Zenith Bank Plc V. Bankolans Investments Limited & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Lagos State delivered by Pedro J. on 26th June, 2008 wherein the Defendant/Appellant’s 1st further counter-affidavit to the claimants/respondent’s originating summons was struck out on the ground that same is alien to the Rules.

The claimants/respondents commenced an action at the High court of Justice Lagos State by way of originating summons dated 18th July, 2006 claiming declaration and damages against the Defendant/Appellant. In response, the Defendant/Appellant entered appearance and filed a 39 paragraph counter affidavit dated 18th July, 2007. The Claimants/Respondents on 15th October, 2007 filed a further affidavit in support of the originating summons. Thereafter the Defendant/Appellant filed a 1st further counter-affidavit opposing the claimants’ originating summons dated July 18, 2006. The Claimants/Respondents filed a Notice of Preliminary Objection dated 31st October, 2007 challenging the competence of the said 1st further counter-affidavit as being a process unknown to law and an abuse of court process. In a considered Ruling the learned trial judge Pedro J. at page 118 of the record had this to say: –

“It is on this score that I hold that the procedure adopted. by the Defendant/Respondent in filing their 1st further counter affidavit in this suit is alien to the rules not being in accordance with the rules, its fate lies in being struck out.”

Dissatisfied with the ruling Defendant/Appellant filed a Notice of Appeal dated 26th June, 2008 containing five grounds of appeal.

In accordance with the practice of this court both parties exchanged briefs of argument. When the appeal came up for hearing Appellant’s brief filed on 16/4/10 was adopted by Obisike Esq. and he also urged the court to allow the appeal. Respondents’ brief of argument filed on 7/5/10 was adopted by kalu Esq. who also urged the court to dismiss the appeal. A reply brief filed on 14/5/10 was also adopted by appellant’s counsel.

From the five grounds of appeal appellant distilled two issues for determination as follows: –

(a) Whether or not the Defendant/Appellant’s 1st further counter-affidavit opposing the claimants’ originating summons and written address in support of the said 1st further affidavit are processes unknown to law and therefore incompetent as the learned trial judge held? (Formulated from Grounds 1, 3 and 4 of the Notice of Appeal)

(b) Whether or not the Claimants/respondents’ Notice of Preliminary Objection is incompetent and ought to have been struck out as the Defendant/Appellant contends? (Formulated from Grounds 2 and 5 of Notice of Appeal)

The Respondents formulated three issues from the Appellant’s Notice of Appeal as follows: –

1. Whether or not the lower court was correct when it ruled that the Defendant/Appellant’s first further counter-affidavit and its supportive written address opposing the claimant’s originating summons were processes unknown to law and therefore incompetent.
2. Whether or not Grounds 2 and Relief 2 of the Appellant’s Notice of Appeal and issue 2 canvassed in the Appellant’s brief arising there from ought not to be struck out as having not been canvassed earlier in the court below.
3. And assuming your Lordships are inclined to find that all Grounds in the Notice of Appeal, are valid, whether the claimants/respondents notice of Preliminary Objection is incompetent and ought to have been struck out as the appellant contends.

In determining this appeal, I intend to adopt the issues formulated by the appellant. Respondents’ issues will be treated together with the appellant’s issues. I have noticed that issue 2 is challenging the competency of the Notice of Preliminary Objection. It is therefore appropriate to resolve the second issue first before considering the first issue. The question raised in issue 2 is whether or not the Claimants/Respondents’ Notice of Preliminary Objection is incompetent and ought to be struck out?

Appellant’s counsel contended that the Claimants/Respondents’ Notice of Preliminary Objection is unknown to the High Court of Lagos State (Civil Procedure) Rules, 2004 and therefore incompetent.

Reference was made to Order 39 Rule (1) of the High Court of Lagos State (Civil Procedure) Rules, 2004 which states that every application shall be made by motion. The word “Shall” used in the provision is mandatory. On the effect of failure to comply with a specific procedure prescribed by law for approaching the court for relief, reliance was placed on the cases of Lawani v. Oladokun (2003) 2 NWLR (Pt 804) 271 at 287 paragraphs C F and Uba v. Ekpo (2003) 12 NWLR (Pt. 834) 332 at 343. Counsel submitted that where a specific procedure is provided for, in mandatory terms, by the law or the Rules of Court, it is a question of substance and not of form. Learned counsel therefore contends that since the application was not made by motion on notice Assuming but without conceding that Claimants/Respondents, Notice of Preliminary Objection is known to the High Court of Lagos the objection is incompetent and ought to be struck out. State (Civil Procedure) Rules, 2004, the Defendant/ Appellant contends that it is nonetheless incompetent as it contains no relief capable of being granted by the court and ought to have been struck out. It was submitted that the objection and purported relief did not and do not make sense. The objection made reference to motion which did not exist. That the failure of the claimants/respondents to set out on the face of the Notice of Preliminary Objection a competent relief is fatal to the competence of the Notice of Preliminary Objection. That the learned trial judge and parties are bound by the prayer specifically sought on the face of the claimants’ preliminary objection which is incapable of being granted and therefore incompetent. It is not for counsel to the claimants/respondents to dictate to the court from the relief he seeks without amending the incompetent notice of preliminary objection. It was argued that the need for court to do substantial justice does not and cannot give fundamental and fatal defect, as in the present case. That the court has no power to grant reliefs not specifically set out on the notice of preliminary objection. That in the absence of a competent relief capable of being granted, the learned trial judge ought to have dismissed or struck out the claimants’ Notice of Preliminary Objection for being incompetent. Appellant’s counsel submitted that the learned trial judge failure to pronounce on the issues as to whether the claimants/respondents’ Notice of Preliminary objection is unknown to the High Court of Lagos State (Civil Procedure) Rules, 2004 and whether the claimants/respondents’ notice of preliminary objection contains any valid relief capable of being granted led to miscarriage of justice. That this court has the power to avoid miscarriage of justice to pronounce on issues submitted to the lower court which the lower court wrongly failed to consider and pronounce upon. Appellant’s counsel urged the court to hold that the Notice of Preliminary Objection is incompetent and ought to have been struck out.

The Respondents’ response is as canvassed under issues 2 and 3 of its brief of argument. Respondents’ counsel contended that nowhere in the said record did the Appellant canvass arguments to the effect that the preliminary objection is incompetent as not being supported by any relief prayed for. It was argued that appellant’s ground 2 and relief 2 relates to a fresh issue not canvassed at the lower court as such same cannot be entertained without leave of court. Reference was made to case of Hyppolite v. Esharevbo (1998) 11 NWLR (Pt.577) 598 at 612 paragraphs G – H wherein the court stated thus: –