The Court of Appeal, Kaduna Division, has set aside the judgment of the Federal High Court in a fundamental rights suit filed by former Kaduna State Governor, Nasir El-Rufai.
Bellnews reports that the appellate court ordered that the case be heard afresh before another judge.
In a unanimous judgment delivered on March 17, a three-member panel held that the lower court proceedings violated El-Rufai’s constitutional right to fair hearing.
The panel, comprising Justices Onyekachi Otisi, Abimbola Obaseki-Adejumo and Sybil Gbagi, nullified the entire proceedings and judgment delivered on July 30, 2024.
“The proceedings and decision of the lower court amount to a nullity and are liable to be set aside,” the court ruled.
The appeal, marked CA/K/240/2024, arose from a suit filed by El-Rufai against the Kaduna State House of Assembly and the state Attorney General.
The dispute followed an investigation by an ad hoc committee of the Assembly into the financial activities of the Kaduna State Government between May 2015 and May 2023.
The committee had indicted the former governor over an alleged ₦400 billion fraud.
El-Rufai approached the Federal High Court, arguing that although about 70 individuals were invited by the panel, he was not invited to appear before it, yet recommendations were made against him.
However, the trial court declined jurisdiction and transferred the case to the Kaduna State High Court, prompting the appeal.
In the lead judgment, Justice Otisi held that there was no credible evidence that El-Rufai was served with a 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 held.
She stressed that proper service is fundamental to the competence and jurisdiction of a court.
“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,” she added.
The respondents had argued that a hearing notice was served via a text message to the appellant’s counsel.
However, the court rejected the claim, noting inconsistencies in the phone numbers used.
“The phone number deposed to did not correspond with any of the numbers contained in the appellant’s originating processes,” the court observed.a
It also faulted reliance on oral claims by a court registrar without documentary evidence.
The appellate court held that failure to serve hearing notice denied the appellant the opportunity to respond to filings, including a counter-affidavit.
The court stated, “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 further faulted the lower court for proceeding to determine the case on the same day it deemed the respondents’ processes properly filed.
It held that El-Rufai was entitled to five days to respond, adding that the court had no discretion to abridge the timeline.
Describing the process as flawed, Justice Otisi said, “What happened was far more than a mere refusal of an application for adjournment… it resulted in a denial of the fundamental right of fair hearing.”
Having found a breach of fair hearing, the court ordered a fresh hearing of the suit before another judge of the Federal High Court.
It also directed all parties to bear their respective costs. In their concurring judgments, Justices Obaseki-Adejumo and Gbagi upheld the decision.
Justice Obaseki-Adejumo emphasised that courts must ensure proper service of hearing notices.
“The court should not predicate its decision on a mere assumption that a party must have been served,” she held.
Justice Gbagi also described the appeal as meritorious and supported the order for a retrial.