Legalpedia Citation: (2024-03) Legalpedia 84446 (CA)

In the Court of Appeal

Holden At KADUNA

Thu Mar 21, 2024

Suit Number: CA/K/196/CM/2023(R)

CORAM

Onyekachi Aja Otisi Justice

James Gambo Abundaga Justice

Muslim Sule Hassan Justice

PARTIES

1. ALH. SHEHU ABDULRASHEEN
2. RABIU SHEHU
3. JAFARU YUSUF
4. ALH. HASSAN PATI
5. IRO JIBRIL
6. ALH. NAFIU

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Applicants complained they were not served with the processes of the Court, and that the appeal was heard and determined without notice to them, until judgment was pronounced against them.

This Court had granted an order for substituted service on some of the Applicants, but even the terms of the order for substituted service were not complied with by the bailiffs of this Court. As a result of the failure to comply with the order of this Court, the Applicants were all not served with any hearing notice.

The Applicants prayed for an order extending time within which the applicants shall seek for an order setting aside this Court’s proceedings, an order extending the time within which the applicants shall seek for an order setting aside this Court’s judgment delivered on the 6th day of April, 2023 in this appeal, and an order setting aside this Court’s proceedings and orders of 09/03/2022, 10/05/2022, 30/05/2023, 30/01/2023 in this appeal on grounds of misrepresentation, fraud and lack of jurisdiction.

HELD

Application granted

ISSUES

Whether this application has merit and ought to be granted having due regards to the facts deposed in the applicants’ affidavit in support?

RATIONES DECIDENDI

AFFIDAVITS – WHERE AVERMENTS IN AN AFFIDAVIT ARE UNCHALLENGED

It is trite that where averments in an affidavit are not challenged or refuted by a counter affidavit, the depositions therein are deemed admitted by the Respondent and can be accepted by the Court as representing the true position; Honda Place Ltd v. Globe Motor Holdings (Nig) Ltd (2005) LPELR-3180(SC); Ogoejeofo v. Ogoejeofo (2006) LPELR-2308(SC); Akiti v. Oyekunle (2018) LPELR-43721(SC); Mato v. Hember & Ors (2017) LPELR-42765(SC). The Court can therefore act on the unchallenged depositions.

In addition to the unchallenged depositions, there are also documentary evidence that were exhibited by the Applicants in support of their application, and which have not been countered or revealed to be incorrect or unreliable. The Court is also entitled to act on the facts exposed or revealed by these exhibits. – Per O. A. Otisi, JCA

SERVICE – IMPORTANCE OF SERVICE OF HEARING NOTICE – HOW TO ESTABLISH FAILURE OF SERVICE OF HEARING NOTICE

Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice. It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him, under the principle of audi alterem partem, which is one of the legs of natural justice. Fair hearing demands that each party in a dispute is given opportunity to be heard; Ntukidem & Ors v. Oko & Ors (1986) LPELR-2075(SC); INEC v. Musa (2003) LPELR-24927(SC).

It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Therefore, 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 entertain the matter; Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC.6; Leedo Presidential Motel Ltd v. Bank of The North Ltd & Anor (1998) LPELR-1775(SC); Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC); Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC).

The failure to serve a party with hearing notice must be evident from the records of the Court. It cannot be construed outside the facts. The party alleging a breach of fair hearing must show clearly that the said right is violated or breached; Carnation Registrars Ltd v. President of the NICN & Anor (2023) LPELR-60102(SC). It is now to see if the assertions of the Applicants are borne out by the records of the Court. – Per O. A. Otisi, JCA

SERVICE – THE PERSON WHO BEARS THE RESPONSIBILITY FOR SERVICE OF HEARING NOTICE – WHERE A PARTY WHO WAS NOT AFFORDED THE OPPORTUNITY TO BE HEARD IS AFFECTED BY AN ORDER OF COURT

The responsibility to serve hearing notices lies on the Court bailiff. Where the Court bailiff, in error or otherwise, misapprehends the terms of a Court order for substituted service, the litigant or the adverse party will not be held liable and punished for that error by the Court official; Akande v. Jegede & Ors (2022) LPELR-58911(SC); Abioye v. Ismail & Ors (2023) LPELR-59828(SC).

 

If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside; FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v Osiyi (2017) LPELR-42471(SC); Achuzia v Ogbomah (2016) LPELR-40050(SC). – Per O. A. Otisi, JCA

PARTIES – WHERE A PARTY WHO IS ENTITLED TO BE GIVEN AN OPPORTUNITY TO BE HEARD IS DENIED THAT OPPORTUNITY

It is settled that 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 are null and void for breaching the rule of natural justice: – PDP & Ors V. Ezeonwuka & Anor (2017) LPELR-42563 (SC) Pp. 102-103 Paras B-E. See also Arije V. Arije & Ors (2018) LPELR-44193 (SC) Pp. 19-20 Paras A-F, Ukpai V. Okoro (1983) LPELR-3347 (SC) Pp. 35-36 Paras E-D. – Per J. G. Abundaga, JCA

SERVICE OF HEARING NOTICE – THE OBJECT OF SERVICE OF HEARING NOTICE

The object of service of hearing notice is to give notice of proceedings on all the parties in the matter so that they are not taken by surprise and so that they can prepare their case. It is trite law that service of hearing notice on the parties in a suit is a condition precedent to the exercise of jurisdiction by the Court.

Therefore, failure to serve Court processes is a fundamental omission which renders such proceedings void. This is because such omission robs the Court of the jurisdiction to entertain the matter. See National Bank of (Nig.) Ltd v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284) 643 SC. – Per M. S. Hassan, JCA

CASES CITED

STATUTES REFERRED TO

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