ASSOCIATED BUSINESS COMPANY LIMITED v. JONAH NWACHINEMELU ORS
(2014)LCN/7627(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of December, 2014
CA/I/145/2010
RATIO
MEANING OF WORDS: THE WORD “SUPERCEDE”; THE DEFINTION OF THE WORD “SUPERCEDE”
The Merrian-Webster Dictionary defines the word “supercede” to mean “to take the place of (someone or something that is old, no longer useful etc): to replace (someone or something)”. per. OBIETONBARA DANIEL-KALIO, J.C.A.
PRACTICE AND PROCEDURE: STATEMENT OF CLAIM; WHETHER A STATEMENT OF CLAIM TAKES THE PLACE OF A WRIT OF SUMMON AND THE EFFECT OF AN INCOMPETENT STATEMENT OF CLAIM
A Statement of Claim therefore takes the place of a writ of summons and becomes the prime process to consider in respect of a claimant’s case. Indeed for example, it is trite law that where a statement of claim discloses no cause of action it will be struck out and the action dismissed. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) p.182. Where an incompetent Statement of Claim is struck out, of what benefit is a bare Writ of Summons in putting forward a Claimants case? None at all, surely. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: STATEMENT ON OATH; WHETHER A STATEMENT ON OATH IS EVIDENCE
There is no doubt that a statement on oath is evidence just like affidavit evidence. per. OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ASSOCIATED BUSINESS COMPANY LIMITED Appellant(s)
AND
1. JONAH NWACHINEMELU
2. MICHAEL EZUMEZU Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the leading Judgment): This appeal is over the decision of the lower court on a case of negligence. The respondents in this appeal who were the claimants in the High Court of Ogun State filed a suit against the appellant here as the defendant in that court. In summary, the case of the respondents in the lower court is that the appellant’s bus was driven negligently. The driver of that bus without due display of the required duty of care, crashed the appenllant’s bus into the rear end of another bus and the respondents Mark truck. The impact of the crash was so serious that the conductor of the appellant’s bus died on the spot.
The respondents Mack truck was severally damaged and the driver of the truck who is the 2nd respondent in this appeal, was seriously injured. As a result of his injury he was rushed to Olabisi Onabanjo University Teaching Hospital where his broken right leg was encased in a Plaster of Paris (POP).
Further treatment of the leg was undertaken by a traditional bone setter or specialist in a place called Ifite-Dunu. The treatment of the 2nd respondent and the damage to the truck said to be owned by the 1st respondent’ cost the 1st respondent a pretty penny. The first respondent also suffered financial losses for as long as the truck was not available for the haulage business of the 1st respondent. The appellant as the defendant in the lower court raised a defence of inventible accident and also raised the issue of the statement of claim not being competent having not been filed by a legal practitioner as the law requires, but by a law firm. The lower court rejected the defence of inevitable accident and found that the statement of claim could still be relied upon by the court.
It found the appellant liable for negligence and concluded that even if the negligence of the appellant was not established on the basis of evidence before the court, on the basis of res ipsa loquitun the appellant was still liable in negligence. The court therefore awarded a total of N1,200,000 in favour of the 1st respondent as special and general damages and a total sum of N680,000 to the 2nd respondent also as special and general damages. The judgment was delivered on 22/10/2009.
Dissatisfied with the judgment, the appellant on 5/01/2010 filed a Notice of Appeal in which it complained about the judgment on 4 grounds. It gave particulars of each ground of appeal except for the omnibus ground 4. The grounds of appeal together with the attendant particulars are the following:-
Ground 1
The learned trial court erred in law when it failed to apply the decision in OKAFOR v. NWEKE (2007) ALL FWLR (Pt. 368) 1016 at 1020 to nullify the Statement of Claim filed by the Claimants/Respondents.
Particulars of Error
(a) The Statement of Claim before the court was signed by Adejumo Ekisola & Ezeani, a law firm and not by a legal practitioner recognized under Section 2(1) and 24 of the Legal Practitioners Act.
(b) The Court in its judgment (at page 17) affirmed that the Statement of Claim of the Claimants/Respondents truly suffered from the defect complained of in OKAFOR v. NWEKE and still failed to follow the decision.
(c) The decision in COLE v. MARTINS which was preferred by the trial court is not similar to the case before the lower court.
(d) What was considered in COLE v. MARTINS was an appeal under Registration of Titles Act.
(e) In COLE v. MARTINS, Lardner and Co. which was registered under the registration of Business Names Act 1961 as Lardner and Co. was deemed to be a sole practitioner which was not capable of being taken for another person or practitioner but in this case, the firm is Adejumo, Ekisola & Ezeani, which comprised of a minimum of three (3) legal practitioners.
Ground 2
The learned trial court erred in law when it held that “Exhibits M and O do not suffice to contradict the evidence of CW2 and CW3, particularly that of CW3, they are discountenanced as being useless”.
Particulars of Error
(a) Exhibits M and O are written Statements on Oath of the Claimant’s witnesses in an earlier suit instituted by the Claimants.
(b) Written Statements on Oath which is by way of affidavit is evidence on its own.
(c) Written Statements on Oath is not the same thing as pleadings as it is done under Oath and before a Commissioner for Oaths.
(d) Affidavits and Pleadings in previous proceedings are legally admissible for the purpose of discrediting and contradicting a witness under cross-examination in a subsequent suit.
Ground 3
The learned trial court erred in law when it shifted the onus of proving the damage to the front of the claimants/Respondents’ vehicle to the Defendant/Appellant.
Particulars of Error
(a) The onus of providing the damage to the Claimants/Respondents, vehicle rests entirely on the Claimants/Respondents.
(b) The Police Report and the Vehicle Inspectorate Officers Report tendered by the Claimants/Respondents did not sufficiently explain the damage done to the Claimants/Respondents’ vehicle.
(c) There were no credible evidence before the court to contradict the evidence of the Defendant/Appellant that the Claimants/Respondents, vehicle must have been involved in an earlier accident.
Ground 4
The judgment is against the weight of evidence.
The Respondents filed a Notice of Cross-Appeal in the supplementary Record of Appeal filed on 24/6/13. However, when the appeal came up for hearing before us on 24/11/14, the Notice of cross-Appeal was withdrawn by the Respondents’/Cross-Appellant’s Learned Counsel R. U. Ezeani Esq. instead, he relied on an amended Notice of cross-Appeal dated 17/10/13, filed on 7/5/14 and deemed pursuant to an order of this court, as having been properly filed and served on 12/5/14. The Amended Notice of Cross-Appeal contains grounds of appeal that have elaborate particulars of the grounds. For reason of succinctness, I will restrict myself to reproducing only the grounds of appeal. I believe also that the grounds of appeal alone without the particulars evince sufficiently, why the respondents decided to file a cross-appeal. The 9 grounds in the Amended Notice of Cross-Appeal are as follows:-
1. The learned trial judge erred when he held that the Statement of Claim in this case was signed by the law firm of Adejumo Ekisola & Ezeani.
2. The learned trial judge misdirected himself and thereby came to a wrong decision when he held that in obedience to the doctrine of stare decisis he was bound to follow OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521 and would therefore not enquire into the facts by requiring evidence to be called to show the owner of the signature on the statement of claim.
3. The learned trial judge erred when he held that Exhibit F was of no probative value and that therefore no evidence was led in respect of the cost of treatment at the Teaching Hospital, Saguma and that ‘this sum of money (N7,000.00) was non recoverable’.
4. The learned trial judge erred when he held that the claim for N19,000.00 being payment for the ambulance that conveyed 2nd Claimant/Appellant to Onitsha from Sagamu Teaching Hospital did not met the standard of proof required for special damages and was “vague… does not lend itself to particularly, easy and precise calculation or quantification upon which the Defendant can also quantify upon the facts as disclosed in the Statement of Claim”.
5. The learned trial judge erred when he rejected the head of claim for loss of earnings.
6. The learned trial judge erred when he held that the testimony of the 1st Claimant/Appellant that the claim in Exhibit A of a daily loss of earnings at the rate of N25,000.00 was inserted by the lawyer who wrote it was not to be believed.
7. The learned trial judge erred in law when he failed to award the claim for pre and post judgment interest when those claims were admitted by the defendant on the pleadings.
8. The learned trial judge erred in law when he refused the claim for interest on the grounds that the principal of restitution in integrum does not eschew payment of interest in tort cases.
9. The learned trial judge erred in law and caused miscarriage of justice when he held in relation to an objection based on OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 421 that, “similar responses raised by Claimants’ Counsel herein to this objection in relation to its technical rather than substantive nature, the need to call evidence to show that it was not signed by a legal practitioner were brushed aside and rebutted by the Supreme Court. Such objections herein relying on the principle of stare decisis can also not hold water before this court.” (See page 140 lines 9-13 of the Record of Appeal).
R. U. Ezeani in addressing us on 22/11/14 when the appeal came up for hearing, drew out attention to a Notice of Preliminary Objection at page 2 0f the Respondents/Cross Appellants, Brief of Argument and the argument on the preliminary objection at page 3-4 of the said Brief.
The Appellant’s Brief of Argument was filed on 2/8/13. A Reply Brief/Reply Brief to the Cross-Appeals’ Brief was also filed. It was filed on 26/5/14. Both briefs were adopted and relied upon by Bamidele Ibironke Esq., appellant’s learned counsel. In the Appellant’s Brief of Argument filed on 2/9/13, the appellant formulated four issues for determination. The four issues were distilled from the four grounds of appeal. The four issues for determination according to the appellant are the following:
1. Whether the learned trial judge was right to have considered the consent of the Statement of Claim despite its defect and irregularity.
2. Whether the learned trial judge was right when he held that a written statement on oath used in a previous proceedings are pleadings and does not form part of the evidence.
3. Whether the learned trial judge was right to have shifted the burden of proving the cause of damage done to the front of the trailer from the 1st respondent to the appellant.
4. Whether, considering the evidence before the trial court, the court ought to have decided the matter the way it did.
The Respondents’/Cross-Appellants’ Brief of Argument is dated 3/10/13. It was filed on 21/10/13 but was deemed as having been properly filed and served on 12/5/14 by a deeming order of this court of 12/5/14. The Respondents/Cross-Appellants’ also filed a respondents/Cross-Appellants’ Reply Brief on 1/7/14. Both Briefs were adopted by R. U. Ezeani, Respondents Learned Counsel. He also relied on the argument contained in both Briefs. The Respondents/Cross-Appellants learned counsel adopted all the issues for determination of the appeal formulated by the appellant except for the first issue which he slightly modified. The modified first issue reads:
“Whether the learned trial judge was right to sustain the statement of claim.”
As earlier noted, our attention was drawn to a Notice of Preliminary Objection at page 2 of the Respondents/Cross-Appellants’ Brief which said objection was also as earlier noted, argued at page 3-4 of the said Brief.
I will now consider the preliminary objection. At page 2 of the respondents/Cross-Appellants Brief of Argument, the Respondents/Cross Appellants gave notice thus;
“Take Notice that the Claimants/Respondents hereby rely on the following preliminary objection –
1. That this appeal is incompetent
2. That this court has no jurisdiction to entertain this appeal.
The grounds of the preliminary objection were given as follows:-
1. That this appeal comes from a non-existent court, the High Court of Sagamu
2. That this court has no jurisdiction or power to entertain an appeal from the High Court of Sagamu, the court from which the appeal emanates.”
In arguing preliminary objection, Respondents’/Cross-Appellants Learned Counsel referred us to the Appellants Notice of Appeal at page 153 of the Record of Appeal. Learned Counsel submitted that the Appellant’s Appeal is against the judgment of the High Court of Sagamu, Ogun State. It was submitted that the High Court of Sagamu does not exist as there is only one High Court in each State of the Federal Republic of Nigeria. We were referred to the case of MBA v. Owoniboys Tech. Services Ltd. (1994) 8 NWLR (Pt. 365) p.705 at 717. It was urged on us that this court has no power to entertain an appeal from a fictional since the courts do not treat academic or hypothetical questions. The cases of Alli v. Aleshinloye (2000) 6 NWLR (Pt. 660) p.177; Plateau State v. A-G of the Federation (2006) 3 NWLR (Pt. 967) were cited in support. It was submitted that the Notice of Appeal is defective and that the appeal is incompetent and should be struck out.
In the reply to the submissions of the Respondents’/Cross-Appellants’, the Appellants’ in the Reply Brief, submitted that the appeal before us is from the Sagamu Judicial Division of the High Court of Ogun State. Learned Counsel referred us to the decision this court in Onyishi Ugwu Nwagbo Nwa Obuta v. Onyishi Ugwuja Ezugwu Okigbo (1995) 4 NWLR (Pt. 389) p. 312 at 356 particularly at 368 wherein this court held that the position of the law is that where a Notice of Appeal is wrongly headed, the court should not strike out the appeal but should, in the interest of justice, hear it on its merits. We were also referred to the case of Clev Josh Ltd. v. Elder Olaniran Ifeoluwa Tokimi (2008) 13 NWLR (Pt. 1104) p.422 at p.428 where this court that the wrong heading of the Notice of Appeal is to be treated as an irregularity that can be condoned by the court. Finally on this point, our attention was also drawn to the case of N.H. Int.L S.A. v. N.H.H. Ltd. (2007) 7 NWLR (Pt. 1032) p.866 at 894 where, according to learned counsel, it was held that the fault, error, sins mistakes or misconduct of a counsel should not be visited on the litigant or party.
Now, a perspicacious examination of the grounds of the preliminary objection is called for with a view to properly dissecting and analyzing it. The grounds of the preliminary objection bear repeating here for the sake of ease of reference. They read:
“1. That this appeal comes up from a non-existence court, the High Court of Sagamu.”
Let me pause hereto ask: Does this appeal come from a non-existent court as asserted in the ground? For an answer, I have gone through the Record of Appeal to find out which court “this appeal comes up from”. The judgment of the court on appeal before us as revealed at page 124-152 of the Record of Appeal is very clear. Let me reproduce the heading of the judgment of the court. It reads:
“IN THE HIGH COURT OF JUSTICE OGUN STATE OF NIGERIA IN THE SAGAMU JUDICAL DIVISION HOLDEN AT SAGAMU BEFORE HIS LORDSHIP, THE HON. JUSTICE O. OGUNFOWORA – JUDGE ON THURS THE 22ND DAY OF OCTOBER, 2009.”
It is obvious from the above that this appeal comes from the High Court of Ogun State and not from the High Court of Sagamu.
The second ground reads:
“That this court has no jurisdiction or power to entertain an appeal from the High Court of Sagamu, the court from which the appeal emanates.”
Does the appeal emanate from the High Court of Sagamu? I have already answered this question above.
Now, the Notice of Appeal at page 153 of the Record of Appeal states that:
“TAKE NOTICE that the defendant/appellant being dissatisfied with the decision/judgment of the court contained in the judgment of the High Court of Sagamu, Ogun State presided over by Justice O. Ogunfowora delivered on 22nd October 2009 doth hereby appeal to the court of appeal …”
The fact that the Notice of Appeal refers to the High Court of Sagamu does not mean that the judgment is actually from the High Court of Sagamu. That much is clear considering the other details shown in the Notice of Appeal namely, the name of the judge, the date of the judgment and the suit number of the case in the court from which the appeal arose. That High Court of Sagamu sticks out like a sore thumb in the Notice of Appeal can only be attributed in my humble view, to nothing more than a mere lapsus stiri, that is, a slip of the pen. There is a Latin maxim which states that one should not make an elephant out a fly – elephantem ex musca facis. I entirely agree. It does appear that a mountain is being made out of the reference to the High Court of Sagamu. It is clear to me that the judgment appealed against is not the judgment of the High Court of Sagamu. Certainly not. It is the judgment of the high Court of Ogun State, Sagamu Division. If someone makes a mistake as to the name of someone or something it certainly does not affect the true identity of the person or thing when it is known. I find another latin maxim quite apt here. It is Nihil facit error nominis cum de corpore constat, meaning, an error in name is nothing when there is certainly as to the person. Equally relevant is the maxim falsa demonstratio non nocet – false description does not vitiate. The error of misdescription of this court from which the appeal emanates does not vitiate the competence of this court to entertain the appeal. Our courts will not be hoodwinked. The overriding need to do justice cannot be deterred by the red hearing of any technicality. I find no merit whatsoever in the preliminary objection. I dismiss it.
I now turn to the issues for determination proper. As earlier mentioned, the parties in this appeal are agreed on the issues for determination except that the Respondents/Counter-Appellants’ have expressed issue 1 in somewhat different words.
On issue 1, which is whether the learned trial judge was right to have considered the content of the statement of claim despite its defect and irregularity, appellants learned counsel submitted that it is the Statement of Claim that determines whether or not a court has jurisdiction in a matter. He cited the cases of Hon. Chike Balonwu v. Peter Obi (2007) 5 NWLR (Pt. 1028) p.488 at 508; Adeyemi v. Oyeyori (1979) 9, 10 SC 31; Izenike v. Nnadozie (1953) 4 WACA 361; Lagoon City Development Corporation Ltd. v. Hon. A-G of the Federation (2004) 14 NWLR (Pt. 786) p.1 at p6. It was submitted that the statement was signed in the name of Adejumo, Ekisola and Ezeani and that it is trite law that it is only a legal practitioner who has been called to the Nigerian Bar and that has his name in the Roll of Legal Practitioners of the Supreme Court that can sign court processes. We were referred to section 2(1) and Section 2(1) and Section 24 of the Legal Practitioners Act.
Learned Counsel noted that towards the end of trial at the lower court, the respondents’ learned counsel tendered a Certified True Copy of the Certificate of Registration of Business Name Adejumo, Ekisola and Ezeani. The said certificate he submitted, shows that the law firm of Adejumo, Ekisola and Ezeani consists of at least three individual legal practitioners.
Learned Counsel submitted that recent judicial pronouncements of the Supreme Court have made it to become now settled that it is improper for a law firm to sign court processes. Referring to an earlier decision of the Supreme Court on the matter in the case of Cole v. Martins (1968) ALL NLR 161, learned counsel argued that the main reason given by the Supreme Court in that case for allowing a process, in that case a Notice of Appeal signed in the name of J.A. Cole & Co., (sic) is that Mr. J. A. Cole (sic) was a sole legal practitioner in the Registered Business Name. It was submitted that the case of Cole v. Martins is distinguishable from the present one.
Learned Counsel cited the case of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) p.521 and submitted that in that case, the Supreme Court held that J.H.C. Okolo, SAN & Co. is not a legal practitioner and therefore cannot practice as such by say, filling processes in the courts of this country. We were also referred to the case of Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) p.63 where, again, the Supreme Court held that where a court process is issued in the name of a firm and not in the name of a legal practitioner, it is not a mere irregularity that can be brushed aside but something more fundamental to the judicial process; one which renders the court process in question incompetent, invalid, null and void. We were also referred to New Nigeria Bank Plc v. Denclag Ltd (2005) 4 NWLR (Pt. 916) p.546 at 560 and numerous other cases. Learned Counsel prayed the court to resolve issue 1 in the appellant’s favour and on account of that dispose of the appeal in its entirety.
In his reply to his learned friends submissions on the issue respondents’/cross-appellants’ learned counsel submitted that the appellant’s complaint is not in respect of the writ of summons but in respect of the Statement of Claim. It was submitted that the test in the case of Madukolu v. Nkemdilim (1962) ALL NLR 581 on the question of jurisdiction or competence of the lower court to entertain a matter has been satisfied and cannot be in doubt. Learned counsel submitted that the matter before us was commenced under the old Ogun State High Court (Civil Procedure) Rules of 1987 which said Rules did not require front-loading of a writ of summons together with a Statement of Claim.
Learned Counsel submitted that under Order 15 Rule 15 of the Ogun State High Court (Civil Procedure) Rules 2008 no technical objection can be raised to any pleading on the ground of an alleged want of form. It was submitted that the objection of the appellant’s learned counsel is a technical one and should be ignored. We were referred to Order 13 Rule 33 of the same Ogun State high Court (Civil Procedure) Rules which states that where by the rules any act may be done by any party in any proceedings, such act may be done either by the party in person, or by his legal practitioner, or by his/her agent unless expressly barred under the rules. Learned counsel submitted that a law firm retained by a party can, for the purpose of the said rule, be an agent of that party and can act or sign for that party. It was further submitted that under Order 5 Rule (1) of the said High Court Rules (Civil Procedure), Rule non-compliance with the rules including the rule on signing of a statement of claim by a legal practitioner, is a mere irregularity which does not nullify the proceedings. The cases of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) p.387 was cited in support.
It was submitted that before a party can rely on non-compliance to set aside or vitiate a proceeding, that party must raise an objection timeously. That, it was submitted, was not done in this case as it took over 2 years before the issue of non-compliance was raised.
It was contended that the appellant cannot be heard to complain after having taken several steps before complaining. The appellant, it was submitted, has waived the irregularity. The case of Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) p.250 and Amaechi v. INEC (2007) 18 NWLR (Pt. 1065) at p.181 were cited in support. It was submitted that in this case unlike in the case of Okafor v. Nweke, the lower court had ample evidence in its records of the name of the legal practitioner who signed the statement of claim. We were referred to page 79, 84-86, 109, 111-115, 121-122 of the Record of Appeal.
Turning to the effect of the decision in cole v. Martins (supra), it was submitted that the correct ratio decidendi in that case as revealed in the case of FBN v. Maiwada (2013) 5 NWLR (Pt. 1348) SC, 444 at 487, is that where only one person constitutes a business registered as a business name under the Registration of Business Names Act, it will be correct to describe that person in terms of the registered business name. Learned counsel contended that where as in this case, a business name is registered under the relevant law, it will be correct to describe the registered proprietors of that name in terms of the registered business name and that it will not matter whether the proprietors are one or two or more persons. It was contended that the important thing in terms of the Legal Practitioners Act is that the proprietors are legal practitioners. It was also contended that a party has never been penalized for retaining more than one counsel at a time. Learned counsel submitted that the interpretation of the decision in Cole v. Martins given by the appellant’s learned counsel cannot be correct. It was contended that on the authority of Cole v. Martins (supra), Mr. Adejumo, Mr. Ekisola and Mr. Ezeani or any of them can be described in terms of the business name of Adejumo, Ekisola and Ezeani as Mr. Adejumo, Mr. Ekisola and Mr. Ezeani are all legal practitioners. It was submitted finally, that the learned trial judge was right to sustain the Statement of Claim. We were urged to resolve issue one in the respondents’ favour.
In his reply to the submissions of the respondents/cross-appellants counsel, it was argued by the appellant’s counsel that it is trite law that a Statement of Claim supercedes the writ of summons. The case of Nigerian Romanian Wood Industries Ltd v. J. O. Akingbulugbe (2011) NWLR (Pt. 1257) p.131 at p.138 was relied upon in support. We were also referred to the case of Dr. Tunji Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) p.1 at p.15 and numerous other cases on the point.
On the contention that an objection to the Statement of Claim was not taken timeously, learned counsel submitted that the defect is a fundamental one and as such cannot be waived aside. The case of Dr. Tunji Braithwaite v. Skye Bank Plc (supra) was referred to in support of the submission.
It seems to me that the arguments of the respondents/cross-appellants’ learned counsels are anchored on three premises, to wit:
1. That the action at the lower court was commenced by a writ of summons and not a Statement of Claim and was therefore competent.
2. The High Court (Civil procedure) Rules of Ogun State allow that any act that can be done by a party can be done by its agent and that the law firm can for the purpose of the rules be an agent of the claimant in the court below and in any case, the signing by the firm can be regarded as an irregularity which does not nullify the proceedings.
3. Following Cole v. Martins (supra), Adejumo, Ekisola and Ezeani or any of them can be described in terms of the business name of Adejumo, Ekisola and Ezeani.
It will be recalled that the respondents/cross-appellants learned counsel submitted that the action before the lower court is competent since it was commenced by way of a writ of summons which writ is not affected by the complaint against the statement of claim. Learned counsel it will also be recalled, relied on the case of Madukolu v. Nkemdilim.
I think that the point being made by the respondents’/cross-appellants’ learned counsel is that the writ of summons is the originating process and because that process is unaffected by the complaint against the statement of claim, the matter before the lower court remained competent. The primacy of a statement of claim vis-a -vis a Writ of Summons cannot be denied since it is a statement of claim that articulates the case of a claimant. The place of a Statement of Claim as a foundational process in litigation is cemented in case law. It is now settled that a Statement of Claim supercedes a Writ of Summons. See Adomba v. Odiese (1990) NWLR (Pt. 125) p.165.
The Merrian-Webster Dictionary defines the word “supercede” to mean “to take the place of (someone or something that is old, no longer useful etc): to replace (someone or something)”. A Statement of Claim therefore takes the place of a writ of summons and becomes the prime process to consider in respect of a claimant’s case. Indeed for example, it is trite law that where a statement of claim discloses no cause of action it will be struck out and the action dismissed. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) p.182. Where an incompetent Statement of Claim is struck out, of what benefit is a bare Writ of Summons in putting forward a Claimants case? None at all, surely.
It will also be recalled that the respondents’/cross-appellants, learned counsel in relying on Order 13 rule 33 of the Ogun State High Court (Civil Procedure) Rules submitted that any act that can be done by a party can be done by its agent and that a law firm qualifies to be regarded as an agent under the said Order 13 rule 33.
Now Order 13 rule 33 of the Ogun State High Court (Civil Procedure) Rules 2008 provides:
“Where by these rules any act may be done by any party in any proceedings, such act may be done either by the party in person, or by his legal practitioner, or by his/her agent (unless an agent expressly barred under these rules).”
The operative words in the above provision are “where by these rules”. It is only where by the High court of Ogun State (Civil Procedure) Rules an act can be done by a party that that act can be done by that party in person or by his regal practitioner or agent. It follows therefore that where by an extant law such as the Legal Practitioners Act such an act cannot be done, then the High Court rules cannot offer any help.
The combined effect of section 2(1) and section 24 of the Legal Practitioners Act cap. 207 of the Laws of the Federation of Nigeria make it clear that for a person to be qualified to practice as a legal practitioner in Nigeria he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. See Okafor v. Nweke (supra). In view of the said provisions of the Legal Practitioners Act and cases such as Okafor v. Nweke, a law firm cannot take cover under the High Court Rules in order to avoid the clear provisions of the Legal practitioners Act or the unflappable decisions of the Supreme Court.
On the argument that the Law firm of Adejumo, Ekisola and Ezeani is a business name and should be considered in the right of the decision of the Supreme Court in Cole v. Martins (supra), I wish to point out that in Cole v. Martins the supreme court held that for a process to be signed in the name of a law firm, the legal practitioner must be the lone legal practitioner of the law firm. In that case, the Supreme Court found that Mr. H. A. Lardner was practicing alone in the business name of Lardner & Co. That is obviously not the case that we have here. Ex facie there can be no doubt that there are at least three legal practitioners in the law firm of Adejumo, Ekisola and Ezeani.
Following from all I have said above, issue 1 is resolved in favour of the appellant and against the respondents’/cross-appellants’.
Having come to the above conclusion, the statement of claim is hereby struck out for being incompetent. The effect of this is that all that has been built on it collapse with it. That really should be the end of this appeal. However, I cannot take liberties seeing that this court is the penultimate court. I will now turn to consider issue 2.
Issue 2 is whether the learned judge was right when he held that a written statement on oath used in previous proceedings are pleadings and do not form part of evidence.
On this issue, appellant’s learned counsel submitted that a written statement on oath is in the form of an affidavit and that an affidavit forms part of evidence and can be used solely to prove facts. Section 107 of the Evidence Act 2011 was cited in support of the learned counsel’s submission. We were also referred to the case of Ishaya Bamayi v. The State (2001) 8 NWLR (Pt. 715) p.270 at 287 and numerous other cases.
Learned counsel submitted that Exhibits M and O are written statements on oath of the Respondents witnesses in an action filed at the High Court of Lagos state which were different from the statements on oath of the respondents’ witnesses in the present case.
Respondents/Cross-Appellants’ Learned counsel submitted that issue 2 is academic and does not ultimately cure any miscarriage of justice in the matter on appeal. It was submitted that the question of damages to the 1st respondent’s truck which the statements on oath were aimed at, was settled by the admissions in the pleadings made by the appellant. Facts admitted need no further proof, it was submitted.
In the Appellant’s Reply Brief it was argued that the appellant has neither by its pleadings nor its evidence before the lower court admitted that the damage done to the front of the respondents’ vehicle was as a result of negligence.
It is necessary at this juncture to consider what the learned trial judge said in his judgment that elicited the issue under consideration. At page 142-143 the learned trial judge said as follows:-
“Defendant’s Counsel urged the court to discountenance the evidence of CW2 and CW3 in that they materially contradicted the account they had earlier given in their respective unused statements on oath filed before the Lagos High Court which were admitted in this trial as Exhibit M and O. What then is the effect of these exhibits which were tendered to contradict the evidence of these witnesses?
The decision of the Court of Appeal in Ibrahim Idris v. ANPP and Ors (2008) 8 NWLR (Pt. 1088) p.1 shows that a witness statement on oath is in the nature of pleadings which cannot be equated with evidence and that unless evidence is adduced in proof of it, it is useless. Accordingly, Exhibits M and O in line with this decision do not contradict the evidence of CW2 and CW3, particularly that of CW3. They are discountenanced as being useless”.
It is obvious from the above passage that the reason why the learned trial judge did not use the statement on oath is that he considered them to be in the nature of pleadings following what he considered to be the decision in Ibrahim Idris v. ANPP & Ors (2008) 8 NWLR (Pt. 1088) p.1. In my humble view, the learned trial judge was wrong. The statement of law that he relied on in coming to his decision to discountenance the statements on oath was a mere obiter dictum of Sanusi, JCA in that case. The statement made by Sanusi, JCA which I hereby reproduce, clearly shows that it was made obiter. His Lordship stated as follows:
“It is noted by me that all those further witness’s statement on oath mentioned by the appellant’s counsel are mere deposition or mere pleading (if it were in regular court) and could not be regarded as evidence.”
The trial judge was therefore wrong to have relied on the statement in arriving at the conclusion that he did.
A witness statement on oath is the evidence-in-chief of a witness in written form. It wit be recalled that before the High Court (Civil Procedure) Rules currently in use in most if not at the states of the Federation, the mode of taking the evidence-in-chief of a witness in court was through his oral testimony. However in 2004, the Lagos State introduced a new High Court (Civil Procedure) Rules inspired by the Civil Procedure Rules introduced in the United Kingdom in 1999 by Lord Woolf. The new Rules required among many other innovations, that the evidence of a witness be reduced into a written statement on oath. Thus when a witness now gives evidence-in-chief in court, he is limited to adopting his written statement on oath. He is then cross-examined and re-examined orally. The idea behind a written statement on oath is to reduce time wasted in lengthy examinations-in-chief. Before the present Rules, it was not uncommon for an examination-in-chief to take several adjournments before conclusion.
There is no doubt that a statement on oath is evidence just like affidavit evidence. The learned trial judge was wrong in treating the statements on oath, exhibits M and O as pleadings and thereby refused to use them to contradict the evidence of CW2 and CW3 before him. I am satisfied that issue 2 must be resolved in favour of the appellant and against the respondents/counter-claimants.
I now turn to the 3rd issue which is whether the learned trial judge was right to have shifted the burden of proving the cause of the damage done to the front of the trailer or truck of the 1st Respondent to the Appellant.
On this issue, appellant’s learned counsel referred to a number of cases on the question of who bears the burden of proof in civil cases. The cases include Audu v. Guta (2004) 4 NWLR (Pt. 864) p.463 at 465; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Mogaji v. Odofin (1978) SC 91.
Learned counsel also referred to Section 131, section 132, Section 133 and section 136 of the Evidence Act 2011. It was submitted that the burden of proving the cause of the damage done to the front of the 1st respondent’s truck lies on the respondents and that the burden was not discharged by them and could not be shifted to the appellant.
In his argument in reply, appellant’s learned counsel submitted that the learned trial judge did not shift the burden of proof. It was submitted that the learned trial judge after considering the evidence before him found that the appellant’s driver was negligent and that the accident was caused by the negligence. We were urged to resolve the issue in the respondents’ favour.
The general principle of law on burden of proof is denoted by the maxim: affirmanti non neganti incumbit probatio that is, the burden of proof is upon him who affirms, not upon him who denies. In civil cases, the burden of proof is not static, it shifts. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) p.410.
The driver of the appellant’s bus admitted hitting the 1st respondent’s truck at the back. However the respondents’ claim that the front of the truck was damaged as a result of the accident. In their particulars of special damages in respect of the 1st respondent’s truck, the respondents gave a long list of the parts of the truck that were damaged. (See at page 3 and 4 of the Record of Appeal). A clear majority of the parts allegedly damaged relate to the front of the truck. The burden of proof in respect of the damage to the front of the truck therefore rests on the respondents. But on whom did the learned trial judge place the burden of proof regarding the damage to the front of the truck?
This is what the learned trial judge said in his judgment at page 145-146 of the Record of Appeal:
“….defendant attempted to lead evidence to show that while there was no damage to the rear of the 1st claimant’s vehicle ……any damage which may have happened to the front of the vehicle was as a result of the prior accident had on that day by the claimants, vehicle. Apart from the mere ipse dixit of DW1 and DW2 no other credible evidence was tendered in support of this”
The appellant did not claim to have hit the 1st respondent’s vehicle at the front. Appellant’s only suggested that if there was any damage to the front of the truck it was probably caused by a previous accident. It was the respondents that said that the accident caused by the appellant’s driver caused damage to the front of the truck. They asserted that fact; it is they that have the burden to prove it, not the appellant. I also resolve issue 3 in the appellant’s favour.
I now turn to the final issue which is whether, considering the evidence before the lower court, the court ought to have decided the matter the way it did. I consider this issue to be amorphous if not altogether hazy. The only tangible thing I can gather even from the submission of the appellant’s learned counsel is that the evidence of CW2 and CW3 were contradictory. I agree with the respondents’/cross appellants’ learned counsel that issue 4 has been treated under issue 2. I do not think that it is necessary to belabor issue 2 under issue 4.
All said, I have come to the conclusion that the appellant’s appeal has merit. It is accordingly allowed. In the same vein, I am satisfied that the cross-appeal has no merit. It is therefore hereby dismissed.
Consequent on the above, the judgment of the lower court is hereby set aside. I award N50,000 costs in favour of the appellant and against the respondents/cross-appellants.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance, the judgment delivered by my learned brother, O. Daniel-Kalio, J.C.A.
My learned brother admirably and succinctly considered and resolved all the pertinent issues that came up for determination in this appeal. I agree with him that the appeal has merit and that it be allowed. It is accordingly allowed by me. However, the cross-appeal has no merit and is therefore dismissed by me.
On that score, the judgment of the court bellowed is hereby set aside. I abide by the order on costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother Daniel-Kalio, J.C.A. had obliged me a preview of his lead judgment in respect of appeals just delivered.
I entirely agree with the reasoning and conclusion therein that the appeal is meritorious and it is hereby allowed. The cross appeal lacks merit and it be and is hereby dismissed.
I also set aside the judgment of the lower court and award N50,000.00 cost in favour of the appellant and against the respondents/cross appellant.
Appearances
Bamidele IbironkeFor Appellant
AND
R. U. EzeaniFor Respondent
