ALHAJI ISIAKA GARBA & ANOR v. ALHAJI AREMU BANNA (2014)

ALHAJI ISIAKA GARBA & ANOR v. ALHAJI AREMU BANNA

(2014)LCN/7560(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of November, 2014

CA/IL/42/2014

RATIO

EVIDENCE: BURDEN OF PROOF; THE DUTY OF THE CLAIMANT WHO SEEKS FOR DECLARATION OF TITLE TO ESTABLISH HIS CASE BY CREDIBLE

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROVING THE IDENTITY OF LAND

The appellants’ incongruous evidence had fallen short of identifying their root of title or the land to which they assert their claim. In the circumstance, it is hard to fault the findings of the learned trial judge that the evidence adduced by the appellants was so inconsistent that no reasonable court could safely rely on it. Moreover, the learned trial judge also found that the identity of the land claimed by the appellants was uncertain, thereby rendering the evidence adduced by the appellants short of discharging the burden of proof placed on them. See the Supreme Court decision in Adelusola Vs. Akinde (2004) 8 MJSC 33 at 39 where the apex court held thus:
“A plaintiff who seeks a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates.”
See also Auta Vs. Ibe (2003) 11 MJSC 128 at 131 where the Supreme Court similarly held thus: “The law is well settled by a long line of authorities that the onus of proof of the identity of the land mass lies, on the plaintiff who seeks decree of declaration of title to the land. Where a plaintiff fails to prove the identity of the land in dispute his claim will be dismissed.”
In the circumstances of this case, where the appellants not only adduced conflicting evidence but also failed to prove with certainty the identity of the land claimed, the lower court have done nothing else than dismissing the claim. per. HUSSEIN MUKHTAR, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI ISIAKA GARBA
2. AHMED AJADI GARBA Appellant(s)

AND

ALHAJI AREMU BANNA Respondent(s)

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The appellants herein were the claimants before the High Court of Kwara State claiming, inter alia the following reliefs:

1. A declaration of entitlement to a statutory right of occupancy of a piece of land situate and being at Abata Baba Labata, Okelele, Ilorin,

2. An order of perpetual Injunction against the defendant/respondent, and

3. The sum of N500,000.00 as damages for trespass on the aforesaid land.

The brouhaha between the parties arose in respect of a claim by the appellants to a customary title of a large piece of land known, as Abata Baba Labata of Okelele, Ilorin Kwara State, covering the land in dispute, which according to the appellants, was granted to their ancestor by the 2nd Emir of Ilorin Oba Shitta who reigned from 1842 to 1861. Their ancestor was a warrior who migrated from Oyo lie (Old Oyo) in Oyo State. The appellants pleaded and testified that they kept and maintained the land, including the land in dispute, which was passed from their ancestor Olokunola to his descendants up to the present appellants. The appellants challenged the respondents for trespassing on a portion of the land where their ancestor’s mud house was built.

The respondent’s contention, however, was that one Yinusa Alabi the DW2 transferred the piece of land in dispute to him vide Exhibit AA1 and he constructed building thereon, which is yet to be completed. Yinusa Alabi, who testified that he sold the land to the respondent claimed that the land was granted, by one Balogun Gambari, to his ancestor called Memudu who migrated to Ilorin in 1914.
Parties joined issues and argued their respective cases. The learned trial judge, in his judgment delivered on 19th December 2013, concluded that the appellants had failed to prove their case and consequently dismissed the claimants/appellants’ case. The claimants/appellants were dissatisfied with that decision, and proceeded to file a notice of appeal on 17th February 2014 predicated upon the following five grounds:

1. The learned trial judge erred in law when on 19/1/2012 ruled that the claimants/appellants only filed a reply to statement of defence but they (claimants) could not lead evidence to prove the averments contained in the said Reply to statement of defence.

2. The learned trial judge erred in law when he concluded that: “the claimant is merely relying on the statement on oaths as proof of his case. It is trite that averments in the pleading do not amount to evidence and can never be so construed. However on the contrary, it has to be proved by evidence subject to the admission of other party” and thereafter dismissed the claimants/appellants’ case.

3. The learned trial judge erred in law when he concluded that the land in dispute was not described with certainty.

4. The learned trial judge failed to apply correct principles of law in the evaluation of the parties’ evidence.

5. The judgment of the trial court is against the weight of evidence.

The learned counsel for the appellant A. B. Jimoh, Esq narrowed down the foregoing five grounds to the following three issues for determination of this appeal:

1. Whether the supposed variance and/or contradictions in claimants’ pleadings and evidence, as highlighted by the trial judge, upon which the judgment of the trial court was based, were substantial enough to warrant outright dismissal of the claimants’ claims? (Relates ground 4)

2. Whether the learned trial judge dispassionately considered the claimants evidence before he concluded that the claimants failed to prove their case? (Relates to grounds 2 & 3).

3. Whether the Ruling of the trial court of 19/1/2012 that denied the claimants the opportunity to lead evidence in support of their pleadings and the rejection of admitted Exhibit (Exhibit A,) on 19/12/2013 do not occasioned miscarriage of justice? (Relates to Ground 1 & 5)

The respondent, however, raised the following two issues for determination:

1. Whether there are substantial and material contradictions in the evidence led by the appellants before the trial court to justify the dismissal of their claim? (Relates to grounds 3 & 4)

2. Whether the trial court adequately considered the appellants’ evidence before arriving at its conclusion? (Relate to grounds 1, 2 and 5).

While the first issue raised by both parties are on all fours, the more elegant and precise second issue formulated by the respondent adequately subsumes the other two issues raised by the appellants. Thus, the more compendious and exquisite two issues raised by the respondent are adopted for the determination of this appeal.

Issue One
Whether there are substantial and material contradictions in the evidence led by the appellants before the trial court to justify the dismissal of their claim?

The learned counsel for the appellants A. B. Jimoh, Esq contended that the trial court had failed to consider and apply the correct principle of the law to the evidence adduced by the appellants and thereby wrongly dismissed the appellants’ claim.
The learned counsel for the appellants submitted that the four issues listed by the learned trial judge as being in consistent or contradictory based on his findings, which lead to dismissal of the appellants’ claim were not based on proper evaluation of evidence. It was argued that the appellants’ answers to the cross examination formed the main evidence were wrongly evaluated by the learned trial judge leading to the wrong conclusion that the “the claimants did not prove their claims to entitle them to the reliefs claimed.”

The appellant’s counsel urged this court to re-evaluate the evidence adduced since it is in as good a position as trial court to evaluate the entire evidence. See Ayorinde & Ors v. Sogunro & Ors (2012) 5-7 MJSC (Pt.III) 1 at 27; Olanrewaju v. Governor, Oyo State (1992) 11/12 SCNJ 92 at 115; A.B. Petroleum Inc. v. Momah (2013) 1 M.J.S.C. 84 at 110.
The learned trial judge firstly found that the testimony of PW1 and 2 was to the effect that Sadiku was their grandfather but subsequently turned around to say that Sadiku was not their grandfather. On this, ground, among others, the learned trial judge found that such evidence was contradictory and that the appellants had failed to prove ownership of the land in dispute. The learned counsel for appellants urged the court to treat the contradictory testimonies as common human mistake and not substantial enough to warrant dismissal of the appellants’ claim.
It was further argued that the learned trial judge also wrongly found that the land in dispute has not been properly identified. It was contented that this finding is not supported by the evidence. The appellants pleaded about 50 feet by 75 feet of land situate at Abata Baba Labata Okelele and led evidence to establish same. The respondent also claimed that he built on the land and his said building is yet to be roofed. Also the agreement Exhibit AA1 tendered in evidence by the respondent was neither signed nor registered and therefore was not helpful. See Section 15 Land Registration Law, (Laws of Kwara State 2006). See also Dantosho Muhammed v. Ibrahim Muhammed (2003) 6 NWLR (PT.817) 457. The learned counsel for the appellant further argued that issues were not joined on the identity of land in question. He urged the court to hold that the respondent had failed to join issues on the identity of the land and the trial court could not do it for them. See Amusan v. Olawuni (2002) NWLR (PT.118) 385 at 1399-1400; Adesula V. Akinde (2004) 18 NSCQLR 374.
On the assumption that the evidence of the PW1 and PW2 are contradictory, though not conceded, the learned counsel for the appellants submitted that the traditional evidence of long possession is enough to earn the appellants a judgment in their favour. Reliance was placed on the authorities in Achilihu v. Anyatonwu (2013) 1 MJSC (PT II) 1 at 26; Onwuka v. Omoghi (1992) 3 SCNJ 98 at 116; Ayorinde & Ors v. Sogunro & Ors (2012) 5-7 MJSC (PT.III) 1 at 27. On the whole it was argued, for the appellants, that there was no such material contradiction in the evidence adduced by the appellants to warrant the dismissal of the action. The appellants’ counsel urged the court to allow the appeal, set aside the judgment of the lower court and enter judgment for the appellants.
The learned counsel for the respondent contended that there are serious and material contradictions in the appellants’ evidence at the trial court to sustain and justify the dismissal of the appellants’ claim before lower court. In other words the totality of the evidence placed before the trial court by the appellants is manifestly unreliable. The 1st appellant as the PW1 before the trial court testified in chief as to how his family came to own Abata Baba labata land including the land in dispute and added that the history was narrated to him by his late father in 1959. However, under cross-examination the 1st appellant claimed to be 60 years old as of 21-06-2012 when the 1st appellant was being cross-examined. It was argued that, the 1st Appellant could not have been more than 7 years old when the history was narrated to him by his father. Even the 1st appellant himself admitted that he was too young to grasp properly the history narrated to him as a matured person could. The evidence of the 2nd appellant who is a younger brother of the 1st appellant is even more unreliable regarding the genesis of their family ownership of the land in dispute. The 1st appellant admitted that he was too young to comprehend the history of their title to the land as narrated to him by his father in 1959.
The learned counsel for the respondent recalled that the 1st appellant (PW1) in his evidence in chief claimed that one Buremo Labata was his grandfather but under cross-examination changed his grandfather’s name to Sadiku. The two appellants were said to be in serious disarray as to who their grandfather was. The 2nd appellant denied under cross-examination that Sadiku was his grandfather. It was submitted for the respondent that these inconsistencies in the evidence of the PW1 and PW2 was much more than a mere slip of tongue. It was not only a contradiction in the evidence adduced by the appellants but also confirms the position of the respondent and his two witnesses who pleaded and testified that the grandfather of the appellants was Sadiku. Also the 1st appellant said when cross-examined that:

“It is not the fenced land of Adisa Olopa that is the subject of dispute but outside it that the defendant trespassed”
However, contrary to the above quoted statement, 1st appellant further stated, under re-examination thus:

“The land in dispute is the same as Adisa Olopa land.”

Furthermore while the 1st appellant stated under cross-examination as follows:
“The defendant did not have any house on the land except for the fence that is on the land.”
The 2nd appellant, to the contrary, stated under cross examination thus:
“The defendant was constructing two houses on the land.”
To add more insult to injury the 1st appellant at one breath, under cross-examination, stated thus:
“For the past 15-20 years now we have been farming on the land.”
At another breath the same witness changed his story when he said:
“For the past 5 years nobody is farming on the land.”
These statements further confounded the incongruous evidence adduced in an attempt to prove the appellants’ case especially when juxtaposed with the evidence of the PW2 where the latter said, in his testimony, thus:
“The defendant started construction of the house on the land about 7-8 years ago….”
On the size of the land in dispute, both the 1st and 2nd appellants gave the measurement as 50ft by 75ft in their evidence in chief but the 1st appellant, under cross examination, said he did not know if the land in dispute is a plot or not while 2nd appellant, also under cross-examination, said it is one plot.
The PW1, in his evidence in chief, also narrated how one Aminu Ramanu introduced his son Saffi Akano to continue farming on the disputed land due to old age. His verbatim testimony is reproduced thus:
“That when the said Ramanu became old he introduced his son, Saffi Akano, to continue farming on the piece of land in dispute and we allowed him to continue farming on the land and to maintain the mud wall house of our ancestor for future use.”

The 1st Appellant went further to narrate the vehement challenge Saffi Akano faced from the defendant/respondent regarding the land by stating thus:
“The son of Aminu Ramanu Saffi Akano reported the defendant to us (the claimants/appellants) that he (respondent) ordered him (Saffi Akano) out of the land in dispute twice and destroyed the dilapidated mud wall…for new building construction.”
The said Saffi Akano, the son of Aminu Ramanu, also testified before the lower court as PW3 and in his evidence in chief stated thus:

“My father Aminu Ramanuis alive but old at Sefura Compound, Okelele, Ilorin. As a result of senility he cannot farm nor go out again but I took over the farming from him and for more than 15 years I planted crops, vegetables and harvested them on the land in question without any disturbance from any quarter until the defendant, Aremu Banna came one day about two years ago and threatened to deal with me if I failed to harvest my crop and vacate the land in dispute for him.”
The PW3 went on to say that:

“The defendant came with some hefty young men with broken voices who destroyed my farm and leveled the mud wall standing on the farm.”
However, the said Saffi Akano, PW3 contradicted himself when, under cross examination, he denied ever farming on the land in dispute.
The said Aminu Ramanu, the father of Saffi Akano, (PW3), has been deprived of the use of land for the past two years. However, his son Saffi Akano said he took over the farm for the past 15 years. Yet, the said Saffi Akano (PW3), under cross-examination, admitted that he has never farmed on the said land. These pieces of evidence when juxtaposed will obviously put the credibility of the whole evidence led by the appellants to doubt and far-fetched.
The learned trial judge rightly therefore observed the glaring incongruity in the evidence adduced by the appellants thus:

“Contradictions in the evidence of witnesses which are so fundamental that no reasonable court will rely on it.”
See Ogun vs. Akinyelu (2005) 2 MJSC 92 at 98 where the Supreme Court held thus:

“The principles as recognized by the courts, is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by the party or as to the reliability of such witnesses.”
Similarly, the apex court in Eyo Vs. Onuoha (2001) NSCQR 45 (Pt.1) 210 at 214, aptly held thus;
“For an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross-examination attack and debunk it. This may be done by the witness reneging from the testimony he had given or contradicting himself by falsifying his earlier evidence. On the other hand, this evidence of one witness being contradicted by the evidence of another witness from same divide may weaken the overall effect of the evidence.”

A claimant who seeks for declaration of title to land has a compelling duty to establish his case by credible evidence. The weakness of the case of the defendant will not abate the mandatory responsibility of discharging this onerous duty. See Akinduro v. Alaya (2007) 6 SCNJ 220 at 223.
The respondent’s case was, however, that there was no mud building on the land in dispute. Testifying this respect, the DW2, Yinusa Alabi stated that:
“There was no wall standing on the land not to talk of demolishing it when he started the construction of house.”
The land was also clearly identified by the agreement receipt exhibit AA1, which has described the land purchased by the respondent thus:
“All that parcel of land measuring 100ft by 50ft lying, being and situate at adjacent to Alhaji Adisa Olopa’s residence at Ontiku Water Area Okelele, Ilorin, Kwara State.”

“The law is well settled by a long line of authorities that the onus of proof of the identity of the land mass lies, on the plaintiff who seeks decree of declaration of title to the land. Where a plaintiff fails to prove the identity of the land in dispute his claim will be dismissed.”
In the circumstances of this case, where the appellants not only adduced conflicting evidence but also failed to prove with certainty the identity of the land claimed, the lower court have done nothing else than dismissing the claim.
It is pertinent that exhibit “AA1” tendered by the respondent is not intrinsically inadmissible as portrayed by appellants. The Supreme Court in Etajata Vs. Ologbo (2007) 11 MJSC 176 at 180 held that:
“A registerable instrument which has not been registered is admissible to prove an equitable interest and to prove the payment of purchase money or rent.”
It is the duty of the claimants/appellants in this case to show not only a better title than that of the defendant/respondent but to also painstakingly lead credible evidence to prove their claim on preponderance of probabilities. The evidence led by the appellants in support of their title to the land is incredibly a bundle of incongruities and manifestly unreliable as rightly held by the lower court.
The foregoing appraisal leads one to the inevitable resolution of issue one affirmatively against the appellants.

Issue Two
Whether the trial court adequately considered the appellants’ evidence before arriving at its conclusion?

This second issue is more or less the same with the first one and all arguments canvassed thereon are consequently reduced to mere academic debate. In other words the affirmative resolution of issue one automatically resolves the second issue similarly.
The multiple fundamental incongruities in the appellants evidence coupled with their inability to identify the land they are claiming or their source of title have rendered their case completely unmeritorious and deserving of only an outright dismissal. Accordingly the appeal is bereft of substance and is hereby dismissed for lacking in merit.
The judgment of the lower court delivered on 19th December, 2013 is hereby affirmed. I award cost of Thirty Thousand Naira (N30,000.00) against the appellants and in favour of the respondent.

MOHAMMED LADAN TSAMIYA, J.C.A.: I had the honour of reading in draft, the lead judgment of my learned brother Hussein Mukhtar, JCA for which I am in complete agreement with. The judgment is quite exhaustive. I do not have anything more to add.
The appeal lacks merit and I too dismiss it. The said judgment of the trial Court is hereby affirmed. I also agree with the consequential order including order as to costs in favour of the respondent.

UCHECHUKWU ONYEMENAM, J.C.A.: I read in draft the judgment of my learned brother, HUSSEIN MUKHTAR, JCA just delivered. I agree with his conclusion that the appeal is lacking in merit.
Howbeit, to buttress why the appeal must be dismissed I want to add as expressed hereunder.
The Appellants at pages 10-15 proffered arguments to urge this Court to come to the conclusion that the learned trial Judge denied himself the opportunity of evaluating all evidence placed before it by striking out the Reply Statement on Oath of 1st Claimant with the attached copy of the Deed of Assignment annexed as evidence of payment.
He contended that failure of the trial Court to consider the entirety of the Appellants’ evidence occasioned a miscarriage of justice. He relied on: Olanrewaju v. Governor of Oyo State (1992) 11/12 SCNJ 92; VAB Petroleum v. Momah (2013) 1 MJSC (Pt.1) 84; Otukpo v. John & Anor. (2012) 3 MJSC (Pt.11) 139.
Further, the learned Counsel for the Appellants relied on the provisions of Order 2 Rule 2(2); Order 27 Rule 1(1) and (3) and Order 40 Rule 1(1) of Kwara State High Court (Civil Procedure) Rules 2005; in his submission that the trial Court was wrong when it struck out the “Reply Statement on Oath of 1st Claimant” with a copy of Deed of Agreement annexed as Exhibit 1.
The respondent’s reply on this issue is at pages 15 – 19 paragraphs 5.02 – 5.10. The learned Counsel for the Respondent referring and examining the same provisions of Kwara State High Court (Civil Procedure) Rules relied on by the Appellants; submitted that the learned trial Judge was right to strike out the “Reply Statement on Oath of the 1st Claimant” with the annexure marked as Exhibit 1. He argued that the 1st Appellant ought to have filed an application under Order 11 Rule 1 to seek for the leave of the Court to file an Additional Statement on Oath. He further contended that, the Appellants by filing the Reply Statement on oath along with their Reply to the Respondent’s Statement of Defence amounted to dumping the same on the Court.
He argued that since through the 2nd Appellant the Reply Statement on Oath of the 1st Appellant with the Exhibit 1 were brought in and considered by the Court as Statement on Oath of the 2nd Appellant; no miscarriage of justice was occasioned. He urged the Court to dismiss the appeal.
It is not in dispute that the learned trial Judge struck out the Reply Statement on Oath of 1st Appellant that accompanied the Appellants’ Reply Statement to the Respondent’s Statement of Defence with the Exhibit A1 annexed to it. It is also not in controversy that the learned trial Judge having struck the said Reply Statement on Oath with the annexed Exhibit A1, did not evaluate them as part of the evidence of the Appellants at the trial Court.
The questions to be answered therefore are: Firstly, was the trial Court right in striking out the Reply Statement on Oath and the annexed Exhibit A1. Secondly, if the learned trial Judge was wrong in striking out the reply, did the effect of the striking out occasion a miscarriage of justice in the case?
The answer to the first poser lies in the respective provisions of Kwara State High Court (Civil Procedure) Rules, 2005; relied on by both parties. I shall reproduce the relevant Rules and proceed to consider them.

Order 2 Rule 2(2):
“Except where Order 23 applies, every Writ of Summons shall be accompanied by:
(a) Statement of claim;
(b) List of Witnesses to be called at the trial;
(c) Written Statement on Oath of the Witnesses; and
(d) Copies of every document to be relied on at the trial”.

Order 27 Rule 1(1) and (3)
Rule 1 (1) “The Claimant shall file his Originating Process and the accompanying documents simultaneously for service on the Defendant or if there are two or more Defendants on each Defendant”.

Rule 1(3) “A Claimant shall within 14 days of service of the Statement of defence and counter-claim if any, file his reply if any, to such defence or counter-claim; provided that where a Defendant sets up a counter-claim, if a Claimant or any other person named as a party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent proceeding, the Court may at any time Order such counter-claim be excluded”.

Order 40 Rule 1(1) and (2)
Rule 1(1) “Subject to these Rules to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open Court”.

Rule 1 (2) “The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all documents or other Exhibits referred to in the deposition”.

The provisions of these Rules reproduced above are all clear without ambiguity and shall accordingly be construed using the plain meaning of the words in the Rules.
Under Form and Commencement of action, Order 2 rule 2(2) provides that every writ of summons shall be accompanied by: Statement of Claim; list of witnesses to be called at the trial; written Statement on Oath of the witnesses; and copies of every document to be relied on at the trial; except for cases of undefended list which are covered by Order 23.
Then for Filing of Pleadings, the Rules provides inter alia; that the Claimant shall file the Originating Process and accompanying documents coetaneously; and file his reply to defence or counter-claim within 14 days of service of such process on him. See: Order 27 Rule 1(1) and (3)
Then again on Proof of facts: Order 40 Rule 1(1) and (2) makes any fact required to be proved at the trial of any action to be proved by written deposition and oral examination in open Court. This provision is however subject to these Rules and to any enactment relating to evidence. The Order also limits the oral examination-in-chief to confirming written deposition and tendering all documents or other exhibits referred to in the deposition.
The Rules relied upon by the parties in their submissions therefore border on commencement of action, filing of pleadings and proof of facts. These are integral parts of proceedings in Court. They are all inter dependent and the Rules must be read together in order to discern the intention of the draftsman. With the clear wordings of the Rules, the contention of the Appellants is that the trial court should have allowed and evaluated the Reply Statement on Oath of the 1st Appellant with the annexed Exhibit 1 filed contemporaneously with the Appellant’s reply to the Respondent’s defence. The Respondent on his own supported the position of the trial Court and argued that since Order 27(1)(3) did not state that the Claimant in filing his Reply to defence or counter-claim shall file same along with his Statement on Oath, the Appellants in the instant appeal were not permitted to file the Reply Statement on Oath of 1st Appellant and the annexed exhibit simultaneously with their Reply Statement to Respondent’s defence. The learned counsel for the Respondent also submitted that the Appellants should have applied for leave of Court under Order 11 Rule 1 to file Additional Statement on Oath of the 1st Appellant.
In resolving this issue, it is necessary to bear in mind that by the provisions of Order 40 Rule 1(1) and (2) (supra), oral evidence in examination-in-chief has been replaced with written statement on oath with the leverage that; a witness will adopt his statement on oath, tender documents or any exhibit he referred to in the deposition except where the Rules or any enactment says otherwise.
Let me start by bringing home the understanding of the phrases “Additional Statement on Oath” and “Reply Statement on Oath”. Additional Statement on oath firms on the word “addition” The need arises when an applicant or Claimant submits additional claims. It is a formal revision or addition made to a pleading that necessitates additional Statement on Oath. For there to be an additional Statement on Oath, there must be a change made by addition, deletion or correction; mostly an alteration in wording of a statement of claim. Simply put, an additional statement on Oath is a revision or amendment of a statement on Oath as a result of additional claims submitted by a Claimant.

On its own, a Reply Statement on Oath rests on the word reply. It follows a Claimant’s reply in response to issues and arguments raised in an opponent’s statement which are fresh. A Reply Statement on Oath is a sworn evidence made to proof facts contained in a Claimant’s reply to Defendant’s Statement of Defence. The Reply Statement on Oath does not add nor revise the Claimant’s Statement on Oath. It is only necessary and allowed in proceedings to enable the Claimant proof facts in response to the Defendant’s fresh issue raised outside the Claimant’s pleading. Accordingly, a Reply Statement, on Oath is that sworn evidence of a Claimant which seeks to prove facts in his Reply Statement as a result of the fresh, unique, novel and further averments introduced to the Defendant’s Statement of Defence outside the Claimant’s Statement of claim. See: Egesimba V. Onuzuruike (2002) 15 NWLR (PT.791) 466.
Clearly therefore, an additional Statement on oath is different from a Reply Statement on Oath of a Claimant. It flows, from common sense then, that the duo cannot be governed by the same rule. Since what is in issue in this appeal is a Reply Statement on Oath of 1st Appellant following Appellants’ Reply statement in answer to the Respondent’s Statement of Defence, Order 11 Rule 1 which the Respondent argued is the correct rule for the Appellants to invoke for leave to file an additional Statement on Oath is not relevant. I hold that in the circumstance of this case, the Appellants who filed “Reply Statement on Oath of 1st Claimant” and not “Additional Statement on Oath” did not require Order 11 Rule 1 to file the Reply Statement.
A Reply Statement of a Claimant to the opponent’s statement of defence is a Claimant’s second pleading. Accordingly, in the absence of a clear provision of the Rules to the contrary, the rules applicable to the Claimant’s filing of his statement of Claim (1st Pleading) applies mutatis mutandis to his 2nd Pleading
In the instant appeal, Order 27 Rule 1(3) is silent as to whether a Claimant who files a reply to the Defendant’s defence should file same along with his Reply Statement on Oath. However, by the combined effect of order 2 Rule 2(2) and 27 Rule 1(1), a Statement of Claim which shall accompany a writ of summons must be alongside accompanied by: a list of witnesses to be called at the trial; written Statement on oath of the Witnesses; and copies of every document to be relied on at the trial. To strengthen this view is Order 40 Rule 1(1) and (2) which has limited oral examination of a witness during evidence-in-chief to the confirmation of his written deposition and tendering of documents referred to in the deposition. By Order 40 Rules 1(1) and (2) therefore, evidence to prove the facts in a pleading must be by written deposition. The absence of such written deposition amounts to no evidence in proof of the facts pleaded which means such facts as pleaded have been abandoned. It follows that in the filing of pleadings, the necessary documents as per Order 2 Rule 2(2), must be simultaneously filed for the party to have evidence to establish his pleadings. Since this is the position of the Rules of Kwara State High Court in filing 1st pleading, then it is also the correct position in filing a 2nd pleading.
Therefore, I hold that the learned trial Judge was wrong in striking out the Reply Statement on Oath filed along with the Appellants’ Reply statement to the Respondent’s defence.
Howbeit, as argued by the Respondent at pages 18 – 19 paragraphs 5.09 – 5.10; the Reply Statement on Oath of 1st Appellant with the annexed Exhibit 1 which were struck out were later brought into evidence through the amendment of the Appellants’ Statement of claim and calling of the 2nd Appellant as an additional witness. This is evidenced by an application dated 01/11/2012 and filed 02/11/12 which was granted on 27/11/12 by the trial Court.
A closer examination of the rejected “Reply Statement on Oath of 1st Claimant” and the “Proposed Statement on Oath of the 2nd claimant” which was deemed as properly filed and served and was later adopted as the 2nd Appellant’s written Statement on Oath before the trial Court, will show that it is the same Statement on Oath sworn by the 1st Appellant in the rejected “Reply statement on oath of 1st Claimant” that was repeated and sworn to by the 2nd Appellant in his Written Statement on Oath. The difference in the two statements is only in the first two paragraphs to indicate their names and their capacity before the trial Court.
From the foregoing, it my view that although the learned trial Judge struck out the “Reply Statement on Oath of 1st Claimant”; he did not deny himself of the opportunity of evaluating evidence of the Appellants since the same evidence struck out was eventually brought in through the 2nd Appellant’s evidence before the Court.
This issue was rightly resolved in favour of the Respondent by my learned brother. It is for the above and other reasons given in the lead judgment that I also dismiss this appeal for lacking in merit.
I abide by the Order as to costs.

Appearances

A.B. Jimoh Esq.For Appellant

AND

S.A. Ayipo Esq. with him R.A. Olatunji (Mrs.)For Respondent