Ecobank V Rubicon Energy Services Ltd & Ors: Court Of Appeal Sets Aside Its Decision For Want Of Fair Hearing

*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.

*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.