J.O. ELUMEZE V. PAT ONEGBEDAN
(2011)LCN/5059(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/B/20/2008
RATIO
THE POSITION OF THE LAW ON THE PRINCIPLE OF FAIR HEARING
Fair hearing involves the public policy that judicial proceedings shall not be allowed to fall below certain standards namely a standard that trial of cases must be fair. Therefore it is an immutable demand of fairness that justice must be even handed. That demand is not subjective but objective. See ARIORI V. ELEMO (1983) 2 NWLR (Pt. 76) Page 333 at 347. Fair hearing therefore incorporates a trial done in accordance with the rules of natural justice. The duty of every trial court whether in civil or criminal jurisdiction is to hold even balance between the contending parties to a dispute and nothing must be done to detract from that. This is a fundamental norm in the system of administration of justice we operate. That duty involves a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. See ARIORI V. ELEMO (1983) 1 SC. 13 at 24. ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (Pt. 75) 201 at 217. Fair hearing, includes an opportunity to be heard. So where a party to a case has been given an opportunity to present his case and he fails to do so or toys with that opportunity he cannot turn round to complain of lack of fair hearing. As was observed by OPUTA JSC in ARIORI V. ELEMO Supra at pages 341 and 343: “The question now is what does this right of fair hearing imply? First and foremost it implies (at least in civil cases) that both sides be given an opportunity to present their respective cases. It implies that each side he entitled to know what case is being made against it and be given an opportunity to reply … what fair trial or fair hearing entails is to give each side opportunity to present its case.” PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
DISCRETIONARY RIGHT OF THE TRIAL COURT
The matter of extension of time to do an act after the prescribed time to do the act by a party to a case is one within the discretion of a court hearing such a matter. Therefore, where a court has exercised its discretion judicially and judiciously, an appellate court will not intervene. See ADEJUMO v. AYANTEGBE (1989) 3 NWLR (pt. 110) 417 at 445. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CIRCUMSTANCES WHERE EXEMPLARY DAMAGES ARE AWARDED
Exemplary damages are awarded in the following three circumstances:
(a) in oppressive, arbitrary and unconstitutional action by servants of the Government;
(b) cases in which the Defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to a claimant; and
(c) in any other situation or category in which exemplary damages are expressly authorized by statute.
See ELIOCHIN’S Case Supra at page 67.
See also ODIBA V. MUEME (1999) 70 L.R.C.N. Page 2038 at 2044; and OBINWA V. C.O.P. (2007) 11 NWLR (pt. 1045) 411 at 426 – 427. It is therefore my view that before an award is made in exemplary damages it must be specifically claimed as a head of claim and the facts leading to it as head of claim pleaded and proved. See A.G. FEDERATION V. AJAYI (2000) 12 NWLR (Pt. 682) 509 at 536. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
Before Their Lordships
AMIRU SANUSIJustice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMIJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
Between
J.O. ELUMEZEAppellant(s)
AND
PAT ONEGBEDANRespondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the leading Judgment): The Respondent in this appeal as the Plaintiff at the lower court had commenced proceedings by Writ of Summons at the said court against the Appellant as Defendant claiming the sum of N2, 000,000.00 (Two Million naira) in damages for assault and battery as borne out by page 2 of the Record of Appeal. The Respondent filed his Statement of Claim. Both the Writ of Summons and the Statement of Claim were duly served on the Appellant but he did not file any defence thereto as a result of which, after several adjournments and service of hearing notices, the Respondent commenced and closed his case.
However, before the Respondent’s counsel addressed the court on the case as presented by the Respondent, the Appellant brought an application for extension of time to enter appearance in the Suit and filed his Statement of Defence which was exhibited thereto. That application was supported by an affidavit. The Respondent filed a counter-affidavit in opposition. The trial Judge took arguments from counsel for the parties on that application at the conclusion of which, that court refused the application for extension of time. The case then proceeded on the basis of the case presented by the Respondent at the end of which the lower court in a considered Judgment found for the Respondent and awarded the sum of N 1.5 million in exemplary damages in favour of the Respondent.
Dissatisfied with the Judgment, the Appellant has now appealed to this court on three Grounds which devoid of their particulars, are herein set out. They read:
GROUND ONE
The learned trial Judge erred in law when he granted exemplary damages to the respondent though same was neither pleaded nor proved by the Respondent.
GROUND TWO
The trial Judge erred in law when he held that he did not deny the Appellant fair hearing by refusing to extend time within which he was to file his Statement of Defence.
GROUND THREE
The learned trial Judge erred in law when he awarded the Respondent damages and/or the Excessive quantum thereof whereas (sic) entitlement to same was not established at the hearing as required by law.”
Three issues as set out by the Appellant at page 3 of his brief were accepted by the Respondent as arising for the determination of this court. Those issues are:
(1) Whether the learned trial Judge was right to hold that he did not deny the Appellant fair hearing.
(2) Whether the learned trial Judge was right to have granted exemplary damages when same was not pleaded, nor claimed by the Respondent.
(3) Whether the award of exemplary damages was not excessive.”
Taking the first issue, learned counsel for the Appellant, Mr. Odibeli, contended that the Appellant was denied fair hearing by the learned trial Judge in not granting Appellant’s application for extension of time to file his defence to the action which was exhibited to the application inspite of the reasons given for the default in filing within the time. Learned counsel argued that the continued absence of the Appellant from court at the proceedings, which he said influenced the learned trial Judge’s decision to refuse the application for extension of time, did not “stall the proceedings”. He then argued that the trial Judge ought to have given Appellant opportunity to present his defence more so when his “proposed Statement of Defence” was exhibited to the application for extension of time.
Furthermore, learned counsel argued that the learned trial Judge ought to have ordered that a hearing notice be served on the Appellant to inform him of a new date when his counsel withdrew his representation for the Appellant on 23/5/05.
In his reply to the foregoing submissions on this issue, learned counsel for the Respondent, Mr. Chukwudi, in his brief, submitted that the Appellant was given fair hearing or ample opportunity to be heard.
Referring to the lower court’s survey of the history of the case and the Appellant’s conduct in the matter, learned counsel argued that the trial Judge adequately indulged the Appellant and created the proper atmosphere and environment for the fair hearing of the case as outlined in the principle of the decisions in NEWSWATCH COMMUNICATIONS LTD. V. ATTA (2006) ALL FWLR (Pt.318) page 580 at 601 per Niki Tobi JSC;
BILL CONSTRUCTION CO. LTD. V. IMANI & SONS LTD (2006) 19 NWLR (Pt. 1013) page 1 at 14 per Onnoghen JSC and other cases along the same principle. If a party to a case, as in the instant case, he argued, chose to take the machinery of justice for granted and embarked upon a wanton act of disregard to judicial process, inspite of the opportunities offered him to be heard, he cannot turn around to complain of want of fair hearing.
Fair hearing involves the public policy that judicial proceedings shall not be allowed to fall below certain standards namely a standard that trial of cases must be fair. Therefore it is an immutable demand of fairness that justice must be even handed. That demand is not subjective but objective. See ARIORI V. ELEMO (1983) 2 NWLR (Pt. 76) Page 333 at 347. Fair hearing therefore incorporates a trial done in accordance with the rules of natural justice. The duty of every trial court whether in civil or criminal jurisdiction is to hold even balance between the contending parties to a dispute and nothing must be done to detract from that. This is a fundamental norm in the system of administration of justice we operate. That duty involves a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.
See ARIORI V. ELEMO (1983) 1 SC. 13 at 24. ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (Pt. 75) 201 at 217. Fair hearing, includes an opportunity to be heard. So where a party to a case has been given an opportunity to present his case and he fails to do so or toys with that opportunity he cannot turn round to complain of lack of fair hearing. As was observed by OPUTA JSC in ARIORI V. ELEMO Supra at pages 341 and 343:
“The question now is what does this right of fair hearing imply? First and foremost it implies (at least in civil cases) that both sides be given an opportunity to present their respective cases. It implies that each side he entitled to know what case is being made against it and be given an opportunity to reply … what fair trial or fair hearing entails is to give each side opportunity to present its case.”
To appreciate the foregoing principles of law on fair hearing in the determination of this first issue, one must understand the background and circumstances of the case leading to the Judgment of the lower court now on appeal before us.
As I said in the opening portions of this Judgment, the Respondent had sued the Appellant at the lower court in damages for assault and battery on 18/2/04. He filed his Statement of Claim which was served on the Appellant along with the Writ of Summons. A chronicle of the facts as revealed in both the ruling of the court on the motion for extension of time delivered on 18/5/05 and its judgment delivered on 13/6/05 show that inspite of the service on the Appellant of the Writ of Summons, the Statement of Claim and various hearing notices served on him, he ignored both the court processes and indeed the court as set out at pages 18-20 and 44 -46 of the Record of Appeal. No statement of defence was filed. It was on 1/3/05 more than one year after the Suit was filed and after almost one year after the statement of claim was served on him and the Respondent had testified in proof of his case, that Appellant filed a motion for extension of time to enter appearance and file a defence to the action. The main ground for that application as shown in paragraph 4 of the supporting affidavit at page 7 of the Record of Appeal was that he was ill and had financial problem.
The Respondent, in opposition filed a counter-affidavit in which he denied the ill-health of the Applicant and asserted that Appellant was regular in the school where he taught between April 2004 and February 2005.
The learned trial Judge took arguments on the motion as shown from the ruling of the court at pages 13-16 of the records and refused the application. In a considered ruling on the application, the learned trial Judge after posing the question whether on the application the Appellant had “discharged the obligation on him to place sufficient or concrete materials before the court to justify the exercise of its discretion in his favour”. He set out the seven paragraph affidavit of the Appellant supporting the motion and also referred to several paragraphs of the counter-affidavit and observed, inter alia, at pages 24 – 25 as follows:
“In the first place, paragraph 4 of the Applicant’s affidavit which contains that allegation is bereft of sufficient materials or particulars. Applicant did not aver to the nature of the illness, when it began and when he became well. Secondly, contrary to the laughable proposition by Applicant’s counsel that this is not a case in which a medical certificate is desirable, he ought to have submitted a medical certificate in vindication of allegation that he was ill. Even if he had not deemed it necessary initially to exhibit a medial certificate, once Respondent had in paragraph 12 of his counter-affidavit averred that no cogent reason had been advanced by the Applicant to justify the inordinate delay and in paragraph 13 denied that the Applicant was ever ill, it became incumbent upon the latter to exhibit one…”
The court then went ahead to consider other aspects of the matter including the attitude of the Appellant towards the case in the face of the service of the various court processes on him at pages 24 – 25 before reaching the conclusion that:
“It is clear from the facts and/or circumstances carefully xrayed above that the story of ill-health now put forward by Applicant is a ruse founded upon brazen after-thought designed to deceive this court into exercising its discretion in his favour…”
He then dismissed the application.
In this regard it cannot be said that the Appellant was not given a fair hearing in relation to the motion for extension of time. The matter of extension of time to do an act after the prescribed time to do the act by a party to a case is one within the discretion of a court hearing such a matter. Therefore, where a court has exercised its discretion judicially and judiciously, an appellate court will not intervene.
See ADEJUMO v. AYANTEGBE (1989) 3 NWLR (pt. 110) 417 at 445. I am of the firm view that on the facts and circumstances of this matter the trial Judge properly exercised his discretion in refusing the application for extension of time.
Now in relation to the substantive case, the facts and circumstances follow closely those relating to the application for extension of time such that they are intertwined. The Judgment of the lower court appealed against x-rayed the history of the case and the attitude of the Appellant thereto. It is obvious from those facts and circumstances that the lower court created ample conducive atmosphere and environment for the Appellant to put across his case.
Indeed the lower court bent far backwards to adjourn the matter several times to accommodate the Appellant but he chose to toy with the several opportunities. The facts outlined in this Judgment clearly show thus. Justice is justice for both sides in litigation and where a party to a case deliberately holds down his adversary in a case in court, justice also demands he cannot be allowed to do so. I agree with learned Respondent’s counsel that the first issue should be resolved in the affirmative and it is hereby so resolved. Ground 2 of the Grounds of Appeal therefore fails.
On Grounds 1 and 3 of the Grounds of Appeal, learned counsel for the Appellant contended, in summary that there was no claim or pleading for exemplary damages in the Suit but that the lower court went out of its way to award exemplary damages of N1.5 million. It was, therefore, erroneous he argued, for the Judge to make such an award. In the alternative, counsel submitted, the award of N1.5 million was excessive having regard to the fact pleaded by the Respondent and given in evidence by him that the Appellant was a Mathematics Teacher in the University of Benin Demonstration School relying on the decision in A.G. OF THE FEDERATION v. AJAYI (2000) 12 NWLR (Pt. 682) page 509 at 537 – 538.
In his reply, learned counsel for the Respondent submitted that the lower court was right in the award of exemplary damages in the matter in the light of the findings of that court on the gross liability of the Defendant. He argued that Respondent could not be denied the entitlement merely because the pleading was not couched in technical terms. The oppressive and vicious attack on the Respondent as pleaded in the Statement of claim, his unchallenged evidence on the point and the findings of the court on that ground is a justification for the award. On the argument of its excessive nature, counsel submitted that exemplary damages were not only based on the social and economic status of a tort feasor, but also on the gravity of the tort committed and the damage or the humiliation suffered by the victim. He referred to the evidence on the point and submitted that the quantum of the damage awarded was proper in law.
I have carefully read the pleadings of the Respondent in this matter with studious attention. I have also read carefully the evidence led by him in support thereof. It must be noted that no statement of defence was filed, the application for extension of time having been refused. No contrary evidence was led by the Appellant and could not have been led by him in the circumstance. What this means is that both the pleading of the Respondent and his evidence thereon stood undenied and unchallenged. This further implies that the lower court was bound to accept them unless there was something inherently defective in either or both. But there was none.
Now paragraphs 6, 7, 8 and 9 of the statement, pleaded facts of deliberate and calculated invidious, vicious and highly unwarranted attack on the Respondent. The unchallenged evidence of the Respondent at pages 33-34 of the Record of Appeal confirm and adumberate the pleadings.
After reviewing the evidence at pages 48-51 of the Records, the trial Judge made his findings on the unchallenged evidence and believed the case presented by the Respondent. At page 63 of the Record of Appeal, the trial Judge observed that the acts of the Appellant against the Respondent amounted to
“Cruelty, insolence, and contumelious disregard to Plaintiff’s rights. More importantly, in consideration of Plaintiff’s social status as a Legal Practitioner with experience as such spanning a period of over three decades, the acts of the Defendant against him, especially so that Plaintiff took the earliest opportunity to introduce himself as a legal Practitioner, constitute graver and wanton insolence … and having been sued to answer for his conduct, he turned his back to the court. This was so inspite of evidence which abound that he was duty served with the relevant processes of court, thus taking the machinery of justice to the cleaners…”
He then proceeded to state that he had highlighted the relevant factors that abound in the case to make the award of exemplary damages possible and so awarded exemplary damages which are one of the complaints in this appeal. The ground for this complaint being that the award was not specifically pleaded.
I must say that the primary object of award of damages is either to compensate a Plaintiff for harm done to him or to punish a Defendant for his conduct in inflicting the harm. The alternative object is generally achieved by awarding what is referred to as exemplary damages, punitive damages, vindictive damages or retributory damages in appropriate circumstances. See ELIOCHIN (NIG) LTD. v. MBADIWE (1986) 1 NWLR (pt. 14) 47 at 65.
Reliance is no longer placed on technical pleadings. Once facts which establish a principle that Ground claim are pleaded, such facts can attract the consideration of the court.
See C.B.N. v. OKOJIE (2004) to NWLR (pt 882) 488 at 520.
In the instant case, the conduct of the Appellant in his handling of the Respondent were amply articulated and pleaded in a manner that depicted high handedness, insolence, humiliation, outrage and contempt. The conduct violates civilization and ought to attract condemnation. But whether such a condemnation can give rise to exemplary damage without a specific claim for it is a different consideration. The Appellant contended that it cannot while the Respondent argued that it can.
In the instance there was no specific claim for exemplary damages even though facts that could ground it were pleaded. The claim was only for general damages as borne out by paragraph 11 of the Statement of Claim at page 4 of the Record of Appeal. In the ELIOCHIN’S Case, Supra relied upon by the Respondent’s counsel in paragraph 4.3 of his brief at page 3 thereof, there was a Specific Claim of N100, 000.00 in exemplary damages. In OKOJIE’S Case the observation was to the effect that where facts in a pleading support the claim, there pleaded would be no need to plead exemplary damages as a fact. I take it to mean that if exemplary damage is claimed as a relief, then facts that will support that relief will be contained in the body of the pleading without necessarily pleading it as a fact as distinct from claiming it as a relief.
That this should be so appears to me clear from the decision in ELIOCHIN’S Case supra where even though the Supreme Court observed that the decision in ROOKS v. BERNARD (1961) A.C. 1129 is not binding on it having been given in 1964 by the House of Lords it held that it was good law in Nigeria that exemplary damages can be awarded by Nigerian Courts when Claimed and proved. (Underlining supplied). To make a claim in a Suit is to ask for a relief. The ELIOCHIN’S Case also established that general damages if proved can be awarded where exemplary damages are Claimed but not proved.
Besides, exemplary damages are in the nature of aggravated damages as it is not possible to demarcate them.
Exemplary damages are awarded in the following three circumstances:
(a) in oppressive, arbitrary and unconstitutional action by servants of the Government;
(b) cases in which the Defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to a claimant; and
(c) in any other situation or category in which exemplary damages are expressly authorized by statute.
See ELIOCHIN’S Case Supra at page 67.
See also ODIBA V. MUEME (1999) 70 L.R.C.N. Page 2038 at 2044;
and OBINWA V. C.O.P. (2007) 11 NWLR (pt. 1045) 411 at 426 – 427.
It is therefore my view that before an award is made in exemplary damages it must be specifically claimed as a head of claim and the facts leading to it as head of claim pleaded and proved.
See A.G. FEDERATION V. AJAYI (2000) 12 NWLR (Pt. 682) 509 at 536.
As I said, the Respondent did not claim exemplary damages as a relief or head of claim. His claim was in general damages. It was therefore wrong for the learned trial Judge to have awarded exemplary damages. However, general damages were proved and the award of the lower court should have been in general damages claimed. In the circumstance, the 2nd issue is resolved in favour of the Appellant. Ground one of the Grounds of Appeal therefore succeeds. The success of this ground renders a consideration of the 3rd issue founded on Ground Three of the Grounds of Appeal unnecessary.
In the final result, the appeal succeeds in part only. The failure of Ground Two of the Grounds of Appeal and the observations I made above on general damages make that award unnecessary. The Judgment of the lower court is modified in the circumstance. The Respondent as Plaintiff in the lower court is awarded the sum of N1, 000,000.00 (One Million Naira) as general damages for assault and battery. I make no order as to costs.
AMIRU SANUSI, J.C.A.: I read before now the judgment of my learned brother NWOSU-IHEME, JCA. I am in entire agreement with her reasoning and the conclusion reached therein. I also agree that the appeal has merit partially and I allow it in part to the extent that the appellant is entitled to award of One Million Naira only (N1, 000.000.00) as general damages for assault and battery. I accordingly award him that the said sum. No costs is however awarded.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have had the advantage of reading in draft the Judgment delivered by my learned brother NWOSU-IHEME J.C.A. I agree with the reasoning and the decision therein.
The respondent in this appeal did not claim exemplary damage as a relief. It was therefore wrong for the trial Judge to have awarded the exemplary damages. A Court has no power to grant a relief not sought by a party. ILONA V. IDAKWO (2003) 11 NWLR (pt. 830) 53 SC.
The appeal succeeds in part, I agree with the award made by my learned brother. No order as to cost.
Appearances
J.I. ODIBELI
M. O. OJOGHOFor Appellant
AND
C. UDEH
C. ONUORAFor Respondent
