ODEY v. ALAGA & ORS (2021)

ODEY v. ALAGA & ORS

(2021) LCN/4974(SC)

In The Supreme Court

On Thursday, February 25, 2021

SC.9/2021

Before Our Lordships:

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Samuel Chukwudumebi Oseji Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

STEPHEN ADI ODEY APPELANT(S)

And

1. CHIEF JOHN ALAGA 2. JARIGBE AGOM JARIGBE 3. INDEPENDENT NATIONAL ELETORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

THE POSITION OF THE LAW ON PERSONAL SERVICE OF ORIGINATING PROCESS ON A PARTY

The law is well settled that personal service of an originating process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside. See:
Harry v. Menakaya (2018) LPELR 42363 SC;
S.G.B.N. Ltd. vs. Adewunmi (2003) 10 NWLR (Pt.829) 526;
Mark vs Eke (2004) 5 NWLR (Pt.865) 54;
Tsokwa Motors (Nig.) Ltd. vs UBA Plc (2008) 2 NWLR (Pt. 1071) 347.
Failure to effect service of a process on a party where service is required renders the proceedings null and void and of no effect.
Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so. See:
Odutola vs Kayode (1994) 4 SCNJ 1;
Leedo Presidential Hotel Ltd. Vs B.O. Ltd. (1998) 10 NWLR (Pt. 570) 353 @ 381 B;
Okoye vs C.P.M.B Ltd. (2008) 15 NWLR (Pt. 1110) 335;
Skenconsult Nig. Ltd & Anor vs Ukey (1981) 1 SC 6 @ 26.
It is also in keeping with the principle of fair hearing enshrined in Section 36(1) of CFRN 1999, as amended.
Moreover, ORDERS 2 RULE 4, AND 6 RULE 2 of the Rules of this Court, makes it mandatory for the Notice of Appeal, to be served on all the Respondents and failure to serve the Notice of Appeal on the Respondents is not a mere irregularity but a fundamental breach which is fatal to the jurisdiction of this court. PER NWEZE, J.S.C.

WHETHER OR NOT COURTS ARE BOUND BY THE EARLIER DECISIONS OF THE APEX COURT

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The first respondent in this appeal, Chief John Alaga, by way of Originating Summons, instituted an action at the High Court of the Federal Capital Territory, Abuja, on October 5, 2020. He sought judicial responses to the following questions:
1. Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended); the 1st Defendant gave and/or supplied false information to the Defendant in his INEC form CF001 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact is not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on September, 2020 at Ogoja Government Secretariat, Ogoja, Cross River State, wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety?
4. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the Peoples’ Democratic Party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant?

He consequently, sought the following reliefs:
(a) A declaration that the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River-North Senatorial bye-election scheduled to hold on 31^st October, 2020, or at any other date, whereas he has no such educational qualifications;
(b) A declaration that having given and/or supplied false information relating to his educational qualifications in his statutory forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(c) A declaration that the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government secretariat, Ogoja, Cross River State, wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety;
(d) A declaration that the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020, at Ogoja, Cross River State, for the purposes or nominating its candidate for the Cross River North Senatorial bye election was not conducted by the national body of the party and invalid, illegal, null and void;
(e) A declaration that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye elections scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the Party nor monitored by the 2nd Defendant;
(f) An Order of Injunction restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible to contest for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(g) An Order of Injunction restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognizing or in any other manner according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name on the result sheet, ballot paper or any other document or material for the said bye election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) of the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date;
(h) And for such further or any other Orders as this Honorable Court may deem fit to make in the circumstances.

Upon being served with the Originating Summons, the second respondent filed a Counter Affidavit on October 14, 2020 and served same on the first respondent. The third respondent herein [INEC] also filed a Counter Affidavit on October 16, 2020, to the Originating Summons. On October 20, 2020, parties adopted their written addresses in support of the processes filed. Judgment was reserved.

On November 4, 2020, the trial Court, in its judgment, dismissed the case of the first respondent in its entirety. It held, inter alia:
a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye election;
b. That the Cross River North Senatorial primary election of the People’s Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial candidate of the PDP was conducted with the authentic and legitimate Delegate List of the Ward and Local Government Areas Executives of the Party as shown by exhibits B Series and C;
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the People’s Democratic Party for the Cross Rivers North Senatorial Bye election scheduled to hold on 31st October, 2020 or at any other date as clearly shown by exhibit D;
d. The primary election of the People’s Democratic Party for the Cross River North Senatorial held on 5th September, 2020, was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as shown by exhibit E;
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the List of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020, forthwith within 48hours;
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the People Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020.

Dissatisfied with the judgment of the trial Court, the first respondent, on November 12, 2020, appealed to the Court of Appeal, Abuja Division, [hereinafter, simply, referred to as “the lower Court”], vide Notice of Appeal containing five Grounds of Appeal The lower Court heard the appeal. On December 17, 2020, it delivered its judgment, wherein it dismissed the first respondent’s appeal and affirmed the decision of the trial Court.

The appellant herein, on December 24, 2020, filed an application before the lower Court. He prayed for leave to appeal against the judgment of the lower Court to this Court as an interested party. The said application was granted on December 29, 2020. On the same day, the appellant filed his Notice of Appeal against the judgment of the lower Court to this Court.

The appellant raised four issues for the determination of his appeal. They were couched thus:
1. Whether the action that gave rise to the appeal before the lower Court was not statute barred, thus robbing the lower Court of any vires to affirm the consequential orders made by the trial High Court?
2. In view or the 1st respondent’s lack of locus standi to institute the action (as claimant) before the trial High Court, coupled with the manifest fact that the action itself was a crass abuse of the processes of Court; and juxtaposed with the fact that the entire action was not properly constituted, (the proper parties not being before the two lower Courts), whether the lower Court did not fall into grave error by affirming the consequential orders made by the trial High Court?
3. Considering the fact that the trial High Court rightly dismissed the claimant’s case before it, as well as the circumstances of the case and judicial precedents on the subject, whether the lower Court did not fall into serious error in its affirmation of the consequential orders made by the trial High Court?
4. Considering the subject matter of Suit No: CV/77/2020, Between Chief John Alaga v. Jarigbe Agom Jarigbe and Anor, whether the FCT High Court had the territorial jurisdiction to make the consequential orders affirmed by the lower Court?

In his brief of arguments, the first respondent set out a sole issue for determination:
Whether the Court of Appeal was right in affirming the consequential orders made by the trial Court in its Judgment?

On his part, the second respondent concreted these issues for the determination of the appeal;
1. Whether the suit of the 1st Respondent herein at the trial Court was statute barred, by virtue of Section 285 (9) of the 1999 Constitution, thereby divesting the Court below of jurisdiction to affirm the consequential orders of the trial Court?
2. Whether, having regard to the crux of 1st Respondent’s suit at the trial Court, which sought the disqualification of the 2nd Appellant under Section 31 [5] of the Electoral Act, 2010 [as amended], the 2nd Respondent can be said to have lacked the locus standi in instituting the suit, thereby making the affirmation of the consequential orders of the trial Court by the Court of Appeal wrong?
3. Whether having regard to the absence, of any ground of Appeal by the 1st Respondent at the Court of Appeal, challenging the consequential reliefs granted in favour of the 2nd Respondent by the trial Court, the Court of Appeal was wrong in affirming the consequential orders made by the trial Court?
4. Whether having regard to the crux of the 1st Respondent’s suit at the trial Court, the trial Court did not have the territorial jurisdiction over the suit, thus making the affirmation of its consequential orders by the Court of appeal wrong?

The third respondent in its brief of argument adopted the three issues formulated by the appellant. In response, the appellant filed a reply brief to the first to third respondent’s brief of argument on the 14/2/2021, 31/1/2021, and 04/2/2021, respectively.

The first respondent, by Motion on Notice, filed on January 26, 2021, prayed the Court for:
1. An Order of this Honorable Court striking out the appellant/respondent’s Notice of Appeal dated and filed on 9th day of December 2020;
2. An Order setting aside the service of the appellant/respondent’s Notice of Appeal dated and filed on 29th day of December 2020 on the 1st respondent/applicant, which service was purportedly made on 8th January, 2021.
And for such further order or other orders as this Honorable Court may deem fit to make in the circumstances of this case.

The said application was supported by an affidavit. Exhibit JA1 and JA2 were attached thereto. He also filed in support of the application, a further and better affidavit and a twenty-page written address. In opposition, the appellant filed a ten-paragraph Counter Affidavit attached with exhibits on February 10, 2021. He also filed a written address on the same day.

The second respondent also filed a Motion on Notice on January 22, 2021. He prayed for:
1. An Order of this Honourable Court striking out the Notice of Appeal dated and filed on 29th December, 2020, as shown at pages 1102-1109 of the record of appeal, for being incompetent, as the said incompetence affects the jurisdiction of this Honourable Court to entertain same.
2. And for such further Order or orders as this Honourable Court may deem fit to make in the circumstance of this appeal.

The application was supported by a 14-paragraph affidavit and two exhibits. He also filed a further and better affidavit, a reply on points of law and a written address. In response, the appellant filed three affidavits: the first affidavit contained ten exhibits, while the second affidavit contained two exhibits and the third affidavit contained six (6) paragraphs. He also filed a further and better affidavit on February 141 2021 and a written address on February 11, 2021.

At the hearing of the appeal, all the parties adopted and relied on their respective processes in support of their positions. In the first respondent’s written address, filed on February 10, 2021, a sole issue was formulated for determination as follows:
Whether from the facts and circumstances of this application, the application ought to be granted.

In reply, learned senior counsel for the appellant, in his written address, filed on February 10, 2021 raised a sole issue for determination as follows:
Considering the entire circumstances of this case, alongside applicable precedents of the Honourable Court on the subject of service and notice, inter alia whether this Honourable Court will not dismiss the applicant’s motion filed on January 22, 2020?

ARGUMENTS ON THE PRELIMINARY OBJECTION
Arguing the sole issue in their Preliminary Objection, the learned senior counsel for the first respondent submitted that, just like a writ of summons or any other mode of commencement of action is the originating process by which a claimant/plaintiff/petitioner or applicant commences a suit in a High Court, a Notice of Appeal is the originating process by which an appeal is commenced in an appellate Court. It is in his submission, a fundamentally important process. Thus, when found to be defective, it must be struck out.

He further submitted that the appellant’s failure to serve his Notice of Appeal on the first respondent, personally, is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. He added that Order 2 Rules 3 and 4 of the Supreme Court Rules make it mandatory for the Notice of Appeal to be served on all the respondents.

He contended that a breach of the rules is not a mere irregularity but a fundamental breach that touches on the foundation of the appeal,Rossek v ACB Ltd [1993] 8 NWLR (pt 312) 382, 437; Attorney General of Lagos State v Dosunmu (1989) 3 NWLR (pt III) 552, 556; Popoola v Babatunde [2012] 7 NWLR (pt 1299) 302, 331.

He canvassed the view that whatever the appellant/respondent, purportedly, served amounted to nothing given the fact that the address endorsed thereon was a wrong address in view of the combined effect of Order 2 Rules 3 and 4 and Order 6 Rule 2 (1) of the Supreme Court Rules.

On his part, learned senior counsel for the appellant, who dwelt on the sole issue, submitted that the endorsement of an address for service on the face of application, made the Notice of Appeal competent. In the circumstance, in his submission, it cannot be set aside. He added that what can only be set aside is the service on the address. He took the view that since the law is that substituted service can be ordered with or without a failed attempt at service, the issue of the address for service actually pales into insignificance. The first respondent therefore cannot be insisting on personal service on him when there is a Court order obviating the need for such personal service.

He contended that an appeal is only decided on the basis of the record of appeal.

Paragraphs 6, 7, 8, and 10 of the first respondent’s affidavit are not only argumentative, he contended, but are also legal conclusions and prayers contrary to the mandatory provisions of Section 115 of the Evidence Act. He prayed the Court to strike them out,Inakoju v Adeleke (2007) 4 NWLR (pt. 1025) 423, 607-608; Buhari v INEC (2008) 19 NWLR (pt. 1120) 246, 391.

Learned senior counsel for the appellant on February 16, 2021, forwarded some unreported decisions of this Court, through the Office of the Chief Registrar of this Court for the consideration of this Court. I received it on February 19, 2021.

The second respondent, in his written address filed on February 10/2/2021, set out two issues for determination thus:
1. Whether the Notice of Appeal filed by the appellant on the 29th December, 2020 is not incompetent, having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court?
2. Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that the grounds of appeal are not derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent?

Learned senior counsel for the second respondent submitted that the lower Court, whose decision the appellant is appealing to this Court, did not in any portion of its judgment make any pronouncement on the consequential orders made by the trial Court. He explained that this was because the first respondent, who appealed the judgment of the trial Court to the said lower Court did not in his Notice of Appeal challenge the consequential reliefs made by the said trial Court.

He further submitted that the consequential order which the trial Court made was not one of the issues that arose at the lower Court for determination. It did not therefore form part of the ratio decidendi of the said judgment.

He further submitted that the Notice of Appeal, which the appellant filed on the December 29, 2020, does not have the second respondent’s address for service. Above all, it was never served on him. It is therefore incurably defective. As a result, it rendered this appeal incompetent.

He contended that the non-endorsement of the address of the second respondent on the Notice of Appeal and non-service of the said Notice of Appeal on him are against the provisions of Order 2 Rule 3 (1) (b) of the Rules of this Court.

On his part, learned senior counsel for the appellant submitted that there is no dispute about the fact that the second respondent had filed his respondent’s brief, to which the appellant has also filed a reply. In the respondent’s brief, he pointed out, no challenge to service was made showing that the present motion is afterthought. He further contended that by filing his brief, the respondent had waived any perceived or imaginary irregularity in service, Ediru v FRSC [2016] 4 NWLR (pt. 1502) 209.

He further submitted that the essence of service is to give notice to a party in litigation of the pendency of Court proceedings so that such a party can brief counsel to represent his interest in Court and take advantage of the constitutional imperatives of fair hearing, Saleh v. Abah (2017) 12 NWLR (pt. 1578) 100, 126.

In his submission, the facts of the cases cited by the applicant are different from the present scenario. In the instant case, he explained, there are distinct addresses endorsed against the names of each respondent, particularly, the applicant.

In his reply, learned senior counsel for the first respondent submitted that an order was obtained through misrepresentation of facts. He explained that, as at the time it was granted, the appellant had purportedly served the Notice of Appeal, filed his reply brief to the second respondent’s brief of argument. This was also at a time when the application of the second respondent praying for the striking out of this appeal was pending before this Court.

He urged this Court to discountenance the arguments canvassed by the appellant. He explained that the appellant intentionally, decided not to serve the second respondent the Notice of Appeal, by first not endorsing his address for service and serving a stranger the notice of appeal meant for him.

RESOLUTION OF THE ISSUE IN THE OBJECTION
By way of prefatory remarks, I note that a preliminary objection is a pre-emptive strike. Its resolution will determine whether or not the appeal will be determined on the merits, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F. Indeed, that is why I am under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiag [2002] 10 NWLR (pt 7760 455, 468; UBA Plc v ACB (2005) 12 NWLR (pt 939) 232; Goji v Ewete [2001] 15 NWLR (pt 736) 273, 280.

Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Ltd (2011) LPELR-8807; Ananeku v. Ekeruo [2002] 1 NWLR (pt 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2.

My Lords, as indicated earlier, by Motion on Notice filed on January 26, 2021, senior counsel for the first respondent prayed the Court to strike out the appeal due to non-service on the first respondent. It is common ground that the first respondent was not served personally with the said Originating process, that is, the Notice of Appeal. This much is implied in the belated attempt to remedy this defect by the appellant’s application for an order of Court for substituted service.
This Court obliged the applicant with an order for substituted service: an order, which the learned senior counsel for the first respondent explained was obtained through misrepresentation of facts. In his submission, as at the time it was granted, the appellant had purportedly served the Notice of Appeal, filed his reply brief to the second respondent’s brief of argument, This was also, at a time when the application of the second respondent, praying for the striking out of this appeal, was pending before this Court.
Chief Olanipekun, SAN, one of the most accomplished Senior Advocates at the Inner Bar, did not dispute this state of affairs. Rather, his position is that failure to effect personal service of a Notice of Appeal is a mere irregularity.
With profound respect to the erudite senior counsel, this cannot be. As this Court explained, in a most magisterial manner, the term irregularity in respect of procedure, is often construed to denote something that does not fundamentally taint or besmirch a procedure as to render it invalid or a nullity. In other words, an irregularity is deemed to be curable.
However, personal service of an originating process, like a Notice of Appeal,Akinloye v Adelakun [2000] 5 NWLR (pt 657) 530; Madukolu v Nkemdilim [1962] 2 SCNLR 341; Sken Consult (Nig) Ltd v Ukey (1981] 1 SC 6; NBN Ltd v Guthrie (Nig) Ltd [1993] 3 NWLR (pt 284) 182, is a fundamental requirement of the law, Import Export v Adebayo and Ors (2002) LPELR – 643 (SC); Ihedioha and Anor v Okorocha and Ors (2015) LPELR – 40837 (SC); Olorunyolemi and Anor v Akhagbe [2010] 8 NWLR (pt 1195) 48.
What is more, Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the respondents and a breach of the Rules is not a mere irregularity but a fundamental breach to the foundation of the appeal, Rossek v ACB Ltd [1993] 8 NWLR (pt 312) 382, 437; A.G. Lagos State v Dosunmu [1989] 3 NWLR (pt III) 552, 556; Popoola v Babatunde [2012] 7 NWLR (pt 1299) 302, 331.
As a process that is intimately tied to the Court’s jurisdiction – indeed, it is the fulfillment of such a condition precedent that clothes the Court with competence, Nwabueze v Obi Okoye [1988] 10 – 11 SC 79; Agip (Nig) Ltd v Ezendu [2010] 1 SC (pt 11) 98; Kida v Ogunmola [2006] 6 SCNJ 165; Sken Consult (Nig) Ltd v Ukey [1981] 1 SC 4 – it must be served personally on the respondent unless otherwise directed or ordered by the Court or exempted by the provisions of the law, Akinloye v Adelakun (supra); Madukolu v Nkemdilim (supra); Sken Consult (Nig) Ltd v Ukey (supra); NBN Ltd v Guthrie (Nig) Ltd (supra).
Except in the circumstances exemplified above, [and these circumstances are completely absent in this case], failure to serve a party is a fundamental defect that robs the appellate Court of jurisdiction,Akinloye v Adelakun (supra); Madukolu v Nkemdilim (supra); Sken Consult (Nig) Ltd v Ukey (supra); NBN Ltd v Guthrie (Nig) Ltd (supra). It is not an irregularity that can be waived or deemed waived.
The implication of the non-compliance with the Rules in the circumstance is that the so-called service is ineffective, Sken Consult (Nig) Ltd v Ukey (supra); Iyamu v Aigbiremwen [1992] 2 NWLR (pt 222) 233, 242; Nigerian Nurses Association v A.G. Federation [1981] 11 -12 SC 1.

In effect, it, [that is, ineffective service], is a fundamental vice that vitiates the exercise of the jurisdiction and competence of the Court. It is beyond what can be waived for it is a condition precedent to the invocation of the Court’s jurisdiction, A. G Bendel State and Ors v Aideyan [1989] 3 NWLR (pt 118) 646, Otti v Mobil Oil Nig Ltd [1991] 7 NWLR (pt 206) 700.
This must be so for a Notice of Appeal is the root and foundation of an appeal, lhedioha and Ors v Okorocha and Anor [2016] 1 NWLR (pt 1492) 147, 199; Obimonure v Erinosho [1996] 2 SCNLR 228; Ojo v INEC [2008] 13 NWLR (pt 1105) 577. As such, the Court can only assume jurisdiction over a person where such a person is served with the Originating Process, ACB Plc v Losada (Nig) Ltd [1995] 7 NWLR (pt 4050 26.
My Lords, permit me to set out the views of this Court on this question. In Ihedioha and Anor v Okorocha and Ors (supra), the Court pointed out that:
Service of processes is a threshold issue. It is very important in adjudicatory functions. [It] is an issue that touches on the jurisdiction which is very fundamental. If a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but [also] extrinsic…
See also, Tsokwa Motors (Nig) Ltd v UBA Plc [2008] 2 NWLR (pt 1071) 341; Madukolu v Nkemdilim (supra); Oloba v Akereja [1988] 3 NWLR (pt 84) 508.
In the same case, [Ihedioha and Anor v Okorocha and Ors] (supra), this Court, persuaded by the compelling reasoning of the Court of Appeal in Odua Investment Co Ltd v J.T. Talabi (1991) 1 NWLR (pt 170) 761, 781-782, adopted that Court’s view that:
In all non-compliance cases, the Court must draw a dichotomy between non-compliance arising directly from non-service of the Court process as opposed to and distinct from non-compliance arising from other procedural aberrations… An indiscriminate loading of the statutory provisions with the available case law without drawing this fundamental and factual dichotomy will end in a blurry appreciation of the legal fog cast surrounding this fairly troublesome area of our adjectival law. In my view, non-service of a Court process is an incurable defect for all times… [Italics supplied for emphasis]

A year after the decision in Ihedioha and Ors v Okorocha and Anor (supra), this Court had another opportunity of reiterating its position in the case of Adegbola v Osiyi and Ors [2017] LPELR -42471 (SC). Speaking for this Court, Musa Dattijo Muhammad, JSC, held that:
… [the] Notice of Appeal is the foundation of the appeal [ ] non-service of the Notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal… Service of an initiating process, which is the Notice of Appeal, is a sine-qua non for a Court to assume jurisdiction over a case. [pages 7- 9; italics supplied for emphasis]
On the status of effective service of the Notice of Appeal, His Lordship, Musa Dattijo Muhammad, JSC, at pages 11 et seq, of the said judgement, [Adegbola v Osiyi and Ors], intoned with oracular finality:
Effective service of the Notice of Appeal… is a condition precedent to the exercise of jurisdiction by this Court. Absence of such service, it follows, is a fundamental omission which bars the Court from assuming jurisdiction to hear and determine the appeal. Proceeding, in spite of the non-service of the Notice of Appeal, will constitute a denial of the [respondent’s] right to fair hearing as guaranteed under Section 36 of the 1999 Constitution. See Madukolu v Nkemdilim (1962) 1 All NLR 587, 595; Estate of Late Chief I. S. Idisi v Ecodril Nigeria Ltd and Ors (2016) LPELR- 40438 (SC)… [Italics supplied for emphasis]
As His Lordship, Musa Dattijo Muhammad, JSC, pointed out above, service of an initiating process, like the Notice of Appeal, has a linkage with the impregnable right to fair hearing enshrined in the Constitutional of the Federal Republic of Nigeria, Ihedioha and Ors v Okorocha and Anor (supra); S.G.B.N. v Adewunmi [2003] 10 NWLR (pt 829) 526; Mbadinuju and Ors v Ezuka and Ors [1994] 8 NWLR (pt 364) 535.
Against this background, where service is not effected as required by law, [in the instant case, the requirement of the law is that an originating process, like the Notice of Appeal, must be personally served on the respondent], the person who was improperly served, is entitled ex debito justitiae to have the so-called service set aside as a nullity, Mark and Anor v Eke [2004] 5 NWLR (pt 865) 54; Kida v Ogunmola [2006] 13 NWLR (pt .997) 377 SC, Teno Eng Ltd v Adisa (2005) 10 NWLR (pt 933) 346, 353, Multichem Ind Ltd v Musa [2013] 8 NWLR (pt 1356) 404 at 418, for, as it is well-known, any breach of the right to fair hearing renders the proceedings a nullity, Chime v Onyia [2009] All FWLR (pt 480) 673, 730-731; lhedioha and Ors v Okorocha and Anor (supra).

Now, as shown above, counsel for the Objectors complained of the belated attempt to remedy the defect of improper service of the Notice of Appeal by the appellant’s application for an order of Court for substituted service.
As indicated earlier, this Court obliged the applicant with an order for substituted service: an order, which the learned senior counsel for the first respondent explained, was obtained through misrepresentation of facts. In his submission, as at the time it was granted, the appellant had purportedly served the Notice of Appeal and filed his reply brief to the second respondent’s brief of argument. This was also at a time when the application of the second respondent, praying for the striking out of this appeal, was pending before this Court.
In my humble view, the approach to that complaint is to set aside the said ex parte order for substituted service, being an order obtained in ignorance of the Objectors’ challenge to the purported service through the said ex parte order. To allow the pendency of the order would mean the sustenance of its validity, Skinner v Carter (1948) 1 Ch. 387; Animistic Ltd v Foreign Compensation Commission (1969) 2 AC 147, 171; Aladegbemi v Fasanmade (1988) LPELR 401 (SC) 24 -25; D- B.
Unarguably, this Court, which made the said ex parte order, retains the inherent powers, in deserving circumstances – which are clearly present in the instant case – to discharge the said order, Bogban v Diwhre [2005] 16 NWLR (pt 951) 297. Two of the circumstances, which empower the Court to so act, are the suppression of the fact of the purported service of the Notice of Appeal and the non-disclosure of the material fact of the pendency of the Preliminary Objection challenging the said service, UTB Ltd v Dolmetsch Pharmacy Nig Ltd [2007] 16 NWLR (pt 1061) 520, 542; Animashaun v Bakare [2010] 16 NWLR (pt 1220) 513, 538. l therefore, enter an order setting aside the said ex parte order of this Court for substituted service of the Notice of Appeal – an order made when the Preliminary Objection against its issuance was still pending.

In all, this preliminary objection on the competence of the service of the said Notice of Appeal succeeds. The need to consider the issues raised in the appeal would therefore, automatically abate, L M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (supra); Ananeku v. Ekeruo (supra); NPA v. Eyamba (supra); UBN v. Sogunro (supra). I have no hesitation in striking out the improper and ineffective service complained of. That shall be the order of this Court.
Preliminary Objection succeeds.

ABDU ABOKI, J.S.C.: I have the privilege of reading before now, a draft of the lead judgment just delivered by my learned Brother Hon. Justice Chima Centus Nweze JSC. I agree with the reasonings and conclusions arrived therein.

This appeal is against the judgment of the Court of Appeal, sitting at Abuja, (hereafter called the Court below), delivered on the 17th of December, 2020. The Court below dismissed the appeal of the 1st Respondent on the ground that the Trial Court lacked the jurisdiction to entertain the suit, but proceeded to affirm the consequential Orders of the Trial Court.

The facts leading to this appeal are that the 1st Respondent, by way of an Originating Summons instituted an action at the High Court of the Federal Capital Territory, Abuja on the 7th October, 2020 seeking the interpretation of the following:
“1. Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended), the 1st Defendant gave and/or supplied false information to the Defendant in his INEC form CF001 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
3. Whether by the provisions of Section 87 of the Electoral Act, 2010 (as amended), it is the national body of the Peoples’ Democratic Party (PDP) that has the power to conduct any primary election held on 5th September, 2020, at Ogoja at the Local Government Secretariat, Ogoja, Cross River State for the purposes of nominating its Candidate for the Cross River North Senatorial Bye Election and the said primary election purportedly held wherein the 1st Defendant is claiming and parading himself as having been nominated as the Candidate of PDP is invalid, null and void as a result thereof.
4. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic party (PDP) for the Cross North Senatorial bye election Scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant.

The 1st Respondent consequently sought the following reliefs:-
(a) A DECLARATION that, the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River-North Senatorial bye-election scheduled to hold on 31st October, 2020, or at any other date, whereas he has no such educational qualifications.
(b) A DECLARATION that having given and/or supplied false information relating to his educational qualifications in his Statutory Forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(c) A DECLARATION that, the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
(d) A DECLARATION that, the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020, at Ogoja, Cross River State for the purposes or nominating its candidate for the Cross River North Senatorial bye election was not conducted by the national body of the party and invalid, illegal, null and void.
(e) A DECLARATION that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye elections scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the Party nor monitored by the 2nd Defendant.
(f) AN ORDER OF INJUNCTION restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible to contest for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(g) AN ORDER OF INJUNCTION restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognizing or in any other manner according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name on the result sheet, ballot paper or any other document or material for the said bye election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) of the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(h) AND FOR SUCH FURTHER OR ANY OTHER ORDER as this Honourable Court may deem fit to make in the circumstances.” Upon being served with the Originating Summons, the 2nd Respondent filed a counter affidavit on the 14 October, 2020 and served same on the 1st Respondent. The 3rd Respondent herein [INEC] also filed a counter affidavit on the 16th October, 2020, to the Originating Summons. On the 20th of October, 2020, parties adopted their written addresses in support of the processes filed them and judgment was reserved.

The trial Court on the 4th of November, 2020, in its judgment dismissed the case of the 1st Respondent in its entirety and held as follows:
“Accordingly, as evident from the claim before this Court, I hereby make the following orders, which are incidental to and arising from the substantive findings earlier made herein, and hold that:
a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye election.
b. That the Cross River North Senatorial primary election of the People’s Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial candidate of the PDP was conducted with the authentic and legitimate Delegate List of the Ward and Local Government Areas Executives of the Party as shown by Exhibit B Series and C.
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the People’s Democratic Party for the Cross Rivers North Senatorial Bye election scheduled to hold on 31st October, 2020 or at any other date as clearly shown by Exhibit D.
d. The primary election of the People’s Democratic Party for the Cross River North Senatorial held on 5th September, 2020, was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as shown by Exhibit E.
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the List of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020, forthwith within 48 hours.
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the People Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020. The foregoing is necessary for the final resolution of any dispute arising from the subject matter.”

Dissatisfied with the judgment of the trial Court, the 1st Respondent on the 12th November, 2020 appealed to the lower Court, Abuja Division vide Notice of Appeal Containing five grounds of appeal. The lower Court heard the appeal of the 1st Respondent and on the 17th of December, 2020 delivered its judgment, wherein it dismissed the 1st Respondent’s appeal and affirmed the decision of the trial Court.

The Appellant on the 24th of December, 2020, filed an application before the Court of Appeal, praying for leave to appeal against the Judgment of the lower Court to this Court as an interested party. The said application was granted on the 29th of December, 2020, and same day the Appellant filed his Notice of Appeal to this Court against the judgment of the lower Court.

At the hearing of the appeal, the 1st Respondent filed a motion on notice on the 26/1/2021 praying the following order:-
1. AN ORDER of this Honourable Court striking out the Appellant/Respondent’s Notice of Appeal dated and filed on 9th day of December 2020.
2. AN ORDER setting aside the service of the Appellant/Respondent’s Notice of Appeal dated and filed on 29th day of December 2020 on the 1st Respondent/Applicant, which service was purportedly made on 8th January, 2021.
AND FOR SUCH FURTHER order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

The said application is supported by an affidavit herein attached with it, exhibits JA1 & JA2. Also filed in support of the application is a further and better affidavit and a written address filed on the 9th day of February, 2021.

In opposing the application, the Appellant filed a counter affidavit of 10 paragraphs attached with exhibits on the 10/2/2021, also filed is a written address on the 10/2/2021.

The 2nd Respondent also filed a motion on notice on the 22/1/2012, seeking the following orders:
1. AN ORDER of this Honourable Court striking out the Notice of Appeal dated and filed on 29th December, 2020, as shown at pages 1102 -1109 of the record of appeal, for being incompetent, as the said incompetence affects the jurisdiction of this honourable Court to entertain same.
2. AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstance of this appeal.

The application is supported by a 14 paragraph affidavit and two exhibits attached. The 2nd Respondent also filed a further and better affidavit, a reply on points of law and a written address on the 10/2/2021.

In response, the Appellant filed 3 affidavits; the first affidavit contains 10 exhibits, while the 2nd affidavit contains 2 exhibits and the 3rd affidavit containing 6 paragraphs. The Appellants also filed a further affidavit on the 12/2/2021 and a further and better affidavit on the 14/2/2021 and a written address filed on 11/2/2021. Parties thereafter adopted and relied on their respective processes in support of their stance.

In the 1st Respondent written address filed on the 10/2/2021, a sole issue was formulated for determination:
Whether from the facts and circumstances of this application, the application ought to be granted.

In reply, learned senior counsel for the Appellant in their written address filed on the 10/2/2021 also formulated a sole issue for determination as follows:
“Considering the entire circumstances of this case, alongside applicable precedents of the Honourable Court on the subject of service and notice, inter alia whether this Honourable Court will not dismiss the applicants motion filed on 22nd January, 2020”.

PRELIMINARY OBJECTION
Arguing on the sole issue, the learned senior counsel for the 1st Respondent submitted that a writ of summons or any other mode of commencement of action being an originating process by which a claimant, plaintiff, petitioner or applicant commences a suit in a High Court, a Notice of Appeal is the originating process by which an appeal is commenced in an appellate Court and no doubt a fundamentally important process and when found to be defective, it must be struck out.

It was further submitted that the Appellant failure to serve his Notice of Appeal of this Court on the 1st Respondent is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. He added that Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents and a breach of the Rules is not a mere irregularity but a fundamental breach as the Notice is at the foundation of the appeal. On this, he cited the cases of ROSSEK V. ACB LTD (1993) 8 NWLR (PT 312) 382 AT 437; ATTORNEY GENERAL OF LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT 111) 552 AT 556; POPOOLA V. BABATUNDE (2012) 7 NWLR (PT 1299) 302 AT 331.

Dwelling on the sole issue, Learned senior counsel for the Appellant in their written address submitted that with the indorsement of an address for service on the 1st Respondent, the Notice of Appeal on the face of it is competent and in the circumstance, same cannot be set aside. He added that what can only be set aside is the service on the address and since the law is that substituted service can be ordered with or without a failed attempt at service, the issue of the address for service actually pales into insignificance therefore, the 1st Respondent cannot be insisting on personal service on him when there is a Court order obviating the need for such personal service.

It was contended that an appeal is only decided on the basis of the record of appeal and Paragraphs 6, 7, 8, and 10 of the 1st Respondent affidavit are not only argumentative, but are also legal conclusions and prayers contrary to the mandatory provisions of Section 115 of the Evidence Act and thus, ought to be struck out. In support of this stance, he cited the case of INAKOJU V. ADELEKE (2007) 4 NWLR (PT.1025) 423 AT 607-608 AND BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246 AT 391,

The 2nd written address filed on the 10/2/2021, two issues were formulated for determination as wit:
1. Whether the Notice of Appeal filed by the Appellant on the 29th December, 2020 is not incompetent, having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court.
2. Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that the grounds of appeal are not derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent.

Arguing on the issues 1 & 2, Learned senior counsel for the 2nd Respondent submitted that the Court of Appeal, whose decision the Appellant is appealing to this Court, did not in any portion of its judgment make any pronouncement on the consequential orders made by the trial Court and this was because the 1st Respondent who appealed the judgment of the trial Court to the Court of Appeal did not in his Notice of Appeal challenge the consequential reliefs made by the trial Court. He added that the consequential orders made by the trial Court was not one of the issues that arose at the Court of Appeal for determination and did not therefore form part of the ratio decidendi of the said judgment.

It was further submitted that the notice of appeal filed by the Appellant on the 29th of December, 2020, which does not have the 2nd Respondent’s address for service and was never served on him, is incurably defective which renders this appeal incompetent. He added that the non endorsement of the address of the 2nd Respondent on the notice of Appeal and non service of the Notice of Appeal on him is against the provisions of Order 2 Rule 3 (1) (b) of the Rules of this Court.

Arguing on their sole issue, learned senior counsel for the Appellant submitted that there is no dispute about the fact that the 2nd Respondent has filed his Respondent’s Brief, to which the Appellant has also filed a reply and in the Respondent’s Brief, no challenge to service was made showing that the present motion is not only an afterthought but by the filing of the brief, a waiver of any perceived or imaginary irregularity in service has been waved as he relied on EDIRU V FRSC (2016) 4 NWLR (PT. 1502) 209.

It was further submitted that the essence of service is to give notice to a party in litigation of the pendency of Court proceedings so that such a party can brief counsel to represent his interest in Court and take advantage of the Constitutional imperatives of fair hearing. He placed reliance on the case of SALEH V. ABAH (2017) 12 NWLR (PT. 1578) 100 AT 126.

In their reply on point of law, Learned senior counsel for the 2nd Respondent submitted that the order was obtained through misrepresentation of facts, and as at the time it was granted the Appellant had purportedly served the notice of Appeal and filed his reply brief to the 2nd Respondent’s brief of argument, also when the application of 2nd Respondent praying for the striking out of this appeal was pending before this Court.

It was therefore urged on this Court to discountenance the arguments canvassed by the Appellant who intentionally decided not to serve the 2nd Respondent the notice of Appeal, by first not endorsing his address for service and serving a stranger the notice of appeal meant for him.

It follows therefore that this preliminary objection on the competence of this appeal is meritorious and it is hereby sustained.
The Notice of Appeal is hereby struck out.
Suit SC/CV/1055/2020 decision should abide in this Appeal.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The 1st Respondent by way of an Originating Summons instituted an action at the High Court of the Federal Capital Territory, Abuja on the 5th October, 2020 seeking the interpretation of the following:
“1. Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended), the 1st Defendant gave and/or supplied false information to the Defendant in his INEC form CFOO1 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on September, 2020 at Ogoja Government Secretariat, Ogoja, Cross River state wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate 1st of the party and therefore null and void in its entirety.
4. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant.

The 1st Respondent consequently sought the following reliefs:
(a) A DECLARATION that the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River- North Senatorial bye-election scheduled to hold on 31 October, 2020, or at any other date, whereas he has no such educational qualifications.
(b) A DECLARATION that having given and/or supplied false information relating to his educational qualifications in his statutory forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye election scheduled to hold on 31 October, 2020 or at any other date.
(c) A DECLARATION that the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government secretariat, Ogoja, Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety
(d) A DECLARATION that the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020, at Ogoja, Cross River State for the purposes or nominating its candidate for the Cross River North Senatorial bye election was not conducted by the national body of the party and invalid, illegal, null and void.
(e) A DECLARATION that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye elections scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the Party nor monitored by the 2nd Defendant.
(f) AN ORDER OF INJUNCTION restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible to contest for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(g) AN ORDER OF INJUNCTION restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognizing or in any other manner according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name on the result sheet, ballot paper or any other document or material for the said bye election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) of the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(h) AND FOR SUCH FURTHER OR ANY OTHER ORDER as this Honourable Court may deem fit to make in the circumstances.” Upon being served with the Originating Summons, the 2nd Respondent filed a counter affidavit on the 14th October, 2020 and served same on the 1st Respondent. The 3rd Respondent herein [INEC] also filed a counter affidavit on the 16th October, 2020. On the 20th of October, 2020, parties adopted their written addresses in support of the processes filed by them and judgment was reserved.

The trial Court on the 4th of November, 2020, in its judgment dismissed the case of the 1st Respondent in its entirety and held as follows:
a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye election.
b. That the Cross River North Senatorial primary election of the People’s Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial candidate of the PDP was conducted with the authentic and legitimate Delegate List of the Ward and Local Government Areas Executives of the Party as shown by Exhibit B Series and C.
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the People’s Democratic Party for the Cross Rivers North Senatorial Bye election scheduled to hold on 31st October, 2020 or at any other date as clearly shown by Exhibit D.
d. The primary election of the People’s Democratic Party for the Cross River North Senatorial held on 5th September, 2020, was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as shown by Exhibit E.
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the List of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020, forthwith within 48 hours.
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the People Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020.”

Dissatisfied with the judgment of the trial Court, the 1st Respondent on the 12th November, 2020 appealed to the lower Court, Abuja Division vide Notice of Appeal containing five grounds of appeal. The lower Court heard the appeal of the 1st Respondent and on the 17th of December, 2020 delivered its judgment, wherein it dismissed the 1st Respondent’s appeal and affirmed the decision of the trial Court.

The Appellant on the 24th of December, 2020, filed an application before the Court of Appeal (lower Court) praying for leave to appeal against the Judgment of the lower Court to this Court as an interested party. The said application was granted on the 29th of December, 2020, and same day the Appellant filed his Notice of Appeal to this Court against the judgment of the lower Court.

At the hearing of the appeal, the 1st Respondent filed a motion on notice on the 26/1/2021 praying for the following orders:-
1. AN ORDER of this Honourable Court striking out the Appellant Respondent’s Notice of Appeal dated and filed on 9th day of December 2020.
2. AN ORDER setting aside the service of the Appellant/Respondent’s Notice of Appeal dated and filed on 29th day of December 2020 on the 1st Respondent/Applicant, which service was purportedly made on 8th January, 2021.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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AND FOR SUCH FURTHER order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

The said application is supported by an affidavit and attached therewith are exhibits JA1 & JA2. Also filed in support of the application is a further and better affidavit and a written address filed on the 9th day of February, 2021.

In opposing the application, the Appellant filed a counter affidavit of 10 paragraphs with some exhibits on the 10/2/2021, also filed is a written address on the 10/2/2021.

The 2nd Respondent also filed a motion on notice on the 22/1/2012, seeking the following orders:
1. AN ORDER of this Honourable Court striking out the Notice of Appeal dated and filed on 29th December, 2020, as shown at pages 1102-1109 of the record of appeal, for being incompetent, as the said incompetence affects the jurisdiction of this honourable Court to entertain same.
2. AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstance of this appeal.

In response, the Appellant filed 3 counter affidavits; the first affidavit contains 10 exhibits, while the 2nd affidavit contains 2 exhibits and the 3rd affidavit containing 6 paragraphs. The Appellants also filed a further affidavit on the 12/2/2021 and a further and better affidavit on the 14/2/2021 and a written address filed on 11/2/2021. Parties thereafter adopted and relied on their respective processes in support of their stance.

In reply, learned senior counsel for the Appellant in their written address filed on the 10/2/201 also formulated a sole issue for determination as follows:
“Considering the entire circumstances of this case, alongside applicable precedents of the Honourable Court on the subject of service and notice, inter alia whether this Honourable Court will not dismiss the applicants motion filed on 22nd January, 2020″.

Arguing on the sole issue, the learned senior counsel for the 1st Respondent submitted that a writ of summons or any other mode of commencement of action being an originating process by which a claimant, plaintiff, petitioner or applicant commences a suit in a High Court, a Notice of Appeal is the originating process by which an appeal is commenced in an appellate Court and no doubt a fundamentally important process and when found to be defective, it must be struck out.

It was further submitted that the Appellant’s failure to serve his Notice of Appeal on the 1st Respondent is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. He added that Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents and a breach of the Rules is not a mere irregularity but a fundamental breach as the Notice is at the foundation of the appeal. On this, he cited the case of ROSSEK V. ACB LTD (1993) 8 NWLR (PT 312) 382 AT 437; ATTORNEY GENERAL OF LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT III) 552 AT 556; POPOOLA V. BABATUNDE (2012) 7 NWLR (PT 1299) 302 AT 331.

It was posited that whatever the Appellant purportedly served amounts to nothing given the fact that the address endorsed thereon was a wrong address in view of the combined effect of Order 2 Rules 3 & 4 and Order 6 Rule 2 (1) of the Supreme Court Rules.
Dwelling on their sole issue, learned senior counsel for the Appellant in their written address submitted that with the indorsement of an address for service on the 1st Respondent, the Notice of Appeal on the face of it is competent and in the circumstance, same cannot be set aside. He added that what can only be set aside is the service on the address and since the law is that substituted service can be ordered with or without a failed attempt at service, the issue of the address for service actually pales into insignificance therefore, the 1st Respondent cannot be insisting on personal service on him when there is a Court order obviating the need for such personal service.

In support of this stance he cited the case of INAKOJU V. ADELEKE (2007) 4 NWLR (PT.1025) 423 AT 607-608 AND BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246 AT 391.

The 2nd Respondent in their written address filed on the 10/2/2021, two issues were formulated for determination as wit:
1. Whether the Notice of Appeal filed by the Appellant on the 29th December, 2020 is not incompetent, having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court.
2. Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that the grounds of appeal are not derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent.

Arguing on the issue 1 & 2, Learned senior counsel for the 2nd Respondent submitted that the Court of Appeal, whose decision the Appellant is appealing to this Court, did not in any portion of its judgment make any pronouncement on the consequential orders made by the trial Court and this was because the 1st Respondent who appealed the judgment of the trial Court to the Court of Appeal did not in his Notice of Appeal challenge the consequential reliefs made by the trial Court. He added that the consequential orders made by the trial Court was not one of the issues that arose at the Court of Appeal for determination and did not therefore form part of the ratio decidendi of the said judgment.

It was further submitted that the Notice of Appeal filed by the Appellant on the 29th of December, 2020, which does not have the 2nd Respondent address for service and was never served on him, is incurably defective which renders this appeal incompetent. He added that the non-endorsement of the address of the 2nd Respondent on the Notice of Appeal and non-service of the Notice of Appeal on him is against the provisions of Order 2 Rule 3 (1) (b) of the Rules of this Court.

In their reply on point of law, learned senior counsel for the 2nd Respondent submitted that the order was obtained through misrepresentation of facts, and as at the time it was granted the Appellant had purportedly served the Notice of Appeal and filed his reply brief to the 2nd Respondent’s brief of argument, also when the application of 2nd Respondent praying for the striking out of this appeal was pending before this Court.

It was therefore urged on this Court to discountenance the arguments canvassed by the Appellant who intentionally decided not to serve the 2nd Respondent the Notice of Appeal, by first not endorsing his address for service and serving a stranger the Notice of Appeal meant for him.

OPINION
As per the 1st Respondent’s motion on notice, I have duly considered the grounds for the application to strike out the Notice of Appeal, the affidavits, counter affidavits and further affidavits filed by the parties as well as the written addresses in support of same.

I will deal first with the objection raised in the Appellant’s written address wherein Learned senior counsel urged this Court to strike out paragraphs 6, 7, 8 and 10 of the 1st Respondent’s affidavit in support of the application on the ground that they are not only argumentative, but also Legal conclusions and prayers and as such offends Section 115 of the Evidence Act, 2011. The said paragraph of the 1st Respondent’s affidavit in support reads thus:-
(6). That a Notice of Appeal, in order to be competent, mandatorily ought to be addressed for service and actually served on the Respondents at their addresses and not on any counsel or any other person.
(7). That the Appellant/Respondents Notice of Appeal dated and filed on 29th December, 2020 is incompetent and ought to be set aside.
(8) That the purported service of the Appellant/Applicants Notice of Appeal on the 1st Respondent/Applicants purportedly effected on 8th January, 2021 is fundamentally defective and ought to be set aside.
(10). That the 1st Respondent/Applicant is ex debito justitiae entitled to apply to this Honourable Court to have the purported service of the Notice of Appeal set aside.

Now Section 115 (2) of the Evidence Act 2011 provides that:-
“An affidavit shall not contain extraneous matter, by way of objection, prayer or legal arguments or conclusions.”
Where such is the case in any affidavit, the offending paragraphs are liable to be struck out. In this regard, I find paragraph 6, 7 and 8 to consist of legal arguments, objections and prayers. They are accordingly struck out. See IDU GODWIN EMEKA V. HON. LYNDA CHUBA-IKPEAZU (2016) WRN/SC. 149; ISHAYA BAMAIYI V. THE STATE (2001) 4 SC (PT. 1) 18; GENERAL & AVIATION SERVICES LTD. V. CAPTAIN PAUL M. THAHAL (2004) 10 NWLR (PT. 880) 50.

Paragraph 10 is found to be competent and it is accordingly retained. On the sole issue for determination, as raised in the 1st Respondent’s written address, the law is trite to the effect that failure to notify or serve the opposing party of the institution of any proceedings, other than one which is properly brought exparte connotes that a condition precedent to the exercise of jurisdiction has not been fulfilled and that in such a situation, the party not served is entitled ex debito justitiae to have it set aside by the Court which made it. See AUTO IMPORT. EXPORT VS A.A ADEBAYO & ORS (2003) 1 SCM 154, ATANDA & ORS V AJANI & ORS (1989) 6 SC (PT. 11) 87, OKE VS AIYEDUN (1986) 2 NWLR (PT 23) 548, or (1986) 1 NSCC PAGE 1. Put in another way, service is a precondition to the exercise of jurisdiction by the Courts. Where there is no service or there is a procedural fault in service in subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can put up a defence. If after service, he does not put up a defence the law will assume and rightly too for that matter that he had no defence. Failure to serve process where service is required in a particular manner is a fundamental vice. It deprives the Court of the necessary competence and jurisdiction to hear the suit. That is to say, that the condition precedent to the exercise of jurisdiction was not fulfilled. See KIDA VS OGUNMOLA (2006) 6 SCNJ 165, EIMSKIP LTD VS EXQUISITE INDUSTRIES (NIG) LTD (2003) 4 NWLR (PT. 809) 88.
In the instant case, the first complaint by the 1st Respondent is that he was not served with the Notice of Appeal. Also that there is no address of service on the 1st Respondent in the Notice of Appeal as required by the rules of this Court. The Appellant’s response is that the 1st Respondent was served with the Notice of Appeal through the address provided by the 1st Respondent during the proceedings at the trial Court. By Order 2 Rule 3 (1) (b) of the Supreme Court Rules, Notice of Appeal is required to be served personally. This Court has in a number of cases held that the Notice of Appeal is an originating process and failure to serve same personally on a Respondent constitutes a fundamental vice which renders the appeal incompetent as this Court will be deprived of the jurisdiction to entertain the appeal in any form whatsoever except to make an order to strike out the said appeal. See ADEGBOLA VS OSIYI & ORS (2018) 4 NWLR (PT. 1608) PAGE 1 AT 12-13, where this Court per M.D MUHAMMAD JSC in a similar scenario reinstated the importance of Notice of Appeal as follows:-
“1st Respondent’s preliminary objection draws its strengths from its first arm, the fact of the non-service of the Notice of Appeal on the 1st Respondent. I agree with learned Counsel to the 1st Respondent that Notice of Appeal is the foundation of the appeal and that non service of the Notice if established, goes to the root of appeal. The defect is not a mere irregularity as being fundamental, robs the appellate Court of the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the Notice of Appeal is a sine qua non for the Court to assume jurisdiction over a case. In SGBN LTD VS ADEWUNMI (2003) LPELR 3081 (SC); (2003) 10 NWLR (PT 829) 526, this Court restated its concern thus:-
At page 539.
“Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity.”
Further at Pages 16 -17 of the report, his lordship KEKERE- EKUN JSC proffered an excellent justification for compliance with requirement for personal service of a Notice of Appeal, wherein it was held that:-
“Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the Appeal rest. Being an originating process, it is a fundamental requirement not only of the rules of this Court but also of the constitutional rights of fair hearing guaranteed under Section 36 (1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to heed thereto and place his own side of the case before the Court. In an appeal, service of Notice of Appeal on the Respondent provides him with an opportunity to participate in a compilation of records and to file a cross appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of the Court. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Courts jurisdiction to adjudicate. (Underlining for emphasis)
See also IHEDIOHA VS OKOROCHA (2016) 1 NWLR (PT 1492) 147; KIDA V OGUNMOLA (2006) 6 SCNJ 165.
In HON. HARUNA ALIYU & ANOR VS ALL PROGRESSIVE CONGRESS (APC) & ORS (APPEAL NO. SC. 783/2019) delivered on 30-7-2019. A similar scenario as the present case played out wherein this Court ex debito justitiae ruled as follows:-
“In the light of the incompetent appeal, it is hereby struck out”.
In the aforementioned appeal, it was shown that the 1st Respondent was not served with the Notice of Appeal personally as applicable in the instant appeal. The issue was raised by learned senior counsel for the Appellant with regard to the fact that even if it is correct that the 1st Respondent was not served the Notice of Appeal personally as required by the Rules of this Court but that this anomaly was cured by the motion exparte for substituted service on the said 1st Respondent and which application this Court granted in chambers.
The answer to that is found in the judgment of this Court in ADEGBOLA VS OSIYI SUPRA where their Lordships per KEKERE-EKUN JSC hit the nail on the head by emphasising at page 17 of the report that:-
“On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of this Court. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Court’s jurisdiction to adjudicate.” (Underlining for emphasis).
I had earlier referred to the ruling of this Court in Appeal No. SC. 784/2019 where the Appeal was struck out for being incompetent despite the fact that the parties had filed their briefs of argument in the Appeal. This was done because the failure to serve the 1st Respondent with the Notice of Appeal strip the Court of the jurisdiction to do anything further in the matter other than to make an order for striking out the appeal.
This bring to the fore, the fundamental nature of service of originating process on the parties concerned before a suit can be said to be properly constituted, vide MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR (PT 4) 587, where his lordship Bawamian FJ (now of blessed memory) emphatically stated the position of the law that any defect in competence is fatal, for the proceedings are nullity however well conducted and decided the defect is extrinsic to adjudication.
It will be of immense benefit to the administration of justice in our dear country for this Court at the Apex of judicial hierarchy to maintain and sustain its integrity and reverence by clear and total adherence to the doctrine of stare decisis. For this and the detailed reason as expressed in the leading judgment just delivered by my learned brother C.C NWEZE JSC, I also hold that the 1st Respondent’s preliminary objection has merit and it is hereby upheld.
Accordingly, this appeal is hereby struck out for being incompetent.

I also adopt the reasoning and conclusion reached herein to uphold the 2nd Respondents preliminary objection with an order striking out this appeal.
Parties to bear their costs.

TIJJANI ABUBAKAR, J.S.C.: In this appeal, the complaint by the 1st Respondent is that he was not served the Notice of Appeal, and that there is no address for service on the 1st Respondent in the Notice of Appeal as required by the rules of this Court. The Appellant’s response is that the 1st Respondent was served with the Notice of Appeal through the address provided by the 1st Respondent during the proceedings at the trial Court. By Order 2 Rule 3 (1) (b) of the Supreme Court Rules, Notice of Appeal is required to be served personally. This Court has in a number of endless judicial decisions held that the Notice of Appeal is an originating process and failure to serve same personally on a Respondent constitutes a fundamental vice such that the jurisdiction of this Court cannot be activated to entertain the appeal in any form whatsoever except to make an order striking out the appeal. See ADEGBOLA VS OSIYI & ORS (2018) 4 NWLR (PT. 1608) PAGE 1 AT 12-13, where this Court per brother MUHAMMAD JSC, held as follows and I quote:
“1st Respondent’s preliminary objection draws its strengths from its first arm, the fact of the non- service of the Notice of Appeal on the 1st Respondent. I agree with learned Counsel to the 1st Respondent that Notice of Appeal is the foundation of the appeal and that non service of the Notice if established, goes to the root of appeal. The defect is not a mere irregularity as being fundamental, robs the appellate Court of the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the Notice of Appeal is a sine qua non for the Court to assume jurisdiction over a case. In SGBN LTD VS ADEWUNMI (2003) LPELR 3081 (SC); (2003) 10 NWLR (PT 829) 526, this Court restated its concern thus:-
At page 539-
“Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity.”
My Lord and brother, KEKERE-EKUN JSC, also offered support to this settled position of the law when he said:
“Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the Appeal rest. Being an originating process, it is a fundamental requirement not only of the rules of this Court but also of the constitutional rights of fair hearing guaranteed under Section 36 (1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to heed thereto and place his own side of the case before the Court. In an appeal, service of Notice of Appeal on the Respondent provides him with an opportunity to participate in a compilation of records and to file a cross appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of the Court. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Courts jurisdiction to adjudicate. (Underlining for emphasis)
See: also IHEDIOHA VS OKOROCHA (2016) 1 NWLR (PT 1492) 147; KIDA V OGUNMOLA (2006) 6 SCNJ 165. Also in HON. HARUNA ALIYU & ANOR VS ALL PROGRESSIVE CONGRESS (APC) & ORS (APPEAL NO. SC. 783/2019) delivered on 30-7-2019. A similar situation as the present appeal came out where this Court ruled as follows:-
“In the light of the incompetent appeal, it is hereby struck out”.
In this appeal, it was shown that the 1st Respondent was not served with the Notice of Appeal personally as found in the instant appeal. The issue was raised by learned senior counsel for the Appellant with regard to the fact that even if it is correct that the 1st Respondent was not served the Notice of Appeal personally as required by the Rules of this Court, this anomaly was cured by the motion ex-parte for substituted service on the said 1st Respondent and which application this Court granted in chambers.
In my humble understanding, the answer is found in the judgment of this Court in ADEGBOLA VS OSIYI SUPRA where my Lord KEKERE-EKUN JSC, said as follows and I quote:
“On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of this Court. Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Court’s jurisdiction to adjudicate.” Underlining for emphasis)
The fundamental nature of service of originating process on the parties concerned before a suit can be said to be properly constituted, by the decision in MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR (PT 4) 587, where his lordship Bairamian FJ (now of blessed memory) emphatically stated the settled position of the law that any defect in competence is fatal, for the proceedings constitute nullity however well conducted.

For this and the more comprehensive reasons expressed in the illuminating leading judgment just delivered by my learned brother C.C NWEZE JSC, I also hold the 1st Respondents preliminary objection has merit and deserves to be sustained, it is so sustained.

Accordingly therefore, this appeal is hereby struck out for reasons of incompetence. I also adopt the reasoning and conclusion reached herein to sustain the 2nd Respondents preliminary objection with an order striking out this appeal.
Parties in this appeal shall bear their respective costs.

MUSA DATTIJO MUHAMMAD, J.S.C. (DISSENTING JUDGMENT): 1st and 2nd respondents have challenged the competence of the notice of appeal herein as well as its being served on them thus the jurisdiction of the Court to hear and determine the appeal.
Their objections must be resolved immediately to determine whether or not the Court has the jurisdiction to proceed on the appeal. See ATTORNEY GENERAL LAGOS STATE V. ATTORNEY GENERAL FEDERATION (2014) LPELR – 22701 (SC).

The 1st and 2nd respondents/applicants, by their similar motions on notice filed on the 26th of January 2021 and 22nd January 2021 respectively, seek for:
(i) An order of this Honourable Court striking out the appellant’s/respondent’s appeal dated and filed on 29th December 2020.
(ii) An order setting aside the service of the appellant/respondent’s notice of appeal dated and filed on the 29th day of December, 2020 on the respondents/applicants. And for such further order or other orders as this Honourable Court may deem fit to make.

The grounds upon which the two motions are founded are as contained in the applicants’ motion papers. Each application is accompanied by supporting affidavits and exhibits annexed thereto. Respondents/Applicants also filed written addresses in support of their motions on notice on the 9th and 10th of February 2021 respectively.

Apart from his counter-affidavits in opposition to the respondents/applicants’ motions, the appellant/respondent has filed a written address in response to each of the respondent/applicants’ written addresses.

From the various processes for and against respondents/applicants’ motions, there is hardly any fact left in the realm of controversy between the parties.

A brief summary of these settled facts garnered from the affidavits, counter-affidavits, annexures thereto as well as the record of the appeal is hereinunder stated.

The appellant/respondent, the 2nd respondent/applicant, having contested P.D.P’s primary election along with others and being aggrieved approached the Federal High Court for the determination of who the party’s nominated candidate for the forthcoming Cross River State North District Senatorial bye-election was. Eventually, the appellant/respondent emerged the party’s duly nominated candidate for the bye-election. Whereas 2nd respondent/applicant’s Suit No. FHC/CA/CS/105/2020, HON. JARIGBE AGIM JARIGBE V NATIONAL ELECTORAL COMMISSION & 2 OTHERS was struck out for incompetence, appellant/respondent’s Suit No. FHC/CA/CS/87/2020 DR. STEPHEN ADI ODEY V. INEC & 2 OTHERS, on the other hand, following its merit, succeeded. Given the trial Court’s decision of 3rd December 2020 which pronounced him the P.D.P’s flagbearer at the senatorial election, the appellant contested, won and was declared the elected senator for the Cross River State North Senatorial District. The election took place on 5th December 2020 and appellant/respondent was eventually sworn in as the senator representing the Senatorial District. The suit leading to the appeal upon which the 1st and 2nd respondents’ objections are founded was filed by the 1st respondent/applicant on the 5th October 2020 against the 2nd respondent/applicant and the 3rd respondent herein. The appellant/respondent and the P.D.P. which platform was the issue were not made parties to the suit. Even though it found no merit in 1st respondent/applicant’s suit No. CV/77/2020, the trial Court all the same made positive orders in favour of the 2nd respondent/applicant which affected the appellant/respondent and INEC; the 3rd respondent in the appeal. The Court ordered INEC, to publish the 2nd respondent as P.D.P’s candidate in the forthcoming senatorial bye-election inspite of the subsisting order of a Court of co-ordinate jurisdiction in favour of the appellant/respondent. 1st respondent’s/applicant’s appeal against the trial Court’s decision to the lower Court, appeal No. CA/A/CV/995/2020, was dismissed by the Court. However, the positive orders of the trial Court in favour of the 2nd respondent/applicant against the applicant, P.D.P. and INEC survived the lower Court’s dismissal of the appeal.

The appellant/respondent on becoming aware of the lower Court’s judgment delivered on 17th December 2020 which affects him and was delivered without him being heard, by his application dated 23rd December 2020, sought and obtained leave of the lower Court to appeal against the decision to this Court. Appellant’s application for leave to appeal against the lower Court’s judgment was addressed and served on the respondents/applicants through their respective counsel in the very manner the instant notice of appeal is addressed and served.

At paragraph 3.1, page 2 of the 1st respondent/applicant’s written address in support of his objection to the competence of the appeal, a lone issue for resolution in the determination of his application has been donated, thus: –
“Whether from the facts and circumstances of this application, the application ought to be granted.”

The two issues distilled by the 2nd respondent/applicant for resolution in the determination of his application read.
”2.01. Whether the Notice of Appeal filed by the Appellant on the 29th December 2020 is not incompetent; having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court.
2.02 Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that grounds of appeal are derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent.”

The appellant/respondent has submitted a single issue in relation to 1st respondent/applicant’s objection thus:-
“Considering the entire circumstances of this case, alongside applicable precedents of this Honourable Court on the subject of service and notice, inter-alia, whether this Honourable Court will not dismiss the applicant’s motion filed on 22nd January 2021.”

A similar issue has been distilled by the appellant/respondent for resolution in the determination of 2nd respondent/applicant’s objection.
2nd respondent/applicant’s issues shall be the basis of determining the two motions of the objectors.

In the written address he settled and in his elaboration on same, learned senior counsel for the 1st respondent/applicant submits that appellant/respondent’s notice of appeal dated and filed on 29th December 2020, exhibit JA1, instead of stating in paragraph 5 thereof 1st respondent/applicant’s personal address, indicated his counsel’s address as address of service of the notice. Referring inter alia on IHEDIOHA V. OKOROCHA (2016) 2 NWLR (PT 1492) 147, ADEGOKE MOTORS LTD V. ADESANYA (1989) NWLR (PT 109) 250, KIDA V. OGUNMOLA (2006) 6 SCNJ 165 at 174, ROSSEK V. ACB LTD (1993) 8 NWLR (PT 312) 382 at 437 and ADEGBOLA V. OSIYI & ORS (SC. 1005/2016) (2017) delivered on 2nd June 2017, learned senior counsel contends that the notice of appeal being an improperly served originating process contravenes Order 2 Rules 3 and 4 of the Supreme Court Rule. The notice of appeal, it is submitted, is resultantly incompetent.

Learned senior counsel further argues that appellant/respondent has ignored the difference between the incompetence of the notice of appeal itself and the improper service of the very notice. In the case at hand where, the appellant/respondent’s omission to provide 1st respondent/applicant’s personal address for service, the notice of appeal is itself incompetent. Appellant’s subsequent purported service of the defective notice of appeal on the basis of the exparte order granted by this Court, it is submitted, does not cure the defect. The address of service provided by the appellant/respondent, not being 1st respondent/applicant’s personal address renders the notice of appeal incompetent. Same cannot kick start the instant appeal. Learned senior counsel urges that this Court on the authority of MACFOY V. UAC LTD (1962) AC 152 at 160, ALI V. CBN (1997) 4 (PT 498) 192 and APPEAL NO SC. 783/2019 – HON. HARUNA ALIYU & ANOR V. APC & ORS delivered on 30th July 2019, adjudge the notice of appeal incompetent, uphold the objection and strike out the incompetent appeal.

Learned senior counsel for the 2nd respondent/applicant who in arguing their objection in addition to their written address thereon, adopted and relied on the submissions advanced by 1st respondent/applicant’s learned senior counsel Sam. T. Ologunorisa as arguments for their objection and the 1st relief they seek therefrom.

On their second relief, learned senior counsel argues that all the grounds in appellant/respondent’s notice of appeal which challenge the decision of the trial Court are incompetent. Section 233(1) of the 1999 Constitution only empowers this Court to entertain appeals from the Court of Appeal. The appellant seeks that the consequential orders of the trial Court be set-aside. Relying on AKIBU V. ODUNTAN & ORS (2000) LPELR – 336 (SC) and AYOADE V. THE STATE (2020) 9 NWLR (PT 1730) 577 at 594, learned senior counsel prays under their second issue, in conclusion, that the appeal be struck out.

Responding, Chief Olanipekun SAN for the appellant/respondent relies on the exhibits annexed to appellant/respondent’s counter-affidavits and their written addresses in opposition to the respondents/applicants’ objections to the competence of the notice of appeal to urge for the dismissal of the objections.

Learned senior counsel contends that appellant/respondent’s appeal commenced with his application for leave at the lower Court to appeal against the Court’s judgment. On being obliged, it is submitted, the appellant on the very same date, 29th December 2020, proceeded to file his notice of appeal at the lower Court’s registry using the only addresses the respondents/applicants consistently gave as their addresses for service from the trial High Court through to this Court. The notice of appeal, it is submitted, was served at the addresses the respondents/applicants adopted as their service addresses. It is out of abundance of caution that the appellant on the 18th January 2021 sought and obtained from this Court an order for the substituted service and further served the respondents/applicants in the manner ordered by the Court. The objectors, learned senior counsel further contends, are not being truthful in asserting that appellant’s notice of appeal dated and filed on 29th December 2020 does not contain respondents/appellants’ addresses for service. The fact that the notice of appeal does contain their addresses, learned senior counsel contends, render the decision particularly in IHEDIOHA V. OKOROCHA (supra) inapplicable to the present appeal. The facts of the case at hand being different from those in the cases applicants cite and rely upon, make the cases inapplicable to the present case. It would be wrong, argues learned senior counsel, to allow the cases to rule this case. Learned senior counsel inter-alia relies on OKAFOR V. NNAIFE (1987) 4 NWLR (PT 64) 129 at 137 and ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (PT 109) 250 at 276.

Virtually all the decisions of this Court on the issue, it is further submitted, stress the necessity of giving notice to the defendant/respondent of the complaint levied against him to ensure that his right to be heard is fully protected. Since it is evident from the affidavits for and against the objections raised by the respondents/applicants that they are served and given full notice of the appeal, they must not be allowed to frustrate justice on account of improper service. Respondents have filed their briefs of argument arising from the service on them of the notice of the appeal. Even if the service on the respondents through their counsel is incompetent, a fact the appellant does not concede, learned senior counsel further contends that applicants having been served by substituted means, the jurisdiction of the Court to entertain the appeal accordingly persist. Substituted service, he submits, can be ordered with or without a prior personal service. Learned senior counsel relies on ZAKIRAI V. MUHAMMAD (2017) 17 NWLR (PT 1504) 181 at 228, AHMED V. AHMED (2013) LPELR- 23143 (SC) and MGBENWELU V. OLUMBA (2016) LPELR- 42811 (SC) in concluding that since evidence of service of the notice of appeal on the objectors abound and the regularity of the service so effected has not been rebutted by the respondents/applicants, their objection to the competence of the appeal on that account must fail. He urges that the objections be overruled and dismissed.

Now, common to the objections of the respondents/applicants is firstly, appellant/respondent’s failure to provide in his notice of appeal, dated and filed on 29th December 2020, their personal addresses for service. The applicants further dwell on appellant/respondent’s failure to serve them personally with the notice of appeal.

It is settled that Courts, including this Court are bound by the earlier decisions of the apex Court on same or similar facts determined on the basis of same or similar legislations in their subsequent determination of cases in respect of same or similar facts and on the basis of same or similar legislations. See ATOLAGBE & ANOR V. AWUNI & ORS (1997) LPELR – 593 (SC) and DR. UMAR V. ADMIRAL MURTALA NYAKO & ORS (2014) LPELR – 22878 (SC).
The decisions of this Court senior counsel for the respondents/applicants alluded to as helpful to their cause include IHEDIOHA V. OKOROCHA (supra) and ADEGBOLA V. OSIYI & ORS. (2018) 4 NWLR (PT 1608) 1.
I entirely agree with learned senior appellant/respondent’s counsel that these decisions do not avail the respondents/applicants.
It is certainly not the decision of this Court in the two decisions, nay any of its decisions on the issue, that for a notice of appeal to be competent it must have the personal address of a respondent endorsed on it as address of service.
The decision of this Court in IHEDIOHA V. OKOROCHA (supra) in my lord Okoro JSC’s lead judgment, relevant to the point in the objections of the applicants, for example, reads firstly:-
“…Order 2 Rule 3 provides, imperatively, that where under the Rules of this Court, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed. The extant notices of appeal are required by Order 6 Rule 2(1) of the Rules of this Court to have an address for service on every respondent endorsed thereon. Therefore, reading Order 6 Rule 2(1) together with Order 2 Rule 3 it is clear beyond doubt that this notice of appeal which does not have endorsed on it the address for service of the notice of appeal on each of the 3rd – 36th respondents is fundamentally defective.” (underlining supplied for emphasis).
The Court proceeded as to the essence of endorsement of the address of service on a respondent in the notice of appeal thus:
“Order 2 Rule 3 is all about service of process… The purpose of all types of service of processes is to give notice to the other party of the claim or action against him, …
The issue of service, particularly of an originating process, has always been regarded as one that is fundamental and which goes to the root of proper procedure in litigation…. failure to serve a process, where service is required, renders the process which was not served as required, and the proceeding thereon, a nullity… such omission and the proceeding thereon cannot be regarded as a mere irregularity, but a fundamental vice… the failure goes to the root of the jurisdiction of the Court and therefore accordingly, renders the proceedings, without previous service of the process giving notice of a nullity”.
The Court concluded thus:-
“In the instant case, the notice of appeal does not have endorsed thereon address for service of each of the 3rd – 36th respondents. It offends Order 2 Rule 3. Accordingly, therefore I hereby invoke the sanction for this incompetent process contained in Order 2 Rule 3 of the Rules of this Court, and the said notice of appeal filed on 26th July, 2015 is hereby struck out”. (Underlining supplied for emphasis).
In reiterating the foregoing settled principle, I enthused in ADEGBOLA V. OSIYI (2018) 4 NWLR (PT 1608) 1 at 12-13 thus:-
“Effective service of the notice of appeal, I agree with learned counsel to the 1st respondent, is a condition precedent to the exercise of jurisdiction by this Court. Absence of such service, it follows, is a fundamental omission which bars the Court from assuming jurisdiction to hear and determine the appeal. Proceeding inspite of the non service of the notice of appeal will constitute a denial of the 1st respondent’s right fair hearing as guaranteed under Section 36 of the 1999 Constitution. See MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587 at 595; ESTATE OF THE LATE CHIEF I.S. IDISI V. ECODRIL NIGERIA LIMITED & ORS (2016) LPELR – 40438 (SC).
For the foregoing, 1st respondent’s preliminary objection is well taken. It succeeds and is hereby sustained. Resultantly, the incompetent appeal is hereby struck out.”
The aggregate stand of this Court in the foregoing decisions is to the effect that the non endorsement of an address of service, not necessarily personal address of a respondent, in the notice of appeal as well as the non service of the notice of appeal on the said respondent robs the Court of its jurisdiction to entertain the appeal. The essence of endorsing an address of service in the notice of appeal is to facilitate the service of same on the respondent since service of the notice of appeal in the absence of the address on which same is to be served is indeed an impossibility. It is this absence of an address of service, the consequent absence of the service of the notice of appeal and the ensuing proceedings of the Court inspite of the non-provision of the address of service and/or the non-service of the notice of appeal on the respondent that renders the notice of appeal as well as the subsequent proceedings of the Court incompetent, null and void.
In the case at hand, the addresses of service of the respondents/applicants, are clearly endorsed on the notice of appeal and service of the notice effected on them through the addresses so provided. The respondents/applicants insist that because the addresses endorsed on the notice of appeal for service are those of their counsel rather than their own personal addresses, both the notice of appeal as endorsed and the service of the notice on them carried out through their respective counsel, having contravened the Rules of Court, are null and void thereby robbing this Court the jurisdiction to entertain the appeal. It is within my province to differ.
Hereinunder provided seriation are my reasons.
Firstly, learned senior counsel for the respondents/applicants seem to ignore appellant/ respondent’s summation that having accepted service on them of the latter’s application for leave to appeal at the lower Court through the very address endorsed on the instant notice of appeal, they cannot resile from that fact now.
Respondents/applicants, learned appellant/respondent senior counsel rightly further contends, have, following the leave obtained from this Court, been served by substituted means. Having been served the notice of appeal before the hearing of the appeal, it is contended, the defect in the notice of appeal, if any, is a cured irregularity. It is proper, submits senior appellant/respondent’s counsel, for the Court to proceed to entertain the appeal.
In any event, it is lastly asserted, respondents/applicants have already filed and exchanged their briefs of argument signifying thereby that they have waived the very defect they still dwell upon.
These are very powerful submissions respondents/applicants have failed to wriggle out of.
The extant Rules of the lower Court and this Court in Order 1 Rule 5 and Order 1 Rule 2 respectively define “Appeal” to mean “the filing of notice of appeal and includes an application for leave to appeal”.
The respondents/applicants have not controverted the fact that they were served appellant/respondent’s application for leave to appeal against the lower Court’s judgment to this Court through the very same address endorsed on the instant notice of appeal. It follows that the respondents/applicants had indeed held out the address as their addresses of service upon which the appellant/respondent acted to serve them the notice of appeal. The Evidence Act 2011 in Section 169 thereof provides:-
“When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing”. (Underlining mine for emphasis).
By the foregoing clear and unambiguous provision, it does not lie in the mouths of the respondents/applicants to either say that the address endorsed on the instant notice of appeal does not comply with the requirement of the rules of Court and/or service through same does not constitute effective service. To allow them to depart from the position they led the appellant/respondent to rely and act upon at his detriment is unjust and inequitable. See GARKUWA PINA V. JAGABA MAI-ANGWA (2018) LPELR – 44498 (SC) and FRED EGBE V. THE HON JUSTICE J.A. ADEFARASIN (1987) LPELR 1032 (SC).
In NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822 (SC), I restated the principle as follows:
“Lastly, learned respondent’s counsel are correct in their postulations that if indeed the appellant had withdrawn his 6th relief, through his counsel, and on the basis of the withdrawal forestalled the merits of the relief from being contested by the respondents at and determined by the lower Court, it then no longer lies in appellant’s mouth, in law and in equity to seek for the consideration of such an issue now. He is estopped. See… and Section 169 of the Evidence Act 2011″. Underlining mine for emphasis).
The respondents/applicants who had accepted the service of appellant/respondent’s notice of his application for leave to appeal on them through the same address should not be allowed to assert otherwise now.
Chief Wole Olanipeku SAN for the appellant/respondent also contends that respondents/applicants’ objections, raised after accepting service of the record of appeal and filing their briefs of argument in response to the appellant/respondent’s brief, served on them through the addresses of their counsel, are belated.
I cannot agree more with learned senior counsel in view of the provision of Order 2 Rule 29(1) of the Supreme Court Rules which provide:-
“29. (1) An application to strike out or set aside for non-compliance with these Rules, or for any other irregularity arising from the rules of practice and procedure in this Court, any proceedings or any step taken in any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
Most importantly, the decision of this Court in SALEH V. ABAH (2017) 12 NWLR (PT 1578) 100, a case appositely alluded to by chief Wole Olanipekun, offers overwhelming instruction on the demerit of respondents/applicants common objection. The Court in resolving similar objection as those of the respondents/applicants herein at page 126 of the report held as follows:-
“There are three dimensions of this objection. Its first and main plank resides on the failure to provide an address of service on the first and second respondents in the notice of appeal filed on 18/2/2016 and the earlier notice of appeal filed 8/2/2016. Allied to this point of contention is yet the issue that the first and second respondents were not served personally with these notices. The notices rather were put in the care (or charge) of their common counsel, S. Ameh, SAN and company (Address provided). The said service is argued to have run foul of the relevant provisions of the rules of this Court…” (Underling supplied for emphasis).
The Court determined the merit of the query thus:-
“With regards to the first and main plank of the respondents’ preliminary objection, we are of the emphatic opinion that since the counsel to the respondents was served and he did not deny such service, there is effective and competent service. The contention that the respondents should have been served personally is misplaced. Service on the counsel S. I. Ameh, SAN, being the legally and formally acknowledged representative of the respondents, is good, competent and effective enough. Both respondents were duly served via their counsel, we so hold. The real essence of the Supreme Court Rules on Notice (which is to prevent any party being taken by surprise which in a significant way amount to denial of adequate opportunity to be heard) is achieved as both the first and second respondents were actually (and more then constructively) served via counsel. And there is no dispute as to this state of affairs. Any assumed irregularity is only as to form, rather than substance and seeming irregularity does not bear on jurisdiction and does not amount, by any definition, to denial of notice to the respondents.” (Underlining supplied for emphasis).
My Lords, the foregoing is, as at now, this Court’s decision on the common ground in the objections of the respondents/applicants. We have not been urged by the respondents/applicants to depart from the decision. We are all, the Court and the parties, bound by the decision. See ADISA V. OYINWOLA & ORS (2000) LPELR – 186 (SC) and ARDO V. NYAKO & ORS (2014) LPELR – 22874 (SC).
By the rule of precedent, the respondents/applicants similar objections brought pursuant to the very rules of this Court the applicants in the earlier case founded their objection, must suffer the same fate. The respondents/applicants, like those in the earlier case, do not deny being served. Their grouse is that the service through their counsel which offends the Court’s adjectival rules is a fundamental defect that robs this Court its jurisdiction to proceed. The law, on account of the decision in SALEH V. ABAH (supra), does not support this claim. They have been duly served. I so hold.
We must all be reminded that Rules of Court pursuant to which the respondents/applicants raised their objection to the competence of this Court, unlike the Constitution that confers appellate jurisdiction on the Court, are not sacrosanct. Rules of Court remain the mere vehicles that assist the Court to resolve the matters litigated upon by parties. They must therefore, not be allowed to override the substantive rules which define the right parties seek to enforce. The objections the respondents/applicants agitate herein challenge the procedural rather than the statutory jurisdiction of the Court. Unless these objections in themselves constitute a breach of the statutory jurisdiction of the Court as well, they remain an irregularity which the Court may remedy with a view to settling the real issue in controversy between the parties. See ZAKIRAI V. MUHAMMAD & ORS (Supra) and MOBIL PROD (NIG) UNLIMITED V. LASEPA (2000) 18 NWLR (PT 708) 1.
In conclusion, it must be stated that since the respondents/applicants have not established the fact of the exclusion of an address of service in the extant notice of appeal and their not being served the notice of this appeal by the appellant, their objections must fail. I so hold.

It is unthinkable to order otherwise and in so doing decline the determination of the real issue in controversy between the parties. This Court must not allow technical justice to reign. It has for too long, rather opted to enthrone substantial justice. There is no going back.

It is for all the foregoing that I find no merit in the ground common to the respondents/applicants in their objections.
With my scrutiny of the grounds in the appellant’s notice of appeal, I am convinced that they are complaint against the lower Court’s perverse affirmation of the trial Court’s judgment.

The grounds are not complaints against the decision of the trial Court the 2nd respondent/applicant alleges they are. I so hold.
In sum I find no merit in the objections to which this ruling relates. They are overruled and dismissed.

THE APPEAL
The 4th issue in the appellant’s brief questions the lower Court’s affirmation of the decision of the trial Court which lacks the jurisdiction to hear and determine the 1st respondent suit in the first place.
In APGA V. ANYANWU (2014) 7 NWLR (PT 1407) 541 at 567-568, this Court held as follows:-
“The jurisdiction of the Court of Appeal to entertain an appeal is dependent upon the jurisdiction of the trial Court to hear and determine the suit before it in the first instance. Where the trial Court lacks the jurisdiction to entertain the case, its proceedings are a nullity and the Court of Appeal would not have the jurisdiction to entertain an appeal arising therefrom. An appeal from proceedings initiated conducted without jurisdiction will be liable to be struck out for want of jurisdiction.”
In the case at hand, given that the trial Court lacks the jurisdiction to entertain the case, the lower Court’s decision affirming the incompetent decision of the trial Court must suffer the same fate. I so hold. The judgments of both Courts are hereby accordingly set-aside.
The appellant is entitled to costs of the appeal put at N2,000,000.00 (Two million naira) against each of the 1st and 2nd respondents.

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (DISSENTING JUDGMENT): I have had the privilege of reading before now, a draft of the lead judgment of the majority of the full Court just delivered by my learned Brother Hon. Justice CHIMA CENTUS NWEZE J.S.C. I am afraid l have to depart from the reasoning and conclusions contained therein. I must also note that the outcome of this appeal also determines the outcome of Appeal No SC/CV/1055/2020.

This appeal is against the judgment of Court of Appeal, sitting in Abuja Division delivered on the 17th of December, 2020. The Court of Appeal dismissed the appeal of the 1st Respondent on the ground that as Claimant in the Originating Summons, he could not prove his claims but affirmed the consequential orders of the trial Court granted in favour of the 2nd Respondent who was the adversary of the 1st Respondent.

The facts leading to this appeal are that the 1st Respondent, by way of an Originating Summons instituted an action at the High Court of the Federal Capital Territory, Abuja on the 7th October, 2020 seeking the interpretation of the following questions:
“1. Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended) the 1st defendant gave and/or supplied false information to the Defendant in his INEC form CF001 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold 31st October, 2020 or at any other date, whereas he has no such educational qualification and by the virtue of the fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 8 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja Cross River State wherein the 1st Defendant claims to have been nominated as the Candidate of the party for the Cross River North Senatorial bye election Scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
3. Whether by the provisions of Section 87 of the Electoral Act, 2010 (as amended), it is the national body of the People’s Democratic Party (PDP) that has the power to conduct any primary election held on the 5th September, 2020, at Ogoja, at the Local Government Secretariat, Ogoja, Cross River State for the purposes of nominating its candidate for the Cross River North Senatorial Bye Election and the said primary election purportedly held wherein the 1st Defendant is claiming and parading himself as having been nominated as the candidate of PDP is invalid, null and void as a result thereof.

Whether by the provisions of Section 87 of the Electoral Act, (as amended) the purported nomination of the 1st defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant.The 1st Respondent consequently sought the following reliefs:
(a) A DECLARATION that, the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River-North Senatorial bye-election scheduled to hold on 31st October, 2020, or at any other date, whereas he has no such educational qualifications.
(b) A DECLARATION that, having given and/or supplied false information relating to his educational qualifications in his Statutory Forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(c) A DECLARATION that, the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja Cross River National Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
(d) A DECLARATION that the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja, Cross River State for the purposes of nominating its candidate for the Cross River North Senatorial bye election was not conducted by the national body of the party and is invalid, illegal, null and void.
(e) A DECLARATION that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross North Senatorial bye elections Scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2^nd Defendant.
(f) AN ORDER OF INJUNCTION restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible to contest for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(g) AN ORDER OF INJUNCTION restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognizing or in any other manner according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name in the result sheet, ballot paper or any other document or material for the said bye election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) of the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date.
(h) AND FOR SUCH FURTHER OR ANY OTHER ORDER as this Honourable Court may deem fit to make in the circumstances.”Upon being served with the Originating Summons, the 2nd Respondent filed a counter affidavit on the 14th October, 2020 and served same on the 1st Respondent. The 3rd Respondent herein [INEC] also filed a counter affidavit on the 16th October, 2020, to the Originating Summons. On the 20th October, 2020, parties adopted their written addresses in support of the processes filed and judgment was reserved.

The trial Court on the 4th of November, 2020, in its judgment dismissed the case of the 1st Respondent in its entirety and held as follows at Pg. 321-323 of the record:
“Now, the unassailable deductions to be made from the above are that the 2nd Defendants had requisite notice of the primary election and also monitored same. I so hold.
In the final analyses, I hold that the claimant has failed to establish his case and therefore not entitled to any relief sought, and in consequence, this suit accordingly dismissed.
Now, the 1st Defendant has urged this Court to make certain consequential orders or findings in order to give effect to the judgment hereinabove pronounced.
It is trite law that this Court has inherent judicial powers to make consequential orders upon the determination of any suit before it. But such consequential orders are not made as matter of course, rather upon satisfaction of certain legal requirements.
Indeed, consequential orders are necessary in certain cases in order to give effect to any eventual judgment of the Court so that all issues relating the subject matter will be laid to rest with judicial finality.
Such orders can also be made even where they are not specifically claimed by a party, so long as they are incidental to or arose out of the main suit. See the case of CHIESE v. NICON HOTELS LTD (2007) ALL FWLR Pt. 388 Pg. 1152 at 1164 the Court of appeal per Rhodes-Vivour, J.S.C. held that:
“consequential orders are made to give effect to the judgment delivered by a Court of competent jurisdiction and all Courts have the inherent powers to make such orders, even if they are not claimed by the parties, provided that the order(s) made is/are incidental to the prayers sought.”
The Court also considered the peculiar nature of this case and the need to lie to rest all issues contested therein.
And as rightly submitted by the learned counsel for the 1st Defendant, such consequential reliefs can lie even where the 1st Defendant did not file any counterclaim and also orders of injunction can also be made as a consequential relief as held in the case of Amaechi v. Independent National Electoral Commission & Ors (2008) LPELR-446 where the Supreme Court per Musdapher, J.S.C. held that:
“It is the law even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment or contains matters. It is settled law that Court can order an injunction even if it is not specifically claimed but appears incidentally necessary to protect the established right.”
I have perused the totality of Exhibits A, B Series, C, D and E and the credible material evidence put forward by the 1st Defendant, by which he controverted all allegations of the claimant. Having dismissed all the claims or allegations of the claimant on the merit, the facts asserted against the 1st Defendant are indeed bare and the copious documentary evidence before this Court shows among other thing that the 1st Defendant indeed did not give any fact information to the 2nd Defendant, the authentic and Court-sanctioned delegate list was used in the conduct to the 2nd defendant who also monitored the primary election. It is therefore imperative to make a consequential pronouncement giving effect to these clear and unassailable findings of the Court.
Accordingly, as evident from the claim before this Court, I hereby make the following orders, which are incidental to and arising from the substantive findings earlier made herein, and hold that:
a. The 1st Defendant did not give or supply any false information in his Nomination form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross-River North Senatorial Bye election.
b. That the Cross River North Senatorial primary election of the People’s Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial Candidate of the PDP was conducted with the authentic and legitimate delegate list of the ward and Local Government Areas Executives of the Party as shown by exhibit B Series and C.
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the People’s Democratic Party for the Cross Rivers North Senatorial Bye election scheduled to hold on 31st October, 2020 or at any other date as clearly shown by Exhibit D.
d. The primary election of the People’s Democratic for the Cross River North Senatorial held on 5th September, 2020, was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as shown by exhibit E.
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the list of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020, forthwith within 48 hours.
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020. The foregoing is necessary for the final resolution of any dispute arising from the subject matter.” My lords, this case was fought exclusively between the 1st Respondent on one hand as Claimant and the 2nd and 3rd Respondents on the other hand as Defendants. Dissatisfied with the judgment of the trial Court, the 1st Respondent on the 12th November, 2020 appealed to the lower Court, Abuja Division vide Notice of Appeal containing five grounds of appeal. The lower Court heard the appeal of the 1st Respondent and on the 17th of December, 2020 delivered its judgment, wherein it dismissed the 1st Respondent’s appeal and affirmed the decision of the trial Court.

The Appellant on the 24th of December, 2020, filed an application before the Court of Appeal, praying for leave to appeal against the judgment of the lower Court to this Court as an interested party. The said application was granted on the 29th December, 2020, and on the same day the Appellant filed his Notice of Appeal to this Court against the judgment of the lower Court.

Before delving into the substance of the appeal, I have to consider the motion on notice of preliminary objection to the jurisdiction of this Court on the basis that the notice of appeal was not served on the 1st and 2nd Respondents. At the hearing of the Appeal, the 1st Respondent moved the motion on notice on the 26/1/2021 praying the following orders: –
1. AN ORDER of this Honourable Court striking out the appellant/Respondent’s Notice of Appeal dated and filed on 9th day of December 2020.
2. AN ORDER setting aside the service of the Appellant/Respondent’s Notice of Appeal dated and filed on 29th day of December 2020 on the 1st Respondent/Applicant, which service was purportedly made on 8th January, 2021.
And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance of this case.

The said application is supported by an affidavit to which Exhibit JA1 & JA2 were attached. In support of the application is a further and better affidavit and a written address filed on the 9th day February, 2021.

In opposing the application, the Appellant filed a counter affidavit of 10 paragraphs attached with Exhibits 1-6 on the 07/2/2021. A written address was also filed on the 10/2/2021.

The 2nd Respondent also moved his motion on notice filed on the 22/1/2012, seeking the following orders:
1. AN ORDER of this Honourable Court striking out the Notice of Appeal dated and filed on 29th December, 2020, as shown at pages 1102 — 1109 of the record of appeal, for being incompetent, as the said incompetence affects the jurisdiction of this Honourable Court to entertain same.
2. AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstance of this appeal.

The application is supported by a 14-paragraph affidavit and two exhibits attached. The 2nd Respondent also filed a further and better affidavit, a reply on points of law and a written address on the 10/2/2021.

In response, to the motion of the 2nd Respondent, the Appellant filed 3 affidavits; the first affidavit contains 10 exhibits, while the 2nd affidavit contains 2 exhibits and the 3rd affidavit contains 6 Exhibits. The Appellant also filed a further affidavit on the 12/2/2021 and a further and better affidavit on the 14/2/2021 and a written address on 11/2/2021.

In the 1st Respondent written address filed on the 10/2/2021, a sole issue was formulated for determination:
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In reply, learned senior counsel for the Appellant in his written address filed on the 10/2/2021 also formulated a sole issue for determination as follows:
Considering the entire circumstances of this case, alongside applicable precedents of the Honourable Court on the subject of service and notice, inter alia whether this Honourable Court will not dismiss the applicants motion filed on 22nd January, 2020.

Learned senior counsel for the 1st Respondent submitted that a writ of summons or any other mode of commencement of action being an originating process by which a claimant, plaintiff, petitioner or applicant commences a suit in a High Court, likewise a Notice of Appeal is the originating process by which an appeal is commenced in an appellate Court and no doubt a fundamental process which if found to be defective, must be struck out by the Court.

It was further submitted that the Appellant’s failure to serve his Notice of appeal to this Court on the 1st Respondent is fatal to the jurisdiction of the Court to entertain the appeal having not been initiated by the due process of the law. He added that Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents and a breach of the Rules is not a mere irregularity but a fundamental breach as the Notice is at the foundation of the appeal. On this, he cited the case of Rossek v. ACB Ltd (1993) 8 NWLR Pt. 312 Pg. 382 at 437; Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR Pt. III Pg. 552 at 556; Popoola v. Babatunde (2011) 7 NWLR Pt. 1299 Pg. 302 at 331.

It was submitted that whatever the Appellant purportedly served amounts to nothing given the fact that the address endorsed thereon was a wrong address in view of the combined effect of Order 2 Rules 3 & 4 and Order 6 Rule 2 (1) of the Supreme Court Rules.

In reply, learned senior counsel for the Appellant submitted that with the endorsement of an address for service on the Respondent, the Notice of Appeal on the face of it is competent and in the circumstance, same cannot be set aside. He added that what can only be set aside is the service on the address and since the law is that substituted service can be ordered with or without a failed attempt at service, the issue of the address for service actually pales into insignificance and that therefore, the 1st Respondent cannot at this point be insisting on personal service on him when there is a Court order obviating the need for such personal service.

It was contended that an appeal is only decided on the basis of the record of appeal and Paragraphs 6, 7, 8 and 10 of the 1st Respondent affidavit are not only argumentative, but are also legal conclusions and prayers contrary to the mandatory provisions of Section 115 of the Evidence Act 2011 and thus ought to be struck out. Senior counsel cited INAKOJU V. ADELEKE (2007) 4 NWLR Pt. 1025 Pg. 423 at 607-608 AND BUHARI V. INEC (2008) 19 NWLR Pt. 1120 246 at 391.

The 2nd Respondent in his written address filed on the 10/2/2021, distilled two issues for determination as follows:
1. Whether the Notice of appeal filed by the Appellant on the 29th December, 2020 is not incompetent, having regard to the fact that the said notice does not contain the address of the 2nd Respondent for service and was not served on the 2nd Respondent as provided by the Rules of this Honourable Court.
2. Whether having regard to the fact that the gravamen of the instant appeal amounts to a challenge of the decision of the trial Court, coupled with the fact that the grounds of appeal are not derivable from the ratio decidendi of the Court of Appeal decision, this appeal is competent.

Arguing on the issues 1 & 2, Learned senior counsel for the Respondent submitted that the Court of Appeal, whose decision the appellant is appealing to this Court, did not in any portion of its judgment make any pronouncement on the consequential orders made by the trial Court and this was because, the 1st Respondent who appealed the judgment of the trial Court to the Court of Appeal did not in his Notice of Appeal challenge the consequential orders made by the trial Court. Thus, senior counsel argued the grounds of appeal herein are not one of the issues that arose at the Court of Appeal for determination and did not therefore form part of the ratio decidendi of the said judgment.

It was further submitted that the notice of appeal filed by the Appellant on the 29th of December, 2020, which does not have the 2nd Respondent’s address for service and was never served on him, is incurably defective which renders this appeal incompetent. He added that the non-endorsement of the address of the 2nd Respondent on the notice of Appeal and non-service of the Notice of Appeal on him is against the provisions of Order 2 Rule 3 (1) (b) of the Rules of this Court.

In replying on this issue, learned senior counsel for the Appellant submitted that there is no dispute about the fact that the 2nd Respondent has filed his Respondent’s Brief, to which the Appellant has also filed a reply and in the Respondent’s Brief, no challenge to service was made showing that the present motion is not only an afterthought but by the filing of the brief, a waiver of any perceived or imaginary irregularity in service has been waived, senior counsel relied on Ediru v. FRSC (2016) 4 NWLR Pt. 1502 pg. 209.

It was further summited that the essence of service is to give notice to a party in litigation of the pendency of Court proceedings so that such a party can brief counsel to represent his interest in Court and take advantage of the Constitutional imperatives of fair hearing. Senior counsel cited Saleh v. Abah (2017) 12 NWLR Pt. 1578 100 at Pg. 126.

He concluded by stating that the facts of the cases cited by the applicant are different from the present scenario, where there are distinct addresses endorsed against the names of each Respondent, particularly the applicants. Senior counsel conceded that the first address for service was the address of the counsel to the Respondents.

In their reply on points of law, learned senior counsel for the 2nd Respondent submitted that the order was obtained through misrepresentation of facts, and as at the time it was granted, the Appellant had purportedly served the notice of appeal and filed his reply brief to the 2nd respondent’s brief of argument, while the application of 2nd Respondent praying for the striking out of appeal was pending before this Court.

It was therefore urged on this Court to discountenance the arguments canvased by the Appellant who intentionally decided not to effect personal service on the 2nd Respondent, the Notice of Appeal, by not endorsing his personal address for service and serving a stranger the Notice of Appeal meant for him.

My Lords, the common complaint of the 1st and 2nd Respondent/Applicants is that the Appellant/Respondent’s failure to provide in his notice of appeal dated and filed on 29/12/2020 their personal address for service but gave the office address of the 1st and 2nd Respondent’s counsel as the address for service was wrong in law. The further complaint is also that the Respondents were not personally served. Senior counsel’s strong point on this is that the defect in the service of the notice of appeal cannot be cured by the exparte order for substituted service.
With the greatest respect, the filling of the notice of appeal and its competence is quite different from the competence of the service of the said notice of appeal. There is no inherent incompetence in the notice of Appeal filed before this Court. What is in issue here is the incompetence of its service. It cannot be the law that a notice of appeal is incompetent if the personal address of the respondent is not indicated therein. Order 2 Rule 3 and Order 6 Rule 2 (1) of the Supreme Court Rules 2011 requires that the address of the respondent be endorsed on the Notice of Appeal. The rules are quite clear. There is no imputation that the address put on the process must be the personal address of the Respondent so long as the Respondent is personally served.
If the Respondent lives at the material time with his brother within jurisdiction in Okene for example and the address of his brother is put on the address for service and he receives the service, he cannot turn around to complain that he was not served as his own personal address is Abuja where he ordinarily resides. That would be a ridiculous interpretation of the law. What is important is that the Respondent is served personally. Whatever address put on the Notice of Appeal can always be changed where the Appellant or Plaintiff realizes that the Respondent cannot be easily personally served at the initial address on the Notice of Appeal. The Notice of Appeal still remains competent through all the changes of address and means of serving it. It is the non-endorsement of any address for service on the Defendant or Respondent, not necessarily personal address of a respondent in the Notice of Appeal and the lack of personal service that deprives the Court of its jurisdiction.
I am of the view that Ihedioha v. Okorocha (2016) 1 NWLR Pt. 1492 Pg.147 is not applicable in the circumstances of this case. My Lords, in this case, the Appellant on the 18th of January 2021, sought and obtained from this Court an order for substituted service and further served the Respondents/Applicants in the manner ordered by this Court.
My Lords, most of the cases cited by senior counsel for the Respondents relates to where no address at all was provided for service. Failure to provide an address for service is different from failure to effect personal service on the respondent, see Saleh v. Abah (2017) 12 NWLR Pt. 1578 100 at Pg. 126.

My Lords, it is trite that there is a great difference between the substantive and procedural jurisdiction of a Court. All a Court has to do to assume jurisdiction is to look at the reliefs sought by the Claimant/Appellants in order to determine whether the subject matter falls within the constitutional/statutory and territorial jurisdiction of the Court.
The gravamen of the Respondents’ arguments is that because the notice of preliminary objection was pending between the parties, then the Court had no jurisdiction to entertain the motion exparte. It is in my humble view, misconceived. The preliminary objection herein is a complaint against the competence of this Court to entertain the suit because the Respondents were not properly served. It was a challenge to the procedural competence of this Court. My Lords, the Appellant is at liberty to regularize his position even though there was a pending notice of objection to the irregular service. An infraction that merely robs the Court of procedural competence rather than its substantive competence can always be cured. Where a Court has substantive jurisdiction as in this appeal and there is lack of competence because of a procedural hitch, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same. See Mobil Producing v. LASEPA (2002) 18 NWLR Pt. 786 Pg. 1 at 32; Eti-Osa LG v. Jegede (2007) 10 NWLR Pt. 1043 Pg. 537 at 555; RFG LTD & Anor v. Skye Bank Plc (2012) LPELR-7880 CA; Abubakar v. Nasamu (2012) 17 NWLR (Pt. 1330) 407 @ 593 Para. B, where this Court held that:
“It is settled principle that where there are two motions, one seeking to terminate a case and the other seeking to keep it alive for determination on the merit, and where a word bears two meanings, one in form of terminating and the other tending to keep it alive for determination on the merit, the later should be preferred to the former.”
It has always been the law that where application to regularize an appeal is before the Court, same should be taken first in the interest of justice. Your Lordships are humbly referred to the decision in Nalsa Team & Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 @ 676 -677 Paras. H -E, where Kabiri-Whyte J.S.C. held as follows:
“In the exercise of its discretion to hear applications before it, the Court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See Khawam v. Elias (1960) FSC. 2224; (1960) SCNLR 516. Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant whose application to regularize his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion, see Abiegbe & Ors v. Ugbodume & Ors (supra).
In the instant case, the preliminary objection was that the Court had no jurisdiction to hear the application since there was no competent appeal before the Court. This is thus raising a fundamental issue as to the vires or jurisdiction of the Court. Learned Counsel then went further to argue that there being no valid appeal, the Court is not competent to entertain the application.
On examination of arguments of counsel in the Court below, it is obvious that the main ground of the contention was the incompetence of the interlocutory appeal on the ground that leave of Court was not obtained. The only point relevant to the application was the contention that the motion did not contain a prayer for extension of time within which to file an appeal.
I think it is well settled that the Court has always claimed to have the jurisdiction to decide whether it can exercise jurisdiction in respect of an issue. See Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517 SC. Hence the mere raising of the issue of jurisdiction does not deprive the Court from the exercise of jurisdiction. Thus, in the issue before us the Court below undoubtedly was entitled in the exercise of its discretion to decide, in the interest of justice and on the facts of the case before it, which of the two motions it will hear first.
In this case, the Court decided to hear the application to correct the errors in the appeal. This it is perfectly entitled in the interest of justice to do. The Court below exercised its discretion properly. There is no basis for the interference of this Court.”
Your Lordships are also referred to the decision in South Atlantic Petroleum Ltd v. The Minister of Petroleum Resources (2013) 12 S.C. Pt. II Pg. 46 @ Pgs. 66 -67 Lines 5-10. In that case, the Respondent raised a notice of preliminary objection in its brief of argument whereby it challenged the competence of the appeal on the ground that the notice of appeal contained grounds of mixed fact and law and the Appellant never sought leave to file same. Subsequently, the Appellant filed an application for trinity prayers to regularize its notice of appeal and a deeming order. The Respondent contended that the Court should not determine the application for trinity prayers because it would overreach its objection and that the objection ought to be heard first together with the main appeal. In rejecting the Respondent’s stance, this Court held as follows:
“Learned senior counsel to the Respondent must particularly be reminded of the facts as well as the decision of this Court in: Okpala v Ibeme (1989) 3 SC (P. II) 61. The appellant before the Court in the case had filed his notice of appeal dated 29th July, 1985 without obtaining leave of the Court. The notice was filed by appellant’s former counsel Mr. G.N.A. Okafor. Senator N. N. Anah, whom the appellant subsequently engaged, on realizing that the ground of appeal in the Appellant’s notice of appeal had raised questions of facts and mixed law and fact, moved the Court for the trinity prayers in order to regularize Appellant’s defective notice and grounds of appeal having been filed without leave. He urged the Court to deem the said notice of appeal as properly filed. Parties had filed, and exchanged their briefs of arguments which they adopted in the course of the hearing of the appeal. Learned Appellant counsel moved the Court sequel to realizing the defect inherent in Appellant’s already filed notice of appeal. The Court per Nnaemeka- Agu, J.S.C., (of blessed memory) granted Appellant’s application thus.
“There are good reasons why the application should be granted. To begin with much as the filing of a notice of appeal which is in accordance with Order 8 Rule 2 of the Rules as well as a form 12 is a necessary prerequisite for the hearing of an appeal, the rules provide that a notice of appeal may be amended at any time (see Order 8 Rule 4 )… the appeal had been fully argued before the defect was detected. In circumstances, in the interest of justice, the appellant is granted.”
Learned senior counsel to the Respondent maintains that having filed a notice of preliminary objection to the competence of Applicant’s appeal and argued same in their brief with the Applicant joining issue on the preliminary objection, the best of practice requires that the appeal rather than Applicant notice of motion be heard. Again, learned senior counsel simply cannot be right.
In Tsokwa Oil Marketing Co. v. B.O.N. Ltd. (supra) this Court has held that the filing of preliminary objection showing errors in the process of an appeal will not prevent the Appellant from making an application to seek to correct the errors. It remains the principles as well that the Appellant can even start the process afresh on a more appropriate footing. At Page 41 of the law report, Ogundare, J.S.C., (of blessed memory in his concurring judgment) stated the principles more succinctly thus: –
“l think Oguntade, J.C.A., gave a correct decision on the preliminary objection. In granting leave to file additional Grounds 9 and 10, no time limit was imposed for the filing. It follows that when Defendant filed the Grounds on 22/12/94, it could not be said that the ground was filed out of time. Obviously, the Defendant’s earlier brief contained arguments on ground of appeal that were yet to be filed. To correct this error and meet Plaintiff’s objection, the Defendant in 1995 filed another brief captioned “amended Appellant’s brief” incorporating arguments on Grounds 9 and 10 that were filed in December, 1994. What then is Plaintiff’s complaint? I too, see no merit in its complaint. The Court below rightly struck out its objection.” (Underlining supplied for emphasis).
Given the foregoing two decisions of this Court, it certainly cannot be right for the learned senior counsel to the respondent to insist that the instant application is either belated and/or overreaching. The Applicant seeks to regularize its notice of appeal with the view to having the controversy between the parties in the appeal fully settled by the Court. The justice of the case requires that Appellant be obliged. The application being meritorious is hereby granted in terms.”
The above has always been the jurisprudence of substantial justice in this Court and it is the duty of this Court to maintain its jurisprudence of substantial justice rather than technical justice. This Court should not be fixated on substantial justice rather than technical justice.
Therefore, in the circumstances of this case, once the motion for substituted service was filed, it took precedence over the preliminary objection. It had to be heard first and since it was granted the preliminary objection became otiose. The Respondent were duly served according to the order of this Court.

Furthermore, there is no application to set aside the order of substituted service made. It is therefore binding, valid and subsisting. The Court will not sit on appeal against that order. It is my view respectfully that by allowing the Respondents to move the preliminary objection at the hearing of the appeal, this Court was sitting on appeal in respect of its order for substituted service earlier made. The notices of objection by the 1st and 2nd Respondents are misconceived and overruled.

Where an interested party or one who would be radically affected by the outcome of litigation was not made a party to the action, the judgment and orders would be a nullity. See Azubuike v. PDP (2014) 7 NWLR Pt. 140, Pg. 291 at 314. The trial Court has no jurisdiction, the lower Court’s decisions also devoid of jurisdiction:
“All the three issues distilled for determination of this appeal are hereby resolved against the Appellant. Before bringing this judgement to a close it is quite necessary to state categorically that the claimant has no locus standi to institute this action and the Appellant has no cause of action.
By his relief, the Appellants did not participate in the People’s Democratic Party Primary to select or nominate the candidate of the party to contest in the Cross- River North Senatorial District bye election scheduled to hold on 31st October 2020 or at any other date. There are plethora of authorities of this Court and the apex Court to effect that the Appellant has no locus standi. Suffice to refer to some viz: RT HON PRINCE T. TARZOOR VS ORTOM SAMUEL IORAER & ORS (2016) 3 NWLR PT. 1500 463 AT 501 A-D.”
In respect of the consequential orders the Hon Justices of the Court of Appeal held as follows:
“The Appellant’s case is thus a crass abuse of the process of the Court. It is most frivolous and vexations action that is of no value. He is neither an Aspirant nor is he a candidate of the primary in the senatorial election. He does not come within the penumbra of Section 87(9) of the Electoral Act 2010 as Amended. On this score alone the Appellant’s action ought to have been outrightly dismissed in limine for being an abuse of Court process.”
It is clear My Lords that both lower Courts were inveighed into making orders that adversely affects the right and privileges of the Appellant without hearing him. In the first instance, the Court of Appeal having held that the 1st respondent was a meddlesome interloper whose claim should be dismissed should not have gone on to grant consequential orders not emanating from reliefs sought by a successful claimant. By shifting to grant consequential reliefs in favour of the 2nd Respondent, which reliefs affected his political party, who were not made parties to the suit and appeal, violence had been done to the rules of natural justice.
In this case, the orders of the Court were in favour of the 2nd respondent, do not arise and could not have arisen from a judgment which found that “the claimant has failed to establish his case and therefore not entitled to any relief sought”. The position of the law has remained static that a consequential order must be directly traceable to the reliefs expressly sought from the Court. Consequential reliefs/orders are not a carte blanche to impose orders from a void with no link at all to the actual case. In Odofin v. Agu (1992) 3 NWLR Pt. 229, 350 at 372, this Court restated this position of the law in the following terms:
“A consequential order is one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that other judgment or order duly prayed for and made.”
The thinking of the lower Court that the 1st respondent asked for “such further or other orders as the Court may deem necessary to make in the circumstances” entitles the Court to make consequential orders in favour of his opponent is strange to our laws. The 2nd respondent did not make a counterclaim to which the consequential prayers granted to him can be attached. See Bellview Airline Ltd. v. Aluminum City Ltd. (2007) LPELR-8465(CA) where the Court rightly held that
“The arbitrator rightly, in my view, ignored it, not being a father Christmas, she cannot scrounge for a relief which is not claimed and grant it.”
In Folorunsho v. Shaloub (1994) NWLR Pt. 333 413 at 420 the Court held as follows:
“The prayer for ‘such further or other orders’ in motion paper constitutes no specific or known prayers. As such it is worthless and need not be considered.”
In Oye v. Gov. of Oyo State (1993) NWLR Pt. 306, 437 at 452, the Court held thus:
“The omnibus relief ‘such further or other orders as this honorable Court may deem necessary to make in the circumstances’ does not constitute a specific or known prayer and is therefore worthless as it is not the business of the Court to tell an applicant what relief he may contemplate but not seek.”
The feeble reasonings of the Respondents on this point is that the Appellant should have sought to be joined. There is no evidence that the Political Party and the Appellant were served and refused to defend their position in this suit and the appeal before the Court of Appeal. That with the greatest respect is a self-serving argument which cannot hold water. A person cannot fight litigation he does not know about.
My Lords, in this appeal it is clear from the records and the fact that the Appellant’s right as a sitting senator has been compromised by the consequential orders made whereas he was never called upon to defend himself or made a party to the suit and this in my humble view rendered the judgment of the trial Court a nullity. This case is similar to PDP V. Ezeonwuka (2018) 3 NWLR Pt. 1606, Pg. 187, where the 5th respondent who won the primary election of a political party was eclipsed, as it were, from being made a party at trial, but succeeded in the appeal in this Court as an interested party to this Honourable Court.
The rules of fair hearing ‘Audi Alteram partem’ has been violated by the two lower Courts as enshrined in Section 36 of the 1999 Constitution (as altered). It is the duty of every Court to ensure that the parties who are likely to be affected by the result of an action be joined. See Bello v. INEC & Ors (2010) 8 NWLR Pt. 1196 Pg. 342 SC, Oyeyemi & Ors v. Owoeye & Anor (2017) LPELR-41903 (SC). There is no doubt that a suit and determination without the necessary parties is a nullity.
In Hamman Joda v. Ugwu (2019) LPELR-48697(CA), the Court held inter alia as follows: –
“It is trite that the proper parties must be before the Court to whom rights and obligations arising from the cause of action attach. The question of proper parties is very crucial as it affects the jurisdiction of the Court. Where the proper parties are not before the Court, the Court lacks jurisdiction to hear the suit. In the case of EHIDIMHEN VS. AHMADU MUSA & ANOR (2000) LPELR – 1051 (SC) P. 46, Paragraph A. (also cited in (2000) 8 NWLR (PT. 669) P. 540; (2000) 4 SC (PT. II) P. 166 and (2000) FWLR (PT. 21) P. 930, his Lordship Achike, J.S.C. stressing on the need for proper parties to be before the Court held thus: “It is imperative that for an action to succeed the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach.”
Also, in POST MASTER GENERAL & ORS. V. AGBASI (2006) LPELR-11926(CA) it was stated that:
“It is settled law that where proper parties are not before a Court the Court is without jurisdiction to adjudicate. See PLATEAU STATE v. A-G FEDERATION (2006) 1 SC (pt. 1) 64.”
The shenanigans which occurred in this case was sought to be discouraged by the Circular, issued by the Honourable Chief Judge of the Federal High Court, on 26/06/2020. By the said circular, all Courts in the Federal High Court were advised not to entertain or continue to entertain any political case which does not originate from their Judicial Divisions. Nothing could be wiser to follow in order to save the image of the judiciary.
The Appellant affected by these orders was not joined as a party in the two lower Courts and has come to us for justice. What happened at the two Courts below is the type of situations that gives the administration of justice a bad name.

The surreptitious suit filed behind the party and the elected candidate in Abuja should have been filed at the Calabar Division of the Federal High Court where the cause of action arose.
How do we chase a litigant who was not heard from the throne of justice on whatever technical pretext? I follow the opinion of this Court as stated in Ararume v. Lady Uchenna Ubah supra that you cannot shave a person’s head behind his back. No doubt the Appellant’s head was shaved behind his back by the lower Courts. In the circumstances, the decision in Suit No. CV/77/2020 wherein the necessary and proper parties were not before the Court is a nullity being in violation of the Constitution and rules of natural justice. It is hereby struck out.

The judgment of the lower Court on which it is based is also a nullity and is hereby struck out. In effect, this appeal has merit and the reliefs urging the Court to nullify the consequential orders is hereby granted and the appeal is allowed. Appeal Allowed. No order as to costs.

EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING JUDGMENT): I had a preview of the lead majority judgment delivered by my learned brother Lord Justice Chima Centus Nweze JSC. I also had a preview of the lead Minority Judgment delivered by my Learned brother Lord Justice Musa Dattijo Muhammad JSC. With the greatest respect to the very distinguished Lord Justice Chima Centus Nweze JSC, I do not agree with the entirety of the reasoning, conclusions and orders in the lead majority judgment.

I agree with the reasoning, conclusions and orders in the very erudite lead Minority judgement of my learned brother, Lord Justice Musa Dattijo Muhammad JSC.

This case presents very unusual and strange features. An appeal is being struck out as incompetent on ground of improper service of the notice of appeal on the 2nd respondent inspite of the facts that the said respondent was admittedly served the notice of appeal through addresses he furnished at the lower Court as his counsel address, that the said respondent filed his brief, that this Court, upon an application ex parte for an order that the said respondent be served the said notice of appeal and other processes in this appeal by substituted means, that the said order was executed and they were served by substituted means before the hearing of the appeal commenced and the said respondents through their respective counsel participated in the hearing of the appeal.

The practice of Courts across jurisdictions is that where before the hearing of a case commences and a party complains that he has not been served or has been improperly served with the originating or other process, as happened in this case, the proper course for the Court to adopt, is to cause the said originating process to be served on the said party so that the hearing of the case can proceed. The 2nd respondent having filed a motion on notice complaining that he was not personally served the notice of appeal and that the service on him of the notice and other processes through his counsel at the lower Court is not proper service, there was nothing wrong in the appellant reacting thereto by applying ex parte to this Court to order that he be served the notice of appeal and other processes by substituted means as the relevant Rules permit. Upon such application, this Court ordered that the 2nd respondent be served by substituted means. The order was executed and the 2nd respondent was indisputably so served. This Court made the order to ensure that the said respondent was properly served before the hearing of the appeal can commence. The above procedure and process is common in all Courts across jurisdictions and is routine and regular in all Courts in Nigeria including this Court. The repeated service by substituted means of the notice of appeal and all processes on the respondent by order of this Court, further rendered the 2nd respondent’s objection baseless, unnecessary and incompetent.

This Court having caused the processes to be served by substituted means, should have struck out the objection concerning the service of the notice of appeal and proceeded to hear and determine the appeal. The hearing and determination of the objection after the notice of appeal and other processes have been served by substituted means pursuant to the Order of this Court, was incompetent.
It is not contested that the notice of this appeal having been filed within time is valid.

An appeal to this Court is validly commenced and exists once it is brought by the filing of a notice of appeal in the registry of the Court of Appeal. Order 8 Rule 2(1) of the Supreme Court (Amendment) Rules 2014 provide that “all Appeals shall be by way of rehearing and shall be brought by Notice (hereinafter called the Notice of Appeal”) to be filed in the Registry of the Court below…”
Order 2 Rule 30 of the Supreme Court (Amendment) Rules 2014 provide that “An Appeal shall be deemed to have been brought when the Notice of appeal has been filed in the Registry of the Court below.”

Service of the notice of appeal is a separate and distinct process independent of its filing. The service of the Notice is a process preparatory to the valid hearing of the appeal. It enables the valid hearing of the appeal. It is the competence of further proceedings in the appeal that may be affected if the notice of appeal is not served or properly served and not the notice of the appeal and the subsistence of the appeal. So, it is wrong to argue that a notice of appeal or that an appeal has been rendered incompetent by a failure to serve or properly serve the notice of appeal. Non service or improper service of the notice of appeal has nothing to do with the competence of the notice of appeal.

Let me consider the argument that the notice of appeal does not have endorsed on it an address for service for the 2nd respondent. The 2nd respondent admits that an address for service for him was endorsed thereon as follows, Hon. Jarigbe Agom Jarigbe, c/o His Counsel, Ude Charles Esq, anointed Chambers & Co, Suite D82, Block D, Efab Mall Extension, Area 11, Garki, Abuja. It is obvious from the record of appeal that this is the address of his counsel during the proceedings in the Court of Appeal. His contention is that Order 8 Rule 2 (1) of the Supreme Court (Amendment) Rules 2014 require that it is his personal address that should be endorsed on the notice and not that of his counsel. This argument is defeated by Order 2 Rule 1 (1) and (2) and the Proviso to Rule 3 of the Supreme Court Rules (supra) which provides that-
1. (1) Any reference in these Rules to an address for service means an address within Nigeria where notices, pleadings, orders, summons, warrants and other documents, proceedings, and written communications, if not required to be served personally, may be left, or to which they may be sent.
2. Where under these Rules any person has given an address for service, any notice or other written communication which is not required to be served personally shall be sufficiently served upon him if it is left at that address or sent by registered post to that address, and in any case where the date of service by post is material, Section 26 of the Interpretation Act shall apply.
Provided that if the Court is satisfied that the notice of appeal has in fact been served in the manner prescribed by Sub-rule (2) of this rule, and communicated to the respondent, on objection to the hearing of the appeal shall lie on the ground only that the notice of appeal was not served personally.
So the phrase “address for service” used in Order 2 Rule 1(1) includes the address of his legal practitioner prosecuting his case, being an address where process in the proceedings in the Court of Appeal have been left for or sent to him through his said Legal Practitioner.
The generally established practice in appeals is that the address given by a party in the proceedings at the lower Court is endorsed on the Notice of appeal against the decision in that proceedings as his address for service and the notice of appeal and processes in the appeal may be served on the party at such address until the party files a notice of his new address for service in the appeal.
This is the practice except where the Rules of Court provide otherwise. Order 2 Rule 2 of the Supreme Court (Amendment) Rules 2014 provides that “where any person has given the address of a legal practitioner as his address for service and the legal practitioner is not or has ceased to be instructed by him or the purpose of the proceedings concerned, it shall be the duty of the legal practitioner to inform the Registrar as soon as may be that he is not or no longer authorized to accept service on behalf of such person, and if he omits to do so he may be ordered to pay any costs occasioned thereby.”
This appeal is a continuation of the proceedings in this case, which proceedings commenced in the trial High Court, through the Court of Appeal to this Court. The address of the party’s legal practitioner at the lower Court at which processes were served on the party endorsed as his address for service on the notice of an appeal against a decision of the lower Court in the proceedings and remains his address for service until the legal practitioner notifies the Registrar of this Court that he has ceased to be instructed by him for the purpose of the proceedings.
Let me now consider whether the service of the notice of appeal on the legal practitioner of the 2nd respondent at the Court of Appeal at the address endorsed on the notice of appeal is proper service of the notice of appeal on him.
It is obvious that the said service of the notice of appeal is in the manner prescribed in Sub-rule (2) of Rule of the Supreme Court (Amendment) Rules, 2014. It is also obvious that it is not personal service even though Order 2 Rule 3(1)(b) require that a notice of appeal be served personally. But where, as in this case it is not served personally in that it was served on the 2nd respondent through the office of his legal practitioner in the Court of Appeal, the Proviso to Rule 3 of the Supreme Court (Amendment) Rules 2014 enables such service to be condoned if the Court is satisfied that the notice of appeal so served has been communicated to the 2nd respondent and in such situation prohibits an objection to the hearing of the appeal on ground that the notice of appeal was not served personally.
The 2nd respondent is not denying that he infact received a copy of the notice of appeal served on him through the address of his legal practitioner in the Court of Appeal. His contention is that he should have been served personally. In addition to his own admission that he received the notice of appeal, the brief filed by him and the motion on notice he filed along with his brief challenging even the ground of appeal in the notice and the address for service endorsed therein for him further show that the notice of appeal was infact communicated to him. I am satisfied that the notice of appeal served on him through the address of his legal practitioner at the Court of Appeal, the address endorsed in the notice of appeal, was infact communicated to him.
Therefore, I hold the 2nd respondent having in fact received the notice of appeal, he cannot object, as he had done, to the hearing of the appeal on the ground only that the notice of appeal was not served personally. The objection on that ground is incompetent and was not worthy of a hearing. It is hereby struck out.

The other aspects of the objection relating to the grounds of the appeal would be considered along with the merit of the issues raised for determination in the appeal as to determine them preliminarily, would prejudge the merit of the substantive appeal.

Let me also consider whether the repeated service of the notice and other processes in this appeal on the 2nd respondent by substituted means, vide Newspaper Publication pursuant to the order of this Court is valid.

It is obvious that following the filing of the 2nd respondent’s objection to the hearing of this appeal on the ground of improper service of the notice of appeal on him, the appellant out of abundance of caution, applied by a motion ex parte to this Court for an order that the notice of appeal and other processes be served on him by substituted means. This Court granted the application and the notice of appeal and other processes were again served on him by substituted means.

Learned SAN for the 2nd respondent who withdrew his application to set aside the said ex parte order, tried to argue that the order was obtained through misrepresentation, without furnishing the particulars of the facts misrepresented and the nature of the misrepresentation. With due respects to the distinguished learned SAN, he failed to make himself clear in his argument against the ex parte order of substituted service. There is nothing wrong, unusual or strange about the appellant’s application ex parte for an order that the 2nd respondent be served by substituted means following the 2nd respondent’s challenge of the earlier service of the process on him. In the face of the 2nd respondent’s application contending that the service of the notice on him was improper and that the notice be struck out for that and other reasons, the appellant acted reasonably by swiftly taking steps to regularize what he erroneously thought was an improper or irregular service of the notice of on the 2nd respondent. A motion ex parte is the legitimate process to employ to seek for a Court’s order of substituted service. The pendency of the 2nd respondent’s application challenging the service of the notice on him does not disable the appellant from taking steps to correct the alleged error the adversary’s challenge had highlighted. Equally, the pendency of such motion cannot prevent this Court from granting an order that would ensure that the notice of appeal was served, so that the hearing of the appeal can proceed. That is what every Court must do. Even if the hearing was inter parties and the 2nd respondent’s challenge is brought to the attention of this Court, it would still have granted the order for substituted service because it is bound by law to hear and determine the application that seeks to regularize the process to enable the hearing of the merit of the case and not the one that seeks to strike down the process for some defect. This law is settled by an unending line of decisions of this Court. Examples include Mobil Producing Nig. Ltd & Anor. V Monokpo (2003) 18 NWLR (Pt. 852) 346, NALSA & Team Associates v NNPC (1991) 8 NWLR (Pt. 212) 652 and LongJohn v Blakk (1998) 6 NWLR (Pt. 55) 524 at 550.
This Court has the power to order the said substituted service by virtue of Order 3 Rule 3(2) of the Supreme Court (Amendment) Rules which provide that – “Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the Federal High Court and if it appears to the Court that for any reason personal service cannot be conveniently effected, the Court shall have the same power as that High Court to direct that service be effected in some other way.
The repeated service of the notice of appeal on the 2nd respondent by substituted means pursuant to the order of this Court is valid. So the 2nd respondent was validly served the notice of this appeal in accordance with the Rules of this Court twice before the appeal was heard.

The first valid service was effected through the address of the 2nd respondent’s legal practitioner at the lower Court. The 2nd valid service was by substituted means as ordered by this Court.

The objection of the 2nd respondent is mala fide and is therefore a gross abuse of the process of Court as its purpose is to avoid the hearing and determination of the merit of this appeal. This kind of illegitimate objection that is being used to prevent adjudication on the merits of a case would bring administration of justice to disrepute. Courts must not allow the use of frivolous or false objections to frustrate the due process of adjudication. Even legitimate objections founded on obvious non compliance with Rules of Court would not be allowed to be used to defeat the hearing of the merit of a case. See Osareren v FRN (2018) 10 NWLR (Pt. 1627) 221 at 226, FRN v Dairo (2015) 6 NWLR (Pt. 1454) 141 and Idisi v Ecodril Nig. Ltd. (2016) 12 NWLR (Pt. 1527) 355 at 362.

In the light of the foregoing, the objection is hereby overruled and dismissed.
Having dismissed the objection, I will now hear and determine the appeal.
I do not think that I have anything more to add to the consideration of the appeal in the lead minority judgment.
I also allow the appeal. I agree with the orders made in the lead minority judgment.

Appearances:

CHIEF WOLE OLANIPEKUN, SAN, WITH HIM, AHMED RAJI, SAN, MOHAMMED NDARANI MOHAMMED, SAN, AKINTOLA MAKINDE AND OLAJIDE SALAMI For Appellant(s)

S. I. OLOGUNORISA, SAN, WITH HIM, A. R, OGBOLE, J. I. MICHANA, E. D. EJEH and A. OYEDELE- for 1st Respondent
CHIEF I. A. ADEDIPE, SAN, WITH HIM, A. ABIMBOLA, ADEDIPE, ESQ., E. S, NJOKA and E. OGUNTUASE- for 2nd Respondent
AGADA ELACHI, WITH HIM, ONYINYE PRINCESS JAMES and RACHAEL ATA KANI- for 3rd Respondent For Respondent(s)

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