DANIEL IHIBE OMEDE v. UNION BANK OF NIGERIA PLC (2013)

DANIEL IHIBE OMEDE v. UNION BANK OF NIGERIA PLC

(2013)LCN/6678(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of December, 2013

CA/J/119M/2013

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

DANIEL IHIBE OMEDE Appellant(s)

AND

UNION BANK OF NIGERIA PLC Respondent(s)

RATIO

WHETHER OR NOT A LEGAL PRACTITIONER CAN SIGN COURT PROCESSES

As a follow up question to the one asked and answered supra is whether as a human being Noel Thomas is capable of signing a process like the one we have in question.
In the case of First Bank plc and 1 Or. Vs. Dawa supra, it is crystal clear that, a legal practitioner who is a human being is quite capable of signing a process.
In the case of Alhaji Fatai Ayodele Alawiye vs. Mrs. Elizabeth Adetokunbo Ogunsanya (2013) 5 NWLR (Part 1348) page 570 at 583 it was held by the apex Court that:
“A law firm is not a legal person. All processes filed in Court are to be signed as follows:
a) The signature of counsel, which may be any contraption,
b) The name of counsel clearly written,
c) The party counsel represents,
d) Name and address of law firm.”
Please see also the case of SLB Consortium Limited vs. Nigerian National Petroleum Corporation (2011) 9 NWLR (Part 1252) page 317 at pages 337 – 338. PER ABDULLAHI, J.C.A.

THE FUNDAMENTAL RIGHT TO FAIR HEARING

The next issue for determination is whether the application is grantable. In considering this application, my first port of call is Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 which reads thus:
“36 – (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
It is crystal clear from the Records of this Court that on 9th April, 2013 when the appeal of the Appellant was dismissed, the Appellant and his counsel were not in Court because they were not served with a hearing notice against that day’s proceedings. This being the case, the question that must be asked and answered is whether the Appellant/Applicant’s right to fair hearing as enshrined in Section 36(1) of the Constitution of Nigeria 1999 had not been breached. This question must be answered in the affirmative because hearing notice, is a process of Court and its issuance in the light of the provision of Section 36(1) of the said Constitution cannot be over emphasized.
Hearing notice is a process of Court and its issuance is predicated on the provision of Section 36(1) of the 1999 Constitution which guarantees the right to fair hearing. It is also in line with the well principle of natural justice which requires the other party to be heard. (audi alterem patem) and the failure to notify a party of the date his matter comes up is a fundamental defect which goes to the root of the entire proceedings. In the case of A.C.B. Plc vs. LOSADA (Nig) Ltd (1995) 7 NWLR (Part 405) 26 at 48 paragraph B, the Supreme Court cited with approval, the dictum of Lord Green M.R in the case of Craig vs. Kanssen (1943) K.B 256 and held that:
“It is beyond question that failure to serve process where service is required goes to the root of our conception of the proper procedure in litigation. Apart from proper exparte proceedings, the idea that an order can validly be made against a man who has no notification of any intention to apply for it is one which has never been adopted in this country. To say that an order of that kind is to be treated as a mere irregularity and not something which is affected by a fundamental vice is an argument which, in my opinion, cannot be sustained”. PER ABDULLAHI, J.C.A.

TIJJANI ABDULLAHI, J.C.A.(Delivering the Lead Ruling): The application for our consideration is by way of Motion on Notice brought pursuant to Order 7 Rule (1), Order 20 Rules (2) and 3(1) of the Court of Appeal Rules 2011, Section 15 of the Court of Appeal Act, 2011 (now Section 16 of the Court of Appeal Act, 2011) and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The application is supported by a 4 paragraph Affidavit and a Further and Better Affidavit of 4 paragraphs also paragraph 3 of the Supporting Affidavit has sub-paragraphs A-0 whilst paragraph 3 of the Further and Better Affidavit has six sub-paragraphs. Three Exhibits are also annexed to the application in support.

The application is praying for the following orders:
“1. An order of this Honourable court setting aside its order of 9th April, 2013 dismissing the Appellant/Applicant’s appeal.
2. An order of this Honourable court re-listing the Appellant/Applicant’s appeal.
3. And for such further or other orders this Honourable court deems fit to make in the circumstances”.

The application is predicated on five grounds and they are:
“GROUNDS OF THE APPLICATION
(1) The Appellant/Applicant’s appeal was dismissed on 9th April, 2013 for lack of diligent prosecution and he desires it relisted to enable him prosecute same.
(2) That when the Appeal came up on the 9th of April 2013, the Appellant/Applicant was not served with hearing notice notifying him that the appeal will come up on the said date.
(3) The Appellant/Applicant had filed his motion for extension of time and brief of argument before it was discovered that the appeal had been dismissed in his absence.
(4) The Appellant/Applicant was not given fair hearing when the court dismissed the appeal.
(5) The Appellant/Applicant desires to prosecute his appeal on the merit.”

It is instructive to note that when the application was served on the Respondent, they opposed it and filed a counter-affidavit consisting of 12 paragraphs.
On the 19/11/2013, when the application came before us for hearing learned Counsel for the parties adopted their written addresses which had been earlier on ordered by the Court on 26/6/13. However before they did that, each Counsel placed reliance on the contents of the Affidavits, they placed reliance in support of their respective positions.

Learned Counsel for the Appellant/Applicant Mr. N. T. Azai after the adoption of his written address filed on 3/7/2013, placed further reliance on the case of Nwora vs. Nwbueze (2013) NWLR (Part 1379) page 1 at page 26 paragraphs A-B and urged us to grant his application as prayed.
For his part, learned Counsel for the Respondent, Mr. Leo Ebi, after adopting his written address attached to his counter-affidavit which both documents were filed on 19/7/2013 as his submissions in the application, urged us to dismiss it for lacking in merit.

It is pertinent at this juncture, to pause and say that since the averments of the Affidavits both in support and in opposition are not unwieldy, I reproduce them hereunder. I would also like to add that references will be made to some of the averments contained therein in the course of writing the extant Ruling in the application aforementioned supra. The contents of the supporting Affidavit and the further and better affidavit are as follows:
“1. That I am the Litigation clerk II with the firm of Abdullahi Haruna & Co. and by virtue of this fact I am conversant with facts deposed herein.
2. That I have the consent of both my employers and the Appellant/Applicant to depose to this affidavit
3. That I was informed by Abdullahi Haruna Esq. counsel handling this matter at our office at Bank of Industry Building, Suit, 101, First Floor, No. 18 Muhammadu Buhari Way on the 13th day of May, 2011 at about 11:30am, which information I verily believe to be true as follows:
a. That on the 28th April, 2010 the Appellant/Applicant filed this appeal against the judgment of the High Court of Plateau State in Jos which was given on the 3rd day of April, 2010, dismissing his claims.
b. That after the appeal was filed the Appellant/Applicant had difficulty transmitting the record of appeal to this Honourable court. Following which he filed an application for extension of time to transmit the record of appeal dated 1st November, 2010 and properly filed on the 9th November, 2010.
c. That the application was moved on the 9th Feb. 2011 and granted with time extended for the records to be transmitted.
d. That after the records were transmitted, Abdullahi Haruna Esq. counsel handling the matter took ill and travelled for treatment abroad and forgot to leave the file with any of the counsel in the firm to handle the matter.
e. That upon his return, he realized his mistake and prepared the application for extension of time as well as the brief of argument, but travelled again to Lichtenstein with the mistaken belief that he had given the processes for filing only to discover on his return that the manuscript was misplaced.
f. That at the time he discovered that the processes had not been filed, the time for filing same had since elapsed.
g. That the Appellant’s brief of argument and application for extension of time were prepared dated the 14th day of April, 2013.
h. That the brief of argument was filed on the same 14th May 2013 while waiting for the court’s clerks to locate the case file to enable them compute the default fee for payment, A copy of the brief of argument, motion for extension of time and payment receipt are hereto affixed and marked as Exhibits “A”, “A1” and “A2″ respectively.
i. That by the time the case file was located, the staff of the court discovered that appeal had been dismissed on the 9th of April, 2013.
j. That on the said 9th of April, 2013 when this appeal came up for hearing, the Appellant/Applicant’s counsel was not in court because he was not served with a hearing notice as a result of which no appearance was entered for the Appellant/Applicant.
k. That the Appellant/Applicant intends to prosecute this appeal and has taken steps by filing his Appellant’s brief of argument.
l. That the failure to file the brief of argument within time was not intentional but due to inadvertence of counsel and not that of the Appellant/Applicant.
m. That grant of this application will not in any way prejudice the case of the Respondent.
n. That it is in the interest of justice to grant this application.
o. That the Appellant/Applicant undertakes to file brief of argument once the Appeal is relisted.”

FURTHER AND BETTER AFFIDAVIT
“1. That I am the litigation clerk in the firm of Abdullahi Haruna & Co.
2. That I have the consent of the Applicant and my employers to depose to this affidavit.
3. That I was informed by Noel Thomas Azai, counsel handling this matter at our office at No. 18, Muhammadu Buhari Way, Kaduna, on the 26th June, 2013, at about 3.00pm, which Information I verily believe as follows:
a. That paragraphs 6, 8, 9, 10 and 11 of the Counter-affidavit are not true.
b. That this Honourable Court is not functus officio to grant the applicant’s application.
c. That while counsel for the Respondent was on notice of proceeding of the April, 2013 wherein he applied for the dismissal of Appellant’s appeal, the Applicant was not notified in any way of the proceeding of 4th April, 2013.
d. That by the enrolled order of this Honourable Court, which is annexed hereto and marked as Exhibit ‘A’, absence of the Applicant or his counsel in Court was the reason for the dismissal of the appeal which absence was due solely to non-service of hearing notice on either of them.
e. That the Respondent will not be prejudiced by the grant of this application.
f. That it is in the interest of justice to grant this application.”

The paragraphs of the counter-affidavit are also reproduced below:
“1. That I am a Legal practitioner in the Law firm of Messrs Leo M. Ebi & Co., Solicitor to the Respondent by virtue whereof I am conversant with the facts hereinafter deposed to.
2. That the Appellants appeal was dismissed on 9/04/2013 for his failure to file the Appellant’s brief of argument within the time allowed/prescribed by the Rules of this Honourable Court.
3. That the Appellant was served with the Record of Appeal in this Appeal on 19/10/2010, while the Respondent was served on 9/11/2010 with it.
4. That by ORDER 18 Rule 2, the Appellant had 45 days from 19/10/2010 to file his brief of argument.
5. That between 19/10/2010, to 9/04/2013 when this appeal was dismissed, a period of over two (2) years and five (5) months had lapsed.
6. That the appearance of the Appellant in Court on 9/04/2013 would have been of no moment.
7. That before the appeal was dismissed on 9/04/2013, there was no order extending time for the filing of the said brief.
8. That the Appellant was/has been afforded a fair hearing in this appeal.
9. That a grant of this application would prejudice the respondent whose counter claim in the lower court was sustained.
10. That this Honourable court is functus officio to grant this application.
11. That paragraphs 3d-f, j, k, l, m, n, o, and 4 of the supporting affidavit to the motion are untrue.
12. That I depose to this Counter Affidavit in good faith verily believing it content to be true and in accordance with the Oaths Act 2004.”

It is instructive to note before delving into the written addresses of Counsel that Exhibit “A” attached to the motion papers is the Appellant’s brief whilst Exhibit “A2” is the receipt of payment made on the 14/5/2013 for filing of the said brief.

The facts of the case as can be gleaned from the records of the Court are that: That Applicant who was the Plaintiff at the trial Court filed a suit against the Respondent who was the Defendant at the lower Court, precisely at the High Court of Justice, Plateau State, the trial Court found in favour of the Respondent and dismissed the Applicant’s claim which led to the filing of Appeal No. CA/J/322/2010. Due to the inability of the trial Court’s registry to transmit the Record of Proceedings within time, an application for extension of time within which to transmit the Record of Proceedings was moved and granted on the 9th of February, 2011.
On the day the appeal was dismissed, the 9th of April, 2013, it was clearly stated in the Record of this Court that Appellant/Applicant and Counsel were absent but not served. Oral application was moved for the dismissal of the appeal and the Court in its wisdom inter-alia held that:
“.. For the reasons given, this court is of the opinion that the Appellant has abandoned the appeal. Therefore, pursuant to order 1B Rule 10(1), 1st leg, this appeal No.CA/J/322/2010 is hereby dismissed for want of diligent prosecution.”

Aggrieved by the Ruling reproduced supra, learned Counsel filed the extant application and prayed for the reliefs set out supra.
Learned Counsel for the Applicant identified two issues for determination in this application and he stated them as follows:
“(a) Whether dismissing Appeal No.CA/J/322/10 upon an oral application of Respondent’s Counsel and without puffing the Appellant/Applicant on notice of either the said application or proceeding of the April, 2013 is not a breach of the Applicant’s right to fair hearing?
(b) Whether this Honourable Court can in the circumstances set aside its order of 4th April, 2013 dismissing the Applicant’s appeal?”
On the other hand, Counsel for the Respondent, also formulated two issues for determination to wit:
“(1) Whether the Application as constituted is competent and valid.
(2) Whether the Application is grantable.”

On issue No. 1, learned Counsel submitted that it is trite that a Court of law is competent to adjudicate a matter when among other conditions, the subject matter of the suit is competently before the Court and when the action is initiated by due process of law. FBN plc vs. T.S.A. Ind. Ltd (2010) 15 NWLR (Part 1216) 247 at 273 paragraph H. where however, either of these conditions is absent in the procedure leading to any action taken by the Court in any proceedings, such proceeding will be deemed a nullity and all actions taken, decisions entered or orders, made will also be a nullity by virtue of the Court’s lack of competence ab-initio.

It was submitted that when the matter came for up for hearing, neither the Appellant nor his Counsel were in Court because hearing notice was not served on them. However, for reasons unexplainable the appeal was dismissed following an oral application for its dismissal by learned Counsel for the Respondent. Learned Counsel posed the question as to whether it can be said that the Respondent’s Counsel has made a competent application to warrant the order of the 9th April, 2013 without the Appellant/Applicant being on notice of the day’s proceedings.

Learned Counsel urged us to answer the question in the negative because, hearing notice is a process of Court and its issuance is based on the provision of Section 36(1) of the 1999 Constitution which guarantee the right to fair hearing, Learned Counsel, further submitted that, it is also in line with the principle of natural justice which requires the other party to be heard (audi altarem patem) and the failure to notify a party of the date his matter comes up is a fundamental defect which goes to the root of the entire proceedings.
It is the submission of the learned Counsel that the absence of the Applicant on the 9th April, 2013 was not deliberate, it was due to non-service of hearing notice. Learned Counsel further submitted that it goes without saying that whether the appeal was dismissed for lack of filing Briefs of Argument or non appearance of Counsel in Court, the entire proceeding is a nullity. The Supreme Court has held that non-service of process affects the jurisdiction of a Court in respect of any matter. He relied on the case of FBN plc vs. T.S.A. Ind. Ltd (supra).
Learned Counsel urged us to hold that the proceedings of 9th April, 2013 was conducted without Notice to the Applicant of either the proceeding of the day or the application for dismissal. This being the case, learned Counsel went on, the proceeding of the said date and the order of dismissal of the Appellant’s appeal are made null and void for want of compliance with Section 36(1) of the 1999 Constitution as amended and the Rules of this Court, 2011 relating to service.
Learned Counsel, in the light of the foregoing, urged us to resolve this issue in their favour.

On issue No. 2, learned Counsel submitted that the law is trite that once a Court of law has entered a judgment on the merit, it cannot revisit such judgment again as that will amount to it sitting on appeal against its own decision. However, in circumstances where a Court reached its decision due to default of appearance or where the decision is a nullity for lack of competence, such a Court is in as good a position as an appellate Court to set aside the order and hear the matter on the merit.

It was submitted that the rules governing proceeding in the Court of Appeal by virtue of order 20 Rule 5(1), of the court of Appeal, Rules, 2011, is no longer as brutal as it used to be under the 1981 rules because this rule provides a lee-way for orders dismissing appeals to be set aside. The order states as follows:
Or. 20 R. 5(1) “An application to strike out or set aside for non compliance with these Rules, or any other irregularity arising from the Rules of practice and procedure in this Court any proceedings or any document judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
Learned counsel holds the view that by virtue of the provision of the Rules of this Court, reproduced above, this Court has unfettered discretion to set aside its proceedings, any judgment or order for the purpose of determining the real question in controversy between the parties in an appeal. He urged us to do so in this appeal and resolve the issue in favour of the Applicant.

Learned Counsel for the Respondent as I have earlier stated in the course of this Ruling also identified two issues for determination which have been reproduced supra.

In arguing the first issue which is whether the Application as constituted is competent and valid. Learned Counsel contended that the Application herein presently constituted is not valid in law in that it was filed and/or signed for a non legal practitioner, “Abdullahi Haruna and Co.” subscribed as the Solicitor to the Appellant/Applicant.

Learned Counsel further contended that the judicial attitude of this Court, as well as the apex Court have been that for a Court process to be valid and competent, the act of signing of the said process must be the act of duty performed as contemplated and/or required by the effect of the combined/provisions of the Section 2(1) & 24 of the Legal Practitioners Act, Cap 111, Laws of the Federation of Nigeria 2004. Learned Counsel apart from reliance on the statutory provisions, also place reliance on the cases of First Bank of Nigeria Plc and 1 Or. Vs. Alhaji Salmanu Maiwada (2013) 5 NWLR (Part 1348) page 441 at 449 paragraphs F-G, Alh. Fatai Ayodele Alawiye vs. Elizabeth Ogunsanya (2013) 5 NWLR (Part 1348) page 570 at 611-618 and SLB Consortium Limited vs. Nigerian National Petroleum Corporation (2011) 9 NWLR (Part 1252) page 3L7 at pages 337-338 to buttress his submission on this point.

Learned Counsel urged us to resolve this issue in favor of the Respondent in the light of the decisions in the cases cited supra.

The 2nd issue for determination identified by the Respondent’s Counsel is whether the application is grantable. Learned Counsel contended that the application herein is seeking the Court’s discretion and indulgence in respect of a subject matter the Court is clearly without jurisdiction and competence to accede to,for undoubtedly the Court is functus officio, learned Counsel stressed.

Learned Counsel after restating the delay encountered in the prosecution of the appeal contended that between 20/10/2010 to 09/04/2013, when the appeal was dismissed pursuant to Order 18 Rule 10 of the Rules of the Court, a period of two years, and five months had lapsed. He went on to further contend that the Applicant failed, refused and/or neglected to either file his brief of argument or to file an extension of time within which to do so, before the appeal was dismissed.

Learned Counsel made the point that failure to comply with the clear and mandatory provision of the rule of Court is not only painful but fatal to an Appellant caught on the wrong side of the provision. The Courts, both the Supreme Court and this Court have been consistent in their views that failure to comply with its clear and mandatory provisions attracts a sanction of dismissal even where this Court strikes out instead of dismissing the Appeal.

It was submitted that the appellate jurisdiction of this Court as provided under Section 240 of the Constitution, 1999 as amended, does not accommodate the entertainment and granting of this application as prayed since it would involve/require the Court to sit on appeal over its decision of 09/04/2013.
It was submitted that whether the decision of the Court made on 9/04/2013 was right or wrong, however defective ex-facie, the said order, assuming (but not conceded) was wrongly decided, this Court cannot competently re-enter nor re-hear the appeal, except the Supreme Court of Nigeria in its appellate jurisdiction. He relied on the cases of First Bank of Nigeria Plc vs. T.S.A. Industries Limited (2010) 15 NWLR (Part 1216) page 247 at pages 295 296, paragraphs, G-C; 307; paragraphs A-C; Kraus Thompson Organisation vs. National Institute for Policy and Strategic Studies (NIPSS) (2003) 17 NWLR (Part 901) page 44 at 58 – 59.

On the right to fair hearing, learned Counsel submitted that the Applicant was not denied of the right to fair hearing. For this submission, learned Counsel referred us to First Bank of Nigeria Plc’s appeal supra, per Adekeye, J.S.C. at 299 – 300 paragraphs G, A-C, FBN Plc vs. T.S.A. Ind. Ltd supra, as well as Order 7 Rule (1) of the Rules of this Court to buttress his submission. We are urged to resolve this issue in favour of the Respondent.

Now, before I delve into the consideration of the issues identified by the parties, let me tarry a while and state from the outset that any of the set of issues identified by the parties when adopted for consideration is capable of addressing the live issues that call for determination in this application. However, I am of the view that the issues identified by the Respondent are more precise and apt. I would therefore adopt them as the issues calling for determination in the application in hand.
Let me start with the first issue which is whether the application as constituted is competent and valid. Learned Counsel for the Respondent submitted quite copiously that the application is incompetent and not valid in law because it was filed and or signed for a non Legal Practitioner “Abdullahi Haruna and Co.”. In supporting this submission, as can be gleaned from the records, he placed reliance on the cases of First Bank of Nigeria Plc & Or. Vs. Maiwada supra and a host of other cases.
In the case of First Bank of Nigeria Plc and Or. Vs. Alhaji Salmanu Maiwada supra, at page 499, paragraphs F-G, the apex Court held thus:
“The Act or duty required to be performed by the provisions of the Legal Practitioners Act is that of signing relevant court processes, which can only be performed by a human being who is a legal practitioner duly registered under the Legal Practitioners Act; and not by a non-juristic person registered under Section 573(1) of the Companies and Allied Matters Act as a firm of legal practitioners to practice law under the Legal Practitioners Act, which does not possess the blessing of having human hands to hold a pen or any writing instrument to sign a court process”.
Again in the case of SLB Consortium Limited vs. Nigeria National Petroleum Corporation supra, the apex Court on the vexed issue of signing process or processes by a Legal Practitioner held that:
“A firm of solicitors is not competent to sign a process. In the instant case “Adewale Adesokan & Co” which signed the originating summons is not a legal practitioner known to the applicable legal practitioner Act, cap 207 of the Laws of the Federation 1990….’

It is pertinent at this juncture to point out that it would not be out of place, having stated the law and all that on this vexed issue to closely examine the Motion on Notice filed by the Applicant with a view to finding out if same is incompetent and invalid as copiously submitted by the learned Counsel for the Respondent.
The motion as can be seen from the application is signed by one Mr. Noel Thomas of Abdullahi Haruna and Co, Appellant’s Counsel of suite 101, 1st Floor, Bank of Industry Building, 18, Muhammadu Buhari way, Kaduna. Now, the question that must be asked and answered is whether Mr. Noel Thomas whose signature appeared on the motion paper is a human being. The answer to this question must be answered in the affirmative.

A cursory look at the application in question will reveal the fact that same has met the requirements of a competent and valid process as outlined in the decision of the apex Court reproduced above for the following reasons:
(1) It is signed by a legal practitioner who is a human being.
(2) The name of the Counsel is clearly written.
(3) The party the Counsel represents.
(4) Name and address of law firm is also provided.
That aside in paragraph 3 of the supporting affidavit, it is averred thus:
“That I was informed by Abdullahi Haruna Esq. counsel handling this matter at our office at Bank of Industry Building, Suite 101, First Floor, No 18 Muhammadu Buhari Way, on the 13th day of May, 2013, at about 11.30am, which information I verily believe to be true as follows:”

The above averment, weighty as it is had not be denied by the Respondent. The argument canvassed by the learned Counsel for the Respondent that the situation would have been different, if Noel Thomad Azai Esq. was signed on behalf of Noel Thomas Azai and Co, as solicitor to the Appellant/Applicant is neither here nor there. I am of the firm view that a human being, who is a legal practitioner can competently sign the process as was signed by Noel Thomas who most probably is practicing under the law firm of Abdullahi Haruna and Co.

I am also of the firm view that the cases cited by the learned Counsel in support of his submission on this issue are not apposite with the facts of the case in hand. In those cases the signatures on those applications are not that of human persons but that of the law firms which is not the case with the application under consideration.
In the light of all that has been said, I find no difficulty in finding that the application under consideration is competent and valid. This issue is resolved against the Respondent in favour of the Applicant.

In the case of A.C.B. Plc vs. LOSADA (Nig) Ltd (1995) 7 NWLR (Part 405) 26 at 48 paragraph B, the Supreme Court cited with approval, the dictum of Lord Green M.R in the case of Craig vs. Kanssen (1943) K.B 256 and held that:
“It is beyond question that failure to serve process where service is required goes to the root of our conception of the proper procedure in litigation. Apart from proper exparte proceedings, the idea that an order can validly be made against a man who has no notification of any intention to apply for it is one which has never been adopted in this country. To say that an order of that kind is to be treated as a mere irregularity and not something which is affected by a fundamental vice is an argument which, in my opinion, cannot be sustained”.

Again, in the case of FBN Plc vs. T.S.A. Ind. Ltd. (supra) at page 303, paragraphs B-D, our erudite Emeritus Justice of the Apex Court Adekeye J.S.C held that:
“The essence of service of process on parties in a case is to enable them to appear to prosecute and defend the case and also to ensure the appearance of the parties and those of their respective counsel in court. These are fundamental conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over a case. This also accords with the principle of natural justice which postulates that both sides to a case must be heard. Consequently, failure to serve processes where service of process is required to be served renders any order made against the party not served with process null and void”- (Underling ours for emphasis)
Let me also say that the law is now settled beyond peradventure that proceedings conducted in a trial without due process being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice affecting the competence of the Court which sat over the matter.

Learned Counsel for the Respondent has made heavy weather of the fact that the decision of this Court dismissing the appeal on the 9/4/12 was final and the Applicant’s remedy lies on appeal to the Supreme Court. He placed reliance on the cases of First Bank of Nigeria Plc vs. T.S.A: Industries (supra) and that of Kraus Thompson Organisation vs. National Institute for Policy and Strategic Studies (NIPSS) (2004) 17 NWLR (part 901) page 44 at 58-59 to buttress his submission. However, with due respect to the learned Counsel the facts of those cases are not apposite with the facts of the case in hand for the following reasons:
(1) In the instant case there is an application for extension of time filed by the Appellant/Applicant to file the appellant’s brief out of time.
(2) The Appellant’s brief in respect of which an application to extend time for it to be filed was attached to the present application.
(3) That in those cases relied by the Applicant’s Counsel there were formal applications for the cases to be dismissed or struck out.
(4) In the extant case the application to strike out the case was made orally.
(5) order 18 rule 10(1) of the Rules of this court under which the appeal was dismissed contemplates of an application by way of motion on notice for the appeal to be dismissed pursuant to Order 7 Rule (1) of the same Rules.
In the light of all that has been said above, this issue like the previous one is resolved in favour of the Appellant/Applicant.

In conclusion, the two issues have been resolved in favour of the Appellant/Applicant the application succeeds and same is granted accordingly. Consequently the order of this Court dismissing the appeal, made on the 9th of April, 2013 is set aside. Appeal No.CA/J/322/10 is hereby re-listed for hearing. I made no order as to costs. Parties shall bear the costs of prosecuting/defending the application.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead Ruling just delivered by my learned brother Abdullahi, JCA. I fully agree with all his reasonings and conclusions. I too would allow and grant the application to set aside the order striking out appeal number CA/J/322/10 and to also restore same to the cause list. I would also not make any order for costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree.

Appearances

N. T. Azai Esq. for the Appellant/Applicant.For Appellant

AND

Leo Ebi Esq.For Respondent