➥ CASE SUMMARY OF:
Compact Manifold & Energy Services Limited v Pazan Services Nigeria Limited (2019) – SC.361/2017
by Branham Chima.
Compact Manifold & Energy Services Limited
Pazan Services Nigeria Limited
Supreme Court – SC.361/2017
➥ JUDGEMENT DELIVERED ON:
Friday, the 12th day of July, 2019
➥ THIS CASE IS AUTHORITY FOR:
⦿ IF PRELIMINARY OBJECTION IS UPHELD FURTHER PROCEEDINGS IS UNNECESSARY
A preliminary objection to the competence of an appeal, is an objection, if upheld, renders further proceedings before the Court or tribunal unnecessary. Therefore, when it is raised, it must be resolved before venturing into the appeal. — P.A. Galumje, JSC.
⦿ MOTION ON NOTICE, NOT PRELIMINARY OBJECTION, IS THE PROPER PROCESS TO CHALLENGE SOME GROUNDS OF APPEAL
The emphasis is that a preliminary objection can only be issued against the hearing of the appeal, and not against a selection of grounds of appeal, which even if it is upheld cannot terminate the appeal in limine. In KLM Royal Dutch Airlines v. Aloma (2017) LPELR- 42588 (SC), this Court, per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC at pages 6-7, paras D-B, held:- The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Courts jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404 at 423 C-F, Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314; N.E.P.A. v. Ango (2001) 15 NWLR (Pt. 734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183. See also the case of Adejumo v. Olawaiye (2014) 12 NWLR(Pt.1421) 252 at 279 where this Court, per Rhodes-Vivour said:- ‘A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice.’ From the authorities I have highlighted above, it is clear that the preliminary objection in the instant case is inappropriate and same is liable to be struck out. Accordingly, same is hereby struck out. — P.A. Galumje, JSC.
⦿ THE ISSUES ADOPTED BY THE APPELLANT IS TO BE ADOPTED
The issues formulated for determination of this appeal by the parties are similar. However, it is the appellant that is aggrieved by the decision of the lower Court. It is his grievances that are being addressed in this appeal. The respondents duty is to reply to those grievances. This being so, I will adopt the issues formulated by the appellant in the determination of this appeal. — P.A. Galumje, JSC.
⦿ ESSENCE OF A REPLY BRIEF
The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the respondents brief of argument. — P.A. Galumje, JSC.
⦿ ISSUE OF HEARING NOTICE BEARS ON THE JURISDICTION OF THE COURT
Although the receiving of hearing notice is a new issue in this Court, it can be raised without leave of the Court, since it has bearing on the jurisdiction of the trial Court, the Court of Appeal and this Court. — P.A. Galumje, JSC.
⦿ ESSENCE OF HEARING NOTICE
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 dates. See Obimonure v. Erinosho (1966) 1 ANLR 250, Skenconsult (Nig.) Ltd v. Ukey (1981) 1 SC.6; Wema Bank Nig. Ltd v. Odulaja (2000) FWLR (Pt.17) 138 142-143. — P.A. Galumje, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Paul Adamu Galumje, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
O. Wali, SAN.
➥ CASE FACT/HISTORY
The respondent herein, as plaintiff at the High Court of Lagos State claimed at paragraph 23 of its statement of claim filed on the 31st March 2014, the following reliefs: –
- The sum of N95,399,765.28 and the sum of $875,949.22 being the unpaid balance of money for the supply of scaffolding materials and services to the defendant for the Chevron EGP-3B project, offshore Warri Delta State.
- The sum of N43,522,300.00 being the total cost of the unrecovered scaffolding materials and equipment in possession of the defendant at Chevron EGP-3G project, offshore Warri Delta State which have been rendered unfit and unusable due to salty water and high humidity at the project site.
- An order for the release of 2 offshore materials baskets belonging to the claimant still in NIWA yard warehouse of the defendant in Warri. The appellant herein filed a statement of defence on the 3rd of October, 2014. The respondent filed a reply on the 29th December, 2014. Issues having been joined, the case was set down for hearing before Oke Lawal, J. on the 7th July, 2014.
After series of adjournment, on the appointed day when the matter came up for continuation of the case management conference, the appellant and his counsel were absent. The respondent applied for judgment under Order 25 Rule 6(2)(b) of the High Court (Civil Procedure) Rules, 2012. The Court granted the application and went on to enter judgment for the respondent herein. By a motion on notice filed on the 18th March 2016, the appellant prayed the Court to set aside the judgment delivered on the 15th March, 2016. The application was refused.
Appellant’s appeal against the judgment of the Lagos State High Court was on the 10th March, 2017 dismissed by the Court of Appeal, hence this appeal.
The appellant’s notice of appeal, at pages 810- 816, filed on the 13th March, 2017 contains eight grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the lower Court was right to hold that the appellant was aware of the date the default judgment was entered when no hearing notice was served on the appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. HEARING NOTICE VIA SMS IS PROPER HEARING NOTICE
[‘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 will 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. Learned senior counsel for the respondent was served the same way appellants 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 somersault before this Court is an attempt to frustrate the speedy disposal of this case. From the history of this case, learned counsel for the appellant has not been forthright in pursuit of this case. Having therefore been properly served with hearing notice, the appellants right of fair hearing has not been breached at all.’]
II. Whether from the material facts available in the record the lower Court came to a right decision when it held at page 804 of the record that the default judgment was entered within the three months’ period of the commencement of case management conference (CMC) in accordance with the provision of High Court of Lagos State (Civil Procedure) Rules, 2012?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DEFAULT JUDGEMENT WAS ENTERED WITHIN THREE MONTHS OF THE CASE MANAGEMENT CONFERENCE
[‘The lower Court in its judgment at page 804 said:- “To resolve the question of whether 3 months had expired, the starting date must be identified and three months therefrom can be easily discerned. When did the process commence? The record of proceedings (Sic)page 557 shows that the Court below dismissed an application to dismiss the appeal on the 24th November, 2015 for failure to apply for case management conference as required by Order 25 Rule 1 (1) and (3) of the Lagos State High Court, Rules. The case was adjourned to 15th December, 2015 for the case management conference to start, but was aborted by the appellant who informed the Court they were desirous of settlement of the pre-trial conference. On the next date being the 26th January, 2016, the conference started. So the started (Sic, Starting) date is 26th January, 2016 and three months would ordinarily take us to 25th March, 2016. The judgment was entered on the 15th of March, 2016 within the period of pre-trial conference.” I totally agree with the lower Court.’]
‘For all I have said, I entirely agree with the learned senior counsel that the default judgment was not entered outside the three months prescribed by the Lagos State High Court (Civil Procedure) Rules 2012. This issue is resolved against the appellant. Having resolved the three issues submitted for determination against the appellant, this appeal shall be and it is hereby dismissed.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)