In The Supreme Court of Nigeria
Holden at Abuja on Friday, the 12th day of July, 2019
The 12th day of April, 2019
Ibrahim Tanko Muhammad
John Inyang Okoro
Paul Adamu Galinje
Uwani Musa Abba-Aji
Justices, Supreme Court SC.361/2017
Compact Mainfold And Energy Servics- — Appellant
Pazan Services Nig Ltd – Respondent
Lead Judgement Delivered By Paul Adamu Galinje
The Respondent took out a Writ of Summons against the Appellant claiming the sum of N95,399,765.28 and the sum of US$875,949.22, being the unpaid balance of money for the supply of scaffolding materials and services to the Appellant, for a project in Warri, Delta State. It also claimed the sum of N43,522,300.00, being the total cost of the unrecovered scaffolding materials and equipment in possession of the Appellant, which have been rendered unfit and unusable, due to salty water and high humidity at the project site. The Respondent claimed further, the release of its two offshore material baskets, which are still at the warehouse of the Appellant in Warri. The Appellant filed its Statement of Defence, joining issues with the Respondent. Proceedings in the suit were adjourned several times, at the instance of the Appellant. When parties reported that the settlement proposal in respect of the suit had broken down, the trial court directed parties to file Forms 17 and 18, in line with the provisions of the High Court of Lagos State (Civil Procedure) Rules, to set the suit down for Case Management Conference (CMC).
Thereafter, the Appellant informed the court about its application seeking an order of dismissal of the suit, on the ground that the Respondent had abandoned same. The court dismissed the said application and adjourned for CMC. On the date the CMC was to commence, counsel for the Appellant applied for an adjournment. CMC went on the next scheduled date and was subsequently, adjourned to 16th February, 2016. The court did not sit on this date, and the Registrar sent out hearing notices to the parties communicating the next date of 15th March, 2016 for continuation of CMC. On the said date, the Appellant and its counsel were absent from court. The Respondent applied for judgement, under Order 25 Rule 6(2)(b) of the Rules of Court. The court granted the application, and entered judgement for the Respondent.
The Appellant prayed the court to set aside the judgement, but the application was refused. Its appeal to the Court of Appeal was also dismissed, resulting in the further appeal to the Supreme Court.
ISSUES FOR DETERMINATION
The Respondent raised a Preliminary Objection, challenging the competence of the appeal on the basis that some of the grounds of appeal were a combination of both law and facts, and the Appellant failed to seek and obtain leave of court before filing same.
On the main appeal, the court adopted the following issues for determination of the appeal –
- Whether the Court of Appeal was right to hold that the Appellant was aware of the date the default judgement was entered, when hearing notice was not served on the Appellant.
- Whether the Court of Appeal was right to have upheld the default judgement entered against the Appellant, when there was no proof of service of any hearing notice on the Appellant before the trial court, as at the time the default judgement was entered.
- Whether from the material facts available in the record, the lower court came to a right decision that the default judgement was entered within the three months period of the commencement of Case Management Conference (CMC) in accordance with the provisions of the High Court of Lagos State (Civil Procedure) Rules, 2012.
Arguing the Preliminary Objection, Counsel for the Respondent posited that, some grounds of appeal relied upon by the Appellant in the Notice of Appeal were a combination of both law and facts. By the provisions of the Constitution of the Federal Republic of Nigeria, 1999, the Appellant cannot appeal as of right where the ground of appeal contain both law and facts, but must first seek and obtain the leave of court. He challenged the jurisdiction of the court to entertain the appeal.
In his submission on issues one and two in the main appeal, Counsel for the Appellant stated that he was not served with hearing notice against the proceedings of 15th March, 2016, when the default judgement was entered against the Appellant. Counsel submitted that, although electronic service is permitted under the Rules of the trial court, none was effected on the Appellant, and there was no affidavit of service before the trial court upon which the Court of Appeal could have assumed that the text message which the Registrar of court allegedly sent to the counsel’s phone, was received. He relied on the decision in ARABELLA v NAIC (2008) FWLR (Pt. 44) 1208, in support of his position that, failure of the trial court to verify service of hearing notice on the Appellant was fatal to the proceedings of court, and that the Appellant was denied fair hearing when judgement was entered against it. On the third issue, counsel submitted that, the default judgement was delivered after the expiration of the three months period provided for in Order 25 Rule 1 and 2(g) of the Rules of court. He posited that,, any proceedings or judgement after the expiration of the period for CMC is null and void, if the parties do not apply for an extension of time. In this case, there was no application for extension of time, and as such, the default judgement entered was null and void.
Opposing the submissions above, counsel argued on behalf of the Respondent, raising a preliminary point that, the issue of whether the Appellant was aware of the date the default judgement was entered, was not in contention at the Court of Appeal. The contention at the lower court was merely the mode of service of the hearing notice, by the use of short message service (SMS) to the phone numbers of counsel. In his submission on the third issue, counsel took the stance that, the CMC was commenced on 26th January, 2016 and was due to lapse on 25th April, 2016. He opined that the CMC started late, owing to numerous applications of counsel for the Appellant.
Deciding the Preliminary Objection to the competence of the appeal, the Supreme Court noted that the objection relates to some, and not all the grounds of appeal. This presupposed that some of the grounds of appeal were competent, and as such, they could sustain the appeal. On the provisions of Order 2 Rule 9(1) of the Supreme Court Rules (as amended in 2014), a Respondent who intends to rely on a Preliminary Objection to the hearing of the appeal, shall give the Appellant notice of three clear days before the hearing … The emphasis here is that, the Preliminary Objection can only be issued against the hearing of the appeal and not against a selection of grounds of appeal, which if upheld, cannot terminate the appeal in limine – KLM ROYAL DUTCH AIRLINES v ALOMA (2017) LPELR-42588(SC). Going by decided authorities, the Preliminary Objection of the Respondent is inappropriate, and same is liable to be struck out.
On issues one and two of the main appeal, the Apex Court alluded to the provisions of Order 7 Rule 13 of the High Court of Lagos State (Civil Procedure) Rules, 2012, to the effect that, after serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service describing the process served, and shall exhibit the acknowledgement of service. The court considered the essence of a hearing notice and held that, issuance of hearing notice on a party notifying him of the hearing date of matters, is very fundamental to the administration of justice. It is the service of hearing notice that confers on the court, the jurisdictional competence to entertain the matter before it. Where a matter is adjourned to a date other than the date the parties had previous notice of, the court is duty bound to notify the parties of the subsequent adjournment. It is not for the court to predicate its decision on a mere assumption that a party must have been served with court process at one stage, and that he should be aware of subsequent dates – WEMA BANK v ODULAJA (2000) FWLR (Pt. 17) 138 at 142-143; ALHAJI AUWALA DARMA v ECOBANK NIG. LTD (2017) 9 NWLR (Pt. 1571) 480 at 511.
In this case, it is on record that the parties provided their phone numbers to the registry of the trial court, for the purpose of communication between parties and the registry. It is also in evidence that, a text message stating the 15th March, 2016 as the hearing date of the matter was sent to counsel for the parties through their phone numbers. At this age of prevalence of information technology, it will be preposterous for any litigant to insist on being served with a hard copy hearing notice. Once a notice is sent to the GSM number(s) supplied by the litigants that is good and sufficient. More so, he did not deny at the earliest opportunity, that hearing notice was not served on him, but merely argued that the service was not in accordance with the rules of court. Having been properly served with hearing notice, but failed to avail itself of an opportunity to be heard, the Appellant cannot validly complain about breach of its right to fair hearing.
Regarding the third issue, their Lordships held that, Order 25 Rules 1 and 2 provide for 14 days within which the Claimant shall apply for issuance of CMC Notice, after the close of pleadings. Going by the history of the case, the Appellant mounted road blocks to the expeditious hearing and determination of the case, and frustrated the disposal of the case within the prescribed period. It follows that, the default judgement was not entered outside the three months period provided for by the Rules of court. Appeal Dismissed.
Mr. L.I.T. Erhabor with O.S. Ebhoman and Akor Dominic for the Appellant. O. Wali, SAN with S.E. Nworie for the Respondent.