EASTERN BREWERIES PLC, AWO OMAMMA & ORS V. HENRY NWOKORO
(2012)LCN/5242(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of March, 2012
CA/PH/281/1997
RATIO
THE PRINCIPLE OF LAW ON WHERE A PARTY FILES HIS PLEADINGS BUT DOES NOT GIVE EVIDENCE IN SUPPORT OF THE PLEADINGS
It is trite principle of our law that pleadings are not evidence. Where a party files his pleadings but does not give evidence in support of the pleadings, he is deemed to have abandoned his case. See UNION BANK OF NIGERIA LTD V. JIMBA (2001) 12 NWLR 505 AT 518: MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (PT 701) 557. Therefore, where a Statement of Defence was filed and the defendant as in the instant case, the Appellants fails to adduce evidence in support of the averments therein contained, that tantamount to the abandonment of such pleadings and the learned trial Judge is right to treat the evidence of the Respondent as uncontroverted. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
FUNDAMENTAL RIGHT: THE CONCEPT OF FAIR HEARING
The concept of fair hearing is not a mere rhetoric or empty verbalism. Fair hearing is a fundamental right of the individual guaranteed in the Constitution the breach of which will nullify the proceedings in favour of the victim. The Constitutional guarantee is constructed in the light of the peculiar facts of each case and the facts alone. It cannot be constructed outside the facts. Accordingly, a party alleging the actual or imminent breach must show clearly from the facts of the case that the right has been violated or is in the verge of being violated. Once it is shown that there is an infringement of the principles of natural justice as enshrined in Section 36 (1) of the Constitution of Nigeria 1999, against the person he needs to show nothing more. See AJAYI V. N.U.R.T.W (2009) ALL FWLR (PT.477) 175 AT 169: GBADAMOSI V. DIMO (2007) 3 NWLR (PT 1021) 282. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
THE POSITION OF THE LAW ON THE QUESTION OF WHETHER A PARTY HAS BEEN AFFORDED ADEQUATE NOTICE TO ANSWER HIS CASE
Each party to a case must be afforded an ample opportunity of defending himself. The question whether a party has been afforded adequate notice to answer the case he has to meet will depend on a careful consideration of the facts and circumstance of each case. The test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial. In the instants case, it is my considered view that the Appellants were given a fair hearing but they were indolent. All the cards have placed on their table but were indulged in dilatory tactics. See MIRCHANDI V. PINHEIRO (SUPRA); MOHAMMED V. KANO N. A. (1968) 1 ALL NLR 424: KOTOYE V. CBN (1989) 1 NWLR (PT 98) 419: AND JOHN V. BLACK(1988) 1 NWLR (PT 72) 648. In REYNOLD CONSTRUCTION COMPANY LTD. V. OKPEGBORO (2000) 2 NWLR (PT 645) 367, AKINTAN, JCA, (as he then was) was held at page 374 as follows:- “The requirement that equal treatment, equal opportunity or equal consideration be given to all concerned is however not breached in a situation where a party afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such opportunity through his own neglect or tardiness, since the law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard. It is not applicable to a defendant who fails to appear to defend all action against him.” PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
DAMAGES: ON THE MEANING OF SPECIAL DAMAGES AND FEATURES
Damages are therefore classified into, “special damages” and “general damages.” For a claim for special damages to succeed, it must be pleaded and proved strictly as the Court is not entitled to make its own estimates on such an issue without such proof. A feature of the claim for special damages is that there must be viva voce evidence of the items of claim specifically itemized in the pleadings. See ODULAJA V. HADDAD (1973) 1 ALL NLR 836. DUMEZ (NIG.) LTD V. OGBOLI (1972) 3 SC 196; SDPC (NIG.) LTD. V. TIEBO VII (2005) 9 NWLR (PT 931) 439. In STIRLING CIVIL ENG (NIG.) LTD. V. YAHAYA (2005) 11 NWLR (PT. 935) 81. the Court held that: “A feature of the claim for Special damages is that there must be viva voce evidence of the item of claim specifically itemized in the pleading.” Thus, strict proof in relation to special damages means no more than proof that will easily lend itself to substantially exact calculation of the damages suffered. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
DAMAGES: ON THE MEANING OF GENERAL DAMAGES AND FEATURES
General damages are damages at large in that there is no strict rule regarding it. The yardstick in assessing general damages is that of a reasonable mean on the street. The inconveniences suffered are what can be deciphered from the totality of the evidence proffered by the parties. Thus, it is the duty of the trial Court to assess general damages having regard to the sufferings by the claimant. The trial Court considered all the relevant facts and awarded the sum of N200, 000.00 as general damages to the Respondent. However, the Respondent asked for N49, 181.00 general damages only. The learned trial Judge ought not to have granted him the sum of N200, 000.00 he has not asked for. It is not the law that where special damages are awarded, general damages cannot be awarded. Each award is dictated by the evidence adduced as well as other surrounding circumstances of the case. Therefore, the fact that trial court had awarded special damages in favour of the Respondent did not preclude it from awarding general damages in favour of the Respondent. See SBN PLC V. CBN (2009) 6 NWLR (PT 1137) 232: AND N.N.B. PLC V. DENCLAG LTD (2005) 4 NWLR (PT 916) 549. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
PRACTICE AND PROCEDURE: REQUIREMENTS TO BE A COMPLAINANT BEFORE AN APPEAL COURT TAMPERS WITH AN AWARD OF DAMAGES MADE BY A TRIAL
It is trite that before an appeal court tampers with an award of damages made by a trial Court it must be established by a complainant that:
i) The award was either too low or too excessive, or
ii) That the award was not made in keeping with the claim pleaded by the claimant; or
iii) That the award was made in violation of law. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
MOJEED A. OWOADEJustice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANIJustice of The Court of Appeal of Nigeria
Between
1. EASTERN BREWERIES PLC, AWO OMAMMA
2. EDMUNDSON MINIMAH
3. CLEMENT CHIBUOGUAppellant(s)
AND
HENRY NWOKORORespondent(s)
HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice P. C. Okoli of the Imo State High Court sitting in the Oguta Judicial Division of the Court. The said judgment was delivered on the 24th day of November, 1992 wherein the learned trial Judge gave judgment for the Plaintiff/Respondent.
The Respondent as Plaintiff at the Lower Court brought an action against the Appellants as Defendants for malicious prosecution and claim against them jointly and severally the sum of N50, 000.00 (Fifty Million Naira) being special and general damages particulars of which was given at paragraph 12 of the Statement of Claim filed on the 4th day of February, 1992 as follows:
PARTICULARS OF SPECIAL DAMAGES
1. Loss of business whilst attending Court at the rate of N5, 000.00 for each day the Plaintiff attended Court. Total number of appearances in Court was 16 days x 5,000.00: N80, 000.00
2. Cost of Crank shaft N32, 000.00
3. Cost of defence as specified in the bill of P C Onumajulu and Co. – N15, 000.00
4. Loss of use of the Mercedez Lorry Reg. No. IM 4089M from which the said crank shaft was removed at the rate of N1, 000.00 per day for 692 days it was not in use by Plaintiff is from 26th/1/90 when it was removed to 19th/12/91 when it was released – N692,000.00.
Total Special damages – N 819,000.00
General damages – N 49,181.00
Grand Total – N50, 000,000.00
The Appellants were served with the statement of Claim on the 6th day of February, 1992 and entered appearance on the 13th day of February, 1992. The Appellants did not file a Statement of Defence and on the 29th April, 1992, the Respondent filed a motion for judgment in default of pleadings. On the 11th day of May 1992, the Appellants filed a motion for extention of time to file their Statement of Defence. The said application was granted on the 21st day of May, 1992 and the Appellants were given 21 days to file their Statement of Defence. The Appellants did not file their Statement of Defence within the time extended.
On the 1st day of July, 1992, the Respondent filed another motion for judgment in default of pleadings. The Appellants again filed a motion for extension of time to file Statement of Defence. On the 13th July, 1992, the said application was granted and the Appellants were given 30 days within which to file their Statement of Defence and the matter was adjourned to 17th September, 1992 for mention.
The Appellants filed their Statement of Defence on the 23rd September, 1992 which they claimed was filed within the 30 days period granted by the Court.
Due to the absence of the Appellants and/or their counsel, the matter was adjourned from 17th September, 1992 to 13th October, 1992 for hearing. On that date, the Appellants were absent and the matter was further adjourned to 15th/10/92 for the Respondent to prove his case. The Respondent testified on the 15th/10/92 and closed his case. The Counsel addressed the Court and judgment was given for the Respondent on the 24th day of November, 1992.
Being dissatisfied with the said judgment, the Appellants have now appealed to this Court vide a Notice and Grounds of appeal filed on the 2nd January, 1993 upon a lone ground of appeal. With the leave of this Court granted on the 7th April, 2003, the Appellants filed an Amended Notice of Appeal. The Amended Grounds of Appeal are hereby reproduced without their particulars, to wit:-
GROUNDS OF APPEAL
1. The learned trial Judge erred in law in giving judgment in favour of the Plaintiff in the absence of the Defendants and their Counsel ever though no hearing notice was issued to the Defendants or their Counsel.
2. The learned trial Judge erred in law and on facts when in this judgment, he stated that the Defendants did not file any statement of Defence.
3. The learned trial Judge erred on facts and in law in awarding special damages of N819, 000.00 and general damages of N200, 000.00 to the Plaintiff.
Parties filed and exchange briefs of argument as it is the practice in this Court. In the Appellants’ brief of argument settled by Chief K. K. Ogba, Esq. 3 issues were distilled for determination, to wit:-
1. Whether the learned trial Judge was right when he stated in his judgment that the Defendants did not file any Statement of Defence and if not, whether it was right in basing his judgment on the incorrect finding that the Defendants had not filed their Statement of Defence.
2. Whether the Defendants/Appellants were given fair hearing by the Court of trial.
3. Whether the award of N819, 000.00 as special damages and the award of N200,000.00 as general damages in favour of the Plaintiff/Respondent was proper.
In the Respondent brief, settled by Stanley Chidozie Imo, ESQ, three issue were also formulated for the determination of the appeal to wit:
a) Whether the decision of the trial Court was a decision that could have been supported solely on the ground that the Defendants/Appellants defaulted in filing their pleadings.
b) Whether the Defendants/Appellants were given a fair hearing.
c) Whether the award of damages made by the trial Court is right in law having regard to the pleadings and evidence adduced in this case.
At the hearing of the appeal on the 20th January, 2012, learned Counsel for the Appellants, Chief K. K. Ogba ESQ adopted the Appellants brief of argument filed on the 22nd April, 2003 and the Appellants reply brief filed on the 10th February, 2006 but deemed properly filed on the 16th November, 2011 and urged the Court to allow the appeal.
The Respondent’s Counsel N. A. Nnawuchi, ESQ adopted the Respondents’ brief of argument filed on the 22nd July, 2003 but deemed properly filed on the 24th November, 2004 and urged the Court the dismiss the appeal. He also referred us to additional authority. BENUE CEMENT CO. PLC V. SKY INSPECTION NIG. LTD (2002) 17 NWLR (PT 795) 86 AT 114.
I have considered the issues formulated by the respective Counsel and they appear to be the same in con only that they are differently couched. I will therefore adopt the issues as formulated by the Appellants in the determination of this appeal.
ISSUE 1
Whether the learned trial Judge was right when he stated in his judgment that the Defendants did not file any Statement of Defence and if not, whether it was right in basing his judgment on the incorrect finding that the Defendants had not filed their Statement of Defence.
Learned counsel for the Appellants submitted that the Appellants were on the 13th day of July, 1992 granted an extension of time of 30 days within which to file their statement of Defence and the suit was adjourned to 17/9/92 for mention. That on 17/9/92, the date the case was adjourned for mention, the Appellants and their counsel were absent and the case was adjourned to 13/10/92 for hearing without ordering for hearing Notice to be issued. That the Appellants duly filed their statement of Defence in the Registry of the High Court, Oguta on the 23/9/92.
That the period of August, 1st to 15th September, 1992, the High Court in Imo State were on annual vacation, therefore their Statement of Defence filed on 23/9/92 was well filed within the 30 days period granted by the Court on 13/7/92.
Learned counsel referred to order 48 Rule 4 (2) and Rule 6 of the Imo State (Civil Produce) Rules 1988 (now order 45 Rule 4 (d) and Rule 6 of the High court (Civil Produce) Rules 2008) which provides that the time for filing and service of pleadings shall not run during the annual vacation and to Section 74 of the Evidence Act for the Court to take Judicial Notice of the annual vacation. It is submitted that the learned trial Judge treated 17/9/92 as a date for hearing instead of for mention and referred to Supreme Court decisions to show that this is wrong and the proceedings are a nullity. MBADINUJU V. EZUKE (1994) 10 SCNJ 109 AT 122: NEW NIGERIA NEWSPAPERS LTD V. OTEH (1992) 4 NWLR (PT 237) 626 AT 633; KANO V. BMP CO. LTD (1978) 9 – 10 SC 51. AND WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1992) 1-2 SC 145.
Learned Counsel submitted that on the 13/10/92 when the matter came up and the Appellants were absent, the Respondents failed to inform the Court that the Appellants had filed their statement of Defence and the case was adjourned for the Respondent to prove his case. He stated that no hearing notice was served on the Appellants or their Counsel. He also submitted that the Appellants having filed their Statement of Defence in the Registry of the Court below cannot be held responsible if same was not brought to the attention of the learned trial Judge. He referred to the case of MOHAMMED v. MUSAWA (1995) 3 NWLR (PT. 11) 89 AT 95. He submitted that the holding of the learned trial Judge lead to a miscarriage of justice. He also referred to the case of DAWODU V. OLOGUNDUDU (1986) 4 NWLR (PT 33) 104. We were urged to resolve the issue in favour of the Appellants.
In his response, learned Counsel for the Respondent submitted that the Appellants second motion for extension of time to file their statement of Defence was moved and granted on 13/7/92 and they were granted 30 days to file their Statement of Defence and that the said Statement of Defence was not filed until 23/9/92 outside the 30 days period granted by the Court.
Learned Counsel urged us not to take Judicial Notice of the Courts vacation by virtue of Section 74 of the Evidence Act because the duration of such vacation varies from state to state. He referred to Order 48 Rule 4(2) of Imo State High Court (Civil Procedure) Rules 1998 (now Order 45) relied upon by the Appellants’ counsel to submit that the exercise of that power in 1992 is not something that this Court can take judicial Notice of. Learned Counsel submitted further that since the Appellants have failed to establish that the vacation period was for six weeks, the only reasonable conclusion is that the vacation was less than six weeks in which case the Appellants Statement of Defence was filed outside the time extended by the Court and therefore incompetent and that in any case, the issue of vacation period was not raised by the Appellants at the Lower Court.
In the alternative, learned Counsel submitted that the existence of the Appellants’ Statement of Defence will not affect the outcome of the judgment of the trial Court as it is a judgment given on the merit based on evidence adduced before the trial Court. He relied on the case of ABORISHADE V. ABOLARIN (2000) 10 NWLR (Pt 674) 41 AT 58 – 59 where a judgment on the merit was defined. He also submitted that this is not a judgment given under Order 27 Rules 2 and 4 of the Rules of the High Court (Civil Procedure) Rules 1988 (now Order 20 of the Rules of the High Court, 2008).
Learned Counsel also submitted that the Appellants did not give evidence or call witnesses in proof of their defence. Therefore all the averments in the statement of Defence go to no issue. That having not given evidence or call witnesses, the Appellants are deemed to have abandoned their case. He referred to the case of UNION BANK OF NIGERIA LTD. V. JIMBA (2001) 12 NWLR (PT. 505) 518 and he urged the Court to resolve this issue against the Appellants.
In his reply, learned counsel for the Appellants submitted that order 27 Rules 2 and 4 of the High Court (Civil Procedure) Rules relied upon by the Respondent’s counsel is of no moment as no rule of Court allows Judgment to be entered in favour of a Plaintiff who has not given evidence in support of his claims. That Rules 2 and 4 applies to claim for liquidated money demand or for un-liquidated damages only where the Respondent’s claim was for both liquidated claim and for general damages.
The contention of learned Counsel under this issue is whether the learned trial Judge was right in basing his judgment on the finding that the Appellants had not filed their Statement of Defence when in fact they did filed their Statement of Defence in the registry of the Court and if such judgment could stand.
On the 13th/7/92 the Appellants were granted extension of time of 30 days within which to file their Statement of Defence and the suit was adjourned to 17/9/92 for mention. The Appellants and their Counsel were absent in Court on the 17th/9/92 and the case was adjourned to 13/10/92 for hearing which the Appellants contended without ordering for a hearing notice to issue to them. That on the 23/9/92 the Appellants filed their Statement of Defence in the registry of the Court.
It is clear from the records that when the Appellants motion for extension of time was taken and granted on the 13/7/92, the Appellant’s Counsel was in Court and the case adjourned to 17th/9/92 for mention. The Appellants’ Counsel sent a letter for adjournment to the Court on the 17th/9/92 and did not follow up to know when the case was adjourned to. I think the Appellants and their Counsel owe a duty to themselves and the Court and should therefore endeavour to know the subsequent date to which their case was adjourned to be heard. A service of hearing notice may not be necessary where the party to be served or his counsel was present in Court when the matter was adjourned to another date for hearing.
The complaint of the Appellant is that he was not served with a hearing notice and that the matter was adjourned for mention and not for the hearing of the case when it was heard. This argument of Counsel is not true. The Appellants and their Counsel did not go Court to find out what transpired in Court after they sent the letter for adjournment. A mindful and diligent Counsel conscious of his obligation and duty to his client and the administation of justice would appear in Court the following day with a view to finding out the fate of his case.
Learned Counsel contended that their Statement of Defence filed on the 29th/9/92 was filed within the 30 days period granted by the Court on the 13/7/92. By virtue of Order 48 Rule 4(2) and Rule 6 of the High Court (Civil Procedure) Rules 1988 which provides that filing of processes does not run during vacation period and that from August 1st to 15th September, 1992 were within the High Court vacation period and the Court ought to take judicial notice of this fact under Section 74 of the Evidence Act. Indeed, the Appellants’ Statement of Defence filed on the 29th/4/92 was filed 72 days after the grant of the motion for extension of time.
It is a fact that the High Courts of all the States of the Federation go on vacation each year which is notorious enough for the Court to take judicial notice of, but the duration also varies from state to state and the Court cannot be expected to take judicial notice of such variations because the vacation is a practical thing and not static. It is not the same thing with known public holidays which hardly change. Thus, it would not be proper to note periods of Court’s vacation judicially. Therefore, any party asserting that the Court is on vacation is required to prove same by evidence. I am fortified in this view by the decision of this Court in the case of BENUE CEMENT COMPANY PLC V. SKY INSPECTION NIG. LTD AND ANOR (2002) 17 NWLR (PT 795) 80 AT 114.
The Appellants have failed to discharge this burden in the instant case and the consequence is that the Appellants’ statement of Defence was filed out of time. In any case, the issue whether the Court should take judicial notice of the Court’s vacation period was not an issue pronounced upon by the trial court. It was raised in the Counsel’s brief of argument for the first time without leave of the Court.
It is trite that a party is not entitled to raise a fresh issue on appeal without the leave of the Court first sought and obtained. This is because the jurisdiction of this Court primarily is to review by way of rehearing, the decision or decisions of the Lower Court. The rational behind this is that, the court below must have been given the opportunity to pronounce on the issue to avail this Court of its decision on the matter and to enable this Court review the Lower Courts pronouncement on the issue judiciously. In the instant case, the issue of annual vacation raised for the first time without the leave of this Court is incompetent. See NETUFO V. OMOOLORUN (2005) 12 NWLR (PT 938) 1; MANIHATTAN INV. LTD V. CO-OP. DEV. BANK PLC (2009) ALL FWLR (PT 483) 1381: and STANDARD TRUST BANK PLC V. OLUSOLA (2009) ALL FWLR (PT. 450) 777.
Learned Counsel for the Appellants had argued that contrary to the proceedings of 13/7/92, the learned trial Judge in his judgment treated 17/9/92 as the date for hearing instead of motion.
It is on record that when the Appellants were given 30 days to file their Statement of Defence on the 13/7/92, the case was adjourned to 17/9/92 for mention and not hearing as contended. See page 28 lines 8 – 18 of the record. From 17/9/92 the case was then adjourned to 13/10/92 for hearing. So the case was mentioned on 17/9/92 and then adjourned to 13/10/92 and further adjourned to 15th/10/12 for hearing. In any case, the complaint by the Appellants that the case was not fixed for hearing when it was heard but for motion is only a sham. The antecedents of this case show that the Counsel has shown lack of seriousness towards the prosecution of his case. He has shown serious disregard to court order, while in the cases of MBADINUJU v. EZUKE (SUPRA): NEW NIGERIA NEWSPAPERS LTD v. OTEH (SUPRA) AND WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (SUPRA) the counsel have not been shown to be indolent in the prosecution of their case. The cases are not on all fours with the facts and circumstances of this case. A judgment of a Court of competent jurisdiction cannot be treated as a nullity or declared to be so simply because it heard the matter when it was supposed to be for mention. See FATOKUN V. SOMADE (2003) 1 NWLR (PT 802) 341: WILLIAM V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 145: UGWU V. ABA (1961) All NLR 438 AND DOHERTY V. DOHERTY (1964) NWLR 144. In any case, each case is decided based on its own peculiar facts and circumstances. Therefore, hearing a case on a date fixed for mention is in my view not wrong or against any rule or principle of law. It all depends on the peculiar circumstances of each case.
The next question is whether the Statement of Defence of the Appellants was properly filed on the 23rd/9/92 when it was filed in the registry of the High Court. The Appellants on the 13/7/92 were granted an extension of time to file their Statement of Defence within 30 days from that date. The Statement of Defence was filed on 23/9/92. That was 72 days after the grant of the application and 42 days after the time extended by the Court. There was no evidence adduced before the trial Court that by Order 48 Rule 4(2) and Rule 6 of the High Court (Civil Procedure) Rules 1988, the time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed. The consequence of this is that there was no valid or proper Statement of Defence before the trial Court at the time it heard the case before it. The learned trial Judge was right to have discountenanced the statement of Defence as it was not properly before him.
Assuming the Appellants’ Statement of Defence was properly filed before the Court, would that have affected the outcome of the judgment of the trial Court? I think not. It is trite principle of our law that pleadings are not evidence. Where a party files his pleadings but does not give evidence in support of the pleadings, he is deemed to have abandoned his case. See UNION BANK OF NIGERIA LTD V. JIMBA (2001) 12 NWLR 505 AT 518: MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (PT 701) 557. Therefore, where a Statement of Defence was filed and the defendant as in the instant case, the Appellants fails to adduce evidence in support of the averments therein contained, that tantamount to the abandonment of such pleadings and the learned trial Judge is right to treat the evidence of the Respondent as uncontroverted. Where evidence is uncontroverted, the onus of proof is satisfied on a minimal proof since there is nothing on the other side of the scale. See BURAIMOH V. BAMGBOSE (1989) 2 NWLR (PT 109) 352. The learned trial Judge is right to have decided this case on the uncontroverted evidence of the Respondent alone and to give judgment for him. This issue is therefore resolved against Appellants.
ISSUE 2
Whether the Defendants/Appellants were given fair hearing by the Court of trial.
Learned Counsel for the Appellants submitted that the Appellants were not given a fair hearing and that the learned trial judge was in the mistaken belief that the Appellants had not filed their Statement Defence when the case was adjourned to 17/9/92 for hearing and was again adjourned to 15th/10/92 without ordering a hearing Notice to be served on the Appellants. That the trial is also unfair because the learned trial Judge decided the case on the Statement of Claim alone in the mistaken belief that there had been a default in filing the Statement of Defence and that this violated the principle stated in the case of OSHOBOJA V. AMUDA & ORS (1992) 7 SCNJ 317, that, a principle of natural justice demands that all parties to an action should be given due notice of hearing and the opportunity to be heard and to cross examine every witness called by their adversaries. He also referred to the case of DAWODU V. OLOGUNDUDU (1986) 4 NWLR (PT 33) 104 and concluded that the Appellants were not given a fair hearing as required by Section 36 of the 1999 Constitution (as amended).
In his response, learned Counsel for the Respondent submitted that the Appellants defaulted in filling their pleadings on three occasions and that they were made to apply for an extension of time each time the Respondent filed a motion for judgment in default of pleadings. He submitted that on the 13/7/92 when the last motion for extension of time was heard and granted, the matter was adjourned to 17/9/92 for mention and that the adjournment was made in the presence of the Appellant’s counsel. On that adjourned date, the Appellants’ Counsel did not appear but sent a letter and the matter was adjourned to 13/10/12 for hearing.
Learned Counsel argued that it is not in all cases where a party is not in Court that a hearing notice must be issued and served on him, for instance, where a party is in Court when his matter was adjourned or where a party out of his nonchalant attitude towards the Court and his case, is absent when the matter was adjourned. He submitted in such cases, a party cannot be heard to say that he was not given a fair hearing. He referred to the case of: REYNOLD CONSTRUCTION CO. LTD V. OKPEGBORO (2000) 2 NWLR (PT 645) 367 AT 374. He submitted that the failure of the Appellant to appear in Court on the 13/10/92 when the case was adjourned for hearing was as a result of their neglect and/or tardiness. He also referred to the following cases; JOHN V. BLAKE (1988) 1 NWLR (PT 72) 648 AT 653: MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (PT 701) 557 AT 570: AND FATOKUN V. SOMADE (2003) 1 NWLR (PT 802) 431 AT 447. Learned Counsel therefore submitted that the Appellants were given reasonable opportunity to defend this case but failed to utilize the said opportunity.
In his reply learned Counsel submitted that the case of REYNOLDS CONSTRUCTION CO. LTD V. OKPEBORO (SUPRA) relied upon by the Respondent does not apply to the instant appeal as the Appellants were neither indolent nor nonchalant.
The Appellants contention under this issue is that they were not given a fair hearing as the learned trial Judge was under the mistaken belief they had not filed their Statement of Defence and that when the matter was adjourned to 15th/10/92 for hearing, they were not issued a hearing notice.
The concept of fair hearing is not a mere rhetoric or empty verbalism. Fair hearing is a fundamental right of the individual guaranteed in the Constitution the breach of which will nullify the proceedings in favour of the victim. The Constitutional guarantee is constructed in the light of the peculiar facts of each case and the facts alone. It cannot be constructed outside the facts.
Accordingly, a party alleging the actual or imminent breach must show clearly from the facts of the case that the right has been violated or is in the verge of being violated. Once it is shown that there is an infringement of the principles of natural justice as enshrined in Section 36 (1) of the Constitution of Nigeria 1999, against the person he needs to show nothing more. See AJAYI V. N.U.R.T.W (2009) ALL FWLR (PT.477) 175 AT 169: GBADAMOSI V. DIMO (2007) 3 NWLR (PT 1021) 282.
In the instant case, it need not be told that the Appellants never actively participated in this matter. They just abandoned the case and went into slumber only to wake up when the Respondent filed a motion for judgment in default of pleadings on three consecutive occasions. On the 13/7/92 when the last application for extension of time was granted and adjourned to 17/9/92 for mention, the adjournment was made in the presence of the Appellants’ Counsel. On that date the Appellants and their Counsel failed to appear in Court but wrote for adjournment. Before the proceedings of 17/9/92, the Appellants and their Counsel never attended Court and no reason would be given for their absence. From that 17/9/92, the case was adjourned to 13/10/92 for motion. The Appellants claimed no hearing notice was issued to them for the hearing of the case on the 13th/10/92. As said earlier in this judgment when the Appellants wrote for adjournment on the 17/9/92 and the subsequent adjournment of the case to 13/10/92, a mindful and diligent Counsel, conscious of his obligation and duty to his client and the administration justice would appear in Court the following day with the view to finding out the fate of his matter in court.
There is no obligation on the Court to issue hearing notices on the Appellants each time the case is mentioned. It is only in appropriate cases where courts order hearing notices to be issued and served on the parties. This cannot be insisted upon in all cases nor considered an absolute requirement. It is not in all cases that the absence of hearing notice will automatically vitiate trials in the con of Section 36 of the 1999 Constitution. In other words, a hearing notice is not a mandatory judicial process that must be issued and served in all cases, especially as in the case when they wrote for an adjournment. It is not for the Court to wait indefinitely for the convenience of a party. In the instant case, the Appellants and their Counsel did not bother to go to the Court to find out what transpired in court the other day. It is clear, the conduct of the Appellants and their counsel ought to be frowned at by the Court. Where a party indulges in dilatory tactics, it could not be said that the party is aiming at a fair hearing rather, that the party is using the due process of law to defeat justice being done to his opponent. In such a case, the Court is right to have proceeded with the hearing of the matter when the conduct of the Appellants and their Counsel are intended towards the frustration of the hearing of the matter.
Each party to a case must be afforded an ample opportunity of defending himself.
The question whether a party has been afforded adequate notice to answer the case he has to meet will depend on a careful consideration of the facts and circumstance of each case. The test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial. In the instants case, it is my considered view that the Appellants were given a fair hearing but they were indolent. All the cards have placed on their table but were indulged in dilatory tactics. See MIRCHANDI V. PINHEIRO (SUPRA); MOHAMMED V. KANO N. A. (1968) 1 ALL NLR 424: KOTOYE V. CBN (1989) 1 NWLR (PT 98) 419: AND JOHN V. BLACK(1988) 1 NWLR (PT 72) 648. In REYNOLD CONSTRUCTION COMPANY LTD. V. OKPEGBORO (2000) 2 NWLR (PT 645) 367, AKINTAN, JCA, (as he then was) was held at page 374 as follows:-
“The requirement that equal treatment, equal opportunity or equal consideration be given to all concerned is however not breached in a situation where a party afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such opportunity through his own neglect or tardiness, since the law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard. It is not applicable to a defendant who fails to appear to defend all action against him.” In the instant case, it was the Appellants’ neglect to appear in Court and file Statement of Defence despite several extensions of time granted by the trial Court. They cannot now be heard to complain of lack of fair hearing.
This issue is therefore resolved against the Appellants.
ISSUE 3
Whether the award of N819, 000.00 as special damages and the award of N200, 000.00 as general damages in favour of the Plaintiff/Respondent was proper.
Learned Counsel for the Appellants submitted that it is trite that special damages claimed must not only be specifically pleaded but they must be specifically proved. He cited the following cases; OKUBRE & ORS V. IBANGA (1990) 6 NWLR (PT. 154) 1 and ODULAJA V. HADDAD (1973) 11 SC. 35.
Learned Counsel submitted that apart from the Respondent’s evidence that he earned N5, 000.00 a day from his business, there is no other evidence to prove so. That no cash book or receipts were tendered in support of this claim. That special damages of N5, 000.00 a day for sixteen days were not proved. It is also submitted that the Respondent had failed to prove the cost of Crankshaft at N32, 000.00. That the Respondent not being a dealer in second hand motor parts, his evidence in support of such cost was useless. He relied on the case of SHELL B. P. PETROLEUM CO. OF NIGERIA V. DELE COLE & ORS (1978) SC 181 AT 194.
On the alleged sum of N15, 000.00 being cost of his defence in the Criminal Case, it is submitted that the said bill was never tendered by the Respondent nor did he call evidence from the Chambers of the Counsel in support of it. Learned Counsel also submitted with respect to the alleged earning of N1, 000.00 from the use of the lorry each day for 692 days including Saturdays and Sundays, that there is no evidence apart from the evidence of the Respondent on record to support such claim. It is also submitted that the N1, 000.00 every day after expenses were neither pleaded nor proved. He also submitted that the evidence of daily income of N1, 000.00 a day after expenses was at variance with the pleadings and went to no issue as the phrase “after expenses” appeared for the first time in the Respondent’s testimony in Court.
On the issue of general damages, learned Counsel submitted that the Respondent pleaded general damages of N49, 181,000.00 but did not say what these general damages were for and that if they were in support of the facts which led to the award of special damages, then the Court was wrong in law as the award violated the rule against double compensation. He relied on the case of HONIKA SAWMIL (NIG.) LTD V. HOFF (1992) 4 NWLR (PT 234) 681.
Learned Counsel submitted further that the learned trial Judge did not give any reason for arriving at the general damages of N200,000.00. That there was no assessment of the general damages. He referred to the case of ADEYEMI V. BAMIDELE APPEAL NO. SC 675/65. The Court was urged to resolve this issue in favour of the Appellants and order for a retrial.
In his response, learned Counsel for the Respondent submitted that the Respondent gave cogent and uncontroverted evidence of general and special damages at the trial and gave evidence that he suffered both mental and psychological anguish as a result of the acts of the Appellants and that his reputation was also damaged. He submitted that the Respondent pleaded and proved the special damages by admissible evidence. That the case of SEELL BP LTD V. COLE & ORS (1978) 11 NSSC 96 cited by the Appellants’ Counsel does not apply to the facts of this case in that the rejection referred to in the case cited arose because the evidence in question was inadmissible on grounds of hearsay which is not so in the instant case. He referred to the cases of REYNOLDS CONSTRUCTION COMPANY (NIG.) LTD V. EDOMWONYI (2003) 4 NWLR (PT 811) 513 AT 535; NEPA V. ALLI (1992) 8 NWLR (PT 259) 279 to submit that the Respondent discharged the burden of proving special damages.
On the issue of general damages, learned Counsel submitted that the claim for general damages made by the Respondent was distinct from his claim for special damages. He submitted that apart from his claim for loss of specific items, he is also entitled to damages for loss of some intangible losses he suffered like reputation, mental anguish etc which are not easily assessed and fall under general damages. He relied on the case of ROCKONOH PROPERTY COMPANY LTD V. NITEL PLC (2001) 14 NWLR (PT 133) 468 AT 493 to submit that the learned trial Judge was right to award general damages because there was sufficient evidence to support that.
It is also the submission of learned counsel that there is no basis for the remittance of this case to the Lower Court for retrial as canvassed by the Appellants’ Counsel. He submitted that this Court has powers under Section 16 of the Court of Anneal Act 1976, to assume the function of the trial Court, relying on the case of SHELL BP LTD V. COLE & ORS (SUPRA) AT PAGE 102. It is his view that the credibility of the PW1 was never challenged and the evidence should be given the fullest probative value. The Court was urged to resolve this issue in favour of the Respondent.
In his reply, learned Counsel for the Appellants submitted that the Respondent only gave a superficial evidence of his claim for special damages while the law enjoins him to prove same strictly, he referred to the case of ENTINWASA OMORESIE VS. MATHEW OMIGIE & ANOR (1990) 2 NWLR (PT 13) 29 to submit that items (c) to (iv) of the Respondents claim for special damages have not been proved strictly.
This issue challenges both the awards of special and general damages by the trial Court on the ground that special damages were not proved as required by law and the basis for the grant of the general damages has not been explained by the learned trial Judge and that the Respondent has not called witnesses to prove same other than his own viva voce before the Court.
It is trite that a claim for damages could only arise if there is a breach of any legal duty to the claimant. Damages are therefore compensation in money. There are sums of money given to a successful Plaintiff as a compensation for loss or harm of any kind. Once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may amount to double compensation.
Damages are therefore classified into, “special damages” and “general damages.” For a claim for special damages to succeed, it must be pleaded and proved strictly as the Court is not entitled to make its own estimates on such an issue without such proof. A feature of the claim for special damages is that there must be viva voce evidence of the items of claim specifically itemized in the pleadings. See ODULAJA V. HADDAD (1973) 1 ALL NLR 836. DUMEZ (NIG.) LTD V. OGBOLI (1972) 3 SC 196; SDPC (NIG.) LTD. V. TIEBO VII (2005) 9 NWLR (PT 931) 439.
In STIRLING CIVIL ENG (NIG.) LTD. V. YAHAYA (2005) 11 NWLR (PT. 935) 81. the Court held that:
“A feature of the claim for Special damages is that there must be viva voce evidence of the item of claim specifically itemized in the pleading.”
Thus, strict proof in relation to special damages means no more than proof that will easily lend itself to substantially exact calculation of the damages suffered. In the instant case, the Respondent gave evidence which was neither contradicted nor challenged. What other evidence does the Appellants require from the Respondent than the viva voce of the Respondent himself? The Appellant themselves attested to the fact that the Respondent is a business man. The Respondent testified that apart from being a businessman that he is a known successful industrialist and a transporter and he has fleet of Lories. He gave unchallenged evidence of all the heads of special damages he claimed. See page 33 lines 5 – 30 of the records. It was also established by evidence that the Respondent suffered both mental and Psychological anguish as a result of the acts of the Appellants and that his reputation was also damaged. See page 33 line 8, 12 – 15 of the records.
General damages are damages at large in that there is no strict rule regarding it. The yardstick in assessing general damages is that of a reasonable mean on the street. The inconveniences suffered are what can be deciphered from the totality of the evidence proffered by the parties. Thus, it is the duty of the trial Court to assess general damages having regard to the sufferings by the claimant. The trial Court considered all the relevant facts and awarded the sum of N200, 000.00 as general damages to the Respondent. However, the Respondent asked for N49, 181.00 general damages only. The learned trial Judge ought not to have granted him the sum of N200, 000.00 he has not asked for.
It is not the law that where special damages are awarded, general damages cannot be awarded. Each award is dictated by the evidence adduced as well as other surrounding circumstances of the case. Therefore, the fact that trial court had awarded special damages in favour of the Respondent did not preclude it from awarding general damages in favour of the Respondent. See SBN PLC V. CBN (2009) 6 NWLR (PT 1137) 232: AND N.N.B. PLC V. DENCLAG LTD (2005) 4 NWLR (PT 916) 549.
It is trite that before an appeal court tampers with an award of damages made by a trial Court it must be established by a complainant that:
i) The award was either too low or too excessive, or
ii) That the award was not made in keeping with the claim pleaded by the claimant; or
iii) That the award was made in violation of law.
In the instant case, the award for general damages is manifestly on the high side or it is too excessive and the Court will interfere to bring it inline with what the Respondent asked for before the trial Court, which amount is N49, 181.00. See SABRU MOTORS LTD V. RAJAF ENT. (2002) 7 NWLR (PT 766) 246: ODURO V. DAVIS (1952) 14 WACA 26. UBN PLC V. OKOKOR (2002) 10 NWLR (PT 774) 1 AT 19.
Based on the above, I also resolve this issue against the Appellants save for the award of general damages which is now reduced from N200, 000.00 to N49, 181.00. On the whole the appeal therefore fails as it is devoid of any merit. The judgment of the Lower court delivered on the 24th day of November, is hereby affirmed. There shall be cost assessed at N30, 000.00 in favour of the Respondent against the Appellants.
MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother UWANI MUSA ABBA, AJI (PJ).
I agree with the reasoning and conclusion. I also agree that Appellant’s conviction for the offence of murder be affirmed.
HARUNA M. TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, UWANI MUSA ABBA AJI, JCA (Presiding).
His Lordship has admirably summed up and resolved the issues that arose for determination in this appeal. I agree entirely with the reasoning and conclusion arrived at by my learned brother. I have nothing else to add.
I abide by the order as to costs.
Appearances
Chief K. K. Ogba, ESQ, with E. A. Ozara, ESQFor Appellant
AND
N. A. Nnawuchi, ESQ with I. P. Ananaba, ESQFor Respondent
