The Governor of Imo State of Nigeria & Ors V. E. F. Network Nigeria Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
ITA GEORGE MBABA J.C.A.
This appeal emanated from the judgment of Imo State High Court in Suit No. HU/538/2011, delivered on 11/2/2014 by Hon. Justice Ijeoma Agugua, wherein the learned judge entered Judgment for the claimants, as per their claims. Appellants, who were defendants at the trial Court, being aggrieved, filed this appeal on 7/5/2014, as per their Notice of appeal, challenging the judgment, on pages 173 to 176 of the Records of Appeal.
The Claimants (now Respondents) had filed a writ of summons on 27/9/2011, seeking the same reliefs. On the same date, they filed a motion exparte praying for an order setting down the suit under the undefended list and deeming the writ of summons (Exhibit E) as duly filed and served, the filing fees having been paid. On 25/10/2011, the trial Court refused the application to place the matter on the undefended list, and ordered the claimant to filed their statement of claim and front load accordingly. The Defendants did not file their defence and even having been granted extension of time to file the same, they still failed to do so.
On 16/12/2013, the
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defendant applied again, to be allowed to defend that suit by further extending time for them to file their statement of defence and deeming the said processes already filed as duly done, and for the recalling of CW1 for cross examination. This application was refused on the grounds that pleadings had been closed and defendants foreclosed.
It has to be stated that while the defendants were not forthcoming with any memorandum of appearance and/or statement of defence (after being duly served with the statement of claim), the claimants filed a motion for judgment, which was what prompted the defendants to apply for the initial extension of time to file their said processes. They were granted 30 days on 10/5/12 to do so. Because the defendants still failed to file their defence and forfeited the time extended for them to do so, the claimants again, applied for judgment, but the trial Court, in its wisdom, ordered that trial be conducted and so ordered for pretrial processes, which occurred and the claimant and defendants attended (See page 151 of the Records).
The trial was conducted and the 2nd claimant testified as PW1, but he was not cross ?
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examined, because Counsel for defendants failed to cross examine him. The Court thereupon adjourned the case for defence. The defendants failed to defend the suit and the Court adjourned the matter for final addresses. It was at that stage that the defendants brought the second application, on 16/12/2013, for the following reliefs:
(1) An Order of Court granting the defendants leave to defend this case before judgment is delivered by filing their conditional Memorandum of Appearance, statement of Defence, list of witnesses, sworn depositions and the list of documents they intend to rely on at trial of this case.
(2) An Order of Court for extension of time to file Conditional Memorandum of Appearance and for further extension of time within which the Defendants/Applicants may file their statement of defence, list of witnesses, witnesses sworn depostitions and the list of documents they intend to rely on at the trial of this case.
(3) An Order of Court deeming the Conditional Memorandum of Appearance, Statement of defence, list of witnesses sworn depositions and the list of documents they intend to rely on at the trial of this case as having been
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properly filed and served.
(4) An Order of Court granting the defendants leave to recall the CW1 who gave evidence in this case on the 4/7/2013 for the purpose of being cross examined by the defendants/applicants Counsel.
The application was heard and refused on 21/1/2014 (a date earlier fixed for adoption of addresses). Because the trial Court refused that application, the claimant (Respondents) adopted their address, while the defendants (Appellants) made an oral final address on that day ? 21/1/2014, and the Court reserved judgment, which was delivered on 11/02/2014, in favour of the Respondents.
Appellants filed their brief of Arguments on 6/8/14, which was deemed duly filed on 16/6/15. They distilled three issues for the determination of the appeal:
(a) Whether having regards to the perculiar procedure of commencement of the matter under the undefended list, the learned trial judge was right to have assumed jurisdiction where the writ of summons was irregular and incompetent before the Court. (Ground 1)
(b) Whether the Honourable Court?s refusal to allow the Defendants/Appellants leave to defend the said suit before
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delivering judgment amounted to denial of fair hearing to the defendants/Appellants. (Ground 2)
(c) Whether, in the light of the arbitration clause, contained in the contract agreement between the parties, the Court was right to proceed in delivering judgment, without referring the matter to arbitration panel, despite the Defendants/ Appellants? application (Ground 3).
The Respondents filed their brief on 16/2/16, with the leave of this Court, granted on 12/2/16. They adopted the three issues distilled by Appellants for the consideration of this Appeal.
When the appeal was heard on 23/5/16, the parties, through Counsel adopted their briefs? and moved this Court, accordingly.
Arguing the appeal Emeka Orafu Esq, Counsel for the Appellants, on issue one, submitted that the suit was not properly commenced under Order 2 Rules 1 and 2 of the High Court (Civil Procedure) Rules 2008 of Imo State, as Respondents did not comply with the said Rules; that the trial Court ought to have struck out the suit for incompetence, since the writ was not filed along with the statement of claim, list of witnesses, documents to be relied upon at the
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trial; that that was why the trial Court order on 25/10/11, that those processes be filed. He argued that the writ should have been struck out as the irregularity was not such that could be waived and so the Court lacked jurisdiction to entertain the suit. He relied on Okadigbo Vs Emeka (2012) All FWLR (Pt.625)1872; Marwa Vs Nyako (2012) All FWLR (Pt.622)1652; Udeaja Vs Nwosu (2003) FWLR (Pt.153) 289.
Counsel also argued that the Respondents, who had commenced the action under the undefended list procedure, did not also comply with the Rules thereof. He said that the writ was signed by the Registrar before the order of Court on 27/9/11; that the prayer to place the suit on the undefended list did not include prayer for issuance of the writ; that where order of Court is required before the issuance of a writ of summons, Counsel should ensure that the writ is not signed before the Court order is obtained. He argued that this was a fundamental defect, which cannot be cured; that the non compliance with the rules was fatal to the competence of the proceedings. He relied on Bayero vs Maina sara & Sons Ltd (2007) All FWLR (Pt.359)1285 at 1313. He argued that
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the suit was conducted to the end without a valid writ of summons; that the rules of Court must be obeyed; that the law is trite that a Court is only competent in a case, when:
(a) It is properly constituted
(b) The subject matter of the action is within its jurisdiction
(c) The action is initiated by due process of law
(d) Any condition precedent to the execution of its jurisdiction has been fulfilled. He relied on Shelim vs Gobang (2009) All FWLR (Pt.496) Madukolu vs Nkemdilim (1962) All NLR 587; SLB Consortium Ltd vs Nigeria National Petroleum Corporation (2011) All FWLR (Pt.583)1902; Obaro vs Hassan (2013) All FWLR (Pt.687) 680.
On issue 2, Counsel submitted that the refusal by the trial judge to allow Appellants leave to defend the suit before delivering judgment amounted to denial of Appellants of fair hearing.
He argued that the law is trite that until judgment has been arrived at upon the merit, an extension of time may be allowed for rectifying mistake or oversight, and up to that time both parties may be considered as standing upon equal footing, the Court should do everything in favour of fair hearing/trial.
?He
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relied on the case Collins vs Vesting of Paddigton (1886)5 QBD 368 at 381; Onwuari Long John vs Chief Crawford N. Blark & Ors SC 261/91.
Appellant reproduced the relevant paragraphs of the affidavit in support of the application for leave to defend and to file the defence processes. They said that from the above, the trial Court clearly understood the predicament of the defendants; that the reasons given in the affidavit were clear enough for the Court to grant the application; that there is no limit to number of times an applicant can come to Court to enable him take steps in a matter. He relied on Oguntayo vs Adebutu (1996)7 NWLR (Pt.458)94 at 98-9; Kolawole vs Alberto (2002) FWLR (Pt.130) 1761 at 1783. He said that the Court can even suo motu extend time within which to file defense, and declare statement of defence already filed to have been duly filed S.G Elabor vs SEBN Ltd (1986) CA 7 (Pt.2) 29; Atangba and Anor vs Effimi (2001) FWLR (Pt.58) 1155 at 1176 CA.
Counsel argued that the Court is a Court of law and of equity and should allow a defendant who shows seriousness, an opportunity to present his case, and where there is initial
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delinquency or tardiness in prosecuting defence, there must be reason given to convince the Court to grant reprieve from being shut out. He relied on the affidavit, in support of the application, to justify the application. He said the principle of fair hearing was helpless or completely dead, outside the fact of the case. He relied on T.M. Orugbo & Anor. Vs Bulara Una & Ors SC 112/98, (2002) FWLR (Pt.127) 1024; (2002)9 SCNJ 12. He also relied on Chairman National Population Commission Vs The Chairman Ikere Local Govt. & Ors (2001)7SC (Pt.iii)90 at 97-8, 100; Thomas Enyan Olumesan Vs Ayodele Ogundepo (1996) NWLR (Pt.433) 628; UNIBIZ NIG. LTD vs COMMERCIAL Bank Credit Lyonnais Ltd (2003) 2 SC 23 Okafor vs Uchebo & Anor (2002) FWLR (Pt.122) 188 at 196-7; Murbi Mirchandani & Anor vs Babatunde Pinheriro (2001) FWLR (Pt.48 1307 at 1317-8.
?On issue 3, Counsel said there was an arbitration clause in the agreement between the parties. He referred us to one of the motions filed by Appellants on 18/12/2013 and on 21/1/14; that the trial Court had ruled on the aspect seeking leave to defend the suit but failed to rule on the aspect seeking to
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refer the matter to arbitration. He argued that the implication was that the motion was not decided and was still pending at the lower Court. He relied on the case of Dantata & Sawoe Construction Co. Ltd vs Ibrahim (2004) All FWLR (Pt.208) 930 at 938, to say that once a party files application, it has to be considered, so as to avoid breach of applicants fundamental right.
Counsel said the said motion had referred the Court to the arbitration clause in the agreement of the parties and that the same bound the parties. He relied on Adetoun Oladji (Nig) Ltd vs NB PLC (2007)5 NWLR (Pt.1027)415; that parties are not allowed to resile from terms and conditions in agreement. He relied on Kaydee Ventures Ltd vs Minister of FCT (2010)7 NWLR (Pt.1192) 171; (2010) LPELR SC 264/2002; NIGERIA SUPPLIES MANUFACTURING CO. LTD Vs NBC (1967) All NLR 35.
Counsel also referred us to page 129 of the Records of Appeal, where he said time Agreement was reproduced showing the arbitration clause. He relied on the case of Owners of MV Lutex vs Nig Overseas Chartering & shipping Ltd (2013)6 SC (Pt.11) 69-71, on effect of referal to arbitration. He also relied on
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Arbitration Act, Cap A18 LFN 2004, Section 5 of thereof.
Counsel urged us to resolve the issues for Appellant and allow the appeal, set aside the decision of the lower Court and strike out the suit, for being in-competent.
The Respondents? Counsel, E.I. Uwadi Esq, who settled Respondents? brief, on issue one, submitted that the suit was original commenced as an Undefended List matter under Order 11 Rule 8 of the High Court Civil Procedure Rules of Imo State but in the wisdom of the trial Court the Court ordered that cause list and so the Court further ordered that pleadings be filed, as per Order 2 Rule 1 of the High Court Rules, which was complied with. Counsel said that Appellants argument that claimant was supposed to file the writ of summons after the undefended list application was refused, amounted to grasping at the straw; that in this case the process did not go through the whole procedure whereof the respondent filed Notice of intention to defend and affidavit therefore under Order 11 Rules 9 and 10 of the Rules of Court. He argued that Respondents were not put in any disadvantage by the procedure which the Court adopted and so
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they (Respondents) cannot manipulate the Rules of Court to wreak havoc on the judicial system; that resort to undue technicalities is no longer the vogue in the administration of justice. He relied on Buhari vs Obasanjo (2005) 50 WRN 1, ratio 61 at 308; Associated Discount House Ltd vs Amalgamated Trustees Ltd (2006) All FWLR (Pt.320)1008 SC; (2006)5 SC (Pt.1) 32 at 37 ? 9.
Counsel further argued that assuming (but not conceding) that there was non-compliance with the rules in the way and manner the suit was originated, that non-compliance with rules of Court would be only procedural irregularity, which is curable. He relied on Order 5 Rules 1 and 2 of the High Court (Civil Procedure) Rules of Imo State, and the case of Joe Suvakatu vs Housing Dev. Society Ltd (1981)4 SC 28; Ogbomor vs The State (1985)1 NWLR (Pt.2)n 225.
Counsel argued again that the order refusing to place the suit on the undefended list was made by the trial Court, suo motu, dito the order for the claimant to file statement of claim and front load, accordingly. He also argued that the Defendant did not apply for order to set aside the writ, as suggested by Order 5(1) 2 of the
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Rules of the High Court. Counsel added that Order 2 Rule of the Rules of Court makes general Provisions while Order 11 Rule is a specific provision; that, by law, general provision is superceded by specific provision and cannot contradict the specific provision hence the expression Generalia specialibus non derogant (meaning: ?general things do not derogate from special things). He relied on Kraus Thompson Org. vs NIPPS (2005)10 WRN 127 at 143, to say that in law any specific provision excludes the general one. Thus, where there are two different provisions in a statute covering the same subject matter, one special and the other general, a case falling within the words of the special provision must be governed thereby and not by the term of the general provision. He relied on Aiyelabagan vs L.G. Service Commission, Illorin, Kwara State (2009) 22 WRN 108 ratio 28; Ibori vs Ogboru (2004)15 NWLR (Pt.895).
?On issue 2, Counsel answered the question in the negative. He argued that Appellants were served with the frontloaded processes on 17/11/2011, but they failed and refused to file their defence; Respondents filed a motion for judgments on
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13/6/2012, which prompted Appellants to bring application for extension of time to file their defence and they were granted 30 days extension to file the said processes. They still failed and refused to file and stayed about 2 years in that failure! Meanwhile, the Respondents brought motion and sought to move that motion for judgment, but the Court in its wisdom ordered for pre-trial conference, which Counsel for Appellants attended and also attended the subsequent trial, but refused/failed to cross examine the CW1.
Counsel said the trial Court was justified to refuse the application brought for further extension of time on the date the case was fixed for adoption of addresses. He referred us to paragraph 4 of the Appellants? affidavit in support of the motion for extension of time and which acknowledged that J.C. Ibe (Mrs), Counsel for Appellants ?Handled this case up to judgment day?; that she informed the deponent as follows:
(a) That the Counsel was initially in this case before the return of the case filed by Ministry of Justice to the Ministry of Petroleum & Environment.?
?Counsel noted that the said Ministry of
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Petroleum and Environment is not a 3rd person, but the 4th Defendant in this case; that having been served with the processes and their Counsel (J.C. Ibe Mrs) having been in this case, throughout the trial to the day of judgment, the application for extension of time was not justified, and the trial Court exercised its discretion correctly, by refusing it. He relied on Soludo vs Osigbo (2010)9 WRN 41; CATCOA Corp. Organised vs African Reins Corp (2010)15 WRN 153. He added that in such circumstance, the Court had to consider interest/rights of both parties as well as the integrity of the Court in taking a decision.
Counsel relied on the case of Newswatch Communications Ltd vs Atta (2006)4 JSCN (Pt.2) 114, to say that one cannot complain of fair hearing, if he failed to utilize the opportunity given to him to be heard or to state his case; that Appellants were granted numerous adjournments to present their case. He also relied on Oguntayo vs Adelaja (2010)2 WRN 1; Sky Power Airways Ltd vs Ohima (2005)18 NWLR (Pt.957)334; See also Kokawole vs Alberto (2002) FWLR (Pt.130) 1761 at 1783 (Cited by Appellant) ? where the Court held that, where
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there has been unnecessary delay in applying for extension and where injustice will be caused the other party, if time is enlarged, the application will be refused.
Counsel also relied on Schafer Ltd vs Blyth (1920)3 KB 120; A.G. Leventis Ltd vs Obiako (1963)2 All NLR 1; BASINCO MOTORS LTD vs WOERMANN Line (2010)10 WRN1 Ratio 17.
On issue 3, whether with the arbitration clause in the agreement, the Court was right to proceed to deliver judgment without referring the matter to arbitration. Counsel submitted that this issue was misconceived; that the facts regarding it had no place in this case. Counsel said the Respondents case was that they had performed their obligation in the supply contract fully, but Appellants failed to complete payment for the goods. He referred us to the contract documents Exhibit A, B and to Exhibit C, which described the specific method of payment.
Counsel noted that the Appellants filed no pleadings in this case to join issues with the Respondents. He added that the alleged arbitration clause was not part of the supply contract, which is the subject matter of the suit. Rather,
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it was part of the service contract between the parties relating to establishment of an industrial plant, which could not have been considered by the trial by Court, as it did not come into the trial by way of pleadings or sworn testimony. He stated again, that the allegation of arbitration clause related to an extraneous document, which was not placed before the trial Court. He added that the cardinal principle of pleadings is that a party claiming must not spring surprises on the opponent at the trial, but must endeavour to acquaint the other party with his case, enabling the party to know what to expect at the trial. He relied on Eke vs Okwaranyia (2001)12 NWLR (Pt.726) 181; Amadi vs Chinda (2010)11 WRN 1.
He urged us to resolve the issues against the Appellants and dismiss the appeal.
RESOLUTION OF ISSUES
On pages 173 to 176 of the Records, Appellants formulated 4 grounds of appeal in their Notice of Appeal. But in distilling issues for the determination of the appeal, Appellants failed or omitted to relate ground 4 of the appeal to any of the 3 issues donated for the determination of this appeal. The said ground 4 is hereby struck out,
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having been abandoned.
I shall therefore consider the appeal on the three issues, distilled, serially, from grounds 1 to 3, and in doing so take issues 1 and 2, together.
?A brief facts of the case at the lower Court, as per the Respondents? affidavit in support of application to place the suit on the undefended list, shows that Appellants engaged the Respondents in a supply contract, to supply 10 million Nos. of Refuse Bags and 40 thousand plastic Rolling containers at the cost of N42,00 per bag and N20,000.00 per plastic container. The offer letter, which stipulated the conditions of the supply was Exhibit A and the Appellants? acceptance letter thereto was Exhibit B. The Appellants chose to guarantee payment vide an irrevocable mandate of the payment of N35,000,000.00(Thirty Five Million Naira) monthly. The Respondents shipped a total of 63 x 40 feet containers and supplied the goods; out of the quantities supplied to the Appellants an outstanding balance of Eight Hundred Million Naira (N800,000.000.00) was outstanding for payment; the Appellants had paid N35,000,000.00 for 12 months and stopped payment. Respondents brought the action
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to recover the said outstanding balance of N800,000.000.00 (Eight Hundred Million Naira) Only.
The learned trial judge, had on reading applicants? (Respondents) motion ex-parte, filed on 27/9/2011, declined to allow the matter to be originated by way of undefended list procedure and so ordered the Respondents on 25/10/11 to file their statement of claim and front load, accordingly. See page 146 of the Records. Of course, the Respondent complied and filed the necessary processes, pursuant to Order 3 Rules 1 ? 3, of the High Court (Civil Procedure) Rules of Imo State, 2008.
The said Processes were served on the Appellants as ordered by the Court, but they failed to file their defence and would not even enter appearance. Respondents filed a motion for judgment on 5/1/12. The motion however, woke up the Appellants to bring a motion for extension of time to file their memorandum of appearance and defence etc, on 21/2/2012, which was heard and granted on 10/5/12. Appellant failed to file the processes and rather treated the order with levity. Upon the expiration of the 30 days allowed the Appellants to file their process to defend the
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action, the Respondents again, sought judgment to be entered for them in default of defence, but the trial Court in its wisdom, ordered for pre-hearing conference, which held on 12/12/12.
At the pre-trial, Appellants were represented by J.C. Ibe (Mrs.) Chief State Counsel, with her M. Osuji (Mrs.), Senior State Counsel. The matter was adjourned to 13/2/13 for the pre-trial to commence. There is no recording for 13/2/13, but on 5/6/13 when the case came up, the Appellants were not represented but the sole issue for determination filed by the Respondent, was adopted by conference, and the conference ended. The case was adjourned to 4/7/13 for hearing. See pages 151 to 152 of the Records.
On 4/7/2013 when hearing commenced, the Appellants were represented by Mrs. J.C. Ibe. PW1 (Gideon Egbuchulam) gave evidence and adopted his statement on oath. Exhibit A, B, C, D, E, F, G, H, J, K, L, M, N, O, P and Q, R, S, T, U, V,W, WI ? W6, X,Y, Z were admitted as per the claimants? list of documents. He was not cross-examined, as the Record of the Court stated:
?Cross examination by defence
Nil
Re-examination
Nil
CASE
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FOR CLAIMANT
Court: Case is adjoined to 25/7/2013 for defence?
See page 153 of the Records.
On 25/7/2013, Mrs. J.C. Ibe, Counsel for Appellants, wrote for adjournment on health grounds and the case was adjourned to 24/9/13 for defence.
But on 24/9/13, parties were absent and while Respondents were present, the Appellants were unrepresented. Hearing notice was ordered to be issued to inform them of the new date, being 12/11/13.
On 12/11/2013, the Court foreclosed the defence and adjourned the case to 19/12/13 for address. There is no record as to what happened on 19/12/13, but on 21/1/14, when the case came up, Mrs. J.C. Ibe (who was now Asst. Director Civil Litigation) appeared for the Appellants and moved the motion filed on 18/12/2013, seeking:
(1) Order granting Defendants leave to defend the suit before judgment?
(2) Extension of time to file conditional Memorandum of Appearance, and for further extension of time to file statement of defence, list of witnesses, witnesses sworn depositions and list of documents they intended to rely on at the trial.
(3) Order deeming the said processes filed as duly
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filed
(4) Order granting Defendants leave to recall the CW1 who gave evidence on 4/7/2013 for the purpose of being cross examined by defence Counsel.
Ruling on the application, the trial Court said:
?As the case is, I have to look at the merits of this application on its own. In doing this, looking at the Records of this Court, I am satisfied and I hold that Section 36 of the Constitution on fair hearing and fair trial has been adhered to. The defendants was (sic) given ample opportunity to be heard but he (sic) failed and neglected to do so. Pleadings had closed. Pretrial conducted. Trial concluded. The authorities cited deal with amendment and not initial filing of statement of defence. Accordingly, this application is dismissed.? (See page 156 of the Records)
After that short ruling, Counsel for Respondents proceeded to adopt their address, filed on 12/11/13. The Appellants? Counsel addressed the Court orally, as follows:
?Suit is predicated on contract entered into by the parties on 26/10/07. Along the line, parties misunderstood themselves. By the contract entered into by parties Exhibit B (sic) was
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the proposal by the Claimant to the Defendant for the supply of the items as enumerated in the Statement of Claim. That is not the contract of agreement. The Claimant has not filed the agreement/contract between him and the defendants. I urge the Court to discountenance the claim of the Claimant accordingly.? See page 156-157 of the Records.
I decided to reproduce in full, those facts, dates and events at the trial Court, to give a clear perspective of the claims of the Appellants, in relation to the issues one and two raised for determination of this appeal. I do not think Appellants really intended us to take them seriously, when they argued that the Respondents did not comply with the rules of Court in issuing the writ of summons, or initialing the case, and that by the refusal to allow their application to defend the suit they were denied fair hearing.
Of course, Appellants had admitted that the suit was initially sought to be originated as an Undefended List matter Pursuant to Order 11 Rule 8(1) (2) of the High Court (Civil Procedure) Rules of Imo State, and that the trial Court refused the application ex-parte to place the suit on the
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Undefended List, and rather ordered the Respondents to file their pleadings and front load the same, that is, comply with the provisions of Order 3 Rule (1) (2) of the High Court Civil Procedure Rules.
By Order11 Rules 8 (1) (2) of the Imo State High Court Rules, 2008;
?(1) Where a claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an application to a Court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit, setting forth the grounds upon which the claim is based and stating that in the deponent?s belief there was no defence thereto.
(2) The Court shall, if satisfied that there are no grounds for believing there are no defence thereto, enter the suit for hearing in what shall be called the ?Undefended List? and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.?
Order 11 Rule 10 of the said Rules of Court requires the defendant to file a notice
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of intention to defend the suit and an affidavit thereto, disclosing a defence on the merit, where he intends to defend the suit. It also says that the trial Court, if satisfied that the affidavit had disclosed a defence on the merits, may give him leave to defend the suit and thereupon remove the suit from the ?Undefended List? and place it on the ordinary cause list, and the claimant shall then comply with Order 3 Rule 2 and the case shall proceed in the normal way.
Order 3 Rule 2 of the Rules says:
(1) ?All civil proceedings commenced by writ of summons shall be accompanied by:
(a) Statement of claim:
(b) List of witnesses to be called at the trial
(c) Written statements on oath of the witnesses and
(d) Copies of every document to be relied on at the trial
(2) Where a claimant fails to comply with Rule 2 (1) above, his originating process
shall not be accepted for filing by the Registry.?
There is no doubt that the Respondent had complied with the order of Court made on 25/10/11, and had filed their pleading, in line with the above Order 3 Rule 2. That, I believe, was why the processes
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were accepted at the Registry of the trial Court and copies served on the Appellant.
I think it is preposterous for Appellants to argue that the writ of summons was incompetent, because the Registrar had signed it before the Court order was obtained; that that was a fundamental defect that could not be cured. The writ of summons in this case was filed on 27/9/11, at the time the motion exparte was also filed by the Respondents, which was meant to be issued and placed on the Undefended List.
Of course, when the Court refused the exparte application on 25/10/11, the writ had not yet been issued and so there cannot be any inference that the Registrar signed it, before the order of Court. This was an unusual situation, because the Court did not place the suit on the undefended list, waiting for the Defendants to file Notice of intention to defend the action, and an affidavit disclosing a defence on the merit. It means that from the 25/10/11, when the application was refused and the trial Court ordered for filing of Statement of Claim and front loading, the writ of summons, which had to be served together with the Statement of Claim and other front
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loaded processes, was then validly endorsed and served, as per the order of Court.
If there was any defect or non-compliance with the Rules, the process would have been rejected by the Registrar. Thus, the writ of summons and the other processes ceased to be processes, filed the Undefended List, under Order 11 Rules 1 and 2 of the Rules, having been converted by the order of Court, to processes filed under Order 3 Rules 1 and 2 of the High Court (Civil Procedure) Rules.
I cannot really see any merit in the complaint of the Appellants on this point, considering the express provision of Order 5 Rules 1 and 2 of the High Court Rules, on effect of non-compliance. I had earlier referred to that provisions of the law, which says:
(1) Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings.
(2) The judge may give any direction as he thinks fit to regularise such steps. The Judge shall not
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wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
Thus, even where a writ of summons fails to comply with the rules ?by reason of anything done or left undone, manner or from, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings
We have stated repeatedly that the Rules of Court are handmaids of the law, to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade vs. Spring Bank Plc (2013) LPELR 20763 (2014) 4 NWLR (Pt.1396) 93, and Ugba vs. Suswam & Ors (2012) LPELR 8635; (2014) ALL FWLR (Pt.723) 1886 where we held:
?It must be stated that Rules and Procedures are, in fact, meant to serve the interest of justice as handmaids of the law, to help the parties to get the justice enshrined in the substantive law. The rules cannot therefore
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be made to operate as a cog in the wheels of justice, to be used to deny a litigant the opportunity to be heard on the merit See also Duke vs Akpabuyo LG (2005 19 NWLR (PT.959)130; Nishizawa Ltd vs. Strichand Jethwani (1984) LPELR ? 2037 (SC); (1984) 12 SC 234.”
The allegation of denial of fair hearing, because the trial Court refused the Appellants the luxury of conducting the case the way they wanted; defying the existing orders of Court to file defence, or refusing to file processes to defend the suit, and even refusing to cross examine a witness only to apply for order to recall the same witness for cross examination. Appellants cannot sincerely claim to have been denied fair hearing in the circumstances. Only recently, in the case of Nwaigwe & Ors. Vs Anyanwu: CA/OW/211/2013, delivered on 8/6/16, this Court held:
Appellants cannot hide under the claim of denial of fair hearing to do mischief by deliberately defying the Court, and frustrating the hearing and/or conclusion of a case, commenced since 1998, by employing dangerous dilatory and evasive tactics, waiting to invoke and rely on the plea of breach of right of fair
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hearing, on being descended upon. One cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. See the case of Kaduna iles Ltd Vs Umar (1994)1 NWLR (Pt.319) 143 at 159, where it was held:
?Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation, it fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties as well as the Court, that a recalcitrant and defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not
See also Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95; (2006)12 NWLR (Pt.993)144; (2006) LPELR ? 1986 SC, where the Apex Court said:
?It is the duty of the Court to create the atmosphere for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes
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advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing. That is not fair to the Court, and Counsel must not instigate his client to accuse the Court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party? Per Tobi JSC.(of blessed memory)
I think in this case that Appellants appeared to have demonstrated consistent lack of interest to defend, as shown in delays and failure to file memorandum of appearance and defence or come to Court to defend it, and the case having earlier been adjourned for motion for judgment, but later aborted on the plea of the Appellants to enable them take steps to defend, but again abandoning the defence and defying the Court order, I do not think Appellants are right to
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complain of denial of fair hearing, when the Court ran out of patience to further indulge them in their dilatory games. The Respondents too had a right to fair hearing of this case, to a conclusion.
A party who fails to utilize opportunity of prosecuting his case cannot turn round to blame the Court for not being given fair hearing. GTB PLC Vs FADCO INDUSTRIES Nig. LTD. & Anor (2013) LPELR 21411 (CA).
In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held:
?The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair
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hearing.
I therefore resolve the Issues 1 and 2 against the Appellants.
The Issue 3, was whether in the light of the arbitration clause contained in the contract agreement between the parties, the Court was right to proceeding to delivering judgment without referring the matter to arbitration panel despite the Defendant/Appellants? application.
I think the whole idea of an arbitration clause in the contract agreement between the parties was left only in the imagination of the Appellants and their Counsel. Having not filed any defence in the case to disclose their defence and the alleged arbitration clause, and the contract agreement they relied on, it amounted to mere wishful thinking to expect the trial Court to halt the trial and entertain complaint on the alleged issue. This is more so as Appellants? Counsel was in Court on 4/7/2013. When PW1 gave evidence and adopted his statements on oath and the documents relied upon in the case. Appellants were given opportunity to cross examine the PW1 but they failed to do so and the Court wrote; ?Cross examination ? Nil?
?Of course, the Respondent had told us that the
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agreement was a Supply Contract as per Exhibits A and B offer and acceptance letters for the Supply Contract. The said two documents are reproduced on pages 15 to 17 of the Records of Appeal. I have studied the Exhibit A closely, on pages 15 and 16, which disclosed the conditions for the offer/supply of the goods. I cannot see any arbitration clause in it. Of course, Exhibit B is a straight forward acceptance of the offer. It reads (on page 17 of the Records):
CONTRACT TO SUPPLY 10 MILLION NOS REFUSE BAGS AND FORTY THOUSAND PLASTIC POLLING CONTAINERS
I refer to your proposal dated September 15th 2007 for supply of the above, and wish to inform you of His Excellencys approval for same. You are expected to deliver the bill of lading within 45 days from the date of guarantee but not later than 15 days (sic) as a proof of shipment.
Thanks (sic) you for partnering with the government on the Clean and Green Initiative.
Signed
Dr. A. A. Aguwa
Chairman
There is also no arbitration clause in the above. The Court cannot go outside the evidence and documents before it, to infer any existence of arbitration
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clause, to frustrate the case at the trial Court.
I resolve this Issue too against Appellants. I must say that the conduct of this case by the Appellants at the trial Court, left a lot to be desired. I think the trial Court would have subjected the law and its authority to ridicule if it had acceded to the arrogance and dilatory tactics of the Appellants and truncate the taking of addresses on 21/1/14 and subsequent delivery of the judgment on 11/2/14.
The Application of the Appellants were not taken in good faith and the trial Court was right to call off the bluff.
On the whole, I hold that the appeal is devoid of any merit and is dismissed.
Parties shall bear their respective Costs.
Other Citations: (2016)LCN/8890(CA)
