APC v. OZOBO & ORS (2020)

APC v. OZOBO & ORS

(2020)LCN/14894(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/PH/460/2020

RATIO

APPEAL: IMPORTANCE OF A NOTICE OF APPEAL

Order 2 Rule 3, Court of Appeal Rules, 2016 in showing the importance of a Notice of Appeal provides thus:
“Where in any proceeding in the Court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule.”
Order 2 Rule 2 also provides for when the Notice of Appeal should be served thus:
“The registry of the Court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the Notice of Appeal but it shall not be necessary to serve any party not directly affected….” PER IDRIS, J.C.A.
APPEAL: IMPORTANCE OF SERVICE OF A NOTICE OF APPEAL

The importance of service of a Notice of Appeal cannot be undermined as the Supreme Court held in the case of ADEGBOLA VS. OSIYI & ORS (2017) LPELR – 42471 (SC) Pp. 14 – 15, PARAS. E – F per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC wherein His Lordship reiterated as follows:
“…Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the appeal rests. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36(1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the Court. In an appeal, service of the notice of appeal on the respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, seeOrder 2 Rule 3 (1) (b) of the Rules of this Court. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Court’s jurisdiction to adjudicate. I agree with my learned brother, M. D. Muhammad, JSC that there is no legally acceptable evidence in the record before us to show that the 1st respondent was duly served with the Notice of Appeal. The failure has rendered the appeal before this Court incompetent thereby robbing the Court of jurisdiction to entertain it.”
It is clear from the above authority that the failure to serve the Notice of Appeal robs the Court of the jurisdiction to hear the appeal. The Supreme Court also has this to say on the importance of the service of the Notice of Appeal in the case of DR. HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) Pp. 38 – 39, PARAS. A – E per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC wherein the Court reiterated that:
“I agree with the reasoning and conclusion that there was no evidence before the lower Court of service of the Notice of Appeal on the appellant herein, thereby robbing the lower Court of the requisite jurisdiction to entertain the appeal. The law is well settled that service of a process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside. See: S.G.B.N. Ltd Vs. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mark vs Eke (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd Vs UBA Plc (2008) 2 NWLR (Pt. 1071) 347. Failure to effect service of a process on a party where service is required renders the proceedings null and void and of no effect. Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so. See: Odutola vs Kayode (1994) 4 SCNJ 1; Leedo Presidential Hotel Ltd Vs B.O.N. Ltd (1998) 10 NWLR (Pt. 570) 353 @ 381 B; Okoye vs C.P.M.B. Ltd (2008) 15 NWLR (Pt. 1110) 335; Skenconsult Nig. Ltd & Anor vs Ukey (1981) 1 SC 6 @ 26. It is also in keeping with the principle of fair hearing enshrined in Section 36(1) of Constitution, as amended. Order 2 Rule 6 of the Court of Appeal Rules, 2002 provides that service of the Notice of Appeal on the respondent shall be personal.”
The Apex Court in the case HON. BAYO ADEGBOLA VS. HON. GODWIN OSIYI & ORS (SUPRA) had this to say on the service of a Notice of Appeal:
“1st respondent’s preliminary objection draws its strength from its first arm, the fact of the non-service of the notice of appeal on the 1st respondent. I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that non-service of the notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as, being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the notice of appeal is, is a sine qua non for a Court to assume jurisdiction over a case. In S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt. 829) 529 this Court restated its concerns thus:-
“Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set-aside as a nullity.” PER IDRIS, J.C.A.
JURISDICTION: WHAT DETERMINES THE COMPETENCE OF A COURT TO EXERCISE JURISDICTION

The competence of a Court to exercise jurisdiction in relation to an action before it depends on whether the condition precedent to confer jurisdiction has been met. See the cases of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 and 594; ABUBAKAR UMARU ABBA TUKUR VS. THE GOVERNOR OF TARABA STATE & ORS (1997) 6 NWLR (PT. 510) 549; ATTORNEY GENERAL OF THE FEDERATION VS. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT. 618) 187; DR. ARTHUR AGWUNCHA NWANKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PT. 1209) 518. PER IDRIS, J.C.A.
JURISDICTION: WHETHER THE MATTER OF JURISDICTION CAN BE WAIVED

The matter of jurisdiction as in this case at hand is not one that can be waived as it is not at the option of a party to waive same. The Supreme Court in the case of ARCHITECT HUDU IBRAHIM MAMONU & ANOR VS. JOSEPH D. MATO DIKAT & ORS (2019) LPELR – 46560 (SC) Pp. 52 – 53, PARAS. D – B per Mary Ukaego Peter-Odili, JSC, while defining waiver had this to say:
“This Court has defined a waiver in Auto Import Export v Adebayo (2005) LPELR-642(SC) as follows:-
“In the case of Ariori & Ors v Elemo & Ors (supra) referred to in the case of Odu’a Investment Co. Ltd v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC at page 22 of the NSCC Report; defining the word waiver, had this to say:-
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.” (Emphasis Mine) PER IDRIS, J.C.A.

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

HON. PETER OZOBO 2. MOSES HITLER 3. BROWN EBIDE (Representing Themselves And All The Majority Of The APC Members In Bayelsa West Senatorial District Who Were Denied Their Rights To Vote At The APC Senatorial Primary Election Of Bayelsa West Scheduled To Hold On The 3rd Of September, 2020 But Which Did Not Hold) 4. INDEPENDENT ELECTORAL COMMISSION (INEC) 5. RT. HON. PEREMOBOWEI EBEBI 6. HIS EXCELLENCY GOVERNOR BALA MAI MALA BUNI (Chairman All Progressive Congress (APC) National Caretaker Committee) 7. ISHIAKA OYEBOLA 8. KEN NNAMANI 9. STELLA OKERETE 10. HIS EXCELLENCY GOVERNOR SANI BELLO 11. DR JAMES LALU 12. SEN. ABUBAKAR YUSUF 13. HON. AKINYEMI OLAIDE 14. DAVID LYON 15. PROF. TAHIR MAMMAN 16. ISMAIL AHMED 17. SEN. AKPAN UDOEDEHE (7TH – 17TH Respondents As Appointed Members Of APC National Caretaker Committee, Who Supplanted The Elected Members Of The APC National Working Committee As From The 25th June, 2020) RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering The Leading Judgment): By an Originating Summons dated 15th September, 2020 and filed on the same day, the 1st, 2nd and 3rd Respondent as 1st, 2nd and 3rd Plaintiffs at the trial Court, raised the following questions thus:
1. Whether the Bayelsa West senatorial Primary election which allegedly held on 3rd September, 2020 which produced 3rd Defendant as the 2nd Defendant’s Senatorial candidate for the Bayelsa West senatorial election was validly and legally held in view of the provisions of Section 65(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 87(1) (2) & (3) of the Electoral Act, 2010 (as amended) read together with 2nd Defendant (APC) Constitution and Guidelines for primary Election 2018.
2. Whether in view of the provisions of the 2nd Defendant’s (APC) Constitution on membership, the 3rd Defendant is qualified to be nominated as its candidate for the Bayelsa West Senatorial Bye election of 31/10/2020.
3. Whether by virtue of the existing zoning and rotation policy in Bayelsa West Senatorial

District and the Sagbama Ekeremor Federal Constituency the 2nd Defendant (APC) was right in nominating the 3rd Defendant as its senatorial candidate when the incumbent member of the House of Representatives comes from the same Ekeremor Local Government Area with the said 3rd Defendant, contrary to the party resolution affirming the said Zoning and Rotation policy of which the 2nd Defendant took part and in breach of the 2nd Defendant’s Constitution providing for equality and fair play.
4. Whether by the interpretation and application of Section 65(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the 3rd Defendant who is a member of the People’s Democratic Party (PDP) and not yet resigned can be nominated as the senatorial candidate of the 2nd Defendant for the Bayelsa West Senatorial Bye Election of 31/10/2020.
5. If the answers to the questions 1, 2, 3 and 4 are in the negative, whether the 4th to 15th Defendants as constituted can validly conduct primary election and nominate 3rd Defendant in view of the express provisions of Section 183 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)

4th and 9th Defendants being serving state Governors.

In the said originating summons the following reliefs were sought for against the Appellant and the 4th – 17th Respondent as Defendants thus:
1. A declaration that the Bayelsa West Senatorial Primary election which allegedly held on 3rd September, 2020 which produced 3rd Defendant as the 2nd Defendant’s senatorial candidate for the Bayelsa West Senatorial election was not in accordance with the provisions of Section 65(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 87(1), (2) and (3) of the Electoral Act, 2010 (as amended) and as well as the 2nd Defendant’s (APC) Constitution and Guidelines for Primary Election 2018.
2. A declaration that the 3rd Defendant is not qualified to contest or be nominated as the Candidate of the 2nd Defendant for the Bayelsa West Senatorial Bye Election slated for 31/10/2020 or any other date thereabout.
3. A declaration that by virtue of the existing Zoning and rotation policy in Bayelsa West Senatorial District and the Sagbama Ekeremor Federal Constituency, the 2nd Defendant (APC) was

not right in nominating the 3rd Defendant as its senatorial Candidate when the incumbent member of the House of Representatives comes from the same Ekeremor Local Government Area with the said 3rd Defendant, contrary to the 2nd Defendant’s (APC) Constitution providing Zoning, equity and fairness political offices in accordance with zoning and rotation tradition of the Bayelsa West Senatorial District and Sagbama Ekeremor Federal Constituency as affirmed by the all parties resolution confirming the said zoning and rotation policy which the 2nd Defendant (APC) took part.
4. A Declaration that by the interpretation and application of Section 65(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 3rd Defendant who is a member of the People’s Democratic Party (PDP) and not yet resigned cannot be nominated as the senatorial candidate of the 2nd Defendant for the Bayelsa West Senatorial Bye Election scheduled for 31/10/2020 or any other date thereabout.
5. A declaration that the 4th to 15th Defendants as constituted cannot validly conduct primary election and nominate the 3rd Defendant in view of the

express provisions of Section 183 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the 4th and 9th Defendants being serving State Governors.
6. An Order setting aside the purported nomination of the 3rd Defendant as the 2nd Defendant’s Senatorial Candidate for the Bayelsa West Senatorial Bye election slated for the 31/10/2020 or any other date thereabout.
7. An Order directing the 1st Defendant to remove the name of the 2nd Defendant from the list of the candidates for the senatorial bye election of the Bayelsa West Senatorial Election slated for the 31/10/2010 or any other date thereabout.
8. And for such other order or orders as this Honourable Court may deem fit to make in the circumstance of this case.

In support of the originating summons is a 35-paragraph affidavit deposed to by the 1st Respondent and containing the whole facts involved.

On the other hand, the Appellant and the 4th – 17th Respondents filed a counter affidavit to the Originating Summons. There was also filed a Notice of Preliminary Objection by the 4th – 17th Respondents challenging the jurisdiction of the trial Court to

hear the matter. The parties adopted their respective processes on the 26th October, 2020.

Upon the determination of the Preliminary Objection, the trial Court held that it had jurisdiction and proceeded to give judgment in the matter.

The learned trial judge, Honourable Justice J. E. Inyang delivered judgment in the Suit No. FHC/YNG/CS/60/2020 on the 3rd of November, 2020 wherein the trial Court upheld part of the 1st, 2nd and 3rd Respondents’ case and made consequential orders.

Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal on the 16th November, 2020 comprising of Four (4) grounds of appeal. It is also important to note that the 1st – 3rd Respondents filed a Notice of Cross Appeal dated 16th November, 2020 and filed on the same date. Parties to the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellant’s brief of argument as settled by his counsel Emmanuel Emelike Nwonye Esq. and dated 25th November, 2020 and filed 26th November, 2020, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Court below was right

to have assumed jurisdiction to hear and determine Suit No: FHC/YNG/CS/60/2020. (Distilled from Ground 1 of the Notice of Appeal dated and filed 16th November, 2020).
2. Whether the Court below was right to have held that the 1st – 3rd Respondents have been able to prove that the Appellant did not conduct primary election in the nomination of the 5th Respondent contrary to the provision of S.87 (1), (2) and (3) of the Electoral Act 2010 as Amended. (Distilled from Grounds 2 and 4 of the Notice of Appeal dated and filed 16th November, 2020).

The 1st – 3rd Respondents’ Counsel filed a Notice of Preliminary Objection on the 30th November, 2020 challenging the competence of the appeal on the following grounds:
1. The Notice of Appeal in this appeal was not served on the 1st to 3rd Respondents before the record of appeal.
2. The 1st to 3rd Respondents were not invited and did not participate in the settlement of record for compilation of Record of Appeal.
3. The Notice of Appeal was not served on the 1st to 3rd Respondents before the Appellants’ Brief was filed and served on the 1st to 3rd

Respondents.
4. The appeal is incompetent.
5. The Honourable Court lacks jurisdiction to entertain the appeal.

For want of time, the summary of arguments of the parties in their respective Briefs of Argument shall be introduced in the determination of the issues as would be required during my consideration of the issues and the arguments made by the parties herein.

Before I go ahead, it is important that I first consider the preliminary objection raised by the 1st – 3rd Respondents.

The 1st – 3rd Respondents in arguing the Notice of Preliminary Objection before this Court, adopted the argument made in support of the Preliminary Objection to the appeal filed in Appeal No: CA/PH/444/2020, CA/PH/445/2020, CA/PH/453/2020, CA/PH/454/2020 and CA/PH/323/2020, wherein it was argued that the Respondents were not served the Notice of Appeal.

From the argument of Counsel in Court on the 3rd December, 2020, the Appellant’s Counsel submitted that the Respondents were served with the Notice of Appeal. The Respondents’ Counsel on the other hand argued that there was no proof of service of the said Notice of Appeal attached to

the Appellant’s counter affidavit neither was there any affidavit of service to show that same was served.

The Appellant’s Counsel also argued that the 1st – 3rd Respondents had taken steps in the appeal already before the Notice of Preliminary Objection was filed as they filed a Notice of Cross-Appeal, Counter Affidavit to the Appellant’s application for stay of execution and that they were also served with the Record of Appeal which contains the Notice of Appeal.

The Appellant’s Counsel further argued that the law is settled on the use of affidavit to show proof of service but where the applicants have taken steps as in this case there is no need for affidavit of service.

The Respondents’ Counsel also argued that the step taken by the 1st – 3rd Respondents by filing a Cross-Appeal is not relevant in this case as a Cross Appeal is an independent appeal.

RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTION FILED BY THE 1ST – 3RD RESPONDENTS
In determining the Preliminary Objection by the 1st – 3rd Respondents in this appeal, this Court has raised one issue for determination thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether or not the 1st – 3rd Respondents were served with the Notice of Appeal as required by the Rules of this Court and the consequence of non-service of the Notice of Appeal to this appeal.

service of a Notice of Appeal cannot be undermined as the Supreme Court held in the case of ADEGBOLA VS. OSIYI & ORS (2017) LPELR – 42471 (SC) Pp. 14 – 15, PARAS. E – F per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC wherein His Lordship reiterated as follows:
“…Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the appeal rests. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36(1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the Court. In an appeal, service of the notice of appeal on the respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, seeOrder 2 Rule 3 (1) (b) of the Rules of this Court. Failure to serve an

originating process on a party to the proceedings is a fundamental defect which goes to the root of the Court’s jurisdiction to adjudicate. I agree with my learned brother, M. D. Muhammad, JSC that there is no legally acceptable evidence in the record before us to show that the 1st respondent was duly served with the Notice of Appeal. The failure has rendered the appeal before this Court incompetent thereby robbing the Court of jurisdiction to entertain it.”
It is clear from the above authority that the failure to serve the Notice of Appeal robs the Court of the jurisdiction to hear the appeal. The Supreme Court also has this to say on the importance of the service of the Notice of Appeal in the case of DR. HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) Pp. 38 – 39, PARAS. A – E per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC wherein the Court reiterated that:
“I agree with the reasoning and conclusion that there was no evidence before the lower Court of service of the Notice of Appeal on the appellant herein, thereby robbing the lower Court of the requisite jurisdiction to entertain the appeal. The law is well settled that

service of a process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside. See: S.G.B.N. Ltd Vs. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mark vs Eke (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd Vs UBA Plc (2008) 2 NWLR (Pt. 1071) 347. Failure to effect service of a process on a party where service is required renders the proceedings null and void and of no effect. Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so. See: Odutola vs Kayode (1994) 4 SCNJ 1;

Leedo Presidential Hotel Ltd Vs B.O.N. Ltd (1998) 10 NWLR (Pt. 570) 353 @ 381 B; Okoye vs C.P.M.B. Ltd (2008) 15 NWLR (Pt. 1110) 335; Skenconsult Nig. Ltd & Anor vs Ukey (1981) 1 SC 6 @ 26. It is also in keeping with the principle of fair hearing enshrined in Section 36(1) of Constitution, as amended. Order 2 Rule 6 of the Court of Appeal Rules, 2002 provides that service of the Notice of Appeal on the respondent shall be personal.”
The Apex Court in the case HON. BAYO ADEGBOLA VS. HON. GODWIN OSIYI & ORS (SUPRA) had this to say on the service of a Notice of Appeal:
“1st respondent’s preliminary objection draws its strength from its first arm, the fact of the non-service of the notice of appeal on the 1st respondent. I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that non-service of the notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as, being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the

notice of appeal is, is a sine qua non for a Court to assume jurisdiction over a case. In S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt. 829) 529 this Court restated its concerns thus:-
“Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set-aside as a nullity.”
In the case at hand, learned counsel to the 1st respondent would, therefore, be right to insist that this Court lacks the jurisdiction to hear and determine this appeal if indeed the notice of appeal is established not to have been served on the 1st respondent: Obimonure v. Erinosho (1966) 1 ALL NLR 250 at 252, Tukur V. Government of Gongola State (1988) 1 NWLR (Pt. 68) 339 and Josiah Cornelius Ltd td & Ors v. Chief Cornelius Okeke Ezenwa (1996) 4 NWLR (Pt. 443) 391.” (Emphasis Mine)
The above recent authority of the Supreme Court is

succinct on the point that the failure to serve the Notice of Appeal is not a mere irregularity.
The competence of a Court to exercise jurisdiction in relation to an action before it depends on whether the condition precedent to confer jurisdiction has been met. See the cases of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 and 594; ABUBAKAR UMARU ABBA TUKUR VS. THE GOVERNOR OF TARABA STATE & ORS (1997) 6 NWLR (PT. 510) 549; ATTORNEY GENERAL OF THE FEDERATION VS. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT. 618) 187; DR. ARTHUR AGWUNCHA NWANKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PT. 1209) 518.
CAN THE JURISDICTION OF THE COURT AS IN THIS CASE BE WAIVED CONSIDERING WHAT A WAIVER ENTAILS?
The matter of jurisdiction as in this case at hand is not one that can be waived as it is not at the option of a party to waive same. The Supreme Court in the case of ARCHITECT HUDU IBRAHIM MAMONU & ANOR VS. JOSEPH D. MATO DIKAT & ORS (2019) LPELR – 46560 (SC) Pp. 52 – 53, PARAS. D – B per Mary Ukaego Peter-Odili, JSC, while defining waiver had this to say:
“This Court has

defined a waiver in Auto Import Export v Adebayo (2005) LPELR-642(SC) as follows:-
“In the case of Ariori & Ors v Elemo & Ors (supra) referred to in the case of Odu’a Investment Co. Ltd v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC at page 22 of the NSCC Report; defining the word waiver, had this to say:-
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.” (Emphasis Mine)
What this means is that the 1st – 3rd Respondents cannot be said to have waived their rights because they filed processes or took any step in the appeal as the issue of jurisdiction just like in this case is not a right peculiar to any party but a constitutional condition precedent that must be fulfilled.
Also, in the case of ABIOLA & SONS BOTTLING COMPANY NIGERIA LIMITED & ANOR VS. FIRST CITY MERCHANT BANK LIMITED & ORS (2013) LPELR – 20387 (SC) P. 32, PARAS. B – E per Clara Bata Ogunbiyi,

JSC, the Supreme Court had this to say:
“I wish to state that where an appeal raises an issue of jurisdiction it is fundamentally a constitutional matter. Jurisdiction has been held as the life wire of adjudication which cannot be waived or compromised. The Court in other words must first be clothed with jurisdiction before it can properly and competently operate. The determinant overriding consideration of a Court in adjudication is to first ensure that it is by law predisposed to preside over a matter brought before it, without jurisdiction, the Court acts in futility and the proceeding no matter how well conducted is a non-starter and therefore a nullity. The issue is so fundamental and cannot be relegated or dismissed by a wave of hand.”
There is no doubt and this has been settled, that the issue of jurisdiction being a fundamental one can be raised at any stage of the proceedings in the Court of first instance or in the appellate Courts. Same issue of jurisdiction or competence of the Court can be raised either by any of the parties or by the Court suo motu. Indeed, where there are sufficient facts ex facie on the record of Court establishing

lack of jurisdiction or want of competence in the Court, the Court is duty bound to raise it suo motu if the party so affected would not raise it. See the cases of OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 65 AT 528;OLORIEGBE VS. OMOTESHO (1993) 1 SCNJ 30; NUHU VS. OGELE (2003) 18 NWLR (PT. 852) 251 AT 279; ODIASE VS. AGHO (1972) 1 ALL NLR (PT. 1) 170; SENATE PRESIDENT VS. NZERIBE (2004) 41 WRN 39 AT 97 and MOZIE & ORS VS. MBAMALU & ORS (2006) 12 SCM (PT. 1) 306 AT 315 – 316.
In the case of E. A. UTOMUDO VS. MILITARY GOVERNOR OF BENDEL STATE & ORS (2014) LPELR – 22880 (SC) P. 69, PARAS. D – F per John Inyang Okoro, JSC the Supreme Court had this to say:
“…jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks the jurisdiction to do so. Issue of jurisdiction can be raised at any time and even for the first time on appeal in this Court. See CHIEF ETUEDOR UTIH & ORS V. JACOB UMURHURU ONOYIVWE & ORS (1991) 1 NWLR (pt. 166) 166, (1991) 1 SC (Pt. 1) 61; F. A. AKINBOBOLA V. PLISSON FISKO NIGERIA LTD & ORS (1991) 1 NWLR (Pt. 167) 270.”
From all the authorities

cited above, it is clear that the service of a Notice of Appeal is important. Just like an originating process gives jurisdiction to the trial Court, a Notice of Appeal is the originating process that gives the Appellate Court the jurisdiction to hear an appeal.
Failure to serve the Notice of Appeal if shown on record, affects the jurisdiction of the Court. It is not a mere irregularity that can be waived. Thus, the fact that the 1st – 3rd Respondents has filed their Respondents’ Brief of Argument and any other process(es) in this appeal before filing the Notice of Preliminary Objection just before the hearing of the appeal, does not cure the incompetency of the appeal which arose out of the non-service of the Notice of Appeal that has now affected the jurisdiction of the Court to hear the whole appeal.
The matter of jurisdiction especially as in this case, is one that goes to the root of the appeal and is not one that can be taken as an irregularity. There is no better way to paint the scenario, if the jurisdiction of the Court is affected there is nothing the Court can do as its hands would be tied where the appeal is incompetent due to

the non-service of the Notice of Appeal. The proper order the Court should make in the circumstance should therefore be one of striking out the appeal.
Also worthy of mention before I make my decision, is that the case of ADEGBOLA VS. OSIYI & ORS (2017) LPELR-42471(SC) as cited by the Counsel to the 1st – 5th Respondents in Appeal No: CA/ PH/444/2020 as ADEGBOLA VS. OSIYI & ORS (2018) 4 NWLR (PT. 1608) 1 AT PG. 12 – 13 PARAS H – F in the list of additional authorities before this Court is quite instructive to the case at hand and I shall apply same.
The Appellant’s Counsel had argued that they served the Respondents with the Notice of Appeal. However, there is nowhere it is shown that there is proof of such service at least, that would have put rest to this whole issue. See the decision per Musa Dattijo Muhammad JSC in ADEGBOLA VS. OSIYI & ORS (SUPRA) at page 9 – 11 paras C – A wherein his lordship held that only filed or original of the affidavit of service shall suffice in establishing the fact of service of the Notice of Appeal.
It is settled law that proof of service of processes on all

parties to the suit before the Court is the factor which confers jurisdiction of the Court on the parties and in the absence of such proof of service, the Court acts in vain. See the decision of Sidi Dauda Bage, JSC in ADEGBOLA VS. OSIYI & ORS (SUPRA) AT PAGE 18 – 19, PARAS F – G.
The effect of non-service on the Respondents of the Notice of Appeal is that it deprives the Respondents the opportunity of participating in the settlement of the Record of Appeal. See the decision per Ejembi Eko, JSC ADEGBOLA VS. OSIYI & ORS (SUPRA) AT PAGE 16 – 18, PARAS C – D.
Order 2 Rule 2 of the Court of Appeal Rules, 2016 provides that the Notice of Appeal should be served on the parties mentioned in the Notice of Appeal upon being filed. This requirement does not entail that the Notice of Appeal should be served together with the Record of Appeal because when that is done, it means no opportunity has been afforded the Respondents to participate in the settlement of records before the compilation of the Record of Appeal.
In conclusion and having in mind all my findings above including all the authorities cited above and the

recent decision of the Apex Court in ADEGBOLA VS. OSIYI & ORS (2017) LPELR – 42471 (SC), it is obvious that:
1. The Notice of Appeal should have been filed and served separately from the record of Appeal to afford the Respondent an opportunity to participate in the settlement of record.
2. That the Respondent took a step in the proceedings does not mean that they have waived their right to challenge the jurisdiction of Court to hear the appeal when the Notice of Appeal was not and has been served on them.
3. The Appellant cannot prove that service of the Notice of Appeal was made on the Respondents apart from that served in the Record of Appeal and so the Court can only safely arrive at the conclusion that the Notice of Appeal was not served on the 1st – 3rd Respondents.
In the final result, I am of the humble but well considered view that the 1st – 3rd Respondents were not served with the Notice of Appeal as required by the Rules of this Court and therefore the consequence of non-service of the Notice of Appeal on them means that this Court has not been clothed with the appropriate jurisdiction to hear this appeal.

The appropriate order this Court ought to make is one striking out this appeal for being incompetent.
In the circumstance I hereby uphold the Preliminary Objection filed by the 1st – 3rd Respondents. This appeal is therefore hereby struck out. I make no order as to costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: I agree.

Appearances:

P. Soje, Esq, For Appellant(s)

N. Nwosu Esq with him, S. Obliseh, Esq. and B. Ukandu, Esq.- for 1st to 3rd Respondents
F. T. Okorotie Esq with him, S. Y Dumbo, Esq, – for 5th Respondent
I. S. Ibanichuka, Esq.- for 6th – 8th Respondents
J. A. Richard, Esq,- for 9th – 12th Respondents
S. S. Ibanichuka, Esq. – for 13th – 15th Respondents
O. Ogbom, Esq. – for 16th – 17th Respondents For Respondent(s)

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