Odey V. Alaga & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The first respondent in this appeal, Chief John Alaga, by way of Originating Summons, instituted an action at the High Court of the Federal Capital Territory, Abuja, on October 5, 2020. He sought judicial responses to the following questions:
- Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended); the 1st Defendant gave and/or supplied false information to the Defendant in his INEC form CF001 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact is not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on September, 2020 at Ogoja Government Secretariat, Ogoja, Cross River State, wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety?
- Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the Peoples’ Democratic Party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant?
He consequently, sought the following reliefs:
(a) A declaration that the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River-North Senatorial bye-election scheduled to hold on 31st October, 2020, or at any other date, whereas he has no such educational qualifications;
(b) A declaration that having given and/or supplied false information relating to his educational qualifications in his statutory forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(c) A declaration that the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government secretariat, Ogoja, Cross River State, wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety;
(d) A declaration that the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020, at Ogoja, Cross River State, for the purposes or nominating its candidate for the Cross River North Senatorial bye election was not conducted by the national body of the party and invalid, illegal, null and void;
(e) A declaration that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye elections scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the Party nor monitored by the 2nd Defendant;
(f) An Order of Injunction restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible to contest for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(g) An Order of Injunction restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognizing or in any other manner according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name on the result sheet, ballot paper or any other document or material for the said bye election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) of the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(h) And for such further or any other Orders as this Honorable Court may deem fit to make in the circumstances.
Upon being served with the Originating Summons, the second respondent filed a Counter Affidavit on October 14, 2020 and served same on the first respondent. The third respondent herein [INEC] also filed a Counter Affidavit on October 16, 2020, to the Originating Summons. On October 20, 2020, parties adopted their written addresses in support of the processes filed. Judgment was reserved.
On November 4, 2020, the trial Court, in its judgment, dismissed the case of the first respondent in its entirety. It held, inter alia:
a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye election;
b. That the Cross River North Senatorial primary election of the People’s Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial candidate of the PDP was conducted with the authentic and legitimate Delegate List of the Ward and Local Government Areas Executives of the Party as shown by exhibits B Series and C;
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the People’s Democratic Party for the Cross Rivers North Senatorial Bye election scheduled to hold on 31st October, 2020 or at any other date as clearly shown by exhibit D;
d. The primary election of the People’s Democratic Party for the Cross River North Senatorial held on 5th September, 2020, was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as shown by exhibit E;
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the List of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020, forthwith within 48hours;
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the People Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020.
Dissatisfied with the judgment of the trial Court, the first respondent, on November 12, 2020, appealed to the Court of Appeal, Abuja Division, [hereinafter, simply, referred to as “the lower Court”], vide Notice of Appeal containing five Grounds of Appeal The lower Court heard the appeal. On December 17, 2020, it delivered its judgment, wherein it dismissed the first respondent’s appeal and affirmed the decision of the trial Court.
The appellant herein, on December 24, 2020, filed an application before the lower Court. He prayed for leave to appeal against the judgment of the lower Court to this Court as an interested party. The said application was granted on December 29, 2020. On the same day, the appellant filed his Notice of Appeal against the judgment of the lower Court to this Court.
The appellant raised four issues for the determination of his appeal. They were couched thus:
- Whether the action that gave rise to the appeal before the lower Court was not statute barred, thus robbing the lower Court of any vires to affirm the consequential orders made by the trial High Court?
- In view or the 1st respondent’s lack of locus standi to institute the action (as claimant) before the trial High Court, coupled with the manifest fact that the action itself was a crass abuse of the processes of Court; and juxtaposed with the fact that the entire action was not properly constituted, (the proper parties not being before the two lower Courts), whether the lower Court did not fall into grave error by affirming the consequential orders made by the trial High Court?
- Considering the fact that the trial High Court rightly dismissed the claimant’s case before it, as well as the circumstances of the case and judicial precedents on the subject, whether the lower Court did not fall into serious error in its affirmation of the consequential orders made by the trial High Court?
- Considering the subject matter of Suit No: CV/77/2020, Between Chief John Alaga v. Jarigbe Agom Jarigbe and Anor, whether the FCT High Court had the territorial jurisdiction to make the consequential orders affirmed by the lower Court?
In his brief of arguments, the first respondent set out a sole issue for determination:
Whether the Court of Appeal was right in affirming the consequential orders made by the trial Court in its Judgment?
On his part, the second respondent concreted these issues for the determination of the appeal;
- Whether the suit of the 1st Respondent herein at the trial Court was statute barred, by virtue of Section 285 (9) of the 1999 Constitution, thereby divesting the Court below of jurisdiction to affirm the consequential orders of the trial Court?
- Whether, having regard to the crux of 1st Respondent’s suit at the trial Court, which sought the disqualification of the 2nd Appellant under Section 31 [5] of the Electoral Act, 2010 [as amended], the 2nd Respondent can be said to have lacked the locus standi in instituting the suit, thereby making the affirmation of the consequential orders of the trial Court by the Court of Appeal wrong?
- Whether having regard to the absence, of any ground of Appeal by the 1st Respondent at the Court of Appeal, challenging the consequential reliefs granted in favour of the 2nd Respondent by the trial Court, the Court of Appeal was wrong in affirming the consequential orders made by the trial Court?
- Whether having regard to the crux of the 1st Respondent’s suit at the trial Court, the trial Court did not have the territorial jurisdiction over the suit, thus making the affirmation of its consequential orders by the Court of appeal wrong?
The third respondent in its brief of argument adopted the three issues formulated by the appellant. In response, the appellant filed a reply brief to the first to third respondent’s brief of argument on the 14/2/2021, 31/1/2021, and 04/2/2021, respectively.
The first respondent, by Motion on Notice, filed on January 26, 2021, prayed the Court for:
- An Order of this Honorable Court striking out the appellant/respondent’s Notice of Appeal dated and filed on 9th day of December 2020;
- An Order setting aside the service of the appellant/respondent’s Notice of Appeal dated and filed on 29th day of December 2020 on the 1st respondent/applicant, which service was purportedly made on 8th January, 2021.
And for such further order or other orders as this Honorable Court may deem fit to make in the circumstances of this case.
The said application was supported by an affidavit. Exhibit JA1 and JA2 were attached thereto. He also filed in support of the application, a further and better affidavit and a twenty-page written address. In opposition, the appellant filed a ten-paragraph Counter Affidavit attached with exhibits on February 10, 2021. He also filed a written address on the same day.
The second respondent also filed a Motion on Notice on January 22, 2021. He prayed for:
- An Order of this Honourable Court striking out the Notice of Appeal dated and filed on 29th December, 2020, as shown at pages 1102-1109 of the record of appeal, for being incompetent, as the said incompetence affects the jurisdiction of this Honourable Court to entertain same.
- And for such further Order or orders as this Honourable Court may deem fit to make in the circumstance of this appeal.
The application was supported by a 14-paragraph affidavit and two exhibits. He also filed a further and better affidavit, a reply on points of law and a written address. In response, the appellant filed three affidavits: the first affidavit contained ten exhibits, while the second affidavit contained two exhibits and the third affidavit contained six (6) paragraphs. He also filed a further and better affidavit on February 141 2021 and a written address on February 11, 2021.
At the hearing of the appeal, all the parties adopted and relied on their respective processes in support of their positions. In the first respondent’s written address, filed on February 10, 2021, a sole issue was formulated for determination as follows:
Whether from the facts and circumstances of this application, the application ought to be granted.
In reply, learned senior counsel for the appellant, in his written address, filed on February 10, 2021 raised a sole issue for determination as follows:
Considering the entire circumstances of this case, alongside applicable precedents of the Honourable Court on the subject of service and notice, inter alia whether this Honourable Court will not dismiss the applicant’s motion filed on January 22, 2020?
ARGUMENTS ON THE PRELIMINARY OBJECTION
Arguing the sole issue in their Preliminary Objection, the learned senior counsel for the first respondent submitted that, just like a writ of summons or any other mode of commencement of action is the originating process by which a claimant/plaintiff/petitioner or applicant commences a suit in a High Court, a Notice of Appeal is the originating process by which an appeal is commenced in an appellate Court. It is in his submission, a fundamentally important process. Thus, when found to be defective, it must be struck out.
He further submitted that the appellant’s failure to serve his Notice of Appeal on the first respondent, personally, is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. He added that Order 2 Rules 3 and 4 of the Supreme Court Rules make it mandatory for the Notice of Appeal to be served on all the respondents.
He contended that a breach of the rules is not a mere irregularity but a fundamental breach that touches on the foundation of the appeal,Rossek v ACB Ltd [1993] 8 NWLR (pt 312) 382, 437; Attorney General of Lagos State v Dosunmu (1989) 3 NWLR (pt III) 552, 556; Popoola v Babatunde [2012] 7 NWLR (pt 1299) 302, 331.
He canvassed the view that whatever the appellant/respondent, purportedly, served amounted to nothing given the fact that the address endorsed thereon was a wrong address in view of the combined effect of Order 2 Rules 3 and 4 and Order 6 Rule 2 (1) of the Supreme Court Rules.
On his part, learned senior counsel for the appellant, who dwelt on the sole issue, submitted that the endorsement of an address for service on the face of application, made the Notice of Appeal competent. In the circumstance, in his submission, it cannot be set aside. He added that what can only be set aside is the service on the address. He took the view that since the law is that substituted service can be ordered with or without a failed attempt at service, the issue of the address for service actually pales into insignificance. The first respondent therefore cannot be insisting on personal service on him when there is a Court order obviating the need for such personal service.
He contended that an appeal is only decided on the basis of the record of appeal.
Paragraphs 6, 7, 8, and 10 of the first respondent’s affidavit are not only argumentative, he contended, but are also legal conclusions and prayers contrary to the mandatory provisions of Section 115 of the Evidence Act. He prayed the Court to strike them out,Inakoju v Adeleke (2007) 4 NWLR (pt. 1025) 423, 607-608; Buhari v INEC (2008) 19 NWLR (pt. 1120) 246, 391.
Learned senior counsel for the appellant on February 16, 2021, forwarded some unreported decisions of this Court, through the Office of the Chief Registrar of this Court for the consideration of this Court. I received it on February 19, 2021.
The second respondent, in his written address filed on February 10/2/2021, set out two issues for determination thus:
- Whether the Notice of Appeal filed by the appellant on the 29th December, 2020 is not incompetent, having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court?
- Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that the grounds of appeal are not derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent?
Learned senior counsel for the second respondent submitted that the lower Court, whose decision the appellant is appealing to this Court, did not in any portion of its judgment make any pronouncement on the consequential orders made by the trial Court. He explained that this was because the first respondent, who appealed the judgment of the trial Court to the said lower Court did not in his Notice of Appeal challenge the consequential reliefs made by the said trial Court.
He further submitted that the consequential order which the trial Court made was not one of the issues that arose at the lower Court for determination. It did not therefore form part of the ratio decidendi of the said judgment.
He further submitted that the Notice of Appeal, which the appellant filed on the December 29, 2020, does not have the second respondent’s address for service. Above all, it was never served on him. It is therefore incurably defective. As a result, it rendered this appeal incompetent.
He contended that the non-endorsement of the address of the second respondent on the Notice of Appeal and non-service of the said Notice of Appeal on him are against the provisions of Order 2 Rule 3 (1) (b) of the Rules of this Court.
On his part, learned senior counsel for the appellant submitted that there is no dispute about the fact that the second respondent had filed his respondent’s brief, to which the appellant has also filed a reply. In the respondent’s brief, he pointed out, no challenge to service was made showing that the present motion is afterthought. He further contended that by filing his brief, the respondent had waived any perceived or imaginary irregularity in service, Ediru v FRSC [2016] 4 NWLR (pt. 1502) 209.
He further submitted that the essence of service is to give notice to a party in litigation of the pendency of Court proceedings so that such a party can brief counsel to represent his interest in Court and take advantage of the constitutional imperatives of fair hearing, Saleh v. Abah (2017) 12 NWLR (pt. 1578) 100, 126.
In his submission, the facts of the cases cited by the applicant are different from the present scenario. In the instant case, he explained, there are distinct addresses endorsed against the names of each respondent, particularly, the applicant.
In his reply, learned senior counsel for the first respondent submitted that an order was obtained through misrepresentation of facts. He explained that, as at the time it was granted, the appellant had purportedly served the Notice of Appeal, filed his reply brief to the second respondent’s brief of argument. This was also at a time when the application of the second respondent praying for the striking out of this appeal was pending before this Court.
He urged this Court to discountenance the arguments canvassed by the appellant. He explained that the appellant intentionally, decided not to serve the second respondent the Notice of Appeal, by first not endorsing his address for service and serving a stranger the notice of appeal meant for him.
RESOLUTION OF THE ISSUE IN THE OBJECTION
By way of prefatory remarks, I note that a preliminary objection is a pre-emptive strike. Its resolution will determine whether or not the appeal will be determined on the merits, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F. Indeed, that is why I am under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiag [2002] 10 NWLR (pt 7760 455, 468; UBA Plc v ACB (2005) 12 NWLR (pt 939) 232; Goji v Ewete [2001] 15 NWLR (pt 736) 273, 280.
Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Ltd (2011) LPELR-8807; Ananeku v. Ekeruo [2002] 1 NWLR (pt 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2.
My Lords, as indicated earlier, by Motion on Notice filed on January 26, 2021, senior counsel for the first respondent prayed the Court to strike out the appeal due to non-service on the first respondent. It is common ground that the first respondent was not served personally with the said Originating process, that is, the Notice of Appeal. This much is implied in the belated attempt to remedy this defect by the appellant’s application for an order of Court for substituted service.
This Court obliged the applicant with an order for substituted service: an order, which the learned senior counsel for the first respondent explained was obtained through misrepresentation of facts. In his submission, as at the time it was granted, the appellant had purportedly served the Notice of Appeal, filed his reply brief to the second respondent’s brief of argument, This was also, at a time when the application of the second respondent, praying for the striking out of this appeal, was pending before this Court.
Chief Olanipekun, SAN, one of the most accomplished Senior Advocates at the Inner Bar, did not dispute this state of affairs. Rather, his position is that failure to effect personal service of a Notice of Appeal is a mere irregularity.
With profound respect to the erudite senior counsel, this cannot be. As this Court explained, in a most magisterial manner, the term irregularity in respect of procedure, is often construed to denote something that does not fundamentally taint or besmirch a procedure as to render it invalid or a nullity. In other words, an irregularity is deemed to be curable.
However, personal service of an originating process, like a Notice of Appeal,Akinloye v Adelakun [2000] 5 NWLR (pt 657) 530; Madukolu v Nkemdilim [1962] 2 SCNLR 341; Sken Consult (Nig) Ltd v Ukey (1981] 1 SC 6; NBN Ltd v Guthrie (Nig) Ltd [1993] 3 NWLR (pt 284) 182, is a fundamental requirement of the law, Import Export v Adebayo and Ors (2002) LPELR – 643 (SC); Ihedioha and Anor v Okorocha and Ors (2015) LPELR – 40837 (SC); Olorunyolemi and Anor v Akhagbe [2010] 8 NWLR (pt 1195) 48.
What is more, Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the respondents and a breach of the Rules is not a mere irregularity but a fundamental breach to the foundation of the appeal, Rossek v ACB Ltd [1993] 8 NWLR (pt 312) 382, 437; A.G. Lagos State v Dosunmu [1989] 3 NWLR (pt III) 552, 556; Popoola v Babatunde [2012] 7 NWLR (pt 1299) 302, 331.
As a process that is intimately tied to the Court’s jurisdiction – indeed, it is the fulfillment of such a condition precedent that clothes the Court with competence, Nwabueze v Obi Okoye [1988] 10 – 11 SC 79; Agip (Nig) Ltd v Ezendu [2010] 1 SC (pt 11) 98; Kida v Ogunmola [2006] 6 SCNJ 165; Sken Consult (Nig) Ltd v Ukey [1981] 1 SC 4 – it must be served personally on the respondent unless otherwise directed or ordered by the Court or exempted by the provisions of the law, Akinloye v Adelakun (supra); Madukolu v Nkemdilim (supra); Sken Consult (Nig) Ltd v Ukey (supra); NBN Ltd v Guthrie (Nig) Ltd (supra).
Except in the circumstances exemplified above, [and these circumstances are completely absent in this case], failure to serve a party is a fundamental defect that robs the appellate Court of jurisdiction,Akinloye v Adelakun (supra); Madukolu v Nkemdilim (supra); Sken Consult (Nig) Ltd v Ukey (supra); NBN Ltd v Guthrie (Nig) Ltd (supra). It is not an irregularity that can be waived or deemed waived.
The implication of the non-compliance with the Rules in the circumstance is that the so-called service is ineffective, Sken Consult (Nig) Ltd v Ukey (supra); Iyamu v Aigbiremwen [1992] 2 NWLR (pt 222) 233, 242; Nigerian Nurses Association v A.G. Federation [1981] 11 -12 SC 1.
In effect, it, [that is, ineffective service], is a fundamental vice that vitiates the exercise of the jurisdiction and competence of the Court. It is beyond what can be waived for it is a condition precedent to the invocation of the Court’s jurisdiction, A. G Bendel State and Ors v Aideyan [1989] 3 NWLR (pt 118) 646, Otti v Mobil Oil Nig Ltd [1991] 7 NWLR (pt 206) 700.
This must be so for a Notice of Appeal is the root and foundation of an appeal, lhedioha and Ors v Okorocha and Anor [2016] 1 NWLR (pt 1492) 147, 199; Obimonure v Erinosho [1996] 2 SCNLR 228; Ojo v INEC [2008] 13 NWLR (pt 1105) 577. As such, the Court can only assume jurisdiction over a person where such a person is served with the Originating Process, ACB Plc v Losada (Nig) Ltd [1995] 7 NWLR (pt 4050 26.
My Lords, permit me to set out the views of this Court on this question. In Ihedioha and Anor v Okorocha and Ors (supra), the Court pointed out that:
Service of processes is a threshold issue. It is very important in adjudicatory functions. [It] is an issue that touches on the jurisdiction which is very fundamental. If a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but [also] extrinsic…
See also, Tsokwa Motors (Nig) Ltd v UBA Plc [2008] 2 NWLR (pt 1071) 341; Madukolu v Nkemdilim (supra); Oloba v Akereja [1988] 3 NWLR (pt 84) 508.
In the same case, Ihedioha and Anor v Okorocha and Ors, this Court, persuaded by the compelling reasoning of the Court of Appeal in Odua Investment Co Ltd v J.T. Talabi (1991) 1 NWLR (pt 170) 761, 781-782, adopted that Court’s view that:
In all non-compliance cases, the Court must draw a dichotomy between non-compliance arising directly from non-service of the Court process as opposed to and distinct from non-compliance arising from other procedural aberrations… An indiscriminate loading of the statutory provisions with the available case law without drawing this fundamental and factual dichotomy will end in a blurry appreciation of the legal fog cast surrounding this fairly troublesome area of our adjectival law. In my view, non-service of a Court process is an incurable defect for all times… [Italics supplied for emphasis]
A year after the decision in Ihedioha and Ors v Okorocha and Anor (supra), this Court had another opportunity of reiterating its position in the case of Adegbola v Osiyi and Ors [2017] LPELR -42471 (SC). Speaking for this Court, Musa Dattijo Muhammad, JSC, held that:
… [the] Notice of Appeal is the foundation of the appeal [ ] non-service of the Notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal… Service of an initiating process, which is the Notice of Appeal, is a sine-qua non for a Court to assume jurisdiction over a case. [pages 7- 9; italics supplied for emphasis]
On the status of effective service of the Notice of Appeal, His Lordship, Musa Dattijo Muhammad, JSC, at pages 11 et seq, of the said judgement, [Adegbola v Osiyi and Ors], intoned with oracular finality:
Effective service of the Notice of Appeal… is a condition precedent to the exercise of jurisdiction by this Court. Absence of such service, it follows, is a fundamental omission which bars the Court from assuming jurisdiction to hear and determine the appeal. Proceeding, in spite of the non-service of the Notice of Appeal, will constitute a denial of the [respondent’s] right to fair hearing as guaranteed under Section 36 of the 1999 Constitution. See Madukolu v Nkemdilim (1962) 1 All NLR 587, 595; Estate of Late Chief I. S. Idisi v Ecodril Nigeria Ltd and Ors (2016) LPELR- 40438 (SC)… [Italics supplied for emphasis]
As His Lordship, Musa Dattijo Muhammad, JSC, pointed out above, service of an initiating process, like the Notice of Appeal, has a linkage with the impregnable right to fair hearing enshrined in the Constitutional of the Federal Republic of Nigeria, Ihedioha and Ors v Okorocha and Anor (supra); S.G.B.N. v Adewunmi [2003] 10 NWLR (pt 829) 526; Mbadinuju and Ors v Ezuka and Ors [1994] 8 NWLR (pt 364) 535.
Against this background, where service is not effected as required by law, [in the instant case, the requirement of the law is that an originating process, like the Notice of Appeal, must be personally served on the respondent], the person who was improperly served, is entitled ex debito justitiae to have the so-called service set aside as a nullity, Mark and Anor v Eke [2004] 5 NWLR (pt 865) 54; Kida v Ogunmola [2006] 13 NWLR (pt .997) 377 SC, Teno Eng Ltd v Adisa (2005) 10 NWLR (pt 933) 346, 353, Multichem Ind Ltd v Musa [2013] 8 NWLR (pt 1356) 404 at 418, for, as it is well-known, any breach of the right to fair hearing renders the proceedings a nullity, Chime v Onyia [2009] All FWLR (pt 480) 673, 730-731; lhedioha and Ors v Okorocha and Anor (supra).
Now, as shown above, counsel for the Objectors complained of the belated attempt to remedy the defect of improper service of the Notice of Appeal by the appellant’s application for an order of Court for substituted service.
As indicated earlier, this Court obliged the applicant with an order for substituted service: an order, which the learned senior counsel for the first respondent explained, was obtained through misrepresentation of facts. In his submission, as at the time it was granted, the appellant had purportedly served the Notice of Appeal and filed his reply brief to the second respondent’s brief of argument. This was also at a time when the application of the second respondent, praying for the striking out of this appeal, was pending before this Court.
In my humble view, the approach to that complaint is to set aside the said ex parte order for substituted service, being an order obtained in ignorance of the Objectors’ challenge to the purported service through the said ex parte order. To allow the pendency of the order would mean the sustenance of its validity, Skinner v Carter (1948) 1 Ch. 387; Animistic Ltd v Foreign Compensation Commission (1969) 2 AC 147, 171; Aladegbemi v Fasanmade (1988) LPELR 401 (SC) 24 -25; D- B.
Unarguably, this Court, which made the said ex parte order, retains the inherent powers, in deserving circumstances – which are clearly present in the instant case – to discharge the said order, Bogban v Diwhre [2005] 16 NWLR (pt 951) 297. Two of the circumstances, which empower the Court to so act, are the suppression of the fact of the purported service of the Notice of Appeal and the non-disclosure of the material fact of the pendency of the Preliminary Objection challenging the said service, UTB Ltd v Dolmetsch Pharmacy Nig Ltd [2007] 16 NWLR (pt 1061) 520, 542; Animashaun v Bakare [2010] 16 NWLR (pt 1220) 513, 538. l therefore, enter an order setting aside the said ex parte order of this Court for substituted service of the Notice of Appeal – an order made when the Preliminary Objection against its issuance was still pending.
In all, this preliminary objection on the competence of the service of the said Notice of Appeal succeeds. The need to consider the issues raised in the appeal would therefore, automatically abate, L M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (supra); Ananeku v. Ekeruo (supra); NPA v. Eyamba (supra); UBN v. Sogunro (supra). I have no hesitation in striking out the improper and ineffective service complained of. That shall be the order of this Court.
Preliminary Objection succeeds.
SC.9/2021
