Contract Law

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CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Court of Appeal, Ibadan Judicial Division delivered on 15th February, 2001. By the aforesaid decision, the lower Court held that, the plaintiff’s suit was incompetent and was accordingly struck out.

The Appellant herein, being dissatisfied with the judgment of the Court of Appeal, sought and obtained leave of the said Court and appealed against the judgment thereof.

FACTS RELEVANT TO THE APPEAL
The Appellant was the plaintiff at the High Court. It filed an action against the Respondent who was Defendant, seeking for declarations and monetary claim for breach of contract arising from a contractual relationship which hitherto existed between the Plaintiff and the Defendant.
In the course of proceedings before the trial Court, plaintiff/appellant amended its statement of claim. The defendant filed an original statement of defence denying the claim of the plaintiff. However, in the course of proceedings, defendant amended its statement of defence, hence an amended statement of defence was filed. The plaintiff replied to the defence filed by the defendant.
Upon being served with the Writ of Summons and Statement of Claim, the defendant without filing any defence, moved the Court vide an application challenging the competence of the plaintiff’s suit. The said application was duly argued and dismissed. It is not out of place to mention that the application filed by the defendant was anchored on a complaint that no pre-action notice was issued and served on the defendant before the filing of the action.
Being dissatisfied with the ruling dismissing the preliminary objection, Defendant/Respondent filed an appeal against that decision. The appeal was abandoned and was not pursued by the Defendant.
In proving its case, plaintiff called three witnesses and tendered various documentary evidence admitted as exhibits. Defendant on its part called four witnesses and also tendered documentary evidence which were admitted as exhibits.
The learned trial Judge, after taking addresses of counsel to the parties delivered its judgment whereby it found for the plaintiff.
Being dissatisfied with the judgment delivered on 22nd January, 1996, Defendant/Respondent filed its notice of appeal against that decision. It is instructive to state that the notice of appeal as stated thereon was filed against the decision delivered on 22nd January, 1996 and no other decision i.e. to say it had nothing to do with the ruling delivered on 16th January, 1995. Also at the lower Court, the appeal filed against the decision of 16th January, 1995 was not consolidated with the appeal filed against the judgment delivered on 22nd January, 1996.
Furthermore, in considering the appeal filed before it, the Court of Appeal limited its consideration to the validity of Exhibit T (pre-action notice) tendered by the parties and held that, that notice did not satisfy the requirement of Section 46 of the Obafemi Awolowo University Act, as to issuance and service of pre-action notice.
The appellant being dissatisfied with the judgment of the Court of Appeal, obtained leave of that Court and consequently filed an appeal to this Court.
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In compliance with the Rules of Court, briefs were exchanged by all parties in the following terms:
1) Appellant’s Amended Brief of Argument filed on the 23/6/2016 but deemed properly filed on 3/10/2017 was settled by Tunde Babalola Esq.
2) Respondent’s Brief of Argument filed 15/2/2017 but deemed properly filed also on 14/11/17 was settled by Chief Akin Olujimi, SAN.
3) Appellant’s reply Brief of Argument filed 26/9/2017 but deemed properly filed on 14/11/17 was further settled by Tunde Babalola Esq.
On the 14/11/17 when the appeal came up for hearing, counsel adopted and relied on their respective briefs of arguments. The learned counsel for the appellant urged in favour of allowing the appeal, while the counsel representing the respondent urged that the appeal should be dismissed for want of merit.
The five issues formulated on behalf of the Appellant are as follows:
1. Whether in the eyes of the law and by the incompetent Brief of Argument filed by the Respondent at the lower Court, the Respondent herein (the Appellant at the Court of Appeal) had abandoned its appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio (Ground 1).
2. Whether the learned Justices of the Court below breached the Appellant’s right to fair hearing when it failed to determine the issue properly raised and canvassed before it with respect to the incompetence of Ground 1 of the Respondent’s Notice of Appeal filed and maintained on 9th February, 1996 before the lower Court (Ground 2).
3. Whether the Defendant/Respondent raised any competent question of pre-action notice to warrant its consideration by the Court below. (Grounds 3, 4, 5 and 7).
4. Whether Exhibit ‘T’ satisfied the requirement of a valid pre-action notice. (Grounds 4 and 6).
5. Whether the learned Justices of the Court below were right in failing to consider the merit of the case before it. (Ground 6).
On behalf of the Respondent, however the following three issues were considered as relevant and adequate for the determination of this appeal:
(i) Whether the appeal before the lower Court was incompetent as to invalidate the judgment of the lower Court in favour of the respondent- covers Ground 1
(ii) Whether the lower Court properly considered the issue of the competence of this suit raised by the respondent based on the failure of the appellant to serve Proper pre-action notice as required by Section 46(1) of the Obafemi Awolowo University Act – covers Grounds 2, 3, 4, 5, 7 and 8.
(iii) Whether in the light of the findings of the lower Court that the purported pre-action notice issued by the appellant was invalid and incompetent thereby rendering the suit based on it incompetent, the failure to consider the merit of the suit has caused the appellant any miscarriage of justice – covers Ground 6.

For the determination of the 1st issue to this appeal, the appellant’s counsel had drawn our attention to the appeal filed by the Respondent herein at the lower Court. The said respondent was the appellant before that Court. It is the contention of the appellant’s counsel herein that the respondent abandoned its appeal at the lower Court on the account of its brief of argument.
For the just clarification of the point raised by the learned counsel for the appellant at paragraph 1.03 of its Amended Brief of Argument, copious and thorough reference would be made to the record of appeal and specifically at pages 268 to 281 being the appellant’s Brief.
I have considered carefully, the said brief of argument filed by the respondent, who was the appellant before the lower Court. The observation in my view reveals that the brief filed by the respondent who was the appellant at the lower Court was signed on its behalf.
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Put differently, although the respondent claimed that the brief it filed as appellant at the lower Court, was authored by Chief Olujimi, SAN, the appellant herein, however holds a different opinion.
The entire argument by the appellant in its issue 1 is anchored on the submission that the lower Court acted without jurisdiction when it allowed the appeal of the Respondent, (Appellant at the Court of Appeal), when there was no competent brief before it.
The respondent at paragraph 4.8 of its brief of argument restates the misconception conceived by the appellant who alleges an irregularity on the non-signing of the brief of argument. The contention, counsel submits has no foundation and is without any basis.
It is not the case of the appellant, respondent argues, that the brief in question was signed by a firm or that Chief Akin Olujimi, SAN, who the appellant admitted authored the brief , is not a legal practitioner recognized by law; that there is therefore no doubt as to the identity of the legal practitioner behind the process or to whom the process may be traced.
The pertinent question to ask at this juncture and as rightly posed by the appellant is:- Did a Legal practitioner or the learned silk himself sign the contested process?
I seek to state that for all intents and purposes, the central thread that runs through the respondent’s issue 1 is that the counsel has not denied that he did not sign the appellant’s Brief at the lower Court. In fact he did admit that it was unsigned by him and impliedly admitted that it was signed on his behalf by on unidentified proxy. Reference to substantiate can be made to paragraphs 4.5 and 4.8 of the respondent’s brief which are reproduced hereunder:-
Paragraph 4.5
“It will only mean that Chief Akin Olujimi, SAN who authored the brief in question, as admitted by the appellant, did not sign the brief. It has long been settled by the Supreme Court that the failure to sign a process…….”
Paragraph 4.8
“It is observed that the appellant at paragraph 4.05 to 4.07 of its brief has characterized the alleged irregularity of the non-signing of brief in question by Chief Akin Olujimi, SAN who admittedly authored it……..”
The law is trite and well settled that what is admitted needs no proof. See the case of Ehinlawo V. Oke (2008) 16 NWLR (Pt. 1113) 357. Since the Respondent has not denied that he did not sign the Brief but rather admitted that it was unsigned by him, it then becomes unnecessary for the appellant to provide further evidence in order to prove this issue, as wrongly contemplated by the respondent. It follows therefore that all the submissions on behalf of the Respondent, in respect of the need to provide further evidence and also regarding raising of a fresh issue, should in the circumstance be disregarded and discountenanced.
An issue of jurisdiction (like the one at hand) is not a fresh issue and it is settled law that such can be raised at anytime by various means even viva voce for the first time on appeal in this Court. See Anyanwu V. Ogunewe & Ors (2014) LPELR 22184 (SC).

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Hence and as rightly submitted by the learned counsel for the appellant, the submission by the respondent’s counsel at Paragraph 4.5 of their brief of argument, is grossly misconceived, wherein he said that failure to sign a process is only an irregularity that will not vitiate the process except it has occasioned a miscarriage of justice.
It followed that all cases cited by the respondent on this point are therefore irrelevant and inapplicable. They are in fact against the respondent. Further still, the non-signing of the Brief by a legal practitioner in the Court below is an issue of jurisdiction that can be raised at any time.
Thus, all the submissions by the respondent’s counsel and cases cited by him alleging appellant having consented to the unsigned Brief, Waiver of right, no miscarriage of justice, appellant has not suffered any injustice e.t.c are irrelevant because the complaint relates to an issue of jurisdiction. Hence the cases of Famfa Oil Ltd V. A.G. Federation (2003) 18 NWLR (Pt. 852) 453 at 467 SCC (Nig) Ltd V. Elemadu (2005) 7 NWLR (Pt. 923) 28 at 80 and Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497 at 519 are all inapplicable.
It goes without say therefore that what is relevant at this point is not a question of whether or not the appellant has suffered any injustice as wrongly contemplated by the learned counsel for the respondent. The importance of this case is that it is jurisdictional, which the law allows can be raised of any time, even for the first time in this Court.
At Paragraph 4.5(iii) of the respondent’s brief of argument, reference was made to the Court of Appeal case of A.C.B. Plc V. Haston (Nig) Ltd (1997) 8 NWLR (Pt. 515) 110 at 127. The learned counsel subscribes to the view held by the Court that the failure of counsel to sign pleading would not invalidate the process and that the appellate Court would not allow technicality to prevent the flow in the wheel of justice; that the alleged failure to sign the respondent’s brief in the lower Court, even if established does not go to the jurisdiction. In other words that it is not jurisdictional.
I seek to restate at this juncture further that the respondent’s counsel in support of his argument, cites the case of Anyanwoko V. Okoye (2010) 5 NWLR (pt. 1188) 497 at 514.

In that case, the facts disclosed that the suit was commenced at the trial Court by originating summons and there were objections inter alia that it was not commenced in accordance with the prescribed rules of Court since the
claim was contentious and involved substantial disputes, thus originating summon was inappropriate. Hence the Court lacks jurisdiction to hear the case.
This Court, while considering the objection that the suit was not commenced in accordance with the prescribed rules of Court held at pages 513 and 514 of the lead judgment and said:
“With respect to the first issue, the first ground of the objection is that the summons was not signed by the Registrar of the Federal Capital Territory High Court as required by Order 6 Rule 8 of the Rules of that Court and that by reason of the aforesaid non-signing no summons was, in law, issued. Order 6 Rule 8 provided that:
“An originating summons is issued upon its being signed by the Registrar or other officer of the Court duly authorized to sign the summons.”
It is not contested that the originating summons was not signed by the Registrar of the Court as enjoined by Order 6 Rule 8 of the Rules of the Court and therefore a breach of the Rules. What, however, is the legal effect of this breach?
In Clement V. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 50 this Court per Oputa, JSC articulate this principle when he declared:
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“I think it is trite law that Rules of Court are rules of procedure. They do not by themselves and themselves alone confer jurisdiction. They merely regulate the exercise of jurisdiction conferred aliunde.”
“It is untenable therefore for the appellant to contend that the breach of the provisions of Order 6 Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by the statute remains unaffected by breaches of Rules of Court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rule 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the Court and even counsel for the parties.”
It is clear that Order 6 Rule 8 of the Rules of the High Court Federal Capital Territory Abuja was being interpreted in that case. The said Rule dealt with non-signing of the originating summons by the Registrar or other officer of the Court before issuance. And it was upon the breach of this Rule that this Court held that the breach of that Rule does not rob the Court of any jurisdiction. It is settled that cases remain authorities only for what they decided.
See the case of Ugwuanyi V. Nicon Ins. Plc. (2013) 11 NWLR (Pt. 1366) pg 546 at 604.

It is obvious as rightly submitted by the learned counsel for the appellant that the case under reference is inapplicable to the instant case because apart from the fact that it is not a Registrar or officer of the Court that is involved herein, the issue at hand is also not related to a breach of a Rule of Court but a breach of the Legal Practitioners Act, which has been interpreted in several decisions of this Court. As stated in the Appellant’s Brief, a Legal Practitioner must sign all processes filed in Court by himself and an unknown Proxy who is not a Legal Practitioner cannot sign on his behalf.
The pertinent question, which I had asked earlier in the course of this judgment, is, Did a Legal Practitioner or the learned silk himself sign the contested process? The respondent himself has admitted the answer to the question is in the negative. Hence the respondent is therefore approbating and reprobating by supporting this arguments at Paragraph 4.8(ii).
It is well settled principle of law that counsel should not approbate and reprobate. See Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 at 663 wherein this Court per Tobi, JSC made the following Pronouncement thus:
“A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.”
I seek to restate further that as contemplated by the appellant’s counsel, the context within which their amended brief of Paragraph 4.07 was stated relates to the failure to file a Brief. Counsel confers copiously to Order 18 Rule 10 of the Court of Appeal Rules, 2011 which lays down the consequences of the failure in filing a brief of argument, in other words, it will result in dismissal of the appeal.
It follows that the submissions by the Respondent’s counsel on waiver e.t.c. also the reliance on Order 20, Rule 5 have both missed the point and spring from a faulty foundation.
Furthermore and to buttress the point further, it is a matter of law to stress emphatically that the issue of non signing of the appellant’s Brief by a Legal Practitioner is jurisdictional. The law is trite and elementary that an issue of jurisdiction cannot be waived. As stated earlier, it is not an irregularity and can be raised at any time, even for the first time in this Court as held severally.
Consequently, the submission by the Respondent’s counsel at Paragraph a.8(iii) of its brief is discountenanced as misconceived. That is to say the reliance on Order 18 Rule 10 of the Court of Appeal Rules, 2011.
The law is again well settled that on appeal, this Court is empowered by Section 22 of its Act to do what the lower Court should have done. See the case of Agbakoba V. INEC(2008) 18 NWLR (Pt. 1119) 489 wherein it was held that:
“The invocation of the power of this Court under Section 22 of the Supreme Court Act, is to make any orders the Courts below are empowered to make. See Dantata & Anor. V. Mohammed (2000) 5 SC 1: (2000) 7 NWLR, (Pt. 664) 176) at 200″ per Chukwuma-Eneh, JSC.
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The said issue 1 is resolved therefore in favour of the appellant. In other words, the lower Court acted without jurisdiction when it allowed the appeal of the Respondent based on an incompetent Brief of argument.
In the eyes of the law, the Respondent herein abandoned its appeal at the lower Court because it (the appellant at the lower Court) did not have a competent Brief of argument before the Court; the lower Court in the result acted without jurisdiction when it allowed the appeal of the respondent based on an incompetent Brief of argument. The Respondent’s Brief (appellant at the lower Court) was signed by a proxy unknown to law.
Accordingly, this issue is resolved in favour of the appellant herein, and thus determine this appeal in limine without having to consider the other issues raised. As a consequence, I hereby set aside the decision of the Court of appeal for want of jurisdiction having relied upon an incompetent appellant’s brief in arriving at its decision.
As a result and in totality, I therefore allow the appeal on the said 1st issue only. I further set aside the decision of the lower Court and affirm that of the trial Court by invoking Section 22 of the Supreme Court Act.
Appeal is determined on the 1st issue only and is hereby allowed in terms of the order made supra.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Clara Bata Ogunbiyi JSC. I agree with it and for the reasons given I too allow the appeal, set aside the decision of the Court of Appeal and affirm the judgment of the trial Court.
Appeal allowed.
MARY UKAEGO PETER-ODILI, J.S.C.: My learned brother, Clara Bata Ogunbiyi graciously obliged me with the draft of the judgment just delivered which decision I agree completely with. To register my support, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division (Coram: Onalaja, Adamu JJCA and Adekeye (JCA (as she then was) wherein the Court of Appeal or Court below or Lower Court held that the plaintiffs suit was incompetent and was accordingly struck out.
The background facts are set out clearly in the lead judgment and I shall not repeat them herein except for when the need to utilize and refer to any part arise.
On the 14th day of November 2017 date of hearing, learned counsel for the appellant, Tunde Babalola adopted the amended brief of argument filed on 23/6/2016 and deemed filed on 3/10/17 and a reply brief filed on 26/9/17 and deemed filed on 14/11/17. In the brief of argument were identified five issues for determination which are thus:
1. Whether in the eyes of the law and by the incompetent Brief of Argument filed by the respondent at the lower Court, the respondent herein (the appellant at the Court of Appeal) had abandoned its appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio. (Ground 1).
2. Whether the learned justices of the Court below breached the appellant’s right to fair hearing when it failed to determine the issue properly raised and canvassed before it with respect to the incompetence of Ground 1 of the respondent’s Notice of Appeal filed and maintained on 9th February 1996 before the lower Court. (Ground 2).
3. Whether the defendant/respondent raised any competent question of pre-action notice to warrant its consideration by the Court below. (Grounds 3, 4, 5 and 7).
4. Whether Exhibit “T” satisfied the requirement of a valid pre-action notice. (Grounds 4 and 5).
5. Whether the learned justices of the Court below were right in failing to consider the merit of the case before them (sic). (Ground 6).
For the respondent, learned counsel, Olumide Olujinmi Esq., adopted its brief of argument filed on 15/2/2017 and deemed filed on 14/11/17 and raised three issues for determination which are as follows:
1. Whether the appeal before the lower Court was incompetent as to invalidate the judgment of the lower Court in favour of the respondent. (Ground 1).
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2. Whether the lower Court properly considered the issue of the incompetence of this suit raised by the respondent based on the failure of the appellant to serve proper pre-action notice as required by Section 46 (1) of the Obafemi Awolowo University Act. (Ground 2, 3,4,5,7 and 8).
3. Whether in the light of the finding of the lower Court that the purported pre-action notice issued by the appellant was invalid and incompetent thereby rendering the suit based on it incompetent, the failure to consider the merit of the suit has caused the appellant any miscarriage of justice. (Ground 6).

The issue 1 of the appellant which the respondent in effect adopted is sufficient to determine this appeal and so I shall use it.
ISSUE 1:
Whether in the eyes of the law and by the incompetent brief of argument filed by the respondent at the lower Court, the respondent herein (the appellant at the Court of Appeal) had abandoned the appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio.
Learned counsel for the appellant submitted that indeed an unknown person penned the signature for Chief Akin Olujinmi SAN which means it was that of an unknown proxy in the brief of argument at the Court below which the law does not recognise thereby rendering the process incompetent. He cited S.P,D,C.N. Ltd v Ekosi (2016) 2 NWLR (Pt.1496),278 at 287.

The ensuing implication being that the respondent herein who was appellant in the lower Court had abandoned its appeal and the consequence should be a dismissal of the appeal. He cited Macfoy v UAC (1962) AC 152 at 160; Order 18, Rule 10 of the Court of Appeal Rules; Governor of Zamfara State v Gyalange (2013) All FWLR (Pt.658) 821 at 836.

Learned counsel urges this Court to resolve the issue in favour of the appellant herein and determine this appeal by setting aside the decision of the Court of Appeal and affirm the decision of the trial Court by invoking Section 22 of the Supreme Court Act.
In response, learned counsel for the respondent stated that the failure to sign the brief of argument was only an irregularity that would not vitiate the process unless it is shown that it occasioned a miscarriage of justice and jurisdiction not lost. He referred to Famfa Oil Ltd v A. G. Federation (2003) 18 NWLR (Pt.852) 453 at 467; S. C. C. (Nig.) Ltd v Elemadu (2005) 7 NWLR (Pt. 923) 28 at 80; Anyanwoko v Okoye (2010) 5 NWLR (Pt.1188) 497 at 519.
That the appellant lost the right to complain since it did not act to have that irregular process normalised and so cannot do so now.
The stance of the appellant is that the respondent as appellant in the Court of Appeal had not had its brief of argument properly signed as it was thus. “F: Chief Akin Olujinmi SAN” and so the appeal ought to have been dismissed. The respondent’s counter re-action is that appellant had not raised that issue at that lower Court and cannot now bring it for a visitation. Indeed it is now trite and well settled that an appellant will not be allowed to raise in the appellate Court an issue not raised in the Court below as it would be like changing the goal post at will which would have the effect of jeopardizing the interest of the other party which would lead to a miscarriage of justice as the ends of justice are not one sided but for both parties and the Court. See Ejiofodomi v Okonkwo (1982) 11 SC 30 at 46 – 47; Waniko v Ade – John (1999) 8 NWLR (Pt. 619) 401 at 412; Kano Textile Plc v G & H (Nig.) Ltd (2002) 2 NWLR (Pt.751) 420 at 449; Dweye & 2 Ors v Iyomahan & 3 Ors (19832) 8 SC 59 at 66.
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For emphasis, failure to have that brief of argument of the appellant in the Court below signed properly is an irregularity which will not vitiate the process except it is shown that the impropriety had occasioned a miscarriage of justice. In such a situation there was need for the prompt reaction from the now appellant that would have led to the regularization and this not having been done at that level, and the Court below going ahead to consider the merit of the appeal before it and delivering judgment, bringing up the issue now at this stage is asking more than this Court can grant since in effect the appellant is taken to have consented to the use of that irregular process. See Famfa Oil Ltd v A. G. Federation (2003) 18 NWLR (Pt.852) 453 a6 467; S. C.C. (Nig) Ltd v Elemadu (2005) 7 NWLR (Pt.923) 28 at 80.
This Court has succinctly stated the position in the case of Anyanwoko v Okoye (2010) 5 NWLR (Pt. 1188) 497 at 519.
“For where a party is aware of non-compliance or where a writ is defective it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings. When the appellant noticed the surmised irregularity, he should have taken the necessary step to avoid being roped by what is often referred to as waiver which is defined in Black’s Law Dictionary, 5th Edition, as the unconditional or voluntary relinquishment of a known right; the renunciation, repudiation, abandonment or to surrender of some claim, privilege or the opportunity to take advantage of some defect, irregularity or wrong….. Perhaps, I should further say it that irregularity can certainly be waived.
If the beneficiary fails to raise objection timely he will be deemed to have waived his right….. In short, as the appellant failed to act instantly on the surmised irregularity pinpointed by her, she is deemed to have waived her right. She should not approbate and reprobate at the same time.”
The Supreme Court further held at pages 514 thus:
“It is untenable therefore for the appellant to contend that the breach if the provisions of Order 6, Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by Statute remains unaffected by breaches of Rules of Court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6, Rule 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the Court and even counsel for the parties.”
The background fact at the base of this appeal is the objection founded on Section 46 (1) of the Obafemi Awolowo University Act which stipulates thus:
“No suit shall be commenced against the university until at least three months after written notice of intention to commence the same shall have been served on the university by the intending plaintiff or his agent; and such notice shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.”
In its ruling on the objection founded on Section 46 (1) of the Act, the trial Court at page 18 to 24, overruled the objection and held that the action was competent and properly brought under Section 46 (1) of the Obafemi Awolowo University Act.
The trial Court at page 22 lines 22 of the Record held as follows:
“As between the parties, there is no argument that Exhibit ‘A’ does not contain all that is required by law to constitute it a notice stipulated in Section 46 (1) of Obafemi Awolowo University (Transitional Provisions) Act to be given before an action is instituted.”
The Court of Appeal in considering the appeal held thus:
“After a cool calm view and consideration of the strict compliance of the pre-action notice set out in Section 46 (1) supra, I come to the irresistible conclusion as decided in; NNPC v CHIEF GANI FAWEHINMI & 4 ORS. supra that Exhibit T being letter of 3rd March 1992 did not pass the acid test of the provisions of Section 46 ( aforesaid). I therefore declare that the action commenced against appellant was incompetent, applying MADUKOLU v NKEMDILIM supra the Court lacked jurisdiction to adjudicate in this action.”
The Court of Appeal in reaching its decision had relied on a few of the judicial authorities which while recognising the impacting effect of an incompetent process had cautioned on the need for the party who would adversely be affected to act promptly in bringing up the issue so that the Court would deal with it promptly but if that party fails to do so and no miscarriage of justice in sight in the utilisation of that irregular process then the substance of the decision would not be jeopardized and it would stand. It becomes too late to bring it up, See the case of Mobil Producing (Nig.) Unlimited v LASEPA (2002) 18 NWLR (Pt.798) 1 at 30 where the Supreme Court stated as follows:
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“There is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit.”
The Court of Appeal should not have ended the matter before them as they did without entering into the merit, the irregularity in the process being one that could be rectified. Therefore, there is merit in this appeal which I also allow.
I abide by the consequential orders made in the lead judgment.
AMIRU SANUSI, J.S.C.: I had a preview of the Judgment prepared by my learned brother Ogunbiyi JSC, just delivered, I am at one with her reasoning and the conclusion arrived at that this appeal has merit and should be allowed. While allowing the appeal, I intend to make few comments on it, just for purpose if emphasis.
His lordship has ably summarised the facts of this appeal and the submission of learned counsel to the parties in the appeal and therefore it will be superfluous to repeat them here. In this discourse, I will restrict my comments to ISSUE No.1 raised in the appellant’s brief of argument which has to some extent, been captured in ISSUES No1 and 2 in the Respondent’s brief of argument. This is because the said Issue 7 formulated by the appellant, raised issue of jurisdiction of the lower Court to even entertain and determine the appeal in the absence of a valid or competent brief of argument filed by the present respondent who was the appellant in that Court below.
As Jurisdiction is regarded as the life wire or spinal cord of any appeal. I shall restrict my self to the competence of the appeal before the Court below when the appellant’s brief was confirmed not to have actually been signed by a legal practitioner. It is common ground among the parties’ learned counsel, that an unknown person penned the signature for Chief Akin Olujinmi SAN or to put it in another way, an unknown proxy purportedly signed the brief of argument filed at the Court below.
On this apparent anomaly, the appellant’s counsel advanced the argument that the said Brief filed before the lower Court was incompetent. He cited SPDCN Ltd vs Ekosi (2016) 2 NWLR (pt 1496) 278. Conversely, the respondent’s learned counsel held a different stance. He argued that the failure to sign the Brief of argument was mere irregularity which does not vitiate the process, since it was not shown that miscarriage of Justice was occasioned. He referred to the cases FAMFA OIL LTD vs A. G of the Federation (2003) 18 NWLR (Pt 852) 453 at 467. SCC (Nig) Ltd vs Elemada (2005)7 NWLR (pt 923) 28 at 80; Anyanwoko vs Okoye (2010) 5 NWLR (pt 1188) 497 at 579.
It seems to me that the issue at hand relates to non-signing of a process by a Legal practitioner which is purely a Jurisdictional issue, because no appeal can properly be placed an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court which can be regarded as mere irregularity. I do not share that view of his. It is beyond violation of rules of Court. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named
legal practitioner as opposed to an unknown proxy who is obviously not a Legal practitioner known to law. In the case at hand, it has been confirmed, that neither any known legal practitioner nor Chief Olujinmi SAN, the learned silk who purportedly authored the brief of argument in question on behalf of the appellant at the Court below, (now respondent herein) had signed the Brief. The respondent herein, did not hold a contrary view in that regard either in his various contentions.
In that regard, I am inclined to agree with the appellant’s contention that the respondent’s brief (filed at the lower Court on behalf of the Appellant thereat) is invalid and incompetent. The non-signing of that Brief of argument of the appellant thereat, had therefore vitiated the Jurisdiction of the Court below to rely and act on it and determine the appeal before it, because in actual fact, there was no brief of the appellant and as such, no competent Brief of argument for it to rely on, hear and determine the appeal since its Jurisdiction is eroded for non-availability of a competent brief of argument filed by an appellant before it.
In the result, for these few comments and for the more detailed and fuller reasoning marshelled in the lead Judgment of my learned brother Clara Ogunbiyi JSC, which I entirely agree with and endorse, I also adjudge this appeal meritorious. It succeeds and is accordingly allowed by me. Appeal allowed
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Clara Bata Ogunbiyi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is meritorious and it is hereby allowed. I abide by all the orders contained in the lead Judgment.

An order for the sum of N250, 000, 000. 00 (Two Hundred and Fifty Million) against the first defendant which monies are not being contested by the first defendant but in possession of the second and third defendants; as monies (sic) due and shall fall due to the first defendant from the second and third defendants as facilitator and chairman of the second and third defendants’ companies; being monies/amount/sum owed the plaintiffs by the first defendant for items supplied by the second plaintiff to the first defendant and was fully paid for and satisfied (sic) by the first plaintiff to the second plaintiff on behalf of the first defendant – the facilitator and chairman of the second and third defendants between the period of 1998 to 1999, on running supply contracts within the jurisdiction of this Court; which the first defendant has refused and/or failed to make good till date to the first plaintiff
[Page 11 of the record, Italics supplied for emphasis] From the tenor of the italicised subordinate clause in the above relief, it is not in doubt that the claim was anchored on an alleged contract entered into between the appellant and the third and fourth respondents: a?contract from which the sum due, namely, N250, 000, 000.00 (Two Hundred and Fifty Million Naira), eventuated. Put differently, the third and fourth respondents [as plaintiffs] sued on the contract which they entered into with the appellant. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.
That notwithstanding, the originating processes were not served on them [that is, the first and second Respondents]. Rather, the bailiff dropped copies of an alien process in the appellant’s office at Sapele.
Curiously, he [for himself and on behalf of the first and second respondents] engaged the services of one A. K. Osawota who, at the hearing of the matter at the High Court on February 3, 2000, purportedly represented not only the appellant but also the first and second respondents. In what evidently smacked of unprofessional conduct, he did not oppose the application of the plaintiffs’ counsel for judgment. The trial Court, accordingly entered judgment against the appellant and the first and second respondents.
Upon becoming aware of the judgment, the first respondent beseeched the trial Court with an application
for stay of execution of the judgment and for an order to set it aside. The Trinitarian Grounds of the application, which should have called for considerable circumspection on the part of the trial Court, were as irreproachable as they were formidable:
(i) The second respondent is not a juristic person capable of suing or being sued in a Court of law;
(ii) The Originating Summons in this action was not served on the first respondent as prescribed by law;
(iii) There was a breach of fair hearing as the first respondent was neither heard nor given an opportunity to be heard before the Order of Court dated 3rd February, 2000 was made against it.
[Italics supplied for emphasis] The trial Court, even in the face of these weighty grounds that raised formidable constitutional questions, chose to dismiss the application, whereupon the applicants approached the Court of Appeal, Benin Division [hereinafter, simply referred to as “the lower Court”] with their complaints. The judgment of the lower Court, which favoured the applicants, prompted the appellant’s appeal to this Court. He framed four issues for the determination of his appeal, viz:
1. Whether the findings/consideration of facts in the supplementary records by the lower Court after admitting that the records are not in the file, has not occasioned miscarriage of justice, particularly, in the
light of the dismissal of the preliminary objection?
2. Whether the lower Court was right when it held that the first and second respondents were not served the

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originating summons taking into consideration the whole circumstances of this case?
3. Whether the learned Justice (sic) of the Court of Appeal were right when they held that the third and fourth respondents did not disclose any cause of action against the first and second respondents?
4. Whether the learned Justices of the Court of Appeal were right by setting aside the judgment and ruling
of the trial Court dated 3/21/000 and 29/5/2000, respectively?
Unarguably, against the background of the complaint of the first and second respondents, encompassed in the Grounds of the application to set aside the trial Court’s judgment, only the second issue would suffice in the determination of this appeal namely,
Whether the lower Court was right when it held that the first and second respondents were not served with
the Originating Summons, taking into consideration the whole circumstances of the case?
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S ARGUMENT
When this appeal was heard on February 29, 2016, counsel for the appellant, A. K. Osawota, adopted the Amended Appellant’s brief filed on February 10, 2016. On this issue, he contended that, upon filing of the originating summons, it was served on the first and second respondents through the appellant who is the alter ego and Chairman of the first and second respondents, citing page 16 of the record.
He pointed out that the address for service indicated in the originating summons for the first and second respondents, including the appellant, was Enerhen Road, Enerhen-Effurun, Delta State, within the jurisdiction of the trial Court. He noted that the first and second respondents were served through the appellant at Sapele, which is within jurisdiction of the High Court of Justice, Delta State.
In his view, the trial Court was right when it held that “from the address endorsed on the Originating Summons, it is clearly stated that all the defendants are living in Warri within the jurisdiction of this Honourable Court.”
He maintained that the first and second respondents admitted the fact that the appellant was their Chairman, citing page 32, paragraph 10 of the record. He submitted that the service of the originating summons on the first and second respondents, through the appellant, was valid and proper, citing Section 78 of the Companies and Allied Matters Acts Cap 59 LFN 1990 and Order 12 Rules 8 of the High Court Civil Procedures Rules of Bendel State (as applicable to Delta State).
He noted that the parties are ad idem on the fact that the appellant is the facilitator, financier and Chairman of the first and second respondents and consequently a principal officer in the said companies.
He submitted that service of the originating summons on the first and second respondents through the appellant, whether inside or outside their premises is proper service, Kisari Investments Ltd v Laterminal Company Ltd [2001] FWLR (pt. 66) 766, 770. According to him, this must be the position because Order 12 Rule 8 of the High Court Rules does not expressly provide that the Director, Secretary or Principal Officer of the company must be served within the companys premises, or at its office.
He pointed out that the first and second respondents have the onus of proving that there is a contrary mode of service adopted by them with respect to service of the Court processes. He submitted that, in the absence of such proof, reliance on Order 12 Rule 8 is proper and such service is deemed to be personal service on the first and second respondents. He inveighed against the lower Court’s judgment.
He further submitted that the appellant, having accepted service for and on behalf of the first and second respondents, whatever subsequent act he did in respect of the suit was their act and binding on them, Section 66 (1), CAMA ; Odutola v Ladejobi [2006] 5 SCN) 63, 86.

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He contended that the first and second respondents, having entered appearance through counsel to wit, Chief A.K. Osawota, had waived whatever irregularity inherent in the service of the processes. In his submission, where a defendant entered appearance on the strength of an irregular service of an otherwise valid originating summons, it constituted not only a waiver of the irregularity but also a submission to the jurisdiction of the Court,
Kisari Investments Ltd v Laterminal Conpany Ltd (supra) 1771.
He pointed out that the appellant, being a major shareholder in the first and second respondents, and their principal officer, was the alter ego of the Company, the service on him is deemed proper service on the 1st and 2nd Respondents. More so, upon appearance of A.K. Osawota for them, there was in law a presumption of having been briefed by the parties whom he entered appearance for. He cited Haston Nig Ltd v A. C. B. Plc [2002] as authority on the importance of the position of the Chairman of a Company as regards the affairs of the Company.
He pointed out that it was in pursuance of the appellant’s duty to timeously protect the interest of the?first and second respondents that he duly briefed A.K. Osawota, Esq. to appear for them. By doing this, he [appellant] had complied with the provisions of the law.
In his view, whether the appellant exercised his power and discretion wrongly cannot constitute a ground to appeal and/or set aside the trial Court’s decision. He further, submitted that service on a director or principal officer of a company whose interest was in conflict with that of a company was proper service because mere sentiments and domestic policies of a company cannot waive statutory provisions, thus National Electoral Commission v Izuogu and Ors [1993] 2 NWLR (Pt 275) (sic) was inapplicable to this appeal.
He urged the Court to discountenance National Electoral Commission v Izuogu and Ors (supra) as being irrelevant and inapplicable to this matter.
He submitted that the non production of three proofs of service indicating the number of defendants sued and served, or whether it was a writ of summons (not originating summons) that was served on the first and second respondents was not fatal but a mere irregularity which did not affect the substance of this matter, Order 2 Rule 1, High Court Civil Procedure Rules of Defunct Bendel State applicable to Delta State.
He pointed out that the purported irregularity was waived by the appearance of A.K. Osawota, Esq. for the appellants without protest and even the first and second respondents never complained that it was a writ of summons but not originating summons that was served on them. He pointed out that it was on record that all the parties to the suit knew the processes that were issued and none of them was misled by the endorsement on the proof of service.
He observed that, the first and second respondents, having entered appearance through counsel and participated in the hearing of the summons, cannot resort to legal technicalities and engage each other in a whirling of technicalities, technicalities having for long been committed to mother earth by the need to do substantial justice, Adewunmi v. A. G. Ekiti State [2002] FWLR (pt 92) 1835.
Counsel further contended that two or more proofs of service on the defendants were unnecessary in this case. In his view, since the appellants acted on their behalf in accepting service, the production of one proof of service was sufficient. He pointed out that this was indicated on the proof of summons which was served on defendants, through the first defendant. According to him, the argument that there must be equal number of proofs of service commensurate with the number of defendants was stretching the law too far and was not all embracing and admits of exception, and this matter was clearly one of them.
He contended that, in view of his position as Chairman of the first and second respondents, he was sufficiently clothed with legal and equitable authority to act for and on their behalf.
He canvassed the view that the principle of audi alterem partem was not a massive shield to circumvent the due process of the law or shielding a litigant from the consequences of litigation at his whims and caprices. In his view, a litigant must show that he was deliberately by-passed and excluded from proceedings before he can succeed in invoking the principle, Mohammed v Kpelai [2001] FWLR (pt 69) 1404, 1407. He pointed out that the first and second respondents never contested the appellant’s power to appoint counsel for them.
He maintained they did not establish by way of evidence that they were denied fair hearing and the second respondent, having denied its own existence, cannot make a sommersault and argue that it was not?afforded fair hearing because a

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purported non existing person cannot hear nor speak, page 26; pages 2, 5 and 6 of the record, Kunle Edu, for the third and fourth respondents, did not file any brief of argument,
FIRST AND SECOND RESPONDENTS’ CONTENTION
On his part, counsel for the first and second respondents, Olumide Aju, adopted the Brief of Argument filed on February 2, 2016. In the said brief, he submitted that the lower Court was right when it held that the first and second respondents were not served with the Originating Process, and therefore all the proceedings against them at the trial Court were vitiated on account of lack of fair hearing.
He advanced the following reasons. In the first place, the first respondent herein is a limited liability company. He cited Section 78 of the Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria 1990, which governs service of processes on companies. He equally, drew attention to Order 12 of the High Court of Bendel State (Civil Procedure) Rules 1988, applicable in Delta State, citing Bello v NBN [1992] 6 NWLR (pt 246) (sic).
He pointed out that the pertinent question for consideration in this issue is whether a company can be served through any of his directors. He posed the question: whether it would be proper service where a director and his company were sued as defendants in an action, and the relief sought as stated in the Originating Summons indicated a conflict of interest between that company and the director if the company is served through that director. He referred to the principal relief sought as stated in the Originating Summons (supra).
He observed that the above relief, clearly, showed that the intention of the Plaintiff, at the trial Court, was to sue only the appellant in order to recover the money he owed to the third and fourth respondents. He explained that the appellant was sued in respect of a contract he entered into in his private capacity and for his own intents and purposes. The first and second respondents were joined in the suit at the High Court, presumably, because the Appellant had told the third and fourth respondents that he had some money due from the first and second respondent’s companies wherein he is a director. In his view, this clearly showed that there was a conflict of interest between the appellant and them.
He wondered if, in the above circumstance, whether it was proper service to serve the appellant with the Originating Summones meant for the first and second respondents. He noted that the fact that the Summonses were served on the appellant in his personal office at Sapele was strong evidence that he was the main appellant to the Suit at the trial Court. That he made no effort to send the Summonses to the registered office of the 1st Respondent in Port Harcourt was further evidence of the conflict of interest.
He submitted, on behalf of the first and second respondents, that, in such circumstance as the above, it
would not be proper service on the company to serve the summons on the director, because he had an interest in the subject matter of the suit which was in conflict with the interest of the company. According to him, under the circumstance, service on the director should not qualify as service on the company since both of them were defendants in the action, NEC v Izuogu and Ors [1993] 2 NWLR (pt 275) 286.
He contended that where service of an originating process was in issue, the Court had to be satisfied that there was service by asking for proof of service, citing Order 12 Rule 28 of the High Court of Bendel State Civil Procedure Rules, 1988.
He maintained that where more than one defendant is sued, there must be proof of service on each defendant in such capacity, except there is an order of Court to the contrary. This, in his view, is because the object of all types of service of process is to give notice to the party on whom service is to be effected so that he might be aware of and able to resist, if he may, that which is sought against him, United Nigena Press v Adebanjo (1969) 1 All NLR 422, 423.
RESOLUTION OF THE RADICAL SOLE ISSUE OF NON-SERVICE
As indicated at the outset of this judgment, when the first and second respondents were apprised of the judgment against them, they repaired to the trial Court with an entreaty to it to set aside its judgment obtained when the originating process was not served on them. In effect, they interrogated that Court’s jurisdiction and impugned its competence to enter judgment as it did against them, Craig v Kanssen (1943) KB 256, 262; Mbadinuju v. Ezuka [1994] 8 NWLR (pt. 364) 5.

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In the main, their complaint was woven around the question of non-service of the Originating Summons.
They, thus raised a fundamental issue which went to the jurisdiction and competence of the Court to enter the judgment, as it did. They set out the Grounds for their application: grounds which, inter alia, complained that:
(iv) The Originating Summons in this action was not served on the first respondent as prescribed by law;
(v) There was a breach of fair hearing as the first respondent was neither heard nor given an opportunity to be heard before the Order of Court dated 3rd February, 2000 was made against it.
[Italics supplied for emphasis] On the first question, the lower Court found as follows “[i]n an affidavit of service dated 28/2/2000, a bailiff of the lower Court [that is, the trial Court] swore that on 19th January, 2000 at 2 O’clock, he served ‘upon the defendant at Sapele three copies of Writ of Summons and hearing notice… by delivering the same personally to the defendant at his office at Sapele;
[page 132, italics supplied for emphasis].
At page 145 of the record, the lower Court, further found as follows:
Though there were three defendants, the third respondent and the two appellants, the affidavit of service shows that the process was served on the defendant; It was stated in the affidavit that the three copies of Writ of Summons and Hearing Notice were served on the defendant at his office at Sapele. Granted that the third respondent was described as the facilitator of Expo Nig Ltd, he was sued in his personal capacity and though sued together with the appellant, his interest in the suit is adverse to that of the appellants. In any case, if it can be said that service on the defendant at his Sapele office means service on the three defendants, including the appellants…, what were served were a Writ of Summons and hearing notice, not an Originating Summons, which was dealt with by the Court below. It is my considered view that, going in (sic) affidavit of service, the appellants were not served directly or indirectly even the Originating Summon. A Wit of Summons and a Hearing Notice cannot be the same they (sic) as Originating Summons.
[Italics supplied for emphasis] Not done yet, the Lower Court made these crucial and damning findings:
In view of the adverse interests of the third respondent behind their back, a reasonable person watching the proceedings and being aware that what the bailiff sworn (sic) he served on the ‘defendant’ at his office were three copies of a Writ of Summons and hearing notice, not the Originating Summons taken by the Court, that the appellants were not served either the Originating or the Writ of Summons, that counsel who was foisted on the appellants behind their back by the third respondent who has interest adverse to the appellants’ interests in the matter merely addressed the Court on behalf of the third respondent and said nothing about the appellants, nor did the Court hear from them since counsel who purported to appear for them failed to speak on their behalf, will definitely leave the Court worried and disappointed that justice had not been done to the appellants. The originating process, be it Originating Summons or Writ of Summons, ought to have been served on the appellants. It cannot be said that the appellants were given a fair hearing because the decision against then was based on the Originating Summons which was not served on them or through the third respondent on whom the Writ of Summons and Hearing Notice were served. Furthermore, counsel brief for them, without their knowledge and consent, did not represent them,,.
[page 146, italics supplied for emphasis] My Lords, pray, permit me to adopt the apposite observation of the erudite Abiru JCA who in Salihu v Gana and Ors (2014) LPELR-23069 (CA) 34-36, stated that “lawyers who misuse their knowledge of the law and legal procedure to stultify the process of administration of justice are a disappointment and constitute a clog to the progress of the legal profession.”
Such is the nature of this appeal which is nothing but an attempt “to stultify the process of administration of justice” by counsel who is “a pitiable mockery of what a great Lawyer really is,” per Pats-Acholonu JCA (as he then was) in Williams v Akintunde (1995) 3 NWLR (Pt 381) 101, 115.
It cannot be otherwise. Even the face of these impeccable far-reaching findings and unimpeachable conclusion, counsel for the appellant, most incautiously, proceeded to irritate the administration of justice with his appeal: an appeal which, due to its frivolous nature constitutes “a vice rather than a virtue in the administration of justice,” Ogboru and Anor v Uduaghan and Ors (2014) LPELR -23080 (SC).

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As shown above, the third and fourth respondents in this appeal (as plaintiffs) commenced an action against the appellant (as first defendant) through an Originating Summons at the High Court of Delta State, Isiokolo Judicial Division. The claim, as already shown above, was anchored on an alleged contract which they entered into with the appellant; a contract from which the sum due, namely, N250, 000,000.00 (Two Hundred and Fifty Million Naira), eventuated. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.
That notwithstanding, they were made defendants to the action. Instead of serving them with the Originating Summons, the bailiff, by his own deposition in the affidavit of service, served the appellant with entirely alien processes, namely, “Writ of Summons and hearing notice, not an Originating Summons, which was dealt with by the Court below,” [page 145 of the record].
This unchallenged finding by the lower Court, effectively, negates the disingenuous submissions of the appellant’s counsel that the “originating Summons… were served on the first and second respondents,” [page 7 of the appellants brief]. As the lower Court, rightly held, “a Writ of Summons and a Hearing Notice cannot be the same they (sic) as Originating Summons,” [page 145 of the record].
Even on this score alone, the first and second respondents were relieved of the burden of proving non-service since the bailiff’s ipse dixit settled the conundrum in their favour that they were not served with the Originating Summons. After all, it is settled that an affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit, Schroder and Co v Major and Company (Nig.) Ltd [1989] 2 SC (pt. II) 138; 2 NWLR (Pt. 101) 1, 11.
I must pause here to emphasise the point that, where as in the instant case, the service evidenced in the affidavit of service was disputed by the respondents, the trial Court had a duty to satisfy itself that the actual originating process it dealt with, that is, the Originating Summons had, in fact, been served.
Regrettably, the trial Court, woefully, failed to do so.
Thankfully, the Lower Court, rightly, out-distanced the trial Court in this regard. After its painstaking scrutiny of the processes, it found that the bailiff effected service of an alien process, namely, “Writ of Summons and hearing notice, [and] not [the] Originating Summons, which was dealt with by the Court below,” [page 145 of the record, italics supplied]. Its approach is in tandem with settled authorities, Umaru Launi v. Ezeadua [1983] 6 SC 370; Okesuji v. Lawal [1991] l NWLR (pt. 170) 661, 673.
In effect, the conclusion of the lower Court is irreproachable. It has been settled that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case, Craig v. Kanssen (1943) KB 256 at 262.
On this premise, I find no justification for interfering with the lower Court’s conclusion for it is the service of the process of the Court on the defendant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. Put differently, due service of the process of the Court is a condition precedent to the hearing of the suit. Where, as in this case, as the first and second respondents were not served with the originating process, that is, the Originating Summons, they were entitled ex debita justitiae to have the trial Court’s judgment set aside as a nullity, Mbadinuju v. Ezuka [l994] 8 NWLR (pt. 364) 5.
It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. Since there was no service on them, the fundamental rule of natural justice audi alteram partem was breached when the trial Court proceeded to enter judgment against them, Mbadinuju v. Ezuka [l994] 8 NWLR (pt.364) 5; Mark and Anor v Eke (2004) LPELR -1841 (SC) 25 -26.
Accordingly, the trial Court’s judgment against the first and second respondents, without service, was a judgment given without jurisdiction and is therefore null and void, Odutola v. Inspector

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Kayode [l994] 2 NWLR (pt.324) 1, 15. That failure to serve the said originating process, the Originating Summons, was not merely an irregularity. It was a fundamental defect which rendered the proceedings a nullity, Obimonure v. Erinosho [1966] 1 All NLR 250, 252; Scot-Enuakpor v. Ukavbe [975] 12 SC 41, 47; [1975] 12 SC (Reprint) 31; Odita v. Okwudinma(1969) 1 All NLR 228; Skenconsult (Niq.) Ltd. v. Ukey [1981] 1 SC 6, 26; [1981] 1 SC (Reprint) 4.
That must be so for failure to serve a process, where service of a process is required, renders any order made against the party who should have been served with the process null and void, Craig v. Kanseen (1943) 1 All ER 108, 113; Madukolu and Ors. v. Nkemdilim [1962] 2 SCNLR 341, S.G.B. (Nig.) Ltd. v. Aina [1999] 9 NWLR (pt. 619) 414; U.B.A. Plc. v. Ajileye [1999] 13 NWLR (pt. 633) 116, 12, Oke v. Aiyedun [1986] 2 NWLR (pt. 23) 548, 99l; Okoye and Okoye v CPMB Ltd (2008) LPELR 1
My Lords, before concluding this judgment, permit me to make one final observation. It would seem obvious that the appellant’s counsel read the lower Court’s judgment very perfunctorily, if not with unproductive superficiality. That explains why the import of the said Court’s sublime findings was lost on him. At the risk of wearisome repetition, I am constrained to set out the lower Court’s trenchant finding that the bailiff effected service of an alien process namely, “Writ of Summons and hearing notice, [and] not [the] Originating Summons, which was dealt with by the Court below,” [page 145 of the record, italics supplied].
That notwithstanding, counsel opted to expend his energy on the applicability of Section 78 of the Companies and Allied Matters Act (supra) on service of processes on limited liability companies. With profound respect, I find against the background of the above finding of the lower Court, that his entire submissions on CAMAare at best, hypothetical; or, at worst, otiose!
In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago v Erichie (1893) Ac 518, 522; Timitimi v Amabebe14 WACA 374; Mustapha v Governor of Lagos State [l987] 2 NWLR (pt 58) 539; Utih v Onoyivwe [199l] 1 NWLR (pt 166) 206.
Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is, simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 7 SCM 165; [2009] 12 NWLR (pt 1156) 435.That is the fate of the Ruling of the trial Court [Akoro, J] as, rightly, found by the lower Court.
I find no merit in this wantonly, frivolous and utterly, vexatious appeal. I hereby enter an order dismissing it with costs assessed and fixed at N500, 000 (Five Hundred Thousand Naira) only to be paid, personally, by the appellant’s counsel. I hereby affirm the judgment of the lower Court delivered on March 3, 2005. Appeal dismissed
WALTER SAMUEL NKANU ONNOGHEN, J.S.C. : I have had the benefit of reading in draft the lead Judgment of my learned brother NWEZE JSC just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
My learned brother has exhaustively dealt with the relevant issues raised in the appeal particularly the fundamental issues of service of originating processes thereby leaving me with nothing useful to comment on.
I therefore dismiss the appeal and affirm the Judgment of the lower Court delivered on the 23rd day of February, 2005. Appeal dismissed.
CLARA BATA OGUNBIYI, J.S.C. : I read in draft the lead judgment of my learned brother Nweze,

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JSC. I agree that the appeal is devoid of any merit and should be dismissed.
This is an appeal against the judgment of the Court of Appeal (Benin Division) delivered on 23rd February, 2005. In that judgment, the lower Court set aside an earlier judgment of the trial Court made in favour of 3rd and 4th respondents herein in a suit instituted by them against the appellant and the 1st and 2nd respondents herein who were the defendants at the trial Court.
The process in question which was claimed not served on the 1st and 2nd respondents as defendants, was an originating summons taken out by the 3rd and 4th respondents as plaintiffs. The 1st defendant (appellant herein) was however served. Intriguingly, the process (originating summons) meant to be served on the 1st and 2nd respondents was exchanged however for writ of summons and hearing notice and served again on the appellant.
Evidence of proof of Service is conclusive where a bailiff deposes to an affidavit to that effect. The proof is by material fact to be placed before a Court. The absence of an effective and proper service negates the entire proceedings by a Court no matter how well conducted. The law is trite and well settled that when a question of service is in issue, it automatically touches on the jurisdiction of a Court which must be satisfied on the proof thereof.
In the case at hand, there was no proof of service on the 1st and 2nd respondents either personally or through any of its directors. In fact, since there were three defendants named on the originating summons, prudence demands that there should have been three different affidavits of service in the Court’s file in proof of service of the process.
Order 12 Rule 28 of the High Court of Bendel State Civil Procedure Rules, 1988 provides as follows:-
“In all cases where service of any writ or document shall have been effected by a bailiff or other officer of Court, an affidavit of service sworn to by such bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.”
See also the cases of Public Finance Securities Ltd V. Jefia (1998) 3 NWLR (Pt 543) 602 at 612 and United Nigeria Press V. Adebanjo (1969) 1 All NLR 422 at 423.
Absence of effective service is a fundamental omission being a condition precedent to the exercise of jurisdiction of a Court. See Madukolu V. Nkemdilim (1962) 1 All NLR 587 at 595. Consequently, as rightly submitted by the 1st and 2nd respondents’ counsel, the service of the originating summons, (meant for the 1st and 2nd respondents), on the appellant was not proper in law. The lower Court could not therefore be faulted in its finding. Absence of service denotes lack of fair hearing and results in miscarriage of justice. The trial Court lacked jurisdiction to have entertained the matter and the lower Court was in order when it vitiated the entire proceedings against the appellant now before us.
My learned brother Nweze, JSC has resolved all the issues raised in this appeal. With the few words of mine and more particularly on the comprehensive reason and conclusion arrived at in the lead judgment, I also affirm the judgment of the lower Court and dismiss this appeal as lacking in merit. I further abide by the order made as to costs which is to be paid by the appellants counsel personally.
KUMAI BAYANG AKA’AHS, J.S.C. : I had a preview of the judgment of my learned brother, Nweze, JSC. I agree with his reasoning and conclusion that the jurisdiction of the trial Court was not properly invoked since the 1st and 2nd respondents were not properly served with the originating processes. The corporate veil of the 1st and 2nd respondents has not been pierced to enable the trial Court ascertain the position of the appellant as the alter ego of the 1st and 2nd respondents. Consequently, it cannot be said that the appellant’s interest is co-terminous with that of 1st and 2nd respondents. Their legal personalities and interests are still intact and remain divergent. The service of processes meant for 1st and 2nd respondents could therefore not be effected on the appellant. In the result, the judgment entered by the trial Court based on service of the originating processes on the appellant on behalf of 1st and 2nd respondents was entered without jurisdiction and liable to be set aside. What the Court below did was right. There is no merit in the appeal and it is hereby dismissed.
I abide by the award of cost made against the appellant which is to be paid personally by learned counsel because his conduct in the handling of the case smacks of unethical behaviour.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. : I have had a preview of the judgment of my learned brother, NWEZE, JSC just delivered. His Lordship has exhaustively considered and ably resolved the only issue that calls for determination in this appeal. I agree with his reasoning and conclusion that this appeal is not only lacking in merit, it is also frivolous and vexatious.
Service on the appellant, who was sued in his personal capacity of originating processes meant for the 1st and 2nd respondents in the circumstances of this case, particularly where it is evident that there is a conflict of interest between the appellant and the said respondent is a fundamental defect that goes to the very root of the trial Court’s jurisdiction to entertain the action. The reason is not farfetched.
Failure to serve a process where service is required amounts to a breach of the affected party’s right to fair hearing. It is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. It is a breach of one of the twin pillars of natural justice “audi alteram partem (let the other side be heard). See Kida Vs Ogunmola (2006) 13 NWLR (Pt. 997) 377; Scott-Emuakpor Vs Ukavbe (1975) 12 SC 41; Eimskip Ltd Vs Exquisite Nig Ltd. (2003) 4 NWLR (Pt. 809) 88.
The situation in this case is further compounded by the fact that the process served, as sworn to by the bailiff of the trial Court, was quite different from the process upon which the Court based its Judgment, I fully agree with my learned brother and the Justices of the Court below that the judgment of the trial Court was delivered without jurisdiction and is therefore a nullity. The Court below was right to set it aside.
For the more detailed reasons well adumbrated in the lead judgment, I also dismiss the appeal and endorse the award of costs to be paid personally by the appellants counsel.