*Says Service Of Hearing Notice Is Fundamental To Court’s Competence
The Court of Appeal, Ibadan Division has set aside its previous decision of June 9, 2017, where it 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 and has now allowed an appeal filed by Ecobank Nigeria Plc to be heard.
The appellate court justices, Presiding Justice Onyekachi Aja Otisi, 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.
When the appeal was dismissed, Ecobank in dissatisfaction, had through its counsel, 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, arguing that the appellant did not receive any hearing notice that the matter was 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 and had 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 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), had argued that the appellant was sufficiently served as envisaged by the rules of court, contending that the conduct of the appellant has shown that the appellant, who 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 as 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.
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