ZEEKOIL (NIG.) LTD & ANOR v. NDIC
(2021)LCN/15846(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, April 01, 2021
CA/L/94/2009(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
ZEEKOIL NIGERIA LIMITED & ANOTHER APPELANT(S)
And
NIGERIA DEPOSIT INSURANCE CORP. RESPONDENT(S)
RATIO:
EFFECT OF NON SERVICE OF A HEARING NOTICE ON AN ADVERSE PARTY
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 of hearing notice on a party. If the Court is not so satisfied, it ought not to proceed with the business of the day; Compact Manifold & Energy Services Limited v Pazan Services Nigeria Limited (2019) LPELR-49221(SC); AG of Rivers State Ude (2006) LPELR-626(SC).
Service of 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. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): Before this Court is a Motion on Notice filed on 23/1/2019 by the Appellants/Applicants seeking for the following orders:-
“1. An extension of time to apply for the setting aside of the ruling of this Honourable Court made on the 4th day of December 2018 in Suit No. CA/L/94M/09 dismissing this appeal on ground of lack of prosecution.
2. An order of Court setting aside the ruling of this Honourable Court made on the 4th of December 2018 in Suit No. CA/L/94M/09 dismissing this appeal on ground of lack of prosecution.
3. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of the case.”
The motion filed by Omoniyi Aruwayo, Esq. is supported by a 14 paragraph affidavit and an exhibit, Exhibit AA which is the Appellants’ Brief of Argument. The Respondent on the other hand did not oppose the application as it failed and/or neglected to file a counter-affidavit in response to same. Learned Counsel for the Appellants/Applicants elected a sole issue for determination thus:
“Whether this Honourable Court could set aside its ruling striking out a case for want of diligent prosecution and relist same”
It is Counsel’s submission that this Court is empowered by the Rules of Court to set aside its judgment or ruling, especially on the ground of lack of diligent prosecution. He called in aid Order 6 Rules 1 and 2 of the Court of Appeal (Civil Procedure) Rules 2016 and Williams vs. Hope Rising (1982) 1-2 SC 145 at 153-155. Counsel posited that cogent reasons were advanced in the affidavit why he was absent from Court on the 4/12/2018. He made reference to the affidavit in support of the application more particularly paragraph 5. Counsel commended the case of B.G.C.C vs. Spetsai (1962) 1 All NIG. L.R.P. 496 at 499 which is to the effect that the Court has discretionary power to set aside a judgment which was obtained in default of appearance if the affected party satisfies the Court that it has a good defence. According to Counsel, the Appellants have since filed their brief of argument in this case.
He urged this Court to set aside the order striking out this case. Order 6 Rule 11 of the Court of Appeal Rules 2016 provides:-“An application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good reasons”.
The grounds upon which the application is brought are:-
a) “That the Applicant is desirous of diligently prosecuting this appeal in respect of which the followings have already been complied with.
i. Notice of appeal duly filed
ii. Record of proceedings already transmitted
iii. Appellant’s Brief of Argument already filed with motion seeking to regularize it.
b) The Appellants/Applicants were not having a functional email until recently when reactivated and that accounts for nor receipt of the hearing notices.
c) That the Appellant/Applicant has substantial and arguable grounds of Appeal.”
At paragraphs 5, 6, 7, 8, 9, 10, 11, 12, and 13 of supporting affidavit is stated as follows:-
5. “That I have been reliably informed by RAPHAEL OKONOKHUA ESQ of counsel and I verily believe as follows:
a. That the Appellants has since filed their Notice of Appeal in this matter.
b. Compilation and Transmission of Record of Proceedings have also been complied with
c. That the Appellants have also filed their Appellant Brief of Argument but having a pending motion to regularize the filing of the Brief of argument.
6. That I am aware that at a time the Counsel for the Respondent AKINWUNMI ESQ died and we have been expecting change of counsel.
7. That on routine basis we do come to find out the position of the matter.
8. That it was on one of such checks that we discovered that the matter has been dismissed since 4th December, 2018.
9. That on our defence that we did not receive hearing notice we were made to understand it was now being sent on email.
10. That on reactivation of our old email we discovered the two hearing notices that were earlier sent and notice of invitation from the Registrar to come and update our file.
11. That if we were duly informed of the hearing date nothing would have stopped us from coming to Court in respect of a case we have already filed our Appellant brief of Argument.
12. That I have been further informed by RAPHAEL OKONOKHUA ESQ and I verily belief that it is in the interest of justice to grant this application.
13. That Exhibit “AA” is a copy of the Appellant’s brief of argument.”
In the case of Williams vs. Hope Rising reported in (1982) 1-2 SC p145 at pages 153–155, the Supreme Court held that:
The principles guiding a Court when considering an application to set aside its own judgment given in the absence of one of the parties before it are:-
1. The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;
2. Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsides;
3. Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable;
4. Whether the applicant’s case is manifestly unsupported; and
5. Whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration.
In Williams vs. Hope Rising supra in pages 152 – 153, the Court also held that a person who applies to Court to extend time within which a procedural step is to be taken must put SOME MATERIAL before the Court on which to base the exercise of its discretion. Evidence of the materials for the extension of time are well stated in the Affidavit’s evidence.
The Supreme Court also held in the case of B.G.CC. V SPETSAI (1962) 1 ALL NIG L.R.P. 496 at p 499 that the Court has a discretionary power to set aside a judgment which was obtained in default of appearance if the affected party satisfies the Court that it has a good defence. The Appellants have since filed their brief of argument in this case.
From the depositions in the paragraphs of the supporting affidavit as reproduced above, it is clear that when the matter was dismissed by this Court on 4/12/2018, the Applicants did not receive hearing notice of the Court’s sitting of that day. This deposition is not countered by the Respondents. It is therefore deemed admitted. Furthermore, from the grounds of the application, it can be gleaned that the Applicants have duly filed their Notice of Appeal, transmitted the record and filed the Appellant’s Brief. Time is therefore enlarged for the Applicants to apply for the setting aside of the ruling of this Honourable Court made on 4/12/2018 in Suit Number CA/L/94M/09 dismissing this appeal on ground of lack of diligent prosecution. The ruling of this Court dismissing this appeal made on 4/12/2018 is hereby set aside.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read before now, a draft copy of the lead ruling of my learned brother, Abdullahi Mahmud Bayero, JCA, allowing the application filed by the Appellants/Applicants on 23/1/2019. I completely agree that the application deserves favourable consideration.
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 of hearing notice on a party. If the Court is not so satisfied, it ought not to proceed with the business of the day; Compact Manifold & Energy Services Limited v Pazan Services Nigeria Limited (2019) LPELR-49221(SC); AG of Rivers State Ude (2006) LPELR-626(SC).
Service of 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 therefore service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Thus, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect that goes to the root of the competence or jurisdiction of the Court to entertain the matter; Skenconsult (Nig.) Ltd. & Anor. 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).
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; FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v Osiyi (2017) LPELR-42471(SC); Achuzia v Ogbomah (2016) LPELR-40050(SC).
The crux of the instant application was that Appellant was not served with the hearing notice on the day that appeal was dismissed for lack of diligent prosecution. The Respondent failed to counter this assertion. Without service of hearing notice on the Appellants/Applicants, the Order made by the Court on 4/12/2018 was a null order. It is on this basis that the said order must, in the interest of justice, be set aside.
For these reasons and in view of the fuller reasons given by my learned Brother, I also grant the application as prayed and abide by the orders made in the lead ruling.
ABUBAKAR SADIQ UMAR, J.C.A.: I have been opportuned to read in draft, the ruling written by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA, and I agree completely with his reasoning and conclusions.
Appeal succeed.
Appearances:
Raphael Okonokhua For Appellant(s)
Aderemi Omotola For Respondent(s)