URUE OFFONG/ORUKO LOCAL GOVT v. OSUNG
(2021)LCN/15812(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, February 16, 2021
CA/C/162/2016
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
URUE OFFONG/ORUKO LOCAL GOVERNMENT APPELANT(S)
And
RT (HON.) OKON TOM OSUNG RESPONDENT(S)
RATIO
WHETHER OR NOT THE SERVICE OF ORIGINATING PROCESSES ON A DEFENDANT IS A CONDITION PRECEDENT FOR THE EXERCISE OF DISCRETION OF A COURT
In KAYODE VS. ODUTOLA (1994) 2 NWLR (Pt. 334) 21, the Court stated thus:
To effect personal service of a Court’s process on a party, the bailiff or any other officer of the Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave process with a person who works in the same office with the Defendant as it was done in this case even if the latter undertakes to convey it to the Defendant.
And in REV. PROF. PAUL EMEKA VS. REV. DR. CHIDI OKOROAFOR (2017) 1 NWLR (Pt. 1577) 410 @ 431, the Supreme Court stated thus:
Service of an originating process is not an issue of mere technicality. It goes to the root of adjudication. Improper service of an originating process on the Defendant denies the Court of its competence to adjudicate on the matter, since the suit would not have been initiated in accordance with the due process of law. Service of process, particularly the originating process, is a pre-condition to the exercise of the jurisdiction of Court. Where there is no service at all or there is some procedural fault in the service, subsequent proceedings in the matter are 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 prepare his defence thereto. Indeed, the service of an originating process on a party to an action is a condition precedent to the exercise of a Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit has been instituted against him, what the claims are and an opportunity to defend himself, if he has a defence thereto.
By the same token, failure to serve a named party with Court process offends Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And, any breech of this principle of fair hearing renders the proceedings thereafter conducted a nullity.
In other words, lack of fair hearing, service of originating Court process, impinges on the jurisdiction of a Court to hear a matter and always considered fundamental as it goes to the root of adjudication and not a matter of mere irregularity.
See N.I.I.T, ZARIA VS. DANGE (2008) 9 NWLR (Pt. 1091) 127; S.G.B.N LTD. VS. ADEWUNMI (2003) 10 NWLR (Pt. 829) @ 539-540; MARK VS. EKE (2004) 5 NWLR (Pt. 865) 54; NACB VS. ADEAGBO (2004) 14 NWLR (Pt. 894) 551; MTN LTD. VS. BOLINGO HOTELS LTD. (2002) 3 NWLR (Pt. 889) 117; KIDA VS. OGUNMOLA (2006) 13 NWLR (Pt. 997) 377; GUINESS (NIG.) PLC. VS. UFOT (2008) 2 NWLR (Pt. 1070) 51; OKOYE VS. C.P.M.B. LTD. (2008) 15 NWLR (Pt. 1110) 335. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Gabriel F. Ette of the High Court of Akwa Ibom State sitting at Okobo Judicial Division delivered on 17th December, 2015.
The Respondent as Claimant commenced the action in the Court below by motion Ex-parte dated and filed on 27th November, 2015, under the undefended list procedure.
The Respondent/Claimant alleged that the Appellant/Defendant was owing him and his late wife some monies which was liquidated sum, totaling N32,610,000.00 (Thirty-Two Million, Six Hundred and Ten Thousand Naira).
The order of 1st December, 2015, placing the suit on the undefended cause list ordered inter alia that the:
“Order together with the processes of Court used to obtain this leave shall be served on the Defendant.”
Meanwhile, the endorsement of the Respondent’s claim and address for service as contained on page 3 of the record of appeal reads thus:
ENDORESMENT:
The Claimant claims against the Defendant the total sum of N32,610,000.00 (Thirty-Two Million, Six Hundred and Ten Thousand Naira) only comprising monies owed to him as claims, security vote, furniture allowance and the office of First Lady of the Defendant during the Claimants tenure in office as Executive Chairman of the Defendant from July, 2012 to July, 2015.
Dated this 30th day of November, 2015.
Signed:
Peter Ime Akpan Esq.,
Ime Akpan & Company,
Legal Practitioners,
No. 9 Atabong Road,
Eket, Akwa Ibom State
Address for Service:
Claimant: C/O His Counsel Above.
Defendant: Local Government Secretariat, Urue Offong.
On 14th December, 2015, one E. D. Okoh Esq., filed on behalf of the Appellant/Defendant a Notice of Intention to defend with affidavit in support wherein the Appellant/Defendant was said to have admitted the Respondent’s/Claimant’s claim.
The proceedings of 17th December, 2015 which led to the judgment appealed against are contained on pages 11 – 12 of the record of appeal.
SUIT NO: HOK/UND.13/2015
BETWEEN:
RT. (HON.) OKON TOM OSUNG – CLAIMANT
AND
URUE OFFONG/ORUKO LOCAL GOVERNMENT- DEFENDANT
Case called.
Parties are absent.
APPEARANCE: O. M. ABIA ESQ., appears for the Claimant. E. D. UKOH: Appears for the Defendant.
E. D. UKOH ESQ; On the 14th December, 2015 we filed a document that ought to be our notice of intention to defend.
We are not disputing this claim.
JUDGMENT: In view of the fact that the Defendant has admitted the claims of the Claimant in this suit, judgment is accordingly entered in favour of the Claimant as follows:
1. The Defendant shall pay the sum of N32,610,000.00 (Thirty-Two Million, Six Hundred and Ten Thousand Naira) only to the Claimant being the liquidated sum of money due from the Defendant to the Claimant.
2. I make no Order as to cost.
Signed:
Hon. Justice G. F. Ene
Judge – 17-12-2015
Dissatisfied with the judgment, the Appellant at first filed a notice of appeal on 25th January, 2016 but later filed an Amended Notice and Grounds of Appeal on 1st June, 2020.
The Appellant’s three (3) grounds of Appeal devoid of their particulars are:
GROUND 1
The learned trial Judge erred in law when he assumed and/or invoked jurisdiction to hear and determine the suit when the originating processes in the said suit were not served on the Defendant/Appellant for her to be heard or to enable the Appellant appear and defend the suit.
GROUND 2
The learned trial Judge erred in law when he assumed jurisdiction and heard the matter to conclusion not withstanding that the Plaintiff/Respondent failed to comply with the Akwa Ibom State High Court (Civil Procedure) Rules 2009 on the service of originating processes.
GROUND 3
The learned trial Judge erred in law when, he without proper examination and/or evaluation of the purported affidavit attached to the purported Notice of Intention to defend the suit and without proper examination of the process filed by the Claimant/Respondent proceeded to give judgment in favour of the Claimant.
The relevant briefs of Argument for this appeal are:
1. Amended Appellant’s brief of argument on 1st June, 2020. It is settled by Ita N. Okpoyo, Esq.
2. Amended Respondent’s brief of Argument [incorporating preliminary objection] which was filed on 8th September, 2020 but deemed filed on 9th September, 2020. It is settled by Emmanuel Sani.
3. Appellant’s Reply brief filed on 7th October, 2020 was deemed filed on 8th October, 2020.
PRELIMINARY OBJECTION
Learned counsel for the Respondent argued by way of preliminary objection that the entire gamut of the three (3) grounds contained in the notice of appeal centers around the denial of the counsel who represented the Appellant at the lower Court. Ground one (1) question the propriety of service on the said counsel, ground two (2) unequivocally denied the counsel, and questions the authority of the counsel to act on behalf of the Appellant, ground three (3) questions the authority to depose to affidavit on behalf of the Appellant.
Learned counsel for the Respondent submitted that by the above the Appellant attempts to canvass fresh issue and to supply fresh evidence without obtaining prior leave of Court.
Respondent’s counsel submitted that the Appellant’s case in the instant appeal borders on fraud, deceit and misrepresentation. He opined that the proper avenue is to file a fresh action for fraud or apply to the Court below to set aside the said judgment.
He referred on this to the cases of ANATOGU VS. IWEKA (1995) 8 NWLR (pt. 415) 547 SC; N. S. ENG. CO. LTD. VS. EZENDUKE [2012] NWLR [pt. 748] 469.
He concluded that the appeal is not against the ratio of the lower Court decision and therefore incompetent ab initio.
Learned counsel for the Appellant furnished a reply to the Respondent’s preliminary objection in his reply brief.
He submitted that the three (3) grounds of appeal as contained in the Appellant’s amended notice and grounds of appeal filed on 1st June, 2020 are hinged on non-service of the originating processes on the Appellant, non-compliance of the Respondent with the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, in respect of the service of originating processes and lack of proper evaluation of the processes filed by the Claimant/Respondent by the trial Court.
He added that the issues raised in this appeal could not have been raised in the trial Court as the originating processes in suit No. HOK/UND.13/2015 were never served on the Appellant, thereby leading to a breach of the Appellant’s right to fair hearing. Learned counsel for the Appellant submitted that new issues bordering on jurisdiction and/or lack of fair hearing as in the instant case could be raised at any stage of a proceeding even without leave of Court.
He referred on the above on the cases of COMPACT MANIFOLD & ENERGY SERVICES LTD. VS. PAZAN SERVICES NIG. LTD. (2020) 1 NWLR (pt. 1704) 30 at 70; AWUSA VS. NIGERIAN ARMY (2018) 12 NWLR (part 1634) 421 at 448 – 449.
He urged that the Respondent’s preliminary objection be overruled.
It seems to me that the learned counsel for the Appellant has provided adequate answers to the Respondent’s preliminary objection. It is settled law that a party who otherwise would have required leave of Court in raising a fresh issue on appeal would not be so required if such an appeal as in the instant case borders on jurisdiction and/or fair hearing.
The most important ground of appeal in the instant case is the lack of service of originating processes on the Appellant on which the other grounds of appeal rested. In such instance, the Appellant is relieved from the general rule of law that a party raising fresh issue on appeal ought to seek the leave of court to do so.
In the case of MOSES VS. STATE (2006) 11 NWLR (pt. 992) 458 at 503, the Supreme Court per Ogbuagu J.S.C. reinforced its decision in cases such as ELUGBE VS. OMOKHAFE (2004) 18 NWLR (pt. 905) 319 at 334 and held:
“… The consequence is long settled in a number of decided authorities to the effect that an Appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court, without the leave of the Court having been had and obtained … Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.”
See also, ODOCK VS. STATE (2007) 7 NWLR (pt. 1033) 369; AKINTARO VS. EGUNGBOHUN (2007) 9 NWLR (pt. 1038) 103; I.B.W.A. VS. SASEGBON (2007) 16 NWLR (pt. 1059) 195; U. T. B. LTD. VS. DOLMETSCH PHARM (NIG.) LTD. (2007) 16 NWLR (pt. 1061) 520.
The Appellant’s grounds of appeal in this case which raise issues of jurisdiction and fair hearing for the first time on appeal without leave of Court are proper and valid.
The Respondent’s preliminary objection is accordingly overruled.
THE MAIN APPEAL
Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
1. Whether the Appellant was given opportunity to be heard when the trial Court assumed jurisdiction to hear and determine the case without personal service of the originating processes on the Appellant as required by Order 4 Rule 4 and Order 7 Rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 (Distilled from Grounds 1 & 2).
2. Whether it was proper for the trial Court to rely on the affidavit of a person who was not a party to the action to determine the suit. (Distilled from Ground 3).
Learned counsel for the Respondent submitted only one issue for determination of the appeal. It is:
“Whether the learned trial Judge rightly assumed jurisdiction, to hear and determine the substantive action as constituted before it, in accordance with the due process of law.”
Learned counsel for the Appellant submitted on his issue No. 1 that the trial Court was robbed of its jurisdiction to have heard the case in view of the non-service of the originating Court processes personally on the Appellant herein. He referred to the case of UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (pt. 1) 143 and submitted that it is the law that where a particular procedure has been provided for the doing of an act, that procedure alone must be followed. That a combined reading of Order 6 Rule 4 and Order 7 Rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, shows that service of originating process must be by way of personal service. But that, the affidavit of service on page 8 of the record of appeal shows that the originating process in this suit was not served on the Appellant personally.
Appellant’s counsel reproduced the affidavit of service as contained on page 5 of the record of appeal thus:
“I Okokon Okon Attah Chief Bailiff of High Court of Justice, Okobo make oath and say, that on the 10th day of December, 2015, at 11a.m (sic) I served upon Urueoffong/Oruko Local Government c/o her legal officer a Writ of Summons (sic) and Court order issued out of this Court at Okobo High Court Registry upon Defendant upon the complaint of the Plaintiff by delivering the same personally to E. D. Ukoh, Esq. (Def. Legal Rep.) at High Court premises Okobo, before the day I served … did not know … personally but after he/she pointed out to me (sic) by … I asked her if she were … and she said that she was” sworn to at this 14th day of December, 2015”.
He submitted from the above that the originating processes in this case was never served on the Appellant personally but on a certain E. D. Okoh, Esq., (Def. Legal Rep.). That the address of service on the Writ of Summons reads:
“Defendant– Local Government Secretariat, Urue Offong”. Nowhere in the address of service is it stated as being c/o anyone, yet in the said affidavit, the bailiff stated that the address of service as c/o her legal office.”
He submitted that the originating processes were never served on the Appellant personally. This, he said is a defect in competence which is fatal for the proceedings.
He referred on this to the case ofGABRIEL MADUKOLU VS. JOHNSON NKEMDILIM (1962) 1 ALL NLR 587.
Appellant’s counsel further referred to the case of KAYODE VS. ODUTOLA (1994) 2 NWLR (pt. 334) at 21 where the Court stated thus:
“To effect personal service of a Court’s process on a party the bailiff or any officer of the Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave process with a person who works in the same office with the Defendant as it was done in this case even if the latter undertakes to convey it to the Defendant.”
Through the case of KAYODE VS. ODUTOLA (supra) learned counsel for the Appellant emphasised that personal service is personal to the party named in the process and not through an agent even if it is a co-worker.
He added that service of originating process on a party to an action is a condition precedent to the exercise of a Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit has been instituted against him, what the claims are and an opportunity to defend himself, if he has a defence thereto.
On another wicket, learned counsel for the Appellant submitted that failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He referred on this to the cases of SKENCONSULT (NIG.) LTD. VS. UKEY (1981) 1 SC 6; REV. PROF. PAUL EMEKA VS. REV. DR. CHIDI OKOROAFOR (2017) 1 NWLR (pt. 1577) 410 at 431; CHIMA VS. ONYIA (2009) 2 NWLR (pt. 1124) 1; IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (pt. 1492) 148; LABOUR PARTY VS. BELLO (2017) 2 NWLR (pt. 1548) 145 at 156.
He submitted that the service of the originating process of Court on a third party (E. D. Ukoh, Esq) within the premises of the High Court in Okobo where the case was filed amounts to substituted service, which was not permissible in the circumstance of the case.
And, that any other mode of service other than by personal service is substituted service which can only be effected by order of Court pursuant to leave of Court sought for and obtained before such service is effected.
Appellant’s counsel referred to the provisions of Order 7 Rule 5(1) and (2) and submitted that the service of originating process of Court in the instant case was in fact by substituted service without recourse to the rules of Court. Leave of Court was not first sought and obtained based on any existing supporting affidavit. That substituted service of originating processes effected without any order of Court amount to non-service, and the judgment obtained therefrom a nullity. Still on this, learned counsel for the Appellant referred again to the cases of REV. PROF. PAUL EMEKA VS. REV. DR. CHIDI OKOROAFOR (2017) 1 NWLR (pt. 1577) 410 at 431 and IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (pt. 1492) 149 this time for the view that:
“The order of Court for substituted service is tied to the address for service which the Applicant supplied and the specific person named in that order. Neither the bailiff nor any person at all is competent to alter text and subject of the order without prior leave of Court.”
Learned counsel for the Appellant pointed out yet another breach of fair hearing in the suit when he submitted that nowhere in the order of Court placing the suit on the undefended cause list was time abridged for the Appellant to enter her defence in the suit. That the entering of judgment against the Appellant less than a week after the processes of Court were purportedly served on her, having not been put on notice that the time for the entering of her appearance had been abridged by the Court, every proceeding conducted therein amounted to a breach of the Appellant’s fundamental right to fair hearing and therefore must be set aside. He referred to the case of ACHUZIA VS. OGBOMAH (2016) 11 NWLR (Pt. 1522) 59 @ 64.
He urged us to hold that the non-service of the originating processes in this case personally on the Appellant breached the Appellant’s right of fair hearing and equally robbed the trial Court of the jurisdiction to have entertained the suit.
The response of the learned counsel for the Respondent to the Appellant’s issue No. 1 would be deciphered from the submissions of the Respondent on the sole issue formulated for the determination of the appeal.
Learned counsel for the Respondent submitted:
1. Personal service can only be effected on a natural person and not on a corporate body as the Respondent in the instant case.
2. Order 7 Rule 9 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 provides thus:
9(1): subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other processes requiring personal service may be served on the organization by delivery to the director, secretary, trustee or other senior, principal or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the jurisdiction”.
That the service in the instant case was on a Legal Adviser which was also referred to in the same affidavit as “Legal Rep”.
3. That the bailiff of the lower court was on the right footing when he served the Defendant (Appellant) as he did.
4. That the Appellant’s complaint on non-service is at best an improper service which ought to be treated as mere procedural irregularity.
5. There is no law that says the 42 days return date on the writ of summons must be exhausted before the matter is heard. Appellant choose to enter appearance and defend the case within 4 days of service of the originating processes on her.
Learned counsel for the Appellant in his Reply Brief further submitted that whether service is meant for a legal entity (juristic person) in law or an individual human being, service of originating processes filed in court must be by personal means except as otherwise directed by the Court.
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He referred to the provision of Order 7 Rules 2 and 3 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 which states thus:
2. “The process server shall serve an originating process by delivering to the party to be served a copy of the process duly certified as prescribed by Order 6 Rule 2(3)
3. “No personal service of an originating process shall be required where the Defendant has authorized his legal practitioner in writing to accept service and such legal practitioner enters appearance.
Provided that such written authority shall be attached to the memorandum of appearance filed by such legal practitioner”
He submitted that no such above written authority was filed by E. D. Ukoh Esq, who was served the originating process in suit No. HOK/UND. 13/2015 in lieu of the Appellant.
He reiterated the position of the law through the case of EMEKA VS. OKOROAFOR (2017) 11 NWLR (Pt. 1577) 410 @ 431, that where there is no service at all of the originating process or there is some procedural fault in the service, subsequent proceedings in the matter are a nullity ab initio. On Respondents argument that personal service could be effected on a “responsible officer” of the corporate body including “Legal Rep”, Appellant’s counsel answered that the principal place of business of the Appellant within the jurisdiction of the trial Court is stated in the originating process as “Local Government Secretariat, Urue Offong” and not “High Court premises, Okobo” where the bailiff effected service of the originating process on the Appellant.
In any event, according to Appellant’s counsel, the position of “Legal Rep.” is not part of the principal officers mentioned in Section 83 of the Akwa Ibom State Local Government (Administration) Law 2007 (as amended), the law that governed the Local Government Councils including the Appellant.
Perhaps it is better to start a discussion on issue No. 1 by clearing the point raised by the Respondent on the meaning of “personal service”. “Personal service” means service to a person which includes individual and corporate bodies. In other words, the word “personal service” is not limited to service on individuals but also corporate bodies. “Person” in law denotes natural and artificial persons, thus, the word “personal service” applies to both natural and artificial persons.
The undisputable central point of the Appellant on issue No. 1 is that the address for service on the originating processes to be served on the Appellant is stated as Local Government Secretariat, Urue Offong but that, the Affidavit of Service on page 8 of the Record of Appeal stated the address for service as Urue Offong/Oruko Local Government c/o Legal Officer and still on page 8, the processes were delivered personally to E. D. Okoh Esq. (Def. Legal Rep.) at High Court premises, Okobo.
This fact of improper service tantamounts to no service on the Appellant Defendant. This error of improper service culminating into no service of originating processes and its consequence are demonstrated in two notable cases.
In KAYODE VS. ODUTOLA (1994) 2 NWLR (Pt. 334) 21, the Court stated thus:
To effect personal service of a Court’s process on a party, the bailiff or any other officer of the Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave process with a person who works in the same office with the Defendant as it was done in this case even if the latter undertakes to convey it to the Defendant.
And in REV. PROF. PAUL EMEKA VS. REV. DR. CHIDI OKOROAFOR (2017) 1 NWLR (Pt. 1577) 410 @ 431, the Supreme Court stated thus:
Service of an originating process is not an issue of mere technicality. It goes to the root of adjudication. Improper service of an originating process on the Defendant denies the Court of its competence to adjudicate on the matter, since the suit would not have been initiated in accordance with the due process of law. Service of process, particularly the originating process, is a pre-condition to the exercise of the jurisdiction of Court. Where there is no service at all or there is some procedural fault in the service, subsequent proceedings in the matter are 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 prepare his defence thereto. Indeed, the service of an originating process on a party to an action is a condition precedent to the exercise of a Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit has been instituted against him, what the claims are and an opportunity to defend himself, if he has a defence thereto.
By the same token, failure to serve a named party with Court process offends Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And, any breech of this principle of fair hearing renders the proceedings thereafter conducted a nullity.
In other words, lack of fair hearing, service of originating Court process, impinges on the jurisdiction of a Court to hear a matter and always considered fundamental as it goes to the root of adjudication and not a matter of mere irregularity.
See N.I.I.T, ZARIA VS. DANGE (2008) 9 NWLR (Pt. 1091) 127; S.G.B.N LTD. VS. ADEWUNMI (2003) 10 NWLR (Pt. 829) @ 539-540; MARK VS. EKE (2004) 5 NWLR (Pt. 865) 54; NACB VS. ADEAGBO (2004) 14 NWLR (Pt. 894) 551; MTN LTD. VS. BOLINGO HOTELS LTD. (2002) 3 NWLR (Pt. 889) 117; KIDA VS. OGUNMOLA (2006) 13 NWLR (Pt. 997) 377; GUINESS (NIG.) PLC. VS. UFOT (2008) 2 NWLR (Pt. 1070) 51; OKOYE VS. C.P.M.B. LTD. (2008) 15 NWLR (Pt. 1110) 335.
In the instant case, the failure to serve the originating process on the Appellant Defendant as named in the Writ of Summons – an originating process vitiates the proceedings conducted in the Court below. The only possibility of serving E. D. Okoh Esq. as was done by the bailiff of the Court would have been for the Respondent seeking and obtaining an order of Court for substituted service which was not done in the instant case.
Learned counsel for the Appellant was right in terms of his issue No. 1 that the Appellant was not given the opportunity to be heard when the trial Court assumed jurisdiction to hear and determine the case without personal service of the originating processes on the Appellant as required by Order 4 Rule 4 and Order 7 Rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009.
Issue No. 1 is resolved in favour of the Appellant.
Having resolved issue No. 1 which turned out to be an issue of jurisdiction and a fortioria determinant issue for the appeal, I do not find it necessary to deal with other issue (s) in this appeal.
This appeal is meritorious and it is allowed.
The judgment and orders of Hon. Justice G. F. Ette in Suit No. HOK/UND.13/2015 are hereby set aside for lack of jurisdiction.
Suit No. HOK/UND.13/2015 is accordingly struck out.
Parties to the appeal are to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, J.C.A. and I agree that the failure to serve the Appellant personally with the originating process in the action was a fundamental flaw which deprived the Court of jurisdiction to hear the suit.
It is for this reason which has been clearly demonstrated in the lead judgment that I too allow the appeal.
The judgment and orders in Suit No. HOK/UND.13/2015 are hereby set aside, Suit No. HOK/UND.13/2015 is struck out.
I abide by all other orders including the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had privilege of reading in advance the lead judgment my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A., and I agree with his reasoning and conclusion in allowing the appeal.
It is trite law that the issuance and service of an originating process on a defendant in a case is a condition precedent for the exercise of the jurisdiction which the Court may have over the subject matter of an action. Thus, it is a condition precedent to the competency of the Court in assuming jurisdiction and adjudicating over the legal right of litigant.
The failure to serve the appellant with the originating process in this case constitutes a fundamental flaw because, it is the fulfillment of such condition precedent that clothes the Court with competency. The appeal is therefore meritorious and it ought to be allowed. I too allow the appeal and abide by all the consequential orders.
Appearances:
Ita N. Okpoyo, Esq. For Appellant(s)
Emmanuel Sani, Esq. For Respondent(s)
