MR GODSON CHIDI ANYANWU V. MR. SAMUEL EKE & ORS. (2008)

MR GODSON CHIDI ANYANWU V. MR. SAMUEL EKE & ORS.

(2008)LCN/3003(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of December, 2008

CA/PH/EPT/10/2008

RATIO

ESSENCE OF THE SERVICE OF COURT PROCESS

The essence of service of processes, particularly originating processes, is audi alteram partem as enshrined in section 36 (1) of the 1999 constitution. The object of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires, that which is claimed against him. See KIDA v. OGUNMOLA [2006] 13 NWLR (Pt. 997) 377 at 393 F – G. Therefore service of court process is crucial and fundamental. Failure to serve process deprives the court of the necessary competence and jurisdiction to hear the suit. KIDA v. OGUNMOLA [supra] at 394 – 395. Per EJEMBI EKO, J.C.A

FAIR HEARING: FUNDAMENTALITY OF THE SERVICE OF COURT PROCESS ON THE DEFENDANT

JUSTICES

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

MR GODSON CHIDI ANYANWU Appellant(s)

AND

1. MR. SAMUEL EKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE ELECTORAL OFFICER (ETCHE LGA)
4. THE RESIDENT ELECTORAL COMMISSIONER RIVERS STATE
5. THE RETURNING OFFICER ETCHE CONSTITUENCY 1 Respondent(s)

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting at Port Harcourt, delivered on the 4th December, 2007 in which the petition of the Appellant was dismissed on the ground of irregularity or lack of personal service of the originating process on the 1st Respondent.
The facts of the case as can be gathered from the records are that on the 14th day of April, 2007, election was conducted for all the states Houses of Assembly in the country. The Appellant and the 1st Respondent were candidates on the platform of their various political parties, Action Congress (AC) and Peoples Democratic Party (PDP) respectively.
The Appellant who came a distant 5th position with only 86 votes as against the 1st Respondent 36,613 votes was aggrieved by the return of the 1st Respondent and consequently filed a petition against the Respondents on the 12/05/07 before the said tribunal.
The originating process of the petition was alleged not to have been served on the 1st Respondent as required by law. The 1st Respondent’s Solicitors obtained photocopies of the petition, entered conditional appearance, filed a reply out of time and before the hearing of the petition raised a preliminary objection as to the competence of the petition and the jurisdiction of the Tribunal to entertain the said petition.
The Notice of Preliminary Objection reads in part thus:
“TAKE NOTICE that this Honourable Tribunal shall be moved on the … day… May be heard on the motion praying for the following reliefs:
1. AN ORDER granting leave to the Appellant to move this motion as a matter of extreme circumstance;
2. AN ORDER dismissing this petition for want of jurisdiction.”
The ground upon which the relief is sought is:
(a) That the originating processes in the petition were not served at all on the 1st Respondent as required by the Electoral Act, 2006.”
It is instructive to note that in response to the above reproduced preliminary objection, the Appellant claimed that the 1st respondent was served with the processes Arguments were taken by the Tribunal and after a thorough consideration of the issues raised by the parties, the Tribunal found as fact thus:
“Hearing having not yet commenced, we hold on the authorities cited here above that the objection was filed within a reasonable time as required by paragraph 49 (2) of the 1st Schedule of the Act, this issue is also resolved in favour of the Applicant.
Accordingly, the preliminary objection is sustained and the Petitioner’s petition is hereby dismissed for lack of personal service on the 1st Respondent/Applicant.”
Expectedly, the Appellant, on the 13/12/07 approached this Court with a Notice of Appeal which carries three grounds. He filed and distilled from it a sole issue for determination as follows:
“Whether the Tribunal was right in dismissing the petition in its entirety for lack of personal service on the 1st Respondent.”
On the 14th of October, 2008 when the appeal came before us for hearing, Counsel for the parties adopted their briefs. Mr. Eke whilst adopting his brief dated 25/01/08 and filed the same date submitted that the appeal is predicated on the interpretation of paragraph 8 of the 1st Schedule to the Act. He referred the Court to the case of Nwogu & Ors v. INEC, CA/PH/EPT/525/07 (unreported) delivered on 24/04/08 and urged us to allow the appeal.
Mrs. Otuka, who held the brief of Mr. Godfrey (Esq.) adopted the brief of the 1st Respondent dated 31/03/08 but deemed filed by the order of this Court on 7th April, 2008. Similarly, Dr. Nwaogbe adopted the brief of the 2nd to 5th Respondents which was wrongly headed as 2nd to 5th Respondents’ reply Brief. Needless to say, by our Rules, Respondents do not file reply briefs. Be that as it may, the said brief dated 22/01/08 and filed on 25/04/08 was deemed properly filed and served by the Order of this Court, on 07/05/08.
As alluded to in the course of writing this judgment, the Appellant distilled one issue for determination; the 1st respondent did not formulate any issue for determination but adopted the said issue as distilled by the Appellant. Counsel for the 2nd to 5th Respondents, though claimed to have formulated one issue for determination, in actual fact he adopted the sole issue as distilled by the Appellant.
Learned Counsel for the Appellant from the onset submitted that election petitions are sui generis and in considering them the criteria applicable are not exactly the same as those applicable in other civil cases’ proceedings. He relied on the case of Obi-Odu v. Duke (No.2) (2005), 10 NWLR (Pt. 932) p. 105 at 148 to buttress his submission on this point. He further submitted that the Electoral Act, 2006 as well as relevant provisions of the Constitution is the paramount legislations for consideration in determining election petitions. He relied on the case of A.D. v. Fayose (2005) 10 NWLR (Pt. 932) p. 151 at 238 -9.
Learned Counsel stated that with respect to service of an election petition, the Electoral Act, 2006 makes the following provisions in the 1st Schedule thereof:
“Paragraph 6 of the 1st Schedule:
For purpose of service of an election petition on the Respondents, the Petitioner shall furnish the secretary with the address of the Respondents’ abode or the addresses of places where personal service can be affected on the Respondents’ Paragraph 7 of the 1st schedule:
On presentation of an election petition and payment of the requisite fees, the Secretary shall forthwith;
a) cause notice, of the presentation of the election petition, to be served on each of the respondents;
Paragraph 8 of the 1st Schedule:
(1) Subject to paragraph (2) and (3) of this paragraph, service on the Respondents:
(a) Of the documents mentioned in subparagraphs (1) (a) of paragraph 7 of this Schedule; and
(b) of any other documents required to be served on them before entering appearance, shall be Personal.”
Learned counsel, after quoting from several paragraphs of the Appellant’s affidavit and the counter-affidavit of the 1st Respondent, submitted that the lower Tribunal (though with respect) was in grave error when it held that it was the duty of the Appellant to personally effect the service of the petition on the 1st Respondent and the (Appellant) was in breach of that duty.
It is the further submission of the learned Counsel that the lower Tribunal was in grave error when it came to the above conclusion. The Electoral Act, 2006 does not place any such duty on the Appellant with respect to service of the petition. The duty placed on the Appellant he posited are set out in paragraphs 3 (4), 4 (4) (5) and (6) of the 1st Schedule to the electoral Act, 2006. We were urged to hold that there is nothing in those provisions to suggest that the Appellant is saddled with the task of personally effecting the service of the petition on the 1st Respondent. It is the submission of the learned Counsel that by a literal interpretation of the above provisions of the Electoral Act, the only duty placed on the Appellant for the purpose of service on the Respondents is to furnish the Secretary of the tribunal with the address of the place(s) where personal service can be effected on the Respondents. He referred us to paragraphs 6 and 7 of the 1st Schedule to the Electoral Act, 2006 in support of his submission.
Learned Counsel submitted that even in ordinary civil proceedings where personal service is not effected on the Defendant (or Respondent) what is usually set aside is the service or the proceedings commenced thereof. The originating process is not usually dismissed but fresh and proper service is ordered as well as a retrial or a trial de novo. To appreciate this, the Court is respectfully urged to consider the final order made in the following cases some of which were relied upon by the lower tribunal in dismissing the petition. He referred us to the Dehuwa v. Adeniran (2003) 17 NWLR (Pt. 849) and Chevron v. Warri North LGA (2003) 5 NWLR (Pt. 812) P. 28 at 31. Learned Counsel referred us to the case of PDP V. Adeyemi (2002) 10 NWLR (Pt. 776) p. 524 and submitted that a party who makes an application whatsoever to the Court, be it merely an application for extension of time or delivery of statement of defence has taken steps in proceedings. That being the case, learned Counsel argued that it is difficult to see how the lower tribunal could hold that the objection was filed within reasonable time as required by paragraph 49 (2) of the 1st Schedule to the Act regard being had to the fact that the 1st respondent had filed and argued his motion for extension of time, deposited his reply and participated fully at the pre-hearing session. Learned Counsel urged us to resolve the lone issue in favour of the Appellant and allow the appeal.
For his part, learned Counsel for the 1st Respondent began his consideration of the issues involved in this appeal by submitting that the lower Tribunal was right in dismissing the petition of the Appellant in its entirety for lack of personal service on the 1st Respondent in that the Electoral Act, 2006 which by virtue of Section 151 shall regulate the procedure to be adopted in election petition, and appeals makes personal service on a Respondent a mandatory requirement. He referred us to paragraph 8 (1) (a) (b) (c) of the Schedule to the said Electoral Act in support of his submission.
It is the submission of the learned Counsel that the service of the originating process is the responsibility of the Petitioner. A duty which he cannot absolutely shift to the Court bailiff. This is because the duty placed on the secretary of the tribunal by paragraph 7 (1) (a) of the 1st Schedule to the Electoral Act 2006 is not to serve the petition on the respondents himself, rather “to cause notice of presentation of the petition to be served on the Respondents.” It is submitted that the service of the petition itself by the Petitioner precedes the service of notice of presentation of the petition by the Secretary of the Tribunal.
The learned counsel concluded his submission on this point by further submitting that what the secretary of the Tribunal is enjoined to do is to cause to be served on the Respondents a Notice of Presentation of the petition and not the petition per say.
It is the submission of the learned counsel that it is not the duty of the Respondent to prove non-service of the originating process on him but rather, that of the Petitioner. The duty is discharged by calling oral evidence of the Bailiff who purportedly served the processes. Because, the position of the law is that, the question as to whether an originating process has been served or not, is a question of fact, of which oral evidence can be given. The best evidence for the proof of service of Court process is either the unconditional appearance of the defendant or the oral evidence of the bailiff or other witnesses who were present when the service was effected. See the case of Mohammed v Mustapha (1993) 5 NWLR (Pt. 292) p. 222 @ 225 Ratio 4 and 5.
Learned Counsel for the 1st Respondent urged us to resolve this sole issue in favour of the 1st Respondent and dismiss the appeal as lacking in merit.
Counsel for the 1st Respondent submitted that the lower Tribunal was right in dismissing the petition in its entirety for lack of personal service on the 1st Respondent. Learned Counsel concurred with the learned Counsel for the Appellant to the extent that election petitions are “sui generis” but the same Electoral Act made provisions for resort to applicable Civil Procedure Rules, where efforts to effect personal service has failed. He referred to paragraph 8 (2) of the 1st Schedule to the Electoral Act, 2006.
It is the contention of the learned Counsel that the title of paragraph 8 of the 1st Schedule to the Electoral Act, 2006 is personal service on Respondents. This alone, the learned Counsel contended further is a mandatory provision for personal service on Respondents. This therefore creates awareness that personal service on election petition matters is a condition precedent before the commencement of hearing. He referred us to the cases of Justin Effiong v. Elder Ebon Ikpeme & Ors (1999) 6 NWLR (Pt. 606) p, 260 at 263, Ratio 3 and Mohammad Buhari & 2 Ors v. Chief Olusegun Obasanjo & 2 Ors (2003) 15 NWLR (Pt. 843) p. 236 at 244 – 245, Ratio 7.
Learned Counsel further submitted that by virtue of the paragraph 8 (1) (b) of the 1st Schedule to the Electoral Act, 2002 now 2006, service of process in election petition shall be personal.
In the instant case learned Counsel opined the Petitioner did not comply with the above provision thereby rendering the petition incompetent, null and void. We were urged to resolve the only issue for determination in favour of the Respondents and dismiss the appeal for being unmeritorious.
In considering, the lone issue for determination, my first port of call is. Paragraph 7 (1) of the Schedule to the Electoral Act which Provides thus:
“7(1) On the presentation of an election petition, and payment of the requisite fees, the Secretary shall forthwith:
(a) cause notice of the presentation of the election petition, to be served en each of the Respondents;
(b) post on the tribunal notice board, a certified copy of the election Petition; and
(c) set aside a certified copy for onward transmission to the Person or persons required by law to adjudicate and determine the election Petition. (Underlining supplied for emphasis).
A cursory look at the provision of the reproduced paragraph of the Schedule of the Act (supra) would leave no one in any doubt that what the Secretary of the Tribunal is enjoined to do, is to cause to be served on the Respondents a Notice of Presentation of the petition and not the petition per say. I am of the view that it still regains the obligation of the Petitioner to serve his petition on the Respondents personally contrary to the submission of the learned Counsel for the Appellant.
However, that it not the end of the matter’ Paragraph 8 (3) of the Schedule to the Electoral Act’ provides thus:
“The proceedings under the election petition shall not be vitiated not withstanding the fact that:
(a) The respondents or any of them may not have been served personally; or
(b) A document of which substituted service has been effected pursuant to an order made under subparagraph (2) of this paragraph did not reach the Respondent, and in either case, the proceedings may be heard and continued or determined as if the respondents or any of them had been served personally with the document and shall be valid and effective for all purposes.”
The provisions of the Electoral Act reproduced (supra) are unambiguous and self-explanatory. No aid is required for its interpretation. It is now settled law that when interpreting statutes; words as used by the legislature must be given their plain meaning so as not to lead to any absurdity. See the case of Nafi’u v. The State (1980) N.S.C.C. Volume (12) p. 291. I hasten to say that given their plain meaning as used in the said paragraphs, lack or non-personal service on a Respondent will not lead to the dismissal of an election petition and I so hold. See the case of A. C. & Ors v. Mr. Collins Ordu (unreported) Appeal No. CA/PH/EPT/524/2004), (a decision of the Court of Appeal of this Division) per Garba, JCA, delivered on 10th day of July, 2008.
It is instructive to observe that the provisions of paragraph 8 (1) thereof begin with the following words, “subject to sub-paragraph (2) and (3) of this paragraph, service on the Respondents… It is trite that in law whenever a statutory provisions open with the words “subject to”; it simply means that what follows subject to are exceptions to the statutory provisions in question. See PTF V. WPC Ltd. (2007) 14 NWLR (Pt. 1055) p. 478 and NPA v. Eyamba (2005) 12 NWLR (Pt. 939) p. 409. (Underlining supplied for emphasis).
Based on the foregoing, I must agree with the submission of the learned Counsel for the Appellant when he submitted thus:
“It follows therefore that the implementation of the provisions of paragraph 8 (1) (upon which the Tribunal hinged its decision) is subject to the Tribunal’s powers under paragraphs 8 (2) & (3) Consequently, where a petition is not personally served on a Respondent as required by paragraph 8 (1), the Tribunal acting under 8 (2) can direct substituted service on that Respondent or under 8 (3) proceed to hear and determine the petition as if the Respondents or any of them was personally served.”
It is noteworthy to note that the words “Notwithstanding” which appears in paragraph 8 (3) aforesaid, when used in a statutory provision, has been judicially defined to connote/mean exclusion to any impending effect (impediment) in any other provision(s) in the same statute or other subordinate legislation. See Obi v. INEC (2007) 11 NWLR (Pt. 565) p. 636 – 7, NIDC v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) p. 107 and Ebhota v. P.T. & P.D. Ltd. (2005) 15 NWLR (Pt. 948) p. 226.
Again, the provision of paragraph 49 (1) of the Schedule to the Electoral Act Provides thus:
“(49) (1) Non compliance with any of the provisions of this Schedule, or with a rule of practice for a the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deems fit and just.
(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
It is very clear from the foregoing provisions that for an Applicant to succeed in setting aside proceedings in an election petition which is sui generis, the Applicant must file his petition within a reasonable time and must also not take fresh steps in the proceedings after knowledge of the defect. See the case of Effiong v. Ikpeme 2 (1999)6 NWLR (Pt. 606) p. 260 and PDP v. Adeyemi (2002) 10 NWLR (Pt.276) P.524.
In the former case, this Court per Obadina, JCA, held that since the Appellant in this case has effectively participated in the proceedings, he was caught by the provisions of paragraph 50 (2) of Schedule 5 to Decree No. 36 of 1998 and in the latter it was held that a party who makes an application whatsoever to the Court, be it merely an application for extension of time or delivery of statement of defence has taken steps in the proceedings. Needless to say provision of paragraph 50 (2) of Schedule 5 to Decree No. 36 of 1998 are in pari materia with the provision of paragraph 49 (2) of the 1st schedule to the Electoral Act. (Underlining supplied for emphasis).
Now, the questions to be asked are these, can it be said that the application of the Appellant was filed within a reasonable time and that he did not take any fresh steps after becoming aware of the defect. To answer these two questions, recourse had to be made to the affidavit evidence fired by the litigants to this action.
In the supporting affidavit filed along with his Notice of Preliminary objection to dismiss the petition for lack of personal service, one Chidinma Otuka, a legal practitioner deposed on behalf of the Applicant then but 1st Respondent in this appeal as follows:
“(a) That the Petitioner filed this petition on the 12/05/07 as shown at the foot of the petition.
(b) That the originating processes were never served on the Applicant personally by the petitioner.
(c) That it was a member of the Rivers State House of Assembly, by name Emmanuel Okatta, who informed the Applicant that a petition was pending against him before this Honourable Court.
(d) That the Applicant consulted his solicitors of Powers and Partners who conducted a search of the Tribunal’s Registry to confirm that actually the Petitioner had filed a petition against the Applicant and the said solicitors quickly entered an appearance under protest on the 19/06/07.
(e) That it was from the office of the 2nd-5th Respondents that the Applicant’s solicitors made photocopies of the originating processes of the petition filed in this Tribunal.
(f) That up till this moment, the Applicant has no original copies of the Petitioner’s originating processes in this case as none was served on him.
In a counter affidavit filed to controvert the contents of the supporting of affidavit sworn to by the 1st Respondent now and Petitioner then, the 1st Respondent inter alia averred thus:
“(4) On the 12/05/2007, I presented this petition at the Registry of the tribunal and duly filed same with the Secretary of the Tribunal.
(5) On the body of the Petitioner, I duly furnished the Secretary of the tribunal with the address of the place where personal service could be effected on the 1st Respondent/Applicant amongst others.
(6) I also paid all the requisite fees charged (including fees for service of the petition on the 1st Respondent) to the Registry of the Tribunal and was issued Receipt No. 2004187658 in acknowledgement thereof.
(7) I offered to further assist the bailiff of the tribunal by taking him to the 1st Respondent’s said address but the officials at the Registry of the Tribunal informed me and I verily believed it to be correct that the Bailiff will effect the service on the 1st Respondent.
(10) On the 19/06/2004, (sic) the 1st Respondent through his Counsel entered a conditional appearance to the Proceedings.
(11) On the 11/07/04, (sic) the 1st Respondent filed a motion on Notice seeking an extension of time to file his reply to the petition and for same to be deemed as duly filed and served and these prayers were granted on the 09/08/07 whereof issues were joined between me and the 1st Respondent.
(12) On the same 09/08/07, argument was taken on whether or not time should be enlarged for 2nd-5th Respondents to file their appearance and rely (sic) to the proceedings and the 1st Respondent participated actually through his Counsel.
(13) At the further pre-hearing sessions, arguments were taken on the objection of the 2nd to 5th Respondents to the competence of the petition and the jurisdiction of the Court to entertain the matter and the 1st Respondent through his Counsel participated actively again.
(14) The 1st Respondent also participated in the proceedings when a motion for judgment in default of appearance/pleadings as well as another one for amendment both of which were at my instance were taken and decided by the Honourable Tribunal.
(15) Throughout the period beginning from 19/06/07, 11/07/07 and 09/08/04 (sic) when he entered appearance, filed his reply and joined issues with me on the proceedings until the end of the pre-hearing sessions, the issue of irregularity of service of the processes was never raised by the 1st Respondent.
(16) When the pre-hearing sessions came to an end, the 1st Respondent who was represented by his Counsel agreed that the parties should file issues for determination and the matter be adjourned for hearing.
(17) The averments in paragraph 4 of the affidavit are false, I did not dump petition or any process with the clerk of the Rivers State House of Assembly, service was effected on the 1st Respondent by the Bailiff of the tribunal who swore to an affidavit of service to that effect.”
The contents of the two affidavits (supporting and counter) reproduced in exteso (supra) have clearly brought out the following salient facts:
“(1) That the petition sought to be dismissed for lack of personal service was filed on 12/05/07.
(2) That the 1st Respondent through his Counsel entered a conditional appearance on 19/06/04 (sic).
(3) That on 11/07/07 (sic) 1st Respondent filed a motion seeking for an extension of time to file his reply.
(4) That on 09/08/2007 arguments was taken on whether or not to extend the time as applied.
(5) 1st Respondent participated in the proceedings when a motion for judgment was filed in default of appearance.
(6) 1st Respondent through his Counsel participated in all pre-hearing sessions.”
In the light of the foregoing, the two questions posed a while ago must be answered in the affirmative. For avoidance of any doubt, I hold that the 1st Respondent did not file his Notice of Preliminary objection within a reasonable time and not only that he participated actively in the proceedings after becoming aware of the defect. The sole issue is therefore resolved in favour of the Appellant and against the Respondents.
In sum and for all the reasons given, this appeal is pregnant with a lot of merit and same is therefore allowed. The decision of the lower Tribunal contained in the ruling delivered on the 4th December, 2007 in respect of the Appellant’s petition is hereby set aside. That petition is ordered to be heard and determined on its merit by another Tribunal to be constituted by the Hon. President of this Court.
The Appellant is entitled to costs which I assessed at N30, 000.00 to be paid by the 1st Respondent.

SULEIMAN GALADIMA, J.C.A: I have had the benefit of reading in draft the judgment of my Learned Brother ABDULLAHI, JCA, just delivered. I entirely agree with his reasoning and conclusions. I abide and subscribe to all the consequential orders, including costs, made by my learned Brother.

EJEMBI EKO, J.C.A: The Appellant was the Petitioner in the petition No. EPT/SA/5/2007 before the Governorship/Legislative Houses Election Tribunal holden at Port Harcourt (hereinafter called the Tribunal). On 4/12/2007 the Tribunal sustained the 1st Respondent’s preliminary objection filed on 30/10/2007 (PP 138 – 146 of the records) and consequently dismissed the petition “for lack of personal service on the 1st Respondent/Applicant”. Aggrieved by this dismissal order the Petitioner/Appellant on 13/12/2007 filed this appeal on three grounds of appeals the three grounds, without their particulars, are:-
1. The learned Justices of the Tribunal erred in law when inspite of the redemptive provisions of paragraphs 8(3) and 49(4) of the 1st Schedule to the Electoral Act, 2006, it proceeded to dismiss the Appellant’s petition on the ground that same was not personally served on the 1st Respondent.
2. The learned Justices of the Tribunal erred in the part of their decision where they held that the onus was on the Appellant to show that the 1st Respondent had been personally served with the petition in spite of the affidavit of service filed by the Tribunal’s Bailiff
3. The learned Justices of the Tribunal misdirected themselves in law when they held that the 1st Respondent did not voluntarily submit to the Tribunal’s jurisdiction, notwithstanding the fact that the 1st Respondent had filed his reply to the petition and had sufficiently participated in the proceedings before raising the objection.
The 1st Respondent filed memorandum of Conditional Appearance to the petition on 19/6/2007 at pages 32 – 33 of the record. On 11/7/2007 he filed, through his counsel as usual, application for extension of time within to file his reply to the petition at pages 71 – 82 of the record. In paragraph 5 of the supporting affidavit it was averred on behalf of the is Respondent –
5. That I was informed by the 1st Respondent that he was not served the originating processes of this court personally by the Petitioner as required by the Electoral Act.
That is the reason he advanced for the delay in not filing his Reply in time. The application was granted. His reply attached to the motion was deemed filed and served.
The 1st Respondent gave insight into how he came to file the memorandum of conditional appearance to the petition in the affidavit supporting his preliminary objection which he filed on 30/10/2007 Paragraph 3(b) – (f) of the supporting affidavit say it all. They aver-
3. That I have been informed by the 1st Respondent/Applicant and I verily belief [sic] him as follows-
(b) That the originating processes were not served on the Applicant personally by the Petitioner,
(c) That it was a member of the Rivers House of Assembly, by name Emmanuel Okatta, who informed the Applicant that a petition was pending against him before the Honourable Tribunal
(d) That the Applicant consulted his solicitors of Powers & Partners who conducted a search of the Tribunal’s registry to confirm that actually the Petitioner had filed a petition against the Applicant and the said solicitors quickly entered appearance under protest on 19/6/2007
(e) That it was from the office of the 2-5th Respondents that the Applicant’s Solicitors made photocopies of the originating processes of the petition filed in this Tribunal
(f) That up till this moment, the Applicant has no original copies of the Petitioner’s originating processes in this case as non [sic] was served on him.
The 1st Respondent consulted his counsel and he was duly advised by the counsel before he undertook all these steps and others thereafter.
The 1st Respondent, through his counsel, participated actively in the proceedings of the Tribunal from 28/6/2007 up to the time it dawned on him to file this motion on 30/10/2007, in the various applications, including those of the Petitioner for amendment of the petition and of the 2 – 5th Respondents for extension of time to file their reply. For instance on 28/6/2007 the record shows 1st Respondent’s counsel as stating:
We are not out of time. We entered appearance on the 19/6/2007. We are preparing our reply very soon.
On 6/7/2007 the same counsel for 1st Respondent urged the Tribunal to strike out the motion filed by the Petitioner. On 9.7.2007 the same counsel stated inter alia –
“The business of the court today was for the adjournment we had on the 28/6/2007 to regularize our processes. Couple of the processes have been served on me this morning by the 2-5th Respondents, my reply thereto is being processed.
The 2-5th Respondents has also filed his preliminary objection and save (sic) on me this morning. We apply for an adjournment to 13/07/2007.”
The 1st Respondent and his counsel also successfully with other respondents convinced the Tribunal to refuse petitioner’s application to amend his petition.
There were no less than 13 adjournments before 30/10/2007. 1st Respondent’s counsel participated in the proceedings on all the occasions. I do not think that it can be denied that the 1st Respondent, from the date he entered his conditional appearance to the petition on 19/6/2007 to the time [30/10/2007] when he filed this preliminary objection on grounds of non personal service of the petition on him, has taken steps in the petition. Paragraph 49 [1] and [2] of the 1st Schedule to the Electoral Act provide –
49. [1] Non compliance with any of the provisions of this schedule, or with a rule of practice for the time operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or court may deem fit and just.
(2) An application to set aside an election petition or a proceeding resulting therefore for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after the knowledge of the defect.
A party, who though aware of a procedural defect takes steps to participate in the proceedings is deemed to have waived the defect and estopped from complaining of it. See EFFIONG v. IKPEME (1999) 6 NWLR [pt.606] 260 at 272.
I have no doubt the 1st Respondent had become aware of the “defect” in the petition, i.e. the fact that that he was not personally served the petition, from or before the moment he entered the conditional appearance on 19.6.2007. He actively participated in the proceedings notwithstanding his knowledge of the defect until 30/10/2007 – more than four [4] months after when he filed the objection on grounds of the said defect. He did not file the objection to the petition within a reasonable time. He did so after he had taken fresh and active steps in the petition for more than 4 months after becoming aware of the defect. Equity acts in personam. Is it therefore not unconscionable on his part to raise this objection belatedly. I think it is.
The essence of service of processes, particularly originating processes, is audi alteram partem as enshrined in section 36 (1) of the 1999 constitution. The object of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires, that which is claimed against him. See KIDA v. OGUNMOLA [2006] 13 NWLR (Pt. 997) 377 at 393 F – G. Therefore service of court process is crucial and fundamental. Failure to serve process deprives the court of the necessary competence and jurisdiction to hear the suit. KIDA v. OGUNMOLA [supra] at 394 – 395. All these rules are intended to protect the right to fair hearing. These rules are not absolute. It is not in every situation that failure to serve originating process personally on the defendant vitiates the proceedings. For instance when, as in the instant case, the defendant or the respondent is aware of the processes and had on his own gone to obtain them and thereafter took steps to defend the action on its merits. That in my view is an exception.

Fair hearing is a fundamental right. Service of process on the defendant to enable him become aware of the action against him in order for him to take steps to defend himself is an aspect of fair hearing. Fundamental rights that are for the sole benefit of the private individual can be waived.
See ARIORI v. ELEMO [1983] 1 SCNLR 1. These include the right to be served originating process when the defendant on his own initiative, upon becoming aware of the process, takes steps to obtain the process himself and thereafter file his defence to the claims therein.
It is paragraph 8 [1] of the 1st Schedule to the Electoral Act that enjoins the 1st Respondent to be personally served the petition. That provision is expressly made “subject to sub paragraphs [2] and [3] of” paragraph 8. Sub paragraph [3] is very clear. Notwithstanding the fact that the respondent was not personally served the process the proceeding will not be a nullity or vitiated if there is no substantial miscarriage of justice to the respondent. In the instant case can the 1st Respondent say he suffered any injustice? He can not. He became aware of the petition through a friend. He commissioned his solicitors to find out. They confirmed and went further to make photocopies of the petition served on 2-5th Respondents and on that basis filed his defence or reply to the petition. In the circumstance failure to serve the petition personally on the 1st Respondent should have been treated as a mere irregularity which could be waived since it had not occasioned any injustice to the 1st Respondent. The manner the 1st Respondent got the petition should have become secondary since in actuality the petition had reached the 1st Respondent and he was aware of it or had notice of it. The 1st Respondent by paragraph 3 of the supporting affidavit, part of which I earlier reproduced, admits this fact. This should have prompted the Tribunal to invoke paragraph [1] of the 1st Schedule to the Electoral Act to cure whatever deficiencies there may have been in the mode the 1st Respondent got knowledge and possession of the petition. On facts similar to the instant case M. L. Garba JCA in ACTION CONGRESS v. COLLINS ORDU [unreported CA/PH/EPT/524/2007 of 10th July, 2008] stated and I agree that
The Tribunal did not require any application for enlargement of time for substituted service before resort could be had to the provision of paragraph 49(1). Since the eventual purpose and aim of any order made for substituted service was to get the petition to the 1st Respondent, once the 1st Respondent was shown emphatically to have been served the petition, then the manner or way the service was effected or by who it was effected becomes secondary and should be considered to the back seat if at all. This is particularly imperative taking into account that the 1st Respondent did not claim, let alone establish, that he was in any way whatsoever prejudiced by the manner of service of the petition on him.
It was held in ONYEMAIZU v. OJIAKO [2000] 6 NWLR (pt.659) 25 that it is not every non-compliance with the rules that attracts sanction or dismissal on striking out of the court process.Where non-compliance is a mere irregularity it could be waived. That will not invalidate the action or process unless the non-compliance goes to the root or prop of the case.
Now, assuming the 1st Respondent was not at all served nor had no knowledge of the petition until 30/10/2007 what was the appropriate order the Tribunal should make on the motion of the 1st Respondent? Is it an outright dismissal of the petition, or the proceedings up to the date of the protest? The appropriate order would have been to quash the proceedings up to the date of the Ruling. That is what this court did in INTEGRATED BUILDERS v. DOMZAQ VENTURES [2005] NWLR (pt. 909) 97 at 119 – 120. In KIDA v. OGUNMOLA (supra). It was only the order in default of service that was set aside, and not the entire suit. See also SKEN CONSULT (NIG) LTD v. GODWIN UKEY SEKONDI (1981) 1 SC 6.
What we have in this petition is that the Tribunal allowed itself to be swayed by crass technicality to dismiss the petition in its entirety. The tendency these days in election matters, where more than the interest of the candidates are at stake is towards striving to do substantial justice as against sticking to crass technicality. See BUHARI v. OBASANJO [2003] 15 NWLR [pt.843] 236 at 257. This trend is not peculiar to the judiciary. The legislature also, as can be seen from paragraphs 8 and 49 of the 1st Schedule to the Electoral Act, 2006, has imbibed it.
On all the issues canvassed, as distilled from the grounds of appeal, the appeal, in my view, has substance. I allow the appeal in its entirety. I agree completely with my learned brother, TIJJANI ABDULLAHI, JCA, in his views and conclusions in the lead judgment just read, including the consequential orders and orders as to costs he made therein.

Appearances

COUNSEL:
Mr. C. N. Eke Esq. for the AppellantFor Appellant

AND

Mr. G. I. Godfery Esq. with him Mrs. Otuka
Dr. D. A. NwaogbeFor Respondent