ADPOBEAM NIG. LTD & ANOR v. OLADEJO (2021)

ADPOBEAM NIG. LTD & ANOR v. OLADEJO

(2021)LCN/15053(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, February 01, 2021

CA/L/589/2009

RATIO

GROUNDS OF APPEAL: SITUATIONS FROM WHICH A GROUND OF APPEAL MAY ARISE

By all odds, it is the law that a ground of appeal should arise from the text of the decision appealed against, but this is not exactly so in all instances. The Appellants’ complaint on the expiration of the writ of summons before it was served raised an issue of competence of the action and the jurisdiction of the lower Court to entertain the same. Even though the Appellants had filed an application at the lower Court challenging the jurisdiction of the lower Court to entertain the matter (see pages 117-120 of the Records); the question of jurisdiction can be raised for the first time on appeal, even before the apex Court: PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHINCAL CO LTD (1992) LPELR (2915) 1 at 23-24 and APC vs. JOHN (2019) LPELR (47003) 1 at 28-29. Furthermore, it is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against, but can arise from extrinsic factors such as the question of jurisdiction. In AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465, Muhammed, JSC stated as follows: “Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case ofMetal Construction (West Africa) Ltd v. D.A. Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (Pt. 126) 299; F.M.B.N. v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following: (a) from the text of the decision appealed against (ipsissima verba). (b) from the procedure under which the claim was initiated (c) from the procedure under which the decision was rendered or (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHAT IS A GROUND OF APPEAL

Now, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. In aliis verbis, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT 342) 76 at 83 and AKPAN vs. BOB (supra) 17 NWLR (PT 1223) 421 at 464. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHAT DETERMINES THE NATURE OR CHARACTER OF A GROUND OF APPEAL

The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground and not how a party has christened the ground. I iterate that it is not how a party christens a ground of appeal that determines what the ground is. The ground must be closely examined to see if it is what the appellant alleges or claims that it is. Therefore the character and nature of the ground of appeal is not what the party labels it, but what the Court finds the ground to be upon an insightful examination. See NNUBIA vs. INTERCONTINENTAL BANK (2015) LPELR (24783) 1 at 12 and TOTAL INTERNATIONAL LIMITED vs. AWOGBORO (1994) LPELR (3261) 1 at 17-18. In OSAYABAMWEN vs. IRORO (2016) LPELR (40804) 1 at 16-17, I had the privilege of stating the legal position in these words: “….a ground of appeal does not become on a question of customary law merely by the ground being christened, as has been done in this case, to be an error in customary law. See AJUWA vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) LPELR (8243) 1 at 24, OKWUAGBALA vs. IKWUEME (2010) LPELR (2538) 1 at 20-21 and NWADIKE vs. IBEKWE (1987) 2 NSCC 1219. The determining factor in ascertaining the nature or character of the ground is the real issue or complaint raised in the ground. The cognomen of the ground is not a determinant. See ABIDOYE vs. ALAWODE (2001) LPELR (35) 1 at 12, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 23) 484 at 488 and TOTAL INTERNATIONAL LTD vs. AWOGBORO (1994) LPELR (3261) 1 at 17.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

RELEVANCE OF THE SERVICE OF HEARING NOTICE

Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6, the apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LEPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504. The law is that a hearing notice is the only means of getting a party to appear in Court. Therefore the issuance of hearing notice from day to day on the absent party is imperative. The consequence of non-service of the hearing notice is that the entire proceedings, no matter how well conducted would be vitiated. This is the prescriptible effect of the right enshrined in both the common law principle of audi alteram partem and the constitutional right to fair hearing enshrined in Section 36 (1) of the 1999 Constitution. See generally DARMA vs. ECOBANK (2017) LPELR (41663) 1 at 35-36 (SC). The paramount question remains whether in fact the Appellants were served with a hearing notice against the adjourned date for the hearing of the Respondent’s application. Doubtless, the Appellants were not served with a hearing notice. In ACHUZIA vs. OGBOMAH (2017) LPELR (40050) 1 at 28, the apex Court held as follows: “The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous date.” See also A-G RIVERS STATE vs. UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY vs. PRUDENTIAL CO-OPERATIVE MICRO-FINANCE BANK (2014) LPELR (22700) 1 at 33-34 and NWAKAJI vs. OSAROLUKA (2014) LPELR (22677) 1 (CA). So there remained a bounden duty on the lower Court to serve a hearing notice on the Appellants since they were not in Court when the matter was adjourned. Furthermore, the lower Court was equally duty bound to ascertain if a hearing notice was served on the Appellants before proceeding any further with the hearing of the matter on the adjourned date. From the records, it is limpid that hearing notice against the fixture of the date when the Respondent’s application for judgment was heard was neither issued nor served on the Appellants. It is the constitutional right of a party to be notified of the fixture of a matter for hearing. It is only such notification by the issuance and service of a hearing notice that will afford the party the opportunity of a hearing. It is incumbent on a trial Court to ensure that the basic minimum constitutional requirement of notifying the Appellants by service of hearing notice on them was complied with. Unfortunately, the lower Court did not ascertain whether the Appellants were served with hearing notice. A hearing notice has been defined as a process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented: FOLORUNSHO vs. SHALOUB (1994) 3 NWLR (PT 333) 413 at 430, SO MAI SONKA CO. (NIG) LTD vs. ADZEGE (2001) 9 NWLR (PT 718) 312 and MADUEKE vs. MADUEKE (2011) LPELR (4532) 1 at 22-23. Without ensuring that this basic minimum constitutional requirement of putting parties on notice had been compiled with, the lower Court proceeded with the matter when the Respondent appeared and the Appellants were not in Court. Without a doubt, the fact that a party is in Court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. It is the bounden duty of the Court to ensure that a hearing notice was served on the party who is absent. Where there is no such evidence, to embark on a hearing may be a waste of time, energy and cost, as the decision reached may eventually be declared a nullity and set aside on appeal. Equally, the party affected is entitled to have the same set aside ex debito justitiae. This is because the whole proceedings being a nullity, one cannot foist something on nothing: MACFOY vs. UAC (1962) AC 152 at 160. The Latinism is ex nihilo, nihil fit, out of nothing, nothing comes: MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44.
The service of hearing notice is a rudimentary and hornbook procedure since the issue of service occupies a pre-eminent position in the adjudicatory process and goes to the very root of the exercise of judicial powers and judicialism. Any proceedings conducted where service had not been effected on a party who is entitled to a hearing amounts to a violation of the right of fair hearing. As stated by Nnaemeka-Agu, JSC of blessed memory inKOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard had in fact been given the opportunity of a hearing. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the decision reached is bound to be set aside. See also OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 at 605. The Appellants were entitled to be heard before a decision was reached on the Respondent’s application for judgment. They were not given the opportunity of a hearing as hearing notice was not served on them to notify them of the hearing date. The fact that the Appellants were not in Court when the matter was adjourned made more crucial the need to comply with the basic minimum constitutional imperative that they be served a hearing notice so as to be given the opportunity of a hearing on the adjourned date. See FIRST BANK vs. UDEOZO (supra), MANKANU vs. SALMAN (supra) at 292-293, OGUNDOYIN vs. ADEYEMI (2001) LPELR (2335) 1 (SC) and AKINNIRAN vs. ADE (2017) LPELR (42175) 1 at 11-19.
Forgive me for being circular and repetitive, but repetition helps to drive home the point. So though it may be prolix, but I iterate that the essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks the jurisdiction to entertain the matter. See ESSIEN vs. EDET (2004) 5 NWLR (PT 867) 519, BADA vs. ATUNBI (2011) LPELR (9265) 1 at 11-14 and COMPAGNIE GENERALE DE GEOPHYSIQUE NIG LTD vs. AMINU (2015) LPELR (24463) 1 at 19-20. The object of service of process is to give the party notice of the action and when it is to be heard, so that he can take steps to resist the action if he so desires: KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 14. It is beyond question that failure to serve process where service of process is required goes to the root of our conception of the proper procedure in litigation. Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service, the subsequent proceedings are a nullity, ab initio. Where a party is not aware of a fixture for hearing because he was not served, the proceedings conducted will be null and void. See SKENCONSULT (NIG) LTD vs. UKEY (supra), EIMSKIP LTD vs. EXQUISITE INDUSTRIES (NIG) LTD (2003) LPELR (1058) 1 at 39-40, SGBN vs. ADEWUMI (2003) 10 NWLR (PT 829) 526 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 7-12 SC 1. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

1. ADPOBEAM NIGERIA LIMITED 2. MR. ODUSOLE APPELANT(S)

And

CHIEF EZEKIEL OLADOSU OLADEJO RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the action instituted by the Respondent against the Appellants before the High Court of Lagos State in SUIT NO. ID/549/2003: CHIEF EZEKIEL OLADOSU OLADEJO vs. ADPOBEAM NIGERIA LIMITED & ANOR. In the said action, the Respondent claimed for outstanding salaries, emoluments and entitlements owed to him by the Appellants, interest thereon at the prevailing bank rate of 30% per annum and cost of legal expenses.

Upon being served with the Court processes, the Appellants, inter alia, filed an application on 4th July 2007, challenging the jurisdiction of the lower Court to entertain the action on the ground that the writ of summons had expired before it was served on them. On his part, the Respondent filed an application on 24th January 2007 for final judgment to be entered against the Appellants for failure to file processes or take any steps in the matter. At the proceedings of 22nd October 2007, the lower Court ordered that the Appellants’ application challenging the jurisdiction of the Court would be taken first.

After several adjournments,

the lower Court, without resolving the application challenging its jurisdiction, took the Respondent’s application on 6th May 2008 and in a considered Ruling delivered on 2nd July 2008, it granted the application and entered judgment for the Respondent as claimed. The Appellants, piqued by the said decision appealed against the same. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 14th July 2010, while the scarified decision of the lower Court is at pages 136-137 of the Records.

The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument was filed on 18th August 2010 wherein three issues were nominated for determination as follows:
“1) Whether the refusal or failure of the Lower Court to hear and determine the Appellants application challenging the competence of the suit and jurisdiction of the Lower Court was a violation of the Appellant’s [sic] fundamental right to fair hearing under the 1999 Constitution of the Federal Republic of Nigeria.
2) Whether the Lower Court has

jurisdiction to entertain the suit when the writ of summons had long expired before it [sic] services on the Appellants.
3) Whether the reliefs sought by the Respondents [sic] on the writ of summons being special damages in nature ought to be granted by way of motion for judgment without calling oral evidence in support of same.”

The Respondent’s Brief of Argument was filed on 30th September 2010. The Respondent adopted the issues crafted by the Appellants and proceeded to formulate a fourth issue for determination, scilicet:
“Whether the Respondent’s claim being one to recover outstanding known and stated salaries together with interest can be referred as a claim for special damages as alleged by the Appellants?”

The Respondent further filed a Notice of Preliminary Objection on 22nd January 2010, challenging the competence of the appeal. The grounds upon which the objection is predicated are as follows:
“1. That this Honourable Court lacks jurisdiction to entertain this Appeal on the following grounds:
(a) That the Appeal seeks to determine issues the Appellant/Respondent refused, neglected

and/or failed to present before the lower Court.
(b) That the Appeal seeks to determine issues contained in the Statement of Defence for the first time on Appeal to this Court whilst evading the payment of the mandatory penalties imposed by the High Court of Lagos State (Civil Procedure) Rules 2004, necessary for regularisation of their Statement of Defence.
(c) That in the light of the foregoing the Appeal seek [sic] to convert this Court to a trial Court, (i.e a Court of first instance for purposes of determining the issue of validity of the Writ of Summons in Suit No. ID/549/2003) whereas the Appellant/Respondent refused, neglected and/or failed to present the same before the lower Court.
2. That the Appeal is an abuse of the process of this Court.”

The Respondent filed a brief of argument in support of the preliminary objection on 6th August 2010. In the said brief, four issues were distilled for determination in the preliminary objection, videlicet:
1. Whether the Appellants/Respondents can raise as Grounds and Issues of Appeal in their several processes severally captioned Notice of Appeal dated 9th July 2008, Proposed

Additional Grounds of Appeal and the Amended Notice of Appeal dated 14th July 2010; Grounds/Issues that did not arise from the Judgment of the lower Court?
2. Whether the Appellants/Respondents who refused (despite over 40 adjournments) to comply with the Rules of the lower Court on the regularization of their Statement of Defence, can approach this Court to determine any Issue arising therefrom; the same not arising from the Judgment of the lower Court?
3. Whether the sole recurring Issue in all the Grounds in the Notice of the Appeal dated 9th July 2008, Proposed Additional Grounds of Appeal and the Amended Notice of Appeal dated 14th July 2010; being that the Writ of Summons expired before its service on the 2nd Appellant is not a factual Issue as against this Appeal being on grounds of law?
4. Whether if the foregoing are answered against the Appellants/Respondents, there being no valid Notice of Appeal or Amended Notice of Appeal before this Court, this Appeal cannot be properly described as a gross abuse of the process which this Court owes a duty to dismiss?

The Appellants filed their Argument Against Preliminary Objection of the

Respondent on 4th November, 2020. The Appellants did not distil any issues. They proceeded to make their replication to the submissions of the Respondent.

At the hearing of the appeal, the learned counsel for the parties relied on their respective processes in urging the Court to uphold their submissions in the determination of the appeal. The starting point in the consideration and resolution of this matter will be the Respondent’s preliminary objection which is threshold in nature. I will presently review the submissions of learned counsel on the preliminary objection and then seamlessly resolve the same en bloc.

RESPONDENT’S SUBMISSIONS ON THE PRELIMINARY OBJECTION
The Respondent submits that the issue of the expired writ of summons did not arise from the decision of the lower Court and that an appellant will not be allowed on appeal to raise a question that was not considered by the trial Court vide CO-OPERATIVE & COMMERCE BANK PLC vs. EKPERI (2007) 1 SC (PT II) 130, JADESIMI vs. OKOTIE-EBOH (1995-1996) 3 ALL NLR 385 at 397 and ADEOSUN vs. AKINYEMI (2007) 4 NWLR (PT 1023) 47 at 62.

It is the further submission of the

Respondent that Rules of Court are meant to be obeyed and that since the Appellants failed to regularise their Statement of Defence at the lower Court, they cannot on appeal, seek to have any issue in the said defence decided, since the lower Court did not consider the same. The cases of THE OWNERS OF THE MV ‘ARABELLA’ vs. NAIC (2008) 5-6 SC (PT II) 189 and ADEDIRAN vs. INTERLAND TRANSPORT LTD (1991-1992) ALL NLR 98 at 118 were relied upon.

Arguing the third issue he formulated, the Respondent posits that the issue of expiration of the writ of summons is an issue of fact and that the ground of appeal complaining about error in law on the issue must therefore fail. The appeal, it was stated, did not come within Section 241 (1) (b) of the 1999 Constitution which deals with appeals on grounds of law.

The Respondent conclusively submitted on the fourth issue that a favourable resolution of the first three issues would signpost that the appeal is an abuse of process of Court and ought to be dismissed. The cases of AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIGERIA LIMITED (2003) 5 MJSC 104 at 121 and AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 were referred to.

APPELLANTS’ SUBMISSIONS ON THE PRELIMINARY OBJECTION
The Appellants contend that they challenged the validity of the writ of summons in their application before the lower Court challenging the jurisdiction of the lower Court to entertain the action. It was stated that the lower Court failed to consider the application and so an appeal will lie. It was opined that even if the Statement of Defence was filed out of time, it only made the Statement of Defence voidable and that the same remained valid until struck out vide UBA vs. NWORA (1978) 11 NSCC 59.

It was asserted that the lower Court having held that it would hear the Appellants’ application challenging its jurisdiction first, no other application can be heard unless the said order is set aside. It was conclusively opined that the lower Court was bound to first consider the application challenging its jurisdiction first, and that failure to do so was a denial of the Appellants’ right to fair hearing. The case of ODEDO vs. OGUEBEGO (2015) 13 NWLR (PT 1914) 36 was cited in support.

RESOLUTION OF THE PRELIMINARY OBJECTION
The quiddity of the Respondent’s contention is that the issue of the validity of the writ of summons having expired before it was served was raised by the Appellants in their Statement of Defence which was not regularised as required by the Rules of the lower Court and that the lower Court never made any pronouncement of the said issue. It was therefore contended that not having arisen from the decision appealed against, the Appellants cannot be heard to ventilate the same.
By all odds, it is the law that a ground of appeal should arise from the text of the decision appealed against, but this is not exactly so in all instances. The Appellants’ complaint on the expiration of the writ of summons before it was served raised an issue of competence of the action and the jurisdiction of the lower Court to entertain the same. Even though the Appellants had filed an application at the lower Court challenging the jurisdiction of the lower Court to entertain the matter (see pages 117-120 of the Records); the question of jurisdiction can be raised for the first time on appeal, even before the apex Court: PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHINCAL CO LTD (1992) LPELR (2915) 1 at 23-24

and APC vs. JOHN (2019) LPELR (47003) 1 at 28-29. Furthermore, it is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against, but can arise from extrinsic factors such as the question of jurisdiction. In AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465, Muhammed, JSC stated as follows:
“Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case ofMetal Construction (West Africa) Ltd v. D.A. Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (Pt. 126) 299; F.M.B.N. v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the text of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or

(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.”
In the circumstances, flowing from the omission or failure by the lower Court to consider and decide the Appellants’ challenge to its jurisdiction, the ground of appeal on the validity of the writ of summons vis a vis the jurisdiction of the lower Court was properly raised, irrespective of the fact that it does not stem from the ipsissima verba of the decision of the lower Court.

The further contention of the Respondent is that the question of whether the writ of summons had expired is a question of fact and that the same would not come within the purview of Section 241 (1) (b) of the 1999 Constitution, given the fact that the Appellants’ complaint in their grounds of appeal is about error in law. Now, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which

the decision should be set aside. In aliis verbis, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT 342) 76 at 83 and AKPAN vs. BOB (supra) 17 NWLR (PT 1223) 421 at 464. The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground and not how a party has christened the ground.
I iterate that it is not how a party christens a ground of appeal that determines what the ground is. The ground must be closely examined to see if it is what the appellant alleges or claims that it is. Therefore the character and nature of the ground of appeal is not what the party labels it, but what the Court finds the ground to be upon an insightful examination. See NNUBIA vs. INTERCONTINENTAL BANK (2015) LPELR (24783) 1 at 12 and TOTAL INTERNATIONAL LIMITED vs. AWOGBORO (1994) LPELR (3261) 1 at 17-18. In OSAYABAMWEN vs. IRORO (2016) LPELR (40804) 1 at 16-17, I had the privilege of stating the legal position in these words:
“….a ground of appeal does not become on a

question of customary law merely by the ground being christened, as has been done in this case, to be an error in customary law. See AJUWA vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) LPELR (8243) 1 at 24, OKWUAGBALA vs. IKWUEME (2010) LPELR (2538) 1 at 20-21 and NWADIKE vs. IBEKWE (1987) 2 NSCC 1219. The determining factor in ascertaining the nature or character of the ground is the real issue or complaint raised in the ground. The cognomen of the ground is not a determinant. See ABIDOYE vs. ALAWODE (2001) LPELR (35) 1 at 12, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 23) 484 at 488 and TOTAL INTERNATIONAL LTD vs. AWOGBORO (1994) LPELR (3261) 1 at 17.”
Howbeit, Section 241 (1) of the 1999 Constitution which the Respondent has referred to deals with when an appeal will lie as of right to this Court. The said stipulation creates an appeal as of right against final decisions in any civil or criminal proceedings [See Section 241 (1) (a)]. The decision of the lower Court appealed against is a final decision, so the Appellants can appeal against the same as of right and in that situation, it is of no

moment if the grounds of appeal are grounds of law simpliciter, grounds of fact or grounds of mixed law and fact. Section 241 (1) (b) of the 1999 Constitution on which the Respondent has anchored his submissions has no application in this matter. The said provision deals with appeal on grounds of law alone against a decision which is not final decision. The decision appealed against is a final decision. The Appellants can appeal as of right against the same on facts as well as on law. In the diacritical circumstances of this matter, it absolutely makes no difference if the Appellant christened the ground of appeal incorporating issue of facts as a ground alleging error in law. See NWOSU vs. OFFOR (1997) LPELR (2130) 1 at 12, IWUEKE vs. IBC (2005) LPELR (1567) 1 at 17-18 and ODUOLA vs. COKER (1981) LPELR (2254) 1 at 61.
In splice, since the appeal raised the issue of jurisdiction, the complaint does not have to arise entirely from the ipsissima verba of the decision appealed against. Furthermore, the appeal being against a final decision can be brought as of right on grounds of law, fact or mixed law and fact: IWUEKE vs. IBC (supra). Consequently, the

appeal is proper and valid and it is not an abuse of process of the Court. The preliminary objection is bereft of any merit. It fails and it is accordingly dismissed. We now segue to consider the merits of the substantive appeal.

THE APPEAL
I have already set out the issues for determination distilled by the Appellants and which were adopted by the Respondent. I have also set out the fourth issue distilled by the Respondent. With due deference to the Respondent, the fourth issue he formulated is faineant. This is on account of the fact that the said issue is the antithesis of the Appellants’ issue number three which the Respondent adopted. The success or failure of the said issue number three would impact directly on the said issue number four without more. The inutility of the said issue number four is further underscored by the fact that the Respondent’s submissions on his said issue number four is largely a re-argument of the submissions he made under issue number three. Accordingly, I will discountenance the said issue number four as formulated by the Respondent for being inutile and resolve this appeal based on the three issues crafted by the Appellants.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the validity of the writ of summons by which the Respondent instituted the action had expired before the same was served on them. It was asserted that the writ of summons was defective, dead and void and that the lower Court consequently had no jurisdiction to entertain the suit. The lifespan of a writ of summons was stated to be twelve months and that any writ not served within its lifespan becomes void and dead, especially as in this case when the writ of summons was never renewed. It was opined that parties cannot confer jurisdiction on the Court and cannot waive jurisdiction, just as a Court cannot assume jurisdiction, where it does not have jurisdiction, under the guise of doing substantial justice. The cases of OKOLO vs. UBN LTD (2004) 3 NWLR (PT 859) 87 at 108, ACTION CONGRESS vs. INEC (2007) 18 NWLR (PT 1065) 50 and MOBIL PRODUCING NIG UNLTD vs. MONOKPO (2003) 18 NWLR (PT 852) 346 at 434-435 were referred to.

It was further posited that the Appellants did not waive the issue of jurisdiction as they had filed an application challenging the

jurisdiction of the lower Court, which application was neither heard nor struck out. The challenge to jurisdiction, it was maintained, ought to be taken first before anything else vide THE STATE vs. ONAGORUWA (1992) 2 SCNJ (PT I) 308 and OFIA vs. EJEM (2006) 11 NWLR (PT 992) 652 at 663.

The Appellants further contended that they were not served with a hearing notice of the date when the Respondent’s application for judgment was heard and that despite the Appellants’ pending application challenging the jurisdiction of the lower Court, the said application remained untouched and the lower Court proceeded to enter judgment for the Respondent. Jurisdiction, it was asserted, ought to be considered and resolved first as proceedings conducted where there is no jurisdiction are a nullity. The cases of BOGBAN vs. DIWHRE (2005) 16 NWLR (PT 951) 274 at 304, OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520, NDIC vs. CBN (2002) 3 SC 1, APP vs. OGUNSOLA (2002) 15 WRN 137 at 150 and EBODAGHE vs. OKOYE (2004) 11-12 SC 24 at 27-28 were relied upon. It was stated that a Court must hear every application filed before it and that it was a denial of the

Appellants’ right to fair hearing when the lower Court proceeded to enter judgment in favour of the Respondent without disposing of the Appellants’ application challenging the jurisdiction of the Court vide ONYEKWULUJE vs. ANIMASHAUN (1996) 3 NWLR (PT 439) 637.

The Appellants maintained that they were not aware of the hearing date for the Respondent’s application as no hearing notice was served on them and that it was a deprivation of their right to fair hearing. The Appellants referred to page 130 of the Records and submitted that the decision of the lower Court was based on an application said to be dated 3rd January, 2007, which application is non-existent and that no such application was served on them. The denial of the right to fair hearing on account of non-service of hearing notice, it was asserted, vitiated the proceedings. The cases of SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 40, FALADU vs. KWOI (2002) FWLR (PT 113) 365 at 375, ANTIA vs. ASUQUO (1990) 5 NWLR (PT 151) 446 at 456-457, SBN PLC vs. CROWN STAR & CO LTD (2003) 6 NWLR (PT 815) 1 and OGUNDOYIN vs. ADEYEMI (2001) 12 NWLR (PT 730) 403 at 420-421 were called in aid.

The Appellants further contend that the reliefs claimed by the Respondent are in the nature of special damages which must be strictly proved by credible evidence vide XTOUDUS SERVICES NIGERIA LTD vs. TAISEI (W. A.) LTD (2006) 11 MJSC 167 at 183 and AKINKUGBE vs. EWULUM HOLDINGS NIG LTD (2008) 4 SC 125 at 157. It was opined that no evidence was led in proof of the special damages claimed and that the judgment of the lower Court ought to be set aside. The cases ofIWUEKE vs. IBC (supra) at 129-130 and OKE vs. AIYEDUN (1986) 1 NWLR (PT 23) 548 were cited in support.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that it was the Appellants who elected not to adopt the written address in support of their application challenging the jurisdiction of the lower Court, and therefore the lower Court could not be said to have refused to hear the application. It was submitted that the Appellants failed to comply with the rules of Court on entry of appearance and they could therefore not present any application challenging the jurisdiction of the lower Court. Rules of Court, it was asserted, must be obeyed vide THE OWNERS OF THE MV ‘ARABELLA’ vs. NAIC (supra).

It was further submitted that the Appellants have on appeal challenged the service of the Respondent’s motion for judgment dated 23rd January, 2007 for the first time in their Appellants’ Brief of Argument. It was stated that the records show the service of the motion on the Appellants and that the Appellants’ contention in that regard is an afterthought since the presumption of legality inures in favour of judicial proceedings. The case of MINISTER FOR WORKS & HOUSING vs. TOMAS NIG LTD (2001) 48 WRN 119 at 151 was referred to.

The Respondent posits that the issue of the expiration of the writ of summons does not arise from the decision of the lower Court and so cannot be made a ground of appeal. It was stated that the issue of whether the writ of summons had expired or not was a factual issue and cannot be a ground of law under Section 241 (1) (b) of the 1999 Constitution. It was asserted that the originating processes which were timeously served on the Appellants as held by the lower Court in its Ruling of 7th February, 2006, which the Appellants did not appeal against, could not have

expired. It was further stated that the 2nd Appellant was served with the Court processes after the lower Court had ordered for substituted service on him. The Appellants, it was maintained, did not place sufficient materials before the Court to establish that the lower Court lacked jurisdiction to entertain the action because the writ of summons had expired before it was served on the Appellants.

The further submission of the Respondent is that the Appellants were duly served with the Court processes but they elected not to respond to the motion for judgment. It was stated that the Appellants having slept on their right to file their Statement of Defence cannot complain as they are taken to have admitted the facts pleaded by the Respondent. The cases of EDEM vs. CANON BALL LTD (1998) 6 NWLR (PT 553) 293, OKOEBOR vs. POLICE COUNCIL (2003) 12 NWLR (PT 834) 444 and MOZIE vs. MBAMALU (2006) 7 SC (PT II) 154 at 160 were relied upon. It was asserted that the lower Court rightly entered judgment for the Respondent since the Respondent’s action was for pecuniary damages under Order 10 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 2004

vide MAJA vs. SAMOURIS (2002) 3 SC 37 and Black’s Law Dictionary, 8th Edition, page 1167 on the meaning of pecuniary. The Respondent in arguing his issue number four rehashed his submissions under Issue number three on special, pecuniary damages and liquidated money demands and opined that his claims are essentially monetary in nature and qualify as one for pecuniary damages.

RESOLUTION OF THE APPEAL
The Appellants have ventilated their grouch in this appeal on three main planks. First is the contention on denial of the right to fair hearing as they were not served with hearing notice of the date when the Respondent’s application was taken. Secondly is the contention that the lower Court ought to have first resolved the Appellants’ objection to its jurisdiction to entertain the matter on the ground that the writ of summons had expired before the same was served. The third plank is that by the nature of the reliefs claimed, the Respondent ought to have adduced credible evidence in order to be entitled to judgment.

The Appellants’ contention on the service vel non of hearing notice is far reaching in its consequence where

it is established that there was in fact no service. So it is to the Records, the holy grail so to say of what transpired at the lower Court, that we will turn to in order to ascertain if the Appellants were on notice of the hearing date when the Respondent’s application was heard by the lower Court. The pertinent record of proceedings of the lower Court are reproduced at pages 130-131 and 133-135 of the Records of Appeal.

At the proceedings of 22nd October, 2007, the learned counsel for the parties were in Court and the lower Court adjourned the matter for hearing of the Appellants’ application challenging the jurisdiction of the Court (see page 130 of the Records). On the adjourned date, the learned counsel were in Court but argument on the application was not taken, whereupon the matter was further adjourned (see pages 130-131 of the Records). Thereafter, there was the intervening strike action by judiciary staff and on the next date the matter came up on record, the Appellants and their counsel were absent and learned counsel for the Respondent informed the Court of the Respondent’s

pending motion for judgment without mentioning the Appellants’ application challenging the jurisdiction of the Court, which the lower Court had stated would be taken first. The lower Court then adjourned the matter for hearing and did not make any order for hearing notice to be served on the Appellants. (See pages 133-134 of the Records. On the adjourned date, the Appellants and their counsel were once again absent and without ascertaining if they were aware of the hearing date, the lower Court took argument on the Respondent’s application for judgment and thereafter adjourned for Ruling on the application. (See page 134 of the Records).

It is effulgent from the Records that the Appellants were not on notice of the hearing date when the Respondent’s application was argued. Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6, the apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with

the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LEPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504.
The law is that a hearing notice is the only means of getting a party to appear in Court. Therefore the issuance of hearing notice from day to day on the absent party is imperative. The consequence of non-service of the hearing notice is that the entire proceedings, no matter how well conducted would be vitiated. This is the prescriptible effect of the right enshrined in both the common law principle of audi alteram partem and the constitutional right to fair hearing enshrined in Section 36 (1) of the 1999 Constitution. See generally DARMA vs. ECOBANK (2017) LPELR (41663) 1 at 35-36 (SC). The paramount question remains

whether in fact the Appellants were served with a hearing notice against the adjourned date for the hearing of the Respondent’s application. Doubtless, the Appellants were not served with a hearing notice. In ACHUZIA vs. OGBOMAH (2017) LPELR (40050) 1 at 28, the apex Court held as follows:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous date.”
See also A-G RIVERS STATE vs. UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY vs. PRUDENTIAL CO-OPERATIVE MICRO-FINANCE BANK (2014) LPELR (22700) 1 at 33-34 and NWAKAJI vs. OSAROLUKA (2014) LPELR (22677) 1 (CA). So there remained a bounden duty on the lower Court to serve a hearing notice on the Appellants since they were not in Court when the matter was adjourned. Furthermore, the lower Court was equally duty bound to ascertain if a hearing notice was served on the Appellants before proceeding any further with the hearing of the matter on the adjourned date.
From the records, it is limpid that hearing notice against

the fixture of the date when the Respondent’s application for judgment was heard was neither issued nor served on the Appellants. It is the constitutional right of a party to be notified of the fixture of a matter for hearing. It is only such notification by the issuance and service of a hearing notice that will afford the party the opportunity of a hearing. It is incumbent on a trial Court to ensure that the basic minimum constitutional requirement of notifying the Appellants by service of hearing notice on them was complied with. Unfortunately, the lower Court did not ascertain whether the Appellants were served with hearing notice. A hearing notice has been defined as a process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented: FOLORUNSHO vs. SHALOUB (1994) 3 NWLR (PT 333) 413 at 430, SO MAI SONKA CO. (NIG) LTD vs. ADZEGE (2001) 9 NWLR (PT 718) 312 and MADUEKE vs. MADUEKE (2011) LPELR (4532) 1 at 22-23.
Without ensuring that this basic minimum

constitutional requirement of putting parties on notice had been compiled with, the lower Court proceeded with the matter when the Respondent appeared and the Appellants were not in Court. Without a doubt, the fact that a party is in Court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. It is the bounden duty of the Court to ensure that a hearing notice was served on the party who is absent. Where there is no such evidence, to embark on a hearing may be a waste of time, energy and cost, as the decision reached may eventually be declared a nullity and set aside on appeal. Equally, the party affected is entitled to have the same set aside ex debito justitiae. This is because the whole proceedings being a nullity, one cannot foist something on nothing: MACFOY vs. UAC (1962) AC 152 at 160. The Latinism is ex nihilo, nihil fit, out of nothing, nothing comes: MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44.
The service of hearing notice is a

rudimentary and hornbook procedure since the issue of service occupies a pre-eminent position in the adjudicatory process and goes to the very root of the exercise of judicial powers and judicialism. Any proceedings conducted where service had not been effected on a party who is entitled to a hearing amounts to a violation of the right of fair hearing. As stated by Nnaemeka-Agu, JSC of blessed memory inKOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard had in fact been given the opportunity of a hearing. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the decision reached is bound to be set aside. See also OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 at 605.
The Appellants were entitled to be heard before a decision was reached on the Respondent’s application for judgment. They were not given the opportunity of a hearing

as hearing notice was not served on them to notify them of the hearing date. The fact that the Appellants were not in Court when the matter was adjourned made more crucial the need to comply with the basic minimum constitutional imperative that they be served a hearing notice so as to be given the opportunity of a hearing on the adjourned date. See FIRST BANK vs. UDEOZO (supra), MANKANU vs. SALMAN (supra) at 292-293, OGUNDOYIN vs. ADEYEMI (2001) LPELR (2335) 1 (SC) and AKINNIRAN vs. ADE (2017) LPELR (42175) 1 at 11-19.
Forgive me for being circular and repetitive, but repetition helps to drive home the point. So though it may be prolix, but I iterate that the essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks the jurisdiction to entertain the matter. See ESSIEN vs. EDET (2004) 5 NWLR (PT 867) 519, BADA vs. ATUNBI

(2011) LPELR (9265) 1 at 11-14 and COMPAGNIE GENERALE DE GEOPHYSIQUE NIG LTD vs. AMINU (2015) LPELR (24463) 1 at 19-20.
The object of service of process is to give the party notice of the action and when it is to be heard, so that he can take steps to resist the action if he so desires: KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 14. It is beyond question that failure to serve process where service of process is required goes to the root of our conception of the proper procedure in litigation. Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service, the subsequent proceedings are a nullity, ab initio. Where a party is not aware of a fixture for hearing because he was not served, the proceedings conducted will be null and void. See SKENCONSULT (NIG) LTD vs. UKEY (supra), EIMSKIP LTD vs. EXQUISITE INDUSTRIES (NIG) LTD (2003) LPELR (1058) 1 at 39-40, SGBN vs. ADEWUMI (2003) 10 NWLR (PT 829) 526 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 7-12 SC 1.
The concatenation of the foregoing is that the failure to serve a hearing notice on the Appellants against the hearing date of the

Respondent’s application for judgment is a fundamental vice which occasioned a breach of the Appellants’ right to a fair hearing. It went to the root of the case and rendered the proceedings a nullity: FIRST BANK OF NIG PLC vs. T.S.A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 71-72 and INEC vs. DPP (2014) LPELR (22809) 1. Put simply, given the circumstances, the decision arrived at by the lower Court cannot be allowed to stand. An appellate Court must interfere in order to ensure that justice is done. See GUINNESS (NIG.) PLC vs. UFOT (2008) FWLR (PT 412) 1113.

CONCLUSION
The manner of the resolution of the plank on the issue of non-service of hearing notice on the Appellants makes inutile the consideration of the other two planks of the Appellants’ grouch. This is so because as already stated the failure to serve a hearing notice resulted in a denial of fair hearing which is fatal to the decision of the Court. In SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44, Wali, JSC stated:
“It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the

requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. The result is that the decision of the trial Court and Court below confirming that decision must be set aside. The case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.”
Furthermore, there is also the need not to pre-judge the Appellants’ application

challenging the jurisdiction of the lower Court since the proceedings where the said application should have been taken have been declared a nullity, necessitating a de novo hearing. In a summation, this appeal is immensely meritorious. The same succeeds. The decision of the lower Court delivered on 2nd July, 2008, entering judgment for the Respondent as per the writ of summons and statement of claim is hereby set aside. The case is remitted to the lower Court for hearing de novo by another judge, to be assigned by the Chief Judge of the High Court of Lagos State; not being L. G. A. Marsh, J. The Appellants are entitled to the sum of N100,000.00 as costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brethren, Ugochukwu Anthony Ogakwu, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, the Hon. Justice Ugochukwu Anthony Ogakwu, JCA, afforded me with the opportunity to read the draft of the lead judgment delivered a moment ago. I agree that the appeal is meritorious and deserves to be allowed. I too allow it.

I agree with the lead judgment that the matter be remitted to the Honourable

Chief Judge of the lower Court for the reassignment to another judge other than the trial judge.
I abide with the consequential order made as to costs.
Appeal succeeds.

Appearances:

JAMES SONDE, ESQ. For Appellant(s)

AYETENI, ESQ. For Respondent(s)