Legal procedures change with the change of time in order to give an effect to the will of the law, and make the justice prevail. This makes the courts of law uphold the fact that, the heydays of technicality are over and a way is paved for the arrival of substantial justice. It is a known fact that, legal practitioners are bound to make mistakes while drafting, filing or serving the court processes which ordinarily attract sanctions or penalties. But in trying to give a life to substantial justice to live, some mistakes or errors maybe overlooked in order not to allow the strict compliance to suffocate the process of justice delivery. In ABUBAKAR vs. YAR’ADUA (2008) 4 NWLR (pt 1078) Tobi JSC, of blessed memory observed that : ” blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. ”
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Technicality was defined in the case of OSAREREN vs. FEDERAL REPUBLIC OF NIGERIA (2018)10 NWLR (pt. 1627)221@226, in the following words: “Technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. In other words, it arises when a party relies on or holds tenaciously unto the rules of court with little or no regard to the justice of the matter. As far as such a party is concerned, the rules must be followed to the last sentence, the last word, and the last letter. The party emphasizing technicality has little or no regard to the justice that would be sacrificed or the injustice that would be caused to the opponent. ”
Apparently, the procedural rules are made to guide the court of law and the legal practitioners, and they are meant to be strictly obeyed. However, no rule of court is made to defeat or stand as a clog to the process of justice delivery .This is because these rules are meant to serve as beacon lights to the parties to a dispute illuminating the path leading to justice. There is no doubt that the purpose of these rules has been changed to something else and rules are used to delay trials or frustrate legal proceedings in the name of winning the cases by all means.
In WILLOUGHY vs. IMF (1987)1 NWLR (pt. 48)105, the Supreme Court held that “… It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment.. ”
No one is of the view that rules of court should not be adhered to, but when the strict adherence to these rules will result in injustice, court should not insist on the strict compliance. It is a trite that non compliance with the rules attract penalty unless it is minimal, but one should not place technicality over substantial justice, this is because insistence on compliance with rules of court would amount to technicality and would defeat the intendment of law makers if such is allowed.
In FRN vs. DAIRO (2015)6 NWLR (pt 1454)141 the court held that: “Rules of court are meant to be obeyed. However, obedience to rules must not be slavish to the point that justice in a case is destroyed or thrown overboard…. Therefore, if in the course of doing justice, some harm is done to some procedural rules which hurt the rule, the court should be happy that it took such line action in pursuance of justice. ”
I find it necessary to give some instances where technicalities were unnecessarily relied on in order to delay or stultify the process of justice delivery. Before that, let’s first consider what Fabiyi JSC said “the current vogue is substantial justice… but one should not talk of technicality when a substantive provision of the law is rightly invoked.”
In line with above statement, it is shown that judicial authorities have been rightly shifted from reliance on undue technicalities to substantial justice.
1- BANK OF INDUSTRY LIMITED & 2 ORS vs. PRINCE MICHEAL ADEWALE & 1 OR (2014).
In this case, the trial court struck out the matter on the ground that service of originating process was not effected personally on the defendant and the rule is that originating processes are to be served personally on parties except where the court ordered substituted services , as such, it held that, the court lacked the requisite jurisdiction. It was argued in this case that, where the writ of summons has been regularly issued and effected on a party without compliance with the Sheriffs and Civil Process Act, what is void and to be set aside in this case is the service and not the writ itself.
I’m of the view that, if technicality is allowed in this case, definitely the substantial justice would definitely be handcuffed. Even though the trial court struck out the case based on the technicality, the judgment of the trial court was later set aside on appeal. It was held on appeal that: “the rules of court relating to service is merely a rule of procedure and not a rule of substantive law conferring jurisdiction on a court of law.
That substantial justice, where possible, must not be allowed to be defeated by irregularities or technicalities that could be cured by the exercise of a court’s discretion. ”
Though, to effect service of the originating process on the party is fundamental to the trial. Notwithstanding, where the party who is to be personally served with a process has entered his appearance, I don’t think that there’s a need for reliance on technicality to defeat the interest of justice since the purpose of service is already achieved. The court is expected to use its discretion judicially and judiciously and order the service of court process to be properly effected as required where the personal service is mandatory not to strike out the case in totality.
In a related case, ADISA vs. MOHAMMED (2014) ALLFWLR (pt.732) 1828 where a party insisted on the fact that affidavit of service must be shown to prove that the service was actually effected on the party. It was held that: “Where the party who is to be served with a process appears in court, there will not be need to still insist on affidavit of service to prove the service except where personal service is mandatory.’’
2- In AGUNBIADE vs. OKE (2015) ALLFWLR (pt. 811)1330 C.A at 1333 where the petition of the appellants was struck out on grounds of wrong heading” Presidential and Assembly Election Tribunal” instead of” National and State House of Assembly Election Tribunal” The court on appeal held that: “The court has consistently shifted away from the narrow technical approach to justice and now pursues instead, the course of substantial justice. Court of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned.”
To bring us back to the era of technicality; a legal practitioner may choose to turn the eyes of court at a minimal error which causes no harm to his case, and strongly relies on the said error as the only alternative for him to destroy the case. However, a judge whose duty is to give a room to substantial justice to live should not be carried away by any unproductive display from the bar to defeat the course of justice. Rather, the judge will order the other party to do the needful which is amendment of court process.
3- In OBASI vs. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) ALLFWLR (pt. 859) 811 SC, a misnomer occured when the correct person was brought to court under a wrong name which happened to be the ground among other grounds of appeal. It was held in this case that: “The day of technicality in the application of law and rules are spent. Technical justice has been replaced by substantial justice in our courts. ”
The decision of courts in above cases brings back to my memory the statement of WALTER SAVAGE LANDOR who says: “When law becomes a science and a system, it ceases to be justice.” The Supreme Court has even made it clear to every legal minded persons in EZE vs. FRN (2017)15 NWLR (pt. 1589)433 that “justices of the Supreme Court are not judicial technicians and Supreme Court is not a workshop of technical justice.”
To unveil the truth, there are frivolous applications that legal practitioners file to frustrate the case or the party in a suit. In some cases, a legal practitioners use that as a tactic to delay or play the judge without considering that lives or livelihood of parties are at stake.
It is important to note that, no matter how a legal practitioner relies on technicalities, justice would be done at the end of the case. The courts of law know how to invoke procedural rules and substantive laws together in arriving at the substantial justice. It was held in WASSAH vs. KARA (2015)4 NWLR (pt. 1449)374@385 that “law is blind. It has no eyes. It cannot see. That explains why a status of a woman with her eyes covered can be found in front of some high court. On the contrary, justice is not blind. It has many eyes, it sees, and sees very well. ”
It is a notion from people’s school of thought that, lawyers are liars or lawyers are trained how to change white to black and vice versa. I can safely dispute that assertion to some extent, but unfortunately, one of my hands is tied down when I see a lawyer raising undue objection to frustrate the case. Nevertheless, lawyers are not liars, and the presumption of those who believe that lawyers are liars is built on the total ignorance of what the legal profession is all about. This is because; a man stretching his neck from outside to see what is happening inside cannot claim to see the true story of the incidence.
The Rules of Professional Conduct has made it known to a legal practitioner, particularly Rule 14 and 15 that, lawyers should properly render legal services to their client, and it doesn’t mean that, lawyers should blindly argue a case to defeat the course of justice or file baseless application in order to satisfy their client without considering the substantial justice.
Rule 14 (1) It is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and subject to any rule of law to act in manner consistent with the best of the client.
Rule 14 (2) Without prejudice to generality of paragraph (1) of this rule, a lawyer shall –
(e) Where he considers the client’s claim or defense to be hopeless, inform him accordingly.
Rule 15(1) in his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.
Rule 15(3) in his representation of his client, a lawyer shall not-
(b) File a suit, assert a position, conduct a defense, delay a trial, or take over action on behalf of his clients when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another.
(c) Knowing advance a claim or defence that is unwarranted under existing law, but he may advance such claim or defence if it can be supported by argument in good faith for an extension, modification, or reversal or existing law.
In BUHARI vs. OBASANJO (2003)17 NWLR (pt 850) 587, it was held that: ‘The beauty of law in a civilized society is that, it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technically or outmoded or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands. ”
Legal practitioners as ministers in the temple of justice are expected to assist the courts to do justice to a case and not otherwise, and also forgo unnecessary technicalities in the interest of justice. CC Nweze JSC while citing Abiru JCA in IDISI vs. ECODRIL NIG. LTD (2016)12 NWLR (pt. 1527)355@ 362 said “Lawyers who misuse their knowledge of the law and legal procedure to stultify the process of administration of justice are a disappointment and constitute a clog to the progress of the legal profession.” Judges are also expected to exercise their discretionary powers in ignoring undue technicalities and striking out motion meant to delay trials.
In conclusion, it is submitted that the era of technicalities is gone and this does not means that, rules of court should be disregarded but where non-compliance with the rules cannot affect or cause any miscarriage of justice, undue technicality should not be listened to in order to attain substantial justice.
By : Y. A, Usman Esq (Ar-rohees),Email: rohees9090@gmail.com, Phone: 07033589425
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