Famfa Oil Limited V Attorney-general Of The Federation (2003)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C. 

The appellant was plaintiff at the trial Federal High Court, Abuja Division. It took out an Originating Summons ostensibly under Order 7 Rule 8 of the Federal High Court Rules 2000. That Rule provides:

“An Originating Summons is issued upon its being signed by a judge in chambers.”

Due to an unexplained reason, the Originating Summons sent to the defendants (now respondents) was not signed by the judge, rather, a registrar of the court by name Ojo, signed the summons. When the Originating Summons as signed by the aforesaid registrar was served on the respondents, the 1st respondent, the Attorney-General of the Federation, reacted by entering an unqualified appearance. The Nigerian National Petroleum Corporation, 2nd respondent herein, through its counsel, Abdullahi Ibrahim and Co., raised preliminary objection attached to its conditional appearance as follows:

“That the suit is improper and incompetent and should accordingly be struck out.

GROUNDS

1. Non compliance with Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2000; and
2. Non-compliance with the statutory provisions for resort to arbitration.

At the hearing of the preliminary objection, the 2nd respondent withdrew the second leg of the objection. The 1st respondent who filed an unconditional appearance, turned round to support the preliminary objection of 2nd respondent.

In arguing the objection, learned Senior Advocate, Ibrahim, submitted that only a judge must sign the Originating Summons and the signature of the registrar instead of the judge on the summons rendered it null and void. He posited that non-compliance with the Rules of Court rendered the Originating Summons null and void and in consequence incompetent. Thus, according to this line of argument, there was no competent suit before court of trial. The court can only have competent suit before it if the procedural requirements for initiating an action are complied with; therefore if the correct procedure has not been complied with, the court was duty bound to strike out the matter. This is because only correct compliance with the Rules confers jurisdiction on the court. He relied on Sken Consult (Nig) Ltd. v. Ukey (1981) S.C. 6, 25; Western Steel Works Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR (Pt.30) 617, 627d; Onifade v. Orayiwola (1990) 7 NLR (Pt. 161) 130; 1669; Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286, 305, 321. In response to this argument, Ladi Williams, Esq, SAN, submitted that what actually happened with the Originating Summons applied for and taken out by the appellant as plaintiff, was a mere irregularity which did not vitiate the proceedings. He cited Aguda’s “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria” 1995 Edition in Chapter 3 where Uniform Rules of Court Order 2 rule 1 was cited and it says:

“Where in the 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 these rules in respect of time, place, manner, from 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.”

This is what is contained in the Uniform Rules of High Courts adopted by many states. The Rules of Federal High Court, in Order 3 rule 1 makes similar provision ad verbatim. Learned trial Judge, in his ruling on this preliminary objection, observed correctly that the appellant as plaintiff did all he was required by the Rules of Court in taking out Originating Summons and it was the administrative error of a court official, the Registrar, that committed the “blunder” (as he called it), whereby instead of the judge in chambers he signed the Originating Summons. He overruled the objection and held the error was not fatal to the Originating Summons and was a mere irregularity. This prompted the respondents’ appeal to Court of Appeal, Abuja Division.

The following issues were raised for determination at the Court of Appeal

(1) Who signed the Originating Summons, was it the respondent, its counsel or an official of the court.

(a) If it is the Registrar or an official of the court, can the 1st respondent be punished for the mistake of the court.

(b) and if it is the counsel to the first respondent, can the respondent be punished for the mistake of its counsel.