NIGERIAN NAVY v. SHIPPING CO. SARA B.V & ORS (2021)

NIGERIAN NAVY v. SHIPPING CO. SARA B.V & ORS

(2021)LCN/15063(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/L/686/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

THE NIGERIAN NAVY APPELANT(S)

And

SHIPPING COMPANY SARA B.V 2. ATTORNEY GENERAL OF THE FEDERATION 3. THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER A GROUND OF APPEAL MUST ARISE OR FLOW FROM THE JUDGMENT APPEALED AGAINST

The settled position of the law, as rightly submitted by the 1st Respondent is that for a ground of appeal to be valid and competent, it must be related to the decision appealed against and should constitute a challenge to the ratio of the decision on appeal; Co-Operative and Commerce Bank Plc v. Ekperi (2007) LPELR-876(SC), (2007) 1 SC (PT 11) 130; Okafor v. Abumofuani (2016) LPELR-40299(SC). The ground of appeal must arise or flow from the judgment appealed against, otherwise, it would be incompetent. An issue for determination must in turn be distilled from a competent ground of appeal, Odeh v. FRN (2008) LPELR-2205(SC), (2008) 3-4 SC 1147; Ehuwa v. Ondo State IEC & Ors (2006) LPELR-1056(SC), (2006) 11-12 SC 102. An incompetent ground of appeal can only birth an incompetent issue for determination; Akpan v. Bob (2010) LPELR-376(SC); Tahir & Anor. v. BON Ltd (supra). No competent issue can arise from an incompetent ground of appeal; Njemanze v. Njemanze (2013) LPELR-19885(SC). PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER PROCEEDINGS CAN BE CONDUCTED OUTSIDE THE PRESCRIBED PERIOD MENTIONED IN A STATUTE OF LIMITATION

When a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. The plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. An action is statute-barred when it is instituted after the period of limitation has elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable and must be struck as not being properly instituted before the Court; Ibrahim v. Judicial Service Committee, Kaduna State & Anor (1998) LPELR-1408(SC); Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345; CBN v. Okojie (2004) 10 NWLR (Pt. 882) 488; Hassan v. Aliyu & Ors (2010) LPELR-1357(SC). PER ONYEKACHI AJA OTISI, J.C.A.

EFFECT OF A STATUTE OF LIMITATION ON THE ACTION OF A PLAINTIFF

It is important to emphasize that the effect of a statute of limitation on the action of a plaintiff is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief; Hassan v. Aliyu & Ors (supra). Therefore, while the cause of action may be unaffected, the right to enforce that cause of action is lost once a statutory prescribed limitation period has elapsed. PER ONYEKACHI AJA OTISI, J.C.A.

INTERPRETATION OF SECTION 2 (A) OF THE PUBLIC OFFICERS PROTECTION ACT CAP 379 LAWS OF THE FEDERATION OF NIGERIA 1990 REGARDING THE CONDITIONS THAT MUST EXIST BEFORE A PERSON CAN AVAIL HIMSELF OF THE PROTECTION PROVIDED THEREIN

Section 2 (a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 prescribes a limitation period for institution action against a public officer in this manner: “Where any action, prosecution or other proceeding is commenced against any person for an act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any act, law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in the case of a continuance of damage or within three months next after the ceasing thereof. If the action, prosecution or proceeding is at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.” The two conditions which must exist before a person can avail himself of the protection provided by these provisions are – (i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that Law; (ii) The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any Law, public duty or authority or in respect of an alleged neglect or default in the execution of any such Law, duty or authority; Ibrahim v. Judicial Service Committee, Kaduna State & Anor (supra); Ekeogu v. Aliri (supra); Hassan v. Aliyu & Ors (supra). Now, evidence to establish these conditions must be placed before the trial Court, whether at the hearing, whether by pleadings or counter affidavit. PER ONYEKACHI AJA OTISI, J.C.A.

HOW TO PLEAD THE DEFENCE THAT AN ACTION IS STATUTE BARRED

The law is that the defence that an action is statute barred is a special defence that must be specifically pleaded in the statement of defence or in the counter affidavit, as the case may be, before it can be relied on by a defendant in any proceedings; Federal University of Technology Minna, Niger State & Ors v. Olutayo (2017) LPELR-43827(SC); Federal University of Technology v. Okoli (2011) LPELR-9053(CA). Order 26 Rule 6(1) of the then Federal High Court (Civil Procedure) Rules, 2000, under which these proceedings were commenced, provided: (1) A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise. PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER THE DEFENCE THAT AN ACTION IS STATUTE BARRED CAN BE RAISED FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE

It is trite that an appeal is the continuation of the matter at the trial Court. The issue of the action being statute barred was not merely a new issue for which leave of Court was required to raise on appeal. But fundamentally, the conditions required to be in place in order to activate the defence in Section 2(a) of the Public Officers Protection Act have to be proved by evidence. By the provisions of Section 131(1) of the Evidence Act, 2011 (formerly Section 135(1) Evidence Act, 2004), whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist;Ekeagwu v. Nigerian Army (2010) LPELR-1076(SC); Ohochukwu v. AG Rivers State (2012) LPELR-7849(SC). There was no evidence before the lower Court to found the invocation of Section 2(a) of the Act. There was therefore, no pronouncement on the issue by the lower Court. In the appellate jurisprudence, the burden is on the appellant to show how and in what way the trial Court or the Court below erred in its decision; Federal University of Technology Minna, Niger State & Ors v. Olutayo (supra). What is glaringly missing here are therefore twofold: one, leave of Court to raise a fresh issue; and two, leave of Court to adduce fresh or additional evidence. Confronted with a similar issue, this Court in Ajala v. Okogbue & Anor (2010) LPELR-4082(CA), per Ogunwumiju, J.C.A. (now J.S.C.) at pages 4 and 5, held: “The Respondents raised the issue of statute bar for the first time on appeal as their 3rd issue for determination. I agree with the learned senior counsel for the Appellant as ably argued in the reply brief and will not deign to consider the issue at all as it is an affront to the Appellate jurisprudence. The argument of Respondents’ counsel that he can raise the issue of jurisdiction as a new issue for the first time on appeal without leave is preposterous. The issue of whether the action was statute barred did not come before the trial Court and thus, there was no pronouncement on it. Consequently, there was no ground of appeal based on it. Not only that, the issue of an action being statute barred is a substantial question of law, which the Respondents can only raise for the first time on appeal with leave of this Court.” In his contribution to the earlier decision of this Court in Nigerian Institute of International Affairs v. Ayanfalu (2006) LPELR-5960(CA), Salami, J.C.A. (as he then was), said, pages 19 -21: “It is incumbent on the appellant who contends that the action, by efflusion of time was time barred to adduce the evidence manifestly showing that the action was filed outside three months of the receipt of the letter…Furthermore, the special defence of limitation of time, like all special defence, such as res judicata, must be raised in the pleadings of the party who seeks to rely on it, in this case, in the appellant’s further amended statement of defence and counter claim. A special defence which is available to the defendant must be pleaded specially and specifically. Where it is not pleaded, it could not be raised subsequently even on appeal at any stage such as at the Court of Appeal or Supreme Court. In the present case not only was the special defence of limitation of time not raised in the amended statement of defence no scintilla of evidence was adduced in support of the defence of statute bar under S.2 (a) of the Public Officers Protection Act, Cap 379 of the Laws of Federation of Nigeria 1990. Since this does not form part of the defence averred to in its further amended statement of defence and counter-claim it is incompetent, at this stage, on appeal, to seek to raise same…”See also Federal University of Technology Minna, Niger State & Ors v. Olutayo (supra), per Eko J.S.C. Ground 2 of the grounds of appeal is, for the above reasons, therefore incompetent and is hereby struck out. PER ONYEKACHI AJA OTISI, J.C.A.

POSITION OF THE LAW REGARDING CAPACITY TO SUE AND BE SUED

The law is settled that only natural or artificial persons with the requisite juristic personality can initiate legal actions or be proceeded against in such an action to be sued in Courts of law; Ataguba & Co v. Gura (Nig.) Ltd. (2005) LPELR-584(SC); (2005) 2 SC (PT 1), 101. Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name, and not in any other name; The Registered Trustees of The Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) LPELR-22372(SC). Both plaintiffs and defendants should be juristic persons or natural persons existing, or living at the time the action is initiated. This is a complaint that can be raised at this stage. PER ONYEKACHI AJA OTISI, J.C.A.

EFFECT OF AN ACTION WHERE ONE OF THE PARTIES IS NOT A LEGAL PERSON

As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out as being incompetent; Agbonmagbe Bank Ltd. v. Gen. Manager, G.B. Ollivant Ltd, (supra); Provost, Alvan Ikoku College of Education (supra); Akpan & Ors v. Umoren & Ors (2012) LPELR-7909(CA). Where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, there may not be competent parties in the suit and the suit would be incompetent for not being properly constituted as to the parties therein; Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708(SC). PER ONYEKACHI AJA OTISI, J.C.A.

EFFECT OF AN UNAPPEALED FINDING OF A COURT

It is settled that where a finding of a Court is not appealed against, that finding is deemed to be correct and stands;Eze v. PDP (2018) LPELR-44907(SC); Sparkling Breweries Limited & Ors v. Union Bank of Nigeria Limited (2001) LPELR-3109(SC). In the same vein, a judgment not appealed against and or not set aside by a higher Court is a valid and subsisting judgment;Nwokedi & Ors v. Okugo & Ors (2002) LPELR-2123(SC); N.C.C. v. Motophone Ltd & Anor (2019) LPELR-47401(SC). In other words, it is settled that the Nigeria Navy has power to sue and be sued in a Court of law. PER ONYEKACHI AJA OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Lagos State delivered on January 25, 2007 Coram R. Oyindamola Olomojobi, J., in favour of the 1st Respondent.

The facts of the case leading to the appeal can be summarized in this manner: The Appellant, in the course of discharging its duties, arrested the 1st Respondent’s vessel MT Sara B.V., along with other vessels, on suspicion of illegal dealing in petroleum products, the vessel not being registered with the Department of Petroleum Resources of the Nigerian National Petroleum Corporation to engage in carrying petroleum products within the territorial Coast-line of Nigeria. MT Sara B.V. was then moved off the berth to the Nigerian Navy Base NNS BEECROFT on 18/9/2003, where the vessel and the entire crew were held to aid the Appellant in its investigation of the alleged crime. Upon concluding its investigation on 14/11/2003, the Appellant released the vessel, absolving the vessel of any incriminating offence, save for the 15 Polish crew on board.

The 1st Respondent, as plaintiff at the lower Court, subsequently instituted an action against the Appellant, 2nd and 3rd Respondents in Suit No. FHC/L/CS/342/2004, from which this Appeal emanated. The 1st Respondent filed an application ex parte to have the matter placed on the Undefended List. The trial Court granted the said application on 24/5/2004. About a year later, on 6/4/2005, the Appellant filed a Counter-Affidavit. On 18/4/2005, the Appellant’s Counsel notified the trial Court that they had filed a counter affidavit upon which the matter was adjourned to 6/7/2005 for hearing. The matter was finally heard on 1/3/2006. The Respondent’s Counsel made submissions in urging that judgment be entered in their favour, while the Appellant’s Counsel sought for an adjournment to reply, which was granted. The matter was adjourned to 16/5/2006 for reply. Before that date, the Appellant filed a Motion on Notice on 13/6/2006, seeking the leave of the Court to defend the matter and remove the matter from the undefended list. The matter was adjourned severally for the Appellant’s Counsel to reply to the arguments of Respondent’s Counsel. The Appellant’s Counsel however failed to appear for this

purpose. Finally, on 27/11/2006, the trial Court foreclosed the Appellant and adjourned for judgment. On 25/1/2007, the learned trial Judge entered judgment in favour of the 1st Respondent against the Appellant in the sum of $435,060.00 and N355,595.00, and interest on the sums at 12% per annum until judgment and thereafter at 10% till payment of the judgment debt. The Appellant’s motion was still pending at the time, not having been determined one way or the other.

Aggrieved by the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 2/12/2016 on seven grounds of appeal, pages 740-744 of the Record of Appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant’s Brief was filed on 12/7/2019. The 1st Respondent’s Brief was filed on 18/10/2019. The 1st Respondent also filed a Motion on Notice on 18/10/2019 attacking the competence of some of the grounds of appeal and the issues distilled for determination therefrom, which was argued in their Brief. The Appellant filed a Reply Brief on 23/1/2020. All the Briefs were deemed properly filed and served on

7/12/2020. The Appellant had filed a Counter Affidavit to the 1st Respondent’s Motion on 23/6/2020. At the hearing of the appeal on 11/1/2021, the Briefs were respectively adopted by Olanrewaju Osinaike, Esq., for the Appellant, and, by Victor Ogunde, Esq., for the 1st Respondent. Mr. Osinaike urged the Court to allow the appeal and set aside the judgment of the lower Court in its entirety, while Mr. Ogunde urged the Court to dismiss the appeal. Olubanke Odulana, Esq., who appeared for the 2nd and 3rd Respondents, filed no Brief.
The 1st Respondent’s motion, which is in the nature of a Preliminary Objection, shall first be considered.

Motion on Notice
The 1st Respondent seeks the following orders:
1. An Order striking out grounds 2, 3, 4, 5 and 7 of the Appellant’s Notice of Appeal dated and filed on the 2nd December, 2016 for being incompetent.
2. An Order striking out issues 1, 2, 3 and 4 of the issues of determination formulated in the Appellant’s Brief of Argument filed on the 12th July, 2019 for being incompetent.

The grounds for the application were that:
a. Grounds 2 3, 4, 5 and 7 of the grounds of appeal as contained in the Appellant’s Notice of Appeal dated the 2nd December, 2016 do not arise or flow from the Judgment of the lower Court.
b. Issues 1, 2, 3 and 4 of the issues distilled by the Appellant for determination from 2 3, 4, 5 and 7 grounds of appeal are incompetent and should be struck out.

In support of the application was an affidavit of seven paragraphs deposed to by Tunde Tiamiyu, Litigation Officer in the law firm of Babajide Koku & Co., the 1st Respondent’s Counsel. Annexed thereto as Exhibit A was the Notice of Appeal filed by the Appellant. Learned Counsel for the 1st Respondent, Mr. Ogunde, adopted the arguments in support of the Motion as canvassed in the 1st Respondent’s Brief and urged the Court to uphold their objection.

The Appellant filed a Counter Affidavit of 11 paragraphs deposed to by Raphael Ipinyomi, Counsel in the firm of Osinaike & Associates, Appellant’s Counsel. Annexed as Exhibit A was a copy of the 1st Respondent’s Brief hereto. Mr. Osinaike adopted their arguments in opposition to the Motion on Notice as canvassed in the Appellant’s Reply Brief and urged the Court to dismiss the Respondent’s Motion.

Arguments
Counsel for 1st Respondent submitted that an appeal must challenge the ratio decidendi or decision of a Court, citing the case of Chukwu & Ors v. M. T. N (Nig) Comm. Ltd & Anor (2016) LPELR – 41053 (CA). Defining the ratio decidendi of the Court as the reason for deciding or the legal reasoning that led to the Court’s decision, reliance was placed on Omega Bank Plc v. Government of Ekiti State (2007) ALL FWLR (Pt. 386) 658 at 687 – 688; Amobi v. Nzegwu & Ors (2013) LPELR-21863(SC). A competent ground of appeal and a competent issue for determination must flow from the judgment appealed against, relying on Ahmaddamzomo v. Musa & Anor. (2013) LPELR-20761(CA); Tahir & Anor. v. BON Ltd (2006) LPELR – 11654 (CA). Counsel contended that grounds 2, 3, 4, 5 and 7 of the Notice of Appeal did not arise or flow from the decision of the trial Court, the subject matter of this appeal. It was argued that the reason given by the learned trial Judge for entering judgment against the Appellant and in favour of the 1st Respondent, was well stated in its

judgment. Counsel cited the case of AG Rivers State v. Ude (2006) 6-7 SC, Pg.131 at 137 paras 15-40, where the Supreme Court observed that an appeal is a complaint against a decision and not a licence to raise all kinds of issues that have no relevance to the issue or issues upon which the decision complained against was based. When the factual basis of a notice of appeal is false or does not challenge the ratio decidendi, the ground of appeal is incompetent, relying on Okparanta v. Elechi (2007) ALL FWLR (Pt. 358) 1185. An issue distilled for determination from a ground of appeal must be live issues which flow from the ratio decidendi of the decision of Court that is appealed against, relying on Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt.1033) 402 at 430. It was submitted that issues for determination that are hinged on incompetent grounds of appeal, are affected by such incompetency and ought to be struck out, citing Obi-Odu v. Duke (2006) 1 NWLR (Pt. 961) 375; Federal College of Education v. Akinyemi (2009) All FWLR (Pt.469) 1784. On these submissions, the Court was urged to resolve the preliminary objection in favour of the 1st Respondent and strike out grounds 2, 3, 4, 5 and 7 of the Notice of Appeal.

For the Appellant, in reply, it was submitted that grounds 2, 3, and 7 of the Appellant’s Notice of Appeal were complaints against the jurisdictional competence of the trial Court to entertain and determine the suit, and being issues of jurisdiction, the Appellant was entitled to raise them at any stage of the proceedings, relying on Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195; F.R.I.N v. Gold (2007) 11 NWLR (Pt. 1044) 1 at 19.

Specifically, on grounds 4 and 5 of the Appellant’s Notice of Appeal, Counsel posited that a look at the judgment of the trial Court would reveal that these grounds were complaints that are at the centre of the decision of the trial Court appealed against. Counsel argued that the decision of this Court in Tahir & Anor. v. BON Ltd. (supra), relied on by the 1st Respondent supported the Appellant’s position.
The Court was urged to discountenance and dismiss the Preliminary objection of the 1st Respondent and hear this appeal on the merit.

Resolution
The settled position of the law, as rightly submitted by the 1st Respondent is that for a ground of appeal to be valid and competent, it must be related to the decision appealed against and should constitute a challenge to the ratio of the decision on appeal; Co-Operative and Commerce Bank Plc v. Ekperi (2007) LPELR-876(SC), (2007) 1 SC (PT 11) 130; Okafor v. Abumofuani (2016) LPELR-40299(SC). The ground of appeal must arise or flow from the judgment appealed against, otherwise, it would be incompetent. An issue for determination must in turn be distilled from a competent ground of appeal, Odeh v. FRN (2008) LPELR-2205(SC), (2008) 3-4 SC 1147; Ehuwa v. Ondo State IEC & Ors (2006) LPELR-1056(SC), (2006) 11-12 SC 102. An incompetent ground of appeal can only birth an incompetent issue for determination; Akpan v. Bob (2010) LPELR-376(SC); Tahir & Anor. v. BON Ltd (supra). No competent issue can arise from an incompetent ground of appeal; Njemanze v. Njemanze (2013) LPELR-19885(SC). These are all correct statements of the law. The grounds of appeal and issues distilled therefrom, which are in contention herein, ought to conform thereto.

Grounds 2, 3, 4, 5 and 7 of the Notice of Appeal, shorn of particulars, were:
Ground 2
The trial Court erred in law when it proceeded to hear and determine the 1st Respondent’s suit despite the fact that the suit was statute barred and the trial Court lacked jurisdiction by virtue of Section 2(a) of the Public Officers Protection Act.
Ground 3
The trial Court lacked jurisdiction to have entertain the suit that was commenced against a non-juristic person and thereby occasioned a miscarriage of justice.
Ground 4
The trial Court erred in law when it awarded the sum of $435,060.00 (Four Hundred and Thirty-Five Thousand and Sixty United States Dollars) in favour of the 1st Respondent as damages and thereby occasioned a miscarriage of justice.
Ground 5
The trial Court erred in law when the Court awarded the sum of N355,595 (Three Hundred and Fifty-Five Thousand, Five Hundred and Ninety Five Naira) in favour of the 1st Respondent and thereby occasioned a miscarriage of justice.
Ground 7
The trial Court lacked jurisdiction to entertain the 1st Respondent’s suit as the suit was not initiated by due process of law and thereby occasioned a miscarriage of justice.

The competence of these grounds shall now be examined.
Ground 2
Ground 2 complained that the suit was statute barred in that the jurisdiction of the lower Court was affected by the provisions of Section 2(a) of the Public Officers Protection Act. This issue was not at all raised in the lower Court. There was no pronouncement of the lower Court on that issue. The question is whether it could be raised at this stage, without leave of Court.

Ibrahim v. Judicial Service Committee, Kaduna State & Anor (1998) LPELR-1408(SC); Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345; CBN v. Okojie (2004) 10 NWLR (Pt. 882) 488; Hassan v. Aliyu & Ors (2010) LPELR-1357(SC).

authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in the case of a continuance of damage or within three months next after the ceasing thereof. If the action, prosecution or proceeding is at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The two conditions which must exist before a person can avail himself of the protection provided by these provisions are –
(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that Law;
(ii) The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any Law, public duty or authority or in respect of an alleged neglect or default in the execution of any such Law, duty or authority; Ibrahim v. Judicial Service Committee, Kaduna State & Anor (supra); Ekeogu v. Aliri (supra);

Hassan v. Aliyu & Ors (supra). Now, evidence to establish these conditions must be placed before the trial Court, whether at the hearing, whether by pleadings or counter affidavit.

The law is that the defence that an action is statute barred is a special defence that must be specifically pleaded in the statement of defence or in the counter affidavit, as the case may be, before it can be relied on by a defendant in any proceedings; Federal University of Technology Minna, Niger State & Ors v. Olutayo (2017) LPELR-43827(SC); Federal University of Technology v. Okoli (2011) LPELR-9053(CA). Order 26 Rule 6(1) of the then Federal High Court (Civil Procedure) Rules, 2000, under which these proceedings were commenced, provided:
(1) A party shall plead specifically any matter (for example,
performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.
In the instant case, which was commenced on the undefended list procedure, there was no deposition in the counter affidavit that at all raised the defence that the action was statute barred.

What is glaringly missing here are therefore twofold: one, leave of Court to raise a fresh issue; and two, leave of Court to adduce fresh or additional evidence.
Confronted with a similar issue, this Court in Ajala v. Okogbue & Anor (2010) LPELR-4082(CA), per Ogunwumiju, J.C.A. (now J.S.C.) at pages 4 and 5, held:
“The Respondents raised the issue of statute bar for the first time on appeal as their 3rd issue for determination. I agree with the learned senior counsel for the Appellant as ably argued in the reply brief and will not deign to consider the issue at all as it is an affront to the Appellate jurisprudence. The argument of Respondents’ counsel that he can raise the issue of jurisdiction as a new issue for the first time on appeal without leave is preposterous. The issue of whether the action was statute barred did not come before the trial Court and thus, there was no pronouncement on it. Consequently, there was no ground of appeal based on it. Not only that, the issue of an action being statute barred is a substantial question of law, which the Respondents can only raise for the first time on appeal with leave of this Court.”

In his contribution to the earlier decision of this Court in Nigerian Institute of International Affairs v. Ayanfalu (2006) LPELR-5960(CA), Salami, J.C.A. (as he then was), said, pages 19 -21:
“It is incumbent on the appellant who contends that the action, by efflusion of time was time barred to adduce the evidence manifestly showing that the action was filed outside three months of the receipt of the letter…Furthermore, the special defence of limitation of time, like all special defence, such as res judicata, must be raised in the pleadings of the party who seeks to rely on it, in this case, in the appellant’s further amended statement of defence and counter claim. A special defence which is available to the defendant must be pleaded specially and specifically. Where it is not pleaded, it could not be raised subsequently even on appeal at any stage such as at the Court of Appeal or Supreme Court. In the present case not only was the special defence of limitation of time not raised in the amended statement of defence no scintilla of evidence was adduced in support of the defence of statute bar under

S.2 (a) of the Public Officers Protection Act, Cap 379 of the Laws of Federation of Nigeria 1990. Since this does not form part of the defence averred to in its further amended statement of defence and counter-claim it is incompetent, at this stage, on appeal, to seek to raise same…”
See also Federal University of Technology Minna, Niger State & Ors v. Olutayo (supra), per Eko J.S.C. Ground 2 of the grounds of appeal is, for the above reasons, therefore incompetent and is hereby struck out.

Issue 1 distilled for determination was distilled from grounds 1 and 2. A competent issue is rendered incompetent where it is formulated from a competent and an incompetent ground of appeal; Jev v. Iyortyom (2014) LPELR-23000(SC); Abraham v. FRN (2018) LPELR-44136(CA). The infected issue 1 is therefore also struck out.

Ground 3
The law is settled that only natural or artificial persons with the requisite juristic personality can initiate legal actions or be proceeded against in such an action to be sued in Courts of law; Ataguba & Co v. Gura (Nig.) Ltd. (2005) LPELR-584(SC); (2005) 2 SC (PT 1), 101. Juristic or legal personality can only be donated by the enabling law.

This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name, and not in any other name; The Registered Trustees of The Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) LPELR-22372(SC). Both plaintiffs and defendants should be juristic persons or natural persons existing, or living at the time the action is initiated. This is a complaint that can be raised at this stage. Ground 3 is therefore a competent ground of appeal.

Grounds 4 and 5
Grounds 4 and 5 are complaints arising from the judgment on appeal, particularly arising from the reliance of the trial Court on the contents of Exhibit A, a Valuation Report. They are competent grounds.

Ground 7
Ground 7 is a complaint on the competence of the originating processes. Any defect in competence of the originating processes is fatal to the exercise of the Court’s jurisdiction in the matter; Obaro v. Hassan (2013) LPELR-20089(SC); China Geo-Engineering Corporation Nig Ltd v. Isa (2007) LPELR-8954(CA). It is an issue of jurisdiction and therefore competent.

The preliminary objection therefore succeeds in part. Ground 2 of the grounds of appeal and issue 1, distilled from grounds 1 and 2 of the grounds of appeal are hereby struck out. Grounds 3, 4, 5 and 7 are therefore competent grounds of appeal.

Substantive appeal
The Appellant formulated the following competent issues for determination of this appeal, which are now renumbered No 1 – 4:
1. Whether the trial Court was right to have assumed jurisdiction when the 1st Respondent’s action was not commenced by due process and in compliance with provisions of Order 6 R. 8 of the Federal High Court (Civil Procedure) Rules, 2000. (Ground 7)
2. Whether the trial Court was right to have proceeded to hear and determine the 1st Respondent’s action against a non-juristic entity thereby rendering the whole proceedings a nullity. (Ground 3)
3. Whether the trial Court was right to have ascribed probative value to “Exhibit A” when the document violates the provisions of Sections 91 (3) (Now S. 83 (3) of the Evidence Act 2011 ) and the Rule against Hearsay Evidence (Now codified in

37 & 38 also of the Evidence Act, 2011 whilst also relying on the same document to award 1st Respondent $435,000.00 and N355,595.00 special damages and interest without pleading and strict proof. (Ground 4 & 5).
4. Whether the Appellant’s right to fair hearing encapsulated in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was not breached when the trial Court failed to consider the Appellant’s Counter Affidavit to the 1st Respondent’s Motion dated 14th April, 2004 and proceeded to enter judgment without first determining, one way or the other the Appellant’s Motion dated 9th June, 2006, which sought the leave of the Court to defend the matter on the merit. (Ground 6).
The 1st Respondent adopted these issues for determination of the appeal. I shall also adopt the same, resolving them in the following order: Issues 1, 2, 4 and 3.

Issue 1
Counsel for the Appellant submitted that for a Court to be competent to adjudicate over an action such action must have been initiated by the due process of law, relying on Wabara v. Nnadede (2009) 16 NWLR (PT 1166) 204, 209. The

provisions relied on were Order 6 Rules 8 and 10 of the Federal High Court (Civil Procedure) Rules, 2000. The complaint of the Appellant was that the Writ of Summons was not accompanied by a statement of claim, as provided in Order 6 Rule 8, and duly endorsed by the 1st Respondent’s Counsel who settled the Writ.

Counsel further argued, assuming the suit was initiated by due process of law, that they were not put on notice as required by Order 9 Rule 7 (1) and (2). That the nature of the prayers sought by the 1st Respondent were not such as could be granted by an ex parte motion. There was no urgency to warrant the grant of the orders sought ex parte. Further, that the order was made ex parte on 16/4/2004, which should last for only 14 days by Order 9 Rule 12 of the Rules. But that on 1/3/2006 when the application for summary judgment was taken, the ex parte order had already expired. Counsel submitted that there was no foundation for the summary judgment to stand. The Court was urged to resolve the issue in favour of the Appellant.

For the 1st Respondent, it was submitted that there is no provision in the Legal Practitioners Act that regulates the issuance and signing of Court processes. Regulations relating to the issuance of Court processes can only be found in the rules that regulate the practice and procedure peculiar to the different Courts in Nigeria. Counsel reasoned that to hold that Legal practitioners were the only persons entitled to sign Court processes would make nonsense of the provisions of the rules of Court which permit a litigant seeking to represent himself to issue and sign processes and a fortiori the constitutional right of a litigant to appear in person to prosecute or defend a claim.

Counsel for the 1st Respondent submitted that Order 6 (10) of the Federal High Court (Civil Procedure) Rules 2000 did not contemplate the signature of a legal practitioner to validate a writ as a legal practitioner who sued on behalf of the plaintiff but that he has the option to endorse the writ with either his name or his firm’s name. There was no requirement in the rules that a legal practitioner must sign the process after endorsing his name thereon. The case of David v. Jolayemi (no citation) and the provisions of Section 2(1) of the Legal Practitioner Act were cited and relied

Counsel for the 1st Respondent submitted that the provisions of S.2 (1) of the Legal Practitioners Act do not touch on the requisite endorsements that confer validity on an originating process which, he reasoned, was a matter left for the Federal High Court Act and the rules of civil procedure made pursuant to the Act. He argued that the question of the competence of the Writ of Summons authored and issued by the 1st Respondent’s Counsel, Babajide Koku, cannot be faulted on the ground that it was signed on behalf of Counsel, whose name was endorsed on the writ in satisfaction of the requirement of the rules.He further argued, assuming without conceding that the signature of Counsel was required, the requirement of a signature was satisfied by the endorsement of the name of Babajide Koku on the writ. Reliance was placed on the definition of signature, as contained in Black’s Law Dictionary 7th Edition page 1387, and as defined in the case of London County Council v. Agricultural Food Products Ltd. [1955] 2 All ER 229, inter alia. For as long as the name of Mr. Babajide Koku (now SAN) was endorsed or affixed to the writ and not the name of

his firm, the requirement of signature was satisfied. Counsel, relied on a number of judicial pronouncements to submit that the current judicial attitude is to lean in favour of substantial and not technical justice where procedural defects exist.

On the contention that the 1st Respondent failed to front load its originating process with a statement of claim and relevant documents, it was submitted that the undefended list procedure set out under Order 24 of the Federal High Court (Civil Procedure) Rules 2000 does not contemplate the filing of a statement of claim or front-loaded documents. By these provisions, the trial Court will only order pleadings where leave to defend is granted to the defendant. It was further submitted that the submissions of the Appellant bordering on the fate and life span of ex-parte orders are misconceived and of no relevance. The judgment of the trial Court was not predicated on an ex-parte order. The order setting a matter for hearing under the undefended list obtained ex-parte is not an interim order but a final order, which takes effect as soon as the order is granted. The Court was urged to resolve this issue against the Appellant.
In the Reply Brief, Counsel for the Appellant relied on the case of PMB Ltd v. NDIC (2011) 12 NWLR (PT 1261) 253.

Resolution
The action leading to this appeal was commenced by the 1st Respondent by way of Originating Motion ex parte pursuant to Order 24 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000, which provides:
1. Whenever application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the Plaintiff to the Registrar for the issuance of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as

there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3. (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause list and the Court may order pleadings, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) of this order, or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgement given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally.

The Undefended List procedure, governed by these provisions has received established interpretation in a number of judicial pronouncements. Basically, the purpose of the Undefended List procedure is to enable a plaintiff to obtain quick judgment in clear cases where the defendant has no defence to the claim of debt or liquidated sum by the plaintiff, and it is inexpedient to allow a defendant to defend for mere purposes of delay; Ataguba & Co. v. Gura (Nig) Ltd (2005) LPELR-584(SC); Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283, (1990) LPELR-1801(SC); Akahall & Sons Ltd v. NDIC (2017) LPELR-41984(SC).
By this peculiar procedure, an application is first made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand. The application must be supported by an affidavit which would set forth the grounds upon which the claim is based and stating that, in the deponent’s belief, there is no defence thereto. The affidavit evidence of the plaintiff must reveal facts that ground the belief that the defendant has no defence to the action. This is fundamental, because where there are uncertainties or nebulous depositions, the matter cannot be heard under the undefended list procedure.

The Court, if satisfied that there are good grounds for believing that there is no defence thereto, shall enter the suit for hearing in the “Undefended List”, and mark the writ of summons accordingly. A date for hearing shall then be given. The writ of summons served on defendant, if the order of Court is granted, is a specially and peculiarly endorsed writ of summons now marked undefended.
Under this procedure, after the writ of summons marked Undefended and served on the defendant, the defendant is required to file in Court, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. The Court must scrutinize the affidavit evidence of the defendant attached to the notice of intention to defend to see if a defence has been disclosed on the merit. Where the defendant succeeds in creating doubts as to the veracity of the plaintiff’s claims, a defence has been disclosed on the merit.

At that point, the Court shall grant leave to the defendant to defend the action and the suit shall be removed from the Undefended List and transferred to the general cause list. The Court may then order pleadings, or proceed to hearing without further pleadings. Thus, pleadings may or may not be ordered by the trial Court where the conclusion that the defendant has disclosed a defence on the merit has been reached. Therefore, by the Undefended List procedure, pleadings need not filed alongside the originating motion ex parte for an order to have the writ marked undefended.
The Undefended List procedure, succinctly described as sui generis in Uhembe & Anor v. Parkes (2013) LPELR-20273(CA), per Sankey, J.C.A., is governed by this special procedure. The provisions of Order 6 of the Federal High Court (Civil Procedure) Rules, 2000, are unapplicable herein. The contention of the Appellant’s Counsel that the 1st Respondent had failed to file and attach a statement of claim with the said writ of summons, is misconceived and not in line with the peculiarities of the undefended list procedure. For this same reason, the complaint that the action was commenced by an ex parte application and contrary to the provisions of Order 9 Rule 7(1) and (2), and (12) is misconceived. These provisions are completely unapplicable and alien to the Undefended List procedure.

The Appellant further complained that the writ of summons was not endorsed by the 1st Respondent’s Counsel, who settled the writ, in compliance with Order 6 Rule 10(1), which provides:
Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiffs address and the legal practitioners name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
Now, this issue was not brought before the lower Court at all. In Leadership Newspaper Group Ltd & Ors v. Mohammed (2017) LPELR-42871(CA) the sole issue for determination was:
Whether the suit leading to this appeal was initiated by due process when the writ of summons was neither signed by the respondent nor an identifiable legal practitioner and whether the said writ of summons is valid.
The writ of summons therein was in respect of a matter commenced at the High Court of the Federal Capital Territory under the High Court of the Federal

Capital Territory (Civil Procedure) Rules. Order 4 Rule 12(1) of the said Rules contained provisions similar to the provisions of Order 6 Rule 10(1) of the Federal High Court (Civil Procedure) Rules, 2000. This Court, per Akomolafe-Wilson, J.C.A., considered the said provisions and held:
“A careful examination of Order 4 and Form 1 reveals that there is no provision for the legal practitioner to sign the writ of summons…
In the instant case, the writ of summons was rightly endorsed by the legal practitioner where it stated that “This writ was issued by DAFE & DAFE of Suite 202, His Glory Plaza, behind U.B.A. Plc, Adetokunbo Ademola Crescent, Wuse 2, Abuja and who is the Legal Practitioner of the said plaintiff who resides at Wuse 2, Abuja.” The writ of summons was also signed by the Registrar. (See page 1 of Record of Appeal). By the combined effect of the provisions of Rules 1 and 15 of Order 4 of the High Court of the Federal Capital Territory, Abuja, (Civil Procedure Rules) 2004 a writ of summons is issued when signed by a Registrar or other officer of Court duly authorized to sign the writ. In the circumstances, a writ of summons

issued and signed by the Registrar of Court is valid and competent. See R.M.A.F. v. Onwuekweikpe (2010) All FWLR (Pt.528) 947 at p.958 paragraphs C – D.
The Appellant placed heavy reliance on the case of Okafor v. Nweke (supra) to contend that Court processes must be signed by a legal practitioner and that if a Court process was not signed by a legal practitioner who purportedly issued it, such a process is grossly incompetent and liable to be struck out.
Let me state here that the position of the law as stated by the Appellant’s counsel has been over generalized and overstretched. There is a misconception of the law to the effect that all Court processes must be signed by a legal practitioner to render the process valid. It is now not unusual for many learned counsel to fall into this same error. It is pertinent to clarify that the principle of law has been established and it is immutable that where a law requires a Court process to be signed by a legal practitioner, failure to sign the said process as required by law renders such a process incompetent and liable to be struck out. However, I am of the view that a statute or Rule of Court must

specifically provide that such a process must be signed by a legal practitioner to render non-signing by one incompetent.
(Emphasis mine)
I agree completely with the views expressed therein. The requirement in Order 6 Rule 10(1) is for the plaintiff’s address and the legal practitioner’s name or firm and a business address to be endorsed on the writ of summons, where the plaintiff sues by a legal practitioner. Similar endorsement of the plaintiff’s address of residence, occupation and address for service is required by Order 6 Rule 10(2). The signature of either the legal practitioner, under Order 6 Rule 10(1) or of the plaintiff suing in person, under Order 10 Rule 10(2), is not required. The case of PMB Ltd v. NDIC (supra) relied on by the Appellant’s Counsel, was in respect of an unsigned notice of appeal, which is not the case herein.
I am also of the humble view that non-compliance with the provisions regarding the endorsement as required by those Rules would be an irregularity which will not, without more, vitiate the proceedings, more so when the defendant has taken a step in the proceedings. See Order 3 of the Rules on the effect of non-compliance.

However, this is not the case here. The Writ of Summons was duly endorsed with the plaintiff’s address, the name and firm name of the legal practitioner, as well as the business address. This issue is therefore resolved against the Appellant.

Issue 2
The Appellant’s Counsel has argued the trial Court was wrong to have proceeded to hear and determine the 1st Respondent’s action against a non-juristic entity thereby rendering the whole proceedings a nullity. The well settled principle of law is that parties to an action must be juristic persons, that is, natural persons or persons recognised by law; citing Lion of Africa Insurance Co. Ltd v. Esan (1999) 8 NWLR (Pt. 614) 197, 201. For an action to be properly constituted as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is a nullity and liable to be struck out as being incompetent, relying

on the authorities of Shitta v. Ligali (1941) 16 NLR 23; Agbonmagbe Bank Ltd v. General Manager G.B. Ollivant Ltd. and anor (1961) 1 All NLR 116; Rossek v. A.C.B Ltd. (1993) 8 NWLR (Pt. 312) 392; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Counsel further submitted that, as recognized by law, some non-legal entities can sue and be sued eo nomine. It has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law-
a) A legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or
b) A right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorised by their own law to sue and be sued but not incorporated.

It was contended that in the instant appeal, the Appellant, sued as “the Nigerian Navy”, was not a juristic person capable of suing or being sued. The enabling law that create the Nigerian Navy only

created it as a composite part of the Armed Forces, citing Section 217(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and Section 1(1) of the Armed Forces Act Cap A20 LFN 2004. Counsel argued that from these provisions, the intendment of the law makers was not to confer juristic personality on the Appellant. The Court was urged to hold that the action of the 1st Respondent was not properly constituted.

In his reply, Counsel to 1st Respondent relied on the decision of this Court in Central Bank of Nigeria v. Shipping Company SARA B.V. & 3 Ors No 1 (2015) 11 NWLR (PT.1469) 130 at 159-160 in which the issue of the juristic personality of the Appellant raised by the same Appellant’s Counsel, then acting for the Central Bank of Nigeria was resolved against the appellant therein. None of the parties therein appealed against the said decision.

It was submitted further that the law will permit the ascription of juristic personality to a statutory body to avoid injustice to third parties affected by its actions, relying on Kwage & Ors v. Upper Sharia Court Gwandu & Ors (2017) LPELR-42508 (CA). The Court was urged to resolve this issue against the Appellant.

Resolution
The Appellant’s Counsel has, in his submissions, presented the correct position of the law. Both plaintiffs and defendants should be juristic persons or natural persons existing, or living at the time the action is initiated. For an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant each with the legal capacity to sue or be sued. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out as being incompetent; Agbonmagbe Bank Ltd. v. Gen. Manager, G.B. Ollivant Ltd, (supra); Provost, Alvan Ikoku College of Education (supra); Akpan & Ors v. Umoren & Ors (2012) LPELR-7909(CA). Where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, there may not be competent parties in the suit and the suit would be incompetent for not being

properly constituted as to the parties therein; Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708(SC).

The case of Central Bank of Nigeria v. Shipping Company SARA B.V. & 3 ors No.1 (supra) also reported in (2015) LPELR-24664(CA) is a valid and subsisting judgment of this same Court. Olanrewaju Osinaike Esq. appeared for appellant therein while V. O. Ogude for the 1st respondent therein. These same Counsel are before this Court in the instant appeal, Mr. Osinaike for the Appellant herein and Mr. Ogunde for the 1st Respondent herein.

The instant issue was whether the trial Court was right to have proceeded to hear and determine the 1st Respondent’s action against a non-juristic entity thereby rendering the whole proceedings a nullity. One of the issues formulated by the appellant’s Counsel in Central Bank of Nigeria v. Shipping Company SARA B.V. & 3 ors No.1 (supra) was whether the garnishee proceedings was properly constituted having regard to the Appellant’s contention that the Nigeria Navy, the 2nd Respondent herein is not a juristic person against whom a judgment of Court can be enforced against.

This Court, in this same Division of the Court, considered the provisions of Section 217(1) of the Constitution and Section 1(1) Armed Forces Act CAP A20 LFN 2004, also relied on herein by Mr. Osinaike, and held thus:
“Therefore, from the combined provisions of Section 217 of the Constitution and Section 1 & 12 of the Armed Forces Act Cap A20 LFN 2004, it is clear that the Armed Forces comprises of Navy, Army and Air Force…It is implied that having created them separately, a branch of the Armed Forces but united in security issues for the Federal Republic of Nigeria, it has power to sue and be sued in a law Court.”
There was no appeal filed against this pronouncement of the Court.
In the Reply Brief, Mr. Osinaike had argued that Central Bank of Nigeria v. Shipping Company SARA B.V. & 3 ors No.1 (supra) arose from garnishee proceedings, which are sui generis, distinguishable and not in tandem with the principal cause of action in this case. I am not impressed by this argument. The issue there was whether or not the Appellant, Nigerian Navy, was a juristic person. The issue here is whether or not the Appellant, Nigerian Navy, is a juristic person. That issue did not change with the coloration of the cause of action.

Issue 4
It was contended that the Appellant’s right to fair hearing encapsulated in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)

was breached when the trial Court failed to consider the Appellant’s Counter Affidavit to the 1st Respondent’s Motion dated 14/4/2004 and proceeded to enter judgment without first determining, one way or the other the Appellant’s Motion dated 9/6/2006, which sought the leave of the Court to defend the matter on the merit. Any decision of the Court reached upon breach or denial of fair hearing amounts to a nullity and is liable to be set aside. Reliance was placed on F.B.N. Plc v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Part 1216) 247, 303. A hearing can only be seen to be fair indeed when all parties to the dispute are accorded an adequate opportunity of a fair hearing. If one of the parties is denied an opportunity of hearing, the hearing of the matter cannot in any way be qualified as fair.

Counsel for the Appellant contended that the Appellant was not given the right to be heard fairly for two reasons. First, the learned trial Judge erroneously disregarded the Appellant’s counter affidavit dated 6/4/2005 to the main suit as well as the motion dated 9/6/2006 seeking the leave of the Court to defend the matter on the merit

before judgment was entered in favour of the 1st Respondent. Relying on the case of Osafile v. Odi (No 1) (1990) 3 NWLR (Pt. 137)130, 178 it was submitted that a Court is bound to consider the case validly presented to it by parties before it. The Court must hear a motion or any process before it, however, unmeritorious and give a decision one way or the other for it will be a breach of a litigant’s right to fair hearing not to deliver judgment without considering the motion or process before it, relying on Newswatch Communications Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144,168.

Secondly, the Appellant was not served with the letter of 5/11/2006, which the learned trial Judge relied on to come to the conclusion that the Appellant was not interested and had waived their right to be heard fairly. It was submitted that it is the duty of a Court to confirm service of Court processes and any other process such as the letter from the law firm of Babajide Koku & Co which was intended to serve as the hearing notice to the Appellant. Reliance was placed onF.B.N Plc v. T.S.A. Ind. Ltd. (Supra). The Court was urged to decide this issue in favour of the Appellant.

For the 1st Respondent, it was submitted that fair hearing is not an abstract term but must be real and considered in the light of facts and circumstances surrounding the case; citing Olatunbosun v. Anenih (2009) 15 NWLR (Pt 1165) 560 at 573. Counsel relied on the history and circumstances of the case at the lower Court as borne out by the Record of Appeal. He also relied on the case ofImasuen v. University of Benin (2010) 3 NWLR (Pt. 1182) 591 at 616; A.S.T.C v. Quorum Consortium Limited (2009) 9 NWLR (PT.1145) 1 at 35.

On the Appellant’s contention that its application to be granted leave by the lower Court to defend the suit was not heard nor determined by the trial Judge, it was submitted in view of the order by the trial Judge foreclosing the Appellant’s right to reply, all processes filed by the Appellant including its application filed on 6/6/2006, which it was not available to adopt, were deemed abandoned. Reliance was placed on decisions including Nasco Management Services Ltd v. A.N. Amaku Transport Ltd (2002) FWLR (PT.135) 652. Rules of equity help only the vigilant and they do not assist an indolent party who

fails to pursue his right diligently and within a reasonable time; citing NAFDAC v. Onwuka (2013) LPELR-22316(CA); Bongo v. Gov. Adamawa State (2013) 2 NWLR (Pt. 1339) 403. Where a party has been given the opportunity to present his case but failed to do so, he cannot complain of denial of fair hearing; relying on Chidoka v. F. C. F. C Ltd (2013) 5 NWLR (Pt. 1346) 144. The Court was urged to resolve this issue against the Appellant.

Resolution
In resolving this issue, it would be useful to look into the proceedings before the lower Court as transcribed in the Record of Appeal. The trial Court had granted the 1st Respondent’s application ex parte to place the suit on the Undefended List on 24/5/2004. On 6/4/2005, about a year later, the Appellant filed a Counter-Affidavit. The proceedings before the trial Court thereafter were quite revealing.

On 18/4/2005, the following transpired in the lower Court, page 177 of the Record of Appeal:
Ogunde: Matter is for mention. We want a hearing date.
Oniyangi: Yes, we have filed a counter affidavit.
Court: 6/7/05 for hearing.

On 6/7/2005, the following transpired, pages 179 – 180 of the Record of Appeal:
Ojeleke: Matter is on the undefended list. It is listed for today for hearing.
Oniyangi: It is no longer on the undefended list we have filed a counter affidavit 6/4/05.
Ojeleke: We ask for a hearing date.
Court: Adjourned to 18/10/2005 for hearing.

Then on 21/11/2005, the following transpired, page 181 of the Record of Appeal:
Esin: Matter is for mention. I ask for a date for the hearing of our application. It was dated 16/4/04. We are relying on our writ and affidavit in supports.
Oniyangi: I filed a Counter Affidavit dated 6/4/05.
Court: 1/3/2006 for hearing.

On 1/3/2006, the following transpired, page 182 of the Record of Appeal:
Ogunde: Matter is for hearing
Oniyangi: We have filed a counter affidavit.
Court: Case stood down at 10.45 am.

The 1st Respondent’s Counsel then argued their case, submitting that the Counter Affidavit had not disclosed a defence on the merit. The matter was thereafter adjourned for reply by Appellant’s Counsel. Before the next date, the Appellant filed a Motion on Notice on 13/6/2006, seeking leave of Court

to defend the matter and to remove the matter from the undefended list to the general cause list, pages 190 – 191 of the Record of Appeal.

On 15/6/2006, the Appellant’s Counsel was absent. The 1st Respondent’s Counsel asked for another hearing date and undertook to notify the Appellant’s Counsel. The matter was adjourned by the trial Court to 20/9/2006 for reply by the defence counsel, page 192 of the Record of Appeal. On 30/10/2006, the matter was further adjourned to 27/11/06 for reply, page 194 of the Record of Appeal.

On 27/11/2006, the 1st Respondent’s Counsel informed the trial Court that he had written to the Appellant’s Counsel, who was again absent. He asked that the trial Court should foreclose the Appellant’s right of reply and adjourn for judgment, which was granted by the learned trial Judge.

So many issues were thrown up by the proceedings before the lower Court. In the first place, I note that the Record did not indicate that the learned trial Judge was shown any proof of service of the hearing notice to the Appellant’s Counsel. The order for letter to be written to the

Appellant’s Counsel was given at the proceedings of 15/6/2006. A letter, which was, however, written by the 1st Respondent’s Counsel to the Appellant on 5/11/2006, was captured in the judgment of the lower Court. The said letter notified the Appellant of the adjournment of the matter to the 27/11/2006 for their reply. I note that there was no endorsement to confirm service of the said letter on the Appellant.

Without doubt, the Appellant ought to have been served with a hearing notice. There were at least three other adjournments before judgment was delivered. It was the duty of the trial Court to ensure that the Appellant or its Counsel was duly served with hearing notices; Alhaji Yusuf Dan Hausa & Co Ltd v. Panatrade Ltd (1993) LPELR-420(SC); Obiorah v. FRN (2016) LPELR-40965(CA). This is a demand of fair hearing; Yakubu v. The Governor, Kogi State (1995) LPELR-3510(SC); Apeh & Ors v. PDP & Ors (2016) LPELR-40726(SC). There was no proof of service of hearing notice on the Appellant or its Counsel after the hearing of 15/6/2006. Service of processes, including hearing notices from day to day, is so important that any dereliction in

this regard is bound to vitiate the entire proceedings, no matter how well conducted; Apeh & Ors v. PDP & Ors (supra) at pages 21 – 22.

In the judgment delivered on 25/1/2007, the learned trial Judge noted:
“But the defendant did not give a notice in writing that it intended to defend this suit. Instead, an affidavit which is akin to a statement of defence was filed on its behalf months after the day fixed for hearing contrary to the provision of Order 24 Rule 3(1) of the Federal High Court (Civil Procedure) Rules 2000.”
He then concluded:
“The effect of no compliance with the provision of Order 24 Rule 3(1) of the Rules of this Court is that the defendant has no intention to defend this action.”
See pages 205 – 206 of the Record of Appeal. The judgment made no reference to depositions in the counter affidavit filed by the Appellant, which the trial Court was well aware of, but merely stated that “the defendant has no intention to defend this action”. No reference was also made to the Motion on Notice filed by the Appellant, which was still pending.

Under the Undefended List procedure, on the date fixed for hearing, if the defendant has filed no notice of intention to defend supported by an affidavit as prescribed by the Rules, or if the Court declines to grant the defendant leave to defend the suit, the matter shall be heard and judgment given thereon; Order 24 Rule 4. That should be the only business for the day. As at the hearing date, the Appellant had filed a counter affidavit, which the 1st Respondent’s Counsel and the trial Court acknowledged. On the basis of that Counter Affidavit, the matter was adjourned four times before it was heard. Indeed, on 6/7/2005 Counsel for the Appellant reminded the trial Court about their said Counter Affidavit and added that the matter was no longer on the undefended list we have filed a counter affidavit 6/4/05. Neither the 1st Respondent’s Counsel nor the learned trial Judge disputed this fact. In other words, notwithstanding the fact that there was no notice of intention to defend filed, the matter was in effect transferred by the learned trial Judge to the general cause list for hearing on the basis of the counter affidavit filed by the Appellant. And, this had to be so,

because even on 1/3/2006 when the 1st Respondent’s Counsel argued his case, the learned trial Judge proceeded to adjourn the matter for the Appellant’s Counsel to reply.
It must be stressed that regardless of the technical and peculiar nature of the undefended list procedure, a defendant ought not to be shut out from an opportunity to be heard in his defence. This point was made clear by this Court in Aubergine Collections Ltd & Anor v. Habib (Nig) Bank Ltd (2001) LPELR-6981(CA), per Musdapher, J.C.A. (as he then was), at pages 10-11
“It has been stated that the rules have provided for adequate protection in favour of a defendant and if a defendant allowed judgment to be entered against him, he must have acted deliberately by doing nothing. Even if he takes an improper step, such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him a chance to take a proper step to enable the Court to consider the notice of intention to defend. See John-Holt & Co. (Liverpool) Ltd. v. Fajemirokun, U.T.C. (Nig.) Ltd v. Pamotei supra. Thus, even when a defendant neglects to deliver the notice of

intention to defend and an affidavit as required by the rules within the time prescribed before judgment is delivered, he may on filing an affidavit disclosing a defence on the merit and on satisfactorily explaining the delay and the neglect be allowed to defend the action.”
See also Castles & Cubicles Limited v. Altimate Investments Limited (2003) LPELR-5429(CA). See also Nishizawa Ltd v. Jethwani (supra) at page 40 of the E-Report, per Aniagolu, J.S.C.:
“A trial judge, in determining whether to grant the defendant leave to defend in the face of a motion by the plaintiff, supported by his affidavit, for him to sign judgment against the defendant on the ground that there is no real defence to the action, must be guided by the over-all interests of justice, bearing in mind always that, while appreciating the need for procedural requirements to be obeyed, the ultimate dictates of justice must over-ride niggling technicalities.” (Emphasis mine)
As revealed by the proceedings before the trial Court, therefore, the matter had effectively been transferred to the general cause list for hearing by the learned trial Judge.

Now, the trial Court did not order pleadings but heard the matter on the affidavit evidence. But in his judgment, the learned trial Judge made no findings on the depositions in the Counter Affidavit against the 1st Respondent’s claims, on which basis the matter had continuously been adjourned. The motion on notice filed on 13/6/2006 seeking for leave to defend the matter and to remove the matter from the undefended list to the general cause list was also ignored by the learned trial Judge. This motion on notice was pending as at the time judgment was entered in favour of the 1st Respondent.
A fundamental principle of our administration of justice is that all applications properly brought before the Court, must be heard and determined. The principle of fair hearing demands that all pending applications should be heard on its merit; Nalsa & Team Associates v. NNPC (1991) LPELR-1935(SC); Sanyolu & Anor v. Abiodun & Ors (2019) LPELR-48388(CA). InAkpan v. Bob (2010) LPELR-376(SC) the Supreme Court restated the trite position of the law to be that where there are pending processes before the Court, such as motions and applications,

such issues have to be dispensed with before a final decision is taken on the main action. The lower Court was therefore wrong to have proceeded to conclude the matter and deliver judgment, without considering the Counter Affidavit of the Appellant, which was before the lower Court, and without determining the pending Motion filed by the Appellant. It is on this consideration that I resolve issue 4 in favour of the Appellant.

Issue 3
Having resolved Issue 4 in favour of the Appellant, it is pointless and premature to proceed to consider issue 3, which deals with the merits of the claims of the 1st Respondent.

It has been established that the Appellant was not accorded fair hearing. Where a Court hears a matter in breach of fair hearing, the proceedings and orders arising therefrom amount to a nullity, no matter how well conducted the proceedings were. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside; FBN Plc v. TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v. Osiyi (2017) LPELR-42471(SC); Achuzia v. Ogbomah (2016) LPELR-40050(SC). These are established principles of law.

I therefore, allow this appeal on this ground and hereby make the following orders: The decision of the lower Court made on 25/1/2007 in Suit No: FHC/L/CS/342/2004 is hereby set aside. It is further ordered that the matter be and is hereby remitted back to the Honourable Chief Judge of the lower Court for the matter to be heard and determined before another Judge of the said Court. It is also ordered that the parties are to bear their costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to peruse, in advance, the dexterous leading judgment delivered by learned brother: ONYEKACHI AJA OTISI, J.C.A., I am in full agreement with the reasoning and conclusion in it.

It admits of no argument that the bounden duty of every Court is to accord feuding parties a congenial milieu to ventilate their grievances in the temple of justice. The lower Court’s failure to consider the appellant’s counter-affidavit and application is a classic exemplification of erosion of its inviolable/inalienable right to fair hearing as ingrained in

Section 36 (1) of the Constitution, as amended: the fons et origo of our laws. Indubitably, the appellant is entitled, ex debito justitiae, to reap from the beneficent sanctuary of fair hearing which, de jure, constitutes a serious a coup de grace to the correctness of the lower Court’s decision.

In the light of the above, added to the fuller reasons ably assembled in the elegant leading judgment, l, too, allow the appeal in the manner decreed therein.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my Lord ONYEKACHI AJA OTISI, J.C.A. and I agree with my lord’s reasoning and conclusions. I therefore also set aside the decision of the lower Court and abide by the orders made in the lead judgment.

Appearances:

Olanrewaju Osinaike, Esq. For Appellant(s)

Victor Ogunde, Esq. – for 1st Respondent.
Olubanke Odulana, Esq. – for 3rd and 4th Respondents. For Respondent(s)

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