When Superior Court Follows The Decision of Inferior Court – By Abdulrasheed Ibrahim

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Abdulrasheed Ibrahim
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When Superior Court Follows The Decision of Inferior Court – By Abdulrasheed Ibrahim

In the judicial hierarchy of courts in Nigeria, all other courts are inferior to the Supreme Court and its decisions are binding on them. In some of the previous articles on this platform, we have cited several case authorities wherein the Supreme Court has affirmed its superiority over all courts in Nigeria. There are cases where the Supreme Court has vehemently condemned the attitude of judicial officers who deliberately failed to follow its decisions particularly when those decisions had been brought to their attentions. In the class of courts consider to be the superior courts of record in the Constitution of the Federal Republic of Nigeria, the courts like the Federal High Court, National Industrial Court and the various High Courts of States are inferior to the Court of Appeal and are bound by its decisions. The decisions of courts of concurrent jurisdiction are only persuasive to one another but not binding.

Abdulrasheed Ibrahim

The issue for discussion here is that, considering the fact that the inferior courts are bound to follow the decisions of the superior court, is there any situation where a superior court will follow the decision of an inferior court to arrive at its own decision? The question may appear very strange but looking through some case authorities, it has actually happened before and it may continue to happen whenever the situation arises. The case law that comes to mind is the Court of Appeal case reported as UNEGBU Vs UNEGBU (2004) 11 NWLR (Pt. 884) at page 332. This particular case has sent many divorce petitions that were not properly commenced or placed before the court to the gallows because of what many lawyers may see as “a mere irregularity” that need not affect the validity of the suit. What actually transpired in this suit between an husband and his wife who wanted to take his exit from their marriage? Mr. Emmanual Chike Unegbu engaged a lawyer, Nnamdi Ibegbu, SAN to file a petition on his behalf seeking to divorce his wife; Mrs. Justina Chineze Unegbu at the Anambra State High Court, Onitsha Division.Upon being served with the petition, the wife as respondent also engaged another SAN in person of Dr. Ejike Ume who filed a preliminary objection challenging the competency of the petition for the failure to comply with Order V Rule 10 (1) of the Matrimonial Cause Rules 1983 which provides as follows:

“10 (1) A petitioner shall by an Affidavit written on his petition and sworn to before his Petition is filed –
(a) Verify the facts stated in his petition of which he has personal knowledge; and
(b) Depose as to his belief in the truth of every other fact stated in the petition.”

The main contention of the parties before the trial court was according to the Respondent’s Counsel the verifying affidavit ought to form part of the petition to verify the facts contained therein and not to be in a separate document purporting to verify the facts contained in the petition but the Petitioner’s counsel maintained that the Rules had been substantially complied with .The learned trial judge in his ruling dismissed the preliminary objection saying that the irregularity had in no any effect the validity of the petition,. The Respondent was aggrieved by the ruling and proceeded to the Court of Appeal, Enugu Division; Corum Mahmud Mohammed ,JCA (as he then was ) ; Ignatius Chukwudi Pats- Acholonu ,JCA (as he then was ) and Sule Aremu Olagunju, JCA (as he then was ) before whom the appeal was argued by the two learned Senior Advocates for the parties. After hearing the arguments canvassed by the learned Silks in support of their respective briefs of arguments where the court was asked to determine the issue: “Did the respondent comply with Order V rule 10 (1) by commencing the affidavit verifying the facts of the divorce petition on a separate document without writing same on the petition?”, the case was adjourned for judgment.

In the leading judgment delivered by Mohammed, JCA (as he then was) the learned jurist who was later to become CJN expressed his difficulty as follows:

“There is no doubt that this relates to the use or requirement of a verifying affidavit in a petition for divorce.As these rules came into force about 13 years after the coming into force of the Matrimonial Causes Act 1970 in 1983, I have not been able to find any decision of the Supreme Court or the Court of Appeal on the interpretation and application of Order V rule 10 (1) of the Matrimonial Causes Rules, 1983. I therefore decided to look back at the cases that were decided under the English Matrimonial Causes Rules 1957 which continued to be in force in Nigeria by virtue of the provisions of the various High Courts law applicable in the Eastern States part of Nigeria is section 16 by which the jurisdiction vested in the High court as regards practice and procedure was to be exercised in the manner provided by the High Court law and any other written law ,and in default thereof,in substantial conformity with the law and practice obtaining in England for the High Court of Justice as at 30th September,1960.”

Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 bears much similarity with Rule 6 (1) and (3) of the Matrimonial Causes Rules of England 1957 as it also provides thus:
“6 (1) Every petition shall be supported by an affidavit by the petitioner verifying the facts of which he has personal knowledge and deposing as to his belief in the truth of the other facts
3 The affidavit in support of the petition shall be contained in the same document as the petition and shall follow at the foot or the end thereof.”

There were earlier High Court cases similar to the one at hand in which the purport of this provision had been interpretered, Mohammed, JCA (as he then was) in his leading judgement continued:

“Interpreting the above rule sitting on the Bench of Umuahia High Court in the case of Oyedu Vs. Oyedu (1972) 2 ECSLR 730, where similar preliminary objection was raised on a divorce petition as in the present case , Aniagolu J. (as he then was ) had this to say at page 731of the report-‘The requirement of subsection 3 that the affidavit shall be contained in the same document as the petition and shall follow at the foot or end thereof is mandatory .The operative words are : ‘shall be contained in the same document and shall follow at the foot or the end thereof’. Idigbe J. , in Grace C. Omodon v. J.C. Omodon & Anor. (1966) NMLR 288 considered sub-section 3 to be imperative.There is no doubt that the intendment of section 6 (3) of the Matrimonial Causes Rules is that the affidavit must follow immediately at the foot of the petition and that both the petition and the said affidavit must be contained in the same document in the sense that the document must be continuous document to the petition .There is equally no doubt that the affidavit in support of the petition in the instant case is contained in a separate ,clearly separately headed,with the suit number inserted ,the fact of its having been sworn to on the same day as the date of the filing of the petition notwithstanding .This affidavit is neither contained in the same document as the petition ,nor did it follow at the end of the petition nor at its foot.If the Matrimonial Causes Rules, 1957 were apply , the petition would certainly be defective.’”

Aniagolu J. (as he then was ) who presided at the Umuahia High Court in the case of Oyedu Vs. Oyedu (supra) also referred to the case of Omodon Vs. Omodon (supra) presided over by Idigbe J. Both judges were at last years elevated to the Supreme Court bench where the former retired as a Justice of that court while the latter died while actively serving on the apex court bench. The wisdom in this is that where a judge of superior court is faced with dire need of case authorities in the course of discharging his judicial duties, resort can be had to the inferior court’s case authorities to seek for guidance. Also the technical nature of instituting divorce petition requires counsel to exercise a lot of restraint and care when such proceeding is to be embarked upon as this is one of the situations where the plea such as the sin or mistake of counsel should not be visited on his client would be meaningless .These points were aptly captured by the learned jurist when he said :

“I have quoted these High Court decisions on the application of the relevant rules in the Matrimonial Causes Rules only to provide guidance on my task in the present case in resolving the only issue arising for determination in this appeal…The learned Senior Counsel to the petitioner now respondent should have seen this requirement without much difficulty. Rules of court, particularly in divorce proceedings which is highly technical in nature,are meant to be obeyed and I think it behooves counsel to show some degree of care when undertaking the conduct of proceedings on behalf of clients.Learned counsel certainly lose nothing by making some endeavour to look at and consider the effect of some of the relevant rules of the court before embarking on proceedings ”

The Court of Appeal in a unanimous decision by the three learned (3) jurists including Muhammed,Pat-Acholonu and Olagunju, JJCA agreed that the Respondent as the Petitioner at the lower court did not comply with Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 in the filing of the divorce petition and as such the trial court ought to have upheld the the preliminary objection. In the words of Mohammed (JCA) in his leading judgment : “ Finally ,I am of the firm view that the language of Order V rule 10 (1) of the Matrimonial Causes Rules, 1983 is mandatory and has not been complied in the present case by the respondent in filing his petition at the court below .It is therefore true as rightly observed by the Senior learned counsel for the respondent to the petition now appellant ,that a petition such as is envisaged by the provisions of the Matrimonial Causes Rules 1983 had not been properly placed before the lower court which ought to have upheld the preliminary objection by striking out the petition. Accordingly this appeal succeeds and it is hereby allowed.”

This brings us to the issue of technical and substantial justice.Although there are chains of authorities where the Supreme Court has enjoined courts to do substantial justice rather than technical justice.Sometime a judgment seems technical as the one just discussed above but when you look critical, you will discover that it was the result of refusal to do what was required by the law. The position of law is that the rules of court are meant to be obeyed and complied with. No matter how meritorious a case of a party may be, if the rules of court are not complied with the case may end up being struck out or dismissed. For instance a party that is aggrieved by an interlocutory decision of an High court of justice has only 14 day to appeal against such decision to the Court of Appeal while he has 90 days if the decision is final.The law or rules of court even allows the party to file out of time provided the leave of court is sought and granted for the filing of same.

The same principle is applicable to the filing of the brief of arguments by the parties after the appeal has been entered for instance at the Court of Appeal where the Appellant is allowed to file his brief of argument within 45 days after the entry of the appeal. Where the situation arises for the brief to be filed out of time by the parties the rules provided for the leave of the court to be sought. The effect of the refusal on the part of the Appellant to comply with this is that the respondent can apply to the Court of Appeal to dismiss the appeal for want of prosecution or the Court of Appeal itself suo moto can have the appeal dismissed for want of prosecution in accordance with Order 19 Rule 10(1) & (2) of the Court of Appeal Rules, 2016. Where a situation such as this arises, can anyone accuse the court of embarking on technicality when the parties involved have refused to comply with the mandatory provisions of the rules of court?

In the commencement of a probate action in the High Court of Lagos State, it is the requirement under Order 8 Rule 5 of its Civil Procedure Rules 2019 that the originating process thereof must be accompanied by an affidavit sworn to by a claimant or one of the several claimants verifying the content of the process.Many probate matters were struck out when the 2012 rules of that court was in force with similar provisions (Order 6 rule 5 ) ,the moment a probate action was filed and the Probate Registrar was joined as a party, the first thing the lawyers representing him would be looking for was to see whether the process was accompanied by a verifying affidavit or not and if it was not they would file a preliminary objection to have the suit been thrown overboard.This is more the reason why lawyers when preparing their processes for filing in court must exercise serious caution and care so as not to be ambushed by the lawyers on the other side when the real legal battle commences.

REMARKABLE PRONOUNCEMENT

ON EXERCISE OF DISCRETION

The exercise of discretion is a matter exclusively for the court to do after weighing all the circumstances of the case in the interest of justice and the balancing of the interest of the parties involved, including the balance of convenience and disadvantages, which might be suffered by any of the parties concerned. It is after the court shall have given consideration to such matters that it can arrive at what is undeniably a difficult decision which must appear reasonable in all circumstances of a particular case. A liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law, and exercise of such discretion is renewable only for an abuse thereof.

Per MUHAMMED, JSC in Echaka Cattle Ranch Ltd Vs. NACB Ltd (1998) 3 SC at Pg. 8 Lines 3-14

THE SETTLED PRINCIPLE OF LAW

On when objection to irregularity can be raised

The law is that the appropriate time at which a party to a proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises if the party sleeps on that right and allows the proceeding to continue on the irregularity, then the party cannot be heard to complain, at the concluding stage of the proceedings on an appeal thereafter, that there was a procedural irregularity which vitiated the proceedings. The only exception to this general rule is that the party would be allowed to complain on appeal if he can show that he had suffered a miscarriage of justice by reason of procedural irregularity.

See SAUDE Vs. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387

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