INDEPENDENT NATIONAL ELECTORAL COMMISSION v. DEMOCRATIC PEOPLES PARTY & ORS
(2014)LCN/7154(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of April, 2014
CA/B/166/2013
RATIO
JURISDICTION: PARAMETERS TO GUIDE THE COURT TO DETERMINE WHETHER OR NOT IT HAS JURISDICTION TO ENTERTAIN A MATTER
The paramountcy of the question of the jurisdiction of a court to entertain and determine an action filed before it, is critical and a threshold issue. Hence, there are parameters which would guide the court to know whether or not it has the jurisdiction to entertain the matter before it. These parameters or guidelines are not recondite. They were again re-echoed by the apex court more recently in Nigerian National Petroleum Corporation NNPC & Anor. v. Chief Stephen Orhiowasele & Ors. (2013) 13 NWLR (Pt.1371) 211 at 224 by his Lordship, Rhodes-Vivour, JSC, inter alia:
“The principle which guide a court in determining if it has jurisdiction are:
(a) That the subject matter of the case is within its jurisdiction;
(b) That there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) That the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR P. 341.” PER TOM SHAIBU YAKUBU, J.C.A.
IMPLICATION OF FAILURE TO SERVE HEARING NOTICE ON A PARTY IN A PROCEEDING
Non-service of hearing notice on a party in a proceeding that requires the service of the process is clearly a breach of the party’s constitutional right to fair hearing in the matter and entitles the party to have the proceeding in which his constitutional right has been infringed, set aside as can be seen from the portions of the judgment re-produced above. Also dwelling on the effect or consequence of non-service of hearing notice on a party to a suit where there is need for such service, the Supreme Court in the case of NDUKAUBA V. KOLOMO [2005] All FWLR (Pt.248) 1602 at 1614, or NSCQLR 21 (2005) 25 per Oguntade, JSC; stated at pages 25 – 29 thus:
“In the appeal before the court of Appeal, the appellant did not raise the question of fair hearing as he has now done before us. This court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying departure from the established procedural rule that a matter not agitated before the court below could not be raised before this court………………..
…Appellant’s counsel has argued before us that the proper course open to the trial court was to have adjourned the case and to order that a fresh hearing notice be served on the appellant or at the worst to strike out or dismiss the suit for want of prosecution………… counsel further argued that it was a breach of the appellant’s right to fair hearing as enshrined in the Nigerian constitution for the trial court to have proceeded with the hearing of the case to conclusion without any notice being given to the appellant…………..
The 1st Respondent argued that fair hearing meant no more than a hearing which was fair to both parties. …………… He submitted that a party who faired to avail himself of the opportunity afforded him to defend or prosecute his claim in court could not complain of denial of his right to fair hearing………..
Section 36(1) of the Constitution of the Federal Republic of Nigeria provides:
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner to secure its independence and impartiality.”
The clear elements of section 36(1) above are:
1. There must be a fair hearing.
2. The court or tribunal must be established by law.
3. The adjudicatory process must be conducted within a reasonable time.
4. The adjudicators must be independent and impartial.
The aspect of the above elements under consideration in this appeal relates to fairness of the hearing before the court of trial. The question is: was the appellant’s right to fair hearing of his suit compromised in the proceedings before the trial court? In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 582 at 605, this court per Obaseki JSC considered the nature of this concept of fair hearing thus:
“A hearing can only be fair when all parties to the dispute are given a hearing or opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. ….Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society……”……
…………………………
It is also no argument of wisdom to say that the judgment of the trial court would have been the same even if the appellant has fully participated. The denial of fair hearing to party is often fatal to the judgment of the court, In Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 at 44, this Court per Wali JSC observed:
“It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essentials principles of justice. The decision must be declared to be no decision”The result is that the decision of the trial court and court below confirming that decision must be set aside. The case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.,’PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU 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
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Appellant(s)
AND
1. DEMOCRATIC PEOPLES PARTY
2. MR. CHUKWUMA DAFIKPAKU
3. DELTA STATE HOUSE OF ASSEMBLY
4. THE SPEAKER, DELTA STATE HOUSE OF ASSEMBLY
5. DR. ALPHONUS CHUKWUTEM OJO Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Federal High Court, Asaba delivered by Hon. Justice C. M. A. Olatoregun-Ishola on 01/03/2013 wherein the learned trial judge ordered that the appellant hereiry conduct a fresh election for Ukwuani Constituency of the Delta State House of Assembly. Below are the facts that led to this appeal:
The 5th respondent contested and won in Ukwuani constituency in the Delta State House of Assembly election in the April 2011 election organized and coordinated by the appellant. On 13/09/2012, the 5th respondent wrote to the 1st & 2nd respondents a letter informing them of his resignation from the Democratic People’s Party. The grounds upon which the 5th respondent resigned from the party include division, fractionalization, disaffection and unresolved crises. The DPP, through the party secretary then wrote to the 4th respondent urging him to declare the seat occupied by the 5th respondent vacant.
The 1st and 2nd respondents on 01/11/2012 commenced an action via originating summons before the Federal High Court for the determination of the following questions:
1. Whether under section 109(1)(g) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended, the 2nd Defendant is under an obligation to declare the seat for Ukwuani constituency of the 1st defendant vacant in the light of the 3rd defendant defecting from the 1st Claimant to the Peoples Democratic Party.
2. Whether the 3rd defendant by defecting to the Peoples Democratic Party from Democratic Peoples Party has lost his seat in the Delta State House of Assembly in the light of Section 109 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The 1st and 2nd respondents by the Originating Summons also sought the following reliefs:
1. A Declaration that the seat for Ukwuani constituency of the Delta State House of Assembly has become vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party on the floor of the 2nd defendant on Thursday the 20th Day of September, 2012.
2. An Order compelling the speaker, Delta State House of Assembly to declare the seat for Ukwuani constituency of the Delta State House of Assembly vacant.
3. An Order of perpetual injunction restraining the 3rd defendant from further parading himself as a member of the Delta State House of Assembly on the basis of the House of Assembly Elections held in April, 2012.
4. An Order directing the 4th defendant to immediately commence the process of conducting a fresh election for Ukwuani constituency of the Delta State House of Assembly.
5. An such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The learned trial judge found in favour of the 1st and 2nd respondents and ordered that the appellant commence the process of conducting fresh election for Ukwuani constituency of the delta State House of Assembly.
Aggrieved, the appellant filed a notice of appeal on 17/04/2013. The appellant’s brief of argument was filed on 03/06/2013. The 1st respondent’s brief was filed on 05/09/2013. The 1st respondent’s name was subsequently struck out by the Court on 10/02/2014. The 2nd respondent’s brief was filed on 13/06/2013 while the 3rd & 4th respondents’ brief was filed on 14/06/2013. The 5th respondent filed his brief on 27/06/2013.
The appellant in the brief settled by Ahmed Raji SAN, raised two issues for determination which are as follows:
1. Whether the Federal High Court Per Hon. justice C.M.A. Olatoregun-Isola sitting at Asaba was right to have assumed jurisdiction over the suit and the proceedings thereof in its entirety was not a nullity having regards to the provisions of Sections 251(1) (p) (q) (r) and Section 272(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Whether the proceeding at the trial Court was not in breach of Section 36(1) of the Constitution and not a nullity when the 4th Defendant/Appellant could not defend the Suit on account of non-service of hearing notice for the proceedings which led to the judgment against it.
The 2nd respondent in the brief settled by R. O. Ndugbu Esq. adopted the issues as raised by the appellant. The 1st, 3rd, 4th and 5th respondent conceded to the appeal in their respective briefs settled by E. F. Sarwuan, Augustine Alegeh SAN and Mohammed A. Abubakar, A. B. Sulu Gambari, Adeola Adedipe, Zekeri Garuba, and Ozeigbe Omo-Egharevba (Miss) respectively.
At the hearing of the appeal, the 1st Respondent after adopting its brief, conceded the appeal. The counsel for the 3rd and 4th respondents conceded the appeal while the 5th respondent’s counsel also conceded the appeal. Only the 2nd Respondent opposed the appeal. I will therefore only consider the 2nd Respondent’s brief in opposition to the appellant’s brief in the determination of this appeal.
ISSUE ONE
1. Whether the Federal High Court Per Hon. justice C.M.A Olatoregun-Isola sitting at Asaba was right to have assumed jurisdiction over the suit and the proceedings thereof in its entirety was not a nullity having regards to the provisions of Sections 251(1) (p) (q) (r) and Section 272(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Ahmed Raji SAN of counsel for the appellant on this issue submitted that it is entrenched in our judicial system that a Court must be vested with requisite jurisdiction before adjudicating a case before it. Senior counsel cited Attorney-General Benue State v. Umar (2008) 1 NWLR Pt.1068 Pg.311; Adetona v. I.G. Ent. Ltd. (2011) 7 NWLR Pt.1247 Pg.535; Mobil Producing Nig. Ltd v. LASEPA (2002) 18 NWLR Pt.798 Pg 1. Senior counsel argued that the question to be determined in this appeal is whether the Federal High Court had the jurisdiction to adjudicate over the suit at the trial court. Senior counsel cited Madukolu v. Nkemdilim (1962) ALL NLR 587 and emphasized the conditions for jurisdiction.
Senior counsel submitted that the subject matter of the action at the lower court is not within the jurisdiction of the Federal High Court the subject matter being the question of vacancy of the 4th respondent’s seat in view of his defection to another political party. Senior counsel cited Section 272(3) of the 1999 constitution. Senior counsel argued that by virtue of Section 272(3) of the constitution, except as in exceptions listed in section 251, the State High Court has the jurisdiction in determining the question.
Senior counsel further submitted that the exclusive jurisdiction of the Federal High Court under Section 251 of the Constitution cannot be invoked for the proceeding at the trial court in this appeal except the cause of action therein was brought within the restricted purview of Section 251(1) (p) & (r) of the constitution. Counsel contended further that the cause of action having arisen from the 5th respondent’s defection from DPP to PDP can neither be reckoned as an administrative nor executive action of the Federal Government or any of its agencies. Senior counsel referred to paragraphs 12, 13, 14 & 15 of the Affidavit in support of the originating summons at page 4-5 of the record. Senior counsel cited Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR Pt.1757 Pg.126.
Senior counsel submitted that if the cause of action at the trial court does not come under the purview of section 251(1) (p) & (r) of the constitution, then the exclusive jurisdiction of the Federal High Court will be eroded. He cited Usman v. K.S.H.A (2007) 11 NWLR Pt.1044 Pg.148 at 19. Senior counsel further submitted that where a statute specifically delineates the jurisdiction of a Court over a subject matter, only that court in imbued with requisite jurisdiction to entertain questions of the said subject matter. Counsel cited African Newspapers of Nigeria Ltd v. Federal Republic of Nigeria (1985) 2 NWLR Pt.6 Pg.37; Onyenucheya v. Military Administrator of Imo State (1991) 1 NWLR Pt.482 Pg.429.
Learned appellant’s counsel on this issue finally submitted that the trial court fell in grave error when it assumed jurisdiction simply on the basis that INEC being Federal Government Agency was made a party to the suit. Senior counsel cited Merill Guarantee Savings and Loan Ltd. V. Worldgate Building society Ltd. (2013) 1. NWLR Pt.1336 Pg.581.
Ndugbu Esq. for the 2nd respondent on this issue conceded that jurisdiction is conferred by law. Counsel also conceded that outside the provisions of Section 251 of the Constitution, the Federal High Court has no powers. Counsel cited Adele Kan v. Ecu-Line Investment (2006) 12 NWLR Pt.993 Pg.33 at 52; Achebe v. Nwosu (2003) 7 NWLR Pt. 818 Pg.103. Counsel argued that the appellant has misconceived the position of the law in the case of Tukur v. Govt. of Taraba State (1997) 6 NWLR Pt.510 Pg. 549 cited by appellant.
Counsel argued that the 1st relief before the lower court was for the interpretation of the constitution with respect to the vacancy or otherwise of a seat in the Delta State House of Assembly. Counsel insisted that there is no contention that the 5th defendant now appellant as an agent of the Federal Government is responsible for conducting bye election to fill the vacancy. Counsel submitted that it stands against logic to argue that the relief would not affect the appellant.
Counsel further submitted that it is a claim of the plaintiff that determines the jurisdiction of a court to hear a case and cited Chief Aliu Abu v. Chief Abubakar Zabiri Odugbo (2001) FWLR Pt.69 Pg.1260 at 1297; NEPA v. Edegbenro (2003) FWLR Pt.139 Pg.1556; Oyakhire v. Jen (2000) FWLR Pt.20 Pg 699 at 715. Counsel submitted that no party to this appeal has contended that the appellant is not an agency of the Federal Government.
I cannot understand why parties have decided to complicate an otherwise simple matter. Section 272(3) of the 1999 Constitution provides as follows:
“Subject to the provisions of section 251 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of a House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant”
It is clear that it is only the Federal High Court that has jurisdiction to determine the question as to whether the term of office of the 5th respondent being a member of the Delta State House of Assembly has ceased or become vacant. The fact that S.272(3) is made subject to S.251, is of no moment since there is nothing in S.272(3) that contradicts the provisions of S.251.
It must be noted that “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by, provided that or answerable for. See FRN v. Osahon & Ors. (2006) 2 SCNJ 348. The expression is also used to introduce a condition, a proviso or a limitation and thereby subordinate some provision to another provision. See Philip Ebhota & 3 Ors. v. PIPDC Ltd. (2005) 7 SCNJ 548.Therefore S.272(3) would only bow to the superiority of S.251 where it contradicts the later. That is not the case here. All the arguments of both counsel relating to whether the trial court had jurisdiction in view of the fact that the appellant is an agency of the federal government, in the circumstances of this case, are irrelevant given the special powers conferred on the Federal High Court to determine this specific question by the 1999 constitution. Therefore, so long S.272(3) has not contradicted any of the provisions of S. 251 then the Federal High Court has exclusive jurisdiction in this matter. I am of the firm but humble view that the first issue be and is resolved against the appellant.
ISSUE TWO
Whether the proceeding at the trial Court was not in breach of Section 36(1) of the Constitution and not a nullity when the 4th Defendant/Appellant could not defend the Suit on account of non-service of hearing notice for the proceedings which led to the judgment against it.
Senior learned appellant’s counsel on this issue submitted that if the Federal High Court was incompetent to hear the suit, the entire proceedings at the trial Court will be in breach of Section 36 of the constitution. Senior counsel cited Orugbo v. Una (2000) 16 NWLR Pt.175 pg.199 on the essence of fair hearing and insisted that the trial judge reached his conclusion without hearing the 4th defendant. Senior counsel insisted that no hearing notice was issued on the 4th defendant cum appellant as to notify it of the proceedings and hearing dates. Senior counsel cited Sec. 36 of the constitution; Nwokoro v. Onuma (1990) 3 NWLR Pt.138.
Learned appellant’s counsel submitted that before the hearing of any matter, it beholves the court to ensure that an adverse party who was not present at the last adjourned date be issued hearing notice for the next adjourned date. Senior counsel cited UBA Plc v. Effiong (2011) 16 NWLR Pt.1273 Pg.84; John ASC Ltd v. Mfon (2007) WRN 173; Teno Engineering Ltd. V. Adisa (2005) 10 NWLR Pt. 933Pg.346 at 353. Counsel insisted that the entire proceeding of the trial court was a nullity and cited Iyoho v. Effiong (2007) 11 NWLR Pt.1C44 Pg. 31 at 52; SKEN CONSULT v. Ukey (1981) 1 SC; Odita v. Okwudinma (1969) 1 ALL NLR 228; Obimonure v. Erinnosho (1966) 1 ALL NLR 250.
Learned respondent’s counsel on this issue submitted that in determining fair hearing recourse must be made to the facts of each and every case. Counsel cited Orugbo v. Una (2000) FWLR Pt.127 Pg.1024 at 1037. Counsel argued that the originating summons was served on the appellant more than 60 days before the proceedings complained about and cited Order 7 Rule 1, Order 8 Rule 1 and Order 8 Rule 10 of the Federal High Court Civil Procedure Rules. Learned counsel argued that under the Rules, the appellant had 30 days to enter appearance but that appellant failed to do same till judgment was given. Counsel submitted that the lower court acted within the confines of Order 8 Rules 1 & 10 when she proceeded to hear the suit and deliver judgment.
Respondent’s counsel submitted that there was no legal justification for a party who refuses or fails to utilize the opportunity offered to him to do what the law entitled him to do before a court. Counsel insisted that respondent cannot complain that his right to fair hearing had been breached. He cited Jadcom Ltd. V. Ogun Electricals (2003) FWLR Pt.183 pg.165; Afonja Community Bank Ltd v. Akpan (2003) FWLR Pt.146 pg. 909 at 920. Counsel submitted that considering the facts of this appeal the appellant had not been denied of fair hearing.
Learned counsel submitted that assuming without conceding that the appellant had been denied the right to fair hearing, the appellant can only have the order made against her set aside and not have the entire judgment nullified. Counsel cited Teno Engineering Ltd v. Adisa (Supra).
I have looked at Pages 68-71, of the record which contain the sparse proceedings of the Court on the dates the matter came up for hearing. There is nothing to show on the record that the issue of absence of the appellant as 4th Defendant was brought up by the Court and the reason for its absence known. There is nothing on the record of the court to show that the appellant was served with originating summons to enable it enter appearance to defend itself or the hearing notice for the various adjournments that culminated in the hearing and determination of the suit. It must be clearly stated that it is the duty of every court to ensure that it is vested with procedural and substantial jurisdiction in a matter. The court has to descend to enquires to ensure that all parties have notice of the hearing date and that all processes were served on parties before proceeding to hear the matter listed for hearing. There being no proof that the appellant was given an opportunity to be heard, all orders made against it is null and void as the court lacked jurisdiction to make them. Any penalty for default of appearance can only be visited on the party after the court has satisfied itself that the party had been served with the originating summons and other process of the court. Thus breach of the right to fair hearing renders the proceedings null and void. It is not a mere technicality. See Saraki v. Alsthom S. A. (2005) 1 SCNJ 1; Sosanya v. Onadeko (2005) 2 SCNJ 103; Simon Edibo v. The State (2007) 5 SCNJ 325.
We must remember that at the hearing of the appeal, all the Respondents except the 2nd Respondent conceded the appeal and had nothing to urge against the appeal because of the non service on the appellant. The law is that the party who was not served with Hearing Notice of the proceedings and the processes can set aside whatever order that was made against him ex debito justiciae because the proceedings in any event is a nullity. In Teno Engineering Ltd. v. Adisa (2005) 10 NWLR Pt. 933 Pg.346 at 353, Tobi JSC stated as follows:
“One reason why the respondent did not participate in the proceedings is that he was not served the court process. Service of court process is a precondition to vesting jurisdiction in the court. Where notice of proceedings is required failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent in the exercise of jurisdiction for the making of the order has not been fulfilled. Failure to serve process where service of process is required is a failure which goes to the root of the jurisdiction of the court. Any proceedings in such cases are a nullity. See Sken Consult v. Ukey (1981) 1 SC 6; Odita v. Okwudinma (1969) 1 All NLR 228; Obimonure v. Erinosho (1966) 1 All NLR 250.”
The Appellant was a party on record before the trial court, it should have been given an opportunity to be heard to defend the action even if it were a nominal party. I do not regard INEC as a nominal party in this proceedings. The law does not support the position postulated by the 2nd Respondent’s counsel that the lack of service only infected the order made against INEC and does not affect the whole judgment as the order against INEC can be excised from the other orders made by the trial judge. I am of the view that the lack of fair hearing of one of the parties on record affects the whole judgment.
An important consideration in the peculiar circumstances of this case is that the Appellant cannot be regarded as a nominal party to the proceedings. It is a necessary party whose input or stance of the questions in controversy would have been relevant. The 1999 Constitution and the Electoral Act have given INEC the duties of supervising political parties. In determining the questions thrown up by the cause of action being whether or not the 5th respondent could defect from the party as a result of division in his party and whether the defection in this case could cause him to lose his seat in the Delta State House of Assembly, the INEC is a necessary party. It is INEC that in my view is capable of giving the independent opinion by its supervision of the party as regards whether from facts available to it, there is a division within a political party. The failure to hear INEC is a fundamental flaw in the proceedings at the trial court.
Lack of hearing of one party – especially the party on record vitiates the whole trial as however convincing the case made by the other party or parties served, who were able to make their case, it is after a full consideration of the case made by all the parties on record that the court can make a just determination of the issues in controversy. See PAM v. Mohammed (2008) LPELR 2895 SC; (2003) 16 NWLR Pt.1112 Pg. 1; Forcados Oro Obodo v. Stafford Olomu (1987) 3 NWLLR Pt.59 Pg. 111; Ahangba Ibom & 3 Ors. v. Kulugh Gaji (1997) 6 NWLR Pt.509 Pg. 526. The situation would have been different if the order made by the trial court was against a party not on record, then the order made against such person or entity could have been properly severed and nullified. I am of the view that the decision law supports the opinion that the lack of service of processes and consequently lack of fair hearing has rendered the whole proceedings a nullity. I so hold.
The judgment of Hon. Justice Olatoregun-Ishola delivered on 1/3/2013 in Suit No.FHC/ASB/CS129/2012 is hereby set aside. In the circumstances, the judgment of the trial court is a nullity. This case is remitted back to the Federal High Court for retrial de novo.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA. I am in complete agreement with the manner in which the issues formulated for the determination of the appeal by the Appellant have been resolved given the exposition of the law and reasoning on the issues.
I would however want to also dwell on the Issue of fair hearing raised by the Appellant under its Issue 2 notwithstanding that whatever I say might be a rehash of what his lordship has said in the lead judgment. This is particularly against the backdrop of the divergent positions the joint Claimants before the lower court (herein 1st and 2nd Respondents respectively), have taken on the Issue. The 1st Claimant (i.e. the 1st Respondent in the appeal), like the other Respondents (save the 2nd) apparently conceded Appellant’s issue 2 relating to the breach of the Appellant’s right to fair hearing. This is because the Respondents in question had nothing to urge on this Court in support of the judgment of the lower court. Indeed the Respondents in question including the 1st Claimant before the lower court conceded to the appeal. On the other hand, the position of the 2nd Claimant before the lower court (i.e. the 2nd Respondent) is that the Appellant’s right to fair hearing was not breached given the circumstances of the instant case and that even if it was breached, it is the order made against the Appellant in the judgment of the lower court that should be set aside.
Issue 2 as formulated by the Appellant reads: –
“Whether the proceeding at the trial court was not in breach section of 36(1) of the constitution and not a nullity when the 4th Defendant/Appellant could not defend the suit on account of non-service of hearing notice for the proceedings which led to the judgment against it.”
The relief which the Appellant seeks from this Court is “An Order setting aside the Judgment of the lower court and dismissing the case of the plaintiffs.”
The instant case was commenced by way of Originating Summons wherein the joint Plaintiffs (now 1st and 2nd Respondents) who claimed to be entitled to have the seat of the 3rd Defendant (now 5th Respondent) in the 1st Defendant (now 3rd Respondent) declared vacant by the 2nd Defendant (now 4th Respondent) under section 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, sought for the determination of the following questions:-
“1. “Whether under section 109(1)(g) and (2) of the constitution of the Federal Republic of Nigeria, 1999, As Amended, the 2nd Defendant is under an obligation to declare the seat for Ukwuani constituency of the 1st Defendant vacant in the light of the 3rd Defendant defecting from the 1sr claimant to the Peoples Democratic party.
2. Whether the 3rd Defendant, by defecting to the Peoples Democratic Party from Democratic Peoples Party, has lost his sit in the Delta state House of Assembly, in the light of section 109 of the constitution of the Federal Republic of Nigeria, 1999, As Amended.”
The reliefs sought by the claimants against the Defendants are:-
“1. A Declaration that the seat for Ukwuani constituency of the Delta state House of Assembly has become vacant in the light of the 3rd Defendant defecting from the 1st claimant to the Peoples Democratic party on the floor of the floor (sic) of the 2nd Defendant on Thursday the 20th day of September, 2012.
2. An Order compelling the Speaker, Delta State House of Assembly to declare the seat for ukwuani constituency of Delta State House of Assembly vacant.
3. An Order of perpetual injunction restraining the 3rd Defendant from further parading himself as a member of the Delta state House of Assembly on the basis of the House of Assembly Elections held in April, 2011.
4. An order directing the 4th Defendant to immediately commence the process of conducting a fresh election for Ukwuani Constituency of Delta State House of Assembly.”
It is not in doubt from the records that it was on 29/1/2013 that the lower court entertained the instant case on the merit. The proceedings of the lower court for 29/1/2013 can be found on pages 68 – 69 of the records and same reads thus:-
“NDUGBU: The matter is for hearing. The 1st and 2nd Defendant (sic) filed a counter Affidavit. The 4th Defendant has not responded. We seek to adopt our written address. We urge on the court to also take the written address of the 1st and 2nd Defendants dated 3/12/12 into consideration to which we have filed a reply dated 25/1/13.
EHIGHELUA: we were never served with the originating process. The office of the speaker was served. We filed a counter affidavit on 8th of February, 2013 (sic: proceeding is for 29/1/2013). There is an annexure. We also have a written submission which we adopt. We urge the court to discountenance and strike out the reply on points of law dated 25/1/13 filed by counsel to the Defendant (sic), it amounts to total argument of the whole case. We urge the Court to dismiss the suit.
COURT: Judgment is reserved till 26/2/13. All late filing penalties are to be paid by both parties.”
I have gone through the Briefs of Argument filed by the parties in this Court and it is my considered view that the Appellant made the point that the breach of fair hearing it is complaining about, attached to the proceedings of the lower court on 29/1/2013 when parties before the said court adopted their written addresses. It is the stance of learned senior counsel for the Appellant that the Appellant had no notice of the proceeding held on the said date as no hearing notice was served on the Appellant. It is also the stance of learned senior counsel for the Appellant that the non-service on the Appellant of the hearing notice of the proceeding before the lower court on 29/1/2013, to which the Appellant was entitled, rendered the proceeding before the lower court on the said date to have been conducted without jurisdiction.
I have earlier said that the other Respondents (save the 2nd Respondent who was the 2nd Claimant before the lower court) apparently conceded that the Appellant was not served with the hearing notice of the proceedings of 29/1/2013. The 2nd Respondent whose position is that the Appellant’s right to fair hearing has not been breached in the circumstances of the instant case, has not argued that the Appellant was served with the hearing notice of the proceeding of the lower court that took place on 29/1/2013. Learned counsel for the 2nd Respondent in apparent defence of the statement of the lower court in its judgment to the effect that the Appellant did not defend this case, would appear to have made the point that inasmuch as the Appellant did not file anything/process in response to the Originating Summons, breach of fair hearing was not a magic wand that the Appellant could wave.
The argument of learned counsel for the 2nd Respondent in this regard, in my respectful view, would tend to overlook the fact that an Originating Summons could be opposed on the basis of the supporting affidavit. The non-filing of a response to the Originating Summons would only preclude a party which did not file such response from introducing his own version of facts. The party which did not file a response, can always use the facts deposed to by the initiator of the action in arguing that the said party is not entitled to the reliefs which he seeks on the facts as presented by him. In any event I don’t believe that learned counsel for the 2nd Respondent having regard to his submission is saying that if the hearing notice to which the Appellant was entitled, was duly served on it, the Appellant could not even as at 29/1/2013 have sought for the indulgence of the lower court to properly come into the matter to defend the same. Of course the lower court could always refuse to grant any such indulgence. However all that has been said before now is just to highlight some reasons why it was necessary for the Appellant to have had notice of the hearing date of the instant case and the fundamentality of the service of the process, for the lower court to have properly assumed jurisdiction in the case in which the Appellant was a party on record, but was not served with the notice of hearing of the case.
There are many decisions of the Supreme Court and of this Court as well, on the fundamental nature of the service of hearing notice in respect of a proceeding before a court of law on any party entitled to such service and consequence(s) of the non-service of such a hearing notice on whatever order that is made in the case and indeed on the proceeding itself. The position of the law from the cases is very straight forward. It is that the party that was not served with the hearing notice can set aside whatever order that was made against him ex debito justiciae and that the proceedings in any event is a nullity. See the case of TENO ENGINEERING LTD V. ADISA (2005) 10 NWLR (PT.933) 346 at 353 (cited in the Appellant’s Brief of Argument) where the Supreme Court per Tobi, JSC; stated thus:-
“One reason why the respondent did not participate in the proceedings is that he was not served the court process. Service of court process is a precondition to vesting jurisdiction in the court. Where notice of proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent in the exercise of jurisdiction for the making of the order has not been fulfilled. Failure to serve process where service of process is required, is a failure which goes to the root of the jurisdiction of the court. Any proceedings in such cases are a nullity. See Sken Consult v. Ukey (1981) 1 SC 6; Odita v. Okwudinma (1969) 1 All NLR 228; Obimonure v. Erinosho (1966) 1 All NLR 250.”
In the same case, Edozie, JSC; stated thus: –
“…. Indeed, even after the court below ordered for hearing notice to be issued on the appellant against the sitting of the court on 6/4/96, the court convened and entertained the case in the absence of the appellant and his counsel without ascertaining whether he was served as previously ordered. With the above fundamental lapses in mind, I am of the firm view the appellant was not accorded fair hearing as enshrined in section 33 of the constitution of the Federal Republic of Nigeria, 1979.
In the face of the above findings of the court below against which there is no appeal, it cannot be seriously contended that the conclusion it arrived at is assailable. Failure to serve process in a case where such service is required is a serious omission which goes to the root of the jurisdiction of the court and entitles an aggrieved party ex debito justiciae to have proceedings in such a case set aside. See Odita v. Okwudinma (1969) 1 All NLR 228; Sken Consult v. Ukey (1981) SC 6; Scott Emuakpor v. Ukavbe (1975) 12 SC 41…”
Non-service of hearing notice on a party in a proceeding that requires the service of the process is clearly a breach of the party’s constitutional right to fair hearing in the matter and entitles the party to have the proceeding in which his constitutional right has been infringed, set aside as can be seen from the portions of the judgment re-produced above. Also dwelling on the effect or consequence of non-service of hearing notice on a party to a suit where there is need for such service, the Supreme Court in the case of NDUKAUBA V. KOLOMO [2005] All FWLR (Pt.248) 1602 at 1614, or NSCQLR 21 (2005) 25 per Oguntade, JSC; stated at pages 25 – 29 thus:
“In the appeal before the court of Appeal, the appellant did not raise the question of fair hearing as he has now done before us. This court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying departure from the established procedural rule that a matter not agitated before the court below could not be raised before this court………………..
…Appellant’s counsel has argued before us that the proper course open to the trial court was to have adjourned the case and to order that a fresh hearing notice be served on the appellant or at the worst to strike out or dismiss the suit for want of prosecution………… counsel further argued that it was a breach of the appellant’s right to fair hearing as enshrined in the Nigerian constitution for the trial court to have proceeded with the hearing of the case to conclusion without any notice being given to the appellant…………..
The 1st Respondent argued that fair hearing meant no more than a hearing which was fair to both parties. …………… He submitted that a party who faired to avail himself of the opportunity afforded him to defend or prosecute his claim in court could not complain of denial of his right to fair hearing………..
Section 36(1) of the Constitution of the Federal Republic of Nigeria provides:
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner to secure its independence and impartiality.”
The clear elements of section 36(1) above are:
1. There must be a fair hearing.
2. The court or tribunal must be established by law.
3. The adjudicatory process must be conducted within a reasonable time.
4. The adjudicators must be independent and impartial.
The aspect of the above elements under consideration in this appeal relates to fairness of the hearing before the court of trial. The question is: was the appellant’s right to fair hearing of his suit compromised in the proceedings before the trial court? In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 582 at 605, this court per Obaseki JSC considered the nature of this concept of fair hearing thus:
“A hearing can only be fair when all parties to the dispute are given a hearing or opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. ….Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society……”……
…………………………
It is also no argument of wisdom to say that the judgment of the trial court would have been the same even if the appellant has fully participated. The denial of fair hearing to party is often fatal to the judgment of the court, In Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 at 44, this Court per Wali JSC observed:
“It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essentials principles of justice. The decision must be declared to be no decision”The result is that the decision of the trial court and court below confirming that decision must be set aside. The case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.,’
It is clearly not in doubt that the proceeding of the lower court on 29/1/2013 was afflicted with a breach of fair hearing, a fortiori whatever decision the lower court arrived at based on the proceeding (that is the totality of its judgment and the orders made therein) is afflicted with the same malaise or condition. Breach of any of the principles of fair hearing particularly the breach of fair hearing arising from failure to serve hearing notice on a party that required to be so served; afflicts the proceedings of the court even though it can be said to have arisen from the act of omission or commission in relation to the party not served. That is why the authorities have it that the principle of fair hearing is fundamental to all court procedures and proceedings and that like jurisdiction the absence of it vitiates the proceedings in which it has been breached no matter how well conducted. I do not see how it can be said that all the parties in a proceeding have been given equal opportunity to prosecute and/or defend a case where one of the parties was not served with the hearing notice in respect of the date of hearing of the case/proceeding. After all, the settled position of law is that something cannot be put on nothing.
The situation would have been totally different if the order made by the lower court was against a party not on record. Such an order can be properly severed and nullified. See PAM V. MOHAMMED (2008) LPELR – 2895 (SC) or (2008) 16 NWLR (Pt.1112) 1.
The Appellant was a party on record before the lower court. It was therefore imperative that it ought to have been given notice of the hearing of the proceeding of 29/1/2013 to afford it the opportunity to be heard regarding whatever stance it had in the case no matter how foolish or stupid it could have been. Or even if Appellant’s counsel, would have had nothing to adopt as stated by learned counsel for the 2nd Respondent; this stance was for the Appellant’s counsel to take and it is incomprehensible how this could have been done when the hearing notice in respect of the proceedings whereat “he was to sit down and look on” was not served on the Appellant.
It is in the light of all that has been said above that I do not share the view expressed by learned counsel to the 2nd Respondent that it is only the order made by the lower court in relation to the Appellant that should be set aside. It is my considered view, that it would have been better if learned counsel for the 2nd Respondent in the knowledge (or even on the suspicion) that the Appellant was not served or might not have been served with the hearing notice of the proceedings of 29/1/2013, had withdrawn the case against the Appellant if he was of the view that the Appellant was not a necessary party having regard to the reliefs the joint Claimants were seeking in the case. This would have paved the way for the case to have been heard in the absence or behind the Appellant who would have ceased to be a party on record.
It is in the light of all that has been said above, and the fuller reasons in the lead Judgment that I too resolve Issue 2 in favour of the Appellant and against the 2nd Respondent. Consequently, I too find the instant appeal to be meritorious and allow the same. The proceedings and judgment delivered on 1/3/2013 by the lower court in the instant case (i.e. Suit No.FHC/ASB/CS/129/2012), are therefore set aside given the breach of fair hearing committed by the said court. I also abide by the order made in the lead Judgment remitting the instant case to the Federal High Court for it to be tried de novo by another Judge of that Court.
TOM SHAIBU YAKUBU, J.C.A.: I had read before now, the draft of the judgment prepared and just delivered by my Lord H. M. OGUNWUMIJU, JCA. I am in total agreement with the reasoning and the inevitable conclusion reached in it, that the appeal is devoid of merits and ought to fail, with respect to issue one.
Section 272(3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, provides that:
“Subject to the provisions of Section 257 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of a House of Assembly of a State, a Governor or a Deputy Governor has ceased or become vacant”
Irrefutably, the court below was constitutionally mandated to adjudicate and determine as to whether or not the tenure of office of the 5th respondent, a member of the Delta State House of Assembly had become spent or vacant, by virtue of section 272(3) of the 1999 Constitution. In the circumstances of this case, Section 272(3) of the 1999 constitution compliments section 251 of the 1999 Constitution, therefore the intendment of the former is not in any way limited by the latter. In other words, since Section 272(3) is not at cross purposes with and contrary to Section 251, both of them are on the same page as far as the jurisdiction of the court below is concerned, in determining the matter regarding the tenure of office of the 5th respondent.
The paramountcy of the question of the jurisdiction of a court to entertain and determine an action filed before it, is critical and a threshold issue. Hence, there are parameters which would guide the court to know whether or not it has the jurisdiction to entertain the matter before it. These parameters or guidelines are not recondite. They were again re-echoed by the apex court more recently in Nigerian National Petroleum Corporation NNPC & Anor. v. Chief Stephen Orhiowasele & Ors. (2013) 13 NWLR (Pt.1371) 211 at 224 by his Lordship, Rhodes-Vivour, JSC, inter alia:
“The principle which guide a court in determining if it has jurisdiction are:
(a) That the subject matter of the case is within its jurisdiction;
(b) That there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) That the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR P. 341.”
I am clearly of the considered opinion that the subject matter of the claim at the court below which bordered on the resignation of the 5th respondent from his erstwhile political party – the Democratic peoples’ Party and defecting to the Peoples’ Democratic Party, had not brought his tenure or term of office as a member of the Delta State House of Assembly, to an end; was certainly within the power of the court below, to hear and determine that cause of action. I am unable to see any feature in the action which would have prevented the court below from exercising its jurisdiction over it. The said action was certainly initiated by due process of law.
It is for this few comments and the fuller reasons ably adumbrated in the lead judgment that I too resolve issue one against the appellant.
With respect to issue two, dealing with the question of fair hearing on account of non service of the originating summons, on the appellant, I am in agreement with the resolution of that issue in favour of the appellant, by the reasoning in the lead judgment. It cannot be gainsaid, that service of an originating process on a party is fundamental to the assumption of jurisdiction by a court. Hon. Emeka Okonji V. Hon. Peter Onwusanya (2014) LPELR 22191 (CA); First Bank of Nigeria Plc. V. T.S.A Industries Ltd. (2010) 7 SCNJ 384; The non-service of the originating summons on the appellant, affected adversely, the jurisdiction of the court below, when it adjudicated over the action before it.
I, too resolve issue two in favour of the appellant. Hence the appeal succeeds in part.
Therefore, the order made against the appellant by the learned trial judge is set aside.
Each side shall bear own costs.
Appearances
Ahmed Raji SAN with him O. A. Adeyemi and Kayode OlojoFor Appellant
AND
E. R. Sarwuan for the 1st Respondent
R. O. Ndugbu for the 2nd Respondent.
O. O. Erhahen with him Mrs. G. A. Omenka and Miss E. Aisien for the 3rd and 4th Respondents
M. A. Abubakar with him R. N. Ossai (Miss) and Zekeri Garuba for the 5th RespondentFor Respondent
