JWAN v ECOBANK NIGERIA PLC & ANOR

JWAN v ECOBANK NIGERIA PLC & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT JOS

ON TUESDAY, 24TH APRIL, 2018


Appeal No: CA/J/309/20 7
CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

MOSES G. JWAN

(APPELLANT)

AND

ECOBANK NIGERIA PLC
UNITED BANK FOR AFRICA PLC

(RESPONDENTS)


PRONOUNCEMENTS


A. COURT
1. Duty of Court – Duty of Court to consider all issues raised before it

“The Court must say further that it is bewildered that after the lower Court reached its decision that the writ was incompetent on the non-existing ground of its not being properly issued, it failed to go further to render a judgment on the merits of the completed trial before it. The higher Courts have warned severally that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court to, after resolving that issue, even if it is an issue jurisdiction, proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues – see the cases of Ovunwo Vs Woko (2011) 17 NWLR (Pt. 1277) 522, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt. 1307) 170, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.”Per ABIRU, J.C.A. read in context

B. JUSTICE
2. Administration of Justice – Principles guiding the administration of justice

Guiding principles in the administration of justice

“Before concluding this appeal, this Court considers it pertinent to reiterate that it is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice. It is matters like the present one that leaves the entire judicial system open to ridicule and the risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) made this point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 220 thus:
“I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior Courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.”Per ABIRU, J.C.A. read in context

C. PRACTICE AND PROCEDURE
3. Service of Originating Processes –

Position of the law on the issuance and service of originating processes

“Reading through the records of this appeal, this Court must say that the issue of non-compliance with the provisions of Orders 15 Rules (1) and (15) of the High Court of Plateau State (Civil Procedure) Rules of 1987 is one that should not have arisen in the lower Court and should never have been brought before this Court. This case is a sad commentary for our justice delivery system and it is a perfect example of how the carelessness of a trial Court and the incompetence of Counsel to the parties can derail the normal course of proceedings in a matter. The records of this appeal was compiled by the Registry of the lower Court, with the apparent consent of the parties, and transmitted to this Court on the 12th of September, 2017 and its contents were duly certified as the true copies of the processes that were filed by the parties in the lower Court. There is no contention amongst the parties that the processes contained in the records of appeal were the self same processes filed and served by the parties in the lower Court. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court – Oseni Vs Bajulu (2009) 18 NWLR (Pt. 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt. 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt. 1269) 145.
This Court is empowered to look into the contents of the records of appeal and make use of documents and facts contained therein and draw inferences there from – West African Provincial Insurance Co. Ltd Vs Nigerian Tobacco Co Ltd (1987) 2 NWLR (Pt. 56) 299, Funduk Engineering Co. Ltd Vs McArthur (1995) 4 NWLR (Pt. 392) 640, Texaco Panama Inc Vs Shell Petroleum Development Co. Ltd (2002) 5 NWLR (Pt. 759) 209, Congress for Progressive Change Vs Independent National Electoral Commission (2011) 18 NWLR (Pt. 1279) 493 at 567 D-H. The records show that the suit was commenced by a writ of summons dated 15th of October, 2012 and which was subsequently amended with the leave of Court on the 15th of January, 2013. The parties filed their respective processes and contested the matter on the merit at trial through the calling of witnesses and they filed their respective final address and the matter was adjourned for judgment. On the 23rd of June, 2017, the day fixed for judgment, the lower Court made the following comments:

“The case is for judgment today. However, while writing the judgment of court, it was observed that the writ of summons in this suit dated 15th October, 2012 was never issued by a Judge. The amended writ dated 15th January, 2013 was also never issued by a Judge. Based on the foregoing and bearing in mind that the writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons, it behooves on this Court to draw the attention of counsel in this matter to this observations and to call on counsels to address the Court on the legal effect of this fundamental observation. To give effect to this, I shall allow counsel a short adjournment to enable them file their respective addresses on the effect on non-issuance of a writ of summons on the suit.” This observation led to the Counsel to the parties filing copious written addresses on the alleged non-issuance of the writ of summons. The lower Court left the substance of the matter tried before it and focused its energy on the written addresses of Counsel to the parties on the issue and it delivered a judgment striking out the entire suit as incompetent on the ground that the writ of summons was not properly issued. The entire arguments of Counsel on the issue in the lower Court, the judgment of the lower Court and the entire arguments of all the Counsel in this Court turned on the interpretation and the effect of the provisions of Order 15 Rules (1) and (15) of the High Court of Plateau State (Civil Procedure) Rules of 1987.
Order 15 Rule 1 reads in part that “a writ of summons shall be issued by a Judge or an officer of the Court empowered to issue summons on application” while Order 15 Rule 15 states the “issue of a writ takes place upon its being signed by a Judge or an officer of the Court duly authorized to sign the writ.” It is elementary that in interpreting these provisions the Court is obligated to give the words used therein their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt. 1336) 581, Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt. 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. Applying this principle to the wordings of the provisions, it is clear that to qualify as being issued, a writ of summons does not have to be signed by a Judge, as wrongly insinuated by the lower Court in its comments, and neither does it have to be signed by a Judge and by an officer of Court authorized to sign the writ. It is sufficient if it is signed by an officer of the Court authorized to sign the writ. The word used in the provisions is “or”, not “and”. The word “or” when used in a statute is a disjunctive participle used to express an alternative or to give a choice of one among two or more things – Arubo Vs Aiyeleru (1993) 3 NWLR (Pt. 208) 126 at 141-142 and Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1.

A look through the certified true copies of the writ of summons dated 15th of October, 2012 and of the amended writ of summons dated the 15th of January, 2013 contained in the records of appeal shows on their faces that they were both duly signed and stamped by officers of the High Court of Plateau State who described themselves as Registrar/Authorized Officer. Where then is the non-compliance with the provisions of the Rules of Court on issuance of writ of summons? Where did the question of the incompetence of the writ of summons by reason of non-issuance, and which caused the hullabaloo in the lower Court, and in this appeal, emanate from? It is correct that there is a space meant for the signature of Judge/Authorized Officer left blank and unsigned on the third page of the writ of summons dated the 15th of October, 2012, but this is of no moment as the writ had been signed and stamped by a “Registrar/Authorized Officer” on its second page.
It is settled that Courts have the duty to scrutinize all processes filed before them and to ensure that they are in strict compliance with the relevant laws before taking action on such processes – Abbas Vs Tera (2013) 2 NWLR (Pt 1338) 284. The lower Court completely abdicated this duty and it derailed the course of a matter that had been concluded and ready for judgment by its inept observation. Surprisingly, Counsel to the Appellant, Counsel to the first Respondent and Counsel to the second Respondent followed the lower Court on its voyage to nowhere and none of them had the presence of mind to redirect the lower Court to the proper course of the journey of the case before it. This is utterly disappointing, particularly Counsel to the Appellant. It is the duty of Counsel to bring to the attention of the
trial Court any wrong procedure which might affect his client’s interests and not to expose his client to unnecessary litigation that could result in waste of time and money – Okeke Vs Okoli (2000) 1 NWLR (Pt.

642) 641, Shekse Vs Plankshak (2008) 15 NWLR (Pt. 1109) 105 at 109. Counsel to the Appellant fell appallingly short of his duty to his client.

The writ of summons and the amended writ of summons issued and served in this matter in the lower Court were properly issued and served in compliance with the Rules of the lower Court. The judgment of the lower Court striking out the suit as incompetent on the ground of non-issuance of the writ of summons is baseless and liable to be set aside.
Going forward and even assuming that the writ of summons was indeed not properly issued in accordance with the Rules of Court, the resolution of the issue would turn on the effect of the non-compliance with the provisions of Order 15 Rules 1 and 15 of the High Court of Plateau State Civil Procedure Rules. The question is – where a Judge or other officer authorized by the Court fails to sign a writ of summons, does it amount to a fundamental defect that nullifies the entire proceedings of the Court or a procedural irregularity that can be overlooked. Now, it is trite that Rules of Court are part of the machinery of justice made by the Courts to regulate their proceedings. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of the nature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act and consequently have the force of law. Accordingly, as a general rule, Rules of Court must be obeyed by litigants and they are binding on all the parties before the Court – Aromolaran Vs Oladele (1990) 7 NWLR (Pt 162) 359, Duke Vs Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130, Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt. 1097) 182, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348.

It must, however, be understood that not every non-compliance with the Rules of Court is necessarily fatal to the case of party or to the process filed by a party in a matter. One of the most firmly established principle of judicial adjudication is that the Rules of Court must never be interpreted to defeat the course of justice and that where the effect of a strict adherence to a provision of the Rules of Court will hinder the Court from performing its primary duty of doing substantial justice between parties to a dispute, and cause injustice, the Court must jettison the provision in favour of the doing of substantial justice. This principle has been consistently reiterated by the Supreme Court over the years and a few instances will be mentioned as examples. In UTC (Nig) Ltd Vs Pamotei (1989) 2 NWLR (Pt. 103) 244, Belgore, JSC (as he then was) stated at page 296F that:

“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the courts slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”

In Federal Government of Nigeria Vs 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 way 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.” In Fidelity Bank Plc Vs Monye (2012) 10 NWLR (Pt. 1307) 1, Adekeye, JSC at page 32 F-H made the point thus:

“Rules of Court touch upon the administration of justice. They are promulgated to regulate matters in Court and to assist parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice. The Courts have leaned heavily on the side of doing justice. … The rules must be understood as made with that fundamental principle at the background. Whatever the case may be in the Court proceedings, the rules are no more than an adjunct to the course of justice. The Court must never interpret a rule of Court to defeat access to justice which is guaranteed by the Constitution.”

It is in this wise that the Supreme Court categorically stated that any non-compliance with the Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice or affects substantial justice in the trial of a case; not when it in no way affects the justice of the trial of a case – Okoye Vs Nigerian Construction Co Ltd (1991) 6 NWLR (Pt. 199) 501, Famfa Oil Ltd Vs Attorney General, Federation (2003) 9-10 SC 31, Osigwe Vs PSPLS Management Consortium Ltd (2009) 3 NWLR (Pt. 1128) 378, Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351, Adama Vs State (2018) 3 NWLR (Pt. 1605) 94. The drafters of the High Court (Civil Procedure) Rules of practically every State, including Plateau State, recognized this principle and they have a provision in all the Rules of Court to the effect that “where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”

Speaking specifically on the procedure in the Rules of Court guiding issuance of originating process, the Supreme Court has held that it is purely an administrative matter of the Court’s Registry which does not involve a claimant or plaintiff and that failure to sign an originating process by the designated officer is a mere procedural irregularity which cannot by fig of imagination be placed on the shoulders of the claimant or plaintiff who has done all that is necessary to file and commence the action – Alawode Vs Semoh (1959) SCNLR 91, Saude Vs Abdullahi (1989) 4 NWLR (Pt 116) 387, Ogbuanyinya Vs Okudo (1990)
4 NWLR (Pt. 146) 551, Ede Vs Mba ( 11) 18 NWLR (Pt 1278) 236. In Famfa Oil Ltd Vs Attorney General, Federation supra, the Supreme Court explained the point thus:

“Once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for 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 processes or the writ of summons or issuing of the relevant process or the writ of summons or issuing of an originating summons by a Judge or other official 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 penalized for mistakes of the Court and its staff in connection with such internal matters particularly where no miscarriage of justice … is occasioned.”
This position of the Supreme Court has also been followed by this Court in several cases, such as Fada Vs Naomi (2002) 4 NWLR (Pt. 757) 318, S. C. C. (Nig) Ltd Vs Elemandu (2005) 7 NWLR (Pt. 923) 28, Shuaibu Vs Mu’azu (2007) 7 NWLR (Pt. 1033) 271, Solidarity International Ventures Ltd Vs Afro-Shelters Ltd (2010) 1 NWLR (Pt. 1175) 209, Usman Vs Tamadena Company Ltd (2015) LPELR 40376(CA), Citec International Estates Ltd Vs Yusuf (2016) LPELR 40207(CA).
The records of appeal show that the decision of the Supreme Court in Famfa Oil Ltd Vs Attorney General, Federation supra, which dealt directly with the effect of non-compliance with provisions similar to Order 15 Rules 1 and 15 of the Plateau State Rules, was brought to the attention of the lower Court and that the lower Court sought to distinguish the case. The lower Court rather relied on the decision of the Supreme Court in Agip Nig Ltd Vs Agip Petroli International (2010) 5 NWLR (Pt. 1187) 348 which had to do with the failure to commence an action by the mode prescribed by the provisions of Companies and Allied Matters Act and failure to seek leave to commence an action where leave was required. It is a principle of judicial precedent that it is wrong for a Court to follow a decision which is based on facts that are not on all fours with a present case while ignoring another decision based on facts that are on all fours with a present case -Atolagbe Vs Awuni (1997) 9 NWLR (Pt. 522) 536. The applicable case law authorities of the Supreme Court to the present case were the decisions in Alawode Vs Semoh supra, Saude Vs Abdullahi supra, and Famfa Oil Ltd Vs Attorney General, Federationsupra and not the case Agip Nig Ltd Vs Agip Petroli International supra relied upon by the lower Court.

Counsel to the first and second Respondents were aware of this reality and they laboured, albeit unsuccessfully, to distinguish those cases from the present case. The raison d’entre of those decisions was stated by the Supreme Court in Famfa Oil Ltd Vs Attorney General, Federation supra thus:
“The Supreme Court has consistently shifted from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters and now pursues, instead, 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 procedural irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, the Court should ignore mere technicalities in order to do substantial justice.” This principle resonated through the lead and contributory judgments of the five Justices who heard the matter and it is applicable in the present case. The writ of summons and the amended writ of summons in the instant case were served on the Respondents, as defendants, and neither of them complained of non-signing of the processes. The parties filed their processes in the matter, conducted trial and filed their final addresses and at no time did either of the Respondents raise the issue. It was the lower Court that, refusing to mind its business, on its own brought up the issue. There was no miscarriage of justice occasioned by the alleged non-signing of the writ of summons. The lower Court failed to adhere to the admonition given by Edozie, JSC in Buhari Vs Obasanjo (2003) 17 NWLR (Pt. 850) 587 thus:

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality

… or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

The decision of the lower Court striking out the suit as incompetent on the ground of non-issuance of the writ of summons is thus also without merit.”Per ABIRU, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABIRU, J.C.A.


This appeal is against the judgment of the High Court of Plateau State delivered by Honorable Justice I. I. Kunda in Suit No PLD/J339/2012 on the 14th of July, 2017. The action in the lower Court was commenced by the Appellant, as plaintiff, against the Respondents, as first and second defendants respectively. The action was commenced by a writ of summons dated 15th of October, 2012 and which was subsequently amended with the leave of Court on the 15th of January, 2013. The action was commenced before late Justice A. N, Damdan and, upon his demise, the matter was reassigned to Honorable Justice I. I. Kunda.

Trial commenced and was concluded by the parties and they filed and adopted their respective final written addresses and the matter was adjourned for judgment. On the day fixed for judgment, the lower Court informed Counsel to the parties that it noticed that neither the original writ of summons nor the amended writ of summons was issued by the Honorable Judge before whom the action was commenced or by any authorized officer of the Court and it directed the Counsel to file written addresses of arguments on the validity or otherwise of the writ of summons and its effect on the competence of the suit. Counsel to the parties filed their respective written addresses on the issue. The lower Court thereafter delivered a judgment striking out the action for being incompetent. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing eight grounds of appeal and dated the 18th of July, 2017 against it.

In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 10th of October, 2017 on the 13th of October, 2017. In response, Counsel to the first Respondent filed a brief of arguments dated the 20th of November, 2017 on the 21st of November, 2017 and the brief of arguments was deemed properly filed and served by this Court on the 27th of November, 2017. Counsel to the Appellant filed a reply brief of arguments to the first Respondent’s brief of arguments and it was dated and filed on the 27th of November, 2017. On his part, Counsel to the second Respondent filed a brief of arguments dated the 13th of November, 2017. Counsel to the Appellant also filed a reply brief of arguments to the second Respondent’s brief of arguments and it was dated the 24th of November, 2017 and filed on the 27th of November, 2017. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submission in the appeal.

Counsel to the Appellant formulated one issue for determination in the appeal and it was – whether, having regard to the Plateau State High Court Civil Procedure Rules 1987, as amended, the cardinal principle of interpretation and the interest of justice, the learned trial Judge was right in striking out the suit for non-issuance of the writ of summons . In arguing the issue for determination, Counsel to the Appellant referred to the provisions of Order 5 Rules 1 and 15 of the High Court of Plateau State Civil Procedure Rules which say that a writ of summons shall be issued by a Judge or an officer of the Court empowered to issue summonses, on application and that the issue of a writ takes place upon its being signed by a Judge or an officer of the Court authorized to sign writ. Counsel stated that in determining the effect of non-compliance with the provisions, the lower Court confined itself only to the provisions of Order 5 Rules 1 and 15 on the ground that the words were plain, unambiguous and clear. Counsel stated that the approach of the lower Court was wrong in view of the provision of Order 2 Rule 1(1) of the Rules of Court which provides that the failure of a Judge or authorized officer to sign a writ of summons issued by the Court Registry is an irregularity and it does not render the writ of summons fundamentally defective and that the lower Court did not refer to any provision of the Rules of Court in coming to the conclusion that failure to sign a writ of summons by a Judge or other authorized officer of Court rendered the writ incompetent. Counsel stated that the lower Court relied on judicial authorities in coming to the conclusion without first assuring that the provisions of the Rules of the Courts that decided those matters were the same as those of the High Court of Plateau State and that it is trite that Rules of one Court are not applicable to another Court unless they are shown to be the same or expressly made applicable to the other Court and he referred to the case of Tukur Vs Government of Gongola State (1988) 1 NWLR (Pt. 68) 38.

Counsel stated further that the law is that the issuance of a writ of summons is the duty of the Court and it is not the business of the party or of his Counsel and that once the party or his Counsel has done all that is required of him to do in having the writ of summons issued, any defect in the issuance of the writ cannot be visited on the party and he referred to the case of Famfa Oil Ltd Vs A. G. Federation (2003) 18 NWLR (Pt. 852) 453 and Fidelity Bank Plc Vs Monye (2012) 1 MRSCJ 48. Counsel stated that it was not in dispute in the matter that the Appellant, as plaintiff, did all that was required of him to have the lower Court issue the writ of summons and that equity looks on as done that which ought to be done and that the lower Court, being a Court of equity and law, ought to have leaned more towards equity in its approach and he referred to the cases of Eze Vs Gov, Abia State (2014) 1 NWLR (Pt. 1426) 192 and UBN Plc Vs Astra Builders WA Ltd (2010) 5 N W L R ( P t . 1 1 8 6 ) 1 a s w e l l a s V e r i t a s Insurance Company Ltd Vs Citi Trust Inv. Co. Ltd (1993) 3 NWLR (Pt. 281) 349.

Counsel stated that the suggestion of the lower Court that the Appellant ought to have done more to ensure that the writ of summons was signed by the appropriate person before the service of same was to expect the Appellant to do more than was in tandem with normal practice and procedure in the filing of a writ of summons and that the law does not place any other burden on a party than to make his claim as required by law and deliver same to the Registry of the Court and he referred to the case of Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236. Counsel stated that rather the law places a duty on the Respondents in proceedings before a Court to raise the issue of non-compliance with the Rules of Court timeously before taking any step and that failure to do so amounted to a waiver and he referred to the provision of Order 2 Rule 2(1) of the Rules of Court and the case of Shuaibu Vs Mu’azu (2014) 8 NWLR (Pt. 1409) 207. Counsel stated that the Respondents in the instant case were served with the original writ of summons and that they raised no issues with its issuance and they filed all their necessary processes and participated fully at the trial and that it was the trial Court that raised the issue at the eleventh hour and failed to treat it as an irregularity, as held in the case of Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387. Counsel stated that all the case law authorities relied upon by the lower Court in coming to its decision was inapplicable and that the lower Court was presented with applicable case law authorities, but it declined to rely on them.

Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Appellant and to find merits in and allow the appeal and set aside the judgment of the lower Court and to remit the case file back to the lower Court to pronounce judgment in the matter.

On his part, Counsel to the first Respondent also formulated one issue for determination in the appeal and it was – whether a proceeding conducted on the basis of an invalid writ is competent? In arguing the issue for determination, Counsel also referred to the provisions of Order 5 Rules 1 and 15 of the High Court of Plateau State Civil Procedure Rules 1987 on the issuance of a writ of summons and stated that by said provisions, it was mandatory for a writ of summons to be issued under the hand of a Judge or an authorized officer of Court before a suit can be said to be properly initiated and that the non-signature of a Judge or such authorized officer is a fundamental defect which cannot be cured or waived and he referred to the unreported decision of this Court in Appeal No CA/J/265/2010 – Anunobi Vs Hassan & Anor delivered on the 5th of July, 2013. Counsel stated that the law is settled that a valid originating process is a sine-qua-non for the competence of the proceeding that follows it or that is initiated by that process and he referred to the cases of Kente Vs Ishaku (2017) 15 NWLR (Pt. 1587) 94, Eliagwu Vs Tong (2016) 14 NWLR (Pt. 1532) 165 and Ola-Iya Vs Lasisi (2015) 5 NWLR (Pt. 1400) 269.

Counsel stated that the arguments of Counsel to the Appellant on the Court not visiting the failure of signature on the writ of summons on the Appellant and the cases referred to by Counsel were in applicable in this case as the facts of this case differed from the situation in those cases and that the non-compliance in the instant case was not just a mere non-compliance with the Rules of Court, but non-compliance with the due process of law which is mandatory and a condition precedent to the exercise of jurisdiction by the lower Court. Counsel stated that, as rightly noted by the lower Court, the obligation of the Appellant did not end with his filing his processes in the Registry of the lower Court and that the Appellant was also duty bound to ensure that the writ, being an initiating process was validly issued before proper arrangement is made for service of it. Counsel stated that the principle of mistake of Counsel cannot avail the Appellant because even though the blunder of non-signing of the writ was not occasioned by him, the mistake does not go merely to form but to the substance of the case and it affected the jurisdiction of the lower Court and he referred to the cases of Agip Nig Ltd Vs Agip Petroli Int’l (2010) 5 NWLR (Pt 1187) 348 and Mobil Prod. (Nig) Unltd. Vs Monokpo (2003) 18 NWLR (Pt 852) 346.

Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the first Respondent and to find not merit in the appeal, to dismiss same and affirm the judgment of the lower Court.

Counsel to the second Respondent similarly formulated one issue for determination in the appeal and this was – whether having regard to the Plateau State High Court Civil Procedure Rules 1987, as amended, as it concerns issuance of writ of summons, the learned trial Judge was right in striking out the Appellant’s suit for the non-issuance of the writ of summons in the suit? In arguing the issue for determination, Counsel stated that before a suit is competent in law, the jurisdiction of a Court to hear same must first be determined and activated and he thereafter referred to the conditions listed in the case of Madukolu Vs Nkemdilim (1962) 2 All NLR 581 as the determinants of the jurisdiction of a Court and stated that the issue in this appeal turned on whether the matter was commenced in the lower Court by due process of law and upon the fulfillment of any condition precedent. Counsel referred to the provisions of Order 5 Rules (1) and (15) of the High Court of Plateau State Rules and stated that the signing of a writ by a Judge or by an authorized officer of the Court was a mandatory condition precedent to giving life to a writ of summons and he referred to the unreported decision of this Court in Appeal No CA/J/265/2010 – Anunobi Vs Hassan & Anor delivered on the 5th of July, 2013.

Counsel stated that the provisions of the Rules of Court are clear and unambiguous and that they must be given their literal and ordinary meaning, even where such may create inconveniences and he referred to the cases of Ugwu Vs Ararume (2008) 12 NWLR (Pt. 1048) 365 and FBN Plc. Vs Maiwada (2013) 5 NWLR (Pt. 1348) 444. Counsel stated that the position is that where a writ has not been issued, as in the instant case, it is void ab initio irrespective of the case presented by the parties and he referred to the cases of Kida Vs Ogunmola (2006) LPELR 1690 (SC),

The Owners of the MV ‘MSC Agata” Vs Nestle Nigeria Plc (2012) LPE R 9851(CA) and NNPC Vs Elumah (1997) 7 NWLR (Pt. 492) 195. Counsel stated that the reliance placed by Counsel to the Appellant on the provisions of Order 2 Rule 1 of the Rules was inappropriate as the provisions could only come into effect when the jurisdiction of the trial Court has been properly activated and that where a condition precedent to the jurisdiction of the lower Court was not complied it, it was not a matter of irregularity. Counsel stated that the several cases relied upon by Counsel to the Appellant were also inapplicable to the facts and circumstances of the present case because the relevant facts and circumstances in the cases are different. Counsel stated that it has become sacrosanct that Rules of Court are obeyed and it is the duty of the Court to enforce the observance of the Rules of Court and he referred to the case of Ibitoye Vs Nigerian Navy Board (2016) LPELR 40058(CA).

Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the second Respondent and to find no merit in the appeal, to dismiss same and affirm the judgment of the lower Court.

Reading through the records of this appeal, this Court must say that the issue of non-compliance with the provisions of Orders 5 Rules (1) and (15) of the High Court of Plateau State (Civil Procedure) Rules of 1987 is one that should not have arisen in the lower Court and should never have been brought before this Court.

This case is a sad commentary for our justice delivery system and it is a perfect example of how the carelessness of a trial Court and the incompetence of Counsel to the parties can derail the normal course of proceedings in a matter. The records of this appeal was compiled by the Registry of the lower Court, with the apparent consent of the parties, and transmitted to this Court on the 12th of September, 2017 and its contents were duly certified as the true copies of the processes that were filed by the parties in the lower Court. There is no contention amongst the parties that the processes contained in the records of appeal were the self same processes filed and served by the parties in the lower Court. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court – Oseni Vs Bajulu (2009) 18 NWLR (Pt. 172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt. 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt. 1269) 145.

This Court is empowered to look into the contents of the records of appeal and make use of documents and facts contained therein and draw inferences there from – West African Provincial Insurance Co. Ltd Vs Nigerian Tobacco Co Ltd (1987) 2 NWLR (Pt. 56) 299, Funduk Engineering Co. Ltd Vs McArthur (1995) 4 NWLR (Pt. 392) 640, Texaco Panama Inc Vs Shell Petroleum Development Co. Ltd (2002) 5 NWLR (Pt. 759) 209, Congress for Progressive Change Vs Independent National Electoral Commission (2011) 18 NWLR (Pt. 1279) 493 at 567 D-H. The records show that the suit was commenced by a writ of summons dated 15th of October, 2012 and which was subsequently amended with the leave of Court on the 15th of January, 2013. The parties filed their respective processes and contested the matter on the merit at trial through the calling of witnesses and they filed their respective final address and the matter was adjourned for judgment. On the 23rd of June, 2017, the day fixed for judgment, the lower Court made the following comments:

“The case is for judgment today. However, while writing the judgment of court, it was observed that the writ of summons in this suit dated 15th October, 2012 was never issued by a Judge. The amended writ dated 15th January, 2013 was also never issued by a Judge.

Based on the foregoing and bearing in mind that the writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons, it behooves on this Court to draw the attention of counsel in this matter to this observations and to call on counsels to address the Court on the legal effect of this fundamental observation. To give effect to this, I shall allow counsel a short adjournment to enable them file their respective addresses on the effect on non-issuance of a writ of summons on the suit.”

This observation led to the Counsel to the parties filing copious written addresses on the alleged non-issuance of the writ of summons. The lower Court left the substance of the matter tried before it and focused its energy on the written addresses of Counsel to the parties on the issue and it delivered a judgment striking out the entire suit as incompetent on the ground that the writ of summons was not properly issued. The entire arguments of Counsel on the issue in the lower Court, the judgment of the lower Court and the entire arguments of all the Counsel in this Court turned on the interpretation and the effect of the provisions ofOrder 5 Rules (1) and (15) of the High Court of Plateau State (Civil Procedure) Rules of 1987. Order 5 Rule 1reads in part that “a writ of summons shall be issued by a Judge or an officer of the Court empowered to issue summons on application” while Order 5 Rule 15 states the “issue of a writ takes place upon its being signed by a Judge or an officer of the Court duly authorized to sign the writ.” It is elementary that in interpreting these provisions the Court is obligated to give the words used therein their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt. 1336) 581, Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt. 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR ( t 1370) 133. Applying this principle to the wordings of the provisions, it is clear that to qualify as being issued, a writ of summons does not have to be signed by a Judge, as wrongly insinuated by the lower Court in its comments, and neither does it have to be signed by a Judge and by an officer of Court authorized to sign the writ. It is sufficient if it is signed by an officer of the Court authorized to sign the writ. The word used in the provisions is “or”, not “and”. The word “or” when used in a statute is a disjunctive participle used to express an alternative or to give a choice of one among two or more things – Arubo Vs Aiyeleru (1993) 3 NWLR (Pt. 208) 126 at 141-142 and Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1.

A look through the certified true copies of the writ of summons dated 15th of October, 2012 and of the amended writ of summons dated the 15th of January, 2013 contained in the records of appeal shows on their faces that they were both duly signed and stamped by officers of the High Court of Plateau State who described themselves as Registrar/Authorized Officer. Where then is the non-compliance with the provisions of the Rules of Court on issuance of writ of summons? Where did the question of the incompetence of the writ of summons by reason of non-issuance, and which caused the hullabaloo in the lower Court, and in this appeal, emanate from? It is correct that there is a space meant for the signature of Judge/Authorized Officer left blank and unsigned on the third page of the writ of summons dated the 15th of October, 2012, but this is of no moment as the writ had been signed and stamped by a “Registrar/Authorized Officer” on its second page.

It is settled that Courts have the duty to scrutinize all processes filed before them and to ensure that they are in strict compliance with the relevant laws before taking action on such processes – Abbas Vs Tera (2013) 2 NWLR (Pt 1338) 284. The lower Court completely abdicated this duty and it derailed the course of a matter that had been concluded and ready for judgment by its inept observation. Surprisingly, Counsel to the Appellant, Counsel to the first Respondent and Counsel to the second Respondent followed the lower Court on its voyage to nowhere and none of them had the presence of mind to redirect the lower Court to the proper course of the journey of the case before it. This is utterly disappointing, particularly Counsel to the Appellant. It is the duty of Counsel to bring to the attention of the trial Court any wrong procedure which might affect his client’s interests and not to expose his client to unnecessary litigation that could result in waste of time and money – Okeke Vs Okoli (2000) 1 NWLR (Pt. 642) 641, Shekse Vs Plankshak (2008) 15 NWLR (Pt. 1109) 105 at 109. Counsel to the Appellant fell appallingly short of his duty to his client.

The writ of summons and the amended writ of summons issued and served in this matter in the lower Court were properly issued and served in compliance with the Rules of the lower Court. The judgment of the lower Court striking out the suit as incompetent on the ground of non-issuance of the writ of summons is baseless and liable to be set aside.

Going forward and even assuming that the writ of summons was indeed not properly issued in accordance with the Rules of Court, the resolution of the issue would turn on the effect of the non- compliance with the provisions of Order 5 Rules 1 and 5 of the High Court of Plateau State Civil Procedure Rules. The question is – where a Judge or other officer authorized by the Court fails to sign a writ of summons, does it amount to a fundamental defect that nullifies the entire proceedings of the Court or a procedural irregularity that can be overlooked.

Now, it is trite that Rules of Court are part of the machinery of justice made by the Courts to regulate their proceedings. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of the nature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act and consequently have the force of law. Accordingly, as a general rule, Rules of Court must be obeyed by litigants and they are binding on all the parties before the Court – Aromolaran Vs Oladele (1990) 7 NWLR (Pt 162) 359, Duke Vs Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130, Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt. 1097) 182, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348.

It must, however, be understood that not every non-compliance with the Rules of Court is necessarily fatal to the case of party or to the process filed by a party in a matter. One of the most firmly established principle of judicial adjudication is that the Rules of Court must never be interpreted to defeat the course of justice and that where the effect of a strict adherence to a provision of the Rules of Court will hinder the Court from performing its primary duty of doing substantial justice between parties to a dispute, and cause injustice, the Court must jettison the provision in favour of the doing of substantial justice. This principle has been consistently reiterated by the Supreme Court over the years and a few instances will be mentioned as examples. In UTC (Nig) Ltd Vs Pamotei (1989) 2 NWLR (Pt. 103) 244, Belgore, JSC (as he then was) stated at page 296F that:

“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the courts slavish to the Rules. This certainly is not the raison d’etre of the Rules of Court.”

In Federal Government of Nigeria Vs 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 way 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.”

In Fidelity Bank Plc Vs Monye (2012) 10 NWLR (Pt. 1307) 1, Adekeye, JSC at page 32 F-H made the point thus:

“Rules of Court touch upon the administration of justice. They are promulgated to regulate matters in Court and to assist parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice.

The Courts have leaned heavily on the side of doing justice.

… The rules must be understood as made with that fundamental principle at the background. Whatever the case may be in the Court proceedings, the rules are no more than an adjunct to the course of justice. The Court must never interpret a rule of Court to defeat access to justice which is guaranteed by the Constitution.”

It is in this wise that the Supreme Court categorically stated that any non-compliance with the Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice or affects substantial justice in the trial of a case; not when it in no way affects the justice of the trial of a case – Okoye Vs Nigerian Construction Co Ltd (1991) 6 NWLR (Pt. 199) 501, Famfa Oil Ltd Vs Attorney General, Federation (2003) 9-10 SC 31, Osigwe Vs PSPLS Management Consortium Ltd (2009) 3 NWLR (Pt. 1128) 37 , Okoro Vs State (2012) 4 NWLR (Pt. 1290) 351, Adama Vs State (2018) 3 NWLR (Pt. 1605) 94. The drafters of the High Court (Civil Procedure) Rules of practically every State, including Plateau State, recognized this principle and they have a provision in all the Rules of Court to the effect that “where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”

Speaking specifically on the procedure in the Rules of Court guiding issuance of originating process, the Supreme Court has held that it is purely an administrative matter of the Court’s Registry which does not involve a claimant or plaintiff and that failure to sign an originating process by the designated officer is a mere procedural irregularity which cannot by fig of imagination be placed on the shoulders of the claimant or plaintiff who has done all that is necessary to file and commence the action – Alawode Vs Semoh (1959) SCNLR 91, Saude Vs Abdullahi (1989)
4 NWLR (Pt 116) 387, Ogbuanyinya Vs Okudo (1990) 4 NWLR (Pt. 146) 551, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236. In Famfa Oil Ltd Vs Attorney General, Federation supra, the Supreme Court explained the point thus:

“Once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for 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 processes or the writ of summons or issuing of the relevant process or the writ of summons or issuing of an originating summons by a Judge or other official 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 penalized for mistakes of the Court and its staff in connection with such internal matters particularly where no miscarriage of justice … is occasioned.”

This position of the Supreme Court has also been followed by this Court in several cases, such as Fada Vs Naomi (2002) 4 NWLR (Pt. 757) 318, S. C. C. (Nig) Ltd Vs
Elemandu (2005) 7 NWLR (Pt. 923) 28, Shuaibu Vs Mu’azu (2007) 7 NWLR (Pt. 1033) 271, Solidarity International Ventures Ltd Vs Afro-Shelters Ltd (2010) 1 NWLR (Pt. 1175) 209, Usman Vs Tamadena Company Ltd (2015) LPELR 40376(CA), Citec International Estates Ltd Vs Yusuf (2016) LPELR 40207(CA).

The records of appeal show that the decision of the Supreme Court in Famfa Oil Ltd Vs Attorney General, Federation supra, which dealt directly with the effect of non-compliance with provisions similar to Order 5 Rules 1 and 15 of the Plateau State Rules, was brought to the attention of the lower Court and that the lower Court sought to distinguish the case. The lower Court rather relied on the decision of the Supreme Court in Agip Nig Ltd Vs Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 which had to do with the failure to commence an action by the mode prescribed by the provisions of Companies and Allied Matters Act and failure to seek leave to commence an action where leave was required. It is a principle of judicial precedent that it is wrong for a Court to follow a decision which is based on facts that are not on all fours with a present case while ignoring another decision based on facts that are on all fours with a present case –Atolagbe Vs Awuni (1997) 9 NWLR (Pt. 522) 536. The applicable case law authorities of the Supreme Court to the present case were the decisions in Alawode Vs Semoh supra, Saude Vs Abdullahi supra, and Famfa Oil Ltd Vs Attorney General, Federationsupra and not the case Agip Nig Ltd Vs Agip Petroli International supra relied upon by the lower Court.

Counsel to the first and second Respondents were aware of this reality and they laboured, albeit unsuccessfully, to distinguish those cases from the present case. The raison d’entre of those decisions was stated by the Supreme Court in Famfa Oil Ltd Vs Attorney General, Federation supra thus:

“The Supreme Court has consistently shifted from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters and now pursues, instead, 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 procedural irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, the Court should ignore mere technicalities in order to do substantial justice.”

This principle resonated through the lead and contributory judgments of the five Justices who heard the matter and it is applicable in the present case. The writ of summons and the amended writ of summons in the instant case were served on the Respondents, as defendants, and neither of them complained of non-signing of the processes. The parties filed their processes in the matter, conducted trial and filed their final addresses and at no time did either of the Respondents raise the issue. It was the lower Court that, refusing to mind its business, on its own brought up the issue. There was no miscarriage of justice occasioned by the alleged non-signing of the writ of summons. The lower Court failed to adhere to the admonition given by
Edozie, JSC in Buhari Vs Obasanjo(2003) 17 NWLR (Pt. 850) 587 thus:

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality … or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.” The decision of the lower Court striking out the suit as incompetent on the ground of non-issuance of the writ of summons is thus also without merit. 

The Court must say further that it is bewildered that after the lower Court reached its decision that the writ was incompetent on the non-existing ground of its not being properly issued, it failed to go further to render a judgment on the merits of the completed trial before it. The higher Courts have warned severally that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court to, after resolving that issue, even if it is an issue jurisdiction, proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues – see the cases of Ovunwo Vs Woko (2011) 17 NWLR (Pt. 1277) 522, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt. 1307) 170,Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.

Also shockingly amazing is the failure of the Counsel to the Appellant to compile the records of the evidence led by the parties before the lower Court and of the final addresses filed by the parties as part of the records of appeal. Perhaps, if Counsel had done so, this Court might have been tempted to exercise its powers under Section 15 of the Court of Appeal Act to evaluate the evidence led and enter judgment as the trial Court should have done. In these circumstances, this case has to be remitted to the lower Court to conclude the matter by delivering its judgment on the merits of the case made out by the parties.

Before concluding this appeal, this Court considers it pertinent to reiterate that it is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice. It is matters like the present one that leaves the entire judicial system open to ridicule and the risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) made this point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 220 thus:

“I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior Courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.”

In conclusion, this Court finds merit in this appeal and it is hereby allowed. The judgment of the High Court of Plateau State delivered by Honorable Justice I. I. Kunda in Suit No PLD/J339/2012 on the 14th of July, 2017 is set aside. The case file of the matter is remitted to the trial Judge with a directive that he should do the needful to proceed to enter his judgment on the merits of the case canvassed before it by the parties. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.

ONYEMENAM, J.C.A.

I had the benefit of reading in draft copy the judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I am in agreement with the reasoning and the Conclusion arrived therein that the appeal has merit, it is hereby allowed. I set aside the judgment of the High Court of Plateau State delivered on 14th July, 2017 by I. I. Kunda, J. in Suit No. PLD/J339/2012

I abide by the consequential orders made in the lead judgment and order as regards to costs.

WILLIAMS-DAWODU, J.C.A.

I had the opportunity to read in draft of the lead Judgment delivered by my learned brother, HABEEB ADEWALE ABIRU, JCA and I agree entirely with the reasoning and conclusions drawn therein.

In consequence, I also allow the appeal and hereby set aside the Judgment of the Court below delivered on July 14th, 2017. I abide by the orders made therein and make no order as to costs.

Appearances:

P. A. Guzol For Appellant(s)

Leo M. Ebi with him, S. I. David and J. C. Asogwa – for

1st Respondent

L. E. Anyia with him, Ifeoma Okeke, A. R. Dasoem,

P. A. Okereke, D. K. Miner and Excellency Idisi-for 2nd Respondent For Respondent(s)