Technicality should not be used to sacrifice justice – SC (Continued from last week)

By the very act of attaching the said rule whether rightly or wrongly, the defendants/appellants should not be made to suffer for the lapses occasioned by the plaintiffs/respondents themselves. The learned trial court judge in my view, should have been more liberal and not relied strictly on time limit principle in his judgment without due […]

By the very act of attaching the said rule whether rightly or wrongly, the defendants/appellants should not be made to suffer for the lapses occasioned by the plaintiffs/respondents themselves. The learned trial court judge in my view, should have been more liberal and not relied strictly on time limit principle in his judgment without due consideration to other factors.
Be that as it may, a further relevant and pertinent question to raise is, in the circumstance of the case as shown on the record, was it just and equitable for the trial court judge to have shut both his eyes against a defence, even if filed out of time, which was at the material time of hearing the suit, physically before the court?
The provision of order 22 Rule 3(1) on undefended list procedure, by nature seeks to ensure that the trial judge must satisfy himself having regard to all the materials placed before him that the defendant has no defence to the uncontested liquidated sum claimed.   This exercise which involves the use of discretion must however be judicious and judicial; it must be objective and not subjective. The section in my view is not watertight and its interpretation should not be draconian in nature.  It rather envisages that consideration should be taken of all the facts placed before the court as disclosed on the affidavits of parties to the action.
The determining bottom line and guiding principle in deciding whether or not to grant the leave to defend is the justice of the case which should overrule and not technicalities which application operates inimically and negates the principle of justice. In other words, while the need for procedure may be relevant in itself for operational guiding purposes, it must not however be seen to replace justice which is the very foundational basis and reason upon which our entire judicial system is founded and anchored. The concept of justice is the backbone and life wire of a peaceful co-existence in any given society and it cannot therefore be under estimated.  A just society is an embodiment of God’s attribute and as the Holy Scriptures put it: – “God’s throne is built on justice and righteousness.” Technicality should not therefore be used to erode or sacrifice justice on the altar of procedure.
The absence of fair hearing can be viewed from many dimensions. In the situation at hand, it was in my view occasioned by the wrongful exercise of judicious and judicial discretion by the learned trial court judge and which same was erroneously adopted and affirmed by the lower court justices.
With the depositions of the facts at paragraphs 13 and 16 supra, was it therefore fair, equitable and just for the trial court judge to have made an order of payment against a party (the defendants/appellants herein) who had placed factual reasons before the court, wherein they denied taking delivery and receipt of the product they are called upon to pay?    The law relating to contractual obligation is only binding when there are offer, acceptance as well as consideration without which no valid contract can exist.   From the facts revealed on paragraphs 13 and 16 supra, same should have put the judge on the guard or alert and suggestive that there was more to the claim which should not have been heard as undefended.   There was, in other words, a need for further explanation by way of oral evidence. The paragraphs indicate that the defendants have a defence to the suit.
The court by shutting its eyes to the applications, was, I hold, very high handed and rigidly applied Order 22 rule 3(1) over and above the concept of justice.
The Constitutional provision of the Federal Republic of Nigeria by section 36 is very explicit and paramount on the concept of fair hearing which must be given to all the contending parties before a court.
I concur with Lord Bowen where he said in his earlier view supra that the courts in deciding rights of parties are “to do justice and not punish them for mistakes they make.” The failure to abide by the rules is clearly a mistake of counsel and which should not be visited on the client as it will only occasion injustice. The failure to have come within time ought to have been treated as mere irregularity.
With all respect therefore, I beg to differ and hold that their Lordships of the Court of Appeal in their judgment greatly erred in confirming the discretion exercised by die trial court. The exercise in other words was neither judicial nor judicious and thus a proper case for the lower court to have interfered therewith and set it aside. The said issue 1 in my view ought to and is resolved in favour of the appellants.
The second issue raised by the appellants relates to question of jurisdiction that is to say:-
“Whether the issue of jurisdiction was not properly raised for the first time before the learned justices of the Court of Appeal.”
The said issue was predicated on ground 2 of the grounds of appeal which questions the propriety of the lower court in refusing to consider and determine the issue of jurisdiction raised by the appellants. The lower court in its judgment found and said as follows:
“The issue of jurisdiction on the ground that the entire transactions took place in Kano was never raised and decided upon by the trial court. It is therefore a fresh issue or new issue. It is the law that a ground of appeal must stem from the ratio decidendi of the judgment.
Clearly issue one not having been raised at all before the trial court is a fresh issue where any issue is being raised for the first time before this court, the pre-requisite to do so, is the leave of this court. In the instant appeal there was no such leave obtained. The issue of jurisdiction cannot be decided in vacuum as in the instant appeal where there is no material whatsoever to rely upon in considering the issue of jurisdiction.’”
The determination of the said issue is very simple and straightforward especially wherein the law is trite and well settled on the issue of jurisdiction which is very fundamental and constitutional. It is not, in this context, procedural and therefore cannot be compromised. It cannot also be conferred by consent of parties or waived.   Where a court acts without jurisdiction it acts in futility. This may explain the reason behind the principle that the issue of jurisdiction could be raised at any stage of a proceeding even for the 1st time in this court. Principle is well entrenched by this court in a long line of decided authorities.
I have reproduced the portion of the judgment by the lower court justices as to why they refused to consider and determine the question of jurisdiction. The two reasons predicating their action were:
 (1) That the jurisdictional issue raised was incompetent as the leave of the Court of Appeal was not sought to raise same as a new issue; and (2) That there was no material before the Court of Appeal to ground the issue of jurisdiction.
With reference made to the decision in the case of Awuse V. Odili as well as the other related sister cases supra, the answer to the 1st line of contention advanced by the lower court is obvious. In other words the leave of Court of Appeal was not desirable or necessary for purpose of raising the ground as a new issue. By the very nature of the issue being jurisdictional the law presupposes that it is competent.  It serves an exception to the general rule that leave must be obtained before new issues are raised. The application of the general rule to the question of jurisdiction will operate a negative set back and thus undermining the fundamental effect of proceedings conducted without jurisdiction which is a nullity. The reasoning and refusal by the lower court is not in accordance with the tenets of the principle laid down.
The next point for consideration relates to the territorial jurisdiction wherein the lower court arrived at a conclusion that there was no material placed before it to ground the issue of jurisdiction. It is not in dispute but agreed by all parties that the goods the subject matter of the plaintiffs/respondents complaint were to be delivered at Bompai, Kano in Kano State. This is evidenced per the documents relevant to the contract between the parties in particular the local purchase order dated 23/03/2001 at page 21 of the record which describes the subject matter of the contract as ‘Nigerian Cotton Lint. Transport charges included payment after delivery.’ One of the delivery notes contained in the record confirms the receipt by the store keeper. Bompai Kano.
In the instant case, the defendants/appellants’ residence is clearly shown to be in Kano which is also the place at which the contract was to be performed. From the writ of summons it further reveals that all the defendants were to be served at Maimalari Road, Bompai Industrial Estate Kano. The affidavits of service are all evident at pages 11, 12, 13, 14, 15 and 16 of the record of appeal wherein all the defendants were at Maimalari Road,  Bompai Industrial Estate, Kano where they reside.
From the foregoing deductions, I hold a firm view that the lower court could not be correct in concluding that there was no material placed before it to ground the issue of jurisdiction. The court in that behalf, I hold, was in great error. This is because sufficient and overwhelming materials availed before it that the territorial jurisdiction is vested in the High Court of Kano State and not the Zamfara State High Court. The said issue 2 is also resolved in favour of the appellants.
Issues 3 and 4 are very dependent upon issues 1 and 2 respectively and they needed no further examination therefore. In other words, while issue 3 is well integrated into issue 1, issue 4 which seeks to emphasize the view held by the lower court on the jurisdictional competence is also well encompassed within issue 2.
On the totality and with all the issues having been resolved in favour of the appellants, the appeal has merit and is hereby allowed.   In the result, the judgment of the lower court delivered on the 16th day of December, 2004 in Appeal No. CA/K/214/2002 and affirming the decision of the Zamfara State trial High Court in suit No. ZMS/GS/8/2002 is hereby set aside.   In its place an order is made that the suit be transferred to the general cause list to be heard on the merit and before a Kano State High Court.  A further order is made that the respondents be condemned to costs of N100, 000.00k in favour of the appellants.