CROSS RIVER STATE WATERBOARD LIMITED v. CHIEF BENEDICT ONEN & ORS (2016)

CROSS RIVER STATE WATERBOARD LIMITED v. CHIEF BENEDICT ONEN & ORS

(2016)LCN/8582(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of May, 2016

CA/C/195/2012

RATIO

APPEAL: RIGHT OF APPEAL; IS THE LEAVE OF COURT REQUIRED TO APPEAL A FINAL DECISION OF COURT

As rightly submitted by learned Counsel for the Appellant, by the provisions of Section 241(1) (a) of the 1999 Constitution, as amended, a final decision does not require leave of Court before an appeal can be filed over it. Appeal would lie as of right. PER ONYEKACHI AJA OTISI, J.C.A.

JUDGMENT: FINAL DECISION; WHAT CONSTITUTES A FINAL DECISION

In considering what constitutes a final decision in Fadiora v. Gbadebo (1975) LPELR-1224 (S.C.), (1978) ALL NLR 42, the Supreme Court, per Idigbe, JSC, cited with approval the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed.) in Art 164,P.34 as follows:

“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the Tribunal which pronounced it.”

In Gomez & Anor v. Cherubim and Seraphim Society & Ors. (2009) LPELR-1331 (SC), the Supreme Court, per Oguntade, JSC said:

“However, where the order made finally determines the rights of the parties, as to the particular issues disputed, it is a final order even if it arises from an interlocutory application.”

Therefore even from an interlocutory application, a final decision can be made with respect to particular issues. PER ONYEKACHI AJA OTISI, J.C.A.

COURT: FUNCTUS OFFICIO; WHEN WILL A COURT BE FUNCTUS OFFICIO; CIRCUMSTANCES A COURT CAN SET ASIDE ITS JUDGMENT

Generally, when a Court completes hearing a case and delivers its judgment thereon, it ceases to exercise further power in dealing with the case except with respect to such ancillary matters as stay of execution, payment by installments etc. The Court is said to be functus officio in the case and any step to be taken to reverse the judgment falls within the jurisdiction of the relevant appellate Court. However, in certain circumstances, the Court that gave a judgment is permitted to set aside such judgment. Aside from provisions which may be found in various High Court Civil Procedure Rules which allow the Court under certain conditions to set aside its judgment obtained in the absence of one of the parties or in default of pleadings, there is also an inherent power of the Court to set aside its judgment in certain circumstances. The law is quite settled that any Court of record has the inherent jurisdiction to set aside its own judgment given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court, making the said decision a nullity. A Court order can be regarded as a nullity where, for instance, the Court has acted without jurisdiction or the judgment or order was obtained by fraud, or where there has been non-compliance with a fundamental procedural rule which has led to breach of fundamental right to fair hearing; Okafor v. A.G., Anambra State (1991) 2 SCNJ 345; Purification Techniques (Nig.) Ltd v. A.G., Lagos State (2004) 9 NWLR (Pt. 879) 665. Failure to serve process where service of process is required renders null and void an order made against a party who ought to have been served; Oke v. Aiyedun (1986) LPELR-2427(SC); Mark v. Eke (2004) 5 MJSC 143. PER ONYEKACHI AJA OTISI, J.C.A.

PROCEDURE: SERVICE OF COURT PROCESS; ESSENCE OF SERVICE OF COURT PROCESS

Service of Court process on a party is fundamental. It is service of process that confers competence and jurisdiction on the Court seized of the matter. Due service of process of Court is a condition sine qua non to the hearing of any suit. A party ought to be served with the originating process in any proceedings against him. The party ought to know about any suit filed or application seeking orders against him. Therefore if there is a failure to serve process where service of process is required goes to the root of the case. The party affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity; Skenconsult (Nig.) Ltd v. Ukey (1981) NSCC (Vol. 12) 1 at 16; National Bank v. Guthrie (1993) 4 SCNJ 1 at 17; SGBN v. Adewunmi (2003) 12 MJSC 180; Kida v. Ogunmola (2006) I MJSC 1; Igwe v. Kalu (2002) 7 S.C. (Pt. 11) 236. The Court can set it aside suo motu and the person affected may also apply by motion to have it set aside Anatogu v. Iweka II (1995) I SCNJ 1 at 33-34 ; (1995) 8 NWLR (Pt. 415) at 547. The affected party need not have the judgment or order set aside only by way of appeal; Ezeokafor v. Ezeko (1999) 6 SCNJ 209 at 225; Okoye v. N.C.F.C. (1991) 7 S.C. (Pt. 111) 33; Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 154 SC. PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES:

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

CROSS RIVER STATE WATERBOARD LIMITED – Appellant(s)

AND

1. CHIEF BENEDICT ONEN
2. CHIEF EYONG BUTUM ETENG
3. OFEM IBIANG OBONO
4. ONEN IBIANG OBOBO
(For themselves and on behalf of Yanenboh-Okem paternal Family of Ndayi, Ntankpo, Ugeb, Yakurr Local Government Area of Cross River State of Nigeria)
5. YAKURR LOCAL GOVERNMENT COUNCIL
6. ATTONEY-GENERAL OF CROSS RIVER, NIGERIA – Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling and judgment of the High Court of Cross River State, Ugep Division, delivered by Honourable Justice Michael Edem, J., on March 20, 2012.

The 1st-4th Respondents, who were the applicants in the lower Court, commenced Suit No. HUG/60/2010 for the enforcement of their fundamental rights as cognizable under Section 44 Subsection 1 of the Constitution of the Federal Republic of Nigeria, 1999, as amended; and Articles 14 & 21 (1) & (2) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2014. The 5th-6th Respondents herein, who were the 2nd and 3rd respondents in the lower Court, filed counter affidavits and/or raising preliminary objections. The Appellant, which was the 1st respondent at the lower Court, alleged that it was not served with the originating process in the matter. The lower Court however found otherwise. The Appellant filed an application to set aside that finding and order, to which the 1st-4th Respondents herein raised a preliminary

objection. The lower Court dismissed Appellant’s motion to set aside and proceeded to give judgment solely against the Appellant. Aggrieved by the ruling and judgment of the lower Court, the Appellant, lodged the instant appeal by Notice of Appeal filed on May 31, 2012 on six Grounds of Appeal found at pages 174 – 179 of the Record of Appeal.

The Appellant and the 1st-4th Respondents exchanged Briefs of Argument. The 5th and 6th Respondents though served with the processes and with hearing notice, did not appear and filed no brief. The Appellant’s Brief of Argument, settled by Barth A. Izato, Esq., was filed on 20/1/2014 but deemed properly filed and served on 26/1/2016. The Appellants’ Brief was adopted on 19/4/2016 by J. U. Ugbong, Esq. The 1st-4th Respondents’ Brief, in which a Preliminary Objection was raised, was filed on 17/6/2014 but deemed on 26/1/2016. It was adopted by Mrs. J. O. Obono-Obla on 9/2/2016. The Appellant’s Reply Brief filed on 9/2/2016 was also adopted.

The Notice of Preliminary Objection of the 1st-4th Respondents was raised on the following grounds:
i. The Appellant did not seek leave of this Honourable Court or

the Court below to file the Notice of Appeal filed on the 31st May, 2012, challenging the Interlocutory decision of the lower Court delivered on the 20th March, 2012, as contemplated by Section 11 of the Court of Appeal Act (as amended) 2011.
ii. The Appellant did not appeal against the Interlocutory Order of the lower Court delivered on the 20th March, 2012, within 14 days of the ruling as enjoined by Section 24 (2) (a) of the Court of Appeal Act (supra).
iii. Grounds 1, 2, 3, 4, 5 & 6 of the Notice and Grounds of Appeal did not arise from the judgment of the lower Court appealed against and therefore incompetent.
iv. Ground One and particulars of the Notice of Appeal are not Ground of error in law as wrongly termed by the Appellant and therefore incompetent and contrary to the provisions of Order 6 Rule 3 of the Court of Appeal Rules, 2011, that enjoins that the Grounds of Appeal and Particulars must be specific, lucid and precise.
v. Issue No. 5 of the Appellant’s Brief of Argument framed from Ground 6 of the Notice of Appeal is a fresh issue which can only be raised with leave of this Honourable Court and no such leave was sought and

granted by this Court.

I shall first consider grounds (i), and (ii) which relate to the appeal on the ruling of the learned trial Judge on appeal.

On ground (i), it was submitted that the Appellant had failed to obtain leave to appeal against the ruling of the lower Court delivered on 20/3/2012 before including it in the Notice of Appeal filed against the judgment delivered on 20/3/2012. That in consequence, Grounds 3, 4 and 5 of the Notice of Appeal, which were based thereon are incompetent and should be struck out. In reply, learned Counsel for the Appellant submitted that the ruling upon which Grounds 3, 4 and 5 of the Notice of Appeal are based was a final decision, within the meaning of Section 241(1) of the Constitution of the Federal Republic of Nigeria, as amended, as there was nothing left of the prayers and reliefs sought from the lower Court that was left for its determination. There was therefore no requirement for leave.

be filed over it. Appeal would lie as of right. In considering what constitutes a final decision in Fadiora v. Gbadebo (1975) LPELR-1224 (S.C.), (1978) ALL NLR 42, the Supreme Court, per Idigbe, JSC, cited with approval the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed.) in Art 164,P.34 as follows:
“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the Tribunal which pronounced it.”
In Gomez & Anor v. Cherubim and Seraphim Society & Ors. (2009) LPELR-1331 (SC), the Supreme Court, per Oguntade, JSC said:

“However, where the order made finally determines the rights of the parties, as to the particular issues disputed, it is a final order even if it arises from an interlocutory application.”
Therefore even from an interlocutory application, a final decision can be made with respect to particular issues.

The application of the

Appellant upon which the trial Court ruled sought an order to set aside an earlier ruling in which the trial Court had ruled that the Appellant was duly served with the originating process in the matter leading to the appeal; pages 152-162 of the Record of Appeal. The trial Court ruled upon the said application and there was nothing further for it to determine on the said application. There was therefore no requirement to seek leave of Court before lodging an appeal against the decision.

The Appellant distilled five issues for determination:
(1) Whether in view of the specific reliefs sought by the Applicants and the overwhelming affidavit evidence and submission in support thereof, the lower Court was right to enter judgment solely against the Appellant. (Ground 1 of the Appeal).
(2) Whether the lower Court was right when it held that it was functus officio to hear Appellant’s application to set aside its earlier ruling and that the said application was an abuse of Court process. (Ground 4).
(3) Whether the Appellant’s right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as

amended) was not violated by the failure of the lower Court to hear Appellant’s motion to set aside its earlier ruling before dismissing same and/or offering Appellant an opportunity to be heard before proceeding to deliver judgment against the Appellant. (Grounds 3 and 5).
(4) Whether from the peculiar circumstances of this case, the claim of the 1st-4th Respondents/Applicants in the lower Court was not statute-barred and therefore unenforceable under the Fundamental Rights (Enforcement Procedure) Rules 2009. (Ground 2).
(5) Whether any private person other than the Government of the Federation, State or Local Government can compulsorily acquire land and pay compensation therefore under the relevant laws in force in Nigeria, (Ground 6).

The 1st-4th Respondents reframed the issues for determination in this manner, pages 1-27 of the Record of Appeal:
i. Whether the learned trial Judge was correct when he found in favour of the 1st-4th Respondents regard being had to the facts and circumstances of the case? (framed from Grounds 1 & 6).
ii. Whether the learned trial judge was right when he held that the statute of limitation does

not apply for actions for the enforcement of fundamental human rights (Enforcement Procedure) Rules, 2009?
iii. Whether the learned trial judge was right when he upheld the preliminary objection filed by the 1st-4th Respondent against the hearing and determination of the Appellant’s Motion on Notice filed on the 14th December, 2011, on the ground that it constitutes an abuse of Court process?
iv. Whether the learned trial Judge was correct when he held that the Court had no jurisdiction to hear and determine the Motion on Notice filed by the 1st-4th Respondent on the 14th December, 2011, to set aside the Court’s ruling dated the 25th October, 2011?
v. Whether the learned trial Judge was right when he proceeded to deliver judgment after dismissing the Appellant’s Motion seeking for Order setting aside the ruling of the Court dated the 25th October, 2011?

These issues are similar in content though differently worded. I shall adopt the issues as framed by the Appellant. Having regard to the issues, I consider it prudent to first consider Issues 2 and 3 as distilled by the Appellant; and Issues (iii) and (iv) as formulated by the 1st-4th

Respondents.

It was submitted for the Appellant that a Court may set aside its earlier judgment or decision in deserving circumstances, such as when there has been fraud or deceit, even if the decision was made on the merits. It was submitted that it is an established principle that unless and until a Court has pronounced judgments on the merits or by consent, it has inherent powers to revoke the expression of its coercive power where it has been obtained by a failure to follow any of the rules of procedure. The Court does not become functus officio every time it delivers judgment, if the decision is afflicted with any condition upon which the decision may be set aside. Reliance was placed, inter alia, on A.C.B. Plc. v. Losada Nig. Ltd. (1995) 7 NWLR (Pt. 405) 26; Ede v. Mba (2011) 18 NWLR (Pt. 1278) 236 at 262. It was further argued that the trial Court was not functus officio with respect to the Applicant’s application urging the Court to revoke its earlier finding that there was proper service. No decision on the merits was given by the lower Court. The application to set aside the ruling of the trial Court was unsuccessful. The learned trial Judge

had relied on an affidavit of service which was erroneous and described as begin fraudulent. The application of the Appellant was to rebut the erroneous deposition on service. The Appellant contended that the learned trial Judge had not dispassionately looked at the record and the Appellant’s affidavit in support of the motion. It was submitted that where a Court proceeds to hear and determine a matter without proper service, the proceedings amount to nullity as there has been denial of fair hearing. Learned Counsel for the Appellant also submitted that the trial Court was not functus officio to hear the application to set aside the ruling delivered upon a fraudulent document; and that the application of the Appellant was not an abuse of Court process. The Court was urged to set aside the said ruling of the lower Court as it amounted to a denial of fair hearing.

The 1st-4th Respondents relied on the proceedings before the trial Court to submit that the learned trial Judge was correct to uphold the Preliminary objection which they filed against the hearing and determination of the Appellant’s motion filed on 14/12/2011 to set aside the findings and

ruling of the trial Court to the effect that the Appellant was served. It was further submitted that the learned trial Judge was also correct to have declined jurisdiction to hear and determine the said motion. They contended that the remedy available to the Appellant was to appeal against the said ruling of the trial Court and not to file a motion for the said ruling to be set aside. They argued that the trial Court was functus officio and cannot review or reverse its decision. Reliance was placed, inter alia on Dingyadi v. INEC (2011) 4 MJSC 1 at 47; Kaduna Textile Ltd v. Obi (1999) 10 NWLR (Pt. 621) 138. It was argued that the Appellant’s right to fair hearing had not been violated. The Court was urged to resolve these issues against the Appellant.

The centre point at the bottom of this appeal is whether the Appellant, which was the 1st respondent in the lower Court, was served with the originating processes in the matter. The issues of whether the Appellant was accorded fair hearing, whether the trial Court was functus officio, and whether his application filed on 14/12/2011 constituted an abuse of Court process are grounded on the issue of

service. In order to achieve a judicious consideration of the issue of service, I shall be quite prolix in reproducing the proceedings before the trial Court as transcribed in the Record of Appeal.

At the proceedings on 13/12/2010, at page 130 of the Record of Appeal, the trial Court noted:
Court: The 1st Defendant is not properly served. I order proper service on 1st Defendant through the secretary and not a Clerk in the Ministry of Water Board. Matter adjourned to 25th June, 11 for proof of service on the 1st defendant/hearing.

But, on February 22, 2011, the trial Court sat and heard this matter without service on the 1st Respondent therein, the Appellant herein. At the said proceedings of February 22, 2011, learned Counsel for the 1st-4th Respondents herein, who were applicants before the trial Court, and learned Counsel for the 3rd respondent therein, who is the 6th Respondent in this appeal, were both present. While moving his substantive application for the enforcement of fundamental rights, learned Counsel for the 1st-4th Respondents argued, at pages 131-132 of the Record of Appeal:
On 1st Respondent there is no C/affidavit.

The law is settle (sic) the Court is entitled to deem the averments as admitted except the facts are contrary to common sense.

After the 1st-4th Respondents as applicants had argued their said application for enforcement of their fundamental rights and the 6th Respondent herein had responded, all adopting their respective written addresses, the learned trial Judge now ruled at page 133 of the Record of Appeal:
Court: By consent of both counsels I order hearing notice to the 2nd respondent to come and adopt their written address… By consent of both counsel matter adjourned to the 21st March, 2011 for adoption by 2nd respondent.

No mention was made of the Appellant, which was the 1st respondent.

Hearing resumed on April 18, 2011. The Appellant was not present. Argument on the substantive motion continued with the 2nd respondent therein (5th Respondent herein), adopting its written address in support of their counter affidavit to the application by the 1st-4th Respondents for enforcement of their fundamental rights. The matter was adjourned to May 3, 2011 for ruling. But, there was no ruling delivered on that date.

On May

25, 2011, U. A. Adie, Esq. who appeared for the Appellant informed the trial Court, at page 135 of the Record of Appeal:
Our appearance is under protest. We have not been served with the originating processes. We are only here on the bases of the hearing notice served on us on the 20th May, 2011.
We were only briefed yesterday and that is why we are here today. We pray to be served with all the processes for us to fight our battle.

Upon the agreement of other Counsel for the respective parties that the issue of service be resolved, the learned trial Judge at page 135-136 of the Record of Appeal, ruled:
Court: By consent of all counsel matter adjd, to 11th July, 2011 for considered ruling on service on 3rd Respondent.

I believe the reference was actually to the 1st respondent therein who is Appellant herein.

Without taking any argument from Counsel or evidence in rebuttal of service, on October 19, 2011, the learned trial Judge delivered a ruling on the issue of service on Appellant, at page 137-138 of the Record of Appeal, in which he found and held:

“On the 20th of May 2010 the 1st Respondent represented by

Barrister U. A. Adie fiercely contended that they had not been served with the originating process.
Wherefore after hearing from all the parties on the need to settle the issue of service first, I adjourned to 11th July 2011 for a considered ruling as to whether the 1st Respondent was served or not.
I had to reach out to the file on proofs of service. Behold in that counterpart file is comfortably resting a proof of service on the 1st Respondent.
The affidavit of service therein evidences that the 1st Respondent was duly served on the 15th day of October, 2010 through her Secretary. And by the provision of ORDER 12 RULE 9 HIGH COURT RULES, 2008 such service is good and perfectly in order.
Wherefore I find and hold that the 1st Respondent was and had been duly served with the originating process…And so 1st Respondent you be and are hereby estopped from denying service of the originating process on you. You had been served.”

From this ruling, the learned trial Judge, looked into the case file, and suo motu resolved a dispute on service on the Appellant without hearing from the Appellant. Learned Counsel for the

Appellant, Mr. Adie, was present at the proceedings. The learned trial Judge at page 136 of the Record of Appeal then concluded thus:
Court: Ruling ascertaining service on 1st Respondent having been delivered, I adjourned for the pending judgment. By consent of both Counsels matter adjd to the 24th Oct, 11 for judgment.

Thus, immediately after the ruling ascertaining service, the matter was adjourned for judgment.

These procedure, findings and conclusion of the learned trial Judge are really odd, having regard to its earlier findings and order on 13/12/2010, at page 130 of the Record of Appeal, where the trial Court noted:
Court: The 1st Defendant is not properly served. I order proper service on 1st Defendant through the secretary and not a clerk in the Ministry of Water Board Matter adjourned to 25th June, 11 for-proof of service on the 1st defendant/hearing.
(Emphasis mine)

As learned Counsel for the Appellant rightly pointed out, the findings and conclusion of the learned trial Judge on October 19, 2011 ignored his findings and order made on 13/12/2010. The learned trial Judge, as at 13/12/2010, had rejected the

service on a Clerk in the Ministry of Water Board on 15/10/2010 as being improper service and ordered service on the Secretary of the Appellant. In other words, as at 13/12/2010, what was available before the trial Court was an affidavit of service of process for the Appellant but purportedly served on a clerk in the Ministry of Water Board. In his findings and conclusion on 19/10/2011, about ten months down the line, the learned trial Judge now found that there was an affidavit of service again purportedly served on the Appellant through its Secretary on 15/10/2010, as was ordered by the same trial Court on 19/10/2011! This second affidavit of service reading the same dates and with other differences, which shall soon be highlighted, ought to have resonated alarm bells in the mind of the trial Court. But, it did not.

On the next date fixed for judgment, October 24, 2011 the learned trial Judge now realized there were some pending applications. These applications were subsequently heard and ruled upon by the trial Court. The proceedings continued on other dates, such as 25/10/2011, 23/11/201, 6/11/2011 and 12/12/2011, without the Appellant. On

12/12/2011, learned trial Judge ruled as follows:
Court: Matter by consent adjd, To 14th Dec. 11 for the 1st Respondent to present his position on service which was ruled upon by the Court.

On 14/12/2011, B. Izato, Esq. appeared for the Appellant as 1st respondent therein. He notified the trial Court that the Appellant had filed an application for an order setting aside the findings and order of the trial Court to the effect that the Appellant was served with the originating processes. The trial Court adjourned to 1/2/2012 for hearing of the motion. In the motion on notice, reproduced at pages 85-99 of the Record of Appeal, the Appellant sought the following orders from the Court:
(a) An order setting aside the finding and the consequential order of this Honourable Court made on the 25th day of October, 2011 to the effect that 1st Respondent/Applicant has being served with the Originating process in this suit.
(b) An Order that the conduct of the Bailiff of this Honourable Court involved in the purported service of the said Originating Process in this suit be investigated and appropriate disciplinary action taken against him to serve

as a deterrence.

In paragraphs 4-23 of the affidavit in support of motion, the Appellant deposed thus:
4. The 1st Respondent was on the 20th day of May, 2011 served with a Hearing Notice emanating from this Honourable Court notifying it that this suit was coming up on the 25th day of May, 2011 for Judgment.
5. I immediately forwarded the said hearing notice to Messrs. Izato, Ubua, Aniah & Co. solicitors to the 1st Respondent for necessary action.

6. Prior to the service of the said Hearing Notice on the 1st Respondent on 20.5.2011, no other process of this Honourable Court in respect of this matter had been served on the 1st Respondent.
7. Barth A. Izato, Esq. of counsel informed me in his Chambers at about 6.30p.m. on Tuesday the 13th day of December, 2011 and I verily believe him that he, on the said 25.5.2011 sent his junior in chambers, U. A. Adie, Esq. to appear before this Honourable Court under protest and to inform the Court that neither the originating process not any other process other than the Hearing Notice had been served on 1st Respondent.
8. Barth A. Izato, Esq. of counsel also informed me on the said

day, place and time and I truly believe him that his said junior in chambers did appear before this Court on the said 25.5.2011 and informed the Court that 1st Respondent had not been served with any originating processes and the suit was adjourned to 11.6.2011.
9. Till date, no copy of the originating process in this suit has been served on 1st Respondent.
10. The said counsel further informed me and I verily believe that due to the engagement of His Lordship in a state assignment, the matter suffered series of adjournment.
11. 1st Respondent lost count of the adjourned dates in this matter until 7.12.2011, when a fresh hearing notice was served on 1st Respondent informing it that the suit was adjourned to 12.12.2011 for judgment.
12. I forwarded a copy of the said fresh hearing notice to 1st Respondent’s Solicitors to enable them appeal in Court.
13. Barth A. Izato, Esq. of counsel also informed me on the same day, place and time and I truly believe him that he appeared before this Honourable Court on 12.12.2011 and further informed the Court that neither the originating process nor any other process has been served on the 1st

Respondent; in response to which this Court informed him that it had found from its records and had ruled that service was effected on 1st Respondent on 15.10.2010.
14. The said Barth A. Izato, Esq. of counsel further informed me on the said 13.12.2011 in his chambers that he told the Court that he needed to get copies of the said proof of service to enable 1st Respondent determine which of its staff was allegedly served with the processes, to the Court obliged and ordered that copies of any document desired by him be made available to him.
15. The said counsel also informed me and I verily believe that upon his perusal of the Court’s file to enable him obtain the required documents, he found that:
a) This Court had on 13.12.2010 raised suo motu the issue that there was no proper service of the Originating process on the 1st Respondent as the proof in the Court’s file made reference to service on Ministry of Water Board.
b) No valid proof of service has since that day been filed in Court to state that service of the originating process was effected on 1st Respondent on any day after discovery on 13.12.2010 that the affidavit of service was

ineffectual.
c) The purported affidavit of service of the Bailiff, one Etta Ibor Ngwele is bogus and a fraud perpetrated to mislead the Court into believing that service was effected on 1st Respondent.
d) The said Etta I. Ngwele who designated himself as Snr. Bailiff by his affidavit of service dated the 18th day of October, 2010 purported to serve on Mr. Edem (Clerk to the Ministry of Water Board) on the 15th day of October, 2010 at 3.17pm, with “a copy of written summons of counter affidavit 2nd Respondent address”. The said affidavit of service was sworn to on 19th October, 2010. Shown to me and marked Exhibit “A” is a copy of the said affidavit which is at page 46 of the Court’s file.
e) The selfsame Etta I. Ngwele now designated as Asst. Chief Bailiff filed another affidavit of service dated and sworn to on 18th day of October, 2010 purported to have served 1st Respondent through the Secretary, Cross River State Water Board Limited on the same 15.10.2010 at the same 3.17pm with “A copy of motion on notice, statement made pursuant to Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009”. Shown to me and marked Exhibit

“B” is a copy of the said affidavit of service which is at page 104 of the Court’s file.
f) It is not possible for the said Bailiff to have had two designations on the same day of service to have served Mr. Edem of the Ministry of Water Board and the Secretary of the 1st Respondent contemporaneously at the same time.
g) It is also impossible for the affidavit of service sworn to on 19.10.2010 to precede that sworn on 18.10.2010 at pages 46 and 104 respectively of the Court’s file.
h) The spurious affidavit of service falsely sworn to on 18.10.2010 was wrongfully procured as an attempt to cure the defect observed by the Court on 13.12.2010, so the backdating of the affidavit is criminal in all intents and purposes.
i) The land for which the Applicants are seeking compensation was one of those which the 1st Respondent intended to use for the construction of a reservoir for the Cross River State ADB Assisted water project.
16. Neither I as the Company Secretary of the 1st Respondent nor any other member of staff of the 1st Respondent have been served with Exhibits A & B above and I challenge the said bailiff to produce his dispatch

book to show who signed for those processes.
17. I urge on this Court to investigate the conduct of the Bailiff at the centre of the purported service of the processes on the 1st Respondent to prevent the use of this honourable Court as an engine of fraud.
18. All land used for the construction of the Reservoir and other storage facilities for the water project were compensated for, or instance the land donated to 1st Respondent by the Clan Heads of Ntankpo and Bikobiko Clans vide a Deed of Gift dated the 28th day of October, 1999.
19. Due to the 1st Respondent’s preliminary geo-technical studies, it was found that the land for which the Applicants are claiming for compensation was found to be unsuitable for the desired purpose, to wit the construction of reservoir and 1st Respondent/Applicant never took possession of the land.
20. The 1st Respondent/Applicant never entered into the land for which compensation is being claimed by the Applicants.
21. Compensation was duly paid for all land acquired and used for the 1st Respondent/Applicant’s projects. The land used for the storage of pipes, etc was returned to the community after use as

can be exemplified in 1st Respondent’s letter dated the 2nd day of October, 2007 formally returning the land to the Donors. Shown to me and marked Exhibit “C” is a copy of the said letter.
22. 1st Respondent has not at any point in time handed over any portion of land to the 2nd Respondent or any other person other than the authorized persons who donated the land to it for public purpose.
23. It is the interest of justice that the prayers of the 1st Respondent be granted as prayed.

Annexed to the said affidavit as Exhibits A, B and C, reproduced at pages 91-93 of the Record of Appeal, are the following:
Exhibit A – Affidavit of Service deposing to service of a copy of written summons of counter affidavit of 2nd Respondent address on Mr. Edem, a clerk to the Ministry of Water Board, Calabar. Service was deposed to have been effected on October 15, 2010 at 3:17p.m. by Etta Ibor Ngwele described therein as Snr Bailiff.

Exhibit B – Affidavit of Service deposing to service of a copy of motion on Notice, statement made pursuant to Order 11 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; deposed to have been

personally served on The Secretary Cross River State Water Board Limited, at Calabar. Service was deposed to have been effected on October 15, 2010 at 3:17p.m. by Etta Ibor Ngwele described therein as Asst. Chief Bailiff.

Exhibit C-A letter titled RETURN OF PARCEL OF LAND which reads in part:
I write and refer to your letter dated 22nd August, 2007 and to inform you that based on your request and in line with Section 2(4) of the Deed of Gift, we formally return the land in question as it is no longer required by the Company for the purpose for which it was acquired.

Exhibit C had annexed to it a Deed of Gift made on October 28, 1999, by which the said parcel of land was donated. The Deed of Gift was signed by the Clan Heads of Ntankpo Clan and Bikobiko Clan of Ugep in Yakurr Local Government Area of Cross River State on behalf of their respective Clans. Annexed as Schedule to the said Deed was a record of payments and other expenses made as compensation paid as a result of the Board’s use of the land to the persons listed overleaf in the amounts stated beside each name.

The 1st-4th Respondents had a preliminary objection to the motion

of the Appellant on the ground inter alia, that the trial Court had already given a ruling settling the issue of service on the Appellant and cannot sit on appeal over its own decision. The only way out was for the Appellant as 1st respondent to appeal against the said ruling. They also denied that the signatories to the Deed of Gift and its annexed Schedule were the genuine owners of the parcel of land for which they sought compensation. See pages 102-107 of the Record of Appeal. For the Appellant, the argument in reply to the objection was that a Court could set aside its own judgment even on the merit when there is evidence, inter alia, of fraud. Learned Counsel for the Appellant called the attention of the trial Court to the affidavits of service in the lower Court’s file which deposed that one Etta Ibor Ngwele as Assistant Chief Bailiff served Mr. Edem Clerk to Ministry of Water Board on 15/10/2010 at 3:17p.m. and the other affidavit which deposed that the same Etta Ibor Ngwele, now stated to be Senior Bailiff served another process on 15/10/2010 at 3:17p.m. It was contended that it was humanly impossible for one person to serve two different persons at

the same time in different places; and that these affidavits show that the depositions are bogus and fraudulent.

In spite of the benefit of these exhibits and other averments in the affidavits of the parties, the learned trial Judge in extremely ornate and flowery language, dismissed the application as constituting an invitation to him to reverse his earlier finding and ruling validating the issue of service on the Appellant as 1st respondent therein without being an appeal. He described himself as being functus officio. He further held that the trial Court cannot investigate the bailiff of the lower Court and held that the application was an abuse of Court process. The ruling on this application which was delivered on March 20, 2012, is now on appeal.

Court. However, in certain circumstances, the Court that gave a judgment is permitted to set aside such judgment. Aside from provisions which may be found in various High Court Civil Procedure Rules which allow the Court under certain conditions to set aside its judgment obtained in the absence of one of the parties or in default of pleadings, there is also an inherent power of the Court to set aside its judgment in certain circumstances. The law is quite settled that any Court of record has the inherent jurisdiction to set aside its own judgment given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court, making the said decision a nullity. A Court order can be regarded as a nullity where, for instance, the Court has acted without jurisdiction or the judgment or order was obtained by fraud, or where there has been non-compliance with a fundamental procedural rule which has led to breach of fundamental right to fair hearing; Okafor v. A.G., Anambra State (1991) 2 SCNJ 345; Purification Techniques (Nig.) Ltd v. A.G., Lagos State (2004) 9 NWLR (Pt. 879) 665. Failure to

serve process where service of process is required renders null and void an order made against a party who ought to have been served; Oke v. Aiyedun (1986) LPELR-2427(SC); Mark v. Eke (2004) 5 MJSC 143.

by motion to have it set aside Anatogu v. Iweka II (1995) I SCNJ 1 at 33-34 ; (1995) 8 NWLR (Pt. 415) at 547. The affected party need not have the judgment or order set aside only by way of appeal; Ezeokafor v. Ezeko (1999) 6 SCNJ 209 at 225; Okoye v. N.C.F.C. (1991) 7 S.C. (Pt. 111) 33; Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 154 SC.

The best evidence of service of Court process is an affidavit of service. An affidavit of service in proof of service of Court process deposed to by a bailiff or other officer of the Court is prima facie evidence of service. It is settled that an affidavit of service deposed to by the person effecting service, such as a Court bailiff, setting out the fact, place, mode and date of service and describing the document served shall be prima facie proof of the matters stated in the endorsement or affidavit; Okoye v. Centre Point Merchant Bank Ltd (2008) 7-12 S.C. 1. The affidavit of service is however not conclusive proof of service. It is rebuttable.
In circumstances when the authenticity of the affidavit of service is challenged, the party challenging service is expected to depose to an affidavit in opposition to

the affidavit of service. Ismaeel Ahmed v. Nasiru Ahmed (2013) LPELR-21143(SC); Attorney General of Anambra State & Ors v. Okeke & Ors. (2002) LPELR-604(SC).

The Appellant vehemently disputed service on it of the originating processes filed by the 1st-4th Respondents. The proceedings before the trial Court prolixly reproduced above demonstrate that proceedings were conducted without the Appellant. The learned trial Judge first addressed the issue of service and then proceeded to ruled thereon, all suo motu, without giving the Appellant a chance to be heard thereon. The learned trial Judge then continued with the proceedings without the Appellant. The subsequent effort made by the Appellant in the motion seeking to set aside the earlier ruling of the trial Court, by challenging the veracity of the affidavits of service annexed as Exhibits A and B to its supporting affidavit, was discountenanced and dismissed as an abuse of Court process.

What can be termed an abuse of Court process has been judicially very well-articulated. This has been held to include a situation where a party improperly uses judicial process to the irritation,

harassment and annoyance of his opponent and to interfere with the administration of justice. Instances of such improper use include where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter or where the process of the Court has not been used bona fide and properly; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188; Okorodudu v. Okoromadu (1977) 3 SC 21; Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) 659 S.C.; R-Benkay Nigeria Ltd v. Cadbury Nigeria Ltd (2012) LPELR-7820 (SC); First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2012) LPELR-9714 (SC). Each case is examined on its own merit since different conditions would affect a conclusion as to whether or not an abuse exists; Waziri v Gumel (2012) LPELR-7816 (SC).

Upon a dispassionate consideration of the facts leading to this appeal, I am unable to agree with the learned trial Judge that the Appellant’s application constitutes an abuse of process. No aspect of the said application or the circumstances leading to the said application brings it within the purview of the judicial interpretation of

abuse of process. The efforts made by the Appellant to be heard in defence of the application of the 1st-4th Respondents, is evident from the Record of Appeal. The application the Appellant filed for the trial Court to set aside its ruling on the issue of service, which was addressed and decided by the trial Court, without the input of the Appellant, was not in abuse of Court process. It was an attempt by the Appellant to be heard in its defence. There was therefore no improper or vexatious use of the judicial process.

The application of the Appellant ought to have been given judicious consideration by the learned trial Judge. Indeed the averments in the supporting affidavit, which were not seriously controverted by the 1st-4th Respondents, ought to have made the learned trial Judge rule on the application with greater caution. The Appellant was not accorded fair hearing in the circumstance of this case, and the decision reached thereby cannot stand being a nullity. Issues 2 and 3 as distilled by the Appellant; and Issues (iii) and (iv) as formulated by the 1st-4th Respondents are resolved in favour of the Appellant and against the 1st-4th

Respondents.

It would serve no useful purpose to consider the other issues formulated in challenge to the judgment also on appeal, the proceedings which gave rise to the said judgment having been pronounced to be a nullity. It would not be prudent to make pronouncements on the substantive application filed by the 1st-4th Respondents to enforce fundamental rights at this stage. The proper order to make in the circumstance is to set aside the ruling on the issue of service and for the substantive application to be remitted for re-hearing.

This appeal is meritorious. Accordingly, the ruling of the High Court of Cross River State, Ugep Division, delivered by Honourable Justice Michael Edem, J., on March 20, 2012 is hereby set aside.

It is further ordered that the matter be and is hereby remitted to the Chief Judge of Cross River State for hearing de novo before another Judge.

Parties shall bear their respective costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.:
My learned brother, O. A. Otisi, JCA, gave me the privilege of reading before now the judgment just delivered. His Lordship has resolved the issue before

the Court which bothers on non service of the originating process on the Appellant and which rendered the proceedings at the trial Court a nullity.

I am therefore in agreement that this appeal is meritorious and ought to be allowed. I also allow same.

Accordingly, the Ruling of the High Court of Cross River State, Ugep Division, delivered by Michael Edem, J, on the 20th of March, 2012 is hereby set aside.

Consequently, this matter is hereby remitted to the Chief Judge of Cross River State for hearing on the merits before another Judge of the High Court of Cross River State.

I also make no order as to costs.

PAUL OBI ELECHI, J.C.A.:
I have before now read the draft Judgment in this appeal just delivered by my learned brother Onyekachi Aji Otisi, J.C.A.

I agree with the reasoning and conclusion arrived at in allowing the appeal and I also set aside the Ruling of the High Court of Cross River State, Ugep Division delivered by Michael Edem J. on the 20th of March, 2012.

Service in our legal jurisprudence is a condition pre-condition to the exercise of jurisdiction by the Court.

Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab inito. This is based on the principle of Law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service, he does not put up a defence, the Law will assume and rightly too for that matter, that he has no defence.
In Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548, the Supreme Court referred to Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6 and held that:

“It is beyond question that failure to serve process where process is required is a failure which goes to the root of our concept of the proper procedure in Litigation.”
Per N. Tobi, JSC in Eimskip Ltd. v. Exquisito Inf. Ltd (2003) 4 NELT (Pt. 809) 88.

With the above and further consideration of the issues in the lead Judgment, I also allow the appeal and abide by the orders made therein.

Appearances

J. U. Ugbong, Esq. For Appellant

AND

Mrs. J. O. Obono-Obla with I. U. Mgbe, Esq.- 1st – 4th Respondents For Respondent