HON. ORTESE KPEV TERNA & ANOR. V. UJEGE THERESA A. & ORS.
(2011)LCN/4856(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of October, 2011
CA/MK/EPT/17/2011 (REASONS)
RATIO
ISSUE IN AN APPEAL: WHAT AN ISSUE IN AN APPEAL ENTAILS
Let me say just by the way that an issue in an appeal is the substantial question of law or of fact or both arising from one or more of the grounds of appeal filed. It must also be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to an appeal will entitle it to the judgment of an appellate Court. PER ALI A.B. GUMEL, J.C.A.
NATURE OF APPEAL: WHETHER AN APPEAL IS A CONTINUATION OF THE CASE THAT WAS PRESENTED AND ARGUED BEFORE THE LOWER COURT
I agree and it is correct as pointed out by learned Counsel to the 1st Respondent that an appeal is a continuation of the case that was presented and argued before the lower court and upon which the decision now on appeal was properly founded. I wish to add that an appeal is also not the inception of a new case as it is generally a continuation of the original suit. The rehearing in an appeal merely covers the original case and no more. See OREDOYIN V. AROWOLO (1998) 4 NWLR (Pt. 114) 172 as per Oputa, JSC at p. 211. PER ALI A.B. GUMEL, J.C.A.
SERVICE OF COURT PROCESSES: IMPORTANCE OF THE ISSUE OF SERVICE OF COURT PROCESSES
The issue of service of the processes in a matter, including hearing notice on a day by day basis for a party that was not in Court without its fault, is an essential aspect of our procedural law as it is a jurisdictional issue. It is a condition precedent to the competency of a Court in assuming jurisdiction, and adjudicating over the legal rights of the litigants in the matter. Any matter or proceedings affected by lapse in the service of processes suffers a fundamental defect. This type of defect vitiates the proceedings of a Court and renders it a nullity. See the Supreme Court decisions in SKENCONSULT NIG. LTD AND ANOR V. UKEY (1981) 1 SC 6, AGIP NIG. LTD. V. AGIP PETROLLI INT. & ORS. (2010) 181 LRCN 119 AT 156 AND TSOKWA MOTORS NIG. LTD. V. UBA PLC. 33 NSCQR 33 at 51 – 52. PER ALI A.B. GUMEL, J.C.A.
JUSTICES
MUHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. HON. ORTESE KPEV TERNA
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. UJEGE THERESA A.
2. PEOPLES’ DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RETURNING OFFICER, KONSHISHA STATE, CONSTITUENCY
5. RESIDENT ELECTORAL COMMISSIONER INEC, BENUE STATE
6. ELECTORAL OFFICER, INEC KONSHISHA LOCAL GOVERNMENT
7. THE COLLECTION OFFICER, INEC KONSHISHA LOCAL GOVERNMENT
8. THE SUPERVISORY PRESIDING OFFICER IKURAV/MBATWER COUNCIL WARD
9. THE SUPERVISORY PRESIDING OFFICER, INEC MBAGUSA/MBATSER COUNCIL WARD
10. THE SUPERVISORY PRESIDING OFFICER INEC, MBAKYASE COUNCIL WARD.
11. THE SUPERVISORY PRESIDING OFFICER INEC, TWARNYAM COUNCIL WARD
12. THE SUPERVISORY PRESIDING OFFICER INEC, MBAKE COUNCIL WARD.
13. THE SUPERVISORY PRESIDING OFFICER INEC, MBANOR COUNCIL WARD
14. THE SUPERVISORY PRESIDING OFFICER INEC, MBATEM/TSE AGBERAGBA COUNCIL WARD
15. THE SUPERVISORY PRESIDING OFFICER INEC, MBAWAR COUNCIL WARD
16. THE SUPERVISORY PRESIDING OFFICER INEC, MBAVAA COUNCIL WARD
17. THE SUPERVISORY PRESIDING OFFICER INEC, MBATSEN COUNCIL WARD
18. THE SUPERVISORY PRESIDING OFFICER INEC, MBAYEGH/MBAKYERN COUNCIL WARD Respondent(s)
ALI A.B. GUMEL, J.C.A. (REASONS FOR THE JUDGMENT): On 17th October, 2011, I allowed this appeal and made some consequential orders. I indicated then that I would give my reasons at a future date. I now do so today.
This is an appeal against the ruling of the National/State Houses of Assembly Elections Tribunal established for Benue State. Sitting in Makurdi delivered on 17th August, 2011 in Election Petition No. NSHA/EPT/BN/HA/44/2011.
The 3rd Respondent (INEC) organized and conducted election for seats in the Benue State House of Assembly on 26th April, 2011. The 1st Appellant was the candidate of the 2nd Appellant for the Konshisha Constituency of the Benue State House of Assembly. The 1st Respondent was the sponsored candidate of the 2nd Respondent for the said election. There was also 3 other candidates sponsored by various other political parties. Out of these 5 candidate, the 4th Respondent, acting on behalf of the 3rd Respondent returned the 1st Respondent on the 27th April, 2011 as the winner of the election. The Appellants were dissatisfied with the declaration of the result of the election and return of the 1st Respondent as the winner.
Upon this dissatisfaction, the Appellants filed an election petition dated 16/05/2011 on 18/05/2011. This petition is predicated on 2 main grounds with very copious facts in support of the grounds based on which diverse main and alternative reliefs were sought. Issues were duly joined by the parties. With the seeming conclusion of pleadings, the Petitioners/Appellants filed a motion on notice on 5/08/2011 for issuance of pre-hearing notice, Learned Counsel to the 1st and 2nd Respondents/Respondents opposed this application and urged on the lower Court to refuse it.
In a ruling dated 17/08/2011, the lower Court refused the application for issuance of pre-hearing notice and relied on paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010, as amended to dismiss the petition for having been abandoned. The Appellants were dissatisfied with this order of the lower Court and appealed against it in a notice of appeal dated 23/08/2011 but filed on 25/08/2011. This notice of appeal is predicated on 4 grounds of appeal. Later, the Appellants abandoned grounds 3 and 4 of the grounds of appeal. So, this appeal was argued as a single issue formulated out of grounds 1 and 2 of the grounds of appeal.
To argue the appeal, the Appellants filed an amended brief of argument dated and filed on 13/10/2011 but deemed properly filed and served on 14/10/2011, wherein a single issue was formulated thus:-
-Whether pleading had closed as at the dated when the Tribunal dismissed the Appellants’ petition as an abandoned petition.
The 1st Respondent opposed this appeal in a brief of argument dated and filed on 6/10/2011. Related to this brief, learned counsel to the 1st Respondent filed a notice of preliminary objection seeking to challenge the competence of the appeal on 7 grounds. This notice of objection was argued in the 1st Respondents brief of argument. Further, and ex-abundante cautela, learned Counsel to the 1st Respondent formulated and argued a single issue out of grounds 1 and 2 for the determination of this appeal. This issue is:-
– Having regard to the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended, the fact that election Petition matters are sui generis and the pleadings filed in Petition No. NHSA/EPT/BN/EPT/REP/44/2011 when did the time start to run for the purpose of filing application for pre-hearing session in this petition?
On behalf of the 2nd Respondent, learned Counsel filed a brief of argument on 10/10/2011. Learned Counsel formulated and argued 2 issues in this brief of argument. They are:-
(a) Whether or not personal service of the Petitioners’ replies to the 1st and 2nd Respondents’ replies to the Petition on the 3rd -18th Respondents was necessary having regard to the fact that the records of the Tribunal clearly shows that the Petitioners had no intention whatsoever of prosecuting the petition against 5th – 18th Respondents who were ab initio not even served with copies of the petition by reason of the fact that the petitioners did not furnish their addresses for service of the foot of the petition as required by law and the added fact that the 3rd and 4th Respondents who were duly served with the petition did not enter any appearance or file any process whatsoever before the Tribunal ; and
(b) Whether or not the Tribunal below was justified in dismissing the petition based on the facts placed before it by the Petitioners/Appellants.
The brief of the 3rd – 18th Respondents is dated and filed on 14/10/2011. It raised and argued a single issue for the determination of this appeal thus:-
– Whether the Application for the issuance of pre-hearing notice was filed within the statutory time allowed by the Electoral Act 2010, as amended and the Honourable Tribunal was right to have dismiss (sic) the petition as amended (sic) petition.
I have carefully read and considered each of the issues formulated by respective learned Counsel. The issue formulated by learned Counsel to the 1tt Respondent referred to Petition No. NHSA/EPT/BN/REP/44/2011. This is strange. No such petition is relevant in the instant appeal. The 1st issue formulated by learned Counsel to the 2nd Respondent, with the greatest respect to him, is very clumsy and highly inelegant as to be meaningless and unhelpful to a proper determination of this appeal. It is so unattractive. Let me say just by the way that an issue in an appeal is the substantial question of law or of fact or both arising from one or more of the grounds of appeal filed. It must also be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to an appeal will entitle it to the judgment of an appellate Court. I do not find the 1st issue formulated by learned Counsel to the 2nd Respondent to even remotely satisfy this well accepted definition of an issue in an appeal. The issue formulated on behalf of the 3rd – 18th Respondents, shorn of its noticeable inaccuracies, appears to be nearest to the issue formulated by the Appellants. I would therefore take it as it is. This appeal will be determined by the lone issue formulated in the amended brief of the Appellants.
At the hearing of the appeal learned Counsel Chief Ashiekaa, for the 1st Respondent drew our attention to preliminary objection challenging the competence of this appeal. It is dated 5/10/2011 but filed on 6/10/2011. Further to this, learned Counsel also drew our attention to a notice he filed pursuant to 0.9 r.2 of the Court of Appeal Rules, 2011. It is accompanied by a written address. It seeks for an order of this Court affirming the ruling of the lower Court on other grounds. Also, according to Chief Ashiekaa of Counsel, the notice of preliminary was argued of pages 3 to 8 of the 1st Respondent’s brief of prurient. He then adopted and relied on this part of the 1st Respondent’s brief of argument in urging this Court to uphold the notice of objection and dismiss this appeal.
In response, learned Counsel Mr. Uggah for the Appellants referred to, adopted and relied on the reply brief dated 10/10/2011 but filed on 12/10/2011 in urging this Court to dismiss the notice of preliminary objection and proceed to hear and determine this appeal on the merits. And for the appeal proper, learned Counsel Mr. Uggah adopted and relied on the amended brief of the Appellants deemed filed on 14/10/2011 and urged this court to allow this appeal and set aside the ruling of the lower court dismissing the Appellants’ petition as having been abandoned.
In continuation of the hearing of this appeal respective learned counsel to the Respondents each took his turn to adopt and rely on his identified brief of argument and each urged on this court to dismiss this appeal and affirm the ruling of the lower Court dismissing the petition of the Appellants. Before going to the merits of this appeal, and as is customary, I would like to in the first place focus my attention and energy on the preliminary objection of the 1st Respondent.
The preliminary objection is predicated on the following 6 grounds. They are-
(1) The issue of whether or not pleadings had closed in this petition in that the 3rd to 18th Respondents had not yet been served with the petition raised in ground one of the appeal never arose of the trial Tribunal and the Petitioners/Appellants is raising that issue for the first time before the Court of Appeal.
(2) The issue of service of the petitioners’ reply on the 1st and 2nd Respondents on the 1st of August, 2011 and non service of the same process on the 3rd to 18th Respondents raised in ground 2 of the appeal never arose at the trial Tribunal and the Appellants are raising it for the first time before the Court of Appeal.
(3) The issue of costs complained of in ground 3 of the appeal is a complaint against the exercise of discretion of the trial Tribunal which requires leave of the Court of Appeal for a competent appeal to be filed against some and such leave has not been first sought and obtained therein and thus such ground of appeal and the issue distilled there from is incompetent.
(4) The Petitioners/Appellants never sought leave of the trial Tribunal nor of the Court of Appeal to raise the new issues complained of in grounds 1 and 2 of the appeal and thus these grounds of appeal and the issues distilled there from are incompetent.
(5) The Petitioners/Appellants have not formulated any issue in respect of grounds 3 and 4 of the grounds of appeal therefore they are deemed abandoned and should be struck out.
(6) Where all the grounds of appeal are incompetent as in this case, the appeal itself is incompetent and liable to be struck out. Let me quickly observe and point out that learned Counsel to the Appellants graciously conceded that grounds 3 and 4 of the appeal do not add up. He, without much hesitation, abandoned them and concentrated his attention on grounds 1 and 2. In his attack on grounds 1 and 2 learned Counsel Chief Ashiekaa explained that they raise new issues which were not canvassed at the lower Court. While referring to the case of ADEOGUN V. FASHOGBON (2011) 8 NWLR (Pt. 1250) 427 at 453, Chief Asiekaa pointed out that the law is that an Appellant must be consistent and maintain his case through the hierarchy of Courts and to that extent he urged this Court to strike out grounds 1 and 2. Learned Counsel referred to other decided cases in support of the principle of practice that in an appeal a party must confine his case to what it pleaded and prosecuted at the trial Court. He added further that it must be understood that an appeal is on extension of the case from the Court below and does not admit of fresh facts and/or issues, except with the leave of the appellate Court. According to learned Counsel, since issue 1 was formulated out of grounds 1 and 2 and to the extent that these grounds raise fresh issues, this issue must be struck out for having been formulated out of incompetent grounds of appeal. He added that because no leave was sought to raise fresh issues on appeal grounds 1 and 2 are incompetent are liable to being struck out. He urged this Court to so hold and accordingly strike them out along with issue one from where they were formulated.
In his response of page 2 of the Appellant’s reply brief to the brief of the 1st Respondent, learned Counsel merely maintained that the lone issue formulated by the Appellants was properly distilled out of grounds 1 and 2. He added further that these grounds strictly arose out of the ruling of the lower Court on the interpretation and application of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended. He referred to the case of ODON V. BARIGHA – AMANGE (No.2) (2010) 12 NWLR (Pt. 1207) 12. He referred to the case and emphasized that grounds 1 and 2 did not raise any new issues to necessitate on application for leave before this Court.
I agree and it is correct as pointed out by learned Counsel to the 1st Respondent that an appeal is a continuation of the case that was presented and argued before the lower court and upon which the decision now on appeal was properly founded. I wish to add that an appeal is also not the inception of a new case as it is generally a continuation of the original suit. The rehearing in an appeal merely covers the original case and no more. See OREDOYIN V. AROWOLO (1998) 4 NWLR (Pt. 114) 172 as per Oputa, JSC at p. 211.
For purpose of clarity, I wish to reproduce grounds 1 and 2 in this appeal with all their copious particulars they are:-
1. The decision of the trial Tribunal dismissing the petition for non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) is incompetent and a nullity since service was yet to be effected on the 3rd – 18th Respondents in the petition.
Particulars
(a) There is no proof of service in the record of the petitioner’ reply on 3rd – 18th Respondent as at 17/08/2011 when the Tribunal dismissed the petition for non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended).
(b) There is proof of service on 2nd Respondent and 1st Respondent Petitioners’ Reply on 1st August 2011.
(c) The Petitioners’ application for issuance of pre-trial conference notice was filed on 5/8/2011 within 7 days of service on 1st and 2nd Respondents.
2. The trial Tribunal erred in law in dismissing the petition prematurely when by the provisions of paragraph 18 of the 1st Schedule to the Electoral Act 2010 (as amended) –
(a) Paragraph 18(1) aforesaid stresses 7 days after the filing and service of the petitioners’ reply on the Respondents
(b) The petitioners’ reply was filed on 11th July 2011 and served on 1st and 2nd Respondents on 1st August 2011 while 3rd – 18th are yet to be served,
(c) It was premature for the trial Tribunal to dismiss the petition based on objections on points of law contrary to paragraph 18(2) (a) and 7(d) of the 1st Schedule to the Electoral Act 2010 (as amended).
(d) And this error occasioned a serious miscarriage of justice to the Appellants.
In order to resolve this question property it is necessary to go back to the ruling of the lower Court in this appeal. I consider the following parts of the ruling significantly helpful. After referring to paragraphs 4(d) and (e) of the affidavit of the Petitioners/ Applicants/Appellants, the lower Court observed thus:-
“The question therefore is, was the application for the issuance of pre-hearing notices filed within 7 days after the filing and service of the Petitioners’ reply on the Respondent? – – -“(Page 222).
After a review of the established facts on its record the lower Court did some arithmetical calculations of dates, referred to 2 decided cases and pointed out that the application for issuance of pre-hearing notice was out of time. The lower Court also found that there was no application for extension of time. Against this background, the lower Court decided that:-
“There has thus been no compliance with paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (No. 6), as amended. – – the application is refused. The petition itself which is Petition No. NSHA/EPT/BN/HA/44/2011 is also hereby dismissed as abandoned petition.” (See page 223 record of appeal).
A consideration of this record of the lower Court, in my view, leaves no one in any doubt that the compliant of the 1st Respondent on grounds 1 and 2 is without any basis or foundation. I hold that grounds 1 and 2 do not raise fresh issues and are valid and competent grounds of appeal in the circumstance and con of the ruling of the lower Court in this appeal. Grounds 3 and 4, having been formally abandoned are struck out. The preliminary objection totally lacks merit and it is herby dismissed. With respect to the merits of this appeal, I have fully considered the arguments of respective learned Counsel and the most outstanding question remains as formulated in the issue for determination by learned Counsel to the Appellants. The answer to this question must be founded by a scrutiny of the proceedings of the lower Court during which the petition was dismissed. From an examination of the record of appeal, the petition was dismissed in the course of the proceedings of the lower Court on 17th August, 2011. These proceedings commenced from page 220 to 224 of the record of appeal. It is of interest to also consider the events that led to the proceedings of 17/08/2011. It is therefore helpful and indeed significant to consider the proceedings of the lower Court from 06-07-2011 up to the proceedings of 10-08-2011. I now reproduce these proceedings from page 216 to page 221 of the record of appeal.
06-07-2011
1st Petitioner is present. Others are absent.
Representation
M. T. Assoh Esq. appears for the Petitioner.
C.A. Gbehe Esq. appears for the Respondents with S. A. Udogo, Esq.
M. T. Assoh Esq. We have not been served with any of the replies.
C. A. Gbehe Esq. We have filed our replies and we even filed a notice of preliminary objection.
TRIBUNAL: This case is adjourned to the 11th day of July 2011 for motions.
Sgd: Sgd: Sgd:
Member 1. Chairman. Member 2.
06/07/2011 06/07/2011 06/07/2011
11 – 07 – 2011
1st Petitioner is present.
Representation:
M.Z. Iorkyaa Esq. for the Petitioners, appearing with Tombowua Esq.
C. A. Gbehe Esq. appears with P.U. Adagi Esq.for the 2nd Respondent
M. Z. Iorkyaa Esq: The reply of the 1st Respondent was served on us on the 6th of July, 2011. Other Respondents are yet to serve us with their replies.
C. A. Gbehe Esq We have filed our reply.
M.Z. Iorkyaa Esq. We have been served with the motion on Notice on the 6th July, 2011.
M.Z. Iorkyaa Esq. We have now been served.
TRIBUNAL: This matter is adjourned to the 22nd day of July, 2011 for mention.
Sgd: Sgd: Sgd:
Member 1. Chairman Member 2
11/07/2011 11/07/2011 11/07/2011
22-07-2011
Petitioner is present. Others are Absent.
Representation:
M.Z. Iorkya Esq appears with S.T. Iorhemba Esq. for the petitioners.
J.S.T. Anchaver Esq. appears for the 1st and 2nd Respondent with S. A. Udogo Esq.
No appearance for the 3rd Respondent.
M.Z Iorkyaa Esq: We have filed our replies to the 1st and 2nd Respondents reply. We also filed our counter-affidavit and a written address to the motion dated 24/06/2011 filed by the 2nd Respondent.
J.S.T. Achaver Esq: The 1st Respondent has been served with the reply. The 2nd Respondent has not been served with the Reply filed by the petitioners in reply to the 2nd Respondents reply. The counter-affidavit and written address of the petitioner has not been served on both 1st and 2nd Respondents.
TRIBUNAL: This case is adjourned to the 27th day of July, 2011 for mention.
Sgd: Sgd: Sgd:
Member 1 Chairman Member 2
22/07/2011 22/07/2011 22/07/2011
27-07-2011
Parties are absent.
Representation:
M.Z. Iorkyaa Esq. appears for the petitioners.
S.A. Udogo Esq. appears for 1st Respondent with Henkyaa Esq. And Adagi Esq. for 2nd Respondents
S.A. Udogo Esq: The replies of the Petitioner to the replies of the 1st and 2nd Respondents have not been served up till now. We ask for cost of N20,000.00 (twenty thousand naira) if the matter is to be adjourned.
M.Z. Iorkyaa Esq: The Respondents have not been served. This is not a deliberate act.
TRIBUNAL: This case is adjourned to the 1st day of August, 2011 for report of service. The petitioners shall pay N10,000.00 (Ten thousand Naira) as cost to the 1st and 2nd Respondents.
Sgd: Sgd: Sgd:
Member 1 Chairman Member 2
27/07/2011 27/07/2011 27/07/2011
01-08-2011
1st Petitioner is present. 1st Respondent is present. Others are absent, Representation:
M.A. Iorkyaa Esq. appears for the petitioners
S.A. Udogo Esq. appears with M.T. Kachina Esq. for the 1st and 2nd Respondents
S.A. Udogo Esq:
I have here been served with the Petitioners’ reply to 1st Respondents reply.
M.Z. Iorkyaa Esq:
We will apply for a date for the issuance of the pre-hearing forms.
TRIBUNAL: This case is adjourned to the 8th day of August, 2011 for mention.
Sgd: Sgd: Sgd:
Member 1 Chairman Member 2
01/08/2011 01/08/2011 01/08/2011
08/08/2011
Petitioners are present. Others are absent
Representation:
M.Z. Iorkyaa Esq. appears for the petitioners
S. A. Udaga Esq., appears with M.T. Kachina Esq. for the 1st and 2nd Respondents
S.A. Udaga Esq:
I have here been served with the Petitioners’ reply to 1st Respondents reply.
M. Z. Iorkyaa Esq:
We will apply for a date for the issuance of the pre-hearing forms.
TRIBUNAL: This case is adjourned to the 8th day of August, 2011 f or mention.
Sgd: Sgd: Sgd:
Member 1 Chairman Member 2
01/08/2011 01/08/2011 01/08/2011
08/08/2011
Representation:
M.Z. Iorkyaa Esq. appears for the petitioners
S.A. Udaga Esq. appears with P.U. Adagi Esq. for 1st and 2nd Respondents.
3rd Respondent is not represented.
M.Z. Iorkyaa Esq: We have filed an application to pray for issuance of pre-hearing Notice. We filed it on the 5th of August, 2011.
S.A. Udaga Esq: We need time to react to it.
TRIBUNAL: This matter is adjourned to the 10th day of August, 2011 for motion filed on the 5th day of August, 2011 and dated the same day.
Sgd: Sgd: Sgd:
Member 1. Chairman Member 2
08/08/2011 08/08/2011 08/08/2011
10/08/2011
Representation:
M.Z. Iorkyaa Esq. appears for the petitioner.
S.A. Udogo Esq. appears for the 1st Respondent with P.U. Adagi Esq.
J. S. T. Anchover Esq. appears for the 2nd Respondent.
No appearance for the 3rd Respondent.
M.Z. Iorkyaa Esq: We have not received anything from the 3rd Respondent. We filed a motion for the issuance of prehearing notices dated 5th of August. It is on notice. It has been served on the 1st and 2nd Respondents. 1st Respondent has responded. The 3rd Respondent is not participating in these proceedings. He did not file anything.
The 1st Respondent filed a written address opposing the motion. I have up to tomorrow to reply on points of law. I was served yesterday.
I was also served with a motion seeking to dismiss this application. I have three days to reply. I wish to ask for an adjournment to reply S.A. Udogo Esq: We served him the processes yesterday. We have no objection. He has three days to react.
J.S.T. Anchover Esq: We filed our written address on the 9th of August, 2011. We have just served the petitioner. We will not be opposing the application.
TRIBUNAL: Having regards to the fact that the learned Counsel for the Petitioner has just been served with the motion filed on the 9th of August, 2011 and reactions to his own motion, this case is adjourned to the 17th day of August, 2011 for the motion filed on the 5th of August, 2011 and other motions.
Sgd: Sgd: Sgd:
Member 1. Chairman Member 2
10/01/2011 10/01/2011 10/01/2011
17/01/2011
1st Petitioner and 1st Respondent are present others are absent.
Representation:
M.Z. Iorkyaa Esq. appears for the Petitioners.
S.A. Udogo Esq:. We were served with a counter-affidavit to the motion dated 8th August, 2011 and filed on the 9th of August, 2011. We were served with the counter-affidavit yesterday. We intend to react to the counter-affidavit.
M.Z. Iorkyaa Esq: We filed a motion on the 5th day of August, 2011 apply for pretrial Information Sheet. 1st and 2nd Respondents attacked the motion on point of Law.
J.S T. Anchover Esq: We filed an application on the 24th of June, 2011 dated the same day. The Petitioner filed a counter-affidavit on the 13th of July, 2011 against the motion.
S.A. Udogo Esq: We filed an application on the 9th of August, 2011 dated the 8th day of August, 2011. There is a counter affidavit to that motion dated the 11th day of August 2011.
M.Z. Iorkyaa Esq: We have an application filed on the 5th day of August, 2011. It was filed on the same day. It is brought pursuant to paragraphs 18(1) and 47(2) and (3) of the 1st Schedule.
It prays for issuance of pre hearing Notices. It is supported by an affidavit of 7 paragraphs. There is a written address in support. We rely on the affidavit and adopt the address as our argument. There is no counter-affidavit.
1st and 2nd Respondents opposed the application on points of law. The petitioners reply to 1st and 2nd Respondents on points of Law. We adopt our replies on points of law and urge the Tribunal to accede to the petition in the interest of justice.
S.A. Udogo Esq: We are opposed to the grant of the application. We filed a written address dated the 8th day of August, and filed on the 9th of August. We rely entirely on the facts deposed to by the petitioners.
In paragraph 4(d) of their affidavit they deposed to the date of the closure of pleadings.
This application was filed on the 5th day of August, 2011. This being the situation, the application f or pre-hearing is ought to be filed seven day after. We adopt our address. We rely on it.
J.S.T. Anchover Esq: We also filed our written address to the application. We did not file a counter-affidavit. The reply is irreconcilable with their affidavit. We urge that the application be refused.
I wish to now do an appraisal and analysis of the proceedings of the lower Court. For the proceedings of 06-07-2011, the 3rd – 18th Respondents were not in Court and yet the Court proceeded as if they were present and/or represented by Counsel. At the end of those proceedings an adjournment was made to 11-07-2011 without any order for Hearing Notice to issue on the 3rd – 18th Respondents. During the proceedings of 11/07/2011, the 3rd – 18th Respondents were still not present in Court and were not represented by Counsel, probably because they were not aware of any such proceedings. An adjournment of the matter to 22-07-2011 was ordered on 11-07-2011. The proceedings of 22-07-2011 ended with an adjournment to 27-07-2011 and then 01-08-2011 and then to 08-08-2011. On all these adjourned dates the business of the Court continued without any concern about the absence of the 3rd – 18th Respondents and without any order for issuance of hearing notices or any finding on record that hearing notices had somehow been served on them.
It is significant to note that during the proceedings of 08-08-2011, for the first time the lower Court noted formally that “3rd Respondent is not represented”. The matter was adjourned to 10-08-2011 still without any order for hearing notices to issue on the 3rd – 18th Respondents. Further to this, on 10-08-2011, the Court still noted “no appearance for the 3rd Respondent”. How about the 4th – 18th Respondents also being absent for the proceedings of 08-08-2011 and 10-08-2011. Full proceedings took place on 10-08-2011 when the matter was adjourned to 17-08-2011. No order for the issuance of hearing notice to the 3rd – 18th Respondents was made for the proceedings of 17-08-2011. It was in the course of the full proceedings of 17-08-2011 where respective learned Counsel took turns to address the Court that the petition in this appeal was dismissed. With the greatest respect to their Lordships of the lower Court, this is a great and profound blunder and a total negation of all the well-known procedural safeguards anchored on and in support of the constitutionally guaranteed right to fair hearing.
The proceedings of the lower Court are on abdication of judicial decorum. There was thus a very fundamental defect in the proceedings leading to the dismissal of the petition herein. Proper proceedings in the circumstance of this appeal required the lower Court to make a finding if, at least, the 3rd and 4th Respondents had been served with both the originating and subsequent processes in this matter. (The Petitioners/Appellants had omitted to provide address for service on 5th – 18th Respondents.)
The issue of service of the processes in a matter, including hearing notice on a day by day basis for a party that was not in Court without its fault, is an essential aspect of our procedural law as it is a jurisdictional issue. It is a condition precedent to the competency of a Court in assuming jurisdiction, and adjudicating over the legal rights of the litigants in the matter. Any matter or proceedings affected by lapse in the service of processes suffers a fundamental defect. This type of defect vitiates the proceedings of a Court and renders it a nullity. See the Supreme Court decisions in SKENCONSULT NIG. LTD AND ANOR V. UKEY (1981) 1 SC 6, AGIP NIG. LTD. V. AGIP PETROLLI INT. & ORS. (2010) 181 LRCN 119 AT 156 AND TSOKWA MOTORS NIG. LTD. V. UBA PLC. 33 NSCQR 33 at 51 – 52.
Because of the inherent defect in the proceedings of the lower Court it is not possible for this Court to give a favourable consideration to the Respondents’ notice filed on behalf of the 1st Respondent. Also, because the proceedings leading to the dismissal of the petition suffer from a fundamental defect and remain a nullity to that extent no legal effect or consequence could arise therefrom. The Respondent’s notice filed pursuant to O.9 r. 2 of the Court of Appeal Rules 2011 is hereby struck out for being incompetent. This appeal is hereby allowed. The ruling of the lower Court of 17-08-2011 dismissing the Appellants’ petition is hereby set aside. The petition is hereby remitted to the lower Court for hearing and determination on the merits before another panel. My attention has been drawn to a slight slip in the judgment delivered on 17-10-2011, where reference was made to the restored petition being heard and determined by “the same panel.” The proper order I really meant to make was, for the petition to be heard and determined by “another panel.” I have now corrected this error occasioned by a slip of my pen.
Appearances
Mr. G.A. Uggah,
Mr. J.K.
Mnda and Mr. T.A.R. TombowuaFor Appellant
AND
Chief E.K. Ashiekaa,
Mr. I.N. Nomishan,
Mr. S.A. Udaga,
Mr. J.S.T. Anchaver
Mr. E.P. Echor, holding the brief of Mrs. N.D. TerFor Respondent
