INDEPENDENT NEWSPAPERS LTD v. OKONKWO (2020)

INDEPENDENT NEWSPAPERS LTD v. OKONKWO

(2020)LCN/14442(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, July 10, 2020

CA/E/443/2014

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

INDEPENDENT NEWSPAPERS LIMITED APPELANT(S)

And

MR IFEANYI OKONKWO RESPONDENT(S)

RATIO

WHETHER OR NOT ERE ARGUMENT OR SUBMISSION BY A PARTY WITHOUT MORE DOES NOT INVALIDATE THE FACTS CONTAINED IN AN AFFIDAVIT

However, the law is settled by a long list of authorities that mere argument or submission by a party without more does not invalidate the facts contained in an affidavit of service. An affidavit of service of a Court’s processes by the bailiff or other officer of the Court empowered to do so, is prima facie evidence of the service of the processes and the burden is on the party who disputes such service to rebut the presumption of such service is by filing a counter-affidavit to the affidavit of service. See the case of Uko v Ekpenyong (2006)5 NWLR (PT.972)70.

THE IMPORTANCE OF SERVICE OF COURT PROCESSES

The issue of service of a Court process is an intrinsic aspect of our procedural law. It is a condition precedent to the competency of Court in assuming jurisdiction and adjudicating over the legal rights of litigants. Thus, any matter or proceedings affected by lapse in the service of a process suffers a fundamental flaw which goes to the root of the jurisdiction of the Court to entertain or adjudicate on the suit.
The importance of service of hearing notice in adjudication cannot be over-emphasized. It ignites as well as drains the Court of its jurisdiction to entertain a matter. The position of the Courts on the importance of service of hearing notices on a party in a suit and how same is inexorably intertwined with the jurisdiction of the Court has been reiterated in numerous cases. The Supreme Court in the case of NUT Taraba State & Ors v Habu & Ors 2018) LPELR-44057 (SC) stated the principle of law as follows:
“Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void”
See also the case of Agu v CBN (2016) LPELR -41091 (CA) wherein this Court held that:
“Thus as important and fundamental as the service of Originating processes are, so are hearing notices which are meant to intimate parties of the hearing date and the want of service would also strip the Court of the jurisdiction to entertain and determine the case since the party not served has also been deprived of his right to fair hearing as encapsulated in the maxim audi alteram partem and as entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). PER UMAR, J.C.A.

WHETHER OR NOT AN ABSENT PARTY IS ENTITLED TO BE ISSUED AND SERVED WITH A HEARING NOTICE OF THE DATE OF DELIVERY OF JUDGEMENT

In this connection, it must be emphasized that such an absent party is equally entitled to be issued and served with a hearing notice of the date of the delivery of the judgement because it is a constitutive part of the hearing of the action, Okoye v N.C and F.C Ltd (1991) 6 NWLR (Pt. 199) 501: Akoh v Abuh (1988) 3 NWLR (Pt. 85) 696; C.A. F.S. Ltd v Mallah (1998) 10 NWLR (Pt. 569) 16; Okafor v A.G; Anambra State and Ors (1991) LPELR-SC.264/1988, 27-28, (1999) 6 NWLR (Pt. 200) 659; John A.S.C Ltd v Mfon (2007) 4 WRN 173, 188-189; Dawodu v Ologundudu and Ors (1986) 4 NWLR (Pt. 33)0 104. The consequence is that where such a process is not served, the entire proceedings would be vitiated. it would be immaterial that it was well-conducted, Habib Nig. Bank Ltd v Opomulero and Ors (2000) 15 NWLR (Pt. 690) 315; Sken Consult Nig Ltd v Ukey (1981) 1 SC 6; Mbadinju and Ors v Ezuka and Ors (1994) 10 SCNJ 109; (1994) 8 NWLR (Pt. 364) 535; Folorunso v Shaloub (1994) 3 NWLR (PT. 333) 413. This prescription is premised on the radical nature of the right enshrined both in the common law principle of audi altarem partem.”
The decision of the Supreme Court in the case of Achuzia v Ogbomah (2016) LPELR-40050 SC is also apt. The apex Court held that:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous adjourned date. Whenever proceedings in a case or matter resumes and a party or his counsel is absent, the Court must ascertain whether or not the party absent was aware that the case was coming up on that resumed sitting day. It is not a matter of assumption. Rather, it must be inquired into in open Court and if it became apparent that the party absent was not notified of that day, the Court must adjourn the matter for him/it to appear. Failure to serve a hearing notice of date for hearing of a case on a party runs riot and violent to the principle of fair hearing as enshrined in the 1999 Constitution and any proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings is a nullity and therefore must be annulled.” PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Enugu (“the lower Court” or “the trial Court”) delivered on the 4th day of March, 2014, Coram E. C. N Onyia J. in Suit No: E/183/2008. The lower Court entered Judgment and awarded monetary compensation to the Respondent in the sum of N200, 000, 000 (Two Hundred Million Naira) on the basis that the tort of libel had been proved by the Respondent against the Appellant.

The Respondent as Plaintiff commenced the action by a Writ of Summons dated 28th May 2008 against the Appellant and two others. The reliefs sought by the Respondent as endorsed on the Writ of Summons and replicated in the Statement of Claim are as follows:
“1. The Plaintiff claims against the Defendants jointly and severally the sum of ₦250, 000, 000 (Two Hundred and Fifty Million Naira only) being damages for libel written, printed and published by the Defendants of an (sic) concerning the Plaintiff in Newspaper” DAILY INDEPENDENT” of 1st day of February, 2008 at back page particulars of which are set out

in the Statement of Claim
2. The sum of N250, 000, 000 (Two Hundred and Fifty Million Naira only) from the 1st, 2nd and 3rd Defendants as aggravated/Exemplary damages, because they published the said words knowing them to be false or with reckless disregard as to whether the words were libelous of the Plaintiff, the profit to be realized from the said publication being of more concern to them.
3. An order of perpetual injunction restraining the Defendants by themselves, heir, directors, servants, agents or otherwise from further or causing to be printed, published or distributed the said article and/or letter containing the words set out in paragraph 4 of the Statement of claim or any similar words defamatory of the Plaintiff.”

In response to the originating processes filed by the Respondent, the Appellant and two others sued as Defendants filed a Joint Statement of Defence dated 17th June, 2009.

BRIEF FACTS OF THE CASE
The summary of the facts as extrapolated from the pleadings filed by the Respondent is that by a publication made by the Appellant on 1st February, 2008 in the Daily Independent Newspaper, the Respondent was

referred to as “The face of a crook”.

The Respondent contended that the publication made by the Appellant in the Daily Independent Newspaper was false, malicious and libelous and not a correct report of the proceedings of the Supreme Court in Suit No: SC/123/2007 between MR. PETER OBI v INEC & 7 ORS. The Respondent alleged that the words published in the Daily Independent Newspaper of 1st February, 2008 were defamatory of the Respondent; and same has exposed the Respondent to public odium, contempt and occasioned injury to the reputation of the Respondent.

The Appellant in response to the claims of the Respondent contended that the publication made on the Respondent in the Daily Independent Newspaper of 1st February, 2008 was a correct report of the proceedings of the Supreme Court on 29th January, 2008 in Suit No: SC/123/2007.

The trial in the suit commenced on 30th May, 2013 and was concluded on 11th July, 2013. The Respondent’s Final Address was adopted on 10th October, 2013. The Appellant was neither represented nor present in Court all through the trial and adoption of addresses.

On the 4th day of March 2014, the

learned trial Judge delivered its Judgment at page 123 and 127 in favour of the Respondent in the following terms:
“…The only evidence available to me to adjudicate on was that of the Plaintiff and his witness alone; and once the evidence is cogent and credible, I have no option but to rely on it and base my findings thereon… In the instant case, the Plaintiff has proved his case. His case is libel, and once libel is proved, damages are presumed. There is no need to prove actual damage.”

The Appellant being dissatisfied with the Judgment initiated this appeal vide a two ground Notice of Appeal dated 27 May 2014 which was amended pursuant to the order of this Court and replaced with an Amended Notice of Appeal dated 06 May 2019. The grounds of appeal as contained in the Amended Notice of Appeal bereft of its particulars are as follows:
“GROUND ONE:
The learned trial Judge erred in law when he proceeded to conduct proceedings without service of hearing notices on the Appellant thereby breaching the Appellant/Defendant’s fundamental right to fair hearing as guaranteed by the 1999 Constitution.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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GROUND TWO:
The learned trial Judge erred in law when he delivered his Judgment later (sic) 90 days from the date of conclusion of evidence and final address thereby occasioning a miscarriage of Justice.
GROUND THREE:
The learned trial Judge erred in law when he proceeded to assume jurisdiction to hear proceedings at the lower Court on a writ of summons meant for service outside the Jurisdiction of the lower Court issued and served on the Appellant (whose principal place of business is outside the jurisdiction) without the leave of the Court.
GROUND FOUR:
The learned trial Judge erred in law when he failed to recognize and give probative value to the certified true copy of the Vanguard Newspaper publication of the 13th February, 2008 attached to the Appellant’s pleadings at the lower Court.
GROUND FIVE:
The learned trial Judge erred in law when he relied upon Exhibit 1 (Daily Independent Newspaper) of 1st February, 2008, tendered by the Respondent in support of his Judgment.
GROUND SIX:
The learned trail (sic) Judge erred in law when he proceeded to award the sum of N200, 000, 000.00 (Two Hundred

Million Naira) against the Appellant.”

The Appellant filed its brief of argument on 14th May, 2019 pursuant to the order of Court made on 30th April, 2019. The Appellant’s Brief of Argument was settled by TOCHUKWU ONYIUKE ESQ. and the following issues were distilled for determination:
“1. Whether considering the issuance and service of the originating processes (writ of summons), manner of service of all Court processes including the hearing notices, the lower Court had the jurisdiction to have heard and delivered Judgment in (sic) suit.
2. Whether the Judgment of the lower Court is not liable to be set aside same having occasioned a miscarriage of Justice.
3. Whether considering the Appellant’s pleadings and documents attached thereto at the Court below and the non participation of the Appellant in the proceedings, the defense of qualified privilege, fair comments and justification do not avail the Appellant.
4. Whether considering the provisions of the Evidence Act, 2011, the lower Court was right when it admitted Exhibit 1, Independent Newspaper publication of 1st February, 2008.
5. Whether the lower Court

was right when it awarded the sum of N200, 000, 000.00 (Two Hundred Million Naira) against the Appellant as general damages.”

The Respondent in his personal capacity filed a Respondent Brief of Argument dated 15th May, 2019. The following issues were formulated therein:
“1. Whether in the circumstances of this case, the abandonment of Motion filed on 10/2/2009, reply on points of law filed on 17/6/2019, unconditional memorandum of appearance, Joint Statement of Defence for the 1st, 2nd and 3rd Defendants, and subsequently by a motion sought discretionary reliefs from the trial Court. All these does not constitute submission to the trial Court’s jurisdiction?
2. Whether the Appellant that failed to give evidence in support of their Statement of Defence; and never cross examined the Respondent’s witness can validly take refuge under Section 294 (1) of the 1999 Constitution (as amended) without discharging the duty cast upon it of establishing that such alleged failure occasioned it miscarriage of Justice, and must establish the prejudice to it for failure by the trial Court of non-compliance with the provision in sub-section (1) of Section 294?

Whether the Court of Appeal has jurisdiction to determine the merits of the Appellant’s Statement of Defence and documents attached thereto at the Court below which was never pronounced upon by the trial Court?
4. Whether the Appellant who failed to appear at the trial court to object to the admissibility of Exhibit 1, Independent Newspaper Publication of 1st February 2008 can be heard on appeal to complain against its use by the trial court
5. Whether the sum of N200, 000, 000 (Two Hundred Million Naira) awarded against the Appellant in a case where the evidence in support is unchallenged is not to the effect that the burden on the Respondent is discharged upon minimum of proof.”

The learned Counsel to the Appellant filed a Reply Brief on 8th July, 2019 in response to the Respondent’s Brief of Argument.

The respective briefs of argument of the Appellant and the Respondent was argued and adopted on the 4th day of June, 2020. I have given due consideration to the respective issues distilled by the parties and before going any further I must comment the manner the issues of determination were

formulated in the Respondent’s Brief of Argument.

The dexterity required in formulating issues of determination which will aid the Court in identifying and exhaustively determining the dispute between the parties was visibly absent in the issues formulated by the Respondent.

In my respective view, the issues for determination of this appeal which emanate from the Amended Notice of Appeal and the issues distilled in the Appellant’s Brief of Argument are all encompassing in determining this appeal as follows:
1. Whether the issuance and service of the writ of summons on the Appellant was valid to confer Jurisdiction on the lower Court to adjudicate on the suit?
2. Whether hearing notices were properly issued and served on the Appellant to confer jurisdiction on the lower Court to determine the dispute between the parties?
3. Whether the Judgment of the lower Court occasioned a miscarriage of justice having being delivered ninety days after the adoption of Final Address?
4. Whether the failure of the lower Court to consider and give probative value to a certified copy of a newspaper publication annexed to the

Appellant’s pleadings is proper?
5. Whether the reliance of the lower Court on Exhibit 1 (Daily Independent Newspaper) tendered by the Respondent is valid?
6. Whether the lower Court rightly awarded the sum of N200, 000, 000 (Two Hundred Million Naira) as general damages against the Appellant.

ISSUE ONE
“Whether the issuance and service of the writ of summons on the Appellant was valid to confer Jurisdiction on the lower Court to adjudicate on the suit?

APPELLANT’S ARGUMENT
The learned Counsel to the Appellant submitted that the issue of jurisdiction is important in adjudication as same is the lifeblood of any adjudication. The cases of Lado v CPC (2011) 18 NWLR (Pt. 1279) p. 689, Katto v CBN (1991) 22 NSCC (Pt. 1) at 751 were cited and relied on to buttress the submission. It was argued on behalf of the Appellant that where a Court purports to exercise jurisdiction which it lacks, the proceedings before it and the Judgment will amount to a nullity. Reliance was placed on the cases of G & T Investment Limited v Witt & Bush Limited (2011) 8 NWLR (Pt. 1250) 500, Araka v Ejeagwu (2000) 15 NWLR (Pt. 692) p.

684 and the case of Sode v AG Federation (2006) 17 NWLR (Pt. 1009) p. 503.

The Appellant’s counsel contended that the issuance of the writ of summons outside the jurisdiction without obtention of leave of Court is improper. It was argued on behalf of the Appellant that a party who is desirous of issuing a writ for service outside jurisdiction of the Court is expected to file an ex-parte application seeking leave to issue the said writ; and it is consequent upon obtaining said order that the writ can be issued. The case of Touton S.A v G.C.D.N.Z S.P.A (2011) 4 NWLR (Pt. 1236) 1 was cited.

The Appellant’s counsel argued further that the apex Court has held that any writ of summons meant for service outside the jurisdiction of the Court which is issued before or without leave is null and void. The cases of Adegoke Motors Limited v Adesanya (1989) 3 NWLR (Pt. 109) 250 and Nwabueze v Okoye (1988) 4 NWLR (Pt. 91) p. 664 were relied on.

The learned Counsel to the Appellant submitted that the failure of the Respondent to seek leave of Court before issuing the writ of summons rendered the entire proceedings a nullity. He submitted further

that where a writ is not properly issued, it is not a mere irregularity but an issue which affects the jurisdiction of the Court.

The Appellant’s counsel consequently urged this Court to hold that the proceedings at the lower Court were a nullity having being initiated without leave of Court. The decision of this Court in N.U.B Limited v Samba Pet. Co. Limited (2006) 12 NWLR (Pt. 993) 98 was cited and relied on.

RESPONDENT’S ARGUMENT
The Respondent submitted that having taken steps several steps to defend its interest in the action, the Appellant had submitted to the jurisdiction of the lower Court. The Respondent contended that the Appellant had filed an Unconditional Memorandum of Appearance, Statement of Defence as well as a Motion dated 10 February 2019 seeking discretionary reliefs; and therefore cannot be heard challenging the jurisdiction of the lower Court. The case of Guinness Nig. Plc v Ufot (2008) 2 NWLR (Pt. 1070) p. 52 was cited and relied on.

It is the Respondent’s argument that the Appellant had taken part in the proceedings before the lower Court by filing its pleadings, applications and opposing

applications filed by the Respondent; hence he is deemed to have acquiesced to the jurisdiction of the Court. The case of P.W.T.H AG v Ceddi Corp. Ltd (2012) 2 NWLR (Pt. 1285) p. 465 was cited by the Appellant. The Respondent submitted further that the failure of the Appellant to impugn the jurisdiction of the lower Court at the earliest possible time constitutes a waiver. This submission was buttressed with the decision inAmanchukwu v FRN (2007) 6 NWLR (Pt. 1029) p.1.

The Respondent cited the authority of Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt.109) 250 to aid his submission that if a writ is not properly endorsed as required by the Sheriffs and Civil Process Act, such writ must be properly tendered and made exhibit in the case to enable the Appellate Court properly make reference to it. The case of Adegoke Motors Ltd v Adesanya (Supra) was also relied on by the Respondent to support the argument that filing of a Memorandum of Appearance constitutes a waiver of any irregularity and submission to the jurisdiction of the Court.

APPELLANT’S REPLY
The learned Counsel to the Appellant submitted that the issue of jurisdiction can be

raised at any time even at the Supreme Court. The cases of Ibrahim v Lawal (2015) 7 NWLR (Pt. 1489) p. 490 at 524 and Elugbe v Enterprises Limited v Leventis Technical Company (2004) 18 NWLR (Pt. 905) p. 319 was relied in support of the submission.

It was argued on behalf of the Appellant that the abandonment of the Motion filed by the Appellant at the lower court challenging the jurisdiction of the trial court to entertain the suit does not strip the Appellant of the right to raise same issue on appeal. The Appellant’s counsel submitted that the case of Guinness Nig. Plc v Ufot (2008) 2 NWLR (Pt. 1070) p. 52 cited in the Respondent’s Brief is inapplicable to the facts of this case.

Counsel to the Appellant submitted that there is a distinction between a challenge to a procedural irregularity and a challenge to the jurisdiction of the Court. It is the contention of the Appellant’s counsel that while the issue of a procedural irregularity must be raised at the earliest possible time, the issue of jurisdiction can be raised at any time of the proceedings even at the Supreme Court. The Appellant’s counsel argued that the issue of

non-service of hearing notices on the Appellant and failure to seek leave of Court before issuance of the writ of summons in this suit are jurisdictional issues.

RESOLUTION OF ISSUE ONE
I agree with the Appellant’s contention that the issue of jurisdiction is intrinsic to the adjudicatory process and where a Court purports to exercise jurisdiction which it lacks, the proceedings before it and the Judgment will amount to a nullity.

The grievance of the Appellant as can be extrapolated from the submissions in the Appellant’s Brief of Argument is that the lower Court lacked the jurisdiction to entertain the suit in view of the defective issuance and service of the originating processes. The Appellant has submitted that proceedings and the Judgment at the lower Court ought to be set aside on the grounds that leave of Court was not obtained before the issuance of the Writ of Summons.
I have considered the judicial authorities relied on by the Appellant to support its argument viz-a-viz the provisions of the Sheriff and Civil Process Act and the Enugu State High Court (Civil Procedure) Rules 2006 which governs the commencement of

action in Enugu State; and it is my respective view that the judicial authorities cited by the Appellant are inapposite to the facts of this case. The cases relied on by the Appellant are clearly distinct and distinguishable from the facts of this case. In the case of Touton S.A v G.C.D.N.Z S.P.A (2011) 4 NWLR (Pt. 1236) 1 relied on by the Appellant, the issues in contention were non-compliance with Section 99 of the Sheriffs and Civil Process Act and Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000. This Court interpreted Section 99 of the Sheriffs and Civil Process Act and held that a writ of summons to be served on a Defendant outside the jurisdiction of a Court must afford the said Defendant thirty days to enable him prepare and enter appearance. In the instant case, the writ of summons issued by the Respondent which is at page 1 of the records states:
“You are hereby commanded that within forty-two days after the service of this writ on you, inclusive of the day of such service you do cause an appearance to be entered for you in an action at the suit Mr. Ifeanyichukwu Okonkwo (Plaintiff) and take note that in default of

your so doing, the Plaintiff may proceed therein, and Judgment may be given in your absence.”
The number of days required for the Appellant to enter appearance as contained in the writ of summons issued in the case is more than sufficient than the days stipulated in the Sheriffs and Civil Process Act. The writ of summons filed by the Respondent does not therefore contravene Section 99 of the Sheriff and Civil Process Act.
Now, the provisions of Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000 interpreted by the Court of Appeal mandates that leave must be obtained from Court before a writ which is to served outside jurisdiction of the Court is issued. I have thoroughly examined the provisions of Enugu State High Court (Civil Procedure) Rules 2006 and there is no such requirement under the said rules. The provision of Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 is not applicable to this suit; leave of Court is not required for the issuance of the writ of summons served on the Appellant outside the jurisdiction of the High Court of Enugu State.
The Appellant also relied

Adegoke Motors Limited v Adesanya (1989) 3 NWLR (Pt. 109) 250. The Supreme Court in Adegoke Motors Limited v Adesanya (Supra) considered the non-compliance with the provisions of Sections 97 and 99 of the Sheriff and Civil Process Act.
I have held earlier in this Judgment that the writ issued in this case was in compliance with the provisions of Section 99 of the Sheriff and Civil Process Act. I have also scrutinized the writ of summons filed in this case and I see that there was compliance with Section 97 of the Sheriff and Civil Process Act. It is clearly endorsed on the writ that it is to be served outside Jurisdiction and at Lagos State.
The focal point in the Appellant’s Brief on this issue is that leave was not sought and obtained by the Respondent before issuing the writ of summons served on the Appellant outside jurisdiction of the High Court of Enugu State. I must state emphatically that there is no provision in the Enugu State High Court (Civil Procedure) Rules 2006 or the Sheriff and Civil Process Act mandating parties to obtain leave of Court before issuance of an originating process to be served outside Enugu State. Consequent upon the foregoing,

the originating process issued without leave of Court by the Respondent is valid and was properly issued to confer jurisdiction of the Court. I resolve this issue in favour of the Respondent and against the Appellant.

ISSUE TWO
“Whether hearing notices were properly issued and served on the Appellant to confer jurisdiction on the lower court to determine the dispute between the parties?”

APPELLANT’S ARGUMENT
The learned Counsel to the Appellant submitted that the Appellant was not served with hearing notice notifying it of the proceedings of 30th May, 2013 when the trial in the suit commenced. Counsel contended that the address of the Appellant’s Counsel as indicated on the Joint Statement of Defence filed by the Appellant is: Close 22 Edinburgh Road Ogui New Layout, Enugu whereas the hearing notice purportedly served on the Appellant bears the address: No. 5, Plot 70, Wempco Road, Ogba, Lagos.

It was argued on behalf of the Appellant that there was no name, signature or anything on the face of the hearing notice evincing the fact that it was received by the Appellant. The Appellants’ counsel challenged the

affidavit of service deposed to by the bailiff of the lower Court on the ground that the said recipient of the hearing notice as contained in the affidavit of service – Sandra Johnson did not indicate her name or signature on any document acknowledging receipt of the hearing notice. The cases of UBA Plc v Ubokulo (2010) 13 NWLR (Pt. 1210) p. 67 and Kennedy v INEC (2009) 1 NWLR (Pt. 1123) p. 614 at p. 639 were relied on to buttress the submission that the deposition in an affidavit is not conclusive proof of the facts contained therein.

The Counsel to the Appellant submitted that no hearing notice was served on the Appellant and the lower Court should not have assumed jurisdiction to hear the matter when the Appellant had not been served with hearing notice. This submission was supported with the cases of Okon v Adigwe (2011) 15 NWLR (Pt. 1270) 350 at page 371, paras. G-H and the case of Nitel Plc v ICIC (Directory Publishers) Limited (2009) 16 NWLR (Pt. 1167) 356 at 386 where it was held that the requirement of putting the other party on notice underscores a party’s right to be heard or given an opportunity to be heard.

It was argued on behalf

of the Appellant that the lower Court did not satisfy itself that there was compliance with the hearing notice ordered by the Court on 2nd May, 2013 before it continued proceedings on 30th May, 2013. The Appellant’s counsel argued that the lower Court failed to comply with the procedure upheld by this Court in Okon v Adigwe (supra) that where a Court adjourns a case beyond a date when the litigants have notice of hearing, Court must satisfy itself that there is compliance to the further service ordered. The learned Counsel to the Appellant submitted that no hearing notices were ordered by the lower Court or issued on the Appellant for proceedings of 20 June 2013, 11 July 2013, 10 October 2013 and 11 December 2013. The Appellant’s counsel urged this Court to hold that the proceedings of the lower Court are a nullity having been conducted without service of hearing notice on the Appellant. The cases of New Nigerian Newspapers v Otteh (1992) 4 NWLR (Pt. 237) 625, Tsokwa Motors Nigeria Limited v UBA Plc (2008) 2 NWLR (Pt. 1071) p. 347 were commended to the Court.

The Appellant’s counsel placing reliance on Okoye v CPMB Limited (2008) 15

NWLR (Pt. 1110) p. 335 also urged the Court to set aside the Judgment of the lower court on the ground that same was obtained in the absence of the other party in the suit.

RESPONDENT’S ARGUMENT
The Respondent submitted that the Appellant as 3rd Defendant was served with a hearing notice dated 13th day of May, 2013 on 22 May 2013. He submitted further that the learned trial Judge made specific finding that hearing notice was served on the Appellant and this finding was not challenged in the Notice of Appeal filed by the Appellant.

The Respondent contended on the authority of Allwell Aohajunwa & Ors v Chief S. Obelle & Ors (2008) 3 NWLR (Pt. 1073) 52 that specific finding made by the trial Court must be challenged by a specific ground of appeal before same can be determined on appeal. The Respondent submitted that the Appellant did not challenge the pronouncement of the learned trial Judge that hearing notices were served on the Appellant.

APPELLANT’S REPLY
The learned Counsel to the Appellant contended that the issues 1, 2, 3 and 4 formulated in the Respondent’s Brief of Argument are alien to the issues

formulated in the Appellant’s Brief of Argument and the grounds of appeal. It was contended further that the said issues are incompetent and liable to be struck out. The cases of Esekhaigbe v FRSC (2015) 12 NWLR (Pt. 1474) p.520 and COP Adamawa State v Saratu (2015) 3 NWLR (Pt. 1446) p. 276 were cited and relied on to buttress the Appellant’s argument.

RESOLUTION OF ISSUE TWO
As set out, it is imperative to resolve the contention of the Appellant that the issues of determination formulated by the Respondent are incompetent and liable to be struck out. I had earlier in this judgment observed the way and manner in which the issues for determination formulated by the Respondent and how same are capable of obscuring the real issues before the Court.
However, in order to ensure justice is not only done but seen to have been done, the Court will not strike out the issues formulated in the Respondent’s Brief of Argument but painstakingly sift the relevant submission and argument in resolving the contentious issues between the parties. See the case of Dakolo & Ors v Dakolo & Ors (2011) LPELR-915 (SC) where the Supreme Court held

that the Court will always make the best that it can, out of a bad or inelegant ground or brief in the interest of justice. The Appellant’s submission on the incompetence of the issues or argument in the Respondent’s Brief of Argument is hereby discountenanced.

Now to the substantive issue, the Appellant has challenged the jurisdiction of the lower Court to adjudicate and determine on the suit on the grounds that the relevant hearing notices were not issued and served on the Appellant. The pertinent question is whether hearing notices were properly served on the Appellant to confer jurisdiction on the lower Court.
The Respondent on his part submitted that the Appellant was served with hearing notices and the learned trial Judge upheld this fact in his Judgment. I have gone through the records to decipher the true position as to the service or non-service of hearing notice on the Appellant. The records reveal that during the proceedings of 2nd of May 2013, the learned trial Judge ordered hearing notices to be issued and served on the Appellant as well as the other Defendants at the lower Court. The purport of the hearing notice was to

notify the Appellant of the commencement of trial which was to commence on 30th of May 2013.
It is deductible from the records that a hearing notice dated 13 May 2013 was issued to the Appellant; while an affidavit of service dated 22 May 2013 was filed evincing the service of the hearing notice on the Appellant. I am inclined to agree with the submission of the Respondent that the Appellant was served with hearing notice notifying it of the proceedings of 30 May 2013.
The Appellant has challenged the affidavit of service deposed to by the officer of Court in its Brief of Argument. However, the law is settled by a long list of authorities that mere argument or submission by a party without more does not invalidate the facts contained in an affidavit of service. An affidavit of service of a Court’s processes by the bailiff or other officer of the Court empowered to do so, is prima facie evidence of the service of the processes and the burden is on the party who disputes such service to rebut the presumption of such service is by filing a counter-affidavit to the affidavit of service. See the case of Uko v Ekpenyong (2006)5 NWLR (PT.972)70.

In Fatokun v Somade (2003) 1 NWLR (Pt. 802) 431, the Court held that:
“where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of the Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter affidavit to controvert the affidavit of service. The failure by the Appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him.”
The material depositions in the affidavit of service dated 22nd May, 2013 by the Court bailiff which has not been controverted by the Appellant constitutes conclusive proof that the hearing notice dated 13th May, 2013 was indeed served on the Appellant at its place of business at Block 5, Wempco Road, Ogba, Lagos. It is trite law that facts deposed in an affidavit which are not controverted or challenged by a counter affidavit are deemed to be duly admitted. See Best Vision Cont. Ltd v. UAC N.P.D.C. Plc (2003) 13 NWLR (pt. 838) 594. I hold the

respective view that the Appellant was served with the hearing notice dated 13th May, 2013.
Trial in the suit commenced on 30th May, 2013 with the Respondent calling his first witness. In view of the absence of the Appellant and the other Defendants, the suit was adjourned by the learned trial Judge to 20th June, 2013 for the cross examination of PW1. At the proceedings of 20th June, 2013 PW1 who was to be cross examined but discharged by the learned trial Judge in the absence of the Appellant and his counsel. The suit was subsequently adjourned to 11th July, 2013 for the evidence of the Respondent himself as PW2. The Respondent adduced evidence in chief and the learned trial Judge adjourned the suit for cross examination of the Respondent/Adoption of Written Address. On October 10th 2013, the Respondent adopted his Final Address and the suit was subsequently adjourned to 11th December, 2013.
I have painstakingly considered and chronicled the proceedings at the lower Court to determine if the lower Court had the requisite jurisdiction to adjudicate on the suit when the Appellant was absent and not represented in the proceedings of the lower Court

which took place on 20th June 2013, 11th July 2013, 10th October 2013 and 04 March 2014. Jurisdiction is of utmost importance to our adjudication process as it touches the very foundation of a case. Our rules of practice are unequivocal that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the Supreme Court. See the case of Drexel Energy & National Resources Ltd & Ors v Trans International Bank Ltd & Ors (2008) 12 SC (Pt II) p.240.
The issue of service of a Court process is an intrinsic aspect of our procedural law. It is a condition precedent to the competency of Court in assuming jurisdiction and adjudicating over the legal rights of litigants. Thus, any matter or proceedings affected by lapse in the service of a process suffers a fundamental flaw which goes to the root of the jurisdiction of the Court to entertain or adjudicate on the suit.
The importance of service of hearing notice in adjudication cannot be over-emphasized. It ignites as well as drains the Court of its jurisdiction to entertain a matter. The position of the Courts on the importance of service of

hearing notices on a party in a suit and how same is inexorably intertwined with the jurisdiction of the Court has been reiterated in numerous cases. The Supreme Court in the case of NUT Taraba State & Ors v Habu & Ors 2018) LPELR-44057 (SC) stated the principle of law as follows:
“Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void”
See also the case of Agu v CBN (2016) LPELR -41091 (CA) wherein this Court held that:
“Thus as important and fundamental as the service of Originating processes are, so are hearing notices which are meant to intimate parties of the hearing date and the want of service would also strip the Court of the jurisdiction to entertain and determine the case since the party not served has also been deprived of his right to fair

hearing as encapsulated in the maxim audi alteram partem and as entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
In this wise the Courts have held that when a matter comes up before a trial Court as in our instant case, it is duty bound to fully satisfy itself, that all parties to the case have been served with the Court process at one stage and that they are aware of the hearing or trial date. See Agena V. Katseen (1998) 3 NWLR (Pt.543) 560, Mbadinuju V. Ezuka (1994) 10 SCNJ 109; where it was held variously that the failure to notify the parties of the date of hearing of the matter renders the proceedings null and void for want of Jurisdiction of the Court to entertain same.”
Having established the significance of hearing notice to the jurisdiction of the Court, the poser is whether the hearing notices were served on the Appellant and the consequential effect on the jurisdiction of the lower Court. I have ruled in the earlier part of the Judgment that the Appellant was served a hearing notice dated 13th May 2013 on 22nd May, 2013 to notify the Appellant of the proceedings of 30th May,

The Appellant was absent at the proceedings of 30th May, 2013 and subsequent proceedings until Judgment was delivered in the suit.
I have again carefully considered the records of the Court and I do not see any hearing notice or proof of service of any other hearing notice on the Appellant asides the Affidavit of service dated 22nd May, 2013. There was also no order or directive made by the learned trial Judge that hearing notice be issued and served on the Appellant.
I hold the respective view that after the proceedings of 30 May 2013 which the Defendant was notified of and was absent in Court, the lower Court ought to have directed fresh issuance and service of hearing notice on the Appellant in respect of the new adjourned date in the suit. It is the law that, where a Court adjourns a case beyond a date which the litigants have notice of the hearing, the Court has a duty to notify the parties of the subsequent adjourned date. See A.G.; Rivers State v Ude (2006) 17 NWLR (pt. 1008) p. 436; Omabuma v Owhofatso (2006) 5 NWLR (Pt.972) p.40.
On 20th June, 2013 when PW1 was to be cross examined and the Appellant was absent in Court, the Court

had a duty to issue hearing notice on the Appellant for the new date for the continuation of trial. The Respondent testified as PW2 on 11th July, 2013 and at the conclusion of the proceedings, the learned trial Judge adjourned proceedings for cross examination/adoption of final address thereby effectively foreclosing the Appellant from presenting his defence in the suit. Again, no hearing notice was served on the Appellant.
The learned trial Judge was in error when all through the trial, it failed to notify or ensure service of hearing notices on the Appellant even till the date Judgment was entered in favour of the Respondent. The Supreme Court per Nweze JSC in the case of Darma v Eco Bank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480 at 511 paras A-D held that:
“By way of preliminary observations, it is indeed, correct to assert that hearing notice is the only means of getting a party to appear in Court, Onwuka v Owolewa (2001) 28 WRN 89: (2001) 7 NWLR (Pt. 713) 695. Thus, the issuance of a hearing notice from day to day on the absent party is imperative, Onwuka v Owolewa (supra); Fetuga v Barclays Bank D.C.O. (1971) 1 All NLR 28. In this connection, it

must be emphasized that such an absent party is equally entitled to be issued and served with a hearing notice of the date of the delivery of the judgement because it is a constitutive part of the hearing of the action, Okoye v N.C and F.C Ltd (1991) 6 NWLR (Pt. 199) 501: Akoh v Abuh (1988) 3 NWLR (Pt. 85) 696; C.A. F.S. Ltd v Mallah (1998) 10 NWLR (Pt. 569) 16; Okafor v A.G; Anambra State and Ors (1991) LPELR-SC.264/1988, 27-28, (1999) 6 NWLR (Pt. 200) 659; John A.S.C Ltd v Mfon (2007) 4 WRN 173, 188-189; Dawodu v Ologundudu and Ors (1986) 4 NWLR (Pt. 33)0 104. The consequence is that where such a process is not served, the entire proceedings would be vitiated. it would be immaterial that it was well-conducted, Habib Nig. Bank Ltd v Opomulero and Ors (2000) 15 NWLR (Pt. 690) 315; Sken Consult Nig Ltd v Ukey (1981) 1 SC 6; Mbadinju and Ors v Ezuka and Ors (1994) 10 SCNJ 109; (1994) 8 NWLR (Pt. 364) 535; Folorunso v Shaloub (1994) 3 NWLR (PT. 333) 413. This prescription is premised on the radical nature of the right enshrined both in the common law principle of audi altarem partem.”
The decision of the Supreme Court in the case of Achuzia v Ogbomah

(2016) LPELR-40050 SC is also apt. The apex Court held that:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous adjourned date. Whenever proceedings in a case or matter resumes and a party or his counsel is absent, the Court must ascertain whether or not the party absent was aware that the case was coming up on that resumed sitting day. It is not a matter of assumption. Rather, it must be inquired into in open Court and if it became apparent that the party absent was not notified of that day, the Court must adjourn the matter for him/it to appear. Failure to serve a hearing notice of date for hearing of a case on a party runs riot and violent to the principle of fair hearing as enshrined in the 1999 Constitution and any proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings is a nullity and therefore must be annulled.”
It is reasonable that the learned trial Judge might have been exasperated by the tardiness of the Appellant who after

filing its pleadings and several applications failed to appear in Court or take steps to diligently pursue its defence in the action, however the learned trial Judge ought to have been guided by the admonition of the Court of Appeal in Dawodu & Anor V. Ologundudu & ORS (1986) LPELR-21146(CA) wherein it was held that:
“…The learned Judge obviously acted out of exasperation for the constant adjournments of the proceedings. Having regard to the constant out-cry against delays in the trial of cases and the consequent congestion of our Courts, this is understandable. But, in showing his disapproval of the situation, he should have done well to remember that certain features of our adversary system of administration of justice carry with them some implications of inevitable delay. The audi alteram partem rule (which, together with the rule nemo judex in sua causa form the twin pillars upon which fair hearing is based), carries with it the need to give to all the parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by one’s adversaries…In my opinion, in the circumstances that arose in

this case the learned Judge had the duty to balance the need for speedy trial with the dictates of fair hearing guaranteed by our Constitution and inherent in our system of administration of justice. It was a grave error to have sacrificed those features on the altar of speed.”
It is against this background and on the authorities cited by the learned Counsel for the Appellant that I hold that notwithstanding the fact that the Appellant may have deliberately abandoned its case, the non-service of hearing notice on the Appellant occasioned a breach to its right to fair hearing and in consequence, the Court below had no jurisdiction to adjudicate and determine the suit.
Accordingly, no matter how right the Judgment of the learned Trial Court delivered on 4th March, 2014 may be, it is liable to be set aside. Having resolved this issue in favour of the Appellant, the only available remedy is to set aside the judgment of the Court below delivered on the 4th March, 2014. The judgment having been declared a nullity, the other issues for determination in this appeal have been rendered academic and I will not delve into same.

On the whole therefore, it is my view and I do hold that this appeal has merit. It is accordingly allowed. The Judgment of the Trial Court delivered on 4/3/2014 is hereby set aside. Consequently, I order that Suit E/183/08 be remitted to the Chief Judge of Enugu State to be heard de novo by a Judge of the Enugu State High Court except Hon. Justice E.C.N Onyia who heard this case earlier. I also make an order for accelerated hearing of the matter at the Court below.
No order as to cost.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal has merit and is hereby allowed. I abide by the consequential orders made therein.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal is meritorious and it is accordingly allowed.
I adopt the consequential

orders in the lead judgment as mine.

Appearances:

TOCHUKWU ONYIUKE ESQ. For Appellant(s)

IFEANYICHUKWU OKONKWO, the Respondent in person. For Respondent(s)