Background
Prince Collins Eselemo and Solomon Funkekeme both vied for the Delta State House of Assembly seat for Burutu South Constituency in the 2003 elections. Funkekeme was declared the winner, prompting Eselemo to file an election petition before the National Assembly, Governorship and Legislative Houses Election Tribunal, Delta State, seeking a fresh election.
The Tribunal appointed two panels to handle the volume of petitions. Eselemo’s petition was assigned to Tribunal No. 2, while initial processes, including substituted service on Funkekeme, were conducted by Tribunal No. 1 at Asaba. Respondents 2–6 were served without difficulty, but Funkekeme required substituted service.
Proceedings at the Tribunal
At the Tribunal’s sitting on July 28, 2003, neither Eselemo nor his counsel attended. The Tribunal adjourned for a final hearing on July 30, 2003. Again, Eselemo failed to appear, prompting respondents’ counsel to apply for a strike-out. The petition was struck out for want of diligent prosecution. Five days later, Eselemo moved the Tribunal to set aside its strike-out order and relist the petition, supported by an affidavit averring:
- He and his solicitors were unaware that a second Tribunal panel had been empanelled and his petition transferred.
- No hearing notice or respondent’s reply was served on him or his solicitors.
- He had attended Tribunal No. 1 on July 30 and found no listing for his petition.
- His absence was not deliberate and he remained ready to prosecute the petition on its merits.
No respondent filed a counter-affidavit. On August 6, 2003, the Tribunal dismissed the motion as “ridiculous,” holding that nothing in the affidavit warranted reconsideration of the July 30 strike-out order.
Issues
- Whether the Tribunal was justified in dismissing the application to set aside its strike-out order, in light of the evidence before it.
Ratio Decidendi
- Service of court process is a fundamental jurisdictional requirement. Non-service of a hearing notice is not a mere irregularity but a fundamental defect rendering proceedings a nullity (Scott-Emuakpor v. Ukavbe (1975) 12 SC 41; Odita v. Okwudinma (1969) 1 ALL NLR 228).
- Failure to serve process when required goes to the root of the court’s jurisdiction; any resulting order is void (Union Beverages Ltd. v. Adamite (1990) 7 NWLR (Pt. 162) 348; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6).
Court Findings
The Court of Appeal, per Muhammad, JCA, found unchallenged averments in Eselemo’s affidavit demonstrating non-service of the hearing notice on him or his solicitors. This failure to serve breached the principles of natural justice and deprived the Tribunal of jurisdiction to strike out the petition in Eselemo’s absence. The Court held that the Tribunal erred in glossing over the service issue and dismissing the application without consideration of the affidavit’s uncontested facts.
Conclusion
The appeal was allowed. The August 6, 2003 ruling dismissing Eselemo’s application was set aside, and the July 30 strike-out order was declared null and void. The election petition No. LHET/DT/25/2003 was ordered relisted before a newly constituted Tribunal. No order as to costs was made.
Significance
This decision reaffirms the fundamental importance of service of process as a jurisdictional prerequisite. It underscores that non-service of hearing notices constitutes a fundamental defect, invalidating any proceedings or orders made in the party’s absence. The case serves as a key authority on natural justice and jurisdiction in election petitions and other civil proceedings.