Ochie & Anor V. Isiagu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling)

The motion on notice dated 24/9/2009 and filed on the same day before this Court was brought by the Appellants/Applicants pursuant to Section 15 of the Court of Appeal Act and Orders 4, 6(15), 7(10) & 8(1)(4) of the Court of Appeal Rules. The orders which are being sought in the motion by the Appellants/Applicants (who will hereinafter simply be referred to as the Applicants are as follows: –

1. Leave of the Hon. Court to amend the Notice and Grounds of Appeal by including the name and address of service of the 2nd respondent Peoples Democratic Party (P.D.P) in paragraph 5 of the Notice and Grounds of Appeal.
2. An order deeming as properly filed and served a Notice of Appeal containing the name and address of the 2nd Respondent Peoples Democratic Party (P.D.P) in paragraph 5 of the Notice of Appeal the Appropriate (sic) filing fees having been paid.
3. Leave of the Hon. Court to compile and transmit the Record of appeal and all other process out of time.
4. Extension of time within which the Appellants/Applicants may couple (sic) and transmit the Record of Appeal.
5. An order deeming as properly compiled, lodged in the Hon. Courts (sic) Registry and served on the Parties the Record of Appeal already transmitted and served.
6. An order of the hon. (sic) Court consolidating this motion with the motions dated/filed on 25-06-09 & 09/07/09 filed by the 1st Respondents respectively.
7. An order deeming as properly filed and served the Appellants (sic) brief of argument the Appropriate (sic) filing fees having been paid.

The grounds of the application as set out in the motion paper are as follows:-

1. THE APPELLANTS/APPLICANTS filed and served the Notice of Appeal within time but the said notice did not contain the name and address of the 2nd Respondent ‘ Peoples Democratic Party (P.D.P.) in paragraph 5 of the Notice of Appeal as required by law.
2. The Appellants/Applicants (sic) counsel’s omission to state the name and address of service of 2nd respondent (P.D.P) in paragraph 5 of the Notice of Appeal is a curable defect.
3. The Record of appeal was compiled and lodged in the Registry of the Hon Court outside the period permitted by law
4. The Appellants/Applicants filed and served their Brief based on the Record of Appeal compiled and transmitted out of time.
5. The 1st Respondent and 3rd – 5th Respondents filed separate Motions on Notice praying for the striking out of the Appellants/Applicants (sic) Record of Appeal and brief of Argument

The motion was entertained by the Court on 1/3/2010 C.J Okoli-Akirika, learned counsel for the Applicants in moving the motion relied on its supporting affidavit Dwelling on prayers 1 and 2 in the motion paper, learned counsel submitted that the omission sought to be cured is not fatal as it is a curable defect. In respect of prayers 3, 4 and 5, learned counsel submitted that the court has the power to extend time, He referred to Order 7 Rule 10 of the 2007 Rules of this Court in this regard. Learned counsel applied to withdraw prayer 7 as the brief was filed within time having regard to the date he collected the Record.

Mike Okoye, learned lead counsel for the 1st Respondent did not oppose the withdrawal of prayer 7. He however urged that it be dismissed as it had been argued. Learned lead counsel relied on the counter affidavit filed by the Respondent in opposing the instant motion.

In respect of prayers 1 and 2, learned lead counsel relied on paragraphs 5 and 6 of the counter affidavit. In respect of prayer 3, learned lead counsel submitted that since extension of time was not first sought, the prayer was liable to be dismissed.

It is the further submission of learned lead counsel that if prayer 3 is dismissed, prayers 4 and 5 should also be automatically dismissed Learned lead counsel said that no record was exhibited as it ought to have been exhibited. That the record sought to be entered ought to have been exhibited to enable the adversary attack same. Dwelling on the prayer for consolidation, learned lead counsel submitted that it is governed by rules specifically made for the purpose and that the rules do not provide for the procedure now being adopted. It is the submission of learned lead counsel that it is different matters that are consolidated; that interlocutory matters in the same suit cannot be consolidated. He urged that the instant motion be dismissed so Ibrahim (Asst. Chief legal Officer, INEC) learned counsellor the 3rd & 5th Respondents opposed the motion before the Court In doing this learned Ass. CLO associated himself with the submissions of learned lead counsel for the 1st Respondent. He also submitted that Order 6 Rule 2 of the 2007 Rules of this Court was not complied with. He urged that the motion be dismissed.

Learned counsel for the Applicants replying on points of law, submitted to the effect that the wrong numbering of the prayers set out in the motion paper, is his act and that the law does not penalise the client for omission of counsel, learned counsel further said that the wrong numbering of the prayers is not fatal. It is also his submission that the issue is a technical one.

The entitlement of the Applicants to the Orders sought by them will be considered in the order the prayers in that regard have been arranged in the motion paper, i.e seriatim.

The first Order which the Applicants seek is one for the leave of this Court to amend the Notice and Grounds of Appeal by including the name and address for service of the 2nd Respondent, i.e. (PDP) in paragraph 5 of the Notice and Grounds of Appeal.

The Rules of this Court in Order 6 Rule 2(1) provide thus:-

All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal’) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the name and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and shall also have endorsed on it an address for service.

It is glaring having regard to the provision of the Rules of this Court reproduced above, that the first Order being sought by the Applicants in the instant application, is to enable them now provide in the Notice of Appeal the address for service of the 2nd Respondent which should have been provided therein as at the time of the filing of the Notice of Appeal in the lower Tribunal.

The law is settled concerning Rules of Court. It is that Rules of Court must always be complied with or obeyed. However the Court in the knowledge that its Rules are designed to aid the attainment of justice and not to thwart it, has in deserving situations not penalised the failure of parties to adhere strictly to the same with the dear or severe consequences which failure should ordinarily attract. This is however not to say that the Court will oblige a party an Order to regularise his failure to comply with its Rules, as of course or for the mere asking. The position of the law as earlier stated is that rules of court must prima facie be obeyed and if there is non-compliance with the rules, the noncompliance must be explained and if not explained, then there will be no basis upon which the indulgence of the court can be granted or predicated.