Barr. Vincent Ezenwajiaku V. Mr. Chukwuma Umeoji & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED L. TSAMIYA, J.C.A.
This is an appeal against the judgment of the Legislative Houses/Governorship Ejection Tribunal No.1 (herein referred to as the Tribunal 1). Sitting at Awka, in Anambra State, which struck out the petition on 28/9/2007 for the lack of diligent prosecution as there was non service of the petition on the respondents.
Being dis-satisfied with the said judgment, the petitioner, as appellant initialed this appeal by virtue of the Notice and Grounds of Appeal dated 11/10/2007 and filed on 19/10/2007. The Notice and Grounds of appeal contained two grounds of appeal on error in law.
The appellant has equally presented the appellant’s Brief of Argument in substantiation of the two grounds of appeal. In his Brief of argument, there were two issues distilled from the two grounds of appeal as follows:
(a) Whether the non-service of the petition filed on 21/5/07 as at 28/9/07, if indeed there was non service, was legally sufficient to render the petition liable to be struck out.
(b) Whether the tribunal has the jurisdictional competence to strike out the petition at the time it did when it has made a finding of non service of the petition on the respondents.
The 1st respondent has also filed the respondents’ brief of arguments in response to the appellant’s brief in which the 1st respondent raised only one issue for determination in this appeal as follows:
“Whether the Tribunal on a dispassionate consideration of circumstances of the petition was right when it struck out the appellant’s petition.
On receipt of the 1st respondent’s brief, the appellant filed the appellant’s Reply to 1st respondent’s brief of argument.”
On the 2nd – 4th respondents’ part, they filed their Brief of argument after receipt of the appellant’s Brief. It should be noted that they also filed a notice of preliminary objection which was incorporated into their Brief of argument.
In reaction to the said notice of preliminary objection, the appellant also filed a Reply Brief within time.
The facts of the case in brief are that, by an undated Election petition filed on 9/5/2007 the appellant, prayed that it be determined as follows:
1) An order canceling or annulling the result and the return, of Aguata Federal Constituency election wherein the 1st respondent was returned as elected in the election in the Federal House of Representative held on 21st April 2007.
2) An order directing the 4th respondent to conduct fresh and/or a bye-election into the Federal House of Representatives for Aguata Federal Constituency.
The sole ground for the petition is that:
“The said election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006.
The petition, as filed by the appellant did not provide the address for service on the respondents but only gave the petitioner’s address for service.
The tribunal in line with the provision of the Electoral Act 2006 on 15/8/2007, consolidated all the petitions from the said Aguata Federal Constituency and adjourned for a pre-trial.
On 28/9/2007 when the petition came up for pre-trial, the tribunal, after raising objection on non service by the respondents in the petition in question, discovered that the appellant had not served the respondents with the petition for more than 17 weeks after the filing of the petition. But the appellant claimed that he had served the petition on the respondents.
However, when the tribunal searched its records it also discovered that there was no proof of service. The tribunal further invited the Bailiff of the tribunal who confirmed that he could not serve because only one copy of the petition was given to him. There and then, the appellant recanted and then applied for an adjournment to put his house in order, which was refused. Consequently the tribunal thereafter, struck out the petition for lack of diligent prosecution. Dis-satisfiled with the striking out order of the petition, the appellant lodged this appeal on 11/10/2007 on two grounds.
At the hearing of the appeal the appellant’s counsel adopted their Appellant’s Brief of argument and urges this to allow the appeal, and discountenance with the notice of preliminary objection.
The 1st respondent’s counsel on their part adopts and relied on their Brief of argument and urged the court to dismiss the appeal for lack of merits.
The 2nd – 4th respondents’ counsel also adopted their Brief of argument as well as their notice of preliminary objection and urged the court to dismiss the appeal.
Before addressing the issues raised, I will first consider the preliminary objection of the 2nd – 4th respondents contained in their brief.
The objection raised in the 2nd – 4th respondents’ Brief of argument, and adopted at the hearing of the appeal, states:-
“That the 2nd – 4th respondents shall at the hearing of this appeal contend and rely upon the preliminary objection, that the Notice of Appeal dated 11th day of October, 2007 filed on 19th October 2007 is grossly incompetent, the requisite filing fees having not been paid and this Honourable Court lacks jurisdiction to entertain this appeal.”
Learned counsel for the 2nd – 4th respondents submitted that the appellant shall pay the total sum of N1,100.00 in the following breakdown:
- Notice of Appeal = = N500.00
- Service/Mileagu & Transport = N200.00
- Filing = N100.00
- Hearing = N300.00
Total = N1,00.00
The counsel further submitted that, instead of the above required fees, the appellant only paid the sum of N700.00 on 19/10/2007, and this made the appeal incompetent, and not valid. If no valid appeal, they argued the court becomes devoid of any jurisdiction. Legal authorities were cited to support their contention.
In response, the appellant argued that the fees tabulated in the 2nd – 4th respondents’ Brief are not the appropriate fees payable for filing appeals in the court of Appeal in election petitions. Rather the fees payable and cognizable are “as determined by the secretary of various Election Tribunals,” and that the officer had so assessed and determined the fees payable in the instant appeal and same was endorsed at page 338 of the records. They referred us to paragraph 2(a) of the practice Direction NO.2 of 2007. They urge this Court to discountenance the authorities cited by the 2nd – 4th respondents as they are not applicable.
A court charges fees payable by a litigant prosecuting a proceedings or requiring services rendered by it in connection with the litigation. The fees charged for the various services are set out in the Schedule to the different Rules of Courts. These fees are, however, waived in some cases, or under certain circumstances. However, before the process of a court is issued, the Registrar must be satisfied that the relevant fees have been paid.
No document in respect of which fees have been paid, or are payable, which have not been paid shall be used in any legal proceedings unless the court is otherwise satisfied that the proper fees have been paid. Non compliance with the payment of fees will render the proceedings thereto avoidable. In Onwugbufor Vs. Okoye (1966) 1 S.C.N.J., the plaintiffs, with the leave of the trial court, amended their statement of claim, incorporating therein, a new relief of forfeiture of tenancy against the tenants. But the plaintiffs failed to pay the courts fees stipulated for this relief, even though they included it in the amended statement of claim.
In the Supreme Court, the defendants contended that the relief of forfeiture was incompetent as the requisite court fees were not paid. This contention was up held by the Supreme Court which affirmed that the claim for forfeiture was incompetent and improperly before the court and ought to be struckout for nonpayment of the appropriate court fees, said the Court:
“It is the responsibility of the plaintiff, inter – alia, to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court judicial function to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry, Non-Ministerial Government Department or Local Government.”
The Supreme court added that if the default in payment is that of the plaintiff the claim in respect of which such prescribed fees have not been paid, cannot be said to be properly before the court and should be struck out in the absence of an appreciate remedial action or application to regularize such anomaly.
In Seven-up Bottling Co. Ltd vs. Yahaya (2000 4 NWLR (PT.702) 47. No endorsement as to payment of filing fees. The question that arose was whether the Notice of Appeal was competent having regard to the facts and in the circumstance of the case. The appeal was struck out.
In the instance case, the main complaint of the 2nd – 4th respondents to
my understanding is not on non-payment of requisite fees at all but on nonpayment of adequate filing fees for the Notice of appeal, (underline mine).
They argued that the filing fees should be the fees they tabulated in their Brief of argument, which I have reproduced earlier in this judgment, while the appellant is arguing that the fees he paid is adequate fees to be paid for the appeal from Election Tribunal, because it was the amount assessed in the Tribunal Registry.
In order to determine who is correct, reference must be made to paragraph 2(a) of the Practice Direction No.2 of 2007 made pursuant to section 149 of the Electoral Act 2006 and the constitution of the Federal Republic of Nigeria 1999. Practice Direction NO.2 becomes applicable in this matter, being it an appeal from the Election Tribunal Paragraph 2 (2) of the Practice Direction NO.2 says:
“At the filing of the notice of appeal, Appellant shall pay to the Secretary, such fees as May be determined by the Secretary, having regard to the bulk of the records of proceeding which shall be compiled by the secretary.”
From the above, it could be said confidently that the fees payable and cognizable are as determined by the secretary of any Election Tribunal.
From the records, I have seen an endorsement on the Notice of Appeal on the amount of the fees paid and the number of the receipt issued. In the absence of any evidence to the contrary, it could be assumed that the fees endorsed was the fees payable from the assessment made by the secretary of the tribunal.
It should be noted that since paragraph 2(a) of the practice Direction No.2 of 2007 has vested the power to determine fees payable on the Secretary of the tribunal, it is wrong, in my view, to resort to the Rules of the Federal High Court, to determine the appropriate fees payable in respect of appeal from the Election Tribunals. Also, throughout my search in the Federal High Court Rules 2000, I see nowhere the fees tabulated in the 2nd – 4th respondents Brief, and claimed to be payable, ascertainable in Appendix 2 referred to in Order 53 of the Federal High Court Rules, 2000. Since the secretary who is the determining officer of the fees had so assessed and determined the fees payable in the instant appeal, and same endorsed at page 338 of the records, the requisite filing fees have been paid.
Having said the above, I am satisfied that the filing fees assessed and paid, as shown on page 338 of the records is the requisite filing fees. The objection therefore is overruled and the appeal is competent having paid the requisite filing fees.
This takes me to the issues raised in this appeal. I have carefully read through the respective issues of both the appellant and the respective respondents. The appellant’s and the respective respondents’ issues are in substance the same. Taking into consideration the circumstances of this appeal including the grounds of appeal, the issues as formulated by the appellant are opt and direct and I shall therefore determine this appeal on the issues formulated by the appellant.
ISSUE NO.1
The question under this issue is, whether the non-service of a petition for 17 weeks, if indeed there was non service, legally sufficient to render the said petition liable to be struck out. In his Brief of argument, it was submitted on behalf of the appellant that the petition in question is an originating process of the Court below and nowhere in the Electoral Act 2006 is the life span of a petition stated. That in the absence of such provision, recourse must be had to section 50 of the Electoral Act (supra) which enjoins that the practice and procedure of the Federal High Court as nearly as possible shall apply to the election tribunal. The practice and procedure of the Federal High Court applicable in this circumstance, is Order 6 rule 4(1) of Federal High Court (Civil Procedure) Rules 200. That the provision of the Rules, Provides for the life-span of a writ to be for 12 months for purposes of service. That having regard to that, the instant petition has a duration of 12 months before it lapses, the expiration of 4 month in its life span before service on the respondents is not, according to him, such a period to condemn the petition and struck it out. The case of Idowu vs. Bamijoko (1996) 7 NWLR (Pt.461) 496, was referred to us.
It was further submitted that, from the records, particularly in the proceedings of 15/8/2007 at the tribunal, the 2nd – 4th respondents through their counsel, Mr. Alex Ejesieme, leading N. Okpalanzie Esq for INEC, were recorded to have entered appearance. Pages 62 – 63 of the records
were referred to us. That since the said counsel did not object on non service on that day of 15/8/2007, he cannot subsequently reprobate on 28/9/2007 to say that they were not served.
Further more, it was submitted that, if indeed the 1st respondent was not served with the petition, then how did his counsel get the petition he had replied to as shown on pages 64-335 of the records? That the 1st respondent could not be heard to complain about service of the petition after he had already joined issue with the petitioner via the reply. In law, he is deemed to have waved non-service of the petition, more so when the petition was consolidated with other petitions from the same Federal Constituency.
The 1st respondent in his brief, replied that the Tribunal was right to have struck out the petition. That, appearance before the Tribunal is regulated by the provisions of paragraph 9 of the 1st Schedule to the Electoral Act 2006, therefore, it cannot be argued that the respondents by mere “appearing” without more before the Tribunal on the days the petition came up, had thereby entered appearance to the petition, and thus cannot complain or non-service of the petition. That consolidation of petition with other petitions cannot in any sense amounts to an admission that pleadings have been exchanged. That the alleged Reply filed by the 1st respondent, was allegedly filed on 31/8/2007 after the consolidation of the petitions on the 15/8/2007, therefore pleadings could not in any way have been exchanged as at 15/8/2007. It was finally submitted that the Tribunal was right when it struckout the petition on ground of non-service for which the appellant, according to the Tribunal, has not diligently prosecuted same.
On behalf of the 2nd – 4th respondents, it was argued that, since the appellant waited and/or failed to ensure that the service of originating process, like election petition was effected on the respondents, the appellant could be said to be substantially unprepared to prosecute his petition, and as such the Tribunal was right when it struck out such petition for lack of diligent prosecution. It was also submitted that striking out of the appellant’s petition by the Tribunal was an act done in the exercise of its discretion judicially and judiciously which this appellate court may not interfere unless exercised frivolously.
Finally, the appellant asked this court to resolve this issue no. 1 against the appellant. Having stated the submissions of both parties, I shall examine issue NO.1. In my view, it could be divided into two questions as follows:
(1) Were the respondents served with the petition in question?
(2) And if not what is the legal consequence on the process issued.
Before answering these question, I wish to state that as a matter of practice and procedure, where the originating process, such as a petition, was issued it must be served on the defendant. Without such service, he may not know that plaintiff/petitioner has sued him in Court and what for.
He should therefore be served so that the suit will be brought to his notice.
The object of the service is, therefore, to give notice to the defendant, so that he may be aware of, and be able to resist, if he may, that which is sought against him. See United Nigeria Press Ltd & Anor. Vs. Adebanjo (1969) 1 All NLR 431 at 432. Where service of a process is required, failure to serve it is a fundamental vice and the party affected by the Order but was not served with the process is entitled Ex debito justitiae to have the order set aside as a nullity. See Obiomonure VS. Erinosho & Auor. (966) 1 All NLR 250 and Skencousult Vs. Ukey (1980) 1 S.C. 6 at 26. Service is also a condition precedent to the exercise of jurisdiction by the court of whose registry the process was issued. See National Bank vs. Guthrie (1993)4 SCNJ at 17.
Now going back to the first question above, I quickly answer this first question in negative. Evidence are bound that though the respondents’ respective counsel appeared on 15/8/2007, it cannot be implied that their “appearance” are deemed to have been served, more particularly when there was no evidence to show that they appeared in respect of the petition in question, as there was consolidation of other petitions emanated from the same constituency. Service of an originating process, of which a petition is one, is so essential to the judicial process that it cannot be presumed, but there must be evidence of the service of such process before the court establishing that the party had been served. There was no such proof of service and moreover the Bailiff confirmed non-service on the respondents.
I am of the view that respondents were not served.
Having decided that the respondents were not served, I shall proceed to the next question, i.e. legal consequence on the petition.
It is important to note that service of the originating Processes such as petitions, is an essential part of the litigation process and failure to do so is fatal to the jurisdiction of the court to proceed with the suit. See Marikida Vs. Ogunmola (2006) 26 NSCQR (Pt.2) 1313 at 1325, where the Supreme Court per MUSDAPHER, J.S.C. held:
“Failure to serve process where service of process is required is fundamental vice. It deprives the trial court of the necessary competence and jurisdiction to hear the trial.”
This is the position in ordinary civil suit, and applies with equal, if not with greater force, in an election petition.
It is trite law that where service of the originating process, such as petition, has not been effected, as in the present case, it calls into question the jurisdiction of the court to proceed with the hearing and determination of the case on its merit. See NACB LTD. Vs O.F. DEV. CO. (Nig) LTD (2006) 9 NWLR (Pt.985) 323 at 334.
It must also be borne in mind that the proceedings of the Tribunal of Court is governed by the Practice Direction 2007 which enjoins the Tribunal or Court as well as the parties to expedite the proceedings of the Tribunal/Court See Osunbor Vs. Oshiomhole (2007) 18 NWLR (Pt.1065) 32. Where this court, Benin Division, at page 40 of the report held”
“Time, no doubt, is of the utmost essence by virtue of the generic nature of election petitions which subsume appeals there from.
It is as a result of special nature that time within which to deal with any election matter has been considerably a bridged by making statutory or procedural provisions to that effect.”
In order to obviate delays in the consideration of election matters that the practice Direction No.1 of 2007 was issued. It is this practice Direction that governed the proceedings of the Tribunal, and also this practice Direction enjoins the Tribunal and the parties to the petition to expedite the proceedings of the Tribunal.
It is not in dispute that the appellant filed his petition and also did not effect service of same for 17 weeks (or 4 months) thereafter. It is unthinkable that a serious minded petitioner who filed an election petition 17 weeks ago would sit back, relax and do nothing to ensuring the service of this important originating process on the respondents. Such a petitioner, obviously could not have been said to have expediting the proceedings of the Tribunal and in such circumstances, the Tribunal is clearly left with no other alternative than to exercise its discretion and struck out the suit after it has refused the oral request of the appellant for adjournment. Even if the appellant was given the opportunity to proceed with the case, after refusing to adjourn, he would be unable to do so in the absence of service on the respondents. The grant of adjournment in the circumstances of this case means delay to the hearing of the petition. A judge must bear in mind the necessity for ensuring speedy justice to the contesting litigants. Sec Solanke VS. Ajibola (1968) 1 All NLR 46 at 54.
It is a matter within discretion of the Court either to grant or refuse an adjournment. See A.C.B. Ltd. Vs. Agbanyin (1960) 5 F.S.C. 19. But that discretion must at all time be exercised judicially and judiciously on the material placed before the court. In this circumstance, there was no any material before the Tribunal to grant the adjournment and accordingly, the discretion was exercised judicially and judiciously.
For the reasons so advanced above, the Tribunal was perfectly right and acting within the law, when it struck out the petition for lack of diligent prosecution. This issue is therefore resolved against the appellant.
Having reached the above decision, I now proceed to issue 2.
ISSUE NO.2
The complaint of the appellant under this issue is that the tribunal had no jurisdiction to strike out the petition after it had discovered that the petition was not served on the respondents. He submitted that the absence of such service of the petition on the respondents denies the Tribunal of the vires or power to assume jurisdiction and determine the petition by striking it out. By doing so, he further submitted, the Tribunal acted without jurisdiction in terminating the petition.
In response, both the 1st, and 2nd – 4th respondents, in their respective Briefs argued that the Tribunal was perfectly acting within the law, when it struck out the petition, after discovering that there was non-service of the instant petition on the respondents.
This issue is without any hesitation is answered in negative for the reasons ably set above in this judgment. Further more, I wish to repeat that where service of the originating process has not been effected, it calls into question the jurisdiction of the Court to proceed with the hearing and determination of the case on its merit. Therefore it is the duly of the court to settle that issue one way or another first before proceeding to hear the case on its merit. See A.G. Lagos State vs. Dosunmu (1989) 3 NWLR (Pt.111) 55. And Even where the Court lacks jurisdiction to hear and determine a matter presented before it, the jurisdiction of the court to determine or resolve a challenge on its jurisdiction is preserved and any decision on whether it had jurisdiction or not cannot be said to be one made without jurisdiction as the appellant may want this court to hold. See Barclays Bank of Nigeria v. Central Bank of Nigeria (1976) 1 All NCR 409 at 421.
Jurisdiction to be noted is said to supply the blood that gives life to the authority of the Court to entertain the matter formally presented before it. And where a court has no jurisdiction to hear and determine a case, but goes a heard to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See Madukolu Vs. Nkemdilim (1962) 2 S.C.N.L.R. 341. Once a Court lacks jurisdiction, the matter ends there as the absence of jurisdiction is irreparable in law, the only procedural duty of the Court, under such circumstances, is to strike the matter out. See Umanah Vs. Attah (2006) 17 NWLR (Pt.1009) 503 at 534 pars. B-F and 525 paras D-F.
For what I have said above, all the two issues arc resolved in favour of the respondents, and the appeal lacks merit and is hereby dismissed. The decision of the Tribunal dated 28/9/2007 in suit NO.EPT/AN/NAE/HR/22/2007 is affirmed.
N30,000.00 cost in favour of the 1st respondent awarded.
Other Citations: (2009)LCN/3508(CA)
