DR. HARRY EZIM vs. O. C. MENAKAYA (2017)

DR. HARRY EZIM vs. O. C. MENAKAYA

(2017) LCN/4499(SC)

In the Supreme Court of Nigeria

Friday, May 12, 2017


Case Number: SC. 350/2007

 

JUSTICES:

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

EJEMBI EKO    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

 

Between

  1. HARRY EZIM
    (Suing through his Attorney-
    Arc. David Moh) Appellant(s)

AND

O.C. MENAKAYA  Respondent(s)

 

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Court of Appeal (lower Court) Enugu Judicial Division delivered on 10th July, 2007 which dismissed the judgment of the trial High Court of Justice, Enugu of 19th March, 2004.

BRIEF STATEMENT OF FACTS
By diverse instruments witnessed and/or attested to by beneficiaries and/or descents of one Mr. Gabriel E Okiy, Appellant become vested of the disputed land in this appeal. The property was originally known as Plot 1, Workshop Avenue Layout, Enugu, later re-designated as No 14, John Nwodo Close, Enugu/No. 9, John Nwodo close, Enugu; but presently known and described as No 25/27, John Nwodo Close, G.R.A. Enugu. The original owner, Mr. Gabriel E. O. Okiy (Okiy) (now deceased) was a native of Sapele in the present day Delta State and the said land was granted to him by the then Eastern State Government when he was serving at the Ministry of Agriculture, Eastern Nigeria. The grant was consummated by a building lease dated 6/2/61 registered as No 12 at Page 12 in Vol. 259 of the Lands Registry Office of Enugu

While alive,

 

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Okiy put the Respondent on the said land as a Caretaker and the Respondent remained so until 21/1/81 when Okiy died. Okiy left a will bequeathing the said property to his children. It was the Respondent through his son, Obi who introduced the said property to the Appellant and through the Respondent, the Appellant entered into the transaction with the children/descendants of Okiy.

Pursuant to the execution of the Power of Attorney and a Deed of Assignment dated 16th December, 1998 registered as No. 4 of Page 4 in Vol. 1454 of the Lands Registry Office at Enugu, the entire Property together with all the improvements thereon were transferred for value to the appellant by the beneficiaries/descendants of Okiy, to wit, Beke, Robo, Ebun and Oguniya. Despite the transfer of title and in spite of protestations by the appellant, the respondent remained on the land after the sale purporting to be making some changes thereon.

Hence, the appellant instituted a civil action against the respondent at the High Court of Justice, Enugu; appellant was the Plaintiff at the trial Court, while respondent was the defendant. The Writ of Summons and Statement of Claim are

 

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dated 30th June, 2001 but filed on 3rd July, 2001.

The appellant, as Plaintiff before the trial Court, claimed the following reliefs against the Respondent (then Defendant):-
i. AN ORDER for immediate possession of the entire property originally known as Plot 1 Workshop Avenue Layout (now 25/27 John Nwodo Close Enugu).
ii. N68,000.00 Mesnse Profits for the use and occupation of part of the same at the rate of N10,000.00 per month from 1st December, 1995- 31st June, 2001.
iii. Mense Profits at the same rate of N10,000.00 per month from 1st July until possession is given up.
iv. An injunction restraining the Defendant or his servants, agents and privies howsoever constituted from remaining on and/or resorting at anytime to any part of the said property without the express permission and/or authority of the plaintiff in writing.

After taking evidence from the parties and the exchange/adoption of written addresses by counsel, the learned trial judge in a considered judgment dated 10th July, 2007, granted all the reliefs claimed by the Plaintiff before it.

It is worthy of note that the respondent did not make any counter-claim

 

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praying that the land, the subject of the suit be declared as his. The said Respondent did not also make any counter-claim praying for the nullification of the Will of Mr. Okiy. Hence, the trial High Court in its finding came to the conclusion rightly that the matter before it was not a probate one and that nobody was challenging the validity or otherwise of the Will of Mr. Okiy

The Respondent herein was dissatisfied with the judgment of the trial Court and he filed notice of an appeal to the Court below on the 19/03/04. There were series of multiple applications filed before the lower Court and the appeal was eventually heard on the 22nd May, 2007. The lower Court gave judgment in favour of the Respondent herein on the 10th July, 2007.

The appellant herein was dissatisfied with the said judgment of the lower Court and filed his notice of appeal against same on the 19th September, 2007.

In compliance with the Rules of Court, parties filed their briefs of argument as follows:-
1) Amended Appellant’s Brief of Argument was settled by Olabode Olanipekun, Esq. and filed on the 5th January, 2016.
2) Amended Respondent’s Brief of Argument was

 

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settled by G. A. Okoh, Esq. and filed on 10th February, 2016.
3) Appellants Reply Brief of Argument was settled again by Olabode Olanipekun, Esq and filed on 9th March, 2016.

On the 20th February, 2017 when the appeal came up for hearing, counsel adopted their respective briefs of argument. On the one hand and on behalf of the appellant, his learned counsel Mr. Olabode Olanipekun, Esq. adopted and relied on their briefs of arguments and urged in favour of allowing the appeal. On the other hand however, G. A. Ekoh, Esq., the counsel representing the respondent found no merit in the appeal and submitted that it should be dismissed.

From the seventeen (17) grounds of appeal filed, the five issues distilled for determination on behalf of the appellant are as follows:-
1) Considering the non-service of the requisite and fundamental Court processes/hearing notices on the appellant by the lower Court, whether the lower Court is not bereft of jurisdiction to adjudicate on and determine the appeal before it, thus rendering its judgment of July 10, 2007 null and void – Grounds 1, 2, 3, 4 and 5.
2) Considering the fact that the lower Court

 

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was not seized of the documents tendered as Exhibits before the trial High Court, whether the lower Court was clothed with the jurisdiction to adjudicate on the appeal and make pronouncements on the Exhibits that were not before it- Ground 15.
3) Having regard to the fact that the salient findings by the trial High Court on Exhibits “Y1” and “Y2″ were neither appealed against nor impeached by the lower Court, whether the lower Court did not fall into grave error in using the said Exhibits to upturn the judgment of the trial High Court and vest title of the disputed land in the Respondent – Grounds 9, 10, 13, 14 and 16.
4) Whether or not the lower Court did not fall into very serious error in its aspersions on, castigations of and conclusions on the will of Mr. Okiy – Grounds 6, 8 and 12.
5) Having regard to the evidence on record on which the trial High Court based its unassailable judgment, coupled with the position of the law regarding the issues actually arising for determination based on the claim of the Plaintiff/Appellant, whether the lower Court did not fall into a grave error by upturning the judgment of the trial High Court and giving

 

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judgment for the Respondent – Grounds 7, 11 and 17.

Also on behalf of the respondent, five issues were distilled. While issues 1 and 2 are reproduction of those of the appellant, issues 3, 4 and 5 however are as follows:-
3) Whether the Appellant who was aware of the pendency of this appeal at the lower Court (Court of Appeal) and decided to stand by and watch can complain of breach of fair hearing.
4) Whether the lower Court (Court of Appeal) was right in setting aside the judgment of the trial Court.
5) Whether the issues formulated by the Respondent as Appellant at the lower Court (Court of Appeal) were not tied to the grounds of appeal filed by him or were at large and whether the issues do not relate to the judgment of the trial Court.

For the determination of this appeal, I see it appropriate to take the 1st issue raised by both the appellant and the respondent. The appellant in raising the issue has posed a very fundamental question wherein he said:-
Considering the non-service of the requisite and fundamental Court Processes/hearing notices on the Appellant by the lower Court, whether the lower Court is not bereft of

 

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jurisdiction to adjudicate on and determine the appeal before it, thus rendering its judgment of July 10, 2007 null and void.”

The central pivot of this issue is seeking to establish the following material facts as to whether the appellant was duly served with the notice of appeal, other processes filed by the respondent of the lower Court and also the hearing notices.

On behalf of the appellant, it is conceded by his counsel that J.H.C. Okolo, SAN appeared for the appellant herein, as Plaintiff before the trial High Court; that he concluded his Brief when judgment was given in favour of the appellant. The learned counsel conceded further that, while in a good number of situations, the same counsel would be briefed by the same parties to handle their appeals, it is not within the jurisdiction of any counsel that his brief continues from trial to appeal; that it is even unethical for counsel to so assume.

It is mandatory, learned counsel re-iterates that, apart from being briefed to continue with a particular appeal as counsel to a particular party, there must be service of that notice of appeal on that counsel, duly received by him and signed

 

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for. Counsel submits further that there is no shred of evidence on record that J.H.C. Okolo, SAN was either presented by the appellant as his counsel before the lower Court or that Okolo, SAN himself accepted service of the Notice of Appeal.

Throughout the entire record of proceedings, counsel submits, there is no proof of service of the Notice of Appeal on Okolo, SAN. He cites in buttress of his submission the provision of Order 2 Rule 6 of the Court of Appeal Rules, which states that, it is mandatory for the service of the Notice of Appeal on a Respondent to be personal.

The learned counsel, in confirmation of the absence of service, drew the Courts attention to the fact that records were not settled by parties in this case whereby the Respondent can argue that a record of Appeal was served either on the Appellant or J.H.C Okolo, SAN.

In further expatiation, the counsel related copiously to the two motions for substituted service on the appellant and also the one to file appellant’s Brief out of time which were both filed on the 20th June, 2005

The credibility of one, Counsel argues was thrown into question when regard is had to the

 

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exparte order made only on the 25th January, 2006 for substituted service that the respondent at every occasion, had seriously contradicted himself on this fundamental issue of service, thus revealing that no service was at all effected on the appellant.

Counsel, in buttress of his submission further, cited a number of decided authorities inclusive of:- Odunze v. Nwosu (2007) 5-6 SC 40 at 58-59 and First Bank of Nigeria Plc V. T.S A. Industries Ltd (200) 17 WRN 40 at 78.

Counsel submits further that, from the record of appeal before the Court, the evidence reveal that it was never compiled with by the High Court Registry.

On a critical examination of the application for departure from the Rules and the Court Order thereon, the appellant’s counsel related specifically to the Enrollment Order made by the lower Court on the 25th January, 2006 in the following terms-
The Appellants Brief and all other processes in this appeal are to be served on the Respondent by substituted means through his Attorney Architect David Moh whose address is No. 2, Idoha Street, Independence Layout, Enugu.

It is not on record, Counsel argues,

 

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that the Respondent went back to the lower Court to have a further substituted service permitted on the Appellant through Mrs. Mma Moh. A critical analysis was made by counsel of purported hearing notices of processes and affidavits of service on different and multiple addresses in respect of diverse appeal numbers.

A typical example is where the learned counsel sharply drew the Court’s attention to a purported hearing notice in respect of the judgment of the lower Court in Appeal No. CA/E/131M/04 which was purportedly effected on 27th June, 2007, but is without any specified date of judgment.
The hearing notice was also purportedly effected on His Sec without any name attached thereto.

It is submitted by counsel in continuation that, a perusal of the records of appeal/proceedings, as well as the purported hearing notices was to show that the proceedings before the lower Court were, and still remain a complete nullity; that the hearing notices attached, apart from contradicting themselves, tell lies against one another; that they all oscillate from half truth to absolute falsehood.

For purpose of driving home the point further,

 

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the learned counsel affirms that, none of the notices indicates what specific hearing was to take place; that the brief of argument was never served. The lower Court, counsel submits was in error when it made far reaching declarations that were not even in issue before it; that in making those declarations, the lower Court’s duty to hear the appellant assumed a higher threshold; that the lower Court assumed jurisdiction over an inconvenient appeal which suffers from the fundamental defect of non-service of originating process. See Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) 377 at 393.

The learned counsel, in the circumstance, is urging this Court to set aside the entire proceedings and all processes filed, as well as the judgment of the lower Court, for failure to serve the appellant as respondent before it, with the originating process.

The Counsel urges the Court to allow this appeal, set aside the decision of the lower Court and in its place, restore the judgment of the trial High Court. This, counsel affirms is predicated on the fact that the judgment of the lower Court is a nullity and/or was delivered without jurisdiction, having regard to the

 

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fact that appellant was flatly denied his fundamental and inalienable right to fair hearing.

In response to the 1st issue raised by the appellant, the respondents counsel submits that their notice of appeal to the lower Court was dated and filed on 19th March, 2004; that same was served on the appellant through the said address of service, he provided in his originating process i.e. his counsel’s address; that the said Notice and Grounds of Appeal were served on his counsel, J.H.C. Okolo, SAN & Co. 162B Zik Avenue, Uwani, Enugu. In addition, the learned counsel further confirmed that all other processes filed at the lower Court were also served on the appellant through his said counsel; that Order 3 Rule 6(2) of the Court of Appeal Rules 2002, under which this appeal was decided, allows the appellant to be served Notice and Grounds of appeal and other processes through his said address for service at the trial Court until the party involved or his counsel files his notice of change of his address for service. In this case, counsel argues, no such notice of change of his address for service was filed.

In further submission, the learned

 

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counsel restates that, with the combined effect of the provisions of Order 5 Rule 6(3) of the High Court Rules of Anambra State 1988 (Applicable to Enugu State) and Order 3 Rule 6(2). Order 1 Rule 3(4) and (5) also Order 3 Rule 7(4) of the Court of Appeal Rules 2002, service of Notice and Grounds of Appeal and other processes made on the address provided by the other party at the trial Court, until it is changed, is good and proper service.

The appellant, as plaintiff, counsel submits, in his testimony at the trial Court testified as PW1 and gave his address as No.4811 North Boulevard Bolan Road LA 70806 U.S.A. (page 28 of the record). In compliance with the provision of Order 5 Rule 6(3) of the High Court Rules of Anambra State 1988 (Applicable to Enugu State), the appellant provided his mandatory address for service within jurisdiction as care of his counsel as follows:-
J.H.C. Okolo SAN & Co.
PLAINTIFF’S COUNSEL
162B ZIK AVENUE ENUGU.”

The learned counsel submits that there is no evidence on record that the appellant has changed his address of service within jurisdiction up to this moment, as provided by Order 1, Rule 3(4)

 

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and (5) and Order 3 Rule 7(4) of the Court of Appeal Rules 2002. It is the contention of counsel therefore that the service of the said Notice and Grounds of Appeal on the appellant, who resides in the United States of America, through the stated foregoing address of service within jurisdiction, which was provided by him cannot be held as improper service of the Processes. Also that the allegation of the absence of fair hearing does not hold.

To buttress his submission further, the learned counsel cited a number of decided authorities as follows: INEC V. Musa (2003) 3 NWLR (Pt. 806) 72 at 195 – 196; Atoyebi V. Governor of Oyo State (1994) 5 SCNJ 62 at 84; Eke V. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 532; Jikantoro V. Dontoro (2004) All FWLR (Pt. 216) 390 at 414 – 475: Chief M.O.A. Agbaisi & Ors V. Ebikorgi (1997) 4 NWLR (Pt. 502) 630; Salami V. Oke (1987) 5 NWLR (Pt. 63) 1 at 9; Okike V. L.P.D.C. (2005) 15 NWLR (Pt. 949) 471 and Auto Import Export V. Adebayo (2005) 19 NWLR (Pt. 959) 44.

In the circumstance, counsel submits, that the appellant cannot therefore deny the fact that he was served the Notice of Appeal on 19th March, 2004, through

 

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his address for service provided in his originating process filed at the trial Court i.e. C/o J.H.C. Okolo, SAN, 162B ZIK AVENUE, ENUGU; that the Notice of Appeal was received by the Chambers Secretary, Mrs. Angelo Ozobu as shown in the certified true copy of the proof or affidavit of service attached to this brief as Annexure 1.

The counsel submits further that the subsequent service of the motion for departure and record on the Appellant’s Attorney, Arc. David Moh after the motion had been argued and granted is superfluous and did not vitiate or render the earlier service of the processes on the appellant, through his counsel, J H C Okolo SAN, incompetent. Counsel cites the case of Jikantoro v.  Dantoro (2004) All FWLR (Pt. 216) 390 at 415 in support.

It is submitted by learned counsel therefore that the service of the said processes and subsequent hearing notices served on the Appellants Attorney, Arc David Moh, a professional Architect by serving on his Secretary, Mrs Mma Moh is good service because this Court did not order that he, Arc David Moh be served personally

Furthermore, that service on a professional like Lawyers, Doctors, Architects,

 

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Surveyors etc through their office secretary is proper/good service. Counsel cites the case of A.G. Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575.

It is the submission of Counsel also that, with the appellant having given consistently, his address for service as care of his counsel, J.H.C. Okolo, SAN & Co. 162B Zik Avenue, Enugu since the commencement of this case at the trial Court till date, he cannot now resile from accepting or receiving the processes served through the said address or raise the issue of non-service or improper service of all the processes. Till this moment, counsel submits, the appellant has not changed his address for service or returned to the lower Court registry any of the processes served on him.

In the result therefore, the learned counsel for the respondent has urged this Court to dismiss this appeal for the following reasons:-
(a) The Appellant was duly served with the Notice and grounds of Appeal filed in respect of this appeal of the lower Court through the address for service within jurisdiction provided by him.
(b) The Appellant, who was aware of the pendency of this Appeal of the lower Court and

 

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decided to stand by and watch, cannot now complain of breach of fair hearing.
(c) The Appellant was given an ample opportunity to present his case but he refused to take advantage of same thereof.

In reply to the respondent’s counsel, the response on behalf of the appellant has centered on statements of facts contained at paragraphs 2.0  2.12 on pages 1 – 5 of the respondents brief which the appellant’s counsel argues are not only inaccurate, but on apparent attempt to obscure the thrust of this instant appeal.

The learned counsel graphically drew the Court’s attention to some obvious points which were amply argued by the appellant which the respondent has not responded to. The counsel urged that the appeal be allowed.

RESOLUTION OF THE ISSUE
The first issue relates squarely to the question of service of process. In other words, whether the appellant herein was duly served with the Notice of Appeal, other processes filed by the Respondent at the lower Court and the hearing notices.

On the one hand, while the appellant is vehemently protesting the total absence of any service of the processes and claim ignorance at the

 

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proceedings of the lower Court, the respondent on the other hand disagrees and holds that the appellant is only playing the ostrich.

The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity.
Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record.
As stringent as the procedures in Military Tribunals are, service of process is made fundamental and nothing can be done outside it. It is no wonder therefore that Rules

 

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of Court all over, make adequate and elaborate provisions for service of any initiating process in particular and other processes in general.
Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under Section 36 of the Constitution to have an initiating process or hearing notice in respect of any Proceedings served on him, such service or non-service, as the case may be goes to the root of the jurisdiction of the adjudicating Court. Put differently, a Court will not be clothed with jurisdiction to adjudicate on any matter if one of the parties has not been served with either the initiating process of the hearing notice for a particular day or proceedings. Section 122 of the Evidence Act 2011 (as amended) is very specific on the procedure followed by the Court in ensuring that adequate service is effected on all parties. In the absence of proper service, there can be no adjudication. It is the practice and the Court has made it a point of duty to satisfy itself on the question of service.                      I have carefully read and perused the record of proceedings of the lower Court in respect of

 

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this appeal. The nearest information I could get on the proceeding was at page 331, where the appellants counsel now respondent was in Court and he adopted their brief of argument. There was no information relating the respondent now appellant before us.
Also at page 335 of the record of appeal, their Lordships at the lower Court had this to say in the course of their judgment.
The respondent even though duly served with the appellants brief of argument and other Court processes in this appeal through the Respondents Attorney – Arc David Moh, he did not file the Respondents brief neither was he represented at the hearing.
It is hard, but true to say that none of the measures specified above, in ensuring service of process on the appellant, was taken before the lower Court embarked on adjudicating on the proceedings from which the appeal stemmed. This I say because, the record is meant to serve as guideline of all that transpired at the lower Court.
In other words, a close look at the Record of Appeal reveals clearly that at no point in time did it reflect that the Notice of Appeal from the trial High

 

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Court to the Court of Appeal, which is the initiating process, was ever served by the trial High Court Registry or the Respondent on the Appellant.
In a very recent unreported Appeal No. SC.660/2015- Ihedioha v. Okorocha delivered on 29th October, 2015, at pages 29-32 the decision of this Court, the foregoing principle was re-affirmed wherein it struck out the appeal before it for non-service of the notice of appeal in the following terms:-
The question which I wish to attempt an answer is whether the proven failure by the appellants to serve the named respondents the notice of appeal is a mere irregularity or whether it goes to the root of the appeal. Let me state categorically that although the Court is not a slave to its rules, it shall at all times ensure that its rules are obeyed.. the Court must draw a dichotomy between non-compliance arising from non-service of the Court process as opposed to and distinct from non-compliance arising from other procedural aberrations like non-endorsement of the Court process.
I must emphasize that service of process is an important

 

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aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Any breach of this principle renders proceedings a nullity Service of process, I must say is a fundamental issue and condition precedent before the Court can have competence to adjudicate.
I must say that the appellants made a serious blunder in this appeal by treating the issue of service of originating process with levity
This appeal was not commenced by due process of law as condition precedent to assumption of jurisdiction by the Court were absent. (Emphasis provided)
By analogy, the respondent in the appeal at hand who was the appellant at the lower Court ought to have known that the appellant herein was to be served personally and where that failed, the service ought to have been by substituted means by an order of Court sought and obtained.
The respondent had failed to comply with the rules of Court since the processes were not ex-parte proceedings. The

 

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failure to put the appellant on notice was fatal therefore to the respondents case.
It has been re-iterated by this Court in the case of Ihedioha v. Okorocha (unreported supra) that a Notice of Appeal, being an originating process, is fundamental to the jurisdiction of the Court and it must be served personally on the other party.
On the question of a Courts illegibility in assuming and exercising jurisdiction over matters brought before it, the conditions precedent are clearly specified as laid down in the celebrated case of Madukolu v Nkemdilim (1962) 2 SC NLR 341. The requirements include the fact that the case must come before the Court, initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
Again and on the fundamental institution of service of process, this Court, in the case of Sken Consult (Nigeria) Ltd & Anor V. Ukey (1981) 1 SC 6 at 26, unanimously held after reference made to the Madukolu’s case supra, and said:-
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance by the party

 

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or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
The absence of service forecloses foundation. See again the case of Macfoy V. UAC Ltd (1962) AC 152 where the absence of foundation denotes that:
“you cannot put something on nothing and expect it to stay there. It will collapse.
The provision of Order 2 Rule 6 of the Court of Appeal Rules, stipulates that it is mandatory for the service of the Notice of Appeal on a Respondent to be personal. The Rule states as follows:-
“Except as may be otherwise provided in these Rules or in other written law, no notice or other written communication in proceedings in the Court need be served personally except the notice of appeal.”

It is on record that the Respondents counsel at the lower Court did ask for a Departure from the Rules, by motion dated 1st September, 2004, so that he could submit the bundles of documents as the records for the hearing of his appeal at the lower Court. The consequential effect is that, where there is no record, there could

 

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not have been any Notice of Appeal incorporated therein.

It is intriguing also that the motion for substituted service on the appellant is contained at page 269 of the record. It was dated 20th June, 2005. Paragraphs 9 and 10 of the supporting affidavit prayed that all the processes be served on the appellant, through his Attorney, Arc. David Moh

Also at page 273 of the record is another motion dated 20th June, 2005, seeking an order to file appellants Brief out of time.

As rightly submitted by the learned counsel for the appellant, by filing both motions on the same date, it portrays that the one tells lies against the other. It is obvious also that the motion for substituted service is Ex-parte, while the one for extension of time purports to put the appellants address for service as c/o Arc. David Moh of No.2 Idoho Street, Independence layout, Enugu. This is interesting because in actual fact, the order for substituted service was not made until Wednesday, 25th January, 2006. This is evidenced clearly on the last page of the record of appeal wherein the Enrolment of the order Ex-parte is exhibited.

On a thorough perusal of

 

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the record of appeal before us, it beats ones imagination -that the respondent did set out to use three different addresses as the media used to serve his processes at the lower Court. In other words, in one breath, the respondent would state that the Notice of Appeal or some processes were served on J.H.C. Okolo, SAN, in another breath service was on Arc. David Moh and also in yet another breath on Mrs. Mma Moh.

In the case of Odunze V. Nwosu (2007) 5-6 SC 40 at 58-59 some fundamental pronouncements were made by this Court on the crucial nature of a Notice of Appeal and said thus:-
”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

 

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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.

As rightly observed and submitted by the learned counsel for the appellant, there is no affidavit of service to show that the Notice of Appeal was at anytime served on the appellant as

 

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respondent in the appeal before the lower Court or on anyone properly representing him through an order of Court. For example: Appendix AA1 confirms that, although the same was filed at the Enugu High Court Registry on 19/3/2004, it was never issued for service to any bailiff of that trial Court. A confirmation is the affidavit evidence filed subsequently at the lower Court on the application for departure from the Court Rules which shows that the record of appeal was never compiled by that High Court Registry.

On a critical examination of the application for Departure from the Rules and the Court order thereon, the following fact is very revealing and informative. In other words, the enrolment order which is contained at the last page at the record of appeal was made on 25th January, 2006 and it states thus:-
“The Appellants Brief and all other processes in this appeal are to be served on the Respondent by substituted means through his Attorney Architect David Moh whose address is No.2, Idoho Street Independence Layout, Enugu.

It was submitted rightly on behalf of the appellant that there is no evidence on record that the

 

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Respondent went back to the lower Court to have a further order of substituted service permitted on the appellant through one Mrs. Mma Moh.

On a careful rundown of the references made to the various processes issued for hearing, it is obvious that the purported services on the appellant were effected on multiple addresses at different times without notification of any formal change. Examples are where services were made on J.H.C. Okolo, SAN, 2B Zik Avenue, Enugu and Arc. David Moh, 2 Idoho Street Independence Layout, Enugu; services of hearing notices were also effected on two secretaries- Enma Osan and Mma Moh on behalf of J.H C. Okolo, SAN and Arc. David Moh respectively.

As revealed on the record of appeal/proceedings, as well as the purported hearing notices, it cannot be said with certainty that the appellant was served with any process in accordance with practice and procedure of the rules of Court. This is having regard to the order of the lower Court made for substituted service (reproduced earlier in the course of this judgment).

The lower Court, as rightly submitted also by the appellants counsel and with all respect, did not

 

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ensure compliance with its order before embarking on adjudicating on the appeal and giving its judgment. Also at no time did the lower Court direct that hearing notice should be effected on either “Mma Moh” or “His Sec” or “Him” or “Her” or on any unidentified personality, in substitution for the appellants Attorney:- “Architect David Moh-” There are a lot of contradictions in the hearing notices. There is nowhere specified on the record of appeal that the lower Court confirmed whether its order for substituted service was carried out as enrolled.

For the lower Court to have ruled that the appellant did not file any brief, without ensuring that any brief was served on him at all, that did not amount to putting the two parties on the same and fair balance of the scale of justice. It is the duty of the lower Court to ensure that all parties were, in the least, afforded an opportunity to be heard by being served with each and every process filed before or issued by it.
The clear implication of the foregoing, as rightly put forth by the appellants counsel, is that the lower Court assumed jurisdiction over an incompetent appeal which suffers

 

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from the fundamental defect of non-service of originating processes on the appellant as respondent before it. In the case of Kida V. Ogunmola under reference supra, at page 393, this Court held and said:-
“It is trite law, that after its issue a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, ——- — . Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obiomonure Vs. Erinosho (1966) 1 ALL NLR 250, Mbadinuju Vs. Ezuka (1994) 10 SCNJ 109. Sken Consult Vs. Ukey (1980) 1 SC 6, Adeigbe Vs. Kusimo (1965) NWLR 284.
Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See National

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Bank Vs. Guthrie (1993) 4 SCNJ 1 at 17…
In my view, the validity of the Originating Processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. —— — the failure to commence proceedings with a valid Writ of Summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.
It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the Proceedings as claimed by the learned trial judge.”
See also the case of Akpaduyo L. G. V. Edim (2003) 1 NWLR (Pt. 800) 23 at 27. Service ensures jurisdiction. Every other process filed in the absence of service of the originating process has nothing to stand on to say the least being countenanced by a Court of law. See the case of Miden Systems Ltd V. Effiong (2011) 2 NWLR (Pt. 1231) 354 at 366 wherein it was held that jurisdiction of a Court is properly invoked by service of the Court Process on the defendant. Service goes to the

 

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jurisdiction
Same principle was applied in the case of Ndasuko Vs Mohammed (2007) 2 WRN 178.
As rightly observed on behalf of the appellant therefore, by proceeding to file a purported brief of argument and several motions without service of the notice of appeal and records of appeal on the appellant, the respondent as appellant before the lower Court “built a castle in the air.” In other words, there was no foundation.
A Court of law cannot properly be said to be discharging its primary duty of dispensing justice evenly if it listens to one party only to a dispute in the absence of the other. See the case of INEC V. Nnaji (2004) 16 NWLR (Pt. 900) 473. See also Uwazurike & Ors V. A-G Federation (2007) 14 WRN 112; and Auto Import & Export V. Munguno (2003) 1 NWLR (Pt. 801) 221.
Also in the case of Mbadinuju v Ezuka (1994) 8 NWLR (Pt. 364) 535 at 554 this Court held that:-
where notice of any proceeding is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any other is given in his absence to have the order set aside on the ground that a condition precedent

 

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to the exercise of jurisdiction for the making of the order has not been fulfilled; such an order is regarded as a nullity.”

For all intents and purposes and on the totality of the said issue, I seek to say that the judgment of the lower Court in this appeal is a nullity and/or delivered without jurisdiction, having regard to the fact that the appellant was calculatedly denied his fundamental and inalienable right to fair hearing. In the absence of fair hearing, justice could not possibly have been done at the lower Court. The issue is resolved in favour of the appellant and it suffices to determine the entire appeal. The other issues are all discountenanced.

In the result, the justice of this case would only be met if the case is sent back to the Court of Appeal for the proper hearing of the appeal after parties are duly served with all the processes.

The appeal is allowed, while the judgment of the lower Court is set aside. The President, Court of Appeal should assign this appeal to a different panel, other than the one which heard the one herein, for expeditious hearing.

Appeal is allowed and hearing ordered before the Court of Appeal.

 

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There shall be no order as to costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother Ogunbiyi JSC just delivered. I agree entirely with the reasoning and conclusion in the lead judgment that being meritorious the appeal be allowed.

The facts that brought about the appeal are fully captured in the lead Judgment making reproduction of same unnecessary. The summary of the facts as rendered in the lead judgment informs the comment herein made purely for the sake of emphasis.

The appellant was not served the notice of appeal in respect of the appeal, the lower Court proceeded to hear and determine. His plea in this Court that the lower Court’s decision be set-aside as same arrived at without the necessary jurisdiction well taken.

Whenever an order or judgment made or entered against a defendant who claims and substantiates the claim that he is not served with the originating process, this Court insists that the order or judgment, being a nullity, be set-aside. The service of the originating process is a condition precedent to the exercise of any jurisdiction on the defendant.

 

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A Court’s proceedings where there is non service of the initiating process constitutes a manifest breach of Section 36 of the 1999 Constitution which makes it mandatory for the Court to hear the defendant before deciding any issue against him. The lower Court in proceeding against the appellant, who is not served with the initiating processes of the appeal, stands clear breach of the Constitution. The Court’s judgment suffers a fundamental defect and deserves, as rightly urged by learned appellant’s counsel, to be set-aside. See Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6, Mark v. Eze (2004) 5 NWLR (Pt 865) 54 and Estate of Late Chief Humphrey I. S. Disi V. Ecodril Nigeria Ltd & Ors (2016) LPELR-40438 (SC).

It is for the foregoing and more so the fuller reasons outlined in the lead judgment that I also allow the appeal, set-aside the null and void decision of the lower Court and abide by the consequential orders made in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, CLARA BATA OGUNBIYI, JSC just delivered. The issue in

 

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contention in this appeal has been adequately considered and ably resolved. 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 Eze (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

 

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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.

As rightly pointed out by learned counsel for the appellant, the record of appeal was compiled and transmitted to this Court by the appellant upon the grant of his application for a departure from the Court of Appeal Rules to enable him compile and transmit same, which was duly granted. Although the Notice of Appeal was filed on 19/3/04 the

 

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application for a departure from the rules to compile and transmit the record was filed six months later on 1/9/2004. I have scoured the record of appeal and I am unable to find any evidence that the Notice of Appeal was served on the appellant personally or through his legal practitioner.

By a motion ex-parte dated 20/6/2005 but filed on 22/6/2005 the respondent sought the following relief:
“An order of Court to serve the respondent the appellant’s brief of argument and other processes in this appeal by substituted means i.e. by serving the processes on the respondent’s attorney – Arc, David Moh whose address is No. 2 Idoha Street, Independence Layout Enugu.”

The application is at page 269 of the record. In Paragraphs 9 & 10 of the affidavit in support, it was averred as follows;
“9. That the respondent as plaintiff at the High Court Enugu brought to suit through his attorney, Arc. David Moh.
10. That if the processes are served on the said attorney, it will get to the knowledge or notice of the respondent.

Therefore, service of the processes on Arc, D. Moh was to bring the processes to the attention of the appellant and not

 

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that service of the processes on someone else was to bring the processes to the attention of Arc. D. Moh. The order for substituted service was granted as prayed on 25th January 2006. In Paragraph 4.11(i) – (x) of the appellants brief, learned counsel has endeavoured to identify various processes filed at the Court below and the endorsements of the affidavits of service in respect thereof (where available) to the effect that not only is there no evidence of service of the Notice of Appeal on the appellant, but contrary to the terms of the order for substituted service, processes such as hearing notices, motions and affidavits were purportedly served variously on Mrs. Mma Moh and an unnamed secretary of Arc. David Moh. He observed further that some of the processes purportedly served on Arc, Moh such as hearing notice in respect of upcoming applications, did not bear any date to indicate when the said applications would be coming up for hearing.

The argument on behalf of the appellant is that service of any process subsequent to the grant of the order for substituted service must be effected in strict compliance with the order. In other words,

 

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service must be effected on Arc. Moh and no other person.
A somewhat similar situation arose in a recent decision of this Court in: Emeka Vs Okoroafor (2017) LPELR  41738 (SC). The appellant therein obtained an order at the trial Court for substituted service of the originating process on all the respondents by delivering same to the 1st respondent whose address for service was given as Evangel House, Plot R8 Ozubulu Street, Independence Layout, Enugu. The order was granted as prayed. It transpired that rather than serve the processes on the 1st respondent personally and at the specified address in accordance with the order of the Court, the processes were dumped some blocks away from the 1st respondents residence in front of a neighbors gate. They were discovered by the occupant of the house where they were dumped and taken to the 1st respondent.
In the meantime, the bailiff of the Court deposed to an affidavit of service stating that the processes were served on the 1st respondent through his security guard, one Shedrack Lawson. It was held that once an order for substituted service is sought and obtained, in the absence of a

 

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subsequent order varying the earlier one, neither the applicant nor the bailiff of the Court has the discretion to effect service in any other manner or on any other person than as stated in the order. In the said judgment at pages 51 E – 53 A (supra), I stated thus:
“It is the usual practice when applying for substituted service to specify the manner in which service is to be effected, the person on whom it is to be effected and where. The applicant chooses the location where he believes the processes are most likely to come to the attention of the person to be served.
The order would be made in accordance with the request. Having sought and obtained such a specific order, it cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court.”
See also: Odutola Vs Kayode (supra) @ 19 – 20 G – A.
In the absence of evidence in the record of appeal showing that the appellant was served with the Notice of Appeal, which is the originating process, the lower Court lacked jurisdiction to entertain the appeal ab initio. The situation is compounded by failure to adhere

 

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strictly to the order for substituted service in effecting service of other processes in the appeal. The defect has thus rendered the entire proceedings a nullity. I resolve this issue in favour of the appellant and accordingly allow the appeal on this issue.

The judgment of the lower Court delivered on 10/7/2007 is hereby set aside. The appeal is remitted to the Court of Appeal for hearing before a differently constituted panel of that Court.

I make no order for costs.

EJEMBI EKO, J.S.C.: The facts of this case have been ably summarised in the judgment just delivered by my Learned brother, CLARA BATA OGUNBIYI, JSC. I had a privilege of reading the judgment before now. I hereby adopt it.

I will however comment briefly on the issue of service of processes as argued in the appeal. At all times material to this appeal, the Appellant was resident in the United States of America (USA), outside the jurisdiction of our Courts. The Appellant, as the plaintiff, instituted the suit at the High Court of Justice, sitting in Enugu.

He instituted the suit through his attorney, Arc. David Moh. His counsel was J.H.C. Okolo,

 

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SAN. All the Court processes, while the case was at the trial Court, were served on the Appellant through his counsel. That was the state of affairs until the trial High Court delivered judgment in the suit in favour of the Appellant, as the plaintiff.

The Respondent, as the defendant, aggrieved by the judgment of the trial Court, filed his notice of appeal against the said judgment on 19th March, 2004. The said appeal was governed by the Court of Appeal Rules, 2002, which then was extant. Order 3 Rule 6 (2) of the said Rules permitted the defendant, as the Appellant, to serve the Notice of Appeal on the plaintiff, as the respondent, in appeal at the address he had furnished at the trial Court, that is: c/o J.H.C. Okolo and Co., 162B ZIK Avenue, Enugu”.

The requirement of the Rules that the Notice of Appeal shall be served on the respondent will in the circumstance of this case, be satisfied if and when the said Notice of Appeal was served on the counsel retained by the respondent at the trial Court. At the lower Court there were difficulties getting the Appellant, as the respondent, to participate in the hearing of the appeal against him.

The

 

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real problem in this appeal that the respondent herein has to contend with is the manner the processes were served on the Appellant herein after the lower Court made order that all processes for service on the Appellant herein, as the respondent in the Lower Court, shall be served on Arc. David Moh, who actually was the attorney through whom the Appellant maintained his suit at the trial Court.
The order for substituted service was specific that the processes for service on this Appellant, as the respondent in that Court shall be served on the said Arc. David Moh, and that by such service the Appellant, as the respondent, shall have been deemed to have been duly served. Until set aside this order remains valid. Neither the parties nor the bailiffs are empowered to alter the said order of the Lower Court. It is trite that subsisting orders of Court, right or wrong, are meant lo be obeyed and carried out. See ROSSEK v. A.C.B LTD (1993) 8 NWLR (pt. 312) 382. Until the order for substituted service made by the Lower Court was varied or modified, the bailiffs have no discretion as to how the order for substituted service shall be carried out. None of the

 

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parties and the bailiffs or any other person are at liberty to disregard or disobey such lawful order of Court.
The bailiffs were by the order for substituted service, obligated as directed by the order, to serve Arc. David Moh all the processes, including hearing notices meant for service on the Appellant, on the respondent to enable him participate in the appeal. Since the order for substituted service did not authorise service of the processes meant for this Appellant as the respondent in the appeal at the Lower Court on either Mrs. Mma Moh, Secretary to Arc. David Moh, or any other person for that matter. It follows that the purported service of those processes including hearing notice, on those persons in violation of the express letters of the Court Order was a non-starter. The disobedience of the specific order for substituted service completely annuls the service made in such flagrant disobedience of such express Court Order. This much is admitted by the Respondent in Paragraph 3.16 – 3.19 of the Amended Respondents Brief.
The singular act of disobedience or insubordination to the subsisting order for substituted service of the

 

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processes on the Appellant, or the respondent at the Lower Court, vitiated all proceedings subsequent thereto, and consequent upon the said faulty or illegal service of the hearing notice and the other processes. The proceedings of the Lower Court following such faulty or illegal purported service of hearing notice on the Appellant, as the respondent, are all null and void. The proceedings, including the judgment of the Lower Court, being a nullity, the appropriate order to make is one of remission of the appeal to the Lower Court, differently constituted, to be heard de novo.

I shall therefore refrain from any comment on the live issues in the appeal, as doing so now shall prejudge the appeal before the new Panel of the Lower Court.

I allow the appeal and abide all orders made in the lead judgment of my learned brother, CLARA BATA OGUNBIYI, JSC.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the well considered judgment of my learned brother, Clara Bata Ogunbiyi, JSC, just delivered. I completely agree with the judgment. I will only add a few words of my own.

It is well established that

 

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failure to effect service of process where it is required renders the proceeding and judgment a nullity. See NEW NIGERIAN NEWSPAPERS vs OTEH (1992) 4 NWLR (Pt. 237) at 626 and JULIUS BERGER (NIG.) LTD VS FEMI (1993) 5 NWLR (Pt.295) 612.
In EBOH VS OGBU (1994) 5 NWLR (Pt.346) 703 at 715. This Court per Muntaka-Coomassie, JSC (as he then was) stated thus;
“It was essential for the motion to have been served since the Court has no jurisdiction over a person who has not been served unless he of course submits to jurisdiction.
The two lower Courts were therefore clearly right when they came to the conclusion that the motion for judgment was never served on the respondents and that the judgment obtained thereon was a nullity and ought to be set aside.
See SKEN CONSULT NIG. LTD VS UKEY (1981) 1 S.C. 6 UNITED NIGERIA PRESS LTD & ANOR vs ADEBANJO (1969) 1 ANLR 431”

In the case at hand, there is no affidavit of service to show that the Notice of Appeal was at anytime served on the appellant as respondent in the appeal before the lower Court or on anyone properly representing him through an Order of Court.

For the more detailed reasoning

 

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in the lead Judgment, I too allowed the appeal. The judgment of the lower Court is hereby set aside.

 

 

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Appearances

  1. OLABODE OLANIPEKUN with Aisha Aliyu (Mrs), Bolarinwa Awuyoolu, Vanessa Onyemanwa (Miss), Ugo Chukwu Nwosu-Iheme, Osemen Abiola Ibadin (Miss) and Opemipo Olorunferni. For Appellant

 

AND

  1. A. EKOH For Respondent