LEMNA ENERGY RESOURCES LIMITED v. ENGR. MUKAILA MUSA (2013)

LEMNA ENERGY RESOURCES LIMITED v. ENGR. MUKAILA MUSA

(2013)LCN/6035(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of March, 2013

CA/L/779/10

RATIO

APPEAL: GROUNDS OF APPEAL: A GROUND OF APPEAL WHICH IS NOT RELATED TO THE DECISION APPEALED AGAINST SHOULD BE STRUCK OUT

Thus, a ground of appeal which is not related to, or does not apparently arise from, the decision appealed against is to be struck out. See
DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR (pt.979) 382; MERCANTILE BANK OF NIG. PLC VS. NWOBODO (2005) 5 NWLR (pt.5) NWLR (Pt.917) 184; LAC VS. AAN LTD (2006) 2 NWLR (Pt.963) 47; UKPI VS. IMOKE (2009) 1 NWLR (Pt.1121) 90 at1-24 C-E; 126-127 H-A; 129 A.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPEAL: GROUND OF APPEAL: IT IS NOT APPROPRIATE TO FORMULATE MORE THAN ONE ISSUE FROM A SINGLE GROUND OF APPEAL

Therefore, it’s a most undesirable practice to formulate more than one issue from a single ground of appeal. Undoubtedly, such an undesirable practice tends to obfuscate issues, thus invaviably leading to confusion. See LEEDO PRESIDENTIAL HOTEL LTD VS. BON (NIG) LTD (1993), NWLR (pt.269) 334; AGBE TOBA VS. LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (Pt.188) 664; EGBE VS. ALHAJI (1990) 1 NWLR (Pt.128) 546; UKPO vs. IMOKE (supra) 129 – 130 paragraphs E-8.
Most particularly, in the case of ABE TOBA VS. LAGOS STATE EXECUTIVE COUNCIL (supra), the Apex court was recorded to have aptly held, inter alia, thus:
It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issue with subsidiary issues. Where as the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination.
Per Karbi-Whyte, JSC at 120 paragraph H, and 130 paragraphs A-B, respectively.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CAUSE OF ACTION: NATURE AND DEFINITION
Indeed, the doctrine is trite, that a cause of action is the fact establishing or giving rise to, a right of action in a court of law. Invariably, it’s the factual situation, which gives a person a right to a judicial relief. Most cherishingly, this veritable principle is predicated upon a plethora of authorities including – EGBE VS. ADEFARASIN (1987) 1 NWLR (pt.47) 1; YUSUFU VS. COOPERATIVE BANK LTD (1994) 7 NWLR (Pt.359) 676; LUTH & MB VS. ADEWOLE (1998) 5 NWLR (pt.550) 406; FADERE VS. AG OYO STATE (1982), 4 SCI; UBA PLC VS. BTL INDUSTRIES LTD (2006) 19 NWLR (Pt.1013) 61, et al.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CAUSE OF ACTION: HOW TO FIND OUT WHEN IT ARISES

JURISDICTION: COMPONENTS

Undoubtedly, the locus classicus that is, more often than not, cited regarding the ever lingering fundamental issue of jurisdiction, is no other than MADUKOLU VS. NKEMDILIM (supra). Instructively, the dictum cherishingly profounded by the Supreme Court in that case, is to the effect that-
(A) Court is competent when-
(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: The defect is extrinsic to the adjudication.
Per Bairamian, FJ at 348, paragraphs E-G.
In the instant case, it’s not at all in doubt, that the lower court’s ruling of August 05, 2009 in question was to the effect that-
…the Claimant obtained judgment against the wrong Defendant.
… that service on LEMNA NIG LTD cannot be service on LEMNA ENERGY RESOURCES as their registered offices are different.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PARTIES: WHO IS A NECESSARY PARTY

Instructively, the term necessary parties denotes those persons whose participation in the proceedings of an action or suit is rather indispensable, for the proper determination of the vexed question involved in the action. Thus, in the absence of a competent party, as in the instant case, the subject matter that calls for determination in the action (suit) becomes undeterminable and rather otiose. The rights of the parties cannot be properly, and effectually, adjudicated upon by the court. In the instant case, it’s rather obvious, that the suit is not competent, thus ought to have been struck out by the court below. See AKINDELE VS. ABIODUN (2009) 1 NWLR (Pt.1152) 356 at 381 – 382 G-C; IFEACHO VS. INLAND MED COM. (NIG) LTD (2000) 1 NWLR (Pt.639) 105; EXPO LTD VS. PALAB ENT. LTD (1999) 2 NWLR (Pt.591) 449.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PARTIES: WHAT THE COURT MUST DO WHEN A PARTY IS IMPROPERLY SUED

JUSTICE

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

LEMNA ENERGY RESOURCES LIMITEDAppellant(s)

AND

ENGR. MUKAILA MUSARespondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of High Court of Lagos State, Ikeja judicial division, which was delivered by the Honourable Justice O. A. Taiwo on May 11, 2010 in suit No. LD/168/2008. By the said decision, the court below dismissed the Appellant’s application seeking to strike out the suit of the Respondent for non-disclosure of cause of action, and for being improperly constituted.
On February 21, 2008, the Respondent instituted the suit, vide a writ of summons and statement of claim, in the court below against the Appellant for wrongful termination of employment. By the said statement of claim thereof, the Respondent sought the following reliefs:
(d) AN ORDER of special damages in the sum of N7,125,000 – being the claimant’s due professional fees;
(e) AN ORDER of special damages in the sum of N375,000 – being balance due on claimant’s salaries and
(f) AN ORDER of general damages in the sum of N2,000,000 for the defamation of the claimant.
On April 4, 2008, the Respondent filed in the court below an application seeking an order entering final judgment against the Appellant in default of appearance and defence.
Consequent upon the said application, the lower court delivered judgment on September 5, 2008, to the following conclusive effect:
I have carefully considered the application of the Claimant/Applicant in this case … The Defendant did not enter appearance nor did he file a statement of defence although duly served, therefore the averments in the Claimants affidavit in support of the motion remain uncontroverted.
The court therefore has no option but to accept the unchallenged evidence of the Claimant.
I therefore enter judgment for the Claimant as per the writ of summons and statement of claim as follows:
1. The Defendant is hereby ordered to pay special damages in the sum of N=4,275,000.00
2. The Defendant is hereby ordered to pay special damages in the sum of N=375,000.00 being balance due on Claimant’s salaries and
3. The Defendant is hereby ordered to pay N50,000.00 as general damages
Cost is awarded to Claimant at N2,000.00
Ironically, however, the judgment in question was aborted. As borne out by the record of appeal of pages (page 168-176), the court below, in the ruling thereof delivered on May 8, 2009 found, as a matter of fact, that the “Claimant obtained judgment against the wrong Defendant”.
Not unexpectedly, the lower court came to the conclusion, thus:
In the final analysis, I uphold the arguments of Defendant/Applicant and hereby set aside the judgment of this court delivered on September 5, 2008.
Cost is awarded to Defendant at N=5,000.00.
On May 15, 2009, the Respondent filed an application seeking to amend the Plaintiffs statement of claim and to substitute the wrong defendant for the Appellant.
Consequent upon the afore said ruling, the Appellant filed in the lower court various processes. Most particularly, by the application thereof, dated December 4, 2009, the Appellant prayed the lower court for, the following reliefs:
1. An order dismissing the suit herein or in the alternative striking out writ of summons and statement of claim in this suit for nondisclosure of any reasonable cause of action.
2. An order striking out this suit for being incompetent.
3. An order striking out the writ of summons and statement of claim in this suit for constituting an abuse of process of this court.
Both applications were heard together, and accordingly reserved for delivery of ruling thereupon.
On May 11, 2010, the court below delivered the vexed ruling to the conclusive effect, thus:
Lemna Nig Ltd and Lemna Energy Resources are two distinct and separate legal personalities and one was substituted for the other by the Claimant upon application.
The right to sue Lemna Energy Resources is not derived from the competence of Lemna Nig Ltd as a Defendant but section 37 of CAMA 7990 which gives each company upon registration or incorporation a distinct and separate legal personality. The company becomes an “artificial person” as opposed to a natural person. It is capable of suing and being sued in its corporate name see the cases of SOLOMON VS. SOLOMON (1897) AC 22; LEE VS. LEE’S AIR FARIUIING LTD (1961) AC 72 PC.
……
Thus, I find that the Defendant’s application is misconceived and is hereby dismissed with N5,000.00 costs to Claimant.
……
In the light of the foregoing, I hereby grant the claimant’s application for amendment as prayed.
Cost is awarded to Claimant at N2,000.00.
Dissatisfied with the vexed ruling in question, the Appellant filed the notice of appeal thereof on June 2, 2010. Upon entering the appeal on July 30, 2010, the Appellant filed the brief of argument thereof on August 30, 2010. The Respondent’s brief was filed on September 30, 2010. Both briefs were apparently filed within the statutory time limits.
At page 1 of the brief thereof, the Appellant has set out the following two issues:
2.01 Whether considering the Respondent’s statement of claim at the lower court and the law in respect thereof, it discloses any reasonable cause of action against the Appellant herein. GROUND 1.
2.02 whether the situation of Lemna Nigeria Limited with Lemna Energy Resources Limited was properly done in view of the consideration by the lower court that they are two separate legal entities and notwithstanding that the substituted Defendant Lemna Nigeria Limited was an incompetent Defendant and the suit was not properly constituted before the lower court. GROUNDS 2 and 3.

Submitting on issue No. 1, the Appellant copiously alluded to page 320 of the Record, wherein the lower court made findings regarding the Respondent’s writ of summons and amended statement of claim. The Appellant contended that the lower court misdirected itself in law in sieving and sifting out a reasonable cause of action from the facts alleged in the Respondent’s statement of claim.
Further contended, that a reasonable cause of action means a fact, or combination of facts, which gives the plaintiff (Claimant) his cause complaint and the consequent damages: SAVAGE & ORS VS. UWECHIA (1972) 3 SC 214 at 221. And that a cause of action accrues when a breach of duty occurs, which gives the injured person the right to initiate an action to assert his legal right which has been violated: AMIDE VS. UBA (2008) 8 NWLR (pt.1090) 623 at 656 paragraphs B-C.
Allegedly, a cursory look at the writ of summons and statement of claim would reveal the emptiness of the Respondent’s assertion. That, the Respondent was unable to scale through the hurdles of the probation, as a result of which, his offer of employment was rescinded. Put in a more technical sense, the offer allegedly lapsed as a result of non-confirmation.
According to the Appellant, the Respondent who worked for just 7 weeks, was paid his due entitlements, amounting to the sum of N525,000.00 for that period. For that submission, a reference was made to the Respondent’s statement of claim at pages 3-23 of the Record.
Equally argued, that the facts of the case do not galvanise or conduce to a breach of duty by the Appellant, much less precipitate to any factual damage or injury to the Respondent the twin pillars of cause of action. Thus, vehemently postulated by the Appellant that a cause of action does not take the form of a wild imagination bereft of the faintest similitude of real injury, which the frontiers of this court can salvage. See SPDC (NIG) LTD vs. XM FED LTD (2006) 16 NWLR (Pt.1004) 189 at 200-201.
Alluding, copiously, to page 321 of the Record, it was postulated that the lower court fell into grave error, when it transcended the Respondent’s statement of claim to foray into the Appellant’s statement of defence, with a view to deciphering points of congruence in the respective parties’ allegations. Most particularly, the lower court allegedly, misdirected itself, when it held that the Appellant admitted employing the Respondent. Thus, the statement of claim should be struck out, because it implies that no reasonable cause of action has been made out against the Appellant. See RINCO CONSTRUCTION CO. VS. VEEPEE INDUSTRIES LTD & ANOR (2005) 9 NWLR (Pt. 929) 85; ETUK VS. NKOP (2006) 9 NWLR (Pt.984) 81 at 97 E-G.
That, the factual situation upon which the Respondent relies to support his claim is not capable of giving rise to any enforceable right recognizable bylaw, the fulcrum on which the court administers Justice. See EDU VS. ODAN COMMUNITY (1980) 8-11 SC 103; TIKA TORES PRESS LTD VS. UMAR (1968) ANLR 511.
The court has been urged upon to so hold, and accordingly reverse the lower court’s decision, and strike out the Respondent’s writ of summons and statement of claim, for want of a reasonable cause of action against the Appellant.
Regarding the second issue, it was submitted, inter alia, that the lower court misdirected itself in making the findings at pages 320-321 of the Record, regarding the substitution of the Appellant. Postulating that where an action is not competent or properly constituted, it robs the court of the jurisdiction to entertain same. The suit ought to be struck out, as it is incurably bad for want of jurisdiction, relying upon MADUKOLU VS. NKEMDILIM & ORS (1962) 2 SCNLR 347; HIFLOW FARIUI INDUSTRIES NIG. LTD VS. UNIVERSISTY OF IBADAN (1993) 4 NWLR (pt 290) 719 at 732-754; OFIA VS. EIEM (2006) 11 NWLR (Pt. 992) 652 at 663 B-D; section 6 (6) (B) of the 1999 Constitution as amended.
Further contended, that what underlies the jurisdiction of the court is the legal capacity of both the claimant and Defendant: AKINDELE VS. ABIODUN (2009) 11 NWLR (pt.7112) 356 at 381 B-E; AIFLOW FARM INDUSTRIES NIG LTD VS. UNIVERSITY OF IBADAN (supra).
Where either of the parties lacks capacity, there cannot be any valid amendment of the title of the suit. See OKECHUKWU & SONS VS. NDAH (1967) NMLR 368; NWABUEZE VS. NIPOST (2006) 1 NWLR (Pt. 983) 480 at 526; EXECUTORS OF THE ESTATE OF ABACH VS. EKE-SPIFF & ORS (2009) 2- 3 SC (Pt. 11) 93 at 112. And that as the Defendant before the lower court was incompetent, no valid amendment or substitution of the originating process can stand. An act is not only bad, but incurably bad. It is inconceivable, that one can place something on nothing and expect it to stand. Expressed in Latin atim QUOD AB INITIO NON VALET INTRACTU TEIWPORIS NON CONVALESCENT. See MACFOY vs. UAC (1962) AC 152.
The court has been urged to hold, that the original processes are incompetent. They cannot be cured by the amendment thereof, thus robbing the court below of jurisdiction. And that, the substitution of Lemna Nigeria Ltd was not properly done, as the court lacked jurisdiction to do so in the circumstances.
Thus, the court has been urged to allow the appeal, set aside the decision of the court below, and accordingly strike out the suit in question. Contrariwise, the Respondent filed the brief thereof on September 30, 2010. A total of three issues have so far been formulated at page 1 of the brief, as follows:
1. Whether the Respondent’s statement of claim disclose any reasonable cause of action against the Appellant (Defendant therein).
GROUND 1.
2. Whether the wrong Defendant – LEMNA NIG LTD is competent to sue and be sued.
GROUNDS 2 and 3.
3. Whether the substitution of the wrong Defendant LEMNA NIG LTD with the Appellant (the rightful Defendant) was properly done. GROUNS 2 and 3.
As a prelude to argument on the issues, the Respondent submitted, inter alia, that this court is in the same position with the court below. It can examine and draw conclusion from documents. See CONTRACT RESOURCES NIG LTD VS. WENDE (1998) 5 NWLR (Pt.549) 143. The provisions of section 16 of the Court of Appeal Act 1976 and Order 4 Rules 3 & 3 of the Court of Appeal Rules, 2007 were equally cited, to the effect that this court has unfetted powers to do virtually anything it finds necessary, to foster the attainment of Justice.
On issue No.1, the Respondent, without much ado, answered the vexed question raised therein affirmatively. It was postulated, that the Respondent’s statement of claim has disclosed not only one, but three good reasonable causes of action, under each of which pecuniary reliefs are sought. And the lower court identified two of them. As for the third cause of action, the court is invited to examine pages 221-224 of the Record, most particularly paragraphs 6, 9 (iv), 10, 13, 14 and 15 of the Respondent’s amended statement of claim October 7, 2009.
By the said paragraphs, the Respondent has claimed the sum of N7,125,000.00 based on the assertion that the Appellant asked him to postpone the collection of his professional fees to which he was entitled for service rendered. Despite several demands by the Respondent, the Appellant refused to pay the outstanding professional fees. See page 237, Record. Allegedly, this constitutes the 3rd cause of action, for which breach of duty, the Respondent sued the Appellant. As regards the definition of a cause of action, SAVAGE & ORS VS. UWECHIA (1972) 3 SC 214 AT 221, was cited and relied upon.
Finally agitating on issue No. 1, that it became a breach of duty when the Appellant refused to pay the Respondent’s professional fee for the services rendered, after different formal demands made by the Respondent.
On issue No. 2, the provision of section 37 of the Companies And Allied Matters Act 1990, was cited to the effect that upon incorporation, every company becomes an artificial legal person capable of suing and being sued. Submitted, that competence is deduced from the aforementioned provision of the Act. That, both the Appellant and LEMNA NIG LTD are separate legal persons, each having its own legal competence to sue and be sued. Thus, the Respondent’s action is valid, same having been commenced against a competent (but the incorrect) legal person: LEMNA NIG LTD. The law anticipates instances of misnomer of a Defendant, eg. Order 13 Rule 5 (High Court of Lagos State, Civil Procedure) Rules, 2004, to the effect that a court (should) do Justice by substituting the correct for the wrong defendant:
Regarding issue No.3, without any ado, the Respondent proffered an affirmative answer. Allegedly, the substitution of the wrong defendant was done most lawfully. It was based on a written application, pursuant to Order 13 Rule 5 of the High Court (Civil procedure) Rules, 2004, within the inherent powers of the court below. The court rightly granted the application. See page 177, Record. The argument on issue No. 2 was adopted for issue No.3, contending that the court below was proper when it ordered the substitution of the former defendant by the Appellant.
I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis a- vis the record of appeal, as a whole. As alluded to above, the Appellant has identified two issues for determination in the brief thereof. Issue No. 1 is distilled from ground 1 of the notice of appeal. While issue No. 2 is distilled from grounds 2 & 3. I am amenable to adopting the Appellant’s twin issues for the determination of the appeal. Contrariwise, the Respondent’s issues 2 & 3 have, most regrettably, been distilled, albeit extraneously, from grounds 2 & 3 of the notice of appeal. In my view, that singular act of distilling both issues 2 & 3 from the same grounds 2 & 3 of the notice of appeal, has amounted to the trite reprehensible act of proliferation of issues. Thus, both issues 2 & 3 of the Respondent are incompetent and liable to be discountenanced. And I so hold. The trite position of the law, over the years, regarding proliferation of issues in briefs of argument is very much unequivocal.
The principle is well settled, that a ground of appeal is a complaint against a specific finding of the lower court in the decision being appealed against. Thus, a ground of appeal which is not related to, or does not apparently arise from, the decision appealed against is to be struck out. See
DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR (pt.979) 382; MERCANTILE BANK OF NIG. PLC VS. NWOBODO (2005) 5 NWLR (pt.5) NWLR (Pt.917) 184; LAC VS. AAN LTD (2006) 2 NWLR (Pt.963) 47; UKPI VS. IMOKE (2009) 1 NWLR (Pt.1121) 90 at1-24 C-E; 126-127 H-A; 129 A.

ISSUE NO. 1
The issue No.1 raises the very vexed question of whether, or not, considering the Respondent’s statement of claim at the lower court and the law in respect thereof, it discloses any cause of action against the Appellant herein. I have had a cause to, heretofore, outline the submissions of the learned counsel contained in their respective briefs regarding the instant issue. It was the finding of the lower court, that the Respondent’s amended writ of summons and statement of claim have indeed disclosed a reasonable cause of action against the Appellant. At page 320, (lines 3-15) of the Record, the lower court was recorded to have held, thus:
I have read the amended writ of summons and statement of claims that between January 2007 (when he resumed work on the Defendant) and March 16, 2007 when his employment was terminated by the Defendant, he was entitled to be paid the sum of N900,000 at the agreed rate of N300,000 per month. He stated that the Defendant only paid him the sum of N525,000 out of the N900,000 due to him which the Defendant has refused to pay despite the letter of demand written by his counsel to the Defendant.
The claimant alleges that he was defamed by the Defendant when they wrote a letter to Allens Agbaka chambers that the claimant was sacked strictly for his professional incompetence.
The Claimant therefore claims special and general damage against the Defendant
The above mentioned facts in my view discloses a reasonable cause of action against the Defendant.
Pertinently, the term cause of action connotes a group of operative facts, giving rise to one or more bases for suing or commencing an action in a court of law. Invariably, a cause of action is a factual situation that entitles one person to obtain a remedy in a court from another person. See BLACK’S LAW DICTIONARY, 9th edition, 2009 at 251.
Interestingly, the definition of the term ’cause of action’ has been a subject of endless controversy for over a millennium. I think, Edwin E. Brayant, it was who once stirred up the hornest’s nest, so to say, by raising the rhetorically controversial question?
What is a cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of fact that entitles a party to maintain an action in a judicial tribunal. This state of facts may be – (a) primary right of the plaintiff actually violated by the Defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in the actions or suits for injunction or (c) it may be that there are doubts as to some duty or right or the right be clouded by some apparent adverse right or claim which the Plaintiff is entitled to have cleared up, that he may safely perform his duty or enjoy his property.
See THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE 170 (2nd edition 1899); BLACK’S LAW DICTIONARY (supra) at 251.
Indeed, the doctrine is trite, that a cause of action is the fact establishing or giving rise to, a right of action in a court of law. Invariably, it’s the factual situation, which gives a person a right to a judicial relief. Most cherishingly, this veritable principle is predicated upon a plethora of authorities including – EGBE VS. ADEFARASIN (1987) 1 NWLR (pt.47) 1; YUSUFU VS. COOPERATIVE BANK LTD (1994) 7 NWLR (Pt.359) 676; LUTH & MB VS. ADEWOLE (1998) 5 NWLR (pt.550) 406; FADERE VS. AG OYO STATE (1982), 4 SCI; UBA PLC VS. BTL INDUSTRIES LTD (2006) 19 NWLR (Pt.1013) 61, et al.

The real test for determining when a cause of action actually starts to run (accrue), is when there exist in favour of the complainant, all the facts that have happened necessary to establish that he is entitled to judgment. However, a cause of action has to be amply considered from the peculiar circumstances of each and every given case. See AMEDE vs. UBA PLC (supra) at 656 paragraphs D-F.
In the instant case, the amended statement of claim of the Respondent is contained at pages 322-349 of the Record. The Respondent’s case is that in January 2007, the Appellant instructed him to prepare and tender for it a technical bid in respect of the civil package 2 for Pan Ocean Oil Corporation of Nigeria, regarding the latters Ogharefee – Ovade Gas Project. Not unexpectedly, the Respondent agreed, and actually did carry out the instruction of the Appellant, albeit not gratuitously, but on the basis of Quid pro Quo-
“For a professional fee of 2.5% of the value of the tender – a position with which the Defendant also agreed.”
And the said project was valued at N=285,000,000. Thus, 2.5% of N=285,000,000 in question, allegedly, translates to N=7,125,000. Having accorded a most critical, albeit dispassionate, regard upon the Respondent’s amended statement of claim and the statement on oath, as a whole, I have found myself agreeable with the finding of the court below, at page 320 (lines 14-23)of the Record, to the effect, inter alia, thus:
The above mentioned facts in my view disclose a reasonable cause of action against the Defendant
…
In my view there are sufficient facts pleaded in the statement which if proved may entitle Claimant to a remedy.
The above findings of the court below are apt, cogent and duly supported by the record of appeal. Thus, this court ought to, on the face of the records, uphold the findings of the court below. That being the case, therefore, the answer to issue No. 1 ought to be in the positive, and same is hereby resolved against the Appellant.
However, the mere resolving of issue No.1 against the Appellant notwithstanding! I am of the paramount view, that it’s not yet ‘uhuru’ for the Respondent.

ISSUE NO. 2:
The second and last albeit not the least, issue raises the vexed question of whether or not the substitution of LEMNA NIGERIA LIMITED with LEMNA ENERGY RESOURCES LIMITED (Appellant) was properly done, in view of the consideration by the lower court that they were two separate legal entities, not-with-standing (the fact) that the substituted Defendant LEMNA NIGERIA LIMITED was an incompetent Defendant, and the suit was not properly constituted before the court below.
Undoubtedly, both parties are ad idem that the said original (former) Defendant, LEMNA NIGERIA LIMITED was substituted for LEMNA ENERGY RESOURCES LIMITED (Appellant). This fact is indeed borne out by the record of the appeal. The conclusive finding and resultant order, of the lower court on the vexed issue could indeed be found at page 321, (lines 1-23) of the Record, to the effect, inter alia, thus:
The right to sue LEMNA ENERGY RESOURCES is not derived from the competence of Lemna Nig Ltd as a Defendant but from section 37 of CAMA 1990 which gives each company upon registration or incorporation a distinct and separate legal personality. The company becomes an artificial person as opposed to a natural person. It is capable of sung and being sued in its corporate name.
…..
It is therefore my humble view that the Claimant’s application for substitution was correctly brought and that Lemna Energy Resources is competently sued.
In the light of forgoing, I hereby grant the Claimant’s application for amendment as prayed.
Cost is awarded to Claimant at N2,000.00.
That’s indeed, the crux of the matter! I do not think there is any dispute as to whether, or not, LEMNA NIGERIA LIMITED, or even the Appellant itself, was a distinct legal entity consequent upon the registration (incorporation) thereof, under the companies And Allied Matters Act (supra).
In-variably, the jurisdiction of any court of law, no matter how hierarchically eminent can only be invoked when an action is competent. Thus, where an action, suit (an appeal inclusive) is incompetent, or not properly instituted, the court is devoid of the necessary vires, or jurisdictional competence, to entertain and determine same.
Undoubtedly, the locus classicus that is, more often than not, cited regarding the ever lingering fundamental issue of jurisdiction, is no other than MADUKOLU VS. NKEMDILIM (supra). Instructively, the dictum cherishingly profounded by the Supreme Court in that case, is to the effect that-
(A) Court is competent when-
(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: The defect is extrinsic to the adjudication.
Per Bairamian, FJ at 348, paragraphs E-G.
In the instant case, it’s not at all in doubt, that the lower court’s ruling of August 05, 2009 in question was to the effect that-
…the Claimant obtained judgment against the wrong Defendant.
… that service on LEMNA NIG LTD cannot be service on LEMNA ENERGY RESOURCES as their registered offices are different.
…
In the final analysis, I uphold the arguments of Defendant/Applicant and hereby set aside the judgment of this court delivered on September 05, 2008. Cost is awarded to Defendant at N5,000.00.
Having discovered that the said judgment was obtained against a wrong defendant, there is no doubt that the lower court was absolutely right when it eventually summoned courage to set it aside on May 11, 2010. Undoubtedly, the lower court has the necessary jurisdictional competence to do so. As alluded to above, the instant appeal is against the ruling of the lower court, delivered on May 11, 2010 (316-321) thereby granting the Respondent’s application (207) seeking to substitute the wrong Defendant (LEMNA NIGERIA LTD) with the Appellant. The Appellant’s motion (page 263, Record), seeking to dismiss or strikeout the suit for being incompetent, was however dismissed. see page 321 (lines 8-23) of the Record thus:
It is therefore my humble view that the Claimant’s application for substitution was correctly brought and that Lemna Energy Resources is competently sued.
…
Thus I find that the Defendant’s application is misconceived and is hereby dismissed with N=5,000.00 costs to Claimant.
In the light of the foregoing, I hereby grant the Claimant’s application for amendment as prayed. Cost is awarded to Claimant at N=2,000.00.

I would want to believe, with every sense of deference, that the vexed ruling of the lower court, the subject of the instant appeal, is most out-regiously erroneous, to say the very least! As alluded to above, the competency to file an action in a court of law is a fundamental requirement for entertaining and determining the action itself. And where the competence of the action is challenged by the Defendant, as in the instant case, the Plaintiff has the onus to establish that the action is competent. See QUO VADIS HOTELS AND RESTAURANTS VS. COMMISSIONER OF LANDS MIDWESTERN STATE (1973) 6 SC 7L; 82; HI-FLOW FARM IND VS. UNIBADAN (1993) 4 NWLR (Pt.290) 719 at 734 paragraphs B-C.

Having rightly (in my view) set aside the judgment in question, on the ground that it was obtained against a wrong defendant, the lower court ought to have, ex proprio motu, struck out the entire suit, without any further hesitation. My view is predicated upon the settled principle, that in the absence of proper parties (in this case the Appellant), the action becomes incompetent and improperly constituted. Thus, the trial court cannot have jurisdictional competence to entertain, talk less of determining, the action in question. In the circumstances, what the court ought to have done was to merely strike out the action without more, once it became obvious, on the face of the record, that it lacks jurisdictional competence to entertain the action.
See HI-FLOW FARM IND. VS. UNIBADAN (supra) at 733 paragraphs A-B; 737-738 paragraphs G-A.

Perhaps, I should, even at the risk of being repetitive, reiterate the trite and rather fundamental principle, to the effect that where a party is improperly sued, as in the present case, the only reasonable option open to the court is to strike out the action or suit. Period! This is the position of the law aptly enuciatiated in a plethora of authorities, including: AGUOCHA VS. AGUOCHA (2005) 1 NWLR (PT.906) 165; UBA PLC VS. SAMBA PETROLEUM CO. LTD (2002) 16 NWLR (Pt.793) 361; SANTA FE DRILLING (NIG) LTD VS. AWALA (1999) 6 NWLR (Pt.608) 623; LAWAL VS. YOUNAN (1961) 1 SCNRL 323; AKINDELE VS. ABIODUN (supra) at 392, A-B.
Undoubtedly, in the instant case, the jurisdictional competence of the lower court has been whittled down due to the absence of a competent and proper defendant. And the proper order that ought to have been made in the circumstance was simply to strike out the suit. Thus, granting the substitution of the (wrong) defendant (LEMNA NIGERIA LTD) with the Appellant is an outrageous, and rather incurable, irregularity. The irregularity in question is not only bad, but incurably bad. It is null, void and of no effect, whatsoever! Indeed, it’s trite, that you cannot put something on nothing and expect it to stand. Most certainly, it will collapse. So it has been remarkably expressed in the Latin Maxim: QUOD AB INITIO NON VALE INTRACTU TEMPORIS NON CONVALESCENT. I think it was most undisputably the legendary Lord Denning, MR that erudite and most fearless jurist of all time, who once aptly asserted, in his notorious erudite characteristics, that:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on no-thing and expect it to stay there. It will collapse ….
But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if Justice demands it but not otherwise.
Undoubtedly, the irregularity that grotesquely stares us in the face, in the instant case, is not a voidable one. It’s void ab initio. Thus, it’s incapable of being waived by the lower court. Undisputably, being an irregularity which is not only bad, but incurably bad, it is a nullity. As aptly asserted by the Apex court-
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication,
Per Bairamian, FJ, in MODUKOLU VS. NKEMDILIM (supra) at 348, paragraphs F-G.

The purported exercising of discretionary power, pursuant to Order 13 Rule 5 of the Lagos State High Court (Civil Procedure) Rules, 2004 by the court below is characterized by a wanton misapplication of discretion. That misapplication of discretionary power by the lower court has amounted to what the House of Lords once aptly termed the exercise of “Crooked cord of discretion” thus-
To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met-wand of the law.”
See PETTITT VS. PETTITT (1971) HC 777 at 808, per Lord Hodson. See also 0LUSOLA VS. TRUSTHOUSE PROPERTTES LTD (2010) 8 NWLR (pt.1195) 1 at 26 paragraphs A-E.
In the circumstance, in view of the foregoing far-reaching postulations, I am no longer imbued with any hesitation in upholding the Appellant’s agitation that the answer to issue No. 2 ought to be in the negative. Thus, the vexed issue No. 2 is hereby resolved in favour of the Appellant. There is no gainsaying the fact, that the appeal is meritorious, and it succeeds in part. And I so hold. The appeal is accordingly hereby allowed by me. However, due to the fundamental jurisdictional nature of the 2nd issue, an order for remittal of the case to the court below is out of the question. It is trite, that where an issue of jurisdiction is determined, to the effect that a court lacks the vires or jurisdictional competence to entertain an action (as in the instant case), the action in question is liable to be struck out. Afortiori, the court (the appellate court inclusive) lacks the competence to delve into any issue on the merits, or make any consequential order other than striking out the action.
Hence, the ruling of the court below, delivered on May 11, 2010 in suit No LD/168/2008, substituting the (original) defendant with the Appellant, is hereby set aside. Consequent upon which, the suit No. LD/168/2008 in question is hereby struck out, for being incompetent.
Parties shall bear their respective costs of litigation.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my noble Lord, Saulawa JCA, just delivered now. I agree with the reasoning and conclusion.
I endorse the position of my learned and erudite Lord that the suit, being incompetent, ought to have been struck out by the lower court. Akindele v. Abiodun (2009) 1 NWLR (pt.1152) 356, 381; Ifeacho v. Inland Med Com (Nig) Ltd (2000) 1 NWLR (pt.6390) 105; Expo Ltd v Potob Ent Ltd (1999) 2 NWLR (pt 591) 449. Where a party is, improperly, sued, as in the instant case, the court should strike out the suit. Lawal v Younan (1961) 1 SCNLR 323; Santo Fe Drilling (Nig) Ltd v Awala (1999) 6 NWLR (pt.508) 623; UBA Plc v Samba Petroleum Co. Ltd (2002) 16 NWLR (Pt.793) 361; Aguocho v Aguocho (2005) 1 NWIR (pt.906) 165.
For these, and the more detailed reasons in the leading judgment, I, too, shall enter an order setting aside the said ruling of the lower court of May 11, orders in the leading judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had a preview of the elaborate judgment of my learned brother, Saulawa, J.C.A., with which I agree and adopt as mine with this brief contribution.
The respondent initially sued LEMNA NIGERIA LIMITED at the court below. He later discovered the real defendant should be LEMNA ENERGY RESOURCES LIMITED. His application to amend the proceeding by replacing the proper defendant, LEMM ENERGY RESOURCES LIMITED, in place of the wrong defendant, LEMNA NIGERIA LIMITED, was granted by the court below, hence the appeal by LEMNA ENERGY RESOURCES LIMITED.
I have no doubt in my mind that the court below was in error to allow the said amendment or substitution. The issue before the court below was more than that of mistake or misdescription of the parties or a misnomer of the defendant to warrant the substitution. If it was a mere misnomer or misdescription of the parties, the order of substitution would have been appropriate – See Kalu v. Odili (1992) 6 SCNJ 76, Ajadi v. Ajibola (2004) 16 NWLR (pt.898) 91 at 188.

The issue was that of suing a wrong defendant, as it was clear that the original defendant and the substituted defendant are two distinct corporate bodies with separate legal personality. In the case of Government of Mid-West v. Mid-Motors Nig. Co. Ltd. (1977) 11 N.S.C.C. 429, it was held that to mistakenly sue a legal entity such as the Midwest Lines Limited instead of another legal entity such as the Government of Midwest State goes beyond a mere matter of misnomer.
Further, in Ayorinde and Ors. v. Oni and Anor. (2000) 3 NWLR (pt.809) 348 at 361, it was held inter alia that –
‘If there is no competent defendant on record, before the case went to trial and throughout the trial, certainly the action in respect thereof should be struck out on the ground that it was improperly constituted. Anything to the contrary will be absurd and unacceptable ….”
See also Ekpere and Ors. v. Aforije and Ors. (1972) 1 All NLR (pt 1) 220.
The only option open to the court below was to strike out the suit on ground of incompetence arising from the fact that the wrong defendant was sued by the respondent, as the plaintiff, at the court below.
I would agree with the lucid judgment of my learned brother, Saulawa, J.C.A., that the appeal has merit on this issue. I too would allow the appeal and set aside the ruling of the court below replacing the original defendant, LEMM NIGERIA LIMITED with the present appellant, LEMNA ENERGY RESOURCES LIMITED, as defendant at the court below. Accordingly, I issue an order striking out the suit at the court below. Parties to bear their costs.

Appearances

C. V. C. Ihekweazu with: A. C. Eze and T. A. MicahFor Appellant

AND

J. O. ShanuFor Respondent