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))

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))