SUBAYA METALWARE (NIG) LTD v. ALAKIJA & ANOR
(2022)LCN/16339(CA)
In The Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/353/2016
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
SUBAYA METALWARE (NIGERIA) LIMITED APPELANT(S)
And
1. MRS. AYOOLA ALAKIJA – EXECUTOR 2. CAPTAIN DELE SASEGBON – HEIR (Sued Jointly As Representatives Of The Estate Of Late Dr. Ayodele O. Sasegbon) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE APPROACH TO BE ADOPTED BY THE TRIAL COURTS WHERE DEFENCE IS FILED LATE OR OUT OF TIME
In considering the approach to be adopted by trial Courts where defence is filed late or out of time, the Supreme Court per Musdapher, JSC (as he was) held in UKIRI v GECO-PRAKLA (NIG.) LTD. (2010) 16 NWLR (Pt. 1220) 544, that:
“It is settled law that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This Court in the case of United Bank For Africa Ltd. vs. Dike Nwora (1978) 11 – 12 SC 1 at 6 – 7 held that a Statement of Defence filed out of time and in contravention of the rules of Court was not a void document and remains “a valid document until set aside.” Fatayi-Williams, JSC, (as he then was) stated in that case: “If a defence has been put in, though irregularly, the Court will not disregard it, but will see whether it sets up grounds of defence which, if proved, will be material and if so, will deal with the case in such manner that justice can be done.”
See also MOBIL PRODUCING NIG. UNLTD v MONOKPO (supra), MANA v PDP & ORS (2011) LPELR-19754(CA), per Bada, JCA at pages 36 – 37, paras. B – B and OKORIE v OKEREKE & ANOR (2019) LPELR-47335(CA), per Orji-Abadua, JCA at pages 17 – 23, para. D. PER MOHAMMED, J.C.A.
THE POSITION OF LAW WHERE A PARTY WHO IS AWARE OF AN IRREGULARITY PROCEEDS TO TAKE STEPS IN THE PROCEEDING DESPITE THE IRREGULARITY
It is settled law that a party who is aware of an irregularity in a proceeding but proceeds to take steps in the proceedings despite the irregularity, he is deemed to have waived same and cannot thereafter be heard to complain of the irregularity. In ARIORI & ORS v ELEMO & ORS (1983) LPELR-552(SC), the Supreme Court explained rationale behind the principle of waiver when it held that:
“Whether one was dealing with waiver or with such other principles of equity as laches, acquiescence and a variety of estoppel, one common feature running like a connecting thread in all of them is the element of volition, express or implied, coming from the party against whom the doctrine is raised. It is this knowledge and acquiescence that makes it unjust and inequitable that he should turn to resile from the situation… Whether the waiver be express or implied, the party against whom the doctrine is raised (i) must be aware of the act or omission and (ii) must do some unequivocal act adopting or recognising the act or omission. Both elements must be present to constitute a waiver.
See also ODUNEYE v FRN & ORS (2014) LPELR-23007(CA), per Iyizoba, JCA at pages 49 – 50, para. D and REGISTERED TRUSTEES OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA v ARO BROTHERS PETROLEUM LTD (2021) LPELR-55995(CA), per Mohammed, JCA at page 35, para. B. PER MOHAMMED, J.C.A.
WHETHER OR NOT AN ORIGINATING SUMMONS CAN ENLARGE THE JURISDICTION OF A COURT
It is trite that originating summons is merely a method of procedure and not one to enlarge the jurisdiction of the Court. By its very nature, Originating Summons is to make things simple for hearing and it is available to any person claiming interest under a deed, will ot other written instrument. It is a procedure where the evidence in the main is by way of documents and there is not serious dispute as to their existence in dealing with the parties to the suit. In such a situation there is no serious dispute as to facts but what the Claimant is claiming is the declaration of his right. It there is a serious dispute as to facts, as I see in this suit, then a normal writ of summons must be taken out and not originating summons.
In this suit, there are disputed facts as to the validity of the sublease relied upon by the Claimant and also as to the ownership of the building and development on the land in issue.
I am therefore of the firm view that this suit is contentious, it is a hostile proceeding in view of the disputed facts contained in the affidavit in support and the counter-affidavit, therefore, an originating summons is not used to ventilate this type of proceedings – AMASIKE V. REGISTRAR GENERAL C. A. C. & ANOR (2010) 3 NWLR (Pt. 1211) 337 (SC), PAM & ANOR V. MOHAMMED & ANOR (2008) 16 NWLR (Pt. 112) 1 (SC), NATIONAL BANK V. ALAKIJA (1978) 9 – 10 SC 42. In sum, I hold that this Originating Summons is incompetent same as (sic) dismissed, the parties are advised to take out a proper writ of summons and exchange pleadings.” PER MOHAMMED, J.C.A.
WHETHER OR NOT AN ACTION WHICH IS NOT DETERMINED ON THE MERIT IS DISMISSED
It is settled law that when an action which is not determined on the merit is dismissed, as was done by the lower Court, such an order of dismissal can only amount to striking out of the suit. See UNILAG v AIGORO (1985) LPELR-3418(SC), per Oputa, JSc at page 22, para. C, NICON INSURANCE LTD v SONA BREWERIES PLC & ORS (2019) LPELR-49832(CA), per Garba, JCA (as he then was) at pages 22 – 24, para. E and REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZOR PARISH) v AKADIRI & ANOR (2019) LPELR-46780(CA), per Yakubu, JCA at pages 25 – 26, para. A. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant herein was an assignee of a sub-leased parcel of land measuring about 20.06 acres situate at Ilogbo Road, near Ota, Ogun State executed between the assignor, Hong Kong Sunthetic Fibre Company Ltd and Late Dr. Ayodele O. Sasegbon. Upon the death of late Dr. Sasegbon, his Estate represented by the Respondents herein executed a fresh deed of sublease with the Appellant which was already derived from the assignor, Hong Kong Synthetic Fibre Company Ltd. When the Respondents wanted to sell their reversionary interest in the land, they approached the Appellant offering outright sale of the said subleased parcel of land including the buildings and developments thereon as a first right of refusal before offering same to third parties. Being the person who had solely invested and erected the buildings and developments on the land, the Appellant posited that the sub-lease was for the bare land while the Respondents insisted on making valuation for the land together with the buildings and developments thereon in order to offer same to interested buyers.
As the Respondents insisted on entering the subleased land to conduct market valuation of the buildings and development affixed by the Appellant in order to offer same along with the land to prospective buyers, the Appellant who had the subsisting sublease, instituted an action before the High Court of Ogun State, Ota Judicial Division vide an Amended Originating Summons wherein he sought for the following reliefs against the Respondents:
a. A declaration that there is a valid and subsisting sublease agreement between the Estate of Late Dr. Ayodele O. Sasegbon represented by the Defendants and the Claimant unexpired till and including the 28th day of February, 2037.
b. A declaration that the Claimant by virtue of the Deed of Assignment dated 16th day of June, 2008 and the Deed of Sublease dated 1st day of March, 2012 is the lawful occupier of the subleased bare land delineated by Late Dr. Ayodele O. Sasegbon and devolving on the Estate of Late Dr. Ayodele Sasegbon represented by the Defendants measuring approximately 20.06 acres situate and lying along Ilogbo Road, near Ota, Ifo/Ota Local Government Area of Ogun State.
c. A declaration that by virtue of the Deed of Assignment dated 16th day of June, 2008 and the Deed of Sublease dated 1st day of March, 2012 the Claimant is the rightful holder of all the buildings, developments and fixtures affixed and bearing on the subleased bare land delineated by Late Dr. Ayodele O. Sasegbon and devolving on the Estate of Late Dr. Ayodele Sasegbon represented by the Defendants measuring approximately 20.06 acres situate and lying along Ilogbo Road, near Ota, Ifo/Ota Local Government Area of Ogun State and thereof the Claimant had the exclusive right to same till the expiration or determination of the sublease.
d. A declaration that whilst the sublease is valid and subsisting the Estate of late Dr. Ayodele O. Sasegbon represented by the Defendants either acting directly or through his heirs, executors assigns, agents, administrators or otherwise howsoever have no acquired right in the buildings, developments and fixtures affixed and bearing on the subleased bare land delineated by Late Dr. Ayodele O. Sasegbon and devolving on the Estate of Late Dr. Ayodele Sasegbon represented by the Defendants measuring approximately 20.06 acres situate and lying along Ilogbo Road, near Ota, Ifo/Ota Local Government Area of Ogun State.
e. A declaration that whilst the Deed of Sublease dated 1st day of March, 2012 remains valid and subsisting, the Estate of Dr. Ayodele O. Sasegbon represented by the Defendants’ right on the subleased parcel of land lawfully in the possession of the Claimant, delineated by Late Dr. Ayodele O. Sasegbon and devolving on the Estate of Late Dr. Ayodele Sasegbon represented by the Defendants measuring approximately 20.06 acres situate and lying along Ilogbo Road, near Ota, Ifo/Ota Local Government Area of Ogun State is only limited to the reversionary interest.
f. An order restraining the Estate of Late Dr. Ayodele O. Sasegbon represented by the Defendants either acting directly or through his heirs, executors assigns, agents, administrators or otherwise howsoever from selling, assigning, transferring, mortgaging, licensing and disposing in whatever manner or form whatsoever of the Claimant’s holding rights in the buildings, developments and fixtures affixed and bearing on the valid and subsisting subleased bare parcel of land in the possession of the Claimant delineated by Late Dr. Ayodele O. Sasegbon and devolving on the Estate of Late Dr. Ayodele Sasegbon represented by the Defendants measuring approximately 20.06 acres situate and lying along Ilogbo Road, near Ota, Ifo/Ota Local Government Area of Ogun State during the subsistence of the Deed of Sublease dated 1st day of March, 2012.
g. And for such and further order(s) as this Honorable Court may deem to make in the circumstances.
Upon being served with the Amended Originating Summons vide substituted means at their last known address the Respondents filed a Counter-Affidavit and Written Address on the 21st of April, 2016 wherein they raised the issue of the competence of the originating summons. On the 24th of March, 2016, the trial Court heard arguments on the originating summons and delivered its judgment on the 31st of May, 2016 dismissing the originating summons as incompetent and advising parties to take out a proper writ of summons and exchange pleadings. The judgment of the Court is at pages 720 – 726 of the Record of Appeal.
Piqued by the judgment of the trial Court, the Appellant brought this appeal vide a Notice of Appeal filed on 26th July, 2016 (at pages 736– 740 of Vol. II of the Record of Appeal). The Notice of Appeal was amended vide Amended Notice of Appeal filed on 18th March, 2021 and deemed properly filed on 27th September, 2021. The Record of Appeal was transmitted to this Court on 21st October, 2016
Parties filed and exchanged briefs of argument which they subsequently amended. The Appellant’s Amended Brief of Argument filed on 9th September, 2021 and settled by Peter Shobiye Esq., was deemed properly filed on the 27th of September, 2021, while the Respondents’ Amended Brief of Argument filed on 20th October, 2021 was settled by Lukman Ogunsetan Esq. The Respondents also filed a Notice of Preliminary Objection on 20th October, 2021 and incorporated arguments in support of same in their Amended Brief of Argument.
THE PRELIMINARY OBJECTION:
The Notice of Preliminary Objection filed on 20th October, 2021 by the Respondents only challenges the competence of ground 1 of the Appellant’s Amended Notice of Appeal and the two issues distilled therefrom. But the Appellant’s Amended Notice of Appeal filed on 18th March, 2021 and deemed properly filed on 27th September, 2021 contains two grounds of appeal.
It is settled that the object of a preliminary objection to an appeal is to challenge the competence of the appeal itself and not some of the grounds of the appeal. For a preliminary objection to be proper, it must be one which seeks to terminate the appeal in limine and not some of its grounds. Where it is only some of the grounds of the appeal that are to be attacked, the proper procedure is to use a motion on notice and not a preliminary objection. See IBRAHIM v APC & ORS (2019) LPELR-48995(SC), per Eko, JSC at page 5, para. B, COMPACT MANIFOLD & ENERGY SERVICES LTD v PAZAN SERVICES (NIG.) LTD. (2019) LPELR-49221(SC), per Galinje, JSC at pages 8 – 11, para. E and SHITTU v PEUGEOT AUTOMOBILE (NIG) LTD (2018) LPELR-54377(SC), Rhodes-Vivour, JSC at pages 5 – 6, para. F. The preliminary objection filed by the Respondents which seeks to only challenge one of the two ground of this appeal is therefore, incompetent. Accordingly, it is hereby struck out.
THE APPEAL:
From the two grounds of appeal, the Appellant distilled the following three issues for determination:
1. Whether it was right for the lower Court to have relied on the Respondents’ purported Counter-Affidavit and Written Address in support dated 21st day of April, 2016 which was filed out of the prescribed time and no leave to enlarge time was neither filed not granted by the lower Court.
2. Whether non-service of the Respondents’ purported Counter-Affidavit and Written Address in support dated 21st day of April, 2016 on the Appellant does not deny the Appellant the right of fair hearing.
3. Whether the lower Court was right when the lower Court outrightly dismissed the Amended Originating Summons dated the 13th day of January, 2016 without the proper determination of the case on the merit.
On their part, the Respondents formulated two issues for determination, which were:
1. Whether the lower Court was right to have considered the Respondents’ counter-affidavit and written address in arriving at its final decision in the suit.
2. Whether the use of the word “dismissal” by the learned trial judge in his judgment of 31st day of May, 2016 amounts to an outright dismissal of the originating summons in the circumstances of this case.
APPELLANT’S SUBMISSIONS:
On his issue one, the Appellant contended that Rules of Court must be obeyed unless the Court is given discretion under them. He cited IWUNZE v FRN (2014) 6 NWLR (Pt. 1404) 611, per Okoro, JSC; G.M.O. NWORAH & SONS CO. LTD. v AFAM AKPUTA (2010) 9 NWLR (1200) 443, WILLIAMS & ORS. v HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) N.S.C.C. Vol. 13, 36. He submitted that the Court cannot on its own extend time for filing of processes and called in aid AGNES EJIOFODOMI v H. C. OKONKWO (1982) 11 S.C. 74 at 115 and NATIONAL BANK OF NIG. LTD. v ARE BROTHERS (NIG.) LTD (1977) 6 S.C. 97. Citing Order 17 Rule 15 of the High Court of Ogun State (Civil Procedure) Rules, 2014, he argued that the Respondents’ counter-affidavit ought to be filed within 14 days after service of the Originating Summons and in the event of default, within such time as is extended by the Court. He submitted that from the record of appeal at pages 498 – 519 of Volume I, the Respondents were served the Amended Originating Summons on the 15th of January, 2016 and at the resumed hearing on 28th January, 2016 shown at pages 712 – 714 of the Record, the Respondents’ Counsel confirmed service of the originating processes on the Respondents. But the Respondents failed to file their Counter-Affidavit and Written Address for more than six months and only filed same in the morning of 21st April, 2016, the day set for definite hearing of the Summons. Counsel submitted that no application for leave of Court to file the counter-affidavit was sought and none was granted, but the trial Court proceeded to consider same in its judgment at pages 720 – 726 of Volume II of the Record of Appeal, especially at page 724. Relying on the cases of OKPE v FAN MILK PLC & ANOR (2016) LPELR-42562(SC), VESA FOODS AGENCIES LTD & ANOR v ACCESS BANK PLC (2014) LPELR-22441(CA), Counsel argued that the decision of the trial Court which relied on the incompetent counter-affidavit was erroneous and urged this Court to set it aside.
On issue two, learned Counsel for the Appellant contended that service of process is one of the fundamental conditions precedent to the exercise of jurisdiction by a Court. Relying on SKEN CONSULT v UKEY (1981) 1 S.C. 6 at 26, ODUTOLA v KAYODE (1994) 2 NWLR (Pt. 324) 1, and ONWUKA v OMOLEWA (2001) 7 NWLR (Pt. 713) 695, he submitted that where there is no proof that service was effected on the appropriate party, any judgment emanating from such proceeding is a nullity. He pointed out that the Counter-Affidavit and Written Address of the Respondents which were filed on the 21st of April, 2016 were never served on the Appellant and no proof of service was before the lower Court when it relied on same to reach its resolution. He argued that this has breached the Appellant’s right to fair hearing as provided in Section 36 of the 1999 Constitution and denied the Appellant his right to file a Reply as provided in Order 18 Rule 3 of the High Court of Ogun State (Civil Procedure) Rules, 2014. Citing and relying on the cases of MBADINUJU v EZUKA (1994) 8 NWLR (Pt. 364) 535 at 566, paras. D – F; ODIGIE v NIGERIA PAPER MILLS LTD. (1993) 8 NWLR (Pt. 311) 388, Counsel submitted that the is entitled ex debito to have the decision of the trial Court set aside.
On his issue 3, learned Counsel for the Appellant contended that the law if that where a matter is commenced by an originating summons rather than a writ of summons, the proper order to make is not dismissing the suit but directing the parties to proceed to file pleadings or striking out the summons since the trial Court has not delved into the merit of the suit. He called in aid the cases of ALPHONSO KANU v CENTURY MERCHANT BANK & 2 ORS (2006) 11 CLRN 73 lines 6 to 8, EKPO v INEC & ORS (2013) LPELR-20359(CA) and ADEGBOYEGA OSUNBADE & ORS v OBA JIMOH OLADUNNI OYEWUNMI & ORS (2007) 5 SCNJ 178. He submitted that the lower Court was in error when it dismissed the Appellant’s case without going into the merit of the case and this has denied the Appellant’s right to fair hearing. He cited NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt. 135) 688 at 727, per Belgore, JSC OHIAERI v AKABEZE (1992) 2 NWLR (Pt. 221) 1 and WESTERN STEEL WORKS LTD v IRON STEEL WORKERS UNION OF NIGERIA (No. 2) (1987) 1 NWLR (Pt. 49) 284, and submitted that the proper order the trial Court ought to have made is to order pleadings and not to dismiss the action or pronounce on the merit of the case. He urged the Court to allow the appeal and set aside the decision of the lower Court.
RESPONDENTS’ SUBMISSIONS:
In his counter submission in issue 1, learned Counsel for the Respondents conceded that the Respondents’ Counter-Affidavit and Written Address in opposition to the Originating Summons were filed out of the 14 days allowed by Order 17 Rule 15 of the High Court of Ogun State (Civil Procedure) Rules, 2014. He however submitted that all the authorities cited by the Appellant relate to either the general rule on non-compliance and/or are inapplicable to the facts and circumstance of this case. He argued out that the case of NATIONAL BANK OF NIGERIA LTD v ARE BROTHERS (NIG.) LTD (supra), cited by the Appellant has been overtaken by recent Supreme Court decisions on the issue. He pointed out that the Counter-Affidavit and Written Address being complained of served as a defence to the Originating Summons at the lower Court. He cited the cases of MOBIL PRODUCING NIG. UNLTD. v MONOKPO (2003) 18 NWLR (Pt. 852) 346 at 411, para. H and NISHIZAWA v JETHWANI (1984) 12 S.C. 234, to the effect that a Court should not shut its eyes to a statement of defence merely because it was irregularly filed, but should have a look at same to see if it discloses some defence which might be considered in the interest of justice. He further relied on KATTO v CBN (1991) 9 NWLR (Pt. 214) 126 at 147, para. D, per Akpata, JSC and FAMFA OIL LTD. v A.G. FEDERATION (2003) 18 NWLR (Pt. 852) 453, per Edozien, JSC at page 476, paras. F – G, to the effect that rules of Court are not as immutable and sacrosanct as mandatory statutory provisions. He argued that the non-compliance only amounted to an irregularity and not a nullity.
Learned Counsel further submitted that the burden is on the Appellant to show that the non-compliance had caused injustice to him. He relied on CARIBBEAN TRADING & FIDELITY CORPORATION v NNPC (1992) 7 NWLR (Pt. 252) 161 at 182-183, paras. H – A. He pointed out that there was no injustice because as can be seen at page 718 of the record, the Appellant never complained that he was not served with the Respondents’ Counter-Affidavit and Written Address, but proceeded to reply to same on points of law at the lower Court. Relying on COOPERATIVE & COMMERCE BANK (NIG.) PLC v A.G. ANAMBRA STATE (1992) 8 NWLR (Pt. 261) 528 at 554, paras. C – G, he urged the Court to discountenance the arguments of the Appellant and resolve this issue in favour of the Respondents.
On his issue 2, learned Counsel for the Respondents referred to the holding of the lower Court at page 726 of the Record of Appeal where it sued the word “dismissed” and conceded that the lower Court ought not to use the word “dismissed” since it had not determined the case on the merit. He however argued that in the strict sense the lower Court never determined the case on the merit. He submitted that when an action is dismissed not on the merit it amounts to striking out. He cited UNILAG v AIGORO (1985) LPELR-3418(SC), OBASI BROTHERS v MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 9 NWLR (Pt. 929) 117, per Pats Acholonu, JSC at 129, paras. E – F. He urged the Court resolve this issue in favour of the Respondents and dismiss the appeal for lack of merit.
APPELLANT’S REPLY:
In reply, the Appellant posited that non-service of process where required deprives the Court of jurisdiction and nullifies any decision of judgment reached from the proceedings. He argued that issue of jurisdiction can be raised at any time. He cited EWINSTEL (NIG) LTD v ABIA (2011) LPELR-4132(CA) and MADUKOLU v NKEMDILIM (1963) 2 SCNLR 341. He submitted that Order 5 of the High Court of Ogun State (Civil Procedure) Rules, 2014 deals with the effect of non-compliance and grants the Court the powers to set aside the proceedings wholly or in part for such failure.
On the use of the word “dismissed” by the learned trial judge, Counsel argued that the Respondents have failed to take cognizance of the far reaching consequence and effect of such a compelling word in law. He referred to the definition of the word “dismiss” in Black’s Law Dictionary (Seventh Edition) at page 482, as well as the case of OTERI HOLDINGS LTD v HERITAGE BANKING CO. LTD (2020) LPELR-50802(CA), per Tobi, JCA, and urged this Court to allow the appeal.
I start by observing that the Appellant who has two grounds of appeal has raised three issues for determination; more issues that the grounds of appeal. This amounts to proliferation of issues which is deprecated by appellate Courts. Recently faced with a similar situation to what was done by the Appellant herein, the Supreme Court, per Saulawa, JSC held in OKO & ORS v A.G., EBONYI STATE (2021) LPELR-54988(SC) at page 14 para. A, as follows:
Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable. In drafting grounds of appeal and issues for determination, counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground.
It seems to me however, that issues 1 and 2, which were apparently distilled by the Appellant from ground 1, relate to the consideration by the lower Court of the Respondents’ Counter Affidavit and Written Address, while issue 3 relates to the legal effect of the order made by the lower Court. In my view the two issues raised by the Respondents effectively cover the two grounds of appeal and capture those three issues raised by the Appellant. I shall therefore adopt the two issues distilled by the Respondent in deciding the appeal.
RESOLUTION OF ISSUE 1:
Whether the lower Court was right to have considered the Respondents’ counter-affidavit and written address in arriving at its final decision in the suit.
The first contention of the Appellant under this issue is that the trial Court was wrong to have relied on the Respondents’ Counter Affidavit and Written Address to the Originating Summons which was filed out of time.
Order 17 Rule 15 of the High Court of Ogun State (Civil Procedure) Rules, 2014 which regulates the filing of defence to an originating summons provides as follows:
“A defendant to an Originating Summons shall file and serve a counter-affidavit together with all exhibits he intends to rely upon and a written address within 14 days after service of the Originating Summons or within such time as may be abridged or extended by the Court.”
In the instant case, there was no dispute as to the fact that the Respondents’ Counter-Affidavit was not filed within the time stipulated in the above rule. The dispute is to whether or not it was right for the lower Court to have considered same, having been filed out of the time stipulated by the rules. The first point to start is to debunk the Appellant’s mistaken argument in paragraph 5.5 of the Appellant’s Brief of Argument that the Rules of Court which stipulate the time for filing of processes have created a condition precedent. They do not. The failure to file a process within time does not make the process a nullity. It only creates an irregularity which does not annul the process. This is encapsulated in the Rules of Court relating to non-compliance.
For instance, the High Court of Ogun State (Civil Procedure) Rules 2014, which is the rules of procedure of the lower Court, provides in Order 5 Rule 1 (1) as follows:
“Where in beginning or purporting to begin any proceeding or 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 requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and if so treated will not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.”
As rightly observed by the learned Counsel for the Respondents, the Counter-Affidavit and Written Address filed at the lower Court out of time by the Respondents are not ordinary processes. They constitute the Respondents’ defence to the Appellant’s Originating Summons. Whilst in the case of WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCIETY (supra), relied upon by the Appellant it was an application seeking to set aside a judgment that was filed out of time, in the case of the Respondents it is their defence to the Appellant’s Originating Summons.
It is pertinent to state that while as a general rule, processes filed out of time are considered irregular and require regularization before they are considered, the appellate Courts of today have generally leaned more towards doing substantial justice than being beholden to undue technicalities. This wise, the appellate Courts have generally leaned towards deciding cases on their merits. In considering the approach to be adopted by trial Courts where defence is filed late or out of time, the Supreme Court per Musdapher, JSC (as he was) held in UKIRI v GECO-PRAKLA (NIG.) LTD. (2010) 16 NWLR (Pt. 1220) 544, that:
“It is settled law that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This Court in the case of United Bank For Africa Ltd. vs. Dike Nwora (1978) 11 – 12 SC 1 at 6 – 7 held that a Statement of Defence filed out of time and in contravention of the rules of Court was not a void document and remains “a valid document until set aside.” Fatayi-Williams, JSC, (as he then was) stated in that case: “If a defence has been put in, though irregularly, the Court will not disregard it, but will see whether it sets up grounds of defence which, if proved, will be material and if so, will deal with the case in such manner that justice can be done.”
See also MOBIL PRODUCING NIG. UNLTD v MONOKPO (supra), MANA v PDP & ORS (2011) LPELR-19754(CA), per Bada, JCA at pages 36 – 37, paras. B – B and OKORIE v OKEREKE & ANOR (2019) LPELR-47335(CA), per Orji-Abadua, JCA at pages 17 – 23, para. D.
From the applicable provisions of Order 5 Rule 1 (1) of the High Court of Ogun State (Civil Procedure) Rules, 2014 and the judicial authorities which I have cited above, it is obvious that the lower Court was right in considering the Respondents Counter Affidavit and Written Address which was their defence to the Appellant’s Originating Summons notwithstanding that the said counter affidavit was not filed within time. The failure only amounted to a mere irregularity which should not be allowed to clog the consideration of the case on its merit.
As for the second contention of the Appellant under this issue relating to non-service on him of the Respondents’ Counter-Affidavit and Written Address, it is instructive to observe that page 716 of the Record of Appeal shows in the proceedings of 21st of April, 2016 the learned Counsel for the Claimant (Appellant herein) never raised the issue of non-service on him of the Respondents’ Counter-Affidavit and Written Address. The learned Counsel only urged the Court to discountenance the Respondents’ Counter-Affidavit that was filed that morning and allow him to move his application. The Appellant never complained of non-service of the Counter-Affidavit and the lower Court never made any ruling on that but only asked the Claimant’s Counsel to move his application. The learned Counsel then proceeded to move his application.
It is settled law that a party who is aware of an irregularity in a proceeding but proceeds to take steps in the proceedings despite the irregularity, he is deemed to have waived same and cannot thereafter be heard to complain of the irregularity. In ARIORI & ORS v ELEMO & ORS (1983) LPELR-552(SC), the Supreme Court explained rationale behind the principle of waiver when it held that:
“Whether one was dealing with waiver or with such other principles of equity as laches, acquiescence and a variety of estoppel, one common feature running like a connecting thread in all of them is the element of volition, express or implied, coming from the party against whom the doctrine is raised. It is this knowledge and acquiescence that makes it unjust and inequitable that he should turn to resile from the situation… Whether the waiver be express or implied, the party against whom the doctrine is raised (i) must be aware of the act or omission and (ii) must do some unequivocal act adopting or recognising the act or omission. Both elements must be present to constitute a waiver.
See also ODUNEYE v FRN & ORS (2014) LPELR-23007(CA), per Iyizoba, JCA at pages 49 – 50, para. D and REGISTERED TRUSTEES OF INDEPENDENT PETROLEUM MARKETERS ASSOCIATION OF NIGERIA v ARO BROTHERS PETROLEUM LTD (2021) LPELR-55995(CA), per Mohammed, JCA at page 35, para. B.
Even after being aware of the Respondents’ Counter-Affidavit and Written Address filed that morning in opposition to the Originating Summons, the Appellant never raised the issue of non-service on him of those processes, but proceeded to move the Originating Summons. By so doing, the Appellant had clearly waived the issue of service and cannot be heard to complain on same. I so hold. In consequence of all the above, I resolve this issue against the Appellant.
RESOLUTION OF ISSUE 2:
Whether the use of the word “dismissal” by the learned trial judge in his judgment of 31st day of May, 2016 amounts to an outright dismissal of the originating summons in the circumstances of this case.
The essential contention of the Appellant under this issue is that the judgment of the lower Court is in error when it dismissed the Originating Summons since the case was not determined on the merit. The Respondents however contend that even though the learned trial judge used the word “dismissed”, he never considered the case on the merit and he ordered parties to take out a writ of summons and exchange pleadings, hence the order of dismissal must be construed to mean a striking out of the Originating Summons.
To better appreciate the import of the decision made by the lower Court, it is pertinent that I reproduce the reasoning of the learned trial judge leading to the decision, as well as the decision itself. From pages 724 – 726 of the Record of Appeal, the learned trial judge found and held as follows:
“I have carefully read and considered the averments contained in the affidavit in support and also the counter-affidavit in opposition to the originating summons. I have also considered the addresses of the learned counsel for the parties. I find from reliefs (b), (c), (d) and grounds 5 and 6 of the originating summon, the Claimant is calling upon the Court not only to look into the validity of the subsisting sublease agreement between the Estate of Late Ayodele O. Sasegbon represented by the Defendants, and the Claimant but also into the ownership of all the buildings and developments on the parcel of land, subject-matter of the lease. The Defendants have joined issues with the Claimant on the validity of the said sublease and the ownership of the buildings on the land in dispute. The issue raised by the learned Counsel for the Claimant is as centered on whether or not the Claimant is entitled to the exclusive ownership of the development on the subleased parcel of land to the exclusion of the Defendants and other 3rd parties throughout the duration and subsistence of the sublease. While the Defendants’ Counsel in his address had raised among other issues whether this suit where facts are contentious can be commenced by way of an originating summons.
It is trite that originating summons is merely a method of procedure and not one to enlarge the jurisdiction of the Court. By its very nature, Originating Summons is to make things simple for hearing and it is available to any person claiming interest under a deed, will ot other written instrument. It is a procedure where the evidence in the main is by way of documents and there is not serious dispute as to their existence in dealing with the parties to the suit. In such a situation there is no serious dispute as to facts but what the Claimant is claiming is the declaration of his right. It there is a serious dispute as to facts, as I see in this suit, then a normal writ of summons must be taken out and not originating summons.
In this suit, there are disputed facts as to the validity of the sublease relied upon by the Claimant and also as to the ownership of the building and development on the land in issue.
I am therefore of the firm view that this suit is contentious, it is a hostile proceeding in view of the disputed facts contained in the affidavit in support and the counter-affidavit, therefore, an originating summons is not used to ventilate this type of proceedings – AMASIKE V. REGISTRAR GENERAL C. A. C. & ANOR (2010) 3 NWLR (Pt. 1211) 337 (SC), PAM & ANOR V. MOHAMMED & ANOR (2008) 16 NWLR (Pt. 112) 1 (SC), NATIONAL BANK V. ALAKIJA (1978) 9 – 10 SC 42. In sum, I hold that this Originating Summons is incompetent same as (sic) dismissed, the parties are advised to take out a proper writ of summons and exchange pleadings.”
It is settled law that where, as in the instant case, an action commenced by an originating summons is found to be contentious and therefore, ought to be commenced by a writ of summons, the proper order to make is not to dismiss the suit, but to order the parties to file and exchange pleadings in order for the suit to proceed as if it was commenced by a writ of summons. In ADEYELU II & ORS v OYEWUNMI & ORS (2007) LPELR-167(SC), the Supreme Court restated this position when Akintan, JSC held at pages 16 – 17, para. F, that:
“…the proper order a trial Court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”
From the above quoted holding of the lower Court, it is easily discernible that the although the Court was wrong to have used the word “dismissed”, it actually found the suit of the Appellant contentious and not one that can be sustained with an originating summons and proceeded to advise the parties “to take out a proper writ of summons and exchange pleadings.” In other words, the trial Court from the reasoning preceding the use of the word “dismissed” by the learned trial judge, as well as his advise to the parties to take up writ of summons and exchange pleadings, the trial Court found that the action was wrongly commenced by way of originating summons but instead of ordering parties to file pleadings, dismissed the originating summons even as it never determined the action on the merit. As acknowledged by the Appellant in paragraph 10.1 of his Brief of Argument, the proper order which the trial Court ought to have made was for the parties to file pleadings or strike out the suit.
It is settled law that when an action which is not determined on the merit is dismissed, as was done by the lower Court, such an order of dismissal can only amount to striking out of the suit. See UNILAG v AIGORO (1985) LPELR-3418(SC), per Oputa, JSc at page 22, para. C, NICON INSURANCE LTD v SONA BREWERIES PLC & ORS (2019) LPELR-49832(CA), per Garba, JCA (as he then was) at pages 22 – 24, para. E and REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZOR PARISH) v AKADIRI & ANOR (2019) LPELR-46780(CA), per Yakubu, JCA at pages 25 – 26, para. A.
In the instant case, it is clearly evident from the above quoted decision of the learned trial judge that the word “dismissed” as used therein was merely intended to have the effect of striking out the Originating Summons. This is clearly discernible from the reasons advanced by the learned judge leading to the decision, as well as his advice to the parties to take up a writ of summons and exchange pleadings. The use of the word “dismissed” by the lower Court has therefore not debarred the Appellant from pursuing his cause of action using writ of summons as expressly stated by the lower Court. I therefore hold that the word “dismissed” as used by the trial Court only has the effect of striking out the originating summons, same having not been determined on the merit. The result is that this issue is also resolved against the Appellant.
Indeed, given the stated reasons for the decision of the lower Court and its express advice to the parties to take out a writ of summons and exchange pleadings as shown above, I am of the respectful view that the Appellant had only left the substance in the lower Court’s decision and wasted time chasing shadows by embarking on this appeal.
Having resolved all the two issues for determination against the Appellant, I hereby dismiss this appeal for lack of merit. The decision of the trial Court directing parties to take out a writ of summons and exchange pleadings is hereby affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA and I agree with him that this appeal lacks merits and stands dismissed. However, for purposes of emphasis, I will make my own contribution.
It is now trite law that failure to serve process, where service of process is required, is a failure which goes to the root of the case. Service of process on a party to a proceeding is fundamental. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the Order but not served with the process is entitled ex debito justitiae to have the Order set aside as a nullity. See ALHAJI J.A. ODUTOLA V. INSPECTOR KAYODE (1994) 2 NWLR (PT.324) 1 and OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505(SC).
However, where a party failed to raise an issue of irregularity at the earliest stage, it is deemed that such a party waived his right to complain about any irregularity in the proceedings, which was condoned by him. Most especially where the non-compliance is an irregularity, which is curable and not fatal to the case of the Appellant. See OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) P. 587 and BUSARI V. OSENI (1992) 4 NWLR (PT.237) 557.
It is settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. An irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity. See NIGER-BENUE TRANSPORT COMPANY LTD VS. NANUMAL & SONS LTD (1986) 4 NWLR (PT 33) 117.
Where an action has been commenced by a procedure which is irregular, a defendant who took active part in the proceedings without complaining about the irregularity cannot be heard subsequently to seek to set aside the action on the grounds of the irregularity acquiesced. After the party raising and relying on the irregularity to set aside or do away with the action for being incompetent had taken steps in the proceedings aware of the irregularity, it is too late and against the interest of justice to raise and rely on the objection. See C.F.A.O. V. THE ONITSHA INDUSTRIES LTD 11 NWLR 102, JOHNSON V. ADEREMI & ORS 13 WACA 297, ADEBAYO & ORS V. CHIEF SHONOWO & ORS (1969) ALL NWLR 176, NOIBI V. FIKOLATI & ANOR (1987) 1 NWLR (PT 52) 619, EZOMO V. OYAKHIRE (1985) 1 NWLR (PT 2) 195 and NOIBI V. FIKOLATI (1987) 1 NWLR (PT 52) 619.
From the foregoing, the issue of non-service of the Respondents’ Counter-Affidavit on the Appellant, was never raised nor challenged by the Appellant. But the Appellant proceeded to move its Originating Summons, which signifies that the Appellant has condoned the act of the Respondents, therefore waived its right to complain.
In view of the above additional discussions, I am in full agreement with the lead judgment and I also hold that the appeal is unmeritorious and therefore it is dismissed. I abide by the consequential orders made in the lead judgment.
FOLASADE AYODEJI OJO, J.C.A.: I read in draft the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA. I completely agree that pursuant to Order 5 Rule 1 (1) of the High Court of Ogun State (Civil Procedure) Rules 2014, the omission on the part of the Respondents to file their Counter-Affidavit and Written Address within the time prescribed by the Rules of the lower Court is a mere irregularity. It does not suffice as a reason to nullify the proceedings or judgment of the lower Court. Furthermore, at the hearing of the Originating Summons, the Appellants joined issues by responding on points of law to the Counter-Affidavit and Written Address.
The principle of fair hearing guaranteed under the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) requires that in determining the claim(s) before it, the Court must be impartial, independent and fair. In several decisions of Court including NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 4 NWLR (PT. 1765)165, GYANG VS. COMMISSIONER OF POLICE, LAGOS STATE (2014) 3 NWLR (PT. 1395)547 AND DARMA VS. ECOBANK NIGERIA LIMITED (2017) 9 NWLR (PT. 1571)480, it has been held that hearing in a trial is fair when all parties to the dispute are given equal opportunity to present their respective cases.
The fact that the Appellant reacted on points of law after the Respondents had adopted their Counter-Affidavit and Written Address shows that the hearing at the lower Court was fair. The Appellant could not have responded to the Respondents’ processes if they were not served on him. The submission made for the Appellant to wit: that its right to fair hearing was breached is therefore grossly misconceived.
It is for the foregoing and the more detailed reasons in the lead judgment that I also dismiss this appeal and affirm the judgment of the lower Court.
Appearances:
Peter Shobiye, Esq., with him, O. O. Shobiye (Mrs.) For Appellant(s)
Lukman Ogunsetan, Esq. For Respondent(s)
