MOBIL PRODUCING NIGERIA UNLIMITED v. CHIEF BENJAMIN PEPPLE (2019)

MOBIL PRODUCING NIGERIA UNLIMITED v. CHIEF BENJAMIN PEPPLE

(2019)LCN/13086(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/C/79/2018

JUSTICES

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

MOBIL PRODUCING NIGERIA UNLIMITED Appellant(s)

AND

CHIEF BENJAMIN PEPPLE Respondent(s)

RATIO

WHETHER OR NOT THE COURT MUST RESOLVE ALL ISSUES PRESENTED BY PARTIES FOR DETERMINATON

It is trite that a Court must resolve all issues presented for determination by the parties. Failure to do so is a breach of the right to fair hearing. SeeHONEY WELL FLOUR MILLS PLC VS. ECOBANK (2018) LPELR-45127(SC) wherein the apex Court held as follows:
“It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7UP BOTTLING COMPANY VS. ABIOLA SONS BOTTLING COMPANY LTD. (2001) 6 SC 73.
It is therefore an imperative for a trial and intermediate Court to consider all issues in keeping with the principle of the fair hearing. A Court is expected to pronounce on all issues one or the other. The principle established by the twin pillars of Natural justice and fair hearing is to hear both sides and in doing so the Court must pronounce on an all issues one way or the other. The apex Court in a plethora cases emphasized that the Court should say something on the issue and not just gloss over it once the issue is properly presented for determination; the Court cannot maintain a dignified silence. PER NIMPAR, J.C.A.

CONSEQUENCE OF AN IMPROPERLY COMMENCED PROCEEDINGS

In law, the consequence of an improperly commenced proceedings or process filed improperly is that it renders such a proceeding liable to be struck out in limine not withstanding how meritorious the case of the party in breach and so adversely affected would have been if considered on the merit. This is so because one cannot put something on nothing and expect it to stand. It must surely crumble. Thus every proceeding founded on such an improperly filed Notice of Appeal would also be improper and indeed incompetent. See UAC VS. Mcfoy (1962) AC 152 @ p. 160. See also MCFOY VS. UAC (1961) 3 All ER 1169 @ p. 1172; SENATOR YAKI VS. SENATOR BAGUDU (supra); MADUKOLU VS. NKEMDILIM (1962) SCNJ 341; NIGERIAN RAILWAY CORPORATION & ORS VS. AKINBODE & ORS (2007) LPELR 4603 (CA). PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court sitting at Uyo delivered on the 25th January, 2018 by Hon. Justice F.O. Riman wherein the preliminary Objection taken by the Appellant challenging the jurisdiction of the Court below was over ruled. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 25th January, 2018 setting out 4 grounds of appeal.

The Respondent initiated a suit in a representative capacity against the Appellant and by its statement of claim, sought the following reliefs:
WHEREFOR we the Plaintiffs claim against the Defendant:
1. A total sum of N24,395,918,319.00K (Twenty Four Billion Three Hundred and Ninety five Million, Nine Hundred and Eighteen Thousand, Three Hundred and Nineteen naira) only, being damages and compensation payable to the Plaintiff by the Defendant and compensations are broken down as follows:
A. SPECIAL AND QUANTITATIVE LOSS
DISTURBANCE AND INJURIOUS AFFECTION
i. Loss of fishing rights, static ponds = N444,382,761.00k

ii. Fishing traps/fences/hook lines =

N414,610.00k
iii. Fishing nets = N2,521,022,954.00k
iv. Economic trees = N2,521,022,954.00k
v. Snail picking = N2,417,149,305.00k
vi. Land, swamps and creeks = N16,345,552.00k
vii. General damages @ 50% = N2,697,657,591.00k
TOTAL COMPENSATION = N8,092,972,773.00k
B. EXEMPLARY AND AGRAVATED
DAMAGES = N16,185,945,546.06k
C. COST OF LITIGATION = N117,000,000.00k
GRAND TOTAL = N24,395,918,319.00k
i.e. ($162,639,455.45C) at N150.00 per Dollar.
2. An order that the said compensation/damages be paid to the Plaintiffs on computation taking into account inflation over time from the date of filing this suit.
3. And for such further or other order(s) as this honourable Court may deem fit to make in the circumstances.

Upon being served with the originating processes, the Appellant entered a conditional appearance and filed a preliminary objection wherein it sought for the following prayers:
i. AN ORDER striking out the Plaintiff/Respondent?s suit in limine;
And for such further Order(s) as the Honourable Court may deem fit to make in the circumstances.

The grounds upon which

the application is based are thus:
a. The writ of summons upon which this suit was commenced is incompetent and liable to be dismissed/struck out, same not bearing the mandatory endorsement of the Registrar of the Federal High Court as contemplated by the Rules of the Court evidencing renewal of the writ.
b. The Originating process upon which this suit was commenced is incompetent and incapable of invoking the jurisdiction of the Court same not bearing the seal of Counsel to the Plaintiff as required by law;
c. The Plaintiff?s claims for special damages are the basis upon which this suit was instituted and same was not particularized in the Plaintiff?s pleadings as required by law;
d. The Plaintiff having failed to particularize the special damages in its Statement of Claim as held by the Supreme Court in NWANJI VS. COASTAL SERVICES (NIG) LTD. (2004) 11 NWLR (PT. 885) has no reliefs capable of being granted before the Court and thereby robs the Court of the jurisdictional vires to entertain the suit;
?e. The failure of the plaintiff to particularize the claim for special damages amounts to a breach of defendant/

Applicant?s right to fair hearing;
f. The Plaintiff?s cause of action premised on negligence is not supported by detailed and sufficient particulars as provided for by the Rules of Court and extant laws;
g. This suit as presently constituted was not commenced by due process of law and upon fulfillment of condition precedent for the exercise of the jurisdiction of the Court.
AND ALSO TAKE FURTHER NOTICE that the Defendant shall at the hearing of this application rely on all documents filed by the parties in this suit.?

The preliminary objection was contested and after a careful consideration, the court below dismissed the objection, dissatisfied with the decision, the Appellant filed a Notice of Appeal dated and filed on the 25th January, 2018. The Appellant filed its Brief of Arguments dated 27th day of March, 2018 on the 4th April, 2018. It was settled by Okechukwu Ekweanya, Esq., and it distilled 3 issues for determination namely:
a. Whether the lower Court ought not to have declined jurisdiction to entertain the Respondent?s suit in view of the manifest alterations and incurable defects on the

Respondent?s Writ of Summons dated November 28, 2016.
b. Whether from the circumstances of the case, the failure of the Respondent to provide the particulars of special damages did not inhibit the Appellant?s ability to defend the suit, thereby denying the Appellant a right to fair hearing.
c. Whether the lower Court in Ruling on the Appellant?s Motion on Notice dated June, 29, 2017 ought not to have considered the issues raised in the Appellant?s Reply on Points of Law dated November 7, 2017.

The Respondent?s Brief of arguments settled by Eugene O. Odey Esq., is dated 25th September, 2018 filed on the 26th September, 2018 but deemed on the 27th November, 2018. It donated 3 issues for determination thus:
1. Whether the lower Court was right in dismissing the Appellant?s preliminary objection challenging its jurisdiction to determine this suit.
2. Whether the lower Court was right not to determine the material issues in the substantive suit during interlocutory stage.
3. Whether the lower Court has a mandatory duty to consider and determine all material issues properly raised

before it.

PRELIMINARY OBJECTION:
The Respondent incorporated a Preliminary objection in its Respondent?s brief in which the Notice said thus:
?Notice is hereby given that before or at the hearing of this appeal, the Respondent will raise a preliminary objection to the competence of this appeal and pray that the same should be stuck out and or be dismissed on the following grounds, namely:
a. That the Appellant failed to seek and obtain leave of the Court below or this Honourable Court before filing this interlocutory appeal by their Notice of Appeal containing 4 (four) grounds of appeal which raises issues of fact or mixed law and facts.
b. That the grounds of appeal relied upon by the Appellant is unduly argumentative and based on technicality, narrative, verbose and discloses no reasonable ground of appeal against the decision of the trial judge.
c. The Appellant subsidiary issues on paragraphs 4.28-4.38 and the arguments contained therein and that of paragraph 4.39-4.50 in his brief of Arguments for determination does not have direct bearing on any of the grounds of appeal of the Appellant.

d. That the Record of Appeal purportedly compiled and transmitted by the Appellant outside 7(days) period after the Registrar?s time lapsed is in total disregard of the provisions of paragraph 6(h) of the Court of Appeal Practice Directions, 2013 which stipulates that the right of an Appellant to compile and transmit Records on his own can only be mature upon the expiration of 7 days after the failure of the Registrar of the Court below to compile the Records.
e. No leave of the Honourable Court was sought and obtained by the Appellant to authorize a departure from the Rules in the compilation and transmission of the said Records.

As required by the Rules of this Court, the Preliminary Objection must first be determined before proceeding with the determination of the substantive appeal or any part of it that survives the objection. The Appellant responded to the Preliminary Objection in his Reply Brief particularly pages 1-9 of the Reply. The Appellant formulated 3 issues for determination under the Preliminary Objection, they state as follows:
i. Whether the grounds of appeal as contained in the Appellant?s Notice of Appeal dated January

25, 2018 are not grounds of law thereby dispensing with the requirement of leave of Court to appeal?
ii. Whether the grounds of appeal as contained in the Appellant?s Notice of Appeal dated January 25, 2018 are not valid and competent?
iii. Whether the record of Appeal compiled and transmitted by the Appellant to this Honourable Court is not valid and competent?

The Respondent did not formulate any issue for determination under the preliminary objection. The Court shall therefore adopt the issues distilled by the Appellant for determination here. In arguing the preliminary objection, the Respondent submitted that the grounds of appeal challenge the exercise of discretion of a judge and therefore they are grounds of mixed law and fact, citing IWO & ORS. VS. UBA PLC (2017) LPELR- 43048 (CA) to the effect that where the ground challenges an interlocutory decision, it is a ground of mixed law and fact and therefore the Court cannot be called upon to examine the facts. On the nature of discretion, the Respondent submitted that the apex Court restated it in the case of AJUWA VS. SPDC NIG. LTD. (2011) LPELR 8243 and contended that the

grounds of appeal can only be valid if filed pursuant to Section 241(1) (b) of the 1999 Constitution, relied on the cases of KANO ILE VS. GLOEDE & HOFF LTD. (2005) ALL FWLR (272) 254; MAIGORO VS. GARBA (1999) 10 NWLR (PT. 624) 555 and AKIWIWU MOTORS LTD. VS. SONGONUGA (1984) 5 SC 188. The Respondent argued that because the Appellant did not seek leave to appeal within 14 days limited by law such notice of appeal is rendered incompetent and liable to be struck out, citing NALSA AND TEAM ASSOCIATES V NNPC (1991) 11 SCNJ 51 at 74 and OKOYE VS. TABANSI (2002) FWLR (PT. 85) 262 and FIRST FUELS LTD. VS. NNPC (2006) LPELR- 5647(CA).

Continuing the argument, the Respondent submitted that the grounds are argumentative with no real effort at stating the nature of the error or misdirection as required by Order 7 Rule 2(2) & (3) of the Court of Appeal Rules, 2016 and KHALIL VS. YAR?ADUA (2003) 16 NWLR (PT. 847) 446. Furthermore, the Respondent submitted that the issues distilled for determination have no bearing to the grounds of appeal and no arguments were proffered in support of the issues for determination. He referred to EBBO VS. OGODO (1984) 1

SCNLR 372. The Respondent complained that the first and second grounds of appeal were split into 4 issues for determination and that such is not allowed and condemnable as held in the case of AGBETOBA VS. LAGOS STATE EXECUTIVE COUNSEL (sic) (1991) 4 NWLR (PT. 188) 664. The Respondent observed that 4 grounds of appeal were set out and 3 issues distilled there from but in fact 6 issues were treated in the brief of arguments contrary to the rules of court, relied on AMODU VS. THE COMMANDANT, PC, MAIDUGURI (2009) 15 NWLR (PT. 1163) 75 on proliferation of issues. Arguing further, the Respondent submitted that it is against the rules to have issues less than the grounds of appeal and not more, citing LEEDO PRESIDENTIAL HOTEL LTD VS. BANK OF THE NORTH LTD. & ORS (1993) 1 NWLR (PT. 269) 334. On the issues, the Respondent submitted that it does not have any bearing with the grounds of appeal, relied onAJA VS. OKORO (1991) 7 NWLR (PT. 203) 260 ; A.G. BENDEL STATE VS. AIDEYAN (1989) 4 NWLR (PT. 118) 646; OGBUANYINYA VS. OKUDO (1990) 4 NWLR (PT.146) 551; ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131) 137; EGBE VS. ALHAJI (1990) 1 NWLR (PT. 128) 546 and MADAGWA VS.

STATE (1988) 5 NWLR (PT. 92) 60.

Another fundamental defect highlighted by the Respondent is that the record of appeal purportedly compiled and transmitted by the Appellant?s counsel is defective and incompetent having been compiled outside 7 days after the registrar?s time elapsed contrary to paragraph 6(h) of the Court of Appeal practice Directions, 2013 which stipulates that the right to the Appellant can only mature upon the expiration of 7 days after the failure of the Registrar of the Court below to compile records. He argued that the effect is that there is no competent record of appeal. Appellant argued further that it is more so because there was no leave sought to depart from the rules. Continuing, the Respondent submitted that Order 21 Rules 2 and 3 of the Court of Appeal, Rules 2016 offers a facility for departure from the rules or waiver of compliance where a party desires to adopt a procedure not provided by the rules and the Appellant herein failed to avail itself with the provision within the period required by seeking leave to do so therefore the record is incompetent. He finally on the preliminary objection urged the Court to

uphold it and dismiss the appeal for incompetence and want of jurisdiction.

The Appellant in response proffered arguments in respect of the three issues donated for determination under the Preliminary objection. I shall review submission in respect of the three issues all together. On issue one, the Appellant submitted that the Respondent was in error to submit that all interlocutory appeals raise grounds of mixed law and fact, it contended that Section 241 (1) of the 1999 Constitution prescribes conditions under which appeals can lie as of right and without leave and any appeal which does not fall within the said category would require leave of the trial Court or the Court as provided in Section 242 of the 1999 Constitution. Furthermore, that even the case of IWO VS. UBA (supra) relied upon by the Respondent admitted to the position above. The Appellant restated the position that where the grounds of appeal are ground of law, the appellant needs no leave, reproduced the grounds of appeal in this appeal and highlighted the essence of the 4 grounds of appeal which are grounds touching on jurisdiction and failure to afford the Appellant fair hearing.

Appellant submitted that the grounds are grounds of law and citing the case of OTTI & ANOR. VS. OGAH & ORS. (2017) LPELR-41986(SC) where the apex Court pronounced on how to determine the nature of the grounds of appeal and in NJEMANZE VS. NJEMANZE (2013) LPELR-19885 (SC) wherein an outline or criteria on how to distinguish a ground of law from a ground of mixed law and fact was set out by the Supreme Court. Applying the decision to the facts of the case, the Appellant submitted that the grounds of appeal borders on the trial Court?s application of the law to facts that were never in dispute therefore grounds of law.

Submitting on grounds one and two which are grounds touching on the jurisdiction of the trial Court, the appellant argued that they complain about the trial Court assuming jurisdiction over the claim in spite of the incompetent writ and that is clear on pages of 219-220 of the record where the trial Court admitted there was an alteration of the writ without leave of Court. On grounds three and four the Appellant argued that they complain of violations of the Appellant?s right to fair hearing guaranteed by Section 36 of the

1999 Constitution. The areas identified are that the Appellant cannot defend the claim without particulars of the Court and its motion dated the 29th day of June, 2017 was dismissed without considering its arguments in its Reply on points of law dated 24th day of October, 2017. It argued that grounds 3 and 4 are complaining about breach of fair hearing which is contrary to the Constitution and therefore grounds of law and dispensing with the requirement for leave.

Continuing with its submission particularly on issue 2, the Appellant argued that the grounds of appeal are valid and competent and the Appellant has not raised issues in excess of the grounds of appeal, citing ONWUDINJO VS. STATE (2014) LPELR-24061(CA) on what a good ground of appeal is. It contended that once a ground of appeal does not run foul of the standard set, the ground is a good ground of appeal. The Appellant submitted further that there are no subsidiary issues presented in the Appellant?s brief and what the respondent alleged as subsidiary issues is nothing but style of drafting adopted for clarity of the points raised in the Brief and that the Respondent cannot challenge

arguments in the brief in a Preliminary objection because the purpose of a preliminary objection is to strike at the appeal itself, citing IWO VS. UBA PLC (supra). It submitted that the Appellant?s Brief is valid and competent.

On issue three, the Appellant submitted that the contention that the record of appeal compiled and transmitted is incompetent on account that same was done outside 7 days period allowed is unfounded, baseless and conjured to mislead the Court. The Appellant referred the Court to the motion filed on the 19th day of February, 2018 seeking extension of time to compile and transmit record of appeal which was heard and granted on the 28th day of November, 2018. The respondent was duly served with the motion. The issue has become academic therefore and should be discountenanced. The Appellant finally urged the Court to dismiss the Preliminary objection and proceed to determine the appeal.

RESOLUTION OF PRELIMINARY OBJECTION
The Respondent in its preliminary objection challenged the grounds in the Notice of Appeal and the competence of the record of Appeal. The notice of Appeal contains 4 grounds of appeal and for better

appreciation of the objection, I shall reproduce them here shorn their particulars. They state thus:
GROUND ONE:
The trial Court erred in law when it assumed jurisdiction to entertain the Respondent?s case notwithstanding the incurable defect of the Respondent?s Writ of Summons filed on April 30, 2015.
GROUND TWO:
The trial Court erred in law and misdirected itself when it assumed jurisdiction to entertain the suit despite the manifest alterations made on the Respondent?s writ of summons dated April 30, 2015 without leave of Court solely on the premises that the said writ of summons was accepted by the Registry for filing and with the assessed filing fees paid.
GROUND THREE:
The trial Court erred in law and breached the Appellant?s right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) when it proceeded to assume jurisdiction to entertain the suit despite the failure of the Respondent to particularize its claim for special damages with sufficient particulars.
GROUND FOUR:
The trial Court erred in law when the Court

dismissed the Appellant?s Motion on Notice dated June 29th, 2017 without considering the arguments contained in the Appellant?s reply on point of law dated November 7, 2017.

Above are the grounds of the appeal which the Respondent contends are ground of mixed law and fact and that being an interlocutory appeal, the appellant must seek leave because no ground of law can arise from any interlocutory appeal. The right of appeal is determined by two factors – the nature of the appeal and the party exercising the right. Where the appeal falls within Section 241(1) of the Constitution, an appeal lies as of right. Where the appeal does not fall within Section 241(1) of the Constitution, Section 242(1) applies. In other words, leave is required. The right of appeal conferred by Sections 241(1) does not require leave of the Court, see CHUKWU & ORS VS. INEC & ORS. (2014) LPELR-25015 (SC). The issue in contention here is the nature of the grounds which the Respondent contends are grounds of mixed law and fact and because it arose from an interlocutory ruling. Let me disabuse the wrong and misleading submission that all grounds of appeal arising

from interlocutory ruling must be grounds of mixed law and fact. The right of appeal is constitutionally provided for and therefore it is thus circumscribed. Therefore once the grounds of appeal are grounds of law, there is no need of leave because appeal can lie as of right whether the appeal is from a final judgment or an interlocutory appeal. The nature of grounds of appeal in an interlocutory appeal determines whether leave is required or not.
The Appellant submits that the grounds of appeal are grounds of law. The apex Court classified grounds of appeal generously and admitted that there is a thin line of difference between grounds of law and grounds of mixed law and fact, see CHROME AIR SERVICES LTD & ORS. VS. FIDELITY BANK (2017) LPELR-43470(SC) which held thus:
“It is recognised that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a

ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See: Odunukwe vs. Ofomata (2010) 18 NWLR (pt. 125) 404; Metal Construction (W.A.) Ltd. Vs. Migliore (1990) 1 NWLR (Pt. 126) 299; Ogbechie vs Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam vs. Anukam (2008) 5 NWLR (Pt. 1081) 455.?
I reproduced the 4 grounds in this appeal and they set out a challenge to jurisdiction and breach of right to fair hearing and I am of the respectful view that they evince issues of law and there are fundamental. Jurisdiction is so important and fundamental that it can be raised orally and at the appellate Court for the first time, see SALISU & ANOR VS. MOBOLAJI & ORS. (2013) LPELR-22019(SC) wherein the apex Court held:
“It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe vs. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings

were conducted by a Court, the proceedings would come to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. vs. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto vs. CBN (1991) 11-12 SC 176; Oloriode vs. Oyebi (1984) 5 SC 1; Ezomo vs. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 Ors vs. CPC & 53 Ors (2011) 12 SC (part 111) 113.”
It is also indubitable that fair hearing is a pillar in the administration of justice which has constitutional backing. Any allegation of its breach would definitely be a ground of law and not mixed law and fact. The essence of all the 4 grounds challenge the application of law to the processes before the Court which are facts crystallized before the Court and there was no need to evaluate facts. After a careful consideration of the grounds of appeal, I agree with the Appellant that the 4 grounds are grounds of law. The Respondent also quoted out of con and misapplied the decision in IWO VS. UBA (supra), in that

case there was a challenge to the exercise of discretion upon facts, that made the ground of appeal one of mixed law and fact. Unlike here where the Court below was called upon to apply the law to originating processes without any need to demand or call for the exercise of discretion by the Court. The authority of IWO VS. UBA (supra) is not applicable here.

The Respondent also challenged the grounds of appeal and contended that they are unduly argumentative and based on technicalities, narrative, verbose and discloses no reasonable grounds against the ruling and urged the Court to strike out the appeal. The 4 grounds of appeal reproduced above shorn of their particulars are valid and competent grounds of law as found earlier. A good ground of appeal is one that was described in the case of IZEDONMWEN VS. UNION BANK PLC (2012) 6 NWLR (PT. 1295) 1 at 27 thus:
?The law is well settled that a good ground of appeal must be concise, elegantly drafted and straight to the point such that as soon as it is read, the error and misdirection complained against can be immediately understood.”
What the Respondent classifies as argumentative are the

particulars to the grounds of appeal. The essence of particulars of error to a ground of appeal is basically to explain or substantiate on the ground of appeal. The apex Court in the case of WAZIRI & ANOR. V. GEIDAM & ORS. (2016) LPELR-40660(SC) explained the role particulars play in giving bite to grounds of appeal in the following manner:
“The functions which particulars to a ground of appeal are required to perform are to highlight the grouse of the Appellants against the judgment on appeal. They are specifications of errors and misdirection which shows the complaint the Appellants is screaming about and the line of thought the Appellants are going to canvass in their Brief of Argument. What is fundamental is that in the ground of appeal and the particulars which are really explanatory notes what is in contest is left open and exposed so that there is no attempt at an ambush or a giving of room to which the Respondent would say he was left in the dark of what he was to defend on appeal or that they are unable to understand or appreciate the complaint in the said ground.”
Particulars generally elucidate the areas of complaint but should

not be independent from the ground of appeal and it is the requirement of the rules of Court that particulars be provided to grounds of appeal to avoid ambush the other side. Order 7 Rule 2(2) of the Court of Appeal Rules requires that the error be specified in a concise and distinct heads.
The particulars and nature of the error or misdirection alleged in the ground of appeal which is required to be specified by the particulars should be the specific reasoning, finding or observations in the judgment or ruling relating to or projecting the error or misdirection complained of. They are in a sense the itemization of the error or misdirection in the judgment or ruling. Particulars required are not arguments or narratives that should be proffered at the hearing of the appeal to establish that the Court erred or misdirected itself. They should also not be independent complaint from the ground of appeal itself but ancillary to it. See also HONIKA SAWMILL (NIG.) LTD. VS. HOFF (1994) 2 NWLR (PT.326) 252 AND AMUDA VS. ADELODUN (1994) 8 NWLR (PT.360) 23 AT 31.
?I have carefully considered the particulars to the grounds of appeal and I find that they itemized

in a clear fashion the errors alleged in the grounds of appeal. I do not find them argumentative, verbose or narrative. They detailed the alleged errors thereby giving the respondent a clear view of what the Appellant?s brief shall contain. The grounds of appeal and particulars are therefore competent to sustain the appeal. On the number of issues distilled for determination, I find 3 issues for determination which are less than the number of grounds of appeal and therefore not prolix. Are there subsidiary issues? The Appellant?s Brief highlighted certain aspects in the brief, which have arguments on some of the areas identified by the particulars of error in support of the grounds of appeal. These are aspects challenged by the respondent. They were not labelled sub issues and if there were sub issues then they would have been listed under the issues and then be laballed wrong. The intention to highlight could be misunderstood that they are independent areas covered under the issue but they are not. Particulars of error cannot be independent from the ground of appeal. It would be safer not to highlight such but just proceed to proffer arguments

under the issue without categorizing them. Having not named them as sub issues, it would be presumptuous to tag them as such.

On the whole therefore, I find the Preliminary Objection unmeritorious and it is hereby dismissed. I shall proceed to determine the appeal in the merit. The Court shall consider all the three issues distilled by the Appellant all at once to avoid repetition. The issues were reproduced earlier in this judgment.

MAIN APPEAL:
The Appellant in arguing the appeal submitted that the Court below erred in assuming jurisdiction the writ of summons had manifest alteration and incurable defects knowing that jurisdiction is a sine qua non adjudicatory competence, relied on YAR?ADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) 123; ODOM VS. PDP (2015) 6 NWLR (PT. 1456) 527 and listed the features of jurisdiction enumerated in the case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341. Continuing, the Appellant submitted that rules of Court are meant to be obeyed, relying on FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES (2010) 15 NWLR (PT. 1216) 247. It referred to Order 10 Rule 2 of the Federal High Court Rules 2009 which said an

originating process shall not be altered after it is sealed except upon an application to a judge in chambers. It argued that the writ at pages 2-4 of the record would reveal manifest alterations by long hand which resulted in a suit filed on the April 30, 2015 is dated November 28, 2016 while the suit number indicates that it was filed in 2015. The Court below acknowledged the manifest alteration made on the originating processes after it was sealed and at pages 219 of the record, appellant argues that it makes the originating process questionable and contrary to Order 10 Rule 2 of the Federal High Court. The appellant submitted that the Respondent having tampered with the originating process, the process became incompetent and should have been struck out, more so because it is designed have a life span, citing Order 3 Rule 15 (1) and (2). It further submitted that the writ was only served after the life span was renewed by order of Court made on the 23rd day of February, 2017. The contention of the Appellant is that the rules that permits renewal placed a caveat for marking such a writ showing the period for which the validity was extended and it used the

word shall, it cited the case of UGWU VS. ARARUME (2007) VOL. 31 WRN 1 at 40. Appellant submitted that the format provided in the rules was not complied with. That in the absence of evidence of endorsement showing that the writ was renewed and the period of the extension made the writ incompetent and divesting the Court below of jurisdiction to adjudicate over the matter. Appellant emphasized that rules of Court are meant to be obeyed, citing MC INVESTMENT LIMITED VS. CORE INVESTMENT & CAPITAL MARKET (2012) 12 NWLR (PT. 1313). It challenged the Court below when it assumed jurisdiction in the midst of glaring and fundamental breaches which it alleged were not fundamental though a mandatory requirement. It relied on HONEYWELL FLOUR MILLS PLC VS. ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) 387 and APC VS. INEC (2015) 8 NWLR (Pt. 1462) 531.

The Appellant drew the Court?s attention to the distinction between non substantial technicality and a substantial technicality which amounts to a condition precedent, citingDALKO VS. UBN PLC (2004) 4 NWLR (PT. 862) 123. It urged the Court to find that the originating processes were fundamentally defective.

On failure of counsel of the Respondent to affix his stamp and seal, the Appellant referred to Rule 10 of Professional Conduct (RPC) for Legal Practitioners made pursuant to the Legal Practitioner?s Act which requires that a lawyer acting in his capacity as a legal practitioner shall affix a seal and stamp as approved by the Nigerian Bar Association and the effect of failure to affix the seal and stamp makes such documents irregular. Appellant citing YAKI VS. BAGUDU (2015) 18 NWLR (Pt. 1491) 288 admitted that the irregularity can be regularized but where such is not done then the Court cannot take cognizance of the document so filed. That the Court below upon the observation by the Appellant ordered the Respondent?s counsel to affix his seal and stamp within 10 days but he failed to do so even as at date of filing Appellant?s brief thereby making the processes remain invalid and unable to invoke the jurisdiction of the Court.

On whether the writ of summons was directed at the Appellant, the Appellant argued that the standard format in the rules of Court-Form 1 makes provision for the identity of the Defendant to whom the

writ is issued and address but that the Respondent in this appeal failed to follow the format thereby having the writ without an identifiable defendant thereby divesting the Court of jurisdiction because it was merely addressed to the defendant without more. That the writ is fraught with ambiguity and the trial Court failed to pronounce on this issue in its ruling though presented to it going contrary to the admonition by the apex Court in the case of HONEYWELL FLOUR MILLS PLC VS. ECOBANK (NIG.) LTD. (supra) that trial and intermediate Courts must pronounce on all issue presented for determination.

The Appellant on the failure to commence a suit with a competent originating process relied on YAKUBU VS. F.M.B.N. LTD. (2015) 11 NWLR (PT. 1470) 232 that such failure divest the Court of jurisdiction. Furthermore, that any proceedings commenced without jurisdiction is a nullity and a defective writ is void ab initio and cannot be amended.

On issue two, the Appellant contended that failure to give particulars of damage inhibits the Appellant?s right to defend the claim but the Court below preferred to take evidence, parties having joined issues, at

pages 255 of the record of appeal. The Appellant contended that the Court below denied it fair hearing by failing to pronounce on the issue raised in its written submissions because it is trite that when a party claims damages he must particularize same as required by rules of the trial Court further emphasized in ABI VS. C.B.N. (2012) 3 NWLR (PT. 1286) 42, citing Order 13 Rules 5 which used the word shall and the import of it is as held in EMORDI VS. IGEKE (2011) 9 NWLR (Pt. 1251) 24. Furthermore, the appellant relied on UNIJOS VS. IKEGWUOHA (2013) 9 NWLR (PT. 1360) 478; NZUBE ANAZODO VS. PAZMECH INTER TRADE, NIGERIA & ANOR (2008) 6 NWLR (PT. 1084) 529; NWANJI VS. COASTAL SERVICES (NIG) LTD. (2004) 11 NWLR (PT. 885) 552 on a vague claim. Appellant argued that it is a breach of fair hearing when a party is not given fair notice of what is claimed against it, relied on OTUNBA JUSTICE OLUGBENGA DANIEL VS. FEDERAL REPUBLIC OF NIGERIA (2014) 8 NWLR (PT. 1410) 570. Continuing the Appellant said inadequate pleadings will lead to surprises at the trial and fairness of the trial thereby compromised, citing GEORGE & ORS. VS. DOMINION FLOUR MILLS LTD (1963) 1 ALL

NLR 71; A.C.B. LTD. VS. GWAGWADA (1994) 5 NWLR (PT. 342) 25 on purpose of pleading and Section 36 of the Constitution 1999.
On issue three, the appellant submitted that the Court below did not determine issues raised in its reply on points of law dated November 7, 2017 particularly its issue that reads thus:
?Whether paragraph 4a, b, c, and d of the Plaintiff/Respondent?s (Now Respondent) Counter affidavit dated October 24, 2017 ought not to be struck out and/or discountenanced for non-compliance with the Evidence Act.”

It argued that the Court below failed to consider and pronounce on the issue in its ruling and the Court should either resolve the issue or order a retrial, citingOVUNWO VS. WOKO (supra). It finally urged the Court to allow the appeal and grant the reliefs sought.

The Respondent in reacting to the main appeal and on the three issues distilled for determination in their Respondent?s Brief submitted that what determines jurisdiction is the cause of action, citing OMNIA (NIG.) LTD. VS DYKTRADE LTD (2007) 15 NWLR (PT. 1058) 576. On the alterations, discrepancies in date and failure to affix stamp, the

Respondent submitted that they are all procedural irregularities which cannot vitiate the writ, relied on FAMFA VS. A. G. FEDERATION (2003) 18 NWLR (PT. 852) 453 and argued that the law is clear that an action is valid when the writ is taken out by an interested party in keeping with SHUAIBU VS. MUAZU (2007) 7 NWLR (PT. 1033) 271. A further argument by the respondent is that even with the alterations and defects, the writ in that defective form coveys the grievance of the Respondent and it was properly signed therefore procedural irregularities cannot vitiate a writ as a breach of the rules can only render a proceedings irregular and not a nullity. He also contended that substantial justice is the current norm and not technicality, relying on CONSORTIUM M.C VS. NEPA (1992) 6 NWLR (PT. 246) 132; AFRO-CONTINENTAL (NIGERIA) LTD VS. COOPERATIVE ASSOCIATION OF PROFESSIONAL INC (2003) 5 NWLR (PT. 815) 340; UNION BANK OF NIGERIA PLC V IKWEN (2000) 3 NWLR (PT. 648) 223; SHA VS. KWAN (2000) 8 NWLR (PT. 670) 685; ASIMS NIG LTD. VS. LOWER BENUE RIVER BASIN (2002) 8 NWLR (PT. 769) 349; IBERO VS. UME-OHANA (1993) 2 NWLR (PT. 277)510; CHAPMAN VS. CFAO & ANOR. (1943) 9

WACA 181; IKPANG & ORS. VS. EDOHO & ANOR. (1978) 2 LRN 29.

On failure to affix seal and stamp on the originating processes, the Respondent submitted that the argument cannot stand citing the case of YAKI VS. BAGUDU & ORS. (2015) SC 18; 18 NWLR (PT. 1492) 288 which says such failure is a mere irregularity and that he has prepared a motion seeking extension of time to comply with the order of Court. He further argued that the procedure to regularize was only cleared in the case of WIKE VS. PETERSIDE (NO.2) (2016) 1-2 SC (PT.1) 37 which held that an application to regularize and a deeming order is the appropriate step.

On issue two the Respondent submitted that it is an issue for substantive trial and therefore too early to be an issue, citing OMNIA (NIG) VS. DYKRADE LTD. (supra) to urge the Court to discountenance the issue.

Continuing on issue three, the Respondent the Court gave equal opportunity to all sides to be heard and therefore no breach or miscarriage of justice occurred and this Court cannot determine the issue not considered by the Court below. He submitted that the Appellant raised fresh issues in its Reply address when

the rules prohibits it from doing so. He contended that the lower Court was therefore right to discountenance the fresh issues raised by the Appellant, relied on EGHAREVBA VS. FRN & 3 ORS. (2016) 2 SC (PT. III) 166 to say that the rules of the Federal High Court do not have any provision for fresh issues. Furthermore, he argued that the Appellant failed to demonstrate that a miscarriage of justice was occasioned. He finally urged the Court to dismiss the appeal.

The Appellant in its Reply on points of law submitted that the Respondent also agreed that the Court below did not consider all issues presented for determination and citing OVUNWO VS. WOKO (2011) 17 NWLR (PT. 1277) and BRAWAL SHIPING (NIG.) LTD. VS. ONWADIKE CO. LTD. (2000) 11 NWLR (PT. 678) 387 to say it is the duty of the court to pronounce on every issue laced before it for consideration. On the submission that the Appellant raise fresh issues, the appellant argued that the so called issues were the highlights of the breaches of the Evidence Act which are points in support of the issue not considered. It continued to submit that where there is a breach of fair hearing, the proceedings are

vitiated and rendered null and void because fair hearing connotes fair trial and a fair trial of a case consists of the whole hearing and not just a part of it. It finally urged the Court to allow the appeal and set aside the ruling of the Court below.
I shall resolve all the three issues for determination all at once.

RESOLUTION
The fundamental challenge and issue in this appeal is on the manifest defects on the face of the writ taken out by the Respondent; lack of franking of the initiating process by counsel to the Respondent; failure of the trial Court to determine all issues presented for resolution and failure of the Respondent to particularize the claim. The Appellant contended that the defects are material and have the effect of eroding the jurisdiction of the Court. Jurisdiction is important to any adjudication, it is a threshold matter which has received judicial attention, see IDISI VS. ECODRILL (NIG.) & ORS. (2016) LPELR- 4048(SC) where Nweze, JSC in reemphasizing the importance of jurisdiction said thus:
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As

such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, ATTORNEY GENERAL FOR TRINIDAD AND TOBAGO VS. ERICHIE (1893) AC 518, 522; TIMITIMI VS. AMABEBE 14 WACA 374; MUSTAPHA VS. GOVERNOR OF LAGOS STATE [1987] 2 NWLR (PT 58) 539; UTIH VS. ONOYIVWE [1991] 1 NWLR (PT 166) 206. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply a nullity, JUMANG SHELIM AND ANOR. VS. FWENDIM GOBANG [2009] 7 SCM 165; [2009] 12 NWLR (PT 1156) 435.”
Jurisdiction is generally determined by 3 main features as settled in the case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341 as follows:
?when an issue of jurisdiction is raised, the Court would consider whether:
a. It is properly constituted as regards numbers and qualification of the members of the bench such that no member is for any reason disqualified;
b. The subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercising of its jurisdiction; and
c. The case comes before the Court initiated by due

process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction.?
The Appellant in challenging the jurisdiction of the Court below narrowed it down to the third feature, it contended that the writ does not qualify as a valid writ thereby divesting the Court of jurisdiction. There are obvious defects on the writ which is the initiating process and the Appellant contends the defect is fundamental enough to divest the Court of jurisdiction. Fundamentally, the complaint is rooted or grounded on Order 10 Rule 2 of the Federal High Court Rules, 2009 which provides that an originating process shall not be altered after it is sealed except upon application to a judge in chamber. The date on the writ in this case was manifestly altered, this was finding of the Court below found, it said:
?Having looked at the writ of summons in this suit; it is true as argued by the defence that the writ was filed on the April 30th, 2015 but purportedly dated 28th November, 2016. It is manifest from the date on the writ of summons the 28th November, 2016 was supper imposed where the writ is dated with black biro.?

The clear alteration is one that converted the writ into incompetent process, the aspect of alteration is on the dating of the writ, it was filed on the 30th day of April, 2015 while the endorsement was made on the 28th day of November, 2016 (the date super imposed on another date) see page 2 of the record of appeal. On page 4 two different dates are also reflected purporting that the writ was served on 30th day of April, 2015 and the portion for affidavit of verification has 28th day of November, 2016. These are fundamental irregularities which impeach the sanctity of the writ, it is not possible to have a valid writ with such irregular dates, the reverse could be accommodated. The problem was compounded by the fact that the writ had expired before it was renewed. Again, the six months period of extension was not stated on the face of the writ as required by the rules of the Court below, that is to say it was not sealed. The requirement for sealing is for the period of extension to be clearly stated so that it can be apparent on the face of the writ that it is valid and to know when the writ will again expire. The rules also demand that the life span of the writ

to be named specifically to avoid serving a stale writ on the defendant.
Jurisdiction of a Court is an issue of substantive law, see NAGOGO VS. CPC (2012) LPELR-15521 (SC) which held this:
?Jurisdiction is derived from substantive law and not procedural law. Rules of procedure therefore cannot divest the Court of jurisdiction. The conditions precedent mentioned in the case of NKEMDILIM VS. MADUKOLU (supra) are largely statutory requirements. The procedural requirement if breached can make the process voidable without touching the jurisdiction of the Court. SeeA.G.KWARA STATE VS. ADEYEMO & ORS (2016) LPELR-41147(SC).
Jurisdiction therefore is a question of law and there are two types of jurisdiction: (a) Jurisdiction as a matter of procedural Law (b) Jurisdiction as matter of substantive Law. A litigant may waive the former but not the latter. For example a litigant may submit to a procedural jurisdiction of the Court where a writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant to pre-action notice. No litigant can confer jurisdiction on the Court where

the Constitution or Statute says that the Court does not have jurisdiction. The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it. See; ADEGOKE MOTORS LTD. VS. ADESANYA (1989) 3 NWLR (PT. 109) P. 255, EZOMO VS. OYAKHIRE (1985) 2 SC 260 at 282, NWABUEZE V. OKOYE (1988) 1 NWLR (PT. 91) P. 664. On the other hand, where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. SeeARIORI VS. ELEMO (1983) 14 NSCC 1.
In the case of MOBIL PRODUCING NIGERIA UNLIMITED VS. MONOKPO (2003) 18 NWLR (PT.852) 346 Niki Tobi JSC (of blessed memory) stated that jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Non-compliance with the rules

which affect the very foundation, or props of the case/cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder. Ordinarily a breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity, see SAUDE VS. ABDULLAHI [1989] 4 NWLR (PT. 116) 388.
The distinction though very fine has always been made between procedural irregularity and nullity. A Judgment may be set aside for irregularity where the irregularity consists of non-compliance with the rules. Thus where there is such a non-compliance which affects the fundamental principle of irregularity, and thus vitiating all acts resulting in a nullity. InHAMP-ADAMS VS.. HALL (1911) 2 KB.942, it was stated that- “Where Judgment against a party is signed irregularly, it is worse than a mere non-compliance with the rules, and he is entitled ex debito justitiae to have it set aside…” A nullity is in law a void act, an act which has no

legal consequence. The act is not only bad, and as was stated by Denning L.J. in U.A.C. LTD. VS. MACFOY (1961) 3 ALL E.R. 1169, is incurably bad. In FRY VS. MOORE (1889) 23 QBD 395, Lindley MR distinguished between an irregularity and a nullity, at p. 398 when he said: “But then arises the question, whether the order for substituted service was a nullity, rendering all that was done afterwards void, or whether it was only an irregularity. If it was the latter, it could be waived by the Defendant. I shall not attempt to draw the exact line between an irregularity and a nullity. It might be difficult to do so…” A clearer distinction has been made in ISAACS VS. ROBERTSON (1984) 3 W.L.R. 709 where Diplock L.J. said “The contrasting legal principles or concepts of voidness and voidability form part of English Law of Contracts. Such an order is either irregular or regular. If it is irregular it can be set aside by the Court that made it upon an application to that Court, if it is regular it can only be set aside by an appellate Court upon appeal if there is one to which appeal lies.
?I consider the irregularities in dates fundamental enough to make the writ

incompetent and voidable. There is no doubt that rules of procedure and evidence are designed to ensure that substantial justice is arrived at in any given case. Put in another way, the rules are made to ensure that no decision is reached which fails to meet the ends of justice. Rules of Court are therefore meant to be obeyed because they are made to ensure smooth administration of justice, see MC INVESTMENT LTD. & ANOR. VS. CAPITAL MARKETS LTD. (2012) LPELR- 7801
However, there is a distinction between substantive irregularity and procedural irregularity as explained in the decision in ODOM & ORS. VS. PDP (2015) LPELR-24351 (SC) as follows:
“…where an irregularity is substantive in nature, it renders a process incompetent; where however it is procedural, the effect is not to operate for purpose of defeating the course of justice, because the Court is set out to do justice.? Per OGUNBIYI, J.S.C
The Appellant situated the irregularity as one that divest the Court of jurisdiction. It is essential to understand that there is a whole world of difference between procedural irregularity and the substantive jurisdiction of a Court to

hear a matter and procedural irregularity does not qualify as an issue of jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings 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 decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Procedure for invoking the jurisdiction of Court is different from the power of the Court to decide 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 generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. It is matters of substantive jurisdiction that can

be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again – KWAA VS. KWAKWA 3 WACA 176, KATSINA LOCAL GOVERNMENT AUTHORITY VS MAKUDAWA (1971) 7 NSCC 119, ODU’A INVESTMENT CO. LTD. VS. TALABI (1997) 10 NWLR (PT 523) 1, MOBIL PRODUCING (NIG) UNLIMITED VS. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (PT. 798) 1, NDAYAKO VS. DANTORO (2004) 13 NWLR (PT 889) 187. It is firmly established that even the failure to pay filing fees does not raise issue of jurisdiction and that the failure to fulfill the provisions of the High Court Rules in that regard is a mere irregularity, which when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way.
?The Appellant rightly bought out the distinction between non-substantial technicality in a proceedings and

what the Courts have termed substantial technicality when relying on the case of DALKO VS. UBA PLC (supra), the holding is quite instructive, it says:
?A distinction must be drawn between a mere non- substantial technicality in proceedings that are competent and within the jurisdiction of a Court and substantial technicality which amounts to a condition for the commencement of an action and which renders a proceedings manifestly incompetent thereby affecting the jurisdiction of the Court and renders the same incurably defective. Whereas the former may be waived, the latter as a general rule may not be waived.?
The test is that of the degree of substantiality with regards to the error from the judgment. There must also be a miscarriage of justice occasioned and to be made out by the Appellant. The Appellant did establish a substantial or a high degree of the miscarriage of justice occasioned to it by the error on the part of the trial judge in the breach of appellant?s right to fair hearing. I agree with the Appellant that the failure to consider all issues presented for determination infringed on its right to fair

hearing.
In matters of procedural irregularity such as in the instant case, firstly, it is settled that such an irregular proceeding, can only be set aside, if the party affected, acted timeously and before taking any or fresh step since discovering the irregularity. It is when a point on procedural irregularity is timeously and properly raised, that it becomes necessary for an appellate Court and indeed a trial Court, to consider its merit. The Appellant in this case satisfied the requirement of a timeous objection and a well-grounded objection. The effect of an incompetent process was settled in the case of OWOH & ORS VS. ASUK & ANOR (2008) LPELR-2853(SC) thus:
”An irregularity that renders proceedings incurably defective and null and void, may not be waived as acquiescence cannot confer jurisdiction. See: SKENCONSULT (NIG.) LTD. & ANOR. VS. GODWIN UKEY (1981) 1 S.C 6 AT 26; (REPRINT) 4, MANAGEMENT ENTERPRISES LTD. & ANOR. VS. JONATHAN OTUSANYA (1987) 2 NWLR (PT. 55) 1979 and OBIMONURE VS. ERINOSHO & ANOR. (1966) 1 ALL NLR 250.”
?The irregularity on the writ of summons is one that is incurably defective and to render

the proceedings undertaken pursuant to must be set aside. The defective writ is incompetent and must be struck out.

In deference to the apex Court?s admonition that all intermediary Courts must resolve all issues presented to it even when one issue settles the matter, I shall proceed to resolve the other issues presented by the Appellant.

The Appellant challenged the claim for lacking in particularization as required by the rules of Court. The settled position of law is that a substantive issue is not determined at an interlocutory stage of the proceedings, being an interlocutory appeal, one must avoid making any observation in the judgment which might appear to prejudge the main issue yet to be tried, seeOJUKWU VS. GOVERNOR OF LAGOS STATE (1986) 3 NWLR (PT. 26) 39; EGBE VS. ONOGUN (1972) 1 ANLR (PT. 1) 95. The issue is intricately connected to the substantive claim and therefore cannot be resolved at this stage of the proceedings. Furthermore, the non-particularization is an issue that can defeat the claim at the end of trial if not established. It is therefore premature at this stage. It is a defence to the main claim and not one that

can defeat the claim in limine. See BUREMOH VS. AKANDE (2017) LPELR-41565(SC) which held thus:
“… a Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues capable of prejudging the substantive issues before the Court. Interlocutory applications, which applicant’s motion is, must remain the handmaid and aid that enable the Courts reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between the parties. SeeCONSORTIUM MC VS. NEPA (1992) NWLR (PT 246) 132 AND SENATOR AMANGENIMIBARIGHA VS. PDP & 2 ORS (2012) 12 SC (PT V) 1.”

The Appellant also alleged that the Court below did not consider its arguments presented in its reply on points of law. The most pressing issue in contention is thus:
?Whether paragraph 4a, b, c, and d of the Plaintiff/Respondent?s (Now Respondent) Counter affidavit dated October 24, 2017 ought not to be struck out and/or discountenanced for non-compliance with the Evidence Act.”

competence of certain paragraphs of the Respondent?s counter affidavit, which is in support of the Respondent?s case opposing the preliminary objection. It is therefore wrong for the Respondent to submit that the issue was a fresh issues introduced by the Appellant. A challenge to certain paragraphs of a counter affidavit contending that they breach the provisions of the Evidence Act cannot be fresh issues. Indeed, the Court below failed to resolve, comment or address it. The failure is a breach to the appellant?s right to fair hearing. The point must be made that no matter how trivial a point or issue may be, the Court must resolve same, that is what the Court has been empowered to do. The effect of such a failure to consider all issues is a breach of fair hearing which nullifies the decision arrived at, see GARBA VS. MOHAMMED & ORS. (2016) LPELR-40612(SC) which held thus:
“The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. Failure to consider all issues would amount to a

denial of fair hearing where the parties have not been heard. The rationale for this, as held by this Court in OKONJI VS. NJOKANMA (1999) 14 NWLR (PT. 638) 250 @ 270 E – F, is that a judgment of a Court of record must demonstrate a dispassionate consideration of all issues canvassed by the parties and in turn show the result of such exercise. See also: A.G. LEVENTIS NIG. PLC. VS. AKPU (2007) 17 NWLR (PT. 1063) 416: ODETAYO VS. BAMIDELE (2007) 17 NWLR (PT. 1062) 77; KOTOYE VS. CBN (1989) 1 NWLR (98) 419.” PER KEKERE-EKUN ,J.S.C

The other aspect of the probe into the validity of the judgment appealed against is the failure of the Respondent?s counsel to frank the processes he filed as required by the Rule 10(1) of Professional Conduct for Legal Practitioners made pursuant to the Legal Practitioner?s Act. It provides thus:
?A lawyer acting in his capacity as a legal practitioner, legal officer or adviser…. shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.?
The trial Court upon the objection and on the

authority of YAKI VS. BAGUDU (supra) granted leave to the Respondent?s counsel to so affix the seal and stamp within 10 day but he failed to so even at the hearing of this appeal. The processes remained without a seal and stamp. The excuse is that there is no set procedure for seeking extension of time within which to comply with the order of Court. That is quite unfortunate, that a counsel would neglect to do the needful in complying or in obedience to an order of Court made in his favour. The excuse given by learned counsel is out rightly untenable. The consequence of failure to do as required is also provided in the some judgment of the Supreme Court, it held that the documents (processes) shall be deemed not to have been properly filed. The time allowed by the Court for the Respondent to regularize the processes has since lapsed and up till the time of this appeal no step has been taken and this is in flagrant disregard of the order of Court. In line with the decision inYAKI VS. BAGUDU (supra), the processes are irregular and voidable if not regularized, the writ and statement of claim shall be struck out, see BOVOA VS. FRN (2017) LPELR-43006.

And in ABBA VS. YUSUF & ORS. (2015) LPELR- 42414 (CA), the Court held thus:
“It is not in dispute, as all the parties are ad idem, that the Notice of Appeal, the very fulcrum, originator and foundation of this appeal signed and filed by a lawyer, J. A. Oguche Esq., for Kanu Agabi SAN, (CON) for the Appellant, in his capacity as a Legal Practitioner did not have on it a “seal and stamp as approved by the Nigerian Bar Association”, which process being a Notice of Appeal is clearly a legal process within the meaning and clear intendment of Rule 10(2) of the Rules of Professional Conduct of the Legal Profession 2007. The simple sole pertinent question on this aspect of the objection to the competence of the Notice of Appeal and by implication its effect on the appeal itself, is this; what is the consequences of a legal document signed and filed by a Legal Practitioner as a Court process in contravention of Rule 10(1) of the Rules of Professional Conduct. Now, by the provision of Rule 10(3) of the Rules of Professional Conduct, it is provided thus: “If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined

in Sub-rule 2 of this Rule, and in any of the capacities mentioned in Sub-rule (2), the document so signed or filed shall be deemed not to have been properly filed.”
I have no difficulty holding that the subject matter of the objection to the competence of Notice of Appeal filed without the stamp and seal of the Appellant’s lawyer, being procedural is governed by the adjectival law existing as at 3rd day of November, 2015 when the appeal was heard by this Court and not that existing as at the time of filing of the Notice of Appeal on 4th day of October, 2015. In my view therefore, the applicable authority is the decision of the Supreme Court in SENATOR BELLO SARKIN YAKI (RTD.) & ANOR VS. SENATOR ATIKU ABUBAKAR BAGUDU & ORS. (supra), cited by the learned counsel to the 1st and 2nd Respondents as APC. V. General Bello Sarakin Yaki (supra), and not Mega Progressive Peoples party V. INEC (Supra).
What then is the legal consequence of a Notice of Appeal signed and filed in contravention of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007 in Nigeria. The lead ruling had resolved this issue brilliantly and impeccably to the effect that it rendered such a Court process not properly filed and thus incapable of being countenanced by the Court as a Court process in the determination

of the rights and obligations of the parties. That is the law and so be it and that is indeed the end of the matter. This Appeal is incompetent, no more no less! See SENATOR BELLO SARKIN YAKI ANOR. VS. SENATOR ATIKU ABUBAKAR BAGUDU & ORS. (Supra). In law, the consequence of an improperly commenced proceedings or process filed improperly is that it renders such a proceeding liable to be struck out in limine not withstanding how meritorious the case of the party in breach and so adversely affected would have been if considered on the merit. This is so because one cannot put something on nothing and expect it to stand. It must surely crumble. Thus every proceeding founded on such an improperly filed Notice of Appeal would also be improper and indeed incompetent. See UAC VS. Mcfoy (1962) AC 152 @ p. 160. See also MCFOY VS. UAC (1961) 3 All ER 1169 @ p. 1172; SENATOR YAKI VS. SENATOR BAGUDU (supra); MADUKOLU VS. NKEMDILIM (1962) SCNJ 341; NIGERIAN RAILWAY CORPORATION & ORS VS. AKINBODE & ORS (2007) LPELR 4603 (CA)?. I too hold that the Notice of Appeal in this appeal filed on 4th day of October, 2015 without the seal and stamp of the learned counsel

for the Appellant is incurably bad and had rendered the substantive appeal founded thereon as having been improperly commenced and incompetent and thus liable to be struck out.” Per GEORGEWILL ,J.C.A
The situation in this appeal is more precarious because in this appeal, the Court below gratuitously gave the Respondent?s counsel 10 days to affix the seal and stamp so as to regularize his processes but he still neglected to do so on the excuse that there was no standard method to seek enlargement of time to do so. The Rule says the processes are deemed not to have been properly filed, that means the writ and statement of claim filed at the trial Court were not properly filed. I agree with my learned brother Georgewill, JCA that the said processes which are voidable should be struck out. I hereby strike out the writ and statement of claim before the trial Court.
?
The Appellant also contended that the writ was not addressed to a named defendant and that also makes the writ incompetent. I have viewed the writ in the record of appeal and I find there that the parties named are the same parties in this appeal with the Appellant described as the

defendant. The Respondent did not adopt the format provided by the rules of the trial Court wholly in that it omitted to name the defendant specifically again in addressing to whom the writ is directed to. I find this a mere irregularity that does not vitiate the writ and one that did not occasion any miscarriage of justice, moreso, the Appellant was not misled.
The law is trite that upon the objection, the Court must consider the merit of the objection to an irregular process. In MacFoy, Lord Denning delivering the judgment of the Privy Council also said: “…But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not 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. Meanwhile it remains good and a support for all that has been done under it.
Furthermore, the writ itself is also irregular as observed earlier in this judgment. An irregularity was defined in the case of DUKE VS. AKPABUYO (supra) thus:

“The term “irregularity” in respect of procedures, is most often construed by the Court to denote something not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity, id est, it is curable.”
It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity. Where, however, the defect does not affect the competence or jurisdiction of the Court, it is a mere irregularity which the Court may ex debito justitiae set aside. As Bairamian FJ put it in Madukolu: “If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication.
?The irregular dates on the writ and the fact that it was super imposed has breached the sanctity of the

process and thus a fundamental irregularity that will affect the writ because date on a writ is important for obvious reason. The Appellant having taken steps early enough to avoid the irregularity; the Court cannot close its eyes to it. The preliminary Objection is meritorious and the Court should have struck out the irregular process not for want of jurisdiction but for being irregular. The jurisdiction of the Court was not in issue under all the issues by the Appellant but writ was irregular in a fundamental way, therefore on the ground of irregularity, the writ must be struck out. In fact the trial Court should have the irregular dates on the writ as suspect. The Respondent strangely did not consider it fit to amend the writ.

The appeal succeeds fundamentally on the breach of Appellants right to fair hearing by the trial Court’s failure to resolve all issues presented to it for determination and the irregularity in dates writ of summons. There is also failure of counsel to affix his seal and Stamp on the initiating processes even after the Court gave him time to do the cumulative effect of all these breaches and irregularities is that the writ is irregular and

must struck out. The ruling of the trial Court delivered on the 25th day of January, 2018 in suit NO. FHC/UY/CS/1089/2015 is hereby set aside and the writ is struck out. I make no order as to cost.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read in draft the leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I endorse, in toto, the reasoning and conclusion in the erudite judgment. l too strike out the writ for hosting irredeemable irregularities. I abide by the consequential orders decreed in the leading judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was obliged before now with a copy of the lead judgment of my learned brother, YARGATA B. NIMPAR, JCA, just delivered.

The twin pillars of natural justice are an indispensable part of the process of adjudication. They are: audi alteram partem (hear the other side, that is one must be heard in his own defence before being condemned) and in nemo judex in casua sua (no one may be a judge in his own cause). And where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would

have been the same. The proceedings would still be null and void. See SALU V EGEIBON (1994) 6 NWLR (pt 348) 23, ADIGUN V A.G. OYO STATE (1987) 1 NWLR (pt 53) 678 and BAMGBOYE V UNIVERSITY OF ILORIN(1999) 10 NWLR (pt 622) 290.

I entirely agree with my learned brother, Yargata B. Nimpar that this appeal is meritorious and should be allowed based on the Fundamental breach of the appellant’s right of fair hearing and the apparent irregularities in the originating Writ of Summons. I also allow the appeal and abide by the consequential orders made in the lead judgment.