The Court of Appeal, Kaduna Division, has nullified the judgment of the Federal High Court in a fundamental human rights suit filed by former Kaduna State Governor, Nasir El-Rufai, over an alleged N400 billion financial mismanagement.
In a unanimous judgment delivered on March 17, the appellate court ordered a fresh hearing of the case before another judge, citing breaches of El-Rufai’s constitutional right to a fair hearing.
The three-member panel, comprising Justice Onyekachi Otisi, Justice Abimbola Obaseki-Adejumo, and Justice Sybil Gbagi, set aside the entire proceedings and judgment of the lower court delivered 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 suit arose from an investigation by the Assembly through an ad hoc committee, which probed loans, contracts, and financial activities of the Kaduna State Government between May 29, 2015, and May 29, 2023.
The committee had indicted El-Rufai over alleged mismanagement of N400 billion. Aggrieved, the former governor approached the Federal High Court, contending that although about 70 individuals were invited, he was not served a hearing notice, yet the panel proceeded to issue recommendations affecting him.
Justice Otisi, in the lead judgment, said the central issue was whether the trial court had jurisdiction in the absence of proper service of notice on El-Rufai. The court found no credible evidence that he 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,” Justice Otisi said. “Service of process on a party to a proceeding is fundamental because it confers competence and jurisdiction on the court seized of the matter.”
The appellate court rejected the respondents’ claim that a text message to El-Rufai’s counsel sufficed, citing inconsistencies in the phone numbers used. It also faulted reliance on oral statements by a court registrar without documentary backing.
The court held that 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. Where a party has not been served, the proceedings are a nullity, however well conducted and decided,” the judgment read.
The court also noted 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 emphasized that El-Rufai was entitled to five days to file a reply on points of law, and the lower court had no discretion to abridge that timeline.
Justice Otisi described the proceedings as “far more than a mere refusal of an application for adjournment,” stating it amounted to a denial of the fundamental right of fair hearing.
Having established a breach, the appellate court declared the entire proceedings null and void and ordered a fresh hearing before another judge of the Federal High Court, directing 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, while Justice Gbagi described the appeal as meritorious and endorsed the retrial.
