OPI INTL LTD v. A. G. BUTLER (NIG) LTD (2020)

OPI INTL LTD v. A. G. BUTLER (NIG) LTD

(2020)LCN/15400(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, October 16, 2020

CA/L/1180/2016

RATIO

DISCRETION OF COURT: CONSIDERATION OF THE COURT IN AWARDING COSTS

A successful party who does not misconduct himself is automatically entitled to costs and the failure to award costs in such case should be accompanied with reasons given by the Court entitled to award costs vide Adenaiya v. Governor-ln-Council (1962) 1 All NLR 308, Mbanugo v. Nzefili (1998) 2 NWLR (pt.537) 343 at 353, CCB Nig. Plc v. Okpala (1997) 8 NWLR (pt.518) 673.
The award of cost would be in the discretion of the Court below under Order 25 rule 7 of the rules of the Court below. In this case the Court below in awarding costs stated in part of its judgment contained in page 155 of the record that the cost of N2 million was granted for filing and prosecuting the action for the respondent as the plaintiff at the Court below against the appellant as defendant at the Court below.
The Court below thus assigned reason(s) for the award of cost which reasons are verifiable in the record. The exercise of the discretion by the Court below to award the cost of N2 million was therefore based on materials contained in its own record and cannot be said to be arbitrary and/or not a product of judicious and judicial exercise of its discretion in the matter. The appeal on cost is bound to fail accordingly. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JURISDICTION OF COURT: CONSIDERATIONS TO DETERMINE THE JURISDICTION OF COURT

The rule of jurisdiction of a Court has it that nothing is intended to be beyond the jurisdiction of a superior Court, such as the Court below, unless specifically stated otherwise by the Constitution and/or statute creating/vesting the superior Court with jurisdiction vide the old English cases of The Mayoretc of London v. cox (1867) 2 L.R.H.L. 239 at 259, Peacock v. Bell and Kendall (1667) 1 WMS. Saund 101 followed by the Supreme Court in the cases of Anakwenze v. Aneke (1985) 1 NWLR (pt.4) 771 at 779, Musaconi Ltd. v. Aspinall (2013) 14 NWLR (pt.1375) 435 at 464.

Jurisdiction of a Court is normally/usually determined by looking at the writ and/or statement of claim where pleadings are filed and exchanged, or on affidavit evidence where the action is fought by affidavit evidence, or on the evidence in the case where the action is litigated on pleadings vide Adeyemi and ors. v. Opeyori (1976) NSCC 455 at 463 and 464, NBN v. Shoyoye (1977) 5 SC 181, Musaconi Limited v. Mr. H. Aspinall (2013) 14 NWLR (pt. 1375) 435 at 459 — 460, Abia State Transport Corporation and Ors. v. Quorum (2009) 4 SCNJ 1 at 12, and the cases (supra) cited by the parties. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

OPI INTERNATIONAL LIMITED APPELANT(S)

And

A. G. BUTLER NIGERIA LIMITED RESPONDENT(S)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the Federal High Court sitting in Lagos (the Court below) whereby it entered judgment on the undefended list for the respondent against the appellant in the liquidated sum of N139,413,763.00 for money owed the respondent by the appellant from hire of vessel to transport fuel and for cost of goods, products, charges and services rendered therefore as well as N2 million cost for the filing and prosecution of the action.

The facts in outline were that the appellant owed the respondent the sum of N21,165,000.00 from hire of the respondent’s vessel for the purpose of transporting fuel from Brawal Jetty in Port Harcourt to DB Dolphin in Forcados and for services rendered which the appellant had agreed in writing to pay but renegned on its promise; upon which the respondent filed an action on the undefended list at the Court below for recovery of the alleged sum of money.

The appellant filed a notice of intention to defend the action and an affidavit to showcase a defence on the merit out of time without regularising the two processes upon which the Court below entered judgment for the respondent on the undefended list in the sum of N139,413,763.00 against the appellant.

Not satisfied with the judgment, the appellant filed an original notice of appeal with two (2) grounds of appeal vide pages 156 — 159 of the record. The notice of appeal was regularised and an amended notice of appeal with four (4) grounds was filed in its place on 30.10.18 and deemed as properly filed on 15.10.19.

The appellant filed its brief of argument on 30.10.18, which was deemed as properly filed on 15.10.19. It was argued in the brief that the affidavit evidence in support of the undefended action being pleadings, the affidavit read with the writ of summons disclosed an action for a breach of contract which should not have been entertained by the Court below for lack of jurisdiction vide Section 251 (1) and 272 (1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), as altered, read with the cases of Kwara State Independent Electoral Commission and 3 Ors. v. Peoples Democratic Party (2005) 6 NWLR (pt.920) 25 at 51 – 52, Adetayo v. Ademola (2010) 15 NWLR (pt.1215) 169 at 202 – 203, Babington-Ashaye v. E.M.A.G. Ent. (Nig.) Ltd. (2011) 15 NWLR (pt.1256) 479 at 520, P & C.H.C. co. Ltd. v. Migfo (Nig.) Ltd. (2012) 18 NWLR (pt.1333) 555 at 591, Integrated Timber and Plywood Products Limited v. Union Bank Nigeria Plc (2006) 12 NWLR (pt.995) 483 at 504, Adeyemi v. Opeyori (1976) 9 — 10 SC 31, Kotoye v. Saraki (1994) 7 NWLR (pt.357) 414 at 466, FGN v. Oshiomhole and Anor. (2004) 3 NWLR (pt.860) 305.

It was argued in the brief that the procedure adopted by the Court below by its refusal to grant a short adjournment for the appellant to regularise its defence when the appellant had informed the Court below that it had filed its processes late because the parties were trying to settle the matter amicably or out-of-Court breached the appellant’s right to fair hearing.

Consequently, the appellant argued that since out-of-Court settlement is a laudable step universally encouraged by Courts and having regard to the fact that, that was the first request for an adjournment by the appellant, the Court below did not exercise its discretion judicially and judiciously when it refused to grant the adjournment sought and rushed justice by entering judgment against the appellant contrary to established procedure that justice should not be rushed vide Section 36(1) of the 1999 Constitution and the cases of Okon v. Adigwe (2011) 15 NWLR (pt.1270) 350 at 369 370, Victino Fixed Odds Ltd. v. Ojo (2010) 8 NWLR (pt.1197) 486 at 499 – 501, Olori Motors & co. Ltd. v. U.B.N. Ltd. (1998) 6 NVVLR (pt.554) 493.

It was argued by the appellant in the brief that the award of N2 million which the appellant called general damages was unreasonable and/or too high as it did not naturally flow from the contract or agreement contemplated by the parties vide Nigeria Produce Marketing Board v. Adewunmi (1972) 1 All NLR (pt.2) 433 at 438, Agu v. General Oil Ltd. (2015) 17 NWLR (pt.1488) 327 at 341.

It was also argued by the appellant that the Court below did not exercise its discretion judiciously and judicially in awarding the costs of N2 million without facts and evidence to support the said award which was unreasonably high and made under mistake of law, misapprehension of facts and in disregard of known principles of law vide Adekunle v. Rockview Hotel Ltd. (2004) 1 NWLR (pt.853) 161 at 174; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside.

The respondent’s brief was filed on 13.11.19 where it was pointed out that the appellant conceded the fact that relief number 1 was within the jurisdiction of the Court below but had objection to relief number 2 that it was not within the jurisdiction of the Court below. The respondent added in argument that as relief number 1 comes under the admiralty jurisdiction of the Court below vide Section 1 of the Admiralty Jurisdiction Act Cap A5 Laws of the Federation of Nigeria updated to 2010, the Court below properly assumed jurisdiction in the case.

The respondent then contended that relief number 2 is ancillary to relief number 1 and is, therefore, the offshoot of relief number 1 which had foundation in a contract or agreement connected with carriage of goods by sea as provided in Section 1 of the Admiralty Jurisdiction Act and that when considered with paragraphs 3, 4 and 5 of the affidavit in support of the writ of summons contained in pages 46 — 47 of the record which should be read together with the reliefs sought as well as the other paragraphs of the affidavit with the phrase ‘also’ which is found in paragraph 5 of the affidavit bearing the meaning of ‘in addition’ vide Cambridge Advanced Learner’s Dictionary (4th Edition) page 43 thus linking relief number 2 with relief number 1, which are inseparable and should not be separated as to do so would create serious injustice to the respondent as both purchase orders contained in pages 53 and 59 of the record are linked to the two reliefs, which made it clear that the Court below had jurisdiction in the case.

The respondent contended that as relief number 2 is dependent on or ancillary to the principal relief number 1, the Court below had jurisdiction over relief number 1, and, also, properly assumed jurisdiction to hear and determine the case vide Nabore Properties Ltd. v. Peace-Cover Nig. Ltd. (2015) 2 NWLR (pt.1443) 286 at 312, Amale v. Sokoto Local Government (2012) 5 NWLR (pt.1292) 181, Tukur v. Governor of Taraba State (1997) 6 NWLR (pt.510) 549, Unilorin v. Oluwadare (2006) 14 NWLR (pt.1000) 751, S.C.C.(Nig.) Ltd. v. Sedi (2013) 1 NWLR (pt.1335) 230, N.B.C.I. v. Dauphin Nig. Ltd. (2014) 16 NWLR (pt.1432) 90, BCE Consulting Engineers v. NNPC (2019) 14 NWLR (pt.1691) 136, Agbule v. W.R. and P. Co. Ltd. (2013) 6 NWLR (pt.1350) 318 at 365 read with Section 251(1)(g) of the 1999 Constitution and Section 1(3) of the Admiralty Jurisdiction Act as well as Section 7(3) of the Federal High Court Act.

The respondent referred to pages 42A-42B, 134A-134B and 142-148 of the record to contend that the Court below did not deny the appellant the right to fair hearing as the processes filed by the appellant were out of time in breach of Order 12 rule 3 of the Federal High Court (Civil Procedure) Rules 2009 (rules of the Court below) without a pending application to regularise them; more so, counsel for the respondent maintained that he was not aware of the moves to settle the dispute amicably as to accede to a request for an adjournment on that ground and; that, in any event, negotiations, if any, would not stop time from running for the purpose of the litigation vide Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (pt.1445) 139.

Consequently, the respondent contended that as the appellant had acted in breach of the rules of the Court below, the refusal by the Court below to grant it the adjournment sought was done judiciously and judicially and amounted to proper exercise of the discretion of the Court below and did not lead to a denial of fair hearing vide Onah v. Okom (2012) 8 NWLR (pt.1301) 169, R.T.A.G.M.N. v. Tort (2016) 4 NWLR (pt.1501) 101 at 119, Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423, Nigerian Navy v. Labinjo (2012) 17 NWLR (pt.1328) 56, N.M.S. Ltd. v. J.P. Ent. Ltd. (supra), Mgbenwelu v. Olumba (2016) Vol. 11 — 12 MJSC 74, Eze v. FRN (2011) 15 NWLR (pt.1589) 433, First Alstate Securities Ltd. v. Adesoye H. Ltd. (2013) 16 NWLR (pt.1381) 470, Mabamije v. Otto (2016) 13 NWLR (pt.1529) 171, Assams v. Ararume (2016) NWLR (pt.1493) 368 read with Order 12 Rule 3(1) and Order 26 rule 2(1) of the rules of the Court below.

The respondent pointed out that costs and general damages are not the same, as costs are awarded under Order 25 rule 7 of the Rules of the Court below as a discretionary remedy which was exercised judiciously and judicially by the Court below in this case; and that an appeal Court can review costs awarded by the Court below only where the appellant who was the loser at the Court below succeeds on appeal vide Order 25 rule 7 of the Rules of the Court below and the cases of Ahmed v. SMB Ltd. (2015) 13 NWLR (pt.1476) 403, Rabiu v. Adebajo (2012) 15 NWLR (pt.1322) 125, F.R.N. v. Wabara (2013) 5 NWLR (pt.1347) 331 at 356, Okoye V. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (pt.199) 501; upon which the respondent urged that the appeal should be dismissed and the decision of the Court below affirmed.

The appellant’s reply brief was filed on 15.062020 and deemed as properly filed on 29/09/20 in which it was argued that the appellant did not concede that relief number 1 was within the admiralty jurisdiction of the Court below under Section 1 of the Admiralty Jurisdiction Act (AJA) as the said relief is a demand for money under a contract.

The appellant also argued that relief number 2 is independent of relief number 1 as the latter is for the sum of N21,165,000.00 for breach of contract to hire a vessel while relief number 2 is for the sum of NI 18,248,762 representing cost of goods, products, charges and service supplied to the appellant vide Nabore Properties Ltd. v. Peace-Cover Nig. Ltd. and Ors. (2014) LPELR — 22586 on the meaning of ancillary relief being subordinate or subsidiary to the primary relief.

The appellant added in argument that the fact that in a contract for supply of goods or services even if the goods are transported by sea, the moment the product is supplied it becomes a question of simple contract and not an admiralty matter vide Adelekan v. Ecu-Line NV (2006) 12 NWLR (pt.993) 33 at 52, Chevron (Nig.) Ltd. v. Lonestar Drilling (Nig.) Ltd. (2007) 7 SC (pt. 11) 27, P. & C.H.S. co. Ltd. v. Migfo (Nig.) Ltd. (2012) 18 NWLR (pt.1333) 555.

The appellant sought to distinguish the case of BCE Consulting Engineers v. NNPC (supra) from the present case by contending that in that case an agency of the Federal Government was involved, whereas the present case does not concern an agency of the Federal Government; also, that the case of Ezeani v. Nigeria Railway Corporation (supra) is distinguishable from the present case in that, that case related to limitation of action.

The appellant argued that its conduct was fair and was not a ploy to delay the proceedings as it was in a bid to settle the case out of Court therefore the case of Inakoju v. Adeleke (supra) should be distinguished on the facts from this case; also, that the appellant did not deliberately or carelessly disregard the rules of the Court below as was the case in
Nigerian Navy v. Labinjo (supra); and that the appellant in the case of Mgbenwelu v. Olumba (supra) did not file statement of defence, unlike the appellant in the present case where defence to the action was filed, though out of time; and that the fact that the action was on the undefended list should not have warranted the Court below to refuse the appellant an opportunity by way of adjournment to regularise the defence; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside.

The present case was brought on the undefended list. The reliefs claimed therein are stated in page 90 of the record thus —
“The Plaintiff’s claim is as follows:
(i) AN ORDER of Court directing the Defendant to immediately pay the Plaintiff the sum of N21,165,000.00 (twenty one million, one hundred and sixty five thousand naira) only, being the cost of hiring the Plaintiff’s vessel, MV RED FISH as contained in Purchase Order No. 17111 and invoice No. 001 of 23rd July 2014.
(ii) AN ORDER of Court directing the Defendant to immediately pay the Plaintiff the sum of N118,248, 762.50 (one hundred and eighteen million, two hundred and forty eight thousand seven hundred and sixty two naira fifty kobo) only, representing the cost of goods, products, charges and services supplied to the Defendant as ordered via Purchase Order No. 17112 and invoice No.002 of 1st August 2014.
(iii) A post judgment interest at the rate of 10% per annum on the judgment sum from the date of the judgment till same is finally liquidated.
(iv) The sum of N5,000,000.00 being the cost of this action”.
These reliefs are binding on the parties and the Court and would determine whether the Court below had the jurisdiction to have entertained the action videCommissioner for Works, Benue State and Anor v. Devcon Ltd. and Anor. (1988) 3 NWLR (pt.83) 157 at 167 which followed the case of A.C.B. Ltd. v. A.-G., Northern Nigerian (1969) NMLR 231.
Of course affidavit evidence in originating summons serves as pleadings vide Agbakoba v. INEC (2008) 18 NWLR (pt.1119) 489 at 549, Sea Ports and CargoHandling Service Company Ltd. v. Migfo Nigeria Ltd. and Anor. (2012) 18 NWLR (pt.1333) 555 at 609, NNPC and Ors. v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 189, Uwazuruonye v. Governor, Imo State and Ors. (2013) 8 NWLR (pt.1355) 28 at 56. But I think affidavit evidence under the undefended list is written evidence on oath just like oral evidence on oath or written statement on oath in an action and cannot be treated as pleadings. The admiralty jurisdiction of the Federal High Court includes jurisdiction to hear and determine any claim for loss of or damage to goods carried in a ship while in the course of a voyage and any claim arising out of any agreement relating to the carriage of goods in a ship or the use or hire of a ship while the ship is on voyage or berthed with the cargo, not after the cargo has been discharged or the contract of carriage executed. It does not cover any claim which arises from acts or omissions after the agreement relating to the carriage of goods in a ship or the use or hire of a ship has been executed or terminated as such transaction is founded on simple contract outside the jurisdiction of the Federal High Court and within the jurisdiction of the High Court of a State where the action arose or consummated vide Aluminium Manufacturing Company (Nigeria) Limited v. Nigerian Ports Authority (1987) 1 NWLR (pt.51) 475.
It was also held by the Supreme Court in the case of Texaco Overseas (Nig.) Petroleum Company Unlimited v. Pedmar Nigeria Limited (2002) 13 NWLR (pt.785) 526 that for a claim in admiralty to arise, the cargo or goods must still be in the vessel, therefore it follows that the admiralty jurisdiction of the Federal High Court cannot be invoked once the goods carried by a ship have been discharged in the harbour or delivered to the point of destination of the cargo; and that in the said case, though the chattered vessels carried goods for the appellants in the case, they delivered the goods intact and that the dispute that arose from the failure of the appellant to pay for the services rendered to it by the respondent was simply one of debt owed and not founded on admiralty and the High Court had jurisdiction to entertain it.
It was further held by the Supreme Court in the case of Chevron Nigeria Limited v. Lonestar Drilling Nigeria Limited (supra) cited by the appellant that the fact that the transaction between the parties giving rise to the plaintiff’s claim involves the conveyance of the rig purchased from India to Nigeria by sea, does not give that transaction the character of an admiralty action. See also Adelekan v. Ecu-Line NV (supra) cited by the appellant.
It was also held by the Supreme Court in the case of TSKJ Nigeria Limited v. Otochem Nigeria Ltd. (2018) 11 NWLR (pt.1630) 330 that the mere fact that a ship was used in the course of executing a simple contract would not automatically make that simple contract a subject for jurisdiction in admiralty matters; and that in that case which involved the recovery of accrued but unpaid hire rentals for the house-boat let by the respondent to the appellant and damages for breach of contract simpliciter, it was held that it was a case of simple contract which was within the civil jurisdiction of the High Court. See also Dec Oil & Gas Limited v. Shell Nigeria Gas Limited (2019) 14 NWLR (pt.1692) 273 where the Supreme Court explained that the nature and scope of activities to be undertaken in a contract document would not or does not change the complexion or texture of the contract. See in addition Conoil v. Vitol S. A. (2018) 9 NWLR (pt.1625) 463.

Having earlier decided on the issue of jurisdiction that the action should have been filed in the High Court, not at Federal High Court, the next port of call should have been to terminate the appeal at this stage of the discussion; but being an intermediate Court between the Court below and the Supreme Court, it is imperative to decide the other issues raised and argued in the appeal to save time, cost and resources in the event the matter is tested on appeal at the ultimate Court, the Supreme Court; and the decision of the Court on jurisdiction comes to grief at or is reversed by the Supreme Court vide Dec Oil & Gas Limited v. Shell Nigeria Gas Limited (supra) following Owners MV “Arabella” v. N.A.I.C. (2008) 11 NWLR (pt.1097) 182, Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (pt.656) 322, Owodunni v. Registered Trustees C.C.C. (2000) 10 NWLR (pt.675) 315, Etajata v. Ologbo (2007) 16 NWLR (pt.1061) 554. See also N.U.R.T.W. v. R.T.E.A.N. (2012) 10 NWLR (pt.1307) 170 at 198, Obiuweubi v. C.B.N. (2011) 7 NWLR (pt.1247) 465, Ikpekpe v. W.R.&P. co. Ltd. (2018) 17 NWLR (pt.1648) 280.

The appellant complained that it was wrongly denied an adjournment to regularise its defence to the action and therefore denied the right to fair hearing. The proceedings of the Court below relevant to the complaint are contained in pages 134A-133B and 142-143, 145-148 of the record (unedited) as follows:
“Plaintiff represented by Mr. Maurice Ozoemena (Company Secretary).
The Defendant absent.
T.S. Awhana with John Eboh Counsel for the Plaintiff.
Toye Latilo for the Defendant
Counsel: Case for hearing today.
T.S.. We have served the Defendant Writ of Summons on the 13th of April, 2016 and they are still within time to respond. We ask for a date.
Toye: I confirm that position we ask for a date.
Court: Case is adjourned for the 15th day of June, 2016 for hearing.
(Sgn.)
A. M. ANKA
Judge
20/4/2016
Maurice Ozoemena (Company Secretary/Legal Adviser) representing Applicant.
T. S. Awhana for the Plaintiff with J. Eboh.
Toye Latilo for the Defendant.
Counsel: Case is for hearing today.
T.S.. We are ready to go and we were just sewed this morning with the Counter Affidavit and Notice of Intention to defend contrarily to Order 12 Rule 3 to and Defendant file at least 5 days before the hearing. They filed 2 days ago in this case.
Toye: The patties were trying to settle and that is the reason we didn’t file within time. I plead for a short date to regularise my position.
T.S.. The law is that where the case is listed it is for hearing not for mention. The counsel cannot come to Court and tell the Court there is a move for settlement and company are not involved. The rules of couå must be obeyed.
Court: The case shall be heard today. The application for date is refused.
Sgn.
A. M. ANKA
Judge
15/6/2016″.
T.S.. …….
In view of this we state hat since there is no defence to the action the Court should enter judgment in favour of the Claimant.
(1) The suit bothers on recovery of liquidated money demand.
(2) They must be sewed together with Affidavit April, 2016
(3) The rules of this Court has been grossly violated by the failure to file anything within time see Order 12 Rules 3. The implication is that the Notice of Intention for Defence of 13th June as evidenced and correspondent …
Toye: We filed a Notice of Intention to defend dated 13th April, 2016 we also filed a Counter Affidavit in the same day though out of time. My application will be for a short adjournment averment to regularise the position in as much as my Learned Friend has regard to so many of my paragraphs. I therefore apply for a short adjournment to respond appropriately. I am grateful.
Court: The case is adjourned to the 27th day of September, 2016 for ruling. ”

The reason given for the request for an adjournment that the appellant was exploring ways to settle the dispute amicably quite apart from the fact that the respondent was reported not to have been aware and/or take along with it would not stop time from running in the litigation and should not have hindered the appellant from filing a motion to regularise the papers it had filed out of time along with the said papers vide Guffanti (Nig.) Plc v. Vaduz (2012) 3 NWLR (pt.1288) 458, Moukarim v. Agbaje (1982) 11 S.C. 122, Ikenta Best (Nig.) Ltd. v. A.-G., Rivers State (2008) 6 NWLR (pt.1084) 612.
The undefended list procedure is provided for in Order 12 of the Federal High Court (Civil Procedure) Rules 2009 (rules of the Court below). Order 12 rule 3(1) and (2) thereof requires a defendant served with a writ of summons on the undefended list to file a notice in writing that he intends to defend the action together with an affidavit disclosing a defence on the merit not less than five (5) days before the date fixed for hearing if he intends to defend the action. Pages 137-140 of the indicated that the defendant filed a notice of intention to defend the action and a counter affidavit in opposition to the action on 13.06.16.
These processes were admittedly filed outside the statutory time limit of 5 days required by Order 12 rule 3(1) of the rules of the Court below. Where time is statutorily made of the essence of an action as under the undefended list procedure, as in this case, time becomes an issue of jurisdiction and must be strictly complied with or adhered to and the Court cannot be accused of violating the right to fair hearing of a party in breach of its rules in such circumstances vide NIPOL Ltd. v. Bioku Investment Ltd. (1992) 3 NWLR (pt.232) 227, Egbo v. Agbara (1997) 1 NWLR (pt.481) 293, Akinsuwa v. State (2019) 13 NWLR (pt.1688) 161 at 202, Obaro v. Hassan (2013) 8 NWLR (pt.1357) 425 at 454, Tabansi v. Tabansi (2018) 18 NWLR (pt.1651) 279 at 303.
The viable option open to the appellant at the time it filed the notice of intention to defend the action with its counter affidavit out of time on 13/06/16 was to have filed an application for an extension of time to regularise the notice of intention to defend the action and the counter affidavit contemporaneously as time was of material importance and significance to the action which is on fast-track and/or designed for expeditious resolution of the dispute vide Ighedo v. P.H.C.N. Plc (2018) 9 NWLR (pt.1623) 51, In Re Abiola (2019) 12 NWLR (pt.1685) 27 at 41, Ali Alaba International Ltd. and Anor. v. Sterling Bank Plc (substituting Equitorial Trust Bank Ltd.) (2018) 14 NWLR (pt.1639) 254 at 265, MC Investments Ltd. and Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (pt. 1313) 1 at 17, to the effect that all processes necessary for the defence of the action should be filed together and taken in one package, not piecemeal or in bits, in proceedings under the undefended list where time is made a critical element of paramount consideration for speedy and/or express dispensation of justice.
The procedure is for disposing with disputed cases which are uncontested. The appellant who neglected to do so in this case rather than promote early disposal of the action scuttled it and cannot be heard to complain of denial of fair hearing when it did not utilize the opportunity to have all its cards on the table or all the materials required to perfect and/or make its case whole at the same time.

It is noteworthy that even after the Court below adjourned on 15.06.15 for ruling on 27.062016, an interval of twelve (12) days, the appellant did not put in an application to regularise the notice of intention to defend the action together with an affidavit disclosing a defence on the merit against that action. The Court below was therefore left with an incompetent notice of intention to defend the action and counter affidavit against the action which was in law no processes to act upon having both been filed out of time without regularisation.
In the absence of a valid notice of intention to defend the action with an affidavit disclosing a defence on the merit at the time the case came up on 27.06.16, the Court below had no choice in the matter but to proceed to judgment vide the Supreme Court case of Ben Thomas Hotels Ltd. v. Sebi Furniture co. Ltd. (1989) 5 NWLR (pt.123) 523 at 529 followed by the Supreme Court in the case of MC Investments Ltd. v. Core Investments and Capital Markets Ltd. (supra).

Be that as it may, having earlier held in the discourse that the Court below lacked the jurisdiction to entertain the action, and that only the High Court of a State has the requisite jurisdiction to determine the action, Section 15 of the Court of Appeal Act 2004, as amended, read with the fairly recent Supreme Court case of Dec Oil and Gas Limited v. Shell Nigeria Gas Limited (supra) would be invoked to do what the Court below should have done under Section 22(2) of the Federal High Court Act 2004 which stipulates that no cause or matter should be struck out merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory Abuja, in which it ought to have been brought and that such cause or matter should be transferred to the appropriate Court in which case the appropriate Court in respect of the case in hand is the High Court of Lagos State to which the action would be transferred for assignment to any learned Judge of the Court below by the Chief Judge of Lagos State for expeditious determination. Parties to bear their costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the reasoning and conclusion in the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which I was privileged to read in draft.

For the reasons therein articulated, I equally join in allowing the appeal on the same terms as set out in the leading judgment. I abide by the consequential order as to costs.

EBIOWEI TOBI, J.C.A.: I have read the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, and I agree in totality with the decision contained therein. With respect to the Appellant counsel’s argument that the Appellant failed to file its processes within time because parties were exploring settlement, I make bold to say that it does not hold water and same does not merit consideration by this Honourable Court vide Eboigbe vs. NNPC (1994) LPELR-992 (SC); A.G Adamawa State & Ors vs. A.G Federation (2014) LPELR-23221 (SC). Counsel who knew that time is of the essence with respect to filing of pleadings ought to have taken pro-active steps in filing his processes despite the fact that settlement is being explored; should in case settlement breaks down. It therefore does not lie in the mouth of counsel to hide under the cloak of settlement for his obvious failure to comply with the Rules.
It is also glaring from the arguments contained in the Appellant’s brief that the Appellant counsel tried to fault the lower Court on the premise that the lower Court denied the Appellant fair hearing when it failed to grant the adjournment sought in order to regularize its processes. I do not seem to appreciate the argument of counsel on this point as the law vide Chidoka & Anor vs. First City Finance Co. Ltd (2012) LPELR-9343 (SC); Ayoola vs. Egbeyalo (2018) LPELR-44804 (CA) is settled to the effect that where a party has been granted the opportunity to carry out an act and fails to utilize that opportunity, he cannot complain of lack of fair hearing. He that comes to equity must come with clean hands. See Ifekandu & Anor vs. Uzoegwu (2008) LPELR-1435 (SC).
As my learned brother has observed, even after the Court adjourned for ruling, the Appellant still failed, neglected and or refused to file its application to regularize the notice of intention to defend the action together with an affidavit disclosing a defence on the merit against the action. Again, equity aids the vigilant and not the indolent vide A.G Rivers State vs. Ude & Ors (2006) LPELR-626 (SC);

For this reason and the fuller reasons contained in the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, I have no option than to agree with my learned brother. I abide by the order contained in the fuller judgment.

Appearances:

Mr. A. A. Latilo For Appellant(s)

Mr. T. S. Awhana For Respondent(s)