Can you serve hearing notice by electronic means?

COMPACT MANIFOLD & ENERGY SERVICES LTD v. PAZAN SERVICES NIG. LTD

(2019) LPELR-49221(SC)

Principle

PRACTICE AND PROCEDURE - HEARING NOTICE

- Whether hearing notice can be served by electronic means

"May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant's learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. Hearing notice is a document or information that emanates from the registry of a Court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served hearing notice they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court he does so at his own peril. See Per RHODES-VIVOUR, JSC in DARMA v. ECOBANK (2017) LPELR-41663 (SC), Nevertheless, it is on record that the appellant was served or informed of the hearing date of 15/3/2016 via SMS. The Evidence Act has now taken notice of the technology age we are in that electronic evidence is now admissible. This was ably tackled by my learned brother, per PETER-ODILI, JSC in ENL CONSORTIUM LTD. V. SHAMBILAT SHELTER (NIG.) LTD. (2018) LPELR- 43902 (SC), when he pungently and right held: "The point has to be made that the phone call mode of service would ordinarily be of good service so long as the party is provided the notice at least 48 hours before the scheduled Court date. The regularity of service is no longer jettisoned because it was made electronically as the current rules of Court have ensured. See Order 2 Rule 4(c) of the Court of Appeal, 2013 rules." The lower Court in this case reported as COMPACT MANIFOLD & ENERGY SERVICES LTD V. PAZAN SERVICES (NIG.) LTD. (2017) LPELR-41913 (CA), Per NIMPAR, JCA, observed and I adopt and agree with him as a solid legal foundation for electronic service of hearing notice and other legal processes thus: "The essence of a hearing notice is to bring to the notice of the party that his matter will come on the date named in the notice of hearing. Can the notice be effected by other means of notification? The answer is in the affirmative. When the rules use the words hearing notice, it did not specify that it must be hardcopy. Was the judge wrong to use the electronic method of informing parties about the date of hearing? I pause here to say this is the 21st century and technology is ruling every aspect of human endeavour and therefore even Courts must be abreast of these technological advancement and be ready to absorb the aspects that will enhance the quality of justice and aid speedy determination of cases. The Courts have also moved on in that regard. Indeed, electronic service has taken root in the Nigerian legal system and it would be strange for anybody to frown at being served electronically. See CONTINENTAL SALES LTD. V. R. SHIPPING INC (2012) LPELR- 7905 (CA). I am of the view that the Court below was in order by directing that the appellant should be informed by text. The Court as a discretion to direct the notification in a particular way. Issuance of a hard copy hearing notice is not a requirement of law and failure to issue and serve same cannot offend the rule of fair hearing. See MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (Pt. 701) 552 @ 573. wherein the Court held: "It is not in all cases that the absence of it will automatically vitiate trials in the context of Section 36 of the 1999 Constitution. A hearing Notice is not therefore a mandatory judicial process that must be issued and served in all cases. The requirement is a rule of the Court not a statutory requirement. Rules of Court are to aid the Court in adjudication of cases. It is not to arm-twist the Court into becoming a robot." Per UWANI MUSA ABBA AJI, JSC (Pp 29 - 32 Paras B - E)

 

Objection on Territorial Jurisdiction - What the Defendant must prove.

 The position of the law has always been that he who asserts must prove. The usual

SAINT GOBAIN PAM S. A. v. INTERNATIONAL CONSULTANTS INCORPORATED

(2015) LPELR-24663(CA)

Principle

JURISDICTION - TERRITORIAL JURISDICTION

- Duty on a defendant who contends the territorial jurisdiction of a Court in an action founded on contract

"A defendant who contends that the forum of the trial Court is not convenient for the determination of the issue raised on the writ of Summons must show: (a) That the defendant does not reside in or carry out business within the geographical area of the Court: (b) That the cause of action did not arise within the geographical area of the Court and; (c) That the contract is not to be performed within the geographical area of the Court. The onus is on the defendant to establish all these; Arjay Limited v. Airline Management Support Ltd (supra)." Per ONYEKACHI AJA OTISI, JCA (Pp 60 - 60 Paras A - C)

Are processes attached to amended pleadings still valid in law?

 However, in the case of Gusau v. Comptroller General of Customs & Ors. [2014] LPELR-23367[CA] 18-19, the Court of Appeal held that processes attached to the original pleading which has been amended are still valid and can be relied on in determination of the suit. Ekanem, J.C.A., who read the leading judgment, held thus:

 

“I agree with counsel for the respondents that the written statement on oath is a distinct process from the statement of defence. It serves, inter alia, to support the statement of defence but it is not a part of it. This is why it is assessed and paid for distinctly. Thus, a statement of defence may be amended by order of Court and the amended statement of defence filed without the need to file an amended or fresh witness statement on oath. An amended pleading or process including a statement of defence has a retrospective effect and dates back to the date of the original process…It follows from the above that when the lower Court granted the respondents leave to amend their statement of defence and the already filed amended statement of defence was deemed as properly filed, the amended statement of defence took effect from the date of the original statement of defence and indeed took its place. Whatever was filed to support the original statement of defence is thus deemed to support the amended statement of defence from the date of the original statement of defence.”

What is required in a land dispute when one party submits a survey plan

 BOLANTA & ANOR v. TOSIN NOVEL FIRMS LTD (2020) LPELR-52507(CA)

"From the foregoing, it is clear that the parties, that is the 1st appellant, and the respondent both knew the land they were disputing its ownership or title thereto. The fact that different names were given to the parcel of land in dispute by the parties "GBEDUGBEDU OR EKUNKUN" is of no legal significance in the determination of who between the respondent and the 1st appellant has proved a better title to the said land. The conflict in the name(s) of the disputed land can easily be solved bearing in mind the principles of law espoused the case of Akiti vs Oyekunle (2005) All FWLR Pt. 776 P.570 @ 586, wherein, this Court propounded that: "It is apparent that in the instant case, that the land in dispute is known to all the parties even though it is being called by different names or described differently. The law is settled that where the identity of the land in dispute is known to the parties, the fact that different names are given to the land or area where the land is located is called by separate names, is not fatal to the case of the party claiming interest in such land. In EDJEKPO v. OSAI (2007) ALL FWLR (Pt. 361) 1617, (2007) 8 NWLR (Pt. 1037) 635 at 671 - 672 Paras H - B, the Supreme Court, per ONNOGHEN JSC held: "...it is not strange, in fact it is a common feature in a claim for title to land that parties to the dispute call the land in dispute by different names, and will always identify different landmarks as constituting the boundary features of the land. The Courts have always seen through the contrivances and determine the real issue in controversy between the parties, which is; who is the actual party entitled to be declared the owner." In the instance case and from the finding of the trial Court, the claimant produced both a survey plan and a composite plan identifying the area of the land in dispute and it is trite law that this Court will not ordinarily interfere with the findings of facts by a trial judge unless same is shown to be perverse." Furthermore, in paragraphs 10 to 12 of his Statement of Oath, the 1st appellant deposed to these facts as located on pages 171 of the record of appeal, as follows: "10. That I know as a fact that I hired a heavy duty machine to bulldozer a portion of the land sold to me by the 2nd defendant's family. 11. That I know as a fact that the driver of the heavy duty machine reported to me that while he and his staff were bulldozing the land they were challenged by one Elder J.A. Esan to stop work claiming that the land belongs to a company whose name is Tosin Novel Firms Nig. Ltd. 12. That I know as a fact that the land that was bulldozed belongs to me and not to Tosin Novel Firms Nig. Ltd or any one whatsoever." By the foregoing depositions of the 1st appellant, it is not in doubt that he knew the land in dispute was sold to the respondent and also to him. This parcel of land in dispute was well-known to the respondent and the 1st appellant. I am in full agreement with the learned judge of the lower Court when he held as recorded on pages 420 - 421 of the printed record of appeal thus: "I seem to agree with the submission of Toyin Oladipo Esq., that the claimant and defendants are talking about the same piece of land and it does not matter whatsoever name anybody decides to give to or call the land in the event of dispute. I also share his view that there is no paragraph in the 2nd defendant's statements on oath where the location of Gbedugbedu land is given as distinct from the land that the defendants now call or refer to as Ekunkun land. For clarity, paragraph 33 of the 2nd defendant's statement on oath states as follows: 33. That my Family's representatives resident in Afon (the situs of the land in question) knows the length and breath of Ajara Family land located at Ajara Family land. Gbedugbedu Area Afon Asa LGA of Kwara State. It is important to note that while the claimant called the surveyor who survey his land to testify and tendered a survey plan showing the extent and location of its own land at Gbedugbedu Area, the 1st defendant neither called his own surveyor nor tender a survey plan. More importantly, in paragraph 3 of his written Statement on Oath No. 2 which he adopted, Pw.2 who drew the survey plan marked as Exhibit 8 stated categorically that it is the same land at Gbedugbedu Area Afon that the defendants now refer to as Ekunkun land. Like I said earlier the defendant did not call any surveyor or even give evidence of the exact location of the land called Ekunkun; it is therefore my view that Gbedugbedu and Ekunkun land is one and the same and the claimant and defendants are talking about the same piece of land. I hold therefore that the claimant has sufficiently established the identity of the land in dispute as being the same as that of the 1st defendant." Per IBRAHIM SHATA BDLIYA, JCA (Pp 21 - 25 Paras E - F)

What is required for a deponent in an affidavit who derives information from another source?

 "A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that "either of his own personal knowledge or from information which he believes to be true". It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief.
The counter-affidavit of Charles Jibuaku, Esq., a Legal Practitioner, is replete with obvious hearsay and unverifiable facts.
Paragraph 4 of the counter-affidavit, for instance, avers "that private investigation reveals that the Applicant had secretly relinquished his interest in the res in favour of the deponent and/or other unknown persons, which fact is concealed from this Honourable Court but can be ascertained from the tenancy contracts and proof of payment of rent". No tenancy contract or receipt for payment of rent was exhibited. The source of this information on which the weighty allegation is predicated remains a matter for conjecture. The averment, like many others in the counter-affidavit, is reckless, and offensive of the provisions of Section 115 of the Evidence Act. Paragraph 3 thereof does not state how the deponent of the counter-affidavit comes to the bold assertion "that the deponent of the Applicant's affidavit is a total stranger to this proceedings." The averment does not seek to discharge the burden of proof laid on his shoulders by Sections 131 and 132 of Evidence Act that he who asserts any facts must prove that those facts exist inorder to succeed.
Upon reading the counter-affidavit, one gets the impression that it is tailored to meet an application for stay of execution of a judgment. There is no such prayer in the application. The quixotic counter-affidavit appears to substantially attack a phantom."  Per EKO ,J.S.C in jimoh v. hon. minister federal capital territory & ors (2018) LPELR-46329(SC)  (Pp. 10-12 paras. A-A)

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Joinder of Issues and the Determination of Objection on Cause of Action.

One of the common feature of preliminary objections to civil cases is the complaint of non- disclosure of reasonable cause of action. Like many objections against jurisdiction, a plaintiff or claimant's case can be defeated on that score. The rationale behind the principle is that an aggregate of facts pleaded in the Statement of claim or facts ought to have disclosed an actionable wrong against the Defendant. In deserving circumstances however, this objection can be upheld, leading to the termination of the case.

The focus of this post however deals with the recent decision of the Supreme Court in the case of Adejugbe v. Aduloju (2022) 3 NWLR (Pt. 1816) 131. In that case, the apex court considered the procedural step a Court should take when an objection relating to disclosure of cause of action is made. More often than not, most defendants are always eager to hear their objections, even before the substantive suit is determined. Some of the reasons for this push may not be far fetched. It saves time for the Defendant and prevents the full hearing of the case on the merits. For practical reasons, a defendant may also wish to buy time or delay the hearing of the case, all of which are more within the realm of litigation management.

The powers of the Court to entertain a preliminary objection at any stage is however wide and discretionary. Most of the Rules of Court prescribe a discretionary power to the Court to exercise, whether the preliminary objection should be heard at the beginning of the suit, or whether the objection should be heard alongside the substantive case. The decision of the Supreme Court in Adejugbe v. Aduloju might however have limited this discretionary powers of the Courts, when dealing with objections on disclosure of reasonable cause of action. This limitation deals with the status of the pleadings as at when the objection was raised. In the case, the Supreme Court considered the issue and held thus:

Once issues have been joined, an objection based on want of cause of action is no longer available. In this case, the appellant and the 2nd respondent had filed a statement of defence and had joined issues with the 1st respondent on the facts in the statement of claim putting them up for trial. Further, the 1st respondent had filed his reply to the said statement of defence. At that stage, the contention that the 1st respondent’s case disclosed no reasonable cause of action should have been determined after conclusion of evidence and final addresses, along with the merit of the case in the judgment of the trial court. [S.P.D.C. Ltd. v. X. M. Federal (2006) 16NWLR (Pt. 1004) 189 referred to.] (P. 161

The clear purport of the decision of the apex court is to put the exercise of discretion on when to hear the objection on cause of action to check. Once pleadings have been concluded, the objection ought not be taken till the end of the case. A further merit in this position of the court is that hearing the objection together with the substantive suit would prevent the court from making decisions that would prejudge the substantive suit. It would also aid the speedy dispensation of justice.

However, the practicability of this procedure might have reduced the chances of hearing such objections to none! More often than not, most Rules of procedure now require a Defendant to file his statement of defence alongside the objections. The implication is that once the Claimant files his Reply to the Defence (which incorporates the objection), hearing such preliminary objection on grounds of non-disclosure of cause of action would have been rendered otiose. The only avenue would then be for the Defendant to refuse to file a Defence, but merely file a preliminary objection alone, which could lead to demurrer, which in turn, in now prohibited under the Rules. 

These are my early thoughts on the decision. Kindly share your take on it in the comment section. Again, thanks for reading.