Alfred Onyemaizu V. His Worship J.A. Ojiako & Anor (2000)
LawGlobal-Hub Lead Judgment Report
SULE AREMU OLAGUNJU, J.C.A.
The Appellant who was convicted of the offence of stealing by the 1st Respondent in his capacity as the Chief Magistrate sitting at Ekwulobia in Aguata Magisterial District of Anambra State of Nigeria, did not appeal against the conviction. But he later applied to the Anambra State High Court for leave to apply for an order of certiorari to quash the judgment of the learned Chief Magistrate who together with the Registrar of his Court were made the Respondents to the application.
The application for leave was granted sequel to which the Appellant filed on 28/3/94, a motion on notice under what is described as ‘Order 37 (i) (a) Anambra State High Court Rules 1988’ praying the Court for an order of certiorari to quash the judgment of the 1st Respondent which after a series of adjournments was set down for hearing on 25/4/95. At the hearing, the competence of the application was challenged on a preliminary objection by learned Senior Advocate for the Respondents, G. E. Ezeuko, Esq., on the ground that, it was not supported by an affidavit by the Applicant declaring the names and addresses of the persons who had been served with the notice of the Applicant’s motion as stipulated by sub-rule 5(4) of Order 37 of the Anambra State High Court Rules, 1988, which was not satisfied by the Affidavits of Service of the process filed by the court bailiff.
The objection which was based on the precedent of the decision of this Court in The State v. Commissioner Of Police. In Re Appolos Udo. (1987) 4 NWLR, (Part 63) 120, 126, was upheld by the learned trial judge who struck out the Appellant’s motion as being incompetent. This appeal is challenging that decision.
In his Notice or Appeal, the Appellant filed 2 grounds of appeal. The particulars of the two grounds which are on law and misdirection and rather prolix are in the main on the application of the decision in In re Appolos Udo, supra, to the facts of the case on appeal. In his Brief of Argument, the Appellant formulated 3 issues as follows:
“1. Whether the decision of the Court or Appeal in Re Appolo, Udo (1987) 4 NWLR (Part 63) page 120, should have a binding effect on lower Courts.
2. If the answer is in the affirmative, whether on the facts and circumstances of this instant suit (Alfred Onyemaizu’s), the lower Court will nevertheless be bound by the precept of stare decisis.
3. Whether Re Appolos Udo was made per incuriam, if so, whether the Court of Appeal should feel bound by it.”
The Respondents in their Brief of Argument formulated one issue which reads:
“Whether the learned trial Judge was right in striking out the Appellant’s application for an order of certiorari to issue against the judgment of Chief Magistrate J.A. Ojiakor Esq., for non-compliance with Order 37 Rule 5(2) and (4) of the Anambra State High Court Rules 1988.”
As a preliminary observation, let me note that this appeal has been dogged by slipshod mistakes by beginning with the filing on 28/3/94 of the motion for an order of certiorari. I looked in vain for ‘Order 37(i)(a) Anambra State High Court Rules 1988’ under which the application was purportedly brought nor can I find in the record the leave said in paragraph 21 of the affidavit supporting the motion to have been granted to the appellant by the Court below for ‘the Writ of certiorari to issue against the judgment’. Even with a smattering knowledge of the law ‘Order’ of certiorari is what is provided for by Order 37, Rule 5, etc., of Anambra State High Court Rules, 1988, to which a Writ of certiorari is alien.
More fundamental, however, are the scope and substance or the grounds of appeal filed. Given the definition of ‘ground of appeal’ as ‘a concise statement or the head of complaint of an appellant in the appeal’ for which see Idika v. Erisi, (1988) 2 NWLR, (Part 78) 563. 578. I do not think that the two grounds of appeal filed by the Appellant go to the heart of the dispute between the parties which ought to be addressed to the point on which objection was taken to the competence of the application for an order or certiorari that led to the striking out of the application in support of which the principle In Re Appolos Udo, supra, was just called in aid.
But that is just only part of the remissness in presenting the appeal by learned Counsel for the Appellant who formulated 3 issues from 2 grounds of appeal an error in brief writing that has been deprecated time without number. For the umpteenth time, let it be reiterated that it is wrong and unacceptable to formulate more issues than the grounds of appeal filed as proliferation of issues confounds rather than clarifies matters in controversy. See, in this regard, Oyekan v. Akinrinwa (1996) 7 SCNJ 165, 172: (1996) 7 NWLR (Pt. 459) 128 and Onyioha v. Ayashe 1996) 2 NWLR (Part.432), 567.
To compound the problem, the third issue formulated by the Appellant on whether the decision of this Court in Re Appolos Udo, supra, was made per incuriam did not arise from the matters canvassed at the trial. There, in arguing the preliminary objection the efforts of learned Counsel for the Appellant were taken up with distinguishing the facts of the present case from the earlier case with a view to showing that the facts of the two cases are not similar and, therefore, the principle enunciated in the earlier case cannot be invoked as a precedent for the case in hand. That is not the same as saying that the decision in Re Appolos Udo, supra, was tendered per incuriam, i.e. through inadvertence, for the purport of which See Nwoko v. Governor of Rivers State (1989) 2 NWLR (Part 104) 470. Besides, as I will show presently querying whether the decision of a higher Court was rendered per incuriam is a booby-trap which no trial Judge would dare to walk into.
In any case, issue 3 raised a fresh issue which was not canvassed at the Court below. This, the Appellant cannot do without the leave of this Court. See Din v. Attorney-General of the Federation (1988) 4 NWLR (Part 87) 147, 183; Adamu v. Ikharo (1988) 4 NWLR (Part 89) 474, 491; Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Part 92) 1, 48-49; and Odekilekun v. Hassan (1997) 10-12 SCNJ, 114, 129. See also (1997) 12 NWLR (Pt.531) 56. In the result, I find issue 3 in the Appellant’s Brief of Argument to be incompetent and I strike it out.
Having sieved the wheat from the chaff, I will examine the first issue in the Appellant’s Brief of Argument separately; it will be followed by taking issue 2 together with the lone issue in the Respondent’s Brief of Argument. In his argument of the first issue, learned Counsel for the Appellant hopped over across to the question of waiver, an independent defence that must be raised and canvassed for which see Ariori v. Elemo (1983) 1 SCNJ 1; (1983) SCNLR 1 and Odu’a Investment Company Ltd. v. Talabi (1997) 7 SCNJ 600, 650-654, (1983) 10 NWLR (Pt.523) 1. I agree with learned Counsel for the Respondents that, it is a fresh issue not canvassed at the Court below. Therefore, I will discountenance that question adopting the cases I cited above and the decision in Edokpolo and Company Ltd. v. Seni-Edo Wire Industry Ltd. (1989) 4 NWLR (Part 116) 473, 491, to which learned Counsel for the Respondents referred.
At the centre of the argument of learned Counsel for the Appellant is the doctrine of stare decisis whereby, the decision of the superior Courts are binding the Courts below them and operated on two correlative concepts of ‘ratio decidendi’ and ‘obiter dictum’ in the former of which inheres the biding force where facts of the case proffered as precedent are similar to the facts of the case to which the doctrine is to be applied. For the classic exposition of the doctrine in this country, see Clement v. Iwuanyanwu (1989) 20 NSCC (Part II) 234, 240-241; (1989) 3 NWLR (Pt. 107) 39; Adegoke Motors Ltd. v. Dr. Adesanya (1989) 20 NSCC (Part II) 327, see also 3 NWLR (Pt. 109) 250, 331; Nwako v. Governor of Rivers State, supra, at page 481; Ebiteh v. Obiki (1992) 5 NWLR (Part 243) 599; Rossek v. African Continental Bank Ltd. (1993) 10 SCNJ 20; (1993) 8 NWLR (Pt. 312) 382 and Adesokan v. Adetunji (1994) 6 SCNJ (Part 1) 123, 136-138 and 155-156, (1994) 5 NWLR (Pt. 346) 540.
The argument of learned Counsel for the Appellant with its rambling over the issue or fairness which is an appeal to the Court’s raw equitable sentiment boils down to the desirability of distinguishing the decision in Re Appolos Udo (supra) to accord with the Court’s leaning against technicality. With respect to the learned Counsel that is begging the question. Placing undue emphasis on that decision for the outcome of this appeal when what is called for and to be addressed frontally is the effect of sub-rule 5(4) of Order 37 of the Rules of the trial Court on the Appellant’s application is idle.
On the binding effect of the decisions of higher Courts on the Courts below them, the subordinate Courts cannot but be wary of the sensitivity of attitudes where the authority of the Courts above them on a relevant issue comes into play. Let it be stated as a general rule of practice that, so much premium is placed on the doctrine of Stare decisis as the barometer of the level of certainty that is necessary to keep the host of legal principles on an even keel. As a guardian of decisions with established principles, the higher Courts in the judicial hierarchy will not brook any wanton deviation by the lower Courts which may provoke a reaction on the part of the higher court to call to order the recalcitrant or non-conforming Court or member to order. In recent times the salvo from the Supreme Court over the refusal of a regional High Court to follow the decision of the Court above it because the decision of the higher Court had been reached per incuriam was registered in Tsamiya v. Bauchi Native Authority (1957) NRNLR 73; (1956) SCNLR 220 where that Court per Jibowu, F.C.J., at Pages 82-83, reprimanded sternly the appellate wing f the High Court of the defunct Northern Nigeria as follows:
“In the judgments in Fagoji’s case, we observe that the learned Chief Justice and the members of the Court considered that they had acted per incuriam in their previous decisions in homicide cases from Native Courts, particularly in this case of Jalo Tsamiya. That was not all, they refused to follow the decision of the West African Court of Appeal in Ghishiwa Gana v. Bornu Native Authority, 14 WACA 587 because they considered that the decision was reached per incuriam. We do not quarrel with the High Court’s decision not to follow their own previous decisions, if they felt that the decisions have been reached per incuriam; but there is no precedent for their refusing to follow a previous decision or the West African Court of Appeal on the subject matter of the inquiry because they considered that that decision had been reached per incuriam.
With respect to the learned Chief Justice and other members of the Court, it must be pointed out that it is not for an inferior Court to say that a decision of the higher Court was reached per incuriam; that is a privilege of the higher Court if, after reconsidering its former decision, it is satisfied that the previous decision had been reached per incuriam”.
A similar reaction, albeit with a subdued resentment, followed in the Supreme Court’s decisions in Adegoke Motors Ltd., v. Adesanya supra, at pages 330 and 338; and Yusuf v. Dada (1990) 7 SCNJ 68; (1990) 4 NWLR (Pt. 146) 657, 83. However, in Atolagbe v. Awuni, (1997) 7 SCNJ 1; (1997) 9 NWLR (Pt. 522) 536 SC at 544, the Court came down hard on a state High Court judge who for no justifiable reason refused to follow a decision of the Court of Appeal. See pages 21, 24 and 35 of the Law Reports for the variants of the outburst which was moderated in the leading judgment by the Chief Justice of Nigeria who, at page 20, expounded the theme inter alia, as follows:
“It is now settled that under the common law doctrine of precedent or stare decisis, the decision of a higher Court may be criticized by the judge of a lower Court but not withstanding the criticism the Judge of the lower Court is bound to follow and apply such decision in the case before him. He has no right to disregard the decision or side-track it.
It was quite wrong for the learned trial Judge to prefer the decision in Bakare’s case to that in Gambari’s case, since the decision in Bakare’s case has no bearing on the facts of the case before him”.
Nwako v. Governor of River State supra and Ebiteh v. Obiki supra, are two of such decisions in which the Justices of this Court took liberties with some abstruse points of law in the decisions of the Supreme Court but the privilege of the higher Court to have its decisions respected and followed was sustained by the critiques and kept inviolable and undiminished. This is rooted in the ethics of the higher judicial bench apart from divergence of the principles of law that is kept in check by the doctrine of stare decisis.
Therefore, in view of the current of judicial authorities about which there is no equivocation, the answer to issue 1 in the Appellant’s Brief of Argument is that since the decision of this Court in Re Appolos Udo supra, has not been reversed by the Supreme Court, the only competent authority that can do so, it is binding on all the Courts below, the Court of Appeal given the fulfillment of the conditions under which the principles of stare decisis will operate for which see the cases cited above.
Issue 2 in the Appellant’s Brief of Argument is whether given the facts and circumstances of the case on appeal the Court below was still bound by the precept of stare decisis to which an affirmative reply is predicated by the answer to issue one. In any case, in order to get to the root of the controversy between the parties that issue will be taken together with the issue framed by the respondents a combination of which for the purpose of simplification can be recast as whether under sub-rule 5(4) of Order 37 of the High Court Rules personal verification by the Applicant by affidavit of service of motion on the persons concerned is mandatory so as to create a condition precedent to the validity of an application under sub-rule 5(1) thereof for an order of certiorari. That, in my view, is the axis on which the application to the case on appeal of the decision in Re Appolos Udo, supra, will operate and, therefore, the core of the problem. Sub-rule 5(4) on which the controversy turns reads:
“An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons shall be filed before the motion is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the motion.” (italics mine).
It is common ground that on 25/4/95, when at the threshold or the hearing of the application for an order of certiorari objection to the competence of the application was raised by learned Senior Advocate for the Respondents, there was no affidavit filed by the Appellant verifying the particulars enumerated in sub-rule 5(4) reproduced above. At the end of the argument on behalf of the Respondents, the case was adjourned to 24/7/95 for a reply at the request of learned Counsel for the Appellant, who was unable to give an impromptu reply. In the meantime, on 17/7/95 the appellant deposed to an affidavit headed ‘Affidavit of Service of Motion on Notice filed in Court on 28/3/94’ to which he exhibited two ‘Affidavits of Service’, marked Exhibits ‘9’ and’ 10′ purportedly deposed to by a Chief Bailiff of the ‘High Court Ekwulobia.’ In the Affidavits of Service the Deponent swore that on 29/3/94, he served on the 1st Respondent ‘A Writ of Notice Motion on Notice’ and on the 2nd Respondent ‘A Writ of Notice on Notice’. Thus, the Appellant’s affidavit of 17/7/95 and the accompanying ‘Affidavits of Service’ are at the centre of the arguments of the learned Counsel on whether there was compliance with sub-rule 5(4) of Order 37 of the High Court Rules by the appellant in his application for an order of certiorari.
Against this background, learned Counsel for the Appellant canvassed various rules of interpretation of statute supported by a few decisions of the English Courts to demonstrate that sub-rule 5(4) of Order 37 should be construed as being ‘directory’ and not mandatory”. In particular, he referred to the decisions in Pearse v. Morrice (1834) 2A and E84 at page 96: Sussex Peerage Claim (1844) C1, & F83 and Curtis v. Stovin (1889) 22 QBD, 513, 517, and submitted that, in the light of the decision in the last case two affidavits by the Court bailiff which gave the names and addresses of the Respondents served with the Notice of the Motion should be regarded as satisfying the requirements of sub-rule 5(4) of Order 37 of the High Court Rules of Anambra State. The learned Counsel referred to the provision of sub-rule 5(5) of Order 37 of those Rules which he contended gives the Court below the discretion to adjourn the Appellant’s application instead of striking it out for non-compliance with sub-rule 5(4) of Order 37 as the only option available to that Court in the circumstances of the application before it. He submitted that the learned trial Judge was, therefore, in error in striking out the Appellant’s case and urged this Court to allow the appeal in keeping with the trend of current judicial practice of letting substantial justice prevail over technicality.
Replying learned Counsel for the Respondents submitted that filing an affidavit to satisfy the requirement of sub-rule 5(4) of Order 37 after the objection to the application had been raised but before the Appellant replied to the objection is questionable as an attempt to overreach the Respondents. He stressed the clause of sub-rule 5(4) of Order 37 which stipulated that, the affidavit verifying the particulars enumerated must be before the Court on the date of hearing of the application. He contended that, the ‘Affidavits of Service’ by the Court bailiff cannot satisfy the requirement of that clause nor can the belated affidavit by the Applicant filed on 17/7/95 meet the requirement. He submitted that the attempt to validate the incompetent application by the affidavit filed later is futile as that is a distortion of the provision or sub-rule 5(4) of Order 37 which the Court is not entitled to do as it runs counter to the principles in Osadebay v. Attorney-General Bendel State (1991) 1 NWLR. (Part 169) 525, 574; and Ibrahim v. Judicial Committee of Kaduna State (1998) 12 SCNJ, 255, 275, see also (1998) 14 NWLR (Pt. 584) 1 SC. on the need for the Court to comply with the statute from which it derives its jurisdiction.
He contended that, the word ‘shall’ in an enactment imports an obligation that a thing must be done and, therefore, it is a form of command or mandate contending further in amplification that the phrase ‘shall be filed before the motion is entered for hearing’ and the sentence ‘and the affidavit shall be before the court on the hearing of the motion’ in sub-rule 5(4) of Order 37 are words of obligation which must be complied with before the Court can be competent to entertain any application under rule 5 of Order 37. To buttress the propositions, the learned Counsel referred to the decisions in Adigun v. Attorney-General of Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197, 230; Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411, 470; Egbe v. Alhaji A. Alhaji (1990) 1 NWLR (Pt. 128) 546, 584; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376 SC; Nigeria L.N.G. Ltd v. A.D.I.C. Ltd. (1995) 8 NWLR (Pt. 416) 677, 697. The learned Counsel submitted that sub-rule 5(5) of Order 37 does not apply to this case and even if it is held to be applicable an appellate court is slow at interfering with the exercise of discretion by the lower Court.
The learned Counsel finally argued that, there is no compliance with due process of law when the procedural requirements are not complied with which approximates to the 3rd condition for competence to exercise jurisdiction within the principle formulated in Madukolu v. Nkemdilim (1962) 1 All NLR. 587, 595; (1962) 2 (SCNLR) 341. He submitted that, since it was apparent to the Court below that no affidavit was filed by the Applicant to satisfy the requirements of sub-rule 5(4) of Order 37 it was open to that Court to decline jurisdiction to entertain an incompetent action. He concluded that, the learned trial Judge came to the correct decision and urged the court to affirm the decision.
The answer to the question canvassed by the learned Counsel in their elaborate arguments is encapsulated by sub-rule 5(4) of Order 37 of the Anambra State High Court Rules, reproduced above, that set out what an Applicant desirous of relief in form of order of certiorari must do and the time within which he must do them. In outline, the Applicant must verify by an affidavit the names and addresses of the persons served with the originating motion and the places and date of service. The affidavit must be filed before the motion is entered for hearing and must be before the court on the hearing of the motion.
The argument of the Appellant that the Affidavits of Service by the court bailiff, who served the originating motion on the Respondents satisfied the requirements of that rule was met by the Respondents who contended that (a) affidavit or service by the bailiff cannot satisfy the requirement of sub-rule 5(4) which contemplates a personal verification by affidavit filed by the applicant and (b) the affidavit of the appellant through which the Affidavits of Service by the bailiff were exhibited was not filed before the motion was heard and, consequently, it was not before the court at the time of hearing of the motion.
On who may file the affidavit, whether such an affidavit must as a rule be made personally by the applicant is inconclusive from the wording of sub-rule 5(4) of Order 37. But reading that rule with the provision of sub-rule 5(1) thereof that introduced as a requirement verification of particulars of service of the Notice of the motion, the requirement is such a close incident of the application that element of the applicant discharging the duty personally is the natural deduction. Therefore, I am of the view that filing a verification affidavit under sub-rule 5(4) of Order 37 is a personal obligation incidental to the application for order of certiorari that cannot be delegated to a court official such as a bailiff.
In case I am wrong and the duty of filing a verification affidavit under sub-rule 5(4) is such as, on another view or the matter, can be discharged by proxy, can the Affidavits of Service filed by the Court bailiff exhibited to the appellant’s affidavit of 17/7/95 and marked Exhibits 9 and 10 satisfy that requirement? I do not think so. Firstly, what are produced as verification affidavits, Exhibits 9 and 10, are certified true copies of the original documents, according to paragraph 8 of the appellant’s affidavit of 17/7/95. They cannot be used in judicial proceedings by virtue of Section 79 of the Evidence Act which reads:
“Before an affidavit is used in the Court for any purpose, the original shall be filed in the Court, and the original or an office copy shall alone be recognised for any purpose in the court.”
Secondly, the first affidavit, Exhibit 9, deposed to service on the 1st Respondent of ‘a Writ of Notice Motion on Notice’ while the second affidavit Exhibit 10, deposed to serving on the 2nd Respondent a Writ of Notice on Notice. Whatever the Deponent might mean by those jargons or esoteric balderdash he does not pretend to serve Notice of Originating Motion on either of the Respondents which is the only relevant consideration for the purpose of sub-rule 5(4) of Order 37. Consequently, the affidavits of service being flaunted about by the Appellant as verification affidavits are worthless documents.
On the question of when the verification affidavit may be filed, sub-rule 5(4) of Order 37 is unequivocal about the matter: ‘it shall be filed before the Court on the hearing of the motion’. From pages 54-56 of the record the motion was set down for hearing on 13/10/94, preliminary objection challenging the competence of the action taken and argued on 25/4//95 but the verification affidavit was filed on 17/7/95. That was well over 9 months after the motion was entered for hearing and over two and a half months after learned Senior Advocate for the Respondents argued the preliminary objection. That is far and away outside the time prescribed for filing an affidavit and doing so by stealth. It is unconscionable, to say the least.
What emerged from the examination of the steps taken by the Appellant pursuant to his application for an order of certiorari is that, he did not file any affidavit of verification of service of Notice of originating Motion to satisfy the provision of sub-rule 5(4) of Order 37 of the High Court Rules which cannot be met by a pair of worthless documents presented months after they were made as Affidavits of Service nor can the requirement be fulfilled by disingenuous ploy of rushing in an affidavit of compliance by the Appellant some 16 months after the motion was filed as a native stratagem to the objection to the application by the Respondents which is tantamount to shifting the goal-post after the race had kicked off.
Failure to file the verification affidavit means non-compliance with the prescription for application for an order of certiorari under rule 5 of Order 37 which sub-rule 5(4), thereof enjoins to be filed before the motion is entered for hearing and which must be placed before the Court when the motion comes up for hearing. It is a step that must be taken before an application can be entertained.
In considering the effect of the non-compliance with the rule by the Appellant, I have to address my mind to the distinction between a defect in competence of an action and a defect in procedure, the former of which spells absence of jurisdiction while the latter shows an irregularity in the process of adjudication and may not be fatal to the action: see Saude v. Abdullahi (1989) 20 NSCC (Pt. 111) 177, 209; (1989) 4 NWLR (Pt. 116) 387 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501, 539.
Drawing that line, failure of the Appellant to satisfy the requirement under sub-rule 5(4) of Order 37 means failure to follow the course of procedure laid down for initiating an application for an order of certiorari by rule 5 thereof, which is tantamount to the action not being initiated by due process or law and consequently, it is non-fulfillment of the condition precedent to the exercise of jurisdiction by the Court within the principle enunciated by Madukolu v. Nkemdilim, supra, at page 595. An impediment which impairs the competence of an action as a subject of adjudication, per force, rubs on the jurisdiction of the Court to entertain the action. I am satisfied that failure of the Appellant to fulfil in full the conditions laid down by rule 5 of Order 37 of the Rules of the High Court is not a mere irregularity in procedure. It impacts upon the capacity of the trial Court to entertain the action which was initiated without following due process of law.
With the facts before him the learned trial Judge declined jurisdiction to entertain the Appellant’s action on the ground that, he lacked jurisdiction to do so on the precedent of the decision of this Court in Re Appolos Udo supra, the applicability of which is the mainspring of this appeal. I have examined the provisions of sub-rules 1(3) and (4) of Order 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, on the interpretation of which that decision was based. They are substantially similar to sub-rules 5(2) and (4) of Order 37 of the Anambra State High Court Rules, 1988, on which the decision under review was grounded.
The ratio of the decision in Re Appolos Udo, supra, at page 126, is that ‘where a rule of court provides for the doing of any act before a case can be heard…that rule must be followed strictly because rules of court are made to be obeyed’. In that case, as in the present case, the reason for striking out the application was that no affidavit verifying the service of the Applicant’s motion on the persons affected by the application was filed by the Applicant.
In University of Lagos v. Olaniyan (1985) 16 NSCC (Pt.1) 98, 106, (1985) 1 NWLR (Pt. 1) 156 the Supreme Court held that “where a higher Court in the hierarchy of Courts has construed a rule of Court which is in pari materia with the rules of a lower Court that decision of the higher Court is binding on the lower Court in so far as the meaning of that rule of Court is concerned”. See also Nwobodo v. Onoh (1984) 1 S.C. 1, 34-35, (1984) SCNLR 1. Therefore, the fine distinction raked up by the Appellant to distinguish the facts of the decision in Re Appolos Udo supra, from the facts of the case in hand is idle as drawing red-herrings across the trail.
In sum, on the interpretation of the provisions of sub-rules 5(2) and (4) of Order 37 of the Anambra State High Court Rules, 1988, and the application of the decision of this Court in Re Appolos Udo. I am satisfied that, the Court below came to the correct decision by striking out the Appellant’s case for lack of jurisdiction.
I affirm that decision. I dismiss this appeal with N3,000 costs against the appellant.
Other Citations: (2000)LCN/0693(CA)
