Alfred Onyemaizu V. J.a. Ojiako(Chief Magistrate’s Court Ekwulobia) & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

C.M. CHUKWUMA-ENEH, J.S.C.

This appeal is against the decision of the Court of Appeal (Enugu Division) delivered on 2/2/2000 upholding the decision of the Anambra State High Court sitting at Ekwulobia striking out the substantive motion on notice otherwise an application in this matter praying for an order of certiorari to quash the decision of His Worship J.O. Ojiako dated 3/11/1993. The applicant and the respondents in the said motion are respectively the appellant and the respondents in this court.

The facts of this matter are not in dispute. The applicant has been arraigned before His Worship J.A. Ojiako charged with the offence of stealing some quantity of corn worth about N500 from a farm and on having been convicted of the offence and sentence to 6 months imprisonment or to pay a fine of N1000 in the alternative, the applicant did not appeal the decision; rather he has filed an application for leave to apply for an order of certiorari to quash the said decision of 3/11/1993; no specific ground for seeking the relief has been set out in the body of the motion ex parte. The trial court obliged accordingly. In consequence therefore, the applicant has filed on 28/3/94 and served on the respondents a substantive motion on notice supported by an affidavit and annexed to it are exhibits 7, 8 and 8A for an order of certiorari to quash the said decision. The said motion on notice has been filed, served on the respondents by a Chief Bailiff of the Ekwulobia High Court and he has filed and affidavit of service sworn to by the said bailiff. The said affidavit of service has been lodged in the court’s filed before 21/4/94, the date fixed for hearing of the motion on notice. The respondents, on their part, in consequence therefore have filed and served on the applicant a notice of preliminary objection praying the trial court to strike out the applicant’s motion on notice on the ground of non-compliance with the provisions of Rule 5(2) and (4) of Oder 37 of the Anambra State High Court (Civil Procedure) Rules 1988. Meanwhile, the matter has been adjourned to 25/4/95 for hearing. On 25/4/1995 i.e the date fixed for hearing of the applicant, the preliminary objection has been moved; however, on an applicant for a date by the applicant on 17/7/95 without leave of court has filed an affidavit deposed to by the applicant himself; it has been headed “Affidavit of Service of motion on Notice filed in Court of 28/3/94” and exhibited to it are two “affidavits of Service” marked exhibits 9 and 10 being the certified copies of the exhibit 8 and 8A of the affidavit filed with motion of 28/3/94. Exhibits 9 and 10 show that the 1st and 2nd respondents have been served a “Writ of Notice” and “Motion on Notice” respectively. The impression has thus been created by the applicant of having complied with Rule 5(4) of Order 37 in support of the applicant. This is the gist of the controversy in this appeal.

It is noteworthy that the affidavit of 17/7/95 has been filed after the motion on notice has been fixed for hearing on 21/4/95 but before his reply to the objection adjourned to 25/4/95 and without leave of court. The trial court nonetheless upheld the preliminary objection and in my view rightly struck out the said motion on notice in its entirety.

The applicant being dissatisfied with the decision has appealed to the Court of Appeal which also has dismissed his appeal. He now has appealed to this court by a notice of appeal dated and filed on 27/4/2000 and containing 6 grounds of appeal. The parties have filed and exchanged their respective briefs of argument. The appellant in his brief of argument filed on 28/3/2007 has raised five issues for determination as follows:

1. Whether the Court of Appeal was right in treating non-compliance with Order 37 Rule 5(1) as mandatory instead of directory.

2.Was the Court of Appeal right in holding that per incuriam and waiver not canvassed in the High Court, if it was right, is it true that no leave was obtained from the Court of Appeal before canvassing them

3. Was the Court of Appeal right in its interpretation of Section 79 of the Evidence Act.
4. Was the Court of Appeal right in treating a more misnomer, at page 144 of the record of proceedings, as fatal to the service on the respondents of the originating motion (notice of Motion)
5. Whether a lower court can in no circumstances depart from the decision of a higher court”

The respondents on their part also have in their joint brief of argument filed on 15/4/2008 therein have raised in substance five issues for determination similar and conterminous in every respect with the five issues raised by the applicant. I find no useful purpose their being replicated here.

The appellant in his brief of argument his case has rambled all over the place that it is not easy to harness his submissions under the respective headings of the six issues he has raised for determination in this appeal. For reasons which will become obvious later in this judgment, I have decided to consider issue one only in detail as a pronouncement on it is capable of resolving the matter in controversy in this appeal particularly as it touches on the competence of the applicant and otherwise capable of eroding a court’s vires to deal with the case. See: F.C.D.A. v. SULE (1994) 3 NWLR (Pt.332) 256 at 282 A-D, ORE v. FALADE (1995) 5 NWLR (Pt.396) 385 at 407; IFEANYI CHUKWU (OSONDU) LTD. v. SOLEH BOUSH LTD. (2000) 5 NWLR (Pt. 656) 322 at 352 and SAPARA v. U.C.H. BOARD (1988) 4 NWLR (p.56) at 61. He has argued on issue one that on a community reading of Rule 5 (5) of Order 37 on the backdrop of Order 26 Rule 5 supports interpreting the provisions of Rule 5(4) of Order 37 as directory and not mandatory thus avoiding all technicalities.

In this wise he has adverted to a number of English cases and their decisions thereof as PEARSE v. MONAICE (1834) 2A and E 84 at page 96, BUSSIEX PERAGE CLAIM (1844) 11 CL & F. 83 and CURTIS v. STOVIN (1889) 22 QBD 513 to urge that the said affidavits i.e. exhibits 8 and 8A having satisfied the provisions of Rule 5(4) of Order 37 should be given effect particularly as Rules 5(5) of Order 37 has given the court the necessary discretion in such matters. He submits that the trial court has acted in error to strike out the motion on notice rather pre-emptorily. He refers to the affidavit sworn to on 17/7/95 and also relies on it and has thus submitted that parties excepting the 1st respondents have been present in court in respect of this case obviously sequel to the service of the applicant and so having waived their rights thereof cannot be heard to say they have not been properly served the processes. He draws a distinction as against where the requirement is statutory, and also is mandatory and the rules of court that are usually construed permissively, and even moreso in this case in the light of Order 26 Rule 5. And so, on matters of practice and procedure generally he also has posited that technicality must yield place to substantial justice, and concludes that the court below has acted in error for not hearing the matter on the merits. This court is urged to exploit Order 8 Rule 12(2) and Section 22, Supreme Court Act 1960 to do substantial justice in this matter. See SURAKATU v. NIGERIA HOUSING DEVELOPMENT CORPORATION SOCIETY LTD. AND ANOR. (1981 1 SC. 26, 33-35 SAUDE v. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387 and 425 and 437 parass. A/C NEMI v. STATE (1994) 10 SCNJ 1 at 18 (supra). Also it is submitted against the background of the exhibits 8 and 8A annexed to the main motion the respondents have not been misled by strict non-compliance with Order 37 Rule 5(4). See: WAPIN v. NIGERIA TOBACCO CO. LTD. AND ANOR. (1987 2 NWLR )Pt. 56) 299 at 306 (paras. C-I) and volume 15 Halsbury Laws of England (3rd Ed.) P.335 paras. 609.

Furthermore, the appellant has opined that there is a substantial conformity with the provisions of Order 37 Rule 5(4) particularly when by a community reading of Order 37 Rule 5(5) and Order 37 Rule 5(4) shows that compliance is not mandatory. He observes that even in a worse case scenario that proof of service can be dispensed with if an affidavit of service is connected to the court file as a court is obliged to take judicial notice of documents in its file.

He also went on to emphasize on the instant objection that since the respondents have appeared at the hearing of the matter without protesting the non-compliance with Order 37 they cannot be heard to do so now albeit belatedly and relies on University of Ife v. Fawehinmi Construction Co. Ltd. (1991) 7 NWLR (Pt.201) 26 at 36.

Respondents case on the brief is carefully and systematically dealt with. The respondents on issue one of their joint brief of argument have examined Order 37 Rule 5(4) under three headings, that is to say, who ought to file the affidavit; when must the said affidavit be filed; what is the legal consequences of failure to file the affidavit in the manner prescribe by the Rule Construing Rule 5(4) of Order 37 they have pointed out the failure of the appellant personally to swear to an affidavit of service as required by Rule 5(4) and refer to the case of State v. Commissioner of Police and Another in Re: Appolos Udo (1987) 4 NWLR (Pt.63) 127 which case has interpreted Order 2 Rule 1 (4) of the Fundamental Human Right (Enforcement Procedure) Rules 1979 in pari material with the instant Order 37 Rule 5(4). They have also pointed out that in regard to when the affidavit must be filed that the affidavit being relied upon has been filed on 17/7/93 belatedly some days after the adjournment at the appellant’s instance to render his reply to the preliminary objection and even then the matter has been variously fixed for hearing on various dates to wit 21/9/94, 13/10/94, 15/12/94 and 25/4/95.

They have posited that the provision is mandatory and that failure to comply accordingly is fatal to the motion on notice and have relied on Adewunmi v. Attorney-General of Ekiti State (2002) FWLR (Pt.92) 1835 at 1868 paragraph H; Onajobi v. Olanipekun (1985) 4 SC. 156 at 163, Olubode v. Salami (1985) 2 NWLR (Pt.7) 282, Gwonto v. State (1983) 1 SCNLR 142, Bankole v. Plu (1991) 6 NWLR (Pt.211) 545, Chief Fezue v. Mbadiugha (1984) 1 SCNLR 427, Oyeyipo v. Chief Oyinloye (1987) 1 NWLR (Pt.50) 357. Responding on the legal effect they submit that failure to comply with the mandatory requirement is fatal to the proceedings and they rely on Madukolum v. Nkemdilim (1962) 1 NWLR 587.

The foregoing represents the state of the parties cases in this appeal. The applicant/appellant in his brief of argument has raised a number of issues for determination – five issues in all. It appears to me on a thorough perusal of those issues that the appellant has paid very little heed to the settled principle of law that it is not every slip or mistake of a court in a judgment that leads ultimately to upturning of its decision in a case. In that regard, based on numerous authorities, a mistake or slip in such circumstance has to be shown to affect or influenced the decision. See PAVEX INT. CO. LTD. v. AFRIBANK LTD. & ANOR. (2000) and 4SC (Pt.11) 1961; (1985) 4 SC 156 at 163; EZOKE v. NWAGBO (1988) 1 NWLR (Pt.72) 616 at 626; OSAFILE v. ODE (NO.1) (1990) 3 NWLR (Pt.137) 130. In all seriousness, it is in that light that I understand issues 2, 3, & 5. The appellant, to put it more bluntly, has not shown how each or everyone of the said issues with regard to the mistakes(s) of the court below therein encompassed has affected or influenced its decision. I have no hesitation in holding that these issues particularly issues 2,3 and 5 are lacking in circumspection. I shall come to them later on in this judgment.