“… The appellant applied by motion for the judgement given by Charles, J., to be set aside and for the appeal to be relisted and heard on the merits, but Beckley, J., dismissed the motion on the ground that he had no jurisdiction to grant the relief sought. The present appeal is brought against the order made by Beckley, J. Beckley, J., first considered whether jurisdiction to set aside a judgement given on an appeal was conferred by any statute or rule of Court, and we agree with his conclusion that it is not. The Customary Courts Rules do not apply to proceedings in the High Court, and the High Court Law is silent on the point. Order 26, Rule 8 of the High Court Rules deals with setting aside a judgement given in the absence of a defendant, but in the context it seems clear that it refers only to proceedings at first instance. Beckley, J., followed the judgement of the Divisional Court in Hession v. Jones [1914] 2 K.B.421, where it was held that the former Order 36, Rule 33 of the English Rules of the Supreme Court did not apply to proceedings on appeal, and we agree with what he said on the point. Beckley, J., went on to consider whether there was inherent jurisdiction to set aside a judgement given on appeal in the absence of the respondent and held that there was not. In this matter again he followed the decision in Hession v. Jones, and if the cases cannot be distinguished that decision is at least of strong persuasive value. We think, however, that the cases can be distinguished. In Hession v. Jones the respondent to an appeal had been duly served with notice of the appeal, and it was through the inadvertence of his solicitor that he was not represented at the hearing. In such a case it cannot be said that there was any fundamental defect in the proceedings which it is sought to set aside. In the present case we think the defect was fundamental. In Adeigbe and Another v. Kusimo and Another (1965) N.M.L.R.2R4, this Court approved a statement of the position by Bairamian, J.S.C., of which the relevant part reads- “A Court is competent when- (1) … (2) … (3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided.” A failure to notify the opposing party of the institution of any proceeding (other than one which is properly brought ex parte, in which case there is no opposing party) means that a condition precedent to the exercise of jurisdiction has not been fulfilled. This view was taken by the Court of Appeal in Craig v. Kanssen [1943] K.B. 256, to which Mr. Molajo referred us, but which was apparently not cited to Beckley J. In that case the plaintiff was granted an order by the High Court giving him leave to enforce a judgement under the Courts (Emergency Powers) Act, (1939) though the defendant had not been served with the summons. The High Court held that the order could only be set aside on appeal, but the Court of Appeal held that the defendant was entitled ex debito justitiae to have it set aside by the Court which made it. In delivering the judgement of the the Court, Lord Greene M.R., drew attention [at p. 258] to “the distinction between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity”. After considering a number of cases which turned on the distinction he said [at pp. 262-263]- “Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it. I say nothing on the question whether or not an appeal from the order, assuming it to be made in proper time, would be competent. The question, therefore, which we have to decide is whether the admitted failure to serve on the defendant the summons on which the order of January 18, 1940, was based was a mere irregularity, or whether it gives the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice”. This is a clear statement of principle, with which we respectfully agree, and if failure to serve process would be a fundamental vice in a Court of first instance it cannot be a mere irregularity in an appellate Court. In our view the High Court in the present case had jurisdiction to make the order sought. Though the ground for resisting it in the High Court was purely that of jurisdiction the notice of appeal does not invite this Court to allow the motion, but merely to rule that the Court below has jurisdiction to entertain it. That will be the judgement of this Court, but in view of the reasons for our decision we take it that the motion will now be granted as a matter of course by the High Court.”
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