The Hon. Attorney-general, Anambra State & Ors V. Ernest Ezeme & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment)

This appeal arose from a judicial review proceeding initiated by the 1st set of respondents in this appeal in the High Court of Anambra State, in Suit NO.HID/MISC,5/2000. The proceeding was commenced by a motion ex-parte dated 12th January, 2000 for leave to apply for:

i. An Order of this Honourable Court granting leave to the Applicants to apply for an order of certiorari bringing into this Honourable Court the proceedings of the Anambra State Boundaries Committee regarding the land dispute between the Applicants and the 2nd set of Respondents for the purpose of being quashed on the grounds set out in the Statement in support accompanying this motion papers.

ii. An order directing that the granting of leave in this Suit shall operate as a stay of all actions relating to the applicants’ application.

iii. And for such further Order or Orders as this Honourable Court may deem fit to make in the interest of justice.

The Court granted the leave as sought by the applicants (1st set of respondents in this appeal). The appellants and the 2nd and 3rd set of respondents were served with the motion on notice filed pursuant to the leave of the court. In response they filed various counter affidavits and written addresses.

In the address of the appellants’ Counsel, he submitted that the motion on notice is incompetent for failure to exhibit the proceedings sought to be quashed and should be struck out. The 1st set of respondents who were the applicants before the Court below then applied by a motion on notice for:-

“An Order directing the Secretary of the 3rd respondent to produce and place before this Honourable Court, the Certified True Copy of the proceedings of the said 3rd respondent the subject matter of this application.”

The application which was seriously contested by the appellants was granted as prayed by the Court below. The ruling of the court below is reproduced below;

“Order 37 Rule 8 (2) arises after leave has been granted and during the hearing of the motion. I accept that hearing of the motion is at the point of presentation of argument by the parties irrespective of the fact that written addresses were ordered.

Order 37 Rule 8 (2) is not mandatory but merely discretionary. I accept that I can at this point hear the applicants account for his failure to file a copy of the proceedings.

I agree with Senator Anah that the cases cited by Mrs. Onwuka and Mr. Obidinma are in applicable here because of the exception in Order 37 Rule 8 (2).

On jurisdiction even if I accept the argument of Mrs. Onwuka I can only strike out the case to enable the applicant come back again. There is surely no need for that.

These days the courts do not place too much emphasis on technicalities.