NATIONAL AGENCY FOR FOOD AND DRUGS ADMINISTRATION AND CONTROL v. MR. EUGINE S. ONWUKA (2013)

NATIONAL AGENCY FOR FOOD AND DRUGS ADMINISTRATION AND CONTROL v. MR. EUGINE S. ONWUKA

(2013)LCN/6365(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2013

CA/K/128/2009

RATIO

ESSENCE OF A PRE-HEARING NOTICE

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

Between

NATIONAL AGENCY FOR FOOD AND DRUGS ADMINISTRATION AND CONTROL (NAFDAC) Appellant(s)

AND

MR. EUGINE S. ONWUKA Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A(Delivering the Leading Judgment): This is an appeal against the decision of the Kano State Federal High Court delivered on the 18th June, 2007. The genesis of this appeal is that by the Writ of Summons dated the 19th September, 2003, but issued on the 23rd September, 2003, the Respondent, i.e., the Plaintiff therein, initiated a civil action against the Appellant before the Kano Division of the Federal High Court. He claimed as per his Statement of Claim dated the 19th September, 2003 thus:

“1. A declaration that the seizure by the defendant of the plaintiff’s norica tomatoes paste, is unlawful. The sum of N5, 891,000.00 representing special and general damages suffered by the Plaintiff as a result of the action of the defendant.

PARTICULARS OF SPECIAL DAMAGES

(a) Cost of 4000 cartons of Norica tomatoes paste at N925.00 per carton = N3,700,000.00

(b) Cost of transportation from Lagos to Kano = N175,000.00
(c) Total cost of evacuation and transportation of product from Plaintiff’s whare (sic) house in Kano to the defendant’s Kano office = N16,000.00.

General damages resulting from loss of profit and use of capital, defamation of character, unlawful arrest and detention = N2, 000,000.00 (Two Million Naira)

2. Cost of this action.”

Following service of the processes on the Appellant, the Appellant via its former Counsel, R. E. Osamor Esq., entered a Conditional Appearance by the Memorandum of Appearance dated the 13th July 2004 and filed on the 16th July, 2004. The said document was accompanied by a Notice of Preliminary Objection dated the same 13th July, 2004 and filed on the 16th July, 2004 challenging the competency of the action on the ground that no Pre-Action Notice was issued to the Appellant as mandated by section 26 of the National Agency for Food Drugs Administration and Control (NAFDAC) Decree, 1993 (Now Act). A Counter Affidavit to the Preliminary Objection was filed by the Respondent, exhibiting the document titled “Notice of Intention to Commence a Suit against Your Agency.” Then, on the 10th December, 2004, the Appellant filed its Statement of Defence dated the 10th December, 2004. On 27/11/2004, the Appellant’s Preliminary Objection was withdrawn. It was on the same date the Appellant was granted leave to file its Statement of Defence out of time and the matter was adjourned to the 10th January, 2005 for hearing. The matter could not be proceeded with on the said 10/1/2005 and 31/1/2005 it was fixed for hearing. Then, from 31/1/2005, it was further adjourned to 2/3/2008.

Hearing commenced on 2/3/2005 as scheduled. P.W.1’s evidence was taken. Both his evidence in chief and cross-examination lasted till the 9th June, 2005. It was then adjourned to 14/7/2005. On 14/7/2005 the Respondent and its Counsel were absent which led to the matter being adjourned to 26/10/2005.

On 26/10/2005, hearing in the matter could not continue due to the absence of the Appellant and it’s Counsel from the proceeding. This then informed the Court to make an order for hearing notice to be served on the Appellant’s Counsel in Abuja by Registered Post. The record of the appeal shows that on 2/8/2006 hearing continued with the Appellant’s Counsel in attendance. P.W.2 testified in chief and was cross-examined after which the matter was adjourned to 20/8/2006 for re-examination and defence to open. However, on 20/8/2006, both the Appellant and his Counsel were absent, and the matter was further adjourned to 28/9/2006. On 28/9/06 when the matter was called up, all the parties and their respective Counsel were absent and the Court adjourned it to 16/11/2006.

The record further shows that on 16/11/06, the matter was further adjourned to 16/1/2007 for lack of service of hearing notice on the Defendant. An order for fresh hearing notice to be served on the Appellant was again made by the lower Court. Then on 16/1/2007, there was proof of service of the hearing notice on the Appellant as recorded by the lower Court, still, the Appellant and its Counsel failed to appear before the Court to open the case for Defence. As a result, the Respondent’s Counsel urged the lower Court to foreclose the Defendant’s defence and give them date for address. The order was so made and the matter was adjourned to the 22nd February, 2007 for address. Hearing notice was ordered to be served on the Appellant’s Counsel. On the said 22/2/2007, the Appellant and its Counsel absented themselves from Court and the matter was further adjourned to 24/4/2007 for adoption of address by Counsel. Address was adopted by the Respondent’s Counsel on 24/4/2007 as scheduled by the lower Court with the Appellant’s Counsel still absent, despite service of hearing notice on him. Consequently, the matter was adjourned to 24/5/2007 for judgment. The judgment of the lower court was eventually delivered on 18/6/2007 in favour of the Respondent. The Court awarded relief No. 1 in paragraph 17 of the Statement of Claim, reliefs (a), (b) and (c) as special damages and N500,000 as general damages to the Plaintiff against the Defendant.

Being distraught with the judgment the Appellant lodged an appeal against the same by a Notice of Appeal dated and filed on 27/1/09. The parties filed and exchanged their Briefs of Argument. The Appellant distilled three issues from its three grounds of appeal and they are:

“a. Whether the lower Court had jurisdiction to have entertained the suit when the Respondent failed to have complied with a condition precedent before instituting the suit.

b. Whether the Learned trial Judge had the jurisdiction to entertain the suit when the Appellant was not personally served with the Court processes as required by section 27(2) of the National Agency For Food and Drug Administration and Control Act, Cap N 20 Laws of the Federation, 2004.

c. Whether the Appellant’s right to fair hearing had been breached when it was not served directly with the hearing notices when it was obvious from the record of the Suit that the Appellant Counsel had abandoned the brief.”

In the Appellant’s submissions regarding issue No. 1, his learned Counsel, Anthony Agbonlahor Esq; reproduced the provisions of section 27(1) of the National Agency For Food and Drug Administration and Control Act, 2004 which mandated the service of Pre-action Notice before the commencement of an action against the Appellant and then cited the cases of Akinterinwa vs. Oladunjoye (2000) 4 SCNJ 149; Itaua v. Ime (2000) 7 SCNJ 40; Bamgboye vs. University of Ilorin (1999) 6 SCNJ 295; Dike vs. Nzeka (1986) 4 NWLR Part 34 page 144; Lana vs. University of Ibadan (1987) 4 NWLR Part 64 page 245; Madukolu vs. Nkemdilim (1962) 1 ALL NLR at 595; Odofin vs. Agu (1992) 3 NWLR Part 229 – Ratio 2; Rossek vs. ACB (1993) 10 SCNJ 20 at page 42 – 43 (Condensed as Ratio 6); NNPC vs. Evwori (2007) 9 WRN 160; Amadi vs. NNPC (2000) 10 NWLR Part 674 page 76; Ngelegla vs. Tribal Authority Nnongowa Chiefdom (1953) 14 WACA 325 at 327; Attorney General, Lagos State vs. Dosunmu (1989) NWLR Part 111 page 552- Ratio 6 and Onyema vs. Oputa (1987) 3 NWLR Part 60 page 259. It was contended that the Respondent did not plead in his statement of claim that he served the mandatory one month Pre-action Notice on the Appellant. It was submitted that parties are bound by their pleadings and any evidence led on any unpleaded fact goes to no issue and ought to be rejected by Court. Learned Counsel submitted that failure to serve the one month Pre-action Notice completely robbed the lower Court of the jurisdiction to entertain the matter, in that, the condition precedent to the institution of the action was not complied with by the Respondent. He stressed that the parties cannot on sympathetic grounds by assent or consent confer jurisdiction on the Court to entertain the action. He then urged that this issue be resolved in favour of the Appellant.

With respect to issue No. 2, Counsel made reference to the contents of section 27(2) of the NAFDAC Act and contended that the Respondent’s Writ of Summons was not served on the Director-General of the Appellant and that no attempt was made by the bailiff of the Court at personal service as stipulated by the Rules of this Court, and that no order for substituted service was made by the Court. He relied on Fawehinmi vs. IGP (2002) 7 NWLR Part 767 page 606 at 678; Ehuwa vs. Ondo State, NEC (2007) 13 WRN 1 Ratio 13 Arinze vs. NNPC (1991) 1 NWLR Part 166 page 258 at 269; Gbadamosi vs. Nig. Railway Corporation (supra) and Okafor vs. A.G. Anambra State (1991) 6 NWLR Part 200 page 659, and, submitted that the Court lacked the requisite jurisdiction to have entertained the suit in the absence of the Appellant being properly served in accordance with the NAFDAC Act and the Rules of Court, therefore, the entire proceeding is a nullity.

On issue No. 3, learned Counsel submitted that the failure of the Appellant’s Counsel and the lower Court to notify the Appellant of the respective dates of hearing has occasioned a miscarriage of justice. He stressed that a party can only diligently prosecute his case if he has notice of the case or if he is aware of it. He urged that where the Appellant’s Counsel was continuously absent in Court, the lower Court ought to have issued a hearing notice. Learned Counsel made reference to the cases of Olatunji vs. Alaba (1998) 8 NWLR Part 563 page 569 at 585, Omoniyi vs. Central Schools Board Akure (1988) 4 NWLR Part 89 page 448; Ojora vs. Oduns (1964) NMLR 12; John vs. Blakk (1988) 1 NWLR Part 72 page 648; Odutola vs. Kayode (1994) 2 NWLR Part 324 page 1; Nigo Hotels International vs. Nicon Hotels Ltd (2007) 41 WRN 125- Ratio 9; Onwuka vs. Owolewa (2001) 7 NWLR Part 713 page 695 at 710; Credit Alliance Fin. Service Ltd vs. Mallah (1998) 10 NWLR Part 569 page 341 at page 348 paragraph B; John A.S.C Ltd. V. Mfon (2007) 4 WRN 173 at 190 Line 40 – 45; N.N.P.C vs. Tijani (2007) 35 WRN 17 Ratio 7; Wema Bank Nig. Ltd vs. Odulaja (2007) 7 NWLR Part 663 page 1 Ratio 1; F.M.B.N. vs. Kasumu (2006) 6 WRN 62 at page 77 lines 25 – 30; Nigerian Bottling Co. Plc vs. Osafisan (2007) 7 WRN 89 at page 102 Lines 35 – 40; Mohammed vs. Hussein (1998) 14 NWLR Part 584 page 108 at 136; Idiata vs. Ejeko (2005) 11 NWLR Part 936 page 349 at 365; Adeyemi vs. Lan & Baker (Nig) Ltd (2000) 7 NWLR Part 663 page 33 – Ratio 1; Agena vs. Katseen (1998) 3 NWLR Part 543 page 560 – Ratios 1 & 2 and Okafor vs. A.G. Anambra State (1991) 6 NWLR Part 200 page 659 and persuaded this Court to hold that the Appellant’s right to fair hearing had been breached by the failure to serve it with the requisite hearing notice.

The Respondent raised a Preliminary Objection to the competency of grounds one and two of the Appellant’s Grounds of Appeal. He argued they involve issues that are being raised for the first time in this Court, therefore, leave of the Court was required before they can be raised.
He relied on Oshinowo vs. Oshinowo (2005) ALL FWLR Part 281 page 1698 at 1719-1720 paragraphs H-A and urged this Court to strike out both grounds of appeal.

In dealing with the appeal, learned Counsel presented two issues, that is to say:

“1. Whether from the facts and circumstances of this case especially in the light of the provisions of the law for a Pre-action Notice and personal service of the Court processes on the Director General of NAFDAC, the suit was properly brought before the lower Court? Grounds one and two of the Notice of Appeal are covered by this issue.

2. Whether from the facts and circumstance of this case, the Appellant who deliberately abandoned his case halfway can be said to have been deprived of its right of fair hearing?

Ground 3 of the Notice of Appeal is covered by the issue.”

Learned Counsel for the Respondent explained that Counsel for the Appellant entered a conditional appearance on behalf of the Appellant and later filed a Motion on Notice dated the 21st October, 2004 wherein he applied that the matter be struck out for lack of service of Pre-action Notice on the Appellant. Then, when the Appellant’s Counsel was served with a counter-affidavit to which was attached, proof of service of the Pre-action Notice served on the Appellant, Appellant’s Counsel applied to withdraw the motion. He also, made an oral application for extension of time within which to file the Appellant’s Statement of Defence, which said application was granted by the lower Court. The parties then joined issues but, none was on Pre-action Notice. Counsel for the Appellant participated in the trial until it was for defence. He, however, argued that Pre-action Notice is a right that can be waived.

He cited Feed and Food Farms (NIG) Ltd vs. Nigeria National Petroleum Corp. 1448 (2009) Part 484 page 1436 at 1447-1448 paragraphs H-B in support. He stated that by withdrawing the Appellant’s Motion on the issue of Pre-action Notice, Appellant’s Counsel is estopped from raising the same on appeal.

Commenting on the issue of personal service, learned Counsel, also highlighted that never was there a time at the lower Court, the Appellant’s Counsel raised the issue of non-personal service or improper service on the Appellant. He stated that the Appellant filed its Statement of Defence and participated at the trial by cross-examining the witnesses for the Plaintiff. Learned Counsel referred to the Book on Civil Procedure in Nigeria, 2nd Edition page 261, last paragraph by Mr. Fidelis Nwadialo and the cases of Job Charles (Nig) Ltd vs. Okonkwo (2002) Part 117 page 1067 at page 1077-1078 paragraphs H-A; Public Finance Securities Ltd vs. Jefia (1998) 3 NWLR Part 543 page 602 at 612 paragraph A-B; Bank of Ireland vs. Union Bank of Nigeria Ltd and anor (1998) 7 SCNJ page 385 at 396 paragraphs 25 to 35; University of Ilorin vs. Oluwadamilare (2003) FWLR Part 147 page 1195 and Kalamu vs. Gurin (2003) 16 NWLR Part 847 page 493 and submitted that there cannot be a better evidence of service than the appearance of the party served in Court. He argued that the Appellant by appearing and participating at the proceeding has waived all the rights to complain.
He referred to section 26(2) (a) and (b) of the NAFDAC Act particularly the provision that provided that the writ could be sent by registered post addressed to the Director-General at the head office of the Appellant, and, submitted that the provisions of the law were fully complied with.

Submitting in respect of issue No. 2, Learned Counsel stated that neither the trial Court nor the Respondent’s Counsel was informed of any withdrawal of representation by the Appellant’s Counsel. He argued that it was absurd for the Appellant’s Counsel to have contended that the lower Court ought to have issued a hearing notice to the Appellant since the Court was not endowed with any magical power to have conjectured anything. He then referenced the case of Muhammed vs. Kpelai (2001) ALL FWLR Part 69 page 1404 at 1415 paragraphs A-B, where it was held that a defendant in a suit, though, he has briefed his Counsel, ought to attend Court sittings to follow the progress of the case. The Court will not indulge a nonchalant and lackadaisical attitude from a defendant who want to absolve from liability. Equity aids the vigilant and not the indolent. As such, it does not lie in the mouth of an indolent defendant who absented himself from the proceedings, up to judgment to complain that he was not availed his constitutional right to fair hearing. He, therefore, urged this Court to resolve this issue against the Appellant.
Reacting to the Preliminary Objection raised by the Respondent’s Counsel to the competency of grounds 1 and 2 of the Appellant’s grounds of appeal, learned Counsel for the Appellant observed that the objection was raised in the Respondent’s Brief of Argument and not by way of motion, and as such, it is incompetent.

To deal decisively with the Respondent’s contention, I must have recourse to my pronouncement in the judgment of this Court in Appeal No: CA/K/333/2007; Between Guaranty Trust Bank Plc v. Fadco Industries Nig. Ltd & anor delivered on the 10th May, 2013 at pages 13-20 based on the recognized and long aged principle of law thus:

“Our apex Court; have, in recent time, made diverse pronouncements as to when and how a Preliminary Objection to the Notice of Appeal or any issue ought to be raised by a Respondent. Even though our Rules of court are quite explicit and sounded mandatory in its form as to how to raise a Preliminary Objection, the Supreme Court, had in a plethora of cases, in the interpretation of the Supreme Court Rules that are in pari materia with the Court of Appeal Rules, on the mandate to file a Motion on Notice in which Preliminary Objection can be raised, been quite liberal in its interpretation of those provisions and accommodated situations where the Respondent raised the Preliminary Objection in his Respondent’s Brief of Argument instead of by way of Motion on Notice. For instance, in Nwaolisah v. Nwabufoh (2011) 14 NWLR Part 1268 page 600, the apex Court, per Rhodes-Vivour, J.S.C., while considering the provisions of Order 2 Rule 9 of the Rules of the Supreme Court that are in pari materia with our own Rules, opined that the Respondent is enjoined to give the Appellant three days notice before the hearing. The purpose of the rule is to ensure that the Appellant is not taken by surprise, and he has adequate time to respond. These days, preliminary objection are argued in the Respondent’s Brief thereby obviating the need to file a separate notice of preliminary objection, and to save time. Absence of the required notice makes the preliminary incompetent.

In Ucha vs. Elechi (2012) 13 NWLR Part 1317 page 330, Rhodes-Vivour, J.S.C., further expressed that it is long settled that arguments on Preliminary Objection can be incorporated in briefs of argument thereby obviating the need to file a separate Notice of Preliminary Objection, where a Preliminary Objection is filed in the respondent’s brief as in this case, he must at the hearing apply or seek leave of the Court to raise and argue the objection. Where it is not moved orally, the objection would be treated by the Court as abandoned.
See also, Oriorio vs. Osain (2012) 16 NWLR Part 1327 page 560 at 578, where Ngwuta, J.S.C., opined that a party intending to rely on a Preliminary Objection to scuttle the hearing of an appeal has to comply with the Supreme Court Rules regarding same. Order 2 rules 9(1) & (2) of the Supreme Court Rules 1999 (as amended) provides:

“Order 2 rule 9(1): A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together, with ten copies thereof with the Registrar within the same time.

Rule 9 (2): If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.”

There is absolutely no compliance with the rules reproduced above and in the exercise of the discretion vested in the Court by rule 2 of the Order, I refuse to entertain the objection for noncompliance with the rules. The initiating process is the notice which the Respondent did not give.”

It is imperative to observe that after the pronouncement of Ngwuta, J.S.C., in the judgment delivered on the 22nd May, 2012, the same Supreme Court in the case of FRN vs. Raji Ashade (2013) in Suit No. 400/2010 or (2013) LPELR-20663 (SC) delivered on the 31st May, 2013 considered the Preliminary Objections raised by the 3rd, 7th and 10th Respondents in their Joint Brief of Argument. The said Preliminary objection raised in the said Joint Brief of Argument of the 3rd, 7th, and 10th Respondents was not discarded because it was not raised in accordance with the Rules of the Supreme (though, I must acknowledge that that was not made an issue before the Supreme Court). The salient point is that the said preliminary objection was considered and ruled upon. It was upheld, and, based on that, the appeal therein was struck out for being incompetent. I must state that all these considerations became necessary due to the approach adopted by my learned brother towards the Preliminary Objection raised by the Respondents. Therefore, based on the aforestated opinions of our revered jurists on this point, I find it difficult to share the view that since no separate Motion on Notice was filed by the Respondent raising the Preliminary Objection challenging the competency of the Notice of Appeal, the Preliminary Objection raised in the Brief of Argument of the Respondents is invalid and should not be considered at all, since by every implication, the Appellant has had more than the three days Notice prescribed by the Rules of this Court.

As clearly demonstrated by the apex Court, the essence of filing Motion on Notice is to give to the Appellant the adequate three days notice required before argument on it could be taken before the Court. It is, therefore, my profound view that since the Respondents raised the Preliminary Objection in their Respondents’ Brief of Argument dated the 14th January, 2013 and filed on the same date, and, to which the Appellants responded, via the Appellant’s Reply Brief dated and filed on the 9th April, 2013, adequate Notice had, by the provisions of the Court of Appeal Rules, been given to the Appellant. See FRN vs. Raji Ashade (supra).
It is important to note that the Appellant in its Reply Brief did not challenge or attack the validity of the Notice of Preliminary Objection raised in the Respondents’ Brief, a method, the Supreme Court had, in unaccountable cases, treated as an accepted form of raising Preliminary Objection to the competency of an appeal or Notice of Appeal. It was raised by my learned brother suo motu in the majority judgment of this Court. I must observe that since no miscarriage of justice was shown to have been occasioned by non-compliance with the Rules of this Court requiring filing of separate Motion on Notice, when the Supreme Court had interpreted similar provisions in their Rules of Court and adjudged that as now accepted practice to raise a Preliminary Objection in a Respondent’s Brief of Argument, acting otherwise would amount to leaning on technicality to obviate the course of justice, which the Supreme Court, also, frowned at in Sa’eed vs. Yakowa (2013) 7 NWLR Part 1352 page 124 when dealing with non-filing of Motion in respect of pre-hearing notice, Fabiyi, J.S.C., said at page 156 thus:

“The essence of filing the pre-hearing notice as in Form TF007 and the answers thereto in Form FT008 by the petitioners is to give the Respondents an insight on the issues to be dealt with and narrowed down during the Prehearing session. It’s non-filing at all can vitiate or void the petition. That the petitioner did not come by way of motion equates with mere irregularity which can be cured by paragraph 53 of the First Schedule to the Act. This is more so since the pre-hearing session was in fact conducted with parties’ counsel in attendance.

There is no doubt that there was procedural irregularity. But it was one which did not lead to any miscarriage of justice. Such a procedural irregularity should not vitiate the petition in the prevailing circumstance. It is the paramount duty of Courts to do justice and not cling to technicalities inherent in rules of Court so long as same have been substantially complied with and the object of the rule is not defeated and failure to comply has not occasioned a miscarriage of justice. The view of the Court or any rule of practice does not generally render proceedings void.”

Further Ngwuta, J.S.C. stated thus:

“Going by the letter of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended, one would say that the objection raised by the 1st Respondent is sustainable. Be that as it may, the spirit shall prevail over the letter of the law. In the quest for the elusive abstraction called justice our laws and rules have come of age. Technicality with its stifling strictures must yield place to substantial justice.

The purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of prehearing notice, a party who has taken part in the proceedings cannot be heard to argue that the rule was not been complied with, more so when there is no allegation of miscarriage of justice from the non-compliance. See Ipinlaiye II vs. Olukotun (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR Part 453 Page 148; Akhiwu vs. Principal Lotteries Officer Midwest (1972) 1 All NLR Part 1 page 229 at 238; Okwechime vs. Philip Igbinadolor (1964) NMLR 132.
In the absence of any showing to the contrary, the appeal sought to be struck out for non-compliance with Paragraph 18 (1) of the 1st Schedule to the Act in the Petition from which the appeal arose, comes within the warm embrace of the saving provisions in paragraph 53 of the said 1st schedule to the Act. The rules as the handmaids of the law cannot constitute obstacles on the paths of substantial justice under the law.”

Further, in Udenwa vs. Uzodinma (2013) 5 NWLR Part 1346 page 94 at 105, Ariwoola, J.S.C., stated that a Preliminary Objection which challenges the competence or jurisdiction of an Appellate Court to hear and determine an appeal, as in this case, should first be considered and determined. This is because, the Court has to convince itself it has the authority to determine the appeal as there is the risk of the Court acting in vain in the event that the appeal is determined when the Court has no competence or jurisdiction to do so.
It is an established principle of law that the purpose of a Preliminary Objection to an appeal is to bring the appeal to an end on the basis that it is incompetent or fundamentally defective, or both. Accordingly, once a Preliminary Objection is raised, an Appellate Court is expected to deal with and dispose of the objection before taking any further step in the Appeal. In this case, the Respondents’ Preliminary Objection had to be determined before any other step could be taken in this appeal.

Ariwoola, J.S.C., further observed that the Notices of Preliminary
Objections filed by both respondents were raised in the respondents Brief of Argument. He further expressed that Preliminary objection in a case is an objection that, if upheld would render further proceedings before the court impossible or unnecessary.”

It is explicit in the foregoing that the observations of learned Counsel for the Appellant on the competency of the Preliminary Objection raised by the Respondent, are not based on realistic considerations, I would therefore, not countenance it, and, then proceed to consider the grounds of the objection. The main contention of the Respondent is that grounds 1 and 2 of the Appellant’s grounds of appeal did not emerge from the judgment of the lower court, they are new issues which ought to be raised only by leave of this Court having been obtained. The two grounds complained of (without their particulars) are thus:

“Ground 1

The Honourable Court erred in law in entertaining the suit when it lacks the jurisdiction to entertain the suit and the Plaintiff failed to comply with the condition precedent before instituting the suit against the Defendant.

Ground 2

The Honourable Court lacked the jurisdiction to entertain the suit as the Defendant/Appellant was not served personally with the Court processes as required by section 27(2) of the National Agency For Food and Drug Administration and Control Act, Cap. N20, Laws of the Federation 2004.”

The record of this Court manifestly demonstrated the uninterestedness of the Appellant in prosecuting its defence in the suit before the lower court. It had ample opportunity to present its case but the same was not utilized although the Respondent’s two witnesses were effectively cross-examined by its Counsel then, one Lagi Innocent Esq. The Appellant, who, though via its Counsel, entered a conditional appearance on the 16th July, 2004, filed a Notice of Preliminary Objection challenging the competency of the suit on the ground that it was not served with a Pre-action Notice before the commencement of the suit. Later, on the 27th November, 2004, it withdrew the said Motion on the ground that there was reason to believe that the Appellant has been served with the Pre-action Notice which formed the basis of their Preliminary Objection. The Appellant’s Counsel applied that the Motion be struck which was indeed struck out. Learned Counsel admitted before the lower Court that there was proof of service of Pre-action Notice attached to the counter-affidavit filed by the Respondent in challenge of the said Motion. The withdrawal and striking out of the motion then removed the issue of non service of pre-action notice from the docket of the lower Court for determination. It is equally stark in the record of this appeal that no issue was raised by the Appellant contesting non-service of the Writ of Summons on the Director General of the Appellant as stipulated by section 27(2) of the NAFDAC Act, 2004. The record buttressed the fact that the Appellant appeared before the lower Court via its former Counsel, Lagi Innocent Esq. The Appellant evidently participated at the hearing of the suit at the lower Court and even had the perfect opportunity of cross-examining the two witnesses presented by the Respondent to establish his case. The Appellant refused to put its defence across in the witness box and address the Court. The only issue for determination recognized by the lower Court as was adumbrated by the Respondent’s Counsel in his address was; “Has the Plaintiff proved his claimed in line with his pleadings and on the balance of probabilities. This was examined by the lower Court after which it held that, “there is ample evidence in proof of the Plaintiff’s case while there is none on the part of the Defendant either in support of the Statement of Defence or in rebuttal of the Plaintiff’s evidence”. It is boggling how and from where the Appellant raised its first and second grounds of appeal. Even though the two issues appear to be challenging the jurisdiction of the lower Court to have entertained the action, there was no way the lower Court could have erred or be said to have erred when no such issues were raised by any of the parties for its determination.
Be that as it may, it is trite that any issue touching on the jurisdiction of the Court to entertain a suit could be raised for the first time on appeal before the Appellate Court. Non service of a Pre-action Notice is a fundamental vice that strikes at the root of the case. The requirement must be complied with before an action against the Appellant can be said to be properly instituted and failure to comply with the same would invariably lead to the action being declared incompetent. In Ugwuanyi vs. NICON Insurance Plc. (2013) 11 NWLR, Part 1366, page 546, it was held that the service of the requisite Pre-action Notice required by section 26(2) of the National Insurance Corporation of Nigeria Act was a condition precedent to the competence of the trial Court.
In the instant matter, the Appellant had at one point admitted it was served with a Pre-action Notice, therefore, it is inappropriate for it to turn round now and allege it was not served with a Pre-action Notice, speaking from the two sides of its mouth. It is the law that a party cannot approbate and reprobate at the same time. The Writ of Summons in the suit was issued on 23/9/2003, whereas the document displayed at page 27 of the record emanating from M. N. Duru & Co, Solicitors for the Respondent, titled “Notice of Intention to Commence A Suit Against Your Agency” addressed to the Director-General, National Agency For Food and Drug Administration and Control is dated the 27th July, 2013. It was as a result of this document that the Appellant’s Counsel withdrew its Notice of Preliminary Objection on the 27th November, 2004. There is ample proof that the Appellant was served with Pre-action Notice, therefore, issue No. 1 is hereby resolved against the Appellant.

In considering issue No. 2, it is worthy to note that section 27 (2)(a) and (b) of the NAFDAC Act clearly prescribed two ways of serving Pre-action Notice, Summons, Notice or other document required for authorized to be served on the Agency. The service can be effected either (1) by delivering the same to the Director-General or (2) sending it by Registered Post addressed to the Director-General at the Head Office of the Agency. The Respondent asserted via his counter-affidavit deposed to on his behalf by one Collins Ukachukwu, the litigation Secretary in the Law Firm of the Respondent’s Counsel, that the Appellant was served with a Pre-action Notice through the Red Star Courier Service, addressed to its Director-General at Plot B1057, Ikeja Crescent, off Oyo Street, Area 11, Section 1, Garki, Abuja. This was evidenced by Exhibit M.N.D. 2 dated 8/8/03 with No. 1002242 titled “Red Star Express”, ‘Domestic Airway Bill Non-Negotiable’. It was received on the same day. It was further portrayed in Exhibit ‘M.N.D.3’ to have been received at what looks like 15.15pm. The time stated therein is a bit blurred. I am completely at a loss as to the grouse of the Appellant in its issue No. 2. It seems bizarre in the light of the overwhelming evidence that one of the modes prescribed by section 27(2) of the NAFDAC Act for service of the pre-action Notice or any process was fully complied with by the Respondent. There is abundant proof that the Appellant’s Director-General was served by registered post. Accordingly, issue No. 2 is hereby resolved against the Appellant.

Issue No. 3 is ‘Whether the Appellant’s right to fair hearing had been breached when it was not served directly with the hearing notices when it was obvious from the record of the Suit that the Appellant Counsel had abandoned the brief.

To tackle this, it has to be observed that the copies of affidavits of service of all the processes including hearing notices served on the Appellant and its Counsel are contained at pages 41-63 of the record of this appeal. There was no revelation in the record that the Appellant’s former Counsel, Lagi Innocent Esq., who represented the Appellant at the hearing up to the cross-examination of P.W.2 on the 2nd May, 2006, wrote to the lower Court indicating his withdrawal from the suit. Although the Appellant had all along been represented by its Counsel in the Court, it never deemed it necessary, even for a day to send any of its staff to represent it as a party to aid it keep abreast of the stage of the proceeding. There was, also, no letter from the Appellant to the Court informing it that its Counsel abandoned legal practice to explore his political ambitions. Since the Appellant had knowledge of the fact of abandonment of its case by its Counsel, it behoved the Appellant to send a representative to inform the Court of its plight and then seek for an adjournment to enable it engage the services of another Legal practitioner. It folded, its arms and left the Court in the dark as to the state of its representation in the Court. It ought to have acquainted the Court with the development because the Court does not practice clairvoyance. In Folhod Investment Ltd vs. Alpha Merchant Bank Ltd (1996) 10 NWLR Pat 478 page 344 at 349, the Supreme Court opined that although a litigant should not be deprived of an opportunity of a hearing, yet a litigant who by misjudgment or deliberate decision does not avail himself of the opportunity of a hearing cannot complain. Also, in the case of S & D Construction Company vs. Chief Bayo Ayoku & Anor (2003) 5 NWLR Part 813 page 278 at 286, it was held that “where in the course of hearing, a party had the opportunity to present his case but failed to utilize the opportunity afforded him to ventilate his case, he cannot thereafter blame his adversary or the Court for his failure as he had been afforded a fair hearing”. In A.G., River State vs. Ude & ors (2006) 17 NWLR Part 1008 page 436; Musdapher, J.S.C. (as he then was) expressed that natural justice is fair play in an action. A hearing of matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and capable of being set aside by the Court that gave it or by an appellate Court. But a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from the hearing or failed to give evidence when called upon to do so. Once a trial has commenced after the issues have been joined at the pleadings, there is fair hearing when a party refuses or neglects to take part in the proceedings. The duty of the Court is to provide a level ground and give everybody an environment within which to ventilate his claims and defence. It is elementary law that the rules or principles of equity help only the vigilant and they do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happened, the Courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant.
Ogbuagu, J.S.C., in his judgment referred to the case of Taiwo Ajani vs. Situ Giwa (1986) 3 NWLR Part 32 page 797 at 806 where Oputa, J.S.C., held “section 33(1) guarantees the Plaintiff a fair hearing of his case within a reasonable time which constitutional guarantee should never be held hostage by the laziness, tardiness or delaying tactics of Defence Counsel. He further referred to the case of Kaduna ile Ltd vs. Umar (1994) 1 NWLR Part 317 page 143 at 159 where Achike, J.C.A. (as he then was stated inter alia thus; “The question is, is it fair and just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not, it goes without saying that justice must be even handed, for the law is no respecter of persons.” Holding the Court to ransom was described by Oputa, J.S.C., as an “intolerable situation indeed.” It is settled that the Courts do not aid the indolent. The principle or rule comes into play only where a party is denied any opportunity to be heard. It is not applicable to a defendant who fails to appear to defend an action against him. A defendant who fails to come to Court to defend an action against him cannot complain of denial of fair hearing under section 33(1) of the 1979 Constitution.
There is no doubt in the present case that the Appellant and its Counsel willfully absented themselves from the hearing at the lower Court, particularly at the time it was its turn to present its defence. Its Counsel appeared last on the 2nd May, 2006 and had full knowledge of the hearing of the suit. The Appellant and its Counsel deliberately kept away from the Court and now the Appellant is complaining of denial of fair hearing. There were several proof before the lower Court that hearing notices were served on the Appellant’s, Counsel and, even at times, on the Appellant, the Appellant cannot now turn round to claim there was breach of its right to fair hearing. There is no iota of substance in its claim. It had ample opportunity but deliberately failed to utilize the same.
In the end and in the light of the aforementioned Supreme Court decisions, I have no difficulty in resolving issue No. 3 against the Appellant. Accordingly, this appeal is devoid of merit and it is hereby dismissed. I make no order as to costs.

ABDU ABOKI, J.C.A: The judgment just delivered by my learned brother T. N. Orji-Abadua, JCA, was made available to me before now. I agree with the conclusion reached at, that the appeal is devoid of merit and is dismissed.
I too make no order as to costs.

ITA G. MBABA, J.C.A: I have had the privilege of reading the lead judgment by my learned brother, T.N. Orji-Abadua, JCA. I agree with his reasoning and conclusion on the issues, that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential order therein.

Appearances

Anthony Agbonlahor Esq.For Appellant

AND

M. N. Duru EsqFor Respondent