DR. HARRY EZIM v O. C. MENAKAYA (SC. 350/2007) [2017] NGSC 18 (11 May 2017)

In the Supreme Court

RULING
(Delivered by CLARA BATA OGUNBIYI, JSC)

The appeal herein is against the judgment of the Court of Appeal (lower court) Enugu Judicial Division delivered on 10th July, 2007 which dismissed the judgment of the trial High Court of Justice, Enugu of 19th March, 2004.

BRIEF STATEMENT OF FACTS
By diverse instruments witnessed and/or attested to by beneficiaries and/or descents of one Mr. Gabriel E. Okiy, Appellant became vested of the disputed land in this appeal. The property was originally known as Plot 1, Workshop Avenue Layout, Enugu, later re-designated as No. 1A, John Nwodo Close, Enugu/No. 9, John Nwodo Close, Enugu; but presently known and described as No. 25/27, John Nwodo Close, G.R.A. Enugu. The original owner, Mr. Gabriel E. O. Okiy (Okiy) (now deceased) was a native of Sapele in the present day Delta State and the said land was granted to him by the then Eastern State Government when he was serving at the Ministry of Agriculture, Eastern Nigeria. The grant was consummated by a building lease dated 6/2/61 registered as No. 12 at page 12 in Vol.259 of the Lands Registry Office at Enugu.
While alive, Okiy put the Respondent on the said land as a Caretaker and the Respondent remained so until 21/1/81 when Okiy died. Okiy left a will bequeathing the said property to his children. It was the Respondent through his son, Obi who introduced the said property to the Appellant and through the Respondent, the Appellant entered into the transaction with the children/descendants of Okiy.
Pursuant to the execution of the Power of Attorney and a Deed of Assignment dated 16th December, 1998, registered as No. 4 at page 4 in Vol.1454 of the Lands Registry Office at Enugu, the entire property together with all the improvements thereon were transferred for value to the appellant by the beneficiaries/descendants of Okiy, to wit, Beke, Robo, Ebun and Oguniya. Despite the transfer of title and in spite of protestations by the appellant, the respondent remained on the land after the sale purporting to be making some changes thereon.
Hence, the appellant instituted a civil action against the respondent at the High Court of Justice, Enugu; appellant was the plaintiff at the trial court, while respondent was the defendant. The Writ of Summons and Statement of Claim are dated 30th June, 2001 but filed on 3rd July, 2001.

The appellant, as Plaintiff before the trial court, claimed the following reliefs against the Respondent (then Defendant):-
i. AN ORDER for immediate possession of the entire property originally known as Plot 1 Workshop Avenue Layout Enugu (now 25/27 John Nwodo Close Enugu).
ii. N68,000.00 Mesne Profits for the use and occupation of part of the same at the rate of N10,000.00 per month from 1st December, 1995 -31st June, 2001.
iii. Mesne Profits at the same rate of N10,000.00 per month from 1st July until possession is given up.

iv. An injunction restraining the Defendant or his servants, agents and privies howsoever constituted from remaining on and/or resorting at anytime to any part of the said property without the express permission and/or authority of the plaintiff in writing.
After taking evidence from the parties and the exchange/adoption of written addresses by counsel, the learned trial judge in a considered judgment dated 10th July, 2007, granted all the reliefs claimed by the Plaintiff before it.
It is worthy of note that the respondent did not make any counter-claim praying that the land, the subject of the suit be declared as his. The said Respondent did not also make any counter-claim praying for the nullification of the Will of Mr. Okiy. Hence, the trial High Court in its finding came to the conclusion rightly that the matter before it was not a probate one and that nobody was challenging the validity or otherwise of the Will of Mr. Okiy.
The Respondent herein was dissatisfied with the judgment of the trial court and he filed notice of an appeal to the court below on the 19/03/04. There were series of multiple applications filed before the lower court and the appeal was eventually heard on the 22nd May, 2007. The lower court gave judgment in favour of the Respondent herein on the 10th July, 2007.
The appellant herein was dissatisfied with the said judgment of the lower court and filed his notice of appeal against same on the 19th September, 2007.

In compliance with the Rules of Court, parties filed their briefs of argument as follows:-
1) Amended Appellant's Brief of Argument was settled by Olabode Olanipekun, Esq. and filed on the 5th January, 2016.
2) Amended Respondent's Brief of Argument was settled by G. A. Okoh, Esq. and filed on 10th February, 2016.
3) Appellant's Reply Brief of Argument was settled again by Olabode Olanipekun, Esq. and filed on 9th March, 2016.
On the 20th February, 2017 when the appeal came up for hearing, counsel adopted their respective briefs of argument. On the one hand and on behalf of the appellant, his learned counsel Mr. Olabode Olanipekun, Esq. adopted and relied their briefs of arguments and urged in favour of allowing the appeal. On the other hand however, G. A. Ekoh, Esq., the counsel representing the respondent found no merit in the appeal and submitted that it should be dismissed.

From the seventeen (17) grounds of appeal filed, the five issues distilled for determination on behalf of the appellant are as follows:-
1) Considering the non-service of the requisite and fundamental Court processes/hearing notices on the appellant by the lower court, whether the lower court is not bereft of jurisdiction to adjudicate on and determine the appeal before it, thus rendering its judgment of July 10, 2007 null and void - Grounds 1, 2, 3, 4 and 5.
2) Considering the fact that the lower court was not seized of the documents tendered as Exhibits before the trial High Court, whether the lower court was clothed with the jurisdiction to adjudicate on the appeal and make pronouncements on the Exhibits that were not before it - Ground 15.
3) Having regard to the fact that the salient findings by the trial High Court on Exhibits "Y1" and "Y2" were neither appealed against nor impeached by the lower court, whether the lower court did not fall into grave error in using the said Exhibits to upturn the judgment of the trial High Court and vest title of the disputed land in the Respondent - Grounds 9, 10, 13, 14 and 16.
4) Whether or not the lower court did not fall into very serious error in its aspersions on, castigations of and conclusions on the Will of Mr. Okiy - Grounds 6, 8 and 12.
5) Having regard to the evidence on record on which the trial High Court based its unassailable judgment, coupled with the position of the law regarding the issues actually arising for determination based on the claim of the Plaintiff/Appellant, whether the lower court did not fall into a grave error by upturning the judgment of the trial High Court and giving judgment for the Respondent - Grounds 7, 11 and 17.

Also on behalf of the respondent, five issues were distilled. While issues 1 and 2 are reproduction of those of the appellant, issues 3, 4 and 5 however are as follows:-
3) Whether the Appellant who was aware of the pendency of this appeal at the lower court (Court of Appeal) and decided to stand by and watch can complain of breach of fair hearing.
4) Whether the lower court (Court of Appeal) was right in setting aside the judgment of the trial court.
5) Whether the issues formulated by the Respondent as Appellant at the lower court (Court of Appeal) were not tied to the grounds of appeal filed by him or were at large and whether the issues do not relate to the judgment of the trial court.
For the determination of this appeal, I see it appropriate to take the 1st issue raised by both the appellant and the respondent. The appellant in raising the issue has posed a very fundamental question wherein he said:-

"Considering the non-service of the requisite and fundamental Court Processes/hearing notices on the Appellant by the lower court, whether the lower court is not bereft of jurisdiction to adjudicate on and determine the appeal before it, thus rendering its judgment of July 10, 2007 null and void."

The central pivot of this issue is seeking to establish the following material facts as to whether the appellant was duly served with the notice of appeal, other processes filed by the respondent at the lower court and also the hearing notices.

On behalf of the appellant, it is conceded by his counsel that J.H.C. Okolo, SAN appeared for the appellant herein, as Plaintiff before the trial High Court; that he concluded his Brief when judgment was given in favour of the appellant. The learned counsel conceded further that, while in a good number of situations, the same counsel would be briefed by the same parties to handle their appeals, it is not within the jurisdiction of any counsel that his brief continues from trial to appeal; that it is even unethical for counsel to so assume.

It is mandatory, learned counsel re-iterates that, apart from being briefed to continue with a particular appeal as counsel to a particular party, there must be service of that notice of appeal on that counsel, duly received by him and signed for. Counsel submits further that there is no shred of evidence on record that J.H.C. Okolo, SAN was either presented by the appellant as his counsel before the lower court or that Okolo, SAN himself accepted service of the Notice of Appeal.
Throughout the entire record of proceedings, counsel submits, there is no proof of service of the Notice of Appeal on Okolo, SAN. He cites in buttress of his submission the provision of Order 2 Rule 6 of the Court of Appeal Rules, which states that, it is mandatory for the service of the Notice of Appeal on a Respondent to be personal.
The learned counsel, in confirmation of the absence of service, drew the Court's attention to the fact that records were not settled by parties in this case whereby the Respondent can argue that a record of Appeal was served either on the Appellant or J.H.C. Okolo, SAN.
In further expatiation, the counsel related copiously to the two motions for substituted service on the appellant and also the one to file appellant's Brief out of time which were both filed on the 20th June, 2005.
The credibility of one, Counsel argues was thrown into question when regard is had to the exparte order made only on the 25th January, 2006 for substituted service: that the respondent at every occasion, had seriously contradicted himself on this fundamental issue of service, thus revealing that no service was at all effected on the appellant.
Counsel, in buttress of his submission further, cited a number of decided authorities inclusive of:- Odunze V. Nwosu (200) 5-6 SC 40 at 58-59 and First Bank of Nigeria Plc V. T.S.A. Industries Ltd (200) 17 WRN 40 at 78.
Counsel submits further that, from the record of appeal before the Court, the evidence reveal that it was never compiled by the High Court Registry.
On a critical examination of the application for departure from the Rules and the Court Order thereon, the appellant's counsel related specifically to the Enrolment Order made by the lower court on the 25th January, 2006 in the following terms:-
"The Appellant's Brief and all other processes in this appeal are to be served on the Respondent by substituted means through his Attorney Architect David Moh whose address is No. 2, Idoha Street, Independence Layout, Enugu."

It is not on record, Counsel argues, that the Respondent went back to the lower court to have a further substituted service permitted on the Appellant through Mrs. Mma Moh. A critical analysis was made by counsel of purported hearing notices of processes and affidavits of service on different and multiple addresses in respect of diverse appeal numbers.
A typical example is where the learned counsel sharply drew the Court's attention to a purported hearing notice in respect of the judgment of the lower court in Appeal No. CA/E/131M/04 which was purportedly effected on 27th June, 2007, but is without any specified date of judgment.

The hearing notice was also purportedly effected on 'His Sec' without any name attached thereto.
It is submitted by counsel in continuation that, a perusal of the records of appeal/proceedings, as well as the purported hearing notices was to show that the proceedings before the lower court were, and still remain a complete nullity; that the hearing notices attached, apart from contradicting themselves, tell lies against one another; that they all oscillate from half truth to absolute falsehood.
For purpose of driving home the point further, the learned counsel affirms that, none of the notices indicates what specific hearing was to take place; that the brief of argument was never served. The lower court, counsel submits was in error when it made far reaching declarations that were not even in issue before it; that in making those declarations, the lower court's duty to hear the appellant assumed a higher threshold; that the lower court assumed jurisdiction over an incompetent appeal which suffers from the fundamental defect of non-service of originating process. See Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) 377 at 393.

The learned counsel, in the circumstance, is urging this court to set aside the entire proceedings and all processes filed, as well as the judgment of the lower court, for failure to serve the appellant as respondent before it, with the originating process.
The Counsel urges the court to allow this appeal, set aside the decision of the lower court and in its place, restore the judgment of the trial High Court. This, counsel affirms is predicated on the fact that the judgment of the lower court is a nullity and/or was delivered without jurisdiction, having regard to the fact that appellant was flatly denied his fundamental and inalienable right to fair hearing.
In response to the 1st issue raised by the appellant, the respondent's counsel submits that their notice of appeal to the lower court was dated and filed on 19th March, 2004; that same was served on the appellant through the said address of service, he provided in his originating process i.e. his counsel's address: that the said Notice and Grounds of Appeal were served on his counsel, J.H.C. Okolo, SAN & Co. 162B Zik Avenue, Uwani, Enugu. In addition, the learned counsel further confirmed that all other processes filed at the lower court were also served on the appellant through his said counsel; that Order 3 Rule 6(2) of the Court of Appeal Rules 2002, under which this appeal was decided, allows the appellant to be served Notice and Grounds of appeal and other processes through his said address for service at the trial court until the party involve or his counsel files his notice of change of his address for service. In this case, counsel argues, no such notice of change of his address for service was filed.

In further submission, the learned counsel restates that, with the combined effect of the provisions of Order 5 Rule 6(3) of the High Court Rules of Anambra State 1988 (Applicable to Enugu State) and Order 3 Rule 6(2), Order 1 Rule 3(4) and (5) also Order 3 Rule 7(4) of the Court of Appeal Rules 2002, service of Notice and Grounds of Appeal and other processes made on the address provided by the other party at the trial court, until it is changed, is good and proper service.
The appellant, as plaintiff, counsel submits, in his testimony at the trial court testified as PW1 and gave his address as No. 4811 North Boulevard Balan Road LA 70806 U.S.A. (page 28 of the record). In compliance with the provision of Order 5 Rule 6(3) of the High Court Rules of Anambra State 1988 (Applicable to Enugu State), the appellant provided his mandatory address for service within jurisdiction as care of his counsel as follows:-
" J.H.C. Okolo SAN & Co.
PLAINTIFF'S COUNSEL
162B ZIK AVENUE ENUGU."

The learned counsel submits that there is no evidence on record that the appellant has changed his address of service within jurisdiction up to this moment, as provided by Order 1, Rule 3(4) and (5) and Order 3 Rule 7(4) of the Court of appeal Rules 2002. It. is the contention of counsel therefore that the service of the said Notice and Grounds of Appeal on the appellant, who resides in the United States of America, through the stated foregoing address of service within jurisdiction, which was provided by him cannot be held as improper service of the Processes. Also that the allegation of the absence of fair hearing does not hold.

To buttress his submission further, the learned counsel cited a number of decided authorities as follows:-INEC V. Musa (2003) 3 NWLR (Pt. 806) 72 at 195 -196; Atoyebi V. Governor of Oyo State (1994) 5 SC NJ 62 at 84; Eke V. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 532; Jikantoro V. Dantoro (2004) All FWLR (Pt. 216) 390 at 414 - 415; Chief M.O.A. Agbaisi & Ors V. Ebikorgi (1997) 4 NWLR (Pt. 502) 630; Salami V. Oke (1987) 5 NWLR (Pt. 63) 1 at 9; Okike V. L.P.D.C. (2005) 15 NWLR (Pt. 949) 471 and Auto Import Export V. Adebayo (2005) 19 NWLR (Pt. 959) 44.
In the circumstance, counsel submits, that the appellant cannot therefore deny the fact that he was served the Notice of Appeal on 19th March, 2004, through his address for service provided in his originating process filed at the trial court i.e. C/o J.H.C. Okolo, SAN, 162B ZIK AVENUE, ENUGU; that the Notice of Appeal was received by the Chamber's Secretary, Mrs. Angela Ozobu as shown in the certified true copy of the proof or affidavit of service attached to this brief as Annexure 1.

The counsel submits further that the subsequent service of the motion for departure and record on the Appellant's Attorney, Arc. David Moh after the motion had been argued and granted is superfluous and did not vitiate or render the earlier service of the processes on the appellant, through his counsel, J.H.C. Okolo, SAN, incompetent. Counsel cites the case of Jikantoro V. Dantoro (2004) All FWLR (Pt. 216) 390 at 415, in support.
It is submitted by learned counsel therefore that the service of the said processes and subsequent hearing notices served on the Appellant's Attorney, Arc. David Moh, a professional Architect by serving on his Secretary, Mrs. Mma Moh is good service because the court did not order that he, Arc David Moh be served personally.
Furthermore, that service on a professional like Lawyers, Doctors, Architects, Surveyors etc through their office secretary is proper/good service. Counsel cites the case of A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt. 782) 575.

It is the submission of Counsel also that, with the appellant having given consistently, his address for service as care of his counsel, J.H.C. Okolo, SAN A Co. 162B Zik Avenue, Enugu since the commencement of this case at the trial court till date, he cannot now resile from accepting or receiving the processes served through the said address or raise the issue of non-service or improper service of all the processes. Till this moment, counsel submits, the appellant has not changed his address for service or returned to the lower court registry any of the processes served on him.
In the result therefore, the learned counsel for the respondent has urged this court to dismiss this appeal for the following reasons:-
(a) The Appellant was duly served with the Notice and Grounds of Appeal filed in respect of this appeal at the lower court through the address for service within jurisdiction provided by him.
(b) The Appellant, who was aware of the pendency of this Appeal at the lower court and decided to stand by and watch, cannot now complain of breach of fair hearing.
(c) The Appellant was given an ample opportunity to present his case but he refused to take advantage of same thereof.
In reply to the respondent's counsel, the response on behalf of the appellant has centered on statements of facts contained at paragraphs 2.0 - 2.12 on pages 1 - 5 of the respondent's brief which the appellant's counsel argues are not only inaccurate, but an apparent attempt to obscure the thrust of this instant appeal.
The learned counsel graphically drew the court's attention to some obvious points which were amply argued by the appellant which the respondent has not responded to. The counsel urged that the appeal be allowed.

RESOLUTION OF THE ISSUE
The first issue relates squarely to the question of service of process. In other words, whether the appellant herein was duly served with the Notice of Appeal, other processes filed by the Respondent at the lower court and the hearing notices.
On the one hand, while the appellant is vehemently protesting the total absence of any service of the processes and claim ignorance of the proceedings at the lower court, the respondent on the other hand disagrees and holds that the appellant is only playing the ostrich.
The law is trite and well settled on the fact that service of the initiating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity.
Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any court no matter its status. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record.

As stringent as the procedures in Military Tribunals are, service of process is made fundamental and nothing can be done outside it. It is no wonder therefore that Rules of Court all over, make adequate and elaborate provisions for service of any initiating process in particular and other processes in general.
Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under section 36 of the Constitution to have an initiating process or hearing notice in respect of any proceedings served on him, such service or non-service, as the case may be goes to the root of the jurisdiction of the adjudicating court. Put differently, a court will not be clothed with jurisdiction to adjudicate on any matter if one of the parties has not been served with either the initiating process of the hearing notice for a particular day or proceedings. Section 122 of the Evidence Act 2011 (as amended) is very specific on the procedure followed by the Court in ensuring that adequate service is effected on all parties. In the absence of proper service, there can be no adjudication. It is the practice and the court has made it a point of duty to satisfy itself on the question of service.
I have carefully read and perused the record of proceedings of the lower court in respect of this appeal. The nearest information I could get on the proceeding was at page 331, where the appellant's counsel now respondent was in court and he adopted their brief of argument. There was no information relating the respondent now appellant before us.
Also at page 335 of the record of appeal, their Lordships at the lower court had this to say in the course of reading their judgment.
"The respondent even though duly served with the appellant's brief of argument and other court processes in this appeal through the Respondent's Attorney - Arc bavid Moh, he did not file the Respondent's brief neither was he represented at the hearing."

It is hard, but true to say that none of the measures specified above, in ensuring service of process on the appellant, was taken before the lower court embarked on adjudicating on the proceedings from which the appeal stemmed. This I say because, the record is meant to serve as a guideline of all that transpired at the lower court.
In other words, a close look at the Record of Appeal reveals clearly that at no point in time did it reflect that the Notice of Appeal from the trial High Court to the Court of Appeal, which is the initiating process, was ever served by the trial High Court Registry or the Respondent on the Appellant. In a very recent unreported Appeal No. SC. 660/2015 - Ihedioha V. Okorocha delivered on 29th October, 2015, at pages 29-32 also 39 the decision of this court, the foregoing principle was re-affirmed wherein it struck out the appeal before it for non-service of the notice of appeal in the following terms:-
"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 is rules are obeyed. ------------------------------------------
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the court must draw a dichotomy between non-compliance arising from non-service of the court process as opposed to and distinct from non-compliance arising from other procedural aberrations like non- endorsement of the court process.---------
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). ----------------------------------------------------------
Any breach of this principle renders the proceedings a nullity. ------------ Service of process, I must say is a fundamental issue and condition precedent before the court can have competence to adjudicate, I must say that the appellants made a serious blunder in this appeal by treating the issue of service of originating process with levity
This appeal was not commenced by due process of law as condition precedent to assumption of jurisdiction by the Court were absent." (Emphasis provided)

By analogy, the respondent in the appeal at hand who was the appellant at the lower court ought to have known that the appellant herein was to be served personally and where that failed, the service ought to have been by substituted means by an order of court sought and obtained.
The respondent had failed to comply with the rules of court since the processes were not ex-parte proceedings. The failure to put the appellant on notice was fatal therefore to the respondent's case.
It has been re-iterated by this court in the case of Ihedioha V. Okorocha (unreported supra) that a Notice of Appeal, being an originating process, is fundamental to the jurisdiction of the court and it must be served personally on the other party.
On the question of a court's illegibility in assuming and exercising jurisdiction over matters brought before it, the conditions precedent are clearly specified as laid down in the celebrated case of Madukolu V. Nkemdilim (1962) 2 SC NLR 341. The requirements include the fact that the case must come before the court, initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
Again and on the fundamental institution of service of process, this court, in the case of Sken Consult (Nigeria) Ltd & Anor V. Ukey (1981) 1 SC 6 at 26, unanimously held after reference made to the Madukolu's case supra, and said:-
"The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice."
The absence of service forecloses foundation. See again the case of Macfoy V. UAC Ltd (1962) AC 152 where the absence of foundation denotes that:
"you cannot put something on nothing and expect it to stay there. It will collapse."

The provision of Order 2 Rule 6 of the Court of Appeal Rules, stipulates that it is mandatory for the service of the Notice of Appeal on a Respondent to be personal. The Rule states as follows:-
"Except as may be otherwise provided in these Rules or in other written law, no notice or other written communication in proceedings in the court need be served personally except the notice of appeal."

It is on record that the Respondent's counsel at the lower court did ask for a Departure from the Rules, by motion dated 1st September, 2004, so that he could submit the bundles of documents as the records for the hearing of his appeal at the lower court. The consequential effect is that, where is no record, there could not have been any Notice of Appeal incorporated therein.
It is intriguing also that the motion for substituted service on the appellant is contained at page 269 of the record. It was dated 20th June, 2005. Paragraphs 9 and 10 of the supporting affidavit prayed that all the processes be served on the appellant, through his Attorney, Arc. David Moh.
Also at page 273 of the record is another motion dated 20th June, 2005, seeking an order to file appellant's Brief out of time.
As rightly submitted by the learned counsel for the appellant, by filing both motions on the same date, it portrays that the one tells lies against the other. It is obvious also that the motion for substituted service is Ex-parte, while the one for extension of time purports to put the appellant's address for service as c/o Arc. David Moh of No.2 Idoha Street, Independence layout, Enugu. This is interesting because in actual fact, the order for substituted service was not made until Wednesday, 25th January, 2006. This is evidenced clearly on the last page of the record of appeal wherein the Enrolment of the order Ex-parte is exhibited.
On a thorough perusal of the record of appeal before us, it beats ones imagination that the respondent did set out to use three different addresses as the media used to serve his processes at the lower court. In other words, in one breath, the respondent would state that the Notice of Appeal or some processes were served on J.H.C. Okolo, SAN, in another breath service was on Arc. David Moh and also in yet another breath on Mrs. Mma Moh.
In the