APC v. AJONYE & ORS (2021)

APC v. AJONYE & ORS

(2021)LCN/15172(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, June 03, 2021

CA/MK/204/2020

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ALL PROGRESSIVE CONGRESS (APC) APPELANT(S)

And

1. O.M. AJONYE, ESQ 2. SAM ADAMA, ESQ 3. S.O. OKPALE, ESQ 4. HON. JOHNSON BABA ODEH RESPONDENT(S)

RATIO

WHETHER OR NOT SERVICE CAN BE EFFECTED ON THE SECRETARY OF A POLITICAL PARTY

The question to consider here is: Could service be effected on the Secretary of a political party? Every political party is duly registered under the Laws of this Country, particularly the Constitutional and Electoral Act, 2010. It therefore has the life of a registered company even though guided by different Rules, in this case, the Constitution and INEC guidelines. When service on Counsel fails, the standard practice is that the parties can be served personally. Here, the party is not a human being so cannot be personally served but an artificial person, and like companies, the standard practice was set in the case of KRAUS THOMPSON ORG LTD V UNICAL (2004) LPELR-1715(SC) thus:
“A corporate body in this context, either a company registered under the Companies and Allied Matters Act, 1990 or a statutory corporation such as the respondent in this case, can only be served under the relevant rules of Court by giving the Writ of Summons or document to any director, trustee, secretary, or other principal officer of the corporate body to be served, or by leaving the same at its registered or Head office. See Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285.” Per MUSDAPHER, J.S.C.
And the case of OKOYE & ANOR V CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505(SC) wherein the apex Court held thus:
“… service may be effected on the company by registered post addressed to its principal office in the state or by delivery to the principal officer wherever he may be found in the state or by delivery at the company’s office in the state to one apparently in charge of such office provided further where the company has no office in the State, service shall be effected by registered post after due compliance with Sub-rule (2) of this Rule.” Per TOBI, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT A COURT SHOULD ALWAYS PUT A PARTY ON NOTICE OF DATE OF ITS ADJOURNMENT OF ANY MATTER BY SENDING HEARING NOTICES

See ACHUZIA V. OGBOMAH (2016) LPELR-40050(SC) wherein the apex Court held thus:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous adjourned date. Whenever proceedings in a case or matter resumes and a party or his counsel is absent, the Court must ascertain whether or not the party absent was aware that the case was coming up on that resumed sitting day. It is not a matter of assumption. Rather, it must be inquired into in open Court and if it became apparent that the party absent was not notified of that day, the Court must adjourn the matter for him/it to appear. See Sunday Melake Rex vs Chief Emmanuel Eyo lnang (2003) FWLR (pt. 170) 1469 at 1489 Adebayo Ogundoyin & 2 Ors vs David Adeyemi (2001) FWLR (pt 71) 1741 at 1755.” Per SANUSI, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT FAILURE TO SEND A HEARING NOTICE IS A BREACH OF A PARTIES RIGHT TO FAIR HEARING

The failure to so serve the Appellant with a hearing Notice breached the Appellant’s right to fair hearing. SeeACHUZIA V. OGBOMAH (SUPRA) wherein the Supreme Court held thus:
“…the requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu vs Ibejiuba Nwaosu (2000) 4 NWLR (pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also Obimonure vs Enrinosho & Anor (1966) All NLR 245 at 247. The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor vs Sekondy Ukey (1981) 1 SC 6 wherein this Court held thus:- “The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice”. What I am trying to say in effect is that when there came about that failure to serve notice of the date of hearing on the Appellant, it means that the requirement of fair hearing has not been observed and the resultant decision that followed is a nullity and cannot be allowed to stand. See Wema Bank Nigeria Limited & Ors vs S. O. Odulaja & Ors (2000) FWLR (pt. 17) 138 at 142 – 143; A. C. B. Plc vs Losada Nig. & Anor (1995) 7 SCNJ 158 at 167.” Per PETER-ODILI, J.S.C.
And the case of NUT TARABA STATE & ORS V. HABU & ORS (2018) LPELR-44057 (SC) where the apex Court held thus:“… Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution. The consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void. See: Obimonure Vs Erinosho (1966) 1 ANLR 250; Skenconsult (Nig) Ltd. Vs Sekondy Ukey (1981) 1 SC 6; Wema Bank Nig. Ltd Vs Odulaja (2000) FWLR (Pt.17) 138 @ 142-143 A-C; A.C.B. Plc Vs Losada Nig. & Anor. (1995) 7 SCNJ 158 @ 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the 1st and 6th appellants’ right to fair hearing.” Per KEKERE-EKUN, J.S.C.
Serving a Hearing Notice is not a mere procedural issue but fundamental and substantive, it goes to the competence of the Court as have been so stated in the case ofLEEDO PRESIDENTIAL MOTEL LTD V. BANK OF THE NORTH LTD ANOR (1998) LPELR-1775(SC) wherein the apex Court held thus:
“Where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence (or jurisdiction) of the Court to deal with the matter. See: Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6, 27 where the dictum of Lord Greene, M.R. in Craig v. Kanseen (1943) KB 256 at pp. 262263; (1943) 1 ALL ER 108, 113 was cited with approval, Lord Greene has said: “The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex-parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained.” As Nnamani, JSC rightly pointed out in Skenconsult, (supra), the above is also the attitude of Nigerian Courts on the issue of proper procedure. The learned Justice of the Supreme Court, said at p. 26 of the report: “The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.” Per OGUNDARE, J.S.C. PER NIMPAR, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is fundamental to any proceedings. See the case ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR-46528(SC) wherein the apex Court held thus:
“Jurisdiction is therefore of paramount importance in the process of adjudication. Where there is no jurisdiction in a Court to handle or adjudicate on a matter before the Court, everything done or every step taken in the proceedings amounts to nothing. See Attorney-General for Trinidad & Tobago V. Erichie (1893) AC 518 at 522, Timitimi v. Amabebe 14 WACA 374, Mustapha v. Governor of Lagos State (1987) 2 NWLR (pt 58) 539, Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 206. In otherwords, jurisdiction is the lifewire of any proceeding in Court and everything done in the absence of jurisdiction is simply a nullity. See Jumang Shelim & Anor v. Fwendim Gobang (2009) 7 SCM 165; (2009) 12 NWLR (pt 1156) 435.” Per ARIWOOLA, J.S.C.
And the case of MUSACONI LIMITED V. ASPINALL (2013) LPELR-20745 (SC) where the Supreme Court held thus:
“Jurisdiction, it is settled, is fundamental to adjudication. It is a radical and crucial necessity for, as in the instant case, where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nulity ab initio however well conducted the proceedings and brilliantly decided, the issues agitated therein are. See Oloriode V. Oyebi (1984) 5 SC 1 at 32 – 33, Mustapha V. Governor of Lagos State and Musaconi Limited V. Mr. H, Aspinall (2013) LPELR 20745 (SC). It must be restated that a Court is only vested with jurisdiction and power to adjudicate on an issue when the matter is brought before it in accordance with both substantive and adjectival law. See Madukolu V. Nkemdilim (1962) SCNLR 341, Ukwu V. Bunge (1997) 8 NWLR (Pt 518) 527.” Per MUHAMMAD, J.S.C.
Also see the case of SHITTA-BEY V. A.G. FEDERATION & ANOR (1998) LPELR-3055(SC) where Per ONU, J.S.C. held thus:
“…stressing the importance of jurisdiction, Bello CJN said inUtih & Ors v. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166:- “Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE S. O. ITODO on the 19th June, 2020 wherein the lower Court struck out the motion of the Appellant to set aside the proceedings of 13th November, 2018 to 14th March, 2019. The Appellant dissatisfied with the ruling, filed a Notice of Appeal dated 1st July, 2019 setting out 6 grounds of appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. After the conduct of the March/April, 2015 general election, the Appellant through its Legal Adviser allegedly informed all the candidates that anyone desirous of challenging the outcome of the election should engage a Counsel of his choice and at his cost and not at the cost of the Appellant. The 4th Respondent herein engaged the services of the 1st – 3rd Respondents as Legal Practitioners to file his election petition at the Election Petition Tribunal which they did and even joined the Appellant as a co-petitioner. Upon the conclusion of the Petition, the 1st – 3rd Respondents by a

letter dated 19th August, 2015 demanded for payment of professional fee for handling the Petition. The State Legal Adviser of the Appellant responded by a letter dated 21st August, 2015 notifying them that APC neither briefed them to file a Petition nor to file an appeal and therefore not responsible for their professional charges in any way whatsoever. Being dissatisfied with the response of the Appellant in not paying their professional fees, they filed a writ of summon dated 15th day of February, 2016 and filed the motion on notice for summary judgment. The trial Court fixed the matter for 28th September, 2018 for mention. However, the matter did not come up on the aforesaid 28th September, 2018 but eventually did on the 13th November, 2018 to 14th March, 2019 alleged without serving hearing notice on the Appellant. When the matter came up within aforementioned dates, the Respondents took evidence of PW1 and PW2 and thereafter on the application of the 1st -3rd Respondents, the Court below foreclosed the Appellant. Therefore, the Appellant brought an application to set aside the proceeding of the aforesaid dates. In opposing, the 1st – 3rd Respondents

filed a Counter-Affidavit and written address and the Appellant also filed a further affidavit. And these Exhibits were attached to the affidavits:
i. EXHIBIT A: The proceedings of the abovementioned dates.
ii. EXHIBIT 1: Affidavit of Service dated 6th of February, 2019.
iii. EXHIBIT 2: Affidavit of Service dated 11th January, 2019.
iv. EXHIBIT 3: Affidavit of Service dated 7th February, 2019.

Issues were joined in the pleadings and the matter went to trial. After full consideration, the Court below struck out the Appellant’s motion, thus the appeal.

Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the Appeal. The Appellant’s brief settled by SHUAIBU ENEHOH ARUWA, ESQ., is dated 10th day of March, 2021, filed on the same day but deemed on the 11th March, 2021 and distilled 1 issue for determination as follows:
Whether the learned trial Court ought to set aside the proceedings of 13th November, 2018; 17th January, 2019; 11th February, 2019; 25th February, 2019 and 14th March, 2019. (Distilled from grounds 1, 2, 3, 4, 5 and 6 of the Notice and grounds of Appeal).

The 1st – 3rd Respondents’ brief settled by OKPALE, SUNDAY OJIKPA ESQ., is dated the 29th January, 2021, filed on the 1st February, 2021 but deemed on the 11th day of March, 2021 and it formulated 2 issues for determination thus:
1. Whether the appeal is incompetent upon the failure of the Appellant to seek and obtain leave before filing the notice of appeal, thereby ousting the jurisdiction of the Honourable Court rendering the appeal liable to be struck out.
2. Whether the learned trial Judge was right in refusing to set aside the proceedings of the 13th November, 2018, 17th January, 2019; 11th February, 2019, 25th February, 2019 and 14th March, 2019.

Thereafter, the Appellant filed a Reply brief dated 10th March, 2021, filed on the same day.

PRELIMINARY OBJECTION:
The 1st – 3rd Respondents also filed a Notice of Preliminary Objection dated 29th January, 2021 and filed on the same day, setting out 4 grounds of objection which states thus:
GROUND UPON WHICH THE OBJECTION IS RAISED
1. The appeal is against the interlocutory decision of the lower Court refusing to exercise her

discretion in favour of the Appellant.
2. The grounds of appeal are grounds of facts or at best grounds of mixed law and facts.
3. The leave of either the Court below or of this Honourable Court is required for the appeal to be competently filed.
4. The requisite leave was not sought and/or obtained.

Upon consideration of the case file, it is evident therein that the Appellant by way of an application filed on the 8th February, 2021 sought for trinity prayers for extension of time and leave to appeal which was granted on the 10th March, 2021. By that, the Preliminary Objection became spent and overtaken by the grant of the leave. It is hereby struck out. The Court shall consider the main appeal on its merit.

However, I observed that the Appellant seeks to challenge the jurisdiction of the Court over interlocutory proceedings of different dates with just one Notice of Appeal. The proceedings of the different dates are subject of different Notices of Appeal or by an application to seek to combine the different proceedings of different dates into one Notice of Appeal seems irregular. The Appellant with just a single Notice challenged

interlocutory proceedings of different dates, different Notices of Appeal can be filed and with leave of Court can be consolidated because the Appellant is at liberty to incorporate an interlocutory appeal in a substantive appeal if he has one but all that must be done with leave of Court.

It should be noted that the 4th Respondent did not file any brief in this appeal.

APPELLANT’S BRIEF
SOLE ISSUE
Whether the learned trial Court ought to set aside the proceedings of 13th November, 2018; 17th January, 2019; 11th February, 2019; 25th February, 2019 and 14th March, 2019. (Distilled from grounds 1,2,3,4,5 and 6 of the Notice and grounds of Appeal).

In arguing this sole issue, the Appellant submits that the jurisdiction of the Court is a crucial question of competence which is extrinsic to the adjudication on the merit as held in MADUKOLU V. NKEMDILIM (1962) N.S.C.C. VOL. 2 P. 379 and where a Court lacks jurisdiction to entertain the suit, it is incompetent to pronounce judgment on same as held in GALADIMA V. TAMBAI (2000) 11 NWLR (PT. 677)1. The Appellant argued that the service of the Originating Process and indeed hearing notice

on a party is fundamental and a condition precedent to the exercise of jurisdiction to hear, entertain and determine a matter and where there is no service or where service is defective, the Court would be divested of jurisdiction to entertain, hear and determine a matter as held in FBN V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120; KIDA V. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 and ODUTOLA V. KAYODE (1994) 2 NWLR (PT. 324) 15-16. The Appellant asserts that the rationale for service of hearing notice on a party is stemmed from the principles of natural justice i.e. the rule of fair hearing. The Appellant cited Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and submits that failure to serve a party with hearing notice is a fundamental breach of his right to fair hearing and the party whose right is breached is entitled to have the proceedings set aside. He relied on the case of DARMA V. ECOBANK (2017) LPELR-41663(SC); A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436 and NNANAH V. USORO (2013) LPELR-20822(CA). The Appellant submits that in paragraph 5 of its affidavit, it deposed to the fact that it was never served with

hearing notice against 13th November, 2018, 17th January, 2019, 11th February, 2019, 25th February, 2019 and 14th March, 2019 respectively, when the trial Court sat over this matter (see P. 371-380 of the record of appeal). According to the Appellant, the 1st -3rd Respondents filed a counter-affidavit, annexed two Exhibits which are purported affidavit of service by the Bailiff, where he stated that he went to the firm of O.M Omale & Co., the Appellant’s Legal Adviser but met his absence and that he called the learned Counsel on phone to inform him about the hearing notice and in another breadth, the Bailiff stated that he served the Appellant through its Secretary in APC office Makurdi by leaving same in the premises of the Appellant (See Pages 403-414 of the Records of the Appeal). The Appellant avers that the purpose of affidavit of service is to convince the Court that the persons on whom the processes are to be served have been duly served as held in OKESUJI V. LAWAL (1991) LPELR-2447 (SC) and SENATOR LAWAL Y. GUMAU V. BARR IBRAHIM ZAILANI & ORS (2019) LPELR-47665(CA). The Appellant submits that the two people mentioned in the affidavit of

service (O. M. Omale, Esq., and Engr. Peter Akulaga) deposed to two separate affidavits contradicting the purported affidavit of service and Section 116 of the Evidence Act, 2011 provides that where there is a conflict between affidavits, the Court should call for oral evidence to resolve the issue, however, the trial Court failed to consider Section 116 and the further affidavit deposed to by O. M. Omale, Esq., and Engr. Peter Akulaga (See pages 415-419 of the Records of Appeal). The Appellant relied on the case of EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738(SC) 55-57; SENATOR AYO ADESEUN V. PEOPLES DEMOCRATIC PARTY & ANOR (2019) LPELR-47739 (CA) and GOLDEN SWAN NIGERIA V. UNICONTROL HANDLING SERVICES NIGERIA LIMITED (2018) LPELR-46558(CA) to show how the Courts resolves conflict in an affidavit of service and also urge the Court to adopt same.

The Appellant argued that Exhibit 1 is defective and the Court cannot rely on it because it did not state when the case was fixed neither did it state the date of the proceedings for which the purported hearing notice was served. Also, Exhibit 2 did not state the date of the proceedings for which it was

allegedly served and in Exhibit 3, the Bailiff deposed to the affidavit of service on 6th February, 2019 and in his handwriting effected that he served by leaving it at the office of the Appellant on 7th February, 2019. The Appellant submits that it is trite law that a party who tenders a document in a Court of Law cannot discredit or dissociate himself from a portion of the document and associate himself with the other portion (see P. 405-410 of the Record of the Appeal). The Appellant relied on ONWUDINJO V. DIMOBI (2006) 1 NWLR (PT. 961) 318 to submits that 1st – 3rd Respondents who tendered Exhibit 1 – 3 should therefore be bound by the document. The Appellant reproduced the ruling of the trial Court at pages 439-440 of the Record of Appeal and submits that there was no compliance with due process of Law which is condition precedent to the exercise of the Court’s jurisdiction as a result, the trial Court was divested of the jurisdiction to entertain, hear and determine the matter as it did on all the aforementioned dates. The Appellant cited Section 36 of the Constitution, Order 5, Rules 1(1) and (2) and Rules 2 (1) of the Benue State High Court (Civil Procedure) Rules, 2007

and the case of FIRST BANK OF NIGERIA V. T.S.A. LTD (2007) ALL FWLR (PT. 352) 1719 and AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PT. 504) 237.

Finally, the Appellant urge the Court to resolve this sole issue in favour of the Appellant and to allow the appeal.

1ST – 3RD RESPONDENTS BRIEF
ISSUE ONE AND TWO
The 1st – 3rd Respondents reproduced the holding of the trial Court after evaluating the evidence placed before it vide the affidavits and submitted that the Appellant’s case is that it was not served with hearing notice against the relevant dates that the matter came up for hearing, however, the 1st – 3rd Respondents avers that the Appellant was duly served against the relevant dates and this was settled when the lower Court held that the Appellant was duly served through its Secretary. The 1st – 3rd Respondents submits that the basis of this appeal is against the finding of the trial Court that the Appellant was duly served, however, the Appellant did not attacked that finding and which is deemed established and admitted by the Appellant. The Appellant

cited GAIYA & ANOR V. MABIN (2015) LPELR-40404 (CA) and PHILIP SHAGBA IGBADOO & ANOR V. KEYSTONE BANK LTD delivered on the 2nd day of July, 2018 CA/MK/54/2015. The 1st – 3rd Respondents asserts that the Court having found that there was service that should be the basis of the attack and the issue of jurisdiction which was indeed not determined and/or pronounced upon by the lower Court.

The 1st – 3rd Respondents contends that grounds 3, 4 and 5 did not attack the specific findings of the lower Court that the Appellant was duly served whether the Secretary denied service or not, the lower Court evaluated the evidence, which it accepted and there was no need to call for oral evidence to resolve any purported conflict in the affidavit. Also the Appellant states that ground 5 has been abandoned, there being no argument on the ground and it should be deemed abandoned and liable to be struck out. The 1st – 3rd Respondents urge the Court to dismiss the appeal. Continuing, the 1st – 3rd Respondents submits that where the findings of the lower Court is based on evidence, the Appellate Court should not set aside as held in

UZOECHI V. ONYENWE 8 (1999) LPELR-3455(SC). The 1st – 3rd Respondents submits that attached to the Counter-Affidavit are Exhibits showing that the Bailiff effected service and the Appellant did not show that the finding of the lower Court was perverse, therefore, they urge the Appellate Court not interfere with the finding. The 1st – 3rd Respondents avers that the proceedings of 13th November, 2019 has no adverse effect on the Appellant nor was any order obtained against it as the matter for that day was for mention and nothing more, relied on AKINRIMISI V. MAERKS NIGERIA LIMITED & ANOR (2013) LPELR-20179 (SC). The 1st – 3rd Respondents relied on SHELL PETROLEUM DEVELOPMENT COMPANY V. ESOWE (2009) ALL FWLR (PT. 467) 120 and Order 7 Rule 9 of the Benue State High Court (Civil Process) Rules, 2007 to submit that service of hearing must be effected personally or on a Counsel or on the Secretary in cases of Corporate bodies and in the instant case, when the matter was adjourned for pre-trial conference, the 1st-3rd Respondents’ Counsel ensured that hearing notices was effected on the Appellant as seen in paragraphs 7, 8, 9 and 10 of the

Affidavit of service (See pages 403-410 of the Records). The 1st – 3rd Respondents reproduced the holding of the trial Court to submit that the trial Judge was only stating the position of Law with regards to the party was served with hearing notice but deliberately, Appellant ignored the notice and absent himself from the Court as held in S & D CONSTRUCTION COMPANY LTD V. CHIEF BAYO AYOKU (2011) 6 SCNJ 268. According to the 1st – 3rd Respondents, the further affidavit of Engr. Peter Akulaga who admitted to be the Secretary of the Appellant did not deny being served but only stated that he did not decline or refused to receive hearing notice(s) from the bailiff which implied admitting service of the hearing notice. Furthermore, the 1st – 3rd Respondents contends that it is not in all situations where there is conflict in affidavit evidence that oral evidence shall be called to resolve same, where, as in the instant case there are documentary evidence with which any conflict could be resolved, there will be no need to call oral evidence, relying on OKADA AIRLINES LIMITED V. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2014) LPELR-23342(CA).

The 1st – 3rd Respondents urge the Court to discountenance the argument of the Appellant in this respect and dismiss the appeal.

APPELLANT’S REPLY BRIEF
The Appellant argued that the 1st – 3rd Respondents’ contention that the Appellant did not appeal against the findings of the trial Court on the alleged findings and it makes the findings binding on the Appellant, however, ground 2 of the notice of appeal sufficiently attacked the finding of the trial Court for those dates. It is trite that an appeal must be against the ratio decidendi and not just an obiter dicta, relied on DUKE V. EPHRAIM & ANOR (2009) LPELR-8064(CA) 13; SAUDE V. ABDULLAHI (1989) 4 NWLR (PT. 116) 387; OGUNBIYI V. ISHOLA (1996) 6 NWLR (PT. 452) 12 and COKER V. UNITED BANK FOR AFRICA PLC (1997) 2 NWLR (PT. 490) 641. The Appellant submits that the 1st – 3rd Respondents argued that the Appellant who was allegedly served with hearing notice for a specified date and did not appear in Court is not entitled to be served with hearing notices for subsequent dates and they relied on GBAGI & ANOR V. OKPOKO (2013) LPELR-20167 (CA), conversely, it is trite that

a party to a proceedings must be served with hearing notice at every stage of the proceedings as held inENGR. (CHIEF) M. N. OKOYE V. KEENLINE INVESTMENT LIMITED & ANOR (2015) LPELR-24377(CA); MAINSTREET BANK LIMITED V. ABDULRAHMAN YAU (2015) LPELR-24657 (CA) and AKINNIRAN V. ADE & ORS (2017) LPELR-42175(CA). The Appellant also submits that the record of appeal clearly shows that the last time the Appellant was in Court was on the 11th July, 2018 when the matter was referred to the Citizenship Mediation of the Ministry of Justice of Benue State, and the matter was subsequently adjourned to 28th September, 2018 (See P. 434 of the Records), however, the Court did not sit on the said 28th September, 2018 but on the 13th November, 2018 and was subsequently adjourned to 17th January, 2019 where it sat in chambers. The Appellant asserts that from the record of appeal particularly at pages 434-438, it is very clear that there was no service of hearing notice on the Appellant against 13th November, 2018 and if the proceedings of this day is set aside, every other proceedings after it must be set aside because they are predicated on the proceedings of 13th

November, 2018. Cited ACHUZIA V. OGBOMAH (2016) 11 NWLR (PT. 1522) 59 and OGUNDOYIN & ORS V. ADEYEMI (2001) LPELR-2335(SC). The Appellant argued that the 1st – 3rd Respondents’ reliance on the case of GBAGI V. OKPOKO (2013) LPELR-20167 (CA) is of no moment because the Courts in ENGR. (CHIEF) M. N. OKOYE V. KEENLINE INVESTMENT LIMITED & ANOR (SUPRA); MAINSTREET BANK LIMITED V. ABDULRAHMAN YAU (SUPRA) and AKINNIRAN V. ADE & ORS (SUPRA) have firmly settled that a party must be served with hearing notice in every proceedings, however, if the Court finds that these above decision do not represent the position of the law, then the Supreme Court holding in DARMA V. ECOBANK (2017) LPELR-41663(SC) 35-36 and A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436 already cited in the Appellant’s brief have settled the issue. The Appellant urge the Court to hold that the trial Court did not fulfill the requirement of proof of valid service of hearing notice before proceeding with the case.

The Appellant also argued that the 1st – 3rd Respondents contended that ground 3 of the grounds of appeal did not attack any specific finding of the

lower Court and therefore incompetent, on the contrary, ground 3 of the grounds of appeal has sufficiently attacked the finding of the trial Court contained at page 440 of the Record. The Appellant submits that the 1st – 3rd Respondents argued that contrary to ground 4 of the grounds of appeal, the trial Court having found that there was service of hearing notice on the Appellant need not order oral evidence, conversely, ground 4 is based on the affidavits filed by parties which consist of substantial conflicts in these affidavits which ordinarily would have prompted the trial Court to order oral evidence where the deponents of this affidavits would be subjected to cross-examination but the trial Court have failed to do so. The Appellant avers that the 1st – 3rd Respondent conceded that on 13th November, 2018, the Appellant nor his Counsel were in Court and that no hearing took place on the said dates, also, the 1st – 3rd Respondents states that having served the Appellant hearing notice for 11th January, 2019 against the hearing of 17th January, 2019 and 11th February, 2019 is presumed that the Appellant is aware of the subsequent dates of

hearing and they also relied on S & D CONSTRUCTON COMPANY LTD V. CHIEF BAYO AYOKU (2011) 6 SCNJ 268 which is not applicable to the present case. The Appellant submits that the parties to a case owe the Court the duty not to either mislead the Court or confuse the Court as held in ALHAJI ABDULLAHI ADAMU USMAN & ANOR V. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-45629 (CA). The Appellant reproduced paragraph 3 (iv) and (v) of the affidavit in support of the application which is contained at pages 418-419 of the record of appeal to show where the deponent denied that he was served with hearing notice as alleged by the 1st – 3rd Respondents. The Appellant avers that the 1st – 3rd Respondents argued that it is not in every conflict in an affidavit that would warrant the Court to call for oral evidence and cited OKADA AIRLINES LIMITED V. FAAN (2014) LPELR-23342 (CA) which is irrelevant to the case of the 1st – 3rd Respondents, however, the Appellant relied on COMMISSIONER OF POLICE BENUE STATE COMMAND & ORS V. DONALD IORSUE DOOLOR (2020) LPELR-50363 (CA) to submit that the trial Court ought to have ordered oral evidence to clarify the

contradictions in the various affidavits filed by the parties.

The Appellant urge the Court to discountenance the 1st – 3rd Respondents’ argument and allow this appeal.

RESOLUTION OF SOLE ISSUE
The Court shall adopt the sole issue distilled by the Appellant for resolution in this appeal:
Whether the learned trial Court ought to set aside the proceedings of 13th November, 2018; 17th January, 2019; 11th February, 2019; 25th February, 2019 and 14th March, 2019.

The crux of the appeal is that the trial Court declined an invitation to set aside the proceedings of certain dates as disclosed on the Notice Appeal. The complaint there was that there was no service of a Hearing Notice on the Appellant against the said dates. The Appellant firstly, alleged that the proceedings took place on the 13th November, 2018 when no hearing notice was served on it. Looking at the record and the ruling appealed against, there were earlier proceedings before which the Appellant was duly served but absented itself. The proceedings of the 13th November, 2018 are reflected on page 434 of the Record of Appeal. I shall reproduce the record of the said

proceedings anon:
“13: 11: 18
Parties absent
O.M Iyorkpo, Esq for the plaintiffs (A. M. Owunaesq with him M.M Ngorngor, Esq (S.O Ocheme, Esq with him) for the 2nd Defendant.
No appearance for the 1st Defendant.
Mr. Iyorkpo: we have failed to settle. We ask for a date for pretrial.
Mr. Ngorngor: No Objection
Court: 04: 12: 18 for pretrial.”

It is obvious that the trial Court did not take any decision on that day but the trial Court noted on record that the Appellant was not in Court. No proceedings on the substantive suit against the Appellant took place or was considered. Apart from adjourning for pretrial, nothing happened that could legally aggrieve the Appellant. This aspect of the appeal is misconceived and struck out.

On the next date listed, the 17th January, 2019, the record of the Court indicates no appearance for the Appellant and the Court below proceeded with the pretrial and issued a report in the absence of the Appellant. The Court did not note whether the Appellant was served or not. However, the counter-affidavit (pages 400-403 of the record of appeal) to the motion seeking to set aside

service indicated that the Appellant was served and no further affidavit was filed denying those facts. Furthermore, the record of the Court below also shows that the Counsel to the Appellant could not be served because his office was under lock and key therefore, the hearing notice meant for the Appellant was served on the Secretary of the Appellant, this was clearly exhibited at pages 407 of the record of appeal. The Secretary of the Appellant did not deny being served.

It is settled law that the way to challenge the affidavit of service is by the filing of an affidavit and paragraph 5j of the affidavit in support of the application (See Page 372 of the record of appeal) said the Appellant was not served with a hearing notice against the proceedings of 17th January, 2019. It said thus:
“j. That on the 17th day o January, 2019 when the matter came up for pre-trial proceedings, no hearing notice was served on the 1st Defendant.”

The 1st to 3rd Respondents then filed a counter affidavit and exhibited that bailiff’s affidavit to show service was effected on the Secretary of the Appellant. The said Secretary did not deny not

receiving the said service. The deponent to the Appellants affidavit in support of the motion was by a litigation clerk in the chambers of the Appellant’s Counsel in Abuja who also said he was informed by learned Counsel to the Appellant that there was no service of a Hearing Notice on the Appellant, however, the Court below found that there was proper service. The question to consider here is: Could service be effected on the Secretary of a political party? Every political party is duly registered under the Laws of this Country, particularly the Constitutional and Electoral Act, 2010. It therefore has the life of a registered company even though guided by different Rules, in this case, the Constitution and INEC guidelines. When service on Counsel fails, the standard practice is that the parties can be served personally. Here, the party is not a human being so cannot be personally served but an artificial person, and like companies, the standard practice was set in the case of KRAUS THOMPSON ORG LTD V UNICAL (2004) LPELR-1715(SC) thus:
“A corporate body in this context, either a company registered under the Companies and Allied Matters Act, 1990 or

a statutory corporation such as the respondent in this case, can only be served under the relevant rules of Court by giving the Writ of Summons or document to any director, trustee, secretary, or other principal officer of the corporate body to be served, or by leaving the same at its registered or Head office. See Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285.” Per MUSDAPHER, J.S.C.
And the case of OKOYE & ANOR V CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505(SC) wherein the apex Court held thus:
“… service may be effected on the company by registered post addressed to its principal office in the state or by delivery to the principal officer wherever he may be found in the state or by delivery at the company’s office in the state to one apparently in charge of such office provided further where the company has no office in the State, service shall be effected by registered post after due compliance with Sub-rule (2) of this Rule.” Per TOBI, J.S.C.

Generally, when service is done by a Court official, it should be acknowledged but here the official of the party served refused to acknowledge service but insisted that another

official should do so, well the affidavit of service has not been denied neither the fact of refusal to endorse. The Court will take that as proper service since the official to endorse was not in the office. The Court bailiff cannot sit idle in a Party’s office at the instructions of a political party Secretary. In the absence of a denial of service by the Secretary and the failure of the Appellant to challenge the finding of the trial Judge that the Appellant was served, the Court finds that for the proceedings of the 17th January, 2019, there was due service of a Hearing Notice on the Appellant. The complaint against the proceedings of the said date is untenable and is discountenanced.

Continuing, the Appellant contended that it was not served with a Hearing Notice before the proceedings of the 11th February, 2019, hearing of the case commenced on that day. Just like the previous date, the Secretary to the Appellant was duly served and refused to sign acknowledgment and told the process server that it was the legal adviser that will sign the acknowledgment. He was however given the process and the bailiff deposed to an affidavit of service which

was attached to the Counter-affidavit (page 403-410 of the record of appeal) and to which the Appellant did not deny. The Secretary did not also deny receiving the process. The Secretary is one of the persons that can receive such service, like in the case of the previous date, the Appellant was served. For the dates considered above there was proper service on the Appellant and the challenge to jurisdiction on the ground of failure to serve hearing notice on it is untenable and is discountenanced.

The Appellant still mentioned the 25th February, 2019 alleging it was not served with a hearing Notice. Looking at the record of appeal at page 382 of the record, the Court observed that the Appellant was not represented by a Counsel. The affidavits of service as effected by the bailiff did not include one for the continuation of hearing on the 25th February, 2019 when PW2 was taken. There is indeed a problem here. The law is that when a party was absence from Court, the previous day when proceedings were conducted, he should be served with a Hearing Notice before the next date. The Appellant was not in Court on the 11th February, 2019 when hearing commenced and

therefore the Appellant should have been served against the next date being the 25th February, 2019. See ACHUZIA V. OGBOMAH (2016) LPELR-40050(SC) wherein the apex Court held thus:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous adjourned date. Whenever proceedings in a case or matter resumes and a party or his counsel is absent, the Court must ascertain whether or not the party absent was aware that the case was coming up on that resumed sitting day. It is not a matter of assumption. Rather, it must be inquired into in open Court and if it became apparent that the party absent was not notified of that day, the Court must adjourn the matter for him/it to appear. See Sunday Melake Rex vs Chief Emmanuel Eyo lnang (2003) FWLR (pt. 170) 1469 at 1489 Adebayo Ogundoyin & 2 Ors vs David Adeyemi (2001) FWLR (pt 71) 1741 at 1755.” Per SANUSI, J.S.C.
And the case of IMMINENT NIGERIA COMPANY V. PRUDCENTIAL CO-OPERATIVE MICRO-FINANCE BANK (NIG) LTD (2014) LPELR-22700(CA) wherein the Court held thus:

“I have stated earlier that where parties were absent and repeatedly so, when the Court adjourns a case to a new date for hearing, the Court, in order to afford the party the opportunity to appear and be heard, to order for the issuance and service of hearing notice to such a party for the adjournment made in his absence.” Per GARBA, J.C.A.

Obimonure vs Enrinosho & Anor (1966) All NLR 245 at 247. The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor vs Sekondy Ukey (1981) 1 SC 6 wherein this Court held thus:- “The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice”. What I am trying to say in effect is that when there came about that failure to serve notice of the date of hearing on the Appellant, it means that the requirement of fair hearing has not been observed and the resultant decision that followed is a nullity and cannot be allowed to stand. See Wema Bank Nigeria Limited & Ors vs S. O. Odulaja & Ors (2000) FWLR (pt. 17) 138 at 142 – 143; A. C. B. Plc vs Losada Nig. & Anor (1995) 7 SCNJ 158 at 167.” Per PETER-ODILI, J.S.C.
And the case of NUT TARABA STATE & ORS V. HABU & ORS (2018) LPELR-44057 (SC) where the apex Court held thus:

“… Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution. The consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void. See: Obimonure Vs Erinosho (1966) 1 ANLR 250; Skenconsult (Nig) Ltd. Vs Sekondy Ukey (1981) 1 SC 6; Wema Bank Nig. Ltd Vs Odulaja (2000) FWLR (Pt.17) 138 @ 142-143 A-C; A.C.B. Plc Vs Losada Nig. & Anor. (1995) 7 SCNJ 158 @ 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the 1st and 6th appellants’ right to fair hearing.” Per KEKERE-EKUN, J.S.C.
Serving a Hearing Notice is not a mere procedural issue but fundamental and substantive, it goes to the competence of the Court as have been so stated in the case ofLEEDO PRESIDENTIAL MOTEL LTD V. BANK OF THE NORTH LTD ANOR (1998) LPELR-1775(SC) wherein the apex Court held thus:
“Where a party is entitled to notice of a proceeding and there

is failure to serve him, the failure is a fundamental defect which goes to the root of the competence (or jurisdiction) of the Court to deal with the matter. See: Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6, 27 where the dictum of Lord Greene, M.R. in Craig v. Kanseen (1943) KB 256 at pp. 262263; (1943) 1 ALL ER 108, 113 was cited with approval, Lord Greene has said: “The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex-parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental

vice, is an argument which, in my opinion, cannot be sustained.” As Nnamani, JSC rightly pointed out in Skenconsult, (supra), the above is also the attitude of Nigerian Courts on the issue of proper procedure. The learned Justice of the Supreme Court, said at p. 26 of the report: “The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.” Per OGUNDARE, J.S.C.
And the case of DARMA V. ECO BANK (2017) LPELR-41663(SC) wherein the Supreme Court held thus:
“The well laid down position of the law is that failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. See Obimonure v Erinosho (1966) 1 ANLR P.250 Haruna v Ladeinde (1987) 4 NWLR (Pt.67) P.941. Was Hearing Notice served on the defendant for the

hearing of the case on 19 June, 2001? Hearing Notice is a document that emanates from the Registry of a Court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served Hearing Notice, they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court, he does so at his own peril.” Per RHODES-VIVOUR, J.S.C.
The effect of the failure to serve divest the Court of jurisdiction and the proceedings of such a date must be set aside for breaching the right to fair hearing. See OVUNWO & ANOR V. WOKO & ORS (2011) LPELR-2841(SC) where the Apex Court held thus:
“The point must be made that a breach of fair hearing once substantive in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof. Once it is showed as it has been showed here that the decision of the appellate High Court has been vitiated for breaching the appellants’ right to fair hearing it follows naturally without more that the lower Court’s resolution of issue 1(one) cannot stand and so the whole decision

collapses with it as it has no leg on which to stand. This is so as fair hearing is a fundamental constitutional right as entrenched in the 1999 Constitution as amended. And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety; it renders the entire proceedings null and void. See: Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.496) 675 at 708 per Iguh JSC.” Per CHUKWUMA-ENEH, J.S.C.
And PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR-42563(SC) where the Superior Court held thus:
“Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J., in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NWLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALIU v. TAIWO EGEIBON (1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court

contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS (1993) 2 SCNJ 90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ 57; (1987) 2 NWLR (Pt.58) 587.” Per EKO, J.S.C.

Neither the 1st – 3rd Respondents nor the Bailiff deposed to the fact that the Appellant was served against that date and proof of service as observed earlier is by way of an affidavit there is none on record. See NDAYAKO & ORS V. DANTORO & ORS (2004) LPELR-1968 (SC) where the Supreme Court held thus:
“Under normal circumstance the best evidence of proof of service of process is by affidavit of service. It is not disputed that there was such document in the Court’s file. That document forms part of the Court’s record which the Court could look at to confirm that there was proof of service even if it was not tendered as an exhibit. See Chief M.O.A Agbaisi and Ors. v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630, 648; Ade v. Uku (1977) 5 FCA 218 at 228; Ogbunyiya v. Okudo and Ors (1979) 6-9 SC 32, (1979) 3 LRN 318 at 3-4; Ladunni v. Kukoyi (1972) All NLR (Pt. 1) 133; Salami & Ors v. Oke (1987) 4 NWLR (Pt. 63) 1 at 9, (1987) 2 NSCC 1167 at 1173; U.T.C.(Nig.) Ltd. v. Pamotei (1989) 3 SCNJ 79 at 97, (1989) 2 NWLR (Pt. 103) 244.” Per EDOZIE, J.S.C.

And the case of IDISI V. ECODRIL (NIG) & ORS (2016) LPELR-40438 (SC) wherein the apex Court held thus:
“Evidence of proof of service is where a bailiff deposes to an affidavit to that effect. … The law is trite and well settled that when a question of service is in issue, it automatically touches on the jurisdiction of a Court which must be satisfied on the proof thereof.” Per OGUNBIYI, J.S.C.
In the absence of an affidavit by the Bailiff that he served the Appellant against the 25th February, 2019 when PW2 was taken means there is no evidence of service of a hearing Notice. It is trite that Judges have been enjoined to ensure there is proof of service of a hearing Notice which they must verify particularly where a party is absent from the proceedings on the last adjourned date, the Court should have ordered service of the hearing Notice on the Appellant after the proceedings of the 11th February, 2019. That simple little act of diligence will save the time of the Court and resources for the parties because any such proceedings no matter how well conducted must be set aside. See the case of IYOHO V. EFFIONG & ANOR (2007) LPELR-1580(SC) wherein the apex Court held:

“…a party not served with the hearing date of proceedings leading to a judgment is entitled ex-debito justitiae to have the proceedings set aside as a nullity. See Skenconsult (Nig.) Ltd. & Anor. v. Godwin Sekondy Ukey (1981) 1 SC 4 at 14 & 15; Craig v. Kanssen (1943) KB 256 at 262 – 263 and White v. Weston (1968) 2 All ER 824 at 846.” Per OGUNTADE, J.S.C.
Failure to serve a party also divest the Court of jurisdiction as held in the ENL CONSORTIUM LTD V. SHAMBILAT SHELTER (NIG) LTD (2018) LPELR-43902(SC) thus:
“Serving of hearing notice on the Appellant is a pre-condition to the exercise of jurisdiction of the Court below as it is basic to the invocation of jurisdiction of the Court. The flip side of the coin is that non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made thereby against the party who should have been served with the hearing notice becomes null and void. I rely on Otabaimere v. Akporehe (2004) 14 NWLR (Pt.894) 591 at 614; FBN PLC v. TSA Ind. Ltd (2015) 11 NWLR (Pt.1470) 346 at 357; Guda v Kitta (1999) 12 NWLR (Pt.629) 21.” Per PETER-ODILI, J.S.C.

Also the case of ACHUZIA V. OGBOMAH (SUPRA) where the Court held thus:
“A Court of law must satisfy itself that all parties had notice of hearing of a matter before it assumes jurisdiction to hear and determine the case. Failure to do so renders the entire proceedings a nullity. See Skenconsult Nig Ltd & Anor vs Ukey (supra).” Per OKORO, J.S.C.

7 SCM 165; (2009) 12 NWLR (pt 1156) 435.” Per ARIWOOLA, J.S.C.
And the case of MUSACONI LIMITED V. ASPINALL (2013) LPELR-20745 (SC) where the Supreme Court held thus:
“Jurisdiction, it is settled, is fundamental to adjudication. It is a radical and crucial necessity for, as in the instant case, where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nulity ab initio however well conducted the proceedings and brilliantly decided, the issues agitated therein are. See Oloriode V. Oyebi (1984) 5 SC 1 at 32 – 33, Mustapha V. Governor of Lagos State and Musaconi Limited V. Mr. H, Aspinall (2013) LPELR 20745 (SC). It must be restated that a Court is only vested with jurisdiction and power to adjudicate on an issue when the matter is brought before it in accordance with both substantive and adjectival law. See Madukolu V. Nkemdilim (1962) SCNLR 341, Ukwu V. Bunge (1997) 8 NWLR (Pt 518) 527.” Per MUHAMMAD, J.S.C.
Also see the case ofSHITTA-BEY V. A.G. FEDERATION & ANOR (1998) LPELR-3055(SC) where Per ONU, J.S.C. held thus:
“…stressing the importance of jurisdiction, Bello CJN said in

Utih & Ors v. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166:- “Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
Therefore any proceeding conducted without jurisdiction is a nullity. Consequently, the proceeding of the 25th February, 2019 and all subsequent dates up to judgment are a nullity and are hereby set aside. However, all the proceedings before that day are valid and are sustained. To avoid any further delay and injustice, the suit is returned to the trial Judge who handled it to continue from the proceedings of 11th February, 2019 and conclude the trial.

The appeal partially succeeds and the ruling of the trial Judge, HON. JUSTICE S.O. ITODO delivered on the 19th day of June, 2019 is sustained in part.

The suit is returned to the trial Court Judge, HON. JUSTICE S.O. ITODO for continuation of hearing. I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Hon. Justice Y.B. Nimpar, JCA and I am in complete agreement with his reasoning and conclusion that the appeal partially succeeds.

In the instant case, one of the reasons advanced by the Defendant/Appellant in her application in the lower Court and the supporting affidavit was that the Hearing Notice was not properly served on her to notify her of the hearing dates of the matter which is a fundamental reason why the Court below ought to set aside the decision or proceedings conducted on the 13th November, 2018 to 14th March, 2019 wherein the Plaintiffs/Respondents (now Respondents) called two witnesses (PW1 and PW2) in the absence of the Defendant/Applicant (now Appellant) whereby his right of fair hearing was breached by the Lower Court.

The issue of service of Hearing Notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice, for it is the service of Hearing Notice that confers on the Court the jurisdictional competence to entertain the matter before it. Thus where a matter is adjourned to a date

other than the date the parties had previous notice of hearing, the Court has a duty to notify them of the subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should have been aware of the subsequent hearing dates. See Obimonure vs. Erinosho (1966) 1 ANLR 250; Wema Bank Nig. Ltd. vs. Odulaja (2000) FWLR (Pt. 17) 138 at pp.142-143. See also Compact Manifold & Energy Services Limited vs. Pazan Services Nigeria (2019) LPELR-49221 (SC) per Galinje, JSC at pages 18-19, paras. C.A.
The Apex Court also held in The Nigeria Union of Teachers Taraba State & Ors. vs. Rev. Sarduana Habu (2018) LPELR-44057 (SC) per Kekere-Ekun, JSC at pages 15-16, paras. C-B that:-
“l am also satisfied from the record that the Hearing Notice meant for service on the 1st and 6th Respondents at the Court below, now Appellants was erroneously served on one E.N. Chia, Esq., who had appeared for the Appellants (now Respondents). In other words, there was no proof of service of the Hearing Notice for the proceedings of 25th November, 2004 on the 1st and 6th

Appellants. Failure to serve Hearing Notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution. The consequence of such failure is that the Court jurisdiction to entertain the proceedings, which are thereby rendered null and void. See Obimonure vs. Erinosho (1966) 1 ANLR 250; Skenconsult (Nig.) Ltd. vs. Sekondy Ukey (1981) 1 SC 6; Wema Bank Nig. Ltd. vs. Odulaja (2000) FWLR (Pt.17) 138 at 142-143 A-C; A.C.B. Plc vs. Losada Nig. & Anor (1995) 7 SCNJ 158 at 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the 1st and 6th Appellants’ right to fair hearing.”

The position of the law is trite that unless and until the Court has pronounced a decision of the Court upon the merits or by consent, it has the inherent powers to set aside its decision where there has been a fundamental defect in the proceedings such as where the Court lacked the jurisdiction as in this case to entertain the Suit in the absence of

service on the Defendant/Appellant herein. See Alapa vs. Sanni & Ors (1967) NMLR 397; Hope Democratic Party vs. Obi & Ors (2011) LPELR-9095 (CA) pp.29- 30 paragraph A; Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; A.C.B. Plc vs. Losada (Nig.) Ltd. (1995) 7; Ezeokafor vs. Ezeilo (1999) 6 SCNJ 209 at 225; Ugwu & Ors. vs. Aba & Ors. (supra) and U.T.C. vs. Pamotei (1989) 2 NWLR (Pt. 103) 244.
The rationale behind this stance of the Courts is that in normal trials of actions where evidence is given by parties and their legal representatives proffer arguments both on the issues of facts and law as joined by them culminating in a decision being rendered by a trial Court, such a decision is final and the Court is not seised of any powers ordinarily to set aside its decision since the trial Judge has become functus officio.
In the instant case, since it is clear from the records that the Appellant was not served with Hearing Notice for the proceedings of 25th February, 2019, I agree that the proceedings of that day and subsequent days in the absence of the Appellant were/are a nullity since the Appellant’s right to fair hearing was violated.

In the light of the above, I also agree that the said proceedings of 25th February, 2019 be set aside along with those of other subsequent days where the Appellant could not participate in the hearing because of non-service of Hearing Notice. For the above reasons and the fuller reasons offered by my learned brother in the lead judgment and the plethora of authorities cited and relied upon which I adopt as mine, I shall also order that the parties return back to the learned trial Judge who handled the case for completion of hearing. I abide by the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother NIMPAR, JCA and I agree with the reasoning and conclusions reached therein.
The appeal succeeds in part.
I abide by the consequential order as made in the leading judgment.

Appearances:

O.M. OMALE For Appellant(s)

A.O. ATUBU – for 1st – 3rd Respondent
M.M. NGORNGOR – for 4th Respondent For Respondent(s)