➥ CASE SUMMARY OF:
Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & Ors. (SC.396/2015, 24th Feb 2017)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Service of court process;
Fundamental right rules;
Fair hearing.
➥ CASE FACT/HISTORY
In November 2010, the appellant herein was elected General Superintendent of the Assemblies of God Church (henceforth referred to as the church) for a term of four years. During the course of his tenure, he was alleged to have committed various acts inimical to his oath of office involving alleged breaches of the church’s Constitution and by-laws. The 9th-19th respondents wrote a petition (Exhibit PE2) dated 24th September, 2013, which was circulated to all leaders of the church at various levels and was also published on the internet, social media and in the electronic and print media. At the time the petition was written the appellant was also the Chairman of the Executive Committee of the Church, which committee is charged with responsibility for disciplinary matters. The appellant addressed the allegations made against him in a letter dated 8/10/2013 (Exhibit PE3). According to the appellant, as a result of his response to the allegations, he received a vote of confidence from the pastors, presbyters and other members of the church. It was his contention that the 9th – 19th respondents were not pleased with this state of affairs and wrote a further petition accusing him of corruption and breach of the churchs Constitution. In an attempt to resolve the impasse, the appellant scheduled a meeting of the Executive Committee. It is however contended that after the meeting, the 1st3rd respondents and other members of the Executive Committee began to hold separate meetings in the home of the 4th respondent. On 6th March 2014, they convened a special session of the General Committee, the body which considers appeals from decisions of the Executive Committee, to consider the petitions. The appellant was invited but he declined to attend on grounds of non-compliance with the church regulations governing the convening and composition of a special session of the General Committee. In the meantime, certain members of the church instituted a suit at the Enugu State High Court in Suit No. E/82/2014 to forestall the holding of the meeting scheduled for 6th March 2014, which was perceived to be a move by the respondents to remove the appellant from office. The appellant was not a party to that suit. The meeting held nonetheless. Upon the conclusion of deliberations by the special session of the General Committee, the appellant’s appointment as General Superintendent of the church was terminated. He was also suspended from membership of the church. He contended that his right to fair hearing had been breached in the circumstance. The action dismissing the appellant and some other members of the church was taken during the pendency of Suit No. E/82/2014. On 13/3/2014, parties in that suit were ordered to revert to the status quo ante bellum. It was the appellant’s contention that notwithstanding this order, the respondents took steps to actualize their decision by ostracizing him by writing to members of the church and threatening to suspend or dismiss anyone who had dealings with him. It is also his contention that the reason given for his suspension from the church and the termination of his appointment as General Superintendent was that he had instituted an action against the church, whereas he was not a party to Suit No. E/82/2014. It was the appellant’s further contention what as a consequence of the meeting of 6/3/14 he had been deprived of his remuneration/means of livelihood and that his public image had been tarnished. It was for all these reasons that he filed the application for the enforcement of his fundamental rights at the trial Court.
The appellant herein, by a motion on notice filed on 15/4/2014, applied to the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, for the enforcement of his fundamental rights. The application was brought pursuant to Order 2 Rules 1, 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Sections 6(6), 36(1), (2), (4) and (5), 38(1), 39(1) and (2) and 42(1) of the 1999 Constitution of the Federal Republic of Nigeria and under the African Charter on Human and Peoples Rights. The application was supported by a statement setting out the names, address and description of the applicant, the reliefs sought and the grounds for seeking the reliefs. It was also supported by an 85-paragraph affidavit of facts with several exhibits attached thereto and a written address. The reliefs sought, as contained at pages 29-32 of the record, are as follows, inter alia: ‘A DECLARATION that the meeting held by the respondents on 6th march, 2014, purportedly as a meeting of the General Committee of the Assemblies of God, Nigeria, at the National Secretariat of Assemblies of God, to determine allegations made against the applicant was illegal and unconstitutional, the same not having been properly convened and constituted in accordance with the provisions of the Constitution and Bye-Laws of the Assemblies of God, Nigeria, 2002 and in contravention of the rights of the applicant to peaceful exercise of the duties of his office as General Superintendent of the Assemblies of God, Nigeria enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended)’.
On 25/4/2014, the respondents filed an application seeking the following orders: a. Setting aside the service of the originating process and order in this suit effected by the bailiff of this Honourable Court at No. 5 Mbannano Street, Independence Layout, Enugu, Enugu State contrary to the definite address at Evangel House, plot R8 Ozubulu Street, Independence Layout, Enugu, Enugu State whereat the Honourable Court ordered that services be effected; b. Setting aside the injunctive and restraining orders made ex-parte against the respondents on record in this suit; and c. Striking out this suit for want of competence.
The parties duly filed and exchanged written addresses in respect of the application. The substantive application was heard an 23/10/2014. After considering the various processes before it and the submissions of learned counsel, the learned trial Judge in a considered ruling delivered on 11/12/2014 refused the application to set aside the service of the originating processes. He also overruled the objection challenging the competence of the suit and granted the appellant’s reliefs. N30 Million costs were awarded against the respondents and in favour of the appellant.
The respondents were dissatisfied with the ruling and appealed against it to the Court of Appeal, Enugu Division (henceforth referred to as the lower Court) vide a notice of appeal filed or 22/12/2014. On 14/4/2015, the lower Court allowed the appeal and set aside the judgment of the trial Court for being a nullity. The Court granted the application filed an 25/4/2014 and set aside the service of the ex-parte order and the substantive motion on notice on the respondents on the ground that service of the Originating processes on the respondents was not proved.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Court of Appeal was right when it set aside the service of the originating process on the respondents on the grounds that service was not in accordance with the order of the High Court?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE BAILIFF DID NOT SERVE THE PROCESS PROPERLY
‘It was on the basis of the above representation that the order was made. I have considered the views expressed by the learned trial judge and the Court below on the interpretation to be given to the order made. A careful perusal of the relief sought in the motion ex-parte and the averments in support thereof shows, as held by the lower Court, that the 1st respondent was to be served personally while the 2nd- 19th respondents were to be served through the 1st respondent, In other words the 1st respondent was to act as their agent for the purpose of service. There was no request for service to be effected either on the 1st respondent or his agent. Also evident from the application is that Evangel House, Plot R8 Ozobulu Street, Independence Layout, Enugu was the address supplied by the appellant as the 1st respondent’s address for service. The word “whose” is used to identify the person or entity to whom or which something belongs. By the application filed by the appellant, the person to be served with the processes had been removed from the realm of uncertainty with the specific request that the processes be served on all the respondents by delivery to the 1st respondent at Evangel House. As rightly pointed out by Chief Agabi, SAN, once the order was made, the bailiff had a duty to carry it out according to its terms. He had no discretion in the matter. This is not an issue of technicality but compliance with an order of Court. I am unable to agree with learned trial Judge that the words “whose address for service is Evangel House, Plot R8 Ozobulu Street, Independence Layout, Enugu”, could mean anything other than that the processes were to be served at that address.’
‘The initial affidavit of service deposed to by the bailiff clearly showed on its face that service was not effected in the manner stated in the order of Court. The 1st respondent deposed to facts purporting to show that the affidavit of service was false. He also averred that at 4.20pm when the processes were allegedly served on Shedrack Lawrence he was at Evangel House. The bailiff on the other hand in his further affidavit averred that the 1st respondent was not available at Evangel House when he went there to effect service; that he and the pointer, one Mr. Richard Akwoh were informed that the 1st respondent had left for the day and had gone home, which was why he went to serve the processes at 5 Mbanano Street. I agree with the lower Court that having regard to the material conflicts in the affidavits deposed to on either side, the learned trial Judge was not at liberty to pick and choose which averments to believe without calling for oral evidence to resolve same. The 1st respondent averred categorically in paragraph 16 of his counter affidavit to the affidavits of service of the bailiff that he was prepared to call witnesses to rebut the averments therein. In the circumstances of this case, the non-filing of a further affidavit to challenge the averments in the second affidavit sworn to by the bailiff, was not fatal. The 1st respondent had already sworn to facts stating his whereabouts at the time and on the day the processes were allegedly served on him and how the processes eventually got to his notice. No useful purpose would have been served by a further repetition of the same facts.’
‘It has been argued that as long as the processes came to the respondents’ attention and they appeared in Court and were represented by counsel, it would amount to enthroning technicalities on the altar of substantial justice to contend that service was not proved. With due respect to learned senior counsel, the issue here is that at the behest of the appellant, a particular mode of service was ordered by the Court. On the first day the matter came up for hearing i.e. on 17/4/2014, learned senior counsel for the 1st respondent, D.C. DENWIGWE, SAN challenged the mode of service, as the processes were dropped at Mbanano Street, two buildings away from the 1st respondent’s residence and not at the address provided in the order of Court. Thus, his appearance at that stage was under protest. Having challenged the mode of service and compliance with the order of Court the onus shifted to the appellant, and by extension, the bailiff of the Court to prove that service was effected in compliance with the order of Court. As observed earlier, the learned trial Judge could not have determined the issue without oral evidence to resolve the conflicts in the affidavit evidence on either side. I therefore agree with the lower Court that service of the originating processes was not proved. This issue is accordingly resolved against the appellant.’]
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↪️ II. Whether the reliefs sought by the appellant at the High Court was (sic) competent and rightly brought under the Fundamental Rights Enforcement Procedure?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE MAIN CLAIM IS THE APPELLANT’S DISMISSAL FROM THE CHURCH AND THUS CANNOT COME UNDER THE RIGHTS ENFORCEMENT RULES
‘I shall now apply the above principles to the facts of the instant case. I have carefully examined the 15 reliefs sought by the appellant. I agree entirely with the learned Justices of the Court below that the main issues in controversy in Suit No. E/202M/2014 are the appellant’s dismissal as a minister of the Assemblies of God Church and his suspension as a member of the Church; the unlawfulness of the meeting of the General Committee of the Church, which was not convened and constituted in accordance with the provisions of the Constitution of the Church; the illegal nature of the body (purportedly the General Committee of the Church), which met on 6/3/2014, which was not composed of legitimate members of the General Committee of the Church. I also agree with the Court below that the complaints relating to the appellants right to fair hearing as regards the meeting held on 6/3/14; his right to freedom of association, movement and freedom from discrimination as regards the letter written to unit heads directing them not to associate with him as General Superintendent of the Church, are all complaints arising from and incidental to his dismissal and suspension. In other words they are secondary to the main complaint. The learned senior counsel for the appellant has laboured gallantly to convince the Court that there is a difference between the remote and the proximate events that gave rise to the suit before the trial Court and that what is in issue is the action taken by the respondents even after the appellants dismissal and suspension and in defiance of the order in Suit No. E/82/2014 to maintain the status quo ante bellum. I find myself unable to agree with this line of argument.’
‘His Lordship, AGIM, JCA who wrote the leading judgment of the Court below, at pages 768 – 772 of the record undertook an in depth analysis of all the reliefs sought. I agree with him that reliefs 1, 8, 13 and 14 are the principal reliefs in the suit and that they stem from the main complaint that the appellant was wrongly dismissed and suspended from his positions as General Superintendent and member of the church respectively. All the other reliefs are incidental to this complaint. I also agree with the Court below that the right to the peaceful exercise of the appellant’s duties as the General Superintendent of the Church is not one of the fundamental rights guaranteed under Chapter IV the 1999 Constitution. The appellants right under Section 6 (6) of the 1999 Constitution, whatever it may be, is not one of the fundamental rights guaranteed under Chapter IV of the Constitution.’
‘In the instant case, having agreed with the Court below that the appellant’s principal complaints are his dismissal as General Superintendent and his suspension as a member of the Assemblies of God Church, the fact that learned counsel has drafted the reliefs as seeking the enforcement of the appellants fundamental rights, does not make his complaint a constitutional one. His Lordship, Niki Tobi, JCA (as he then was) had this to say in Peterside v. I.M.B. (1993) 2 NWLR (pt.278) 712 @ 718 719. “It has now become a fashion or style for parties to push or force the provisions of Chapter IV into most claims which cannot in law be accommodated by the Chapter. Parties at times take undue advantage of the general and at times nebulous provision of the Chapter and try to tailor in their actions even when the size of the ‘cloth’ does not fit into it. The provisions of Chapter IV though appear omnibus and large both in their character and context are chained here and there by constitutional gadgets by way of safeguards. …Counsel by his professional calling and expertise may dexterously frame a claim or relief to have the semblance of a breach of a constitutional right as contained in Chapter IV of the Constitution. He does this to give the matter a higher status in the litigation process. .. But where an action does not have a constitutional flavour in the sense that the provisions of the Constitution are not breached or in the process of being breached, it cannot be elevated to the status of a constitutional wrong. A trial judge should in such circumstances, be able to apply the eye of an eagle to scrupulously examine the character and context of the claim with a view to removing the chaff from the grain and come to grips with the camouflage or disguise in the action. He has to unveil the pretentious legal phraseology of the action and take an appropriate decision.” I am of the considered view that the Court below was properly guided in light of the above admonition The appellant has not shown why this Court should interfere. In conclusion I answer issue 2 in the negative and resolve it against the appellant.’]
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✓ DECISION:
‘Having resolved issues 1 and 2 against the appellant, I am of the view that no useful purpose would be served by considering the remaining issues. The failure to prove that the respondents were served with the originating processes in compliance with the order for substituted service renders the service ineffectual and liable to be set aside. I also agree with the Court below that the Fundamental Rights Enforcement Procedure was inappropriate in the circumstances of this case and affected the competence of the trial Court to hear the suit. The proceedings therefore amounted to a nullity and were rightly held to be so by the lower Court See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Having upheld the finding of the Court below in this regard, it follows that all other findings of the Court on the merit of the application were made obiter. The finding of the Court below that the suit is incompetent is upheld. I therefore hold that the appeal lacks merit and is hereby dismissed. The application for the enforcement of the appellants fundamental rights in Suit No. E/202M/2014 is hereby struck out for being incompetent. There shall be no order for costs.’
➥ FURTHER DICTA:
⦿ POSITION OF THE LAW ON SERVICE OF COURT PROCESS
My Lords, I deem it appropriate to commence the resolution of this issue by considering, briefly, the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida v. Ogunmola (2006) 6 SCNJ 165 @ 174 thus: “service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adetayo (2000) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Courts jurisdiction was not fulfilled.” To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); “Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.” The principle was re-stated in the recent decision of this Court in; Ihedioha v. Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F by Okoro, JSC: “… 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). Any beach of this principle (of fair hearing) renders the proceedings a nullity. See Chime v. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1. See also: Skenconsult (Nig) Ltd. v. Ukey (1981) 1 SC 6: Obimonure v. Erinosho (1966) 1 ALL NLR 250: Craig v. Kanseen (1943) K.B 256; National Bank (Nig) Ltd. v. Guthrie (Nig) Ltd. (1993) 3 NWLR (Pt.284) 643. It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto. — K.M.O. Kekere-Ekun JSC.
⦿ AN AFFIDAVIT OF SERVICE BY BAILIFF IS PRIMA FACIE PROOF OF SERVICE
The law is trite that an affidavit of service deposed to by the bailiff of a Court stating the Fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit, See: Schroder v. Major (1989) 2 NWLR (Pt.101) 3 @ 11 E – H; Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi v. Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC). The law is equally settled that the presumption of regularity in this regard is rebuttable. A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly. — K.M.O. Kekere-Ekun JSC.
⦿ WHERE EVIDENCE IS DOCUMENTARY, APPELLATE COURT IS AS GOOD AS TRIAL COURT IN EVALUATING
An appellate Court would ordinarily not interfere with the findings of a trial Court where that Court has carried out its duty of evaluating the evidence before it and ascribing probative value thereto. However, where the evidence is documentary, an appellate Court is in as good a position as a trial Court to evaluate same, where there is a complaint that the finding of the Court is not supported by the evidence before lt. See: Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369 @ 385 C; Obineche v. Akujobi (2010) 12 NWLR (pt.1205) 383 416 H. — K.M.O. Kekere-Ekun JSC.
⦿ USUAL PRACTICE WHEN APPLYING FOR SUBSTITUTED SERVICE
It is the usual practice when applying for substituted service to specify the name in which service is to be effected, the person on whom it is to be effected and where. The applicant chooses the vocation where he believes the processes are most likely to come to the attention of the person to be served. He may also request a particular mode of service, such as pasting at the party’s last known abode or place of business, by handing it to a named adult at a particular address or by publication in a widely circulating newspaper. The order would be made in accordance with the request. Having sought and obtained such a specific order, it cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court. — K.M.O. Kekere-Ekun JSC.
⦿ IMPORTANCE OF BAILIFF CARRYING OUT THE ORDERS OF COURT
On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola v. Kayode (1994) 2 NWLR (pt.324) 1 @ 19 – 20 G – A, where Olatawura, JSC (of blessed memory) stated thus: “This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual. Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order.” — K.M.O. Kekere-Ekun JSC.
⦿ IT IS THE CLAIMANT’S CLAIM THAT DETERMINES THE JURISDICTION OF THE COURT
It is settled law that it is the plaintiff or claimant’s claim that determines the jurisdiction of the Court to entertain a cause or matter. See: Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 588 – 589 H – C: Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76: Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v. Governor Gongola State (1989) 4 NWLR (Pt.117) 517. It was held in: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587 at 594 that a Court is competent when: a. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other; b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and c. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See also: Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at 62; Inakoju v. Adeleke (supra) @ 588 F. — K.M.O. Kekere-Ekun JSC.
⦿ IT IS THE PRINCIPAL RELIEFS THAT DETERMINES WHETHER TO COME UNDER THE RIGHT ENFORCEMENT RULES
Relying on the authority of Sokoto Local Government v. Amale (2007) 8 NWLR (Pt.714) 224 @ 240-241 G-A, learned senior counsel for the appellant argued that the procedure of filing different suits emanating from the same facts is permissible and has received judicial endorsement. It is noted that being a decision of the Court of Appeal, it is of persuasive authority only. Be that as it may, it was held in that case that the case before the Court was not for a breach of or threat to the respondent’s fundamental right but a claim in respect of land. The Court held that the only option open to the respondent in the circumstances was to take out a writ of summons. Reference was made to the decision of this Court in Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549 where it was held that in an application for the enforcement of fundamental rights it is a condition precedent that the enforcement of the fundamental right should be the main claim and not an accessory claim. It was further held per Ogundare, JSC at 576 – 577 H – F (supra) that where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly invoked, as the suit would be incompetent. Interestingly, in Tukur’s case, the main relief was for an order quashing the appellants deposition as the Emir of Muri by the Taraba State Government. Some of the grounds for seeking reliefs under the Fundamental Rights (Enforcement Procedure) Rules were that his right to fair hearing had been breached because he was not given an opportunity of being heard before the order to depose him was given; that he was not given any notice of misconduct pertaining thereto; that the decision did not comply with the conditions precedent to the exercise of powers of deposition by the Military Governor under Section 6 of the Chiefs (Appointment and Deposition) Law Cap 20 Vol. 1 Laws of Northern Nigeria 1963, applicable to Gongola State and was therefore null and void and of no effect. The appellant sought other reliefs including damages. The trial High Court held that it lacked jurisdiction to entertain some of the reliefs including relief 1 seeking to quash his deposition and sub-reliefs (a) to (c) and 2 on the ground that they raised chieftaincy questions, which ought to have been commenced by way of writ of summons. lt however granted the relief for damages. On appeal to the Court of Appeal, the decision of the trial Court was set aside on the ground that having found that it lacked jurisdiction to entertain the principal claims, it ought not to have assumed jurisdiction to entertain the other claims, which were merely accessories to the main claim. Upon a further appeal to this Court, it was held that the appellant ought to have come by way of Writ of summons in respect of all the reliefs. It also held that the proceedings were fatally defective, having not been initiated by due process of law. The proceedings were held to be a nullity. See also: Jack v. University of Agriculture (2004) 1 SC (Reprint) (Pt.II) 100 @ 112 lines 5 – 23. — K.M.O. Kekere-Ekun JSC.
⦿ FAIR HEARING UNDER THE 1999 CONSTITUTION VERSUS THE NATURAL JUSTICE PRINCIPLE
All administrative bodies, even though they are not Courts, are bound to observe the rules of natural justice and fairness in their decisions, which affect the rights and obligations of citizens. See: Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt.262) 641 @ 699 H. However, in order to seek to enforce his fundamental right to fair hearing provided for under Chapter IV of the Constitution, the alleged violation must be in respect of proceedings before a Court or Tribunal established by law and not before domestic or standing ad-hoc Tribunals. See: Ekunola v. C.B.N. (2013) 15 NWLR (1377) 224 @ 262 – 263 H – A. In Bakare v. L.S.C.S.C. (supra) @ 700 A – B, this Court, per Nnaemeka Agu, JSC had this to say: “The Courts in exercise of their power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, acts, decisions and transactions. In the exercise of the jurisdiction, the Courts can declare them invalid or ultra vires and void, not because they are unconstitutional in terms of Section 33 of the Constitution [now Section 36 of the 1999 Constitution], but because they offend against the rules of natural Justice of audi alteram partem or nemo judex in causa sua, or offends against the rules of fairness, or otherwise offends the rule of natural justice. All these are in the realm of administrative and not constitutional law. The great divide is that Section 33 deals with judicial bodies and does not necessarily extend to all bodies not judicial but all the same deciding on rights and obligations.” — K.M.O. Kekere-Ekun JSC.
⦿ WHEN A DEFENDANT DESIRES TO OBJECT TO PROCEEDINGS
This Court had in the case of Adegoke Motors Ltd v. Adesanya and Anor. (1989) 3 NWLR (pt. 109) 250, this Court held as follows: “When a defendant desires to object to regularity of proceedings by which the plaintiff seeks to compel his appearance, he may, by leave of Court, enter a conditional appearance or an appearance under protest and then apply to the Court to set aside the said plaintiffs proceedings or he may, without entering an appearance, move to set aside the service of the writ.” See Nwabueze v. Obi-Okoye (1998) 4 NWLR (Pt. 91) 664. — M. Peter-Odili JSC.
⦿ BREACH OF FAIR HEARING (SECTION 36) CANNOT BE CHARGED AGAINST A NON-JUDICIAL BODY
In Ekunola v. CBN (2013) 15 NWLR (pt. 1377) 224 at 262, paras G – H, this Court held as follows: “Besides, Section 36(1) (supra) arises where the denial of fair hearing has been charged against a Court or tribunal established by law and not before domestic or standing ad-hoc Tribunals raised departmentally by parties as the 1st respondent here. The implication of the above is that, there would be no case of infringement of the right to fair hearing under Section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing is that of a non-judicial body. In Bakare v. L.S.C.C. (1992) 8 NWLR (pt.266) 641 at 699 – 700. paras H – B, this Court had this to say of Section 33(1) of the 1979 Constitution, a provision impari material with Section 36 (1) of the 1999 Constitution “The Courts in exercise of their Power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, acts, decisions and transactions. In the exercise of the jurisdiction, the Courts can declare them invalid or ultra vires and void not because they are unconstitutional in terns of Section 33 of the Constitution but because they offend against the rules of natural justice of audi alterem partem, or nemo judex in causa sua, or offend against the rules of fairness, or otherwise offend against the rules of natural justice. All these are in the realm of administrative and not constitutional law. The Court can by its power of judicial review set them aside. The great divide is that Section 33 deals with judicial bodies and does not naturally extend to bodies not judicial but all the same deciding on rights and obligations.” — M. Peter-Odili JSC.
⦿ A WITNESS WHO HAS INCONSISTENT PIECES OF EVIDENCE CANNOT BE DESCRIBED AS TRUTHFUL
The law is settled that a witness who has two materially inconsistent pieces of evidence on oath by him on the same issue or print of fact does not deserve to be believed or given the honor of credibility. He also does not deserve to be described as truthful. See AYANWALE v. ATANDA (1988) 1 NWLR (pt.68) 22; MONOPRIX (NIG) LTD. v. OKONWA (1995) 3 NWLR (pt.383) 325; BAYO AREMU v. DANIEL GEORGE CHUKWU (2011) LPELR – 3862(CA). A person who speaks differently from two corners of his mouth on oath and on the same matter is a perjurer who does not deserve to be credited with any honor. The bailiff had gone out to deliberately insubordinate the explicit Court order and thereafter went out to desecrate his office by filing blatantly false affidavits of service. The Court, in the circumstance, cannot pick and choose which of the two affidavits to believe or disbelieve. See BOY MUKA v. THE STATE (1976) 10 SC 305; ALFRED ONYEMENA v. THE STATE (1974) ALL NLR 523. It would be perverse for the Court to hold that the materially conflicting affidavits of service of the bailiff had proved or established that the bailiff did the service of the originating processes as demanded of him by law or the Court order. Orders of Court are meant to be observed or carried out. — Ejembi Eko JSC.
⦿ CONNOTATION OF THE RIGHT TO ASSOCIATION
The right under Section 40 of the Constitution, the right to assemble and freely associate with others, works both ways. The others you want to associate with must be prepared to associate with you. None can be imposed, by order of Court, on the other. The right to freedom of association also connotes the right of the others to freely associate with or dissociate from whosoever. — Ejembi Eko JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief (Mrs) A.Z. Offiah.
⦿ FOR THE RESPONDENT(S)
Chief Kanu Agabi, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ BAILIFF MUST SERVE IN ACCORDANCE WITH ORDERS OF COURT (SUBSTITUTED SERVICE)
In Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 at 19- 20 paras G – A, this Court had this to say: “Since the lower Court ordered a personal service on the defendant, any other service not in accordance with the order of Court was not a proper service. This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with the order of Court. Where a personal service is ordered, he must serve that person personally. Where a substituted service whether by pasting at the last known abode of the person required to be served, or by a publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual.”
Further at page 21 para F of Odutola v. Kayode (supra), this Court continued: “To effect personal service of Court process on a party, the bailiff or any officer of Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave a Court process with person who works with the same office with the defendant, as was done in this case, even if the latter undertakes to convey it to the appellants.”
➥ REFERENCED (OTHERS)
