ECOBANK v. RUBICON ENERGY SERVICES LTD & ORS (2021)

ECOBANK v. RUBICON ENERGY SERVICES LTD & ORS

(2021)LCN/15123(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/L/812/2016(R)

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

ECOBANK NIGERIA PLC APPELANT(S)

And

1. RUBICON ENERGY SERVICES LIMITED 2. FIRST DEEP WATER DISCOVERY LIMITED 3. TEMITOPE OLOWU 4. CHARLES IHEANACHO RESPONDENT(S)

RATIO

IMPORTANCE OF SERVICE OF A HEARING NOTICE ON A PARTY TO THE JURISDICTION OF THE COURT; DUTY OF THE COURT TO NOTIFY THE PARTIES OF THE DATE FOR HEARING; EFFECT OF A PROCEEDING CONDUCTED WITHOUT SERVICE OF HEARING NOTICE ON ALL THE PARTIES IN THE MATTER

Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice. It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him under the principle of audi alterem partem, which is one of the legs of natural justice. Fair hearing demands that each party in a dispute is given opportunity to be heard. It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence or jurisdiction of the Court to entertain the matter. See Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6; Leedo Presidential Motel Ltd v. Bank of The North Ltd & Anor (1998) LPELR-1775(SC); Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC); & Ors. v. Ikegbunam (2019) LPELR-49373(SC); Hon. Comm. For Local Government & Chieftaincy Affairs v. Chief Akpanette (supra). Once a hearing date has been fixed, the Court has a duty to notify the parties or counsel of the date, more so when the party was not present in the last proceedings or is unaware of the fixed date of hearing. The Court ought to be satisfied that there was service on a party. If the Court is not so satisfied, it ought not to proceed with the business of the day. See Compact Manifold & Energy Services Limited v. Pazan Services Nigeria Limited (2019) LPELR-49221(SC); AG of Rivers State v Ude (2006) LPELR-626(SC). If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside. See FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v Osiyi (2017) LPELR-42471(SC); Achuzia v Ogbomah (2016) LPELR-40050(SC). PER ONYEKACHI AJA OTISI, J.C.A.

PROVISIONS OF THE LAW REGARDING USE OF EMAIL AS A MEANS OF SERVING COURT PROCESSES

Advancements in global communication technology have led to electronic methods of service of Court processes. Relevant in this application is the use of the electronic mail, abbreviated as email. It is a system for sending messages to one or more recipients via telecommunications links between computers using a dedicated software or web-based service; Dictionary.com. Communication by email is almost instantaneous. An email address identifies an email box to which messages are delivered; Wikipedia. The use of emails as a means of serving Court processes was identified in Order 2 Rule 5 of the COA Rules, 2016 Rules as an address for service: Any reference in these Rules to an address for service means a physical or postal address within the Federal Republic of Nigeria or an electronic mail address or a facsimile number or telephone number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted. A person may operate several email addresses for different purposes. But the particular email address for service of Court processes must be provided to the Court by the party or his Counsel. Order 2 Rules 10, 11 and 12 of the COA Rules, 2016 further provide: 10. Where under these Rules any person has given an address for service, any notice or other process, which is not required to be served personally, shall be sufficiently served upon him if: (a) left at that address, or (b) sent by registered post to that address and in which case if the date of service by post is material, Section 26 of the Interpretation Act shall apply, or (c) transmitted by electronic means to the electronic mail address or facsimile number or, telephone number or any other mode of electronic communication. 11. Any party to an appeal or intended appeal may change his address for service at any time, by filing and serving on all other parties to the appeal or intended appeal, notice of such change. 12. Any person desiring to change his address for service shall notify the Registrar and shall also communicate the new address to all other parties to the appeal. PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER AN ORDER FOR DISMISSAL OF AN APPEAL FOR FAILURE TO FILE THE APPELLANT’S BRIEF CAN BE SET ASIDE

An appellant has 45 days within which to file his brief of argument, after the record of appeal has been transmitted from the lower Court; Order 19 Rule 2 COA Rules, 2016. Where the appellant fails to file his brief within this period, the Court may, either on the application of the respondent or suo motu, dismiss the appeal; Order 19 Rule 10(1) and (2). It is well settled that an appeal dismissed for failure to file the appellant’s brief cannot be restored, the Court is functus officio. See Governor of Zamfara State & Ors v. Gyalange & Ors (2012) LPELR-9715(SC). See also Attorney-General of The Federation & Ors v. The Punch Nigeria Limited & Anor (2019) LPELR-47868(SC); Ali Alaba International Limited & Anor v. Sterling Bank Plc (2018) LPELR-44903(SC), cited by the 1st Respondent in the List of Additional Authority. This is the state of the law. Ordinarily, there would be no jurisdiction to set aside an order dismissing an appeal for failure to file the appellant’s brief. PER ONYEKACHI AJA OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): By Motion on Notice filed on 7/12/2017, the Appellant/Applicant seeks the following Orders:
1. AN ORDER of this Honourable Court setting aside the Order made by this Honourable Court on the 9th June, 2017 dismissing this Appeal.
2. AND FOR SUCH FURTHER AND OTHER ORDERS as the Honourable Court may deem fit to make in this circumstance.

The grounds upon which the application was brought were:
1. There was no proper hearing notice issued to the Appellant informing the Appellant of the hearing of the Appeal on 9th of June 2017.
2. The Appellant did not receive any hearing notice informing it that the hearing of the Appeal has been fixed for the 9th of June, 2017.
3. That the proceedings of the 9th of June, 2017 wherein the Order distilling the Appeal was made, was a nullity having been conducted without having a proper hearing Notice being served on the Appellant.
4. The Appellant was not given fair hearing with regards the proceedings on 9th of June, 2017 in respect of which the Appeal was dismissed.
5. That sometime in early 2017, the name of the law firm

representing the Appellant was changed from B. Ayorinde to B. A. Law LLP.
6. That as a result, the email of the firm was changed from info@ayorinde-law.org to info@ba-law.org.
7. That no hearing notice was sent to the Appellant’s email which is info@ba-law.org.

In support of the motion was an affidavit of 21 paragraphs deposed to by Wale Arowosaye, Litigation Officer in the law firm, BA Law LLP, to which were annexed four Exhibits, marked Exhibits A, B1, B2 and C. There is also a Further and Better Affidavit filed 14/3/2019 also deposed to by Wale Arowosaye, to which were attached Exhibits EC1-EC8. The Appellant/Applicant, through Olu Adebanwo, Information Technology Administrator under the employment of TMT Systems, at No. 5, Ogunyade Street, Behind Mobil Filling Station, Gbagada, Lagos, also deposed to a Reply Affidavit in opposition to the Respondent’s Counter Affidavit on 29/8/2018. The 1st Respondent filed a Counter Affidavit in opposition on 9/1/2018. Annexed thereto were 2 Exhibits marked Exhibits RUB 1 and RUB 2.

Parties filed written addresses, as was ordered by the Court. The Appellant/Applicant’s written address

was filed on 24/7/2020. The 1st Respondent’s written address was filed on 25/8/2020. The 1st Respondent also filed a List of Additional Authority on 11/1/2021, and further relied on the case of Fatokun v Somade (2003) 1 NWLR (PT 802) 431. The Appellant/Applicant filed a Reply to the 1st Respondent’s written address on 7/9/2020. The respective written addresses were deemed properly filed and served on 21/1/2021.

At the hearing of arguments on the Motion on 21/1/2021, Chief Bolaji Ayorinde, SAN with Adenrele Adeghorioye, Esq., adopted the written addresses for the Appellant/Applicant and urged the Court to grant the application. For the 1st Respondent, Babajide Koku, SAN, with Ezinne Emedom, Esq., adopted the 1st Respondent’s written address and urged the Court to dismiss the application. The 2nd, 3rd and 4th Respondents filed no reaction to the Appellant/Applicant’s application. Although they were respectively served with hearing notices for the hearing of the application on 13/1/2021, there was also no appearance for the 2nd, 3rd and 4th Respondents at the hearing of the application.

Arguments
The Appellant/Applicant formulated two issues for determination of this application:
i. Whether the service of hearing notice for the proceedings of 9th of June, 2017 on the Appellant can be said to be properly effected?
ii. If the answer to the above is in the negative, what is the effect of any order made in the proceedings of the 9th of June, 2017

For the 1st Respondent, Senior Counsel Babajide Koku, SAN, this sole issue was distilled:
Whether having regard to the facts and circumstance of this case, this Honourable Court ought to set aside the Order made by this Honourable Court on the 9th of June, 2017.

The issues as formulated by both parties seek the same determination. I shall however be guided by the issues as framed by the Appellant/Applicant, whose application is under consideration.

Learned Senior Counsel, Chief Ayorinde argued that the essence of service of hearing notice is to bring to the attention of the party being served, the next hearing date of the matter, citing John A.S.C Ltd v. Mfon WRN (VOL 4) 173 at 188-189. It is therefore of utmost importance that a party is properly served with the hearing notice in order to enable him

attend Court on the next adjourned date. Counsel queried whether the Appellant can be said to have been properly served with the hearing notice of the proceedings of this Court for 9/6/2017 in view of the fact that the hearing notice issued by the Court was sent to a wrong address where no one could receive it. He submitted that the service of the hearing notice by the Registry of this Court for the proceedings of 9/6/2017 on the Appellant’s Solicitor was improper and invalid since there was undisputed evidence before the Court that the service of the said hearing notice was effected on a non-operational email address.

Senior Counsel further argued that the error as to the issuance of Hearing Notice on a wrong email address emanated from the Registry of this Court, consequences of such a mistake should not be visited on the Appellant, relying on Pam & Anor v. Jiba & Ors (2019) LPELR-48436(CA); Kangnaan v. Kangnaan (2019) LPELR-46502(CA). The Court was urged to declare the service of the Hearing Notice of the appellant’s Counsel as improper, same having been effected on a wrong email address.

It was further submitted under Issue

2, that in view of the fact that the service of the hearing notice of the proceedings of this Court for 9/6/2017 on Appellant’s counsel was improper, invalid and irregular, the proceedings on the said 9/6/2017 were devoid of the requisite jurisdiction and any order made in respect of the said proceedings ought to be set aside. Failure to serve hearing notice on a party where such notice is required renders the proceedings and any order made in the said proceedings a nullity. In the instant case, since the hearing notice of the proceedings of 9/6/2017 was not properly effected on the Appellant, it was submitted that the order made by this Court on 9/6/2017, dismissing this appeal was null and void and ought to be set aside. The case of Onwuka v Owolewa (2001) 7 NWLR (PT 713) 695 at 710 was also cited and relied on to submit that the service of the Hearing Notice on the Appellant’s Counsel through a non-operational email amounted to an invalid service which ought to be set aside.

It was further argued that the failure to serve process was not a mere irregularity but a fundamental defect which rendered the proceedings a nullity, relying on

Hon. Comm. For Local Government & Chieftaincy Affairs v. Chief Akpanette (2009) 9 NWLR (PT 1145) 108 at 118; Okon v Adigwe (2011) 15 NWLR (PT 1270) 350 at 371; International Bank Plc v. Onwuka (2009) 8 NWLR (PT 1144) 462 at 474. It was immaterial that the order of dismissal was made on the ground of want of diligent prosecution. The Court did not have the jurisdiction to make the order in view of the improper service of Hearing Notice on the Appellant of the proceedings of that day. The Court was urged to grant the application.

For the 1st Respondent, learned Senior Counsel, Mr. Koku, SAN, traced that the Appellant failed to file its Appellant’s Brief, leading the 1st Respondent to file a motion on notice dated 2/1/2016 seeking an order of Court to dismiss the Appellant’s appeal for want of diligent prosecution. On 9/6/2017, the Court being satisfied that the Appellant was served with the said motion and with hearing notice for the day proceeded to dismiss the appeal for want of prosecution. The Appellant/Applicant by the instant application, seeks to restore this dismissed appeal though the back door. He referred the Court to their Exhibits

attached to the Counter Affidavit of the 1st Respondent. Exhibit RUB1 was a certified true copy of the Delivery Service Notification, being a feedback from the destination server, the Appellant’s solicitor’s server, acknowledging receipt of the message and confirming that the hearing notice was indeed delivered to the email address of the Appellant at info@ayorinde-law.org at about 04.31 on 2/6/2017. Reference was also made to Exhibit RUB 2, the Appellant’s domain information, which shows that the Appellant’s email, info@ayorinde-law.org where the hearing notice for the proceedings of the 9/6/2017 was sent, was still operational, active and in use until the 2/12/2017 when same was deactivated. It was submitted that Exhibit B2 attached to the Appellant’s motion, the affidavit of service deposed to by the officer of this Court, was proof of the fact that hearing notice was delivered to the email address of the Appellant’s Solicitor and that Exhibits RUB 1 and RUB 2 further prove that the email address was still functional contrary to the contention of the Appellant. The Appellant was sufficiently served as envisaged by the

Rules of Court. The Court was referred to Bello v. NBN Ltd (1992) LPELR-15205(CA). The hearing notice being properly served on the Appellant via its solicitors, the Appellant was deemed to have knowledge of the Court proceedings of 9/6/2017.

Senior Counsel further submitted that Exhibit A, the letter dated 22/5/2017, by which the Deputy Chief Registrar was notified of the change of email address, did not comply with the Rules of the Court by filing and serving on all other parties to the appeal the change of address by the Appellant, as envisaged by Order 2 Rule 12 of the Court of Appeal Rules, 2016 (COA). Reliance was also placed on First Bank of Nig. Ltd v. T.S.A. Ind. (2007) ALL FWLR (Pt. 352) 1719 at 1742. The Appellant having not complied with mandatory provisions of Order 2 Rules 11 and 12 of the COA Rules, the Stamp of the office of Deputy Registrar cannot cure the defect on the Exhibit A. It was also contended that no stamp or seal of a lawyer is evident in Exhibit A to suggest that it was written by a lawyer. A party who wants to communicate a position to the Court must have its correspondence filed. On the effect of non-filing of any written

correspondence intended for a Court, the case of P.C.N. v Etim (2017) (Pt. 1581) 13 NWLR, 1 at 41-42, was cited and relied on. In the circumstances of this case, it was further contended that the conduct of the Appellant has shown that the Appellant, which failed to file its Appellant’s Brief within time, was tardy in the prosecution of its appeal. Further reliance was placed on Afonja Community Bank (Nig.) Ltd. v. Akpan (2001) 16 NWLR (Pt 792) 154. It was submitted that by the non-filing of the Appellant’s letter notifying the Court of a change of its email address, this Court was not notified of any change of address by the Appellant in compliance with the Rules of this Court. The Appellant was therefore served with the hearing notice for 9/6/2017.

It was further argued that once an appeal has been dismissed by this Court for want of prosecution for non-filing of appellant’s brief, the dismissal operates as a dismissal on the merits and the dismissal order cannot be set aside by this Court, relying on Tsokwa v. U. T. C. (Nig.) Ltd [2000] 7 NWLR (PT 666) 654, 661. Further reliance was placed on AG of the Federation & Ors v. Punch (Nig) Ltd & Anor (2019) LPELR-47868 (SC)

to submit that upon the notice dismissing the appeal, the Court had become functus officio and without jurisdiction to entertain any application to relist the appeal, relying on Omoyinmi v. Ogunsiji (2001) 10 NWLR 711 at 155; UBA Plc v. Michael Ajileye (1999) 3 NWLR (Pt.663) 116 at 123. It was submitted that this Court cannot revive this appeal by setting aside its earlier order of dismissal as the Court cannot sit on appeal on its own decisions.

It was further argued, assuming without conceding, that the Court had the jurisdiction to set aside the Order and proceedings of 9/6/2017 on grounds that same was a nullity, that the said proceedings do not constitute a nullity because the Appellant was afforded ample opportunity to be heard, having been served with the hearing notice. Fair hearing must be based on the facts of the case before the Court and that the facts available to the Court shows ample opportunity was provided to the Appellant, relying on Mr. Onigha Ogar Onah v. Chief (Sir) Linus E. Okom (2011) LPELR-9057(CA). Senior Counsel further relied on Fatokun v Somade (2003) 1 NWLR (PT 802) 431 in urging the Court to dismiss the application with substantial costs.

In Reply, Senior Counsel for the Appellant/Applicant, Chief Ayorinde, SAN, submitted that Exhibit A clearly notified the Registry of a new email address and not an additional email. Exhibit A was unambiguous and ought to be given its natural, ordinary and grammatical meaning, relying on Williams v Williams & Ors (2014) LPELR-22642(CA); Chukwu & Anor v Chukwu & Ors (2018) LPELR-45482(CA). It is only the Appellant’s Counsel that can supply their operational email address and cannot be compelled to continue with an email they have discontinued. Reliance was also placed on exhibits annexed to the Appellant/Applicant’s Further and Better Affidavit, Exhibits EC1 – EC8, which were Hearing Notices served on the Appellant’s Counsel through their new email address.

On the issue of noncompliance with Order 2 of the COA Rules, it was submitted that Order 2 Rule 11 envisaged a situation when the Appellant or Counsel changed a physical or office address. It is the Court Registry that sends hearing notices by email to parties or their Counsel. Notification to the Court

Registry of a change in address is sufficient compliance of change of address.

Resolution
Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice. It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him under the principle of audi alterem partem, which is one of the legs of natural justice. Fair hearing demands that each party in a dispute is given opportunity to be heard. It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence or jurisdiction of the Court to entertain the matter. See Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6; Leedo Presidential Motel Ltd v. Bank of The North Ltd & Anor (1998) LPELR-1775(SC); Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC);

Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC); Hon. Comm. For Local Government & Chieftaincy Affairs v. Chief Akpanette (supra).
Once a hearing date has been fixed, the Court has a duty to notify the parties or counsel of the date, more so when the party was not present in the last proceedings or is unaware of the fixed date of hearing. The Court ought to be satisfied that there was service on a party. If the Court is not so satisfied, it ought not to proceed with the business of the day. See Compact Manifold & Energy Services Limited v. Pazan Services Nigeria Limited (2019) LPELR-49221(SC); AG of Rivers State v Ude (2006) LPELR-626(SC).
If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside. See FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v Osiyi (2017)

LPELR-42471(SC); Achuzia v Ogbomah (2016) LPELR-40050(SC).

Having established that the issue of service is pivotal to the competence of the Court to hear the matter, the question is whether the Appellant/Applicant was served with hearing notice for the proceedings of 9/6/2017 at which this appeal was dismissed.

number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted.
A person may operate several email addresses for different purposes. But the particular email address for service of Court processes must be provided to the Court by the party or his Counsel.
Order 2 Rules 10, 11 and 12 of the COA Rules, 2016 further provide:
10. Where under these Rules any person has given an address for service, any notice or other process, which is not required to be served personally, shall be sufficiently served upon him if:
(a) left at that address, or
(b) sent by registered post to that address and in which case if the date of service by post is material, Section 26 of the Interpretation Act shall apply, or
(c) transmitted by electronic means to the electronic mail address or facsimile number or, telephone number or any other mode of electronic communication.
11. Any party to an appeal or intended appeal may change his address for service at any time, by filing and serving on all other parties to the appeal

or intended appeal, notice of such change.
12. Any person desiring to change his address for service shall notify the Registrar and shall also communicate the new address to all other parties to the appeal.
The Appellant/Applicant had deposed in the affidavit in support of the instant application:
5. That sometime in early 2017, the name of the firm representing the Appellant was changed from B. Ayorinde & Co to B.A. Law LLP.
6. That when the name of the firm changed, the official email of the firm was also changed from info@ayorinde-law.org to info@ba-law.org
7. That upon changing the firm email we stopped receiving emails sent to info@ayorinde-law.org
8. That hearing notice of matter at the Court of Appeal being handed by our firm are sent to us via email.
9. That on the 22nd of May, 2017, we forwarded a letter to the Deputy Chief Registrar of the Court of Appeal informing him of the change of email and that all notice should be sent to info@ba-law.org and not to info@ayorinde-law.org. Attached herein and marked Exhibit A is an acknowledged copy of the letter received by the Deputy Chief Registrar of the Court of Appeal Lagos.

That we were not aware of the proceedings of the Honourable Court on 9th of June, 2017 wherein the Appeal was dismissed.
11. That no hearing notice was sent to the official email of the firm which is info@ba-law.org as at the time the matter was coming up.
12. That we were shocked and surprised when we heard sometime at the end of July, 2017 that the Appeal had been dismissed on the 9th of June, 2017 in our absence.
13. That upon enquiry at the Registry of the Court of Appeal, we discovered that the hearing notice was sent on the 2nd of June, 2017 to the old email of info@ayorinde-law.org which was at that time no longer being used to conduct the business of the firm. Attached herein and marked Exhibit B1 and B2 are an application for a Certified True Copy of the hearing notice and Affidavit of Service of hearing notice showing where the email in respect of the hearing notice of the appeal was sent.
14. That there was no way the proceeding on the 8th of June, 2017 could have come to the knowledge of the Appellant, as hearing notice of the appeal was sent to the wrong email which no one was using.
15. That despite the

receipt of our letter intimating the Registrar of Court of Appeal of our new email address, the Registrar of the Court of Appeal still sent the email for the hearing of the notice of the appeal to the old email address of info@ayorinde-law.org which we no longer use.
It must be noted that hearing notices are usually served by the Registry of the Court on the party or Counsel through the provided address for service. As already noted, it is the responsibility of the Appellant/Applicant’s Counsel to provide his valid and operational email address. It cannot be speculated upon. Further, it is the responsibility of the party’s Counsel to notify the Registry if his email address has changed to ensure he receives due notification from the Court in fidelity with his duty to his client.
The Appellant/Applicant’s Counsel, in line with this duty wrote the Deputy Chief Registrar (DCR) of this Court on 22/5/2017, notifying the Court of their change of name and change of their email address. The letter was received by the DCR and duly acknowledged on 22/5/2017 at 1.22pm, Exhibit A annexed to the Appellant/Applicant’s affidavit in support

of the Motion on Notice. The Court Registry issued Hearing Notice for the proceedings on 9/6/2017 on 2/6/2017, Exhibit B. But, the email address to which the hearing notice was sent was info@ayorinde-law.org and not info@ba-law.org, this was in spite of the notification to the Registry of the new email address.
Now, I think it is important to emphasize that it is the party’s Counsel who must provide his valid and operational email address. This email address cannot be speculated upon. This is the reason why the postulations of Senior Counsel for the 1st Respondent are not moving. Exhibit RUB1, the certified true copy of the Delivery Service Notification, attached to the 1st Respondent’s counter affidavit, acknowledges that the hearing notice was indeed delivered to info@ayorinde-law.org on 2/6/2017. Exhibit RUB 2, also attached to the 1st Respondent’s counter affidavit, the Appellant’s domain information, may show that in actual fact the email address info@ayorinde-law.org was operational on 2/6/2017. But the relevant question is: was it the valid and operational email address now used by the Appellant/Applicant’s Counsel?

The obvious answer is a capital NO, having regard to the clear notification to the Court Registry on the law firm’s new name and email address. While an email address may not have been completely shut down, if it is no longer used by the person for certain purposes, attention may not be given thereto. The particular email may not be checked timeously or at all.
Exhibit A, was written to the Court and acknowledged. Senior Counsel for the Respondent had relied on the case of P.C.N. v Etim (supra) in arguing that written correspondence intended for a Court ought to be filed. Firstly, the case of P.C.N. v Etim (supra) involved a letter for adjournment written by one party but which was not copied to the other party. The Supreme Court held therein that the letter for adjournment, which was written to the trial Court’s registry, ought to have been served on the other party as well. Now, a letter seeking for an adjournment is of concern to both parties and to the Court. The adjournment of a matter lies within the discretionary powers of the Court. The other party has a right to be heard on the application before the Court can judicially and

judiciously exercise its discretion either way. It was not the case here. A hearing notice is served on the parties individually. It is not for the other party to express any opinion on the service of hearing notice. Therefore, a notification to the registry of the Court about a new email address would not be defeated by a failure to also notify the other party about the new email address.
I want to sound the caution that this position is guided by the extant Rules of this Court which have not made full provision for electronic filing of Court processes. A party has no obligation, under the extant Rules, to serve the other party with any Court process or communication by email. The use of emails is, for now, limited to service of hearing notices by the Court to the parties in a matter. Until that position is changed or the Rules of Court amended to accommodate e-filing and e-service of Court processes, it is the Registry that need be concerned with changes in email addresses.
Further, the use of the word ‘or’ in Order 2 Rule 10 demonstrate that intention to separate the preceding provisions from the one coming under, thereby each

provision is independent of the other, giving each a complete and independent identity. See Abioye & Ors v. Yakubu & Ors (1991) LPELR-43(SC); Fayemi & Anor v. Oni & Ors (2010) LPELR-4145(CA). See also Section 18(3) of the Interpretation Act, which provides that the word “or” and the word “other” shall, in any enactment, be construed disjunctively and not as implying similarity. A disjunctive particle generally expresses or marks an alternative in a statute. It indicates or provides a choice or option of one among two or more things. See FRN v. Ibori & Ors (2014) LPELR-23214(CA) per Saulawa, JCA (now JSC).
Therefore, by the clear provisions of Order 2 Rule 10, the physical address for service is separate and independent from the electronic mail address for service. By our extant Rules, the physical address for service of each party or their Counsel is of concern to both the parties and the Court, while the party or Counsel’s electronic mail address, is of concern to the Court for now. A change in the email address communicated to the Court Registry is therefore sufficient compliance with Order 2 Rule 12.

All considered, it is my finding, and I so hold that the Appellant/Applicant through its Counsel, was not properly served with hearing notice for the proceedings of 9/6/2017. I shall return to this point below.

However, the crux of the instant application was that the Appellant was not served with the hearing notice on the day that the 1st Respondent’s application to have the appeal dismissed for want of diligent prosecution was heard and the appeal consequently dismissed. In other words, the issue on the front burner is whether the Court can uphold its decision made on 9/6/2017, without service on the adverse party, that is to say, made without jurisdiction. To my mind, this is the turning point in this application.
The position of the law, as adumbrated above, is that a Court is without competence and jurisdiction to proceed to hear a matter without service of hearing notice on all the parties in the matter. Where the Court so hears a matter, the proceedings and orders arising therefrom amount to a nullity, no matter how well conducted the proceedings were. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside. See FBN Plc v TSA Industries Ltd (supra); Adegbola v Osiyi (supra); Achuzia v Ogbomah (supra).

Without service of hearing notice on the Appellant/Applicant, the order made by the Court on 9/6/2017 was a null order. It is on this basis that the said order must, in the interest of justice, be set aside.
I want to emphasize that I am not unmindful of the fact that the Appellant/Applicant was in default of filing its brief within time, and that the order of dismissal, if the Appellant/Applicant had been issued with a hearing notice, was proper. However, having found that the Appellant/Applicant was not validly served with a hearing notice for the proceedings of 9/6/2017, the said proceedings and the order of dismissal of the appeal arising therefrom, cannot stand.

I therefore grant the application as prayed. The order of this Court made on 9/6/2017, dismissing this appeal for want of prosecution is hereby set aside.

ABUBAKAR SADIQ UMAR, J.C.A.: I have read before now, the lead Ruling of my learned brother, Onyekachi Aja Otisi, JCA, just delivered in this appeal. My Lord had lucidly and succinctly stated the facts and relevant provisions of the law. I am therefore in agreement with the reasons given and the conclusion arrived

I only need to add my comments by way of emphasis on some points already dealt with by my learned brother.On the issue of the fundamentality of serving hearing notice, I will like to observe further that it is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. The law is well settled that any failure to serve a party entitled to notice of proceeding, is a fundamental defect, which goes to the root of the competence of the Court to deal with the matter. In other words, where the failure to serve him a hearing notice, any judgment given in that circumstances will be one given without jurisdiction and is liable to be set aside on appeal. See EMERAH & SONS V. DUNU (1998) 9 NWLR (PT 564) 86.
In the instant case from the record, it is clear that the appellant was not validly served with hearing notice for the proceedings of 9/6/2017, and as such proceeding is definitely a nullity and liable to be set aside.On the totality of this appeal therefore, I entirely adopt the ruling as mine and conclude that the appeal is meritorious. I allow the appeal.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Chief Bolaji Ayorinde, SAN, with him, Adenrele Adeghorioye, Esq. For Appellant(s)

Babajide Koku, SAN, with him, Ezinne Emedom, Esq. – for 1st Respondent
No appearance for 2nd, 3rd and 4th Respondents who were served with Hearing Notices on 13/1/2021 For Respondent(s)

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