Whether Failure to Serve Some of the Parties in A Suit Will Deprive the Court of Jurisdiction to Adjudicate on the Matter

CASE TITLE:  CHIDIRE v. OBIA & ORS (2023) LPELR-60071(CA)

JUDGMENT DATE:  23RD FEBRUARY, 2023

JUSTICES:                 RITA NOSAKHARE PEMU, JCA

                                  OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA

                                  ADEMOLA SAMUEL BOLA, JCA

PRACTICE AREA:          SERVICE OF COURT PROCESS(ES)

FACTS:

The 1st Respondent who was the Plaintiff at the trial Court filed an action against the Appellant and the 2^nd-7th Respondents via an originating summons seeking several reliefs.

Subsequently, the 2nd-6th Respondents (2nd – 5th Defendants) filed a notice of preliminary objection challenging the jurisdiction of the trial Court on grounds of non-service of the suit on the 2nd, 4th, and 5th Respondents.

Another preliminary objection was filed by the 2nd – 6th Respondents on the ground inter alia of lack of locus standi, non-justiciability of the subject matter, statute bar and abuse of process of Court.

Ruling on the preliminary objection, the trial Court ruled that the 4th and 5th Respondents were not properly served, while other Defendants were duly served including the Appellant with the originating summons. The trial Court refused to strike out the entire suit but struck out the names of the 4th & 5th Respondents (Defendants) as parties to the suit. The Court held that the 1st Respondent had locus standi. That the matter was justiciable and thus not the domestic affairs of the 6th Respondent. In respect of the suit on merit, the trial Court granted all the reliefs of the 1st Respondent.

Aggrieved by the judgment, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues thus:

“1. Whether the trial Court was wrong when it proceeded to assume jurisdiction to hear the substantive suit in the absence of the precondition necessary for assumption of such jurisdiction.

2. Whether the trial Court was not in error when it held that the person who signed Exhibit “4” relied upon by the 1st Respondent was a member of the Sub-Committee appointed by the Seven Man Committee set up by the National Working Committee of the 6th Respondent and that such Committee had the power to act on behalf of the 6th Respondent.

3. Whether the learned trial Judge was wrong when he discountenanced Exhibit “1” of the Appellant and that he did not produce the result sheet he was issued for the Primary Election.”

COUNSEL SUBMISSION

Learned counsel for the Appellant submitted that the trial Court was wrong when it proceeded to assume jurisdiction to hear the substantive suit in the absence of the pre-condition necessary for the assumption of such jurisdiction. Counsel referred to the case of SDPC V. Agbara (2016) 1 NWLR (Pt. 1496) 353 at 369.

He submitted that one of the most important conditions precedent to the exercise of jurisdiction is the service of the Court processes on the parties. In the instant case, it is on record that the originating summons filed by the 1st Respondent was not served on all the parties to the case. Furthermore, counsel stated that the issue of non-service was brought to the attention of the Court by way of preliminary objection challenging the competence of the suit and the jurisdiction of the trial Court to hear and determine same.

That the trial Judge found that the 4th and 5th Respondents were not served with the originating summons. He stated that rather than decline jurisdiction to hear the matter on the ground of non-service of the originating process which was jurisdictional, the trial Judge proceeded to strike out the names of the 4th and 5th Respondents and then went on to assume jurisdiction to hear and determine the suit in favour of the 1st Respondent.

Counsel posited that lack of service constitutes a serious and fundamental defect in the entire proceedings at the trial Court and thus rendered the judgment delivered on the 21st December, 2022 null and void.

1^st Respondent’s counsel in response submitted that the Appellant having been duly served with the processes, had no locus standi to challenge the judgment or seek to nullify the proceedings on the ground of alleged improper service of the originating summons, not on himself but on some other parties that are, the 4th and 5th Respondents in this case.

He referred to the case Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181 at 231-232. Counsel submitted that having found out that only the 4th and 5th Respondents were not properly served with the originating summons while the other five persons were served, the Appellant, 2nd, 3rd, 6th and 7th Respondents could be proceeded against.

The 2nd-7th Respondents filed no Brief of Argument at the Court of Appeal.

DECISION/HELD:

In conclusion, the appeal was dismissed and the judgment of the trial Court was affirmed.

RATIO:

PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Whether non-service/improper service of originating process(es) on one or two parties while others have been duly served will deprive the Court of jurisdiction to adjudicate on the matter; who can raise the issue of non-service/improper service

“​In this issue, it is evidently clear that only the 4th and 5th Defendants were not served with the Originating Processes at the lower Court while the other Defendants were duly served. Should the whole case be struck out by the lower Court because the 4th and 5th Defendants were not served? Does failure to serve one or two parties in an action with Seven Defendants deprive the Court of jurisdiction to adjudicate on the matter?

There is no doubt the Appellant who was one of the Defendants at the lower Court was duly served with the Originating Processes, he appeared before the Court thereby subjecting himself to jurisdiction after due service of processes of him. The other parties that are the 2nd, 3rd, 6th and 7th Defendants were equally served. They also submitted themselves to the jurisdiction of the Court. The 2nd, 3rd, 6th and 7th Defendants did not complain of lack of service or improper service on them.

It is the considered view of this Court that the Appellant is bereft of the locus standi to complain of no service or improper service on behalf of the aforesaid parties. Only the affected parties could complain of lack of or improper services, being parties directly affected. It appears the Appellant was crying more than the bereaved. I refer to the cases cited by the 1st Respondent, the authorities are apt and opposite in the circumstance. In the case of Zakirai V. Muhammed (2017) 17 NWLR (Pt. 1594) 1st at 231 – 233 where Augie, JSC had this to say;

“For a party to apply for proceedings to be nullified by reason of the failure of service (including endorsement as to service out of jurisdiction) where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not open to every party to the proceedings to make such an officious complaint. In the instant case, the 2nd and 3rd Respondents (directly affected) did not need the appellant to fight their battles. The irony was that the 2nd Respondent that he was fighting for had filed briefs supporting the decisions of the two lower Courts against him. In the circumstances, it would be a disservice to the justice system to allow the Appellant to get away with what did not concern him at all.”

I also refer to the decision of the apex Court in the case of Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 at 543 Per Wali, JSC. The Court held:

“It is not in dispute that neither the 1st Respondent nor the 3rd Defendant complained against the non-service of the Court processes referred to above or any other order made. It does not, therefore, lie in the mouth of the Appellants to complain on their behalf. It is abundantly clear from the printed record that neither the 3rd Defendant nor the 1st and 2nd respondents complained against non-service of any Court process on him, in fact throughout the proceedings in this case the 3rd Defendant did not put up any appearance. He did not join the issue with the appellants on any aspect of the case. He remained a silent defendant who from the look of things had no stake in the matter he was just a nominal party. The Court of Appeal was perfectly right when it stated thus in the lead judgment:

“The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order was made for the simple reason that a condition precedent for the exercise of the Court’s jurisdiction in making the order. has not been fulfilled… I am therefore clearly of the opinion that for a party to a suit to apply for the proceedings to be nullified by reason of the failure of service, where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such a complaint is sustainable, it will yield startling results. Thus, an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings has not served some process.”

​Against this backdrop, the contention of the Appellant that the lower Court should have declined jurisdiction having ruled that the 4th and 5th were not properly served cannot be sustained in the circumstance.

The lower Court was on the right pedestal when it struck out the names of the 4th and 5th Defendants only having found that they were not properly served. The lower Court could not have declined jurisdiction in respect of the Pre-Election Matter instituted by the 1st Respondent in this appeal; when the 2nd, 3rd, 6th, and 7th Defendants/Respondents had been served with the Originating Summons and other condition precedents satisfied. The lower Court was therefore right when it proceeded to assume jurisdiction to hear the substantive suit having been satisfied with the pre-condition for the assumption of jurisdiction.” Per BOLA, J.C.A.

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