ENGINEER SAKA FOLARIN V. LASISI AYANRINOLA & ORS
(2011)LCN/4568(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of May, 2011
RATIO
FAIR HEARING: THE TRUE TEST OF A FAIR HEARING PROCEEDING
The locus classicus on fair hearing is ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR. 424 at 426 where Ademola CJN said as follows – “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in this case.” PER STANLEY SHENKO ALAGOA, J.C.A
RECORD OF APPEAL: CONTENT OF A RECORD OF APPEAL
I have read through the Record of Appeal in this case. A Record of Appeal is supposed to be a compendium of all that transpired in the Court below. Its reliability and importance cannot be over-emphasized. It guides the Justices of the Appellate Courts who were not present in the Court below and so could not have taken down notes of their own to come to a conclusion one way or the other in the determination of matters placed before them. Records should therefore be complete, legible and properly compiled. PER STANLEY SHENKO ALAGOA, J.C.A
SERVICE OF COURT PROCESS: WHETHER SERVICE OF COURT PROCESS IS FUNDAMENTAL TO THE ASSUMPTION OF JURISDICTION BY THE COURT OVER THE MATTER BEFORE IT
It has to be emphasised on the issue of service of court processes that such service is fundamental to the assumption of jurisdiction by the court over the matter before it. And failure to serve the necessary court processes to kick-start the proceedings renders the proceedings null – see Auto Import Export v. Adebayo and others (2002) 12 SCNJ 124 at 140- 141 thus: “Now it is well settled that service of a writ of summons or process is a condition precedent to the exercise of jurisdiction by the court out of whose Registry the writ or process was issued??.. Under our adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process except in a proper ex parte proceeding would render the trial a nullity as service of the court’s processes are basic and indispensable to any effective adjudication. Where, as in the present case, service of process is required, failure to serve it is a fundamental vice and the person affected by the order but was not served with the process, again as in the present case, is entitled ex debito…………justitiae to have the order set aside as a nullity…………Failure to serve a Process where service is required goes to the root of proper conceptions of recognised procedure of litigation. It is a fundamental vice which renders null and void an order made against the party who should have been served as the idea that an order can validly be made against a party who has no notification of the action against him is one that is clearly undesirable and, indeed, unacceptable in our judicial system. See Management Enterprises Ltd. v. Otusanya (1987) 3 NWLR (Pt. 55) 179. PER STANLEY SHENKO ALAGOA, J.C.A
STANLEY SHENKO ALAGOA, J.C.A (Delivering the Leading Judgment): In the High Court of Justice Ibadan Oyo State of Nigeria, the present Respondents as Plaintiffs claimed against the Defendants jointly and severally as follows –
(i) A Declaration that the Plaintiffs are the persons entitled to the statutory rights of occupancy over all that parcel of land lying, situate and being at Fagbohun Akayepe family land, Agbeni Area, Ibadan and measuring in the 1st part 3724, 441 m2 and in the 2nd part 742.998 m2 and bounded on the left by the Bankole family land and on the right side by Olosun land and further more at the rear by the Ile Olosun and Ile Agani land; while in front there exist a major road after which is the 2nd part of the land as aforesaid and in front of which flows the Odo-Ado river which runs along the Ile Ado land.
(ii) An Order of perpetual injunction restraining the 1st and 2nd Defendants from selling, dissipating, letting, alienating or otherwise dealing in any manner whatsoever with the Plaintiffs’ land as described herein.
(iii) An Order of declaration that every prior act of selling, dissipating, letting, alienating or otherwise dealing in any manner whatsoever of the Plaintiffs land as aforesaid by the Defendants is unlawful, null and void and of no effect whatsoever.
(iv) The sum of N500, 000.00 (Five Hundred Thousand Naira Only) against the 1st and 2nd Defendants jointly and severally as general damages for acts of trespass committed on the aforementioned.
(v) An interest rate of 21% on any sum awarded against the Defendants from the date of judgment until the entire judgment sum is liquidated by the Defendants.
The Plaintiffs’ case as can be gleaned from the statement of claim is that they are the principal members of the Akayepe family. They averred that one Ifagbohun Akayepe and one Baale Olosun were the first settlers and occupiers of a vast area of land around Agbeni area including but not limited to the land in dispute. Ifagbohun Akayepe was a warrior who fought many battles including and particularly a battle to claim the said piece of land in dispute over 150 years ago. Ifagbohun Akayepe formed the Akayepe compound on the land in dispute from his name after his victory at the said battles and after having settled down on the land in dispute. Ifagbohun Akayepe begat Salami Ayanrinola; Opadeji and Ayinki who were his male children among other children.
The Plaintiff averred that the land in dispute was acquired by Ifagbohun Akayepe as aforesaid and he, Ifagbohun Akayepe being the great grandfather of the existing Akayepe family, the said land in dispute devolved on the children of Akayepe from one generation to another from the time of acquisition by Ifagbohun Akayepe as aforesaid. The Plaintiffs further averred that sometime in 1939 one John Holt (a foreign national) met one Oniyo and that he wanted the said Oniyo to assist him to get a piece of land to build a store at Agbeni area of Ibadan. Subsequently the said John Holt in the company of the said Oniyo met with the aforesaid Salami Ayanrinola the father of the plaintiffs over the land in dispute and consequently a written agreement (exhibit C) was made between John Holt and Salami Ayanrinola in the presence of Oniyo. Sometime in 1955 the said John Holt relocated to his country of origin and consequently one Solaja who was then a secretary or an assistant to John Holt approached the same Oniyo who had acted as a go-between for Mr. John Holt and Salami Ayanrinola in 1939 when the land was given out for the use of John Holt.
The Plaintiffs averred that the said Oniyo accompanied Solaja to the house of the same Salami Ayanrinola who was the father of the 1st, 2nd & 3rd Plaintiffs aforesaid. The Plaintiffs averred that Solaja and Salami Ayanrinola both agreed in the presence of Oniyo that Solaja phould use the said land on condition that the said Salami Ayanrinola (Plaintiff’s father) could claim his land back anytime he wanted to use it because he had not sold the land to Solaja. Subsequently the said Solaja used the stores on the said land for the business of selling roofing sheets and provisions. The Plaintiffs averred that few years later Solaja started to pay a monthly sum of GBP I.2 Shillings as rent for the use of the said piece of land until about 1967 when Salami Ayanrinola died. After the death of Salami Ayanrinola, plaintiff further averred, the rent payable was reviewed to a yearly sum of the equivalent of N500.00 which sum was paid to and collected by the 2nd plaintiff until Solaja died.
Sometime in 1990 and thereafter after the death of Solaja, Solaja’s children particularly the 1st & 2nd Defendants continued to occupy parts of the land but neglected to pay the rents as their late father did. The Plaintiffs further averred that sometime in 1999 some persons whose names could not be ascertained came upon the land in dispute and started using same as stores and for the selling of dye. Investigations by the Plaintiffs showed that the 1st & 2nd Defendants were the persons who had let out parts of the land in dispute to the unknown persons. The Plaintiffs further averred that the Akayepe family being so disturbed about the attitude of the 1st and 2nd Defendants reported same to one Alhaji Busari Ajiboye Osuntoki of Olosun compound who subsequently convened two separate meetings at the instance of both families requesting for concrete evidence of proof of title of the Solaja family over the land in dispute and which proof the 1st & 2nd Defendants failed to produce. The Plaintiffs further averred that as the Plaintiffs could no longer tolerate these acts of trespass by the 1st & 2nd Defendants they instructed their Solicitors to write to the 1st & 2nd Defendants to surrender the land in dispute to the plaintiffs being the bona fide owners of the land in dispute.
The plaintiffs have erred that despite all efforts by them (the plaintiffs) to stop the 1st & 2nd Defendants from committing further acts of trespass on the Plaintiffs’ land, the 1st & 2nd Defendants have continued with their acts of trespass on the plaintiffs’ land hence the Plaintiffs are seeking the reliefs stated above.
The writ of summons and statement of claim are contained at pages 1-6 of the Record of Appeal. The 1st Defendant filed a Memorandum of Appearance and Statement of Defence which are contained at pages 9 and 10 of the record of Appeal. Record of the Court for the 17th May 2002 as contained at page 11 of the Record of appeal shows that all the Plaintiffs were present while the Defendants were absent.
K. K. Sulaiman appeared as Counsel for the Plaintiffs while Mr. O. Ojofeitipi appeared as Counsel for the 1st Defendant. He intimated the Court that the 1st Defendant had filed a defence and that he had been informed that the 1st Defendant was dead and he applied to withdraw from the case. Mr. Sulaiman for the Plaintiffs said he was only just hearing that the 1st Defendant is dead and since there is proof of service on the 2nd Defendant, Mr. O. Ojofeitimi only appearing for the 1st Defendant, he (Mr. Suleiman) should be allowed to prove his case against the 2nd Defendant. On Mr. Ojofeitimi’s request that since the defence of the 1st Defendant is futile he should be allowed to withdraw from the case, the Court allowed Counsel to withdraw from the case and struck out the name of the deceased 1st Defendant from the suit and adjourned the case to the 13th June 2002 for hearing.
The Court’s Record for the 13th June 2002 also at page 11 of the Record of Appeal shows that the Plaintiffs were present while the Defendants were absent. K. K. Sulaiman appeared as Counsel for the Plaintiffs. Notes from the Court say that the name of the 1st Defendant had been struck out of the suit because he is dead. The Notes also say that the 2nd Defendant had been served and that there was proof of such service in the file and that he was in Court on the last date of hearing and was not in Court despite being served and despite being in Court when the case was adjourned to the 13th June 2002. Mr. Sulaiman urged the Court to allow him proceed with his case as the 2nd Defendant had neither entered a memorandum of appearance nor filed a defence. The case then proceeded to be heard with the plaintiff calling two witnesses PW1 Lasisi Ayanrinola and PW2 Lasisi Opedeyi after which the plaintiffs’ Counsel K. K. Sulaiman addressed Court and in its judgment delivered on the 23rd July 2002, the Court found in favour of the Plaintiffs in terms of the Plaintiffs’ claim except for the claim for 21o/o interest which according to the Court was not proved by the plaintiffs. It is this judgment that is the subject of this appeal for which a Notice of Appeal dated 25th October 2004 has been filed. Contained at pages 25-28 of the Record of appeal, it consists of six Grounds of Appeal which are stated below –
GROUNDS OF APPEAL
The learned trial judge erred in law and acted without jurisdiction when he adjudicated on the Plaintiffs’ claim without hearing the person who are to be affected by her judgment.
2. The learned trial judge acted without jurisdiction when he entertained a case seeking declaration of title, damages and injunction against unknown persons when she had no statutory powers so to do under the laws of Nigeria, and the rules of Court.
3. The learned trial judge erred in law and in breach of the Nigerian Constitution, when ‘she denied the Appellants a hearing in the matters affecting their interests, and thereby occasioned miscarriage of justice.
4. The learned trial judge misdirected herself when she held that “The writ of summons and statement of claim filed on 6th of August, 2001 were duly served on the Defendants as evidenced by the affidavits of service dated 28th September, 2001”.
5. The learned trial judge stated the law correctly but misapplied it to the facts of this case when she said that “it is settled law that where evidence given by a party to any Proceeding was not challenged by his opposite party who had opportunity to do so, it was open to the Court seized of the proceedings to act on the unchallenged evidence”.
6. The learned trial judge erred in law ‘when she heard and determined the case against the unnamed persons sued as “Persons Unknown” without their having been served with the necessary notice of the hearing of the case.
From the six grounds of appeal contained in the Notice of Appeal the Appellants have formulated the following five issues for the determination of this Court –
1. Whether the trial Court had jurisdiction to entertain action seeking declaration of title, damages for trespass and injunction against unknown persons in the absence of any statutory Powers so to do under the Constitution, the High Court Law or the High Court Civil Procedure Rules of Oyo State. (Ground 2 of the Grounds of Appeal).
2. Whether the trial Court had jurisdiction to entertain the claims of the Plaintiffs/Respondents when there were no materials before it to show that any of the Defendants (other than the 1st Defendant who had died before the commencement of the proceedings) had been properly served with the Writ of Summons and Statement of Claim, and whether the decision to proceed to hearing in the absence of the Defendants was justified by the records of the Court. (Grounds 1 and 4).
3. Whether it was competent for the Court to adjudicate on civil causes affecting the interests of the Appellants without affording them opportunity of a hearing by joining them as parties to the case when there were materials before the Court showing that the Appellants were persons whose proprietary interests would be prejudicially affected by the decision of the Court (Ground 3).
4. Whether it was a proper direction by the trial Court to hold itself justified to act on the evidence of the witnesses for the Plaintiff alone on account of the Defendants having failed to utilize the opportunity given them to defend the case when in fact and in law no such opportunity was given to the Defendants/Appellants (Ground 5).
5. Whether in all the circumstances of the case, the right of the Appellants to fair hearing as enshrined in the constitution and the rules of natural justice were not breached in the proceedings leading to the judgment (Grounds 5 and 6).
These issues are contained at pages 11 and 17 of the Appellants, Brief of Argument dated the 30th June 2009 and filed same day. The Respondents for their part have distilled the following three issues for the determination of this court at pages 6 and 7 of the Respondents’ Brief of Argument dated the 20th October 2010 and filed on the same day. The issues are as follows-
a) Whether the trial court is empowered by any statutes, law or enabling instrument conferring jurisdiction on it to entertain action seeking declaration of title, damages for trespass and injunctions against all Persons.
(b) Whether the right of fair hearing of the Appellant was breached in the proceedings having failed to utilize the opportunity given them to defend the case.
(c) Whether the learned trial Judge was justified to act on the evidence of the witnesses for the Plaintiffs alone on.
The Appeal came up for hearing on the 3rd March 2011 with the respective counsel adopting and relying on their Briefs of Argument.
Ayodeji Esan with him O. Aken’Ova urged us to allow the appeal and set aside the Judgment of the trial High Court while Olugbenga Dosumu Counsel for the Respondent urged us to dismiss the appeal and affirm the judgment of the trial Court below. After a careful consideration of the issues formulated by the Appellant and Respondents I think the proper issues for the determination of this appeal are as follows –
1. Whether the trial Court had enough materials before it to show that the Defendants had been properly served with the writ of summons and statement of claim before proceeding to hear and determine the case.
2. Whether the Rights of the Appellants to fair hearing as enshrined in the Constitution and the rules of Natural Justice were not breached in the proceedings leading to the judgment.
3. Whether the trial Court is empowered by any statutes, law or enabling instrument conferring jurisdiction on it to entertain action seeking declaration of title, damages for trespass and injunction against all persons.
4. Whether the learned trial Judge was right to have acted on the Evidence of the Respondents alone regard being had to all the circumstances of the case.
Interestingly these are no new issues but the very issues formulated by the Appellant and Respondents themselves which have just been re-arranged.
I consider Issues 1 and 2 so related to each other that they can conveniently be taken together. Appellant referred to the affidavit of service on the 1st & 2nd Defendants dated 28th September 2001 which the Court relied upon in coming to the conclusion that the Defendants were served with the writ of summons and statement of claim. The affidavit states as follows –
“I Adeniyi Amusa, Bailiff of the High Court of Justice, Ibadan make oath and say that on the 28th day of September 2001 at 10.00 a.m. O’clock. I served upon 1st & 2nd Defendants through the Alhaji Solaja compound a Writ of Summons and Statement of Claim, a true copy whereof is hereunder annexed, issued out of this Court at High Court of Justice Ibadan upon Defendants upon the complaint of Plaintiff by delivering the same personally to Alhaji Kolapo Solaja at Solaja Compound Idi Arere, Ibadan. Before the day I served the summon and statement of claim, I did not know the Defendant personally but after he was pointed to me by Plaintiff, I asked him if he were and he said he was.”
Counsel for the Appellant has submitted that from this affidavit it is clear that only the 1st Defendant Alhaji Kolapo Solaja was personally served with his copy of the writ of summons and statement of claim while the purported service on the named 2nd Defendant was effected by handing it to the 1st Defendant Alhaji Kolapo Solaja. This is a crucial point in this issue, the authenticity of which needs to be ascertained. Service of process is a main pillar in any proceedings before one can talk of fair hearing. Where a writ of summons and statement of claim are concerned, service must be at the very foundation to fair hearing. What I understand the Appellants to be alluding to is that Adeniyi Amusa the Court Bailiff’s affidavit of service of the writ of summons and statement of claim purportedly served on the 28th September 2001 was to the 1st Defendant Alhaji Kolapo Solaja only to whom these processes were served personally and the purported service of the writ of summons and statement of claim on the 2nd Defendant couldn’t have been correct as the 2nd Defendant was not served personally. The locus classicus on fair hearing is ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR. 424 at 426 where Ademola CJN said as follows –
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in this case.”
The Court bailiff’s affidavit of service dated the 28th September 2001 is not contained in the Record of Appeal but reference has been made to it by the Respondent in his Brief of Argument as well as by the trial Judge in the judgment and so its existence is not in doubt but does that affidavit not say that the writ of summons and statement of claim were served on the 2nd Defendant through the 1st Defendant? Does it say that the 2nd Defendant was served with these processes personally?
With the striking out of the name of the 1st Defendant as a result of his death who could be sure that the 2nd Defendant was served with these processes? The Appellant has alluded to the fact that such a service couldn’t have taken place by reference to the statement of defence of the 1st Defendant paragraph 4 of which states as follows –
“The Defendant states that nobody bears the 2nd Defendant’s name in Solaja family.”
No attempt however has been made elsewhere in the Respondents’ Brief of Argument to deny the contention of the Appellants that the writ of summons and statement of claim which are referred to in the affidavit of service by the bailiff on the 28th September 2001 were served personally only on the 1st Defendant Alhaji K. Solaja and not on the 2nd Defendant personally. Appellants’ contention is therefore deemed admitted. The affidavit clearly stated that those processes (writ of summons and statement of claim) were to be served on the 2nd Defendant through the 1st Defendant. Could this have been good service and if not could any proceedings on such service have been fair and proper? Respondent has submitted that where a party was given an opportunity to present his case and fails or neglects to do so he cannot be heard to complain of a breach to his right to fair hearing. He relied on A.S.R. CO. LTD. V. O.O. BISAH & CO LTD. (19970) 11 NWLR (PART 527) 145 at 158 and KADUNA ILES LTD. V. UMAR (1991) 1 NWLR (PART 319) 143, 159 where it was stated that –
“Where a party in a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation he fails or neglects to attend the sitting of the Court the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or partner as well as the Court that a recalcitrant defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even-handed for the law is no respecter of persons.”
The question is whether this is the position here? Aside from the affidavit of service of the Court bailiff of the 28th September 2001, I have read through the Record of Appeal in this case. A Record of Appeal is supposed to be a compendium of all that transpired in the Court below. Its reliability and importance cannot be over-emphasized. It guides the Justices of the Appellate Courts who were not present in the Court below and so could not have taken down notes of their own to come to a conclusion one way or the other in the determination of matters placed before them. Records should therefore be complete, legible and properly compiled. Reliance on the compiled Record does not show convincing proof that the 2nd Defendant was served with the writ of summons and statement of claim. There is nothing in the Record of Appeal to show that the 2nd Defendant was ever present in Court. The proceedings of Court for the 17th May 2002 show that the 2nd Defendant was neither present nor represented by Counsel when the matter was then adjourned to the 13th June 2002 for hearing. The Court’s notes for the 13th June 2002 states as follows –
“He (2nd Defendant) is not in Court today despite being duly served and despite being in Court when today’s date was taken.”
(Underlining mine for emphasis.)
This is a clear misrepresentation of facts because the Court Records for the 17th May 2OO2 clearly shows that the 2nd Defendant was not in Court. As correctly observed by Counsel for the Appellant the learned trial Judge may not have checked her record and completely believed what Counsel for the plaintiff Mr. K. K. Sulaiman told her. Counsel as officers of Court have a duty to assist Courts in whatever way they can in the dispensation of justice. They should never conceal facts simply because such facts are unfavourable to them to gain an unfair advantage over the other side. When they do they may be found worthy in learning but certainly not in character which is the hallmark of a complete gentleman. In OKOYE V. C.P.M.B. LTD. (2008) 15 NWLR (PART 1110) 335 at 359, it was held that –
“Where any doubt as to whether or not service of a Court process was or was not properly effected exists, a judgment obtained by a party to a suit in the absence of the other party to a suit has to be set aside to ensure that both parties are heard.”
In KIDA V. OGUNMOLA (2006) 13 NWLR (PART 997) 377 at 394 it was held that –
“Service of a process on a party to a proceeding is crucial and fundamental. Failure to serve a process where service of process is required is a fundamental vice. It deprives the trial Court the necessary competence and jurisdiction to hear the suit. In other words the condition precedent to the exercise of jurisdiction would not have been fulfilled.”
See also CEEKAY TRADERS V. GENERAL MOTORS CO. LTD, (1992) NWLR (PART 222) 132; BAMAIYI V. STATE (20011 I NWLR (PART 715) 270; KOTOYE V. CBN (1989) 1 NWLR (PART 98) 419; ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (PART 75) 201.
There is undoubtedly a plethora of case law on the subject of service of processes of Court in relation to the issue of fair hearing but the ones highlighted above will suffice. With the determination of this issue in favour of the Appellant, the other issues have become only of academic interest and it makes little sense for me to go ahead and discuss them. The Appeal succeeds and the Judgment of Esan J. delivered on the 23rd July 2002, in Suit No. 1/760/2001 is hereby set aside. There shall be N30, 000.00 (Thirty Thousand Naira) costs in favour of the Appellant against the Respondents.
SIDI DAUDA BAGE J.C.A: I have read before now the judgment just delivered by my learned brother, S.S. ALAGOA, J.C.A. The issues raised in the appeal have been dealt with in detail.
I entirely agree with the reasoning and conclusion arrived at, that the appeal succeeds and is allowed by me.
I abide by all the consequential orders made in the said lead judgment including the order on costs.
JOSEPH SHAGBAOR IKYEGH: I had the privilege of reading in draft the comprehensive judgment prepared by my learned brother, ALAGOA, J.C.A., with which I agree with these few words.
The record of the court below stated in page 11 thereof inter-alia that:
“The plaintiffs are present. Defendants absent, K.K Suleiman for the plaintiffs.
Note: Says that the name of the 1st defendant had been struck off the suit because he is dead.
The 2nd defendant has been served. There is proof of service in the file. He was in court on the last date of hearing as he is known personally by the plaintiffs. He is not in court today despite being duly served and despite being in court when today’s date was taken.
Counsel urges the court that he wants to proceed with his case as defendant did not enter memo of appearance or file a defence”
The court below relied on the above information to proceed with the hearing of the suit to conclusion in the judgment it delivered against appellant. It turned out counsel misled or misinformed the court below of the true state of affairs on the service of the court processes on the appellant.
In my respectful view, the court below ought to have been circumspect in relying solely on the say-so of counsel at Bar on the service of the court processes on appellant in proof of the service. The primary source to verify and establish service of court processes is the affidavit of service duly deposed to by the bailiff of the court that effected the service. Counsel’s word in respect of it would not suffice or carry any weight- see Societe General Bank (Nig) Ltd. v. Adewunmi (2003) 4 SCNJ 146 at 155, where the lead judgment of the great jurist, Kastina-Alu, J.S.C. (now C.J.N.) held:
“….it will be seen clearly that there was no affidavit of service, I say so because none was produced. The learned trial Judge had a duty to demand to know whether his order for substituted service was complied with. Evidently he did not.
He took the ipse dixit of the learned counsel for the plaintiff that “the defendant was duly served” as proof of due service. In the absence of an affidavit of service, it cannot be seriously contended or concluded that the defendant knew of the proceedings of that day.
It has to be recognized that the purpose of an affidavit of service is to convince the court that the person, on whom the processes are to be served, has been duly served. It must be produced before the learned trial Judge as prima facie evidence of service.”
It is unfortunate that counsel either wittingly or unwittingly misinformed the court below that appellant was duly served. Counsel, as an officer of the court, owed the court the professional duty of presenting accurate facts to the court – see Alhaji Mohammed Sani Abacha and Others v. The State (2002) 7 SCNJ 1 at 48 per Onu, J.S.C., thus;
“Facts which are sacred must be put before the court (by counsel) in an accurate a manner as possible”.
See also in Re: Certain Legal Practitioners (1960) 5 F.S.C. 233, where the then Federal Supreme Court held that counsel’s duty to the court is so paramount that counsel should have intervened to correct an inaccurate version of event given to the court by a co-accused. Then in Akpan Umo v. Asam Udo (1923) 5 N.L.R. 90, it was held by analogy that it is the duty of counsel acting for a party to see that order made by the court is correctly drawn up. See further Tukur v. Government State (1889) 4 NWLR (pt 117) 517 544, per Obaseki, J.S.C.
It has to be emphasised on the issue of service of court processes that such service is fundamental to the assumption of jurisdiction by the court over the matter before it. And failure to serve the necessary court processes to kick-start the proceedings renders the proceedings null – see Auto Import Export v. Adebayo and others (2002) 12 SCNJ 124 at 140- 141 thus:
“Now it is well settled that service of a writ of summons or process is a condition precedent to the exercise of jurisdiction by the court out of whose Registry the writ or process was issued……..
Under our adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process except in a proper ex parte proceeding would render the trial a nullity as service of the court’s processes are basic and indispensable to any effective adjudication. Where, as in the present case, service of process is required, failure to serve it is a fundamental vice and the person affected by the order but was not served with the process, again as in the present case, is entitled ex debito…………justitiae to have the order set aside as a nullity…………Failure to serve a Process where service is required goes to the root of proper conceptions of recognised procedure of litigation.
It is a fundamental vice which renders null and void an order made against the party who should have been served as the idea that an order can validly be made against a party who has no notification of the action against him is one that is clearly undesirable and, indeed, unacceptable in our judicial system. See Management Enterprises Ltd. v. Otusanya (1987) 3 NWLR (Pt. 55) 179”.
It is for the above reasons and the more elaborate reasons in the judgment of his Lordship, ALAGOA, J.C.A that I too would allow the appeal and abide by the consequential orders contained in the said judgment.
Appearances
Ayodeji Esan Esq. with him O.Aken’Ova Esq.For Appellant
AND
Chief Bolaji Ayorinde (SAN)For Respondent
