Hon. Bayo Adegbola V. Hon. Godwin Osiyi & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Abuja Division, delivered on the 4th November, 2016 affirming the ruling of the Federal High Court sitting at Lokoja, dated 15th November 2015. The brief facts of the case that brought about the appeal are as herein under supplied.
The 2nd respondent’s primary election for the nomination of its Ogori/Magongo Kogi State Constituency candidate in the 11th April, 2015 House of Assembly General Elections, eventually held on 11th December 2014. With the victory of the 1st respondent at the primary election, the 2nd respondent forwarded his name to the 3rd respondent, the Independent National Electoral commission, as the party’s candidate in respect of the Ogori/Magongo State Constituency in the forthcoming House of Assembly General Election. Aggrieved by this turn of events, the appellant, by way of an originating summons at the Lokoja Division of the Federal High Court, challenged the nomination of the 1st respondent as the 2nd respondent’s candidate at House of Assembly election in respect of the Ogori/Magongo State
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Constituency.
In addition to contesting appellant’s claim, the 1st respondent by way of preliminary objection challenged the competence of the suit. In its ruling of 19th November 2015, the trial Court sustained the objection and struck out the suit for want of jurisdiction. Dissatisfied, the appellant appealed against the ruling at the Court of Appeal, Abuja Division, hereinafter referred to as the Court below. In a considered judgment delivered on 4th November 2016, the Court sustained the trial Court’s decision and dismissed appellant’s appeal. The appellant has now appealed against the judgment of the Court of Appeal upon his notice filed on 17th November, 2016.
Having issued a notice of preliminary objection against the competence of the appeal, the 1st respondent proceeded to argue the objection in his brief of argument settled by Emeje Aruwa Esq of counsel. Appellant’s reply brief, which was like his main brief, settled by Ameh Anthony Prince Esq, contain his response to the 1st respondent’s arguments in respect of the preliminary objection to the competence of the appeal.
Jurisdiction, this Court has held in a plethora of cases, is the
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very basis on which any Court or Tribunal, including the Apex Court, tries a case. It is the lifeline of all trials as a trial without jurisdiction is a nullity. In order to save time and costs and to avoid a trial of a nullity, 1st respondent’s preliminary objection will be determined first. See NDIC v. CBN and Anor (2002) 3 SC, Petrojessica Enterprises Ltd V. Leventis Technical Company Ltd (1992) LPELR-2915 (SC).
In the preliminary objection, the 1st respondent’s seeks the following:-
“1. An order striking out this appeal, the Appellant having failed to serve the Notice of Appeal on the 1st respondent as required by the Rules of this Court.
- An order striking out this Appeal for want of jurisdiction as the Appellant’s Notice of Appeal filed is defective and incompetent having failed to state the address of the parties interested in the appeal as mandatorily required by the Supreme Court Rules.
- An order striking out Grounds 1, 2, 5 and 6 of the Notice of Appeal.”
The Court of Appeal’s judgment being appealed against, learned counsel submits, was delivered on the 4th of November 2016. Since that date, on Notice of Appeal, it is
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further submitted, is served on the 1st respondent to notify him on any pending appeal in the matter. The 1st respondent, it is contended, is only served, so far, with the already compiled record of appeal and the appellant’s brief of argument. Appellant’s failure to serve his notice of appeal to this Court on the 1st respondent, it is submitted, is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. Order 2 Rule 3 and 4 of the Supreme Court Rules, learned counsel argues, makes it mandatory for the notice of appeal to be served on all the respondents. A breach of the rules, it is argued, is not a mere irregularity but a fundamental breach as the notice is at the foundation of the appeal. Relying inter-alia on Rossek v. ACB Ltd (1993) 8 NWLR (Pt.312) 382 at 437, Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.III) 552 at 556, Popoola v. Babatunde (2012) 7 NWLR (Pt.1299) 302 at 331 and M. C. Investment Ltd v. C. I. And C. M. Ltd (2012) 12 NWLR (Pt.1313) 1 at 20.
Further relying on Order 8 Rule 2(7) of the Supreme Court Rules, and Uwazurike v. AG Federation (2007) 1 NWLR
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(Pt.1035) 1 at 17, and Odunze V. Nwosu (2007) 13 NWLR (Pt.1050) 1, learned counsel submits that the notice of appeal does not also reflect the names and addresses of all parties directly affected by the appeal thereby standing in further breach of Order 8 Rule2(1) and(6). Being the substratum of the appeal, it is submitted, these defects have cumulatively rendered the appeal incompetent and should be so held.
In further argument, it is submitted that no issues have been formulated from appellant’s 1st, 2nd and 6th grounds and same, on the authority of Mbeledoju V. Aneto (1996) 2 NWLR (Part 429) 15 at 165, Onifade V. Olayiwola & Ors (1990) 7 NWLR (Pt.161) 130 and Ndiwe V. Okocha (1992) 7 NWLR (Pt.252) 129 should be deemed abandoned. Ground 5, on the other hand, it is contended, does not arise from the judgment appealed against. Since the ground purports to raise and attack an issue that is not decided by the judgment on appeal it is incompetent. Relying inter-alia onHon, Minister of Works and Housing v. Tomas (Nig) Ltd & Ors (2002) FWLR (Pt.124) 465 and Mercantile Bank of Nigeria Plc and Anor V. Nwobodo (2005) 7 SC (Pt.III) 1 at 4 6,
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learned counsel submits that the issue be struck out.
On the whole, the incompetent appeal, it is urged, be equally struck out.
Appellant’s response to the preliminary objection is as contained in his reply brief to the 1st respondent’s brief. Therein, it is argued that the preliminary objection is misplaced, unfounded and smirks of technicality. The bailiff of the Court below who effected service on all the respondents, it is submitted, swore to an affidavit of service of the notice of appeal copies of which are in the file of the instant appeal. The 1st respondent gave the name and address of his counsel and if the counsel has ceased to be retained he has the duty to notify the Court. The 1st respondent was served through his counsel on record and this, by the decision in FBN Plc v. TSA Industries Ltd (2007) 1 FWLR (Pt 358) 1449 is good and effective service.
In further response, learned counsel submits that the 2nd arm of 1st respondent’s objection on appellants failure to state the names and address of the persons directly affected by the appeal has been held to be a mere irregularity which does not void the notice of appeal or
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render it incompetent. Learned counsel refers to Amata V. Omogume (1997) 2 NWLR (Pt.485) 93, Ajayi v. Military Adm, Ondo State (1997) 5 NWLR (Pt.504) 237 and Odi v. Osafile (1987) 2 NWLR (Pt.57) 510.
Concluding, it is submitted that it is not the law that an appellant must distill an issue from each of his grounds of appeal. It suffices if he distills an issue from a combination of his grounds of appeal. Appellant’s issues, it is further contended, are formulated from all the grounds of appeal which directly attack the judgment appealed against. Citing the decisions in Imonikhe V. AG, Bendel State (1992) 6 NWLR (Pt.248) 396, Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76 at 93 and Ndukewe V. State (2009) 2 SCNJ 223. Learned counsel submits that the 3rd arm of 1st respondent’s objection be discountenanced.
On the whole, it contended, the objection which lacks merit should be dismissed.
1st respondent’s preliminary objection draws its strength from its first arm, the fact of the non service of the notice of appeal on the 1st respondent. I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that
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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. This Court has repeatedly held that service of an initiating process, which the notice of appeal is, is a sine qua non for a Court to assume jurisdiction over a case. In S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt.829) 529 this Court restated its concerns thus:-
“Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set-aside as a nullity.
In the case at hand, learned counsel to the 1st respondent would, therefore, be right to insist that this Court lacks the jurisdiction to hear and determine this appeal if indeed the notice of appeal is established
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not to have been served on the 1st respondent: Obimonure v. Erinosho (1966) 1 ALL NLR 250 at 252, Tukur V. Government of Gongola State (1988) 1 NWLR (Pt.68) 339 and Josiah Cornelius Ltd & Ors v. Chief Cornelius Okeke Ezenwa (1996) 4 NWLR (Pt.443) 391.
Learned appellant’s counsel asserts that the notice of the instant appeal has been served on the respondents and that an affidavit of service abides in the Court’s files. Does it
Sections 108, 109, 113 and 117(4) of the Evidence Act 2011, provide for the type of affidavit which, given the extant circumstances, shall avail the appellant. The Sections read:-
“Section 108 Before an affidavit is used in the Court for any purpose, the original shall be filed in the Court, and the original or an office copy shall alone be recognized in the Court.
Section 109 Any affidavit sworn before any judge, officer or other person duly authorized to take affidavits in Nigeria may be used in the Court in all cases where affidavits are admissible.
Section 113 The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that
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it has been sworn before a person authorized.
Section 117(4) An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.
(Underlining supplied for emphasis).
A community reading of the foregoing reveals that only the filed original of the affidavit the appellant seeks to rely on in establishing the fact of service of his notice of appeal on the 1st respondent or an office copy of the original shall suffice. Most importantly, the affidavit must be sworn to and signed or marked by the deponent before the authorized person or officer. By these requirements of the law, an unsworn and unsigned affidavit is worthless. In the absence of the swearing by the deponent, therefore, the declaration will not be as worthy as the paper on which it is made. The person before whom the oath is subscribed must so endorse on the affidavit by indicating, in addition to the official stamp, his name. See Maraya Plastic Industries Ltd v. Inland Bank of Nigeria Plc (2002) FWLR (Pt.120) 1732 at 1737, Oparugo V. Oparugo (2008) 5 NWLR (Pt.1087)
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574, Amigo v. Nwoke (2010) 1 NWLR (Pt.1176) 600 and Onujabe v. Idris (2012) (Pt.1284) 285.
A declaration by one Emeka John, a bailiff, asserting the fact of service on the 1st respondent abides in the Court’s records. It is made on the 23rd November 2017 and purports to have been sworn to before a commissioner for oath who is the authorized officer. The declaration however neither bears the authorized officers name and signature nor the official stamp of the office of the commissioner of oath before whom the oath is said to have been subscribed to. In the circumstance the declaration cannot be said to have been sworn to as required by law. Being an unsworn declaration it is not, in the eyes of the law, the affidavit of service learned appellants counsel asserts it is. The fundamentally defective affidavit cannot evidence the fact of service of the notice of appeal on the 1st respondent. Effective service of the notice of appeal, I agree with learned counsel to the 1st respondent, 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
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assuming jurisdiction to hear and determine the appeal. Proceeding inspite of the non-service of the notice of appeal will constitute a denial of the 1st respondents right to fair hearing as guaranteed under Section 36 of the 1999 Constitution. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 at 595 and Estate of Late Chief I. S. Idisi V. Ecodril Nigeria Limited & Ors (2016) LPELR-40439 (SC).
For the foregoing, 1st respondent/s preliminary objection is well taken. It succeeds and is hereby sustained. Resultantly, the incompetent appeal is hereby struck out.
Parties shall bear their respective costs.
SC.1005/2016
