MR. MEDEYINLO A. A. V. MR. JEMBI (PRESIDING OVERSEER) & ANOR
(2011)LCN/4299(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of February, 2011
CA/L/361/08
RATIO
ACADEMIC OR HYPOTHETICAL SUIT: UNDER WHAT CIRCUMSTANCES WILL A SUIT BE SAID TO BE ACADEMIC OR HYPOTHETICAL
In the case of Plateau State v. A.G. Federation (2006) 1 S.C (Pt. 1) 1, at 60 Tobi JSC stated circumstances in which a suit can be said to be academic or hypothetical. He had this to say at page 60: “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or reliefs sought. PER ADZIRA GANA MSHELIA, J.C.A.
FORMULATION OF ISSUES FOR DETERMINATION: WHETHER A PARTY IS ALLOWED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION OUT OF A GROUND OF APPEAL
It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. See: Yadis (Nig) Ltd. v. G.N.I.C. Ltd. (supra) cited by respondents’ counsel. PER ADZIRA GANA MSHELIA, J.C.A.
INTERPRETATION OF STATUTE : PROVISION OF ORDER 2 RULE 1(A) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 1979 AS IT RELATES TO THE REQUIREMENTS OF THE LAW THAT MUST BE COMPLIED WITH IN THE SERVICE OF A MOTION OR SUMMON ON THE DEFENDANT
It appears to me that what calls for determination as far as issue one is concerned is whether there has been a compliance with Order 2 Rule 1(a) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. It states: – “An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) has not been served the affidavit must set that fact and the reason why service has not been effected, and the said affidavit shall be before the court or judge on the hearing of the motion or summons.” It is clear from the above provision that the responsibility lies on the applicant to personally serve the motion or summons on the respondents. After serving the processes applicant is required to personally depose to an affidavit in accordance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules. The affidavit must be deposed to by the applicant (in this case the appellant) or any person who has his authority to do so but it is not the duty of the officer of the court (a bailiff) who would state the reason in the affidavit as to why service was not effected. It is therefore my view that the affidavit must be filed and sworn to by the Applicant before the motion can be heard or listed for hearing. PER ADZIRA GANA MSHELIA, J.C.A.
STATUTORY PROCEDURE: WHETHER WHERE A SPECIAL PROCEDURE IS PRESCRIBED FOR THE ENFORCEMENT OF A PARTICULAR RIGHT OR REMEDY, NON-COMPLIANCE WITH SUCH A PROCEDURE IS FATAL TO THE ENFORCEMENT OF THE REMEDY
Where a rule of court provides for the doing of any act before a case can be heard, it is my view that the rule of court must be followed strictly. Rules of Court are made to be obeyed it would be seen from the latter part of Order 2 Rule 1 (4) where – “…If any person who ought to have been served in paragraph 3 has not been served, the affidavit must state the fact and the reason why service has not been effected that it is not duty of the officer of the court (apparently in this case a Bailiff) who should state the reason in the affidavit. The affidavit must be deposed to by the Applicant (in this case the Appellant) or any person who has his authority to do so. To construe otherwise is to make an officer of the court who ordinarily is to report process of service to state reasons why process of court has not been served. It is therefore my view that the Affidavit must be filed and sworn to by the Applicant before the motion can be heard or listed for hearing.” The Supreme Court adopted this reasoning in the recent case of Onyemazu v. Ojiako & Anr. (2010) 1-2 Sc 41 at 56. Furthermore, in the case of Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt 132) 152 the Supreme Court held that it is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy non-compliance with such a procedure is fatal to the enforcement of the remedy. The Fundamental Rights Enforcement Rules, 1979 must be adhered to strictly..” PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
MR. MEDEYINLO A. A. Appellant(s)
AND
1. MR. JEMBI (PRESIDING OVERSEER)
2. MR. FASEYIKU (ELDER) Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Onigbanjo J. sitting at the Lagos High court delivered on 9th October 2007 in suit No.ID/M/8/2007.
The appellant/applicant by a motion ex-parte dated and filed 8/5/2007 sought and obtained leave on 14/5/2007 to enforce his Fundamental Right to Freedom of worship. The appellant/applicant also filed a motion on notice in which he asked for the following reliefs:
“a) A declaration that I was unlawfully excluded from worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu from Sunday 27th of August, 2006 to date is illegal, wrongful, unlawful, unjustifiable and unconstitutional that there shall be no exclusion zone to my freedom of worship to avoid doing future generation a major disservice.
(b) An order of perpetual injunction restraining the Respondent from further preventing the applicant to worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu and from further interfering in any manner whatsoever with the applicant’s enjoyment of his fundamental rights of Freedom of Wordhip.
(c) Damages of Five Hundred Thousand (N500, 000.00) against the Respondents for the breach of the Applicants Fundamental Rights.”
The grounds upon which the reliefs are sought includes: –
1. That by interfering, depriving and exclusion of the Applicant as a bonafide member of Jehovah’s Witnesses Organization from worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu, from Sunday 27th of August, 2006 to date is not in accordance with any procedure permitted by law and is not justified by any of the circumstances stated in section 38 of the 1999 Constitution of Federal Republic of Nigeria.
2. A member of Jehovah’s Witnesses is free to Worship in any Kingdom Hall of Jehovah’s Witnesses that what the Respondents did has infringed the Applicant’s Fundamental Right of Worship guaranteed by S.38 of the 1999 Constitution of the Federal Republic of Nigeria.
The Applicant is at all material times to this application a bonafide member of Jehovah’s Witnesses Organization. Up till now, the Applicant is still prevented from worshipping at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu since Sunday, 27th August, 2006 to date.
The 1st and 2nd Respondents filed counter-affidavits. A further counter-affidavit dated 5/6/07 was also filed by Omowunmi Ogunjeminiyi. The Appellant/Applicant filed a further and better affidavit on 14/6/07 and 5/7/07 respectively in response to the averments deposed to in the counter-affidavits.
After hearing arguments on the said application the learned trial judge had this to say at page 75 of the record: –
“The implication of the foregoing is that this application is incompetent and must fail. See In Re: Udo above. This application, therefore, fails and is dismissed.”
Aggrieved with the decision of the court below, appellant/applicant lodged an appeal to this court vide Notice of Appeal dated 25/10/07 containing two grounds of appeal.
In accordance with the practice of this court both parties filed and exchanged briefs of argument. Appellant filed his brief of argument on 13/6/08 but same deemed properly filed on 25/5/10. A reply was also filed on 8/7/10. Respondents brief filed on 7/05/10 was deemed properly filed on 6/7/10. Respondents also filed Notice of Preliminary Objection on 5/7/10 challenging the competence of the appeal.
When the appeal came up for hearing Respondents’ counsel argued the preliminary objection dated and filed on 5/7/10. The arguments canvassed having been embedded in the respondents brief was adopted by respondents’ counsel without much ado. Appellant responded to the objection in his reply brief filed on 13/6/08, but deemed properly filed on 25/3/10. He adopted and relied on the reply brief. Appellant also adopted and relied on his brief of argument as well as the reply and urged the court to dismiss the preliminary objection and allow the appeal. Respondents’ counsel adopted the respondents brief in the same vein urged the court to uphold the preliminary objection and strike out or dismiss the appeal.
From the two grounds of appeal filed, appellant distilled three issues for determination as follows:-
a. whether the order of the judge in dismissing the application of the Appellant/Applicant in this suit is a proper order to be made in the circumstance of the case.
b. whether the procedure adopted by the court in trying on affidavit the complaint brought before it by the Appellant vitiated the proceedings.
c. Whether the rights of the Appellant has been breached.
As an alternative Respondent formulated one issue for determination as follows: –
“Whether the learned trial court was right in dismissing the application of the Appellant/Applicant for the Appellant/Applicant’s failure to depose to an affidavit of service personally. (Based on Ground 1)”
The Preliminary objection herein challenges the competence of the appeal, a challenge if successful robes this court of its jurisdiction to hear and determine the said appeal. The law is settled that where a Preliminary objection is raised against the hearing of appeal, same must be taken first. See: Jaiyeola v. Abioye (2003) 4 NWLR (Pt 810) 397 at 414 paragraphs E – F and Osun State Government v. Dlami (Nig) Ltd. (2003) 7 NWLR (Pt 818) 72 paragraphs D – E.
The Notice of Preliminary Objection filed on 5/7/10 contained the following grounds of objection: –
1) The appeal is academic or hypothetical.
2) Grounds 2 of the Notice of Appeal is incompetent for failing to complain of any error in the judgment of the lower court.
3) In the alternative, each of the issues is incompetent for the following reasons,
a. Issue (a) in the Appellant’s brief of argument is incompetent for not relating to any ground of appeal or any grounds of appeal or any ground of appeal at all and for failing to flow from any of the grounds of appeal.
b. Issue (b) in the Appellant’s brief of argument is incompetent for not relating to any valid ground of appeal at all.
c. Issue (c) in the Appellant’s brief of argument is incompetent for not relating to any ground of appeal.
I will now proceed to treat the grounds of preliminary objection one after the other. The first ground of objection is that the appeal is incompetent for being merely academic or hypothetical. The contention of Respondents’ counsel is that appellant failed to appeal against the finding of the learned trial judge wherein he stated that there were no facts in the statement in support of appellant’s application to enforce his fundamental right which rendered the application incompetent. Learned counsel submitted that the law is trite that where the Appellant fails to appeal against a decision or a finding, as in this case, such a decision or finding is binding on him. See: Ogunyade v. Oshinkeye (2007) 15 NWLR (Pt 1057) 218; Bakare v. RCN (2007) 17 NWLR (Pt 1064) 606, at 638 paragraph F; CBN v. Igwillo (2007) 4 – 5 SC 154 at 182 and Umanah v. Attah (2006) 17 NWLR (Pt 1009) 03 at 536. Learned counsel further contended that the failure of the appellant to appeal against the finding, that this application was incompetent also renders the issues in this appeal merely academic since appellant would still not be entitled to have the judgment set aside even if the issues raised were decided in his favour. See: Umanah v. Attah (Supra) page 520 paragraphs E – F. Learned counsel therefore urged the court not to concern itself with issues that are merely academic or hypothetical and dismiss the appeal.
In the reply brief appellant maintained that the appeal is not academic, speculative or hypothetical. Appellant submitted that there is difference between an appeal being academic or hypothetical and failure to appeal against a judgment on point of law or fact.
Appellant urged the court to discountenance the arguments canvassed in paragraphs 4.01 (a) to (c) of the respondents’ brief of argument as being irrelevant and not germane to the grounds of objection. That the grounds of appeal emanated from the judgment of the lower court.
What is academic or hypothetical about the appeal? In the case of Plateau State v. A.G. Federation (2006) 1 S.C (Pt. 1) 1, at 60 Tobi JSC stated circumstances in which a suit can be said to be academic or hypothetical. He had this to say at page 60:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.
A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or reliefs sought.”
The appeal in my humble view cannot be said to be academic or hypothetical. The reason is not far fetched. The complaint of the appellant in ground I relates to one of the reasons relied upon by the learned trial judge in dismissing the appellant’s case. See pages 73 – 74 of the record of appeal. I hold that the first ground of objection is unfounded and same fails.
As regards the second ground of objection respondents’ counsel submitted that Ground 2 of the Notice of Appeal complains that the High Court was wrong in holding that the appellant disrupted proceedings at the Kingdom Hall of Jehovah’s Witnesses. It was contended that the learned trial judge made no such finding. That this ground fails to complain of any error in the judgment of the lower court as such it is incompetent. Learned counsel submitted that appeals are usually against the ratio decidendi and must be directed at the reasons for the judgment of the court appealed against and not outside it. See: Military Administrator Ekiti State v. Aladeyelu (2007) 14 NWLR (pt. 1055) 519 at 653 – 654. He urged the court to strike out ground 2 as being incompetent.
In response appellant submitted in his reply brief that it is not correct to say that ground 2 did not complain of error in the judgment. Appellant submitted that the learned trial Judge erred in law by necessary implication in concluding by implication that he disturbed the respondents or others in worship. Appellant maintained that ground 2 contained particulars (a) – (f).
I have carefully examined ground 2 and its particulars.
Appellant’s complaint relates to the literal interpretation of S.38 of the 1999 Constitution proferred by the learned trial judge. See pages 73 – 74 of the record of appeal. Particulars of error 2 (f) is therefore relevant. This ground of objection therefore fails.
The respondents had further contended that in the event this court hold that this appeal is not merely academic, as an alternative it is their contention that the issues are incompetent for exceeding the number of grounds of appeal. He relied on the cases of Yadis (Nig) Ltd. v. GNIC (2007) 14 NWLR (Pt 1055) 584; Ibikunte v. Lawani (2007) 3 NWLR (Pt. 1022) 580 at 590 – I and Industrial Training Fund v. Nigeria Railway corporation (207) 3 NWLR (pt. 1020) 2g at 56 – 7. Learned counsel submitted that appellant formulated three issues for determination from two grounds of appeal and has failed to relate the issues to his grounds of appeal. It was further contended that issue (a) does not relate to ground 1 because the issue deals with the dismissal of appellant’s application generally. He therefore urged the court to strike out issue (a). Similarly respondents’ counsel urged the court to strike out issue (b) as same did not flow from any ground of appeal filed by the Appellant. Respondents’ counsel also submitted that issue (c) is incompetent, as it does not relate to either of the appellant’s grounds of appeal. Learned counsel submitted that since there are no valid or competent issues on which the Appellant’s appeal can be considered, his brief is thereby rendered incompetent and, his appeal liable to be dismissed. He urged the court to dismiss the appeal on this ground.
Appellant in response contended that issue I is distilled from ground 1, while issue 2 emanated from Ground 2. Appellant conceded that it was not elegantly drafted but the issue relates to the dismissal of the application. That the court suo motu dismissed the case on the ground not canvassed by parties and the trial judge did not invite the parties to address the court on that issue i.e. whether service is by sheriff or by Applicant. Appellant submitted that it is trite that an issue for determination must arise from a ground of appeal or a combination of grounds of appeal. Whereas an issue can be covered by more than one ground of appeal, the contrary obtains conversely. The courts have on many occasions frowned at proliferation of issues. See: Yakaje v. Ilaire (2003) 10 NWLR (Pt 828) 270 and Araka v. Ejeugwu (1999) 2 NWLR (Pt 589) 107. Appellant contended that this court will not strike out grounds of appeal only for the reasons that it was not properly drafted, if the ground fully conveyed to the respondent the nature of the complaint. Appellant further submitted that the days of sticking to technicalities as opposed to substantial justice have gone by and this court has shifted from undue reliance on technicalities to doing substantial justice between parties before it. See: Odinigi v. Oyeleke (2001) 2 SC 194. Appellant urged the court to dismiss the Respondents’ Notice of Preliminary Objection.
The complaint of the Respondents relates to proliferation of issues. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. See: Yadis (Nig) Ltd. v. G.N.I.C. Ltd. (supra) cited by respondents’ counsel.
In the instant case appellant formulated three issues for determination from two grounds of appeal in his brief of argument. However, at the hearing of the appeal he abandoned issue (b) and same is discountenanced. Appellant also made oral application and tied the remaining two issues to the two grounds of appeal. Issue (a) was distilled from ground one, while issue (c) was formulated from ground two. It is my humble view that the argument of Respondents’ counsel relating to the issues formulated by the appellant cannot be sustained.
I agree with the submission of the appellant that the fact that a ground of appeal is inelegantly drafted, would not render such ground of appeal incompetent if the nature of the complain is conveyed to the respondent. The courts have since shifted from undue technicalities to doing substantial justice between parties before it.
For the reasons stated herein above I hold that the preliminary objection raised by the Respondents therefore fails and is accordingly dismissed.
I will now proceed to resolve the two issues raised by the appellant serially.
The complaint of the appellant under issue one is whether having regard to the circumstances, the learned trial judge was right to have dismissed the application. While arguing this issue appellant referred to the proceedings of the lower court at page 16 of the Record of Appeal and contended that he served the 1st Respondent properly. Appellant submitted that the issue of the failure of the Appellant/Applicant to personally swear to an Affidavit of service of the application making the application incompetent does not arise in the instant case. He contended that service was done through counsel in the presence of the 1st Respondent in court. Respondents’ counsel informed the court that he had written instruction to accept service and that is good service. Appellant further submitted that assuming, though not conceding that there was no proper service as the court held, and then the proper thing was for the court not to have gone into the matter since the issue of service is a condition precedent to the exercise of the court’s jurisdiction. He said it is clear from the Re: Appolos Udo’s case that it is after the service of the court processes has been effected by the bailiff that the applicant is required to depose to an affidavit of service before the motion can be heard.
Appellant submitted further that the existence or absence of jurisdiction goes to the very root of any matter so as to sustain or nullify the court’s decision or order in respect of the relevant subject matter. See: Maiwarwaro v. Garba (2001) 7 NWLR (Pt 711) 40. It is trite that where a court has no jurisdiction to decide it, the decision is a nullity. See: Management Enterprises Ltd. v. Otunsanya (1987) 2 NWLR (pt. 55) 179 at 188. Appellant contended that the proceeding before the High court was a nullity. See: Madukolu and Ors. v. Nkemdilim (1962) ANLR 581.
The lone issue formulated by the Respondents is similar to appellant’s issue I as same was also distilled from ground 1. The Respondents contends that the learned trial judge was right in dismissing the application of the Appellant as being incompetent for failure to conform with the strict rules of Fundamental Procedure. See: Abia State University v. Anaibe (1996) 3 NWLR (pt 439) 646 at 51 and Jack v. University of Agriculture Makurdi (2004) 5 NWLR (pr 865) 208. Respondents’ counsel referred to order 2 Rule 1 (4) of the Fundamental Rights (Enforcement) Rules. Respondents further contended that following the decision of this court in The State v. commissioner of Police In Re: Appolos Udo (1987) 4 NWLR (pt 63) 120 at 126 paragraph F, the duty of the applicant now Appellant to swear to the affidavit of service cannot be dispensed with regardless of the appearance of the respondents. The case of Alfred Onyemazu v. His Lordship J.A. Ojiako (2010) 1-2 SC 41 was cited as additional authority. Learned counsel therefore urged the court to affirm the decision of the court below and dismiss the appeal.
It appears to me that what calls for determination as far as issue one is concerned is whether there has been a compliance with Order 2 Rule 1(a) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. It states: –
“An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) has not been served the affidavit must set that fact and the reason why service has not been effected, and the said affidavit shall be before the court or judge on the hearing of the motion or summons.”
It is clear from the above provision that the responsibility lies on the applicant to personally serve the motion or summons on the respondents. After serving the processes applicant is required to personally depose to an affidavit in accordance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules. The affidavit must be deposed to by the applicant (in this case the appellant) or any person who has his authority to do so but it is not the duty of the officer of the court (a bailiff) who would state the reason in the affidavit as to why service was not effected. It is therefore my view that the affidavit must be filed and sworn to by the Applicant before the motion can be heard or listed for hearing.
In the instant case the motion was served on the 1st respondent in the open court. For the purpose of clarity I will reproduce the proceedings of the court dated Tuesday the 5th day of June, 2007 at page 16 of the record of appeal hereunder. It reads as follows:-
“TODAY TUESDAY 5TH DAY OF JUNE 2007
Appellant present. 2nd Respondent present
A. Medeyinlo appears personally.
G. O. Odde for 2nd Respondent.
MEDEYINLO: I am yet to serve the respondent.
ODDE: I undertake to accept service for 1st Respondent. I have instruction to appear for both of them. I now confirm service of the application on the 2nd Defendant.
COURT: Suit is adjourned to 19/6/07 for hearing application on notice dated 8/5/07.”
The motion dated 8/5/07 was heard on the 17th day of July 2007. See pages 33-34 of the record of appeal. It is clear from the proceedings of 5/6/07 reproduced (supra) that appellant did not depose to any affidavit of service before the hearing date as required by Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. Appellant had contended that acceptance of service in open court by respondents’ counsel had satisfied the requirement of the said Rules. This argument in my humble view cannot hold water. Rules of court are made to be obeyed. More importantly an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 is a special action as such the rules must be strictly followed.
In the case of Re: Appolos Udo (supra) His Lordship Olatawura, J.C.A. (as he then was and of blessed memory) in construing the provisions of Rule 1 (4) of Order 2 said at page 126 paragraphs D – F and I quote in extenso…
“It is the contention … that it is not the duty of the Appellant to effect service of process but on the officers of the court and therefore it will be patently unjust to deny the Appellant a relief which he may otherwise be entitled to purely on such a technical defect due not to his own error.
Where a rule of court provides for the doing of any act before a case can be heard, it is my view that the rule of court must be followed strictly. Rules of Court are made to be obeyed it would be seen from the latter part of Order 2 Rule 1 (4) where –
“…If any person who ought to have been served in paragraph 3 has not been served, the affidavit must state the fact and the reason why service has not been effected that it is not duty of the officer of the court (apparently in this case a Bailiff) who should state the reason in the affidavit. The affidavit must be deposed to by the Applicant (in this case the Appellant) or any person who has his authority to do so. To construe otherwise is to make an officer of the court who ordinarily is to report process of service to state reasons why process of court has not been served. It is therefore my view that the Affidavit must be filed and sworn to by the Applicant before the motion can be heard or listed for hearing.”
The Supreme Court adopted this reasoning in the recent case of Onyemazu v. Ojiako & Anr. (2010) 1-2 Sc 41 at 56.
Furthermore, in the case of Dongtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt 132) 152 the Supreme Court held that it is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy non-compliance with such a procedure is fatal to the enforcement of the remedy. The Fundamental Rights Enforcement Rules, 1979 must be adhered to strictly.
It is therefore my considered view that the failure of the appellant to serve the motion personally on the respondents and depose to affidavit of service or non service in compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 renders the application fundamentally defective. The learned trial judge ought to have ensured compliance before hearing the application. I wish to note that respondents’ counsel spotted the defects at the hearing of the application and this is the observation of the learned trial judge appearing at page 7 4 of the record:-
“Finally, the issue of the person having the burden of ensuring service of processes and deposing to affidavit of service therefore as envisaged by Order 2 Rule 1 (4) of the Fundamental night, (Enforcement Procedure) Rules was addressed by the Court of Appeal in the case of In Re: Udo here cited in this judgment and the court was very clear that the responsibility lies on the applicant and not a court official as contended by the applicant.”
As rightly submitted by the appellant the issue of service of the court processes is a condition precedent to the exercise of court’s jurisdiction. It is a necessary step that must be followed and failure to take necessary step affects the hearing of the application. A defect in competence renders the entire proceedings a nullity. See: Madukolu & Ors. v. Nkemdilim (1962) ANLR 581. The learned trial judge rightly found as a fact that the application was incompetent but wrongly dismissed same. Having declared the application incompetent, the appropriate order should have been an order striking out the application and not dismissal. I will therefore partly agree with the appellant to the extent that the order of dismissal was wrongly made. For the reasons stated I will resolve issue I in favour of the appellant only to the extent that the dismissal order was wrongly made.
Issue (c) is whether the rights of the appellant has been breached. The complaint of the appellant relates to the merit of the substantive application. Since the application was found to be incompetent the learned trial judge ought not to have made pronouncement regarding the merit of the application. That was unnecessary the application should have been struck out. I am of the firm view that the procedure adopted by learned trial judge was wrong. There is therefore no useful purpose to be served by resolving issue (c) raised in this matter as no favourable findings in that regard could resuscitate the application. It would only amount to academic exercise.
In the final analysis I hold the view that this appeal is meritorious and same succeeds. Appeal is partly allowed. The judgment of the High court of Lagos State delivered on 9th October, 2007 in suit No ID/M/8/2007 dismissing the application is hereby set aside. In its place I make an order that the application dated 8th day of May 2007 filed before the lower court by the applicant being incompetent be and is hereby struck out. Parties to bear own costs.
JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the Judgment of my learned brother, Mshelia, JCA just delivered and I agree that this appeal has merit and is also partially allowed by me. Where a court finds out that a condition precedent for the activation of its Jurisdiction has not been met, the proper order is to strike out the case and not to dismiss it.
I agree with the submission of counsel for the Appellant that the issue of service of the court process is a condition precedent to the exercise of the court’s Jurisdiction and failure to comply with this condition robs the court of its Jurisdiction. The proceedings conducted thereafter, including the Judgment thereof, are a nullity. See Madukolu v. Nkemdilim (1962) All NLR 581.
Had the learned trial Judge struck out the application, I would have no difficulty in dismissing the appeal but because, he dismissed the suit, I hereby set aside the order of dismissal. In its place, I order that Suit No. ID/M/8/2007 which was dismissed on 9/10/07 be and is hereby struck out.
Parties are to bear their respective costs.
MOHAMMED AMBI-USI DANJUMA J.C.A.: I have read before now the lead Judgment just delivered by my brother Adzira Gana Mshelia, JCA and I agree that this appeal be allowed in part only. That is to say that the order of the trial court dismissing the application of the Appellant for the enforcement of his fundamental right to freedom of worship should have been struck out rather than dismissed as the application was merely incompetent and could not be heard by the trial Judge for reason of non compliance with the mandatory condition precedent to its been heard by the Judge, i.e. the swearing to an affidavit of compliance and service thereof.
Accordingly, I too agree that the order dismissing the application of the applicant at the trial was wrongful. That order of dismissal is set aside and I substitute an order striking it out in its place, while also allowing the appeal in part as earlier on indicated.
Appearances
Appeallant in personFor Appellant
AND
O.A. Olashoju (Miss)
David Odde Esq.For Respondent
