The law is trite, that where an action as in this case was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure can not later be heard complaining and praying that the action be set aside on ground of irregularity which he himself had earlier acquiesced. See Saude V. Abdullahi (supra). However, in the present case, it is clear that it was the objection or complaint by the respondent, that triggered this appeal filed before the lower Court by the respondent.
ALFA V. AIDOKO ATTAI &
Indeed, there are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ Of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for Prerogative Orders and (ii) Originating Motions under the Fundamental Rights (Enforcement Procedure) Rules, 1999 (made pursuant to the authorities that inhere in the Chief Justice of Nigeria).
Lastly, Petitions as modes of originating actions are employed in commencing suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process, G. F. Harwood, Odgers Principles of Pleadings and Practice in Civil Actions (Twentieth Ed) (New Delhi India; Universal Law Publishing Co. Pvt. Ltd, (2010) 352; F. Nwadiala, Civil Procedure in Nigeria (Lagos: University of Lagos Press, 2000) 211; Arjay Ltd and Ors v A. M. S. Ltd (2003) LPELR -555 (SC); Inakoju and Ors v. Adeleke and Ors (2007) LPELR-1510 (SC); Pam and Anor v. Mohammed and Anor (2008) LPELR -2895 (SC); National Bank of Nigeria Ltd and Anor v Alakija and Anor (1978) LPELR -1949 (SC); Ezeigwe v Nwawulu and Ors (2010) LPELR 1201 (SC); Famfa Oil Ltd v AG, Fed and Anor (2003) LPELR-1239 (SC).
ALFA V. AIDOKO ATTAI &
As learned senior counsel must be aware; with the exception of some specific statutes, for example, the Marriage Act and Matrimonial Causes Act; the Companies and Allied Matters Act (CAMA, for short) and the Electoral Act, which stipulate modes of commencement of certain special proceedings; the Rules of Courts generally dictate the mode of the originating suits thereat.
ALFA V. AIDOKO ATTAI &
The Courts have consistency held that the record of proceedings in a criminal trial is not admissible in civil matters. In Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353-354 the Apex Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding. In the instant case, the admission of the record of criminal case in which the 1st respondent was convicted was wrong notwithstanding that there was no objection to is admission in evidence.
Also, in the case of ALI V. UGWU (2012) ALL FWLR (Pt 619) 1078 @ 1111, the Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding."
It is a settled principle of law that in a civil case, the burden of proof lies on the person who desires the Court to give judgment as to any legal right or liability which depends on facts which he asserts to prove that those facts exist. It is also settled that the burden of proof in a particular proceeding lies on the person who would fail if no further evidence is given on either side. See Sections 131 and 132 of the Evidence Act, 2011. The burden of first proving the existence or non-existence of a particular fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
Most importantly, the affidavit must be sworn to and signed or marked by the deponent before the authorized person or officer. By these requirements of the law, an unsworn and unsigned affidavit is worthless. In the absence of the swearing by the deponent, therefore, the declaration will not be as worthy as the paper on which it is made. The person before whom the oath is subscribed must so endorse on the affidavit by indicating, in addition to the official stamp, his name. See Maraya Plastic Industries Ltd v. Inland Bank of Nigeria Plc (2002) FWLR (Pt.120) 1732 at 1737, Oparugo V. Oparugo (2008) 5 NWLR (Pt.1087) 574, Amigo v. Nwoke (2010) 1 NWLR (Pt.1176) 600 and Onujabe v. Idris (2012) (Pt.1284) 285.
The cause of action discloses the facts from which it could be ascertained whether there is an infringement or violation of the civil rights or obligations of the Claimant which, if established before the Court, entitles him to the relief or remedy sought: FAWEHINMI v. AKILU & ANOR. (1987) 12 SC 136; (1987) 4 NWLR (pt. 67) 797 (SC); OLORIODE v. OYEBI (1984) 1 SCNLR 390; THOMAS v. OLUFOSOYE (1986) 1 NWLR (pt. 18) 669. PER EJEMBI EKO, J.S.C.
Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 which is in pari materia with the 2004 Rules provides: “The Judge may, on application, at a case management conference or at any other stage of the proceedings where admissions of fact have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.” PER BAYERO, J.C.A.
The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357. Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim.
The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence.
In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.
PER ABIRU, J.C.A.
Where a party consents to an irregular procedure adopted by his adversary in the lower Court by participating in the proceedings without any complaint, he cannot be heard to complain on appeal that the procedure was irregular – Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibade Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti LGA (2021) 13 NWLR (Pt 1794) 498. The Appellant cannot be heard on this complaint and it is unfounded in this appeal and cannot affect the judgment of the lower Court. PER ABIRU, J.C.A.
It is trite law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs.
FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20. PER OGAKWU, J.C.A.
It is rudimentary law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the hornbook principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary. See OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs.
FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20. PER OGAKWU, J.C.A.