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ANAMEKWE & ORS v. MINAH (2020)

ANAMEKWE & ORS v. MINAH

(2020)LCN/14361(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/PH/497/2018

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Between

1. MR. ALOYSIUS A. ANAMEKWE 2. MR. CYRIACUS O. ANAMEKWE 3. MR. EUGENE UZOR APPELANT(S)

And

MRS. PATIENCE M. MINAH RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE ALLOWED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION FROM A GROUND OOF APPEAL

It ought to be pointed out, that a party is not allowed under the rules of Courts to formulate more than one issue for determination from a ground of appeal, although he can combine two or more grounds in formulating an issue. This is essentially the doctrine against proliferation of issues. See YADIS (NIG) LTD VS. GREAT NIG. INSURANCE COY. LTD. (2007) LPELR – 3507 (SC) per Onnoghen, JSC (as the learned Lord then was) @ 30 – 31 paragraphs F – A; MFA VS. INONGHA (2014) LPELR – 22010 (SC). 26 paragraphs D-E; UGO VS OBIEKWE (1989) 1 NWLR (Pt. 99) 566. In the case of OMEGA BANK (NIG) PLC VS. OBC LTD (2005) 8 NWLR (Pt. 928) 547, the apex Court was reported to have admonished counsel against the prohibitive on practice of proliferation of issues thus:
This Court has on several occasions condemned the proliferation of issues in Brief of Argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal. See IWUOHA VS. NIPOST LTD (2003) 8 NWLR (PARTY 822) 308.
Again, most recently in the case of NDUUL VS. WAYO (2018) LPELR – 45151 (SC), the Supreme Court had a cause to seriously lament over the preposterous practice of proliferation of issues, thus:
Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided. Per Kekere-Ekun, JSC @ 19 paragraphs B – F. PER SAULAWA, J.C.A.

WHETHER OR NOT SERVICE OF AN ORIGINATING PROCESS ON A PARTY IS FUNDAMENTAL AND GOES TO THE JURISDICTIONAL COMPETENCE OF THE COURT

Instructively, the law is well settled, that the service of an originating process on a party is fundamental and goes very deeply to the root of the jurisdictional competence of the Court in the matter. Thus, any failure to effect service of the originating processes and upon the party renders the entire proceedings of the Court and orders based thereupon nullities. See SENATOR ALI VS SENATOR ALBISHIR (2007) LPELR 8319 (CA) per Kekere-Ekun, JCA (as the learned Lord then was) @ 49 -50 paragraphs F – B; MARK VS EKE (2004) 1 SCNJ 245, ODUTOLA VS. KAYODE (1994) 4 SCNJ I, LEEDO PRESIDENTIAL MOTOR LTD VS. BON LTD (1998) 10 N.W.L.R (Pt. 570) 353 @ 381 paragraph B; SKENCONSULT LTD VS UKEY (1981). 1 SC 6 @ 27. PER SAULAWA, J.C.A.

WHETHER OR NOT THE CONDUCT OF PROCEEDINGS BY THE COURTS OF RECORDS MUST BE PREDICATED UPON TRITE DOCTRINE OF DUE PROCESS OF LAW

It ought to be reiterated at this crucial point and stage, that the conduct of proceedings by the Courts of Records in this country must at all-time be predicated upon the well cherished trite doctrine of due process of law. By the due process of law; I mean exactly the same as the British parliament cherishingly posited when it first employed the phrase seven centuries ago, in 1354 thus:
That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death without being brought in answer by due process of law.
See THE STATUTE OF 28 EDW. III. CH.3, 1354; LORD DENNING: THE DUE PROCESS OF LAW (supra) @ V.
​Thus, by the provisions of British parliament Act 1354 (Supra), no person, of whatever station or status, shall arbitrarily be deprived of life, property, or liberty, without recourse to the due process of law.
It was aptly postulated by the Legendary Lord Denning the Master of Rolls:
(By) due process of law; I mean the measures authorized by the law so as to keep the streams of Justice pure: to see that trials and inquiries are fairly conducted; that arrests and searches are properly made; that lawful remedies are readily available; and that unnecessary delays eliminated. It is in these matters that the common law has shown its undoubted genius.
See LORD DENNING: THE DISCIPLINE OF LAW: OXFORD UNIVERSITY PRESS: 1980 (FIRST PRINT); 2012 (SECOND PRINT) @ V. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a natural fall-out of the interlocutory ruling of the Rivers State High Court delivered on October 13, 2017 in suit No: PHC/1436/2015. By the Ruling in question, the Court below Coram S. H. Aprioku J, dismissed the Appellant’s notice of preliminary objection, thereby seeking to strike out the Respondent’s suit on the ground of lack of service of Court processes upon the Appellants.

BACKGROUND
FACTS
It is gleanable from the records of appeal, the genesis of the instant appeal dates back to October 28, 2015. That was the day the Respondent instituted the suit in question in the Court below against the Appellant herein. By the 9 paragraphed statement thereof, filed along with the writ of summons, the Respondent sought against the Appellants various declaratory and injunctive reliefs:
​(a) A declaration that the Sales Agreement dated 30/03/1989 made between the Rivers State Housing and Property Development Authority, Port Harcourt an authorized agency of the Rivers State Government and the claimant for the sale of the property

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situated at No: 5 Afam Street, Mile 1 Diobu, Port Harcourt is valid and lawful transfer of title in the property by the Rivers State Government to the claimant therefore enforceable in law.
(b) A declaration that the defendants’ continued interferences of the claimant’s quiet enjoyment of the said property and premises in spite of the defendants’ failed previous attempts to claim title to or interest in the said property through Suits No: PHC/286/89, PHC/1013/2003, PHC/306M/99 and Appeal No: CA/PH/153/2002 respectively struck out eventually by the Courts amount to continued trespass to the said property and/or to continuance of damage or injury to the claimant.
(c) An order directing the defendants to render forthwith to the claimant all rents or payments howsoever collected from the occupants of the said property from 30/03/1989 (the date of the claimant’s purchase of the said property to date of delivery of vacant possession.
(d) An order directing the defendants and other occupants of the said property to vacate the property and premises accordingly.
(e) A perpetual injunction restraining the defendants either by

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themselves or by their agents, tenants or privies from committing further trespass to or from further unlawful occupation of the said property and premises.
(f) General damages of N1,000,000.00 (One Million Five Naira).

In the course of the pendency of the suit, the Respondent filed a Motion on Notice on 22/04/2016, thereby praying the Court below for the following reliefs:
(a) That judgment be entered for the Claimant/Applicant in terms of her statement of claim in default of pleadings by Defendant/Respondent.
And
(b) For any other order or orders as the Honourable Court may deem fit to make in the circumstances.

However, on 20/07/2016, the Appellants’ learned counsel E. I. Mabadejo, Esq of Green Marbs & Co., filed in the Court below a Motion on Notice (dated 19/07/2016), thereby seeking the following reliefs:
(1) An order for Extension of Time within which to file and serve on the Defendants or their counsel the Claimant’s/Respondent’s Counter Affidavit in opposition to the Notice of Preliminary Objection filed by the counsel to the Defendants/Applicants on the 8th of June, 2016.

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(2) A further order to deem the Claimant’s/Respondent’s Counter Affidavit in opposition to the Notice of Preliminary Objection annexed herein and marked Exhibit “A”, as properly filed and served necessary fees having been accessed and paid.
(3) Any other order or orders this Honourable Court may deem fit to make in the circumstances.

The said motion was predicated upon a 4 paragraphed affidavit deposed thereto by one Dorcas D. Angaye, the Secretary in the Law Chambers of Green, Marbs & Co., of Appellants’ counsel.

A 6 paragraphed Further Affidavit was filed by the Appellants equally deposed on 20/07/2016 by Dorcas D. Anyaye C. On the said 13/120/2017, the Court below delivered the vexed interlocutory ruling to the conclusive effect:
In this case, the Defendants on becoming aware of this case retained the services of a counsel who infact filed this preliminary objection. It will be straining the rule of proof of service to say that the Defendants, who appeared through counsel after the Bailiff effected service, Endorsed on the Writ and Affidavit of proof of service, will turn round to claim that they were not served… In

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this case, the appearance is sufficient proof Defendants have been served. The Hearing has not commenced as at the time they entered Conditional Appearance therefore, in my considered view the Defendants have not suffered any injustice as their right to fair hearing was never claimed and they have the opportunity to file a Defence and other accompanying processes to defend the suit. The application lacks merit and it is accordingly dismissed. Cost is assessed at N50,000.00 against the Defendant.

The notice of appeal, dated 10/12/2018, is predicated upon a total of 7 grounds. The appeal was duly entered on 10/12/2018.

On 16/03/2020, when the appeal came up for hearing, the Appellants’ learned counsel addressed the Court and adopted the brief of argument thereof thus, resulting in reserving judgment. It is evident on the Record, that the Respondent was served with the Appellants’ brief of argument on 20-12-2018. By the rules of this Court, the Respondent had 30 days from that date within which to file the brief thereof.
Under Order 19 Rule 4 of the Court of Appeal Rules, 2016, the Respondent was required to, within 30 days of the service

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of the Appellants’ brief of Argument thereupon, file the Respondent’s brief. Thus, the Respondent having failed to file the brief thereof, he is not entitled to any oral argument or further adjournment of the appeal without any reasonable or just cause. As authoritatively held by the Supreme Court in the case of OGBU VS THE STATE (2007) ALL FWLR (PT. 361) 1651:
The failure of the Respondent to file a respondents’ brief is of no consequence and it is immaterial. An appellant must succeed or fail in his own brief or case. Although the filing of a respondents brief is not automatic, failure to so file may amount to the respondent being deemed to have admitted the truth of everything stated in the appellants brief in so far as such is borne out by the record of proceedings.
Per Ogbuagu, JSC @ 1675 Paragraphs C – F; (2007) LPELR- SC. 55/2003; (2007) 5 NWLR (PT.1028) 635; (2007) 3 SC (PT. 11) 273; COP VS OMANUKWUE(1999) 2 NWLR (PT. 590) 190 CA; WAZIRI VS WAZIRI (1998) 1 NWLR (PT.533) 322 CA; UBA PLC VS. AJILEYE (1999) 13 NWLR (PT.633) 116.
​Regrettably, the Respondent has failed to comply with the requirement of the law, for reasons

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best known thereto. Thus, the only option left to the Court was to allow the Appellants’€ learned Counsel to proceed to argue the appeal, the absence of the Respondent notwithstanding.

The Appellants’ brief of argument was filed timeously on 20/12/2018 by S.C. Amaefule, Esq. It spans a total of 14 pages. At page 3 of the said brief, two issues have been couched:
3.01 Whether there was convincing and irrefutable evidence before the Honourable Court on the service of originating processes on the appellants to warrant the Court dismissing the preliminary objection of the appellants without calling for oral evidence in the face of the obvious conflicts between the affidavit of service and the counter affidavit sworn to by the 1st appellants alongside other processes challenging the affidavit of service? (Arising from grounds 1, 2, 3, 4, 5, 6 and 7).
3.02 Whether there is a conclusive proof before the Court that the appellants were personally served with the originating processes at the Lower Court (Arising from grounds 1, 2, 3, 4, 5, 6 & 7 of the Notice of Appeal).

The issue No: 1 is extensively argued at pages 3 – 4 of the said

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brief. In a nutshell, it is submitted to the effect that in the Affidavit of service exclusively relied upon by the Court below, the bailiff did not state who served as a pointer to him when he allegedly served the originating processes on all the Appellants. Worse still, the endorsement columns for the Appellants were not endorsed by any of them. The bailiff merely stated, “the defendant received but did not endorse.” See page 40 of the Records of Appeal. Order 9 Rule 8 High Court Civil Procedure Rules.

Reference was made to page 71 and 72 of the record in regard to the two suits variously filed in 2012 and 2013. Further submitted that the 2nd Appellant allegedly resides in the state of Texas and could not have been personally served with any Court process on 21/01/2016 as alleged by the bailiff. See page 68 of the Record.

It is argued, the where the depositions in the affidavits of contesting parties are in conflict, the Court should hear oral evidence. See CHIEF F. OTOOLA ATANDA VS. MOSUDI OLANREWAJU (1988) 10 – 11 SC 1 at 14, et al.

Further argued, that the affidavit of service exclusively relied on by the Court below is

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not beyond scrutiny of the Court, even where there is no counter affidavit. Seer OKOYE VS. CPMB, LTD (2008) 15 NWLR (Pt. 1110) at 362 paragraph B – C.

According to the learned counsel, the affidavit in question is vague, uncertain and wears a hallmark of improbability, thus the Court has a duty not to ignore the issues raised in the counter affidavit. See MOKWE VS EZEUKWO (2001) FWLR (Pt. 38) 1289 CA.

It is conclusively submitted on the first issue, that the counter affidavit alongside other processes challenging the bailiff’s affidavit of service, should have warranted the calling of oral evidence by the Court below for proper resolution of the conflicts of material facts. The Court is urged to resolve the said issue in favour of the Appellants.

The issue No: 2 is argued at pages 9 – 12 of the brief, to the effect that the service of an originating process is a condition precedent to the exercise of jurisdiction by a Court of law over such a party. See MADUKOLU VS. NKEMDILIM (1962) 2 NSCNL 34; SEA TRUCK (NIG) LTD VS. ANIGBORO (2001) 2 NWLR (Pt. 696) 159.

Further submitted, that by virtue of the provisions of

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Order 6 Rules 2 & 3, 7 Rules 2, 5, 9, 10, 12 & 13 of the Rivers States High Court (Civil Procedure) Rules, 2010, the Respondent has the burden to prove that the originating processes were personally served on the Appellants, since the latter have clearly challenged the affidavit of service. See OKOYE VS CPMB Ltd (2008) 15 NWLR (Pt. 1110) 362 at 357 paragraphs A – C.

It was argued, that the non-service of a writ of summons is neither a mere defect in procedure nor a want of form but rather, it is an irregularity. It is that is intrinsic to jurisdiction of Court. It is beyond technical justice. It goes to doing of substantial justice. See OKOYE VS. CPMB Ltd (supra) at 360 paragraphs B – C.

The Court is urged to so hold, that the Respondent has failed to discharge the legal burden of proof of service on the Appellants, and ought not to benefit from the wrong thereof.

Conclusively, the Court is urged upon to grant all the Appellants’ reliefs, and accordingly set aside the vexed rulings of the Court below.

PRELIMINARY OBSERVATION
I have accorded a critical albeit dispassionate consideration upon the nature and

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circumstances surrounding the instant appeal, the submission of the Appellants’ learned counsel vis a vis the records of appeal, as a whole. Before proceeding to determine the appeal, I have deemed it imperative to observe that the two issues canvassed by the Appellants’ learned counsel have both been distilled from the grounds 1, 2, 3, 4, 5, 6 and 7 of the notice of appeal. Regrettably, what the Appellants’ counsel has done in the instant case has amounted to what is jurisprudentially known as proliferation of issues, which is prohibitive.
It ought to be pointed out, that a party is not allowed under the rules of Courts to formulate more than one issue for determination from a ground of appeal, although he can combine two or more grounds in formulating an issue. This is essentially the doctrine against proliferation of issues. See YADIS (NIG) LTD VS. GREAT NIG. INSURANCE COY. LTD. (2007) LPELR – 3507 (SC) per Onnoghen, JSC (as the learned Lord then was) @ 30 – 31 paragraphs F – A; MFA VS. INONGHA (2014) LPELR – 22010 (SC). 26 paragraphs D-E; UGO VS OBIEKWE (1989) 1 NWLR (Pt. 99) 566.

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In the case of OMEGA BANK (NIG) PLC VS. OBC LTD (2005) 8 NWLR (Pt. 928) 547, the apex Court was reported to have admonished counsel against the prohibitive on practice of proliferation of issues thus:
This Court has on several occasions condemned the proliferation of issues in Brief of Argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal. See IWUOHA VS. NIPOST LTD (2003) 8 NWLR (PARTY 822) 308.
Again, most recently in the case of NDUUL VS. WAYO (2018) LPELR – 45151 (SC), the Supreme Court had a cause to seriously lament over the preposterous practice of proliferation of issues, thus:
Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided.
Per Kekere-Ekun, JSC @ 19 paragraphs B – F.
​In the circumstances, I have deemed it

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appropriate to adopt the issue No. 1 of the Appellants for the determination of the appeal. Thus, the issue No. 2 ought to be deemed incompetent and it’s hereby accordingly discountenanced.

DETERMINATION OF THE APPEAL ON THE MERITS
The Appellants’ surviving issue (ISSUE NO. 1) raises the very vexed question of whether or not there was any convincing and irrefutable evidence before the Court below on the service of originating processes upon the Appellants to warrant the dismissing of their preliminary objection, without calling for oral evidence in the face of the conflicting affidavit of service and the 1st Appellants’ counter affidavit challenging same. The sole issue is distilled from grounds 1, 2, 3, 4, 5, 6 and 7 of the notice of appeal.
Instructively, the law is well settled, that the service of an originating process on a party is fundamental and goes very deeply to the root of the jurisdictional competence of the Court in the matter. Thus, any failure to effect service of the originating processes and upon the party renders the entire proceedings of the Court and orders based thereupon nullities.

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See SENATOR ALI VS SENATOR ALBISHIR (2007) LPELR 8319 (CA) per Kekere-Ekun, JCA (as the learned Lord then was) @ 49 -50 paragraphs F – B; MARK VS EKE (2004) 1 SCNJ 245, ODUTOLA VS. KAYODE (1994) 4 SCNJ I, LEEDO PRESIDENTIAL MOTOR LTD VS. BON LTD (1998) 10 N.W.L.R (Pt. 570) 353 @ 381 paragraph B; SKENCONSULT LTD VS UKEY (1981). 1 SC 6 @ 27.
I think it was Lord Greene, Master of Rolls, who over seven decades ago, aptly reiterated the fundamental objective of service of Court processes, thus:
The question therefore which we have to decided is whether the admitted to serve on the defendant the summons on which the order of January 18, 1940 was based was a mere irregularity of whether it gives the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation part from proper ex-parte proceedings the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been

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made in those circumstances is to be treated as irregularity and not as something which is affected by a fundamental vice. The affidavit of service in the present case was on the face of it insufficient, and no order should have been completed on the strength of it.
See CRAIG VS. KANSEEN (1943) KB 256 @ 262 – 263 (1943) 1 All ER 108, Per Lord Greene M. R. @ 113.
The apt decision of the England’s Court of Appeal in CRAIG VS KANSEEN (supra) was applied by the Supreme Court in quite a number of formidable authorities. Most particularly, in the notorious case of SKENCONSULT LTD VS. UKEY (1981) 1 SC 6, the apex Court aptly held:
The service of process on the defendant so as to enable him appeal to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very will accords with the principles of natural justices.
In the instant case, it is crystally obvious that, the only (purported) proof of service was the affidavit of service contained at pages 39 and 40 of the Records.

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Most particularly, at page 40 of the Records, the bailiff of the Court, recorded thus:
Name: …
Signature: …
Date: …
Time: …
Address: …
Remarks: The defendant received but did not endorse
Fineface NDU 21 – 01 – 2016 Principal Bailiff.
The 1st Appellant filed an 8 paragraphed counter affidavit, thereby vehemently challenging the Bailiffs Affidavit of Service (Form 27) to the following effect:
4. The contents of the said affidavit of service are untrue and incorrect and in truth I state as follows:
a. I am not resident at No: 5 Afam Street, on the contrary I was resident at Plot 191 Agip Road, 91 Federal Housing Estate, Mile 4, Port Harcourt as at 21st January, 2016.
b. The 2nd defendant is resident in the State of Texas of the United States of America and has been so resident since 2007.
c. The 3rd Defendant who is resident at No: 5 Afam Street, was still in his home town in Imo State as at the 21st of January, 2016 and as a result could not have been personally served with the originating process on the 21st of January, 2016.
5. The 2nd defendant who is also my brother is

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resident in Texas in United States of America and has been so resident since 2007.
6. The 3rd defendant told me on the 1st of June, 2016 at about 4pm in his shop at Nanka Street, Mile 1 Diobu, Port Harcourt and I verily believe him that he was still in his home town in Imo State as at 21st January, 2016.
7. I do not know Mr. Fineface Ndu and I never set my eyes on him before.
It is crystally evident on the face of “Form 27 Affidavit of Service” (pages 39 – 40 of the Record), that none of the Defendants (Appellants) had endorsed (signed) that document. The bailiff did not state the person served as a pointer to him at the material time he effected the service on the Appellants.
Curiously, the bailiff stated at page 40 of the Record to the effect that:-
“The defendant received but did not endorse.”
​As aptly posited by the Appellants’ learned counsel, the pertinent question that ought to be asked was whether the three defendants (Appellants) actually received the originating process in question? In my opinion, against the background of the conflicting depositions inherent in the respective

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parties’ affidavits and counter affidavits the Court below had a duty to order for an oral hearing with a view to determining the veracity or otherwise of the alleged service of the originating process upon the Appellants. See ATANDA VS OLANREWAJU (1988) 10 – 11 SC 1 @ 14; FBN PLC VS MAY MEDICAL CLINICS & DIAGNOSTICS CENTRE (2001) 4 SC (Pt)108@ 115, to the effect that where as in the instant case, affidavits are crucially diametrically at variance, the Court is devoid of a discretion to pick and choose, or believe, one and reject the other. In such a situation, the only option left to the Court is to order for viva voce evidence. However, the only exception to the rule is where it’s obvious that the conflicts in the affidavits of the respective parties are not material to the substance of the matter before the Court.
I have had a cause to hereinabove refer to the decision of the Court of Appeal of England in CRAIG VS KANSSEN (supra), where in it was aptly held:
In my opinion, it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of over conception of the

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proper procedure in litigation. Apart from proper ex-parte, proceedings, the idea that an order can validly be made against a place that has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity and not vice, is an argument which, in my opinion, cannot be sustained.
Per Lord Greene, Master of Rolls, @ 113.
In the case of SKENCONSULT VS UKEY (1981) LPELR – 3072 (SC), the Supreme Court whole heartedly adopted and applied the doctrine so eloquently enunciated by Lord Green, M. R. in CRAIG VS. KANSSEN (supra) to the effect, thus:
“It is fair to say that, that had always been the conception of the Nigerian Courts on the issue of proper procedure.”
Per Nnamani JSC @ 22 – 23 paragraphs D – G.
The erudite and immutable dictum of Lord Denning, Master of Rolls, in the locus classicus, MACFOY VS. UAC LTD (1962) A – C – 152 readily comes to mind, viz:
If all act is void then it is all land a nullity. It is not only bad but incurably bad. There is no need for an Order of the Court to

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set it aside. It is automatically null and void without much ado, though it is to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
Per Lord Denning, master of Rolls @ 160.
In the circumstances, the sole issue ought to be, and it is hereby resolved in favour of the Appellants.
It ought to be reiterated at this crucial point and stage, that the conduct of proceedings by the Courts of Records in this country must at all-time be predicated upon the well cherished trite doctrine of due process of law. By the due process of law; I mean exactly the same as the British parliament cherishingly posited when it first employed the phrase seven centuries ago, in 1354 thus:
That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death without being brought in answer by due process of law.
See THE STATUTE OF 28 EDW. III. CH.3, 1354; LORD DENNING: THE DUE PROCESS OF LAW (supra) @ V.
​Thus, by the provisions of British parliament Act 1354

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(Supra), no person, of whatever station or status, shall arbitrarily be deprived of life, property, or liberty, without recourse to the due process of law.
It was aptly postulated by the Legendary Lord Denning the Master of Rolls:
(By) due process of law; I mean the measures authorized by the law so as to keep the streams of Justice pure: to see that trials and inquiries are fairly conducted; that arrests and searches are properly made; that lawful remedies are readily available; and that unnecessary delays eliminated. It is in these matters that the common law has shown its undoubted genius.
See LORD DENNING: THE DISCIPLINE OF LAW: OXFORD UNIVERSITY PRESS: 1980 (FIRST PRINT); 2012 (SECOND PRINT) @ V.
As far-reachingly postulated hereinabove, the findings and conclusion of the Court below are far from being in accord with the trite doctrine requiring the exercise of discretion judicially and judiciously. Regrettably, the exercise of the trial Court’s purported discretion in dismissing the Appellants preliminary Objection in question has amounted to what could aptly be described as the exercise of a crooked code of discretion. As aptly

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held by the House of Lords (now Supreme Court) of England in the case of PETTITT VS. PETTITT (1970) AC 777:
To use the language of coke, this would be to substitute the uncertain and crooked code of discretion for the golden and straight met-wand of the law.
Per Lord Hodson @ 808.
Interestingly, the foregoing dictum of Lord Hodson eloquently expressed in PETTITT VS. PETTITT (Supra) was an outright reaction to Lord Denning, Master of Rolls’ findings in the case of HINE VS. HINE (1962) 1 NLR 1124, to the following effect:
Its discretion transcends all rights legal or equitable and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as may be fair and just in all the circumstance of the case.
Per Lord Denning, MR.@ 1127.
However, barely 20 years thereafter, the doctrine so eloquently enunciated by Lord Denning, MR in HINE VS. HINE (Supra) was philosophically scotched by the House of Lords in the latter case of PETTITT VS. PETTITT (Supra). As aptly remarked by Lord Denning in his own words:
But alas, the principle did not survive the scrutiny

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of the House of Lords. It took over 20 years before it was finally scotched in PETTITT VS. PETTITT (1970) AC 77. The House there declared that Section 17 was procedural only. It did not affect the legal right of either party. In every case the Courts has to inquire what the legal right of the parties and give effect to them – without exercising any discretion in the matter – Quoting my principle and condemning it Lord Hodson said (at page 808):
To use the language of coke, this would be to substitute the uncertain and crooked code of discretion for the golden and straight “Metwand of the law.”
Hence, having effectively resolved the sole issue in favour of the Appellants, the appeal resultantly succeeds and it is hereby allowed by me.
Consequently, the interlocutory ruling of the Rivers State High Court Coram S. H. APRIOKU, J. delivered on October 13, 2017 in suit No: PHC/1436/2015, is hereby set aside.
There shall be no order in regard to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother IBRAHIM MUHAMMAD MUSA SAULAWA, JCA.

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I am in full agreement with the sound reasoning and conclusion therein.

I also resolve the sole issue in favour of the Appellant and abide by the consequential orders therein.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.

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Appearances:

C. Amaefule, Esq. For Appellant(s)

Respondent served For Respondent(s)