Pastor I. F. Olaniyan & Ors V. Mr. E. O. Oyewole & Ors (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an Appeal by the Claimants/Appellants against the ruling of the High Court of Justice, Kwara State, holding at Omu-Aran delivered on 13/6/06 by Honourable Justice M. A. Akoja. The facts that led to this appeal are as follows:
The Plaintiff/Appellants on 28th February, 2006 took out a Writ of Summons pursuant to the Kwara State High Court (Civil Procedure) Rules 2005. Upon the receipt of the originating process by the Defendants/Respondents’. Counsel, a. conditional Memorandum of Appearance was filed for and on behalf of the Defendant/Respondents. Thereafter counsel to the Defendants/Respondents filed a motion on the 4th of April, 2006 asking the court to strike out the Plaintiffs’ suit for lack of competence.The Writ of Summons was served on the Defendants/Respondents on 8/3/2006; the conditional memorandum of Appearance was filed on 13/3/06.
On 2nd May, 2006 the motion was argued by both counsel and ruling reserved. On 13/6/06 the court gave a considered ruling and struck out the suit for being in-competent for non-compliance with the mandatory provisions of the rules of court. Consequent upon this decision the Plaintiff/Appellants filed this appeal. The Appellant’s Counsel identified the following issues for determination;
“(1) Whether it was lawful for His Lordship who was a judge of the Omu-Aran Judicial Division on 2/5/2005 when he took the motion and had been transferred to florin Judicial Division since 1/6/2006 to deliver his Ruling on 13/6/2006 without a Fiat from the Chief Judge of Kwara State? – Ground 1.
(2) Whether the procedure adopted in taking the motion was lawful when the mandatory provisions in Orders 33 and 34 of the Kwara State High Court (Civil Procedure) Rules, 2005, were not applied? – Ground 2.
(3) Whether it was right for the learned trial judge to strike out the suit on the 2 grounds in Grounds 3 and 4 at page 46 of the record? – Grounds 3 & 4.
The Respondents’ counsel also identified three issues for determination. They are stated below:
“(1) Whether the suit filed by the Claimants/Appellants at the lower court was competent as to vest the trial court with jurisdiction.
(2) Whether the Defendants/Respondents application for striking out of the suit was properly before the trial court
(3) Whether it was lawful for the trial judge to deliver the ruling of 13/6/06. ”
To my mind, issue one identified by the Appellants Counsel is the same as issue three of the Respondent’s Counsel. Issue two of the Appellants is the same as issue two of the Respondents. Issue three of the Appellants is the same, as issue one of the Respondents. For the purpose of determining this appeal I will adopt the issues as postulated by the Appellant’s counsel.
Learned Appellants’ counsel argued that the learned trial judge was transferred from Omo-Aran Judicial Division on 1/6/2006, to ilorin Judicial Division. His Lordship took arguments in respect of the motion on 2/5/2006 and delivered his ruling on 13/6/2006. He submitted that the trial Judge acted contrary to S. 72 of the High Court Law of Kwara State. He submitted that without a fiat from the Hon Chief Judge of Kwara State, the trial Judge was wrong to have delivered the ruling on 13/6/2006. In reply learned Respondents’ Counsel argued, that there was nothing on record to show that the learned trial Judge heard the parties but delivered the ruling in another Judicial Division. He submitted that parties are bound by the records of the Court and the Learned Counsel cannot give evidence in his brief of argument. He submitted that even if the learned trial Judge had delivered the judgment after his transfer to Ilorin, the ruling was thereby not rendered a nullity since by virtue of S. 3 (1) & (2) of the Kwara State High Court Law there is only one High Court in the state and in accordance with S. 67 of the same law, the creation of Judicial Divisions was merely for administrative convenience. He also submitted that S. 72 referred to by learned Respondents’ Counsel was inapplicable to this case.
On this issue, I agree with learned Respondents’ Counsel that parties are bound by the records of the court. There is nothing at all on the face of the record to show that at the time the ruling was delivered, the learned trial Judge had been transferred from one Judicial Division to another. This court as an appellate court is bound by the record, of proceedings before it and cannot depart from it on the ipsi dixit of counselor speculation. Sommer v. FHA (1992) 1 NWLR Pt. 219 Pg. 548.Secondly, even if it were so, such an event would not result in the reversal of the ruling of the court. There is only one High Court in Kwara State by virtue of S. 3 (1) & (2) of the High Court Law Cap. 67 Laws of Kwara State which states as follows:
S. 3-(1)there shall be established a High Court of Justice of the State.
(2) the name of such court shall be the High Court shall consist of not Less than two other Judges.”
The decided authorities are to the effect that there is only one High Court in each state, the creation of Judicial Divisions is for administrative convenience to enable the wheels, of Justice run more smoothly. The divisions are not separate or distinct but rather branches of the same High Court. See Egbo v. Laguma (1988) 3 NWLR Pt. 80 Pg. 109; Qua Steel v, Bassey (1992) S NWLR, Pt. 65 Pg. 67; Merchant Bank of Africa v. Owoniboys Technical Services (1994) 8 NWLR Pt. 365 Pg. 705 at 716 -5; Aliyu v. Ibrahim (1992) 7 NWLR Pt. 253 Pg. 361; Ogigie v. Obiyan (1997) 10 SCNJ 1; Onagoruwa v. I.G. (1991) 5 NWLR Pt. 193 Pg. 593. Even without a specific fiat from the Hon. The Chief Judge of the State, the learned trial Judge can deliver the ruling after he was transferred to another Judicial Division. There is no provision in the High Court Law or Rules of Court preventing him from doing so. The point has to be made yet again that matters of transfer orders, Judicial Divisions and fiat etc being strictly administrative, do not go to jurisdiction and therefore a judge of a Judicial Division of the state does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same state. See Egbo v. Agbara (1997) 1 SCNJ 91 at Pg. 107. The 1st issue is resolved against the Appellant.
The 2nd issue is whether the learned trial Judge was right in taking the motion when the motion was contrary to the mandatory provisions in Or. 33 & 34 of the Kwara State High Court Rules 2005. Other than the inclusion of a photocopy of Or 33 and Or 34 in his brief of argument learned Appellants’ Counsel did not proffer any argument in support of the ground of appeal postulating that it was wrong of the trial Judge to have taken the motion. The brief filed by the learned Appellants’ counsel in support of this appeal has not been at all helpful and fall short of expectation. It is the duty of counsel to assist the court. Issues, were raised but little done to argue them.
Learned Respondents’ Counsel argued on this point that the appropriate action was taken against a defective originating process by the entering of conditional appearance within time and the prompt filing of a motion on notice pursuant to Or 2 (2) Or 4 r. (2) & Or. 11 r. (1) urging the court to strike out the suit on the ground that it was improperly constituted and thus incompetent. He submitted that Or. 4, r. 1 & 2 of the High Rules provide for the moving, of an application to set aside the proceedings for any defect and such application must be made
expeditiously. The Respondents complied by filing the motion challenging the jurisdiction of the court within the 30 days allowed by the rules to file his pleadings. He argued that the learned trial judge was right to have resolved the issue of jurisdiction once raised expeditiously. He cited Okolo v. UBN (2004) 1 SCNJ 113 at 115; AG Kwara v. Olawale (1993) 1 NWLR Pt. 272 Pg. 645 and674 ; Arjay v. Airline (2003) 2 SCNJ 148 at 153.
The learned Applicants’ Counsel did not as said earlier proffer any argument to show the relevance of Or 33 & Or 34 to the issue at hand. Suffice it to say with respect that it is not appropriate for counsel to throw an order Of a case in vacuo at the court in his brief of argument without any attempt to link the authority with the issue at hand.
The purpose of brief writing is to assist the court in appreciating the issues in controversy and thereby facilitate easy resolution of those issues. See Isiyaku Musa Jikantoro v. Alh. Haliru Dantoro (2004) 5 SCNJ 152. The Appellants’ Counsel did not at all explain his grievance and argument in aid of the said grievance on this issue in his brief of argument. One had to have recourse to the grounds of appeal to understand the issue raised since the only argument from the Appellants’ Counsel on, this issue is as stated in. the particulars to that ground of appeal. Strictly speaking, after issues are formulated, the court is supposed to concern itself with the arguments based on issues in the party’s briefs and not with the grounds of appeal. See Chief Adeoye Adio Fafunwa & Anor v. Chief Nathaniel Adibi & Ors.(2004) 7 SCNJ 322.
From what can be gleaned from the ground of appeal, the learned Appellants’ Counsel’s position seem to be that the motion should have been, taken at pre trial conference stage, after pleadings had been completed in accordance with Or 33 & 34 of the High Court Rules. I have looked at the record of proceedings, particularly the Appellant’s counter affidavit to the motion contained on Pg. 25 – 26 of the record; I have looked at the Claimant/Respondents written address in opposition to the motion contained on pg. 27 – 28 of the record; I have looked at the oral submission of Prince Ijaodola in opposing the application which is contained on Pg. 31 – 32 of the record. Nowhere at the lower court did the learned Appellants’ Counsel raise the issue that the motion should have been brought only ‘at the stage of pre-trial conference to oppose the application. The learned trial Judge had no opportunity to consider this aspect of the issue or to rule on it. Thus this is an entirely new issue brought without leave for our consideration. Be that as it may, Order 11 r. 1of the Rules give room for any motion to be filed and argued at any time or stage during the proceedings. It is my view that the combined effect of Or. 2 r. 2 (2), Or. 4 r 2 (1) and Or 11 r 1 is that the Applicant/Respondent was right in bringing the application to set aside the claimants process for non-compliance with the rules at the time he did and not wait till pre-trial conference because he was obliged by Or 4 r 2.(1) to bring the motion expeditiously before faking further steps in the’ proceedings. I do not think that where there is an obvious default in the originating process, the applicant to set aside such process for irregularity must at all costs and in all circumstances do so only at the stage of pre-trial conference after the close of pleadings. The 2nd issue is resolved against the Appellants.
The 3rd issue for determination and in my opinion the pivotal issue in this appeal is whether or not it was right for the learned trial Judge to strikeout the suit on the basis that it was incompetent because of the non-compliance with the stipulation of Or. 2 r. 2 (2) (a) – (d).
Learned Appellants’ Counsel argued that it was palpably wrong to penalize the claimants for not stating the oral and documentary evidence of the two witnesses to be subpoenaed and for not stating documents not in possession of the claimants at the time of filing the originating process. He submitted that the word “shall” in Or. 2 r 2 (2) of the High Court Rules is purely regulatory since a party is not expected to produce oral and documentary evidence which he does not have.
In reply, learned Respondents Counsel argued that Or. 2 r 2 of the High Court Rules provides for what a valid writ of summons should contain.
He argued that by the combined effect of Or. 2 r 2 and Or 27 r. 1, the writ of summons is to be filed simultaneously with all accompanying documents. He argued that failure to comply with the rules of court with regards to initiation of proceedings goes to the root of the suit and will render the suit competent and rob the court of the jurisdiction to hear the case. He cited Madukolu v. Nkemdilim (1962) 1 All NLR 58. He also submitted that rules of court are meant to be obeyed and a party must accept the negative consequence of disobedience of court orders. He cited Olowu v. Abolare (1993) 6 SCNJ 1 at 22; Solanke v. Somefun (1974) All NLR 526 at 531; Okolo v. UBN (2004) All FWLR Pt. 197 Pg. 981 at 1009. The learned trial court at pg. 39 – 41 of the record of proceedings held inters alia as follows on this issue:
“Accordingly therefore, it is mandatory that this suit must comply with the provisions of Order 2 Rules 2 sub-rule 2 of the Rules of Court which provides for all the documents that must be attached to the writ of summons.
The court would want to observe that the provisions of Order 2 Rule 2 sub-rule of the Rules are very clear and unambiguous. It is trite law that where the provisions of the rules or laws are clear and unambiguous they need only
be given their ordinary meaning. In this case, the rules of court made it mandatory that apart from the statement of claim, list of witnesses to be called at the trial written statement on oath of theses witnesses to be called and copies of every document to be relied on at the trial shall accompany the writ’ of summons.”
His Lordship also held that the law does not envisage the situation whereby the claimant may choose not to invite the other witnesses whose particulars were not given. His Lordship also observed and agreed that the rules of court have not contemplated a situation where there would be two categories of witnesses or where some class of witnesses or documents would be indicated by mere notice of intention to call them without. Their statements on oath pr the mere listing of documents without attaching same.
For emphasis, I also will set out below the provisions of Or. 2 r. 2 (2) of the Kwara State High Court Rules 2005.
“Or. 2 r. 2. (1) Subject to the provisions of these Rules or any applicable law requiring, any proceedings. to be begun otherwise than by a writ, a writ of summons shall be the form of commencing all proceedings.
(2) Except where Order 23 applies, every writ of summons shall be accompanied by:
a) Statement of claim;
b) List of witnesses to be called at the trial;
c) Written statement on oath of the witnesses; and
d) Copies of every document to be relied on at the trial.
(Underlining mine).
I agree with learned Respondents’ Counsel that generally where a law or a rule of practice prescribes a method of commencement of a particular type of proceeding, where such proceeding is wrongly commenced, it would be set aside. See Obajimi v. Att. Gen. Western State (1967) 1, All NLR 31 or (1968) NWLR 96; Udene v. Ugwu (1997) 3 NMLR Pt. 491 Pg. 57 at Pg. 63. The new High Court rules which stipulate that all writs shall be accompanied by all relevant statements and document call for an interpretation in this regard.
All are agreed, that the Or. 2 r. 2 (2) did not contemplate the kind of situation we have on hand in this case. Here we have a situation where the Plaintiff cannot attach all documents to the writ because he is not in possession of them since he intends to subpoen the witness who would eventually tender the document. The question to determine now is whether the word ‘shall’ in Or. 2 r. 2 (2) underlined above is mandatory or directory, or merely regulatory as opined by learned Appellants’ Counsel. If it is mandatory then it means that under every circumstances even where such situation are not ordinarily envisaged by the law, the claimant must supply the statements on oath of witnesses to be called and copies of every document to be relied on at the trial. There is no gainsaying the fact that the word “shall” may be interpreted as mandatory, obligatory or merely directory depending on the con Justiceual usage. See Amadi v. NNPC (2000) 6 SCNJ 1; Edewor v. Uwegba (1987) 1 NWLR Pt. 50 Pg. 513; Ude v. Nwara (1993) 2 NWRL Pt. 278 Pg. 628; Isaac Ogunlayi v. AH Gen. Rivers. (1997) 6 NWLR Pt. 508 Pg. 209 at 224.
As Karibi Whyte JSC said in Amad v. NNPC Pg. 110 of (2000) 10 NWLR Pt. 674 Pg. 76 at 110-113, regulations of the rights of access to court abound in the rules of procedure and are legitimate. However, where the particular requirement constitutes an infringement of the exercise of judicial power by the courts or abridges the citizens right of access to court, it will be inconsistent with the constitution. See also Atolagbe v. Awuni (1997) 9 NWLR Pt. 522 Pg. 536. The word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission: If it is used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly, but if it is used in a directory sense then the action to be taken is to obey or fulfill the directive substantially. See also Ifezue v. Mbadugha (1984) 1 SCNLR 427; State v. Ilori (1983) 1 SCNLR 94.
An interpretation that would make Justice a slave to grammar should be deplored. An interpretation that would convey the intendment of the legislature must always be preferred. I am also of the firm view that rules of court being merely adjectival law should not be elevated to the status of substantive legislation for which there must be strict compliance by the parties and the court.
In the principles of construction of statutes, the courts have adopted a liberal and purposive approach to give effect to the true intention of the law makers. In that sense, the entire statute must be considered and the general object mean to be secured by the statute should be looked at. See Rufus Femi Amokedo v. I G. (1999) 5 SCNJ 71 PDP v. INEC (1999) 7 SCNJ 297, Chief Egolum v. Obasanjo (1999) 5 SCNJ 92.
It is apparent that in introducing the front loading system, (the upfront filing of all documents to be used at the trial is so called) the intention of the maker of the rules of court is to ensure that only serious and committed litigants with prima facie good cases and witnesses to back up their claim would came to court and fewer lame duck claims would find their way into court.
However, there must be a happy medium between balancing the public interest to reduce unnecessary and frivolous claims as against the constitutional right of a party to have his legal counsel conduct his case as he thinks fit.
Also, in interpreting the rules of court, like the interpretation of statutes, they are to be interpreted as a whole and not in isolation. See Consortium C 3632 Lot 4 Nig. V. NEPA (1991) 7 SCNJ I. A wholistic reading of the said rules of court shows clearly that the effect of non compliance ,with the strict letter of the rules is that such non compliance may be treated as a mere irregularity which will not nullify the originating process or subsequent proceedings. See Or. 4 r. 1″(1) stated below:
“Or. 4 r. 1. (1) Where in beginning or purporting to begin any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place,
manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any, document, judgment or order therein.
The claimant’s constitutional right to fair hearing must not be sacrificed on the altar of strict adherence to the rules of court. The rule of court should not be Interpreted to mean that the names and statements of all the witnesses must be loaded upfront and that there is no room for adjustment during the course of the trial. We operate an adversarial system of litigation. In our adversarial system of’ Justice, we, cannot discountenance the sometimes necessary incidence of a witnesses dying or turning hostile before trial and the need to replace such a witness.
A trial court in applying the rules of procedure must look at the circumstances of each case. Let us examine the circumstances of the case at hand. The Claimant’s Counsel did not give the name of the Senior Registrars from the High Court who would be served with subpoena to tender certain documents and the statement of artistes who would render the coglomen of the appellant’s family. The appellant’s counsel at the lower court had argue that these witnesses were witnesses he could dispense with having already filed the statement on oath of the two principal witnesses he intended to call. It is my view that there must be in the interest of Justice room for learned counsel exercise his discretion in the prosecution of his client’s case if the circumstance are such that the latitude granted by the court would not enable him overreach the other side.
Let us look at the extent of latitude sought by the Appellants’ Counsel at the lower court. He listed witnesses he intended to call by subpoena. Not knowing the person whom the High Court would send to tender the Appeal papers, he could not give a specific name at that point in time.
Moreover, the issuance of a subpoena duces tecum against a person to tender a document does not make that person, liable to give evidence on oath or be cross-examined:- See Edoho v. Att. Gen. Akwa Ibom
State (1996) 1 NWLR Pt. 425 Pg. 488 Pg. 498; Famakinwa v. U I (1992) 7 NWLR pt. 255 Pg. 608 at 623 – 624. Moreover Or.39 r.12. (1) provides that a party who desires to call additional witnesses during the course of the trial may do so with the leave of court where the deposition of such witnesses did not accompany his pleadings.
There was no way in the circumstances that the failure of the Appellants to attach the statements of the witness to be subpoened could over reach the Respondents.
Let me say that the general principle is that the rules of court must prima facie be obeyed. If there is non-compliance with the rules, it must be explained and if not unless it is of a minimal kind, no indulgence of the court can be granted. Thus the rules of practice and procedure are aimed at prescribing the procedure for determination and enforcement of rights and obligations which aid legal principles. Their compliance should not be aimed at defeating the ends of Justice and foreclosing fair trial of disputes. See Kalu v. Odili (1992) 5 NWLR Pt. 240 Pg. 130. The purpose of the rules of court and in this instance the 2005 rules is to expedite Justice and to ensure that affairs of court are carried out in an orderly fashion. Thus the court should not be enslaved to the rules or interpret same to cause in Justice by shutting out the claimant from prosecuting and the Defendants from defending the suit. See FSB International Bank Ltd v. Imano Nig. Ltd (2000) 7 SCNJ 65. It is my view that the word ‘shall’ in Or.2 (2) of the High Court Rules is used in a directory sense and the Claimant is only obliged to fulfill the directive ‘substantially’ and not necessarily ‘exactly.’ With respect, I am of the view that the learned trial Judge was wrong in his ruling when he held that Order 2 and the Rules made thereunder does not countenance any variable circumstances and that at all events, statements on oath and all documents to be tendered (whether available or not) should be filed with the writ. There existed only an irregularity that cannot vitiate the, proceedings at the lower court. In my view, the rule is merely directory and not mandatory and there is room for maneuver. Suffice is to say that I agree with Appellants counsel that while filing the writ he had complied substantially with the provisions of Or. 2 r. 2 of the Kwara State High Court Rules.
Since I hold the view that issue three is the pivot of the whole appeal, and it is resolved in favour of the Appellants, this appeal is allowed. The case is hereby sent back to the High Court to be tried by another judge. N10,000 costs against the Respondents for the Appellants.
Other Citations: (2007)LCN/2442(CA)
