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  • 2003-05-19
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NNPC vs. Femfa Oil Ltd.

NIGERIAN NATIONAL PETROLEUM CORPORATION

V

FEMFA OIL LIMITED

THE HON. ATTORNEY-GENERAL OF THE FEDERATION

COURT OF APPEAL

( ABUJA DIVISION )

DAHIRU MUSDAPHER, JCA ( Presided )

MOHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA

ALBERT GBADEBO ODUYEMI, JCA ( Read the Lead Judgment )

CA/A/32/2001

THURSDAY, 25TH APRIL, 2002

APPEAL - Findings of fact by trial court - Attitude of appellate court thereto

COURT - Competence of court - What determines - Relevant consideration COURT - Duty on not to act on speculation but proved acts

COURT - Federal High Court - Commencement of action via originating summons - When deemed to have been commenced - Order 7, rule 8 Federal High Court (Civil Procedure) Rules

EVIDENCE - Burden of proof in civil proceedings - On whom lies

EVIDENCE - Proof of fact - Arguments of counsel - Effect on evidence

JURISDICTION  - Assumption of jurisdiction - Duty on court to ensure that conditions precedent thereto are satisfied

JURISDICTION - Competency of court - Determination of

JURISDICTION - Issue of jurisdiction - Fundamental nature of - What determines - How determined

JURISDICTION - Pre-requisites of - Madukolu vs. Nkemdilim (1962) 1

ALL NLR 587 at p. 589 applied

LEGAL PRACTITIONER - Arguments of counsel - Effect on evidence

PRACTICE AND PROCEDURE - Irregularity which will not vitiate proceedings - Consideration and description of

PRACTICE AND PROCEDURE - Originating summons - When properly issued under Order 7, rule 8, Federal High Court (Civil Procedure) Rules

Issues:

1.            Did the signing of the originating summons by another person other than the Judge as provided by Order 7, rule 8 of the Federal High Court (Civil Procedure) Rules, 2000 amount to an irregularity or a nullity and if it amounts to irregularity, can the irregularity be cured.

2.            Whether or not the 1st respondent has discharged all its obligations and/or burden imposed upon it by the rules of court when it paid for and filed the originating summons at the registry of the court.

Facts:

By an originating summons filed at the registry of the Federal High Court, Abuja Judicial Division, the applicant sought for a declaration that the purported acquisition by the Federal Government of 40% out of respondent’s 60% interest of the claimant’s oil producing licence is illegal, unconstitutional and void and of no legal consequences whatsoever.

Upon service of the summons on the 2nd respondent, the 2 nd respondent caused a conditional memorandum of appearance to be filed on its behalf. Simultaneously with the entry of conditional appearance, 2nd respondent filed a notice of preliminary objection to the hearing of the suit on the grounds of non-compliance with Order 7, rule 8 of the Federal High Court (Civil Procedure) Rules, 2000 and non-compliance with the statutory provision for resort to arbitration.

The preliminary objection was argued. In a considered ruling, the learned trial Judge dismissed the objection. Dissatisfied with the ruling, the 2nd respondent/applicant/appellant appealed.

Order 7, rule 8 provides thus:

“8.          An originating summons is issued upon its being signed by a

Judge in Chambers.”