By EBUN-OLU ADEGBORUWA, SAN
There are many sides to justice, as we have all come to understand the term today and unless you are intrinsically involved in some of the cases, you may wonder how the wheels of justice roll.
In these two court cases involving very Senior members of the Bar, we see justice playing out in its different forms.
In one of the cases, a lawyer worked tirelessly to recover money for AMCON but he was not satisfied with what he was paid as his legal fees.
In court however, technical justice robbed him of his claims purely on the basis of the mode of exercise of the constitutional right of appeal.
In the second case, AMCON desired to have the Senior Counsel give account of his stewardship as receiver/manager, but the issue of the mode of signing the writ of summons to commence the case delayed AMCON’s claims, moving from the trial court in 2015 when it was filed ultimately to the Supreme Court in 2025 when judgment was eventually delivered, spanning a period of ten years. These two cases, both involving AMCON, were not determined on their merits as they dwelt on technical points of law regarding the jurisdiction of the court.
This is the situation with many cases that are pending in the courts, where technical issues of law have dwarfed the merits of the cases, with theresultant effect of robbing people of justice. This has in turn led to the call for all our courts to adopt the procedure of Election Tribunals, whereby all objections are incorporated into the substantive case to be determined at the end of the trial. The facts of these two cases are stated here as reported in the law reports.
ARIBISALA V AMCON (NO.1)
The respondent sued the appellant at the Federal High Court, Lagos in relation to his receivership/managership of Delta Steel Company Plc. The respondent sought inter alia an order that the appellant give account of all the funds and properties that came into his possession by virtue of his being receiver/manager of the company.
After the respondent served its writ of summons, statement of claim and accompanying documents, the appellant entered a conditional appearance and filed a motion on notice seeking extension of time to bring an application under Order 29 rule 1 of the Rules of the court; a deeming order; an order striking out the writ of summons; and an order dismissing or striking out the suit on the ground of lack of jurisdiction. The application was premised on the ground that the writ of summons was not properly issued which rendered the suit incompetent and deprived the trial court of jurisdiction. The appellant averred and contended that the writ of summons was incompetent because it was not signed by the respondent or its counsel; and that the signature of the respondent’s counsel was not on the reverse side of the writ but on a loose sheet of paper attached thereto. In opposition, the respondent filed a counter-affidavit and a written address and in response, the appellant filed a reply on points of law.
After taking arguments of counsel, the trial court in its ruling held that the writ was prepared as prescribed by its Rules and that the same was signed by the respondent’s counsel. Consequently, it dismissed the application. Dissatisfied, the appellant appealed to the Court of Appeal, which dismissed the appeal. The Court of Appeal held in its judgment that there was nothing in the Rules of the trial court that mandated the name and signature of counsel to be on the reverse side of the writ; and that the writ of summons complied with the provisions of the Rules. Still dissatisfied, the appellant appealed to the Supreme Court, which dismissed the appeal.
Form of writ of summons -
By virtue of Order 3 rules 4, 11(1), 12 (3) of the Federal High Court (Civil Procedure) Rules, 2009, except in cases in which different forms are provided for in the Rules, writ of summons shall be in Form 1 with such modifications or variations as circumstances may require. An originating process shall be prepared by a plaintiff or the plaintiff’s legal practitioner and shall be clearly printed in black ink on white opaque A4 paper of high quality. Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the registrar as being a true copy of the original process filed. The provisions provide that a writ of summons shall be in Form 1 with such modifications or variations as circumstances may require and also set out the endorsements that a writ of summons must contain. There is nothing in the provisions that forbids a writ of summons from exceeding two pages and there is nothing therein that states that the signature of counsel or other endorsement must be on the reverse side of the writ. Neither counsel nor court is permitted to read or import into the provisions of a law or enactment what it does not contain, in order to suit his or its own desires. In the instant case, the appellant’s counsel attempted to import or read into the provisions what is not contained therein. The Supreme Court will not endorse such an aberration.
When previous decision can be distinguished -
Where relevant laws have changed since a previous decision, the same can be distinguished from the latter case. A previous decision is not to be departed from or followed where the facts or the law applicable in that previous case are or is distinguishable from the facts or law in the latter case. The doctrine of stare decisis is based on the relevant likeness between two cases - the previous case and the one before the court. In this case, the case of Alatede v. Falode which the appellant placed heavy reliance on was distinguishable from the instant case as the facts of both cases were worlds apart and the provisions interpreted in the said case are different from the provisions of the Federal High Court (Civil Procedure) Rules, 2009, the rules of court in force at all time material to the application that led to the appeal.
Per JAURO, J.S.C. at page 36, para. A-G:
“The decision in Alatede’s case relied on by the appellant was rendered in 1966, more than half a century ago or one could say almost six decades ago. A reasonable legal practitioner should ordinarily realise that the Rules of court upon which the case was decided would contain markedly distinct provisions from the Rules in force at the time the action before the trial Federal High Court was initiated. One would have expected counsel to have studied the case he so heavily relied on to see if the facts are similar to the facts of this case. The law is not static, it is dynamic. As society develops, so does the law. In order to ensure substantial justice, the courts continue to do away with restrictive rules of procedure in favour of doing substantial justice. This is what is reflected in the difference between the Rules in Alatede’s case and the 2009 Rules of the Federal High Court. It is alarmingly absurd to attempt to import the provisions of Rules applicable to proceedings conducted more than half a century or almost more than six decades ago, to Rules of court made in 2009.”
SOWEMIMO V AMCON
The appellants instituted an action against the respondent seeking a declaration that they are entitled to their full professional fees of 5% of judgment debt which amounted to N5,350,000,000 as at May 2014 being the amount recovered; an order entering judgment against the respondent in the sum of N191 million being the balance of the professional fees due to them; and the costs of the litigation. The appellants’ case was that they were appointed joint solicitors by Fidelity Bank Plc in December 2010 and instructed to recover a debt arising from a loan facility of US$7,500,000 granted to a company and its personal guarantees. The appellants initiated a recovery action against them and after a two-year trial, judgment was entered in favour of the bank in the sum of US$12,926,931 or N1,977,820,556.22 with interest at the rate of 21% per annum. The Court of Appeal upheld the judgment. However, the respondent bought the debt from Fidelity Bank Plc without the appellants’ knowledge. The judgment debtors filed a notice of appeal at the Supreme Court and the appellants began making moves to prosecute the appeal. Subsequently, the appellants heard that the judgment debtors commenced settlement with the respondent and every effort was made to ascertain the veracity of the information but no response was received. The appellants were later notified by Fidelity Bank Plc that the debt had been settled and that the respondent had taken over the responsibility for counsel’s fees. The appellants averred that they were paid the sum of N61,961,380 which was 25% of what they should be paid as professional fees. They also claimed that all efforts to confirm the money recovered by the respondent from the judgment debtors so that they can adequately calculate their professional fees proved futile as they (the appellants) had agreed to take 5% of the recovered sum. The appellants contended that they are entitled to take 5% of N5.35 billion as at May 2014.
The respondent, on the other hand, averred in their statement of defence that the trial court lacked the jurisdiction to entertain the suit in which a declaration and an order were sought challenging the validity of the respondent’s executive and administrative action and decision and also, that the appellants had no reasonable cause of action. The respondent asserted that it owed no duty to the appellants to notify them of its transaction with the judgment debtors and it paid the appellants 5% of the sum recovered from the judgment debtors and not 5% of the judgment debt which the judgment debtors were still disputing as at the time the matter was negotiated out of court. The respondent stated that they had the full authority under law to negotiate with judgment debtors and arrive at an agreement without having to notify the appellants. At the conclusion of hearing, the trial court entered judgment in favour of the appellants. It declared that the appellants were entitled to 5% of N5,350,000,000 which was the judgment debt as at May 2014 and it awarded the sum of N191,000,000 in favour of the appellants. Dissatisfied with the judgment of the trial court, the respondent appealed to the Court of Appeal. In its judgment, the Court of Appeal allowed the appeal and set aside the judgment of the trial court. Aggrieved, the appellants appealed to the Supreme Court. The respondent filed a notice of preliminary objection seeking the striking out of the appellants’ notice of appeal for being defective. It contended that grounds 3.1, 3.2, 3.3, 3.4 and 3.5 of the notice were of mixed law and facts and thus the Supreme Court had no jurisdiction to entertain it by virtue of section 233 of the 1999 Constitution (as amended); and that grounds 3.6 did not flow from the judgment being appealed against and thus it was incompetent.
When appeal from decision of Court of Appeal to Supreme Court lies with leave:
The right of appeal to the Supreme Court against the decision of the Court of Appeal as of right is provided under section 233(2) of the 1999 Constitution (as amended). Other than as provided therein, the National Assembly has not made any law enlarging the scope of the right of appeal as of right. In all other cases, the appeal must be with either the leave of the Court of Appeal or the Supreme Court, as the case may be, as provided in section 233 (3) of the 1999 Constitution. Where the grounds of appeal are either of facts alone or of mixed law and facts, they can only be countenanced if filed with the leave of court first sought and obtained. The appellate jurisdiction of the Supreme Court on questions of fact only exists where there has been leave of the Court of Appeal or of the Supreme Court. No appeal on questions of fact lies to the court without such leave. In other words, where a question of fact has been brought before this court without leave, the court has no jurisdiction. The Supreme Court has no jurisdiction to hear and determine an appeal premised on grounds of fact or mixed law and fact unless the leave of court has been sought and obtained. In the instant case, the grounds of appeal raised questions of mixed law and facts. Therefore, the appeal was incompetent and liable to be struck out.
Per IDRIS, J.S.C. at page 614, paras. A-D:
“There is no gain saying that this preliminary objection was properly grounded on the constitutional provisions on what makes a valid appeal upon which the jurisdiction of the court can be predicated upon. Having gone into the objection in relation to the complaints proffered, there is no hope in sight upon which this appeal can survive, being an appeal with grounds of mixed law and or facts the mandate of the Constitution cannot be circumvented without the leave of the Court of Appeal or this court. The absence of that leave has rendered this appeal incompetent as such leave is a condition precedent for a valid appeal, thereby robbing this court of the jurisdiction to entertain this matter.”
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