IS A TEXT MESSAGE PROPER MODE OF SERVICE OF HEARING NOTICE?

C. M. & E. S. Ltd. v. Pazan Services Nig. Ltd. [2020] 1 NWLR (Pt. 1704) 70

The Story

A company, Pazan Services Nig. Ltd. (“The Respondent”) sued another company, Compact Manifold & Energy Services Ltd. (C. M. & E. S. Ltd. – “The Appellant”) at the High Court of Lagos State for the recovery of monies being unpaid balance for the supply of scaffolding materials and services rendered to the Appellant. Issues were joined by the parties. The matter suffered series of adjournments at the instance of the Appellant. The case was later slated for continuation of Case Management Conference (CMC) on 15th March, 2016 and hearing notice was served on both Counsel. The service of the hearing notice was by text message sent by the registry to the phone numbers made available by Counsel. CMC is a court proceeding (a form of alternative dispute resolution proceeding – ADR) that aims to give parties an opportunity to amicably resolve their dispute. Other applications can be heard by the court at the proceeding; and the real issues identified and narrowed, all with a view to paving the way for a smooth trial if parties were unable to settle. 

On that date, that is 15 March 2016, the Appellant and its Counsel were absent. The Respondent applied for judgment under Order 25 Rule 6 (2)(b) of the High Court of Lagos State (Civil Procedure) Rules 2012 (which empowers the court to enter judgment against a defendant who fails to participate in ADR proceedings. This provision was retained in Order 27 Rule 5(b) of the High Court of Lagos State (Civil Procedure) Rules 2019).

The Court granted the application and entered judgment in favour of the Respondent. The Appellant thereafter applied to the Court to set aside the Judgment but the application was refused. The Appellant’s appeal up to the Supreme Court was dismissed. At the Supreme Court, the Appellant challenged the mode of service of the hearing notice, claiming breach of fair hearing. The Supreme Court was unmoved. Galumje, JSC held:

In the instant case, there is evidence that parties left their phone numbers with the registry of the Court. The phone numbers were supplied for the purpose of communication between the parties in this matter and the registry. There is evidence that a text message containing 15th March, 2016 as the hearing date of this matter was sent to learned Counsel for respective parties through their phone numbers. Clearly, parties were properly served with hearing notice. I agree with the lower Court that at this age of information technology super highway, it would be foolhardy for any litigant to insist on being served with hard copy hearing notice. Once a notice is sent to the GSM numbers supplied by the litigants, that is sufficient.

Essence of hearing notice

Hearing notice is a notice informing parties to a suit directly (or through their respective counsel) of a specified date a matter is slated to come up before a court. It does not necessarily imply notice of hearing (or trial). It may be a notice stating that the case would be coming up for any other business or simply for mention (especially where the matter is coming up for the first time). It is trite that issuance of hearing notice is fundamental to administration of justice. Failure to issue the same in deserving cases may lead to breach of fair hearing. Galumje, JSC explained the essence of hearing notice when he noted:

What then is the essence of hearing notice? The issue of service 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. Thus, where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the court has a duty to notify them of the subsequent adjournment. The court should not predicate its decision on mere assumption that a party must have been served with court process at one stage and that he should be aware of the subsequent hearing date.

What if the text message was not received?

GSM network might fail. This means that there might be some genuine cases (though infrequent) where the hearing notice served through text message would not be received by counsel. Counsel is expected to raise the issue at the earliest opportunity. It is also advised that where counsel on the side receives the text message, (s)he should endeavour to further inform the other counsel of the notice and possibly follow up the same with a letter or an email. This should be followed thereafter with an Affidavit of Service exhibiting a copy of the correspondence. Above all, it is incumbent on a party and counsel to monitor the progress of a case and frequently liaise with the court registry in order to be up to date with court schedules. If there is evidence that counsel is not diligent and forthright in pursuing his or her case, the court will not take counsel seriously when counsel complains that the hearing notice by text message was not received, especially when the other side confirms receipt of the notice. This was precisely what played out in the instant case of C. M. & E. S. Ltd. v. Pazan Services Nig. Ltd. Galumje, JSC explained the position thus:

Learned Senior Counsel for the Respondent was served the same way Appellant’s Counsel was served. At the lower Court, learned Counsel for the Appellant did not deny at the earliest opportunity that he did not receive any hearing notice. He only argued that the hearing notice was not served in accordance with the Rules of Lagos State High Court. His sudden summersault before this Court is an attempt to frustrate the speedy disposal of this case. From the history of the case, learned Counsel for the Appellant has not been forthright in pursuit of this case. Having therefore been properly served with hearing notice, the Appellant’s right of fair hearing has not been breached at all.

 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

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