Citation: (2022) 3 NWLR PT. 1816 AT 131.
PARTIES IN FULL:
H. R. M. OBA R.A. ADEJUGBE
V.
1. CHIEF BAMIDELE ADULOJU
[The Edemo of Ado-Ekiti]
2. CHIEF A. KOLAWOLE.
[For himself and on behalf of Balsaya Family of Ado-Ekiti]

Courtesy: Moruff O. Balogun Esq.

Summary of facts:
The 1st respondent commenced an action on 22nd November 2011 for himself and on behalf of the Edemo family of Idemo Quarters, Ado-Ekiti against the appellant and against the 2nd respondent for himself and on behalf of Balsaya family of Ado-Ekiti.

The 1st respondent also filed a motion on notice for an interlocutory injunction restraining the appellant and the 2nd respondent from deposing him as the Edemo of Ado-Ekiti.

In response, the 2nd respondent filed a notice of preliminary objection to the competence of the suit and the jurisdiction of the court to entertain it on the ground that the suit disclosed no reasonable cause of action against him and that it was frivolous, vexatious and embarrassing to him.

Subsequently, the appellant filed a counter affidavit to the 1st respondent’s application for injunction. The appellant and the 2nd respondent also filed a joint statement of defence accompanied by the written witness statement on oath of the 2nd respondent.

While the suit was pending and the appellant had been served with the 1st respondent’s motion for interlocutory injunction, the appellant deposed the 1st respondent as the Edemo of Ado-Ekiti, and wrote a letter dated 26th March 2012 calling on the people of Idemo to start the process of selecting a new Edemo of Ado-Ekiti.

So the 1st respondent applied to the trial Court by a motion on notice for an order setting aside his deposition and for an order that the appellant should not be heard until he complied with the order setting aside the deposition of the 1st respondent.

After the 1st respondent had filed his reply to the statement of defence of the appellant and the 2nd respondent, the appellant applied for the orders of the trial Court striking out the 1st respondent’s statement of claim, his statement on oath on ground that it did not contain a verbatim statement of the oath in the schedule with the Oaths Act, and dismissing the entire suit on ground that it did not disclose a reasonable cause of action.

The 1st respondent, on his part, filed an application to amend his statement of claim and all processes attached thereto.
After hearing arguments on which of the pending applications should be given priority, the trial court ruled that it would first hear and determine the appellant’s application to strike out the 1st respondent’s statement of claim and statement of oath and dismiss
the entire suit. Accordingly, the trial court heard that application. In its ruling, it granted the application and dismissed the case of the 1st respondent.

Dissatisfied with that ruling, the 1st respondent appealed to the Court of Appeal, which made several findings and holdings. On the basis of those findings and holdings, the Court of Appeal allowed the appeal, set aside the ruling of the trial court, and restored the 1st respondent’s suit to the cause list of the trial court for trial on the merits by another Judge of the trial court.

The appellant appealed to the Supreme Court on two grounds appeal. The first complained that the Court of Appeal erred in law in holding that the 1st respondent’s action disclosed reasonable cause of action. The appellant also argued that the 1st respondent’s written statement on oath breached section 115 of the Evidence Act on the ground that it included prayers for the reliefs against the appellant and 2nd respondent, and was therefore incompetent.

Held: Unanimously dismissing the appeal

The following issues were raised and determined by the Supreme Court:

On whether objection based on want of cause of action can be raised after joinder of issues-
Once issues have been joined, an objection based on want of cause of action is no longer available. In this case, the appellant and the 2nd respondent had filed a statement of defence and had joined issues with the 1st respondent on the facts in the statement of claim putting them up for trial. Further, the 1st respondent had filed his reply to the said statement of defence.

At that stage, the contention that the 1st respondent’s case disclosed no reasonable cause of action should have been determined after conclusion of evidence and final addresses, along with the merit of the case in the judgment of the trial court.

On priority of hearing between application for dismissal for non-disclosure of reasonable cause of action and application for amendment of statement of claim-
Where there are two motions before a court requiring to be heard, the interest of justice demands that the motion, the determination of which would save the main action, should be heard first. Put differently, the priority of hearing competing applications before a court is that where there are two motions and one seeks to terminate the action on account of non-compliance and the other seeks to cure the defect, it is the duty of the court to hear the latter first, provided it is a competent application.

This principle is premised on the concept that courts are now inclined to do substantial justice in place of technical Justice. In this case, pleadings had closed and the 1st respondent had an application for interlocutory injunction as well as an application for amendment pending before the trial court. In the circumstance, the trial court ought to have given priority to the hearing of the 1st respondent’s application for amendment
instead of the appellant’s application for striking out the statement of claim and the respondent’s statement on oath, and for dismissal of the suit for lack of reasonable cause of action.
Therefore, the Court of Appeal rightly held that the trial court erred when it dismissed the 1st respondent’s claim without hearing the applications pending before it that would have ensured that the interest of justice prevailed.

On whether defect in form of oath administered on witness or failure to administer oath on witness before evidence fatal-
Generally, the law does not allow the form of an oath or affirmation to vitiate the oath or statement made under the oath or allow the absence of oath or affirmation to prevent the admissibility of evidence that should be on oath.

So where a statement, such as the 1st respondent’s statement in this case, was made on oath and sworn before the Commissioner for Oaths, the absence of the declaration prescribed in the Oaths Act that the deponent made the statement conscientiously, believing same to be true and correct or like words in the written statement on oath becomes a mere irregularity or defect as to form that has no effect on the validity of the oath and the statement on oath.

On whether defect in form of oath administered on witness or failure to administer oath on witness before evidence fatal –
Section 4(2) of the Oaths Act states that no irregularity in the form in which an oath or
affirmation is administered or taken shall:
Invalidate the performance of official duties; or
Invalidate proceedings in any court; or
Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.

While by section 4(3) of the Act, the failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth. In this case, even if the 1st respondent’s written statement was not made on oath or sworn at all, it would still be valid as the witness written statement intended to be given or given as evidence on oath in the proceedings and nothing precludes the witness from adopting it as his testimony when testifying on oath in examination in chief in open court.

On duty on Court to give primacy to expeditious delivery of justice over determination of baseless preliminary or interlocutory objections-

It is worthy of note that the trial of this suit that commenced on 22-11-2011 is yet to start due to the undue prominence and attention given by the trial court to an objection that was obviously baseless, cosmetic and trivial.

The trial of the merits of a case that was filed nine years ago cannot be commenced because of the said objection. The courts should be untiring in their efforts to stop the practice that creates this kind of undesirable situation that erodes public confidence in the courts and bring administration of justice to disrepute. Only one thing should occupy the attention of a court at all times in the hearing and determination of cases before it. That thing is the expeditious delivery of the justice of the case to all parties.

The court should not preoccupy itself with the trial of preliminary or interlocutory
delivery of the justice of the case to all parties. The court should not preoccupy itself
with the trial of preliminary or interlocutory objections on procedural issues and abandon the pursuit of the merit of the dispute that brought the parties to court.

Experience has shown that such judicial attitude is the main cause of the endemic protracted delays in the proceedings of court and huge backlog of cases waiting to be heard and prevents the hearing of the cases within reasonable time.

There has been some legislative and judicial response to this challenge. One of the responses is that where a procedural defect does not nullify the process and has not prejudiced the adverse party or in any respect prejudiced the justice of the case, it should be condoned and not be vitiated.

Another response is that even if such procedural defect is such as may nullify the proceedings, the best practice is to determine it together with the merit of the
dispute, so that should the decision of the trial court upholding the objection is overruled and set aside on appeal, the decision on the merit of the dispute would be available for appellate review and avoid a separate and piece meal trial of issues in a case and the up and down movement on the judicial pyramid and huge waste of time and expenses with untold hardship.

It is curious that the trial court on 30-1-2014 decided to hear the said objection, over
2 years after the completion of pleadings and when the matter was ripe for hearing by evidence. Considering the nature of the case and the number of witnesses to testify at
the trial judging from the number of witness statements, if the trial court had focused on the expeditious trial of the merit of the case, It would have concluded same before 30-1-2014 when it decided to hear the motion seeking to strike out the suit.

The approach of the trial court was not furtherance of justice in the case and portrays
the judex as not being alive to his judicial responsibility.

On duty on court not to be indifferent to implications of procedure its proceedings are conducted-
A court should not be indifferent to the implications of any approach it adopts in the judicial conduct of proceedings because such indifference amount to judicial irresponsibility.

On duty on court to protect its authority and processes from contempt and to give priority to issue of contempt where raised –
Every court has the inherent duty to protect its authority and its processes from being disregarded and frustrated by any person particularly parties in cases before it. When such an affront and contempt arises, it must be promptly addressed before any further step is taken in the proceedings.

If a Court allows a party before it or any person to affront its authority and contempt its process with impunity, it loses its capacity of effective and efficient adjudication and cannot deliver justice in the case before it. Whatever it does, without addressing the contempt for its process and authority would amount to an inflated pretention and a charade.

In this case, when the appellant chose to ridicule and tried to defeat the due process of the law and the court by his letter seeking to depose the 1st respondent during the pendency of the suit and the 1st respondent’s application for injunction seeking to stop it, the trial court should have addressed it before doing anything else. By virtue of its inherent duty to protest its authority and process, it can do so suo motu. The trial court failed to do so, even when the 1st respondent invoked its power to do so by the motion on notice filed to set aside the deposition and to refuse to hear the appellant in the case until he stopped the contempt and affront by complying with the order setting aside the purported deposition of the 1st respondent. By failing to hear that motion and determine the issue of the appellant’s contempt and affront of its authority, the trial court abdicated its sacred duty as a court to protect its processes from being defeated by such action.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]