CHRISTOPHER ONYEMEZE & ANOR v. INNOCENT OKOROAFOR (2013)

CHRISTOPHER ONYEMEZE & ANOR v. INNOCENT OKOROAFOR

(2013)LCN/6040(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of March, 2013

CA/OW/153/2011

RATIO

SERVICE: SERVICE OF PROCESS IS FUNDAMENTAL TO THE ASSUMPTION OF JURISDICTION BY THE COURT

It is trite that service of process is fundamental to the assumption of jurisdiction by the court. Failure to serve any process including hearing notice on the other party is not a mere irregularity but a fundamental vice which vitiates the entire proceedings and entitles such a party to have both the proceedings and the judgment or ruling made pursuant to it set aside. It was essential for the motion on notice and the hearing notice to have been served on the Appellants personally since their counsel had refused service and wrote to the court stating good reasons why he should no longer be served with those processes. See ACB PLC v. LOSADA NIG. LTD & ANOR (1995) 7 NWLR (Pt.405) 26; SKEN CONSULT NIG. LTD. v. UKEY (1981) 1 SC 6; UNITED NIGERIA PRESS LTD & ANOR v. ADEBANJO (1969) 1 All NLR 431.PER JOHN INYANG OKORO, J.C.A

SERVICE: SERVICE IS A PRE-CONDITION TO THE EXERCISE OF JURISDICTION BY THE COURT

SERVICE: WHEN A PARTY HAS NOT BEEN SERVED WITH A DOCUMENT, IT CAN LEAD TO A TRIAL BEING A NULLITY AB INITIO

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA EKPE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. CHRISTOPHER ONYEMEZE
2. SAMUEL NWAKALI Appellant(s)

AND

INNOCENT OKOROAFOR Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Imo State High Court sitting in Owerri in Suit No. HOW/170/77 delivered on 27th September, 2010 wherein the lower court struck out the application filed by the Appellants on 28/10/9 seeking the following reliefs:
“(a) Setting aside ex-debito justiciae the order of the Honourable court made on 30/6/09 relisting this Suit No. How/170/77 struck out on 20th day of June, 2005.
(b) Setting aside ex-debito justiciae all the proceedings that have taken place in this suit since 30/6/05.”
The grounds upon which the reliefs were sought are:
a) That the defendants/applicants were denied fair hearing as the hearing notice for the relistment of the action that was struck out five years ago, was not served on them.
b) That an extraneous name was introduced into the matter by the court suo motu in place of the defendants without prior notice to them as there was no application for substitution by either party.
The facts leading to this appeal are that sometime in December, 1977, the Respondent herein as claimant instituted this action against the Appellants. Twenty years after, the Respondent amended his statement of claim in 1997 and went to sleep. On 20/5/05 when the matter came up for hearing, the Respondent’s counsel was not in court and no letter explaining his absence was written. The learned trial judge then struck out the matter in the following words:
“Court: This is a 1977 matter. I do not know why the plaintiff and his counsel will not be diligent in its prosecution. It is a shame to have a 1977 matter on the cause list and to expect the defendant to continue coming to court. By 1977 this court was in the Law school as a student and little did I know that a suit filed that year will be waiting for me to hear as a judge. This is not commendable and there must be an end to litigation. My order on the lost adjourned date cannot be in vain. For this reason, this suit is hereby struck out I make no order as to costs.
Signed
F. I. Duru aha-Igwe
Judge 20/6/05”
After this Ruling in 2005, nothing was heard from the Respondent (claimant). In 2009, more than four years after the striking out of the suit, counsel for the Appellant herein was served with a hearing notice for the relistment of the case. Although the address for service on the face of the hearing notice was Umuodagu Umuafor, Ezeobodo (the appellants home), the Respondent decided to serve the notice on the defendant’s counsel who complained that he had lost contact with his client about five years earlier. The Appellant’s counsel quickly returned the process to the Assistant Chief Registrar of the lower court with the reason in the letter that he had lost touch with the Appellants who presumed that the matter was over, five years after it was struck out. The letter also informed the court that both the Appellants and Respondent come from the same community which is the best place to serve the Appellants. The lower court did not make any attempt to serve the appellants. Rather the court proceeded to hear the Respondent’s motion for relistment without the Appellants who were Respondents to the motion.
After the order for relistment was made, coupled with an order for personal service on the Appellants for the hearing of the case, the Respondent was able to locate the appellants in their village and served them the same day. The Appellants then briefed their counsel and informed him that apart from hearing the motion for relistment in their absence, an extraneous defendant who had not been a party and who did not substitute any of them was introduced in the ruling of the court. In the said Ruling, made on 30/6/09 and copied on pages 18-19 of the record, the name Christopher Oparanozie was introduced as defendant instead of Christopher Onyemeze.
Counsel for the Appellants filed a motion to set aside the order as stated earlier. That application was struck out for importing the name of Christopher Oparanozie after the learned trial judge had refused to grant the reliefs sought. Dissatisfied with the stance of the learned trial judge, the Appellants filed Notice of Appeal on 12th October, 2010. The said notice of appeal contains two grounds of appeal out of which the learned counsel for the Appellants has formulated two issues for the determination of this appeal. The two issues are:
1. Whether from the facts of this case the appellants have not been denied fair hearing in the proceedings by the court below.
2. Whether the order of the lower court made on 30/6/09 relisting this matter upon which it introduced a party as defendant which is unknown to the appellant in this case, is competent and proper.
In the brief settled by E. C. Anyiam (Mrs.) on behalf of the Respondent, the two issues formulated by the Appellants are adopted intoto. I shall determine this appeal based on the two issues.
On the first issue, C. C. Okoroafor Esq., who settled the brief of the appellants submitted that failure to give an adverse party notice of what the other party is coming to face in court is a breach of the rules of fair hearing. It is his further submission that the refusal of the learned trial judge to order personal service on the Appellants who had lost touch with their counsel five years earlier and who come from the same community with the Respondent constituted an infraction of the appellants’ fundamental right to fair hearing. According to him, issues connected with fair hearing are matters of substance and not technicality and that any decision reached in that situation is null and void, citing the cases of KOTOYE v. CBN (1999) 1 NWLR (Pt. 98) 448; ADIGUN v. ATT. GEN OYO STATE (1987) 1 NWLR (Pt. 53) 678; ONIFADE v. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130.
Learned counsel submitted further that by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, the appellants are entitled to a fair hearing in the determination of their civil right and obligations. In his further argument, he submitted that one of the conditions precedent for a valid exercise of jurisdiction is due service of court process including hearing notice, failure of which robs the court of its jurisdiction. He relies on the following cases: MBADINUJU v. EZUKA (1994) 8 NWLR (Pt. 364) 535; WEMA BANK NIG. v. ODULAJA (2000) 7 NWLR (Pt. 662) 1; MOBIL NIG PLC. v. PAM (2000) 5 NWLR (Pt. 657). He urged this court to hold that the whole proceeding was null and void which the court below ought to have set aside. He also urged this court to resolve this issue in favour of the Appellant.
In his reply, the learned counsel for the Respondent submitted that the Appellants counsel was duly served with hearing notice and that since he did not withdraw his services for the Appellants, he was still his counsel. According to her, all the cases cited by the learned counsel for the Appellants are inapplicable.
It is her contention that section 36(1) of the constitution should not be read in isolation but in conjunction with Section 36(2)(a) which requires that the Appellant be given an opportunity to make representations which was satisfied in this case. She urged this court to resolve this issue against the appellants.
This appeal relates to a matter filed at the court below about 36 years ago and which hearing has not commenced. It was struck out in 2005 i.e. about 28 years after filing for want of diligent prosecution. Five years after, the Respondent herein (as claimant) woke up from slumber and got it relisted in 2009. Before then the hearing notice was served on the chambers of Mike Ahamba SAN who promptly wrote to the court returning the hearing notice with a complaint that he had lost contact with the Appellants herein since the matter was struck out about five years earlier. The said letter dated 6th January, 2009 and copied at page 20 of the record also pointed out they could no longer locate the Appellant herein. The short letter states:
“WRONG SERVICE OF PROCESS:
SUIT No. HOW/170/77: INNOCENT OKOROAFOR v. AMOS IHEAGWAM & 4 ORS
May we humbly return the process served on as for the Respondent in this application.
It is unfortunate that our office is being served a process for a client that we lost contact with in 2005 when the matter was terminated.
May we also observe that the Applicant counsel is aware that the Applicant and the Respondent are of the same community and would be in a position to locate the Respondents and same them than serving us with the process. We don’t know where to locate the Respondents. Let the Applicant same the Respondents personally.
We regret the inconveniences this will cause.
Enclosed is the process served.
Thanks.
Yours faithfully,
Signed
I. F. Amaefule Esq.
There is evidence on the face of the above letter that it was received by the court on 7th January, 2009 and yet on the 30th June, 2009 the court sat and determined the application for the relisting of the suit without the appellants herein being served with both the motion and hearing notice. In this matter, the learned trial judge held that since the learned counsel for the Appellant did not withdraw his services for the Appellants, the service on him was proper. With due respect to the learned trial judge, I beg to differ. What further notice was he asking for after counsel had written to the court stating that in view of the length of time from when the matter was struck out and when they came for relisting, he had parted ways with the Appellants herein and that he could not trace the appellants? I do not think it is even proper to serve counsel and then give him the task of tracing his former client. It should be the other way round. It is my view that when the court received the letter from counsel returning the process, the proper thing would have been to serve the process personally on the Appellants. This is much more so since the address for service of the process was Umuodagu/Umuofo Ezeodobo, Owerri West L.G.A and not the counsel’s address.
It is my view that the issues raised in the letter by Appellants’ counsel to the court on 6/1/09 were genuine and not frivolous. Five years after the matter was struck out was a long time which so many things have changed. It was therefore necessary for the Respondent to properly locate the Appellants who are from his community and serve them.
It is trite that service of process is fundamental to the assumption of jurisdiction by the court. Failure to serve any process including hearing notice on the other party is not a mere irregularity but a fundamental vice which vitiates the entire proceedings and entitles such a party to have both the proceedings and the judgment or ruling made pursuant to it set aside. It was essential for the motion on notice and the hearing notice to have been served on the Appellants personally since their counsel had refused service and wrote to the court stating good reasons why he should no longer be served with those processes. See ACB PLC v. LOSADA NIG. LTD & ANOR (1995) 7 NWLR (Pt.405) 26; SKEN CONSULT NIG. LTD. v. UKEY (1981) 1 SC 6; UNITED NIGERIA PRESS LTD & ANOR v. ADEBANJO (1969) 1 All NLR 431.

I need to emphasis that service is a pre-condition to the exercise of jurisdiction by the court. Where there is no service or there is a procedural fault in service, as in the instant case, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will assume and rightly so that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. See CRAIG v. KANSEEN (1943) 1 QB 256; OKE v. AIYEDUN (1986) 2 NWLR (Pt.23) 548; EIMSKIP LTD v. EXQUISITE INDUSTRIES NIG LTD (2003) 4 NWLR (809) 88.
In the instant case, there is nothing to show that the Appellants herein were aware of the motion taken and granted on 30th June, 2009. By Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Appellants are entitled to fair hearing in the determination of their civil rights and obligations. And by Section 36(2) (a) of the said constitution, the appellants ought to have been provided with an opportunity to make representations to the court before it took the decision to relist the matter. This failure has violently violated the provision of Section 36 of the 1999 Constitution. Therefore, both the proceedings and the order relisting the said suit is a nullity ab initio and ought to be set aside. This issue, as it turns out, is resolved in favour of the appellants.
The other issue has to do with the inclusion of the name Christopher Oparanozie in the proceedings instead of Christopher Onyemeze. Learned counsel for the Appellants submitted that the name surfaced for the first time in the ruling of the learned trial judge made on 30/6/09. According to learned counsel, the said suit was not properly constituted by reason of the inclusion of a strange party in the suit. It was his contention that the court has no power to substitute any party suo motu. It is his view that before substitution is made parties should be given an opportunity to address the court on the matter. He relies of the case of MOGAJI v. SALEH (2009) All FWLR (Pt.455) 1809.
Learned counsel conceded that a court becomes functus officio after delivering its judgment or ruling as it is not to sit on appeal over its decision. He argued however that the applicability of this principle is limited to where the judgment or order so delivered is legal in nature. That where the decision is clothed with illegality or fundamental irregularity or obtained by fraud or is made without jurisdiction, the trial court that delivered the decision may set it aside if called upon to do so ex-debito justiciae without the affected party having to proceed on appeal; citing the case of SKEN CONSULT v. UKEY (1930) 1 NSCC 16; OKAFOR v. AG. ANAMBRA STATE (1991) 6 NWLR (Pt.2000) 659.
In her response, the learned counsel for the Respondent conceded the fact that in the ruling, dated 27/9/09, the name of the 1st Appellant was written as Christopher Oparanozie instead of Christopher Onyemeze. According to the learned counsel, it was the Appellants and their counsel who introduced the name in their motion just to mislead the court. Alternatively, she argued that it could be regarded as typographical error. She urged this court to discountenance this issue.
The position in this matter is that after the suit was relisted, and the appellants served personally with hearing notice for the hearing of the substantive case, they approached the court and obtained exhibit ‘A’ which is the certified true copy of the proceedings, including the order for relistment. On that document, the name Christopher Oparanozie appears as a party instead of Christopher Onyenaeze. That was the basis of the complaint of the Appellants as ground two in the motion to set aside the Ruling. The learned trial judge on page 66 of the Record which is page 13 of the Ruling held as follows:
“From the above, it is clear that the purported certified true copy of the record of proceedings in the matter on 30th day of June, 2009 – Exhibit ‘A’ attached to the Affidavit in support does not represent the correct proceedings in this matter on that day. The court did not write or use the name Oparanozie or Christopher Oparanozie in the proceedings or at all. That name is quite a “stranger” to the proceedings”
The learned trial judge after the above pronouncement, struck out the application for being incompetent having been brought by a party who is not a party in the suit. With due respect to the learned trial judge, I am unable to appreciate this conclusion by the court. The Appellants herein were not served with hearing notice to attend court the day this matter was heard. Page 65 of the record confirms this. Line 23 thereof states:
“There is no proof of service hut there is a letter from the chambers of M. I. Ahamba SAN rejecting service.”
As I stated in the first issue, the learned SAN, Chief Mike Ahamba gave genuine reasons why he was rejecting service and suggested personal service. I had held that that was enough notice of withdrawal of appearance for the Appellants. Now come to think of it. The Appellants who were not in court approached the Registry of the lower court and received a certified true copy of the proceedings and Ruling of the said date. That CTC of the proceedings is signed by one A. N. Nwaneri (Mrs.) – Assistant Chief Registrar of the High Court, Owerri. The learned trial judge calls the certified true copy of the proceedings “purported” without going further to state what steps he took to find out whether the document emanated from his registry or not especially where the Assistant chief Registrar clearly printed her name and signature on the document. All the court said was that the document did not reflect what transpired in court on that date. It is my considered opinion that the Registrar who compiled the document should have been invited to clarify the point and thereafter correct the slip if it was a mistake. The Appellants ought not to have been punished for the mistake clearly made by the court. In SAMUEL AYO OMOJU v. THE FEDERAL REPUBLIC OF NIGERIA (2008) 7 NWLR (Pt.1085) 38, the Supreme Court held that where a judge makes mistake which from the record of his proceedings, were not intentional or deliberate and which, more importantly did not cause any miscarriage of justice to the other party that omission must not be anchored on technicalities to defeat the justice of the case. Thus the striking out of the application by the learned trial judge was like visiting the sin of the court on the litigant. This should not be allowed. The action of the learned trial judge has led to a grave miscarriage of justice. The striking out of the motion was therefore inappropriate. That order of striking out of the motion by the lower court is hereby set aside. The court below, having decided on the two grounds in support of the reliefs sought, turned round to strike out the motion. He was only short of saying that the application was refused. As I said, this case was instituted in 1977 about 36 years ago and not even one witness has been taken. The first option is for me to send this matter back for the learned trial judge to conclude whether or not the application is granted but having in his ruling held that the appellants were properly served and that the name Christopher Oparanozie was not part of his record, one can only guess what would be his final decision. However in view of the age of this case, it will amount to a further delay if this matter is sent back to the court below to be determined. I shall, in view of the fact that all the facts and documents necessary for the determination of the motion are in the record of appeal, invoke the power of this court under Section 15 of the Court of Appeal Act and determine the application.
I have already held that there was no service or proper service on the Appellants for the motion which relisted Suit No. HOW/170/77 which was struck out five years earlier and I have also held, even as the lower court found, that a party who was not part of the process from the beginning surfaced on the Ruling of the learned trial judge when the order for relistment was made. These two grounds were enough for the court below to have set aside the said Ruling. It is trite that a judge is not as a matter of course permitted to set aside his judgment which he has made. The reason is that he has become functus officio. A glaring exception to the above principle of law is perhaps the power to set aside a judgment given in the absence of a party which power can be exercised by any judge of the High Court or even the judge who delivered the said judgment. See CHRISTOPHER EMORDI & Ors v. AKUNNIA RIGHT KWENTOH & ORS (1996) 2 NWLR (Pt. 433) 655; WIMPEY LTD v. BALOGUN (1936) 3 NWLR (Pt. 128) 324; OMOREGBE v. PENDAR LAWANI (1930) 3-4 SC 108; WILLOUGHBY v. I.M.B LTD (1987) 1 NWLR (Pt. 48) 105.

I held earlier that the Ruling of the lower court relisting the said suit was a nullity ab initio the Appellants herein having not been served with the motion and hearing notice. As was held by the Supreme Court in OKAFOR & ORS v. COMMISSIONER FOR JUSTICE ANAMBRA STATE & ORS (1991) 6 NWLR (Pt. 200) 65, it is appropriate in such a situation and in the inherent jurisdiction of the court to set aside the decision in the interest of justice. This jurisdiction has always been exercised in many cases where the court has given judgment in default. See CRAIG v. KANSEN (1943) 1 All ER 111; OBIMONURE v. ERINOSHO (1966) 1 All NLR 250; OGBU v. URUM (1984) 4 SC 1; NWOGU v. UDEAJA (1990) 1 NWLR (Pt. 125) 188.
I am of a well considered opinion that this is a proper circumstance which the power of the court to set aside its judgment or Ruling ought to be exercised in favour of the Applicants/Appellants. Accordingly, the two issues submitted for the determination of this appeal are resolved in favour of the Appellants. The Ruling of the learned trial judge which struck out the motion of the Appellants filed on 28/10/09 which said Ruling was made on 27/9/10 is hereby set aside.
In the circumstance therefore, the motion of the appellants filed at the lower court on 28/10/09 is hereby granted. The order of the lower court relisting Suit No. HOW/170/77 is hereby set aside. I shall make no order as to costs.

PHILOMENA MBUA EKPE, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother JOHN I. OKORO, JCA. My noble Lord has exhaustively considered and treated all the issues in this appeal. I am in total accord with his judgment. In the result, the motion filed at the lower court on 28-10-09 is hereby granted. The order of the lower court relisting Suit NO. HOW/170/77 is hereby set aside. I abide by my Lord’s order as to costs.

HARUNA SIMON TSAMMANI, J.C.A: I had the privilege of reading in advance the judgment delivered by my Learned brother, JOHN I. OKORO; JCA.
My Learned brother had exhaustively considered and resolved the issues that arose for determination in this appeal. I agree with his reasoning and conclusions thereon. I have nothing else useful to add. Accordingly, I hereby set aside the order of the Court below relisting Suit No HOW/170/77.
I abide by the order on costs.

Appearances

C. C. Okoroafor Esq. with T. E. Nwokedi Esq., and K. O. Ahamba Esq.For Appellant

AND

E. C. Anyiam (Mrs.)For Respondent