The Appellant was Plaintiff at the trial Federal High Court, Abuja Division. It took out an originating summons ostensibly under Order 7 rule 8 of the Federal High Court Rules 2000. That rule provides:-

Due to an unexplained reason the originating summons sent to the Defendants (now Respondents) was not signed by the Judge, rather, a registrar of the Court by name Ojo, signed the summons. When the originating summons as signed by the aforesaid registrar was served on the Respondents, the 1st Respondent, the Attorney-General of the Federation, reacted by entering an unqualified appearance. The Nigerian National Petroleum Corporation, 2nd Respondent herein, through its counsel, Abdullahi Ibrahim and Co, raised preliminary objection attached to its conditional appearance as follows:

"It is apparent also to mention that the applicant in his submission admits that the record of this appeal was transmitted to this Court in the year 2004. To be precise, same was on the 12th May, 2004 as per the evidence available to the Court. The appeal was therefore deemed to have been entered on that date. The rules of Court make it mandatory on the appellant to file his brief of arguments within 60 days of entering the appeal. The motion at hand was filed on 11th January, 2008 and which is almost four years of entering the appeal. As rightly submitted and argued by the learned respondent's counsel the application sought for in prayers 1- 4 with prayer 2 being incompetent while 1, 3 and 4 are hereby refused. The appeal under the inherent powers of this Court is also dismissed." (See Vol. 2 pages 788-789 of the records).

At the hearing of the preliminary objection, the 2nd Respondent withdrew the second leg of the objection. The 1st Respondent who filed an unconditional appearance, turned round to support the preliminary objection of 1st Respondent.

In arguing the objection learned senior advocate, Ibrahim, submitted that only a Judge must sign the originating summons and the signature of the registrar instead of the Judge on the summons rendered it null and void. He posited that non-compliance with the Rules of Court rendered the originating summons null' and 'void' and in consequence incompetent. Thus, according to this line of argument, there was no competent suit before Court of trial. The Court can only have competent suit before it if the procedural requirements for initiating an action are complied with; therefore if the correct procedure has not been complied with, the Court was duty bound to strike out the matter. This is because the only correct compliance with the Rules confers jurisdiction on the Court. He relied on Sken Consult (NIG.) Ltd. v Ukey (1981) 1 S.C. 6, 25; Western Steel Workers Union v. Iron and steel Workers Union (1986) 3 NWLR (Pt.30) 617, 627; Onifade v. Orayiwola (1990) 7 NNLR (Pt.161) 130, 1669; Ojukwu v Onyeador (1991) 7 NWLR (Pt. 203) 286, 305, 321. In response to this argument, Ladi Williams, Esq. S.A.N. submitted that what actually happened with the originating summons applied for and taken out by the Appellant as Plaintiff, was mere irregularity which did not vitiate the proceedings. He cited Aguda's "Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria" 1995 Edition in Chapter 3 where Uniform Rules of Court Order 2 rule 1 was cited and it says:

This is what is contained in the Uniform Rules of High Courts adopted by many states. The Rules of Federal High Court, in Order 3 rule 1 makes similar provision ad verbatim. Learned trial Judge, in his ruling on this preliminary objection, observed correctly that Appellant as Plaintiff did all he was required by the Rules of Court in taking out Originating Summons and it was the administrative error of a Court official, the Registrar, that committed the "blunder "(as he called it) whereby instead of the Judge in chambers he signed the originating summons. He overruled the objection and held the error was not fatal to the originating summons and was a mere irregularity. This prompted the Respondents appeal to Court of Appeal, Abuja Division which allowed the appeal by holding that the Appellant did not prove that he did all he had to do to take out the originating summons.

Dissatisfied with the decision of the Court of Appeal the Appellant appealed to the Supreme Court.