3PLR – LAWRENCE OKWUEZE V. EMMANUEL EJIOFOR
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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LAWRENCE OKWUEZE
V.
EMMANUEL EJIOFOR
COURT OF APPEAL
ENUGU DIVISION
8TH JUNE 2000
CA/E/182/97
3PLR/2000/163 (CA)
OTHER CITATIONS
[2000] 12 WRN 89
BEFORE THEIR LORDSHIPS
EUGENE CHUKWEMEKA UBAEZONU
JOHN AFOLABI FABIYI
MUSA DATTIJO MUHAMMAD
BETWEEN
LAWRENCE OKWUEZE
AND
EMMANUEL EJIOFOR (for himself and on behalf of Ejor Omodi family of Iyiawu Quarter, Onitsha)
REPRESENTATION
G.R.I. Egonu (SAN) , With D.I. Uneji ESQ. – for appellant
M.U. Ikem., with F.O. Ogbutor ESQ. – for respondent
MAIN ISSUES
CONSTITUTIONAL LAW – JUDICIAL PRECEDENT – Decisions in Ojeme v. H.H Momodu II and Oyeyinka v. Osague- purport of.
PRACTICE AND PROCEDURE – COURT – Contempt proceedings – forms 48 and 49 – purpose of.
MAIN JUDGEMENT
MUSA DATTIJO MUHAMMAD, JCA.: (Delivering the leading judgement)
This is an interlocutory appeal against the ruling of Hon. Justice C.J. Okoli of the Onitsha Judicial Division of the Anambra State High Court, dated 8th July, 1996.
The Respondent in this Appeal as plaintiff had commenced action in suit No.0/414/83 against the appellant who was the defendant. Subsequently the trial court on 11th January 1984 obliged the respondent an order of interlocutory injunction against the appellant. This order was allegedly breached and respondent accordingly started committal proceedings against the Appellant. This was on 5th February 1996. Appellant raised preliminary objection as to the competence of the proceedings. The trial court overruled him. The appellant was dissatisfied with the ruling of the trial court . He now appeals against the ruling.
The four issues formulated by the appellant, as drawn from the grounds of appeal, for the determination of the Appeal are as follows:-
- Whether the learned trial judge was right in failing to determine all the issues raised against the competency of the committal proceedings and was such determination not a pre-requisite to the hearing of the committal proceedings on the merits
- Whether the learned trial judge was right in holding that the issuance of Form 48 was the responsibility of the Assistant Chief Registrar, High Court, Onitsha, and that the failure to endorse form 48 on the order sought to be enforced was a mere irregularity.
- Whether a copy of the order sought to be enforced stapled to the form 48 in this case and served on the appellant was in compliance or sufficient compliance with the Rules.
- Whether the appellant waived his right to object to the competency of the committal proceedings by his filing of a counter-affidavit against the said proceedings.
The Respondent also conceived four issues for the determination of the appeal. These are:-
- Whether the learned Trial Judge did not consider all the issues raised in the preliminary objection in coming to his decision.
- Whether the learned Trial Judge was correct in holding that the issuance of form 48 was the responsibility of the Assistant Chief Registrar of High Court Onitsha and that the failure to endorse Form 48 on the order sought to be enforced was a mere administrative irregularity.
- Whether as in the instant case, a notice in Form 48 stated to be accompanied by an order of the court and Form 48 which omitted the word “NOT” which appeared between the words “SHOULD” “BE” and which were proven duly issued and served on the appellant were in compliance with the relevant Rules of Court.
- Whether by filing a counter-Affidavit in reaction to the application for his committal the Appellant had thereby waived his right to object to the committal proceedings.
Carefully considered, the one set of issues is subsumed in the other set. The set of issues formulated by the respondent are hereby preferred and adopted for the resolution of this Appeal.
The appellant’s objection as to the competence of the committal proceeding initiated against him at the lower court was based on three points.
These are:-
(i) “That the form 48 issued and served on appellant was not in conformity with the Form 48 provided for under Order 9 rule 13(1) of the Judgement Enforcement Order Cap.118 Volume 7 Laws of the Anambra State.
(ii) That the form 48 issued and served on appellant equally offended order 9 rule 13(2) of the same Cap. 118 Volume 7 and
(iii) That the Respondent as applicant failed to marry the provisions of order 9 rule 13(1) and (2) of the Judgements (Enforcement) Rules with the provision in order 35 rules 1, 2, and 3(3) of the High Court Rules 1988 in the committal proceedings.
Appellant relied on the following judicial authorities. Alhaji S.O Oyeyinka v. Ahu Yesufu Osague. (1994) 2 NWLR (Pt. 328) 617 at 630 and Joseph A. Ojeme & Anor v. H.H Momodu II (1995) 6 NWLR (Pt. 403) 584 at 597 and 598.
The lower court’s ruling in respect of Appellant complaints are reflected at pages
18-20. The objection of the appellant was overruled in the following tenor:-
“The issuance and service of form 48 is the duty and responsibility of the Registrar. It is not the function of the applicant, it is an administrative irregularity. It is also pertinent to note that the defendant/respondent had filed a counter-affidavit in the matter of the said committal proceedings and having taken a step in the proceedings, they are deemed to have waived the said administrative irregularity: Ebo v. Akpolu (1968) NWLR 27 see also Obayemi v. Orisamo & Anor. (1967) NMLR 27. The preliminary objection is overruled. I shall proceed to hear the application for committal.”
Perhaps needless to state, the court in overruling the objection had agreed with respondent who as plaintiff had argued that there was substantial compliance with the rules of court. The appellant having failed to act timeously would not be allowed to have the proceedings set-aside on the basis of a mere irregularity. It is also the view of the court that the irregularity had been waived.
Appellant has represented the same arguments before us under their first issue. He urged us to hold differently from the decision of the lower court. It is contended that committal proceedings being criminal or quasi criminal in nature, every procedural step therein must be strictly followed. The two forms issued and served on appellant had failed to comply strictly with the relevant rules of procedure. The failure was fata and vitiated the proceedings. Appellant further cited the following cases Chief Darby Akpan & Ors v. Chief Effiong Akpan & Ors. (1996) 7 NWLR 620 at 626 and High Chief Kingston Ebo Bonie & Ors. v. Samuel Moses Oynbo Gold (1996) 8 NWLR (Pt. 465) 230 at 238.
Appellant contended that the decision of the lower court was perverse, it should be interfered with. The court had failed to determined the relevant issues necessary before deciding to hear the application for committal. An appellate court is entitled to so determine these issues. Counsel relied on :-Chief Festus Yusuf v. Co-operative Bank Limited (1994) 7 NWLR (Pt.359) and Igbenogbodua Ogigie & Ors. v. Omo N’oba N’edo Akpolokpolo & Anor
Lastly under this issue, appellant further submitted that the lower court is bound by
this court’s decisions in Oyeyinka v. Osaghe supra.
Appellant argued his 2nd and 3rd issues jointly. His counsel submitted that the respondent before us was the prosecutor in the committal proceedings The Registrar who issued forms 48 and 49 was not the prosecutor. It is contended that in Akpan’s case the Registrar who issued the copy of the order served on the respondent was not held responsible for the non-compliance with the rules of court. It was therefore wrong in the instant case for the trial court to have held differently. Since the respondent had not initiated the committal proceedings as required by law the appropriate decision of the lower court should have been to sustain appellant’s objection and to dismiss respondent’s application. This was commended by the decisions in Chief Eyo Ogbohi & Ors v. Chief Ojahajah (1989) 1 NWLR (Pt. 100) 725 at 734 and Gordon v. Gordon (1946) 1 All Er 247 at 250.
For his 4th issue appellant contended that none of the parties to the matter before the trial court raised the issue of waiver.
The issue was never canvassed. The judge made for the parties a case they never made for themselves. The mere filing of counter affidavit was not sufficient to constitute a waiver of a party’s right to object. Appellant also submitted that the two cases relied upon the trial court i.e. Chief Okuma Ibe Eboh & Ors v. Oghotemi Okpotu (1968) NMLR 278 and Obayemi v. Obisamo & Ors (1967) NWLR 27 were all civil cases. They are quite inappropriate and inapplicable to proceedings of criminal or quasi-criminal nature.
Appellant contended that his right to object cannot be said to have been waived on the basis of these decisions.
Appellant urge that the Appeal, for the reasons so argued, be allowed.
It does seem that Respondent’s arguments in respect of his 1st, 2nd and 3rd issues for determination were made jointly.
Respondent argued that the trial court did adequately consider the issues raised by the defendant’s/appellant’s objection before arriving at the decision it did at P. 18 – 20 of the Record of Appeal. In particular, at p. 19 lines 9-10 the court considered the effect of non-compliance with Order 9 rule 13(1) and (2) of the Judgements (Enforcement) Rules of the Sheriffs and Civil Process Law Cap. 118 applicable to Anambra State. Evidence abound, the respondent contended, showing that both the court order and forms 48 and 49 were served on the respondent. It was on the basis of this evidence that the court rightly held that the respondent remained at all material time to the proceedings, the applicant he was. The responsibility of issuing the court processes was that of the Registrar. Any lapse in the process of issuance of the court processes must be held to be that of the Registrar.
Respondent argued further that the trial court in arriving at the decision had effectively married the provisions of order 9 rule 13(1) and (2) of Cap. 118 with the provisions of order 35 rules 1 and 2 of the Anambra State High Court Rules 1988. The ruling of the trial court, respondent submitted, was in keeping with all decided cases referred to by the appellant.
It must be emphasized, the respondent contended, that the import of the two rules of court was to ensure that the contemnor was given opportunity of being heard before the court dealt with him. The steps the Respondent took, by the finding of the trial court, had sufficiently given the appellant the required notice. The counter-affidavit of the appellant, particularly paragraphs 4, 5, 6 and 7, was sequel to his awareness of respondent’s application. The awareness was by virtue of the service on appellant of forms 48 and 49 by the respondent. The appellant had the required notice. By the very cases appellant relied upon, respondent’s application was quite in order. All the authorities referred to by appellant cannot avail him in the view that all slips no matter how minor must vitiate the proceedings so ably commenced.
Respondent’s argument in respect of the 4th issue was brief and direct: the court was right to have considered the totality of the issues before it from the materials placed for its consideration. The court rightly made its inferences from the counter-affidavit before it. With the deposition made therein by Appellant, it was no longer possible to allow the appellant to resale from a position which facts had shown he was perfectly aware of. Even if the lapses in the issuance of forms 48 and 49 had constituted irregularities, the appellant’s conduct of filing his counter-affidavit did constitute an effective waiver. Respondent relied on Ebo & Ors. v. Akpotu and Obayemi v. Orisamo & Anor. supra in support of this contention. He urged us to affirm the decision of the trial court and to dismiss the appeal.
It now must be answered what the effect of the slips in the issuance of forms 48 and 49 by the Registrar of the lower court was. The appellant seems to urge us on the authorities of the cases he relied on that all slips, no matter how trivial and unrelated to the substance of the proceedings in relation to which the slip occurred, must be held to vitiate those proceedings. I am unable to read this view into the decision on the basis of which the submission was made.
I agree with appellant’s counsel that proceedings for contempt being one that affect the liberty of a citizen, strict observance must be made to form and procedure. This has been the import of virtually all decisions on the issue see Onagoruwa v. Adeniji (1993) 5 NWLR (Pt.293) 317 at 349 CA; Alhaji S.O. Oyeyinka v. Ahu Yesufu Osage (1994) 2 NWLR (Pt.328) 617; Joseph A. Ojeme & Anor v. H.H. Momudu II (1995) 6 NWLR (Pt.403) 583.
It is however my considered view that not all instances of non-compliance with these forms and procedure will constitute a fundamental slip capable of overturning a decision arrived at inspite of the slip. Where as in the instant appeal the defects is (sic) both forms 48 and 49 are trifles and insignificant such slips cannot be held to be fundamental and incapable of being disregarded.
See Mora v. Adeyeye (1990) 4 NWLR (Pt. 142) 76 at 87. The slips have not gone to the root of the proceedings. To allow these irregularities to forestall the proceedings would be to lean on the side of technicalities. This, an appellate court should refrain from. See Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 190 SC; Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 471-472 and Adeniji v. State (1992) 4 NWLR (Pt. 234) 248 CA.
In A.Y. Ojikutu v. Francis E. Odeh (1954) 14 WACA 640 referred to and applied by the Supreme Court in Akpan v. State supra, an apt dictum of Thesiger L.J. in Collins v. Vestry of Paddington (1880) 5 O LB 308 at p. 38 was quoted thus;-
“Blunders must take place from time to time and it is unjust to hold that because a blunder…… has been committed the party blundering is to incur penalty of not having the dispute between him and his adversary determined upon the merits”
It is discernible from the decisions in Ogba v. State and Akpan v. State supra that even in criminal matters let alone quasi-criminal proceedings into which committal proceedings have been classified, it is far from the proper role of a court of law to uphold technicality at the expense of substantial justice.
In the instant case by virtue of order 9 rule 13(1) and (2) of the Judgement (Enforcement) Rules Cap. 118 Laws of Eastern Nigeria 1963 applicable to Anambra State the authority to issue forms 48 and 49 lies in the Registrar of the court. For ease of reference the rule and sub rules are hereby reproduced.
13(1) “When an order enforceable by committal under section 71 of the law has been made the registrar shall….on the application of the judgement creditor, issue a copy of the order endorsed with a notice in form 48 and the copy so endorsed shall be served on the judgement debtor in like manner as a judgement summons.”
13(2) If the judgement debtor fails to obey the order the Registrar on application of the judgement creditor shall issue a notice in form 49 not less than two clear days after services of the endorsed copy of the order and the notice shall be served on the judgement debtor in like manner as a judgement summons.” (italics supplied for emphasis).
By this rule and sub rules compliance is sought for the attainment of a specific goal. The issuance of the two forms, i.e. form 48 and 49, by the registrar of the court is sustained desire to remind the person against whom the two forms were issued of two things. Firstly, that a court order exist which the party was commanded to obey. Secondly, by form 49 such a person is notified that proceedings to enforce the order of the court would therefore be commenced against him. That is the essence of the issuance of the two forms:
In the instant case that objective had been achieved inspite of the slips complained by the appellant. Not only was the appellant effectively reminded of the existence of the legitimate order of court which required his compliance, the fact that proceedings would be commenced against him because of his alleged continued disobedience of the same order had also been effectively communicated to the appellant. Indeed it was on the basis of this communication that appellant filed his counter-affidavit and in paragraphs 4, 5, 6 and 7 denied being in contempt of the said court order. These denials were made inspite of the slips which appellant complained about.
It is well settled that a breach of rule of practice such as the slips which agitated the appellant can only render a proceeding irregular. Lapses in this realm do not render the proceedings a nullity. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 388 at 426 SC and Adebayo vs. Shonowo (1969) 1 ALL NLR 176 at 190.
Furthermore, it is equally trite that where the non-compliance with the rules of practice was on the part of the court, the defect, as rightly held by the lower court, was merely administrative. It is incapable, just because of the fact of the lapse, of rendering the court process so issued or proceedings consequent upon same void. Thus where a party has done all that is required of him in law to commence an action, he cannot be held responsible for every other failure attributable to official ineptitude. See Alawode vs Semoh (1959) SCNLR 91 and Ogbunyinya vs. Okudo (No.2) (1990) 4 NWLR (pt. 146) 551 at 570 to 571
In Saude v. Abdullahi supra, it was also held that an applicant who had fulfilled his part of the procedural requirement had no bother where the judge or the court did not comply with the rules as prescribed.
The Appellant had argued that going by the decisions in Ojeme v. H.H. Momodull and Oyeyinka v. Osague supra, it did not matter whether the non-compliance was brought about by a court official or the applicant. The most important consideration by the courts had always been the fact that non-compliance had occurred. Once proved, proceedings are negated because of the slips.
The appellant, in my considered view, cannot be totally right. In the two cases (Ojeme v. Momodu and Oyeyinka v. Osague supra) the procedure adopted by the applicants completely ignored the provisions of order 9 rule 13(1) and (2).
Applicants therein, unlike in the instant case, did not apply for and forms 48 and 49 were infact not issued by the Registrar. The issue before us is that these forms had been applied for but were incorrectly issued. I am confident that the decisions in Ojeme v. Momodu and Oyeyinka v. Osague would have been different if the two had ensured on the basis of the same facts as those in the instant appeal. I am unshaken in my view and I remain so because of Supreme Court’s decisions in Saude v. Abdullahi, Ogba v. State, and Akpan vs. State supra; The statement of the law therein, the twin doctrines of precedent and stare decisis apart, is to me just, and therefore sound and correct.
For the avoidance of doubt let us relate the decision taken in respect of appellant’s first issues to his actual complaints. These were the major ones:-
(a) Regarding the issuance of form 48, the words “in this order” were omitted from the words which constituted the issued from. Instead, the words “in the order accompanying this notice “were used in the form 48 purportedly served the appellants.
(b) As to form 49 that was issued and served on the Appellant, he was “required to attend court to show cause why his committal should be made” By the actual form 49 that was envisaged by the rules of court, appellant was “required to attend court to show cause, why his committal should NOT be made. In essence the word “Not” was omitted in the issued form.
These were the lapses which the Appellant argued were so fundamental. The slips were fatal to the proceedings and failure of the trial court to so hold was perverse.
I have reasoned that this argument cannot be bought.
By way of emphasis let me restate that appellant was not misled by the fact of the slips as to what the court required of him. The order of Court which he allegedly disobeyed was serve on him. The caption, the sure title, of form 49 effectively asked the appellant to proceed to court. What for? To explain why the order of Court “which accompanied” form 48, word for word and which order the appellant allegedly disobeyed should not be enforced. It was in the committal proceedings subsequent to these preliminary steps that the actual merits of the case of the two sides would be heard. Appellant had just been dragged to court. He knew why. Justice had not been compromised. Because of the slips which appellant so vehemently stressed on.
Under the 4th and last issue appellant insist that this act of filing a counter-affidavit to the Applicant’s motion did not constitute a waiver on his part. I am afraid. That singular act of his, in its effect, must be held to have constituted a waiver of the irregularity which appellant sought to rely on to vitiate the entire committal proceedings. It was by virtue of appellants deposition in this counter-affidavit that the court made some revealing inferences: that appellant had been asked through the court processes so irregularly issued to proceed to court; that the purpose of the command was for the appellant to explain why an order of the court he allegedly disobeyed should not be enforced.
It was therefore not correct, too, to assert the issue of waiver was raised suo motu by the court below. As correctly submitted by the respondent’s counsel, the decision of the court must be based on the totality of the evidence made available to it. It is sheer fantasy to claim that appellant’s counter-affidavit was not part of this evidence which the trial court as a matter of law had to exploit.
In conclusion, whether or not the appellant would be allowed to exploit the slips in the issuance of the relevant forms depends largely on the existence of one fact and not the other. The most important question to answer is not whether appellant had acted timeously. The right question to ask is whether the non-compliance had, no matter by whom committed, and at what stage of the proceedings the objection is raised, occasioned injustice to the appellant. The answer must be positive to upturn a decision.
In the case at hand I have answered the question in the negative. In essence, the irregularity has continued for what it is for two reasons. Firstly appellant has not convinced us as to the injustice the irregularity occasioned. He failed to convince the court below. Secondly, irregular proceedings can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity. See Saude v. Abdullah; supra; Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619; Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 195 and Ogbunyinya v. Okudo (No.2) supra. Appellant did not act timeously. He took a fresh step by filing his counter-affidavit after discovering the irregularity he sought to exploit.
Finally, the effect of slips on proceeding in courts, it is surmised, invariably depends on what adjectival laws in respect of such courts speak of them. Decisions which did not evolve squarely on our consideration of the slips in the light of those adjectival provision, cannot be commended as ratios worthy of subsequent use. Cap.118 of the Laws of the Eastern Nigeria 1963 does not by itself specify the effect of slips such as those the subject matter of this Appeal. The High Court Rules of Anambra state on the other hand seem to offer some hope. It appears the rules have specified the effect of these lapses. Order 26 rules 4(1)-(2) and 5 states:
4(1) An application to set aside for irregularity any step taken in any proceedings or any document, judgement or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.
(2) Any application under the foregoing paragraph may be made by motion on notice, and the grounds of objection shall be stated in the notice of motion.
- No proceedings in the court , and no process, order, ruling judgement issued or made by the court shall thereafter be declared void solely by reason of any defect in procedure or writ or form as prescribed by these rules:
Rather every court shall decide all issues according to substantial justice without undue regard to technicalities.
The provisions are clear and unambiguous. We are bound by the plain words therein contained. See the supreme courts decision in Udoh v. O.H.M.B. (1993) 7 NWLR (pt. 304) 139; Okumagba v. Egbe (1965) 1 All NLR and African Newspapers v. The Federal Republic of Nigeria (1985) 2 NWLR (pt.6) 137.
Infact a contrary application of these clear words would lead to absurdity. A court must dutifully refrain from giving absurd effect to statutes by the manner of its construction of same see Garba v. FCSC (1988) 1 NWLR (pt. 71) 449; Kanada v. Government Kaduna State (1986) 4 NWLR (pt.35) 361 and Salami v. Chairman LEDB (1989) 5 NWLR (pt. 123) 539.
By virtue of these provisions, a given procedural lapse must be considered on the peculiar facts of the proceedings it is claimed to have affected. It thus becomes a question of fact whether or not the particular lapse has occasioned injustice to make it a fundamental slip. If a complainant fails to prove the injustice caused him by virtue of the slip as in the instant case, the lapse is adjudged an irregularity no matter by whom caused. Appellant’s case becomes all the more hopeless where he had taken a fresh step in the face of a slip that had placed him at no disadvantage.
The justice of the case at hand demands that we insist on our view.
The appellant’s objection at the court below must have been raised pursuant to order 26 rule 4(2). And there comes immediately after, an emphatic sub rule 5. It is the duty of an appellate court to exploit the provision of this sub rule to sustain the justice of the matter at hand.
It must be recalled that the committal proceedings sought to be initiated and which appellant objected to was commenced pursuant to two adjectival Laws: the Anambra State High Court Rules and Cap.118 of the Laws of Eastern Nigeria 1963.
Appellant for all that I tried to say, cannot be obliged the indulgence he seeks. Like the three preceding issues for determination in this appeal, the fourth is also resolved in favour of the respondent. Respondent’s committal proceedings having been commenced by the due process of law was competent. It could be heard.
The grounds of Appeal filled by appellant have failed. The Appeal is accordingly dismissed. The decision of the lower court is hereby affirmed. N3,000.00 cost ordered in favour of Respondent.
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.:
I have had the opportunity of reading in draft the judgement of my learned brother Muhammed JCA. I am unable to persuade myself to agree with the conclusions reached by him despite his superb reasoning.
Both the appellant and the respondents in this appeal formulated four issues each for determination. The four issues of each party resolve on whether the procedure for committal for contempt by using form 48 and 49 was strictly followed and secondly, whether the appellant waived any irregularity in compliance by filling a counter-affidavit.
Let me deal first with the issue of compliance with the procedure laid down for a committal proceeding. Rule 13(1) of Order 1X of Judgement (Enforcement) Rules requires the registrar, on the application of a judgement creditor to issue a copy of the order which the judgement debtor breached and for which his committal is sought. This copy of the order shall be endorsed with a notice in form 48 and the copy so endorsed shall be served on the judgement debtor in like manner as a judgement summons. In like manner, under rule 13(2), if the judgement debtor fails to obey the order, the registrar, on the application of the judgement creditor shall issue a notice in form 49 not less than two clear days after service of the endorsed copy of the order and the notice shall be served on the judgement debtor in like manner as the judgement summons. It is admitted on both sides of the contest that there are some irregularities in compliance with the above procedure. The question is whether those irregularities are fatal to the committal proceeding.
It has been held in a number of decided cases that committal proceeding being of quasi-criminal proceeding which seeks to deprive a citizen of his liberty in civil case, the procedure laid down by law must be strictly followed- See Oyekan v. Osagie (1994) 2 NWLR (pt. 328) 617; Ojeme v. Momodu ll (1995) 6 NWLR (pt. 403) 538. In Mora v. Adeyeye (1990) 4 NWLR (pt. 142) 76 the Court of Appeal held that proceedings for contempt being one that affects the liberty of the citizen, strict observance must be paid to form and procedure.
As regard the facts of the case in this appeal, I would say that the irregularity in Form 48 is not serious enough to vitiate the proceeding in the lower court. The serious irregularity that goes to the root of the case is the irregularity affecting form 49. The last paragraph of form 49 reads as follows:-
“And further take notice that you are hereby required to attend the court on the first mentioned day to show cause why an order for your committal should NOT be made.” (capital mine for emphasis)
But what was served on the appellant as form 49 reads in the last paragraph
“And further take notice that you are hereby required to attend the court on the first mentioned day to show cause why an order for your committal should NOT be made.”
The word “not” was omitted in the form served on the appellant. The omission of the word “not” makes the form served on the appellant completely different from the form that ought to be served on him. In fact, it is the exact opposite of the form that ought to be served on him. In the form served on the appellant, he was expected to prosecute himself by showing cause why an Order for his committal should be made. Suppose a person on whom such a form is served goes to court and folds his hands and says. ‘I am not prepared to show cause why my committal should be made.’ What would the court do? Would the court proceed to commit him because he did not show cause why he should be committed. The true position is that form 49 as required by law has not been served on him. The respondent should start all over again. What was serve on the appellant was not form 49. It cannot initiate committal proceeding against the appellant. All the criminal cases referred to in this appeal have nothing to do with committal proceeding.
Let me deal with one argument which has been advanced i.e that the irregularity is not the fault of the parties but that of the Registrar. The argument holds no water. Suppose the Registrar issued the notice in form 49 and is less than two clear days after service of the endorsed copy of the order contrary to the provisions in the form, can anybody argue that because it was issued by the Registrar it would not matter? Suppose the orders are served in a manner contrary to the manner judgement summonses are served, can it be argued that the bad service is alright because it was not the fault of the party? This question can be asked in respect of every other process of the court. It is the duty of a party or his Solicitor to ensure that the provision of the law is complied with since most of our Registrars are not learned in the law. It is my view that to ignore every mistake of the Registrar on the excuse that it is not the fault of the party will be to throw the proceedings of the court to the winds. This is not a matter of mere technicality.
On the question whether the filing of a counter-affidavit constitutes a waiver of the irregularity, the position is that what was served on the appellant was fundamentally and incurably defective.
There can be no waiver of a process that is fundamentally defective.
In the final analysis, I allow this appeal and set aside the decision of the lower court. I award N3,000 to the appellant.
JOHN AFOLABI FABIYI, JCA
I had a preview of the lead judgement by my learned brother, M.D. Muhammad, JCA. I completely agree with his reasons leading to the conclusion that the appeal is devoid of merit and should be dismissed.
The stark reality of this matter relates to the fact that the Registrar of the lower court, in issuing forms 48 and 49 on the appellant, goofed in certain respects. An administrative irregularity ensued. The forms, with the slips therein, were duly served on the appellant who, consequently, filed a counter affidavit to buttress his innocence. He then raise a preliminary objection as to the competence of the process which the trial court over-ruled.
It is not proper to invoke the administrative blunder of the Registrar of the Trial Court against the respondent. This is more so as the defects pin-pointed in the forms served on the Appellant are trifles. They are insignificant. Since the slips are not fundamental, they should not vitiate the proceedings. See Mora v. Adeyeye cited in the lead judgement.
The appellant, who perceived the slips in the forms served on him, filed a counter-affidavit before taking his objection. He cannot complain that the trial court considered his counter-affidavit in his ruling. I strongly feel that by filing a counter-affidavit, the appellant clearly waived the irregularities surmised in the forms served on him. After all, waiver is the voluntary relinquishment of a known right or surrender of opportunity to take advantage of some defect, irregularity or wrong. See Ariori v. Elemo (1983) 14 NSCC 1; (1983)1 S.C. 13.
I need to stress the point that a court of law should always strive to do substantial justice. Invariably, such a stance must be to the detriment of technicality. See Akpan v. The State cited in the lead judgement. Refer to Obadiaru v. Grace Unique (1986) 3 S.C. 39 at page 44.
For the reasons and the course the fuller ones adumbrated in the lead Judgement, I come to the conclusion, like my learned brother, that the appeal should be dismissed. I order accordingly. As well, endorsed the order relating to costs in the lead judgement.
Cases referred to in the judgement:
Adebayo v. Shonowo (1969) 1 All NLR 176
Adeniji v. State (1992) 4 NWLR (pt. 234) 248
African Newspapers v. The Federal Republic of Nigeria (1985) 2 NWLR (pt.6) 137
Akpan v. Akpan (1996) 7 NWLR 620
Akpan v. State (1992) 6 NWLR (pt. 248) 439
Alawode v. Semoh (1959) SC NLR 91
Ariori v. Elemo (1983) 14 NSCC 1; (1983) 1 S.C. 13
Collins v. Vestry of Paddington (1880) 5 OLB 308
Ebo Bonie v. Gold (1996) 8 MWLR (Pt. 465) 230
Eboh v. Akpotu (1968) NMLR 27 All NLR 220
Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 195
Garba v. F.C. S.C. (1988) 1 NWLR (pt. 71) 449.
Kanada v. Government of Kaduna State (1986) 4 NWLR (pt 35) 361
Mora v. Adeyeye (1990) 4 NWLR (pt. 142) 76 at 87
Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619
Obadiara v. Grace Uyiqwe (1986) 3 S.C. 39
Obayemi v. Orisamo (1967) NMLR 27
Ogba v. State (1992) 2 NWLR (pt. 222) 164
Ogbuanyiya v. Okudo (No. 2) 1990 4 NWLR (pt. 146) 551
Ojeme v, Momodu II (1995) 6 NWLR (pt. 403) 584
Ojikutu v. Odeh (1954) 14 WACA 640
Okumagba v. Egbe (1965) 1 All NLR 62
Onagoruwa v. Adeniji (1993) 5 NWLR (Pt.293) 317
Oyeyinka v. Osague (1994) 2 NWLR (pt. 328) 618
Salami v. Chairman LEDB (1989) 5 NWLR (pt. 123) 539.
Saude v. Abdullahi (1989) 4 NWLR (pt 116) 387
Udoh v. O. H.M.B (1993) 7 NWLR (pt. 304) 139
Legislation referred to in the judgement
Judgement Enforcement Rules Cap. 118 Laws of the Eastern Nigeria 1963 applicable in Anambra State- Or. 9 r. 13(1) and (2)
High Court of Anambra Rules, 1988 Or. 26 rr. 4(1)(2), 5
