By Alaware Preye Isaac, Esq.
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The current legal trend/practice of filing letter of adjournment in the Magistrate and Customary/Area Courts across the country in the wake of the principle in the Supreme Court decision in REGISTERED TRUSTEES, P.C.N. V. ETIM (2017) 13NWLR (Pt.1581) 1, despite the non-universal nature of the principle, is an overstretch beyond the curia of applicability of the principle. The legal community in Nigeria was quite animated and understandably so, when in 2017 the Supreme Court handed down the pronouncement that a letter of adjournment must be filed in order for same to be a valid legal document before Court. Cheered by this pronouncement, some Courts even proceeded to place notices requiring counsel to take heed of this Supreme Court decision on the requirement of filing letter of adjournment.
May I prefatorily state here from the outset that the current legal trend/practice of filing letter of adjournment in Courts across the country is without doubt highly commendable and welcome owing to the counter-productiveness of adjournments to speedy justice delivery. Be that as it is, this discourse is a deliberate interrogation of this current legal trend/practice in the Magistrate and Customary/Area Courts against the backdrop of the law, as every practice and procedure in our legal system is or ought to be founded on the law. A practice or procedure that does not derive its legitimacy from the law remains unlawful and wrong no matter how popular it is. In the words of Saint Augustine; “Right is right even if no one is doing it; wrong is wrong even if everyone is doing it”. Leo Tolstoy also said; “Wrong does not cease to be wrong because the majority share in it”.
It is a given that prior to the Supreme Court decision in REGISTERED TRUSTEES, P.C.N. V. ETIM (Supra), counsel just submit letters of adjournment to Courts without filing. This Supreme Court decision is thus the catalyst and provocateur for requiring that adjournment letters be filed to be valid. My jurisprudential disquisition is; are Magistrate and Customary/Area Courts across the country therefore legally justified to have sweepingly joined the High Courts in the filing letter of adjournment bandwagon in the wake of the Supreme Court decision?
The facts of the case of REGISTERED TRUSTEES, P.C.N. V. ETIM (Supra) submit to brevity and easy appreciation. The Appellant commenced the suit at the High Court of Cross Rivers State against the Respondent claiming title to a parcel of land. The Writ of Summons filed on the 8th December, 2000 was simultaneously filed by the Appellant along with a Motion Ex Parte and a Motion on Notice for Injunction to restrain the Respondent from developing the land in dispute. The trial Court having refused to hear the Motion Ex Parte directed that the Respondent be put on notice. The case was then adjourned to 19th December, 2000 for the hearing of the Motion on Notice, the processes having been served on the Respondent. On the hearing date of the Motion on Notice, the Appellant and his counsel were in Court while the Respondent was absent and was not represented by counsel. The trial Court having satisfied itself that there was due service of all the processes including the Motion on Notice fixed for that day, proceeded to hear arguments from Appellant’s counsel and granted the order of interlocutory injunction. Dissatisfied with the decision of the trial Court, the Respondent appealed to the Court of Appeal where the order of interlocutory injunction was discharged on the grounds that the Respondent’s right to fair hearing was breached with the Court of Appeal relying on a letter of adjournment dated 19th December, 2000 written by counsel for the Respondent asking that the matter be adjourned to another date because he was engaged in another Court.
The Appellant dissatisfied with the decision of the Court of Appeal, appealed to the Supreme Court contending that the said letter of adjournment ought not to have been taken cognizance of as it was never brought to the attention of the trial Court. In allowing the appeal, the Supreme Court held inter alia that a letter of adjournment must be filed in order for same to be a valid legal document before Court. The material part of the Supreme Court decision at pages 41-42 paragraphs E-B goes thus;
“It is important to point out as well that if a document is meant for the court to take note and act thereon, rules of court have made provisions for formal filing of such a document or documents with the registry of the court, for which a nominal fee is payable upon assessment by the registry staff, who authenticate the filing of that document and proceed to file same for the court’s attention. It is only by formal filing when the court becomes seised of the document. All other ways or methods such as writing letters or petitions informing the Chief Judge/Chief Justice/Head of Court and or Chief Registrar (including his subordinate registrars) are purely administrative and have no force of law. Thus, the said letter written by the respondent to the registrar of the trial court was purely administrative and worse still, it was never brought to the attention of the learned trial Judge for consideration. To cap it all, Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) provides as follows;
‘A document shall not be filed unless it has indorsed on it the name and number of the cause, the date of filing and whether filed by plaintiff or defendant, and on being filed such indorsement shall be initialed by the Registrar’.
The letter claimed by the respondent to be placed with the registrar of the trial court, was never subjected to such criteria as provided by the Civil Procedure Rules (cited above). I have all reasons to believe therefore, that the said letter cannot be regarded as a legal document. Even if it is placed before the learned trial Judge, the best the learned trial Judge could do was to discountenance it”.
According to Okoro, JSC in WAMBAI V. DONATUS (2014) 14NWLR (Pt.1427) 223 at page 262 paragraph B; “It is trite that whenever the Supreme Court has given a decision on any issue, all lower courts and parties having similar issues so decided upon are bound by it”. Nevertheless, the cautionary words of Rhodes-Vivour, JSC in EMEKA V. OKADIGBO (2012) 18NWLR (Pt.1331) 55 at page 96 paragraph H are very fitting here, to wit; “A Judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them”.
From the material part of the Supreme Court decision in REGISTERED TRUSTEES, P.C.N. V. ETIM (Supra) reproduced above, the Court’s pronouncement is explicitly founded upon the therein reproduced provision of Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules, Cap. 51 Laws of Cross Rivers State of Nigeria, 1979.
In the light of the above, the applicability of the Supreme Court’s pronouncement (that a letter of adjournment must be filed in order for same to be a valid legal document) to a matter is only to the extent that the rules of the Court where the matter is pending also contains a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) upon which the pronouncement of the Supreme Court is founded. In other words, the principle requiring filing letter of adjournment as held by the Supreme Court pursuant to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) can apply in a matter only if the rules of the particular Court contains a provision similar to the Order 54 Rule 6 requiring filing of documents submitted to the Court.
The extant legal trend/practice of filing letter of adjournment in the various High Courts and the National Industrial Court in the wake of the Supreme Court decision is very much legally justified and this is because their respective rules contain a provision that is in pari materia with the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) upon which the pronouncement of the Supreme Court is founded. Worthy of note in this regard is the statement of the law aptly enunciated by Eso, JSC in UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1NWLR (Pt.1) 156 at page 170 paragraphs B-C that “when a lower Court is faced with the construction of a rule in pari materia with one that has been construed by this Court, the lower Court has no option but to follow the principle laid down by this Court in its construction of that rule”. By virtue of the actuality that the respective rules of the various High Courts and the National Industrial Court contain a provision that is in pari materia with the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra), it logically follows that these Courts are therefore legally justified to follow or be bound by the Supreme Court decision in REGISTERED TRUSTEES, P.C.N. V. ETIM (Supra).
Now taking a look at the various rules of Court; the Order 56 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019 provides thus; “A document shall not be filed unless it has endorsed on it the name and number of the case, the date of filing and whether filed by plaintiff or defendant, on being filed the endorsement shall be initialed by the Registrar”. The Order 52 Rule 9 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 provides thus; “A document shall not be filed unless it has endorsed on it the name, number of the cause, date of filing and whether filed by claimant or defendant, and on being filed such endorsement shall be initialed by the Registrar and recorded in the process register”. Similarly, the Order 49 Rule 9 (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2019 stipulates as follows;
(1) A document shall not be filed unless it has indorsed on it the; (a) name and number of the cause, (b) date and party of filing (as Claimant or Defendant)
(2) On being filed, such indorsement shall be initialed by the Registrar and recorded in the Process Register.
For similar provision, see the Order 45 Rule 9 of the Bayelsa State High Court Rules, 2010; the Order 45 Rule 9 of the Rivers State High Court (Civil Procedure) Rules; the Order 58 Rule 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. The common denominator to note is that the Order headed Miscellaneous Provisions in the various rules of Court houses this provision and this is the case also under the old Uniform Civil Procedure Rules.
While it can be said that the extant legal trend/practice of filing letter of adjournment in the various High Courts and the National Industrial Court in the wake of the Supreme Court decision is very much legally justified because their respective rules contain a provision that is in pari materia with the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) upon which the pronouncement of the Supreme Court is founded, can the same be said of the Magistrate and Customary/Area Courts across the country? The only safe answer to this poser is that; the extant legal trend/practice of filing letter of adjournment in a Magistrate or Customary/Area Court in the wake of the Supreme Court decision can be legally justified only if the rules of the particular Magistrate or Customary/Area Court contains a provision that is in pari materia with the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra).
Deriving from the immediate foregoing, filing letter of adjournment for instance in the Lagos State Magistrates’ Court can be said to be legally justifiable as the Order 23 Rule 14 of the Lagos State Magistrates’ Courts (Civil Procedure) Rules, 2009 contains a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra). The said Order 23 Rule 14 of the Lagos State Magistrates’ Courts (Civil Procedure) Rules provides as follows; “No document shall be filed unless it bears the reference number of the proceedings and the names of the parties and unless the prescribed fee has been paid”.
I may not have been privileged to have perusal access to a vast majority of the various rules of the Magistrate and Customary/Area Courts across the country, I can nevertheless most humbly posit that a Magistrate or Customary/Area Court whose rules does not contain a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) is not legally justified to apply or be bound by the Supreme Court decision in REGISTERED TRUSTEES, P.C.N. V. ETIM (Supra) when called upon to discountenance a letter of adjournment that is not filed, no matter the advocatorial push from counsel averse to a letter of adjournment.
In the wake of the Supreme Court decision, some cases may already have been won or lost, or far-reaching decisions arrived at in some cases at the Magistrate or Customary/Area Courts on the basis of letter of adjournment that was discountenanced for having not been filed. Considering the grave implications that follow the discountenancing of an unfiled letter of adjournment, it is my humble standpoint that any decision of a Magistrate or Customary/Area Court to discountenance an unfiled letter of adjournment should be based on a sound legal footing, to wit; by founding same on a provision in its rules that is in pari materia with the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra).
Magistrate and Customary/Area Courts whose rules do not contain a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) are by and large not legally justified to discountenance a letter of adjournment that is not filed, however, counsel are respectfully enjoined to still continue with the current legal trend/practice of filing letter of adjournment in such Magistrate and Customary/Area Courts, out of an abundance of caution (ex abundanti cautela). That said, a germane take home is that, a party whose unfiled letter of adjournment was discountenanced with resultant far-reaching impacts on a matter, seemingly has an arguable ground to test such a far-reaching outcome where the rules of the particular Court does not contain a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra).
Since every practice and procedure in our legal system is or ought to be founded on the law, Magistrate and Customary/Area Courts whose rules do not contain a provision similar to the Order 54 Rule 6 of the Cross River State High Court (Civil Procedure) Rules (Supra) upon which the pronouncement of the Supreme Court is founded, should whenever the opportunity to amend rules of court present itself, favourably consider incorporating this provision. This would give the desirable legitimacy to the highly commendable current legal trend/practice of filing letter of adjournment in the various Magistrate and Customary/Area Courts across the country.
Alaware Preye Isaac, Esq. a Legal Analyst and a Private Legal Practitioner is an Associate Counsel in the Law Firm of Timi Ambaiowei & Associates, Yenagoa, Bayelsa State, Nigeria.
He can be reached via; isaacalaware@gmail.com or WhatsApp (0803 660 8073)
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