KAZTEC ENGINEERING LTD V. PAN AFRICAN CAPITAL PLC AND ANOR

Legalpedia Citation: (2023-06) Legalpedia 66777 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Thu Jun 22, 2023

Suit Number: CA/L/976/2017

CORAM

C.E.NWOSU-IHEME JCA

YARGATA BYENCHIT NIMPAR JCA

MUSLIM SULE HASSAN JCA

PARTIES

KAZTEC ENGINEERING LTD

APPELLANTS

PAN AFRICAN CAPITTAL PLC AND ANOR

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The contention of the Appellant by her affidavit evidence supporting her Objection is basically that the address of service contained on the Writ initiating the action is not the address of the Appellant to the knowledge of the 1st Respondent, and therefore, the purported service of the writ on the secretary of the Appellant upon which the court assumed jurisdiction over the matter and commenced proceedings and even granted a mareva injunction against the Appellant and the 2nd Respondent is irregular and should be set aside, and the suit struck out.

The 1st Respondent as plaintiff/respondent at the trial court filed her counter affidavit and maintained that the address of the Appellant she knew is No. 9B Idejo Street, Victoria Island Lagos as she and the Appellant had several meetings at the address in the events leading to this suit and on her company directory which the 1st Respondent annexed, the Lagos address of the Appellant is No. 9B Idejo Street, Victoria Island, Lagos.

The trial Court upon consideration of the Objection of the Appellant after argument of counsel suo motu dismissed the objection for not complying with Oder 29 Rule 4 of the Federal High Court Civil Procedure Rules, as the objection was filed outside 21 days of the service of the writ on the Appellant. It is on this ruling of the Trial Court that the Appellant appealed to this Court.

HELD

Appeal dismissed

ISSUES

Ø Whether the Trial Court was right to have raised the issue of the applicability of order 29 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 suo motu and applying same without inviting parties to address it on the issue?

Ø Whether the trial court was right to hold that the Appellant’s Notice of Preliminary Objection was incompetent?

Ø Whether the trial court was right to strike out the Appellant’s Notice of Preliminary Objection while holding that the issue of jurisdiction would be taken at the end of the trial?

RATIONES DECIDENDI

SUO MOTU – WHETHER A JUDGE USING A PRINCIPLE OF LAW AMOUNTS TO RAISING ISSUES SUO MOTU

Fair hearing is a cardinal principle of our jurisprudence. All parties must be given an opportunity to be heard in all case. It is correct that the point raised by the trial judge is an issue of law based on the procedure of practice at the Federal High Court. However, the rule was raise by the trial court after careful appraisal of the fact deposed to leading to the application of the Appellant and the writ before the court. More so, this law guide procedure of the court.

It is trite law that where a Judge refers to a piece of legislation or rule of Court which assists him to exercise his discretion one way or the other he cannot be accused of introducing the rule of Court suo motu. SEE BRIG. GEN. O.B. OLORUNKUNLE (RTD) & ANOR v. ALHAJI ABAYOMI SHAKIRUDEEN ADIGUN & ORS (2012) LPELR-8024 (CA) Page 13, paragraphs C-G.

The Apex Court in the case of LT.COL. MRS R.A.F. FINNIH V. J.O.IMADE (1992) LPELR-1277 (SC) Per KARIBI-WHYTE, JSC pages 35-36, paragraphs G-F Said ‘’It is accepted that in our adversary system of the administration of justice, where the Judge is at all times expected to play the role of an unbiased umpire, he cannot raise any issues of fact suo motu, and proceed to decide the matter on such issues without hearing the parties. See Kuti v. Balogun (1978) 1 LRN. 353, Atanda & anor v. Akanmi (1974) 1 All NLR, (Pt.1) 168, Odiase & anor v. Agho & Ors (1972) 1 All NLR. (Pt.1) 170. The judgment must be confined to the issues of facts raised by the parties. See Ochonma v. Unosi (1965) NMLR. 321 I am not aware of the extension of this principle to the application of the law relevant to the determination of the issue before the Court. In my opinion as long as the issues on which the judgment is based are findings of facts arising from the pleadings and evidence before the Court, the fact that the Court has in the determination of the issues applied principles of law not cited by learned counsel, will not affect the decision. This has always been the accepted law.’’ – Per M. S. Hassan, JCA

COURTS – CONDUCT OF COURTS IN ADJUDICATION

It is very important to note that courts of law have moved away from all these preliminary observations by lawyers and are focused on hearing the merit of every complaint. – Per M. S. Hassan, JCA

COURTS – DUTY OF COURTS TO TAKE NOTE OF ALL ENACTMENTS AND SUBSIDIARY LEGISLATION HAVING THE FORCE OF LAW

It must be emphasize that the Court is entitled under Section 122 of the Evidence Act 2011 to take judicial notice of all laws or enactments and subsidiary legislation that is made there under having the force of law without the need for the Court to call on both Counsel to address it before doing so. See FINNIH V. IMADE (Supra) page 24 paragraphs A-B. – Per M. S. Hassan, JCA

SERVICE – IMPORTANCE OF SERVICE IN DETERMINING JURISDICTION

It is very important to note that service is very key to the assumption of jurisdiction by a court over a matter, and that I don’t undermine. – Per M. S. Hassan, JCA

PRELIMINARY OBJECTION – THE EFFECT WHEN PRELIMINARY OBJECTION IS DEFERRED TO THE END OF A TRIAL

I have held that the Preliminary objection was not dismissed, but just deferred to the end of trial, therefore, in real sense, the trial court had not consider the preliminary objection, therefore, this court cannot begin to make any findings and pronouncement when the trial court has not consider the merit of the preliminary objection. – Per M. S. Hassan, JCA

COURTS – THE CONDUCT OF COURTS IN ADJUDICATION

Additionally, it would seem that the Appellant intended to ride on technicalities to tilt the scale of justice in its favour. However, the law has long evolved to doing substantial justice. The provisions of Order 29 Rule 4 and 5 of the Federal High Court Rules, 2019 is to aid the court in doing justice. The court below did not dismiss the Preliminary Objection but deferred its determination to the end of hearing of the substantive suit, which this court must allow to take its course. The Apex court in KOKO v. KOKO & ORS (2023) LPELR-59773 (SC) stated thusly:

“The objection is one which borders on technicality which is dead and buried, never to be resurrected again. The Courts now aim to always do substantial justice and every obstruction to achievement of that aim must be demolished in order that the duty of the Court to the public will be achieved. Substantial justice will not be sacrificed on the altar of technicality when the Appellant clearly had notice of the triable issues raised in the contentious grounds” Per JAURO, J.S.C – Per Y. B. Nimpar, JCA