The Court of Appeal, Kaduna Division, has nullified the judgment of the Federal High Court in a fundamental human rights suit filed by a former Kaduna State governor, Nasir El-Rufai, ordering a fresh hearing before another judge.
In a unanimous judgment delivered on March 17, a three-member panel held that the trial court proceedings were conducted in breach of the appellant’s constitutional right to a fair hearing, primarily due to improper service of hearing notice.
The appellate court set aside the entire proceedings and judgment delivered by the lower court on July 30, 2024, ruling that the failure to serve El-Rufai with proper notice rendered the proceedings a nullity.
Dispute Over N400bn Probe
The appeal, marked CA/K/240/2024, was filed by El-Rufai against the Kaduna State House of Assembly and the Attorney General of the state. The dispute stemmed from an investigation by the Assembly through an ad hoc committee, which probed financial activities, loans, and contracts of the Kaduna State Government between May 29, 2015, and May 29, 2023. The committee had indicted El-Rufai over an alleged N400bn fraud.
Aggrieved by the development, the former governor approached the Federal High Court, claiming that although about 70 individuals were invited by the committee, he was not invited to appear, yet the panel proceeded to issue recommendations affecting him. The trial court had declined jurisdiction and transferred the case to the Kaduna State High Court, a decision that prompted the appeal.
Court: No Evidence of Service
Delivering the lead judgment, Justice Onyekachi Otisi, who presided alongside Justices Abimbola Obaseki-Adejumo and Sybil Gbagi, identified the central issue as whether the trial court had jurisdiction to determine the case in the absence of proper service of a hearing notice on the appellant.
The appellate court held that there was no credible evidence that El-Rufai was duly served.
“The lower court ought to have insisted on the production of acceptable proof of service to ascertain that the appellant was indeed served with hearing notice,” the court ruled. It emphasised that proof of service must be demonstrated through an affidavit or other credible documentary evidence.
Justice Otisi further stated, “There is no gainsaying the fact that service of process on a party to a proceeding is fundamental because it is what confers competence and jurisdiction on the court seized of the matter.”
Text Message Service Rejected
The respondents had argued that a hearing notice was served via a text message sent to counsel for the appellant, but the court rejected the claim, citing inconsistencies in the phone numbers relied upon.
“The phone number deposed to did not correspond with any of the numbers contained in the appellant’s originating processes,” the court observed.
It also faulted reliance on oral assertions by a court registrar without documentary backing, describing the approach as inadequate in law.
Proceedings Declared a Nullity
The court held that failure to serve hearing notice denied El-Rufai the opportunity to participate in proceedings and respond to critical filings, including a counter-affidavit relied upon by the trial court.
“Failure to serve court process, such as a hearing notice, goes to the root of the case. It is a condition precedent to the assumption of jurisdiction. Where a party has not been served with hearing notice, the proceedings are a nullity, however well conducted and decided,” the court held.
The appellate court further found that the trial court compounded the breach by proceeding to hear and determine the substantive matter on the same day it deemed the respondents’ processes properly filed, denying the appellant the five days he was entitled to file a reply on points of law.
Describing the proceedings as fundamentally flawed, Justice Otisi stated, “What happened was far more than a mere refusal of an application for adjournment. This is because it resulted in a denial of the fundamental right of fair hearing.”
Fresh Trial Ordered
Having established a breach of fair hearing, the appellate court declared the entire proceedings null and void and ordered a fresh hearing (de novo) before another judge of the Federal High Court. The court directed all parties to bear their respective costs.
In their concurring judgments, Justices Obaseki-Adejumo and Gbagi upheld the lead judgment. Justice Obaseki-Adejumo stressed the duty of courts to ensure proper service of hearing notices, stating that courts should not rely on mere assumptions or the oral statements of a court registrar without an affidavit of service. Justice Gbagi also described the appeal as meritorious and endorsed the order for a retrial.
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