P. D. Pius

In 13th century English, common law was invoked. Rigid rules apply. No matter how good your case was, it can be thrown out on technical grounds. Basically on forms. E.g that you were supposed to use Form A and not form B. In today’s parlance it could be that you were supposed to use writ instead of petition or originating summons. The justice system then was completely blind to merit of the case or actual fact of injury. It was not concerned with conscience or good faith.

The common law was so rigid that common law judges refused to allow a man stay in the house he built and planted trees in the garden. See Earl of Oxford’s case (1615) 1 Ch. R. 1. It was as a result of this harsh injustice occasioned by rigid rules of common law that the law of equity was developed to bring succour.

By equity, it does not matter that rigid rules of common law was not followed, once conscience, good faith or law of God dictates in favour of a party then he should be served justice. Thus, Lord Ellesmere was reported to have decided that “by law of God, he that built a house must live in it”. This is to reduce the harsh application of rigid rules of common law. It was also to cure the conflict between rigid common law and equity that the Judicature Act of 1873 was enacted to the effect that where there is conflict between rigid common law and equity, then equity should prevail.

Similarly, section 12 of Federal High Court Act has codified the position from English Law that where there is conflict between rigid common law and equity, the rules of equity should prevail. In logic it is the battle of form and content!

Be that as it may, the Supreme Court appears to now hold a firm position insisting on rigid rules on commencement of action. Their Lordships appears to be unwavering on rigid rules on commencement of action that it must be followed. They are not interested in the merit of the case as long as rigid rules of commencement of action is not followed. This account for the decisions in APC v. Ebeleke, Edevie v. PDP, Nyameh v. INEC and now Lawan v. Machina. These cases were determined on technical points and not the real dispute between the parties.

In my view, the mode or way or manner of commencing a court action ought not to defeat a case full of merit. In other words, if it is true that Mr. A won the election, does it matter that he file his case by petition or writ or summons? How does use of forms alter the facts of the case?

You may take flight to Lagos. You may follow train. You may follow night bus. In either case, the question should be whether you got to Lagos or not. The fact is that you are in Lagos, it does not matter the mode of transportation. This is my understanding of justice delivery. To focus on forms of commencement of action instead of facts of the case is in my humble view a journey back to 13th century English system were rigid common law hold sway while equity, conscience, good faith and substantial justice is sacrificed.

P. D. Pius, Esq., ACIArb. (UK)
piusdanba@gmail.com
08038944639