The Appellant and the Second Respondent/Applicant contested the primary election of the People’s Democratic Party (PDP), along with other candidates. Being aggrieved by the outcome of the primary election, they approached the Federal High Court for a determination of who the party’s nominated candidate for the Cross River State North District Senatorial by-election was. The court found for the Appellant, and pronounced him as the PDP’s flag-bearer for the Senatorial election. By this decision, the Appellant contested in the bye-election and won. He was declared the winner, as and sworn in as the Senator representing the Cross River State North Senatorial District.

Meanwhile, the First Respondent had filed a suit against the Second and Third Respondents at the High Court of the Federal Capital Territory, Abuja in Suit No. CV/77/2020, challenging the nomination of the Second Respondent as PDP’s candidate for the by-election. In that suit (leading to the present appeal), the Appellant and the PDP were not joined as parties. The First Respondent had prayed the court for a determination of some questions relating to the information supplied by the Second Respondent to INEC, alleging that the said information about the educational qualification of the Second Respondent was false, and that the primary election of the PDP was conducted without valid delegate list of the party. The trial court dismissed the suit, for failure of the 1st Respondent to prove the assertions in the Originating Summons; however, the court made some positive orders in favour of the Second Respondent, by directing the Third Respondent (INEC) to publish the name of the Second Respondent as the candidate of PDP in the Senatorial by-election. This order was made, despite the subsisting order of a court of co-ordinate jurisdiction in favour of the Appellant. The First Respondent’s appeal against the decision of the trial court was also dismissed, but the appellate court preserved the order of the trial court made in favour of the Second Respondent.

Upon becoming aware of the decision of the trial court delivered on 17th December, 2020 (which decision affected his interest), the Appellant filed an application dated 23rd December, 2020 before the Court of Appeal, seeking leave to appeal against the decision of the Court of Appeal, as an interested party. The application was addressed and served on the Respondents, through their counsel on record. The court granted the application on 29th December, 2020 and the Appellant filed his Notice of Appeal to the Supreme Court on that same day, and purportedly served same on the Respondents.

At the Supreme Court, the First and Second Respondents raised a Preliminary Objection to the jurisdiction of the court, on the ground that the Notice of Appeal was not served on the First and Second Respondents.

The issue considered by the court in its determination of the Preliminary Objection was –

Whether from the facts and circumstances of this application and considering the applicable precedents of the Honourable Court on the subject of service and notice, the application ought to be granted?

Arguing the Preliminary Objection, Counsel for the First Respondent submitted that a Notice of Appeal is an originating process by which an appeal is commenced in an appellate court, just as a Writ of Summons or any other mode of commencement of an action, at a High Court. He submitted that an originating process is a fundamental process which, if found to be defective, must be struck out by the court. Counsel argued that Order 2 Rules 3 and 4 of the Supreme Court Rules, mandates service of the Notice of Appeal on all the Respondents. Thus, failure of the Appellant to serve the Notice of Appeal on the First Respondent personally, is fatal to the jurisdiction of the court to hear the determine the appeal, having not been initiated by due process of law. Counsel relied on ROSSEK v ACB LTD (1993) 8 NWLR (Pt. 312) 382 at 437, in support of his position. Counsel contended further that whatever the Appellant purportedly served does not count, as the address endorsed on the process was a wrong address in view of the combined effect of Order 2 Rules 3 and 4 and Order 6 Rule 2(1) of the Supreme Court Rules. In support of this position, counsel for the Second Respondent submitted that the Notice of Appeal does not contain the address of the 2nd Respondent for service, and that same was not served on him. He opined that this omission was incurable and rendered the appeal incompetent, in line with Order 2 Rule 3(1)(b) of the Supreme Court Rules.

Responding to the submissions above, Counsel for the Appellant argued that with the endorsement of an address for service on the First Respondent, the Notice of Appeal, on its face, is competent and cannot be set aside. Counsel posited that what can be set aside is only the service of the Notice of Appeal on the address endorsed thereon, and given the fact that the law allows substituted service with or without a failed attempt at personal service, the issue of the address for service becomes insignificant. He argued that the First Respondent cannot insist on personal service on him, when the court had earlier made an order of substituted service. He reasoned that the essence of service is to give notice to a party in litigation of the pendency of court proceedings, so that the party can take steps to have his interests represented in court and take advantage of the constitutional provisions of fair hearing – SALEH v ABAH (2017) 12 NWLR (Pt. 1578) 100 at 126. Thus, Counsel for the Second Respondent, having filed his Respondent’s Brief of Argument without raising the issue of service therein, cannot belatedly raise the issue of service as an afterthought. Counsel argued on behalf of the Appellant, that the First and Second Respondent had waived any perceived or imaginary irregularity in service – EDIRU v FRSC (2016) 4 NWLR (Pt. 1502) 209.

In his reply to the submission about the order of substituted service, counsel for the First Respondent argued that the order was obtained through misrepresentation of facts. He argued that the Appellant intentionally endorsed a wrong address for service, and served the process on a stranger.

The Supreme Court noted that the First Respondent was not served personally with the Notice of Appeal, and the Appellant attempted to remedy this defect by his application for an order of substituted service. This order was granted at a time when the Second Respondent had filed his Brief of Argument, and the Appellant had filed a Reply Brief. At the time, the application of counsel for the Second Respondent seeking to strike out the appeal, was pending in court. Counsel for the Appellant did not dispute these facts, but argued that failure to effect personal service of a Notice of Appeal is a mere irregularity, which does not fundamentally taint the procedure as to render it invalid or a nullity.

Deciding the issue of law, the court held that personal service of an originating process, like a Notice of Appeal, is a fundamental requirement of the law – AKINLOYE v ADELAKUN (2000) 5 NWLR (Pt. 657) 530. Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents, and breach of the Rules is not a mere irregularity but a fundamental breach which goes to the foundation of the appeal – POPOOLA v BABATUNDE (2012) 7 NWLR (Pt. 1299) 302 at 331.

Their Lordships held that the service of Notice of Appeal (and other originating processes) is intimately tied to the jurisdiction of court, and constitutes the condition precedent which clothes the court with competence. It must be served personally on the Respondent unless directed or ordered by the court, or expressly exempted by the provisions of the law. It is not an irregularity that can be waived or cured – SKEN CONSULT (NIG.) LTD v UKEY (1981) 1 SC 4. Service of an originating process, like the Notice of Appeal, has a linkage with the impregnable right to fair hearing enshrined in the Constitution of the Federal Republic of Nigeria – IHEDIOHA & ORS. v OKOROCHA & ANOR. (2016) 1 NWLR (Pt. 1492) 147 at 199. Where service is not effected as required by law, the person who was improperly served, is entitled, ex debito justitiae, to have the so-called service set aside as a nullity – MARK & ANOR. v EKE (2004) 5 NWLR (Pt. 865) 54.

The belated attempt at remedying the situation, could not stand. The order of substituted service, was obtained after the Second Respondent had filed his Brief of Argument and application to strike out the appeal. The Supreme Court, which made the said ex-parte order, retains the inherent powers, in deserving circumstances (as in this case), to discharge the order – BOABAN v DIRHRE (2005) 16 NWLR (Pt. 951) 297. The court thereby, entered an order setting aside the ex-parte order of substituted service.

The Preliminary Objection Succeeds.

Three Justices of the Supreme Court gave a dissenting opinion, in this appeal. They reasoned that filing of a Notice of Appeal and its competence, is quite different from the competence of the service of the Notice of Appeal. They opined that Notice of Appeal in question, is not fraught with any inherent incompetence. It cannot be the law that a Notice of Appeal is incompetent, if the personal address of the Respondent is not indicated therein. What the provisions of Order 2 Rule 3 and 4 and Order 6 Rule 2(1) of the Supreme Court Rules, 2011 require, is an endorsement of the Respondent’s address on the Notice of Appeal and not necessarily the personal address of the Respondent, so long as the Respondent is personally served. Service of court process is a procedural issue which can be regularised; hence, the order of substituted service can be granted to cure the defect in the service, complained of by the Respondents – MOBIL v LASEPA (2002) 18 NWLR (Pt. 786) 1 at 32. The court must maintain its jurisprudence of substantial justice, rather than technical justice; thus, upon filing the motion for substituted service, it took precedence over the Notice of Preliminary Objection, and should have been heard first. The order for substituted service is a valid order of court which is binding, as there was no application to set it aside.

Appeal Struck Out by a Majority Decision of 4:3.

Chief Wole Olanipekun, SAN with Ahmed Raji, SAN; Mohammed Ndarani Mohammed, SAN and others for the Appellant.

S.I. Ologunorisa, SAN and others for the 1st Respondent.

Chief I.A. Adedipe, SAN and others for the 2nd Respondent.

Agada Elachi and others for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An Affiliate of Babalakin & Co.)