Essential Nature of Service of Hearing Notices

In the Court of Appeal In the Lagos Judicial Division Holden at Lagos On Friday, the 12th Day of October, 2017

Before Their Lordships

Joseph Shagbaor Ikyegh Abimbola Osarugue Obaseki-Adejumo Jamilu Yammama Tukur Justices, Court of Appeal CA/L/910/2014 Between

Prince Rotimi Agunsoye ………Appellant

And

1. The Governor of Lagos State 2. Attorney-General, Lagos State 3. The Registrar of Titles 4. Pastor Adedamola Wemimo Odunaiya ……Respondents (Lead Judgement delivered by Hon. Abimbola Osarugue Obaseki-Adejumo, JCA)

“Hearing notice is a substantive issue, which goes to the root of the adjudicatory competence of a court to proceed with the determination of the right of the parties before it. It is incumbent on every court to examine its records, to determine whether hearing notices were served on the parties before it, and where the occupier of the property in dispute is unknown, whether the notice was served on the property, in order to determine if the party deliberately absented himself, as he has no defence to the suit against him” Facts The 4th Respondent commenced an action at the High Court of Lagos State, vide a Writ of Summons dated 14th July, 2010 seeking inter alia, a declaration that the Certificate of Occupancy dated 27th May, 1989 registered as Number 36/36/1986F in the Lagos State Registry at Alausa, was still subsisting. The trial Judge gave judgement in favour of the 4th Respondent. The Appellant, who was sued as an unknown person and never participated in the proceedings, sought and was granted leave to appeal as an interested party. Issue for determination: Whether considering the evidence before the trial Court, the Appellant was not denied fair hearing by the Court. Arguments It was submitted on behalf of the Appellant, that the purported service of the originating process in August 2010 was not proper service, as the pasting was done on a wrong property, and was not pasted on the property of the Appellant. Counsel for the Appellant further contended that, the only other notice that was allegedly served on the Appellant was a hearing notice, allegedly served on 22nd November 2010, which he argued was posted without the leave of Court, as the order granted to the 4th Respondent at the commencement of the suit was for the substituted service of the originating process, and not all other processes of Court. He contended that there is no evidence before the Court, that the Appellant was served hearing notices of all the adjourned dates of the suit. He relied on section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, on his right to fair hearing. Counsel for the Appellant also relied on DARMA v OCEANIC INTERNATIONAL LIMITED (2005) 4 NWLR (Part 915) 391 at 406 to 407; DINGYADI v INEC (no. 1) (2010) 18 NWLR (part 1224) 1 at 90 para D – F. Finally, Counsel for the Appellant, contended that failure to serve the Appellant with the necessary processes, particularly the hearing notices of all the adjourned proceedings, automatically rendered the proceedings and any decision reached therefrom, a total nullity. He relied on OTOBAIMERE v AKPORHE (2002) 14 NWLR (part 894) 591 at 610 to 611 and urged the Court to set aside the judgement of the lower court, because the Appellant has been denied fair hearing at the lower Court. The 4th Respondent submitted that, the Appellant was duly served with all the processes in the suit, and that exhibits A, B and C are proofs of service deposed to by the Sheriff of the lower court. He stated that exhibit C clearly showed the unpainted building on the land, and that the Appellant failed to prove his assertion, by bringing the current picture of the house for comparison to ascertain if the house referred to by the parties are one and the same. He argued that, mere denial of the Appellant would be of no moment. The counsel for the 4th Respondent, argued finally that having been given the opportunity to be heard, the Appellant cannot turn around to claim he was denied fair hearing. He relied on NIGERIA NAVY v LABINJO (2012) 17 NWLR (part 1328) 56 at 84 to 85 paragraphs G – B; KADUNA TEXTILES LTD v UMAR (1994) 1 NWLR (part 319) 143. Court’s Judgement and Rationale The Court of Appeal, in resolving the issue, stated that service of relevant processes on parties to a proceeding before a court of law, is fundamental to the adjudicatory competence of that court. The court referred to EIMSKIP LTD v EXQUISITE IND. (NIG.) LTD (2003) 4 NWLR (Part. 809) 88 and quoted the dictum of Niki Tobi JSC thus: “service is a precondition 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 law suit against him, so that he can prepare a defence. If after service, he does not put up a defence, the law will assume and rightly too for that matter, 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. The Court further referred to ALHAJI Y. DAN RAUSA & CO. v PANATRADE LTD (1993) NWLR (Part 298) 204; FBN PLC v TSA INDUSTRIES LTD (2010) 15 NWLR (Part 1216) 247 SC, to further illustrate the importance of service ofcourt processes. The Court found that from the affidavit of service sworn to by the Sheriff, he served the Appellant the court originating processes by pasting them at Plot 9, Block 66, Magodo Scheme II, Magodo Lagos State. However, in the counteraffidavit denying the proof of service, filed by the Appellant, the Appellant stated that the originating processes were not pasted at his address at Plot 9, Block 66, Magodo Scheme II, Magodo Lagos State. The Court of Appeal held that where affidavits conflict on a disputed material fact, the court is not allowed to prefer one deposition to the other; the court, held that oral evidence should be led, to reconcile the conflicts in affidavit evidence, where there is no documentary evidence which can tilt the conflicting depositions one way or the other. The court relied on EIMSKIP LTD v EXQUISITE IND. (NIG.) LTD (supra). The Court of Appeal in the instant case, found that the Bailiff in his affidavit, attached pictures showing that he personally pasted the processes at the address on record. The Appellant, the court held, who asserts that the wrong property was served, ought to have shown through photographic documentary evidence, the right property to be served. The court concluded that, it does not lie in the mouth of the Appellant to merely state that the wrong property was served, when he has not placed before the court, material evidence in support of his depositions on this fact. The court therefore, held that the Appellant, who was sued as an unknown person, was served with the originating processes and the hearing notice of 22nd November, 2010. The Court of Appeal, however, went further to hold that hearing notice is a substantive issue, which goes to the root of the adjudicatory competence of a court to proceed with the determination of the right of the parties before it. It is incumbent on every court, to examine its records, to determine whether hearing notices were served on the parties before it, and where the occupier of the property in dispute is unknown, whether the notice was served on the property, in order to determine if the party deliberately absented himself, as he has no defence to the suit against him. The court relied on PAM v ANPP (2007) LPELR – 9000 (CA). The court found that there is no evidence on record, showing that notices of adjournment and subsequent proceedings of the court, were directed by the lower court to be served on the Appellant and whether it was ipso facto served on him, even though he was unknown at the time. The only hearing notice issued and served on the Appellant was the one dated 22nd November, 2010. The court held that failure to serve hearing notice on the Appellant before judgement was entered in favour of the Respondent, is a fundamental error which has rendered null and void the entire proceeding leading to the judgement, and is liable to be set aside as a nullity. Non service on the property occupied by the unknown person, is a vital flaw which robs the trial curt of jurisdiction. The court referred to SKENCONSULT NIG. LTD v UKE (1981) 1 SC 6; OBU v ARCHIBONG (2009) LPELR – 8897 (CA) The Court of Appeal finally held that, the Appellant was not afforded the opportunity to present his case, having not been served with the requisite hearing notices; hence, he had been denied fair hearing. The appeal was allowed and the suit remitted to the lower Court for re-assignment to another judge for re-trial. Appeal Allowed. Representations: M.N.O. Olopade with UC Madubuike for the Appellant A.O. Idowu (Director Civil Litigation) with K. Ayinde (SSS) and A.O. Adeusi (SSC MCJLA Directorate of Litigation) for the 1st – 3rd Respondent Nelson Okedinachi for the 4th Respondent Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))]]>