IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
THIS WEDNESDAY THE 7TH DAY OF NOVEMBER, 2024
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HOW/565/2023.
BETWEEN:
CHIEF PST. POWELL OPARAUGO
(for himself and on behalf PLAINTIFF/ RESPONDENT
of members of Oparaugo family,
Owerri Nchi Ise Owerri Municipal Imo State).
AND
1.EMMANUEL UKACHU
2.UKACHUKWU UKACHU
3.MRS. CHRISTIANA UKACHU DEFENDANTS/ APPLICANTS
(for themselves and on behalf of
members of Ukachu family, Owerri, Imo State).
RULING
The 2nd and 3rd Defendants/Applicants, represented by their counsel, filed a Motion under Order 39 Rule 1 of the Imo State High Court (Civil Procedure) Rules 2017 and the inherent jurisdiction of the Court, requesting: The dismissal of Suit No. HOW/565/2023 filed by the Plaintiff/Respondent, Chief PST Powell Oparaugo, for being:
- Incompetent, as the writ of summons was not properly issued (lacking the registrar’s signature, date, stamp, and seal).
- An abuse of court process, due to the application of the doctrine of res judicata, asserting that the subject matter and issues have already been resolved in a previous suit (Suit No. HOW/141/2011).
- Any other orders the Court deems fit.
- Affidavit in Support of the Motion
The affidavit, sworn by the 3rd Defendant/Applicant, Mrs. Christiana Ukachulam, stated that the writ of summons initiating the present suit was not properly issued (missing the registrar’s date, signature, stamp, and seal), making the suit procedurally defective. The subject matter of the current suit, No. 5 Oparaugo Street, Owerri, was already decided in Suit No. HOW/141/2011, where: The Court declared the property as belonging to the Defendants’ family. The Plaintiff’s family, represented by a witness (Lemmy Oparaugo), was involved, making them privy to the prior decision. The judgment remains valid and unchallenged. Relitigation of the matter constitutes an abuse of court process, as judicial determination must be final.
The affidavit annexed a certified copy of the judgment in Suit No. HOW/141/2011 as Exhibit A, stressing the finality of that decision.
The written address by the Defendants/Applicants’ counsel raised Issues for Determination as
- Whether the suit is incompetent due to the defective writ of summons.
- Whether the suit amounts to an abuse of court process due to the principle of res judicata.
The writ fails to meet the mandatory requirements of Order 6 Rule 2 of the Imo State High Court (Civil Procedure) Rules, which necessitates the registrar’s signature, stamp, seal, and filing date.
Case law, such as NNPC v. Roven Shipping Ltd (2019) and Gbenga v. Joy & Ors. (2009), was cited to support the argument that a defective writ renders the suit invalid.
The Court in Suit No. HOW/141/2011 conclusively determined ownership and possession of No. 5 Oparaugo Street, Owerri, in favor of the Defendants/Applicants.
The parties, subject matter, and issues are the same in the current suit, satisfying the conditions for applying res judicata as established in Yusuf v. Adegoke (2008) and Ekukuje v. Akwido (2001).
Allowing the current suit would undermine judicial finality and amount to an abuse of court process.
The Defendants/Applicants urged the Court to dismiss the suit as incompetent and an abuse of court process, relying on established legal principles and prior judicial decisions.
The Defendants/Applicants request the Court to:
- Dismiss the Plaintiff’s suit in its entirety.
- Award substantial costs to the Defendants/Applicants.
Further Affidavit in Support of the Motion, Sworn by the 3rd Defendant/Applicant, stated that Paragraphs 1 and 2 of the Plaintiff’s Counter Affidavit are admitted. Denies that the Applicants are improperly described or misidentified. Asserts that the writ of summons and other processes filed by the Plaintiff are invalid for lacking: The Registrar’s signature, date, stamp, and seal. The required signature of the Plaintiff or his counsel. Proper swearing of witness depositions before the Commissioner for Oaths. Restates that the property in dispute was conclusively adjudicated in Suit No. HOW/141/2011, where: the property was declared as belonging to the Defendants/Applicants. The Plaintiff’s family, represented by privies (Chief Onyema Obi Oparaugo II and Lemmy Oparaugo), participated in the proceedings. The Plaintiff’s current claims are merely a repetition of previously resolved issues.
Counsel argued that parts of the Plaintiff’s Counter Affidavit were inadmissible for being argumentative or containing legal conclusions. The affidavit reaffirms that the Plaintiff is estopped from relitigating the matter and that the suit is fundamentally defective and should be dismissed.
In the Defendants/Applicants’ reply to the Plaintiff’s written address it is argued that the Plaintiff disputed only one element of res judicata—whether the parties in the current suit are the same as in the prior suit. Defendants agree that they were parties to Suit No. HOW/141/2011. However, they argue that the Plaintiff’s family, through its privies (Chief Onyema Obi Oparaugo II and Lemmy Oparaugo), was also a party in the earlier suit. Ownership and possession of the disputed property were already decided based on the testimony and actions of the Plaintiff’s family in the earlier case, rendering the current suit barred by res judicata. The case of Arabio v. Kanga (1932) defines privies and supports the claim that the Plaintiff’s family is bound by the earlier judgment. Additional reliance on Nwosu v. Udeaja (1990).
The Plaintiff’s argument that defects in the writ should not affect the case because they are procedural faults by the registrar is dismissed: The Defendants argue that the law requires the writ to be properly signed and sealed, either by the registrar or the Plaintiff/counsel. Failure to comply invalidates the suit. Okarika v. Samuel (2013) and Okonji v. Okolo (2022) confirm that an unsigned writ renders a suit incompetent.
The Defendants/Applicants: Reiterate that the suit is incompetent due to: Failure to comply with procedural rules regarding the writ of summons. The application of res judicata, as the issues were previously resolved in Suit No. HOW/141/2011. Urge the Court to grant their motion to dismiss the suit.
The Counter Affidavit of the Plaintiff/Respondent, Chief Pst. Powell Oparaugo, is an 11-paragraph affidavit in response to the Defendants/Applicants’ motion. Paragraphs 1-3 and 6(ii)-(iii) of the Defendants/Applicants’ affidavit were admitted as true. Plaintiff disputes the claim that the writ is invalid, asserting that page 7 of the writ contains the registrar’s signature, date, stamp, and seal. Lemmy Oparaugo, mentioned by the Defendants, was only the grandson of Chief Oparaugo Ajoku and not a representative of the Oparaugo family in Suit No. HOW/141/2011. Chief Onyema Obi Oparaugo II, who issued the power of attorney, acted unilaterally without the consent of the principal members of the family. The Plaintiff claims this invalidates his role in representing the family.
Exhibit A, attached by the Plaintiff, purportedly demonstrates that the power of attorney was not issued on behalf of the Oparaugo family.
Judgment in HOW/141/2011: The Plaintiff asserts that Justice I.O. Agugua’s judgment nullified the power of attorney and sale of the property, returning the property to its original lease agreement. The Plaintiff denies any participation in the earlier suit and asserts that the current claims were not litigated previously. The Plaintiff denies the applicability of res judicata, arguing: The parties in the present case differ from those in the earlier suit. The issues in the current suit were not resolved in HOW/141/2011.
The Plaintiff claims the Defendants’ motion lacks merit and is designed to delay justice.
In the Written Address, the Plaintiff’s counsel addressed the Defendants/Applicants’ motion and argued against the dismissal of the case:
He raised Issues for Determination as:
- Whether the Defendants/Applicants’ application is meritorious and capable of being granted.
The Plaintiff relies on the case of Abiola & Sons B. Co. Ltd. v. 7up Bottling Co. Ltd. (2012) to outline the conditions for res judicata:
The parties or their privies in both cases must be the same.
The earlier judgment must be valid, subsisting, and final.
The claims/issues in dispute and the subject matter must be the same.
The earlier court must have been of competent jurisdiction.
The Plaintiff argues that these conditions are not satisfied because: The Plaintiff in the present suit was not a party to HOW/141/2011. Lemmy Oparaugo acted as a grandson, not a representative of the Oparaugo family.mThe power of attorney issued by Chief Onyema Obi Oparaugo II was invalid.
The Plaintiff refers to page 7 of the writ, asserting that the registrar signed, dated, stamped, and sealed it.
Alternatively, even if the writ were defective, the Plaintiff argues that any failure by court officials (registrar) should not prejudice the litigant. This position is supported by cases such as C.B.N. v. SC.S.B.V. (No. 2) (2015) and SMB Service (Nig.) Ltd. v. Okon (2009).
The Plaintiff urges the Court to dismiss the Defendants/Applicants’ motion as unmeritorious and a tactic to delay justice.
Based on the case presented by the Defendants/Applicants and the Plaintiff/Respondent, the following issues arise for determination:
- Whether the Plaintiff/Respondent’s writ of summons is invalid and renders the suit incompetent due to alleged procedural defects in its issuance, such as lack of signature, stamp, seal, and date by the Registrar, and improper swearing of witness depositions.
- Whether the Plaintiff/Respondent’s suit constitutes an abuse of court process and is barred by the doctrine of res judicata, considering the judgment in Suit No. HOW/141/2011 and the alleged involvement of privies of the Plaintiff’s family in the prior litigation.
Issue 1: Whether the Plaintiff/Respondent’s writ of summons is invalid and renders the suit incompetent due to alleged procedural defects.
The Defendants/Applicants argue that the writ of summons is procedurally defective for failing to comply with the mandatory requirements of Order 6 Rule 2(1) & (3) of the Imo State High Court (Civil Procedure) Rules 2017, which mandate that a writ must be signed, dated, sealed, and stamped by the court registrar. They rely on Gbenga v. Joy & Ors. (2009) and NNPC v. Roven Shipping Ltd. (2019), which held that such omissions are fundamental defects rendering a writ incompetent.
The Plaintiff/Respondent counters this claim by referring to page 7 of the writ, alleging that the registrar signed, dated, stamped, and sealed the writ. The Plaintiff alternatively argues that even if the registrar erred, procedural lapses by court officials should not prejudice a litigant, citing C.B.N. v. SC.S.B.V. (No. 2) (2015) and SMB Services (Nig.) Ltd. v. Okon (2009).
Compliance with procedural rules is critical. However, courts differentiate between fundamental and curable irregularities.
The Applicant in support of his application has cited and relied on Gbenga v. Joy & Ors (2020) ALL FWLR (PT 1044)573. “A writ issued without the registrar’s seal is incompetent and cannot be cured. Where the word ‘shall’ is used in any legislation, it means it is mandatory. There is no other meaning that can be ascribed to it.”
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 JCA (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 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)
The courts, are reluctant to punish litigants for mistakes by court officials if the litigant has fulfilled their obligations. I will not do so in this case.
Issue 2: Whether the Plaintiff/Respondent’s suit constitutes an abuse of court process and is barred by the doctrine of res judicata.
The Defendants/Applicants argue that the doctrine of res judicata applies, barring the Plaintiff’s suit because:
- Suit No. HOW/141/2011 conclusively determined ownership and possession of 5 Oparaugo Street, Owerri in favor of the Defendants.
- The Plaintiff’s family participated through privies, specifically Chief Onyema Obi Oparaugo II and Lemmy Oparaugo, making the current suit a relitigating of the same issues.
The Plaintiff/Respondent disputes this, asserting that:
- The Plaintiff was not a party to Suit No. HOW/141/2011.
- Chief Onyema Obi Oparaugo II and Lemmy Oparaugo acted individually and did not represent the Oparaugo family.
- The current claims differ, and res judicata does not apply.
It is contended by the Defendants that this action of the Plaintiffs is an abuse of court process. The decision by a trial judge as to whether there is an abuse of process or not is one of evaluation and balancing of the relevant factors. The court will consider contents of the first process vis-a-vis the second process to see whether they are aimed at achieving the same purpose, and if they are not, there is no abuse of Court process. See AGWASIM V. OJICHIE (2004) 10 NWLR (PT. 882) 613; (2004) 4 S.C. (PT. II) 160.
In Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165, the court held that even if the land in dispute is the same, the issues in the two cases must also be identical for res judicata to apply. If the claims in the second suit arise from a new set of facts (such as trespass by new parties), the second suit can proceed. In a similar vein, in BASIL EGBUONU V. BORNU RADIO TELEVISION CORPORATION (1997) LPELR-1040(SC)
“It would appear that where a set of facts or cause of action gives rise to multiple causes of action including a breach or threatened contravention of a fundamental right under the Constitution, the party so affected, as plaintiff, would have to bring two different actions at the same time. One of such actions by a writ of summons according to the provisions of the High Court (Civil Procedure) Rules and the other by a motion ex parte in accordance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, Cap. 62. If this is done in the same High Court it would perhaps be possible to have the cases consolidated. However, it seems that this may not be possible if the case based on fundamental rights is instituted in the Federal High Court since that Court lacks the jurisdiction to hear some categories of the cases that could be initiated by a writ of summons. Section 230 of the 1979 Constitution, Cap. 62, as amended by the Second Schedule to the Constitution (Suspension and Modification) Decree No. 107 of 1993.” Per MUHAMMADU LAWAL UWAIS ,JSC (Pp. 14-15, paras. D-A)
Also in AMSAG NIGERIA LIMITED & ANOR V. AMSLUK TRANSPORT NIGERIA LIMITED & ORS (2020) LPELR-49856(CA), it is stated:
What these cases require a Court to do when faced with an issue of multiple actions constituting an abuse of process is to look at the processes filed in the two actions and see whether they are between the same parties on the same subject matter and on same or very similar issues. Looking at the contents of the processes filed in the lower Court in Suit No PLD/J/595/2016 and those filed before the Upper Area Court, Plateau State in Case No UAC 111/DCR/213/2016 and scrutinizing them painstakingly, it is obvious that the parties in the two actions are not the same. The first Respondent that commenced Suit No PLD/J/595/2016 and made the claims therein, Amsluk Transport Nigeria Limited, is not a party to the action before the Upper Area Court. The contention of the Appellants that the company shares a common director in the person of Alhaji Yusuf Adamu, the second defendant in the matter in the Upper Area Court, with Amsluk Petroleum Nigeria Ltd, the first defendant in the Upper Area Court, did not make the first Respondent the same entity as Amsluk Petroleum Nigeria Ltd. They are two different entities in the eyes of the law.
Further, the subject matter of and the issues arising for determination in the two actions are completely different. The subject matter of Suit No PLD/J/595/2016 is the alleged illegal seizure and detention by the Appellants and the third and fourth Respondents of the haulage truck of the first Respondent which was being used to transport petroleum products belonging to Oando Plc at the material time, while the subject matter of Case No UAC 111/DCR/213/2016 was the alleged failure of Amsluk Petroleum Nigeria Ltd to deliver petroleum products it was contracted to do by the Appellants. The issues before the lower Court in Suit No PLD/J/595/2016 are whether the Appellants and the third and four Respondents did seize the haulage truck as alleged by the first Respondent and, if they did, whether the seizure was illegal and consequent on that, whether the first Respondent is entitled damages. The issues before the Upper Area Court in Case No UAC 111/DCR/213/2016 are whether there was a haulage contract between the Appellants and defendants in the case and, if so, whether the defendants failed to honor the contract and, consequent on that, whether the actions of the defendants in the case were criminal in nature or done with a criminal intent. It is clear that the lower Court was very correct when it found that the two suits did not constitute a multiplicity of actions and that Suit No PLD/J/595/2016 was not an abuse of process.
The cardinal point to ascertaining whether they are aimed at achieving the same purpose is that the parties are the same; issues and subject matter are the same. See OKORODUDU V. OKORODUDU (1977) 3 SC 21 AND KOTOYE V. SARAKI (1992) 9 NWLR (PT. 264) 156 AT 188-189. In Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, the court held that res judicata applies only where the subject matter and issues in the subsequent suit have been directly decided in the previous suit by a court of competent jurisdiction.
In GLEESON V J WIPPELL AND CO LTD: CHD 1977[1977] 1 WLR 510, [1977] 3 ALL ER 54 The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category.
‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that having due regard to the subject matter in dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in the proceedings to which the other is party. It is in that sense that I would regard the phrase ‘privity of interest’. Thus, in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa.’ ‘but ‘Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicion. A defendant ought to be able to put his own defence in his own way and to call his own evidence.’Sir Robert Megarry VC
The ultimate test in determining the presence of identity of cause of action is to consider whether the same evidence would support the cause of action in both the first and the second cases. Under the same evidence test, when the same evidence supports and establish both the present and the former causes of action, there is likely an identity of causes of action. G.R. NO. 121182, OCTOBER 2, 2000, 341 SCRA 583
So for its application:
The parties or their privies are the same in both suits.
The subject matter and issues in dispute are identical.
The earlier judgment is valid, subsisting, and final.
The earlier court was competent to adjudicate the matter.
The court must determine whether the Plaintiff in the current suit is privy to the parties in HOW/141/2011. If not, res judicata may not apply. The court must decide whether the issues in HOW/141/2011 (family ownership of No. 5 Oparaugo Street) preclude the Plaintiff’s current claims.
A privy is someone whose title or interest derives from a party in the earlier litigation. There are three classes of privies namely:
(a)Privies in blood, such as ancestor and heir.
(b)Privies in law, such as testator and executor, intestate and administrator and
(c)Privies in estate, such as testator and devisee, vendor and purchaser, lessor and lessee, or assignor and assignee. ANAZODO NWOSU V. CHUKWUMANJO UDEAJA (1990) 1 NWLR (Pt. 125) 188
In ALHAJI ABBA MOHAMMED SANI V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2010) 9 NWLR (Pt. 1198) 153 it is stated: Privy in relation to litigation to include someone who controls a law suit though not a party to it, someone whose interests are represented by a party to the lawsuit, and a successor in interest to anyone having a derivative claim. In the instant case, the appellant was privy to Sulgrave’s case and ought to be bound by the decision in that case. The appellant cannot be allowed to re-litigate the same issues which were decided in Sulgrave’s case which he, as the economic beneficiary of Barven, was privy to. (P. 177, paras.C-E)
This court in her judgment in the CONSOLIDATED SUIT NO SUIT NO: HOW/434/2013 / SUIT NO: HOW/540/2013 BETWEEN DR. CHARLES IWUDIBIA V UCHE PARURE & CHIDI PARURE stated thus:
The court finds that while the Ministry of Lands/Imo State Government should have been joined as a necessary party, the failure to do so does not invalidate the proceedings. This is Moreso when a staff from the ministry of land, Imo State testified as PW2. The witness confirmed the actions of the Government supporting the case of the Plaintiff. PW2, Surveyor Patrick Okafor, introduces himself as a staff member of the Ministry of Lands. PW2 identifies the following documents as originating from his office: Exhibit E: The Revocation of Right of Occupancy Order, 2004. Exhibit A: The Certificate of Occupancy issued to Dr. Iwudibia. Exhibit H1: A letter from the Ministry of Lands. These are the basis of the Plaintiff’s title. In other words, the State took a stand and was heard in this consolidated suit. Their involvement as a witness demonstrates their awareness of the suit and participation in the suit. I hold the view that a necessary party’s interests have been represented if they had an opportunity to participate, even if not formally joined. Consequently, a necessary party, having taken part in the proceedings as a witness, may be precluded from later challenging the judgment or seeking to litigate the same issues in future proceedings. The necessary parties are represented.
There was a testimony about family meetings. Emmanuel Ukachulam (the claimant) in Suit No HOW/141/2011 asserted that he purchased the property in 1991 from Chief Onyema Obi Oparaugo II for N25,000.. Specifically, PW3 (Sir Sabastine Obialor) testified that on December 21, 1991, he accompanied the claimant to the Oparaugo family, where the claimant paid an agreed sum for the property. Though the court found that the 1956 lease agreement granted to Mark Ukachulam was reaffirmed in 1971 (Exhibit J), and the court found that the lease was still in effect in 1991, therefore, Chief Onyema Obi Oparaugo II had no legal title to sell the property to the Claimant. The court deemed the Power of Attorney (Exhibit A) and Certificate of Occupancy (Exhibit B) fraudulent, null, and void, as the transaction violated the terms of the existing lease.
However, the court ruled that the N25,000 paid by the Claimant to the Oparaugo family was made on behalf of the Ukachulam family, not for the Claimant’s sole benefit.
The court stated at paragraph 1 page 39 of the judgment Suit No HOW/141/2011 thus: the court found:
No 5 Oparaugo Street is the family property of the Ukachulam family property. In line with the 1956 and 1971 agreement, the N25,000 paid by the Claimant in 1991 was paid on behalf of the Ukachulam family to the Oparaugo family· for the out-right purchase of the property No. 5 Oparaugo Street.
The former lessee (now owner) usually does not need to keep paying rent to themself after buying the property. They no longer owe rent to their previous lessor, who has now sold them the property, because they now fully own it.
If the plaintiff in Suit No HOW/141/2011 had won that case on the basis of the evidence given by Lemmy Oparaugo, it would have been impossible for them to sue the plaintiff to recover the land.
I hold that the write is not incompetent on issue 1. It is struck out on issue 2
I so hold.
I.M.Njaka
Judge
27-11-2024
Appearances: OJ Okoh for the Plaintiff/Respondent
AF Chijioke for the 2nd – 3rd Defendants/Applicants