⦿ CASE SUMMARY OF:
Oluwarotimi Odunayo Akeredolu v. Dr Olusegun Michael Abraham & Ors (2018) – SC
– service of process;
– election petition;
– primary election;
– suo moto;
– substituted service;
Oluwarotimi Odunayo Akeredolu
1. Dr. Olusegun Michael Abraham
2. All Progressives Congress (APC)
3. Chief John Odigie Oyegun
4. Independent National Electoral Commission (INEC)
⦿ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Chief Akin Olujinmi, SAN
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This is an appeal against the decision of the Court of Appeal where that court upheld the decision of the Trial Court – Federal High Court. The decisions upheld where: that the Federal High Court did not raise the issue of jurisdiction suo moto; that the substituted service ordered by the trial court is valid.
For the sake of this appeal the arguments of the 2nd and 3rd respondents support the Appellant.
1. Whether the lower Court properly resolved the issue raised by the Appellant to the effect that the trial Court raised suo motu and decided the issue that the appellant carried on substantial part of his business within the jurisdiction of the Court and that the trial Court therefore had personal jurisdiction over him.
2. Whether the lower Court was right in holding that the denial of the appellant of a hearing on the issue raised suo motu and decided by the trial Court was not shown to have occasioned a miscarriage of justice.
3. Whether the lower Court was right in holding that the case of Kida v Ogunmola (2006) 13 NWLR (pt 997) 377 was distinguishable from this case and that the trial Court had jurisdiction to hear and determine this suit.
4. Whether the lower Court was right in the interpretation it gave to Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009 which led to the failure of the lower Court to set aside the order of the trial Court for substituted service and the service based on same.
⦿ HOLDING & RATIO DECIDENDI
ISSUE 1 & 2 SOLVED TOGETHER IN FAVOUR OF THE RESPONDENT.
i. My view therefore is that although this law business is probably one of national weight and prestige, by maintaining offices in Abuja firstly and Ibadan secondly, it cannot be denied that the 2nd Defendant who carries on his law business in partnership with his counsel in Abuja, is someone who carries on a substantial part of his business in Abuja within the judicial division of this Court as to invest the Court with the requisite personal jurisdiction over him, and which jurisdiction on the authority of Kida v Ogunmola must be present for the Court to have authority to issue an order of substituted service on him.
ii. I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja.
ISSUE 3 WAS HELD IN FAVOUR OF THE RESPONDENT.
i. In respect of processes issued in the Federal High Court to be served on a defendant at an address in any State of the Federation or of the Federal capital Territory, it is one to be served within the territorial jurisdiction of the Federal High Court which comprises all the 36 States and the Federal Capital Territory as set out by the Constitution of the Federal Republic of Nigeria 1999 (as amended). What I am endeavouring to say is that the territorial boundaries of the Federation of Nigeria are the limits of the territorial jurisdiction of the Federal High Court as its processes apply as a matter of law throughout the country as the processes of a single Court issued within jurisdiction.
ii. In the instant case, assuming that the appellant resident in Owo in Ondo State, or any other part of territorial boundary of Nigeria, the originating summons issued by the Federal High Court in Abuja can be personally served on him at that address. Where, as it turned out in this case, personal service was impossible, the learned trial Judge was competent and had the jurisdiction to make an order for substituted service on the appellant. This is so because of the nation wide territorial jurisdiction of the Federal High Court. Both the trial Court and the Court below were right to distinguish the case of Kida v Ogunmola (supra) from the instant case because the former relates to the jurisdiction of the State High Court while the latter relates to the jurisdiction of the Federal High Court with their respective and different territories of operation. As it turns out, this issue is resolved against the Appellant.
ISSUE 4 WAS HELD IN FAVOUR OF THE RESPONDENT.
i. By section 18(1) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, a “person” is defined as including anybody or persons corporate and incorporate. The All Progressives Congress, the political party of the Appellant at its National Headquarters Abuja, qualifies as “some other person” as used in the Rules. It is obvious that a political party is an artificial person and operates through natural persons. As the appellant was a governorship candidate of the APC, it was reasonable for the learned trial Judge to believe and exercise his discretion in favour of granting the application through the National Secretariat of the Party.
ii. The phrase “come to the knowledge of the person to be served” in Rule 5[b] gives it a liberal meaning. That is to say, where the process is made available at the office or residence of the defendant whether he is present or not and he is so informed as was done in this case, the process has come to his knowledge and that satisfies Order 6 Rule 5[b) of the Federal High Court (Civil Procedure) Rules. To hold otherwise could be to dignify technicality above doing substantial justice. Any interpretation by our Courts which seeks to emasculate should be avoided as it would not serve the interest of justice and would tend to confine the citizenry into a legal container. It should be avoided at all legitimate costs.
⦿ SOME PROVISIONS
Section 19(1) of the Federal High Court Act which provides: “19(1) The Court shall have and exercise jurisdiction throughout the Federation, and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions or part thereof by such name as he may think fit.”
Order 6 Rule 5[b] of the Federal High Court (Civil Procedure) Rules 2009 provides: “5. Where it appears to the Court (either after or without an attempt at personal service) that for any personal service cannot be conveniently effected, the Court may order that service be effected either: (a) … (b) by delivery of the document to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served.”
Section 18(1) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, a “person” is defined as including anybody or persons corporate and incorporate.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Before I proceed further, let me make it abundantly clear that Courts of law are not allowed to raise any issue suo motu and proceed to resolve same without hearing from the parties on the issue so raised. Indeed, this Court has warned in several decisions against the practice by Courts in raising a point suo motu and deciding on it without inviting the parties to address it on the matter. – Inyang Okoro, J.S.C. Akeredolu v. Abraham (2018)
May I also state that although an appeal Court or any other Court is entitled in its discretion, to take points suo motu if it deems fit to do so in the interest of justice, that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken, the parties must be given opportunity to address the Court before a decision on the point can be made. This is a matter of duty and a fulfillment of the constitutional requirement of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Failure to observe this admonition may lead to such a decision being set aside on appeal. – Inyang Okoro, J.S.C. Akeredolu v. Abraham (2018)
It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. – Inyang Okoro, J.S.C. Akeredolu v. Abraham (2018)
When a Court extracts information from its file. It cannot be accused of raising issue suo motu. – ADAMU GALINJE, J.S.C. Akeredolu v. Abraham (2018)