By Christian N. Oti, Esq

In the Federal High Court, Kwara State Judicial Division, the 1st respondent filed an originating summons, claiming that he won the 2nd respondent’s primaries as the candidate to contest the House of Assembly Election for Essa, Shawo and Igboidun Constituency, but that the 2nd respondent unlawfully substituted him with the appellant as its candidate. He prayed for determination of questions to the effect that; whether by provisions of sections 86 and 87, Electoral Act, 2010, the 2nd respondent had the right to substitute him with the appellant. The 1st respondent prayed for declaratory reliefs to the effect that: he is the rightful candidate who won the primaries and should be recognized as such; orders nullifying appellant’s nomination and order of perpetual injunction restraining the 2nd respondent from recognizing the appellant as its candidate, for the election. The appellant and 2nd respondent filed preliminary objections to the action. The trial court granted the reliefs sought by the 1st respondent. Dissatisfied, the appellant appealed to the Court of Appeal contending that the trial court erred amongst other grounds when it held that the court had jurisdiction to entertain the matter despite the failure to seal the originating process contrary to Order 6, rule 2 (1), Kwara State High Court (Civil Procedure) Rules, 2005.

The Court in answering the said question, Per. Hamma Akawu Barka, J.C.A, while quoting the case of Comrade Adams Aliyu Oshiomole & 3Ors V. Hon. Ishola Balogun Fulani & Ors (unreported) in Appeal No. CA/IL/148/2018, delivered on 12th February, 2019, wherein heavy reliance was placed on the case of Igiriga V. Bassey (2013) LPELR-CA/C/174/2009, Per Ndukwe-AnyanwuJ.C.A, held that:

“A writ issued without the registrar’s seal is incompetent and cannot be cured. Where the word shall is used in any legislation, it means it is mandatory. There is no other meaning that can be ascribed to it. The word shall means that any failure on the part of the registrar to seal the writ of summons invalidates the writ. A writ unlike other processes is an originating court process and it requires the registrar’s seal……”

The court further held that, it is trite, that the duty of the registrar of the court to seal an originating summons (motion) or writ of summons is a fundamental requirement of the law. Thus, any failure by the registrar to seal an originating process is not a mere irregularity; indeed, it is a condition precedent that foist jurisdiction upon the court. As such defect is so crucial that it renders the court devoid of jurisdiction to determine the action…….in other words, the lower court was in grave error in holding that the originating summons in this case is competently before the court.

The converse argument presented by the respondent and which the trial court concurred with was hinged on the case of State Independent Electoral Commission V. National Conscience Party (2008) LPELR-4980 (CA), per Sankey JCA, which is to the effect that:

“ The fact that the summons which was duly filed after due payment of appropriate assessed fees was not signed by the registrar or other officer duly authorized does not constitute an incurable irregularity and does not render the proceedings a nullity as the originating summons could have been rectified quite easily at such initial stage of the proceedings by the registrar or other officer by signing same as required by the rules…..in my view, the fact that the originating summons was not signed by the registrar or other officer authorized in that regard is a technicality that should not be allowed to defeat the cause of justice.”

The Court of Appeal in this instance was however not swayed by the above argument, as it distinguished Order 6, rule 8 of the High Court (Civil Procedure) Rules of Ondo State 1987 applicable to Ekiti State at that time applied in that case from the Kwara State Rules in issue, and ruled that by a careful and critical examination of both Rules that; while that of Kwara State contains mandatory force and a condition precedent with the use of “Shall”, the former conveys discretion without a coercive force. The Court concluded that the defect goes to the root of the suit, thus rendering it incompetent and thus ousts the jurisdiction of the court. In the circumstances, the proper order to make is that of striking out of the defective process. The Court struck out the Originating summon.

One of the canons of interpretation of statutes is the literal rule where the clear words of such statute are given their ordinary meaning. This rule coupled with the legalistic bend, that use of “Shall” in a statutory book would mean compulsion and not discretion, led the court in the above case to its conclusion.

It is necessary to state that the need to glean the intention of the legislature or enacting authourity of a statute by reading through other provisions of the statute contextually cannot be over- emphasized. It is definitely not at all times that the word shall, will be given a mandatory meaning; reading the wordings of the statute in whole might suggest a discretionary perspective. The tendency to compulsion in such a case is slavish and a religious adherence to letters without the spirit thereof.

This writer faults the decision of the court in this case in this respect, because by the clear reading of Order 4, rule 1 of the said Kwara State High Court (Civil Procedure) Rule, 2005, the effect of failure to comply with the rules in beginning or purporting to begin a proceeding is that it does not nullify same automatically; the court has the discretion to order for a regularization of the document. The provision reads thus:

When in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure MAY be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.

The discretionary powers of court ought to be used not just judicially, but judiciously. It is submitted here, that the discretion of the court in this case with this issue was not used judiciously, particularly when the Rules provided power for amendment of such defaulting document (See. Sub rule 2 of Order 4). Surprisingly, the court in its judgment did not make recourse to this provision of the said Rules on the effect of non compliance with the dictates of the Rules.

However, the crux of this argument is that the decision should not be applied in stock, lock and barrel fashion. The same way the court distinguished the case of State Independent Electoral Commission V. National Conscience Party (Supra) before reaching its conclusion is the adjuration of the writer here. The Rules of court bears different consequence for failure to do a certain act, and as such it should be the litmus for holding such default as an irregularity or otherwise. An example may be apposite: The Edo State High Court (Civil Procedure) Rules, 2018 provides in Order 5, Rule 1as follows with respect to non compliance with the rules while instituting an action:

Where in beginning or purporting to begin any proceeding there has by any reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure SHALL NOT nullify the proceedings.

The following rule under this Order makes room for an order of regularization by the Judge in case of any of such default. The end result being that matters are not struck out for reason of mere technicality, particularly when same was as a result of the default of the registrar as was in the case in review. It is urged therefore that the Heads of our courts with the enacting powers to make these Rules should take this into consideration, and even when they want to retain the provision as incompetency, they should create circumstances where the litigants ought not to bear the repercussion for the failure of the court officials in the registry. It is totally unfair and unjust that the sin or omission of the registry or court should be visited on the litigants, especially when the lawyer and the client has done substantially all that is demanded of them like the payment of the appropriate fees, proper naming of parties, attachment of accompanying documents, delivery of the required number of copies, etc; and the other party had taken steps in the proceeding.

The objective and inclination of court being to sustain and dispose off of cases in their merit, the need to ensure our laws do not permit consequences that aid technicality is imperative, save where it would occasion a miscarriage of justice or prejudice any of the parties. Where the default is curable and is harmless, regularization should be permissible at the minimum.