THE CHIEF OF NAVAL STAFF v. LT. CDR STEPHEN OCHEPO EDEH
(2015)LCN/7777(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of February, 2015
CA/L/253M/2012
RATIO
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE EFFECT OF THE VIOLATION OF THE RIGHT OF FAIR HEARING OF A PARTY IN AN ACTION
It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given an opportunity of being heard, otherwise, the action taken, following the enquiry, will be unconstitutional and illegal. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO EXAMINE ITS RECORD TO DETERMINE WHETHER THE PARTY THAT FAILED TO APPEAR IN COURT WAS SERVED WITH HEARING NOTICE
In Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) page 430, the Supreme Court clearly held that:
“Where a party fails to appear in Court, the Court owes it as a duty to examine its record to determine whether the party was served with hearing notice but deliberately absented himself includes his Counsel from Court and did not take opportunity of being heard.” per. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: SERVICE OF PROCESS; THE EFFECT OF THE FAILURE TO GIVE NOTICE OF PROCEEDINGS TO AN OPPOSING PARTY IN A CASE WHERE SERVICE OF PROCESS IS REQUIRED
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. See Tubonewu v. Dikibo (2006) 5 NWLR (Pt. 974) page 565; Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) page 90; Idiata v. Ejeko (2005) 11 NWLR (Pt. 936) page 349; Mark v. Eke (2004) 5 NWLR (Pt. 865) page 54; Otabaimere v. Akporeche (2004) 14 NWLR (Pt. 895) page 591; Ayogu v. Nnami (2004) 15 NWLR (Pt. 895) page 134; Onadeko v. UBN Plc (2005) 4 NWLR (Pt.916) page 440; Wema Bank (Nig.) Ltd. vs. Odulaja (2000) 3 SC page 83. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
THE CHIEF OF NAVAL STAFF Appellant(s)
AND
LT. CDR STEPHEN OCHEPO EDEH Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Lagos Division delivered on 11th of November, 2011 awarding the 1st respondent a total sum of N3m only as exemplary and aggravated damages as well as some injunctive orders against the appellant.
The 1st respondent, as plaintiff, applied for his Fundamental Rights and claimed the following reliefs:
“1. A declaration that the arrest and continued detention of the applicant at the NNS Beercroft, Apapa, Lagos by the respondent on the 4th of August, 2011 constitutes a breach of the applicant’s fundamental right to freedom of movement, liberty and dignity of human person prescribed in Section 41, 35 and 34 respectively of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5, 6 and 12 of the African Charter on Human and People’s Right Cap. A9, Laws of the Federation of Nigeria, 2004.
2. AN ORDER compelling the respondent to release the applicant from detention at the NNS Beercroft, Apapa, Lagos forthwith.
3. N100,000,000.00 (One Hundred Million Naira) being exemplary and aggravated damages against the respondents, jointly and severally for unlawful violation of the applicant’s fundamental right.
4. AN ORDER OF INJUNCTION restraining the respondents whether by themselves or by their officers, agents, servants, privies or others however described from further arresting or detaining the applicant and/or in any other manner infringing on the fundamental rights of the applicants on facts relating to this application.
5. AN ORDER OF INJUNCTION restraining the respondents whether by themselves or by their officers, agents, privies or others however described from infringing the applicant’s right to human dignity, liberty, personal liberty or in any other manner infringing on the fundamental rights of the applicant.”
The first day the application came up for hearing, the trial Judge was not satisfied that the originating processes had been served. The trial Judge ordered that the processes be served on all the respondents. On the next adjourned date, the trial Judge was seemingly satisfied that the originating processes had been served. The respondents were not in Court and judgment was entered for the plaintiff.
The respondents were unhappy with the judgment when they were served with the judgment. They immediately filed two motions. One was a motion to set aside which the trial Judge refused hearing. However, the trial Judge heard the motion for extension of time to appeal against judgment. This was granted, hence this appeal. The 1st respondent, as appellant, filed his Notice and 10 grounds of Appeal. The appellant also filed his appellant’s brief on 17th of January, 2013 and appellant’s reply brief on 7th of March, 2013.
The 1st respondent filed its brief on 26th of February, 2013. The other respondent filed no brief.
On the 3rd of November, 2014 when this appeal came up for hearing, the parties adopted their various briefs and urged the Court to allow or dismiss this appeal as per their respective briefs.
The appellant articulated eight (8) issues as follows:
“1. Whether the appellant’s right to fair hearing was not breached in the hearing and determination of the suit at the trial; (Grounds 1 and 3 of the Notice of Appeal).
2. Whether the suit initiated by the 1st respondent is not incompetent, the originating processes having been issued in total disregarded of Section 97 and 99 of the Sheriff and Civil Process Act; (Ground 2 of the Notice of Appeal).
3. Having regard to the different signatories on the originating processes purportedly signed by the same Anthony Omagbomi, whether the originating processes were competent; (Ground 4 of the Notice of Appeal).
4. In view of the Section 178 of the Armed Forces Act Cap. A20 LFN, 2004, whether the trial Court had the jurisdiction to entertain the suit of the instant appeal; (Ground 5 of the Notice of Appeal).
5. Whether the 1st respondent suit disclosed any reasonable cause of action and which is sustainable against the appellant in view of Section 34(2)(b)(c) and (e) of the Constitution of the Federal Republic of Nigeria, 1999; (Ground 6).
6. Whether the trial Court’s judgment which only reads “orders as prayed” is a good judgment which ought to be set aside in the instant appeal; (Ground 9 of the Notice of Appeal).
7. Whether the trial Court was not wrong to have delivered its judgment in favour of the 1st respondent based on the facts deposed to in the affidavit which were contradictory, potentially false and offends several provisions of the Evidence Act, 2011; (Ground 7 of the Notice of Appeal).
8. Whether the trial Court was right to have awarded the sum of N3,000,000.00 (Three Million Naira) as exemplary and aggravated damages against the appellant in the circumstances of the suit of the instant appeal; (Grounds 8 and 10 of the Notice of Appeal).”
The 1st respondent articulated his own five (5) issues for determination. They are as follows:
1. WHETHER IN LAW AND IN FACT THE APPELLANT WAS DENIED FAIR HEARING BY THE LOWER COURT (This issue is distilled from grounds 1 and 3 of the Appellant’s notice of appeal).
2. WHETHER THE ORIGINATING MOTION FILED BY THE 1ST RESPONDENT DATED 30TH SEPTEMBER, 2011 IS INCOMPETENT AND THEREBY DIVESTED THE LOWER COURT OF ANY JURISDICTION (This issue is distilled from grounds 2 & 4 of the Appellant’s notice of appeal).
3. WHETHER THE PROVISIONS OF SECTION 178 OF THE ARMED FORCES ACT, CAP. A20, LFN, 2004 IS APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE (This issue is distilled from ground 5 of the Appellant’s notice of appeal).
4. WHETHER THE FACTS, GROUNDS AND CIRCUMSTANCES OF THE CASE WERE SUFFICIENT AND CREDIBLE TO SUSTAIN THE RELIEFS SOUGHT BY THE 1ST RESPONDENT AT THE LOWER COURT. (This issue is distilled from grounds 6, 7, 8 & 10 of the Appellant’s notice of Appeal).
5. WHETHER THE LOWER COURT WAS WRONG IN LAW TO HAVE ENTERED JUDGMENT BY MAKNG A PRONOUNCEMENT IN THE FOLLOWING MANNER- “ORDERS AS PRAYED” (This issue is distilled from ground 9 of the Appellant’s notice of appeal).
The two sets of issues can be streamlined as follows:
The appellant’s issue 1 is the same as respondent’s issue 1.
Appellant’s issues 2 & 3 are the same as respondent’s issue 2.
Appellant’s issue 4 is the same as respondent’s issue 3.
Appellant’s issues 5 & 7 are the same as respondent’s issue 4.
Appellant’s issues 6 & 8 are the same as respondent’s issue 5.
I will rather use the respondent’s issues to determine this appeal.
Issues 1 and 2 are issues concerning the jurisdiction of the Court to entertain the suit before the lower Court.
The learned Counsel to the appellant submitted that when an action has been instituted against a person in the law Court he reserves the right to be put on notice by way of service of processes. Without service, he has no way of knowing that he has been sued and for what. See ACB Plc v. LOSADA (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) page 48. Counsel referred the Court to Section 36(1) of the 1999 Constitution which provides:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
This provision envisages that both parties would be accorded reasonable opportunity to present their case from the beginning of the case to the end of proceedings without any let or hindrance. See Dide v. Seleitetimbi (2008) 15 NWLR (Pt. 1110) page 221.
Counsel argued that the appellant was denied fair hearing in the hearing and determination of the suit against him on two main grounds:
“(i) Non service (or lack of proper service) of the originating processes on him; and
(ii) Non service at all of the hearing notice fixing the matter for hearing on 11th November, 2011 and/or any other date whatsoever.”
Counsel submits that service of originating process is without doubt fundamental to the Court as it is what foists jurisdiction on it. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC page 6. Counsel urged the Court to take note of the two affidavits of service deposed to by the bailiff – Mr. Ubido Agbais on the 14th of October, 2011 on pages 72-79 of record of appeal.
An affidavit of service by a Court bailiff is a prima facie evidence of proof of service even though not a conclusive proof of service. See UBA v. Effiong (2011) 6 NWLR (Pt. 1272) page 84.
An affidavit of service must, on the face of it, contain the name, position, and signature of a person served as well as the time, date and address where such service was effected. The processes served must also be stated. The facts deposed to in an affidavit of service must be logical and reasonable and in line with common sense. In the case of Okoye & Anor. v. C.P.M.B. Ltd. (2002) 15 NWLR (Pt. 1110) 335 at 362 paragraphs “C” – “D”, the Supreme Court per Niki-Tobi, JSC held as follows:
“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the Courts. Like oral evidence, a Court of law is entitled to ensure its veracity and or authenticity while uncontradicted affidavit evidence should be used by the Court, there are instances when such affidavit evidence clearly tell a lie and the Courts cannot be blind to such a lie. One example will suffice. If a party deposes an affidavit that 1st of April every year is Nigeria’s Independence Anniversary, the Court of law will certainly not accept such a deposition as true, as the correct date is 1st of October. I hope I have made myself clear.”
Counsel argued that there is no way the bailiff would have served the two processes in Lagos and Abuja within 35 minutes of each other. This counsel submitted that the affidavit is false and contradictory. The Supreme Court held in Mark v. Eke (1997) 1 NWLR (Pt. 529) page 523 that:
“Where a Court finds that the affidavit of service of a bailiff to be false which falsity is to be treated as an abuse of Court process. Any service based on the false service shall automatically be null and void.”
Counsel urges the Court to discountenance the two affidavits of service and the purported service thereof as same is false and an abuse of Court process. Counsel reiterated that failure to serve Court process is not merely an irregularity but a fundamental defect which goes to the jurisdiction of the Court and renders proceedings a nullity. See Skenconsult (Nig.) Ltd. v. Ukey (supra); Mark v. Eke (supra) where the Supreme Court held as follows:
“Where a party to a proceeding complains of non-service of the process, he is raising a fundamental issue which goes to the jurisdiction and the competence of the Court to enter judgment. In such a case where the defendant proves non-service on him, the whole proceedings become a nullity and the trial Court has the jurisdiction to set it aside.”
Counsel submitted further that the originating processes was not validly served on it. He went further to state that there was no hearing notice served on the appellant intimating him on the date for the hearing. He proceeded to state that non-service of hearing notice touches on the competence and jurisdiction of the Court to proceed with the matter. See UBA v. Effiong (2011) 16 NWLR (Pt. 1277) page 84.
Counsel further argued that the appellant was not aware and not served with the hearing notice that the suit was coming up on the 11th of November, 2011 when the matter was heard and determined. This, Counsel argued, was a breach of his right of fair hearing. The resultant effect of this breach is that the proceedings are null and void. See UBA v. Effiong (supra); Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) page 90; Dide v. Seleiletimbi (supra); F.B.B. Plc v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) page 247 where the Supreme Court held that:
“…where a decision has been reached by a Court and which decision, for same reason is without jurisdiction and a nullity due to absence of fair hearing or it has been reached as a result of fraud, or where it is a default judgment, the same Court that made the order can set that same order aside.”
Counsel finally urged the Court to resolve this issue in his favour by holding that his right of fair hearing has been breached in the hearing and determination of this suit in the trial Court.
In response, the respondent’s Counsel submitted that the presumption of good service or prima facie evidence of proof of service by a Court bailiff is not rebutted or displaced because the bailiff who swore to the affidavit is not the same bailiff that served. The purpose of affidavit of service is to convince the Court that the person on whom the process was to be served was duly served. See Okesaji v. Lawal (1991) 1 NWLR page 661.
Counsel referred the Court to paragraph 7(i)-(viii) of the counter-affidavit of 1st respondent/plaintiff at page 101 of record of appeal:
“7. In further denial of the averments in paragraphs 3 and 4 of the affidavit in support, the bailiff of this Honourable Court, Mr. Ubido Agbais informed me at the bailiffs office at the Federal High Court premises, Ikoyi at about 4:00pm on Friday, the 2nd of March, 2012, while discussing the circumstances under which the judgments/debtors were served in the presence of my lawyer Anthony Omaghomi and I verily believe as follows:
(i) That on the said 14th of October, 2011 he personally served on the 1st judgment debtor/respondent all processes which the officer on ground collected but refused to write his name or endorse collection.
(ii) That due to the urgency in the matter, he had to give the other processes meant for the 2nd judgment/debtor to another colleague of his by name Ernest C.N. (A bailiff of this Court) to serve on the 2nd judgment debtor about the same time he traveled to Abuja.
(iii) That with the endorsement and return prepared by Ernest C.N., he Ubido Agbais prepared the proof for the 2nd judgment debtor/respondent.
(iv) Mr. Ubido Agbais further informed me at the aforesaid time and place and I verily believe him that it is not unusual for one bailiff to serve and another to prepare the proof.
(v) That what is always of importance is the endorsement and return which is used to prepare the proof.
(vi) That this method enhances efficiency and speed. In addition they always employ this method when there some urgency in the matter.
(vii) That the process was received in Lagos by one petty officer who identified himself as Sleem II. The said officer duly signed and dated the endorsement page but refused to write his full name.
(viii) The office of the judgment debtor/applicant is also at the Western Naval Command Naval Base, Apapa, Lagos and the judgment debtor/applicant have always received processes through the Flag Officer Commanding Western Naval Command, Naval Base, Apapa, Lagos.”
These facts, the appellant did not rebut in an affidavit. The burden of proving lack of service or breach of fair hearing rests squarely on the shoulders of the appellant who must discharge this burden by placing sufficient evidence before the Court to displace the prima facie evidence of service. See Mbanefo v. Molokwu (2009) 11 NWLR (Pt. 1153) page 431.
Counsel argued that the only quarrel of the appellant is the fact that both processes were served in Abuja and Lagos within a period of 35 minutes by the bailiff. In fact, like Counsel posited, the appellant is not denying service but argues that there is no person named Sleem II. Also that the service was not effected in its Abuja office which makes it ineffectual. Counsel argued that the appellant was served by a bailiff of the Federal High Court. It is immaterial that the proof of service was sworn to by another bailiff of the Federal High Court. See Penache Communications Ltd. v. Aikhomu (1994) 2 NWLR (Pt. 327) page 420 where the Court held that:
“In all cases where service of any writs or document has been effected by a bailiff or other officer of the Court, an affidavit of service sworn by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service.”
Counsel also stated that there are three very important points which are deducible from this provision thus:
“(i) Service shall be by a Court bailiff or other officer of the Court;
(ii) An affidavit of service is to be sworn by the bailiff;
(iii) Once conditions (i) and (ii) above are satisfied, the sworn affidavit evidence is prima facie proof of evidence.”
The law on fair hearing is well settled. Where a party has been given an opportunity, such party cannot allege denial of fair hearing. In Ukwuyok v. Ogbulu (2010) 5 NWLR (Pt. 1187) page 316, the Court held as follows:
“The rule where a party to a suit has been evidently accorded every reasonable opportunity of being heard, and for no just cause whatsoever refuses or neglect to attend the sitting of the Court, he is deemed to have voluntarily abandoned his case or defence, and cannot thus complain of breach or denial of fair hearing.”
Counsel reiterated that hearing of fundamental rights application is sui generis and referred the Court to Order 111 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which provides:
“The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of applications under these rules.”
Counsel urged the Court to resolve this issue in favour of the respondent.
This issue is a challenge to the jurisdiction of the Court to hear this matter as it is presently constituted. Where the jurisdiction of the Court is challenged, the Court is entitled under Section 6 of the 1999 Constitution to assume jurisdiction to consider the applicant’s claim before it in order to ascertain whether it has jurisdiction or not. See Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) page 608; Egbobu v. IGP (2006) 5 NWLR (Pt. 972) page 146; A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) page 552; Nokoprise Int. Co. Ltd. v. Dobest Trading Corporation (1997) 9 NWLR (Pt. 520) page 334.
“It is now settled that a Court is competent when the Court is properly constituted as regards numbers of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court.”
In the present appeal, the appellant is challenging that the originating process was not properly served on him. The appellant in his argument did not categorically deny that the originating processes were not served on him. The appellant complained that the processes were signed for by an unknown person, Sleem II. Also that both processes served on the two respondents in the lower Court were supposedly effected within 35 minutes of each other in Lagos and Abuja.
To this allegation, I say that a defendant to a suit ought to be served with the Court processes in the suit even if he is privy, agent or servant of another defendant in the suit. See Otobaimere v. Akporehe (2004) 14 NWLR (Pt. 894) page 591.
The essence of service is to ensure that a party is put on notice of the pending litigation and this can be achieved through a liaison office. RVS Govt. v. Specialist Kunsult (2005) 7 NWLR (Pt. 923) page 145. The appellant had argued that it was impossible for the bailiff to have served both respondents in Lagos and Abuja within 35 minutes of each other. The bailiff who served does not necessarily have to be the one who swears to an affidavit of service. See Penache Communications Ltd. v. Aikhomu (supra).
If there is an affidavit of service of Court process and it is being denied; the person denying being served has to swear to a counter-affidavit. See Ethiopian Airlines v. Onu (2005) 11 NWLR (Pt. 936) page 214. The appellant has not been able to prove that the originating processes were not served on him. An affidavit of service was exhibited in Court showing the name and signature of the person that received the process. The only argument still remaining is that the Sleem II is unknown to him. This is not the business of the bailiff who is serving, to find out or choose whom the appellant would like to receive his process. This argument does not, therefore, hold water. The appellant has therefore, not proved to the satisfaction of the Court that he was not properly served.
The appellant also complained that he was not served with the hearing notice for the hearing. I will like to recap what happened in Court on 2nd November, 2011:
“On Wednesday the 2nd day of November, 2011
Parties absent.
Miss A.C. Duru of the appellant.
Court: The motion for enforcement has not been served for the records of the Court.
Duru: We apply for a short date.
Court: 11th November, 2011 for the applicant’s motion.
Sign: C.E. Archibong, Judge, 2/11/2011.
On Friday, the 11th day of November, 2011:
Parties absent.
A.C. Duru (Miss) for the appellant.
Duru: We have an application for enforcement of the applicant’s fundamental rights. The applicant has been in custody since the 4th of August. The respondents have been served.
Court: The records say they were served on the 14th of October, 2011.
Duru: I move in terms of our application.
Court: Orders as prayed. N3,000,000.00 (Three Million Naira) in exemplary and aggravated damages.
Sign: C.E. Archibong, Judge, 11/11/2011.”
On the 2nd of November, 2011 the motion had not been served. The Court then adjourned for the motion to be served. There is no mention in the proceedings where hearing notice was ordered to be served. The bailiff, whilst swearing to an affidavit of service, never mentioned that hearing notice was also served on the appellant.
It is the usual practice that whenever anything is in doubt, the parties will revert first to what the Court has in its records. Unlike in the case of the originating process in this appeal, the processes were served. The question was about the person who received the process and the time of service of the processes on the two respondents in the lower Court.
In the question of hearing notice, no mention of it was in the record nor was it mentioned in the affidavit. Service of process is vital under due process of law. See Guda v. Kitta (1999) 12 NWLR (Pt. 629) page 21. Any judgment based on Court process, which is not served, is liable to be set aside. See Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) page 598.
A hearing notice ought to be served on the appellant and the fatal effect of non-service of the process on the proceedings cannot be over-emphasized. It is an infringement of the Appellant’s right to an opportunity to be heard in his defence. Guda v. Kitta (1999) 12 NWLR (Pt. 629) pg. 21; Hyppolite v. Egharevba (supra).
Non-service of hearing notice on the appellant for the hearing on 11th of November, 2011 is a fatal flaw to the entire proceedings of that day. It robbed the Court of the necessary vires to hear and determine the matter like it did. See Skenconsult Nig. Ltd. v. Ukey (supra). Service of a hearing notice on the appellant in the circumstance of this case is a pre-condition to the exercise of jurisdiction by the Court below and the said Court neither verified that the hearing notice was served on the respondent before proceeding to judgment. Service of originating processes could not have had the date of the next adjourned date. When the Court ordered that the originating processes be served on the appellant, it did not include service of hearing notice.
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. See Tubonewu v. Dikibo (2006) 5 NWLR (Pt. 974) page 565; Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) page 90; Idiata v. Ejeko (2005) 11 NWLR (Pt. 936) page 349; Mark v. Eke (2004) 5 NWLR (Pt. 865) page 54; Otabaimere v. Akporeche (2004) 14 NWLR (Pt. 895) page 591; Ayogu v. Nnami (2004) 15 NWLR (Pt. 895) page 134; Onadeko v. UBN Plc (2005) 4 NWLR (Pt.916) page 440; Wema Bank (Nig.) Ltd. vs. Odulaja (2000) 3 SC page 83.
There was, therefore, no proof that the appellant was served with hearing notice when they served the originating process. Hearing notice in this case is a pre-condition to the exercise of jurisdiction by the Court below and the Court, therefore, laboured in vain in the absence of proof of hearing notice or any other proof that the appellant had knowledge that the case was slated for hearing on 11th of November, 2011. There was no record that the Court verified that the appellant was served with hearing notice to intimate him that the motion was slated for hearing on that day. See Obu v. Archibong (2011) LPELR 8897.
In Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) page 430, the Supreme Court clearly held that:
“Where a party fails to appear in Court, the Court owes it as a duty to examine its record to determine whether the party was served with hearing notice but deliberately absented himself includes his Counsel from Court and did not take opportunity of being heard.”
The appellant was not heard before the case against him was heard and determined. The appellant was not by any stretch of imagination given a hearing, let alone fair hearing by the Court below. It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given an opportunity of being heard, otherwise, the action taken, following the enquiry, will be unconstitutional and illegal.
As it is, the lower Court denied the appellant the right to be heard. The Court did that at the detriment of the validity of the proceedings. See Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) page 584; Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) page 659; Ogundoyin v. Adeyemi (supra). The lower Court, in this case, did not give the appellant a chance to be heard thereby breaching one of the twin pillars of natural justice – Audi alteram partem. That being the case and in view of the foregoing, the judgment of the learned trial Judge is, therefore, null and void. This appeal is meritorious and, therefore, allowed. The judgment of the lower Court is hereby set aside.
As the judgment of the lower Court is null and void, I shall not consider all the other issues articulated for determination.
I make no orders as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the lead judgment just delivered by my learned Brother U.I. NDUKWE-ANYANWU, JCA.
The proceedings of the Lower Court that culminated in the judgment, which is the subject of this appeal aroused some elements of curiosity that needs to be satisfied and I am tempted to reproduce the said proceeding below:-
“On Wednesday the 2nd day of November, 2001
Parties absent.
Miss A.C. Duru of the appellant.
Court: the motion for enforcement has not been served for the records of the Court.
Duru: we apply for a short date.
Court: 11th November, 2011 for the applicant’s motion
Sign: C.E. Archibong, Judge, 2/11/2011:
Parties absent.
A.C. Duru (Miss) for the appellant.
Duru: We have an application for enforcement of the applicant’s fundamental rights. The applicant has been in custody since the 4th of August. The respondents have been served.
Court: The records say they were served on the 14th of October, 2011.
Duru: I moved in terms of our application.
Court: Orders as prayed. N3,000,000.00 (Three Million Naira) in exemplary and aggravated damages.
Signed: C.E. Archibong, Judge, 11/11/2011.”
The crises points seem to be the proceedings of 11-11-11. While the motion for enforcement of Fundamental Human Rights which came up on 2-11-11 was adjourned to 11-11-11 due to non-service. On the said 11-11-11 at the resumed hearing, the Applicants counsel informed the Court that the Respondents had been served but amazingly the Court recorded thus:-
COURT = the Records say they were served on the 14th of October, 2011.
The big question is how could an originating process not heard on 2-11-11 due to non-service now be recorded to have been served on 14-10-11. The service of 14-10-11 no doubt precedes the proceedings of 2-11-11 and this to mind is an anomaly and the only rational conclusion that can be drawn here is that there was no proof of service of the process after the proceedings of 2-11-11 which led to the subsequent adjournment to 11-11-11. The service of 14-10-11 as noted by the Lower Court would only have been for the proceedings of 2-11-11 and having further adjourned the matter to 11-11-11, there is every necessity of at least a fresh hearing notice and failure to do so renders the whole proceedings of 11-11-11 a nullity. This is because such failure deprives the trial Court of the necessity, competence and jurisdiction to hear the Suit given that the condition precedent to the exercise of jurisdiction was not fulfilled. See MBADINUJU v. EZUKA (1994) 8 NWLR (Pt. 364) 535; KIDA v. OGUNMOLA (2006) 13 NWLR (Pt. 997) 337; NATIONAL BANK OF NIGERIA LTD v. GUTHRIE (NIG) LTD (1993) 4 SCNJ and ESSIEN v. EDET (2004) 5 NWLR (Pt. 867) 519.
It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, through proper service of relevant processes on him; otherwise any action taken following the inquiry will be unconstitutional and illegal.
For this and the fuller reason contained in the lead judgment, I too allow the appeal on this ground.
The judgment of the lower Court, for whatever it is worth, is hereby set aside for being a nullity.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA. I agree with the reasoning and conclusion expressed in the lead judgment but wish to add few words of mine.
Hearing notice being the only legal means and procedure to get a party to appear in Court, must be properly served on the party that requires it. Improper or invalid service or no service at all renders such proceedings a nullity.
The service of a process on a party is one of the fundamental conditions necessary for the exercise of the jurisdiction by a Court. Therefore, if a service of a process is necessary and there is no proof that such service was effected on appropriate party, any judgment emanating from such proceeding is a nullity.
Where service of any notice of a proceeding is required to be given, failure to notify any party to the case is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for making the order has not been fulfilled. The failure to serve process is not merely an irregularity in the procedure but a fundamental defect as well as a fatal flaw which renders the proceedings a nullity. See OBU v. ARCHIBONG (2009) LPELR-8897 (CA); SIGBENU v. IMAFIDON (2008) LPELR-4510 (CA); ODUTOLA v. KAYODE (1994) 2 NWLR (Pt. 324) 710-711.
I must state that a trial Court must satisfy itself of proof of service of hearing notice. Until the trial judge does that, he cannot proceed to hear the matter before it. Where he fails to do so and proceeds to hear the matter when there is no proof of service of the hearing notice, the proceeding thereof is a nullity. If he is not satisfied of the service, he should adjourn the hearing for the notice to be effected of the party. The law seems settled on this position; there is no discretion in this regard. See OLORUNYOLEMI & ANOR v. AKHAEGBE [2010] 8 NWLR (Pt. 1195) 48 S.C.
In the instant case, it is apparent that the Appellant was not served the hearing notice for the proceeding of 11th November, 2011. Thus, the Appellant was not heard before the case against him was heard and determined by the trial Court; this is a fatal flaw rendering the proceeding of 11th November, 2011 null and void.
For this and other reasons expressed in the lead judgment, I too allow the appeal and abide the consequential orders made in the lead judgment.
Appearances
Mallam J. A. AdamuFor Appellant
AND
A. T. OmaghomiFor Respondent
