Service Of ‘Hearing Notice’ In Nigerian Courts: Some Legal Opinion Analyses

By Hameed Ajibola Jimoh Esq.

BACKGROUND/INTRODUCTION:

Service of hearing notice has always been a very important act or requirement in the litigation practice in Nigerian courts and the hearing notice has been made as part of the court processes to be considered by court in deciding disputes between or among disputing parties or litigants. Rules of various Courts have also provided for who to serve the hearing notice on any of the parties or litigant or Counsel in a suit pending before the court. Court bailiff have always been used to serve hearing notices. Furthermore, there have been certain risks attached to serving hearing notices such as: financial costs (especially having regard to the economic challenges in Nigeria as a result of the increase in transport fare and especially where the party to be served are many and in different but far locations); accidents; kidnapping as a result of insecurity; among other risks. Also, there have been occasions where some of the court bailiffs have acted in gross unprofessional manner in the service of hearing notice either by not serving the proper or appropriate person or not informing the Counsel or litigant that requested such service to be made of any challenge in the service or failure to serve the appropriate person at all, etc. which result in avoidable adjournment and embarrassment to the Counsel and or litigant in the open court and present him as not being diligent professionally in such service. The above reasons compelled this paper to offer some legal opinion analyses as to what are my thoughts and opinions on the subject matter. Hence, this topic.

 

  1. SERVICE OF HEARING NOTICE IS TANTAMOUNT TO FAIR HEARING UNDER THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED):

It is no doubt that the foundation of the need to serve hearing notice emanates from the Constitution of the Federal Republic of Nigeria, 1999, (as amended)-herein after referred to as the Constitution- which compels ‘fair hearing’. For instance, in the case of Guinness (Nig.) Plc v. Ufot (2008) Guinness (Nig.) Plc v. Ufot (2008) 2 NWLR (Pt. 1070) 51 at P. 82, paras. F-G held on ‘Effect of non-service of judicial process on jurisdiction of court’ thus “The principle of audi alteram partem is intricately connected with service of judicial processes. Therefore, where, as in the instant case, the appellant was not served with notice of motion for default judgment and or hearing notice, there is a breach of the principle of audi alteram partem and that of fair hearing. Again, by technically denying the appellant participation in the proceeding to set aside the judgment in default by not considering its affidavit evidence on the ground that it did not file a memorandum of appearance, amounted to a breach of the principle of audi alteram partem and a denial of fair hearing.” Per Owoade, JCA. (Underlining is mine for emphasis). Furthermore, in the case of EMERALD GARLAND BEVERAGES LTD. & ANOR v. MADUECHESI (2010) LPELR-4104(CA) held on the ‘Effect of non-service of court processes on the jurisdiction of a court in a suit’ thus “Service of process is vital under due process of law. See Ginda v. Kitta (1999) 12 NWLR Pt.629 at 21. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceeding void because the court has no jurisdiction to entertain it. See Tubonemi v. Dikibo (2006) 5 NWR pt.974 page 565. Ononye v. Chukwuma (2005) 17 NWLR pt.936 page 349. Idiata v. Ejeko (2005) 11 NWLR pt. 936 page 349. Onadeko v. UBN Plc. (2005) 4 NWLR pt 916 page 440. Ayogu v. Nnamani (2004) 15 NWLR pt. 895 page 134. Otobaimere v. Akporehe (2004) 14 NWLR pt. 894 page 591. Mark v. Eke (2004) 5 NWLR pt. 865 page 54. Wema Bank Nigeria Ltd. v. Odulaja (2000) 3 SC 83. Any judgment based on a process, which is not served is liable to be set aside. See Hypolite v. Egharevba (1998) 11 NWLR pt.575 page 598.” Per Aboki, J.C.A. (Pp.28-29, Paras.F-D. Furthermore, the Court held that “The right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), encapsulates so many elements or attributes. Thus, a hearing would be said to be fair, if the person to be affected by the decision of the Court is granted: (a) An opportunity to be present all through the proceedings in order to hear all the evidence against him; (b) The opportunity to cross-examine or otherwise confront or contradict all the witnesses that testify against him; (c) Opportunity to have read before him all the documents tendered in evidence at the hearing; (d) To have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, pre-judicial to him; (e) Opportunity to know the case he has to meet at the hearing and to have adequate opportunity to prepare his defence; and (f) Opportunity to give evidence himself, call witnesses, if he likes, and make oral submissions either personally or through a counsel of his choice.” Per TSAMMANI, JCA read in context. It is a cardinal principle of the administration of justice that a party to a cause must be given opportunity to be heard before any decision can be taken against him; and that if the principle is breached, the proceedings conducted in such circumstance would amount to a nullity no matter how eminently or elegantly conducted. See the cases of: OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PT. 730) 403 @ 421 A – D; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) 2 NWLR (PT. 226) 661; MOHAMMED & ANOR V. OLAWUNMI (1990) 2 NWLR (PT. 133) 458 @ 485 B – C; URHATA V. MENTA LTD (1968) NWLR 55 @ 58. Therefore, service of hearing notice being a pivot to the jurisdiction of a court of law must be taken seriously.

 

  1. SERVICE OF HEARING NOTICE BY THIRD PARTY IS A VALID PERSONAL SERVICE:

The Supreme Court of Nigeria has held on service and the validity of a service of hearing notice on a third party who eventually gives same to a party in action as same is ‘personal service’ thus ‘Service of court process by a bailiff on a third party, who eventually gives it to a party to an action constitutes proper “personal service.’ See the case of: ‘Akande  vs Jegede’ (2022) 14 NWLR (Pt.1849) 125 at 162 paras C-H, decided in May 2022’. Ruling on this point, their lordships held that:  “Where a party to an action was not personally served by a bailiff of court but receives a process from a third party who had earlier been served with the process by a bailiff, such service by the third party is still deemed to be personal service notwithstanding the absence of personal service from a bailiff. In this case, the non-compliance with the rules of court as to service of originating processes was at the instance and mistake of the court sheriffs when the 3rd respondent’s employee held out to the sheriffs that she was authorized by the 2nd and 4th respondents to accept processes on their behalf. [*Panache Communication Ltd. v. Aikhomu* (1994) 2 NWLR (Pt. 327) 420 referred to.] (P. 162, paras. C-G).” I must observe that this decision has overruled the technical position in ‘Emeka v Okoroafor’ (2017) LPELR-41738(SC) where the Supreme Court held that although the defendant was served, served at an address different from the one ordered by the court was invalid. “service of process on the defendant at No. 5 Mbanano Street, Independence Layout, Enugu, instead of Evangel House, Plot R8, Ozubulu Street, Independence  Layout, Enugu was invalid.”

 

  1. SERVICE OF HEARING NOTICE BY SMS IS A VALID PERSONAL SERVICE WITHOUT THE NEED FOR CERTIFICATE OF COMPLIANCE WITH SECTION 84 OF THE EVIDENCE ACT, 2011 TO PROVE SERVICE:

 On this, the Supreme Court of Nigeria held in the case of Attorney General of Federation v. Anebunwa (2022) 14 NWLR (Pt. 1850) thus “a document which was typed using a computer is not a computer-generated evidence…. Section 84 of the Evidence Act, 2011 intends that only complex evidence generated from the computer, against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected or subjected to scrutiny by the courts and not ordinary documents printed out of the computers” ‘Per Ogunwumiju JSC.’.

 

  • Furthermore, there have been decisions of the Appellate Court regarding the admissibility of SMS evidence. For the purpose of exposition on the subject matter, I shall reproduce some of these cases as follows for the reader’s benefits: ‘EMERGING MARKETS TELECOMMUNICATIONS SERVICES LTD. (ETISALAT NIGERIA) vs. ADOYI(2021)LCN/14954(CA) and the ‘ISSUE’ was on: ADMISSIBILITY OF GSM TEXT MESSAGE(S)-Circumstances under which gsm text messages are admissible in evidence without fulfillment of the preconditions in Section 84 of the Evidence Act, 2011(Issue is mine)’ and laid the following principles thus: “As regards Exhibit 5, the Appellant argues that it be expunged for non-compliance with Section 84 of the Evidence Act, 2011 as amended. It is trite and settled that admissibility of evidence is governed by Section 6 of the Evidence Act. A piece of evidence is admissible once it is found relevant and irrespective of how it was obtained unless the evidence be it oral or documentary, is excluded by statutory provision. The Appellant’s argument in respect of Exhibit 5 is that it may be relevant but has not complied with the requirement of other statute, a precondition for admissibility as it was sent to the Respondent’s phone and printed by him from another computer. In my view and humbly, the step taken by the Respondent is the reason why one is unable to agree with the learned Appellant’s argument in the particular circumstance of Exhibit 5. The Respondent retrieved some of the messages sent to his phone by the Appellant and typed them out. It is necessary to bear in mind that the messages were not public document or for the public domain, they were sent to the Respondent through the registered line he has with the Appellant. Further, the Respondent put the Appellant on notice to produce the certified true copies of a comprehensive printout which it failed to do. See page 7 of the Record. Having done all the foregoing, it will not be substantial justice for the Respondent to be deprived of relevant evidence as Exhibit 5 for his case due to no fault of his, on the basis of Section 84 of the Evidence Act. Whether or not he will get judgment is another matter entirely, he should not be disallowed to present his case before the Court with the necessary evidence for which he gave notice to the Appellant, the custodian of the comprehensive printout. Failure to produce the comprehensive printout on the part of the Appellant brings it under the presumption that such document if produced would be against it. In my considered view and humbly, Exhibit 5 as held by the Court remains part of the pieces of admitted evidence in the Respondent’s case, it will not be expunged. If that be the position, the reliance on same by the Court is proper and correct in the circumstance of this appeal.” Per WILLIAMS-DAWODU, JCA., OROGUN & ANOR. vs. FIDELITY BANK PLC (2018) LPELR-46601(CA), the ‘ISSUE’ decided was on: ADMISSIBILITY OF GSM TEXT MESSAGE(S)-Principles guiding the admissibility of GSM text messages in evidence; Whether where gsm text messages sought to be tendered are disputed, the party seeking to tender has a duty to get evidence of communication from the central portal of the service delivery company (Issue is mine)’. And therefore laid the following ‘PRINCIPLES’: “Exhibit P5 is SMS (GSM) message said to have written off the indebtedness. This is electronic or computer crime generated from Global Satellite Mobile (GSM) system into mobile phones which are also computers. When the message so generated is printed out the printed copies become primary documentary evidence. Section 258(1)(d) of the Evidence Act defines a document to include any device by means of which information is stored, recorded or retrievable including computer output. A GSM gadget with useful information can therefore be tendered in evidence together with the message or information stored by it. Once tendered and admitted in evidence it becomes documentary evidence. The duty then behoved the party that tendered it in evidence to read the information or message in the open Court as is the case with documentary evidence, or the parties may by consensus take the document as read. And/or the GSM gadget may be admitted in evidence as computer generated evidence under Section 84 of the Evidence Act. In this case, the respondent denied/disputed the GSM message in Exhibit P5. At that stage it was incumbent on appellant to call logs/evidence of communication from the central portal of the service delivery company, or identification evidence of the sender/receiver of such message should have been called by the appellant under Sections 94, 125 and 126 of the Evidence Act. Section 94 of the Evidence Act, for example provides- “(1) Evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such was written or signed by that person. (2) Evidence that a document exists to which the document the making of which is in issue purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document with the person to whom the earlier document was delivered”. Or in a case where written records are kept by a mobile phone user such written records are admissible to prove and/or corroborate the call logs on the said GSM phone vide the apt foreign case of R. v. Singh (2006) 1 WLR 1564 where the holder of the GSM phone kept a separate notebook in which he recorded numbers he had saved in the memory of the GSM phone, it was held that evidence in the notebooks which the user traced to the defendant, was admissible to show that the number saved belonged to the defendant. None of the options (supra) was adopted by the appellant in the instant case, therefore Exhibit P5 has no weight or probative value and cannot be relied upon as evidence that the respondent wrote off the huge debt of N29,257,743.51 by GSM message in Exhibit P5. I believe or think the essence of the Law of Evidence is discovery of the truth. Genuiness of any piece of evidence sought to be relied upon by a party in the case unless the document is admitted by the adverse party must of necessity be properly ascertained and verified to weed out or eliminate suspicious or spurious documents.” Per IKYEGH, JCA. (Pp.43-46,Paras.F-C).’.

 

  1. SERVICE OF HEARING NOTICE BY WHATSAPP OR FACEBOOK OR TWITTER TEXT MESSAGES OR VOICE CALL OR VIDEO CALL IS A VALID PERSONAL SERVICE:

The Supreme Court of Nigeria has held on service or the validity of a service on a third party who eventually gives same to a party in action as same is ‘personal service’ thus ‘Service of court process by a bailiff on a third party, who eventually gives it to a party to an action constitutes proper “personal service.’ See the case of: ‘Akande vs Jegede’ (2022) 14 NWLR (Pt.1849) 125 at 162 paras C-H, decided in May 2022’. Ruling on this point, their lordships held that:  “Where a party to an action was not personally served by a bailiff of court but receives a process from a third party who had earlier been served with the process by a bailiff, such service by the third party is still deemed to be personal service notwithstanding the absence of personal service from a bailiff. In this case, the non-compliance with the rules of court as to service of originating processes was at the instance and mistake of the court sheriffs when the 3rd respondent’s employee held out to the sheriffs that she was authorized by the 2nd and 4th respondents to accept processes on their behalf. [*Panache Communication Ltd. v. Aikhomu* (1994) 2 NWLR (Pt. 327) 420 referred to.] (P. 162, paras. C-G).”.

 

  • Furthermore, the Court has held on the Position of the law as regards admissibility in evidence of audio cassettes/ tape recording’ in the case of See, FEDERAL POLYTECHNIC, EDE & ORS v. OYEBANJI (2012) LPELR-19696(CA) thus:

“Before the coming into effect of the Evidence Act, 2011, the Courts made the best of the situation by expanding the definition of “document” to include computer generated information which to my mind includes tape recordings. See definition of “document” in Section 2(1) of the Evidence Act 1945 as amended and the cases of Ysuf v. ACB Ltd (1976) 1 SC 45: Anyaebosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt. 59) 108: Trade Bank PLC v. Chami (2003) 13 NWLR (Pt. 836) 216: FRN v. Fani-Kayode (2010) 14 NWLR (Pt. 1214) 481 at 506. Those type of evidence do not fall within the category of evidence made completely inadmissible in law. Rather they fall within the category of evidence admissible upon the fulfilment of certain conditions. In the case of a tape recording, as in other types of documentary evidence, it must be tendered by the maker subject to the usual exceptions. Contrary to the view of the learned trial judge, the maker of the tape recording is DW3. He testified that he recorded his conversation with the lady, Bolaji. But DW3 must lay the necessary foundation that will make the tape recording admissible in evidence. He must lead evidence to show that the tape recording is authentic in the sense that it is the original; that the voice in the recording is indeed that of Bolaji Opeseitan; that the tape was in his custody all the time and that there was no opportunity for anyone to tamper with it. None of these conditions was satisfied. If, for example Bolaji herself had identified the tape recording and admitted the voice therein to be hers, then the tape could possibly be rendered admissible but without such identification and in the absence of the person whose voice was said to have been recorded, the evidence is hearsay. The learned trial Judge was therefore right in ruling the tape recording inadmissible.” Per CHINWE EUGENIA IYIZOBA, JCA (Pp 45 – 46 Paras A – B)’. Also see the case of: OROGUN & ANOR. vs. FIDELITY BANK PLC (2018) LPELR-46601(CA) (supra).

 

  1. SERVICE OF HEARING NOTICE BY EMAIL IS A VALID PERSONAL SERVICE:

For instance, the Court held in the case of ECOBANK v. RUBICON ENERGY SERVICES LTD & ORS on the ‘Position of the law as regards the use of email address as a means of serving Court process; whether the other party must be notified of a change of email address’ held thus “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:

  1. 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.

  1. 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.
  2. 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:

  1. That sometime in early 2017, the name of the firm representing the Appellant was changed from B. Ayorinde & Co to B.A. Law LLP.
  2. 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
  3. That upon changing the firm email we stopped receiving emails sent to info@ayorinde-law.org
  4. That hearing notice of matter at the Court of Appeal being handed by our firm are sent to us via email.
  5. 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.
  6. That we were not aware of the proceedings of the Honourable Court on 9th of June, 2017 wherein the Appeal was dismissed.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.”.

 

  1. NO REQUIREMENTS FOR APPLICATION FOR AN ORDER OF SUBSTITUTED MEANS OR LEAVE OF COURT BEFORE A COUNSEL OR LITIGANT COULD EFFECT SERVICE OF HEARING NOTICE ON THE OTHER PARTY OR WITNESS IN A SUIT:

 

In my humble view and submission, ‘service of hearing notice’ though also the same as ‘fair hearing’ by which the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by section (36(1) and (6)(4) for both civil and criminal suits respectively, is the foundation, neither the Constitution (supra) not statutes provide for ‘mode of service of hearing notice’ to say that the rules that modes of statutes must be complied with can be applied to the issue of ‘service of hearing notice’. For instance, in the case of: F.C.D.A. v. Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C- D it was held that: ” The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity…no part of it can be described to be adjectival or procedural law…The Constitution is a substantive law.”. Also, in my humble submission, no rules of courts prohibit service in the above recommended means of service of hearing notice as recommended by this paper, hence, the law is firm that ‘what is not prohibited by law is permissible upon a citizen though it is otherwise the law that what is not permissible by law is prohibited on a government or any of its bodies’. This is because there is a cardinal principle of law that ‘What is not prohibited is permitted’. See: ANYAEBOSI VS. R.T. BRISCOE LTD. (1987) 3 NWLR (Pt. 59) 108, the apex court, aptly held, inter alia thus: “It is important to state that a computerized account …. does not fall into the category of evidence absolutely inadmissible by law. In my opinion, it falls within the category of evidence admissible…’. Also, in the case of Dankwambo V Abubakar (2015) LPELR-25716 (SC) the Supreme Court of Nigeria held thus “It is a cardinal principle of law that what is not expressly forbidden, is permitted.” Therefore, I humbly recommend that a court of law should only order hearing notice to be served rather than to be issued. This is because, where the court orders hearing notice to be issued and served, it becomes an order of court and upon issuance, it means only the bailiff of the court could serve same except as may be permitted by the court upon an undertaking to serve same made by the litigant or the counsel as the case might be. However, where a court orders hearing notice to be served, it becomes optional to the counsel or litigant to either serve same by other means without the bailiff or the court or without the court issued hearing notice or he may decide to request for the court issued hearing notice and mobilise the bailiff of court to serve same. Also, in my humble submission, where a court does not make any pronouncement in regard to the service of hearing notice on any litigant or person or counsel, it becomes optional for the litigant or counsel to use any of the means recommended by this paper and to depose to an affidavit of such service. In the case of THEOPHILUS V FRN (2012) LPELR-9846 their Law Lords held that: “the basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted…it is not within the court’s interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means…’. Wikipedia online also states this principle as an English law or common law principle thus ‘Everything which is not forbidden is allowed” is a legal maxim. It is the concept that any action can be taken unless there is a law against it. Slynn, Gordon; Andenæs, Mads Tønnesson; Fairgrieve, Duncan (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN 9789041113788. Glanville Williams, “The Concept of Legal Liberty”, Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019), Citizenship, ISBN 9780262537797, p. 159. It is also known in some situations as the “general power of competence” whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action. A cartoon in Hugo Gernsback’s Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy. The opposite principle “everything which is not allowed is forbidden” states that an action can only be taken if it is specifically allowed. A senior English judge, Sir John Laws, stated the principles as: “For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden.” Laws, John (October 2, 2017). “The Rule of Law: The Presumption of Liberty and Justice”. Judicial Review. 22 (4): 365–373. doi:10.1080/10854681.2017.1407068. S2CID 158167115 – via Taylor and Francis+NEJM. (Underlining is mine for emphasis). Legal philosopher Ota Weinberger put it this way: ” In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed”. Weinberger, Ota (October 29, 1988). “The Role of Rules”. Ratio Juris. 1 (3): 224–240. doi:10.1111/j.1467-9337.1988.tb00016.x – via Wiley Online Library.’.

 

  1. WHETHER THERE SHOULD BE AN ORDER OF COURT SOUGHT AND OBTAINED FOR SERVICE OF HEARING NOTICE BY SUBSTITUTED MEANS WHEN SUCH SERVICE IS TO BE BY OTHER MEANS OTHER THAN: SMS, PHONE CALL; WHATSAPP OR FACEBOOK OR TWITTER TEXT MESSAGES OR VOICE CALL OR VIDEO CALL AND WHETHER ANY OTHER MEANS APART FROM THE ABOVE MIGHT RAISE DOUBT UPON SUCH PURPORTED SERVICE:

In my humble submission, this would have been the current position of law relying on the case of Emeka v Okoroafor’ (2017) LPELR-41738(SC). However, in my humble view, since the Supreme Court has taken a new but different position in this regard, therefore, in my humble view, ‘if the facts could be proved by credible evidence that the said hearing notice was actually served on the said party or counsel through a ‘third party’ or by delivering same on a third party and such third party (human or technology or electronics) and same was delivered to the said party or counsel or where the said party or counsel appears in the court on the said of proceedings’. This is so because the Court has held that ‘fair hearing’ is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. Also, the Court have held that The true test of fair hearing therefore, is the impression of a ‘reasonable person’ who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co., Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771. Furthermore, relying on the decision of the Supreme Court in regard to service on third party who later delivers such court process on the person to be served. See the case of: The Supreme Court of Nigeria has held on service on the validity of a service on a third party who eventually gives same to a party in action as same is ‘personal service’ thus ‘Service of court process by a bailiff on a third party, who eventually gives it to a party to an action constitutes proper “personal service.’ See the case of: ‘Akande  vs Jegede* (2022) 14 NWLR (Pt.1849) 125 at 162 paras C-H, decided in May 2022’.

Ruling on this point, their lordships held that: “Where a party to an action was not personally served by a bailiff of court but receives a process from a third party who had earlier been served with the process by a bailiff, such service by the third party is still deemed to be personal service notwithstanding the absence of personal service from a bailiff. In this case, the non-compliance with the rules of court as to service of originating processes was at the instance and mistake of the court sheriffs when the 3rd respondent’s employee held out to the sheriffs that she was authorized by the 2nd and 4th respondents to accept processes on their behalf. [Panache Communication Ltd. v. Aikhomu (1994) 2 NWLR (Pt. 327) 420 referred to.] (P. 162, paras. C-G).” I must observe that this decision has overruled the technical position in ‘Emeka v Okoroafor’ (2017) LPELR-41738(SC) where the Supreme Court held that although the defendant was served, served at an address different from the one ordered by the court was invalid. “service of process on the defendant at No. 5 Mbanano Street, Independence Layout, Enugu, instead of Evangel House, Plot R8, Ozubulu Street, Independence  Layout, Enugu was invalid.”. Furthermore, our courts are more in tune with doing ‘substantial justice’ in a case rather than holding unto ‘technical justice’. For example, the Court of Appeal in the case of Amadu v Yantumaki (2011) 9 NWLR (part 1251) 161 C.A. (at page 182 para. C-D.) held thus ‘Rules of Court are meant to be obeyed. However, where strict compliance with the rules will lead to injustice, the rules should be abandoned in favour of doing substantial justice because the courts have shifted from technical justice. And this situation affects even area courts’. Therefore, what exists in courts among judges of competent jurisdiction is ‘substantial justice’ as the courts have moved away from technical justice and lawyers as ministers in the temple of justice are expected to assist the courts in achieving this end. This point was emphasized by the Court of Appeal in the case of Dairo v F.R.N. (2012) 16 NWLR (part 1325) 129 C.A, page 75, para. E) thus ‘The law has moved away from technicality to substantial justice’. The Supreme Court of Nigeria, as the apex court in Nigeria, also affirms the shift of courts from technicalities to substantial justice in the case of Maritime Management Associates v National Maritime Authority (2012) 18 NWLR (pt. 1333) 506, SC at page 541, para. C-E; 553 para. G-H) thus ‘’The Supreme Court is more interested in substance than technicalities that lead to injustice. Justice can only be done if the substance of the matter is carefully examined’. The same Supreme Court further held in the case of Offor v State (2012) 18 NWLR (pt. 1333) 421 SC at pages 446, para. E) thus ‘The law does not recognize technicalities as a replacement of substantial justice’.

 

  1. APPLICATION FOR SUBSTITUTED SERVICE OF HEARING NOTICE UNNECESSARY AND IS ONLY NECESSARY IN A PECULIAR CIRCUMSTANCE:

 

It may be, for example, that he is untraceable or evading service. See the case of: MADALLA v. GUSAU (2014) LPELR-22899(CA) ‘Ways by which a Defendant may be served with originating processes’ “The rules of court stipulate two main ways by which a Defendant may be served with originating processes; these are by personal service and by service other than personal. The former is the general rule while the latter represents a miscellany of the methods that are used on account of the peculiar circumstances of a particular Defendant or because of his disability or as a result of special circumstances of the case. Substituted service is very important form of non-personal service which is used often. If the Defendant for any reason, cannot be served personally, the method may be used. It may be, for example, that he is untraceable or evading service.” Per ABOKI, J.C.A. (P. 23, paras. A-C). (Underlining is mine for emphasis). See the case of: KANGNAAN v. KANGNAAN (2019) LPELR-46502(CA) where the Court held on ‘Whether the Court can order substituted service without an attempt at personal service’ thus “The procedure before leave for substituted service could be obtained was spelt out in Fidelis Nwadialo (Civil Procedure in Nigeria) 2nd Ed. (2000) at page 258 thus – “A plaintiff can only resort to substituted service by the order of Court for which he must, first of all apply. All the rules provide for this mode of service. By the provision, where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order substituted service.” By Order 12 Rule 5(4) of the Plateau State (Civil Procedure) Rules, the Court can either after or without any attempt at personal service, where it appears to it that for any reason personal service cannot be conveniently effected, order substituted service of an Originating Process. I cannot shy away from the fact that the rules of the Plateau State High Court like most other Courts permit the Court to make order for substituted service even where no attempt for personal service had been made, where the Court has reason to believe that personal service will not be convenient or near impossible. However, in practice Courts do not readily grant an order for substituted service where an attempt for personal service has not been made to avoid abuse of the provision of the rules or discourage personal service as provided, which may actually result to the hearing of a matter without serving the other party. In the instant case, in the affidavit in support of the motion Ex-parte, it was deposed that after the Appellant left her matrimonial house she relocated to Abuja from her parent’s house to an unknown address. With that deposition, the Respondent was in the dark of the Appellant’s address and so had no other means of getting the Appellant served but by substituted means. With the material fact before the learned trial Judge, I hold the trial Court acted in consonance with Order 12 Rule 5 of the Plateau State High Court Rules when it ordered for substituted service even though there was no prior attempt for personal service.” Per UCHECHUKWU ONYEMENAM, JCA (Pp 11 – 13 Paras E – C).

 

  1. HEARING NOTICE IS NOT AN ORIGINATING PROCESS THAT ONLY A BAILIFF OF COURT SHALL SERVE:

In my humble view, hearing notice cannot be regarded as an originating court process rather it is only a notice of the hearing of the suit or proceedings notifying the other party of the proceedings or suit in court or in other words ‘a court process’. Therefore, the interpretation of hearing notice being an originating court process cannot be read into the meaning of ‘hearing notice’ so as to compel service of same by a bailiff of court. I humbly submit that it is trite law as held by our Nigerian Courts that “The main object of interpretation of statute is to discover the intention of the lawmaker, which is deducible from the language used. And so where the language of a statute is plain, clear and unambiguous, the duty of the Court is to interpret the language in its strict grammatical meaning to convey the intention of the lawmaker. See generally Chief Awolowo v. Alhaji Shagari (1979) 6 SC 51; (1979) 6-9 SC (Reprint) 37; Ojokolobo v. Alamu (1987) 5 NWLR (Pt. 61) 377; PDP v. INEC (1999) 7 SC (Pt.II) 30; (1999) 11 NWLR (Pt.626) 200; Adewunmi v. A.G. Ekiti State (2002) 1 SC 47; (2002) 2 NWLR 106 (Pt.751) 474. The Court has no jurisdiction or competence to go outside the statute in search of interpretation convenient to it. Similarly, the Court cannot interpret a statute to suit its purpose because the statute does not belong to it. If at all, anybody or institution can or should claim ownership of a statute, that body or institution is the Legislature which by virtue of its Constitutional right to make and amend, can claim ownership of it.”

 

 

  1. ‘MISCARRIAGE OF JUSTICE’ AND ‘SATISFACTION OF COURT’: TWO SIAMESE TWIN DETERMINING AND OR DECIDING FACTORS IN RESOLVING WHETHER HEARING NOTICE HAS BEEN VALIDLY SERVED PERSONALLY ON A PARTY BY A COUNSEL OR LITIGANT:

For instance, Order 6 of the Federal High Court of Nigeria (Civil Procedure) Rules, 2019, for ‘service of Court Process’ and who is to serve same; and under this Rule, requires that a court process which requires ‘service’ shall be filed (and by interpretation of the Rules includes ‘hearing notice’). Whereas, by Order 51 of the Rules, such non-compliance as to manner, form, or in any other respect shall be treated as an irregularity and such will not nullify the proceeding or Order or Judgment made by the Court. Therefore, In my humble view, what should guide a court of law is the evidence to its satisfaction that the hearing notice has been served on the deserving party or counsel and what should guide an appellate court and or any court of law in regard to issues brought before it regarding service of hearing notice is whether ‘the Appellant was aware or had the actual knowledge of the suit and or proceedings-hence, whether there was a miscarriage of justice in his case’ and not ‘whether the hearing notice was served in a particular form or manner or not’. This is what I would term as ‘fairness’ in the real sense of the matter. In the case of F.R.N V FANIKAYODE (2010) 14 NWLR (pt.1214) 481 at 503, paras. F-G their Law Lords opined that: “While judges must refrain from attempting to make laws from the bench, they must not shy away from adopting a proactive approach to the interpretation of the law. Judicial officers must not place on themselves, disabilities not imposed by law”. Also, it was held in the case of YAKASAI vs. HARUNA & ANOR. (2021)LCN/15885(CA) by the Court of Appeal thus ‘It is settled law that a party who, being aware that a matter is fixed for hearing, voluntarily chooses to stay away from Court on the date and the Court proceeds with the hearing in his absence, cannot turn round to assert lack of fair hearing – *Ezechukwu v. Onwuka (2016) LPELR-26055 (SC); Eze Vs. Federal Republic of Nigeria (2017) LPELR-42097 (SC); Darma v. EcoBank Plc (2017) LPELR-41663 (SC).’. The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel – ‘Newswatch Communication Ltd. v. Atta (2006) (Pt.318) 580 at 600-601.’. In ‘Okocha v. Herwa Ltd. (2000) 15 NWLR (Pt.690) 249 at 258 G-H; Oguntade, JCA, (as he then was)’ made the point thus: “It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”. In the said Ezechukwu v. Onwuka referred by the Court of Appeal of Nigeria (supra) also cited as ‘Ezechukwu & Anor. v. I.O.C. Onwuka (2016) 2 NWLR (Pt. 963) 151’, the Supreme Court of Nigeria held thus ‘”For emphasis, it needs be said that since the trial Court had ascertained that the hearing notice was properly served on the Appellants, there was no extra requirement that fresh hearing notice should be served on the appellants on every adjourned date as the Court was satisfied that the opportunity to be heard was afforded the appellants and their keeping away was their choice and the repercussions they must live with and it does not lie in their mouth that the Court below ought to have allowed their appeal as they were not served on each adjourned date thereafter.” Per PETER-ODILI, J.S.C. (P. 32, Paras. C-E).

Respectfully, the reason behind the Supreme Court’s decision in the Ezechukwu’s (supra) is not far-fetched. It is rooted in the position of the law that a party who deliberately absconds from litigation cannot be heard on lack of fair hearing as the court has given adequate opportunity to the party to be heard. The apex court in that case i.e. Ezechukwu’s (supra) held as follows;

 “It is certainly not open to a litigant that had been served hearing notice commanding him to proceed to Court to defend the case instituted against him and who, the hearing notice apart, is otherwise aware of the proceedings taken against him by another, to assert a breach of his right to fair hearing if eventually a decision is given against him. Section 36(1) of the 1999 Constitution (as amended) which enshrines the doctrine of fair hearing the appellants’ wave with gusto does not avail them. The section only provides that before any decision is taken by a Court of law against them, the appellants’ be given the opportunity to present their side of the matter. The appellants who chose to voluntarily stay away from the Court after that opportunity had been extended to them are not covered by the Section of the Constitution they now assert provides for them. So be it. See Okafor V Ag Anambra (1991) 6 NWLR 659; (1991) LPELR-2414 (sc) and Baba v N.C.A.T.C. (1991) 7 SC (Pt.1) 58, (1991) LPELR-692 (SC).” Per MUHAMMAD, J.S.C. (Pp. 21-22, Paras. C-B)’. Furthermore, in R V Askew, (1768) 98 ER 139 at 141, Lord Mansfield stated that the exercise of discretion was not confined to the courts and it imports a duty on the person exercising it to be ‘fair, candid and unprejudiced, not arbitrary, capricious, or biased, much less warped by resentment or personal dislike’. See: Ese Malemi (op. cit.) at page 375. Also, Lord Halsbury LC in the case of Sharp v Wakefield (1943) 2 All ER 560 at 564, stated the law thus ‘Discretion’ means when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular. And it must be exercised with the limit, to which an honest man competent to the discharge of his office ought to confine himself: Rooke’s Case (1509) 77 ER 209. Wilson v Rastall (1792) 100 ER 1283’. See: Ese Malemi (op.cit.) at page 376. Therefore, in my humble view, even though the allotment and or allocation of a specific time to a witness or Counsel or litigant and the conduct of proceedings in a court is at the discretion of the Judge presiding over the proceedings, it is my humble submission that such a judicial discretion must be exercised fairly, reasonably and according to law i.e. judicially and judiciously. See: Saraki v Kotoye (1990) 4 NWLR (pt. 143), p 144, SC. Furthermore, the word ‘miscarriage of justice’ is not a music term that a party or counsel sings to a trial or appellate court. The allegation against the court or judge must be proved to be ‘perverse’ leading to ‘miscarriage of justice’! The Supreme Court of Nigeria has held in the case of Mmamman v FRN (2013) 6 NWLR (pt. 1351) 569 SC, where M.D. Muhammad J.S.C. at page 585, paras. E-F on what amounts to perverse finding of a court thus ‘A court’s finding is said to be perverse if the finding draws wrong influence from the evidence before it or where same has occasioned miscarriage of justice. (Ukpabi v State (2004) 11 NWLR (pt. 884) 439, SC and Aiguokhian v State (2004) 7 NWLR (pt. 873) 565 SC.’ Miscarriage of justice’ was ably defined by the appellate Court thus “Miscarriage of justice’ means, ‘justice failure.’ It is justice that finds itself in a wrong carriage. ‘It is therefore injustice. It occurs when the court fails or refuses its rules, facts or law” OGUNTAYO V ADOLAJA (2009) 15 NWLR (Prt. 1163) P. 160.  Furthermore, on what constitutes ‘miscarriage of justice’, the court held that ‘there is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is a failure on the part of the court to do justice. That is to say, the court did what amounts to injustice.’. See: Oladina Sanusi v Oreitan Ameyogun (1992) 4 NWLR 9pt. 237), pg. 527; Harrison Okonkwo & anor v Godwin Udoh (1997) 9 NWLR (pt. 519), p. 16; Ojo v O. Anibire & Ors. (2004) 10 NWLR (pt. 882) p.571. furthermore, See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at 701 SC. Furthermore, Eso JSC, in the case of Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at 709 SC. held thus ‘Once an appellant shows that there is an infringement of the principle of natural justice against him, he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case, where one, after showing injury would need to proceed further to show damages. The injury… is proof positive of the damage’. See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at p. 721. Hence, Lord Hewart in R V Sussex Justices, Ex parte (1924) 1 KB 256 at 259, McCarthy has stated it thus ‘Justice should not only be done but should be manifestly and undoubtedly be seen to be done’. Also, see: Onakoya v FRN (2002) 11 NWLR 9pt. 779), p. 595, SC. Furthermore, in the case of ‘SHOLA v OFILI & ORS. (2020) LCN/15558(CA)’ the Court of Appeal of Nigeria held thus ‘that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seized of the proceedings of the Court.’ See:  Otapo V. Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson V. AG of Bendel State (1985) 1 NWLR (Pt.4) 572; A. U. Amadi V. Thomas Aplin & Co. Ltd. (1972) ALL NLR 413; Mohammed Oladapo Ojengbede V. M. O. Esan & Anor. (2001) 18 NWLR (Pt.746) 771. The Court in Shola v Ofili (supra) further held on the principles underlying the right to ‘fair hearing’ thus ‘Now, the observance of the right to fair hearing of the citizen in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the appellate Court. Thus, it is the law that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case since it is primarily a matter of fact. Therefore, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See: Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also News Watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt.993) 144.’.

 

  1. COURT TO ORDER COUNSEL OR LITIGANT TO FILE VALID WHATSAPP NUMBER, FACEBOOK IDENTITY OR NAME AND EMAIL ADDRESSES, ALONG WITH THEIR COURT PROCESSES, WHICH SHALL BE AN ACCEPTABLE MEANS OF COMMUNICATION BETWEEN COUNSEL AND COUNSEL AND LITIGANTS AS WELL COURT AND COUNSEL OR LITIGANT:

This in my humble view, would ensure that a counsel or litigant can be served through any of the means of communication submitted to the court. Also, in my humble view, a counsel or litigant can be served hearing notice through his Whatsapp number, Facebook identity or name and email addresses, etc., which he has filed and or submitted to the court in his court process or any of his court processes. I take guide from the decision of the Court of Appeal of Nigeria, held in the case of ECOBANK v. RUBICON ENERGY SERVICES LTD & ORS, while deciding on the ‘Position of the law as regards the use of email address as a means of serving Court process; whether the other party must be notified of a change of email address’, laid the principles thus “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:

  1. 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.

  1. 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.
  2. 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:

  1. That sometime in early 2017, the name of the firm representing the Appellant was changed from B. Ayorinde & Co to B.A. Law LLP.
  2. 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
  3. That upon changing the firm email we stopped receiving emails sent to info@ayorinde-law.org
  4. That hearing notice of matter at the Court of Appeal being handed by our firm are sent to us via email.
  5. 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.
  6. That we were not aware of the proceedings of the Honourable Court on 9th of June, 2017 wherein the Appeal was dismissed.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.”.

 

  1. CERTIFICATE OF SERVICE OR AFFIDAVIT OF SERVICE DEPOSED BY THE ASSERTING PARTY OR COUNSEL: AN ESSENTIAL FACTOR IN DETERMINING WHETHER A HEARING NOTICE HAS BEEN VALIDLY SERVED ON A PARTY OR OTHER LITIGANT OR PERSON.

This is to provide such an affidavit or deposition therein stated as ‘evidence’ for such service of the hearing notice. In the case of Tukur v Uba (2013)4 NWLR (pt. 1343)90 S.C. thus ‘It is already a settled law that an affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is not challenged or controverted is deemed admitted. (Underlining is ours for emphasis). See: Ajomale v Yaduat & Anor (No. 2) (1991) 5, NWLR (pt.191) 226 at 282-283, (1991) 5 SCNJ 178, Magnusson v Koiki (1993) 12 SCNJ 114;(1993) 9 NWLR (pt.317) 287, Henry Stephens Engineering Ltd. v Yakubu (Nig.) Ltd. (2009)6, SCM 90 at 99; (2009) 10 NWLR (pt. 1149) 416’. Also, in the case of ‘Zahkem NIG. Ltd v. Art in Science (2022) Part 1808’, it was held that exhibits attached to an affidavit form part of the affidavit. This is more so, also, because an affidavit constitutes an evidence on its own. In the case of NIGERIAN AIR FORCE & ORS v. CHIA & ORS (2021) LPELR-53293(CA) the Court held thus “…The trial Judge was not given the chance to pronounce on the validity of the documents annexed to the affidavit in support. Suffice to say that the trial Judge used the said Exhibits in arriving at his decision that the houses belonging to the Respondents were destroyed and some of the members of the community were beaten and dehumanized. Having relied on them without any objection, the Appellants have a duty to show that the documents were illegally before the Court. The matter was fought on affidavit evidence so there was no application to tender the document in evidence or an opportunity to oppose its admissibility in evidence. Generally, the law is that documents attached to the affidavit are part of the affidavit, see UNIVERSITY OF ILORIN V OYOLANA (SUPRA) and undoubtedly, copies of the documents are usually attached and the Court considers them as the affidavit itself not as documents that are detachable from the affidavit. Authorities abound wherein superior Courts held that documents attached to an affidavit becomes part of the affidavit see the case of EZECHUKWU & ANOR V I.O.C ONWUKA (2016) LPELR- 26055 (SC) where the apex Court held thusly: “However, it is also trite that all documents attached to an affidavit such as Exhibit R form part of the affidavit in question and it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act 1990, I rely on C.R.P.D.I.C. Ltd v. Obongh (2001) FWLR (Pt.54) 353.” Per PETER-ODILI, J.S.C See also the following MBORA V. EKPENYONG & ANOR (2019) LPELR-48169 (CA); ABAH V. UBN PLC & ORS (2015) LPELR-24758(CA); MINAJ HOLDINGS LTD V. AMCON (2015) LPELR-24650(CA); HWANDE V. BIEM & ORS (2019) LPELR-46868(CA). The argument of the Appellants is therefore misconceived and untenable because once the affidavit is properly before the Court, the Court will use it in arriving at a decision as was done in this case.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 56 – 58 Paras F – D)’.

 

  1. A JUDGE IS EMPOWERED TO BE IN CHARGE OF PROCEEDINGS IN HIS COURT THAT HE PRESIDES UPON:

For instance, section: 6(6)(a) and (b) of the Constitution of the fFderal Republic of Nigeria, 1999 (as amended) empowers court of law (or court of superior record) with ‘inherent powers’ and sanctions of a court of law. The said section 6(6)(a) and (b) of the Constitution provides thus ‘(6) The judicial powers vested in accordance with the foregoing provisions of this section— (a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;’. Furthermore, on the inherent power of a Court of law, for instance: In the case of Covakent Oil & Gas Services Ltd. & Anor. V Ecobank (Nig.) PLC & Anor, the court defined the meaning of ‘inherent power of court’ thus ‘Now, inherent powers of the Court are those innate powers invoked by the Court to ensure the smooth running of the machinery of justice in order to curtail abuse, and stamp its authority where necessary. They have constitutional backing in Section 6(6)(a) of the 1999 Constitution, as amended. They are what one may call second nature powers. See: Arubo v Aiyeleru & and 5 others supra’.  

 

  1. A JUDGE IS TO CONDUCT PROCEEDINGS IN SUCH A WAY THAT HE DOES NOT EXERCISE HIS PROCEEDINGS IN A WAY THAT LEADS TO MISCARRIAGE OF JUSTICE OR BEING REASONABLY SEEN AS BEING BIASED AGAINST OR TOWARDS ONE SIDE OF THE PARTIES TO THE SUIT IN REGARD TO SERVICE OF HEARING NOTICE AND DENIAL OF FAIRNESS THAT THE HEARING OBJECTIVELY:

Whereas, ‘a Judge is not to be a Judge in his own cause (i.e. known in the Latim maxim as ‘nemo judex in causa sua’)’. The word ‘bias’ in its ordinary meaning, is an opinion or feeling in favour of one side in a dispute or argument. It is leaning or acting in favour of one side in a dispute, resulting in the likelihood that the court so influenced will be unable to hold an even scale. Bias means slant, personal inclination, preference, or one-side inclination. It also means a pre-conceived opinion, a pre- disposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias creates a condition of mind which sways judgement and render open conviction. Bias creates a condition of mind which sways judgment and renders a judge unable to exercise his functions impartially in a particular case. In the determination of a likelihood of bias, the test is not subjective but objective. In other words, it is from the point of view of a reasonable man who happened to be present in the court and watched the proceedings. See: THE NIGERIAN CONSITUTIONAL LAW, ESE MALEMI, Princeton Publishing Co. Lagos, First Edition, 2006, pages: 276 and 277. Therefore, one of the elements of a fair hearing is as guaranteed in section 36(6)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thus which is the right to examine in person or by his legal practitioner the witnesses called by the prosecution. This includes the right to confront his accusers and their witnesses and the opportunity to contradict their evidence. See: Ese Malemi (op.cit.) at page 298. Furthermore, in my humbly submission, the abuse of discretionary powers by such Judge cannot be said to stand to protect ‘fairness’ in a hearing or trial rather it turns such hearing or trial up-side down prejudicially as against the party or litigant or counsel entitled to same! In R V Askew, (1768) 98 ER 139 at 141, Lord Mansfield stated that the exercise of discretion was not confined to the courts and it imports a duty on the person exercising it to be ‘fair, candid and unprejudiced, not arbitrary, capricious, or biased, much less warped by resentment or personal dislike’. See: Ese Malemi (op. cit.) at page 375. Also, Lord Halsbury LC in the case of Sharp v Wakefield (1943) 2 All ER 560 at 564, stated the law thus ‘Discretion’ means when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular. And it must be exercised with the limit, to which an honest man competent to the discharge of his office ought to confine himself: Rooke’s Case (1509) 77 ER 209. Wilson v Rastall (1792) 100 ER 1283’. See: Ese Malemi (op.cit.) at page 376. Therefore, in my humble view, even though the allotment and or allocation of a specific time to a witness or Counsel or litigant and the conduct of proceedings in a court is at the discretion of the Judge presiding over the proceedings, it is my humble submission that such a judicial discretion must be exercised fairly, reasonably and according to law i.e. judicially and judiciously. See: Saraki v Kotoye (1990) 4 NWLR (pt. 143), p 144, SC. Furthermore, The Supreme Court of Nigeria has held in the case of Mmamman v FRN (2013) 6 NWLR (pt. 1351) 569 SC, where M.D. Muhammad J.S.C. at page 585, paras. E-F on what amounts to perverse finding of a court thus ‘A court’s finding is said to be perverse if the finding draws wrong influence from the evidence before it or where same has occasioned miscarriage of justice. (Ukpabi v State (2004) 11 NWLR (pt. 884) 439, SC and Aiguokhian v State (2004) 7 NWLR (pt. 873) 565 SC.’ Miscarriage of justice’ was ably defined by the appellate Court thus “Miscarriage of justice’ means, ‘justice failure.’ It is justice that finds itself in a wrong carriage. ‘It is therefore injustice. It occurs when the court fails or refuses its rules, facts or law” OGUNTAYO V ADOLAJA (2009) 15 NWLR (Prt. 1163) P. 160.  Furthermore, on what constitutes ‘miscarriage of justice’, the court held that ‘there is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is a failure on the part of the court to do justice. That is to say, the court did what amounts to injustice.’. See: Oladina Sanusi v Oreitan Ameyogun (1992) 4 NWLR 9pt. 237), pg. 527; Harrison Okonkwo & anor v Godwin Udoh (1997) 9 NWLR (pt. 519), p. 16; Ojo v O. Anibire & Ors. (2004) 10 NWLR (pt. 882) p.571. furthermore, See: Adigun v A.G. Oyo State (1987)1 NWLR pt. 53, p. 678 at 701 SC.

 

  1. A PARTY OR LITIGANT OR COUNSEL SERVED HEARING NOTICE THROUGH THE ABOVE RECOMMENDED MEANS OF SERVICE BUT WHO CHOOSES TO BE ABSENT FROM SUCH PROCEEDINGS HAS INDEED WAIVED HIS RIGHT TO FAIR HEARING AND CANNOT BE HEARD ACCUSING DENIAL OF FAIR HEARING:  

For instance, in the case of YAKASAI vs. HARUNA & ANOR.(2021)LCN/15885(CA)’ the Court of Appeal of Nigeria, held on this issue under this subheading or subtitle especially as to ‘Whether it is the duty of a Court to compel a party to exercise his right to fair hearing; Whether it is unethical for a Counsel to misrepresent the record of Court in order to win a case for his client(Issue is mine)’ and laid down the following ‘PRINCIPLE’ thus

“The complaint of the Appellant under this issue for determination is that, in the course of the proceedings, the lower Court conducted trial on a date that the matter was fixed for mention and proceeded to admit documentary evidence of the first Respondent on that day in the absence of the Appellant and his Counsel, and thus breached right of the Appellant to fair hearing. Counsel to the first Respondent countered that the matter was fixed for hearing on the day in question, and not for mention, and that the fixture was done on the prior adjourned date in the presence of the Appellant and his Counsel, and that the Appellant and his Counsel chose to absent themselves from Court without any explanation on the hearing date.

The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the enure judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua ‘Emerah v. Chiekwe (1996) 7 NWLR (Pt.462) 536; Okeke v. Nwokoye (1999) 13 NWLR (Pt.635) 495.’

​Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule – ‘Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587; Gakus v. Jos International Breweries Ltd. (1991) 6 NWLR (Pt.199) 614; Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628.’

​The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding, had in fact been given an opportunity of being heard. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside –  ‘Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419; Olumesan v. Ogundepo (supra); Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt.730) 403; Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt.1173) 384.’

This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – *Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22 at 35; Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231; Olufeagba v. Abdul-Raheem (supra).* It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. Hence, fair hearing is not only a common law right but also a constitutional right – ‘Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Agip (Nig.) Ltd. v. Agip Petroli International & Ors. (2010) 5 NWLR (Pt.1187) 348; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236) 175.’

​The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – ‘Independent National Electoral Commission v. Musa (2003) 3 NWLR (Pt.806) 72; Dantata v. Mohammed (2012) 8 (Pt.1302) 366; National Films & Video Censors Board v. Adegboyega (2012) 10 NWLR (Pt.1307) 45.’

​The records of appeal confirm the position as adumbrated by the Counsel to the first Respondent. The records show that it was on the 27th of May, 2015 that the lower Court continued hearing in the absence of the Appellant and of his Counsel and admitted all the documentary evidence of the first Respondent. The records show that two adjournment prior to that day, on the 14th of April, 2015, when the matter came up before the lower Court, the first Respondent and his Counsel were in Court as well as the Appellant and his Counsel and that the second Respondent was also in attendance, but his Counsel was absent and that the matter was adjourned at the instance of the second Respondent to the 28th of April, 2015 for continuation of hearing.

The records show that on the 28th of April, 2015, all the parties and their Counsel were present in Court and that the hearing in the matter could not proceed and the matter was again adjourned at the instance of Counsel to the second Respondent to the 27th of May, 2015 for hearing. The records show that on the 27th of May, 2015, only the first Respondent and his Counsel were in Court. The Appellant and his Counsel as well as the second Respondent and his Counsel were absent from Court without any explanation. The lower Court proceeded with the hearing fixed for the day and it, in the process, admitted the documentary evidence of the first Respondent.

​The assertion of Counsel to the Appellant that the matter was for mention on the date in question, and not for hearing, was a blatant misrepresentation of the contents of the records of appeal and Counsel could only have done so in the hope of misleading this Court. This was most unprofessional. It is not the duty of a counsel to win at all costs and by all means, and seeking to do so by misrepresenting the contents of the records of appeal is ignoble, unethical, reprehensible and condemnable – ‘Shola v. State (2020) 8 NWLR (Pt.1727) 530.’ In ‘Isijola v. Olusoga (2015) LPELR-41788 (CA),’ this Court opined thus: “Starting with the contention relating to contradictions alleged in the evidence of DW1, DW3 and DW4. I do not find any, as claimed by the Appellant’s learned counsel. I must say in agreement with the Respondent’s learned counsel that the Appellant’s counsel abridged the evidence of DW1, contrary to that reproduced by Respondent’s counsel. A Court of law is bound by the record of proceedings. It is unethical so to misquote a witness or alter or seek to misrepresent the proceedings or record of a Court. The solemn duty of a counsel does not include as is commonly referred to ‘winning a case for his client at all costs’. No, the role of the lawyer nay counsel is to ensure that justice is done. This cannot be done by misrepresentation. The duty is owed to justice and not merely to clients.”

It is settled law that a party who, being aware that a matter is fixed for hearing, voluntarily chooses to stay away from Court on the date and the Court proceeds with the hearing in his absence, cannot turn round to assert lack of fair hearing – ‘Ezechukwu v. Onwuka (2016) LPELR-26055 (SC); Eze Vs. Federal Republic of Nigeria (2017) LPELR-42097 (SC); Darma v. EcoBank Plc (2017) LPELR-41663 (SC).’ The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel – ‘Newswatch Communication Ltd. v. Atta (2006) (Pt.318) 580 at 600-601.’ In ‘Okocha v. Herwa Ltd. (2000) 15 NWLR (Pt.690) 249 at 258 G-H; Oguntade, JCA, (as he then was)’ made the point thus: “It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”. The complaint of the Appellant on breach of his right to fair hearing was baseless and the second issue for determination is resolved in favour of the first Respondent.” ‘Per ABIRU, JCA’. Also, in the case of C.B.N. V Interstella Comm. Ltd. (2018)7 NWLR (pt. 1618)294 SC, pg. 326, paras. C-G; 356, paras. 356; pg. 357, paras. A, Ratio 30 thus ‘By the doctrine of waiver, a person who is entitled to a benefit or who has the choice of two benefits and is fully aware of his right to such benefits, is entitled to voluntary neglect to exercise his right. Thus, every person has the right to renounce or waive his personal right under a statute. There is no compulsion in exercising such right. This is more so especially where the right is not for the public benefit. In this case, the right under section 97 of the Sheriffs and Civil Process Act, which the appellant claimed it was entitled was a personal right that could be waived. (Uzodinma v Udenwa (2004) 1 NWLR (pt. 854) 303; Mobil Producing (Nig.) UnLtd. V LASEPA (2002) 18 NWLR (798) 1; Bello v A.G. Oyo State (1986) 5 NWLR (pt. 45) 828 referred to.

 

  1. FAILURE OF A LAWYER TO APPEAR IN COURT AT THE ADJOURNED DATE FOR THE PROCEEDINGS AFTER BEING SERVED HEARING NOTICE (EVEN BY MEANS RECOMMENDED BY THIS PAPER) IS AN EXCEPTION TO THE RULES THAT ‘ERROR OF A COUNSEL SHOULD NOT BE VISITED UPON HIS LITIGANT’:

Such act would in my humble view, amount to waiver of such right to fair hearing. In the case of Ariori v. Elemo (1983) 1 SC 13 @ 18, Idigbe, JSC, defined “waiver” thus: “By way of a general definition, waiver- the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.” Tobi, JCA, (as he then was) in the case of Carribean Trad. & Fidelity Corp. v. NNPC (1992) 7 NWLR (252) 161 @ 185, enunciated on the concept of waiver when he said: “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not do so at all. But once his conduct shows the trend, a Court of law will hold that he has waived his right.”. Also (on ‘waiver of personal right’) see the case of C.B.N. V Interstella Comm. Ltd.  (supra).  Furthermore, I humbly submit that a counsel or litigant served with a hearing notice by other means as recommended by this paper but failed and or refused and or neglected to appear in court at the adjourned date for the proceedings after being served hearing notice cannot accuse the Court for denying him fear hearing, as fear hearing is not for an indolent party to a suit rather, it is for the vigilant. I humbly submit with authority of the decision of the Court of Appeal in the case of ‘First Alstate Sec. Ltd. V Adesoye H. Ltd. (2013) 16 NWLR (pt. 1381) 470 C.A.. where Ikyeth, J.C.A. held at pages: 498-499, at paragraphs E-C thus ‘The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel’. Most importantly, in the case of Ukachukwu v P.D.P. (2014)17 NWLR (pt. 1435)134,  Kekere Ekun JSC, (delivering the leading judgment) held at page 171, paras. D-G on fair hearing thus ‘The view expressed by Tobi, JSC in Inakoju v Adeleke (2007) 4 NWLR (pt. 1025)423 at 621-622, F-A is quite apposite to the fact of this case, His Lordship opined thus: ‘ I said it in the past and I will say it again that the duty of the court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuse or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing… after all, there is the adage that the best the owner of the horse can do is to take it to the water, it cannot force it to drink the water, he cannot force it to drink the water. The horse is unwilling to sip. That ends the matter. The horse will not blame anybody for death arising from the lack of water or dehydrate’. (italics supplied)’. (Underlining is the Appellant’s for emphasis). So, in this instance, I humbly submit that a court will visit the error of the counsel representing the concerned litigant on the said litigant. I also humbly submit that the court will also visit the errors committed by counsel on his client-litigant-, where such error is fundamental as it is in this case of failure to appear when served hearing notice by means or modes that I have recommended in this paper. I humbly refer to the case of: Okafor v Nweke (2007)10 NWLR (0t. 1043) pg. 521, University of Lagos v Aigoro (1985)1 NWLR (pt.1) 143 and the case of Ports & Marine Services Ltd. V Umarco (Nig.) Ltd. & Ords (2016) LRELR-41487 (CA) PP. 15-17, PARAS. D-C). For instance, in the case of Ports & Marine Services Ltd. V Umarco (Nig.) Ltd. & Ords (2016) LRELR-41487 (CA) PP. 15-17, PARAS. D-C). The court held on exception to the position that mistake of counsel should not be visited on the client thus ‘While it is the position of the law as settled in a plethora of cases that the sins of counsel should not be visited on the litigant, this rule is not without exceptions. Where was the Applicant all along? Besides, if it is always the case that the sins of counsel should not be visited on the litigant, then it will be that the Courts will be encouraging tardiness of counsel and delay in the prosecution of cases. Consequently, no infraction will be penalized. Mistake of counsel is not a magic wand and the courts will never condone lack of diligence on the part of litigants. A litigant equally has the responsibility to be vigilant in respect of its matters before the court and that it is not guilty of inordinate delay. See: the case of Prudent Bank PLC & Ors. V Obadaki (2010) LPELR- 9200 (CA). In the case of Ezechukwu v Onwuka (2005) LPELR 6115 (CA); 2 NWLR (PT. 963) 151, the Court held as follows ‘ It should never be thought by counsel that the defence or excuse that some lapses complained of in a matter is due to ‘mistake or inadvertence of counsel’ is a magic wand which once waived, a Court of justice must overlook such lapses. It must be proved that it is. It has not been proved herein. It ought to be understood that our Courts do not ever condone inexcusable delay or lack of diligence on the part of litigants and counsel. The Supreme Court has been careful in applying the principle that the Courts do not ordinarily punish a litigant for the mistake or inadvertence of counsel. This is evident from the manner the Honourable Justice have applied it. Hear Nnaemeka-Agu JSC., in Iroegbu v Okwordu (1990) 6 NWLR (pt. 159) 643 at 669. ‘I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistake of his counsel … But in my opinion, the Courts will not regard this as a panacea in all cases. The courts must be satisfied not only that the allegation of the fault of counsel is true and genuine but also that it is availing having regard to the circumstances of the particular case’. Per Nimpar, J.C.A. (Underlining is mine for emphasis). See also Odua Invest. Co. Ltd. v. Talabi (1997) 10 NWLR (523) 1, (1997) 7 SCNJ 600; Auto Import Export v. Adebayo (2005) 19 NWLR (959) 44; Eze v. Okechukwu (2002) 12 SC (Pt.II) 103.

 

 

  1. THE UNPROFESSIONAL ATTITUDES OF SOME OF THE COURT’S BAILIFF IN THE SERVICE OF HEARING NOTICE IN A SUIT: A GROUND FOR THE ABOVE RECOMMENDATIONS:

With due respect, there have been occasioned (even from my personal experiences with some of the court bailiffs) where some of the bailiffs of court have been accused of: not serving hearing notice on a deserving party or counsel despite being mobilized; the bailiff would not be able to serve the hearing notice but would not inform the counsel or litigant who mobilized him to serve such hearing notice (sometimes, would just file an affidavit of non-service of the hearing notice in court without the notice or knowledge of the litigant or counsel who mobilized or instructed him to serve or he would not even depose to any such affidavit or non-service of the hearing notice; excessive charge or billing for mobilization to serve the hearing notice beyond what such litigant or counsel could afford; among others. All the above challenges necessitated a more proactive development in the service of hearing notice towards an improvement of the administration of justice system in Nigeria.

  1. SERVICE OF HEARING NOTICE BY COURT’S BAILIFF CONTRACTUAL BETWEEN THE BAILIFF AND THE COUNSEL OR LITIGANT.
  1. COUNSEL OR LITIGANT WHO MOBILISED A COURT BAILIFF ON THE CONTRACTUAL BASIS IS ENTITLED TO FEEDBACK ON THE SERVICE AS WELL AS A PHOTOCOPY OF THE PROOF OF SERVICE (ONLY THE AFFIDAVIT OF SERVICE IS AUTOMATICALLY A COURT PROCESS):

In my Humble submission, Counsel or litigant who mobilises a court bailiff to serve hearing notice on his behalf (regardless of whether the hearing notice was the one issued by the court or not) is on ‘a contract’ with such bailiff and on such contractual basis, is entitled to feedback on the service as well as a photocopy of the proof of service (only the affidavit of service or certificate of service of the hearing notice deposed to by the bailiff (which is different and separate from the hearing notice) is automatically a public document of a category of court process that an application for certified true copy of must be made to the court to obtain a copy of). Also, such proof of service of the hearing notice is not a public document upon service of same by the bailiff until same is filed in the court by the bailiff.

  1. USE OF BAILIFF TO SERVE HEARING NOTICE BY COUNSEL OR LITIGANT TO BE OPTIONAL AND NOT MANDATORY: THE AFFIDAVIT OF SERVICE DEPOSED TO BY THE LITIGANT OR COUNSEL WHICH SATISFIES THE COURT AS A PROVE OR TO THE EFFECT THAT SUCH HEARING NOTICE HAS TRULY BEEN SERVED ON THE DESERVING PARTY OR COUNSEL SHOULD BE SUFFICIENT FOR THE PURPOSE OF THE SERVICE OF THE HEARING NOTICE.

 

 

  1. CONCLUSION:

I humbly recommend the recommendations made in this paper to respective Chief Judge of each States of the Federation and all other courts in Nigeria, to bring those recommendations to justice as they aim to assist justice dispensation in the administration of justice system in Nigeria. To this extent too, I humbly recommend that the Heads of Courts empowered by law to make Rules and regulations guiding the courts to make practice direction (where not in place yet) mandating counsel or litigant to file along their court processes: valid Whatsapp number, Facebook identity or name and email addresses, which shall be an acceptable means of communication between counsel and counsel and litigants as well court and counsel or litigant.

Finally, it is my humble submission and belief that the above recommendations would be a great development in the administration of justice system in Nigeria since ‘service of hearing’ notice amounts to fair hearing and fulfillment of section 36(1) and (4) of the Constitution and a denial of same amounts to a nullity of any proceedings or action done or built on it. Also, justice not being a one-way traffic for only a party alone rather the interest of both litigants have to be considered in a manifest justice without fear or favour! ‘Fair hearing’ is a two-way traffic which both parties to a suit (or an originating application or trial of the present consideration) ought to enjoy or be entitled to. See: the case of MFA & ORS VS. INONGHA (2014) 4 (NWLR) (Pt. 1397) 350. So, once there is evidence that hearing notice is served on a deserving party or counsel to the satisfaction of the court, such service should be enough to enable the Court to do justice in favour of the vigilant and serious party in the case.

 

Email: hameed_ajibola@yahoo.com


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