When will a party be held to have waived right to pre-trial conference?

ACCESS BANK v. SUNSHINE OIL & CHEMICAL DEV. CO. LTD

CITATION: (2021) LPELR-53348(CA)

In the Court of Appeal

In the Ibadan Judicial Division

Holden at Ibadan

ON FRIDAY, 19TH MARCH, 2021

Suit No: CA/IB/88/2016

 

Before Their Lordships:

JIMI OLUKAYODE BADA

Justice, Court of Appeal

UGOCHUKWU ANTHONY OGAKWU

Justice, Court of Appeal

FOLASADE AYODEJI OJO

Justice, Court of Appeal

Between

ACCESS BANK PLC

Appellant(s)

 

And

SUNSHINE OIL & CHEMICAL DEVELOPMENT CO. LTD.

– Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

By an application filed on 26th January 2016, the Appellantas the Defendant before the High Court of Oyo State, sought for anorder of the Court setting aside the order made by the Court on 19th January, 2016 fixing the suit for trial and for an order dismissing the suit for failure of the Claimant/Respondent to comply with the mandatory provisions of Order 25 Rule 1(1) of the High Court of Oyo State (Civil Procedure) Rules, 2010.  At the hearing of the application, the Appellant abandoned prayer one of the application and the same was struck out. After considering the second prayer, the Court in its ruling delivered 18th February 2016held that the provisions of Order 25 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010, which the relief sought in the application was premised upon had been complied with, in consequence of which it held that the application failed and it was accordingly struck out.

Dissatisfied, the Appellant appealed to the Court of Appeal.

APPELLANTS’ SUBMISSIONS

The Appellant’s Counselby virtue ofOrder 1 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010, submitted that the said Rules shall apply to all proceedings including all part-heard causes and matters in respect ofsteps to be further taken in such causes and matters. He posited that the word “SHALL” having been employed in the stipulation, made it mandatory vide CORPORATE IDEAL INS. LTD vs. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (PT 1405) 165 at 193(2014) LPELR-22255(SC) Counsel relying on UHEMBE vs. PARKES (2014) 3 NWLR (PT 1395) 475 at 502; (2013) LPELR-20273(CA) stated that rules of Court being subsidiary legislation have the force of law.

Counsel further submitted that trial had not commenced at the time the 2010 Rules of the High Court came into force, as a result of which the Respondent was bound to apply for the issuance of pre-trial conference Notice in Form 17 as stipulated by Order 25 Rule 1 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010.He asserted that non-compliance with the provisions of the said Order 25 Rule 1 (1) attracts the penalty of dismissal of the suit under Order 25 Rule 1 (3) of the Rules and the case of IKEYI vs. CROWN REALTIES PLC (2010) 6 NWLR (PT 1344) 114 at 127.

Citing MTN (NIG) COMM. LTD vs. WI GATAP & INV. LTD (2013) 4 NWLR (PT 1344) 276 at 296(2012) LPELR-7930(CA)Appellant’s counsel asserted that it was a wrong exercise of judicial discretion for the lower court to have allowed the Respondent’s counsel who did not file any written address to make oral submissions on the application and that an Appellate Court is entitled to interfere with such exercise of discretion.

Counsel contended that Rules of Court are meant to be obeyed and that the lower Court disregarded the provisions of the Rules and sacrificed justice on the altar of speed when it adjourned the matter for hearing without holding a pre-trial conference. That the failure of the lower Court to schedule a pre-trial conferencewas prejudicial. Relying on Order 25 Rule 3 and the case of IKEYI vs. CROWN REALTIES PLC (supra) at 127.

Appellant’s counsel submitted that a pre-trial judge is distinct from a trial judge and that the statement of the lower Court that in the High Court of Oyo State, the pre-trial judge is also the trial judge violates the provisions of the Rules of Court. That it is not within the contemplation of the Rules of Court for the same judge to be pre-trial and trial judge or for pre-trial conference to be waived.

RESPONDENT’S SUBMISSIONS

The Respondent’s counselsubmitted that it filed the pre-trial Forms 17 and 18 and that even if the Forms were irregularly filed, the lower Court could not close its eyes to the same since Courts are to do justice and not cling to technicalities. The case of UWAIFO vs. A-G BENDEL STATE (1982) 7 SC 124 at 187; (1982) LPELR-3445(SC)was relied upon. Counsel asserted that the Forms 17 and 18 having been filed, knocked the bottom out of the Appellant’s application for the case to be dismissed for failure to file the said Forms and that the lower Court countenancing the said Forms as filed did not occasion any miscarriage of justice.

He contended that with the several steps taken by the Appellant, it can no longer complain about the failure to file Forms 17 and 18 within time, since it had waived the irregularity by taking steps videAKOCHE vs. OCHENJELE (2013) LPELR-20782 (CA).

In response to the Appellant’s argument that statement of the lower Court that in the High Court of Oyo State; the pre-trial judge is also the trial judge violates the provisions of the Rules of Court, Respondent’s counsel posited that it is an obiter and did not relate to any application before the Court and so did not form part of the ratio decidendi which can be appealed against. Counsel relied on BULET INT’L (NIG) LTD vs. OLANIYI (2017) LPELR-42475 (SC)

He submitted that by Section 122 (2) (m) of the Evidence Act, the lower Court was entitled to take judicial notice of the course of proceedings and practices of the High Court of Oyo State.That it is the same judge that is pre-trial and trial judge in a matter. The Appellant, Respondent’s counsel asserted, had not complained that, that was not the position. He stated that there was nothing in Order 25 Rule 5 of the Rules of the lower Court, relied upon by the Appellant, suggesting that a pre-trial judge cannot also be the trial judge.

Respondent’s counsel maintained that the lower Court properly exercised discretion when it allowed the Respondent’s counsel to make oral submissions, since the failure to file a written address was an irregularity cured by Order 5 Rule 1 (2) of the Rules of the lower Court. The case ofOLAIFA vs. ADENIJI (2017) LPELR–42708 (CA)was called in aid.

Counsel maintained that the failure to conduct the pre-trial conference was a mere irregularity which did not vitiate the proceedings. CitingAUDU vs. GIMBA (2019) LPELR-47403 (CA); UNITY LIFE & FIRE INS. CO. LTD vs. INT’L BANK OF WEST AFRICA LTD (2001) LPELR-3412 (SC).

Respondent’s counsel submitted that rules of Court were handmaids of justice and that the breach of a rule of practice was an irregularity which does not render the proceedings a nullity since Courts have eschewed reliance on technicality. Relying on the case of MFA vs. INONGHA (2014) LPELR-22010 (SC)

RESOLUTION OF THE ISSUES

On the argument whether or not it was wrong for the lower court to have allowed the Respondent’s counsel who did not file any written address to make oral submissions on the application, the Court opined that the said submissions are floating as there is no ground of appeal complaining about the issue. The Court by the position of the law stated that arguments or oral submissions on questions that are not covered by a ground of appeal are incompetent and must be discountenanced, citingTHE NIGERIA ARMY vs. ODEBODE (2018) LPELR (46646) 1 at 34-36,

Relying on IYOHO vs. EFFIONG (2007) 4 SC (PT 111) 90the Court held that the implication of there being no ground of appeal complaining about the issue, had accepted the decision as correct, conclusive and binding and it cannot be heard to argue contrariwise.

The Court agreed with the Respondent’s counsel that it is an obiter dictum as it was made by the lower Court by the way, after it had determined the application before it. Thatit does not form part of the ratio decidendi of the lower Court for refusing the Appellant’s application.

The Court held that the part of the judgment or ruling of a Court which constitutes the decision of the Court and which is appealable is the ratio decidendi and not a statement or an unsolicited remark made in passing by the Court which in legalese is referred to as obiter dictum. Relying onORANEZI vs. PDP (2016) LPELR (41533) 1 at 16. The Court further held that an obiter dictum would be a mere academic exercise which would not impact on whether the decision of the lower Court refusing the Appellant’s application is correct, since the said obiter dictum is extrinsic and not part of the ratio decidendi of the lower Court on the application.

The Court stated that the Pre-trial Conference Notice Forms filed by the Respondent were not filed within the time stipulated by Order 25 Rule 1 (1) of the Rules of the lower Court, but that did not ipso facto make the Forms a nullity and which remained valid until set aside. The Court relying on MANA vs. PDP (2011) LPELR (19754) 1 at 36-37 stated that the lower Court could not have closed its eyes to the existence of the said Forms. The Court held thatit is not every irregularity that can lead to an action being nullified and defenestrated, that the irregularity has to be such that materially affects the merits of the case and occasions a miscarriage of justice. Relying onOrder 5 Rule 1 (2) of the Rules of the lower Court,ODOM vs. PDP (2015) LPELR (24351).

Sequel to this, the Court held that the lower Court was correct to have countenanced the pre-trial conference Notice Forms which were irregularly filed as it was a procedural irregularity that would not have the effect of operating for the purpose of defeating the course of justice. The case of EGBO vs. AGBARA (1999) LPELR (1036) 1 at 22was cited in aid.

The Court further cited FAMFA OIL LTD vs. A-G FEDERATION (2003) LPELR (1239) 1 at 13-14and restated the fact that it is not every procedural irregularity that would willy-willy result in the proceedings being nullified.

The Court opined that the Appellant could not have so contendedthat it suffered any miscarriage of justice as a result of a pre-trial conference not having taken place before the lower Court fixed the matter for hearing because, having been well aware that a pre-trial conference had not taken place, it consented and even suggested dates for the hearing of the matter. That the Appellant, having by its action of consenting for the matter to be fixed for hearing, had waived and abandoned its legal right to the holding of a pre-trial conference. The Court held that the Appellant cannot now contend on appeal that the lower Court was wrong to have assigned dates for hearing of the matter. The caseODU’A INVESTMENT CO. LTD vs. TALABI (1997) LPELR (2232) 1 at 88was referred to on this point.

 

HELD

The appeal was dismissed and the ruling of the lower Court refusing the Appellant’s application was upheld.

Appearances:

Oluwasegun Ayinde, Esq.

For Appellant(s)

Chukwudi Maduka, Esq.

For Respondent(s) 

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