University Of Ilorin Teaching Hospital V. Dr. Dele Abegunde (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

Furthermore, the earlier dictum of Ademola CJN in Bisi Oyeti V. Afolabi Soremekun (1963) 1 ALL NLR 349 at 350-351; is quite instructive on the point in issue when he posited thus:

“It was argued that in accordance with order 7 Rule 37 (supra), an application of this nature can be made to this court only if a previous application had been refused in the High court. As this is not the case here, the submission is that in case of dissatisfaction of the order made in the High Court, the Applicant may only appeal to this Court.”

We are of the view that whilst proceedings by way of appeal to this court may be a remedy in such cases, it is not the only remedy.

The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worth of consideration. They state:-

“24. An appeal under this part (i.e. in civil cases) shall not operate as a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”

It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High court has been granted in the High court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High court are onerous or, for any other reason, are found unreasonable”.

Learned counsel for the Respondent has rightly cited Solanke v. Somefun (1974) 1 S.C 141 at 148; where per Sowemimo, JSC, emphasized on the need for Rules of court to be obeyed or complied with and that any party or counsel seeking the exercise of the Court’s discretionary power, must bring his case within the purview of the Rules upon which the Application is predicated and that upon failure to do so, it is but fair and right that the Court should refuse to exercise her discretionary power in favour of such a party.

See also Owners of The M. V. “Arabella” v. Nigeria Agricultural Insurance Corporation (2008)5 SCNJ 109 at 120; cited by the learned counsel for the Respondent; Auto Import Export v. Adebayo (2003) 2 M.J.S.C 44 at 60; Ibodo v. Enarofia (1980) 5-7 S.C 42 and Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) at 181 para. C.

However, the omission or error in stating the Rules under which the Application is brought (assuming there is any such omission which is not the case herein), is not such an irregularity which goes to the substance of the application so as to vitiate it as purported by the learned counsel for the Respondent. See per Tobi, JSC, who posited in Abubakar v. Yar’Adua (2008) 4 NWLR (pt. 1078) 467 at 510 paras. H, that as a matter of our adjectival law, and by the state of the noncompliance Rules, the Courts will regard certain acts of conducts of noncompliance as mere irregularity which could be waived in the interest of Justice, (assuming the learned Senior Counsel for the Appellant/Applicant was wrong in citing Order 4 Rules 6 and 11 (which is not the case).

For instance Rule 6 of Order 4 of the Court of Appeal Rules, 2011 empowers the Court to make orders by injunctions or appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it, even though no application for such an order was made in the lower Court. The application for unconditional stay of execution is such an application envisaged by the Rule above cited.

Again, the Learned Counsel for the Respondent cannot seriously contend that Rule 11 of Order 4 does not apply to the prayers sought in this Application. That Rule for instance charges and empowers the Court to be seised of the whole proceedings between the parties once an appeal had been entered and until finally disposed of and except as otherwise provided by the Rules, every Application therein shall be made to the Court and not to the Court below, but any Application may be filed in the Court below for transmission to the Court. From the foregoing provisions, the Rules 6 and 11 cover this Application.

Assuming however that the prayers in the motion are not covered by the afore-stated Rules, let it be emphasized for the umpteenth time, that the era of strict and slavish adherence to technical and mechanical Rules of procedure, is gone for good as Courts nowadays are more disposed to doing substantial justice. This position of the Law is encapsulated in Order 4 Rule 6 and more particularly Order 20 Rules 2 and 3(1) which provides that the Court may direct a departure from the Rules in anywhere this is required in the interest of justice. Furthermore, the Court may, in exceptional circumstances, and where it considers it in the interest of justice so to do, waive compliance with the Rules or any part thereof.

The above provisions of the Rules, is the essence of the dictum of Tobi, JSC, in Abubakar v. Yar’Adua (supra) at 511 paras E.G; that although Rules of Court are meant to be obeyed for that is why they were made, they should not be slavishly obeyed to the extent that justice in the case is asphyxiated, muzzled, destroyed and jettisoned over-board for the barometer for measuring a judicial process by the public is whether justice has been done to the parties, therefore his Lordship had admonished the Courts to do justice even if some harm is done to some procedural Rule like the one canvassed. See again Orient Bank (Nig) Plc. v. Bilante International Ltd. (1997) 8 NWLR (pt 155) Per Tobi, JCA, (as he then was) explaining the purport of the provision of Order 19 Rules 2 and 3(2) of the Court of Appeal Rules which were in pari materia with Order 20 Rules 2 and 3(1) of the current Court of Appeal Rules, 2011.

On the whole, the submission of the learned Counsel to the Respondent on the preliminary point, is erroneous in that by the provisions of Sections 15 and 17 of the Court of Appeal Act alone, the Application is competent and can be sustained if the legal requirements are fulfilled.