The appellant and respondent were the defendant and the plaintiffs in the court of first instance respectively. On the 17th December, 1995, Anthony Okeke’s driver, Chijioke Ibe, had been involved in a car accident with the respondent, Petmag Nigeria Limited, and the respondent’s car was wrecked beyond use.

The respondent then filed a suit against the appellant and sought a restoration of the vehicle to its original state; a sum of N2,500 per day be paid to the respondent for loss of use of the vehicle from the 17/12/1995 till the 3/7/1997; and the sum of N2,500 paid per day for the loss of use of the vehicle from the 4/7/1997 until the vehicle would be returned. Something that should be noted is that when the respondent resolved to take the appellant to court, the appellant’s driver, Chijioke Ibe, whom had been the direct party to the action which had brought damages to the respondent. had not been included as a party to the action.


High Court

Name of the High Court: High Court of Delta State, Ogwuashi-Uku.

Name of Judge: I.E. Ogbodu. J.

Date of Judgement: Wednesday, 2nd February, 2000.

Names of Counsel:

  1. Ithenumah, A. Esq. – For the appellant
  2. A.N. Maidoh, Esq. – For the respondent

The appellant filed a statement of defence and provided an address for service within jurisdiction [ fancy name for where the hearing notices would be sent to]. The case was adjourned several times [20/5/1999, 30/6/1999, 12/7/1999, 2/8/1999, 30/9/1999, 20/10/1999, 27/10/1999] to accommodate the hearings of the appellant’s and the respondent’s cases. However, despite the hearing notices sent to the appellant’s address for service within jurisdiction, the appellant did not show up in the court to make his defence.

In the September of 1999, the first and second witnesses for the prosecution stated their evidences consecutively, and the case was adjourned to the 20th October, 1999. two days before the 20/10/12 proceeding, a hearing notice had been served on the appellant, to which there was no response [ the appellant still did not show up in court].

Subsequently, a day for judgement was fixed, and it was to be heard on the 22nd November 1999. Dramatically [ and I am talking Angelina Jolie drama level], the appellant showed up in court. Finally. However, the appellant did not show up in court to say anything like they had not originally intended to make a defence or anything like that; the appellant filed a motion on notice seeking an arrest of the judgements to be delivered on the 22/11/1999; an order setting aside the proceedings of  [20/5/1999, 30/6/1999, 12/7/1999, 2/8/1999, 30/9/1999, 20/10/1999, 27/10/1999] on grounds of circumvention of the right to fair hearing; and an order for the suit to be heard from the beginning so that the appellant be availed of his right to present a defence and to cross examine the respondent’s witness.

The trial court heard the arguments of the application by the appellant and dismissed it. The claims of the deprival of the right to fair hearing could not hold water in light of the several hearing notices that had been filed before the court proceedings. Moving away from the claims of the appellant, the trial court stated that the appellant had failed to state a reasonable reason for being absence from court. In dismissing the application of the appellant, the court held that:

In view of this facts, the defendant has failed to satisfy to 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 judgement on this case.

 The High court delivered its judgement and found that the case of the respondent had been proven, granted the claims of the respondent, and awarded damages in favour of the respondent.

Court of Appeal

Division of the Court of Appeal: Court of Appeal, Benin.

Names of Justices: Muhammad Saifullahi Muntaka-Coomassie, J.C.A. [Presided and Read the leading judgement]; Patrick Ibe Amaizu J.C.A.; Amina Adamu Augie J.C.A.

Appeal No.: CA/B/19/2001

Date of Judgement: Thursday, 29th April, 2004.

Names of Counsel:

  1. Ithenumah, A. Esq. – For the appellant
  2. A.N. Maidoh, Esq. – For the respondent.

The applicant was dissatisfied with the decisions of the lower court. Remember the appellant felt he had been deprived of his right to fair hearing because he had not presented his defence, although he had ample chance to do so. The appellant then appealed against the said rulings, and in his amended notice and grounds of appeal produced three grounds of appeal which were;

  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 the former Bendel State as applicable to Delta State of Nigeria.
  2. The learned trial judge erred in law when re refused to hear the appellant’s motion on notice dated 15th November, 1999 and rushed to deliver his judgement contrary to Order 8 of the High Court [ Civil Procedure] Rules, 1988 of the former Bendel  States 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 the 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]

The appellant then formulated four issues for consideration which were;

  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, Petmag Nigeria Limited, in its brief of argument dated 17/6/2002 also raised four issues for determination thus;

  1. Whether the appellant’s fundamental right to fair hearing was breached by the Trial Court
  2. Whether the non-joinder of Chijioke Ibe, the driver of the appellant as party at the lower court was fatal to the case of the respondent
  3. Whether the 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.

We can see that the appellant was quite adamant that its right to fair hearing was clearly breached. It should be noted that the constitutional guarantee of fair hearing does not envisage a situation where a party to a suit does not present its case in court. That right is definitely guaranteed in the 1999 constitution, but can only be brought up when the party bringing such a complaint an effort to state its case.


  1. On whether the driver of the offending vehicle needed to be joined as party in a motor accident case– It was established by the court that the issues that were raised could be determined with or without the driver. In this case, the driver had died and the appellant was of the opinion that it had harmed the absence of the driver had harmed its case.
  2. On Nature of liability of master vis-à-vis servant for tort of servant– It was confirmed that any principal/master whom commandeered the commission of a crime/tort, and the agent/servant whom had acted under this instruction were equally liable under the law. The crime had to have been one committed wither on instruction of a superior body, or in the course of performing duties under the principal. Also, in an occasion where there happened to be several persons in an issue whom were jointly liable for a misgiving, the plaintiff is at liberty to sue any/ and all of them. The issue of amount of liability between the guilty persons is then an issue to be resolved among themselves.
  3. On Whether wrong must be remediable under known tort to be justiciable– The court stated that a wrong need not fall under a category/subcategory of tort before it is remedied. What is necessary is that a wrong is proven, the damages incurred is substantiated, evidence backing up the claims procured, and the remedy finally given to the party.
  4. On Right to fair hearing– The right to fair hearing is guaranteed virtue of section 36(1) of the 1999 constitution [as amended]. Every person is therefore entitled to being heard before an independent judiciary or tribunal within a reasonable window stipulated by the courts. That right to fair hearing also imposes on the courts the duty to not be weighed down by frivolous complaints by setting down reasonable time phases for the hearings.
  5. On Duty of court in respect of right to fair hearing– It was stated that the court’s duty in safeguarding the right to fair hearing was to properly present an opportunity for the parties to the case to be heard. This does not mean that a party, whom was given ample opportunity and passed on it has a right to complain of a breach of human rights.
  6. On Whether rules of natural justice applicable to hearings of court– It was held that the rules of natural justice were applicable to court hearings, regardless of if it were in chambers or in an open court. It was also held that when these rules are germane, and yet are flouted, the proceedings had to be nullified. The condition accompanying an application of these laws is that the case had been brought properly before the court [ i.e. has satisfied all conditions necessary to filing a case]
  7. On Effect of failure to sere court processes where service is required– It was judged that any proceedings in a case which needed a service and none was proven to have been provided, the proceedings amounted to a nullity as it would be regarded that the party on notice had not been given a chance to make its case, and by implication, his right to fair hearing had been denied. However, any hearing in which a service was not a necessity, the proceedings would be regarded as valid.
  8. On Essence of rules of court which require address for service within jurisdiction– It is very necessary for parties to a suit to be in the know about court’s processes, and that necessitates an address for service within the jurisdiction. The court has to be satisfied that it had indeed sent out all hearing notices to the best of its power. The defendant/recipient then has the duty to regularly check in with whomever is domiciled in the address stated, so that in the event that he could not make a hearing, a proxy could fill in.
  9. On Whether court can compel a party to defend action– It was held that the trial court did not have a right nor an obligation to force party to a case to make its defence.
  10. On Whether appeal against interlocutory decision can be included in appeal against final decision and procedure thereof– Yes. The court agreed that an appeal against such a decision could be included in the appeal against the final decision of the court, as long as the appellant had sought leave of the court, and the leave was granted.
  11. On Whether leave is required to appeal against wrongful admission or rejection of evidence in an appeal against final decision– When appellant appeals against the wrongful admission or rejection of evidence, the appellant need not seek leave of the court as it is not an interlocutory decision. Thus, the appellant would have to include the ground of appeal against the ruling when appealing against the final judgement of the trial court.
  12. On Classification of grounds of appeal as one of law or of mixed law and fact– It was held that the principle underlying the establishment of a ground of appeal as either one of law or one of mixed law and facts, is the essence. When the complaints of error have emanated from a conclusion on undisputed facts, it is a ground of law, However, if from the get go the facts of the issue at hand had not been certifiably valid, or the accuracy of the facts has been questioned, it is one of mixed law and fact.
  13. On Need for leave of court when ground of appeal is of mixed law and fact in appeal against interlocutory decision– When it is certified that a ground raised for appeal is one of mixed law and fact, it is necessary that leave of court is sought and obtained, unless the ground would be regarded as incompetent.

FULL CITATION: Anthony Okeke v. Petmag Nig. Ltd. [2005] 4NWLR [PT915] 245 – 269

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