"I recognize the plank of the appellants' complaint to be whether the lower Court in entertaining the respondents' application made by way of motion on notice outside the pre-conferencing session was valid, in view of the stipulations of Order 33 Rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005. Although I see with the appellant that rules of Court are meant to be obeyed, as stated in the case of Oforkire vs. Maduike (2003) 5 NWLR (pt. 812) 166 @ 181 cited by the appellants, it is equally trite in that where a party in litigation takes a most irregular, unusual and precipitate action in judicial proceedings, for the sake of action qua litigation as pronounced in the case of Ntuks vs. NPA (2007) 13 NWLR (pt. 1051) 392 @ 419, that would amount to abuse of judicial process.
I must however differ with the appellant on his submission that an application as in the instant case cannot be taken outside the pre-trial period. The lower Court in his judgment dwelt at length on the reason upon which the application was tabled before him, and his reasons for entertaining the application. The rules of the lower Court makes provision for urgent applications. I have been referred to Order 33 Rules 3 and 4 of the Rules of the lower Court by the appellant, and having studiously examined the provision, found it unhelpful to the appellants' position. In the same vein all the cases cited by the learned counsel deals with abuse of Court process, and not the appellants' main submission on the presentation of the application outside the pre-trial conferencing session as contended.
My humble viewpoint from the rules clearly provided is that interlocutory applications, motions whether exparte or on notice are provided for by Order 11 Rule 1 which states that;
1. Subject to these rules, interlocutory applications may be made at any stage of an action. On where the application is to be by motion, the rules go on to prescribe the mode of application, and by Rule 4, it is provided that a motion may be heard at any time while the Court is sitting or by a judge in chambers. It may be that learned silk is referring to the practice in our Courts, particularly on election matters, where the consideration of interlocutory applications are only determined at the pre-trial session, the rules having so provided.
In the instant case, I have not been convinced that such a rule exists with regard to Kwara State, and I so hold. Furthermore, by the provision of Order 9(5) (1), to the effect that, notwithstanding the provisions of Rule 4, dealing with the sittings of the Court, any action may be heard by a judge in Court during any of the periods mentioned in Sub-rule (1) (b) or (c) of Rule 4 or Sub rule 2 where the action is urgent. The lower Court at page 168 of the record of appeal identified the fact and rightly too that; by the rules of this Court all cases demanding urgency can be heard during the vacation period and it is not indicated that a vacation Judge cannot entertain a case pending before another Judge if there is urgency to entertain same and therefore held that the Court, considering the facts in the affidavit of urgency in this application of the view that it is in the interest of justice to entertain the application. I cannot fault him on that regard.
I therefore hold that the contention by the learned silk to the effect that the rules of the lower Court prohibits the hearing of applications outside the pre-hearing period as misconstrued, more so when the nature of the application brought during the vacation period is considered. I will rather hold with due respect to the learned senior counsel, that the rules of the lower Court do not preclude an urgent application during the vacation period to be entertained outside the pre-trial session, consequently, the contention by the appellants that such amounted to a miscarriage of justice as unfounded."
Per BARKA, J.C.A. in ABOYEJI & ANOR v. ATOYEBI & ORS CITATION: (2018) LPELR-44975(CA)
