Oluwarotimi Odunayo Akeredolu V. Dr Olusegun Michael Abraham & Ors(2018)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Abuja Division, delivered on 17th July, 2017 wherein the lower Court dismissed the appeal of the Appellant against the ruling of the Federal High Court Abuja, delivered on 16th December, 2016. The Federal High Court had in its ruling dismissed the appellant’s objection challenging the service of the originating summons and other processes in this case.

The salient facts giving birth to this appeal as garnered from the record of appeal are that the Appellant herein had emerged the winner of the primary election of the 2nd Respondent, conducted on the 3rd day of September, 2016 in Ondo State to elect the candidate of the 2nd Respondent for the election to the office of Governor of Ondo State slated for the 26th of November, 2016.

Dissatisfied with the outcome of the primary election, the 1st Respondent by way of an Originating Summons and its accompanying processes filed on the 7th of October 2016, challenged the validity of the said Ondo State Governorship Primary Election of the 2nd Respondent, and sought

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the following reliefs:

1. A DECLARATION that the purported Delegates’ List dated 1/9/2016 with which the 1st Defendant’s purported governorship primary election was conducted on 3/9/2016 is illegal, unlawful and violates the 1st Defendant’s Constitution 2014 as amended same being fundamentally at variance with the lawful congress and congress Appeal Committee’s Delegates’ List of 2014.
2. A DECLARATION that the purported Ondo State governorship primary election held on the 3/9/2016 which also purportedly produced the 2nd Defendant as the purported Governorship candidate of the 1st Defendant in the Ondo State Governorship Election slated for 26/11/2016 and the acceptance of same by the 4th Defendant constitute a gross violation of Section 87 (1), (4)(b) and (7) of the Electoral Act 2010 as Amended and is therefore unlawful, null and void and of no effect.
3. A DECLARATION that the action of the 3rd Defendant in unilaterally submitting the name of the 2nd Defendant without the approval of the National Working Committee, National Executive Committee and Board of Trustees of the 1st Defendant and despite the report of the Election Appeal Committee

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recommending the outright cancellation of the governorship primaries is ultra vires the 3rd Defendant.

4. A DECLARATION that the purported governorship primary election in Ondo State held on the 3/9/2016 is in clear violation of sundry provisions of the APC Electoral Guidelines for Governorship primary Election 2014 and provisions of the Constitution of All Progressives Congress, 2014 as Amended and therefore invalid, null, void of no effect and incapable of producing the 2nd defendant as the governorship candidate.
5. AN ORDER setting aside the Ondo State Governorship Primary Election of the 1st Defendant held on the 3rd of September, 2016 for non-compliance with provisions of the APC Elections Guidelines 2014 as Amended for Primary Elections, and Electoral Act 2010 as Amended, APC Constitution 2014 as Amended;
6. AN ORDER setting aside the purported submission by the 3rd defendant and acceptance of the 2nd defendant’s name by the 4th Defendant as the governorship candidate of the All Progressives congress of Ondo State;
7. AN ORDER compelling the 4th Defendant to extend time within which the 1st Defendant shall conduct fresh Governorship

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Primary Election of the 1st Defendant based on the congress and Congress Appeal Committee’s Delegates’ List, 2014 and in compliance with the provisions of the Electoral Act 2010 as Amended, the Constitution of All Progressive Congress 2014 as Amended, APC Electoral Guidelines, 2014 and the Constitution of the Federal republic of Nigeria, 1999 as Amended;

8. AND FOR SUCH ORDERS OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.

The 1st Respondent on the 7th of October, 2016, also filed a Motion on Notice for interlocutory injunction, a Motion Exparte for interim injunction seeking to restrain the 4th Respondent from recognizing the Appellant as the Governorship Candidate of the 2nd Respondent in the Ondo State Governorship slated for 26th November, 2016, pending the determination of the suit, as well as a Motion on Notice seeking to abridge the time within which the Defendants in the suit may enter appearance and file their respective processes from the thirty (30) days allowed under the Rules of the Trial Court to a shorter period. See pages 3 – 22 and 49 – 90 of the Record).

In constraint of time, the 1st

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Respondent on the 11th of October, 2016, filed a Motion Exparte seeking the leave of the Trial Court to serve the Originating processes and other processes filed in the suit on the 2nd and 3rd Defendants (the Appellant and 3rd Respondent in this appeal) by substituted means through the National Secretariat of the 2nd Respondent, i.e. the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT. The accompanying 18 paragraphs affidavit was deposed to by one Joseph Omoba Esq., a legal practitioner in the Law Firm of Prof. Yemi Akinseye-George SAN, who at the time were the solicitors to the 1st Respondent. At paragraphs 10 – 17, the deponent stated thus:

10. By virtue of the 4th defendant/Respondent’s Election Guidelines, 2016 for the conduct of the Ondo State Governorship Election, 2016, the Governorship election has been fixed for 26th November, 2016.
11. That the order of this honourable Court is needed in order to serve the 2nd and 3rd Defendants by substituted means that is through the National Secretariat of the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT for the matter to be heard expeditiously.

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That the 2nd and 3rd defendants are the Governorship candidate of the 1st Defendant for the Ondo State November election and the chairman of the 1st Defendant respectively.

13. That based on the above position occupied by the 2nd and 3rd Defendants, personal service of the Court processes in this case on them will be very difficult owing to the presence of heavy security around them at every occasion.
14. That further to the above personal service of the Court processes on the 2nd and 3rd Defendants in this suit will be impossible due to the fact that they are always moving from one location to the other campaigning for the forth coming Governorship election in Ondo State.
15. That if the matter is not heard expeditiously the essence of this suit will be defeated.
16. That by serving the originating processes and all other accompanying processes through the 1st Defendant National Secretariat, it will get to the knowledge of the 2nd and 3rd Defendants.
17. That the 2nd and 3rd Defendants will not be prejudiced by the grant of this application as it will be in the interest of justice to serve the Court processes on them through the All

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Progressives Congress, National Secretariat, 40 Blantyre Street Wuse II, Abuja, FCT, Abuja.

By an Order of the Trial Court made on the 17th of October 2016, the Exparte application seeking the leave of the Trial Court to serve the Originating processes and other processes filed in the suit on the 2nd and 3rd Defendants (the Appellant and 3rd Respondent in this appeal) by substituted means through the National Secretariat of the 2nd Respondent, i.e. the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT, was granted. [See pages 233 and 234 of the Record).

Consequent upon the above order for substituted service made by the Trial Court, and the service of the processes on the Appellant and the 3rd Respondent via substituted means, the Appellant entered a conditional appearance and on the 1st of November 2016, he filed a Motion on Notice seeking for an Order:

1. Setting aside the purported service of the applicant (sic) the originating summons the motion on notice for interlocutory injunction, motion on notice for abridgment of time filed in this suit by the plaintiff/respondent, and all other motions and orders that may be

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served on the applicant.

2. Setting aside the Order for substituted service made by the Court on the 17th October, 2016.
3. Such other orders.

The grounds upon which the application was brought, are as follows:

(i) The purported service an 18th October, 2016 of the Originating Summons, the motion on notice for the interlocutory injunction and motion on notice for abridgment of time filed in this suit by the plaintiff/respondent on the 2nd defendant/applicant at No. 40 Blantyre Street, Wuse 11, Abuja is invalid, ineffectual and null and void.

(ii) The 2nd defendant is ordinarily resident in Owo, Ondo State, outside the jurisdiction of this Court.

(iii) The Court has no jurisdiction to order substituted service within its area of jurisdiction in the Federal Capital Territory, Abuja on the 2nd defendant who is resident in Owo, Ondo State and could not have been personally served with the originating process in this suit at the time it was filed in this Court on 7th October, 2016 because he was not within jurisdiction.

(iv) Service is a threshold issue and in the absence of a valid service of the originating process, the Court

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is deprived of jurisdiction to adjudicate in the case.

(v) The 2nd defendant has not been validly served with any of the processes filed in this suit.

(vi) Having regard to the provision of Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules, 2009 under which the application was made, the prayer in the plaintiff/respondent’s motion for substituted service to effect service on the 2nd defendant “through the National Secretariat of the All Progressives Congress” is incompetent.

(vii) Any order made or based on an incompetent application is invalid and a nullity and liable to be set aside.

The Appellant’s motion on notice was heard by the Trial Court and on the 16th December, 2016, the Trial Court dismissed the application for lack of merit. (See pages 238 – 263 of the Record).

Also dissatisfied with the stance of the learned trial Judge, the appellant lodged an appeal at the Court of Appeal which dismissed the appeal on 17th July, 2017.

Further dissatisfied, the appellant has again, appealed to this Court via Notice of Appeal filed on 14th August, 2017, containing six grounds of appeal out of which four issues have

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been distilled for the determination of this appeal.

On 10th January, 2018, when this appeal was argued, the learned Senior Counsel for the appellant Chief Akin Olujinmi, SAN, leading other counsel, identified, adopted and relied on the Appellants brief of argument filed on 14th September, 2017 wherein the four issues are identified. They are:

1. Whether the lower Court properly resolved the issue raised by the Appellant to the effect that the trial Court raised suo motu and decided the issue that the appellant carried on substantial part of his business within the jurisdiction of the Court and that the trial Court therefore had personal jurisdiction over him.
2. Whether the lower Court was right in holding that the denial of the appellant of a hearing on the issue raised suo motu and decided by the trial Court was not shown to have occasioned a miscarriage of justice.
3. Whether the lower Court was right in holding that the case of Kida v Ogunmola (2006) 13 NWLR (pt 997) 377 was distinguishable from this case and that the trial Court had jurisdiction to hear and determine this suit.
4. Whether the lower Court was right in the

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interpretation it gave to Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009 which led to the failure of the lower Court to set aside the order of the trial Court for substituted service and the service based on same.

Also, in the 1st Respondent’s brief settled by Professor J. O. Amupitan, SAN but signed by V. U. Opara, Esq which was adopted on 10th January, 2018, four issues are decoded as follows:

1. Whether the lower Court was right in the interpretation it gave to Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules, 2009 and in refusing to set aside the order of the Trial Court for substituted service and the service based on same.
2. Whether the lower Court was not right in holding that the case of Kida v Ogunmola (2006) 13 NWLR (pt 997) 377 was distinguishable from this case and that the Trial Court had jurisdiction to hear and determine this suit.
3. Whether the lower Court did not properly resolve the issue raised by the appellant to the effect that the Trial Court allegedly raised suo motu and decided the issue that the appellant carried on substantial part of his business within the jurisdiction

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of the Court and that the Trial Court therefore had personal jurisdiction over him.

4. Whether the lower Court was not right in holding that the alleged denial of the appellant of a hearing on the issue raised suo motu and decided by the Trial Court was not shown to have occasioned a miscarriage of justice.

The learned counsel for the 2nd and 3rd Respondents distilled three issues for the determination of this appeal as contained in their joint brief signed by Muritala Abdul Rasheed Esq., and filed on 13th October 2017. The three issues are:

1. Whether the trial Court can raise an issue suo motu and decide the issue without permitting parties to address it on the issue.
2. Where issue 1 is resolved in the negative, whether it does not amount to a breach of fair hearing and consequently lead to a miscarriage of Justice,
3. Whether in view of the circumstances of this case, the Appellant’s appeal ought to be granted

The 4th Respondent to this appeal did not file any brief of argument and decided to remain neutral. The four issues distilled by the appellant and the 1st Respondent are basically the same excepting that the 1st

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Respondent renumbered them. The 1st and 2nd issues in the appellant’s brief are the 3rd and 4th issues in the 1st Respondent’s brief. Again issues 3 and 4 in appellant’s brief are issues 1 and 2 in the 1st Respondent’s brief. I shall determine this appeal based on the sequence as stated by the appellant. Issues 1 and 2 shall be taken together while issues 3 and 4 shall be treated separately. The second and third respondents are actually in favour of the appellant having regard to the tone of their arguments in their joint brief of argument. So, as it stands, it is only the 1st Respondent who is contesting this appeal. I need not say more on this.

ISSUES 1 AND 2:

The main complaint of the appellant under these two issues is that the lower Court did not give proper consideration to the issue raised by the appellant to the effect that the trial Court raised suo motu and decided the issue that the appellant carried on substantial part of his business within the jurisdiction of the Court and that the trial Court therefore had personal jurisdiction over him.

Learned Senior counsel submitted that the objection filed by the appellant before the

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trial Court as shown at pages 105 to 110 only challenged the purported service on the appellant of the originating summons and the order permitting same. That the appellant did not in the application raise any issue concerning whether or not the trial Court had personal jurisdiction over the appellant and so did not address the trial Court on same. According to him, on a proper consideration of the Appellants appeal, the lower Court would inevitably have found that the trial Court raised and decided suo motu, the issue that the appellant carries on substantial part of his business in Abuja and that it had personal jurisdiction over the appellant.

The learned Silk submitted further that the rule of law that a Court can take judicial notice of its records only means that no fact of which the Court may take judicial notice needs be proved. That it will not be necessary for the Court to hear evidence from the parties on the point. He opined that such right does not however permit a Court to raise an issue not raised by the parties as happened in this case. As to the meaning of issue, he cited the following cases. Onafowokan v Wema Bank (2011) 12 NWLR

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(pt 1260) 24 at 56 A – B, Nwaogwugwu v President of Federal Republic of Nigeria (2007) 6 NWLR (pt 1030) 237 at 259, Ejowhomu v Edok – Eter Mandillas Ltd (1986) 5 NWLR (pt 39) 1 at 21 D, Unity Bank Plc v Bouari (2008) 7 NWLR (pt 1086) 372 at 402 G.

It is the contention of the learned Silk that where a Court looks into its records and discovers any material there which it intends to rely on, it must invite the attention of the parties to it for their comments, relying on the Court of Appeal case of Geco-Prakla Nig Ltd v Ukiri (2004) 1 NWLR (pt 855) 519 at544.

Furthermore, it was argued that even if the document was tendered in evidence, a Court is not at liberty in the inner recess of its chambers to comb the document and use information derived therefrom which the parties had not brought out at the open hearing in the Court, without affording parties a hearing on same, referring to Nteogwuile v Otuo (2001) 16 NWLR (pt 738) 58 at 75 E – F, Ivienagbor v Bazuaye (1999) 9 NWLR (pt 620) 552 at 561 C. The learned SAN insists that it is not the law that parties need not be heard on an issue relating to the jurisdiction of the Court, referring to Akere v

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Governor, Oyo State (2012) NWLR (pt 114) 240 at 295 B – C, Oje v Babalola (1991) 4 NWLR (pt 185) 267 at 280.

The learned Senior counsel also submitted that the Court below ought to have set aside the decision of the trial Court because Order 2 Rule 1(9) of the Federal High Court (Civil Procedure) Rules 2009 relied upon by the trial Court has nothing to do with service of process. According to him, issue of service of process ought to have been determined before issue of jurisdiction of the trial Court was considered, relying on CGG Nig Ltd v. Aminu [2015) 7 NWLR (pt 1459) 577. Learned Silk opined that the lower Court was wrong in its decision that the appellant did not show that he had suffered any prejudice because what happened in this matter was not justice according to law, relying on Unilorin v Akinola (2014) 12 NWLR (pt 1422) 435 at 466 paragraph F – G, Ohakim v Agbaso (2010) 6 -7 SC 86 at 121 lines 26 – 36 and Paragraph 122, lines 1 – 2, Adigun & 2 Ors v Attorney General, Oyo State (1987) ANLR 11 at 141.

The learned Silk urged this Court to resolve this issue in favour of the Appellant.

In response to the above arguments in appellant’s

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issues 1 and 2, the learned Senior counsel for the 1st Respondent (whose issues 3 and 4 cover appellant’s issues 1 and 2) submitted that the whole essence of this appeal rests on the complaint by the Appellant that the Trial Court raised an issue suo motu and resolved same without hearing parties on it. In his argument, the learned silk broke down the appellant’s contention into two parts as follows:

(1) The Trial Court raised an issue suo motu.

(2) The Trial Court determined the issue without throwing it to the Parties first.

On the first part, it is contended that the question of the Address of the Appellant’s law office was not an issue raised by the Trial Court, but a point which the Trial Court made in the course of resolving an issue submitted by the Appellant himself. In response to the appellants contention that the issue of Jurisdiction was not raised by the parties, counsel submitted that the first issue actually raised by the Appellant before the Trial Court, as contained in the Appellant’s written Address filed before the trial Court was:

“Whether the Court did not act without or in excess of jurisdiction by granting the

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Plaintiff/Respondent’s application for an order for substituted service.”

Learned Senior Counsel submitted that the above issue which raised a general issue of jurisdiction was also considered by the lower Court as issue of jurisdiction on page 425 of the Record of Appeal. According to learned senior counsel, the issue relating to the address of business of the appellant was not raised by the Court suo motu but it is an issue submitted to the Court by the appellant himself. That contrary to the Appellants contention that the lower Court did not determine the issue of raising the matter suo motu, the Court below actually did so on page 426 of the record as reproduced in the Respondent’s brief at paragraph 2.33 on page 34 thereof.

The learned counsel argued that there is a difference between the Court raising an issue suo motu, and looking into its record to resolve the issue, and the Court looking into its record suo motu to resolve an issue already raised by the parties. He submitted that issue of jurisdiction was indeed raised by the Appellant before the Trial Court and that the only “suo motu” act of the Trial Court was to look into its

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records to reach a decision on the issue raised by the Appellant as held by the lower Court. According to him, a Court is entitled to look at the content of its file or records and/or refer to it in consideration of any matter before it, relying on Agbareh v Mimra (2008) All FWLR (pt 409) 559 at 589 paragraphs D – F.

It was further submitted that where issue of jurisdiction is involved, a Court should not limit itself to the argument of counsel but should look into its record and the statute to determine whether it has jurisdiction or not, relying on the Court of Appeal decisions in Alaeto v Nwapi (2007) All FWLR (pt 375) 375 at 603 paragraphs B – D, and SCC Ltd v Kingston (2014) All FWLR (pt 755) 390 at 403 paragraphs A – F.

Learned counsel submitted also that the trial Court never conceded that parties did not raise the issue as argued by the Appellant. That one can only “gloss over” or be ‘silent on something that exists and is present before the Court and that this fact highlights the remarkable difference between an issue raised and an issue argued. Learned counsel urged that the cases of CGG Nig. Ltd v Aminu (supra), Geco Prakla Nig.

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Ltd v Ukiri (supra) and Akere v Governor, Oyo State (supra) do not apply to this case. It is his further submission that since the basis for the contention of invalid service sprouted from the jurisdiction of the Court to order the service, and not the act or process of effecting service by the sheriff or bailiff of Court, the time to determine the territorial jurisdiction of the Trial Court was mature. That on the other hand, the subject matter jurisdiction of the Court may, as argued by the appellant arise later. He concluded that questions of territorial jurisdiction cannot, for the purpose of the Appellant’s objection and contention be alienated from personal jurisdiction. Furthermore, that though the appellant argues that the Lower Court should have held that the Trial Court’s reliance on Order 2 Rule 1(9) of the Federal High Court (Civil Procedure) Rules was wrong, he opined that the decision was right as the said provision is relevant to determining jurisdiction which was in issue as raised by the Appellant.

Finally, learned counsel submitted that the right to fair hearing is a personal right and is applicable where the rights of individuals are to

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be determined, but that the jurisdiction of the Court is a matter of public policy and does not pertain to the rights of individuals, as a result of which the right to fair hearing would not apply. He urged that the cases of Unilorin v Akinola (supra) and Adigun & 2 Ors v Attorney General, Oyo State (supra) relied upon by the appellant do not apply. He opined that this appeal draws its strength from technicality which tends to frustrate substantial justice which he urged the Court not to accede, relying on the case of Omisore v Aregbesola (2015) All FWLR (pt 813) 1673 at 1712, paragraphs B – C. He urged the Court to resolve these issues against the Appellant.

The arguments of the 2nd and 3rd Respondents are actually in support of the case of the Appellant and not in opposition to the appeal.

In his reply brief, the appellant herein, responding to the 1st Respondent’s argument with regard to the contention that the Court need not hear the parties when it raises an issue suo motu concerning its jurisdiction to entertain a case, he submitted that it runs contrary to the settled position of the law by several decisions of the Supreme Court referred

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to in their brief of argument. He urged the Court to ignore such argument.

May I start from the beginning. The aspect of the judgment of the learned Trial Judge which has given rise to the two issues summarized above may be found on pages 257 and 258 of the record of appeal. It states:

“More interesting on the question of personal jurisdiction, is the provision of Order 2 Rule 1(9) of the Rules of Court which permits suits to be brought in the Judicial Division of the Court where the defendant: (a) resides, or (b) carries on substantial part of his business or (c) in which the cause of action arose. In my view, the presence of any of the 3 elements above in a matrix of facts presented to a Court to wit: (a) residence, (b) carrying on of substantial part of business, and (c) cause of action arising, is sufficient to invest a Court with jurisdiction over a litigant.

Although the 2nd Defendant/Applicant chose to gloss over this, and also strangely the Plaintiff Counsel also was silent on it, I have taken notice of all the materials in the Court’s file, in the course of my reflection and writing of this decision. I have seen a letter of 10/11/16 to the

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Deputy Chief Registrar of the Court by the 2nd Defendant’s counsel whereby the 2nd Defendant’s counsel undertook to serve the plaintiffs counsel with the Reply on Points of Law in respect of this application. By that letter, it is obvious that the 2nd Defendant is the promoter of a law business in partnership with his lead counsel in this suit, Chief Akin Olujimi SAN. Their two names are listed as partners of the law business at the correspondence of the said 10/11/16. I have also noted that the offices of the said law business are 2 comprising of: (1) ABUJA OFFICE: 5th Floor, NICON PLAZA, Plot 242 Muhammadu Buhari Way, Central Business District, P.O. Box 12480, Garki, Abuja. Tel: 09 – 6724426; and (2) IBADAN OFFICE: THE LAW HUB, 9 Ring Road, Opp Iyaganku GM Round About. G.P.O. Box 1816, Ibadan. Tel: 02 -4672082, 4672083, Fax/TeI.02 – 4612084.

My view therefore is that although this law business is probably one of national weight and prestige, by maintaining offices in Abuja firstly and Ibadan secondly, it cannot be denied that the 2nd Defendant who carries on his law business in partnership with his counsel in Abuja, is someone who carries on a

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substantial part of his business in Abuja within the judicial division of this Court as to invest the Court with the requisite personal jurisdiction over him, and which jurisdiction on the authority of Kida v Ogunmola must be present for the Court to have authority to issue an order of substituted service on him.

I have reproduced in extenso part of the judgment of the trial Court for ease of reference, being the very reason for the complaint of the appellant herein. The Court below after reviewing the above decision of the trial Court, asked a pertinent question to wit: Whether the learned trial Judge raised suo motu the issue of the appellant carrying on a substantial part of his law business in Abuja. Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. See Oshodi & Ors v Ejifunmi & Ors (2000) 13 NWLR

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(pt 684) 298 at 332, Mojekwu v Iwuchukwu (2004) 11 NWLR (pt 883) 196, Odedo v PDP & Ors (2015) LPELR – 24738 (SC).

May I also state that although an appeal Court or any other Court is entitled in its discretion, to take points suo motu if it deems fit to do so in the interest of justice, that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken, the parties must be given opportunity to address the Court before a decision on the point can be made. This is a matter of duty and a fulfillment of the constitutional requirement of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Failure to observe this admonition may lead to such a decision being set aside on appeal. See Olusanya v Olusanya (1983) 1 SCNLR 134. Leaders of Company Ltd & Anor v Bamaiyi (2010) LPELR – 1771 (SC), (2010) 18 NWLR (pt 1225) 329, Okorodudu v Okoromadu (1977) LPELR 2495 (SC), Agbeje & Ors v Ajibola & Ors (2002) LPELR 237 (SC), (2002) 2 NWLR (pt 750) 127, Ogundele & Anor v Agiri & Anor (2009) LPELR -2328 (SC), (2009) 18 NWLR (pt

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1173) 219, Kraus Thompson Organisation Ltd v University of Calabar (2004) LPELR – 1715 (SC), (2004) 9 NWLR (pt 879) 631.

In the instant appeal, the Court below answered the question it asked in the negative. That is to say, that the learned trial Judge did not raise the issue suo motu. The learned Trial Judge reasoned that since the letter of 10th November, 2016 by the appellant’s counsel to the Deputy Chief Registrar of the Court was already in the file of the Court, the learned trial Court cannot be accused of raising the issue of the contents of the letter suo motu. I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised

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by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it.

In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that

A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”

It has not been denied that the said letter of 10/11/16 addressed to the Deputy Chief

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Registrar by the Appellant’s counsel was sent to the Court by the Appellant. A Court of law is eminently qualified and entitled to look at the content of its file or records and or refer to it in consideration of any matter or issue before it. See Agbareh v Mimira (2008) All FWLR (pt 409) 559 at 589 paragraphs D – F. The issue of jurisdiction was without doubt, raised by the Appellant before the Trial Court, so the only suo motu’ act of the Trial Court was to look into its records to reach a decision on the issue of jurisdiction raised by the Appellant. Although the learned Senior counsel for the Appellant contended that the issue of jurisdiction was not raised by the parties at the trial Court, the first issue actually raised by the Appellant before the Trial Court as contained in the Appellant’s Written Address filed before the Trial Court at pages 126 – 127 of the Record of Appeal proves otherwise. The 1st issue by the Appellant on page 127 of the record of appeal states:

“(1) Whether the Court did not act without or in excess of jurisdiction by granting the Plaintiff/Respondent’s application for an order for substituted service.”

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The above issue before the trial Court clears any iota of doubt as to whether issue of jurisdiction was raised before the trial Court or not. It is my view that the trial Court was right, as upheld by the Court below, to satisfy itself from all available materials placed before it that it has jurisdiction to entertain the suit and make the orders requested by the first Respondent herein as Plaintiff. Being an issue raised by the Appellant himself before the Trial Court, it is unimaginable how the Appellant’s right to fair hearing could have been infringed by the Court in the circumstance.

Let me clear some doubts. When the learned trial judge, speaking on the issue of the business address of the Appellant in the letter of 10/11/16 said that ” the 2nd Defendant/Applicant chose to gloss over the issue ” and that “…… the plaintiffs counsel also was silent on it…..” it presupposes that the issue was present before the Court. The mere fact that parties did not adequately argue an issue raised by them before the Court, does not mean that the issue was not raised, and as I have stated earlier, the duty of the Court is to resolve issues raised

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and in so doing it should not restrict itself to the limits of the arguments of parties on the issue especially where they are issues of law and also touching on the jurisdiction of the Court. The cases of Geco Prakla Nig. Ltd v Ukiri (supra) and Akere v Governor of Oyo State relied upon by the Appellant are inapplicable because the Court below held that the learned Trial Judge did not raise any issue suo motu. I agree entirely that the trial Court did not raise the issue suo motu.

Having agreed with the Court below that the Trial Court did not raise the issue suo motu, all the arguments regarding issue of denial of fair hearing and substantial justice are of no moment. Thus the cases of Unilorin v Akinola (supra) and Adigun v Attorney General of Oyo State (supra) do not apply here. In summary issues one and two do not avail the appellant as they are hereby resolved against him.

ISSUE 3:

I shall now consider issue 3 which is issue 2 in the 1st Respondent’s brief of argument. Basically, the Appellant is challenging the decision of the lower Court that the Supreme Court’s decision inKida v Ogunmola (2006) 13 NWLR (pt 997) 377 was distinguishable

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from this case and that the trial Court had jurisdiction to hear and determine this case.

Learned Senior counsel for the Appellant submitted that the decision of the Supreme Court in Kida v Ogunmola (supra) is to the effect that where at the time of the issuance of a writ or originating process, personal service is impossible on the defendant because he is not within the area of jurisdiction of the Court, the trial Court has no jurisdiction to order substituted service within its area of jurisdiction on such a defendant. The learned SAN contended that the lower Court ought to have held that personal service was not possible on the appellant since he was outside Abuja and resident in Owo, Ondo State as attested to by the 1st Respondent in his paragraph 4 of supporting affidavit to his motion for substituted service that personal service was impossible, relying on the English case of Fry v Moore (1889) 23 QBD, 89.

Learned Silk submitted that absence of a valid service of process robs the Court of jurisdiction to adjudicate on a case, relying on Ihedioha v Okorocha (2016) 1 NWLR (pt 1492) 147 at 176 – 177 paragraphs H – A.

It was contended that

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notwithstanding the provision in Section 19 of the Federal High Court Act which vests nationwide jurisdiction in the Federal High Court, the learned trial Judge held that the said provision is not necessarily an absolute article of faith, but one to be taken with necessary qualification. This decision, according to him has not been appealed against and binds the 1st Respondent relying on Akere v Governor, Oyo State (2012) 12 NWLR (pt 1314) 240, Attorney General, Anambra State v Attorney General of the Federation (1993) 6 NWLR (pt 302) 692, Ogunyade v Oshunkeye (2007) 15 NWLR (pt 1057) 218. On the nationwide jurisdiction of the Federal High Court, he referred to the case of MV Arabella v NAIC (2008) 11 NWLR (pt 1097) 182 at 220, 221 H – A. He urged the Court to resolve this issue in favour of the Appellant.

In response, the learned Senior counsel for the first Respondent submitted that although the 1st Respondent did not agree that the appellant was, at all material time leading to the filing of this suit, resident in Owo, Ondo State, it would not make any difference if it were so in view of the nationwide nature of the jurisdiction of the trial Federal

32

High Court. According to him, the appellant would still fall within the jurisdiction of the Trial Court. The learned SAN submitted that the necessary qualification alluded to by the Trial Judge in his Ruling does not restrict the jurisdiction of the Federal High Court but only serves as a guiding principle on the basis of convenience of the parties. The case of CBN v Interstella Communications Ltd (2015) 8 NWLR (Pt 1462) 456, was cited and relied upon.

According to learned SAN, the case of Kida v Ogunmola (supra) was clearly a case of serving processes within jurisdiction, a defendant who was, to the knowledge of all, outside the jurisdiction of the Court. That it related to the territorial jurisdiction of a State High Court. It is not the case here, he concluded.

It is further argued that the lower Court did not hold contrary to the decision in Kida v Ogunmola (supra) but only distinguished it from the instant case and held same to be inapplicable. He urged the Court to resolve this issue against the appellant.

Having already held in this judgment that the trial Court had jurisdiction to hear and determine this suit, I shall limit myself in

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considering this issue to the decision of the lower Court that the case of Kida v Ogunmola (supra) is distinguishable from the instant case. It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. This Court made the point in Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 55 where it was stated that a judgment should always be read in the light of the facts on which it was decided. It was also decided that the rules of stare decisis do not allow Courts to apply the ratio of a case across board and with little regard to the facts of the case before them. See also Okafor v Nnaife (1987) 4 NWLR (pt 64) 129, Udo v The State (2016) LPELR – 40721 (SC).

Secondly, each case remains authority for what it decided. Therefore, an earlier decision of this Court will only bind the Court and subordinate Courts in a subsequent case if the facts and the law which informed the earlier decision are the same or similar to those in the subsequent case. Where the facts and/ or the legislation which are to inform the decision in

34

the subsequent case differ from those which informed the Court’s earlier decision, the earlier decision cannot serve as a precedent to the subsequent one. See Godwin Ugwuanyi v NICON Insurance Plc (2013) 11 NWLR (pt 1366) 546, Clement v Iwuanyanwu (1989) 3 NWLR (pt 107) 39 and Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (pt 864) 580, Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt 105) 558, Western Steel Works Ltd & Anor v Iron Steel Workers Union of Nigeria & Anor (1987) 1 NWLR (Pt. 49) 284, Skye Bank Plc & Anor v Chief Moses Bolanle Akinpelu (2010) 9 NWIR (pt 1198) 170.

Now the facts upon which the case of Kida v Ogunmola (supra) was decided may be summarized as follows:

The suit was commenced in the Maiduguri Judiciary Division of the High Court of Borno State where the plaintiff claimed certain relief against five defendants. In the statement of claim, the plaintiff had stated that the 2nd defendant was a businessman who resides in Ibadan, Oyo State and following this, had brought an application seeking leave to serve the 2nd defendant out of jurisdiction. The application was granted by the Trial Court. Thereafter, the plaintiff

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sought leave to serve some of the Defendants, 2nd Defendant inclusive, by substituted means at their last known address which was within the territorial jurisdiction of the Court and the said leave was granted.

Armed with the order of the Court, the plaintiff went ahead to serve the 2nd Defendant by substituted means at his last known address within the territorial jurisdiction of the Court. After default judgment had been given, the 2nd Defendant brought an application to set aside the judgment on the ground, amongst others, that he had since relocated out of Borno State to Ibadan in Oyo State and was not served with the Court processes.

The Trial Court refused the application but the Court of Appeal held otherwise and the Supreme Court upheld the decision of the Court of Appeal.

As it were, the Appellant sought and still seeks to rely on the decision in this case to establish his contention that since personal service was impossible on the appellant because he was not within the “area jurisdiction” of the trial Court the Trial Court had no jurisdiction to order substituted service on the appellant within its area jurisdiction. For the purpose

36

of this appeal, I do not wish to be dragged into the controversy as to the difference between “area jurisdiction” and “territorial jurisdiction” as the difference may just be that between six and half a dozen.

The learned Trial Judge, after reading the case of Kida v Ogunmola (supra) and comparing same with the facts of this case, had this to say at page 307 of the record of Appeal:

“It has been deposed that the 2nd Defendant resides in Owo, Ondo State, outside the Courts territorial jurisdiction. Even if this suggestion were accepted to be true, it appears to me that it does not conclusively settle the question of the Court’s personal jurisdiction over the 2nd Defendant. In the first place, it has long been settled that the jurisdiction of the Federal High Court is nationwide, and thus covers litigants wherever they might be present in the country. Where a litigant is uncomfortable with a suit brought against him at any division of the Court because probably it visits him with an unbearable inconvenience, such a party is enabled by the Rules to apply for a transfer of the case to another Court that serves a better convenience. See Order 3 Rule 4 of

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the Rules of this Court. The provision to apply for a transfer to another Court that confers greater convenience must therefore mean that the rule that the Federal High Court has a nationwide jurisdiction is not necessarily an absolute article of faith, but one to be taken with necessary qualification.”

The learned Senior counsel for the appellant had submitted in paragraph 6.13ii and (v) of the Appellant’s brief of argument that the above position of the learned trial Judge has whittled down the nationwide jurisdiction of the Federal High Court. For me, this is far from being so. Rather, it strengthens that provision in Section 19(1) of the Federal High Court Act which provides:

“19(1) The Court shall have and exercise jurisdiction throughout the Federation, and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions or part thereof by such name as he may think fit.”

The above nationwide jurisdiction of the Federal High Court is further strengthened by Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rule 2009 which provides inter alia:

“In this Order

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‘out of Jurisdiction’ means out of the Federal Republic of Nigeria.

See Agip (Nig) Ltd v Agip Petroli International & Ors (2010) 5 NWLR (pt 1187) 348. The above interpretation is crystal clear and unequivocal.

Based on the decision of the learned Trial Judge and the above provision, the lower Court held on page 334 to 335 as follows:

“Consequent upon the above, I hold the view that the cases cited by the Appellant herein, particularly KIDA V OGUNMOLA (supra) are distinguishable from the instant case as they are cases pertaining to the territorial jurisdiction of the High Court of a State and the Federal Capital Territory, and not the territorial jurisdiction of the Federal High Court, as in the instant case.”

The case of Kida v Ogunmola (supra) concerns the issuance of process in the High Court of a State and service outside that State wherein the jurisdiction of the High Court of a State is circumscribed within the territorial boundary of that State. In respect of processes issued in the Federal High Court to be served on a defendant at an address in any State of the Federation or of the Federal capital Territory, it is one to be

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served within the territorial jurisdiction of the Federal High Court which comprises all the 36 States and the Federal Capital Territory as set out by the Constitution of the Federal Republic of Nigeria 1999 (as amended). What I am endeavouring to say is that the territorial boundaries of the Federation of Nigeria are the limits of the territorial jurisdiction of the Federal High Court as its processes apply as a matter of law throughout the country as the processes of a single Court issued within jurisdiction.

Thus, all its processes including the initiating processes such as writ of summons are to be regulated and governed by the Rules made by the Chief Judge to regulate the practice and procedure in the Court pursuant to the powers vested in him by Section 254 of the Constitution.

In the instant case, assuming that the appellant resident in Owo in Ondo State, or any other part of territorial boundary of Nigeria, the originating summons issued by the Federal High Court in Abuja can be personally served on him at that address. Where, as it turned out in this case, personal service was impossible, the learned trial Judge was competent and had the

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jurisdiction to make an order for substituted service on the appellant. This is so because of the nation wide territorial jurisdiction of the Federal High Court. Both the trial Court and the Court below were right to distinguish the case of Kida v Ogunmola (supra) from the instant case because the former relates to the jurisdiction of the State High Court while the latter relates to the jurisdiction of the Federal High Court with their respective and different territories of operation. As it turns out, this issue is resolved against the Appellant.

I shall now consider issue four which is issue one in the 1st respondent’s brief. It is basically whether the lower Court was right in the interpretation it gave to Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009 which led to the failure of the lower Court to set aside the order of the trial Court for substituted service and the service based on same.

The said Order 6 Rule 5[b] of the Federal High Court (Civil Procedure) Rules 2009 provides:

“5. Where it appears to the Court (either after or without an attempt at personal service) that for any personal service cannot be

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conveniently effected, the Court may order that service be effected either

(a)

(b) by delivery of the document to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served.”

The contention of the appellant is that from the rule of Court reproduced above, a Court can only order that substituted service be effected by delivery of the documents to some person being an agent of the person to be served or to some other person. According to learned Senior counsel for the appellant, a careful reading of Rule 5[b] should leave no one in doubt that an applicant for substituted service will need to indicate in his application that the person the process will be delivered to is an agent of the person to be served and if he is not an agent but some other person, who may be for instance, the secretary, clerk, boss, friend or brother of the person to be served. That

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indicating that other person, the process will be delivered to, will enable the Court to form an opinion as to whether there is reasonable probability that the document would in the ordinary course come to the knowledge of the person to be served. That the rule fixes the document to an identifiable individual without any need to put his name in the affidavit.

Relying on some unreported cases of this Court and the case of Eimskip Ltd v Exquisite Ind. Ltd (2003) 4 NWLR (pt 809) 88, learned Senior counsel submitted that the application of the 1st Respondent did not pray for the originating process to be delivered to an agent of the appellant or some other person within the meaning of Order 6 Rule 5(b) aforesaid. That the failure of the lower Court to follow the decision of the Supreme Court in Eimskip Ltd v Exquisite Ind. Ltd (supra) led to the erroneous decision of the lower Court to align with the trial Court by holding that the request to serve through the address of the National Secretariat of All Progressives Congress was in compliance with Order 6 Rule 5(b) of the Rules of Court. According to him, notwithstanding that the originating process was never

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delivered to the appellant by the National Secretariat of the All Progressives congress through which the originating process was to be served according to the order of the trial Court, but was sent to one Ayodele Akinsanya who thereafter sent it to the appellant the Court below failed to hold that the purported service was bad in law and that the same ought to be set aside. He urged the Court to resolve this issue in favour of the appellant.

In response, the learned SAN for the 1st Respondent submitted that the grant of an order for substituted service is an exercise of discretion by a Court and the Court is given wide powers to do justice by making an order with the primary aim of ensuring that the relevant party is served with the Court process. He opined that being an exercise of discretionary power, the Court has a duty to ensure that the interest of justice is held above all without allowing technicality to becloud the process, relying on First Bank of Nig Plc & Anor v Maiwada & Ors (2012) LPELR 2041 (SC).

The learned Silk argued that from the wording of the Rule, it is sufficient if the Court is satisfied that the method of

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substituted service would suffice to notify the party to be served of the processes so served referring to paragraphs 5 – 8 of appellant’s affidavit, he submitted that the processes served pursuant to the order of the Trial Court came to the knowledge of the Appellant in this case since the object of service is to give notice of the pending matter, relying on Okoye v Centre Point Merchant Bank Ltd (2008) All FWLR (pt 441) 810. That the law is moving towards substantial justice and not technicality. He relies on Adeyemi v The State (2015) All FWLR (pt 790) 1201. He urged the Court to resolve this matter against the appellant.

I have already set out the said Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009. The learned Trial Judge made the following interpretation to the said Rule. That is to say:

“Secondly, although Rule 5(b) of Order 6 contemplates the Court ordering the substituted service on a person being an agent of the person to be served, to some other person, I have gone through the entire Rules of Court and have not seen any provision limiting this role of agent or some other person who can receive a process on behalf

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of a person to be served, only to natural persons as opposed to artificial persons. In the absence of such restrictions, I am inclined to go with the general principle that this can cover both natural and artificial persons. In the wise, service “through the National Secretariat of the All Progressives Congress” as was sought and obtained and indeed served, satisfies the requirement of Order 6 Rule 5(b) of the Rules of Court if you construe the provisions in a teleological way.” See page 261 of the Record of Appeal.

The lower Court stated at page 443 of the record on the issue that:

“….the Appellant was fully aware of the action against him and instructed his Solicitors to take appropriate steps. I hold the view therefore that the Trial Court’s exercise of discretion did not occasion any miscarriage of justice at all and to hold otherwise would amount to a very narrow construction of the provisions of Order 6 Rule 5(b) of the Rules of the trial Court.”

Without much ado, I find it extremely very easy to agree with the views expressed by both the learned Trial Judge and the Court below in the interpretation accorded Order 6 Rule 5(b) of the

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Federal High Court (Civil Procedure) Rules 2009. In Okoye v Centre Point Merchant Bank Ltd (2008) All FWLR (pt 441) 810, this Court stated clearly that the object of all types of services of Court processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and be able to resist if he may, that which is sought against him. In this case, this objective of service was obtained as appellant was successfully served and made aware of the pending action.

In paragraphs 5, 6, 7, and 8 of the affidavit deposed to by one Ayo Akinsanya (a legal Practitioner in the law firm of the Appellant as deposed to in paragraph 11 of the same affidavit) in support of the appellant’s application before the Trial Court for the setting aside of the Order of substituted service, it was clearly stated as follows:

“5. Based on the Order, the plaintiff/respondent on 18th October, 2016 caused to be served at the National Secretariat of the 1st respondent at 40, Blantyre Street, Wuse 11, Abuja, the originating summons, motion on notice for interlocutory injunction and motion on notice for abridgment

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of time meant for the defendant/appellant

6. On the same October, 2016, the National Secretariat of the 1st Respondent delivered the processes to me in my office at the 5th floor, NICON Insurance Plaza, Central Area, Abuja.
7. I immediately called the 2nd defendant/applicant who was then in Owo Ondo State on phone to tell him that the process mentioned above were delivered to me in my office at the above address, by the 1st defendants staff, with a request to Pass them to him.
8. The 2nd defendant/applicant then directed that I should pass the processes to Chief Akin Olujinmi, CON, SAN his solicitor, to take steps he considers appropriate as far as the case concerns him.”

Earlier in this judgment, I held that the learned Trial Judge had the jurisdiction to make the order of substituted service on the appellant. The said Order was thus executed and the appellant notified of the suit against him and he took steps to defend the suit. I am aware that Order 6 Rules 5(b) provides that such substituted service be done through “a person being an agent of the person to be served or to some other Person,” For the avoidance of doubt, the word

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“person” is not defined under the rules. But by Section 18(1) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, a “person” is defined as including anybody or persons corporate and incorporate. The All Progressives Congress, the political party of the Appellant at its National Headquarters Abuja, qualifies as “some other person” as used in the Rules. It is obvious that a political party is an artificial person and operates through natural persons. As the appellant was a governorship candidate of the APC, it was reasonable for the learned trial Judge to believe and exercise his discretion in favour of granting the application through the National Secretariat of the Party. SeeUniversity of Jos v Ikegwuoha (2013) 9 NWLR (pt 1360) 478, Atake v Afejuku (1994) 9 NWLR (pt 368) 379, Ibrahim v Judicial Service Committee, Kaduna State & Anor (1998) 14 NWLR (Pt 584) 1.

The phrase “come to the knowledge of the person to be served” in Rule 5[b] gives it a liberal meaning. That is to say, where the process is made available at the office or residence of the defendant whether he is present or not and he is so informed as was done in this

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case, the process has come to his knowledge and that satisfies Order 6 Rule 5[b) of the Federal High Court (Civil Procedure) Rules. To hold otherwise could be to dignify technicality above doing substantial justice. Any interpretation by our Courts which seeks to emasculate should be avoided as it would not serve the interest of justice and would tend to confine the citizenry into a legal container. It should be avoided at all legitimate costs. See First Bank of Nig. Plc & Anor v Maiwada & Ors (supra). Moreso, the appellant who had timeously become aware of the suit at the trial Court, has not shown what miscarriage of justice he has suffered.

This Court in Adeyemi v The State (2015) All FWLR (pt 790) 1201 at1271 – 1281 paragraphs D – H, referring with approval to the decision in NIPOL Ltd v Bioku Investment & Property Co Ltd (1992) 3 NWLR (pt 232) 727 at 753, held thus:

“Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, It is therefore better to have a case heard and determined on merit than to leave the Court with a

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shield of ‘victory’ obtained on mere technicalities.”

Only recently this Court in Omisore v Aregbesola (2015) All FWLR (pt 813) 1673 at 1712 paragraphs B – C per Nweze, JSC held as follows:

“Now, it is no longer in doubt that this Court and indeed all Courts have made a clean sweep of “the picture of the law and its technical rules triumphant” Aliu Bello & Ors v Attorney General, Oyo State (1986) 5 NWLR (pt 45) 828, 866. Let me explain. By its current mood, it is safe to assert that this Court has firmly and irreversibly spurned the old practice where the temple of Justice was converted into a forensic abattoir where legal practitioners, employing such tools of their trade like “the whirling of technicalities”, daily butchered substantive issues in Court in their “fencing game in which parties engage themselves in an exercise of outsmarting each other…” Afolabi v Adekunle (1983) 2 SCNLR 14,150. Those days are gone; gone for good.”

I agree entirely. The interpretation given Order 6 Rule 5[b) of the Rules of the trial Court by that Court as affirmed by the lower Court cannot be faulted. Any attempt to give it another interpretation or

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meaning would be tantamount to exhuming the already dead and buried issue of technicality. As it turns out, this issue does not avail the Appellant at all. I accordingly resolve it against the Appellant.

Having resolved the four issues against the appellant, what remains to be said is that there is no merit in this appeal. It is hereby dismissed. I affirm the judgment of the Court of Appeal, Abuja Division delivered on 17/7/17. I award costs of N500,000 against the Appellant in favour of the 1st Respondent only.

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