MOBIL PRODUCING NIGERIA UNLIMITED v. ELDER EME DAVIDSON & ANOR (2019)

MOBIL PRODUCING NIGERIA UNLIMITED v. ELDER EME DAVIDSON & ANOR

(2019)LCN/13701(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/PH/151/2017

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria

Between

MOBIL PRODUCING NIGERIA UNLIMITED Appellant(s)

AND

1. ELDER EME DAVIDSON
2. MISS PULO FUBARA
(For themselves and as representing the other members of Lolo-Kiri community in the Akuku-Toru L.G.A of River State) Respondent(s)

RATIO

DEFINITION OF A “CAUSE OF ACTION”

What then is a cause of action? It is the facts which establish or give rise to a right of actions that is the factual situation that gave rise to a judicial relief. In BELLO V. AG OYO STATE (1986) LPELR 764 @ 81, Karibi ? Whyte, JSC explained that:-
?A cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as given rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim?.
See THOMAS V. OLUFOSOYE (1986) LPELR 3237; EGBE V. ADEFARASIN (1987) LPELR 1032; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 AND UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT 807) 359. PER LAMIDO, J.C.A.

THE DOCTRINE OF CONTINUOUS DAMAGE

?The doctrine of continuous damage or injury relates to cases where something has been brought on land and wrongfully or negligently left there and it continues to cause damage or injury to the land and its owners. This act in itself will give rise to actions de die in diem so long as it lasts. In these types of situations, the Limitation Period will be frozen until after the cessation of the damage or injury. See OBUEKE V. NNAMCHI (2012) 12 NWLR (PT 1314) 327; AG RIVERS STATE V. AG BAYELSA STATE (2012) 6-7 MJSC (PT 3); OBOT V. SPDC LTD (2013) LPELR 20704; GULF OIL LTD V. OLUBA (2002) 17 NWLR (PT 780) 92 and ADEPOJU V. OKE (1999) 2 NWLR (PT 594) 154. PER LAMIDO, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

On issue two relating to the validity of service of originating processes on the appellant at its operational base rather than its head office, it should be noted that service of an originating process or writ of summons is a condition precedent to the exercise of Jurisdiction by the Court out of whose registry the process or writ was issued. See SKEN CONSULT (NIG) LTD & ANOR V. UKEY (1981) 1 SC 6; ADEIGBE & ANOR V. GUTHRIE (NIG) LTD (1993) 4 SCNJ and AUTO IMPORT EXPORT V. ADEBAYO & ORS (2002) 1 LPELR 643.
The law is well settled that service of originating process on a party to a proceeding is a fundamental step in the process of adjudication by a Court of law. It is what triggers or gives vent to the jurisdiction of the Court to entertain the matter and make valid and subsisting orders. It is not a discretional matter on the part of the trial Court. This is so because where the originating process is not served in accordance with the law, it deprives the Court of the requisite Jurisdiction to entertain the matter. The challenge must however be made timeously. In MARK V. EKE (2004) 5 NWLR (PT 865) 54; Musdapher, JSC (of blessed Memory) held that:
?Service of the process especially originating process is an essential condition for the Court to have competence or the jurisdiction to entertain the matter. Further, failure to comply with this condition would render the whole proceeding including Judgment entered and all subsequent proceedings based thereon wholly irregular, null and void.?
See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; UBA PLC V. AJILEYE (1999) 13 NWLR (PT 633) 116 and SKEN CONSULT NIG LTD V. UKEY (1981) NSCC. PER LAMIDO, J.C.A.

WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND PROVEN

THE FUNDAMENTAL RIGHT OF FAIR HEARING

The right to fair hearing is a fundamental constitutional right guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Fair hearing in the con of Section 36(1) of the Constitution encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice ? audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. Where the right to fair hearing is breached particularly in trials, the whole proceeding is rendered null and void. See OTAPO V. SUNMONU & ORS (1987) LPELR 2822; KOTOYE V. CBN & ORS (1989) LPELR 1707 KIM V. STATE (1992) LPELR 1691 and BABA V. NIGERIAN CIVIL AVIATION & ANOR (1991) LPELR 692.
Fair hearing has some well known attributes and any trial that did not adhere to the well known and accepted attributes will be invalidated In S & D CONSTRUCTION CO LTD V. AYOKU & ANOR (2011) LPELR 2965 @ 32-32; Adekeye, JSC held ? that:
?The right of fair hearing is a constitutional right enshrined in Section 36 of the 1999 Constitution. The right to fair hearing is a very essential right for a person to secure justice. The basic attributes of fair hearing include (a) that the Court should hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudiced to any party in the case (b) that the Court or tribunal gives equal treatment, opportunity and consideration to all concerned (c) that the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing (d) that having regard to/at the circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have done?. See USANI V. DUKE (2004) 7 NWLR (PT 871) 116; FAGBULE V. RODRIGUES (2002) 7 NWLR (PT 765) 18 and BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 622) 290. PER LAMIDO, J.C.A.

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Port Harcourt Judicial Division delivered on the 6th February 2017 by Agomoh, J. The Plaintiff filed a representative action and claimed the following reliefs against the defendant: –
(i) A DECLARATION that the effect of the crude oil spillage is still continuing till today in the Plaintiff community, the defendant allowed the aforesaid spillage to occur, they refused to clean up the crude brought into the Plaintiff community, as a result of the spillage, the remnant of the crude oil are still visible on the Plaintiff community sea creeks and substantial part of their land/Properties, this has continued to devalue the plaintiffs land/Properties causing enormous damages to the plaintiffs until now.
?(ii) The sum of N1,013,187.00 (One Million Thirteen Thousand, One Hundred and Eighty Seven Naira) being special damages suffered by the plaintiffs as a result of the crude oil spillage which occurred at the defendants Idoho Production Platform, Eket, Akwa Ibom State on or about 12/1/2018 and which caused

extensive damages on the plaintiffs fishing culture, materials, activities and businesses and since the effect of the crude oil spillage is still continuing till today in the plaintiffs community, the defendant allowed the aforesaid spillage to occur, they refused to clean up the crude brought into the plaintiffs community as a result of the spillage, the remnant of the crude oil are still visible on the plaintiffs community sea/creeks and substantial part of their land/Properties, this has continue to devalue the plaintiff?s land/Properties, causing enormous damages to the plaintiffs up till now.
(iii) The sum of N9, 216, 813.00 (Nine Million, Two Hundred and Sixteen Thousand, Eight Hundred and Thirteen Naira) being general damages for negligence committed by the defendant through its servants or agent when they negligently allowed crude oil from its Idoho Production Platform, Eket, Akwa Ibom State on or about 12/1/1998 and which caused extensive damages on the plaintiffs community, fishing culture, materials, activities and businesses, since the effect of the crude oil spillage is still continuing till today in the plaintiffs community, the

defendant allowed the aforesaid spillage to occur, they refused to clean up the crude brought into the plaintiffs community as a result of the spillage, the remnant of the crude oil are still visible on the plaintiffs community sea/creeks and substantial part of their land/Properties, this has continued to devalue the Plaintiffs land/Properties causing enormous general damages to the Plaintiffs until now.

Upon settlement of pleadings, the defendant filed a motion on notice challenging the Jurisdiction of the trial Court to entertain the claim on grounds inter alia, that the suit is incompetent as the action was statute barred and that the service of the originating process on the defendant was not effected in accordance with the law. After hearing argument from both counsel, in his ruling, the learned trial Judge resolved all the issues against the defendant, held the application to be unmeritorious and struck it out.

The defendant was dissatisfied with the ruling and thus appealed to this Court on 15/02/2017. The notice of appeal contained four grounds of appeal. The said grounds are hereunder reproduced without their particulars, thus:

GROUND 1
The Court below erred in law when it held that the plaintiffs suit was not statute barred in view of the Provisions of the Limitation Act 1623 (a statute of General Application).
GROUND 2
The lower Court erred in law when it held that service on the appellant at its operational base, c/o km 16 Port Harcourt Aba Expressway, Off Eleme Junction, Port Harcourt, Rivers State, Nigeria, is a proper service and consequently assumed Jurisdiction to entertain the suit.
GROUND 3
The lower Court erred in law and thereby breached the Appellant?s right to fair hearing when it held that the Respondent?s failure to supply the particulars of special damages does not invalidate the claim of the respondents.
GROUND 4
The lower Court misdirected itself when he held that the plaintiffs (now the respondent) writ of summons which was taken out by a person not qualified and entitled to practice law in Nigeria was not incompetent and proceeded to assume Jurisdiction to hear the suit.

?The appellants filed its brief of argument on 25/04/2017 but it was deemed filed on 13/06/2018. The appellant also filed a

reply brief on 28/06/2017 which was also deemed filed 13/06/2018. The respondent filed their brief of argument on 08/06/17 and the said brief was deemed filed on 13/06/2018.

Against the four grounds of appeal, the appellant formulated four issues for determination. These issues are:-
(1) Whether the Court was wrong when it held that the Respondents? suit was not statute barred in the light of the provision of the Limitation Act, 1623 (a Statute of General Application) in its ruling of February 6,2017 (Ground 1).
(2) Whether the lower Court was not wrong when it held that service of the originating processes on the Appellant at the operational base c/o km 16 Port Harcourt Aba Expressway, off Eleme Junction, Port Harcourt, Rivers State, Nigeria was proper service (Ground 2).
(3) Whether the lower Court was not wrong when it held that the Respondents? failure to supply the particulars of special damage does not invalidate the claim of the Respondents (Ground 3).
(4) Whether the lower Court was not wrong when it held that the Respondents? writ of summons which was taken out by a person not qualified and entitled to

Practice Law in Nigeria was not incompetent. (Ground 4).

The respondent adopted all the four issues for determination as formulated by the appellant. The Court will also adopt the issues for determination formulated by the appellant in the determination of this interlocutory appeal.

Arguing issue one, learned counsel for the appellant submitted that where a statute provides for the institution of an action within a prescribed period, the action should be brought within the time prescribed by such statute and failure to do so defeats the claim as the action will be said to be statute barred. He referred to IBRAHIM V. LAWAL (2015) 17 NWLR (PT 1489) 522; HUMBE V. AG BENUE STATE (2000) 3 NWLR (PT 649) 419; SYLVA V. INEC (2015)16 NWLR (PT 1486) 630; AREMO II V. ADEKANYE (2004) 13 NWLR (PT 891) 572; EBOIGBE V. NNPC (1994) 5 NWLR (PT 347) 649; ODUBEKO V. FOWLER (1993) 7 NWLR (PT 308) 637 and SANDA V. KUKAWA (1991) 2 NWLR (PT 174) 379.

?Learned counsel stated further that the respondents had 6 years within which to bring their action against the appellant but chose to commence the action in 2016, 18 years after the alleged oil spill occurred

alleging that it is a continuing act which argument is stale, illogical and an afterthought. He stated that equity aids the vigilant and not the indolent.

He also stated that the action being statute barred goes to the Jurisdiction of the Court. He referred to MADUKOLU & ORS V. NKEMDILIM (1962) 2 NSCC; SKEN CONSULT (NIG) LTD V. UKEY (1981) NSCC; WAPC V. ADEYERI (2003) 12 NWLR (PT 835) 517 and PLATEAU CONST. LTD V. AWARE (2014) 6 NWLR (PT 1404) 539. He stated further that since the trial Court agreed that the action was statute barred, it was wrong of the Court to dismiss the objection as it did. Counsel urged the Court to resolve this issue in favour of the appellant and against the respondents.

On issue two, learned counsel submitted that proper service of Court process is sine qua non for a Court to entertain any matter before it. It is fundamental as it activates the jurisdiction of the Court and where there is any defect as to the way and manner a Court process has been served, it fundamentally affects the jurisdiction of the Court and such can neither be waived nor washed away. He also stated that failure to effect service in

accordance with the relevant statutes and rules of Court will invalidate the jurisdiction of a Court. He referred toSKEN CONSULT V. UKEY (1981) SC 6; and MBADINUJU V. EZUKA (1994) 8 NWLR (PT 364).

Learned counsel further argued that Section 78 of the Companies and Allied Matters Act Cap C20, Laws of the Federation of Nigeria stipulates that the Court process shall be served on a company in a manner prescribed by the Rules of Court, i.e. Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009. He also stated that Section 78 of the CAMA has been interpreted by the Supreme Court in a number of decisions. He referred to MARK V. EKE (2004) 5 NWLR (PT 865) 54 and KRAUS THOMPSON ORG. LTD V. UNICAL (2004) 9 NWLR (PT 879) 631. He said that there are two requirements for a proper and effective service of Court?s process on a company and it is either by serving the registered or head office of the company or by serving on a director, trustee, secretary or other principal officer of the company. In the case at hand, service affected at the operational base of the appellant instead of its registered office is bad. He referred to

TONY ANTHONY (NIG) LTD V. NDIC (2011) 15 NWLR (PT 1269) 39; NGIGE V. ACHUKWU (NO 1) (2005) 3 WRN 114 and NEPA V. URUAKPA (2010) 12 NWLR (PT 1208). Counsel urged the Court to hold that service of the process on the appellant not at its registered office is bad in law. He also urged the Court to resolve this issue in favour of the appellant and against the Respondents.

On issue three, learned counsel submitted that the appellant was denied a fair hearing when the trial Court failed to properly consider the issue raised by the appellant on the Respondents? failure to particularize their claim for special damage. He referred to Order 13 Rule 33 (1) of the Federal High Court (Civil Procedure) Rules 2009;ADEDEJI & SONS MOTORS (NIG) LTD V. IMMEH & ANOR (1996) LPELR 14104: OKEKE V. OCHE (1993) LPELR 14622; ODUMOSU V. ACB LTD (1976)11 SC 55; AHMED V. CBN (2013) 2 NWLR (PT 1339) 542; ABI V. CBN (2012) 3 NWLR (PT 1286) 42 and ANAZODO V. PAZMECK INTER TRADE, (NIG) & ANOR (2008) 6 NWLR (PT 1084) 529. Counsel stated further that failure of the Respondents to particularize their claim for special damages has left the Appellant in the dark as to how the amount

claimed as special damages was arrived at.

Learned counsel stated that it is a breach of fair hearing when a party to a case is not given the right to demand the disclosure of the nature and of all relevant materials prejudicial to him. He referred to DANIEL V. FRN (2014) 8 NWLR (PT 1410) 510. This is so because the avoidance of surprise is the cardinal point upon which pleadings are hinged. By means of pleadings, each party gives a fair notice to the other of the case he intends to put up in Court. He referred to ACB LTD. V. GWAGWADA (1994) NWLR (PT 342) 25; OKAGBUE & ORS V. ROMAINE (1982) 5 SC 133; GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, NWAJI V. COASTAL SERVICES (NIG) LTD (2004) 11 NWLR (PT 885) 552 and OKEREKE & ANOR V. IBE & ORS (2008) LPELR 4714. Counsel urged the Court to resolve this issue in favour of the appellant as well.

On issue four, learned counsel stated that the writ of summons did not meet the requirements of the law regarding the signing of originating processes. He referred to Order 13 Rule 4(3) of the Federal High Court (Civil Procedure) Rules 2009; and OKAFOR V. NWEKE (2007) 10 NWLR

(PT 1043) 521. He argued that the writ of summons having been taken out by a person not qualified and entitled to practice law in Nigeria is incompetent and invalid. He referred to OKANKA V. SAMUEL (2013) 2 NWLR (PT 1352) 37; BRAITHWAITE V. SKYE BANK PLC (2013) 5 NWLR (PT 1346) 15 and Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007.

Learned counsel further argued that a Court process cannot be signed by another person on behalf of a Legal Practitioner. He referred to Order 13 Rule 4(3) of the Federal High Court (Civil Procedure) Rules 2009 which clearly stipulates that the writ of summons should be signed by a Legal Practitioner or by the party. And in this case, though the writ of summons was taken out by Dr. Amuda ? kannike, SAN, it was signed by M. M. Sulaiman, Esq. who is unknown to law and this is so because the identity of Dr Amuda- kannike, SAN as a Legal Practitioner is evidenced by his seal, that of M. M. Sulaiman, Esq. is not. Therefore, M. M. Sulaiman, Esq. who signed the writ and failed to affix his seal makes the writ of summons defective. He urged the Court to resolve this issue in favour of the appellant

as well and allow this appeal.

In the respondent brief of argument, learned counsel submitted on issue one that, on the competence of the Respondents? suit and the provision of the Limitation Act, the arguments advanced by the appellant are untenable, inapplicable and do not affect the substance of the suit since the cause of action has to do with continuous damage as a result of the oil spillage due to the negligence of the appellant in 1998 which is continuing. He referred to ADEPOJU V. RAJI OKE (1999) 3 NWLR (PT 594) 154. That the cause of action is a continuing one, calculation of the Limitation Period is done from the cessation of damages or injury. He referred to AREMO V. ADEKANYE (2004) 13 NWLR (PT 891) 572.

On issue two, learned counsel submitted that all the authority cited by the Appellant in support of this issue are misconstrued, misapplied and not in favour of its case. This is so because Section 78 of the Companies and Allied Matters Act stated clearly that a Court process shall be served on a company in the manner provided by the rules of Court and thus Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules

applies. Learned counsel further argued that the words in the provision must be given their ordinary meaning. He referred to BELLO V. NBN (1992) 6 NWLR (PT 246) 206; PALM BEACH INSURANCE LTD V. BRUHNS (1997) 9 NWLR (PT 519) 80 and FBN V. NJOKU (1995) 3 NWLR (PT 384) 457. He concluded that service effected on the Appellant?s office in Port Harcourt is a good service.

On issue three, learned counsel submitted that failure to particularize the claim for special damages under a specific heading does not deprive the lower Court of Jurisdiction to entertain the case as it is an issue that cannot be entertained at an interlocutory stage, and all the authorities cited by the appellant had to do with situations where evidence has been led.

On issue four, learned Counsel submitted that a counsel in a law firm can sign a writ of summons on behalf of the client. Therefore all authorities cited by the appellant are irrelevant. Learned counsel urged the Court to resolve all the issues in favour of the respondents and against the appellant and dismiss the appeal.

?Learned counsel for the appellant filed a reply brief. The argument therein will

be considered where necessary in the resolution of issues for determination of this appeal.

On issue one relating to the limitation of action, it is the argument of the Appellant?s Counsel that the cause of action having arisen in 1998, the limitation law is applicable and the whole claim is statute barred. The respondents counsel argued otherwise and maintained that in the action there is a continuing damage or injury which subsists up to the filing of the claim and as such the cause of action is not extinguished.
It is to be understood that an action is said to be caught up by statute of limitation or becomes statute barred when the party suing brings his action beyond the period laid down by the Limitation Law. See ARAKA V. EJEAGWU (2000) 12 SC (PT 1) 99. Where an action is statute barred, a plaintiff who might have had a cause of action loses the right of enforcement of such cause of action or claim in a Court of law as a result of the expiration of the prescribed period. See EBOIGBE V. NNPC (1994) 5 NWLR (PT 347) 649; UBA LTD V. ABIMBOLU & CO (1995) 9 NWLR (PT 419) 371 and AREMO II V. ADEKANYE & ORS (2004) NWLR (PT 891) 572.

In the determination of whether an action is statute barred or not, the Court will look at the processes filed by the plaintiff so as to discern the time of accrual of cause of action and the time of instituting the action. In EREGBOWA & ANOR V. OBANOR & ORS (2010) LPELR 8964 @ 36-37; Augie, JCA (as he then was) held that:
?It is well settled that in determining whether a cause of action is statute barred or not, the crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.? See also ADEKOYA V. FHA (2008) 11 NWLR (PT 1099) 539 and OMOMEJI V. KOLAWOLE (2008) 14 NWLR (PT 1106) 180.
Therefore, it is imperative that upon a scrutiny of the writ of summons and the statement is claim, if it is found that there is a cause of action, then the time of its accrual and the time of instituting the action will be considered.

What then is a cause of action? It is

the facts which establish or give rise to a right of actions that is the factual situation that gave rise to a judicial relief. In BELLO V. AG OYO STATE (1986) LPELR 764 @ 81, Karibi ? Whyte, JSC explained that:-
?A cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as given rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim?.
See THOMAS V. OLUFOSOYE (1986) LPELR 3237; EGBE V. ADEFARASIN (1987) LPELR 1032; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 AND UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT 807) 359.

?Upon a perusal of the statement of claim, it can be seen that the first relief for the respondent is a declaration that the effect of the crude oil spillage is still continuing till today in

the plaintiff?s community as the defendant allowed the spillage to occur, refusing to clean up the crude. The Respondents further averred that on or about 12/01/1998 crude oil escaped from the appellant pipeline and it continued to escape from the appellant?s pipelines in large quantity into several rivers, streams, lakes, swamp, fishing ports, water creek, ponds and forests. See Paragraph 6, 7, 8, 9, 10 and 11 of the statement of claim.
The trial Court did not however resolve this objection finally. In its ruling the learned trial Judge held as follows:-
It is the duty of the plaintiffs to prove continuing negligence. It should also be stated that the fact that the alleged wrong is a continuing one has been pleaded and issue joined on same. It is my respectful view that, as submitted by the defence, it remains for the plaintiff to prove same.?
It seems the trial Court did not come to a decision on whether the suit of the Respondents is either statute barred or not, leaving it for the Respondents to prove continuing damage or injury. This is the grouse of the Appellant?s complaint.

It seems from the reliefs claimed by the respondent and paragraphs 6 and 15 of the statement of claim, the oil spillage occurred on or about 12/01/1998 and the respondent commenced their action on 20/01/2016, a period of 18 years. The Limitation law allows a period of 6 years in cases relating to contract and tort. Ordinarily, the claim of the respondent ought to be caught up by the Limitation Act but for the averments in the statement of claim that the damage or injury arising from the appellant?s negligence is continuing. There are certain situations in which the application of Limitation Law will be curtailed and an action which would otherwise be held to be statute barred would escape the hammer of the limitation Act.
?The doctrine of continuous damage or injury relates to cases where something has been brought on land and wrongfully or negligently left there and it continues to cause damage or injury to the land and its owners. This act in itself will give rise to actions de die in diem so long as it lasts. In these types of situations, the Limitation Period will be frozen until after the cessation of the damage or injury.

See OBUEKE V. NNAMCHI (2012) 12 NWLR (PT 1314) 327; AG RIVERS STATE V. AG BAYELSA STATE (2012) 6-7 MJSC (PT 3); OBOT V. SPDC LTD (2013) LPELR 20704; GULF OIL LTD V. OLUBA (2002) 17 NWLR (PT 780) 92 and ADEPOJU V. OKE (1999) 2 NWLR (PT 594) 154.
Against this background, the Respondents? action which is based on continuous injury is sought to be terminated in limine by the appellant; this is inspite of the fact that the appellant has joined issues with the Respondents on the issue. Realizing that, the learned trial judge held that it is for the respondent to prove continuous injury or damage. What that postulate is that the question of whether the action of the respondent is either statute barred or not will await evidence on the issue. My view is that, where Limitation Law is pleaded by a defendant, it cannot be sustained on the strength of the writ of summons and the statement of claim where a plaintiff alleges continuance of damage or injury; it must be proved and it can only be proved where evidence is led. The trial Court is therefore right where it held that it is for the Plaintiffs/Respondents to prove same. The appellant?s counsel is therefore wrong

to have contended under this issue that the trial Court held that the suit was not statute barred. It never did. There is nowhere in the trial Court?s ruling where the Court held that the claim before it was not statute barred. This issue is resolved against the appellant and in favour of the respondents.

part of the trial Court. This is so because where the originating process is not served in accordance with the law, it deprives the Court of the requisite Jurisdiction to entertain the matter. The challenge must however be made timeously. In MARK V. EKE (2004) 5 NWLR (PT 865) 54; Musdapher, JSC (of blessed Memory) held that:
?Service of the process especially originating process is an essential condition for the Court to have competence or the jurisdiction to entertain the matter. Further, failure to comply with this condition would render the whole proceeding including Judgment entered and all subsequent proceedings based thereon wholly irregular, null and void.?
See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; UBA PLC V. AJILEYE (1999) 13 NWLR (PT 633) 116 and SKEN CONSULT NIG LTD V. UKEY (1981) NSCC.

Where service of our originating process is defective, the process in itself is not rendered defective so as to deprive the Court of the jurisdictional competence to adjudicate, but the Court under its power can set aside the defective service and make an order for a proper service of the originating process validly and properly

issued in accordance with the rules of Court. See PDP & ORS V. DAYO & ORS (2018) LPELR 46187; NEPA V. URUAKPA (2010) LPELR 4578 and ONONYE & ORS V. RT REV. CHUKWUMA (2005) LPELR 7526.

The Appellant in the instant appeal is an incorporated body and the provisions of the Companies and Allied Matters Act donate the powers to the rules of Court to regulate the service of Court processes on a corporation or registered company in Nigeria. Section 78 of the Law provides that:
?A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at or sending it by post to, the registered office or head office of the company.” Therefore, to comply with the above provision in serving an originating process of a Court, there must be a strict observance of the section. See NEPA PLC V. OGUNSUYI (2012) LPELR 19838; MOBIL PRODUCING (NIG) UNLTD V. EFFIONG (2011) LPELR 9055 and PLASTEX (NIG) LTD V. MAINLAND OIL & GAS (2018) LPELR 43509.
It is pertinent to consider the provision of Order 6 Rule 8 of the Federal High Court (civil procedure) Rules 2009, a provision which all parties agreed governs the ?

issue of service on the appellant. It states that:
?when the suit is against a corporation or a company authorize to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing that company as the case may be, by giving the writ or document to any Director, Secretary or other principal officer or by leaving it at the office of the corporation or company.”
The above rule creates two ways of serving an originating process on the Appellant either by serving same on a director, secretary or other principal officer of the company or by leaving at the office of the company. Whichever mode of service employed will be deemed a proper service in the eyes of the law.
In the appeal at hand, the appellant?s contention is that the originating processes were served on the appellant at its operational base at Km 16, Port Harcourt-Aba Expressway, off Eleme Junction, Port Harcourt Rivers State instead of its head office. But it should be noted that Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009 ?

did not mandate service of an originating process on a company at its head office. The word used in the rule, is ?office? simpliciter and it is my humble view that the word office as employed in the rule must be given its ordinary meaning. See BELLO V. NBN (1992) 6 NWLR (PT 246) 206 and FBN V. NJOKU (1995) 3 NWLR (PT 384) 457. To insist that a proper service can only be had upon serving the originating process at the head office of the appellant is not within the purview of the provision. If it was intended that a company can only be served through its registered or head office, the rule would have stated that. The underlying rationale of the rule, is to simplify matters of services of originating processes on a company or corporation in not insisting on service at the registered or head office. In MOBIL PRODUCING (NIG) UNLTD V. EFFIONG (Supra) @ 22- 23; Akeju, JCA held that:
?The general view that has been consistently expressed and adopted by this Court in matters of service of processes on a company is that the Companies and Allied Matters Act 1990 has made provision that eliminated the rigorous and cumbersome

procedure for service under the Act of 1968 by permitting service under the domestic Rules of Courts thus, the various decisions have consistently been to permit service of processes at the office of the company not been necessarily the registered office?.
See PHCN PLC V. OGUNSUYI (2012) LPELR 19838; UWAOKOP V. UBA PLC (2013) LPELR 22622; PLASTEX (NIG) LTD V. MAINLAND OIL AND GAS (Supra) DUWIN PHARMACEUTICAL CO LTD V. ESAPHARMA SRL ITALY & ANOR (2017) LPELR 42695 and PHCN & ANOR V. AG SOKOTO STATE (2014) LPELR 23825. In the circumstances, service of originating process affected on the appellant at its office in Port Harcourt is a proper service within the purview of the provision of Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009. The position of the learned trial judge on the issue cannot be faulted. This issue is equally resolved against the appellant and in favour of the respondent.

?On issue three relating to the respondent failure to particularize their claim for special damages under a specific heading, it is the contention of the appellant?s counsel that the appellant?s right to fair

hearing is in breach. Learned counsel for the respondent however argued that whether or not there is a failure to particularize the claim for special damages under a specific heading does not deprive the Court of the power to hear the case. The issue can only be resolved after a trial in the matter and not at an interlocutory stage.

It is not in doubt that the respondent are seeking for a declaratory relief, special and general damages arising out of the appellant?s negligent conduct in allowing oil spillage on their land. Special damage has been defined by the Supreme Court inAHMED V. CBN (2012) LPELR 9341 @ 21 as ?those which are the actual, but not necessary, result of the injury complained of, and which infact follow it as a natural and proximate consequence in the particular case, that is by reason of special circumstances or conditions. Such are damages which do not rise from wrongful act itself, but depend on circumstance, peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonably foreseeable.?

The law has long been settled that special damages are such that the law with not presume to flow or infer from the nature of the act or breach of duty complained of by a plaintiff as a matter of course. They are exceptional in their character and connote special items of loss which the plaintiff alleges are the result of the defendant?s act of breach of duty complained of.

Unlike general damage, special damages must be claimed specifically and proved strictly since the Court is not entitled to make its own estimate of same. The plaintiff must plead and particularize any item of special damage so that losses can be exactly known and accurately measured. See ADO V. COMMISSIONER OF WORKS, BENUE STATE (2007) 15 NWLR (PT 1058) 429; UBA PLC V. EKANEM (2010) 2 NWLR (PT 1177) 181; ADIM V. NBC LTD (2010) 9 NWLR (PT 1200) 558 AND AJIGBOTOSHO V. RCC (2018) LPELR 44774.
The above stated position of the law can also be found in Order 13 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 where there is a reinforcement of the position of the laws relating to pleading of special damages. It provides that:-
?In all cases in which the party claiming relies on any

representation, fraud breach of trust, willful deceit or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings?.
The above rule strengthens the position of the law on the need to plead with sufficient particulars all aspects of special damages claimed including dates and items specifically claimed. The plaintiff has no choice than to plead and particularize all aspect of special damages. But where a plaintiff fails to plead and particularize items of special damages in his statement of claim, can that amount to a denial of the defendants right to fair hearing and can the suit of the plaintiff be terminated in Limine as a result of non pleading and non particularizing of special damages?
The learned trial judge in considering this aspect of appellant?s objection held as follows at P176 of the Records of Appeal:-
?it is pertinent to state that the trial or hearing is yet to commence in this case, so the issue of lack of fair hearing does not in my humble view arise ? it is premature to complain of lack of fair

hearing as no hearing has even commenced. Whether the plaintiffs will be able to prove their claim under special damages is to be determined at the end of the day.? The right to fair hearing is a fundamental constitutional right guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Fair hearing in the con of Section 36(1) of the Constitution encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice ? audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. Where the right to fair hearing is breached particularly in trials, the whole proceeding is rendered null and void. See OTAPO V. SUNMONU & ORS (1987) LPELR 2822; KOTOYE V. CBN & ORS (1989) LPELR 1707 KIM V. STATE (1992) LPELR 1691 and BABA V. NIGERIAN CIVIL AVIATION & ANOR (1991) LPELR 692.
Fair hearing has some well known attributes and any trial that did not adhere to the well known and accepted attributes will be invalidated In S & D CONSTRUCTION CO LTD V. AYOKU & ANOR (2011) LPELR 2965 @ 32-32; Adekeye, JSC held ?

that:
?The right of fair hearing is a constitutional right enshrined in Section 36 of the 1999 Constitution. The right to fair hearing is a very essential right for a person to secure justice. The basic attributes of fair hearing include (a) that the Court should hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudiced to any party in the case (b) that the Court or tribunal gives equal treatment, opportunity and consideration to all concerned (c) that the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing (d) that having regard to/at the circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have done?. See USANI V. DUKE (2004) 7 NWLR (PT 871) 116; FAGBULE V. RODRIGUES (2002) 7 NWLR (PT 765) 18 and BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 622) 290.
?In the appeal at hand, hearing into the matter has not commenced when these issues were raised at an

interlocutory stage and the Appellant cries fair hearing. Where is the hearing upon which the supposed right of the appellant was trampled upon? Failure of the Respondents as plaintiff to plead and particularize their claim on special damages cannot in my view transcend to a breach of right of fair hearing of the Appellant as defendant. None of the attributes of fair trial are in breach as a result of that failure.

The appellant also want to terminate the suit of the respondents in limine for failure to plead and particularize special damages. The position taken by appellant in so urging this Court to strike out the suit of the Respondents is untenable in law. First, where the particulars relating to special damages are insufficient, the remedy is not striking out the suit in limine. The remedy lies on the appellant?s requesting further particulars of special damages. See SPDC V. AKPOMUDJE & ORS (2018) LPELR 46105. Secondly, the law has been trite that unless special damages are specifically pleaded, particularized and strictly proved, the Court is obliged not to make any awards in that regard. See STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR 3118; INSTITUTE OF HEALTH ? ABU HOSPITAL MANAGEMENT BOARD V. ANYIP (2011) ?

LPELR 1517 and EZURUIKE V. 7UP BOTTLING CO PLC (2018) LPELR 44626.
I noted an elaborate and rich citation of decisions of our Courts with regard to the issue of special damages. Learned counsel for the appellant has provided so many, but all the authorities cited by counsel has no direct bearing with the facts in this appeal. In none of the cases cited was an issue of non particularization of special damages decided in limine by either this Court or the Supreme Court. All the cases cited by the Appellant related to circumstances where evidence was led and Judgment delivered by the trial Court. In the circumstances, the Appellant is hasty in raising the issue at interlocutory stage. It is an issue to be properly decided at the conclusion of trial. The stance taken by the trial Court on this issue is proper. This issue is also unmeritorious and it is equally resolved against the Appellant and in favour of the Respondents.

On issue four, it is the contention of the Appellants that the writ of summons was taken out by a person not qualified and entitled to

practice law in Nigeria and thus incompetent. He also argued that Rule 10 of the Rules of Professional Conduct is in breach. Learned counsel for the Respondents however argued that the counsel who signed the processes on behalf of Amuda ? Kannike, SAN cannot be speculated as a person unknown to law because he did not affix his stamp on the writ.
An originating process is the foundation upon which the whole action of a party rests. Thus its validity is fundamental as it endows the suit with competence. In BRAITHWAITE V. SKYE BANK PLC (2012) LPELR 15532 @ 7-8, Muhammad, JSC held that:-
The validity of the originating processes in a proceeding before a Court is fundamental and a necessary requirement for the competence of the suit and proceeding the processes set out to commence.” See MADUKOLU V. NKEMDILIM (1962) 3 NSCC 374 and KENTE V. ISHAKU (2017) LPELR 42077.

To be valid, the originating process must strictly adhere to the provision of the rule of Court. By Order 3 Rule 12 of the Federal High Court (civil Procedure) Rules 2009, the registrar shall seal every originating process where upon it shall be deemed to be issued

and each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the registrar as being a true copy of the original process file. Also by Order 13 Rule 4(3) of the Rules, pleadings shall be signed by a legal practitioner or by the party, if he sues or defends in person. Thus, both the writ of summons and the pleadings must be signed by either a legal practitioner representing a party or the party himself. Where this is not done then the writ of summons or a particular pleading will be incompetent. See MINISTRY OF WORKS & TRANSPORT ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT 1351) 481; OKON & ORS V. ANSA & ORS (2018) LPELR 44304 and BABATOPE V. SADIKU & ANOR (2017) LPELR 41966.

The contention of the appellant in this appeal relates to the signing of the originating process by M. M. Sulaiman Esq. for Prof. A. Amuda ? Kannike, SAN whose seal appeared or was affixed to the originating process instead of M. M. Sulaiman Esq. To this, Learned Senior Counsel argued that M. M. Sulaiman, Esq. is unknown to law. The trial Court however held that at P 175

of the records of appeal:-
even though it is a human being i.e. natural person that signed the writ of summons in this suit in the person of I. D. Wariboko, Esq. that he is not a person known to law as there is no seal affixed in the name of I. D. Wariboko. It is uncontroverted evidence before the Court that the said I. D. Wariboko, Esq. could not affix his stamp and seal even though he has applied and made payment but same has not been issued to him by the issuing authority ?. There is no doubt that the writ of summons in this case was signed by an identifiable human being who is a person admitted to Practice Law in Nigeria?.
From the above passage, it seems the trial Court ruled on the competence of one I. D. Wariboko, Esq. to sign the originating processes on behalf of the Respondents as their Legal Practitioner. This stemmed from the deposition of the appellant in paragraph 7 of the affidavit in support of the motion which gave rise to this appeal. The said paragraph 7 of the affidavit in support is reproduced here under: –
7. That I have seen the writ of summons against the defendant/applicant was taken out

by Dr A Amuda – Kennike, SAN but signed by one I. D. Wariboko, Esq. However, in a twist, the appellant on appeal is no longer challenging the signing of the writ of summons and pleading by I. D. Wariboko, Esq. but by M. M. Sulaiman, Esq. the signing of the originating process by M. M. Sulaiman, Esq. was never an issue before the trial Court.
Generally, any appeal is regarded as a continuation of the original suit or action, and not an inception of a new action. In this respect, the parties in an appeal are confined to their cases as pleaded and argued in the Court of first instance. See NGIGE V. OBI (2006) 14 NWLR (PT 999)1; AKPA V. ITODO (1997) 5 NWLR (PT 506) 589 and ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (PT 109) 250. The case of the appellant as argued in the trial Court must be consistent with the case on appeal before us. An appeal Court will hardly allow a party to put up a different case from the case it had put up at the trial Court without leave. See EZEMBA V. IBENEME & ANOR (2004) LPELR 1205 and AJIDE V. KELANI (1985) 3 NWLR (PT 12) 248. Now, the appellant is no longer pursuing the competence of I. D. Woriboko, Esq. as a legal

Practitioner but rather on M. M. Sulaiman, Esq. This challenge on appeal is notwithstanding the fact that M. M. Sulaiman Esq. has appeared several times before the trial Court and there was never a challenge to his appearance for the Respondents by the Appellant?s counsel. See PP 162 ? 166 of the records. That apart, can the Appellants change its challenge on competence of I. D. Wariboko, Esq. to sign the Originating process which was decided upon by the trial Court to the challenge on the competence of M. M. Sulaiman, Esq. to sign the same originating processes at the appeal stage? In GUDA & ORS V. KITTA (1999) LPELR 13095; @ 66-67 Olagunju, JCA (as he then was) held that:-
?Again, it is foolhardy for an appellant to hope that what he had lost on the evidence at the trial Court can by some judicial acrobatics or raw chicanery be gained on appeal. Each party must make his case in the trial Court and not to hope to improve on his case on appeal by drawing a red herring across the trial?.
See AKUNEZIRI V. OKENWA & ORS (2000) LPELR393; KWAJAFFA & ORS V. B. O. N. LTD (2004) LPELR 1727 AND NDAYAKO & ANOR V.MOHAMMED & ORS ?

(2006) LPELR 8238. Having made a case against I. D. Woriboko, Esq. at the trial Court and upon which the trial Court delivered a considered ruling, the Appellant?s attempt to take a summersault on appeal by directing the challenge against one M. M. Sulaiman, Esq. who was never a subject of any challenge at the trial Court must be refused. The appellant cannot simply change their case on appeal. In the circumstances, this issue is of no moment since it did not stricto sensu challenge the ratio in the ruling of the trial Court. The issue is as well resolved against the Appellant and in favour of the Respondents.

Having resolved all the four issues for determination against the Appellant and in favour of the Respondents, it follows therefore that this appeal is devoid of any merit; it ought to be and is hereby dismissed. The ruling of the trial Court in suit No. FHC/PH/CS/09/2016 is hereby affirmed.
I award a cost of N50, 000:00 to the Respondents.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, ABUBAKAR MUAZU LAMIDO JCA before it was delivered. I agree with

the reasoning and conclusion of my learned brother and I dismiss the appeal. I abide by the consequential orders.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the lead Judgment delivered by my Learned brother ABUBAKAR MU’AZU LAMIDO, JCA.

?I agree with my Learned brother that this appeal fails for lack of merit and it is accordingly dismissed. I abide by all the consequential orders in this appeal.

Appearances:

I. Imhanze, Esq. with him, E. Alasa, Esq. and Ayolola, Esq.For Appellant(s)

Prof. A. Amuda-Kannike, SAN with him, A.O. Yusuf, Esq., M. S. Arikewuyo, Esq. and M. M. Sulaiman, Esq.For Respondent(s)

Appearances

I. Imhanze, Esq. with him, E. Alasa, Esq. and Ayolola, Esq.For Appellant

AND

Prof. A. Amuda-Kannike, SAN with him, A.O. Yusuf, Esq., M. S. Arikewuyo, Esq. and M. M. Sulaiman, Esq.For Respondent