3PLR – AMUWAH TRANSPORT (NIG) LTD V. O.A. TRANSPORT (NIG.) LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
AMUWAH TRANSPORT (NIG) LTD
V.
O.A. TRANSPORT (NIG.) LTD
(1998)
COURT OF APPEAL
(KADUNA DIVISION)
3PLR/1998/15 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
UMARU ABDULLAHI;
ATINUKE OMOBONIKE IGE;
IBRAHIM TANKO MUHAMMAD.
REPRESENTATION
J.B. Daudu S.A.N. (with him B. Ajao (Mrs.)) – for the Appellant
J.O. Morohundiya ESQ. – for the Respondent
MAIN ISSUES
CONSTITUTIONAL LAW – Fair hearing
CONSTITUTIONAL LAW – Audi alterem partem
PRACTICE AND PROCEDURE – Service of process
This is an appeal against the judgment of Kaduna State High Court delivered on 22nd November, 1995 in Suit No. KDH/KAD/355/95. The respondent as plaintiff claimed against the defendant as follows:
“(a) An order that the defendant produce the 32, 426 litres of low pour fuel oil it was contracted to transport from Kaduna to Kano which it wrongfully converted to it’s own use.
(b) In the alternative, the defendant should pay the value and penalty on the said product as indicated by National Oil and Chemical Marketing Plc in their letter dated 14/10/94 to the plaintiff = N648, 520.00.
- Loss of earning as a result of the conduct of the defendant N80, 000.00 monthly from August, 1994 to March, 1995 = N640, 000.00.
- General damages for breach of contract and wrongful conversion = N50, 000.00. Total amount claimed N1, 338,520.00 (One million Three hundred and thirty eight thousand five hundred and twenty Naira).”
The defendant/appellant was absent throughout the proceedings. The case was finally heard on 22/11/95. The learned trial judge gave his judgment in favor of plaintiff /respondent as follow:
“(1) The defendant was ordered to return 32,426 litres of low fuel product failing which he shall pay its monetary equivalent. Thus damages was dismissed.
(2) The claims for general damages was dismissed.
(3) A nominal sum of N15, 000.00 general damages was awarded in favor of the plaintiff.”
The defendant/appellant being dissatisfied with the judgment appealed.
{Issue}
The main issue contended in this appeal is that hearing of the case took place in the absence of the defendant without notice to him of the hearing date. The learned counsel has submitted before this court that the principle of Audi alteram partem was not observed by the learned trial judge. He also submitted that section 33(1) of the 1979 Constitution which provided the right to fair hearing had been violated.
MAIN JUDGEMENT
{Held -Summary}
Unanimously allowing the appeal and ordering a re-trial
- Audi alter am parted – Effect of violation of principle
Before a case is decided by a court of trial, each side must be given opportunity of a fair hearing.
To be given this opportunity the court must be satisfied that all the due processes of court have been served on all parties. In the instant case, there was no proof that the defendant was served either with a writ or a hearing notice before the learned trial judge proceeded to hear the case. This is a clear violation of the principle of Audi alteram partem which has done injustice to the case of the defendant/appellant. A fortiori the judgment delivered by the learned trial judge on 22/11/95 is a miscarriage of justice and should be declared a nullity.
{Held – Lead Judgment} Delivered by IGE JCA
This is an appeal against the judgment of Kaduna State High Court delivered on 22nd November, 1995 in Suit No. KDH/KAD/355/95. The respondent as plaintiff claimed against the defendant as follows:
“(a) An order that the defendant produce the 32, 426 litres of low pour fuel oil it was contracted to transport from Kaduna to Kano which it wrongfully converted to it’s own use.
(b) In the alternative, the defendant should pay the value and penalty on the said product as indicated by National Oil and Chemical Marketing Plc in their letter dated 14/10/94 to the plaintiff = N648, 520.00.
- Loss of earning as a result of the conduct of the defendant N80, 000.00 monthly from August, 1994 to March, 1995 = N640, 000.00.
- General damages for breach of contract and wrongful conversion = N50, 000.00. Total amount claimed N1, 338,520.00 (One million Three hundred and thirty eight thousand five hundred and twenty Naira).”
The defendant/appellant was absent throughout the proceedings. The case was finally heard on 22/11/95. The learned trial judge gave his judgment in favor of plaintiff /respondent as follow:
“(1) The defendant was ordered to return 32,426 litres of low fuel product failing which he shall pay its monetary equivalent. Thus damages was dismissed.
(2) The claims for general damages was dismissed.
(3) A nominal sum of N15, 000.00 general damages was awarded in favor of the plaintiff.”
The defendant/appellant being dissatisfied with the judgment has appealed by filing 3 grounds of appeal and formulating 2 issues for determination. The issues read thus:
“1. whether within the printed records of proceedings there were instances when the suit proceeded to hearing in the absence of the defendant without notice on him on those dates and if answered in the affirmative, are the entire proceedings not vitiated as a result of the appellant’s right of fair hearing which he was denied?
2 whether the award of N15, 000 as general damages was proper in law and did not amount to double compensation?
The respondent adopted the same issue formulated by the appellant hence this appeal will be considered with regard to the appellant’s issues.
The main issue contended in this appeal is that hearing of the case took place in the absence of the defendant without notice to him of the hearing date. The learned counsel has submitted before this court that the principle of Audi alteram partem was not observed by the learned trial judge. He also submitted that section 33(1) of the 1979 Constitution which provided the right to fair hearing had been violated. Counsel cited the case of Julius Berger v. Femi (1993) 5 NWLR (Pt.295) 612.
On the question of issuance of hearing notice, the learned senior counsel cited the case of Fetuga v. Barclays bank (1971) I ALL NRL 28 at 30. He therefore argued that the proceeding of the lower court held on 31/10/95 should be declare a nullity.
In answer to this, the respondent’s counsel in brief submitted that the defendant was served with hearing notice by pasting on 3/9/95. The counsel further contented that on 1/11/95 the court was satisfied that the service was effected on the appellant before court proceeded to hear the case. He is of the view that the defendant was properly served in accordance with the rules of the court but has failed and refused to defend the suit. This, he said, was a deliberate attempt to delay the course of justice. The counsel cited the case of Mohammed v. Mustapha (1993) 5 NWLR (Pt.292) at 222.
The gravamen of this appeal is the question of service of hearing notice on the appellant who was the defendant in the lower court. Let us examine what transpired in the court on 31/10/95 when the court proceeded to hear the case against the defendant. The proceedings are short hence I shall reproduce them verbatim:
“Plaintiff’s representative not in court.
J.O. Morohundiya for the plaintiff.
Morohundiya: The defendants are on notice.
The matter is for hearing.
Registrar: we cannot see the proof of service of the writ.
Morohundiya: we ask for a stand down.
Court: case is stood down to later in the day.
(Sgd)
Judge 31/10/95.”
“Representative of plaintiff in court.
Morohundiya: For the plaintiff.
Morohundiya: We could not trace the proof of service. We ask for another date to effect service again on the defendant.
Court: Court adjourned to 15/11/95 for hearing to enable service of both the writ and hearing notice to be effected on the defendant.
(Sgd)
Judge
31/10/95.”
“15/11/95.
Plaintiff in Court.
Morohundiya: The matter was adjourned to today for proof, we are ready to go on. We have one witness in court.
PW1:Christian affirmed S/E? My name is Oyinlola Atanda, l live at A.Y.15B lbrahim Taiwo Road, Kaduna. l am a registered transporter with National Oil and Chemical Marketing Plc. I am the Managing Director of the plaintiff company. I know the defendant. Last year, National oil directed me to lift low pour oil from Kaduna refinery to Kano, so because my truck broke down l went to Amuwah Transport to hire truck SO 9299 GB so as to load the product for me and I paid him N15, 000.00. After loading the product I received the Waybill as to photocopy. After photocopying I gave it back to the defendant so as carry the product to Hotoro in Kano National Oil depot. I received the Waybill from National Oil Kaduna before I photocopied it. I will identify the Waybill. By the Truck Number SO 9298 GB and the quantity of the product, the quantity is 32,426 liters. This is the copy of the Waybill.
Morohundiya: We seek to tender it in evidence.
Court: The photocopy of the Waybill is admitted in evidence and marked Exhibit “1”.
. Signed (Judge)
15/11/95.
The defendant is a transporter with A.P. The driver of the defendant’s vehicle said he went to Kano but they did not off load him immediately so his boss, the Director of the defendant’s company, told him to bring the truck back to Kaduna with the product, since then he deprived me of the product and National oil. He did not discharge the product at the destined place. I went to him on several occasions. Whenever I go to him he told me that until the Political situation is in position. I don’t know that he has discharged the product. I have been going to him because National oil has been disturbing me. He told me he would return the product to me. He did not. National oil then wrote me a letter that they ban me until I bring back that oil or I pay penalty of N20.00 per liter. If I see the letter from National oil I will be able to identify it. It has the Truck Number, addressed to me and the Waybill Number and quantity of the product. It is the letter. Morohundiya: We seek to tender the letter in evidence.
Court: The letter ref.: No SINS/2/308 dated 14/10/94 is admitted in Evidence as Exhibit “2”.
Signed (Judge)
15/11/95.
Exhibits 1 & 2 taken as read. They stopped me from lifting. It has brought me down because every month I get N80, 000.00 to N100, 000.00 as income from National oil. I was stopped because the defendant did not discharge the company’s product. National oil demanding N648, 520.00 from me as shown in Exhibit 2. That is either I return the product or pay this amount. I showed the defendant this letter. He always tell me he will bring back the product or pay me the amount stated by National oil and the damages he has cost me from August last year because he deprived me from earning my monthly means from National oil from August, 1994 to May this year.
I am claiming general damages of N50, 000.00 because he made my business to suffer.
Signed (Judge)
13/11/95.
Morohundiya: that is the end of our case. We wish to summarise our case. The defendants were served all documents relating to this suit. They have refused to either enter appearance or file a statement of defense to controvert the whole averment. It is trite law that any evidence not challenged or controverted is deemed admitted. It is on the basis of this that we urge the court to believe the plaintiff’s evidence. The evidence of the plaintiff is clear. We urge the court to give judgment to the plaintiff in accordance with Order 14 rule 5 of the High Court.
Court: Adjourned to 22/11/95 for judgment.
Signed (Judge)
13/11/95.”
Judgment was later delivered on 22/11/95 by the learned trial judge.
On 31/10/95, the learned trial judge adjourned the case to 15/11/95 for hearing to enable service of both the writ and hearing notice to be effected on the defendant.
On 15/11/95 the counsel for the plaintiff reminded the court that the matter was adjourned to 15/11/95 for proof.
Instead of the learned trial judge to satisfy himself that there had been proof of service of both the writ and hearing notice on the defendant as was ordered by him on 31/10/95, he did nothing of the sort. He simply proceeded to hear the case by taking the evidence of PW1. This in my view is a clear violation of the defendant’s right to fair hearing. Before a case is decided by a court of trial, each side must be given opportunity of a fair hearing.
To be given this opportunity the court must be satisfied that all the due processes of court have been served on all parties. In the instant case, there was no proof that the defendant was served either with a writ or a hearing notice before the learned trial judge proceeded to hear the case. This is a clear violation of the principle of Audi alteram partem which has done injustice to the case of the defendant/appellant. A fortiori the judgment delivered by the learned trial judge on 22/11/95 is a miscarriage of justice and should be declared a nullity. See the cases of Yakubu v. Governor Kogi State (1995) 8 NWLR (Pt.414) 386; and UBN Ltd. V. Nwaokolo (1995) 6 NWLR (Pt.400) 127. I have no hesitation whatsoever in declaring the judgment of the Kaduna State High Court delivered on 22nd day of November, 1995 a nullity. There is no point considering further issues in this appeal having declared the judgment a nullity.
The appeal succeeds and the judgment of the lower court delivered on 22nd day of November, 1995 is hereby set aside and the case is sent back to the High Court of Kaduna State to be heard de novo on merits by another judge.
The appellant is awarded N2, 000.00 costs against the respondent.
Abdullahi and Muhammad. I.T. JJCA both concurred with the lead judgement.
