MOBIL PRODUCING (NIG) UNLTD v. LYCIUS & ORS (2020)

MOBIL PRODUCING (NIG) UNLTD v. LYCIUS & ORS

(2020)LCN/15073(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/225/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MOBIL PRODUCING NIGERIA UNLIMITED APPELANT(S)

And

MANFRED LYCIUS 2. EJITI BELEM AMAILE 3. PETER NTE 4. MR. EREFOROKUMA EGOP 5. SUNDAY EKENGO 6. JONAH UBULOM 7. BRIGHT ARIMIEARI 8. SILAS ARIMIEARI 9. OLAKAYI THOMPSON 10. BROWNSON IGOYOK 11. UGBANA THOMPSON 12. HEZEKIAH IGOH 13. UGBANA GOGO 14. CHRTISTIAN GILBERT 15. PETERSON UBULOM 16. GOGO PETERSON 17. PETER A. PETER 18. GOGO JESSY 19. ATA-EJIT REUBEN 20. MONDAY EVANS RESPONDENT(S)

RATIO

IMPORTANCE OF THE RULES OF COURT; EFFECT OF NON-COMPLIANCE WITH THE PROVISION OF THE RULES OF THE COURT

In OJUKWU V ONYEADOR (1991) 7 NWLR (prt 203) 286, TOBI, JCA (as he then was) emphasized the importance of the Rules of Court at page 321, paras, B – G thus: “Rules of Court are meant to be obeyed. They are not written for fun of it, as rules qua subsidiary legislation, they should be obeyed. Obedience, the very pious religious mind, says is the first law in heaven. So also in our Courts of law established for the egalitarian promotion of the administration of justice in general and the Rules of law in particular. In the hierarchy of the administration of justice, the Court as the adjudicator stands at the apex of the system and commands enforcement of its rules, not in a soldering fashion but in the fashion of the age long built in traditions of inflicting penalty in the event of disobedience of its rules.” And for the purpose of determining the degree or level of penalty for non-compliance, the law has dichotomized, albeit not very cleanly and clearly between non-compliance which is curable and non compliance which is incurable. A non-compliance is said to be incurable when the non-compliance affects the roots, props, the foundations and the fundamentals of the case. In other words, once non-compliance affects the substance of the matter to the extent that the merits of the case are ruined beyond salvage, without doing grave injustice to the adverse party, then it is not possible to save the proceedings in favour of the party in default, or the party in blunder. As a matter of law, in such a circumstance, there is really nothing to save or salvage. On the other hand, a non-compliance is said to be curable, when the Court, in invocation of its discretionary jurisdiction, can deem the non-compliance as a mere irregularity and not a nullity. Non-compliance can be treated as a mere irregularity if it is periphery not tangible and essentially abstract. Non-compliance is curable if it is trivial and insignificant. In the case of curable, non-compliance with the rules the Court of law as the Court of equity that it is, will readily use the palliative of cost to cure transient, non-involving, unintentional, unorganized and not premeditated blunders which are a way of life of the human person because he is human.” Learned counsel for the appellant also contended that neither the Court nor parties can by inadvertence or agreement confer jurisdiction on the Court where it has none. It must also be stressed here that there is a difference between substantive jurisdiction and procedural jurisdiction. To assume substantive jurisdiction, the Court has to look at the reliefs sought in the writ of summons in order to determine whether the subject matter of the suit falls within the constitutional and statutory jurisdiction of the Court. On the other hand, where there is a complaint against the competence of the Court to entertain the suit because failure to comply with the rules of Court in my respectful view is a challenge to the procedural jurisdiction and or competence of the Court, rather than a challenge to its substantive constitutional or statutory jurisdiction to entertain the suit. Thus, where a Court has substantive jurisdiction but there is lack of competence due to a procedural hitch such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same. This is so because an infraction that robs a Court of its procedural competence rather than its substantive competence can be cured. See MOBIL PRODUCING (NIG) UNLIMITED V L.A.S.E.P.A. (2002) 18 NWLR (prt 798) 1 ETIOSA L. G. V JEGEDE (2007) 10 NWLR (prt 1043) 537, RFG LTD V SKYE BANK PLC (2013) 4 NWLR (prt 1343) 251 and STABILINI VISINONI LTD V MALLINSONG SPARINESS LTD (2014) 12 NWLR (prt 1420) 134. Also in MARINE MANAGEMENT ASSOCIATES INC V NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (prt 1333) 454 at 540 – 541 the Supreme Court had considered non-compliance with the provisions of the Federal High Court Rules as well as the effect thereof as provided in Order 3 Rule 1 (1) of the 2004 Rules which was similar to Order 51 Rule (1) of the 2009 Rules and concluded that the failure to comply with the rules is an irregularity which would not nullify the proceeding or judgment or order of the Court. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ESSENCE OF A REPRESENTATIVE ACTION; WHEN CAN A REPRESENTATIVE ACTION BE INSTITUTED

The essence of a representative action is to curtail multiplicity of suits to save costs etc, provided that the persons being represented and the person representing them have the same interest in the cause or matter. Thus, a representative suit would be deemed in order if there is common interest or a common grievance, and the relief sought is such as would be for the benefit of all sought to be represented by the plaintiff. See OGAMBIOBA V OGEHERE (1961) ALL NLR 59. The provision of Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2009 specifically deals with representative action and it provides thus:- “(1) Where there are numerous persons having the same interest in one suit, one or more persons may sue or be sued on behalf of or for the benefit of all persons so interested.” I have right from the onset reproduced the claim of the respondents as plaintiffs at the Trial Court vis-à-vis their reliefs. The respondents are numerous fishing groups, suing the appellant for damages allegedly done to their respective fishing rights through the negligence of the appellant. When a group or class or persons sought to be represented in a suit are easily identifiable and have common purpose as in this case, they can institute a suit in a representative capacity to seek remedy in a Court of law. See ELF PET. (NIG) LTD V UMAH (2018) 11 NWLR (prt. 1628) 428 at 452. It is also settled based on plethora of judicial decisions that the rule on representative action is a rule of convenience and should not be rigidly applied. Also the rules governing representative action being a rule of convenience, must be treated with some air of flexibility and liberality. See EJEZIE V NWABUEZE (2008) 4 SCNJ 173, ANATOGU V A.G., OF EASTERN CENTRAL STATE (supra) and SPDC V GBENEYEI & ORS (2019) LPELR – 47819. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHO CAN CHALLENGE THE CAPACITY OF A PLAINTIFF OR PLAINTIFFS TO INSTITUTE A REPRESENTATIVE ACTION

Once the plaintiff or plaintiffs expressed in the writ or statement of claim that the action was brought in a representative capacity, it is prima facie, though not conclusive evidence of authority to his or their group. And it is only a member of that group, family or community that can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff or plaintiffs purport to represent to challenge his or their authority. See NDUKA V EZEWAKU (2001) 6 NWLR (prt 709) 494 SPDC V EDAMKUE(2009) 14 NWLR (prt 1160) 1 and ELF PET. (NIG) LTD V UMAH (supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ESSENCE OF FAIR HEARING

The principle of fair hearing is enshrined in Section 36 (1) of the 1999 Constitution (as amended) which provides as follows: “In the determination of his civil rights and obligation, including any question or determination, by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Thus, each party to a dispute before a Court of law or any other Tribunal must be given fair hearing not only to allow each to state his own case in Court or before a Tribunal but also give each party notice of the date of hearing and place of hearing. In DONATUS NDU V STATE (1990) 7 NWLR (prt 164) 550 at 578 NNAEMEKA – AGU JSC, stated the law succinctly thus: “The very essence of fair hearing under Section 33 of the Constitution is a hearing which is fair to both parties to the suit be they plaintiffs or defendants or prosecutors and defence. The section does not contemplate a standard of justice which is based in favour of one party and to the prejudiced of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the conflict.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.

POSITION OF THE LAW REGARDING THE BASIS FOR THE REQUIREMENT OF GIVING OF PARTICULARS OF SPECIAL DAMAGE

The basis for the law requiring the giving of particulars of special damage is to allow the other party know the case against it so as to eliminate any element of surprise. The main function of particulars is to give the other party notice of all necessary particulars in the claim or defence so as to avoid taking the other party by surprise which may assume one of the three forms namely: (i) Better particulars of any claim, defence or other matter pleaded; (ii) A statement of the nature of the case relied upon, or (iii) Both such particulars and statement. The bottom line of it all is the fairness of the trial and the need to enable the other side prepare his case and evidence at the trial. See ATTORNEY GENERAL BENDEL SATE V AIDEYAN (1989) 4 NWLR (prt 718) 646 at 678 and MARINE MANAGEMENT ASSOCIATES INC. V NATIONAL MARITIME AUTHORITY (supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

POSITION OF THE LAW WHERE A PARTY PLEADING OMITS OR NEGLECTS TO GIVE ANY OR SUCH FURTHER OR BETTER PARTICULARS, WHICH OUGHT TO HAVE BEEN GIVEN

In OJO OGBEMUDIA EGOLOR V IDEMUDIA IDAHOSA (1992) 2 NWLR (Prt 223) 323 at 334, this Court has held thus:- “It has to be pointed out if the particulars of special damages were not given in the respondent’s amended statement of claim, it was open to the appellant to demand such particulars and not wait until judgment had been given against him before raising the issue. The legal position is that the remedy available to a defendant presented with insufficient particulars in the plaintiff’s pleadings is to apply for the proper further and better particulars of the damage alleged.” See also the judgment of this Court in Appeal No. CA/PH/555/2016 between MOBIL PRODUCING (NIG) UNLIMITED V CHIEF UBELEJIT EMMANUEL AYAUKO & ORS(unreported) delivered on 2/11/2018. On the effect of failure to request for further particulars, the Apex Court in ATTORNEY GENERAL OF BENDEL STATE V AIDEYAN (Supra), NNAEMEKA-AGU JSC of (blessed memory) at page 40 said:- “If a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right to apply for such particulars as he deems necessary. If he fails to apply, and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant herein was the defendant in suit NO FHC/UY/CS/62/2014 filed at the Federal High Court, Uyo, Akwa Ibom State. The respondents herein as plaintiffs before the Trial Court sued the appellant for themselves and on behalf of some fishing groups based in Iwofe, Elekokpon, Etekwut, Lagos, Anganasa Emeroke, Aperiafi, Wagilla, Opukalama, Utaewa, John Miller and Esene, all of Eastern Obolo and Ikot Abasi Local Government Areas of Akwa Ibom State and claimed the following reliefs:
1. The sum of N4,472,300,000.00 (Four Billion, Four Hundred and Seventy-two Million, Three Hundred Thousand Naira only) being damages or compensation payable to the plaintiffs fishing groups arising from the defendant’s May 1, 2010 Oil pipeline leakages and spillages from its pipelines linking USAN AND IDOHO OFFSHORE PRODUCTION platform to its Qua Iboe Export terminal located at Ibeno which caused the pollution and devastation of the plaintiffs environment, swaps, waters, air, creeks, fishing rights, nets, ponds and other proprietary interest due to the defendant’s

negligence which amount is made up as follows:-
FISHING GROUPS IN EASTERN OBOLO LOCAL GOVERNMENT
(i) Loss of fishing rights = N1,314,840,897,00
(ii) General damages at 50% of (i) N657,420,449.00
Total = N1,972,300,000.00
FISHING GROUPS IN IKOT ABASI LOCAL GOVERNMENT AREA
(i) Loss of fishing rights = N1,645,970,360.00
(ii) General damages at N50% of (i) = N822,985,180.00
Total = N2,500,000,000.00

Pleading were filed and exchanged but before the matter proceeded to trial, appellant filed a Notice of preliminary objection challenging the competence of the suit and urging the Court to strike it out. In a considered ruling delivered on 14/6/2016, learned trial judge dismissed the application.

Being dissatisfied, appellant filed this appeal vide a notice of appeal filed on 21/6/2016 which contains three grounds of appeal at pages 248-255 of the record.

In compliance with rules of this Court, briefs of argument were filed on behalf of the parties:
(1) Appellant brief of argument, settled by Mr. Ituah Imhanze and filed on 11/10/2016.
(2) The respondents’ brief of argument, settled by Omowumi O.

Komolafe Esq., and filed on 23/1/2019.
(3) Appellant’s reply brief filed on 20/3/2019.
(4) List of additional authority filed on 4/4/2019.

At the hearing of appeal on 23/1/2020, Charles Nwabulu Esq., leading Enitan Randle Esq., adopted and relied on the appellant’s brief of argument filed on 11/10/2016 together with appellant’s reply brief filed on 4/4/2019. Omowumi O. Komolafe, Esq. adopted and relied on the respondents’ brief of argument filed on 20/3/2019. The appellant distilled three issues for determination of this appeal. The three issues are as follows:
1. Whether waiver can be imputed on the Lower Court without an action expressed or implied to this effect (by reason of inadvertance).
2. Whether the inability of the plaintiffs/respondents to fulfil the laid down conditions for instituting a representative action is not a fundamental breach capable of denying the Court’s jurisdiction in the matter.
3. Whether the salient and unassailable principle of fair hearing was not infringed by the Lower Court when it condoned the lack of particularization of the plaintiff/respondents claim of special damages.

On their part, the respondents also formulated three identical issues thus:
1. Whether the respondents’ failure to comply with the rules of Court is a mere procedural irregularity which does not affect the jurisdiction of the Court?
2. Whether the respondents rightly instituted the action at the Lower Court having regards to the Fundamental principles governing suits in a representative capacity to activate the Court’s jurisdiction to entertain it?
3. Whether the appellant’s right to fair hearing was breached in the instant case?

In view of the seemingness of the two sets of issues, I intend to determine this appeal on the basis of the three issues formulated by the appellant, undoubtedly the owner of the appeal.

Proffering argument on the first issue, learned Counsel for the appellant submits that the failure of the respondents to file their counter affidavit in response to the appellant’s motion on notice dated April 30, 2015 until about a year after and without any attempt to regularize is a fundamental failure to comply with the requirement of Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009.

He also submits that the respondents’ failure to regularize their counter affidavit borders on procedural jurisdiction which the Trial Court had no business acting on those processes because they are not properly and validly before it. He referred to ESEU V THE PEOPLE OF LAGOS STATE (2014) 2 NWLR (prt 1390) 109 at 135 to the effect that a Court, cannot by omission or inadvertence act on a process that is of no legal value.

He submits further that the rules of Court are binding and compliance to the rules are compulsory. Thus, the Court has a duty to preserve the rules of Court and ensure compliance with it. Where as in the instant case, a precondition for the doing of an act has not been complied with; no act subsequent thereto can be regarded as valid because the act to which it is subject has not been done. He referred to BEN OBI NWABUEZE V JUSTICE OBI OKOYE (1988) 4 NWLR (prt 91) 664 at 668.

Learned counsel for the respondents on his part contends that the issue of the respondents’ filing their counter affidavit and written process out of time was never raised or canvassed at the Lower Court

and there is no evidence on record to show that the attention of the Court was ever drawn about the respondents’ counter affidavit and written address not being in compliance with the rules of Court. It was thus, submitted that it is the duty of the appellant to formally impeach the record of appeal if it is of the view that certain things happened in the trial Court which were not recorded otherwise this Court has no option but to rely on the record in determining the appeal as the allegations by the appellant are not supported by the record.

Still in argument, learned counsel submits that it is the duty of counsel to bring to the attention of the Trial Court of any wrong procedure which might affect his client’s interest. He referred to Order 51 Rule 1 of the Federal High Court Rules; SHEKSE V PLANKSHAK (2008) 15 NWLR (prt 1109) 105 at 109 and ODUA INVESTMENT CO. LTD V TALABI (1991) NWLR (prt 170) 761 in contending that a party who takes step in proceedings with knowledge of the alleged irregularity must be taken as having waived his right.

The appellant’s complaint on the first issue relates to the

alleged failure on the part of the respondents to respond appropriately to its motion on notice of April 30, 2015. The relevant provision of Order 26 Rules 5 of the Federal High Court (Civil Procedure) Rules 2009 provides that –
“5. A party on whom a motion has been served as per the preceding rules of this order and who intends to reply may do so by filing his written address in reply along with a counter affidavit if he so wishes and shall do so, not later than seven days from the service of the motion on him.”
At the expiration of time stated above, a party may however apply for an extension to file his processes in accordance with Order 48 Rule 4 of the Rules which states:-
“4. The judge may as he deems fit and either before or after the expiration of the time appointed by these rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceedings provided that any party who defaults in performing an act within the time authorized by the judge or under these Rules shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each day of such default at

the time of compliance.”
Finally, Order 51 Rules (1) thereof provides that where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, being a failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form, content or in any other respect that failure may be treated as an irregularity and if so treated will not nullify the proceedings or any document, judgment or order therein.
Rules of Court as can be seen from the above must prima facie be obeyed and where a party fails to comply with the rules and applies to a Court for extension of time within which to take a procedural step, that party must put before the Court some material upon which the Court can base its discretion to extend the time, since he is asking for an indulgence.
In the present case, the issue is not that of seeking an indulgence to take procedural step but that of failure to even ask for the indulgent. In OJUKWU V ONYEADOR (1991) 7 NWLR (prt 203) 286, TOBI, JCA (as he then was) emphasized the

importance of the Rules of Court at page 321, paras, B – G thus:
“Rules of Court are meant to be obeyed. They are not written for fun of it, as rules qua subsidiary legislation, they should be obeyed. Obedience, the very pious religious mind, says is the first law in heaven. So also in our Courts of law established for the egalitarian promotion of the administration of justice in general and the Rules of law in particular. In the hierarchy of the administration of justice, the Court as the adjudicator stands at the apex of the system and commands enforcement of its rules, not in a soldering fashion but in the fashion of the age long built in traditions of inflicting penalty in the event of disobedience of its rules.”
And for the purpose of determining the degree or level of penalty for non-compliance, the law has dichotomized, albeit not very cleanly and clearly between non-compliance which is curable and non compliance which is incurable. A non-compliance is said to be incurable when the non-compliance affects the roots, props, the foundations and the fundamentals of the case. In other words, once non-compliance affects the

substance of the matter to the extent that the merits of the case are ruined beyond salvage, without doing grave injustice to the adverse party, then it is not possible to save the proceedings in favour of the party in default, or the party in blunder. As a matter of law, in such a circumstance, there is really nothing to save or salvage.
On the other hand, a non-compliance is said to be curable, when the Court, in invocation of its discretionary jurisdiction, can deem the non-compliance as a mere irregularity and not a nullity. Non-compliance can be treated as a mere irregularity if it is periphery not tangible and essentially abstract. Non-compliance is curable if it is trivial and insignificant. In the case of curable, non-compliance with the rules the Court of law as the Court of equity that it is, will readily use the palliative of cost to cure transient, non-involving, unintentional, unorganized and not premeditated blunders which are a way of life of the human person because he is human.”
Learned counsel for the appellant also contended that neither the Court nor parties can by inadvertence or agreement confer jurisdiction on the Court

where it has none. It must also be stressed here that there is a difference between substantive jurisdiction and procedural jurisdiction. To assume substantive jurisdiction, the Court has to look at the reliefs sought in the writ of summons in order to determine whether the subject matter of the suit falls within the constitutional and statutory jurisdiction of the Court. On the other hand, where there is a complaint against the competence of the Court to entertain the suit because failure to comply with the rules of Court in my respectful view is a challenge to the procedural jurisdiction and or competence of the Court, rather than a challenge to its substantive constitutional or statutory jurisdiction to entertain the suit. Thus, where a Court has substantive jurisdiction but there is lack of competence due to a procedural hitch such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same. This is so because an infraction that robs a Court of its procedural competence rather than its substantive competence can be cured. See MOBIL PRODUCING (NIG) UNLIMITED V L.A.S.E.P.A. (2002) 18 NWLR (prt 798) 1,

ETIOSA L. G. V JEGEDE (2007) 10 NWLR (prt 1043) 537, RFG LTD V SKYE BANK PLC (2013) 4 NWLR (prt 1343) 251 and STABILINI VISINONI LTD V MALLINSONG SPARINESS LTD (2014) 12 NWLR (prt 1420) 134. Also in MARINE MANAGEMENT ASSOCIATES INC V NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (prt 1333) 454 at 540 – 541 the Supreme Court had considered non-compliance with the provisions of the Federal High Court Rules as well as the effect thereof as provided in Order 3 Rule 1 (1) of the 2004 Rules which was similar to Order 51 Rule (1) of the 2009 Rules and concluded that the failure to comply with the rules is an irregularity which would not nullify the proceeding or judgment or order of the Court.
In the instant case, the non-compliance is curable which the Trial Court in invocation of its discretion can deem same as a mere irregularity and not a nullity. It is as well a procedural infraction that could be waived by the trial Court, and thus, the first issue is resolved against the appellant.

On the second issue, learned counsel submits that the persons that are to be represented must have the

same interest in one cause or matter. Thus, mere identity or similarity of circumstance in litigation may not necessarily result in the parties thereto having interest and common grievance. He submits further that the respondents in contravention of the settled requirements of representative action had lumped together claims of the several individuals from twelve different communities and spanning through the two different Local Governments without showing their several, individual interests and reliefs. He referred to CHIEF UGBOR OFIA & ORS V CHIEF ISAIAH MBA & ORS (2006) 11 NWLR (prt 992) 652 at 666, DURBAR HOTELS PLC V ITYOUGH (2011) 9 NWLR (prt 1251) 41 at 56, IDISE V WILLIAMS INT. LTD (1995), 1 SCNJ 120 on the essential requirements for suing in a representative capacity.

It was also submitted on behalf of the appellant that the failure to fulfill a condition precedent is fundamental and touches on the jurisdiction and competence of the trial Court to hear and determine the respondents’ suit. In aid, learned counsel relied on the authority of MADUKOLU V NKEMDILIM (1962) 2

NSCC 374 to the effect that all conditions precedent to the institution of a representative suit must necessarily be complied with to activate the jurisdiction of the Court.

On the part of the respondents, it was submitted that the competence of a suit and the jurisdiction of the Court are determined solely by the plaintiff’s claims and the nature of the reliefs. And that from the nature of the respondents’ reliefs, the Trial Court has the requisite jurisdiction to entertain the suit because the respondents have a common interest with common grievances and seeking for the same reliefs. Learned counsel referred to Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2009 and the cases of OLATUNJI V REGISTERED CORPORATIVE SOCIETY (1968) NMLR 393, AMAJIDEOGU V ONAONAKU (1998) 2 NWLR (prt 787) 614 and ADELEKE V ANIKE (2006) 16 NWLR (prt 1004) 131.

Still in argument, learned counsel submits that representative action is regarded as a rule of convenience only which does not requires strict and rigid compliance. Thus, Courts are enjoined to treat representative action with

flexibility in order to achieve its object as a tool of convenience in the administration of justice. He referred to ADEFULU V OYESILE (1989) 5 NWLR (prt 122) 396, CHIEF P. A. ANAJOGU & ORS V ATTORNEY GENERAL, EAST CENTRAL STATE NIGERIA & ORS (1976) 10 NSCC 678 and DR. AUGUSJINE MOZIE & 6 ORS V CHIKE MBAMALU & 3 ORS 466 (2008) 12 NWLR (prt 1003) at 494.

persons may sue or be sued on behalf of or for the benefit of all persons so interested.”
I have right from the onset reproduced the claim of the respondents as plaintiffs at the Trial Court vis-à-vis their reliefs. The respondents are numerous fishing groups, suing the appellant for damages allegedly done to their respective fishing rights through the negligence of the appellant. When a group or class or persons sought to be represented in a suit are easily identifiable and have common purpose as in this case, they can institute a suit in a representative capacity to seek remedy in a Court of law. See ELF PET. (NIG) LTD V UMAH (2018) 11 NWLR (prt. 1628) 428 at 452.
It is also settled based on plethora of judicial decisions that the rule on representative action is a rule of convenience and should not be rigidly applied. Also the rules governing representative action being a rule of convenience, must be treated with some air of flexibility and liberality. See EJEZIE V NWABUEZE (2008) 4 SCNJ 173, ANATOGU V A.G., OF EASTERN CENTRAL STATE (supra) and SPDC V GBENEYEI & ORS

(2019) LPELR – 47819.
I have stated that the respondents by their claims and reliefs showed their representative status and thus validly commenced the action against the appellant. Once the plaintiff or plaintiffs expressed in the writ or statement of claim that the action was brought in a representative capacity, it is prima facie, though not conclusive evidence of authority to his or their group. And it is only a member of that group, family or community that can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff or plaintiffs purport to represent to challenge his or their authority. See NDUKA V EZEWAKU (2001) 6 NWLR (prt 709) 494 SPDC V EDAMKUE(2009) 14 NWLR (prt 1160) 1 and ELF PET. (NIG) LTD V UMAH (supra).

In the instant case, the appellant not being a member of the group suing, cannot justifiably challenge the authority of the representation of the group. The second issue is also resolved against the appellant.

On the third issue, the appellant contends that respondents’ failure to particularize their claim for special damages and the

decision reached by the Trial Court without considering same breached the appellant’s right to fair hearing. Learned appellant’s submission in this regard is that the Lower Court’s dismissal of the appellant’s motion on notice dated April 30, 2015 without considering the issues raised therein on the respondent’s failure to particularize its claim for special damages is a breach of fair hearing. He referred to BRAWAL SHIPPING (NIG) LTD V F. I. ONWADIKE CO. LTD (2011) NWLR (prt 678) 387 at 403, KOTOYE V CENTRAL BANK OF NIGERIA (1989) 1 NWLR (prt 98) 419 at 448, ONYEKWULUJE V BENUE STATE GOVERNMENT (2005) 8 NWLR (prt 928) 614 at 642 and hosts of other cases.

In response to the above, the respondents contends that the particularization of the special claim was done in the valuation report prepared by a firm of valuers and which was duly pleaded in paragraph 23 (b) of the statement of claim served on the appellant along with writ of summons and statement of claim including copies of every document to be relied at trial in compliance with Order 3 Rule 3 (1) of the Federal High Court (Civil Procedure) Rules 2009.

Learned counsel therefore submits that pleadings contains only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence but not the evidence by which these facts are to be proved. He referred to ODUNSI V BAMGBALA (1995) 1 NWLR (prt 374) 641 at 655, AKINOLA V UNILORIN (2004)11 NWLR (prt 885) 616 at 649 – 650 and MARINE MANAGEMENT ASSOCIATE INC. & ANOR V NATIONAL MARITIME AUTHORITY (Supra) to the effect that the valuation report averred in the pleadings forms integral part of the pleadings filed by the respondents as plaintiffs on 14/7/2014.

In further argument, learned counsel submits that the main function of particulars is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking the other party by surprise. At any rate, the determination of the claim for special damages on the parties’ pleadings alone may not be prudent because of the strict proof requirements. He referred to CALABAR EAST CO-OPERATIVE V IKOT (1999) 14 NWLR (prt 638) 225 at 241.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The appellant’s grouse in this issue is centered on non-particularization of the special damages claimed by the respondents at the Trial Court, which failure the appellant alleges has breached its right to fair hearing.
The principle of fair hearing is enshrined in Section 36 (1) of the 1999 Constitution (as amended) which provides as follows:
“In the determination of his civil rights and obligation, including any question or determination, by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Thus, each party to a dispute before a Court of law or any other Tribunal must be given fair hearing not only to allow each to state his own case in Court or before a Tribunal but also give each party notice of the date of hearing and place of hearing. In DONATUS NDU V STATE (1990) 7 NWLR (prt 164) 550 at 578 NNAEMEKA – AGU JSC, stated the law succinctly thus:
“The very essence of fair hearing under Section 33 of the Constitution

is a hearing which is fair to both parties to the suit be they plaintiffs or defendants or prosecutors and defence. The section does not contemplate a standard of justice which is based in favour of one party and to the prejudiced of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the conflict.”
In this case, the appellant’s complaint is on the failure to particularize the special damages and also reaching a decision by the Trial Court without considering the issue of non-particularization of the said special damages of the respondent. The basis for the law requiring the giving of particulars of special damage is to allow the other party know the case against it so as to eliminate any element of surprise. The main function of particulars is to give the other party notice of all necessary particulars in the claim or defence so as to avoid taking the other party by surprise which may assume one of the three forms namely:
(i) Better particulars of any claim, defence or other matter pleaded;
(ii) A statement of the nature of the case relied upon, or<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(iii) Both such particulars and statement.
The bottom line of it all is the fairness of the trial and the need to enable the other side prepare his case and evidence at the trial. See ATTORNEY GENERAL BENDEL SATE V AIDEYAN (1989) 4 NWLR (prt 718) 646 at 678 and MARINE MANAGEMENT ASSOCIATES INC. V NATIONAL MARITIME AUTHORITY (supra).
I have elsewhere in this judgment reproduced the respondents’ claims for special damages and also in paragraph 23 (3) of the statement of claim, respondents averred:-
“(b) EZE IHEKWABA & CO (a firm of Estate Surveyors and Valuers) for the purpose of carrying out a detailed valuation and assessment of the losses and damages occasioned to the plaintiffs by the said oil spillages and to indicate the fair and reasonable compensation values and heads of claim due and payable to the plaintiffs. The plaintiffs took the said Estate Surveyor and Valuer to their fishing environment, water, rivers, fishing settlements and where they carry out their finding and other proprietary rights which were adversely affected by the said oil spillages. The said firm of Estate Surveyors and

valuers duly carried out their assignment and produced and submitted to the plaintiffs a comprehensive detailed written report dated 21/10/2010 which is hereby pleaded and will be relied upon at the trial of this suit in proof of its contents and facts averred herein.”
The pertinent question here is whether by the above pleaded facts, the appellant is still in quandary as to the nature of their claim. This question must therefore be answered in the negative as the said valuation report which contains the details of the respondents’ claim was already front-loaded in accordance with Order 3 Rule 3 (1) of the extant Rules of Court. Again, the failure of the respondents to particularize the special claims can still be alleviated by the appellant if it demand for further and better particulars. In OJO OGBEMUDIA EGOLOR V IDEMUDIA IDAHOSA (1992) 2 NWLR (Prt 223) 323 at 334, this Court has held thus:-
“It has to be pointed out if the particulars of special damages were not given in the respondent’s amended statement of claim, it was open to the appellant to demand such particulars and not wait until judgment had been

given against him before raising the issue. The legal position is that the remedy available to a defendant presented with insufficient particulars in the plaintiff’s pleadings is to apply for the proper further and better particulars of the damage alleged.”
See also the judgment of this Court in Appeal No. CA/PH/555/2016 between MOBIL PRODUCING (NIG) UNLIMITED V CHIEF UBELEJIT EMMANUEL AYAUKO & ORS(unreported) delivered on 2/11/2018.
On the effect of failure to request for further particulars, the Apex Court in ATTORNEY GENERAL OF BENDEL STATE V AIDEYAN (Supra), NNAEMEKA-AGU JSC of (blessed memory) at page 40 said:-
“If a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right to apply for such particulars as he deems necessary. If he fails to apply, and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal.”
In the light of the above, I cannot but agree entirely with respondents’ counsel submission that appellant’s right to fair

hearing was not breached in any way. This issue is as well resolved against the appellant.

In the final analysis, the appeal is lacking in merit and same is according dismissed. It is however pertinent to state that the facts and circumstances of this appeal are similar with the facts in appeals Nos. CA/C/223/2016 and CA/C/224/2016, heard and reserved for judgment by this same panel. At the hearing of this appeal learned counsel for the appellant, Charles Nwabulu had prayed that the judgment in this appeal shall binds the sister appeals NO CA/C/223/2016 and CA/C/224/2016, which suggestion was consented to by learned counsel to the respondents, Miss O. O. Komolafe. Consequent upon the said agreement, this judgment also binds and suffice as the judgment in appeal NO. CA/C/223/2016
Between:
MOBIL PRODUCING NIGERIA UNLIMITED – APPELLANT,
VS
1. UBONG EGERE
2. UBONG UBONG E.
3. ANIEKAN UBONG
4. DR. INYANG NELSON
5. IETDUNG IKAPAISONG
6. INSIKAN EKERE
7. ISAAC SOLOMON
8. KINGSLEY NATHANIEL
9. DR. THOMPSON NATHAN
10. UDEME ENIN
(for themselves and as representing other members of EKERE,

UBONG, EKERE, NELSON, ETEIDUNG, UMOR, KINGSLEY, SOLOMON, NATHANIEL, THOMPSON, UDEME AND ENIN Fishing Families all in UTAIWA OPUKALAMA JOHNMILLA BOATYARD, ATC AND WAGIDA all in Ikot Abasi Local Government of Akwa Ibom State, Nigeria) – RESPONDENTS
AND
APPEAL NO. CA/C/224/2016
BETWEEN:
MOBIL PRODUCING NIGERIA UNLIMITED – APPELLANT
VS
1. IGBANAM URANG
2. ONIKAN KASOL ISRAEL
3. AWAJIONYI SAMUEL
4. CHIEF EPHRAIM NTE-ETETE
5. RICHARD EPEKOT
6. OJUAJA JOB
7. CHIEF LASBERY W.EBIRENEIRAGWUNG
8. SHEDRACK SHEDRACK
9. FELIX MBABA
10. CHIEF LAWRENCE ENEFORIOKUMA (JP)
11. OBADIAH LAWRENCE
12. GOGO E. ALBERT
13. …OWOH
14. FAWARI ABEL OTUOKPOM
15. HEZEKIAH HEZEKIA
16. PETER NTE
(For themselves and on behalf of the entire families of URANG, ISRAEL, SAMUEL, NTE-ETETE, KPEKOT, JOB EBIRENE, SHEDRACK, MBABA, HEZEKIAH, NTE, EREFORIOKUMA, LAWRENCE, ALBERT, OWOH and OJUOKPOM all in ASARAMAIJA, IWOMA AMAJOB (INYONGORONG), IBOJOKPON – OBOLO AND EBUKUMA – IJA in ANDONI LOCAL GOVERNMENT AREA OF RIVER STATE) – RESPONDENTS

The above listed appeals

are accordingly dismissed. The respective cases namely Suits Nos. FHC/UY/CS/61/2014, FHC/UY/CS/66/2014 and FHC/UY/CS/62/2014 are remitted to the Federal High Court sitting in Uyo for expeditious completion of trial.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. SHUAIBU JCA.

I agree with the reasoning and conclusion. I also agree that the dismissal of Appeal No. CA/C/225/2016 binds the dismissal of the sister appeals Nos. CA/C/223/2016 and CA/C224/2016.
I abide with the consequential orders on the three appeals.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, M. L. SHUAIBU, JCA afforded me the privilege of reading in advance the judgment just delivered and I agree entirely with the resolution of the issues settled for determination.

I have nothing more to add. I also abide by the orders made therein.

Appearances:

Charles Nwabulu, Esq. with him, Enitan Randles
For Appellant(s)

Miss. O. O. Komolafe For Respondent(s)