Unity Bank Plc V. Kay Plastic Nigeria Limited & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

Way back in 2003 (that is, about eight years ago), the appellant herein (as plaintiff, subsequently, referred to as “claimant”) took out a writ of summons under the Undefended List Procedure against the respondents (as defendants) at the Ilorin Division of the Kwara State High Court (hereinafter referred to as the “lower court”); On March 4, 2004, the matter was transferred to the general cause list for hearing and determination. Sequel to the service on them of the Claimant’s Statement of Claim, the defendants filed their Statement of Defence. In addition, they counter claimed against the Claimant. This prompted the claimant’s Reply to the Statement of Defence and Defence to Counter Claim. These processes were filed on March 2, 2005.

Hearing in the case commenced on March 17, 2005. PW1 testified but did not exhaust his evidence. Some documents were tendered by consent. PW1 concluded his evidence three months afterwards, precisely, on July 26, 2005. On that day, PW2, also, testified. He was cross examined. We pause here to observe that during the pendency of this case at the lower court, the new rules embodied in the Kwara State High Court Civil Procedure) Rules, 2005 came into force. In passing, attention may be called to, among other sterling innovations in the new Rules, Order 1 Rule 2 which permits the court to “adopt such procedure as will in its view do substantial justice between the parties concerned” where a matter arises in respect of which no provisions are made in the Rules. Order 4 Rule 2, pragmatically, provides that the application of the rules “shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.”

Almost a year later, exactly, on July 11, 2006, the appellant (as claimant) beseeched the lower court with an application to amend her (a) Writ of Summons; (b) Statement of Claim; (c) Reply to the Statement of Claim and (d) defence to the Counter Claim. The lower court granted the application on October 9, 2006. The Claimant filed the Amended Reply to the Statement of Defence and Defence to Counter Claim on October 17, 2006 as required by Order 28 Rule 5 of the Rules of Court. On February 6, 2007, the defendants entreated the lower court to oblige them with an order to amend their Statement of Defence and Counter Claim. It was moved on February 7, 2007. As the Claimant did not oppose it, it was granted as prayed. Thirteen days later, that is, on February 20, 2007, the Claimant filed a Further Amended Reply to the Statement of Defence and Defence to Counter Claim as consequential amendments.

On June 2, 2008 (that is, one year and eight months from the date of the filing of the processes of October 17, 2006 and One year and four months from the date of the filing of the processes of February 2, 2007), counsel for the defendants made an “observation” at the lower court that these processes were not properly filed because they were filed out of time without the leave of court and without the payment of the necessary penalty fees. The lower court was persuaded by the said observation; hence, it struck out the Claimant’s Amended Reply to the Statement of Defence and Defence to the Counter Claim as well as the Further Amended Reply to the Statement of Defence and Defence to Counter Claim. Thereafter, PW2 testified. He was cross examined and discharged. On 6/10/08 the claimant called PW3. The defendants’ counsel refused to cross examine him on the ground that his senior in chambers wanted to do it personally. Thereupon, the witness was discharged. On the same day, that is, October 6, 2008, the claimant’s counsel moved an application filed to amend the existing Reply to Statement of Defence and Defence to Counter Claim. The defendants’ counsel opposed the application and, in a considered Ruling delivered on 21/1/09 the court refused the application.

This interlocutory appeal, therefore, is against the above two Rulings which the lower court delivered on June 2, 2008 and January 21, 2009.

ISSUES FOR DETERMINATION

1. Was the trial judge right in setting aside the Amended Reply to statement of defence and defence to counter claim and the Further amended Reply to statement of defence and defence to counter claim.
2. Was the trial judge right in refusing the claimant’s application for leave to amend its original Reply to statement of defence and defence to counter claim.
3. Was the statement of claim and the defence to counter claim valid.

ARGUMENTS ON ISSUE ONE

Was the trial judge right in setting aside the Amended Reply to statement of defence and defence to counter claim and the further amended Reply to statement of defence and defence to counter claim.

Learned counsel for the appellant, adopting and relying on the appellant’s Brief of Argument, urged the court to note that the lower court set aside the appellant’s Amended Reply to Statement of Defence and Defence to Counter Claim and the Further Amended Reply to Statement of Defence and Defence to Counter Claim upon an observation of the defendants’ counsel. The “observation” only metamorphosed into a complaint in the Ruling of the lower court.

Counsel submitted that the alleged late or improper filing of the appellant’s processes is categorized under the Kwara State High Court Civil Procedure Rules 2005 as ‘non compliance, citing Order 4 Rule 1 (1) of said Rules.

He conceded that the court had the discretion to set aside either wholly or in part any proceedings or document in respect of which a non compliance has occurred under Order 4 Rule 1 of the Rules of Court. He, however, submitted that such a weighty measure shall be taken only in accordance with the provisions of that Order. According to Order 4 Rule 2 (2), an application to set aside for irregularity may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or motion on notice. The word” shall” means “mandatory.” It excludes discretion. Thus any summons or motion on notice filed under order 4 must specify the grounds of the objection. In other words, any objection must specify the grounds of the objection. Except an objector comes either by way of summons or motion on notice he cannot satisfy the condition of specifying the grounds of the objection. He, therefore, submitted that the word “may” used in Rule 2 (2) must be construed to mean “shall.”

In the case on hand, the defendants’ counsel did not file either a summons or a motion on notice. The condition that the grounds of the objection be stated on the summons or motion on notice was not fulfilled. The lower court allowed the defendants to spring a surprise on the appellant in clear violation and disregard of the procedure prescribed by the Rules.

Counsel submitted that Rules of court are made to be obeyed, especially in instances where the other party may suffer or be subjected to some prejudice where the Rules are not followed, as in this case, Onwuanumkpe v Onwuanumkpe (1993) 8 NWLR (pt 310) 186, 205. In this case, the laid down procedure was not followed before the appellant’s processes were set aside on the oral observation of the defendants’ counsel.