DAVID SYLVESTER INEGBEBOH v. BEN A. OKPERE & ANOR
(2018)LCN/11842(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/B/336/2016(R)
RATIO
COURT AND PROCEDURE: FAILURE TO SERVE HEARING NOTICE
“Now, it is settled that failure to serve hearing notice on a party entitled to such service is a fundamental defect in proceedings of a Court and fatal to the case. It amounts to a breach of the right of the party on whom service of such notice was not effected to a fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The consequence of such failure is that the Court lacks the jurisdiction to entertain the proceedings and anything done thereon no matter how well and efficiently conducted amounts to a nullity. See SKEN CONSULT (NIG) LTD VS UKEY (1981)1 SC 6; WEMA BANK (NIG) LTD VS ODULAJA (2000) FWLR (PT 7) 138; NUT TARABA STATE & ORS VS HABU & ORS (2018) LPELR 44057 (SC).” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: DISPOSITION IN AN AFFIDAVIT
“It is now settled law that depositions in an affidavit, in the absence of any counter affidavit challenging same, are deemed to be admitted as true and established and should be acted upon by the Court. See AGBAJE VS IBRU SEAFOODS LTD (1972) 5 SC 50; FEMI FALANA VS BELLO (1995) 9 NWLR (PT. 418) 182; PHILIP VS OWOLABI (IN RE UKAEGBU) (2003) FWLR (PT. 148) 1364; EGBUNA VS EGBUNA (1989) 2 NWLR (PT. 106) 773; ALAGBE VS ABIMBOLA (1978) 2 SC 39.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
DAVID SYLVESTER INEGBEBOH Appellant(s)
AND
1. BEN A. OKPERE (For himself and on behalf of the Estate of his late father)
2. VINCENT A. OKPERE
(Suing by his lawful Attorney,
MRS. M.O. OKPERE) Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated the 23rd day of May, 2018 and filed on the 12th day of June, 2018 the Appellant/Applicant herein prayed this Court for the following orders:-
a) AN ORDER enlarging time within which the Appellant/Applicant can apply to set aside the judgment of this Honourable Court in Appeal No. CA/B/336/2016: DAVID SYLVESTER INEGBEBOH VS BEN A. OKPERE delivered on the 23rd day of March 2018, the fourteen (14) days prescribed by the Rules of this Honourable court having expired.
b) AN ORDER setting aside the said judgment obtained by the Respondent/Respondent in the absence of the Appellant/Applicant.
c) AN ORDER restoring/relisting this appeal for hearing and determination on its merit.
The grounds for the application are as herein below set out:-
a) That the Record of Appeal in this matter was transmitted to this Honourable Court out of time.
b) That we consequently filed motion for enlargement of time to transmit the said Record of Appeal which has already been transmitted as regularly compiled and transmitted to this Honourable Court.
c) That the motion was pending when this appeal was dismissed for wanting diligent prosecution.
d) That the said motion was said to have been fixed for the 23rd of March, 2018 for hearing.
e) That we did not receive any NOTICE intimating us of the said date for the hearing of the said motion.
f) That we were alleged to have been served by electronic means.
g) That on the 27th March 2018, we applied for the print out of the proof of the said electronic service.
h) That we waited for the proof of service until 7th day of May, 2018 when we were informed that the said proof of service was not available.
i) That we now require the order for enlargement of time of this Honourable Court to make the application.”
The said application was supported by a 26 paragraph affidavit deposed to by one Elizabeth Akhator. Attached to the said affidavit are two documents marked Exhibits ‘A’ and ‘B’ respectively.
Exhibit ‘A’ is a letter dated 9/3/17 and written to the Deputy Chief Registrar of this Court requesting for the setting down of the motion on notice filed on 30/8/2016 for hearing. Exhibit ‘B’ is another letter dated 27/3/2018 wherein the Appellant’s counsel applied for a certified true copy of the print out copy of the Electronic proof of Service.
A further and better affidavit of 6 paragraphs was also filed on 26/6/2018 and attached to it as Exhibit ‘C’ is a certified true copy of the proceedings of this Court on 23/3/2018 wherein the order of dismissal was made.
The Respondents who acknowledged service of the motion on notice and the attached processes did not file any counter affidavit.
At the sitting of this Court on 21/6/2018, the learned counsel for the Appellant/Applicant moved the said motion filed on 12/6/2018, wherein he relied on the facts deposed on the 26 paragraphs of the affidavit in support as well as the attached exhibits to urge the Court to grant the Application.
P.Y. Musa of counsel for the Respondents in his reply opposed the application on the basis that the judgment or order sought to be set aside was not attached to the application filed by the Appellant/Applicant.
Agwinede, in replying on points of law submitted that this Court can look into its own record to see the ruling of the Court sought to be set aside in the interest of justice even though it was not annexed to the application.
At this stage this Court made an order in the interest of Justice, granting the Appellant/Applicant leave to file within 7 days a further affidavit to attach the proceedings and Ruling of this Court sought to be set aside and which Ruling was delivered on 23/3/2018.
The said further affidavit as earlier indicated was filed on the 26/6/2018.
Now records of this Court show that this Appeal No. CA/B/336/2016 was dismissed by this Court vide the order made on the 23/3/2018.
The proceedings leading to the dismissal of the said appeal is herein below set out:-
Parties absent.
No appearance for Appellant. They were served on 21/3/2018.
K.O. OBAMOGIE
P.Y. MUSA RESPONDENT
O.L. EDOHO
C.C. OKPALEKE
Motion for extension of time for appeal to be struck out.
COURT = The motion filed on 30/6/2016 is hereby struck out for want of diligent prosecution.
Our motion was filed on 29/7/17 to dismiss the Appeal.
COURT= This appeal is hereby dismissed for want of diligent prosecution and in line with the Rules of this Court.”
Though it was not specified in the order of dismissal as above set out, under what particular Rules of Court the Appellant’s appeal was dismissed. But from the grounds for the application as earlier set out in this Ruling as well as paragraphs 5 to 23 of the Affidavit in support of the motion on notice it is glaring that as at the time the order dismissing the Appeal was made on 23/3/2018, the Record of Appeal had not been duly transmitted to this Court. Hence the application filed on 30/8/2016 that was struck out by the Court on 23/3/2018 before the order of dismissal was made was for enlargement of time to compile and transmit Record of Appeal to this Court and to deem the said Record already transmitted on the 17/8/16 as properly compiled and transmitted to this Court.
Exhibit ‘A’ attached to the Appellant’s motion to set aside the said order of this Court shows that the Appellant’s counsel wrote a letter to the Deputy Chief Registrar of this Court applying for the said motion to be set down for hearing to enable the Record of appeal to be regularised and the subsequent filing of the Appellant?s brief of argument. The said letter was dated 9/3/17 and received in this Court on 10/3/17.
However, on 27/3/2018, the said Appellant’s counsel wrote another letter to the Deputy Chief Registrar complaining about the dismissal of the appeal when the Appellant was not served or received any hearing notice for the proceedings of the date it was dismissed.
For the avoidance of doubt and the purposes of clarity, the content of paragraphs 5 to 23 of the affidavit in support of the application to set aside the order of this Court is herein below set out:-
5. That the Notice of Appeal was filed on the 6th Day of January, 2016 in this case.
6. That the Appellant/applicant timeously fulfilled the conditions of appeal imposed on him by the Registrar of the trial Court.
7. That because of the large volume of the record of Appeal, the Registrar of the lower Court could not transmit the said Record within the statutory Ninety (90) days period allowed by the Rules of this Honourable Court.
8. That consequently, we have to file Motion on the 30th day of August, 2016 for an enlargement of time within which to transmit Record of Appeal and to deem the Record of Appeal already transmitted as properly compiled and transmitted.
9. That when no date was fixed for the said motion, we were constrained to apply to the Deputy Chief Registrar for a date for the said Motion by our letter dated the 9th day of March, 2017. A copy of our said letter is herein attached as Exhibit ‘A’.
10. That the said Motion was pending before this Honourable Court.
11. That on Wednesday, the 9th day of May, 2018, our principal in Chambers, S.O. Agwinede Esq., informed me in our Chambers at about 11.35am and I verily believe that he was informed by K.O. Obamogie Esq. On Monday, the 26th day of March, 2018, that this appeal had come up for hearing and same was dismissed for want of diligent prosecution because we were not in Court.
12.That the following day being the 27th day of March, 2018, we applied to the Deputy Chief Registrar of this Honourable Court for a Certified True Copy of the print out of the Electronic Proof of Service of the Hearing Notice on us.
A copy of the said application letter is herein attached as Exhibit ‘B’.
13. That we made several visits to the Registry of this Honourable Court for the result of our said application to no avail.
14. That on one of our visits to the Court of Appeal in the Company of our Principal S. O. Agwinede Esq., Ovigwe Ogbodu of the Electronic Service Unit of this Honourable Court requested for the Handset that has the phone number the said electronic message was sent to.
15. That the said Handset was immediately made available to her and she personally scrolled through all the messages sent into the phone on the 21st day of March, 2018, and she did not see the message allegedly sent on the said date.
16. That the phone number we made available to the Registry of this Honourable Court for all our messages is MTN No. 08033698234 and NOT 08056341388.
17. That it was only on Monday, the 7th day of May, 2018, that Mr. Ismail Badamasi of the Electronic Service Unit finally informed us that they have no proof of service of the alleged electronic message.
18. That as a result of the reasons deposed to above, the statutory 14 (fourteen) days prescribed for making application to set aside the judgment of this Honourable Court had expired.
19. That due to lack of NOTICE of the date of the said hearing of the appeal, we even thought erroneously, that the said matter came up on Monday, the 26th day of March, 2018, the date we were informed of the dismissal of our appeal by the said Respondent/Respondent?s counsel, which date we stated in Exhibit ‘B’.
20. That the Appellant/Applicant has always been very diligent in the prosecution of this appeal.
21. That the Appellant/Applicant’s Notice of Appeal contain substantial and arguable grounds of appeal.
22. That the time to file the Appellant/Applicant’s Brief of Argument has not started running since the Record of Appeal transmitted to this Honourable Court out-of-time has not been regularised as aforesaid.
23. That it will not be prudent for the Appellant/Applicant to base his Brief of Argument on an incompetent Record of Appeal.
The Respondent did not file any counter affidavit to challenge or contradict the facts deposed to in the Appellant’s affidavit.
It is now settled law that depositions in an affidavit, in the absence of any counter affidavit challenging same, are deemed to be admitted as true and established and should be acted upon by the Court. See AGBAJE VS IBRU SEAFOODS LTD (1972) 5 SC 50; FEMI FALANA VS BELLO (1995) 9 NWLR (PT. 418) 182; PHILIP VS OWOLABI (IN RE UKAEGBU) (2003) FWLR (PT. 148) 1364; EGBUNA VS EGBUNA (1989) 2 NWLR (PT. 106) 773; ALAGBE VS ABIMBOLA (1978) 2 SC 39.
Given the facts deposed to in the affidavit in support of the application particularly paragraphs 9 to 17, it is evident that the Appellant did not receive any hearing notice for the motion he has been eagerly awaiting to be heard to enable him regularise his Record of Appeal. This Court was unfortunately given the wrong information by the Court officials to the effect that the Appellant was served hearing notice for the 23/3/2018 on the 21/3/2018 and this misinformation led it to strike out the Appellant’s motion on notice filed on 30/8/2016 for enlargement of time to regularise the Record of Appeal and to grant the Respondent’s application to dismiss the appeal for want of diligent prosecution.
Unfortunately, one of the said Court officials did make known to the Appellant’s counsel that they have no proof of the service of the hearing notice via electronic message. Hence it was deposed thus in paragraphs 16 and 17 of the affidavit in support:-
”16. That the phone number we made available to the Registry of this Honourable Court for all our messages is MTN No. 08033698234 and NOT 08056341388.
17. That it was only on Monday, the 7th day of May, 2018 that Mr. Ismail Badamasi informed us that they have no proof of service of the alleged electronic message.”
Now, it is settled that failure to serve hearing notice on a party entitled to such service is a fundamental defect in proceedings of a Court and fatal to the case. It amounts to a breach of the right of the party on whom service of such notice was not effected to a fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The consequence of such failure is that the Court lacks the jurisdiction to entertain the proceedings and anything done thereon no matter how well and efficiently conducted amounts to a nullity. See SKEN CONSULT (NIG) LTD VS UKEY (1981)1 SC 6; WEMA BANK (NIG) LTD VS ODULAJA (2000) FWLR (PT 7) 138; NUT TARABA STATE & ORS VS HABU & ORS (2018) LPELR 44057 (SC).
In MUSA VS DALWA (2010) LPELR 9154 (CA), this Court held that parties to a suit must be given adequate notice as to the date the proceedings will take place. Failure to give notice of proceedings to an opposing party in a case where service of process is required is fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. See also MARK VS EKE (2004) 5 NWLR (PT 865) 54; ONONYE VS CHUKWUMA (2007) 17 NWLR (PT 953) 90.
The bottom line therefore is that failure to give hearing notice of proceedings to a party in a case where such service is required as in the instant case is a fundamental error which nullifies such proceedings because the Court is devoid of jurisdiction to entertain it.
It follows that the proceedings of this Court which held on the 23/3/2018 wherein the Appeal No. Ca/B/336/2016 filed by the Appellant was dismissed for want of diligent prosecution when no hearing notice was served on the said Appellant for that date is null and void.
If an order of a Court is a nullity, it can be set aside without much ado. In other words, an order, be it by consent or otherwise, which is a nullity is something which the person affected thereby is entitled to have set aside ex debito justitiae. See LEONARD OKOYE & ORS VS N.C.F.C. LTD (1991) 7 SC (PT 111) 32; AWOYEGBE VS OGBEIDE (1988) 3 SC 137; ACB LTD VS LOSADA (NIG) LTD & ANOR (1995) 7 SCNJ 158.
In the instant case, this Court in dismissing the appeal for want of diligent prosecution acted under a fatal misrepresentation of facts by the registry of this Court that the Appellant was served hearing notice for the proceedings of 23/3/2018 when infact there was no such service on him.
Consequently, on the strength of the above cited authorities, this application succeeds and it is hereby granted.
It is hereby ordered as follows:-
1. Time is hereby extended to today within which the Appellant/Applicant can apply to set aside the order of this Court in Appeal No. CA/B/336/2016: DAVID SYLVESTER INEGBEBOH VS BEN A. OKPERE made on the 23rd day of March 2018 the fourteen (14) days prescribed by the Rules having expired.
2. The Order of this Court dismissing the Appellant?s appeal NO. CA/B/336/2016 for want of diligent prosecution and which order was made on 23/3/2018 is hereby set aside.
3.The said Appeal No. CA/B/336/2016 is hereby ordered to be relisted in the cause list of this notice filed on Court.
4. The Appellant’s motion on notice filed on 30/8/2016 but struck out on 23/3/2018 is ordered to be relisted for hearing and determination.
Parties to bear their costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the ruling just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA. I agree that the appellant/applicant?s motion on notice filed on 12/06/2018 is meritorious and I also grant it in the terms set out in the leading ruling.
I make no order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the preview of the Ruling just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree with the reasons and conclusion that the application succeeds and it is granted.
I abide by the consequential orders contain in the leading Ruling.
Appearances:
S.O. AGWINEDEFor Appellant(s)
P.Y. MUSA with him, C.C.
OKPALEKEFor Respondent(s)
