IBRAHIM v. UWAKWE
(2022)LCN/16831(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/K/215/2016
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
ALHAJI AHMED IBRAHIM APPELANT(S)
And
CHIMA F. UWAKWE RESPONDENT(S)
RATIO
WHETHER OR NOT SERVICE OF COURT PROCESS IS FUNDAMENTAL PREREQUISITE FOR THE EXERCISE OF A COURT’S JURISDICTION
The Appellant contends that there is nothing on the face of the records to show that he was served with the originating processes, insisting that he was only served with hearing notice; that his right of fair hearing was undermined thereby; and that the jurisdiction of the lower Court was equally impaired. It is merely restating the obvious that service of Court process occupies a pre-eminent position in the scheme of judicial adjudication: it is a fundamental prerequisite for the exercise of a Court’s jurisdiction to entertain, hear and determine a suit. See OKOYE v CENTRE POINT MERCHANT BANK LTD [2008] 15 NWLR (PT. 1110) 335, SGBN LTD v ADEWUNMI (2003) LPELR-3081(SC) and KALU MARK v GABRIEL EKE [2004] 5 NWLR (PT. 865) 54. Non-service impairs the right to be heard or fair hearing, which is a primordial procedural right enshrined in S. 36 of the 1999 Constitution that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination. See EMEKA v OKOROAFOR [2017] LPELR-4173899(SC). It is one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD. (1972) 4 SC 228] and consists of the right to information; the right and/or opportunity to make statements as well as confront other statements made against that person; and the right to have the Court or Tribunal take note of such statements. Indeed, fair hearing before a fair Tribunal is the first test of due process, which cannot be lightly esteemed. Fair hearing is an essential right for a person to secure justice [see OVUNWO v WOKO (2011) LPELR-2841(SC)], thus any judgment or order given against a party who has not been served is one given without jurisdiction, and consequently null and void. In different words, failure to serve Court process is not merely an irregularity, but a fundamental defect that renders the entire proceedings a nullity. See SKENCONSULT NIG. LTD v UKEY (1981) 1 SC 6 and ZALLANI v GUMAI [2020] 2 NWLR (PT. 1709) 452. Especially is this so when the process involved is an originating Court process. PER AFFEN, J.C.A.
THE DISTINCTION BETWEEN FAILURE TO SERVE COURT PROCESSES ON A PARTY AND FAILURE TO ISSUE HEARING FOR THE PURPOSE OF DELIVERY OF JUDGEMENT
It bears pointing out in passing that a distinction exists between failure to serve Court processes on a party for purposes of hearing a case on the one hand, and failure to issue hearing for the purpose of delivery of judgment or ruling on the other hand. Whilst the former is fatal and the ensuing proceedings are a nullity, the latter scenario is treated as a mere irregularity that neither constitutes an infraction of the right to fair hearing nor can the judgment/ruling delivered be said to have been given without jurisdiction or a nullity on that basis insofar as the parties were duly heard or afforded the opportunity to be heard in the proceedings duly served. See CHIME v CHIME [2001] 3 NWLR (PT. 701) 527, (2001) LPELR-849(SC) 1 at 25, COTECNA INT’L LTD v CHURCHGATE NIG. LTD [2010] 18 NWLR (PT. 1225) 346 at 387 –per Galadima, JSC and NNPC v NWAFOR (2017) LPELR-42287(CA).
However, the point to underscore is that the Court’s duty is merely to create the opportunity, enabling environment or atmosphere for litigants to prosecute or defend their cases, and not to ensure that they utilise the atmosphere or environment so created or to wait for them ad infinitum to do so. See NEWSWATCH COMMUNICATIONS v ATTA [2006] 12 NWLR (PT. 993) 144 at 171. The fairness of a trial or proceeding is fact-dependent and each case is assessed on the basis of its peculiar facts and circumstances. See BCCL v IMANI & SHELL (2006) LPELR-786(SC). PER AFFEN, J.C.A.
WHETHER OR NOT WHERE A COUNSEL APPEARS IN COURT AND ANNOUNCES APPEARANCE FOR A DEFENDANT, THE COURT CAN HOLD THAT THE PARTIES APPEARED FOR WAS NOT SERVED
This Court held in IGP & ORS v ADEMOLA (2014) LPELR-23230(CA) 1 at 13 that when a counsel has appeared in Court and announced appearance for a defendant(s), the Court has no reason or justification to turn round and hold that any of the parties the counsel appeared for was not served: that argument is puerile, most unmeritorious and clearly an afterthought. I therefore find and hold that the Appellant (defendant) was duly served with the originating and other Court processes in the suit but opted not to put up any defence, and the lower Court was eminently entitled to enter judgment on the basis of the one-sided evidence flowing from the Respondent’s (plaintiff’s) side alone with nothing on the Appellant’s (defendant’s) side to place on the imaginary scale of justice. See MOGAJI v ODOFIN (1978) 4 SC 91 at 96-97.
As the evidence adduced by the Respondent at the trial was uncontroverted and unchallenged, the onus of proof on him was discharged on minimal proof. See AINA v UBA PLC [1997] 4 NWLR (PT 498) 181 at 189 and AJIDAHUN v. AJIDAHUN [2000] 8 WRN 17 at 28. I find no basis to disturb the judgment of the lower Court. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
The High Court of Kaduna State (coram: H. T. D. Gwadah, J.) entered judgment on 17/1/13 in favour of the Respondent against the Appellant in Suit No. KDH/KAD/312/2007: Chima F. Uwakwe v Alhaji Ahmed Ibrahim. Dissatisfied with the judgment, the Appellant lodged the present appeal vide a notice of appeal filed out of time on 18/11/15, albeit with the leave of this Court granted on 9/11/15. The judgment lies at pp. 108–113 of record of appeal. As enjoined by the rules of this Court, briefs of arguments were filed and duly exchanged. The Appellant’s Brief was deemed properly filed on 8/2/17; the Respondent’s Brief was filed on 9/3/17; and the appeal was argued on 22/11/21.
Issue for determination
The Appellant formulated a sole issue for determination, namely: “Whether the proceedings of the trial lower Court in the absence of service of originating processes on the Appellant tantamount to wrongful and injurious exercise of jurisdiction and breach of fair hearing?”; whilst the Respondent equally identified a sole issue: “Whether the trial learned Judge denied the Respondent his right of fair hearing”. The sole issue identified by the parties condescend on whether or not the Appellant’s right to fair hearing was compromised or undermined in the peculiar facts and circumstances of the case that has given rise to the instant appeal. What cannot escape notice is that the couching or phraseology of the Appellant’s issue takes for granted that non-service of the originating processes on him has already been established, whereas it is at the end of the present exercise that that fact can be ascertained or determined. The point to underscore is that an issue for determination ought not to be conclusory: rather, it is meant to simply narrow down the relevant point(s) in issue by succinctly and clearly projecting the substance of the complaint requiring resolution by a Court or Tribunal. See CHIEF ITSEGHOSIMHE & ORS v CHIEF OGBETA & ORS [2002] FWLR (PT. 88) 862 at 868. In this regard, the Respondent’s issue is preferable and I hereby adopt it determining this appeal.
Appellant’s submission
The Appellant contends that his right to fair hearing was compromised and undermined by the lower Court which failed or neglected to ascertain whether the originating processes (i.e. writ of summons and accompanying processes) were served on him before proceeding to hear the case behind his back and entering judgment against him, insisting that he was only served with a hearing notice at all material times, but not the originating processes. The Appellant maintained that the records reveal that the learned High Court Judge made no inquiry to confirm from the Registry as to whether or not the writ of summons and statement of claim were served, but simply believed the assertion of the lawyer holding brief for the substantive Respondent’s (plaintiff’s) counsel who glibly stated that the Appellant (defendant) was served with the [originating] Court process but failed to enter appearance; that the lower Court ought to satisfy itself that the Appellant (defendant) was served with the originating processes by confirming from the Registry (usually by requesting for proof of service and/or the endorsement and return copy). The Appellant referred to Court proceedings of 18/10/11 at page 92 of the records and maintained that the lower Court merely believed the assertion of counsel holding brief and ordered service of hearing notice on the Appellant (defendant) and adjourned the matter till 1/11/11; that page 93 of the records show that the Appellant who was present in Court on 7/12/12 stated that: “I was served with hearing notice yesterday and I took it to my lawyer who shouted on me ….” but the Respondent’s counsel reiterated that the Appellant was served with both the writ of summons and statement of claim without furnishing the Court with proof of service; and that the lower Court continued with the matter till judgment without deeming it necessary to confirm actual service of the writ of summons and statement of claim from the Registry, insisting that there is nothing on the face of records to show that the Appellant was served with the originating process, and mere service of hearing notice on a defendant is not enough warrant for the lower Court to proceed with the matter and enter judgment. The Appellant submitted that where originating processes are not proved to have been served on the defendant, the lower Court was completely robed of jurisdiction to proceed with the matter and the proceedings, orders and judgment delivered in the matter are void ab initio for want of fair hearing which is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999; and that breach of fair hearing, particularly in trials, vitiates such proceedings and render same null and void, citing SAMBA PETROLEUM LTD & ANOR v U. B. A. & 2 ORS (2010) 4 3 NSCQR 119 at 137 –per Adekeye, JSC. The Appellant’s further submission is that a hearing cannot be said to be fair if any of the parties, particularly the defendant, is not served with the writ of summons and statement of claim which will afford him the opportunity to defend himself by calling witnesses, placing reliance on MILITARY GOVERNOR, IMO STATE v NWAUWA [1997] 2 NWLR (PT 490) 675 and SALEH v MONGUNO [2003] 1 NWLR (PT 801) 221. This Court was urged to answer the sole issue for determination in the affirmative and allow the appeal.
Respondent’s submission
The Respondent’s reaction is that not only was the Appellant (as defendant) served with the originating Court processes, he was represented in Court on 1/11/11 by counsel who equally filed a motion on notice praying for enlargement of time to file memorandum of appearance, statement of defence and witnesses’ depositions on oath on 20/2/12; that it is not the duty of the Court to inquire from a litigant whether or not he was served with Court processes when the said litigant is fully represented by counsel a matter comes up for mention; and that the Appellant was at all material times represented by two counsel who failed, neglected and refused to file the necessary processes in defence of the claim, notwithstanding that the lower Court availed the Appellant all the opportunity to defend the claim by ordering service of hearing notice against every Court sitting. The Respondent submitted that the evidence and materials placed by the Respondent before the trial Court show conclusively that he is was/is entitled to judgment on preponderance of evidence and the learned trial Judge was right in holding that the Respondent had proved his case; that the Appellant’s contention that he was denied fair hearing is a figment of his imagination not borne out by the records and an appellate Court ought not to interfere with the findings of a lower Court which had properly examined and evaluated the evidence, citing OJO v ANONGO (2004) ALL FWLR (PT 218) 934. This Court was urged to resolve the sole issue for determination against the Appellant and dismiss the appeal for being bereft of merit.
Resolution of appeal
The facts undergirding this appeal (as can be gleaned from the record of appeal) are straightforward and by no means complex or convoluted. The Respondent purchased Plot No. B8 Anyoni Road, Angwan Gwari, Kaduna from the Appellant sometime in 2010. The transaction was evidenced by a deed of conveyance dated 23/7/10. In addition to the sales price of N2.3m, the Respondent claimed to have expended a further sum of N1,830,000.00 in developing the land. As things panned out, a rival claimant emerged, and disputed the Appellant’s title to the land. The police and the State Ministry of Lands weighed in on the matter at different times. Official records tended to affirm the title of the rival claimant, whereupon the Respondent took out a writ of summons issued out of the Registry of the lower Court, claiming against the Appellant the declaratory and monetary reliefs endorsed thereon (as well as in the accompanying statement of claim) as follows:
“1. A declaration that the deed of conveyance between the plaintiff and the defendant dated 23/07/2010 is null, void, and without any effect for failure of consideration.
2. An order directing the defendant to refund to the plaintiff the sum of N2,300,000.00k (Two Million Three Hundred Thousand Naira only) which the defendant collected from the plaintiff in consideration of the conveyance of the land lying and situate at No B8 Anyoni road, Angwan Gwari , Kaduna.
3. An order directing the defendant to pay to the plaintiff the sum of N1,830,000.00k (One Million Eight Hundred and Thirty Thousand Naira only) as special damages for money expended by the plaintiff on the development of the land.
4. General damages in the sum of N200,000.00k (Two Hundred Thousand Naira only) against the defendant.
5. Cost of action.”
The record of appeal reveals that notwithstanding that no statement of defence was filed within the time stipulated in the Rules of the lower Court or at all, the lower Court declined the Respondent’s application for judgment in default of pleadings, whereupon the Respondent testified as sole witness and tendered documentary evidence in proof of his case before the lower Court, which eventually entered judgment for the Respondent (plaintiff) on 17/1/13 in the following terms:
“1. It is hereby declared that the deed of conveyance between the Plaintiff and the Defendant dated 23/7/10 is null, void and without any effect for failure of consideration.
2. The Defendant is directed to refund to the Plaintiff the sum of N2,300,000.00 which sum the Defendant collected from the Plaintiff in consideration of land lying and situate at Anguwan Gwari, Kawo, Kaduna.
3. The Defendant is further directed to pay to the Plaintiff the sum of N1,830,000 being special damages for money expended by the Plaintiff on the land.
4. N100,000.00 as general damages against the Defendant, and
5. Cost of the filing fees (sic) as receipted in the sum of N16,050.00 only.”
The Appellant contends that there is nothing on the face of the records to show that he was served with the originating processes, insisting that he was only served with hearing notice; that his right of fair hearing was undermined thereby; and that the jurisdiction of the lower Court was equally impaired. It is merely restating the obvious that service of Court process occupies a pre-eminent position in the scheme of judicial adjudication: it is a fundamental prerequisite for the exercise of a Court’s jurisdiction to entertain, hear and determine a suit. See OKOYE v CENTRE POINT MERCHANT BANK LTD [2008] 15 NWLR (PT. 1110) 335, SGBN LTD v ADEWUNMI (2003) LPELR-3081(SC) and KALU MARK v GABRIEL EKE [2004] 5 NWLR (PT. 865) 54. Non-service impairs the right to be heard or fair hearing, which is a primordial procedural right enshrined in S. 36 of the 1999 Constitution that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination. See EMEKA v OKOROAFOR [2017] LPELR-4173899(SC). It is one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD. (1972) 4 SC 228] and consists of the right to information; the right and/or opportunity to make statements as well as confront other statements made against that person; and the right to have the Court or Tribunal take note of such statements. Indeed, fair hearing before a fair Tribunal is the first test of due process, which cannot be lightly esteemed. Fair hearing is an essential right for a person to secure justice [see OVUNWO v WOKO (2011) LPELR-2841(SC)], thus any judgment or order given against a party who has not been served is one given without jurisdiction, and consequently null and void. In different words, failure to serve Court process is not merely an irregularity, but a fundamental defect that renders the entire proceedings a nullity. See SKENCONSULT NIG. LTD v UKEY (1981) 1 SC 6 and ZALLANI v GUMAI [2020] 2 NWLR (PT. 1709) 452. Especially is this so when the process involved is an originating Court process.
It bears pointing out in passing that a distinction exists between failure to serve Court processes on a party for purposes of hearing a case on the one hand, and failure to issue hearing for the purpose of delivery of judgment or ruling on the other hand. Whilst the former is fatal and the ensuing proceedings are a nullity, the latter scenario is treated as a mere irregularity that neither constitutes an infraction of the right to fair hearing nor can the judgment/ruling delivered be said to have been given without jurisdiction or a nullity on that basis insofar as the parties were duly heard or afforded the opportunity to be heard in the proceedings duly served. See CHIME v CHIME [2001] 3 NWLR (PT. 701) 527, (2001) LPELR-849(SC) 1 at 25, COTECNA INT’L LTD v CHURCHGATE NIG. LTD [2010] 18 NWLR (PT. 1225) 346 at 387 –per Galadima, JSC and NNPC v NWAFOR (2017) LPELR-42287(CA).
However, the point to underscore is that the Court’s duty is merely to create the opportunity, enabling environment or atmosphere for litigants to prosecute or defend their cases, and not to ensure that they utilise the atmosphere or environment so created or to wait for them ad infinitum to do so. See NEWSWATCH COMMUNICATIONS v ATTA [2006] 12 NWLR (PT. 993) 144 at 171.
The fairness of a trial or proceeding is fact-dependent and each case is assessed on the basis of its peculiar facts and circumstances. See BCCL v IMANI & SHELL (2006) LPELR-786(SC).
A peep into the record of appeal reveals that the Appellant (as defendant) was represented by Yemi Adekunle, Esq. of counsel on 1/11/11 and Martins Egboche, Esq. on 21/02/12 and 1/8/12 respectively. On the last date (i.e. 1/8/12), counsel withdrew his representation. However, Egboche, Esq. had earlier filed on behalf of the Appellant a motion on notice dated 20/2/12 praying the lower Court for leave to file memorandum of appearance and statement of defence, which points compellingly to the fact that he was duly served with the writ and statement of claim. If these originating Court processes were not served on the Appellant as alleged, his counsel would certainly not be in any position to file an application for leave to file defence out of time. Counsel would naturally have drawn the Court’s attention to the fact of non-service. It is therefore a rather tall order for the Appellant to contend that he was not served with the writ of summons and statement of claim in these circumstances. This Court held in IGP & ORS v ADEMOLA (2014) LPELR-23230(CA) 1 at 13 that when a counsel has appeared in Court and announced appearance for a defendant(s), the Court has no reason or justification to turn round and hold that any of the parties the counsel appeared for was not served: that argument is puerile, most unmeritorious and clearly an afterthought. I therefore find and hold that the Appellant (defendant) was duly served with the originating and other Court processes in the suit but opted not to put up any defence, and the lower Court was eminently entitled to enter judgment on the basis of the one-sided evidence flowing from the Respondent’s (plaintiff’s) side alone with nothing on the Appellant’s (defendant’s) side to place on the imaginary scale of justice. See MOGAJI v ODOFIN (1978) 4 SC 91 at 96-97.
As the evidence adduced by the Respondent at the trial was uncontroverted and unchallenged, the onus of proof on him was discharged on minimal proof. See AINA v UBA PLC [1997] 4 NWLR (PT 498) 181 at 189 and AJIDAHUN v. AJIDAHUN [2000] 8 WRN 17 at 28. I find no basis to disturb the judgment of the lower Court.
The Appellant’s attempt at flying the kite of breach of fair hearing on appeal seems to me disingenuous. It has become fashionable for litigants to plead fair hearing on appeal as though it is magic wand to cure all inadequacies at the trial Court, but it is thankfully not so and cannot be so. See ORUGBO v ONA (2002) LPELR-2778(SC) at 36-37 –per Niki Tobi, JSC, who equally admonished in ADEBAYO v ATTORNEY GENERAL OF OGUN STATE [2008] 7 NWLR (PT 1085) 201 at 205–206 thusly:
“Learned counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there; they rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of Justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
Having failed or neglected to utilise the environment created by the Court to defend the claim, the Appellant desperately seeks to take refuge under the constitutional guarantee of fair hearing, which is unavailing in the peculiar circumstances of this case. This appeal is destitute of merit, and it will be and is hereby dismissed with costs assessed at N200,000.00 in favour of the Respondent against the Appellant.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead judgment of my learned brother, Peter Oyinkenimiemi Affen, JCA, where the facts and issues in contention have been set out.
I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother PETER. O. AFFEN, JCA and I agree with his reasoning and conclusion that the appeal lacks merit. From the records before the Court it is without any doubt that the Appellant as Defendant at the lower Court was duly served with the originating and other Court processes in the suit. And the Appellant/Defendant opted not to put up any defence. The lower Court was right when it entered judgment in favour of the Respondent/plaintiff based on the unchallenged and uncontradicted evidence before the Court. The old saying is that you can take a horse to the river but you cannot force it to take water. Fair hearing does not amount to hearing at all cost.
The appeal is dismissed and I abide by the consequential order(s) in the lead judgment.
Appearances:
Abbas Yahaya, Esq. For Appellant(s)
A. T. Abubakar, Esq. For Respondent(s)
