Technicality; A Ploy To Stultify The Course Of Justice By Y. A, Usman Esq

Legal procedures change with the change of time in order to give
an effect to the will of the law, and make the justice prevail.
This makes the courts of law uphold the fact that, the heydays of
technicality are over and a way is paved for the arrival of
substantial justice. It is a known fact that, legal practitioners
are bound to make mistakes while drafting, filing or serving the
court processes which ordinarily attract sanctions or penalties.
But in trying to give a life to substantial justice to live, some
mistakes or errors maybe overlooked in order not to allow the
strict compliance to suffocate the process of justice delivery. In
ABUBAKAR vs.
YAR’ADUA (2008)
4 NWLR (pt
1078) Tobi JSC, of blessed memory observed that :
” blunders must
take place
in the
litigation
process and
because
blunders are
inevitable it
is not
fair, in
appropriate
cases, to
make a
party in
the blunder
to incur
the wrath
of the
law at
the expense
of hearing
the merits
of the
case. ”

Technicality was defined in the case of
OSAREREN vs.
FEDERAL REPUBLIC
OF NIGERIA
(2018)10 NWLR
(pt. 1627)[email protected]^[1], in the
following words: “Technicality in a
matter could arise if
a party is relying on
abstract or inordinate legalism
to becloud or drown
the merits of a case.
In other words, it
arises when a party
relies on or holds
tenaciously unto the rules
of court with little
or no regard to the
justice of the matter.
As far as such a
party is concerned, the
rules must be followed to
the last sentence, the
last word, and the
last letter. The party
emphasizing technicality has
little or no regard to
the justice that would
be sacrificed or the
injustice that would be
caused to the opponent. ”

Apparently, the procedural rules are made to guide the court of
law and the legal practitioners, and they are meant to be strictly
obeyed. However, no rule of court is made to defeat or stand as a
clog to the process of justice delivery .This is because these
rules are meant to serve as beacon lights to the parties to a
dispute illuminating the path leading to justice. There is no doubt
that the purpose of these rules has been changed to something else
and rules are used to delay trials or frustrate legal proceedings
in the name of winning the cases by all means.

In WILLOUGHY vs.
IMF (1987)1
NWLR (pt.
48)105, the Supreme Court held
that “… It is perhaps for
the reason of the
difficulty in an objective
definition of justice that
it has been considered
safest to regard justice
to be done once it
is according to law;
and law must necessarily
include the procedure laid
down for its attainment.. ”

No one is of the view that rules of court should not be adhered
to, but when the strict adherence to these rules will result in
injustice, court should not insist on the strict compliance. It is
a trite that non compliance with the rules attract penalty unless
it is minimal, but one should not place  technicality over
substantial justice, this is because insistence on compliance with
rules of court would amount to technicality and would defeat the
intendment of law makers if such is allowed.

In FRN vs.
DAIRO (2015)6
NWLR (pt
1454)141 the court held that:
“Rules of court are
meant to be obeyed.
However, obedience to rules
must not be slavish to
the point that justice
in a case is destroyed
or thrown overboard….
Therefore, if in the
course of doing justice,
some harm is done to
some procedural rules which
hurt the rule, the
court should be happy
that it took such line
action in pursuance of justice.
”

I find it necessary to give some instances where technicalities
were unnecessarily relied on in order to delay or stultify the
process of justice delivery. Before that, let’s first consider what
Fabiyi JSC said “the current
vogue is
substantial justice…
but one should
not talk of
technicality when
a substantive
provision of the
law is rightly
invoked.”

In line with above statement, it is shown that judicial
authorities have been rightly shifted from reliance on undue
technicalities to substantial justice.

1- BANK OF INDUSTRY LIMITED & 2 ORS vs. PRINCE
MICHEAL ADEWALE & 1 OR (2014).

In this case, the trial court struck out the matter on the
ground that service of originating process was not effected
personally on the defendant and the rule is that originating
processes are to be served personally on parties except where the
court ordered substituted services , as such, it held that, the
court lacked the requisite jurisdiction.  It was argued in
this case that, where the writ of summons has been regularly issued
and effected on a party without compliance with the Sheriffs and
Civil Process Act, what is void and to be set aside in this case is
the service and not the writ itself.

I’m of the view that, if technicality is allowed in this case,
definitely the substantial justice would definitely be handcuffed.
Even though the trial court struck out the case based on the
technicality, the judgment of the trial court was later set aside
on appeal. It was held on appeal that:
“the rules
of court
relating to
service is
merely a
rule of
procedure and
not a
rule of
substantive law
conferring
jurisdiction on
a court
of law.

That
substantial
justice, where
possible, must
not be
allowed to
be defeated
by
irregularities
or
technicalities
that could
be cured
by the
exercise of
a court’s
discretion. ”

Though, to effect service of the originating process on the
party is fundamental to the trial. Notwithstanding, where the party
who is to be personally served with a process has entered his
appearance, I don’t think that there’s a need for reliance on
technicality to defeat the interest of justice since the purpose of
service is already achieved. The court is expected to use its
discretion judicially and judiciously and order the service of
court process to be properly effected as required where the
personal service is mandatory not to strike out the case in
totality.

In a related case, ADISA vs. MOHAMMED
(2014) ALLFWLR
(pt.732) 1828 where a party
insisted on the fact that affidavit of service must be shown to
prove that the service was actually effected on the party. It was
held that: “Where the party who
is to be served with
a process appears in
court, there will not
be need to still
insist on affidavit of
service to prove the
service except where personal
service is mandatory.’’

2- In AGUNBIADE vs.
OKE (2015)
ALLFWLR (pt.
811)1330
C.A at
1333 where the petition of the appellants was
struck out on grounds of wrong heading”
Presidential and
Assembly Election
Tribunal” instead of” National
and State House
of Assembly Election
Tribunal” The court on appeal held that: “The
court has consistently shifted
away from the narrow
technical approach to justice
and now pursues instead,
the course of substantial
justice. Court of law
should not be unduly
tied down by technicalities,
particularly where no
miscarriage of justice would be
occasioned.”

To bring us back to the era of technicality; a legal
practitioner may choose to turn the eyes of court at a minimal
error which causes no harm to his case, and strongly relies on the
said error as the only alternative for him to destroy the case.
However, a judge whose duty is to give a room to substantial
justice to live should not be carried away by any unproductive
display from the bar to defeat the course of justice. Rather, the
judge will order the other party to do the needful which is
amendment of court process.

3- In OBASI vs.
MIKSON ESTABLISHMENT
INDUSTRIES LTD
(2016) ALLFWLR
(pt. 859) 811
SC, a misnomer occured when the correct person was
brought to court under a wrong name which happened to be the ground
among other grounds of appeal. It was held in this case that:
“The day of technicality in
the application of law
and rules are spent.
Technical justice has been
replaced by substantial justice
in our courts. ”

The decision of courts in above cases brings back to my memory
the statement of WALTER SAVAGE
LANDOR who says: “When
law becomes a
science and a
system, it
ceases to be
justice.” The Supreme Court has even made it clear
to every legal minded persons in EZE
vs. FRN
(2017)15 NWLR
(pt. 1589)433
that “justices of
the Supreme
Court are not
judicial technicians
and Supreme
Court is not
a workshop of
technical justice.”

To unveil the truth, there are frivolous applications that legal
practitioners file to frustrate the case or the party in a suit. In
some cases, a legal practitioners use that as a tactic to delay or
play the judge without considering that lives or livelihood of
parties are at stake.

It is important to note that, no matter how a legal practitioner
relies on technicalities, justice would be done at the end of the
case. The courts of law know how to invoke procedural rules and
substantive laws together in arriving at the substantial justice.
It was held in WASSAH vs.
KARA (2015)4
NWLR (pt.
1449)[email protected]^[2] that
“law is blind. It has
no eyes. It cannot
see. That explains why a
status of a woman with
her eyes covered can
be found in front of
some high court. On
the contrary, justice is
not blind. It has many
eyes, it sees, and
sees very well. ”

It is a notion from people’s school of thought that, lawyers are
liars or lawyers are trained how to change white to black and vice
versa. I can safely dispute that assertion to some extent, but
unfortunately, one of my hands is tied down when I see a lawyer
raising undue objection to frustrate the case. Nevertheless,
lawyers are not liars, and the presumption of those who believe
that lawyers are liars is built on the total ignorance of what the
legal profession is all about. This is because; a man stretching
his neck from outside to see what is happening inside cannot claim
to see the true story of the incidence.

The Rules of Professional Conduct has made it known to a legal
practitioner, particularly Rule 14 and 15 that, lawyers should
properly render legal services to their client, and it doesn’t mean
that, lawyers should blindly argue a case to defeat the course of
justice or file baseless application in order to satisfy their
client without considering the substantial justice.

Rule 14 (1)
It is the duty of a lawyer to devote his attention, energy and
expertise to the service of his client and subject to any rule of
law to act in manner consistent with the best of the client.

Rule 14 (2)
Without prejudice to generality of paragraph (1) of this rule, a
lawyer shall –

(e) Where he considers the client’s claim or
defense to be hopeless, inform him accordingly.

Rule 15(1) in
his representation of a client, a lawyer may refuse to aid or
participate in conduct that he believes to be unlawful even though
there is some support for an argument that the conduct is
legal.

Rule 15(3) in
his representation of his client, a lawyer shall not-

(b) File a suit, assert a position, conduct a defense, delay a
trial, or take over action on      behalf
of his clients when he knows or ought reasonably to know that such
action would serve merely to harass or maliciously injure
another.

(c) Knowing advance a claim or defence that is unwarranted under
existing law, but he may advance such claim or defence if it can be
supported by argument in good faith for an extension, modification,
or reversal or existing law.

In BUHARI vs.
OBASANJO
(2003)17 NWLR
(pt 850) 587, it
was held that: ‘The beauty of
law in a civilized
society is that, it
owes its respect and
due observance to the
society. It should be
progressive and act as
a catalyst to social
engineering. Where it relies
on mere technically or
outmoded or incomprehensibility
in a jacket of
hotchpotch legalism that is
not in tune with the
times, it becomes anachronistic
and it destroys or
desecrates the temple of
justice it stands. ”

Legal practitioners as ministers in the temple of justice are
expected to assist the courts to do justice to a case and not
otherwise, and also forgo unnecessary technicalities in the
interest of justice. CC Nweze JSC while citing
Abiru JCA in IDISI
vs. ECODRIL NIG.
LTD (2016)12
NWLR (pt.
1527)[email protected]^[3]
362 said “Lawyers
who misuse
their knowledge
of the
law and
legal procedure
to stultify
the process
of
administration
of justice
are a
disappointment
and constitute
a clog
to the
progress of
the legal
profession.”  Judges are also
expected to exercise their discretionary powers in ignoring undue
technicalities and striking out motion meant to delay trials.

In conclusion, it is submitted that the era of technicalities is
gone and this does not means that, rules of court should be
disregarded but where non-compliance with the rules cannot affect
or cause any miscarriage of justice, undue technicality should not
be listened to in order to attain substantial justice.

By : Y. A, Usman Esq
(Ar-rohees),Email: [email protected],
Phone: 07033589425^[4]

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