CHEVRON NIGERIAN LIMITED v. CHIEF CHIMEZIE A. OSIGWE
(2014)LCN/7397(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of July, 2014
CA/OW/226/2011
RATIO
COURT: JURISDICTION; WHAT VESTS JURISDICTION ON A COURT TO HEAR AND DETERMINE A MATTER FOR AND AGAINST THE PARTIES IN CONTENTION
In law, proper service of process and notice of hearing of a cause is what vest jurisdiction on a court to hear and determine a matter for and against the parties in contention. See the case of UBA PLC v. Effiong (2011) LPELR – 8934 (CA); Mark v. Eke (2004) 5 NWLR (Pt. 865) 54, and Modahunsi v. Kwara Inv. & Property Dev. Co. Ltd (2011) LPELR – 9105 (CA) where this court held: “Proof of service of the process on the defendant is very fundamental to the issue of jurisdiction and competence of the Court to adjudicate.” per. ITA G. MBABA, J.C.A.
In the case of S.P.D.C Nig. Ltd v. Esowe (2007) LPELR – 8670 CA; (2008) 4 NWLR (Pt. 1076) 72, this Court per Gumel JCA held:
“Where service of a court process is required to be made and the Court through its relevant officers (Bailiffs) failed to effect the service of the required process, that failure is a fundamental vice that could taint any proceedings subsequent to the failure to serve the process with illegality … Skenconsult v. Ukey (supra) … The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to the jurisdiction and competence of the court to go ahead with the matter. “See also Iyabo Isiak & Anor. V. Saka Opobiyi (2012) LPELR – 8540 (CA). per. ITA G. MBABA, J.C.A.
In the case of Fulani vs. Rafawa & Ors (2013) LPELR – 20384 (CA) ABIRU, JCA said:
“fair hearing postulates that where a person’s legal rights or obligation are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights and obligations. It is an indispensable requirement of justice, that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case.
Accordingly, a hearing can only be said to be fair, when, inter alia, all the parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. Otapo v. Sunmonu (1987) 2 NWLR (pt 58) 587; (1991) 6 NWLR (Pt. 199) 614; Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628 per. ITA G. MBABA, J.C.A.
JUSTICES:
ITA G. MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
CHEVRON NIGERIAN LIMITED – Appellant(s)
AND
CHIEF CHIMEZIE A. OSIGWE – Respondent(s)
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This Suit was commenced at the Federal High Court, Port Harcourt as suit No. FHC/PH/CS/1124/98 and later transferred to the Umuahia Division of the Federal High Court in 2001. On creation of the Owerri Division of the Federal High Court in 2004, the suit was, again, transferred to Owerri Division. It suffered several striking outs and relistings, and hearings, de-novo. It was finally heard as FHC/UM/CS/07/2002 by Hon. Justice F.A. Olubanjo, who delivered the judgment on 14/2/2011 and gave judgment to the Plaintiff (now Respondent) as follows:
“The sum of N16,225,950 (Sixteen Million Two Hundred and Twenty Five Thousand, Nine Hundred and Fifty Naira) as special damages; the sum of N10m (Ten Million Naira) as General Damages and the sum of N23m (Twenty Three Million Naira) as Aggravated Damages. Consequently, the Defendant shall forthwith pay the Plaintiff a total sum of N49,225,950”
The claim by the Respondent at the trial Court, as per his further Amended statement of claim on page 100 of the Records of Appeal, was for:
“A: N60,000,000.00 (Sixty Million Naira) being special general and aggravated damages in that on or about sometime in 1993, the Defendant and its agents, while engaged in the business of the Defendant caused shooting (dangerous and negligent) of some explosions which cracked the plaintiff’s palace, the underground tank, the venerated tomb/grave of plaintiff’s father, his 3 bedroom bungalow, his fence, which unlawful act occasioned great damage/loss to the plaintiff
B: N5,000,000.000,00 (Five Billion Naira) for the death, willful Negligence, Aggravated and general damages resulting from the murder of his mother Premie Madam Titi Mgbeokwere Osigweh by the acts of the Defendant through its agents and in the cause of its business
Particulars of Special Damages
A special damages:
(a) (i) physical structure (Destroyed and Cracked) = N14,225,950.00
(ii) Reparation/Appeasement = N2,000,000.00
(b) General Damages = N20,774,050.00
(c) Aggravated Damages = N23,000,000.00
B. (a) Murder of premie Madam T.M. Osigweh = N3,000,000.000,00
(b) General and Aggravated Damages, Willful Negligence/Breach of Duty of Care = N2,000,000,000.00
Total = N5,000.000.000.00
Ground Total = N5,060,000,000,00
Dissatisfied with the decision, Appellant filed Notice of appeal on 17/2/11, as per pages 180 and 181 of the Records of Appeal and disclosed a single ground of appeal, with intent to file further grounds, on receipt of the Records of proceedings. He filed Additional Grounds of Appeal, with leave obtained on 25/4/12, from this Court. The Additional Grounds of appeal were 2. Appellant filed his brief of argument on 1/6/2012 and distilled two (2) Issues for determination as follows:
“(i) Whether in the circumstances of the suit at the lower Court, particularly in the conduct of the trial proceedings, the Appellant was accorded fair hearing.
(Ground 2 of the further grounds of appeal)
(ii) Whether in the circumstances of the suit at the lower court particularly on the pleadings and evidence led in proof, the Respondent is entitled to the award of special damages or any damages at all and if he was not, whether the sums of N10,000,000 and N23,000,000 being general and aggravated damages are not excessive, a double compensation and therefore wrongful.
“(Ground 1 of the further grounds of appeal).
The Respondent filed his Brief of argument on 27/03/13 and also distilled 2 Issues for determination, as follows:
(1) Whether from the circumstances of this case, the Appellant was denied fair hearing.
(2) Whether from the circumstances of this case, the total sum of N49,225,950 (Forty Nine Million, Two Hundred and Twenty Five Thousand, Nine Hundred and Fifty Naira) awarded to the Respondent by the trial Court is justified”
The Appellant filed a Reply on points of law on 9/4/2013.
When the appeal was heard on 10/6/14, the parties, and their Counsel, were absent and the briefs were deemed adopted and argued.
Arguing the appeal, learned counsel for the Appellant, Obiora Ibeziako Esq, who settled the brief submitted, on issue one, that the right of fair hearing of the Appellant is guaranteed by the 1999 constitution, section 36 thereof; and cannot be waived, nor can its breach be acquiesced to. He relied on the case of FBN Plc vs. T.S.A. Ind. Ltd (2010) 15 NWLR (pt 1216) 247 at 303.
Counsel said that Appellants’ right to fair hearing was breached in this case, when it was not given opportunity to both cross examine the Respondent’s seven witnesses and also to present its own defence to the claim before the judgment was delivered against it. He recalled the chequered history of the case, how it was struck out and re-listed a number of times and had to commence de-novo, several times. He argued that when the case was finally set down for hearing before Olubanjo J. in 2010, no hearing notice was served on the Appellant’s counsel; that Appellant’s counsel was not even aware that a new Judge had been appointed at Owerri Division of the court. He called to notice that the Respondent commence hearing on 13/10/2010 and called 5 witnesses on that same day and Appellant was not in court and was not represented by counsel; that the Appellant was not called upon to cross examine the witnesses as required by section 189(1) of the Evidence Act; that the matter was adjourned to the following day, 14/10/2010, without any issuance of hearing notice on the Appellant; that that was a clear breach of Appellant’s constitutional right of fair hearing. He relied on the case of Agbogu v. Adichie (2003)2 NWLR (pt.805) 524; Abdulalu v. Waje Community Bank (2000) 7 NWLR (pt.63) 9 and 27.
Counsel argued that failure to serve hearing notice was fatal, as it goes to the jurisdiction and competence of the Court to hear a case. He relied on the case of S.P.D.C.N. Ltd v. Esowe (2008)4 NWLR (Pt.1076) 72 at 89.
He further argued that the trial Court even allowed application to recall the 5 witnesses on 14/10/2010 to tender documents still without the presence of the Appellant. He urged us to resolve the issue for Appellant.
On Issue 2, Counsel submitted that the trial Court was in error, when, against the rules of pleadings and evidence regarding damages, particularly special damages, the court awarded a total sum of N49,225,950.00 as special, general and aggravated damages to the Respondent. He submitted that damages is usually awarded on the basis “restitution in intergrum,” to restore a party or an injured party to the position he was prior to the injury and that the principle is not that of “restitution” in opulentum” – to catapult him to opulence. Counsel also submitted that the issue of damages can only arise where the claimant has proved his entitlement to the same, fulfilling the conditions precedent thereto. He added that the Plaintiff had a duty to prove the special damages strictly, he relied on the case of Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370 at 385, and said that special damages are “those damages which are the actual but not the necessary result of the injury complained of and which in fact, flow as a natural and proximate consequence in the particular case that is by reason of special circumstances or conditions. Such damages do not arise from wrongful act itself, but depends on circumstances perculiar to the infliction of each respective injury…”
Counsel submitted that paragraph 12 (a) of the further amended statement of claim which the trial Court relied upon (pages 59 – 64 of the Records) did not meet the requirement of law regarding pleadings of special damages, as it did not carry the breakdown of items allegedly damaged or the cost of each item required for the alleged appeasement and that the Respondent did not lead evidence in proof of the alleged claims; that in evidence the Respondent simply told the court:
“The update report by the firm of estate surveyors and valuers put the property (structures and reparation/appeasement for the tomb) at N16,225,950 and general damages is put at N20,774,050,” See page 50 of the Records).
Counsel submitted that the valuers report relied upon did not give a breakdown of the items of special damages and so, he submitted, that the Respondent did not have evidence to prove the special damages and relied on the case of Ebe v. Nnamani (1997) 7 NWLR (pt. 513) 479 at 503; Ileke vs. Aondoakaa (2000) 9 NWLR (pt.673) 501.
Counsel further argued that even if the Respondent was entitled to any damage, he was under obligation to mitigate his damage and any negligence by him in this regard is a bar to a claim; he argued that in the original statement of claim dated 2/5/2000 (pages 6 – 9 of the Records) the Respondent averred that on or about 1993 the Appellant by itself or agents while engaging in the business of seismic operations caused considerable damages to his property and claimed a total sum of N10,000,000, representing N5,235,000 as special damages comprising cost of reinstating his palace at the same site (among others) and N4,765,000.00 as general damages; that Respondent later amended his claims and increased the special damages to N30,820,000 and general damages to N19,180,000 (pages 32 – 36 of the Records); that Respondent further amended the process to claim N16,225,950 as special damages. (Page 64 of the Records). He relied on the case of RCC Nig Ltd vs. RPC Ltd (2005) 11 NWLR (pt. 934) 615 at 638 on the need for a Plaintiff to take all necessary and reasonable steps to mitigate his loss.
Counsel argued that in this case there is no evidence the Respondent repaired his building, which was allegedly cracked in 1993 as a result of activities of the Appellant, when the alleged crack occurred or thereafter, up to 2011 when the judgment was delivered – a period of 18 years! That the Respondent did not also take steps to ensure that the building and other properties did not dilapidate further; that he rather waited and kept increasing the claims and raising the amount to fix the alleged damage by the years, from the N5,000,000, original claims made in 1998 to something else!
With regards to the general damages, counsel contended that general damages is implied or presumed by law from the wrong complained of, as immediate, direct and proximate result of the injury or wrong. He relied on the case of UTB (Nig) Ltd vs. Ajagbule (2006) 2 NWLR (Pt.965) 447 at 497.
Counsel submitted that considering the fact that Respondent had alleged that his 3 bed room bungalow and fence, as well as his father’s tomb and underground tank were the property affected by the seismic operations in 1993 for which he claimed N10,000,000 as special and general damages in 1998, award of N10,000,000 as general damages was excessive.
On the aggravated damages, counsel submitted that the trial court was completely wrong in awarding aggravated damages of N23,000,000.00 to Respondent, as the Respondent did not, either by his pleadings or evidence led, show any grounds for that claim.
Counsel conceded that aggravated damages may be awarded in addition to award of special and general damages, where damages are at large and the conduct of the Defendant was such as to injure the Plaintiff’s proper feeling of dignity and pride, which of course, have to be pleaded and proved. He said that, like exemplary damages, it is awarded where the conduct of the Defendant is oppressive, arbitrary and unconscionable and relied on Odiba vs. Muemue (1999) 10 NWLR (Pt.622) 174 at 189 – 190; Afribank Nig. Plc vs. Onyima (2004) 2 NWLR (pt.858) 654 at 682.
Counsel submitted that the Respondent did not plead nor lead evidence to establish the claim for aggravated damages – by showing any outrageous, arbitrary or unconscionable conduct of the Defendant to justify the reasoning of the trial Court on page 176 of the Records for awarding the N23,000,000 as aggravated damages. He said the same was unjustifiable and urged us to overturn it, relying on UBA vs. BTL Ltd (2006) 19 NWLR (pt.1013) 61 at 143.
He urged us to resolve for the Appellant and allow the appeal.
In his response, Learned counsel for the Respondent, HRH Eze Dr. Ejike Ume, SAN (who settled the brief), on issue 1, submitted that the purport of section 36 (1) of the 1999 constitution (as amended) is to guarantee every citizen the right of fair hearing in the determination of his rights and obligations; that a citizen must be given opportunity to be heard. He argued that that, however, does not mean that the person must be heard at all event willy, nilly; that where a party has been given opportunity to be heard and he fairs to utilize it, he cannot complain of being denied fair hearing. He relied on the case of Ohajunwa v. Obelle and Anor (2008) 3 NWLR (pt. 1073) 52.
In the instant case, senior Counsel submitted that the Appellant refused to take advantage of the opportunity offered and guaranteed by the Constitution to be heard; that the Appellant was represented in court on 20/11/08 by one U.O. Umoh Esq. (page 139 of the Records); that on 22/4/2010, the Court ordered for Hearing Notice to be served on the Defendant/Appellant, and that on 13/10/2010, the Court noted that the Defendant/Appellant had been served with Hearing Notice of that day’s proceedings (13/10/10), yet Appellant was not represented in court nor by Counsel and the Respondent was allowed to open his case – pages 141 and 143 – 146 of the Records.
He said that on 14/10/2010, the Appellant was again absent and unrepresented by counsel; that on that same date (14/10/10 the Respondent urged the court to foreclose the Appellant from the proceedings, pursuant to Order 19 Rule 11 (1) of the Federal High Court (Civil Procedure) Rules 2009, for failure to come to court despite being served with hearing notices, but the court offered to give the Appellant one more chance to be heard, thus refusing to foreclose the Appellant; he said that the court, however, ordered the Respondent’s Counsel to go and prepare his written address and serve same on the Appellant.
He referred us to page 150 of the Records.
Counsel further said that on 6/12/2010, the Appellant was still absent and so the Respondent was allowed to adopt his written address, which had been served on Appellant, and the court then foreclosed the Appellant. He submitted that Appellant cannot complain of denial of fair hearing in the circumstances and relied on the case of Nkwocha vs. MTN (Nig.) Communication Ltd (2008) 11 NWLR (pt.1099) 439 at 444; Okotcha vs. Herwa Ltd (2000) 15 NWLR (pt.690) 249;
ASR Co. Ltd vs. O.O. Biosah & Co. Ltd (1997) 11 NWLR (Pt. 527) 145.
Counsel added that the Appellant had ample opportunity to defend itself but failed to utilize same. He relied on the case of vanguard Media Ltd vs. Ajoku (2003) 11 NWLR (Pt.831) 437 and Adebayo vs. A.G. Ogun State (2008) 7 NWLR (pt. 1085) 201 AT 221 – 222.
On Issue 2, Counsel submitted that they asked for a total sum of N5,060,000,000 (Five Billion And Sixty Million Naira) but the court awarded on N49,225,950.00; that the quantum of damage suffered by the Respondent justified the amount/sum awarded; that all the findings made by the trial Court were findings of fact and the Court of Appeal will not ordinarily interfere with such findings, except it is proven to be perverse and not supported by evidence. He relied on Nsirim vs. Onuma Construction Co. (Nig) Ltd (2001) 3 SCNJ 142, Uzoechi Onyenewe (1999) 1 SCNJ 34; Oloninfemi vs. Asho (1999) 1 SCN 11
Counsel submitted that an Appellant who had failed to utilize his opportunity to be heard in a suit, and so did not defend himself, cannot turn round to complain that the damages awarded were excessive. He relied on Nkwocha vs. MTN (supra) and Vanguard Media Ltd vs. Ajoku (supra). Counsel also addressed us on the reluctance of Appellate Court to interfere with the findings of the trial court, especially relating to award of damages. He relied on Awoyale vs. Ogbunbiyi (1986) 2 NWLR (pt. 24) 626; Mogaji & Ors. vs. Odofin & Ors (1978) 3 SC 91 at 95; Leed Way Assurance Co. Ltd vs. 2 ECO (Nig) Ltd (2004) 4 SCNJ 1 at 9.
He urged us to resolve the issues against the appellant and dismiss the appeal
RESOLUTION OF ISSUE
This, indeed, is a pathetic case, which seems to be an indictment of our judicial system, having commenced about 1998, but had to move from one judicial division to another, changing name and number, and was struck out about four times and relisted as many times; passed through different judges and was heard, denovo, many times until Learned Justice F.A. Olubanjo came on board, to bring its trial to an end. And in the course of trial, as the suit lasted, the monetary claims of the Respondent, which started as N10,000,000, special and general damages (in total), grew to become a whopping, unimaginable claim of the sum of N5,060,000,000.00 (N5.06 Billion), just by repeated amendment of the claims (not that the heads of claims changed, by discovery of other damages not represented in the initial claims)!
The Learned trial Court must have taken the chequered history of the case and the outrageous monetary claims of the Respondent into consideration, when he hurried the trial and made award of N49,225,950.00 to the Respondent as special and general, damages including a whopping N23,000,000.00 aggravated damages.
Was the trial Judge right in the handling of the trial and in the award of the said amount of damages, in the circumstances? That, I believe, is the sum of the two issues raised by the parties for the determination of this appeal.
Appellant had complained that due to the chequered history of the case, as earlier stated, it lost out and was no longer aware of the movement and progress of the case, especially when one of the last Judges who heard the case, Hon. Justice C.V. Nwokorie, was removed from office, after granting Respondent leave to amend his statement claim on 16/6/2008. He argued that that court was inactive after the removal of Nwokorie J, from 2008 to early 2010; that before then, Appellant had diligently defended the suit, from Port Harcourt through Umuahia to Owerri; that Appellant did not know when the matter commenced, de – novo, before Olubanjo J; that Appellant’s then Counsel was not served with the hearing notice about the resumed sitting, when the hearing was done on 13/10/2010 and 5 witnesses were taken; that even when the case was adjourned to the next day – 14/10/2010, no hearing notice was issued to the Appellant.
Counsel for the Respondent seemed to confirm, the allegation of absence of hearing of notice on the Appellant on the hearing of 14/10/10, but argued that Appellant was served with the notice of the hearing of the 13/10/10. See pages 2 – 3 (paragraphs 3.06 and 3.07) of the Respondent’s brief where he said:
“On 13/10/10, the Court noted that there is an Affidavit of service dated 5/10/10 stating that the defendant/Appellant has been served with hearing notice of the day’s proceeding (13/10/10), yet the Appellant was not represented in Court by counsel, neither was it present in court as a party and the plaintiff/Respondent was allowed by court to open his case… On 14/10/10, the Respondent was personally in Court and represented by Counsel as well, but the Appellant was neither in court nor represented by counsel. See page 147 of the Record.”
Respondent further argued in paragraph 3.08 of his brief:
“On the same 14/10/10, Counsel that represented the Respondent urged the court to foreclose the Appellant From the proceedings… The court stated that it is minded in the interest of justice and principles of fair hearing to give Appellant one more chance to be heard… The Court ordered the Respondent’s Counsel to go on and prepare his written Address and serve same upon the Defendant/Appellant.
See page 150 of the Record”
There is no argument to challenge the fact that the hearing and entire process of the court on 14/10/2010 was done behind the Appellant, and that on that date the court even recalled the five witnesses who testified for the Respondent the previous day (13/10/10) and they gave further evidence and tendered documents. Appellant had no knowledge of the date nor of the hearing. The Respondent even had the audacity to pray that the Respondent be foreclosed from defending the case and when the Court refused, claiming to do so in the interest of justice to give the Respondent one more chance to defend the suit, the court itself seemed to breach the same right of fair hearing, when it ordered the Respondent to prepare his Address and serve same on the Appellant!
Why an order for Address, when it claimed to adjourned the case one more time for Appellant to be heard? Of course, that was pretence. Final Address can only be filed by parties at the end of trial, and by the Defendant, first. It means the court had already concluded the trial on 14/10/10, even when purporting to be adjourning to hear the Appellant!
A close study of the Records of Appeal as to what happened in court between 22/4/2010, when his Lordship Olubanjo J. took over the case, reveals some interesting facts. The last time Nwokorie J presided over the matter was on 25/2/2010, when he adjourned the matter to 22/4/2010. On that date, 24/4/10 parties were absent and only the Plaintiff’s Counsel was in Court and sought an adjournment to serve the Defendant (Appellant). No hearing notice was ordered on the Defendant.
On the 22/4/2010, the parties were also absent. Only the Plaintiff’s Counsel T.O. Ajuonuma, was present. He apologized for Plaintiff’s absence and told the Court: “there is evidence that defendant has been served with the processes filed by the Plaintiff”
Court: Case adjourned to 24/5/2010 for hearing. Hearing Notice to be served on the Defendant”
On 24/5/10 parties were absent and only the Plaintiff’s Counsel was present, and he apologized for the absence of the Plaintiff. There was no affidavit of service of hearing Notice on the Defendant, and despite that the Plaintiff’s counsel announced he had 2 witnesses in court!
“Court: Case adjourned to 22nd Jung 2010 for hearing. Hearing Notice to be served on the Defendant”
There is no record of any thing about 22/6/10, as the next recording is about 13/10/2010. On that date too 13/10/10 parties were absent and Eze Dr. Ejike Ume, SAN, with him C.B. Nnaji (Mrs) and T.O. Ajuonuma Esq., appeared for the plaintiff. There was no legal representation for the Defendant (as usual). The following were then recorded:
“NOTE: There is an affidavit of service dated 5th October 2010 stating that the Defendant has been served with Hearing Notice of today’s date. Case is for hearing.
PLAINTIFF OPENS CASE
NOTE: Plaintiff has 3 witnesses, only one is in Court.
PW 1 – Ex- in chief by Learned SAN male, Adult, affirms to tell the truth, speaks English.
NOTE: There is confusion as to how many witnesses there are.
Court asks SAN to identify his witnesses.
NOTE: SAN says they are:
(1) Chinedu Obianwu whose deposition was filed on 16/6/08
(2) Arawonye whose deposition was filed on 16/6/08
(3) Plaintiff whose deposition was filed on 16/6/08
(4) And Plaintiff Witness who is now in witness box to testify, SAN now says Arawonye’s deposition was filed on 23/08/08
NOTE: He appears to still be confused.
COURT: Case is stood down to enable Plaintiff’s Counsel put his house in order”
The case later resumed at about 9.50 am and this time the Plaintiff was in court, and the Learned SAN announced he had six witnesses in court, including the Plaintiff. The Court took five witnesses after which the Learned SAN prayed that the case be adjourned to the next day, 14/10/10, for the remaining witness. The Court obliged and adjourned the case to 14/10/10 for continuation.
There was another issue for attention, thus:
“NOTE: Court tells SAN he hasn’t tendered any exhibit. He says once the documents have been front loaded there is no need to tender any exhibit. There is a decided case on this. Court ask him to bring the said authority to court on 14/10/10 for the purpose of citing same. He now says he wants to recall the Plaintiff witnesses to tender the document. Court tells him to do so on 14/10/10.” See pages 140 to 146 of the Records.
I have already stated that there is no where that any hearing notice was ordered to be issued to the Appellant about the fixing of the continuation of hearing on 14/10/10, and the hearing of the same.
On the 14/10/10, the witnesses were recalled to tender documents and they did. The Court took 2 more witnesses and adjourned the case to 6/12/2010 “for adoption of written address. Hearing notice to be served on the Defendant.”
I strongly doubt whether what transpired at the trial Court on 13/10/10 and 14/10/10 can truly pass for a fair hearing of the protracted case, whereof the Defendant was, completely, out of touch of the suit, due to inactivity of the Court for a while. There was need for the trial Judge to take all reasonable steps to ensure that all the parties were duly put on notice about the commencement of the case before a new Judge, Olubanjo J. Even when the former Judge Nwokorie J, adjourned the case on 23/2/10 to 22/4/10, the same was not for hearing. Olubanjo J was the new Judge on 22/4/10 and on that date only the Plaintiff’s Counsel was present but the case was adjourned for hearing on 24/05/10, on which date parties were still absent, and it was obvious no notice of the hearing had been issued or served on the Appellant. The next date was 22/6/10 of which there is no record of what happened!
I think the learned trial Judge was overzealous to hear this old case, and in the course of it, breached the known rules of including the defendant in the trial or giving them a chance to be heard. Goaded by the Learned Senior Counsel for the Respondent, the Court appeared to even throw caution to the winds and actively appeared to Counsel the Plaintiff on how to conduct the case properly by reminding the Plaintiffs Counsel that he had not tendered the necessary exhibits and when the Counsel argued that it was not necessary, since the document had been front loaded already and boasted he had authority to prove it, the court insisted on seeing the authority!
The Court was therefore very happy to readily accommodate the Plaintiff (Respondent) the next day to recall the witnesses to tender the documents, when the Learned Senior Counsel must have taken the hint and applied to recall the witnesses. Neither the Court, nor the learned senior Counsel, thought about the need to accommodate the Defendant (Appellant) who knew nothing about what happened in Court on 13/10/10, to put them on notice and to involve them in the proceedings of 14/10/10, which the Court had already made up its mind, as to what would be done! And after such flagrant breach of Appellant’s right of fair hearing, the Court adjourned the case for adoption of address of the Respondent, thereby, technically, foreclosing the defence (Appellant)!
Even in a normal situation, where the defence has been served with hearing notice and they failed to honour it, and the Court is compelled to hear the case of the Plaintiff, the ideal thing to do is to adjourn the case and issue hearing notice on the defence, to come and Cross examine the Plaintiff’s witness and/or defend the suit (if the Plaintiff had called the last witness). The Court cannot jump the procedure and adjourn the case for adoption of address by the Plaintiff, excluding the defence, as if it had no case!
In law, proper service of process and notice of hearing of a cause is what vest jurisdiction on a court to hear and determine a matter for and against the parties in contention. See the case of UBA PLC v. Effiong (2011) LPELR – 8934 (CA); Mark v. Eke (2004) 5 NWLR (Pt. 865) 54, and Modahunsi v. Kwara Inv. & Property Dev. Co. Ltd (2011) LPELR – 9105 (CA) where this court held:
“Proof of service of the process on the defendant is very fundamental to the issue of jurisdiction and competence of the Court to adjudicate.”
In the case of S.P.D.C Nig. Ltd v. Esowe (2007) LPELR – 8670 CA; (2008) 4 NWLR (Pt. 1076) 72, this Court per Gumel JCA held:
“Where service of a court process is required to be made and the Court through its relevant officers (Bailiffs) failed to effect the service of the required process, that failure is a fundamental vice that could taint any proceedings subsequent to the failure to serve the process with illegality … Skenconsult v. Ukey (supra) … The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to the jurisdiction and competence of the court to go ahead with the matter. “See also Iyabo Isiak & Anor. V. Saka Opobiyi (2012) LPELR – 8540 (CA).
In the case of Fulani vs. Rafawa & Ors (2013) LPELR – 20384 (CA) ABIRU, JCA said:
“fair hearing postulates that where a person’s legal rights or obligation are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights and obligations. It is an indispensable requirement of justice, that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case.
Accordingly, a hearing can only be said to be fair, when, inter alia, all the parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. Otapo v. Sunmonu (1987) 2 NWLR (pt 58) 587; (1991) 6 NWLR (Pt. 199) 614; Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628
As I have earlier stated, the way and manner the trial was conducted by the trial court was anything but fair. I think it was a sham, arranged to suit the Respondent, hiding under the facade of effort to ensure speedy disposal of an unduly protracted matter. By so doing, a greater harm was done, which is denial of fair hearing as envisaged by Section 36 (1) of the 1999 constitution (as amended).
I think this appeal should succeed on this issue and it is no longer necessary to discuss the 2nd issue in full, other than expressing worry at the level of award of damages by the trial court without recourse to the known principles of pleadings and strict proof of special damages.
I shall not say more on this, as this case is it would be heard afresh, by a competent court, having held that the Appellant was not given opportunity to be heard.
This appeal is therefore allowed being meritorious. I hereby set aside the decision of the learned trial court in the suit No:FHC/UM/CS/07/2002, delivered on 17/2/11, and order a retrial by another Judge of the Federal High Court, other than Olubanjo J.
The parties shall bear their respective costs.
PETER OLABISI IGE, J.C.A: I have seen and read the judgment delivered by my Lord MBABA, JCA, and I fully endorse his reasoning and conclusion therein.
FREDERICK O. OHO, J.C.A: I have had a preview of the Judgment of my brother Ita George Mbaba, JCA just delivered in this appeal. He has dealt adequately with all the points and facts placed before us by learned counsel for the Appellant.
I agree with him that the Appeal be and is hereby allowed being meritorious, I hereby set aside the decision of the Lower Court in suit No. FHC/UW/CS/07/2002 delivered on 17/2/2011 and order a retrial by another Judge of the Federal High Court.
Appearances
Obiora Ibeziako Esq. For Appellant
AND
H.R.H. Eze Dr. Ejike Ume S.A.N., (who settled the brief) with him T. O. Ajuonuma Esq. For Respondent
