AKWA IBOM STATE WATER CORPORATION & ANOR v. UNYIME JOSEPH NNAN (2019)

AKWA IBOM STATE WATER CORPORATION & ANOR v. UNYIME JOSEPH NNAN

(2019)LCN/13011(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of April, 2019

CA/C/64/2016

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. AKWA IBOM STATE WATER CORP.
2. MR. A. D. IDOPISE
(AREA MANAGER, AKWA IBOM STATE WATER CORP., IKOT ABASI) Appellant(s)

AND

UNYIME JOSEPH NNAN
(Substituted by Order of Court on the 31st of October, 2016) Respondent(s)

RATIO

DISTINCTION BETWEEN SUBSTANTIVE JURISDICTION AND PROCEDURAL JURISDICTION

The Supreme Court again pronounced on the distinction between substantive jurisdiction and procedural jurisdiction in the case of HERITAGE BANK LTD. V BENTWORTH FIN. (NIG.) LTD. [2018] 9 NWLR [PT. 1625] 420 @ 434. The facts of the HERITAGE BANK LTD. case [supra], particularly in relation to the distinction between substantive and procedural jurisdiction are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but a firm of Legal Practitioners, the appellant, as the defendant, condoned the defective process. They joined issues and participated in the proceedings until judgment was delivered. In these circumstances, Eko, JSC, who read the lead judgment of the Supreme Court explained that jurisdictional defect that renders the adjudication incompetent ultra null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication. MADUKOLU V NKEMDILIM [1962] 2 SCMLR 341. That when want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court below allows it to adjudicate on the matter. That is why it is extrinsic. That when, however the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process having not being issued or filed in accordance with the prescribed practice, the issue raised is whether he process can be countenanced and not whether the Court can ordinarily and competently assume jurisdiction, and adjudicate in the matter in the first place. Still on page 434, the learned Supreme Court Justice continued:
In most cases, procedural jurisdiction is secondary to the substantive jurisdiction, the distinction between the two lies in the fact when procedural jurisdiction can be waived, substantive jurisdiction cannot be waived ….
See also A-G, KWARA STATE & ANOR V. ALHAJI SAKA ADEYEMO & ORS. [2016] 7 SC [PT. 11] P. 149 [2017] 1 NWLR [PT. 1546] 210 @ 239 ? 240; ARIORI V ELEMO [1983] 1 SC 13 [1983] 1 SCNLR 1.
In the instant case, the cases of UDOEBOI V UDOUSUA [2017] 5 NWLR [PT. 1559] 501 @ 503; KEYSTONE BANK LTD. V J.O.A. & S (NIG.) LTD. [2015] 1 NWLR [PT. 1439] 98 and all such other cases relied on by the learned counsel for the Appellants to conclude that the effect of the unsigned Amended Writ of Summons is jurisdictional are distinguishable and not applicable to the facts and circumstances of this case. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Denis E. Okon of the High Court of Akwa Ibom State, Ikot Abasi Judicial Division delivered on 27th day of February, 2012. The deceased plaintiff Joseph Udo Nnan who was substituted on appeal by the Respondent Unyime Joseph Nnah issued a writ of summons against the Appellants as Defendants on 7-12-2001.

The Respondent as plaintiff later amended his writ of summons on 2-6-2004. The suit was eventually contested on the basis of the Respondent?s plaintiff?s Further Amended Statement of Claim of 3-11-2006 and the Appellants Defendants Statement of Defence of 8-1-2003. Paragraph 15 of the Respondent?s Further Amended Statement of Claim claims against the Appellants Defendants jointly and severally as follows:
WHEREFORE the plaintiff claims against the Defendants jointly and severally as follows:
a) N3,865,800.00 (Three million, Eight Hundred & Sixty-five Thousand, Eight Hundred Naira) as special damages.
b) N30,000,000.00 (Thirty Milion naira) as general

damages.
c) A perpetual injunction restraining the Defendants, either by themselves, of agents, servants, workmen, privies of any person(s) howsoever in that behalf from further entry and continuing any manner of act of trespass thereat or purporting to do or doing any manner of work in the said land.
PARTICUARS OF SPECIAL DAMAGES
Cost of resurveying the land N 120,000.00
1500 ?9? inch blocks at N120 each 180,000.00
2000 ?5? inch blocks at N100 each 200,000.00
30 trips of fine sand at N7,000 per trip 210,000.00
30 trips of gravel at N23,000 per trip 690,000.00
20 trips of laterite at N5, 000 each

100,000.00
20 trips of stone (hard core) at N30,000 per load 600,000.00
Cost of moulding 155 bags of cement at N300
per bag 46,500.00
Cost of water for moulding blocks (20 tankers @ N1,000 per tanker 20,000.00
612 pieces of 12mm mild steel at N1000 each. 612,000.00
104 pieces 10mm rod at N800 each 83,200.00
123 pieces of 16mm rod at N1,500 each 174,500.00
104 pieces of 8mm rods (mild) steel @ N600 each.

62,400.00
4 rolls of binding wire @ N550.00 per roll                    2,200.00
100 mature plantain suckers at N1000 per stand        100,000.00
3 stands of mature kolanut trees at N25,000 each          75,000.00
10 stands of raffia palm trees (mature) at N1000 each. 100,000.00
One (1) plum tree (mature) 40,000.00
1 stand of pear tree (mature) 35,000.00
20 pineapple suckers at N250 per sucker                    5,000.00
Vegetables (assorted)

10,000.00
Cost of workmanship 400,000.00
Total 3,865,800.00
General Damages 30,000,000.00

The case suffered several adjournments before and after the commencement of hearing. Hearing eventually commenced on 13-7-2010 when the Respondent opened his case and PW1 adopted his statement on oath. Hearing continued in the case on 20/10/2010 when PW2 similarly adopted his statement on oath. The case was thereafter adjourned to 15/11/2010 for cross examination. For a long time thereafter the court did not sit and the Asst. Chief Registrar of Court continued to sign for administrative adjournments still for cross-examination for 25/1/2011 and 21/4/2011.
?
On 18/5/2011, one Dasil Akpan appeared for

the Respondent as Plaintiff but there was no counsel for the Appellants defendants. The learned trial Judge, Denis E. Okon, J. noted that ?It appears the defendant has abandoned defence to this suit. Case adjourned to 9th June, 2011 for address.?

Again for a long time thereafter the Court did not sit and the Asst. Chief Registrar continued to sign for administrative adjournments still for address on 9/6/2011, 6/7/2011, 9/9/2011, and 14/12/2011 when he adjourned the case to 20/2/2012. On 20/2/2012 Dasil Akpan, Esq., appeared for the Respondent Plaintiff but neither the Defendants nor their counsel was present in Court. The Respondent adopted their written address and the learned trial Judge adjourned for judgment to 27/2/2012.

On 27/2/2012, the learned trial Judge held for trespass in favour of the Respondent and awarded special and general damages against the Appellants Defendants.

Dissatisfied with this judgment, the Appellants at first filed a Notice of Appeal on 16/12/2015. Later, by an Amended Notice of Appeal of 5/4/2016 deemed filed on 31/5/2017, the Appellants filed two grounds of appeal in this Court.

The relevant briefs of argument are as follows:
1. Appellants? brief of Argument dated 31/3/2016 and filed on 5/4/2016. It is settled by Aniefiok Utuk, Esq.
2. Respondent?s brief of Argument dated 24/1/2018 and filed on 15/2/2018 but deemed filed on 14/1/2019. It is settled by Unyime D. Itat, Esq.
3. Appellants Reply brief of Argument dated 10/4/2018 and filed on 17/4/2018 but deemed filed on 14/1/2019.
Learned counsel for the Appellants nominated two issues for determination. They are:
1. The learned trial Judge erred in law when he assumed jurisdiction over the case and proceeded to enter judgment against the Defendants/Appellants when the Plaintiff/Respondent?s Amended Writ of Summons was not signed by the counsel to the Plaintiff/Respondents.
2. The learned trial Judge erred in law when he entered judgment for the plaintiff respondent without giving the defendants/appellants adequate opportunity to cross-examine the plaintiff/respondent and/or present their defence at the hearing thereby violating the Appellants right to fair hearing.

Learned counsel for the Respondent slightly modified the Appellants issues and submitted the same two issues for determination thus:
1. Whether the Amended Writ of Summons filed by the Respondent on the 2nd day of June was competent and effective to the just determination of the suit at the lower Court?
2. Whether, in determining the case, the learned trial judge violated the Appellant?s right to fair hearing.

On issue One, learned counsel for the Appellant submitted that the failure of the counsel to the Respondent to sign the Amended Writ of Summons renders the Amended Writ of Summons incompetent and liable to be struck out. He submitted that this is so because in law where a counsel fails to sign an originating process as in the instant case, Amended Writ of Summons, then the said Amended Writ of Summons becomes dead, inchoate, incompetent and liable to be struck out. On this, he referred to the cases ofBUHARI V ADEBAYO [2014] 10 NWLR [PT. 1416] 560 and KEYSTONE BANK LTD. V J.O.A. & S (NIG) LTD. [2015] 1 NWLR (PT. 1439) 98.

Based on the above authorities, Appellants counsel urged us to hold that the failure of the Respondent to sign the Amended Writ

of Summons is fatal and resolve issue one in favour of the Appellants by holding that the lower Court lacked the requisite jurisdiction to proceed to hear the Respondent?s suit.

Learned counsel for the Respondent on the other hand referred to pages 52 ? 53 of the Record and submitted that the Amended Writ of Summons has shown that it was endorsed thus:
This writ was issued by C. A. Ukpong, Esq., of Akpan Obioyat Chambers whose address for service is 87, Oron Road, Uyo, Legal Practitioner for the said Plaintiff who resides at Ikot Abasi Local Government Area [service on the city, town or district and also the name of the street number of the house of the Plaintiff?s residence, if any].

Respondent?s counsel submitted that the above endorsement of the name of the Respondent?s counsel C. A. Ukpong, Esq., and his address as Akpan Obioyat Chambers, 87 Oron Road, Uyo ? Legal Practitioner for the said Plaintiff now Respondent was sufficient to render the amended writ of summons valid and competent. He referred to the cases of S.L.B CONSORTIUM LTD. N.N.P.C. [2011] 9 NWLR [PT.1252] 317 @ 331, 332 and WILLIAMS V

ADOLD/STAMM INTERNATIONAL (NIG.) LTD. [2017] 6 NWLR [PT. 1560] 1 @ 19 ? 20 and added that the Appellants do not deny the fact that the Respondent?s counsel had his name C. A. Ukpong, Esq. on the Amended writ of summons.

Learned counsel to the Respondent again referred to the case of S.L.B. CONSORTIUM LTD. V NNPC [2011] 9 NWLR [PT. 1252] 317 @ 331 ? 332 to say that the term ?signature? is defined to mean a person?s name or mark written by that person or at that person?s direction, or any name, mark or writing used in the intention of authenticating a document. And, that if the term ?signature? means a person?s name, etc, C. A. Ukpong, Esq., as appeared on the Amended Writ of Summons was sufficient signature. Respondent?s counsel contends further that the said Amended Writ of Summons was filed and issued on the 2nd day of June, 2004 under the Akwa Ibom State High Court [Civil Procedure] Rules 1989. That the Rules in its Order 5, Rule 12(1) provided as follows:
Where a plaintiff sues by a Legal Practitioner, the Writ shall be endorsed with the plaintiff?s address

and the Legal Practitioner?s name or firm and a business address of his within the jurisdiction and also if the Legal Practitioner is the agent of another, the name or firm and business address of his principal.

He submitted that the Akwa Ibom State High Court (Civil Procedure) Rules 1989 used the word ?endorsed? and that the Legal Practitioner who sued on behalf of the Plaintiff has the option to endorse the writ with either his name or practitioner firm?s name to meet the requirement of the provision of Order 5 Rule 12(1) of the Akwa Ibom State High Court (Civil Procedure) Rules 1989.

On this, Respondent?s counsel referred to the case of DAVID V JOLAYEMI [2011] 11 NWLR (PT. 1258) P. 320 @ 356 where Agube, JCA interpreted the provisions of Order 5 Rule 12(1) of the Kwara State High Court (Civil Procedure) Rules 1989 which is in pari materia Order 5 Rule 12(1) of the Akwa Ibom State High Court (Civil Procedure) Rules 1989. In fact, said counsel Order 5 Rules 1(1), (2) 2(1) and (2) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 has clearly provided that non-compliance with the rules at any

stage in the course of or in connection with any proceeding, that there has been, by reason of anything done or left undone or been a failure to comply with the requirements of time, place, manner or firm, that such failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. That any application to set aside for irregularity and step taken in the cause of the proceedings has to be taken timeously and not on appeal as in this case where judgment had been delivered at the lower Court.

On this, counsel referred to the case ofSNEADE V WATHERTON [1904] 1 KB 295 @ 297. On another wicket, learned counsel for the Respondent submitted that an amended process such as an Amended Writ of Summons is not a new process. That the amendment presupposes that there is a valid writ of summons which speaks from the date of the original process and by the principle of ?relating back?. It related back to the date of the original process. He referred to the cases ofEZEUKO V STATE [2016] CWLR (Consolidated Weekly Law Reports) [PT. 2] 319 @ 371 and 372; ROTIMI V MACGREGOR [1974] 11 SC 133 @ 152;

SNEADE V WATHERTON [1904] 1 KB 295 @ 297 and ADEWUMI V A-G, EKITI STATE [2002] 93 LRCN 43 @ 64 and 65.

It is therefore wrong, according to Respondent?s counsel for the Appellants to contend that the case at the lower Court was done or heard on an un-initiated or unsigned writ of summons. Furthermore, said counsel in the cases cited and relied upon by Appellants in relation thereto there was no original process to relate back the Amended Writ of Summons. However, that in the instant case, the amendment of the writ of summons presupposes that there was a valid writ of summons. He further referred to the case of EZEUKO V STATE [supra] @ pp. 371 ? 372 and also to the cases of DUNALIN INVESTMENT LTD. V BGL PLC [2016] 18 NWLR [PT. 1544] 262 @ 263; OGUMA A.C. (NIG) LTD. V I.B.W.A [1988] 1 NWLR [PT. 73] 658; EZINWA V AGU [2004] 3 NWLR [PT. 861] 431; OBASAN V ABUDU [2006] LPELR [9809] and UNITY BANK PLC. V BOUARI [2008] 7 NWLR [PT. 1086] 372.

In his reply brief, learned counsel for the Appellants submitted that a document is properly signed when apart from writing of name of counsel in live ink there must be a contraption of any

sort or mark belonging to the said legal practitioner. That in the Amended Writ of Summons in the instant case there is no contraption by counsel or name of counsel written by counsel himself and therefore the unsigned Amended Writ of Summons is nevertheless incompetent. He submitted that the initial writ of summons had ceased to exist in the eye of the law as the effect of an amendment is that what stood before the Court is over taken and replaced by the amended process.
He referred to the cases ofJATAU V AHMED [2003] FWLR [PT. 151] PAGE 1887; ENIGBOKAN V A.I.I.CO. (NIG.) LTD. (I994) 6 NWLR [PT. 348] 1 @ 5; NIMASA V MUTUAL BENEFIT ASSURANCE; LPELR [2018] CA/L/84/2011. Appellants counsel urged us to strike out the amended writ and allow the appeal.

A good starting point for Appellants issue One is the case of KEYSTONE BANK LTD. V J.O.A. & S (NIG.) LTD. [2015] 1 NWLR [PT. 1439] 98 @ 110 and 111. In that case, Adumein, JCA speaking for the Court of Appeal held that depending on the con in which the words ?endorsement? and ?signature? are used, there may in some circumstances be

synonymous. This he says is because ?endorsement? means ?an act or instance of endorsing something? and it also means ?signature or written comment ?.. especially a signature written on the back of a document to make it payable, approve it, or comment on it? ?Endorsement? also means ?official approval of or permission for something?. See Encarta World English Dictionary, page 620. Also, that in law, the word ?Signature? means ?A person?s name or mark written by that person or the person?s direction? or ?Any name, mark or writing used with the intention of authenticating a document? To ?sign? means ?To identify by means of a signature, mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. See Black?s Law Dictionary Deluxe Ninth Edition, Page 1507.
In the KEYSTONE BANK LTD. V J.O.A & S (NIG) LTD. [supra] @ page 111, the Court of Appeal went on to say that it is for the above reason that signature is meant to authenticate a document that an

unsigned document has no efficacy or value in law, as nobody assumes responsibility for it. See OMEGA BANK (NIG) PLC V O.B.C. LTD. [2005] 1 SCNJ 150 [2005] 8 NWLR [PT. 928] 547.
In the instant case, there is no gainsaying that there is no contraption, mark or authentication by C. A. Ukpong either as endorsement or signature to tie C. A. Ukpong, Esq., to the responsibility of issuing the Amended Writ of Summons contained on pages 52 ? 53 of the Record of Appeal.
Clearly therefore, the Amended Writ of Summons contained on pages 52 ? 53 of the Record of Appeal is invalid and constitutes an irregular process. The next question in relation to Appellants Issue One is whether the irregularity in the filing of the said Amended Writ of Summons goes to the jurisdiction of the Court as to render the proceedings conducted in the Court below in the case on appeal a nullity. The simple answer to the above enquiry is in the negative. This is because the valid writ of summons of the Respondent filed on 7/12/2001 sufficiently ignited the jurisdiction of the Court below to hear the case on appeal. And the ?fire of

ignition? cannot be obstructed by an irregularly filed Amended Writ of Summons.
Put in another way, when there is a valid writ of summons as in the instant case, a defective and/or irregular Amended Writ of Summons cannot go to the jurisdiction of the Court to try the case.
Indeed, one might say that the valid writ of summons satisfies the requirement of substantive jurisdiction while the defective Amended Writ of Summons only relates to procedural jurisdiction which can and indeed in this case has been cured by the participation of the parties in the proceedings and having not been timeously raised until appeal could not affect the conduct and conclusion of the proceedings.
The Supreme Court again pronounced on the distinction between substantive jurisdiction and procedural jurisdiction in the case of HERITAGE BANK LTD. V BENTWORTH FIN. (NIG.) LTD. [2018] 9 NWLR [PT. 1625] 420 @ 434. The facts of the HERITAGE BANK LTD. case [supra], particularly in relation to the distinction between substantive and procedural jurisdiction are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified

Legal Practitioner, but a firm of Legal Practitioners, the appellant, as the defendant, condoned the defective process. They joined issues and participated in the proceedings until judgment was delivered. In these circumstances, Eko, JSC, who read the lead judgment of the Supreme Court explained that jurisdictional defect that renders the adjudication incompetent ultra null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication. MADUKOLU V NKEMDILIM [1962] 2 SCMLR 341. That when want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court below allows it to adjudicate on the matter. That is why it is extrinsic. That when, however the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process having not being issued or filed in accordance with the prescribed practice, the issue raised is whether he process can be countenanced and not whether the Court can ordinarily and competently assume jurisdiction, and adjudicate in the matter in the first place.

Still on page 434, the learned Supreme Court Justice continued:
In most cases, procedural jurisdiction is secondary to the substantive jurisdiction, the distinction between the two lies in the fact when procedural jurisdiction can be waived, substantive jurisdiction cannot be waived ….
See also A-G, KWARA STATE & ANOR V. ALHAJI SAKA ADEYEMO & ORS. [2016] 7 SC [PT. 11] P. 149 [2017] 1 NWLR [PT. 1546] 210 @ 239 ? 240; ARIORI V ELEMO [1983] 1 SC 13 [1983] 1 SCNLR 1.
In the instant case, the cases of UDOEBOI V UDOUSUA [2017] 5 NWLR [PT. 1559] 501 @ 503; KEYSTONE BANK LTD. V J.O.A. & S (NIG.) LTD. [2015] 1 NWLR [PT. 1439] 98 and all such other cases relied on by the learned counsel for the Appellants to conclude that the effect of the unsigned Amended Writ of Summons is jurisdictional are distinguishable and not applicable to the facts and circumstances of this case. This is because the cases so cited and relied upon by the learned counsel for the Appellants concern defective or invalid writ of summons as originating processes and the defects thereon go to jurisdiction and are quite different from the instant case where the unsigned document is

not an originating process. For these reasons and in spite of the irregularity in the Respondent?s Amended Writ of Summons, the decision of the Court below cannot be faulted on lack of jurisdiction. Issue One is resolved against the Appellants.

On issue two, learned counsel for the Appellants submitted that the failure of the learned trial judge to order that Hearing Notice be issued and served on the Appellants when the Appellants were not in Court more especially on 13/7/2010, 20/10/2010 and 15/11/2010 respectively coupled with the fact that the Court did not sit from the 26th day of January to the 18th day of May 2011 before the adoption of the Respondent?s Written Address amounts to a violation of the Appellants right to fair hearing. Also, that it is evident from the Record of the lower Court at pages 142 ? 145 that the trial Judge never ordered that Hearing Notices be served on the Appellants and never for once adjourned the matter for their defence.
?
He submitted that the remark of the learned trial Judge at page 143 of the Record that the Appellants had abandoned their defence to the suit on the 18th day of

May 2011 was in error. This, counsel said is because there was no single day from the Records that the matter was adjourned for defence.

On these, Appellants counsel referred to the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 [as amended] and further relied on the cases ofINTERNATIONAL BANK PLC V ONWUKA [2009] 8 NWLR [PT. 1144] 462 @ 465 ? 467 and WIMPEY V BALOGUN [1986] 3 NWLR [PT. 28] 324 @ 326 wherein the Court held inter alia that where there is any doubt as to whether or not service was or was not properly effected, any judgment obtained by a party in the absence of the other in such circumstance ought to be set aside and a new trial conducted to afford both parties opportunity to present their case.

Learned counsel for the Respondent detailed the events in the Court below from the commencement of the suit on 7/12/2001 until delivery of judgment. For greater relevance, one can take the Respondent?s submissions from the events that took place from 13/7/2010 which is a reference point for the complaint of the Appellants. Respondent?s counsel submitted that the

Respondent and his counsel Dasil Akpan, Esq., were in Court on 13/7/2010 when the Appellants and their counsel were absent. The Court allowed the Respondent to open his case. The Respondent commenced his evidence-in-chief and the matter was thereafter adjourned to 11/8/2010 for continuation of hearing.

That on the 11th day of August, 2010 both parties and their counsel were in Court. The case was not called but with the consent of the counsel of both parties, the matter was adjourned to the 20th day of October 2010 for continuation of hearing. On 20th day of October 2010 the Respondent and his counsel, Dasil Akpan, Esq. were in Court while the Appellants and their counsel were absent. The Court below allowed the Respondent to continue his examination in chief after which the matter was adjourned to 15th day of November, 2010 for the cross examination of the Respondent?s witness.

Respondent?s counsel continued that on the 15th day of November, 2010 when the matter came up for cross examination of the Respondent?s witness, the Respondent was in Court, but the Appellants were absent. The case was

thereafter adjourned to the 25th day of January, 2011. That on the 25th day of January, 2011 both parties were in Court but the Court did not sit. The case was thereafter adjourned to the 21st day of April, 2011 for the cross-examination of the Respondent?s witness. The Court did not sit on the 21st day of April, 2011 though parties were in Court and the matter was adjourned to the 18th day of May, 2011 still for the cross examination of the Respondent?s witness.

On the 18th day of May, 2011, the Respondent and his counsel, Dasil Akpan, Esq., were in Court and neither the Appellants nor their counsel was in Court. The trial Judge noted that it appeared that the Appellants had abandoned their case and thereafter adjourned the matter for address to the 9th day of June, 2011.

From 9th June, 2011 to 25 day of February, 2012, the Court did not sit but adjournments were granted on 9th June, 2011 to 6th day of July 2011 to 9th day of August 2011 to 14th day of December, 2011 to 25th day of January 2012 and to 20th day of February, 2012. All for adoption of addresses.
?
On the 20th day of February, 2012, the Respondent

and his counsel, Dasil Akpan, Esq., were in Court while the Appellants and their counsel were absent. The Court permitted the counsel for the Respondent to adopt his written address and thereafter adjourned the case to 27/2/2017 for judgment.

On these facts, learned counsel for the Respondent submitted that the service of hearing notice is obviated as the suit was previously set down for continuation of hearing in open Court to the hearing and notice of the parties. He submitted that it is the law that where a suit had been previously set down for hearing in open Court on a date specified to the parties service of hearing notice is obviated.

For the above proposition, Respondent?s counsel referred to the decision of the Court of Appeal in MANKANU V SALMAN [2005] 4 NWLR [PT. 915] 270 @ 303 where it was held that:
The service of hearing notice is obviated only where a suit has been previously set down for hearing in open Court on dates specified to parties.

Learned counsel for the Respondent also referred to the case ofNIRCHANDANI V PINHEIRO [2001] FWLR [PT. 48] 1307 where it was held that a hearing notice should not be

issued or served on parties or their counsel who already know or are reasonably expected to know of the date when the matter is to come up for consideration. It will amount to over indulgence for Courts to go out of their way to issue or serve hearing notice on parties or their counsel who were in Court or aware of the next adjourned dates as it amounts to unwittingly promoting indulgence. Furthermore, Respondent?s counsel referred us to the case of SO MAI SONKA CO. NIG. LTD. V ADZEGE [2001] FWLR [PT. 68] 1104 where the Jos Division of the Court of Appeal held that service of hearing notice is very necessary where the party is not present in Court or duly represented. It may not become necessary where the party for whose benefit the service will be effected is present in Court when the matter is adjourned to another date to his hearing/understanding. This is irrespective of whether he appeared in person or through an accredited representative.

He submitted that the Appellants were afforded an ample opportunity to defend the case at the lower Court, but that they neglected and abandoned the opportunity. He referred

to the cases of REGISTERED TRUSTEES, P.C.N. V ETIM [2017] 13 NWLR [PT. 1581] 1 @ 47 and 48; DAMA V ECOBANK (NIG.) LTD. [2017] 9 NWLR [PT. 1571] 480 @ 512; OMO VS. J.S.C. DELTA STATE [2000] 12 NWLR [PT. 682] 444; OYEDEJI V AKINYELE [2000] 3 NWLR [PT. 755] p. 586; CHIDOKA V FIRST CITY FINANCE CO. LTD. [2001] 2 NWLR [PT. 697] 216; ARDO V I.N.E.C. [2017] 13 NWLR [PT. 1583] 450 @ 492 and NEWSWATCH COMMUNICATIONS LTD. VS. ATTA [2006] 12 NWLR [PT. 993] 144 @ 177 and submitted that the law is that, a party who has been given opportunity to be heard, but fails to avail himself, cannot complain of breach of the right of fair hearing.

In his Reply brief, learned counsel for the Appellants submitted on issue two that the failure of the Court below to adjourn the matter from 18th day of May, 2011 to any other date to enable the Appellants to present their defence whatsoever or howsoever and other hearing notice to be served on the Appellants intimating them of such new date for their defence. The said failure made the Court below not to hear the Appellants before adjourning the matter to 9th June, 2011 for adoption of addresses and eventually entering judgment for the Respondent.

He referred to the cases of NDUKAUBA VS. CHIEF KOLOMO [2005] 4 NWLR [PT. 915] 411 @ 437 ? 438; S.B.N. PLC. VS. CROWN STAR & CO. LTD. [2003] 6 NWLR [PT. 815] 6; NAL MERCHANT BANK PLC. VS. WALEX ENTERPRISES LTD. & ANOR [2005] ALL FWLR [PT. 255] 1064 @ 1083 ? 1084; CHIEF UGWU & ORS. VS. CHIEF ALAEBO & ORS. [2006] ALL FWLR [PT. 309] 1474 @ 1481; UNIVERSITY OF LAGOS & ORS. VS. DR. AMATOKWU [2005] ALL FWLR [PT. 277] 929 @ 942; ORUGBO & ANOR VS. UNA & ORS. [2002] FWLR [PT. 127] 1024 @ 1036; ALSTHOM S.A & ANOR. VS. CHIEF (DR.) SARAKI & ORS. [2005] ALL FWLR [PT. 246] 1385 @ 1404 and submitted that the lower Court breached the principles of fair hearing by failure to serve hearing notices and that the judgment ought to be set aside.

In deciding Appellant?s issue two, it would be observed that none of the cases cited by the learned counsel for the Respondent applies to the facts and circumstances of the instant case. First, it is not the case as it was in the case of MANKANU V SALMAN [supra] ?that the suit has been previously set down for hearing in open Court

on dates specified to parties?. Second, it is equally not the case as it was in the case ofNIRCHANDANI VS. PINHEIRO [supra] that for all the adjourned dates ?the parties or their counsel knew or are reasonably expected to know of the date when the matter is to come up for consideration?. And thirdly, it is not the case as it was in the case of SO MAI SONKA CO. NIG. LTD. VS. ADZEGE [supra] that on all the adjourned dates ?the party whose benefit the service will be effected was present in Court when the matter is adjourned to another date to his hearing/understanding.”

Curiously enough, a careful perusal of the Records in this case indicates that there was no single date where hearing notices were issued on the Appellants. The picture of the events that took place would be appreciated as I reproduce the events as recorded from 13th July, 2010 to 20th February, 2012 when the case was adjourned for judgment on pages 139 ? 145 of the Record of Appeal:
RESUMED AT IKOT ABASI
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THIS TUESDAY THE 13TH DAY OF JULY, 2010
Plaintiff in Court. Defendant not in Court.
Dasil Akpan, Esq. for Plaintiffs,
No Counsel for Defendant and no letters.
Plaintiff opens his case: PW1 Sworn on Bible states in English. I am Chief Anthony Uke. I live at No. 4 Edem Ayan Close, Ikot Abasi Urban in Ikot Abasi Local Government Area. I am a building Contractor and also a farmer. I know the plaintiff in this case. I also know the two defendants.
I remember filing a written statement in this Court on 22nd April, 2010. The statement shown to me here is the written I filed in this Court on 22nd April 2010. I wish to adopt that statement as my evidence in this case. Case adjourned to 11th August, 2010 for continuation.
SGD:
Denis E. Okon
Judge
13/7/2010
?RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 11TH DAY OF AUGUST, 2010.
Parties are in Court. Case not called. Counsel are in Court and adjourned the matter to 20th October, 2010 for continuation.
Signed: O. D. Umotong
Asst. Chief Registrar II.
RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 20TH DAY OF OCTOBER, 2010.
Plaintiff in Court. Defendant absent.
Dasil Akpan, Esq., for plaintiff; No counsel for defendant in Court.
HEARING CONTINUES:
PW1 sworn Bible states in English: I am Joseph Udo Nnan a native of Minya Ntak, Mkpat Enin Local Government Area. I live at Ette in Ikot Abasi Local Government Area. I am a farmer. I know the defendant in this case. I filed a further amendment of the Supreme Court on 3rd November, 2006 as well as my written statement on oath 22nd April, 2010. I wish to adopt the written statement as my evidence in this case. In

that purchase receipt dated 28th February, 78 as well as the site plan attached to the receipt.
Upon application, the Receipt of payment, the Survey Site Plan are herein admitted. Site Plan admitted as Exhibit A. Agreement document as Evidence of Receipt of money. Admitted as Exhibit B.
I also said that I had an approved Building Plan for the land- Approved Building Plan is herein admitted as Exhibit C.
I told that I had already obtained judgment in respect of this land and there is a record of proceedings in respect of that judgment Suit No. HAB/17/81 is admitted as Exhibit D.
I have a receipt of the estimate the resurvey of the property. This receipt is admitted as Exhibit E. This is all for the witness.
Case adjourned to 15th November, 2010 for cross examination.
SGD:
Denis E. Okon
Judge
20/10/2010
RESUMED AT IKOT ABASI
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THIS MONDAY THE 15TH DAY OF NOVEMBER, 2010.
Plaintiff/applicant

is in Court. Defendant absent. Court has sat but case has not called.
Dasil Akpan, Esq., for plaintiff is in Court and suggests a date.
By counsel, case is adjourned to 26th January, 2010.
Signed: O. D. Umotong
Asst. Chief Registrar II
RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 25TH DAY OF JANUARY, 2011.
Parties are in Court. Court not sitting. Therefore case is adjourned to 21st April, 2011 for cross examination.
Signed: E. E. Akpan
Asst. Chief Registrar 1
RESUMED AT IKOT ABASI
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THIS THURSDAY THE 21ST DAY OF APRIL, 2011.
Parties are in Court. Court not sitting. Case adjourned to 18th May, 2011 for cross examination.
Signed: E. E. Akpan

Asst. Chief Registrar 1
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THIS WEDNESDAY THE 18TH DAY OF MAY, 2011.
Plaintiff/Applicant in Court. Defendant/Respondents absent. Dasil Akpan for plaintiff. No counsel either for defendant.
It appears the defendant has abandoned defence to this suit. Case adjourned to 9th June, 2011 for address.
SGD:
Denis E. Okon
Judge
18/5/2011
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THIS THURSDAY THE 9TH DAY OF JUNE, 2011.
Parties are present. Court not sitting. By consent of counsel, case is adjourned to 6th July, 2011 for address.
Signed: E. E. Akpan
Asst. Chief Registrar 1.
RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 6TH DAY OF JULY, 2011
Parties are in Court. Court not sitting. Case is adjourned to 9th August, 2011 for address.
Signed: E. E. Akpan
Asst. Chief Registrar 1
RESUMED AT IKOT ABASI
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THIS TUESDAY THE 9TH DAY OF AUGUST, 2011
Parties are in Court. Court not sitting. Case is adjourned by both counsel to 14th December, 2011 for address.
Signed: E. E. Akpan
Asst. Chief Registrar 1
RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 14TH DAY OF DECEMBER, 2011
Parties are in Court. Court not sitting. Case is adjourned to 25th January, 2012 for address.

Signed: E. E. Akpan
Asst. Chief Registrar 1
RESUMED AT IKOT ABASI
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THIS WEDNESDAY THE 14TH DAY OF DECEMBER, 2011
Parties are in Court. Court not sitting. Case is adjourned to 25th January, 2012 for address.
Signed: E. E. Akpan
Asst. Chief Registrar 1.
Parties are in Court. Court not sitting. Case is adjourned to 20th February, 2012.
Signed: E. E. Akpan
Asst. Chief Registrar 1
RESUMED AT IKOT ABASI
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THIS MONDAY THE 20TH DAY OF FEBRUARY, 2012
Only Plaintiff/Applicant is in Court. Defendant/Respondent absent. Dasil Akpan, Esq. for plaintiff. Counsel to defendant not in court and no letters.
ADOPTION OF PLAINTIFF ADDRESS
?On 9th June, 2011, the plaintiff filed their address and I

have the proof of service before the Court. We now adopt our written address. We urge the Court to enter judgment for the defendant.
Case adjourned to 27th February, 2012 for judgment.

A perusal of the above records would show that the Appellants would have been served hearing notices in the minimum on 13/7/2010, 20/10/2010, 15/11/2010, 18/5/2011 and 20/2/2012 to satisfy the requirements of audi alteram partem and the doctrine of fair hearing in relation to the Appellants case.
In the recent case of THE NIGERIA UNION OF TEACHERS TARABA STATE & ORS. VS. REV. SARDUANA HABU & ORS. SUIT NO. SC/106/2005 [LPELR] 2018 SC. 106/2005 of Friday February 23, 2018 in a lead judgment delivered by Ejembi Eko, JSC and supported by Chima Centus Nweze, Kudirat Kekere Ekun, Musa Dattijo, and Olu Ariwoola, JJSC re-echoed the need to serve hearing notices on parties not present at the proceedings, failure of which would lead to a constitutional breach of fair hearing.
In his supporting judgment at pages 12 ? 13 of the Report, Chima Centus Nweze, JSC notably remarked as follows:
As demonstrably shown in the leading judgment,

the first and sixth appellants [as respondents] were not notified of the hearing of the appeal on November 25, 2004. The lower Court, in my view, erred in this regard. The law has been settled that where service of processes is not effected on a party who is supposed to be served before an appeal is heard, such proceedings would have been afflicted with a fundamental vice and this Court is entitled, ex debito justitiae, to have the proceedings set aside,EKE VS. OGBONDA [2007] ALL FWLR [PT. 351] 1452, 1456.
The learned jurist continued:
This must be so for the entire proceedings would have been vitiated. It would be immaterial that they were well conducted. HABIB NIG. BANK LTD. VS. OPOMULERO & ORS. [2000] 15 NWLR [PT. 690] 315; SKEN CONSULT NIG. LTD. V. UKEY [1981] 1 SC 6; MBADINUJU & ORS. V. EZUKA & ORS.[1994] 10 SCNJ 109 [1994] 8 NWLR [PT. 384] 535; FOLORUNSHO V. SHALOUB [1994] 3 NWLR [PT. 330] 413.

He concluded:
This prescription is premised on the radical nature of the right enshrined both in the common law principle of audi alteram partem, OMABUWA V. OWHOFATSHO [2006] 5 NWLR [PT. 972] 40, 67;

TUBONEMI V DIKIBO [2006] 5 NWLR [PT. 974] 565, 587 ? 588; A-G, RIVERS STATE V. UDE [2006] 17 NWLR [PT. 1008] 436; BAMGBOYE V UNILORIN [1999] 10 NWLR [PT. 622] 290; DEDUWA V. OKORODUDU [1976] 9-10 SC 329 and SECTION 36(1) of the Constitution of the Federal Republic of Nigeria [as amended]; UKPO V IMOKE [2009] 1 NWLR [PT. 1121] 90, 171; SALU V. EGEIBON [1994] 6 NWLR [PT. 384] 32; CEEKAY TRADERS LTD. V GMC. LTD. [1992] 2 NWLR [PT. 222] 132.
Indeed, service of hearing notice is a pre-condition to the exercise of jurisdiction of Court. Non-service of hearing notice on the Appellants on the 13/7/2010, 20/10/2010, 15/11/2010, 18/5/2011 and 20/2/2012 robs the lower Court of jurisdiction to hear and determine the matter and any order made thereby against the Appellants who should have been served with the hearing notice becomes null and void. See OTOBAIMERE V AKPOREHE [2004] 14 NWLR [PT. 894] 591; F.B.N. PLC V. TSA IND. LTD. [2015] 11 NWLR [PT. 1470] 346;GUDA V KITTA [1999] 12 NWLR [PT. 629] 21; WEMA BANK NIG. LTD. V. ODULAJA [2000] FWLR [PT. 17] 138 @ 142 ? 143; OBIMONURE V. ERINOSHO [1966] 1 ANLR 250; A.C.B. PLC V. LOSADA NIG. & ANOR. [1995] 7 SCNJ 158 @ 167.

For the above reasons, the Appellants’ issue two is resolved in favour of the Appellants.

In conclusion, even though issue one was resolved against the Appellants, issue two which in the circumstances is the determinant issue, is resolved in favour of the Appellants.
The Appeal is meritorious and it succeeds.

The Judgment and Orders of Hon. Justice Denis E. Okon of the High Court of Akwa Ibom State, Ikot Abasi Judicial Division delivered on 27/2/2012 in Suit No. HAB/47/2001 is accordingly set aside. Suit No. HAB/47/2001 is hereby remitted to the Hon. the Chief Judge of Akwa Ibom State for assignment to another Judge for hearing de novo.
There shall be no order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read in draft the erudite leading judgement delivered by my learned brother: MOJEED ADEKUNLE OWOADE, J.C.A. I concur, in toto, with the reasoning and conclusion in it. I too allow the appeal in the terms set out in the leading judgment. I abide by the consequential orders decreed in it

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, J.C.A and I agree with the reasoning and resolution of the issues nominated for determination in the appeal.

My brother in an exhaustive and incisive manner resolved the two issues nominated for resolution. I have nothing more to add. I also allow the appeal and abide by the orders made therein.

Appearances:

Aniefiok Utuk, Esq.For Appellant(s)

Unyime D. Itat, Esq.For Respondent(s)

Appearances

Aniefiok Utuk, Esq.For Appellant

AND

Unyime D. Itat, Esq.For Respondent