Admiralty

Before Their Lordships

Between

AND

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Before Their Lordships

Between

AND

Before Their Lordships

Between

AND

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OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Lagos Division, delivered on 11th August, 2014 in Appeal No. CA/L/849B/2013 wherein the appeal was, inter alia, struck-out.

Judgment

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment) : By a Notice of Appeal founded on four grounds of appeal dated and filed on 8th August, 2017, the Appellants challenged the judgment of the Federal High Court, Lagos Division (the lower Court) in Suit No. FHC/L/CS/1612/2013, delivered by I.N. Buba, J., on the 7th day of July 2017. On 14/03/2018, the Appellant filed an Amended Notice of appeal containing five (5) grounds of appeal and was deemed properly filed on 06/07/2021. Before the lower Court, the Appellant and the Respondent were the Defendants and Plaintiff respectively.

As Plaintiff before the lower Court, the Respondent claimed the following reliefs against the Defendants/Appellants at paragraph 27 of his Statement of claim: a. AN ORDER directing the 1st, 2nd and 3rd defendants to pay the sum of N100,000,000 (One Hundred Million) jointly and/or severally to the plaintiff being damages suffered as a result of the negligence of the 1st, 2nd and 3rd defendants. b. AN ORDER directing the 1st, 2nd and 3rd defendants to bear the cost of carrying out of adequate surgery on the plaintiff at a reputable hospital. c.

AN ORDER compelling the defendants jointly and/or severally to apologize to the plaintiff through a letter of apology that must be published in three National dailies. d. Cost of this action. The Appellants/Defendants denied the claim and the matter proceeded to trial. While the Respondent called two witnesses, the Appellants called a sole witness. At the end of trial, the lower Court entered Judgment for the Respondent in the following terms: “(i).

An Order directing the 1st, 2nd and 3rd Defendants to pay the sum of N100,000,000 (One Hundred Million Naira) jointly and/or severally to the Plaintiff being damages suffered as a result of the negligence of the 1st, 2nd and 3rd Defendants. (ii). An Order directing the 1st, 2nd and 3rd defendants to bear the cost of carrying out of adequate surgery on the plaintiff at a reputable hospital. (iii).

An Order compelling the defendants jointly and/or severally to apologize to the plaintiff through a letter of apology that must be published in three National dailies.” It is this judgment that the Appellant appealed against.

The background facts that led to the initiation of the action at the lower Court can be summarized thus: As a commercial transporter with a Volkswagen space bus, the Respondent was, on 4th July, 2011, hired by the 2nd and 3rd Appellants through their agents/crew members of the 1st Appellant to convey C-Way bottle water from Ajori market to Waziri Jetty, Apapa, Lagos, where the 1st Appellant anchored. He conveyed the crew members and their goods to the Jetty.

As he was moving the bottle water close to the 1st Appellant on the request of the crew members for his assistance, an explosion occurred caused by the breakage of 1st Appellant’s hose, which hit and severely injured him. Instead of rendering help to him the crew members on board the 1st Appellant only threw down a stretcher to help move him away from the scene of the accident. The 1st Appellant hurriedly sailed out of the Jetty to avoid arrest, leaving the Respondent in pain and in the pool of his blood.

The General Hospital, Apapa, where he was rushed to, referred him to Lagos Island General Hospital as the severity of the injury was beyond what they could handle. The Hospital recommended the amputation of his right leg but he opted to go to a traditional Orthopaedic home when he could not afford the cost of surgery at the Hospital. During the nine months period of treatment, the Appellants neither rendered any assistance to the Respondent nor send a goodwill message to him.

His attempt to see the 3rd Appellant with the Doctor’s report was blocked, just as his letter to the Appellants was not responded to, hence his resort to Court action. After the filing of the Notice of Appeal and the transmission of Record, learned counsel for the parties filed and exchanged written Briefs of Argument in compliance with the rules of this Court, as follows: 1.

The Appellants’ Brief of Argument settled by Sylva Ogwemoh, SAN, with Wahab Dako, Adeniyi Joshua and Chibueze Muobuikwu but signed by Wahab Dako, was filed on 14/03/2018 but deemed to have been properly filed and served on 06/07/2021. 2. The Respondent’s Brief of Argument settled by Augustine Idume Chukwu was filed on 02/07/2021 but deemed properly filed and served by an order of Court made on 12/05/2022. 3. The Appellants’ Reply Brief, signed by Wahab Dako, was filed on 19/07/2021 but deemed properly filed and served on 12/05/2022.

When the appeal was called for hearing on 12/05/2022, learned counsel for the Appellant, Wahab Dako with Ruth Nwankwo, adopted the Appellant’s Brief of Argument and the Reply Brief as representing the Appellants’ argument in the appeal in urging the Court to allow the appeal. On behalf of the Respondent, A.I. Chukwu, Esq., adopted the Respondent’s Brief of Argument and urged the Court to dismiss the appeal.

In the Appellants’ Brief, four issues were distilled for the determination of the appeal, couched thus: “(i) Whether or not the learned trial Judge was right in assuming jurisdiction and competence to hear and determine the suit before it even when it was clear the Appellants were not served with the originating process of the suit.

This issue arose from Ground 1 of the Notice of Appeal. (ii) Whether or not the learned trial Judge was right in holding that the Appellants were liable to the Respondent in negligence and thereby entering judgment against the Appellants for an act that was not committed by the Appellants.

This issue arose from Grounds 2 and 5 of the Notice of Appeal. (iii) Whether or not learned trial Judge was right in entering judgment against the 2nd and 3rd Appellants, who from the evidence before the Court, were not the owners of the 1st Appellant and had no interest in the 1st Appellant, which the Respondent alleged caused injury to him.

This issue arose from Ground 3 of the Notice of Appeal. (iv) Whether or not awarding the sum of ₦100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants and in favour of the Respondent was not perverse, unjustified, unwarranted and ridiculous. This issue arose from Ground 4 of the Notice of Appeal.” Like the Appellant, the Respondent also crafted four issues for determination in the following words: For all intents and purposes, the issues formulated by the Respondent is not dissimilar to that of the Appellant.

The only difference is that each party tailored the construction of the issues to suit their stand and what they want before the Court. In substance however, the issues are the same. For this reason, I will adopt the issues submitted by the Appellant in the resolution of this appeal. Arguments on Issue 1 Learned counsel for the Appellant submitted that the learned trial Judge erred in law when he assumed jurisdiction and competence to hear and determine the suit before him in spite of the fact that the Appellants were not served with the originating process of the suit.

He submitted that the law is trite that jurisdiction is the very basis upon which any Court or tribunal can try a case because any trial conducted without jurisdiction is a nullity. He posited that the law is settled that originating process in a suit must be served on the Defendant(s) personally and that failure to serve the originating process in a suit on the Defendant(s) robs the Court of the jurisdiction to hear the suit and it is not enough that the Defendants allegedly knew or were informed that a suit has been pending against them. He referred to the cases of Estate of Late Chief H.I.S.

Idisi vs. Ecodril (2016) 12 NWLR (Pt. 1527) 355 AT 376, Alhaji Mohammed vs. Chief Babalola, SAN (2012) 5 NWLR (Pt. 1293) 395 AT 434, Nkpornwi vs. Ejire (2009) 9 NWLR, (Pt.1145) 131 AT 169, Ononye vs. Chukwuma (2005) 17 NWLR, (Pt. 953) 90 at 114-115.

It was contended that in the instant case, the 1st Appellant was not served personally with the originating process in respect of this suit, while the 2nd and 3rd Appellants were not served at all. The law is also trite that affidavit of service is the conclusive evidence of service where a question of service is in issue – Estate of Late Chief H.I.S. Idisi v. Ecodril supra at 379. Learned counsel maintained that the affidavit of service deposed to by one Mr.

Efik Dennis, a Bailiff of the Federal High Court, on 29th April, 2014 at page 90 of the Record of Appeal shows that the originating process in respect of this suit was only served on one Abubakar Mohammed (AGM) who was not a party to the suit and does not represent or act for any of the Appellants in the suit at the lower Court.

He noted that the said affidavit of service was the only proof of service of the originating process. ​ He contended that by the nature of the suit before the lower Court, the 1st Appellant, which is a Vessel, ought to have been served in compliance with the provision of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011; the 2nd Appellant, a limited liability company, ought to have been served in compliance with the provision of Section 78 of the Companies and Allied Matters Act, 2004 and Order 6, Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009 while the 3rd Appellant, who is an individual, ought to have been served personally in compliance with the provision of Order 6, Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009.

It was submitted that in view of the fact that the suit before the trial Court was an action in rem and the 1st Appellant was a Vessel, the Writ of Summons ought to be served on the Vessel or on the master of the Vessel. It was further argued that the affidavit of service did not disclose whether Abubakar Mohammed who was served with the originating process was an Assistant General Manager of the 2nd Appellant or an officer or employee of the 2nd Appellant at all.

Reference was made to the affidavit in support of the Appellants’ Motion on Notice dated 27th April, 2015, at page 88 of the Record wherein the Appellants deposed to the fact that Abubakar Mohammed was not an officer of the 1st and 2nd Appellants.

It was noted that the Appellants’ preliminary objection challenging the jurisdiction of the trial Court on the ground that the originating process of the Court was not served on the Appellants, was overruled by the lower Court on the ground that it was an abuse of Court process and that the Appellants having taken steps by filing Court process were deemed to have waived their right of service.

He submitted that even though all the Appellants entered conditional appearance, the law is trite that service of originating process is the determinant of Court’s jurisdiction over a matter and not the entering of conditional appearance by a Defendant, relying on the cases of Guinness (Nig) Plc vs. Ufot (2008) 2 NWLR (Pt. 1070) 52 AT 78-80, Carribean Trading & Fidelity Corp vs. NNPC (1991) 6 NWLR (Pt. 197) 352.

Counsel faulted the finding of the learned trial Judge in holding that it was too late in the day for the Appellants to contend that they were not served with the originating process in the suit because their earlier application seeking the striking out of the suit on the ground that it was statute barred was dismissed and therefore the application challenging the service of the originating processes constitute an abuse of Court process.

On the lower Court findings at pages 311 and 312 of the Record that the 2nd and 3rd Appellants having not filed any defence to the claims of the Respondent despite being represented by the same counsel that represented the 1st Appellant, were deemed to have admitted the claims of the Respondent, learned counsel submitted that the position of the learned trial Judge is in sharp contrast with the position of the law that the issue of jurisdiction is so vital that it can be raised at any stage of a case be it at trial, on appeal to Court of Appeal or to the Supreme Court.

He referred to the cases of Ajayi vs. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 SC at 181; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350, and submitted that the fact that the Appellants were represented in Court does not change the age-long position of the law that each of the Appellants must be properly served lest the Court would be stripped of its jurisdiction. He further submitted that the non-service of the originating Court processes on the Appellants is a breach of the Appellants (especially the 2nd and 3rd respondents) right to fair hearing.

After quoting the dictum of Nweze, JSC, in Estate of Late Chief H.I.S. Idisi v.

Ecodril (supra) at pages 376-377 of the report, counsel urged the Court to resolve the first issue for determination in favour of Appellants and hold that the proceedings and judgment of the lower Court were done without jurisdiction and therefore null and void. ​ On his part, learned counsel for the Respondent, Augustine Idume Chukwu submitted that considering the affidavit of service of the originating processes on the Appellants vis-a-vis the subsequent steps taken by them in the proceedings of the lower Court, the learned trial Judge rightly assumed jurisdiction and competence to hear and determine this suit.

He submitted that the Appellants’ allegation of non-service of the originating process in this suit after participating fully in the proceedings of the lower Court and defended this suit on the merit is ludicrous and absurd. He noted the 1st Appellant’s admission in paragraph 3 of an affidavit in support of a motion dated 10/02/2016, contained at page 146 of the Record, that the said originating process was served on her on the 28/04/2014.

He also referred to the affidavit of service of the originating processes as contained in pages 90-91 of the Records of Appeal stating that it was served on the Appellants at their registered address at 31B, Marine Road, Apapa, Lagos, by a bailiff of the trial Court wherein the Assistant General Manager of the 2nd Appellant, who in all ramifications qualifies as the principal officer of the latter, acknowledged receipt of the processes on behalf of the Appellants.

Learned counsel submitted on the settled position of the law that a party who intends to contest service of originating process is to do so at the commencement of the suit before taking steps in the proceedings, and that where he fails to do that, he cannot be heard to question the said service thereafter. He referred to the cases of Saude v. Abdullahi (1989) LPELR – 3017 (SC) (Pp. 22, paras B-G); Zakirai v. Muhammad & Ors (2017) LPELR – 42349(SC) (Pp. 45-47, paras D-E); Obadina & Ors v.

Fasoyinro (2017) LPELR – 42182(CA), and argued that the Appellants belatedly raised the issue of non-service via a Motion on Notice dated 27/04/2015 which the trial Court dismissed upon finding on one hand that the relief sought by Appellants in the said motion is incompetent and on the hand that the Appellants conduct in bringing the motion itself amounts to an abuse of Court process given the prior steps the Appellants had taken in the proceedings of the Court.

Learned counsel observed that the 1st, 2nd and 3rd Appellants in this suit were jointly sued over the same set of claims and they jointly engaged the same counsel to represent them. The said counsel entered a conditional appearance on behalf of all the Appellants and contended that the suit had become statute barred via a Notice of Preliminary Objection dated 26th of August, 2014 filed by the 1st Appellant, which was duly heard and subsequently dismissed by the trial Court.

Also, on account of the said originating process served on the Appellants, the 1st Appellant filed a Statement of Defence on 26/08/2014, as contained at pages 37-50 of the Record of Appeal; while the 2nd and 3rd Appellants refused to file defence but participated in the proceedings throughout and even jointly filed a final written address at the conclusion of hearing as well as reply on points of law. The Court was urged to discountenance the argument of the Appellants on the question of service as same is not tenable. Counsel argued that the case of Estate of Late Chief H. I. S. Idisi v.

Ecodril (supra), heavily relied upon by the Appellant does not apply to the instant appeal as the facts are not the same. Counsel further submitted, with the aid of Chief Abe & Anor v. U. B. N. Plc (2005) All FWLR (Pt. 291) 1727 at 1738 and Mmaduagwu & Anor v. Ifeanyi & Anor (2016) LPELR 41012 (CA), that technical justice is no justice and that where a party is made aware of proceedings then he cannot complain of lack of service. He urged the Court to resolve this issue in favour of the Respondent.

Arguments on Issue 2 Appellant’s counsel submited that the learned trial Judge erred in law when he held the Appellants liable to the Respondent in negligence, when from the evidence before the trial Court, the ingredients or elements of negligence were not established against the Appellants and the accident that caused injury to the Respondent was not caused by the Appellants. Relying on Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 AT pages 649-650; U.T.B. (Nig.) vs. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 AT 465; Orhue vs.

NEPA (1998) 7 NWLR (Pt. 557) 187, he submitted that the law is settled that to succeed in an action in negligence, the Plaintiff has to establish three major elements, which must exist conterminously, to wit:- (a) That the defendants owe him a duty of care; (b) That there is a breach of that duty; and (c) That an injury to the Plaintiff has occurred, between which and the breach of duty a causal connection must be established.

It was further submitted that success in an action in negligence is a matter of fact to be proved by evidence and not by mere hearsay and speculations, citing the case of F.A.A.N. vs. W.E.S. (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 AT 251, Kabo Air Ltd. vs. Mohammed (2015) 5 NWLR (Pt. 1451) 38 AT 65-66. Again, that for a claim in negligence to be sustained against the Appellants herein, it is not enough to show that the Respondent sustained an injury, but the injury must be tied to the action of the Appellants.

Learned counsel also argued that for a Plaintiff to succeed, every allegation or claim of negligence must be particularized and specifically proved – Kabo Air Ltd vs. Mohammed (supra) AT 65-66, U.T.B Plc Vs. Ozoemena (supra), Dare vs. Fagbamila (2009) 14 NWLR (Pt. 1160) 177, Ojo vs. Gharoro (2006) 10 NWLR (Pt. 987) 173.

It was argued that the Respondent did not particularize in his Statement of Claim the alleged negligence committed by the Appellants against him as his story was full of hearsay, an issue which was raised in the final address of the 1st Appellant but was not considered by the trial Court. He posited on the authorities of Kakih vs. P.D.P. (2014) 15 NWLR (Pt. 1430) 374 AT 418-419; Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 AT 129, that hearsay evidence cannot be ascribed any probative value.

Appellants contended that the Respondent’s injury was not caused by the 1st Appellant but by a hose hired by the Charterers (Euroafric Oil and Coastal Services Limited) as testified to by DW1.

He submitted that the accident occurred at the shore and not on board the Vessel and the only connection the Vessel had with the accident was that the Vessel berthed in the water at the jetty where the accident occurred, and nothing more. ​ It was further submitted for the Appellants that by virtue of the provisions of Sections 135 and 136 of the Evidence Act, 2011, the burden of proving the existence of any fact in issue is on the party who asserts it and therefore, the Respondent had the primary burden to establish the facts in support of his case before Judgment could have been entered in his favour, which is that the injury he sustained was caused by the Appellants and that the Appellants were negligent.

He made reference to Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 AT 649, A.M. Co (Nig.) Ltd vs. Volkswagen (Nig.) Ltd. (2010) 7 NWLR (Pt. 1192) 97 AT 118; U.T.B. (Nig.) vs. Ozoemena (supra) AT 465, Hilary Farm Ltd & Ors. vs. M/V Mahtra & Ors. (2007) 14 NWLR (Pt.1054) 210 at 236. It was argued that the trial Court did not resolve the issue raised by the Appellants in their final written address as to whether the Respondent has established a claim of negligence against the Appellants.

Rather, the learned trial Judge glossed over the issue and held at page 312 of the Record that negligence in the instant case was that of res ipsa loquitur, a finding which is erroneous and misconceived, as the Respondent never pleaded res ipsa loquitur in his Statement of Claim and also did not express any uncertainty as to the cause of his injury, which he said was a hose. Reference was made to the case of P.S.H.S.M.B. vs.

Goshwe (2013) 2 NWLR (Pt. 1338) 383 AT 397, where the Supreme Court held that the doctrine of res ipsa loquitur is applicable when the facts stand unexplained and therefore the natural and reasonable, not conjectural inference from the facts shows that what had happened is reasonably to be attributed to some act of negligence, on the part of somebody. He cited Julius Berger (Nig.) Plc vs. Nwangwu (2006) 12 NWLR (Pt. 995) 518 at 540, where it was held that the doctrine of res ipsa loquitur is not applicable when the cause of the accident is known.

Counsel drew the Court’s attention to the 1st Appellant’s defence when DW1 explained that the hose that injured the Respondent was not from her, but was obtained and used by Euroafric Oil and Coastal Services Limited to flush their pipes. He expressed surprise how the learned trial Judge arrived at his findings that proof in the case was that of res ipsa loquitur and that it was not discharged by the Appellants.

It was contended that the position of the law has always been that Courts have powers only to the extent of the claims, facts and evidence presented before them by the parties and have no power to make a case for a party different from what the party has brought to the Court, relying on Union Bank of Nigeria Plc v. E. D. Emole (2001) 12 S.C. (Pt. 1) 106; (2001) LPELR-3392 (SC).

On the argument of decision of the lower Court that the Appellants, who alleged that the hose that cause injury to the Respondent does not belong to them, ought to have commenced third party proceedings against Euroafric Oil and Coastal Services Limited, the owner of the hose, learned counsel for the Appellants submitted that the Appellants could not have properly commenced third party proceedings against Euroafric Oil and Coastal Services Limited because the Appellants did not contend that they had any claim, remedy, relief, contribution or indemnity whatsoever against Euroafric Oil and Coastal Services Limited.

He refered to the cases ofLabode vs. Otubu (2001) 7 NWLR (Pt. 712) 256 AT 290; NNPC v. Zaria & Anor (2014) LPELR-22362(CA), and urged the Court to resolve the second issue in favour of the Appellants. Arguing contrariwise, learned counsel for the Respondent maintained that the lower Court was justified in invoking the doctrine of res ipsa loquitur to find the Appellants negligent in relation to the incident of 04/07/2011 which resulted in the severe injuries inflicted on the Respondent. He submitted on the authorities of Ibekendu vs. Ike (1993) LPELR – 1390 (SC) and Agip (Nig) Plc vs.

Udom Ossai (2018) LPELR- 44712 (CA), that the doctrine of res ipsa loquitur and particulars of negligence need not be specifically pleaded. It was argued that the conditions for the application of the doctrine of res ipsa loquitur as enunciated in the same case of P. S. H. S. M. B. v. Goshwe (2013) 2 NWLR (pt. 1338) 383, cited by the Appellants, are abundantly present in the instant case through the evidence of PW1 and PW2 on how a hose from the 1st Appellant’s ship burst and shattered the Respondent’s right leg, causing him permanent disability.

It was further argued that there is nothing hearsay about the evidence led by the Respondent, vide pages 7-9 and 10-13 of the Record, as both the Respondent himself and PW2 are eye witnesses to the bursting of the hose from the Vessel. Learned counsel submitted further that the law is trite that where the doctrine of res ipsa loquitor is applicable, the burden of proof is on the defendant to establish by credible evidence that the injury and damages suffered by the complainant was not occasioned by the negligent act or omission of the defendant.

In the instant case, according to the Respondent, the Appellants failed completely to discharge that burden of proof as the 2nd and 3rd Appellants who were the owners and/or managers of the 1st Appellant by virtue of having possession and control of the latter at the material time the accident occurred, did not even file any defence to dispute the Respondent’s averments as contained in the Statement of Claim or led any shred of evidence whatsoever in rebuttal of the evidence also led by the Respondent. He referred to the cases of EMODI V. EMODI (2015) 2 NWLR (PT. 1443) 201-410 (P. 344, PARAS.

B-C); DONALD V. SALEH (2015) 2 NWLR (PT.1444) 411-624 (P.593-594, PARAS. G-A) and submitted that the refusal of the 2nd and 3rd Appellants to file a defence amounts to an admission of the Respondent’s claim.

In view of the evidence of DW1 at page 46 of the Record that the 1st Appellant was ‘duly equipped to undertake discharge of cargo’, the Appellants’ argument in their brief that the 1st Appellant did not have a hose with which cargo is dischargeable, is inconsistent with the evidence of DW1, which rendered the claim that the 1st Appellant did not have a hose not only as an afterthought but an unpleaded fact which goes to no issue and should be discountenanced – ISHENO vs. JULIUS BERGER (NIG. PLC. (2008) 6 NWLR (Pt. 1084) 582 AT 589; OLUYEDE vs.

ACCESS BANK PLC (2015) 17 NWLR (Pt. 1489) 445 AT 608, TATU vs. THE ESTATE OF ALHAJI ADAMU (2015) 13 NWLR (Pt. 1476) 229. The Court was urged to resolve this issue in favour of the Respondent.

Arguments on Issue 3 The Appellants submitted on this issue that even if the 1st Appellant is found to be liable in negligence to the Respondent, such liability would not extend to the 2nd and 3rd Appellants because the 2nd and 3rd Appellants do not have any connection with the 1st Appellant, referring to Exhibit D2, the Certificate of Registration of the 1st Appellant with NIMASA which shows that the 1st Appellant was owned by Sea Pioneer Limited, the employer of DW1, a fact which was not rebutted or contradicted by the Respondent and should therefore be taken as correct.

It was further submitted that assuming the 3rd Appellant was the Managing Director and the person running the Sea Pioneer Limited, which owns the 1st Appellant, that fact does not make the 3rd Appellant liable to the Respondent in the instant case as the 1st Appellant has distinct legal personality separate from even its promoters by virtue of section 37 of the Companies and Allied Matters Act (CAMA), Cap. C20 LFN, 2004 and the case of Salomon Vs. Salomon (1897) AC 22.

Learned counsel submitted, relying on the evidence of DW1 who was on the Vessel as Supercargo on the date of the incident, that the 2nd and 3rd Appellants had no interest whatsoever in the 1st Appellant, but that the 1st Appellant was owned and controlled by Sea Pioneer Limited, a company he worked with. He faulted the lower Court for ignoring the overwhelming evidence of ownership of the 1st Appellant by Sea Pioneer Limited (both oral and documentary), especially when there was no evidence to indicate that the 2nd and 3rd Appellants chartered the 1st Appellant at the relevant time.

In view of the uncontradicted evidence that the 2nd and 3rd Appellants do not own shares in the 1st Appellant at all and are not the owners of the 1st Appellant, the Court was urged to hold that the lower Court was wrong in entering Judgment against the 2nd and 3rd Appellants, who were not the owners and had no interest in the 1st Appellant Vessel, which allegedly caused injury to the Respondent.

Learned counsel observed that though the condition of the Respondent is pathetic and ordinarily attracts a lot of emotions, the trial Court ought not to have been carried away by the emotional hue of this case in entering Judgment in favour of the Respondent against the Appellants, even when there was no cogent evidence linking the Appellants with the injury sustained by the Respondent. Rather, the judgment delivered by the trial Court was borne out of sentiments because the learned trial Judge did not dispassionately consider the overall evidence before him in deciding the matter before him.

Referring to the cases of Suleman vs. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298 AT 322-323 and Abubakar vs. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1, he submitted that the law is settled that sentiments and emotions do not have a place in judicial determinations because all the parties before the Court are entitled to justice.

The Court was prevailed upon to hold that the 2nd and 3rd Appellants were not the beneficial owners of the 1st Appellant and to resolve this issue in favour of the Appellant. ​ On the part of the Respondent, counsel insisted that the decision of the lower Court that the 2nd and 3rd Appellants are the beneficial owners of the 1st Appellant is in line with the uncontroverted pleading and undisputed evidence before that Court.

He referred to the pleading of the Respondent on how he was hired by the agents/crew of the Appellants to convey bottle water to the Waziri jetty where the 1st Appellant anchored, and how the said pleading was not controverted by the 2nd and 3rd Appellants who did not file a defence to the action.

It was submitted that both in their written statements on oath and under cross-examination, PW1 and PW2 maintained that throughout the period the Respondent dealt with the Appellants, the crew members of the 1st Appellant ship had always adorned identification cards of the 2nd Appellant and also that the 3rd Appellant was always on ground at the said jetty on inspection of the 1st Appellant whenever the latter was berthed there, without rebuttal evidence. The cases of OKENE vs. ORIANWO (1988) 9 NWLR (Pt.566) 408; MORENIKEJI V. ADEGBOSIN (2003) 8 NWLR (Pt. 823) 612; IKPANG vs.

EDOHO (1978) ALL NLR 196, were cited to support the legal proposition that uncontroverted averment contained in a pleading is deemed admitted and needs no further proof. The Respondent urged the Court to note the settled position of the law that where no defence has been filed to a plaintiff’s claim, the defendant will be deemed to have admitted the claim or relief in the statement of claim and the trial Court’s only alternative in the circumstance is to give judgment for the plaintiff, citing the cases of EMODI vs. EMODI (2015) 2 NWLR (Pt. 1443) 201-410 AT 344; DONALD vs.

SALEH (2015) 2 NWLR (Pt.1444) 411-624 AT 593-594. Respondent also contended in line with Section 2 (3) (d) of the Admiralty Jurisdiction Act, 1991 that one need not be the registered owner of a ship or have a share interest in a ship before he can be sued for wrongful acts of the ship as maritime claims for personal injury are maintainable not only against the registered owner or charterer of a ship but also against persons in possession of the ship.

He submitted that the 2nd and 3rd Appellants were not only in possession of the 1st Appellant, the wearing of the Identification Card of the 2nd Appellant company by the crew members on board the 1st Appellant ship and the regular inspection of the latter by the 3rd Appellant during the period the Appellants transacted with the Respondent as contained in the Respondent’s uncontroverted averments and testimonies all go to show that the 2nd and 3rd Appellants were also in control of the 1st Appellant. Reliance was placed on THE M.V. “S. ARAZ” vs.

SCHEEP (1996) 5 NWLR (Pt.447) 128-254 AT 220; ALLIED TRADING CO. LTD. vs. G.B.N LINE (1985) 2 NWLR (Pt.5) 74 AT 81-82. He urged the Court to resolve this issue in favour of the Respondent. Arguments on Issue 4 This issue challenges the quantum of damages awarded to the Respondent.

The Appellants submited that even if they were liable in negligence to the Respondent as held by the honourable Court, the award of a whooping sum of N100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants by the trial Court, in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent at a reputable hospital together with the publication of apology to the Respondent in three national dailies, was most perverse, unwarranted and unjustified.

He urged that this is a good instance where this Court should interfere with the award, otherwise, the Appellants would be made to suffer gross injustice as a result of the wrong exercise of the trial Court’s discretion in making the award of general damages, citing United Bank Plc V. BTL Industries Limited (2004) 18 NWLR (pt. 904) 108 at 236 -237; British Airways vs. Atoyebi (2014) 13 NWLR Part 1424, 253 AT 287-288; Spring Bank Plc. vs.

Dokkin Ventures Nigeria Limited (2012) LPELR – 7983 (CA), where the Court listed the instances in which the appellate Court will interfere with the award of general damages.

Counsel for the Appellants insisted that in the instant case, the exercise of the discretion of the trial Court in awarding a whooping sum of N100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent was most perverse, unwarranted, unjustified and an outright disregard of legal principles.

It was further argued that the totality of the evidence before the trial Court was not enough to have suggested that the probable loss suffered by the Appellant as a result of the accident would amount to a whooping sum of N100,000,000.00 (One Hundred Million Naira).

Counsel submitted that the lower Court took into consideration irrelevant matters in the award of damages as a reading of the judgment would reveal that the learned trial Judge resorted to applying sentiments in making the award against laid down principles of law, hence the amount awarded was ridiculously high. ​ This Court was called upon to resolve the fourth issue in favour of the Appellants and intervene by setting aside the award of the sum of N100,000,000.00 (Hundred Million Naira) as general damages in favour of the Respondent in order to prevent injustice to the Appellants.

Finally, the Court was urged to set aside the judgment of the Federal High Court, Lagos Division, in Suit No: FHC/L/CS/1612/2013 delivered on 07/07/2017 for being grossly perverse, erroneous, unjustifiable and outrageous.

On behalf of the Respondent, it was submitted on this 4th issue that the Appellants have not shown sufficient reasons to warrant interference with the aforesaid award made by the learned trial judge, and that contrary to the Appellants’ arguments in paragraphs 7.1-7.6 of the Appellants’ Brief, the damages awarded against the Appellants is warranted, justified and not perverse or erroneous given the peculiar circumstances of this case which is distinguishable from the facts in British Airways v. Atoyebi (2014) 13 NWLR (Pt.1424), cited by Appellants in support of their argument on this issue.

Learned counsel highlighted the distinguishing features of the two cases at paragraphs 7.3-7.6 of the Respondent’s Brief and argued strongly that the Respondent deserve every kobo of the damages awarded him to assuage his pain, suffering and psychological torture; and that the call by the Appellants on this Court to set aside the said award speaks volume of the Appellants’ insensitivity to the Respondent’s plight. He prayed the Court to resolve this issue in favour of the Respondent and uphold the findings of the lower Court in that regard.

On the whole, the Court was urged to dismiss the appeal and affirm the judgment of the lower Court. Appellants’ reply to some of the new issues raised by the Respondent would be addressed, where necessary, in the course of the resolution of issues in the appeal. Resolution of Issue 1 It has been a settled issue that service of originating processes on a Defendant is a fundamental condition precedent to the Court’s exercise of its jurisdiction to hear and determine any case.

Service of originating process is very crucial to the competence and indeed the jurisdiction of the Court because it is the foundation of the structure of litigation. It is a constitutional issue bordering on the principle of fair hearing. Where an originating process is not served on a Defendant or a Respondent in an appeal, the Court proceedings, including any judgment or decision resulting from such proceedings is rendered a nullity. See Ihedioha & Anor vs. Okorocha & Ors (2015) LPELR-40837 (SC) AT 69-70; Adegbola vs. Osiyi & Ors (2017) LPELR-42471 (SC) AT 18-19; Idisi vs.

Ecodril (Nig) Ltd & Ors (2016) LPELR-40438 (SC) AT 23-25; Fidelity Bank Plc vs. MT Tabora & Ors (2018) LPELR-44504 (SC). The essence of service of Court process is to adequately notify the person served or the defendant of the existence of the suit or claim against him to enable him defend same should he desire so to do. See Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR-2505 (SC).

The fundamental nature of service of Court process on parties is such that absence of it robes the Court of any jurisdiction that it would otherwise have had, because it is a condition precedent to the exercise of jurisdiction by Court. Authorities are legion on the point, that service of Court process on the opposing party is crucial and fundamental as it is the service of the process that gives the Court the jurisdiction and the competence to entertain and make pronouncement on such Court process. Without service, the jurisdiction of the Court cannot be activated with respect to such process.

Failure to serve process where service of the said is required is a failure which goes to the root of the adjudication process. The prominent exception to this rule is ex-parte application, where the opposing party is not expected to be put on notice. It is settled law that in proceedings where service of process is required, failure to serve process on the other party or parties is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity.

This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 (SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). In the case of Eimskip Ltd vs.

Exquisite Industries (Nig) Ltd (2003) LPELR-1058 (SC), Niki Tobi, JSC, had this to say on the effect of non-service of Court process: “Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will assume and rightly too for that matter, that he has no defence.

But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. In the often cited case of Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6, Nnnamani, JSC., relying on the English decision of Craig v. Kanseen (1943) 1 QB 256, held that failure to serve Court process goes to the issue of competence and jurisdiction of the Court and in such a case, the proceedings are a nullity and any orders made would also be nullities. In Oke v.

Aiyedun (1986) 2 NWLR (Pt. 23) 548, the Supreme Court referred to its earlier decision in Skenconsult and held that it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conception of the proper procedure in litigation.” It has equally been held by the apex Court, times without number, that non-service of Court process on a party, where service is required, amounts to breach of the party’s right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC), Ihedioha vs. Okorocha (supra), Achuzia vs.

Ogbomah (2016) LPELR-40050 (SC); Okeke vs. Lawal & Ors (2018) LPELR-43920. In the recent case of Michael K. Aondoakaa, SAN vs. Emmanuel Bassey Obot (2021) LPELR-56605 (SC) AT 14-15, the Supreme Court, speaking through Kekere-Ekun, JSC, reiterated the trite principle in the following words: “It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit.

Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity.

See Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 AT 26; Mgbenwelu vs Olumba (2016) LPELR-42811 (SC) AT 36-37 E -D.” In the instant case on appeal, the Appellants claimed that the 1st Appellant was not served personally with the originating process in respect of this suit, while the 2nd and 3rd Appellants were not served at all.

It was contended that by the nature of the suit before the lower Court, the 1st Appellant, which is a Vessel, ought to have been served in compliance with the provision of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011; the 2nd Appellant, a limited liability company, ought to have been served in compliance with the provision of Section 78 of the Companies and Allied Matters Act, 2004 and Order 6, Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009; while the 3rd Appellant, who is an individual, ought to have been served personally in compliance with the provision of Order 6, Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009.

It was submitted that in view of the fact that the suit before the trial Court was an action in rem and the 1st Appellant was a Vessel, the Writ of Summons ought to be served on the Vessel or on the master of the Vessel.

From the affidavit of service of the originating process domiciled at page 90 of the Record deposed to by one Efik Dennis, a Bailiff of the Federal High Court dated 29/04/2014, all the Appellants, then as Defendants, were served with the Writ of Summons and Statement of Claim through one Abubakar Mohammed, the Assistant General Manager, at 31B Marina Road, Apapa, Lagos, on 28/04/2014. The endorsement of the said Abubakar Mohammed is at page 91 of the Record. This is the only evidence of service of the originating process on the Appellants.

Interestingly, the address for service on all the Appellants was given as 31B, Marina Road, Apapa, Lagos. No issue was made of that address. None of the Appellants denied the said address. My noble lords, from the affidavit of service at pages 90-91 of the Record, it can superficially be said that there is no proof that the 1st and 3rd Appellants were properly served with the originating process as required by law.

Being a Vessel, service of Writ of Summons in an action in rem on the 1st Appellant, by virtue of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011, is to be done by affixing a sealed copy of the Writ to a mast or some other conspicuous part of the ship or by delivering same to the master of the ship. Neither of the stated method of service was employed by the Respondent in this appeal. There is no evidence in the printed Record to show that Abubakar Mohammed, the Assistant General Manager, who was served at 31B, Marina Road, Apapa, was the master of the 1st Appellant.

There is also no evidence on the Record, not even a claim by the Respondent, that the service was carried out by affixing the process on the 1st Appellant. On this score, I hold that the service of the originating process on the 1st Appellant was not made in accordance with the law and is therefore irregular.

With respect to the 3rd Appellant, the Statement of Claim described him at paragraph 4 as the Managing Director of the 1st Appellant. By the Rules of the Federal High Court, service of originating process on him ought to be personal, unless ordered otherwise by the Court. No such order was made by the lower Court and the 3rd Appellant was not personally served with the process in question.

Service of the originating process on the 3rd Appellant, through Abubakar Mohammed, the Assistant General Manager, did not accord with the requirement of the Rules governing personal service of originating process. Just like the service on the 1st Appellant, the service of the Writ of Summons on the 3rd Appellant is also irregular.

The 2nd Appellant is an incorporated company and the mode of service on companies are provided for in Section 78 of the Companies and Allied Matters Act (CAMA) as well as Order 6 Rule 8 of the Rules of the Federal High Court. One of the recognized modes of service of Court process on incorporated entities is by serving the process on a Principal Officer of a Company.

By all standard, an Assistant General Manager of a Company qualifies as a Principal Officer of such Company and therefore service of Court process on him qualifies as proper service under the provisions of the relevant enactment and Rules of Court just referred to, i.e., the CAMA and the Federal High Court Rules.

Now, the question is, as between the 1st and 2nd Appellant, who was Abubakar Mohammed serving as an Assistant General Manager? This question becomes germane when viewed against the fact that; (1) the address of all the Appellants is 31B, Marina Road, Apapa, Lagos; (2) Abubakar Mohammed signed for and collected the process on behalf of all the Appellants. If he was AGM for the 1st Appellant, the service is irregular, but regular if he was AGM for the 2nd Appellant.

However, there is nothing on the printed Record, particularly in the affidavit of service and the endorsement thereon at pages 90 & 91 of the Record, to show that Abubakar Mohammed was AGM for the 2nd Appellant. This Court cannot speculate as to who he was serving as between the 1st and 2nd Appellants, in the absence of material proof in that direction. Consequently, one can say without equivocation that the purported service of the originating process on the 2nd Appellant through one Abubakar Mohammed is irregular in law.

On the whole, based on my findings above, it is clear that the service of the originating process on all the Appellants is tainted with the toga of irregularity. The natural thing for me to do, having found that the service of the originating process on the Appellants did not comply with the requirements of the law as analyzed supra, is to set aside the said service and declare the proceedings and judgment of the lower Court a nullity. But there is more to that.

On taking a detour of the Record of Appeal, I found at pages 34-36 thereof, that all the three Appellants have entered conditional appearance on 26/08/2014. How all of them became aware of the action is not decipherable from the conditional appearance. That same date, the 1st Appellant filed a Statement of Defence with all the accompanying documents together with Notice of Preliminary objection on the ground that the action was statute barred. See pages 51-61 of the Record. The preliminary objection of the 1st Appellant was heard and dismissed by the lower Court on 19/03/2015.

Over a month thereafter, precisely on 27/04/2015, all the 3 Appellants filed a motion on notice seeking the dismissal or striking out of the suit on account of non-service of the originating process on them.

Among the Applicants in the motion is the 1st Appellant, who had not only filed a Statement of Defence to the suit, but also took further steps by filing application challenging the competence of the suit on account of statute of limitation, which was heard and dismissed. Again, the lower Court, at pages 106-108 of the Record, dismissed the motion holding same to be an abuse of Court process.

The 1st Appellant, in taking further steps in the proceeding, by filing an application to challenge the competence of the suit on ground other than want of proper service of the originating process, is deemed to have waived any irregularity that attended the service of the originating process on it.

The law is trite that a party who intends to contest service of originating process is obliged to do so at the commencement of the suit before taking steps in the proceedings, and where he fails to do so but decide to participate in the proceedings, he cannot be heard to question the said service thereafter. A party is deemed to have waived his right to challenge the propriety of service of originating process if he takes further steps and allows the proceedings to go on as if the right or priviledge never existed. See Ariori vs. Elemo (1983) SCNLR 1.

The 1st Appellant is estopped by operation of law from raising the issue of service having waived and forfeited it at the lower Court. A defendant will be held to have waived irregularity of service if he has taken a step such as entering appearance, filing defence and taking part in the proceedings. See Odu’a Investment Company Ltd vs. Talabi (1997) LPELR-2232(SC). This is exactly what the 1st Appellant in this appeal has done.

That is not all, in an affidavit filed in support of the 1st Appellant’s motion for extension of time to file its Statement of Defence sworn to by one Dennis Ogar on 19/02/2016 at pages 145-146 of the Record, the deponent alluded to the fact that the 1st Appellant was served with the originating process of the lower Court in the case now on appeal, when he stated at paragraph 3 of the affidavit thus: “I know that on 28th April, 2014, the Plaintiff/respondent served the 1st Defendant/Applicant with his Writ of Summons dated 20th November, 2013, Statement of Claim dated 19th November, 2013 together with the other accompanying process.”

This deposition, made on the authority of the 1st Appellant and her counsel, has swept the carpet off the feet of the 1st Appellant and exposed the futility of her attempt to deny service of the originating process. The deposition is an admission against interest and the 1st Appellant must cope and stand with it. While all these was going on, the 2nd and 3rd Appellants never filed a defence to the Respondent’s claim, even though the same counsel representing the 1st Appellant was the same counsel who filed a joint memorandum of conditional appearance for all the Appellants.

Interestingly, at the conclusion of trial, all the three Appellants filed an address titled: “DEFENDANTS’ FINAL ADDRESS” dated 10/03/2017, which occupies pages 216-232 of the Record, settled by Sylva Ogwemoh, SAN, FCIArb, (U.K.), Wahab Dako, Esq and Chibueze Muobuikwu, Esq as “Defendants’ Solicitors” but signed by Wahab Dako, Esq. Please note the position of the apostrophe on the word “Defendants”.

There is also a joint Reply filed on behalf of all the Appellants at pages 263-268 of the Record titled: “DEFENDANTS’ REPLY ON POINTS OF LAW TO THE PLAINTIFF’S WRITTEN ADDRESS” signed by their lead counsel, Sylva Ogwemoh, SAN, FCIArb, (U.K.) as Solicitor for all the Defendants.

All these goes to show clearly that even though the 2nd and 3rd Appellants failed to file a defence to the suit, they still proceeded to file joint final address, signifying their participation in the proceedings from the beginning to the end, starting with the filing of memorandum of conditional appearance and ending with a final address. These set of Appellants are, by their action, also caught by the doctrine of waiver.

With their active participation in the proceedings leading to the judgment against them, the 2nd and 3rd Appellants cannot now complain of lack of service of originating process. Issue 1 therefore stands resolved against the Appellants and in favour of the Respondent. Resolution of Issue 2 The main contentions of the Appellants under this issue are: i. The ingredients or elements of negligence were not established against the Appellants. ii. The accident that caused injury to the Respondent was not caused by the Appellants but by a hose belonging Euroafric Oil and Coastal Services Limited. iii.

The evidence led by the Respondent is based on hearsay and speculations. iv. Respondent has not proved that the injury he sustained was caused by the Appellants. v. Respondent ought to plead the particulars of negligence on the part of the Appellant for him to succeed, which he failed to. vi. Res ipsa loquitr, relied upon by the lower Court to find the Appellants negligent, is not applicable when the cause of the accident is known.

Black’s Law Dictionary, 8th Edition, defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. It is a careless behaviour, lacking proper care and attention. Going down memory lane in the development of the common law tort of negligence, Muhammad, JSC, (now CJN), in the case of Okwejiminor vs. Gbakeji & Anor (2008) LPELR-2537 AT 50-51, said: “Alderson B, in the old case of Blyth v.

Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784, defined negligence as follows: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Seventy-eight years thereafter, Lord Wright had this to say in defining negligence: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission.

It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” See the case of Lochgelly Iron and Coal Co. v. M’mullan (1934) A.C. 1 at P. 25. The latter definition spells out for us the three basic components of the torts of negligence: [a] duty of care [b] breach of the duty of care [c] damage caused by the breach.” See also Rabiu Hamza vs. Peter Kure (2010) LPELR-1351.

The breakdown from the above passage is that negligence is the breach of legal duty of care owed by the Defendant, which results in damage or injury to the Plaintiff. Therefore, the ingredients of the tort of negligence are (a) a legal duty owed to the Plaintiff by the Defendant to exercise care within the scope of his duty; (b) the breach of the said duty; and (c) the consequential damage or injury caused to the Plaintiff. For a Plaintiff to succeed in a claim founded on negligence, these three ingredients must be proved on preponderance of evidence.

The most important of the ingredients is the prove of duty of care. How does a duty of care arise? It arises where there is sufficient proximity between the Plaintiff and the Defendant such that the Defendant ought to have the Plaintiff in contemplation in the act complained of. In determining the proximity that would create legal duty, Lord Atkins developed the formular in the case of Donoghue vs. Stevenson (1932) AC 562, in his now famous dictum, as follows:

“The rule that you are to love your neighbor, becomes, in law, you must not injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The duty of care is said to exist where there is sufficient relationship of proximity as between the Defendant and the Plaintiff who suffered the damage or injury, such that a reasonable man can conclude that carelessness on the part of the Defendant likely caused the damage. Still on how to establish the duty of care, Pats-Acholonu, JSC, observed as follows: “I believe that in the course of clearly understanding the nature of the duty of care in the tort of negligence, the lucid restatement of the law by Lord Willberforce in Ann v.

Merton London Borough Council (1978) AC 728 is worthy of mention. In that case he said; “Through the trilogy in this house in Donoghue v. Stevenson (1932) A.C. 562, Hedley Byrne v. Hellen (1964) A.C. 465, Dorset Yacht Club v. Home Office (1976) A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.

First, one has to ask as between the alleged wrong doer and the person who has suffered damage if there is a relationship of proximity or neigbourhood that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the later in which case a prima facie duty of care arises.” In the instant case on appeal, the case of the Respondent is that he was, on 4th July, 2011, hired by the 2nd and 3rd Appellants through their agents/crew members of the 1st Appellant, who were wearing the ID card of the 2nd Appellant, to convey C-Way bottle water from Ajori market to Waziri Jetty, Apapa, Lagos, where the 1st Appellant anchored.

He conveyed the crew members and their goods to the Jetty. The 1st Appellant was then discharging fuel through a hose. As he was moving the bottle water close to the 1st Appellant on the request of the crew members for his assistance, an explosion occurred caused by the breakage of 1st Appellant’s hose, which hit and severely injured him.

Instead of rendering help to him the crew members on board the 1st Appellant only threw down a stretcher to help move him away from the scene of the accident, and the 1st Appellant hurriedly sailed out of the Jetty to avoid arrest, leaving the Respondent in pains and in the pool of his blood. None of the crew members/agents of the Appellants who hired the Respondent to carry bottle water to the Waziri Jetty and help them move the water near the 1st Appellant, was called to testify with a view to denying that the Respondent was on the Jetty and near the 1st Appellant on their invitation.

The cross-examination of the Respondent as PW1 and his other witness as PW2 by the Appellant’s counsel did not alter or contradict their material evidence-in-chief. By the doctrine of foreseeability and proximity, the 1st Appellant, under the ownership and/or control of the 2nd Appellant, whose Managing Director is the 3rd Appellant, owed a duty of care in the course of discharging her cargo, to ensure that other users of the Waziri Jetty are not harmed by her operation.

There is no doubt that as someone who conveys the members of the crew of the 1st Appellant to the Waziri Jetty, where the 1st Appellant anchored, and assisted them in moving the bottle water near the 1st Appellant, the Respondent is owed a duty of care by the 1st Appellant in the course of her operation at the Jetty. It is the duty of the 1st Appellant to ensure that safety standards are maintained in all facets of her operation at all times.

The bursting or breaking of the hose used in discharging the cargo is evidence of negligence on the part of the 1st Appellant to ensure high safety standards in/during the use of her facilities. Appellants argued that they were not responsible for the Respondent’s injury which was caused by the bursting of the hose as the hose in question does not belong to the 1st Appellant but to a company called Euroafric Oil and Coastal Services Limited. This argument is unconvincing.

The hose that broke or burst and injured the Respondent was affixed to the 1st Appellant and it is the channel by which the 1st Appellant discharges her cargo. In the circumstance of this case, who owns the hose or how the hose was procured is immaterial as long as it was affixed to the 1st Appellant in the course of 1st Appellant’s operation. That is the only thing the Respondent knows and the Appellants have not denied that the hose was used in discharging the cargo of the 1st Appellant. The Appellants also contended that the Respondent’s evidence was based on hearsay and speculation.

I have consulted the Record to see if the contention of the Appellants can be sustained. I read at pages 10-13 the statement on oath of PW1 which he adopted as his evidence-in-chief together with answers provided by him to questions under cross-examination at pages 25-27 of the Additional Record. I also read the evidence of PW2 at pages 7-9 of the Main Record and 30-34 of the Additional Record. I did this with a view to finding the hearsay and speculative evidence talked about by the Appellants.

This is my findings: Every event testified to by PW1 from the point he was hired by the crew members to convey them and C-Way bottle water to the Waziri Jetty to the time the hose from the 1st Appellant burst and hit him thereby causing him severe injury is not hearsay but from his personal knowledge. Ditto for the evidence of PW2 who was at the Jetty and an eye witness to all the happenings at the time.

I fail to see anything hearsay or speculative in all the material evidence led by the Respondent concerning how he got the Jetty and the severe damage he suffered following the bursting of the hose from the 1st Appellant. What may appear speculative is the fact that the Respondent concluded that the 1st Appellant was under the ownership or control of the 2nd and 3rd Respondent because the crew members who hired him were wearing the ID card of the 2nd Respondent.

Another aspect of speculation may be the evidence of PW2 who said that he has been operating at the Jetty as a commercial driver for 15 years and that he used to see the 3rd Appellant coming to inspect the 1st Appellant whenever the latter berthed at the Waziri Jetty. The 2nd and 3rd Appellants who the Respondents alleged to be in control of the 1st Appellant at the material time of the incident, apart from entering conditional appearance did not contest the pleading of the Respondent by filing a Statement of Defence.

Therefore, the pleading and evidence of the Respondent concerning the ownership/control of the 1st Appellant by the 2nd and 3rd Appellants is, in law, deemed admitted by them, and facts admitted need no further proof as no issue is joined. See Egesimba vs. Onuzuruike (2002) LPELR-1043(SC), Akahall & S0ns Ltd vs. NDIC (2017) LPELR-41984 (SC), FUT Minna vs. Olutayo (2017) LPELR-43827 (SC).

This is based on the principle that, where a Defendant disputes the Plaintiff’s claim, he must file a Statement of Defence to contradict, controvert, challenge or deny the claim and lead evidence thereon at the trial. See Oyekan II & Ors vs. Rossek (2009) LPELR-11906 (CA); Emodi & Ors vs. Emodi & Ors (2013) LPELR-21221 (CA). The law is also settled that in a case where the Defendant files no defence, the standard of proof cast on the Plaintiff is a minimal one. See Chami vs. U.B.A. Plc (2010) SCNJ 23 AT 39-40.

Having not filed a defence, the 2nd and 3rd Appellants are estopped from leading evidence to show that they neither owned nor are they in control of the 1st Defendant at the time of the injury/damage to the Respondent. This is founded on the principle that evidence led on facts not pleaded goes to no issue and should be disregarded by the Court. See Okonkwo vs. CCB Nigeria Plc (2003) LPELR-2484 (SC); Okoko vs. Dakolo (2006) LPELR-2461 (SC).

In this regard, the evidence of DW1 that the 1st Appellant was not owned or controlled by the 2nd and 3rd Appellants cannot avail them as they failed to join issues with the Respondent on that fact.

Throughout his testimony, DW1, who claimed to be on board the 1st Appellant at the material time of the incident, did not dispute the fact that the Respondent was injured following the bursting of the hose used by the 1st Appellant to discharge kerosine at the Waziri Jetty. He only stated that the Respondent was not contracted by the 1st Appellant to supply any water and that he was on the Jetty uninvited.

To this, I say that the duty of care under the law of tort is based on foreseeability and proximity and not on any contractual relationship between the Plaintiff and the Defendant as discussed earlier in this Judgment. Appellants also attacked the judgment of the lower Court on the invocation of the maxim of res ipsa loquitur, which the Appellants contended is not applicable in this case, as the cause of the accident is known. Further that the Respondent did not plead the maxim in his Statement of Claim. ​ The maxim res ipsa loquitur literally means “the thing speaks for itself”.

It is applicable to actions for injury where no proof of such negligence is required beyond the accident itself which is such as necessarily involves negligence. Res ipsa loquitur is a doctrine relied on by a Plaintiff to prove the negligence of a Defendant. It applies in a situation where the facts of a case are such that the negligence complained of would not have occurred if the Defendant had taken due care. The Court, in the circumstance, is entitled to draw inference from those facts unless the Defendant adduces evidence in rebuttal of such inference.

It operates to shift the burden on the Defendant to explain and show that the accident occurred without any fault on his part. Consequently, where the facts constituting negligence are known and specifically pleaded with particulars or where the Defendant offers a satisfactory explanation, the doctrine will no longer apply. See Ibekendu vs. Ike (1993) LPELR-1390 (SC); The Shell Petroleum Dev. Co. of Nig. Ltd vs. Anaro & Ors (2015) LPELR-24750 (SC); P. S. H. S. M. B. vs. Goshwe (2012) LPELR-9830 (SC); Chudi Verdical Co. Ltd vs. Ifesinachi Industries Nig. Ltd (2018) LPELR-44701 (SC).

There is a misconception in the submission of learned counsel for the Appellants with respect to causation of the accident in relation to the application of the doctrine of res ipsa loquitur. It is not the law that for the doctrine to apply, the cause of the injury or damage must not be known. Rather, the law is that the cause of the accident leading to the injury to the Plaintiff must not be known for proper application of the doctrine. The emphasis is on the cause of the accident not the resultant injury or damage. Where the cause of the accident is known, the maxim will not apply.

It should be made clear here that the cause of the injury to the Plaintiff and the cause of the accident are not the same. One leads to the other, that is to say, the accident leads to the injury. It is the cause of the accident that must not be known for the application of the doctrine, not the cause of the injury, because, invariably, it is the accident that causes the injury. In the case at hand, the cause of the injury to the Respondent is the hose that burst from the 1st Appellant and hit him.

What caused the hose to burst and hit him is not known to him and that is why he did not plead it, hence the application of the doctrine. It is the responsibility of the Appellants to explain what caused the accident which led to the injury to the Respondent, as the burden of proof has now shifted to them through the application of the doctrine of res ipsa loquitur. In the case of Air France vs. Akpan (2015) LPELR-24648 (CA), the Respondent was hit by an object while sleeping on her seat inside the Appellant’s aircraft and she fainted.

The cause of the injury to her is the object, but how and why the object hit her was not known to her. The Court held that res ipsa loquitur applies. In such a case, the burden will shift to the Defendant to explain what happened and show that there was no negligence on his part. Where it fails, the law presumes negligence and damages will follow. In the case of Ojo vs.

Gharoro & Ors (2006) LPELR-2383 (SC) AT 54-55, Oguntade JSC, captured the essence and application of the doctrine of res ipsa loquitur in a simple and lucid language as follows: “The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply. Barkway v.

South Wales Transport (1950) 1 All E.R. 392. Reliance on the doctrine of ‘res ipsa’ is thus a confession by the Plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence. In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the Court to infer therefrom negligence on the part of the defendant.” (Underlining supplied for emphasis).

One last thing about the doctrine of res ipsa loquitur that is deserving of mention is that the doctrine doesn’t have to be specifically pleaded. It suffices if the facts pleaded allude to the reliance on the doctrine by the Plaintiff. In the instant case, the Respondent pleaded that as he was moving bottle water near the 1st Appellant on the request of the crew members, he had an explosion and was hit by a broken or bust hose from the 1st Appellant, causing him severe injury. He subsequently fainted.

In his claim before the lower Court, he imputed negligence on the part of the Appellants as he does not know what caused the explosion and the bursting of the hose. Res ipsa loquitur can be inferred from this set of facts as pleaded by the Respondent, and the lower Court, in my view, rightly did so. In the final analysis, I resolve issue 2 against the Appellant.

Resolution of Issue 3 Learned counsel for the Appellants submitted on this issue that even if the 1st Appellant is found to be liable in negligence to the Respondent, such liability would not extend to the 2nd and 3rd Appellants because the 2nd and 3rd Appellants do not have any connection with the 1st Appellant, referring to Exhibit D2, the Certificate of Registration of the 1st Appellant with NIMASA which shows that the 1st Appellant was owned by Sea Pioneer Limited, the employer of DW1.

In the course of resolving issue 1, I held at pages 27-28 of this judgment, thus: “…the 2nd and 3rd Appellants never filed a defence to the Respondent’s claim, even though the same counsel representing the 1st Appellant was the same counsel who filed a joint memorandum of conditional appearance for all the Appellants.

Interestingly, at the conclusion of trial, all the three Appellants filed an address titled: “DEFENDANTS’ FINAL ADDRESS” dated 10/03/2017, which occupies pages 216-232 of the Record, settled by Sylva Ogwemoh, SAN, FCIArb, (U.K.), Wahab Dako, Esq., and Chibueze Muobuikwu, Esq., as “Defendants’ Solicitors” but signed by Wahab Dako, Esq. Please note the position of the apostrophe on the word “Defendants”.

There is also a joint reply filed on behalf of all the Appellants at pages 263-268 of the Record titled: “DEFENDANTS’ REPLY ON POINTS OF LAW TO THE PLAINTIFF’S WRITTEN ADDRESS” signed by their lead counsel, Sylva Ogwemoh, SAN, FCIArb, (U.K.) as Solicitor for all the Defendants.

All these goes to show clearly that even though the 2nd and 3rd Appellants failed to file a defence to the suit, they still proceeded to file joint final address, signifying their participation in the proceedings from the beginning to the end, starting with the filing of memorandum of conditional appearance and ending with a final address. These set of Appellants are, by their action, also caught by the doctrine of waiver.

With their active participation in the proceedings leading to the judgment against them, the 2nd and 3rd Appellants cannot now complain of lack of service of originating process. Issue 1 therefore stands resolved against the Appellants and in favour of the Respondent.” (Underlining for emphasis).

Apart from resolving the issue of service of the originating process on the 2nd and 3rd Appellants and the consequence of their participation in the proceedings, including filing of final address, under issue 1, I also resolved the issue of the liability of the 2nd and 3rd Appellants in the course of resolving issue 2, at pages 33-34 supra, as follows: “The 2nd and 3rd Appellants who the Respondents alleged to be in control of the 1st Appellant at the material time of the incident, apart from entering conditional appearance did not contest the pleading of the Respondent by filing a Statement of Defence.

Therefore, the pleading and evidence of the Respondent concerning the ownership/control of the 1st Appellant by the 2nd and 3rd Appellants is, in law, deemed admitted by them, and facts admitted need no further proof as no issue is joined. See Egesimba vs. Onuzuruike (2002) LPELR-1043(SC); Akahall & Sons Ltd vs. NDIC (2017) LPELR-41984 (SC); FUT Minna vs. Olutayo (2017) LPELR-43827 (SC).

This is based on the principle that, where a Defendant disputes the Plaintiff’s claim, he must file a Statement of Defence to contradict, controvert, challenge or deny the claim and lead evidence thereon at the trial. See Oyekan II & Ors vs. Rossek (2009) LPELR-11906 (CA); Emodi & Ors vs. Emodi & Ors (2013) LPELR-21221 (CA). The law is also settled that in a case where the Defendant files no defence, the standard of proof cast on the Plaintiff is a minimal one. See Chami vs. U.B.A. Plc (2010) SCNJ 23 @ 39-40.

Having not filed a defence, the 2nd and 3rd Appellants are estopped from leading evidence to show that they neither owned nor are they in control of the 1st Defendant at the time of the injury/damage to the Respondent. This is founded on the principle that evidence led on facts not pleaded goes to no issue and should be disregarded by the Court. See Okonkwo vs. CCB Nigeria Plc (2003) LPELR-2484 (SC); Okoko vs. Dakolo (2006) LPELR-2461 (SC).

In this regard, the evidence of DW1 that the 1st Appellant was not owned or controlled by the 2nd and 3rd Appellants cannot avail them as they failed to join issues with the Respondent on that fact.” (Underlining, mine). The corollary of the two findings above is that the 2nd and 3rd Appellants, having not contested the case put forward by the Respondent, are jointly, with the 1st Appellant, liable to the Respondent in negligence. Accordingly, I resolve issue 3 against the Appellants and in favour of the Respondent.

Resolution of Issue 4 Under this issue, the Appellants questions the propriety of the award of One Hundred Million Naira (N100,000,000:00) as damages to the Respondent against the Appellant. The Appellants argued that the award is perverse, unwarranted, unjustified and ridiculous. Damages is a pecuniary compensation granted to a successful party in an action for a wrong which is either of tort or a breach of contract.

General damages is defined as the kind of damages which the law pe toresum flow from the wrong complained of by the victim. It covers all losses which are not capable of exact quantification, including non-financial losses.

The purpose of damages is to compensate the Claimant for damage, injury or loss suffered by him. The guiding principle is restitutio in intergrum – Anambra State Environmental Sanitation Authority & Anor vs. Ekwenem (2009) LPELR-482 (SC). The measure or quantum of general damages is a matter that is at the discretion of a Judge taking into account the type of wrong committed or injury suffered. In ELF Petroleum vs.

Umah & Ors (2018) LPELR-43000 (SC) Ogunbiyi JSC restated the law as follows: “It is pertinent to re-iterate herein that in the award of general damages a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the Appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the Defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred….

Unlike special damages, it is generally incapable of exact calculation.” Generally, in civil claims, general damages are awarded to assuage for the injury, loss or inconvenience or both, suffered by the victim against the person(s) found to be at fault. General damages need not be pleaded or proved and it is awarded in a deserving case as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person.

The quantum need not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See Badmus & Anor vs. Abegunde (1999) LPELR-705 (SC), Eneh vs. Ozor (2016) 16 NWLR (part 1538) 219; Union Bank Plc vs. Chimaeze (2014) 9 NWLR (part 1411) 166. This is the guiding principle for the determination of quantum of general damages to be awarded in the event a civil claim succeeds.

In general term, the Appellate Court is reluctant to interfere with general damages awarded by a trial Judge in the exercise of his discretion, except where the award was made under a wrong legal principle or is too low or too high. See the case of Nigerian Bottling Company Plc vs.

Ubani (2013) LPELR-21902 (SC) at page 70, where Chukwuma-Eneh, JSC, held thus: “In stressing the point further, the law is also firmly positioned that, for an appellate Court to interfere with award of general damages, it must be satisfied that the trial Court in assessing the damages applied a wrong principle of law, or took into account some irrelevant factors or left out some relevant factors such that the amount awarded is ridiculously too low or too high to represent a fair estimate of the damage.” See also Anambra State Environmental Sanitation Authority & Anor vs.

Ekwenem (2009) LPELR-482 (SC), per Adekeye, JSC. In the earlier case of Union Bank of Nigeria vs.

Ajabule & Anor (2011) LPELR-8239 (SC), the Supreme Court restated the same legal principle in the following words: “The law is trite that where general damages are claimed, if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of law as to make it, in the Judgment of the appellate Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.” See also Cameroun Airlines vs.

Otutuizu (2011) LPELR-877 (SC); UBN Ltd vs. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558. In the instant case on appeal, the Respondent claimed before the lower Court, among other reliefs, the sum of One Hundred Million Naira (N100,000,000:00) against the Appellants as damages for negligence. The lower Court awarded the said amount to the Respondent as damages for negligence against the Appellants jointly and severally in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent.

Explanation on why the lower Court decided to award the entire sum claimed by the Respondent against the Appellants has not been offered in the Judgment.

If the purpose of damages is to serve as compensation for damage, injury or loss suffered by the Claimant, then, in view of the lower Court’s order on the Appellants to shoulder the cost of carrying out adequate surgery on the Respondent, the unexplained award of the sum of One Hundred Million Naira to the Respondent as damages against the Appellants is only ridiculously high and perverse because it did not take into account the legal principle for the award of damages as monetary compensation for injury suffered.

I am in agreement with the submission of the Appellants’ counsel that in awarding the sum of One Hundred Million Naira to the Respondent as damages, the learned trial Judge allowed emotion and sentiment to take the better part of him. I find this an appropriate case in which this Court will interfere with the wrong exercise of discretion by the lower Court in the award of damages.

Consequently, the award of One Hundred Million Naira (N100,000,000:00) damages to the Respondent is hereby set aside for being ridiculously too high and against the legal rules for the award of damages as monetary compensation for loss and injury suffered. In its place, I substitute and award the sum of Twenty Million Naira (N20,000,000:00) as damages to the Respondent jointly and severally against the Appellants.

In making this award, I take into consideration the fact that by the nature of the injury sustained by the Respondent, it is near impossible for him to continue to ply his trade as a commercial vehicle driver, which was his means of livelihood. Having resolved all the four issues in this appeal against the Appellants, save issue 4 which only succeeded in part, I hereby dismiss the appeal and affirm the judgment of the lower Court in Suit No.

FHC/L/CS/1612/2013 delivered on 07/07/2017, subject to the variation under issue 4 with respect to the quantum of damages, now reviewed downwards from One Hundred Million Naira to Twenty Million Naira.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Muhammad Ibrahim Sirajo, JCA, made available to me in advance, a draft copy of this judgment in which this appeal was dismissed, except on the variation of damages from N100 million to N20 million. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support. Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice.

It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him under the principle of audi alterem partem, which is one of the legs of natural justice, Fair hearing demands that each party in a dispute is given opportunity to be heard. It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it.

Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence or jurisdiction of the Court to entertain the matter. See Skenconsult (Nig.) Ltd. & Anor v. Ukey(1981) 1 SC.6,  Leedo Presidential Motel Ltd v. Bank Of The North Ltd & Anor (1998) LPELR-1775(SC), Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC), Onwubuya & Ors v. Ikegbunam (2019) LPELR-49373(SC).

If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings. 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).

This Court found that notwithstanding the irregular service of the originating processes on the Appellants, the Appellants participated in the hearing at the lower Court. The question now is whether they are deemed to have waived their rights to complain about any irregularity in service of the originating processes on them at this stage. A waiver can be defined as the abandonment of a right_ The Supreme Court, per Ogundare, JSC in Odu’a Investment Co. Ltd v. Talabi (1997) LPELR-2232(SC) at page 88, opined. “What is waiver? Defining the word “waiver”.

Idigbe J S.C. at page 22 Of the Ariori’s case said: “By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right: it therefore, implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option. he could have insisted upon.” Obaseki. J.S.C. at page 25 added: “Waiver is according to Words and Phrases legally defined Volume 5 P.301 1969 edition reprinted 1974 defined as the abandonment of a fight.

A person Who is entitled to the benefit of a Statutory provision may waive it and allow the transaction to proceed as though the provision did not exist.” It follows, therefore, that where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to Object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter.

By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to Object and cannot later in the proceedings seek to set same aside because of the original defect.” See also Ariori & Ors v. Elemo & Ors (1983) LPELR-552(SC); Auto Import-Export v. Adebayo & Ors (2005) LPELR-642(SC). The consequence of waiver is that it defeats non-compliance; NBC Plc v Ubani (2013) LPELR-21902(SC).

Having participated in the hearing of the matter before the trial Court by filing pleadings and other processes challenging the competence of the suit, on grounds other than the proper service of the originating processes, a complaint of any irregularity in service cannot be entertained at this stage. It is for the above reason, and for the fuller reasons given in resolution of the other issues addressed in the leading judgment that I also dismiss this appeal, save for the variation of damages from N100 million to N20 million. I abide by the orders made therein.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my learned brother. MUHAMMAD IBRAHIM SIRAJO and found out that he rightly resolved all the issues in this judgment. In other to prove negligence, the Claimant has to show that the Defendant owes him a Duty of Care, the duty of care has been breached by the Defendant and that Breach of Duty caused the claimant damages.

See DONOGHUE VS STEVENSON (1932) AC 562, CAPARO VS DICKMAN (1990) 2 AC 565 IYERE VS BENDEL FEED AND FLOUR MILL LTD (2008) LPELR-1578(SC), KOYA VS UBA LTD (1997) LPELR – 1711 (SC). In this instant appeal, the Respondent has successfully proven the ingredients of negligence against the Appellants. The 1st Appellant owed a duty of care to ensure that in the course of discharging her cargo, to ensure that all users of the Waziri Jetty are not harmed by her operations.

The bursting or breaking of the hose used in the discharge of the cargo is a breach of duty and that breach of duty caused the Respondent to suffer serious bodily injuries. I also abide by the findings of my learned brother in the resolution of other issues. Therefore, I abide by the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court in Suit No FHC/L/CS/1612/2013. I also abide by the decision as regards the quantum of damages awarded.

Judgment

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the Federal High Court, holden at Lagos, the appellant, by way of Writ of Summons, sought to enforce a contract of affreightment dated March 25, 2002, against the respondents.

By its Amended Statement of Claim, the appellant claimed as follows: Whereupon the plaintiff claims as endorsees the sum of US$650,000 only or its equivalent in Naira with interest at 21% per annum until payment, being damages suffered by the plaintiff by reason of the defendant’s breach of contract of affreightment and/or bailment and by reason of the defendants’ negligence in their care of the plaintiff’s cargo of rice, as well as Admiralty costs and legal expenses.

The matter proceeded to the trial stage. At the trial, the appellant also filed a motion-exparte, for the arrest and detention of the first respondent and same was granted. The respondents, in turn, filed two (2) applications: one for the release of the respondents’ vessel, and the other sought to shift the vessel to anchorage, pending the hearing of the former for release. Both processes were filed on June 15, 2002. The appellant consented to the release of the respondents’ vessel and filed a consent to release on July 26, 2002.

During the course of the proceedings, the respondents filed a motion for stay of proceedings on July 11, 2003, pending reference to arbitration in London. The motion was supported by affidavits. In response, a Counter-affidavit, in opposition to the application, was filed by the appellant.

The trial Court, in its ruling, delivered on August 11, 2004, found in favour of the respondents, granting their application for stay of proceedings and referred the parties to arbitration in London.

Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court below via a Notice of Appeal containing two (2) grounds of appeal.

The lower Court, by its judgment delivered on June 27, 2008, upheld the ruling of the trial Court, and consequently dismissed the appeal.

The appellant being dissatisfied with the judgment of the lower Court, appealed to this Court via a Notice of Appeal. The said Notice of Appeal, at pages 310- 312 of the record of appeal, contains the following three grounds of appeal: GROUND 1 The learned Justices of the Court of Appeal mis-directed themselves when they applied the case of Sonnar (Nig) Ltd v Partenreederi M.S. Norwind Vol. 3 NSC 175 at 192, without correctly testing the facts of this case against the ratio.

GROUND 2 The learned Justices of the Court of Appeal erred in law when they held at page 15 of their judgment that as rightly submitted by respondents’ counsel even if the claim to be submitted before the arbitrator is time barred the same provision i.e. Article 3 Rule 6 of The Hague/Visby Rules reproduced supra relied upon by the appellant allows for extension of time. Appellant is entitled to explore that opportunity. PARTICULARS 1.

In the absence of evidence that time extension pursuant to Article 3 Rule 6 of The Hague/Visby Rules had been granted a claim cannot be validly submitted before the Arbitrator in London. 2. There was no evidence before the Court that an extension of time had been granted. 3. Under Clause 40 of the Charter party dated 7th March, 2002, the claim must have been made in writing and the Claimant’s application for arbitration made within 6 months of redelivery of the vessel. 4. There is a distinction between the submission of the claim and the appointment of the Arbitrator. 5.

The appellant has by this decision been permanently deprived of a remedy in the London Arbitration proceedings because there was no evidence before the Court that Article 3 Rule 6 of The Hague/Visby Rules has been activated by the Respondents to grant time extension to the Appellant. GROUND 3 The learned Justices of the Court of Appeal erred in law when they held at page 19 of their judgment that in the instant case appellant who had the onus to advance compelling reason as to why this Court should interfere with the discretionary power of the trial judge had failed to do so.

PARTICULARS There was un-controverted evidence before the Court that the claim was time barred in London.

RESOLUTION OF THE ISSUE The Supreme Court, like other Courts of the land, is a creation of statute. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction is a nullity, no matter how well- conducted or how sound the decision or orders made therein are, Madukolu v Nkemdilim [1962] 2 SCNLR 341, Bronik Motors Ltd and Anor v Wema Bank Ltd [1983] 1 SCNLR 296, Petrojessica Ent. Ltd v Leventis Tech Co. Ltd [1992] 5 NWLR (pt. 244) 675, Dapianlong v Dariye[2007] 4 SC (pt.

III) 118, Attorney-General, Lagos State v Dosunmu [1989] 3 NWLR (pt. 111) 552, 567, N.C.C v Motophone Ltd [2019] 14 NWLR (pt. 1691) 1, Nzei v University of Nigeria, Nsukka [2017] 6 NWLR (pt. 1561) 300.

By virtue of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court; where the Grounds of Appeal involve questions of law alone. Where the questions involve facts or mixed law and facts, the leave of this Court or the Court of Appeal must first be sought and obtained.

Where leave is required and not obtained, the affected Grounds of Appeal would be incompetent and liable to be struck out, Utoo v A.P.C [2018] 12 NWLR (pt. 1634) 507; Allanah and Ors v Kpolokwu and Ors [2016] LPELR- 40724 (SC); BASF (Nig.) Ltd v Faith Entreprises Ltd. [2010] 1 SC (pt. II) 186, 202 – 203; Nigeria National Supply Co. Ltd v Establishment of Sima of Vaduz [1990] LPELR – 2004 (SC). It follows then that it is only through a competent appeal can the Court’s jurisdiction be invoked.

Admittedly, this Court has held in a plethora of cases that there is difficulty in distinguishing between a ground of law simpliciter and a ground of mixed law and fact, as there is a very thin line of disparity between both, Ogbechie v Onochie (No.1) [1986] 2 NWLR (pt. 23) 484, Nwadike and Ors v Ibekwe and Ors [1987] LPELR-2087 (SC) 42-42 U.B.A Ltd v Stahibau GMBH and Co. [1989] 3 NWLR (pt. 110) 374, 391-392, Ajibade v Pedro [1992] 5 NWLR (pt. 241) 257, Obatoyinbo and Anor v Emmanuel Oshatoba and Anor [1996] LPELR-2156 (SC).

In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edingburgh, etc Tramways (1919) SC (H.L) 35, Currie v Inland Revenue Commissioners (1921) 2 KB 332, Cooper v Stubbs (1925) 2 KB 753, Benmax v Austin Motors Co., Ltd (1955) 1 All ER 326; Edwards (Inspector of Taxes) v Bairstows and Anor (1955) 3 All ER 48. This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article  titled, “Error of Law in Administrative Law,” in Law Quarterly Review, Vol. 100 (October, 1984).

Happily, however, this Court has ingeniously fashioned out guiding principles for navigating through the nuances of characterization of grounds of appeal. They include the following: a. Where the ground of appeal complains of an error involving a misunderstanding or misapplication of the law to prove admitted facts, it is a ground of law; b. A ground of appeal which complains of the lower Court’s exercise of its discretion necessarily involves the appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so is one of facts.

But where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the wrong principle and therefore one of law alone; c.

A ground of appeal which complains of the lower Court’s evaluation of evidence and alleged insufficiency of the evidence, is one of facts or at best mixed law and facts.Where however, the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleged that there is no evidence upon which the lower Court could reach its decision, it is a ground of law. d.

Where the Court is being invited to investigate the existence or otherwise of certain facts upon which judgment was based, such a ground of appeal is a ground of mixed law and fact. e. A ground of appeal which challenges the finding of fact made by the trial or lower Court or involves issues of law and fact can only be argued with the leave of the appellate Court. f. Where the evaluation of facts established by the trial Court or lower Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts. g.

Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact. Enyibros Food Processing Company (Nig) Ltd and Anor v N.D.I.C and Anor [2021] LPELR – 55330 (SC); Standard IBTC Bank v Longterm Global Capital Ltd and Anor [2017] 18 NWLR (pt. 1598) 431; F.B.N Plc v T.S. A Industries Ltd [2010] 15 NWLR (pt. 1216) 247; Maigoro v Garba [1999] 10 NWLR (pt. 624) 555; Motunwase v Sorungbe [1988] 5 NWLR (pt. 92) 90; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531.

I earlier reproduced the three original grounds of appeal. On the face of the grounds in the notice of appeal before this Court, it is apparent that they are mainly based on fact or mixed law and facts, and not of law simpliciter.

A careful examination of ground 1 of the appellant’s grounds of appeal, in the absence of any particulars thereto accompanying it, reveals that the appellant herein is complaining about a misdirection.

Generally, a ground of appeal may be couched in such a way as to incorporate or contain particulars of error, without necessarily setting them out as usual under a separate heading of particulars, Nsirim v Nsirim [1990] 3 NWLR (pt. 138) 285; Global Trans. Oceanico SA v Free Ent (Nig,) Ltd [2001] 5 NWLR (pt. 706) 426. However, Order 8 Rule 2 (2) of the Supreme Court Rules mandates that if the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.

Failure to do comply renders such ground incompetent and liable to be struck out, National Investment Properties Co. Ltd v The Thompson Organisation Ltd and Ors [1969] LPELR – 25547 (SC); MbaNta v Anigbo [1972] 7 SC 57, 63; Nsirim v Nsirim [1990] 21 NSCC (pt. 11) 302; Anadi v Okeli [1977] All NLR 23; Military Administrator, Benue State v Ulegede [2001] 9 -10 SC 180; Adeleke v Asani and Anor [2002] LPELR-115 (SC). Ground 1 constitutes an exception to that general rule. Ground 1 is a novel way of couching grounds of appeal of this nature and it should not be encouraged.

It seems clear from the other grounds of appeal filed that learned counsel for the appellant properly filed other grounds of appeal with their particulars of error properly put in place. Ground 1 is accordingly struck out for non-compliance with the rules.

​ It is also manifest that ground 2 is too blatantly focused on finding of fact. In effect, ground 2 invites this Court to investigate the existence or otherwise of certain facts upon which the judgment of the Court below was based. Such a ground of appeal is a ground of mixed law and fact.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

I have read and re-read ground 3 of the appellant’s grounds of appeal. I must confess that its true purport eludes me. It is, however, my respectful view that, at best, this ground may be classified as one of mixed law and fact. Having now characterized the remaining two grounds of appeal, I am satisfied that, having not being grounds of law alone, they were filed in violation of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In the result, I hold that the remaining two grounds of appeal are incompetent, as the appropriate leave of Court required for their validity, was not obtained. The fatality of the instant appeal is more glaring consequent upon the fact that only one issue for determination was formulated from the three grounds of appeal in the appellant’s brief of argument. It follows then that the Notice of Appeal is incompetent for non-compliance with the rules, Irhabor v Ogaiamien [1999] 8 NWLR (pt. 616) 517, Asogwa v P.D.P [2013] 7 NWLR (pt. 1353) 207, Igwe v Kalu [2002] 5 NWLR (pt. 761) 678.

Courts do not condone illegality no matter who is involved by. This appeal was heard on January 25, 2022. The appellant adopted the Amended Brief of Argument filed on December 7, 2020. The appellant alleged that leave was sought to file a purported Amended Notice of Appeal from which the issue for determination was distilled. There is no evidence before this Court that leave was granted to amend this purported Amended Notice of Appeal.

The said amended Notice of Appeal contains the three grounds of appeal ipssissimaverba with the offensive three grounds of appeal in the original Notice of Appeal. The purported amendment was procured by a fraudulent hoax played on this Court. The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye [2009] LPELR-140 (SC); Atuyeye v Ashamu [1987] 1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra).

Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency. The lesson should be that, in conceiving a suit or an appeal, adequate care should be taken by counsel to ensure that the suit or appeal does not raise any issue of incompetency of the Court. Where counsel is un- surefooted, he or she could apply for leave to do so for abundans cautela non nocet – abundant or sufficient caution does no harm, F.B.N Plc v T.S.A Industries Ltd [2010] 15 NWLR (pt. 126) 247, 292.

In the final analysis, all I have laboured to say above is that this appeal is incompetent and is hereby struck out.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother, CHIMA CENTUS NWEZE JSC just delivered. I agree with and adopt the reasoning and conclusion in the said judgment to strike out the incompetent appeal.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my learned brother, CHIMA CENTUS NWEZE JSC. I completely agree with the reasoning and conclusion that this appeal is incompetent and liable to be struck out.

This is an appeal against the decision of the Court of Appeal, Lagos Division, delivered on the 27th June, 2008 in which the Court below upheld the ruling of the trial Federal High Court and consequently dismissed the appeal. ​ Dissatisfied with the decision of the Court below, the Appellant filed a notice of appeal dated 13th day of August, 2008 containing 3 grounds of appeal urging this Court to set aside the judgment of the Court below.

The facts as found and upheld by both lower Courts are as follows: The Appellant by contract of Affreightment contained in and/or evidenced by Bills of Lading numbered Wos. 148/028, Wos. 148/02, Wos. 348/02, Wos. 448/02, Wos. 448/02C, Wos. 448/02B and Wos. 248/02B dated at Bangkok, Thailand on 25/3/2002, contracted with the Respondents to carry about 280,000 bags of rice from Bangkok, Thailand, to Lagos and Port Harcourt in Nigeria for valuable consideration.

In breach of the contract of Affreightment aforesaid, and/or their duty of care and/or breach of their duty as bailee for reward, the Respondents damaged and lost some of the Appellant’s cargo. The Appellant who was the Plaintiff at the trial Court took out a writ against the Respondents and by his amended statement of claim dated 15/07/2002 claimed the sum of US$500,000 only or its equivalent in Naira with interest at 21% per annum until payment. The Appellant simultaneously, with the issue of the writ of summons, alsofiled a motion ex-parte for the arrest and detention of ‘M.V.

Matrix’, the 1st Respondent herein which was granted on 02/07/02 and the Respondents’ vessel was then arrested by the Court. The Respondents on the other hand filed two (2) applications simultaneously both dated 12/7/02 and filed on 15/07/02. The first application was for the release of the Respondents’ vessel while the second application sought to shift the vessel to anchorage pending the hearing of the application to release her from arrest. The Appellant consented to the release of the vessel and filed a consent to release on 26/07/2002.

By the order of Court granted on 10/06/2002, the Appellant amended its statement of claim. ​ On 11/07/2003, the Respondents filed a motion on notice for stay of proceedings pending reference to arbitration in London. The motion was supported by a main affidavit containing 10 paragraphs and a further and better affidavit also containing 10 paragraphs. The Appellant filed a 16 paragraphs counter-affidavit.

The learned trial Court after considering the submission of counsel in its ruling delivered on 11/08/2004, granted the stay of proceedings pending reference of dispute between the parties to arbitration in London.

Dissatisfied with the ruling of the Court below, the Appellant filed its notice of appeal dated 13/08/2004 containing 2 grounds of appeal urging the Court below to set aside the ruling of the trial Court. The Court below having heard both counsel argue their case and considered all the evidence before them, held that the appeal lacked merit and consequently dismissed the appeal.

Aggrieved by the decision of the Court below, the Appellant appealed to this Court via a Notice of Appeal dated 13th August, 2008 containing 3 grounds of appeal.

In the Appellant’s Brief of Argument, the Appellant formulated a sole issue for determination which was distilled from the three (3) grounds of appeal.

The Respondents also adopted the sole issue formulated by the Appellant, thus: “Whether the Court of Appeal was right in dismissing the appeal of the Appellant and upholding the decision of the Federal High Court staying proceedings in the Appellant’s suit pending reference to Arbitration?”

My Lords, all the grounds of appeal here are grounds of mixed law and facts.

By virtue of theprovisions Section 233 (2) (a) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered); “233. (2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal (3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.” Where the questions are of mixed law and facts, the leave of this Court or the Court of Appeal must first be sought and obtained.

Where leave is required and not obtained, the affected Grounds of Appeal would be incompetent and liable to be struck out. See SPDC (NIG.) LTD. &Ors v. AGBARA &Ors (2019) 6 NWLR Pt. 1668 Pg. 310; Nwaigwe v. Okere (2008) 13 NWLR Pt. 1105 Pg. 445 at 474. In other words, a party desiring to appeal the decision of the Court of Appeal to the Supreme Court on mixed law and facts or facts is required to obtain the leave of the Courtof Appeal or the Supreme Court to file the notice and grounds of appeal. The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal.

Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended as it is liable to be struck out. See A.S. B. Co. (Nig.) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR Pt. 1363 Pg. 501; Popoola v. Adeyemo (1992) 8 NWLR Pt. 257, 1 SC; Abidoye v. Alawode (2001) 13 WRN 71 SC. It is a settled law that the notice of appeal filed without the leave of the Court below or this Court first sought and obtained is so incurably bad that in the eyes of the law, it does not exist. See JEV & Anor  v. Iyortyom & Ors (2014) 14 NWLR Pt. 1428 Pg. 575; Anachebe v.

Ijeoma &Ors. (2014) 14 NWLR Pt. 1426 Pg. 168. One cannot amend what in law does not exist.​ The Appellant without the leave of the Court below or this Court filed its notice of appeal, which invariably does not exist in the eyes of the law. Even though the learned Counsel for the Appellant tried to remedy the situation by purportedly amending the earlier filed notice of appeal, a notice of appeal that is inherently incompetent cannot in any way be amended as rightly put by Denning (MR) in Macfoy v. UAC (1962) 153, “you cannot put something on nothing and expect same to stay there.

It will collapse.” See Co-operative & Commerce Bank Plc & Anor v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493 Onwuzulike v. State (2020) 10 NWLR Pt. 1731 Pg. 91. That being the case, I hold that the purported amended notice of appeal was an exercise in futility, and could not have “breathed life” into the fundamentally defective original notice of appeal.

This appeal is incompetent and it is also struck out by me.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, NWEZE, JSC granted me the privilege of reading in draft the elaborate leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add. I also endorse all consequential orders.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, CHIMA CENTUS NWEZE, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Judgment

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): At the trial Federal High Court the appellant, as plaintiff in suit number FHC/L/CS/922/2002, by its amended statement of claim filed on the 8th of October 2003, claimed against the defendants, the respondents herein, jointly and severally for the damage to its vessel “M.P. OSTANKINO” and the attendant loss and expenses by reason of the collIsion with the respondents’ ship M.T, “BATA I” which occurred off-shore Lagos on the 3rd and 4th of August 2002 as a result of the negligence of the defendants, their servants or agents.

In paragraph 1 of its amended statement of claim, the appellant avers the status that entitles it to the grant of the claim by the trial Court thus:- “1. The plaintiffs at all times material to this action are the owners of the M.T. “OSTANKINO” and are a LIMITED LIABILITY company registered in Cyprus”. (Underlining mine for emphasis).

In responding to the foregoing paragraph of the appellant’s amended statement of claim the respondents, in paragraphs 1 and 2 of their amended-statement of defence/counter-claim filed on the 17 th December 2003, aver thus:- “1. SAVE AND EXCEPT as hereinafter specifically admitted the Defendants deny each and every allegation of fact contained in the plaintiffs statement of claim as if each were herein set out and traversed seriatim. 2.

The Defendants are not in a position to either accept or deny paragraph 1 of the statement of claim, the Plaintiff is therefore under a duty to the proof of same strictly.” (Underlining mine for emphasis).

Appellant’s amended reply to respondents’ amended statement of defence/counter-claim dated and filed on 7th October 2007 is silent on the challenge contained specifically in paragraph 2 of the respondents’ amended statement of defence/counter-claim on its legal personality. ]The appellant called a single witness to prove its case through whom eleven Exhibits, DI - DII, none of which is its certificate of incorporation, were tendered.

At the end of trial, Omolojobi J upheld respondents contention, proffered in final addresses of counsel, challenging the juristic personality of the appellant and struck out the suit. ​ Following the dismissal of his appeal at the Court of Appeal, the appellant has appealed to this Court against the concurrent findings of the two lower Courts vide his notice filed on the 17th day of January 2011 containing three grounds.

Parties have filed and exchanged briefs which at the hearing of the appeal, were adopted and relied upon as their respective arguments.

The two issues distilled at paragraph 5.01 of the appellant’s brief of argument as arising for and which will inform the determination of the appeal read:- (1) Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant that the appellant had no legal capacity or locus standi to institute the action against the respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties. (2) Whether the Court of Appeal was right in law in refusing and/or failing to consider the other two issues (1 & 3) submitted for determination by the Appellant which arose from the grounds raised in the Appellant’s Notice dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

On the 1st issue, learned appellants counsel submits that the lower Court is wrong in its finding that appellant’s failure to produce its certificate of incorporation at the trial Court has robbed it the legal capacity to institute the action ab initio. At no time, it is argued, did parties join issue in their pleadings on the legal capacity of the appellant to institute the action. The lower Court, submits learned appellant’s counsel, wrongly applied the principle enunciated in NDUKA V. EZENWAKU (2001) 6 NWLR (PT 709) 517 and HOUSE OF REPRESENTATIVES V.

SPDC (2010) 11 NWLR (PT 1205) 213 at 251 since the legal capacity of the appellant had not been put in issue by the parties. Were it otherwise, the respondents, it is further submitted; would not have counter-claimed against the very appellant they contend lacks the legal capacity to defend the counter-claim. Relying on CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS V. EKPO (2008) 6 NWLR (PT 1083) 362 at 392, HOUSE OF REPRESENTATIVES V. SPDC (supra) and G & T INVESTMENT LTD V.

WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500 at 540,learned appellant’s counsel contends that in the absence of a proper traverse by the respondents to paragraph I of appellant’s amended statement of claim, the issue of appellant’s juristic personality cannot be said to have been put in issue purely on the basis of respondents counsel’s belated submission in their final address at the trial Court. Further relying on ASAFA FOODS FACTORY V.

ALRAINE (NIG) LTD (2002) 12 NWLR (PT 781) 353, learned counsel concludes that respondents general traverse being the only basis of their challenge to the competence of appellant’s suit is unavailing. He urges that it be so-held and the issue resolved against the respondents. ​ On their first issue, which is similar to appellant’s first, learned respondents’ counsel submits that appellant’s silence in its amended reply, given paragraphs 1 and 2 of the respondents response to paragraph 1 of the appellant’s amended statement of claim, is fatal.

The respondents in the two paragraphs of their amended statement of defence and counter-claim, it is asserted, unequivocally put the legal personality of the appellant in issue.

While by the first paragraph in their amended statementof defence/counter-claim the respondents may be said to have made a general traverse to the averment in paragraph 1 of the appellant’s statement of claim, by the further averment in paragraph 2 of their amended statement of defence/counter-claim, it is contended, the traverse ceases to be a general one the latter paragraph having made it very specific whether or not a traverse is general or specific, it is argued, depends on the totality of a party’s pleadings.

It is never the practice to isolate a particular paragraph in a party’s pleading and adjudge, by its token alone, that, the party’s pleading has been generally rather than specifically traversed.

​Paragraph 1 in the respondents’ amended statement of defence/counter-claim must be viewed in the light of the other paragraphs in their pleading in correctly deciphering to be made as the issue/issues the parties had gone to trial upon. In any event, it is further contended, the appellant who claims to be an unnatural legal person is required by law to establish that fact and having failed to, both Courts are right to have struck out the claim. The two Courts, learned respondents’ counsel submits, rightly relied inter-alia on NDUKA V. EZENWAKU (supra), HOUSE OF REPRESENTATIVES V.

SPDC (supra) and MAGBAGBEOLA V. SANNI (supra) in affirming the trial Court’s finding that the appellant having failed to establish its legal personality by proffering the certificate of its incorporation, lacks the locus standi to sustain its claim against the respondents. Further referring to ASAFA FOODS FACTORY V. ALRAINE (supra), OSOLU V. OSOLU (2003) 11 NWLR (PT.832) 609 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH ILESHA AREA V.

ATTORNEY GENERAL OF MID-WESTERN NIGERIA (1972) 4 SC 150 at 158 at 159, learned respondents’ counsel urges that the issue be resolved against the appellant. ​ Now, in striking out appellant’s suit, the trial Court at page 204 of the record held as follow:- “To my mind, the aforestated averment contained in paragraph 2 of the statement of defence is enough to put the plaintiff’s counsel on notice that the Corporate existence of the Plaintiff which he described as a limited liability company registered in Cyprus has been called to question by the defendant’s counsel.

He could not have averred more than he did because, the fact that thePlaintiff is a limited liability company is solely within the knowledge of the Plaintiff and probably, its counsel as far as this action is concerned. Therefore, the burden of proving same rests on them.”

The trial judge concluded at page 206 of the record of appeal thus:- “In the instant case, when the Plaintiff is described as a limited liability company and there is nothing before this Court to support that averment in the Plaintiff’s Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction. And such, the Plaintiff is not competent to institute this action. I so hold.”

In dismissing appellant’s appeal and affirming the trial Court’s foregoing findings, the lower Court held firstly as follows:- “The above pleading showed that Respondents joined issue with the Appellant on its legal capacity to maintain an action. The respondents denied the fact that the appellant is a limited liability company. The burden therefore shifts on the appellant to prove it is a limited liability so as to show its legal capacity to sue………” The Court further surmised as follows:- “In the instant case appellant is a foreign company.

Despite adding the word limited to Ostankino Shipping Co. it would not satisfy the requirement of evidence of incorporation. In absence of evidence of incorporation l hold that appellant is incompetent to institute any action at the lower Court. It is only proper juristic person who can sue or be sued. Defect in competence is very fatal to a suit.” (Underlining mine for emphasis).

The Court concluded at page 308 of the record as follows: “In view of the fact that the Court was not properly clothed with jurisdiction to entertain the action abinitio on ground of lack of locus standi, I will invoke S. 15 of the Court of Appeal, Act and order that the suit No. FAC/CS/922/2002 filed by the appellant before the lower Court be and is hereby struck out.” (Underlining mine for emphasis).

This appeal questions the correctness of the foregoing concurrent findings of the two Courts below striking out the suit following the appellant/plaintiff’s failure to prove its right to sue in the first place. It has not been the practice of this Court to interfere with such findings except where the appellant succeeds in establishing that they neither evolved from the evidence on record nor consequent upon correct application of principles. See SERBER V. KARIKARI (1939) 5 WACA 34 and OKAFOR V. ABUMOFUANI (20160 LPELR – 40299 (SC).

It is not being contested by the appellant that 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. As a general rule only a natural person, a human being, or an artificial person, a body corporate, which the appellant avers to be in paragraph one of its amended statement of claim, are competent to sue or be sued. The law further confers on some non-legal entities the personality to sue or defend an action.

Thus, where either the plaintiff or the defendant is not a legal person, the action is liable to be struck out. See ATAGUBA & CO. V. GURA NIGERIA LIMITED (2005) LPELR-584 (SC), MAERSK LUNE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR – 1811 (SC). In THE ADMIN & EXEC OF ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152(SC) this Court restated the principle thus:- “The law is also trite that a non-existing person, natural or legal personality, cannot institute an action. Nor will an action be allowed to be maintained against a Defendant who as sued, is not a legal person.”

It is also trite that the juristic personality of a body corporate is evidenced only by tendering the certificate of incorporation of the company. See BANK OF BARODA V. IYALABANI COMPANY LTD (2002) LPELR – 743 (SC), AFOLABI & ORS V. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC), REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. In J.K. RANDLE V. KWARA BREWERIES LTD (1986) 456 SC 1. Uwais JSC (as he then was later CJN) in his concurring contribution appositely stated thus:- “The appellant sued the respondent as a company incorporated under the Company Act 1968.

He failed to prove the incorporation by the production of the certificate of incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence, the failure to prove the incorporation was fatal to the appellant’s case.” (Underlining mine for emphasis).

In the case at hand the appellant in paragraph one of its amended statement of claim avers being a “LIMITED LIABILITY Company in Cyprus”. The respondents denied the averment and further assert in their amended statement of defence/counter-claim that being “not in position to either accept or deny paragraph 1 of the statement of claim, the plaintiff is therefore under duty to be proof of same strictly”.

It is strenuously argued by learned appellant’s counsel that appellant’s incorporation not having been categorically denied by the respondents its juristic personality has not been put in issue by parties to warrant its proof. Learned respondents’ counsel contends to the contrary.

I entirely agree with learned counsel to the respondents that learned appellant counsel’s insistence that the averment in paragraph two of the respondents amended statement of a defence/counter-claim is a general denial stems from his reading of the paragraph in isolation rather than by reference to the other averments in the party’s pleading. It is an age old rule of practice that to determine a party’s case resort must be made tothe entire averments in-the party’s pleadings. Considering a few paragraphs of the pleading in isolation militates against a complete flow of the party’s story.

See AGI V. P.D.P. & ORS (2016) LPELR 42578 (SC) and ATTORNEY GENERAL OF ANAMBRA STATE V. C. N. ONUSELOGU ENTERPRISES (1987) LPELR – 614 (SC).

A comprehensive examination of the respondents’ amended statement of defence/counter-claim reveals very clearly that parties herein have joined issue on the juristic personality of the appellant thereby making proof of same by the appellant necessary.

It is reasonably settled that a defendants resort to a general traverse in the statement of defence in a manner that casts the burden of proving a denied averment on the plaintiff is a convenient and permissible procedure in defining the case on the defendants which parties are to proceed to trial. Doing so constitute specific traverse of the facts averred to by the plaintiff.

By asking the appellant to prove the fact of its incorporation, the respondents who are in no position of knowing the fact of appellants incorporation have effectively traversed appellants assertion of being a corporate body. See UMESIE V. ONUAGULUCHI (1995)LPELR – 3368 (SC), MANDILAS & KARABERIS LTD V. LAMIDI APENA (1969) LPELR 25559 (SC), AKINTOLA & ANOR V. SOLANO (1986) LPELR – 360 (SC) and DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE (2017) LPELR -42573 (SC)

Learned appellant’s counsel seems to suggest that having failed to join issue in their amended statement defence/counter-claim with the appellant on the latter’s juristic personality, the respondents have completely compromised their right to challenge the trial Court’s jurisdiction. Learned counsel appears oblivious of the dichotomy in the Court’s procedural and substantive jurisdiction. Simply put, the one is circumscribed by Court rules while the other is as statutorily delineated.

While it is settled that the right to challenge a Court’s procedural jurisdiction may be waived by a party, it is trite that neither the Court nor the parties before it can confer on the Court a jurisdiction it statutorily lacks. See DR. MUSA NAGOGO V. C.P.C. & ORS (2012) LPELR – 15521 (SC), AG KWARA STATE V. ADEYEMO & ORS (2016) LPELR – 41147 (SC) and IKECHUKWU V. F.R.N. & ORS (2015) LPELR – 2445 (SC). In MOBIL PRODUCING (NIG) UNLIMITED V.

LASEPA & ORS(2002) LPELR -1887(SC) this Court in dwelling on the two types of the Court’s jurisdiction inter-alia enthused as follows:- “Notwithstanding that, sometimes, the distinction between substance and procedure is blurred, it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters in controversy or litigated before it are matters of procedure regulated by procedural Law.

Facts which constitute a cause of action are matters of substance and should be pleaded, whereas facts which relate to how a party is to invoke the jurisdiction of the Court a remedy pursuant to his cause of action is a matter of procedure outside the realm of pleadings……….. ‘generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode or machinery by which the right is enforced'” See also HUSSAIN ISA ZAKIRAI V. SALISU DAN’AZUMI MUHAMMAD & ORS (2017) LPELR – 42349 (SC).

In applying the foregoing principles to the facts of the instant case, it is evident that beyond respondents’ objection to the trial Court’s jurisdiction as raised in parties’ pleadings, which is procedural, the further objection raised in learned respondents counsel’s address at the close of the case pertains the Court’s substantive jurisdiction as statutorily circumscribed. By Section 6 (1) and (6)(b), the trial Court is only competent to adjudicate between juristic persons.

In the instant case, appellant’s juristic personality as raised challenges both the Court’s procedural and substantive jurisdictions. It is therefore manifestly unwise for learned appellant’s counsel to insist that the overriding issue can be discountenanced by the Court as the challenge to its jurisdiction only rests on non joinder of issue.

Furthermore, by Sections 131 – 137 of the Evidence Act, the appellant must bear the burden of that which it asserts. See PATRICK ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR – 3544 (SC) and CHIEF EYO EDEM NSEFIK & ORS V. ROSEMARY MUNA & ORS (2013) LPELR – 21862 (SC).

Thus whether respondents objection to the trial Court’s competence is on account of either the state of pleadings of parties, the burden of proving those facts it asserts or, still, pursuant to Section 6(1) and (6) (b) of the 1999 Constitution (as amended) which provides for parties to any dispute the trial Court is competent to enquire into and determine, appellant’s failure to tender its certificate of incorporation in proof of its juristic personality, as rightly held by both Courts below, is fatal.

Appellant’s first issue is resultantly resolved in favour of the respondents.

It is academic to consider appellant’s second issue for the lower Court’s non consideration of appellant’s issue would only have become relevant if the trial Court which decision was to review, had the jurisdiction to determine appellant’s suit in the first place. It did not. The lower Court also lacked the jurisdiction to consider and determine any issue arising from the trial Court’s judgment arrived at without jurisdiction. I so hold.

​As a whole, the concurrent judgments of the two Courts below are hereby further affirmed. Parties are to bear their respective costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit. It, therefore, deserves to be dismissed.

It is, indeed, surprising how counsel for the appellant underrated the formidable submission of the respondents’ counsel on the question of the legal capacity of his client. I had always, believed that, following the outcome of a long line of cases, our Courts should not no longer be burdened with this question.

Such cases include Olu of Warri v Chief Sam Warri Esi (1958) 3 FSC 94; Agbonmagbe Bank Ltd v. G. B. Ollivant Ltd and Anor (1961) ANLR 125; Ataguba and Co v. Gura Nigeria Ltd(2005) LPELR – 584 SC); Maersk Line and Anor v. Addide Investments Ltd and Anor (2002) LPELR – 1811 (SC); The Administrator and Executor of the Estate of Abacha v. Eke – Spiff and Ors (2009) LPELR – 3152 (SC) and so on.

True, indeed, I, always, entertained the view that every lawyer should know that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions, Reptico S. A. Geneva v. AfriBank Nig Plc (2013) LPELR – 20662 (SC); Attorney General of Federation v. All Nigeria Peoples Party and Ors [2003] 12 SCM 1, 12; [2003] 18 NWLR (pt. 851) 182; [2003] 12 SC (pt. 11) 146.

They are, therefore, known to law as legal persons, Alhaji Afia Trading and Transport Company Ltd v Veritas Insurance Company Ltd 4 NWLR (pt. 38) 802. The consequence of the above formulation is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality can prosecute or defend law suits by that name, Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. SanniAbachav Eke-Spiff and Ors (2009) 3 SCM 1; [2009] NWLR (pt. 1139) 92; Bank of Baroda v. lyaiabani Coy Ltd [2002] 12 SCM 7; J. K.

Randle v. Kwara Breweries Ltd [1986] 6 SC 1.

​From a conspectus of a host of Supreme Court decisions, we are emboldened in our view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiffs, is by the production in evidence of the certificate of incorporation issued by the Corporate Affairs Commission [CAC], Reptico S. A. Geneva v. AfriBank Nig Plc (supra); ACB Nig Plc and Anor v. Emostrade Ltd {2002) LPELR – 207 (SC).

Thus, where a group of persons claim to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their certificate of incorporation, as nothing else would suffice, ACB Nig PLC v. Emostrade Ltd (supra). In effect, for Incorporated Trustees to establish their juristic personality, except if it is admitted by the opposing party, they must tender their certificate of incorporation under Part C of CAMA.

It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v. lyalabani Company Limited, [2002] 12 SCM 7. ​Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the certificate of incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic Church v. AG Mid-West (supra); Geneva v. AfriBank (supra); J. K. Randle v. Kwara Breweries Ltd [1986] 6 SC 1.

The provisions of Section 2 Subsections (1) and (3) of the Land (Perpetual Succession) Act [now defunct], in parimateria with Section 673 (1); (2) and Section 679 (1) of the Companies and Allied Matters Act, 1990 [CAMA, for short], fell for construction in Registered Trustees, Apostolic Church v. Attorney General, Mid-Western State and Ors [1972] ANLR (Reprint) 359. Sowemimo JSC (as he then was), reading the judgement of the apex Court, held that: Although evidence was led as to named persons being made trustees, the certificate of incorporation was never produced.

It is therefore clear that unless the plaintiffs could comply with Section 6 of the Act [see, now Section 679 (3) of CAMA], they have no power to sue or be liable to being sued… In view of the above provisions of the Act, the plaintiff having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue…In the circumstances, the plaintiffs/appellants’ claim must fail… [Italics for emphasis]

​In all, the burden of proving their status as Incorporated Trustees, therefore, lies on the persons who made such positive assertion about their incorporated status, Section 135 of the Evidence Act [then applicable to the proceedings]; Elias v Omo Bare [1982] 5 SC 2; Elias v. Disu (1962) 1 All NLR 214; Woluchem v. Gudi [1981] 5 SC 291; Agala and Ors v. Egwere and Ors [2010] 5 SCM 22, 37.

It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the said leading judgement. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now, a draft of the erudite judgment of the majority of the full Court just delivered by my learned Brother HON. JUSTICE MUSA DATTIJO MUHAMMAD JSC. I agree with the reasoning and conclusions contained therein.

This appeal is based on the concurrent findings of facts by the High Court and the Court of Appeal that the Appellant is not a juristic person and therefore lacks the capacity to institute this suit. ​ The issues raised by both sides to this appeal are settled, and I am persuaded after reading the record and the Briefs of Counsel that these issues distilled are clear and sufficient to be used to determine the Appeal, they are: – ISSUE 1 Whether the Court of Appeal was right in holding that the Appellant had no legal capacity or locus standi to institute the action against the Respondents.

ISSUE 2 Whether the Court of Appeal is bound to consider all issued in controversy before it before giving its Judgment.

OPINION ISSUE 1 The crux of the first issue is whether the Appellant has legal capacity, that is, whether it has a juristic personality separate from its owners. A perusal of all pleadings filed from the origin of this suit would show that the Appellant was at all times material to this action was referred to as “The Owners of M. T. OSATANKINO” a limited liability company registered in Cyprus. The Appellant in paragraph 1 of its amended statement of claim stated:- “The plaintiffs at all times material to this action are the owners of the “M.

T OSTANKINO” and are a limited company registered in Cyprus”

The Respondents in their amended statement of defense responded thus: “The defendants are not in a position to either acceptor deny Paragraph 1 of the statement of claim, the plaintiff is therefore under a duty to proof (sic) same strictly”

Therefore, the Respondents joined issue with the Appellant by the pleadings, thus, shifting the burden to the Appellant to prove that it is a limited liability company capable of being sued and to sue in its own name. The Appellant erroneously contended that the relevant issue was its claim against the Respondent and not its legal personality. The trial Court held that the onus had shifted to the Appellant to prove its corporate existence.

The Companies and Allied Matters Act, 2019 in Section 78. (1) provide thus: Subject to Sections 80 – 83 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.

Therefore, the ascertainment of the corporate identity of the Appellant is indeed relevant to the success of its claim.

In Nduka v. Ezenwaku (2001) 6 NWLR Pt. 709 Pg. 494 at Pg. 517 the Court of Appeal held that the only way to prove the existence of a company when such is challenged, is the production of the Certificate of Incorporation of the company.

Similarly, Section 41(6) of The Companies and Allied Matters Act, 2019 reads: – 41(6) Certificate of incorporation shall be prima facie evidence that all the requirements of this Act in respect of registration and matters precedent and incidental to it have been complied with and that the association is a company authorized to be registered and duly registered under this Act.

The irrefutable position of the law is that upon incorporation, a company becomes a body corporate i.e. it acquires a separate legal personality with autonomous identity, it can sue and be sued in its own name, own and dispose of property and enter into contracts etc. See Marina Nominees v. F.B.I.R. (1986) 2 NWLR Pt. 20 Pg. 48; Afolabi v. Western Steel (2012) 7 SCNJ 48 at Pg.68. The age-long general rule of corporate legal personality was laid down in the locus classicus case of Salomon v. Salomon (1897) AC 22.

See also The Registered Trustees of Master’s Vessel Ministries Nigeria Incorporated v. Rev. Francis Emenike & Ors (2017) LPELR-42836(CA).

A lawsuit is in essence, the determination of legal rights and obligations of the parties in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to the suit before the Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise these facts as a preliminary objection.

In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by common law, either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. See EMCO & Partners Ltd & Ors v. Dorbeen (Nig) Ltd & Anor (2017) LPELR-43453(CA)

By the pleadings of the parties, it is glaring that the issue of the legal personality of the Appellant was an issue for determination between the parties as it goes to the foundation of the suit and the jurisdiction of the Court to determine same. The Appellant had enough time from when the litigation started up till the appeal to have settled this issue by substituting another party but it failed and refused to do so.

Therefore, based on the pleadings of both parties and the evidence led at the trial as well as the concurrent findings of the lower Court, I hold that the Appellant had no legal capacity to institute the action against the Respondents thereby making the suit and any subsequent appeal incompetent.

ISSUE 2 On the second issue for determination, the Court of Appeal was wrong in its refusal to determine all the issues in controversy. The lower Court in its judgment dismissed the case of the Appellant in its entirety and held as follows at Pg. 242 of the Record of this appeal: “…bearing the aforesaid in mind, I am to state that it is a condition precedent to the exercise of jurisdiction that a competent party is before the Court.

In this instant case, where the Plaintiffs Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction to institute this action and I so hold. In conclusion therefore I found as follows: – 1. That the 4th defendant M.T Bata 1 was not negligent in the manner in which she was brought out of the side of the Plaintiffs vessel M. T Ostankino on the 3rd and 4th of August 2003 2. That the defendants are not liable for the various claims put by the Plaintiff 3.

There is no evidence before this Court to prove that the plaintiff who is described as a limited Liability company in the Statement of Claim is in fact a limited liability company. And as such it cannot be regarded as a juristic person capable of instituting this action”

​A penultimate Court should determine all issues in controversy before it, as it does not enjoy the luxury of a final Court which may not go further after the issue of jurisdiction is resolved. Section 22 of the Supreme Court Act 2011 Cap 424 provides that the Apex Court has very wide powers in respect of matters brought before it.

It may make an interim order or grant an injunction which the Court below is authorized to make or grant and may direct any necessary enquires or account to be made or taken and generally shall have full jurisdiction over the whole proceeding as if the proceeding had been instituted and prosecuted in the Supreme Court as a Court of first instance and rehear the case in whole or in part. Hence, by this Section, this Court may make an order for determining the real question in controversy in the appeal. See also, Section 137(1) of the Evidence Act. Similarly, in Vincent Egharevba v.

Osagie (2009) 12 SCNJ Pg. 166 at Pg. 188 SC this Court held thus; “This Court has said it over and over again that any issue properly raised and canvassed before a trial Court or an appellate Court must be given a fair-hearing and considered. This is so in order to avoid a miscarriage of justice, See Ugbodume v. Abiegbe (1991) 8 NWLR (pt.209) 274… The Respondent’s claim could not be left hanging in the air. The Court of Appeal ought to have madeconsequential orders granting him any reliefs which it considered were supported by the evidence before the trial Court.

It would appear that the Court of Appeal did not give enough consideration to the issues before it in its rather hasty and sketchy judgment.”

Therefore, issue two is resolved in favour of the Appellant. However, in the circumstances of the facts of the case where there has been no miscarriage of justice occasioned against the Appellant, I hold that the decision of the Lower Court should not be reversed. It is not every error in the judgment of a Court that leads to the setting aside of the judgment. The error must be so perverse and has caused gross miscarriage of justice. See P. C Mike Eze v. Spring Bank Plc(2011) 12 SCNJ Pg. III; Abiodun v. F.R.N (2018) 11 NWLR Pt. 1629 Pg. 86 SC; Mohammed v.

State (2018) 13 NWLR Pt. 1635 Pg. 60 SC.

Even though it was wrong of the Lower Court to consider the case on the merit, in view of the resolution of issue 1, no miscarriage of justice has been occasioned.

​I am of the humble view that this appeal has no merit and thus the reliefs urging the Court to nullify the orders of the lower Court is hereby denied and the appeal is dismissed. Appeal Dismissed. I abide by the order as to cost.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment just delivered by My Learned Brother MUSA DATTIJO MUHAMMAD, JSC. I agree with his reasoning and conclusions contained therein.

This is an appeal against the judgment of the Court of Appeal, holden at Lagos (hereafter called the Court below), delivered on the 12th of January, 2011.

The Appellant, as Plaintiff at the Federal High Court, sitting in Lagos, instituted an admiralty action in rem, against the Respondents, claiming damages for loss suffered as a result of “collision” with the 4th Respondent’s ship which occurred at Offshore Lagos Nigeria, on 3rd and 4th August 2002. The Trial Court in its judgment held that the Appellant failed to prove that it was a juristic person, thereby lacking the locus standi to institute the action. The Appellant’s suit was dismissed. ​ Being aggrieved by the decision of the Trial Court, the Appellant appealed to the Court below.

The Court below in its judgment, affirmed the decision of the Trial Court and held that the Trial Court lacked the jurisdiction to adjudicate over the suit, due to the Appellant’s lack of locus standi.

Still aggrieved by the judgment of the Court below, the Appellant appealed to this Court. Its Notice of Appeal filed on the 17th of January, 2011 is upon two grounds, wherein it formulated two issues for this Court’s consideration. They are: 1.

Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant, the Appellant had no legal capacity or locus standi to institute the action against the Respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties? 2.

Whether the Court of Appeal was right in refusing and/or failing to consider the other two issues (1 and 3) submitted for determination by the Appellant, which arose from the grounds raised in the Appellant’s Notice of Appeal dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

​The Respondents also distilled two issues for determination, namely: 1. Whether or not the Court of Appeal was right in holding that the failure of the Appellant to prove its legal personality amounts to lack of locus standi to institute the action thereby denying the trial Court the jurisdiction to entertain the suit? 2. Whether or not a Court which lacks jurisdiction to entertain a suit due to a party’s lack of locus standi can determine the merits of the suit?

My Learned Brother has brilliantly dealt with the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine in answer to the question of whether or not the Appellant is a juristic personality capable of suing and being sued. In other words, does the Appellant possess the requisite locus standi to sue the Respondents?

The Appellant herein has argued that the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties. With respect to learned Senior Counsel for the Appellant, this is not a true representation of the record before this Court.

At Paragraph 1 of its Amended Statement of Claim, the Appellantaverred as follows: “The Plaintiffs at all times material to this action are the owners of the “M.T. OSTANKINO ” and are a limited company registered in Cyprus”

The Respondents denied the averment and asserted at Paragraph 2 of their Amended Statement of Defence/Counter Claim that: “The Defendants are not in a position to either accept or deny Paragraph 1 of the Statement of Claim, the Plaintiff is therefore under a duty to prove same strictly.”

To my mind, by asking the Appellant to prove strictly the fact of its incorporation, the Respondents who are in no position of knowing whether or not the Appellant is incorporated, have effectively traversed the Appellant’s assertion of being a corporate body and issues having been thus joined on the legal personality of the Appellant, it was incumbent upon the Appellant to prove its legal personality, by producing a Certificate of Incorporation. In Dairo & Ors v.

The Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR 42573 (SC), this Court held that: “The law is trite that the plaintiff who takes out on action must be competent to institute such on action. Whenever hiscompetency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action. The competency to institute an action also determines the competency of the action itself …… Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue.

The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the plaintiff. The burden of proof is discharged upon the production of the Certificate of Incorporation. This is a matter of fact.” In the extant appeal, the Appellant’s failure to tender its Certificate of Incorporation in proof of its juristic personality is fatal to its case.

The consequence is that the juristic personality of the Appellant to sue and be sued is not established and the two Courts below were right to hold that the Appellant had no legal capacity or locus standi to institute the action against the Respondents. ​ It is on account of this, and the more elaborate reasons contained in the lead Judgment of My Learned Brother, MUSA DATTIJO MUHAMMAD, JSC that I hold that this appeal is devoid of merit and

I accordingly dismiss it.

I also abide by the consequential orders in the Lead Judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother MUSA DATTIJO MUHAMMAD, JSC granted me the privilege of reading in draft the comprehensive leading Judgment prepared and rendered in this appeal. My lord fully and sufficiently dealt the issue in contention, I am therefore in full agreement with the reasoning and conclusion and adopt the Judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.

Judgment

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): By the Motion on Notice dated and filed on the 19th April, 2006, before the Lagos Division of the Court of Appeal, (Court below), the Appellant prayed for:- “a) An order granting the Appellant herein extension of time within which to apply for leave to appeal against the ruling of the Federal High Court, Lagos per Honourable Justice E. O.

Sanyaolu dated 7/4/2003 Suit No: FHC/L/CS/293/98. b) An order granting leave to the Applicant herein to appeal against the said ruling dated 7/4/03 in the said suits and for leave to appeal on grounds of facts and/or mixed law and facts. c) An order for extension of time within which to appeal against the ruling aforesaid and for such order or further orders as this Honourable Court may deem fit to make in the circumstances. Dated this 19th day of April, 2006.”

The motion was supported by a 19 paragraphs Affidavit deposed to by a Legal Practitioner in the Chamber or Appellant’s Counsel to which were annexed, copies of documents marked as exhibits.

On the 20th November, 2009, the motion was moved by learned Counsel for the Appellant; Mr. Ferdinand Egede, who also deposed to the Affidavit in support thereof and urged the Court below to grant same while Mrs. Hope Nwambe, counsel for the Respondent did not file a Court-Affidavit in reaction to the affidavit in support of the motion but only opposed the request for an adjournment.

The Court below rendered the following ruling, thereafter:- “The application dated 19th April, 2006 and filed on the same day seeks the trinity prayers for extension of time, for leave to appeal and extension of time within which to appeal against the ruling of the Federal High Court, Lagos State delivered on the 7th April, 2003 in suit no. FHC/L/SC/293/98. Same is supported by an affidavit of nineteen paragraphs deposed to by Egede Fedinard, the learned counsel for the applicant who relied on all.

For the application of this nature to earn the favour of the Court, the applicant must satisfy two conditions as restated in Order 3 Rule 4(2) of the Rule of this Court. In other words, it is incumbent on the applicant to satisfactorily explain good and substantial reasons why he failed to appeal within time.

Secondly that the grounds ofappeal must be substantial and arguable and same requirement which must co-exist conjunctively with relevance to the affidavit in support, the applicant counsel relied on paragraphs 8 – 15 of same and urged specifically that the error to come within time is that of counsel. Specifically, paragraph 13 accuses the former counsel Mr. Ubong – Abasi Iyang who was said to have left chamber in June last year and was therefore responsible for the failure to have filed the notice within time.

It is interesting to note that by the use of the phrase June last year, is not enough and specific a time when the said counsel left the chambers. The learned counsel, Mr. Egede has also admitted before us that the accusation lodged against Mr. Ubong – Abasi Iyang was not brought to his notice. Casting aspersions on a counsel’s integrity is very serious matter which needed to have been drawn to his attention. The failure to do so is a serious defect on the application.

Furthermore and even in the absence of any counter-affidavit, the requirement placed upon the applicant is a burden which he ought to discharge. He cannot rely on the weakness of the respondent to prove his case. At any rate, the facts of the affidavit as deposed to are those within the knowledge of the applicant and to which the respondent is not obliged to respond to. The applicant on the totality of his application has not explained his failure to file his notice of appeal three years after the ruling was delivered.

The 1st condition having not explained, it is unnecessary to dwell into the 2nd relating to the grounds of appeal. The satisfaction of the second is dependent upon the 1st. On the totality, the application lack merit and same is accordingly refused and dismissed. Costs of N2,500.00 to the respondent.”

Against the ruling, the Appellant brought this appeal vide the undated Notice of Appeal which appears at page 28 – 31 of the Record of Appeal, (without particulars):- “GROUND 1 The learned Justice of the Court of Appeal erred in law in dismissing the Appellant’s Motion on Notice dated 19th April, 2006 for, inter alia, an order for extension of time within which to appeal against the ruling of the Federal High Court, Lagos dated 07/04/2003 on the grounds that “the Applicant on the totality of his application has not explained his failure to file his Notice of Appeal three years after the ruling was delivered.

GROUND 2 The learned Justices of the Court of Appeal misdirected themselves in law when they held at page of their ruling that; “Casting aspersions on a counsel’s integrity is a very serious matter which needed to have been drawn to his attention. The failure to do so is a serious defect on the application. GROUND 3 The learned Justice of the Court of Appeal erred in law in refusing Appellant’s learned Counsel’s application for adjournment to enable him put the Counsel referred to, in the supporting affidavit, Mr.

Obong-Abasi Inyang, on notice as was being insisted upon by the learned Justices on the ground that the said application for adjournment was belated. GROUND 4 The learned Justices of the Court of Appeal erred in law when they ignored the overwhelming affidavit evidence of inadvertence of Counsel and proceeded to refuse the Applicant’s application thereby visiting the sin or inadvertence of counsel on the litigant.”

In line with the rules of the Court, learned counsel for the parties filed briefs of argument for theprosecution of the appeal as follows:- 1. Appellant’s brief filed on the 3rd February, 2010 and 2. Respondent’s brief filed on the 6th April, 2010.

Four (4) issues, in the tenor of the grounds of appeal, were set out at paragraph 3.1 on page 5 of the Appellant brief, while at page 10 of the Respondents’ brief, it said that, the Appellant’s issues raise a sole question challenging the exercise of the discretionary power of the Court below.

Now, the right of appeal against the decisions of the Court below to this Court is donated and vested in a party or person/s having interest, as the case may be, in a matter who is dissatisfied with them, by the extant 1999 Constitution. (as altered).

Section 233 (1) of the Constitution vests exclusive jurisdiction in this Court to hear and determine appeals from the Court below.

Then in Subsections (2) and (3), Section 233 provides that:- “233 (2) An appeal shall lie from decisions the Court of Appeal to the Supreme Court as of right in the following cases: (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

(b) decisions in any civil or criminal proceedings on questions as to the interpretation of application of this Constitution. (c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person. (d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court;

(3) Subject of the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.” Relevant to this appeal are the provisions or Subsection (2) (a) which prescribe that an appeal shall lie from the decisions of the Court below to this Court as of a matter of right on the part of an Appellant or a party who desires to appeal against same, where the ground/s of the appeal involves questions or issues of law alone.

The import of the provisions is that an appeal from any decision of the Court below to this Court which raises or involves questions or issues of pure law, alone, is one that is at the unfettered discretion of the Appellant or party, as of right to be brought or filed in the Court subject only to the procedure prescribed in subsection (3) and Section 233. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172, Ngige v. Obi (2006) 14 NWLR (pt. 999) 1, Minister, P. M. R. v. Exposhipping Line Nig. Ltd (2010) 12 NWLR (pt. 1208) 26, (SC).

The right appeal, being as of right, is to be exercised only in accordance with the stipulations of practice and procedure of the Court, but freely by the party and without prior resort to either the Court below or this Court before the filing or bringing a proper, valid and competent appeal which the Court is imbued with the requisite jurisdiction to entertain and adjudicate upon. See Clement v. Iwuanyanwu (1989) 4 SC (pt. 11) 89, (1989) 1 NWLR (pt. 107) 39, Saraki v. Kotoye(1992) 11-12 SCNJ, 26, (1992) 1 NWLR (pt. 264) 156, Nalsa & Team Associates v.

NNPC (1991) 11 – 12 SC, 83. (1991) 8 NWLR (pt. 212) 652. ​Here, because the appeal is as of right, the permission, go-ahead or leave of the Court is not required and so not necessary before the appeal can be validly brought or filed in the Court.

However, where an appeal from the decisions of the Court below to this Court is predicated or based on ground/s which raises or involves questions or issues which are not or pure law alone, but involves or raises questions or issue of either mixed law and facts or of facts alone, then the provisions of Subsection (3) of Section 233 come in to play and apply to the right of appeal, which would, in the circumstances, not be exercised as of right, but in accordance with the stipulation therein.

The stipulation is that where the ground/s of an appeal against the decision of the Court below involves or raises questions which are not of pure law alone, as set out in the provisions of Subsection (2), then the appeal shall lie to this Court with the leave of Court below or of this Court.

The exercise of the right of appeal, in such a situation, is fettered by the requirement of prior leave or permission of the Court below or this Court before the filing or bringing a valid appeal in this Court which will in turn, vest the Court with the requisite competence and jurisdiction to entertain and adjudicate over it.

The leave of Court is made a condition precedent to be satisfied or fulfilled for the validity and competence of an appeal to this Court from the decisions of the Court below which involves or raises questions of either mixed law and fact or facts alone, under the provisions of Subsection (3). It is the prior leave of Court; first sought and obtained, that constitutes the fulfillment or satisfaction of the condition precedent for the filing or a valid and competent appeal which will vest the Court with the requisite judicial vires and authority to entertain such an appeal.

The absence of the required and so necessary leave of Court in such a situation, will deprive the Court of competence and jurisdiction to hear or adjudicate over the appeal. There is a formidable body of decisions by this Court on this position of the law which has made it common knowledge in both the Court below and this Court. For instance, in the case of Kashadadi v. Sarkin Noma (2007) 6 SC (pt. 1) 68m (2007) 13 NWLR (pt. 1052) 510, Tobi, JSC, restated that:-

“By the Constitution, the Supreme Court cannot hear an appeal on grounds of mixed law and facts unless leave of the Court or the Court of Appeal is obtained. Where an appeal requires leave of Court and the leave is not sought for and obtained, the appeal is incompetent and will be struck out. This is because a Court of competent jurisdiction has no jurisdiction to hear an incompetent appeal.” See in addition, Nalsa& Team Associates v. NNPC (supra), Russel v. Russel (1987) 2 NWLR (pt. 57) 437, Faleye v. Otapo (1987) 3 NWLR (pt. 64) 186, Comex Ltd. v. N.A.B.

Ltd. (1997) 3 NWLR (pt. 496) 643 (SC), Ifeajuna v. Ifeajuna (1999) 1 N WLR (587) 492, Ukpong v. Comm. For Finance & Eco. Dev. (2006) 11-12 SC, 36, (2006) 19 NWLR (pt. 1013) 187, SPDCN Ltd. v. Katad Nig. Ltd. (2006) 1 NWLR (pt. 960) 199, Opuiyo v. Omoniwari (2007) 6 SC (pt. l) 35, (2007) 16 NWLR (pt. 1060) 415.

In view of the above foundation, I now turn to look, closely, and consider the grounds contained on the Appellants’ Notice of Appeal, as they appear above, which was filed as of right in order to see if and whether they all or some of them raise or involve questions of pure law alone in order for the Court to be properly seized of the requisite jurisdiction to adjudicate over the appeal without the need for leave of Court.

Perhaps, before embarking on such consideration, I should restate the now elementary position of the law that due to its fundamental and crucial nature, the issue of jurisdiction of a Court to entertain and adjudicate over a matter or, as in this case, an appeal, as a matter of substantive law, can be raised at all stages of proceedings of all the Courts in the judicial hierarchy, at any time, anyhow and by any of the parties or the particular Court, suo motu.

It is never late to raise the issue or question of the jurisdiction of the Court to adjudicate over a matter, case or appeal, even viva voce and once it arises or is raised, the Court has the duty to determine it first before proceeding to deal with other issues that may be raised therein, if necessary. The reason for this inviolable position of the law is that all judicial proceedings of a Court conducted without the requisite jurisdiction, along with any product thereof, are null, void and of no legal value and effect ab initio, howsoever otherwise well conducted. See Madukolu v.

Nkemdilim(1962) SCNLR, 341, (1962) All NLR, 587, Odiase v. Agho (1972) 1 All NLR (pt. 1) 170, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, Oloriode v. Oyebi (1984) 5 SC, 260, Altine v. Afribank Plc. (2000) 15 NWLR (pt. 689) 181 (SC), Senate President v. Nzeribe (2004) 41 WRN, 60 (SC), Cotecna Int. Ltd. v. Ivory Merchant Bank Ltd (2006) 5 SCM, 17, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272 (SC), Equity Bank of Nigeria Ltd. v. Halilco Nig. Ltd. (2006) 7 NWLR (pt. 980) 568 (SC), Shitta-Bey v. A.G., Federation (1998) 7(pt. 11) 121, (1998) 10 NWLR (pt. 570) 392, Onyema v.

Oputa (1987) 3 NWLR (pt. 60) 259 (SC), Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 166 (SC), Durwode v. State (2000) 15 NWLR (pt. 691) 467 (SC), Otukpo v. John (2000) 8 N WLR (pt. 669) 507 (SC), among the litany of the pronouncements on the position by this Court.

In addition, the issue of jurisdiction to entertain an appeal by this Court can be raised at the judgment stage by the Court without the need to call for address and proceed to decide it, being the final appellate Court in Nigeria. In the recent case of NNPC v. Roven Shipping Ltd (2019) 9 N WLR (pt. 1676)67 at 92, paragraphs 13 – D, M. D. Muhammad, JSC, repeated the law when he said:- “Now, it is beyond contention that the requirement of giving parties the opportunity to address a Court on an issue raised by the Court suo motu is a general rule which, like all others, has exceptions.

Decisions of this Court abound specifying these exceptions. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (pt. 1213) 106, Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 and Bola Omoniyi v. Jacob Adegboyega Alabi (2015) LPELR-24399 (SC) (2015) 6 NWLR (pt. 1456) 572.

It has been held by this Court in those decisions, that the principle that whenever a Court raises an issue not within the contemplation of parties and suo motu parties should be given a hearing before a decision on the issue so raised, applies mainly to issues of fact and that, in special circumstances, an issue of law or jurisdiction may be raised suo motu and without hearing the parties, decide upon the issue so raised.” This position is an affirmation or the earlier pronouncement by Rhodes- Vivour, JSC, in Omokuwajo v.

FRN (2013) 9 NWLR (pt. 359) 300 at 332, paragraphs D – E whereinHis Lordship stated that:- “The need to give the parties a hearing where a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignore a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.” See also Katto v. CBN (1991) 9 NWLR (pt. 316) 159 at 178, Ejowhomu v.

Edok-EterMandilas Ltd. (1986) 5 NWLR (pt. 39) 1, Olutola v. Unilorin (2005) All FWLR (pt. 245) 1154, Alims Ltd. v. UBA, Plc (2013) 1 MJSC (pt. 1) 156 at 170.

It may be recalled that I did not set out the particulars provided under each of the grounds of the appeal as contained on the Notice of Appeal. My reason for so doing is that all the particulars set out under each of the grounds are mere arguments in support of the grounds and not facts which flow directly from and which should ossify the complaints of alleged misdirection or errors of law in the grounds. See Agbara Estates Ltd. v. Odejayi (2010) LPELR- 3650, Atuyeye v. Ashamu ​(1987) 1 NWLR (pt.49) 267, Rinco Constr. Co. Ltd. v. Veepee Ind. Ltd. (1995) 5 NWLR (pt. 240) 248.

I now turn to the grounds.

From the notice set out on the Notice of Appeal, the decision of the Court below complained against by the Appellant is contained in the Ruling delivered on the 20th November, 2006, on the motion/application for the trinity prayers of extension of time to seek leave, leave and extension of time to appeal.

Apparently therefore, the real complaint in the appeal and all the grounds on the Notice of Appeal is against the exercise by the Court below of its judicial discretion conferred on it by the provisions of Section 25 of the Court of Appeal Act, as well as Order 3 Rule 3(4) of its Rules, 2007 to entertain such applications/motions. See Nigerian Lab. Corp. v. Pacific Merchant Bank Ltd (2012) LPELR – 7859 (SC), Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt. 1173) 254, Adejumo v. state (2006) 9 NWLR (pt. 986) 627.

It is known that the exercise of any Judicial discretion, which has been described in its general usage, as the power and freedom to decide what should be done in a particular situation or the exercise of judgment by a judge or Court based on what is fair under given circumstances, guided by rules and principles of law, See Akinyemi v. Odu’a Invest. Co. Ltd. (2012) LPELR 8270 (SC), is predicated on appraisal and evaluation of facts presented before the Court by the parties in a case, but in particular, the facts from the party seeking the exercise of the discretion in his favour.

Speaking generally, it is said that a ground of appeal challenging the exercise of such a discretion, would be one of, at best, mixed law and facts, depending on the nature of the complaint therein. Obinyiriuka v. Aliche (1991) 4 N WLR (pt. 183) 87 at 95.

In this appeal, all the four (4) grounds complain about the appraisal and evaluation of the facts deposed to in the Affidavit in support of the motion filed by the Appellant before the Court below seeking the exercise of the discretion for extension of time and leave to appeal.

Although an Affidavit qualifies as and is evidence, the exercise of the discretion by the Court below involved the evaluation or such evidence on the basis of the facts deposed to in the affidavit in order to make the finding of facts in its ruling and the law is now firmly settled that a ground which challenges the evaluation of evidence, is at best, one of mixed law and facts and not of pure law alone. See UBA Ltd v. Stahlbau GMBH & Co. KG, (1989) 1 NWLR (pt. 110) 374 (SC), Obinyiriuka v. Aliche (supra)

In the case of Ehinlanwo v. Oke (2008) 6 – 7 SC (pt.

II) 123, (2008) 16 NWLR (pt. 1113) 357, Onnoghen, JSC (later CJN) stated law, in the determination of whether a ground or appeal is one of law or mixed law and facts, inter alia, that:- “(ii) A ground which challenges the findings of fact made by the trial Court or involves issues of law and fact can only be argued with the leave of the Appellate Court. (iii) where the evaluation of fact established by the trial Court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and facts. (iv) where the evaluation of evidence tendered at the trial Court is exclusively questioned, it is a ground of facts.”

The grounds on the appellant’s Notice of Appeal clearly, come and are wholly covered by the above principles because they all seek to question or challenge the appraisal and evaluation of the facts in the Affidavit and the findings of facts made by the Court below on application of its rules to the facts.

In these premises, the grounds are not of pure law alone to clothe the Appellant with the right of appeal as of right as stipulated under the provisions of Section 233 (2) (a), rather, the grounds are at best, of mixed law and facts, which by dint of the provision of Section 233 (3), (as shown earlier), require prior leave of either the Court below or this Court as a condition precedent, to be validly and competently brought and for the Court to have the requisite jurisdiction to adjudicate on same.

I have also demonstrated before now, that the absence of such leave renders an appeal, incompetent and deprives the Court of the jurisdiction to adjudicate over it. That is the fate of this appeal.

The above position, as it is apart, I have also noticed that the Notice of Appeal was in fact signed by proxy; by way of a contraption of a signature, for the person whose name was set out clearly.

The name of the person who inscribed or appended the contraption of the signature on behalf of and for the person whose name was set out is not stated or written in order to be identified for the purpose of determining whether he is a legal practitioner known to law by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act (LPA) and so competent to sign the Notice of Appeal, as an initiating process in this Court.

The law is that once it is not certain and clear as to the actual person who signed a process to be filed in Court by clear indication of the name, the process is incurably incompetent. See SLB consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1352) 317, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485, Okarika v. Samuel (2013) 7 NWELR (pc. 1352) 19.

In the appellate Courts, the Notice of Appeal is the initiating process and so the foundation of an appeal over which the requisite jurisdiction of the appellate Court can validly by invoked. It is sine qua non. Any defect in the Notice of Appeal would render it incompetent, thereby depriving the appellate Court of the jurisdiction to entertain and adjudicate over an appeal. ​In law, in the absence of a valid and competent Notice of Appeal, there will be no appeal over which anappellate Court could adjudicate or conduct judicial proceedings, ab initio. SeeRe: Osibakoro D.

Otuedon (1995) 4 NWLR (pt. 392) 655, Uwazurike v. A. G., Federation (2007) 2 SC, 19, (2007) 8 NWLR (pt. 1035), Odunze v. Nwosu (2007) 5 -6 SC, 40, (2007) 13 NWLR (pt. 1050) 1, Adelekan v. Ecu-Line NV (2006) 5 SC (pt. II) 32, (2006) 12, NWLR (pt. 993) 33, Shelim v. Gobang (2009) 12 NWLR (pt. 1156) 435, Oketie v. Olughor (1995) 5 SCNJ, 217 and Thor Ltd. v. FCMB Ltd. (2002) 2 SCNJ, 85.

On the ground that the Notice of Appeal was signed by a proxy who did not clearly and specifically write his name and cannot be identified and is not reasonably identifiable, it is incurably defective and incompetent. It is incapable of invoking the jurisdiction of this Court, over the purported appeal and is liable to be struck out.

In the final result, for the aforenamed reasons, the undated Notice of Appeal at pages 28 – 31 of the Record or Appeal is struck out for being incompetent.

There shall be costs assessed at two (2) million naira (2,000,000.00) in favour of the Respondent to be paid by the Appellant, for the prosecution of this 2010 appeal in this Court.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The instant appeal is against the exercise of discretion by the lower Court in refusing to grant the appellant’s motion on notice filed on 19/4/2006 seeking the trinity prayers, to wit: extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, against the ruling of the Federal High Court delivered on 7/4/2003 in suit no. FCH/L/CS/293/98.

It is an application that seeks the exercise of the Court’s discretion. Black’s Law Dictionary 8th edition at page 499, defines “judicial discretion” thus: “The exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law: a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.”

In The Owners of M.V. Lupex Vs Nigeria Overseas Chartering & Shipping Ltd. (2005) 15 NWLR (Pt.844) 469, it was held, per Uthman Mohammed, JSC, that: “An exercise of discretion is a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a particular case guided by the spirit and principles of law.” In effect, the exercise of discretion involves a consideration of surrounding facts and circumstances. The appeal herein was filed as of right.

By Section 233(2) of the 1999 Constitution, as amended: “an appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) Where a ground of appeal involves questions of law alone decisions in any civil or criminal proceedings before the Court of Appeal.

Section 233(3) provides: (3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” I agree with my learned brother, Mohammed Lawal Garba, JSC, that the grounds of appeal before us seek to challenge the exercise of the lower Court’s discretion. They are grounds of fact or at best grounds of mixed law and fact. Failure to seek prior leave to argue the grounds, is fatal to this appeal.

See Nwagbara Vs Jadcom Ltd. (2021) LPELR – 55329 (SC) @ 10 C- E; Chrome Air Services Ltd &Ors Vs Fidelity Bank ​(2017) 12 SC (Pt.III) 57; Umanah vs N.D.I.C. (2016) 7 SC (Pt. V) 49.

For these and the more detailed reasons advanced in the lead judgment, with which I concur, I hold that this appeal is incompetent. It is hereby struck out. I abide by the award of costs made.

EJEMBI EKO, J.S.C.: This is an interlocutory appeal brought against the ruling of the lower Court refusing and dismissing the application brought on trinity prayers for extension of time within which the Appellant may appeal the decision of the lower Court. The incompetence of the appeal is most glaring. I agree with the lead judgment of my learned brother, Mohammed Lawal Garba, JSC, just delivered and do hereby endorse and adopt the said judgment striking out the appeal including order as to costs.

I will only now just highlight some other reasons in support of the order striking out the appeal for incompetence. This is an interlocutory appeal as I earlier point out. The notice of appeal against the decision appealed ought to have been filed within 14 days from the date of the decision appealed, that is 20th November, 2006. The notice of appeal was however filed on5th December, 2006 – 16 days from the date of the decision appealed.

The mandatory provision of Section 27(2)(a) of the Supreme Act, 2004 prescribing 14 days from the date of the decision appealed as the period within which to give notice of appeal against an interlocutory decision in a civil case has thus been contravened. The instant notice of appeal, filed out of time, is in consequence a nullity ab initio.

In addition, the notice of appeal was settled or signed by an unknown proxy of Egede Ferdinand, Esq., of the law firm of Femi Atoyebi& Co. (at page 31 of the Record). This fundamental defect, like the previous one highlighted above, goes to the root of this sham appeal. ​ Let me sieze this occasion to comment on one practice that is now gaining ground among legal practitioners.

The Rules of Professional Conduct for Legal Practitioners, 2007, Rules 20(1) & (6) in particular, provide inter alia “a lawyer shall not accept to act in any contemplated or pending litigation if he knows or ought reasonably to know that he or a lawyer in his firm may be called or ought to be called as a witness” and that “if, during the trial, the lawyer discovers that the ends of justice require his testimony, he should from that point on, – leave further conduct of the trial to other counsel”, and that he “shall not argue the credibility of own testimony”. At the lower Court, Mr.

Egede Ferdinand was against these basic rules of ethics, concomitantly both the Applicant’s counsel and the deponent of the supporting affidavit. The rules of professional conduct prohibited Egede Ferdinand, Esq., from acting in both capacities contemporaneously. The application was thus bedeviled and vitiated ab initio by his unethical practice. Appeal struck out.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having read before now, the submissions of the learned counsel contained in the respective briefs of argument vis-a-vis the records of appeal as a whole, I cannot but concur with the reasoning expressed in the judgment just delivered by my learned brother, the Hon. Justice M.L. Garba, JSC, to the conclusive effect that the undated Notice of Appeal filed on 05/12/2006, is incompetent, thus liable to be struck out.

​Hence, having had the privilege of adopting the said reasoning and conclusion as mine, I toohereby unhesitatingly strike out the Notice of Appeal for being incompetent.

TIJJANI ABUBAKAR, J.S.C.: My Lord and brother Garba, JSC granted me a preview of the judgment just rendered in this appeal. I am in full agreement with the entire reasoning and conclusion and adopt the entire judgment as mine. I just wish to add that, this appeal is against the decision of the Court of Appeal Lagos Division delivered on the 20th day of November, 2009 refusing the Appellant/Applicant leave to appeal.

The basis of the decision of the lower Court is that the Appellant/applicant applied for leave to appeal three years after the decision.

The Applicant failed to furnish good and substantial reasons for the delay in bringing the application. The circumstances surrounding the resignation of Mr. Abasi Inyang has not been explained to the satisfaction of the lower Court.

Let me add, that the Appellant/Applicant must also show arguable grounds of appeal. In the instant case, the trial Court clearly relied on Section 12 of the NNPC Act to hold that Appellants suit ought to have been filed within twelve month of the occurrence of the event. The action wasbrought five years after, this is clearly a hopeless case because the Appellant/Applicant cannot perform magic to inject life into the suit, the suit is dead on arrival.

Appellant’s appeal is frivolous and vexatious and therefore deserves to be dismissed.

I endorse the decision of the lower Court dismissing the application for leave to appeal. Again the grounds of appeal are incompetent, they are of mixed law and facts, leave was not obtained. They are accordingly struck out. Appeal struck out. I endorse all consequential orders including the order on costs.