Augustine Nwangwu & Ors V. Prince Nwafor Austin Nwosu & Ors (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the decision of Hon. Justice Celine Nweke delivered on the 26th of February 2009, at the High Court of Anambra State holden at Ekwulobia whereby she refused an application to set aside the order of Court made on the 8th of October 2007, which relisted Suit No. AG/117/05, (the subject matter of this Appeal) which had been struck out.
ANTECEDENT
The suit, the subject matter of this Appeal was instituted by Writ of Summons filed on the 3rd of November 2009.
The parties had filed their respective pleadings in support of the suit which commenced in September 2005, and in respect of the reliefs adumbrated in Paragraph 15 of the amended Statement of Claim, dated 18th January 2006.
Intervening issues sprung up that stalled the hearing of the case, and there were also moves by the parties to settle the matter out of Court.
The Plaintiffs had based on the belief that the moves for settlement was being made in good faith, and soft pedalled in the prosecution of this suit.
?J. H. C. Okolo (SAN) of Counsel for the Plaintiffs took ill, and
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had to travel out of, the country for medical treatment. He assigned this matter to Barrister M. N. Kalu.
The said M. N. Kalu, Esq. conceded to the Suit being struck out, which was struck out on the 2nd of July 2007.
By motion filed on the 3rd of November 2009, the Plaintiffs/Applicants sought relistment of the Suit struck out on the 2nd of July 2007 – Pages 51-56 of the Record of Appeal.
The Suit was relisted on the 8th of October 2007 – Page 57 of the Record of Appeal.
By motion filed on the 1st of September 2008 the 2nd set of Defendants/Applicants, sought an order of Court setting aside the order of Court made on the 8th of October 2007, relisting the Plaintiffs suit –
Pages 58 – 59 of the Record of appeal.
The application was refused on the 26th of February 2009 thereby culminating in this Appeal. – Pages 74-76 of the Record of Appeal.
The Appellants are dissatisfied with the decision and have appealed it. They filed a Notice of Appeal on the 3rd of November 2009 (Pages 77-79 of the Record of Appeal) encapsulating three (3) Grounds of Appeal.
?The Appellants filed their Appellants’ Brief of
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Argument on the 21st of March 2014.
It is settled by D. C. Maduechesi, Esq.
The 1st set of Respondents filed their Brief of Argument on the 8th of December 2010. It is settled by J. H. C. Okolo, SAN.
There is also a Notice of Preliminary Objection filed by the 2nd and 3rd Respondents on the 8th of October 2011.
The 4th, 5th and 6th Respondents filed their joint Brief of argument on the 17th January 2016. It is settled by Chief Chris Agbanwa.
The Appellants filed what they termed “THE BRIEF ARGUMENT BY THE APPELLANTS/APPLICANTS IN OPPOSITION TO THE NOTICE OF PRELIMINARY OBJECTION DATED 7TH DAY OF OCTOBER 2010 BY THE FIRST SET OF RESPONDENTS” This was on the 9th of May 2011.
There is also a Counter affidavit filed on the 11th of October 2010 in response to Respondents Preliminary Objection.
The Notice of Preliminary Objection is predicated on the fact that the Suit, the subject matter of this Appeal was struck out on the 2nd of July 2007 but was subsequently relisted on the 8th October 2007.
?It was nearly one year after the relisting of the Suit that the 2nd set of defendants brought an application
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filed on the 1st of September 2008, for an order setting aside the order of Court made on the 18th of October 2007, which Order was made in the absence of the Applicants relisting the Suit.
The Question now is whether this Honourable Court has jurisdiction to entertain any question founded on the Appeal as filed.
It is the contention of the Preliminary Objector that the subject matter of this Appeal has to do with an Interlocutory order made by the lower Court on the 26th of February 2009.
They further contend, that being interlocutory, it becomes one that involves the exercise of the Courts’ discretion, and LEAVE is required in order to approach this Honourable Court. That the provision of Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 confers the parties of right of appeal on several Grounds, particularly where the appeal involves questions of LAW ALONE or as against FINAL DECISIONS of the lower Courts.
That Section 242 (2) subjects those rights, to the provision in Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 which stipulates that –
“- an appeal shall lie from
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decision of those lower Courts to this Court WITH THE LEAVE of either of those Courts or this Court”.
The necessary implication of this is that in all such cases, leave is a must in the Courts exercise of its discretion in entertaining the Appeal. That Section 14 (1) Part 11 of the Court of Appeal Act 2004 also supports this provision of the Constitution.
That if no proper appeal has been filed, there is no appeal for this Court to entertain.
They submit that the issue of lack of service of processes does not arise here.
Reacting to the Preliminary objection the Appellants posited that the issue that arises is whether the instant appeal is competent, taking into consideration, the circumstances surrounding the issue of service of the Court process that gave rise to the pending suit at the trial Court?
This takes me to the Grounds of Appeal filed in the Notice of Appeal. This is because the Notice of Appeal is the originating process in this Appeal.
GROUNDS OF APPEAL
GROUND 1
“The trial Court misdirected itself in law in not approaching that the issue of service of process questions the Jurisdiction of
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the Court to entertain any matter before it”.
GROUND 2
“The trial Court erred in law in dismissing the application of the Applicants to set aside the proceedings heard in their absence for non service of process on them”.
GROUND 3
“The trial Court erred in law in failure to resolve the issue of service by calling oral evidence of the parties in the face of conflicting affidavit and the counter affidavit of the parties on the issue of service”.
– Pages 77-79 of the Record of Appeal.
The fulcrum of the Appeal, as depicted in the Grounds of Appeal adumbrated above is the issue of “Service”.
Let me quickly observe here, that while the Preliminary Objector harps on the issue of failure to seek leave before this Appeal was filed, thereby rending the Appeal incompetent at its threshold, the Grounds of Appeal has as its sole matter, the issue of service which borders on JURISDICTION.
Jurisdiction is the very soul of any matter before any Court. It is the spirit which gives life to a matter in Court. Absence of that spirit renders the cause or matter dead and lifeless at its very threshold. And it cannot be resurrected.
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Paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the affidavit in support of the motion to set aside filed on the 1st of September 2008 are hereby reproduced verbatim.
1. That I am the 5th Defendant amongst the co-defendants in this suit and swear to this affidavit for myself and on behalf of and with the authority of the other co-defendants/Applicants is the 4th and 6th co-defendants.
2. That on the 2nd July 2007 the plaintiffs who had filed a notice of discontinuance of their case against all the defendants in this suit before same was fixed for hearing and the suit was struck out accordingly.
3. That subsequently the plaintiff filed a motion on notice dated 5th July 2007 praying the Court to relist the said suit again.
4. That the said motion was not served on the co-defendants and I was informed by my counsel Chief J. C. Ifebunandu and I verily believe him that he was not served with a copy of the said motion on notice.
5. That the co-defendants and their solicitor did not know about the pendency of the said motion praying for relistment of the suit which was discontinued by the plaintiffs.
6. That on the 8th of
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October 2007 while the co-defendants were unaware of the said motion same was heard in their absence and granted.
7. That my counsel chief J. C. Ifegbunandu informed me and I verily believe him that he would have opposed the motion for relistment of this suit if he was served with same.
8. That it is in the interest of justice that the proceedings of the 8th day of October 2007 be set aside while a copy of the said motion be served on the co-defendants/Applicants.
The learned Counsel to the Respondents filed a Counter affidavit in opposition to the motion on the 24th of October 2008. There is no where on this Counter affidavit where Mr. Emmanuel Ossai, litigation clerk in the chambers of J. H. C. Okolo (SAN) did depose to the fact that he had the consent and authority of anybody to depose to the facts in the said Counter affidavit. This breaches the rules of Evidence. See Section 115 (3) and (4) of the Evidence Act 2011.
?Moreso, there is no where in the paragraphs of the Counter affidavit where Mr. Ossai did depose to the fact that he swore to an affidavit of service to buttress his assertion that he personally served on J. C.
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Ifebunandu of Counsel of No. 162 Zik Avenue Uwani Enugu.
A Counter affidavit in opposition to the motion to set aside was also deposed to by one Barrister Ifeanyichukwu Uzuagu, Legal Practitioner and filed on the 23rd of June 2009 – Pages 70-71 of the Record of Appeal. And on behalf of the 2nd-3rd Plaintiffs at the lower Court.
In Paragraph 5 of their Counter affidavit he deposes to the fact that –
“It is not only relevant to find out whether the 4th-5th defendants were served with the motion to relist but after the motion, to relist had been taken and the matter relisted how long did it take the said respondents and their counsel to react against the said relistment”.
With respect, the issue of service is fundamental in any cause or matter and failure to serve a party renders the entire proceedings null and void, no matter how well conducted.
It is my view, that in the face of these conflicting affidavit evidence the lower Court should have considered the facts therein before refusing to set aside the motion to relist.
?When the applicants cried foul that they were not served, that goes to jurisdiction, and the
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Court should have considered that all important fact before proceeding to refusing the application to set aside.
At Page 2 of the Ruling of the Court – Page 75 of the Record of Appeal, he had this to say –
“I am aware that the Applicants argument is that they were not served with the notice of relisting this suit. But after they became aware that the suit has been relisted they did not act timeously to bring the application”.
I wonder how the lower Court arrived at this decision.
The issue of service being the fulcrum of this Appeal, and the learned trial judge, not having considered same, that constitutes a gross error on his part, and therefore the issue of failure to seek leave to appeal by the Appellants is of no moment, and indeed misconceived.
The Preliminary Objection is consequently as lacking in merit.
Having overruled the Preliminary Objection, I now go to the consideration of the Appeal.
The law is elementary, that any matter or proceedings affected by lapse in the service of process suffers a fundamental flaw and blow OTOBAIMERE v. AKPOREHE (2004) 14 NWLR (Pt. 894) 591 @ 595.
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Lack of service is a matter of Jurisdiction and affects the competence of the Court to adjudicate OLORUNYOLEMI v. AKHAGHE (2011) 8 NWLR (Pt. 1195) 48 @ 61.
Thus failure to serve a party with processes in proceedings is a fundamental omission which will render the proceedings and judgment a nullity.
Service of process is an essential aspect of Nigerian law and therefore a Jurisdictional Issue. – AGIP (NIG.) v. AGIP PETROLI INTER. (2010) 5 NWLR PT 1187 348 @ 388.
Service of process of Court is basic to invoking the Jurisdiction of the Court. F.B.N. Plc v. T.S.A. IND. LTD (2010) 15 NWLR (Pt. 1216) 247 S.C.; OKOGI v. MKOH (2010) 9 NWLR (Pt. 1199) 311 C.A.
The Apex Court had emphasized the duty of the Courts themselves to confirm that there is proper service before embarking on the proceeding.
Decidedly, the best evidence for proof of service is either appearance of counsel, or oral evidence by bailiffs and other witnesses who were present when the processes were served.
Lack of service of process divests the Court of Jurisdiction, if not addressed promptly.
?Having restated the law as to “SERVICE”, I shall now
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consider the Appeal, and it seems to me that the Appellants proffered two (2) Issues for determination in his brief of Argument which are –
ISSUE 1
1) WHETHER THE LEARNED TRIAL COURT WAS RIGHT TO HAVE ASSUMED JURISDICTION AND CONTINUED THE HEARING OF THIS SUIT, WHICH WAS EARLIER WITHDRAWN BY THE RESPONDENTS WITHOUT PROOF OF SERVICE OF THE MOTION ON NOTICE RELISTING SAME ON THE APPELLANTS?”.
ISSUE 2
“WAS THE LEARNED TRIAL COURT RIGHT TO HAVE REFUSED TO SET ASIDE THE PROCEEDINGS WITH RESPECT TO THE SAID APPLICATION THAT RELISTED THE SUIT WHEN IT BECAME OBVIOUS THAT THE APPELLANTS WERE NOT SERVED WITH ANY COURT PROCESS IN THAT REGARD?”.
The 1st Set of Respondents had proffered a SOLE issue for determination which is –
“WHETHER THIS HONOURABLE COURT HAS THE JURISDICTION TO ENTERTAIN ANY QUESTION FOUNDED ON THE APPEAL AS FILED”.
The 4th, 5th and 6th RESPONDENTS proffered a sole issue for determination which is –
“WHETHER SUIT NO. AG/117/2005 WAS LAWFULLY RE-LISTED BY THE LOWER COURT ON 8/10/2007, IF NOT, WHETHER THE LOWER COURT WAS RIGHT TO HAVE DISMISSED THE APPELLANTS’ MOTION DATED 29/8/2008 SEEKING TO SET ASIDE
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THE LOWER COURT’S ORDER OF 8/10/2007”.
On the 18th of April 2016, the parties adopted their respective briefs of argument. A cursory look at the Issues for determination distilled by the two set of Respondents is essentially an adoption of the issues for determination distilled by the Appellants in his Brief of Argument.
I shall determine this Appeal based on the Appellants issues for determination.
The Gravamen of the Appellants appeal is that there was no satisfactory proof that the Appellants were served with the motion on notice for relisting the suit, yet the lower Court assumed that they were served and relisted same.
That there was no endorsement made by Barrister J. C. Ifebunandu who was allegedly served with process by Emensunua Otti, indicating his receipt of the Court process.
They submit that there is nothing to show the lower Court had proof of service. There was no affidavit of service. The 1st Set of respondents showed no proof of service on Barrister Ifebunandu.
?That Emmanuel Ossai in one breadth did depose to the fact that he served Barrister Ifebunandu personally, but in another breadth did
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depose to the fact that the Secretary to Barrister J. C. Ifebunandu received the, Court process “but might have failed to give the processes to Barrister Ifebunandu” – Paragraph 1 of the Counter affidavit of MR. OSSAI at Page 64 of the Record of Appeal; Paragraph 3 of the same Counter affidavit at Page 65 of the Record of Appeal.
That the totality of his grouse is that the appellants were not aware of the existence of a motion to relist the suit earlier struck out. That they only became aware of the suit after about eight months, of its renewed existence.
They submit that the issue of Jurisdiction can even be raised on appeal.
Above, in essence is the Appellants case.
I shall consider the two issues formulated by the Appellants together as they are synonymous.
What the Appellants desired at the lower Court was to have the order relisting the suit, to be set aside, because the lower Court was divested of its Jurisdiction because of lack of proper service on them.
?The essence of service of process is to put the adverse party on adequate notice, to enable him defend the case facing him. Therefore it is imperative
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that the parties appear in Court to vent their respective cases having been put on notice a fact which accords with one of the twin pillars of Natural Justice viz fair hearing.
The issue of Jurisdiction is no doubt of LAW. It can even be raised SUO MOTU by the Court. It is fundamental and a threshold issue.
It therefore became incumbent on the trial Court to let that issue be canvassed and settled, and indeed pronounced upon – OLUTOLA v. UNILORIN (2004) 18 NWLR (Pt. 905) 416 @ 446-447.
Failure to serve parties with processes of Court goes to the root of the Courts’ Jurisdiction. Jurisdiction is not subject to the Courts’ discretion, neither is it a slave to it. It stands alone and must be given its pride of place in the due administration of Justice. Therefore any proceedings conducted without jurisdiction, suffers from a viral infection which renders the entire proceedings a nullity, no matter how well conducted.
In OTOBAIMERE v. AKPOREHE (2004) 14 NWLR (Pt. 894), 591 @ 614, it was held inter alia that –
“? Thus the trial Court should grant an application to set aside such judgment founded on want of service.”
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This is so where there has been want of service, and so established.
The result is that the lower Court had no jurisdiction, in the first instance, to exercise its discretion, no matter how unfettered, to relist the suit without proof of proper service of the processes of Court.
No doubt the Appellants applied to set aside the order relisting the suit when he became aware of it. The refusal to set aside that order relisting the suit is what has put in place the instant appeal.
Appeal on ground of Jurisdiction is of right ex debitio justitiae. Jurisdiction is a question of law.
In OWNERS M/V GONGOLA HOP v. S.C. (NIG.) LTD. (2007) 15 NWLR (Pt. 1056) 189 @ 206, the Apex Court observed that the – “Issue of jurisdiction may be raised at any stage of the proceedings even at the Supreme Court and even by the Court suo moto. Also, leave may not be necessary because without judicial competent to adjudicate everything done is a nullity”.
This issue is resolved in favour of the Appellants and against the Respondents.
ISSUE NO. 2
Without much ado, the consideration of Issue No. 1 extends to the Issue No 2.
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Simply put, the learned trial Court, was wrong to refuse to set aside the proceedings with respect to the application that relisted the suit – Moreso, in view of the fact that the Appellants were not served with any Court process in that regard.
In Paragraphs 4, 5 and 6 of the affidavit in support of the motion on notice, to set aside the order relisting the suit earlier struck out by the lower Court, the Applicant deposed thus ?
PARAGRAPH 4
“That the said motion was not served on the co-defendants and I was informed by my Counsel Chief J. C. Ifebunandu and I verily believe him that he was not served with a copy of the said motion on notice”.
PARAGRAPH 5
“That the co-defendants and their solicitor did not know about the pending of the said motion praying for relistment of the suit which was discontinued by the Plaintiffs”.
PARAGRAPH 6
“That on the 8th of October 2007 while the co-defendants were unaware of the said motion same was heard in their absence and granted”.
When in the Counter affidavit deposed to by Mr. Emmanuel Ossai, filed on the 24th of October 2007, he did not indicate
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that he had the consent and authority of the 1st set of Plaintiffs to depose to the Counter affidavit, that vitiated the Counter affidavit as it offends the provision of the Evidence Act 2011.
The trial Judge did not advert its mind to the affidavits deposed to by the respective parties, in order to know whether the issue of service was properly addressed. This was a gross error, which occasioned the Appellants miscarriage of Justice.
Issue No 2 is resolved in favour of the Appellants and against the Respondents.
The totality is that the Appeal succeeds and I so hold.
The Ruling of Hon. Justice C. O. Nweke of the 26th February 2009 in Suit No. AG/117/05 delivered at the High Court of Anambra State holden at Ekwulobia is hereby set aside.
Parties to bear their own costs.
Other Citations: (2016)LCN/8714(CA)
