POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI

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the respondent that there were proofs of service or proofs of hearing notice on the appellants in the court's file is of no consequence. There is no evidence in the record of appeal that hearing notices were served on the appellants. More over, learned counsel's argument, no matter how brilliant is not proof of evidence. From the above findings, I am satisfied that the purported hearing of the respondent on which he testified and established his claim as shown on page 48 - 50 of the record is a nullity because the defendants/appellants were not served hearing notice. It is therefore clear that the trial Judge heard evidence and gave judgment in contravention of statutory requirement to serve hearing notice before proceedings. The appellants were denied right of lair hearing as constitutionally enshrined under Section 36 of the 1999 Constitution and an abuse of the honoured principle of audi alteram partem rule. Consequently, parties' issue 6 is resolved in favour of the appellants. Issue six is enough in allowing the appeal. Issues 1 - 5 are discountenances, they are regarded as hypothetical issues. It is settled law that where proper parties are not before a court the court is without jurisdiction to adjudicate. See PLATEAU STATE v. A-G FEDERATION (2006) 1 SC (pt.1) 64; AMODU v. AJOBO (1997) 7 NWLR (pt.406) 170. The appellants are entitled to N10,000.00 costs against the respondent. 11
OMAGE, J.C.A.: I am privileged to read in advance the lead judgment of my learned brother, I. Thomas, JCA. It is evident from the printed record that the proper parties were not in the court below. The Court is thereby without jurisdiction to hear the plaint for it would be unjust to determine the salient issues in the matter without the proper parties and deny the parties any hearing, when the parties were not served. The appeal is struck out. I abide by the consequential order for costs. SAULAWA, J.C.A.: I have had the privilege of reading the draft of the lead judgment of my learned brother THOMAS, JCA, just delivered by him. I agree with him that this appeal has merit and ought to thus be allowed. However, for purposes of emphasis I have deemed it most appropriate to make my own contribution. As it would appear from the records, this is an appeal against the judgment of the lower court in suit NO FHC/PH/126/95 dated 30/11/99 Coram P.F. OLAYWOLA in the said suit the present. Respondent had claimed against the Appellants severally and jointly, as follows: (a) N300,000,00 (Three Hundred Thousand naira) only as special damages or the actual market value of the Minolta power supply boards which the defendants accepted from the Plaintiff for carriage to America but failed or defaulted to do so as contracted or return same to the Plaintiff or 12
Page 2 and 3: POST MASTER GENERAL & ORS. V. MR. M
Page 4 and 5: "It is well settled law that, once
Page 6 and 7: 6 PRACTICE AND PROCEDURE - SERVICE
Page 8 and 9: 6. Whether in the circumstances of
Page 10 and 11: P. J. Olayiwola Judge 13-4-99 From
Page 14 and 15: account for their (sic) where about
Page 16 and 17: on 22/3/2005 and raised therein six
Page 18 and 19: fundamental defect. Thus, absence o
Page 20 and 21: That fortiori the judgment delivere
Page 22 and 23: There was as usual no proof that th
Page 24: NWANKWO (2003) 9 NWLR (part 826) 59

POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI

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