SPOG PETROCHEMICALS LIMITED & ANOR v. PAN PENINSULA LOGISTICS LIMITED
(2017)LCN/9445(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 1st day of February, 2017
CA/L/23/2016
RATIO
ACTION: REASON FOR PRE-ACTION NOTICE
Admittedly, the purport of the said memorandum is to set out claims of a claimant against the defendant and the discretion to settle them amicably without the need to go to trial. PER MOHAMMED LAWAL GARBA, J.C.A.
COURT: THE DUTY OF COURT TO DO SUBSTANTIAL JUSTICE
Learned counsel for the Appellant has challenged the position of the High Court that it is in the interest of justice to decide the matter on the merit than to cling to technical rules which would only delay the determination of the of the real dispute between the parties. All that needs be said is that the decision by the High Court on the Appellant’s objection as borne out at page 84 of the Record of Appeal was based on the finding that there has been substantial and sufficient compliance with its Rules and that the original process was competent. The interest of justice or substantial justice referred to by the High Court in the Ruling was in passing and borne out by the preamble to the 2012 Rules that enjoins the Court in the application of the Rules, to be guided by the need to do substantial justice to the parties expeditiously. After all, the primary object of all Rules of procedure and practice and primary duty of all Courts of law is the doing and attainment of substantial justice on the merit of the cases presented before them by the parties.
It was the Apex Court that had warned many years ago in the case of Nwosu vs. State (1990) SCNJ, 97, that parties to a case would not be permitted by the Courts to pick their ways through or by use of technical rules of procedure, the breach of which does not occasion a miscarriage of justice, in order to cause inordinate delays or frustrate the timely disposal of cases on the merit. Although Rules of Courts are meant to be obeyed or complied with in the initiation and prosecution of matters in the Courts, as aids and not masters to the Courts, the Rules are to guide the Courts in the determination of the rights of the parties on the merit and not to be used to punish them for innocent mistakes or inadvertence of their counsel in the presentation or prosecution of the cases. Depending on the peculiar facts and circumstances of a case, generally, Courts would be guided by the need to do justice rather than strict adherence to rules which impede expeditious determination of the rights and obligations of the parties within a reasonable time. Nneji vs. Chukwu (1988) 6 SCNJ 132; (1988) 3 NWLR (1981) 184. Aisthom vs. Saraki (2000) FWLR (1928) 2267. PER MOHAMMED LAWAL GARBA, J.C.A.
PRACTICE AND PROCEDURE: THE POSITION OF THE LAW ON SIGNING OF PRE-ACTION PROTOCOL FORM
Section 113 of the Evidence Act 2011, which is in pari materia with the Section 84 of the Evidence Act, 1990, provides that a Court can make use of an affidavit which is defective in form if satisfied that the affidavit was sworn to before a Commissioner for Oaths. See IJAODOLA vs. REGISTERED TRUSTEES C. & S.C. M. (2006) 4 NWLR (PT. 969) 159 and UDESEGBE vs. SPDC NIG. LTD (2008) 9 NWLR (PT. 1093) 593 at 603 & 604.
The Appellants complaint in this appeal inter alia is about the form of the Respondent’s Protocol Form 01 filed with the writ of summons. The defect complained about by the Appellants is that the natural person who deposed to the Protocol Form 01 on behalf of the Respondent, an artificial person, did not state his name. This is a defect in form which does not affect the substance of the Protocol Form 01. Therefore upon being satisfied that the affidavit was sworn before a Commissioner for Oaths, the lower Court was right to allow the use of the said Protocol Form 01, notwithstanding the said defect in form.
Furthermore, the Rules of Court provide the sanction for non-compliance with Order 3 Rule 2 (1) of the Lagos State High Court Civil Procedure Rules 2012 (which provides for the Protocol Form 01), and the sanction is that the Registry of Court shall not accept the originating Process for filing. The sanction is definitely not for the writ to be invalidated. Where the Registry fails in its duty and accepts an originating process which does not fully comply with Order 3 Rule 2 (1), the failure of the Registry will not affect the validity and competence of the originating process. It will be a mere irregularity. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. SPOG PETROCHEMICALS LIMITED
2. BASHORUN JIDE OMOKORE Appellant(s)
AND
PAN PENINSULA LOGISTICS LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Respondent had taken a writ of summons at the Registry of the High Court of Lagos State in suit No. LD/165CMW/15 against the Appellants claiming the sum of Seven Hundred and Fifty-Five Thousand Dollars ($750,000.00) being the balance for the vehicles supplied to the Appellants by the Respondent.
A conditional appearance was entered for the Appellants and a notice of preliminary objection dated the 9th of October, 2015 was filed challenging the competence of the suit. The objection was premised on the following grounds: –
(a)That the pre-action protocol form 01 which is an affidavit attached to writ of summons filed by the Respondent was deposed to by the Respondent which is not a natural person.
(b)That the Respondent failed to set out its claims and an option for settlement in the written memorandum filed along with the pre-action protocol Form 01.
After hearing arguments from counsel on the objection, the High Court in a Ruling delivered on the 18th of December, 2015 dismissed it and held that the suit is competent.
?Not satisfied with the
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Ruling, the Appellants brought this appeal by the Notice of Appeal filed on the 30th of December, 2015 on two (2) grounds from which two (2) issues were submitted for determination in the Appellant’s brief filed on the 22nd of January, 2016. The issues are: –
?(i) Whether the Pre-Action Protocol Form 01 attached to this suit which was deposed by the Respondent which is not a natural person but signed by an unknown natural person is competent (Ground 1 of the Notice of Appeal).
(ii) Whether the failure of the Respondent to issue a Written Memorandum to the Appellants setting out its claims and an option for settlement in compliance with Order 3 Rule 2(1)(e) of the High Court of Lagos State (Civil Procedure) Rules, 2012 renders the suit incompetent (Ground 2 of the Notice of Appeal).?
A sole issue is said to arise for decision in the Respondent’s brief filed on the 26th of February, 2016 in the following terms:-
?Whether there was substantial compliance with the provision of Order 3 Rule 2(1) (e) of the High Court Rules, 2012.”
Looking at the grounds of appeal, the complaint in them is that there was non-compliance with
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the mandatory provisions of Order 3 Rule 2(1)(e) of the High Court Rules, 2012 in respect of the Pre-action Protocol Form 01 and the written memorandum to accompany the writ of summons in the action commenced by the Respondent. The germane issue which calls for decision in the appeal is therefore: –
?Whether the High Court was right that the Respondent’s writ of summons has substantially and sufficiently complied with provisions of Order 3 Rule 2(1)(e).?
I intend to use this issue, which is similar to the Respondent’s issue, in the determination by the appeal as it subsumes the two (2) issues raised by the Appellants.
Appellant’s Arguments
It was submitted that the Pre-action Protocol Form 01 which is mandatorily required by Order 3 Rule 2(1)(e) of the High Court Rules, 2012, was signed by unknown natural person. Sections 115(1), 117(1), (4) and 119 of the Evidence Act, 2011 were cited and it was argued that an affidavit can only be signed by natural persons and that a corporate body such as the Respondent cannot depose to an affidavit as was done in the Pre-action Protocol Form 01 to commence the suit before the High Court.
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Relying on Agip Nigeria Limited vs. Agip Petroleum International (2010) 5 NWLR (1187) 348 @ 413, it was said that the High Court was wrong to have speculated on who signed the Pre-action Protocol Form 01 since the name is not stated thereon. Ikenyi vs. Ofume (1985) 2 NWLR (2005) 1 @ 13 and UTB Nigeria vs. Ozomena (2007) 2 NWLR (1022) 448 @ 489 were also referred to.
In further arguments, it was submitted that the Respondent also failed to issue memorandum to the Appellants setting out its claims and an option for settlement before initiating the suit. According to counsel, the requirement of such memorandum is a condition precedent to the commencement of the suit and non-compliance therewith should have led to the striking out of the suit. Aluta IV vs. Ngene (2002) 1 NWLR (748) 278 at 300 and NNPC vs. Tijani (2001) 17 NWLR (1007) 29 @ 45 were cited for the submission and it was contended on the authority of Dada vs. Dosunmu (2006) 18 NWLR (1010) 134, 166, that the High Court was wrong to have dismissed the objection on ground of doing substantial justice when there was failure to comply with a condition precedent. The cases of Abe vs. Skye Bank (2015) 4
4
NWLR (1450) 572 @ 532 and Sylvester vs. Ohakim (2014) 5 NWLR (1401) 467 @ 500 were referred to and it was further argued that failure by the Respondents to comply with the Rule of the Court “nullifies the proceeding.?
In conclusion, the Court is urged to allow the appeal and strike out the Respondent’s suit.
Respondents’ Arguments:
It was submitted that the Rules did not prescribe a particular format for the written memorandum to be filed along with the Pre-action Protocol Form 01 and that any written statement setting out the particulars of the proposed claim would be in compliance with the Rules whose purpose is to give sufficient notice of the claim to a defendant.
In addition, it was argued that since the Pre-action Protocol Form 01 is one used prior to the commencement of an action, even if there was any prescribed format for it, failure to comply with it, would not be fatal to the action. Furthermore, it was submitted that the letters attached to the Form 01, particularly the letter dated 22nd day of October, 2014, shows that the Respondent duly informed the Appellants of its intention to sue to recover the debt owed it by them in
5
the event they failed to pay as demanded in the letter. The letters are said to have satisfied the requirement of the Rules of the High Court and the Court is urged to so hold.
In the alternative, it was submitted that the defect, if any, complained of by the Appellant was a mere irregularity which was not grave in nature to have the effect of rendering the suit incompetent and reliance was placed on Ibrahim vs. Habu (1993) 5 NWLR (295) 581.
It was also the case of the Respondent that the law is settled that the Courts must beware of undue technicalities as their duty is to ensure that substantial justice is done in a matter without adherence to such technicalities and the case of Fidelity Bank Plc. vs. Manye (2012) All FWLR (631) 1412 @ 1442 was cited for the position.
It was then argued that the Respondent being a corporate legal entity, can only act through natural persons and cannot sign a process itself, on the authority of Trenco Company Nigeria vs. African Real Estate & Invest Company (1978) LPELR 3264, SC. So it was contended that the Respondent’s process signed by natural persons is in line with the law and that in any case, Section
6
113 of the Evidence Act, allows a Court to use an affidavit, notwithstanding that it is defective if it is satisfied that it was duly sworn to before a person authorized to take Oaths.
The Court is urged to dismiss the appeal.
At the centre of the objection by the Appellants, which is the substratum of this appeal, is the provision of Order 3 Rule 2(1) (e) of the High Court of Lagos State (Civil Procedure) Rules, 2012, which says:-
?1. All civil proceedings commenced by writ of summons shall be accompanied by:
(e) Pre Action Protocol Form 01 and a written Memorandum.”
The complaint is that the Pre-action Protocol Form 01 was signed by unknown natural person for the Respondent which is a corporate body and it is argued that on that ground, the suit is rendered incompetent.
I have seen the said Pre-action Protocol Form 01 which appears at page 1 of the Record of Appeal and there is no doubt, nor can there be any dispute that the form contains a signature at the deponent column without any name ascribed to it. However the depositions are said to be made by the Respondent and sworn to before a Commissioner for Oath. As the
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title of the Form shows, it is a statement of compliance with pre-action protocol in the filing of suit before the High Court. As can be seen from the provisions of Order 3, Rule 2(1), the Form is one of the items or processes that are to accompany a writ of summons which is the initiating process used to commence a suit before or in the High Court. The other processes listed under the Sub-rule (1) are: –
“(a) A statement of claim;
(a) A list of witnesses to be called at the trial;
(b) Written statement on oath of the witnesses except witnesses on subpoena;
(c) Copies of every document to be relied on at the trial.?
So the requirement of the Rule 2(1) is that a writ of summons to be used for the commencement of an action before the High Court is to be accompanied by the aforementioned processes as compliments to provide the essential and material facts and piece of the evidence to be used by the claimant in the case against the defendant. The requirement of the Pre-action Protocol Form 01 is only a statement that the other processes for the commencement of the action have been filed in accordance with the Rules of that Court.
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Clearly, the Form 01 has nothing to do with the validity or competence of writ of summons which it is to accompany or the suit commenced thereby. The fact that the Form was sworn to before a duly authorized Commissioner for Oath and signed by the person who swore to the facts contained therein, substantially complies with the requirement of the statement in the Form, the fact of making the statement in the name of Respondent notwithstanding. Form 01 is not alone a condition precedent for the commencement of an action by writ of summons but as stipulated in the Sub-rule to accompany the writ. In any case, Sub-rule (2) of 3 provides for the consequence of failure to comply with the provision of Sub-Rule (7) by saying that:
“Where a claimant fails to comply with Rule 2(1) above, the originating process shall not be accepted for filing by the Registry.?
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
9
therein, it shall not be accepted for filing by the Registry. However, once accepted and assessed by Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of any non-compliance with the provisions cannot go to affect the validity and competence of the writ.
In addition, the High Court is entitled to look at, consider and compare the signature on the Form 01 with signatures on other processes filed along with the said Form 01 and which together, accompany the writ of summons in compliance with the provisions of the Rule 3(2) (1) in order to determine whether the Form 01 was signed by any identifiable person, for the Respondent. Physical comparison of the signatures on the processes before the High Court was not speculation on its part and it has the right to look at processes duly filed and brought before it. Agwarangbo vs. Nakande (2000) 9 NWLR (672) 341: N.I.C. vs. Aminu (2012) 8 NWLR (1302) 330: Dagazau vs. Bokir International Company Limited (2011) 14 NWLR (1267) 261. The High Court was right in law to have held that: –
?Affidavit or Form 01 is not filed in isolation but filed as an accompanying
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process to the originating and other Frontloaded documents. See Order 3 Rule 2(1) of the Rules of this Court which provides thus:
(1) All civil proceedings commenced by writ of summons shall be accompanied by;
(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) Copies of every document to be relied on at the trial;
(e) Pre-action Protocol Form 01.
As such, in the view of this Court, the said Form 01 cannot be viewed in isolation but must be viewed or taken in conjunction with all the Front-loaded processes.
This Court so holds.?
And then proceeded to look at the processes which accompanied the writ of summons being challenged by the Appellants’ objection.
In any case, even taken to be an affidavit, the defect in Form 01 would not go to affect the validity and competence of the writ of summons which it accompanies by dint of the provisions of Section 113 of the Evidence Act, 2011, as rightly pointed out by the learned counsel for the Respondent. The Section provides that: –
?The Court may permit an
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affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.?
The Appellants did not even suggest let alone challenge the fact that Form 01 was sworn before a person duly authorized and the further fact that the High Court permitted it to be used, shows clearly that it was satisfied that the Form was so sworn. This would appear to take the wind out of the sail of the ground of objection to the Form by the Appellants.
?
The Appellants also say there was no memorandum accompanying the writ of summons as provided for in the Rule. However, the learned counsel did not say the form or manner the written memorandum should be in or should be written by a claimant. The Rules of the High Court did not state, stipulate or prescribe any form or manner the memorandum should be in except that it be written. Admittedly, the purport of the said memorandum is to set out claims of a claimant against the defendant and the discretion to settle them amicably without the need to go to trial. See the objection by the Appellant before the High Court and the
12
arguments of the Appellant’s counsel under Issue 2 on the Appellants’ brief.
Learned counsel for the Appellants has argued that the letters of demand written to the Appellants by the Respondent for the amount owed by it and giving time limit to pay or face litigation do not meet the purport of the memorandum provided for in the Rules. But, even a cursory look at the letters, particularly the ones dated 9th and 22nd October,2014, would reveal that the material facts of the claims against the Appellant were clearly and expressly set out and stated therein. Apart from setting out the facts of the claims, the letter of 9th October, 2014 had stated that –
?Our instruction is to plead with you to make good the sums outstanding and the accrued interest to talking USD1m 435, 269.12 (One Million, Four Hundred and Thirty Five Thousand, and two Hundred and sixty Nine Dollars, Twelve Cents).”
The above is undoubtedly an offer by the Respondent in fact and deed, a plea for an option to the Appellant to settle the claims before or to avoid resort to legal action for the recovery of same.
?
It cannot seriously be argued that the letters which
13
accompany the Respondents’ writ of summons did not set out the claims against the Appellant or did not contain an offer or option for settlement of the claims before resort to the legal action filed against Appellants way of the writ of summons.
Once again, the High Court is right that the letters substantially and sufficient satisfied the requirement of a memorandum to accompany a writ of summons under the Rules.
I should say that from the facts disclosed in the writ of summons, the accompanying documents, particularly the correspondence between the Appellants and the Respondent and the letter dated 4th of February , 2013 from the Appellants to the Respondent, the Appellants’ objection to the writ of summons and the suit of the Respondent was simply brought to scuttle the expeditious determination of the suit on its merit and to delay it as long as they could.
?
Learned counsel for the Appellant has challenged the position of the High Court that it is in the interest of justice to decide the matter on the merit than to cling to technical rules which would only delay the determination of the of the real dispute between the parties. All that needs
14
be said is that the decision by the High Court on the Appellant’s objection as borne out at page 84 of the Record of Appeal was based on the finding that there has been substantial and sufficient compliance with its Rules and that the original process was competent. The interest of justice or substantial justice referred to by the High Court in the Ruling was in passing and borne out by the preamble to the 2012 Rules that enjoins the Court in the application of the Rules, to be guided by the need to do substantial justice to the parties expeditiously. After all, the primary object of all Rules of procedure and practice and primary duty of all Courts of law is the doing and attainment of substantial justice on the merit of the cases presented before them by the parties.
It was the Apex Court that had warned many years ago in the case of Nwosu vs. State (1990) SCNJ, 97, that parties to a case would not be permitted by the Courts to pick their ways through or by use of technical rules of procedure, the breach of which does not occasion a miscarriage of justice, in order to cause inordinate delays or frustrate the timely disposal of cases on the merit.<br< p=””
</br<
15
Although Rules of Courts are meant to be obeyed or complied with in the initiation and prosecution of matters in the Courts, as aids and not masters to the Courts, the Rules are to guide the Courts in the determination of the rights of the parties on the merit and not to be used to punish them for innocent mistakes or inadvertence of their counsel in the presentation or prosecution of the cases. Depending on the peculiar facts and circumstances of a case, generally, Courts would be guided by the need to do justice rather than strict adherence to rules which impede expeditious determination of the rights and obligations of the parties within a reasonable time. Nneji vs. Chukwu (1988) 6 SCNJ 132; (1988) 3 NWLR (1981) 184. Aisthom vs. Saraki (2000) FWLR (1928) 2267.
In the final result, I find no merit in this appeal and it is dismissed accordingly. As a consequence, the Ruling delivered on the 18th of December, 2015 by the High Court dismissing the Appellants’ preliminary objection to the competence of the Respondent’s suit No. LD/165CMW/15, is hereby affirmed.
?
There shall be costs assessed at N200,000.00 in favour of the Respondent to be paid by
16
the Appellants.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading before now, the judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, J.C.A.
I agree with the reasoning and conclusion arrived at in the lead judgment.
I also dismiss the appeal and abide by all the consequential orders made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: Section 113 of the Evidence Act 2011, which is in pari materia with the Section 84 of the Evidence Act, 1990, provides that a Court can make use of an affidavit which is defective in form if satisfied that the affidavit was sworn to before a Commissioner for Oaths. See IJAODOLA vs. REGISTERED TRUSTEES C. & S.C. M. (2006) 4 NWLR (PT. 969) 159 and UDESEGBE vs. SPDC NIG. LTD (2008) 9 NWLR (PT. 1093) 593 at 603 & 604.
The Appellants complaint in this appeal inter alia is about the form of the Respondent’s Protocol Form 01 filed with the writ of summons. The defect complained about by the Appellants is that the natural person who deposed to the Protocol Form 01 on behalf of the Respondent, an artificial person, did not state his name. This is a
17
defect in form which does not affect the substance of the Protocol Form 01. Therefore upon being satisfied that the affidavit was sworn before a Commissioner for Oaths, the lower Court was right to allow the use of the said Protocol Form 01, notwithstanding the said defect in form.
Furthermore, the Rules of Court provide the sanction for non-compliance with Order 3 Rule 2 (1) of the Lagos State High Court Civil Procedure Rules 2012 (which provides for the Protocol Form 01), and the sanction is that the Registry of Court shall not accept the originating Process for filing. The sanction is definitely not for the writ to be invalidated. Where the Registry fails in its duty and accepts an originating process which does not fully comply with Order 3 Rule 2 (1), the failure of the Registry will not affect the validity and competence of the originating process. It will be a mere irregularity.
It is for the foregoing reasons and the more detailed reasons and conclusions in the leading judgment of my learned brother, Mohammed Lawal Garba, JCA, which I was privileged to read in draft that I agree with the lower Court that the Respondent’s originating process
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substantially and sufficiently compiled with the provisions of Order 3 Rule 2 (1) (e) of the Lagos State High Court Civil Procedure Rules 2012. I therefore join in affirming the decision of the lower Court. I equally dismiss this appeal for being devoid of merit. I abide by the order as to costs contained in the leading Judgment.
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Appearances
Olatunde Adejuyigbe, SAN with him, O. T. Dike, J. P. Ogbonmide and O. T. IyanFor Appellant
AND
O. Idemudia with him, Oluwaseyi BalogunFor Respondent
