Effect of an Application Brought Under a Wrong Order or Rule of Court. 

Effect of an Application Brought Under a Wrong Order or Rule of Court.  Daily Law Tips (Tip 751) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:  

Lawyers are trained to be diligent. However, there are several cases of lawyers that have brought cases of their clients to court, seeking for reliefs, under wrong Orders or Rules of Court. Every court in Nigeria has its own Rules and when a lawyer appears before a court, the lawyer must abide by the Rules of the court and address the court with the correct and relevant Rules of the court. This work focuses on the effect of an application brought under a wrong Order or Rule of Court in any part of Nigeria.

Lawyers and Rules of Courts:

Courts are established in Nigeria to dish out justice. Lawyers are trained to accept and understand the disputes of their clients, as well as to represent their clients before the courts. In courts, lawyers make cocktails of facts and laws for judges, while advocating for the position of their clients. Like any other human being, lawyers are not perfect, so, lawyers can make mistake in court. This may lead to a lawyer appearing in a court to seek justice for his client but under a wrong Order or Rule of Court. In such cases, some opposing lawyers will jump on their feet to capitalize on such mistakes and seek for the dismissal/refusal of the application.

In the interest of justice, the apex court (the Supreme Court of Nigeria) has at several times emphasized that a wrong Order or Rule of Court should not affect the case of any party, so far as there is in existing correct Order or Rule of Court that permits the application sought. It simply means that, where a lawyer is seeking for an application that a court has powers to grant, the mere fact that the lawyer based his application on a wrong Order or Rule of Court will not affect the power of the court to grant such application.

For the avoidance of doubt, below are the words of the Supreme Court on this issue;

1. “… this Court is replete with multiplicity of decided authorities to the effect that a Court is entitled to grant an application brought under a wrong rule of Court or statute provided there is legal basis for it. See Maja v. Samouris (2002) FWLR (Pt. 98) 818, (2002) 9 NSQR 546 at 567. In fact, this Court had this to say in Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337 at 351, (1999) SCNJ 64. “It is trite that a particular rule of Court or law under which a motion is brought is generally stated in the motion paper but failure to do this will not make the motion incompetent nor the order upon which the motion is granted invalid, so long as there exists a rule of law which can back up the motion.”  Per OKORO ,J.S.C (Pp. 21-25 paras. F) in the case of BODE THOMAS v. FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC).
2. “…where a court has jurisdiction to make an order, the fact that the power of the court, is invoked under a wrong law or rule of court, is no reason, for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors v. Musilim Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548: (1986) 4 SC 61 at 68 and Dr. Maja v. Mr. Costa Samouris (2002) 3 SCNJ 29 at 50, (2002) 7 NWLR (Pt. 765) 78.”  Per OGBUAGU ,J.S.C (Pp. 26 paras. A) in the case of WITT & BUSCH LIMITED v. DALE POWER SYSTEMS PLC (2007) LPELR-3499(SC)

Conclusion: 

Orders and Rules of Courts are made to be obeyed. However, a court has the powers to bend its Rules, where such Rules will cause injustice. Denying the case/application of a party, over an issue that the court has powers to grant, merely because the application was brought under a wrong Order or Rule of court will do injustice. After all, clients should not be allowed to suffer due to mistakes of their lawyers. Justice should be above mere legal jargons and technicalities. This is part of the reasons why the effect of an application brought under a wrong Order or Rule of Court, is that the application is valid and as good as one brought under a correct Order of Rule of Court.

My authorities, are:

1. Sections 1, 2, 3, 4, 5, 6, 36, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Judgment of the Supreme Court of Nigeria in the case of BODE THOMAS v. FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC).
3. Judgment of the Supreme Court of Nigeria in the case of WITT & BUSCH LIMITED v. DALE POWER SYSTEMS PLC (2007) LPELR-3499(SC)
4. Onyekachi Umah, “Why Courts Must Hear Stupid Applications/Motions?” (LearnNigerianLaws.com, 17 September 2020) <https://sabilaw.org/why-courts-must-hear-stupid-applications-motions/> accessed 7 March 2021.
5. Onyekachi Umah, “When Courts Must Refuse To Consider Issues/Applications Before It” (LearnNigerianLaws.com, 10 September 2020) <https://sabilaw.org/when-courts-must-refuse-to-consider-issues-applications-before-it/> accessed 7 March 2021.
6. Onyekachi Umah, “Oral Application for Bail is Allowed in High Courts” (LearnNigerianLaws.com, 31 August 2020) <https://sabilaw.org/oral-application-for-bail-is-allowed-in-high-courts/>  accessed 7 March 2021.

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