DANTATA & SAWOE CONSTRUCTION COMPANY LTD. v. ANGULU IBRAHIM
In The Court of Appeal of Nigeria
On Thursday, the 9th day of January, 2003
Before Their Lordships
IBRAHIM TANKO MUHAMMADJustice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWAJustice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMIJustice of The Court of Appeal of Nigeria
DANTATA & SAWOE CONSTRUCTION CO. LTD.Appellant(s)
ZAINAB A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The respondent a former employee of the appellant commenced this Suit before the FCT High Court Abuja against the appellant whereby in Suit No. FHCjHC/CV/169/95 wherein he claimed against the appellants the following reliefs vide the Writ of Summons filed on the 26th of April, 2001;
“The Plaintiffs claim is for;
1. A declaration that his purported dismissal or suspension (if any) from the employment of the defendant company is null void and of no effect.
2. A declaration that the Plaintiff is still in the employment of Dantata and Sawoe Nigeria Ltd.
3. An order directing the defendant company to reinstate the plaintiff to his status as a driver without prejudice to entitlements and promotions which, ought to have accrued to him during the said period and/or payment of his salary for the said period.
4. Cost of this action. And in an amended statement of claim vide paragraph 19 thereof, the respondent further claimed against the appellant company the sum of N1,000,000.00 (One Million Naira only) damages for false imprisonment and wrongful termination appointment.
Pleadings were duly filed and exchanged. The respondent adduced evidence and closed his case on the 7/5/97. After series of adjournment and on the oral application of Counsel for the respondent the appellant’s case was closed on the 1/12/97 and respondent’s Counsel addressed the court thereafter and the case was adjourned to the 28/1/98 for judgment. Appellant filed a Motion of Notice on the 9/1/98 seeking for an order of extention of time within which the defendant can defend the suit. The motion was never moved before the court and on the 12/3/98 the lower court delivered judgment for N52,810.00 as damages against the appellant.
The appellant being aggrieved has now appealed to this court on these grounds of appeal which are produced hereunder;
GROUND OF APPEAL:
1. The learned trial judge erred in law when he refused to hear the appellant’s Motion on Notice seeking leave to defend the Suit before giving his judgment.
(i) The appellant’s Motion of Notice of 4/12/97 seeking for leave to defend the Suit filed on the 9/1/98 long before the trial court’s judgment of 13/3/98
(ii) The trial court ought to hear and rule on the said Motion before delivering its judgment in the Suit.
(iii) The appellant is entitled to hear (sic) on the said, motion before judgment can be entered against him in the suit.
2. The learned trial judge erred in law by denying the appellant his right of fair hearing when he did not give counsel the opportunity to address the court in the case before giving judgment.
(i) The appellant was entitled to address the court after its case was closed by the trial court.
(ii) The appellant was not given the opportunity to address the court before judgment in the case was delivered.
3. The learned trial judge erred in law by awarding N50,000 to the respondent for unlawful prosecution when;
i) The Respondent in this amended Statement of Claim claimed N1,000,000.00 damages against the appellant for false imprisonment and wrongful termination.
(ii) The respondent did not claim for unlawful prosecution
(iii) The court is not a charitable organization to distribute reliefs to unsolicited victims.
4. The judgment is against the weight of evidence.
The appellant filed his brief of argument on the 17/7/98 and though the respondent was duly served with the brief he failed to respondent by filing a brief of argument. This court on the 16/5/2000 granted an application duly brought by a Motion on Notice by the appellant that the appeal be heard exparte after being satisfied that the respondent has been served both with the appellants briefs and the Motion on Notice. This appeal will therefore be determined on the appellant’s brief alone.
From the four grounds of appeal the appellant had formulated three issues for determination to wit:
1. Whether the appellant was given a fair hearing by the lower court.
2. Whether the court can award reliefs(s) not claimed by the Respondent.
3. Whether the Respondent in all the circumstances of the suit was entitled to any damages at all.
On issue one it was contended for the appellant that he was not given a fair hearing by the learned trial judge for having been absent and not represented by counsel when the case was adjourned for judgment and having filed a motion on the 9/1/98 seeking for leave and or extension of time to defend the suit, the lower court delivered judgment on 12/3/98 without hearing or considering the motion. That the motion having been filed in court and the respondent having been duly served with same the learned trial judge was bound to hear and rule on the motion before proceeding to give his judgment in the suit, that this is so whether or not the motion has any merit or otherwise. He contends that the principle of fair hearing demands that a trial judge must hear both parties in a suit before him.
The appellant submit that where a persons legal right or obligation are called into question he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such right or obligation.
That 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 cases.
Hearing can therefore, only be said to be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the alteram partem rule.
He relied on the cases of UDO-AKAGHA VS PAKO LIMITED 1993 4 NWLR Part 228 434 at 437; OLUMESAN VS OGUNDEPO 1996 2 SCNJ 172 at 174 OBODO VS OLOMU & ANOR 1987 6 SCNJ 74 ADIGUN VSA.G. OF OYO STATE 1989 1 NWLR Part 53 678 DEDUWA VS OKORODUDU 1976 10 SC 329 on this issue it was ala the contention of the appellant that the learned trial judge violated the rules of proceeding by denying the appellant the opportunity of addressing the court before the deliberation of judgment in the suit. He pointed out that when the respondent testified he was cross examined by the appellant counsel.
On 7/5/97 the respondent closed his case, on 1/12/97 the court closed the appellants defence and respondent counsel addressed the court on the same date. The case was then adjourned for judgment on the same date without giving the appellant the opportunity of also addressing the court even though appellant counsel was in court on the day judgment was delivered. Relying on the provisions of Order 37 Rules 17(2) to 22 of the High Court Civil Procedure Rules of Abuja 199 the appellant submit that for taking part in the trial by cross-examining the respondent and his witnesses the appellant has a right of addressing the court before judgment. That the denial of such a right renders the whole proceedings a nullity and puts reliance on the cases of:
ABILAWON AYISA VS OLAOYE AKNJI ” ORS 1995 7 SCNJ 245 OBODO VS. OLOMU & ANOR (SUPRA) AYISA VS AKANJI (SUPRA).
The records of the lower court showed that after pleadings were duly filed and exchanged by the parties, the respondent was granted leave to amend his statement of claim on the 27/6/95. Hearing in the case commenced on the 23/11/95 and both parties were represented by counsels when the respondent as PW1 testified. On 8/2/96 when PW1 continued with his testimony both counsels were in court and the appellant was granted leave to amend his statement of defence and the case adjourned for cross examination: of the PW1. On 17/4/96 counsel to appellant was not in court and the case was further adjourned. On 11/7/96 the case could not go on as the respondent was absent and was only cross-examined on 16/9/96 when the court reconvened. On 24/10/96 both the appellant and his counsel were absent and the case was further adjourned. On 4/2/97 both counsels were in court and the Plaintiff closed his case and the case adjourned to 12/6/97 for defence. On that day only counsel to the respondent was in court and the case was further adjourned to 24/7/97 for defence.
The case came up on the 2/10/97 and both parties and their counsels were absent and the case was adjourned to 28/10/97 for defence. On 28/10/97 the parties were absent but their counsels were present and the case was further adj. to 1/12/97 at the instance of the defence counsel, cost was awarded in favour of the plaintiff and the defendant given the last chance to present his defence.
On 1/12/97 only the plaintiff and his counsel were in court and the court closed the case for the defendant and heard address of counsel for the plaintiff and adjourned the case for judgment to the 28/1/98.
On 9/12/97 the defendant filed a Motion on Notice for an order of the lower court suspending the judgment to be delivered in the case on 28/1/97 pending the hearing of the defendant’s defence and for an order of the lower court granting leave to the defendant to call his witnesses in defence of the case.
The motion was not moved when judgment was delivered on the 12/3/98.
I have chronicled the sequence of events above in the court below in order to see whether the defendant was deligent in the prosecution of his defence or to see whether as he claimed he was not given an equal chance to put in his defence and to address the court.
The plaintiff closed his case after testifying as PW1 and his cross-examination by the defence counsel on the 7/5/97, and the case was adjourned to the 12/6/97 for the defence. On that day neither the defendant nor/his counsel were in court and the matter was adjourned for defence. On the application of the Plaintiffs counsel to the 24/7/97. There was nothing on record to show whether the defendant was served with a hearing notice to appear on that day, in any case the matter didn’t come up until the 28/10/97 when both parties and their counsels were absent and the matter was again adjourned to 28/10/97.
When the case came up on that day counsel to defendant asked for an adjournment as his witness has supposedly travelled to Lagos on an official trip and he was given the last chance to present his defence and the matter adjourned to 1/12/97.
When neither the defendant or his counsel were in court on that day the court by virtue of the provisions of Order 37 Rule 7 of High Court Civil Procedure Rules of the FCT 1991 closed the case for the defence and asked the plaintiff’s to address it and the case was adjourned for judgment.
The lower court could have at that staged entered a default judgment for the plaintiff as provided for by the rules. But having been addressed by the plaintiff it would have been fair to have been addressed by the defendant before judgment in the case is delivered.
In any case Order 37 Rule 9 Supra provides;
“9. Any judgment obtained where on party does not appear at the trial may be set aside by the court upon such terms as may seen just, upon an application made within six days after the trial or within such longer period as the court may allow for good case shown.”
In the instant case the defendant had timeously filed an application for the suspension of the judgment and allowing the defendant to defend the action which was never considered by the trial judge. This is a clear infringement of the defendant’s right to fair hearing.
If is trite that one of the cardinal principles of our judicial system is the principle of fair hearing. The criteria and the, attribute of fair hearing include the following;
1. that the court hears all the parties to a case in all material issues before reaching a decision which may be prejudicial to any party in the case;
2. that the court gives equal treatment, equal opportunity and equal consideration to all the parties;
3. that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See KOTOYE VS CENTRAL BANK OF NIGERIA 1989 1 NWLR (Part 98) 4 19 ADIGUN VS AG OF DYO STATE 1989 1 NWLR Part 53 678 DEDUWA VS OKORODUDU 1976 10 SC 329.
In the circumstances of the instant case the above criteria which are the attributes of fair hearing were not followed. The defendant appellant was not given a chance to defend the action by the lower court.
The right to fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trial nullifies the trial. See ADIGUN VS G.A. OYO STATE (SUPRA) Per ESO JSC at 721.
“Natural justice demands that a party must be heard before the case against him is determined. Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness, before the case against his continued stay in the Garden of Eden was determined against him.”
In the circumstances the first issue must be resolved in favour of the appellant and I so find.
The second issue on this appeal is as to whether a court can award reliefs not claimed by the respondent.
By an order of the court granted on the 27th of June 1995 the respondent amended his statement of claim and the claim of the respondent as per paragraph 19 thereof is;
“By virtue of the foregoing premises, the plaintiff therefore claim again the defendant company the sums of N1,000,000.00 (One Million Naira only) damages for false imprisonment and wrongful termination of appointment”
The trial court in its judgment at page 26 of the records entered judgment for the respondent thus.
“this court has awarded to the plaintiff damages in respect of this prosecutor of the sum of N50,000.00)
The above clearly shows that while the respondent was claiming for damages for false imprisonment and wrongful termination what the court awarded him was damages for wrongful prosecution.
A trial court is always restricted to what is claimed before it, it has no power to grant to a party what it has not asked for, in other words it has no power to award more than what is claimed.
See OHIARA VS OHIARA 2002 16 NWLR part 794 607.In the instant case the claim of the respondent is for damages for false imprisonment and wrongful termination while what was awarded by the court was damages for wrongful prosecution.
This cannot be and the second issue must also be resolved in favour of the appellant.
The third issue is whether the respondent in all the circumstances of this case was entitled to any damages at all.
Without going into the merits or demerits of the findings of the lower court in view of my conclusion on the first issue in this appeal, I will further reiterate that a trial court must base its findings on the evidence put before it and most importantly on the claim for it cannot award to a party what he has not claimed.
On the whole this appeal must succeed for the trial court had failed to give the appellant the chance of being heard. A breach of the right to fair hearing by a court on a party is very fundamental and it vitiates or nullifies the whole proceedings. It cannot in any way be salvaged and becomes null and void ab initio.
See CEEKAY TRADERS LTD VS GENERAL MOTORS CO LTD 1992 2 NWLR Part 222 132.
In the circumstances this appeal is allowed. The decision of Bage J delivered on 12/3/98 is hereby nullified and set aside. The case is remitted to the High Court of the FCT for retrial before another judge.
In view of the history of this case I will order that each party bears the cost of this action.
IBRAHIM TANKO MUHAMMAD, J.C.A.: I have had the advantage of reading the judgment of my learned brother Bulkachuwa JCA. I agree with the conclusions reached. The appeal lacks merit as the proceeding of the lower court was a nullity. I remit the appeal to the FCT High Court for a retrial by another judge apart from Bage J. Each party co bear own costs.
ALBERT GBADEBO ODUYEMI, J.C.A.: I have had the opportunity of reading in advance the judgment in this appeal which has just been delivered by my Lord BULKACHUWA J.C.A.
I agree that the appeal has merit and ought to be allowed.
I allow the appeal. I abide the order as to costs.
Valantine OgarFor Appellant