Rt. Hon Emeka Ihedioha & Anor V. Owelle Rochas Anayo Okorocha & Ors (2015)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the judgment of the Court of Appeal sitting at Owerri wherein the lower Court struck out the appellants’ appeal for the incompetence of the notice of appeal. The said notice of appeal can be found on pages 631 – 640 of the record of appeal.
The appellants’ appeal at the lower Court was against the ruling of the Governorship Election Tribunal, Owerri delivered on 22/7/2015 which dismissed their petition 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).
The facts leading to this appeal further disclose that during the hearing of the objection before the Tribunal, the 11th respondent, supported the preliminary objection while the 13th, 14th, 25th, 30th and 31st respondents supported the contrary position held by the petitioners.
That despite the open expression of interest by the 11th, 13th, 14th, 25th, 30th and 37th respondents in the outcome of the objection, the appellants in their notice of appeal, left out the
names of the 2nd 36th respondents from the list of parties directly affected by the appeal as required by Order 6 Rule 2 of the Court of Appeal Rules. 2011.
Also the appellants equally failed to endorse the notice of appeal with the addresses for service on the 2nd – 36th respondents.
It was partly for the above failings that the 1st and 37th respondents, in filing their brief of argument to the substantive appeal at the lower Court, incorporated therein, a preliminary objection to the competence of the appeal.
On 21st August, 2015 when both the preliminary objection and the appeals came up for hearing by the Court below, the Registrar of the Court, immediately after the Court had taken appearances of counsel, announced to the Court as follows:
“Confirmed that all the respondents were served”
Moreso, even the brief of argument the appellants “served” on the 3rd, 4th, 6th, 12th, 15 – 24th, 26th – 29th, 32nd – 36th respondents were simply deposited at the office of the 37th respondent at Owerri. The Court below in its judgment observed that it was shown an affidavit which showed that the Bailiff dumped copies of the notice of
appeal for the 3rd, 4th, 6th, 12th, 15th 24th, 26th 29th, 32nd the 36th respondent with the Protocol Officer of the APC, the 37th respondent on 28th July, 2015.
The hearing notices for the proceedings of 21/8/15, which was the day the preliminary objection and the appeals were heard, were equally served in the same manner as above as can be seen on pages 899 – 905 of the record.
In its judgment delivered on 3/9/15, the lower Court held that the notice of appeal was fundamentally defective for not being endorsed with the addresses for service. The Court equally made vital findings in the judgment including the fact that the 2nd to 36th respondents were parties directly affected by the appeal and that their exclusion from the list of parties in Paragraph 5 of the notice of appeal who were said to be directly affected by the appeal was wrongful. The Court below therefore, struck out the appeal for being incompetent.
Dissatisfied with the order of the lower Court striking out their appeal, the appellants filed three notices of appeal on 4/9/15, 10/9/15 and 14/9/15 respectively.
However, at the hearing of this appeal, the
appellants adopted the notice of appeal filed on 14/9/15 which contains thirteen grounds of appeal for the prosecution of this appeal. Out of these grounds of appeal, the learned senior counsel for the appellants, Chief M.I. Ahamba, SAN, leading other counsel, has distilled seven issues for the determination of this appeal. The issues are as follows:-
- Whether the Court of Appeal had the competence to re-visit 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. (Grounds 7 and 12).
- Whether there was a flagrant non-compliance with Order 2 Rule 3 and Order 6 Rule 2(1) of the Court of Appeal Rules by the appellants as held by the Court of Appeal or at all. (Ground 1, 2, 3, 4 and 5).
- 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. (Ground 6 and 8).
- 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. (Ground 9).
- Whether the striking out of the notice of appeal on ground of incompetence was proper. (Ground 10).
- 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. (Ground 11).
- 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. (Ground 13).
In the brief of the 1st and 37th respondents, learned senior counsel, Adeniyi Akintola, SAN, leading others had adopted the seven issues formulated by the appellants. There is no need to reproduce them again having done so earlier.
For the 2nd respondent, its senior counsel, G.S. Paul, SAN., with others distilled four issue thus:
- Whether the lower Court was wrong in considering and determining the issue of service which is a
threshold matter bordering on jurisdiction.
- Whether the Court below was in error in its holding that the notice of appeal before it, not being in compliance with Order 2 Rule 3 and Order 6 Rule 2(1) was incompetent.
- Whether 3rd – 36th respondents, being named parties in the appeal before the lower Court and the Trial Tribunal:
(a) were not persons directly affected by the appeal; and
(b) entitled to be served with the notice of appeal.
- Having regard to the fact that:
a. The notice of appeal before the lower Court was held to be incompetent; and
b. The Tribunal did not make any pronouncement on the merit of the 2 motions, whether it was necessary for the Court below to pronounce on same therein.
Chief Bankole Falade, representing the 11th respondent in this appeal, has submitted three issues for the determination of this appeal, the first of the issues being:
“Whether non service of the Notice of Appeal and other processes in this appeal on the 11th respondent did not constitute breach of the Rule of their hearing and rob the Supreme Court of the necessary jurisdiction to entertain the appeal.”
2 and 3 are really as couched and contained in the appellants’ brief.
Also the 15th, respondent represented by Olukayode Enitan, Esq., the 17th by Victor Opara, Esq., the 33rd by Doyin Rhodes-Vivour (Mrs) and the 34th represented by John Olusegun Odubela Esq., all filed their briefs and raised similar issues which I shall resist the temptation of reproducing them here. This is to avoid making this judgment unnecessarily verbous. I shall however refer to any of the issues where need arises in the course of this judgment.
The 5th, 13th, 14th, 24th, 30th and 31st respondents though represented by counsel at the hearing of the appeal, did not file any brief and had nothing to urge on the Court.
However, these respondents i.e 3rd, 4th, 6th- 10th, 12th, 16th, 18th – 24th, 26th 29th, 32nd, 36th – 36th were absent and adjudged not to have been served with hearing notice and other processes The learned senior counsel for the appellants applied orally to withdraw the appeal against them. As there were no objections from counsel in the appeal, this Court on 22/10/15 being the date this appeal was taken, dismissed the appeal against those
respondents. Thus, this appeal was heard between the appellants and the respondents who were in Court already highlighted above. I shall determine this appeal based on the Appellants’ seven issues.
In his argument on the first issue learned senior counsel for the appellants submitted that striking out notice of appeal is not a sanction envisaged in Order 2 Rule 3 of the Court of Appeal Rules and that, to offend the said rule of Court, there would have been no proof of service of the notice of appeal. It is his further assertion that the purpose of inserting that particular rule is to ensure that parties are served the process and no more.
The learned SAN opined that it is not about the content of a notice of appeal or any other notice to be served under the Rules of the Court of Appeal.
On whether the respondents were found by the Court to have been served, he referred to Page 907 of the record whereat it was stated by the registrar that all the respondents were served. He noted that none of the 3rd – 36th respondents complained about non-service but that it was counsel for the 1st and 37th respondents who raised the issue of lack of
endorsement of address tor service on the 3rd – 36th respondents who are not his clients.
In conclusion, senior counsel submitted that, having concluded the investigation on service and placed the result from the judicial inquiry on record, and there being no respondent protesting non-service, the Court below had become functus officio on the issue of service, and should not have delved into it at the instance of counsel for the 1st and 37th respondents or suo motu, He cited and relied on the cases of Okafor V. Attorney General of Anambra State (1991) 6 NWLR (Pt. 200) 659 at 672, and First Bank of Nigeria Plc V. TSA Industries Ltd (2010) 15 NWLR (Pt. 1216) 247 at 296 C D.
In his response, the learned silk for the 1st & 37th respondents Adeniyi Akintola, SAN, submitted that there is nowhere in the record of appeal where the Court below made any comment either before or after the registrar made the above announcement. He argued that it is fallacious for the appellants to read from nowhere into the proceedings of 21/8/15 the assertion that the Court below conducted an open inquiry as to the service of notice of appeal in issue.
learned SAN contended that considering that the 1st & 37th, respondents had long before 21/8/15 raised an objection to the competence of the notice of appeal, based on the ground that it was not endorsed with addresses for service in line with Order 2 Rules 2 & 3 of the Court of Appeal Rules, 2011, and that the objection was coming up for hearing that day, the only probable meaning to the registrar’s statement is that the hearing notice for the day’s hearing was served on all the respondents referring to the affidavit of service in the record of appeal on Pages 899 – 905 thereof.
The learned senior counsel submitted finally that the statement of the registrar cannot by any stretch of the imagination be interpreted to mean a decision of the Court. And, on what constitutes a decision of the Court, he cites and relies on the case of Ibori V. Ogboru & Ors (2004) 15 NWLR (Pt. 895) 154 at 178 – 181. Moreso, that the appellants never raised this issue at the Court below.
It is a new issue, he asserted and wondered why it can be raised here without leave, resting on the case of Kwajaffa & Ors V. Bank of the North Ltd 18 NSCQR 543 at 560. He
urged the Court to rule against the appellants on this issue.
The 2nd respondent and others have touched on this issue and their views are as expressed by the 1st and 37th respondents.
Now, the pith and substance of issue one is a complaint by the appellants that the Court below, having taken a decision that all the respondents were served, had become functus officio and has no jurisdiction to re-open the matter as was allegedly done by the Court below. The said decision is that contained on page 907 of the record. It states:
“REGISTRAR: Confirmed that all the respondents were served.”
Was the above statement a decision of the Court Let us examine the record to see what happened immediately before the registrar’s statement alluded to above. The record bears out that just before the statement was made, appearances of counsel are recorded. There is neither an enquiry by the Court nor from any counsel before the statement of the registrar. Again, after the statement, there is no comment by the Court in respect of the said statement.
Under Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the word
“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. Does the Registrar’s statement fit into the said definition I do not think so. Had the Court independently ruled on the statement of the registrar as to whether it was satisfied or not that all the respondents were duly served, I would have held otherwise. 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.
There is nothing on record to support the appellants’ claim that the registrar’s statement was a decision of the lower Court
on the issue of service of processes for which it became functus officio and could not re-open it. For me, the first issue does not avail the appellants at all and I accordingly resolve same against them.
The learned senior counsel for the appellants argued issues 2, 3 and 6th together. However, the 1st & 37th respondents’ senior counsel responded by taking issues 2, 3, 4, 5 and 6 together. After reading the issues once again, I think it is very convenient and reasonable to take issues 2, 3, 4, 5 and 6 together since the arguments in support of them are inter woven and interrelated.
As to whether there was a flagrant non-compliance with Order 2 Rule 3 and Order 6 Rule 2(1) of the Court of Appeal Rules as held by the lower Court, the learned senior counsel for the appellants submitted that the decision of the Court below that Order 6 Rule 2(1) requires that every notice of appeal shall have endorsed on it an address for service of the notice of appeal on every respondent in the appeal is a gross misdirection of both law and fact. According to him, it is a misdirection of law in that it substituted the words of the provisions i.e “persons directly
affected by the appeal” with “every respondent”. He submitted that a judge cannot completely substitute its own words for the words of the statute or document being interpreted, relying on the cases of Obi V. INEC (2007) 11 NWLR (Pt.1046) 643 C – F, Aqua Ltd V. Ondo State Sports Council (1988) 4 NWLR (pt. 91) 622 at 641 E. He argued that this substitution coloured the minds of the Justices of the Court below who ignored the names and addresses of persons directly affected by the appeal duly endorsed in Paragraph 5 of the notice of appeal in search of names and addresses of every respondent in the appeal which informed the ultimate decision of the Court.
Learned senior counsel further submitted that the Court below erroneously read into Order 6 Rule 2(1) the words of Order 2 Rule 3 of the Court of Appeal Rules, 2011.
Which provides that “where under these Rules any notice or other process is required to have an address for service endorsed on it shall not be deemed to have been properly filed unless such address has been endorsed on it.”
It was contended for the appellants that the act of the lower Court in striking out the notice of appeal
suggests that even in a situation where all the respondents were shown to have been served, the non endorsement of addresses would still render the notice of appeal void.
This, according to him amounts to applying rules of Court slavishly, relying on Atiku Abubakar V. Yar’adua & Ors (2008) 4 NWLR (Pt 1078) 465. He opined that rules of Court though meant to be obeyed, are not sacrosanct like provisions of statutes even where mandatory, citing the case of Katto V. CBI (1991) 9 NWLR (Pt. 214) 26 at 147 A D.
Furthermore, he argued that even if the names and addresses of persons directly affected by the appeal were not endorsed on the notice of appeal, it cannot vitiate the Process. That as long as the respondent is served with the process, non-endorsement of address for service is an irregularity, citing the following cases.
Sterling Civil Engineering Nig. V. Philip Nwosu (2008) ALL FWLR (Pt. 413) 1399 at 1418 paras A – B, Texaco Nig. Plc V. Lukoko (1997) 6 NWLR (Pt. 510) 651. He urged the Court to resolve these issues in favour of the appellants and hold that since all the respondents were served, the non-endorsement of names and
addresses for service were a non issue.
In response to the above arguments, the learned senior counsel for the 1st & 37th respondents submitted that although an aggrieved party who lost a valid decision of a Court has a constitutional right to appeal against that decision, such right is not absolute or at large. It must be exercised within Provisions of all the enabling laws which, according to him the appellants herein have failed to do, referring to the cases of Attorney-General of the Federation V. ANPP & Ors (2003) 15 NWLR (Pt. 844) 600 and TRO V. Ech-Ewendu (1996) 8 NWELR (Pt. 468) 629 at 635 para. H.
Referring to Order 2 Rules 2 & 3 of the Court of Appeal Rules 2011, he submitted that the provision is emphatic on the effect of not endorsing an address for service on a notice of appeal which is: that such process “shall not be deemed to have been properly filed unless such address has been endorsed on it.” He submitted that the implication of failure to endorse the address for service is that the notice of appeal is incurably defective.
Furthermore, it was argued that it does not lie in the mouth of the appellants to determine
those directly affected by the appeal as the Court below held that all the respondents were parties directly affected and that was why the lower Court equated “all parties” with “every respondent” as rendered in Order 6 Rule 2(1).
According to learned senior counsel, service of Court process is a sine qua non to the adjudicatory competence of the Court. That any adjudication without service of process is a nullity, citing these cases: Wimpey V. Balogun (1986) 3 NWLR (Pt. 28) 324, National Bank V. Guthrie Ltd (1987) 2 NWLR 255. He further submitted that a person is not given fair hearing if he is shut out of the proceedings he is made a Party, referring to Tunbi V. Opawole (299) 1 SCNQR I.
Learned senior counsel finally submitted that the remark by the Court below that the failure to serve the 2nd – 36tth respondents was calculated to delay the hearing of the petition is an obiter and not a decision to be appealed against. He urged the Court to resolve these Issues against the appellants.
Learned senior counsel for the 2nd respondent submitted in the main that notice of appeal is an originating process and therefore must not only have endorsed
on it addresses for service as an essential component, but must also be served personally on the respondents. That where notice of appeal is not served, as in this case, the Court is bound to strike it out learned senior counsel cited the following cases:
Wimpey V. Balogun (supra), Tunbi V. Opawole (supra) Anadi V. Okoli (1977) 7 SC 57, Okonkwo V. INEC (2004) 1 NWLR (Pt. 854) 242 etc.
He urged this Court to hold that the court below was right in striking out the notice of appeal because it lacked jurisdiction to hear the appeal, the 2nd respondent having not been served at all.
The learned counsel for the 11th respondent and other counsel were so emphatic that the failure to serve notice of appeal on 11th, 15th, 17th, 25th, 30th, 31st, 33rd and 34th respondents constitute breach of the Rule of fair hearing and robbed both the Court of Appeal and this Court of the jurisdiction to entertain this appeal. They all urged this Court to resolve all the issues against the appellants.
Two rules of the Court of Appeal are often referred to throughout the argument of all parties to this appeal i.e. Order 2 Rule 3 and Order 6 Rule 2(1) of the Court
of Appeal Rules, 2011. I shall therefore reproduce them in this judgment for ease of reference.
Order 2 Rule 3 states:
“Where under these Rules, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed on it.”
Also, Order 6 Rule 2(1) of the said rules states:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the later case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.”
I shall return to these rules anon.
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 Eimskip 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.
In the instant appeal, there is abundant evidence in the record to show that the 2nd to 36th respondents were not served with notice of appeal at the Court below which necessitated the 1st & 37th respondents to raise a preliminary objection to the competency of the appeal on three grounds. The second ground thereof states:
“(II) The failure to put the 2nd 36th respondents on notice and serve the appeal
process a them robs the Court of Appeal of jurisdiction to entertain same. Paragraph 52 of the 1st Schedule to the Electoral Act, 2010 (as amended).
(1) PPA v. INEC (2012) 13 NWLR (Pt. 1317) 215 SC at 237 Paras C – D per Ngwuta JSC;
(2) S.S. Nig. Ltd V. AS & Nig. Ltd (2011) 4 NWLR (Pt. 1238) 596 at 620 Paras B – D.”
The appellants had argued before the lower Court that they complied with Order 6 Rules 2(1) & (9) of the Court of Appeal Rules and that, that was enough to ensure the competence of the appeal. They had also argued that the 2nd 36th respondents were not parties directly affected by the appeal and that was why their addresses for service were not endorsed on the notice of appeal.
To make matters worse, the processes, including the notice of appeal (being the originating process) were dumped at the office of the 37th respondent, the APC.
At the hearing of this appeal, there was no evidence that there was an order of the lower Court for substituted service. Under this state of affairs, the lower Court had no difficulty in holding the notice of appeal incompetent.
On pages 934 – 935 of the record, the
lower Court held as follows:
“In the instant case, the notice of appeal does not have endorsed thereon address for service of each of the 3rd 36th respondents. It offends Order 2 Rule 3. Accordingly, therefore I hereby invoke the sanction for this incompetent process contained in Order 2 Rule 3 of the Rules of this Court and the said notice of appeal filed on 26th July, 2015 is hereby struck out. The filling of this notice of appeal in flagrant disobedience of Order 2 Rule 3 and Order 6 Rule 2(1) was intended not to promote the tenets and purports of Section 36(1) and 285(7) of the 1999 Constitution, as amended…”
The lower Court went on to say further on page 935:
“I notice from the bailiffs report of service in the records of the Court that this incompetent notice of appeal was dumped on the Protocol Officer of APC, the 37th respondent on 28th July, 2015 as a purported service of the same on the 3rd, 4th, 6th – 12th, 15th – 24th, 26th – 29th and 32nd – 36th respondents; whereas there was no order for such a substituted service. The purported service is incompetent and of no effect.”
I have already stated the importance of service
of process on respondents. The question which I wish to attempt an answer is whether the proven failure by the appellants to serve the named respondents the notice of appeal is a mere irregularity or whether it goes to the root of the appeal.
Let me state categorically that although the Court is not a slave to its rules, it shall at all times ensure that its rules are obeyed. I am tended to be persuaded with the views expressed in Odua Investment Co. Ltd V. J. T. Talabi (1991) 1 NWLR (Pt. 170) P. 761 at 781 – 782 paras G – B per Tobi, JCA (as he then was) that:
“In all non-compliance cases, the Court must draw a dichotomy between non-compliance arising directly from non-service of the Court process as opposed to and distinct from non-compliance arising form other procedural aberrations like non-endorsement of Court process… An indiscriminate loading of the statutory provisions with the available case law without drawing this fundamental and factual dichotomy will end in a blurry appreciation of the legal fogcast surrounding this fairly troublesome area of our adjectival law. In my view, while non-service of a Court process is an incurable defect for
all times, I am prepared to hold and I do hold that failure to comply with other procedural requirements, like non-endorsement of the writ and all that, is an irregularity, which is curable. While the former situation is within the contemplation of SKENCONSULT and the group of cases, the later situation is within the contemplation of EZOMO and the group of cases. It is not every defect in service that will affect the jurisdiction and competence of the Court to adjudicate on the matter. It depends upon the type or nature of the defect, whether it is fundamental or not. See Management Enterprises Ltd V. Otusanya (1987) 2 NWLR (Pt. 55) 179.”
For me, 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). As was rightly pointed out by the learned counsel for
the 11th respondent, Chief Falade, the failure to serve those respondents constitutes a breach of the Rule of fair hearing and robs the Court of its jurisdiction to hear the appeal. Any breach of his principle renders the proceedings a nullity. See Chime V. Onyia (2009) All FWLR (Pt. 480) 673 at 730 731 paras H-B.
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. Ogbonda (2007) All FWLR (Pt. 351) 1456 at 1482 para H.
From what I can glean from this appeal, the confusion of the appellants appear to lie in their erroneous belief that the 3rd 36th respondents were not persons directly affected by the outcome of the appeal and because of that there was no need to endorse their addresses for service. I must say that the appellants made a serious blunder in this appeal by treating the issue of services of originating process with levity. Even before this Court, the appellants still dumped their processes meant for some respondents on the Protocol Officer of the 37th respondent. Appellants ought to know that those respondents were to be served
personally and where that fails, by substituted service by an order of the Court sought and obtained. There is no doubt that the appellants failed to comply with the rules of the lower Court alluded to above and this failure, sadly, has turn up to hunt them. 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 NWIR (Pt. 918) 400, Skenconsult V. Ukey (supra).
Let me make one or two sentences on issue 6. It relates to whether the 3rd – 36th respondents were persons directly affected by the appeal. The parties so named were mentioned in the petition as having committed one misconduct or other, some of which are criminal in nature. The lower Court held that they were necessary parties because allegations of misconduct were made against them in the petition. Thus, the petition against them having been dismissed, I think any appeal which seeks to challenge or upturn that decision gives them
sufficient interest to know its outcome which may affect them one way or the other. Assuming that the appeal was allowed, would they not have been parties to the hearing of the petition on the merit Thus, the argument by the learned senior counsel for the appellants that they were not parties directly affected by the petition was of no moment. And, in any case that was not a good excuse for failure to provide their addresses for service and moreso, failure to serve them.
Issue Six is thus resolved against the appellants.
The main complaint of the appellants in issue 7 which was argued separately is that the Court below failed to pronounce on the two motions heard by the trial Tribunal and the concluded pre-hearing session, the Court having been invited to do so on record by the appellants.
According to the argument of the learned senior counsel for the appellants, three motions, two by the 1st & 37th respondents and one by the appellants were consolidated, heard and adjourned for ruling. There was no ruling until the petition was dismissed for abandonment. According to learned senior counsel, the Court below was invited to invoke its
powers under Section 15 of the Court of Appeal Act, should the appeal succeed to deliver the due but undelivered ruling. The Court below failed to do so. This is the basis of the complaint in ground 13 in the notice of appeal which has given birth to this issue. It is learned senior counsel’s plea that in view of the short time left for the hearing of the petition at the Tribunal, this Court should invoke its powers under Section 22 of the Supreme Court Act and determine the motions.
In response, learned senior counsel for the 1st & 37th respondents and senior counsel for the 2nd respondent argued that since the request by the appellants was dependent upon the appeal being allowed, it was not necessary for the lower Court to pronounce on the three motions since the appeal was not sustained.
Without much ado, I agree with the respondents.
The power granted the Court of Appeal under Section 15 of the Court of Appeal Act is available in order to do substantial justice in deserving cases. It is not power that should be exercised at large. The appellants in Paragraph 4.05D of their brief in this appeal admitted that they prayed the Court below
to invoke its powers under Section 15 of the Court of Appeal Act:
“Should the appeal succeed, and to deliver the undelivered ruling and the pre-hearing report which the Tribunal failed to deliver and was instead completely silent on the matter.”
As it turned out, the appeal did not succeed. I agree that the complaint of the appellants in this issue is of no moment.
The appellants have also invited this Court to invoke its powers under Section 22 of the Supreme Court Act to hear those motions. I agree that 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.
In Shettima V. Goni (supra) at 452 paras C – G, this Court held as follows:
“It is settled law that this Court can only exercise its powers under the said Section 22 by
exercising the jurisdiction of the lower Court where that Court has the jurisdiction to act, not where that Court has ceased to have jurisdiction over the matter. In short, the jurisdiction of this Court under Section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal with the matter it issue and pending before it.”
It is quite clear that the Court of Appeal struck out the appellants’ appeal for being incompetent for which it lacked jurisdiction to hear an incompetent appeal. It follows therefore, that the Court below, by that singular pronouncement ceased to have jurisdiction over the matter before it- It was not possible for the Court below to go ahead to hear the three motions. Concomitantly, this Court also lacks the jurisdiction to hear and pronounce on those motions. It is therefore not possible to invoke Section 22 of the Supreme Court Act as prayed by the appellant. As it turns out, the 7th issue does not also avail the appellants.
The summary of all I have said above is that the statement of the Registrar that there was service on all respondents was not a decision of the Court and did not
preclude the lower Court from satisfying itself from the record available whether or not the 26 absent respondents were actually served. Secondly, 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. In this case, there was no such order of the Court or exemption.
Thirdly, the Court below had no jurisdiction to invoke Section 15 of the Court of Appeal Act to hear the three motions having struck out the appeal for incompetence. It follows that this Court cannot invoke Section 22 of its Act to hear the motion as the lower Court lacked jurisdiction to do so.
On the whole, there is no merit in this appeal at all.
Accordingly, it is hereby dismissed by me. Thus the judgment of the Court of Appeal delivered on 3rd September, 2015 at Owerri which struck out the appeal of the appellants, is hereby affirmed. The parties to this appeal shall bear their respective costs.
The 1st and 37th respondents filed a cross appeal in this matter. The said cross appeal was
taken along with the main appeal on 22nd October, 2015 when it was heard. Briefs were filed, exchanged and adopted by respective senior counsel. However, in view of the outcome of the main appeal, the benefit of which majorly inures to the 1st and 37th respondents (cross-appellants), the cross appeal has become academic and spent. It shall therefore abide the outcome of the main appeal. There shall be no order as to costs.