MR. FATAI ALABI V. GODWIN CHIBUEZE UMEUGOJI (2010)

MR. FATAI ALABI V. GODWIN CHIBUEZE UMEUGOJI

(2010)LCN/3591(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of February, 2010

CA/L/340/2002

RATIO

WORDS AND PHRASES: MEANING OF SHALL

JURISDICTION: IMPORTANCE OF JURISDICTION

“A court can only be competent if among other things all the Conditions precedent for its having jurisdiction are fulfilled. In Madukolu and Others v Nkemdilim (1962) 1 All NLR 587 at 594, Bauramian F.J. (as he then was) stated the principles, which have been accepted in successive cases in this court. “A court is competent he said when (3) The case comes before the court initiated by due process of Law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal; for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to adjudication.” The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.”

Their Lordships further and while confirming a proceeding as being rendered null and void for improper or non-service of process recounted the view of Lord Greene M. R. in the case of CRAIG V KANSSEN (1943) K. B. 256 at pages 262-263 wherein he said:-

“… in my opinion it is beyond question that failure to serve process, where service of process is required, is failure which goes to the root of our conception of the proper procedure in litigation …the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England.” PER CLARA BATA OGUNBIYI, J.C.A.

FAIR HEARING: CONCEPT OF FAIR HEARING

The right to fair hearing being a constitutional right, the breach of it in any trial, investigation or inquiry, nullifies the trial, investigation or inquiry and any action taken on them is also a nullity. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one way traffic but a two way traffic in the sense that it must satisfy a double carriage way in the con of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour one of the parties to the disadvantage of the party undeservedly. That will not be justice. See Akulega v. BSCSC (2001) 12 NWLR (pt 728) 524 and Newswatch Communications Limited v. Alhaji Aliyu Ibrahim Aita (2006) Vol. 7 MJSC 88 and 107-108. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

1. Mr. Fatai Alabi
(Substituted for Alhaji Idris Alabi
(deceased) as for himself and as
representing other beneficiaries of
the deceased estate)
2. Mrs. Juliana Akinbinu Appellant(s)

AND

Godwin Chibueze Umeugoji Respondent(s)

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): By a writ of summons issued under the seal of the High Court Registry Lagos on the 12th day of May, 2000 the respondent herein, who was the plaintiff, at the lower court claimed the following reliefs at paragraph 14 of his statement of claim at pages 12 and 13 of the Record of Appeal:-
“14. WHEREOF, the plaintiff claims against the Defendants jointly and severally:
(a) A declaration that the plaintiff is the holder of the statutory right of occupancy in respect of the land situate, lying and at Babs-Animashaun Road, Ikate, Itire, Lagos State by virtue of the certificate of occupancy dated 30th January 1990 registered as No.47 at page 47 in volume 1990 B at the Lagos State Land Registry.
(b) A declaration that the plaintiff is entitled to economic rent in respect of the said property from May, 1998 in view of the fact that the Defendants have denied and challenged the title of the plaintiff in respect of the said property.
(c) The sum of N25,000 (Twenty five thousand Naira) per month for the use and occupation of the said property from May, 1998 until possession is given up.
(d) Possession of the said land registered as No.47 at page 47 in volume 1990 B in the Lagos State Land Registry.
(e) An order of perpetual injunction restraining the Defendants by themselves, agents, servants and privies of howsoever described from trespassing on the property registered as No.47 at page 47 in volume 1990 B in the Lagos State Land Registry.”
In the absence of any brief of arguments filed by the respondent, the appellants side of the story as summarized state as follows:-
That summons for directions was purportedly filed on the 28th day of September, 2000 although dated 27th October, 2000, and originally fixed for hearing on 30th October, 2000. Appellant also claimed that on the face of the record at page 6, the same summons for directions was re-fixed for 27th November, 2000. That the lower court eventually heard only counsel for the plaintiff (respondent herein) on Monday 26th March, 2001 on the summons for directions consequent upon which the case was fixed for 2nd October, 2001 for trial. That on the said date, trial was concluded and a date was fixed for address on 16th November, 2001. That address of counsel for the respondent herein was taken on the 8th day of November, 2001 and judgment was thereafter fixed for 3rd May, 2002. That the judgment was consequent upon delivered on the date fixed and which same is now the subject matter of this appeal.
The Notice of Appeal herein is at pages 28 and 29 of the record and it is dated 27th January, 2003. By an order of court made on the 13th July, 2004 Mr. Fatai Alabi, was substituted for the 1st appellant, Alhaji Idris Alabi. The said notice of appeal was, pursuant to an order of this court made on the 15th January, 2003 ordered to be filed within 14 days of the order. Consequent upon, the same was filed on the 27th January, 2003. Three grounds of appeal were raised therein by the appellant.
On the 1st March, 2004 the said appeal was entered in this court following a departure order made and admitting the bundle exhibit AAO as the record of this appeal. The appellants’ brief of argument filed on the 17th May, 2004 was deemed properly filed on the 13th July, 2004. The respondent did not deem it necessary to file any Respondent’s brief in response and on the 4th June, 2007, following an application by the appellant to this court; an order was made that the appeal be heard on the appellants’ brief alone.
On the 26th January, 2010 the learned appellants’ counsel Mr. J. D. Oloyede while leading Messrs O. Yonwuren and Ronke Koku (Miss) adopted and relied on the said appellants’ brief and urged that the appeal be allowed. The respondent, despite service on him of the hearing notice was neither in court nor was he represented by a counsel. The said attitude coupled with the failure to file any brief is a clear confirmation that he did not intend to contest the appeal.
For the determination of this appeal therefore, the appellants raised three issues for determination from their three grounds of appeal as follows:-
1. Whether the affidavits of service deposed to by one Adetola Onasanya, a bailiff of the High Court of Lagos State at the lower court are enough confirmation of compliance with the requirement of the mandatory provision of order 7 rules 1, 2, and 16 of the High Court of Lagos State Civil Procedure Rules 1994.
2. In the event that issue 1 is answered in the affirmative, whether the lower court had jurisdiction to proceed to trial in the absence of proof of service of originating process on the appellants herein.
3. Whether in the circumstances of this case, the appellants have been given an opportunity to be heard by the lower court as enshrined under section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
On a closer scrutiny, the appellants’ three issues would reveal that they are all closely interwoven and interrelated and cannot therefore have a meaningful dichotomy but would rather in the circumstance be taken together for purpose of determination.
Submitting to substantiate the issues the learned appellants’ counsel emphatically argued and restated that his clients only became aware of the pendency of the suit at the lower court sometime on or around the 9th August, 2002 when a bailiff of the lower court with some assistance swooped on the 1st appellant on the subject, property in question, to levy execution as per the judgment of the lower court delivered 15th May, 2002. The appellants basis of contention was that they were never served with the originating process or any process at all before the lower court proceeded to trial and subsequently judgment. Reference was analytically made to the affidavit of service deposed to by the aforementioned bailiff in the person of one Godwin Chibueze which learned counsel argued have not met with the specific requirements of the law relating to service of originating process in Lagos State. That order 7 rule 16 of the High Court of Lagos State Civil Procedure Rules 1994 is very instructive and relevant.
Further authority related is the case of Martin Schroder & Co. vs. Major & Company Nigeria Ltd. (1989) 2 NWLR (Pt.101) page 1, Supreme Court decision. That having regard to the affidavits of service of the writ of summons and the attached copy of the writ of summons purportedly served on both the appellants there has been no endorsement of that part of the originating process. In other words, that the portion have been left blank.
That there is therefore no pretension that the bailiff complied with the requirements of the law. That any other entry on any other process, document or any other part of the writ of summons will not suffice in proof of service of the originating process. Learned counsel drew the court’s attention to page 23 of the record of appeal wherein that the lower court on the Day of Judgment (page 25 of the records) merely recanted the submission, of learned counsel to the respondent. That no question as to service of any of the processes was asked by the lower court and such an indulgence was also not granted by the learned counsel for the respondent. Counsel argued further that, had the lower court adverted its mind at all to the fundamental issue of service of originating process, it would not have fallen into the error of not directing itself that it was not then vested with jurisdiction, especially where the requirement of the law as to service had not been complied with. That the decision in the case of SCHROEDER (supra) had distinguished between the provisions of the then order 6 rules 15 and 16 to the effect that since the latter specifically deals with service of writs of summons, the provision of rule 15 would not therefore apply. The learned counsel in the circumstance did impressed upon this court to hold and declare as was done in SCHROEDER’S case that all subsequent proceedings and processes premised on the ineffective affidavit of service earlier referred to are null and void ab-initio. That should this finding be so made, the execution already levied against the defendants in respect of the subject property and other personal items of the first respondent must also be declared a nullity and all the items attached in consequence thereof must be released to the appellants.
Learned counsel, in further submission on the effect of non service also cited the apex court’s decision in the case of Skenconsult (Nig.) Ltd. & Anor. V Godwin Sekondy Ukey (1981) 1 SC 6 wherein the question of the court’s jurisdiction in such situations is of great significance and relevant which cannot therefore be compromised. Relating also to section 36(1) and (2)(a) of the constitution of the Federal Republic of Nigeria 1999, the learned counsel regrettably submitted the absence of the right to fair hearing accorded the appellants. This, he argued is a fundamental defect which had breached the appellants constitutional rights to such hearing. That this court cannot therefore afford to gloss over such a very serious error.
The learned counsel in the circumstance urged that the prayers sought by the appellants in their paragraph 4 of the Notice of Appeal dated 27th day of January, 2003 be granted. In other words that while the judgment of the lower court dated 15th May, 2002 should be set aside and the execution also levied on the 9th day of August, 2009, counsel thereupon sought for an order of a retrial before another Judge of the lower court for the following reasons, that:-
1. The writ of summons and all other processes were not served on the appellants before the lower court proceeded to trial;
2. There is no valid proof that originating process was ever served on the appellants;
3. The lower court therefore lacked jurisdiction to entertain the suit as it did;
4. Consequently, therefore that, there has been a fundamental breach of the appellants’ right to fair hearing.
It is apparent that the suit the subject matter of this appeal was undefended which principles of law governing such nature of claim are trite and not in dispute. As a consequence therefore, the plaintiff filed summons for Directions evidenced at pages 6-8 of the record of appeal with same dated 27th October, 2000. The said summons was, at page 6 of the record refixed for 27th November, 2000.
The relief sought by the appellant and at paragraph 4 of the notice of appeal is for an order:-
“Setting aside the judgment and the execution thereon and remitting the case back to the lower court for re-trial before another Judge subject to compliance with the rules of court as to service.”
In summary, the main issue calling for determination in this appeal is, whether there had been sufficient proof of service of the writ of summons, being an originating process as well as all other processes in compliance with the High Court Civil Procedure Rules Lagos State, under reference, and thus exonerating the lower court from error alleged by the appellant?
The appellants’ bone of contention which is well spelt out in their brief is that, they were never served with the originating process or any process for that matter before the lower court proceeded to trial and subsequently judgment.

The provisions of order 7 rules 1, 2 and 16 of the High Court of Lagos State Civil Procedure Rules 1994 relates to service of writs of summons and other documents which reproduction are significant:-
“1. Service of writs of summons, originating summons, notices, petitions, pleadings, orders, summonses, warrants and of all other proceedings, documents or written communications of which service is required, shall be made by the Sheriff or a Deputy Sheriff, bailiff, officer of the court, or by a person appointed therefore (either especially or generally) by the Court or by a Judge in Chambers, unless another mode of service is prescribed by these Rules or the Court or a Judge in Chambers otherwise directs:
Provided that when a party is represented by a legal practitioner service of notice, pleadings, petitions, orders, Summonses, warrants and of all other proceedings, documents or written communications of which personal service is not required may be made by such legal practitioner or by his clerk under his control.
2. Save if otherwise prescribed by any of the following Rules of this Order a writ of summons, an originating summons, or any other originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified in the manner prescribed by Order 6 rule 2, without exhibiting the original thereof.
16. The person effecting service of a writ of summons, originating summons or other originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 6, the fact, place, mode and date of each service effected and shall sign and date each indorsement.”
The said provision as rightly submitted by the learned appellants’ counsel came up for interpretation in the case of Martin Schroder & Co. vs Major & Company Nig. Ltd. (1989) 2 NWLR (Pt.101) p. 1. Their Lordship’s of the apex court in their unanimous decision while considering order 6 rule 16 of the 1972 Rules which is impari-materia with the new order 7 rule 16 of the 1994 Rules of Court of Lagos State had the following to say at page 20 of the report per Oputa JSC.
“Had the appellant used the procedure set out in order 6 rule 16, above, the endorsement as to service should have borne on its face the place, the mode and the date of service. It would not have been necessary for the bailiff to swear to an affidavit two years after the service. In this case I am in full and total agreement with the two courts below that proof of service of plaintiffs’ writ of summons should have been as clearly and specifically provided for in order 6 rule 16, and not by affidavit as required by order 6 rule 15 (1)(b). The resultant effect is that the plaintiff failed to prove that its writ of summons was in fact served on the Defendant. Any other proceedings -leave to sign final judgment or writ of fifa – were therefore all given per incuriam and were all tainted with a fundamental vice which robbed the court of the necessary jurisdiction. They were thus null and void ab initio. Skenconsult (Nig.) Ltd. & Anor. V Godwin Sekondy Ukey (1981) 1 S.Cat pp.26-27; Madukolu & ors. V Nkemdilim (1962) 1 All NLR 587 at p.595 …the only manner of proof of service of a writ of summons in Lagos State is as provided for, by order 6 rule 16 of the High Court of Lagos State (Civil Procedure) Rules, that is to say: the person effecting the service shall endorse forthwith on the writ the fact, place, mode and date of service. The person serving shall also sign and date such indorsement.”
Their Lordships therefore held the said affidavit of service as incompetent to prove service of a writ of summons. In other words; “that the said affidavit notwithstanding, failure to comply with order 6 rule 16 was fatal to proof of service of a writ of summons.”
With further reference to the record of appeal, at pages 9, 10, 11, 12 and 13 they show prima facie, the affidavits of service of writ of summons and the attached copy of the writ of summons, statement of claim sought to have been served on the 1st appellant, as well as the summons for direction per the affidavit at page 14 of the said record, on the one hand. In respect of the 2nd appellant on the other hand however, pages 16, 17 and 18 are the affidavit of service and the attached copy of the writ of summons as well as the writ of possession.
The writ of summons at pages 10 and 17 of the record was the originating process on the appellants. From the affidavit of service deposed to by the bailiff, same were sworn to on the 16th November, 2000. The address of service on the 1st Defendant/Appellant was Babs Animashaun Road, Suru-lere while that of the 2nd defendant/appellant was No.1 Adedeji Close Opebi. There was no specific number of address of service on the 1st appellant. Furthermore while at page 15 of the record of appeal the summons for direction was served on the 2nd defendant/appellant at No. 1 Adedeji Close Opebi, the writ of summons and statement of claim were served on the same appellant at No.1 Adedeji Close Ikeja as evidenced at page 16 of the record. There is certainly no similarity in Opebi and Ikeja. This is very significant especially in view of the importance of service of originating process. It is not enough that issues of service are to be taken lightly and or for granted.
It is pertinent to restate the mandatory nature of order 7 rule 16 of the Lagos State High Court (Civil Procedure Rules) reproduced earlier in this judgment.

In other words, by the use of the word shall, it signifies a mandatory requirement that, as a pre-requisite evidencing service, a copy of the processes mentioned therein must be indorsed as having duly been served. It is also a necessary condition of the requirement that “the fact, place, mode and date of each service effected shall be stated as well as a signature of the indorsed. There is no such endorsement to either of the two appellants of the originating process served on them.
As rightly submitted and argued by the learned appellants’ counsel, that part of the originating process on which the required indorsement should be inserted are totally blank. By the provision of order 7 rule 16 of the High Court Rules supra, it is an indispensable condition that the evidence of service must carry an endorsement of the specific laid down requirements.
At page 23 of the record of appeal the lower court’s proceedings on the 8th February, 2001 reveals that one A. A. Adetiloye appeared for the plaintiff. There was however no appearance for the Defendant. The learned appellants counsel proceeded to address the court and said:-
“Case is undefended. Defendant either entered appearance or filed defence. They did not appear during trial. They are deemed to have admitted claim of the plaintiff.”
Learned counsel proceeded to address the court therefrom and the court adjourned for judgment on the 3/5/2002 but eventually delivered same on the 15/5/2002. It is significant to restate as observed that the lower court despite the absence of the defendants/appellants, did not make an order of service of a hearing notice against the subsequent adjourned dates. On the 15th May, 2002 when the judgment was finally read out, little or no consideration was made to the defendants/appellants who were not considered as parties to the proceeding.
All that the court said was:-
“No appearance for the defendants” and proceeded to deliver its judgment.
The proof of service of the plaintiffs’ writ of summons should have been clearly and specifically provided for and evidenced as required by order 7 rule 16 of the Lagos State High Court Rules supra. That is to say:- that the said writ of summons was in fact served on the defendants/appellants. Relying on the decision of their Lordships of the apex court in the case of Martin Schroder supra, in the absence of service having been effected on the appellants, the consequential effect is that, all subsequent proceedings and processes premised on the ineffective affidavit of service earlier referred to, are null and void abinitio. This is as rightly submitted by the learned appellants’ counsel.
The circumstance of the case at hand reveals and put to question whether the writ of summons was actually served as required by law. This is significant because the absence of service is tantamount to depriving the lower court of the jurisdiction to adjudicate thereon.

The principle of law has been enunciated times without number by judicial authorities that the issue of jurisdiction is so fundamental and which cannot be dispensed with. In other words, and relating to the case at hand, any proceeding taken on the basis of a grossly deficient affidavit of service cannot have a legal backing. This is more so especially where it is established that orders were made against a person who did not actually or could not be proved to have received process. This was a view held by their Lordships in the case of Skenconsult (Nig.) Ltd. & Anor. V Godwin Sekondy Ukey (1981) 1 SC6 wherein Nnamani JSC had the following to say at page 26.
“A court can only be competent if among other things all the Conditions precedent for its having jurisdiction are fulfilled. In Madukolu and Others v Nkemdilim (1962) 1 All NLR 587 at 594, Bauramian F.J. (as he then was) stated the principles, which have been accepted in successive cases in this court. “A court is competent he said when (3) The case comes before the court initiated by due process of Law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal; for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to adjudication.” The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
Their Lordships further and while confirming a proceeding as being rendered null and void for improper or non-service of process recounted the view of Lord Greene M. R. in the case of CRAIG V KANSSEN (1943) K. B. 256 at pages 262-263 wherein he said:-
“… in my opinion it is beyond question that failure to serve process, where service of process is required, is failure which goes to the root of our conception of the proper procedure in litigation …the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England.”
From the record of appeal before us, there is nowhere in the proceedings of the lower court where the court at any time made reference to the question of service on the defendants/appellants. One wonders why such a very fundamental issue was either relegated, underrated or not considered as significant by the said court. The place of service on the purported affidavit was Surulere and Opebi. Again and as rightly submitted by the learned appellants’ counsel, the affidavit ought to have proceeded further to specify the where about of the locations. This is of paramount significance because no assumption and conclusion can rightly be inferred on the fact of the originating process as to whether it was infact service within jurisdiction or otherwise.
The absence of proper service would again certainly, and without having to belabour the point, seriously raise the question of right to fair hearing as provided for under

section 36(1) and (2)(a) of the Constitution of the Federal Republic of Nigeria 1999; the reproduction which is necessary and state as follows:-
“36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal…
(2) …a law shall not be invalidated …if such law:-
(a) Provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person…”
Relating the constitutional provision to the matter at hand, in the absence of any knowledge of a pending suit against the appellants by reason of absence of service, they cannot be said to have been given any opportunity to defend themselves in the case at the lower court as enshrined in our Constitutional Provision supra. This has occasioned a very serious breach of the fundamental right of the appellants to fair hearing; and hence the principle captured by the maxim ‘Audi Alteram Partem’
Consequently and from the totality of this appeal therefore, I am of the considered opinion that same has merit and the reason which the issues are all resolved in favour of the appellants. In other words and in line with the appellants/relief sought for from the court, I hereby make an order setting aside the judgment of the High Court per B. Rhodes-Vivour J. dated the 15th day of May, 2002 and the execution thereof. A further order is also made that the case be forthwith remitted back to the lower court for re-trial subject to compliance with the rules of court relating service. I shall also award costs of N30,000 in favour of the appellants against the respondent.
Appeal succeeds with N30,000 costs.

ADZIRA GANA MSHELIA, J.C.A.: I have read in advance the judgment of my learned brother Ogunbiyi, JCA just delivered, and I agree entirely with her reasoning and conclusion. I only wish to add few words for the purpose of emphasis.
The right to fair hearing being a constitutional right, the breach of it in any trial, investigation or inquiry, nullifies the trial, investigation or inquiry and any action taken on them is also a nullity. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one way traffic but a two way traffic in the sense that it must satisfy a double carriage way in the con of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour one of the parties to the disadvantage of the party undeservedly. That will not be justice. See Akulega v. BSCSC (2001) 12 NWLR (pt 728) 524 and Newswatch Communications Limited v. Alhaji Aliyu Ibrahim Aita (2006) Vol. 7 MJSC 88 and 107-108.
Relating the principle of fair hearing to the case at hand, the absence of prior notice of a pending suit by reason of absence of service of originating process on the appellants, they cannot be said to have been given opportunity to defend themselves at the lower court as enshrined under S.36 (1) and 2(a) of the 1999 constitution. It has occasioned a very serious breach of the fundamental right of the appellants to fair hearing. I agree, the appeal is meritorious and should succeed.

For the reasons stated herein above and the fuller reasons advanced in the lead judgment, I too make an order setting aside the judgment of the High Court delivered on 15th day of May, 2002 and also order that the case be remitted back to the lower court for retrial. I abide by all other consequential orders made therein, inclusive of cost.

Appearances

J. D. Oloyede with O. Yonwuren abd Ronke Koku (Mrs.)For Appellant

AND

Respondent not represented.For Respondent