Gitto Costruzioni Generali Nigeria Limited & Anor V. Umoh Effiong Etuk & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED, LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is from the decision of the Akwa Ibom State High Court delivered on the 27/1/10 in suit No. HU/324/2005 in which judgment was entered in favour of the Respondents. The Amended notice of appeal filed on 23/2/12 with the leave of court, contains seven (7) grounds of appeal out of which six (6) issues were distilled by the learned counsel for the Appellants in the Appellants’ brief filed on 12/05/11 but deemed on the 23/2/12. The issues are as follows:

“1. Whether the Appellants were denied fair hearing thereby occasioning a miscarriage of justice when the lower court denied them the opportunity of presenting their defence by failing to order for hearing notices to be served on the Appellants following the failure of their counsel to appear on the 4th of June 2009, the 21st of October 2009, the 5th of November 2009, and the 11th of January 2010 (Ground 1 of the notice of appeal).

2. Whether there was a denial of fair hearing occasioning a miscarriage of justice when the learned trial judge failed to call for final addresses before delivering judgment? (Ground 2 of the Notice of Appeal).
3. Whether the Respondents proved actionable nuisance and/or negligence, and whether the Lower Court was right in holding the Appellants liable in actionable nuisance and/or negligence, when it held that “it is declared that the acts of the defendable by maliciously clearing away in the process of their road construction along Abak Road, Uyo on 17th September, the sand mound erected by the Plaintiffs along their school fence and the lack of expert measures to prevent flooding of the Plaintiffs school, library, computers and other equipments during the said road constructions amounted to actionable nuisance and/or negligence on the part of the defendants.” (Ground 3 of the Notice of Appeal).
4. Whether the lower court was right in holding the Appellants jointly liable for the acts of the 2nd Appellant. (Ground 4 of the Notice of Appeal).
5. Whether the learned trial judge admitted and acted on inadmissible evidence thereby occasioning a miscarriage of justice when he admitted the evidence of PWI that “THE FLOOD WATER THAT NORMALLY RAN ALONG ABAK ROAD, UYO BROUGHT DOWN THE UNPROTECTED SCHOOL FENCE AND HAD A FIELD DAY IN TIIE SCHOOL DESTROYING ALMOST EVERYTHING IN THE SCHOOL COMPOUND? (Ground 5 of the Notice of Appeal).
6. Whether the lower court was right in holding the Appellants liable for special damages when there was no proof of special damages by the Respondent.”

These issues were adopted with a minor modification in the number by the learned counsel for the Respondents in the Respondents’ brief filed on the 10/8/12, but deemed on the 3/12/12.

The facts of the case before the High Court leading to the appeal were that the 2nd Appellant said to be an employee of the 1st Appellant was alleged to have cleared sand mould erected by the Respondents to protect their school fence which led to the flooding of the school premises, causing damages, special and general, to them. The Respondents sued the Appellants before the High Court for nuisance and negligence as set out in both the writ of summons and the statement of claim. In the course of trial, the counsel for the Appellants stopped appearing in the case, was absent when the case was eventually adjourned for judgment without an order for final address and when judgment was entered in favour of the Respondents.

I now turn to the issues for determination and the submissions by learned counsel on them. I intend to use the Appellants’ issues in deciding the appeal.

The learned counsel for the Appellants had argued his issues 1 and 2 together and said that the Appellants were denied fair hearing by the High Court because it failed to order for hearing notices to be served on their counsel on the dates of the trial when he was not in court. According to him, it is a mandatory requirement of the law that where a party is absent from court, that court should order hearing notice to be served on him so as to inform him of the progress of the case and afford him the opportunity of presenting his case.

He placed reliance on Faladu v Kwoi (2003) 9 NWLR (826) 657 and then cited dates of hearing of the case on which counsel for the Appellant was absent and that no hearing notices were served on him, including when the Appellants’ case was closed by the High Court and the matter adjourned for judgment without calling for final addresses from the parties. It was his submission that whether or not a party called evidence in a case, he had a right to final address as provided for in the constitution and unless he waives or failed to utilize it, a court cannot proceed to deliver judgment without the final addresses of the parties.

He said it was wrong for the High Court to have foreclosed the Appellants from the final address on the ground that they did not defend the action against them as borne out at page 144 of the record of appeal. Learned counsel said even when the judgment could not be delivered on the adjourned date fixed by the High Court due to the strike action of the Judiciary Staff Union of Nigeria, no hearing notice was served on the Appellants’ counsel of the date when it was eventually delivered. It was contention of counsel that the non service of the hearing notice had deprived the Appellants of their right to present their defence, cross examine the Respondent’s witness or make a final address before judgment was delivered by the High Court and thereby denied a fair hearing.

The cases of Mbadimuju v Ezuka (1994) 6 NWLR (3 64) 535 at 553 and Adigun v Attorney-General, Oyo State (1987) 1 NWLR (53) 678 were cited on the effect of failure to serve hearing notice on a party as well as the cases of Akabogu v Akabogu (2003) 9 NWLR (826) 458; Salami v Odogun (1991) 2 NWLR (173) 291 and Ayisa v Akanji (1995) 7 NWLR (406) 129 at 144, on the effect of failure by a trial court to allow parties to deliver final addresses at the close of evidence.

It was the further submission of counsel that the failure to serve hearing notices and call for final addresses before judgment, vitiated the proceedings of the High Court for denial of fair hearing and he urged he urged us to so declare.

The submissions by the learned counsel for the Appellant on his issues 3 &, 4 are that the Respondent did not prove the tort of negligence which has 3 conditions that must be satisfied together as follows:-

a) that the defendant owed a duty of care to the plaintiff

b) that the duty of care was breached;