Anthony Okeke V. Petmag Nigeria Limited (2004)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of Justice I. E. Ogbodu, of Delta State High Court, holden at Ogwuashi-Uku, dated 2/2/2000. The plaintiff/respondent in his amended statement of B claim, claimed against the defendant/appellant as follows:
“Wherefore the plaintiff claims from and against the defendant as follows:-
(a) Return of the plaintiff’s said vehicle to the plaintiff in its pre-accident condition, its market value then being N500,000.00 (Five hundred thousand naira).
(b) Payment of the sum of N2,500.00 (Two thousand five hundred naira) per day to the plaintiff for loss of use of the said vehicle from 17/12/95 to 3/7/97, which comes to N1,407,500.00 (One million, four hundred and seven thousand, five hundred naira).
(c) Payment of the sum of N2,500.00 (Two thousand five hundred naira) per day to the plaintiff for the loss of use of the said vehicle from 4/7/97 until the defendant refer us the vehicle.”
The writ of summons in this case was issued and served with the leave of the lower court, thereafter; the defendant entered his conditional appearance and filed the statement of defence.
Thereafter, several hearing notices were issued and served on the defendant at his address for service within jurisdiction, and on the 2/8/99, the plaintiff opened his case after the court was satisfied with the proof of service. On the 20/10/99, the plaintiff closed his case after calling three witnesses, and the case was adjourned to 27/10/99 for address. On the 27/10/99, the plaintiff’s counsel addressed the court and the case was subsequently adjourned to 22/11/99 for judgment.
Thereafter, the defendant filed a motion dated 15/11/99 in which he prayed the court for the following reliefs:
“1. An Order arresting the judgment of this Honourable court slated to be delivered on the 22nd November, 1999.
2. An Order setting aside the proceedings this Honourable court had on the 20/5/99, 30/6/99, 12/7/99, 2/8/99, 30/9/99, 20/9/99, and specifically on the 27/10/99 for breach of fair hearing.
3. An Order commencing the hearing of this suit de-novo, so as to avail the applicant of the opportunity to cross-examine the plaintiff’s witnesses and defend this suit.”
The lower court in its ruling dated 22/11/99 dismissed the application and held thus:-
“It is difficult for court to see the basis for this application because it is in the record of this court that counsel, Mr. S.C. Ibekwe was served a fresh hearing notice on behalf of the defendant on 12/7/99, being the address for service in this jurisdiction, left by the defendant. Again, on 18/10/99, another hearing notice was served on the said Mr. S. C. Ibekwe. In view of this facts, defendant has failed to satisfy this court of any reason as to why he failed to appear to defend this action. The application is baseless and it is dismissed on the ground that it lacks merit. The court will therefore proceed to deliver the judgment on this case.” See page 86 of the record of proceedings.
Thereafter, the court proceeded and delivered its judgment in which it found for the plaintiff and ordered as follows: See page 91- 92 of the record:
“Finally, I find plaintiff’s case proved, and defendant liable for damages for the unlawful detention of the plaintiffs vehicle No. Delta AA 173 SHK for a period of over 3 years which infact still continues till now.”
It is therefore ordered as follows:
“1. Defendant shall immediately return to plaintiff said vehicle in its pre-accident condition.
2. Defendant shall pay to plaintiff the sum of N1,407,500.00 being cost of hire of alternative vehicle from 17/12/95 to 3/7/97.
3. Defendant shall pay to plaintiff the sum of N2,500.00 per day being the cost of the hire of an alternative vehicle, from 4/7/97 until when defendant finally returns the said vehicle to plaintiff.”
The defendant thereafter, by a motion dated 21/1/2000, prayed the lower court for the following orders:
“An Order setting aside all proceedings including service of the writ of summons and the judgment in this suit on the grounds as shown in the schedule subjoined hereunder.”
However, it was not shown on the records that this particular motion was moved. Hence, the appellant’s appeal in this case was against the earlier decisions of the lower court, stated above. The appellant in his amended notice and grounds of appeal filed three (3) grounds of appeal, shorn of their particulars are produced as follows:
“1. The learned trial Judge erred in law when he denied the appellant of fair hearing against the intendment of section 36 of the Constitution of The Federal Republic of Nigeria, 1999 and Order 47 rule 1 of the High Court (Civil Procedure) Rules, 1988 of former Bendel State as applicable to Delta State of Nigeria.
2. The learned trial Judge erred in law when he refused to hear/consider the appellant’s motion on notice dated 15th November, 1999 and rushed to deliver his judgment contrary to Order 8 of the High Court (Civil Procedure) Rules, 1988 of the former Bendel State as applicable to Delta State of Nigeria and section 75 Evidence Act, 1990.
3. The learned trial Judge erred in law by visiting the supposedly sin of counsel on litigant against the intendment of the decision in the case of Attorney-General of Federation v. A.I.C. Ltd. (1995) 2 NWLR (Pt.378) 388 at 403 (paragraph A).”
In accordance with the rules of this court, both parties filed and exchanged their respective briefs of argument. The appellant in his brief dated 16/3/02 formulated the following (4) issues for our consideration:-
“1. Whether the appellant’s fundamental right to fair hearing was breached by the trial court?.
2. Whether the action commenced by the respondent as plaintiff before the High Court was manifestly incompetent as to deprive the court jurisdiction to entertain the action?.
3. Whether the failure or neglect of Sylvester Ehikwe, Esq. (whose office was used as address for service within jurisdiction) to communicate and or transmit the hearing notices to the appellant and or his counsel was such a sin that could be visited on the appellant to deny his request for leave to enter defence?.
4. Whether the trial Judge could suo motu substitute the plaintiff’s cause of action without any application to amend the writ of summons and the statement of claim and to find the defendant liable on the substituted cause of action?.”
The respondent in his brief of argument dated 17/6/2002 also formulated four issues for determination of the appeal thus:-
1. Whether, the appellant’s fundamental right to fair hearing was breached by the trial court?.
2. Whether the non-joinder of Chijoke Ibe, the driver/servant of the appellant as a party at the lower court, fatal to the case of the respondent?.
3. Whether the plaintiff (respondent)’s action was incompetent for misjoinder of parties and/or misjoinder of cause of action?.
4. Whether the appellant has shown negligence or tardiness in the conduct of this action?.
The respondent on page 21 of its brief of argument raised a preliminary objection to ground (3) of the notice of appeal. This ground is a challenge to the ruling of the trial Judge dated 15/11/99, in which the lower court refused to set aside its proceedings or arrest its judgment. The learned counsel referred to section 242(ii) of the 1999 Constitution and submitted that since it is our appeal against the interlocutory decision of the lower court on the mixed law and facts, the appellant must obtain the leave of either the lower court or this court to appeal before the said ground could be said to be valid and competent.
A perusal of the third ground of appeal shows that it is a ground of mixed law and fact. The ground without its particulars is herewith reproduced thus:-
“The learned trial Judge erred in law by visiting the supposedly sin of counsel on litigant against the intendment of the decision in the case of Attorney-General of Federation v. A.I.C. Ltd. (1995) 2 NWLR (Pt. 378) 388/403.”
This ground revolves around the sins, which are facts that were allegedly committed by the counsel, which were visited on the litigants. The particulars to the ground glaringly brought out the question of facts involved such as:-
“(1) The appellant engaged the service of Messrs A.B. Ewuzie and Co. to defend this (sic) at the lower court.
(b) The appellant’s counsel is based in Kaduna State of Nigeria outside the jurisdiction of the lower court at Ogwashi-Uku, Delta State.
(e) The said Mr. Ehukwe, appellant’s counsel assured appellant’s counsel that he will telephone him to inform of any date to be fixed for the matter whenever a new presiding Judge is appointed to take over from the former Judge.
(f) Mr. Ehikwe, it was later revealed by the court, received two hearing notices on 12/7/98 and 18/10/98 respectively, but never communicated the appellant or his counsel of the said notices.”
A mere description of a ground of appeal as an error in law does not automatically make the said ground a pure issue of law. Where the particulars to the ground raise issue of mixed law and fact, in an appeal against the interlocutory decision of the lower court, i.e., High Court, the said ground would be incompetent unless the leave of court is sought and obtained. See section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria; and the case of Yusuf v. Union Bank of Nig. Ltd. (1996) 6 NWLR (Pt. 457) 632; (1996) 6 SCNJ 203. As a result, having failed to obtain the leave of either the lower court or this court to appeal on ground three (3) of the notice of appeal, the said ground is incompetent.
However, I wish to point out that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the court. This would help to avoid unnecessary delay in the determination of the main issues joined by the parties in the case under consideration.
An appellant who wishes to adopt this procedure may seek the leave of court, an appellant who appeals against the ruling of the lower court on a wrongful admission or rejection of evidence does not require such leave, as the ruling appealed against is not regarded as interlocutory decision, the appellant may therefore include the ground of appeal against the ruling of the trial court when appealing against the final judgment of the trial court. see Onwe & Ors. v. Nwaogbuinya & Ors. (2001) 3 NWLR (Pt. 700) 406; (2001) 1 SCNJ 157 at 168; Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179.
In the case at hand, having failed to obtain leave before filing the third (3rd) ground of appeal is fatal; subsequently, the third ground of appeal is hereby struck out together with the issues for determination and arguments based on it.
At the hearing of the substantive case, the learned counsel to the appellant adopted his brief of argument and urged this court to allow the appeal. On the 1st issue for determination, the appellant submitted that its fundamental right to fair hearing had been breached. That he was not served against the hearing conducted on 30/6/99 and 12/7/99. He however, conceded that he had submitted the address for service within jurisdiction. He submitted that service effected against the proceedings of 2/8/99 and 20/10/99 could not cover and justify the proceedings of 30/9/99 and 27/10/99, hence, the proceedings of those days amounted to nullity for lack of service.
He cited the cases of Leedo Presidential Motel Ltd. v. Bank of the North (1998) 10 NWLR (Pt. 570) 353; (1998) 7 SCNJ 328/354; African Continental Bank Plc v. Losada Nig. Ltd. (1995) 7 NWLR (Pt. 408) 26; (1995) 7 SCNJ 158; and Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1; (1994) 2 SCNJ 21 at 29.
On issue No.2, the appellant submitted that failure to join Chijioke Ibe or his estate, as a party to the case was fatal to the plaintiff’s claim since the said Chijioke Ibe was the driver who drove the vehicle that destroyed the respondent’s car. On the issue No.4, the appellant submitted that it was wrong for the trial court to have unilaterally corrected the plaintiff’s cause of action. This complaint is hinged on the statement of the trial Judge in his judgment at pages 91 lines 3-2, where the trial Judge said:-
“On the basis of this evidence of continued unlawful detention of plaintiff’s car at the instance of the defendant and which evidence is uncontroverted, I, therefore, find the facts proved against the defendant and I find him liable for the act of detinue in continuing to keep the plaintiff’s car.”
The learned counsel for the respondent adopted his brief of argument at the hearing of the appeal and urged this court to dismiss the appeal. On issue 1, the respondent contended that the appellant was aware of this case pending against him. He further contended that various hearing notices were served on the appellant but he failed to appear in court. He referred to proofs of service against 2/8/99, and 18/10/99 respectively (sic). He therefore submitted that where writ of summons had been served personally on the defendant, who thereafter provided an address for service, no further personal service is requited.
He relied on Order 12 rule 1 of Delta State High Court (Civil Procedure) Rules. He then submitted that it is not correct for the appellant to contend that the hearing notice served on him cannot cover and justify the proceedings of 30/9/99, 20/10/99 and 27/10/99. The essence of hearing notice is to remind a person/party of a pending action. He distinguished the authorities cited by the appellant from the case at hand.
On issue No.2, he submitted, Chijioke Ibe is not a necessary party to the case since he was an agent of a disclosed principal. He then submitted that the non-joinder of the said Chijioke was not fatal to this action. He cites in support the case of- Ifeanyi-Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt. 656) 322; (2002) 76 LRCN 614 at 619.
On the issue No.4, the respondent submitted that it is lawful for the trial court to try any such number or several causes of action together if same can be conveniently or disposed together. The claim granted by the lower court did not on its own award any claim to the respondent.
My lords, I wish to quickly dispose of the issues Nos. 2 and 4 as they relate to the non-joinder and the alleged alteration of the cause of action. On the issue of non-joinder of the late Chijioke, I do not see any merit in appellant’s submission. It is not in dispute that the late Chijioke Ibe was an employee of the appellant, the appellant did not deny authorising him to drive its vehicle and the accident took place when the late Chijioke Ibe was an employee of the appellant. If I may ask, was the said Chijioke a necessary party to this case? The answer is in the negative. The appellant is vicariously liable for the action of the said Chijioke, and with or without the said Chijioke, the issues in dispute in this case could be determined by the lower court. In the case of lfeanyi-Chukwu v. Soleh Boneh (Nig.) Ltd. (2000) 3 SCNJ 18 at 56, the Supreme Court of Nigeria, when considering similar issue held as follows:
“…It is plain to me that the question of the liability of the servant is purely an evidential issue which can easily be established by cogent and acceptable evidence before the court and it would make no difference whether or not the driver of the offending vehicle is joined in the suit. Indeed, to suggest otherwise would mean that in all motor accident cases, where an offending driver dies in the collision, no action in negligence based on vicarious liability of the owner of the vehicle may ever arise. This, with respect, is not and cannot be the state of the law…
It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal a tort feasors in law. The same is true where a servant commits a tort in the course of his employment. He and his master are in law equally tort feasors as the law in appropriate case imputes the commission of the same tort as wrongful act to both of them jointly. Where several persons are jointly liable, the plaintiff is at liberty to select and sue anyone or any number of them and he can recover his claim in full from those he sued, the issue of contribution among such persons to meet the claim is their internal affair.”
The Supreme Court has said it all. See also Benson v. Otubor (1975) 3 SC 19; (1975) NSCC 49 at 54; Onayemi v. Okunubi (1965) 1 All NLR 362; Peenok Investment Ltd. v. Hotel Presidential (1983) 4 NCLR 122, (1982) 12 SC.1. In view of the above, I hereby resolve issue No.2 in the negative against the appellant. On the issue No.4, without much ado, I do not also find any merit on the submissions of the learned counsel to the appellant. It was not the argument that the statement of claim before the lower court did not disclose a reasonable cause of action.
In addition, it is not the argument of the appellant that the lower court awarded to the plaintiff more than what he claimed. In the cause of action founded in tort, it is not necessary for a party to bring his action under a known head of tort. The duty on the plaintiff is to show that a wrongful act was committed against him by the appellant or his agent, and then it is the duty of the court to consider the evidence adduced before it and determined whether the plaintiff has established his case under any heads of torts. It is not the duty of the court to narrowly examine the plaintiff’s case under a head of tort and to consider the broad purport of facts as described in the statement of claims, and supported by evidence. In the case of Labode v. Otubu (2001) 9 NWLR (Pt. 712) 256; (2001) 3 SCNJ 1 at 25, the Supreme Court of Nigeria, per Onu, J.S.C., stated the legal position thus:-
“…It must be stressed from the onset that the statement of claim did not disclose that the appellant instituted her action in detinue. Neither did she present herself a pledger trying to recover a property pledged by her. What is important is simply the presentation of the factual situation which if substantiated entities, the appellant to a relief against the respondent… For once there is a wrong, there must be a remedy. A wrong must no necessarily be remediable under a known head of tort before it is justiciable…
In the instant case, the Honourable Justices would appear palpably to have erred when they went into narrowly examining the law of detinue rather than considering the broad purport of facts as disclosed in the statement of claim.”
See also on the same point, the case of Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828.
In the instant case, the lower court was right to have broadly considered the case of the respondent as disclosed in the statement of claim and proved by evidence. As a result, I have no alternative than to resolve the issue in the negative against the appellant.
The remaining issue is the consequence of lack of service on the proceedings of 30/9/99 and 20/10/99. The appellant submitted that lack of service rendered the proceedings of those days nullity. While the respondent submitted to the contrary. The importance of service in any proceedings cannot be over emphasised. Any proceedings conducted in a case where service is necessary or required, and no such service is proved, the proceedings would be said to have been conducted without putting the other party on notice.
Legally speaking, the other party would be said to have been denied his right to fair hearing, which rendered the proceedings a nullity. This was the situation in the cases of Leedo Presidential Motel Ltd. v. Bank of the North (supra); and A.C.B. v. Losada (Nig.)Ltd. (1995) 31 LRCN 24. But where such service is not required, the proceeding is valid. In addition, it must be stressed that the duty of the court in issue bordering on fair hearing is to give the other party opportunity to be heard, where such an opportunity has been given and it was not utilised by the parties, they would not be heard to complain of denial of any right of fair hearing – Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; (1987) 2 SCNJ 53.
From the record of proceedings, it is patently clear that the appellant was served against the hearing conducted on 2/8/99, but he was not present. The position as at 2/8/99 was that the appellant was seized of the proceedings of that day, hence, he was deemed fixed with the fact that the case was then adjourned to 30/9/99 for continuation of hearing.
There was then no need for any fresh hearing notice regarding the proceedings of 30/9/99. On the said 30/9/99, the respondent as PW1 concluded his evidence, and PW2, one Moses Owologba, started his testimony. The case was adjourned to 20/10/99, and at page 76 of the record, there was an affidavit of service, showing that on the 15/10/99, another hearing notice was served on the appellant against the proceeding of 20/10/99. On the 20/10/99, the appellant was not in court and no explanation was given for his absence. On the same 20/10/99, the respondent closed its case and it was adjourned to 27/10/99 for addresses.
As I had earlier stated that since the respondent was served against the proceedings of 20/10/99, he was deemed to be party to same, he was therefore not necessary to be served a fresh hearing notice against the proceedings of 27/10/99. The respondent addressed the court on 27/10/99, and the case was adjourned to 22/11/99 for judgment, that was when the appellant now rushed to the court on the 19/11/99 and filed a motion to set aside the proceedings. It is my considered view that the trial court had given the appellant sufficient opportunity to present his defence or to be heard in this case. It is my respectful view that all the opportunities in this world have been given the appellant, but they were wasted by him (you can only take a horse to a river, but you cannot force him to drink water).
The trial court, with respect, cannot compel a party, particularly the appellant, as in this case, to come and defend himself, its only duty is to give him an opportunity to defend himself. In the case of Oyeyipo v. Oyinloye (supra) at 63, the Supreme Court per Karibi Whyte, J.S.C., stated the law as follows:-
“I agree that the rules of natural justice are applicable to hearings of the court, whether sitting in chambers or in open court. Where the rules of natural justice are properly applicable, a violation of the rules will result in the nullification of the proceedings. However, the rules are applicable to a party whose case is properly before the court and not where a party has not satisfied the conditions required for hearing his case, the court will not be competent to hear him. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt. 4) 587. The right to be heard hearing not been served cannot be exercised. In my opinion, there is no question of the breach of a non-existent right. This court has pointed out in Yorwurren v. Modern Signs (Nig.) Ltd. (supra) that a party who has failed or neglect to submit his case for consideration cannot complain of a denial of hearing.”
I completely agree with his lordship and bound by it, that the appellant had failed to submit his case before the lower court for hearing, in spite of all the opportunities given. The contention of the appellant that he resides in Kaduna while the address for service within jurisdiction is in Delta State, and that there was a breakdown in communication cannot hold water. All these are internal arrangement of the appellant. The essence of the rules requiring an address for service within jurisdiction is to ensure a speedy trial of a case and to ensure that parties are served with the court’s processes to the satisfaction of the court. Hence, it is the duty of the appellant to constantly contact the address for service within jurisdiction to ensure that he is present at the hearing, where he cannot appear in person, explanation could be rendered to the court.
In the light of the facts and circumstances of this appeal, I find no merit in the appeal, same is hereby dismissed. The decision of the lower court is unassailable, same is hereby restored and affirmed. I award the sum of three thousand naira (3,000.00) as cost in favour of the respondent.
Appeal dismissed.
Other Citations: (2004)LCN/1574(CA)