Hadiza Idris V. Mohammed Tanko Abubakar & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
The Appellant who was an applicant before the Kaduna State High Court was granted leave to apply for an order of certiorari on the 11th of November, 2004. Pursuant to the said leave, the Appellant filed her motion on notice dated 17th November, 2004. The 1st Respondent filed counter affidavit in opposition to the Appellant’s motion.
The Appellant later filed further and better affidavit. After exchange of processes between the parties, arguments were taken on 21st March, 2005 and the matter adjourned to 3rd May, 2005 for ruling. After the said adjournment, the learned Counsel for the 1st Respondent filed a document titled “ADDITIONAL AUTHORITY ON THE ABOVE SUIT” dated the 22nd April, 2005 with an argument therein to the effect that the motion was incompetent because the applicant (now Appellant) failed to file a verifying affidavit as provided for by Order 42 Rule 6 of the High Court (Civil Procedure) Rules 1987. He also cited the case of Onyemaizu Vs. Ojiako (2000) 6 N.W.L.R. (Pt. 659) page 25. On receipt of the said document the Appellant’s counsel filed a response dated 22nd April, 2005 and raised the issue that the 1st Respondent had waived his right to complain about the non compliance having taken fresh steps in the matter, among other issues.
In his ruling dated 3rd June, 2005, the learned trial judge considered the case of Onyemaizu Vs. Ojiako (supra) and held that failure to file a verifying affidavit by the Appellant was not a mere irregularity that can be waived by the Respondent but a fundamental breach that goes to the root of the application and consequently struck out the motion of the Appellant.
Dissatisfied with the stance of the learned trial Judge, the Appellant filed notice of appeal dated 4th May, 2005 containing two grounds of appeal. Parties filed and exchanged their briefs in accordance with the rules and practice of this Court. However, the 2nd and 3rd Respondents did not file any brief and no reason has been proffered for their inability to file their briefs.
When this matter came up for hearing on 19th March, 2009, only the 1st Respondent was in court and his counsel.
The Appellant, the 2nd and 3rd Respondents were neither present not represented by counsel. Since the appellant had filed his brief, this appeal was deemed duly argued vide Order 17 Rule 9 (4) of the Court of Appeal Rules 2007.
Before going into the appeal proper, I need to point out here that the 1st Respondent filed notice of preliminary objection dated 21st May, 2007 on the same date. I shall determine the preliminary objection before taking further steps in the appeal if need be.
The preliminary issues are two and are as follows:-
“1. That this appeal is incompetent and this Honorable Court lacks the requisite jurisdiction to entertain same and this should be struck out.
- The Grounds (sic) two of this appeal is incompetent as it raises an issue that was not canvassed at all at the Lower Court and should be struck out along with the Brief of Argument thereof or other orders as the Honorable Court may deem fit to make in the circumstance.”
The two preliminary issues are anchored on three grounds hereunder stated:-
“(i) There is no evidence on the record of this Appeal to show that the Notice and Grounds of Appeal relied upon in Appellants’ brief of Argument has been paid for at the Lower (sic) as no statement of the Registrar of the Court below on the record concerning particulars of the case and there is no schedule from the Registrar of the fees paid at the Lower Court.
(ii) The decision and finding of the Lower Court sought to be appealed against stemmed directly from exercise of discretion of the Lower Court and leave of court is no doubt required to appeal against same and no such leave either from the Lower Court or the Court of Appeal was sought and obtained by the Appellant before this appeal was purportedly filed.
(iii) Grounds (sic) two of this Appeal is to the effect that the 1st Respondent challenged the competence of the certiorari application by way of additional authority without any Summons or Motion on Notice is being raised for the first time in this Appeal and no leave of this court was sought and obtained to that effect.”
The 1st Respondent’s arguments in respect of the preliminary objection are contained on pages 3 to 5 of his brief. The Learned Counsel for the 1st Respondent submitted that the Notice and Grounds of Appeal relied upon by the Appellant in this appeal was not paid for and even if paid for, the record of this appeal is not aware of that.
That parties are bound by the record of Appeal and Courts lack the jurisdiction to go outside the record of appeal in search of evidence relying on the case of Emmanuel Olamide Larmie Vs. Data Processing Maintenance Services (2005) 12 S.C.N.J. 299. That where there is no evidence on record showing that a Notice of Appeal was filed, any purported appeal thereof is incompetent. He referred to the case of Diamond Bank Ltd v.. Ndubuisi (2002) F.W.L.R. (Pt. 105) 727.
Furthermore, that this appeal is challenging the exercise of the discretion of the lower Court in striking out the certiorari processdings and that whenever a challenge is made to the improper exercise of discretions it will necessarily involve the question of mixed law and facts which will necessitate leave of Court citing section 24 (i) (b) of 1999 Constitution and the cases of Onochie Vs. Ogbochie (1986) 2 N.W.L.R. (Pt. 23) P. 84, Adegoke Motors Vs UBA (1997) 2 S.C.N.J. 130 and Metal Construction W.A. Ltd Vs. Migliore (1990) 1 N.W.L.R. (Pt. 126) p. 299.
On ground 2 of the Notice of appeal, learned counsel for the 1st Respondent submitted that the Appellant raised the issue of filing additional authority without Summons or Motion on Notice as a fresh issue in this appeal and that the appellant did not obtain the leave of this court before doing so. That this renders the ground of appeal incompetent. He cited the cases of Global Transport Oceanic & Anor Vs. Free Enterprises Nigeria Ltd (2001) N.S.C.Q.R. 487 and Adicson Moses v. State (2006) S.C.N.J. 190. He urged the court to hold that the appeal is incompetent and should be struck out.
I am quite amazed that the Appellant did not file any reply or reaction to the preliminary objection and no reason has been given for this laxity. Is it to be taken that the appellant has conceded to the preliminary objection or is he just saying let the Court do what seems good in the
circumstance? Well whatever he may seem to be saying is not important. What is important is that this Court still has a duty to consider the preliminary objection whether or not it meets the requirement of the law. It is not automatic that where a party does not file a reply to a preliminary
objection the Court should uphold same even where there is no substance whatsoever.
Now the first issue for consideration here is that there is nowhere on the face of the notice of appeal any indication that any fees were paid for at the time of filing the notice of appeal. The 1st Respondent’s counsel had urged this court to hold that this Notice of appeal is incompetent. Order 6 Rule 7 of the Rules of this court provides:-
“The Registrar of the court below shall endorse on the notice of appeal or application the fees paid thereon, receipt number and the date of payment.”
The rationale behind this Rule is to guard against unnecessary disagreement as we have at hand. The duty of having to endorse on the Notice of Appeal the fees that have been paid is that of the Registrar of the court below.
But where he failed to endorse the fees on the said notice, will that be enough to render the said notice incompetent? I do not think so. To hold otherwise will be swimming in the ocean of technicality which our Courts have since navigated out of. See Adelusola Vs. Akinde (2004) 12 N.W.L.R. (Pt.887) 295, Ndayako Vs. Dantoro (2004) 13 N.W.L.R. (Pt.889) 187. I agree that parties are bound by the record of appeal. See Larmie Vs. DPMS (Supra). So looking through the record of appeal before me, from page I to the end, the Registrar of the Court below has not endorsed any of the processes filed by the parties. For instance on page 31 of the record is the “Additional Authority” filed by the 1st Respondent on 22nd April, 2005.
There is nothing on the face of the document to show that it was ever filed. No stamp, no endorsement as to date or fees paid and yet the lower Court acted on it. So also the reply by the Appellant on pages 32-33. This attitude of the Registrar consistently runs through the entire record including the Notice of appeal. I think the Registrar of the Court below must be reminded of the need to be more meticulous in the discharge of his statutory functions. It will not be in the interest of justice to visit the Registrar’s ineptitude on the Appellant. So, the preliminary objection
on that ground must fail.
Learned Counsel had submitted that this appeal is challenging the exercise of discretion of the Lower Court and that the grounds of appeal must be that of mixed law and facts. Unfortunately, the learned counsel for the 1st Respondent did not elaborate on what he meant by “improper exercise of discretion” and has not identified any ground of appeal which he says combines mixed law and fact. I too have not identified any. The objection on this ground hangs in the air and has nothing to support same.
Accordingly, it is also overruled.
On ground 2, it was argued that it does not arise from the judgment of the learned trial judge. That is not correct.
Appellant had raised the issue on page 32 of the record of Appeal when he filed a reply to the argument of the 1st Respondent in his “additional authority” paper. The appellant told the court in his reply that the trial judge had become functus officio for which the court made a ruling on page 41 of the Record as follows:-
“This Court is not functus officio the issue of jurisdiction raised by the 181 Respondent”
If the matter was not canvassed by the 1stRespondent, where then did the learned trial judge get the material to make the above ruling? Ground 2 in my opinion is not a new issue having regard to the judgment and decision of the Court below.
On the whole, the preliminary objection lacks merit and is hereby overruled.
Two issues were formulated by the Appellant for the determination of the appeal as follows:-
“(1) Having regard to the facts and circumstances of this case, can it be said that, the 1st Respondent herein, had clearly and expressly waived his right to complain about the noncompliance by the Appellant with the provision of Order 42 Rules 5 (6) of the Kaduna State High Court (Civil Procedure) Rules, 1987?
(Ground One)
(2) Having regard to the clear and unambiguous provision of Order 2 Rules 1 and 2 of the Kaduna State High Court (Civil Procedure) Rules. 1987, is it permissible for the 1st Respondent to complain about non-compliance with the Rules of the Court after proceedings had been concluded and the matter adjourned for judgment? (Ground Two)”
The 1st Respondent’s Counsel also decoded two issues for determination thus:-
- Whether the issue of non-compliance with the provisions of Order 42 Rules 5 (6) of the Kaduna High Court (Civil Procedure) Rules 1987 did not rub the trial court of its jurisdiction to entertain the certiorari application. This issue is derived from ground one of this appeal.
- Whether the Appellant should be allowed to resile on appeal from a procedure adopted by both parties at the Lower Court.
As a preliminary observation, let me quickly say that this second issue by the 1st Respondent does not derive from any of the two grounds of appeal filed. It just flies from the blues and this is not allowed in this Court.
Every ground of appeal must take its root from the judgment, ruling or decision of the trial Court before it can be said to be competent. It follows also that issues formulated either by the appellant or Respondent must of necessity flow from the grounds of appeal. Any issue which does not flow from the grounds of appeal is incompetent and must be struck out. See Owhonda Vs. Ekpechi (2003) 17 N.W.L.R. (Pt.849) 326, Igbinoba Vs. Igbinoba (2003) 2 N.W.L.R. (Pt.803) 39. Accordingly, issue two formulated by the 1st Respondent is hereby struck out.
I hold the view that this appeal can be affectively determined on the two issues formulated by the appellant. I shall determine the two issues together as they are interrelated.
On the first issue, the learned counsel for the appellant submitted that the 1st Respondent clearly and expressly waived his right to complain about the non-compliance by the Appellant with the provision of Order 42 Rules 5 (6) of the Kaduna State High Court (Civil Procedure) Rules, 1987 when the 1st Respondent, after becoming aware of the said non-compliance, took positive steps by filing two separate counter affidavits to the Appellants’ Motion on notice and opposed the grant of the said motion through the oral submissions of his counsel before the court below. That the failure of the appellant to file affidavit of service was an irregularity which can be waived and had been waived by the 1st Respondent. That there is a difference between breach of rules of court and breach of statutory provision.
Breach of Rules of Court results in mere irregularity but breach of statutory provisions results in a nullity, he contended and cited the following cases in support viz:-
Chief Onwuka Kanu Vs. Chief Victor Odili & Ors (1992) 6 S.C.N.J. 76, Odu’a Investment Co. Ltd Vs. Joseph T. Talabi (1997) S.C.N.J. 600, NALSA & Team Associates Vs. NNPC (1991) 11 S.C.N.J. 51 among others.
On this issue also, the learned counsel for the appellant submitted that it is incumbent upon the party complaining of an irregularity in the procedure to show what injustice he has suffered by reason of the irregularity but that in the instant appeal, the 1st Respondent failed to show this injustice. He relies on the case of Eno Okon Ekpuk Vs. Basser Ita Okon (2002) F.W.L.R. (Pt. 84)
145 and Shell Trustees (Nig) Limited Vs. Imani & Sons Limited (2000) 6 N.W.L.R. (Pt. 662) 639. And finally, that the Court below erred when it relied heavily on the case of Onyemaizu Vs. Ojiako (Supra) when the facts in the two situations are not the same.
On the second issue, learned Counsel for the appellant contended that under the Kaduna State High Court (Civil Procedure) Rules 1987, the 1st Respondent does not have the right to challenge the competence of the Appellant’s motion on notice on the ground of non – compliance with the rules of Court after the said motion had been heard by the Court. That the right of the 1st Respondent to do so is only exercisable either before or at the hearing of the motion and not after the motion had been heard by the Court and same adjourned for judgment. Moreover, that a challenge of the competence of any process or document cannot be by way of “additional authority” but by a summons or a motion on notice as clearly stipulated under order 2 Rule 2 (2) of the Kaduna State High Court (Civil Procedure) Rules, 1987. That by the said document, the 1st Respondent re-opened his case without making a formal application to that effect. That this procedure is unacceptable and misconceived in law. He relies on the case of Solomon Ajao v. Jos Metro Development Board (2006) All F.W.L.R. (Pt. 302) 19. On the whole the appellant’s Counsel urged this Court to allow this appeal on both issues.
In his reply, the learned Counsel for the 1st Respondent submitted that the non compliance with the provision of Order 2 Rule 5 (6) of the Kaduna State High Court (Civil Procedure) Rules 1987 by the Appellant affected the jurisdiction of the trial Court. Citing the case of Alhaji Taofeek Alao v. ACB Limited (2000) S.C.N.Q.L.R. Vol. 2 (1987) he submitted that a plaintiff must satisfy the trinity conditions so laid down before he can activate the jurisdiction of the Court. That the provision that an affidavit of service “shall” be before the Court on the hearing of the motion or summons is mandatory and failure to file the said affidavit was fatal to the appellants’ case. He relies on the cases of Amadi v. N.N.P.C. (2000) 6 S.C.N.J. I, UNN Teaching Hospital Management Board & Anor v. Nnoli (1995) 8 N.W.L.R. (Pt. 363) 376.
Finally on this it was further contended that in so far as it was apparent and clear to the Court below that there was no Affidavit of service filed by the Applicant as required by order 42 Rule 5 (6) of the Rules of Court, it was in order for the Court below to have declined jurisdiction citing the cases of Onyemaizu v. Orjiako (Supra) and University of Ilorin & Anor v. Idown Oluwadare (2006) N.S.C.Q.R. 18. He urged the Court to dismiss the appeal on this issue. Learned Counsel for the 1st Respondent did not proffer any argument on issue two.
Order 42 Rule 5 (6) of the Kaduna State High Court (Civil Procedure) Rules, 1987 which is at the centre of this appeal provides:-
“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 or summons is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state the fact and the reason for it, and the affidavit shall be before the Court on the hearing of the motion or summons.”
Clearly and without any iota of doubt, an applicant who desires relief in the form of an order of certiorari is mandatorily enjoined to verify by an affidavit the names and addresses of persons served with the Originating Motion and the place and date of service. Also, the affidavit must be filed before the motion is entered for hearing and must be before the court on the date of the hearing of the motion. For me, as I understand that provision, it sounds like a pre – condition for the competence of the suit. And that is what it is. In the instant case, no affidavit of service was filed at all.
Undoubtedly, the failure to file the verifying affidavit as in this case means non – compliance with the prescription for application for an order of certiorari under Order 42 Rule 5 (6) of the Kaduna State High Court (Civil Procedure) Rules 1987. This failure, to any mind, is failure to follow the procedure or course laid down for activating or initiating an application for an order of certiorari which is tantamount to the action not being initiated by due process of law and consequently it is a non – fulfillment of the condition precedent to the exercise of jurisdiction by the court. This condition must be fulfilled before an application’ for certiorari can be entertained by the Court. See Onyemaizu v. Ojiako (Supra), Madukolu v. Nkemdilim (1962) 1 S.C.N.L.R.341.
The Learned Counsel for the appellant had contended and argued extensively that this non – compliance is an irregularly which by Order 2 Rules 1 & 2 of the said Court Rules could be waived and cannot be fatal to the suit citing in the process a long line of cases. But I need to say here that there is a clear difference between a defect in the competence of an action and a defect in procedure. Where there is a defect in the competence of an action, it spells doom and absence of jurisdiction of the Court to entertain same. Where however the non – compliance is held to be an irregularity in the process of adjudication, it may not be fatal to the action. The former rubs on the jurisdiction of the Court while the later does not. Where there is an omission or mistake in procedure or practice, this is regarded as an irregularity which the Court can and should rectify so long as it can do that without prejudice. See Odu’a Investment Company Limited Vs. Talabi (1997) S.C.N.J. 600. N.A.L.S.A. & Team Associates Vs. N.N.P.C. (1991) 11 S.C.N.J. 51, Shell Trustees Limited Vs. Imani & Sons Limited (2000) 6. N.W.L.R. (Pt. 662) 639.
In the instant case, the failure by the appellant to fulfil in full the conditions laid down by Order 42 Rule 5 (6) of the High Court (Civil Procedure) Rules of Kaduna State 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. This Court took the same stance in the case of Onyemaizu v. Ojiako (Supra) which was rightly followed by the learned trial judge. See Saude v. Abdullahi (1989) 4 N.W.L.R. (Pt.116) 387.
I need to emphasise here that Rules of Court are meant to be obeyed. They are not merely made for the fun of it.
They regulate the proceedings in Court and have the force of law and are therefore binding on the parties. See Solanke v. Somefun (1974) 1 S.C. 141.
Any applicant who either purposefully or mistakenly flouts any of these rules must do so with the full consequences in mind. This is so because although it is not every non – compliance with the rules that attract sanction or penalty of either dismissal or striking out of the process, where the Court comes to the conclusion as in the instant case, that the non – compliance affects the root, foundation or props of the case, the Court will not treat it as an irregularity but as nullifying the entire proceedings. See Sken Consult Nigeria Limited v. Ukey (1981) 1 S.C. 6, Oke v. Aiyedun (1986) 2 N.W.L.R. (Pt. 23) 548, Wimpay Nigeria Limited & Anor v. Balogun (1986) 3 N.W.L.R. (Pt. 28) 324, and Dairodu v. Ologundudu & Ors (1986) 4 N.W.L.R. (Pt. 33) 104.
In conclusion, it is my well considered opinion that the learned trial judge was on firma terra when he struck out the case of the Appellant for lack of jurisdiction.
Jurisdiction is a threshold issue and any proceedings made without jurisdiction no matter how well conducted, is a nullity. So a Court immediately it becomes aware that it lacks the capacity to entertain the matter, however the awareness comes, should discontinue with the hearing of the case. It was not out of place for the learned Counsel for the 1st Respondent to point out to the trial Court of its lack of jurisdiction in the matter even though the matter had been adjoined for ruling. Issue of jurisdiction can be raised at any time during the trial and even for the first time on appeal. See APC Limited v. N.D.I.C. (NUB Limited) (2006) 15 N.W.L.R. (Pt. 1002) 404, Onwudiwe Vs. F.R.N. (2006) 10 N.W.L.R. (Pt. 988) 382.
On the whole, the two issues are hereby resolved against the appellant. I uphold the decision of the lower Court which struck out the appellants’ case for lack of jurisdiction. I award N30,000.00 costs to the 1st Respondent only against the appellant.
Other Citations: (2009)LCN/3271(CA)
