USMAN v. TAMADENA & CO. LTD & ORS

CITATION: (2015) LPELR-40376(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON FRIDAY, 22ND MAY, 2015Suit No: CA/K/95/2009

Before Their Lordships:

UWANI MUSA ABBA AJI Justice, Court of AppealABDU ABOKI Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal

BetweenALH. BALA USMAN - Appellant(s)

And1. TAMADENA & COMPANY LTD2. GALADIMA DZARMA LAUSHI3. A.G. OF KADUNA STATE4. BUREAU FOR LANDS, SURVEY AND COUNTRYPLANNING, KADUNA STATE

- Respondent(s)

RATIO DECIDENDI1. JUSTICE - TECHNICAL JUSTICE: Attitude of Court to technical justice

"Having regard to the fact that the Appellant partook in the proceedings and was not misled in any way to havecaused or occasioned injustice on him. I am in agreement with the decision of the learned trial judge that Courtsare instituted to do justice and it will be abandonment of the Courts responsibility to succumb to a blackmail of acounsel to take backward step in the administration of substantial justice by allowing counsel to rely ontechnicality to shore up their case. See OKOYE V. NWULU (2001) 11 NWLR (PT. 724) 362 AT 366. The heydays oftechnicality are now over because the weight of judicial authorities today shifted from undue reliance ontechnicalities to doing substantial justice even-handedly to the parties to the case See AKPKINIOVO V. AGAS (2004)NWLR (PT 881) 39A at 422 423; and EGOLUM v. OBASANJO (SUPRA)."Per ABBA AJI, J.C.A. (P. 20, Paras. B-F) - read in context

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2. JUSTICE - TECHNICAL JUSTICE: Attitude of Court to technical justice"The issue of non-compliance with Rules of the High Court of Kaduna State raised by the counsel to the Appellantand which culminated in this appeal was open display of the unhealthy romance that the Counsel to the Appellanthas with the technicalities of the law. Unfortunately for Counsel, the Courts are no longer enthralled by suchdisplays and are focused on the substance rather the technicalities of the law. The Courts have shifted away fromthe orthodox method of narrow technical approach to justice and the weight of judicial opinion is nowpredominantly in favour of the Court doing substantial justice, as opposed to technical justice. This is becausetechnical justice, in reality, is not justice but a caricature of it. It is justice in inverted commas and not justicesynonymous with the principles of equity and fair play. In the immortal words of Oputa, JSC in Bello v. Oyo State(1986) 5 NWLR (Pt 45) 826 at 886:The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But thespirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration ofjustice to be found in successfully picking one's way between pitfalls of technicality. Law and its technical rulesought to be a handmaid to justice..."The point was reiterated by Edozie, JSC in Buhari v. Obasanjo (2003) 17 NWLR (Pt 850) 587 thus:The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should beprogressive and act as a catalyst to social engineering. Where it relies on mere technicality... orincomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronisticand it destroys or desecrates the temple of justice it stands on."Per ABIRU, J.C.A. (Pp. 27-28, Paras. C-F) - read incontext

3. PRACTICE AND PROCEDURE - RULES OF COURT/ STATUTORY PROVISION: Whether rules of Court must beobeyed and effect of non-compliance thereof"It is now settled principle of practice and procedure that Rules of Court are meant to be obeyed and followedbecause they regulate matters in Court and make for the smooth administration of justice. The Rules must beobserved and it is the duty of the Court to give effect to the rules and practice of a Court and parties cannot byconsent or acquiescence ignore the rules. See KACHIA V. YAZID (2001) 17 NWLR (PT. 742) p. 88 AND F.C.E., OYO V.AKINYEMI (2008) 15 NWLR (PT. 1109) P. 21 AT 48."Per ABBA AJI, J.C.A. (Pp. 14-15, Paras. E-A) - read in context

4. PRACTICE AND PROCEDURE - NON-COMPLIANCE WITH RULES OF COURT: Effect of a breach of a rule ofpractice and procedure"As stated earlier, rules of Court are purposely made to be obeyed and followed, therefore all procedure set by therules must be complied with. However, where in the course of following the rules some errors or mistakes arecommitted or omitted, such error or mistakes would not out rightly render the proceedings a nullity.Depending on the circumstance of each particular case, where the noncompliance has occasioned miscarriage ofjustice or where the right of the adverse party will be affected, the Court shall not treat the non-compliance as amere irregularity and as such mandate the rules to be followed or nullify the proceedings as the case may be. Butin a situation where it has not occasioned miscarriage of justice it shall be treated as a mere irregularity andshould not vitiate the proceedings. This is because all rules of Court are made in aid of justice and that being so,the interest of justice will have to be given priority over any rule, compliance of which will lead to outright injustice.The Rules are not sine quo non in the determination of a case and therefore not immutable. See ONI V. FAYEMI(2008) 8 NWLR (PT. 1089) 408.In ABUBAKAR V. YAR'ADUA (2008) 4 NWLR (PT. 1078) P. 465 AT 510 PARAS G - H, the Supreme Court held interalia that:It is not every non-compliance with rules of court that vitiate the proceedings or do harm to the party in default. Asa matter of our adjectival law, and by the state of the non-compliance rules, the Courts will regard certain acts orconduct of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as a matterof our adjectival law, non-compliance rules in their aggregate content point more to this trend than the reverseposition of a punitive nature against the non-complying party. The state of the law is more in favour of forgivingnon-compliance with rules of Court, particularly where such noncompliance, if waived, will be in the interest ofjustice."Per ABBA AJI, J.C.A. (Pp. 16-18, Paras. D-B) - read in context

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5. PRACTICE AND PROCEDURE - RULES OF COURT/ STATUTORY PROVISION: Whether mandatory terms inRules of Court/Statute must be obeyed and the exceptions thereof; difference in the application of mandatorywords in Rules of Court, a Statute or an agreement"The Appellant's counsel argued further that by the use of the word "shall" in Order 5 Rule 1 above, connotes acommand of an obligation and cited many authorities on that. It is not in every case that the word 'shall'commands obligation because it depends in the context in which it was used. The word (shall) may be interpretedas mandatory, obligatory or merely directory depending on its contextual usage. See OLANIYA V. OYEWOLE (2008)5 NWLR (PT. 1079) P. 114 AT 437. In RE UBA (2008) 7 NWLR (PT. 1085) 70 AT 81 PARAS E - H. The Supreme Courtper Tabai, JSC stated the law as follows:"Rules of Court remain rules of Court and cannot be accorded a status as immutable as statutory provisions.As mandatory rules of Court are not as sacrosanct as mandatory statutory provisions, Courts of justice are moreinclined to regard as directory or permissive any provision in the rules of Court which appears mandatory, if it isimplicit in the provision in question or if a combination of other provisions with the provision in question so dictatesor if the ends of justice demands that it be so construed. See KATTO v. CBN (1991) 9 NWLR (PT. 214) 126.In the instant case, the default, mistake or error that resulted in the non-compliance with the rules was that of theCourt's Registry and not the fault of the 1st and 2nd Respondents. The Respondents complied with all the rules asregard initiation of a suit but the Court on its own part mistakenly omitted to sign and seat the writ. I do not thinkthat it will be fair to visit the sin of the Registrar on that of the 1st and 2nd Respondents.See ODOFIN V. ONI (2001) 17 NWLR (PT. 701) P. 488 AT 501.Order 5 Rule 1(2) of the High Court (Civil Procedure) Rule 2007 provides:"Where at any stage in the course of or in connection with any proceedings there has by reason of any thing doneor left undone been a failure to comply with the requirements as to time, place, manner or form the failure shall betreated as an irregularity and may not nullify such steps taken in the proceeding. The Court may give any directionas it thinks fit to regularize such steps."See IBIECHEFU V. GOV. IMO STATE (2008) 14 NWLR (PT. 1106) P.22 IGWE UZUR V. ONWUZOR (2007) 4 NWLR (PT.1024) P. 303 AT 315."Per ABBA AJI, J.C.A. (Pp. 18-20, Paras. B-B) - read in context

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6. PRACTICE AND PROCEDURE - NON-COMPLIANCE WITH RULES OF COURT: Effect of a breach of a rule ofpractice and procedure"This appeal turns on the effect of non-compliance with the provision of Order 6 Rule 2(1) of the High Court ofKaduna State Civil Procedure Rules 2007 which states that "issue of an originating process takes place upon itsbeing signed by the Registrar or other officer of the Court authorized to sign the writ". The question before thelower Court was - where the Registrar or other officer authorized by the Court fails to sign a writ of summons, doesit amount to a fundamental defect that nullifies the entire proceedings of the Court or a procedural irregularity thatcan be overlooked.Now, it is trite that Rules of Court are part of the machinery of justice made by the Courts to regulate theirproceedings. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of thenature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act and consequently have theforce of law.Accordingly, as a general rule, Rules of Court must be obeyed by litigants and they are binding on all the partiesbefore the Court - Aromolaran v. Oladele (1990) 7 NMLR (Pt 162) 359, Duke v. Akpabuyo Local Government (2005)19 NMLR (Pt 959) 130, owners of the MV "Arabella" v. Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt1097) 182, Agip (Nig) Ltd v. Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348.It must, however, be understood that not every non-compliance with the Rules of Court is necessarily fatal to thecase of party or to the process filed by a party in a matter. One of the most firmly established principle of judicialadjudication is that the Rules of Court must never be interpreted to defeat the course of justice and that where theeffect of a strict adherence to a provision of the Rules of Court will hinder the Court from performing its primaryduty of doing substantial justice between parties to a dispute, and. cause injustice, the Court must jettison theprovision in favour of the doing of substantial justice. This principle has been consistently reiterated by theSupreme Court over the years and a few instances will be mentioned as examples. In UTC (Nig) Ltd v. Pamotei(1989) 2 NWLR (Pt 103) 244, Belgore, JSC (as he then was) stated at page 296F that:"Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to helpthe cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of theCourt. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will bemaking the Courts slavish to the Rules. This certainly is not the raison d'etre of the Rules of Court."In Federal Government of Nigeria V. Zebra Energy Ltd (2002) 18 NWLR (pt 798) 162 Belgore JSC (as he then was)again stated at pages 204 - 205 thus:"... Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the Court toarrive at the justice of a case... The Court shall never be shackled by procedure; case is not made for procedure, itis the other was round. Once the procedure employed has brought into focus the issues the parties contest andthere is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to thedestination is what is important; it does not matter the means used. This Court will certainly not disturb a clearcase of justice between the parties by suo motu raising for the parties procedural abnormalities ... what is relevantin a case of this nature is the question of justice of the case."In Fidelity Bank Plc V. Monye (2012) 10 NMLR (Pt 1307) 1, Adekeye, JSC at page 32 F-H made the point thus:"Rules of court touch upon the administration of justice. They are promulgated to regulate matters in court and toassist parties in the presentation of their case within a procedure made for the purpose of a fair and quickdispensation of justice. The courts have leaned heavily on the side of doing justice.... The rules must beunderstood as made with that fundamental principle at the background.Whatever the case may be in the court proceedings, the rules are no more than an adjunct to the course of justice.The court must never interprete a rule of court to defeat access to justice which is guaranteed by theConstitution."It is in this wise that the Supreme Court categorically stated that any noncompliance with the Rules of Court isprima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of naturaljustice - Okoye v. Nigerian Construction Co Ltd (1991) 6 NWLR (Pt 199) 501, Famfa Oil Ltd vs. Attorney General,Federation (2003) 9-10 SC 31. The drafters of the High Court (Civil Procedure) Rules of practically every State,including Kaduna State recognize this principle and have a provision in all the Rules of Court to the effect that"where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection withany proceedings, there has, by reason of anything done or left undone, been a failure to comply with therequirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, thefailure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document,judgment or order therein."Speaking specifically on the procedure in the Rules of Court guiding issuance of originating process, the SupremeCourt has held that it is purely an administrative matter of the Court's Registry which does not involve a claimantor plaintiff and that failure to sign an originating process by the designated officer is a mere procedural irregularitywhich cannot by fig of imagination be placed on the shoulders of the claimant or plaintiff who has done all that isnecessary to file and commence the action - Saude V. Abdullahi (1989) 7 SC (Pt II) 116 and Famfa Oil Ltd v.Attorney General, Federation supra.The answer to the question that confronted the lower Court in this matter, therefore, was that the non-compliancewith the provisions of Order 6 Rule 2(1) of the Rules of the High Court of Kaduna State in the issuance of the writ ofsummons was a mere procedural irregularity that did not affect the validity of its proceedings."Per ABIRU, J.C.A.(Pp. 21-27, Paras. F-C) - read in context

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UWANI MUSA ABBA AJI, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the ruling

of Hon. Justice Esther Inuwa of Kaduna State High Court in

Suit No. KD/KAD/418/2008, delivered on 4/2/2009, wherein

the Appellants motion seeking to set aside the 1st and 2nd

Respondents writ of summons for want of issuance on the

basis that it was not signed by the Registrar of the Court as

required by the rules of Court, was dismissed by the

learned trial judge.

The 1st and 2nd Respondents as plaintiffs' at the lower

Court claims against the Appellant/Defendant as per

Paragraph 19 of the statement of claim dated 18th

September 2008 as follows:

a. A declaration that the 1st plaintiff is the beneficial owner

of the plot of Land Lying and situate at No. 6 Road 'N' on

TPO 460A, extension of light industrial layout, Tudun Wada,

Kaduna covered by Certificate of Occupancy no. KD. 901

dated 27th June 1998 and the 2nd Defendant has a

subsisting equitable interest over the said plot of Land by

virtue of the Sale Agreement dated 22nd December 1997.

b. An order of perpetual injunction restraining the

Defendants, their agents,

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servants and privies or persons claiming through them or

on their behalf from building continuing to build, fence,

construct or doing anything whatsoever on plot No. 6 Road

'N' on TPO 460 A, situate at the extention of light industrial

layout Tudun Wada, Kaduna, Kaduna State.

c. An order directing the 1st defendant to demolish the

fence project and other developments that he had

embarked upon and/or he is embarking upon and to vacate

the said piece of land belonging to the plaintiffs.

d. General damages against the 1st defendant for the

trespass and illegal encroaching on the property belonging

to the plaintiff in the sum of One Mill ion Naira

(N1,000,000.00) only.

e. The cost of prosecuting this suit.

On its part the Appellant said that on 23/6/2000 the

Governor of Kaduna State granted a Certificate of

Occupancy over same plot of land with No. KD.2576 for the

plot with TOP 460 A to Umura Ventures Nigeria Ltd which

was later assigned to him through a Deed of Assignment

dated 23/3/2008. That he constructed the said fence before

the commencement of the suit.

��Subsequently, the 1st and 2nd Respondents filed this suit

against the Appellant,

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and 3rd & 4th Respondents applied and were granted an

interlocutory injunction restraining the Appellant pending

the determination of the suit. After pre-trial conferences,

the Appellant by a motion on notice dated 13/1/2009 and

filed 19/1/2009 brought an application praying for the

following reliefs:

1. An order of the Court to set aside the undated writ of

summons in this suit No. KHD/KAD/418/2008 as same was

not issued.

2. And for further order(s) the Court may deem fit to make

The grounds of the Application are that:

1. The writ of Summons does not comply with Order 6 rule

2 of the Kaduna State High Court rules as it was not

issued by the Registrar of the Court or any other person

duly authorized to issue it.

2. The memorandum to be subscribed on the writ relating

to its life span does not comply with Order 3 Rule 3 (form

1).

The trial Court in a well considered ruling dismissed the

said motion.

The Court in dismissing the application held inter alia as

follows:

"Furthermore, the 1st Defendant has not shown in what

way, the plaintiff is responsible for the action or as the case

may be, the omission(s) of the

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Court Registry".

"From the facts before me and the peculiarity of this

matter, I am not able to visit the "sin" of the Registry on the

Plaintiff nor his counsel so as to invalidate this suit.

Consequently, the Application of the 1st Defendant fails

and same is hereby dismissed".

Being dissatisfied with the decision of the learned trial

judge, the Appellant appealed to this Court vide a notice of

Appeal dated 10/2/2009 and fife 17/2/2009 upon 2 grounds

of Appeal as herein under reproduced

GROUNDS OF APPEAL

GROUND ONE

The Lower Court erred in law when it dismissed the

Appellant motion of 13/1/2009 and held that the

Appellant waived his right to complain about the writ

of summons because of all the steps he has taken.

PARTICULARS

i. The Writ of Summons was neither dated nor signed

or issued by the Registrar of the lower Court or any

authorized person.

ii. The defect on the Writ is fundamental and goes to

jurisdiction.

GROUND TWO

The Court erred in law when it refused to invalidate

the Writ of Summons on account that the plaintiff

should not be penalized for failure of a Court official

to endorse

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writ.

PARTICULARS

i. The Writ of Summons was in breach of the Kaduna

State high Court (Civil Procedure Rules) 2007

ii. The Appellant complain was not on endorsement

but issuance.

Briefs of argument were filed and exchanged by counsel to

the parties in accordance with the rules of this Court.

The Appellant's brief of argument settled by S.O. Omoloba

Esq. (Mrs.) was dated and filed on 20/5/2009, wherein 2

issues were formulated for determination of the Appeal to

wit:

1. Whether non-compliance with the Rules of Court

requiring the Registrar of the Lower Court to sign (seal) a

writ of summons render the writ a nullity or mere

irregularity.

2. Whether the Appellant has waived his right to complaint

because of the steps he has taken in respect of a writ that

was never issued.

The 1st and 2nd Respondents consequentially filed their

brief of argument dated and filed same day on 24/6/2009,

settled by Femi Morahundiya Esg., therein the 1st and 2nd

Respondents adopted the 2 issues as formulated by

Appellant.

The 3rd and 4th Respondents filed no any brief of

argument.

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At the hearing of the appeal on 2/3/2015, counsel

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to the Appellant adopted his brief of argument and prayed

this Court to allow the appeal while the counsel to the 1st

and 2nd Respondents adopted his brief and urged the

Court to dismiss the Appeal.

I shall now proceeded to consider the appeal on a single

issue rephrased thus:-

"Whether non-compliance with the Rules of the Court

requiring the Registrar of the Lower Court to sign (seal) a

writ of summons render the writ a nullity or a mere

irregularity"��.

It is the contention of the Appellant's counsel that Order 3

Rule 3 and Order 6 Rule 2 (1) of the Kaduna State

High Court (Civil Procedure) Rules, 2007 provides for

procedure or mode for commencement of Civil action in the

State but the 1st and 2nd Respondents writ of Summons

failed short of these requirement provided by the Rules.

That the Writ was simply prepared by the Counsel to the

Plaintiff and dumped on the Court without more. That Writ

was never issued or sealed or signed as required by the

rules and that it does not bear any date.

Learned counsel maintained that the defect is fundamental

and therefore renders the Writ invalid, because it is not a

mere irregularity which ought

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to be set aside. He relied on CHIDOBI V. UJIEZE (1994) 2

NWLR (PT. 328) P 554 AT 556 and IGWE UZOR &

SONS NIG LTD V. ONWUZOR (2007) 4 NWLR (PT.

1024) P 303 AT 314 all decisions of this Court to the

effect that issue of writ takes effect upon being signed by

the Registrar or officer of the Court.

He submitted that by Order 5 Rule 1, of the Kaduna

State High Court Civil/Procedure Rules, 2007, the

consequences of the failure to comply with the rules in the

beginning of an action is that such processes shall be

nullified. He contended that where rules of Court provides

for the procedure and or mode of doing a thing, it's not for

a party to choose the way and manner to do that thing, that

provision he said, must be complied with. He cited DIN V.

ATTORNEY GENERAL OF THE FEDERATION (1988) 2

NSCC 449 AT 498 LINE 7 - 10; BROAD BANK NIGERIA

LTD V. OLAYIWOLA & SONS (2001) 6 NWLR (PT. 710)

P. 742 AT 758 PARA G-H.

He submitted where the word "shall" is used in a statute,

which is an act or rule of Court, it commands an obligation

and not mere directive. Counsel relied on OGIDI V. STATE

(2005) NWLR (PT. 918) 286 AT 327 PARAS C - G;

ONICHE v. ODULUWA (2006)

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6 NWLR (PT. 975) 65 AT 89 PARAS A - E AND D.E.R.N

LTD V. TRANS INT'L BANK LTD (2008) 18 NWLR (PT.

1119) PAGE 389 AT 430 PARA B.

Learned counsel cited again the case of BROAD BANK NIG.

LTD V. OLAYIWOLA (Supra) to submit that the

competence of the suit hinged on the validity of the Writ of

Summon.

It is also submitted that the failure of the Registrar to sign

or issue the Writ is a fundamental defect and not a mere

irregularity or dereliction of duty that can be waived or

cured by the payment of filing fees or defendants

appearance. It goes to the jurisdiction of the Court. He

placed reliance on ODU'A INVESTMENT V. TALABI (1997)

7 SCNJ T. 617 LINE 30-40. Counsel urged us to resolve

the issue in his favour and allow the appeal.

On their part, the 1st and 2nd Respondents' counsel

submitted that the Respondents substantially complied with

the provisions of Order 3, Rule 3, High Court (Civil

Procedure) Rules 2007, as the Writ of Summons filed in

the Registry was in form 1. That Order 6 Rules 2(1) and

(2) of the Kaduna State High Court Civil Procedure

Rules, 2007 clearly stated the duty of the Registrar to sign

and seal the Writ before issuance and

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that of the Counsel in sub-rule 3 of the same Rules of

Court is to sign each copy, which was done by the

plaintiffs/Respondents counsel and that, that means they

have perform their part and cannot be punished for the

failure of the Registrar to do its part. He relied on BROAD

BANK OF NIG LTD v. ALH. S. OLAYIWOLA & SON LTD

& 1 OR (2005) 1 S.C.N.J. P. 51 AT 63 - 64. He thus

submitted that the non-compliance by the Registrar of the

lower Court is not sufficient enough to nullify the

proceedings at the lower court but defect curable. He cited

STEEL BELL (NIG,) LTD V. GOVERNMENT OF CROSS

RIVER STATE (1996) 2 NWLR (PT. 438).

He argued that the inadvertent act of the court official in

failing to endorse on the court process the stamp of the

court and signing by the Court Registrar can be treated as

irregularity and will not vitiate or invalidate the process

filed in court by virtue of Order 5 Rule 1(2) of the

Kaduna State High Court (Civil Procedure) Rules,

2007, which provide thus:

"Where at any stage in the course of or in connection with

any proceedings there has been a failure to comply with the

requirements as to time, place, manner, or form

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the failure shall be treated as an irregularity and may not

nullify such step taken in the proceedings. The court may

give any direction as it think fit to regularize such step".

He cited the case of CENTRAL BANK OF NIGERIA V.

MR. OLASUPO ADEDEJI & 11 ORS (2004) 13 NWLR (PT.

890) P.226 AT 243 - 244 PARAS H - C where the court

relied on order 3 Rule 1(1) of the Federal High Court

(Civil Procedure) Rules 2000 which is almost in pari

materia with Order 5 Rule 1(2) of the Kaduna State

High Court (Civil Procedure) Rules 2007 to treat non

compliance with Order 7 Rule 8 of the same Rule as a

mere irregularity.

He argued that the phrase "left undone" and the "the

failure shall be treated as an irregularity" in this rule

clearly shows that a matter should not be set aside based

on the act left undone once it does not touch on the merit

of the case. He relied on CBN V. MR, OLASUPO

ADEDEJI (Supra). He argued that a party who has paid all

the assessed filing fees and service of his document cannot

be punished for dereliction of duty by the Court Registrar.

The cases of S.B.M. SERVICES (NIG) LTD V. OKON

(2004) ALL FWLR (PT. 230) P. 1115 AT 1132 PARAS E - G

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and NDIC V. AKAHALL & SONS CO. LTD (2004) 6

NWLR (PT. 869) P.245A 278 PARAS D - F were relied upon.

It is also submitted that it is not every irregularity that

automatically nullifies the entire proceeding, particularly

where the irregularity did not in any way materially affect

the merit of the case, or occasion a miscarriage of justice or

where in any case, it is much too late in the day for a party

to complain about such irregularity. He cited in support the

case of KOSSEN (NG.) LTD V. SAVANNAH BANK OF

NIG LTD (1995) 9 NWLR (PT. 420) 439 AT 451 - 452. It is

his view that to set aside the writ as prayed by the

Applicant/Appellant will amount to injustice to the

Plaintiffs/Respondents for an omission which they are not

responsible. He therefore prayed the Court to treat the

omission of the Registrar as a mere irregularity that did not

render the writ of summons a nullity as same is curable.

On whether the Appellant Learned counsel waived his right

to complain because of the steps he has taken with respect

to this writ, it is argued that the option open to a Defendant

who intends to object to the regularity of proceedings by

which a plaintiff

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seeks to compel his appearance may be by leave of court to

enter a conditional appearance or an under protest, and

then apply to the court to set aside the plaintiff's

proceeding or he or she may without entering an

appearance move to set aside the writ. He relied on

ADEWUNMI V. A.G. ONDO STATE (1996) 8 NWLR (PT.

464) 73 AT 85 - 86.

It is also submitted that it has been established by plethora

of judicial authorities that the appropriate time at which a

party to proceedings should raise an objection based on

procedural irregularity is at the commencement of the

proceedings or at the time when the irregularity arises. He

cited JOHNSON V. ADEREMI & ORS 13 WACA 297;

ASHIRU NOIBI v. FIKOLATI & ANOR (1987) 1 NWLR

(PT. 52) 619 AT 632. He contended further that the

implication of entering an unconditional appearance is that

the defendant wanted and intended to contest the case of

the plaintiffs. He relied on TOTAL INT. LTD V.

AWOGBORO (1994) 4 NWLR (PT. 337) 147 AT 166.

It is his view that having regard to the facts of this case, it

is safe to reach the conclusion that the Defendant/Appellant

must be taken to have submitted itself to the

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jurisdiction of the lower Court and relied on case of

TOZIER V. HAWKINS (1885) 15 Q.B.D 650 as an

authority for the proposition that a party appearing

unconditionally is deemed to have waived any objection to

the jurisdiction of the Court. That the writ of summons was

filed on 25/9/2008 and the Appellant filed memorandum of

appearance on 23/10/2008. That the appellant fully

participated in the hearing of the 1st and 2nd Respondents

application for interlocutory injunction and had filed

counter affidavit to it before filing the motion to set aside

the writ on 19/1/12009, thus unequivocally manifesting

their intention to defend the action. He maintained that the

Appellant showed that any objection to the jurisdiction of

the Court had either been waived or had never been

entertained. He cited BARZASI V. VISIONI (1973) NMLR

1 AT 8.

Counsel argued that while the Appellant was served with

the writ he entered appearance without protest or

conditionally and participated in the proceedings up to the

pre-trial stage, he referred to pages 92-93, 129-132 and

173 of the record and that by these acts the Appellant has

waived his right to object to any irregularity

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emanating from the earlier proceedings.

He placed reliance on SAUDE V. ABDULLAH (1989) 4

NWLR (PT. 116) 387 AT 432 and AUGWUANYI V.

NICON INSURANCE PLC (2004) NWLR (PT. 897) AT

639 PARAS C - E. that a party cannot be heard to later

complain of an irregularity to which he has acquiesced and

cited NOIBI V. FIKOLATI (1987) NWLR (PT. 52) 619.

Learned counsel finally submitted that the Appellant’s

approach is on technicality of procedure which our Court

today frown at. He relied on EGOLUM V. OBASANJO

(1999) 7 NWLR (PT. 611) P. 35 AT 413; and

AKPKINIOVO V. AGAS (2004) NWLR (PT. 881) P. 394

AT 422 - 423 PARAS H - B. The Court was urged to

resolve the issue in favour of the Respondents against the

Appellant.

It is now settled principle of practice and procedure that

Rules of Court are meant to be obeyed and followed

because they regulate matters in Court and make for the

smooth administration of justice. The Rules must be

observed and it is the duty of the Court to give effect to the

rules and practice of a Court and parties cannot by consent

or acquiescence ignore the rules. See KACHIA V. YAZID

(2001) 17 NWLR (PT. 742) p. 88 AND F.C.E., OYO V.

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AKINYEMI (2008) 15 NWLR (PT. 1109) P. 21 AT 48.

In the instant case, the grieve of the Appellant is that the

writ of summons by which the 1st and 2nd Respondents

commenced this action at the trial Court shows that there

is non-compliance with Order 3 Rule 3 and Order 6 Rule

2(1) of the Kaduna State High Court (Civil Procedure

Rules) 2007.

The above cited provisions are for ease of reference

reproduced hereunder:

Order 3 Rule 3 provide thus:

"Except in the cases, in which any different forms are

in these rules, the writ of summons shall be in form 1

with such modifications or variation as circumstances

may require".

Order 6 Rule 2(1) provides that:

"Issue of an originating process takes place upon its

being signed by the Registrar or other officer of the

Court authorized to sign the writ"

The contention of the Appellant is that the writ of summons

was not dated, signed nor sealed by the court Registrar or

any officer of the Court duly authorized as required by the

rules; and submitted that this defect is fundamental and

therefore rendered the writ invalid and ought to be set

aside. That this, the parties cannot waive because

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it cannot be regarded as a mere irregularity as held by the

lower Court. Learned counsel relied on Order 5 Rule 1 of

the Kaduna State High Court (Civil Procedure) 2007

that provides:

"Where in the beginning or purporting to begin any

proceeding there has been failure to comply with

requirement of these rules, the failure shall nullify the

proceeding�.

From the record before this Court as conceded by the 1st

and 2nd Respondents its writ of Summons though assessed

for payment and were duly charged and paid but was not

signed nor stamped by the Court's officer(s) authorized to

do so. Therefore there is non-compliance with the rule

hence irregularity in procedure. As stated earlier, rules of

Court are purposely made to be obeyed and followed,

therefore all procedure set by the rules must be complied

with. However, where in the course of following the rules

some errors or mistakes are committed or omitted, such

error or mistakes would not out rightly render the

proceedings a nullity.

Depending on the circumstance of each particular case,

where the noncompliance has occasioned miscarriage of

justice or where the right of the adverse party will

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be affected, the Court shall not treat the non-compliance as

a mere irregularity and as such mandate the rules to be

followed or nullify the proceedings as the case may be. But

in a situation where it has not occasioned miscarriage of

justice it shall be treated as a mere irregularity and should

not vitiate the proceedings. This is because all rules of

Court are made in aid of justice and that being so, the

interest of justice will have to be given priority over any

rule, compliance of which will lead to outright injustice.

The Rules are not sine quo non in the determination of a

case and therefore not immutable. See ONI V. FAYEMI

(2008) 8 NWLR (PT. 1089) 408.

In ABUBAKAR V. YAR'ADUA (2008) 4 NWLR (PT. 1078)

P. 465 AT 510 PARAS G - H, the Supreme Court held

inter alia that:

It is not every non-compliance with rules of court that

vitiate the proceedings or do harm to the party in

default. As a matter of our adjectival law, and by the

state of the non-compliance rules, the Courts will

regard certain acts or conduct of non-compliance as

mere irregularity which could be waived in the

interest of justice. Again, as a matter of our adjectival

law,

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non-compliance rules in their aggregate content

point more to this trend than the reverse position of a

punitive nature against the non-complying party. The

state of the law is more in favour of forgiving non-

compliance with rules of Court, particularly where

such noncompliance, if waived, will be in the interest

of justice."

The Appellant's counsel argued further that by the use of

the word "shall" in Order 5 Rule 1 above, connotes a

command of an obligation and cited many authorities on

that. It is not in every case that the word 'shall' commands

obligation because it depends in the context in which it was

used. The word (shall) may be interpreted as mandatory,

obligatory or merely directory depending on its contextual

usage. See OLANIYA V. OYEWOLE (2008) 5 NWLR (PT.

1079) P. 114 AT 437. In RE UBA (2008) 7 NWLR (PT.

1085) 70 AT 81 PARAS E - H. The Supreme Court per

Tabai, JSC stated the law as follows:

"Rules of Court remain rules of Court and cannot be

accorded a status as immutable as statutory

provisions.

As mandatory rules of Court are not as sacrosanct as

mandatory statutory provisions, Courts of justice are

more inclined to regard as

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directory or permissive any provision in the rules of

Court which appears mandatory, if it is implicit in the

provision in question or if a combination of other

provisions with the provision in question so dictates

or if the ends of justice demands that it be so

construed. See KATTO v. CBN (1991) 9 NWLR (PT.

214) 126".

In the instant case, the default, mistake or error that

resulted in the non-compliance with the rules was that of

the Court'��s Registry and not the fault of the 1st and 2nd

Respondents. The Respondents complied with all the rules

as regard initiation of a suit but the Court on its own part

mistakenly omitted to sign and seat the writ. I do not think

that it will be fair to visit the sin of the Registrar on that of

the 1st and 2nd Respondents.

See ODOFIN V. ONI (2001) 17 NWLR (PT. 701) P. 488

AT 501.

Order 5 Rule 1(2) of the High Court (Civil Procedure)

Rule 2007 provides:

"Where at any stage in the course of or in connection

with any proceedings there has by reason of any thing

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

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irregularity and may not nullify such steps taken in

the proceeding. The Court may give any direction as it

thinks fit to regularize such steps".

See IBIECHEFU V. GOV. IMO STATE (2008) 14 NWLR

(PT. 1106) P.22 IGWE UZUR V. ONWUZOR (2007) 4

NWLR (PT. 1024) P. 303 AT 315.

Having regard to the fact that the Appellant partook in the

proceedings and was not misled in any way to have caused

or occasioned injustice on him. I am in agreement with the

decision of the learned trial judge that Courts are instituted

to do justice and it will be abandonment of the Courts

responsibility to succumb to a blackmail of a counsel to

take backward step in the administration of substantial

justice by allowing counsel to rely on technicality to shore

up their case. See OKOYE V. NWULU (2001) 11 NWIR

(PT. 724) 362 AT 366. The heydays of technicality are

now over because the weight of judicial authorities today

shifted from undue reliance on technicalities to doing

substantial justice even-handedly to the parties to the case

See AKPKINIOVO V. AGAS (2004) NWLR (PT 881) 39a

AT 422 423; and EGOLUM v. OBASANJO (SUPRA).

��I therefore resolved this sole issue against the

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Appellant in favour of the 1st and 2nd Respondents.

On the whole I find no merit in this appeal and is hereby

dismissed.

The Ruling of the lower Court delivered on the 4th day of

January, 2009 is hereby affirmed. I award a cost of

N50,000.00 (Fifty Thousand Naira only) in favour of the 1st

and 2nd Respondents against the Appellant.

ABDU ABOKI, J.C.A.: I have the opportunity of reading the

judgment of my learned brother, UWANI MUSA ABBA

AJI, JCA, and I agree with the conclusion that the appeal be

dismissed. I too affirmed the Ruling of the Kaduna State

High Court in Suit No. KD/KAD/418/2008, delivered on the

4th day of January, 2009.

I abide by the consequential order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I

have had the privilege of reading before now the leading

judgment delivered by my learned brother, Uwani Musa

Abba Aji, JCA. His Lordship has ably considered and

resolved the issues in contention in this appeal. I agree

with the reasoning and abide by the conclusions reached

therein.

��This appeal turns on the effect of non-compliance with

the provision of

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Order 6 Rule 2(1) of the High Court of Kaduna State

Civil Procedure Rules 2007 which states that "issue of an

originating process takes place upon its being signed by the

Registrar or other officer of the Court authorized to sign

the writ". The question before the lower Court was - where

the Registrar or other officer authorized by the Court fails

to sign a writ of summons, does it amount to a fundamental

defect that nullifies the entire proceedings of the Court or a

procedural irregularity that can be overlooked.

Now, it is trite that Rules of Court are part of the

machinery of justice made by the Courts to regulate their

proceedings. They are designed to assist in obtaining

justice with ease, certainty and dispatch. They partake of

the nature of subsidiary legislation by virtue of Section 18

(1) of the Interpretation Act and consequently have the

force of law.

Accordingly, as a general rule, Rules of Court must be

obeyed by litigants and they are binding on all the parties

before the Court - Aromolaran v. Oladele (1990) 7 NMLR

(Pt 162) 359, Duke v. Akpabuyo Local Government

(2005) 19 NMLR (Pt 959) 130, owners of the MV

"Arabella" v. Nigeria

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Agricultural Insurance Corp (2008) 11 NWLR (Pt

1097) 182, Agip (Nig) Ltd v. Agip Petroli International &

Ors (2010) 5 NWLR (Pt 1187) 348.

It must, however, be understood that not every non-

compliance with the Rules of Court is necessarily fatal to

the case of party or to the process filed by a party in a

matter. One of the most firmly established principle of

judicial adjudication is that the Rules of Court must never

be interpreted to defeat the course of justice and that

where the effect of a strict adherence to a provision of the

Rules of Court will hinder the Court from performing its

primary duty of doing substantial justice between parties to

a dispute, and. cause injustice, the Court must jettison the

provision in favour of the doing of substantial justice. This

principle has been consistently reiterated by the Supreme

Court over the years and a few instances will be mentioned

as examples. In UTC (Nig) Ltd v. Pamotei (1989) 2 NWLR

(Pt 103) 244, Belgore, JSC (as he then was) stated at

page 296F that:

"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

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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 my

mind, will be making the Courts slavish to the Rules. This

certainly is not the raison d'etre of the Rules of Court."

In Federal Government of Nigeria V. Zebra Energy Ltd

(2002) 18 NWLR (pt 798) 162 Belgore JSC (as he then

was) again stated at pages 204 - 205 thus:

"... Procedure is a guide to smoothen passage of suit; to

direct the parties what to do and to guide the Court to

arrive at the justice of a case... The Court shall never be

shackled by procedure; case is not made for procedure, it is

the other was round. Once the procedure employed has

brought into focus the issues the parties contest and there

is no miscarriage of justice it will not matter that the

procedure is not the correct one. Getting to the destination

is what is important; it does not matter the means used.

This Court will certainly not disturb a clear case of justice

between the parties by suo motu raising for the parties

procedural abnormalities ... what is relevant in a case of

this nature is the

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question of justice of the case."

In Fidelity Bank Plc V. Monye (2012) 10 NMLR (Pt 1307)

1, Adekeye, JSC at page 32 F-H made the point thus:

"Rules of court touch upon the administration of justice.

They are promulgated to regulate matters in court and to

assist parties in the presentation of their case within a

procedure made for the purpose of a fair and quick

dispensation of justice. The courts have leaned heavily on

the side of doing justice.... The rules must be understood as

made with that fundamental principle at the background.

Whatever the case may be in the court proceedings, the

rules are no more than an adjunct to the course of justice.

The court must never interprete a rule of court to defeat

access to justice which is guaranteed by the Constitution."

It is in this wise that the Supreme Court categorically

stated that any noncompliance with the Rules of Court is

prima facie an irregularity and not a ground for nullity,

unless such non-compliance amounts to a denial of natural

justice - Okoye v. Nigerian Construction Co Ltd (1991)

6 NWLR (Pt 199) 501, Famfa Oil Ltd vs. Attorney

General, Federation (2003) 9-10 SC 31. The drafters

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of the High Court (Civil Procedure) Rules of practically

every State, including Kaduna State recognize this

principle and have a provision in all the Rules of Court to

the effect that "where in beginning or purporting to begin

any proceedings or 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 of the Rules, whether in respect of time,

place, manner, form or content or in any other respect, the

failure may be treated as an irregularity and if so treated,

will not nullify the proceedings or any document, judgment

or order therein."

Speaking specifically on the procedure in the Rules of

Court guiding issuance of originating process, the Supreme

Court has held that it is purely an administrative matter of

the Court's Registry which does not involve a claimant or

plaintiff and that failure to sign an originating process by

the designated officer is a mere procedural irregularity

which cannot by fig of imagination be placed on the

shoulders of the claimant or plaintiff who has done all that

is necessary to file and commence the action -

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Saude V. Abdullahi (1989) 7 SC (Pt II) 116 and Famfa

Oil Ltd v. Attorney General, Federation supra.

The answer to the question that confronted the lower Court

in this matter, therefore, was that the non-compliance with

the provisions of Order 6 Rule 2(1) of the Rules of the

High Court of Kaduna State in the issuance of the writ of

summons was a mere procedural irregularity that did not

affect the validity of its proceedings.

The issue of non-compliance with Rules of the High Court

of Kaduna State raised by the counsel to the Appellant and

which culminated in this appeal was open display of the

unhealthy romance that the Counsel to the Appellant has

with the technicalities of the law. Unfortunately for

Counsel, the Courts are no longer enthralled by such

displays and are focused on the substance rather the

technicalities of the law. The Courts have shifted away from

the orthodox method of narrow technical approach to

justice and the weight of judicial opinion is now

predominantly in favour of the Court doing substantial

justice, as opposed to technical justice. This is because

technical justice, in reality, is not justice but a caricature of

it. It

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is justice in inverted commas and not justice synonymous

with the principles of equity and fair play. In the immortal

words of Oputa, JSC in Bello v. Oyo State (1986) 5 NWLR

(Pt 45) 826 at 886:

The picture of law and its technical rules triumphant and

justice prostrate may no doubt have its admirers. But the

spirit of justice does not reside in forms, formalities nor in

technicalities nor is the triumph of the administration of

justice to be found in successfully picking one's way

between pitfalls of technicality. Law and its technical rules

ought to be a handmaid to justice..."

The point was reiterated by Edozie, JSC in Buhari v.

Obasanjo (2003) 17 NWLR (Pt 850) 587 thus:

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.

W h e r e i t r e l i e s o n m e r e t e c h n i c a l i t y . . . o r

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 on."

The lower Court was thus on point when it flowed with the

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weight of judicial opinion and dismissed the application of

the Appellant. I find no merit in this appeal and I too

dismiss it accordingly. I affirm the Ruling of the High Court

of Kaduna State in suit No KDH/KAD/418/2008 delivered by

Honorable Justice Esther Inuwa on the 4th of February,

2009. I abide by the order on costs in the leading

judgment.

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Appearances:

No appearance For Appellant(s)

Ayodeji Olabode, Esq. with him, D.J. Mavah, Esq.for 1st and 2nd Respondents.

No appearance for the 3rd and 4th RespondentsFor Respondent(s)

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