HON. EMEKA OKONJI v. HON. PETER ONWUSANYA & ORS
(2014)LCN/6805(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of January, 2014
CA/B/132/2011
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
HON. EMEKA OKONJI Appellant(s)
AND
1. HON. PETER ONWUSANYA
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER DELTA STATE
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
RATIO
WHETHER OR NOT A GROUND OF APPEAL WHICH HAS NO ISSUES FORMULATED IS DEEMED ABANDONED AND MUST BE STRUCK OUT
It is trite that where a ground of appeal has no issue formulated from it for consideration and determination, such a ground of appeal is deemed as abandoned and must be struck out. This is so, because the appellate court does not determine grounds of appeal, but issues formulated from the grounds of appeal. J.A. Aderegbigbe & Anor. V. Tiamiyu Abidoye (2009) 4 SCNJ 259. PER YAKUBU, J.C.A.
ENDORSEMENT ON ORIGINATING SUMMONS
Let me start with the issue of endorsement on the originating summons in question. Order 3 Rules 19 and 20 of the Federal High Court (Civil Procedure) Rules 2009, say:
“19. A plaintiff may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating process each to bear the same date as the initial process marked “CONCURRENT” and have stated on it the date of issue.
20. An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.” PER YAKUBU, J.C.A.
WHETHER OR NOT SERVICE OF ORIGINATING SUMMONS ON A DEFENDANT CONFERS JURISDICTION ON THE COURT TO ADJUDICATE OVER THE CASE
The law is well settled beyond controversy, that where the rules of court provides that writs of summons or originating summons be personally served on the defendant, failure to do so, is not a mere irregularity but a fundamental vice which goes to the root of the action and any judgment or order obtained thereon, is a nullity and ought to be set aside. This is because, service of an originating process on a defendant is what brings him to the court and then confers jurisdiction on the court to adjudicate over the case. African Continental Bank Plc. V. LOSADA Nig. Ltd (1995) 7 NWLR (pt. 405) 25 (SC).
The Supreme Court in kalu Mark & Anor. V. Gabriel Eke (2004) 5 NWLR (pt. 865) 54, per his Lordship – Musdapher, JSC (as he then was) re-stated the law that:
“When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants prove non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice audi alterem partem will be breached.”
Further see: Auto Import Export V. Adebayo (2000) 18 NWLR (pt. 799) 554; S.G.B.N V. Adewunmi (2003) 10 Ezuka (1994) 8 NWLR (Pt. 364) 535. So, a failure to properly serve an originating process is a fundamental vice and deprives the court of the necessary competence and jurisdiction to hear and determine the suit. Mohammed Kida V. A.D. Ogunnola (2006) Vol. 8 MJSC. 1. PER YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant and the 1st respondent, along with six other candidates, participated in the primary election of the 4th respondent, in order to determine who amongst them would flag the banner of the 4th respondent for the 16th April, 2011 House of Assembly election in respect of the member representing the Oshimili – South Constituency, in the Delta State House of Assembly. The 1st respondent said he won the said primary election with 105 votes whilst the appellant scored 26 votes. The 2nd respondent published the name of the appellant as the candidate of the 4th respondent for the election of 16th April, 2011. The 1st respondent protested to the 2nd and 4th respondents and insisted that the publication of the appellant’s name as the candidate of the 4th respondent be corrected because according to him, having scored the majority votes of 105, he was the winner in that election and not the appellant.
The 2nd and 4th respondents did not do anything to assuage the complaint of the 1st respondent; hence he had to go to court and access justice. The 1st respondent approached the Federal High Court holden at Asaba, Delta State. He filed an originating summons at that court on 17th February, 2011.
The 1st respondent was the plaintiff in that action. The 2nd respondent herein was the 1st defendant; the 3rd respondent was the 2nd defendant; the 4th respondent herein was the 3rd defendant whilst the appellant was the 4th defendant in the said action.
In the originating summons, three questions were posed to be answered by the court below whilst the action was anchored on five grounds. The 1st respondent prayed for declaratory and injunctive reliefs, accordingly.
For ease of reference and appreciation, the said questions, grounds and reliefs in the originating summons are reproduced, inter alia:
1. “Whether having regard to the provision of Section 87(4)(c) of the Amended Electoral Act, 2010, the publication of the 4th Defendant’s name as the PDP candidate representing the Oshimili – South Constituency for the Delta State House of Assembly elections due in April, 2011, amounts to a violation of the said electoral Act.
2. Whether having regard to the provisions of the Amended Electoral Act, 2010, the 3rd Defendant has the discretion or power to substitute the Plaintiff’s name with that of the 4th Defendant as the PDP candidate representing the Oshimili South Constituency for the Delta State House of Assembly election due in April, 2011.
3. Whether the publication of the 4th Defendant’s name as the P.D.P. candidate representing the Oshimili-South Constituency for the Delta State House of Assembly elections due in April, 2011, regardless of the Plaintiff’s victory at the P.D.P primaries held for the said election amounts to a violation of the Plaintiff’s rights as enshrined in the Amended Electoral Act, 2010, and the 1999 Constitution of the Federal Republic of Nigeria (as amended; thus entitling the Plaintiff to the reliefs sought hereunder.
GROUNDS:
1. By the Mandatory Provisions of the Amended Electoral Act, 2010, where a Political Party conducts primaries to select its candidate for any electoral office, the aspirant that scored the highest number of votes cast at the said primaries shall be the candidate of the Party for the said election.
2. The Defendant, (PDP) conducted primaries (through accredited delegates) on the 6th of January, 2011; at the Oshimili – South Local Government Arcade, Asaba, at the end of which the plaintiff scored the highest number of votes (105) and was duly and openly declared the winner of the said primaries by the PDP returning officer, but strangely, the name of the 4th Defendant and incumbent member representing the said constituency at the Delta State House of Assembly and who came fourth with only 26 votes at the said primaries was published by the 1st and 2nd Defendants as the duly nominated candidate of the PDP for the House of Assembly Election.
3. The Plaintiff was not in any manner whatsoever informed as to the reason why his name was not published as the candidate of the PDP for the said Election having scored the highest number of votes and been duly declared the winner of the aforesaid PDP primaries.
4. The aforesaid action of the Defendants were in flagrant breach of the Plaintiff’s rights under the Amended Electoral Act, 2010; the 1999 Constitution of the Federal Republic of Nigeria (as amended); the PDP Constituency and all relevant Guidelines.
5. The Plaintiff reported the matter to the relevant organs of the 1st and 3rd Defendants but to no avail, hence this action.
THE ANSWER TO QUESTIONS NOS. 1, 2, AND 3 ARE RESOLVED IN FAVOUR OF THE PLAINTIFF, TO WIT: THAT THE PUBLICATION OF THE 4TH DEFENDANT’S NAME AS THE DULY NOMINATED CANDIDATE OF THE PDP FOR THE SAID ELECTION IN PLACE OF THE PLAINTIFF’S NAME WHO WON THE SAID PDP PRIMARIES AMOUNTS TO A VIOLATION OF THE AMENDED ELECTORAL ACT AND THE 1999 CONSTITUTION AS AMENDED; AND CONSEQUENTLY WAS IN VIOLATION OF THE PLAINTIFF’S RIGHTS; THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS FROM THE DEFENDANTS:
1. A declaration that the publication of the 4th Defendant’s name by and/or at the instigation of the 1st, 2nd and 3rd Defendants, as the duly nominated candidate of the Peoples Democratic Party (PDP representing the Oshimili – South Constituency for the Delta State House of Assembly elections to the held on 16th April, 2011, amounts to a violation of the Plaintiff’s rights under the Amended Electoral Act of 2010; the Constitution of the Federal Republic of Nigeria (as amended), and is consequently null and void and of no legal effect.
2. A declaration that the Plaintiff is by virtue of the Amended Electoral Act, 2010, and the 1999 Constitution (as amended) the valid candidate of the Peoples Democratic Party (PDP) entitled to contest the aforesaid forthcoming Delta State House of Assembly Election for the Oshimili – South Constituency; having won the Party (PDP) primaries for the said election.
3. An order setting aside the publication of the 4th Defendant’s name as the duly, nominated PDP candidate for the said election, and in its place, and order directing the 1st, 2nd and 3rd Defendants to recognize, and/or cause the publication of the Plaintiff’s name as the candidate or deemed candidate of the PDP for the said election.
4. An order of perpetual injunction restraining the Defendants from holding out, parading and/or recognizing the 4th Defendant as the PDP candidate for the said election.
5. Any other consequential orders that this Honourable Court may deem fit to make under its inherent powers at the time of judgment so as to give effect to the provisions of the Amended Electoral Act and the 1999 Constitution as Amended”
There is an affidavit of 16 paragraphs in support of the originating summons. Some documentary exhibits were annexed to the said affidavit. 1st respondent/plaintiff’s written address in support of the originating summons; a motion Exparte for interim injunction and also a motion on notice for interlocutory injunction with affidavits and written addresses in support thereof, were all contemporaneously filed along with the originating summons.
The appellant, on 24th February, 2011 filed a memorandum of appearance on protest, dated 23rd February, 2011.
On 28th February, 2011; the appellant filed a preliminary objection pursuant to O. 5 r. 1(1), 2(1) (2) O. 3 r. 6 and O. 6 r. 2 of the Federal High Court (Civil Procedure) Rules, 2009. He prayed for order of court dismissing/setting aside/striking out the suit and all the processes issued therefore in that –
“(i) This suit is unripe for judicial inquiry in that plaintiff did not exhaust all administrative channels for redress provided by the PDP constitution binding on the parties.
(ii) The court lacks jurisdiction to entertain any of the claims in the originating summons.
(iii) No personal service contrary to O.6 r. 2.
(iv) This suit is unconstitutional and contrary to the express agreement of the plaintiff, 3rd & 4th Defendants as contained in the Peoples Democratic Party Nomination form for State House of Assembly Primary Election 2011 which governed this contest and SS. 222(c) & 223 CFRN 1999 as amended, Article 17.1; 21.2, 21.1(L) & 12.72(h) of the PDP Constitution 2009 as amended and therefore unmaintainable null and void ab initio.”
There are four grounds upon which the preliminary objection was predicated:
TAKE NOTICE THAT the Grounds of this Preliminary objection are:
a. That the issues surrounding the Primary of the 3rd Defendant in question is highly contentious and most unsuited for originating process envisaged by O.3 r. 6 of this Court’s Rules 2009.
b. Reliefs claimed are in substance Declaratory and evidence liable to cross examination is needed to anchor the claims.
c. That the 4th Defendant objector herein was not served personally contrary to O. 6 r. 2 of the court Rules.
d. The Plaintiff, 3rd & 4th Defendants agreed that the outcome of the primary and the Decision of the 3rd Defendant to nominate any candidate and forward to the 1st Defendant shall not be litigated or questioned as per para. 14 of Plaintiff’s Nomination form CODE PD003/SA/2010 NO 0005286 thus:
“I, Onwusanya Peter of 351 Nnebisi Road, Asaba do hereby affirm that I shall abide and comply with all the conditions which the party has laid down in the Nomination form.
That I will support the person that the party will nominate as its State House of Assembly candidate and work at all times towards his/her success and will not engage in any anti-party activities.
That I agree to abide by the Rules and Regulations for candidates on the conduct of primaries which shall be in the overall interest and success of the PDP and as per guidelines and decisions of the National Executive Committee and any other guidelines issued for election into the State House of Assembly or as the case may be.
That I undertake to abide by the decisions of the party as final (and not subject it to any litigation whatsoever or adjudication by any other body including the court of law)
e. That the constitution of the PDP binds the plaintiff and the 3rd & 4th Defendant which constitution prohibits this action in the circumstance of the case.”
An affidavit of 11 paragraphs and a written address in support of the preliminary objection was filed by the appellant/objector.
The 1st respondent with leave of the court below, deposed to a counter – affidavit of 17 paragraphs, with a written address thereof against the preliminary objection, filed on 16th March, 2011.
The appellant with leave of the court below, filed a 17 paragraph counter-affidavit and a written address in support thereof, in opposition to the originating summons. This was on 31st March, 2011.
The appellant’s preliminary objection and the 1st respondent’s originating summons were both taken and argued together on 31st March, 2011. In his judgment delivered on 14th April, 2011; the learned trial judge dismissed the preliminary objection of the appellant and found for the 1st respondent by granting all the reliefs prayed for in the originating summons.
This appeal is against the said judgment of 14th April, 2011. The appeal was originally anchored on five (5) grounds. However, with the leave of this court sought and obtained on 22nd January, 2013; the appellant filed an amended notice of appeal, containing fifteen (15) grounds, which shorn of their particulars, say –
“GROUND ONE
The learned trial judge erred in law and occasioned grave miscarriage of justice when he relied on inadmissible secondary evidence in finding Plaintiffs case proved.
GROUND TWO
The learned trial judge erred in law when he relied upon the obiter dictum of Ogbuagu JSC in Mogaji V. The Nigerian Army (2008) 8 NWLR (pt. 1089), 338 at 395 – 396 in relying on inadmissible evidence in proof of the Plaintiff’s case which reliance occasioned grave miscarriage of justice.
GROUND THREE
The learned trial judge erred in law when he assumed jurisdiction and granted Plaintiff’s reliefs 1, 2 and 3 of the originating summons contrary to Sections 31, 32 33 and 34 of the Electoral Act 2010 as amended.
GROUND FOUR
The Learned Trial Court erred in law when he failed to resolve the issue of proper service and thereby deprived itself of jurisdiction.
GROUND FIVE
The learned Trial Judge erred in law and occasioned grave miscarriage of justice when he failed to consider or adequately consider the defence of mutual agreement between the Plaintiffs, 3rd and 4th Defendant inter se and wrongfully relied on UGWU V. ARARAUME (2007) 12 NWLR PT. 1048, 368 to hold that Appellants name was substituted for 1st Respondent.
GROUND SIX
The Learned Trial judge erred in law when he held that:
“I have scrutinized the originating summons, I have not seen any feature on it that robs this court of the vires to hear and determine the questions for determination.”
GROUND SEVEN
The Learned Trial judge erred in law and deprived himself of jurisdiction when he held:
“The Affidavit of the Bailiff of this court, Mr. Ovhoi Friday, he served the 4th Defendant personally to: Hon. Emeka Okonji through his personal secretary Nweze Rosita at his office Delta State House of Assembly, Okpanam Road, Asaba,”
“Indeed, in the Counter Affidavit of the Plaintiff deposed to on 16/3/11, paragraphs 5 – 7 are very clear and instructive that the 4th Defendant directed the Bailiff of this court to deliver the court process to his secretary.”
GROUND EIGHT
The Lower court erred in law when it heard and determined this suit on originating summons and gave judgment in favour of the 1st Respondent inspite of consistent protest of the 4th Defendant/Appellant and averments in the said Appellant’s Affidavits challenging the purported primary and the result.
GROUND NINE
The learned trial judge erred in law when he delivered judgment in favour of the 1st respondent based on the affidavit evidence before the court and documents attached thereto.
GROUND TEN
The Trial Court erred in law and occasioned grave miscarriage of justice when it held that:
“It is glaring that the 4th Defendant in this Originating Summons has no Counter-Claim. In short he has not framed or set his own questions for determination. Therefore there were no primaries or the primaries that was manipulated as averred by the 4th Defendant himself.”
GROUND ELEVEN
The Trial Court erred in law when it held that
“The facts are not in dispute, the 4th Defendant came 4th, his name was taken or accepted by INEC instead of the Plaintiff.”
and proceeded to hold that the 1st Respondent was the validly nominated candidate of the 4th Respondent.
GROUND TWELVE
The Trial Court erred in law and occasioned grave miscarriage of justice when it held:
“On the whole and upon a calm assessment, I am more than satisfied that the 4th Defendant has no defence in this case whatsoever…….”
GROUND THIRTEEN
The Trial Court misapprehended and misconstrued the various defences of the 4th Defendant/Appellant when it held that:
“The provision of the Electoral Act as amended has conferred a legal right on the Plaintiff to approach the court if he is aggrieved from the conduct of the party’s Primaries, that right cannot be taken away by the PDP constitution neither can the signing of an Affidavit of the party amount to a waiver, such a public right cannot be waived. See the case of ARIORI V. ELEMO (1983) 1 S.C.N.L.R. 1. I am of the considered opinion that the case KUDU V. ALIYU (1992) 3 N.W.L.R. Pt. 231, 615 at 635 can never be and is never an authority for the PDP to breach its own constitution in one breadth and seek to enforce it in another breadth and claim that the Plaintiff has waived his right.
(a) The right of a candidate to approach a court for redress in S. 87(10) Electoral Act 2010 as amended is a private right of such an aspirant.
(b) The Plaintiff as an aspirant entered into a valid statutory contract to waive that right which defence was raised by the appellant.
(c) PDP, the 4th Respondent is not the party that raised the defence.
(d) Kudu V. Aliyu (1992) 3 NWLR Pt. 231 binding on the trial court was wrongly rejected.
(e) Ariori V. Elemo (1993) 1 SCNLR 1 also binding on the trial court was not properly applied.
(f) The defence of waive is not tied to any provision of PDP constitution.”
GROUND FOURTEEN
The Trial Court erred in law when he failed to exercise his discretion judicially and judicious before granting the Plaintiff’s declaratory and injunctive prayers.
GROUND FIFTEEN
The Learned Trial judge denied the parties fair hearing by hearing the matter behind some of the Respondents, who have statutory duties to process the result of the PDP Primary in question by hearing the matter behind them without prior Notice hearing and not ensuring that all processes filed are served on all the parties before continuation of hearing.
The appellant, in prosecuting the appeal was armed with his amended brief of argument dated 25th January, 2013, which pursuant to the order of this court made on 22nd January, 2013, filed the same on 28th January, 2013. It was settled by Chief A.P.A. Ogefere, of learned counsel to the appellant. He distilled seven issues for determination therein, to wit:
“ISSUE ONE
Whether the judgment of the trial court must be based on Admissible evidence (Grounds One and Two)
ISSUE TWO
Was the discretionary power of the trial Court properly exercised in granting the declaratory reliefs the result of which violates express provisions and prohibitions of the Electoral Act 2010 as amended and valid contract willingly entered into by the Appellant, 1st Respondent and the 4th Respondent? (Grounds Three, Five, Thirteen & Fourteen)
ISSUE THREE
Was there a proper Originating Summons and proper service of the processes on the Parties and if no, what are the consequences on the judgment (Grounds Four and Six).
ISSUE FOUR
Whether in this case Originating Summons satisfied all the conditions precedent to it being heard by the Court in the circumstances of this case (Ground Seven).
ISSUE FIVE
Whether the procedure adopted and the decision of the trial Court was right in the circumstances of this case having regards to the facts and the issues raised in the Appellant’s Counter-Affidavit to the originating summons (Ground Eight, Nine & Ten).
ISSUE SIX
Was it right for the Trial Court to assume the authenticity of the Result of the alleged Party Primary and ignore prescribed conditions for valid Primary in the face of conflicting Affidavit evidence and allegation of fraud before the trial court (Grounds Eleven & Twelve).
ISSUE SEVEN
WHETHER the hearing and determination of this suit in the circumstances did not violate due process and fair hearing occasioning grave miscarriage of justice (Ground Fifteen)”
The 1st respondent’s brief of argument which contained his notice of preliminary objection and submissions thereon was filed on 5th July, 2013 and deemed filed by this court on 7th November, 2013. It was settled by learned counsel – Chike Onyemenam, Esq., for the 1st respondent. He adopted the seven issues formulated for determination by the appellant’s counsel.
The 2nd & 3rd Respondents’ brief of argument dated 8th September, 2011 and filed on 19th September, 2011 was deemed as properly filed on 3rd June, 2012. It was settled by Ikechukwu Maledo, Esq., who identified two issues for determination thus:
“Issue One: Whether, based on the documentary evidence before the court, the trial court was right in holding that the 1st respondent’s case has merit. (Grounds 1 and 2); and
Issue Two: Whether, based on the constitution of the 4th respondent and the right of the 4th respondent to sponsor a candidate of its choice in an election, the appellant was validly nominated by the 4th respondent as its candidate for the general election notwithstanding the result of the primary election (Grounds 3 and 5).”
On the part of the 4th respondent, her brief of argument dated 18th November, 2013 was deemed filed on the same date, with leave of this court. It was settled by J. Alibor, Esq., who identified two issues for determination, inter alia:
“(i) WHO BETWEEN THE APPELLANT AND THE 1ST RESPONDENT WON THE P.D.P. PARTY PRIMARY FOR OSHIMILI – SOUTH CONSTITUENCY OF THE DELTA STATE HOUSE OF ASSEMBLY; THUS BECOMING THE VALID CANDIDATE OF THE P.D.P. FOR THE SAID HOUSE OF ASSEMBLY ELECTION?
(ii) WHETHER GROUNDS 3, 5, 13 & 14 OF THE APPELLANT’S AMENDED NOTICE OF APPEAL AND ISSUE NO. 2 RAISED THEREFROM, TOGETHER WITH RELIEFS 4(ii) – (iv) OF THE SAID NOTICE OF APPEAL ARE PRE-ELECTION ISSUES THAT WERE PLACED BEFORE THE LEAREND TRIAL JUDGE.”
I have earlier alluded to the preliminary objection raised by the 1st respondent against the appeal. It was filed on 2nd July, 2013. It was targeted at Grounds 1, 2, 3, 14, 8, 9 and 10 of the appellant’s amended notice of appeal.
The appellant on 8th November, 2011 filed a reply brief of argument dated 7th November, 2011.
The contention of the 1st respondent with respect to grounds 1 and 2 of the notice of appeal is in relation to the question of the admissibility in evidence of photocopies of 1st respondent’s exhibits and laying of foundation before relying on them which according to him, was not an issue at the trial, hence it cannot be validly raised in this appeal without the leave of this court sought and obtained.
I have perused page 387 of the record of appeal where the said issue was raised by Chief Ogefere. The learned trial judge at page 424 of the record of appeal in his judgment did not agree with Chief Ogefere’s contention, hence the appeal against that decision on the issue. I am therefore satisfied that grounds 1 and 2 are on target and competent.
With respect to grounds 3 and 14 of the notice of appeal, it is the contention of the 1st respondent that the issues of the time limit for political parties to submit the names of their candidates to INEC, the swearing of affidavits by the said candidates, the procedure for filing of nomination forms by candidates, the conditions under which the candidates’ names that have been already submitted to INEC can be changed by their political parties which are the fulcum of Sections 31(1), (2), (7), 32(1), 33, 35, 36 and 141 of the Electoral Act, 2010 as amended, were not issues at the trial court. Therefore, the appellant cannot raise them at this stage without obtaining the leave of this court.
Paragraphs 7, 9 and 10 of the appellant’s affidavit in support of his preliminary objection, annexed the constitution of the PDP as Exhibit ‘4D1’. See pages 93 – 94 of the record of appeal. Furthermore at paragraphs 9, 10 and 11 of the appellant’s counter-affidavit against the originating summons (pages 198 – 199 of the record of appeal) the question of swearing of affidavits by candidates, the procedure of filing nomination forms by candidates were deposed to by the appellant. The 1st respondent, then plaintiff did not file a further affidavit to controvert those depositions. And at page 387 of the record of appeal, Chief Ogefere referred to the effect of Sections 31, 32 and 141 of the Electoral Act, 2010 as amended vis-a-vis the circumstances and facts of the case at the trial court. However, learned counsel – Mr. Onyemenam, for the 1st respondent did not respond to it in his reply.
It is very clear to me that issue two was before the trial court and not a new issue in this court. Therefore, the leave of this court was not required by the appellant for filing grounds 3 and 14, which are valid and competent.
Regarding issue five and grounds 8, 9 & 10 of the notice of appeal, the 1st respondent’s contention is that issue five did not flow from the aforementioned grounds of appeal. I have perused the said issue five. It raised the question of the propriety of the determination of the action on originating summons because the appellant insisted that it was not the proper mode for initiating actions that are contentious, such as the present one.
Upon my perusal of the submissions under the said issue five, it is crystal and clear to me that it is predicated only on ground 8 of the amended notice of appeal. Therefore, whereas issue five flowed from the said ground 8, it cannot be said to have flowed from grounds 9 and 10. In other words, whereas I found that issue five was anchored on ground 8 only, from which it flowed, grounds 9 and 10 have no issues formulated from them for determination.
It is trite that where a ground of appeal has no issue formulated from it for consideration and determination, such a ground of appeal is deemed as abandoned and must be struck out. This is so, because the appellate court does not determine grounds of appeal, but issues formulated from the grounds of appeal. J.A. Aderegbigbe & Anor. V. Tiamiyu Abidoye (2009) 4 SCNJ 259.
I am satisfied that whilst ground 8 of the amended notice of appeal from which issue five was formulated is competent, grounds 9 and 10 which have no issues formulated from them are deemed as having been abandoned by the appellant, hence they are each struck out. In effect, the 1st respondent’s preliminary objection succeeds in part, with respect to grounds 9 and 10 only of the amended notice and grounds of appeal.
I shall now proceed and consider the kernel of the appeal. Having perused the issues formulated for determination by the appellant vis-a-vis the ones formulated by the 2nd/3rd respondents and the 4th respondent, I am contented with the issues formulated by the appellant and I adopt his own accordingly.
I intend to consider issues three and four, first. They were argued together by the appellant at paragraphs 5.00 – 5.03 and 5.06 – 5.08 of his amended brief of argument. The thrust of the learned counsel to the appellant’s contention is that there was no proper service of the originating summons and other processes filed within the trial. He submitted that by virtue of Order 6 r. 2 and Order 3 r. 14 of the Federal High Court (Civil Procedure) Rules, it was mandatory that personal service be effected on the appellant. He referred to Principles, Practice and Procedure, at p. 71 by AGUDA, to the effect that ‘personal service’ means “delivering the document to be served personally to the person”. He also referred to Civil Procedure in Nigeria by Fidelis Nwadialor, 2nd Edition at p. 253, to the effect that:
“The service must be on the person to be served, so service on his wife or agent is not good service, even if the agent undertakes to take the document to the person.”
Learned appellant’s counsel further submitted that there was conflict between the appellant and the 1st respondent with respect to the question of non-service of the originating summons on the former. And that the best way for the learned trial judge was to have resolved that conflict by calling oral evidence on it, which he failed to do. He referred to Ugbane V. Husseini (2009) 5 NWLR (pt. 1135) 530 at 544; Gbadamosi V. Alete (1998) 12 NWLR (pt. 578) 402; Madagali L.G.A V. NPC (1998) 11 NWLR (pt. 572) 661; Ndigere V. Ibekendu (1998) 7 NWLR (pt. 558) 486.
He referred to pages 402 – 403 of the record of appeal where the learned trial judge resolved the conflict in favour of the 1st respondent.
With respect to issue four, learned appellant’s counsel at paragraphs 5.06 – 5.08 of the amended brief of argument, submitted that by virtue of Sections 97 and 98 of the Sheriff and Civil Process Act, endorsement on an originating process such as the one herein, is mandatory and where such is not done, the summons is void ab initio. He relied on Owners of M. V. Arabella (no citation given); Adegoke Motors V. Adesanya (1989) 3 NWLR (pt. 109) 250; NEPA V. Onah (1997) 1 NWLR (pt. 484) 680; NPA V. Eyamba (2005) 12 NWLR (pt. 939) 409 at 448; Idris V. Archibong (2001) 9 NWLR (pt. 718) 447; Orakul Res. Ltd. V. NCC (2007) All FWLR (pt 390) 1482; Equity Bank of Nig. Ltd. V. Hahico Nig. Ltd (2006) All FWLR (pt. 337) 438 at 453.
Furthermore, appellant’s learned counsel, referring to Order 30 r. 20 of the Federal High Court (Civil Procedure) Rules, 2009 and Section 98 of the Sheriff and Civil Process Act Cap. 6, Laws of the Federation of Nigeria, 2004, submitted that the originating summons herein, being concurrent summons, ought to have been so marked before it was served. He insisted that the failure to so mark it, made the originating summons, to be incomplete (sic: incompetent). He referred to Nwabueze V. Okoye (1988) 4 NWLR (pt. 91) 664 at 721; UBA Trustees Ltd. V. Nigergrob Ceramis Ltd. (1989) 3 NWLR (pt. 62) at 615.
In his response, learned 1st respondent’s counsel submitted that there is undeniable evidence that the appellant was served with the originating summons upon the direction of the appellant through his personal secretary – Miss Nwajei Rosita. He insisted that the service on the third party in the circumstance of this case, was good service, on the authority of this court on Best Western co. Ltd V. Udomisor (2002) 2 FWLR (pt. 97) 744 at 759 – 760. It is his submission too that since there is no counter – affidavit by the appellant against the bailiff’s affidavit of service, the same remains valid, to the effect that the appellant was properly served with the originating summons. He relied on I.B.W.A V. Sasegbon (2007) All FWLR (pt. 388) 1099 at 1117 – 1118. (CA)
Furthermore, learned 1st respondent’s counsel submitted that since the appellant filed a conditional appearance and still went ahead to defend the originating summons on the merit, he could not turn round to complain that he was not served with the originating summons. He placed reliance on the authorities of this court in Jobcharles Nig. Ltd V. Okonkwo (2002) FWLR (pt. 117) 1067 at 1077 – 1078; Food and Commodities Ltd. V. Aremu (1990) 2 NWLR (pt. 134) 554 at 564; Kisari Investment Ltd. V. LA-Terminal C. Ltd. (2001) FWLR (pt. 66) 766 at 786.
Mr. Onyemenam, also placed reliance on Ido-Osi Local Government V. Aluko (2007) All FWLR (pt. 352) 1807 at 1817 where this court held that where a defendant appeared in court in answer to a summons, his presence in court is the best proof or evidence of service of the originating process on him, thus dispensing with the proof of service by affidavit evidence. He again referred to Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (pt. 109) 250 at 272 where the apex court held that a party to a suit is said to appear in court when such a party is present before the court, when the suit is heard and that party is in court either in person or by his counsel, which was what happened in the instant case.
With respect to the appellant’s contention that the originating summons was not endorsed and marked “CONCURRENT”, since it was to be served outside jurisdiction at Abuja, before it was served on the 1st and 2nd defendants, he referred to pages 272 and 287 of the record of appeal, showing that the originating summons was marked “E/R” and the word CONCURRENT” was clearly written thereon, and also stating that “WRIT ISSUED IN ASABA TO BE SERVED AT ABUJA”. Therefore, according to him, it is clear that certified true copies of the originating summons were marked and meant to be served on the 1st and 3rd Defendants (INEC and PDP) at Abuja, outside the Asaba Territorial jurisdiction.
It is the further contention of Mr. Onyemenam that even if there was no endorsement on the originating summons, the fault was not that of the plaintiff/1st respondent for him to be punished, but that of the registrar of the court below for tardiness in the performance of his duties. He relied on Broad bank Nig Ltd. V. Alhaji Olayiwola & Sons Ltd. (2005) All FWLR (pt. 251) 236 at 248 & 252. He also referred to the authorities of this court in Panalpina World Transport Holding AG V. C.C. Ltd (2011) All FWLR (pt. 600) 1258 at 1280; R.M.A.F.C V. Onwuekweikpe (2010) All FWLR (pt. 528) 947 at 961, to the effect that a failure to endorse an originating summons or a writ of summons for service outside jurisdiction is voidable at the instance of the party (outside jurisdiction) who was so served and such a party can waive the said irregularity and take steps after becoming aware of the irregularity, by filing a counter – affidavit or defence and argue the case on the merit.
Let me start with the issue of endorsement on the originating summons in question.
Order 3 Rules 19 and 20 of the Federal High Court (Civil Procedure) Rules 2009, say:
“19. A plaintiff may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating process each to bear the same date as the initial process marked “CONCURRENT” and have stated on it the date of issue.
20. An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.”
There is no doubt that the originating summons in the present case was filed and issued at the Federal High Court, Asaba, Delta State. It is crystal and clear that whereas the appellant, with the 1st respondent and the 3rd respondent are ordinarily resident in Asaba, within jurisdiction, the 2nd and 4th respondents (INEC & PDP respectively) have their head offices at Abuja, which is not within Delta State where the Federal High Court Asaba, is located. Therefore, the 2nd and 4th respondents are not ordinarily within the territorial jurisdiction of the court below.
Rules 19 and 20 of Order 3 of the Federal High court (Civil Procedure) Rules, 2009 reproduced above are unambiguous. The 1st respondent as the plaintiff at the issuance of his originating summons, to my mind, was aware of the fact that he was issuing the summons to two categories of defendants. Two of them were ordinarily resident within Delta State whilst two others were not so ordinarily resident within Delta State. The 1st respondent was at liberty at the issuance of the originating summons for service on the Defendants ordinarily resident within the territorial jurisdiction of the court below, and also the originating summons for service outside the territorial jurisdiction of the court below, “may” issue and caused to be marked as a concurrent originating process.
I have seen page 287 of the record of appeal where a certified true copy of the originating summons served on the 2nd respondent (INEC) and the 4th respondent (PDP) at Abuja, which are not ordinarily within the territorial jurisdiction of the court below, sitting at Asaba, Delta State, clearly marked “CONCURRENT” and that the “WRIT ISSUED IN ASABA TO BE SERVED? AT ABUJA”. I have also seen at page 272 of the record of appeal that the certified true copy of the originating summons on FORM 3, is marked “CONCURRENT” at the top right hand side corner thereof.
I am satisfied that there was substantial compliance with order 3 rules 19 and 20 of the Federal High Court (Civil Procedure) Rules, 2009, when the 1st respondent, caused the issuance of the originating summons against the appellant and the 2nd – 4th respondents, who were all defendants, at the court below. I, so hold. I perused all the authorities of the Supreme Court and this court, relied upon by the appellant and the 1st respondent. It is clear to me that none of the said authorities were decided on the new 2009 civil procedure rules of the Federal High Court. However, in Broad Bank Nig. Ltd V. Alhaji Olayiwola & Sons (supra), the Supreme Court held, to wit:
“If the prescription of the Law is that a Writ should be of a certain nature or in a certain manner before it can be valid for service, it is the bounden duty of the Registrar to perform his duty of endorsing the process. The Appellant in this case cannot be punished for the negligence or tardiness of the Registrar in the performance of his duty.”
This is instructive and noteworthy. That is, it was the duty of the registrar to endorse the initiating process.
Therefore, a litigant cannot be punished for a non-endorsement on an initiating process with the word “CONCURRENT” marked on it. I think that, that was why the word “may” used at rules 19 and 20 of Order 3 of the Federal High Court (Civil Procedure) rules, 2009 should not be construed as “shall” and mandatory. I believe the word “may” in the circumstances, means “may” and discretionary and not mandatory.
In sum, the originating summons issued out at the instance of the 1st respondent has no defect in it.
PERSONAL SERVICE OF ORIGINATING SUMMONS
Undeniably, the appellant right from the onset entered appearance to the originating summons in protest and alleged that he was not personally served with the originating summons at the instance of the 1st respondent. The learned appellant’s counsel insisted that the alleged service on the personal secretary of the appellant did not amount to personal service in accordance with Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009. The said rule says inter alia:
6.2 ” Save as otherwise prescribed by any of these Rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the originating process filed, without exhibiting the original thereof.”
The learned trial judge at pages 402 – 403 of the record of appeal said, inter alia:
“Having referred to the case file before the court, I found as a fact that at the resumed hearing of the case on 24/2/11, the minutes of the court reads:
“There is Affidavit of Personal service dated 21/2/11”.
The Affidavit of the Bailiff of this Court, Mr. Ovhoi Friday, he served the 4th Defendant personally to:
“Hon. Emeka Okonji through his personal Secretary Nwaeze Rosita at his office Delta State House of Assembly, Okpanam Road, Asaba.”
I have seen the affidavit of service dated 21-02-2011 at page 306 of the record of appeal. An unspecified document was served on NWAJEI ROSITA, a Secretary at the Delta State House of Assembly, Asaba. The name of bailiff or process server was not indicated thereon. Could that be the originating summons which his Lordship found was served on the personal secretary called NWAEZE OSITA who took service on behalf of the appellant? It should be noted that Nwaeze Osita cannot be the same as Nwajei Osita at page 306 of the record of appeal.
Furthermore, the learned trial judge at page 403 of the record of appeal said:
“Indeed, in the counter-affidavit of the plaintiff deposed to on 16/3/11, paragraphs 5 – 7 are very clear and instructive that the 4th Defendant directed the Bailiff of this court to deliver the court process to his secretary. These averments were never denied or controverted by the 4th Defendant. Therefore I agree that service upon a third party on the direction of the person to be served is personal service.”
The plaintiff/1st respondent’s counter-affidavit in opposition to the appellant’s preliminary objection is at pages 166 – 170 of the record of appeal. Paragraph 3 of the said counter-affidavit says, to wit:
“The Bailiff of this Honurable Court, Mr. Friday Ovhoi on 28/2/2011 at about 8.30 am at the Federal High Court premises, Asaba, informed me and I verily believed him that on 21/2/2011, he effected service of the originating summons, the court order and other accompanying court processes on the 4th Defendant/Applicant personally at his office in the Delta State House of Assembly, Asaba, by presenting same to the 4th Defendant/Applicant who directed him to leave all the said court processes with his secretary and which direction or instruction he complied with and deposed to an affidavit of service in proof of same”.
Now, the Affidavit of Service by Mr. Ovhoi Friday is at page 296 of the record of appeal. The said affidavit of service, like every record speaks for itself, so it does not lie. It says Mr. Ovhoi is “Commissioner for Oaths & Staff Federal High Court, Asaba.”
– The documents he served on the 4th Defendant’s secretary were: “Motion on Notice, Affidavit in support, Appt. Written Address in support filed 17/02/2011”
– And that the same were delivered “personally to Hon. Emeka Okonji through his personal secretary, Nwajei Rosita, at his office Delta State House of Assembly, Okpanam Road, Asaba.”
– This was on 21st February, 2011.
It is crystal and glaring, that the court processes which Mr. Ovhoi Friday served on the appellant through his personal secretary – Nwajei Rosita on 21/02/11 did not include the originating summons in question. Therefore, the learned trial judge was clearly in error when he concluded that the originating summons was personally served on the appellant through a 3rd party – his personal secretary.
I am in agreement with the submission of Chief Ogefere, for the appellant that personal service of an originating process such as the originating summons herein, is mandatory by virtue of Order 6 r. 2 of the Federal High Court (Civil Procedure) Rules, 2009. Personal service is personal service. It cannot be constructive or indirect service. The learned Justice (Dr) T.A. AGUDA of blessed memory, in his book: Principles, Practice and Procedure Relating to Evidence at page 71 thereof, stated that personal service means –
“delivering the document to be served personally to the person”.
So also, in his book – CIVIL PROCEDURE IN NIGERIA, 2nd Edition at page 253, the learned author – Fidelis Nwadialor, re-echoed the opinion of Aguda, CJ., (supra) to the effect that –
“The service must be on the person to be served, so service on his wife or agent is not good service, even if the agent undertakes to take the document to the person.”
Therefore, in the circumstances of the present case, if at all there was service of the originating summons, which was not true, on the personal secretary of the appellant, it amounted to no good service, hence there was no service on the appellant.
The law is well settled beyond controversy, that where the rules of court provides that writs of summons or originating summons be personally served on the defendant, failure to do so, is not a mere irregularity but a fundamental vice which goes to the root of the action and any judgment or order obtained thereon, is a nullity and ought to be set aside. This is because, service of an originating process on a defendant is what brings him to the court and then confers jurisdiction on the court to adjudicate over the case. African Continental Bank Plc. V. LOSADA Nig. Ltd (1995) 7 NWLR (pt. 405) 25 (SC).
The Supreme Court in kalu Mark & Anor. V. Gabriel Eke (2004) 5 NWLR (pt. 865) 54, per his Lordship – Musdapher, JSC (as he then was) re-stated the law that:
“When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants prove non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice audi alterem partem will be breached.”
Further see: Auto Import Export V. Adebayo (2000) 18 NWLR (pt. 799) 554; S.G.B.N V. Adewunmi (2003) 10 Ezuka (1994) 8 NWLR (Pt. 364) 535. So, a failure to properly serve an originating process is a fundamental vice and deprives the court of the necessary competence and jurisdiction to hear and determine the suit. Mohammed Kida V. A.D. Ogunnola (2006) Vol. 8 MJSC. 1.
The learned trial judge, clearly did not, with due diligence peruse and scrutinize the affidavit evidence vis-a-vis the appellant’s persistent claim that he was not personally served with the originating summons herein. I think the admonition by my Lord Muhammad, JSC in First Bank of Nigeria Plc V. T.S.A. Industries Ltd (2010) 7 SCNJ 384 at 436, is apt that:
“Indeed, the court has a duty to meticulously verify/scrutinize the claim to service of process on any of the parties before it. Service must be effected as required by law. Swearing of an affidavit of service by a court bailiff, is not only required but the court must be convinced that the facts stated therein are relevant and more likely to be true in a given case. Any fact put in evidence or step taken by a bailiff which creates doubt, suspicion or confusion should, not be relied upon by the court to deprive or deny a party fair hearing or trial which is guaranteed to every citizen by the constitution.”
I, dispassionately considered the submission of Mr. Onyemenam for the 1st respondent that since the appellant became aware of the suit against him vide the originating summons, and had appeared in court; filed his defence to the suit and engaged the services of a counsel who defended him at the trial, he had waived the irregularity in the non-service of the originating summons on him. He relied on sundry authorities of this court, to that effect. I am afraid, those authorities no longer represent the law. They are all inapposite. The answer to learned counsel’s contention aforementioned was graciously provided by the Supreme Court in Olorunyolemi V. Akhagbe (2010) 2 SCNJ 318 at 326, that:
“At any rate there is no evidence that the appellants were served with any of the controversial processes of court, and to say that the provision of Section 150(1) of the Evidence Act supra can be invoked is a misconception. The fact that a party was in court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. There must be actual proof of service on the necessary parties, i.e. the evidence of receipt vide signature of the party personally or his counsel or an affidavit of service sworn to by the person who effected the service. See Habib Nigeria Bank Ltd., Wahab Opomulero & Ors 2000 15 NWLR part 690 page 315. Service of process on a party is so fundamental that absence of it may affect the jurisdiction of a court and render a court’s proceeding a nullity. See Sken Consult (nig) Ltd & Anor. v. Godwin Sekondy Ukey 1981 1 SC 6, and Mark v. Eke 1997 11 NWLR part 529 page 501. The case of Kaduna iles supra cited by learned counsel is distinguished from the instant case, for in the former case there was evidence of service vide an affidavit of service.
In the instant case there was nothing to indicate that the appellants were served with the processes.”
– Per my Lord, Aloma Muktar, JSC (as he then was; now CJN).
Further see: National Bank Nig. Ltd. V. Guthrie Nig. Ltd & Anor. (1993) 4 SCNJ 1 at 17.
I should now draw the curtain on this issue. But lest I forget, it is clear to me that the learned trial judge appeared to be in a hurry to determine the suit being a pre-election matter. However, justice cannot and must not be sacrificed on the altar of speed which may work injustice to any of the parties in the action because if in the appellate court, an allegation of a denial of fair hearing, is sustained, which invariably leads to declaring a judgment or order obtained from the hurried proceedings, a nullity, it then becomes counterproductive.
This was why this court in Ashiru V. Ayoade (2000) 6 NWLR (pt. 976) 405 at 425 stated that:
“While the court must, at all times remain focused at striking a balance between the need for fair hearing and hearing within a reasonable time, the consideration should be the ultimate goal of substantial justice. The demands of quick justice should not be pursued at the risk of justice.”
Furthermore, it continued that:
“Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice.”
Having found that the non-service of the originating summons herein on the appellant was a fundamental vice which is tantamount to a denial of fair hearing to the appellant constitutionally guaranteed him under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the resultant effect is that the breach of fair hearing damnified and vitiated the judgment delivered by the trial judge, in its entirety and not just a part thereof. Military Governor, Imo State V. Nwanwa (1997) 2 NWLR (pt. 496) 675 at 708; Baba V. NCATC (1086) 3 NWLR (Pt. 42) 514; Bill Construction Company Ltd. V. Imani & sons Ltd (2006) 19 NWLR (pt. 1013) 1 at 14; Akinduro V. Alaya (2007) All FWLR (pt. 381) 1653; Ovunwo V. Woko (2011) 7 NWLR (pt. 1277) 522 at 549; FRN V. Akabueze (2010) 7 NWLR (pt. 1223) 525; Pan African International Corporation V. Shoreline Liftboas (2010) 6 NWLR (pt. 1198) 98; University of Calabar V. Dr. P.G. Akintunde (2013) 3 NWLR (pt. 1340) 1 at 29 – 30 (CA)
In the end, the appeal is allowed on ground four of the amended notice of appeal.
Consequently, I need not consider the remaining issues in this appeal, since the appeal is allowed on the issue of fair hearing. See Oged Orunnwo & Anor V. Iheanyichuwku Woko & 2 Ors (2011) 6 SCNJ (pt. 1) 124 at 137 where his Lordship, Chukwuma-Eneh, JSC, reechoed the opinion of my Lord, Uwaifo, JSC in Brawal Shipping Nig. Ltd V. Onwudike Co Ltd. & Anor. (2000) 6 SCNJ 508 at 512, that:
“It is no longer in doubt that this court demands of and admonishes, the lower courts to pronounce; as a general rule, on all issues properly placed before them for determination in order, apart from the issues of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
The judgment of I.N. Buba, J., delivered on suit No. FHC/ASB/CS/41/2011 dated 14th April, 2011 is set aside, in its entirety.
The suit is remitted to the Hon. Chief Judge of the Federal High Court, for a re-assignment to another judge of that court, for a retrial de novo, accordingly.
Each side to bear own costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having had a preview of the Judgment just delivered by my learned brother, the Hon. Justice T.S. Yakubu, JCA, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the present appeal is meritorious. Hence, I hereby allow the appeal, and set aside the Judgment delivered by the Federal High Court, Coram I.N. Buba J; in suit No. FHC/ASB/CS/41/2011 on 14/4/2011. I abide by the consequential order remitting the case to the Chief Judge Federal High Court for reassignment to another Judge for a retrial de novo. No order as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has painstakingly and incisively too, dealt with the issues of “the non-service of the originating process” in the instant action on the Appellant cum “fair hearing” upon which the appeal has been determined. I am in complete agreement with his lordship’s reasoning and conclusions on the said issue(s) and have nothing useful to add thereto.
In the circumstance, I too find the appeal to be meritorious and allow the same. The judgment of the lower court delivered in the instant case on 14/4/2011 is hereby set aside. Furthermore, I agree with the consequential order made in the lead judgment as the denial of fair hearing to a party to a case irredeemably afflicts the whole of the case, with the consequence being that a consideration of the correctness of the decision in the case becomes academic as it were. Lastly, I too order that parties are to bear their own costs.
Appearances
Chief A.P.A. Ogefere (with F.E. Akoko, Esq.)For Appellant
AND
Chike Onyemenam, Esq., (with S.I. Abudei, Esq.,) for 1st Respondent.
Ikechukwu Malebo, Esq., for 2nd & 3rd Respondents.
J.A. Alibor, Esq., for 4th Respondent.For Respondent
