ENGR. ASUKWO EFFIONG ODIONG v. OBONG IYAMBA EDET EFFIONG OFFIONG
(2011)LCN/4378(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of March, 2011
CA/C/112/2009
RATIO
STATUTORY PROVISION: PROVISION OF ORDER 12 RULE 2 OF THE AKWA IBOM STATE HIGH COURT (CIVIL PROCEDURE) RULES 1987 AS TO WHETHER THERE MUST BE PERSONAL SERVICE OF SUMMONS ON THE DEFENDANT IN ALL SUITS COMMENCED BY WRIT OF SUMMONS
See: Order 12 Rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules 1987 which provides: “Save as otherwise prescribed by these rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed without exhibiting the original thereof.” In ANYOHA v. CHUKWU (2008) 4 NWLR (pt.1076) 31 it was held by Rhodes-Vivour, JCA (as he then was) at page 44 that: “There must be personal service of the Summons on the defendant in all suits commenced by Writ of Summons.” PER KUMAI BAYANG AKAAHS, J.C.A.
SERVICE OF HEARING NOTICE: IMPORTANCE OF THE ISSUANCE OF HEARING NOTICE TO THE PARTIES THAT WERE REPEATEDLY ABSENT FROM THE COURT
This court has in several cases reiterated the need to issue hearing notice where parties are repeatedly absent from court. see SAIDU v MAHMOOD (1998) 2 NWLR (Pt. 536) 130; CREDIT ALLIANCE FINANCE SERV. LTD. v MALLAH (1998) 10 NWLR (pt. 569) 341. In SAIDU v MAHMOOD supra Oguntade JCA (as he then was) pointedly stressed the need to issue hearing notice to the defendants who were absent on an adjourned date agreed to by the parties and other subsequent adjournments when he stated at pages 138 – 139 thus: “I do not fault the lower court for proceeding with the hearing on 6/11/90. But the lower court should have caused hearing notice to be served on the defendants for 4/12/90, 11/12/90 and 23/1/91. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, that the defendants had due notice. This may appear to be an over indulgence of the defendants but I think it is a price that is desirable to pay in the quest to attain maximum justice. Not to have taken this precaution was a mistake on the part of the trial Judge.” PER KUMAI BAYANG AKAAHS, J.C.A.
SERVICE OF COURT PROCESS: ESSENCE OF THE SERVICE OF ORIGINATING PROCESSES ON A DEFENDANT
The service of originating processes on a defendant is what clothes a trial court with jurisdiction to hear and determine a matter before it. It is a condition precedent to the exercise of jurisdiction. See MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; MARK v EKE (2005) 2 FWLR (Pt.259) 1. Since the appellant was not served with the Writ of Summons, it is needless to say that the court’s jurisdiction was never activated not to talk of his being given fair hearing as provided by Section 36(1) of 1999 Constitution. PER KUMAI BAYANG AKAAHS, J.C.A.
FAIR HEARING: ESSENCE OF FAIR HEARING IN COURT PROCEEDINGS
The right to be heard or to be given an opportunity of being heard is a Constitutional right under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, which is itself predicated upon the rule of natural justice requiring that the other side be heard – audi alteram partem. Failure to comply with these sacrosanct and fundamental principles of fair hearing touches on the competence of the court and the proceedings and any decision arrived at while in breach of the right to fair hearing must be set aside. See Sken Consult vs. Ukey (1981) 1SC 6; Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
ENGR. ASUKWO EFFIONG ODIONG Appellant(s)
AND
OBONG IYAMBA EDET EFFIONG OFFIONG Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Plaintiff who is the Respondent to this appeal first instituted an action against the Defendant/Appellant in the Okobo District Court, Okopedi of Akwa Ibom State in Suit No.64/2004 CJB 1/20 and got judgment for an unspecified amount of money. That court made the following order-
“Henceforth the defendant is hereby ordered to do assessment with the plaintiff and pay the plaintiff his money as well as directed by the Chairman Traditional Rulers Council, Okobo. Awarded cost of N500.00 and cost of Writ of N34.00 in favour of the plaintiff…” (See page 4 of Exh. “C” attached to the Motion Ex-parte).
The defendant was later charged before the same District court in Charge JS. No. 6/2004 on 25th August, 2004 for his failure to “carry out the court order of 24/6/2004 that you were ordered to do assessment with the complainant and pay him his money thereby committed an offence under section 203 of the Criminal Code of Nigeria” (See Exh. “D” page 17). The court issued a bench warrant for the arrest of the defendant and adjourned the case to 13/9/2004 for hearing. Exh. “G” attached showed that the defendant paid a total sum of N1,534.00 for absenteeism, Writ and cost awarded in Suit No.64/2004 CJB 1/20. Subsequently the plaintiff brought a motion ex-parte at the Akwa Ibom State High Court, Okobo in Suit No.HOK/33/2006 seeking leave to issue a Writ of summons and to place same on the Undefended List for hearing and determination. It was dated 20th October, 2006 but filed on 6/12/2006. The writ was issued on 12/12/2006 (see page 28 ). The Motion ex-parte was moved and granted on 31/1/2007 and the matter was adjourned to 20th February, 2007 for hearing. On 20/2/2007 the matter was adjourned to 12th March, 2007 for Judgment. There were four adjournments namely 22/3/2007, 2/5/2007, 24/5/2007 before judgment was entered for the plaintiff on 11/6/2007. On all the adjourned dates the defendant was not present in court and there was no order of court that hearing notice be served on him. However the Chief Bailiff swore to an affidavit of service on 8/2/2007 to the effect that he served the Writ of Summons on Engr. Asuquo Effiong Odiong through A.E.O. Bassey (Personal Secretary to the Head of Council) (see page 29). Okokon Okon Attah another Chief Bailiff deposed to affidavit of service of the writ on Okobo Local Government on 18/7/2007 (page 30); then on 20/10/2007 Okokon Okon Atrah, Chief Bailiff deposed to the fact that he served the court order on the Defendant’s solicitor, Richard. The said court order was served on 20/9/2007.
The defendant being dissatisfied with the Ruling and judgment delivered on 31/1/2007 and 11/6/2007 respectively filed Notice of Appeal on 17/2/2009 pursuant to leave of court granted on 9/2/2009 containing four grounds of appeal and distilled the following three issues for determination:
1. Whether the Appellant (as defendant in the trial court) was served with the Writ of Summons in Suit No. HOK/UND 33/06 as contemplated by order 12, Rule 2 of the Akwa Ibom State High Court ( Civil Procedure ) Rules 1989 or in any manner known to law?
2. whether the hearing of suit No. HOK/UND. 33/06 was conducted in such a manner as to guarantee the appellant’s right to fair hearing?
3. whether the jurisdiction of the trial court to hear and determine the suit was ever activated?
The Appellant filed his brief of argument on 15/7/2009. After waiting in vain to see if the respondent will file his brief within the stipulated time of 30days after receipt of the appellant’s brief, he brought an application on 18/2/2010 that the appeal be heard on the Appellant’s brief alone. The application was granted on 28/10/2010. When the appeal was called for hearing, the respondent was absent and did not file any brief. The appeal was argued on the appellant’s brief alone (see Order 17 Rule 10 Court of Appeal Rules 2007).
The Motion ex-parte for the issuance of the Writ was supported with a 27 paragraph affidavit. The respondent who is the Obong Iyamba, (Head of Ekpe society) sued for his stipends, services and homage totaling N431,000.00 per month and obtained judgment in the Okobo District court. At the time the respondent became the Obong Iyamba in 2003, the appellant was the Caretaker Chairman of Okobo Local Government. He said he was suing the appellant to enforce the judgment he obtained in suit No. 64/2004.
The Appellant was supposed to have been sued in his official capacity as Caretaker Chairman of Okobo Local Government. If he had been sued as such, the service of the writ on the Personal Secretary to the Head of council or on the Okobo Local Government would be good service. But the suit having been initiated against his person, only personal service on him will suffice unless an order of substituted service is granted by the court. See: Order 12 Rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules 1987 which provides:
“Save as otherwise prescribed by these rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed without exhibiting the original thereof.”
In ANYOHA v. CHUKWU (2008) 4 NWLR (pt.1076) 31 it was held by Rhodes-Vivour, JCA (as he then was) at page 44 that:
“There must be personal service of the Summons on the defendant in all suits commenced by Writ of Summons.”
From the return date, which was 20/2/2007 to 11/6/2007 when judgment was entered in favour of the respondent there were five adjournment. The appellant was not present in court in any of those dates the matter was adjourned; neither is there anything to suggest that the appellant was at anytime served with any hearing notice. The only option opened to the court was to order hearing notice to be served on him. This court has in several cases reiterated the need to issue hearing notice where parties are repeatedly absent from court. see SAIDU v MAHMOOD (1998) 2 NWLR (Pt. 536) 130; CREDIT ALLIANCE FINANCE SERV. LTD. v MALLAH (1998) 10 NWLR (pt. 569) 341. In SAIDU v MAHMOOD supra Oguntade JCA (as he then was) pointedly stressed the need to issue hearing notice to the defendants who were absent on an adjourned date agreed to by the parties and other subsequent adjournments when he stated at pages 138 – 139 thus:
“I do not fault the lower court for proceeding with the hearing on 6/11/90. But the lower court should have caused hearing notice to be served on the defendants for 4/12/90, 11/12/90 and 23/1/91. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, that the defendants had due notice. This may appear to be an over indulgence of the defendants but I think it is a price that is desirable to pay in the quest to attain maximum justice. Not to have taken this precaution was a mistake on the part of the trial Judge.”
The service of originating processes on a defendant is what clothes a trial court with jurisdiction to hear and determine a matter before it. It is a condition precedent to the exercise of jurisdiction.
See MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; MARK v EKE (2005) 2 FWLR (Pt.259) 1. Since the appellant was not served with the Writ of Summons, it is needless to say that the court’s jurisdiction was never activated not to talk of his being given fair hearing as provided by Section 36(1) of 1999 Constitution.
I wish to observe that the enforcement of a judgment obtained from a court such as in this case is not carried out by initiating another proceedings in another court unless the judgment so obtained has been set aside as a nullity. If the judgment is not set aside, the subsequent proceedings are a nullity and an abuse of the process of the court. What the respondent ought to have done was to apply for a writ of execution to enforce the judgment he got in Suit No. 64/2004.
The initiation of criminal proceedings was also unnecessary. If the District Court Okobo did not know what it was doing, the High Court did not fare better. The documents filed did not warrant the High Court placing the case for hearing on the Undefended List. It is a matter that should have been transferred to the General Cause List.
I find that the appeal has merit and it is hereby allowed. The Ruling and Judgment delivered by the learned trial Judge on 31/1/2009 and 11/6/2009 respectively are declared a nullity since the appellant was not served with the Writ of Summons and hearing notice. The said ruling and judgment are accordingly set aside and the suit struck out. There shall be no order made on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in advance the lead judgment by my learned brother, Akaahs, JCA. I am in full agreement with him that the appeal is meritorious and deserves to be allowed and it is accordingly allowed by me. I am deeply satisfied with the reasoning and conclusion. I also abide by the consequential orders made therein.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the draft of the leading judgment of my learned brother, Akaahs, JCA just delivered.
It is obvious from the record that the Appellant as the Defendant was not present in Court on the dates the lower court heard the case and proceeded to deliver judgment on 11th day of June, 2007.
In the circumstances it was incumbent on the lower court to have ensured that the Appellant was duly notified before proceeding to judgment, Every party in an action in court is entitled to be given a reasonable opportunity of being heard and the best way is for the court to serve hearing notice on the absentee party.
The right to be heard or to be given an opportunity of being heard is a Constitutional right under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, which is itself predicated upon the rule of natural justice requiring that the other side be heard – audi alteram partem.
Failure to comply with these sacrosanct and fundamental principles of fair hearing touches on the competence of the court and the proceedings and any decision arrived at while in breach of the right to fair hearing must be set aside. See Sken Consult vs. Ukey (1981) 1SC 6; Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403.
It is for this and the fuller reasons in the leading judgment that I too allow the appeal and abide by the consequential orders.
Appearances
ANIEKAN AMOS AKPANFor Appellant
AND
Absent and not representedFor Respondent
