Supol Chris & Anor. V. Igwe Gilbert Ononujju & Ors. (2007)
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MOHAMMED LADAN TSAMIYA, J.C.A.
This is an appeal against the decision of the Anambra State High Court (referred herein as the trial Court) sitting in Onitsha Judicial Division delivered 213/2006 in Suit No,0/256M/2005.
The back ground facts: From the record of this appeal, the 2nd – 4th applicants (in this appeal referred to as the 2nd – 4th respondents) filed a Motion experte on 23/8/2005, praying the trial Court for the following orders:
- Leave to the applicants (2nd – 4th respondents) to enforce their fundamental rights by seeking the reliefs set out in their statement attached therein.
- Permitting the grant of leave to stay of all actions of the respondents (1st respondent as well as the appellants respectively) against the applicants (2nd – 4th respondents) including harassing, arresting torturing and detaining the applicants or compulsorily acquiring the applicants’ farm/Estate.
- For substituted service on the 2nd and 3rd respondents (appellants) in the following manner:
“By posting all the court’s processes in this suit to their respective offices at the Force Headquarters, Louis Edel House, Abuja, vide EMS Speed Post”
On 26/8/2005 the trial Court granted the prayers contained in the motion, and the matter was adjourned to 9/9/2005 for the substantive Motion on Notice to be heard.
After several adjournments “off record,” the trial court did not sit until 16th January 2006 when it took arguments from the 2006 4th respondents’ Counsel, is the absence of the appellants from the Court. During that sitting of 16/1/2006, the 2nd – 4th respondents’ Counsel however, moved their motion on notice and the Counsel to the 1st respondent replied. The appellants were absent and unrepresented.
Thereafter, the application was adjourned to 2/3/2006 for Judgment.
On the adjourned date of 2/3/2006, the trial Court delivered it’s judgment against the appellants and also found 1st appellant jointly liable in damages with the 1st respondent.
Being dis-satisfied with the said judgment, the appellants appealed to this Court on two grounds of appeal.
In accordance with the Rules of this Court, parties are to file and exchange their briefs of argument. In compliance, the appellants filed their joint appellants’ brief on 8/6/2006 within time, while after being served with the appellants’ brief of argument, the I” respondent file his own, on 5/7/2006 also within time. The 2nd – 4th respondent filed nothing. The appellants, on 16/5/2007,was granted leave to hear the appeal on the appellants, and 1st respondent’s briefs only since the 2nd – 4th respondents failed to file brief of argument.
On the day of hearing this appeal, i.e. 17/10/2007, both Counsel to the parties adopted their respective briefs, and all parties asked this Court to allow the appeal including I” respondent.
The issues which have emerged for consideration in this appeal based on the two grounds of appeal filed can now be staled thus:
- Whether the learned trial Judge had the competence and jurisdiction to hear and determine this case when some of the parties were not served with the Court’s Processes in the Matter.
- Whether the learned trial Judge was right to have proceeded to hear and determined this case with out ensuring for once that “hearing notice” was served on the appellants.
The 1st respondent also formulated reads:
Whether the trial Court was right to hear and determine this matter when all the parties were not properly before it and no hearing notices ever served on the appellants.
On the above formulated issues by the parties, I dare say, with respect, are for all intents and purposes, the same. I shall therefore adopt the two issues formulated by the appellants for the purpose of this appeal.
FIRST ISSUE: The gist of the appellants’ complaint as contained in their brief of argument is that, in the circumstances of this case, the trial Court lacked the competence and jurisdiction to hear and determine the’ action; because the appellants were never served with the processes of Court, namely, Motion on Notice filed on 30/8/2005, and the Court’s order granting the 2nd – 4th respondents leave to enforce their fundamental rights.
The appellants also submitted that it is not sufficient for a court process to be posted by mail without the person who posted it ensuring that the said mail reached its destination or was received by the addressee or their agents on their behalf. Also it is not sufficient for affidavit of service to be filed in Court without the affidavit of service ascertaining or stating, that the processes posted by mail were actually received. It was submitted that no DELIVERY NOTE from EMS Speed Post was filed in court, to show that the Originating Court Processes in this mailer were received by the appellants in order to justify the purported affidavit of service and payment receipts. In support of this submission the appellants refers us to pages 24 – 25 of the record of appeal. The appellants submitted that the purported affidavit of service did not even state what was allegedly served or the actual parties that were served with the Originating Court Processes. The appellants refer us to the case of Mobil Nigeria Plc vs. Mr. Ezekiel Shut Pan (2000) 5 NWLR (Pt.657) 506 at 527 paragraphs ‘F’ -‘G’ per – Chukwuma Eneh JCA (as he then was). The appellants further submitted that service by substituted service as ordered by the trial Court is contrary to the express Provision of Order 2 rule 1 (3) of the Fundamental Rights (Enforcement Procedure) Rules. They also submitted that in the cases for enforcement of Fundamental human rights, service of process outside a State in to another State must be done in accordance with section 97 of the Sherriffs and Civil Process Act, 1990 and non-compliance with it vitiates the entire proceedings and makes the process a nullify. The case of Dr. Chris Ngige & Ors. Vs Hon. Nelson Achukwu & Anor. (2005) 2 NWLR (Pt.909) 123 at 143 paras, G – B was referred to us. The appellants finally on this issue submitted that there was no compliance with the said section 97 of the Act. 1990.
SECOND ISSUE. The appellants’ complaint under this issue is that the trial court was wrong to have proceeded to hear and determined this matter without the Hearing notice being served on the appellants, and this is a gross inadvertence on the part of the trial Court which is an affront to the principle of fair hearing prescribed by section 34(1) of the 1999’Constitution of Nigeria. The following cases were relied upon in support of this submission;
(1) Julius Berger (Nig) Ltd. vs. Femi (1993) 5 NWLR (Pt.295) 612 at 620 paras. F – H.
(2) Disher Vs. Disher (1965-1966) Probate 31 at 36 – 37 paras. G-E
(3) U.N.T.H. Management Board & Anor – Hope Nnoli (1994) 8 NWLR (Pt.363) 376 at 403 – 404 paras. H – A.
(4) Joseph Oyeyeml vs. Comm. For Local. Govt Kwara State (1992) 2 NWLR (Pt.226) 661 at 689 paras D – E.
(5) Adeyemi Adeniyi vs. The Governing Council of Yaba Tech. (1993) 6 NWLR (Pt.300) 426 at 449 paras, G – H.
(6) Kalu Mark & Anor vs. Gabriel Eke (2004) 5 NWLR (Pt.865) 54 at 78 paras. A-E.
The appellants finally on this issue submitted that throughout the proceedings and adjournments, they were never put on notice, as no hearing notice was ever served on them despite the re-assignment of the matter to High Court No.4 from High Court No.2. That, a trial in which the other party was not heard through failure to serve Court process is a nullity. They urged this Court to so hold that the trial offends the principle of natural justice. The following cases were relied upon.
(1) Queen Omabuwa vs. Madam Martha Owhofat-sho & Anor. (2006) 5 NWLR (Pt.972) 40 at 67 paras. A.B.
(2) Mohammed Faladu vs. Mall. Hudu Maikwai (2003) 9 NWLR (Pt.826) 643 at 657 paras. F – A.
(3) Mobil Nig. Plc vs. Mr. Ezekiel Shut Pam (supra) 506 at 529 para, E, P.528 paras D – E.
The arguments of the 1st respondent in his argument is identical with that of the appellants. He also supports allowing the appeal. It is therefore needless in this Judgment to re-state his submission.
In the instant appeal, the aggrieved appellants’ complaint is of non-service of the Processes of the Court. This complain, however, is raising a fundamental issue which goes to the competence and jurisdiction of the trial court to adjudicate the matter.
The question, therefore is, when is. Court competent and has jurisdiction to adjudicate the matter before it? The Supreme Court has spelt out in Madukolu vs Nkemdillm (1962) 1 All NLR 587, the circumstances under which the Court can be
regarded as having competence and jurisdiction. These are where:
- The Courts is properly constituted as regards numbers and qualification of the members of the bench.
- The subject matter of the action is within the jurisdiction of the Court, and
- The case before the Court is initiated byc due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.
It seems that, the second of arm of the third condition prescribed above is the one relied upon by the appellant in this appeal i.e. that the pre conditions precedent for the exercise of jurisdictions have not been complied with. In such a circumstance, the defect is fatal to the competence and jurisdiction of the trial Court to entertain the suit. This is because the Court will, in such a situation not seized with jurisdiction in respect of the action. The issue of non-service of Court’s process is not peculiar to this Court. In Kalu Mark Vs. Eke (2004) 17 NSCQR. 60
at P. 80 paras. ‘F’ – ‘G’ it was held that a Court is said to have competence and jurisdiction on the matter before it when the service of the process of Court is effected on the defendant. The due service of the process of the Court is a condition precedent to the hearing of the suit. Therefore, if there is a failure to serve the process of the Court where the service of the Process is required, the person affected by the Order, but not served with the process, is entitled Ex-dibito Justitiae, to have the order set a side as a nullity. For if there is no service, the fundamental rule of natural justice audi alteram pertem – will be breached. See Skenconsult (Nig) case (supra).
I have gone through the records and read all the Cases cited by Counsel to both sides. It is however, clear that there is no where in the record indicating that the issue of non service to the appellants has ever been raised and determined by Nkemdilim (1962) 1 All NLR 587 the circumstances under which the Court can be regarded as having competence and jurisdiction. These are where:
- The Courts is properly constituted as regards numbers and qualification of the members of the bench.
- The subject matter of the action is within the jurisdiction of the Court, and
- The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.
It seems that, the second of arm of the third condition prescribed above is the one relied upon by the appellant in this appeal i.e. that the pre conditions precedent for the exercise of jurisdictions have not been complied with. In such a circumstance, the defect is fatal to the competence and jurisdiction of the trial Court to entertain the suit. This is because the Court will, in such a situation not seized with jurisdiction in respect of the action.
The ,issue of non-service of Court’s process is not peculiar to this Court. In Kalu Mark vs. Eke (2004) 17 NSCQR. 60 at P. 80 paras. ‘F’ – ‘G’ it was held that a Court is said to have competence and jurisdiction on the matter before it when the service of the process of Court is effected on the defendant. The due service of the process of the Court is a condition precedent to the hearing of the suit. Therefore, if there is a failure to serve the process of the Court where the service of the Process is required, the person affected the trial Court. It is raised on appeal before this Court for the first time. It is a new point.
It is thus my humble view that though the question raised by the appellants is a question of jurisdiction, yet when a new point or new issue is to be argued in the appeal the appellate Court ought to satisfy itself that there was a decision made by the trial Court one way or the other on that new point or issue against which the appellant is now complaining. In Saude vs. Abdullahi (1989) 4 NWLR (pt: 116) 387 at 434 the Supreme Court decided that “A point not taken at the trial Court, but presented for the first time in the Court of Appeal ought to be very jealousy scrutinized …. .”
It can then be argued that the new issue raised now is on jurisdiction which touches the competence. I wish to state that, “Jurisdiction” which touches the competence of Court is a very radical and crucial issue. That being so, a proper issue of jurisdiction can be raised at any time and at any stage of proceedings either at first instance or even on appeal.
But it has been well established by a line of authorities, that no substantial point, such as the one under consideration in this appeal, which had not been taken in the Courts below, whether as a ground of appeal or as a point in the argument of parties, will be allowed to be raised for the first time on appeal, except under special circumstances. See also I.B.W.A. Vs. Imano (Nig) Ltd (1988) 3 NWLR 633. This principle is based on two reasons. First reason is that, in determination of the point, evidence may have to be adduced and finding there on made, and that these are matters best handled by the Court below. Second reason is that, to accept to deal with the new point will have the effect of the appellate Court giving an important decision without having the benefit of the judgment ‘of the court below on it. Sec John Ikiubor Dweye Vs. Joseph Iyomahan (1983) 8 S.C. 76 at p. 83.
There are, however, exceptions to the general rule that, an appellate Court should not allow a point not raised there to be raised for the first time on appeal. See Shonekan Vs. Smith (1964) 1 ALL NLR, 168 at 173, But the leave of the See Shonekan Vs. Smith (1964) 1 ALL NLR, 168 at 173. But the leave of the appellate Court for the new point to be argued should first be sought and obtained by the appellant for the operation of any of the exceptions. See Frederick Nwobi Otogbolu vs. Onwemene Okeluwa (1981) 6-7 S.C. 99. Such a new point can not be argued as of right.
The exceptions to the rule stated above and which a point or a ground of appeal not raised in the Court below, may, with the leave of the appellate Court, be raised for the first time on appeal, were stated by the Supreme Court in the Case of Djukpan Vs. Orovuyovbe & Anor. (967) 1 ALL NLR 134, and this appeal is not within such exceptions.
Applying the statement of the law above, I am of the opinion that this appeal is incompetent and I so hold. The appeal therefore is struck out for being incompetent.
No costs ordered.
Other Citations: (2007)LCN/2550(CA)
