Rt. Hon. Emeka Ihedioha & Anor V Owelle Rochas Anayo Okorocha & 36 Ors

Areas of Law:

APPEAL, COURT, ELECTORAL LAW, FAIR HEARING, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary of Facts
The Appellant as Petitioners before the Governorship Election Tribunal, Owerri had their petition dismissed for being abandoned by reason of non-valid application for issuance of pre-trial forms in line with paragraph 18 of the 1st Schedule to the Electoral Act, 2010 (as amended). On appeal to the Court of Appeal, the Appellants failed to endorse the notice of appeal with the addresses for service on the 2nd – 36th Respondents. In consequence of which the 1st – 37th Respondents filed a preliminary objection to the competence of the appeal. Furthermore, the Appellants served the brief of argument on some of the Respondents by simply depositing them with the Protocol Officer at the office of the All Progressive Congress (APC) party. The court held that the notice of appeal was fundamentally defective for not being endorsed with the addresses for service and consequently struck out the appeal for being incompetent. Dissatisfied with the lower court’s order striking out the appeal, the Appellants filed three notices of appeal before this court and afterwards adopted one.

Held
Appeal Dismissed

Issues for Determination

• Whether the Court of Appeal had the competence to revisit and re-adjudicate in their judgment of 3rd September, 2015, the issue of service of the Notice of Appeal on the respondents after confirming service on all the respondents on record on 21/8/15.
• Whether there was a flagrant non-compliance with Order 2 Rule 3 and Order 6 Rule 20) of the Court of Appeal Rules by the appellants as held by the Court of Appeal or at all
• Whether failure to include the name and address of a respondent in an appeal in paragraph 5 of the Notice of Appeal is in law a fundamental vice capable of vitiating a notice of appeal or preventing the hearing of an appeal on merit
• Whether senior counsel for the appellants in the court below approbated and reprobated in his submission on Order 6 Rule 2(1) of the Court of Appeal Rules or suggested that any of the respondents was not entitled to fair hearing.
• Whether the striking out of the notice of appeal on ground of incompetence was proper.
• Whether the 3rd- 36th respondents were persons directly affected by the appeal which was specifically on the ruling on the joint interlocutory application filed in the Tribunal by the 1st and 37th respondents only.
• Whether the failure of the court below to pronounce on the two motions fully heard by the Tribunal, and the report of the fully concluded pre-hearing session is proper in law

RATIONES
“DECISION” –DEFINITION OF DECISION
“Decision” is defined in relation to a court as “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation” See L. O. Dike & Ors V. Dr. Osita Aduba & Anor (2000) 3 NWLR (pt. 647) I, Kalu V. Odili (1992) 5 NWLR (pt. 240) 130 at 189”. PER J.I.OKORO, J.S.C

FUNCTUS OFFICIO – A COURT BECOMES FUNCTUS OFFICIO AFTER DETERMINING THE ISSUE(S) RAISED BY PARTIES
“It is trite that once an issue or issues have been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow the parties to re-open the same issues before it for relitigation. See John Andy Sons & Co. Ltd V. National Cereals Research Institute (1997) 3 NWLR (pt. 491) I, Nnajiofor V. Ukonu (1985) 2 NWLR (pt 9) 686 at 688, Chief Ozo Nwankwo Alor & anor. V. Christopher Ngene & Ors (2007) 17 NWLR (pt. 1062) 163”. PER J.I.OKORO, J.S.C

SERVICE OF ORIGINATING PROCESS – IMPORTANCE OF SERVICE OF ORIGINATING PROCESS
“It is trite that service of originating process is a pre-condition to the exercise of jurisdiction by the court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. See Emiskip Ltd V. Exquisite Industries Nig. Ltd (2003) 4 NWLR (pt. 809) 898, Skenconsult Nig. Ltd V. Ukey (1981) 1 SC 6, Craig V. Kanseen (1943) 1 QB 256, Oke V. Aiyedun (1986) 2 NWLR (pt. 23) 548”. PER J.I.OKORO, J.S.C

RULES OF COURT – DUTY OF COURTS TO ENSURE ITS RULES ARE OBEYED
“Although the court is not a slave to its rules, it shall at all times ensure that its rules are obeyed”. PER J.I.OKORO, J.S.C

NON- COMPLIANCE WITH THE RULES OF COURT – EFFECT OF NON-COMPLIANCE WITH THE RULES OF COURT
“I agree that it is not every non-compliance with the rules of court that should vitiate the proceedings. However, where the non-compliance robs the court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”. PER J.I.OKORO, J.S.CSERVICE OF PROCESS – FUNDAMENTAL NATURE OF SERVICE OF PROCESS
“Service of process, I must say, is a fundamental issue and a condition precedent before the court can have competence to adjudicate. See Eke V. Ogbonna (2007) All FWLR (pt. 351) 1456 at 1482 para. H.” PER J.I.OKORO, J.S.C

SERVICE OF PROCESS – EFFECT OF FAILURE TO PUT THE NAMED RESPONDENT ON NOTICE
“The appeal was not commenced by due process of law as conditions precedent to assumption of jurisdiction by the court were absent. It was not an exparte proceedings. Therefore, failure to put the named respondents on notice was fatal to the appeal. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341. Ajao V. Obele (2005) 5 NWLR (pt. 918) 400, Skenconsult V. Okey (supra).” PER J.I.OKORO, J.S.C

POWER OF THE SUPREME COURT – LIMIT ON THE EXERCISE OF THE POWER OF THE SUPREME COURT
“This court has “a plenitude of powers” to do that which the justice of the case demands but I must say that such power like any other statutory power is to be exercised with certain parameters set by the law. See Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 at 325 paras H – P, Shettima V. Goni (2011) 18 NWLR (pt. 1279) 413 at 452, Olowokere V. African Newspapers of Nigeria Ltd (1991) 5 NWLR (pt 293) 583 at 586, Inakoju V. Adeleke (2007) 4 NWLR (pt 1025) 425”. PER J.I.OKORO, J.S.C

NOTICE OF APPEAL – SERVICE OF NOTICE OF APPEAL
“Notice of appeal, being an originating process, is fundamental to jurisdiction and must be served personally on the respondents, unless otherwise directed or ordered by the court or exempted by the provisions of the law”. PER J.I.OKORO, J.S.C

JURISDICTION OF COURT – EFFECT OF LACK OF JURISDICTION OF COURT
“Service of process is a threshold issue. It is very important in adjudicatory functions. Same is an issue that touches on the jurisdiction which is very fundamental, if a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic. See Madukolu v. Nkemdilim (1963) 2 SCNL, 341; Oloba v. Akereja (1988) 3 NWLR (Pt 84) 508”. PER J.A.FABIYI, J.S.C

NOTICE OF APPEAL – DUTY OF THE COURT WHERE THE NOTICE OF APPEAL IS NOT SERVED ON THE RESPONDENT
“Let me reiterate the settled law that a party cannot be said to have been given a fair hearing when he is not given a chance to be heard. If Notice of Appeal is not served on the respondent, the appeal cannot take off. It remains a non-starter. The court is bound to dismiss same. The decision of this court in Akinloye v. Adelakun (2000) 5 NWLR (Pt. 657)530 is in point”. PER J.A.FABIYI,J.S.C

NOTICE OF APPEAL- IMPLICATION OF FAILURE TO SERVE A NOTICE OF APPEAL ON AFFECTED PERSON(S)
“The law is trite that Notice of Appeal is the foundation of the appeal. If it is proved that it has not been served on person affected, it touches the root of the appeal and such the court or tribunal is be bereft of jurisdiction to adjudicate or hear the matter. See the case of Obimonive V Erinosho (1966), All NLR 250 to 252, D.R Alphonsus Ojo v INEC & Anor (2008) LPELR -4705”. PER A. SANUSI, J.S.C

Statutes Referred To:
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Court of Appeal Act
Court of Appeal Rules 2011
Electoral Act, 2010, as amended
Supreme Court Act