DANISH CAR CARRIERS & ANOR. V. FERIKSON SURA & CO. (NIG.) LTD. & ANOR.
(2011)LCN/5027(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of February, 2011
CA/L/922/08
RATIO
THE ELEMENTARY PRINCIPLE OF LAW ON A JUDGMENT OR ANY DECISION OF A COURT OF LAW
It is an elementary principle of law that judgment or any decision of a court of law could only be written by the particular judge who conducted the trial proceedings and heard the entire evidence, having had the opportunity of observing the demeanor of the witnesses during their testimonies before him. Archibong, J who took over the case after conclusion of the trial ought to have heard the case de novo. Judgment must be based upon sound and credible evidence heard by the particular judge who writes it, otherwise it will be no more than a moot trial. My learned brother Amaizu, JCA has made a similar observation in the case of Agbeotu v. Brisibe (2005) 10 NWLR (Pt.932) 1 at pp.18 – 19 paragraphs E-A; 38 paragraph C. The learned Jurist stated thus:- “It is important that all the members of the court which gives judgment must have taken part in the whole trial and must have heard all the evidence. The constitution of the court which hears the case must remain the same throughout the trial. PER. HUSSEIN MUKHTAR, J.C.A.
THE STATUTORY PROVISION ON CIRCUMSTANCES WHERE THE WITNESS IS INCAPABLE OF COMING TO COURT
The trial conducted by the previous judge ceases to be relevant in the proceedings except in such circumstances as provided under Section 34 of the Evidence Act cap E14 L.F.N. 2004 which provides thus:- “Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable'” PER. HUSSEIN MUKHTAR, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. DANISH CAR CARRIERS
2. SIFAC (NIG.) LTD. Appellant(s)
AND
1. FERIKSON SURA & CO. (NIG.) LTD.
2. DR. E.O. SIBEDU Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal challenges the judgment of the Federal High Court, Lagos (the lower court) delivered by Hon. Justice C.E. Archibong on the 28th July, 2008, which was entered in favour of the respondents (plaintiffs) based on the evidence adduced before Hon. Justice Olomojobi.
The respondents claim against the appellants, at the lower court was for the sum of DM18,258.00 Deutchemark or its Naira equivalent at the prevailing exchange rate at the date of judgment, and N2,231,126:00 with 21% interest from November 2001 till judgment and settlement thereof. (See page 69 of the record).
After filing and exchange of pleadings, the matter proceeded to trial before Hon, Justice Olomojobi. The respondents called one witness in person of the 2nd plaintiff/respondent and tendered twenty two exhibits to prove their claim. The appellants/defendants similarly called one witness in their defence without tendering any exhibit. Both parties concluded their evidence and closed their cases before Hon. Justice Olomojobi, who ordered both parties to file and exchange written addresses and fixed 21st June, 2007 for adoption of the written addresses. The plaintiffs, however, could not file their written address until the learned trial judge (Hon. Justice Olomojobi) retired from service. The case was then re-assigned to Hon. Justice C. E. Archibong.
On the 21st April, 2008 the respondents’ (plaintiffs’) counsel Donald Ibebuike Esq. (at pages 124-125 of the record) told the court thus:-
“We had already finished evidence. We had done the trial and have filed written addresses. We are yet to adopt same before the then Justice Olomojobi presiding retired.”
The learned trial judge without hearing counsel for the appellants (respondents) immediately replied thus:-
“We shall not be giving the parties a second trial. We direct that parties settle with records filed and serve addresses within 10 weeks.
Case adjourned to 16th June, 2008 for adoption of written addresses.”
Subsequently both parties filed and exchanged written addresses, as directed by the learned judge who just took over the case, and adopted same on 16th June, 2008. (See pages 166 – 167 of the record).
The learned Judge reserved judgment which he delivered on the 28th July, 2008. (See pages 210-226) of the record).
The appellant being dissatisfied has appealed against that judgment by filing a notice of appeal dated and filed on the 19th August, 2008 (pp.237-242 of the record) premised on six grounds as reproduced hereunder less the particulars thereof:
“1. The learned trial judge erred in law when having taken over a part-heard suit from a judge who retired he declined to commence the trial de novo but continued the proceedings and delivered judgment in a case in which he did not hear evidence.
2. The trial judge erred in law when he failed to consider and give effect to the terms of the contract of carriage of goods by sea between the plaintiffs and the 1st defendant which terms are contained in the Bill of Lading No. 156235 (Exhibit A) and thereby occasioned miscarriage of justice particularly against the 2nd Defendant when he found her liable jointly with the 1st defendant.
3. The learned trial judge erred in law when he failed to consider fundamental issues of law properly placed before the court by the defendants which issues are contained in the defendants final address dated 8th May, 2008 and defendants reply on point of law dated 12th June, 2008 and hereby occasioned miscarriage of justice on the defendants.
4. The learned trial judge erred in law when he held as follows:-
‘The plaintiffs’ speculation in Exhibit U do not negate or shift the defendant’s responsibility under the Bill of Lading No. LA15 – 6235 of 7th January, 2002 and I so find. I also find that the defendants do not rebut the presumption that the vehicle in question was loaded into their vessel and embarked in the voyage in question from Antwerp to Lagos, and in any event they are to be held responsible and accountable for the non-discharge of same and delivery up of same to the plaintiffs in Lagos; and in reliance on the statements awarded the sum N1,135,126 as special damages for the plaintiffs.’
5. The learned trial judge erred in law when he held thus:-
‘I do not consider the expenses involved in any travel to Port-Harcourt Warri, Cotonou to be adequately proved or established nor indeed expenses relating to telephone calls, fax messages, personal correspondence with shippers and carriers. But I will give damages general in nature for general inconvenience, negligence and breach of contract” and thereafter awarded the sum of N2,000,000: to the plaintiffs as general damages.’
6. The learned trial judge erred in law when he awarded interest on the judgment sum to the plaintiffs at the rate of 21% per annum from November 2001 till date of judgment and settlement thereof.”
At the hearing of the appeal both parties adopted their briefs of argument. The learned counsel for the appellant Lateef Imam-Lawal, Esq. raised five issues for determination, which were also adopted by the learned counsel for the respondent Adaobi C. Eze, Esq. as follows:
1. Whether having taken over the suit as a part-heard case from a Judge who retired after hearing evidence from witnesses, the learned trial Judge, considering the peculiar facts of this case ought not to commence the trial de novo rather than continue the proceeding and to deliver judgment in the case in which he did not hear evidence.
2. Whether the failure of the learned trial Judge to consider the fundamental issues of law properly placed before the court which issues are contained in the defendants’ final address dated 8th May, 2008 and defendants’ reply on points of law dated 12th June, 2008 did not occasion miscarriage of justice on the defendants.
3. Whether considering the contents of Exhibit U and the terms of contract of carriage of goods by sea between the plaintiffs and the 1st defendant which terms are contained in Bill of Lading No. LA 156235 (Exhibit A) the defendants are liable either jointly or severally for the non-discharge and delivery up of the Mercedes Benz 230E to the plaintiffs in Lagos.
4. Whether the trial Judge was right in awarding N2,000,000.00 (Two Million Naira) as general damages to the plaintiffs for general inconvenience negligence and breach of contract.
5. Whether the learned trial Judge was right in law in awarding interest on the judgment sum to the plaintiff at the rate of 21% per annum from November 2001 till the date of judgment and settlement thereof.
On the first issue for determination the appellant’s counsel submitted that the trial proceedings having been conducted by Hon. Justice Olomojobi, could not have been adjudicated upon by Hon. Justice Archibong, but that the latter ought to have heard the case de novo. He relied on Order 35 rule 4 of the Federal High Court (Civil Procedure) Rules 2000 which the learned trial judge also considered in the judgment and held that it does not require the court to hear the case de novo.
The said order 35 rule 4 provides thus:-
“Where a judge retires or is transferred to another division and having a part-heard cause or matter that is being reheard de novo by another judge, the evidence already given before the retired judge or the judge being transferred out of the division can be read at the re-hearing without the witness who had given it being recalled; if the witness is dead or cannot be found but the onus of establishing that the witness is dead or cannot be found shall lie on the party that wishes to use the evidence.”
The provision, it was submitted, requires the new judge to hear the case de novo. The appellants’ counsel further relied on Section 23 of the Federal High Court Act, Cap F12, L.F.N 2004 which provides thus:-
“Every proceeding in the court and all business arising therein shall, so far as is practicable and convenient and subject to the provisions of any enactment or law, be heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial, down to and including the final judgment or order, shall, so far as is practicable and convenient, be taken before the judge before whom the trial or hearing took place.”
It was submitted further that Section 23 of the Federal High Court Act makes it mandatory for trial proceedings up to judgment to be taken by a single judge. The rules only allow a judge rehearing a case de novo to use evidence given before another judge by reading out such evidence at the rehearing of the case, if such witness is dead or cannot be found and the onus is on the party wishing to use such evidence to establish that the witness is dead or cannot be found.
The appellants’ counsel observed that it was not only practicable but also convenient for Hon. Justice Archibong to hear the case de novo and determine same in accordance with the law. In the case of Calabar CCT and C Soc. Ltd v. Ekpo (2008) 25 WRN 25 at 36 the Supreme Court per Niki Tobi, JSC observed thus:-
“A court of law cannot ignore provisions of a statute which are mandatory or obligatory and tow the line of justice…”
The respondents’ counsel noted that the appellants’ counsel who appeared in the court below on 21st April, 2004 did not invite the court to hear the case de novo. He relied on the pronouncement of this court in Bassey v. Robertson (1999) 2 NWLR (Pt 589) 9 where circumstances for ordering trial de novo were enumerated. However, the situation in this case is different. While in Bassey’s case the Court of Appeal considers desirable situations for ordering trial de novo, in this case the germaine issue is whether evidence taken by one judge who retires from service could be adopted by another judge to whom the case was re-assigned and deliver judgment without hearing witnesses or taking evidence in the matter. The principle in Bassey v. Robertson (supra) is therefore, inapplicable to the facts and circumstances of the instant case.
The respondents’ counsel also observed that the trial at the lower court had been concluded and there was no outstanding issue or apparent irregularity on the face of the record to warrant trial de novo. The learned counsel for the respondent has, however, not addressed the issue as to whether Hon. Justice Archibong could write and deliver judgment in respect of trial conducted by Hon. Justice Olomojobi.
It is pertinent to appraise the provision of Order 35 Rule 4 of the Federal High Court (Civil Procedure) Rules. That particular rule requires a Judge of the Federal High Court who takes over a case partly heard by another judge, to hear the case de novo and while doing so, evidence already given before the previous judge may be read at the rehearing de novo without the witness being recalled, if it is impossible or otherwise impracticable to secure the attendance of such witness, such as when the witness is dead or cannot be found. The responsibility of establishing the preconditions for this procedure is on the party who alleges that the witness is dead or cannot be found. This provision is in conformity with Section 23 of the Federal High Court Act which requires every proceeding in the court to be heard and disposed of by a single judge including final judgment.
It is an elementary principle of law that judgment or any decision of a court of law could only be written by the particular judge who conducted the trial proceedings and heard the entire evidence, having had the opportunity of observing the demeanor of the witnesses during their testimonies before him. Archibong, J who took over the case after conclusion of the trial ought to have heard the case de novo. Judgment must be based upon sound and credible evidence heard by the particular judge who writes it, otherwise it will be no more than a moot trial. My learned brother Amaizu, JCA has made a similar observation in the case of Agbeotu v. Brisibe (2005) 10 NWLR (Pt.932) 1 at pp.18 – 19 paragraphs E-A; 38 paragraph C. The learned Jurist stated thus:-
“It is important that all the members of the court which gives judgment must have taken part in the whole trial and must have heard all the evidence. The constitution of the court which hears the case must remain the same throughout the trial. In the instant case, it is claimed that one of the judges in the panel was not present when the 1st respondent gave evidence and he took part in writing judgment. Such issue where proved renders the judgment a nullity.”
One wonders how a judge who has not heard evidence during trial could write judgment based on evidence which he simply read in the file.
The learned judge who never was a trial judge in this case was in serious blunder by merely writing and delivering judgment in respect of a case heard by another judge.
A trial judge must hear evidence in court, assess the witnesses who testified before him, form impression about them and evaluate their evidence in the light of such impression. Failure to take evidence afresh had effectively reduced the foundation upon which the judgment was based to hypotesy.
While the lower court, in considering the evidence adduced during trial, puts evidence of each party on the imaginary scale in order to assess the weight of such evidence, there is nothing like imaginary platform upon which judgment could be based. A judge must, therefore, conduct trial before going ahead to write and deliver judgment.
The trial conducted by the previous judge ceases to be relevant in the proceedings except in such circumstances as provided under Section 34 of the Evidence Act cap E14 L.F.N. 2004 which provides thus:-
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable'”
The lower court was in grievous error by adopting such peculiar and lazy procedure of one judge who did not conduct trial simply using evidence in trial conducted by another judge to prepare and deliver judgment.
Hon. Justice Archibong ought to have heard the case de novo to enable him hear and assess the witnesses and the entire evidence adduced before him or even before the previous judge if it complies with Section 34 of the Evidence Act or Order 35 Rule 4 of the Federal High Court (Civil Procedure) Rules. The adoption by one judge of the evidence heard by another judge for the purpose of short circuiting the judgment, which becomes the subject of this appeal was a complete nullity in law. This issue is therefore resolved in favour of the appellant and consequently ground one of the appeal succeeds.
Having resolved the first issue in favour of the appellants and having determined that the judgment of Archibong, J is a complete nullity, the remaining four issues 2 to 5 have consequently been reduced to mere academic questions. The court will not delve in to mere academic exercises. The resolution of issue one has scored a pass mark for this appeal. The appeal is meritorious and accordingly succeeds per force and same is hereby allowed. The judgment of Archibong, J delivered on the 28th July, 2008 is hereby set aside. In its place, it is ordered that the case be remitted to the Chief Judge of the Federal High Court for fresh hearing de novo and determination thereof by another judge of that court.
There shall be no order as to costs.
BATA OGUNBIYI, J.C.A.: I agree with my brother Hussein Mukhtar JCA that this appeal has merit and should therefore be allowed. The case should appropriately be remitted to the Chief Judge of the Federal High Court for fresh hearing denovo. I also abide by the order made as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: In this appeal, the Appellant complains against the judgment of the trial court wherein the evidence adduced before a previous Judge, Hon. Justice Olomojobi, who had retired from the Bench was used by the trial Judge that took over the matter – in that he simply ordered that the parties settle with records already filed and counsel to file their addresses within 10 weeks and then the trial Judge gave his Judgment based upon the addresses that were filed before him stemming from the processes filed in court, including evidence on record, which was not given before him.
The facts of the case and proceedings leading to this appeal and the grounds of appeal including all the issues formulated have been so meticulously considered and treated by My Lord, Mukhtar, JCA in the read Judgment that I cannot but adopt his view that the trial Judge was wrong in not conducting a trial de novo as the evidence given earlier before another Judge was only relevant in a subsequent judicial proceeding in proof of the truth of the facts therein where the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstance of the case, the court considers unreasonable. See: section 34 of the Evidence Act, Cap. E14 LFN 2004. The use of the evidence of witnesses not taken before a Judge and the non-compliance with order 35 Rule 4 of the Federal High court civil procedure rules that require the hearing of the case de novo rendered the Judgment appealed against a nullity.
The trial judge who took no part in the hearing of the evidence could not validly render a Judgment thereon. See AGBAOTU VS. BRISIBE (2005) 10 NWLR (PART 932) 1 at 18 – 19. The Judgment was also not in accord with section 23 of the Federal High court Act that requires that the hearing and Judgment where practicable shall be taken before the same Judge. For the foregoing reasons and the more detailed and lucid reasons contained in the lead Judgment I, too, agree that this appeal has merit and should be allowed.
The impugned Judgment is set aside and the appeal allowed, I also abide by the consequential order for a retrial de novo before another Judge and the order as to costs as made in the lead Judgment.
Appearances
Lateef Kram-LawalFor Appellant
AND
L.C. Ilogu With Adaobi EzeFor Respondent
