ALL PROGRESSIVES CONGRESS (APC) V. ENGINEER GEORGE T. A. NDUUL & ORS. (2017)

Background

This was an interlocutory appeal from the ruling of the Court of Appeal, Makurdi Division, delivered on 13 April 2016. Engineer George T. A. Nduul, the 1st respondent, had commenced proceedings at the Federal High Court, Benue State, challenging the nomination of Barrister Benjamin Wayo by the All Progressives Congress to contest the party’s primary election for the Kwande/Ushongo Federal Constituency seat in the Federal House of Representatives. Nduul contended that Wayo was not qualified to contest and had allegedly failed to comply with the party’s constitution and guidelines, as well as relevant electoral requirements. The Federal High Court dismissed his claims on 10 December 2015.

Nduul appealed to the Court of Appeal. While that appeal was pending, he filed a motion on notice seeking an order that the appeal be heard on his brief alone because the respondents had allegedly failed to file their respondent’s briefs within the prescribed period. The motion was dated and filed on 11 April 2016, but it was heard and granted on 13 April 2016. The APC, which was the 2nd respondent before the Court of Appeal, challenged the order before the Supreme Court on the ground that it had not been served with the relevant motion and Nduul’s brief of argument, and therefore had not been given a proper opportunity to respond.

Issues

1. Whether the Court of Appeal had jurisdiction to hear and determine the motion seeking to have the substantive appeal heard on the appellant’s brief alone when the motion and relevant processes had not been duly served.
2. Whether the APC’s grounds of appeal, which raised non-service, jurisdiction and fair hearing, required leave to be filed.
3. Whether a ground of appeal raising jurisdiction must necessarily arise from or relate directly to the particular ruling under appeal.

Ratio Decidendi

The Supreme Court held that service of a court process, where service is required, is a condition precedent to the valid exercise of jurisdiction. Failure to serve the process is a fundamental defect that goes to the root of the proceedings. An order made against a party who was not served with the process giving rise to the order is a nullity and must be set aside as of right.

The Court further held that grounds of appeal complaining of non-service and denial of fair hearing raise questions of jurisdiction and fundamental procedural validity. Consequently, the appellant did not require leave to raise those grounds. A jurisdictional ground need not necessarily flow from the precise reasoning or conclusion in the decision appealed against, because jurisdiction is foundational and may be raised at any stage, including for the first time on appeal.

The Court also reaffirmed that lack of jurisdiction cannot be waived. Parties cannot confer jurisdiction on a court by acquiescence, estoppel, compromise, collusion or waiver. Where jurisdiction is absent, the entire proceeding is void, regardless of how carefully or correctly the matter may otherwise have been conducted.

Court Findings

The record showed that the Registrar informed the Court of Appeal that the respondents had been served on 23 March 2016. That information could not have referred to the motion dated and filed on 11 April 2016, since the motion did not exist on 23 March. The Supreme Court therefore concluded that the Registrar had either referred to a different process or had supplied an inaccurate account. There was no reliable evidence that the motion which was moved and granted on 13 April 2016 had been served on the APC.

Even apart from the absence of service, the motion was not ripe for hearing. It was filed on 11 April and determined only two days later, without compliance with the applicable Court of Appeal Practice Direction and the Court of Appeal Rules, including the period allowed for a respondent to reply. Order 7 rule 8 of the Court of Appeal Rules 2011 contemplated a period within which a respondent could respond after service. The accelerated hearing deprived the APC of a meaningful opportunity to present its position.

The Supreme Court explained that fair hearing is principally concerned with whether a party received a genuine opportunity to be heard, present its case and respond to the case against it. It is the fairness of the procedure, rather than the ultimate correctness of the decision, that determines compliance with the constitutional right to fair hearing. Since the APC had not been afforded that opportunity, the Court of Appeal’s ruling was procedurally invalid.

Conclusion

The Supreme Court unanimously allowed the appeal and set aside the ruling of the Court of Appeal delivered on 13 April 2016. The order directing that Nduul’s substantive appeal be heard on his brief alone was null and void because the motion had not been properly served and was not ripe for hearing. There was no order as to costs.

Significance

The decision emphasises the central importance of service in Nigerian appellate procedure. A party cannot be penalised for failing to file a brief or respond to an application unless the relevant processes have first been validly served. It also illustrates the close relationship between service, jurisdiction and fair hearing: defective service may simultaneously deprive the court of jurisdiction and violate the affected party’s constitutional right to be heard. The judgment further confirms that a court of record possesses inherent power to set aside its own void order, although an aggrieved party may also challenge such an order on appeal.