PATRICK CHUKWUDEBETU ODELUGA & ORS V. CHIEF CHRISTOPHER OFILI UDO & ORS
(2013)LCN/6154(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2013
CA/E/97/2009
RATIO
COURT: WHETHER A LITIGANT’S ACTION CAN BE CHALLENGED DUE TO ANY ADMINISTRATIVE LAPSE ON THE PART OF THE OFFICERS OF THE COURT.
Litigants do not assess themselves before the payment of court fees, court fees are paid as duly assessed by court officials. In the instant appeal the appellants have paid the assessed fees, the appellants cannot be punished for the difference if any between the prescribed fee and the assessed fee. I am in agreement with learned counsel for the appellants that where a litigant had done all that the law required of him to commence his action such an action endures in spite of any administrative lapse on the part of the officers of the court. See C.B.N V. ADEDEJI; OGBUANYINYA V. OKODO (NO. 2) SUPRA; DIKE v. OKORIE (SUPRA). Beside insufficiency of payment of filing fees will not invalidate the proceedings of the court or oust its jurisdiction especially where the non-payment is not unintentional, unpremeditated by the litigant but rather traceable to the fault of the officers of the court. It is my firm view that this type of technicality raised in the instant appeal should not be allowed to defeat or affect the end of justice. The supreme court through OPUTA JSC aptly captured the situation in ALIU BELLO & 13 ORS V. A.G. OYO STATE (1986) 5 NWLR (PT 45) when it states: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms and formalities nor is the triumph of the administration of justice to be found in the successful picking one’s way between pitfalls of technicality”. Per. ABUBAKAR JEGA ABDUL-KADIR, J.C.A
COURT: THE EFFECT OF NON-SERVICE OF PROCESS IN A MATTER BEFORE THE COURT
The service of process in a matter before the court is critical not only as to its fair hearing but as to the exercise of the court’s jurisdiction over the matter. Thus, failure to serve a process, where service is required, goes to the root of the action. It is treated not as a mere irregularity but a fundamental defect which is incapable of sustaining any order of judgment based upon it. In the instant case, there was no service of all the processes and this rendered the proceeding at the trial court defective and liable to be set-aside. See SKENCONSULT (NIG) LTD V. UKEY (1987) 1. SC. 6. Per. ABUBAKAR JEGA ABDUL-KADIR, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. PATRICK CHUKWUDEBETU ODELUGA
2. ISHMAEL NWEKE NWANSIOBI
3. JOHN CHUKWUNENYE UME
4. CLEMENT EMODI
5. RICHARD AGU
6. LAZARUS ENEMUO
7. JOAKIN NWEKE EZEAKAJIOBI
8. FREDERICK IFEDIBA IZEGBUE
9. SAMUEL ORAEKWUOTU
10. GABRIEL CHINEMELUM ONOCHILI
11. OZOEMENA OKEKE
12. INNOCENT AGUOBI
13. BONIFACE OKONKWO MADUEKWE
14. FREDERICK ASIEGBU
15. EDWARD AKANEGBU
16. EMMANUEL AKANEGBU
17. WILFRED AKANEGBU
18. EMMANUEL IGWILO
19. FREDERICK OKEKE
20. IFEANYICHUKWU OBI
21. BONIFACE OBI
22. LINUS AGHA
23. JOSEPH AKUNNA
24. PATRICK IBEH
25. MRS. SUSANNA C. EZENWA
26. CHIEF FELIX ONOCHIE
27. JOHN OLUM
28. CHIKA BENNIAH OKPALA
29. PAUL IZUEGBU
30. GODFREY EZIAGBALA
31. GREGORY EZIAGBALA
32. LAWRENCE CHUKWUMA ANOLIEFO
33. EMMANUEL OBICHILI
34. ROMANUS EZEANI
35. CHARLES ONUSELOGU
36. EDMUND EGEONU
37. FELIX OKAGBE
38. FREDERICK OKAGBA
39. THOMAS AZOBO
40. ERNEST OTUBELU
41. CHRISTOPHER OTUBELU
42. PAUL AKPU
43. FRANCIS O. ONUORAH
44. JOHN IFEANYI EMEONE
45. PASTOR GODWIN ORAFU
46. FELIX OKOYE
47. RAPHAEL OKONKWO
48. MATHEW OKONKWO
(for themselves and on behalf of other trespassers on Okofia land) Appellant(s)
AND
1. CHIEF CHRISTOPHER OFILI UDO
2. ORIMILI BILL IWENOFU
3. DUBEM NWACHI IKENNA
4. OKUNWA OKWUDI MBA
(substituted for Chief Edward Ibisi, Ozonma Joseph Mbah, Ezenwa Paul Iweanya and Osita Ibegbu) by order of court on 10/3/2011 (for themselves and on behalf of Umuorezeabo family or Umudei Village, Onitsha) 1ST SET OF
RESPONDENTS
AND
1. THOMPSON UZOEGWU
2. PAUL UZOEGWU
3. JAMES N. EJIKEME
4. NDULAJI MOZIE
5. AKUNNE ALBERT OKAGBUE
6. PIUS MOZIE
7. HENRY ENEKEBE
8. ALBERT OGHAM
9. SYLVESTER AKANNE
10. IZUEGBUNAM OBIAKO
11. EMMANUEL ADIBUA EZEME
12. MATHIAS O. AJEMBA
13. PAUL OKONGWU
14. BASIL OKONGWU
15. PETER UDEGO
(for themselves and on behalf of the people of Nkpor) 2ND SET OF
RESPONDENTS Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A (Delivering the Leading Judgment): This appeal was brought to this Honourable Court vide Notice of Appeal dated 5/4/2006 and filed on 7/4/2006 pursuant to the order of this Honourable Court on 3rd April, 2006 granting the Appellants’ application for extension of time to appeal against the judgment of the lower court as delivered by Hon. Justice C.O. Nweke of High Court of Justice Anambra State sitting at Onitsha on 7th April, 2004. The Notice of Appeal which gave life to the instant appeal is found at pages 217 to 226 of the record of appeal.
The historical background of this lingered litigation is briefly epitomized below.
The 1st set of Respondents in this appeal were the plaintiffs on record at the lower court. They commenced an action by civil summons on 9/12/83 at the Onitsha High Court of Justice against 2nd set of Respondents and the Appellants in this appeal. The Reliefs of the 1st set of Respondents sought against the Appellants and the 2nd set of Respondents (who were both Defendants at the lower court) are herein below set out for ease of reference.
(i) A declaration that the people of Nkpor have forfeited their right as seasoned farming tenants on the plaintiffs’ Okofia land.
(ii) N2000, 000.00 damages for trespass.
(iii) An order of injunction restraining the defendants, their servants and agents or any person claiming through them from entering or remaining on the plaintiffs’ Okofia land or from doing anything thereon or from in any manner whatsoever interfering with the plaintiffs rights of ownership and possession of the said land.
In the original structure of the case at the lower court, the 1st set of Respondents in this appeal were the Plaintiffs. The 2nd set of the Respondents were the 1st set of Defendants on record while the Appellants were the 2nd set of Defendants.
The trial Judge in his judgment of 7th April, 2004 ruled in favour of the Plaintiffs (herein simply referred to the 1st set of Respondents against the Appellants and the 2nd set of Respondents. The Appellants being aggrieved with the decision of the lower court initiated this appeal upon heavy reliance on the fact that they were shut out during the proceedings that gave vent to the judgment under review.
In compliance with the rules of this court, the parties filed, exchanged and adopted their briefs of argument in support of their respective positions in the matter. The Appellants’ Brief of Argument dated 30th May, 2011 and filed on 10th June, 2011 was settled by F.J. ONIEKORO ESQ. The Respondents’ Brief of Argument for the 1st set of Respondents dated 18th July, 2011 and filed on 18th July, 2011 was settled by V.A. IKEME ESQ. The Appellants’ Reply Brief of Argument dated 27th July, 2011 was settled by F.J. ONIEKORO ESQ. The Appeal was taken on 4th February, 2013 and reserved for judgment on the same date.
The Appellants formulated six (6) issues for determination in this appeal. The issues are stated thus:-
ISSUE 1
Whether the appellants were not denied right to fair hearing this case at the trial court? (grounds 1, 2, 3, 4, 11, 20, 23).
ISSUE 2
Whether the trial court was right in admitting and relying on survey plans, allegedly tendered and admitted as exhibits in the previous Suit, in the judgment against appellant (sic)? (grounds 5, 9)
ISSUE 3
Whether the trial court was right when it relied on two previous judgments in which t he appellants were never parties to determining the present Suit? (grounds 7, 8, 10, 17, 19.
ISSUE 3
Whether the trial court was right in admitting and relying on evidence not pleaded; and relying on facts pleaded by the 1st set of respondents, but not proved by them in the judgment against appellants? (grounds 5, 6, 13, 14, 15, 21 and 22)
ISSUE 5
Whether the trial court was right in admitting evidence of superimposition of Survey Plans No. EC.1/51 and No. EC.1/57 on Survey Plan No. MEC/1036/86 to conclude the land in the previous suits where these plans were tendered and the one in dispute in the current suit are the same (ground 14)
ISSUE 6
Did the 1st set of respondents prove their claim of declaration of forfeiture? (grounds 13, 15 , 16 and 22)
The 1st set of respondents formulated two issues for determination. The issues are stated thus:-
1. Whether the Appellants and the 2nd set of respondents were aware of this suit and were represented by counsel?
2. Whether the 1st set of respondents proved a case of forfeiture against the appellants and the 2nd set of respondents in respect of Okofia Land in dispute.
The issues as formulated by the Appellants will be adopted in the determination of this appeal.
In this appeal learned counsel to the 1st set of Respondents raised preliminary objection with respect to the Appellants and 2nd set of respondents’ failure to pay the appropriate statutory filing fees for their respective notices of appeal. He refers to order 1 Rule 5 of the third schedule of the Court of Appeal Rules, 2002 which provides that the fee on filing notice of appeal against a final judgment is N500.00. He refers to pages 226 and 243 of the record of appeal showing the fee paid for each of the two notices of appeal filed on 7th day of April, 2006 is N350.00. He contends that the failure of the Appellants and the 2nd set of Respondents to comply with the rules of court on payment of appropriate filing fees is fatal and the jurisdiction of the court is thereby ousted. Learned counsel referred to:
1. DAN ZARIA PADA & ANOR V. MAMMAN NAOMI & ORS (2002) 4 NWLR (PT 757) 318 at 331.
2. SEVEN UP BOTTLING CO. LTD V. ALHAJI TIJANI YAHAYA (2001) 4 NWLR (PT 702) 47 at 53.
3. LADEJO ONIFADE V. ALHAJI ALIMI OLAYIWOLA & ORS (1990) 7 NWLR (PT 161) 130 at 166.
4. ALHAJI ALFA ADEHI V. ATULUKU ATEGA & ORS (1995) (pt 398) 656 at 666.
5. ALIMI AKAMBI DADA V. CHIEF JONATHAN DOSUMU (2006) 18 NWLR (PT 1010) 134 at 166
6. CLEU JOSH LTD & ORS V. ELDER OLANIRAN IFEOLUWA TOKIMI & ORS (2008) 13 NWLR (PT 1104) 422 at 442 TO 443.
7. ALHAJI DABO KANKARA V. COMMISSIONER OF POLICE, KATSINA STATE & ORS (2002) 13 NWLR (PT. 785) 596 at 661.
In his response to the submissions of counsel to the 1st set of Respondents on the preliminary objection, counsel to the Appellants submits that the preliminary objection of the 1st set of Respondents is an abuse of the process of this court. Having been earlier raised by the 1st set of Respondents and was overruled by this court when the application for extension of time to file their brief of argument was moved that it is brought mala fide. It is frivolous, vexations and oppressive. That it is he employment of judicial processes to the irritation and annoyance of the appellant, and to distort efficient and effective administration of justice in this appeal. Counsel referred to S.P & ASSOCIATES LTD V. MARCH RICH & Co. A.G. (2003) FWLR (PT. 177) 922 ALHAJI OPEKON V. ALHAJI SADIQ & ORS (2003) FWLR (PT 150) 1654; HARIMAN V. HARRIMAN (1989) S NWLR (PT 119) 6; OKORODUDU V. OKOROMADU (1977) 3 SC 21.
Further counsel for the Appellants submits that the issue raised by way of preliminary objection lacks merit and should be dismissed. He cited the case of CBN V. ADEDEJI (2004) 13 NWLR (PT 890) 226. OGBUANYINYA V. OKUDO (NO 2) (1990) 4 NWLR (pt 146) SSI. DIKE V. OKORIE (1990) S NWLR (PT 151) 418.
Counsel to the Appellant argued that his clients paid the filing fee upon due assessment by an officer of the court. He contends that the wrong or inaction of the court official should not be visited on the Appellants reference made to AGUSIOBU V. ONYEKWELU (2003) 6 FR 22 RATIO 6. Further counsel argues that insufficient payment of filing fees will not invalidate the proceedings of the court especially where non-payment is unintentional, unpremeditated by the litigant but rather traceable to the faults of the officers of the court. He cited the cases of NWOBODO V. C.C. ONOH (1984) 1 SCNRI; OLANIYONO V. EME-AWA (1989) S NWCR (PT 122) 493; BRITISH AMERICAN INSURANCE CO. LTD V. EDEMA SILLO (1993) 2 NWLR (pt 277) 570. UNIVERSITY OF LAGOS & ANOR V. ATGORO (1984) 1 NWLR (pt 1) 143: II SC.
Counsel submits that to punish the litigants (Appellants) for the lapse, if any, of the court officials who assessed the notice of appeal will be unjust, unfair and unjustified. He urged us to discountenance and dismiss the preliminary objection.
It is clear on page 243 of the court record that the Appellants filing fee to file the notice of appeal was assessed as N350.00 and the fee as assessed was so paid.
Litigants do not assess themselves before the payment of court fees, court fees are paid as duly assessed by court officials. In the instant appeal the appellants have paid the assessed fees, the appellants cannot be punished for the difference if any between the prescribed fee and the assessed fee. I am in agreement with learned counsel for the appellants that where a litigant had done all that the law required of him to commence his action such an action endures in spite of any administrative lapse on the part of the officers of the court.
See C.B.N V. ADEDEJI; OGBUANYINYA V. OKODO (NO. 2) SUPRA; DIKE v. OKORIE (SUPRA)
Beside insufficiency of payment of filing fees will not invalidate the proceedings of the court or oust its jurisdiction especially where the non-payment is not unintentional, unpremeditated by the litigant but rather traceable to the fault of the officers of the court.
It is my firm view that this type of technicality raised in the instant appeal should not be allowed to defeat or affect the end of justice.
The supreme court through OPUTA JSC aptly captured the situation in ALIU BELLO & 13 ORS V. A.G. OYO STATE (1986) 5 NWLR (PT 45) when it states:
“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms and formalities nor is the triumph of the administration of justice to be found in the successful picking one’s way between pitfalls of technicality”.
The preliminary objection of the 1st set of respondents to the hearing of this appeal fails and the notice of preliminary objection is accordingly dismissed.
The appellants issue no. 1 has earlier on been reproduced in this judgment it reads thus:-
1. Whether the appellants were not denied right to fair hearing in this case at the trial court.
On this issue learned counsel for the Appellants submits that the appellants were not served with any of the processes in this suit throughout the duration of the trial. As they were not aware of the proceeding, they were also not represented by any counsel. He emphasized that only the 2nd set of Respondents as 1st to 15th Defendants at the lower court had representation. He further stated that the Appellants as 16th to 63rd Defendants at the lower court were neither served with any of the processes nor represented by counsel. It is the humble submission of the Appellants’ counsel that the action of the court amounted to a breach of fundamental right of the Appellants to fair hearing and legal representation as enshrined in Section 36(1) of the Constitution of Federal Republic of Nigeria.
Counsel to the Appellants referred to the portion of the judgment of the trial court where it states that-
“the defendants filed a statement of defence dated 20th August, 1987 (page 205 paragraph 2 lines 1 of the record or that
The defendants are fully aware of the pendency of this case in court – page 206 of the record. Hearing notices were issued on the defendants. Hearing notices were served on the defendants counsel and there is proof in the court file that several of such hearing notices were served on the defendants’ counsel (page 205 paragraph 2 line 2-4; Page 206 paragraph 1 line 1 of the records.
The fact that they even filed a statement of defence but did not testify to proof their defence. The averments therein are deemed to have been abandoned (page 211 paragraph 3 lines 3-5 of the records).
I have narrated earlier in this judgment that the defendants are aware of the pendency of this suit but apart from filing their statement of defence have refused to take any further step in the suit. It is not the duty of this court to compel the defendants to come to court once it is satisfied that the processes in the suit ore duly served on them. (Page 208 paragraph 3 lines 7-5 of the records)”
Counsel contends that the above conclusions (albeit wrongly made) were made by the trial court because
(a) a statement of defence was filed
(b) a counsel appeared for the 2nd set of respondents who were 1st set of defendants at the trial; and
(c) hearing notices were shown to be served on counsel to the 2nd set of respondents who were 1st set of defendants at the trial;
(d) there is affidavit of service of the processes especially of hearing notices on the counsel who appeared for 2nd set of respondent who were 1st set of defendants at the trial.
Counsel argues that though there is presumptions of correctness of the pronouncement of the court, such presumption is rebuttable and most be rightly held to be misconceived, if they go contrary to the facts or events as presented to the court. That the pronouncement of the trial court is misconceived and thus can be seen as shown below:
(a) There were two categories of defendants. While one of the defendants filed a statement of defence, the other did not and yet both were treated by trial court as having filed a defence;
(b) While only the 2nd set of respondents were represented by a counsel, and was allegedly served hearing notices, the trial court treated all the defendants as having been represented by counsel;
(c) Hearing notices (albeit some excluding the hearing notice ordered at the close of address by 1st set of respondents, who were plaintiffs at the trial) were only served on counsel for the 2nd set of respondents until the counsel withdrew from further representing the 2nd set of respondents. No such hearing notice was served on the appellants, and yet the trial court treated hearing notices served on counsel for the 2nd set of respondents as services on the appellants.
(d) The trial court had earlier ordered that all processes in the case by served by substituted means by advertisement in a local publication.
(e) No such publication of hearing notices was made
(f) The case was adjourned sine die and later resuscitated without any notice thereof advertised or served as ordered by the court;
(g) After the address by the plaintiffs (now 1st set of respondents), the trial court ordered that hearing notice be served on the defendants. No such hearing notice was neither served nor published.
(h) The affidavit of service allegedly filed was in connection with service on the 2nd set of respondents. After the order for substituted service, there was not proof that all the processes including several motions, and hearing notices were served on appellants.
In his response to submissions on issue no. 1 learned counsel for the 1st set of Respondents contends that the Appellants and the 2nd set of Respondents briefed G.E. Ezeuko SAN, Chief J. Ejikeme Esq., P.A. Ikem (Miss), E. Enemuo (Mrs.), F.C. Uzoegwu Esq. and S. Ezeuko (Miss) to represent them in the instant case. He refers to pages 180, 191, 182 and 183 of the record. He further contends that the Appellants and the 2nd set of Respondents filed a Motion on Notice for extension of time within which to file their Statement of Defence and Plan to the action. He refers to pages 59, 60, 61 and 62 of the record and pages 63, 64 and 65 of the record. The learned counsel stated further that Hearing Notices were ordered and served on the Appellants and the 2nd set of Respondents at every stage of the matter and also through their counsel. He refers to pages 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 52, 58, 79, 80, 81, 82, 83, 91, 92, 93, and 94 of the record.
He cited the cases of UKO V. EKPENYONG (2006) 5 NWLR (PART 872) PAGE 70 AT 98, PARAGRAPHS C – E AND AMABUWA V. OWHOFATSHO (2006) 5 NWLR (PART 972) 40 AT 66 PARAGRAPHS A-B. He also refers to the comment of the trial Judge at page 206, lines 1 – 10 of the record. Flowing from the above, the learned counsel urges this court to hold that issue No. 1 succeeds in favour of the 1st set of Respondents.
Now considering the events as presented to the court as contained in a to h, it is glaring from the record of appeal that there were two categories of defendants. While one of the defendants filed a statement of defence the other did not and yet both were treated by the trial court as having filed a defence. The 2nd set of Respondents who were the 1st to 15th defendants filed their statement of claim this can be seen at pages 63 to 65 of the printed record of appeal. The appellants who were the 1st to 48th defendants did not file any statement of defence. The 2nd set of respondents were represented by a counsel, Mr. G. E. Ezeuko and was allegedly served with hearing notices there was nothing on record to show that the appellants were represented by any counsel.
At page 63 of the record in the first paragraph of the statement of defence counsel to the 2nd set of Respondents who were the 1st to 15th defendants specifically stated he represents only 1st to 15th defendants and gave their address of service on their behalf.
Further the 2nd set of respondents stated in paragraph 4 of their statement of defence at page 63 paragraph 4 lines 9-12 of the records that
“the defendants do not know other persons referred to in the statement of claim as other trespassers on Okofia land nor are the alleged trespassers are represented by the persons named.”
Hearing notices (albeit some excluding the hearing notice ordered at the close of address by the 1st set of respondents who were plaintiffs at the trial) were only served on counsel for the 2nd set of respondents until the counsel withdraw from further representing the 2nd set of respondents. There is nothing on record to show or suggest that such hearing notices were served on the appellants.
The trial court had earlier ordered that all the processes in the case be served by substituted means by advertisement in a local publication, there is nothing on record to show or indicate that such publication of the hearing notices was made by substituted means was brought to the notice of the appellants. The case was adjourned sine die and later resuscitated, there was nothing on record indicative of any notice thereof advertised or served as ordered by the court.
After the address by the plaintiffs (now 1st set of respondents) the trial court ordered that hearing notice be served on the defendants. There is nothing in the record of appeal to show that the hearing notice as ordered by the court was served on the Appellants and if published the publication, the appellants got notice of the publication.
After the order for substituted service there is nothing in the record of the court to show that there was proof that all the processes including several motions, and hearing notices were served on the appellants.
In the appeal at hand, before the trial court there were two set of sets of defendants, the 1st to 15th defendants who are the 2nd set of respondents in this appeal and the 16th – 63rd defendants (the appellants).
The 2nd set of respondents, 1st to 15th defendants were represented by a counsel Mr. G. E. Ezeuko and it is very clear that his representation in the matter is limited to the 1st-15th defendants.
There was nothing on record to show that any counsel entered appearance on behalf of the appellants.
I have carefully studied the record of appeal to find out if the writ of summons and other subsequent processes filed including hearing notices were served on the appellants. My finding shows that the following appellants were alleged to have been served with the writ of summons.
1. Appellant No 21 Boniface Obi was alleged to have been served on 26/1/84 affidavit of service at page 14 of the record.
2. Appellant No 36 Edmund Egeonu alleged to have been served on 26/1/84 affidavit of service at page 15 of the record.
3. Appellant No 13 Boniface Okonkwo Maduekwe alleged to have been served on 26/1/84 affidavit of service at page 16 of the record.
4. Appellant no. 22 Linus Agha alleged to have been served on 26/1/84 affidavit of service at page 17 of the record.
5. Appellant No. 25 Joseph Akona alleged to have been served on 26/1/84, affidavit of service at page L8 of the record.
6. Appellant No. 1. P.C. Odeluga alleged to have been served on 26/1/84, affidavit of service at page 19 of the record
7. Appellant No. 47 Rapheal Okonkwo alleged to have been served on 27/1/84 affidavit of service at page 20 of the record.
8. Appellant no. 46 alleged to have been served on 27/1/84 page 21 of the record.
9. Appellant no 48 Mathew Okonkwo alleged to have been served on 27/1/84.
The above appellants that were alleged to have been served with the writ of summons, the bailiff in his affidavit of service stated that before he served the summons he did not know the appellant personally and in the column of whether anybody acted as a pointer, the column was crossed indicating nobody acted as a pointer which clearly shows that there was no service of the writ of summons on any of the nine appellants mentioned above as the bailiff cannot serve a person he does not know and nobody acted as pointer. In contrast at pages 6, 7, 9, 10, 11, 12, the same bailiff sworn to affidavit of service showing that he served some of the Respondents in the 2nd set of respondents with a writ of summon, that before the service of summons on them he did not know them personally but the plaintiff acted as a pointer.
My findings after careful scrutiny of the record of appeal is that none of the appellants was served with the writ of summon which is the originating process in this appeal, no subsequent process was also served on any of the appellants. All the affidavits of service found at pages 52, 58, 79, 80, 81, 82, 83, 91, 93 and 94 of the record were not served on any of the appellants but on G.E. Ezeuko Esq., SAN counsel on record for 1st to 15th defendants, the 2nd set of Respondents in this appeal.
The learned trial judge in his judgment has stated thus:
“the defendants filed a statement of defence dated 20th August, 1987 (page 205 paragraph 2 Lines 7 of the records.
The defendant’s are fully aware of the pendency of this case in court – page 206 of the record.
Hearing notices were served on the defendants. Hearing notices were served on the defendants’ counsel and there is proof in the court file that several of such hearing notices were served on the defendants’ counsel (page 205 paragraph 2 line 2-4 page 206 paragraph 1 line 1 of the records).
The fact that they even filed a statement of defence but did not testify to poof their defence. The averments therein are deemed to have been abandoned (page 211 paragraph 3 lines 3-5 of the records).
The above conclusions made by the learned trial judge do not relate to the appellants but rather to the 1st to 15th defendants the 2nd set of Respondents in this appeal. As earlier stated there is nothing in the record of appeal showing that the appellants were served with any process, the statement of defence that was filed was not filed by the appellants on their counsel rather it was filed by a counsel on behalf of the 1st to 15th defendants the 2nd set of Respondents.
No counsel appeared for the appellants rather a counsel appeared for 2nd set of Respondents who were 2nd set of defendants at the trial court. Hearing notices were shown to be served on to the 2nd set of respondents who were 1st set of defendants at the trial. The affidavit of service of the processes especially of hearing notices were served on counsel who appeared for the 2nd set of respondents who were 1st set of defendants at the trial.
In the appeal at hand I have no iota of doubt that the appellants were not served with any process as such were not aware of the pendency of case at the court below therefore their constitutional right to fair hearing, and legal representation as enshrined in Section 36(1) of the 1999 constitution of the Federal Republic of Nigeria as amended is breached; Issue No. 1 is therefore resolved against the 1st set of respondents in favour of the appellants.
The service of process in a matter before the court is critical not only as to its fair hearing but as to the exercise of the court’s jurisdiction over the matter. Thus, failure to serve a process, where service is required, goes to the root of the action. It is treated not as a mere irregularity but a fundamental defect which is incapable of sustaining any order of judgment based upon it.
In the instant case, there was no service of all the processes and this rendered the proceeding at the trial court defective and liable to be set-aside. See SKENCONSULT (NIG) LTD V. UKEY (1987) 1. SC. 6.
In the light of the foregoing I hold that the entire proceedings of the trial court and the judgment of C. O. Nweke, J. delivered on 7th day of April, 2004 in suit No. 0/439/83 are a nullity and are hereby set-aside as it affects the appellants and the 1st set of respondents.
In the light of this decision no useful purpose will served determining the remaining issues. The appeal therefore succeeds. Suit No. 0/439/83 is hereby remitted to the Chief judge of Anambra State for a re-trial between the Appellants and the 1st set of Respondents before another judge other than Nweke J.
I make no orders as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA. I am in complete agreement with his reasoning and conclusions. I also hold that the appeal succeeds. The entire proceedings of the trial Court and judgment of that court per C.O. Nweke J. delivered on 7th April 2004 in Suit No. 0/439/83 are hereby set aside to the extent that it concerns the appellants and the 1st set of respondents. I also order a retrial of suit No. 0/439/83 as between the appellants and the 1st set of respondents before another Judge. I also make no order as to costs.
Appearances
Mr. F. J. Omekoro with Mr. J. IlokaFor Appellant
AND
Mr. V.A. Ikeme for the 1st set of Respondents.
Mr. S. C. Onachukwu with R. Agwulobi for the 2nd set of RespondentsFor Respondent
