt.689) 1 at 17.
Learned counsel for the 3rd respondent submitted that it is trite law that an originating summons must contain questions for construction or determination of a Court. He cited Famfa Oil Limited v Attorney-General of Federation & Anor. (2003) 18 NWLR (Pt.852) 453 at 467; Pam v Mohammed (2008) Vol. 40 WRN 67 at 147.
The arguments of learned counsel for the 4th, 5th and 6th respondents were along the same lines as those of the other respondents and to the effect that the two Courts below were right to hold that the originating summons was incompetent.
The angle presented by the appellant is that no matter the Rules, either of the Companies Proceedings Rules (CPR) or the Federal High Court Civil Procedure Rules, FHCPR the conclusion of the two Courts below is erroneous in that it is that the originating summons of the appellants is bad and must be struck out for not stating questions for determination. That there is need for this Court to state emphatically what the correct position is and that is that the absence of the questions for determination has not rendered the Originating Summons defective.
That stance of the appellant is strongly opposed by the respondents who are of the view that the originating summons on account of the failure to raise the questions for determination is by that defect incompetent.
A refreshing of the memory from what brought about the circumstances which culminated in this appeal is necessary. That is to say, that on the 14th August 2009, the 4th respondent acting as the Governor of Central Bank of Nigeria issued an order removing all the executive directors of the 6th respondent and appointed the 5th respondent in their place. Simultaneously, he by the same fiat injected the sum of N120 billion into the bank which he accused of being weak, undercapitalized, and/or insolvent, and therefore an unreliable and unsafe financial institution.
The 4th respondent published his actions and accusations against the 6th respondent in a sustained campaign in the print and electronic media nationally and internationally.
In the publications, he made it clear that he would sell the 6th respondent and other affected banks to new foreign based investors swearing that he would even return the bank to its registered shareholders.
Meanwhile, on the instigation of the 4th respondent, the Economic and Financial Crimes Commission (which was the 7th respondent on the originating summons but was struck off the appeal in the Court below when it failed to appear and its absence was stalling proceedings) went after the customers of the bank, arresting and detaining them and thus coercing many of them to cough out huge sums of money as repayments of loans granted to them by the bank.
However, monies being thus recovered by the EFCC were never paid over to the bank or 6th respondent which the 4th respondent continued to denounce as being insolvent.
The 4th respondent also threatened to turn over the 6th respondent to the 2nd respondent, (a statutory receiver and liquidator) or even nationalize the bank if he was not allowed to carry out his desire to dispose of the bank to the purported foreign investors whom the appellants believed were his cronies.
The appellants being shareholders of the 6th respondent and who did not believe that the actions of the 4th respondent were bona fide and/or in accordance with the law filed an originating summons under Section 303 of the Companies and Allied Matters Act (CAMA) and Rule 2 of the Companies Proceedings Rules seeking leave of the Court to challenge the action of the respondents on behalf of the 6th respondent i.e. by way of as derivative action.
On 16/03/10, the appellate Court raised an issue already raised and argued on the notices of preliminary objection filed by the respondents and the reply of the appellants thereto, viz, the non statement of questions for construction or determination on the body of the originating summons, and ordered that parties should address her again on the issue.
On 16/06/10, the trial Court gave a Ruling striking out the originating summons for not containing questions for determination. The appeal of the appellants to the Court below was equally dismissed.
At the Court below, the 1st respondent filed a notice of cross-appeal which it subsequently abandoned in reciprocation of the appellants abandoning the 2nd ground of appeal and 2nd relief on the notice of appeal to that Court which had called for judgment on the originating summons in favour of the appellants under Section 15 of the Court of Appeal Act.
The Court below in the lead judgment, delivered by Akaahs JCA (as he then was) held thus:-
“The dispute that has arisen is not limited to the operation of the Companies and Allied Matters Act but the action taken by the Governor of the Central Bank in sacking the entire Board of Directors of Union Bank Plc and replacing it with his own nominees and taking other measures to undermine the power of the shareholders such as threatening to place the bank under liquidation and using unorthodox means to recover loan facilities granted to the bank’s customers and injecting funds into the bank.”
Order 3, Rule 7 of the Federal High Court (Civil Procedure) Rules 2009 provides thus:-
“Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
Also to be brought to the fore is Order 3, Rule 6 of the Federal High Court (Civil Procedure) Rules 2009 which provides as follows:-
“Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.”
It is to be reiterated that originating summons is one of the ways of initiating civil proceedings in the High Court which is intended to be used in limited situations specified in the Rules. It is ideal for use in actions involving mainly the construction and interpretation of documents. In the application of originating summons, one bears in mind that Rules of Court are to regulate matters in Court and assist parties in the presentation of their case within the procedure made for a fair and quick dispensation of Justice in the trial. Strict compliance with the rules makes for quicker administration of justice, while rules are made to attain justice with ease and certainty as a guiding fundamental principle, the Courts in the present dispensation lean strongly on the side of doing substantial justice. Therefore Rules of Court are designed for ensuring that justice is obtained by parties in the citadel of Justice. Rules of Court are to be complied with, observed and obeyed and non-compliance often are visited with sanctions of incompetency with the resultant effect of a striking out or dismissal in the prevailing circumstance. See Ossai v Wakwah (2006) All FWLR (Pt.303) 239 at 255; First Bank of Nigeria Plc v T.S.A. Industries Limited (2010) 15 NWLR (Pt.1216) 247 at 289 per Adekeye JSC; Auto Import Export v Adebayo (2002) 18 NWLR (Pt.799) 554 at 585 per Tobi JSC.
The factors at play in the case under discourse show that the action being a derivative one in which the appellants are seeking leave to bring the action in the name and on behalf of the 6th respondent, a limited liability company, it is imperative that the requirement of Rule 2 (2) of the Companies Proceedings Rules be brought by originating summons with the utilisation of the prescribed Forms 1 and 2 in the Schedule to the Rules which require only that the reliefs sought on the originating summons be stated. This was the position put in place by this Court in Agip (Nig.) Ltd v Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 per Adekeye JSC at page 393.
The Court below in this instance found rightly that the applicable Rules are under the Companies and Allied Matters Act and so it is the said Form 2 of the Rules that apply which do not require questions to be framed for determination on the body of the originating summons in the light of the reliefs sought which is thus:-
“An order granting leave to the applicants to bring this action in the name or on behalf of the 7th (now 6th) respondent bank.”
I agree with learned counsel for the appellant that it is also discernible from the judgment of the Court of Appeal that it seemed to have been of the impression that where a Declaration is sought as a relief, ipso facto there must be formulated questions for determination in the originating summons in answer to which the declaration would be made, and that Form 2 of the CPR and Form 4 of the FHCPR are inapposite or inapplicable for that reason. In the respectful view of the appellant, this is another misconception. A declaration can be sought and granted in an action commenced by writ of summons and there is no requirement that questions for determination be formulated on the writ, all that is required is that the reliefs sought be stated just as in Form 2 of the CPR and Form 4 of the FGCPR. There is therefore no foundation for the view that questions for determination must be formulated in the action before the Court can grant a declaration of right or give a construction of an enactment within it or that a declaration of right or construction of an enactment cannot be made upon Form 2 of the CPR or Form 4 of the FHCPR.
Indeed, the two Courts below seem to have laboured under a misconception that under the Federal High Court (Civil Procedure) Rules, FHCPR, an originating summons must contain questions for determination particularly where it seeks a Declaration or raises issues of construction of an enactment or statutory instrument. I shall quote the words of Order 3, Rules 6 – 8 of the FHCPR which are as follows:-
“6. Any person claiming to be entitled under a deed, will, enactment or other written instrument MAY APPLY by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, MAY APPLY by originating summons for the determination of such questions of construction for a declaration as to the right claimed.
8. A judge shall not be bound to determine such question of construction if in the judge’s opinion, it ought to be determined on originating summons but may make such orders as the judge deems fit.”
(Underlining mine).
The contention of the appellant that on a surface reading, the underlined portions of the provisions would seem to suggest that the questions for determination or construction should or must be stated on the body of the originating summons. But this is, with all due respect, a rather simplistic view of the matter. This is because immediately following Order 3 Rule 9(1) of the Rules states that:-
“(1) An originating summons shall be in the Forms 3, 4 or 5 to these rules, with such modifications or variations as circumstances may require.”
There is a need to keep the focus on the substantiality of justice and so each of these forms is valid as an originating summons for the determination of any question of right or of construction under an enactment. Form 3 makes provision for the formulation of questions for determination or construction while the other Form 2 only make provision for the statement of reliefs sought. Form 3 does not make any provision for the statement of reliefs sought in the action; it would seem to be complete with the statement of the questions. But it would be wrong to suggest that no other reliefs could be sought using that Form beyond determining the questions stated. In the same manner, it is a misconception to argue or suggest that no questions or issues of right or construction (on the basis of determined) may be determined on originating summons using either of the other Form 4 or Form 5 for the reason that such questions are not stated on the summons. As has been argued above, an action upon writ of summons may call for the determinations of questions of right or summons may call for the determinations of questions of right or construction of an enactment and so all that is required, in terms of claim for reliefs is that the reliefs sought be stated.
It follows that the principle to be applied with regard to originating summons is that it includes either questions for determination or a statement of the reliefs sought.
Order 5, Rule 2 (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules which is in pari materia with the relevant English Rules states the principle expressly as follows:-
“An originating summons shall include a –
(a) Statement of the questions on which the plaintiff seeks determination or direction of the Court; or
(b) concise statement of the relief or remedy claimed…”
The Supreme Court has also confirmed it while interpreting the above provisions in the case of ANYANWOKO v OKOYE (2010) 5 NWLR (Pt.1188) 497. TABAI JSC, at page 514, paras. F-G, emphatically debunked the argument that an originating summons must contain questions for determination in the following statement:
“It is clear from the provision of Order 6, Rule 3 (1) (now Order 5, Rule 2 (1) that an originating summons should contain either a question or questions on which the plaintiff seeks the Court’s determination or direction, or concise statement of the reliefs or remedies claimed. The originating summons contain four reliefs… In my own view, these are concise statements of the reliefs or remedies within the meaning of the second ambit of Order 6, Rule 3 (1) of the Rules. I am therefore persuaded by the submission of learned counsel for the respondents that the originating summons is in substantial compliance with the Rules of the Court.”
The forms prescribed in the various rules of Court for originating summons are in furtherance of this principle. HALSBURY’S LAWS OF ENGLAND, 4TH EDITION, VOL.37, Pg.96, Paras 127-135 at Para. 131 under the title “Forms of Originating Summons” states as follows:-
“Every Originating Summons must be in such of the prescribed forms as is appropriate. There are three such prescribed forms, namely the general form, which is ordinarily used in proceedings inter parties, an expedited form, which is used where it is authorized or required by the rules to be used, and an ex parte originating summons. In addition, there is a prescribed form of originating summons which is to be used in summary proceedings for the possession of land.”
The general form is Form 3 of the FHCPR- the form requires the formulation of questions for determination or construction. The expedited form is Form 4 – this form requires only a statement of the reliefs sought, and Form 5 of the FHCPR is the ex parte originating summons. Order 3, Rule 9 of the FHCPR does not expressly state the principle that originating summons should contain either questions for determination or a statement of the reliefs sought but it is beyond dispute that by prescribing the same forms which embody the principle it has incorporated it. And from the statement of law from Halsbury’s Laws of England, we understand that under English law the general form is the form that is commonly used as either of the other two forms is used only where it is authorized or required as in the Rule 2 (2) of the CPR which mandates the use of Form 2 thereto which in turn is substantially the same as Form 4 of FHCPR. Clearly, whether under the CPR or under the FHCPR there is no basis for the conclusion of the two Courts below that the originating summons of the appellants is bad and must be struck out for not stating questions for determination.
For effect, it is certain that the two Courts below went the wrong way in reaching their conclusion and a miscarriage of justice ensued in the erroneous application of the procedural law or Rules hence the necessity for this Court’s intervention and to come against concurrent findings of fact of two Courts.
Therefore I find merit in this appeal and from the foregoing and the better articulated lead judgment, I too allow the appeal.
I abide with the consequential orders made.
Appeal Allowed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Galumje, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is meritorious and should be allowed. I too will allow the appeal.
I abide by the consequential orders in the lead judgment including order on costs.
Appeal allowed.
JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in draft form, the erudite lead judgment rendered by my learned brother, Paul Adamu Galumje, JSC. I have found the reasoning and conclusion expatiated therein agreeable to my understanding of the law and the subject. I adopt them, with respect, as mine.
It is correct that under the Federal High Court (Civil Procedure) Rules 2009, particularly Order 3 Rule 9(1), the plaintiff is afforded the liberty of commencing his action pursuant to either form 3 or form 4. Where he chooses form 4, he may not have to raise the questions for determination before setting out the reliefs which he seeks. It was therefore wrong for the learned trial Court to shut out plaintiff in limine from substantial justice based on perceived incompetent processes.
This Court has stated in a plethora of cases that the paramount duty of Courts is to do justice and not cling to technicalities that will defeat the ends of justice. It is more in the interest of justice that parties are afforded reasonable opportunity for their rights to be investigated and determined on the merit rather than that parties be shut out prematurely from being heard on the grounds of non substantial compliance with rules of Court. In the case of Obakpolor v State (1991) LPELR- 2148 (SC), this Court per Apata, JSC [of blessed memory) observed as follows:-
“… It is the paramount duty of Courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has occasioned a miscarriage of justice, the proceedings will not be nullified.”
In this appeal, I find that the Federal High Court (Civil Procedure) Rules 2009 had afforded the plaintiff a variation of choices regarding which Form to use in commencing his case. The Courts below were therefore wrong to pit his action in the provision of Order 3 Rule 7 alone.
On the final analysis, I am of the firm view that there is merit in this appeal. Same is hereby allowed by me. I endorse the Order that the case be remitted to the Chief Judge of the Federal High Court for reassignment to a Judge other than Nyako J. for trial. I also abide by the order as to costs.
Appeal Allowed.
AMINA ADAMU AUGIE, J.S.C.: My learned brother, Galumje, JSC, who just delivered the lead Judgment, dealt extensively with the issues canvassed by the Parties, and I agree entirely with his reasoning and conclusion, which represents my views on all the Issues.
It is on that premise that I also allow this Appeal. I also abide by all the consequential Orders in the lead Judgment including the order as to costs.
Appearances:
- CHUKS NWACHUKWU For Appellant(s)
- OLANREWAJU OSINAIKE, with him, CHIMA OKEREKE and RAPHAEL IPINYOMI – for 1st Respondent
MR. HAMID OGUNBIYI – for 2nd Respondent
MR. ADEKUNLE N. ARIBISOLA – for 3rd Respondent
DR. K. U. K. EKWUEME, with him, ABDULKADIR MUSTAPHA and BABATUNDE IGE – for 4th, 5th and 6th Respondents For Respondent(s)
