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.
The appellate court, in a unanimous judgment delivered on March 17, held that the trial court proceedings were conducted in breach of El-Rufai’s constitutional right to a fair hearing.
The three-member panel comprised Justices Onyekachi Otisi, Abimbola Obaseki-Adejumo and Sybil Gbagi.
The Certified True Copy of the judgment, sighted by Saturday PUNCH on Friday, showed that the appellate court set aside the entire proceedings and judgment delivered by the lower court on July 30, 2024.
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 arose from an investigation conducted 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, arguing that although about 70 individuals were invited by the committee, he was excluded yet the panel proceeded to issue recommendations affecting him.
The trial court, however, declined jurisdiction and transferred the case to the Kaduna State High Court, a decision that prompted the appeal.
In the lead judgment, Justice Otisi 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 found no credible evidence that El-Rufai was duly served with the hearing notice.
“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.
The court stressed that proof of service must be demonstrated through an affidavit or other credible documentary evidence.
Justice Otisi further held that service of court processes on a party to a proceeding is fundamental because it is what confers competence and jurisdiction on the court.
The respondents had argued that hearing notice was served via a text message sent to counsel for the appellant, but the court rejected the claim after finding 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.
The court also faulted the reliance on oral assertions by a court registrar without documentary backing, describing the approach as legally inadequate.
It held that the failure to serve the 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.
It held that the appellant was entitled to five days to file a reply on points of law, stressing that the lower court had no discretion to abridge that timeline.
Justice Otisi described the proceedings as fundamentally flawed, stating that what occurred went far beyond a mere refusal of an adjournment application, as it resulted in a denial of the fundamental right to fair hearing.
The court reiterated that while expeditious determination of cases is desirable, it must not override constitutional safeguards.
Having established a breach of fair hearing, the appellate court declared the entire proceedings null and void and set aside the judgment of the lower court.
The court consequently ordered a fresh hearing before another judge of the Federal High Court and 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 that courts must not predicate decisions on a mere assumption that a party was served, nor rely on the statement of a court registrar without an affidavit of service.
Justice Gbagi described the appeal as meritorious and endorsed the order for a retrial.
