USMAN v. SAHABI
(2021)LCN/15815(CA)
In the Court of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 17, 2021
CA/S/92/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ABUBAKAR USMAN A. K. A. (JODO) APPELANT(S)
And
NURA SAHABI (A. K. A. MUH’D NURA SAIDA) RESPONDENT(S)
RATIO
THE IMPORTANCE OF SERVICE OF COURT PROCESSES
In resolving the issues in this appeal, it is important right at the onset to emphasise that service of Court processes is a cardinal and fundamental issue and a condition precedent before a Court can have competence to adjudicate. See EKE V. OGBONDA (2006) 18 NWLR (PT. 1012) 506. Since the decision of the Supreme Court in SKENCONSULT (NIG.) LTD V. UKEY (1981) 1 SC 6 and the plethora of cases decided upon its guiding principles, it has remained settled and well established that service of an originating process is a pre – condition to exercise of jurisdiction by a Court. Also, where there is no service or there is a procedural fault in the service of, the subsequent proceedings of the Court are a nullity ab initio. See OKE V. AIYEDUN (1986) 2 NWLR (PT. 23) 548. Further to that, where a defendant is not aware of a pending litigation and did not attend a Court’s proceedings because he was not served, the proceedings of the Court will be tainted with a fundamental vice and rendered null and void. See N.B.A. LTD. V. GUTHRIE LTD. 1993) 3 NWLR (PT. 284) 643, APC V. NDUUL (supra) and N.U.T., TARABA STATE & ORS. V. HABU & ORS (supra) at 393 – 394 F – A. PER GUMEL, J.C.A.
THE POSITION OF THE LAW WHERE SERVICE OF PROCESS IS NOT EFFECTED ON A PARTY WHO IS SUPPOSED TO BE SERVED PROCEEDINGS
It is important to always bear in mind that the service of processes on the defence or the adversary so as to enable it appear to defend the relief sought against it must be a fundamental condition precedent before a Court can have competence and jurisdiction and also perfectly accords with the principles of natural justice.
Where service of process is not effected on a party who is supposed to be served the entire subsequent proceedings on the matter are totally vitiated. It would be immaterial that they were well conducted. The prescription is premised on the radical nature of the right enshrined both in the common law and natural justice principle of audi alteram partem and Section 36 (1) of the 1999 Constitution, as amended. See BAMGBOYE V. UNIV. OF ILORIN (1999) 10 NWLR (PT. 622) 291 and ATT. GEN. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436.
The denial of fair hearing to a party is fatal to the judgment. It renders the proceedings null and void. When there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. In the circumstances of the instant appeal, the lower Court denied the Appellant fair hearing and he thereby suffered a miscarriage of justice. See ADIGUN V. ATT. GEN. OYO STATE (1987) 1 NWLR (PT. 53) 678 and NUT V. HABU (supra). PER GUMEL, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sokoto State High Court delivered on 26th November, 2018 in Suit No SS/11/2018, Coram Judice; Dogon Daji, J.
The Respondent herein as the Plaintiff before the High Court of Sokoto State (lower Court) in a writ of summons dated and filed on 27th February, 2018 and also by paragraph 40 of the accompanying statement of claim sought for the following reliefs. They are:-
(a). The sum of N190,000 as Medical, transport and logistics expenses;
(b). The sum of N5,000,000 (Five Million Naira) as general damages and the loss of his right eye; and
(c). Costs of the action.
The writ of summons and the statement of claim were accompanied by the written statement on oath of 3 witnesses including the Plaintiff/Respondent. There were some other frontloaded documents also.
The Defendant/Appellant was alleged to have been evading service and therefore could not be served with the originating processes. This was placed on record during some of the proceedings of the lower Court. The Defendant/Appellant was said to have purportedly been served with hearing notice and the originating processes by substituted means, it was because of this purported service of the originating processes and hearing notices that the matter proceeded to trial after a pre – trial conference.
During the trial proceedings 3 witnesses, including the Plaintiff/Respondent, adopted and relied on their respective statements on oath. Having not filed any processes before the lower Court and having purportedly been served with series of hearing notices and still being absent, the lower Court proceeded to close the case of the Defendant/Appellant and ordered learned counsel to the Plaintiff/Respondent to file a written address. The written address was filed on 25th October, 2018 upon order made the previous day on 24th October, 2018. The written address was adopted on 26th October, 2018 and the matter adjourned to 15th November, 2018 for judgment.
In its judgment, the Lower Court found in favour of the Plaintiff/Respondent and upheld his claim as set out in the writ of summons and statement of claim with additional order for costs in the sum of N100,000. The Defendant/Appellant was dissatisfied with the judgment of the Court below and he appealed to this Court in a notice of appeal dated and filed on 18th December, 2018. It contains two grounds of appeal. With the leave of this Court granted on 3rd December, 2020, the Appellant filed an amended notice of appeal containing 5 grounds of appeal.
To argue the appeal, learned counsel Mr. A. B. Liman filed the Appellant’s brief of argument on 8th January, 2021. The Respondent’s brief of argument was filed on 3rd February, 2021 by Mr. A. M. Dole, of counsel. A reply brief was filed on behalf of the Appellant on 12th February, 2021. At the hearing of the appeal before us on 15th February, 2021, respective learned counsel to the parties identified, adopted and relied on their filed and exchanged briefs of argument.
At page 4 of the Appellants brief of argument, learned counsel formulated and put forward 3 issues for determination in this appeal. They are:-
1. Whether the Appellant was afforded fair hearing by the Court below before entering judgment against him (Distilled from ground two (2) of the amended notice of appeal)
2. Whether failure to serve the Appellant personally with writ of summons, hearing notices and other Courts processes by the Court below amounted to constitutional breach of the Appellant’s right to a fair hearing and thus robbed the Court of its jurisdiction to entertain and adjudicate on the case.
(Distilled from ground 3)
3. Whether the Respondent had proved his case before the trial Court to entitle him to the relief granted to him by the Court below (Distilled from grounds four and five of the amended notice of appeal).
In paragraph 3.1 at page 3 of the Respondent’s brief of argument, learned counsel adopted the first and the third issues formulated on behalf of the Appellant but also maintained that the second issue was unnecessary and aimed only to waste the time of the Court. Inspite of his misgiving and scepticism on issue two, learned counsel made arguments and submissions on it at pages 4 to 7 of the Respondent’s brief of argument.
Having regards to the facts and circumstances in this appeal, issue two was formulated out of ground 3 of the grounds of appeal, as contained in the amended notice of appeal. After a careful reading of ground 3, there does not appear to be any doubt about its relevance, particularly with respect to some of the pronouncements of the lower Court in the judgment that led to this appeal. Without mincing any words, issue two for determination in this appeal is relevant and well founded. And because of its relevance and importance in the determination of this appeal, I would like to start the determination of the issues herein with issue two.
Issue two is whether failure to serve the Appellant personally with the writ of summons, hearing notices and other Court processes in this matter by the Lower Court as alleged by the Appellant amounted to a violation of his constitutionally guaranteed right to fair hearing which could also deprive the lower Court jurisdiction to entertain the claim of the Plaintiff/Respondent.
In arguing this issue at pages 7 to 17 of the Appellant’s brief of argument, learned counsel began by explaining that the non – service of the originating processes, hearing notices and other processes of the Court on the Defendant/Appellant in the instant appeal amounted to a violation or breach of his right to fair hearing as guaranteed by the 1999 Constitution, as amended. Learned counsel explained further that the failure to afford a party the opportunity to be heard on a matter involving his rights or obligations is unconstitutional and deprives a Court of competence and jurisdiction to proceed as such and same was also capable of rendering its entire proceedings a nullity. In his effort to support his explanations, learned counsel relied on and quoted from the judgments of the Supreme Court in APC V. NDUUL and ORS. (2018) 2 NWLR (PT. 1602) 1 and N.U.T., TARABA STATE V. HABU (2018) 15 NWLR (PT. 1642) 381 as well as the recent decision of this Court in ANDONG V. ASU QUO (2020) 11 NWLR (PT. 1736) 580 at 584.
With respect to the facts in the instant appeal, learned counsel maintained that there is no record that the Appellant was duly served with the originating processes, hearing notices or any other processes by the lower Court. According to learned counsel throughout the entire proceedings of the lower Court, the learned trial Judge was relying on the mere ipse dixit of counsel to the Plaintiff on the service of processes. Learned counsel pointed out that the lower Court did not conduct any inquiry of its own to verify and confirm the bare assertions of learned counsel to the Plaintiff. Learned counsel added further and maintained that throughout the entire proceedings of the lower Court, the learned trial Judge relied solely on what learned counsel to the Plaintiff/Respondent told him about the service of process on the Defendant/Appellant without conducting any verification of same from any official of the Court or processes, such as affidavits of proof of service to satisfy himself that the Defendant/Appellant was indeed duly served as alleged by counsel. At pages 10 – 12 of the Appellant’s brief of argument, learned Counsel Mr. Liman for the Appellant made an attempt to support his arguments and submissions above by referring to the proceedings of the lower Court on 9/04/2018, 23/04/2018, 7/05/2018, 16/05/2018 and 4/06/2018 etc. as set out pages 36 to 39 of the record of appeal.
While pushing this submission to the next level, learned counsel quoted full texts of the record of proceedings at some of the days of hearing, and pointed out that there was no clear indication, if it was anything to go by, that the Defendant/Appellant was evading service. According to learned counsel, the only reasonable inference that can be deduced is that up to 4/06/2018, the Defendant/Appellant had not been served with hearing notices of all the previous proceedings of the Court. Learned counsel pointed out that it was on the same 04/06/2018 that learned counsel to the Plaintiff/Respondent told the lower Court of his intention to apply for an order for substituted service. Also according to Mr. Liman, of counsel, it was during the sitting of the Court on 4/07/2018 that the lower Court appeared to have satisfied itself that the Defendant/Appellant was served with hearing notice by substituted means after it saw what appeared to it to be a proof of service. Against this background, Mr. Liman, of counsel argued that even if it was correct as found by the lower Court that service of hearing notice was duly effected on the Defendant/Appellant by substituted means, it was only with effect to the proceedings of 4/07/2018. Learned counsel argued that all the proceedings of the lower Court prior to 4/07/2018, including the mandatory pre – trial conference by Virtue of Order 26 of the Sokoto State High Court Civil Procedure Rules (High Court Rules of 2015), were held without any notice to the Defendant/Appellant. Learned counsel argued and submitted that the failure to issue and serve hearing notices on the Appellant as required by law rendered the entire proceedings of the lower Court void and of no effect, having been held without jurisdiction.
In another submission, Mr. Liman, of counsel pointed out that it is not enough to serve processes of Court but there must be proof that they were indeed duly served. Learned counsel maintained that there are four ways of proving service of Court processes and they are: –
(a). Endorsement of service by the party served on the reverse side of the relevant process;
(b). By appearance of the party (Defendant) in Court;
(c). By affidavit of proof of service; and
(d). Certificate of service, where service was effected by post.
While referring to some decided cases and provisions of the High Court Rules 2015, learned counsel submitted that none of the four recognised methods of proof of service of Court processes was noticeable in the entire circumstances of the instant appeal. Learned counsel submitted, in conclusion, that from the proceedings of the lower Court it is glaringly clear that the Appellant was never served with any Court processes in respect of the instant action before the lower Court held proceedings and entered judgment against him. According to Mr. Liman, of counsel, the above scenario is a gross violation of the Appellant’s constitutionally guaranteed right to fair hearing which necessarily deprived the Court of the requisite competence and jurisdiction to proceed with the matter. He urged on the Court to so hold and resolve this issue against the Respondent.
In his response, learned counsel Mr. Dole for the Respondent started by re – focusing the perspective of the main issue in this appeal. According to learned counsel what is at stake is not the case of non – service of relevant Court processes but the non – appearance of a defendant to answer a civil claim against him. Upon this changed narrative, learned counsel pointed out that the lower Court was fully satisfied that the Defendant/Appellant was duly served with the originating processes and it later ordered for substituted service on him when it turned out that he was evading service of hearing notices.
Learned counsel referred to and relied on a part of the judgment of the lower Court at page 45 of the record of appeal and maintained that there was no violation of the Appellant’s right to fair hearing at all.
With respect to the cases of APC V. NDUUL & 2 ORS (supra), ANDONG V. ASU QUO (supra) and NUT, TARABA STATE V. HABU (supra) referred to in the arguments and submissions of Learned counsel to the Appellant, Mr. Dole, of counsel, on behalf of the Respondent, pointed out that both are distinguishable against the facts and circumstances in the instant appeal and therefore totally irrelevant and inapplicable. He further maintained that the position taken by the lower Court at page 45 of the record of appeal, as part of its judgment remain unassailable and cannot be faulted.
While still reiterating the position of the Respondent and the lower Court, Mr. Dole, of counsel, remarked that the order for substituted service was not of the originating processes but for hearing notice. Learned counsel, emphasised that the Defendant/Appellant was “directly” served with the originating processes and he “shortly” began to evade service of all subsequent processes thereby necessitating the order for substituted service of hearing notice for the proceedings of 04/07/2018, when the lower Court allowed the plaintiff/Respondent to proceed to prove his claim against the Defendant/Appellant, despite the fact that the lower Court could have invoked and relied on Order 26 Rule 6 of the High Court Rules, 2015 to enter a default judgment against the Defendant/Appellant. And because of this option, learned counsel argued that the lower Court had sufficiently bent over backwards to accommodate the Defendant/Appellant by allowing him participate at the trial to cross examine any of the 3 witnesses who testified in support of the claim before it, if he so wished. Learned counsel concluded but the Appellant failed to avail himself of any of the opportunities given to him by the lower Court to file a defence and participate at the trial of the action against him and should therefore not be allowed to waste the time of this Court. He urged on the Court to so hold and resolve this issue against the Appellant.
The pith and substance of the complaint of the Appellant in ground two of the amended grounds of appeal out of which issue one was formulated is that he was not afforded the opportunity to be heard at all by the lower Court before it took proceedings in the action against him. I think it is convenient and reasonable to take issues 1 and 2 together since the arguments in support of them are interwoven and interrelated.
In arguing issue one, learned counsel Mr. Liman for the Appellant began by an emphatic opening remark that the Appellant had never been heard throughout the entire proceedings of the lower Court before judgment was entered against him. And because of not having been afforded any opportunity of being heard, the Appellant was denied his fundamental right to fair hearing and the lower Court, in so doing, failed to observe the principle of audi alteram partem, which mandates a Court, in the exercise of its adjudicatory functions, to hear all the sides in a dispute before it.
Further to the above opening statements, learned counsel sought to buttress and elucidate on same by referring to the provisions of Section 36 (1) of the 1999 Constitution, as amended and the decisions of this Court in ALAKE V. ABALAKA (2003) 6 NWLR (PT. 818) 124 at 125, UYO LOCAL GOVT. V. AKWA IBOM STATE GOVT. & 2 ORS. (2020) 38 WRN 144 at 152 and SAHARA REPORTERS & ANOR V. SARAKI (2019) 17 WRN 1 – 194, 55 at 49. According to Mr. Liman, of counsel, the Appellant was away from his homestead and remained so away throughout the period of the proceedings of the Court below as such was never personally served with any of the processes in respect of the instant action.
In conclusion learned counsel maintained that the right to fair hearing is a fundamental constitutional imperative deeply entrenched in our system of administration of justice before the Courts and its violation could lead to the proceedings of a Court being null and void or vitiated. He relied further on the views of the Supreme Court in APC V. NDUUL (supra) and also the cases of ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT. 905) and STATE V. ONAGORUWA (1992) 2 NWLR (PT. 221) 33 and urged on the Court to find and hold that the Appellant was never personally served with any of the processes filed by the Plaintiff/Respondent against him and to proceed further to resolve this issue against the Respondent.
In his response, learned counsel Mr. Dole, for the Respondent, began with an explanation that the Appellant was afforded fair hearing within the meaning of Section 36 (1) of the Constitution, as amended. He further explained that one of the twin pillars of the principle of natural justice is captured in the latin maxim – audi alteram partem. Thereafter Mr. Dole, of counsel cited and relied on the decision of the Supreme Court in the case of UNIBIZ NIG. LTD. V. COMMERCIAL BANK CREDIT LYONNAIS LTD (2003) 6 NWLR (PT. 816) 402 where it was held that fair hearing entails the opportunity to be heard not necessarily that the party must be heard. According to learned counsel the Appellant was given reasonable opportunity to respond to the originating processes served on him and to appear in person or by counsel to defend the claim of the Respondent against him. And it was only after every effort was resisted by the Appellant that the order for substituted service of hearing notice was made against him and therefore it was the Appellant who chose not to appear before the lower Court. Learned counsel urged on the Court to discountenance and disregard the statement of the Appellant that he was away out of the jurisdiction of the lower Court when the action was heard and determined. Learned counsel also argued, maintained and submitted that the Appellant was never denied his right to fair hearing because the opportunity to be fully heard was duly extended to him throughout the trial of this action. He urged on the Court to so hold and resolve this issue against the Appellant and to proceed further to dismiss the appeal for being devoid of any merit.
In resolving the issues in this appeal, it is important right at the onset to emphasise that service of Court processes is a cardinal and fundamental issue and a condition precedent before a Court can have competence to adjudicate. See EKE V. OGBONDA (2006) 18 NWLR (PT. 1012) 506. Since the decision of the Supreme Court in SKENCONSULT (NIG.) LTD V. UKEY (1981) 1 SC 6 and the plethora of cases decided upon its guiding principles, it has remained settled and well established that service of an originating process is a pre – condition to exercise of jurisdiction by a Court. Also, where there is no service or there is a procedural fault in the service of, the subsequent proceedings of the Court are a nullity ab initio. See OKE V. AIYEDUN (1986) 2 NWLR (PT. 23) 548. Further to that, where a defendant is not aware of a pending litigation and did not attend a Court’s proceedings because he was not served, the proceedings of the Court will be tainted with a fundamental vice and rendered null and void. See N.B.A. LTD. V. GUTHRIE LTD. 1993) 3 NWLR (PT. 284) 643, APC V. NDUUL (supra) and N.U.T., TARABA STATE & ORS. V. HABU & ORS (supra) at 393 – 394 F – A.
According to the decision of the Supreme Court in OREDOYIN V. AROWOLO (1989) 4 NWLR (PT. 114) 172 an appeal is an invitation to a higher Court in the hierarchy of Courts, as allowed by law or the Constitution, to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable laws, the lower Court arrived at a correct decision. The powers of this Court with respect to the determination of appeals before it are by way of a re – hearing. The word “re-hearing” in this context means a hearing on the printed record of appeal only.
Once, as in the instant appeal, there has been no formal complaint before this Court by any party with respect to the correctness of the record of appeal, there is an irrebuttable presumption that it is correct. In a plain language, the Appellate Court, counsel and the parties before it are bound by the contents of the record of appeal. It is the bundle of documents that the Court relies on to keep itself abreast of what transpired in the lower Court on what it would solely rely to determine an appeal. See AUDU V. ATT. GEN. FEDERATION (2012) LPELR – 15527 (SC) 16 – 17 D – A.
With respect to the facts and circumstances in this appeal, I believe that it is necessary to focus properly on the most relevant parts of the proceedings of the lower Court with a view to finding if the trial of the matter on appeal was conducted in substantial compliance with the extant procedural safeguards and Constitutional imperatives or norms. To achieve this objective, I think pages 36 to 42 of the record of appeal are significant, relevant and of meaningful assistance to the resolution of this appeal. They are accordingly reproduced in full thus:-
“IN THE HIGH COURT OF JUSTICE OF SOKOTO STATE
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
BEFORE HIS LORDSHIP
HON. JUSTICE M. U. DOGON DAJI
SUIT NO 55/11/2018
BETWEEN:
NURA SAHABI (A.K.A MUHD NURA SAIDA)……. PLAINTIFF
AND
ABUBAKAR U5MAN (A.K.A JODO)………….. DEFENDANT
09/04/18
A. M. Dole – For the plaintiff
A. M. Dole – The case is for mention. We are sure that the defendant have been served. We urge this matter to be adjourned to enable us come for hearing. We intend to call our witnesses.
Court – I will adjourn this matter for pre-trial conference. This matter is therefore hereby adjourned to the 23rd of April 2018 for pre-trial conference. The defendant to be served.
SIGNED
HON. M. U. DOGONDAJI (JUDGE)
9/04/18
23/04/18
A. M. Dole wit C. S. Mathias – For the plaintiff
A. M. Dole – The matter is for pretrial conference. The defendant have been served. The matter is for pretrial conference. We have filed our pretrial conference answer sheet and we are ready for the pretrial conference. The plaintiff filed answers to questions on the 17th day of April 2018 and we adopt same as our answers and we urge this Court to give effect to the answers.
Court: This matter is adjourned to the 7th day of May 2018 for report of pretrial conference and possible hearing. Hearing notice to be served on the defendant personally.
SIGNED
HON. M. U. DOGONDAJI (JUDGE)
23/04/18
7/05/18
A. M. Dole with C. S. Mathias – For the plaintiff. The plaintiff is in Court. The defendant never appeared and has not been represented by a counsel.
A. M. Dole – The matter is adjourned to today for report of on pretrial conference and we are not ready.
Court – The report is not ready and it will be ready by the next adjourned date. The case is therefore adjourned to the 16th day of May 2018 for report of pretrial conference and possible hearing. Hearing notice to served on the defendant.
SIGNED
HON. M. U. DOGONDA]I (JUDGE)
07/05/18
16/05/18
A. M. Dole – For the plaintiff. The plaintiff is in Court.
A. M. Dole – The defendant is not in Court and he is not represented by a counsel.
He has never appeared before this Court. The bailiff of this Court could not served the defendant. Since the defendant is erading service we intend to come formally to apply that he be served through substituted means.
Court: This matter is adjourned to the 4th day of June 2018 for report of pretrial conference and possible hearing. Hearing notice to be served on the defendant.
SIGNED
HON. M. U. DOGONDAJI (JUDGE)
16/05/18
04/06/18
A. M. Dole – For the plaintiff.
A. M. Dole – The matter is for report in pretrial conference. The defendant is not aware of today’s date because he has not been served. We are asking for a date to enable service be effected by substituted means.
Court: This matter is adjourned to the 20th day of June 2018 for report in pretrial conference.
SIGNED
HON. M. U. DOGONDAJI (JUDGE)
04/06/18
4/7/18
A. M. Dole – For the plaintiff.
A. M. Dole – The case is adjourned to today for report of pretrial conference and possible hearing. We have 3 witnesses we intend to call to prove our case and we have one witness today. The defendant is still not in Court. Service has been effected by substituted means as directed by this Hon. Court and the proof of service is before this Hon. Court.
Court: Since it is clear that the defendant in this case have been served the hearing notice of this Court by substituted means as evidence by the proof of service before this Court, this case will proceed in the absence of the defendant.
A. M. Dole – As I stated earlier we have one witness in Court.
PW1 Nura Muhammad Saida. My names are Nura Sahabi Saida, I’m also known as Muhd Nura Saida. I live at saida village Sanyinna District of Tambuwal L. G in Sokoto state. I’m a married man and I’m blessed with children. My occupation is driving. I’m a driver of keke Napep (Agwagwa da Buje). The defendant in this case is Abubakar Usman. He is also known as (JODO). The depositions I directed my lawyer is reduced into writing. I thumbprinted the said document i.e. the deposition on oath. I wish the Court to adopt same as my evidence before this Court.
I pray this Court to grant my prayers in this case. As a result of what the defendant did to me I sustained injuries on my eye. As a result of that I bought some drugs and drugs were bought for me by friends. I was also at the Federal Medical Centre Birnin Kebbi where I also bought some drugs.
A. M. Dole – The witness having identified prescriptions of the special hospital Sokoto and Federal Medical Centre Birnin Kebbi and some receipt of some pharmacist in Sokoto we wish to tender same in evidence.
Court: The witness having identified 10 pieces of prescription forms from specialist hospital Sakata, 3 pieces of prescription forms from Federal Medical Centre Birnin Kebbi, one cash receipt from SAMCO P.M.S Sakata and a piece of paper with some prescriptions same are hereby admitted in evidence and marked as exhibit A to A9, B to B2, exhibit C and D respectively. The 10 forms from specialist hospital Sakata as exhibit A to A9, the 3 prescription forms from Federal Medical Centre Birnin Kebbi as exhibit B to B2, the receipt from samco pms as exhibit C and the piece of paper with some prescriptions as exhibit D.
Witness – The 5 million Naira I asked for compensation is not too much because of the importance of my eye. I urge this Court to assist me to do justice to me because of the injuries meted out to me by the defendant.
A. M. Dole – We are seeking for an adjournment to enable us call our remaining witnesses.
Court: This matter is adjourned to the 15th of July 2018 for continuation of hearing. Hearing notice to be served on the defendant by substituted means.
SIGNED
HON. M. U. DOGONDAJI
(JUDGE)
4/7/18
16/07/18
A. M. Dole – For the plaintiff.
A. M. Dole – The plaintiff is in Court. The case is for continuation of hearing and we have our last two witnesses. The defendant is aware of this date but decided not to appear. The defendant was served the hearing notice of this Court by substituted means as directed by this Hon. Court. We have 2 witnesses today and we are ready to call them.
PW2 – Umar Kwaire (affirmed and to speak in Hausa language). My name is Umar Kwaire. I live at Saida village, Sanyinna District of Tambuwal local government of Sokoto state. I know the plaintiff in this case. He is here in Court. I know the defendant in this case. He is not here in Court today.
I went to lawyer’s office and I made my statement and I came to the Court where I thumbprint the said statement. I adopt the said statement on oath as my evidence before this Court. I don’t have anything more to add in addition to the deposition on oath.
PW3 – ABUBAKAR DAN’INNA (Affirmed and speaks Hausa language). My names are Abubakar Dan’inna. I lived at saida village of Sanyinna District of Tambuwal local government of Sokoto State. I know the plaintiff in this case. I also know the defendant in this case and his name is Abubakar Usman (JODO). He is not before this Court.
I made my statement under oath. I wish to adopt the statement as my evidence before this Court. I don’t have anything to add in addition to my statement on oath.
A. M. Dole – That is the case for the plaintiff and we are closing our case. We are urging the Court to adjourn this case for defence.
Court: This matter is adjourned to the 24th of July 2018 for defence. Hearing notice to be served on the defendant by substituted means.
SIGNED
HON. M. U. DOGONDAJI (JUDGE)
16/07/18
24/10/18
A. M. Dole – for the plaintiff.
A. M. Dole – The matter is for the plaintiff
A. M. Dole – The matter is for defence. The defendant is not in Court and is not been represented. Since the defendant is not here we are applying for this Hon. Court to close the case for the defence and apply that we be given leave to file our written addresses.
Court: As rightly stated by the counsel to the plaintiff the defendant in this case even though been repeatedly served the processes of this Court by substituted means he chose not to appear before this Court. Apparently the defendant is not interested in defending this case. This Court therefore is closing the case for the defendant and leave is hereby granted for the plaintiff to file his written addresses. This matter is therefore hereby adjourned to the 26th of October 2018 for adoption of written address. Hearing notice to be served on the defendant by substituted means.”
Also, at page 45 of the record of appeal, the lower Court as part of its judgment remarked thus:-
“After the defendant was served with all the summons, statement of claim, ——— the defendant failed to enter, appearance or file any document —”
(See lines 3 – 7 at page 45)
Sequel and further to the above purported scenario, the lower Court observed that:-
“When the defendant was to be served the hearing notice of this Hon. Court after he was served with the originating processes he eroded (sic) service. As a result of this the counsel for the plaintiff applied for leave of this Hon. Court to effect service to the defendant (sic) by substituted means via a motion No. SS/M.176/2018 which was granted on the 4th June, 2018 and since then all other processes of this Court including hearing notice, were served on the defendant by substituted means ——–“
(See lines 8 – 14 at page 45 of record of appeal)
Against the backdrop of the above remark and observation of the lower Court at page 45 and the earlier proceedings of the Court at pages 36 – 42 etc, particularly the proceedings of 4th June, 2018 as contained at page 38 of the record of appeal, it is perplexing to see that the purported motion No. SS/M. 176/2018 was not transmitted as part of the record of appeal. It is indeed a transmittable process in the circumstance of the instant appeal. It is also manifestly erroneous for the lower Court to find as it did that it made an order for substituted service of hearing notices on the Defendant/Appellant on 4/06/2018 because there is no such indication on the record of proceedings of that date as contained at page 38. Justice must not only be done. It must be shown to have manifestly been done. The failure of the Respondent to transmit the motion ex – parte for an order for substituted, if at all it was filed argued and granted as a supplementary record is fatal to the case of the Plaintiff. Equally fatal is the non – inclusion of the proceedings, if any, during which the order for substituted service of hearing notices was made, if at all. The endorsement and return copies of the originating processes ought to have been transmitted as part of the record of appeal.
It must also be noted that no particular address of the Defendant was endorsed on the writ of summons. However, an address for service of the statement of claim was endorsed as contained at page 11 of the record of appeal. Service of originating process as provided by Order 12 Rule 2 of the Sokoto State High Court Rules, 2015 is by delivering same to the person to be served, i.e. service is personal, unless otherwise ordered by the Court as the circumstances of any particular case may have required.
According to Order 12 Rule 28 of the Sokoto State High Court Rules, 2015, in all cases where service of any writ or document shall have been effected by a bailiff or other officer of the Court, an affidavit of service sworn to by such bailiff or other officer shall on production, without proof of signature be prima facie evidence of service. No such affidavit of service was referred to either by the lower Court itself or by counsel to the Respondent herein, if there was any at all. I doubt, because after a careful perusal of the compiled and transmitted record of appeal no such affidavit was shown to have existed at all. This is a fundamental aspect of the trial of the case against the Appellant and it should not be left to conjecture or speculation. Proof of personal service of originating processes or as may otherwise has been ordered by the Court is a condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 SC NLR 341 at 348 and IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT. 1492) 147 at 203.
More important, a proper service is essential for purposes of fair hearing. See STIRLING CIVIL ENGINEERING NIG. LTD V. FIDELITY BANK PLC. (2013) LPLER – 22634 (CA) 22.
At paragraph 4.7 at page 4 of the Respondent’s brief of argument, learned counsel Mr. Dole had maintained that all the records of the Court show that the Appellant was served with the originating processes and he evaded further service of hearing notice. That it was this circumstance that led to his being served hearing notice by substituted means. With all due respect to the learned counsel, this is profoundly erroneous and definitely incorrect. There is no such record before this Court on which officer of the lower Court effected personal service of the originating processes on the Defendant/Appellant, at which address and on what date as required by law. Even the purported order for substituted order of hearing notice by posting, it was not shown which officer of the lower Court or any other authorised person who effected it.
Also, learned counsel Mr. Dole made a blanket assertion that nearly all the decided cases referred to in the arguments and submissions of Mr. Liman, of counsel on behalf of the Appellant were distinguishable and inapplicable to the facts and circumstances in the instant appeal. This too, is not correct, even on the facts of the twisted narrative that learned counsel Mr. Dole sought to impress on this Court. The decisions of the Supreme Court in APC V. NDUUL (supra), NUT V. HABU (supra) are relevant, applicable and helpful to the resolution of this appeal. The remaining decisions cited on behalf of the Appellant, are also of meaningful assistance.
In view of all the foregoing, it was erroneous for the lower Court to find and hold that the Appellant was duly served with the originating processes in this action. This is a total misconception and erroneous in law and fact.
Although Order 12 Rule 5 of the Sokoto State High Court Rules, 2015 allow for the making of an order for substituted service of its processes in appropriate and deserving circumstances, no such order was properly and validly made in the circumstances of this action. It was equally erroneous for the lower Court to have believed that any such order was made and to proceed on that wrong assumption. In a nutshell there was total failure to prove the service of the originating processes on the Appellant. Therefore, the lower Court is devoid of jurisdiction and competence to entertain the claim of the plaintiff/Respondent.
It is important to always bear in mind that the service of processes on the defence or the adversary so as to enable it appear to defend the relief sought against it must be a fundamental condition precedent before a Court can have competence and jurisdiction and also perfectly accords with the principles of natural justice.
Where service of process is not effected on a party who is supposed to be served the entire subsequent proceedings on the matter are totally vitiated. It would be immaterial that they were well conducted. The prescription is premised on the radical nature of the right enshrined both in the common law and natural justice principle of audi alteram partem and Section 36 (1) of the 1999 Constitution, as amended. See BAMGBOYE V. UNIV. OF ILORIN (1999) 10 NWLR (PT. 622) 291 and ATT. GEN. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436.
The denial of fair hearing to a party is fatal to the judgment. It renders the proceedings null and void. When there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. In the circumstances of the instant appeal, the lower Court denied the Appellant fair hearing and he thereby suffered a miscarriage of justice. See ADIGUN V. ATT. GEN. OYO STATE (1987) 1 NWLR (PT. 53) 678 and NUT V. HABU (supra).
Upon all the foregoing, issues 1 and 2 are hereby resolved in favour of the Appellant against the Respondent. Having resolved issues 1 and 2 in favour of the Appellant against the Respondent, issue 3 is of no moment and has been rendered academic. I do not wish to give it any further attention. Consequently, this appeal is meritorious and is allowed. The judgment of the Sokoto State High Court in Suit No. SS/11/2018 delivered on 26th November, 2018 having rendered without jurisdiction is set aside. Suit No. SS/11/2018 is struck out. I order for N50,000 costs against the Respondent.
SAIDU TANKO HUSSAINI, J.C.A.: My lord in the lead judgment has addressed all salient issues in this appeal and I agree with him in toto with the reasoning and conclusion that this appeal has considerable merit and the same be allowed.
There is no gain saying that service of Court processes particularly the Originating processes which herald any action on the person who is affected by it, is a fundamental prerequisite and a condition precedent to the hearing of the suit. Failure to effect service of such processes on the addressed party before the suit is set down for hearing or trial, automatically ousts the exercise jurisdiction by the Courts as to render null and void any action or proceedings conducted in absence of any such service. No order can validly be made against a party who was not put on Notice of the case against him. This appeal thus, is allowed and the judgment delivered at the High Court of Sokoto State is set aside and suit No. SS/11/2018 hereby accordingly is struck out. I abide by the other orders contained in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Ali A. B. Gumel, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Mr. A. B. Liman For Appellant(s)
Mr. A. M. Dole For Respondent(s)