Short Message Service (SMS) as a Means of Serving a Hearing Notice – Issues of Fair Hearing

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By Olufe John Popoola

To some extent, Covid-19 has changed the means by which we carry out our everyday activities. Even before the outbreak of Covid-19, science and technology has continued to changes the ways of doing things. It is no surprise how technology has been of immense value in the advent of the novel Corona virus pandemic bedevilling the entire universe. Countries with more sufficiency in technology have so far faired better with the debilitating effects of the global pandemic.

The judiciary in the world and particularly Nigeria; which is the main focus of this article, has been forced to sporadically lean towards the adoption of technology; for the smooth, unhampered running of the justice delivery system. Nigerian Judiciary has in a bid to adjust to the present-day reality provided related practice directives which specifically provide for the electronic service of court processes. It is worthy of note that before this period, there had been moves to integrate electronic service of processes to complement the existing law, which is that; proper service of court processes is physical delivery to a party or their lawyers, or by some other substituted means duly ordered by the court.

This article seeks to critically analyse the intricacies of issues of fair hearing as it relates to the newly introduced Short Message Service (SMS) as a means of serving a hearing notice using the recent Supreme Court decision in Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[1]  as a case study.

I will briefly summarize the case of Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[2]. In that case, the Supreme Court expressed its stand on the validity of service of hearing notices through Short Message Service (SMS). At the trial stage in High Court of Lagos State, there was an action for recovery of outstanding fees due to the Respondent for the supply of scaffolding material and other services rendered to the Appellant. The suit had several adjournments at the instance of the appellant, and was finally scheduled for continuation of Case Management Conference on 15th of March, 2016 and hearing notice was ordered to be served on the two parties. Respective Counsel for the parties had made their phone numbers available to the court according to the Rules of Court and the court’s registry chose to send the hearing notice through text message to those phone numbers.

On the date fixed for the continuation of Case Management Conference, the appellant was absent, and the Respondent applied to the court 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 declined. 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 argued, inter alia, that it was wrong for the High Court of Lagos State 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 argued 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 State High Court (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.” 

In discussing the above judicial decision by the Honourable Court, it is essential to examine the principles that require the service of Hearing Notices, the Rules of Court and its effect on fair-hearing

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Fair hearing is an indispensable component of natural justice. 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 own defence. This would show that the court is an unbiased umpire which optimum goal is to dispense justice and that justice should not only be done, but should manifestly be seen to have been done. Under, section 36(1) of the 1999 constitution, it is guaranteed that in both civil and criminal proceedings a person is entitled to fair hearing within a reasonable time before a court or other tribunal established by law. A person’s right to fair hearing is an organic legal right and is guaranteed at all times.

Our 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. In Ikom Local Government v. Chenlex group ltd (2011) LPELR-4301(CA), it was held that “The failure to serve hearing notice on the Appellant before judgment was entered in favour of the respondent is a fundamental vice which has rendered the proceedings leading to the judgment void and the said judgment has to be set aside as being a nullity.” Per AKAAHS, J.C.A. (P. 9, paras. D-E). Also, In Eimskip Ltd v. Exquisite Industries (Nig.) Ltd it was held that,” 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[5].

Furthermore, in NUT Taraba State & ors v. Habu & ors(2018) LPELR-44057(SC), it was held that “Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void”. This shows the importance of service of hearing notice to the dispensation of justice in our legal system.

Upon service of a hearing notice, the Court will satisfy itself that service has been properly effected through the affidavit of service containing the depositions on oath made by the person (most time the Bailiff) who served it. The affidavit will contain details of the fact, place, date and mode of service of the notice. It will be considered as prima facie proof that service was properly affected. Where an affidavit of service is not filed, it is the duty of the Court to demand to see proof in the form of an affidavit sworn by the Bailiff[6]. Through the affidavit the Court will be able to satisfy itself that the court process has come to the attention of the respondent or will be brought to his attention.

However, the service of court processes is governed by the Rules of court and several Courts in Nigeria have legislate recent amendments of their procedural rules introduced the use of technology as a standard in the service of processes and notices.

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The provisions of Order 9 Rule 15 of High Court of Lagos State Civil Procedure Rules 2019 of the Rules now requires, in the place of an Affidavit of Service, that the process server should record the service of court processes in a register kept at the Court Registry, where he shall state the method of service, personal or otherwise, and the manner used to ascertain that the right person was served. Can it be said that the decision of the trial court in Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd compiles strictly with the Rules of the Honourable Court? Obviously, the answer is in negative.

Although, the Supreme Court of Nigeria Rules (2014 Amendment), provides under Order 2 Rule 1 (3) (c) [7] that: “Where any person has given an address for service of any notice or other process not required to be served personally under these Rules, it shall be sufficiently served upon him, if transmitted by electronic means to the electronic mail address, facsimile number, GSM telephone number or other electronic mode of communication.”  But this should not override the provision for concrete proof of service in order not to defeat the doctrine of fair-hearing in our legal system. 

 In Imunze v. FRN (2014) LPELR 22254 (SC) it was held by the Supreme Court that “Rules of court are meant to be obeyed. They are not made for the fun of it. They must be followed strictly, unless the court is given discretion under them. These rules bind all parties before the court. No party is allowed to choose when or which to obey and/or disobey”. It is apposite, then, that where the Rules of Court require that things be done in a particular way, anything done contrary to those Rules would be invalid.

However, the Supreme Court in the Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[8], considered the Appellant’s arguments that service had not been effected in accordance with Order 7 Rule 13 of the High Court of Lagos 2012 Civil Procedure Rules (i.e. that no proof of service had been filed), and rejected them. The Court held that:

“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.” 

The Court also held that:

“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 hard copy. 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 advancements 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” 

From the court decision is in this case, I humbly submit that the doctrine of fair hearing was defeated because it is seen from the Appellant’s arguments at the appellate Courts, that the Registrar of the trial Court just showed his phone to the trial judge as proof that the hearing notices was delivered to the parties. The court did not pay cognizance to the essentiality of an affidavit of service in proving the service of the processes to the parties involved. I don’t think that mere delivery of a Short Message Service (SMS) message to the parties once it has been sent from the Registrar can form as a proof of service or be an alternative to an affidavit of service. What if it happens that the recipient is not within the network’s coverage area, or there is some network downtime in his area, or his mobile phone is turned off, or his phone memory is full, or his phone was stolen and later recovered? And if a SMS is sent and in the event that the message is not able to be delivered before the expiration of the storage period, then that message fails to deliver without any notice to the sender of that occurrence. So, a notification of a message sent on a dispatched SMS message is not an absolute confirmation of delivery of the message as the court may think.  It can only be a better alternative when the receiver acknowledged the receipt of the SMS. Even, there are times where the network provider may fail to issue a report on a sent message as a result of a technical or network failure. Also, the recipient could prevent his phone from issuing such delivery receipts under his phone’s privacy settings.

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It is also worth noting that the High Court of Lagos State 2012 Civil Procedure Rules did not make provision for service through technology except by substituted means through e-mail, SMS was not mentioned by the Rules. Even the requirement under the said Rules that the Claimant’s counsel should make available its phone number was not similarly stipulated for the Defence Counsel and may have been imposed by fiat of the Registry.

Another manner in which an SMS can be a substituted means of service of hearing notice is when the both parties consented to it as a means of communication in their transaction. This is seen in the Court decision in Bermith Lines Ltd v. High Seas Shipping Ltd[9] where it was held as follows: “where a party is to be served by ‘electronic means’, the party whom is to be served or his legal representative must previously have expressly indicated in writing to the party serving that he is willing to accept service by electronic means…” 

Although, the embrace of technological innovation in the dispensation of justice by our various courts and as seen in Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[10]  is applaudable and a welcome development but the manner or procedure in which this would be used, should be in careful and strictly accordance with the provision of the Rules of Court in order not to defeat fair hearing which will eventually amount to injustice.

Based on the Common law kind of legal system we practice in Nigeria, the decision in Compact Energy & Manifold Services (C.E.&M.S.) Ltd V Pazan Services Nigeria Ltd[11],  will unfortunately stand as a judicial precedent in our court, that is, remains binding until same is set aside by the Supreme Court itself. Now the service of hearing notices through text messaging will be considered as proper service on parties, even where the procedure did not strictly compile with the Rules of Court. There is an urgent need for legislation on uncertainties in electronic means of service of Hearing Notice and related matters.

Olufe John Popoola is a legal practitioner and writes from Lagos. He can be reached at popoolaolufe2016@gmail.com

[1] (2020) 1 NWLR (Part 1704) 70

[2] Supra

[3] Now Order 27 Rule 5(b) of the High Court of Lagos State (Civil Procedure) Rules 2019

[4] 2012 Amendment

[5]  (2003) 4 NWLR (Part 809) 88

[6] See Umar & Anor v Okeke (2016) LPELR 40258 (CA)

[7] The Court of Appeal Rules (2016) contain identical provisions under Order 2 Rule 10 (c)

[8] Supra.

[9] [2006] 1 Lloyd’s Rep. 537. Queen’s Bench Division

[10] (2020) 1 NWLR (Part 1704) 70

[11] Supra.

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