BUNI & ORS v. OZOBO & ORS (2020)

BUNI & ORS v. OZOBO & ORS

(2020)LCN/14883(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/PH/453/2020

RATIO

APPEAL: POSITION OF THE LAW AS IT RELATES TO FILING AND SERVICE OF A NOTICE OF APPEAL

This position of law as it relates to filing and service of a notice of appeal can be found in Order 2 Rule 1(a), 2 and 3 of the Court of Appeal Rules, 2016 which provide as follows:
“1. (a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
2. 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:
Provided that the Court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order(s) as might have been made if the persons served without notice had been originally parties to the appeal.
3. 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.”
From Order 2 above, it can be ascertained that a Notice of Appeal should be served on all parties in the appeal. PER BABA IDRIS, J.C.A.

APPEAL: IMPORTANCE OF SERVING A NOTICE OF APPEAL

The importance of serving a notice of appeal was stated 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 where the Court held that:
“…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, see Order 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.”
This principle was reiterated in the case of HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) where it was held that:
“A Notice of Appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons in the ordinary civil actions that a party’s complaints against a decision by way of grounds of appeal not forming part of the Notice of Appeal cannot be entertained. Once the notice is vitiated in anyway, the appeal becomes incompetent and liable to be struck out.” See also the case of Kolawole V. Alberto (1989) SC Part III 187. Again, in First Bank of Nigeria Plc V. T. S. A. Industries Ltd. (2007) 17 WRN 40 at 78, it was held thus:-
It is elementary that the basis or the foundation of an appeal in this Court is the Notice of Appeal filed in the Court below against any of its decision or judgment…the legality by and life of an appeal in this Court is brought about by due and proper filing of a valid Notice of Appeal in the Court below. Thereafter, it is the duty of the Court to ensure that parties are properly served with the required hearing notices. It is trite law that service of all processes ought to be made on the parties, the absence of which will vitiate any proceedings as it amounts to a violation of fair hearing. Service of a Notice is, therefore very fundamental and indispensable, the failure of which certainly will entitle a party not served and against whom any order is made in his absence to have the order set aside. This is on the ground that a condition precedent to the exercise of jurisdiction for making such an order has not been fulfilled.”
What the decisions above mean therefore is that where there is no evidence before the Court to show that a Notice of Appeal has been served then that failure to serve such Notice of Appeal renders the appeal incompetent and in effect robs the Court of jurisdiction. See also IHEDIOHA VS. OKOROCHA (2015) LPELR – 40837 (SC).
The issue of non-service of the Notice of Appeal robbing the Court of jurisdiction was aptly stated by the Supreme Court in HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) 38 – 39, PARAS. A – E thus:
“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.”
Similarly, in ADEGBOLA VS. OSIYI & ORS (supra) it was held per Musa Dattijo Muhammad JSC that:
“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 BABA IDRIS, J.C.A.
JURISDICTION: EFFECT OF A COURT BEING ROBBED OF JURISDICTION

When a Court has been said to be robbed of jurisdiction, the effect is that the competence of the Court to hear the matter has been affected and the Court therefore has no jurisdiction to hear the matter. In JIDE ALADEJOBI VS. NIGERIAN BAR ASSOCIATION (2013) LPELR – 20940 (SC), the Supreme Court as to the competence of a Court to exercise jurisdiction held:
“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 MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 and 594; ABUBAKAR UMARU ABBA TUKUR v. THE GOVERNOR OF TARABA STATE & ORS (1997) 6 NWLR (PART 510) 549; ATTORNEY GENERAL OF THE FEDERATION v. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PART 618) 187; DR. ARTHUR AGWUNCHA NWANKWO & ORS v. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PART 1209) 518.”
The above principle of law was echoed in ADEREMI DADA OLUTOLA VS. UNIVERSITY OF ILORIN (2004) LPELR – 2632 (SC) where it was held that:
“I think it is pertinent, to the principles by which a Court ought to be guided to determine whether the Court has the necessary competence to adjudicate upon a cause or matter brought before it, on this point, I must refer to Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, where Bairamian, F.J. enunciated the principles. But two of them, which I consider relevant to my consideration of this appeal, are as reproduced thus: – (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. It follows from the above principles that a Court inter alia will have the necessary competence to hear and determine a matter before it if the subject matter is within its jurisdiction, and there is no feature in the case, which prevents the Court from exercising its jurisdiction.” PER BABA IDRIS, J.C.A.
JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION

The law has been long settled that the issue of jurisdiction being a fundamental one can be raised at any stage of the proceedings in a Court of Law. In fact, the issue of jurisdiction can be raised at the Court of first instance or in the Supreme Court for the first time. Furthermore, the issue of jurisdiction can be raised by any of the parties or even by the Court suo motu. As such where sufficient facts show on the record that the Court lacks jurisdiction the Court is duty bound to raise it suo motu even if the party so affected did not raise it. See the cases of OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 65 AT 528; OLORIEGBE VS. OMOTOSHO (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 E. A. UTOMUDO VS. MILITARY GOVERNOR OF BENDEL STATE & ORS (2014) LPELR – 22880 (SC) P. 69, paras. D-F John Inyang Okoro, JSC held thus:
“…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.”
This in turn means that the jurisdiction of Court cannot be waived. The Supreme Court in 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 defined waiver as follows:
“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.”
As it relates to whether the issue of jurisdiction can be waived, the Supreme Court in 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 held:
“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.” PER BABA IDRIS, J.C.A.
PRELIMINARY OBJECTION: EFFECT OF FAILURE TO MOVE A PRELIMINARY OBJECTION AT THE HEARING

The law is that when a preliminary objection is not moved at the hearing of the appeal it is deemed to be abandoned even if it is argued in the brief. See NSEFIK (SINCE DEAD) & ORS VS. MUNA & ORS (2013) LPELR – 21862 (SC) and REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR – 22372 (SC) where arguments for the preliminary objection were contained in the brief of arguments but the motion was not moved in open Court and as such the Court deemed the motion abandoned. From the cases above, the reasoning of the Court is that it is the raising and arguing of the preliminary objection at the oral hearing that is important. PER BABA 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

HIS EXCELLENCY GOVERNOR BALA MAI MALA BUNI (Chairman, All Progressive Congress (APC) National Caretaker Committee) 2. ISIAKA OYEBOLA 3. KEN NNAMANI APPELANT(S)

And

MR. 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 NATIONAL ELECTORAL COMMISSION (INEC) 5. ALL PROGRESSIVE CONGRESS (APC) 6. RT. HON PEREMOBOWEI EBEBI 7. STELLA OKORETE 8. HIS EXCELLENCY GOVERNOR SANI BELLO 9. DR. JAMES LALU 10. SEN. ABUBAKAR YUSUF 11. HON. AKINYEMI OLAIDE 12. DAVID LYON 13. PROF. TAHIR MAMMAN 14. ISMAIL AHMED 15. SEN. AKPAN UDOEDEHE (4th-15th Defendants 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): This is an appeal against the decision/judgment of Honourable Justice Jane Inyang of the Federal High Court Yenagoa Judicial Division delivered on the 3rd of day of November, 2020 nullifying the nomination and sponsorship of the 6th Respondent as the candidate of the 5th Respondent in the primary election for the Bayelsa West Senatorial District seat.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the 1st – 3rd Respondents as 1st – 3rd Plaintiffs in the lower Court filed an originating summons dated and filed on 15th day of September, 2020 seeking a determination of the following questions:
1. Whether the Bayelsa West Senatorial Primary election which allegedly held on the 3rd September, 2020 which produced the 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 provision of the 2nd Defendant’s (APC) Constitution on membership, 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.

The Plaintiffs sought the following reliefs:
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 Sentorial election was not in accordance with 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) and as well as 2nd Defendant’s (APC) Constitution and Guidelines for 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 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 31/10/2020 or any other date thereabout.

In support of the originating summons was a written address and an affidavit of thirty-five paragraphs deposed to by the 1st Plaintiff with the following Exhibits attached:
1. EXHIBIT A1: a copy of letter dated 2nd September,

2020 and signed by R. E. Egwuaba, Esq
2. EXHIBIT A2: a copy of letter dated 5th September, 2020 and signed by R. E. Egwuaba, ESq
3. EXHIBIT A3: a copy of APC Membership Card of the 1st Plaintiff
4. EXHIBIT A4: a copy of Voter’s Card of the 1st Plaintiff
5. EXHIBIT A5: a copy of APC Membership Card of the 2nd Plaintiff
6. EXHIBIT A6: a copy of APC Membership Card of the 3rd Plaintiff
7. EXHIBIT A8: a copy of APC Membership Card of the 3rd Defendant
8. EXHIBIT A10: a copy of APC Constitution (as amended)

The 3rd Defendant filed a notice of preliminary objection and written address in support on the 5th October, 2020 and in reaction to the affidavit in support of the Originating Summons filed a written address and counter affidavit dated 19th October, 2020 with twenty-one paragraphs with the following exhibits:
1. EXHIBIT FA: a copy of the summary result sheet for the 2020 Bayelsa West Senatorial District Bye-Election
2. Exhibit FB: a copy of a letter of resignation dated 11th October, 2019 and signed by the 3rd Defendant
3. EXHIBIT FC: a copy of a grant of application for waiver dated 20th July,

2020 and signed by the Secretary, Caretaker/Extraordinary National Convention Planning Committee.

The 3rd Defendant on the 23rd of October, 2020, filed a Motion on Notice for Stay of further proceedings with an affidavit of fifteen paragraphs deposed to by the 3rd defendant and attached was Exhibit EA and a written address. And the 1st Defendant filed a counter affidavit of 6 paragraphs on the 12th of October, 2020 and a Preliminary Objection and its written address. The 2nd Defendant on the 26th of October, 2020 filed a counter affidavit of five paragraphs with Exhibits APC1, APC2 and APC3, attached thereto, a written address and a preliminary objection.

The 4th – 6th Defendants filed a preliminary objection dated 20th October, 2020 and an affidavit and a written address, while the 7th – 10th Defendants in reaction to the affidavit in support of the originating summons filed a counter affidavit and a preliminary objection. As for the 11th – 13th Defendants, on the 26th of October, 2020, they filed a counter affidavit with Exhibits APC1 – 6 and a written address attached thereto. Finally, the 14th – 15th Defendants in

reaction to the affidavit in support of the originating summons filed a counter affidavit, a written address and a motion on notice.

The Plaintiff in response to the counter affidavit of the 2nd, 4th, 6th, 7th – 10, 11 – 13, 14 – 15 Defendants filed a further and better affidavit and attached thereto were Exhibits A12 – 13 as well as a reply on point of law on the 26th of October, 2020. All the counsels adopted their respective written addresses in support of their affidavits and applications in support or against the originating summons on the 26th of October, 2020. The Appellant being dissatisfied with the decision of the trial Court appealed to this Court.

The parties to the appeal before this Court filed and exchanged their respective brief of arguments. In the Appellants’ brief of argument as settled by his counsel I. S. Ibanichuka Esq. dated 23rd November, 2020 and filed 24th November, 2020, the following issues for determination were distilled from the grounds of appeal thus:
1. Was the lower Court right when it failed to apply the established judicial precedents laid down by the Supreme Court in the cases

of OJUKWU V OJUKWU (2008) 18 NWLR (PT. 1119) 439; EZE V PDP & ORS (2018) LPELR 44907 (SC); TARZOOR V IORAER (2016) 3 NWLR (PT. 1500) 463; APC V LERE (2020) 1 NWLR (PT. 1705) 254 at 285; NAGOGO V CPC (2013) 2 NWLR (PT. 1339) 499 and MAIHAJA V GAIDAM (2018) 4 NWLR (PT. 1610) 454 to the facts of this case to the effect that by the provisions of Section 87(9) of Electoral Act 2010 (as amended) only an aspirant stricto sensu who participated in the primary elections of a party has the locus standi to challenge the outcome of the said elections? (Distilled from Ground 5 of the Notice of Appeal)
2. Whether the learned trial judge was right when he held that the 1st – 3rd Respondents had on a preponderance of evidence been able to prove that no primary election, direct or otherwise, took place in all twenty-six wards of Bayelsa West Senatorial District on 3rd September 2020? (Distilled from Grounds 7, 8, 9 and 10 of the Record of Appeal)
3. Was the lower Court right when it failed to appreciate reasoning behind the notice of preliminary objection filed by the Appellant dated 20th October 2020 and arrived at the finding and conclusion that the

appellants were duly served the originating processes, the Motion of Notice (sic) and the Order of Court on 2nd October, 2020 in compliance with the Order of Court made 28th October, 2020 and deemed the Appellants to have been duly served having suffered no miscarriage of justice? (Distilled from Grounds 1, 2, 3, 4 and 6 of the Notice of Appeal)

As it relates to issue one Counsel for the Appellants argued that in resolving the issue of whether the 1st – 3rd Respondents had the locus standi to institute the action, the trial judge’s reasoning was selective, narrow and tows a dangerous path for litigants to approach the Court at every whim and caprice. Counsel then argued that Section 6(6) of the Constitution was explained in DINGYADI & ANOR VS. INEC & ORS (2011) LPELR – 950 (SC) and UTIH & ORS VS. ONOYIVWE & ORS (1991) LPELR – 3436 (SC). Additionally, that it was not in doubt that 1st – 3rd Respondents situated their claims under Section 87(1), (2) and (3) but deliberately chosed to circumvent the resultant implications of Section 87(9) of Electoral Act 2020 (as amended).

Counsel also relied on GABRIEL MADUKOLU & ORS VS. JOHNSON NKEMDILIM & ORS

(1962) ALL NLR 587; OLORUNTOBA-OJU & ORS VS. ABDUL-RAHEEM & ORS (2009) LPELR – 2596 (SC) and ODU’A INVESTMENT CO LTD VS. TALABI (1997) LPELR-2232 to argue that the competence of a Court is an essential element in determining its jurisdiction. Counsel then submitted that the trial judge was wrong to have given a wide and unfettered meaning to the provision of Section 6(6) of the Constitution and circumvented the provision of Section 87(9) of the Electoral Act 2010 (as amended) to determine if the 1st – 3rd Respondents quality indeed as aspirants to be sufficiently clothed with requisite locus standi to have instituted the action.

It was argued that the trial judge was also wrong to have avoided the established judicial precedents laid down by the Supreme Court on the matter and that this case falls on all fours with several cases cited by the 6th – 15th Respondents including OJUKWU VS. OJUKWU (2008) 18 NWLR (PT. 1119) 439 and EZE VS. PDP & ORS (2018) LPELR – 44907 (SC) and as such the lower Court was wrong to have distinguished them from the instant case.

Counsel for

the Appellants then argued that the reasoning of the trial judge was inexcusable and ought to be reprimanded in line with the case of GBANDE & ANOR VS. AFAOR & ORS (2012) LPELR – 8613 (CA). It was further argued that the 1st – 3rd Respondents participated as aspirants in the primary election of the 5th Respondent. Counsel then urged the Court to resolve this issue in their favour.

In arguing issue two Counsel submitted that it is trite law that declaratory reliefs are not granted as a matter of cause but must succeed on the strength of the case and not on the weakness of the other party. Reliance was placed on the cases of OGUNYEMI & ORS VS. SONEYE & ANOR (2018) LPELR – 44877 (CA) and OKOYE & ORS VS. NWANKWO (2014) LPELR – 23172 (SC) PP. 71 to buttress the above point.

Counsel then submitted that the burden of proving that elections did not take place in all 26 wards in Sagbama and Ekeremor Local Government Area is on the 1st – 3rd Respondents and that burden was never discharged. It was argued that in order to prove that elections did not take place in all 26 wards it was the responsibility of the

1st – 3rd Respondents to lead credible evidence, polling unit by polling unit, ward by ward and the case of OKE & ANOR VS. MIMIKO & ORS (2013) LPELR – 21368 (SC) PP. 47 was cited in support.

Counsel submitted that the failure of the 1st – 3rd Respondents to lead credible evidence that no elections held in Sagbama and Ekeremor Local Government Area is fatal to their case and the trial Court was wrong to shift the burden on the 4th Respondent and other Respondents. Counsel for the Appellants also argued that the 1st – 3rd Respondents did not have any proof that the 5th Respondent conducted or scheduled to conduct a DIRECT primary elections other than a mere assertion in paragraph 7 of his affidavit in support as such without proof of the nature of primary election whether Direct or Indirect, being led by the 1st – 3rd Respondents, the lower Court ought not to have relied on the case of the other Respondents to prove this point.

Finally, counsel argued that the Court noted the unwillingness of the Respondents especially the 4th Respondent (INEC) to aid the case of the 1st – 3rd Respondents and sought to rely

on inadmissible evidence as proof their case in its judgment on page 1180 of the record of appeal, yet the Court admitted the inadmissible evidence and did not give any tangible reason why the evidence was admitted. The Court was urged to resolve this issue in favour of the Appellants.

For issue three, the Appellants’ Counsel argued that the Court despite making findings to the effect the 1st – 3rd Respondents’ counsel did not react to the issues to the Preliminary Objection as such it ought to have deemed that the objection raised by the Appellants as having been conceded and had no answer to the Appellants’ objection. The cases of UMANAH VS. NDIC (2016) LPELR – 42556 (SC); CHUKWU VS. CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR – 23813 (CA) and ODELUGA VS. ANIAKOR (2012) LPELR – 19977 (CA) were cited in support.

Counsel then argued that the complaint of the Appellants was that the order for substituted service was not validly made and ought to be set aside having been made suo motu without any valid application coming from the 1st – 3rd Respondents. It was argued that the lower

Court was clearly wrong when it granted an order for substituted service suo motu, a decision which rendered as null and void the service of the said processes on the Appellants as well as the subsequent proceedings before the Court.

Counsel also argued that a cursory glance at provisions of Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules 2010 and paragraph 8 of the First Schedule to the Electoral Act 2010 (as amended) are in pari materia and as such it will be apposite to apply the decided cases on the point bother on the interpretation of the said provisions, the trial judge was therefore wrong when he failed to apply the cases of ZAKIRAI VS. MUHAMMED & ORS (2017) LPELR – 42349 (SC); KANGNAAN VS. KANGNAAN (2019) LPELR – 46502 (CA) and EIGEGE VS. OLOBO (1993) LPELR – 23040 (CA).

Counsel the argued that the two cases of GLOBAL EXCELLENCE COMMUNICATIONS LTD & ANOR VS. DUKE (2007) LPELR – 1323 (SC) and AMAECHI VS. INEC & ORS (2008) LPELR – 446 (SC) do not apply to the instant case and counsel gave four ways the case must be distinguished from the decided cases above. It was therefore argued

that the 1st Appellant and the 8th Respondent do not fall within the exceptions created by Section 308 of the Constitution. Finally, it was argued that the lower Court’s failure to resolve the issue of service timeously as to afford the complainant the option of weighing his options as to file a defence amounts to a breach of his right to fair hearing and the case of KALU VS. STATE (2017) LPELR – 42101 (SC). Counsel then urged the Court to resolve this issue in their favour.

In the 1st – 3rd Respondents’ brief dated 29th November, 2020 and filed on the 30th November, 2020 settled by F. N. Nwosu, Esq, the following issues were formulated for the determination of this appeal thus:
1. Whether having regard to Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 31(1) (2) & (3) of the Electoral Act 2010 (as amended) and the state of our laws the trial Court was right to assume jurisdiction to entertain the suit of the 1st – 3rd Respondents who are citizens of Nigeria and members of the 5th Respondent (APC), whose right to participate and vote in their political party’s direct

primary election as members were unlawfully disenfranchised by the 5th Respondent? (Ground 5 of the Notice of Appeal)
2. Whether in view of the facts and circumstances of the plaintiff’s case at the trial Court, the extant provisions of Section 87(1) (2) & (3) of the Electoral Act, 2010 (as amended) read together with the Constitution of the 5th Respondent and its party guidelines for direct primary election, the trial Court was right to nullify the purported 5th Respondent’s Bayelsa west senatorial district primary election of 3rd September, 2020 and also the nomination of the 6th Respondent herein? (from grounds 7, 8, 9 and 10 of the Notice of Appeal)
3. Whether having regard to the provisions Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the provisions of Order 6 Rule 5 (b) and (d) (ii) of the Federal High Court (Civil Procedure Rules), 2019 and the state of decided judicial authorities, the trial Court processes the lawful power and can exercise its discretion to order for substituted service of the 1st – 3rd Respondent’s originating processes on the Appellants herein upon the

application of the 1st – 3rd Respondents to the trial Court? (from grounds 1, 2, 3, 4 and 6 of the Notice of Appeal).

In arguing issue one counsel for the 1st – 3rd Respondents submitted that the trial Court was right to have assumed jurisdiction to entertain the 1st – 3rd Respondents suit and determine the constitutional rights of the 1st – 3rd Respondents who are citizens of Nigeria, whose rights to participate and vote in their political party’s direct primary election as members and lawful stakeholders were unlawfully disenfranchised by the 5th Respondent.

Counsel urged the Court to discountenance all the submissions of the Appellants in respect of this issue. The Court was also urged to hold that even though the 1st – 3rd Respondents were not aspirants and have not predicated their suit on Section 87(9) of the Electoral Act 2010 (as amended), the trial Court was right to have assumed jurisdiction to entertain the suit of the 1st -3rd Respondents who are citizens of Nigeria, whose rights to participate and vote in their political party (APC) direct primary election as members unlawfully denied by the 5th Respondent.

As it relates to issue two Counsel argued that in view of the facts and circumstances of the 1st – 3rd Respondents’ case at the trial Court, the extant provisions of Section 87(1) (2) and (3) of the Electoral Act, 2010 (as amended) read together with the Constitution and party guidelines of the 5th Respondent for direct primary and stated judicial authorities, the trial Court was right to nullify the 5th Respondent’s Bayelsa West Senatorial District purported direct primary election of 3rd September, 2020 that did not hold and was also right to set aside the nomination of the 6th Respondent herein as the candidate of the 5th Respondent in the forthcoming Bayelsa West Senatorial District Bye-election.

Finally, in arguing issue three Counsel submitted that it was borne out of the trial Court’s jurisdiction and pursuant to the application of the 1st – 3rd Respondents for leave and order of the trial Court that the originating processes were served on the Appellants herein on the 2nd October, 2020. It was argued that the substituted service was effected on the 4th to 6th Defendants now Appellants by Mr. Reuben Egwuaba who

personally effected the service and filed an affidavit of service on the 7th of October, 2020. Counsel relied on AKEREDOLU VS. ABRAHAM & ORS (2018) 10 NWLR (PT. 1628) 510; UNITED NIGERIA PRESS & ANOR VS. ADEBANJO (1969) LPELR – 25571 and IHEDIOHA & ANOR VS. OKOROCHA & ORS (2016) 1 NWLR (PT. 1492) 147.

Counsel then submitted that the Appellants pursuant to the said service of the processes of the trial Court in effective compliance with the order of the Court entered an appearance in the suit and canvassed their defence to the substantive suit on the merit which gave rise to a judgment and as such it was submitted that the Appellants’ contention as to substituted service goes to no moment.

The 1st – 3rd Respondent’s Counsel filed a Notice of Preliminary Objection dated 29th November, 2020 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.

An affidavit in support of the Notice of Motion was also deposed to by Mr. Reuben Egwuaba, Esq. Before I go ahead, it is important that I first consider the Preliminary objection raised by the 1st – 3rd Respondent’s. The 1st – 3rd Respondents in arguing the Notice of Preliminary Objection before this Court, adopted the argument made by the Counsel to the 1st – 5th Respondents 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 the counsel argued that the Respondents were not served the Notice of Appeal. From the arguments of the Counsel in Court on the 3rd December, 2020, the Appellants’ Counsel submitted that the Respondents were served with the Notice of Appeal. The Respondents’ Counsel argued that there was no proof of service of the said Notice of Appeal attached to the

Appellants’ counter affidavit neither was there any affidavit of service to show that same was served. The Appellants’ Counsel 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 Appellants’ application for stay of execution and that they were also served with the record of appeal which contains the Notice of Appeal.

The Appellants’ 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 Appellants then filed a counter-affidavit challenging 1st – 3rd Respondents’ notice of preliminary objection which was deposed to by Timi Dadigi dated 3rd December, 2020. The Appellants also filed a written address in support of their counter affidavit challenging the 1st – 3rd Respondents’ Notice of Preliminary Objection with the following issue for determination:
Whether the 1st – 3rd Respondents Notice of Preliminary

Objection has demonstrated sufficient facts and law to warrant a dismissal of the appeal, taking into cognizance the facts and circumstances of this case.

The Appellants asserted that 1st – 3rd Respondents were indeed served with the Notice of Appeal and were also served with a summons for settlement of records by the Registrar of the Court. Counsel submitted that by EMEKA VS. OKOROAFOR & ORS (2017) LPELR – 41738 (SC), there is a prima facie proof by the records of the Court that the acts done by the officer of Court enjoys the presumption of regularity. It was also argued that the 1st – 3rd Respondents having failed to challenge the Record of Appeal or the acts of the officers of Court have failed to rebut the presumption of regularity conferred on the Record of Appeal. Counsel also submitted that if the 1st – 3rd Respondents wanted to deny that they were served they could have challenged the said record by complying with Order 3 Rule 7 of the Court of Appeal Rules 2016.

Counsel argued that the service of the Notice of Appeal cannot be challenged in the face of proof that it was indeed served on the counsel for 1st

– 3rd Respondents. It was also submitted that the 1st – 3rd Respondents were deemed to have waived their rights to complain having failed to challenge the service of the notice of appeal at the earliest opportunity but went further to take steps to file cross-appeal and brief of arguments of which the latter did not include arguments on the brief of argument. Counsel also argued that 1st – 3rd Respondents’ Notice of Preliminary Objection has been deemed abandoned when they failed to incorporate arguments on the said objection in their Respondents’ Brief of Argument filed on 2nd December, 2020. The cases of BEN VS. STATE (2006) LPELR – 770 (SC) and APGA VS. ANYANWU & ORS (2014) LPELR – 22182 were cited in support. Finally it was submitted that the preliminary objection lacks merit and ought to be struck out.

RESOLUTION OF THE PRELIMINARY OBJECTION
In deciding the 1st – 3rd Respondents’ Notice of Preliminary Objection, the sole issue raised by the Appellants in its written address in support of its counter-affidavit will be adopted and it is reproduced hereunder thus:
Whether the 1st

– 3rd Respondent Notice of Preliminary Objection has demonstrated sufficient facts and law to warrant a dismissal of the appeal, taking into cognizance the facts and circumstances of this case.

In any case after the Notice of Appeal has been filed in the lower Court, the Registry of the Court below shall cause for a copy of same to be served personally on each of the parties directly affected by the appeal that is, parties mentioned in the appeal. This position of law as it relates to filing and service of a notice of appeal can be found in Order 2 Rule 1(a), 2 and 3 of the Court of Appeal Rules, 2016 which provide as follows:
“1. (a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
2. 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:
Provided that the Court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order(s) as might have been made if the persons served without notice had been originally parties to the appeal.
3. 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.”
From Order 2 above, it can be ascertained that a Notice of Appeal should be served on all parties in the appeal. The importance of serving a notice of appeal was

stated 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 where the Court held that:
“…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, see Order 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.”
This principle was reiterated in the case of HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) where it was held that:
“A Notice of Appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons in the ordinary civil actions that a party’s complaints against a decision by way of grounds of appeal not forming part of the Notice of Appeal cannot be entertained. Once the notice is vitiated in anyway, the appeal becomes incompetent and liable to be struck out.” See also the case of Kolawole V. Alberto (1989) SC Part III 187. Again, in First Bank of Nigeria Plc V. T. S. A. Industries Ltd. (2007) 17 WRN 40 at 78, it was held thus:-
It is elementary that the basis or the foundation of an appeal in this Court is the Notice of

Appeal filed in the Court below against any of its decision or judgment…the legality by and life of an appeal in this Court is brought about by due and proper filing of a valid Notice of Appeal in the Court below. Thereafter, it is the duty of the Court to ensure that parties are properly served with the required hearing notices. It is trite law that service of all processes ought to be made on the parties, the absence of which will vitiate any proceedings as it amounts to a violation of fair hearing. Service of a Notice is, therefore very fundamental and indispensable, the failure of which certainly will entitle a party not served and against whom any order is made in his absence to have the order set aside. This is on the ground that a condition precedent to the exercise of jurisdiction for making such an order has not been fulfilled.”
What the decisions above mean therefore is that where there is no evidence before the Court to show that a Notice of Appeal has been served then that failure to serve such Notice of Appeal renders the appeal incompetent and in effect robs the Court of jurisdiction. See also IHEDIOHA VS. OKOROCHA (2015) LPELR

– 40837 (SC).
The issue of non-service of the Notice of Appeal robbing the Court of jurisdiction was aptly stated by the Supreme Court in HARRY VS. O. C. MENAKAYA (2017) LPELR – 42363 (SC) 38 – 39, PARAS. A – E thus:
“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.”
Similarly, in ADEGBOLA VS. OSIYI & ORS (supra) it was held per Musa Dattijo Muhammad JSC that:
“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 & Ors v. Chief Cornelius Okeke Ezenwa (1996) 4 NWLR (Pt. 443) 391.”
When a Court has been said to be robbed of jurisdiction, the effect is that the competence of the Court to hear the matter has been affected and the Court therefore has no jurisdiction to hear the matter. In JIDE ALADEJOBI VS. NIGERIAN BAR ASSOCIATION (2013) LPELR – 20940 (SC), the Supreme Court as to the competence of a Court to exercise jurisdiction held:
“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 MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 and 594; ABUBAKAR UMARU ABBA TUKUR v. THE GOVERNOR OF TARABA STATE & ORS (1997) 6 NWLR (PART 510) 549; ATTORNEY GENERAL OF THE FEDERATION v. GUARDIAN NEWSPAPERS LTD

(1999) 9 NWLR (PART 618) 187; DR. ARTHUR AGWUNCHA NWANKWO & ORS v. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PART 1209) 518.”
The above principle of law was echoed in ADEREMI DADA OLUTOLA VS. UNIVERSITY OF ILORIN (2004) LPELR – 2632 (SC) where it was held that:
“I think it is pertinent, to the principles by which a Court ought to be guided to determine whether the Court has the necessary competence to adjudicate upon a cause or matter brought before it, on this point, I must refer to Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, where Bairamian, F.J. enunciated the principles. But two of them, which I consider relevant to my consideration of this appeal, are as reproduced thus: – (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. It follows from the above principles that a Court inter alia will have the necessary competence to hear and determine a

matter before it if the subject matter is within its jurisdiction, and there is no feature in the case, which prevents the Court from exercising its jurisdiction.”
The Appellants have raised the fact that even if the Notice of Appeal was not served it is a mere irregularity which given the steps taken by the 1st – 3rd Respondents in the case they have waived the irregularity of the said service.
At this juncture I will again rely on ADEGBOLA VS. OSIYI & ORS (supra) where the Supreme Court held that:
“…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.” (Emphasis mine).
Drawing from the principle above, non-service goes to the jurisdiction of the Court and it is not a mere

irregularity. The law has been long settled that the issue of jurisdiction being a fundamental one can be raised at any stage of the proceedings in a Court of Law. In fact, the issue of jurisdiction can be raised at the Court of first instance or in the Supreme Court for the first time. Furthermore, the issue of jurisdiction can be raised by any of the parties or even by the Court suo motu. As such where sufficient facts show on the record that the Court lacks jurisdiction the Court is duty bound to raise it suo motu even if the party so affected did not raise it. See the cases of OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 65 AT 528; OLORIEGBE VS. OMOTOSHO (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 E. A. UTOMUDO VS. MILITARY GOVERNOR OF BENDEL STATE & ORS (2014) LPELR – 22880 (SC) P. 69, paras. D-F John Inyang Okoro, JSC held thus:
“…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.”
This in turn means that the jurisdiction of Court cannot be waived. The Supreme Court in 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 defined waiver as follows:
“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.”
As it relates to whether the issue of jurisdiction can be waived, the Supreme Court in 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 held:
“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.”
Finally, the Appellants raised the issue of the notice of

preliminary objection being abandoned when it was not incorporated into the brief of argument filed on 2nd December, 2020. The law is that when a preliminary objection is not moved at the hearing of the appeal it is deemed to be abandoned even if it is argued in the brief. See NSEFIK (SINCE DEAD) & ORS VS. MUNA & ORS (2013) LPELR – 21862 (SC) and REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR – 22372 (SC) where arguments for the preliminary objection were contained in the brief of arguments but the motion was not moved in open Court and as such the Court deemed the motion abandoned. From the cases above, the reasoning of the Court is that it is the raising and arguing of the preliminary objection at the oral hearing that is important. In the instant case the preliminary objection was moved and the arguments of counsel in the sister case was adopted and as such the preliminary objection was not abandoned.
In conclusion and having regard to all the cases cited above, it is clear that the service of a Notice of Appeal is important and much like an originating process it 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. As such 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 Respondents has filed his Respondent Brief of Argument and also filed the Notice of Preliminary Objection just before the hearing of the appeal does not cure the incompetency of the appeal.
In the instant case there was neither a proof of service nor an affidavit of service deposed to by the Registrar to prove that the Notice of Appeal was indeed served. As a consequence, since non-service of the Notice of Appeal is a matter of jurisdiction it goes to the root of the appeal and cannot be seen as an irregularity and there is no way to salvage the situation. Once jurisdiction of the Court is affected nothing can be done by the Court as its hands are tied and the appeal becomes incompetent.
In the circumstance, this appeal is therefore hereby struck out for being incompetent. I make no order to cost.

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

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

Appearances:

S. IBANICHUKA, ESQ. For Appellant(s)

N. NWOSU, ESQ., with him, S. OBLISEH, ESQ. and B. UKANDU, ESQ. – for 1st to 3rd Respondents
T. P. SOJE, Esq. – for 5th Respondent
F. T. OKOROTIE, ESQ., with him, S. Y DUMBO, ESQ. – for 6th Respondent
J. A. RICHARD, ESQ. – for 7th – 10th Respondents
S. S. IBANICHUKA, ESQ. – for 11th – 15th Respondents For Respondent(s)

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