EBENEZER ENYI v. PRODECO INTERNATIONAL LIMITED
(2018)LCN/12369(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of February, 2018
CA/PH/119/2016
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“It is trite that the trial Court is better constituted to hear and observe witnesses in Court and as such in a better position to ascribe probative value to the evidence of the witnesses, evaluate the evidence and make findings thereon. See Anyanwu vs. Uzowuaka (2009) 7 MJSC (Pt. 1) 1 at 16 – 17, Para. G-B, 43-44, Para. G-C; Akunyili vs. Ejidike (1996) 5 NWLR Pt. 449 P. 381; Akinloye vs. Eyiyola (1968) NMLR 92 at 93; Dogo vs. State (2001) 3 NWLR Pt. 699, P. 192; R. vs. Ukpong (1961) 1 All NLR 25; Arowolo vs. Olowokere (2011) 18 NWLR Pt. 1278, P 280 at 312; and Onubogu vs. The State (1974) 9 SC. 1. I am of the firm view that the lower Court shied away from its full responsibility of determining the issues as joined in the suit by the parties and thus failed to evaluate and make findings of the evidence placed before it. Having had the singular opportunity to observe the countenance and demeanour of the witnesses while in the witness box, this case is better thrown back to the lower Court for it to conclude its judicial responsibility of evaluating and processing the evidence so received and ascribing the very important probative value to it. I cannot in the circumstances delve into this aspect of evaluation of the witnesses’ evidence. ” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
Before Their Lordships
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
EBENEZER ENYIAppellant(s)
AND
PRODECO INTERNATIONAL LTDRespondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Rivers State (hereinafter to be known and or referred to as the lower/trial Court), coram B. A. Georgewill J. (as he then was) in suit No. PHC/1770/2005 delivered 21st December, 2009.
The appellant before us was the plaintiff at the lower Court and by way of a writ of summons he made the following claims against the defendant who before us is the respondent:
i. N5,000,000.00 being general damages for negligence for failure to exercise its duty of care in ensuring the safety of its equipment particularly its turning machine that severed the finger off the plaintiff’s hand on the 21/8/03.
ii. N10,000,000.00 being general damages for Pain and Suffering and loss of amenities of life which the Plaintiff has and continues to endure as a result of loosing his finger while working on the Defendant’s turning machine on the 21/8/03.
iii. A declaration that the sum of N25,000.00 offered to the Plaintiff as compensation by the Defendant is not adequate or commensurate with the permanent nature of the Plaintiff’s injuries or losses.
With issues joined between the parties, the plaintiff testified as the PW1 for himself while the DW1 and DW2 testified for the defence. Parties in line with the newly introduced High Court of Rivers State (Civil Procedure) Rules, 2006 were ordered by the lower Court to frontload all their processes and file witness’ deposition. The matter proceeded to trial. It was at the point of judgment after addresses had been filed and exchanged that the learned trial Judge suo motu invited counsel on both sides to address him on the import of the omission of the words of swearing at the foot of the claimant’s written statement on oath as it touches on Section 13 of the Oaths Act and its First Schedule thereof. The parties complied and filed their addresses upon which the learned trial Judge in a considered judgment delivered 21st December, 2009, struck out the suit holding that the only written statement of the plaintiff who was his own sole witness, did not substantially comply with the provisions of Section 13 of the Oaths Act and as such incompetent.
Aggrieved by the decision of the trial Court, the appellant came before us on appeal. Consequent upon the leave of this Court granted the appellant on 18th March, 2014 wherein he was allowed 14 days extension of time from that day to file his notice of appeal out of time, the said appellant filed his notice of appeal on 24th March, 2014. See pages 136 – 140 of the record of appeal.
While the appellant in compliance with the rules and practice of this Court filed and served his brief of argument, the respondent did not deem it important to file any brief. The appellant’s brief dated 19th April, 2016, filed 17th October, 2016 but deemed properly filed and served on 27th September, 2017 was settled by U. O. Umo-Udofia, Esq. The said brief was adopted by the appellant at the hearing of the appeal on 7th November, 2017.
The appellant distilled the following 2 issues from their 4 grounds of appeal:
1. Whether the defect in the appellant’s deposition rendered the entire suit incompetent?
2. Whether the procedure adopted by Lower Court to strike out the matter without evaluating the evidence adduced before it was proper?
On issue 1 (one), the learned counsel for the appellant submitted that the learned trial Judge’s heavy reliance on the cases ofN.N.B. Plc. vs. IBW ENT. (NIG.) LTD (1998) 6 NWLR PT. 554, P. 446; LONESTAR DRILLING LTD. vs. TRIVENI ENG. & IND. (1999) 1 NWLR PT. 588; and MARAYA PLASTICS LTD. vs. INLAND BANK PLC. (2002) 7 NWLR PT. 765, 109 caused him to reach his decision per incuriam.
Learned counsel argued that in none of these decisions was the import of Ss. 4(2) and (3) of the Oaths Act, Cap 01 Vol. 12 LFN 2004 taken into consideration. He contended that a written Statement on Oath as is provided for in Order 3 Rule 2(1) (c) of the High Court of Rivers State (Civil Procedure) Rules, 2006 is not defined to be an affidavit or any document in the specie contemplated by the Oaths Act. Learned counsel concluded that non compliance with the provisions of the Oaths Act cannot be fatal especially in the light of the provisions of Order 5 Rule 1 of the High Court of Rivers State (Civil Procedure) Rules, 2006 which according to him cures any defects in processes used in the course of the proceedings.
RESOLUTION OF ISSUE 1 (ONE)
I need to recall that the process under consideration is the appellant’s witness’ statement which the learned trial Judge struck out as being incompetent and which in turn led to the striking out of the suit without considering same on its merit or demerit. In his words, the learned trial Judge had found as follows:
I have closely looked at the claimant’s written statement in this suit and I hold the firm view that it did not comply, even substantially comply with Oaths Act and does not therefore, in my finding, qualifies (sic) as a statement on Oath as required by the rules of this Court to be adopted as evidence in chief by a witness at the trial of a suit. The claimant’s case is therefore unarguable (sic) and incurably defective as the only written statement of the claimant is liable to be struck out and is consequently hereby struck out.
To reach his conclusion, the learned trial Judge relied on the authority of NN Bank vs. IBW Ent. (supra) @ p. 454, paras. G-H, where Rowland, JCA., stated as follows:
It is patently clear from the affidavit in support of the motion paper that it does not comply with the First Schedule of the Oaths Act Cap. 333 of the Laws of the Federation 1990? Since the affidavit in support does not comply with the First Schedule of the Act I am of the view that the affidavit is incompetent. [Emphasis mine]. (See page 132 of the record of appeal).
Following on the trail of NN Bank Plc. vs. IBW Ent. (supra) are Lonestar Drilling Ltd. vs. Triveni Eng. & Ind. (1991) 1 NWLR Pt. 588; and Maraya Plastics Ltd. vs. Inland Bank Plc. (2002) 7 NWLR Pt. 765, p. 109 which all share the common trait of dealing with affidavits that were not in compliance with Section 13 of the Oaths Act and thus incompetent.
One clear distinguishing factor between an affidavit and a written statement on oath is that while the former does not require adoption in Court for same to be relied upon, the latter must be adopted by the witness/maker for reliability to attach to it. In other words, the statement on oath of a witness becomes his evidence-in-chief only when it is adopted in Court by the said witness duly sworn in Court. This is on the strength of such authorities as: Funtua vs. Tijjani (2011) 7 NWLR Pt. 1245) 130; Aregbesola vs. Oyinlola (No. 2) (2011) All FWLR (507) 1292 @ 1413 F – H; Akpokeniovo vs. Agas (2004) 10 NWLR Pt. 881, P. 394; and N.N.S.C. vs. E.S.V (1990) 7 NWLR Pt. 164, P. 526, Para. E.
The learned trial Court in reaching its conclusion had reasoned as follows at page 131 of the record of appeal:
I am of the firm view, therefore, that it is act of swearing to the truth of the statement that makes on a statement an oath and thus a written statement or document lacking the words of swearing is only a piece of paper or a statement simpliciter and not a statement on oath as required by law. See Maraya Plastic vs. Inland Bank Plc. (2002) 7 NWLR Pt. 765 P. 109 at 120.
Indeed to appreciate the features of the written statement of the plaintiff/appellant which was struck out as incompetent by the trial Court, I deem it expedient to reproduce the said process in part and it reads:
WRITTEN STATEMENT OF THE CLAIMANT
I, MR. EBENEZER ENYI, Male, Christian, Civil Engineer and Nigerian Citizen residing at No. 14 Bernard Carr Street, Port Harcourt hereby make Oath and state as follows:
1. I am the Claimant in this suit and I reside at no. 14 Bernard Carr Street Port Harcourt.
6. That I was assigned to work with the Defendant’s turning machine by the head of the Defendant’s welding department on the 21st of August, 2003.
7. That I informed the said head of department that the turning machine given to me appeared to be defective. My observations however were ignored and I was compelled to work with the machine notwithstanding what I had pointed out
24. And I want the Honourable Court to declare that the sum of N25,000.00 is inadequate compensation in the circumstances of this matter.
……………..
DEPONENT
Sworn at the Registry of the
High Court Port Harcourt
This day of .. 2006
Before Me
Commissioner for Oaths.
[Underlining mine for emphasis]. (See pages 9 – 11 of the record of appeal).
Looking at the foregoing, the learned trial Judge had reasoned that notwithstanding that below the statement are the usual characteristics of an affidavit or sworn statement e.g. ‘deponent’, ‘sworn to’, ‘before me’ and ‘commissioner for oaths’ but the statement itself does not contain any attestation that the maker is bound to make the statement truthfully and in good faith; and that there was indeed not even an attempt at swearing at all. Now, I took time to read through the authority of Lonstar Drilling Ltd. vs. Triveni Eng. Ltd. supra and wherein the deponent of the affidavit in the concluding part of its deposition used the words: ‘I depose to this affidavit in good faith’ notwithstanding that the exact words prescribed by the Oaths Act read thus: ‘I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act’.
In its findings this Court at its Benin Division ruled that much as the exact words were not used, but that the deponent complied substantially with the requirement of the Oaths Act.
In the instant scenario I am, with all due respect to the learned trial Judge, convinced that he fell into a grave misconception of the law when he ruled that the omission to add the words of swearing at the foot of the appellant’s written statement robbed the process of the status of a statement on oath. More so where there is no particular or specified format in the law to be used in couching of a statement on oath. Even though the words of swearing are omitted at the foot of the written statement as observed by the learned trial Court, as if it were an affidavit, yet at the opening paragraph of it the deponent had noted thus: ‘I, Mr. Ebenezer Enyi.. hereby make oath and state as follows.’
The word ‘oath’ as defined in the Chambers 21st Century Dictionary, Revised Edition, at page 942 thereof means 1. a solemn promise to tell the truth or be loyal, etc. usually naming God as a witness 3. a swear-word… having sworn to tell the truth, e.g. in a Court of law; attested by oath. Thus, the presence of the words ‘make oath’ albeit at the introductory part of the process, imports the impression of swearing as envisaged by the law. It is therefore immaterial that the words of swearing were not at the foot of the process.
There was nothing on the record to suggest that the adverse party or even the Court at that was misled into believing that it was a process short of the written sworn statement of the appellant; more so as it was clearly stated at the bottom of it that it was sworn to at the Registry of the High Court, Port Harcourt. In compliance with Section 6 of the Oaths Act, supra, the date of the swearing and the Commissioner for Oaths before whom it was sworn were duly stated and both the Commissioner and the deponent signed accordingly.
The failure to insert words of swearing at the end of the written statement of the appellant, if at all that is a requirement, has not to my mind occasioned any miscarriage of justice in the instant case. After all the appellant still swore oath in Court as administered to him by the Clerk of Court and in line with Order 32 Rule 1(3) of the High Court of Rivers State (Civil Procedure) Rules, 2006, before he confirmed and adopted the written statement as his evidence-in-chief and was duly cross examined. Any such omission therefore can at best be seen as a mere irregularity in form. In this vein and as clearly spelt out in Section 4 (2) and (3) of the Oaths Act that:
4 (2) No irregularity in the form in which an oath or affirmation is administered or taken shall?
a. invalidate the performance of official duties; or
b. invalidate proceedings in any Court; or
c. render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
(3) The failure to take an oath or make an affirmation and any irregularity as to the form of oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth.
See also the cases of Uduma vs. Arunsi (2012) 7 NWLR Pt. 1298 P. 55 at 97-98. Para. G-A; and Anatogu vs. Iweka II (1995)8 NWLR Pt. 415, P. 547, where Uwais, JSC. (as he then was) held as follows at page 573:
What then is the consequence of the failure to administer oath or affirmation on a witness before a Court? The answer is given by Section 4 Subsection 3 of the Oaths Act 1963, No. 63 of 1963 which provides: ‘(3) The failure to take an Oath or make an affirmation shall in no case be construed to affect the liability of a witness to state the truth.’
In the case of Solola vs. The State (2005) All FWLR Pt. 269 P. 1751 at 1770; the apex Court took the position that:
By Section 4(3) of the Oaths Act the failure to administer oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice.
Given the foregoing superior authorities, I am at pain picking flaw or hole in the regularity of the appellant’s Written Statement on Oath as a process which ultimately culminated in his evidence-in-chief. Just as failure to administer oath on a witness would not vitiate the proceedings so also would the omission of the words of swearing at the foot of the written statement of the appellant not rob the process of its status as a written statement on oath. As I earlier noted the omission at the worst stance is a mere irregularity which touches on the form as opposed to the substance of the process. In effect issue 1 (one) which is whether the defect in the appellant?s deposition rendered the entire suit incompetent is answered in the negative (NO). The said issue is accordingly resolved in favour of the appellant and against the respondent.
Following on the heel of this is issue nos. 2 (two) which question is whether the procedure adopted by the lower Court to strike out the matter without evaluating the evidence adduced before it was proper?
Flowing from all that I have said above, it is beyond peradventure that the learned trial Judge in the main, went off tangent when he struck out the appellant’s written statement on oath on the premises of non-compliance with the provisions of Section 13 of the Oaths Act and by extension denied himself of the competence to determine the case on merit. The striking out of the suit was most improper. The learned trial Judge erroneously believed that he lacked the competence to adjudicate on the issues as joined by the parties, hence he struck out the suit as being incompetent.
It is trite that the trial Court is better constituted to hear and observe witnesses in Court and as such in a better position to ascribe probative value to the evidence of the witnesses, evaluate the evidence and make findings thereon. See Anyanwu vs. Uzowuaka (2009) 7 MJSC (Pt. 1) 1 at 16 – 17, Para. G-B, 43-44, Para. G-C; Akunyili vs. Ejidike (1996) 5 NWLR Pt. 449 P. 381; Akinloye vs. Eyiyola (1968) NMLR 92 at 93; Dogo vs. State (2001) 3 NWLR Pt. 699, P. 192; R. vs. Ukpong (1961) 1 All NLR 25; Arowolo vs. Olowokere (2011) 18 NWLR Pt. 1278, P 280 at 312; and Onubogu vs. The State (1974) 9 SC. 1.
I am of the firm view that the lower Court shied away from its full responsibility of determining the issues as joined in the suit by the parties and thus failed to evaluate and make findings of the evidence placed before it. Having had the singular opportunity to observe the countenance and demeanour of the witnesses while in the witness box, this case is better thrown back to the lower Court for it to conclude its judicial responsibility of evaluating and processing the evidence so received and ascribing the very important probative value to it. I cannot in the circumstances delve into this aspect of evaluation of the witnesses’ evidence. I am left with no option than to order a retrial of the case. Issue 2 (two) is thus resolved in favour of the appellant and against the respondent.
Since the 2 issues raised for determination of this appeal are resolved in favour of the appellant, it follows that the appeal has merit and is therefore allowed. To this end it shall be the order of this Court and it is so ordered that the case file in suit No. PHC/1770/2005 Between EBENEZER ENYI and PRODECO INTERNATIONAL LTD. be transmitted back to the Chief Judge of High Court of Rivers State for re-assignment to another Judge of the Court to hear and determine same on merit. I make no order for costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother Cordelia Ifeoma Jombo-Ofo JCA gave me the privilege of reading before now the judgment just delivered. I agree with the reasoning and conclusion thereon. I allow the appeal and abide by the consequential orders.
Appearances:
U.O. Umo-Udofia, Esq.For Appellant(s)
T.C. Kienabere, Esq. with him, C.A. Onipabo, Esq.For Respondent(s)
