DHL INTERNATIONAL NIG. LTD. V. MR. SEGUN APATA
(2011)LCN/5049(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of June, 2011
CA/I/218/2004
RATIO
THE HEARING OF ADDRESSES BY EVERY COURT
In FORCADOS OVO OBODO V. STAFFORD OLOMU & ANOR (1987) 3 NWLR (PART 59) page 111 at pages 123-124 the Supreme Court of Nigeria per Obaseki JSC said as follows – “The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the judge is enormous and unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can.” It should be noted that section 258(1) of the 1979 Nigerian Constitution is in pari materia with section 294(1) of the 1999 Nigerian Constitution. In this case the Supreme Court held that the denial of a Plaintiff’s Counsel the opportunity of addressing Court is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing which renders the proceedings a nullity. This is so because according to the Supreme Court in ABUBAKAR DAN SHALLA V. THE STATE (2007) 18 NWLR (PART 1066) 240 at 290, a Counsel’s address (in this case the Defendant’s Counsel) forms part of the case of the Defendant. Counsel therefore cannot and should not be pressured or denied that right of address except Counsel chooses to abandon or jettison the address. It is amazing how Counsel for the Respondent has tried to import irrelevant material to score a point. For example in paragraph 4.13 at page 16 of the Respondent’s Brief of Argument the Respondent submitted as follows – “The rule of fair hearing does not compel the Court to force a party to be heard. Once a litigant is given an opportunity to be heard it is enough.” ATT. GEN. OF OYO STATE V. FOLAYAN (supra). PER. STANLEY SHENKO ALAGOA, J.C.A.
THE TRUE TEST OF FAIR HEARING
See ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 at 426 which is the locus classicus on fair hearing, wherein it was stated by Ademola CJN- “That the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.” Once it has been established that there was a denial of fair hearing in a case that case fails as one cannot put something on nothing and expect it to remain there. PER. STANLEY SHENKO ALAGOA, J.C.A.
THE POSITION OF THE LAW ON THE ISSUE OF FINAL ADDRESS IN A CIVIL ACTION
The issue of final address in a civil action is constitutional. Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, guarantees the said right, which is the re-incarnation of section 258(1) of the former Constitution of the Federal Republic of Nigeria, 1979. The right in question appears to me to have root in the entrenched fundamental right to fair hearing provision under section 36(1) of the 1999 Constitution, as amended see by analogy F.B.N. Plc v. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247. Therefore, the right of final address in a civil action should not be tossed aside; but the opportunity of exercising it must be given to the parties involved in the litigation. No matter the protracted nature of the proceedings, the opportunity to exercise the right should be made available to the warring parties. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A
Before Their Lordships
STANLEY SHENKO ALAGOAJustice of The Court of Appeal of Nigeria
MODUPE FASANMIJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
Between
DHL INTERNATIONAL NIG. LTD.Appellant(s)
AND
MR. SEGUN APATARespondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ibadan, Oyo State of Nigeria the Plaintiff now Respondent claimed against the Defendant in paragraph 22 of the statement of claim dated the 26th February 2001 as follows:-
(1) The sum of N6,363.00 (Six thousand three hundred and sixty three Naira) only being money had and received by the Defendant from the Plaintiff for services which they the Defendants failed and or neglected to render.
(2) N250,000.00 (Two hundred and fifty thousand Naira) only cost of the content of the parcel.
(3) N15 million (Fifteen million Naira) only being damages for loss of reputation in the eyes of his client, loss of business and inconveniences suffered by our client as a result of your negligent act and or breach of contract entered into by the Defendant to deliver the Plaintiffs parcel for a fee which the Plaintiff paid.
Pleadings having been filed were exchanged by the parties and the case proceeded to be heard. The Plaintiff’s case in the Court below is that he is a businessman engaged in Art works which includes carvings, painting, smith, casting etc which he sells in Nigeria and abroad.
On the 23rd October 2000 he approached the Defendant a courier and express services business outfit to send a parcel to New York USA for a fee of N6,363.00 (Six thousand, three hundred and sixty three Naira) which the Plaintiff paid in the belief that the parcel would be safely delivered to its destination. He obtained a receipt after payment. One Adewumi Ajayi to whom the parcel was to be delivered in the USA telephoned Plaintiff’s client to say that he had not received the parcel. On receipt of this complaint the Plaintiff complained to the Defendant who in its letter of the 7th December 2000 accepted responsibility for the lost parcel. Plaintiff asked his lawyers to write to the Defendant demanding cost of the parcel and damages for breach of contract and loss of reputation. In reply the Defendant accepted responsibility for the loss but referred the Plaintiff to Clause 13 on the back of the receipt issued to him. The Plaintiff averred that up to the time the Receipt was issued to him his attention was not drawn to the said clause. Adewunmi Ajayi Plaintiff said, cancelled any further business with him leading to Plaintiff’s loss of revenue and reputation with his business partners. Plaintiff averred that the Defendant was negligent in handling his parcel. He also averred that he had orders to supply more of his products as soon as the first one was received but that the first one was never received due to the negligent act of the Defendant. As a result of the above occurrence the Plaintiff averred that he suffered great loss of profit, cost of the missing parcel and the cost paid for its delivery which was never done hence the institution of the action in the Court below. At the end of evidence for the parties the matter came up for addressees by Counsel on the 19th February 2004. The Court below rejected the written request for adjournment of Defendants’ Counsel who was not in Court to present his address, took the address of the Plaintiff’s Counsel who was present in court and adjourned for judgment. In its judgment delivered on the 26th February 2004, the Court held as follows-
“In the final analysis the claim of the Plaintiff succeeds and I hereby award the following damages in favour of the Plaintiff against the Defendant –
(1) A sum of N6,363.00 being money had and received by the Defendant from Plaintiff from services which the Defendant failed or neglected to render.
(2) A sum of $100.00 being in respect of the Plaintiffs shipment to U.S.A. as provided by Exhibits A and D headed DHL Worldwide Express Terms and Conditions of Business.
(3) A sum of N300,000 being general damages suffered by the Plaintiff as a result of breach of contract and negligence of the Defendant by non delivery of the shipment of the Plaintiff to the Consignee in U.S.A.
It is this judgment that has been appealed against by the Defendant in a Notice of Appeal dated the 4th March 2004 and contained at pages 46-51 of the Record of Appeal, the grounds of appeal of which are stated below without particulars –
(i) The Learned trial Judge erred in law when he assumed jurisdiction over this suit notwithstanding that the cause of action arose from a contract for the shipment of goods by air, an admiralty matter within the exclusive jurisdiction of the Federal High Court.
(ii) The Learned trial Judge erred in law when his lordship wrongly exercised his discretion on the 19th February, 2004, by denying the Defendant’s Counsel an adjournment on health ground; thereby foreclosing the right of Counsel to sum up the Defendant’s case before judgment.
(iii) The Learned trial Judge’s decision to foreclose the right of the Defendant to sum up its case before judgment is perverse.
(iv) The Learned trial Judge erred in law when he made a finding of fact in the final judgment that the agreed terms and conditions of carriage of the shipment in issue in this suit are as contained on Airway Bill No. 3624156675 that covers the shipment and its restatement of Exhibit D but failed to give effect to its clause 13 (exemption clause) on the grounds that it was unreasonable.
(v) The Learned trial Judge erred in law by considering an issue that was not submitted by both parties to the Court when he held in the final judgment that clause 13 was unreasonable and cannot be given effect.
(vi) The learned trial Judge erred in law when he held in the final judgment that the Plaintiff’s claim in negligence and breach of contract succeeds without a finding on the issue of damages joined by the parties.
(vii ) The learned trial judge erred in law when he held in the final judgment that the breach of duty of care and/or contract, the plaintiff suffered damages.
(viii) The Learned trial Judge erred in law when he awarded in favour of the plaintiff the sum of six thousand three hundred and sixty three naira (N6,363.00) being the costs of carriage of the lost documents and that the sum of three hundred thousand naira (N300,000.00) as general damages in addition to the agreed limit of liability of the Defendant on the contract (sic) One hundred United States Dollars ($100) in the final Judgment.
The following were the issues distilled from the grounds of Appeal by the Appellant in his Brief of Argument in paragraph 3 at page 5 –
1. Whether the Learned trial Judge was right in foreclosing the Appellant’s right to present its final address.
2. Whether the Learned trial Judge was right in refusing to give effect to the Limitation/Exemption Clause contained in Exhibits A and D on the ground that they are unreasonable having found that there was a valid courier service contract between the parties.
3. Whether, based on the pleadings and evidence before the Court, the learned Trial Judge was right in awarding the sum of N306,363.00 general damages to the Respondent.
The said Appellant’s Brief of Argument is dated the 1st June 2009 and filed on the 4th June 2009 but by an order of this Court deemed properly filed and served on the Respondent on the 5th June, 2009 following an application for extension of time brought by the Appellant to extend time to file his Brief of Argument which application is dated the 2nd June 2009 and filed on the 4th June 2009.
The following issues were formulated by the Respondent in paragraph 3 at page 13 of the Respondent’s Brief of Argument dated the 11th January, 2010 and filed same day –
1, Whether the trial High Court was right in foreclosing the Appellants’ right to present its final address.
2. Whether the Learned Trial Judge was right in refusing to give effect to the Limitation/Exemption Clause contained in exhibits A and D on grounds that they are unreasonable having found that there was a valid courier service contract between the parties.
3. Whether based on pleadings and evidence before the court, the Learned Trial Judge was right in recording the sum of N306,363,00 (Three hundred and six thousand, three hundred and sixty three naira) only as damages to the Respondents.
The appeal came up for hearing on the 21st March 2011 with Counsel for the parties adopting and relying on their respective briefs of argument. A. Nwagwu for the Appellant urged us to allow the appeal while Uche Amajo for the Respondent urged us to dismiss same. The Respondent adopted the issues formulated by the Appellant as theirs and they are as follows:-
1. Whether the trial High court was right in foreclosing the Appellants’ right to present its final address.
2. Whether the Learned Trial Judge was right in refusing to give effect to the Limitation/Exemption clause contained in exhibits A and D on grounds that they are unreasonable having found that there was a valid courier service contract between the parties.
3. Whether based on the pleadings and evidence before the court, the Learned Trial Judge was right in awarding the sum of N306,363.00 as general damages to the Respondents.
I consider these issues appropriate to determine this appeal and I shall adopt them as mine in determining this appeal.
On issue 1 whether the Learned trial Judge was right in foreclosing the Appellant’s right to present its final address, the Appellant in reference to this issue which covers or was formulated from grounds 2 and 3 of the Appellant’s Notice of Appeal is contending that its right to present its final address was wrongly foreclosed thereby occasioning a miscarriage of justice. Appellant’s Counsel referred to section 258(1) of the 1979 Nigerian Constitution which is in pari materia with section 294(1) of the 1999 Constitution which came for interpretation before the Supreme Court in OBODO V. OLOMU (1987) 3 NWLR (PART 59) 111 where the apex Court took the view that the right to present final address is a very fundamental right the breach of which vitiates a trial however well conducted. That Court held that although the right to present final addresses may be waived, it must be shown to have been waived. Appellant’s Counsel also relied on the Supreme Court decision in SHALLA V. STATE (2007) 18 NWLR (PART 1056) 240 at 290 to also submit that although a Counsel’s address does not constitute evidence, it forms part of the case and failure of a Court to consider it is quite fatal to the proceedings. Appellant’s Counsel referred to pages 26 and 27 of the Record of Appeal which deal with what happened on the 19th February 2004 in Court when final addresses were to be taken and how a written request for adjournment by the Appellant’s Counsel on grounds of ill health was rejected by the Court on the argument of Counsel for the Respondent that the said 19th February 2004 had been agreed by both Counsel for presentation of addresses. Respondent’s Counsel’s objection to the granting of an adjournment was accepted by the Court on the main ground that an adjournment would cause injustice to the Respondent and the Court as it would cause further delay. The Court then foreclosed the Appellant’s right to present its final address, took the final address of the Respondent’s Counsel and reserved judgment for the 26th February 2004.
Appellant’s Counsel went on to submit that the learned trial Judge referred to arguments of the Respondent’s Counsel and even relied on the authorities cited in the address of the Respondent’s Counsel to reach material conclusions without the benefit of hearing the Appellant’s Counsel’s final address.
On how the discretion to grant or refuse to grant an application for adjournment is exercised, Appellant’s Counsel referred to the case of UDO V. STATE (1988) 3 NWLR (PART 82) 315 at 329 para. F – H. Such an exercise of discretion should, he said, be taken seriously and reasons given for the decision to grant or not to grant. In the present case the learned trial Judge failed to give any consideration to the reason for the adjournment sought. Counsel went on to say that the effect of denial of right of final addresses is grave placing reliance on OBODU V. OLOMU (supra). It renders the entire trial of the suit before the trial Court a nullity however well conducted. Counsel therefore urged this Court to order that the claim of the Respondent be retried by another judge as the trial of the case in the Court below amounts to a nullity.
Respondent in his Brief of Argument submitted that the High Court below did not foreclose the Appellant’s right to final address by Appellant’s Counsel. Respondent’s Counsel went on to say as follows at paragraph 4.02 of pages 13 and 14 of the Respondent’s Brief of Argument as follows:-
“To appreciate this issue better let us take a look at what happened at the trial court which are not in the record of proceeding before this Court.” (underlining mine.)
Counsel then went on to give a rundown of Court adjournments. In paragraph 4.04 at page 14 of the Respondent’s Brief he went on to say,
“These adjournments which were not reflected in the record of proceedings were as follows:” (underlining mine.).
Counsel submitted that section 294(1) of the 1999 Constitution did not provide that the Court must not deliver until addresses of Counsel are taken when it can on its own go through the evidence on record to determine the case and do substantial justice between the parties. Reliance was placed on DAN SHALLA v. STATE (2007), 32 NSCQR page 277 at 337. Counsel went, further to submit that the address of Counsel though forming part of a party’s case is not evidence and the evidence needed by the Court to do substantial justice were placed before the Court after which judgment was delivered. Counsel further submitted that the learned trial Judge judicially and judiciously considered the application for adjournment based on the material before it, more so as there was no medical report to support the letter. Counsel went on to say further that the rule of fair hearing does not compel the Court to force a party to be heard and that once a litigant is given an opportunity to be heard it is sufficient. Reliance was placed on ATT. GEN. OF OYO STATE v. FOLAYAN (1995) 8 NWLR (PART 413) 290 at 297. The principle of fair hearing Counsel submitted will depend on each particular case. Counsel relied on T.M. ORUGBO & ORS V. BULARA UNA & 10 ORS (2002) 11 NSCQR 533 at 562-563.
Let me commence a discussion of this issue by saying that the High Court just as this Court is a Superior Court of Record and cases are fought, lost and won on the records placed before the Court be they documentary or oral which are reduced into writing. There is a wide and enormous assortment of material that the Court relies on as forming part of its records. These are the records of proceedings. Such records of proceedings do not include private jottings of Counsel except an application to do so is placed before the Court which grants it. See ELDER WOLE OYELESE & 36 ORS. V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS CA/I/55/2011 (unreported). To that extent, Respondent’s Counsel’s attempt to rely on facts not covered by the Record of Appeal forwarded to the Court of Appeal from the Court below will not be countenanced.
From the Record of Appeal at page 27, the date 19th February 2004 is germane to the discussion of issue 1 in that it is the date the matter was adjourned to for address of both counsels in the matter, The Learned trial Judge had made the following observation.
“In the instant case the adjournment sought by the Defendant (sic) Counsel through a letter dated the 17th December 2004 will cause injustice on the Defendant and the Court and will result in further delay.”
According to the Appellant in its Brief of Argument the adjournment sought by the Defendant’s (now Appellant) Counsel was on health grounds. This fact was never denied by the Respondent in his Brief of Argument except to say that the adjournment sought by letter to Court was not accompanied by a medical report. The records for that day showed that the adjournment sought by the Defendant (now Appellant) was from the 19th February 2004 to a date in April 2004. How would such a request made by the Defendant cause injustice also to the defendant who has made the request or injustice to the Court? What would the Defendant suffer? What would the Court suffer? Wouldn’t a greater injustice be caused if the Appellant’s counsel is foreclosed from ever presenting the address while the Respondent’s counsel is allowed to present his address and have it acted upon by the Court? Was such discretion by the Court judicially and judiciously exercised in the light of the fact that an address by the Appellant’s Counsel forms part of the case of the Appellant as conceded by the Respondent in his Brief of Argument? Wouldn’t such a denial to present Appellant’s counsel’s address amount to a denial of fair hearing? In FORCADOS OVO OBODO V. STAFFORD OLOMU & ANOR (1987) 3 NWLR (PART 59) page 111 at pages 123-124 the Supreme Court of Nigeria per Obaseki JSC said as follows –
“The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the judge is enormous and unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”
It should be noted that section 258(1) of the 1979 Nigerian Constitution is in pari materia with section 294(1) of the 1999 Nigerian Constitution. In this case the Supreme Court held that the denial of a Plaintiff’s Counsel the opportunity of addressing Court is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing which renders the proceedings a nullity. This is so because according to the Supreme Court in ABUBAKAR DAN SHALLA V. THE STATE (2007) 18 NWLR (PART 1066) 240 at 290, a Counsel’s address (in this case the Defendant’s Counsel) forms part of the case of the Defendant. Counsel therefore cannot and should not be pressured or denied that right of address except Counsel chooses to abandon or jettison the address. It is amazing how Counsel for the Respondent has tried to import irrelevant material to score a point. For example in paragraph 4.13 at page 16 of the Respondent’s Brief of Argument the Respondent submitted as follows –
“The rule of fair hearing does not compel the Court to force a party to be heard. Once a litigant is given an opportunity to be heard it is enough.”
ATT. GEN. OF OYO STATE V. FOLAYAN (supra). How relevant is this submission to the issue now under consideration? Also in paragraph 4.09 at page 15 of the Respondent’s Brief of Argument Respondent’s Counsel submitted as follows-
“We submit sir that section 294(1) of the 1999 Constitution did not provide that the Court must not deliver judgment until the address of Counsel. On this issue of Counsel (sic) address the Supreme Court said:
“The lower Court need not call on the parties to address it on the alleged defenses allegedly not considered by the trial Court when it can on its own go through the evidence on record to determine so as to do substantial justice between the patties.”
See DAN SHALLA V. STATE (2007) 32 NSCOR page 277 at 337. How relevant is this submission to the issue now being considered? What is in issue in this case is that at the Court below the Defendant’s Counsel was denied the opportunity of presenting his final address which is in essence part of the Defendant’s case and this denial amounts to a denial to the right of fair hearing.
Considering the circumstances in this case in which the Court had gone through the whole process of a lengthy trial up to the last stage when addresses of Counsel which are necessary to sum up each party’s case and in which authorities are cited which would have been of immeasurable help to the Court itself in coming to a balanced and just decision, would a refusal to hear Counsel’s final address have been a discretion exercised judicially and judiciously? I think not. Would a reasonable man sitting in Court throughout the proceedings leading up to the 19th February 2004 when the learned trial Judge denied the Appellant’s Counsel the right of having his address heard by simply granting a short adjournment and went on to take the Respondent’s address which it relied upon in coming to a decision say the right decision had been made by the learned trial judge? I think not. See ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 at 426 which is the locus classicus on fair hearing, wherein it was stated by Ademola CJN-
“That the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.”
Once it has been established that there was a denial of fair hearing in a case that case fails as one cannot put something on nothing and expect it to remain there. In this case not only is Issue 1 resolved in favour of the Appellant against the Respondent, proceeding to consider the other issues will be only of academic interest.
The Appeal therefore has merit and it succeeds and the judgment of Sanda J. delivered in Suit No. 1/235/2001 on the 26th February 2004 is hereby set aside. It is the further order of this Court that the case file be remitted back to the Chief Judge of Oyo State for assignment to another Judge of Oyo State High Court other than Sanda J. for retrial de novo.
MODUPE FASANMI, J.C.A. I read before now in draft the lead judgment of my learned brother S.S. ALAGOA J.C.A just delivered.
I agree that the appeal is meritorious and therefore succeeds.
The appeal is also allowed by me. The judgment of the lower court in suit no. 1/235/2001 delivered on the 26th of February 2004 is hereby set aside. I agree with the consequential orders made therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I am in full agreement with the lucid judgment prepared by my learned brother, Alagoa, J.C.A. I adopt same as mine with some few words,
The issue of final address in a civil action is constitutional. Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, guarantees the said right, which is the re-incarnation of section 258(1) of the former Constitution of the Federal Republic of Nigeria, 1979. The right in question appears to me to have root in the entrenched fundamental right to fair hearing provision under section 36(1) of the 1999 Constitution, as amended see by analogy F.B.N. Plc v. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247.
Therefore, the right of final address in a civil action should not be tossed aside; but the opportunity of exercising it must be given to the parties involved in the litigation. No matter the protracted nature of the proceedings, the opportunity to exercise the right should be made available to the warring parties. The denial of the said opportunity to the appellant occasioned a failure of justice in the present case, in my view.
It is for the above reason and the encompassing reasons given by my learned brother, Alagoa, J.C.A., that I too would allow the appeal, set aside the judgment of the court below and order a new trial before another learned judge of the Oyo State High Court, to be determined by the learned Chief Judge of Oyo State. I make no order as to costs.
Appearances
A. Nwagwu Esq.For Appellant
AND
Uche Amajo Esq.For Respondent
