IN THE HIGH COURT OF IMO STATE
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE
ON THE 6th DAY OF MAY, 2019
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.:- HAM/58M/2018
BETWEEN
- ALBERT DIALA
- INNOCENT C ANYANWU OPARA JUDGMENT CREDITORS/
RESPONDENTS
AND
- GOVERNOR OF IMO STATE
- ATTORNEY GENERAL OF IMO STATE JUDGMENT DEBTORS
- AHIAZU MBAISE LOCAL GOVERNEMNT AREA
- DESMOND DIALA JUDGMENT DEBTOR/APPLICANT
- HRH EZE CHIDUME OKORO (CHAIRMAN OWERRI ZONE JUDGMENT DEBTOR/
- COUNCIL OF NDI EZE IMO SATE) APPLICANT
RULING
This is a ruling on the two applications to set aside the judgment of this court separately brought by the 4th Defendant and 5th Defendant. The judgment of this court in suit NO: HAM/ 67/2016 was delivered on 26th day of March 2018.
On 21st May 2018, the 4th Defendant/Judgment Debtor/ Applicant filed Notice and Grounds of Appeal consisting of 3 grounds. Ground one of the said Notice of Appeal with the particulars is as follows:
GROUND 1 ERROR IN LAW
The Learned Trial Judge erred in law and acted ultra vires when he assumed jurisdiction to hear the case upon an originating process (Originating Summons) that was never issued by the Registrar of the Trial Court
PARTICULARS OF ERROR
- The Learned Trial Judge went ahead to hear the case on an Originating process (Originating Summons) not duly issued by the registrar of the Trial Court as reuired by law and delivered the judgment appealed against thereon, on the 26th day of March, 2018
- As against the provision of Order 6 Rule 2 of the Imo State High Court (Civil Procedure) Rules 2008, the Originating Summons was not signed or stamped by the Registrar of the High Court and therefore not issued.
Meanwhile the said 4th Defendant/ Judgment Debtor/Applicant had earlier on 13th April 2018 filed a Motion on Notice praying for the following:
- An Order of the Court extending the time within which the defendant/Applicant can apply to this court for an order setting aside the judgment of his Lordship, Hon. Justice I.M.Njaka. delivered on the 25th day of March, 2018
- An Order of this Honourable Court granting leave to the Defendant/Applicant to apply for an Order setting aside the judgment of His Lordship, Hon. justice I.M.Njaka delivered on the 25th day of March, 2018
- An Order of this Honourable Court setting aside the judgment of this Honourable Court in this suit as contained in the judgment of His Lordship, Hon. Justice I. M. Njaka, delivered on the 25th day of March, 2018.
- An Order of this Honourable Court upon setting aside the said judgment, striking out this suit for want of jurisdiction
- And for such further other order(s) as the Hoonourable Court may deem expedient to make in the circumstances.
The grounds upon which this application is hinged is provided as
- The Originating process in this suit (the originating summons dated the 28th day of May, 2014 and filed on the 6th day of June, 2014) was not signed by the registrar of this Honourable Court, having not been signed and sealed by him
- This Honurable Court erroneously assumed jurisdiction in this suit on the basis of the said Originating Summons and delivered judgment on 25/3/2018
- The proceedings and the attendant judgment in this suit are null and void.
The application is supported by 7 paragraphs affidavit deposed to by one IHEDIWA EMMANUELLA a litigation clerk in the law firm of Onyeneke Akachi & Co. She deposed to the effect that she has the consent and permission of the 4th Defendant/judgment debtor/Applicant to depose to the facts. She knows as a fact that the suit was commenced by an Originating Summons dated the 28th day of May 2014 and filed on the 6th day of June 2014. The instant application would have been brought earlier than now except that there was delay in obtaining certified copies of the judgment and the originating summons from the registry of this Honourable court. She was informed by A.U Onyeneke Esq, and she verily believed him that the said Originating Summons was neither signed nor sealed by the Registrar of this Honourable Court contrary to the express provision of the rules of this court. The Honourable Court erroneously assumed jurisdiction on the matter delivered judgment therein on the 25th day of March 2018. The judgment delivered by the court without jurisdiction is null and void and ought to be set aside and the originating Summons struck out. The failure of the Registrar to sign and seal the Originating Summons meant it was not issued, thereby deposing the court of the requisite jurisdiction to hear and determine the case. The Respondent will not be prejudiced if this application is granted. It will serve the utmost interest of justice and the rule of law for this application to be granted.
The counsel filed a written address and formulated issues for determination to with:
- Whether this court had jurisdiction to hear and determine this case on the basis of an origination(sic- Originating) process (Originating Summons) not signed and sealed by the Registrar
- Whether the judgment delivered by this Honourable Court in this suit on 25/3/2018 (sic – 26/3/2018) is not a nullity and ought to be set aside?
- Whether the trial Court can set aside it own final judgment.
On issue 1, it is submitted vehemently that this court lacked the jurisdictional competence to hear and determine this suit on the basis of an originating process (origination (sic) summons) not signed and sealed by the registrar. The counsel cited Order 6 Rule 2 of the Imo State High Court (Civil Procedure) rules 2017 which provides: “The Registrar shall sign and seal every originating process whereupon it shall be deemed to be issued”. And this is similar to Order 6 Rules 2 of Imo State High Court (Civil Procedure) rules 2008 which provides: “The Registrar shall sign and stamp every originating process whereupon it shall be deemed to be issued”.
According to the counsel, a cursory look at the originating process herein (the originating summons dated the 28th day of May 2014 and filed on the 6th day of June 2014) shows patently that it was neither signed nor sealed (stamped) by the Registrar.
He relied on EQUITY BANK OF NIGERIA LIMITED V. HALILCO NIGERIA LIMITED (2006) LPELR – 5611 (CA) – (2006) 7 NWLR (PT.980) 568 as to when court is competent to decide a matter brought before it
According to the counsel the word “shall” in Order 6 Rule 2 of the Rules of this Honourable Court is mandatory and admits of no exercise of discretion by the Registrar
The counsel went on to rely on ONUN OUT ECHU IGIRIGA V ELDER EFFIONG BASSEY & ORS (2013) LPELR – 20346 (CA) where according to him the Court of Appeal captured it thus I ratio 5 “The word shall in subsection is mandatory. The Registrar shall seal every originating process. The sealing of this originating process is a condition precedent. Where the Registrar fails to seal an originating process it robs the court of jurisdiction to entertain this unsealed writ … A writ issued without the Registrar’s seal is incompetent and cannot be cured”.
It is submitted that the fact that the Applicant participated in the proceedings will not cure the incompetence of the court to hear and determine the case. Relied on EQUITY BANK OF NIGERIA LIMITED V. HALILCO NIGERIA LIMITED Supra, where according to him, at Ratio 4, the Court at Appeal held: “The parties cannot by their acquiescence grant to the court the competence the law says it does not possess” See also UMANAH V. ATTAH (2006) 17 NWLR (PT.I009) 503.
On issue 2, it is submitted that the judgment delivered by this Honourable Court in this suit on 25/3/2018 is a nullity and ought to be set aside. Relied on EKANEM EKPO OTU V. ACB INTERNATIONAL BANK PLC & ANOR. (2008) LPELR – 2827 SC (2008) 3 WLR (PT.I073) 179 SC.
It is submitted that after setting aside the judgment, that suit should be struck out for total want of jurisdiction. Relied on EQUITY BANK OF NIGERIA LIMITED V. HALILCO NIGERIA LIMITED Supra, to the effect that where the court has no jurisdiction to entertain a case because the originating process is incompetent, the right order to make is one of striking out”.
On issue 3, it is submitted that a trial court can set aside its own final judgment in certain circumstances. The circumstances include when the court lack jurisdiction to have entertained the suit or when the judgment was fraudulently obtained.
It is submitted that the instant judgment was delivered when the court lacked the requisite jurisdiction to have entertained this instant suit. The above position has been established in several decided authorities of the appellate courts. Referred to ADEYEMI-BERO V. LAGOS STATE DEV. PROPERTY CORPORATION AN ANOR. (2012)LPELR-2016 15 (SC)
The court is urged to set aside its own judgment delivered in this instant suit for want of jurisdiction
The Plaintiffs/Judgment Creditors/Respondents filed 10 paragraphs counter affidavit depose to by Albert Diala, the 1st Plaintiff/Respondent. He deposed that he has the consent, authority and approval of the 2nd Plaintiff/Respondent to depose to this affidavit on their behalf. They filed this suit on 5/6/2014 at the High Court Owerri, Imo State and paid the necessary and requisite fees as assessed by the Court Registry.
They made available the required number of the copies of the originating process filed. They also made arrangement with the Bailiff of Court who would serve the process; he gave him his number to call him when the process filed got to his office ready for service. After some days, the bailiff called him to tell him that the process was ready, that he should be available to act as “pointer” to enable him to serve the human persons who are parties to the suit and this he did and service was effected.
The Applicant entered an unconditional appearance by filing all his processes, fought/defended the suit up to judgment without any remonstrance. It was surprising that about 18 days after the judgment of the Honourable Court, the Applicant brought the present application, praying the Honourable to set aside its judgment.
Their Solicitor, P. L. Osuagwu, Esq informed him and he verily believe him that the option left for the Applicant in this case is to appeal the judgment of the Honourable Court as the Court is functus officio; the Honourable Court lacks the jurisdiction to entertain the application; the applicant was indolent in bring the application and this application is contra Order 5, Rule 2 (1), which amounted to waiver by the Applicant.
It will be in the interest of justice to refuse the application and dismiss the same.
The counsel filed a written address and formulated issue for determination as:
Whether the proper step to be taken by the Applicant at the stage the court is functus officio, and given the Applicant’s indolence in raising the issue, is invoking the jurisdiction of the Honourable Court to set aside its judgment.
It is submitted that the proper step to be taken given the circumstances of this case, is not to invoke the jurisdiction of the Honoruable Court at this stage to set aside its judgment.
From the time the Applicant was served the originating summons to the time of hearing the case, the Applicant did not raise objection to the competence, vel non of the suit.
He referred to Order 5, Rule 2 (1) of the High Court (Civil Procedure) Rules, 2017 of Imo State which provides: An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”.
The Applicant together with other Defendants defended the suit to finality, without raising a finger in objection, awaiting the outcome.
It is submitted that the Applicant is estopped as he waived his right to raise the issue as required by the rules. The counsel referred to DR YUSUF MUSA NAGOGO VS CONGRESS FOR PROGRESSIVE CHANGE & 20RS. [2013] ALL FWLR (Pt 685) 272; 294 E -F,
It is submitted that the Defendants (more appropriately the Applicant as 4th Defendant) submitted to the jurisdiction of the Honourable Court and fought the suit to finality (judgment) without any remonstrance, awaiting the outcome of the suit to be in their favour, which turned otherwise, hence the present application by the 4th Defendant.
It is the counsel’s submission that the Honoruable Court should not bother itself by considering this misdirected application. The Honourable Court is functus officio – other constitutionally commended remedy avail the Applicant.
It is submitted that the Learned Counsel for the applicant made heavy weather of the decision of the Court of Appeal in ONUN OTU ECHU IGIRIGA VS ELDER EFFIONG BASSEY &. ORS [2013 LPELR – 2034 (CA) (HEREINAFTER CALLED “THE CROSS RIVER CASE”)]. According to the counsel, the said case which decision was based on the High Court (Civil Procedure) Rules, 2008 of Cross River State is distinguishable from the present suit.
According to the counsel, the Cross River Case relates to Chieftaincy tussle whereby the 1st Defendant assumed and performed the function of a Traditional Ruler, which was disputed by the Claimants in the suit. Whereas, the suit leading to this application to set aside this court’s judgment, in the main, related to the wrongful recognition accorded the Applicant during the pendency of a suit before the Aboh Mbaise High Court.
Again, in the Cross River Case, as soon the Defendants, were served the writ of summons and other processes, they wasted no time in entering a conditional appearance on 27/2/2009. On 10/3/2009, the Defenants followed up by filing a Motion on Notice praying the Honourable Court to set aside the writ on two alternative grounds. However, in the current case, the Defendants, a fortiori, the 4th Defendant (Applicant) entered an unconditional appearance, fought the suit vigorously with all the legal arsenals at their disposal (except raising an objection to the suit) to finality. They slept through till the end, only for the Applicant to be “rudely” awoken by the outcome of the case.
It is submitted that such belated “Realization” should not precipitate the Honourable Court into invoking its jurisdiction to set aside its judgment that will amount to sitting on appeal on its decision – a step deeply deprecated by law.
It is submitted that this application is an invitation by the Applicant to the Honourable Court to sit on appeal in its decision.
The counsel relied on ADMIRAL MURTALA NYAKO V ADAMAWA HOUSE OF ASSEMBLY [2018] ALL FWLR (Pt 921) 99; 130, to submit that the Applicant is luring the court to sit on appeal on its own judgment – a most dangerous, alluring bait.
According to the counsel, the Applicant had a great, but frittered opportunity to enter a “conditional appearance”, which the Supreme Court in CGG (NIG) LTD V AMINU [2015] ALL FWLR (PT 792) 1764;; 1774 – 1775 states to connote “an appearance under protest and usually means an appearance to object to the Court’s jurisdiction”.
The court is urged to decline jurisdiction to entertain this application which is strewn with booby traps with unforeseen consequence; and prayed that this application be dismissed.
On the part of the 5th Defendant/Judgment Debtor/Applicant filed a motion and prays for the following
- An Order of this Honourable Court granting leave to the 5th Defendant/Applicant to apply for an order of this Honourable Court setting aside the judgment of this Honorable court made on the 26th day of March 2018 in this suit.
- An order of this Honorable Court setting aside the judgment of this Honorable Court made on the 26th day of March 2018, in this suit.
- An order of this Honourable Court striking out this suit for non service of the originating process and other processes filed during the pendency of this suit on the 5th Defendant/Applicant.
- And for such further order(s) as this Honorable Court may deem fit to make in the circumstance.
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT are stated as:
- The 5th Defendant/Applicant in the suit was sued in his personal capacity and ought to be served the originating process and other processes in this suit personally.
- There was no order of substituted service granted in this suit by this Honourable court for service of the originating processes and other processes on the 5th Defendant/ Applicant.
- The 5th Defendant/Applicant was not served personally with any process or processes and the 5th Defendant/Applicant did not get knowledge of the pendency of this suit throughout the proceeding which automatically deprives the Court of Jurisdiction to hear this matter.
- The 5th Defendant! Applicant did not retain the service of any legal practitioner to represent him in this matter.
The application is supported by 7 paragraphs affidavit sworn to by HRH EZE CHIDUME OKORO, the 5th Defendant/Applicant in this suit. He deposed that by virtue of it he is very conversant with the facts of this matter. At the time of filing of this suit he was the chairman, Owerri Zone Council of Ndi Eze, Imo State.
He is not aware of the suit against him and could not have been aware as no court process in this suit was served on him.
He only got to know about the suit after judgment had been delivered for which reason he consulted his lawyer who informed him and he verily believed him that the processes in this suit ought to be served on him personally, having been sued in his personal name and capacity; no process in this suit has been served on him or brought to his knowledge since the pendency of this suit.
He was informed by A. U.ONYENEKE ESQ; counsel to the 4th Defendant and he verily believed him that on the day prior to the day the matter came up for hearing, Mrs. Amadi; counsel to the 1st Defendant announced appearance for the 1st Defendant and the court suo motu advised her to announce appearance for the 3rd and 5th Defendant since they were not represented in court; on the strength of that directive, she announced appearance for the 3rd Defendant and him; her representation throughout this proceeding was without his consent and permission.
It will be in the interest of justice to grant his prayers in this motion as the Plaintiff or other parties will not be prejudiced by granting this application.
The counsel filed a written address and formulated issue for determination as:
Whether the 5th Defendant/Applicant was validly served with the originating process or any other process in this suit.
It is submitted that it is an established principle of law that where non service is established, it goes to the root of depriving the court of jurisdiction to hear or even entertain the matter.
In the case of MARK V. EKE (2004) 5NWLR (PT 865)54, it was held; indeed, it is the service of the process on the adverse party that confers the Court with the competence and jurisdiction in the matter. Where there is failure to serve a party who deserves to be served, the party concerned is entitled to have the order which
emanated therefore to be set aside as a nullity.
It is submitted that the prayers contained in the motion paper are proper, based on the circumstance of this case.
Based on the averments in support of this application, it is the counsel’s submission that the prayers of the 5th Defendant/Applicant are proper and this Honourable Court is prayed to grant them in the interest of Justice.
On the 11th March 2019 when the application was heard the counsel to the Plaintiffs/Judgment Creditors/Respondents opted to oppose on point of law. It is submitted that the 5th Respondent was not sued in his personal capacity. He was sued in his capacity as the Chairman of Owerri Zone Council of Ndi eze. He referred to CBN v Edet (2015) AFWLR (Pt 768) 879 at 894. According to the counsel the essence of service is to bring the process filed to the attention of the parties sued to enable him to defend the matter.
The 5th Defendant was served and he was represented by a counsel up to judgment. Referred to RTPCN v Etim (2017) AFWLR (Pt 879) 598, Lagos State Traffic Management Authority V Johnson Esezobo (2015) ALFWLR (Pt 810) 1016 at 1111-1112. He urged the court to dismiss the application.
Resolution of matter
It is well settled elementary and fundamental principle of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. See SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC). In OGIDI & ORS v. OKOLI & ORS (2014) LPELR-22925(CA) it is stated:
“A party dissatisfied with a final decision of a court, can only appeal against it to an appellate court that has the jurisdiction to entertain the appeal. Such a party cannot come back to the court that gave the decision, urging it to reconsider the decision because it is contrary to law or wrong for any reason. The court on its part will lack the jurisdiction to judicially re-examine or reconsider its earlier decision on the issue. There is no part of the 1999 constitution and there is no statute or Rules giving the High Court the general jurisdiction to reconsider any of its earlier decision on the ground that it was wrong in law or fact. The 1999 constitution only provide S. 241(1) and 242 for appeals to this court from decisions of the High court.” Per AGIM,J.C.A. (Pp.27-28,paras.E-A)
However, in some established cases the party dissatisfied with the decision of the court has the option of either appealing against the judgment, or filling a separate action to have the judgment set aside, or returning to the same Court that delivered the judgment to have it set aside by motion on notice. Through so many judicial authorities, it has been established that the court has the inherent power to set aside its own decision where it is shown:
- That the Judgment is obtained by fraud or deceit either in the court or of one or more of the parties such a Judgment can be impeached or set aside by means of an action which may be brought without leave;
- That the Judgment is a nullity such as when the Court itself was not competent and a person affected by an order of Court which can property be described as a nullity is entitled ex debito justitiatiae to have it set aside;
- That the Court was misled into giving a Judgment under a mistaken belief that the Parties consented to it;
- That the Judgment was given without jurisdiction;
- That there was a failure to notify a party where service of any notice of a proceeding is required to be given;
- That the procedure adopted is such as to deprive the decision or Judgment of the character of legitimate adjudication;
- That the Judgment was obtained in the absence of one party, or in default of filing of statement of defence, or denial of fair hearing. See DAVIES & ORS V. ODOFIN & ORS (2017) LPELR-41871(CA); BARRISTER ORIKER JEV & ORS. V. IYORTOM & ORS. (2015) NWLR (PT. 1483) 484; CITEC INT’L ESTATE LTD & ORS V. FRANCIS & ORS (2014) LPELR-22314(SC); INEC V. ADC & ORS (2008) LPELR-4312(CA); ONWUKA V. OWOLEWA (2001) 7 NWLR (PT. 713) 695; IYOHO V. EFFIONG & ANOR (2007) LPELR-1580(SC).
The protest of the 4th and 5th Defendants in their separate applications can be accommodated under paragraphs (b), (d), (e) and (g) as mentioned above. I will start with the complaint of the 4th Defendant/Judgment Debtor.
What the 4th Defendant/judgment Debtor/Applicant is saying is that the Judgment of this court delivered on 26th March 2018 is a nullity; that it was given without jurisdiction on the ground that it failed to comply with Order 6 Rule 2 (1) of the High Court of Imo State (Civil Procedure) Rules 2017. In other words this submission is rooted on the provisions of Order 6 of the High Court of Imo State (Civil Procedure) Rules 2017 similar to the same Rule of 2008 in operation at the time the suit was filed. According to him, since the Originating Summons in this suit was not signed/sealed by the Registrar, this court lacked the jurisdiction ab initio to have entertained the suit, having done so the judgment emanating from same is a nullity and ought to be set aside and the suit struck out.
ORDER 6
ISSUE OF ORIGINATING PROCESS
- Originating Process shall be prepared by a Plaintiff or his Legal Practitioner, and shall be clearly printed on opaque A4 paper of good quality.
- (1) The Registrar shall sign and seal every Originating Process whereupon it shall be deemed to be issued.
(2) A Plaintiff or his Legal Practitioner shall, on presenting any Originating Process for signing and sealing, leave with the Registrar as many copies of the process as there are Defendants to be served and one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a Plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
- The Registrar shall after signing and sealing an Originating Process, file it and note on it the date of filing and the number of copies supplied by a Plaintiff or his Legal Practitioner for service on the Defendants. The Registrar shall then make an entry of the filing in the cause book and identify the action with a suit number that may comprise abbreviation of the Judicial Di vision, a chronological number and the year of filing.
- The Registrar shall promptly arrange for personal service on each Defendant of a copy of the Originating Process and accompanying documents duly certified as provided by Rule 2 (3) of this Order.
- The Originating Process in probate actions shall be accompanied by an affidavit sworn to by a Plaintiff or one of several Plaintiffs verifying the contents of the process.
- (1) The life span of every Originating Process shall be six ( 6)
months.
The Applicant in support of his application has cited and relied on IGIRIGA V. BASSEY & ORS (2013) LPELR-20346(CA) where the Court of Appeal stated:
“Order 8 Rule 2(1) provides as follows: “2(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.” The Registrar shall seal every originating process whereupon it shall be deemed to be issued. The word shall in this subsection is mandatory. The Registrar shall seal every originating process. The sealing of this originating process is a condition precedent. Where the Registrar fails to seal an originating process it robs the Court of jurisdiction to entertain this unsealed writ. It is even more important for the Registrar to seal the process as it is, an originating process. All the Sub-Sections of Order 8 are mandatory. A writ issued without the Registrar’s seal is incompetent and cannot be cured.
The Hon Court of Appeal has in the very recent case of OSHIOMHOLE & ORS v. FULANI & ORS (2019) LPELR-46882(CA) maintained this stand when it held:
“By Order 6, Rule 2 (1) of the Kwara State High Court (Civil Procedure) Rules 2005 (Supra): “The Registrar shall seal every originating process where upon it shall be deemed to be issued.” It is trite, that the duty of the Registrar of the Court to seal an originating process, such as an Originating Summons (Motion) or writ of summons is a fundamental requirement of the law. Thus, any failure by the registrar to seal an originating process, such as the originating summons, is not a mere irregularity. Indeed, it is a condition precedent that foists jurisdiction upon the Court. As such, such defect is so crucial that it renders the Court devoid of jurisdiction to determine the action. See IGIRIGA VS. BASSEY (2013) LPELR – CA/C/174/2009 @ 17 PARAGRAPHS C – F.
These decisions are later in time but contrary to some earlier decisions of the Court of Appeal as it relates to the failure of the Registrar or official of the court to perform its part in the issuance of an originating process.
In STATE INDEPENDENT ELECTORAL COMMISSION, EKITI STATE V. NCP (2008) LPELR 4980CA one of the issues was: Whether failure of a registrar to sign an originating summons will affect its validity. Permit me to quote at length the finding of the court. The court held:
“The issue to be addressed here is whether or not the fact that the registrar of Court did not sign the Originating summons constitutes an incurable irregularity that invalidates the summons or renders it a nullity. Put another way, whether the non-signing of the summons by the Registrar or other officer duly authorised in breach of Order 6 Rule 8 of the Rules of Court rendered the process null and void or merely irregular. In this regard, Order 6 Rule 8 of the High Court (Civil Procedure) Rules of Ondo State, 1987 applicable to Ekiti State provides as follows: “Issue of an originating summons takes place upon it being signed by the Registrar or other officer of the Court duly authorized to sign summonses.” It is thus clear that an originating summons cannot be said to have been properly issued unless it has been duly signed by the Registrar as prescribed under the Rules. In the instant case, it is not in dispute that there is no signature of the Registrar on the originating summons. It is therefore, apparent that, this is in contravention of the provisions of the said Order 6 Rule 8 of the High Court (Civil Procedure) Rules, 1987. Nonetheless, the real question for determination is the effect of this error of the non-signing of the originating summons. The trial Court, when confronted with this issue in the preliminary objection held as follows at pages 63 to 64 of the record: “I agreed (sic) that it is well settled law that breach of a rule of practice can only render a proceeding irregular and not a nullity. In any of the forms prescribed in Order 6 Rule 2, there is no column for the Registrar or any other official of the Court duly authorized to sign. Therefore, the plaintiff could not be blamed for failure of the Registrar or any of the officials of the Court to sign the originating summons issued in this case. In the case of Alawode v. Semoh (1959) 4 FSC page 29; (1959) SCNLR 91 it was held that the delay in the issue of a writ is all administrative matter which did not concern a plaintiff who has paid the necessary fees with his application and particulars of claim. I am of the opinion that the reasoning applies to the failure of the Registrar to sign this originating summons. The plaintiff in this case having fulfilled their part of the procedural requirement, it is clearly no concern of theirs that the Registrar has failed to comply with the Rules as prescribed. See Alhaji Daim Saude (supra). The preliminary objection in my humble view lacks merit and it is hereby dismissed.” Indeed, that is the position of the law in relation to infractions against Rules of Court, which go to procedure and therefore amount to no more than irregularities that do not touch on the substance of the case. The fact that the summons, which was duly filed after due payment of appropriately assessed fees, was not signed by the Registrar or other officer duly authorised, does not constitute an incurable irregularity and does not render the process a nullity as the originating summons could have been rectified quite easily at such initial stage of the proceedings by the Registrar or other officer signing same as required by the rules. Any non-compliance with Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of justice. See Okoye v. Nigeria Construction Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. In Famfa Oil v. A-G., Federation (supra) cited by learned counsel for the respondent, Belgore, J.S.C, (as he then was), put it quite aptly when he said thus at page 467 of the report: “There is no dispute that the appellant went to the Federal High Court, Abuja Division, to take out an originating summons. He paid all the fees and signed all the papers. The issuance of the summons, under the rules, should be completed by the judge, sitting in chambers, signing it. The plaintiff taking out originating summons deals with Court officials, registrars and not with the judge. The Registrar is to take the summons to the judge in chambers to sign. It is an administrative affair. The plaintiff in such situation has no supervisory power over the process leading from appellant as plaintiff did all he must do to take out the originating summons. The registrar instead of taking the summons to the judge in chambers to sign, cancelled the word “Judge” and superimposed his own signature. Whose failure is this? Certainly the appellant had no hand in this error and should not be visited on it. There is no doubting the fact that the respondent, as plaintiff in the originating summons, duly initiated the action as prescribed by the Rules. The plaintiff did all that was required of it by law to commence the action. The plaintiff’s originating summons was duly prepared by it and delivered to the Registrar in the usual way for the assessment of the Court fees payable. It was duly assessed by the Registrar and the necessary fees were fully paid. It is also not in dispute that the plaintiff did comply with all that was required of it by law and the rules of Court to commence or initiate its action appropriately.The point must be made that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for the assessment of the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as the signing of the relevant process or the writ of summons or the originating process by a judge or other officer empowered by law so to sign are entirely the domestic affairs of the Court and its staff. A plaintiff may not, in the interest of justice, be unduly penalised for the mistakes or oversight of the Court and its staff in connection with such internal matters, particularly where no miscarriage of justice, as in the present case, is occasion. See Famfa Oil Ltd. v. A.-G., Federation (supra); Alawode v. Semoh (1959) SCNLR 91. It is inconceivable that in the circumstances of this case, there has been a denial of fair hearing or that any miscarriage of justice has resulted to the appellant. Courts have since shifted away from the narrow technical approach to justice and now pursue the course of substantial justice. Accordingly, Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, Courts are admonished to ignore mere technicalities in order to do substantial justice. See Consortium M.C. v. NE.PA. (1992) 6 NWLR (Pt. 246) 132; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828; Okonjo v. Dr. Orije & Co. (1985) 10 SC 267. The Courts will not insist on strict compliance with any particular rules of Court if such strict application would inflict outright injustice. Whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. See Saleh v. Monguno (2006) 7 SCNJ 236; (2006) 15 NWLR (Pt.1001) 26. Rules of Court, as for as the conduct of proceedings is concerned, are generally binding on the parties and the Court and a party would be allowed to complain of a procedural irregularity on appeal if, inter alia, it can be shown that it materially affected the merits of the case or that he suffered a miscarriage of justice by reason of such irregularity in the proceeding. See Maja v. Samouris (2002) 3 SCNJ 29; (2002) 7 NWLR (Pt.765) 78. However, irregularities which derive from the breach of rules of procedure that do not, by themselves, occasion a miscarriage of justice, do not generally render proceedings a nullity. Nalsa & Team Associates v. NNPC (1991) 11 SCNJ 51; (1991) 8 NWLR (Pt.212) 652. In my view, the fact that the originating summons was not signed by the Registrar or other officer duly authorised in that regard is a technicality that should not be allowed to defeat the cause of justice in this case, particularly when the Registrar could have been quite early directed to sign same in order to regularise the process.” Per SANKEY ,J.C.A ( Pp. 9-16, paras. B-C )
In a similar situation in DAVANDY FINANCE AND SECURITIES LTD & ORS V. AKI & ORS [2015)LPELR 24495 one of the issues was whether entering of endorsement on a writ is the duty of the court registrar. The court held:
“As regards the failure to endorse the writ, it is my view that it is the registrar of the Court who has the responsibility of entering the required endorsement on the writ. The responsibility of a plaintiff’s counsel is to complete the relevant form (forms 1, 2, 3 or 4 which do not bear the endorsement) and pay the assessed fee therefor. Once he does this, his duty ends and the registrar’s duty which includes entering the required endorsement begins. Where the registrar fails to make the endorsement, a plaintiff cannot be punished for the failure. I draw strength for this conclusion from the following cases, BROAD BANK OF NIG LTD V. ALHAJI S. OLAYIWOLA & SONS LIMITED (2005) 3 NWLR (912) 434, 457, OLATUNBOSUN V. ANNENIH (2009) 15 NWLR (1165) 560, 571 AND PANALPINA WORLD TRANSPORT HOLDING AG. V. CEDDI CORPORATION LIMITED (2012) 2 NWLR (1285) 465, 495.” Per EKANEM ,J.C.A ( Pp. 18-19, paras. D-A )
In THE REGISTERED INCORPORATED TRUSTEES TOTAL COOPERATIVE THRIFT & CREDIT SOCIETY & ANOR v. MAZI OBI ADINDU (2011) LPELR-5022(CA) one of the issues was non compliance with Rule 3:
“3. The registrar shall after sealing an originating process, file it and note on it the date of filing and the number of copies supplied by a claimant or his Legal Practitioner for service on the defendants. The Registrar shall then make an entry of the filing in the cause book and identify the action
The court opined:
“The duty to issue writ of summons is not that of the claimant but the court, so where the claimant files his necessary papers and paid the appropriate fees, the rest is for the court to conclude. See Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt.146) 551 at 560. The failure to reflect a suit number on the copies of the originating processes served on the appellants is indeed an omission on the part of the registry. It will be unfair to hold the claimant responsible for the omission or negligence of the registry when he has done what the law requires of him to commence an action.See Dasofunjo v. Oni (1966) 2 All NLR 291, Duke v. Akpabuyo Local Govt. (2005) 12 SC (Pt.1) 1.
The Supreme Court has also had course to take a stance on the effect where the Originating Process was/is not sealed or signed by the Registrar. In ANYANWOKO V. OKOYE & 4 ORS (2010) 1 S.C (PT.11) 30; (2010) 5 NWLR (PT. 1188) 497; (2010) ALL FWLR (PT. 515)214 the Court per Hon Justice F.F. Tabai JSC stated:
With respect to the first issue, the first ground of the objection is that the Summons was not signed by the Registrar of the Federal Capital Territory High Court as required by Order 6, Rule 8 of the Rules of that court and that by reason of the aforesaid non-signing no summons was, in law, issued.— It is not contested that the Originating Summons was not signed by the Registrar of the court as enjoined by Order 6, Rule 8 of the Rules of the Court and therefore a breach of the Rules. What, however, is the legal effect of this breach? On this question, the Court of Appeal, Per Muhammad JSC (as he then was) at pages 93-94 of the record said:
“On the issue of non-signing of the Summons by the registrar of the Lower Court or any official thereof, I agree with the submission of the learned SAN for the 1st – 4th Respondents and the learned trial Judge that it is the duty of the Court and not that of the Plaintiffs/Respondents. It is a lapse on the side of the Registrar of the court below and not that of the Plaintiffs/Respondents. The requirement of Order 6, Rule 8 of the Rules is that an Originating Summons is issued upon its being signed by the Registrar or other officer of the court duly authorized to sign summons. The position of the law is very clear that where there is such non-compliance with the rules of procedure which merely regulate the exercise of jurisdiction conferred on a court by a statute, such non-compliance amounts only to a mere irregularity and has nothing to do with the jurisdiction of that court.”
I agree entirely with the above opinion of the court below.
—-It is untenable therefore for the Appellant to contend that the breach of the provision of Order 6, Rule of the Rules of court robbed the court of any jurisdiction. The jurisdiction of a court donated either by the constitution or by statute remains unaffected by breaches of rules of court. The sustained challenges of this issue of jurisdiction founded on the breach of Order 6, rule 6 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the court and even counsel for the parties”
“It occurs to me that the issue of non-signing of the originating summons by the Registrar of the trial court or an officer of that court duly authorised to sign same is a mere lapse on the side of the Registrar of the trial court. It is a non-compliance with the court Rules of Procedure which regulate the exercise of jurisdiction conferred on a court by a statute. It has nothing to do with the jurisdiction of that court. See: Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39.” Per J. A. FABIYI, JSC
“In the area of failure to sign the originating summons contrary to Order 6 Rule 8 of the Federal Capital Territory High Court Rule 1989, it is settled that a matter is only before the court when it is properly filed in the Registry and after payment of the necessary filing fees. The court will not make a practice of penalizing a litigant for the mistake or omission of court officials in the Registry except and only instances where the mistake was instigated, encouraged and condoned by the litigant. Generally, rules of court are meant to regulate matters in court and help parties in the presentation of their case within a procedure made for the purpose of a fair and quick trial Rules of court are meant to be obeyed as strict compliance with the Rules makes for quicker administration of justice — It is a misconception to hold that non-compliance with Order 6 Rule 8 of the Rules of Court will go to the root of this matter and deprive the court of its jurisdiction.” Per O. O. ADEKEYE, JSC
Earlier in the case of FAMFA OIL LIMITED V ATTORNEY-GENERAL OF THE FEDERATION & ANOR. (2003) LPELR-SC.305/2002; (2003) 18 NWLR (PT.852)453; (2003) 9-10 S.C. 31 one of the issues at the Supreme Court was “Whether or not the fact that it was the Registrar and not the Judge who signed the Originating Summons constitutes an incurable irregularity which invalidates the said summons or render it a nullity.
The court stated:
“There is no dispute that the appellant went to Federal High Court, Abuja Division, to take out an Originating Summons. He paid all the fees and filed all the papers. The issuance of the summons, under the Rules, should be completed by the judge, sitting in chambers, signing it. The plaintiff taking out Originating Summons deals with court officials, registrars, and not with the Judge. The Registrar is to take the summons to the judge in chambers to sign. It is an administrative affair. The plaintiff in such a situation has no supevisory power over the process leading from the registrar to the Judge in chambers. In the instant case, the plaintiff as appellant did all he must do to take out the Originating Summons. The registrar, instead of taking the summons to the Judge in chambers to sign, canceled the printed word “Judge” and superimposed his own signature. Whose failure is this? Certainly the appellant had no hand in this error and should not be visited on it. Per Belgore JSC
The applicant is not the one to take the summons to the judge, this is a purely administrative matter of the court’s registry which does not involve the applicant. Thus, failure of the Judge to sign the Originating Summons is mere procedural irregularity and it cannot by fig of imagination be placed on the shoulders of the plaintiff. Alhaji Dahiru Saude v. Alhaji Hakim Abdullahi (1989) 7 S.C. (Pt.II) 116, (1989) 3 NSCC (Vol. 20) 177, 178.A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.
The nature of this appeal warrants what looks like an irregularity. The appellant admits the Originating Summons was not signed by the Judge, but urges the court to hold that the error was not fatal to the originating summons it is only an irregularity that could be cured. The court can cure it or admit it only as irregularity. Trial court found it as irregularity, though Court of Appeal held it was fatal to the case, this judgment has seen it as mere error amounting to curable irregularity and it was the fault of court’s administration not caused by the appellant. In all irregularities concerning procedure, the main suit should not be vitiated unless miscarriage of justice will thereby be occasioned. The parties to this suit understood what the plaintiff taking out Originating Summons asked for. The fact that an administrative error occurred through the fault of the registry will not destroy the suit. The court should correct its administrative error.
There is merit in this appeal and for the reasons given in the judgment of my learned brother, Belgore, JSC., the appeal ought to be allowed. Okeke, J., is quite right that the administrative blunder of the registrar signing the Originating Summons instead of the judge as required by Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, is a mere irregularity. It is wrong of a court to punish a party for a mistake committed, not by the party, but by the Registry of the court. The Court of Appeal committed an error in trying to distinguish the decision of this court in Saude v. Abdullahi (1989) 7 S.C. (Pt.II) 116; (1989) 3 NSCC 177 from the case in hand. In that case, this court held that failure of a judge to sign an Originating Summons is a procedural irregularity. This court’s decision in Saude v.Abdullahi (supra), is therefore on all fours with the situation in the present case. A breach of the rule of practice can only render a proceeding an irregularity and not a nullity. What happened in the Registry was a technical error and should not be a ground for nullifying proceedings. Where the facts are glaringly clear the court should ignore mere technicalities in order to do substantial justice to the case per MOHAMMED, J.S.C
In my view, the fact that it was the registrar who erroneously signed the Originating Summons instead of the Judge did not constitute an incurable irregularity and did not render the process a nullity as the Originating Summons could have been rectified quite easily at such initial stage of the proceedings by the Judge signing the same as required by the Rules. I think, with respect, that the court below was in error to have held otherwise….
I think I ought to stress that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for the assessment of the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as the signing of the relevant process or the writ of summons or the issuing of an Originating Summons by a judge or other officer empowered by law to sign them are entirely the domestic affairs of the court and its staff and a plaintiff may not in the interest of justice be unduly penalized for mistake of the court and its staff in connection with such internal matters particularly where no miscarriage of justice, as in the present case, is occasioned. See Alawode v. Semoh (1959) SCNLR 91.
In my view, the fact that the registrar in the present case erroneously signed the Originating Summons instead of the Judge is a technicality that should not be allowed to defeat the cause of justice in the case, particularly when a judge seised of the matter can quite easily sign the same at this stage of the proceedings to enable the hearing of the case to commence and the suit determined on its merits. Per Iguh JSC
The crucial issue upon which the determination of this appeal rests/falls within a very narrow compass. It is simply, whether the signing of an Originating Summons by the Registrar instead of the Judge in breach of Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2000, rendered the process null and void or merely irregular. The trial court relying on the provisions of Order 3 Rule 1 of the said Federal High Court (Civil Procedure) Rules, 2000, treated it as a mere procedural irregularity but the Court of Appeal took the opposite view. I have read the leading judgment of my learned brother, Belgore, JSC. and I agree with him that the court below was in grave error to have reversed the decision of the trial court. Any non-compliance with any 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: Per EDOZIE, J.S.C
I am of the humble but firm view that the decisions of the Supreme Court in FAMFA OIL LIMITED V ATTORNEY-GENERAL OF THE FEDERATION & ANOR.; SAUDE V. ABDULLAHI (1989) 7 S.C. (PT.II) 116; (1989) 3 NSCC 177I and ANYANWOKO V. OKOYE & 4 ORS are applicable to this case. Where the Rules require that the Originating Summon be sealed by the judge and the same is sealed by the Registrar or the legal practitioner, it is the same thing as the Originating Summon not being signed at all. Yet in those cases the Supreme Court regarded it as an irregularity which does not nullify the Originating process. I am bound to follow the opinion of the Supreme Court on the effect of failure of the Registrar to seal or sign originating processes. See DALHATU V. TURAKI (2003) 15 NWLR PT. 843 PAGE 310 AT 323. I therefore hold that it does not affect the jurisdiction of the court.
I have looked at the Order 6 of the Imo State High Court (Civil Procedure) Rules 2017. It sets out the roles and responsibilities of the counsel bringing an action on behalf of his client and the Registrar. What comes to my mind is that it will not be proper to punish the registrar for the failings of the counsel in bringing a suit on behalf of his client. In the same vein, it will not be proper to punish the counsel for the failings of the Registrar in carrying out the duties imposed on him by the Rules. In situations like this I suggest that Rules should be amended to ensure that the Registrar or other court officials who fail to carry out their duties properly on the Originating processes brought before them are punished. It should not be the case of the father has eaten a soured grape and the children’s teeth are on edge.
The duties of the counsel as clearly stated in the rules is to prepare the Originating Processes, sign each copy and make available adequate number of copies needed for service. It is the duty of the Registrar to sign and seal every originating process; make necessary entries in respect of the Originating Process and make prompt arrangement for service on the Defendant(s).
In my view the Plaintiffs/Judgment creditors/Respondents ought not to be punished for the errors or negligence of a court official. In OLALEYE v. AFRIBANK NIGERIA PLC & ORS (2014) LPELR-23742(CA) it is held:
It is trite that mistakes or omissions of court officials in the Registry (not instigated, encouraged or condoned by a litigant) cannot be visited on the litigant by the court penalising the litigant for the said mistakes/omissions – See Anyanwoko v. Okoye and Ors. (2010) 1 S.C. (Pt.11) 30, Famfa Oil Ltd. v. Attorney General of the Federation and Ors. (2003) 12 SCM 85 and Ede and Anor. v. Mba and Ors. (2011) 12 S.C. (pt.11) 106. Accordingly, the court below should not have punished the appellant for the failure of its officer to draw the attention of the court below to the letter of adjournment the appellant had submitted to the said court official.” Per IKYEGH, J.C.A. (P. 15, paras. C-F)
I also agree with the Plaintiff/Judgment Creditor that the 4th Defendant having fully participated in the hearing of the suit cannot turn around to raise the issue that the Originating Summons was not signed by the Registrar. See UBA PLC & ANOR V. UGOENYI & ANOR (2011) LPELR-5065(CA). From the decisions of the Supreme Court it becomes obvious that non compliance with the rules of procedure or any existing practice as the failure of the Registrar to seal, sign or endorse an Originating Process is a mere irregularity that does not automatically render proceedings following non-compliance void. By virtue of Order 5 R 2 of High Court of Imo State (Civil Procedure) Rules 2017, the 4th Defendant was at liberty to have brought an application to the court to set the Originating Summons aside before taken any fresh steps. Decision at that point would have been taken one way or the other. In the instant case the 4th Defendant participated fully in the trial notwithstanding the alleged breaches raised in his present application. There is no evidence of miscarriage of justice worked on the 4th Defendant/Applicant; he was no deprived of his natural justice. He vigorously participated in the trial and he made his choices. It is too late in the day to cry foul.
In the case of IGIRIGA V. BASSEY & ORS (supra) relied upon by the Applicant, the Defendant entered a conditional appearance and raised the issue promptly. Also in the later case of OSHIOMHOLE & ORS v. FULANI & ORS (supra) it was raised at the trial court in the course of the trial. In none of the two cases was it raised after the judgment has been delivered. In ANYANWOKO V. OKOYE & 4 ORS (supra) the court stated:
“The next issue is whether the filing of a counter affidavit and a further affidavit by the defendant/appellant after the service of the originating summons on her amounted to taking steps in the proceedings to constitute waiver of her rights. The learned trial judge found that the steps taken by the 1st defendant in filing a counter affidavit and a further affidavit after becoming aware of the irregularity complained of amounted to waiver of her rights to complain about the defect in the originating summons. The court below maintained the same poise. I am of the considered view that they were right. For where a party is aware of noncompliance or where a writ is defective it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings.
In the same vein, in G. CAPPA PLC V. NNAEGBUNA AND SONS LTD & ANOR (2009) LPELR-8349(CA) it is stated:
“… on the issue that there was non compliance with Section 97 of the Sheriff and Civil Process Act, I do agree with the submission of learned Counsel for the Respondents that it is the duty of the Registrar of the trial Court to endorse the writ and his failure to do his job would not be visited on the litigants who are the Respondents in the instant case. In fact the Supreme Court has stated in Broad Bank Nigeria Ltd Vs. Alhaji Olayiwola & Sons Ltd (2005) All F.W.L.R. (Pt. 251) 236 at 262 that – “If the presumption of the law is that a writ should be of a certain nature or in a certain manner before it can be valid for service, it is the bounden duty of the Registrar to perform his duty of endorsing the process. The appellant in this case cannot be punished for the negligence or tardiness of the registrar in the performance of his duty.” I agree completely. Moreover, the Appellant having taken steps in the suit by filing notice of intention to defend with an affidavit in support, without complaining against the non compliance with the provision of Section 97 of the Sheriff and Civil Process Act, has waived his right to complain thereafter. See Uchendu Vs. Oginni (Supra) Odua Investment Vs. Talabi.”Per JOHN INYANG OKORO ,J.C.A ( Pp. 13-14, para. B )
I hold the view that it is the duty of the Registrar to sign and seal an originating summons. See NZEKWE V ANAEKWENEGBU [2011] 16 NWLR (PT. 1274) 431 AT 436; (2012) ALL FWLR (PT. 620) 1390 AT 1399 – 1402. I do not think it is proper to punish the Plaintiffs/Judgment Creditors/Respondents for the failure of the officer of the court more so when no harm was caused on the Defendant and the case has been concluded and judgment delivered.
I had earlier stated that the 4th Defendant filed Notice and Grounds of Appeal and also filed this application to set aside. These are procedures open to the Applicant. And where the law gives a party option on the pursuit of his right it does not lie in the mouth of the opponent to determine the choice he makes. See OJUKERE V. OYEBANJI (2017) LPELR-42718(CA); BRAUEREI BECK GMBH & CO & ANOR V. NIGERIAN FAR EAST CO. LTD & ORS (2015) LPELR-24662(CA). Nevertheless law abhors chaos, hence, the concept of abuse of court process to uphold orderliness in pursuit of the right. In OSUN STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR V. NATIONAL CONSCIENCE PARTY & ORS Suit No: SC.40/2009 delivered on Friday, the 1st day of March, 2013, (2013) LPELR-20134(SC) the court stated:
“What does the term “abuse of Court process”, mean? Different situations may constitute such an abuse. In SARAKI V. KOTOYE (1992) NWLR (PART 264) 115, this court held the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice as constituting such an abuse of court process. Other situations include an application for adjournment by a party to an action to bring an application for leave to raise issues of fact already decided by the court below -per Ogundare JSC, in ALADE V. ALAMULOKE (1988) 1 NWLR (PART 69) 207. The situations that may give rise to an abuse of court process are indeed in exhaustive but may be said to refer to any of several situations where the process of court has not been used or resorted to fairly, properly, honestly to the detriment of the other party.” Per ALAGOA, J.S.C. (P.31, paras. C-G) –
In the course of his opposition, on the 11 – 3-19 when this application was heard, the Plaintiffs/Judgment Creditors/Respondents’ counsel said: “We draw the attention of the court to the pendency of the Notice of Appeal filed by the 4th Defendant/Judgment Debtor/Applicant. Our search in the court file revealed there is a Notice of Appeal. The contemporaneous pendency of the two processes amounts to abuse of court process.” I agree. I do not think the Applicant can activate the two processes at the same time. This is a case where two similar processes are used in respect of the exercise of the same right. The two processes are aimed at one and the same goal. See AGWASIN & ANOR V. OJICHIE & ANOR (2004) 18 (PT.1) NSCQR 359; (2004) 10 NWLR (PT. 882) 613 AT 625.
Let me at this point state that the averment in paragraph 5 of the Applicant: “That the instant application would have been brought earlier than now except that there was delay in obtaining certified copies of the judgment and the originating summons from the court registry of this Honourable Court” is not and cannot be correct. The judgment of this court was read from typed script on 26th March 2018. The copy of the judgment attached to this application shows it was certified on the 28th March 2018. The letter of the Applicant requesting for the certified true copy of the Originating Summons was acknowledged by the court on the 4th April 2018. And the certification was done same day. This application was brought on 13th April 2018. So where is the delay from the registry of this court? I cannot see any. It is nonexistent.
5th Defendant/Judgment Debtor/Applicant’s Application
This application for leave to set aside the judgment was filed on 23-11-18 while the motion for extention of time within which the application to set aside judgment may be brought was filed on 11-1-19. The Applicant omitted to state when and how he got to know about the judgment.
To put the application of the 5th Defendant/Judgment Debtor/Applicant, in its rightful perspective, I think it will be appropriate I reproduce the application made on behalf of the 5th defendant as well as the records of the court in the course of the proceedings that culminated in the judgment of 26th day of March 2018 now sought to be set aside by him on the ground that he was not personally served with the Originating Summons and was therefore unaware of the suit until judgment was delivered.
MOTION FOR EXTENTION OF TIME
IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
SUIT NO: HOW/388/2014
- ALBERT DIALA
- INNOCENT C. ANYANWU-OPARA CLAIMANTS/RESPONDENTS
AND
- THE GOVERNOR OF IMO STATE
- THE ATTORNEY GENERAL OF IMO STATE
- AHIAZU MBAISE LGA
- ENGR. DESMOND DIALA DEFENDANTS/APPLICANTS
- HRH EZE CHIDUME OKORO
(CHAIRMAN, OWERRI ZONE
COUNCIL OF NDI EZE, IMO STATE)
MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 39 RULES 1 AND 44 RULE 4 OF THE IMO STATE (CIVIL PROCEDURE) RULES, 2008 ANO UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE that this Honourable will be moved on day of
……………….. 2016, at the hour of 9 o’clock in the forenoon or so soon thereafter as the 1st, 2nd and 5th Defendants/Applicants or counsel on their behalf will be heard praying the Honourable court for the following orders:
- An order of this Honourable Court for extension of time within which the 1st, 2nd and 5th Defendants/Applicants will file and serve their counter affidavit, written address and other processes in this suit.
- An order of this Honourable Court deeming as properly filed and served the counter affidavit, written address and other processes of the Applicants in this suit, which has already been filed and served on the other parties.
- And for such other order(s) as the Honourable Court may deem fit to make in the circumstance.
DATED THE 5TH DAY OF MAY 2016.
Signed
I.I.AMADI (MRS)
ASSISTANT DIRECTOR CIVIL LITIGATION
FOR SERVICE ON
TH E CLAI MANTS
C/O THEIR COUNSEL
P .L.OSUAGWU ESQ
105 WETHERAL RD.
OWERRI.
IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
SUIT NO: HOW/388/2014
BETWEEN
- ALBERT DIALA } CLAIMANTS/RESPONDENTS
- INNOCENT C. ANYANWU-OPARA
AND
- THE GOVERNOR OF IMO STATE
- THE ATIORNEY GENERAL OF IMO STATE
- AHIAZU MBAISE LGA
- ENGR. DESMOND DIALA
- HRH EZE CHIDUME OKORO DEFENDANTS/APPLICANTS
(CHAIRMAN, OWERRI ZONE
COUNCIL OF NDI EZE, IMO STATE)
AFFIDAVIT IN SUPPORT
I, MONICA ADAWAI, adult, Female, Civil servant, Christian and Nigeria citizen do hereby make oath and state as follows:-
- That I am a litigation officer in the office of the 2nd Defendant.
- That as a result of my position afore stated I am conversant with the facts as deposed herein.
- That I have the consent and authority of the 1st, 2nd and 5th Defendants/Applicants to depose to the facts herein stated.
- That this matter was assigned to 1.1. Amadi(Mrs.), Assistant Director, Civil Litigation for defence.
- That our I. I. Amadi(Mrs.) ADCL, informed me on the 29th day of April, 2016 at about 12.pm and I verily her as follows:-
(a) That shortly after this matter was assigned to her, she wrote the relevant Ministry for briefing to enable her prepare and file the necessary response to the Suit.
(b) That before the brief came the time allowed by the Rules of this Honourable court for doing so has elapsed.
(c) That the leave of this Honourable Court is required to file and serve the counter affidavit and other processes on the other parties in this suit.
(d) That the counter affidavit and other processes in this suit have been filed by the Applicants and served on the other parties.
- That it is in the interest of justice that this Honourable Court grants this application.
- That the Respondents will not be prejudiced if this application is granted.
8 That I make this Oath in good faith and in accordance with the Oath Act 2004.
Signed
Deponent
Sworn to at the High Court Registry, Owerri
This 6th Day of May 2016
Contemproncity
BEFORE ME
Signed
Commissioner for Oath
RECORD OF PROCEEDINGS
On the 17th day of July 2017 the 1st Plaintiff was in court as well as 3rd Defendant
The counsel appeared as follows:
P.L.Osuagwu for the Plaintiffs
I.I. Amadi AD Estate and Trust for the 1st, 2nd, and 5th Defendants
A.U. Onyeneke for 4th Defendant with Nwankeke Juliet and Ifeoma Ekeh
Then, I.I. Amadi moves her application:
Amadi: I have an application for extention of time to regularize our process. It was filed on 6-5-16. I apply that the process be amended to include the 3rd Defendant, that the appearance be for the Defendant also.
The motion is dated 5-6-16 and filed on 6-6-16. It is supported by 8 paragraphs affidavit. we equally filed a written address.
We adopt the written address and urge the court to grant the application. We urge the court also to hold that the processes to be deemed properly filed and served to also include the 3rd Defendant.
Onyeneke: We are not objecting
Osuagwu: We are no objecting. But it should be on terms. We ask for N20, 000.
Court: The application is granted. Time is extended for the 1-3rd & 5th Defendants to file and serve their counter affidavit and other processes. The processes are deemed properly filed and served. No order as to cost.
On 16th October 2017, the counsel appeared as follows:
P.L. Osuagwu for the Plaintiffs
I.I.Amadi AD for 1st, 2nd, 3rd, and 5th Defendants
A.U Onyeneke with Ifeoma Eke for 4th Defendant
On 11th December 2017, the Plaintiffs were in court. The 3rd Defendant was represented by Mrs. Edith Emeana, others absent. Counsel appeared as follows:
P.L. Osuagwu for the Plaintiffs
A.U.Onyeneke with Ifeoma Eke ands Amaka Okoh for the 4th Defendant
Onyeneke:The counsel to the 1st, 2nd, 3rd and 5th defendants called me and also called the counsel to the Plaintiff indicating that she has promotional examination. She asked for date. We are not opposed to the adjournment.
Osuagwu: I confirm that she called to tell me that she has interview. I suggested we adopt the papers but she said she will like to adumbrate on the processes. We are not opposed to the adjournment.
Court: Matter is adjourned to 22-1-18 on the agreement of the counsel in court.
On the 29th January 2018 when the matter was eventually heard, the plaintiffs were in court. The 3rd Defendant was represented by Mrs. Edith Emeana. Others were absent. Cousnsel appeared as follows:
P.L.Osuagwu for Plaintiffs
O.E.Nnabuihe SC for 1st, 2nd , 3rd and 5th Defendants
A.U.Onyeneke with Amaka Okoh for 4th Defendant.
I agree with the counsel that non service on the party ought to be served vitiates the court’s proceedings and renders judgment or order therefrom liable to be set aside. In Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) 506; (2006) 11-12 S.C. 31 it is stated:
“It is a correct proposition of law that where service of process is required, failure to serve such process is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity. In view of the above, it is preposterous that the 5th defendant who was fully represented by a counsel in this matter should turn around to say that he was not served with the court processes and that he was not aware of the suit.
In the instant case, it is either that the 5th Defendant/Judgment Debtor/Applicant has decided to deliberately lie on oath or the 5th Defendant/Judgment Debtor/Applicant wants the court to hold that one MONICA ADAWAI, adult, Female, Civil servant, Christian and Nigeria citizen, a litigation officer in the office of the 2nd Defendant lied under oath when she deposed: “That I have the consent and authority of the 1st, 2nd and 5th Defendants/Applicants to depose to the facts herein stated” in the Affidavit in Support of the Motion for Extention of Time to file Counter Affidavit to the Originating Summons. Again that one Evans Iroanya Adult, Male, Civil Servant, Christian and a citizen of the Federal Republic of Nigeria lied on oath when he stated: That I have the consent and the authority of the 1st, 2nd and 5th Defendants to depose these facts” in the Counter Affidavt in opposition to the Originating Summons.
Since the 5th Defendant claims ignorance of the existence of the case, it means that the 5th Defendant did not give his consent or any authority to Monica Adawai and Evan Iroanya to depose to the facts as they stated. In other words the foundation of the Affidavit in support of motion for extention of time and the Counter Affidavit to the Originating Summons were laid with lies.
With the processes and proceedings of the court earlier reproduced in this ruling, it is obvious that there is no iota of truth in the deposition of the 5th Defendant in paragraph 5(c) – (d):
(5)(c)I was informed by A. U.ONYENEKE ESQ; counsel to the 4th Defendant and I verily believe him that on the day prior to the day the matter came up for hearing, Mrs. Amadi; counsel to the 1st Defendant announced appearance for the 1st Defendant and the court suo motu advised her to announce appearance for the 3rd and 5th Defendant since they were not represented in court.
(5)(d)That on the strength of that directive, she announced appearance for the 3rd Defendant and I.
The processes and the proceedings bear me witness that this court never adviced I. I. Amadi to appear for the 5th Defendant. The 5th Defendant/Judgment Debtor/Applicant either erroneously or mischievously decided to go with what, according to them, they were informed by A.U.Oneyneke Esq., when there is hard record of court to guide them. I guess the 5th Defendant/Judgment Debtor/Applicant and his counsel were unable to reach I.I.Amadi Esq., who was said to have been adviced, to confirm if she was so adviced and probably get an affidavit from her. At the time the 5th Defendant decided to instruct a counsel to bring this application, a simple search on the court file and a look at the record of proceedings of the court would have been the most professional step to take. Counsel should not file a process just for the sake of filing a process. Just a look at the file would have revealed to the 5th Defendant and his counsel the fact the processes filed in the matter by I.I. Amadi on behalf of the 5th Defendant were all filed before the matter came before this court for the first time. In the case file is the letter dated April 4, 2017 and filed in court on 24th April 2017 written by P.L. Osuagwu and titled “Application to issue Hearing Notice. Re: Suit No HAM/67/2016 (formerly HOW/388/2014- Albert Diala & Anor vs The Governor, Imo State & Ors”. It reads:
We are counsel for the Claimants in the suit stated above, which is a transferred matter from High Court, Owerri.
May we respectfully apply that hearing Notice be issued on the following:
- 1st, 2nd and 5th Defendants c/o their counsel: I.I. Amadi (Mrs.) Assistant Director, Civil Litigation, Ministry of Justice, State Secretariat, Owerri, Imo State.
- 3rd Defendant, Ahaizu Mbaise Local Government Headquarters
- 4th Defendant, Obodo Ujichi Autonomous Community, Ahiazu Mbaise.
There is date fixed for the matter yet
Necessary statutory fees shall be paid.
Yours faithfully
Signed
P.L.Osuagwu
Pp: P. L. Osuagwu & Co
On the allegation that the 5th Respondent was sued in his personal capacity, the Counter Affidavit sworn to by Evans Iroanya and filed by I.I. Amadi showed the contrary. In paragraph 6 (e) it is stated thus:
“The members of the autonomous community being desirous of having an Eze inundated the 1st Defendant with appeals to allow them elect an Eze by themselves which the 1st Defendant acceded to. The 1st Defendant thereafter, sent 5th Defendant herein to observe the election of 25/06/2013 as requested by the community. The election produced the 4th Defendant as the winner, hence his presentation and subsequent recognition by the 1st Defendant. The said election was solely conducted by the leaders of the Community and not the 5th Defendant.”
I wonder what the 5th Defendant in his personal capacity will be doing in an ezeship election/selection of another autonomous community. From the description of the 5th Defendant in the process, it is obvious that the 5th Respondent was sued in his capacity as the Chairman, Owerri Zone Council of Ndi Eze, Imo State and the role he played in that capacity, having been sent by the 1st Defendant. The State counsel appreciated this fact and fully represented the 5th Defendant.
Having said that, I will also add that whether the 5th Defendant was sued in his personal capacity or not, in the face of the fact that a counsel represented him fully in this matter, it pales into insignificance, becomes uninteresting, unsatisfying, boring and insipid. It is not the duty of the court to enquire or investigate the authority of a counsel to represent a party before it. See AKANDE V. ODUNEWU & ORS (2015) LPELR-24683(CA). That will definitely amount to undue interference and jumping into the arena. May that day never come when a party that loses a case will come back to say that the counsel who represented him did not have his consent and on that ground the judgment of the court will be set aside.
The counsel to the 5th Defendant/Judgment Debtor in the course of hearing this application tendered a document- Affidavit of Service deposed to on 22nd April 2015. It indicated that Hearing Notice was served on the 5th Defendant through their secretary at Council of Imo Traditional Ruler (sic), New Owerri. It is clear that the Motion for extention of Time to file Counter Affidavit on behalf of 1st, 2nd, and 5th Defendant was filed after the service of the Hearing Notice on the 5th Defendant as indicated in the affidavit.
The Plaintiffs/Judgment Creditors/Respondents’ counsel did not as much lift a finger in defending this matter by filing a counter affidavit. He only opted to oppose on point of law. Will point of law answer to allegations of facts? I do not think so. Good enough this court is allowed to look into its files and look at documents though in the case file but not made part of the application under consideration to arrive at the justice of the matter. In ATTORNEY-GENERAL OF THE FEDERATION V. RALPH UWAZUIKE & ORS. (2006) LPELR-11858(CA) it is stated:
‘It is settled law that a court is entitled to look at a document or documents in its file. Similarly an appellate court is entitled to look at the contents of the record of appeal before it. West African Provincial Ins. Co Ltd V Nigerian Tobacco Co. Ltd 1987 2 NWLR pt 56 pg 299 Agbahomoro V Eduyegbe 1999 3 NWLR pt 594 pg 170 Funduk Engineering Ltd V Mc Arthur 1995 4 NWLR pt 392 pg 640.” Per ADEKEYE, J.C.A (Pp. 10-11, paras. G-A) –
I am permitted to take judicial notice of my records and processes filed before me. Hence in CLETUS OKWUCHUKWU ICHE v. THE STATE (2013) LPELR-22035(CA) it is stated:
“Learned counsel for the appellant had argued that it was wrong for the learned trial judge to have looked at Exht. A annexed to the affidavit filed earlier in the case in the process of determining the age of the appellant. But I think it is well settled that a court will take judicial notice of its records and proceedings. All processes and documents filed in a case are for the consumption of the court. A party cannot urge the court not to look at papers already filed before it. See GBANIYI OSAGILE & ANOR. vs. PAUL ODI & ANOR. (1990) 2 NWLR (pt. 137) 130, (1990) 5 SC (Pt.11) 1; MILITARY GOVERNOR OF LAGOS STATE & ORS. vs. ADEBAYO ADEYIGA & ORS. (2012) LPELR 7836 (SC); DAGGASH vs. BULAMA (2004) 14 NWLR (Pt.892) 144; SBM SERVICES (NIG.) LTD. vs. OKON (2004) 9 NWLR (Pt.879) 529.
See also AKINOLA V V. C. UNIVERSITY OF ILORIN (2004) 11 NWLR (PT.885) 616, (2005) ALL FWLR (PT. 259) 1934 AT 1964; CHIEF M.O.A. AGBAISI & ORS. V. E. EBIKOREFE & ORS (1997) LPELR-226(SC) (1997) 4 NWLR (Pt.502)
I think the application of the 5th Defendant/Judgment Debtor was brought out of malice. I see this application as an abuse of court process. An application not supported by an iota of law or fact is an abuse of court process. It is brought purposely to annoy and irritate the opponent and waste the time of this court.
This application of the 5th Defendant deserves nothing but dismissal with a very heavy cost. Nevertheless, I will restrain myself from awarding this very heavy cost. The Plaintiffs/Judgment Creditors/Respondents’ counsel did not do much. It is the time and energy of the court that was unnecessarily sapped. The court cannot award cost to itself.
The applications of the 4th and 5th Defendants/Judgment Debtors/Applicants are respectively dismissed.
I so hold.
I.M. NJAKA
Judge
6-5-19