It is settled that the standard of proof in civil proceeding is on the balance of probability or on preponderance of evidence as against "proof beyond reasonable doubt" required in proof of a crime. What this means is that in using the imaginary scale, the court would see which side the pendulum swings.

In this case, the court held that in civil proceedings, where a party admits a particular fact, the burden of proving such fact is taken off the shoulders of the party who asserted that fact. This is because by Section 75 of the Evidence Act, 2011, facts admitted requires no further proof but taken as established.

This is not the position in criminal proceedings, here admission of criminal liability or confession to same can only be made by the accused himself in order to be effective.

The word appearance here means coming into court as a party or as a person interested or as a lawyer on behalf of a party to the case especially as in a defendant's act of taking part in a law suit whether by formally participating in it or by an answer, demurrer or motion or by filing a memorandum of appearance.

In this case, the court held that if a defendant fails to enter appearance within the time allowed by law or fails to appear in court when required to do so for hearing of his matter, upon proof that he had notice of the hearing, judgment may be given against him in his absence. Generally, where there is default of appearance by the defendant who has been shown to have been duly served with the processes, the plaintiff may proceed to prove his case as much as the burden of proof lies on him and if the defendant continues to absent himself without explanation, the matter may proceed to judgment. See Erinfolami v. S.G.B. (Nig.) Limited (2008) 7 NWLR (Pt. 1086) 306 at 337.

In undefended list cases, once the defendant is served with the plaintiff's originating processes together with the required affidavit and exhibits, if the defendant does nothing, judgment will be given against him without more. Such a judgment on the merit, and unless the defendant successfully establishes fundamental non-compliance such as issues of jurisdiction, he is not likely to succeed on appeal.

The Supreme Court defined a Rule as a normative proposition making certain legal results depend upon the establishment of certain factual situations stipulated in the antecedent part of the rule.

Rules of Court refer to stipulations made by the Head of a particular court such as the Chief Justice of the Federation, the President of the Court of Appeal and the Chief Judge of a State or that of the High Court of the FCT, on the workings and procedure in relation to the said court.

The overall interest of the rules of court is the attainment of justice. Thus, in the interpretation or construction of the rules, courts are enjoined to have the interest of justice always in mind.

It was held in this case that rules of courts are aids to courts and not masters and that for a court to read rules in the absolute without recourse to justice of the case will make the courts slavish to the rules. This enjoins the courts to see rules of court handmaids and not as mistresses. While appreciating that rules of court are also designed to ensured speedy dispensation of justice and avoid expenses.

In this case, the court observed that rules of court made in exercise of the powers conferred by Section 274 of the Constitution as amended especially as regards service and execution of court processes or under the respective High Court Laws, must conform to the Sheriff and Civil Process Act contained in Chapter S6, Vol. 14, Laws of the Federation of Nigeria, 2004 or be void to any extent of it inconsistency. Otherwise, if strictly followed as it ought to be, States are precluded from legislating on service and execution of court processes of superior courts of record which is in the exclusive list.

The court in this case observed that where no provision is made in these in Rules of Court or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as can be conveniently applied be in force in the court; provided that no practice which is inconsistent with these rules shall be applied. See Order 35 Rule 10 of the High Court Rules (West) and the provisions of Section 12, High Court Law of Lagos State. It is important to note that where local rules have sufficiently provided for a situation, there can be no recourse to English Rules. See Zenith Global Merchant Ltd. v. Z.I.I. (Nig.) FZE (2017) All FWLR (pt. 885).

Some rules that are applied in court today are not contained in any enactment or in any rule of court. They are more or less, rules that come out of the ingenuity of judges of superior courts. Superior courts like the Supreme Court and Court of Appeal, all of Nigeria. For instance, in this case, the court laid down the rule that where a party wishes to challenge the report of a referee appointed by the court to conduct an investigation on matters arising in a case, he should give notice of the part of the report he is objecting to and the grounds for so objecting. See Ikoro v. Safrap (Nigeria) Ltd. (1977) 2 SC. 123.

This arises in the course of interpretation of rules of court (including formulation of new rules) that the courts have developed over the years. These are not stated in any rules or statutes but laid down in decisions of superior courts in the course of interpretation of rules or statutes.

In this case, the requirement of addressing the court before making an order of non-suit was decided. See also Lion Building v Shodipe (1976)12SC 135. However, this rule is presently provided in some High Court Rules. For example, Order 34 (1) of the Lagos Rules 2019 provides thus:

"Where satisfactory evidence is not given entitling the claimant or Defendant to the Judgment of the Court, the Judge may suo motu or on application non-suit the claimant, but the parties‟ Legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order."

Also, In Ikoro v Safrap (Nigeria) Ltd (1977) SC 123, the court enunciated the rule that a court should not permit a defence counsel to make a no-case submission except he elects to stand by the submission, without given evidence.

In this case, the court defined practice direction as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed. Non- compliance with the Practice Direction is fundamental as it vitiates all steps taken at the trial resulting in nullity. See Nwankwo v Yar'adua (2010)12 NWLR (Pt.1209)518.

The court further held that the power conferred on the Chief Justice of Nigeria to make rules to regulate the practice and procedure in the Supreme Court includes the power to make practice directions as to the mode of complying with or obeying those rules. The court went further to explain that a practice direction is not an enactment and so not having the force that a rule of court has as to fetter a rule of court. Thus, where there is a conflict between a rule of court and a practice direction, the rule shall prevail.

The Court held in this case, that provisions in practice directions in relation to time to appeal in election petitions for example, are mandatory and in the nature of statutes of limitation and time cannot be extended in the circumstance. In Nwankwo v. Yar'adua (supra), the Supreme Court held that practice directions have the force of law as Rules of Court.

As to the status of practice direction in the hierarchy of laws, the Supreme Court; Per Niki Tobi held thus:

"In the hierarchy of our jurisprudence, Practice Direction comes last in terms of authority in area of conflict. If there is a conflict between the Constitution and Practice Directions, the former will prevail. If there is a conflict between an enabling statute and Practice Directions, the former will also prevail. Where there is a conflict between enabling rules of court and Practice Directions, the enabling rules of court will prevail."

Rules of court are meant to be obeyed by parties as they are guidelines to the courts, litigants and counsel. They are not mere rules but are held to be in the nature of subsidiary legislation having regard to the provisions of section 18(1) of the Interpretation Act and therefore have the force of law.

Where there is non-compliance with rules of court, the courts are enjoined to penalize the defaulter and not remain passive so that the purpose of enacting those rules is not defeated. Courts are also bound by the rules of their courts.

The position of the law seems to be that where a party is in breach of or fails to comply with the rules of court, the objector must raise objection to the breach timeously. The effect of not raising objection on time is that the party not in breach may be deemed to have waived the irregularity. See also Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387.

Where he is so deemed to have waived his right, he is legally said to have acquiesced to the non-compliance and he will be precluded from raising the issue on appeal. See Pa Sheindemi & Ors. v. Gov. of Lagos State & Ors. (2006) All FWLR (pt. 311) 1858; Saraki v. Kotoye (1990) 4 NWLR (pt. 264) 144.

However, where a party can show that as a result of the irregularity, the merit of the case was materially affected or that he has suffered a miscarriage of justice, then, such a proceeding may be set aside. See Maja v. Samouris (2002) 3 S.C. 37 at 46.

In this case the court held that where a party can show that the breach of the rules of court is not a mere irregularity but is fundamental, in that it affected the jurisdiction of the court, appeal will be allowed. For instance, where the rules requires personal service of an originating process and either the party did not serve at all or served by a mode other than personal, the proceedings may be set aside on this ground. In other words, where there is a breach of the rule as to service of processes, the breach is no longer regarded as an irregularity or mere technicality but substantive and fundamental.

In this case, the court held that where a person seeks to declare an action incompetent on grounds of non-compliance with the rules of court, he would be required to raise objection timeously. If he participates fully to the end, aware of the non-compliance, he would be required to show the injustice which the breach has occasioned or likely to occasion to warrant the setting aside of any judgment obtained against him at the end of the proceedings. Otherwise, the court is most likely to invoke the Principle of Departure from the Rules.

In this case the Court of Appeal defined an action thus:

"An action is an ordinary proceeding in a court of justice by which one party prosecutes another party for the enforcement of a right, the redress or prevention of a wrong, or punishment of a public offence, any judicial proceeding which if conducted to a determination, will result in a judgment or decree."

Suffice to say therefore, that an action is any legal suit whereby one person makes a formal demand of another in a court of law or tribunal.

Cause of action refers to facts sufficient to give rise to an action entitling the claimant to a relief in law. Before instituting or defending an action in any court, a party should be advised by the party's counsel as to the existence of a reasonable cause of action. See also A.G. Lagos State v A.G. Federation (2020) unreported suit No: SC/CV/260/2020

The court defined cause of action as the aggregate of facts designating and constituting subject matter; it is factual circumstances giving rise to or upon which an enforceable claim is anchored. It includes wrongful act complained against and damage consequent or flowing thereby. See also Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172; Mohammed v. Dantata (1996) 8 NWLR (pt. 469) 745.

It is also defined as every fact which is material to be proved to entitle the plaintiff to succeed and every fact which a defendant would have a right to traverse. See Edjerode v. Ohwovwiogor (2001) 12 S.C. (pt. II) 94 at 103. It refers to the facts which, if proved, would entitle a plaintiff to remedy against the defendant. See Seagull Oil Limited v. MoniPulo Limited (2011) 15 NWLR (pt. 1271) 525 at 547.

A reasonable cause of action therefore means a cause of action which, when only the allegations in the statement of claim are considered, has some chance of success.

At the stage of determining the question of reasonable cause of action, only one document falls for consideration and that is the statement of claim. In determining whether a cause of action or reasonable cause of action exists in a cause, the court has to look at and consider the facts and pleaded in the statement of claim. See also Iyeke v. P.T.I (2019) 2 NWLR (Pt. 1656) 217 at 239.

It has no business at this stage to consider the statement of defence even if one has been filed as what the court is called upon to do at this stage is not to look into the merits or otherwise of the plaintiff's case. It is simply to determine if there is a reasonable cause of action. See C.S.S. & D.F. Ltd v. Schlimberger (Nig.) Ltd. (2018) 15 NWLR (pt. 1642) 238.

This a Latin maxim refers to the capacity of a person to sue. It is also referred t as title of a person to sue. Apart from the power of a claimant to sue, the term is used even more broadly to refer to the right party to appear and be heard on any particular matter before a court of law or tribunal.

It is also defined as the right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law. See A.G. Kaduna v. Hassan (1985) 2 NWLR (pt. 8) 453; A.G. Federation v. A.G. Lagos (2017) All FWLR (pt. 885) 1766.

The question of locus standi may be closely linked to the question of cause of action. This is because the person in whom the cause of action enures is the one who has the locus standi to institute an action in the court.

The Supreme Court defined locus standi thus:

"The term locus standi entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from anybody or person whatsoever, including the provisions of any law."

See also A-Oguntimehin v. Trade Bank Plc. (2017) All FWLR (pt. 899) 499; Adeokin Records v. M.C.S.N. (2018) 15 NWLR (pt. 1643) 550.

Expatiating on the purport of the provisions of section 6(6)(b) of the Constitution, the Court of Appeal explained in this case and held inter alia:

"Section 6(6)(b) of the Constitution does not confer locus standi on any litigation to have free, automatic and unbridled access to the court in order to ventilate any issues, whether mundane or otherwise. The subsection merely allows the court to examine any question regarding such a litigant's civil rights and obligations. Hence, a litigant must first and foremost establish factual circumstances encapsulated in his cause of action that his constitutionally entrenched civil rights and obligations have been infringed upon, seriously jeopardized or are to be infringed upon before section 6(6)(b) which vested judicial powers in the court will kick in and provide a forum for litigation cum adjudication and thereby enable the Court to look into the litigation grievances or complaints."

The requirement of locus standi is one of law's attempts to keep out of court passers-by, strangers, busybodies and meddlesome interlopers.

In Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (pt. 1355) 28, the Supreme Court observed that for the section to apply, the appellant must prove that his civil rights and obligations will be affected or are affected in the matter to be determined by the court, otherwise, he is a busybody and his case a hypothetical or academic one.

In this case, the appellant, a non-governmental organization sued the respondent at the Federal High Court, Lagos claiming reinstatement, restoration and remediation of the impaired and/or contaminated environment in Acha autonomous community of Isikwuato Local Govt. Area of Abia State. The respondent raised an objection on the ground of lack of locus standi.

The Federal High Court sustained the objection of the respondent and struck out the suit. The appellant approached the Court of Appeal challenging the decision of the Federal High Court. The appeal was dismissed. Further dissatisfied, the appellant appealed to Supreme Court.

The Supreme Court, in a unanimous decision allowed the appeal, holding that:

"It would be a grave lacuna in the system of public law if a pressure group or even a single public spirited tax payer were prevented by outdated technical rules of locus standi from bringing a matter to the attention of the court to vindicate the rule of law and get an unlawful conduct stopped."

In order to determine whether the claimant has locus standi in any case, the only documents to consider, as in case of cause of action, are the writ of summons and the statement of claim. Going beyond these documents into the defendant's statement of defence or any other document means going into the merits of the case. So, when the court finds from the writ and the statement of claim that there is no locus standi in the claimant, it should, without much ado, strike out the case.

The question of locus standi is fundamental and it is extrinsic to jurisdiction. If a party does not have locus standi, the court has no jurisdiction to hear him. See RTEAN v. NURTW (1992) 2 NWLR (pt 2240 381; Ogunsaya v. Dada (1992) 4 SCNJ 162 at 168. Consequently, the issue can be raised at any time, even for the first time on appeal. See Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 377.

In this case the court held that objections based on the absence of locus standi in the claimant should be raised at the earliest time possible, usually, before the claimant files his defence. This has the advantage of saving precious judicial time.

The court, per Babalakin, held inter alia:

"When a court holds that a plaintiff has no locus standi in respect of a claim, the consequential order to be made is striking out of such claim and not dismissal of the claim..."

In the case of Ovenseri v. Osagade (1998) 7 SCNJ 188 at 195, the court observed that the effect of such order of dismissal would be a striking out order. Consequently, that if a court of trial makes an order of dismissal where the issue is that the plaintiff has no locus standi, the appellate court has the power to amend it to read: "striking out".

Although the provisions of section 6(6)(b) of the 1999 Constitution amended deals essentially with the adjudicatory powers of the courts established therein, a careful reading of the said subsection indicates that the issue of locus standi is also encapsulated in paragraph (b) of the said subsection.

The Supreme Court held in this case that "the locus standi cannot stand independently from the provisions of section 6(6)(b) of the Constitution" and that where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim, the same will be struck out. See also Adesanya v. President (1981) 2 NCLR 338.

The requirement that the plaintiff must establish that the right he pursues is either peculiar or personal to him was further relaxed in this case when the Supreme Court, per Nnamani JSC, held that:

"It is my view that in these matters which are so interlined with the criminal law, our interpretation of section 6(6)(b) of the Constitution must be approached with the true liberal spirit in the interest of society at large...in the circumstances of this case, can it be seriously argued that the appellant is not on a higher pedestal than any person to whom the law has given locus standi in the wider interest of the society? From the affidavit filed, the deceased was in his lifetime, his friend and client. He had, from the papers in this case two days to his death, retained his professional services in relation to certain matters..."

Jurisdiction is defined in this case as the authority which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision.

The limits of this authority are imposed by statute, charter or commission by which the court is constituted and may be extended or restricted by similar means. See Zabusky v. Israeli Aircraft Industries (2007) All FWLR (pt. 352) 1759; Shell Petroluem Dev. Co. v. Isaiah (2001) 11 NWLR (pt. 723) 168.

Jurisdiction is fundamental in any adjudication. Where a court lacks jurisdiction, whatever it does is a nullity. This is because it is this jurisdiction that determines the competence of the court to inquire into any case, be it civil or criminal. Therefore, a court is said to be competent when the following four ingredients are present:

(a) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another;

(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;

(c) The case comes before the court initiated by due process of law; and

(d) Upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in the above is fatal as the defect is extrinsic to adjudication.

In this case the court held that: "Jurisdiction is radically fundamental to any judicial proceedings. It must be clearly shown to exist at the commencement of or during the proceedings otherwise such proceedings no matter how well conducted and any judgment arising therefrom no matter how well considered or beautifully written will be a nullity and a waste of time". See also cases like Adekanye v. Comptroller of Prisons (2000) FWLR (pt. 8) 1258; Galadima v. Tambai (2000) FWLR (pt. 14) 2369 and other plethora of cases.

In this case, the court observed that where a court has jurisdiction over part of the claim only, it is advisable for counsel to avoid such a court and go to the court that has jurisdiction over the entire claim.

The issue of jurisdiction may be raised at any stage of the proceeding. In fact, it may be raised for the first time at the Supreme Court and same shall be entertained especially where it borders on substantive jurisdiction.

Where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Hardly does a cause of action last forever. The law sets the time within which a cause of action will remain alive. Such laws are known as statutes of limitation.

In Kolo v. A.G. Federation (2003) FWLR (pt. 184) 349 at 363, the court held that the principle behind setting a time for bringing action before the court is to reduce the apprehension of the defendant. That is, no one should remain under threat of being sued indefinitely. It is meant to reduce the period during which a defendant would remain agitated by claims of the plaintiff.

An action can be said to be statute barred when such action is brought outside the statutory time-limit set/prescribed by the various statutes of limitation for commencing such.

Where a defendant complains that a suit is statute-barred, he is, in effect, challenging the competence of the suit. This invariably touches on the jurisdiction of the court as the court has no jurisdiction to hear an incompetent suit. See also Kolade v. Ogundokun (2017) All FWLR (pt. 895) 1557 where the Supreme Court held that to rely on statute of limitation, the objector must plead it.

This Supreme Court applied this provision in this case where it held that the word, "person" is not used in the limited sense but in the legal sense of the word which includes public officers. This principle was reiterated in the case of A.G. Rivers State v. A.G. Bayelsa State (2014) All FWLR (pt. 699) 1087, where the Supreme Court, relying on the above case held:

"The words "any person" as provided in section 2 of the Public Officers Protection Act are not limited only to natural persons or human beings or to persons sued in their personal names. Unless a contrary intention is indicated...those words in the Public Officers Protection Law include persons known to law inclusive of artificial persons, public bodies or body of the persons, corporate or incorporate as well as statutory bodies or persons whether sued by their official titles or not as long as they are sued in respect of an act done in pursuance or execution of any law or any public duty or authority."

The Act is intended to protect a public officer from distraction and unnecessary litigation and not shield him from the court in the face of stark injustice. Notably, the Act does not protect in the following cases:

(a) Where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty;

(b) It does not apply in an action for recovery of land; and

(c) In cases of a continuing wrong, the time does not begin to run for purposes of the limitation of action until the cessation of the wrong or injury sought to be ventilated. See also A.G. Adamawa v. A.G.F. (2014) 14 NWLR (pt. 1428) 515 where it was also held that the fact that parties were negotiating does not affect time.

(d) It does not apply to contracts. See Ministry of Education Anambra State v. Asikpo (2014) 14 NWLR (pt. 1427) 351.

The Supreme Court held inter alia:

"Accordingly, if the public officer whose duty it is to enforce the law in order to accomplish its legislative intent, sets out deliberately to do the opposite by sheer act of malevolence or malfeasance, by his impunity he has thereby stepped himself out of the protective scope of the Public Officers Protection Law or the public officer's protection Act."

Time begins to run when the cause of action accrued, that is when the wrong was committed. If the writ of summons was issue beyond the time allowed by the applicable statute of limitation, the action is statute barred. See also the following cases: Amede v. Uba (2008) 8 NWLR (pt.1090) 623 at 65 para. G to H; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549. It must be noted that negotiation does not prevent the period of limitation from running.

The period of limitation of an action is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed and comparing it with the date the writ was filed. See also Hassan v. Borno State Govt. (2017) All FWLR (pt. 911) 389 at 414-415; Adejumo v. Olawaiye (2014) 13 NWLR (pt. 1421) 252 at 284.

To that extent, where a suit is filed within time but struck out for any defect or irregularity, the suit may be relisted even if outside the limitation period. This is because a suit struck out remains alive of the cause list with liberty to relist. But, where, instead of relisting, the plaintiff files a fresh suit which is outside the limitation period, the suit will be caught up and thrown out. See Ajijola v. Rasaki (2019) NWLR (pt. 1665) 284.

The Supreme Court held that provisions in practice Directions in relation to time to appeal in election petition are mandatory and in the nature of statutes of limitation and time cannot be extended in the circumstance.

A pre-action notice is a condition precedent to commencement of action where such notice is required. Failure to give such notice makes the suit incompetent and remains so unless waived by the party entitled to such notice. In Amadi v. NNPC (2000) All FWLR (pt. 9) 1527 the Supreme Court held that where the notice does not comply strictly with the requirement in section 12 of the NNPC Act, that alone would not rob the court of jurisdiction.

The rule is so strict that in AMCON v. Onyedika (2018) LPELR -- 43764 (CA) it was held that a party otherwise entitled to pre-action notice must be served even though he was joined by order of court.

In N.F. & V.C.B. v, Adegboyega (2019) 4 NWLR (pt. 1662) 283, the Supreme Court explained that the essence of pre-action notice is to give the defendant enough time to consider or reconsider its position in the matter as to whether to compromise or contest it.

All processes filed by the Registry shall bear the seal of the counsel filing the suit as provided by the Nigerian Bar Association showing that the counsel is fully enrolled as a legal practitioner and qualified to practice in Nigeria. See Order 2 Rule 9 Abuja Rules 2018; Rule 10 RPC, 2007. Where however, counsel has paid for his seal but is yet to be given, evidence of payment of same have been held to suffice. The court held in this case that to do otherwise would be "turning justice on its head and inculcate justice for tardiness of the Nigerian Bar Association."

In the same way, in Emechebe v. Ceto Int'l (Nig.) Ltd. (2018) 11 (pt. 1631) 520 at 534, the Court of Appeal has held that an expired seal does not invalidate the proceedings.

In this case, the court observed that in cases of recovery of debts especially in mortgage transactions, as a rule, a formal demand letter must be sent to the debtor before the power of sale can be said to be exercisable.

In other circumstances, it is not compulsory neither is there a statutory provision or a rule of law that mandates it.

The word jurisdiction has received judicial interpretation in a plethora of cases. In this case the Supreme Court per Ogundare, (JSC) defined jurisdiction as the authority a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision. In Obeta v. Okpe (1996) 9 NWLR (pt. 473) 411, the court held that jurisdiction is the Vires of a court to come into a matter before it. Conversely, where a court has no jurisdiction over a matter, it cannot exercise any judicial power thereon.

The Jurisdiction of a court to try a matter before it is very important because a judgment delivered by a court without jurisdiction is a nullity. An objection to jurisdiction touches the competence and legality of the trial court to try the case. See Shell Petroleum Development Co. of Nigeria Ltd. v. Isaiah (2001) 11 NWLR (pt. 723) at 168, particularly at 173 and 174; Lawani v. Shettima (2001) FWLR (pt. 71) at 1870.

Jurisdiction is radical in nature and at the foundation of adjudication. So important is it that it cannot be defeated by the provisions of the rules of court.

Jurisdiction is a threshold issue. Thus, once the issue of jurisdiction is raised, the court must consider it first because where a court takes upon itself to exercise a jurisdiction which it does not possess, its proceedings are futile and its decision amounts to nullity. On this, the court held in AG Anambra State v. AGF and 16 Ors. (1993) 7 SCNJ at 249 that "the request that the resolution of the question of the court jurisdiction be deferred until the plaintiffs have been heard on their claims cannot be acceded to because where a court exercises a jurisdiction it does not possess, its decision amounts to nothing". It is thus clear that there is no point a court proceeding in a matter without the necessary jurisdiction.

Jurisdiction is such a fundamental issue that it can be raised in court by any of the parties or by the court suo moto. If the parties do not raise it, the court has a duty to raise it where there are sufficient facts ex facie on the record establishing want of jurisdiction. But, where the court raises it suo moto, it ought to ask the parties to address it on the issue.

The issue of jurisdiction can be raised at any stage of the proceedings in court. It can be raised for the first time on appeal at the Supreme Court. In Obeta v. Okpe (supra), the court held that once an issue of jurisdiction is raised at any stage in the proceedings in any matter, it ought to be done first as failure to do so may mean that all the exercise of adjudication turns out to be a useless waste of time.

Here the Supreme Court, Per Belgore JSC (as he then was) held as follows:

"Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity ... This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court, a fortiori the Court can suo moto raise it. it is desirable that the preliminary objection is raised early on issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and also to avoid a trial in nullity."

The court further held that an objection to jurisdiction can be raised by any of the following modes:

i. Preliminary objection;

ii. Motion on Notice supported by an affidavit of facts;

iii. In the Statement of defence;

iv. Viva voce

In this case, the court held that in the issue of jurisdiction must not first be pleaded by a party in order to raise it.

Here, he Honourable court made it crystal clear that it is a misconception to hold that objection must be taken after the filing of a statement of defence. What this means is that an application challenging the jurisdiction of a court to hear a matter can be filed and determined before the defendant files his statement of defence. Nevertheless, in cases began by originating motion and summons, parties are advised to file their Preliminary Objection and Counter-affidavit together, so that all processes can be adopted at the same time.

A party raising an objection to jurisdiction need not even bring the application under any rule of court. The application can be brought under the inherent jurisdiction of the court.

In this case the court held that effluxion of time or estoppel cannot affect the right of a party to raise the issue of jurisdiction as judgment delivered without jurisdiction is and remains for all times and purposes, a nullity.

When a court lacks jurisdiction to entertain a matter, the proper order to make is an order striking out the action, not an order of dismissal. An order of dismissal connotes that the case has been heard on the merits before being dismissed. But, that is not so when a case is struck out for lack of jurisdiction, because it has nothing to do with the merits of the action.

In order to determine if a particular court has the necessary jurisdiction to determine a case before it, the court must examine the plaintiff's claim as contained in the writ and the statement of claim with a view to determining the cause of action and whether the cause of action falls within the jurisdiction conferred on the court by the constitution or statute. See also Tukur v. Govt. of Gongola (1989) 4 NWLR (pt 117) 517 at 520; AGF v. Guardian Newspaper (1999) 69 LRCN p. 1531 at 1540 para 8.

Cause of action refers to the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. It is the factual situation on which the plaintiff relies to support his claim and it must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant.

The main claim in an action must be within the jurisdiction of the court in order for the court to properly assume jurisdiction over the matter. A court cannot adjudicate over the ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claim will inevitably involve a discussion of the main claim. See also Ali v. CBN (1997) 4 NWLR 498 at 192.

In the case, the Court of Appeal, Per Omosun, held that a defect in the court's competence is fatal and will affect the jurisdiction of the court but mistakes of wrong procedure may render hearing or the decision unsatisfactory, although they may not necessarily rob the court of jurisdiction to hear the matter.

In this case, the court held that a court is competent to adjudicate upon a case when:

(a) It is properly constituted with respect to the number and qualification of its membership;

(b) The subject matter of the action is within its jurisdiction;

(c) The action is initiated by due process;

(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.

See also Soyannwo v. Akinyemi (2001) 8 NWLR (pt. 714) p. 95 at 116 paras H-B; Enbuomwan v. Bendel Insurance Co. Plc (2001) 1 NWLR (pt. 694) at 396 para 3.

For a court to properly assume jurisdiction to adjudicate over a matter, "due process", that is, the conditions precedent to bringing the action must have been fulfilled. It is important to distinguish between a mere unsubstantial technicality which does not affect the competence of the court and a substantial technicality which affects the competence of the action and robs the court of jurisdiction.

Here the court held that a distinction must be drawn between a mere or unsubstantial technicality in proceedings that are competent and within the jurisdiction of a trial court and a substantial technicality which amounts to a condition precedent to the commencement of an action and which renders the proceedings manifestly incompetent, thereby affecting the jurisdiction of the court and renders the same incurably defective. Whereas the former may be waived, the latter, as a general rule, may not be waived because acquiescence does not and cannot confer jurisdiction on a court.

A rule of court may be waived if there is no miscarriage of justice, but statutory provisions which constitute condition precedent to commencement of actions ought not to be waived. A condition precedent to doing any act in court laid down by the constitution or statute cannot be waived but must be strictly complied with.

If it is not complied with, the action is incompetent and the court is thereby robbed of jurisdiction. Where the requirement is laid down by rules of court or subsidiary legislation, then such provisions could be waived, varied or compromised.

A pre-action notice is a notice provided for by a statute or enabling law that requires notices of intended action to be first served on certain would-be defendants by an aggrieved party before such aggrieved party may seek judicial redress. See also Ugwuanyi v. Nicon Plc. (2004) 15 NWLR (pt. 897) 612. For instance, many statutory bodies, government parastatals, departments and agencies such as Nigeria National Petroleum Company (NNPC) must be given a one month pre-action notice before an action is commenced against them.

If a pre-action notice is required and it is not given, and the issue is raised in court, the action will be struck out. But, if the defendant does not object to the lapse, or take further steps in the proceedings he will be taken to have waived the lapse.

Section 2 of the Public Officers Protection Act prescribes a time limit of three months within which an action against a public officer must be brought. Any time outside these three months will rob the court of jurisdiction.

Nevertheless, it is important to note that the Public Officers Protection Act does not apply in all cases, for instance; in this case, the court observed that it does not apply in cases of recovery of land, breaches of contract or claims for work and labour done. See also Salako v. LEDB & anor (1953) 20 NLR p. 169; Okeke v. Baba (2000) 3 NWLR (pt. 650) p. 644.

The Court in this case explained the rationale for statute of limitation as follows:

i. Long dormant claims have more of cruelty than justice in them;

ii. A defendant might have lost the evidence to disprove a stale claim and

iii. Persons with good cause of action should pursue them with reasonable diligence.

See also Olagunju v. PHCN Plc (2011) 10 NWLR (pt. 1254) p. 113 at 133, paras F -- H per Rhodes-Vivour, (JSC) where the Court stated that the purpose of limitation period is to protect the defendant from the injustice of having to face a stale claim or a claim he never expected to have to deal with; Also in Chigbu v. Tonimas Nig. Ltd (2006) 9 NWLR (pt. 984) p. 189 at 211, paras B -- C per Belgore (JSC as he then was) stated that the object of limitation law is to obviate the inconvenience and embarrassment to defendants whose witnesses may no longer be available and documents out of circulation and in some cases destroyed or no longer available.

Time begins to run when the cause of action accrued, that is, when the wrong was committed. If the writ of summons was issued beyond the time allowed by the applicable statute of limitation, then the action is statute barred. See Amede v. UBA (2008) 8 NWLR (pt. 1090) 623 at 65 para G to H.

It must be noted that negotiation does not prevent the period of limitation from running. See Eboigbe v. NNPC (1994) 5 NWLR (pt. 347) p. 649 SC at 659 paras F -- H, p.660, para D -- E per Adio (JSC).

In this case, the Supreme Court, per Edozie (JSC), observed that legal principles are not always inflexible and that sometimes they admit of certain exceptions. According to his Lordship:

"The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of damage, a fresh cause of action arises from time to time, as often as damage is caused: Battishill v. Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before the action, and within six years of action, a fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action: Darley Main Colliery Co. v. Mitchell (1886) 11 APP Cas 127; West Leigh Colliery Co. Ltd. v. Tunicliffe Hampson Ltd. (1908) AC 27."

See AG Rivers v. AG Bayelsa State and anor. (2013) All FWLR (pt. 699) 1087.

If a cause of action has been caught by the limitation period, but the defendant subsequently clearly acknowledges his indebtedness and an unconditional promise to pay can be inferred from his words or he expressly promises to pay, it served to exclude the operation of the statute of limitation.

In this case, the Supreme Court held that:

"A court called upon to decide whether a document is sufficient acknowledgment of a debt, has to carefully study the document and ascertain if its contents recognize the existence of a major right or debt against the defendants. Such a document should contain an express promise to pay or a clear acknowledgment of the debt. It need not state the exact figure of indebtedness. The letter in the instant case has no such characteristics and the trial judge was wrong to have held that it was acknowledgment of the debt."

The Supreme Court further cited with approval, the words of Lord Herschell in Stamford Spalding and Boston Banking Co. v. Smith (1892) 1 QB 765 at 768 as follows:

"An acknowledgment in order to exclude the operation of the statute, must be absolute and unconditional, and one from which a promise to pay the debt can be inferred."

Also, the acknowledgment must be made to the creditor or his agent or one entitled to receive the payment, but not to a total stranger. In Ajike v. Cardoso and Anor. (1939) 5 WACA 134, it was held that the court ought to determine whether according to the ordinary and natural meaning of the letter, it contained an express promise to pay or a clear acknowledgment of the debt and in the latter case, whether the acknowledgment is coupled with words which prevent the implication of an unconditional promise to pay.

If there has been no service on the defendant of the originating process in an action, it is a fundamental vice because without the necessary service, the court cannot proceed to hearing. It is trite that any judgment obtained against a party who has not been served with hearing notice is a nullity and must not be allowed to stand. Therefore the question of both parties having notice of the hearing before the case is heard is fundamental.

In Marion Obimonure v. Erinosho and anor. (1966) 1 ANLR p. 250 at 252 para H -- A and 253, the court held that where service of process is required, failure to serve is a fundamental vice and the person who is affected is entitled ex debito justitiae to have the order set aside as a nullity.

Locus Standi means the legal right of a party to an action to be heard in litigation before a court of law or tribunal. It entails the legal capacity of instituting, initiating or commencement of an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provisions of any existing law.

A challenge of a plaintiff's locus standi is also a challenge of a court's jurisdiction because both the locus standi of a plaintiff and the jurisdiction of a court relate to the competence of the court to adjudicate on a suit. Once the locus standi of a party is challenged, the issue has to be resolved first before any consideration of other matters.

If a plaintiff lacks locus standi, the proper order the court should make is to strike out the suit. See Douglas v. Douglas (2001) 11 NWLR (pt. 7230) at 57.

This refers to the geographical area of operation of the particular court in question. A State High Court in Enugu for instance has jurisdiction over subject matters and parties within Enugu State. But, it lacks jurisdiction over those in another State. If, for example, parties entered into a contract which was to be performed at Enugu and the defendant resides in Enugu, the State High Court at Enugu will have territorial jurisdiction over the matter. Even if the contract was to be performed in another State, but the defendant resides in Enugu, the High Court is Enugu will still have jurisdiction because it is trite that cases in respect of contract can be instituted where the contract was to be performed or where the defendant resides. But, if the contract was to be performed at Onitsha in Anambra State and the defendant resides at Onitsha, the State High Court at Enugu will lack jurisdiction over the matter. It will be of no moment that the plaintiff resides in Enugu.

Nonetheless, it was observed in this case that the territorial jurisdiction of the court is limited to where the cause of action arose, regardless of where the defendant resides. This occurs in some types of cases, e.g. Election matters.

If a matter is filed in one division whereas the cause of action arose in another, it may be transferred to the division where the cause of action arose except if there is no Federal High Court in that division.

However, in this case, the court held that the offences the defendants were charged with are Federal offences and the jurisdiction of the Federal High Court is nationwide. On appeal, the Court of Appeal allowed the appeal, and stated per Augie, JCA (as he then was) that courts are not usually seized of matters that occurred outside their jurisdiction. It concluded that the reason for the preference of the Kaduna division by EFCC was forum shopping which the Court frowns at.

Jurisdiction is a threshold matter and should be raised at the earliest opportunity. To the mind of the court, jurisdiction does not appear to be in the tradition of best practices to wait until a case goes on appeal to the Court of Appeal or Supreme Court before the issue of jurisdiction is raised for the first time. The impact of such practice on our judicial system as well as the frustration it may engender in litigants is better imagined than experienced.

By virtue of section 232(1) of the 1999 Constitution as amended, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and the State and in a dispute between the States, in so far as it involves any question of law or fact on which the existence or extent of legal right depends. See also A.G. Federation v. A.G. Abia State (2002) 6 NWLR (pt. 764) p. 542.

In A.G. Lagos State v. A.G. Federation, the Supreme Court declined original jurisdiction to entertain the action and struck it out. The apex court held that the plaintiff had approached the wrong court because its claim clearly relates to revenue of the Government of the Federation, consequent upon the taxes of one of its agencies levies, and/or seeks the interpretation of the Constitution as to how the operation of the Constitution affects the 1st defendant or any of its agencies.

The Supreme Court further held that it is the Federal High Court that is imbued with the jurisdiction to the exclusion of any other court in civil causes and matters relating to the revenue of the Government, connected with or pertaining to taxation of companies and other bodies, the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies.

It is trite that the original jurisdiction of the Supreme Court cover disputes between the Federation and the State(s) or between the States inter se. In this case the Supreme Court distinguished between Federation of Nigeria and Federal Government of Nigeria for the purpose of when the original jurisdiction of the Supreme Court can be invoked under section 232(1) of the 1999 Constitution. It stated as follows:

"It is now beyond dispute that the Federation of Nigeria is distinct and separate from the Federal Government of Nigeria which often, is a product of election. On the other hand, the Federation of Nigeria remains intact for all times; all things being equal. The two are not synonymous at all. To invoke the jurisdiction of this court under the above stated section 232(1) of the Constitution, there must be a dispute between the Federation and/or more States as component parts of the Federation or between States, inter se. Since the Federal Government is not expressly mentioned in the said section, it is excluded by implication."

This is a contrast to the earlier decision of the court in AG, Kano State v. AGF (2007) 3 SC 59, where the court held that the word "Federation" in section 232 of the 1999 Constitution bears the same meaning as "Federal Republic of Nigeria." In the lead judgment delivered by Mohammed (JSC), the Court Stated: By virtue of section 318 of the 1999 Constitution of the Federal Republic of Nigeria, "Federation" means the "Federal Republic of Nigeria".

The correct party in an action by or against the Federal Government is the Attorney General of the Federation, while in an action by or against the State Government it is the Attorney General of the State concerned. By virtue of section 3 of the Supreme Court Additional Original Jurisdiction Act of 2002, the correct party in an action against the National Assembly is the National Assembly while in the case of the House of Assembly, it is the Speaker of the House of Assembly. See AG Ondo State v. AG Federation (1983) 2 SCNLR 269.

Nevertheless, in this case, rather than commence the action in the names of the Attorney General of the Plateau State and the Speaker of Plateau State House of Assembly as the plaintiffs, it was commenced in the names of Plateau State of Nigeria and House of Assembly of Plateau State as the plaintiffs. The Supreme Court took the view that this was a mere procedural which could be waived or overlooked.

The court further held, in order to invoke the original jurisdiction of the Supreme Court to entertain an action by a State Government, the benefit must accrue to the State as a corporate entity. If the benefit of the action accrues to an individual such as the Governor of the State in his personal capacity for instance, the Supreme Court will be entertain the action.

It is trite that courts only entertain live issues, not hypothetical or academic questions. The Supreme Court is no different. It will not involve itself in a mere academic exercise. If the action purporting to be brought under the original jurisdiction of the Supreme Court does not raise any dispute involving any question of law or fact upon which the existence or extent of a legal right depends, it will be held to be incompetent and ought to be struck out.

In this case, the court observed that the Court of Appeal's original jurisdiction can be invoked in respect of election petitions challenging the validity of election to the office of the President of the Federal Republic of Nigeria as conferred by section 239(1)(a) of the 1999 Constitution as amended. Other circumstances in which the original jurisdiction of the Court of Appeal may be invoked are where: The term of office of the President or Vice-president has ceased; or The office of the President or Vice-President has become vacant. See also Egolum v. Obasanjo (1999) 7 NWLR (pt. 611)

In this case, the court held that the decision of the National Industrial Court was not appealable since the National Industrial Court is not listed in section 240 of the 1999 Constitution as one of the courts whose decisions are appealable to the Court of Appeal. Nonetheless, the court further held that it had jurisdiction to hear an appeal from the National Industrial Court on issues boarding on fundamental rights.

Still in line with this reasoning, in the latter case of Lagos Sheraton Hotels and Towers v. HPSSSA (2014) 14 NWLR (pt 1426), the Court held that there is no right of appeal from the National Industrial Court to the Court of Appeal in civil matters except in fundamental rights matters.

The position of the law has now changed. In Skye Bank v. Iwu (2017) LPELR- 42, the Supreme Court held that all cases are appealable from the National Industrial Court.

The Supreme Court held that all cases are appealable from the National Industrial Court. This decision has now put paid to arguments on the issue.

NOTE: The decisions of the Court of Appeal in respect of appeals from the National Industrial Court and from the National and State Houses of Assembly Election Tribunals are final and not appealable to the Supreme Court. See s. 243(4) 1999 Constitution as amended by s. 5 of the 3rd Alteration Act, 2010 and s. 246(1) 1999 Constitution as amended by s. 8 of the 2nd Alteration Act, 2010.

In this case the court observed that the mere mention of a subject matter in a case does not automatically vest jurisdiction in the case in the case in the Federal High Court simply because that subject matter is listed in section 251 of the 1999 Constitution as amended. The claim must be examined to determine whether or not the cause of action is one that actually falls within the jurisdiction of the Federal High Court. See also 7Up Bottling Co. Ltd. v. Abiola and Sons Ltd. (1989) 4 NWLR (pt 114) 229; (1995) 3 NWLR (pt 383) 262.

Here the court held that the admiralty jurisdiction was conferred on the Federal High Court by section 9 (i) (d) of the 1973 Act but as the Decree does not define the scope of the admiralty jurisdiction, the limit of the jurisdiction of the court is understood as prescribed by the Administration of Justice Act of England 1956.

By section 7 (i) (g) (h) of the 1956 English Act, the Admiralty jurisdiction of the High Court covers:

1. Any claim for loss or damage to goods carried in ship.

2. Any claim arising out of any agreement relating to the carriage of goods in ship.

In this case, the court held that the cause of action to cover admiralty jurisdiction must inter alia have arisen on the high seas. The goods must have been lost when they were being carried in ship as cargo and not after they had been offloaded from the see.

There was a controversy surrounding the concurrent jurisdiction of the Federal High Court and the State High Court to try fundamental rights cases. In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, it was held that the Federal High Court can only try fundamental rights cases arising from matters over which it has jurisdiction under S. 251 of the Constitution. In Grace Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208, it was held that both courts can exercise jurisdiction irrespective of the subject matter.

However, in the above case the Supreme Court settled this controversy when it held that both the Federal High Court and the State High Court can try fundamental rights cases irrespective of the subject matters of enforcement. See also Federal University of Technology Minna v. Olutayo (2018) NWLR (pt. 1617).

The FREP (Fundamental Rights Enforcement Procedure) rules 2009 contain the procedure to be followed in the enforcement of fundamental rights in the courts of law in Nigeria. They were made in an attempt to simplify the practice and procedure for the enforcement of fundamental rights in Nigeria. It is a rule of strict application.

In this case, the Court of Appeal noted as follows:

"I think an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 is a peculiar action. It is a special action. The procedure is provided by the Rules which were made pursuant to section 42 (3) of the 1979 Constitution. For the court to have jurisdiction, the procedure specifically provided for must be strictly followed. As I have already stated earlier in this judgment, the rules have the same force of law as the Constitution itself."

Section 46(1) and (2) of Chapter IV of the 1999 Constitution as amended vests jurisdiction over enforcement of fundamental rights on the High Court.

The Court of Appeal followed the reasoning in Tukur's case. The respondent lodged a complaint with the police about threat to his life. The police invited certain persons, including the respondent and 1st appellant in the course of their investigations and advised them to maintain peace. The community then set up a committee of 12 to look into the matter. The 2nd -5th appellants were members of the committee. The committee recommended that the respondent should give a live cow and the sum of 10, 000.00 to the traditional ruler, being the 1st appellant, in order to appease him, the respondent refused. The appellants then branded the respondent an enemy and stripped him of his chieftaincy title. They physically blocked his business premises to prevent customers from doing business with him and he thereby lost millions of naira. The respondent filed an action for enforcement of his fundamental rights at the Federal High Court. The appellants raised an objection on the ground that the Federal High Court had no jurisdiction to entertain the subject matter. It was overruled. They appealed to the Court of Appeal sitting in Calabar division. The Court of Appeal upheld the objection and stated Per Edozie, JCA as follows:

"I entertain no doubt in my mind that the respondent's application for the enforcement of his fundamental rights in accordance with the reliefs sought is not cognizable before the Federal High Court as those reliefs do not touch or raise from matters within the express jurisdiction of the Court. The learned judge of the court below was therefore in grave error to have held otherwise."

Rather than strike out the substantive application, the Court of Appeal in exercise of its power under Section 16 of the Court of Appeal Act transferred the matter to the State High Court sitting at Ugep for determination.

Under the 1979 Constitution, the State High courts were formally courts of general and wide jurisdiction limited only by provisions of the constitution that expressly exclude or curtail their jurisdiction. In this case the Supreme Court held that the State High Court can exercise concurrent jurisdiction on matters upon which the Federal High Court can exercise jurisdiction. See also Awoniyi v. Board of Customs and Excise (1990) 1 NSCC. 103. In recent time according to the 1999 Constitution, the jurisdiction of the State High Court is limited by section 251 of the Constitution, which confers exclusive jurisdiction of the Federal High Court in certain matters. Certain matters like matters pertaining to a banker-customer relationship and fundamental rights matters are concurrently adjudicated upon by both the Federal High Court and the State High Court.

A dispute arising from a banker-customer relationship, both courts share the jurisdiction to adjudicate on same. The proviso, the court said, limits the exclusivity of the jurisdiction conferred on the Federal High Court in the preceding subsection but not to divest the Court of the jurisdiction.

Matters of reference of questions of law as to interpretation or application of the Constitution from inferior courts to the Federal and States High Courts, under S. 295 (1) of the 1999 Constitution is also concurrently shared by both courts. The matter must be "a substantial question of law.

Once the Supreme Court has pronounced on a provision of the Constitution, the question of interpretation or application of same ceases to be a substantial question of law to be referred.

The Supreme held in this case that sections 3(1) and 9 of the Failed Bank Decree which conferred exclusive jurisdiction on the Federal High Court in banker/customer cases are inconsistent with section 251(1)(d) of the 1999 Constitution because the section has been interpreted as conferring concurrent jurisdiction on the Federal High Court. Although this decision in Jammal Steel Structure LTD. v. African Continental Bank LTD. (1973) LLJR-SC has been criticized on the ground that the proviso was meant to qualify paragraph (d) in section 251(1)(d) but that the Supreme Court interpreted it to qualify all section 251, it is still the current position of the law.

In this case, the Supreme Court held that in a dispute arising from a banker-customer relationship, both courts share the jurisdiction to adjudicate on same. The proviso in section 251(1)(d) of the 1999 Constitution, the court said, limits the exclusivity of the jurisdiction conferred on the Federal High Court in the preceding subsection but not to divest the court of the jurisdiction. See also NDIC v. Okem Enterprises (2004) 4 SC (pt. 2) 77.

In respect of banking matters outside the ordinary banker/customer relationship, such as banking policy issues, the Federal High Court will have exclusive jurisdiction. In this case, the Supreme Court held that the matter bordered on negligence in relation to banking and that the respondent was not a customer of the appellant bank and so the matter was not an ordinary banker/customer case and as such the Federal High Court has exclusive jurisdiction.

The respondents were employees of NEPA and their employment was terminated after participating in a strike action in August 1994. They field separate actions seeking injunction, reinstatement and nullification of their termination and the actions were later consolidated. It was the contention of the appellant that the State High Court had no jurisdiction to entertain the claims in view of the provisions of section 230 (1)(q)(r)(s) of the 1979 Constitution as amended by Decree No 107 of 1993. Neither the High Court nor the Court of Appeal was persuaded by this contention. On further appeal, the Supreme Court held as follows:

a. An action for declaration and injunction to nullify the decision of the Federal Government or its agency comes within section 230(1) (s) and is within the exclusive jurisdiction of the Federal High Court.

b. Section 230 (1)(q) (r) takes away from the jurisdiction of the State High Court and confers same exclusively on the Federal High Court in matters in which the Federal Government or any of its agencies is a party irrespective of the nature of the claim in the action.

c. The proviso to section 230 (1)(q)(r)(s) merely extends the scope of actions over which the Federal High Court has exclusive jurisdiction to include claims for damages, injunctions and specific performance where the action is based on any enactment, law or equity.

We must point out however, that although the leading judgment in this case delivered by Ogundare JSC firmly stated that once the Federal government or its agency is a party in an action, that it is the Federal High Court that has jurisdiction over the action, we are not unmindful that in the concurring judgment of Niki Tobi JSC, His Lordship was of the view that subject matter should also be considered. He stated as follows:

"In construing section 230(1) of the 1979 Constitution as amended, two important matters arise. They are the parties in the litigation as well as the subject matter of the litigation. The court must consider both."

See also Olutola v. Unilorin (2005) 123 LRCN 217; Ayeni v. University of Ilorin (2000) 6 NWLR (pt 644) 290; Oloruntoba-Oju v. Dopamu (2008) 7 NWLR (pt. 1085)

Here the issue was whether the High Court of Delta State, Asaba, had the requisite jurisdiction to entertain the action which was between an individual and an agency of the Federal Government. The Supreme Court referred to NEPA v. Edegbenro (Supra) and stated again that the clear intendment of the modification to section 230 of the 1979 Constitution by the Constitution (Suspension and Modification) Decree No. 107 of 1993 was to confer on the Federal High Court exclusive jurisdiction in respect of matters specified under sub-section (1)(q)(r) and (s). The proviso to the section does not whittle down the exclusive jurisdiction.

According to the apex court, a careful reading of paragraphs (q)(r) and (s) of section 230(1) reveals that the intention of the law makers was to take away the jurisdiction of the High Court actions in which the Federal Government and its agencies are parties. This meant that a State High Court no longer had jurisdiction in such matters. The apex court also stated that where there are conflicting decisions of the Supreme Court, an inferior court should follow the latter decision.

In this case the apex Court held that where an action is based on simple contract and in matters of simple contract, the Federal High Court has no jurisdiction to entertain it. Whether or not the Federal Government or its agency is a party is immaterial. See also Matthew Ikpekpe v. Warri Refinery (2018) LPELR - 44471. This case clearly show that it is not in every case in which the Federal Government is a party that the Federal High Court will have exclusive jurisdiction. See also Adelekan v. Ecu-line NV (2006) 12 NWLR (pt 993) 33 at 52; Nkuma v. Odili (2006) 6 NWLR (pt 977) 587 at 604.

The nature of the subject matter is also important and ought to be considered as well as the parties in order to determine whether the Federal High Court has exclusive jurisdiction over a matter.

The Court of Appeal found that this matter was based on a simple contract entered into by the parties for services to be provided by an independent contractor for the construction agreed to in the contract. The Court had no hesitation in holding that matters involving simple contract are not within the jurisdiction of the Federal High Court.

The Supreme court held that although, the word used in section 22 (2) of the Federal High Court Act is "may", such word must be constructed as imposing an obligatory duty and that it will be absurd to hold that a discretion is given because when a judge of the Federal High Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. See section 26 of the Act for the power of the F.H.C. See also the case of A.M.C. v. NPA (1987) 1 NWLR (Pt. 51) 475; Inah v. Ukoi (2002) 23 WRN 78.

The power to transfer must be in accordance with the rules of practice and procedure applicable to the State High Court. The Supreme Court held that the Lagos State High Court under Section 22 (3) of the Federal High Court Act had no power to transfer a case before it to the Federal High Court after deciding that it had no jurisdiction over such a case. The appropriate step to take is to strike out the action. The rationale for this decision was that the Federal High Court Act being a federal law could not regulate practice and procedure in the State High Court in view of section 274 of the Constitution which vests same in the Chief Judge of the State subject to laws made by House of Assembly of the State. See also A.M.C. v. NPA (1987) 1 NWLR (Pt. 51) 475.

There are however, provisions in the High Court Laws for transferring matters to Magistrates Courts/District Courts. See section 55 High Court Law of Lagos State 2015; section 65 High Court Act of FCT.

Section 1(3) of the National Industrial Court Act which established the Court as one of superior record was in violation of section 6(4)(a) of the 1999 Constitution which empowers the National Assembly or State House of Assembly to establish a court subordinate to the High Court.

Here, the Supreme Court per Chukwuma Eneh (JSC) stated that the National Industrial Court cannot be arrogated to a Court of superior record without an amendment of the provisions of section 6(3) and (5) of the 1999 Constitution. The apex Court also stated that the implication of conferring exclusive jurisdiction in trade disputes upon the National Industrial Court is to exclude the wide powers of the State High Court thus causing a conflict with section 272 of the 1999 Constitution.

It stood to reason them that sections 7 and 11(1) of the National Industrial Court Act were void by reason of their inconsistency with section 272 of the 1999 constitution.

The state High Court and the FCT High Court are both duly constituted by at least one Judge of the High Court. This means that more than one judge of the Court can sit in original, appellate or supervisory jurisdiction; it is not unlawful, provided they are judges of the High Court. Section 63(1) of the High Court Law of Northern Nigeria allowed a Kadi of the Sharia Court of Appeal to sit with two Judges of the High Court when the High Court sits in its appellate jurisdiction.

The Supreme Court in this case held that the section was inconsistent with section 238 of the 1979 Constitution, which is in pari materia with section 273 and 258 of the 1999 Constitution. A Kadi is not a Judge of the High Court and is therefore incompetent to sit in adjudication over an appeal in the High Court. See also Ishola v. Ajiboye (1994) 6 NWLR (pt 352) p. 506.

In this case, the Supreme Court held that section 8 of the Federal High Court Act which vested exclusive jurisdiction in Admiralty matters on the Federal High Court was inconsistent with section 236 of the 1979 Constitution and to the extent of its inconsistency it was void.

To rectify the situation, the Constitution of the Federal Republic of Nigeria (Amendment) Decree No. 107 of 1993 conferred exclusive jurisdiction on the Federal High Court in respect of this matter.

Matters of reference of questions of law as to interpretation or application of the Constitution from inferior courts to the Federal and States High Courts, under S. 295 (1) of the 1999 Constitution is also concurrently shared by both courts. The matter must be "a substantial question of law". See also African Newspapers of Nigeria Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137 at 149; Bamaiyi v. AG. (Fed) (2001) 7 SCNJ 346 at 356; [2001] 8 NWLR (Pt. 715) 270; Akan v. AG (Rivers) (1982) 3 NCLR 881.

Once the Supreme Court has pronounced on a provision of the Constitution, the question of interpretation or application of the same ceases to be a substantial question of law to be referred. See Rossek v. ACB (1993) 10 SCNJ 20 at 60.

In this case, the court held that it is clear that section 262 of the Constitution provides that the Sharia Court of Appeal exercises jurisdiction in respect of matters involving questions of Islamic personal law. See also Usman v. Umaru (1992) 7 SCNJ 388.

Section 41 of the Land Use Act confers jurisdiction on the Customary Court over land which is subject to customary right of occupancy. Here the Court per Olagunju held that appeals from decisions of the Customary Court in land matters will lie directly to the High Court without going through the Magistrate Court.

It was a case filed by a business man against the Government of Nigeria for violation of Community law in closing the border with Benin. The Court ruled that under the Protocol, only Member states could institute cases.

However, in January 2005, the Community adopted an additional protocol to permit persons to bring suits against Member States. But if a matter has already received the attention of the municipal court, the ECCJ will have no jurisdiction over the same matter.

The court held that a requirement for the court to assume jurisdiction is that the application is anonymous and is not pending before another international court.

In all cases it is important to ensure that the correct or appropriate parties are brought before the court in order to avoid the matter being struck out, thereby engendering delay and costs. Also, names of all the parties must be clearly and correctly set out on the originating process. However, if the name of a party is incorrectly set out in the originating process, it may be possible to correct the irregularity upon an application to court.

In this case the court observed that if a person, not being a legal person sues or is sued, the action is incompetent and is liable to be struck out. It is irredeemable. The court per Mocatta J stated as follows:

"No action can be brought by or against any party other than 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 (b) a right to sue or be sued by that name..."

It is important to note that a legal person is either a natural or an artificial person. A natural person is a human being while an artificial person is a creation of law, for example, a limited liability company or a statutory body established by law is an artificial body. Both natural and artificial persons are also referred to as juristic persons.

If the court find out that the plaintiff or claimant is not a juristic person, the proper thing to do is strike out the action. See Akas v. Manager and Receiver of the Estate of Anwadike, the Assistant Chief Registrar, Onitsha Judicial Division (2001) FWLR (pt 71) at 1717; see Adegbite & ors v. Lawal & ors 12 WACA 398.

In this case, the court observed that for an action to be competent, parties must be legal persons i.e. either natural persons or artificially created legal persons, for example a limited liability company. If the legal capacity of a Plaintiff/Claimant or a Defendant is raised, the onus lies on the person claiming that he has capacity to prove his competence to conduct the action. If a party is proved not to be competent to sue or defend the action, he may be struck out of the suit. If the incompetent party is the plaintiff/claimant, the action itself may be struck out.

In Amodu Rufai Shitta & Ors v Momodu Ligali & Ors (1941) 16 NLR 21 @ 23, twelve individuals who described themselves as Executive of the Central Mosque Lagos and who sued in that capacity were held to be nothing more than a collection of individuals with no capacity to sue.

In this case the plaintiff sued as "N. Okechukwu & Sons Trading Stores". The defendant contended that this was not a legal person, whereupon the plaintiff the brought an application to amend the writ to read "N. Okechukwu (trading under the name & style of N. Okechukwu & Sons Trading Stores.)".

The court held that the act of using the business name to commence the action was a "misnomer" because the right person was brought before the court under a wrong name. The position of the law is that in cases of misnomer, upon an application, the writ and other court processes will be amended to bear the correct name. This position has since been adopted and followed in A B Manu & Co (Nig. Ltd.) v. Costan (West Africa) Ltd. (1994) 8 NWLR (pt. 360) p. 112.

The position of the law is that in cases of misnomer, upon an application, the writ and other court processes will be amended to bear the correct name. This position has since been adopted.

It is settled law that where an artificial legal entity is sued, the name of the entity should be described with the exact name of the company as registered under the Companies and Allied Matters Act (CAMA).

If a wrong company name is written, to correct this misnomer, the Supreme Court stated thus:

"It was not enough to complain of the trial judge's refusal to amend; it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name of Shell-BP could not have given rise to any reasonable doubt as to which company was being sued. An amendment of the title of an action cannot be had merely for the asking."

In this case the court allowed the name/description of the defendant as such because the name was admitted by defendant in its pleadings as its name.

Here it was held that where the plaintiff fails to prove his juristic personality that entitles him to sue, the action is incompetent and liable to be struck out.

In this case, the Supreme Court stated as follows:

"...However, that a person sued is not a legal person does not preclude the court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the court, that it was a case of misnomer, such power of amendment is covered by the provisions of Order 32 and such like enactments. The exercise of such power of amendment has been acknowledged in several cases."

In So Safe Table Water Technologies Ltd. v. Ayinoluwa & Anor. (2014) All FWLR (pt. 747) 649, the court held that the learned trial judge was right in granting the amendment as it was a case of a right person sued in a wrong name and that the court has moved away from technicalities to doing substantial justice.

A registered company can sue and be sued in its registered name. Even when such company is in liquidation, they should sue in their exact registered name, although it would be appropriate to indicate the word "In Liquidation".

The court per Uwaifo (JSC) held that the legal personality of a company can only be proved by the production of the Certificate of Incorporation.

Incorporated Trustees are entities registered under Part C CAMA, so they can sue or be sued in the corporate name as designated in their certificate of registration, otherwise the action will be incompetent and struck out.

The statutes creating the body that falls under this group do not state that they are bodies corporate. If the Legislature has created a thing which can own property, which can employ servants, inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority and procurement. This, no doubt is to avoid the possibility of injustice occurring, if for instance, by certain actions they take, they can cause injury to others but cannot be held liable. See also Thomas v. Local Govt. Service Board (1965) NMLR 310; Kpebimoh v. Board of Governors, Western Ijaw Teachers Training College (1966) NMLR 130.

The Supreme Court held that if the law or rules provide that a firm or partnership can sue or be sued in its name, it should be so. See Order 13 Rule 25 Abuja Rules 2018; Order 15 Rule 24(1) and (2) Lagos Rules 2019.

In this case, the court held that there are four types of parties depending on the degree of interest such persons have in the action. These types of parties are:

i. Proper party;

ii. Desirable party;

iii. Nominal party; and

iv. Necessary party.

The court described a proper party as one who has an interest in the subject matter of the litigation, which may be conveniently settled therein. One without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy and concluded the rights of all the persons who have any interest in the subject of the litigation. That a proper party is one whose interest will be affected directed if a relief claimed in the action were granted.

But in Green v. Green (1987) 3 NWLR (pt. 61) 480, the Supreme Court held that a proper party is one who, though is not interested in the plaintiff's claim is however made a party for some good reasons, for example where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind.

A desirable party is one who was not a party originally, and is not even necessary for the just determination of the case, but needs to be a party to the action in order to be bound by the decision of the court. They are persons who will be affected by the decision of the court in the case and as such it is desirable to join them as parties in order that they should be bound by the decision of the court.

For instance, in this case the Supreme Court held that, each of the claims before the court, that is claim for use and occupation of the property and mesne profit, can effectually and completely be decided without the need of joining Rivers State Government as a party to the action. The plaintiff was entitled to pursue these claims and none of them can be said to be improperly constituted. Nevertheless, it is desirable to join it as a party to the proceedings in order that it may be bound by the pronouncement which could be made. See also Green v. Green (1987) 3 NWLR (pt. 61) 480; Col. Hassan Yakubu (rtd) v. The Governor of Kogi State & ors (1995) 9 SCNJ 122.

These are parties without whom the court will be unable to completely and effectually determine the case. They are persons who are not only interested in the subject matter of the action, but in their absence, the matter cannot be fairly dealt with by the court.

In the case of Union Beverages Ltd. v. Pepsi Cola Int. Ltd. (1994) 3 NWLR (pt. 330) 1 at 17; (1994) 2 SCNJ 157, the court held that if a complaint is made against a person and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the action. See also Ojo v. Ogbe (2007) 9 NWLR (pt. 1040) 542 at 558-559. Also, if it is necessary for the judgment in the matter to be made binding on a person, such a person is a necessary party. See Adika v. Oyinwola (2000) 6 SC (pt. II) p. 47 and p. 75; Uku v. Okumagba (1974) 3 SC 35.

The court held that a nominal party is one who though, having some interest in the subject matter of a suit, will not be affected by any judgment of the court, but is nevertheless joined to avoid procedural defects. For example, if an action is brought against the Federal Government, it would be against the Attorney General of the Federation as a party whereas if the action is brought against a State Government, it would be against the Attorney General of the State as the Party.

The court held that it is of no moment that at the time the action is instituted there is no substantive Attorney General. Because the Attorney General is a corporation sole and lives in perpetuity although there may be periods of interregnum.

In this case the court held that it may be possible for the court to waive as a mere irregularity the procedural defect that occurs when an action is commenced by the principal (the Federal Government or the State Government), rather than by the nominal party.

The Supreme Court held in this case that, by implication, the Council of the University and the Vice- Chancellor can sue and be sued considering the nature of the functions, powers, duties and responsibilities given them under the Act although the University of Jos Act has not expressly conferred on them the power to sue and be sued eo nomine.

Registered Business names formerly under part B of CAMA 1990, now under part E of CAMA 2020, can sue or defend an action in the name of their owners and there must be an indication under the name that the owner is trading under the name and style of the business name.

A firm of partners is not an incorporated body, but can be registered as a business name under Part B, CAMA. Here the court held that they can sue and be sued in the individual names of the partners. Other ways are: They can sue and be sued in the name of the firm and one or more partners can sue or be sued as representing the rest.

However, a claimant who proceeds against some of the partners only is entitled to enforce the judgment thereby obtained against those particular partners sued as defendants on record. He is not entitled to proceed against the rest of the partners subsequently for the same claim. See Kendall v. Hamilton (1897) 4 App. Cases, P. 504.

In this case, the court held that partners may sue or defend an action in any of the following 3 different ways, namely:

i. In the name of the firm;

ii. In the names of all the partners of the firm; and

iii. In the name of one or more of the partners as representatives of the firm/partnership. See Iyke Med. Merchandise v. Pfizer Inc. (2001) 10 NWLR (Pt. 722) 540.

It is important to note that any party to the action may apply to the court for a statement of the names of the partners to be furnished or verified on oath or as the court may direct. See Order 13 Rules 25 and 26 Abuja High Court Rules 2018, Order 15 Rules 24 and 25 of Lagos High Court Rules, 2019.

Registered Associations which are registered under Part C of the old CAMA 2004, now Part F of CAMA 2020, can sue and be sued in their registered names. For example, the Registered Trustees of Nigerian Bar Association. See section 590 CAMA 2004 now section 830 (1) CAMA 2020.

Registered Associations which are registered under Part C of the old CAMA 2004, now Part F of CAMA 2020, can sue and be sued in their registered names. For example, the Registered Trustees of Nigerian Bar Association. See section 590 CAMA 2004 now section 830 (1) CAMA 2020.

It was held in this case by the House of Lords, that a registered trade union is capable of being sued for breach of contract as a legal entity although it is not an incorporated body. The court further held that the wrong expulsion of the plaintiff amounted to a breach of contract for which the union is liable in damages. The power to sue and be sued in its name subsists as long as the Trade Union is registered under the Trade Union Act. They are suable in their registered name in contract and tort and under the Trade Union Act.

Persons under disability include infants, lunatics or persons of unsound mind. In accordance with s. 277 Child Rights Act, No. 26 2003; S. 2 Children and Young Persons Law, Lagos, a child is a person under the age of 18 years. Such persons lack legal capacity to sue or be sued in person.

In this case the court held that where an infant is suing by his next friend, that fact should from the inception of the case, that is, from the issuance of the Writ of Summons, be reflected in all the papers filed, like in the case of a representative capacity. It must be pleaded and supported by evidence.

A guardian (or next friend) may be a parent or other relation or friend to the person under disability, but not a mere volunteer. A preferable guardian is the father of the person with disability.

In an action involving an infant as claimant (or plaintiff as the case may be) or defendant, the correct way to set out the name as party on record is by placing the name of the infant first, indicating that he is an infant, suing by the next friend whose name then follows.

In this case the court observed that a married couple will sue in their respective names and in their personal capacities as individuals. Following the Married Women Property Act 1882 as amended in 1893, married women sue in their personal capacities as individuals in their own rights. It is not proper for a married couple to sue or be sued as "Mr. and Mrs. ESAN".

Where there are numerous persons having the same interest in one matter, one or more of such persons may sue or be sued or may be authorized by the court or judge in chambers to defend the matter on behalf of the others. Examples include suits by or against executor/ administrators, trustees, holders of Power of Attorney, land, family or communal matters.

The reason behind the provisions in the Rules of Court permitting representative actions include: Convenience for the court and the parties, the need not to overcrowd the courts with parties whose interest would be adequately protected by some responsible members of the group. See Order 13 Rule 14 Abuja High Court Rules 2018; Order 15 Rule 12 Lagos High Court Rules 2019.

Those who seek to be represented must authorize in writing the persons to represent them while those who seek to represent the rest are required to obtain leave of court before doing so. In order to obtain the leave of court, an application is made by way of a Motion ex-parte supported by an affidavit sworn to by at least one or more of the persons to be represented and also a written address.

In this case, the Supreme Court held that parties prosecuting or defending in representative capacity have every right to assign one or any of them to step into the shoes of the one handling the case on their behalf to represent the rest of them if exigencies so demand. See also Malari v. Leigh (2019) 3 NWLR (pt. 1659) 332 at 368; African Songs Limited v. Adegeye (2019) 2 NWLR (pt. 1656) 335.

The court, Lord MacNaughten, stated that "given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent".

Similarly, in Alfred Nwanguma & ors v. Ikyaande & ors (1992) 8 NWLR (pt 258) p. 192, the Court of Appeal held that there must be common interest and common grievance and the relief sought by the claim must be beneficial to all of them. See also Adediran & anor. v. Interland Transport Ltd. (1991) 9 NWLR (pt. 214) p. 155.

The Judgment in a representative action is binding upon all who were represented, regardless of whether or not they were specifically named in the court processes or physically present during proceedings. They will be deemed to have been present during the proceedings.

It was held that it is an established principle of law that a party can only sue as a lawful attorney in a representative capacity if he has been so authorized by the execution of a power of attorney and that such capacity must be expressed on the writ. If however, at the time the writ was taken out, the party was not so authorized, but was subsequently vested with such power, an amendment may be allowed by the court to reflect such capacity.

The court held that where there is no authorization given to sue in a representative capacity from the beginning of the trial until judgment, the action will be taken to have been instituted in a personal capacity.

Where a respondent wishes to challenge the capacity and authority in which a person or persons sued in a representative capacity, he should do so by way of motion on notice or preliminary objection. He cannot challenge that capacity by statement of defence or counter-affidavit.

Joint claimants must have the same interest or joint interest in the subject matter of the action. They are not allowed to put up conflicting claims, interest or reliefs. It is desirable also that they should maintain the same counsel, but where they maintain separate counsel, the counsel should work towards achieving the same goal.

In this matter the Supreme Court held that:

"It is no doubt desirable that intending co-plaintiffs should make sure that no conflict of interest or any division of opinion between the original plaintiff and themselves is likely to arise, for co-plaintiffs will not be allowed to severe or take inconsistent steps, and ought to be represented at the trial by the same solicitor or counsel."

Where a claimant is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, so that the question as to which is liable and to what extent may be determined as between all parties. The aim of joinder of parties is to avoid multiplicity of actions, save time and avoid abuse of court process. See Ogolo v. Fubara (2003) 5 SC p. 141 at 158; AGF v. AG Abia State (2001) 7 SC (pt. 1) p. 32.

Here two drivers of different vehicles collided with and caused damage to the plaintiff. The two drivers were blaming each other for the damage. The court recognized that it was proper for the plaintiff to sue both parties and claim damages severally and in the alternative, but not jointly.

All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimants as may be found to be entitled to without any amendments. See Order 13 Rule 1, FCT High Court (Civil Procedure) Rules 2018 and Order 15 Rule 1, High Court of Lagos State (Civil Procedure) Rules 2019.

Both sections of the FCT High Court (Civil Procedure) Rules provide that any person may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.

In this case, the plaintiff and others were detained by District Officer Newington. They jointly sued the defendants for false imprisonment. The court observed that although the above provisions cover joinder of parties, they do not cover joinder of causes of action. It held that each of the plaintiffs had a separate cause of action which may be determined on the respective damages suffered by them.

In this case the court held that a misjoinder or non-joinder is not fatal to the action. No proceedings shall be defeated by reason of misjoinder or non-joinder of parties as the court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See Order 15 Rule 16(1) Lagos rules and Order 13 rule 18 Abuja rules. The Supreme Court held in Dantsoho v. Mohammed (2003) 2 SC p. 42 at 55, that misjoinder and non-joinder is a procedural irregularity. Also in the old case of Minister of Lagos Affairs v. Onigbongbo Community & ors (1961) WNLR p. 245, it was held that non joinder or misjoinder is not a ground to defeat an action and that the rule covers even an originating summons.

In this case the court held that either party can apply to court for joinder or for striking out in the case of a misjoinder. Where there is no complaint against a person, the non-joinder of that person will not affect the just determination of the matter and issues joined. If however, the non-joinder will lead to injustice, it may lead to setting aside the judgment on appeal.

In a case of non-joinder, the court has a discretion which it may exercise suo motu or on the application of either party to order the joinder of a person who ought to be made a party, so that all the matters in dispute will be completely determined between all the parties concerned. The court will not compel a plaintiff to proceed against a party he has no desire to sue. See Lajumoke v. Doherty (1969) 1 NMLR 101; Dolitus Miegete, Compagnie S. A. v. Bank of England (1950) 2 ALL ER 605.

A party desiring to be joined in an action may make an application by motion on notice supported by an affidavit and written address deposing to the reasons for seeking to join the action. All existing parties in the suit must be served with a copy of the application.

Generally the following guiding principles have emerged in considering joinder of parties:

Before parties are joined in the same suit, counsel must consider

i. whether the defendants or any of them would have a good ground for a counter claim against any of the plaintiffs/claimants, which will embarrass the others;

ii. Whether the plaintiffs/claimants are likely to put up conflicting cases inter se: Sodeke & Ors v. Pelu & Ors (1979)3 LRN 227.

iii. The impecuniosity of the other plaintiffs/claimants in case of joint liability for costs.

If it is not convenient to institute one action, the claimant may sue separately and consolidate thereafter. If claimants put up conflicting cases, the court may strike out one of them and make him a defendant.

Joinder can be made at any stage of trial of the case and not on appeals. It must be before judgment is delivered. However, in this case the Court of Appeal order the joinder of a co-plaintiff, whose application had been refused by the lower court, especially where it did not involve amendment of pleadings or affect substantive rights of other parties in the action. See also Yakubu v. Governor of Kogi State (1995) 8 NWLR (pt. 414) 386.

The general rules of court laid down for joinder of parties and from conventional practice, parties may be allowed to intervene in an action where they were not originally claimants or defendants. Any person who makes himself a party to a suit on his own intervention is referred to as an intervener. Example of an intervener can be seen in land matters, where a person puts a defendant upon some land (now in dispute in court) and applies to be joined as co-defendant. See Odahe v. Okujeun (1973) 11 SC 343.

The Supreme Court was considering whether the provisions of the High Court rules of Western Nigeria (Order 7 Rule 10 (1 & 2) were wide enough to admit the joinder of two parties who were interveners. The court held that it was, and also held that Order 15 R 6(2) RSC England permits that a person who is not a party may be added as a defendant against the wishes of the claimant either on the application of the defendant or on his own intervention or in rare cases by the court of its own motion.

The Supreme Court has also laid down the conditions for joining interveners as follows: -

(a) That looking at the facts of the case, the intervener ought to have been joined in the first instance,

(b) That the joinder of the intervener as a party would be necessary to enable the court effectively and completely determine or settle all the questions involved in the matter,

(c) The intervener must satisfy the court that his presence is necessary for an effective adjudication of the matter, and

(d) That the claimant must have a claim against him which the claimant desires to pursue and that his interest is identical with that of the defendant. See Oyedeji Akanbi (Mogaji) & Ors v. Okunola Ishola Fabunmi & ors (1986) 2 SC 431.

The Supreme Court laid down the guidelines to follow in determining whether or not to grant an application for intervention. They are:

i. Whether the intervener ought to have been joined as party in the first instance.

ii. Whether the joinder of the party as an intervener is necessary to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. Where all the facts necessary for the effectually and complete determination of the claim between the parties are before the court, non-joinder of the intervener will not affect the decision.

iii. The intervener must satisfy the court that his presence is necessary for effectual adjudication of the matter.

iv. The plaintiff must have a claim against the intervener which the plaintiff desires to pursue and the intervener's interest is identical to that of the existing defendant.

It is trite that the court will not compel a plaintiff to proceed against a defendant. In considering an application for joinder of an intervener, an important test is whether the judgment will directly affect the intervener by curtailing or interfering with the enjoyment of his right. See Ige v. Farinde (Supra); Oriare v. Government of Western Nigeria & Ors. (1971) 1 All NLR 138.

Generally the courts would not compel a claimant to proceed against a party he does not desire to sue.

The procedure for joining an intervener either as claimant or defendant is by motion on notice, supported by an affidavit and written address to be served on all existing parties.

The test which the court will apply in considering whether or not to grant the application to intervene is whether the relief which the claimant is seeking will directly affect the intervener in the enjoyment of his legal rights. Therefore, the court, will grant an application for intervention by a person who claims to own or have interest in a piece of land, title to which is in dispute in court between two parties.

The general rule is that a dead person has no legal capacity to sue or be sued. A suit or appeal commenced in the name of a deceased party is incurably defective and incompetent. Thus, if a party in a pending action dies, the action abates. See Oketie v. Olughor (1995) 5 SCNJ 217 138.

In this case the court held that if a party in a pending action dies, the action abates. It is only if the action is not a personal one that the cause of action survives the deceased party. The principle is expressed in the Latin maxim action personalis moritur cum persona, that is, a personal action dies with the person.

The effect is that once a sole claimant or plaintiff in a personal action dies, the action abates. Any court process filed in the name of the dead party or any orders made in favour of such a dead party after his demise are invalid. Personal actions that end with the death of the party include, but are not limited to the following examples -- breach of promise to marry, contract of personal service, assault and battery, defamation, enticement and harbouring.

By virtue of section 58(1)(b) of the Bankruptcy Act of 1979, the right to institute and defend actions in relation to the property of the bankrupt vest on the trustee in bankruptcy with the permission of the committee of inspection. Therefore, if an action relates to the property of a party who has been declared bankrupt, an application must be brought to replace his name with that of his trustee in bankruptcy.

Where a defendant is declared bankrupt during the pendency of an action, the claimant may elect to prove in bankruptcy or the trustee may be substituted as a defendant.

This is a special procedure whereby a defendant to an action or a claimant who is a defendant to a counterclaim can apply to join a third party as his defendant. It is in effect a new suit between the defendant in the original action and the third party. The third party becomes "the defendant's defendant". It is also possible for a defendant to apply to join his co-defendant as a third party. In effect, the defendant is asserting a claim against the third party which is somehow related to the claim for which the claimant has sued him. The aim is to avoid a multiplicity of actions.

The Supreme Court held as follows: the mere service of a third party notice does not make the person on whom it is served a defendant to the main action but make him only a defendant vis-à-vis the person serving the notice. In the main action, the rights of the plaintiff and the defendant are determined without reference to the defendant' claim against the third party, but when these rights have been ascertained, it is then open to the person brought in as third party to have all relevant disputes determined between him and the person serving the notice. In doing this, the third party may defend himself in any way in which a defendant in an action at the suit of a plaintiff may defend himself.

Third party proceedings are special proceedings created by the rules of court in favour of a defendant only, or in favour of a Claimant who is himself a Defendant in a counterclaim. The procedure allows the joinder of a third party by the Defendant not for the purpose of prosecuting the suit in court but for the purpose of prosecuting another action between the Defendant and the third party in the same suit between the Defendant and the Claimant. The objective of a third party proceeding is to prevent multiplicity of actions. See also Bank of Ireland v. Union Bank of Nigeria Ltd. (1998) 7 SCNJ 385.

A sum is said to be liquidated if it is certain or reasonably ascertainable. See also the case of Kabiru v. Ibrahim (2004) 2 NWLR (pt. 857) 526 at 551 where the court interpreting the provisions of the High Court (Civil Procedure) Rules in respect of Undefended list explained that liquidated sum by its very nature, is usually a debt or an amount previously agreed on by the parties or which can be precisely determined or ascertained from the terms of the agreement.

The venue for commencement of actions against/for corporate bodies is the place of residence, i.e., the place of its central control and management. See also Unit Construction Company Ltd v Bullock (1960) AC 351.

Note: that for purposes of service of processes, office does not mean head or registered office of corporate bodies. Such service can validly be rendered at any of its branch offices. See Bello v NBN (1992) 6 NWLR (pt. 246) 206. Note also the case of Mark v Eke (2004) 5 NWLR (pt.865) 54 says proper personal service must be at company's registered office.

Actions commenced in the wrong judicial divisions may be tried there unless the Chief Judge otherwise directs. See Order 4 Rule 3 Lagos Rules; Order 3 Rule 6 Abuja Rules.

In Mbadinuju v. ICN Limited (2007) 15 NWLR (1058) 524 at 535-6, the court observed that it has become a fairly settled principle of law that the question of commencing a suit in on judicial division or another is a question of forum conveniens and not one of jurisdiction. The discretion is that of a trial court to determine which is the appropriate court or forum conveniens considering the interest of justice. He (the trial judge) is enjoined to consider:

a. The principle of effectiveness; and

b. The principle of submission.

Therefore, a challenge to the action on grounds of lack of jurisdiction is bound to fail. There is only one High Court in a state and the divisions are just branches of the same court. See Olaniyan v. Oyewole (2008) 5 NWLR (pt. 1079) 114; M.B.A. v. Owoniboys Tech. Services Ltd. (1994) 8 NWLR (pt. 365) 705. Consequently, the transfer of a judge from one judicial division of a High Court to another does not rob him of jurisdiction unless there is a specific fiat form the Chief Judge to the contrary. Judicial divisions and fiat being strictly administrative matters, they do not go to the issue of jurisdiction.

The Supreme Court defined a writ of summons as a writ by which under the Judicature Act of 1873-1875, all actions were commenced. In simple language, it is a written order of a court or judge requiring specific action by a person or entity to whom the writ is directed. That is, a writ of summons orders the defendant to enter appearance and answer to the claims of the claimant.

It is used usually for contentious actions where there is uncertainty as to which process to employ, use writ of summons. It is the default mode of commencement of action.

The column for indorsement of claim is usually on the reverse side of the writ of summons in the standard form and it was held that where the plaintiff typed the indorsement on a separate paper and gummed it to the reverse side of the wit, there was non-compliance with the provisions of Order 3 Rule 4 of the High Court Rules in Lagos at the time which provides that the writ shall be in the form set out in the Schedule or Appendix thereto.

The parties to a suit in the High Court sitting in its original jurisdiction are the claimant and the defendant. The names of the parties and the capacities in which they sued or are suing must be clearly indorsed. The persons recognized by law for this purpose are living persons. It is not permitted for a suit to be commenced in the name of a dead person or to be against a person who has died. This is not to say that the estate of a deceased person cannot sue or be sued.

Legally speaking, without an indorsement of claim, there is no suit. The Rules of the High Court requires that every writ be endorsed. There are two types of indorsements: the general endorsement and special endorsement. The general writ need not contain all the details but sufficient particulars to let the defendant know why he is commanded to appear before the court. The necessary details of the claim can then be contained in the statement of claim, which upon being filed, naturally supersedes the writ.

The Rules provide for addresses of the claimant and his counsel which addresses must be within jurisdiction. Where the claimant and or his counsel live or carry on business outside jurisdiction, they must include an address within jurisdiction which shall include their phone number and email address although phone number and email address is not required in Abuja in the case of the claimant acting for himself.

It was held in this case that where a writ does not contain an address for service, it does not render the writ or the proceeding a nullity.

It is trite that the person who can sign a legal process is one who is entitled to practice law and whose name is on the roll of legal practitioners and not a firm of legal practitioners. Where signed by a Law firm, such endorsement is null and void.

The Supreme Court held that the motion in this case signed by a law firm was incompetent as the firm is not a legal practitioner as defined by the Legal Practitioners Act.

In Whilzy Ind. (Nig.) Ltd. v. U.B.A. Plc. (2014) All FWLR (pt. 741) 1580 the writ of summons was signed in the name of a law firm without the name of the lawyer whose signature appeared therein. It was held to be inappropriate. See Tanimu v. Rabiu (2017) All FWLR (pt. 900) 391, where the Supreme Court held that the anomaly generated by a law firm signing a notice of appeal cannot be cured by affixing NBA stamp and seal. See also Alawiye v. Ogunsanya (2014) All FWLR (pt. 668) 800; Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486.

It is settled that where a lawyer signs for another lawyer, the name of the lawyer signing for a named lawyer must be clearly stated. Thus, where an unnamed person signs for a named lawyer, the process is incurably bad.

If a person acting under a Power of Attorney sues on behalf of the donor, it is the name of the donor not that of the donee that should appear on the writ.

This system is now part of the Rules of Court and intention of the maker of the Rules of Court is to ensure that only serious and committed litigants with prima facie good cases and witnesses to back up their claims come to court and fewer lame duck claims find their way into the court.

The philosophy behind the front loading procedure is to quicken the dispensation of justice and judges of the High Court where such procedure is adopted are no longer adjudicators/ or umpires interested in the trial of disputes in the court room only but have become managerial judges who must effectually utilize the technique and tool of the case management and judicial control to achieve/facilitate just, efficient and speedy dispensation of justice.

Under the front loading system, it is clear that where a witness does not depose to a statement before the court, he cannot ordinarily testify before the court because his job in-chief at the trial is to adopt his statement on oath before the court. Thus, where a party desires to call additional witness other those whose statements are before the court, he must obtain the leave of court to get the person to testify. In Lasun v. Awoyemi (2009) 16 NWLR (pt. 1168) 513, the court held that witnesses under subpoena are not required, for obvious reason, to have their statements on oath frontloaded.

This requirement of filing upfront the statement of claim and these other documents with the writ is what we refer to as the front-loading system. The registrar is empowered to reject a writ that is not filed with these documents and if he should accept them in error, the court will still strike out the writ.

However the case of Olaniyan v Oyewole (2008) 5 NWLR (pt. 1079) 114 says that such failure should be treated as an irregularity.

An unsworn statement of a witness or any other defect in a statement is a mere irregularity which will not invalidate or render inadmissible such statement or any document tendered therein. Whatever defect in the original oath is cured by the second oath made in court before the judex prior to the adoption of the statement by its maker and his subsequent cross- examination. See Agagu v Mimiko (2009) 7 NWLR (pt.1140) 342 INEC v AC (2009) 2 NWLR (pt. 1126) 524 at 615.

Payment of fees is a mandatory requirement to commence an action in court. Where filing fees are not paid, a condition precedent has not been fulfilled and the court lacks jurisdiction.

The payment covers filing, oaths, certification (where necessary) and service. Only government agencies are exempted from payment of court fees. Apart from this, the court may waive fees for indigent persons. Thus, unless a claimant is a government agency or has had it fees waived for him, failure to pay filing fee renders the suit incompetent. See Onwugbufor v. Okoye (1996) 1 SCNJ 1.

Every writ of summons must contain the heading of the court showing the judicial division, the name, description and capacities of the parties (eg where they sue in representative capacity, this must be stated on the writ), the address of the Defendant within jurisdiction.

In this case, the court held that a fundamental requirement of a writ is the nature of the claim against the Defendant which is normally endorsed on the reversed side of the writ not a separate paper. Endorsement of the claim on an attached paper is a fundamental defect. This is what is called general endorsement. Special endorsement is when it is accompanied with a statement of claim. Where however the claim is not contained on the reverse side, a continuation in a separate paper is allowed. See Alatede v Falode (1966) All NLR 101 at 103. With the advent of the front-loading system, it may be safe to say that all writs are specially endorsed.

Apart from the requirement as to endorsement of the claim and the address of the claimant within jurisdiction which are fundamental, every other defect may be treated as mere irregularity which can be rectified by amendment. Such objection to defects must also be timeous. Time for entering appearance is usually stated on the writ not in the Rules. In Abuja, it is 14 days while Lagos is 42 days.

A suit is said to have been commenced by a claimant as soon as he has presented all the documents constituting the originating processes to the Registrar and has paid the prescribed fees for the action. The writ need not be issued by the Registrar before he can be said to have commenced an action. In this case the court held that:

"The test for commencement of action both according to English Rules and Local Rules of court is whether the plaintiff has done all that is required of him by the law to commence the action. From the time the plaintiff is Nigeria delivers his application to the Registrar and he pays the necessary fees, it will be correct to say that an action or suit has been commenced"

See also Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387.

In accordance to the Rules, a writ is said to be issued when the Registrar signs same. Under the Lagos Rules, it is issued after the Registrar seals the writ. Where a claimant has done all that he needs to do but, due to no fault of his, the Registrar fails to issue the writ, the claimant has no blame.

In this case, the court held that once the requirements of the relevant Rules of court have been satisfied, any error in the issuance of the wit of summons cannot be visited on the claimant.

A concurrent writ is only one writ which could be served within the state of issue and outside it. Being only one writ, it has to be the same, carrying the necessary endorsements as the one served outside jurisdiction.

A concurrent writ may be used where some defendants reside within jurisdiction while others reside outside. In such a case, the ones for service outside jurisdiction will have the endorsements required by the Sheriffs and Civil Process Act while the ones within jurisdiction will not.

In Lagos, where the writ cannot be served before the expiration of the validity period, the court may on application made to it before the expiration, renew the life of the writ for a further period of 3 months. Such renewal shall not be more than two upon good cause and prompt application so that no originating process shall be in force for longer than 12 months. Such a suit may be struck out. O. 8 rr. 6 & 7 of Lagos.

In Lagos, application for renewal must be brought before the expiration of the 6 months period. O. 8 r 6(1) Lagos. Here, the court dismissed an application for renewal which was brought after the expiration of the writ on the ground that the writ had become void at the time of the application. However, in Kolawole v Alberto (1989) 1 NWLR (pt. 98) 382, the Supreme Court held that the application may be made either before or after the expiration of the writ and that the rule regarding extension of time also apply to renewal of writs. Note however that the above decision was given under the old rule.

Application for renewal is by motion ex parte supported by affidavit disclosing the reason for failure to serve within the life span of the writ. In both rules now there is a Fast Track procedure in which matters allocated to it must be concluded and judgment delivered within 9 months. See O 59 r. 1 Lagos; O.37 r.4 Abuja does not state the time limit.

Appearance as used in entry of appearance is a legal term used to depict the first legal step that a defendant is expected to take after a court process of originating nature is served on him.

In this case, the Supreme Court emphasized the importance of memorandum of appearance. The court held inter alia:

"The position of the Law is that the Memorandum of Appearance is simply to indicate that the suit will be contested. If therefore, the defendant fails to enter appearance, the suit will be treated as undefended and the plaintiff may proceed to ask for judgment to be entered in his favour or for the case to be set down for hearing."

See also British American Insurance Co. Ltd. v. Edema-Sillo (1993) 2 NWLR (pt. 277) 567.

An appearance is said to be unconditional when the defendant does not have any objection to any of the procedural steps so far taken by the claimant. An unconditional appearance need not be expressly stated. If he simply enters appearance without more, as a general rule, he is said to have entered unconditional appearance. Where a defendant enters an unconditional appearance, it is presumed that:

i. He acknowledges that he has been served

ii. He intends to defend the action

iii. He has submitted to the jurisdiction of the court.

In this case the court held that where a defendant intends to object to the regularity of the proceedings by which the claimant seeks to compel his appearance, he may do one of these three things, viz:

i. Enter a conditional appearance or appearance under protest;

ii. He may then apply to court to set aside the process or proceedings;

iii. He may without entering any appearance, move the court to set aside the service of the writ upon him.

See also Inakoju v. Adeleke (Supra); Sken Consult v. Ukey (1981) 1 SC 6.

It must be understood that the mere fact that a defendant has entered an unconditional appearance or no appearance at all does not preclude him from raising preliminary objection. In this case, the court clarified this position when per Adamu JCA (as he then was) held inter alia:

"Pleadings per se and the entry of unconditional appearance do not amount to taking of fresh steps in the proceedings and would not amount to waiver barring the defendant from bring his objection against the competence of the petition on a fundamental defect especially where the hearing has not yet commenced and no evidence has been adduced. Thus, it does not matter whether or not the appearance is unconditional or that pleadings have been concluded and issues are joined at the time of the objection."

A conditional appearance must show clearly on its face that it is a conditional appearance. It must state that the defendant's appearance is conditional or under protest. By filing a memorandum of conditional appearance, the defendant indicates the following:

i. He acknowledges that he has been served (even if improperly); and

ii. He intends to challenge the jurisdiction of the court; or

iii. He intends to challenge any procedural irregularities in the issuance or service of the originating process.

It is the position of the law that where a defendant enters a conditional appearance, he must take action to raise the objection upon which his conditional appearance is premised within a reasonable time and if he fails to do so, his appearance would be treated as unconditional appearance. See also CGG (Nig.) Ltd. v. Aminu (2015) 7 NWLR (pt. 1459) 577.

As to what amounts to "reasonable time" and "fresh step" in the Rules, the Court of Appeal considering the provisions of paragraph 49(2) of the 1st Schedule of the Electoral Act, 2002, held in Bichi v. Haladu (2003) 14 NWLR (pt. 841) 624 at 650, thus:

"The two questions are related or akin to each other. Because what is a reasonable time for bringing the objection is a question of fact and depends on the actual time or stage in the proceedings when the objection is raised. Similarly, also, what amounts to taking fresh steps in the proceedings depends on the processes so far filed in the proceedings and whether he stage is merely preparatory to the trial or hearing has commenced or is about to commence."

A conditional appearance may also be implied by the step taken by the defendant upon being served with the writ. Where, for example, a defendant simply files a memorandum of appearance together with a notice of preliminary objection or without filing any memorandum of appearance, files an objection (by motion on notice), he will be deemed to be entering a conditional appearance.

It is well-settled that where what the claimant claims is declaration of title to land, the claimant would be required, notwithstanding the non-appearance of the defendant, to apply for the case to be set down for hearing so he can prove his claim. This is because declaration of title is not granted in default of appearance as the claimant is required to succeed on the strength of his case and not the weakness of the defence.

In this case the court held that in determining whether a suit commenced by originating summons raises substantial dispute of fact, the court would consider the nature of the claim and examine the facts deposed to in the affidavit in support. Thus, mere filing of counter-affidavit by the defendant does not make the facts contentious and the proceedings hostile. For instance, originating summons can be used where the issue borders on interpretation of a contract and others.

The Supreme Court emphasized the importance of the originating summons when it held inter alia:

"The merits of the originating summons lies in the fact that proceedings commenced thereby are very expeditiously dealt with. This is so because pleadings are not filed and consequently witnesses are rarely called and examined. Rather, affidavit is mostly used and relied upon. Proceedings for which it is used therefore usually involve questions of law rather than disputed issues of facts. Where it is otherwise, a proper initiation process should be adopted if the proceedings are hostile proceedings, that is, proceedings which the facts are apparently disputable."

See also Eze v. University of Jos (2017) All FWLR (pt. 898); Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423; Jev v. Iyortyom (2014) 14 NWLR (pt. 1428) 575.

This case teaches us on the proper usage of originating summons, which is; to commence an action when it is provided for by the Rules or any written law. It is usually used for construction of a written law or any instrument, deed, will, contracts or other documents or where there is no likelihood of disputes as to facts. See also Adeyelu II v. Ajagungbade III (2007) 14 NWLR (Pt. 1053) 1 at 14; Order 5 Rule 4 Lagos; Order 2 Rule 3 (1-3) Abuja.

Originating summons may also be used where errors in judgments are sought to be corrected. See Unilag v. Aigoro (1991) 3 NWLR Pt. 179 p. 376.

Originating summons is used essentially in non-hostile proceedings, therefore a suit is not fit for originating summons only where there is no dispute of facts. What is contemplated is substantial disputes as to facts. In this case, the Supreme Court explained thus:

"Where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that rise to litigation."

It must be noted that proceedings commenced by originating summons are fought on affidavit evidence, largely based on documents.

The Supreme Court held that where a party wrongly commences an action by originating summons, the trial court need not strike out the action but order pleadings to be filed so that the matter may proceed to hearing. See also PDP v. Atiku (2007) 3 NWLR (pt. 1022) 525 at 541. In the above case, the court also acknowledged the fact the originating summons is for actions that are not contentious on facts.

In the case of Ekasa v. Alscon Plc. (2014) 16 NWLR (1434) 542, the court reaffirmed the above and held further that in the alternative, if the facts in the affidavit have been sufficiently controverted, the judge may also call for oral evidence to resolve the issue in controversy.

Originating motions are often used where the Rules or any written law prescribes for it. It is usually used for prerogative writs or orders such as prohibition, certiorari, mandamus and habeas corpus. Also used for enforcement of fundamental human rights though the Fundamental Rights Enforcement Procedure Rules provides that such action may now be commenced by any originating process approved by the court.

In this case, the court held that where a statute recommends the use of application for commencement, without providing for the procedure, Originating Motion should be used. Parties are referred to as Applicant and Respondent. During the proceedings, the hearing of the motion is the trial.

The determining factor for venue of suits at the National Industrial Court is largely where the defendant resides or carries on business. See Order 2 Rule 1 of the National Industrial Court of Nigeria Rules, 2017. The apparent simplicity of this provision lies in the fact that the defendant need not live in a particular place or have a principal place of business in a particular place before a suit may be commenced in that division against him.

It is sufficient from the above provision that the defendant has a presence in that place. There is only on National Industrial Court in Nigeria. If there is any difference at all with respect to place of commencement, it would go to the question of judicial division and not a question of jurisdiction per se.

The Jurisdiction of the National Industrial Court is nationwide. For administrative convenience, however, the President is empowered to divide the country into such number of judicial divisions as he may think fit. So therefore, a suit commenced in the wrong judicial division would not be defeated.

However, the law gave the President of the National Industrial Court the discretion to transfer the case to another judicial division and unless that discretion is exercised, the court in the division where the matter is filed is at liberty, in fact, is obliged to hear and determine the matter. It follows in the same vein from the above that the term "outside jurisdiction" when used in relation to the National Industrial Court means outside Nigeria.

Consequently, the provisions of section 97 and 99 of the Sheriffs and Civil Process Act dealing with issuance and service of process outside jurisdiction within Nigeria do not apply.

Where a matter arises for which no provisions or adequate provisions are made in these Rules, the Court may adopt and apply any procedure as will in its view do substantial justice to any of the parties concerned in the matter. See Order 1 Rule 9(1) NIC Rules, 2017. For instance as was seen in this case, since there is no express provision on joinder of parties in the NIC Rules, the court employed its discretionary power to adjudicate over the matter.

The NIC Act and the NIC Rules make no provisions for the parties to a civil suit before the National Industrial Court. It would appear therefore, that any natural or juristic person may approach the National Industrial Court in respect of all the cases where jurisdiction is conferred upon the court by the Constitution and the NICN Act. It is therefore, safe to say any of the following may sue or be sued before the National Industrial Court:

i. Any natural person;

ii. Any registered trade union

iii. Any unregistered trade association or unregistered trade union; see Irabo v. Ilavbare (2011) 24 NLLR (pt. 68) 289.

iv. Branch unions of registered trade unions;

v. Any Ministry or government agency.

It is noteworthy that neither the Act nor the Rules make provisions for the competence of an individual member of a trade union to bring an action to enforce a right which accrues to a trade union as a unit. In Okeke v. UBN (2011) 22 NLLR (pt. 42) 161, it was held that an individual member of a trade union can only approach the court in such a circumstance only where the trade union refuses to bring such action.

It is noteworthy that neither the Act nor the Rules make provisions for the competence of an individual member of a trade union to bring an action to enforce a right which accrues to a trade union as a unit. In this case, it was held that an individual member of a trade union can only approach the court in such a circumstance only where the trade union refuses to bring such action.

The whole essence of service of court processes therefore, is to give notice to the other party that there is a pending suit against him and to enable him prepare to do the needful. In this case, the Supreme Court held that the object of all types of service, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that they may be aware and able to resist, if they so wish, the prayers sought against them. See also C.B.N. v. A.T. & B.S. Ltd. (2010) 9 NWLR (pt. 1200) 567 at 585; Akeredolu v. Abraham (2018) NWLR (pt. 1628) 510 at 539.

Where the law requires notice to be given to the other party, failure to give such notice renders the proceedings liable to be set aside, at least, as it concerns the proceedings of the day for which the notice was required. Failure to give notice of proceedings to an opposing party in a case where service of process is required, is a fundamental omission which renders such proceedings void, because the court has no jurisdiction to entertain it unless, of course, where the person appears and takes part in the proceedings without complaining.

Service of court processes, especially originating processes, is a condition precedent to the hearing of a suit. The failure to serve a process on a party entitled to service is a fundamental vice which may vitiate subsequent proceedings no matter how well the proceedings may otherwise be conducted. Where there is failure or lack of service, it affects the jurisdiction of the court to entertain the matter. See Olorunyomi v. Akhagbe (2010) 8 NWLR (pt. 1195) p. 48; Sken Consult v. Ukey (1981) 1 SC 6.

The importance of service of originating process cannot be over-emphasized. Although every originating process has a return date, the law is that even after the court has satisfied itself that the defendant has been served with the originating processes, if he fails to attend court, the court should issue hearing notice. The Court of Appeal in this case emphasized the need for service when it held:

"When it became apparent that the 1st appellant was never represented in court for once before, during or after the motion for joinder was moved and granted, the learned trial judge should have ordered hearing notice to be served on the 1st appellant through DHL. This was never done. There was nowhere in the whole of the proceedings up to judgment where it is indicated that the court had to proceed with the business of the day despite the absence of any of the parties because they or their counsel were aware or served with the hearing notice".

Unlike originating processes, service of hearing notice need not be personal. In this case, the Supreme Court held that a phone call from the court is sufficient hearing notice provided the person is given at least 48 hours before the scheduled court date.

Service of notice is not limited only to service of originating processes. Even the failure to serve hearing notice where a person is entitled to notice is a fundamental vice. In the case of ex parte applications, for example, the party who filed the application is entitled to be informed of the date of his ex parte application, even though no other person is entitled to notice.

In Principal, Government Secondary School, Ikachi v. Igbudu (2006) All FWLR (pt. 299) 1420, the court held that hearing notice is necessarily served especially where a case was adjourned in the absence of a party. The court held inter alia:

"...However, right as it was for a judge to be exasperated at the adjournments, it was necessary under the adversarial system while showing disapproval at the repeated absence of a party for the court to issue hearing notice with an ultimatum that unless the defendants show up, the case would be determined in their absence. This ultimatum is part of a standard hearing notice."

In this matter, the court held that when a suit is struck out and a party files a motion to relist, the law enjoins him to serve the notice to relist. Where this is not done, the party entitled to such notice is entitled to apply to set it aside.

In this case, the Supreme Court held that it is not open to every party to make an officious complaint of non-service where he is not the person who has not been served in respect of the proceedings where the orders affect him.

Although not expressly stated, it may be safe to suggest that service of an originating process by any person outside those required by the Rules of court shall be invalid unless the court orders to the contrary. Since the purpose of the process is to bring the suit to the notice of the defendant, where a defendant is served otherwise than by the person authorized to do so, and he enters appearance unconditionally and/or takes other necessary steps to defend the suit, it would appear that such unauthorized service would no longer affect the jurisdiction of the court. See also United Press v. Adebanjo (1969) 1 ALL NLR 431.

As a general rule, service of all originating processes is required by law to be personal. See also Nwankwo v. Kanu (2010) 6 NWLR (pt. 1189) 62. Personal, here mean delivering to a party named therein a copy of the process duly certified as prescribed by the Rules of the Court. See Order 9 Rule 2, Lagos; Order 7 Rule 2 Abuja.

By the Rules, a legal practitioner may, in writing, be authorized by the defendant to accept service of originating process on behalf of the defendant. It is recommended that a judge should take additional steps to ensure that the defendant duly enters appearance to the suit before he can relax and continue with the hearing. Where the Defendant fails to enter appearance after the purported written authority, the court should ensure that the defendant is served personally.

In this case, the Supreme Court admonished courts, thus:

"It is the duty of a court to confirm that there is proper service of the process on the other party who may be affected by the outcome of a proceeding before the court. Where a party is neither in court nor represented by a counsel, the court should not rely on the evidence of its Registrar that there was service of its process. The court should examine the proof of service in order to determine who was served with the process and when service was effected."

Where the defendant is a firm or a partnership, the process may be served on any or more of the partners. Apart from the partners, the process may be served at the principal place of business of the partnership within jurisdiction upon any person who has the control or management of the business at the time of the service. Where, however, partners are sued in their names but on behalf of the firm, each of such partners must be served personally.

In addition, Order 7 Rule 7(3) Abuja provides that where a firm has been dissolved to the knowledge of the claimant before the commencement of the suit, the processes shall be served on every person within jurisdiction sought to be made liable.

Where the defendant is a firm or a partnership, the process may be served on any or more of the partners. Apart from the partners, the process may be served at the principal place of business of the partnership within jurisdiction upon any person who has the control or management of the business at the time of the service. Where, however, partners are sued in their names but on behalf of the firm, each of such partners must be served personally.

In addition, Order 7 Rule 7(3) Abuja provides that where a firm has been dissolved to the knowledge of the claimant before the commencement of the suit, the processes shall be served on every person within jurisdiction sought to be made liable.

Under the Lagos Rules, service of processes on a company is to be done by delivery of such process to a director, secretary, trustee or other senior, principal or responsible officer of the organization or by leaving the process at the registered office or principal place of business of the company or corporation within jurisdiction. See also Order 9 Rule 9 Lagos, 2019.

Where the company is under receivership, then, the provisions dealing with service on a director or secretary would no longer be applicable. This is because when a company goes into receivership, all the powers of the directors are suspended. During receivership, the receiver who is also the manager of the company and the de facto Sole Administrator of the company becomes the only principal officer of the company during that period. So, if there are processes of court to be served on the company during this period, same shall be served on the receiver. See Dagazau v. Bokir International Company Ltd. (2011) 14 NWLR (pt. 1267) 261 at 347.

Where the defendant is a foreign company carrying on business in Nigeria and within the jurisdiction and the cause of action arose within jurisdiction, the originating processes may be served on its principal officer or representative within the jurisdiction. See Order 9 Rule 10 Lagos; Order 7 Rule 10 Abuja.

This rule applies to any other person resident outside the jurisdiction of the court but carrying on business within jurisdiction. The law is well settled that service effected on such authorized local agent is good service in law. In such a case, leave of court is not required before service of court process may effected.

Where the defendant is a foreign company carrying on business in Nigeria and within the jurisdiction and the cause of action arose within jurisdiction, the originating processes may be served on its principal officer or representative within the jurisdiction. See Order 9 Rule 10 Lagos; Order 7 Rule 10 Abuja.

This rule applies to any other person resident outside the jurisdiction of the court but carrying on business within jurisdiction. The law is well settled that service effected on such authorized local agent is good service in law. In such a case, leave of court is not required before service of court process may effected.

It is fairly settled that even where an applicant suggest any of the modes of substituted service recognized by the law, the court still has discretion to refuse it if it is of the view that the mode will not give notice to the defendant.

The fact of this case is that the applicant sought to serve the processes by pasting the notice on the last registered address of the defendant company, but the court refused. The reasoning of the court was that since it was clear that the 1st defendant had ceased to do business and the second defendant had fled to the Eastern part of the country as a result of the raging civil war, it was not certain that the processes could get to the notice of the defendants by that mode. Under the Lagos Rules, the judge clearly has a wide discretion to adopt any mode which he considers just in the circumstances.

It is common practice that where a claimant intends to serve court processes on the defendant by substituted means, he would suggest the mode he considers appropriate, even though the court may see reason to the contrary. The question now is: what happens where the court orders the service of court process be done in a particular manner and the applicant chooses to effect service in a manner different from the order of the court.

In this case the Court of Appeal answered this question when it held:

"...In the application, dated 11/7/96, the plaintiffs specifically asked for leave to issue and serve the writ of summons and other processes on the Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation at their Head Office in Lagos by substituted service through DHL and the court granted their prayer. It was not the court that imposed DHL on the plaintiffs, neither did they apply to serve the processes on the appellant through any other service. The plaintiffs clearly flouted the order of the court and in seeking to justify this stance took umbrage under Nwaosu v. Nwaosu.... This logic cannot be extended to accommodate carrying out substituted service in a manner not ordered by the court. To illustrate the point further, if a court orders that a process be served on a party by publishing say in the Guardian Newspaper, a party cannot justify carrying out the order by publishing the process in the Vanguard Newspapers because its coverage is as wide as Guardian."

Where a defendant enters unconditional appearance to a suit, he is deemed to have been served and properly so. Thus, proof of service is unnecessary where the defendant appears. Where there is any complaint as to service, he is expected to enter appearance conditionally or under protest and raise objection, failing which he would be deemed to have waived any such anomaly. In the same way, where a defendant files a statement of defence to a suit, service is presumed. See also Okesuji v. Lawal (1991) 1 NWLR (pt. 170) 661. The Supreme Court also held in this case that service of court process on the counsel to a party is good service.

Affidavit of service is prima facie evidence of service. In the case of substituted service, the affidavit of service is prima facie proof of service in relation to how and where service was effected. However, affidavit of service is not a conclusive proof of service because this can be challenged by the defendant with cogent evidence indicating that service was not done.

In this case, the court held that the Sheriff, the deputy sheriff, a bailiff or any other officer of court may depose to an affidavit of service. In the case of processes that are not originating processes, a lawyer or his clerk may depose to an affidavit of service and it would be sufficient. The only caveat is that where the law requires affidavit of service of a bailiff, an affidavit from a lawyer or his clerk would not suffice.

Where a party intends to challenge or rebut the presumption of service attributed to the bailiff or other officer of court, he is obliged to file a counter affidavit to controvert the affidavit of service.

In this case the court held that court processes may be served on any day except on a Sunday or Public holiday unless there is a contrary order by the court permitting service on such days and such order shall be endorsed on the document to be served. Therefore, as a general rule, service of process cannot be done on a Sunday or public holiday. See the various Rules of Court.

A challenge based on service of process may be raised on any of two planks. One is outright lack of service (non-service) and the other is irregular service. In the case of non-service, the effect substantially affects the jurisdiction of the court. In other words, where there is no service, the court has no jurisdiction. On the other hand, where there is improper service, it is a procedural defect which can be remedied.

The procedure for serving a court process outside the state is further for in Sections 97 and 99 of the Sheriffs and Civil Process Act. These provisions are read in conjunction with section 96 of the Sheriffs and Civil Process Act and a strict compliance is mandated by the law.

The strict compliance with these sections was further adumbrated in Sken Consult v. Ukey (1981) 1 SC 1, where the Supreme Court held that a writ for service outside jurisdiction must have at least 30 days between the date of service and the date the defendant is required to enter appearance and, that where any proceeding is carried on before the expiration of 30 days, the proceedings is premature and, therefore, a nullity.

The Supreme Court maintained that compliance with the provision of section 97 of the Sheriffs and Civil Process Act are mandatory. The court held inter alia:

"This provision is mandatory and therefore, failure to so endorse is not and cannot be a mere irregularity, but a fundamental defect, the effect of which is that it renders such writ incompetent and thus, goes to the competence of the court and also goes to the root of the jurisdiction of the court".

See also Owners, MV Arabella v. A.I.C. (2008) All FWLR (pt. 443) 1208; Izeze v. INEC (2018) NWLR (pt. 1629) 110.

However, in the above case per Nwadialo held that since the effect of breach of section 99 of the Sheriffs and Civil Process Act is solely in the interest of the defendant or any other person on whom service is effected, then the defendant may voluntary waive it when he decides to acquiesce and fully participate in the proceedings.

In this case the court held that where there is non-compliance with section 99 of the Sheriffs and Civil Process Act, the defendant should raise preliminary objection failing which he would be deemed to have waived his right in that regard.

Non-compliance with sections 97 and 99 of the Sheriffs and Civil Process Act with respect to service of writ of summons is voidable and not void. What this means is that it is voidable at the instance of the defendant. Where the defendant is served without compliance with the provisions of the Act, he is at liberty to complain subsequently. In such a case, an application to set aside the proceedings subsequently would be refused by the court. See Uchendu v. Ogboni (1999) 4 SCNJ 64; Adegoke motors v. Adesanya (1989) 3 NWLR (pt. 109) p. 25.

EDITOR'S OPINION: The decision is Sken Consult v. Ukey (Supra) is no longer good law on the point that failure to comply with section 99 of the Sheriffs and Civil Process Act renders the Writ Void.

In this case the court held that the application to set aside for such irregularity must be made as soon as the defendant becomes aware of the defect and before he takes any step in the proceedings except, of course, the step to set aside the process.

In Adegoke Motors v. Adesanya (1989) 3 NWLR (pt. 109) 250, the Supreme Court in buttressing this point held that a challenge as to the validity of a writ should be made at the trial court so that the trial court would express an opinion to give the Court of Appeal an opportunity to review the decision. Where the issue was not so raised, the Supreme Court cannot make any pronouncement if the matter comes before it on appeal.

In this derivative action, the appellants caused the originating processes to be issued without leave of the Federal High Court and served same in Amsterdam. In an ultimate appeal to the Supreme Court, the court relying on Nwabueze v. Obi-Okoye (1988) 4 NWLR (pt. 91) 664 in allowing the appeal held inter alia:

"It is common ground in this case that no leave was obtained by the plaintiff before the plaintiff caused the writ to be issued...I have said that the issue of the writ of summons and service of same on the defendant are conditions precedent for the exercise of a court's jurisdiction over the defendants... since leave was not obtained before it was issued, I must hold and I hold that the writ of summons has been issued without due process of law and accordingly, has to be aside... the failure to obtain leave to issue the writ out of jurisdiction in this case is a fundamental breach which robs the court of any jurisdiction."

In Drexel Energy and Natural Resources Ltd. v. Trans- International Bank Ltd. (Supra), the Supreme Court held that where a plaintiff fails to obtain leave of the High Court before the writ of summons is issued for service outside jurisdiction, such writ is incompetent and so is the court to entertain such proceedings.

In this case the court held that where leave is required before a writ of summons may be issued for service outside jurisdiction, only an unsigned writ shall be attached to the application. Where a writ is signed before the leave, the leave is not proper and it is vitiated as a writ is deemed to be issued upon being signed by the Registrar. It violates both the issuance and the service.

As a general rule, an interlocutory application is an ancillary proceeding conducted as part of or/and in connection with a suit at the instance of a party thereto, or any other person who has or claims to have sufficient interest in the suit. Ordinarily, as the name suggest, an interlocutory application presupposes the existence of an action duly initiated since interlocutory applications do not decide substantive rights between parties.

The court while explaining the nature of interlocutory order which is a natural consequence of an interlocutory application, held: "An interlocutory order means any order than the final judgment in an action. It does not mean an order between the writ and the final judgment. It is an order available both before and after judgment in the action."

A motion is an application, usually in writing made to a court for the grant of an order in terms of the prayers sought in the application. In this case the court observed that since an interlocutory application is usually contingent on the main suit whether the application is made at or after judgment, any relief or order sought in a motion that is not in contemplation of the substantive relief sought in the main suit will be incompetent. See also Woluchem v. Wokoma (1974) 3 SC 153; Gombe v. P.W. Nigeria Ltd. (1995) 2 SCNJ 37.

A motion is an application made to court for the grant of a relief prayed for. Therefore, another name for a motion is an application. It is usually in writing and may be brought during the pendency of an action. There are two types of motions, viz: motion ex parte and motion on notice.

Where an action has already been commenced and is pending in court at the time the motion is filed, such a motion is called an interlocutory motion. If a motion is brought in the absence of a pending action or as a means of commencing an action, it is not an interlocutory motion because an interlocutory motion must be in relation to the substantive suit.

An interlocutory order terminates with the substantive suit or appeal as the case may be. If the applicant intends his order to be effective after the determination of the substantive suit, he cannot come by way of an interlocutory application. He must claim such relief as a perpetual order in his writ or other originating process.

A motion ex parte is one heard in the absence of the other party, i.e. the other party is not put on notice. In this case, the Supreme Court stated two circumstances under which an application may be brought ex parte:

i. When, from the nature of the application, the interest of the adverse party will not be affected.

ii. When time is of the essence of the application, i.e., in situations of urgency.

It should however be noted that a motion ex parte is a mandatory originating process in certain proceedings like enforcement of habeas corpus, certiorari and other prerogative orders etc. See O. 47 r. 2(2) (Abuja, 2018).

In Enekwe v. I.M.B. Ltd. (2006) 19 NWLR (pt. 1013) 146 at 182, the Supreme Court maintained that while the making of ex parte injunction is not unconstitutional, the order must be made sparingly and only where the circumstances are urgent and compelling such as to leave the court with no other alternative in preventing an anticipated injury of a grave nature.

It is settled law to note that in an ex parte motion, only the applicant is heard. Even if the other party is present in court, he will not be heard. He is also precluded from filing a counter-affidavit even if the facts as presented by the applicant are false.

There is need for full and fair disclosure of all facts relating to the application and there must be no suppression or mis-representation of facts in an exparte motion. This calls for display of utmost good faith on the part of the applicant.

Here the Supreme Court held that where an ex parte injunction is obtained by a party without disclosure of full facts or by misrepresentation, same will be discharged where the non-disclosure or misrepresentation was material and influenced the court to grant the injunction.

It was held that what is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after the notice to be other side. So, if an incident which forms the basis of an application occurred long enough for the applicant to have given notice to the other side if he had acted promptly, but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency and not one of real urgency within the meaning of the law. This self-induced urgency will not warrant the granting of the application ex parte.

Where an applicant obtains an order ex parte which he ought to obtain only through a motion on notice, such order is liable to be set aside for having been obtained in breach of natural justice. In Kotoye v. C.B.N. (1989) 1 NWLR (pt. 98) at 448, the Supreme Court expatiated on the principle of natural justice thus:

"...for the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing."

Given the nature of ex parte applications, any order obtained ex parte is expected to be short-lived. Generally, it has a life span of no more than a few days or as may be permitted by the Rules of court. in this case, the Supreme Court held that an order of injunction made by a court to last for a limited time and duration becomes automatically discharged at the expiration of the period.

It is usually granted to last until a named date or in anticipation of a motion on notice which is to be heard on the merits. See Odutola v. Lawal (2002) 1 NWLR (pt. 749) 433; Unibiz Nigeria Ltd. v. C.B.C.L. Ltd. (2003) 6 NWLR (pt. 816) 402 at 433; Gov. Lagos State v. Ojukwu (1986) 2 NWLR (pt. 18) 621.

A party affected by an order obtained ex parte may apply to court to vary or discharge the order. To accord with natural justice, when the party affected by the order is served, he has an opportunity to apply to discharge or vary such order in accordance with the demands of justice. Where there is no application to vary or discharge, an ex parte order lapses automatically after 7 days unless its life span is extended by the court. Also, no application for an injunction shall be made ex parte unless the applicant files with it a motion on notice in respect of the application.

There is no provision in most rules of court as to service of motion; nevertheless, there is a provision that there shall be 2 clear days between the date of service and the date fixed for hearing. This serves as a time frame to determine when a motion is ripe for hearing. It is important to note that this provision can be waived by the party to be served with the motion. See Order 43 Rule 6 Abuja & Order 43 Rule 5 Lagos.

Except directed by the court, there should be at least two clear days between the service of the motion on notice and the date of hearing.

In this case the court held that a motion on notice that was filed and moved on the same day was not ripe for hearing; and the order made thereon was set aside.

In some rules of court it is mandatory that a motion shall state the rule of court or enactment under which the application is brought. This requirement is specifically provided for under O. 43 r. 1 of the Abuja Rules 2018 but in other jurisdictions using the Uniform Rules, it has been a matter of practice to state the rule or Law under which the application is brought.

It is a settled law, that notwithstanding the use of the mandatory word shall in some rules of court, the failure to state the rule or law under which an application is brought is not sufficient to make the application incompetent or the order made thereunder, invalid, so long as there is a rule or law vesting the court with jurisdiction to make the order. See also Eboigbe v. Nigerian Airways (1985) 1 QLRN 22; Maja v. Samouris (2002) 9 NSCQR 546.

A motion is heard when same is moved. Moving a motion is a technical phrase which means no more than that the applicant or his counsel stands up in court (except he has leave to sit down), when the application is called and restates the reliefs he has in his motion paper and urges the court to grant them. It is usual to canvass legal arguments to support every relief sought.

The fact that counsel cites no legal authority does not make the motion any less heard. Also the fact that counsel canvasses legal arguments in support of some prayers (reliefs) and not on other prayers (reliefs) does not mean that those other prayers are abandoned.

After hearing arguments on either or bother sides, the court may grant the orders sought or refuse them. He may grant some and refuse some but he cannot grant more than what is applied for. See Commissioner for Works, Benue State v. Devcom Construction Ltd. (1988) 3 NWLR (pt. 83) 407.

In this case the court held that once an application has been filed before the court, the court has a duty to hear the application and make pronouncement thereupon. Like a judgment, it must be in writing and reasons must be given why the motion is dismissed or granted after arguments have been taken on both sides.

The court has no discretion to decide which motion to take and which not to take. In Dandume LGC v. Yaro (2011) 11 NWLR (pt. 1257) 159, the motion for extension of time to file defence was not heard until the learned trial judge delivered judgment. In setting aside the judgment, the appeal court held inter alia:

"The court has no power to decide whether to hear a motion pending before it or not before delivering his judgment. A court of law or tribunal has a legal duty to hear any court process including a motion before it. The process may be downright stupid, unmeritorious, or even abuse of court process, but the court must hear the party or parties and rule one way or the other."

In this case the court held that where a judge fails to fix a motion for hearing or after having fixed same for hearing, refuses to hear it, it will amount to a refusal of the application and the applicant is entitled to appeal against it.

Generally, the order in which pending motions are heard is within in the discretion of the court, although it is usual to take pending motions in the order in which they are filed. However, where there are two opposing motions, one seeking to terminate the proceedings and the other seeking to keep it alive by regularizing, the court would take the latter step. See also Olumesan v. Ogundepo (1996) 2 SCNJ 172; Nalsa Team Associates Ltd. v. NNPC (1991) II SCNJ 51.

Explaining this position in the case of Makinde v. Orion Eng. Services (U.K.) Ltd. (2014) All FWLR (pt. 739) 1185 at 1203 the Court of Appeal held inter alia:

"By the election, the court is inclined to saving the life of the suit for hearing on the merits. If the irregularity is curable and it is cured because it does not affect the jurisdiction and competence of the court to adjudicate on the matter, then, the application to terminate the matter is struck out."

In this case the court held that where there is a motion to discharge an ex-parte order of interim injunction and another motion for interlocutory injunction, the practice is to take the two motions together.

At the hearing of motions, generally, evidence is by affidavit. See Order 43 Rule 1 Abuja; Order 43 Rule 1 Lagos. As a general rule, where any motion is not supported by affidavit, the motion is incompetent as it will have no leg to stand on.

An affidavit is a written statement of fact which the maker swears to be true to the best of his knowledge, information or belief.

The deponent in an affidavit must specify whether the facts he deposes to are out of his personal knowledge or out of information received. Where he lumps both of them together as is both of them are out of his personal knowledge, the court will not ascribe any value to them as it will amount to hearsay.

Where the deponent deposes to facts not within his personal knowledge, the source and circumstances of his information must be stated. See Atayi Farms Ltd. v. NACB (2003) 4 NWLR (pt. 810) 427; Jimoh v. Min. F.C.T. (2019) 5 NWLR (pt. 1664) 45.

An affidavit is usually filed by the applicant who deposes to facts out of his personal knowledge or information which he believes to be true. It was held in this case that a deponent to an affidavit in any proceeding before the court is a witness in that matter.

Every duly sworn affidavit for use in court stands as evidence and must as nearly as possible conform to oral evidence admissible in court. Where it smacks of insincerity or otherwise, obviously false, it will be declared inconsequential.

In this case the court held that where the applicant does not intend to rely on facts but on law or on the facts already before the court, he need not file an affidavit. See also Araka v. Ejeugwu (1999) NWLR (PT. 589) 107. For instance, where an applicant files a preliminary objection based on purely ground of law, as was the circumstance in this case.

In this case the court observed that an affidavit must contain facts and only facts, not law. Mere reference, however, to a provision of a law in an affidavit without any legal argument does not offend section 115(2) of the Evidence Act.

Where the respondent of a motion does not file a counter-affidavit, the facts deposed to in support of the application are deemed to be true and unchallenged and the court is bound to act upon them unless such facts are obviously false. See also Yemos Ltd. v. Unity Bank Plc. (2017) All FWLR (pt. 873) 1653.

In this case the Supreme Court held that:

"Where there is no counter-affidavit to rebut the facts in a supporting affidavit to an originating summons, the depositions in the supporting affidavit are deemed admitted."

Where, however, the respondent wants to reply on point of law alone or on the facts as deposed to by the applicant himself, he need not bother to file a counter-affidavit. See Badejo v. Minister of Education (1996) 9-10 SCNJ 51.

A respondent cannot orally challenge the facts in the supporting affidavit, he can, however, argue that the supporting affidavit is contradictory or that the facts as contained in the affidavit are insufficient to meet the standard required to grant the other sought.

He may also argue that the facts are so manifestly unacceptable either on the face of the affidavit (taken as a whole), or in view of some other facts of which the court can take judicial notice, such as previous affidavits in the proeedings.

Where there is a conflict on material facts deposed to by the parties, it is imperative for the court to take oral evidence in order to be able to resolve the conflict and make a finding of fact.

However, where there is documentary evidence that can resolve the conflict, the court may dispense with oral evidence. See EIMSKIP Ltd. v. Exquisite Industries (Nig) Ltd., (2003) 105 LRCN 485.

It is not all the time that the court resorts to oral evidence in the event of conflicts. In some cases, oral evidence may be unnecessary. The court may also have recourse to documentary evidence. See also Ezechukwu v.Onwuka (2016) NWLR (pt. 1506) 529; Emskip Ltd. v. Ex1uisit Ind. Ltd. (2003) 4 NWLR (pt. 809) 88.

The essence of oral testimony is to give opportunity to either party to cross-examine the deponents on either side or to examine and cross-examine other witnesses called on both sides on the material issues of facts. In this case the Supreme Court explained the rationale for the rule to call oral evidence. Relying on its earlier decision in FSB Int. Bank Ltd. v. Imano (2000) 11 NWLR (pt. 679) 620, the court held:

"Conflicts in affidavit evidence on fundamental issues in the matter in controversy must be attended to and not glossed over. A court of law be it trial or appellate, is not imbued with divine or magical powers in the sense that it can divinely or magically resolve conflicts in factual matters which may only be done, in certain circumstances by dispassionate and painstaking evaluation of the facts or evidence placed before the court."

In this case the court held that it must be noted that where a party files multiple affidavits and there are contradictions in them, it does not qualify as conflict in affidavit to justify calling the deponent to give oral evidence. Order 37 Rule 9 and Order 36 Rule 10 of the Lagos and Abuja Rules, respectively, make the provisions of certain sections of the Evidence Act and the Oaths law governing affidavits applicable under the Rules relating to affidavits.

Counsel must avoid the habit or temptation of deposing to affidavits on behalf of his client in a case being handled by him. The reason is obvious. In the event of a conflict or conflicts in the affidavits of the parties, he would be required to enter into the witness box with the attendant embarrassment. See also Ekpeto v. Wanagho (2005) 123 LRCN 170; Obadara v. Ibadan West District Grade B Customary Court (1964) 1 All NLR 336.

An injunction is an order of court restraining the Respondent from doing an act prayed for in the injunction. An injunction is an equitable remedy. So, it is at the discretion of the court. However, the court is expected to exercise its discretion judiciously and judicially. Injunctions could either be interim or interlocutory. See Kotoye v CBN [1989] 1 NWLR (Pt. 98) 419 at 441 and 442.

These injunctions may be further classified into mandatory and prohibitive injunctions.

Generally, mandatory injunctions compel a party or a person named in the order to do a particular act or acts. The prohibitive injunction on the other hand, restrains a party or person named in the order from doing a particular act or acts. See Ohakim v. Agbaso (2010) 19 NWLR (pt. 126) 172 at 228.

An interim injunction is one granted to preserve the status quo until a named date or until further order or until an application on notice can be heard. It is granted in situations of extreme urgency and normally on ex parte application. The affidavit in support of the application must disclose the urgency otherwise it will not be granted. It is granted to maintain the status quo ante till when the Respondent can be heard, and it is usually for a shorter duration. See O. 7 r. 8 (Abuja).

In this case the court held that interim injunction is not granted as a matter of course, because the power of the court to grant it is of a very extra-ordinary jurisdiction. See Order 31 Rule 2 Abuja. It is granted in circumstances of real urgency.

The court explained real urgency to mean urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. See also Odutola v. Lawal (2002) 1 NWLR (pt. 749) 433.

In this case the court observed that an interlocutory injunction cannot be granted ex parte, neither can an interim injunction be granted to last till the determination of the case. This simply means that some important natures of the interlocutory injunction cannot be extended to the interim injunction and vice versa. For instance, an interim injunction can be granted ex parte that is not the position for interlocutory injunction which can only be brought on Notice.

The principles guiding the grant or refusal of an injunction are the same in interim and interlocutory injunctions except for the requirement of a situation of real urgency for an interim injunction.

In this case, the court stated the principles as follows:

a) Legal Right: There must be an existing legal right capable of being protected.

b) Substantial issue to be tried.

c) Balance of convenience. Irreparable damage or injury. The Applicant must show that he will suffer irreparable damage or loss not capable of being compensated in damages.

d) Conduct of the parties.

e) Undertaking as to damages.

See also American Cynamid Co. v. Ethicon Ltd. (1975) 1 All ER 504.

In this case the court observed that injunctions are usually granted to protect legally recognized rights. Where the applicant has no right recognizable by law, injunction cannot be granted. See Ladunni v. Kukoyi (1972) 1 ANLR (pt. 1) 133.

The applicant must also show that he has a legal right which is threated and worthy of protection. See Akapo v. Hakeem Habeeb (1992) 7 SCNJ 119.

Although as a general rule, any party to the proceedings may apply for interlocutory injunction, it is rarely granted in favour of a defendant who did not counter-claim as such injunction will not be based on any right claimed by him.

All that the applicant is required to show by his affidavit evidence in this regard is that the suit is not frivolous. He must show that there is a dispute to be resolved by the court at the trial. In this case the court held that it is no longer a requirement that the applicant must make out a strong prima facie case before he can have an injunction granted in his favour. All he needs to show is that there is a substantial issue to be tried between the parties.

On the issue of balance of convenience, the Supreme Court made it clear that the determination of the question by the court where the balance of convenience rests in a case is a question of fact and not of law.

The court is to consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have suffered as a result of the defendant's continuing to do what was sought to be restrained between the time of the application and the time of the trial.

In yet other words, balance of convenience is a question of who will stand to lose more if the status quo ante is restored and maintained till the final determination of the suit. The Court of Appeal explained further that for the applicant to show that the balance of convenience is in his favour, he must show that the inconvenience he would suffer by the refusal of the injunction is greater than that which the respondent would suffer if it were granted.

In this case the court held that although failure of an applicant to state in his affidavit or otherwise that he undertakes to pay damages may not rob the court of the discretion to grant an order for interlocutory injunction, it is usually required that the applicant undertakes to pay all damages caused to the opposing party if the order is granted.

In considering an interlocutory injunction and the conditions for the grant of same, the courts are enjoined to refrain from delving into the live issue in the case by not making pronouncements that would otherwise prejudge the main case. This is based on the well-established principle as upheld by the court in this case, that the court should not delve into substantive matters at interlocutory stage. See also NDIC v. SBN (2003) 1 NWLR (pt. 801) 311; Akapo v. Hakeem Habeb (1992) 6 NWLR (pt. 247) 266.

However, where the court cannot reach a decision without delving into the substantive matter, it should order accelerated hearing. See Globe Fishing Ind. V. Coker (1990) 11 SCNJ 56 at 79.

The reliefs sought in an application for interlocutory injunction must derive from or be based on or, at least have a bearing with the specific reliefs sought in the substantive action. See also Ladoke v. Olabayo (1992) 8 NWLR (pt. 261) 605.

In considering the factors for grant of interlocutory injunction, where the balance of convenience does not favour any of the parties, preservation of the status quo is the decisive factor. This is because the whole purpose of interlocutory or interim injunction is to maintain the status quo between the parties until the matter is determined on the merits.

In this case the court observed that with respect to an interlocutory or interim injunction to command a party to undo that which he has already done, otherwise known as mandatory injunction, this is rarely granted. It is only granted on the clearest evidence as well as very high standard of proof, so as to ensure that the trial, it will still appear that the order was correctly made.

The court quoted its earlier decision in the case of Daniel v. Ferguson (1891) Ch. 27, were it held thus:

"It is only in exceptional cases that the court will grant a mandatory injunction. It is, for example, granted to deal with a situation where the defendant had surreptitiously put up a building in order to steal a match against his opponent, during the pendency of a suit claiming an injunction"

In fact mandatory injunction is granted where the danger or injury is so serious that

Serious that the restoration of things to the status que ante bellum is the only method where justice can adequately be done.

This is an injunction normally made ex parte and in camera, permitting the Applicant to enter into the premises of the Respondent to search and seize, detain and preserve goods or articles in possession of the Respondent. This is normally granted in cases of infringement of copyrights, trademarks or patents.

There is now a statutory provision for making an Anton Piller order in Nigeria under Section 25(1) of the Copyright Act Cap C28 LFN 2004; formerly Section 22 Cap 68 LFN 1990.

In this case the court held that Anton Piller Injunction may be granted against unnamed defendants selling particular categories of infringing articles. For instance, street hawkers.

This is an injunction restraining a Defendant who is not within the country or jurisdiction but has assets in the country or jurisdiction from removing his assets within the jurisdiction, or disposing of them. See also **Sotiminu v. Ocean Steamship (1992) 5 SCNJ 1.

In Durojaiye v. Continental Feeders Nig. Ltd (2001) 10 NWLR (pt. 722) 657, the court observed that a Mareva Injunction is applied for in a situation where there is reasonable apprehension on the part of the claimant that in the likely event of judgment being obtained in his favour, the execution thereof may be frustrated by the defendant who might have, before such judgment, disposed of his assets or removed them from within jurisdiction. See also I.F.C. ltd. v. DSNL Offshore Ltd. (2008) 7 NWLR (pt. 1087) 592.

The key difference between a mareva injunction and an interlocutory injunction is that the assets in question in a mareva injunction need not be the subject matter of the suit. This is not the case in an interlocutory injunction.

In this case the court held that under the rules, a condition precedent to the making of such order is the failure of the defendant, upon the application of the claimant, to furnish sufficient security in fulfillment of any decree that may be made against him. See also Akingbola v. EFCC (2012) 9 NWLR (pt. 1306) 475.

Generally, application for Mareva injunction is by motion on notice supported by an affidavit and a written address. The affidavit shall contain facts upon which the applicant relies for the grant of the order. The court stated that it is by motion on notice because being a preservative order, it enjoins the respondent to furnish security against any possible judgment that may be obtained against him.

In most cases, an application for Mareva injunction is by motion on notice, nevertheless, in special cases, it may be made ex parte. The affidavit must disclose the following facts for the application to be successful:

a. That there is an action by the claimant pending against the defendant within jurisdiction

b. The existence of an arguable case by the claimant.

c. The defendant has assets within jurisdiction, particulars of which must be furnished by the claimant

d. Grounds for believing that the defendant owns the assets

e. There is real likelihood of the defendant removing the assets from within jurisdiction, thus rendering any judgment which the claimant may obtain nugatory

f. The balance of convenience is on the side of the claimant

g. The claimant is ready to give an undertaking as to damages.

Expatiating further on the nature and purpose of Mareva Injunction, the Court of Appeal stated in the case as follows:

"Mareva Order is in reality a security for judgment. Its purpose is not only merely to preserve the res as ordinary injunctions do. It is more than just that. It is also to secure assets for execution of anticipated judgment. In this sense, the Mareva procedure may be likened to the procedure for the arrest of a ship and the related concept of the sister ship action. The order operates in rem and takes effect from the moment it is pronounced on every asset of the defendant is relation to which it is granted".

See also I.F.C. Ltd. v. DSNL Offshore Ltd. (2008) 7 NWLR (pt. 1087) 592.

In this case the court held that a Mareva injunction is in the nature of a qua timet action which does not require that the applicant should secure a cause of action against the object or asset, the subject of the order of Mareva. Rather, he should be able to show that he has a good arguable claim to be entitled to money from the defendant and there is a real risk that the defendant will remove assets from jurisdiction or dispose of them so as to render them unavailable or untraceable in the event of judgment obtained against him.

In proving that there is real likelihood of the defendant removing the assets from within the jurisdiction thus rendering any judgment which the claimant may obtain nugatory, the claimant may need to place before the court the defendant's history showing that he has removed assets from jurisdiction before or that he is a persistent debtor. Other facts are:

a. That the defendant is a foreigner and/or that his place of business and domicile are in a foreign country (if applicable)

b. The assets could easily be removed and the defendant has not given any indication of willingness to pay. See Hunt v. B.P. Exploration Co. (Libya) Ltd. (1980) NZLR 104.

In this case the court held that once the Third Party Notice is served on the third party, he becomes a third party in the proceedings, that is, a defendant to the party who brought him in, usually, the defendant. However, he is not joined as a co-defendant as the claimant's writ does not recognize him. See also P.P.&P (Nig.) Limited v. Olaghere (2019) 2 NWLR (pt. 1657) 541.

In this case the court held that as far as liability arising from an action is concerned, the obligation of the third party is to the party calling him. In Okafor v. A.C.B. Ltd. (1975) 9 NSCC 276, the Supreme Court held as follows:

"The mere service of a Third Party Notice does not make the person on whom it is served a defendant to the main action but makes him only a defendant vis-à-vis the person serving the notice. In the main action, the rights of the plaintiff and the defendant are determined without reference to the defendant's claim against the third party, but when there rights have been ascertained, it is then open to the person brought in as third party to have all relevant disputes determined between him and the person serving the notice. In doing this, the third party may defend himself in any way in which a defendant in an action at the suit of a plaintiff may defend himself."

See also UBN v. Osazee (2011) 7 NWLR (pt. 1246) 293.

It is observed that from the moment the third party is served with notice, he becomes clothed with the same rights and obligations as he would have been clothed had he been sued by the defendant in a separate action.

Although a third party proceeding presupposes the existence of a separate action within another suit, it survives the main suit in that even if the main suit is struck out or settled, the proceedings between the third party and the party who served him the third party notice may continue. This is because the lis of the substantive action is different from that of the third party proceedings originating from it.

This lis of the substantive action terminates as soon as the action is concluded while the lis in the third party proceedings begins as soon as the statutory third party notice is served on the party and may outlive the substantive action. See Bank of Ireland v. UBN (1998) 7 SCNJ 385; *Kigo Ltd. v. Holman Brothers (1980) 5-7 SC 60.

Conversely, even where the main suit is going on, the third party proceedings may be dismissed for want of prosecution. See Slade & Kempton v. Kayman (1969) All E.R. 786.

An application for joining a third party shall be by motion on notice. It shall be served on the third party as well as the claimant. The claimant may object to the application for one of several reasons. He may object to the joinder of the third party on the grounds that:

a. The joinder will delay his suit unduly; or

b. The joinder will embarrass him; or

c. The joinder may put him to additional cost or inconvenience; or

d. The question raised in the third party notice cannot be completely disposed of in his action.

After the court has heard the application for third party directions, it may make any of the following orders:

a. Where the liability of the third party to the defendant has been established, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant giving notice; or

b. If satisfied that there is a question or issue to be tried properly as between the plaintiff and the defendant and third party or either of them, order that such question or issue be tried in such manner as the court or judge in chambers may direct; or

c. Dismiss the application.

The foregoing orders may be given either before or after the judgment has been entered against defendant in favor of the claimant in the action and such orders may be varied from time to time and may even be rescinded. See Okonkwo v. Mode (supra); Okonkwo v. ACB (supra).

Interpleader is a proceeding by which a person, from whom two or more persons claim the same property or debt and who does not himself claim the property or dispute the debt, can protect himself from legal proceedings by calling upon the two claimants to interplead, that is, to claim against one another so that the title to the property or debt may be decided.

In this case the court observed that it is clear that for the application to be successful, the adverse claims must be for the same money, good or chattel. Also, the applicant must have been sued or expects to be sued. Here, the two claimants claimed commission from the applicant based on two separate contracts for the sale of one house, each claiming a particular sum as commission.

The application for interpleader was refused on the ground that these were different claims founded on different breaches of contract and also that the applicant has not yet been sued. But where he expects to be sued, the expectation must be well founded. See Diplock v. Hammond (1854) LJ Ch 550.

In this case the court held that the essence of an interpleader is to determine where the property belongs to the judgment debtor or not.

It is trite that once an interpleader proceeding commences, it operates as a stay of sale pending the determination of the matter.

It is procedure that is available only to a holder of goods or money for and on behalf of another where there is a situation of adverse claims. In other words, interpleader summons is a procedure applicable when the goods or chattel of a person not named in the writ of fi fa is attached.

In this case the court held that the procedure cannot be followed by a party to the suit against whom the writ is targeted and executed.

In this case the court held that the goods may be released when the claimant gives the sheriff the value for the goods or security for its value. Such security is against any loss or diminution in value in the interim.

A notice of claim is given to the judgment creditor to inform him that the person named in the notice has made a claim specified therein to a particular property attached at his instanced and calling upon him to notify the court within a given time if he admits the said claim.

The proceeding is between the claimant as the claimant and the judgment creditor as the defendant and the burden is on the claimant to prove his claims. The sheriff is generally not a party to the proceedings except either party to the dispute makes a claim against him for damages.

There is, usually, no filling fees for interpleader summons, but a hearing fee based on the value of the property is appraised, may be paid into court. However, at the conclusion of the matter, the court will determine who should bear the burden of paying any court fees as well as how any money shall be applied. Meanwhile, failure of the claimant to pay the hearing fee may be a ground for dismissing the claim for want of due prosecution. See also Maigoro v. Bashir (2000) 1 NWLR (pt. 679) 43.

Generally, the burden of proof is on the claimant to establish his title or interest and where he fails to do so or could only prove that another person has the interest, his claim will be dismissed. Where, however, at the time of the attachment the claimant was in possession, the judgment creditor shall be deemed to be the plaintiff while the claimant shall be the defendant and bear the burden of proof as appropriate. See Lawal v. Ijale (1967) NMLR 155.

After the court has made a finding on the claim, it shall make an order regarding the property. Where the claim for ownership succeeds, it shall order that the attachment be released and if it fails, it shall order that the sale proceeds.

On a successful claim that the claimant is entitled to the property under a mortgage, lien, bill of sale, or other security for debt, the court may order the property or any part of it be sold with a direction as to how the proceeds shall be applied.

Any decision including orders made by the court after the hearing of an interpleader summons is a final decision and an aggrieved party is entitled to appeal as of right.

The appellant in this case contended that the use of the word: "may" in Order 28 Rule 1 (b) of the Bauchi State Rules makes it optional for interpleader action to be instituted either at the prompting of the sheriff or at the instance of an aggrieved party. The Court of Appeal held:

"I agree with counsel that the above law specifically mentioned the sheriff as a person who may apply to the court for interpleader summons. By the use of "may", that provision is neither mandatory nor does it exclude any other person who is genuinely aggrieved by reason of attachment of his property from instituting an action in court."

The purpose of a summary judgment procedure is to save time and cost where the defendant obviously has no defence to the action. It is for disposing with dispatch virtually uncontested cases. The procedure is for plain and straight forward cases, not the devious and crafty. See MacGregor and Associates v. NMB (1996) 2 SCNJ 72 at 81.

A summary judgment is a judgment on the merits because it is based on the lack of defence to the claim. Generally, it cannot be set aside by the court that granted it. It is only in a few exceptions that it can be set aside by the same court that granted it. The available option is to proceed on appeal in order to have the appeal court set it aside.

In this case the court held that a judgment in default of appearance may be set aside or varied on just terms if an application is made within a reasonable time, showing good defence and a just cause for the default. This is by virtue of Order 12 Rule 9 Lagos Rules.

The Supreme Court further listed the factors for a court to consider in an application to set aside a default judgment. They are:

i. Reason for the failure of the applicant to appear at the trial;

ii. Whether there has been undue delay in bringing the application to set aside so as to prejudice the other party in whose favour the judgment is given;

iii. Whether the party in whose favour the judgment was given will be prejudiced or embarrassed by an order for re-hearing such that it would be inequitable;

iv. Whether the applicant's case is manifestly unsupportable;

v. Whether the applicant's conduct makes his case worthy of sympathy.

In Sokoto State Govt. v. Kamadax Nig. Ltd. (2004) NWLR (pt. 878) 345 at 396, the Court of Appeal also listed the principles guiding setting aside a default judgment, being the same principles listed by the Supreme Court in this case, adding that if the judgment was obtained by fraud, it would also be a ground for an order to set it aside.

In this case the court observed that a liquidate sum or liquidated money demand means an amount agreed upon by parties, to which the claimant is entitled and which is capable of being ascertained, calculated or fixed by mathematical computation or operation of law. See also Denton-West v. Momah (2010) 2 NWLR (pt. 1177) 19.

In Osakue v. Namuo (1976) 1 MSLR VI 39 at 43, the court held that a liquidated sum is that which can be ascertained by calculation or fixed by any scale or charges or other positive data. On the other hand, an unliquidated amount is an amount the claimant may be entitled to depending on the circumstances.

In this case the Court of Appeal in defining the term "liquidated demand" referred to and cited with approval the explanation of the term given by the Supreme Court in the earlier case of Maja v. Samounis (2002) FWLR (pt. 98) 818; (2002) 7 NWLR (pt. 765) 78 at 102 viz: a liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation.

In this case the court held that it is thus clear that by a combined reading of Order 5 Rule 1 and Order 23 Rule 1 of the old Kano Rules, the completion of Form 1 supported by an affidavit constitutes the application for a writ of summons under the undefended list and on which the court, if satisfied, will enter the suit under the undefended list.

However, a conflicting view was held in the Kaduna division of the Court of Appeal in Maley v. Isah (2000) 5 NWLR (pt. 658) 651 at 664. Here, the court held that the plaintiff's application for a writ on the undefended list procedure ought to be by motion. See also Cash Affairs Finance Ltd. v. Inland Bank (2000) NWLR (pt 712) 496; Baba v. Habib Bank (2001) 7 NWLR 496 at 506; Imoniyame Holdings v. Soneb Ent. Ltd. (2002) 4 NWLR (pt. 758) 618 at 653-659; Nwakama v. Iko Local Government of Cross River State (1996) 3 NWLR (pt. 439) 732 at 740.

In this case the court held that the Notice of Intention to defend an action on the undefended list shall be filed not less than five days before the day fixed for hearing. See also Order 35 Rule 3(1) of the Abuja Rules; Order 11 Rule 10 Rivers State Rules.

In the light of the five days prescribed time limit for filing a Notice of Intention to defend, it accords with reason that for a writ under the undefended list to be properly served, the defendant must be given more than five days from date of service to the date of hearing to enable him file his Notice of Intention to defend within the prescribed time.

However, in jurisdictions which contain no specific time limit, a Notice of Intension to defend may be filed at any time before the hearing date. See Eden v. Canon Ball (Supra).

In this case, the court held that if a defendant does not within time deliver a notice of intention to defend and an affidavit required by the rules but before judgment applies to the court by motion on notice supported by affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, the court may allow him to defend the matter on terms as it deems just. See also Bulet v. Adamu (1997) 3 NWLR (pt. 493) 348.

The court may also grant an adjournment to a party who merely files a notice of intention to defend, to enable him take the proper steps e.g. filing an affidavit disclosing a defence.

In Micmerah Int'l Agency Ltd. v. A-Z Petroleum Products Ltd. (2012) 2 NWLR (pt. 1285) 564 at 595, the court observed that although there is no express provisions under the Abuja Rules for such extension of time to defend if good cause is shown. See also MC Inv. Ltd. v. C M Ltd. (2012) 12 NWLR (pt. 1313) 1 at 16 -- 17.

When a suit under the undefended list comes up for the first time in court, that is, on the return date, it comes up for hearing, not for mention. On that day, the court has only one duty, which is to see if a Notice of intention to defend together with an affidavit in support has been filed by the defendant. If none was filed, the court must proceed to judgment.

However, if the case was specifically fixed for mention, the court cannot properly proceed to hearing on that day and if it does, any judgment obtained shall be set aside on appeal. See UBA Kano v. Bauchi Meat Products (1978) 9 and 10 SC 51.

In this case the court held that if a notice of intention to defend was file, but without a counter affidavit, the court can grant an adjournment to enable counsel file the counter affidavit. Likewise, if a defendant filed a counter affidavit without the Notice of intention to defend, the court is enjoined to first consider whether a defence has been disclosed in the counter affidavit before proceeding to judgment. This is in the interest of justice.

The defendant's affidavit must contain a defence on the merit, clearly stated. It must condescend upon particulars and deal specifically and frontally with the plaintiff's claims and affidavits. It must state clearly what the defence is and whether it is against the whole or part of the claim without necessarily proving same.

The Court of Appeal held in this case that where a court finds that there is a set-off or counterclaim in an action under the undefended list procedure, the action should be removed from the undefended list and placed on the ordinary cause list. The court should then order pleadings or proceed to hearing without further pleadings. In the instant case, the trial court contradicted itself when it reduced the claim of the appellant on the basis that the respondent had a set-off and at the same time it purported to find that the respondent had no defence.

The duty of the court at this stage is merely to look at the facts averred and see if they can prima facie support a defence to the action on merit. Thus, where the defendant's affidavit raises substantial questions of fact or law which ought to be tried or facts which necessarily throw some doubt on the plaintiff's case, or there is an alleged misrepresentation by plaintiff or the facts alleged by plaintiff are such as entitle defendant to interrogate the plaintiff or cross examine plaintiff's witnesses, then the defendant ought to be let in to defend. See also Agro Millers Ltd. v. CMB (1997) 10 NWLR (pt. 525) 469; Daniel v. Samad (Nig.) Ltd. (1997) 7 NWLR (pt. 514) 673.

Also, if the plaintiff's claim cannot be determined without resort to an extrinsic accounting source, then the court has a duty to transfer the case to the general cause list. See ASU, Federal Polytechnic, Offa v. UBA Plc, Supra pp. 916-917. One triable issue is potent enough to warrant a transfer of a case from the undefended list procedure to the general cause list for hearing.

A defence on the merit means no more than the defendant raising a defence in law or in fact. He only needs to depose to facts which case doubt on the claim of the plaintiff. He has to show that there are triable issues. See also Keystone Bank Ltd. v. J.O.A. & S., Nig. Ltd (2015) 1 NWLR (pt. 1439) 98 where it was held that where a plaintiff files further and better affidavit, it shows there are serious issues to go to trial.

A defence on the merit must as far as possible deal specifically with the plaintiff's claim and affidavit. The defendant's affidavit ought to specifically traverse the claims in the plaintiff's affidavit. A mere general denial of plaintiff's claim is of no evidential value. See also Jupreze v. Okonkwo (1987) 3 NWLR (pt. 62) 737.

The affidavit must disclose a prima facie defence. See Bendel Construction Co. Ltd. v. Anglo Development Co. Nig. Ltd. (1972) ALL NLR (pt. 1) 153. An averment in the affidavit that defendant has a good defence without stating the kind of defence, supported by particulars does not fulfill the requirements of the law. See John Holt v. Henry Fajemirokun (1961) ALL NLR p. 492. The court will not allow a defendant with no real defence to dribble and frustrate the plaintiff.

In this case the court held that where there is set-off or counterclaim arising out of the subject matter of the dispute and connected with the grounds of defence, the suit should be placed on the ordinary cause list. In such a case, leave to defend should be ordered even if the defendant admits the whole or part of the claim. See also Bisong v. Ekpenyong (supra); Carrara Marble v. Bilado (1970) NCLR 561 at 565.

Where upon examination by the court, the defendant's counter affidavit does not disclose a defence on the merit, the case will be heard as an undefended suit. No leave to defend shall be granted the defendant and judgment shall be given in favour of the plaintiff without calling him to prove his case formally. Such a judgment is on the merits and cannot be set aside by the same court that gave it. It can only be appealed against. See ACB v. Gwagwalada (1994) 5 NWLR (pt 342) p. 25.

In this case the court observed that a judgment obtained where a defendant who was served did not file Notice of Intention to defend and counter affidavit is a judgment on merit irrespective of the circumstances.

In Leventis Motors Ltd. v. GCS Mbonu (Unreported) Suit No. JD/90/1959, the Court held as follows:

a. The judgment entered under the undefended list whereby the defendant neither appeared nor gave Notice of intention to defend is a final judgment of court.

b. A final judgment even though obtained through the default of the defendant cannot be set aside upon a Motion brought by the plaintiff in the original proceedings on the grounds that a less sum was awarded through his error unless the defendant consents to the court granting the Motion to set aside the judgment.

EDITOR'S NOTE: The 2nd ratio in the case of Leventis Motors Ltd. v. GCS Mbonu is with respect wrong. Reason being that if a court has no jurisdiction to set aside its final judgment, the consent of parties cannot confer such jurisdiction upon it.

Where there was no service of the writ, any judgment obtained is a nullity and shall be set aside upon application. For a matter to proceed to hearing and judgment, service of an originating process is a sine qua non.

The court further held that if the court was incompetent, the judgment can be set aside. See also Okereke v. Ejiofor (1996) 3 NWLR (pt. 434) p. 90.

If a party alleges that a judgment under undefended list was obtained through fraud, the proper procedure is to file a fresh action alleging that fraud was employed to obtain the judgment on the undefended list. It is not proper to file an application to set aside the judgment on the ground that it was obtained through fraud. See also Olufunmise v. Falama (1990) 3 NWLR (pt. 136) 1 at 10.

If a party alleges that a judgment under undefended list was obtained through fraud, the proper procedure is to file a fresh action alleging that fraud was employed to obtain the judgment on the undefended list. It is not proper to file an application to set aside the judgment on the ground that it was obtained through fraud. See also Olufunmise v. Falama (1990) 3 NWLR (pt. 136) 1 at 10.

The court is at liberty to call for hearing or require oral evidence if it feels so compelled at any stage where there is no Notice of intention to defend and an affidavit or where leave is not given to defend the suit. See Order 35 Rule 5 Abuja.

The affidavit is worn by either the claimant or a person who can swear positively to the facts verifying the cause of action and if it is a liquidated sum, the amount claimed. The claimant's nominee must state that he has the authority to swear to the affidavit. See Sodipo v. Leminkaenem (supra).

In this case the court held that under the Lagos Rules of 1994, the leave granted to the defendant to defend the action could be conditional or unconditional. Conditional leave under the old Rules was granted where the defence raised lacked much or any substance or appeared weak or dubious, or was a sham or shadowy. See also Van Lynn Dev. Ltd. v. Pelias Construction Co. (1968) 3 ALL ER; Ionian Bank Ltd. v. Convreur (1968) 3 ALL ER.

In this case the court held that by virtue of section 241(2)(a) of the 1999 Constitution as amended, where the court grants unconditional leave to a defendant to defend an action, there can be no appeal against the order. See also Camptel International Staff v. Dexson Ltd. (1996) 7 NWLR (pt. 459) p. 170.

The idea of a summary judgment procedure is not to shut out the defendant and so judgment will only be given in favour of the claimant where assuming all the facts relied upon by the defendant are in his favour, they still do not amount to a defence in law. In reaching a decision whether or not to grant leave to defend, it is not necessary for the judge to consider whether a defence has been established. Rather what he is required at this stage to consider is whether or not it appears the defendant has a good defence and ought to be allowed to defend. See FMG v. Sanni (1990) 7 SCNJ 159.

In this case the court held that the defendant who shows a fair case for defence or reasonable ground for setting up a defence or even a fair probability that he has a bona fide defence ought to be given leave to defend. But, a mere sweeping statement or general denial by the defendant is not sufficient to establish a good defence. Sufficient facts and particulars must be given to show that there is a bona fide or genuine or good defence. See NBN Ltd. v. Savol W A Ltd. (1994) 3 NWLR (pt. 333) p. 452.

In this case the court held that the defendant who shows a fair case for defence or reasonable ground for setting up a defence or even a fair probability that he has a bona fide defence ought to be given leave to defend. But, a mere sweeping statement or general denial by the defendant is not sufficient to establish a good defence. Sufficient facts and particulars must be given to show that there is a bona fide or genuine or good defence. See NBN Ltd. v. Savol W A Ltd. (1994) 3 NWLR (pt. 333) p. 452.

In this case the court held that action begun by Originating Summons and Originating motions are heard based upon affidavit evidence, pleadings are not used. But, the affidavits used in such proceeding.

In a strict legal sense, pleadings do not include a generally endorsed writ of summons. It is only if the writ of summons is specially endorsed with a statement of claim that it constitutes pleading. However, the term "pleadings" is sometimes used in a liberal sense to include all processes filed by a party in support of his case. But, our focus here is on pleadings in its strict legal sense which does not include writ of summons.

In a strict legal sense, pleadings do not include a generally endorsed writ of summons. It is only if the writ of summons is specially endorsed with a statement of claim that it constitutes pleading. However, the term "pleadings" is sometimes used in a liberal sense to include all processes filed by a party in support of his case. But, our focus here is on pleadings in its strict legal sense which does not include writ of summons.

In a strict legal sense, pleadings do not include a generally endorsed writ of summons. It is only if the writ of summons is specially endorsed with a statement of claim that it constitutes pleading. However, the term "pleadings" is sometimes used in a liberal sense to include all processes filed by a party in support of his case. But, our focus here is on pleadings in its strict legal sense which does not include writ of summons.

Pleadings help to ascertain with as much certainty as possible the various matters actually in dispute among the parties and those in which there is agreement between them. See Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365. A Pleading must be sufficient, comprehensive and accurate: Ayoola James v. Mid-Motors Nigeria Co. Limited (1978)11 and 12 S.C 31 at 63.

In Ogolo v. Ogolo (2003) 18 NWLR (pt. 852) 494 SC, the Supreme Court held that:

"The primary duty of a court of trial to make findings of fact on material issues, nay on all issues placed before it. Where a trial court fails to make a finding of fact on specific issues of fact and in consequence fails to resolve the issues that arise in the pleadings of the parties, the proper course an appellate court should take is to remit the case for retrial by another judge."

In this case, the court held that parties are bound by their pleadings. See also North Brewery Ltd v. Mohammed (1972) N. N. L. R. 133; G.U.O.Okeke & Sons Ltd v. Usifor (2008) 1 All FWLR p. 280.

Note that a party will only be permitted to call evidence to support his pleadings and if evidence is in fact adduced contrary to his pleadings such evidence must be expunged when the judge is considering the case. See National Investment Properties v. Thompson Org. Ltd (1969)1 ALL NLR.

Pleadings help to avoid springing of surprises. The rule of natural justice -- audi alteram partem- demands not only that both parties be heard but also that neither of them is allowed to surprise the other by raising unforeseen issues. See also George & Ors. v. Dominion Flour Mills Limited (1963)1 All N.L.R. at 72; Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 125.

It is the duty of counsel to raise objection to the admission of evidence to an issue not pleaded. But if he fails to take this objection at the trial and such evidence is wrongly admitted, he may raise the point on appeal. See Abowaba v. Adesina (1946)12 W.A.C.A. 18; Owoniyi v. Omotosho (1961)All N.L.R. 304; (1962) WNL.R. Lloyd v. West Midlands Gas Board (1971) LW.L.R.749; (1971) 2 All E.R. 1240.

A plaintiff or claimant however, is allowed to lead evidence on any matter raised in the defendant's pleading, Igbodin & Ors v Ovianke (1967) 9 - 10 S.C. 179 at 191.

In Woluchem & Ors v. Gudi & Ors (1981) 5SC 291 at 320; (1981) NSCC. 214 at 227, the court held that evidence in respect of matters not pleaded really goes to no issue as the Court should not allow such evidence to be led.

Pleadings serve as guide to the court as to the precise matters it is called upon to decide between the parties. The court is bound by the pleadings of the parties and is not to determine issues or award reliefs not raised or sought by the parties. See also Etowa Enang & ors. v. Fidelis Ikor Adu (1981) 11-12 SC 25 at 36; Kalio v. Daniel Kalio (1975) 2 SC 15 at 21. Any judgment that does not answer or determine the issues raised as being in controversy between the parties is in error and bound to be set aside on appeal.

Pleadings serve as notice to the other party in respect of what to expect in court. This prevents the springing of surprises on the opponent at the trial, thereby enabling each party to prepare better to meet the opponent's case at the trial. Any evidence which is at variance with a matter pleaded goes to no issue and must be disregarded by the court.

Pleadings guide the court as to the cause of action for the purpose of determining whether same falls within the court's jurisdiction. Here the court held that:

"In determining jurisdiction, the must look at the plaintiff's claim as contained in the writ of summons and the statement of claim with a view to determining the cause of action falls within the jurisdiction conferred on the court."

See also Chevron Nig. Ltd. v. Lonestar Drilling Nig. Ltd. (2001) 11 NWLR (pt. 723) at para 7; Anaso Ibeto Int'l Ltd. v. Vimex (2001) 10 NWLR (pt 720) at 227.

The plaintiff's claim determines the issue of jurisdiction. If the court finds that it lacks jurisdiction to entertain the claim before it, the proper order to make is one striking out the suit. See NDIC v. CBN (2002) 7 NWLR (pt 766) p. 272, 300, para E-F. The court relies on the statement of claim to guide it in determining whether or not it has jurisdiction over the matter.

It is settled principle of law that a court which has no jurisdiction to entertain a matter before it cannot exercise judicial power in respect of that matter.

Pleadings constitute permanent and public record of the issues and questions raised and determined between parties in an action, forming the basis of the plea of estoppel per rem judicata in subsequent actions.

Public interest requires that there should be an end to litigation. If a matter has been adjudicated upon by a court of competent jurisdiction, it should not be relitigated between the same parties. If the issues raised in the pleadings in an earlier action are the same as the issues raised in the pleadings of a subsequent action, then the two actions are on the same subject matter.

It is trite that he who asserts must prove and it is from the pleadings that the court can determine the assertions being made by the respective parties and who bears the burden of proof of those assertions. It is also trite that facts admitted need not be proved except in a case for declaration of title or facts of common knowledge or capable of verification by reference to a document the authority of which cannot be reasonably questioned.

Every pleading must contain only material facts, that is, the essential facts necessary to establish the claimant's claim or cause of action or the defendant's defence. See Order 17 Rule 2 Lagos Rules. Material facts was described in the case of Bruce v. Odhams Press Ltd. (1936) 1 K.B. at p. 712 as necessary facts for the purpose of formulating a complete cause of action, and if any one material fact is omitted, the statement of claim is bad.

Every pleading shall contain facts, but not law or legal argument or conclusion. A party is only entitled to plead the facts on which the law will be based. It is entirely for the judge to draw legal conclusions based on the facts pleaded. Conclusions of law or of mixed law and facts are never to be pleaded.

The claimant must aver all those facts from which it will be clear that the defendant owes him a duty of care. Likewise, the defendant must state all those facts in his own pleading, which in his opinion, will show that he does not owe the claimant any such duty of care. In this case, the court stated:

"It is bad pleading to allege merely that a right or a duty or a liability exists; the facts must be set out which give rise to such right or create such duty or liability. Hence, where the facts stated in the pleading disclose no cause of action, the pleading will be held bad in spite of any allegation to the effect that the act was unlawful, or wrongful, or improper, or done without any justification therefore or right so to do."

In this case the court held that the defendant must plead all the facts and circumstances on which he relies as creating the privilege, and then the judge will decide on the facts proved at the trial whether the occasion was indeed privileged or not.

In this case the court stated that the principles of customary law, Islamic law and foreign law are exceptions to the rule against pleading law and they must be pleaded by a party who intends to rely on them. In the case of customary law, if it has been judicially noticed, then it need not be pleaded.

Pleadings shall contain facts but not the evidence by which the facts are to be proved. Facts should be alleged as facts. The fact in issue between the parties is the factum probandum, the fact to be proved and therefore the fact to be alleged.

It is not always easy to distinguish between facts and evidence. In this case, Umoren (JCA) in his concurring judgment explained it thus:

"Pleading is like a table which stands on its legs. The facts form the top of the table and the legs on which it stands are the evidence that support the facts. A pleader pleads facts and not the evidence or the law resulting from the facts. He does not plead legal results but facts. It is sufficient for the pleader to state the material facts. He can present in argument any legal consequences or evidence which the fact permit or in support of the facts. The practice of the courts generally is to consider the legal results and the evidence of the fact set out in the pleadings though the particular legal result or evidence had not been set out in the pleadings. Thus, all that is required to be pleaded are facts and not the evidence by which such facts are to be established".

The Supreme Court adopted the distinction between fact and evidence as explained by Lord Denman in Williams v Wilcox as follows: it is an elementary rule in pleading that when a state of fact is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation.

It is trite that where evidence is pleaded, the paragraph(s) containing it ought to be struck out from the pleadings. It has however been suggested, the foregoing notwithstanding, that the true meaning of the rule against pleading evidence is that the pleader is at liberty to and must set out the facts on which he relies and he may set out the evidence if stating the facts necessarily involves setting out evidence.

It is settled law that every pleading must be dated and signed by the legal practitioner settling same or by the party if he acts in person. See Order 15 Rule 2(3) Abuja and Order 17 Rule 2 Lagos. Where pleading is unsigned, its authenticity may be doubtful. And, in Auman (Nig.) Ltd v. Leventis Motors (Nig) Ltd (1990) 5 NWLR (pt 151) 458 at p. 568, an unsigned pleading was declared void.

The court will not enforce a transaction which is tainted with illegality. It is often in cases founded on contract that the question of illegality of the transaction crops up. Illegality is a defence to a claim founded on an illegal transaction. A contract may be ex facie illegal or it may be lawful but uncertain surrounding circumstances taint it with illegality. It could also be that the consideration or a part of it is illegal.

Nevertheless, in George & ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71, the court held that such a contract is ex facie illegal and if a contract upon which the plaintiff sues is ex facie illegal, the court will not enforce it regardless of whether the defendant pleaded the illegality as a defence or not. The court will take notice of the illegality as it appears on the face of the contract or from the evidence adduced and refuse to enforce it.

In this case the court held that if a contract is lawful, but the surrounding circumstances taint it with illegality, it becomes necessary for the defendant to plead the illegality together with the facts that taint the contract with illegality if the defendant intends to rely on the illegality as his defence. If the contract is lawful and the defendant does not plead the surrounding circumstances that give rise to the illegality, the court will not entertain the question of illegality.

These are always serious allegations and they must always be pleaded, together with particulars and they must be proved strictly. Unless they are pleaded, they cannot be raised at the trial. See Usen v. Bank of West Africa Ltd. (1965) 1 ALL NLR 244.

In this case, the court held that allegation of fraud or the commission of crimes or any fact showing illegality must be specifically pleaded before the court can consider granting it. See Onyuike v Okeke (1976) NSCC 146; Fabunmi v. Agbe (1985) 5 SC.

In this case the court held that a plaintiff intends to contend that he is entitled to commence the action within the date of knowledge as against the date of cause of action accrued, he must plead those facts without waiting for the defendant to first plead the statute of limitation.

In defamation cases, the words alleged to be defamatory must be specifically pleaded and the particulars of publication furnished. In libel cases, the particulars of the alleged libel must be specifically pleaded and the precise words set out. In slander cases, the precise words and the names of persons to whom the words were uttered must be pleaded. Particulars of the time and place the words were uttered must also be given. If the words are in a foreign language, they must be set out in such language, together with a translation of the words.

If the defendant relies on a plea of fair comment, or a matter of public interest or justification or privilege in his statement of defence, he should give particulars of same. See Order 17 Rule 16(3) Lagos Rules; Order 15 Rule 17 (3) Abuja Rules. It then becomes incumbent on the claimant to deliver a reply in rebuttal detailing facts and matters from which it will be inferred that the defendant was actuated by malice. See Order 15 Rule 17(2) Abuja Rules; Order 17 Rule 16 (2) Lagos Rules.

In libel cases the particulars of the alleged libel have to be pleaded in order to make it easily identifiable. The precise words have to be set out. If the words do not specifically refer to the plaintiff or claimant, he must plead those facts from which he wants the Court to infer that the libel refers to him. See also Okafor v. Ikeayi (1979) 3 and 4 S.C 99.

In slander cases the precise words used and the names of the persons to whom they were uttered must be pleaded. See Bradbury v. Cooper (1884) 12 Q. B. D. 94, particulars of the times and the place where the words were uttered should be pleaded. If the libel or slander is in a foreign language, the actual words allegedly written or spoken must be set out in the foreign language, followed by a literal translation thereof. See Sowole v. Erewunmi (1961) All N L.R.712.

In a case of defamation, if the defence is that of qualified privilege or fair comment, this must be specially pleaded. The Court may not permit an amendment raising the plea after the close of evidence. See Stallworthy v. Geddis (1909) 28 N.Z.L.R.366.

The particulars in a claim for negligence must be pleaded. In this case the Supreme Court held that in the 2nd defendant's statement of defence, contributory negligence was pleaded although the caption "contributory negligence" was not used.

In an action based on tort, where the claimant intends to rely on this doctrine it must be specifically pleaded either by reference to the maxim or sufficient facts which justify it application. Res ipsa loquitur is a principle in tort law that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by proving that the harm would not ordinarily have occurred without the negligence of the defendant, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

In a matrimonial or other causes based upon adultery, the particulars of the alleged acts of adultery must be specifically pleaded including the times and places of each act of adultery as well as particulars of the person with whom the adultery is allegedly committed.

In this case, the court held that if special damages are claimed, the details of those must be specially pleaded. See Otaru & Sons v. Idris (1999) 68 LRCN 823.

It is settled law that Estoppel must be specially pleaded. Also see Obanye v. Okwunwa Ijoma (1930) 10 N.L.R. 8.

A purchaser of legal estate, subject to a prior equitable mortgage must specially plead that he is a purchaser for value without notice. Failure to plead that defence or call evidence to establish lack of notice, raises a presumption that the purchaser had notice of the prior mortgage.

Unenforceability of a document must always be pleaded and where a party fails to plead the fact which renders a document unenforceable against him, it is not open to the Court to consider it. See also the dictum of Charles J in Barclays Bank D. C. O. v. Memunatu Hassan N. L. R. 837.

A statutory exception to a general statutory immunity from liability must be specially pleaded by the party. See also Moore v. News of the World Ltd and Another (1972) I. Q. B. 441 at 448. Therefore, where the law prohibits the institution of the proceedings, or prescribes a notice of intention to institute the proceedings, i.e. a pre-action notice, defendant who intends to rely on the absence of such notice as a defence must raise it in his pleadings. See Katsina Local Authority v. Alhaji Barmo Makudawa (1969) N. N. L. R. 62 (1971) N.M. L. R. 100.

Facts relied upon for bringing a particular transaction within the ambit of particular Act, e.g. Money Lenders Act (Cap) 124 should be specially pleaded. See also Katsina Local Authority v. Alhaji Barmo Makudawa (supra).

An allegation that a failure of a condition precedent to found the plaintiffs claim exists must be specially pleaded by the defence. See Yassin v. Barclays Bank D. C. O. (1968) NMLR 380, OR (1968) NMLR 46. See also the Lion of Africa Insurance Co. Ltd v. Stella Anuluoha (1972)1 All N. L. R. (pt.2)32.

A written agreement must be pleaded, however, where it is not pleaded and the pleadings of the plaintiff or claimant is not in conflict with it, or it was admitted by consent, a court of appeal will not allow an appeal against a judgment founded on the agreement.

However, in Mandilas and Karaberis Ltd. v. Otokiti (1963) 1 All NLR 22, a written agreement was not pleaded but was put in evidence by consent and the statement of claim was not in conflict with it, and the court held that the trial judge ought to have had regard to the agreement.

The defence of laches, acquiescence and undue influence must be specially pleaded. See also Gbadebo and Anor v. Fadioriaand Anor. (unreported) W.S. CAN/33/68 June 6, 1969. Similarly, Waiver of a condition of an agreement must be pleaded. See Wada Darma v. Lion of Africa Insurance Co. (1970) N. N. L. R. 84.

Where the basis of an action is res ipsa 1oquitor; this must also be specifically pleaded either by specific reference to that maxim or by pleading facts which justify the application of it. See Adebisi & Ors v. Oke (1967) N.M.L.R. 64.

In this case, the court held that items of loss alleged to constitute special damages have to be particularized in the plaintiffs pleading. See also Same v. Same (1969). W. L. R. 579, (1969) 3 All E. R. 479.

In this case the court observed that customary law, foreign law and Islamic law must be specifically pleaded unless they are already judicially noticed by the court.

If a party intends to rely on traditional or family history or title of ancestors in an action for declaration of title to land under customary law, he must plead the names and histories of the ancestors. If he does not, he will not be allowed to adduce evidence in this regard at the trial.

In this case the court held that a bona fide purchaser for value without notice must specifically plead the defence.

A claim for forfeiture and conversely, a relief from forfeiture must be specifically pleaded. Failure to plead either is fatal to the claim. But, if the grantor claims for recovery of possession and pleads the grounds on which the right to recovery is based, it is sufficient, because the mere absence of the word "forfeiture" from the pleadings is not fatal where the nature of the claim is abundantly clear.

It is settled law that when a statement of claim is filed, it supersedes the writ. See also Enigbokan v. AIICO (Nig.) Ltd. (1994) 6 SCNJ 168; Udechukwu v. Okwuka (1956) 1 FSC 70; Garan v. Olomu (2014) All FWLR (pt. 711) 1514 @ 1534. This means that any matter which is stated in the writ but omitted in the statement of claim is deemed to have been abandoned. For this reason, an amendment to the writ without a corresponding amendment to the statement of claim will not be effective, unless there is an endorsement in the statement of claim that the plaintiff claims as per the writ. This is because the defendant is thereby put on notice that the plaintiff claims as per the writ.

However, it must be noted that although the statement of claim supersedes the writ, nevertheless, it must confine itself to the cause of action indorsed upon the writ of summons.

The material facts are a matter of the substantive law which governs the subject matter of the claim. For instance, in order to sustain an action on trespass to land, the law is that the plaintiff must have a possessory right. So, it is imperative that the plaintiff pleads in his statement of claim that he has a possessory right.

If the plaintiff does not plead that he has such a right, then no cause of action is disclosed and the action will be struck out. See John George Will v. J A George Will (1924) 5 NLR 76. But, if he pleads and proves title, it will sustain the action. See Badejo v. Sawe (1984) 6 SC 350.

In this case per James L J held that the statement of claim must not anticipate and answer to the defendant's defence. It is improper for the statement of claim to contain imaginary defence that may be relied on by the defendant. Anticipating the answer of the adversary and attempting to destroy it in advance is referred to as "leaping before one comes to the stiles". See also the decision of Per Hale CJ in Sir Ralph Bovey's case (1684) 1 VENT 193 at 217.

In Spring Bank Plc v. Royal Foam Products Nig. Ltd. (unreported) Suit No. K/823/2003, the court observed that a statement of claim should not contain references to possible defences and/or objections that are yet to be urged upon the court by the defendant. If and when the defendant does raise any defences and/or objections, the plaintiff shall have ample opportunity to respond to them by preparing and filing his reply to the statement of defence. See also Shell Petroleum Development Co. v. Burutu LGC (1998) 9 NWLR (pt 565) 318 at 331.

In a similar vein, the defendant is not expected to answer to matters in respect of which the plaintiff has not attributed any wrong doing to him. To do so will amount to crying wolf when there is none. See Rassam v. Budge (1893) 1 QB 571.

Where there are different defendants and they file separate statements of defence, they are to be headed as that of the particular defendant, for instance, "Statement of Defence of the 1st Defendant". Where they file a joint statement of defence, it should be headed "Statement of Defence of the Defendants". This usually happens where the defendants retain one counsel.

For this to be effective, they must not have conflicting cases. If the plaintiff has the same cause of action against different defendants and they file separate statements of defence, the defence of one is available to the rest. If the claim against them is join, they are bound by the case of one of the defendants and liable for the default of any one of them.

There is a fundamental rule in respect of traverse that any allegation of fact made in a pleading is deemed to be admitted by the opposite party unless it is traversed. It therefore follows that every allegation of fact made in a statement of claim which is not admitted must be specifically traversed in the statement of defence. Material allegations must be specifically denied. A general denial will not suffice for the purpose. Due observance of this rule speedily brings the parties to a definite issue.

One of the essential rules of pleadings is that defendant's pleading shall deny all material averments in the statement of claim as the defendant intends to deny at the hearing. Every allegation of fact which is not specifically denied or stated not to be admitted shall be taken as established. Denial should therefore not be evasive. It should meet the pointed-out instances pleaded in the statement of claim and where any allegation of fact in the statement of claim has not been specifically denied or by implication, the plaintiff is not even obliged to establish it by evidence.

The law and rules of pleadings do allow a general traverse the only effect of which is to cast on the plaintiff the burden of proving the allegation thus generally denied. See Ace Jimona Ltd v. The Nigeria Electrical Contracting Co. Limited S. C. 589/64- delivered in May 1966. It must be noted that a general traverse is not enough to controvert material and essentially important averments in the statement of claim. See Akintola v. Solano (1986) 2 N. W.L. R. 598.

Where a defendant states "The defendant is not in a position to admit or deny the allegation contained in paragraph 6 of the statement of claim", it has been held that such traverse is not a proper traverse and amounts to no denial at all. See Lewis & Peat (NRI) Ltd. V. Akhimien (1976) 7 SC 157; Akintola v. Solano (1986) 2 N. W. L. R. 598. But in Aja v. Okoro (1991) 9-10 SCNJ 1 at 18, it was held that in circumstances where the facts are only known to the Plaintiff, it would constitute a proper traverse. In Ugochukwu v. CCB (1996) 7 SCNJ 22, it was held that the court should look at other paragraphs of the statement of defence in order to determine whether it amounts to an admission or denial.

The rationale for this is as stated in this case by Tindal C. J., that "plea must be an answer to the action; there is no such thing as a plea to the damages." See also Porter v. Izat (136) 1 M. & W. 381; Tyr. 7 G. 639. They should therefore not be traversed unless the defendant wishes to make an admission. See Order 19 Rule 5 Lagos; Order 17 Rule 5 Abuja.

Certain allegations made by the plaintiff may be within the exclusive knowledge of the claimant and not within the knowledge of the defendant. Or 23 Rule 13 of the old Abuja Rules recognized this and provided that in respect of such allegations, the defendant shall state that he does not know whether the said allegation is true or not. Although the new Abuja Rules of 2018 and the Lagos Rules do not contain such a provision, it is common practice for counsel to plead to averments that are not within the knowledge of the defendant by the stating that "the defendant is not in a position to admit or deny the allegation" as contained in the statement of claim. See the contradicting decision of the court in Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 7 SC 157 at 163.

In this case, Akpata JSC stated:

"I find no merit in this submission. As rightly submitted in the respondent's brief of argument, paragraph 9 of the statement of defence is to the effect that Isaac Chukwu felled iroko tree or timber on the respondent's land. They were not in a position to know whether or not Isaac Chukwu also felled Iroko tree on the plaintiff's land. It will, in my view, be encouraging a defendant to be mendacious to insist that he must deny flatly the fact of something he knows nothing about."

In the case of Chief Balonwu Ugochukwu v. CCB (Nig.) Ltd (1996) 7 SCNJ 22, the appears to have laid the matter to rest when it held that for a court to determine whether or not a traverse amounts to an admission or a proper traverse, it should consider all other paragraphs in the statement of defence. The apex Court held that if the averment that the defendant is not in a position to admit or deny follows a general denial, it amounts to a proper traverse.

The idea behind the general traverse is to ensure that all allegations of facts contained in the statement of claim which are not admitted are traversed, just in case there is any that counsel may have inadvertently not traversed or has no specific instructions in respect of. It is a way of avoiding getting caught by the general rule that any allegation of fact in the statement of claim that is not specifically denied in the statement of defence will be deemed to have been admitted. The effect of the general traverse is that it puts the claimant to the proof of facts alleged in the statement of claim. But, the general traverse alone is not sufficient to traverse material allegations in the statement of claim.

The general traverse alone is not sufficient to traverse material allegations in the statement of claim. Here the court observed that the general traverse is not enough to controvert material and important averments in pleadings. See Or 17 R 5(2) Lagos; Or 15 Rule 5(2).

However, in the latter case of Umezie v. Onuaguluchi (1995) 12 SCNJ 120, the Supreme Court held that a general traverse when considered along with the "whole tenor" of other averments in the statement of defence may amount to a proper traverse of traditional history pleaded in the statement of claim.

It is settled law that a party who failed to raise an objection by way of a preliminary objection may nevertheless raise it in his pleading. Under the Lagos rules, if the matter is raised in the pleadings, it can be disposed of before the trial or at the trial whereas under the Abuja rules, it can be disposed of before, at or after the trial.

In this case the Court of Appeal held that:

"Demurrer proceedings have been abolished by the rules of court. However, where a defendant perceives a point of law, such as on jurisdiction, he is at liberty to raise it in limine urging the court to strike out or dismiss the action without filing a defence or calling evidence."

This is a monetary claim by the defendant, which is included in the statement of defence and relied on as a defence and set-off against the plaintiff's monetary claim. In other words, it is a monetary cross-claim by the defendant, raised as a defence to the plaintiff's monetary claim. Being a monetary claim, it can only be pleaded if the plaintiff's claim is also for a sum of money.

The parties must be the same, otherwise the defendant cannot plead a set-off. For example, if the plaintiff is suing in a representative capacity, the defendant is not entitled to set-off a debt which the plaintiff owes him personally. Also, the plea is only used as a defence and is therefore a shield, not a sword.

In this case the court held that a set-off should not exceed the plaintiff's claim and that where the amount claimed by the defendant as set-off is more than the plaintiff's claim, it is better for him to file a cross-action or counter-claim.

This is a cross-action raised in the statement of defence by a defendant who has a cause of action against the plaintiff. It is an independent action brought by the defendant against the claimant (incorporated in the claimant's claim) and not merely a defence. It may not arise out of the same transaction as the claimant's action and it is not predicated on the statement of claim.

The defendant's cause of action as shown in his counter claim must have arisen as at the time of issuance of the writ. In this case, the Supreme Court refused to allow a counter claim which cause of action accrued after the date of the issuance of the writ. A counter claim must always claim a relief against the claimant either alone or with some other person who is also made a defendant to the counter claim. If a purported counter claim claims no relief, it is not a counter claim. See the decision of Per Jessel M R in Furness v. Booth (1876) 4 Ch. D. at P. 587.

In this case the court held that a counter claim is a sword which attacks the claimant, whereas a set-off is a shield which defends the defendant. A counter claim can only be a shield in addition to being a sword if it is of such a nature that it can also be pleaded as a set-off. For instance, if A is both a creditor and a debtor of B in different transactions and B's solvency is in doubt, A may wish to set-off amount against the other. But, if the claimant's action is discontinued, the set-off collapses. However, if A pleaded a counterclaim, he can proceed to establish his claim regardless of whether the claimant's action has collapsed or not.

The law appears settled that a counterclaim has an independent life and would survive even after the main claim has been dismissed or struck out, recently, the Court of Appeal has held that where the originating process is invalid, the counter claim cannot stand.

If the time prescribed by the rules within which to file pleadings has expired and a party has not yet filed his pleadings, the court can grant extension of time within which pleadings may be filed. In calculating time, Order 52 Rule 6 Abuja Rules and Order 49 Rule 6 Lagos Rules both provide that "the time for filing and service of pleadings shall not run during the long vacation unless otherwise directed by a court or Judge in chambers".

The position of the law is that where there are two competing motions before the court, one destructive and the other constructive, the constructive one should come first. The aim of the courts now is to do substantial justice between the parties and therefore the courts lean in favour of the proceeding that will do substantial justice. See also Daniel J Matinja & ors v. Military Administrator, Pleateau State (1998) 9 NWLR (pt 567) p. 694. See Abiegbe & ors. v. Ughodume & anor. (2001) 10 NWLR (pt 722) p. 592.

In this case the Supreme Court, Per Nnaemeka Agu stated the guiding principle as follows:

"A court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being summarily dismissed first, before considering the application for striking out or dismissal for non-compliance."

In this case the court observed that if there are two competing applications before the court, and one happens to be an application for contempt proceedings to ensue against a party before the court, the application for contempt proceedings shall take precedence. It shall be taken first before any other application because a court is entitled to first strip a contemnor of his arrogance before entertaining his application.

In this case the court stated that an amendment is nothing but the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either of course or by the consent of the parties or upon notice to the court in which the proceedings is pending. The object of the court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases. There is no kind of mistake or error which if not fraudulent or intended to overreach, the courts cannot correct if this can be done without injustice to the other party. See also Nalsa & Team Associates v. NNPC (1991) 8 NWLR (pt. 212) 652 at 676.

The law is that application for amendment ought to be granted by the court, even though it was made on the day fixed for judgment, before the judge delivered his judgment. In Okafor v. Ikeayi (1979) 3 -- 4 SC 99, the apex court was of the view that the object of the amendment was to comply with the rule of pleading and that no injustice would have been done to the respondent by the compliance.

In a strict sense, amendment after judgment is restricted to the correction of misnomers or misdescription or typographic errors. It does not authorize a judge to alter the substantive judgment for any reason. The inhibition is that the amendment should not cause injustice.

The Supreme Court and the Court of Appeal both have inherent and statutory powers to amend pleadings provided that the amendment is consistent with evidence adduced at the trial. They however exercise caution in granting an amendment to pleadings at the appeal stage because the parties are not ordinarily entitled to give evidence any more. See also Okolo v. UBN Ltd (1999) 6 SCNJ 193.

The primary consideration and the usual ground on which amendment is granted at this stage is the evidence that has already been led. For this reason, the court will not grant an amendment that will make a new case for the parties.

In this case, the Court per His Lordship Akintan stated as follows:

"The facts established in the case are that the appellant lost her claim at the trial court primarily because of the mis-description of the identity of the property in dispute. What the applicants are now seeking so achieve by the proposed amendment is to change the description of the property in dispute. Such an amendment, in my view, would mean that the appellant would probably also have to recast her entire case".

By virtue of Order 25 Rule 8 Abuja Rules and Order 26 Rule 8 Lagos Rules (both of which provisions are similar), the court or judge may at any time and on such terms as to costs or otherwise as may be just, amend any defect or error in any proceedings, subject to Rule 1 of both Orders. It is suggested that this is for the purpose of determining the real questions in controversy or issues raised in the proceedings.

However, the court in Ajike v. Amusa Oba (1962) 1 ALL NLR (pt. 1) 73 at 82, held that prudence requests that it should be an invariable rule of practice for the judge to invite the parties to address him before he amends the writ of pleadings. Also a judge being an umpire needs to exercise caution in order not to give the impression of having descended into the arena of conflict. See Adelaja & 2 ors v. Alade & anor. (1999) 6 NWLR (pt 608) 544 at 561.

The main purpose of amendment is to enable the court determine the real question or issue is controversy between the parties. The court reiterated this principle when it held as follows:

"In the exercise of its discretion as to whether or not to grant an amendment of pleadings, what should guide the court is that an amendment of pleadings for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or cause embarrassment to the other party or where the applicant is acting mala fide or where it will cause injury to the respondent which cannot be compensated by costs or otherwise. This is because the object of courts is to decide the rights of the parties, and not punish them for mistakes which they make in the conduct of their rights."

In this case the court held that one of the several reasons for requiring amendment of pleadings is the need to secure substantial justice. Other reasons are:

a. To bring pleadings in line with the evidence already adduced on record. See SPDC v. Ambah (1964) 1 ALL NLR 176; Woluchem v. Gudi (1981) 5 SC 291. This may happen when evidence is adduced through cross examination and there is need to capture such evidence in the pleadings.

b. To include an additional claim where there is evidence on record to sustain that claim and the parties have canvassed it in the proceedings. See Ibanga v. Usanga (1982) 5 SC 103; Ogidi & 7 ors v. Egba & 5 ors (1999) 10 NWLR (pt 621) 42.

c. To reflect the capacity in which a party sues or is sued or to correct the name of a party but not to introduce an altogether different entity or to substitute a juristic person. See Olu of Warri v. Essi (1958) 3 FSC 94; Okechukwu & sons v. Ndah (1967) NMLR 368.

In accordance with Order 25 Rule 2 Abuja Rules and Order 26 Rule 2 Lagos Rules, the procedure for amendment is made via an application for leave to amend supported by an affidavit exhibiting the proposed amendment may be made to the court and may be allowed on such terms as may be just.

However, in this case the court held that if the application to amend is not contentious, it may be orally made. It is suggested that it may be more appropriate to follow the provisions of the Rules of court and bring a written application.

An amendment relates back to the date of the original document amended. An amended pleading takes effect as though it was the original pleading filed. Here the Supreme Court affirmed that "an amended pleading speaks from the date of original pleading." More often than not, when a statement of claim is amended, the defendant is entitled to make consequential amendments to his statement of defence.

The Court or judge may order any pleading to be struck out for non-disclosure of reasonable cause of action or answer, and where a pleading is shown to be frivolous or vexatious, the court may consequently order the action to be stayed or dismissed or judgment to be entered accordingly as may be just. See. Order 23 Rule 3 Abuja Rules 2018 and Order 17 Rule 17(1) Lagos Rules 2019.

The court may take any of the above actions when an applicant applies by motion or summons, clearly indicating the particular order sought i.e. dismissal or striking out the pleading being attacked and the ground of the attack.

The Supreme Court defined cause of action as follows:

"A cause of action constitutes a bundle of facts and circumstances giving rise to the plaintiff's enforceable claim against the defendant. The facts and circumstances have to be pleaded in the statement of claim -- Ibrahim v. Osim (1987) 4 NWLR (pt. 67) 965... the provision resolves into two crucial factors, thus: the defendant's wrongful act and the consequential damage to the plaintiff. These two must co-exist to constitute a cause of action before the court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength of weakness of the plaintiff's case."

On reasonable cause of action, the court in quoting the dicta of Lord Pearson in Drummond-Jackson v. British Medical Association & ors. (1970) 1 WLR 688 at 696, Oguntade JSC had this to say:

"No exact paraphrase can be given, but I think reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered. If when those allegations are examined, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out."

See also the case of Thomas v. Olufosoye (1986) 1 NWLR (pt 18) 669 at 682.

In this case the Supreme Court in relying on the English case of Hubbucks & Sons Ltd v. Wilkinson (1899) 1 QB 86at 91 held that the application for striking out on the grounds of failure to disclose reasonable cause of action is only appropriate in cases where:

"...It is obvious so that the court can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he seeks... In deciding whether there is reasonable cause of action for this purpose, only the statement of claim shall be looked at. The Judge is not entitled to look at the statement of defence"

In this case the court held that a claimant may apply to strike out a statement of defence for failing to disclose a defence or a reasonable defence.

In this case the court observed that pleadings may be struck out on ground of being frivolous or vexatious. A clear scenario was witnessed in this case where an action to revoke letters of administration granted 90 years ago was held to be a frivolous action because it was viewed as not meant to serve any useful purpose other than to waste the time of the court. See also Chaffer v. Goldmid (1894) 1 QB 186; MacDougal v. Knight (1890) 25 QB.

A pleading may be struck out for being an abuse of court process. The term "abuse of court process" simply means that the process of the court has not been used properly and bona fide. In this case the Supreme Court explained the term more clearly when it held:

"The law is that abuse of court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same issues in the other action or actions".

It has also been held that where a plaintiff institute an action against a defendant against whom there is no slightest cause of action, there is abuse of court process and the action ought to be struck out on that ground. See Eshugbayi Eleko v. Frank Morish Baddeley (1925) 5 NLR 65.

A scandalous pleading is one that is needlessly offensive, indecorous and/or indecent. A scandalous allegation need not be untrue to be scandalous. Even if the allegations are true, but they are unnecessary, it may still be struck out on the ground that it is scandalous. For instance, in this case where a plaintiff makes several allegations of misconduct against the defendant in the statement of claim with no claim or relief made out of the allegations, it was held that such allegations are scandalous, not because the allegations were proved to be false per se, but because they were simply meant to harass the defendant.

In this case the court defined consolidation to mean the process whereby two or more actions pending before a court or more courts but within the same jurisdiction are, by order of court, joined tried together at the same time. The actions, though separate and distinct, are tried simultaneously in the same proceeding. Each suit however, maintains its separate identity and must have its judgment given separately at the end of the common trial.

In this case the court observed that for an applicant for consolidation to succeed in his quest for consolidation, he must show that the actions are pending before the same High Court. Although they may be pending before different judges, but they must be judges of the same High Court. Where for example, the actions are pending between the same claimant and the same defendant or different claimants and different defendants in the High Courts of different states, consolidation cannot take place since the order of one High Court does not bind another High Court.

However, if the Rules of Court or law establishing it allows it to transfer a matter pending before it to be consolidated with another suit pending before the High Court of another state, then it is lawful. It is important to note that an action pending before a Magistrate Court cannot be consolidated with another pending at the High Court. See also Iloabuchi v. Ebigbo (2000) 4 SCNJ 46.

For an applicant to succeed in his quest for consolidation, he must show that some common questions of law or fact arise in both or all the causes or that the issues are the same in all the actions and can therefore be properly tried and determined at the same time. And that the rights to relief are claimed in respect of or arise out of the same transaction or series of transactions or that for some reason, it is desirable to make an order under the rule.

It was held in the case of Bailey v. Marchinoness Curson of Hedelston (1932) 2 KB 392, that where the question arise as to the propriety or otherwise of consolidation of two or more actions between a plaintiff and different defendants, the relevant consideration is to see whether the claimant could have joined all the claims in one writ under the rules governing joinder of actions.

Consolidation of suits is for convenience of trial. It is meant to save time and cost that would have been involved if the same issues have to be dealt with in a second trial with the same evidence taken all over again. In this case, the Supreme Court held as follows:

"We pause here to observe that the application to consolidate the two actions was brought by the appellant. The main purpose of consolidation, it has been said, is to save cost and time and therefore, it will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the actions to render it desirable that the whole should be disposed of at the same time."

Where a person who is a claimant in one suit is also the defendant in another suit, there is naturally going to be the problem of who would the claimant be and who would be defendant in the consolidated suits. That is why, where such a situation arises, consolidation may be refused. This is also the case where legal representation is different as where there are several suits by different claimants. See Healey v. Waddington & Sons Ltd. (1954) 1 WLR 126.

However, in this case, such suits were consolidated. Both the trial judge and the Supreme Court regarded Shell B P Co. Ltd as the plaintiffs and Jammal Engineering Nig. Ltd. as the defendants in the consolidated proceedings and referred to them as such in the judgment.

In this case the court stated that in an action for libel where the claimants are different and defences would be different, consolidation would be refused.

In this case, the court observed that for consolidation to be ordered, the dispute in the suits must be between opposing parties. Where the disputes or issues for determination is/are between the claimants themselves or between the defendants themselves, consolidation will not be ordered.

As soon as a suit is consolidated, apart from the fact that the suits retain their individualities in terms of what each claims, the consolidation suit assumes a new character to the extent that the judge before whom the consolidated suits are tried assumes full control of the proceedings. In other words, as soon as two or more suits are consolidated, the parties become no longer bound by directions given when the suits were being heard as separate suits but, rather by the directions given by the judge who is hearing the consolidated suits. Consolidation only unites the cases so consolidated for the purpose stated in the order. See Olateju v. Commissioner, Lands & Housing, Kwara State (2010) 14 NWLR (pt. 1213) 297.

One error that judges sometimes make when dealing with consolidated suits is that of treating the consolidated suits as one suit. The point has been made before that consolidation does not mean that the various actions have become one suit. It is simply a procedure whereby two or more suits are tried together in one proceeding. Therefore, where a judge hears consolidated actions, he must deliver judgment in each of the suits. Where he delivers on judgment in respect of all, he would be wrong. See also Diab Nasr v. Complete House Enterprise Ltd. (Supra) where the court emphasized that when two or more suits have been consolidated, there must be a determination, on the merit, in the two or more consolidated suits after issues have been properly joined.

The requirement that the trial judge must deliver judgment in each of the consolidated suits is not a mechanical requirement but one of substance. Thus, where, it can be shown that the trial judge dealt with all the issues raised in the suits, it would suffice. See Nkuma v. Odili (2006) 6 NWLR (pt. 977) 587.

Deconsolidation of suits means to separate suits that have already been consolidated, for the purpose of having the suits tried differently. This usually happens when the consolidation was done in error or when it is found out that the consolidation ought to have been done in the first place.

In some cases, it is during the trial of the consolidated suits that it becomes obvious that the suits cannot be tried as consolidated suits. While any of the parties may apply for deconsolidation, the judge may suo motu order the deconsolidation of suits in the interest of justice. Although the Lagos and Abuja Rules of court do not provide expressly for deconsolidation, in the interest of justice, the court can make an order of deconsolidation under its inherent power.

The union between the suits in the name of consolidation is not for eternity or one that is indissoluble. Where judgment is delivered and a party is not satisfied with the judgment, he may appeal against the judgment as it affects him in one of the consolidated suits. He need not appeal against all the cases consolidated unless his complaints cover all the other cases.

Discovery of facts and discovery of documents serve the purpose of further narrowing the issues between the parties. This is one of the advantages of suits commenced by writ of summons. It appears fairly certain that the use of interrogatories and discoveries is not available in suits commenced by originating summons as these processes are extraneous to originating summons.

It is rightly said that litigation is not a game of "hide and seek". Parties are required by law to put their adversaries on notice of what they intend to rely on in the prosecution or defence of their respective cases as the case may be.

Interrogation, the single of the word "Interrogatories" means the act or process of questioning in-depth or questioning as a form of discourse. It is a form of intensive questioning.

In civil proceedings, interrogatories are a set of written questions drawn up for the purpose of being propounded to a party, a witness or other person having information of interest in the matter. They are pre-trial discovery device consisting of written questions about the case submitted by one party to another party or witness to which he demands answers.

In this case, the court held that interrogatories help a party to elicit admissions that support the case of the interrogating party as facts admitted need no further proof. Other benefits are:

i. It reduces the time that is otherwise wasted in eliciting simple information in the witness box;

ii. It further narrows down the issues between the parties;

iii. It helps in ascertaining to some extent the case of the opponent and the facts he is going to rely on at the trial;

iv. It creates estoppels. For example, any fact that is elicited from a party during interrogatories forms part of the record of the court from which he cannot subsequently resile.

One common mistake particularly with young practitioners is to see interrogatories as cross-examination where you can ask any question including those touching on credit and position in life of the witness. It is not every question which would be permitted in cross-examination under the Evidence Act that would be permitted under interrogatories. For one, every question asked in interrogatories must be relevant to the case, that is, either to a fact directly in issue or to a fact relevant to a fact in issue. See also Saunderson v. Baron Von Radeck (1905) 119 LTJ 33.

The position of the law is that once a contract or judgment has been reduced into writing, oral evidence cannot be permitted to alter or contradict the contents of such documents. So, where a party, through interrogatories seeks to find out the contents of a document, such a question would be disallowed. All that may be tolerated with respect to documents would be the existence of such a document and not its contents.

The only exception may be as permitted by the Evidence Act as regards a private document. See Proviso to section 128 Evidence Act, 2011. In such a case, as the Act permits, oral evidence of the contents of such documents, it appears that interrogatories as to the contents of such documents may be permitted. See Ramsey v. Ramsey (1956) 1 WLR 542.

It is well settled that interrogatories must relate to facts in issue or facts relevant to facts in issue. Not even the new front loading system obviates the need for cross-examination. So, is a party intends to test the credibility of a witness, or his position in life or identity as required by the Evidence Act, it is at the trial that cross-examination can be utilized. Interrogatories cannot be used for this purpose. It is suggested by the English court that interrogatories should be mild.

While a party may be interrogated on relevant facts to his case, it is not permitted that he asks questions on what the other party relies for his own case. All that the law enjoins a party to do in his pleadings is to plead material facts and not evidence. In the same way, an interrogating party is not permitted to demand of the other party the evidence by which he intends to prove his case or defence. In this case it was held that where a party alleges that an act material to his case was done, it is not permissible to ask him to give the names of the persons who were there when the act took place as that would amount to asking him to name his witness.

Interrogatories are never at large. They must have a nexus with the issue or issues before the court. Interrogatories which are completely outside the pleadings are regarded as fishing interrogatories as the pleadings are the fulcrum and parameters of the case.

It is not permissible for a party to use interrogatories to fish for evidence where he has no evidence to prove his case. To properly interrogate, the interrogating party must ask questions that relate to issues raised in the pleadings. Where he has not raised any issue or any triable issue by his pleading, he cannot deliver interrogatories hoping faintly, perhaps, that when he obtains commitment from the other party, then he can make a case. See Rofe v. Kevokian (1936) 2 All E R 1334.

Interrogatories are required to be administered bona fide, not mala fide. Any interrogatory that the court considers oppressive may be disallowed. Oppressive interrogatories are interrogatories which put the party interrogated in an undue burden which is out of all proportion to the benefit to be gained by the interrogating party. Where a party has in his pleadings unequivocally and categorically denied a fact, he should not be interrogated on that fact as he has already made his position known on that fact. Such interrogatories would be disallowed as sheer waste of time of the court.

Discovery of documents is the procedure where a party may require another party to disclose to him before the trial, material documents that are in his possession and control to enable the requesting party to inspect the document and if considered necessary, make copies of such documents. See Order 28 Rule 8(1) Abuja Rules. In this case, the Court of Appeal stated the purpose of discovery of documents as thus:

"...one of the methods fashioned out to ensure transparency in the conduct of cases preventing one side from over-reaching the other and enabling the court to decide on the full facts that are possibly available. Discovery is not limited to giving the claimant a knowledge of what he does not already know but it includes getting an admission of anything which he has to prove on any issue which is raised between him and the defendant."

In this case the court observed that where a party fails to comply with an order to answer interrogatories or to produce documents for inspection, legal consequences attach. The consequences of failure in the case of discovery of documents are the same with the consequences attaching to failure to answer interrogatories. In the case of the claimant, his action may be dismissed for lack of diligent prosecution.

In the of the defendant, he will have his defence, if any struck out and to be placed in same position as if he had not defended and the party interrogating may apply to the Court or a Judge in chambers for an order to that effect and an order may be made accordingly.

In this case the court held that admissions made in reply to interrogatories are conclusive of the facts admitted.

Settlement of issues is a veritable tool in the hands of the judge to manage cases before him and reduce the length and inconvenience of trial. Apart from agreeing on the issues for trial, the trial judge has powers under the rules to hear some applications during this stage and may make any order including an order to dismiss a claim or grant some reliefs without necessarily going to trial even if the effect of such orders is the determination of the substantive suit. In some cases, the resolution of a material question at the interlocutory stage may determine the entire suit.

In this case the Court of Appeal considered the provisions of Order 25 Rule 3(c) and Order 19 Rule 4 of the Lagos Rules, 2004 both of them in pari material with Order 25 Rule 2(c) and Order 19 Rule 4 of the 2012 Rules (as well as Order 27 R 10(2)(c) and Order 20 R 4 of the 2018 Rules Abuja) and held that the pre-trial (case management) judge has the power to gibe judgment on admission at the pre-trial conference without necessarily waiting to get to the actual trial stage.

This is used to compel a witness to come to court or before an examiner or referee to bring with/her certain documents in his/her possession specified in the subpoena. The court observed in this case that when this subpoena is served on a party, the purpose is just to tender a document, as the authorities appear settled that a witness brought to court on a subpoena duces tecum is not liable to give evidence on oath or be cross-examined. See also Edoho v. AG Akwa Ibom State (1996) 1 NWLR (pt. 425); Famakinwa v. U.I. (1992) 7 NWLR (pt. 255) 608. It must be noted, however, that a subpoena simplicita would also require the witness to do both. See Lasun v. Awoyemi (2009) 16 NWLR (pt. 1168) 513.

In this case, the Court of Appeal observed that a subpoena ad testificandum et duces tecum is used to compel a witness to come to court to give evidence and also to bring with him/her certain documents in his/her possession specified in the subpoena.

However, where counsel does not want the witness to be cross-examined, then, it is not safe to use this subpoena because when this subpoena is served on a party, the purpose is not just to tender a document but also to testify. It must be noted, as earlier mentioned, that a subpoena simplicita would also require the witness to do both.

In this case the Court of Appeal held that: "The general provision of the Practice Direction on front-loading of witness depositions on oath only contemplates willing and voluntary witness and not one who has to be compelled by an order of court to testify by way of subpoena. It is not logical therefore that a party should prepare witness deposition for his adversary who is a respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning... let non cogit ad impossibilia (that is to say the law does not command the impossible."

The court takes disobedience of its orders, including a subpoena, very seriously. In this case, the respondent in an election petition, served on the appellant, a subpoena to produce the documents used in the election in question, but the appellant failed to do so. When the respondent sought to tender the subpoena in evidence as proof of the appellant's failure, the appellant's counsel objected to its admissibility. The Court of Appeal held:

"INEC was subpoenaed to produce the documents used in the elections, and its counsel argued before the tribunal when he objected to the subpoena being admitted in evidence. Any disobedience to a subpoena is a quasi-criminal offence and is punishable with three months' imprisonment. Being subpoenaed before a tribunal is a very serious matter, and not one that can treated with levity. Thus, the person must produce the documents as commanded in the subpoena."

Failure to obey a subpoena would amount to contempt and such a person would be dealt with accordingly unless the person has applied to have same set aside. See also Attorney-General Western Nigeria v. African Press Ltd. & Ayo Ojewunmi (1965) 1 All NLR 6. See R v. Agwuna (1949) 12 WACA 456.

A suborned witness is a witness who has agreed for a fee to testify on behalf of a party. The difference between a subpoenaed witness and a suborned witness is that the evidence of one is taken as any piece of evidence before the court as that of someone who has no interest in the matter. In the case of the other, the court takes his testimony with suspicion. As it relates to a suborned witness, the Court of Appeal held:

"A contract where a person undertook to testify for a fee is immoral, illegal and contrary to public policy and such a witness is said to be a suborned witness. By inference, the testimony of a suborned witness is always treated with suspicion. A witness in any judicial proceedings is not supposed to get money to testify to save anybody. He is supposed to tell the truth as he saw it to enable the court or tribunal do justice. If any fee is payable, it should be a purely nominal allowance to cover his travelling expenses and no more."

According to the court in this case, demurrer was derived from the Latin word "demorare" which means to "wait" or "stay". A party may make a demurrer application to challenge his opponent's pleading on a point of law, while he refrains from pleading, until the determination of the demurrer.

This procedure has been abolished in virtually all the rules of procedure. See Order 23 Rule 1 of the Federal Capital Territory Abuja (Civil Procedure) Rules 2018; Order 24 Rule 1, of the High Court of Lagos State (Civil Procedure) Rules, 2019 subsequently referred to as the Abuja Rules 2018 and the Lagos Rules 2019 respectively.

An application under this procedure, if brought before the hearing of the suit, must be made by motion on notice setting out the point of law for determination. See Order 43 Rule 1 Abuja Rules 2018 and Lagos Rules 2019. Such application may also be made orally provided all the parties are in court and consent thereto.

An application can only be made in lieu of demurrer after the defendant has joined issues with the claimant by filing a statement of defence. This distinguishes the proceedings in lieu of demurrer from a demurrer procedure. See Order 23, Rule 2 (1) and 24 Rule 2 (1) Abuja and Lagos Rules 2018 and 2019 respectively.

The Court of Appeal stated the rationale behind settlement of issues in this case, thus:

"The settlement of issue by the parties clearly and precisely defines the issue for trial. The essence of the issue settled is that if the court found after the trial of the only issue, incidence of armed robbery is, expressly or impliedly, excluded from condition for liabilities by the Appellant the Respondent's claim fails and would be liable to dismissal otherwise the Appellant loses and the Respondent would be entitled to all the reliefs sought in his claim. The nature of the issue settled does not admit of further investigation of other issues the parties having so agreed."

See also Per Ekpe, J.C.A. decision in Maximum Insurance Company Ltd v. Owoniyi (1994) 3 NWLR (pt. 331) 178 at 194.