➥ CASE SUMMARY OF:
ODEY v. ALAGA & ORS (2021) – SC
by PipAr Chima
Supreme Court – SC.9/2021
➥ JUDGEMENT DELIVERED ON:
Thursday, February 25, 2021
➥ AREA(S) OF LAW
Service of process;
➥ NOTABLE DICTA
⦿ PERSONAL SERVICE OF A NOTICE OF APPEAL IS A REQUIREMENT OF LAW
With profound respect to the erudite senior counsel, this cannot be. As this Court explained, in a most magisterial manner, the term irregularity in respect of procedure, is often construed to denote something that does not fundamentally taint or besmirch a procedure as to render it invalid or a nullity. In other words, an irregularity is deemed to be curable. However, personal service of an originating process, like a Notice of Appeal, is a fundamental requirement of the law. – C.C. Nweze JSC.
⦿ INEFFECTIVE SERVICE VITIATES COURT’S JURISDICTION
In effect, it, [that is, ineffective service], is a fundamental vice that vitiates the exercise of the jurisdiction and competence of the Court. It is beyond what can be waived for it is a condition precedent to the invocation of the Court’s jurisdiction. – C.C. Nweze JSC.
⦿ PERSONAL SERVICE OF AN ORIGINATING PROCESS IS FUNDAMENTAL
The law is well settled that personal service of an originating process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside. – A. Aboki JSC.
⦿ NON-SERVICE VITIATES ENTIRE PROCEEDINGS
Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so. – A. Aboki JSC.
⦿ SERVICE OF PROCESS SHOULD BE DONE IN THE RIGHT MANNER
Put in another way, service is a precondition to the exercise of jurisdiction by the Courts. Where there is no service or there is a procedural fault in service in 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 put up a defence. If after service, he does not put up a defence the law will assume and rightly too for that matter that he had no defence. Failure to serve process where service is required in a particular manner is a fundamental vice. It deprives the Court of the necessary competence and jurisdiction to hear the suit. That is to say, that the condition precedent to the exercise of jurisdiction was not fulfilled. – S.C. OSEJI, J.S.C.
⦿ NOTICE OF APPEAL MUST BE SERVED PERSONALLY
By Order 2 Rule 3 (1) (b) of the Supreme Court Rules, Notice of Appeal is required to be served personally. This Court has in a number of cases held that the Notice of Appeal is an originating process and failure to serve same personally on a Respondent constitutes a fundamental vice which renders the appeal incompetent as this Court will be deprived of the jurisdiction to entertain the appeal in any form whatsoever except to make an order to strike out the said appeal. – S.C. OSEJI, J.S.C.
⦿ STARE DECISIS
It is settled that Courts, including this Court are bound by the earlier decisions of the apex Court on same or similar facts determined on the basis of same or similar legislations in their subsequent determination of cases in respect of same or similar facts and on the basis of same or similar legislations. See ATOLAGBE & ANOR V. AWUNI & ORS (1997) LPELR – 593 (SC) and DR. UMAR V. ADMIRAL MURTALA NYAKO & ORS (2014) LPELR – 22878 (SC). – M.D. Muhammad JSC.
⦿ MOTION EX PARTE FOR SUBSTITUTED SERVICE
A motion ex parte is the legitimate process to employ to seek for a Court’s order of substituted service. – E.A. Agim, J.S.C.
Stephen Adi Odey
1. Chief John Alaga;
2. Jarigbe Agom Jarigbe;
3. Independent National Eletoral Commission (INEC)
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, J.S.C.
⦿ FOR THE APPELLANT
Chief Olanipekun, SAN.
⦿ FOR THE RESPONDENT
S. I. Ologunorisa, SAN.
➥ CASE HISTORY
The first respondent in this appeal, Chief John Alaga, by way of Originating Summons, instituted an action at the High Court of the Federal Capital Territory, Abuja, on October 5, 2020. He sought judicial responses to the following questions:
1. Whether having regard to the provisions of Section 31 (5) of the Electoral Act (as amended); the 1st Defendant gave and/or supplied false information to the Defendant in his INEC form CF001 by purporting to have sat for and/or obtained educational qualification making him eligible to contest for the Cross River North Senatorial bye-election, scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact is not qualified and/or eligible to contest for, be nominated or elected for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported primary election of the People’s Democratic Party (PDP) held on September, 2020 at Ogoja Government Secretariat, Ogoja, Cross River State, wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety?
4. Whether by the provisions of Section 87 of the Electoral Act, (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the Peoples’ Democratic Party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020, or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant?
On November 4, 2020, the trial Court, in its judgment, dismissed the case of the first respondent in its entirety. It held, inter alia: a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye election;
Dissatisfied with the judgment of the trial Court, the first respondent, on November 12, 2020, appealed to the Court of Appeal, Abuja Division, [hereinafter, simply, referred to as “the lower Court”], vide Notice of Appeal containing five Grounds of Appeal. The lower Court heard the appeal. On December 17, 2020, it delivered its judgment, wherein it dismissed the first respondent’s appeal and affirmed the decision of the trial Court.
The appellant herein, on December 24, 2020, filed an application before the lower Court. He prayed for leave to appeal against the judgment of the lower Court to this Court as an interested party. The said application was granted on December 29, 2020. On the same day, the appellant filed his Notice of Appeal against the judgment of the lower Court to this Court.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: SUCCEEDED]
I. Senior counsel for the first respondent prayed the Court to strike out the appeal due to non-service on the first respondent. It is common ground that the first respondent was not served personally with the said Originating process, that is, the Notice of Appeal.
The court held that the preliminary objection succeeds; that the failure to file a service personally on the opposing party robs the court of its jurisdiction to preside over the appeal. The appeal is struck out.
[APPEAL: STRUCK OUT BY MAJORITY]
** M.D. Muhammad JSC:
[Preliminary objection: dismissed]
I.A. The aggregate stand of this Court in the foregoing decisions is to the effect that the non endorsement of an address of service, not necessarily personal address of a respondent, in the notice of appeal as well as the non service of the notice of appeal on the said respondent robs the Court of its jurisdiction to entertain the appeal. The essence of endorsing an address of service in the notice of appeal is to facilitate the service of same on the respondent since service of the notice of appeal in the absence of the address on which same is to be served is indeed an impossibility. It is this absence of an address of service, the consequent absence of the service of the notice of appeal and the ensuing proceedings of the Court inspite of the non-provision of the address of service and/or the non-service of the notice of appeal on the respondent that renders the notice of appeal as well as the subsequent proceedings of the Court incompetent, null and void. In the case at hand, the addresses of service of the respondents/applicants, are clearly endorsed on the notice of appeal and service of the notice effected on them through the addresses so provided. The respondents/applicants insist that because the addresses endorsed on the notice of appeal for service are those of their counsel rather than their own personal addresses, both the notice of appeal as endorsed and the service of the notice on them carried out through their respective counsel, having contravened the Rules of Court, are null and void thereby robbing this Court the jurisdiction to entertain the appeal. It is within my province to differ.
I.B. The respondents/applicants, like those in the earlier case, do not deny being served. Their grouse is that the service through their counsel which offends the Court’s adjectival rules is a fundamental defect that robs this Court its jurisdiction to proceed. The law, on account of the decision in SALEH V. ABAH (supra), does not support this claim. They have been duly served. I so hold.
I.C. We must all be reminded that Rules of Court pursuant to which the respondents/applicants raised their objection to the competence of this Court, unlike the Constitution that confers appellate jurisdiction on the Court, are not sacrosanct. Rules of Court remain the mere vehicles that assist the Court to resolve the matters litigated upon by parties. They must therefore, not be allowed to override the substantive rules which define the right parties seek to enforce. The objections the respondents/applicants agitate herein challenge the procedural rather than the statutory jurisdiction of the Court. Unless these objections in themselves constitute a breach of the statutory jurisdiction of the Court as well, they remain an irregularity which the Court may remedy with a view to settling the real issue in controversy between the parties.
I.A. In the case at hand, given that the trial Court lacks the jurisdiction to entertain the case, the lower Court’s decision affirming the incompetent decision of the trial Court must suffer the same fate. I so hold. The judgments of both Courts are hereby accordingly set-aside.
** H.M. Ogunwumiju, JSC:
[Preliminary objection: dismissed]
I.A. With the greatest respect, the filling of the notice of appeal and its competence is quite different from the competence of the service of the said notice of appeal. There is no inherent incompetence in the notice of Appeal filed before this Court. What is in issue here is the incompetence of its service. It cannot be the law that a notice of appeal is incompetent if the personal address of the respondent is not indicated therein. Order 2 Rule 3 and Order 6 Rule 2 (1) of the Supreme Court Rules 2011 requires that the address of the respondent be endorsed on the Notice of Appeal. The rules are quite clear. There is no imputation that the address put on the process must be the personal address of the Respondent so long as the Respondent is personally served.
I.B. If the Respondent lives at the material time with his brother within jurisdiction in Okene for example and the address of his brother is put on the address for service and he receives the service, he cannot turn around to complain that he was not served as his own personal address is Abuja where he ordinarily resides. That would be a ridiculous interpretation of the law. What is important is that the Respondent is served personally. Whatever address put on the Notice of Appeal can always be changed where the Appellant or Plaintiff realizes that the Respondent cannot be easily personally served at the initial address on the Notice of Appeal. The Notice of Appeal still remains competent through all the changes of address and means of serving it. It is the non-endorsement of any address for service on the Defendant or Respondent, not necessarily personal address of a respondent in the Notice of Appeal and the lack of personal service that deprives the Court of its jurisdiction.
I.A. My Lords, in this appeal it is clear from the records and the fact that the Appellant’s right as a sitting senator has been compromised by the consequential orders made whereas he was never called upon to defend himself or made a party to the suit and this in my humble view rendered the judgment of the trial Court a nullity. This case is similar to PDP V. Ezeonwuka (2018) 3 NWLR Pt. 1606, Pg. 187, where the 5th respondent who won the primary election of a political party was eclipsed, as it were, from being made a party at trial, but succeeded in the appeal in this Court as an interested party to this Honourable Court.
The rules of fair hearing ‘Audi Alteram partem’ has been violated by the two lower Courts as enshrined in Section 36 of the 1999 Constitution (as altered). It is the duty of every Court to ensure that the parties who are likely to be affected by the result of an action be joined.
** E.A. Agim, J.S.C:
[Preliminary objection: dismissed]
I.A. This Court having caused the processes to be served by substituted means, should have struck out the objection concerning the service of the notice of appeal and proceeded to hear and determine the appeal. The hearing and determination of the objection after the notice of appeal and other processes have been served by substituted means pursuant to the Order of this Court, was incompetent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 115 (2) of the Evidence Act 2011.
➥ REFERENCED (CASE)
⦿ SERVICE OF PROCESS IS FUNDAMENTAL AND FAILURE VITIATES
In SGBN LTD VS ADEWUNMI (2003) LPELR 3081 (SC); (2003) 10 NWLR (PT 829) 526, this Court restated its concern thus: At page 539. “Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity.”
⦿ TRIAL COURT JURISDICTION DETERMINES COURT OF APPEAL’S JURISDICTION
In APGA V. ANYANWU (2014) 7 NWLR (PT 1407) 541 at 567-568, this Court held as follows:- “The jurisdiction of the Court of Appeal to entertain an appeal is dependent upon the jurisdiction of the trial Court to hear and determine the suit before it in the first instance. Where the trial Court lacks the jurisdiction to entertain the case, its proceedings are a nullity and the Court of Appeal would not have the jurisdiction to entertain an appeal arising therefrom. An appeal from proceedings initiated conducted without jurisdiction will be liable to be struck out for want of jurisdiction.”
⦿ CONSEQUENTIAL ORDER GIVES EFFECT TO THE JUDGEMENT AND NEED NOT BE ASKED FOR
Amaechi v. Independent National Electoral Commission & Ors (2008) LPELR-446 where the Supreme Court per Musdapher, J.S.C. held that: “It is the law even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment or contains matters. It is settled law that Court can order an injunction even if it is not specifically claimed but appears incidentally necessary to protect the established right.”
⦿ OMNIBUS RELIEF IS WORTHLESS
In Oye v. Gov. of Oyo State (1993) NWLR Pt. 306, 437 at 452, the Court held thus: “The omnibus relief ‘such further or other orders as this honorable Court may deem necessary to make in the circumstances’ does not constitute a specific or known prayer and is therefore worthless as it is not the business of the Court to tell an applicant what relief he may contemplate but not seek.”
➥ REFERENCED (OTHERS)