LITIGATING THE MARGINS;
A CAMPAIGN FOR ITS FINAL BURIAL
One noticeable feature that permeates through Nigerian advocacy system is the practice of rigid adherence to procedural technicalities and emphasis on forms, otherwise known as ‘litigating the margins’. This practice once used to be the hallmark and a parameter for identifying the best advocates in Nigeria. In that age, a good advocate was one who was a master of procedures and quick to fault the processes filed by his adversary. In the same vein, the best Judges were those who had learnt the ‘procedural gimmickry’ and adjectival rules by heart and those whom no procedural error would escape their notice or those who were not reluctant in striking out suits in limine for failure to comply with the procedural provisions of the relevant Court. Advocacy used to be a ‘game of sports’ as the best counsel in the art wins, not on the merit or substance of his client’s case but for the procedural error or failure to comply with forms by his opponent.
Most cases were won during that era before trial because the advocates were quick and apt in reminding the Judges that the rules were not complied with, that the action was not competent and that the effect of same should be an order striking out the action. Preliminary objections and demurrers1 were their potent weapons. Eloquence and copious references to Common Law decisions were the armory. The advocacy formula then was very simple. It was of high similitude to that colloquial ‘rule’ in the game of football allegedly being preached and indoctrinated by unfledged coaches that: ‘If a defender missed the ball, he must not miss the opponent’s leg’. The rule in advocacy then used to be – ‘If you are sure of not getting substantive justice based on the merit of the case, frustrate the suit by procedural and technical gimmicks’ i.e. litigate the margins. Apparently, that was the philosophy of counsel of that school of thought during the era and with it, the best and the brightest amongst them won so many cases and recorded big names, reputation and considerable achievements. It was a ‘game of sports’, they were masters of the game, they played adroitly and won superlatively.
The evolution of this practice is inextricably intertwined with the source of the Nigerian legal system itself. The Nigerian legal system owes much of its existence to the Common Law of England. Hence, our legal system inherited the Common Law of England in its entirety and indeed, not without its rigid rules and technicalities. The Common Law of England is patently characterized with its rigidity and technicalities. The days of Common Law were the days when a cause of action would be defeated for failure to file the appropriate writ or Form of Action; the days when the Courts were being too systematic and unnecessarily concerned with forms, procedures, technicalities, rules and niceties than the need to do justice; the days when the most trivial error on the part of a counsel or litigant would automatically result in the matter being struck out or judgment entered against him; the days when the failure of a party to seek the most appropriate remedy from the little available remedies would shut the door of justice on him; the period when forms were equally as, if not more important than substance. Those were the Common Law days before the emergence of the equitable jurisdiction of the Chancery Courts.
The most important case that readily comes to mind is the Pinnels’ case2 decided by the Court of Common Pleas. In that celebra causa, the court per Lord Coke recognized that the plaintiff ought to fail in his action based on the merit of the case, yet succeeded as a result of the technical flaw in the defendant’s pleadings. During that period, the Common Law position used to be expressed in the full latin maxim: ‘forma non observata infertur adnullatio actus’ i.e. when forms are not observed, a nullity of the act is inferred.
THE DANGERS OF TECHNICALITIES
The paradox of practice rules of court is that, though they are designed for the promotion of efficiency in the administration of justice, on the contrary, they are being used by advocates to grind the driving wheel of substantive justice to a halt. Adjectival laws or rules of procedure are meant to guide parties and the Court in achieving the sole end of justice. It is not meant to circumvent true justice (substantive justice) for procedural justice. Hence, Oliver, J. in the case of Burston Finance v. Wilkins3 stated the purpose of the practice rules of the superior courts as thus:
“The rules of the Supreme Court are the instrument through which the courts act to secure justice, their servants not their tyrants”.
The above classic exposition of the learned jurist amplifies the rationale behind practice rules and procedures. They are not meant to clog the wheel of justice but to aid it. Hence, they are to be used for that purpose only and nothing more.
Another inherent danger in the practice of ‘litigating the margins’ is that it tends to visit the sins of counsel on the litigants. This obviously is not a good practice of law. The rule of litigation is that the sins of a counsel should not be visited on the litigants. A party to an action should not suffer a reverse or detriment as a result of procedural flaws made by his counsel. The Supreme Court per Coker, JSC in Doherty v. Doherty4 stated the position quite pungently thus:
“It occurs to us that the failure to comply with the conditions of appeal is entirely due in this case to the fault of appellants’ solicitors and to shut them out from the hearing of appeal on the merits is to hold them personally responsible for the negligence of their solicitors”.5
In the same vein, Karibi Whyte, JSC in Bello & Others v. A.G Oyo State6, stated the same view that the Court will not visit the carelessness of counsel on the client. His Lordship stated:
“…I think I am speaking the mind of all engaged in the administration of justice not only in this court but in all courts in this country that the day the courts allow the inarticulate ignorance of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the court itself in default”.7
Hence, the law is trite that a court of law should be wary of allowing a party to suffer from the procedural errors made by his counsel. Apparently, this rule of law is completely undermined by the practice of litigating the margins.
It is submitted that a good advocate is made from a sound knowledge of the law on the subject matter of his client’s action and a mastery of the facts. In fact, litigating the margin is a ‘chasing the shadow’ exercise and an attempt to obtain justice through the back door. It is a form of distraction that makes advocates less interested in the facts of the case but more concerned in the forms. A good advocate, as Lord Hewart put it, “must claw the facts. If he does not, all the virtues and brilliant improvisations will not help him. They must all be retained in his memory so long as the case lasts; dates, names, times, exhibit numbers”.9. This is one thing that is grossly sacrificed in the practice of clinging tenaciously to technicalities alone.
Another danger inherent in this is that it tends to promote the ‘sporting theory of justice’ where ‘the best in the game’ wins. Hence, the Supreme Court has deprecated this practice in a plethora of cases as being very dangerous to the spirit of justice. In Afolabi v. Adekunle,10 the Court per Aniagolu, JSC restated this view as thus:
While recognizing that the rules of court be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of outsmarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them”.11
The above exposition of His Lordship clearly described the ‘game’ of litigating the margins. The law lord; Oputa, JSC in another matter – Aliu Bello & Ors v. A.G. Oyo State12 also cautioned as follows:
“The picture of law and its technical rules triumphant and justice prostrate may, no doubt have its admirers. But the spirit of justice does not reside in forms and formalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pit falls of technicality”.13
Most importantly, the practice of litigating the margins wastes time thereby causing unnecessary delay in the judicial process. In fact, it is one of the patent reasons why some cases spanned several years in Court before their final determination. This gives bad impression to our judicial system, stigmatizes the lawyers and pillories the Judges.
THE EMERGING TRENDS IN LEGAL PRACTICE
The emerging trends in the legal practice have posed serious challenges to the survival of procedural gimmicks and technicalities. Technicalities are now under serious attack and gradually evading. With the increasing spate of ‘progressive judges’, technicalities are now being jettisoned with impunity. There is now a paradigm shift from margin to the centre; from form to the substance.
The new Rules of Court15 perhaps seem to be another heavy blow on the practice of litigating the margins. With the frontloading system where all originating processes are to be filed ab initio, it is no longer business as usual and a counsel cannot afford to shy away from the substance of the case as he must be conversant with the facts from the beginning while preparing the processes. There is hardly any room again for ‘hide and seek game’ in advocacy. After all, the purpose of the New Rules as declared by Order 1 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2012 is as follows:
“Application of these rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice”.
Hence, it is only material and substantial non-compliance with the rules of Court that shall nullify proceedings. If it is one bearing on technicality or form, it is now to be regarded as an irregularity which is curable. Thus, Order 5 Rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 states:
“Where 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 as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any directions as he thinks fit to regularize such steps”.
Further, it also provides that:
“The judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.”16
Undoubtedly, this is a shift of focus; from form to substance. The practice of litigating the margin has therefore been expressly excluded by the New Rules. It is now to be seen as anachronistic and outmoded. Most importantly, at the National Industrial Court, technicality has been buried and its carcass is deep down under the ground.
CAMPAIGN FOR ITS FINAL BURIAL
This article advocates for the final burial of technicalities, over reliance on forms and procedures and litigating the margins in our judicial process as they are inimical to the interest of justice. The inherent dangers in such practices were adumbrated by Olatawura, JSC in Nipol Ltd v. Bioku Investment & Property Co. Ltd17 thus:
“…Technicality in the administration of justice shuts out justice. A litigant sent out of court without a hearing is denied justice. It is therefore better to have a case heard and determined on merit than to leave the court with a shield of victory on mere technicality”18
The need for the Court to eschew technicalities was also stated by Kayode Eso, JSC in his characteristic lucidity in the case of Chiwendu v Mbamali19 as follows:
“Care should be taken by the court always not to sacrifice justice on the altar of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on the merit… The modern trend towards the abandonment of this type of technical difficulties is crystalised in the case of in Re Vandervells Trusts (No2) White & others V. Vandervell Trustees Limited (1974) 3 all E.R. 205. There, Lord Denning M.R, puts the matter most forcefully. I respectfully approve of the dictum of the learned Master of the Rolls when he said:
‘Counsel for the executors stressed that the points taken by counsel for the trustee company were not covered by the pleadings. He said time and again: this way of putting the case was not pleaded; no such trust was pleaded; and so forth. The more he argued, the more technical he became. I began to think we were back in the bad old days before the Common Law Procedure Acts, when pleadings had to state the legal result; and a case would be lost by the omission of a single averment. All that has been swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result…’”20
In summary, technicalities should no longer be allowed to exist in our judicial process. It is an albatross in the temple of justice. Progressive judges are now reorienting themselves towards completely obliterating any form of technical rules attempting to inhibit the course of justice. They should do only substantive justice. Hence, the admonition of the Supreme Court in Trans Bridge Co. Ltd v. Survey Int. Ltd22 is apposite:
“It would be tragic to reduce judges to a sterile role and make an automation of them. I believe it is the function of judges to keep the law alive, in motion, and to make it progressive for the purpose of arriving at the end of justice, without being inhibited by technicalities. To find every conceivable but acceptable way of avoiding narrowness. Short of a judge being a legislator, a judge to my mind must possess aggressive stance in interpreting the law”23
Despite all these warnings by the Supreme Court, it is highly confounding that some judges still engage in the practice of allowing technical justice to prevail over substantive justice. Some merely pay lip service to the proposition that ‘substance prevails over form’. Accordingly, this proposition and like phrases may sit conveniently in the opening paragraphs of the body of a judgment, but at the concluding part the Judge will rely on a technical rule in arriving at a decision. Some lawyers still continue to enjoy this exercise of ‘picking one’s way between pitfalls of technicalities, which is very bad for our justice system. Technical justice is no justice. There can be no true justice unless the substance of a matter is examined. As Kayode Eso, JSC put it in State v. Gwonto28 thus:
“The court has for some time now laid it down as a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”29
It is only the Courts that can help to remove the emphasis ‘Common Law lawyers’ place on technicalities; not even a legislative reform can achieve this. If the Courts regularly show by rulings and judgments that they are more concerned with substance than form, the practice of litigating the margins would be given a befitting burial. Confidence would be restored back in the litigants as they are sure of getting justice without technical inhibitions and the judicial system will be just, efficient and functional. Advocacy would no longer be a sporting game of ‘survival of the fittest’ or a ‘hide and seek game’ as it once used to be. The test for identifying a good advocate would then be a sound knowledge of the law on the subject matter, mastery of the facts of the client’s case and a prodigious application of the law to the facts. This is advocacy! To attain this, the Judges must always bear in mind the admonition of Lord Atkin in the United Australia Ltd v. Barclays Bank Ltd30 (cited with approval by the Supreme Court in UTC (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244) that:
“When these ghost of the past (meaning forms of actions) stand in the path of justice clanking their mediaeval chains, the proper cause for the judges is to pass through them undeterred”.31
1 Demurrers are no longer part of our civil litigation process. What applies now is proceedings in lieu of demurrer. See for instance, Order 22 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and also Order 22 High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
2 Pinnel V. Cole (1602) 5 Co. Rep. 117a
3 The Times, 17th July, 1975.
4 (1964)1 All N.L.R.299
5 Ibid. See also Nwadike v. Nwadike (1987) 4 N.W.R.(Pt. 65) 394, African Continental Bank Ltd. v. Elosiuba & Ors. (1991) 3 N.W.L.R. (Pt 178) 133, Kalu & Ors. v. Igwe & Ors. (1991) 3 N.W.L.R. (Pt. 178)168, Onagoruwa & Ors. v. U.B.N. (1992) 1 N..W.L.R.(Pt. 217) 289 and Odutola v. Kayode (1994) 2 N.W.L.R. (Pt.341) 1.
6 (1986)5 N.W.L.R. (Pt. 45) 825.
7 Ibid at p.871
9 See Kayode Jegede, S.A.N. “The Legal Profession, Our Noble Heritage” in Legal Thoughts- Essays in Honour of Prof. B.O. Iluyomade (ed. I.A. Yakubu) (2005) p. 94.
10 (1983) 2 S.C.N.L.R.141.
11 Ibid at p.150
12 (1986) 5 N.W.L.R. (Pt. 45) 528
13 Ibid at p. 886 Paras E- G.
15 See for instance the High Court of Lagos State (Civil Procedure) Rules, 2012, The High Court of Ogun State (Civil Procedure) Rules, 2008 and The High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
16 Order 5 Rule 1 (3) of the High Court of Lagos State (Civil Procedure) Rules, 2004
17 (19923 N.W.L.R. (Pt. 232) 727
18 Ibid at p. 783
19 (1980) 3-4 S.C.31
20 Ibid at p.81-82.
22 (1986) 4 N.W.L.R.(Pt. 37) 576
23 Ibid at p. 596-597.
28 (1983) 1 S.C.N.L.R.142
29 ibid at p.160
30 (1941) A.C. 1
31 Ibid at p. 29