The Court of Appeal, Ibadan Division has set aside its previous decision and allowed an appeal filed by Ecobank Nigeria Plc.
The appellate court justices, Justice Onyekachi Aja Otisi (presiding), Justice Abubakar Umar and Justice Abdullahi Bayero in their unanimous decision held that without service of hearing notice on the appellant, the order made by the Court against Ecobank was a null order and must in the interest of justice be set aside.
The appellate court had, on June 9, 2017, dismissed appeal number: ca/l/812/2016 filed by Ecobank Plc against Rubicon Energy Services Limited, First Deep Water Discovery limited, Temitope Olowu and Charles Iheanacho for want of diligent prosecution.
Dissatisfied, Ecobank through its lawyer, Chief Bolaji Ayorinde SAN in its Notice of Appeal dated July 12, 2017, urged the court to set aside the order and reenlist the suit for hearing.
Ayorinde argued that the appellant did not receive any hearing notice that the hearing of the appeal has been fixed for June 9, 2017.
He submitted that the proceedings of June 9, 2017, where the order dismissing the appeal was made, was a nullity having been conducted without having a proper hearing notice served on the Appellant.
He argued that the appellant was not given a fair hearing with regards the proceedings on 9th of June 2017 in respect of which the appeal was dismissed.
He stated that sometime in 2017 the name of the law firm representing the appellant was changed from B. Ayorinde to B, A, Law LLP, as a result, the email of the firm was changed from email@example.com to firstname.lastname@example.org.
He stated that no hearing notice was sent to the Appellant’s email, which is email@example.com.
He prayed the court to determine whether the service of hearing notices for the proceedings of June 9, 2017, on the appellant can be said to be properly served.
However, lawyer to the respondent, Babajide Koku, SAN, argued that the appellant was sufficiently served as envisaged by the rules of court.
He contended that the conduct of the appellant has shown that the appellant, which failed to file its brief within time, was tardy in the prosecution of his appeal.
He submitted that by the non-filing of the appellant’s letter notifying the court of a change of its email address, the court was not notified of any change of address by the appellant in compliance with the rules of this court.
He further argued that once an appeal has been dismissed by the court for want of diligent prosecution the dismissal order cannot be set aside by the same court as the court cannot sit on appeal on its own decisions.
In his lead ruling, Justice Onyekachi Aja Otisi held that service of hearing notice on a party is fundamental to the competence of the court to hear the matter.
He stated that it would also ensure that the adverse party is given an opportunity to be heard.
Justice Otisi held that it is the service of hearing notice that confers on the Court the Jurisdiction to entertain the matter before it.
‘’Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect that goes to the root of the competence or jurisdiction of the court to entertain the matter’’
‘’If the court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings’’, he held.
On whether appellant was served with hearing notice for the proceedings of 9/6/2017 at which this appeal was dismissed, the court noted that the appellant had deposed in the affidavit that sometime in early 2017 the name of the firm was changed from B. Ayorinde & Co to B.A, Law LLP.
Justice Otisi stated that despite the receipt of the letter intimating the Registrar of the Court of Appeal of the new email address, the Registrar of the Court still sent the email for the hearing of the notice of the appeal to the old email address.
Consequently, the court held ‘’it is my finding, and I so hold that the Appellant/Applicant through its Counsel, was not properly served with hearing notice for the proceedings of 9 6/2017.