FIRST CITY MONUMENT BANK V. HYDROWORKS LTD & ANOR
March 20, 2025GRIER HOUSE ESTATES LTD V NICON TRUSTEES LTD & 2ORS
March 20, 2025Legalpedia Citation: (2022-12) Legalpedia 26397 (CA)
In the Court of Appeal
Holden at Port Harcourt
Thu Dec 15, 2022
Suit Number: CA/PH/521/2022
CORAM
MUHAMMED LAWAL SHUAIBU JUSTICE OF THE COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE OF THE COURT OF APPEAL
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO JUSTICE OF THE COURT OF APPEAL
PARTIES
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) APPELANT(S)
APPELLANTS
1. GEORGE ORLU
2. UEBARI FUBARA OKO
3. SARO JACOB IGEBEGHE
4. HENRY N. KPUNEE
5. AKEERE PROMOTER LEDEE
6. OKOCHA EMMANUEL M. (For Themselves And Representing Four Hundred “400” Other Members Of The 1st Defendant Unlawfully Excluded)
7. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)
RESPONDENTS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
This is an appeal against the judgment of the Federal High Court sitting at Port Harcourt. The 1st to 6th Respondents as plaintiffs commenced an action against the Appellant seeking to determine whether the Plaintiffs are entitled to be given Nomination Forms and allowed to participate in the 1st Defendant’s congresses in Rivers State having made payment to so do, and whether the exclusion of the plaintiffs from the 1st Defendant’s ward and Local Government Congresses is constitutional democratic in accordance with All Progressive Congress Constitution and the Electoral Act. Upon the resolution of the above, the plaintiffs sought for an order of perpetual injunction restraining the Appellant from recognizing, acting on or accepting the result of the said Congresses of the 1st Defendant now the 7th Respondent, as well as recognizing or acting upon the Rivers State primary elections of 7th Respondent based on the said Congresses. In the course of proceedings, the trial Court heard the Originating Summons along with the motion for Joinder and Preliminary Objection by the 7th Respondent, the trial Court dismissed the motion for joinder and proceeded to grant all the reliefs sought in the Originating Summons. Being dissatisfied with the judgment of the trial Court, the Appellant has appealed to this Court.
HELD
Appeal allowed
ISSUES
1. Whether the trial Court was right to hold that the Appellant was aware of the date of the matter proceeded to hearing and judgment was entered despite the fact that no hearing notices was served on the Appellant?
2. Whether from the material facts available in the records, the trial came to a right decision when it held at page 1348 Vol. 2 of the record that the Appellant was duly served but did not contest the suit and was not represented by counsel?
3. Whether in view of the fact that the Appellant was deprived the right of fair hearing by the trial Court, the Court still has jurisdiction to enter judgment against it, granting various reliefs/injunction against the Appellant?
RATIONES DECIDENDI
FAIR HEARING – THE POSITION OF THE CONSTITUTION ON FAIR HEARING
By virtue of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in the determination of his civil rights and obligation, including any question or determination by or against any government or authority or person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Thus, the principle of fairness is sacrosanct in our judicial system and it must as a matter of Constitutional obligation be observed by a judicial umpire. Furthermore, the right to fair hearing must be exercised within the confines of the law, regulatory and procedural provisions, as may be applicable to the particular case. See AHMED V. REGD. TRUSTEES OF ARCHDIOCESE OF KADUNA OF ROMAN CATHOLIC CHURCH (2019) 5 NWLR (PT. 1665) 350 at 313. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
FAIR HEARING – ATTITUDE OF THE APPELLATE COURT WHERE THE QUESTION OF FAIRNESS OF PROCEEDING ARISES
Similarly, the question of fairness of proceedings is quite distinct from the question of the merit of the trial Court’s decision. Therefore, when a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinise the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. In other words, it is immaterial if the same decision would have been arrived at had a hearing not been tainted by the unfairness because by its application, a breach of fair hearing leads to the inevitable conclusion that an unfair method cannot produce a fair result. See IDAKWO V. EJIGA (2002) 13 NWLR (PT. 783) 156. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
HEARING NOTICE – ESSENCE OF HEARING NOTICE
As it is well known, the essence of a hearing notice is to notify or inform the party to whom it is addressed of a date which his matter has been set down or fixed for mention or hearing in Court. In OKOYE V. KEENLINE INVESTMENT LTD ANOR (2015) LPELR – 24377 (CA) Per IGE, JCA (pp. 41 paras. C held:
If is crucial and constitutionally mandatorily that a party to a case must be served with hearing notice at every stage of the proceedings where it is observed that the party was not present on previous occasions at hearing or trial and the case had to be adjourned in his absence.”
Also, in MAINSTREET BANK LTD V. BAYERO (2016) LPELR – 41 624 (CA), while relying on an earlier decision of this Court in NASCO MANAGEMENT SERVICES LTD V. A. N. AMAKU TRANSPORT LTD (2003) 2 NWLR (PT. 804) 290 at 338 – 339, it was held that where service of hearing notice is called for, any proceedings conducted without due issuance of it rendered null and void. It is a fundamental right which easily vitiates proceedings. Put differently, where the proceedings are conducted when no hearing notice is served on a party who should have been necessarily served, the whole proceedings are rendered void no matter how well conducted. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
HEARING NOTICE – NON-SERVICE OF A HEARING NOTICE ROBS THE COURT OF JURISDICTION TO ENTERTAIN THAT MATTER
Finally, in the case of NIGERIAN NAVY v. IRONBAR (2017) LPELR – 43528 (CA), SAULAWA, JCA (as he then was) at (pp. 24 – 25) said:
it must be reiterated at this point in time, for the avoidance of any lingering doubt that the issue of service of hearing notice on a party notifying him of the hearing date of the matter is very fundamental to the administration of justice. It is the service of the hearing notice that confers on the Court the jurisdiction competence to entertain the matter before it. Thus, where a matter is adjourned to a date other than the date the party had previously 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 be aware of the subsequent hearing dates. In the light of the above, it is preposterous to argue that the Appellant was not entitled to be put on notice simply because she fails to enter appearance after been served with the Originating Processes. I therefore agree with the submission by the Appellant that the non-service of the hearing notice is a fundamental defect which robs the Court of its jurisdiction to entertain the suit. I therefore take the firm view that failure to serve the Appellant hearing notice is denial of fair hearing which is contrary to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
SERVICE OF ORIGINATING PROCESSES – SERVICE OF ORIGINATING PROCESS IS FUNDAMENTAL AND A PRE-CONDITION TO THE EXERCISE OF JURISDICTION BY THE COURT
Turning back to the service of the Originating Processes, the law is also settled that service of Court process is fundamental and a pre-condition to the exercise of
jurisdiction by the Court. Failure to effect service of Court process on the opposing party is a fundamental flaw and the party not served is entitled ex debito justlae to have the proceeding of that Court and judgment on that case set aside. Lack of service where required, deprives the Court the competence and jurisdiction to hear the suit. See SOCIETE GENERALE (NIG) LTD V. ADEWUNMI (supra) and ONWUBUYA V. IKEGBUNAM (2019) 16 NWLR 9PT. 1697) 94 at 115. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
SERVICE OF ORIGINATING PROCESS – 3 WAYS OF PROVING SERVICE
Generally, there are three (3) ways of proving service and these are
(1). By certificate of service signed by the process server,
(2). Proof of service by affidavit and
(3) the appearance in Court of the party served as ordered in the process or on the return date stated in it or on the hearing notice attached thereto. Each of these notices of service afford prima facie evidence of service and a Court can properly act on any of them. However, a defendant is not precluded from rebutting service by oral evidence when there was in fact none. See AMIKA ANOR V. IRONBAR & ORS (2010) LPLER – 3764 (CA). Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
RECORD OF APPEAL – THE POSITION OF THE LAW ON COMPILATION AND TRANSMISSION OF RECORD OF APPEAL IN A PRE-ELECTION APPEAL
Regrettably however, in a pre-election appeal which is sui generis, a record of appeal shall by virtue of Rule 9 of the Election Judicial Proceedings Practice Directions, 2022 be compiled and transmitted within a period of not more than ten (10) days of the receipt of the Notice of Appeal. Even though the Practice Directions aforesaid, did not specifically provide for the compilation and transmission of Additional Record, its desirability is dependent on justice of a given case. In any event, both the main Record and the Additional Record must necessarily be compiled and transmitted within a period of not more than ten (10) days of the receipt of the Notice of Appeal. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
SERVICE OF HEARING NOTICE – EFFECT OF A COURT CONTINUING PROCEEDING WHERE THERE WAS NO SERVICE OF HEARING NOTICE
In conclusion, there is no denying the fact that the trial Court was in error to have proceeded with the hearing of the suit giving rise to this appeal, when there was no service of hearing notice on the Appellant. And the denial of the Appellant its right to fair hearing invariably affected not only the proceedings of the trial Court but also the judgment and orders made therefrom. I therefore unhesitantly resolved the composite issue in favour of the Appellant. Per – MUHAMMED LAWAL SHUAIBU, J.C.A.
SERVICE OF COURT PROCESS – THE FUNDAMENTAL NATURE OF SERVICE OF COURT PROCESS
The fundamental nature of service of Court process on parties is such that absence of it robs the Court of any jurisdiction that it would otherwise have had, because it is a condition precedent to the exercise of jurisdiction by Court. Authorities are legion on the point, that service of Court process on the opposing party is crucial and fundamental as it is the service of the process that gives the Court the jurisdiction and the competence to entertain and make pronouncement on such Court process. Without service, the jurisdiction of the Court cannot be activated. Failure to serve hearing notice where service is required is a failure which goes to the root of the adjudication process. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter to the detriment of the party not served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA), Ahmed vs. Ahmed (2013) LPELR 21143 (SC), SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC), Mark vs. Eke (2004) LPELR-1841 (SC), Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC), Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). Per – MUHAMMAD IBRAHIM SIRAJO, J.C.A
SERVICE OF HEARING NOTICE – FAILURE OFT SERVICE OF HEARING NOTICE CONSTITUTES A FUNDAMENTAL DEFECT
It has also been held that failure of service of hearing notice on a party entitled to be served is a fundamental defect in the proceedings and fatal to the case, it amounts to a breach of the party's right to fair hearing as guaranteed by Section 36 (1) of the 1999 Constitution (as altered). See Emeka vs. Okoroafor (2017) LPELR-41738 (SC), Ihedioha vs. Okorocha(supra), Achuzia vs. Ogbomah (2016) LPELR 40050 (SC), Okeke vs. Lawal & Ors (2018) LPELR-43920. Per – MUHAMMAD IBRAHIM SIRAJO, J.C.A
JURISDICTION – COURT PROCEEDINGS CONDUCTED IN THE ABSENCE OF PROOF OF SERVICE IS ONE CONDUCTED WITHOUT JURISDICTION
In the absence of proof of service of hearing notice on the Appellant, the proceedings of the lower Court leading to the judgment, subject matter of this appeal, was conducted without jurisdiction. Per – MUHAMMAD IBRAHIM SIRAJO, J.C.A
SERVICE OF HEARING NOTICE – THE COURT IS LEGALLY OBLIGATED TO ENSURE A DEFENDANT IS SERVED HEARING NOTICE WHETHER OR NOT HE ENTERS APPEARANCE
Whether a Defendant enters appearance in a suit filed against him or not, the Court is under legal obligation to ensure that he is served with hearing notice before proceeding with the cause or matter. Per – MUHAMMAD IBRAHIM SIRAJO, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Election Judicial Proceedings Practice Directions, 2022
Practice Directions (Election Appeals to the Supreme Court) 2011
