➥ CASE SUMMARY OF:
ALH. BALA USMAN v. TAMADENA & COMPANY LTD & ORS (2015) – CA
by PipAr Chima
Court of Appeal – CA/K/95/2009
➥ JUDGEMENT DELIVERED ON:
Friday, the 22nd day of May, 2015
➥ AREA(S) OF LAW
Signing of process.
➥ NOTABLE DICTA
⦿ WHERE RULES OF COURT MUST BE COMPLIED WITH
Rules of Court are purposely made to be obeyed and followed, therefore all procedure set by the rules must be complied with. However, where in the course of following the rules some errors or mistakes are committed or omitted, such error or mistakes would not out rightly render the proceedings a nullity. Depending on the circumstance of each particular case, where the noncompliance has occasioned miscarriage of justice or where the right of the adverse party will be affected, the Court shall not treat the non-compliance as a mere irregularity and as such mandate the rules to be followed or nullify the proceedings as the case may be. But in a situation where it has not occasioned miscarriage of justice it shall be treated as a mere irregularity and should not vitiate the proceedings. This is because all rules of Court are made in aid of justice and that being so, the interest of justice will have to be given priority over any rule, compliance of which will lead to outright injustice. The Rules are not sine quo non in the determination of a case and therefore not immutable. – Abba Aji JCA.
Alh. Bala Usman.
1. Tamadena & Company Ltd
2. Galadima Dzarma Laushi
3. A.G. of Kaduna State
4. Bureau for Lands, Survey and Country Planning, Kaduna State
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.C.A
⦿ FOR THE APPELLANT
S.O. Omoloba Esq.
⦿ FOR THE RESPONDENT
Ayodeji Olabode, Esq.
➥ CASE HISTORY
This is an appeal against the ruling of Hon. Justice Esther Inuwa of Kaduna State High Court in Suit No. KD/KAD/418/2008, delivered on 4/2/2009, wherein the Appellants motion seeking to set aside the 1st and 2nd Respondents writ of summons for want of issuance on the basis that it was not signed by the Registrar of the Court as required by the rules of Court, was dismissed by the learned trial judge. Being dissatisfied the Appellant has appealed before this court.
The 1st and 2nd Respondents as plaintiffs’ at the lower Court claims against the Appellant/Defendant as per Paragraph 19 of the statement of claim dated 18th September 2008 as follows, inter alia:
a. A declaration that the 1st plaintiff is the beneficial owner of the plot of Land Lying and situate at No. 6 Road ‘N’ on TPO 460A, extension of light industrial layout, Tudun Wada, Kaduna covered by Certificate of Occupancy no. KD. 901 dated 27th June 1998 and the 2nd Defendant has a subsisting equitable interest over the said plot of Land by virtue of the Sale Agreement dated 22nd December 1997.
On its part the Appellant said that on 23/6/2000 the Governor of Kaduna State granted a Certificate of Occupancy over same plot of land with No. KD.2576 for the plot with TOP 460 A to Umura Ventures Nigeria Ltd which was later assigned to him through a Deed of Assignment dated 23/3/2008. That he constructed the said fence before the commencement of the suit.
➥ ISSUE(S) & RESOLUTION
I. Whether non-compliance with the Rules of the Court requiring the Registrar of the Lower Court to sign (seal) a writ of summons render the writ a nullity or a mere irregularity.
In the instant case, the default, mistake or error that resulted in the non-compliance with the rules was that of the Court’s Registry and not the fault of the 1st and 2nd Respondents. The Respondents complied with all the rules as regard initiation of a suit but the Court on its own part mistakenly omitted to sign and seat the writ. I do not think that it will be fair to visit the sin of the Registrar on that of the 1st and 2nd Respondents.
Having regard to the fact that the Appellant partook in the proceedings and was not misled in any way to have caused or occasioned injustice on him. I am in agreement with the decision of the learned trial judge that Courts are instituted to do justice and it will be abandonment of the Courts responsibility to succumb to a blackmail of a counsel to take backward step in the administration of substantial justice by allowing counsel to rely on technicality to shore up their case. See OKOYE V. NWULU (2001) 11 NWIR (PT. 724) 362 AT 366. The heydays of technicality are now over because the weight of judicial authorities today shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case See AKPKINIOVO V. AGAS (2004) NWLR (PT 881) 39a AT 422 423; and EGOLUM v. OBASANJO (SUPRA).
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ COURT CANNOT BE SHACKLED BY PROCEDURE IRREGULARITY
In Federal Government of Nigeria V. Zebra Energy Ltd (2002) 18 NWLR (pt 798) 162 Belgore JSC (as he then was) again stated at pages 204 – 205 thus: “… Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the Court to arrive at the justice of a case… The Court shall never be shackled by procedure; case is not made for procedure, it is the other was round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities … what is relevant in a case of this nature is the question of justice of the case.”
⦿ JUSTICE DOES NOT RELY IN FORMS & TECHNICALITIES
Oputa, JSC in Bello v. Oyo State (1986) 5 NWLR (Pt 45) 826 at 886: “the picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid to justice…”
➥ REFERENCED (OTHERS)