HASSAN & ORS v. QUEMECS (NIG) LTD & ORS (2022)

HASSAN & ORS v. QUEMECS (NIG) LTD & ORS

(2022)LCN/16788(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, August 19, 2022

CA/YL/25/2017

Before Our Lordships

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

1. JOHN K. HASSAN 2. GABRIEL DAMISA 3. DAVID AUDU (Suing For Themselves And On Behalf 175 Victims Of Kurmi Local Government) APPELANT(S)

And

1. QUEMECS NIGERIA LIMITED 2. THE MINISTRY OF WORKS LAND AND SURVEY 3. TARABA STATE GOVERNMENT 4. THE ATTORNEY GENERAL, TARABA STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN THE ISSUE OF JURISDICTION CAN BE RAISED

This Court and the Supreme Court have held on number of occasions that a trial conducted without jurisdiction is a waste of precious judicial time. The whole proceeding no matter how well conducted and decided would ultimately be declared a nullity. That explains why the issue of jurisdiction can be raised and heard at any time during trial, on Appeal, or at the Supreme Court for the first time. See N. N. P. C. Vs. SELE (2013) 53 NSCQR Pt. III Per B. Rhodes-Vivour JSC at pages 988 – 989. Also ORKER JEV Vs. IYORTYOM (2014) 58 NSCQR Pt. II Per J. I. Okoro, JSC at page 1154. PER ABUBAKAR, J.C.A.

THE POSITION OF LAW ON THE DUTY OF CARE ON COUNSELS

The Apex Court while explaining the duty of care on counsel and when litigant may be penalized for carelessness of Counsel held thus:-
“This case brings to focus the need for legal practitioners to be very careful in handling client’s case right from the drafting of the claims to the actual conduct of the proceedings in the Courts. In the instant case, though learned Counsel for the Appellant pleaded facts that could ground a cause of action arising from the personal injury under the law of Tort, no specific claims was made in the statement of claim for same, the reliefs being simply for breach of contract of employment. This is not a case where the sins of Counsel are not to be visited on the party; it is simply a case of not awarding to a party what he never asked for, it is also a case of not allowing Counsel to hide under the principle of not visiting the sins of Counsel on the party to shy away from his professional responsibilities to his client in the conduct of his case. The standard of legal practice in this country is very high level or raise it higher, they are definitely not to lower it under any guise.” PER ABUBAKAR, J.C.A.

MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Taraba State, sitting in Jalingo, delivered on 4th day of October, 2016, by his Lordship Hon. Justice I. M. Sambo.

The Appellants were the Plaintiffs at the High Court of Justice of Taraba State hereinafter referred to as the trial Court. While the Respondents were the Defendant at the trial Court. The Appellants as Plaintiffs approached the trial Court via a Writ of Summons for the grant of the following reliefs:-
1. A declaration that the mass destruction of the economic trees of the Plaintiffs and houses marked for demolition without compensation amounts to a gross violation of the Plaintiffs’ fundamental Constitutional rights to own private properties.
2. The sum of N800,000,000.00 (Eight Hundred Million Naira) only being compensation for the level of destruction done to the Plaintiffs by the Defendants in the guise of constructing Marraraba Baissa-Abong Road.
3. The sum of N20,000,000.00 (Twenty Million Naira) only, general damages for the destruction that threw the victims into untold hardship and hopeless scenario.
4. The cost for this action.

At the conclusion of the case, the trial Court dismissed the case of the Plaintiffs/Appellants. Not satisfied with the said judgment, the Appellants via a notice of appeal dated 15th December, 2016, filed on the 20th December, 2016, containing 4 grounds of appeal, appealed to this Court.

Via a Motion on Notice dated the 11th day of September, 2020, the Appellant sought the leave of this Court to amended their original Notice of Appeal filed on the 20th day of October, 2015 and same was granted as prayed.

STATEMENT OF RELEVANT FACTS
The facts germane to this case is that the Appellants instituted this case in a representative capacity representing 175 indigenes of Kurmi Local Government Area of Taraba State whose farmlands, economics trees and houses were destroyed by the 1st Respondent while constructing Marrara Baissa-Abong road on the instruction and authority of the 2nd, 3rd and 4th respondents without service of acquisition notice, payment of compensation or adequate compensation to the said land owners.

The 2nd to 4th Respondents paid compensation to selected influential members of the community but the majority of the poor landowners who were the victims of the destruction were never paid any compensation.

The complaints of the Appellants to the 2nd to 4th Respondents fell on deaf ears. Thereafter, they filed the case at the trial Court.

The trial Court found as a fact that some of the Appellants were never paid compensation even though their lands were affected and assessed yet the Court proceeded to dismiss their case.

The Appellants filed their amended Brief of Argument on 7/2/2022 settled by Martin Milkman and deemed on 28/2/2022 wherein two (2) issues were raised for determination of this Court as follows:-
(1) Whether the proceedings and the judgment of the trial Court commenced by Motion Exparte No: TRSW/5M/2011 was done without jurisdiction and thereto a nullity having not initiated by due process of law? (Distilled from ground 1 of the Amended Notice of Appeal).
(2) Whether the judgment of the trial Court dismissing the case of the Appellants without considering the fact that the acquisition of the appellant’s landed properties was not done in strict compliance with the law, is perverse and a clear breach of the Appellants right to fair hearing. (Distilled from grounds 2, 3, 4 and 5).

On his part, the 1st Respondent’s amended Brief of Argument was settled by M. Oleka Esq., and filed on 25/03/2022 wherein he adopted the two issues raised by the Appellants. He also raised a Preliminary Objection in his Brief of Argument challenging the competency of the Appeal. See paragraphs 3.0 to 5.11 pages 4 – 12. However, it is noted by this Court that there is no separate Notice of Preliminary Objection filed by the Counsel. Moreover, on the day of the hearing of this Appeal i.e. on 7/6/2022 the Respondent’s counsel failed to put up appearance in Court even though he was aware of the date as there is proof of service on him. Consequently, the preliminary objection was not moved and this Court deemed it to have been abandoned in accordance with the law.

On their own part, the 2nd – 4th Respondents’ amended brief of argument was settled by A. D. Mustapha Esq., a principal State Counsel, Ministry of Justice Jalingo and filed on 25/3/2022. He raised two issues for determination of this Appeal to wit:-

(1) “Whether the Appellants can be allowed by this Court to benefit from the illegality they procured or perpetrated before the trial Court by their deliberate refused to initiate their action in accordance with the law. (Distilled ground one of the Appellants Amended Notice of Appeal).
(2) “Whether having regard to pleadings and evidence on record, the trial Court was right in dismissing the Appellants claims for failure to prove same as required by law? (Distilled from grounds 1, 2, 3 and 4 of the Appellants Amended Notice of Appeal).”

It is noted that the issues formulated by the parties in this appeal are similar though differently in worded I shall adopt the two issues raised by the Appellants’ Counsel as follows:-
(1) Whether the proceedings and the judgment of the trial Court commenced by Motion Exparte No: TRSJ/5M/2011 was done without jurisdiction and thereto a nullity having not initiated by due process of law? (Distilled from ground 1 of the Amended Notice of Appeal).
(2) Whether the judgment of the trial Court dismissing the case of the Appellants without considering the fact that the acquisition of the appellant’s landed properties was not done in strict compliance with the law, is perverse and a clear breach of the Appellants’ right to fair hearing. (Distilled from grounds 2, 3, 4 and 5).

SUBMISSIONS OF COUNSEL ON ISSUE ONE
The learned Counsel to the Appellants submit that a Court of law is said to have the jurisdiction and competency to adjudicate on a matter when:-
1. It is properly constituted as regards numbers and qualification of the members of the bench and no members 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 fulfilment of any condition precedent to the exercise of jurisdiction.
See the cases of MADUKOLU & ORS Vs. NKEMDELIM & ORS (1962) All NLR 587, ENYIBROS FOODS PROCESSING COMPANY LIMITED & ANOR Vs. NIGERIAN DEPOSIT INSURANCE CORPORATION & ANOR (2007) LPELR 1149 (SC) Pages 25 – 26, PARAGRAPHS G – C, ONI Vs. CADBURY (NIG) PLC (2016) (SC) Pages 26 – 27, PARAGRAPHS D – A, SARAKI Vs. FRN (2016) LPELR 40013 (SC) Pages 47 – 48, PARAGRAPHS E – B, CHEMIRON (INTL) LTD Vs. STABILINI VISINONI LTD 92018) LPELR 44353 (SC) Pages 24 – 25, PARAGRAPHS A – B, ZUBAIR Vs. KOLAWOLE (2019) 46928 (SC) Pages 24 – 25, PARAGRAPHS E – B and IHIM Vs. MADUAGWU & ANOR. (2021) LPELR 53906 (SC) Pages 39, PARAGRPHAS B – F.

He argued that a meticulous look at the record of appeal before this Court will reveal that the suit upon which this appeal is anchored borders on compulsory acquisition of land as well as inadequate compensation and yet it was commenced by Motion-Exparte. At pages 1 – 7 of the Record of Appeal, an ex-parte application was filed for leave to commence the suit in a representative capacity. The Writ of Summons and Statement of claim were attached and marked as Exhibits “A” and “A1”. The Exhibits are attached at pages 17 – 32 of the record of appeal. The Motions Ex-parte was given a Motion No: TRSW/5M/2011.

He submit that this Court will notice at page 7 of the Record of Appeal after the trial Court granted the application and adjourned the matter for hearing and ordered that hearing notice be served on the other parties.

A perusal of the entire Record of Appeal will reveal that there is nowhere a separate Writ of Summons and Statement of Claim were ever assessed and filed to commence this Suit. That explains why there is no suit number allocated to this case but a motion number.

In view of the above, he submit that the suit was never commenced by due process of law to activate the jurisdiction of the trial Court to hear and determine the case on the merit.

To validly commence a suit, the suit must be commenced by the originating process provided the law. The originating processes known and accepted by the Taraba State High Court (Civil Procedure) Rules, 2011, are clearly spelt out in Order 1 Rule 1 and Rule 11 of the Taraba State High Court (Civil Procedure) Rules, 2011. The above Rules provides thus:-
Order 1 Rule 1
“Subject to the provisions of any enactment, civil proceedings summons, originating motion or petition, as hereinafter provided:
Rule 11
“Proceedings may be commenced by originating motion or petition whereby these rules or under any written law the proceedings in question begun but not otherwise.”

From the foregoing provisions, it is unambiguously clear that the only recognized mode of commencing any legal proceedings before the trial Court is by Writ of Summons, Originating Summons, Originating Motion and Petition.

The Supreme Court explained what an “Originating Process” is in the case of ALFA Vs. ATTAI & ORS (2017) LPELR 42579 (SC) 18, PARAGRAPHS B – F, wherein the Apex Court Per Nweze, JSC, held thus:
“Indeed, there are four broad modes of commencing civil suits namely, by (a) writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three methods are prescribed by the Rules of Courts, viz, the Rules of Court in relation to Writ of Summons; Originating Summons and Originating Motions. The latter, Originating Motions, could be categorized into two broad types, (i) Originating Motions for prerogative orders and (ii) Originating Motions under the Fundamental Rights (Enforcement) Rules, 1999 (made pursuant to the authorities that are inherent in the Chief Justice of Nigeria). Lastly, Petitions as modes suits pursuant to express statutory provisions as shown above. Each of these is referred to as an Originating Process.”

The Counsel argued that a perusal of the Record of Appeal as highlighted above, will reveal that this suit was commenced by motion Ex-parte No. TRSW/5M/2011. It then means that this application is not commenced by any originating process accepted by law for commencing such proceedings.

Going by the above provisions it is clear that Motion Ex-parte is not one of the procedures provided for the commencement of any substantive case before the trial Court.

Order 55 Rule 5 of Taraba State High Court (Civil) Procedure) Rules 2011 states as follows:
“A document shall not be filed unless it has endorsed on it the name and number of the cause, the dates of filing and whether filed by plaintiff or defendant; and on being filed such endorsement shall be initiated by the Registrar.”
Order 3 Rule 1(1) of the rules of the trial Court provides thus:
“Where in beginning or purporting to begin any proceedings there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullity the proceedings.”

The import of the above provision is that where there is a failure to comply with the Rule of the trial Court and the failure relates to the proceedings, then the failure will nullify it. This provision is in line with the Supreme Court’s pronouncement to the effect that Court adjudicates only on matters and procedure and not otherwise. See the case of GAMBARI Vs. BUHARI (2009) All FWLR (Pt 479) 458 at 471 R. 8.

The Counsel submits, that wherein a party fails to comply with the stipulated procedure for commencing a suit, the effect is that the party has failed to institute a competent action. Any proceeding thereon is of no legal effect. See the case of MUDASIRU Vs. ABDULLAHI (2011) All FWLR (Pt. 574) 129 at 151 Paragraphs D – E, wherein the Court of Appeal held thus:
“Where a party fails to comply with the stipulated procedure for commencing a suit, the effect is that, the party has failed to institute a competent action. Any proceedings therein is of no legal effect because, the proceedings have not been instituted in accordance with the law.”

In the same vein the Supreme Court in the case of DINGYADI Vs. I.N.E.C. (2010) All FWLR (Pt. 550) 1204 at 1233 paragraphs B – D, held thus:
“Secondly, although it is a Constitutional right of the Appellant to decide not to proceed against any of the Respondents, as submitted by Mr. Tarfa SAN, it must be appreciated that where the exercise of right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such a rule has been waived, then, that rule must be complied with. Court rules are meant to be obeyed: Ezegbu Vs. FATB Ltd (1992) 1 NWLR (Pt. 216) 643, C. C. B. (Nig) Plc Vs. A-G Anambra State (1992) 8 NWLR (Pt. 261) 528. Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.”

The law is that where a law provides for a particular procedure, no other procedure can validly be used. Order 1 Rule 11 of the Rules of the trial Court is very clear and direct that “Proceedings may be commenced by originating motion or petition whereby these rules or under any written law the proceedings in question are required or authorized to be so begun but not otherwise”

By the use of the words “not otherwise” the rule is so emphatic that no other method is accepted by the Court apart from the methods specifically mentioned.

It is argued that going by the provisions of the Rules of the trial Court, Motion on Notice and Motion Ex-parte are only provided for bringing interlocutory applications or for Judicial reviews but not for commencing or originating a fresh case. See Order 10 Rules 2, 6 7 and Order 46 Rules 3(1), (2) and (3) of the Taraba State High Court (Civil Procedures) Rules.

The Registry of the trial Court has even simplified the work by clearly telling this Court that what was before the trial Court was only a motion not a substantive case that is why it does not have Suit Number but motion number.

It is worth to note that in this, the failure to properly activate the jurisdiction of the trial Court was occasioned by the combine mistake of the learned trial Judge himself and that of the Counsel to the Appellants. At page 7 of the Record of Appeal, when the learned trial Judge granted the motion ex-parte he proceeded to order the case to be adjourned for hearing.

The learned Counsel submit that the failure to file a writ of summons and the failure to issue and serve the writ of Summons is fundamental and robs the trial Court of the jurisdiction to hear and determine the matter. In the case of UNITED BANK FOR AFRICA PLC. Vs. MOHAMMED (2017) All FWLR (Pt. 649) Page 1117, Paragraphs A – E, R. 5, the Court held thus:-
“Issuance and service of writ of summons is the foundation of the proceedings and very fundamental to the assumption of jurisdiction by a Court of law. If issuance and service of writ is basically and fundamentally to entertain same, in the instant case, the writ was served on the Appellants without the required leave of Court being obtained, then the trial Court erred by assuming jurisdiction to determine the matter.”

He submit further that where a Court’s jurisdiction has not been activated, the entire proceedings no matter how well and brilliantly done is a nullity. See MACMILLAN NIGERIA PUBLISHERS LIMTED Vs. CHINEDU (2021) LPELR 55500 (CA) Pages 12 – 13, Paragraph A, KANYA Vs. KANYA (2021) LPELR 55465 (CA) Pages 6 – 7, Paragraphs E – B, KOLO Vs. ABUBAKAR (2021) LPELR 55466 Pages 6 – 7, paragraphs D – B and ABDULHAMID Vs. KOLO (2021) LPELR 55463 (CA) Pages 6 – 7, Paragraphs E – B.

He urged this Court to resolve this issue one in favour of the Appellants, allow the Appeal and remit same to be properly filed and tried by another Judge.

In reaction, the learned Counsel to the 1st Respondent urged this Court to resolve issue one against the Appellants, it is not true that the Appellants did not properly file a writ and the accompanying statement of claim in the Court below.

A letter by the first judge that handled the matter which can be found at page 11 of the Record of Appeal will clearly show that the Appellants filed other processes after the grant of the motion ex-parte to sue in a representative capacity. The motion for joinder, its ruling and other processes including the Appellants’ separately filed writ of summons and statement of claim cannot be found in the said Record of proceeding.

The learned Counsel to the 1st Respondent draw the attention of this Court to duplication of Exhibits in the Record of Appeal which evidence that the record of appeal is defective.
1. “Payment Certificate of Aboki Sabo” was admitted into evidence as Exhibit ‘D’ and ‘D1’ at page 343 of the record.
2. “The Contract Agreement between Taraba State Government and Quemecs Nig Ltd.” Was admitted as Exhibit ‘D2’ at page 347.
3. The “Report of Payment Compensation of the extinguished properly Right along Mararraba-Baissa Abong Road” appears as Exhibit ’D’ again at page 367.
4. Also “Assessment of the House Improvement Along Mararraba-Baissa Abong Road under construction summary No. 75/MLS/LAU/10442/11/17 dated 30th December, 2008” appear as Exhibit ‘D’ at page 368.
5. Furthermore, “Omission list of 1st Phase of payment Voucher dated 15th February, 2021” is seen as Exhibit ‘D2’ again at page 369.

And so many other defects in the record too numerous to mention.

This observation was made before this Court on the 26th February, 2018 whereof this Court ordered the Appellants to regularize the said record which order is yet to be complied with.

Also, a look at the proceeding of the lower Court particularly at page 15 of the printed record will show that the matter started de novo before another judge.

The Counsel refer this Court to the proceeding of the lower Court at page 33 of the printed record. It shows that apart from the motion ex-parte, other processes were filed by the Appellants at the Court below. According to learned Andikan, Counsel to the Appellants at the Court below at page 33.
“The case is slated for further mentioned. The Defendants are yet to be served with the Deposition of the statement on oath. In view of this we are asking for a short adjournment.”

It is submitted that the most important part of the printed record that deals with issue 1 of the Appellants Amended Notice of Appeal can be found at pages 201 to 211. In those pages, the trial Court granted the Plaintiffs’ (now Appellants) motion to amend their originating processes when he held at page 211 that “… the application for amendment of the Applicants/Plaintiffs originating process and pleadings is hereby granted as prayed. Secondly, all the processes accompanying the Applicant (sic) are deemed as properly filed and served.”

In First Zenith Holding Vs. HFP (Nig) Ltd (Pt. 881) page 1175 para C R. 2, it was held that:
“…there was no dispute and still there is none, that the ruling of 4th November, 2002 was delivered by a Court of competent jurisdiction whose decision binds the parties to the case and remains extant until properly set aside by another decision of a Court of competent jurisdiction…”

In this appeal, the order of the lower Court deeming the Appellant process as being properly filed and served remains extant and valid.

He submit that this order of the trial Court made on the 14th February, 2013 regularized any perceived irregularity in the appellants originating process and urge this Court to so hold.

Assuming but not conceding to the fact that the Appellants’ writ of summons were not properly filed before the lower Court, it appears that the Appellants have conceded to the fact there is nothing before this Court to be remitted to any other Court for retrial.

In UBN Vs. SANNI (2019) All FWLR (Pt. 983) Page 114 Paras H – B R. 1, it was held thus:-
“…but, there is a whole world of difference between procedural irregularity and the substantive jurisdiction of a Court to hear a matter. Procedural irregularity does not qualify as an issue of jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceeding a nullity. An irregularity in the exercise of jurisdiction should, and must not be confused with total lack of jurisdiction which takes cognizance of the general meaning of the word “jurisdiction” as the authority which a Court has to decides matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction.
…it is matters of substantive jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceeding a nullity, not matters of procedural irregularity. The Appellant want to benefit from their irregularity.”

Assuming but not conceding that the Appellants did not commence their case with a valid writ, it is argued that this Court cannot remit an invalid process for retrial. See GARBA Vs. UMMUANI (2014) All FWLR (Pt. 722) 1715 at 1719 R. 3.
“Any process of Court that has not been duly filed, assessed and paid for ceases to be a valid process. After all, it is the filling that breathes life into a Court process, except where the fee is waived or exempted as in processes filed by government and government departments.”

The Appellants having conceded to the fact that they did not file any writ at the lower Court, what then will this Court remit to the lower Court for retrial?

According to Section 168 (1) of the Evidence Act 2011 “when any judicial or official act is done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” See Zakari Vs. Muhammad (2018) All FWLR (Pt. 964) Page 1969 Paras. B – G R. 9 is the authority that:
“A litigant may submit to a procedural jurisdiction of the Court, but no litigant can confer jurisdiction where a statute or the Constitution says that the Court has no jurisdiction. Thus, while substantive jurisdiction of the Court cannot be waived, a party can waive a matter relating to procedural jurisdiction of the Court.”

The Counsel submits that the Appellants at the Court below submitted to the procedure initiated by them at the Court below. They cannot be seen to turn around to take advantage of same.

It was held in Ardo Vs. INEC (2018) All FWLR (Pt. 918) page 73 Para. E- G R. 5; thus;
“Where an action was commenced by an irregular procedure and Defendant took step to participate in the proceedings, he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity which he himself accepted, waived or acquiesced.”

In the present appeal, it is the Appellant that chose the way they commenced their action, they have come in this appeal to appeal against their own wrong. This will amount to a party benefiting from his own wrong.

In reaction, the 2nd – 4th Respondents submit that it is settled that, a learned Counsel should always regard himself as an officer of the Court, which is in the hallowed temple of Justice. Counsel is a minister in the holy temple of Justice and his conduct must always be above board. Counsel should always endeavor to assist the Court instead of misleading it. He is also not expected to frustrate expeditious disposal of causes and matters in Court and should not be engaged or involved, directly in sharp practice. See the case of BAWA Vs. BALARABE (1999) 6 NWLR (Pt. 605) 51, KWAPTOE Vs. TSENYIL (1999) 4 NWLR (Pt. 600) 571 and PARE ROBERTO NIGERIA LTD. Vs. A. A ANI (2000) 13 NWLR P. 522 at 535.

The Counsel argued that it can be gleaned from the record of appeal that the Appellants who were the plaintiffs before the trial Court have filed an application seeking the leave of the Court to commence their action against the Respondents in a representative capacity which application was granted by the Court.

A claim and meticulous perusal of page 33 of the Record of Appeal will reveal that the Appellants’ Counsel Z. ANDEKAN, ESQ., misled the trial Court that the case was slated for further mention and sought for an adjournment in order to serve the Respondents who were the Defendants before the trial Court with the written statement on oath of their witnesses.

It is pertinent to recall that during the pendency of this appeal, the Appellants sought the leave of this Court to amend their original Notice of Appeal via Notice of Motion dated and filed on the 11th day of September, 2020, in order to attribute the deliberate failure of their Counsel to field the clean copies of the writ of summons and statement of claim to the learned trial Judge who adjourned the matter for hearing. The Counsel concede that the trial Court was wrong to have adjourned the matter for hearing but same was done based on the application made by the Counsel to the Appellants. It should be noted that the appellants’ Counsel who invited the trial Court to adjourn the matter did not take any step to regularize this anomaly in the course of hearing the matter or draw the attention of the learned trial Judge to the effect that the matter was wrongly adjourned in the absence of any valid process filed by the Appellants. In the case of ATIVIE Vs. KABELMETAL (NIG). LTD (2008) 10 NWLR, (Pt. 1095) P. 399 at 407 Para. 10. The Apex Court while explaining the duty of care on counsel and when litigant may be penalized for carelessness of Counsel held thus:-
“This case brings to focus the need for legal practitioners to be very careful in handling client’s case right from the drafting of the claims to the actual conduct of the proceedings in the Courts. In the instant case, though learned Counsel for the Appellant pleaded facts that could ground a cause of action arising from the personal injury under the law of Tort, no specific claims was made in the statement of claim for same, the reliefs being simply for breach of contract of employment. This is not a case where the sins of Counsel are not to be visited on the party; it is simply a case of not awarding to a party what he never asked for, it is also a case of not allowing Counsel to hide under the principle of not visiting the sins of Counsel on the party to shy away from his professional responsibilities to his client in the conduct of his case. The standard of legal practice in this country is very high level or raise it higher, they are definitely not to lower it under any guise.”

Assuming without conceding that the Appellant’s failure to filed a separate writ of summons and statement of claim was done inadvertently by their Counsel, it is argued that the Appellants has ample opportunity from the date of filing of the said motion in 2011 to the date when the matter was finally heard and determined by the trial Court on the 10th day of October, 2016, to do the needful by filing the necessary processes as Counsel is duty bound to devote his attention, energy and expertise to the service of his client in a matter consistent with the best interest of the client. The Appellants having failed to file the said processes cannot be heard to complain. The law is that Equity aids the vigilant and not the indolent. See CRUTECH Vs. OBETEN (2011 15 NWLR (Pt. 1271 Pg. 588 at 598. He urge this Court not to remit this matter for retrial and resolve this issue in favour of the 2nd – 4th Respondents.

RESOLUTION OF ISSUE ONE
The contention of the Appellants is that the proceedings and judgment of the trial Court commenced by Motion Exparte was done without jurisdiction and therefore a nullity having not initiated by due process of law. The learned Counsel to the Appellants argued that a look at the Record of Appeal will reveal that the suit upon which this appeal is anchored borders on compulsory acquisition of land as well as inadequate compensation and yet it was commended by Motion-Ex-parte. See pages 1 – 7 and 17 – 32 of the Record of Appeal. The Motion Ex-parte was given a Motion No: TRSW/5M/2011.

This Court and the Supreme Court have held on number of occasions that a trial conducted without jurisdiction is a waste of precious judicial time. The whole proceeding no matter how well conducted and decided would ultimately be declared a nullity. That explains why the issue of jurisdiction can be raised and heard at any time during trial, on Appeal, or at the Supreme Court for the first time. See N. N. P. C. Vs. SELE (2013) 53 NSCQR Pt. III Per B. Rhodes-Vivour JSC at pages 988 – 989. Also ORKER JEV Vs. IYORTYOM (2014) 58 NSCQR Pt. II Per J. I. Okoro, JSC at page 1154.

From the records, this appeal emanated from the judgment of the High Court of Justice of Taraba State sitting in Jalingo. To properly commence a suit in that jurisdiction, the originating process known and accepted by the Taraba State High Court (Civil Procedure) Rules 2011, are spelt out in Order 1 Rules I and II of the said Rules which provides as follow:-
“Subject to the provisions of any enactment, civil proceedings summons, originating motion or petition, as hereinafter provided; proceedings may commenced by originating motion or petition whereby these Rules or under any written law the proceedings in question are required or authorised to be so begun but not otherwise.”
As rightly pointed out by the learned Counsel to the Appellants, Motion on Notice and Motion Ex-parte are only provided for bringing interlocutory applications or for judicial reviews but not for commencing or originating a fresh case. See Order 10 Rules 2, 6, 7 and Order 46 Rules 3(1), (2) and (3) of the Taraba State High Court (Civil Procedure Rules) 2011.
A careful perusal of the Record of Appeal will reveal that this Suit was commenced by Motion Ex-parte No: TRSW/5M/2011 which means it is not commenced by any originating process accepted by the law. See Order 3 Rules 1(1) of the Rules of the trial Court which provides as follows:-
“Wherein beginning or purporting to begin any proceedings there has by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, the failure shall nullity the proceedings.”
In the light of the above authorities, I am of the view that the proceedings and judgment of the lower Court having not commenced/initiated by due process of law was done without jurisdiction and consequently a nullity. See MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341.

This issue one relating to jurisdiction of the lower Court has been resolved in favour of the Appellants. However, this Court is not happy with the conduct of the learned Counsel to the Appellants, for his failure to file a separate writ of summons and statement of claim from the date of filing his motion in 2011 to the date when the matter was finally heard and determined by the lower Court. He had ample opportunity to do the needful as he is duty bound to devote his attention, energy and expertise to the service of his client. He refused or neglected to draw the attention of the lower Court to this issue till when judgment was delivered against his client and then filed this appeal. This is very unbecoming and unfortunate, as counsels are ministers in the temple of Justice.

Be that as it may, since issue one relating to jurisdiction is resolved in favour of the Appellants, it would amount to a waste of precious judicial time for this Court to go ahead and treat issue 2 dealing with right of fair hearing as it will be an exercise in futility. See ODEY Vs. ALAGA (2021) Pt. 1792 13 NWLR R II. This appeal is allowed and the judgment of the lower Court in Suit No: TRSJ/5M/2011 delivered on 4th day of October, 2016 is hereby set aside. The case file should be remitted back to the Chief Judge of Taraba State High Court for reassignment to a different judge for retrial or to be re-heard.

CHIDI NWAOMA UWA, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, MOHAMMED LAWAL ABUBAKAR JCA, and I entirely agree with his reasoning and conclusions.

Consequently, I also allowed the appeal and set aside the judgment of the lower Court delivered on the 4th October, 2016. The case file should be remitted back to the Chief Judge of Taraba State High Court for re-assignment to another judge for trial de novo.