Mr. G.O. Duke V. Akpabuyo Local Government (2005)
LAWGLOBAL HUB Lead Judgment Report
The appellant as a plaintiff had instituted a suit against the respondent claiming a sum of N150,000.00 for work executed for the respondent but which despite repeated demands was not paid. The action was placed on the undefended list. Judgment was thereafter given to the appellant as the respondent for reasons best known to it refused or failed to file an intention to defend the suit. After the judgment was delivered, the respondent filed two motions viz:- one seeking for installment payment and, surprisingly another to set aside the judgment. Curiously enough, it admitted owing the appellant of the sum claimed in its affidavit for installment payment. It then made a sort of summersault and withdrew the two motions. The matter did not end there as it applied to the Court of Appeal for leave to appeal against the decision stating that the judgment of the High Court was a nullity because as it contended, the writ of summons was served less than 8 clear days to the hearing date, and that interest ought not to have been awarded. The Court of Appeal upheld the argument that the judgment of the court below it was a nullity for non observance of the 8 days period because the respondent was served with the writ 6 days before the date fixed for the hearing of the case. Piqued by the decision of the Court of Appeal, the appellant then appealed to this court and framed only one issue for consideration which is:-
“Whether the service of a writ of summons less than 8 days before the hearing date would ipso facto render a trial (sic) nullity for want of jurisdiction or is an irregularity which the defendant in this case had waived.”
The respondent on its own part decided to adopt the sole issue framed by the appellant.
The appellant has argued that with the enrolled order of the High Court having been made, the effect is that the case would be heard in the undefended list as it should be taken that the enrolled order had superceded the endorsement on the writ of summons which he argued was a mere matter of form. It is the contention of the learned counsel for the appellant that where a writ is ex facie valid any defect on service would be a matter of form. For this proposition of the law, he cited Adegoke Motors Ltd. v.Adesanya (1989) 3 NWLR (Pt.109) 250, and Bank of Ireland v. Union Bank (1998) 7 SCNJ 385 at 396; (1998) 10 NWLR (Pt. 569) 178.
It is important to understand the nature of rules of the court. Our courts have held that rules of the court are meant to be obeyed. They provide supports in the administration of justice, but it must be understood that being rules or regulations to assist the court in its effort to determine issues or controversies before the court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the courts to discover justice and not to choke, throttle or asphyxiate justice. They are not sine qua non in the just determination of a case and therefore not immutable. Let me pause here and dwell tritely on the contention or argument of the learned counsel for the respondent. He argued with verve that
“The service of the writ of summons on the defendant less than eight days before the return date from the totality of the above Supreme Court decisions was clearly an irregularity.”
The term “irregularity” in respect of procedures, is most often construed by the court to denote something not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity, id est, it is curable. It may be necessary to recapitulate the provision of Order 2 rule 2(1) of the Cross River State High Court (Civil Procedure) Rules which states as follows:-
“An application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken fresh steps after becoming aware of the irregularity”.
In this case after the respondent had become aware of the decision of the court for which it did not file any intention to defend the action, it took three definite steps to wit,
(a) it filed a motion for installment payment, and (b) later it filed a motion to set aside the judgment, (c) it withdrew the motions. By taking those steps of filing two motions and withdrawing them, the impression gained is that it had decided to cut its losses by stopping any further prolongation of litigation. Suddenly it appealed to the Court of Appeal on the ground that the trial was a nullity. I must candidly confess that there is something inherently and patently ignoble and I dare say inelegant and ungainly in the procedure or method resorted to by the respondent. It sought to approbate and reprobate at the same time thereby sending a message of being consistently inconsistent. It is a parody in a quest of agitation of constitutional rights. What it might be asked is what is the nature of the defect in the service for which the respondent demonstrated such unedifying behaviour. To my mind, it is a defect which in its very nature in the con of the prevailing circumstance” would not ordinarily vitiate any proceedings taken, to wit, that there was unilateral abridgment of time not compatible with the prescription of the rules. In this case, the respondent sent out wholesome misleading signals. It admitted owing the money. There is in Law the ethical content by which justice is seen as representing what is noble in a civilized society and for which the judiciary attempts in its adjudicative duties to enthrone. Having so stated, it cannot be overemphasized that a court where conscience and ethics are excluded not necessarily by statute or rules that seek to subjugate-law and justice to some quaint philosophy but in which the court rests its adjudication on what it deems is the justice of the case, may still be described as a court of justice but certainly not a court of law. But such justice so rendered is not necessarily judgment bereft of civilized norms. As much as conceivably possible the tenets of sociological jurisprudence dictates that the court should be freed from some morbid conception that might adversely affect the rendition of justice premised on the noble altruistic intention and not in the alter of abstract concepts that are nihilistic. Where a party is seen to be indulging in a method that is antithetical to due administration of justice, the court should distance itself from it. .
In U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 296 this court per Belgore JSC stated as follows:
“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 rules of court”
See also Salami v. Bunginimi & An. (1998) 9 NWLR (Pt.565) 235 8 and Combe v. Edwards (1878) L.R.P.D. 103 at 142; In Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387, this court held that:-
“It is well settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Such an irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovery of the irregularity.”
Over-reliance on a technical slip or mistake should not play a part in seeking the enthronement of justice. The empirical element in adjudication is to render justice that has the face and character of humanness and is in accord with ethics. By thus, the law is fashioned out to do what it is conceived to be, i.e. to give people their due recompense or reward for which the court is called upon to do in its adjudicate process, and not resort to processes that might have the wrong message of being neither egalitarian nor comprehensible. In Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717, this court per Nnaemeka-Agu, JSC said,
“As we have stated several times, the days when parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things…
Having acknowledged the debt but now the respondent seeks to resort to mere technical factors this court would not avail it.
It is my view that in the light of the foregoing the judgment of the Court of Appeal cannot be sustained. I therefore allow the appeal and set aside the judgment of the court below. I hereby restore the judgment of the High Court. There will be cost to the appellant assessed at N10,000.00 in the court and in the Court of Appeal for N2,000.00.