Oliver Onyali & Anor V. Chief Nwankwo Okpala & Ors (2000)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
This appeal is against the ruling of M.A. Onyuike J. of the Anambra State High Court sitting at Awka. The particular ruling, dated 9th June, 1997, is in respect of suit No. A/MICS/22/97. Respondents in the instant appeal had applied for and were granted leave to apply for an order of certiorari to remove to the High Court for the purpose of the judgement of Mbailinofu Customary Court being quashed. The appellants before us were respondents at the court below and their appeal is against the order of the court which granted the applicants the leave they sought.
By their notice of appeal, appellants filed three grounds of appeal hereunder reproduced without their particulars. These are:
Ground 1
Error in law:
The learned trial Judge erred in law granting applicants/respondents leave to apply for judicial review, to wit, an order of certiorari, when the application exparte for leave did not satisfy the requirements of Order 37 rules 3 (1) and (2) of the High Court Rules, 1988.
Ground 2
Error in law:
The learned trial Judge erred in law granting applicants/respondents leave to apply for judicial review when all the documentary evidence before it are inadmissible in law.
Ground 3
Error in law:
The learned trial Judge erred in law by granting leave to the applicants/ respondents to apply to remove the judgment of the Customary Court, Mbailinofu to the High Court for same to be quashed, when the applicants failed to make a prima facie case that entitles them to the relief.
Arising from the above grounds of appeal, the appellants presented three issues for determination in the appeal viz:-
(i) Whether the respondents in their application for leave, satisfied the requirements of Order 37 rules 3(1) and (2) of the High Court Rules, 1988 and if they failed to satisfy same whether the failure does not defeat the application and consequently the leave granted.
(ii) Whether Exh. ‘A’, ‘B’ and ‘C’ were properly in evidence and if they were not, whether leave to apply for certiorari ought to have been granted in the face of their exclusion and.
(iii) Whether the respondents made out a prima facie case in their application that would have entitled them for leave to apply for order of certiorari.
On Respondents’ part a questionable effort was made at paragraph 7 of their brief, on page 2 to present four issues for determination. The four issues purportedly formulated by the respondents are these:-
(1) Whether there is a proper and valid appeal.
(2) Whether the Respondents in their application for leave satisfied the requirements of Order 37 rules 3(1) and (2) of the High Court Rules, 1988.
(3) Whether Exhibits ‘A’, ‘B’ and ‘C’ were properly tendered in evidence.
(4) If the answers to 2 and 3 above are in the negative; what is the effect?
The grounds upon which the present appeal stands have been reproduced supra. There are only three grounds to this appeal.
It is, undoubtedly, wrong for a party to an appeal be it the appellants, or respondents, as in this case, to formulate more issues than the grounds upon which the appeal legally arose. Decisions abound and have indeed become common place stating why proliferation of issues as embarked by the respondents should be frowned at. It is neither the number of issues nor indeed the grounds of appeal from which issues are distilled that determine the success of a party to the appeal. It is the clarity, conciseness, and purposefulness with which such grounds are couched and issues formulated and argued that eventually determine the successful party.
See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128, (1996) 7 SCNJ 165; Onyioha v. Ayashe (1996) 2 NWLR (Pt.432) 567. In truth the first issue advanced by the Respondents for the determination of this appeal is a preliminary objection in respect of which Respondents in paragraph 6 of their brief claimed that notice had been filed. I have not been able to trace the stated notice from the records of appeal at my disposal. The presentation of such an objection as an issue by itself in respondent’s brief is curiously untidy.
By virtue of Order 3 rule 15 sub rule 2 of the rules of this court a distinct stage and remedy has been put in place in the appeal process. By this rule of court an appeal is abated by or survives the objection raised against it. This is the stage at which the competence of the intended appeal is raised and the court’s decision thereto determines the further fate of the appeal. The appeal in the event of the objection’s failure proceeds to argument and full hearing. Where the objection is sustained, the appeal from that point in time and perhaps hence- forth ceases to be. See Seikegba v. Penawou (1999) 9 NWLR (Pt.618) 354 at 363.
It has become fashionable as did the Respondents to ignore the provision of Order 3 rule 15 of the Court of Appeal Rules. The significance of the facility offered by this rule of court cannot be over-emphasized.
Order 3 rule 15 sub-rule 3. provides:-
“If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may make such other order as it thinks fit.”
Ordinarily the first issue presented by the Respondents would have been ignored. The issue did not emanate from the grounds of appeal. See Erimwingbovo v. Amayo (1994) 3 NWLR (Pt.332) 365.
The objection raised by the respondents inspite of the non-compliance with the provision of the rules of this Court referred to supra, will be considered. The objection has touched on the competence of this Court, as well, to proceed to hear the main appeal. It is our duty, in circumstances such as this, to first resolve the issue of competence of the appeal before proceeding to hear same if at all. See Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt.448) 255 at 268, Kalio v. Kalio(1977) 2 SC 15; Barclay’s Bank v. Central Bank of Nigeria (1976) 6 SC 175; Adigun v. Attorney General ,Oyo State (1987) 1 NWLR (Pt.53) 678.
Now to the Respondents’ objection as to the competence of the appeal. Respondents contend in their brief that Appellants require leave of court and which leave had not been acquired before the present appeal was filed. This appeal is against an ex-parte order of the Court below. Such an appeal without leave of court is incompetent. Respondents further argue that Appellants cannot avail themselves with S.220(1)(g) and S.220(2)(a) of the 1979 Constitution. Appellants have no right of appeal from the decision of any High Court granting the Respondents’ unconditional leave to defend an action.
The second limb of respondents’ objection relates to the grounds of appeal themselves. It is submitted that grounds 1 and 3 in particular involve questions of mixed law and fact making the acquisition of the leave of court a necessary precondition for their competence. Leave has not been obtained so the appeal which emanate from the grounds has become incompetent. Respondents cited the following cases: Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; (1987) 12 SC 14; Ajibade v. Pedro (1995) 5 NWLR (pt.24) 257 and Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587 at 595. It is urged that the three grounds of appeal be struck out and with them the appeal.
The Appellants filed a reply brief. Same was also adopted before us. Therein, Appellant contend that S.220(1 )(b) of the 1979 Constitution grants them the ‘power’ to appeal as of right from the High Court to the Court of Appeal where the grounds of appeal involve questions of law alone. It does not even matter whether the decision appealed against is final, interlocutory or ex-parte. Appellants maintain that all the three grounds of appeal complain of are errors in law. Appellants contend that the case of Odofin v. Agu (supra) referred to by respondents is inapplicable to the issue under consideration and should be discountenanced. Appellants rely on, amongst others: Attorney General of Kwara Slate v. Raimi Olawale (1993) 1 NWLR (Pt.272) 645,(1993) 1 SCNJ 208 at 219; Samuel Okedare v. Oba Ahmadu Adebara (1994) 6 NWLR (Pt.349) 157, (1994) 6 SCNJ 254 at 74; Comex Ltd. v. Nigeria Arab Bank Ltd. (1997) 4 SCNJ 38 at 50; (1997) 3 NWLR (Pt.496) 643 and Paul Nwadike v. Cletus Ibekwe (1987) 4 NWLR (pt.67) 718, (1987) 12 SCNJ 14 at 36.
It is not in dispute that Appellants did not obtain leave at either the lower Court or the Court of Appeal before tiling this appeal. The arrow-point of the objection raised by respondents tends to ask whether it was lawful and right for the appellants to have filed their appeal without leave of either the lower Court or this Court. A positive answer to this question will signify the appellants appeal as being competent and worthy of further consideration while a negative answer will seal the fate of the appeal. The appeal would have become incompetent and therefore not worthy of further consideration by this court.
To answer the question so raised it is necessary to understand what options appellants have as they come to us. S.220 and 221 of the 1979 Constitution provide for two distinct rights of appeal.
S.220(1)(a) and (b) relevant to this appeal provide:
“S.220(1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
(c) …
(d) …
(e) …
(f) …
(g) …
(Italics for emphasis)
“S.220(2) Nothing in this section shall confer any right of appeal:-
(a) from a decision of any High Court granting unconditional leave to defend an action;
(b) from an order absolute for dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from decree nisi on which the order was founded, has not appealed from that decree and
(c) without the leave of a High Court or the Court of Appeal from a decision of the High Court made with the consent of the parties or as to costs only.
S.221 (1) Enacts as follows:
“Subject to the provision of S.220 of this constitution, an appeal shall be from decisions of a High Court to the Court of Appeal, with leave of that High Court or the Court of Appeal.”
A combined reading of the two sections i.e S.220 and S.221 reveals a creation by them of two modes of appeal which enure to Appellants wishing to approach the Court of Appeal.
The appellant whose circumstance is covered by S.220(1) a – g and which circumstance is not excepted by the operation of S.220(2) a – c; will have the door of the appellate court opened to have as of right.
An appellant whose situation is caught by the provisions of S.220(2) and S.221(1) of the 1979 Constitution must seek and obtain leave of either the High Court or the Court of Appeal before he gains legitimate access for the presentation of his appeal. See Agu v. Ayalogu (1999) 6 NWLR (Pt.606) 205. Eze v. Ejelonu (1999) 6 NWLR (Pt.605) 134 CA; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (pt.91) 622. Zamani Lekwot & Ors. v. Judicial Tribunal & Anor. (1993) 2 NWLR (pt.276) 410 at 457.
By the operation of the two sections therefore, appeal to the Court of Appeal is either as of right or with the leave of court. Whether or not an appeal before this Court is incompetent would clearly depend on the extent to which the appeal in form and substance conforms to the statute which allegedly permitted that the appeal be carried through.
In the instant case, Appellants have contended that, and it seems they are right, theirs by virture of S.220(1)(b) being an appeal involving only questions of law, require no leave of either the Court below or the Court of Appeal. The grounds of appeal and their particulars contained in the notice of appeal at p.17 – 19 of the record of appeal have already been reproduced in this judgment. Once it is determined that by these grounds, the appeal is based on three errors of law and which errors were particularised truly as such, the appellants in so far as the preliminary objection against their cause goes, would be home and dry. Here now I ask: are the three grounds of appeal in the instant appeal grounds of law?.
In Nwadike v. Ibekwe the Supreme Court per the dictum of Nnaemeka-Agu, J.S.C, (as he then was), categorised errors in law in to five though not tentative classes thus:-
(i) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, is although applying the correct criteria, it gave wrong weight to one or more of the relevant factors, see Ok. Kelly v. Trust House Forte Plc. (1983) 3 All ER at 456.
(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words, or phrases and inferences drawn therefrom are grounds of law. Ogbechie v. Onochie No.1 pp. 491-492.
(iii) Where a ground deals merely with a matter of inference even if it be an inference of fact a ground framed on, it is a ground of law provided it is limited to admitted or proved and accepted facts.
Edwards v. Bairstow p.55.
For many years, it has been recognised that inferences to be drawn from a set of proved or undisputed facts as distinct from primary facts are matters upon which an appellate court is as competent as court of trial. see: Benmax v. Austin Motor Coy Ltd. (1945) All E.R 326 at 32.
(iv) Where a tribunal states the law on a point wrongly, it commits error in law.
(v) Lastly, I should mention one class of grounds of law which have the deceptive appearance of grounds of fact, id est, where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a jury could have left a case to the jury, there ought to have been more than a scintilla of evidence. So for this rather historical reason a ground of appeal complaining that there was no evidence, or no admissible evidence; upon which a decision or finding was based has always been regarded as a ground of law. See Oders: On pleading and Practice (20th Edition) p.375; also the decision of the House of Lords in Edwards v. Bairstow (supra) at p. 53. In Ogbechie v. Onochie No.1 (supra) p. 491 para. 14, my lord, Eso, J.S.C citing with approval an article by CT. Emery in vol. 100 LOR held: “if the tribunal purports to find that a particular event occurred although it is seised of no admissible evidence that the event did in fact occur, it is a question of law”.
The above dictum had been cited and applied by the Supreme Court in a number of other cases. See Ade Coker v. UBA Plc. (1997) 2 NWLR (Pt.490) 641 and Comex Ltd. v. NAB Ltd. (1997) 3 NWLR (Pt.496) 643. In applying the above principles to the grounds of appeal in the instant appeal, the following form my considered view:
(a) Ground one of the appellants complains of misapplication of the law to wit Order 37 rules 3(1) and (2) by the trial Court to the facts before it.
The professional skill of the Court in its application of the law to ascertained, undisputed, and settled facts here forms the basis of the complaint in this ground. Such a ground of appeal is certainly one of law see Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484; all 2nd and 4th categories in Nwadike v. Ibekwe (supra).
(b) The second ground of appeal decries the admission into evidence of inadmissible evidence by the trial Court. Appellants seem to be saying that the trial court had found the occurrence of particular events using inadmissible evidence as the basis of the finding. See categories 1 and 5 (supra) and also Ogbechie v. Onochie (supra).
(c) The appellants 3rd ground of appeal is repetitive of the 1st ground and would have in any event been explained by the principle No.1 supra.
It is on the basis of the application of the above principles that I agree with appellants counsel. The grounds of appeal complain of the application of the law to ascertain facts. Although the grounds have factual base, they are not by this very fact grounds other than those in law. Indeed, as counsel rightly put it, the law does not hang in the air. In the resolution of disputes every proposition of the law must have a factual base and facts are the fountain head of the law.
I am unable to agree with Respondent’s Counsel that the lower Courts order against which the instant appeal is brought was one which granted respondents unconditional leave to defend an action as to make this appeal incompetent by virture of S.220(2)(b) of the 1979 Constitution. I equally do not agree with counsel that because the appeal emanated from a decision given ex-parte, leave of court is a precondition to the competence of the appeal. I am not unmindful of S.15 of the Court of Appeal Act. In Agu v. Ayalogu (supra) this court has taken a position on the section. It has no effect. It does not legitimately impose on an appellant the burden of obtaining leave before filing an interlocutory appeal once the ground of appeal involves issue of law only.
I hold that the grounds of appeal as contained in appellants notice of appeal are grounds of law. The instant appeal is competent and it shall be resolve on its merits.
It does appear that appellant’s issue 1 and 2 correspond and are the same with respondents’ issue 2 and 3. Respondent’s 4th issue is equally subsumed in appellant’s 3rd issues. For the determination of the appeal therefore the 1st and 2nd issues formulated by the appellants will be considered. The 3rd of their issue being repetitive might be ignored.
Appellants contend under their first issue that respondents did not satisfy the requirements of Order 37 rule 3(1) and (2) of Anambra State High Court Rules, 1988. The respondents failure was fatal to the order of leave the Court eventually granted. It is argued that the statement in support of respondent’s application did not disclose the relief respondents were seeking. Rather than state the relief the respondents would seek in the application on notice, the statement only disclosed that the ex-parte application was seeking for leave to apply for the order of certiorari against the judgment of Mbailinofu Customary Court on ground of lack of jurisdiction.
Secondly, respondents did not file along with and in support of their application for leave the required affidavit in verification of the facts relied upon by the applicants. The affidavit which contained three terse paragraphs did not contain facts in support of the application for leave. The documents relied upon including the judgment of the Customary Court the subject of the application for leave were not exhibited in the affidavit. Instead, these documents were annexed to the statement in support of the application. The absence of the necessary affidavit verifying the facts relied on in support of application was fatal to the application and should by virtue of Order 26 rule 3(2) of the High Court Rules be set aside. Appellants counsel cited the following cases in their brief to support his arguments. Bank of Baroda. Merchantile Bank (Nig.) Ltd. (1987) 3 NWLR (Pt.60) 233, (1987) 6 SC 341 at 350; In Re: Appolos Udo (1987) 4 NWLR (Pt.63) 120 at 126 and Sunday Oyawole v. Adamu Shehu (1995) 8 NWLR (pt.414) 484.
For the 2nd issue, Appellants argue that all the documents relied upon by the respondents were either photo-copies or were not certified as true copies. Exh. ‘B’ the judgment of the Customary Court is a photocopy of a certified true copy. Exh. ‘C’ the claim in the Customary Court suit No. NWCC/20/97 was not certified too. These document by virtue of S.109(1) of the Evidence Act were public documents. S.111 and S.112 makes certification mandatory and so also the use of originals. Further more, these documents were not exhibited for the Court to make use of same. The lower Court had nothing before it as the basis of the order it granted. Appellants rely on the following: Ex-porte Adeyemi Gbesan & Anor (1969) 1 NMLR 69; Zamani Lekwot & Ors. v. Judicial Tribunal (supra); Phillip Anatogu v. HRH Igwe Iweka II & Ors. (1995) 8 NWLR (Pt.415)547,(1995) 9 SCNJ 1 at 16 among others.
Under the 3rd issue appellants argue that the Court below was called upon to exercise its discretionary powers which function could only be performed on the availability of some basic facts. Such a prayer is never granted automatically. The perculiar nature of the procedure involved made it mandatory for applicants to provide sufficient evidence in support of the application and in verification of the statement that had been filed along with the application. These two have been shown to be lacking. Nor was the judgment sought to be quashed equally exhibited and these lapse were fatal to applicants prayers such that it should not have been considered. Reference was made to Gani Fawehinmi v. Col. Halilu Akilu (No.1) (1987) 4 NWLR (Pt.67) 797, (1987) 12 SC 136 at 216, and Magnusson v. Koiki (1993) 9 NWLR (pt.317) 287, (1993) 12 SCNJ 114 at 124.
Appellants asked that the appeal be allowed, and the order of the lower Court set aside.
Under respondents’ issue 2, which is to all extent, and substance similar to appellants 1st issue, respondents argue that there was substantial compliance with the requirement of Order 37 rules 3(1) and (2) of the Anambra State High Court Rules, 1988 to justify the order granted by the Court below. To hold otherwise is for this Court to stick to technicalities and this would be wrong. Reliance was placed on Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646 and Consortium M. C. v. NEPA (1992) 6 NWLR (Pt.246) 138. Respondents then asked that if there were irregularities let same be corrected by this Court by the application of Order 26 rule 5 of the Anambra State High Court Rules, 1988. The complaints made by the appellants were to form rather than to the substance of the proceedings. Respondents issue No.3 is same with issue No.2 of the appellants. Respondents contended thereunder that Exh. ‘A’, ‘B’ and ‘C’ were properly received in evidence. It is submitted that in proceedings involving affidavit evidence photocopies of documents are exhibited and the originals sighted during hearing or argument. Furthermore, those of the exhibits which were photo-copies of certified true copies needed no further certification to make them admissible by virtue of S.111(1) of the Evidence Act. Respondents referred to I.M.B (Nig.) Ltd. v. Dabiri (1998) 1 NWLR (Pt.533) 284.
Respondents urged that, since answers to the issues they formulated are all in the negative, the merit of the order of the lower Court has not been affected and should persist. The appeal should be dismissed.
Let us look at Order 37 rule 3, sub rule 1 and 2, and rule 6 which are relevant to this appeal. They are hereunder reproduced.
Order 37(3)(1):-
“No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule”
“(2) and application for leave shall be made ex-pate to the court and shall be supported:-
(a) by a statement selling out the name and description at the applicant, the relief sought and the grounds on which it is sought and
(b) by affidavit, to be filed with the application, verifying the facts relied on”.
Order 37 rule (6)(1):-
“Copies of the statement in support of an application for leave under rule 3 shall be served with the notice of motions or summons and subject to rule 2, no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement”.
(Italics for emphasis)
Looking at the order, rules and sub-rules supra, it appears to me that the words therein used are clear, and unambiguous. It has become trite that we must ascribe to these words their natural and ordinary meaning .. See Kaugama v. Nee (1993) 3 NWLR (Pt.284) 681 CA; Udoh v. OHMB (1993) 7 NWLR (PI.304) 139 SC; Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258 SC; Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 SC; and Rossek v. ACB Ltd. (1993) 8 NWLR (pt.312) 382 SC. In doing just that, I want to understand the relevant order, rules and sub- rules of rules of the High Court of Anambra State to mean in relation to the instant appeal as followings:-
(1) Leave of court must by ex-parte application be obtained before making a valid application for a order of certiorari.
(2) The ex-parte application for the mandatory leave of the court must be accompanied by a statement and an affidavit verifying the facts relied upon.
(3) The accompanying statement must set out the name and description of the applicant, the relief he seeks and the basis upon which the relief is sought.
(4) A combined reading of rule 3(2) and rule 6(1) in the circumstance of the instant appeal fully justifies appellant’s counsel submission that respondents did not as ‘odered’ specify the relief they were to seek in the event of obtaining the leave for which they applied. It is not correct for the Respondents in stating the relief they sought to state as follows:-
“The Applicants seek the leave to apply for the order of certiorari to quash the judgment of Mbailinofu Customary Court delivered on 29th day of April, 1997 in suit No.AWCC/20/97 on ground of lack of jurisdiction.”
Although at that stage it was ‘leave’ of court the Applicants were applying for, ‘relief’ as envisaged by the two rules of Order 37 refers to the eventual remedy which Applicants had set out to acquire. In the instant case respondents were seeking as relief the lower court’s eventual order of cerrioriari, in the event of their being granted leave to so apply, to quash the judgment of Mbailinofu Customary Court.
There was this added complaint about the affidavit which respondents purportedly used in verifying facts contained in their statement in support of the application for leave. The affidavit, Appellants contend verified nothing. The documents relied upon by the Applicants in proof of those facts material to the application were not exhibited. Instead, these documents were annexed to the supporting statement. This procedural lapse was equally fatal and ought to have defeated the application of the Respondents for leave at the Court below, submitted the Appellants.
The 2nd limb of Appellants’ arguments in respect of the first issue for determination cannot equally be faulted.
It appears to me that, Respondents did not appreciate the special nature of the proceedings provided for by Order 37 of the Anambra State High Court Rules, 1988. Proceedings pursuant to this order are commenced by and secured on the basis of the application made to the court.
One very important attribute of such proceedings is that, applications or motions pursuant to them are usually supported by affidavits. At times, these affidavits are with exhibits. They do come also, without these exhibits depending on the facts the affidavits seek to verify and prove. In applications of this nature, Applicant must state fully in his affidavit the facts on which he would rely in seeking the order or relief he sets out to obtain. Applicant must realise that all facts not deposed to or documents not exhibited would not avail him.
In the instant case, the statement required by virtue of Order 37 rule 3 sub-rule 2(a) play the same role pleadings play in suits commenced by writs. By the peculiar procedure provided for by the same rule of court only affidavit evidence is open to Applicants in proof of all such averments the statement contained. Averments in these accompanying statement like averments of facts in pleadings unless admitted constitute in evidence. Only affidavits provide the required evidence. See Salami v. Oke (1987) 4 NWLR (Pt.63) 11 SC; Magnusson v. Koiki (1993) 9 NWLR (pt.317) 287. For the very fact that the application under reference was ex-parte made the issue of admission of certain averred facts out of place. Thus, where as in the instant case, the affidavit in support of Respondents’ application did not contain all such facts which applicants were to rely upon, there was clearly a breach of the rules of court. Yet these rules are meant to be obeyed. The rules bind parties to the proceedings and regulate the very proceedings by which a relief is sought.The rules should have the force of law.
In Solanke v. Somefun (1974) 1 SC 141 the Supreme Court, per Sowemimo, J.S.C (as he then was) stated thus:-
“Rules of court are meant to be complied with… Rules of Court are made to be followed. They regulate matters in court and help the parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice”.
It is not every instance of non-compliance with rules of court that will attract a reversal of the decision of the lower court on appeal. A distinction has been made between such non-compliance which constitute mere irregularity from those others that go to the root or foundation of the case under reference.
In instances where the court adjudged non-compliance with rules as mere irregularity, lapses are waived and proceedings so affected allowed to persist. See Olusesi v. Oyelusi (1986) 3 NWLR (Pt.31) 634, John & Ors. v. Blakk (No.1) (1988) 1 NWLR (Pt.72) 648; Ajike v. Moladu, (1967) 1 All NLR 268.
However, it has become trite that once the law has prescribed a particular method of exercising a statutory power, such as occurred in the instant case, any other method of exercising same power is excluded. Non-compliance with the enabling law have always been adjudged fundamental. It is held to affect the foundation and the root of the matter. In the instant case non-compliance with Order 37 rule 3 of Anambra State High Court Rules, 1988 affected the jurisdiction of the Court below. The lapse is beyond irregularity. It nullifies the entire proceedings. See Ude v. Nwara (1993) 3 NWLR (Pt.278) 638; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; In Re: Appolos Udoh (1987) 4 NWLR (Pt.63) 120.
In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, the Supreme Court held that a court is competent when:-
(a) It is properly constituted as regards numbers and qualification of the members of the Bench, and no member is disqualified for one reason or another and
(b) the subject-matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(c) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The combined effect of the second and third conditions enumerated above in relation to the instant appeal is that non-compliance with Order 37 rules 3 and 6 of the Anambra State High Court Rules by the respondents has robbed the court of jurisdiction and rendered it incompetent.
In the light of the foregoing, I must and do hereby find for the appellants in respect of the first issue for determination in this appeal.
It may suffice to make a passing comment or two in respect of the 2nd and 3rd issues for determination in this appeal.
Under the 2nd issue, appellants contend that Exh. ‘A’, ‘B’ and ‘C’ were wrongly admitted in evidence. By S.109 (1) of the Evidence Act, the exhibits were, if exhibits they were, public documents. Only certified true copies rather than the copies or photocopies of same were admissible.
I agree with Appellants’ Counsel in respect of exhs. ‘A’ and ‘C’. I am unable to agree with counsel regarding Exh. ‘B’, the judgment of the Mbailinofu Customary Court. Counsel’s submission in that regard is not borne by the record of appeal; it is discountenanced. Exh. ‘B’ to me appears to be certified true copy of the judgment which respondents were seeking leave to apply for an order that same be quashed. By virtue of S.112 of the Evidence Act Exh. ‘B’ was clearly admissible. This does not mean though that Exh. ‘B’ was rightly admitted by the lower court. It could not have been admitted in evidence because there was neither any deposition in respect of the document in the affidavit of the respondents nor was it exhibited and therefore tendered for the lower court’s consideration. Exh. ‘A’ and Exh. ‘C’ being uncertified copies of public documents were not admissible by virtue of S.112 of the Evidence Act. See Ugoh v. BSLGSC (1995) 3 NWLR (Pt.383) 288; Chief Phillip Analogu & Ors v. Igwe Iweka II (supra).
The fact that Exh. ‘A’ and Exh. ‘C’ like Exh. ‘B’ were not tendered before the court, same could not have been legitimately admitted by the court below too.
It cannot be disputed that once these wrongly admitted evidence are excluded from the lower court’s record, the material left before the Court becomes insufficient to sustain the order for leave granted the respondents. The application, as appellants’ counsel submitted, has become bereft of cognisable material upon which the Court can legitimately exercise the discretion to grant the leave. Respondents having not established a prima facie case are not entitled to the relief they got from the Court. See Erokoro v. Government of Cross River Slate (1991) 4 NWLR (pt.185) 322 at 338.
In Ojiako v. Attorney-General of Anambra State (2000) 1 NWLR (pt.641) 375 at 382, I had occasion to state as follows:-
“An appellate court will interfere with a lower court, exercise of its discretionary power if it is shown that in the exercise of such power the lower court had acted under a mistake of law be it substantive or procedural or a misapprehension of the facts before it or in reaching the conclusion it did, the lower court took into consideration irrelevant matters or its decision will work injustly to any or both parties to the matter before it”.
‘That dictum is as relevant to the instant case as it had been to the earlier case. In the instant case, it is glaring that had the lower court properly appraised the evidence before it, an order other than for leave granted the respondents would have resulted from the exercise. Failure to reach the correct conclusion following improper evaluation of available admissible evidence before the trial Court or consideration of wrongly admitted evidence has rendered the discretion exercised by the lower court perverse. See Obioha v. Military Administrator Imo State (1998) 10 NWLR (Pt.569) 205.
It must be seen that the exclusion of the wrongly admitted documents instantly removes the bottom from the Respondents’ case. In the absence of these vital facts, the Respondents certainly could not have made out the prima facie case they were held by the lower Court to have made. See Akinloye v. Eyiyola (1968) NMLR 92; Fadlallah v. Arewa ile Ltd. (1997) 8 NWLR (Pt:518) 546.
Resultantly issues 2nd and 3rd are hereby also resolved in favour of the Appellants.
On the whole, the appeal has succeeded. The order for leave granted respondents being a perverse exercise of discretionary power is hereby set aside. I award appellants cost of N2.000.00.
Other Citations: (2000)LCN/0706(CA)
