National Agency For Food And Drugs Administration And Control V. Mr. Eugine S. Onwuka (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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 On 27/11/2004, the Appellant’s Preliminary Objection was withdrawn.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.