Legalpedia Citation: (2023-08) Legalpedia 21583 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Aug 18, 2023

Suit Number: CA/EP/GN/AK/02/2023

CORAM

Muhammed Lawal Shuaibu JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Abdul-Azeez Waziri JCA

PARTIES

1. ARC EZEKIEL NYA-ETOK
2. HON. UDOMAH JAMES UDUAK
3. AFRICAN DEMOCRATIC CONGRESS

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PASTOR UMO BASSEY ENO
3. PEOPLES DEMOCRATIC PARTY
4. BASSEY ALBERT AKPAN
5. YOUNG PROGRESSIVE PARTY
6. AKAN UDOFIA
7. ALL PROGRESSIVE CONGRESS
8. SENATOR JOHN JAMES AKPAN UDO-EDEHE
9. NEW NIGERA PEOPLES PARTY
10. UDUAK UDOH

11 LABOUR PARTY

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

On the 12th day of June, 2023 when Petition No: EPT/AKW/04/2023 came up for hearing, the Tribunal asked the Appellants' counsel if the provision of Paragraph 2 of the First Schedule to the Electoral Act, 2022 was fully complied with and when counsel could not proffer convincing reason, the secretary to the Tribunal was invited to clarify the issue of security for cost. And after confirming that the petitioners paid only one Million Naira, the tribunal invited the respective counsel to address it on the issue which they did. In a bench ruling, the Tribunal held that “…as it is, there is no petition before us to proceed with” and dismissed the Petition. ​The Appellants were dissatisfied and hence filed the instant appeal.

HELD

Appeal allowed

ISSUES

Whether or not the trial Court (Tribunal) was right when it dismissed Petition No: EPT/AKW/GOV/04/2023 on the sole ground of inadequate payment of security for cost?

RATIONES DECIDENDI

SERVICE – WHERE A PARTY TAKES FURTHER STEPS AND ALLOWS THE PROCEEDINGS TO GO ON WHEN THERE IS IMPROPER SERVICE

The law is settled that the effect of non-service of process where service is required is that the Court is deprived or divested of its competence and jurisdiction to entertain the case or matter. The reason is not farfetched, that a case must be properly initiated to confer jurisdiction on the Court, otherwise the proceedings are nullity. See MADUKOLU V. NKEMDILIM (1962); ALL NLR 587 AT 594. ​It is instructive to note however that a party waives such right if he takes further steps and allows the proceedings to go on as if such rights or privilege never existed. See ARIORI V. ELEMO (1983) 1 SCNLR 1. In the famous case of ODUA V. TALABI (1997) 1 NWLR (PRT 170) 76, it was held that even where there is improper service a defendant who takes further steps and participated in the proceedings, cannot complain of the improper service, for he would be deemed to have waived his right. In effect, once he is in Court or is represented in Court, the Court will deem that he had been served and is aware. See also S.G.N V. ADEWUMI (2009) 10 NWLR (PRT 829) 526. – Per M. L. Shuaibu, JCA

SECURITY FOR COST – EFFECT OF NON-PAYMENT OF SECURITY FOR COST

Be that as it may, paragraph 2 (1) of the First Schedule to the Electoral Act 2022 provides that at the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent. Sub paragraph (4) thereof, explicitly states that non-payment of security for cost shall stall further proceedings on the petition. Furthermore, paragraph 3 of the Election Judicial Proceedings Practice Directions, 2023 makes provisions for deposit of N500,000.00 by the petitioner to the tribunal or Court as security for cost pursuant to paragraph 2 of the First Schedule to the Electoral Act, 2022 aforesaid. Again, the petitioner shall also deposit an additional N500,000.00 to make up for the cost of service of notices, registered postings and any other expenditures which may be occasioned by the petitioner. – Per M. L. Shuaibu, JCA

SECURITY FOR COST – EFFECT OF NON-COMPLIANCE WITH PAYMENT OF SECURITY FOR COST

In both the cases of EMESIM V. NWACHUKWU (1993) 3 NWLR (PRT 596) 590 AND OBIEKWE V. OBI (2005) 10 NWLR (PRT 932) 60, the issue in contention before this Court was failure to pay requisite filing fees for election petition wherein, it was held that same is not a mere irregularity which can be cured. The cases that are on all fours with the present case are that of BIYU V. IBRAHIM (2006) 8 NWLR (PRT 981)1 AT 50 AND NWAWUBA & ANOR V. OKAFOR & ORS (2015) (supra) where the Court emphatically held that where the non-compliance related only to payment of security for costs, that is considered as an irregularity which could be cured.

​I therefore have no hesitation but to subscribe to the above view based upon the clear and unambiguous provisions of paragraph 2 (4) of the First Schedule to the Electoral Act, 2022, which provides that the non-compliance therein merely stall further proceedings on the election. This implicitly means that on the discovering of non-payment and/or insufficient payment of security for costs, the proceedings is temporarily suspended until same is paid or until the Tribunal orders otherwise. – Per M. L. Shuaibu, JCA

SERVICE OF NOTICE OF APPEAL – VALIDITY OF SERVICE OF NOTICE OF APPEAL ON COUNSEL TO A RESPONDENT

It is correct that, in circumstances similar to those existing in the present case, the Supreme Court, interpreting the provision of its Rules on service of notice of appeal, Order 2 Rule 3(1) of its 2014 Rules and which provision is very similar to Order 2 Rule 1(a) of the Court of Appeal Rules 2021, held by a split decision in the case of Odey Vs Alaga (2021) 13 NWLR (Pt 1792) 1 that such service of the notice of appeal on the counsel to a respondent did not constitute proper service of the notice of appeal and that as such the appeal, in respect of which the parties had already filed briefs of arguments, as in the present case, was incompetent. It is this decision that has fuelled the preliminary objection of the nature filed by Counsel to the second Respondent and Counsel to the third Respondent in this case.

​This decision, however no longer represents the position of the law. The Supreme Court departed from it in its judgment in the case of Attorney General of the Federation Vs Princewill Ugonna Anuebunwa (2022) 14 NWLR (Pt 1850) 265 and held that service of the notice of appeal on the Counsel to a respondent in the circumstances as in the present case qualified as proper service of the notice of appeal within the meaning of the provision of Order 2 Rule 3(1) of the Supreme Court Rules 2014. Expounding further on this new stance of the Supreme Court on the point, my Noble Lord, Agim JSC, in the unreported decision in Appeal No SC/911/2017 – Rotimi Amaechi Vs Governor of Rivers State delivered on the 27th of May, 2022, stated at pages 14 to 18 thus:

“The generally established practice in appeals is that the address given by a party in the proceedings at the lower Court is endorsed on the Notice of Appeal against the decision in those proceedings as his address for service and the notice of appeal and processes in the appeal may be served on the party at such address until the party files a notice of his new address or service in the appeal.

This appeal is a continuation of the proceedings in this case, with the proceedings commenced in the trial High Court, through the Court of Appeal to this Court. The address of the party’s legal practitioner at the lower Court at which processes were served on the party was endorsed as his address for service on the notice of appeal against a decision of the lower Court in the proceedings and remains his address for service until the legal practitioner notifies the Registrar of this Court that he has ceased to be instructed by him for the purpose of the proceedings.

It is noteworthy that the lack of unanimity in the decision of this Court in Alaga v Odey was in respect of only the question of whether the service of the notice of appeal on the respondent through the address of his counsel at the Court of Appeal endorsed in the notice of appeal as the address for the service and whether the Court ordered substituted service of the notice of appeal on the respondent by newspaper publication was an effective service of the notice of appeal. The split decision did not extend to the validity of the endorsement of the address of its counsel at the lower Court in the notice of appeal as the address for service on the respondent.

In the light of the foregoing, the objection that the notice of appeal was not endorsed with the address for service on the 1st respondent is dismissed. Let me now consider the arguments that the respondents were not personally served with the notice of this appeal and that therefore this appeal is incompetent.

It is not in dispute that the notice of this appeal was served on the respondents through the law office address of their respective lawyers at the Court of Appeal, which addresses were endorsed on the notice of appeal as the address for service on each of them. So, the notice was not served on them personally. It is noteworthy that the same lawyers that represented them at the Court of Appeal and whose addresses were endorsed in the notice of appeal as address for service of the respective respondents, still represent the respective respondents in this appeal. None of them filed any notice stating that the respondent he represented in the Court of Appeal, and is still representing in this appeal, has ceased to instruct him for the purpose of this appeal. Each respondent has filed a brief of arguments raising issues for determination distilled from the grounds of appeal in the notice of appeal and arguing the merits of the appeal, while raising and arguing therein the preliminary objection to the appeal.

In the light of the foregoing, I am satisfied that the notice of this appeal, though not served on the respondents personally, has been communicated to them by serving it on their respective Counsel at the address for service endorsed in the notice of appeal. Even though Order 2 Rule 3(1) of the Supreme Court Rules 2014 require that a notice of appeal be served on the respondent personally, the proviso to that Rule provides that if the Court is satisfied that a notice, served at the law office address of the respondent’s legal practitioner indicated in the notice of appeal as the address for service on the respondent, has been communicated to the respondent, no objection shall lie on the ground only that the notice of appeal was not served personally. It is implicit in this proviso that the service of the notice of appeal at the law office address of the respondent’s counsel at the lower Court indicated in the notice of appeal as the respondent’s address for service would be deemed sufficient service on the respondent, if the Court is satisfied that the notice has been communicated to the respondent. This Court in Attorney General of the Federation v Princewill Ugonna Anuebunwa … had departed from our decision in Odey v Alaga and applied the Proviso to Order 2 Rule 3(1) of the Supreme Court Rules 2014 in exactly similar circumstances and held that since the facts show that the notice of appeal was sewed on the respondent’s counsel at the lower Court at the address indicated in the notice of appeal as the address for service on the respondent and that the respondent had been communicated that notice of appeal and it had filed its brief of appeal, the notice of appeal was sufficiently served on him.

In the light of the foregoing,I hold that the notice of appeal was sufficiently and validly served on the respondents through the law office address of their respective legal practitioners indicated in the notice of appeal as each respondent’s address for service. The objection that the notice of appeal was not served on each respondent personally is dismissed.”

​The principle of stare decisis makes it incumbent on this Court to follow these latter decisions of the Supreme Court in interpreting and giving effect to the provision of Order 2 Rule 1(a) of the Court of Appeal Rules 2021. The necessary outcome of interpretation of Order 2 Rule 1(a) of the Court of Appeal Rules 2021 in the light of the above decisions is that the service of the notice of appeal in this appeal on the second Respondent and on the third Respondent through their respective Counsel, constitutes adequate service of the notice of appeal, in the circumstances of this case, within the provision of Order 2 Rule 1 (a) of the Court of Appeal Rules 2021. – Per H. A. O. Abiru, JCA

CASES CITED

STATUTES REFERRED TO

1. Electoral Act, 2022
2. Electoral Judicial proceedings practice directions, 2023
3. Court of Appeal Rules, 2021
4. Supreme Court Rules, 2014

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