In the Supreme Court
Holden at Abuja
Friday, 02 June 2017
Suit Number; SC. 532/2015
HON. BAYO ADEGBO Appellant
1. HON. GODWIN OSIYI Respondent
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(DELIVERED BY WALTER SAMUEL NKANU ONNOGHEN, CJN)
I have had the privilege of reading in draft the lead Judgment of my learned brother, MUHAMMAD JSC just delivered. I agree with his reasoning and conclusion that the appeal is incompetent and consequently liable to be struck out.
Learned counsel for 1st respondent raised a preliminary objection to the competence of the appeal which he argued in the 1st respondents brief of argument. It is the contention of the 1st respondent that appellant failed to serve the notice of appeal on 1st respondent as required by the Rules of Court thereby depriving the court of the jurisdiction to hear and determine the appeal particularly as the address of the parties interested in the appeal were also not stated in the notice of appeal.
We have confirmed from the record that there is no legally admissible affidavit evidence to support the contention of learned counsel for appellant that the notice of appeal was duly served on the 1st respondent and consequently hold the omission a fundamental defect which vitiates the jurisdiction of the court. The non service of the notice of appeal on 1st respondent has resulted in the denial of 1st respondents right to fair hearing as constitutionally guaranteed in the Constitution of the Federal Republic of Nigeria, 1999, as amended.
In conclusion, I too find the appeal incompetent for lack of service of the notice of appeal on 1st respondent and consequently strike same out.
I abide by the consequential orders made in the said lead Judgment including the order as to costs.
Appeal struck out.
(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
This is an appeal against the judgment of the Court of Appeal, Abuja Division, delivered on the 4th November 2016 affirming the ruling of the Federal High Court Sitting at Lokoja, dated 15th November 2015. The brief facts of the case that brought about the appeal are as hereinunder supplied.
The 2nd respondents primary election for the nomination of its Ogori/Magongo Kogi State Constituency candidate in the 11th April 2015 House of Assembly General Elections, eventually held on 11th December 2014. With the victory of the 1st respondent at the primary election, the 2nd respondent forwarded his name to the 3rd respondent, the Independent National Electoral Commission, as the partys candidate in respect of the Ogori/Magongo State Constituency in the forthcoming House of Assembly General Election. Aggrieved by this turn of events, the appellant, by way of an originating summons at the Lokoja Division of the Federal High Court, challenged the nomination of the 1st respondent as the 2nd respondents candidate at House of Assembly election in respect of the Ogori/Magongo State Constituency.
In addition to contesting appellants claim, the 1st respondent by way of preliminary objection challenged the competence of the suit. In its ruling of 19th November 2015, the trial court sustained the objection and struck out the suit for want of jurisdiction. Dissatisfied, the appellant appealed against the ruling at the Court of Appeal, Abuja Division, hereinafter referred to as the court below. In a considered judgment delivered on 4th November 2016, the court sustained the trial courts decision and dismissed appellants appeal. The appellant has now appealed against the judgment of the Court of Appeal upon his notice filed on 17th November 2016.
Having issued a notice of preliminary objection against the competence of the appeal, the 1st respondent proceeded to argue the objection in his brief of argument settled by Emeje Aruwa Esq of counsel. Appellants reply brief, which was like his main brief, settled by Ameh Anthony Prince Esq, contain his response to the 1st respondents arguments in respect of the preliminary Objection to the competence of the appeal.
Jurisdiction, this Court has held in a plethora of cases, is the very basis on which any court or tribunal, including the apex Court, tries a case. It is the lifeline of all trials as a trial without jurisdiction is a nullity. In order to save time and costs and to avoid a trial of a nullity, 1st respondents preliminary objection will be determined first. See NDIC V. CBN and anor (2002) 3sc, Petrojessica Enterprises Ltd V. Leventis Technical Company Ltd (1992) LPELR-2915 (SC).
In the preliminary objection, the 1st respondents seeks the following:-
1. An order striking out this appeal, the Appellant having failed to serve the Notice of Appeal on the 1st respondent as required by the Rules of this Court.
2. An order striking out this Appeal for want of jurisdiction as the Appellants Notice of Appeal filed is defective and incompetent having failed to state the address of the parties interested in the appeal as mandatorily required by the Supreme Court Rules.
3. An order striking out Grounds 1, 2, 5 and 6 of the Notice of Appeal.
The Court of Appeals judgment being appealed against, learned counsel submits, was delivered on the 4th of November 2016. Since that date, on Notice of Appeal, it is further submitted, is served on the 1st respondent to notify him on any pending appeal in the matter. The 1st respondent, it is contended, is only served, so far, with the already compiled record of appeal and the appellants brief of argument.
Appellants failure to serve his notice of appeal to this Court on the 1st respondent, it is submitted, is fatal to the jurisdiction of the court to entertain the appeal having not been initiated by the due process of the law. Order 2 Rule 3 and 4 of the Supreme Court Rules, learned counsel argues, makes it mandatory for the notice of appeal to be served on all the respondents. A breach of the rules, it is argued, is not a mere irregularity but a fundamental breach as the notice is at the foundation of the appeal. Relying interalia on Rossek V. ACB Ltd (1993) 8 NWLR (Pt 312) 382 at 437, Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt III) 552 at 556, Popoola V. Babatunde (2012) 7 NWLR (Pt 1299) 302 at 331 and M. C. Investment Ltd V. C. And C.M. Ltd (2012) 12 NWLR (Pt 1313) 1 at 20.
Further relying on Order 8 rule 2(7) Of the Supreme Court Rules, and Uwazurike V. AG Federation (2007) 8 NWLR (Pt 1035) 1 at 17, and Odunze V. Nwosu (2007) 13 NWLR (Pt 1050) 1, learned counsel submits that the notice of appeal does not also reflect the names and addresses Of all parties directly affected by the appeal thereby standing in further breach of Order 8 rule 2(1) and (6). Being the substratum of the appeal, it is submitted, these defects have cumulatively rendered the appeal incompetent and should be so held.
In further argument, it is submitted that no issues have been formulated from appellants 1st, 2nd and 6th grounds and same, on the authority of Mbeledoju V. Aneto (1996) 2 NWLR (Part 429)15 at 165, Onifade V. Olayiwola & ors (1990) 7 NWLR (Pt 161) 130 and Ndiwe V. Okocha (1992) 7 NWLR (Pt 252) 129 should be deemed abandoned. Ground 5, on the other hand, it is contended, does not arise from the judgment appealed against. Since the ground purports to raise and attack an issue that is not decided by the judgment on appeal it is incompetent. Relying interalia on Hon. Minister of Works and Housing V. Tomas (Nig) Ltd & ors (2002) FWLR (Pt 124) 465 and Mercantile Bank of Nigeria Plc and anor V. Nwobodo (2005) 7 SC (Pt III) 1 at 46, learned counsel submits that the issue be struck out.
On the whole, the incompetent appeal, it is urged, be equally struck out.
Appellants response to the preliminary objection is as contained in his reply brief to the 1st respondents brief. Therein, it is argued that the preliminary objection is misplaced, unfounded and smirks of technicality. The bailiff of the court below who effected service on all the respondents, it is submitted, swore to an affidavit of service of the notice of appeal copies of which are in the file of the instant appeal. The 1st respondent gave the name and address of his counsel and if the counsel has ceased to be retained he has the duty to notify the court. The 1st respondent was served through his counsel on record and this, by the decision in FBN Plc V. TSA Industries Ltd (2007) 1 FWLR (Ft 358) 1449 is good and effective service.
In further response, learned counsel submits that the 2nd arm of 1st respondents Objection on appellants failure to state the names and address of the persons directly affected by the appeal has been held to be a mere irregularity which does not void the notice Of appeal or render it incompetent. Learned counsel refers to Amata V. Omogume (1997) 2 NWLR (Pt 485) 93, Ajayi V. Military Adm, 0ndo State (1997) 5 NWLR (Pt 504) 237 and Odi V. Osafile (1987) 2 NWLR (Pt 57) 510.
Concluding, it is submitted that it is not the law that an appellant must distill an issue from each of his grounds of appeal. It suffices if he distills an issue from a combination of his grounds of appeal. Appellants issues, it is further contended, are formulated from all the grounds of appeal which directly attack the judgment appealed against. Citing the decisions in lmonikhe V. AG, Bendel State (1992) 6 NWLR (Pt 248) 396, Kalu V. Odili (1992) 6 SCNJ (Pt 1) 76 at 93 and Ndukewe V. State (2009) 2 SCNJ 223 learned counsel submits that the 3rd arm of 1st respondents objection be discountenanced.
On the whole, it is contended, the Objection which lacks merit should be dismissed.
1st respondents preliminary objection draws its strength from its first arm, the fact of the non service of the notice of appeal on the 1st respondent. I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that non-service of the notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as, being fundamental, it robs the appellate court the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the notice of appeal is, is a sine qua non for a court to assume jurisdiction over a case. In S.G.B.N. Ltd V. Adewunmi (2003) LPELR-3081 (SC); (2003) 10 NWLR (Pt 829) 526 this Court restated its concerns thus:
Service of on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the court seised of the matter. Clearly clue 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.
In the case at hand, learned counsel to the 1st respondent would, therefore, be right to insist that this Court lacks the jurisdiction to hear and determine this appeal if indeed the notice of appeal is established not to have been served on the 1st respondent: Obimonire V. Erinosho (1966) 1 ALL NLR 250 at 252, Tukur V. Government of Gongola State (1988) 1 NWLR (Pt 68) 339 and Josiah Cornelius Ltd & ors V. Chief Cornelius Okeke Ezenwa (1996) 4 NWLR (Pt 443) 391.
Learned appellants counsel asserts that the notice of the instant appeal has been served on the respondents and that an affidavit of service abides in the courts files. Does it?
Sections 108, 109, 113 and 117(4) of the Evidence Act 2011, provide for the type of affidavit which, given the extant circumstances, shall avail the appellant. The Sections read;-
Section 108 Before an affidavit is used in the court for any purpose, the original shall be filed in the court, and the original or an office copy shall alone be recognised in the court.
Section 109 Any affidavit sworn before any judge, officer or other person duly authorized to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible.
Section 113 the court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person authorized.
Section 117(4) An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken. (Underlining supplied for emphasis).
A community reading of the foregoing reveals that only the filed original of the affidavit the appellant seeks to rely on in establishing the fact of service of his notice of appeal on the 1st respondent or an office copy of the original shall suffice.
Most importantly, the affidavit must be sworn to and Signed or marked by the deponent before the authorized person or officer. By these requirements of the law, an unsworn and unsigned affidavit is worthless. In the absence of the swearing by the deponent, therefore, the declaration will not be as worthy as the paper on which it is made. The person before whom the oath is subscribed must so endorse on the affidavit by indicating, in addition to the official stamp, his name. See Maraya Plastic Industries Ltd V. Inland Bank of Nigeria Plc (2002) FWLR (Pt 120) 1732 at 1737, Oparugo V. Oparugo (2008) 5 NWLR (Pt 1081) 574, Amigo V. Nwoke (2010) 1 NWLR (Pt 1176) 600 and Onujabe V. Idris (20120 (Pt 1284) 285.
A declaration by one Emeka John, a bailiff, asserting the fact of service on the 1st respondent abides in the courts records. It is made on the 23rd November 2017 and purports to have been sworn to before a commissioner for oath who is the authorized Officer. The declaration however neither bears the authorized Officers name and signature nor the official stamp of the Office of the commissioner of oath before whom the oath is said to have been subscribed to. In the circumstance the declaration cannot be said to have been sworn to as required by law. Being an unsworn declaration it is not, in the eyes of the law, the affidavit of service learned appellants counsel asserts it is. The fundamentally defective affidavit cannot evidence the fact of service of the notice of appeal on the 1st respondent. Effective service of the notice of appeal, I agree with learned counsel to the 1st respondent, is a condition precedent to the exercise of jurisdiction by this Court. Absence of such service, it follows, is a fundamental omission which bars the court from assuming jurisdiction to hear and determine the appeal. Proceeding inspite of the non service of the notice of appeal will constitute a denial of the 1st respondents right to fair hearing as guaranteed under Section 36 of the 1999 Constitution. See Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 595 and Estate of Late Chief I.S. ldisi V. Ecodril Nigeria Limited & ors (2016) LPELR-40438 (SC).
For the foregoing, 1st respondents preliminary objection is well taken. It succeeds and is hereby sustained. Resultantly, the incompetent appeal is hereby struck out.
Parties shall bear their respective costs.
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUNl JSC)
I have had the benefit of reading in draft, the judgment of my learned brother, MUSA DATTIJO MUHAMMAD, JSC just delivered. I agree with the reasoning and conclusion that this appeal is incompetent and should be struck out.
The 1st respondent herein has raised a preliminary objection to the hearing of this appeal on three grounds, namely:
1. That the Appellant failed to serve the Notice of Appeal on him as required by the Rules of this
2. That the Notice of Appeal is defective and incompetent, having failed to state the addresses of the parties Interested in the appeal, a mandatory requirement under the Rules of this Court.
3. That grounds 1, 2 and 6 of the Notice of Appeal should be struck out as no Issues were formulated therefrom. It is also contended that ground 5 should be stuck out as it does not arise from the judgment appealed against.
The most fundamental of the grounds of objection is the first ground. This is because the Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the appeal rests. Being an originating process, it is a fundamental requirement not only of the Rules of this court but also of the constitutional right of fair hearing guaranteed under Section 36(1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to react thereto and place his own side of the case before the court. In an appeal, service of the notice of appeal on the respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of this court.
Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the courts jurisdiction to adjudicate. I agree with my learned brother, M.D. Muhammad, JSC that there is no legally acceptable evidence in the record before us to show that the 1St respondent was duly served with the Notice of Appeal. The failure has rendered the appeal before this court incompetent thereby robbing the court of jurisdiction to entertain it. The preliminary objection is well founded and accordingly sustained. The appeal is hereby struck out.
The parties shall bear their respective costs in the appeal.
(Delivered by EJEMBI EKO, JSC)
My learned brother, MUSA DATIJJO MUHAMMAD, JSC, made available to me, before now, the draft of the judgment just delivered. I agree with him on all the issues resolved in the appeal.
Let me add that there is a purpose for the requirement that the Notice of Appeal shall be served on the respondent as soon as it was filed. See Order 2 Rule 3 (1) (b) of the Rules of this Court. The purpose is for the respondent to be notified that the appellant is challenging the correctness of the judgment given to the respondent by the court below and for him to prepare his defence thereto. It serves the purpose of andi alteram partem, and so it is Constitutional and one of the pillars of fair hearing.
The effect of nonservice on the respondent of the Notice of Appeal is that it deprives the respondent the opportunity he has to file Notice of cross-appeal within the time stipulated. It also deprives him of the opportunity of participating in the settlement of the record of appeal. Order 7 Rules 7 of the Supreme Court Rules provides
7 (1) The appellant shall, in appeals to which this Rule applies either simultaneously with the filing of his notice of appeal or within I4 days thereafter, prepare for the use of the Justices a record comprising
a) The index
b) Office copies of documents and proceedings which the appellant considers relevant to the appeal and;
c) A copy of the notice of appeal.
(2) If the respondent considers that the documents and proceedings filed by the appellant are inaccurate or are not sufficient for the purposes of the appeal, he shall, within a period of 7 days after service on him of the record filed by the appellant, file any further or other documents that he wishes to file.
(3) All documents filed by either party shall be verified by the affidavit of a person who has read them and compared them with authentic or certified true copies.
(4) In the case Of the documents and proceedings mentioned in rule 7 (1) (b) and (c) Of this order, the party filing shall lodge certified true copies thereof with the Registrar of the Court.
I should think that any conduct of a litigant calculated or designed to undermine the statutory right of his opponent in litigation should be assumed or presumed to be malicious and that he did so not only to secure for himself an undue advantage, but also to cause miscarriage of justice to his adversary. This is why in the court of justice the rule is: he who comes to justice must come with clean hands.
Justice is not a game of hide and seek. The appellant who engages in a game of surprise and attack must be prepared for the full wrath of the court of justice if it turns out that he had not been fair to his adversary.
I allow the preliminary objection. I adopt the reasons given in the lead judgment to sustain the objection. The appeal being incompetent is hereby struck out. I also make no order as to costs.
(DELIVERED BY SIDI DAUDA BAGE, JSC)
I have had the benefit of reading in draft the lead Judgment of my learned brother Musa Dattijo Muhammad, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I will onlyb add a few words of my own.
It is settled law, that the proof of service of processes on all parties to the suit before the Court is the factor which confers jurisdiction Of the Court on the parties. In the absence of proof of service, the Court acts in vain, and the proceedings a nullity.
However, section 36(2) of the Constitution of Nigeria 1999 provided that an opportunity should be provided for a person whose rights and Obligation may be affected to make Representation to the administration of authority before that authority makes decision affecting that person.
For the more detailed reasoning contained in the lead Judgment, the ?rst Respondents preliminary Objection succeeds and is hereby sustained.
Ameh Anthony Prince with Reuben Egwuaba, and G. Edoh, for the Appellant.
Emeje Aruwa with Alex Audu, and E.A Ekpa, for 1st Respondent.
Sean Francis Kennedy Akaolisah, for the 2nd Respondent.
T.M Inuwa with Goni A. Ismail, Bashir M. Abubakar and I.S Mohammed, for 3rd Respondent