Court of Appeal Ruling on whether a Trial Judge was right in striking out a Suit for Non-issuance of Writ of Summons


 In Moses G. Jwan v Eco Bank Nigeria Plc & ors [Appeal No CA/J/309/2017], the Court of Appeal — in a judgement delivered by Justice Habeeb Olawale Abiru — held thus:      

“Reading through the records of this appeal, this Court must say that the issue of non-compliance with the provisions of Orders 15 Rules (1) and (15) of the High Court of Plateau State (Civil Procedure) Rules of 1987 is one that should not have arisen in the lower Court and should never have been brought before this Court. This case is a sad commentary for our justice delivery system and it is a perfect example of how the carelessness of a trial Court and the incompetence of Counsel to the parties can derail the normal course of proceedings in a matter.

“The lower Court left the substance of the matter tried before it and focused its energy on the written addresses of Counsel to the parties on the issue and it delivered a judgment striking out the entire suit as incompetent on the ground that the writ of summons was not properly issued. The entire arguments of Counsel on the issue in the lower Court, the judgment of the lower Court and the entire arguments of all the Counsel in this Court turned on the interpretation and the effect of the provisions of Order 15 Rules (1) and (15) of the

“The lower Court completely abdicated this duty and it derailed the course of a matter that had been concluded and ready for judgment by its inept observation. Surprisingly, Counsel to the Appellant, Counsel to the first Respondent and Counsel to the second Respondent followed the lower Court on its voyage to nowhere and none of them had the presence of mind to redirect the lower Court to the proper course of the journey of the case before it. This is utterly disappointing, particularly Counsel to the Appellant.

“It is the duty of Counsel to bring to the attention of the trial Court any wrong procedure which might affect his client’s interests and not to expose his client to unnecessary litigation that could result in waste of time and money

“Counsel to the Appellant fell appallingly short of his duty to his client.

”Now, it is trite that Rules of Court are part of the machinery of justice made by the courts to regulate their proceedings. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of the nature of subsidiary legislation by virtue of section 18 (1) of the Interpretation Act and consequently have the force of law.  Accordingly, as a general rule, Rules of Court must be obeyed by litigants and they are binding on all the parties before the court.

“It must, however, be understood that not every non-compliance with the Rules of Court is necessarily fatal to the case of party or to the process filed by a party in a matter. One of the most firmly established principle of judicial adjudication is that the Rules of Court must never be interpreted to defeat the course of justice and that where the effect of a strict adherence to a provision of the Rules of Court will hinder the Court from performing its primary duty of doing substantial justice between parties to a dispute, and cause injustice, the Court must jettison the provision in favour of the doing of substantial justice. This principle has been consistently reiterated by the Supreme Court over the years

“It is in this wise that the Supreme Court categorically stated that any non-compliance with the Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice or affects substantial justice in the trial of a case; not when it in no way affects the justice of the trial of a case

“The writ of summons and the amended writ of summons in the instant case were served on the Respondents, as defendants, and neither of them complained of non-signing of the processes. The parties filed their processes in the matter, conducted trial and filed their final addresses and at no time did either of the Respondents raise the issue. It was the lower Court that, refusing to mind its business, on its own brought up the issue. There was no miscarriage of justice occasioned by the alleged non-signing of the writ of summons. The lower Court failed to adhere to the admonition given by Edozie, JSC in Buhari Vs Obasanjo (2003) 17 NWLR (Pt 850) 587 thus:

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality … or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

The decision of the lower Court striking out the suit as incompetent on the ground of non-issuance of the writ of summons is thus also without merit.

“The Court must say further that it is bewildered that after the lower Court reached its decision that the writ was incompetent on the non-existing ground of its not being properly issued, it failed to go further to render a judgment on the merits of the completed trial before it. The higher Courts have warned severally that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court to, after resolving that issue, even if it is an issue jurisdiction, proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues – see the cases of Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.

“Also shockingly amazing is the failure of the Counsel to the Appellant to compile the records of the evidence led by the parties before the lower Court and of the final addresses filed by the parties as part of the records of appeal. Perhaps, if Counsel had done so, this Court might have been tempted to exercise its powers under section 15 of the Court of Appeal Act to evaluate the evidence led and enter judgment as the trial Court should have done. In these circumstances, this case has to be remitted to the lower Court to conclude the matter by delivering its judgment on the merits of the case made out by the parties.

“Before concluding this appeal, this Court considers it pertinent to reiterate that it is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice. It is matters like the present one that leaves the entire judicial system open to ridicule and the risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) made this point succinctly in State v. Akpabio (1993) 4 NWLR (Pt 286) 204 at 220 thus:

“I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.”

“In conclusion, this Court finds merit in this appeal and it is hereby allowed. The judgment of the High Court of Plateau State delivered by Honorable Justice I. I. Kunda in Suit No PLD/J339/2012 on the 14th of July 2017 is set aside.

“The case file of the matter is remitted to the trial Judge with a directive that he should do the needful to proceed to enter his judgment on the merits of the case canvassed before it by the parties. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.”




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