IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY THE 22ND DAY OF MARCH, 2013
BEFORE THEIR LORDSHIPS:
IBRAHIM M.M. SAULAWA JUSTICE, COURT OF APPEAL
CHIMA CENTUS NWEZE JUSTICE, COURT OF APPEAL
JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL
CA/L/255/93
BETWEEN
BRITISH AIRWAYS APPELLANTS
MR. CHAS MUNN
AND
OLADAPO AGIDI - RESPONDENT
THE rationale for this is that hearing notice is the only legal means of getting a party to appear in court, Onwuka v Owolewa (2001) 28 WRN 89. Thus, failure to issue and serve hearing notice is a denial of justice. Thus any judgment or order given against a party who was not served with hearing notice is null and void. So held the Court of Appeal, Holden at Lagos in a unanimous leading judgment delivered by his lordship, Chima Centus Nweze (JCA) his learned brothers Ibrahim M. M. Saulawa and Joseph Shagbaor Ikyegh (JJCA), concurring while upholding the Appellants’ appeal.
The Appellants were represented by T. Kola-Balogun (Mrs.) leading A. Olawole (Miss.) while the Respondent was represented by V. Opara and M.T. Oladapo (Miss.)
The facts are as contained in the body of the judgment.
The Plaintiff (now respondent) sued the defendants (now Appellants) jointly and severally at the Federal High Court, Lagos Judicial Division, for the sum of N518, 000:00 (Five Hundred and eighteen thousand Naira) for breach of contract, negligence and loss of profit arising from the said breach. The respondent had entered into a contract of carriage by air of some items with the Defendants/appellants. Seven items were freighted through the first appellant. However, one of the items short landed. Pursuant to the applicable rules, the Plaintiff settled its pleading. This was, accordingly, served on the first defendant/appellant. The first appellant engaged the services of counsel who failed to conduct the case. The second defendant/appellant was not served with the court processes. As such, he did not take part in the proceedings.
The matter went to trial. The respondent called three witnesses. They testified and also tendered exhibits A-F2. At the close of the respondent’s case, the court (hereinafter referred to as the lower court) entered judgment in its favour. Aggrieved, the defendants (now appellants) appealed against the said judgment of the lower court (Coram Daudu J) dated July 23, 2003. They formulated three issues for determination from their eight grounds of appeal.
At the lower court, the respondent’s case was that it ordered computers parts and printers from the United States of America. Seven items were freighted through the first appellant. However, one of the items short landed. The respondent made the case that it was unable to execute any printing job because of the missing item, namely an HP Laser Printer. It, therefore, claimed the cost of the HP Laser Printing which was put at N68, 000. It equally, claimed N5, 000 as damages per thirty weeks, being loss of profit. Finally, it claimed N300, 000 as damages for breach of contract.
As could be gleaned from the record, the first appellant maintained that it engaged the services of counsel who appeared in court once. Learned counsel, thereafter, discontinued his appearance without informing the first appellant. Its case is that the trial was conducted without its participation. It made the further case that there was no evidence that the appellants were served with hearing notice when the date of the judgment was shifted backward from September 27, 1993 to July 23, 1993. Worse still, the second appellant was not even served with any court process at all.
As shown above, the lower court entered judgment in favour of the respondent which proceeded thereafter to levy execution against the appellants. Three cars of the first appellant were attached.
When this appeal came up for hearing on February 7, 2013, learned counsel for the appellants, T. Kola-Balogun (Mrs), leading A. Olawole (Miss), adopted the brief of argument filed on February 21, 2011, although deemed, properly, filed on March 22, 2011. In the said brief, she submitted that the appellants were not given a fair hearing. She explained that no court process was served on the second appellant. Both appellants were, equally, not served with hearing notice at the trial of this matter.
She explained that after the address of counsel on June 2, 1991, the lower court adjourned to July 22, 1993 for judgment, (page 22 of the record). On July 22, 1993, parties were absent and were not represented by counsel. The court observed that the Nigeria Bar Association, Lagos State Branch, had since June 30th 1993 been boycotting the courts. It, therefore, adjourned the matter to September 27, 1993. The representative of the first appellant went to the lower court on that date, September 22, 1993, after the court had adjourned for the day.
She, further, explained that the plaintiff/respondent’s counsel later applied to the court urging it to abridge the time for the delivery of the judgment. The lower court obliged the plaintiff. Accordingly, it cancelled the earlier date of September 27, 1993 and re-fixed the judgment for July 23, 1993. However, the court did not order the issuance of hearing notices for service on the appellants.
Learned counsel for the respondent, V. Opara, leading M.T. Oladapo, equally, adopted and relied on the brief of argument filed on March 23, 2011 He maintained that the lower court, upon being satisfied that the appellants had been served with all the processes in the suit, proceeded to trial and thereafter gave judgment in favour of the respondent. He noted that an appeal court is bound by the record before it and cannot look outside the record, Ogolo v Fubara (2003) FWLR (pt 169) 1285, 1313. He explained that where a party sues two or more people jointly and severally, the non service or ineffectual service on one of the parties would not lead to a defeat of the entire action but would merely lead to an assumption of jurisdiction by the court on only the party that was served with the Originating Process in the suit. In effect, the Claimant, in such a case, was entitled to proceed against the party served and obtain judgment against such a party.
It is not in doubt that the first appellant was, duly, served with all the Originating Processes. The parties are ad idem on this. However, it is not so clear from the record whether the second appellant was ever served with the Originating processes. Even the lower court, repeatedly, conceded this much.
The appellants’ counsel inveighed against this finding. That notwithstanding, the lower court made findings that the two appellants were, duly, served. With respect, this observation overlooked the fact that the integrity and sanctity of court proceedings, including judgments and rulings, are presumed until the contrary is proved.
If the appellants were minded, indeed, to challenge the correctness of the records, they had a duty to swear to an affidavit setting out the facts or part of the proceedings as wrongly stated in the record.
However, this matter is not that simple. On June 3, 1993, the court adjourned to July 22, 1993 for judgment. It did not deliver its judgment as scheduled as the NBA, Lagos State Branch, had boycotted the courts. It would appear that counsel for the plaintiff/respondent applied for the abridgment of the time for the delivery of the judgment. The court obliged, pages 24 and 25 of the record. Hence, the matter, originally, slated for judgment on September 27, 1993, was brought to July 23, 1993. Judgment was on that date.
Although, the attitude of the first appellant to the court processes was, overtly, contumelious, the defendants/appellants have a valid complaint with regard to the non-issuance and service of the hearing notice for the delivery of judgment: a change of date prompted by the application of the respondent’s counsel. The proceedings of July 23, 1993 bear out this complaint.
we, entirely, agree with the appellants’ counsel that the above events of those two days occasioned grave injustice on the appellants. The courts have been, fairly, consistent in their views that service of processes, including hearing notices from day to day is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted, Onwuka v Owolewa (2001) 28 WRN 89; (2001) 7 NWLR (pt 713) 695, 710; Folorunsho v Shaloub (1994) 3 NWLR (pt 333) 413, 430.
The rationale for this is that notice is the only legal means of getting a party to appear in court, Onwuka v Owolewa (Supra1) thus, failure to issue and serve hearing notice is a denial of justice. Thus, any judgment or order given against the party who was not served with hearing notice is null and void, C.A.F.S. Ltd v Mallah (1998) 10 NWLR (pt 569) 16. In the instant case, the judgment appealed against was delivered prematurely before the date it was originally slated for delivery without any notice to the appellants. We agree with the appellants’ counsel that, in the circumstance, the said judgment was irregular and amounted to a denial of the appellants’ right to fair hearing. It is, therefore, a nullity, see, Per Karibi-Whyte JSC in Okafor v AG Anambra and Ors (1991) LPELR-SC. 264/1998, 27-28.
We endorse the submission that the said judgment delivered, when no hearing notice had been served on the appellants, was null and void, per Karibi-Whyte JSC in Okafor v AG Anambra and Ors (1991). We resolve this issue in their favour.
Counsel submitted that though the appellants were absent throughout the trial, hence they could not call evidence, the onus was still on the respondent to prove its case and that onus was not discharged. She argued that, based on the evidence before the court, the respondent did not prove its case on the balance of possibilities.
On this issue, counsel for the respondent cited section 135 (1); 136; 137(1), 92) and (3) of the Evidence Act, CAP E14, Laws of the Federation of Nigeria 2004 (applicable to the proceedings); Ibori v Agbi (2004) 6 NWLR (pt 868) 78, 136 and the maxim equal affirmat non equi negat, incumbit probation. That is, the burden of proof lies on the person who asserts, not on the person who denies. Source
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