Professor Buba Garegy Bajoga V. The Government of the Federal Republic of Nigeria & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
The appeal is against the Ruling of the Federal High Court, Abuja (hereafter referred to as the trial Court) delivered on the 14th day of November, 2003 in Suit No. FHC/ABJ/M/413/2002.
In accordance with Order 47 of the Federal High Court (Civil Procedure) Rules the Appellant had sought and obtained the leave exparte of the trial Court, to apply for Judicial Review by way of an Order of Certiorari to remove into that Court for the purpose of being quashed the Report of the 3rd Respondent Judicial Commission of Inquiry and the Federal Government White Paper containing the views and directions of the Federal Government of Nigeria thereon in so far and to the extent to which they indict, sanction or otherwise adversely or prejudicially affect the Appellant herein. The enrolled Court Order granting leave to bring the application on Notice is in Vol. I Pages 547-548 and Vol. II Pages 828-829 of the printed records.
Therefore, the Appellant filed his Originating Notice of Motion dated 10th January, 2003 and filed on 14th January 2003, applying for the Order of Certiorari. As shown in the enrolled Order granting leave, the Court fixed the 20th of January, 2003 as the return date for the Motion on Notice.
Upon service of the originating Notice of Motion on the Respondents, the Applicant on the 17th of January, 2003 personally deposed to an affidavit verifying due service of the originating Court processes on all the Respondents.
On the return date of 20th January, 2003, after confirmation of service of the Court processes on the Respondents, the Court fixed the application for hearing on the 24th of February, 2003 but due to the absence of the Respondents and Counsel the matter was adjourned to the 15th day of April, 2003 for hearing, on this date there was representation by Counsel from Federal Ministry of Justice on behalf of all the Respondents. The case was then adjourned to 2nd July, 2003 for hearing. The Respondents then filed their Counter-Affidavit in opposition to the suit on 28th of May, 2003. In response to the said affidavit the Appellant filed a Further and Better Affidavit to which documents were exhibited.
Thereafter, the Respondents’ Counsel filed and served a Notice of Preliminary Objection dated 26th June, 2003. The Appellant then filed a Notice of Objection dated 26th June, 2003, to the competence of the Notice of Preliminary Objection, in reaction to this, Respondents’ Counsel abandoned same and filed another Notice of Preliminary Objection dated 3rd July, 2003.
With the pendency of the Notices of Preliminary Objection, the main application could not be heard on the adjourned date of 2/7/03, on that day, the Court adjourned to 30th September, 2003 for hearing “the Multiple Preliminary Objection”.
On the 30th day of September, 2003 when the matter came up, arguments were taken from both sides on the competence or incompetence of the suit. Ruling was delivered on 14/11/03, the trial judge while dismissing, the main grounds of Objection raised by learned Counsel for the Respondents, raised suo motu, two issues, after resolving same struck out the substantive suit. The two issues are:
(a) issue of non-compliance by the Appellant with the requirements of Order 47 Rules 5(4) and (5).
(b) Order 47 Rule 5 (6) dealing with filing of the affidavit by the Appellant verifying service of the Origination Notice of Motion on the Respondents,
Dissatisfied with the Ruling of the trial Court, the Appellant filed an appeal against the ruling and filed a Notice of Appeal dated 17th November, 2003, in which three (3) grounds of appeal were set out. Subsequently, the Appellant filed a second Notice of Appeal.
On the 24th day of April 2007 when this appeal came up for argument, none of the Respondents was in Court nor represented by Counsel despite the fact that the Respondents were served with the hearing Notices on 18/1/07. Before this date there was an application by the Appellant to argue this appeal based on the Appellant’s brief alone, which was moved and granted on 3/5/05.
- The Appellant had filed his brief as far back as 21/4/04, and served on the Respondents Counsel on 26/5/04. Thereafter the Respondents’ learned Counsel filed an application to file their brief out of time dated and filed on 23/6/05 which was never moved. The application not having been moved as at 24/1/07 when this appeal was argued is deemed abandoned.
Following the grant of the application to argue the appeal based on the appellant’s brief granted on 3/5/05 in line with the provisions of S.16 of the Court of Appeal Acts, Cap. 75, LFN; 1990, Order 3 Rule 3 (1) and Order 6 Rule 4(1) of the Court of Appeal Rules, 2002 the learned appellant’s Counsel adopted fully his brief, this appeal was therefore decided based on the appellant’s brief alone.
In the Appellant’s brief he sought the leave of this Court to abandon the first Notice of Appeal and to rely solely on the second Notice of Appeal, in arguing his appeal. The appellant with the leave of this Court having abandoned the first Notice of Appeal dated 17/11/03 and filed on 18/11/03, same is hereby struck out.
There were seven (7) grounds of Appeal, the learned Senior Counsel Emmanuel J. J. Toro (SAN) formulated (5) issues for determination of this Appeal in the Appellant’s brief. The Issues are as follows:
“(i) 1ST ISSUE.
Whether in the circumstances of this case, it was right and proper for the learned trial Judge to have entertained the Respondents, preliminary Objection which was raised belatedly. And after the Respondents had taken fresh steps in the proceedings and had thereby waived any right to challenge the competence of the proceedings on the basis of any irregularity at that stage. (1st Ground of Appeal).
(ii) 2nd ISSUE.
Whether the learned trial Judge acted without jurisdiction and also denied the Appellant his constitutionally enshrined right to fair hearing under Section 36(1) of the Constitution of Nigeria, 1979and the rules of natural justice when, without any evidence establishing the actual date of service on the Respondents she nevertheless without affording the Appellant a hearing there on embarked, on her own, upon some arithmetical calculations on the basis of which she concluded that there was non-compliance with the provisions of Order 47 Rules S (4) & (5) of the Federal High Court (Civil Procedure) Rules 2000 relating to service of the Motion on Notice on the Respondents within 4 days of the grant of leave/ and struck out this suit on that basis. (3rd & 4th Grounds of Appeal).
(iii) 3rd ISSUE.
Whether in view of the presence in the Court’s Records in this case when the case was set down for hearing of an affidavit personally sworn to by the Appellant verifying service of the Originating Motion on Notice on the Respondents there was any valid or justifiable reason for the learned trial Judge to have ignored the said affidavit but only in the next breath, to raise suo motu, without hearing the parties thereon the issue of a failure to file the selfsame affidavit in alleged contravention of the provisions of Order 47 Rule 5 (6) of the Federal High Court (Civil Procedure) Rules, 2000 as construed in Onyemaizu vs. Ojiako (2000) 6 NWLR (Pt. 659) 25, on the basis of which the learned trial Judge struck out this suit. (5th & 6th Grounds of Appeal).
(iv) 4TH ISSUE.
Whether the learned trial Judge was right in holding that the service of the Originating Notice of Motion was not the duty of the Court Bailiffs but was squarely the personal obligation of the Appellant, as the Applicant, when the only obligation imposed on an Applicant by Order 47 Rule 5 (6) of the Federal High Court (Civil Procedure) Rules, 2000, is for him to personally depose to and file in Court an Affidavit verifying service of the Motion on Notice on the Respondents which said affidavit should be before the Court when the case is fixed for hearing. (7th Ground of Appeal).
(v) 5TH ISSUE.
Whether the learned trial Judge was not wrong in holding that the title or caption of “ORIGINATING NOTICEOF MOTION” was a wrong manner of captioning this suit and in consequence in ordering that the title of the Application in this suit should be amended to conform with Form 56 in Appendix 6of the Federal High Court (Civil Procedure) Rules, 2000. (2nd Ground of Appeal)”.
In resolving issue one, the learned appellant’s Counsel argued that having regard to the circumstances of this case, the Respondents could be said to have raised their objection timeously and whether before doing so, they had taken fresh steps in the proceedings amounting to a waiver of their right to challenge the competence of the proceedings on the basis of any alleged irregularity in the commencement of the proceedings and referred to Order 3 of the Federal High Court (Civil Procedure) Rules, 2000, in which learned Counsel submitted that the Court should rely on in doing substantial justice as opposed to technical justice and cited the case of Egolum vs.Obasanjo (1999) 7 NWLR (Pt.611) 355.
Further the learned Counsel in his brief argued that the Respondents’ Preliminary Objection was not only belated but was made after learned Counsel had appeared in same and proceeded to take substantial and far reaching fresh steps in the proceedings and emphasized the various dates (earlier reproduced) when different various steps were taken in the proceedings.
The learned Counsel in response to the Preliminary Objection in the trial Court had argued that the Preliminary Objection at that late stage to matters of alleged irregularities in the proceedings was not only belated but that the Respondents were doing so after having taken crucial and substantial fresh steps in the proceedings and that the lower Court should have disallowed the Objection raised in line with the clear provision of Order 3 Rule 2 (1) (Supra).
Learned Counsel argued that the objection should have been raised at the earliest opportunity, as failure to do so at the appropriate time may result into a waiver of the privilege, and relied on the case of Ross T. Smith & Co. Ltd VS. Bailey. Son & Co. (1940) 3 ALL E. R. 60 at 70, Also Kudu vs. Aliyu (1992) 3 NWLR (Pt 231) 615, Yalabi vs. Odu’a Investment Co. Ltd (1995) 10 NWLR (Pt 523) P. 1 and Saude vs. Abdullah; (1989) NWLR (Pt. 116) 387.
Learned Counsel urged us to allow the appeal on this issue first by holding that the lower Court was wrong in not prohibiting or disallowing the preliminary objection.
With a closer look at the sequence of events, the Originating Motion on Notice was served on the Respondents on the 17th January, 2003, the substantive application came up on the 20th January, 2003, on which day the suit was adjourned to 24th February, 2003, on which date the Respondents did not appear and the matter adjourned to 15th April, 2003. The Respondents through Counsel made their first appearances on 15th April, 2003, participated fully in the proceedings and agreed in fixing the substantive suit for hearing on 2nd July 2003.
Thereafter the Respondents proceeded to file their Counter affidavit on the 28th of May, 2003 in their defence of the substantive application, being proceedings for judicial review, their defence. Thereafter the Respondents filed their first Notice of Preliminary Objection dated 26/6/03, and later another Notice of Preliminary Objection dated 3/7/03.
From the above it is clear that the Respondents did not raise their objection timeously. On the 15th April, 2003 (after the previous adjournments) the Respondents participated fully in the proceedings in course of which the substantive suit was fixed for 2/7/03 and on 28/5/03 filed their counter affidavit in defence of the application. The Preliminary Objections were not filed till 26/6/03 and 3/7/2003 respectively.
Order 3 Rule 2 (1) reads:
“An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings with leave of Court by any interlocutory application, but the application may be raised in the defence.”
In line with the above provision of the rules a party raising such objection as in this ease, to get a stay, must not take any step(s) in the proceedings. Filing of a counter affidavit in the proceedings in defence of their substantive application amounts to taking a fresh step. See Obi Obembe vs. Wemabod Estates Ltd (1977) All NLR (Reprint) 130. The trial Court should not have allowed the Objection raised after the series of steps taken by the Respondents in the proceedings in line With the clear provision of Order 3 Rule 2 (1). The filing of the Counter Affidavit by the Respondents in defence of the substantive application on 28/5/2003, is a fresh step. The filing of the Notices of Preliminary objections on 26/6/03 and 3/7/03 respectively were done after the Respondents had reacted in defence of the same substantive application being objected to. See University of Ife vs. Fawehinmi Cars Co. Ltd (1991) 7 NWLR (Pt 201) 26.
The Originating Motion on Notice was served on the Respondents on 17/1/03 after which the applicant deposed to an affidavit verifying due service of the originating Court process on all the Respondents earlier referred to in this judgment. After the two adjournments in between, the Respondents appeared through their Counsel on 15/4/03, participated in the day’s proceedings and were part of the fixture of the matter for hearing of the substantive suit on 2/7/03, the Respondents filed their Counter affidavit thereafter before the Notice of Preliminary Objection. An application for a mere extension of time to file a statement of defence has been held to be a fresh step in the proceedings, See West London Dairy Society Ltd vs. Abbot (1881) 44 L.T. 376. A mere seeking for an order for pleadings through Counsel has been held to be taking fresh steps, See Obembe vs. Wemabod Estate (Supra).
The Respondents having taken steps in the proceedings before filing their Notice of Preliminary Objection relating to the failure of the Applicant to comply with same conditions precedent by non-compliance with conditions precedent i.e. the non deposition and filing of an affidavit verifying due service of the originating Court processes on all the Respondents before fixture for hearing, have waived their right, not having done so as at the earliest opportunity. See Ross T. Smith & Co. Ltd vs. Bailey. Son & Co. (1940) 3 All E. R. 60. The objection by the Respondents for the failure of the Applicant to comply with some condition precedent by not deposing to an affidavit verifying due service of the originating Court Processes on all the Respondents, was not raised at the earliest opportunity but was done after a few adjournments and the Respondents filing their Counter affidavit in defence of the substantive application, the Respondents therefore have waived their right to raise the objection belatedly and to complain about any irregularity in the proceedings, which was condoned by the Respondents when they took fresh steps in the proceedings on noticing (if at all) any irregularity.
In line with the Provisions of Rule 2(1) the trial Court should have disallowed the Preliminary Objection in the first place, having been raised late. See Kudu vs. Aliyu (1992) 3 NWLR (Pt.231) 615, Talabi vs. Odu’a Investment Co. Ltd (1995) 10 NWLR Pt. 523 1 and Saude vs. Abdullahi (supra).
It is noteworthy that the primary function of the Court is to do justice to the parties. Where any procedural rule will work contrary to this, the harsh rule has to be adjusted or to be made malleable, the harsh and strict rules to ensure that justice is done at all times. Failure to comply with the rules should not result in the action being adjudged incompetent where the Court had jurisdiction to entertain such action and where the non-compliance with the rules of Court does not affect the real root of the matter in contention. But where the non-compliance, as in the present case is a peripheral nature, which is not substantial, where the Respondents were served and the non filing of affidavit verifying due service of the originating Court processes on all the Respondents, by the appellant, which in any case is refuted by the appellant, and also raised suo motu by the Court, the non entry of the application for hearing within 14 days of granting leave and failure to effect service within four days.
The Court should not be too quick to bring to an end an otherwise competent action. Most especially where the non compliance is an irregularity, which is curable and not fatal to the case of the appellant.
See Otapo vs. Sunmonu (1987) 2 NWLR (Pt 58) P. 587, and Busari vs. Oseni (1992) 4 NWLR (Pt.237) 557 also cited by the learned appellant’s counsel.
It is settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. An irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity. Niger-Benue Transport Company Ltd vs. Nanumal & Sons Ltd (1986) 4 NWLR (pt 33) 117. Where an action has been commenced by a procedure which is irregular a defendant who took active part in the proceedings without complaining about the irregularity cannot be heard subsequently to seek to set aside the action on the grounds of the irregularity acquiesced. See Noibi vs. Fikolati (1987) 1 NWLR (Pt 52) 619. In the present case the matter before the trial Court had been fixed for hearing, adjourned twice and thereafter the Respondent made an appearance through their Counsel without raising an objection and thereafter filed their Counter Affidavit in defence of the substantive application. After all these steps had been taken the Respondents filed their Notice of Preliminary Objections.
In Sonuga & Ors vs. Anadein & Ors (1967) NMLR 77, a similar situation arose where a party to an action acquiesced in an irregularity; the Supreme Court had this to say at Page 79:
“In the appeal before us the question appears to be, is it right for the defendant to take advantage of an irregularity he had himself accepted or led the Plaintiff to believe he had accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection.”
The Courts have consistently held that an objection to a procedural irregularity should be taken at the commencement of the proceedings or at the time when the irregularity arises. After the party raising and relying on the irregularity to set aside or do away with the action for being incompetent had taken steps in the proceedings aware of the irregularity, it is too late and against the interest of justice to raise and rely on the objection. C.F.A.O. vs. The Onitsha Industries Ltd 11 NWLR 102; Johnson vs. Aderemi & Ors 13 WACA 297; Adebayo & Ors Chief Shonowo & Ors (1969) All NWLR 176; Noibi vs. Fikolati & Anor (1987) 1 NWLR (Pt 52) 619; Ezomo vs. Oyakhire (1985) 1 NWLR (Pt 2) 195. But, where the person complaining of the irregularity is able to show that a miscarriage of justice had occurred by reason of the irregularity, he would be allowed to rely on the alleged irregularity to set aside the proceedings. Adebayo & Ors vs. Chief Shonowo Ors (supra).
From the foregoing the Respondents have not made out a case within any of the consideration that will entitle them to have the proceedings brought to an abrupt end on the alleged irregularity.
The Respondents did not complain about the irregularity until the matter had been fixed for hearing, made appearance and filed their Counter Affidavit in defence of the substantive suit. The Respondents did not make out that by the irregularity they suffered a miscarriage of justice. Also the non-compliance does not touch on the root of the matter, therefore it is insufficient to vitiate the action, it is an irregularity that is curable and has been cured by the acquiescence of the Respondents in the proceedings. The Respondents were not misled.
On the second issue, the learned appellant’s Counsel in his brief submitted that in the Respondents’ 2nd Notice of Preliminary Objection which was moved, the objection was on three grounds as follows:
”AND TAKE NOTICE that the grounds upon which this application is brought are:-
(i) The Originating Motion was brought in an improper manner.
(ii) The service of the Notice of Motion on the Respondents was late.
(iii) The application for leave to apply for judicial review was filed out of time”
The learned appellants Counsel argued that having raised their objection by Notice of Objection the Respondents should have restricted themselves and relied on pure issues of law and not facts, otherwise that it should have been by a Motion on Notice with affidavit evidence to support the facts.
The learned Appellant’s Counsel submitted that the Respondents were served with the processes on dates between 10th – 15th January 2003 before deposing to the affidavit verifying service on 17/1/03, and not on 11/9/03.
From the printed records learned Counsel for the Respondents appeared for the Respondents on 15/4/03, when the matter was adjourned to 2/7/03. On 28/5/03 same Counsel filed a Counter Affidavit opposing the substantive action, on 26/6/03 and 3/7/03 Notices of Preliminary Objection were filed, and on 2/7/03 learned Respondents’ Counsel was in Court when the Objection to the substantive suit was adjourned for argument on 30/9/03. The learned Appellant’s Counsel argued that the Respondents should have proved that the service was on 11/9/03 and explained steps they took before this date, including appearances and processes filed. Further that the learned trial judge did not utilize the Courts records to ascertain the crucial issue of when the processes were served on the Respondents, See Olokun vs. Aiyelabegan (2004) 2 NWLR (Pt 858) 504 also cited by the appellant’s Counsel.
I am of the opinion that the crucial fact of the date processes were served on the Respondents (based on which the trial Court struck out the matter) would have been challenged by the filing of a Counter Affidavit, this would have afforded both parties equal opportunities to be heard.
The question that arises is, could failure (if at all) to serve the Originating Motion on Notice within 4 days of the grant of leave to file same constitute a fundamental and incurable vice, capable of vitiating the entire proceedings, I would answer in the negative. The learned trial judge relied on the case of Emmanuel Ogwuche & ors vs. Mathew Mba & Ors (1994) 4 NWLR (pt 336) 75 which was also followed in Ezeadiukwa vs. Maduka (1997) 8 NWLR and Umoh vs. Nkan (2001) 3 NWLR (Pt.701) 512, cases dealing with Fundamental Human Rights [Enforcement Procedure] Rules, 1979 which has similar provisions as Order 47 Rules 5(4) and (5) of the Federal High Court Rules 2000. Where the Court of Appeal held that the issue of such service was mandatory and not directory, non-compliance had the effect of vitiating the proceedings. This was considered rather harsh and too stringent and was not followed in the recent cases of this Court in which the requirements by the rules were held to be directory and not mandatory, therefore the liberal and preferred view that a non-compliance with the rules has no vitiating effect on the proceedings, Ogwuche vs. Mba (supra) was not followed, in the cases of A.G. Fed. vs. Ajayi (2000) 12 NWLR (Pt.682) 509. Monye vs. P.T.F.T.M.(2002) 15 NWLR (Pt 789) 209, and C.C.B. (Nig.) Plc vs. A.G. Anambra State & Anor (1992) 8 NWLR (Pt.261) 528, where it was held that litigants should not suffer for the mistake of the Court Registry and that parties are duty bound to observe the rules of Court, that it is the registry that gives dates after litigants or Counsel on their behalf have filed their applications. See UTC Nigeria Ltd vs. Pamotei (1989) 2 NWLR (Pt 103) 244. It is the Court’s duty to fix hearing date of the Motion on Notice after granting leave. An applicant has no role to play in the fixture of such hearing dates. In the present case the error if at all is attributable to the Court, the Appellant (applicant) could not have done anything, therefore it is wrong to punish the appellant for fixture outside the required date. It would be injustice and absurd for appellant to abandon the suit and start afresh.
At Page 296 Belgore JSC (as he then was) made this observation:
“Rules of Procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. for Courts to read rules in the absolute without recourse to the justice of the cause, to any mind will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of Rules of Court. ”
Therefore over adherence to a technical rule may pose serious danger to the delivery of justice and strict interpretation will lead to great injustice.
I would prefer the liberal interpretation of the provisions above in the latter decisions to the effect that the relevant Rules of Court are directory and not mandatory in line with doing substantial justice rather than technical justice in line with Order 3 Rules 1 and 2 (1) of the federal High Court Rules.
With respect to the trial judge I feel that the interpretation and application of the provisions of Order 47 Rules 5 (4) & (5) of the Federal High Court (Civil procedure) Rules, 2000 relating to Service of the Motion on Notice on the Respondents within 14 days of the grant of leave was rather strict thus prematurely ending the applicant’s case by striking same out while resolving a preliminary issue, which even if defective is curable. This I consider to be technical justice which has long become unpopular with the Courts.
The third issue is based on an alleged non-compliance by the Appellant (then Applicant) with the provisions of Order 47 Rule 5 (6) of the Federal High Court (Civil Procedure) Rules, 2000.
The learned Appellant’s Counsel in his brief argued that the issue of non-compliance with the above mandatory provisions was raised suo motu by the learned trial Court who struck out the appellant’s case and relied on the case of Onyemaizu vs. Ojiako (2000) 6 NWLR (Pt.659) 25.
Order 47 Rule 5 (6) of the Federal High Court (Civil Procedure) Rules reads:
“(6) 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 that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Motion or summons.”
A failure to comply with the above Provision deprives the Court of jurisdiction over the matter; it places the duty on the Applicant to personally depose to the affidavit verifying service on the Respondents, not the bailiffs. See the cases of the State vs. The Commissioner of Police and Anor: In RE: APPOLOS UDO (1987) 4 NWLR (Pt 63) 120, which was followed in Onyemaizu vs. Ojiako (Supra), also cited by the learned Appellant’s Counsel who argued in his brief that he being aware of the duty imposed on him under the above rules personally deposed to the relevant affidavit of compliance, verifying Service of the Originating Motion on Notice on Respondents. The said affidavit is reproduced on Pages 559-561 Volume II of the printed records, and was deposed on the 17/1/2003 and showed the names, addresses of the places and dates of service on, all the persons who had been served. This means that as at 20/1/03 when the substantive application came up for hearing the Appellant had complied with Order 47 Rule 5(6) as reflected in the records. The learned judge may have overlooked the affidavit without meaning any harm rather than the harsh and contrary view of the learned Counsel who thought the trial judge not making use of the said affidavit was “arbitrarily injudicious and lacked any rational basis, both in law and fact”, and “lack of vigilance” on the part of the trial Court. The manner in which such view was expressed by Counsel was unnecessary; I find such language rather insulting and uncalled for, far from gentlemanly.
Even though the issue of failure to comply with Order 47 Rule 5 (6) was not raised as one of the grounds of objection by the Respondents, the Court was in order to have raised the issue suo motu, but having done so it should have called for addresses of Counsel on both sides being a fundamental issue, this would have helped to determine whether the applicant (now Appellant) came by due process of law or not. The Court’s attention would have been drawn to the existence of the affidavit of compliance. Having not done so, with respect, the trial judge has interfered with the Appellant’s fundamental right to a fair hearing under S.36(1) of the 1999 Constitution of Nigeria and rules of natural justice.
The Court’s have in a number of cases frowned at the practice of a Court taking up a point suo motu and making it the basis of its decision without hearing the parties on it. In Adeosun vs. Babalola (1972) 5 SC 292 the Supreme Court held that it is improper for a Court to give a decision on a point not argued before it. Sir Udoma JSC, P. 303: held “As a general rule this Court has always regarded with disfavour the practice of a Court giving a decision on a point not argued before it.”See University of Calabar vs. Essien (1996) 10 NWLR (Pt 477) 225. ACB vs. Nbisike (1995) 8 NWLR (Pt 416) 725 and Finnih vs. Imade (1992) 1 NWLR (Pt 219) 511, also cited by the learned Appellant’s Counsel, also Obazke Ogiamien & Anor. vs. Obahon Ogiamien (1967) NWLR, 245, The Registered Trustees of Apostolic Church Lagos Area vs. Rahman Akindele (1967) NWLR 263. in the above case the Supreme Court pointed out that it is wrong for a judge to give a decision on a point which opportunity was not afforded Counsel to argue at the hearing and particularly a point not raised throughout the hearing, in this case in course of arguing the preliminary objection. The Courts have constantly held as inappropriate a procedure whereby a Court takes up a point without hearing the parties or their Counsel decides the issue i.e. where the point was not raised by the parties. But when a Court feels inclined to raise a point suo motu, the parties must be given an opportunity to address the Court before the Court takes its decision on that point. See Kuti & Anor vs. Jibowu & Anor (1972) 1 All NLR (Pt 11). P. 180, Salawu Ajao vs. Karimu Ashiru & Ors (1973) All NLR (Pt 11) P. 51 Atanda & Anor vs. LaKANMI (1974) 1 All NlR (Pt 1) P. 168, Kuti vs. Balogun (1978) 1 LRN 353.
In the present case it was never the case of the Respondent that (a) there was non-compliance by the Appellant with the requirements of Order 47 Rules 5 (4) and (5), non entry of the application for hearing within 14 days of granting leave and the failure to effect service within 4 days (b) non compliance with Order 47 rule 5 (6) i.e. filing of affidavit by the Appellant verifying service of the Originating Notice of Motion on the Respondents.
The above issues were raised suo motu by the Court, without hearing from Counsel for both parties, took a decision on these issues by which the learned trail judge struck out the substantive suit while dismissing the main grounds of objection raised by the learned Counsel for the Respondents, argued by both parties. By the above ruling, the objection was dismissed, and the Court who raised suo motu the issues not argued by the parties made out a case for the Respondents and took the decision thereafter striking out the substantive suit. With respect to the trial Court, this is not only inappropriate but a denial of fair hearing on the side of the Appellant, the Court has in effect granted a substantive relief not claimed at that stage of the objection, and I so hold. See Ochonma vs. Unosi (1965) NMLR 321, Adeleke vs. Iyande (1994) 9 NWLR (Pt 366) 133. Rasag A. Balogun vs. ACB Ltd (1992) 1 S.C. 77. Ogiemen vs. Ogiemen (1967) 1 All NLR 191.
Where a Court decides, to raise an issue as in this case, not raised by any of the parties before it, it is mandatory for the Court before deciding the issue to give the parties the opportunity to address it on the issue. This ensures fairness to both parties as well as to avoid an element of surprise. See: Road Transport Employer’s Association of Nigeria vs. The National Union of Road Transport Workers [1992) 2 NWLR (pt 224) 381. Katto vs. CBN (1991) 9 NWLR (pt 214) 126 and Ezeanya vs. Okeke (1995) 4 NWLR (Pt 388) 142. In Ezeanya’s case (Supra) Iguh JSC (as he then was) had this to say: ” …. It cannot be over emphasized and this Court has repeatedly warned against decisions of Court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before it, nor even raised by or for the parties or either of them.”
See also Shitta Bey vs. Federal Republic Service Commission (1981) 1 S.C. 40 and Sauda vs. Abdullahi (supra).
The Court should therefore limit itself to the issues raised by the parties, as to do otherwise might result in the denial to one or the other of the parties’ right to fair hearing. Metalimpex vs. A.G. Leventis & Co. (Nig) Ltd (1976) 2 S.C. 91, George vs. Dominion Flour Mills Ltd (1963) 1 SCNLR 117; Kalio vs. Kalio (1975) 2 S.C. 15, Shell B.P. Ltd vs. Abedi (1974) 1 All NLR (Pt 1) 1. Alhaji Ogunlowo vs. Prince Ogundare (1993) 7 NWLR (Pt 307) 610.
It has been severally held that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without giving the parties an opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See Ugo vs. Obiekwe (1989) 1 NWLR (Pt 99) 566. Okafor vs. Felix Nnaife (1973) 3 ECSLR (Pt 1) 216; (1973) 3 S.C. 85; Ejowhomu vs. Edok-Eter Mandilas Ltd (1986) 5 NWLR (pt 39) 1, Adegoke vs. Adibi (1992) 5 NWLR (Pt. 242) 410. Atanda vs. Lakanmi (supra). Ajao vs. Ashiru (1973) 11 S.C. 23. In doing so, the Court has breached the parties’ right to fair hearing. Sheldan vs. Brownfield Justices (1964) 2 QB 573, Regina vs. Hendan Justices ex parte Govchein (1973) 1 WLR 1502.
In the preliminary objection raised by the Respondents as to the competence of the suit, did not raise the issues of non compliance by the Appellant with the requirements of Order 47 Rules 5 (4) and (5) and Order 47 Rules5 (6).
The learned trial judge was, with due respect, in great error when he raised these issues suo motu and proceeded to rely on them in striking out the substantive suit, strangely, after dismissing the preliminary objection argued by both parties.
With the 4th issue the learned Appellant’s Counsel in his brief argued that the learned trial judge confused the provisions of Order 47 Rule 5 (3) of the Federal High Court (Civil Procedure) Rules, 2000 with those of Order 47 Rule 5 (6) of the same Rules. Learned Counsel adopted his argument under the third issue above where sub rule (6) of the said Order 47 was discussed at length Le. to the effect that the sub rule requires an applicant to personally file affidavits verifying service on the Respondents.
Further that in the trial judge holding that the duty of ensuring due service of the Originating Notice of Motion on the Respondents was that of the Appellant and not that of the Court Bailiffs was mixing up the provisions of sub rule (3) of the same Order 47 with sub rule (6).
Order 47 Rule 5 (6) was earlier reproduced in this judgment.
Order 47 Rule 5 (3) reads:
“(3) The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings in or before a Court and the object of the application is either to compel the Court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons shall also be served on the clerk or registrar of the Court and, where any objection to the conduct of the judge is to be made, on the judge.”
From the above provisions of sub rule (3) and the cases of The State vs. The Commissioner of Police & Anor in Re: Appolos Udo (supra) and Onyemaizu vs. Ojiako (supra). It is clear that the service of the Originating Notice of Motion is the statutory duty of the Court bailiffs and not that of the litigants. All that is required of the litigant is to have his processes assessed and the appropriate fees paid and receipted for, thereafter his responsibility ceases, what is left to be done is the domestic affair of the Court and its staff. Whatever delay that occurs thereafter is not within the power of the Plaintiff to control but a domestic affair of the Court which the plaintiff cannot be penalized. It would be great in justice if an applicant after doing all that he is required to do and for some reason the Court bailiff fails to serve the process on the Respondents it would be wrong to strike out the suit for non compliance when in actual fact it is the Court and its officials in whose power it lies to serve the originating Notice of Motion on the Respondents. See Alawode vs. Semoh (1959) SCNLR 91, Sauda vs. Abdullahi (supra).
I am of the humble opinion that Order 47 Rule (6) is to be effected by the Appellant while sub rule (3) of the same Order is to be effected by the Court bailiff and I so hold. Therefore It is not the duty of the Appellant to ensure service of the Originating Notice of Motion on the Respondents.
The fifth and last issue deals with the caption or title of the suit which was titled “ORIGINATING NOTICE OF MOTION” instead of “ORIGINATING MOTION”, the learned Counsel argued that the learned trial Court’s order that the title be amended to read ‘ORIGINATING MOTION’ did not concern an issue of substance but of mere form which does not make a difference to the substance of the suit. The learned Counsel argued that the trial Court’s reliance on form 56 in Appendix 6 of the Federal High Court (Civil Procedure) Rules, 2000, which has its roots in Order 7 Rule 2 of the said Court Rules is erroneous as it is headed: ORIGINATING SUMMONS, which is a distinct method of commencing actions, similarly, Order 47 is also a distinct procedure for seeking for the Prerogative Orders of Judicial Review i.e. Prohibition, Certiorari and Mandamus.
The Courts have in the past where a suit is brought by the wrong procedure instead of a more acceptable one, ordered that such procedure be converted to the appropriate one. The important thing is to let the other party know of the other’s grievances.
In the present case, the respondents did not complain of the title and were not misled or in any way prejudiced by such title which touches on the form the procedure is brought and not the substance of the suit, and should not have brought the entire suit to a sudden end without the real issues being looked into. Any mistake as to form is an irregularity curable by an amendment, in line with Order 3 Rules 1(1) and (2) of the Federal High Court Rules.
I have earlier held in this judgment that as much as rules of Court are to guide the Courts to do justice, we must not slavishly and blindly apply them but once there is substantial compliance rather than strict use of prescribed forms, It is in order, holding otherwise would be denying a party prematurely the justice we are trying to do, without looking into the substantive issues before the Court. Over adherence to form and procedure by the Courts is no longer popular, but rather there is stress on doing substantial justice. See F.G.N. vs. Zebra Energy Ltd {2002} 18 NWLR (Pt 798) 162, Monye vs. P.T.F.T.M. (Supra) Rules of Court (which includes form, in this case heading) are made to aid dispensation of justice, the Court should not adhere to strict application or interpretation of rules which has the effect of defeating the delivery of justice, striking out the substantive suit defeats the purpose for which the Appellant came to Court. See also Ifezue vs. Mbadugha {1984) 1 SCNLR 427 Ogwuche vs. Mba (supra) U.T.C. Nig. Ltd vs. Pamotei (supra) and the fuller reasons given in resolving issue two earlier in this judgment.
Accordingly, having resolved all the issues in favour of the Appellant, I allow the appeal. It is directed that the substantive application on Notice by the appellant be heard de novo before another judge of the Federal High Court other than B.F.M. Nyako, J.
The appellant is entitled to costs fixed at N10,000.00.
Other Citations: (2007)LCN/2323(CA)
