In The Court of Appeal

(Ilorin Judicial Division)

On Monday, the 2nd day of July, 2012

Suit No: CA/IL/20/2011

Before Their Lordships

TIJJANI ABDULLAHI....... Justice, Court of Appeal

IGNATIUS IGWE AGUBE....... Justice, Court of Appeal

ITA GEORGE MBARA....... Justice, Court of Appeal

Between

ADEKUNLE IDIAGBON     Appellants

And

1. HON. COMMISSIONER FOR INDUSTRY & SOLID MINERALS DEVELOPMENT

2. JAWAD N. DAIK

3. KWARA TEXTILES INDUSTRY LTD       Respondents

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory ruling of the High Court of Justice Kwara State holding at Ilorin, Coram, M. A.  Akoja (J) delivered on 14th day of January, 2011, which, dismissed the claim of the Claimant/Appellant at the pre-trial stage for, alleged non-compliance with the Statutory Provisions. The facts of the case that gave rise to the appeal under consideration, are that: The Appellant as Claimant at the Court below, filed a Writ of Summons dated 11th July, 2006 and amended Statement of claim against the Respondents as Defendants and claimed the following reliefs:

"(1) The claimant pray (sic) for recover of possession of the premises known and situate at Kwara Textile Industry Limited, No. 134 Muritala Mohammed Road, Ilorin.

(2) Payment of the rent arrears for the year 2004 July 2009 which is Five Million, Five Hundred and Fifty Thousand Naira (N5,550,000.00) only at the rate of N100,000 per month (sic).

(3) And to carry out necessary repairs as contained in the agreement between the parties,

(4) Mesne profit at the rate of N1,000,000 per month from the Defendants until possession is given up.

The Respondent on being served wit the writ of summons applied to join the 2nd and 3d Respondents in the suit.

On the 11th of February, 2009, judgment was given in favour of the Claimant/Appellant wherein the Judge held inter-alia thus:

"Accordingly therefore, the court holds that the terms of settlements dated 16th October, 2008 and filed on 16th January, 2009 read in conjunction with the letter of the 2nd defendant to the claimant shall be the judgment of this court."

However, upon the application of the 2nd and 3rd Defendants, the judgment of the court was set aside. A motion dated 26th June, 2009 was filed before the Court to renew the originating process and for leave to join the 3rd Defendant in the case. Upon the service of the order on the 1st, 2nd and 3rd Defendants, the Claimant filed Form 24, dated 30th September, 2009 and distilled an issue of facts for Determination dated 30th day of September, 2009, when all the Defendants refused to file statement of defence.

When the 2nd and 3rd Defendants filed their statements of defence on 24th day of February, 2010 and the 1st Defendant statement of defence on 29th day of March, 2010, the Court on 2/11/2011 took submissions from the Claimant's counsel and 1st Defendant's counsel in line with order 33 of the Rules of Court and prayed for a date for hearing see page 110 of the Record.

The Counsel to the 2nd and 3rd Defendants, though served with the pre-trial information sheet, did not file any issue for determination but asked the Court to dismiss the Claimant's claim for failure to file the pre-trial information sheet.

The learned trial Judge after taking submissions from the Counsel to the Claimant/Appellant on the Pre-information, sheet and that of Counsel to the 1st Defendant adjourned the case for ruling instead of hearing as urged by the learned counsel for the Appellant.

On the 14th of January, 2011, the learned trial Judge delivered his ruling wherein he stated as follows:

"The Court therefore holds that since the decision of this Court dismissing the Claimant's case was based on Order 33 Rule 2 sub-rule (3) and not Order 33 Rule 7 sub-rules (1) and (2) of the Rules of Court, this Court cannot re-open the case and lacks the requisite jurisdiction to vary, review and or set aside its decision of the 24th day of November, 2010. Accordingly, the Applicant's motion on notice, dated 24/11/2010 and filed on 25/11/2010 is incompetent, lacks the requisite merit and same is dismissed."

Dissatisfied with the Ruling of the learned trial judge, the Appellant, through his counsel filed a notice of appeal on the 18th of January, 2011 consisting a lone ground which reads thus:

"The learned trial judge erred in law when His Lordship dismissed the suit of the appellant for failure to file pre trial information sheet."

The Appellant sought for the following relief(s): That is to set aside the whole ruling against the Appellant for being perverse. Learned counsel for the Appellant from the lone ground of appeal distilled equally a single issue for determination to wit:

"The Ruling of the trial Judge is perverse and has occasioned a miscarriage of Justice in his interpretation, construction and application of Order 33 Rule 2 sub-Rule 1 and 2 and Order 33 Rule 7(1) and 2 of the Kwara State High Court (Civil Procedure) Rules to the Appellant's case."

For his part, learned counsel for the Respondents formulated a lone issue for determination to wit:

(1) Whether the learned trial judge rightly up-held the objection of the 2nd and 3rd Defendants/Respondents on the ground that the Appellant did not comply with the provisions of Order 33 Rule 2(1) and 2 and Order 33 Rule 7(1) of the Kwara State High Court (Civil Procedure) Rules.

On the 18th of April, 2012, when the appeal came before us for hearing, learned counsel for the Appellant, Mr. D. Oye Ogunyemi Esq, adopted his brief of argument dated 24/02/2011, filed on 25/02/2011 but was deemed filed by the order of the court on 13/10/2011 as his arguments for the Appellant in this appeal and urged us to allow the appeal and set aside the judgment of the lower Court.

Similarly, A. O. Akinpelu (Mrs) learned Solicitor-General, Kwara State, Ministry of Justice, on behalf of the first Respondent adopted her brief, dated and filed on 20/10/2011 as her arguments in this appeal and urged us to dismiss the appeal as lacking in merit.

ARGUMENT OF ISSUE

Learned Counsel for the Appellant, began his argument of the lone issue by re-stating what transpired in the lower court, beginning with the pre-trial information sheet which was dated and filed on 30th September, 2009, and which was also served on all the parties to the proceedings. Learned Counsel contended that the attention of the learned trial Judge was drawn to this fact as can, be seen on page 111 line 24 of the Courts proceedings. Learned Counsel referred us to page 114 lines 16 - 17 wherein the learned trial Judge was quoted to have said:

"It was Counsel's submission that the Claimant complied with rules of Court substantially by filing the necessary papers dated and filed 30th September, 2009. He submitted that Form 24 was duly attached."

Learned Counsel submitted with respect due to the learned trial Judge, he (learned trial Judge) deliberately decided not to consider the Claimant's/Appellant's pre-trial information sheet before him. Learned Counsel went on to submit that the learned trial Judge closed his eyes against the submission of the Claimant's Counsel. This, according to the learned counsel is perverse and had occasioned a miscarriage of justice.

Learned counsel contended that the Respondents, based on the service effected on them of the pre-trial information sheet; the 1st Respondent formulated 4 issues for determination as can be seen on page 110 of the record; learned Counsel posed this question that: "if we did not file the pre-trial information sheet, how then can the 1st Defendant formulate his own issues before the court?

Learned Counsel further contended that on this vexed issue of pretrial information sheet, that the learned trial Judge took submissions from counsel after which counsel prayed for a date for hearing but instead of granting them a hearing date, as prayed, the learned trial Judge fixed a date for ruling based on the oral application by the Counsel to the 2nd and 3rd Defendants on the premise that pleadings have been completed and that the Claimant/Appellant has not filed, his pre-trial, information sheet.

Most strangely, the learned counsel went on, the learned trial Judge ignored his record of proceedings and delivered his ruling dismissing the Appellant's suit without giving him an opportunity of hearing.

It is the submission of the learned Counsel that the learned trial Judge erred by not considering their application even though there was no any counter-affidavit against the said application.

It is the submission of the learned Counsel that the attitude of Courts these days have been that cases should not be decided on the basis of technicalities. They (courts), learned counsel went on, have refused to resolve cases on technicalities. They now prefer substantial justice rather than dwell on technicalities, learned counsel further submitted. For this submission, learned counsel relied on the cases of Henry Odey vs. Federal Republic of Nigeria (2008) All FWLR (Pt.424) 1590 at 1616 and Femi Bayo vs. Federal Republic of Nigeria (2008) All FWLR (Pt.428) 304 at 319.

On order 33 Rule 7 (1) (2) of the Kwara State High Court (Civil Procedure) Rules 2005, learned counsel submitted that they are not similar to the provisions governing election petitions and that the decision of the learned trial Judge that the case he cited had a lot of similarities with the case in hand is perverse and occasioned a miscarriage of justice. Learned counsel urged us in view of the foregoing to resolve the lone issue in favour the Appellant, allow the appeal by setting aside the decision of the lower Court.

Responding to the argument canvassed by the learned counsel for the Appellant, learned counsel for the Respondents, A. O. Akinpelu (Mrs), learned Solicitor-General submitted that the learned trial Judge was right to up-hold the objection of the 2nd and 3rd Defendants/Respondents' Counsel against the Appellants for non-compliance with the provisions of Order 33 Rule 2 (1) and (2) as well as order 33 Rule 7 (1) of the Kwara State High Court (Civil Procedure) Rules.

After setting out the provisions of order 33 Rule (1) of the said High Court (Civil Procedure) Rules, learned counsel submitted that by virtue of the provisions of the Rule, the Appellant is, required to apply for the issuance of pre-trial conference notice in Form 23.

It is his further submission that with the use of the word "shall" in the rule, it is mandatory for the Claimant/Appellant to apply for the form in compliance with the provisions of the Rule or else, the provisions of order 33 Sub-Rule 3 of the Kwara State High Court (Civil Procedure) Rules would be invoked against them. The invocation of sub-Rule 3, left the Respondents with two options; either to apply for the issuance of the form or apply to have the case dismissed. Learned counsel posited that the Respondents chose the latter.

Learned counsel submitted that the Rules of court are meant to be obeyed and their provisions are not for cosmetics. They must be complied with and a party who fails to comply with the Rules of court, does so at his own peril, learned counsel further submitted. In support of this submission, learned counsel relied on Owners of MV Arabella vs. Nigerian Agricultural Insurance Corporation (2008) 5 SCNJ at 120, Chief Owolabi Folorami vs. Adeleke Adeolu Abraham and, 3 Ors (2004) 10 NWLR (part 881) p.453 - 455, Ojugbele vs. Lamidi (1999) 10 NWLR (part 621) p.167, Ishola vs. Ajiboye (1998) 1 NWLR (Pt.532) p.77 and Ibrahim vs. INEC (1998) 8 NWLR (Pt.614) P.352.

Learned Counsel submitted that a trial judge has a duty to manage his Court in accordance with the laid down rules and regulations guiding its procedure and in the same vein, learned Counsel submitted that a Court of law has a discretion to consider whether the occasion is appropriate to order for a departure from its rules. Learned counsel further submitted that whatever the occasion may be, the need to exercise such a discretionary power must be upon satisfaction of the court that the omission to act is founded on absolutely compelling reason that is exceptional.

It is the submission of the learned Counsel that in the case in hand, the Appellant did not satisfy or convince the Court that its discretion should be exercised in his favour since he failed to adduce compelling and exceptional circumstances. The Appellant, learned Counsel went on, has not shown that there had been any miscarriage of justice resulting from the lower Court's refusal to exercise its discretion in his favour. For this submission, learned Counsel relied on Chief Ololabi Folorami vs. Adeleke Adeolu Abraham and Ors (supra), Williams vs. Hope Rising Voluntary Funds Society (1982) 2 SC P.145; The Senate President of the Federal Republic of Nigeria and 1 Or. Vs Senator Francis Arthur Nzeribe (2004) 9 NWLR (pt.878) p.251 at 272 - 273.

We were urged to hold that the learned trial Judge was right to have invoked the provision of Order 33 Rule 3 of the High Court (Civil Procedure) Rules, 2005. He was also right to have dismissed the case of the Appellant. We were equally urged to resolve this issue in their favour and dismiss the appeal under consideration for lacking in merit.

RESOLUTION OF ISSUE

Now, let me begin my consideration of the lone issue by stating that the law is now settled beyond peradventure that "the rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help in the cause of justice and not to defeat justice. The Rules are therefore aids to the Court and not masters of the court. For to read Rules in the absolute without recourse to the justice of the cause to my mind that will be slavish to the Rules. This clearly is not the reason for the Rules of Court" per Belgore JSC (as he then was) in the case of U.T.C. Ltd. v. Pamotai (1989) 2 NWLR (Pt.103) 244 at 296.

Again, in the case of Highgrade Maritime Services Ltd. vs. First Bank Nigeria Ltd (1991) 1 NWLR p.290, the apex court, per the erudite emeritus Justice of that court, Wali JSC has this to say with regards to the Rules of Court. Hear him!

"The rules of procedure regarding the filing of pleadings is meant to assist the parties to make clear to one another, their respective cases so that each one can adequately prepare his evidence. Once this is achieved, the Court will not adhere to mere technicalities raised by ingenuity of counsel to pervert the course of justice. The court should not be used and manipulated through technicalities for perpetrating injustice." (Underlining mine for emphasis)

Having stated the law and all that, it is appropriate to pause at this juncture and examine what transpired at the lower court in the instant case with a view to finding out whether or not the Rules of Court were not used and manipulated through technicalities as vehicle of perpertrating injustice. Let me start with page 23 of the record of the lower Court. It is crystal clear on that page that the Appellant's counsel filed a pre-trial information sheet, dated and filed on 30/09/2009. It is also clearly stated that a sum of N100.00 was paid as filing fees of the said process and on the reverse side of the said process, it is clearly stated that all the Defendants/Respondents were served with the said process.

The foregoing notwithstanding, the learned trial judge on page 115 of the record, concerning the process in question has this to say:

"An observation of the said two documents show that they were merely served but never filed before the Registrar of this Court or at any other Registry."

A cursory look at the document under consideration would clearly show that the Appellant had paid for filing fees and having paid same I am of the considered view that the process had been filed for it is the filing fees that breathes life into a court of process. See the case of Dr. Abdulrasheed Alanamu v. Yakub Agbo and Ors, unreported, delivered on 26/4/2012 pages 5 and 6 per Abdullahi JCA.

That aside, it is also not in dispute that the 1st Defendant/Respondent based on the said pre-trial notice filed by the Appellant, filed their own document where four issues were distilled for determination. If the pre-trial Notice was not filed and served, how would they have known that it existed talkless of filing four issues for determination.

Again, looking at the record of proceedings, one would easily see that on 02/11/2010 at page 110, the Claimant's counsel after making his submission, prayed for a short adjournment whilst counsel for the 1st Respondent prayed for a fairly long date for hearing. All these notwithstanding, it was actually strange as submitted by the learned counsel that, after taking the two submissions of the learned counsel that he (learned trial judge) somersaulted and decided to take oral application made by the 2nd and 3rd Defendants' counsel that pleadings have just been concluded and pre-trial conference sheet and pre-trial information sheet have not been filed by the claimant and then fixed the case for ruling instead of hearing as urged by the learned Counsel.

Learned counsel for the Respondent has made heavy whether of the fact that the learned trial Judge has a discretion to exercise in applying the Rules of court in so far as there is no miscarriage of justice. With respect due to the learned counsel, there can be no worst miscarriage of justice that would supersede a situation where a case, after pleadings have been completed to be dismissed without hearing the parties on the pretext that the dismissal is in compliance with the Rules of Court!

In the case of Mr. Joseph Adebayo Adedoyin v. Mr. Taiye Oniyide, unreported, Appeal No. CA/IL/25/2011, delivered on the 17th day of May, 2012, this court, per Abdullahi JSC has this to say:

"It is instructive to state at this juncture that the rule of the pre-trial conference is only made to quicken the hearing, it has nothing to do with the merit of the case."

In his concurring contribution, the learned law Lord, Mbaba JCA held that:

"It has been held, repeatedly that the Rules of Court are meant to serve as hand maids of the law, to assist the litigants to attain the justice as enshrined in the substantive law, and not to operate as a clog in the wheels of justice, to be used to enthrone technicalities and injustice."

In the light of the foregoings I am of the considered view that the action of the learned trial Judge in dismissing the suit of the Appellant without giving him an opportunity of being heard has caused a great miscarriage of justice and ought not to be allowed to stand.

Consequently, the lone issue formulated by the parties is resolved in favour of the Appellant and against the Respondents. The appeal is pregnant with a lot of merit and ought to be allowed and it is hereby allowed accordingly. The Ruling of the Court below is set aside. The case is remitted back to the State Chief Judge for re-assignment to another Judge other than the learned trial Judge, Akoja (J) to be tried on the merit. Costs are assessed at N50,000 in favour of the Appellant and against the 2nd and 3rd Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have carefully read in advance the lead Judgment just delivered by my Lord Tijjani Abdullahi, PJ; and I agree with him that the appeal is meritorious.

My Lord has comprehensively dealt with the sole Issue that calls for determination in this Appeal and I have nothing else to add. The case shall be remitted to the Honourable, the Chief Judge of Kwara State for reassignment to another Judge for hearing and determination on the merits.

I abide by all consequential orders as to costs.

ITA G. MBABA, J.C.A.:  I have had the privilege of reading the draft of the judgment just delivered by my learned brother Tijjani Abdullahi JCA (PJ), which clearly and exhaustively treated the lone issue raised by the parties for determination. I completely agree with him.

It is necessary to repeat here that the Rules of Court, meant to assist the Court to do justice in the determination of the complaint/case brought before it, cannot be applied to supplant the law and frustrate the parties, and the interest of justice which the Court exists to defend and protect. I think any Rule of Court which permits the dismissal (not striking out) of a suit which has not been heard, simply because the pre-hearing formalities (like filing of prehearing notice) has not been filed is cruel and unjust and should not have a place in the Rules of Court or be accorded the dignity of a legal instrument by Court for judicious determination of competing interests of the parties

Order 33 Rule 2(1) (3) of the High Court (Civil Procedure) Rules of Kwara State 2005, says:

Rule 2(1) Within 14 days after close of pleadings, the claimant shall apply for the issuance of pre-trial conference notice in form 23

Rule 2(3) If the claimant does not make the application in accordance with sub-rule (1), the defendant or defendants may do so or apply for an order to dismiss the action" (Underlining mine). How can, an application to dismiss the action at that stage be justified when the case which is already before the Court has not yet been heard waiting to be heard.

Every pleading has been filed and issues joined, but the Court, instead of fixing a date for the parties to commence hearing, (either prehearing or full hearing) rather wants the claimant, to apply for "Pre-trial conference notice"?

What is the purport of the pretrial Conference Notice, which if not done, should result in the dismissal of the action?- Not even striking out of the same!

It would appear such notice should not even be expected from the litigants but should proceed from the Court to the parties, upon completion of exchange of pleadings. This type of situation was considered by this court in the case of Akirikwen vs P.D.P. (2012) ALL FWLR (Pt.617) 689, which considered a similar provision under Paragraph 18(1)(3)(4) of the 1st Schedule to the Electoral Act, 2010; as amended. We held at page 726-730 of the judgment as follows:

With due respect to the honourable tribunal,

I think it did a disservice to the law, and substantial in justice, to have accepted the arguments of the respondents to set aside the process duly filed by the appellants for issuance of the pre-hearing notice...It does not even sound reasonable to expect the application for pre-hearing notice under paragraph 18(1) and (3) to be by way of motion...

ordinarily, it Would be the duty of the tribunal or court to issue pre-trial notice to parties, upon completion of exchange of pleadings, which the filing, and service of reply to petitioners petition or filing of reply by the respondents portends, as the Secretary of the tribunal or court is already seized of the information as to when the last process (pleadings) was filed and served....After all the tribunal owed the appellants a duty to hear their petition duly filed before the Court." See also the case of Mr. Joseph Adebayo Adedoyin v. Mr. Taiye Oniyide (unreported) CA/IL/25/2011 delivered on 17/5/2012"

The Rules and procedures of Court are meant to serve the interest of justice and to be used to discover justice and not to choke, throttle or asphyxiate it. See the case of Duke vs. Akpabuyo L. G. (2005) 9 NWLR (pt. 959) 130; Moyosore vs. Governor of Kwara State (2012) 5 NWLR (pt. 1293) 242, held 12.

It is therefore not proper to require the plaintiff to be the one to apply to activate the hearing Notice for the Court to hold pre-hearing conference. After the completion of exchange of pleadings, Notices of pre-trial conference should issue to the parties from the Court that is in a position to know when to fix for the pre-hearing conference.

That sounds more reasonable. The price for failing to apply for hearing notice cannot be the dismissal of the case, even if the plaintiff were to apply for the hearing notice!

For this reason and the more elaborate reasons in the lead judgment I, too, allow the appeal and abide by the consequential orders in the lead judgment.

Appearances

David Oye Ogunyemi Esq.      For the Appelants

A. O. Akinpelu (Mrs.), (SGPS) Kwara State with S. K. Grillo (Mrs.) Asst. Director, T. P. Oniyide (SSC) A. O. Oyeyipo (SSC), Ministry of Justice, Kwara State for the 1st, 2nd and 3rd Respondents.       For the Respondents