MT SEA PIONEER & ORS v. ADEYEYE
(2022)LCN/17140(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/L/1304/2017
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
1. MT SEA PIONEER 2. SEA TRANSPORT NIG. LTD 3. ALHAJI AMINU UMARU APPELANT(S)
And
OWOADE ADEYEYE RESPONDENT(S)
RATIO
THE SERVICE OF ORIGINATING PROCESSES ON A DEFENDANT AS A CONDITION PRECEDENT FOR THE COURT TO EXERCISE JURISDICTION ON A MATTER
It has been a settled issue that service of originating processes on a Defendant is a fundamental condition precedent to the Court’s exercise of its jurisdiction to hear and determine any case. Service of originating process is very crucial to the competence and indeed the jurisdiction of the Court because it is the foundation of the structure of litigation. It is a constitutional issue bordering on the principle of fair hearing. Where an originating process is not served on a Defendant or a Respondent in an appeal, the Court proceedings, including any judgment or decision resulting from such proceedings is rendered a nullity. See Ihedioha & Anor vs. Okorocha & Ors (2015) LPELR-40837 (SC) AT 69-70; Adegbola vs. Osiyi & Ors (2017) LPELR-42471 (SC) AT 18-19; Idisi vs. Ecodril (Nig) Ltd & Ors (2016) LPELR-40438 (SC) AT 23-25; Fidelity Bank Plc vs. MT Tabora & Ors (2018) LPELR-44504 (SC).
The essence of service of Court process is to adequately notify the person served or the defendant of the existence of the suit or claim against him to enable him defend same should he desire so to do. See Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR-2505 (SC).
The fundamental nature of service of Court process on parties is such that absence of it robes the Court of any jurisdiction that it would otherwise have had, because it is a condition precedent to the exercise of jurisdiction by Court. Authorities are legion on the point, that service of Court process on the opposing party is crucial and fundamental as it is the service of the process that gives the Court the jurisdiction and the competence to entertain and make pronouncement on such Court process. Without service, the jurisdiction of the Court cannot be activated with respect to such process. Failure to serve process where service of the said is required is a failure which goes to the root of the adjudication process. The prominent exception to this rule is ex-parte application, where the opposing party is not expected to be put on notice. It is settled law that in proceedings where service of process is required, failure to serve process on the other party or parties is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 (SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). In the case of Eimskip Ltd vs. Exquisite Industries (Nig) Ltd (2003) LPELR-1058 (SC), Niki Tobi, JSC, had this to say on the effect of non-service of Court process:
“Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will assume and rightly too for that matter, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. In the often cited case of Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6, Nnnamani, JSC., relying on the English decision of Craig v. Kanseen (1943) 1 QB 256, held that failure to serve Court process goes to the issue of competence and jurisdiction of the Court and in such a case, the proceedings are a nullity and any orders made would also be nullities. In Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548, the Supreme Court referred to its earlier decision in Skenconsult and held that it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conception of the proper procedure in litigation.”
It has equally been held by the apex Court, times without number, that non-service of Court process on a party, where service is required, amounts to breach of the party’s right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC), Ihedioha vs. Okorocha (supra), Achuzia vs. Ogbomah (2016) LPELR-40050 (SC); Okeke vs. Lawal & Ors (2018) LPELR-43920. In the recent case of Michael K. Aondoakaa, SAN vs. Emmanuel Bassey Obot (2021) LPELR-56605 (SC) AT 14-15, the Supreme Court, speaking through Kekere-Ekun, JSC, reiterated the trite principle in the following words:
“It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit. Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity. See Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 AT 26; Mgbenwelu vs Olumba (2016) LPELR-42811 (SC) AT 36-37 E -D.” PER SIRAJO, J.C.A.
DEFINITION OF “NEGLIGENCE”
Black’s Law Dictionary, 8th Edition, defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. It is a careless behaviour, lacking proper care and attention. Going down memory lane in the development of the common law tort of negligence, Muhammad, JSC, (now CJN), in the case of Okwejiminor vs. Gbakeji & Anor (2008) LPELR-2537 AT 50-51, said:
“Alderson B, in the old case of Blyth v. Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784, defined negligence as follows: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Seventy-eight years thereafter, Lord Wright had this to say in defining negligence: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” See the case of Lochgelly Iron and Coal Co. v. M’mullan (1934) A.C. 1 at P. 25. The latter definition spells out for us the three basic components of the torts of negligence: [a] duty of care [b] breach of the duty of care [c] damage caused by the breach.”
See also Rabiu Hamza vs. Peter Kure (2010) LPELR-1351.
The breakdown from the above passage is that negligence is the breach of legal duty of care owed by the Defendant, which results in damage or injury to the Plaintiff. Therefore, the ingredients of the tort of negligence are (a) a legal duty owed to the Plaintiff by the Defendant to exercise care within the scope of his duty; (b) the breach of the said duty; and (c) the consequential damage or injury caused to the Plaintiff. For a Plaintiff to succeed in a claim founded on negligence, these three ingredients must be proved on preponderance of evidence. PER SIRAJO, J.C.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): By a Notice of Appeal founded on four grounds of appeal dated and filed on 8th August, 2017, the Appellants challenged the judgment of the Federal High Court, Lagos Division (the lower Court) in Suit No. FHC/L/CS/1612/2013, delivered by I.N. Buba, J., on the 7th day of July 2017. On 14/03/2018, the Appellant filed an Amended Notice of appeal containing five (5) grounds of appeal and was deemed properly filed on 06/07/2021. Before the lower Court, the Appellant and the Respondent were the Defendants and Plaintiff respectively. As Plaintiff before the lower Court, the Respondent claimed the following reliefs against the Defendants/Appellants at paragraph 27 of his Statement of claim:
a. AN ORDER directing the 1st, 2nd and 3rd defendants to pay the sum of N100,000,000 (One Hundred Million) jointly and/or severally to the plaintiff being damages suffered as a result of the negligence of the 1st, 2nd and 3rd defendants.
b. AN ORDER directing the 1st, 2nd and 3rd defendants to bear the cost of carrying out of adequate surgery on the plaintiff at a reputable hospital.
c. AN ORDER compelling the defendants jointly and/or severally to apologize to the plaintiff through a letter of apology that must be published in three National dailies.
d. Cost of this action.
The Appellants/Defendants denied the claim and the matter proceeded to trial. While the Respondent called two witnesses, the Appellants called a sole witness. At the end of trial, the lower Court entered Judgment for the Respondent in the following terms:
“(i). An Order directing the 1st, 2nd and 3rd Defendants to pay the sum of N100,000,000 (One Hundred Million Naira) jointly and/or severally to the Plaintiff being damages suffered as a result of the negligence of the 1st, 2nd and 3rd Defendants.
(ii). An Order directing the 1st, 2nd and 3rd defendants to bear the cost of carrying out of adequate surgery on the plaintiff at a reputable hospital.
(iii). An Order compelling the defendants jointly and/or severally to apologize to the plaintiff through a letter of apology that must be published in three National dailies.”
It is this judgment that the Appellant appealed against.
The background facts that led to the initiation of the action at the lower Court can be summarized thus: As a commercial transporter with a Volkswagen space bus, the Respondent was, on 4th July, 2011, hired by the 2nd and 3rd Appellants through their agents/crew members of the 1st Appellant to convey C-Way bottle water from Ajori market to Waziri Jetty, Apapa, Lagos, where the 1st Appellant anchored. He conveyed the crew members and their goods to the Jetty. As he was moving the bottle water close to the 1st Appellant on the request of the crew members for his assistance, an explosion occurred caused by the breakage of 1st Appellant’s hose, which hit and severely injured him. Instead of rendering help to him the crew members on board the 1st Appellant only threw down a stretcher to help move him away from the scene of the accident. The 1st Appellant hurriedly sailed out of the Jetty to avoid arrest, leaving the Respondent in pain and in the pool of his blood. The General Hospital, Apapa, where he was rushed to, referred him to Lagos Island General Hospital as the severity of the injury was beyond what they could handle. The Hospital recommended the amputation of his right leg but he opted to go to a traditional Orthopaedic home when he could not afford the cost of surgery at the Hospital. During the nine months period of treatment, the Appellants neither rendered any assistance to the Respondent nor send a goodwill message to him. His attempt to see the 3rd Appellant with the Doctor’s report was blocked, just as his letter to the Appellants was not responded to, hence his resort to Court action.
After the filing of the Notice of Appeal and the transmission of Record, learned counsel for the parties filed and exchanged written Briefs of Argument in compliance with the rules of this Court, as follows:
1. The Appellants’ Brief of Argument settled by Sylva Ogwemoh, SAN, with Wahab Dako, Adeniyi Joshua and Chibueze Muobuikwu but signed by Wahab Dako, was filed on 14/03/2018 but deemed to have been properly filed and served on 06/07/2021.
2. The Respondent’s Brief of Argument settled by Augustine Idume Chukwu was filed on 02/07/2021 but deemed properly filed and served by an order of Court made on 12/05/2022.
3. The Appellants’ Reply Brief, signed by Wahab Dako, was filed on 19/07/2021 but deemed properly filed and served on 12/05/2022.
When the appeal was called for hearing on 12/05/2022, learned counsel for the Appellant, Wahab Dako with Ruth Nwankwo, adopted the Appellant’s Brief of Argument and the Reply Brief as representing the Appellants’ argument in the appeal in urging the Court to allow the appeal. On behalf of the Respondent, A.I. Chukwu, Esq., adopted the Respondent’s Brief of Argument and urged the Court to dismiss the appeal.
In the Appellants’ Brief, four issues were distilled for the determination of the appeal, couched thus:
“(i) Whether or not the learned trial Judge was right in assuming jurisdiction and competence to hear and determine the suit before it even when it was clear the Appellants were not served with the originating process of the suit.
This issue arose from Ground 1 of the Notice of Appeal.
(ii) Whether or not the learned trial Judge was right in holding that the Appellants were liable to the Respondent in negligence and thereby entering judgment against the Appellants for an act that was not committed by the Appellants.
This issue arose from Grounds 2 and 5 of the Notice of Appeal.
(iii) Whether or not learned trial Judge was right in entering judgment against the 2nd and 3rd Appellants, who from the evidence before the Court, were not the owners of the 1st Appellant and had no interest in the 1st Appellant, which the Respondent alleged caused injury to him.
This issue arose from Ground 3 of the Notice of Appeal.
(iv) Whether or not awarding the sum of ₦100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants and in favour of the Respondent was not perverse, unjustified, unwarranted and ridiculous.
This issue arose from Ground 4 of the Notice of Appeal.”
Like the Appellant, the Respondent also crafted four issues for determination in the following words:
For all intents and purposes, the issues formulated by the Respondent is not dissimilar to that of the Appellant. The only difference is that each party tailored the construction of the issues to suit their stand and what they want before the Court. In substance however, the issues are the same. For this reason, I will adopt the issues submitted by the Appellant in the resolution of this appeal.
Arguments on Issue 1
Learned counsel for the Appellant submitted that the learned trial Judge erred in law when he assumed jurisdiction and competence to hear and determine the suit before him in spite of the fact that the Appellants were not served with the originating process of the suit. He submitted that the law is trite that jurisdiction is the very basis upon which any Court or tribunal can try a case because any trial conducted without jurisdiction is a nullity. He posited that the law is settled that originating process in a suit must be served on the Defendant(s) personally and that failure to serve the originating process in a suit on the Defendant(s) robs the Court of the jurisdiction to hear the suit and it is not enough that the Defendants allegedly knew or were informed that a suit has been pending against them. He referred to the cases of Estate of Late Chief H.I.S. Idisi vs. Ecodril (2016) 12 NWLR (Pt. 1527) 355 AT 376, Alhaji Mohammed vs. Chief Babalola, SAN (2012) 5 NWLR (Pt. 1293) 395 AT 434, Nkpornwi vs. Ejire (2009) 9 NWLR, (Pt.1145) 131 AT 169, Ononye vs. Chukwuma (2005) 17 NWLR, (Pt. 953) 90 at 114-115.
It was contended that in the instant case, the 1st Appellant was not served personally with the originating process in respect of this suit, while the 2nd and 3rd Appellants were not served at all. The law is also trite that affidavit of service is the conclusive evidence of service where a question of service is in issue – Estate of Late Chief H.I.S. Idisi v. Ecodril supra at 379. Learned counsel maintained that the affidavit of service deposed to by one Mr. Efik Dennis, a Bailiff of the Federal High Court, on 29th April, 2014 at page 90 of the Record of Appeal shows that the originating process in respect of this suit was only served on one Abubakar Mohammed (AGM) who was not a party to the suit and does not represent or act for any of the Appellants in the suit at the lower Court. He noted that the said affidavit of service was the only proof of service of the originating process.
He contended that by the nature of the suit before the lower Court, the 1st Appellant, which is a Vessel, ought to have been served in compliance with the provision of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011; the 2nd Appellant, a limited liability company, ought to have been served in compliance with the provision of Section 78 of the Companies and Allied Matters Act, 2004 and Order 6, Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009 while the 3rd Appellant, who is an individual, ought to have been served personally in compliance with the provision of Order 6, Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009. It was submitted that in view of the fact that the suit before the trial Court was an action in rem and the 1st Appellant was a Vessel, the Writ of Summons ought to be served on the Vessel or on the master of the Vessel.
It was further argued that the affidavit of service did not disclose whether Abubakar Mohammed who was served with the originating process was an Assistant General Manager of the 2nd Appellant or an officer or employee of the 2nd Appellant at all. Reference was made to the affidavit in support of the Appellants’ Motion on Notice dated 27th April, 2015, at page 88 of the Record wherein the Appellants deposed to the fact that Abubakar Mohammed was not an officer of the 1st and 2nd Appellants.
It was noted that the Appellants’ preliminary objection challenging the jurisdiction of the trial Court on the ground that the originating process of the Court was not served on the Appellants, was overruled by the lower Court on the ground that it was an abuse of Court process and that the Appellants having taken steps by filing Court process were deemed to have waived their right of service.
He submitted that even though all the Appellants entered conditional appearance, the law is trite that service of originating process is the determinant of Court’s jurisdiction over a matter and not the entering of conditional appearance by a Defendant, relying on the cases of Guinness (Nig) Plc vs. Ufot (2008) 2 NWLR (Pt. 1070) 52 AT 78-80, Carribean Trading & Fidelity Corp vs. NNPC (1991) 6 NWLR (Pt. 197) 352.
Counsel faulted the finding of the learned trial Judge in holding that it was too late in the day for the Appellants to contend that they were not served with the originating process in the suit because their earlier application seeking the striking out of the suit on the ground that it was statute barred was dismissed and therefore the application challenging the service of the originating processes constitute an abuse of Court process.
On the lower Court findings at pages 311 and 312 of the Record that the 2nd and 3rd Appellants having not filed any defence to the claims of the Respondent despite being represented by the same counsel that represented the 1st Appellant, were deemed to have admitted the claims of the Respondent, learned counsel submitted that the position of the learned trial Judge is in sharp contrast with the position of the law that the issue of jurisdiction is so vital that it can be raised at any stage of a case be it at trial, on appeal to Court of Appeal or to the Supreme Court. He referred to the cases of Ajayi vs. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 SC at 181; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350, and submitted that the fact that the Appellants were represented in Court does not change the age-long position of the law that each of the Appellants must be properly served lest the Court would be stripped of its jurisdiction. He further submitted that the non-service of the originating Court processes on the Appellants is a breach of the Appellants (especially the 2nd and 3rd respondents) right to fair hearing.
After quoting the dictum of Nweze, JSC, in Estate of Late Chief H.I.S. Idisi v. Ecodril (supra) at pages 376-377 of the report, counsel urged the Court to resolve the first issue for determination in favour of Appellants and hold that the proceedings and judgment of the lower Court were done without jurisdiction and therefore null and void.
On his part, learned counsel for the Respondent, Augustine Idume Chukwu submitted that considering the affidavit of service of the originating processes on the Appellants vis-a-vis the subsequent steps taken by them in the proceedings of the lower Court, the learned trial Judge rightly assumed jurisdiction and competence to hear and determine this suit. He submitted that the Appellants’ allegation of non-service of the originating process in this suit after participating fully in the proceedings of the lower Court and defended this suit on the merit is ludicrous and absurd. He noted the 1st Appellant’s admission in paragraph 3 of an affidavit in support of a motion dated 10/02/2016, contained at page 146 of the Record, that the said originating process was served on her on the 28/04/2014. He also referred to the affidavit of service of the originating processes as contained in pages 90-91 of the Records of Appeal stating that it was served on the Appellants at their registered address at 31B, Marine Road, Apapa, Lagos, by a bailiff of the trial Court wherein the Assistant General Manager of the 2nd Appellant, who in all ramifications qualifies as the principal officer of the latter, acknowledged receipt of the processes on behalf of the Appellants.
Learned counsel submitted on the settled position of the law that a party who intends to contest service of originating process is to do so at the commencement of the suit before taking steps in the proceedings, and that where he fails to do that, he cannot be heard to question the said service thereafter. He referred to the cases of Saude v. Abdullahi (1989) LPELR – 3017 (SC) (Pp. 22, paras B-G); Zakirai v. Muhammad & Ors (2017) LPELR – 42349(SC) (Pp. 45-47, paras D-E); Obadina & Ors v. Fasoyinro (2017) LPELR – 42182(CA), and argued that the Appellants belatedly raised the issue of non-service via a Motion on Notice dated 27/04/2015 which the trial Court dismissed upon finding on one hand that the relief sought by Appellants in the said motion is incompetent and on the hand that the Appellants conduct in bringing the motion itself amounts to an abuse of Court process given the prior steps the Appellants had taken in the proceedings of the Court.
Learned counsel observed that the 1st, 2nd and 3rd Appellants in this suit were jointly sued over the same set of claims and they jointly engaged the same counsel to represent them. The said counsel entered a conditional appearance on behalf of all the Appellants and contended that the suit had become statute barred via a Notice of Preliminary Objection dated 26th of August, 2014 filed by the 1st Appellant, which was duly heard and subsequently dismissed by the trial Court. Also, on account of the said originating process served on the Appellants, the 1st Appellant filed a Statement of Defence on 26/08/2014, as contained at pages 37-50 of the Record of Appeal; while the 2nd and 3rd Appellants refused to file defence but participated in the proceedings throughout and even jointly filed a final written address at the conclusion of hearing as well as reply on points of law. The Court was urged to discountenance the argument of the Appellants on the question of service as same is not tenable. Counsel argued that the case of Estate of Late Chief H. I. S. Idisi v. Ecodril (supra), heavily relied upon by the Appellant does not apply to the instant appeal as the facts are not the same. Counsel further submitted, with the aid of Chief Abe & Anor v. U. B. N. Plc (2005) All FWLR (Pt. 291) 1727 at 1738 and Mmaduagwu & Anor v. Ifeanyi & Anor (2016) LPELR 41012 (CA), that technical justice is no justice and that where a party is made aware of proceedings then he cannot complain of lack of service. He urged the Court to resolve this issue in favour of the Respondent.
Arguments on Issue 2
Appellant’s counsel submited that the learned trial Judge erred in law when he held the Appellants liable to the Respondent in negligence, when from the evidence before the trial Court, the ingredients or elements of negligence were not established against the Appellants and the accident that caused injury to the Respondent was not caused by the Appellants. Relying on Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 AT pages 649-650; U.T.B. (Nig.) vs. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 AT 465; Orhue vs. NEPA (1998) 7 NWLR (Pt. 557) 187, he submitted that the law is settled that to succeed in an action in negligence, the Plaintiff has to establish three major elements, which must exist conterminously, to wit:-
(a) That the defendants owe him a duty of care;
(b) That there is a breach of that duty; and
(c) That an injury to the Plaintiff has occurred, between which and the breach of duty a causal connection must be established.
It was further submitted that success in an action in negligence is a matter of fact to be proved by evidence and not by mere hearsay and speculations, citing the case of F.A.A.N. vs. W.E.S. (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 AT 251, Kabo Air Ltd. vs. Mohammed (2015) 5 NWLR (Pt. 1451) 38 AT 65-66. Again, that for a claim in negligence to be sustained against the Appellants herein, it is not enough to show that the Respondent sustained an injury, but the injury must be tied to the action of the Appellants. Learned counsel also argued that for a Plaintiff to succeed, every allegation or claim of negligence must be particularized and specifically proved – Kabo Air Ltd vs. Mohammed (supra) AT 65-66, U.T.B Plc Vs. Ozoemena (supra), Dare vs. Fagbamila (2009) 14 NWLR (Pt. 1160) 177, Ojo vs. Gharoro (2006) 10 NWLR (Pt. 987) 173.
It was argued that the Respondent did not particularize in his Statement of Claim the alleged negligence committed by the Appellants against him as his story was full of hearsay, an issue which was raised in the final address of the 1st Appellant but was not considered by the trial Court. He posited on the authorities of Kakih vs. P.D.P. (2014) 15 NWLR (Pt. 1430) 374 AT 418-419; Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 AT 129, that hearsay evidence cannot be ascribed any probative value.
Appellants contended that the Respondent’s injury was not caused by the 1st Appellant but by a hose hired by the Charterers (Euroafric Oil and Coastal Services Limited) as testified to by DW1. He submitted that the accident occurred at the shore and not on board the Vessel and the only connection the Vessel had with the accident was that the Vessel berthed in the water at the jetty where the accident occurred, and nothing more.
It was further submitted for the Appellants that by virtue of the provisions of Sections 135 and 136 of the Evidence Act, 2011, the burden of proving the existence of any fact in issue is on the party who asserts it and therefore, the Respondent had the primary burden to establish the facts in support of his case before Judgment could have been entered in his favour, which is that the injury he sustained was caused by the Appellants and that the Appellants were negligent. He made reference to Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630 AT 649, A.M. Co (Nig.) Ltd vs. Volkswagen (Nig.) Ltd. (2010) 7 NWLR (Pt. 1192) 97 AT 118; U.T.B. (Nig.) vs. Ozoemena (supra) AT 465, Hilary Farm Ltd & Ors. vs. M/V Mahtra & Ors. (2007) 14 NWLR (Pt.1054) 210 at 236.
It was argued that the trial Court did not resolve the issue raised by the Appellants in their final written address as to whether the Respondent has established a claim of negligence against the Appellants. Rather, the learned trial Judge glossed over the issue and held at page 312 of the Record that negligence in the instant case was that of res ipsa loquitur, a finding which is erroneous and misconceived, as the Respondent never pleaded res ipsa loquitur in his Statement of Claim and also did not express any uncertainty as to the cause of his injury, which he said was a hose. Reference was made to the case of P.S.H.S.M.B. vs. Goshwe (2013) 2 NWLR (Pt. 1338) 383 AT 397, where the Supreme Court held that the doctrine of res ipsa loquitur is applicable when the facts stand unexplained and therefore the natural and reasonable, not conjectural inference from the facts shows that what had happened is reasonably to be attributed to some act of negligence, on the part of somebody. He cited Julius Berger (Nig.) Plc vs. Nwangwu (2006) 12 NWLR (Pt. 995) 518 at 540, where it was held that the doctrine of res ipsa loquitur is not applicable when the cause of the accident is known. Counsel drew the Court’s attention to the 1st Appellant’s defence when DW1 explained that the hose that injured the Respondent was not from her, but was obtained and used by Euroafric Oil and Coastal Services Limited to flush their pipes. He expressed surprise how the learned trial Judge arrived at his findings that proof in the case was that of res ipsa loquitur and that it was not discharged by the Appellants. It was contended that the position of the law has always been that Courts have powers only to the extent of the claims, facts and evidence presented before them by the parties and have no power to make a case for a party different from what the party has brought to the Court, relying on Union Bank of Nigeria Plc v. E. D. Emole (2001) 12 S.C. (Pt. 1) 106; (2001) LPELR-3392 (SC).
On the argument of decision of the lower Court that the Appellants, who alleged that the hose that cause injury to the Respondent does not belong to them, ought to have commenced third party proceedings against Euroafric Oil and Coastal Services Limited, the owner of the hose, learned counsel for the Appellants submitted that the Appellants could not have properly commenced third party proceedings against Euroafric Oil and Coastal Services Limited because the Appellants did not contend that they had any claim, remedy, relief, contribution or indemnity whatsoever against Euroafric Oil and Coastal Services Limited. He refered to the cases ofLabode vs. Otubu (2001) 7 NWLR (Pt. 712) 256 AT 290; NNPC v. Zaria & Anor (2014) LPELR-22362(CA), and urged the Court to resolve the second issue in favour of the Appellants. Arguing contrariwise, learned counsel for the Respondent maintained that the lower Court was justified in invoking the doctrine of res ipsa loquitur to find the Appellants negligent in relation to the incident of 04/07/2011 which resulted in the severe injuries inflicted on the Respondent.
He submitted on the authorities of Ibekendu vs. Ike (1993) LPELR – 1390 (SC) and Agip (Nig) Plc vs. Udom Ossai (2018) LPELR- 44712 (CA), that the doctrine of res ipsa loquitur and particulars of negligence need not be specifically pleaded. It was argued that the conditions for the application of the doctrine of res ipsa loquitur as enunciated in the same case of P. S. H. S. M. B. v. Goshwe (2013) 2 NWLR (pt. 1338) 383, cited by the Appellants, are abundantly present in the instant case through the evidence of PW1 and PW2 on how a hose from the 1st Appellant’s ship burst and shattered the Respondent’s right leg, causing him permanent disability. It was further argued that there is nothing hearsay about the evidence led by the Respondent, vide pages 7-9 and 10-13 of the Record, as both the Respondent himself and PW2 are eye witnesses to the bursting of the hose from the Vessel.
Learned counsel submitted further that the law is trite that where the doctrine of res ipsa loquitor is applicable, the burden of proof is on the defendant to establish by credible evidence that the injury and damages suffered by the complainant was not occasioned by the negligent act or omission of the defendant. In the instant case, according to the Respondent, the Appellants failed completely to discharge that burden of proof as the 2nd and 3rd Appellants who were the owners and/or managers of the 1st Appellant by virtue of having possession and control of the latter at the material time the accident occurred, did not even file any defence to dispute the Respondent’s averments as contained in the Statement of Claim or led any shred of evidence whatsoever in rebuttal of the evidence also led by the Respondent. He referred to the cases of EMODI V. EMODI (2015) 2 NWLR (PT. 1443) 201-410 (P. 344, PARAS. B-C); DONALD V. SALEH (2015) 2 NWLR (PT.1444) 411-624 (P.593-594, PARAS. G-A) and submitted that the refusal of the 2nd and 3rd Appellants to file a defence amounts to an admission of the Respondent’s claim.
In view of the evidence of DW1 at page 46 of the Record that the 1st Appellant was ‘duly equipped to undertake discharge of cargo’, the Appellants’ argument in their brief that the 1st Appellant did not have a hose with which cargo is dischargeable, is inconsistent with the evidence of DW1, which rendered the claim that the 1st Appellant did not have a hose not only as an afterthought but an unpleaded fact which goes to no issue and should be discountenanced – ISHENO vs. JULIUS BERGER (NIG. PLC. (2008) 6 NWLR (Pt. 1084) 582 AT 589; OLUYEDE vs. ACCESS BANK PLC (2015) 17 NWLR (Pt. 1489) 445 AT 608, TATU vs. THE ESTATE OF ALHAJI ADAMU (2015) 13 NWLR (Pt. 1476) 229. The Court was urged to resolve this issue in favour of the Respondent.
Arguments on Issue 3
The Appellants submitted on this issue that even if the 1st Appellant is found to be liable in negligence to the Respondent, such liability would not extend to the 2nd and 3rd Appellants because the 2nd and 3rd Appellants do not have any connection with the 1st Appellant, referring to Exhibit D2, the Certificate of Registration of the 1st Appellant with NIMASA which shows that the 1st Appellant was owned by Sea Pioneer Limited, the employer of DW1, a fact which was not rebutted or contradicted by the Respondent and should therefore be taken as correct. It was further submitted that assuming the 3rd Appellant was the Managing Director and the person running the Sea Pioneer Limited, which owns the 1st Appellant, that fact does not make the 3rd Appellant liable to the Respondent in the instant case as the 1st Appellant has distinct legal personality separate from even its promoters by virtue of section 37 of the Companies and Allied Matters Act (CAMA), Cap. C20 LFN, 2004 and the case of Salomon Vs. Salomon (1897) AC 22.
Learned counsel submitted, relying on the evidence of DW1 who was on the Vessel as Supercargo on the date of the incident, that the 2nd and 3rd Appellants had no interest whatsoever in the 1st Appellant, but that the 1st Appellant was owned and controlled by Sea Pioneer Limited, a company he worked with. He faulted the lower Court for ignoring the overwhelming evidence of ownership of the 1st Appellant by Sea Pioneer Limited (both oral and documentary), especially when there was no evidence to indicate that the 2nd and 3rd Appellants chartered the 1st Appellant at the relevant time.
In view of the uncontradicted evidence that the 2nd and 3rd Appellants do not own shares in the 1st Appellant at all and are not the owners of the 1st Appellant, the Court was urged to hold that the lower Court was wrong in entering Judgment against the 2nd and 3rd Appellants, who were not the owners and had no interest in the 1st Appellant Vessel, which allegedly caused injury to the Respondent.
Learned counsel observed that though the condition of the Respondent is pathetic and ordinarily attracts a lot of emotions, the trial Court ought not to have been carried away by the emotional hue of this case in entering Judgment in favour of the Respondent against the Appellants, even when there was no cogent evidence linking the Appellants with the injury sustained by the Respondent. Rather, the judgment delivered by the trial Court was borne out of sentiments because the learned trial Judge did not dispassionately consider the overall evidence before him in deciding the matter before him. Referring to the cases of Suleman vs. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298 AT 322-323 and Abubakar vs. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1, he submitted that the law is settled that sentiments and emotions do not have a place in judicial determinations because all the parties before the Court are entitled to justice. The Court was prevailed upon to hold that the 2nd and 3rd Appellants were not the beneficial owners of the 1st Appellant and to resolve this issue in favour of the Appellant.
On the part of the Respondent, counsel insisted that the decision of the lower Court that the 2nd and 3rd Appellants are the beneficial owners of the 1st Appellant is in line with the uncontroverted pleading and undisputed evidence before that Court. He referred to the pleading of the Respondent on how he was hired by the agents/crew of the Appellants to convey bottle water to the Waziri jetty where the 1st Appellant anchored, and how the said pleading was not controverted by the 2nd and 3rd Appellants who did not file a defence to the action. It was submitted that both in their written statements on oath and under cross-examination, PW1 and PW2 maintained that throughout the period the Respondent dealt with the Appellants, the crew members of the 1st Appellant ship had always adorned identification cards of the 2nd Appellant and also that the 3rd Appellant was always on ground at the said jetty on inspection of the 1st Appellant whenever the latter was berthed there, without rebuttal evidence. The cases of OKENE vs. ORIANWO (1988) 9 NWLR (Pt.566) 408; MORENIKEJI V. ADEGBOSIN (2003) 8 NWLR (Pt. 823) 612; IKPANG vs. EDOHO (1978) ALL NLR 196, were cited to support the legal proposition that uncontroverted averment contained in a pleading is deemed admitted and needs no further proof. The Respondent urged the Court to note the settled position of the law that where no defence has been filed to a plaintiff’s claim, the defendant will be deemed to have admitted the claim or relief in the statement of claim and the trial Court’s only alternative in the circumstance is to give judgment for the plaintiff, citing the cases of EMODI vs. EMODI (2015) 2 NWLR (Pt. 1443) 201-410 AT 344; DONALD vs. SALEH (2015) 2 NWLR (Pt.1444) 411-624 AT 593-594.
Respondent also contended in line with Section 2 (3) (d) of the Admiralty Jurisdiction Act, 1991 that one need not be the registered owner of a ship or have a share interest in a ship before he can be sued for wrongful acts of the ship as maritime claims for personal injury are maintainable not only against the registered owner or charterer of a ship but also against persons in possession of the ship. He submitted that the 2nd and 3rd Appellants were not only in possession of the 1st Appellant, the wearing of the Identification Card of the 2nd Appellant company by the crew members on board the 1st Appellant ship and the regular inspection of the latter by the 3rd Appellant during the period the Appellants transacted with the Respondent as contained in the Respondent’s uncontroverted averments and testimonies all go to show that the 2nd and 3rd Appellants were also in control of the 1st Appellant. Reliance was placed on THE M.V. “S. ARAZ” vs. SCHEEP (1996) 5 NWLR (Pt.447) 128-254 AT 220; ALLIED TRADING CO. LTD. vs. G.B.N LINE (1985) 2 NWLR (Pt.5) 74 AT 81-82. He urged the Court to resolve this issue in favour of the Respondent.
Arguments on Issue 4
This issue challenges the quantum of damages awarded to the Respondent. The Appellants submited that even if they were liable in negligence to the Respondent as held by the honourable Court, the award of a whooping sum of N100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants by the trial Court, in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent at a reputable hospital together with the publication of apology to the Respondent in three national dailies, was most perverse, unwarranted and unjustified. He urged that this is a good instance where this Court should interfere with the award, otherwise, the Appellants would be made to suffer gross injustice as a result of the wrong exercise of the trial Court’s discretion in making the award of general damages, citing United Bank Plc V. BTL Industries Limited (2004) 18 NWLR (pt. 904) 108 at 236 -237; British Airways vs. Atoyebi (2014) 13 NWLR Part 1424, 253 AT 287-288; Spring Bank Plc. vs. Dokkin Ventures Nigeria Limited (2012) LPELR – 7983 (CA), where the Court listed the instances in which the appellate Court will interfere with the award of general damages. Counsel for the Appellants insisted that in the instant case, the exercise of the discretion of the trial Court in awarding a whooping sum of N100,000,000.00 (One Hundred Million Naira) as general damages against the Appellants in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent was most perverse, unwarranted, unjustified and an outright disregard of legal principles. It was further argued that the totality of the evidence before the trial Court was not enough to have suggested that the probable loss suffered by the Appellant as a result of the accident would amount to a whooping sum of N100,000,000.00 (One Hundred Million Naira). Counsel submitted that the lower Court took into consideration irrelevant matters in the award of damages as a reading of the judgment would reveal that the learned trial Judge resorted to applying sentiments in making the award against laid down principles of law, hence the amount awarded was ridiculously high.
This Court was called upon to resolve the fourth issue in favour of the Appellants and intervene by setting aside the award of the sum of N100,000,000.00 (Hundred Million Naira) as general damages in favour of the Respondent in order to prevent injustice to the Appellants.
Finally, the Court was urged to set aside the judgment of the Federal High Court, Lagos Division, in Suit No: FHC/L/CS/1612/2013 delivered on 07/07/2017 for being grossly perverse, erroneous, unjustifiable and outrageous.
On behalf of the Respondent, it was submitted on this 4th issue that the Appellants have not shown sufficient reasons to warrant interference with the aforesaid award made by the learned trial judge, and that contrary to the Appellants’ arguments in paragraphs 7.1-7.6 of the Appellants’ Brief, the damages awarded against the Appellants is warranted, justified and not perverse or erroneous given the peculiar circumstances of this case which is distinguishable from the facts in British Airways v. Atoyebi (2014) 13 NWLR (Pt.1424), cited by Appellants in support of their argument on this issue. Learned counsel highlighted the distinguishing features of the two cases at paragraphs 7.3-7.6 of the Respondent’s Brief and argued strongly that the Respondent deserve every kobo of the damages awarded him to assuage his pain, suffering and psychological torture; and that the call by the Appellants on this Court to set aside the said award speaks volume of the Appellants’ insensitivity to the Respondent’s plight. He prayed the Court to resolve this issue in favour of the Respondent and uphold the findings of the lower Court in that regard. On the whole, the Court was urged to dismiss the appeal and affirm the judgment of the lower Court.
Appellants’ reply to some of the new issues raised by the Respondent would be addressed, where necessary, in the course of the resolution of issues in the appeal.
Resolution of Issue 1
It has been a settled issue that service of originating processes on a Defendant is a fundamental condition precedent to the Court’s exercise of its jurisdiction to hear and determine any case. Service of originating process is very crucial to the competence and indeed the jurisdiction of the Court because it is the foundation of the structure of litigation. It is a constitutional issue bordering on the principle of fair hearing. Where an originating process is not served on a Defendant or a Respondent in an appeal, the Court proceedings, including any judgment or decision resulting from such proceedings is rendered a nullity. See Ihedioha & Anor vs. Okorocha & Ors (2015) LPELR-40837 (SC) AT 69-70; Adegbola vs. Osiyi & Ors (2017) LPELR-42471 (SC) AT 18-19; Idisi vs. Ecodril (Nig) Ltd & Ors (2016) LPELR-40438 (SC) AT 23-25; Fidelity Bank Plc vs. MT Tabora & Ors (2018) LPELR-44504 (SC).
The essence of service of Court process is to adequately notify the person served or the defendant of the existence of the suit or claim against him to enable him defend same should he desire so to do. See Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR-2505 (SC).
The fundamental nature of service of Court process on parties is such that absence of it robes the Court of any jurisdiction that it would otherwise have had, because it is a condition precedent to the exercise of jurisdiction by Court. Authorities are legion on the point, that service of Court process on the opposing party is crucial and fundamental as it is the service of the process that gives the Court the jurisdiction and the competence to entertain and make pronouncement on such Court process. Without service, the jurisdiction of the Court cannot be activated with respect to such process. Failure to serve process where service of the said is required is a failure which goes to the root of the adjudication process. The prominent exception to this rule is ex-parte application, where the opposing party is not expected to be put on notice. It is settled law that in proceedings where service of process is required, failure to serve process on the other party or parties is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 (SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). In the case of Eimskip Ltd vs. Exquisite Industries (Nig) Ltd (2003) LPELR-1058 (SC), Niki Tobi, JSC, had this to say on the effect of non-service of Court process:
“Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will assume and rightly too for that matter, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. In the often cited case of Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6, Nnnamani, JSC., relying on the English decision of Craig v. Kanseen (1943) 1 QB 256, held that failure to serve Court process goes to the issue of competence and jurisdiction of the Court and in such a case, the proceedings are a nullity and any orders made would also be nullities. In Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548, the Supreme Court referred to its earlier decision in Skenconsult and held that it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conception of the proper procedure in litigation.”
It has equally been held by the apex Court, times without number, that non-service of Court process on a party, where service is required, amounts to breach of the party’s right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC), Ihedioha vs. Okorocha (supra), Achuzia vs. Ogbomah (2016) LPELR-40050 (SC); Okeke vs. Lawal & Ors (2018) LPELR-43920. In the recent case of Michael K. Aondoakaa, SAN vs. Emmanuel Bassey Obot (2021) LPELR-56605 (SC) AT 14-15, the Supreme Court, speaking through Kekere-Ekun, JSC, reiterated the trite principle in the following words:
“It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit. Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity. See Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 AT 26; Mgbenwelu vs Olumba (2016) LPELR-42811 (SC) AT 36-37 E -D.”
In the instant case on appeal, the Appellants claimed that the 1st Appellant was not served personally with the originating process in respect of this suit, while the 2nd and 3rd Appellants were not served at all. It was contended that by the nature of the suit before the lower Court, the 1st Appellant, which is a Vessel, ought to have been served in compliance with the provision of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011; the 2nd Appellant, a limited liability company, ought to have been served in compliance with the provision of Section 78 of the Companies and Allied Matters Act, 2004 and Order 6, Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009; while the 3rd Appellant, who is an individual, ought to have been served personally in compliance with the provision of Order 6, Rule 2 of the Federal High Court (Civil Procedure) Rules, 2009. It was submitted that in view of the fact that the suit before the trial Court was an action in rem and the 1st Appellant was a Vessel, the Writ of Summons ought to be served on the Vessel or on the master of the Vessel.
From the affidavit of service of the originating process domiciled at page 90 of the Record deposed to by one Efik Dennis, a Bailiff of the Federal High Court dated 29/04/2014, all the Appellants, then as Defendants, were served with the Writ of Summons and Statement of Claim through one Abubakar Mohammed, the Assistant General Manager, at 31B Marina Road, Apapa, Lagos, on 28/04/2014. The endorsement of the said Abubakar Mohammed is at page 91 of the Record. This is the only evidence of service of the originating process on the Appellants. Interestingly, the address for service on all the Appellants was given as 31B, Marina Road, Apapa, Lagos. No issue was made of that address. None of the Appellants denied the said address.
My noble lords, from the affidavit of service at pages 90-91 of the Record, it can superficially be said that there is no proof that the 1st and 3rd Appellants were properly served with the originating process as required by law. Being a Vessel, service of Writ of Summons in an action in rem on the 1st Appellant, by virtue of Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011, is to be done by affixing a sealed copy of the Writ to a mast or some other conspicuous part of the ship or by delivering same to the master of the ship. Neither of the stated method of service was employed by the Respondent in this appeal. There is no evidence in the printed Record to show that Abubakar Mohammed, the Assistant General Manager, who was served at 31B, Marina Road, Apapa, was the master of the 1st Appellant. There is also no evidence on the Record, not even a claim by the Respondent, that the service was carried out by affixing the process on the 1st Appellant. On this score, I hold that the service of the originating process on the 1st Appellant was not made in accordance with the law and is therefore irregular.
With respect to the 3rd Appellant, the Statement of Claim described him at paragraph 4 as the Managing Director of the 1st Appellant. By the Rules of the Federal High Court, service of originating process on him ought to be personal, unless ordered otherwise by the Court. No such order was made by the lower Court and the 3rd Appellant was not personally served with the process in question. Service of the originating process on the 3rd Appellant, through Abubakar Mohammed, the Assistant General Manager, did not accord with the requirement of the Rules governing personal service of originating process. Just like the service on the 1st Appellant, the service of the Writ of Summons on the 3rd Appellant is also irregular.
The 2nd Appellant is an incorporated company and the mode of service on companies are provided for in Section 78 of the Companies and Allied Matters Act (CAMA) as well as Order 6 Rule 8 of the Rules of the Federal High Court. One of the recognized modes of service of Court process on incorporated entities is by serving the process on a Principal Officer of a Company. By all standard, an Assistant General Manager of a Company qualifies as a Principal Officer of such Company and therefore service of Court process on him qualifies as proper service under the provisions of the relevant enactment and Rules of Court just referred to, i.e., the CAMA and the Federal High Court Rules.
Now, the question is, as between the 1st and 2nd Appellant, who was Abubakar Mohammed serving as an Assistant General Manager? This question becomes germane when viewed against the fact that; (1) the address of all the Appellants is 31B, Marina Road, Apapa, Lagos; (2) Abubakar Mohammed signed for and collected the process on behalf of all the Appellants. If he was AGM for the 1st Appellant, the service is irregular, but regular if he was AGM for the 2nd Appellant. However, there is nothing on the printed Record, particularly in the affidavit of service and the endorsement thereon at pages 90 & 91 of the Record, to show that Abubakar Mohammed was AGM for the 2nd Appellant. This Court cannot speculate as to who he was serving as between the 1st and 2nd Appellants, in the absence of material proof in that direction. Consequently, one can say without equivocation that the purported service of the originating process on the 2nd Appellant through one Abubakar Mohammed is irregular in law. On the whole, based on my findings above, it is clear that the service of the originating process on all the Appellants is tainted with the toga of irregularity.
The natural thing for me to do, having found that the service of the originating process on the Appellants did not comply with the requirements of the law as analyzed supra, is to set aside the said service and declare the proceedings and judgment of the lower Court a nullity. But there is more to that. On taking a detour of the Record of Appeal, I found at pages 34-36 thereof, that all the three Appellants have entered conditional appearance on 26/08/2014. How all of them became aware of the action is not decipherable from the conditional appearance. That same date, the 1st Appellant filed a Statement of Defence with all the accompanying documents together with Notice of Preliminary objection on the ground that the action was statute barred. See pages 51-61 of the Record. The preliminary objection of the 1st Appellant was heard and dismissed by the lower Court on 19/03/2015. Over a month thereafter, precisely on 27/04/2015, all the 3 Appellants filed a motion on notice seeking the dismissal or striking out of the suit on account of non-service of the originating process on them.
Among the Applicants in the motion is the 1st Appellant, who had not only filed a Statement of Defence to the suit, but also took further steps by filing application challenging the competence of the suit on account of statute of limitation, which was heard and dismissed. Again, the lower Court, at pages 106-108 of the Record, dismissed the motion holding same to be an abuse of Court process. The 1st Appellant, in taking further steps in the proceeding, by filing an application to challenge the competence of the suit on ground other than want of proper service of the originating process, is deemed to have waived any irregularity that attended the service of the originating process on it. The law is trite that a party who intends to contest service of originating process is obliged to do so at the commencement of the suit before taking steps in the proceedings, and where he fails to do so but decide to participate in the proceedings, he cannot be heard to question the said service thereafter. A party is deemed to have waived his right to challenge the propriety of service of originating process if he takes further steps and allows the proceedings to go on as if the right or priviledge never existed. See Ariori vs. Elemo (1983) SCNLR 1. The 1st Appellant is estopped by operation of law from raising the issue of service having waived and forfeited it at the lower Court. A defendant will be held to have waived irregularity of service if he has taken a step such as entering appearance, filing defence and taking part in the proceedings. See Odu’a Investment Company Ltd vs. Talabi (1997) LPELR-2232(SC). This is exactly what the 1st Appellant in this appeal has done. That is not all, in an affidavit filed in support of the 1st Appellant’s motion for extension of time to file its Statement of Defence sworn to by one Dennis Ogar on 19/02/2016 at pages 145-146 of the Record, the deponent alluded to the fact that the 1st Appellant was served with the originating process of the lower Court in the case now on appeal, when he stated at paragraph 3 of the affidavit thus:
“I know that on 28th April, 2014, the Plaintiff/respondent served the 1st Defendant/Applicant with his Writ of Summons dated 20th November, 2013, Statement of Claim dated 19th November, 2013 together with the other accompanying process.”
This deposition, made on the authority of the 1st Appellant and her counsel, has swept the carpet off the feet of the 1st Appellant and exposed the futility of her attempt to deny service of the originating process. The deposition is an admission against interest and the 1st Appellant must cope and stand with it.
While all these was going on, the 2nd and 3rd Appellants never filed a defence to the Respondent’s claim, even though the same counsel representing the 1st Appellant was the same counsel who filed a joint memorandum of conditional appearance for all the Appellants. Interestingly, at the conclusion of trial, all the three Appellants filed an address titled: “DEFENDANTS’ FINAL ADDRESS” dated 10/03/2017, which occupies pages 216-232 of the Record, settled by Sylva Ogwemoh, SAN, FCIArb, (U.K.), Wahab Dako, Esq and Chibueze Muobuikwu, Esq as “Defendants’ Solicitors” but signed by Wahab Dako, Esq. Please note the position of the apostrophe on the word “Defendants”. There is also a joint Reply filed on behalf of all the Appellants at pages 263-268 of the Record titled: “DEFENDANTS’ REPLY ON POINTS OF LAW TO THE PLAINTIFF’S WRITTEN ADDRESS” signed by their lead counsel, Sylva Ogwemoh, SAN, FCIArb, (U.K.) as Solicitor for all the Defendants. All these goes to show clearly that even though the 2nd and 3rd Appellants failed to file a defence to the suit, they still proceeded to file joint final address, signifying their participation in the proceedings from the beginning to the end, starting with the filing of memorandum of conditional appearance and ending with a final address. These set of Appellants are, by their action, also caught by the doctrine of waiver. With their active participation in the proceedings leading to the judgment against them, the 2nd and 3rd Appellants cannot now complain of lack of service of originating process. Issue 1 therefore stands resolved against the Appellants and in favour of the Respondent.
Resolution of Issue 2
The main contentions of the Appellants under this issue are:
i. The ingredients or elements of negligence were not established against the Appellants.
ii. The accident that caused injury to the Respondent was not caused by the Appellants but by a hose belonging Euroafric Oil and Coastal Services Limited.
iii. The evidence led by the Respondent is based on hearsay and speculations.
iv. Respondent has not proved that the injury he sustained was caused by the Appellants.
v. Respondent ought to plead the particulars of negligence on the part of the Appellant for him to succeed, which he failed to.
vi. Res ipsa loquitr, relied upon by the lower Court to find the Appellants negligent, is not applicable when the cause of the accident is known.
Black’s Law Dictionary, 8th Edition, defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. It is a careless behaviour, lacking proper care and attention. Going down memory lane in the development of the common law tort of negligence, Muhammad, JSC, (now CJN), in the case of Okwejiminor vs. Gbakeji & Anor (2008) LPELR-2537 AT 50-51, said:
“Alderson B, in the old case of Blyth v. Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784, defined negligence as follows: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Seventy-eight years thereafter, Lord Wright had this to say in defining negligence: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” See the case of Lochgelly Iron and Coal Co. v. M’mullan (1934) A.C. 1 at P. 25. The latter definition spells out for us the three basic components of the torts of negligence: [a] duty of care [b] breach of the duty of care [c] damage caused by the breach.”
See also Rabiu Hamza vs. Peter Kure (2010) LPELR-1351.
The breakdown from the above passage is that negligence is the breach of legal duty of care owed by the Defendant, which results in damage or injury to the Plaintiff. Therefore, the ingredients of the tort of negligence are (a) a legal duty owed to the Plaintiff by the Defendant to exercise care within the scope of his duty; (b) the breach of the said duty; and (c) the consequential damage or injury caused to the Plaintiff. For a Plaintiff to succeed in a claim founded on negligence, these three ingredients must be proved on preponderance of evidence.
The most important of the ingredients is the prove of duty of care. How does a duty of care arise? It arises where there is sufficient proximity between the Plaintiff and the Defendant such that the Defendant ought to have the Plaintiff in contemplation in the act complained of. In determining the proximity that would create legal duty, Lord Atkins developed the formular in the case of Donoghue vs. Stevenson (1932) AC 562, in his now famous dictum, as follows:
“The rule that you are to love your neighbor, becomes, in law, you must not injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
The duty of care is said to exist where there is sufficient relationship of proximity as between the Defendant and the Plaintiff who suffered the damage or injury, such that a reasonable man can conclude that carelessness on the part of the Defendant likely caused the damage. Still on how to establish the duty of care, Pats-Acholonu, JSC, observed as follows:
“I believe that in the course of clearly understanding the nature of the duty of care in the tort of negligence, the lucid restatement of the law by Lord Willberforce in Ann v. Merton London Borough Council (1978) AC 728 is worthy of mention. In that case he said; “Through the trilogy in this house in Donoghue v. Stevenson (1932) A.C. 562, Hedley Byrne v. Hellen (1964) A.C. 465, Dorset Yacht Club v. Home Office (1976) A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. First, one has to ask as between the alleged wrong doer and the person who has suffered damage if there is a relationship of proximity or neigbourhood that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the later in which case a prima facie duty of care arises.”
In the instant case on appeal, the case of the Respondent is that he was, on 4th July, 2011, hired by the 2nd and 3rd Appellants through their agents/crew members of the 1st Appellant, who were wearing the ID card of the 2nd Appellant, to convey C-Way bottle water from Ajori market to Waziri Jetty, Apapa, Lagos, where the 1st Appellant anchored. He conveyed the crew members and their goods to the Jetty. The 1st Appellant was then discharging fuel through a hose. As he was moving the bottle water close to the 1st Appellant on the request of the crew members for his assistance, an explosion occurred caused by the breakage of 1st Appellant’s hose, which hit and severely injured him. Instead of rendering help to him the crew members on board the 1st Appellant only threw down a stretcher to help move him away from the scene of the accident, and the 1st Appellant hurriedly sailed out of the Jetty to avoid arrest, leaving the Respondent in pains and in the pool of his blood. None of the crew members/agents of the Appellants who hired the Respondent to carry bottle water to the Waziri Jetty and help them move the water near the 1st Appellant, was called to testify with a view to denying that the Respondent was on the Jetty and near the 1st Appellant on their invitation. The cross-examination of the Respondent as PW1 and his other witness as PW2 by the Appellant’s counsel did not alter or contradict their material evidence-in-chief. By the doctrine of foreseeability and proximity, the 1st Appellant, under the ownership and/or control of the 2nd Appellant, whose Managing Director is the 3rd Appellant, owed a duty of care in the course of discharging her cargo, to ensure that other users of the Waziri Jetty are not harmed by her operation. There is no doubt that as someone who conveys the members of the crew of the 1st Appellant to the Waziri Jetty, where the 1st Appellant anchored, and assisted them in moving the bottle water near the 1st Appellant, the Respondent is owed a duty of care by the 1st Appellant in the course of her operation at the Jetty. It is the duty of the 1st Appellant to ensure that safety standards are maintained in all facets of her operation at all times. The bursting or breaking of the hose used in discharging the cargo is evidence of negligence on the part of the 1st Appellant to ensure high safety standards in/during the use of her facilities.
Appellants argued that they were not responsible for the Respondent’s injury which was caused by the bursting of the hose as the hose in question does not belong to the 1st Appellant but to a company called Euroafric Oil and Coastal Services Limited. This argument is unconvincing. The hose that broke or burst and injured the Respondent was affixed to the 1st Appellant and it is the channel by which the 1st Appellant discharges her cargo. In the circumstance of this case, who owns the hose or how the hose was procured is immaterial as long as it was affixed to the 1st Appellant in the course of 1st Appellant’s operation. That is the only thing the Respondent knows and the Appellants have not denied that the hose was used in discharging the cargo of the 1st Appellant.
The Appellants also contended that the Respondent’s evidence was based on hearsay and speculation. I have consulted the Record to see if the contention of the Appellants can be sustained. I read at pages 10-13 the statement on oath of PW1 which he adopted as his evidence-in-chief together with answers provided by him to questions under cross-examination at pages 25-27 of the Additional Record. I also read the evidence of PW2 at pages 7-9 of the Main Record and 30-34 of the Additional Record. I did this with a view to finding the hearsay and speculative evidence talked about by the Appellants. This is my findings: Every event testified to by PW1 from the point he was hired by the crew members to convey them and C-Way bottle water to the Waziri Jetty to the time the hose from the 1st Appellant burst and hit him thereby causing him severe injury is not hearsay but from his personal knowledge. Ditto for the evidence of PW2 who was at the Jetty and an eye witness to all the happenings at the time. I fail to see anything hearsay or speculative in all the material evidence led by the Respondent concerning how he got the Jetty and the severe damage he suffered following the bursting of the hose from the 1st Appellant. What may appear speculative is the fact that the Respondent concluded that the 1st Appellant was under the ownership or control of the 2nd and 3rd Respondent because the crew members who hired him were wearing the ID card of the 2nd Respondent. Another aspect of speculation may be the evidence of PW2 who said that he has been operating at the Jetty as a commercial driver for 15 years and that he used to see the 3rd Appellant coming to inspect the 1st Appellant whenever the latter berthed at the Waziri Jetty. The 2nd and 3rd Appellants who the Respondents alleged to be in control of the 1st Appellant at the material time of the incident, apart from entering conditional appearance did not contest the pleading of the Respondent by filing a Statement of Defence. Therefore, the pleading and evidence of the Respondent concerning the ownership/control of the 1st Appellant by the 2nd and 3rd Appellants is, in law, deemed admitted by them, and facts admitted need no further proof as no issue is joined. See Egesimba vs. Onuzuruike (2002) LPELR-1043(SC), Akahall & S0ns Ltd vs. NDIC (2017) LPELR-41984 (SC), FUT Minna vs. Olutayo (2017) LPELR-43827 (SC). This is based on the principle that, where a Defendant disputes the Plaintiff’s claim, he must file a Statement of Defence to contradict, controvert, challenge or deny the claim and lead evidence thereon at the trial. See Oyekan II & Ors vs. Rossek (2009) LPELR-11906 (CA); Emodi & Ors vs. Emodi & Ors (2013) LPELR-21221 (CA). The law is also settled that in a case where the Defendant files no defence, the standard of proof cast on the Plaintiff is a minimal one. See Chami vs. U.B.A. Plc (2010) SCNJ 23 AT 39-40. Having not filed a defence, the 2nd and 3rd Appellants are estopped from leading evidence to show that they neither owned nor are they in control of the 1st Defendant at the time of the injury/damage to the Respondent. This is founded on the principle that evidence led on facts not pleaded goes to no issue and should be disregarded by the Court. See Okonkwo vs. CCB Nigeria Plc (2003) LPELR-2484 (SC); Okoko vs. Dakolo (2006) LPELR-2461 (SC). In this regard, the evidence of DW1 that the 1st Appellant was not owned or controlled by the 2nd and 3rd Appellants cannot avail them as they failed to join issues with the Respondent on that fact.
Throughout his testimony, DW1, who claimed to be on board the 1st Appellant at the material time of the incident, did not dispute the fact that the Respondent was injured following the bursting of the hose used by the 1st Appellant to discharge kerosine at the Waziri Jetty. He only stated that the Respondent was not contracted by the 1st Appellant to supply any water and that he was on the Jetty uninvited. To this, I say that the duty of care under the law of tort is based on foreseeability and proximity and not on any contractual relationship between the Plaintiff and the Defendant as discussed earlier in this Judgment.
Appellants also attacked the judgment of the lower Court on the invocation of the maxim of res ipsa loquitur, which the Appellants contended is not applicable in this case, as the cause of the accident is known. Further that the Respondent did not plead the maxim in his Statement of Claim.
The maxim res ipsa loquitur literally means “the thing speaks for itself”. It is applicable to actions for injury where no proof of such negligence is required beyond the accident itself which is such as necessarily involves negligence. Res ipsa loquitur is a doctrine relied on by a Plaintiff to prove the negligence of a Defendant. It applies in a situation where the facts of a case are such that the negligence complained of would not have occurred if the Defendant had taken due care. The Court, in the circumstance, is entitled to draw inference from those facts unless the Defendant adduces evidence in rebuttal of such inference. It operates to shift the burden on the Defendant to explain and show that the accident occurred without any fault on his part. Consequently, where the facts constituting negligence are known and specifically pleaded with particulars or where the Defendant offers a satisfactory explanation, the doctrine will no longer apply. See Ibekendu vs. Ike (1993) LPELR-1390 (SC); The Shell Petroleum Dev. Co. of Nig. Ltd vs. Anaro & Ors (2015) LPELR-24750 (SC); P. S. H. S. M. B. vs. Goshwe (2012) LPELR-9830 (SC); Chudi Verdical Co. Ltd vs. Ifesinachi Industries Nig. Ltd (2018) LPELR-44701 (SC).
There is a misconception in the submission of learned counsel for the Appellants with respect to causation of the accident in relation to the application of the doctrine of res ipsa loquitur. It is not the law that for the doctrine to apply, the cause of the injury or damage must not be known. Rather, the law is that the cause of the accident leading to the injury to the Plaintiff must not be known for proper application of the doctrine. The emphasis is on the cause of the accident not the resultant injury or damage. Where the cause of the accident is known, the maxim will not apply. It should be made clear here that the cause of the injury to the Plaintiff and the cause of the accident are not the same. One leads to the other, that is to say, the accident leads to the injury. It is the cause of the accident that must not be known for the application of the doctrine, not the cause of the injury, because, invariably, it is the accident that causes the injury. In the case at hand, the cause of the injury to the Respondent is the hose that burst from the 1st Appellant and hit him. What caused the hose to burst and hit him is not known to him and that is why he did not plead it, hence the application of the doctrine. It is the responsibility of the Appellants to explain what caused the accident which led to the injury to the Respondent, as the burden of proof has now shifted to them through the application of the doctrine of res ipsa loquitur. In the case of Air France vs. Akpan (2015) LPELR-24648 (CA), the Respondent was hit by an object while sleeping on her seat inside the Appellant’s aircraft and she fainted. The cause of the injury to her is the object, but how and why the object hit her was not known to her. The Court held that res ipsa loquitur applies. In such a case, the burden will shift to the Defendant to explain what happened and show that there was no negligence on his part. Where it fails, the law presumes negligence and damages will follow. In the case of Ojo vs. Gharoro & Ors (2006) LPELR-2383 (SC) AT 54-55, Oguntade JSC, captured the essence and application of the doctrine of res ipsa loquitur in a simple and lucid language as follows:
“The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply. Barkway v. South Wales Transport (1950) 1 All E.R. 392. Reliance on the doctrine of ‘res ipsa’ is thus a confession by the Plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence. In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the Court to infer therefrom negligence on the part of the defendant.” (Underlining supplied for emphasis).
One last thing about the doctrine of res ipsa loquitur that is deserving of mention is that the doctrine doesn’t have to be specifically pleaded. It suffices if the facts pleaded allude to the reliance on the doctrine by the Plaintiff. In the instant case, the Respondent pleaded that as he was moving bottle water near the 1st Appellant on the request of the crew members, he had an explosion and was hit by a broken or bust hose from the 1st Appellant, causing him severe injury. He subsequently fainted. In his claim before the lower Court, he imputed negligence on the part of the Appellants as he does not know what caused the explosion and the bursting of the hose. Res ipsa loquitur can be inferred from this set of facts as pleaded by the Respondent, and the lower Court, in my view, rightly did so. In the final analysis, I resolve issue 2 against the Appellant.
Resolution of Issue 3
Learned counsel for the Appellants submitted on this issue that even if the 1st Appellant is found to be liable in negligence to the Respondent, such liability would not extend to the 2nd and 3rd Appellants because the 2nd and 3rd Appellants do not have any connection with the 1st Appellant, referring to Exhibit D2, the Certificate of Registration of the 1st Appellant with NIMASA which shows that the 1st Appellant was owned by Sea Pioneer Limited, the employer of DW1. In the course of resolving issue 1, I held at pages 27-28 of this judgment, thus:
“…the 2nd and 3rd Appellants never filed a defence to the Respondent’s claim, even though the same counsel representing the 1st Appellant was the same counsel who filed a joint memorandum of conditional appearance for all the Appellants. Interestingly, at the conclusion of trial, all the three Appellants filed an address titled: “DEFENDANTS’ FINAL ADDRESS” dated 10/03/2017, which occupies pages 216-232 of the Record, settled by Sylva Ogwemoh, SAN, FCIArb, (U.K.), Wahab Dako, Esq., and Chibueze Muobuikwu, Esq., as “Defendants’ Solicitors” but signed by Wahab Dako, Esq. Please note the position of the apostrophe on the word “Defendants”. There is also a joint reply filed on behalf of all the Appellants at pages 263-268 of the Record titled: “DEFENDANTS’ REPLY ON POINTS OF LAW TO THE PLAINTIFF’S WRITTEN ADDRESS” signed by their lead counsel, Sylva Ogwemoh, SAN, FCIArb, (U.K.) as Solicitor for all the Defendants. All these goes to show clearly that even though the 2nd and 3rd Appellants failed to file a defence to the suit, they still proceeded to file joint final address, signifying their participation in the proceedings from the beginning to the end, starting with the filing of memorandum of conditional appearance and ending with a final address. These set of Appellants are, by their action, also caught by the doctrine of waiver. With their active participation in the proceedings leading to the judgment against them, the 2nd and 3rd Appellants cannot now complain of lack of service of originating process. Issue 1 therefore stands resolved against the Appellants and in favour of the Respondent.” (Underlining for emphasis).
Apart from resolving the issue of service of the originating process on the 2nd and 3rd Appellants and the consequence of their participation in the proceedings, including filing of final address, under issue 1, I also resolved the issue of the liability of the 2nd and 3rd Appellants in the course of resolving issue 2, at pages 33-34 supra, as follows:
“The 2nd and 3rd Appellants who the Respondents alleged to be in control of the 1st Appellant at the material time of the incident, apart from entering conditional appearance did not contest the pleading of the Respondent by filing a Statement of Defence. Therefore, the pleading and evidence of the Respondent concerning the ownership/control of the 1st Appellant by the 2nd and 3rd Appellants is, in law, deemed admitted by them, and facts admitted need no further proof as no issue is joined. See Egesimba vs. Onuzuruike (2002) LPELR-1043(SC); Akahall & Sons Ltd vs. NDIC (2017) LPELR-41984 (SC); FUT Minna vs. Olutayo (2017) LPELR-43827 (SC). This is based on the principle that, where a Defendant disputes the Plaintiff’s claim, he must file a Statement of Defence to contradict, controvert, challenge or deny the claim and lead evidence thereon at the trial. See Oyekan II & Ors vs. Rossek (2009) LPELR-11906 (CA); Emodi & Ors vs. Emodi & Ors (2013) LPELR-21221 (CA). The law is also settled that in a case where the Defendant files no defence, the standard of proof cast on the Plaintiff is a minimal one. See Chami vs. U.B.A. Plc (2010) SCNJ 23 @ 39-40. Having not filed a defence, the 2nd and 3rd Appellants are estopped from leading evidence to show that they neither owned nor are they in control of the 1st Defendant at the time of the injury/damage to the Respondent. This is founded on the principle that evidence led on facts not pleaded goes to no issue and should be disregarded by the Court. See Okonkwo vs. CCB Nigeria Plc (2003) LPELR-2484 (SC); Okoko vs. Dakolo (2006) LPELR-2461 (SC). In this regard, the evidence of DW1 that the 1st Appellant was not owned or controlled by the 2nd and 3rd Appellants cannot avail them as they failed to join issues with the Respondent on that fact.” (Underlining, mine).
The corollary of the two findings above is that the 2nd and 3rd Appellants, having not contested the case put forward by the Respondent, are jointly, with the 1st Appellant, liable to the Respondent in negligence. Accordingly, I resolve issue 3 against the Appellants and in favour of the Respondent.
Resolution of Issue 4
Under this issue, the Appellants questions the propriety of the award of One Hundred Million Naira (N100,000,000:00) as damages to the Respondent against the Appellant. The Appellants argued that the award is perverse, unwarranted, unjustified and ridiculous.
Damages is a pecuniary compensation granted to a successful party in an action for a wrong which is either of tort or a breach of contract.
General damages is defined as the kind of damages which the law pe toresum flow from the wrong complained of by the victim. It covers all losses which are not capable of exact quantification, including non-financial losses.
The purpose of damages is to compensate the Claimant for damage, injury or loss suffered by him. The guiding principle is restitutio in intergrum – Anambra State Environmental Sanitation Authority & Anor vs. Ekwenem (2009) LPELR-482 (SC). The measure or quantum of general damages is a matter that is at the discretion of a Judge taking into account the type of wrong committed or injury suffered. In ELF Petroleum vs. Umah & Ors (2018) LPELR-43000 (SC) Ogunbiyi JSC restated the law as follows: “It is pertinent to re-iterate herein that in the award of general damages a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the Appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the Defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred…. Unlike special damages, it is generally incapable of exact calculation.” Generally, in civil claims, general damages are awarded to assuage for the injury, loss or inconvenience or both, suffered by the victim against the person(s) found to be at fault. General damages need not be pleaded or proved and it is awarded in a deserving case as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person. The quantum need not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See Badmus & Anor vs. Abegunde (1999) LPELR-705 (SC), Eneh vs. Ozor (2016) 16 NWLR (part 1538) 219; Union Bank Plc vs. Chimaeze (2014) 9 NWLR (part 1411) 166. This is the guiding principle for the determination of quantum of general damages to be awarded in the event a civil claim succeeds. In general term, the Appellate Court is reluctant to interfere with general damages awarded by a trial Judge in the exercise of his discretion, except where the award was made under a wrong legal principle or is too low or too high. See the case of Nigerian Bottling Company Plc vs. Ubani (2013) LPELR-21902 (SC) at page 70, where Chukwuma-Eneh, JSC, held thus:
“In stressing the point further, the law is also firmly positioned that, for an appellate Court to interfere with award of general damages, it must be satisfied that the trial Court in assessing the damages applied a wrong principle of law, or took into account some irrelevant factors or left out some relevant factors such that the amount awarded is ridiculously too low or too high to represent a fair estimate of the damage.”
See also Anambra State Environmental Sanitation Authority & Anor vs. Ekwenem (2009) LPELR-482 (SC), per Adekeye, JSC.
In the earlier case of Union Bank of Nigeria vs. Ajabule & Anor (2011) LPELR-8239 (SC), the Supreme Court restated the same legal principle in the following words:
“The law is trite that where general damages are claimed, if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of law as to make it, in the Judgment of the appellate Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.” See also Cameroun Airlines vs. Otutuizu (2011) LPELR-877 (SC); UBN Ltd vs. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558.
In the instant case on appeal, the Respondent claimed before the lower Court, among other reliefs, the sum of One Hundred Million Naira (N100,000,000:00) against the Appellants as damages for negligence. The lower Court awarded the said amount to the Respondent as damages for negligence against the Appellants jointly and severally in addition to directing the Appellants to bear the cost of carrying out of adequate surgery on the Respondent. Explanation on why the lower Court decided to award the entire sum claimed by the Respondent against the Appellants has not been offered in the Judgment. If the purpose of damages is to serve as compensation for damage, injury or loss suffered by the Claimant, then, in view of the lower Court’s order on the Appellants to shoulder the cost of carrying out adequate surgery on the Respondent, the unexplained award of the sum of One Hundred Million Naira to the Respondent as damages against the Appellants is only ridiculously high and perverse because it did not take into account the legal principle for the award of damages as monetary compensation for injury suffered. I am in agreement with the submission of the Appellants’ counsel that in awarding the sum of One Hundred Million Naira to the Respondent as damages, the learned trial Judge allowed emotion and sentiment to take the better part of him. I find this an appropriate case in which this Court will interfere with the wrong exercise of discretion by the lower Court in the award of damages. Consequently, the award of One Hundred Million Naira (N100,000,000:00) damages to the Respondent is hereby set aside for being ridiculously too high and against the legal rules for the award of damages as monetary compensation for loss and injury suffered. In its place, I substitute and award the sum of Twenty Million Naira (N20,000,000:00) as damages to the Respondent jointly and severally against the Appellants. In making this award, I take into consideration the fact that by the nature of the injury sustained by the Respondent, it is near impossible for him to continue to ply his trade as a commercial vehicle driver, which was his means of livelihood.
Having resolved all the four issues in this appeal against the Appellants, save issue 4 which only succeeded in part, I hereby dismiss the appeal and affirm the judgment of the lower Court in Suit No. FHC/L/CS/1612/2013 delivered on 07/07/2017, subject to the variation under issue 4 with respect to the quantum of damages, now reviewed downwards from One Hundred Million Naira to Twenty Million Naira.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Muhammad Ibrahim Sirajo, JCA, made available to me in advance, a draft copy of this judgment in which this appeal was dismissed, except on the variation of damages from N100 million to N20 million. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support.
Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice. It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him under the principle of audi alterem partem, which is one of the legs of natural justice, Fair hearing demands that each party in a dispute is given opportunity to be heard. It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence or jurisdiction of the Court to entertain the matter. See Skenconsult (Nig.) Ltd. & Anor v. Ukey(1981) 1 SC.6, Leedo Presidential Motel Ltd v. Bank Of The North Ltd & Anor (1998) LPELR-1775(SC), Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC), Onwubuya & Ors v. Ikegbunam (2019) LPELR-49373(SC).
If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings.
A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside; FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC), Adegbola v osiyi (2017) LPELR-42471(SC), Achuzia v Ogbomah (2016) LPELR-40050(SC).
This Court found that notwithstanding the irregular service of the originating processes on the Appellants, the Appellants participated in the hearing at the lower Court. The question now is whether they are deemed to have waived their rights to complain about any irregularity in service of the originating processes on them at this stage.
A waiver can be defined as the abandonment of a right_ The Supreme Court, per Ogundare, JSC in Odu’a Investment Co. Ltd v. Talabi (1997) LPELR-2232(SC) at page 88, opined.
“What is waiver? Defining the word “waiver”. Idigbe J S.C. at page 22 Of the Ariori’s case said:
“By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right: it therefore, implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option. he could have insisted upon.”
Obaseki. J.S.C. at page 25 added:
“Waiver is according to Words and Phrases legally defined Volume 5 P.301 1969 edition reprinted 1974 defined as the abandonment of a fight. A person Who is entitled to the benefit of a Statutory provision may waive it and allow the transaction to proceed as though the provision did not exist.”
It follows, therefore, that where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to Object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to Object and cannot later in the proceedings seek to set same aside because of the original defect.”
See also Ariori & Ors v. Elemo & Ors (1983) LPELR-552(SC); Auto Import-Export v. Adebayo & Ors (2005) LPELR-642(SC).
The consequence of waiver is that it defeats non-compliance; NBC Plc v Ubani (2013) LPELR-21902(SC). Having participated in the hearing of the matter before the trial Court by filing pleadings and other processes challenging the competence of the suit, on grounds other than the proper service of the originating processes, a complaint of any irregularity in service cannot be entertained at this stage.
It is for the above reason, and for the fuller reasons given in resolution of the other issues addressed in the leading judgment that I also dismiss this appeal, save for the variation of damages from N100 million to N20 million. I abide by the orders made therein.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my learned brother. MUHAMMAD IBRAHIM SIRAJO and found out that he rightly resolved all the issues in this judgment.
In other to prove negligence, the Claimant has to show that the Defendant owes him a Duty of Care, the duty of care has been breached by the Defendant and that Breach of Duty caused the claimant damages. See DONOGHUE VS STEVENSON (1932) AC 562, CAPARO VS DICKMAN (1990) 2 AC 565 IYERE VS BENDEL FEED AND FLOUR MILL LTD (2008) LPELR-1578(SC), KOYA VS UBA LTD (1997) LPELR – 1711 (SC).
In this instant appeal, the Respondent has successfully proven the ingredients of negligence against the Appellants. The 1st Appellant owed a duty of care to ensure that in the course of discharging her cargo, to ensure that all users of the Waziri Jetty are not harmed by her operations. The bursting or breaking of the hose used in the discharge of the cargo is a breach of duty and that breach of duty caused the Respondent to suffer serious bodily injuries.
I also abide by the findings of my learned brother in the resolution of other issues.
Therefore, I abide by the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court in Suit No FHC/L/CS/1612/2013. I also abide by the decision as regards the quantum of damages awarded.
Appearances:
Wahab Dako with him Ruth Nwankwo For Appellant(s)
A. I. Chukwu For Respondent(s)
