ODITA V. OKWUDINMA & ANOR.
| Pages | 198-201 |
198
NIGERIAN SUPREME COURT CASES
[1969] N.S.C.C.
ODITA V. OKWUDINMA & ANOR.
MADAM AKINKUIYA ODITA
APPELLANT
V
EZEDIUNO OKWUDINMA (DECEASED)
IKECHUKWU OKWUDINMA (AN INFANT)
RESPONDENTS
BY HIS NEXT FRIEND - CHIEF P. OBI
ONYEBASHI
SUIT NO. SC 29/1966
SUPREME COURT OF NIGERIA
ADEMOLA,
C.J.N.
LEWIS,
J.S.C.
MADARIKAN,
J.S.C.
25th April, 1969.
Civil Action - Practice and Procedure - Prohibition - Failure to service notice -
Order dispensing such service - not mere irregularity.
ISSUE:
1
5
10
15
20
25
What is the effect of failure to serve notice on an appellant or alternatively to
obtain an order dispensing with such service ?
FACTS:
The Respondent filed an
ex-parte
application for leave to apply for an order of
prohibition against the Chief Magistrate in Asaba to prohibit him from hearing a
30
matter or determining such matter, as it had been adjudicated upon by the Benin
High Court. The High Court granted the application. The appellant appealed con-
tending that she was not given notice of the application and thus she was not heard
at the application and therefore the order of prohibition was null and void.
HELD:
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1. The failure to serve notice on the appellant or alternatively to obtain an order
dispensing with such service renders the proceedings a nullity, and not a mere
irregularity, as the Appellant was entitled as a person directly affected to notice
of the proposed application.
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CASES REFERRED TO IN JUDGMENT:
1.
Layanju v. Araoye
4 F.S.C. 154.
2.
R v. Hereford
(1943) L.T. 203.
3.
Craig v. Kanseen
45
Akere (for Maduenyi)
for the Appellant
Ohen
for the Respondent.
LEWIS, J.S.C. (Delivering the Judgment of the Court): On the 20th August,
1964 and application was made
ex-parte
by one Ikechukwu Okwudinma (an infant)
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by his next friend, Chief P. Obi Onyebashi, for leave to apply for an order of
prohibition and the relief sought was set out as -
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