BRAINS & ANOR V NWAFOR

BRAINS & ANOR V NWAFOR


IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON THURSDAY, 12TH JULY, 2018


Appeal No: CA/A/102/2009
CITATION:

Before Their Lordships:

ABUBAKAR DATTI YAHAYA, JCA

TINUADE AKOMOLAFE-WILSON, JCA

TANI YUSUF HASSAN, JCA


BETWEEN

MR. OLIVETTE BRAINS
JULIUS BERGER PLC

(APPELLANTS)

AND

MR. CHIKE NWAFOR

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Brief of Argument – Effect of failure of the Respondent to file a brief of argument

Whether failure of the respondent to file brief of argument will make the appeal of the appellant to succeed

“The respondent failed to file his brief within the stipulated time allowed by the Rules. The appellants then filed a Motion on the 31st October 2014, for leave to hear the appeal on the appellant’s brief alone, in order to ginger the respondent. He did not respond, and on the 4th of April 2017, this Court granted leave to hear the appeal on the appellants’ brief alone and adjourned the appeal for hearing on 18th September, 2017. The respondent still did not file the brief and the appeal was heard. See Order 19 Rule 10(1) of the Court of Appeal Civil Procedure Rules 2016, and ECHERE Vs. EZIRIKE (2006) 12 NWLR (Pt. 994) 386. So although the respondent has not filed a brief and is deemed not to contest this appeal, it is imperative to consider the appeal on the appellants’ brief to decide whether it will succeed or fail. We therefore proceed to consider the appellants’ brief.”Per YAHAYA, J.C.A. read in context

B. CONSTITUTIONAL LAW
2. Breach of Right to Fair Hearing –

Whether failure to allow a witness adopt his statement on oath where same has been pleaded and frontloaded amounts to breach of fair hearing

“The front-loading of documents by a plaintiff or a defendant, is supported by Order 4 Rule 15 of the FCT High Court Civil Procedure Rules which provides for the plaintiff thus –
“A writ is issued when signed by a Registrar or other officer of Court duly authorized to sign the writ and accompanied by:

(a) a statement of claim;

(b) copies of documents mentioned in the statement of claim to be used in evidence;

(c) witness statement on oath; and

(d) a certificate of pre-action counselling.”

For the defendant, Order 23 rule 2(1) provides –

“Except a Court grants leave to the contrary, a defendant who enters appearance in, and intends to defend an action shall, within 14 days after the serve of the statement of claim and the writ of summons on him, serve a statement of defence on the plaintiff, along with:
(a) copies of documents mentioned in the statement of defence to be used in evidence;

(b) a witness(es) statement on oath,

(c) a certificate of pre-action counseling.”

It is pursuant to Order 23 Rule 2(1) of the FCT High Court Civil Procedure rules, that the appellants filed their statement of defence and two witnesses’ statement on oath.
When the first witness for the appellants entered the box to adopt his statement on oath, the Court, on the objection of the respondent, prevented him from doing so.
Pleadings contain facts of a case, numbered in paragraphs, so that the opposing party would know what case to meet in Court and not to be taken by surprise. The facts must be stated clearly and unequivocally – ODOM Vs. PDP (2015) 6 NWLR (Pt. 1456) 527 and SALAMI Vs. OKE (1987) 4 NWLR (Pt. 63) 1. The parties and the Court are bound by the pleadings.
Where the documents are front-loaded, the opposing party would have the opportunity of knowing the documents by which the case would be proved and so prepare adequately.
If facts relating to a document are pleaded, there is no need or necessity for the document or piece of documentary evidence to be specifically pleaded. Once facts relating to the document are pleaded, the document becomes relevant in the case, and is admissible unless there are other legal impediments to its admissibility. This is because a document referred to in a pleading, becomes part of the deal – STERLING BANK Vs. FALOLA (2015) 5 NWLR (Pt. 1 53) 05 and SALAMI Vs. UNION BANK (2010) LPELR- 8975 (CA). A witness statement on oath is his testimony in Court, only if and when he adopts same. He does this by getting into the box and adopting it as his evidence in-chief – INT’L OPERATIONS LTD Vs. Q-OIL & GAS SERVICES (2015) 1 NWLR (Pt. 1440) 244. He is then cross-examined. Before the adoption, the witness statement on oath cannot be regarded as his evidence in the case in Court.

In the instant appeal, the first witness of the appellants was estopped from adopting his witness statement on oath, on the flimsy reasoning that his name had not been front-loaded, and some of the facts contained in his statement on oath, had not been pleaded. The trial Court had no right to stop a witness from adopting his statement on oath at that stage. Without giving the witness an opportunity to adopt his statement on oath, the trial Court had denied the appellants their right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution as amended. The Court ought to have allowed him to do so and if any fact had not been pleaded in the statement of defence, the Court could strike out the offending paragraph in the witness statement on oath or discountenance same. But to refuse to allow him to adopt the statement was not only most unfair, it was a slavish adherence to rules which had caused gross miscarriage of justice. This is because the entire evidence per the first witness (Ifeanyi Ekwueme) had been thrown away even though it was not alleged that it was the entire witness statement on oath that was not backed by pleading of facts in the statement of defence. It was a travesty of justice especially taking into consideration, the pith and kin of the defence – that the amount claimed had been fully paid. The slavish adherence to rules had resulted in a denial of justice – MARK ODUAH Vs. F.R.N (2012) 11 NWLR (Pt. 1310) 76 at 104.

If the name of Ifeanyi Ekwueme, had not been front loaded or pleaded, I do not see how this could stop him from adopting his statement on oath. His statement on oath had been frontloaded. The statement of defence averred at paragraph 4 that: “These defendants contend that the said sum of N30,000, paid by the 2nd Defendant’s insurer, Messrs Equity Indemnity Insurance Company Plc to the plaintiff was so paid and collected by the Plaintiff in full and final settlement of whatever claim the Plaintiff might be entitled to by reason of the accident and these Defendants and discharged from all liabilities arising from the accident.”

How and when the N30,000 was paid to the respondent is evidence which was not required to be pleaded. Again, the person who was present when the said sum was collected is a matter of evidence, not pleadings. Therefore any person who was present when the money was paid and collected, and even signed as a witness, is a relevant person and even if his name was not specifically mentioned, could give evidence. In his witness statement on oath, Ifeanyi Ekwueme deposed that –
(2) “On the 18th of March, 2005, I, in the company of the said Mr. Chike Nwafor visited the office of Messrs Equity Indemnity Insurance Co. Ltd., the insurer of Julius Berger Nigeria Plc for the settlement of the claim which arose from the accident.
(3) The Insurer agreed to pay the sum of N41,000 for the damages to the motorcycle and the sum of N30,000 for the injury sustained by Mr. Chike Nwafor.
(4) Mr. Chike Nwafor collected the sum of N30,000 on the said 18th of March, 2006 in full and final settlement of his claim which arose from the injury he sustained from the accident.
(5) I know that Mr. Abdul-Wasiu Ajibade, a deputy manager in the office of the insurer brought out a discharge voucher for the plaintiff to sign and for me to witness…”
It is clear that this witness was deposing to what he did, where and how, in respect of the claim of the respondent and the alleged settlement by the appellants. That evidence was not to be pleaded. The facts had been pleaded.
In view of this, the appellants were denied their right to present their defence without any valid reason and their right to fair hearing had been seriously jeopardised. The proceedings could not have been fair. The lone issue is thus answered in favour of the appellants.
This appeal has merit and it is allowed. The proceedings of the trial Court are set aside from when Ifeanyi Ekwueme was denied the right to adopt his witness statement on oath. In view of this, this appeal is remitted back to the Chief Judge of the FCT High Court for hearing de novo, before another judge. No Order as to costs.”Per YAHAYA, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY YAHAYA, J.C.A.


This is an appeal against the Ruling of the High Court of the FCT Abuja, delivered by Hon. Justice Dodo on 27th June, 2007.

The respondent as plaintiff, took out of the High Court of the FCT Abuja, a writ of summons claiming against the appellants as defendants, the sum of N10 million as special and general damages for the injury he sustained as a result of an accident which occurred between the respondent’s motorcycle and the 2nd appellant’s vehicle on 13th March 2005, along Jabi/Airport Road, Abuja. The 2nd appellant’s vehicle was driven by its driver, the 1st appellant.

On being served with the Writ and statement of claim, the appellants filed a statement of defence in which it averred that the respondent had been fully settled and had collected compensation from Messrs Equity Indemnity Insurance Co. on behalf of the appellants and so had no subsisting cause of action.

At the trial, the respondent adopted his witness statement on oath and was cross-examined, The matter was adjourned for defence. On the adjourned date, the appellants’ first witness entered the box. The counsel for the respondent then immediately objected to his giving evidence on the grounds that the witness was unknown to the pleadings, in that his name and statement on oath are strange to the pleading. Learned counsel for the appellants replied, contending that the name of the witness was evidence, which like other evidence, need not to have been pleaded. Only facts are to be pleaded. In his Ruling, delivered on the 23rd of June 2007, the learned trial judge upheld the objection by deciding that the first witness of the appellants (Mr. Ifeanyi Ekwueme) could not adopt his witness statement on oath. Hence this appeal.

The appellants filed their brief on 22nd October 2012 but was deemed filed on 30th June 2014. In it, their learned counsel Mr. Hanafi, distilled one Issue for determination, which is –

Whether considering the statement of defence of the defendants and the witness statement on oath of Mr. Ifeanyi Ekwueme, the learned trial judge was right when he refused to allow Mr. Ifeanyi Ekwueme to adopt his witness statement on oath.

The respondent failed to file his brief within the stipulated time allowed by the Rules. The appellants then filed a Motion on the 31st October 2014, for leave to hear the appeal on the appellant’s brief alone, in order to ginger the respondent. He did not respond, and on the 4th of April 2017, this Court granted leave to hear the appeal on the appellants’ brief alone and adjourned the appeal for hearing on 18th September, 2017. The respondent still did not file the brief and the appeal was heard. See Order 19 Rule 10(1) of the Court of Appeal Civil Procedure Rules 2016, and ECHERE Vs. EZIRIKE (2006) 12 NWLR (Pt. 994) 386. So although the respondent has not filed a brief and is deemed not to contest this appeal, it is imperative to consider the appeal on the appellants’ brief to decide whether it will succeed or fail. We therefore proceed to consider the appellants’ brief.

In arguing the lone issue for determination, learned counsel for the appellants referred to Order 4 Rule 15 and Order 23 Rule 2(1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004. On the position of the learned trial judge that the first appellants’ witness Ifeanyi Ekwueme could not testify on the ground that some facts contained in the witness statement on oath were not pleaded, counsel referred to paragraphs 3 – 5 of the statement of defence at pages 21-22 of the record and the witness statement on oath of Ifeanyi Ekwueme at pages 60 – 61 of the record. He then submitted that the purpose of pleading is to give notice to the other party of the case he is to meet but that only facts should be pleaded, not evidence – Order 23 Rule 4(4) of the FCT High Court Civil Procedure Rules. He contended that the whole defence of the appellants was based on the fact that the claim had been settled and that accounts for paragraphs 1 and 2 of Ifeanyi Ekwueme’s statement on oath, which he argued, are not matters of evidence but introductory facts OKAFOR Vs. UNION BANK OF NIGERIA (2000) 3 NWLR (Pt. 647) 42 at 47 – 48. They are facts introducing a witness, enabling the Court to determine the weight to be attached to the evidence by the Court and are not to be pleaded – OKAFOR VS. UNION BANK (SUPRA) at 49.

Counsel submitted that as regards paragraph 4 of the witness statement on oath, the facts relating to same had been pleaded.

On paragraphs 5, 6, 7 and 9, counsel argued that they relate to execution of the documents or how a document was executed and so need not be pleaded – BAWA Vs. BALARABE (1999) NWLR (Pt. 605) 61 at 72.

Learned counsel submitted that the only paragraphs that may likely offend the rules of pleadings, are some portion of paragraphs 3 and 8 of the witness statement on oath on the evidence of payment of M1,000 for repairs of the motorcycle in question. He argued that the trial judge could always discountenance them GEORGE Vs. DOMINION FLOUR MILLS LTD (1963) ALL NLR 70 at 76.

On the position of the trial Court that since the name of Ifeanyi Ekwueme was not mentioned in the statement of defence, he could not adopt his statement on oath, learned counsel argued that there is no rule of pleadings that requires this. By virtue of paragraphs 4 and 5 of the statement of defence he argued, the evidence of every person who can testify as to where, when and how the settlement was effected, is relevant and the appellant can call same. So Ifeanyi Ekwueme, who accompanied the respondent to the place where the settlement was effected, is most relevant. He urged us to allow the appeal.

The front-loading of documents by a plaintiff or a defendant, is supported by Order 4 Rule 15 of the FCT High Court Civil Procedure Rules which provides for the plaintiff thus –

“A writ is issued when signed by a Registrar or other officer of Court duly authorized to sign the writ and accompanied by:

(a) a statement of claim;

(b) copies of documents mentioned in the statement of claim to be used in evidence;
(c) witness statement on oath; and

(d) a certificate of pre-action counselling.”

For the defendant, Order 23 rule 2(1) provides –

“Except a Court grants leave to the contrary, a defendant who enters appearance in, and intends to defend an action shall, within 14 days after the serve of the statement of claim and the writ of summons on him, serve a statement of defence on the plaintiff, along with:

(a) copies of documents mentioned in the statement of defence to be used in evidence;
(b) a witness(es) statement on oath,

(c) a certificate of pre-action counseling.”

It is pursuant to Order 23 Rule 2(1) of the FCT High Court Civil Procedure rules, that the appellants filed their statement of defence and two witnesses’ statement on oath.

When the first witness for the appellants entered the box to adopt his statement on oath, the Court, on the objection of the respondent, prevented him from doing so.

Pleadings contain facts of a case, numbered in paragraphs, so that the opposing party would know what case to meet in Court and not to be taken by surprise. The facts must be stated clearly and unequivocally – ODOM Vs. PDP (2015) 6 NWLR (Pt. 1456) 527 and SALAMI Vs. OKE (1987) 4 NWLR (Pt. 63) 1. The parties and the Court are bound by the pleadings.

Where the documents are front-loaded, the opposing party would have the opportunity of knowing the documents by which the case would be proved and so prepare adequately.

If facts relating to a document are pleaded, there is no need or necessity for the document or piece of documentary evidence to be specifically pleaded. Once facts relating to the document are pleaded, the document becomes relevant in the case, and is admissible unless there are other legal impediments to its admissibility. This is because a document referred to in a pleading, becomes part of the deal – STERLING BANK Vs. FALOLA (2015) 5 NWLR (Pt. 1453) 405 and SALAMI Vs. UNION BANK (2010) LPELR- 8975 (CA).

A witness statement on oath is his testimony in Court, only if and when he adopts same. He does this by getting into the box and adopting it as his evidence in-chief – INT’L OPERATIONS LTD Vs. Q-OIL & GAS SERVICES (2015) 1 NWLR (Pt. 1440) 244. He is then cross-examined. Before the adoption, the witness statement on oath cannot be regarded as his evidence in the case in Court.

In the instant appeal, the first witness of the appellants was estopped from adopting his witness statement on oath, on the flimsy reasoning that his name had not been front-loaded, and some of the facts contained in his statement on oath, had not been pleaded. The trial Court had no right to stop a witness from adopting his statement on oath at that stage. Without giving the witness an opportunity to adopt his statement on oath, the trial Court had denied the appellants their right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution as amended. The Court ought to have allowed him to do so and if any fact had not been pleaded in the statement of defence, the Court could strike out the offending paragraph in the witness statement on oath or discountenance same. But to refuse to allow him to adopt the statement was not only most unfair, it was a slavish adherence to rules which had caused gross miscarriage of justice. This is because the entire evidence per the first witness (Ifeanyi Ekwueme) had been thrown away even though it was not alleged that it was the entire witness statement on oath that was not backed by pleading of facts in the statement of defence. It was a travesty of justice especially taking into consideration, the pith and kin of the defence – that the amount claimed had been fully paid. The slavish adherence to rules had resulted in a denial of justice – MARK ODUAH Vs. F.R.N (2012) 11 NWLR (Pt. 1310) 76 at 104.

If the name of Ifeanyi Ekwueme, had not been front loaded or pleaded, I do not see how this could stop him from adopting his statement on oath. His statement on oath had been frontloaded. The statement of defence averred at paragraph 4 that:

“These defendants contend that the said sum of N30,000, paid by the 2nd Defendant’s insurer, Messrs Equity Indemnity Insurance Company Plc to the plaintiff was so paid and collected by the Plaintiff in full and final settlement of whatever claim the Plaintiff might be entitled to by reason of the accident and these Defendants and discharged from all liabilities arising from the accident.”

How and when the N30,000 was paid to the respondent is evidence which was not required to be pleaded. Again, the person who was present when the said sum was collected is a matter of evidence, not pleadings. Therefore any person who was present when the money was paid and collected, and even signed as a witness, is a relevant person and even if his name was not specifically mentioned, could give evidence. In his witness statement on oath, Ifeanyi Ekwueme deposed that –

(2) “On the 18th of March, 2005, I, in the company of the said Mr. Chike Nwafor visited the office of Messrs Equity Indemnity Insurance Co. Ltd., the insurer of Julius Berger Nigeria Plc for the settlement of the claim which arose from the accident.

(3) The Insurer agreed to pay the sum of N41,000 for the damages to the motorcycle and the sum of N30,000 for the injury sustained by Mr. Chike Nwafor.

(4) Mr. Chike Nwafor collected the sum of N30,000 on the said 18th of March, 2006 in full and final settlement of his claim which arose from the injury he sustained from the accident.

(5) I know that Mr. Abdul-Wasiu Ajibade, a deputy manager in the office of the insurer brought out a discharge voucher for the plaintiff to sign and for me to witness…”

It is clear that this witness was deposing to what he did, where and how, in respect of the claim of the respondent and the alleged settlement by the appellants. That evidence was not to be pleaded. The facts had been pleaded.

In view of this, the appellants were denied their right to present their defence without any valid reason and their right to fair hearing had been seriously jeopardised. The proceedings could not have been fair. The lone issue is thus answered in favour of the appellants.

This appeal has merit and it is allowed. The proceedings of the trial Court are set aside from when Ifeanyi Ekwueme was denied the right to adopt his witness statement on oath. In view of this, this appeal is remitted back to the Chief Judge of the FCT High Court for hearing de novo, before another judge. No Order as to costs.

AKOMOLAFE-WILSON, J.C.A.

I read in draft the judgment just delivered by my learned brother, A. D. Yahaya, JCA. I am in agreement with the reasoning and conclusion and orders reached therein.

HASSAN, J.C.A

I had the privilege of reading the lead judgment of my learned brother Abubakar Datti Yahaya, JCA.

I agree with the reasoning allowing the appeal. The appeal is also allowed by me.

No order as to costs.

Appearances:

M. I. Hanafi with him, Kadiri Yusuf For Appellant(s)

Respondent unrepresented. For Respondent(s)