ACCESS BANK v. MODAKOL (NIG) LTD & ANOR
(2022)LCN/15975(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/L/309/2018
Before Our Lordships:
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
ACCESS BANK PLC APPELANT(S)
And
1. MODAKOL NIGERIA LIMITED 2. ALHAJI M.A. OLANREWAJU RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU ON BEHALF OF PARTIES BEFORE IT
It was the Court that raised the issue suo motu, and having so raised, the law expects the Court to afford the parties a hearing before basing its decision on the new issue raised by it. This position of the law is trite. See Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 at 59; Olusanya v. Olusanya (1983) 1 SCNLR (Pt.136) 136; Eholor v. Osayande (1992) LPELR-142 (SC); University of Calabar v. Essien (1996) LPELR-188 (SC); Ifabiyi v. Adeniyi (2000) 5 SC 31 at 42; Agbeje & Ors v. Ajibola & Ors (2002) LPELR-237 (SC); The State vs. Oladimeji (2003) LPELR-3225 (SC); Mojekwu v. Iwuchukwu (2004) LPELR-1903 (SC); Kraus Thompson Organisation v. University of Calabar (2004) LPELR-1715 (SC); Bhojsons Plc v. Daniel-Kalio (2006) LPELR-777 (SC); Shasi v. Smith (2009) LPELR-3039 (SC); Leaders & Company Ltd v. Bamaiyi (2010) LPELR-1771 (SC); Victino Fixed Odds Ltd v. Ojo (2010) LPELR-3462 (SC); Uwazuruonye v. The Governor of Imo State (2012) LPELR-20604 (SC); Jev v. Iyortyom & Ors (2014) 23000 (SC); Olaolu v. F.R.N. (2015) LPELR-24778 (SC); Ominiyi v. Alabi (2015) LPELR-24399 (SC); Odedo v. PDP & Ors (2015) LPELR-24738 (SC); The State v. Kapine & Anor (2019) LPELR-49511 (SC); Idachaba v. The University of Agriculture, Makurdi & Ors (2021) LPELR-53081 (SC). PER SIRAJO, JC.A.
THE REQUIREMENT OF THE COURT IN THE DETERMINATION OF DISPUTES BETWEEN PARTIES
In State v. Oladimeji (supra), Katsina-Alu, JSC (as he then was, later, CJN) of blessed memory, had this to say at page 8 of the report:
“It is now trite law that in the determination of disputes between parties, the Court should confine itself on the issues raised by the parties. The Court is not competent to suo motu, make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. Where, however, the Court raises an issue suo motu and the issue goes to the root of the case, the parties must be given an opportunity to address the Court on the point. See Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 298; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda v. Akanmi (1974) 3 SC 109; Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170.”
On his part, Adekeye, JSC, stated the position in the case of Leaders & Company Ltd v. Bamaiyi (supra), in the following words:
“It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides, however clear the issue may appear to be. Where a Court raised an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter, particularly from the party that may be adversely affected as a result of the issue raised. Where a Court raised an issue without giving counsel the opportunity to address on it, the Court would clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversary system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised. Araka v. Ejeagwu (2000) 15 NWLR pt. 692, pg. 684 Olatunji v. Adisa (1995) 2 NWLR pt. 376, pg. 167 Oro v. Falade (1995) 5 NWLR pt. 395 pg. 385 Oje v. Babalola (1991) 4 NWLR pt. 185 pg. 267 Adeniran v. Alao (1992) 2 NWLR pt. 223, pg. 350 Adejumo v. David Hughes & Co Ltd (1989) 5 NWLR pt.120 pg. 146 Yusuff v. N.T.C. Ltd (1977) 6 SC 39 Maiyaki v. Maidoya (1988) 3 NWLR pt. 81, pg.226.”
In Agbeje & Ors v. Ajibola (supra), Iguh, JSC, postulated thus:
“In this regard, it ought to be observed that it is an elementary principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties and it is not competent for the Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for Works Benue State and Another v. Devcon Development Consultants Ltd. and Another (1988) 3 NWLR (Pt. 83) 407; Ochonma v. Ashirim Unosi (1965) NMLR 321; Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC.57; Adeniji and others v. Adeniji and others (1972) 1 All NLR (Pt. 1) 278.” PER SIRAJO, JC.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): This appeal questions the propriety of the judgment of the Federal High Court sitting in Lagos, (referred hereinafter as the lower Court), in Suit No. FHC/L/CS/15/2009 delivered on 16/02/2018. The Appellant and the Respondents were the Defendant and Plaintiffs/Claimants respectively before the lower Court.
The facts leading to the case now on appeal can be stated in sketchy form, as follows: As customer of the Appellant, the 1st Respondent, whose Chairman and Chief Executive Officer is the 2nd Respondent, obtained from the Appellant in February, 2001, the sum of Ten Million Naira (N10,000,000.00) overdraft facility to beef up its working capital and Forty-Eight Million Naira (N48,000,000.00) Import Finance Facility (IFF) for the importation of iron rods from Ukraine. The Appellant opened Letters of Credit (LC) on behalf of the 1st Respondent in favour of the beneficiary. The parties agreed that the repayment of the Import Finance Facility was to be from the proceeds of sale of the imported iron rods. Along the line, the supplier on whose favour the Letters of Credit was opened could not be paid and therefore refused to ship the goods to the 1st Respondent. The parties renegotiated, and another LC was opened for the sum of N60,000,000.00 in favour of M.I.T. Trade Ltd. This time around the payment was received and the supplier shipped the iron rods to the 1st Respondent. The iron rods were kept in the Respondents’ Warehouse as agreed by the parties, and sales commenced. Soon thereafter, disagreement ensued between the Appellant and the Respondents concerning the storage and sale of the iron rods. The Appellant moved the remaining iron rods to another Warehouse and sold them off without rendering account to the Respondents despite their demands for that. The Appellant subsequently informed the Respondents that the 1st Respondent’s Account after the consolidation of the Overdraft and the IFF accounts, was in deficit of about N45,582,000.00 as at 1st August, 2004. On 26/10/2004, the Appellant served a demand letter on the Respondents and another letter informing the Respondents of the sale of the 2nd Respondent’s property which was used as security for the loan, known as No. 70, Alhaji Raimi Igbaja Street, Coker Village, Orlie Iganmu, Lagos. In reaction to the letters from the Appellant, the Respondents took out a Writ from the Federal High Court wherein they claimed the reliefs set out below:
“(i) A declaration that the 1st Plaintiff is not indebted to the Defendant in the alleged sum of N45,745,344 or any sum of money at all;
(ii) A declaration that the Defendant has failed to manage the 1st Plaintiff’s account properly or in accordance with acceptable banking standards:
(iii) A declaration that Defendant unilaterally and contrary to the agreement between the parties altered and or varied the agreed interest rate for the facility;
(iv) An order directing a reputable firm of Charted Accountants to audit the 1st Plaintiff’s account with the Defendant;
(v) An order of perpetual injunction restraining the Defendant from selling disposing alienating or in any way dealing with the 2nd Plaintiff’s property known as No. 70, Alhaji Raimi Igbaja Street, Coker village, Orile Iganmu Lagos, Lagos State and registered as No. 21 at page 21 in volume 19991AE of the Register of Deeds kept at the Lagos State Lands Registry Alausa Ikeja and/or An order setting aside any purported sale of the said property;
(vi) A declaration that the personal guarantee procured from the 2nd Plaintiff as security for the Import Finance Facility is irregular, null and void and is therefore unenforceable;
(vii) An order of injunction restraining the Defendant from further accruing interest on the 1st Plaintiff’s account:
(viii) General Damages in the sum of:-
(a) N20,000.000.00 (Twenty Million Naira) being damages for loss of business, good will caused by the Defendant to the Plaintiffs:
(b) The sum of N5,000.000.00 (Five Million Naira) as damages for unlawful detention caused by the Defendant’s refusal to release the goods to those who had pre-paid for same.
(ix) Special Damages as follows:
(a) N110,000.00 (One Hundred and Ten Thousand Naira) being the warehousing cost for the 1st batch of the goods incurred by the Defendant and deducted from the Plaintiffs’ account by the Defendant, plus accruing interest on the said sum at the rate of 18% (eighteen per cent) per annum from 1st August 2002 to 7th January 2004 and thereafter till this Honourable Court delivers judgment in this suit:
(b) N60,000.00 (Sixty Thousand Naira) being the amount paid to the workmen employed by the Defendant and deducted from the Plaintiff’s account plus accruing interest on the said sum at the rate of 18% per annum from 1st August 2002 to 7th January 2004 and thereafter till this Honourable Court delivers judgment in this suit:
(c) N38,000.000.00 (Thirty-Eight Million Naira) being the Customs duties and other freight charges paid by the Defendant to clear the goods from the Port plus accruing interest on the said sum at the rate of 18% (Eighteen per cent) per annum from 1st August 2002 to 7th January 2004 and thereafter till this Honourable Court delivers judgment in this suit:
(d) N19,000.000.00 (Nineteen Million Naira) being the 2nd Plaintiff’s contribution to the LC Facility plus accruing interest at the rate of 18% (Eighteen per cent) per annum from 1st August 2002 to 7th January 2004 and thereafter till this Honourable Court delivers judgment in this suit:
(e) N130,000.00 (One Hundred and Thirty Thousand Naira) being the cost of warehousing the 2nd consignment plus accruing interest on the said sum at the rate of 18% (Eighteen per cent) per annum from 1st August 2002 to 7th January 2004 and thereafter till this Honourable Court delivers judgment in this suit:
(X) Cost of this suit.”
The Appellant faulted the Respondents’ claim and asserted that it exercised its power of sale over the 2nd Respondent’s property after the 1st Respondent failed to heed its several demands for payment of the outstanding facility in the sum of N47,092,930.30 as at 30/08/2004. The Appellant counter claimed the sum of N20,204,797.65 being the unpaid amount outstanding from the N90,000,000.00 Import Finance Facility after the sale of the 2nd Respondent’s property. The Appellant also counter claimed 10% interest on the said amount.
After a full-dress trial, with both parties calling a sole witness each and tendering tons of documents, the lower Court entered judgment for the Respondents, granting all the reliefs claimed by them and struck out the Appellant’s counter claim. This appeal is an expression of the Appellant’s dissatisfaction with the outcome of the suit at the lower Court.
The Notice of Appeal, predicated on four (4) grounds of appeal, was filed on 21/02/2018 and is domiciled at pages 1500 – 1505, Volume III of the Record of Appeal. An Amended Notice of Appeal founded on nine (9) grounds of appeal was subsequently filed on 04/10/2021 pursuant to an order of Court made on 29/09/2021.
The Appellant seeks three reliefs at paragraph 4 of the Amended Notice of Appeal, to wit: An order allowing the appeal, setting aside the judgment of the lower Court and remitting the suit back to the lower Court for trial de novo.
In due fidelity with the Rules of this Court, learned counsel for the parties filed and exchanged written Briefs of Argument. The Appellant’s Brief of Argument was filed on 04/10/2021 pursuant to the order amending the Notice of the Appeal, referred to above, while the Respondents’ Brief of Argument was filed on 22/11/2021. The Appellant also filed a Reply Brief on 25/02/2022 in response to the Respondents’ Brief. The Appellant identified six issues for determination in the Brief of Argument filed and adopted on its behalf by Opeyemi Usiola-Kuti Esq. The issues are:
“1. Whether the lower Court was right when it raised suo motu the competency or otherwise of the Appellant’s witness written statement on oath and rejected same in the judgment delivered on 16/2/2018 without inviting parties to address it? – G 1&5
2. Whether the Respondents’ case at the lower Court was not challenged or controverted by the Appellant? G 2 & 3
3. Whether the Appellant’s witness written statement on oath which was adopted by the witness as his evidence in the suit without objection by the Respondents during trial can be expunged as inadmissible subsequently by the learned trial judge? G 4&8
4. Whether the facts of this case are not distinguishable from the facts in GTB Plc v. Abiodun and therefore inapplicable to this case? G6
5. Whether the judgment delivered by the lower Court outside the 90 days as provided in Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended has occasioned miscarriage of justice to the Appellant hence it must be set aside? G7
6. Whether the Respondents relief ought to be granted in view of the evidence before the lower Court? G9”
Mobolaji Kuti Esq, who authored and also adopted the Respondents’ Brief of Argument, submitted four issues for the determination of this Court, viz;
i. Whether given the succinct provision of the applicable law, the lower Court was right when it raised suo motu, the competency or otherwise of the Appellant’s Witness Statement on Oath and rejected same in the judgment delivered on 16/12/2018 without inviting parties to address it thereon.
ii. Whether the lower Court was right to have applied the principle in GTB Plc v. Abiodun (2017) LPELR-42551 (CA) in arriving at its decision in this case.
iii. Whether the judgment of the lower Court was delivered outside the 90 days period as provided in Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and if so, has the delay occasioned miscarriage of justice to the Appellant to warrant setting aside the judgment?
iv. Whether given the facts and evidence before the Court, the Lower Court was right to have granted the reliefs sought by the Respondents.”
Upon a calm reading of the issues crafted by the parties, I am of the view that save for diction and style, the issues are the same in substance and purport. In the circumstance, I will adopt the issues formulated by the Appellant in the resolution of the appeal, after all, it is the Appellant that activated/ignited the jurisdiction of this Court over the appeal. This, I have chosen to do notwithstanding the fact that the Appellant split the issues into pieces. For this reason, I will treat the Appellant’s issues 2 and 3 under its issue 1 as the two issues can adequately be subsumed thereunder.
Arguments
Issues 1, 2 and 3.
Learned counsel for the Appellant noted that the issue of the alleged competency of the Appellant’s witness statement on oath was not raised by either of the parties during the proceedings before the lower Court, rather, it was raised suo motu by the Court in its judgment and decided upon without the Court inviting parties to address it on the issue. He submitted that a Court has no business with an issue that has not been placed before it by the parties, citing Kraus Thompson Organisation Ltd v. Unical (2004) LPELR-1715 (SC). Counsel argued that when a Judge raises an issue on his own motion (suo motu), he owes it a duty to invite parties to address him on the issue so raised before a decision is reached on the issue. He relied on Iriri v. Erhurhobara (1991) 2 NWLR (Pt.173)252; Adeniyi v. Adeniyi (1972) 4 SC. 10; Angadi v. PDP & Ors (2018) LPELR-44375 (SC). It was contended that the decision of the lower Court to reject, expunge and discountenance the Appellant’s witness written statement on oath without affording parties the opportunity to address it was an infraction of the Appellant’s fundamental right to fair hearing as guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Reliance was placed on Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566, 582; Ibrahim v. Judicial Service Commission (1998) 1 NWLR (Pt.584) 1; Dairo v. UBN Plc (2007) NWLR (Pt.1059) 99 at 137-138. Counsel further argued with the aid of Kuti v. Balogun (1978) 1 SC. 53; Obawole v. William (1996) 10 NWLR (Pt.477) 146; Stirling Civil Engineering Nig. Ltd v. Yahaya (2005) 11 NWLR (Pt.935) 181; Omokuwajo v. F.R.N. (2013) 9 NWLR (Pt.1359) 300; Elendu v. INEC & Ors (2015) LPELR-25127, that by its action, the lower Court has left its exalted position as an impartial arbiter and descended into the arena, thereby showing its bias against the Appellant. He submitted that since the Appellant has filed an Amended Statement of Defence and led evidence before the lower Court, it cannot be said to have admitted the claims of the Respondents as held by the lower Court; Nze v. Njoku & Ors (2017) LPELR-42440 (CA). Appellant’s counsel argued that where a witness deposition has been adopted by a witness in the open Court, it is presumed that all irregularities on the face of it are deemed regularized and therefore competent. Cited in support is the case of Udeagbe v. Umegara (2010) 11 NWLR (Pt.1204)168 at 195. It was submitted that the lower Court was wrong to have concluded that the Respondent’s case was unchallenged by the Appellant. The Court was urged to resolve these issues in favour of the Appellant.
In his argument on issue 1 formulated on behalf of the Respondent, which is substantially the same with the Appellant’s issues 1, 2 and 3, learned counsel for the Respondent commenced with the trite position of the law that it is unacceptable for a trial Judge, having admitted documents as exhibits, to expunge them in his judgment unless the admission of such documents in the first instance amounts to a nullity, citing Nwosu v. Udeaja (1990) 1 NWLR (Pt.125)188. He also cited the case of Oladapo v. Moba L.G.A. (2010) 5 NWLR (Pt.1186) 133, on the proposition that if a Court inadvertently admits inadmissible evidence, it has a duty to disregard it and not to act on it. Counsel referred the Court to paragraph 2 and the concluding paragraph of the statement on oath of the Appellant’s witness where the witness referred to his statement on oath, which he adopted as his evidence before the Court, as an affidavit. He submitted that although an affidavit and witness statement on oath are documents made under oath, they differ in classification, function and form as they perform different functions and have different legal requirements, therefore they cannot be used interchangeably. He submitted that an affidavit is not one of the documents filed in an action commenced by Writ of Summons and it can never take the place of a witness statement on oath. It was contended that the learned trial Judge, upon realizing the fundamental error of admitting a document which is a nullity, rightfully expunged same from the record. Counsel submitted that failure of the Appellant’s witness statement on oath, especially the concluding paragraph, to comply with the wordings required by Section 13 of the Oaths Law renders the statement non-existent and worthless. The implication, according to counsel, is that the Appellant filed no witness statement to substantiate his pleadings. Reliance was placed on the decisions of this Court in Hamidu & Anor v. Kaduna Electricity Distribution Plc & Anor (2019) LPELR-48281 (CA) and Cora Farms & Resources Ltd v. Union Bank LCN/13542 (CA). Counsel submitted on the authorities of Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt.521) 1 at 50. Sidi-Ali v. Takwa (2004) ALL FWLR (Pt.220) 1371 at 1386, that an absolute enactment, such as the Oaths Law/Act, must be obeyed or fulfilled exactly. It was reasoned that in the absence of legally admissible evidence on record, the pleadings of the Appellant were not proved as the affidavit filed by the Appellant, without more, cannot prove the Appellant’s averments in its pleadings. Reference was made to the cases of Akande v. Adisa & Anor (2012) LPELR-7807 (SC); Durosaro v. Ayorinde (2005) 3-3 SC 14; Oguejiofor v. Siemens Ltd (2008) 2 NWLR (Pt.1071) 299. It was the contention of learned counsel that the affidavit deposed to by the Appellant’s witness in place of witness statement on oath was a nullity ab initio, and the lower Court has the power and judicial duty to expunge it at the point of writing judgment. The cases of B. Manfag (Nig) Ltd v. M/S O I Ltd (2017) 14 NWLR (Pt.1053) 109 SC; Brossette Manufacturing Nig. Ltd v. Ms Ola Ilemobola Ltd & 3 Ors (2007) 14 NWLR (Pt.1053) 109, were cited in support of this submission.
Issue 4
It was submitted for the Appellant that the facts in the case of GTB v. Abiodun (2017) LPELR-42551 (CA) are not similar to the Appellant’s case and the lower Court ought not apply that decision slavishly on this case for the following reasons:
1. In GTB v. Abiodun (supra), the Appellant challenged the competence of the Respondent’s written deposition during trial and a considered ruling was delivered while in the instant case on appeal, the Respondents neither challenged the competence of the Appellant’s witness statement on oath when it was adopted in Court nor did they raise any issue concerning it in their final address before the lower Court, rather, the Respondents extensively cross examined the Appellant’s witness on the said adopted statement on oath.
2. In GTB v. Abiodun (supra), the Appellant objected timeously without waiving its right, while in this case, the Respondents waived their right to object when they cross examined the witness after he adopted the statement on oath as his evidence. Counsel cited BPE v. Dangote Cement Plc & Ors (2020) 5 NWLR (Pt.1717) 22, to submit that the right to challenge irregular witness statement is waiverable in law.
3. In GTB v. Abiodun (supra), it was the Appellant that raised the issue of incompetence of the statement on oath, in the instant case, it was the lower Court that raised the issue suo motu and determined it without inviting parties to address it, thereby breaching the Appellant’s right to fair hearing, hence the decision is liable to be set aside, citing Adebayo & Ors v. PDP & Ors (2013) LPELR-20342 (SC). Based on these differences, we are urged to hold that the lower Court was wrong in slavishly relying on the case of GTB vs. Abiodun (supra), thereby rendering a wrong decision.
In the Respondents’ Issue 2 which also deals with the application of the principle in GTB v. Abiodun (supra), Respondents’ counsel submitted, after making reference to the argument in the Appellant’s Brief, that even the distinctions, which the Appellant struggles to make in this case, is inapplicable and incapable of salvaging the drowning situation which the Appellant found itself. It was the contention of the Respondent that the Appellant failed to avert its mind to the fact that in GTB v. Abiodun (supra), the Court of Appeal upturned the ruling of the trial Court, which dismissed the objection to the competence of the witness statement on oath and held that any written statement which does not bear the 1st Schedule to Section 13 of the Oaths Act cannot be said to be a written statement on oath. On the propriety of the trial Court raising the issue suo motu without calling on parties to address it on the new issue, counsel submitted that it is the law that the Court at the point of writing judgment can expunge from the record a document which was wrongly admitted and that doing so has no bearing on rights of parties to fair hearing as there is no need to call parties to address the Court on inadmissible evidence, relying on B. Manfag (Nig.) Ltd v. M/S O.I Ltd (supra; Kuti v. Alashe (2005) 17 NWLR (Pt.955) 632 at 645. Note that this same argument was earlier made by the Respondent under Issue 1. The Court was urged to resolve this issue in favour of the Respondent as the fact in GTB v. Abiodun (supra) is not different from the instant case, in that both cases deal with the issue of whether the content and form of the Respondents’ witness statement on oath was in conformity with Section 13 of the Oaths Act.
Issue 5
Appellant’s counsel argued that the judgment was delivered on 16/02/2018 more than the 90 days constitutional time limit for the delivery of judgment after the adoption of final addresses on 24/05/2017, and that the lower Court could not have possibly remembered the salient facts of the parties’ case at the time the judgment was written, citing the example of the finding of the lower Court that the Appellant did not challenge the case of the Respondents.
He submitted that the learned trial Judge failed to evaluate the evidence before him because he has lost his impression of the case as a result of the inordinate delay between the adoption of final addresses and the delivery of judgment, which occasioned a miscarriage of justice to the Appellant. The Court was urged to set aside the judgment which was delivered outside the constitutional provision and occasioned a miscarriage of justice, citing Owoyemi v. Adekoya (2003) 18 NWLR (Pt.852) 301; Cotecna International Ltd v. Churchgate (Nig) Ltd (2010) 18 NWLR (Pt.1225)346 SC. The above legal submissions were made by the Appellant’s counsel after he recited a story that appear to be the reason for the delivery of judgment outside the constitutional time limit of 90 days from the date of the initial adoption of addresses, chiefly among which was the filing of a motion on notice by the Appellant for the amendment of its pleadings after the adoption of final addresses, ruling on which was not delivered until 13/12/2017. After the ruling, parties were directed to re-adopt their respective addresses further to the amendment of the Appellant’s pleadings, and judgment was delivered on 16/02/2018.
Proffering argument on this issue, which is Issue 3 in the Respondents’ Brief of Argument, counsel submitted on behalf of the Respondents that in raising this issue in this appeal, the Appellant was being mischievous. He narrated that after the adoption of final addresses on 24/05/2017, the suit was adjourned to 29/07/2017 for judgment, by which date, the Court did not deliver the judgment, rather it asked the parties to address it on the competence of the Appellant’s pleading. This necessitated the filing of an application for amendment of pleading by the Appellant, which was granted on 13/12/2017. Learned counsel wondered how the Appellant came about the position that the judgment was delivered outside the constitutional period. It was contended that even if the judgment was delivered outside the three months period, it is the law that delay in delivery of judgment cannot, without more, invalidate the judgment. That for such a judgment to be set aside, it must be proved with credible evidence that the delay affected the trial Court’s perception and recollection of events and facts of the case; facts which the Appellant has failed to prove. The case of Eruola v. Ojo & Ors (2014) LPELR-23102 (CA), was cited in support. The Court was urged to find in favour of the Respondents on this issue.
I will, without much ado, proceed to resolve this issue brevi manu. From the Record of Appeal, parties adopted their respective final written addresses on 24/05/2017 and judgment was reserved for 29/07/2017. On the date fixed for judgment, an issue concerning the competence of the Appellant’s pleading, which was wrongly headed, was raised by the Court and parties were asked to address the Court on same. Having realized the error in its pleadings, the Appellant filed an application for amendment of its pleading. The application was argued and granted in a ruling delivered on 13/12/2017, and thereafter, parties re-adopted their final addresses. The re-adoption of addresses on 13/12/2017 is, in the eyes of the law, deemed to be the date the parties finally addresses the Court as envisaged by the Constitution. Therefore, the judgment, delivered on 16/02/2018, was delivered within the 90 days period allowed by the Constitution. It was the Appellant’s error or mistake, and the desire of the Court to have the error corrected that led to a change in date and the necessity for re-adoption of the final addresses. If the Appellant had not filed an application for amendment of pleadings, the initial adoption would have sufficed. I am, therefore, in agreement with the Respondents that in raising this issue, the Appellant was being mischievous. I resolve this issue against the Appellant.
Issue 6
Whether the Respondents’ relief ought to be granted in view of the evidence before the lower Court. Appellant’s counsel stated that the fact that in February, 2001 the Appellant granted N10,000,000.00 Overdraft Facility and N48,000,000.00 Import Finance Facility to the 1st Respondent, whose Chairman/CEO is the 2nd Respondent is not in dispute as same was admitted by the Respondents. He further stated that after the expiration of the tenor of the facility which was 90 days, the Appellant served on the Respondents three demand letters between July and September,2004, for the payment of the outstanding debt which stood at N47,092,930.35. Relying on Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt.1053) 37 at 71; Saleh v. Bank of the North Ltd 2006 (2012) 1 BFLR 556 6 NWLR (Pt.976) 316, learned counsel for the Appellant submitted that where a litigant admits receiving loan facilities and that he has repaid the loan, the burden of proving payment is on him. He argued that there was no evidence before the lower Court to show that the Respondents have liquidated their indebtedness to the Appellant; they did not give evidence of how much was repaid by them to the Appellant as to entitle them to judgment. Counsel accused the lower Court for its failure to evaluate the evidence before it before entering judgment for the Respondents. The Court was urged to find in favour of the Appellant in respect of this issue.
In his argument on the Respondents’ issue 4, which is the same with the Appellant’s issue 6, learned counsel for the Respondents argued that the initial transaction for the importation of iron rods from Ukraine was frustrated after the Letters of Credit was opened because the money could not be sent to the supplier and the Respondents cannot be held liable under the frustrated contract, having done all that is required of them. In the circumstance, the Appellant was not entitled to continue to charge interest under the failed transaction. He argued that in allowing the LC to run its full course of six months by refusing to cancel it even when advised to do so by the intermediate Bank, HSBC, and the Respondents, the Appellant has failed to carry out its duties properly, efficiently and according to international best practices and as such is not entitled to any further payment from the Respondents, citing Oshafunmi & Anor v. Adepoju & Anor (2014) LPELR-23073 (CA); Diamond Bank Ltd v. Ugochukwu (2008) 1 NWLR (Pt.1067) 1 at 28; Akinbiyi v. Lagos Island Local Government Council & Ors (2012) LPELR-19839(CA). Counsel submitted that having failed to take necessary steps to cancel the 1st LC when it was glaring that same has failed because there was no beneficiary to receive payment, the Appellant is barred from claiming interest on the facility sum which accrued owing to its failure to close the LC. On the restructured facility of N90,000,000.00 for which the 2nd LC was opened, it was the submission of the Respondents’ counsel that monies realized from the sale of the iron rods by the Appellant, i.e., the sum of N137,500,826.00, was more than enough to offset the entire facility and interest thereon and other charges for the period of the facility and therefore the Respondents are not indebted to the Appellant. On the Appellant’s demand of the sum of N47,092,930.30 as outstanding indebtedness of the Respondents, counsel submitted, on the principle of he who asserts must prove, that the Appellant have failed to show how much was rolled over from the failed LC to the restructured 2nd LC; how much interest had accrued as at the date the 1st LC failed and the restructured LC was in operation. It was argued that the Appellant has not tendered any document before the lower Court to show the account balance and interest which accrued on the 1st Respondent’s IFF account for any period whatsoever. The Court was urged to hold that the Respondents are not indebted to the Appellant in any sum and to resolve this issue in favour of the Respondents.
In the Reply Brief filed by him, learned counsel for the Appellant submitted that contrary to the argument of the Respondents’ counsel that the Appellant’s witness statement on oath is a nullity, the said statement is not a nullity that the trial Court can expunge from the record. Calling in aid the provision of Section 4 (2) (c) of the Oaths Act, he argued that any defect in the Appellant’s witness statement on oath has been watered down by the Oaths Act as an irregularity, and having been properly admitted in evidence, the learned trial Judge cannot expunge it in his judgment. Reliance was placed on the Unreported judgment of this Court in Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd & Ors, Appeal No. CA/L/1093/2017, delivered on 20/09/2021. It was the further argument of counsel that the provision of Section 4 (2) (c) of the Oaths Law which is in pari materia with the provision of Section 4 (2) (c) of the Oaths Act was not considered in the cases of GTB v. Abiodun (supra) and Cora Farms and Resources Ltd v. Union Bank (supra), cited and relied upon by learned counsel for the Respondents, which are no longer the law. Apart from this point, all other arguments canvassed in the Reply Brief are nothing but re-argument of the appeal, which is not the purpose of a Reply Brief. Those arguments are not deserving of a further review and attention here as Reply Brief is not a repair kit in the hand of the Appellant for an already argued appeal.
Resolution of issues in the appeal
After a clinical examination and meticulous legal dissection of all the issues formulated by the parties in this appeal, I arrive at the conclusion that all the issues revolved around the propriety or otherwise of the action of the lower Court in raising the issue of competence of the statement on oath of the Appellant’s sole witness suo motu and resolving same suo motu. The determination of this important question will resolve this appeal to its finality as all other issues are offshoots and peripheral to this central and fundamental question of the competence of the Appellant’s witness statement on oath. I shall therefore collapse all the issues and treat them jointly in the resolution of the dispute between the parties in this appeal.
At the trial, after the close of pleadings before the lower Court, the Respondents and the Appellant called one witness each in proof of their respective cases. After the close of the case for the parties, learned counsel on their behalf filed final written addresses which they adopted before the matter was adjourned for judgment. In both the pleadings of the parties, the evidence before the lower Court and the final written addresses of counsel, there was no challenge made by the Respondents to the competence of the witness statement on oath of the Appellant’s sole witness. In the course of preparing his judgment, the learned trial judge for the first time raised the issue of the competence of the witness statement on oath of Mr. Yinka Olorunsola who testified for the Appellant as DW1. He proceeded to make a finding that the statement on oath of Mr. Yinka Olorunsola, which he adopted as his evidence before the Court, did not comply with the mandatory provisions of the Oaths Act, 2004, which non-compliance, according to the learned trial Judge, renders the said statement on oath incompetent. The lower Court expunged the witness statement of DW1 and held that the Appellant as Defendant, has no defence to the claim of the Respondents as Claimants. The Court granted all the reliefs claimed by the Respondents and dismissed the Appellant’s counter claim for want of evidence. It is common ground between the parties to this appeal that when the trial Judge raised the issue of competence of the statement on oath of the Appellant’s sole witness, he did not invite the parties to address him before declaring the said witness statement on oath as incompetent and proceeding to rely on the said incompetency of the Appellant’s witness statement on oath to determine the claim before him against the Appellant. After a verbatim reproduction of the written statements on oath of both the Claimants’ and Defendant’s witnesses, which occupies pages 41 to 108 of the Additional Record, the learned trial Judge proceeded immediately at pages 108-of the Additional Record of Appeal as follows:
“It appears to me upon a close and microscopic examination of the statement on oath filed by the Defendant/Counterclaimant, that the statement on oath was wrongly admitted in evidence as same runs contrary to the provision of Section 13 of the Oaths Act, LFN 2004, and it cannot be said to be a proper statement on oath. By Section 13 of the Oaths Act, the declaration at the end of the statement shall be in the form set out in the 1st Schedule to the said Act. The word used in Section 13 is “shall” which depicts compulsion. For ease of reference, the wordings of the 1st Schedule to the Oaths Act provides as follows:
…
It appears from recent authorities that the above provision of the 1st Schedule to the Oaths Act must be adhered to strictly and that non-compliance is not a mere technicality but a mandatory requirement. Furthermore, the statement on oath filed by the Defendant/Counterclaimant referred at the concluding part of the document as an affidavit and not as a witness statement on oath…”
The learned trial Judge quoted in extenso the decision of this Court, per Elechi, JCA, in GTB PLC v. Abiodun (2017) LPELR-42551 (CA), from page 111 to 121 of the Additional Record of Appeal and concluded tersely thus:
“In the circumstances, I hold that Exhibit G which is the Defendant’s “statement on oath” was wrongly admitted and same is hereby expunged. It is clearly inadmissible in law.”
The learned trial Judge proceeded to describe the said witness statement on oath as incompetent, a nullity and therefore worthless and non-existent in the eyes of the law. He held that the pleadings of the Defendant, now Appellant, is not supported by evidence in the absence of Exhibit G which has been expunged, while the evidence led by the Respondents remained unchallenged and uncontroverted. Before I proceed, it is apposite at this point to correct a misconception that a witness statement on oath is a document to be tendered and admitted in Court as exhibit, as was done by the lower Court in the instant case on appeal. A witness statement on oath is the evidence of the witness reduced into writing and sworn before a Commissioner for Oaths. When adopted by the deponent in Court, it becomes his/her evidence. At that stage, it becomes part of the evidence before the Court and therefore does not require being admitted and marked as an exhibit.
While the law donates to the trial Courts and the Appellate Courts the competence to raise fresh point on their own (suo motu) for the purpose of serving the interest or course of justice, it is incumbent on any Court that raises a fresh point or issue to invite parties, particularly the party that may be adversely affected by the fresh point raised by the Court, to address it on such a point before deciding the case on the basis of the fresh issue raised by it. This approach will be in accord with the constitutional safeguard for fair hearing, as it will afford the parties a hearing on the issue before its determination by the Court. The issue of competence of the Appellant’s witness statement on oath was never raised by the Respondents. Indeed, after the adoption of his statement on oath as his evidence and the admission of the statement in evidence as Exhibit G, DW1 was thoroughly cross examined by the Respondents’ counsel without the Respondents raising any eye brows concerning the competence or otherwise of the said witness statement on oath which DW1 adopted as his evidence before the Court and upon which the cross examination was based. Not only that, learned counsel for the Respondents did not, in his final written address before the lower Court, raise any challenge to the competence of the statement on oath of DW1. It was the Court that raised the issue suo motu, and having so raised, the law expects the Court to afford the parties a hearing before basing its decision on the new issue raised by it. This position of the law is trite. See Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 at 59; Olusanya v. Olusanya (1983) 1 SCNLR (Pt.136) 136; Eholor v. Osayande (1992) LPELR-142 (SC); University of Calabar v. Essien (1996) LPELR-188 (SC); Ifabiyi v. Adeniyi (2000) 5 SC 31 at 42; Agbeje & Ors v. Ajibola & Ors (2002) LPELR-237 (SC); The State vs. Oladimeji (2003) LPELR-3225 (SC); Mojekwu v. Iwuchukwu (2004) LPELR-1903 (SC); Kraus Thompson Organisation v. University of Calabar (2004) LPELR-1715 (SC); Bhojsons Plc v. Daniel-Kalio (2006) LPELR-777 (SC); Shasi v. Smith (2009) LPELR-3039 (SC); Leaders & Company Ltd v. Bamaiyi (2010) LPELR-1771 (SC); Victino Fixed Odds Ltd v. Ojo (2010) LPELR-3462 (SC); Uwazuruonye v. The Governor of Imo State (2012) LPELR-20604 (SC); Jev v. Iyortyom & Ors (2014) 23000 (SC); Olaolu v. F.R.N. (2015) LPELR-24778 (SC); Ominiyi v. Alabi (2015) LPELR-24399 (SC); Odedo v. PDP & Ors (2015) LPELR-24738 (SC); The State v. Kapine & Anor (2019) LPELR-49511 (SC); Idachaba v. The University of Agriculture, Makurdi & Ors (2021) LPELR-53081 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
At this juncture, it will not be out of place to take an excursion into the rich pronouncements of some Jurists that once sat or are still sitting on the Bench of Nigerian Apex Court on this well settled point of raising issue by Court suo motu.
In State v. Oladimeji (supra), Katsina-Alu, JSC (as he then was, later, CJN) of blessed memory, had this to say at page 8 of the report:
“It is now trite law that in the determination of disputes between parties, the Court should confine itself on the issues raised by the parties. The Court is not competent to suo motu, make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. Where, however, the Court raises an issue suo motu and the issue goes to the root of the case, the parties must be given an opportunity to address the Court on the point. See Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 298; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda v. Akanmi (1974) 3 SC 109; Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170.”
On his part, Adekeye, JSC, stated the position in the case of Leaders & Company Ltd v. Bamaiyi (supra), in the following words:
“It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides, however clear the issue may appear to be. Where a Court raised an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter, particularly from the party that may be adversely affected as a result of the issue raised. Where a Court raised an issue without giving counsel the opportunity to address on it, the Court would clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversary system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised. Araka v. Ejeagwu (2000) 15 NWLR pt. 692, pg. 684 Olatunji v. Adisa (1995) 2 NWLR pt. 376, pg. 167 Oro v. Falade (1995) 5 NWLR pt. 395 pg. 385 Oje v. Babalola (1991) 4 NWLR pt. 185 pg. 267 Adeniran v. Alao (1992) 2 NWLR pt. 223, pg. 350 Adejumo v. David Hughes & Co Ltd (1989) 5 NWLR pt.120 pg. 146 Yusuff v. N.T.C. Ltd (1977) 6 SC 39 Maiyaki v. Maidoya (1988) 3 NWLR pt. 81, pg.226.”
In Agbeje & Ors v. Ajibola (supra), Iguh, JSC, postulated thus:
“In this regard, it ought to be observed that it is an elementary principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties and it is not competent for the Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for Works Benue State and Another v. Devcon Development Consultants Ltd. and Another (1988) 3 NWLR (Pt. 83) 407; Ochonma v. Ashirim Unosi (1965) NMLR 321; Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC.57; Adeniji and others v. Adeniji and others (1972) 1 All NLR (Pt. 1) 278.”
In Shasi v. Smith (supra), the Apex Court, per Onnoghen, JSC, (as he then was, later, CJN), held thus:
“In this regard, it ought to be observed that it is an elementary principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties and it is not competent for the Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for Works Benue State and Anor v. Devcon Development Consultants Ltd. and Anor (1988) 3 NWLR (Pt. 83) 407; Ochonma v. Ashirim Unosi (1965) NMLR 321; Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC.57; Adeniji and Ors v. Adeniji and others (1972) 1 All NLR (Pt. 1) 278.”
In the case of Ogwe & Anor v. Inspector General of Police & Ors (2015) LPELR-24322 (SC), at pages 27-28 of the Report, Ogunbiyi, JSC, restated the consequences of not affording parties a hearing on issues raised suo motu by Court:
“Furthermore and on the power of Court to raise issues suo motu, the law is trite and also well settled in plethora of decided cases that parties in the circumstance must be given a hearing on the issue so raised. To do otherwise will certainly amount to a denial of fair hearing as is enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. The Court is duty bound to give parties a hearing even if there is no likelihood of a miscarriage of justice. The consequential effect of failure to comply with this provision would warrant that the decision be set aside on the ground of a nullity.”
Speaking on this same issue in the recent case of The State v. Kapine & Anor (supra), Abba Aji, JSC, had this to say:
“What is germane herein is the validity of the issue of delivery of judgment after the statutory period raised by the lower Court suo motu without inviting the parties to address it. When an issue is raised suo motu, it is trite that the parties must be called to address the Court on it as the new issue raised has not been within the contesting power of the parties. It means that the parties contest has not or is not connected with it at all. Thus, for a Court to raise an issue suo motu and determine same without address of parties means the Court is the alpha and omega of the facts and the case of the parties or that the parties are just watchers and standbys. Courts therefore must not delve into the arenas of the contest of parties by raising issues for them and deciding on them. In the instant appeal, the parties know what their case has been from the trial Court and fought accordingly vide the issues presented before the Court. Since the issue of the validity of the judgment delivered by the trial Court was not an appealable ground nor an issue before them, the lower Court was wrong to make that an issue for them and to dismiss the appeal based on that issue it raised suo motu without calling on the parties to address it. The fact that is on record does not save the situation since cases are won not on what is on record but by the facts or pleadings of the parties as the case may be on civil matters and on provable facts beyond reasonable doubt in criminal cases. This will certainly constitute breach of fair hearing not only to one party but to both parties for not being heard in their causes and matters, being hijacked by the judge or the Court as the case may be…The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard.”
From this array of authorities and the postulations of our topmost Judicial Oracles quoted above, it is clear as crystal, that a Court must never raise an issue suo motu and base its decision on the said issue without inviting the parties in the litigation to address the Court on it. After all, the litigation does not belong to the Court, it belongs to the parties, who shall be at liberty to nominate the issues for determination by the Court. Where the Court however considers that an issue not raised by the parties is of paramount importance to the effectual determination of the controversy before it, the input or views of the parties on the issue must be sought before a decision can be rightfully based on it. Where that is not done, the party adversely affected by the decision founded on the issue raised suo motu by the Court can find shelter under the fair hearing principle and have the decision set aside on ground of nullity for denying him a fair hearing. See Dairo v. Union Bank of Nigeria Plc (supra). By raising the issue of the competence of the Appellant’s witness statement on oath suo motu and proceeding to resolve same suo motu against the Appellant without giving the parties, particularly the Appellant, a hearing on the issue, the lower Court was in grave error, which error occasioned a miscarriage of justice to the Appellant by breaching the Appellant’s right to fair hearing. This error of omission has rendered the judgment of the lower Court a nullity. That is one aspect.
On another pedestal, the lower Court justified its refusal to afford the parties a hearing on the issue of the competence of the Appellant’s witness statement on oath raised by it suo motu, on the ground that the witness statement on oath of DW1, having not complied with the mandatory provision of Section 13 and 1st Schedule to the Oaths Act, 2004, is a nullity, which renders it worthless and non-existent in the eyes of the law. In so holding, the lower Court placed heavy reliance on the decision of this Court in the case of Guaranty Trust Bank Plc v. Abiodun (supra), wherein this Court, per Elechi, JCA, held inter alia, at pages 30-32 of the E-Report:
“It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria, 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provides as follows: ‘I do solemnly and sincerely declare…’ Any written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act cannot be said to be a written statement on oath. See Obed Orlando Ibe v. Nkiru Ugochukwu & 41 Ors (2010) All FWLR (Pt.504) 1590 at 1592-1593…
As earlier stated in the course of this judgment, any written statement which does not bear the 1st Schedule to Section 13 of the Oaths Act, cannot be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent’s sole witness in the present appeal. Non-compliance with the provisions of the Oaths Act is a breach of the Oaths Act. The consequence is that the entire statement of the Respondent’s sole witness is left bare.”
The Court held that substantial compliance with the Oaths Act is not enough, that only full compliance will suffice.
In the course of my legal research in the preparation of this judgment, I came across some conflicting and irreconcilable decisions of this Court on the legal effect of a witness statement on oath which did not comply with the form set out in the First Schedule to the Oaths Act. While some decisions favoured the above quoted judgment in Guaranty Trust Bank v. Abiodun (supra), others went contrary to it. Among those that towed the line of GTB’s case are: Hamidu & Anor v. Kaduna Electricity Distribution Plc & Anor (2019) LPELR-48281 (CA), where, at page 21, the Court held the view that failure to comply with the requirement of Section 13 of the Oaths Act renders an affidavit or witness statement on oath defective and incompetent. In Aso Savings & Loans Plc v. Iwunamara (2021) LPELR-55878 (CA), this Court also kowtows to the decision in GTB v. Abiodun (supra), by holding that-
“Non-compliance with the provisions of the Oaths Act regarding the form of statutory declaration is a breach of the Oaths Act, the consequence of which is that the entire statement is rendered incompetent.”
In a similar manner, it was held by this Court in Majekodunmi v. Ogunseye (2017) LPELR-42547 (CA), thus:
“It is my understanding that the Evidence Act and the Oaths Act deals with substantive law and not matters of mere procedure. Their provisions must therefore be complied with as a matter of law. Non-compliance with their provisions have the effect of rendering any evidence admitted in breach thereof invalid.”
The same decision was arrived at in Oyekanmi v. MTN Communications Nigeria Ltd (2020) LPELR-50168 (CA).
On the other hand, some decisions of this Court are diametrically opposed to the view expressed in the cases just referred to. Leading the pack is the case of APGA & Anor v. Dantong & Ors (2011) LPELR-9283 (CA), where the Court held:
“… the judicial interpretation giving to the rule is to the effect that mere failure to comply in exact terms of format in schedules to an enactment does not necessarily always invalidate the thing done, if it is established that the thing is done in a manner substantially in compliance with the forms. … The oaths in the statements complained of, though not exactly, are however principally the same with that prescribed in the said Schedule to the Oaths Act.”
Here, there is a shift to substantial compliance, as opposed to complete compliance as prescribed in the case of GTB v. Abiodun (supra) and the others that followed it. The case of Demrowl International Company Ltd v. Guaranty Trust Bank Plc (2019) LPELR-48967 (CA), also decided that a duly sworn witness statement on oath which did not comply with the format in the Schedule to the Oath Act is merely irregular, not incompetent. In the same vein, in Enyi v. Prodeco International Ltd (2018) LPELR-54927 (CA), this Court decided that a written statement on oath which omits to include the words used in the Schedule to the Oaths Act amounted to a mere irregularity which touches on the form as against the substance of the process, especially that the deponent was sworn in open Court before he adopted the statement on oath as his evidence. In the case of MTN Communications Ltd v. Olatunde (2021) LPELR-54927 (CA), this Court held that the reference by the deponent to the statement on oath as an affidavit does not render the statement on oath as invalid. The same reasoning was adopted in the cases of Abolade M. v. Messrs Chevron (Nig) Ltd (2017) LPELR-43203 (CA); Aluko & Ors v. Adekunle & Ors (2019) LPELR-48402 (CA); Adeleke v. Adisa (2020) LPELR-51202 (CA); Stanbic IBTC Bank v. Longterm Global Capital Ltd & Ors (2021) LPELR-55610 (CA) and Al-Usabs Ventures Ltd & Anor v. Guaranty Trust Bank Plc & Anor (2021) LPELR-55789 (CA). I will return to these contradictory decisions anon.
Now, Section 13 of the Oaths Act, Laws of the Federation of Nigeria, 2004, provides:
“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
These simple provisions deal essentially with the persons duly authorized under the Act to take and/or receive declarations, and the form the declarations shall take or in which to be made, as contained in the First Schedule. The provision does not mandate the incorporation of the exact wordings of the declaration in the First Schedule into the witness statement on oath in order to make it valid. The issue raised suo motu and determined suo motu by the lower Court does not relate to person or authority who took or received and authenticated the statement on oath of the Appellant’s witness, but to the form set out in the First Schedule to the Oaths Act.
The form in which a statutory declaration shall take under the First Schedule to the Oaths Act is provided thus:
“I… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.”
This provision applies to both statements of witnesses on oath as well as all sworn affidavits and declarations. The lower Court held the view, at page 109 of the Additional Record, that the use of the word “shall” in Section 13 of the Oaths Act depicts compulsion and that any written statement on oath which did not conform with the provision of the First Schedule to the Oaths Act is incompetent. It is in line with this reasoning that the lower Court declared the statement on oath of the Appellant’s sole witness, earlier admitted as Exhibit G, not only incompetent but a nullity and proceeded to expunge it from the Record. Learned counsel for the Respondents submitted that by referring to the said statement as an affidavit and concluding the statement not in line with the First Schedule, the witness statement is rendered a nullity and that the trial Court rightly expunged it from the Record. The above reasoning of the lower Court and the submission of learned counsel for the Respondents overlooks the provision of Section 4 (2) (3) of the Oaths Act which waters down the effect of non-compliance in the format of declarations and affidavits to mere irregularity that does not go to the competence of the affidavit or witness statement on oath. The Section provides:
“(2) No irregularity in the form in which an oath or affirmation is administered or taken shall-
(a)…; 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.”
The concern of the lower Court on the issue raised and decided by it suo motu is as regards the form and not the content of the statement on oath of the Appellant’s sole witness, neither has the concern got anything to do with whether or not the statement was duly sworn to. Therefore, from the above quoted provision of the Oaths Act, failure by a declaration, a witness statement on oath or an affidavit to strictly conform with the Form in the First Schedule to the Oaths Act may constitute only an irregularity in the process which does not render it incompetent for the purpose of admissibility as evidence in proceedings. In so holding, I am solidly fortified by the decisions of the Apex Court in Solola v. The State (2005) LPELR-3101 (SC) and Anatogu & Ors v. Iweka II & Ors (1995) LPELR-484 (SC). In these two cases, the Supreme Court interpreted Subsection (3) of Section 4 of the Oaths Act, to the effect that an omission to administer oath or affirmation should be seen as an irregularity such that it cannot affect the competence of the oath or disturb in anyway the jurisdiction of the Court. I hold the considered view that the provision of Section 4 (2) of the Oaths Act has neutralizes the effect of any provision of the same Act that appears mandatory, such that any irregularity in the form of an oath, an affidavit or a witness statement on oath will not have a fatal consequence. Therefore, the reference by DW1 to his statement on oath as an affidavit, and the absence of a concluding statement in terms of the format provided in the First Schedule to the Oaths Act, does not fatally affect the said witness statement on oath as to lead to it being jettisoned, as did the lower Court. See MTN Nigeria Communications Ltd v. Olatunde (supra); Al-Usabs Ventures Ltd & Anor v. Guaranty Trust Bank Plc & Anor (supra).
The saving provision of Section 4 (2) (c) of the Oaths Act has covered the Appellant’s witness statement on oath with the garb and fragrance of competence and validity.
I am not unmindful of the exceptions to the rule that every time a Court raises an issue suo motu, parties must be invited to address the Court on the fresh issue raised. The exceptions as captured by Rhodes-Vivour, JSC, in Omokuwajo v. F.R.N. (2013) LPELR-20184 (SC) are: if the issue concerns the Court’s jurisdiction, or if both parties were not aware or ignored a statute which may have bearing on the case, or when on the face of the record, serious questions of the fairness of the proceedings is evident. None of the exceptions is applicable to this case on appeal. In the first place, question of jurisdiction of the lower Court was never in issue. Secondly, the statute, i.e., the Oaths Act, that was not strictly complied with as to form has an in-built mechanism in Section 4 (2) and (3) that renders non-compliance as to form, a mere irregularity, which does not affect the competence of the process. Thirdly, there was no serious question as to the fairness of the proceedings that may have justified the refusal of the Court to call on parties to address it on the issue raised suo motu. Consequently, this case is not covered by the exceptions. I now return to the decisions in GTB v. Abiodun (supra); Hamidu & Anor v. Kaduna Electricity Distribution Plc & Anor (supra); Aso Savings & Loans Plc v. Iwunamara (supra); Oyekanmi vs. MTN Communications Nigeria Ltd (supra), and the other cases that were decided in the same manner, to the effect that non-compliance by a witness statement on oath or an affidavit with the form of declaration provided in the First Schedule to the Oaths Act renders the process in question incompetent in view of the provision of Section 13 of the Act. I have read some of these decisions and my finding is that the attention of the Courts that decided those cases were not drawn to Section 4 (2) and (3) of the Oaths Act and the decisions of the Supreme Court in Solola v. The State (supra) and Anatogu & Ors vs. Iweka II & Ors (supra) together with the provision of Section 23 of the Interpretation Act, which stipulates:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”
It has been held severally by the Courts that form in a schedule to an enactment are merely inserted as examples and guides and are meant to be followed impliedly only as far as circumstances permit and that once there is substantial compliance with the form, Courts of law will not disapprove. See Maclean v. Inlaks Ltd (1980) 8-11 SC. 1; Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355; Aliyu v. Intercontinental Bank Plc (2013) LPELR-20716 (CA).
It is my sincere belief that if the provisions of Section 4 (2) and (3) of the Oaths Act and Section 23 of the Interpretation Act together with the decided authorities from the Supreme Court and the deluge of authorities from this Court were brought to the attention of the Courts, they most likely would have decided those cases differently.
In the final analysis, I hold that there is no justification in law for the lower Court to jettison/expunge the Appellant’s witness statement on oath which was duly sworn to before the Commissioner for Oaths and adopted under oath by DW1 as his evidence before that Court. For the reasons advanced in this judgment, the judgment of lower Court cannot stand. Consequently, I hereby allow the appeal and set aside the judgment of the Federal High Court in Suit No. FHC/L/CS/15/2009 delivered on 16/02/2018. I order that the case be remitted to the Federal High Court for trial on the merits. Parties to bear their respective costs of this appeal.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother MUHAMMAD IBRAHIM SIRAJO, JCA and I agree with my lord’s reasoning that culminated in the decision to allow the appeal and order that the case be remitted to the lower Court for retrial. My lord has in the lead judgment cited many authorities and done some distinguishing of some authorities in arriving at the decision that having regard to compliance with the Oaths Act, the statement on oath in issue in this appeal, was a mere irregularity. I agree with my lord and I need not belabor the position of the law as stated by my lord.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have had the privilege of reading through the draft judgment of my learned brother MUHAMMAD IBRAHIM SIRAJO JCA, and I am in agreement with the reasoning and decision arrived at by his Lordship. I consequently allow the appeal, and set aside the judgment of the Federal High Court in Suit No. FHC/L/CS/15/2009 delivered on 16/02/2018. I order that case remitted to the Federal High Court for trial on the merits. Parties to bear their costs.
Appearances:
Opeyemi Usiola-Kuti For Appellant(s)
Mobolaji Kuti For Respondent(s)