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AIRTEL NETWORKS LTD v. ABIA STATE IRS & ANOR (2022)

AIRTEL NETWORKS LTD v. ABIA STATE IRS & ANOR

(2022)LCN/16123(CA)

In the Court of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/315/2018

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

AIRTEL NETWORKS LIMITED APPELANT(S)

And

1. ABIA STATE INTERNAL REVENUE SERVICE 2. ZENITH BANK PLC RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON SERVICE OF COURT PROCESSES

The law is clear that where any notice or any other processes is required to have an address for Service, it shall not be deemed to have been properly filed unless such address has been endorsed on it. ADEGBOLA & ORS V. IDOWU & ORS (2017) LPELR-42105 (S.C.), IHEDIOHA V NWOSU & ORS (2019) LPELR-52790 (S.C.).
The result is that the trial Court was wrong to have based its ruling on processes that have not been served on parties.
If a party has not been served with a statement of claim so ordered by the Court or as required by the rules of the Court, any proceeding based on it is null and void. That indicates that the Court gave Judgement without jurisdiction.
PER PEMU, J.C.A.

THE IMPORTANCE OF SERVICE OF PROCESSES ON A DEFENDANT

Service of process on the Defendant so as to enable him appear to defend the relief being sought against him is one of the conditions precedent for the Court to be competent to assume jurisdiction, I hold.
See Compact Manifold & Energy Services Ltd v Pazan Services Nigeria LTD (2020) 1 NWLR Part 1704 page 70 at 91 Para B – D Per Galumje JSC; Achuzia v Ogbomah (2016) 11 NWLR Part 1522 Page 59 at 72 para E – G Per Okoro JSC. PER ADEFOPE-OKOJIE, J.C.A.:

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Abia State holden at Umuahia delivered on the 17th day of May, 2018, in Suit No HU/M/SC.43/2016.

SYNOPSIS OF FACTS
The Court below had been prayed to set aside its judgment delivered on 9th day of February, 2017, on the ground that the Appellant was not served with the Respondents’ originating motion dated 28th day of November 2016, thereby divesting the trial Court of the jurisdiction to entertain the motion on notice.

In its ruling on 17th day of May 2018, the Court below dismissed the Appellant’s Motion on Notice.

The Appellant is dissatisfied with the judgment, and pursuant to the Practice Directions of this Honourable Court, filed a Notice of Appeal on the 3rd day of May 2018, with two (2) Grounds of Appeal. Pages 266 – 269 of the Record of Appeal.

The Appellant filed his brief of Argument on the 8th day of September 2020. It was deemed filed on the 13th day of October 2021. It is settled by Tochukwu Maduka, Esq.

​The Respondents brief was filed on the 4th day of October 2021, but same was deemed on the 13th day of October 2021. It is settled by Obike Onyemere, Esq.

The Appellants reply brief was filed on the 24th day of November 2021.

On the 9th day of March 2022, the parties adopted their respective briefs of Argument.

The Appellant distilled a sole issue for determination viz:-
CONSIDERING ALL THE FACTS AND MATERIALS BEFORE IT, WAS THE TRIAL COURT RIGHT TO HAVE REFUSED TO SET ASIDE ITS JUDGMENT DELIVERED ON 9TH FEBRUARY 2017?

The Respondent adopted this sole issue for determination in paragraph 3.1 in his brief of Argument.

It is the Appellant’s contention that the lower Court was wrong to have entered judgment in favour of the Respondents without the Appellant being served with the Court processes. That the Court should have set aside the Judgement, the Appellant having shown that he was not served with the Court processes.

RESOLUTION
From Records, there is an affidavit of service on the Appellant – page 12 of the Record of Appeal. From Records, the originating motion had no address for service, pages 1 – 4 of the Record of Appeal. The affidavit of service has the address for service of the Defendant (Appellant in this present Appeal) as No. 23 Abariba Street, Umuahia.

But on the written address of the claimant, the address for service of the Appellant is stated as Bata Junction, Aba – Owerri Road, Aba. Page 9 of the Record of Appeal.

It seems to me that it was wrong for the Court below to have delivered a Ruling, in the face of these inconsistencies in SERVICE.

The law is clear that where any notice or any other processes is required to have an address for Service, it shall not be deemed to have been properly filed unless such address has been endorsed on it. ADEGBOLA & ORS V. IDOWU & ORS (2017) LPELR-42105 (S.C.), IHEDIOHA V NWOSU & ORS (2019) LPELR-52790 (S.C.).
The result is that the trial Court was wrong to have based its ruling on processes that have not been served on parties.
If a party has not been served with a statement of claim so ordered by the Court or as required by the rules of the Court, any proceeding based on it is null and void. That indicates that the Court gave Judgement without jurisdiction.

That is the situation here. The Appeal succeeds and same is allowed. The decision of the Abia State High Court delivered on the 17th day of May 2017, in SUIT NO. HU/ MISC/43/2016 is set aside.

This matter shall be remitted to the Chief Judge of Abia State to be tried by another Judge.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA.

Service of process on the Defendant so as to enable him appear to defend the relief being sought against him is one of the conditions precedent for the Court to be competent to assume jurisdiction, I hold.
See Compact Manifold & Energy Services Ltd v Pazan Services Nigeria LTD (2020) 1 NWLR Part 1704 page 70 at 91 Para B – D Per Galumje JSC; Achuzia v Ogbomah (2016) 11 NWLR Part 1522 Page 59 at 72 para E – G Per Okoro JSC.

There being no proof of service on the Appellant, the Court, I hold was in error to have based its Ruling on processes that have not been served on the parties.

This appeal accordingly succeeds.

I abide by the consequential orders made by my learned brother.

IBRAHIM WAKILI JAURO, J.C.A.: The judgment just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice) was availed to me before now. I quite agree with his Lordship that want of Service vitiates the entire trial no matter how well conducted. See Azuki Padawa & 8 Ors. V. Agmada Jatau (2003) FWLR Pt. 164 pg. 232 Ratio 13. It is in consequence of this too that I also find merit in the appeal and is allowed by me. I abide by the orders made by his Lordship in the lead judgment.

Appearances:

Tochukwu Maduka, SAN For Appellant(s)

Onyekachi Matthew For Respondent(s)