Circumstances Where Compliance With Rules Of Court Can Be Dispensed With

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 6th day of May, 2022

Before Their Lordships

Mary Ukaego Peter-Odili

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar Justices, Supreme Court

SC./948/2015

Between

Mufutau Bamidele Akande Appellant

AND

1. Professor Olugbemiro Jegede

2. Toyosi Ogunseye (Reporter “News Star” Magazine)

3. Carriage Concepts Communications Ltd Respondents

(Publishers of “News Star” Magazine)

4. Dele Adeosun

(General Manager/Editor-in-Chief,

News Star Magazine)

(Lead Judgement delivered by Honourable Mary Ukaego Peter-Odili, JSC)

Facts

In 2007, the 1st Respondent, as Claimant at the trial court, filed some Writs of Summons together with other originating processes at the High Court of Lagos State Registry for three different suits which mainly were for libel against four Defendants jointly and severally. After the Writ of Summons was sealed, issued and processed for service on the Defendants, the 1st Respondent paid the statutory fees for service, and thereafter, the processes were assigned to the Sheriffs of the High Court in accordance with the rules of court to effect service. The Sheriff served the Appellant, the 2nd, 3rd and 4th Respondent in this appeal with the originating processes, and deposed to an affidavit of service. Three years later, while prosecuting the matter, the Appellant, 2nd, 3rd and 4th Respondent who retained the services of one law firm suddenly filed a Notice of Preliminary Objection, and applied that the names of the Appellant, 2nd and 4th Respondent be struck out because the originating processes were not served on them personally.

In the meantime, the 3rd Respondent informed the Sheriffs that she was authorised by the 2nd, 3rd and 4th Respondent to collect and sign for processes. The 2nd and 4th Respondent neither contested service of the originating processes, nor took steps in the proceedings at all. The 1st Respondent filed a Counter-affidavit to the Preliminary Objection. In its ruling, the court refused to strike out the Appellant, the 2nd and 4th Respondent’s names. Rather, the learned trial Judge found the services of the originating processes on the 2nd and 4th Respondent only irregular and set them aside, whilst service of the originating processes on the Appellant was held as regular. Based on the ruling of the trial Judge above, the 1st Respondent filed a motion ex-parte seeking to renew the Writ of Summons, inter alia. The trial court dismissed the application, and ordered that the 1st Respondent was precluded and restrained from proceeding against the 2nd and 4th Respondent with respect to the libel matter.

Dissatisfied with the ruling of court in respect of his ex-parte application, the 1st Respondent appealed to the Court of Appeal. The Court of Appeal gave judgement in favour of the 1st Respondent. Dissatisfied with the decision of the Court of Appeal, the Appellant has appealed to the Supreme Court.

At the Supreme Court, the 1st Respondent filed a Preliminary Objection, where he was argued that the grounds of appeal are of mixed law and facts and no leave was first sought for nor obtained before the filling of the Notice and Grounds of Appeal; hence, the ouster of the jurisdiction of court.

Issue for Determination

The following sole issue was raised for determination by the court:

Whether the Court of Appeal was right in setting aside the ruling of Honourable Justice O.A. Williams of the High Court of Lagos State, delivered on 29th day of July, 2010. In view of Order 6 Rules 6 & 7 of the High Court of Lagos State (Civil Procedure) Rules, 2004 and the circumstances of the case.

Arguments

Submitting on the issue, counsel for the Appellant contended that the court below gave judgement in disregard of the purpose and effect of the provisions of Order 6 of the High Court of Lagos State Rules, and the reason is that the motion ex-parte for a renewal of an expired Writ of Summons. The trial court considered the supporting affidavit and the circumstances of the case, and found that the grant of the application was against the relevant Order 6 Rules 6 & 7 of the Rules of that court. Counsel argued further that the application for renewal of the Writ, ought to have been made during the life span of the Writ of Summons sought to be renewed. Counsel relied on AJAYI v ADEBIYI (2012) 5 SC (Pt.III) 135. Counsel also argued that the right to fair hearing is substantially a question of opportunity of being heard, and the right lies in the procedure followed in the determination of a case, and not in the correctness of the decision arrived at in the case.

In response to the above submissions, it was submitted for the 1st Respondent that Rules of Court are for the attainment of justice and advancement of substantial justice, and that the appeal was anchored on mere technicality. Counsel also argued that the circumstances of the present case showed the mistake of service of the originating process was that of the court, and so the Respondents were excused on the non-compliance with the Rules of Court, and so the rules of fair hearing had been breached against the Respondent.

Court’s Judgement and Rationale

In deciding the preliminary objection, the Supreme Court examined the Grounds of Appeal and held that objection was academic, as the two grounds were grounds of law. Thus, it was not necessary for the Appellant to seek leave of court – ENTERPRISE BANK LIMITED v AROSO (2014) 3 NWLR (Pt. 1394) 256.

On the main issue before the court, the Supreme Court held that it is now notorious and trite law that all rules of court should be obeyed and followed. This is because rules of court are not for fancy or fun or window dressing, since they are helpful in regulating prosecution of cases in court, such that they occupy a place akin to a roadmap for the quick convenience, fair trial and orderly disposal of cases. Rules of court are part of the support system in the administration of justice. This is particularly important, as courts have departed from adherence to technical justice. However, to achieve the purpose of obeying the Rules of Court in advancement of the course of justice, the rules of court should not be tyrannical and uncompromising masters, as the Appellant has urged. This is to avoid a slavish interpretation, defeating the essence and purpose of the rules of court and ultimately the justice system.

There are instances where a party, due to no fault of his, is unable to comply with rules of court. Where there is such non-compliance, the attitude and reaction of the court will depend on the facts and circumstances of such case. The circumstances form part of the sole issue for determination, distilled and formulated by the Appellant in his brief of argument in this appeal. There are thus, exceptions to the jurisprudence that rules of court must be complied with. In a circumstance where a party who is unable to comply with the rules of court advances cogent materials for non-compliance, that brings his case within the exception for which the Applicant can get a waiver. In this regard, the provisions of Order 44 Rule 4 of the High Court of Lagos State Rules 2004, Section 6 (6), 17(2)(e), 36 and 272 of the 1999 Constitution come to mind as they are apposite, relevant and interrelated.

In the situation under review, the non-compliance with the rules of court as to service of originating processes was at the instance and mistake of the court when a party (a staff of the 3rd Respondent) held out to the Sheriff that he was authorised by the 2nd and 4th Respondent to accept processes on their behalf. In the record of appeal, the court below reproduced the affidavit in support of the motion ex-parte to renew the Writ of Summons and also served the 2nd and 4th Respondent by substituted service, found as a fact that non-compliance with the rules of court was occasioned and caused by the court and not the 1st Respondent. Clearly, the court below was on firm ground, and rightly held in the circumstance of this case, that the 1st Respondent has made a case that a litigant will not be held liable and punished for mistake of the court. It is now common place and trite in law that, he who comes to equity must do so with clear intentions and be ready to do equity. Should the Appellant, 2nd, 3rd and 4th Respondent wait until almost three years before raising the competence of the originating processes, a period well outside the six months when a Writ of Summons should have been renewed in accordance with the provisions of Order 6 Rules 6 and 7 of the High Court of Lagos State Rules 2004. What is more in taking the appeal to be dismissed? The service of the originating processes that was set aside by the trial court which evoked the motion ex-parte for a renewal of the Writ of Summons, was a mistake committed by the court which should not be visited on the 1st Respondent. This is because the court’s way of doing substantial justice in a matter, has been to move out and firmly so, out of the era of technical justice to the era of doing substantial justice based on the merits of the case. All that the Appellant urged in the entire process, is to make the rules for the sacrifices for justice on the altar of technicality, a situation roundly depreciated and condemned by the court – HDP INEC (2009) 8 NWLR (PT. 1143) 297.

Appeal Dismissed.

Representation

Appellant and counsel absent.

A.R. Fatunde with A.U. Umoso for the 1st Respondent.

2nd and 4th Respondents and their counsel absent .

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)