AUDU & ORS v. DANGANA (2022) LPELR-57341(CA)
Issue
ACTION โ WRIT OF SUMMONS โ
Principle
โThe Appellants (plaintiffs) at the lower Court, at the time of commencing and filing his writ of summons did not accompany the writ of summons with a certificate of pre-action counselling signed by the plaintiffโs counsel. In other words, the Appellants did not fulfill or satisfy the requirements of Order 3 Rule 2(1) of the Niger State High Court (Civil Procedure) Rules 2012 in that the certificate of pre-action counselling signed by the plaintiffโs counsel did not accompany the writ of summons. In this regard, the learned trial judge at pages 55-58 of the supplementary Record of Appeal held as follows:- โโฆI will however, for obvious reasons delve into issues number 4 which was raised by the learned defence counsel in his address. That is the competence or incompetence of the plaintiffโs suit in view of the non-compliance with the express provision of Order 3 Rule 2(1) and (2) of the Niger State High Court (Civil Procedure) Rules. Whilst being mindful of the current position of the Courts to do substantial justice and not to sacrifice substantial justice on the altar of technicalities, I do note that by virtue of Order 3 Rule (2) of the rules of this Court, where a party fails to comply with Rule 2 (1) the originating process shall not be accepted for filing. The use of the word shall is a command; it makes compliance compulsory and mandatory and where an originating process fails to comply, it is bad ab initio. I am mindful also, that the rules had given a widow with regards to failure to observe certain acts which could be treated as an irregularity, by virtue of Order 5 Rules 1 (2) by Order 5 Rules 2 an application may be made to set aside such proceeding for irregularity, but, such an application must be made within a reasonable times before the party applying takes any fresh steps after becoming aware of the irregularity. Unfortunately, this issue is raised in the final written address. I have therefore considered whether the irregularity is such which can be waived but I am unable to do so in view of the provision of Order 5 Rule 1(1) which provides:- โWhether in the beginning or purporting to begin any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings. No doubt, the failure here is in the commencement of the proceedings and will be fatal to the case of the plaintiffs in OCHEGBUOU VS AGBALA (2014) LPELR-22650 CA, it was held: If Rule of Court provide for a particular format for the commencement of action or taking out of any processes such as Brief of Argument, a party is bound to comply with the format. Where it fails to do so, a Court of law is entitled to hold that action or that process incompetent, and it should not be considered. See MODULOLU VS NKEMDEELIM (1962) NWLR 595, D. E. N. R LTD VS TRANS INTโL BANK LTD (2008) 18 NWLR (pt. 1119) 388. I have alluded to this discretionary power of the Courts so as to make the point that learned counsel who represent clients in Courts of law must observe the law and Rule to avoid damaging the cases of their clients. Again in EDE VS CBN & ORS (2014) LPELR-24121 CA it was held:- Where there is a clear provision in the rules of Court on the manner a certain step should be taken, it becomes a condition precedent to hearing of the application and such must be followed and obeyed as it does not give room for the excessive of discretion by the Court no choice of method by the parties substantial justice can only be done to a suit properly initiated by due process not otherwise. To argue that it is a mere irregularity is untenable. The breach is fatal and cannot be waived; see the case of KIDA VS OGUNMOLA (2006) AFWLR (pt. 327) 402 at 412 where this Court held as follows: The validity of the originating processes in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit.โ I agree with the Respondents that failure to commence proceedings as anticipated by the Rules of Court strikes at the judgment of the Court to determine the application. Jurisdiction is the life wire of a Court or Tribunal and it is fundamental as without jurisdiction a trial would be a nullity and an unnecessary waste of time. It is settled that jurisdiction can be raised at any time even on appeal, orally or formally or even by the Court itself suo motuโฆโ For the aforementioned reason and authority cited, I find the plaintiffsโ suit incompetent and I so hold.โ The position and finding of the learned trial Judge on the non-compliance with the requirements of Order 3 Rule 2(1) and (2), Rules of the High Court of Niger State, 2012 is correct, perfect and the position of our procedural law and such finding cannot be disturbed by this Court. This is because, the requirement of filing a certificate of pre-action counselling by the plaintiffs or their counsel is a condition precedent and that is why in both Rules (1) and (2) of Order 3, the use of the word โshallโ makes it mandatory for the plaintiffs to file a certificate of pre-action counseling. In the case of NONYE IWUNZE V. FRN, (2014) LPELR-22254, the Supreme Court in considering Order 17 Rule 4 (1) of the Court of Appeal Rules, 2011 held as follows:- โBy the above provision which for me is very clear and unambiguous, any aggrieved party to which this Rule applies, who desires to appeal โshallโ personally sign the Notice of appeal. The use of the word โshallโ in the Rule denotes mandatoriness and does not make room for any exercise of discretion. It is a word of command. See ONOCHIE V ODOGWU, (2006) 6 NWLR (pt 975)65, AMOKEODO V IGP & 2 ORS, (1999) 5 SCNJ 71 AT 81.โ Thus, in the instant case, the competence of the writ of summons initiating the suit at the lower Court has been called to question and question of competence, which is a threshold issue of jurisdiction, is fundamental to adjudication because it goes to the foundation and competence of any cause, matter or action before the Court. It is indeed the epicentre of the entire litigation process and thus without it there can be no validity in any proceedings or resultant judgment of the Court. See the cases of MADUKOLU V NKEMDILIM, (supra), D.E.N.R V TRANS INTโL BANK LTD (supra), EDE V CBN & ORS (supra) etc all cited by the learned trial judge are in all fours with the objection raised at the lower Court. See also ELUGBE V OMOKHAFE (2004) 18 NWLR (pt 905)319 at 334, ANSA V RTPCN (2008)7 NWLR (Pt 1086)421 at 448, NICON INSURANCE PLC V ANAGBA VENTURES LTD, (2018) LPELR-46672(CA).โ Per DANLAMI ZAMA SENCHI, JCA (Pp 27 โ 33 Paras E โ D)โ