Cross River North Senatorial District By-Election: Supreme Court Strikes Out Odey’s Appeal In Split Decision

— Says Subsequent Substituted Service Order Does Not Cure
Original Defective Service
— Service To Lawyer Rather Than Parties Is Not Sufficient To Be
Term Improper Service— Justice Ogunwumiju [Dissenting]

In a split decision of four to three, the Supreme Court on
Thursday struck out the appeals filed by Senator Stephen Odey and
the Peoples Democratic Party (PDP) in the dispute over who, between
Senator Stephen Adi Odey and Jarigbe Agom Jarigbe, is the authentic
candidate of the Peoples Democratic Party (PDP) in the December 5,
2020 by-election in Cross River North Senatorial District.

Justice Centus Chima Nweze, who read the lead majority judgment,
held that the notice of appeal filed in the appeal by Ody, marked:
SC/CV/9/2021 was defective because it did not reflect the personal
addresses of the first and second respondents in the appeal –
Jarigbe and John Alaga.

Justice Nweze held that although the notice of appeal bore the
addresses of their lawyers and it was served on them, the
appellant’s failure to serve the notice personally on the parties,
as against their lawyers, robbed the court the necessary
jurisdiction to hear the appeal.

He added that the order of substituted service later obtained by
the appellant, and which was executed could not have cured the
defect occasioned by the improper service, because the Supreme
Court lacked the jurisdiction to have granted the ex-parte order
for substituted service.

Justice Nweze said the improper service of the notice of appeal
amounted to a non-service which touches on the respondents’ right
to fair hearing.

He upheld the preliminary objections raised by Alaga and Jarigbe
and proceeded to strike out the appeal.

Justices Abdu Aboki, Tijani Abubakar and Sameul Oseji agreed
with Justice Nweze’s position.

Justices Musa Datijo Mohammad (who led the seven-man panel),
Helen Ogunwumiju and Emmanuel Agim held otherwise in the dissenting
minority judgement.

Justice Mohammed, in the lead dissenting judgment, upheld the
appeal and dismissed the objections by Alaga and Jarigbe on the
grounds that the service of the notice of appeal was proper.

He held that it was not the law that service of notice of appeal
on a counsel to a respondent amounted to improper service.

Justice Mohammed said the decision of the appellant to serve the
notice of appeal on the addresses provided at the lower by lawyers
to Alaga and Jarigbe, without them providing their personal
addresses, cannot by any stretch of imagination, termed improper
service.

Justice Ogunwumiju said the fact that the notice of appeal was
served on the respondents’ lawyers as against their personal
addresses, was not enough to be termed improper service.

Justice Agim held that not only was the service proper, the
ex-parte order for substituted service, which the appellant
executed by publishing the notice in a newspaper was additional
efforts to ensure that the respondents were aware of the case.

He said the essence of service was for the respondents to be
aware of a case pending against them, adding that since the
respondents did not deny being aware of the case, but participated
fully by filing their briefs, they issue of whether service was
proper or not did not arise.

The court applied the judgment in the appeal by Odey to a
similar one, marked: SC/CV/1055/2020 filed by the PDP.

Odey had, in the appeal, prayed the Supreme Court to, among
others, set aside a portion of the judgment delivered by the Court
of Appeal, Abuja on December 17, 2020 directing INEC to recognise
Jarigbe as the candidate of the PDP for the by-election.

Odey added that the Court of Appeal, in its December 17, 2020
judgment “refused to set aside the consequential orders made by the
trial court, despite finding that the case filed before the FCT
High Court by Alaga was an abuse of judicial process and that the
court has no jurisdiction to entertain.

— Says Subsequent Substituted Service Order Does Not Cure
Original Defective Service
— Service To Lawyer Rather Than Parties Is Not Sufficient To Be
Term Improper Service— Justice Ogunwumiju [Dissenting]

In a split decision of four to three, the Supreme Court on
Thursday struck out the appeals filed by Senator Stephen Odey and
the Peoples Democratic Party (PDP) in the dispute over who, between
Senator Stephen Adi Odey and Jarigbe Agom Jarigbe, is the authentic
candidate of the Peoples Democratic Party (PDP) in the December 5,
2020 by-election in Cross River North Senatorial District.

Justice Centus Chima Nweze, who read the lead majority judgment,
held that the notice of appeal filed in the appeal by Ody, marked:
SC/CV/9/2021 was defective because it did not reflect the personal
addresses of the first and second respondents in the appeal –
Jarigbe and John Alaga.

Justice Nweze held that although the notice of appeal bore the
addresses of their lawyers and it was served on them, the
appellant’s failure to serve the notice personally on the parties,
as against their lawyers, robbed the court the necessary
jurisdiction to hear the appeal.

He added that the order of substituted service later obtained by
the appellant, and which was executed could not have cured the
defect occasioned by the improper service, because the Supreme
Court lacked the jurisdiction to have granted the ex-parte order
for substituted service.

Justice Nweze said the improper service of the notice of appeal
amounted to a non-service which touches on the respondents’ right
to fair hearing.

He upheld the preliminary objections raised by Alaga and Jarigbe
and proceeded to strike out the appeal.

Justices Abdu Aboki, Tijani Abubakar and Sameul Oseji agreed
with Justice Nweze’s position.

Justices Musa Datijo Mohammad (who led the seven-man panel),
Helen Ogunwumiju and Emmanuel Agim held otherwise in the dissenting
minority judgement.

Justice Mohammed, in the lead dissenting judgment, upheld the
appeal and dismissed the objections by Alaga and Jarigbe on the
grounds that the service of the notice of appeal was proper.

He held that it was not the law that service of notice of appeal
on a counsel to a respondent amounted to improper service.

Justice Mohammed said the decision of the appellant to serve the
notice of appeal on the addresses provided at the lower by lawyers
to Alaga and Jarigbe, without them providing their personal
addresses, cannot by any stretch of imagination, termed improper
service.

Justice Ogunwumiju said the fact that the notice of appeal was
served on the respondents’ lawyers as against their personal
addresses, was not enough to be termed improper service.

Justice Agim held that not only was the service proper, the
ex-parte order for substituted service, which the appellant
executed by publishing the notice in a newspaper was additional
efforts to ensure that the respondents were aware of the case.

He said the essence of service was for the respondents to be
aware of a case pending against them, adding that since the
respondents did not deny being aware of the case, but participated
fully by filing their briefs, they issue of whether service was
proper or not did not arise.

The court applied the judgment in the appeal by Odey to a
similar one, marked: SC/CV/1055/2020 filed by the PDP.

Odey had, in the appeal, prayed the Supreme Court to, among
others, set aside a portion of the judgment delivered by the Court
of Appeal, Abuja on December 17, 2020 directing INEC to recognise
Jarigbe as the candidate of the PDP for the by-election.

Odey added that the Court of Appeal, in its December 17, 2020
judgment “refused to set aside the consequential orders made by the
trial court, despite finding that the case filed before the FCT
High Court by Alaga was an abuse of judicial process and that the
court has no jurisdiction to entertain.