NIGERIA GAS COMPANY LIMITED v. GASLAND COMPANY LIMITED (2015)

NIGERIA GAS COMPANY LIMITED v. GASLAND COMPANY LIMITED

(2015)LCN/7938(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of July, 2015

CA/L/1200/2014

RATIO

APPEAL: PRELIMINARY OBJECTION TO JURISDICTION AND SUBSTANTIVE ACTION; WHETHER PRELIMINARY OBJECTION TO JURISDICTION AND SUBSTANTIVE ACTION CAN BE TAKEN TOGETHER IN ONE PACKAGE

A careful appraisal of the record relating to the appeal indicates that the Court below did not prefer to deal with the substantive action before the preliminary objection to its jurisdiction to entertain the substantive action. Rather the Court below stated that both the preliminary objection to its jurisdiction and the substantive action would be taken in one package. The Court below followed the decision of the Court (Lagos Division) in C.B.N. v. Akingbola and Anor. (supra) in arriving at the said decision. In that case which is also reported asC.B.N. v. Akingbola and Anor. (2013) 3 BFLR 128 at 153-154 the Court (coram Saulawa, Ikyegh and Iyizoba, JJ.C.A.) held inter alia that –
“… the Court below was right to invoke Order 29 Rule 1 of its Rules (supra) to order that the preliminary objection be heard together with the substantive action at which the preliminary objection to jurisdiction, locus standi and justiciability/reasonable cause of action of the substantive matter will be taken first followed by the substantive matter and a decision given on them in one package by the Court below for the purpose of saving time, cost and duplication of effort by the parties and the Court below. See Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 at 274 thus –
“… saying that the issue of jurisdiction should be resolved first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the Court should first express ifs view on jurisdiction before considering the merits.
The advantage of so proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate Court to express its views on the decision of the lower Court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as to the merit of the case”.
There is again the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 79 at 100, where Uwais, C.J.N., held inter alia that –
“with the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be”.
Even where facts are needed to resolve preliminary objection, for the purpose of convenience and economy or time, the preliminary objection can be taken with the substantive matter. See Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt. 1297) 407 at 426 where this Court (Okoro, Bage and Pemu, JJ.C.A.) followed Amadi v. N.N.P.C. (supra) on the same issue to hold inter alia that –
“It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be”
See also Governor of Central Bank of Nigeria v. Akingbola (2013) 3 BFLR 158 at 179-179.

LEGAL SYSTEM: HIERARCHY OF COURTS IN NIGERIA AND JUDICIAL PRECEDENT
The hierarchy of Courts in Nigeria in descending order is the Supreme Court followed by the Court of Appeal, then the other Superior Courts of Record (Federal High Court, High Court of a State; the Federal Capital Territory, High Court of a Sharia Court of Appeal and Customary Court of Appeal; and the National Industrial Court) and at the base of the pyramid of Courts are the inferior Courts (Magistrate Courts, Sharia/Customary/Area Courts etc and other Tribunals established by an Act or Law) vide Section 6(5)(a-k) of the Constitution of the Federal Republic of Nigeria 1999, as amended (1999 Constitution). A decision given by the Supreme Court is binding on the Courts below it with respect to the matter decided which is in issue before the Courts below it, while a decision given by the Court of Appeal binds the Courts below it on the same issue; similarly a decision given by the Federal or High Court, for instance, binds the inferior Courts below it; so, the Court below out of judicial discipline merely obeyed precedent or the doctrine of stare decisis when it followed the decision of the Court of Appeal in C.B.N. v. Akingbola and Anor. (supra). The Court below cannot be faulted in the circumstance vide Okonjo v. Odje and Ors. (1985) 10 SC 267 at 268-269, Clement v. Iwuanyanwu (1989) NSCC 234, African Newspapers v. Akano (2013) ALL FWLR (Pt. 605) 345, Suleman v. C.O.P. Plateau State (2008) 8 NWLR (Pt. 1089) 298. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

RULES OF THE COURT: THE PROVISION OF THE PROVISO TO ORDER 8 OF THE RULES OF THE COURT ON THE PENALTY FOR FAILURE OF A PARTY TO TAKE STEP IN THE PROCEEDINGS WITHIN THE TIME STIPULATED AND THE NEED TO COMPLY WITH THE RULES OF COURTS
The penalty for the failure of a party to take any step in the proceedings within the time stipulated therefore is made obvious in the proviso to Order 48 of the Rules of the Court below for computation of time in these words – “Provided that any party who defaults in performing an act within the time authorized by the Judge or under the 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”.
The proviso (supra) clearly makes the keeping of time for performing an act by any of the parties obligatory or compulsory, which is based on the footing that any enactment that prescribes penalty for default in carrying out the requirements of the enactment makes the provisions of the enactment in question mandatory.
Rules of Court are not for fancy, or for decoration. They are for orderly presentation of cases. When time is of the essence in keeping with the rules of Court, the time frame must be complied with; or the party in default may lose the advantage provided by the rules of Court and face the consequences of disobedience stated by the rules of Court. Thus in Nigerian Navy and Ors v. Labinjo (2012) 17 NWLR (Pt. 1328) 56 at 84, the Apex Court held inter alia that –
“The rules of Court are meant to be obeyed. The purpose of the rules is to regulate matters in Court and assist parties to any suit or appeal to present their cases for the purpose of fair and quick trial or hearing. Where the rules are quickly complied with, there will be quick dispensation of justice”.
Again it was held in the Apex Court case of MC Investments Ltd and Anor v. Core Investments and Capital Markets Limited (2012) 12 NWLR (Pt. 1313) 1 at 17 particularly at page 20 that –
“The appellant should be reminded that rules of Court are meant to be obeyed. Any party who fails to obey Court rules does so at his own peril. Such a party as the appellants herein cannot be heard to complain See: Afolabi v. Adekunle (1983) NSCC 398 at 405, (1983) 2 SCNLR 141; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 743”.
See also University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143, Wellington v. Registered Trustees Ijebu Ode (2000) 5 NWLR (Pt. 647) 130 which were followed in Nigerian Navy and Ors v. Labinjo (supra); Williams v. Hope Rising Voluntary Funds Society (1982) 13 N.S.C.C. 36, A-G, Federation v. Bicourtney Ltd. (2012) 14 NWLR (Pt. l321) 467. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

NIGERIA GAS COMPANY LIMITED Appellant(s)

AND

GASLAND COMPANY LIMITED Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a ruling of the Federal High Court (the Court below) whereby the Court below struck out the appellant’s preliminary objection to its jurisdiction on the ground that the preliminary objection was filed outside the 21 days prescribed by the Federal High Court (Civil Procedure) Rules 2009, (the Rules of the Court below).

In a nutshell, the respondent by a writ of summons and accompanying statement of claim filed on 26-03-14, sought for a declaratory, injunctive and specific performance reliefs against the appellant with respect to a franchise embodied in a National Gas Sales and Purchase Agreement (GSPA) between the appellant and the respondent. The respondent sued on the GSPA at the Court below alleging its breach by the appellant. In line with one of the clauses of GASPA, the respondent and the appellant engaged in negotiations to settle the dispute. They were not successful. After negotiations had broken down, the appellant filed a motion on notice challenging the jurisdiction of the Court below to entertain the action on the premise that a pre-action notice was not

served on the appellant by the respondent as required by Section 12(2) of the Nigerian National Petroleum Act Cap. 123, Laws of the Federation of Nigeria, 2004 (NNPC Act).

The motion on notice was determined on the merit upon which the Court below struck out the objection to its jurisdiction on the ground that it was filed outside the 21 days permitted by Order 29 Rule 4 of the Rules of the Court below and should be taken with the substantive suit under its rules.

Not satisfied with the decision of the Court below striking out the objection to jurisdiction (supra), the appellant filed a notice of appeal on 05-12-14 with one ground of appeal closely followed by a brief of argument filed on 22-12-14 bearing the following issue for determination –
“Whether the learned trial Judge was right in refusing the objection to the Court’s jurisdiction because if was raised outside the time permitted by Order 29 of the Federal High Court Civil Procedure Rules 2009.”

The appellant argued that jurisdiction is a threshold/constitutional issue as well as the life line for continuing any proceedings in Court which can be raised at any stage of the

proceedings even for the first time on appeal vide Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 693, N.D.I.C. v. C.B.N. and Anor. (2002) 7 NWLR (Pt. 766) 272 at 294-295, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 at 520-521, Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467 at 507; that Order 29 Rule 4 of the Rules of the Court below is a subsidiary legislation subservient to Section 22 of the N.N.P.C. Act, a substantive enactment by the National Assembly; that Order 29 Rule 4 of the Rules of the Court below read with Rule 5 thereof stating that if the objection is not taken within 21 days then it can be entertained by the Court at the close of the case is contrary to the established principle of stare decisis stated by the cases cited (supra) that an issue of jurisdiction once raised should be dealt with instantly and; also, that it would work against speedy dispensation of justice if such objection is not taken instantly and violate the fundamental objective of the Rules of the Court below citing in support N.D.I.C. v. C.B.N. (supra) at 294-295 and the unreported case of C.G.G. Nigeria Ltd. v. Chief Lawrence Ogu:

Appeal No. CA/PH/88/1999 delivered on 18-09-2000 to the effect that an issue of jurisdiction once raised should be determined on the spot before any other step is taken in the proceedings; and that the case of C.B.N. v. Akingbola and Anor. (2013) LPELR-21475 is distinguishable from the facts of this case in that the time frame of 21 days under Order 29 Rule 4 was not raised or discussed; therefore the appeal should be allowed.

The appellant finally urged that since all the materials for the resolution of the preliminary objection to the jurisdiction of the Court below are in pages 617-795 of the record of appeal (the record) Section 15 of the Court of Appeal Act read with the case of C.G.G. (Nig.) Ltd. v. Chief Lawrence Ogu (2005) 1 NWLR (Pt. 972) 366 at 382 and 385 be invoked to determine the said issue at this stage of the proceedings.

The respondent’s brief of argument filed on 04-03-15, but deemed properly filed on 05-03-15, submitted the following issue for determination-
“Whether the lower Court was wrong when it refused to grant the 02-07-14 motion based on the provision of Order 29 of the F.H.C. Rules (Distilled from the

Appellant’s sole ground of appeal)”.

Relying on the cases of C.B.N. v. Akingbola and Anor. (2013) LPELR-21474, Owners of the MV Arabella v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 at 205-206, Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425 at 454, Inakoju v. Adeleke (2007) 1 SC (Pt. 1) 1, at 303-304, Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 20, Amadi v. N.N.P.C. (2000) 10 NWLR 76, Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537, Bakare v. Nigerian Railway Corporation (2007) 7-10 SC 1 at 50, the respondent contended that the Court below was right to take judicial notice of the decision of the Court in C.B.N. v. Akingbola (supra) in its ruling to the effect that by Order 29 Rule 4 of the Rules of the Court below which is expressed in mandatory terms and which must, also, be obeyed as Rules of Court are meant to be obeyed, the appellant’s failure to raise the preliminary objection to the jurisdiction of the Court below within 21 days of service of the originating process on the appellant warranted the Court below to take the objection to its jurisdiction together with the substantive action to save time and cost and to obviate multiplicity of

appeals which hamper the due administration of justice; consequently, it was urged by the respondent that the decision of the Court below should not be disturbed in the circumstance.

Placing reliance on the cases of Inakoju v. Adeleke (supra) at 614 and A-G, Dapialong v. Dariye (2007) 4 SC 18 at 166, Att. General of Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 at 619-620, the respondent argued that having not framed a ground of appeal on Section 15 of the Court of Appeal Act and; also, having regard to the fact that the application was struck out on ground of incompetence and the failure of the appellant to establish that there would be delay between the hearing of the appeal and the disposal of the action at the Court below, Section 15 of the Court of Appeal should not be invoked to determine the application in the present appeal; and that the appeal should be dismissed and the decision of the Court below affirmed.

The reply brief filed on 09-03-15 reiterated that oral evidence may be required in the action which was brought by writ of summons, so Order 29 Rules (1) and (4) of the Rules of the Court below are inapplicable to the case;

more all so the Rule of Court would not override substantive enactment vide Nwanezie v. Idris (1993) 3 NWLR (Pt. 279) 1 at 16, F.B.N. and Anor. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; and that an issue of jurisdiction has precedence over the Rules of Court vide Akegbejo v. Ataga (1988) 1 NWLR (Pt. 534) 459 at 469; so the appeal should be allowed and the threshold issue of jurisdiction heard here under Section 15 of the Court of Appeal Act which empowers the Court to do what a lower Court could have done but failed to do and not to undo what a lower Court has done vide Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659, Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 163, Amadiume v. Ibok (2006) 6 NWLR (Pt. 957) 158.

In my modest opinion, the sole issue (supra) formulated by the appellant is identical to the respondent’s issue for determination and based on that premise, I propose to follow the appellant’s said issue for determination for the discourse.

A careful appraisal of the record relating to the appeal indicates that the Court below did not prefer to deal with the substantive action before the preliminary objection to its

jurisdiction to entertain the substantive action. Rather the Court below stated that both the preliminary objection to its jurisdiction and the substantive action would be taken in one package. The Court below followed the decision of the Court (Lagos Division) in C.B.N. v. Akingbola and Anor. (supra) in arriving at the said decision. In that case which is also reported asC.B.N. v. Akingbola and Anor. (2013) 3 BFLR 128 at 153-154 the Court (coram Saulawa, Ikyegh and Iyizoba, JJ.C.A.) held inter alia that –
“?. the Court below was right to invoke Order 29 Rule 1 of its Rules (supra) to order that the preliminary objection be heard together with the substantive action at which the preliminary objection to jurisdiction, locus standi and justiciability/reasonable cause of action of the substantive matter will be taken first followed by the substantive matter and a decision given on them in one package by the Court below for the purpose of saving time, cost and duplication of effort by the parties and the Court below. See Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 at 274 thus –
“… saying that the issue of jurisdiction should be

resolved first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the Court should first express ifs view on jurisdiction before considering the merits.
The advantage of so proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate Court to express its views on the decision of the lower Court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as to the merit of the case”.
There is again the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 79 at 100, where Uwais, C.J.N., held inter alia that –
“with the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might

be”.
Even where facts are needed to resolve preliminary objection, for the purpose of convenience and economy or time, the preliminary objection can be taken with the substantive matter. See Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt. 1297) 407 at 426 where this Court (Okoro, Bage and Pemu, JJ.C.A.) followed Amadi v. N.N.P.C. (supra) on the same issue to hold inter alia that –
“It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be”
See also Governor of Central Bank of Nigeria v. Akingbola (2013) 3 BFLR 158 at 179-179.
?The hierarchy of Courts in Nigeria in descending order is the Supreme Court followed by the Court of Appeal, then the other Superior Courts of Record (Federal High Court, High Court of a State; the Federal Capital Territory, High Court of a Sharia Court of Appeal and Customary Court of Appeal; and the National Industrial Court) and at the base of the pyramid of Courts are the inferior

Courts (Magistrate Courts, Sharia/Customary/Area Courts etc and other Tribunals established by an Act or Law) vide Section 6(5)(a-k) of the Constitution of the Federal Republic of Nigeria 1999, as amended (1999 Constitution). A decision given by the Supreme Court is binding on the Courts below it with respect to the matter decided which is in issue before the Courts below it, while a decision given by the Court of Appeal binds the Courts below it on the same issue; similarly a decision given by the Federal or High Court, for instance, binds the inferior Courts below it; so, the Court below out of judicial discipline merely obeyed precedent or the doctrine of stare decisis when it followed the decision of the Court of Appeal in C.B.N. v. Akingbola and Anor. (supra). The Court below cannot be faulted in the circumstance vide Okonjo v. Odje and Ors. (1985) 10 SC 267 at 268-269, Clement v. Iwuanyanwu (1989) NSCC 234, African Newspapers v. Akano (2013) ALL FWLR (Pt. 605) 345, Suleman v. C.O.P. Plateau State (2008) 8 NWLR (Pt. 1089) 298.

Now Order 29 of the Rules of the Court below provides –
“29(1) Where a defendant wishes to –
(a) dispute the

Court’s jurisdiction to try the claim;
Or
(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
(2) A defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
(3) A defendant who files a memorandum of appearance does not, but so doing lose any right that he may have to dispute the Court’s jurisdiction.
(4) An application under this order shall;
(a) Be made within twenty one days after service on the defendant of the originating process, and
(b) Be supported by affidavit where it is not based on ground of law alone.
(5) If the defendant files an acknowledgment of service and does not make such application within the period specified in Rule 4 of this Order, any such application can only be taken at the conclusion of the

trial”.
Originating process is defined in Order 1 Rule 5 of the Rules of the Court below to mean any Court process by which a suit is initiated. The definition covers a suit commenced by writ of summons as is the case here, as well as by originating summons, for example; consequently, the respondent’s action which was commenced by a writ of summons is within the bracket of Order 29 of the Rules of the Court below.
As stated in C.B.N. v. Akingbola (supra) in pages 150-151 of the law report while considering Order 29 of the Rules of the Court below-
“There are three significant instances that give Order 29 of the Rules of the Court below mandatory or compulsory content. First if a defendant files the preliminary objection within 21 days of service on him of the originating process and the originating process does not involve the taking of oral evidence the preliminary objection must be taken together with the originating process.
Second, if the preliminary objection is filed after 21 days of the service on the defendant of the originating process, the preliminary objection must be taken with the originating process at the conclusion

of trial, whether or not the originating process does not require the taking of oral evidence.
And third, if the preliminary objection is filed and the originating process entails oral evidence whether or not it was filed by the defendant within 21 days of service on him of the originating process, the preliminary objection must be taken first and separate from the originating process as a threshold issue. These are the only three instances discernable from Order 29 of the Rules of the Court below showing the Court below has no discretion to exercise in the implementation of Order 29 of its Rules, in my view.” (My emphasis).
See also Governor, C.B.N. v. Akingbola (supra) at 176.
Evidently, the appellant brought the preliminary objection to jurisdiction of the Court below outside the 21 days required to have it taken alone as a threshold issue which necessitated the invocation of Order 29 Rule 4 of the Rules of the Court below for the objection to be heard together with the substantive action. The rationale is based on case management to the effect that a party who raises the preliminary objection to jurisdiction early will be heard on

it instantly, while a party such as the appellant, who decided to raise it much later after issues have been joined would be heard on it together with the substantive suit. It does not mean the relevant rules of the Court below forbid the raising of preliminary objection to jurisdiction, nor does the said rule of Court whittle down any substantive law. It is a matter of procedure and the scheduling of the business of the Court below in accordance with its rules. What it does mean is that time which is a scare natural resource and which is also the backbone of litigation must be properly managed by the parties and, in the event a party is tardy in the management of time such a party will be heard last in matters of preliminary objection as stipulated by the rules of the Court below. See by analogy the case of African Petroleum Plc v. Adeniyi and Ors (2011) 15 NWLR (Pt. 127) 562.
The penalty for the failure of a party to take any step in the proceedings within the time stipulated therefore is made obvious in the proviso to Order 48 of the Rules of the Court below for computation of time in these words –

“Provided that any party who defaults in

performing an act within the time authorized by the Judge or under the 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”.
The proviso (supra) clearly makes the keeping of time for performing an act by any of the parties obligatory or compulsory, which is based on the footing that any enactment that prescribes penalty for default in carrying out the requirements of the enactment makes the provisions of the enactment in question mandatory.
Rules of Court are not for fancy, or for decoration. They are for orderly presentation of cases. When time is of the essence in keeping with the rules of Court, the time frame must be complied with; or the party in default may lose the advantage provided by the rules of Court and face the consequences of disobedience stated by the rules of Court. Thus in Nigerian Navy and Ors v. Labinjo (2012) 17 NWLR (Pt. 1328) 56 at 84, the Apex Court held inter alia that –
“The rules of Court are meant to be obeyed. The purpose of the rules is to regulate matters in Court and assist parties to any suit or appeal to present their cases

for the purpose of fair and quick trial or hearing. Where the rules are quickly complied with, there will be quick dispensation of justice”.
Again it was held in the Apex Court case of MC Investments Ltd and Anor v. Core Investments and Capital Markets Limited (2012) 12 NWLR (Pt. 1313) 1 at 17 particularly at page 20 that –
“The appellant should be reminded that rules of Court are meant to be obeyed. Any party who fails to obey Court rules does so at his own peril. Such a party as the appellants herein cannot be heard to complain See: Afolabi v. Adekunle (1983) NSCC 398 at 405, (1983) 2 SCNLR 141; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 743”.
See also University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143, Wellington v. Registered Trustees Ijebu Ode (2000) 5 NWLR (Pt. 647) 130 which were followed in Nigerian Navy and Ors v. Labinjo (supra); Williams v. Hope Rising Voluntary Funds Society (1982) 13 N.S.C.C. 36, A-G, Federation v. Bicourtney Ltd. (2012) 14 NWLR (Pt. l321) 467.
The argument that Order 29 Rule 4 of the Rules of the Court below deprives the appellant of its statutory and constitutional right to raise the

issue of jurisdiction at any time is neither here nor there. The Court below simply adhered to its rules by holding that the issue was raised at the stage of the proceedings when the time for it to be determined as stated by the rules of the Court below had not come and/or was not ripe.
Invariably, at the opportune time stipulated by the rules of the Court below, the issue of jurisdiction will be heard first and determined before the substantive suit is looked into and, in the event the matter goes on appeal, the Appeal Court will have the benefit of dealing with the entire case inclusive of the objection to jurisdiction in one fell swoop for the purpose of saving time and costs and/or protracted litigation vide C.B.N. v. Akingbola (supra) at 151 thus
“The fundamental objective of the rules of the Court below is to promote speedy dispensation of justice and avoid protracted trial. Consequently, if oral evidence is to be taken at the hearing of the main action, its protracted nature due to cross-examination and re-examination would unduly delay or bog down the just and expeditious disposal of the preliminary objection contrary to the spirit and soul

of the rules of the Court below expressed in Order 1 Rule 4 thereof thus –
“The fundamental objective of these rules is, just and expeditious disposition of cases”.
The touchstone of Order 1 Rule 4 of the Rules of the Court below is therefore for it to do justice fairly and avoid delay plus unnecessary cost of protracted litigation. The Court below, accordingly, had to balance the criteria of fairness, justice, convenience, time management and/or efficient case management for the purpose of attaining justice in the case by deciding to hear both the preliminary objection and the main application together.
In the present case, the advantage and protection the appellant will have of having ifs preliminary objection attended to first shall not be lost as the preliminary objection will be heard before the substantive matter at the time both the preliminary objection and the substantive matter are taken together.
The Court below would also have to rule on the preliminary objection first, thus giving priority to the preliminary objection over and above the substantive matter.”
See also Governor, C.B.N. v. Akingbola (supra) at

176-177.

On the whole, I see no merit in the interlocutory appeal and hereby dismiss it as the Court did not refuse to hear the objection to its jurisdiction at all: it stated merely that the objection should have been taken with the substantive action as required by its rules.

The reliefs sought in the appeal in page 840 of the record includes an invitation for invocation of Section 15 of the Court of Appeal Act. For ease of reference, the said reliefs are stated in the notice of appeal as follows-
?RELIEF SOUGHT FROM THE COURT OF APPEAL
a. AN ORDER setting aside the Ruling of the lower Court delivered on 24th November, 2014 by Honorable Justice M. B. Idris.
b. AN ORDER striking out the suit for want of jurisdiction pursuant to Section 15 of the Court of Appeal Act C36, Laws of the Federation of Nigeria, 2004?

Going by relief (b) (supra) Section 15 of the Court of Appeal Act would come into discussion and be in line with the decision of the Supreme Court in Inakoju and Ors v. Adeleke and Ors. (supra) at 103-104 to the effect that the question of striking out the appeal on ground of want of jurisdiction arose

from the ground of appeal in pages 839-840 of the record, upon which relief (b) of the notice of appeal is hinged, which would entail the consideration by the Court of the preliminary objection struck out by the Court below, in the event the appeal is allowed.

I do not see Section 15 of the Court of Appeal Act applying to an appeal that has been dismissed. It should apply to an appeal that has succeeded. Also, if Section 15 of the Court of Appeal Act is to be invoked, the objection to jurisdiction together with the substantive action will be heard by the Court as the Court is in the shoes of the Court below and is expected to do what the Court below should have done if it was to hear the preliminary objection to its jurisdiction with the substantive action. In addition, the appellant hinted in the course of arguments that oral evidence may be taken at the hearing of the substantive suit, therefore not all the materials are before the Court for it to invoke Section 15 of the Court of Appeal Act. The circumstances for the invocation of Section 15 of the Court of Appeal Act do not, therefore, exist in the present case.

?In the final analysis and at

the risk of repetition, I find no merit in the appeal and hereby most respectfully dismiss it and affirm the considered ruling of the Court below (Idris J.) with N30,000 costs to the respondent. Both learned counsel Mr. Sulu-Gambari for the appellant and Dr. Ekueme for the respondent are commended for the useful briefs settled by them for the appeal.

SIDI DAUDA BAGE, J.C.A.: Having read and agreed with the reasoning and conclusion thereby reached in the said lead judgment just delivered by my learned brother Ikyegh, JCA, I have no hesitation in holding and stating that my learned brother Justice J. S. Ikyegh, as earlier stated in his judgment that Rules of Court are not for fancy, or for decoration. They are for orderly presentation of cases. When time is of the essence in keeping with the rules of Court, the time frame must be complied with; or the party in default may lose the advantage provided by the rules of Court and face the consequences of disobedience stated by the rules of Court.
However, I would want to believe, that the law is well settled, that where the Apex Court held to the inevitable conclusion inter alia that:

”The Rules of Court are meant to be obeyed. The purpose of the rules is to regulate matters in Court and assist parties to any suit or appeal to present their cases for the purpose of fair and quick trial or hearing. Where the rules are quickly complied with, there will be quick dispensation of justice.”
See: NIGERIAN NAVY AND ORS. v. LABINJO (2012) 17 NWLR (Pt. 1328) 56 at 84.

In conclusion, I find no merit in the appeal and I also dismiss it and affirm the ruling of the Court below (Idris J.) with N30,000 costs to the Respondent.

JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview in draft the lead judgment just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA. I agree with the reasoning and conclusion contained therein with nothing useful to add.

Appearances

Mr. A. B. Sulu-Gambari with him, Miss C. L. NwohiriFor Appellant

AND

Dr. K.U.K. Ekueme with him, Dr. N. Dimgba, C. Osuji and J. OneleFor Respondent