POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI

POST MASTER GENERAL & ORS. V. MR.
MAC-CAJETAN AGBASI
CITATION: (2006) LPELR-11926(CA)
In The Court of Appeal
(Port Harcourt Judicial Division)
On Thursday, the 30th day of November, 2006
Suit No: CA/PH/112/2003
Before Their Lordships
VICTOR AIMEPOMO OYELEYE
OMAGE
Justice, Court of Appeal
ISTIFANUS THOMAS Justice, Court of Appeal
IBRAHIM MOHAMMED MUSA
SAULAWA
Justice, Court of Appeal
Between
1. POST MASTER
GENERAL
2. NIGERIA POSTAL
SERVICE
3. BOARD OF
MANAGEMENT OF
POSTAL SERVICE
4. MR. UCHE I. OKORO
1
Appellants

And
MR. MAC-CAJETAN
AGBASI Respondent
RATIO DECIDENDI
1 CONSTITUTIONAL LAW - BREACH OF
RIGHT TO FAIR HEARING: Whether the
court will lack necessary competence or
jurisdiction to proceed further to determine
other issues of merit where there is a breach
of fair hearing
"Hence, it's a well established principle that
where a plea of breach of fair hearing (as in
the instant case) has been raised and
successfully established and up held, the court
lacks the necessary competence or jurisdiction
to proceed further to determine other issues
of merit in the, case. see ARAKA vs EJE AGWU
(2000) 15 NWLR (part 692) 684 at 718 per
AYOOLA JSC; OKEREKE vs NWANKWO (2003)
9 NWLR (part 826) 592 SC; EWO VS ANL
(2004) 3 NWLR (part.861d) 610; SC
respectively." Per SAULAWA, J.C.A (Pp
22-23,Paras F-A) - read in context
2 APPEAL - ISSUE FOR DETERMINATION:
Whether a single issue can dispose an appeal
completely; and its effect
2

"It is well settled law that, once a single issue
can dispose of the appeal completely, it is not
necessary to consider the remaining issues
formulated and argued by the parties. See
OKEREKE V. NWANKO (2003) 9 NWLR (Pt.
1326) 592 SC; EWO v ANI (2004) 3 NWLR
(Pt. 861) 610, SC." Per THOMAS, J.C.A (P
7,Paras F-G) - read in context
3 PRACTICE AND PROCEDURE -
NON-COMPLIANCE WITH RULES: Effect of
non-compliance or defect in the competence
or jurisdiction of the court
"It is trite that where a non compliance or
defect goes to the competence or jurisdiction
of the court, any subsequent proceeding
would be a nullity no matter how well the case
was decided. See KIDA S OGUNMOLA (supra)
at (396) paragraphs D - E per KATSINA - ALU
JSC thus: "It is now trite law that failure to
serve process where service of process is
required is a fundamental vice. This means
that the trial court is deprived of the
necessary competence and jurisdiction to hear
the action." Per SAULAWA, J.C.A. (Pp
21-22,Paras F-A) - read in context
4 ACTION - PROPER PARTIES: Whether the
absence of proper parties in court will render
the jurisdiction of the court void
3

"It is settled law that where proper parties are
not before a court the court is without
jurisdiction to adjudicate. See PLATEAU STATE
v. A-G FEDERATION (2006) 1 SC (pt.1) 64;
AMODU v. AJOBO (1997) 7 NWLR (pt.406)
170." Per THOMAS, J.C.A (P 11,Paras F-G) -
read in context
5 CONSTITUTIONAL LAW - RIGHT TO FAIR
HEARING: Whether a judgment is bound to
be set aside if the superior court is of the
opinion that the party entitled to be heard
was not given an opportunity to be heard
"It is trite that the rule of fair hearing as
cherishingly enshrined under section 36 of the
constitution of the Federal Republic of Nigeria
1999, is not a technical principle. It is rather
one of substance. As authoritatively and most
cherishingly held by the supreme court: "once
an appellate court comes to the conclusion
that the party was entitled to be heard before
a decision was reached but was not given the
opportunity of hearing the ...Judgment thus
entered is bound to be set aside ". see
BAMAIYI vs THE STATE (2001) FWLR Part 46
page 956 at 974 paragraphs D - E per Uwaifo
JSC; KOTOYE VS CBN (1989) NWLR (part 98)
419; ATANO v. AG. BENDEL (1988) 2 NWLR
(Pt. 75) 201; NTUK DEM vs OKO (1986)
NWLR (part 45) 909." Per SAULAWA, J.C.A. (P
22,Paras B-E) - read in context
4

6 PRACTICE AND PROCEDURE - SERVICE
OF COURT PROCESS: Effect of failure to
serve a court process where such a service is
required
"It is undoubtedly trite, that failure to serve
court process where such a process is required
is a fundamental defect. Thus, absence or lack
of proof of service of court process on a party
deprives a trial or even appellate court the
necessary competence of jurisdiction to
determine the case before it. See AUTO
IMPORT V. ADETAYO (2002) 18 NWLR
(PT.799) 544; SGBN V. ADEWUNMI (2003) 10
NWLR (PT.829) 526; MBADINUJU V. EZUKA
(1975) (1994) 8 NWLR (PT.364) 535; SCOTT
EM-AKPOR V. UKAUBE (1975) 12 SC 41; UBN
PLC V. OKONKWO 92004) 5 NWLR (PT.867)
445; KDA V. OGUNMOLA (2006) 13 NWLR
PT.997 PAGE 377 AT 395, paragraphs H-C,
respectively." Per SAULAWA, J.C.A (Pp
16-17,Paras G-C) - read in context
ISTIFANUS THOMAS, J.C.A (Delivered the
Leading Judgment): This is an appeal against the
judgment of the Federal High Court, Port Harcourt
in suit No. FHC/PH/126/95 delivered on 30th
November 1999. The lower court's decision was
against the appellants in which the
5

plaintiff/Respondent had claimed severally and
jointly against the defendants/appellants, special
damages and loss of profit as a result of the failure
to deliver an overseas postal parcel under contract
Exhibit 1. Dissatisfied with the decision, appellants
appealed to this court and they were granted leave
to raise and argue points not raised and argued in
the lower court. The appellants were also granted
by this Court to amend their notice of appeal and to
file and argue one additional ground of appeal.
From the amended and additional grounds of
appeal totaling 9 grounds of appeal the appellants
have their brief from which they distilled and
formulated six (6) issues that read as follows:
"1. Whether the failure of the learned trial Judge to
consider and pronounce upon Exhibit 1 containing
the terms and conditions of the contract occasioned
a miscarriage of justice.
2. Whether the learned trial Judge properly
evaluated the evidence, before him and was right
in the conclusion reached thereby.
3. Whether the learned trial Judge rightly placed
the onus on the defendants to prove that they
delivered the parcel to the addressee.
4. Whether the judgment of the trial court which is
based on the provisions of the Nigerian Postal
Service Department Act Cap 322, which was no
longer in force at the time of commencement of the
action and judgment is valid.
5. whether the learned trial Judge was right when
he failed to apply well known principles of law to
the proved and accepted facts.
6

6. Whether in the circumstances of this case, the
trial which was conducted in the absence of the
defendants when there was no proof of service of
hearing notice as ordered was proper and can be
allowed to stand."
The respondent on time, filed his respondent's brief
of argument and has formulated six issues for
determination. They read thus:
"(i) whether the learned trial Judge failed to
consider Exhibit I?
(ii) whether the learned trial Judge properly
evaluated the evidence before him and was right in
the conclusion reached thereby?
(iii) whether the learned trial Judge rightly placed
the onus on the defendants to prove that they
delivered the parcel to the addressee?
(iv) Whether, assuming without conceding, that the
judgment is invalid merely because it was based on
the provisions of a wrong law?
(v) Whether the learned trial Judge failed to apply
well known principles of law to the proved and
accepted facts.
(vi) Whether the suit was conduced in the absence
of the appellants without their not served with
Hearing Notice before the hearing of the suit?"
It is well settled law that, once a single issue can
dispose of the appeal completely, it is not
necessary to consider the remaining issues
formulated and argued by the parties. See
OKEREKE V. NWANKO (2003) 9 NWLR (Pt. 1326)
592 SC; EWO v ANI (2004) 3 NWLR (Pt. 861) 610,
SC.
7

I have carefully considered the totality of six
issues raised by both parties, and I am satisfied
that appellants' issue No. 6 is in pari material with
the respondent's issue No 6. Both issue 6 have
argued as to whether hearing notice was served on
the appellant before hearing of the suit. I am of
the considered opinion that once issue six is
properly considered, the appeal can conveniently
dispose the appeal and this is what I will do.
Appellants' argument in their issue 10 is stated at
page 11 of the brief. Their arguments in paragraphs
4.66, 4.77, 4.72, 4.73 and 4.74 are relevant.
Appellants' argument are that the issue is
questioning the propriety' of a trial conducted in
the absence of the other party and in the instant
appeal, the absence of the appellant who were not
served with hearing notice as ordered by the
learned trial Judge. I have carefully perused page
38 of the record of appeal. It reads as follows:
"... ... ...
Case called
Plaintiff present
Defendant absent
C. J. Okoli-Akrika Esq. appears for the plaintiff.
Defendant not presented by counsel
Mr. Okoli: Pleadings have been filed and exchanged
in this matter but surprisingly the defendants
stopped coming to Court.
Court: This matter is adjourned to 29-4-99 for
mention. Fresh hearing notice to be served on the
defendants.
Signed
8

P. J. Olayiwola
Judge
13-4-99
From the above quotations, it is clear that on the
13-4-99 when the suit came up before the trial
Judge, the appellants were absent including their
counsel: and therefore the learned trial Judge
adjourned the case to 29-04-99 and clearly ordered
a fresh hearing notice to be served on the
appellants. Since then, there were several
adjournments and the Appellants were absent on
all the occasions and on 22-7-99 the same court
granted the respondent leave to prove his case.
Learned counsel for the respondent had also
informed the court that on different occasions, the
court had ordered fresh hearing notice on the
appellants, but alleged that the appellants had
failed to turn up.
I have carefully perused and considered the
proceedings of the trial court on pages 39 - 41 and
page 45. These pages have shown that on 29-4-99,
the trial Judge simply said "This matter is
adjourned to 15th and 16th June 1999 for definite
hearing." This shows that there was no "fresh
hearing notice to be served on the appellants" as
claimed by learned counsel for respondent. On
15-6-99, the same trial judge merely said - "This
matter is fixed for today and tomorrow, matter is
therefore adjourned till tomorrow for definite
hearing." It is therefore failure to serve hearing
notice of service on the appellants. Still on
16-6-99, the same Judge said as follows:
9

('This matter is adjourned to 5th July 1999 for
definite hearing."
This is a further proof that the learned trial Judge
did not specifically made an order of service of
hearing notice on the appellants.
When the respondent's counsel was in court on
5-7-99, he asked for a short adjournment to serve
a motion on notice. Still the trial court granted the
application for hearing of the motion papers and
adjourned it to 22-7-99 without specific order to
issue fresh hearing notice on the appellants except
the proceedings made on 13-4-99. But not only
that a fresh hearing notice is to be served. There
must be a conclusive proof that the court's bailiff
had served the party(ies) in question. The proof of
service is the return hearing notice in which the
recipient of the hearing notice is to state the name,
rank, date, time and signature on the back of the
hearing notice. Where the counter hearing notice is
refused to be served, the court's bailiff has the duty
to swear to an affidavit that the party had refused
to accept hearing notice. All reasonable courts of
record are enjoined to rely on proofs of services of
hearing notice on parties before hearing of the
proceeding.
In the instant appeal despite so numerous
adjournments for hearing, the learned trial Judge
woefully failed to make fresh hearing notices on the
appellants; and where such order was made, the
lower court did not deem it necessary to demand
and see or look at the requisite proof of service on
the appellants. The assertion by learned counsel for
10

the respondent that there were proofs of service or
proofs of hearing notice on the appellants in the
court's file is of no consequence.
There is no evidence in the record of appeal that
hearing notices were served on the appellants.
More over, learned counsel's argument, no matter
how brilliant is not proof of evidence.
From the above findings, I am satisfied that the
purported hearing of the respondent on which he
testified and established his claim as shown on
page 48 - 50 of the record is a nullity because the
defendants/appellants were not served hearing
notice. It is therefore clear that the trial Judge
heard evidence and gave judgment in
contravention of statutory requirement to serve
hearing notice before proceedings.
The appellants were denied right of lair hearing as
constitutionally enshrined under Section 36 of the
1999 Constitution and an abuse of the honoured
principle of audi alteram partem rule.
Consequently, parties' issue 6 is resolved in favour
of the appellants. Issue six is enough in allowing
the appeal. Issues 1 - 5 are discountenances, they
are regarded as hypothetical issues.
It is settled law that where proper parties are not
before a court the court is without jurisdiction to
adjudicate. See PLATEAU STATE v. A-G
FEDERATION (2006) 1 SC (pt.1) 64; AMODU v.
AJOBO (1997) 7 NWLR (pt.406) 170.
The appellants are entitled to N10,000.00 costs
against the respondent.
11

OMAGE, J.C.A.: I am privileged to read in advance
the lead judgment of my learned brother, I.
Thomas, JCA. It is evident from the printed record
that the proper parties were not in the court below.
The Court is thereby without jurisdiction to hear
the plaint for it would be unjust to determine the
salient issues in the matter without the proper
parties and deny the parties any hearing, when the
parties were not served. The appeal is struck out.
I abide by the consequential order for costs.
SAULAWA, J.C.A.: I have had the privilege of
reading the draft of the lead judgment of my
learned brother THOMAS, JCA, just delivered by
him. I agree with him that this appeal has merit
and ought to thus be allowed. However, for
purposes of emphasis I have deemed it most
appropriate to make my own contribution.
As it would appear from the records, this is an
appeal against the judgment of the lower court in
suit NO FHC/PH/126/95 dated 30/11/99 Coram
P.F. OLAYWOLA in the said suit the present.
Respondent had claimed against the Appellants
severally and jointly, as follows:
(a) N300,000,00 (Three Hundred Thousand naira)
only as special damages or the actual market value
of the Minolta power supply boards which the
defendants accepted from the Plaintiff for carriage
to America but failed or defaulted to do so as
contracted or return same to the Plaintiff or
12

account for their (sic) where about despite repeated
demands to that effect.
(b) The sum of N125,000.00 (one Hundred and
Twenty, Five thousand naira) only being the cost
profit the plaintiff would have made., if the
defendants had performed as contracted,between
28th November 1994 to 28th April 1995 and
(c) N25,000.00 (Twenty Five Thousand Naira) only
being the monthly profit the Plaintiff normally
makes form May 1995 until judgment is given. See
page 18 paragraph 17 of the Record of the Trial
court. At the conclusion of the trial, the lower court
delivered the judgment thereof on 30/11/99 to the
effect inter alia that: I therefore hold the
defendants jointly and severally liable to the
Plaintiff to this extent.
(i) the sum of N300,000,00 market value of Minolta
supply Board.
(ii) 60% of the profit the Plaintiff would have made
between 28th November 1994 to 28th April 1995,
i.e. 60% of N 12 5,000.00 - N75,000.00.
(iii) 60% of the monthly profit the Plaintiff would
have made between May 1995 and November 30th
1999, i.e. 60% of N 1, 3 5 0,000.00 N810,000. 00,
Total -- N1,185,000.00. There is no order as to
costs.
Not unnaturally, being dissatisfied with the
judgment of the trial court alluded to above, the
four Appellants have filed this appeal initially upon
eight grounds of appeal. see pages 135 - 140 of the
Records. However its also evident from the records
of this court that the Appellants were duly granted
13

leave to amend grounds 1,2,3, 4, 6 and 7 of the
original grounds filed on 28/10/2002 along with the
notice of appeal.
It is instructive that both parties have filed and
exchanged the brief of argument thereof. The
Appellants brief dated t0/0212005 and filed on the
same date hers raised a total of six issues for
determination, to wit:
1. Whether the failure of the learned trial judge to
consider and pronounce upon exhibit I containing
the terms and conditions of the contract occasioned
a miscarriage of justice.
2. Whether the learned trial judge properly
evaluated the evidence before him and was right
in the conclusion reached thereby.
3. Whether the learned trial judge rightly placed
the onus on the defendants to prove that they
delivered the parcel to the addressee,
4. Whether the judgment of the trial court which is
based on the provisions of the Nigerian postal
service Department Act CAP 322, which was no
longer in force at the time of 5 commencement of
the action and judgment is valid.
5. Whether the learned trial judge was right when
he failed to apply well known principles of law to
the proved and accepted facts.
6. Whether in the circumstances of this case, the
trial which was conducted in the absence of the
defendants when there was no proof of service of
hearing notice as ordered was proper and can be
allowed to stand.
On the part thereof the Respondent filed his brief
14

on 22/3/2005 and raised therein six issues, thus:
(i) whether the learned trial judge failed to
consider Exhibit 1?
(ii) whether the learned trial judge properly
evaluated the evidence before him and was right on
the conclusion reached thereby?
(iii) Whether the learned trial judge placed onus on
the Defendant to prove that that delivered the
parcel to the addressee.
(iv) Whether, assuming with out conceding that the
judgment is invalid merely because it was based on
the provisions of a wrong law.
(iv) Whether the learned Trial judge failed to apply
well known principles of law to the proved and
accepted facts?
(iv) Whether the suit was conducted in the absence
of the Appellants with out their not being served
with Hearing Notice before the hearing of the suit?
The Appellants have in turn also filed a reply brief
in response to the Respondents brief alluded to
above, on 18/4/2005 and accordingly urged on the
court that:
"For the above reasons and those stated in the
Appellants brief, this Honourable Court is humbly
urged to allow the appeal and set aside the
judgment and order of the Federal High Court made
against the Appellants."
I have accorded an ample but rather very critical
consideration upon the nature and circumstances"
surrounding this appeal, the records of proceedings
of the lower court, the respective parties briefs of
argument, as well as the numerous but rather
15

illuminative legal authorities referred to therein by
the learned counsel.
In view of the crucial point raised therein, I have
deemed it not only expedient but also imperative to
first and foremost, deal with the issue No 6 raised
by both the Appellants' and Respondent's counsel in
the respective briefs thereof. As alluded to above,
the said issue raised by the Appellants in their brief
of argument which was adopted by the Respondent
is to the effect that:
"6- Whether in the circumstances of this case, the
trial which was conducted in the absence of the
defendants when the there was no proof of service
of hearing notice as ordered was proper and can be
allowed to stand."
It's also instructive that issue No6 inquestion is
distilled from ground No 8 of the amended grounds
of appeal. According to the appellants:
4.65. ISSUE 6
4.66. This issue relates to ground eight of the
amended grounds of appeal. The issue questions
the propriety of a trial conducted in the absence of
the appellants when they were not served with
hearing notice as ordered by the learned trial
judge.
As alluded to above, I have deemed it expedient to
deal with issue No 6 first, because service of
process, especially hearing notice on a party is
crucial and fundamental and thus intrinsic to the
jurisdiction of any court, be in the trial or appellate
court. It is undoubtedly trite, that failure to serve
court process where such a process is required is a
16

fundamental defect. Thus, absence or lack of proof
of service of court process on a party deprives a
trial or even appellate court the necessary
competence of jurisdiction to determine the case
before it. See AUTO IMPORT V. ADETAYO (2002)
18 NWLR (PT.799) 544; SGBN V. ADEWUNMI
(2003) 10 NWLR (PT.829) 526; MBADINUJU V.
EZUKA (1975) (1994) 8 NWLR (PT.364) 535;
SCOTT EM-AKPOR V. UKAUBE (1975) 12 SC 41;
UBN PLC V. OKONKWO 92004) 5 NWLR (PT.867)
445; KDA V. OGUNMOLA (2006) 13 NWLR PT.997
PAGE 377 AT 395, paragraphs H-C, respectively.It
was the contention of the Appellants (paragraphs
4.67 - 4.78 of the Appellants brief) that the case
first came up on 22/11/95 before E.O. Sanyaolu J
but was struck out for want of prosecution. On
27/7/98, the matter came up again before O. Aina,
J, who took evidence of the Respondent and
adjourned the case to 22nd and 23/9/98 (see page
31-34 of the Record) The court did not sit on those
dates. Later the case came up on 27/10/98 before
A. Mustapha, J who adjourned it to 18/11/98 in the
absence of the Appellants and their counsel. The
court evidently did not sit on that date. The case
then later came up on 07/7/98 . The Appellants
and their counsel were again absent.The case was
adjourned to 19/02/99. The court didnot sit on
that date. The case later came up on10/03/99
in the absence of the appellants and theTrial judge
A. Mustapha.J, ordered at page 37 ofthe Records
thus:
"Court: case is adjourned to 13th April 1999 for
17

Trial before court 2."
On that date the case came up before P.F.
Olayiwola, J, in the absence of the appellants. The
new Trial judge adjourned the matter to 29/4/99
and ordered that fresh hearing notice be served on
the appellants. Then after several adjournments
the trial judge P.F. Olayiwola, J. ordered on
27/7/99 thus:
Court: Having listened to Mr. Okoli-Akirika counsel
in support of this motion I am of the opinion that
the plaintiff should be granted leave to prove his
case before this honourable court. The Plaintiff is
therefore hereby granted leave to lead evidence
and prove his claim before this honourable court.
This case is therefore adjourned to 24th September
1999 for hearing.
On that day, the Trial court proceeded to hear the
evidence of the respondence in the absence of the
Appellants and their counsel. There is nothing on
the face of the Trial court's record at pages 48-50
to show that the Appellants were served with the
hearing notice against the 24/9/99. from that date,
the case was adjourned to 08/10/99 fro
respondents counsel address and thereafter to
30/11/99 for judgment.
It was submitted by the Appellants' counsel that
proceeding to taking evidence and delivering
judgment by the trial judge in the absence of the
appellants with out satisfying himself that they
were duly served with hearing notice as ordered on
13/04/99, is a clear violation of their right to fair
hearing.
18

That fortiori the judgment delivered by the learned
trial judge on 30/11/91) is a miscarriage of justice
and thus a nullity. Relying on the cases of ANUWAH
TRANS (NIG) LTD v. OA TRANS (NIG.) LTD. (1998)
1 NWLR (part 555)619 at 690; ODUTOLA VS.
KAYODE (1994) 2 NWLR (part 324) 1 at 22 et althe
learned counsel urged this court to allow the
appeal and set aside the.iudl3ment of the court
below.On the other hand, the Respondent has in
the briefthereof made copious references to the
variousdates on which the matter came up before
the trialcourt for trial. Most particular, paragraph
3.44 is tothe effect that:
3.44. On the said 29th April 1999, the court
adjourned the suit in the presence of the 4th
Defendant/Appellant, to the 15th and 16th days of
June 1999 for definite hearing. See page 39 of the
Record of Appeal. The Appellants deliberately
omitted (sic) to state this fact in their Brief of
Argument in order to hood-wink your Lordships.
It is also the contention of the Respondent's
learned counsel that:
3.50. From the above stated facts it is clear that
the Defendants/Appellants deliberately abandoned
their defence and kept away from the proceedings
only to bring this frivolous Appeal in order to
frustrate the execution of the judgment.
He thus contended that the judgment of the trial
court appealed against is not a nullity merely
because the Defendants chose to keep away from
the proceedings; they did so at their own peril.
19

See KADUNA TEXTILE MILLS LTD VS ALHAJI UMAR
(1994) INWLR (part 317) 143 at 159 to the effect
inter alia that a recalcitrant party who fails to
attend court can not be allowed to hold the court at
ransom as he can not benefit from his own default.
See also EKRENII VS EFEIZOMIOR II (1993) 7
NWLR (part 307) 588.It is evident from the Records
of the Trial court that(pages 38 and 39 of the
Record) that even thoughthe 4th Defendant was
indicated to have beenpresent in court on
29/4/99 there was nothing toshow that the
necessary service of the hearing notices were
effected on the 1st, 2nd and 3rd Appellants
vide their counsel who was absent on that date.
What is more, on 15/6/99, the record of the trial
court clearly' shows only the Respondent and his
counsel C.J. Okoli - Akirika Esq. were present. The
four Appellants and their counsel were absent. The
Trial judge ordered thus:
"Court: This matter fixed for today and tomorrow
matter is therefore adjourned till tomorrow for
definite hearing."Again, most unfortunately, there is
nothing in the record at page 41 to indicate that
the learned Trial judge had ordered for the service
of a fresh hearing on the Appellants vide their
counsel
in short no.Most intriguingly, on 30/16/99 the
Respondent filed a motion for leave to lead
evidence and prove his claims against the
Appellants in
the lower court.The said motion was heard and
granted on 27/7/99in the absence of the Appellants
and their counsel.
20

There was as usual no proof that they were duly
served with the motion papers and notice of
hearing thereof. Thus, there is no doubt that the
hearing and granting of the said motion by the trial
judge with out proof of service of the motion papers
and the hearing notice on the appellants had
occasioned a miscarriage of justice to the
appellants.
Hence, the subsequent taking of the evidence of
the Respondent on 24/9/99, the Respondent
counsel's address on 08/10/99, and the resultant
judgment delivered by the learned trial judge there
upon on 30/11/99 in the absence of any valid proof
of service of hearing notice on the Appellant; and
their counsel are incompetent and thus a nullity.
This is so, because as alluded to above, service of
court process, especially hearing notice is a sine
qua non to any effective adjudication process; the
lack or absence of which deprives the court with
the necessary jurisdiction or competence over a
party who has not been served unless he
voluntarily submits himself to the courts
jurisdiction.
It is trite that where a non compliance or defect
goes to the competence or jurisdiction of the court,
any subsequent proceeding would be a nullity no
matter how well the case was decided. See KIDA S
OGUNMOLA (supra) at (396) paragraphs D - E per
KATSINA - ALU JSC thus:
"It is now trite law that failure to serve process
where service of process is required is a
fundamental vice. This means that the trial court is
21

deprived of the necessary competence and
jurisdiction to hear the action"
In the absence of any valid proof of service of
hearing notice on the Appellants, this court hits no
option other than to hold that the judgment
delivered by the lower court on 29/11/99 has
occasioned a miscarriage of justice to the
Appellants. It is trite that the rule of fair hearing as
cherishingly enshrined under section 36 of the
constitution of the Federal Republic of Nigeria
1999, is not a technical principle. It is rather one of
substance. As authoritatively and most cherishingly
held by the supreme court:
"once an appellate court comes to the conclusion
that the party was entitled to be heard before a
decision was reached but was not given the
opportunity of hearing the ...Judgment thus
entered is bound to be set aside ". see BAMAIYI vs
THE STATE (2001) FWLR Part 46 page 956 at 974
paragraphs D - E per Uwaifo JSC; KOTOYE VS CBN
(1989) NWLR (part 98) 419; ATANO v. AG. BENDEL
(1988) 2 NWLR (Pt. 75) 201; NTUK DEM vs OKO
(1986) NWLR (part 45) 909.
Hence, it's a well established principle that where a
plea of breach of fair hearing (as in the instant
case) has been raised and successfully established
and up held, the court lacks the necessary
competence or jurisdiction to proceed further to
determine other issues of merit in the, case. see
ARAKA vs EJE AGWU (2000) 15 NWLR (part 692)
684 at 718 per AYOOLA JSC; OKEREKE vs
22

NWANKWO (2003) 9 NWLR (part 826) 592 SC;
EWO VS ANL (2004) 3 NWLR (part.861d) 610; SC
respectively.
On the whole as stated above, I entirely concur
with the lead judgment that this appeal has merit
and it is accordingly hereby allowed by me. I also
abide by the costs of N10,000.00 awarded in favour
of the Appellants against the Respondent.
Appearances
S.M. Tenku Esq. with him S.O.
Sango-Tayo Esq, and Mrs M.A.
Abdullahi
Martins Elendu Esq.
23
For Appellants
For
Respondent