May 16, 2025
Legalpedia Citation: (2012-07) Legalpedia 02403 (CA) In the Court of Appeal HOLDEN AT LAGOS, NIGERIA Sat Jul 21, 2012 Suit Number: CA/L/1129/2010 CORAM OBANDE FESTUS OGBUINYA JCA […]
CORAM
OBANDE FESTUS OGBUINYA JCA
FREDRICK OZIAKPONO OHO JCA
MUHAMMAD IBRAHIM SIRAJO JCA
PARTIES
COMET SHIPPING AGENCIES NIG. LTD.
APPELLANTS
MR. ALEXANDER ENEMAKU
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
Before the lower court (Federal High Court, Lagos Division) the appellant was the third defendant, whilst the respondent was the plaintiff. The respondent, a public servant, served in the High Commission of Federal Republic of Nigeria in Australia between November, 1998 and April, 2003, when he was redeployed to Nigeria. The first defendant is the owner/charterer of the second defendant. The fourth defendant and the Australian Freight Forwarders International Pty Limited were the agents of the respondent. The respondent alleged that his agents contacted the first and second defendants for the shipment of the respondent’s consignment, non-hazardous personal effects, to Nigeria using the second defendant. The first and second defendants accepted, as carriers, to deliver the respondent’s goods to Lagos, Nigeria under the relevant bill of lading. The respondent was the consignee in the bill of lading issued by the fourth defendant on 1 st March, 2004. The respondent claimed that the appellant and the other defendants failed to deliver the goods to Nigeria as agreed despite their several promises to do so and the repeated demands by his solicitors to them. The respondent asserted that the non-delivery of his consignment of personal effects was due to the negligence of the appellants and the other defendants which negligent act caused him mental shock, stress and considerable loss and damage. Sequel to that, the respondent beseeched the lower court for redress. In a considered judgment, the lower court granted the respondent’s claim against the appellant and the other defendants jointly and severally. The appellant was aggrieved by the decision hence the instant appeal.
HELD
Appeal allowed in part
ISSUES
1. Whether or not the learned trial judge had jurisdiction to adjudicate over the Plaintiff/Respondent’s claim when same has been patently vitiated by reason of the Plaintiff/Respondent’s failure, neglect and/or refusal to seek and/or obtain leave of court prior to issuing its Writ of Summon for service on the foreign Defendants, or mark the Writ “concurrent” or for failing to limit the period within which the Appellant may enter appearance to the mandatory minimum of thirty (30) days?
2. Was the Learned trial judge right to have held the Appellant bound by the contents of the Bill of Lading (Exhibit C1) and/or that they breached same when the said Bill of Lading was not issued or authorised by them and is not an owner’s bill?
3. Whether from the available evidence the trial court was right in its conclusion that the Appellant accepted to carry the Plaintiff/Respondent’s cargo on board their vessel?
4. Was the Learned trial judge right to have awarded special damages in the sum of US$120’000 and Australian Dollars 3’770 particularly as against the Appellant for an alleged breach of the terms of the Bill of Lading (Exhibit C1) to which the Appellant was not party and when the Plaintiff/Respondent failed to establish the credible evidence the said claim for damages? Was the Appellant who was an agent of a disclosed principal (the 1st Defendant) is liable together with its principal to the Respondent in the circumstances of this case?
5. Was the Learned trial judge right to have relied on an unsigned document (Exhibit “D”) which was also shown to have been prepared when proceedings were anticipated, and therefore clearly inadmissible and/or unreliable? Whether from the totality of the available evidence, the learned trial judge was right to have entered judgment as claimed against the Appellants?
RATIONES DECIDENDI
PRELIMINARY OBJECTION – CONDUCT OF COURTS TOWARD PRELIMINARY OBJECTIONS
A preliminary objection is a specie of objection which, if sustained by a court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356; Ebebi v. Ozobo (2022) 1 NWLR (Pt. 1810) 165. For this reason, the law commands the court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; SPDCN Ltd v4’madi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eedv. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Solumade v. Kuti (2022) 1 NWLR (Pt. 1810) 31. – Per O. F. Ogbuinya, JCA
INCOMPETENT ACTION/APPLICATION – WHEN AN ACTION/APPLICATION IS DECLARED TO BE INCOMPETENT
It is an elementary law, known for its antiquity, that an action/application which is declared incompetent, and not considered on its merit, is not liable to an order of dismissal. It is rather liable to an order of striking out. An action struck out is, in the sight of the law, a sleeping cause that is on vacation and waiting for the affected party to exercise his right of liberty of its restoration on the cause list, see Kassim v. Ebert (1966) NMLR 23; P.W.T. (Nig.) Ltd. v. J.B.O. Int’l (2010) 19 NWLR (Pt. 1226) 1; Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172; TSA Ind. Ltd. v. FBN Plc (No. 1) (2012) 14 NWLR (Pt. 1320) 326; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113; Y.S. G. Motors Ltd. v. Okonkwo (2010) 15 NWLR (Pt. 1217) 524; In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252; Nwaoha v. C.O.P. (2018)/ 10 NWLR (Pt. 1628) 568; Chukwu v. State (2019) 12 NWLR (Pt. 1687) 508; Access Bank Plc. v. Onwuliri (2021) 6 NWLR (Pt. 1773) 391; Optimum C. & P Dev. Ltd. v. Ake Shareholding Ltd. (2021) 18 NWLR (Pt. 1807) 148. – Per O. F. Ogbuinya, JCA
DISMISSAL – EFFECT OF DISMISSAL/ WHEN A MATTER IS DISMISSED
Nota bene, an order of dismissal will be reached by a court after a judicious assessment of the facts and law before it. In legal parlance, dismissal of an action has been described as the most punitive relief grantable to a defendant against a plaintiff; hence the courts are reluctant in granting it, see Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. A matter that is dismissed becomes a qualified candidate for an appeal because the court becomes functus officio vis-à-vis its adjudication. An appeal that is withdrawn under order 11 of the Court of Appeal Rules, 2021, with or without an order of court or consent of an adversary, is deemed to have been dismissed, see Y.S.G. Motors Ltd. v. Okonkwo (2010) 15 NWLR (Pt. 1217) 524; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.
A notice of discontinuance connotes a voluntary termination of a suit or appeal by a claimant or appellant, see Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171. However, it is apropos to observe, pronto, that a decision which dismisses an appeal that is withdrawn is not a judgment on the merit, see Okenwa v. Military Gov. of Imo State (2001) 1 SCM 120. In Uwemedimo v. Mobil Producing (Nig.) Unltd. (2019) 12 NWLR (Pt. 1685) 1, Rhodes-Vivour, JSC, incisively, declared:
When an appeal is heard on the merits and thereafter an order of dismissal is made, such an order is final and operates as estoppel per rem judicatam. The party that lost or all party’s are barred from re-litigating the same subject-matter. The court is functus officio. The order of dismissal is final for ever. See Alhaji M.M. Dingyadi & anor v. INEC & 2 ors (2011) 4 SC, (Pt.1) p.1, (2011) 10 NWLR (Pt. 1255) 347; ACB v. Losada Nig. Ltd. & anor (1995) 7 SCNJ p. 185, (1995) 7 NWLR (Pt. 405) 26.
Thus, in the eyes of the law, a judicial decision wears the insignia of finality when it leaves nothing to be judicially determined or ascertained thereafter in order to render it effective, capable of execution, absolute, complete, certain and not lawfully subject to subsequent decision, review or modification by a court which pronounced on it, see Fadiosa v. Gbadebo (1978) 3 SC 219; Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40; Okugo v. Nwokedi (1997) 8 NWLR (Pt. 517) 467; Onyebuchi v. INEC (2002) 8 NWLR (Pt. 769) 417; The Hondo Place Ltd. v. Globe Motors Ltd. (2005) 14 NWLR (Pt. 945) 273. Indubitably, a dismissed appeal, on the premises of being withdrawn, does not exhibit these hallmarks of a final decision so as to crown it with a deserved toga of finality. In effect, the decision in that appeal, viewed from the lens of the law, is, totally, divorced from finality and, ipso facto, disabled from constituting res judicata against the institution of this appeal by the appellant. – Per O. F. Ogbuinya, JCA
JURISDICTION – MEANING OF AND CONDUCT OF COURTS TO ISSUES OF JURISDICTION – THE CONDITIONS THAT VEST A COURT WITH JURISDICTION
Issue of jurisdiction is numero uno in adjudication. The law compels the courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will respect this legal injunction so as not to irritate the law. Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. A court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. – Per O. F. Ogbuinya, JCA
SERVICE – SERVICE OF WRIT OF SUMMONS UNDER THE SHERIFFS AND CIVIL PROCESS ACT
The Supreme Court usually employ the literal rule/canon of interpretation of statutes, id est, giving the wordings of the provisions their ordinary meaning without garnishing them with any lexical embroidery in order not to make them susceptible to convolution. They have been construed, in deserving circumstances, that non-compliance with any of the trinity provisions will render the writ of summons null and void and, by extension, the action incompetent, see Skenconsult (Nig.) Ltd. v. Ukey (supra); Owners of the MV “Arabella” v. NAIC (supra); Odu’a Investment Co. Ltd. v. Talabi (supra); Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1594) 181; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 110; PDP v. INEC (2018) 12 NWLR (Pt. 1634) 533; B.L.L.S. Co. Ltd. v. M.V. Western Star (2019) 9 NWLR (Pt. 1678) 489;
Biem v. SDP (2019) 12 NWLR (Pt. 1687) 377; Omajali v. David (2019) 17 NWLR (Pt. 1702) 438; Fayemi v. Oni (2020) 8 NWLR (Pt. 1726) 222; PDP v. Uche (2023) 9 NWLR (Pt. 1890) 523. In PDP v. INEC (2018) 12 NWLR (Pt. 1634) 533, at page 549, Rhodes-Vivour, incisively declared:
There can be no doubt whatsoever that by virtue of section 97 of the Sheriffs of Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with section 97 of the Sheriffs and Civil Process Act. See Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) p. 1; Nwabueze & Anor v. Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) p. 664; Skenconsult (Nig.) Ltd. v. Ukey (1981) 12 NSCC p.1.
For originating process emanating from the lower court, outside the State or jurisdiction means outside the shores of the Federal Republic of Nigeria because the lower court has a nationwide jurisdiction, see order 6 rule 31 of the FHC Rules; section 19(1) of the Federal High Court Act, Cap. F12, LFN, 2004; Agip (Nig.) Ltd. v. Agip Petroleum Int’ (supra); Biem v. SDP (2019) 12 NWLR (Pt. 1687) 377; Omajali v. Daniel (2019) 17 NWLR (Pt. 1702) 438. The putative reason for the requirement of a minimum of 30 days, in a section 99 of the SCPA, is to afford defendant sufficient time to arrange himself to appear in the court of origin of the suit, see Fayemi v. Oni (2020) 8 NWLR (Pt. 1726) 222. – Per O. F. Ogbuinya, JCA
COURTS, DOCUMENTS, PRACTICE AND PROCEDURE ORIGINATING PROCESS – THE FATE OF A DEFECTIVE/INCOMPETENT ORIGINATING PROCESS It is a rudimentary law that a defective/incompetent originating process or process cannot be revived/cured by an amendment, see Nwaigwe v. Okere (2008) 13 NWLR (Pt 1105) 445; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; SPDC (Nig.) Ltd. v. Agbara (2019) 16 NWLR (Pt. 1668) 310; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710)1. In Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. In the presence of the respondent’s original writ of summons, filed on 24 th February, 2005, being smeared with incompetent, there was no existential writ of summons that was obedient to amendment by substitution, alteration or correction on the footing of the respondent’s application, filed on 26 th January, 2006, which parented the amended writ of summons.
Amendment of a court process does not envisage or embrace an amendment of an incompetent process; a fortiori an originating process such as a writ of summons. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. There was no valid writ of summons to oxygenate the amended writ of summons. The incompetence of the original writ of summons contaminates and corrodes the amended writ of summons which is denuded of any legal parentage to perch and command any validity/viability. – Per O. F. Ogbuinya, JCA
ORIGINATING PROCESS – THE FATE OF A DEFECTIVE/INCOMPETENT ORIGINATING PROCESS
It is a rudimentary law that a defective/incompetent originating process or process cannot be revived/cured by an amendment, see Nwaigwe v. Okere (2008) 13 NWLR (Pt 1105) 445; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; SPDC (Nig.) Ltd. v. Agbara (2019) 16 NWLR (Pt. 1668) 310; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710)1. In Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. In the presence of the respondent’s original writ of summons, filed on 24 th February, 2005, being smeared with incompetent, there was no existential writ of summons that was obedient to amendment by substitution, alteration or correction on the footing of the respondent’s application, filed on 26 th January, 2006, which parented the amended writ of summons. Amendment of a court process does not envisage or embrace an amendment of an incompetent process; a fortiori an originating process such as a writ of summons. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. There was no valid writ of summons to oxygenate the amended writ of summons. The incompetence of the original writ of summons contaminates and corrodes the amended writ of summons which is denuded of any legal parentage to perch and command any validity/viability. – Per O. F. Ogbuinya, JCA
TECHNICALITY – CONDUCT OF COURTS IN RELATION TO TECHNICALITIES
Nowadays, the courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right; a fair trial on the merits,” see Bryan A. Garner(ed) Black’s Law Dictionary (8 th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A. –G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbsola (supra) Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted legal battle on which to win and arrest the attention of the Nigerian courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried its carcass deeply under the temple of substantial justice.
In the first place, it will be recalled that the case-law decrees the observance of the prescriptions of the provisions of sections 97, 98 and 99 of the SCPA as fundamental and mandatory and any writ of summons that disrespects them will be enveloped in a nullity. Besides, the settled position of the law, in the days of the yore, is that where a statute prescribes a method, procedure or condition for performing any act or thing, that mode or pre- condition must be satisfied and followed stricto sensu. A court must interpret such a provision. Strictissimi juris, in the strictest manner. In this wise, once there is a tinge of breach of the method or procedure, the act or thing is mired in the quicksand of nullity, see Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; N.S.I.T.F.M.B. v. Klifco Nig. Ltd (2010) 12 NWLR (Pt. 1211) 307; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374; SPDC (Nig.) v. Agbara (2019) 6 NWLR (Pt. 1668) 310; Mekwunye v. WAEC (2020) 6 NWLR (Pt. 1719) 1. – Per O. F. Ogbuinya, JCA
WAIVER – WHETHER PARTIES CAN WAIVE THE ISSUE OF JURISDICTION
Waiver connotes an intentional and voluntary surrender, abandonment, relinquishment of a known privilege or right which a party, who is aware of it, ought to insist on its performance, see Ariori v. Elemo (1983) 1 SC 13; NBC Plc v. Ubani (2004) 4 NWLR (Pt. 1398) 421. As already dissected at the dawn of this resolution, illustrated in ex cathedra authorities, which wears the badge of finality in our corpus juris, the issue of obedience to those compulsive prescriptions of the provisions of section 97, 98 and 99 of the SCPA, which is casus belli inter partes, is a classic exemplification of a jurisdictional question that borders on the jurisdiction of the court. It is axiomatic that parties cannot by consent, acquiescence, connivance, collusion, compromise, indolence, waiver or any guise bestow jurisdiction on a court where none exists nor oust it of jurisdiction in the presence of one, see Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Okolo v. UBN (2004) 3 NWLR (Pt. 859) 87; Ukpong v. Comm. for Finance (2006) 9 NWLR (Pt. 1013) 187; Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Customary Court of Appeal, Edo State v. Aguele (2008) 3 NWLR (Pt. 1607) 369; FRN v. Solomon (2018) 7 NWLR (Pt. 1618) 201. Moreover, the compliance with those provisions are matters of substantive law which is disobedient to the doctrine waiver – Per O. F. Ogbuinya, JCA
WRIT OF SUMMONS – THE POSITION OF WRIT OF SUMMONS IN TRIAL ADJUDICATION
There is no gainsaying the fact that a writ of summons, usually domiciled at the cradle of most records of appeal, is an originating process that initiates an action in courts of first instance. It is a version of notice of appeal in appellate adjudication. It is the nucleus, substratum, bedrock, foundation and spinal cord of every suit. It is sine qua non for the existence of an action in that it gives birth to the later. Thus, it occupies a kingly position in the trial adjudication. Given this kingly status, where a writ of summon is defective, for whatever reason, it contaminates the competence of an action, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the court to entertain the suit, see B. L. L. S. Co. Ltd. v. M.V. “Western Star” (2019) 9 NWLR (Pt. 1678) 489. – Per O. F. Ogbuinya, JCA
CONDITION PRECEDENT – MEANING OF CONDITION PRECEDENT
In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atalegbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. –G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. – Per O. F. Ogbuinya, JCA
JURISDICTION – WHEN A COURT LACKS JURISDICTION
Where a court is denied of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable nest of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319;Lokpobiri v. Ogola(2016) 3 NWLR (Pt. 1499) 328;Garba v. Mohammed (supra);Isah v. INEC (supra). – Per O. F. Ogbuinya, JCA
JURISDICTION – CONDUCT OF COURT OF APPEAL WHEN WITHOUT JURISDICTION
Having found that the lower court was not clothed with the jurisdiction to hear the respondent’s suit, occasioned by an incompetent writ of summons, the law makes it idle to consider the other issue canvassed by the contending parties in the appeal. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate court, like the lower court, [Court of Appeal] has a duty to pronounce on all the issues before it….
However, there are some exceptions to the above broad rule that applies to the lower court, as an intermediate court. Thus, for example, where the said court, as an intermediate court, decides that it lacks jurisdiction in an appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction…It means, therefore, that where, as was the case at the lower court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the appeal….
See, also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Ukiri v. FRN (2018) 12 NWLR (Pt. 1632) 1; Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 532; Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564; Regd. Trustees, Musion House Int’l v. All States Trust Bank Plc. (2021) 17 NWLR (Pt. 1805) 275.
Where the jurisdiction of a court to hear a matter is divested by law, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu(2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.- G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju(2008) NWLR (Pt.1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527. – Per O. F. Ogbuinya, JCA
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Rules, 2007
2. Court of Appeal Rules, 2011
3. Court of Appeal Rules, 2016
4. Court of Appeal Rules, 2021
5. Sheriffs and Civil Process Act (SCPA)
6. Federal High Court (Civil Procedure) Rules, 2000