ROBINSON ANYOHA & ORS v. LAWRENCE CHUKWU (2007)

ROBINSON ANYOHA & ORS v. LAWRENCE CHUKWU

(2007)LCN/2356(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of May, 2007

CA/PH/203/2001

RATIO

WHAT AN ENTRY OF CONDITIONAL APPEARANCE ENTAILS

The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the court’s jurisdiction. PER RHODES- VIVOUR, J.C.A.

CIRCUMSTANCES UNDER WHICH A COURT WILL NOT BE COMPETENT

The well laid down position of the law is that the jurisdiction of the court can only be ousted in the following instances, or put in another way the court is said to be competent where the normal procedure has been followed. A court is not competent: 1. Where the court is not properly Constituted as regards the numbers and qualifications of its members and a member is disqualified for one reason or another. 2. Where the subject matter of the case is not within the jurisdiction of the court. 3. When the case does not come to the court through the due process of law and conditions precedent to the exercise of the said jurisdiction have not been fulfilled. See: Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR p. 487; (1962) 2 SCNLR 341; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159; (2001) 1 SC (Pt. 1) p. 56. PER RHODES- VIVOUR, J.C.A.

WHAT IS THE OBJECT OF SERVING COURT PROCESS

The object of service is to give notice to the defendant so that he is not taken by surprise. That he can prepare a defence, consequently, failure to give notice of proceedings to the adverse party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is because the court will have no jurisdiction to entertain it. See: Obimonure v. Erinosho & Anor. (1966) 1 ANLR p. 250; (1966) 2 SCNLR 228; Scott-Emuakpor v. Ukavbe (1975) 12 SC p.41. PER RHODES- VIVOUR, J.C.A.

ESSENCE OF ENTRY OF APPEARANCE

The entry of appearance is the best evidence of service and once a defendant enters unconditional appearance there is irrebutable presumption of regularity in service. See – A. Okesuji v. F.A. Lawal (1991) 1 NWLR (pt. 170) p. 661. That is to say the entry of appearance is the best evidence of service. PER RHODES- VIVOUR, J.C.A.

WHEN IS AN AFFIDAVIT OF SERVICE NECESSARY; WHAT IS AFFIDAVIT OF SERVICE ; INSTANCE WHERE AN AFFIDAVIT OF SERVICE WILL NOT BE CONCLUSIVE PROOF OF SERVICE

An affidavit of service is necessary when the defendant does not acknowledge service. Conversely, when the defendant has acknowledged service, the court can dispense with affidavit of service. An affidavit of service is an affidavit, usually sworn to by the Bailiff indicating how and where he served the defendant. It is to convince the court that the defendants, on whom the processes are to be served, were duly served. An affidavit of service becomes a rebuttable presumption of service if the defendant says that he was not served. In such a situation such as in this case, an affidavit or endorsement as to service of originating process is not conclusive proof of service. PER RHODES- VIVOUR, J.C.A.

ON WHOM RESTS THE BURDEN OF PROVING SERVICE OF COURT PROCESS AND WHO ARE THE VITAL WITNESSES TO CALL IN RESPECT OF PROVING AND DISPUTING SERVICE OF COURT PROCESS

The burden of proving service lies on the person (usually the plaintiff) asserting that there was service and this is done by inviting the parties to call oral evidence and the vital witnesses to call are: For the plaintiff, the deponent to the affidavit of service, and any other witness to state that service took place as deposed to in the affidavit of service. For the defendants, the defendant and his witnesses to state that there was no service on the defendant. PER RHODES- VIVOUR, J.C.A.

POSITION OF THE LAW WHEN AN AFFIDAVIT OF SERVICE IS DISPUTED

It is well settled that when the affidavit of service is disputed, oral evidence of the deponent is mandatory. The deponent becomes a vital witness. When the deponent is not called to give evidence, grave doubts arise as to if there was service at all. PER RHODES- VIVOUR, J.C.A.

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

Between

1. ROBINSON ANYOHA
2. VINCENT OKOLI
3. OJIHEKANDU OKOLI
4. SHEDRACK OKOLI UKEH
5. VINCENT CHUKWU
6. JACOB UDOYE
7. FREDERICK EGBOSIMBA
8. OKOLI ONWUNNA
9. CYPRAIN OKAFOR
10. GODSON MOJEKWU
11. BEN ANC ONYEJI Appellant(s)

AND

LAWRENCE CHUKWU Respondent(s)

RHODES- VIVOUR, J.C.A. (Delivering the Leading Judgment): On 15/11/2000, Ukachukwu, J., sitting in the Orlu High Court, in Imo State entered judgment in favour of the plaintiff/respondent in suit No. HOR/16/98.
The concluding part of the judgment reads:
“My view is that the said document exhibit ‘A’ has the effect of defaming the plaintiff and thereby lowering his image and estimation before right thinking members of the society …
I therefore hold that the plaintiff has proved the case against the defendants. I award N500,000 damages to the plaintiff against the defendants jointly and severally.
There will also be cost to plaintiff assessed at N3,000.00.
Dissatisfied with the judgment against them, the defendants/appellants quickly filed a notice of appeal on 27/11/2000, that is to say twelve days after judgment was delivered.
In accordance with Order 6 rules 2, 4(1) of the Court of Appeal Rules, the defendants, now the appellants filed their brief on 17/9/01. The respondent’s brief filed on 23/4/02 was deemed properly filed and served on 25/4/02.
At the hearing of the appeal on 27/12/07, learned counsel for the appellants, Mr. K.C. Nwufo adopted his brief and urged us to allow the appeal. Learned counsel for the respondent, Mr. S.N. Chukwuma adopted his brief and urged us to dismiss the appeal. The appellants formulated three issues for determination.
1. Whether there is a conclusive proof before the court that the defendants/appellants were served the writ of summons and statement of claim.
2. Whether the defendants/appellants were denied their right to fair hearing when the learned trial Judge failed to issue and ensure the service of hearing notice on them.
3. Whether the learned trial Judge was right in relying on unpleaded facts/evidence in arriving at his judgment against the appellants.
The respondents also formulated three issues for determination.
1. Whether ground one in the amended notice of appeal is competent being one challenging on interlocutory decision of the High Court on the issue of service of the writ of summons in suit No. HOR/16/98.
2. Whether it was necessary in the circumstances of this suit to order the service of hearing notices on the defendants/ appellants.
3. Whether the learned trial Judge relied on evidence of unpleaded facts in his judgment.
I have considered the issues above, and I am satisfied with the issues formulated by the appellants. I adopt them for determination of this appeal. I must observe that issue NO.1 therein is the most important, in that if it succeeds the whole proceedings and the judgment from the court below will be declared a nullity and it would be so obvious  that it would be unnecessary to consider any of the other issues.
Learned counsel for the appellants observed that there are conflicts in the affidavit of service and oral evidence of PW1 and 2 on the issue of service of originating processes on the appellants.
He submitted that in such a situation the learned trial Judge should  discountenance all the evidence on service that was before him.
Reference was made to: Ozara Ekuma & Anor. v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (pt. 65) p. 472.
In response, learned counsel for the respondent observed that the learned trial Judge delivered an interlocutory ruling on 6/12/99  on service of originating processes on the appellants, finding that the service was properly done.
He argued that the ruling being interlocutory, the appellants must comply with section 241( 1)(b) of the Constitution, and sections 25(2)(a) and 25(4) of the Court of Appeal Act, 1976.
He submitted that since the appellants did not obtain leave before filing ground 1 in their notice of appeal from which this issue is distilled and the appeal was not filed within time and extension of time was never asked for the ground and this issue are incompetent.
Reference was made to Total International Ltd. v. Prince A.O. Awogboro (1994) 4 NWLR (Pt. 337) 147; (1994) 4 SCNJ (Pt. 1) p. 138; Tunji Bowaje v. Moses Adediwura (1976) 6 SC p. 143; A. Akeredolu & Ors. v. L. Akinremi (No.2) (1986) 4 SC p.325.; (1986) 2 NWLR (Pt. 25) 710.
On 23/2/98, the 1st,4th,7th, 8th, 9th, 10th and 11th defendants/appellants  entered conditional appearance, while the 2nd, 3rd, 5th and 6th defendants/appellants did not enter conditional/unconditional appearance. The record of appeal shows that these set of defendants/appellants ignored the proceedings in the court below.
The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the court’s jurisdiction.
On 31/3/98, the appellants quite rightly filed a motion on notice for an order striking out or dismissing the suit for lack of jurisdiction in that they were not served with the writ of summons and statement of claim.
The learned trial Judge heard oral testimony from two witnesses called by the respondent to prove that the appellants were duly served originating process in the suit. At the end of respondent’s witnesses testimony on 15/11/99, the learned trial Judge adjourned to 6/12/99 to enable learned counsel for the appellants produce their witnesses in court.
On 6/12/99, there was no representation for the appellants. The learned trial Judge reviewed the evidence before him and said:-
” … My impression is that the defendants have nothing to urge in denial of service. I find that they were properly served as per affidavit of service earlier filed …”
The well laid down position of the law is that the jurisdiction of the court can only be ousted in the following instances, or put in another way the court is said to be competent where the normal
procedure has been followed.
A court is not competent:
1. Where the court is not properly Constituted as regards the numbers and qualifications of its members and a member is disqualified for one reason or another.
2. Where the subject matter of the case is not within the jurisdiction of the court.
3. When the case does not come to the court through the due process of law and conditions precedent to the exercise of the said jurisdiction have not been fulfilled.
See: Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR p. 487; (1962) 2 SCNLR 341; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159; (2001) 1 SC (Pt. 1) p. 56.
The issue under consideration is on whether the originating process in suit No. HOR/16/98 was served on the appellants. This issue falls within 3 above.
Order 12 rule 1 of the High Court of Imo State (Civil Procedure) Rules, 1988 and similar rules in all jurisdiction makes it mandatory that there must be personal service of the writ of summons on the defendant in all suits commenced by writ of summons. The object of service is to give notice to the defendant so that he is not taken by  surprise. That he can prepare a defence, consequently, failure to give notice of proceedings to the adverse party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is because the court will have no jurisdiction   to entertain it. See: Obimonure v. Erinosho & Anor. (1966) 1 ANLR p. 250; (1966) 2 SCNLR 228; Scott-Emuakpor v. Ukavbe (1975) 12 SC p.41.
Before I proceed to examine processes filed and evidence led to prove that the appellants were served with the writ of summons,  it is important I highlight the position of the law on some vital
documents/processes that would be examined in the course of finding out if there was indeed service of the originating process.
The entry of appearance is the best evidence of service and once a defendant enters unconditional appearance there is irrebutable presumption of regularity in service. See – A. Okesuji v. F.A. Lawal (1991) 1 NWLR (pt. 170) p. 661.
That is to say the entry of appearance is the best evidence of service.
An affidavit of service is necessary when the defendant does not acknowledge service. Conversely, when the defendant has acknowledged service, the court can dispense with affidavit of service.
An affidavit of service is an affidavit, usually sworn to by the Bailiff indicating how and where he served the defendant. It is to convince the court that the defendants, on whom the processes are  to be served, were duly served. An affidavit of service becomes a rebuttable presumption of service if the defendant says that he was not served. In such a situation such as in this case, an affidavit or endorsement as to service of originating process is not conclusive proof of service. The burden of proving service lies on the person (usually the plaintiff) asserting that there was service and this is done by inviting the parties to call oral evidence and the vital witnesses to call are:
For the plaintiff, the deponent to the affidavit of service, and any other witness to state that service took place as deposed to in the affidavit of service.
For the defendants, the defendant and his witnesses to state that there was no service on the defendant.
Now, to the evidence before the learned trial Judge.
Justus Egbuhuzor, Chief Bailiff of the High court Orlu, Imo State deposed to affidavit of service on 17/2/98, see page 34 of the record of appeal. He deposed as follows:
” … on 17/2/98 at 10 a.m. I served upon the defendants a writ of summons by delivering the same personally to the defendants at Ndiogbuonyeoma village Arondizuogu. Before the day I served the summons I  did not know the defendants personally; but after he was pointed out to me by the plaintiff. I asked him if he were defendants’ (sic) and he said that he was.”
Livinus Maduwuba senior bailiff of Chief Magistrates Court, Uzualla deposed to affidavit of service on 13/3/98 see page 35 of the record of appeal. He deposed as follows:
” … on 13/3/98 at 11 a.m. I served upon Robinson Anyoha and 10 others a writ of 11 copies statement of claim … by delivering the same personally to Robinson Anyoha and 10 others at Ndiogbuonyeoma village   Arondizuogu. Before the day I served the statement of claim. I did not know Robinson Anyoha and 10 others personally, but after there were (sic) pointed out to me by the plaintiff. I asked if they were Robinson Anyoha and 10 others and they said they were.”
An affidavit of service is a sworn written statement by the bailiff indicating who, where, how, and when he served the originating processes. Its purpose is to place the bailiff (or the person who served) evidence before the court in a convenient form. An affidavit of service must be sworn on behalf of each defendant served; and should be drawn up by counsel, it being a very important document.
My lords both affidavits fall far short of what is required in an affidavit of service.
In this case, there should be an affidavit of service for each of the eleven defendants stating the names of each defendant that was served.
The deponent must state how he knew each of the defendants.
Saying the defendants were pointed out to him by the plaintiff is not good enough. He must name the defendant/s that were pointed out to him by the plaintiff.
It is clear that both affidavits were not drawn up by counsel. Affidavits of service are very important documents that should at all times be drawn up by counsel.
Finally, in both affidavits, the deponent says that a true copy of the process served is attached. Nowhere is there such a document in the record of appeal.
Both affidavits of service are bad.
The respondent, called two witnesses to prove that the originating process was duly served on the appellants.
PW1 is the deponent to the 2nd affidavit of service, Linus O. Maduwuba.
Said on oath that:
” … On 3/3/98 I accompanied the plaintiff who acted as pointer to serve the defendants. I served them personally one after another at Ndiogbuonyeoma Arondizuogu. On the whole I served eleven copies of the statement of claim … ”
And in cross-examination he said:
” ..1 went to house of defendants one after another to serve them. The plaintiff was there as pointer.”
PW2 is a farmer named Julius Eke.
He said on oath that:
” … The defendants were served with the writ of summons. I was present when the defendants were  served one after another by the bailiff from Orlu.
I emphasized that I accompanied the bailiff to serve all the defendants.”
In the 2nd affidavit, the bailiff’s name is Livinus, while in his oral testimony his name is Linus. In the affidavit of service, PW1 said that he served the defendants with statement of claim on 13/3/98 while in oral testimony he says he served them on 3/3/98.
Justus Egbuhuzor, who deposed that he served on the defendants the writ of summons was not called to give evidence.
It is well settled that when the affidavit of service is disputed,  oral evidence of the deponent is mandatory. The deponent becomes a vital witness. When the deponent is not called to give evidence, grave doubts arise as to if there was service at all. This is further compounded by the testimony of PW2 who said he accompanied the bailiff to serve processes on the defendants, while the bailiff  says it was the plaintiff who acted as pointer.
My Lords in the light of all that I have been saying, especially the fact that the deponent to affidavit of service of the writ of summons, was not called to give oral evidence it is safe to conclude and I conclude that the appellants were not served with the writ of summons in suit No. HOR/16/98.
Service of the writ of summons on each of the appellants is a condition precedent to the exercise of jurisdiction by the court See National Bank (Nig.) Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284) 643; (1993) 4 SCNJ p. 1; Adeigbe & Anor. v. Salami Klisimo & Ors. (1965) NMLR p.284.
Where no writ of summons was served on the appellants as I have found, the learned trial Judge had no jurisdiction over them in suit No. HOR/16/98. Consequently, the court was not competent to try the said suit and deliver judgment. This is because there was no service of the writ of summons on the appellants. A fundamental omission which in effect is a serious breach of the condition precedent, service of writ of summons on the appellants. Ground 1 of the amended notice of appeal reads:
“The learned trial Judge erred in law when he proceeded to entertain suit No. HOR/16/98 without jurisdiction, when the defendants/appellants were not served with the writ of summons in the said suit.”
The complaint in this ground of appeal is that the writ of summons in suit No. HOR/16/98 was not served on the appellants.
Learned counsel for the respondent observed that since the   learned trial Judge had given an interlocutory ruling on the issue of service of originating process on the appellants, the option open to the appellants since the ruling was not in their favour is to obtain leave of court to appeal, and since they did not obtain leave to appeal ground 1 is incompetent. He further observed that since the time   appeal had since expired and the appellants did not seek extension of time to appeal the said ground is incompetent.
The point taken is interesting but misconceived.
The issue in ground 1 is jurisdiction. It questions the competence of the court to hear the suit.
Jurisdiction can be raised on appeal and even for the first time at the Supreme Court. See: Usman Dan Fodio University v. Kraus Thompson Organsation Ltd. (2001) 15 NWLR (Pt. 736) p. 305.
However, a party raising the issue of jurisdiction on appeal must make it a ground of appeal to enable him formulate an issue from the said ground. The reasoning is simple. The ground of appeal is good notice to the respondent of the case he will meet on appeal.
The cases cited by learned counsel for the appellant are good authorities for situations where a party seeks leave to appeal, and extension of time to appeal. The authorities are not helpful as they say nothing about a ground of appeal that questions the jurisdiction of the trial court to hear the case from which the appeal emanates.
My Lords, an appellant who wants to raise an issue of jurisdiction on appeal does not need leave. All he needs do is to make the issue of jurisdiction a ground of appeal and formulate an issue thereon.
Consequently, ground 1 in the amended notice of appeal is competent and the issue formulated from ground 1 is also competent.
In my view, the trial court lacked jurisdiction to entertain the suit since the writ of summons was not served on the appellants.
Accordingly, the proceedings, and the judgment delivered in suit No. HOR/16/98 on 15/11/2000 are null and void, and hereby set aside. In the end the appeal succeeds, and it is allowed.

THOMAS, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, Rhodes-Vivour, J.C.A., just delivered.
I entirely agree that the appeal is meritorious and I also allow the appeal.
Once the writ of summons is not properly served on the defendant, then the court has not been clothed with jurisdiction to hear the suit. In the instant appeal, the defendants were not duly served the writ, and therefore the purported libel award of N500,000 made by the trial Judge is a nullity. I also set aside the decision of the trial court delivered on 15/11/2000.
I make no order on costs.

SAULAWA, J.C.A.: I have had the privilege of reading before now, the lead judgment prepared by my learned brother, Rhodes-Vivour, J.C.A., I agree with his conclusion that the appeal has merit. For purposes of emphasis, I will take briefly the issue of service of court process.
The 1st of the three issues raised in the appellants’ brief of argument for determination is to the following effect:
“1. Whether there is a conclusive proof before the court that the defendants/appellants were served the writ of summons and statement of claim.”
The fulcrum of the contention of the appellants under this issue was that the learned trial Judge did not have any conclusive and reliable proof of service of the writ of summons and statement of
claim before him when he proceeded to assume jurisdiction in the instant case. I have accorded a very critical consideration upon the submissions of both learned counsel in the respective briefs of argument thereof and vis-a-vis the entire record of proceedings of the trial court.
It’s rather evident from the records, especially at page 54, lines 1 – 31, that when the case came up on 06/12/99 for the appellants’ learned counsel to open his case in “the trial for service,” the learned trial Judge went out of the way and delivered a ruling in the absence of the said counsel to the following effect –
All through the proceeding counsel for the defendant had not made any secret of his desire to frustrate the trial. He had kept away from court at will on any excuse.
And had always shown by chosing (sic) distant dates for hearing that he is no hurry. At a stage he made it clear to this court that his only witness is a convict.
My impression is that the defendants have nothing to urge in denial of service. I find that they were properly served per affidavit of service earlier filed. Adjourned to 19th January, 2000 for hearing.
Again, the learned Judge held inter alia in the judgment thereof at page 111 of the records thus –
“At the end of the investigation this court in its ruling on 6th December, 1999 held that the defendants were duly served both the writ of summons and statement of claim. Despite this ruling, the defendants neither appeared in court nor filed their statement of defence.”
It’s rather obvious from the records, with due respect to the learned trial Judge, that the trial or investigation in to the circumstances surrounding the issue of service of the writ of summons and statements of claim on the appellants was abruptly but rather unjustifiably aborted by the learned Judge. The learned Judge was no doubt in error when he delivered the controversial ruling on 06/12/99, the very date to which the case was specifically adjourned for the appellants’ counsel to open his case in “the trial for service.” He ought to have adjourned the case for further hearing in the trial.
The appellants’ learned counsel also ought to have been served to appear in court on that date to open the case thereof.
It’s also interesting to note that the motion of notice filed by the appellants’ counsel for extension of time to seek leave to appeal against the said interlocutory ruling (pages 58 – 81 of the record) was ignored by the learned Judge. When the appellants’ teamed counsel drew his attention to the pending motion, the learned Judge chose to refuse to entertain same on the ground that he believed – “the intention of the defendants by their counsel advised is that the case might never be heard.”
The learned Judge then proceeded to hear the respondent who testified as PW1.
It is a fundamental and far reaching principle of law that a party who is sued must be served personally; that is the originating court processes including the writ of summons and statement of claim, must be given to him personally. He is the person to receive it. See Order 12 rule 2 of the High Court (Civil Procedure) Rules, 1988 thus:
2. Save as otherwise prescribed by any of these Rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof. See Kenfrank (Nig.) Ltd. v. U.B.N. Plc (2002) 15 NWLR (Pt. 789) 46 at 60 paragraph C; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179.
Failure to effect service of an originating process as dictated by the rules of court (supra) is a defect which goes to the roots of the trial and thus renders the entire proceeding of the court a nullity.
This is so, because where there is a failure to serve originating processes on a party the court is deprived of jurisdiction to adjudicate upon the matter. See National Bank of Nigeria Ltd. v. Guthrie (Nig.) Ltd. & Anor. (1993) 3 NWLR (Pt. 284) 643; (1993) 4 SCNJ 1 at 17.
In the instant case, its evident that Mr. Justine Egbuhuzor who was alleged to have served the writ of summons on the appellants and whose affidavit of service is at the center of the controversy was not called to testify. His evidence was no doubt very fundamental to the resolution of the controversy surrounding the service of the originating process in question. Respondent’s failure to call him to testify was fatal to the entire proceedings of the trial court. The provisions of Order 12 rule 28 of the High Court (Civil Procedure) Rules (supra) are to the effect that an affidavit of service sworn to by a bailiff or such other officer of the court shall on production, without proof of signature, be prima facie evidence of service. The term ‘prima facie evidence’ means “evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.”
See Black’s Law Dictionary, 7th Edition, 1999 at 579.
In the instant case, since the affidavit of service allegedly sworn to by the said Mr. Justine Egbuhuzor has been challenged by the appellants, his oral evidence has become rather necessary to prove service. Failure to call the said bailiff is no doubt fatal to the respondents’ case. See Ozam Ekuma & Anor. v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (Pt. 65) 472 at 480.
What’s more, by virtue of the provisions of section 149(d) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, as amended, the respondents are presumed to have deliberately refused to call the said bailiff because the evidence thereof, if called, would have been unfavourable thereto.
Hence, in the light of the above postulations and the fuller reasoning and conclusion reached in the lead judgment, I am of the considered view that the instant appeal is meritorious. The appeal is therefore hereby allowed by me. Consequently, the judgment of the trial court delivered on 15/11/2000 in suit No. HOR/16/98 being a nullity, is hereby set aside.
I make no order as to costs.
Appeal allowed.