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THE SERVICE OF HEARING NOTICES THROUGH SMS: AN ANALYSIS OF THE SUPREME COURT OF NIGERIA’s DECISION IN C.E.&M.S. LTD v. PAZAN SERVICES NIGERIA LTD by Adeniji Kazeem SAN, FCIArb

Article on service via sms by Adeniji Kazeem SAN
Adeniji Kazeem SAN,

Introduction

Technology has transformed the means by which we carry out our everyday activities. Every sector of the society has experienced technological advancement and the legal profession is not any different. Although, some believe that being a noble profession, the prestige of the legal profession can only be preserved by maintaining the traditional values and carrying out traditional processes. However, this school is being overtaken by the global wave of technological innovation.

This article analyses how technology has impacted on the processes of Nigerian Courts, using the decision in the C.E. & M.S. v Pazan case as a study. It also examines how efficiently and fairly justice can be dispensed through the use of technology in the service of court processes.

The Decision in C.E.&M.S. Ltd v. Pazan Services Nigeria Ltd

In the case of Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[2], the Supreme Court stated its decision on the validity of service of hearing notices through text messages. The case at the High Court involved the recovery of outstanding fees due to the Respondent for the supply of scaffolding material and other services rendered to the Appellant. The matter suffered several adjournments at the instance of the appellant, and was eventually scheduled for continuation of Case Management Conference (CMC) on 15th of March, 2016 and hearing notice were ordered to be served on the two parties. Respective Counsel for the parties had, beforehand, made their phone numbers available to the court and the court’s registry chose to send the hearing notice via text message to those numbers.

On the date scheduled for the continuation of CMC, the appellant was absent, and the Respondent applied for Judgment under Order 25 Rule 6 (2) (b) of the High Court of Lagos State (Civil Procedure) Rules 2012[3] on the grounds of the Appellant’s non-participation in Alternative Dispute Resolution (ADR) proceedings. The Court granted the application and entered judgement in favour of the Respondent. The Appellant then applied to the Court of Appeal to set aside the Judgment and was refused. The Appellant later appealed up to the Supreme Court on the grounds that its right to fair hearing had been breached because the service of the Hearing Notice did not comply with the Rules of Court. The Appellant contended, inter alia, that it was wrong for the trial Court to enter judgment against it in default of appearance, especially since the Court did not sit on the previous adjourned date and there was no proof of service of the hearing notice on the Appellant who had consistently appeared before the Court. He further contended that the proof of service purported to have been made via a text message by the Court’s Registrar was not in line with Order 7 Rule 13 of the Lagos Civil Procedure Rules[4]. The Appellant’s argument was as follows:

“…although electronic service is permitted by the Rules of the trial court, none was effected on the appellant, and there was no affidavit of service to that effect. There was no evidence before the trial court upon which the lower court could come to the conclusion or assumed that the text message which the court room registrar of the trial court allegedly sent to the appellant’s learned counsel’s phone was received.”

The Supreme Court, in dismissing the Appeal, held that:

“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 superhighway, 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.” (emphasis mine)

READ ALSO: Service of Hearing Notice Via Phone Call – Whether Good Service  In analysing the above decision, it is important to examine the underlying principles that require the service of Hearing Notices, the Rules of Court which implement them, procedurally, and the efficacy of service through technological means in the modern age.

The Principle of Fair Hearing

The legal maxim – audi alterem partem (i.e. let the other side be heard) is an inextricable component of natural justice, as it embodies the principle of fair hearing. In order for a party to a suit to be seen to have been fairly heard, a reasonable opportunity must be given to him to be present in Court for the purpose of offering evidence, cross-examining anyone giving evidence against him, and to give his defence. The primary aim is to ensure that justice is done.

It is for this reason, that the courts always seek to ensure that all reasonable steps have been taken to ensure that a party in a matter has been given the opportunity to participate in proceedings through the service of hearing notices. Indeed, the failure to serve hearing notices when required has been held to render any proceeding that is conducted thereafter a nullity, even if such failure is based on a procedural fault.

Traditionally the service of the Hearing Notice has been done through the conventional delivery of physical notices personally on the recipient or by substituted means through service on other persons or by publication. With the advent of technology, however, the courts have begun to permit service of its processes digitally using technology such as e-mail, sms messages and, in some cases, media enabled instant messaging services such as WhatsApp….CONTINUE READING HERE

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Publishers of Judgments of The Supreme Court of Nigeria (S.C Report) - on the Authority of the Supreme Court of Nigeria

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