ARARAUME v. YPP & ORS
(2021)LCN/15187(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Wednesday, April 21, 2021
CA/OW/EPT/SEN/04/2021
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
SENATOR IFEANYI GODWIN ARARAUME APPELANT(S)
And
1. YOUNG PROGRESSIVES PARTY (YPP) 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. CHUKWUMA FRANCIS IBEZIM RESPONDENT(S)
RATIO
WHETHER A COURT CAN LOOK INTO ITS FILE SUO MOTU, AND MAKE USE OF ANY DOCUMENT WHICH IS RELEVANT TO THE ISSUE ARISING FOR DETERMINATION
A Court is entitled to look at its file suo motu, and make use of any document which is relevant to the issue arising for determination, whilst writing its Judgment or Ruling. This includes record of daily proceedings, processes filed and even administrative endorsements or actions of the registry staff in respect of the case. See GABRIEL SUSWAM VS. F.R.N & ANR. (2020) LPELR – 49524 (CA) AND FUMUDOH VS ABORO (1991) 9 NWLR (PT. 214) 210 AT 229. PER ABUBAKAR DATTI YAHAYA, J.C.A.
WHETHER A PARTY WHO WAS SERVED THROUGH SUBSTITUTED SERVICE, ORDERED BY A COURT OF LAW, CAN CLAIM HE HAS NO KNOWLEDGE OF THE PROCESS SERVED
It must be emphasised that when substituted service is ordered by a Court and it is effected, then there is proper service on that party. It is immaterial, that the party did not actually have knowledge of it. In DICKSON VS OKOI & ORS (2002) LPELR -10335 CA, Edozie JCA at page 12 held that “Where, in accordance with the rules of Court, an order for substituted service is made and service is made and service is effected in compliance with such order, proof that the defendant actually had knowledge of the process is unnecessary”. In the premise, it is not open to the Appellant to contest that he had not been served with the Petition or that he had no actual knowledge of it. The evidence is that he was duly served. It was up to him to react. PER ABUBAKAR DATTI YAHAYA, J.C.A.
EFFECT OF UNCONTROVERTED AFFIDAVIT
It is the law, that unless facts deposed to in an affidavit have been controverted, such facts are taken to be true – EGBUNA VS. EGBUNA (1989) 2 NWLR (PT. 106) 774. PER ABUBAKAR DATTI YAHAYA, J.C.A.
CIRCUMSTANCE WHERE IT WOULD BE UNNECESSARY TO FILE A COUNTER AFFIDAVIT
Where the facts deposed to in an affidavit in support are irrelevant, vague, frivolous, fallacious, or unbelievable, it would be unnecessary to file a counter-affidavit to challenge same. See YAHAYA VS. FRN (2007) LPELR – 4563 (CA) AT PAGES 16-18. PER ABUBAKAR DATTI YAHAYA, J.C.A.
POSITION OF THE LAW REGARDING AFFORDING A PARTY TO AN ACTION FAIR HEARING AND WHETHER SUCH PARTY CAN COMPLAIN OF FAIR HEARING WHEN HE FAILS TO UTILIZE HIS OPPORTUNITY TO BE HEARD AFTER BEING SERVED WITH THE FILED PROCESSES
In PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 AT 68 Tobi JSC referred to INEC VS ALHAJI MUSA (2003) 3 NWLR (PT. 806) 72 to define fair hearing in respect of a party. He held that “fair hearing, in essence means giving equal opportunity to the parties to be heard in the litigation before the Court”. It starts from serving a party, with the processes filed and giving him an opportunity to defend the action or not. Once there is service of the processes on the party and a date is communicated to him, for the hearing of the matter or any application in it, then that party would have been accorded an opportunity to participate in the proceedings, and he cannot be heard to complain of breach of fair hearing in that respect. The Appellant had been given the opportunity to be heard, just like the 2nd Respondent herein. The 2nd Respondent filed Reply and participated. The Appellant did not. It was his prerogative to participate and defend the Petition or not. The observance of fair hearing does not lie on a party actually taking part in the proceedings but in his being given an opportunity to be heard. If he failed to take advantage of his right to be heard after being served and having been given the opportunity to be heard, he cannot complain of breach of fair hearing. See INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423: ABUBAKAR VS INEC (2004) 1 NWLR (PT. 854) 207 AND NWOKOCHA VS. A.G. IMO STATE (2016) LPELR -40077 (SC). PER ABUBAKAR DATTI YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal has emanated from the Ruling of the National Assembly Election Petition Tribunal, Owerri, delivered on 26th February 2021 in Petition No. EPT/OW/SEN/1/2020 — YOUNG PROGRESSIVE PARTY (YPP) VS ALL PROGRESSIVES CONGRESS (APC) & 3 OTHERS.
The 3rd Respondent herein, Independent National Electoral Commission (INEC), conducted a bye election for the Imo North Senatorial District on the 5th December 2020. Being dissatisfied with the result of the said election the 1st Respondent herein (YPP), presented a Petition to the Election Petition Tribunal Owerri, praying that the 2nd Respondent herein (APC), 4th Respondent herein (Chukwuma Francis Ibezim) and the Appellant herein (Senator Ifeanyi Godwin Ararume) were not qualified to contest the said election. On issue of service, the Election Petition Tribunal made an Order for substituted service of the Petition and other processes on the APC and Senator Ifeanyi Godwin Ararume, who were the 1st and 4th Respondents at the Petition. All the Respondents to the Petition except the 4th Respondent Ararume,
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filed their Replies. Then the 4th Respondent Ararume, who is now the Appellant filed an application on the 15th of February 2021 praying the Tribunal to set aside the Order for substituted service and the service of the Petition and for the Tribunal to compel the 2nd Respondent (APC), to deliver the Petition to him. After arguments, the Tribunal on 26th February 2021, refused the said application. Hence this appeal.
The brief of the Appellant was settled by its counsel Mr. E. R. Iremeka and was filed on 17th March 2021. He distilled two issues for determination viz-
1. Whether the learned trial Judges of the Tribunal were right in law when they held that the 4th Respondent/Appellant’s application to, inter alia, set aside the order for substituted service on the Appellant through the 2nd Respondent herein was not brought within time, when there is no time limit within which to set aside such order?
2. Whether the learned trial Judges of the Tribunal were right in law when they woefully failed to compel the 2nd Respondent to serve the Appellant with a copy of the Petition meant for service on the Appellant and thereby denied the Appellant’s
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fundamental right to fair hearing in the said Petition?
The 1st Respondent’s brief was settled by Mr. C. Nwigwe and was filed on 25th March 2021. He identified one issue for determination and it is
“Whether the learned trial Justices of the Tribunal were right to have dismissed the Appellant’s application filed on 15h February 2021?”
He also filed a Preliminary Objection on the 25th March 2021, that ground 1 of the grounds of appeal and issue No 1 distilled from it, were not derived from the Ruling appealed against. He argued the Preliminary Objection in the first Respondent’s brief, from paragraphs 3.0 to 3.10.
The second Respondent filed its brief on the 19th March 2021 through the agency of its counsel, Dr. C. C. Nwadigo. The lone issue he identified is
“Having regard to the facts and circumstances of the Petition, whether the election Tribunal was right when it dismissed the Appellant’s application to set aside its order for substituted service”.
The 3rd Respondent did not file a brief. The 4th Respondent’s brief was filed on 19th March 2021, in much similar fashion as the brief of the 2nd Respondent. The lone issue
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distilled in the 4th Respondent’s brief is:
“Whether the election tribunal was right when it dismissed the Appellant’s application of 15th February 2021, seeking to set aside its Order for substituted service”.
The Appellant filed replies to the 2nd and 4th Respondents’ briefs on 25th March 2021.
PRELIMINARY OBJECTION
That ground 1 of the grounds of appeal and issue 1 in the brief of argument do not derive from the Ruling appealed against.
Learned counsel for the 1st Respondent in support of the Preliminary Objection submitted that a ground of appeal, must relate to the decision appealed against and should be a challenge to the ratio decidendi of the decision, otherwise it will be incompetent and liable to be struck out. He referred to ROBA INVESTMENT LTD. VS. AREWA METAL CONTAINERS LTD. (2010) LPELR 4900 AND SARAKI & ANR. VS. KOTOYE (1992) LPELR – 3016 (SC). He then argued that the Ruling in contention, did not make any determination as to time within which to bring the application filed on 15th February 2021, but that the decision was predicated upon the fact that the Appellant as 4th Respondent then, was served in the manner
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ordered by the tribunal. As such, he argued, the 1st ground of appeal and the issue distilled from it, do not emanate from the ratio decidendi of the decision and should be struck out.
Surprisingly, the Appellant failed to answer the issue raised in the Preliminary Objection. It was the 1st Respondent that filed the Preliminary Objection. The Appellant did not file any reply to the 1st Respondent’s brief and did not answer the Objection. He only filed replies to the 2nd and 4th Respondents’ brief, whereas the said two Respondents did not file a preliminary objection.
I have looked at ground 1 of the appeal and the issue distilled from it. I have also paid close attention to the Ruling giving birth to this appeal. It is contained at pages 169 — 172 of the record of appeal. In it, the Tribunal refused the application mainly on the ground that the applicant misconceived the Order of the tribunal, which was that the Petition was to be served by substituted service on the 3rd Respondent and 4th Respondent (the appellant herein), to wit, by pasting same on the wall, gate or other conspicuous parts of the office of the 1st Respondent; and not by
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delivery of the petition to the 1st Respondent who was to serve the same on the 4th Respondent. To that extent therefore, the issue of not bringing the said application “within time, when there is no time limit within which to set aside such an order”, did not feature in the decision of the tribunal. It is however understandable how the Appellant came by his view. The tribunal made reference to time, but even on this, it was in respect of time to file a reply to the petition, not the application. It stated that:
“The order of substituted service was effected on the 4th Respondent, he has failed to file his reply within the time and therefore cannot do so through any other means of service of the petition on the 4th Respondent”.
In my view, this is what set off the Appellant. Although he is wrong, I take the stand that this is an Election Petition matter that evokes lots of passion and technical rules of Court when employed unnecessarily, tend to jeopardise democratic perception. I therefore overlook the blunder in this respect, regarding the facts and the nature of the action. I sustain ground 1 and the issue distilled from it and I discountenance
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the Preliminary Objection.
I shall utilise the issues formulated by the Appellant in determining this appeal.
ISSUE 1
Whether the learned trial Judges of the tribunal were right in law when they held that the 4th Respondent/Appellant’s application to, inter alia, set aside the Order for substituted service on the Appellant through the 2nd Respondent herein, was not brought within time, when there is no limit within which to set aside such an Order?
Learned counsel for the Appellant submitted on this, that the tribunal was wrong in law when it held that the Appellant’s application to set aside its order for substituted service on the Appellant through the 2nd Respondent herein, was not brought within time, when there is no time limit for a party who was never aware of the pendency of the Petition. He was emphatic, that the tribunal made an order ex parte for substituted service of the Petition on the Appellant through the 2nd Respondent, which was effected but that the 2nd Respondent being of a different faction of All Progressive Congress (2nd Respondent), concealed the petition and refused to deliver same to the Appellant, an
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information he said he received from the Secretary of the tribunal. He further submitted that the Petition meant for the Appellant, was still in possession of the 2nd Respondent and the tribunal should have set aside its substituted Order or compel the 2nd Respondent to deliver it to him. Since all these facts were deposed to in an affidavit in support of the application, for which no counter-affidavit was filed by the 2nd Respondent, it was deemed in law, to have accepted same -APC VS. INEC (2015) 8 NWLR (PT. 1462) 531 AT 584: MABAMIJE VS OTTO (2016) ALL FWLR (PT. 828) 863 AT 898 AND EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506) 529 AT 552.
Counsel argued that since the 2nd Respondent did not deny or controvert the affidavit in support of the application, the tribunal ought to have set aside the order for substituted service and to also compel the 2nd Respondent to hand over the said Petition to the Appellant and also reprimand him for gross disrespect, tantamount to contempt of Court. He urged us to resolve this issue in favour of the Appellant.
For the 1st Respondent, it was submitted that a Court has the right to order substituted service,
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either after or without an attempt at personal service, where personal service cannot conveniently be effected – ONONYE VS CHUKWUMA (2005) 17 NWLR (PT. 953) 90. He referred to the Order for substituted service by the tribunal as contained at page 1 of the additional record of appeal and submitted that it had been complied with — page 171 of the record. Counsel also argued that having made the order, the tribunal was functus officio and had no jurisdiction to have ordered another form of service on the Appellant as sought — DINGYADI VS. INEC (NO.2) (2011) 18 NWLR (PT. 1224) 154 AT 186 AND FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247 AT 296. Further, counsel submitted that the application of the Appellant before the tribunal was based on a misconception of the Order of the tribunal, as captured in its Ruling at page 172 of the record. He then argued that actual knowledge of the process is unnecessary once the Order was complied with – DICKSON VS. OKOI (2003) 16 NWLR (PT. 846) 397 AT 411. He submitted that the Appellant’s right of fair hearing was not breached as he was served. He urged us to dismiss the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Dr. C. C. Nwadigo for the 2nd Respondent referred to Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules 2019, applicable to the tribunal, on the discretionary powers to order substituted service of processes – ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PT. 1594) 181 AT 227 AND BELGORE VS AHMED (2013) 8 NWLR (PT. 1355) 60 AT 91. He referred to the Order of the tribunal for substituted service which was complied with on 20th January 2021. He also referred to paragraph 3(a) —(h) of the Appellant’s affidavit in support of the application, and then argued that the said application was based on a fabricated fact. Since there was compliance with the Order he argued, the Appellant could not pray for setting aside the service, for a purported failure of the 2nd Respondent to deliver the Petition to him – AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 AT 544.
Learned counsel also referred to the findings of the tribunal at pages 171 — 172 of the record that the Court processes were brought to the notice of the Appellant, and argued that since the finding had not been challenged by the Appellant, he is deemed to have accepted same, and
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taken as established — P.D.M. VS INEC (2020) 17 NWLR (PT. 1753) 303 AT 335 -336 AND WALI VS. APC (2020) 16 NWLR (PT. 1749) 82 AT 97.
On the failure of the 2nd Respondent to challenge the affidavit in support of the application to set aside the Order for substituted service, by filing a counter-affidavit, counsel submitted that the facts in the affidavit in support were a complete misrepresentation of the Order of the tribunal for substituted service and a counter affidavit was not necessary to unearth them. He emphasised that a counter affidavit is unnecessary if depositions in the affidavit in support of the motion are moonshine — PDP VS. ASADU (2016) 17 NWLR (PT. 1541) 215 AT 223; YAHAYA VS. FRN 2008 ALL FWLR (PT. 439) 478 AT 489 AND OKOYE VS C.P.M.B. LTD. (2008) 15 NWLR (PT. 1110) 335 AT 362.
On breach of fair hearing as guaranteed by Section 36(1) of the Constitution, counsel argued that since the Appellant had been duly served, and he was the one who failed to file a Reply to the Petition, he cannot be heard to complain about breach of fair hearing – ARDO VS. INEC (2017) 13 NWLR (PT. 1583) 450 AT 493; UKACHUKWU VS. PDP (2014) 17
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NWLR (PT. 1435) 134: INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423 AND MBANEFO VS. MOLOKWU (2014) 6 NWLR (PT. 1403) 377 AT 418 — 419. He urged us to dismiss the appeal.
The brief of the 4th Respondent is virtually the same as that of the 2nd Respondent. I therefore do not find it necessary to repeat same here.
The Appellant filed Replies to the 2nd Respondent’s brief and the 4th Respondent’s brief. He mostly re-iterated his position canvassed in the brief. However, at paragraph 1:08, page 3 of the Reply brief to the 2nd Respondent’s brief, learned counsel for the Appellant stated that
“Following the failure of the 2nd Respondent to deny the allegations made against it in the Appellant’s Affidavit in support of the said Application that the 2nd Respondent confiscated the Petition pasted on its office for the Appellant and concealed it from the Appellant…”
All along, the Appellant was projecting that the petition was given to the 2nd Respondent, to be given to the Appellant. But in this Reply, the Appellant now says that the Petition was “pasted” on the office of 2nd Respondent. This is gross inconsistency and contrary to
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his avowed stand all along, and in the affidavit in support.
I could not find in the record, where the Petitioner (1st Respondent herein) made the application for substituted service of the Petition on the 1st Respondent and the 4th Respondent to the petition. However, I have looked at the Enrolled Order contained at page 1 of the Additional Supplementary Record of appeal, and it states —
“IT IS HEREBY ORDERED as follows:
1. The Petition and all other processes filed on same shall be served on the 3rd and 4th Respondents by substituted means by pasting on the wall, gate and other conspicuous parts of the office of All Progressive Congress Party Secretariat at Okigwe Road, Owerri, Imo State”.
So the substituted order for service made, was to paste the Petition and other process on the wall, gate and other conspicuous parts of the office of All Progressives Congress Party Secretariat. This Order was carried out by the bailiff of the tribunal on 20th January 2021 as can be seen from his affidavit of service sworn to at the Court of Appeal Registry Owerri on the 20th January 2021 (page 2 of the Additional Supplementary Record of
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Appeal). However, the affidavit in support of the application to set aside the Order for substituted service, sworn to by Miriam Okonkwo, a litigation officer in the law firm of the lead counsel to the 4th Respondent at pages 112 — 114 of the record of appeal, partly deposes that-
(a) The 4th Respondent/Applicant is sued as the 4th Respondent in this Petition.
(b) The 4th Respondent has not been served with a copy of the Petition meant for service on him.
(d) That …Secretary of this Honourable Tribunal informed him (Emma Nwosu) of the pendency of Petition No. EPT/OW/SEN/1/2020 and that the Petition was fixed for 15th February, 2020.
(f) That the said Secretary further informed him that the copy of the petition in this Petition meant for service on the 4th Respondent/Applicant was served on the 1st Respondent for delivery to the 4th Respondent.
(i) That there are two factions of the 1st Respondent in Imo State, one faction led by one Chief Marcellanus Nlemigbo while the other faction is led by one Mr. Daniel Nwafor which the 4th Respondent belongs to and which faction the Federal High Court recognized by its decision and
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confirmed by the Court of Appeal.
(j) The said Petition meant for service on the 4th Respondent got into the hands of the faction of the 1st Respondent led by Chief Marcellanus Nlemigbo and was accordingly withheld by the said faction.”
The above extracts of the depositions in the affidavit in support of the application to set aside the Order for substituted service, are therefore totally at variance factually, with the Order for substituted service made by the tribunal. The Order was to be by pasting the Petition and other processes, on the gate and wall of All Progressives Congress Party at Okigwe Road, Owerri, and this was done. It is therefore fallacious to depose that the Petition “got into the hands of the faction of the 1st Respondent and was accordingly withheld by the said faction,” as if the Petition was hand-delivered. It is equally fallacious and contrary to the record of Court, to depose that “the 4th Respondent has not been served with a copy of the Petition meant for service on him,” since the affidavit of service sworn to by the bailiff of the tribunal, shows that the pasting of the Petition, pursuant to the Order of the
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tribunal, had been carried out duly on 20th January 2021. The application having been premised on false depositions and totally at variance with documentary evidence, was therefore doomed to fail from the word go.
It was misconceived and totally erroneous. The basis of the application had been completely knocked out from the bottom. The tribunal looked into its file and found where it made the Order for substituted service and its contents. A Court is entitled to look at its file suo motu, and make use of any document which is relevant to the issue arising for determination, whilst writing its Judgment or Ruling. This includes record of daily proceedings, processes filed and even administrative endorsements or actions of the registry staff in respect of the case. See GABRIEL SUSWAM VS. F.R.N & ANR. (2020) LPELR – 49524 (CA) AND FUMUDOH VS ABORO (1991) 9 NWLR (PT. 214) 210 AT 229. The tribunal here, looked at its record and the affidavit of service by bailiff of Court and found at pages 171 — 172 of the record that –
“The Court order for substituted service on the 3rd and 4th Respondents by pasting the Petition on the wall, gate or other
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conspicuous parts of the office of the 1st Respondent being the last and only known address of the 3rd and 4th Respondents who are members of the 1st Respondent. The Order for substituted service on the 3rd and 4th Respondents was effected by the Bailiff of the Tribunal on the 20th day of January 2021 and an affidavit of service was deposed to by the said Bailiff on the 20th day of January 2021 at the Court of Appeal Registry, Owerri Division.
…The arguments and submissions of the learned counsel that service was to be effected on the 4th Respondent by delivery of the Petition to the 1st Respondent who is to serve same on the 4th Respondent is misconceived as it was not the order of substituted service made by the Tribunal …the application, lacks merit, it fails in its entirety and is hereby refused”.
The Tribunal was right as its findings are bourne by the record. Furthermore, these findings of facts have not been challenged by the Appellant by way of an appeal. He is deemed to have accepted same. They bound this Court and the parties — GILBERT NNADIKE & ANR. VS. JUDE NWACHUKWU (2019) LPELR – 4813 (SC) 27-28.
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The power to order substituted service on a party is a discretionary one donated to the tribunal, whether an attempt at personal service has been made or not, as can be seen from Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules 2019, applicable to the tribunal and the case of ZAKIRAI VS. MUHAMMAD (2017) LPELR – 42349 (SC) where Augie JSC at pages 40 held that
“…Order 6 Rule 5 (a) and (b) reads, where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either…”
The order for substituted service of the petition on the 3rd and 4th Respondents to the Petition, was therefore in order. At any rate, there is no challenge against that Order. It must be emphasised that when substituted service is ordered by a Court and it is effected, then there is proper service on that party. It is immaterial, that the party did not actually have knowledge of it. In DICKSON VS OKOI & ORS (2002) LPELR -10335 CA, Edozie JCA at page 12 held that “Where, in accordance with the rules of Court,
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an order for substituted service is made and service is made and service is effected in compliance with such order, proof that the defendant actually had knowledge of the process is unnecessary”. In the premise, it is not open to the Appellant to contest that he had not been served with the Petition or that he had no actual knowledge of it. The evidence is that he was duly served. It was up to him to react.
The Appellant has also attacked the failure of the 2nd Respondent herein, to challenge the affidavit in support of the application to set aside the Order for substituted service, by filing a counter affidavit, urging that the 2nd Respondent had thereby admitted all the depositions in the affidavit in support of the application. It is the law, that unless facts deposed to in an affidavit have been controverted, such facts are taken to be true – EGBUNA VS. EGBUNA (1989) 2 NWLR (PT. 106) 774. Again, unless a Reply is filed to a counter-affidavit, the facts in the counter-affidavit are deemed accepted.
However, it is not in all cases that a party must file a counter-affidavit to challenge depositions in an affidavit in support. Where the facts deposed to in
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an affidavit in support are irrelevant, vague, frivolous, fallacious, or unbelievable, it would be unnecessary to file a counter-affidavit to challenge same. See YAHAYA VS. FRN (2007) LPELR – 4563 (CA) AT PAGES 16-18. The depositions in the affidavit in support of the application that the Order for substituted service was by delivery of the Petition to the 2nd Respondent herein, to be given to the 4th Respondent (Appellant) is fallacious. It is also not true, that the Appellant had not been served with the Petition. He was. Those depositions, which are the crux of the issue and the backbone of the application to set aside the Order for substituted service and the subsequent service on the Appellant, being fallacious, did not require the filing of a counter-affidavit to controvert them, since the true facts are before the tribunal in a documentary form. The failure to file a counter-affidavit did not therefore adversely affect the 2nd Respondent herein.
From all of the above, it is crystal clear, that the tribunal was right when it dismissed the application to set aside the order for substituted service, the service itself or to compel the 2nd Respondent
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herein to release the Petition to the Appellant. Issue No. 1 is thus resolved against the Appellant and in favour of the 1st, 2nd and 4th Respondents.
ISSUE NO 2
Whether the learned trial Judges of the Tribunal were right in law when they woefully failed to compel the 2nd Respondent to serve the Appellant with a copy of the Petition meant for service on the Appellant and thereby denied the Appellant’s fundamental right to fair hearing in the said Petition?
This issue is clearly based upon the success of the first issue i.e. that the Appellant was not served with the Petition and such failure had breached his fundamental right to fair hearing. As it is, Issue No 1 had been resolved against the Appellant, in effect, showing that he had infact been served with the Petition, through pasting on the gate, wall and other conspicuous parts of the office of All Progressives Congress Party Secretariat at Okigwe Road, Owerri. His right to fair hearing had thus not been breached at all. He did not appeal against the Order for substituted service on him. He has not appealed against the findings of the tribunal, that he had been served with the Petition in
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accordance with the Order of the tribunal.
In PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 AT 68 Tobi JSC referred to INEC VS ALHAJI MUSA (2003) 3 NWLR (PT. 806) 72 to define fair hearing in respect of a party. He held that “fair hearing, in essence means giving equal opportunity to the parties to be heard in the litigation before the Court”. It starts from serving a party, with the processes filed and giving him an opportunity to defend the action or not. Once there is service of the processes on the party and a date is communicated to him, for the hearing of the matter or any application in it, then that party would have been accorded an opportunity to participate in the proceedings, and he cannot be heard to complain of breach of fair hearing in that respect. The Appellant had been given the opportunity to be heard, just like the 2nd Respondent herein. The 2nd Respondent filed Reply and participated. The Appellant did not. It was his prerogative to participate and defend the Petition or not. The observance of fair hearing does not lie on a party actually taking part in the proceedings but in his being given an opportunity to be heard. If he failed to
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take advantage of his right to be heard after being served and having been given the opportunity to be heard, he cannot complain of breach of fair hearing. See INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423: ABUBAKAR VS INEC (2004) 1 NWLR (PT. 854) 207 AND NWOKOCHA VS. A.G. IMO STATE (2016) LPELR -40077 (SC).
Therefore, since the Appellant had been served and had been given the opportunity to be heard on the Petition, but he failed to avail himself of that opportunity, he cannot complain and his right to fair hearing had not been breached. Issue No. 2 is thus resolved in favour of the 1st, 2nd and 4th Respondents, and against the Appellant.
This appeal lacks merit in its totality, it fails and is hereby dismissed.
N250,000 costs to the 1st, 2nd and 4th Respondents against the Appellant.
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 DATTI YAHAYA, JCA and I totally endorse the reasoning and conclusion therein.
I adopt the consequential orders in the lead judgment as mine.
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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment and reasonings and conclusions therein just delivered by my learned brother, ABUBAKAR DATTI YAHAYA, JCA and I agree with him.
I fully adopt the eloquent elaborate reasons so well set out in the lead judgment as mine and I have nothing more to add as mine.
I abide by the consequential order(s) made in the leading judgment.
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Appearances:
C. Nwufo SAN, with him, U.N. IsaacFor Appellant(s)
Chukuemeka Nwigwe, with him, I Obioma for 1st Respondent.
Chief Ofora Abah for 3rd Respondent.
No appearance for 4th Respondent. Served on 13/4/2021. For Respondent(s)
