JOHNSON ODION ESEZOOBO V. J. O. SHABA & ANOR. (2017)

Background

This appeal arose from proceedings commenced by Johnson Odion Esezoobo at the High Court of Lagos State against Mr. J. O. Shaba and the Asset Management Corporation of Nigeria. A preliminary objection was filed on behalf of the first respondent challenging the validity of the service of the originating processes. The processes had been delivered to a member of staff in the first respondent’s chambers, identified as Kelani Olalekan, rather than personally to Mr. Shaba, who was sued in his individual capacity and under the name of his firm.

The High Court upheld the objection and set aside the service of the originating processes. The appellant appealed, arguing principally that the first respondent had taken steps in the proceedings by filing a statement of defence and a conditional appearance and had thereby waived any objection to the irregularity. The appellant also challenged the delay in delivery of the lower court’s ruling, contending that it was delivered outside the ninety-day period prescribed by section 294(1) of the Constitution. In addition, the appellant complained about the filing of multiple notices of appeal and about a preliminary objection filed on behalf of the second respondent after a change of counsel.

Issues

1. Whether the existence of two notices of appeal deprived the Court of Appeal of jurisdiction, particularly where one notice appeared to have been filed outside the statutory period.
2. Whether the delay in delivering the lower court’s ruling beyond ninety days occasioned a miscarriage of justice under section 294(1) and (5) of the 1999 Constitution.
3. Whether service of originating processes on a staff member in the first respondent’s chambers constituted personal service on the first respondent.
4. Whether the filing of a defence or other processes amounted to waiver of the objection to defective service.
5. Whether the second respondent’s preliminary objection was incompetent or constituted an abuse of court process because of the change of counsel.

Ratio Decidendi

The Court of Appeal held that an appellant may file more than one notice of appeal within the prescribed period and may subsequently abandon one or rely on another, or seek consolidation where appropriate. However, a notice filed outside the statutory period is incompetent unless time is enlarged. Since the notice contained in the record of appeal was filed within time and was the notice relied upon by the appellant, it validly initiated the appeal. The allegedly late notice did not deprive the court of jurisdiction.

The court further held that a notice of appeal is an originating process and is fundamental to appellate jurisdiction. Where the valid notice of appeal is absent or fundamentally defective, there is no competent appeal. In this case, however, a valid notice existed, so the preliminary objection was dismissed.

On delayed judgment, the court interpreted section 294(1) together with section 294(5) of the Constitution. Failure to deliver a decision within ninety days does not automatically render the decision a nullity. The complaining party must establish that the delay caused a miscarriage of justice. The court emphasised that the relevant consideration is not merely the length of the delay, but its effect on the judge’s ability to evaluate the evidence and reach a proper decision. Because the applications were determined substantially on documentary and affidavit evidence, the appellant failed to show that the delay impaired the evaluation of evidence or altered the outcome.

Court Findings

The court found that personal service of originating process on a defendant is both a requirement of the applicable rules and a condition precedent to the exercise of jurisdiction over that defendant. Personal service requires delivery of the duly certified process to the individual concerned. Service on a clerk or employee of a solicitor’s chambers could not be equated with personal service on the solicitor himself. Service on counsel may be valid for subsequent processes after the party has been properly served and counsel has entered appearance, but it does not replace personal service of the originating process.

The court rejected the argument that the first respondent’s filing of a statement of defence, conditional appearance or preliminary objection cured the defect. Where originating process has not been duly served, the court’s jurisdiction has not been activated. Steps taken in proceedings conducted without jurisdiction cannot create jurisdiction and cannot amount to waiver of a fundamental condition precedent. The High Court therefore acted correctly in setting aside the defective service.

The Court of Appeal also clarified that inherent powers are supplementary to, and dependent upon, a court’s statutory jurisdiction. A court cannot rely on inherent power to assume jurisdiction where a condition precedent has not been fulfilled. Although the trial court’s description of its power was not entirely precise, its substantive order setting aside the invalid service was correct.

Finally, the court held that a new counsel taking over a case need not file a fresh memorandum of appearance where one has already been filed for the party. The appropriate procedural step is an application or notice for change of counsel. The filing of an additional objection did not constitute an abuse of process because the earlier objection was withdrawn before it was argued and the respondent did not seek to prosecute competing processes simultaneously.

Conclusion

The appeal was dismissed for want of merit. The ruling of the Lagos State High Court setting aside service of the originating processes on the first respondent was affirmed. Costs of N50,000 were awarded to the first respondent against the appellant.

Significance

This decision reinforces the strict importance of proper service of originating processes in Nigerian civil litigation. It distinguishes fundamental defects affecting jurisdiction from ordinary procedural irregularities capable of waiver. It also confirms that constitutional delay in delivering judgment is not, by itself, sufficient to invalidate a decision; actual miscarriage of justice must be demonstrated. The decision provides practical guidance on multiple notices of appeal, the effect of late notices, changes of counsel, and the limited role of inherent judicial powers.