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
- Non compliance with Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2000; and
- 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.
(2) Whether or not the first respondent has discharged all its obligations and or burden imposed upon it by the Rules of Court when it paid for and filed the Originating Summons at the Registry of the Court.
(3) Did the signing of the Originating Summons by another person other than the Judge amount to an irregularity or a nullity and if it amounts to irregularity, can the irregularity be cured.
The same argument as proffered at trial court was raised in support of the issues. In essence it was submitted that Rules of Court are meant to be obeyed or complied with. A further argument touched on Section 254 of the Constitution of the Federal Republic of Nigeria, 1999, which gives the head of courts the power to make the rules. What this means, according to the submission, is that the Rules of Court have constitutional force. I will deal with this submission later in this judgment.
What are the obligations of a party who asked the court for issuance of Originating Summons The way the issues were framed in Court of Appeal by second respondent as appellant has, to my mind, overstretched what a party must do in the circumstances. The lower court however resolved the issue by asking for more evidence from the party applying for Originating Summons that he did all he had to do by law, whether substantive or procedural. The decision that the appellant had to prove that he did all he had to do , in the circumstance of this case, is a great error.Therefore, in allowing the appeal and holding that the appellant did not prove that he did all he had to do to take out the Originating Summons is shifting the burden of proof on a wrong party. The evidential principle of who asserts must prove has stayed with us for long that it is too late now to change the rule. The second respondent wants the burden to be on the appellant. Thus the appeal to this court that the lower court was in error deserves to be looked into.
The issues in this court by appellant are:
“(i) Whether or not the fact that it was the Registrar and not the Judge who signed the Originating Summons constitutes an incurable irregularity which invalidates the said summons or render it a nullity.
(ii) In considering the correct answer to Question (i) whether or not it is material whose lapse led to the ‘irregularity’ in the said summons.”
There is no dispute that the appellant went to Federal High Court, Abuja Division, to take out an Originating Summons. He paid all the fees and filed all the papers. The issuance of the summons, under the Rules, should be completed by the judge, sitting in chambers, signing it. The plaintiff taking out Originating Summons deals with court officials, registrars, and not with the Judge. The Registrar is to take the summons to the judge in chambers to sign. It is an administrative affair. The plaintiff in such a situation has no supevisory power over the process leading from the registrar to the Judge in chambers. In the instant case, the plaintiff as appellant did all he must do to take out the Originating Summons. The registrar, instead of taking the summons to the Judge in chambers to sign, canceled the printed word “Judge” and superimposed his own signature. Whose failure is this Certainly the appellant had no hand in this error and should not be visited on it.
The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for declaration of his interest. (Order 38 rule 1 and Order 44 rule 1L). It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. If there are serious dispute as to facts then a normal writ must be taken out and not Originating Summons – Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts, must be taken out and will become operative once a judge in chambers has signed it thus giving direction for its service. The applicant is not the one to take the summons to the judge, this is a purely administrative matter of the court’s registry which does not involve the applicant. Thus, failure of the Judge to sign the Originating Summons is mere procedural irregularity and it cannot by fig of imagination be placed on the shoulders of the plaintiff. Alhaji Dahiru Saude v. Alhaji Hakim Abdullahi (1989) 7 S.C. (Pt.II) 116, (1989) 3 NSCC (Vol. 20) 177, 178.A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.
There is no allegation of any miscarriage of justice in this matter; in fact the 1st respondent had filed unconditional appearance to the Originating Summons. To my mind, the procedural irregularity like this one which has clearly shown what the plaintiff has as its complaint should not vitiate the proceedings. Procedure is to guide orderly and systematic presentation of a cause, it is to help the substantive law and not to enslave it. It is true, the Constitution allows for the Rules of Procedure to be made but it does not make procedure to be master of the law. After all, all laws have the Constitution as their fountain and they exist only due to the Constitution. The insertion of Section 254 in the Constitution of Federal Republic of Nigeria 1999, is to provide not only for the obvious but to empower who is to make the Rules. Certainly it has not made the rules superior to any law or made the rules more fundamental than any law.
I therefore find that this appeal had great merit and I allow it. I must state that the preliminary objection as to the issues vis-a-vis the ground of appeal has no merit. The nature of this appeal warrants what looks like an irregularity. The appellant admits the Originating Summons was not signed by the Judge, but urges the court to hold that the error was not fatal to the originating summons it is only an irregularity that could be cured. The court can cure it or admit it only as irregularity. Trial court found it as irregularity, though Court of Appeal held it was fatal to the case, this judgment has seen it as mere error amounting to curable irregularity and it was the fault of court’s administration not caused by the appellant. In all irregularities concerning procedure, the main suit should not be vitiated unless miscarriage of justice will thereby be occasioned. The parties to this suit understood what the plaintiff taking out Originating Summons asked for. The fact that an administrative error occurred through the fault of the registry will not destroy the suit. The court should correct its administrative error.
I allow this appeal and set aside the decision of Court of Appeal. I restore the ruling of trial Federal High Court. The trial Judge shall sign the Originating Summons relating back to when it was taken out. I award N5,000.00 as costs in Court of Appeal and N10,000.00 as costs in this court.
U. MOHAMMED, J.S.C.: I entirely agree. There is merit in this appeal and for the reasons given in the judgment of my learned brother, Belgore, JSC., the appeal ought to be allowed. Okeke, J., is quite right that the administrative blunder of the registrar signing the Originating Summons instead of the judge as required by Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, is a mere irregularity. It is wrong of a court to punish a party for a mistake committed, not by the party, but by the Registry of the court. The Court of Appeal committed an error in trying to distinguish the decision of this court in Saude v. Abdullahi (1989) 7 S.C. (Pt.II) 116; (1989) 3 NSCC 177 from the case in hand. In that case, this court held that failure of a judge to sign an Originating Summons is a procedural irregularity. This court’s decision in Saude v.Abdullahi (supra), is therefore on all fours with the situation in the present case. A breach of the rule of practice can only render a proceedings an irregularity and not a nullity.What happened in the Registry was a technical error and should not be a ground for nullifying proceedings. Where the facts are glaringly clear the court should ignore mere technicalities in order to do substantial justice to the case. Singleton, LJ., commenting on a technical issue in the case of Finnegan v. Cementation Co. Ltd. (1953) 1 QB 688 at 699 observed:
“……….. these technicalities are a blot upon the administration of the law, and everyone except the successful party dislikes them. They decrease in number as the years go on, and I wish that I could see a way round this one.”
There is a way round this technical decision of the Court of Appeal and the answer is that the lower court is wrong. Okeke, J., is right to rule that the appellant must not be penalized for the administrative error of the Registrar of the court. For these reasons and fuller reasons in the judgment of my learned brother, Belgore, JSC., I allow the appeal, set aside the judgment of the Court of Appeal and restore the ruling of the trial High Court. I abide by all the consequential orders made in the lead judgment including the assessment and award of costs.
SC.305/2002