Williams & Anor V. Adold/stamm Intl (Nig) Ltd & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C. 

The Lagos State Development and Property Corporation (LSDPC) owed the 1st respondent a debt arising out of a building contract. The 1st respondent engaged the 2nd respondent as its legal practitioners to recover the said debt. The 2nd respondent as the 1st respondents’ legal practitioners commenced and prosecuted Suit No. 10/2M/82 to recover the said debt. Upon recovery of the judgment debt after a protracted legal process, the judgment debt with interest was at the request of the 2nd respondent herein on 17-7-2010 paid into its account at United Bank for Africa Plc (UBA) on a fixed deposit at the interest rate of 11% per annum with a standing request to roll it over periodically. After the death of Chief F.R.A Williams SAN, the then Head of the 2nd respondent herein, the appellants herein assumed full control and management of the 2nd respondent and its said UBA account as the signatories to the account. On 3-2-2005, the appellants and the 2nd respondent paid the sum of N15,534,801.74 to the 1st respondent.

In their pleadings, both sides joined issue on whether any part of the said judgment sum remained unpaid after the said payment of 3-2-2005. The 1st respondent herein as plaintiff contends that the balance of N21,534,801.75 was remaining unpaid and that the appellants herein and 2nd respondent herein as defendants converted the said unpaid balance to their personal use without the authority of the 1st respondent and have refused to pay same even after several demands and reminders. The appellants and 2nd respondent herein as defendants contend that the 1st respondent was paid its complete entitlements in the suit as agreed during the life time of Chief F.R.A Williams SAN, that they are not owing the 1st respondent any money as it claimed, that Chief Ladi Williams SAN, the first son of Chief F.R.A Williams SAN is the alter ego and the directing mind of the 1st respondent, that at the time the 2nd respondent herein prosecuted the suit and appeals for the recovery of the debt due to the 1st respondent from LSDPC, Chief Ladi Williams was working in the 2nd respondent herein as legal practitioner, that Chief Ladi Williams SAN had on 23-11-2005 entered into an agreement with the appellants and 2nd respondent herein wherein he acknowledged and accepted that he had no claims whatsoever against the 2nd respondent and appellants herein in respect of his severance and voluntary disengagement from the 2nd respondent in respect of any matter, suit or case handled by the firm, that this agreement was comprehensive in respect of all the claims of Chief Ladi Williams SAN, including the claims made in the name of the 1st respondent, that Chief Ladi Williams is actually one and the same with the claimant and that the 2nd respondent had no fiduciary duty or any duty to the 1st respondent.

The appellants and 2nd respondent as defendants on 16-4- 2007 applied to the trial Court for an order staying the proceedings in suit no. ID/86/2007 filed by the 1st respondent against them and referring the above mentioned dispute to arbitration on the ground that the agreement above mentioned (attached to their affidavit in support of their application as exhibit TEW – (1)) has an arbitration clause that requires such claim as that of the 1st respondent to be referred to arbitration. After hearing both sides on this application the trial Court on 26-7-2007 decided thusly –

“Suffice it to say that, from a distillation of the affidavit evidence before me in this application, the contention of the Defendants/Applicants is that Chief Ladi Williams SAN being the alter-ego of the claimant, the claimant was bound by the agreement exhibit – TEW 1 and accordingly the claimant and or Chief Ladi Williams SAN could no longer sue to Court in respect of the claimant’s judgment funds in the hands of the 3rd defendant’s chamber the same having been compromised or settled as in the provisions of clause 1.2 of exhibit – TEW – 1, which dictated per clause 19: thereof, that any dispute arising from the execution of that agreement be first referred to arbitration. The claimant has however contended that not only is Chief Ladi Williams SAN, not the alter-ego of the claimant company, he has not authorized by the claimant’s Board of Directors to compromise its claim on the judgment sum in issue and that in any case, the claimant company was not a party to and nowhere mentioned in exhibit – TEW -1- which contained the Arbitration Clause, the basis of this present application by the Defendant’s/objections. The first issue and the one upon which every other issue will turn upon in this matter is therefore who are the parties to exhibit – TEW – (1) and the nature or tenor of that agreement itself.

The PREAMBLE Clause of Exhibit TEW – (1) is very instructive in this regard. It states all the parties to the agreement. Because of its importance, I shall reproduce it hereunder as follows: –

“This agreement is made this 23rd day of November, 2005 between Oladipupo Akanni Olumuiwa Williams … (which expression shall include his heirs and successors in title of the first part, and Kayode Adekunle Olusegun Williams … (which expression shall include his heirs and successors in title of the second part and Folarin Rotimi Abiola Williams which expression shall include his heirs and successors in title of the third part and Tokunbo Eniola Williams … (which expression shall include his heirs and successors in title of the fourth part”

The RECITALS Clause of Exhibit TEW – (1) is also very instructive on what the subject matter of the agreement is and it reads: –

WHEREAS

1. Ladi, Kayode, Folarin and Tokunbo are children and sons of the Late Chief Fredrick Rotimi Alade, Williams and the Late Chief (Mrs.) Beatrice Oladunni Williams hereinafter referred to as Papa and mama respectively.
2. Papa had interest in real and personal property and during his lifetime made various trust instruments in respect of these properties.
3. Some properties continue to be held in the name of papa.
4. All the personal property of mama passed to papa by operation of law and a third of the real property of Mama now forms part of Papa’s Estate
5. Ladi, Kayode, Folarin and Tokunbo are full brothers who out of brotherly love have elected to enter into this agreement in respect of their interest in the subject matter hereof”

The agreement proceeded to define parties/persons/properties mentioned therein.

The Habendum Clause then proceeded to state the respective shares of the parties the various real and personal properties involved.

Having described Chief F.R.A. Williams Chambers in the definition Clause foresaid, Clause 1:2 of the Habendum clause goes on and provides: –

“Ladi has decided to disengage from his position at Chief Rotimi Williams Chambers by the 31st March, 2006 and set up his own practice in Victoria-Island and he acknowledges and accepts that he has no interest in the firm known as Chief Rotimi Williams Chambers and has no claim whatsoever against that firm or Folarin or Tokunbo in respect of his severance and voluntary disengagement from the firms or in respect of any matter, suit or case handled at any time by the firm”

Now all the provisions in Exhibit – TEW – (1) above quoted, none has in any way or manner mentioned or referred to Adeld Stamm – the Claimant herein.

I have deliberately set out the preamble or parties clause of Exhibit – TEW (1) wherein the parties to that agreement are stated and described.

I have also set out the Definition Clause where all relevant persons/properties or terminologies are clearly explained. I have also deliberately set out the Recital Clause where the entire Chief F.R.A Williams SAN of blessed memory’s nuclear family was defined, and what probably and logically appears to be the subject matter of that agreement i.e. the state of Chief F.R.A Williams and Chief Mrs. Beatrice Olubunmi Williams; the properties – (real and personal) constituting same and those beneficially entitled thereto – are defined.

In short, from all of the above clauses, it is transparently clear that this agreement Exhibit – TEW – (1) is an agreement between the children of Chief F.R.A Williams on the division of the properties of their father and their mother Beatrice Olubunmi Williams, simpliciter.

In no part or clause of the entirety of Exhibit – TEW – (1) is Adold Stamm – the claimant herein mentioned as for the Court to even come to the conclusion that even it was not stated to be a party, it was referred to as one of the subject matter of the agreement. Clause 1:2 of Exhibit – TEW -1 which I have reproduced above would therefore be read only in the context of the subject matter of the entire agreement itself, which I had concluded is the Estate – (real and personal properties) of the parents of the parties – Ladi, Kayode, Folarin and Tokunbo Williams alone.

In further support for this conclusion, I emphasize the phrase has no claim whatsoever against that firm or Folarin and Tokunbo in respect of his severance and voluntary disengagement from the firm or in respect of any matter, suit or case handled at any time by the firm”

This clause itself has manifested its purpose i.e. the disengagement of Ladi from the firm.

Yes…. The matter of Adold Stamm – the present claimant – comes within “any case handled at any time by the firm, however that can only be interpreted to cover a situation where Chief Ladi Williams makes any personal claim on any fee or other entitlement of the firm in respect of any matter handled by the firm for that company. It cannot be otherwise, for that would amount to foreclosing the company – (a client of the firm) from claiming its monies or any other dues from the firm by an agreement to which it was not a party.

That will be quite contrary to the very basic and elementary principles of the Law of Contract to wit that only persons who are parties to contrary are bound by the terms thereof.

See S.71 (1) Companies and Allied Matters Act LFN 1990. Logically loc, such an interpretation would also make nonsense of the principle of corporate personality enshrined in S. 37 of the Companies Allied Matters Act 1990 LFN and the age long locus classicus SALOMON V SALOMON & CO. LTD 1897 AC 22. And LEE V LEE’s AIR FARMING LTD. 1961 A-c 12.

It has been very vigorously canvassed in this application by the objectors that Chief Ladi Williams was the alter-ego of the Claimant company and therefore that the company must be bound by all the steps he took.

I agree entirely with the position in law that in deserving circumstances, the veil of incorporation would be lifted. However, with due respect, this is not one of such occasion. In this matter, no issue of deception or any illegal act or breach of statutory provisions is involved.

The company as a legal facade has not been used to perpetrate any illegality or deceive any third-party to obtain any benefit. Rather it is the company’s own monies that is being asked for through the instrumentality of the said Chief Ladi Williams. I have also seen the affidavit of Tanga a Director of the company denying that the company authorize Chief Ladi Williams to compromise the payment to it of its judgment sum in the hands of the 3rd defendant chambers.

I therefore come to the conclusion that nothing in this case calls for lifting of any veil of incorporation of the claimant company in the circumstances or at all.

For the avoidance of any doubt my humble conclusion is that the claimant company was not party to Exhibit – TEW – (1), nor that it was subject matter of that agreement.

I also come to the conclusion that Chief Ladi Williams did not contract for that company in Exhibit – TEW – (1) – as to make it a beneficiary thereof and one which would then be bound by its terms if its board ratified same. The company has come out itself to claim its money – Exhibit – (ASI) is its Board Resolution to that effect.

I, having come to the above conclusions and since clause (19) which provides that disputes arising out of that agreement Exhibit – TEW – (1) be first referred to arbitration, is contained in the same agreement to which the claimant company is not a party, this objection and prayer for stay of proceedings pending reference to arbitration in this case crumbles.

The application fails and is hereby dismissed.”

The appellants herein appealed to the Court of Appeal against the above ruling of the trial Court contending inter alia that the learned trial Judge lacked the jurisdiction to deliver the ruling during the Court’s annual vacation without complying with the conditions precedent to sitting during the Court’s annual vacation.

On 1-3-2013, the Court of Appeal after extensively considering the above issue and three others raised for determination, dismissed the appeal for being devoid of merit.

On 14-3-2013, the appellants herein commenced this appeal in this Court by filing a notice of appeal containing six grounds for the appeal. The 1st respondent filed a respondent’s notice to confirm the judgment of the Court of Appeal on the additional ground that this Court would not disturb or interfere with the concurrent judgment or findings of the trial Court and the Court of Appeal, unless there are cogent and compelling reasons that justify such interference.

The appellants and 1st respondent filed, exchanged and adopted the following briefs- Appellants’ brief, 1st respondents brief and appellants’ reply brief. The 2nd respondent did not file any brief.

​

The 1st respondent’s brief raised and argued a preliminary objection to the appeal on the ground that the grounds of this appeal are of mixed law and facts and no leave of Court to appeal on those grounds was first obtained before the appeal was filed. The appellants argued in response to the preliminary objection in their reply brief.

I have carefully read and considered the arguments of all sides concerning this objection.

I will start the determination of the objection by reproducing the grounds for this appeal here for ease of reference.

The grounds of appeal are as follows: –

GROUND 1

“The learned Justices of the Court of the Appeal erred in law, when having found that the ruling of the lower Court was delivered I breach of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 failed to set aside the ruling as not having competently delivered and therefore invalid.

PARTICULARS

1. The learned Judge had found that the ruling was delivered in breach of the provisions of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure Rule) Rules 2004.
2. Having so found the Court of Appeal was obliged to hold that a fundamental condition precedent to the competence of the trial Court to sit and deliver the said ruling during the High Court’s long vacation under Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 was not fulfilled or complied with.
3. The delivery of the Court constituted a proceeding of Court.
4. The proceeding of the day including the ruling delivered was a nullity and ought to have been set aside.
5. The ruling was not valid and ought to have been set aside.

GROUND 2

The learned Justices of the Court of Appeal erred in law when they held as follows:

…I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, its rather obvious that on the 26/07/07 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo moto that would have entitled the parties to the ruling. Secondly, it was not the case of the Appellant that the delivery of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See Obodo V Olomu (1987) 3. NWLR (Pt. 59) 111, Eseigbe v Agholor (1990) 7 NWLR (Pt. 161) 234, Veritas Ins. Co. Ltd v. Citi Trust Inv. Ltd (1993) 3 NWLR (Pt. 281) 249.

PARTICULARS

1. In so holding the Court failed to appreciate the Appellant’s point that the Court lacked jurisdiction to hold any proceedings on the date it delivered the ruling.
2. The consequence of a lack of jurisdiction is that the proceedings are a nullity no matter what.
3. The Court of Appeal failed to apply and be bound by the authoritative decision of the Supreme Court in Itaye & 7 Ors v Ekaidere (1978) 11 NSCC 485 that any such proceeding amounted to nullity.
4. The reliance by the Court of Appeal on the Court of Appeal case of Veritas Ins. Co. Ltd v. Citi Trust Inv. Ltd (1993) 3 NWLR (Pt. 281) 249 is unsupportable in the face of the aforesaid superior decision of the Supreme Court.

GROUND 3

The learned Justices of the Court of Appeal erred in law in affirming the decision of the trial Judge that Chief Ladi Williams SAN was not the alter ego and directing mind of the 1st Respondent and was therefore the actual Claimant/1st respondent.

PARTICULARS

1. By so holding, the learned Justices failed to appreciate the settled legal principle that an alter ego is the directing mind and will of a corporation, the very ego and centre of the personality of the corporation whose acts binds the company.
2. Admittedly Chief Ladi Williams SAN in Exhibit TEW2 consistently referred to the 1st Respondent as “my company” and “my balance” and thus held himself out as the company’s alter ego.
3. The Court had found that the 1st respondent was Chief Lady Williams’ company.
4. Having so found, it was obliged to lift the veil of incorporation and regard the 1st Respondent as Chief Ladi Williams.
5. The learned Justices ought to have held that 1st Respondent is actually Chief Ladi Williams using an artificial veil of incorporation.

GROUND 4

The learned Justices of the Court of Appeal erred in law when they upheld the finding of the trial Court to the effect that “the 1st Respondent was not mentioned in the exhibit and could not be liable for the terms and the conditions inherent in Exhibit TEW1.

PARTICULAR

1. In so holding, the Court showed a misapprehension of the whole tenor and substance of the Appellant’s argument.
2. The gravamen of the Appellant’s submission is that the 1st Respondent is actually Chief Ladi Williams and this makes the actual naming of the 1st Respondent unnecessary and irrelevant.
3. That being so, the 1st Respondent was thus liable for the terms and conditions inherent in Exhibit TEW1.

GROUND 5

The learned Justices of the Court of Appeal erred in law when they held that:

“…the said Exhibits TEW2, TEW4, 7 TEW5, owing to the obvious fact that they were written during the course of the bona fide attempt to settle the matter between Chief Ladi Williams, SAN and the Appellants, they are inadmissible.

PARTICULARS

1. There was no appeal by the 1st Respondent against the learned trial Judge’s decision sub silentio that the said documents were not inadmissible.
2. The Court of Appeal had no jurisdiction to entertain the point about the admissibility of the documents let alone determine that they were so inadmissible.
3. Also, by so doing the Justices of the Court of Appeal misconstrued and misapplied the provisions of Section 25 of the Evidence Act which is clearly not application to this case.

The Justices of the Court of Appeal wholly misapplied the decision of this Court in the case of Fawehinmi v. NBA (No. 2) (1989) 2NWLR (Pt. 105) at 558 whose facts are clearly distinguishable from the case.

GROUND 6

The learned Justices of the Court of Appeal erred in law in refusing to stay proceedings in matter and refer parties to arbitration as they have contracted in Exhibit TEW1.

PARTICULARS

1. By so doing, the learned Justices of the Court of Appeal erred in law when in the case of MV Lupex v. N.O.C & S Ltd. (2003) 15 NWLR (Pt. 844) 469 at 488 which is to the effect that “where parties have chosen to determine for themselves that they would refer their dispute to arbitration instead of resorting to regular Courts, a prima facie duty is cast upon the Courts to act upon their agreement.
2. It was an admitted fact that there is an arbitration clause in the agreement entered into by the parties, contained in Exhibit TEW1.
3. The 1st Respondent was clearly Chief Ladi Williams and was bound by the terms of Exhibit TEW1.
4. It was an admitted fact that upon service of the originating processes on the Appellants, the Appellants without taking any steps brought an application praying the lower Court to stay proceedings pending arbitration.
5. The learned justices of the Court of Appeal ought to have stayed proceedings and referred the matter to arbitration.”

It is glaring that grounds 1 and 2 of this appeal raise questions only of law. The complain in the two grounds is that the Court of Appeal should have set aside the 26-7-2007 decision of the trial during the Court’s long vacation as a nullity for non-compliance with Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004. An appeal to this Court against the judgment of the Court of Appeal on a ground of law lie as of right and no leave of Court is required to so appeal by virtue of S. 233(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 which provides that “An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases- (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.” It is obvious that the complain in grounds 3 and 4 would involve a determination of the factual question of whether in the circumstances of the case, the concurrent decisions of the trial Court and the Court of Appeal refusing to lift the veil of incorporation are correct. The complain in ground 6 require a determination of the factual question of whether the circumstances of the case warrant a stay of the proceedings brought by the 1st respondent that was not a party to the agreement in TEW1 containing the arbitration clause. The Court in considering an application to lift the veil of incorporation of a company or to stay proceedings in a case would have to exercise its discretion having regard to the circumstances of the case. An appellate Court in reviewing such exercise of discretion must consider the facts of the case including the facts relied on by the trial Court in exercise of its discretion one way or the other.

Since grounds 3, 4 and 6 require the determination of issues of facts and law, they involve mixed questions of law and facts.​

Leave of Court to appeal on grounds of mixed law and must be obtained before the appeal can be competently brought. Since leave to appeal on those grounds was not obtained before the appeal on those grounds was filed, the appeal on the said grounds 3, 4, and 6 is incompetent. The said grounds of appeal are hereby struck out. Only grounds 2 and 5 are valid as they are grounds of law alone.

As it is, issues of Nos II and IV raised for determination in the appellant’s brief and the respondent’s brief are equally incompetent since they are derived from the incompetent grounds of appeal Nos 3,4 and 6. The law is settled that for an issue raised for determination in an appeal to be valid for consideration it must derive from a competent and a valid ground of the appeal. It would be incompetent and not valid for consideration if the ground from which it is derived is not competent. Therefore, issues nos ii and iv raised for determination in the appellant’s brief are hereby struck out.

As it is, only issues nos. i and iii raised for determination in the appellants and respondent’s brief are valid, as they derive from the competent grounds of appeal.

Let me now proceed to determine issues nos. i and iii in the appellant’s brief. Let me start with issue no. i which asks – “i. Whether the lower Court ought to set aside the ruling of the trial Court having found that the ruling was delivered during the annual vacation of the trial Court. Distilled from grounds 1 and 2 of the Notice of Appeal.”

I have carefully read and considered the arguments in the respective briefs on this issue.

On 25-6-2007, the trial Court heard the preliminary objection and application by appellants and 2nd respondent for an order of stay of the proceedings in Suit No. ID/86/2007 brought by the 1st respondent herein and an order referring the suit for arbitration. After conclusion of addresses by all sides, the trial Court reserved ruling on the application for 6-7-2007 at 12 noon. It is glaring from the record of this appeal that the trial Court did not render the ruling on that day. The said record show that it delivered the ruling on 26-7-2007.

It is not in dispute that as at 26-7-2007 when the ruling was delivered by the trial Court, its long vacation had commenced about 11 days before then, by operation of Order 45 Rule 4 (d) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides thusly- “During the long vacation i.e. the period beginning middle of July and ending on a date not more than 6 weeks later as the Chief Judge may by notification in the gazette appoint.”

The appellants herein contend that the trial Court lacked the Jurisdiction to deliver the said ruling after the commencement of the long vacation without the consent of all the parties first obtained to do so and without an application by any party for an urgent hearing of the suit and without a determination of the urgent need for the delivery of the ruling during the long vacation and that therefore the delivery of the said ruling on 26-7-2007 during long vacation is in breach of Rules 4 and 5 of Order 45 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides thusly “Subject to the directions of the Chief Judge, sitting at the High Court for the dispatch of Civil Matters will be held on every week day except:

(a) On any Public Holidays;

(b) During the week beginning with Easter Monday;

(c) During the period beginning on (Christmas Eve and ending on the 2nd January next following;

(d) During the long vacation i.e. the period beginning middle of July and ending on a date not more than 6 weeks later as the Chief Judge may by notification in the Gazette appoint.

(1) Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a judge during any of the periods mentioned in paragraphs (b), (c) or (d) of Rule 4 (except on a Sunday or public holiday) at where such cause or matter is urgent or a judge, at the request of all the parties concerned agrees to hear a cause or matter.

(2) An application for all urgent hearing shall be made by motion exparte and the decision of the judge on such an application shall be final.”

It is obvious that all the parties did not consent to the delivery of the ruling during long vacation, that there was no application by any of the parties to the Court for the urgent delivery of the ruling and there was no determination of the trial Court that there was urgent need for the delivery of the ruling during long vacation. So the provisions of Rules 4 and 5 (Supra) were not complied with before the trial Court sat to deliver the ruling during long vacation.

The appellants herein argue that the Court of Appeal was wrong to have held that the non-compliance with Rules 4 and 5 (Supra) did not vitiate the said ruling of the trial Court. The exact text of that portion of the Court of Appeal judgment reads thusly- ‘Nonetheless, contrary to the Appellant counsel’s submission, the mere fact that the delivery of the vexed ruling during the vacation period is in breach of/or contrary to the express provisions of Order 45 Rule 4 (d) of the High Court of Lagos State (Civil Procedure) Rules (Supra), notwithstanding. I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, it’s rather obvious, that on the 26/07/07 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo motu, that would have entitled the parties to the right of fair hearing (to re-address the Court) prior to the delivery of the ruling. Secondly, it was not the case of the Appellant that the delivering of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See OBODO vs Olomu (1987) 3 NWLR (pt.59) 111, ESEIGBE VS AGHOLOR (1990) 7 NWLR (pt. 61) CA/L/151/10 234, VERITAS INS. CO. LTD VS CITI TRUST INV, LTD (1993) 3 NWLR (PT281) 349.

Most particularly, in the latter case of VERITAS INS CO. LTD VS CITI TRUST INV. LTD (supra), this Court was to have aptly held, inter alia, thus –

Parties and or their counsel sit in Court and listen to the judgment being delivered. They do not play any sole beyond listening and at times taking down random notes in the course of the delivery of the judgment. Some do not take notes. They just listen and leave the Court at the end of the judgment, with the unusual cliché as the Court pleases even; when the pleasure of the Court is not the pleasure of the party who lost (sic) the case.

In my view, since the Appellant, even if in Court, was not to take any legal steps to vindicate his legal ‘right’ if any, he has not suffered any injustice. The best she should have done was to apply to arrest the judgment. In my view or opinion, failure to do so is not tantamount to a miscarriage of justice, in the light of the circumstances of and level of the non-compliance with the sales. The Appellant merely raised and fomented a heavy storm inside a very small tea cup. Beyond the turbulence of the storm there is really nothing. Perhaps the position should have been different if the matter was at the stage of physically taking evidence or at the point of address. Per Niki Tobi, JCA (as he then was), in his notorious erudite characteristics.

There is no gainsaying the fact, that by the well cherished doctrine of stare decisis (Judicial precedent), this Court is bound by the said previous decisions thereof, nay those of the Supreme Court for that matter.”

I think that this decision of the Court of Appeal cannot be faulted in view of Order 5 Rule 1 (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that “where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any directions as he thinks fit to regularize such steps”.

The delivery of the Judgment during long vacation in breach of Rules 4 and 5 of Order 45 High Court of Lagos State (Civil Procedure) Rules is a non-compliance with the requirements of the Rules as to time in the course of the proceedings.

By virtue of Order 5 Rule 1(2) (Supra), such non-compliance with the requirement of the Rules in the course of proceedings would not vitiate the proceedings or any step taken or anything done in breach of the Rules, unless where such non-compliance has caused injustice to the adverse party.

The hearing of the application had concluded on 25-6-2007. What was left was for the Court to give its verdict on the application. It reserved for it for 6-7-2007. There is nothing to show or suggest that the failure to render the ruling on the 6-7-2007 and the delivery of the Ruling on 26-7-2007 prejudiced the appellants and the 2nd respondent in any way. As rightly held by the Court of Appeal, the appellants did not even allege so or make such a case. Since the hearing of the application had ended, all the parties having been heard and the matter having become due for ruling and even adjourned to another date for that purpose, it would amount to sterile or arid legalism and dysfunctional judicialism to strike down the ruling for the mere reason that it was delivered during the long vacation without complying with Rules 4 and 5 of Order 45 of the High Court of Lagos State (Civil Procedure) Rules. Order 5 Rule 1 (2) (Supra) gives the Court the discretion to condone such non-compliance, treat it as a mere irregularity and not allow it to nullify the process or step in question.

It is important to note that in addition to the fact that the non-compliance with Rules 4 and 5 of Order 45 (Supra) did not occasion any miscarriage of justice, it is not non-compliance with the requirement of commencement of the suit and did not affect the competence of the process or the jurisdiction given to the High Court by S. 272(1) of the Constitution of the Federal Republic of Nigeria 1999 to admit and hear the case.

There is no doubt that non-compliance with the requirement of the rules for the commencement of a suit may affect the competence of the suit and may rob the Court of Jurisdiction to entertain it. But in this case, this is not that kind of non-compliance with the rules. The non-compliance with the rules in this case is in the course of the proceeding after it has validly commenced. Order 5 Rule 1 (2) (Supra) has given the Court the discretion to condone this class of non-compliance with the rules, treat it as a mere irregularity and not allow it vitiate the relevant process except where the non-compliance has in the circumstances of the case occasioned a miscarriage of justice.

In the light of the foregoing, I resolve issue no. 1 in favour of the 1st respondent. Having struck out issues nos. 11 and 111 and since the trial of the merit suit would go on at the trial Court no useful purpose would be served determining issue no. IV raised for determination in the briefs of all the parties.

On the whole, this appeal fails as it lacks merit. It is accordingly hereby dismissed. The appellants shall pay costs of five million naira to the 1st respondent.

SC.404/2013