December 4, 2023

Importance of Hearing Notice and Effect of Failure to Serve Same where Required


In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos

Suit No: CA/L/589/2009

Before Their Lordships:
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal



This appeal is against the judgment of the High Court of Lagos State (trial Court).

The respondent at the trial Court instituted this action against the appellants and claimed outstanding salaries and entitlements, interest thereon at the prevailing bank rate of 30 per cent yearly, and cost of legal expenses. In response, the appellants, inter alia, filed an application challenging the jurisdiction of the trial court to entertain the action on the ground that the writ of summons had expired before it was served on them. On his part, the respondent filed an application on January 24, 2007, for the final judgment to be entered against the appellants for failure to file processes or take any steps in the matter.

The trial Court, without resolving the application challenging its jurisdiction, took the respondent’s application, granted the same, and entered judgment for the respondent as claimed. The appellants thus appealed to the Court of Appeal.

Issues for determination

The Court determined the appeal on the issues distilled by the appellants thus;
Whether the failure of the trial court to hear and determine the Appellants’ application challenging the trial Court’s jurisdiction was a violation of the Appellants’ fundamental right to a fair hearing under the 1999 Constitution of the Federal Republic of Nigeria.  

Whether the trial Court has jurisdiction to entertain the suit when the writ of summons had long expired before its service on the Appellants.

Whether the reliefs sought by the Respondent on the writ of summons being special damages in nature ought to be granted by way of a motion for judgment without calling oral evidence in support of same.

The respondent however filed a preliminary objection to the appeal, whereby he distilled the following issues for determination;

Whether the appellants/respondents can raise as grounds and issues of appeal in their several processes issues that did not arise from the judgment of the trial Court?
Whether the appellants/respondents who refused (despite over 40 adjournments) to comply with the rules of the trial Court on the regularization of their statement of defence, can approach this Court to determine any issue arising therefrom; the same not arising from the judgment of the trial Court?

Whether the sole recurring issue in all the grounds in the Notice of the Appeal is not a factual issue as against this appeal being on grounds of law?

Whether if the foregoing issues are answered against the appellants/respondents, there is no valid Notice of Appeal, this appeal cannot be properly described as a gross abuse of the process which this Court owes a duty to dismiss?

Respondent’s submissions on the preliminary objection
The respondent submitted that the issue of the expired writ of summons did not arise from the decision of the trial Court and as such appellants cannot raise such a question on appeal; CO-OPERATIVE & COMMERCE BANK PLC vs. EKPERI (2007) 1 SC (PT II) 130. Furthermore, Rules of Court are meant to be obeyed and since the appellants failed to regularize their Statement of Defence at the trial Court in compliance with the Rules of Court, they cannot on appeal seek to raise any issue with the said defence; THE OWNERS OF THE MV ‘ARABELLA’ vs. NAIC (2008) 5-6 SC (PT II) 189.

As regards the third issue, the respondent submitted that the issue of expiration of the writ of summons is an issue of fact and that the ground of appeal complaining about an error in law on the issue must therefore fail; Section 241 (1) (b) of the 1999 Constitution, which deals with appeals on grounds of law.

The respondent submitted on the fourth issue that a favourable resolution of the first three issues would mean that the appeal is an abuse of process of the Court and ought to be dismissed. The case of AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIGERIA LIMITED (2003) 5 MJSC 104 at 121 was referred to.
Appellants’ submissions on the preliminary objection

The appellants contend that they challenged the validity of the writ of summons in their application before the trial Court challenging the jurisdiction of the trial court to entertain the action. It was opined that even if the Statement of Defence was filed out of time, it only made the Statement of Defence voidable and that the same remained valid until struck out; UBA vs. NWORA (1978) 11 NSCC 59.

Appellants further submitted that the trial Court has held that it would hear the appellants’ application challenging its jurisdiction first, no other application can be heard unless the said order is set aside. Failure to consider the said application was a denial of the Appellants’ right to a fair hearing. The case of ODEDO vs. OGUEBEGO (2015) 13 NWLR (PT 1914) 36 was cited in support.

Resolution of the preliminary objection
The Court held that a ground of appeal should arise from the decision appealed against but that this is not exactly so in all circumstances. The appellants’ complaint on the expiration of the writ of summons before it was served raised an issue of jurisdiction of the trial court to entertain the action. The Court further held that the question of jurisdiction can be raised for the first time on appeal, even before the apex Court; PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHINCAL CO LTD (1992) LPER (2915) 1 at 23-24. The Court thus held that Appellants’ challenge to the jurisdiction of the trial Court was properly raised.

The Court further held that the determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground and not how a party has christened the ground. See NNUBIA vs. INTERCONTINENTAL BANK (2015) LPELR (24783) 1 at 12. The Court also considered the fact that Section 241 (1) of the 1999 Constitution creates an appeal as of right against final decisions in any civil or criminal proceedings. The Court thus held that since the decision of the trial Court appealed against is a final decision, the appellant can appeal against the same as of right and it is thus immaterial whether the grounds of appeal is of law or of facts or of mixed law and facts.
The Court thus dismissed the preliminary objection.

Appellants’ submissions on the main appeal
The appellants submitted that the lifespan of a writ of summons was stated to be twelve months and that since the respondent’s writ was not served within its lifespan, it became void. The appellants further submitted that parties cannot confer jurisdiction on the Court; OKOLO vs. UBN LTD (2004) 3 NWLR (PT 859) 87 at 108.

Appellants submitted their challenge to the Trial Court’s jurisdiction ought to be taken first before anything else; THE STATE vs. ONAGORUWA (1992) 2 SCNJ (PT I) 308. And that the Court must resolve every application before it; failure to do so would amount to a denial of the right to a fair hearing; ONYEKWULUJE vs. ANIMASHAUN (1996) 3 NWLR (PT 439) 637.

The appellants contended that the decision of the Trial Court was based on the respondent’s application dated January 3, 2007, but the same is non-existent and was never served on them. This they contended amounted to a denial of fair hearing; SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 40.

The appellants further contended that the reliefs claimed by the respondent are in the nature of special damages, which must be strictly proved; XTOUDUS SERVICES NIGERIA LTD vs. TAISEI (W. A.) LTD (2006) 11 MJSC 167 at 183.

Respondent’s submission on the main appeal
The respondent submitted that the appellants failed to comply with the Rules of Court on the entry of appearance and they could therefore not present any application, challenging the jurisdiction of the trial Court; THE OWNERS OF THE MV ‘ARABELLA’ vs. NAIC (supra).

The respondent further submitted that the appellants have challenged the service of the respondent’s motion for judgment dated January 23, 2007, for the first time on appeal, but the records show the service of the motion on the appellants. So, the appellants’ contention in that regard is an afterthought since the presumption of legality inures in favour of judicial proceedings; MINISTER FOR WORKS & HOUSING vs. TOMAS NIG LTD (2001) 48 WRN 119 at 151.

Respondent submitted that the issue of the expiration of the writ of a summons does not arise from the decision of the trial Court and so cannot be made a ground of appeal, and the said issue is a factual issue which cannot be a ground of law under Section 241 (1) (b) of the 1999 Constitution.

The respondent further submitted that the appellants were duly served with the Court processes but they elected not to respond to the motion for judgment. Having slept on their right to file their Statement of Defence, the appellants cannot complain as they are taken to have admitted the facts pleaded by the respondent; EDEM vs. CANON BALL LTD (1998) 6 NWLR (PT 553) 293.

Resolution of the issues in the main appeal
In resolving the issues raised, the Court held that the appellants were not on notice the day the respondent’s motion was argued. Service of hearing notice is a jurisdictional issue and failure to serve will result in the entire proceedings, no matter how well conducted being vitiated. See SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6. The Court thus held that failure to serve the appellants hearing notice as against the hearing date of the respondent’s application for judgment occasioned a breach of the appellants’ right to a fair hearing and rendered the proceedings a nullity. See FIRST BANK OF NIG PLC vs. T.S.A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 71-72.

The Court further held that since the issue of non-service of hearing notice on the Appellants has been resolved in the Appellants’ favour, a consideration of the other issues raised in the Appellants’ brief has become inutile; non-service of hearing notice being fatal to the decision of the trial Court. The Court thus set aside the decision of the trial Court. The case was remitted to the trial Court for hearing de novo by another judge.

The Court found merit in the appeal and accordingly allowed the same.


James Sonde, Esq.
For Appellant(s)

O. Ayeteni, Esq..
For Respondent(s)

Compiled by LawPavilion

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