Non-compliance of court rules, mere irregularity
THE jurisdiction a court donated either by the constitution or by statute remains unaffected by breaches of rules of court.
So held the Supreme Court holden in Abuja in an unanimous leading judgment by his Lordship: F. F. Tabai JSC, with his learned brothers: G.A. Oguntade and J. O. Ogebe, J.A. Fabiyi, O.O. Adekeye (JJSC), concurring while dismissing the appellant’s appeal. The parties were represented by Emeka Okoro for the appellant and Emeka Okpoko for the respondent. The facts are as contained in the body of the judgment.
The action was commenced at the High Court of the Federal Capital Territory Abuja on or about July 29, 2003, by a process described and headed as “originating summons”. The plaintiffs were the respondents at the court below and also the respondents here. The defendant was the appellant at the lower court and also the appellant before this court. In the originating summons, the respondents prayed for:
* A declaration that the 1st plaintiff is the lawful wife of the deceased, having been married under the Act;
* An order of court vacating the caveat filed by the defendant and her solicitor at the Probate Registry stopping the plaintiffs from obtaining letters administration of the deceased estate;
* An order grating accelerated hearing of this suit;
* And for further and other orders as this honourable court may deem fit to make in the circumstance.
A notice of preliminary objection dated October 10, 2003, was filed. It prayed that the suit be struck out for being incompetent and a flagrant abuse of court process. The grounds for objection were to be:
* That the court lacks the jurisdiction to hear the case;
* That the suit was not commenced in accordance with the prescribed rules of court;
* That the claim being contentious involves substantial dispute of facts; and
* That all necessary parties and material facts are not before the court.
The preliminary objection was argued. In its ruling on December 11, 2003, the objection was dismissed for lack of merit.
The 1st defendant proceeded on appeal to the court below. By its unanimous decision on March 24, 2005, the appeal was dismissed.
She has come on further appeal to this court. The parties have, through their counsel, filed and exchanged their briefs of argument.
In the appellant’s brief of argument, Mr. Emeka Okoro formulated the following three issues for determination:
* Whether the suit at the High Court was commenced by due process of law to enable the court assume jurisdiction;
* Whether the appellant was estopped from raising an objection as to whether an action had actually been commenced because she had filed a counter-affidavit and a further affidavit in the matter;
* Whether the issues that were placed before the High Court of the Federal Capital Territory for determination are such as could be determined by way of originating summons proceedings.
On behalf of the 1st – 4th respondents, Emeka Okpoko formulated only two issues in their brief. The issues are:
* Whether the Court of Appeal was right in upholding the ruling of the trial court that the suit was commenced by due process of the law to enable the court assume jurisdiction.
* Whether the Court of Appeal was right in dismissing the appeal on the ground that the filing of a counter-affidavit by the appellant wherein issues were joined with the respondents amounted to taking steps in the proceedings to constitute a waiver of her right.
On the first issue of whether the suit was commenced by due process of law to have invoked the jurisdiction of the court, learned counsel for the appellant submitted that there were three defects, which deprived the court of jurisdiction. The first is that the summons was not singed by the registrar of the court and which defect offends the provisions of Order 6 Rule 8 of the Federal Capital Territory High Court Rules 1989. The second, according to counsel, is that the summons did not contain statement of questions for determination and which offends Order 6 Rule 3 of the Rules. And the third is that not all persons, whether adult or minor, entitled to share in the estate of the deceased are parties.
It was his submission that the non-compliances are fundamental and have, therefore, failed to invoke the jurisdiction of the High Court.
With respect to the second issue of whether the filing of a counter-affidavit and a further affidavit by the appellant constituted a waiver as to preclude her from raising this preliminary objection, the substance of argument of learned counsel is that jurisdiction is determined by the originating processes filed by the plaintiff and not by steps taken by the defendant in a case and, therefore, that the filing of affidavits by the defendants would not create jurisdiction, which the plaintiffs/respondents failed to invoke by their purported “originating summons”.
On the third issue of whether the issues placed before the court were such that could be determined by way of originating summons, it was the submission of learned counsel that the proceedings would involve the resolution of hotly disputed facts for which origination summons’ proceedings is inappropriate.
Mr. Emeka Okoro urged finally that the appeal be allowed. On behalf of the 1st – 4th respondents, Mr. Emeka Okpoko made the following submissions. On the first issue, he quoted extensively portions of the judgment of the Court of Appeal and submitted that it was perfectly right in its findings and conclusions.
He referred to Order 6 Rule 3(1) of the Federal Capital Territory High Court Rules 1989 and submitted that the originating summons is in substantial compliance with the rules. It was his further submission that rules of court are merely rules of procedure and that they do not themselves alone confer jurisdiction, contending that they merely regulate the exercise of jurisdiction conferred by statute.
With respect to the failure of the registrar to sign the originating summons, learned counsel for the respondents submitted that under Order 6 Rule 8 (supra), it is the duty of the court officials and not that of the plaintiffs/respondent to sign the originating summons, contending that the law only enjoins the plaintiffs/respondent to submit enough copies to the registrar after paying the necessary fees and which copies were indeed submitted to the registrar.
On the issue of whether the subject matter was appropriate for the issuance of originating summons, learned counsel contended that the issue submitted to the court for determination is “who is the lawful wife of late Chief Mark Okoye” and for which determination a statutory marriage certificate was exhibited.
It was counsel’s further submission that even if there is any non-compliance, it is one as to form only and not of substance and amounts only to an irregularity curable by Order 2 Rule 1 of the High Court Rules.
On the second issue of whether the appellant’s filing of a counter-affidavit and a further amount to taking steps in the proceedings constitute a waiver of her right to the preliminary objection, learned counsel for the respondents answered it in the affirmative. It is his submission that a party who becomes aware of non-compliance with the Rules of Court is to apply to strike out same before taking any further step in the proceedings. He urged in conclusion that the appeal be dismissed.
Let me proceed to deliberate on the issues raised.
With respect to the first issue, the first ground of the objection is that the summons was not signed by the Registrar of the Federal Capital Territory High Court as required by Order 6 Rules 8 of the Rules of that court.
The jurisdiction of a court donated either by the constitution or by statute remains unaffected by breaches of rules of court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rules 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the court and even counsel for the parties.
The second ground for the objection “that the originating summons did not contain statement of questions for determination” contrary to Order 6 Rules 3 of the Federal capital Territory High Court Rules.
It is clear from the provision of Orders 6 Rules 3 (1) that an originating summons should contain either a question on which the plaintiff seeks the court’s determination or direction, or concise statement of the reliefs or remedies claimed. The originating summons contains four reliefs.
In my view, these are concise statements of the reliefs or remedies within the meaning of the second ambit of Order 6 Rules 3(1) of the Rules. I am, therefore, persuaded by the submission of learned counsel for the respondents that the originating summons is in substantial compliance with the Rules of the Court.
The third ground for the objection is that not all persons, adults or minors, entitled to share in the estate of the deceased are made parties.
The non-joinder or mis-joinder of a necessary party is only procedural irregularity, which can be corrected in the course of the proceedings by recourse to the relevant rules of court and does not in any way affect the jurisdiction of the court or competence of the suit.
In view of the foregoing consideration, I resolve the first issue in favour of the respondents.
The second issue pertains to whether the appellant was precluded from raising the preliminary objection in view of the steps he had taken in the proceedings by filing a counter-affidavit and a further affidavit. As I have held earlier on in this judgment, the jurisdiction of the court to hear and determine the suit remains intact notwithstanding the breaches of Order 6 of the Rules. On this issue, the court of appeal reasoned:
“The practice is that where a party has become aware of non-compliance, or where a writ is defective, he should apply for striking out of same before taking any further steps in the proceedings. Otherwise, he will estopped from raising the issue of defect.
I do not think I have any reason to impugn the findings and conclusions of the two courts below which I, therefore, also endorse. This issue is, therefore, also resolved in favour of the respondents.
With respect to the third issue of whether the matter presented to the court were such that could be determined by way of originating summons proceedings, the first principle of law is that jurisdiction in any suit is determined by the nature of the plaintiff’s claim.
In this case, therefore, it is claim of the plaintiffs/respondents that determines whether the matters submitted for determination can appropriately by taken by an originating summons.
It is clear from the originating summons and the documents attached to the affidavit in support thereof that in so far as the plaintiff/respondents are concerned, the marriage between 1st respondent and the deceased was statutory and all that they required the court to determine was the legal incidents of such a marriage.
For the purpose of the proof of her case, the 1st respondent needed only to tender the marriage certificate. It is my view, therefore, that from the perspective of the plaintiffs, an originating summons was appropriate and sufficient to ventilate her grievances. The result is that I also resolve this issue in favour of the respondents.
In conclusion, I hold that the appeal lacks merit and ought to be dismissed. The result is that I affirm the concurrent decisions of the two courts below and the appeal is accordingly dismissed with N50,000.000 costs in favour of the 1st – 4th respondents.
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