DANIEL GARAN VS STAFF OLOMU

DANIEL GARAN VS STAFF OLOMU

(2013) LCN/4166(SC)

In the Supreme Court of Nigeria

Friday, April 12, 2013


Case Number: SC.98/2001

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA , JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA, JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE, SUPREME COURT

 

APPELLANTS

DANIEL GARAN (For himself and on behalf of all the children of late Jacob Garan)

 

RESPONDENTS

STAFF OLOMU

 

RATIO

CIRCUMSTANCES WHERE THE APPELLATE COURT UNDERTAKES THE RESPONSIBILITY OF EVALUATION OF EVIDENCE:

“It must be remembered that the evaluation of evidence and the ascription of probative value to same is primarily the duty of the trial court. The appellate court undertakes that exercise only where the trial court fails to, arrives at a decision by drawing wrong inferences from the evidence led by parties or the exercise does not depend on credibility of witnesses which only the trial court is best placed to determine by observing the demeanor of the witnesses in the course of their testimonies before it.” Per Musa Dattijo Muhammed.

PROCESS- WHERE A PROCESS SUPERCEDES ANOTHER:

“A process is said to supersede another if it is subsequent to and completely severed from that other. Once there is inter connectivity between the process that was first in time and the subsequent process, the latter cannot be rightly said to have superseded the former. For supercession of an earlier process by a subsequent process to occur there must be a complete disconnect between the two imposed by the fact of the one completely occupying the place or role of the other.” Per Musa Dattijo Muhammed.

Nwali Sylvester Ngwuta, JSC (Delivering the Judgment of the Court):

I have had the opportunity of reading in draft the lead judgment just delivered by My Lord, Muhammad, JSC. I agree entirely with the reasoning and conclusion reached.

I wish to add a few words on the relationship between the Writ of Summons, the Statement of Claim and an Amended Statement of Claim.The purpose of the Writ is to state the nature of the claim and the remedy claimed. The Writ subsists until the Statement of Claim is filed. The Statement of Claim is confined to the cause of action endorsed on the Writ. Once the Statement of Claim is filed, it supersedes the Writ. See Udechukwu v. Okwuka (1956) 1FSC 70.

When the appellant amended his Statement of Claim, the amended process spoke from the date of the original Statement of Claim which superseded the Writ. Once the order to amend the Statement of Claim was granted, the original Statement of Claim was discarded with effect from the date it was filed. See Rotimi v.Macgregor (1974) 11 SC 133 at 152; Sneade v. Watherton (1904) 1 KB295 at 297; Adewunmi v. A-G Ekiti State (2002) 92 LRCN 43 at 64 &65.

In the circumstances, the appellant who averred in paragraph 19 of the Further Amended Statement of Claim: ‘Wherefore the plaintiff sued the defendant as per Writ of Summons’ had no claim before the trial Court.

For the above and the fuller reasons in the lead judgment, I also allow the appeal and dismiss the cross-appeal. I adopt the order for

OLU, ARIWOQLA, JSC:

My learned brother Dattijo Muhammad, JSC obliged me a preview of the lead judgment just delivered.His Lordship dealt extensively and exhaustively with the issues raised in the matter. I am in total agreement with the reasoning therein and the conclusion arrived thereat in the said lead judgment. I adopt them as mine. I also allow the appeal, set aside the judgment of the Court below and restore the judgment of the trial High Court.The cross appeal is struck out.I abide by the consequential orders in the said lead judgment including that on costs.

M. S. MUNTAKA-COOMASSIE, JSC:

I was opportuned to have read before now this important judgment of my lord M. D.Muhammad JSC. I entirely agree with his Lordships reasons and conclusions. I have nothing more useful to add. The cross-appeal is of no moment and same is struck out. Appeal succeeds and is allowed. Judgment of the lower court cannot stand same is set aside. I endorse the order as to costs.

WALTER SAMUEL NKANU ONNOGHEN JSC,:

I have had thebenefit of reading in draft the lead judgment of my learned brother MUHAMMAD,JSC just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. The facts of the case, as relevant to the decision, have been stated in detail in the saidlead judgment and I do not see the need to repeat them herein except as may be needed for emphasizing the point being made.

Though it is contrary to the practice of trial courts and in fact a fundamental irregularity, for counsel to appear both as counsel and as a witness in the same case particularly where the evidence he gives is so material that it forms the basis of the decision of the trial court on the matter, the said principle is not applicable to the facts of this case, where the document which Counsel tendered in evidence from the witness box as PW6, was already in evidence and tendered by the maker of , document himself as exhibit A – see the evidence of PW1, the Licensed Surveyor.

It therefore follows that the re-tendering of the same document by PW6 is a superfluous exercise which added nothing to the case of the plaintiff. I hold the considered view that the admission of exhibit D tendered by PW6, which is the same document earlier tendered by PW1, as Exhibit A and by PW2 as exhibit B has in no way resulted in any miscarriage of justice to justify the setting aside of the proceedings of the trial court.

On the second relevant issue as to whether the statement of claim supersedes the writ of summons, it is a general rule that a statement of claim supersedes the writ of summons and as such any claim or relief contained in the writ of summons which is not repeated or reproduced in the statement of claim is deemed abandoned, as decided in Udechukwu vs Okwuka (1956) 1 FSC 70; (1956) SCNLR 189; Otanioku vsAlii (1977) 11- 12 S.C 9; Keshimro vs Bakare (1967) 1 ALL NLR 280 at 284. This Court has in the case of Okomu Oil Palm Ltd vs Iserhienrhie (2081) 6 NWLR (pt.710) 660 at 681 and College of Education Warri vs Odede (1999) NWLR (pt. 586)253 which are also on all fours with the instant case, that though a statement  of claim which does not contain relief(s) claimed is incomplete, the said statement of claim is complete if it makes reference to the writ of summons for the reliefs it claims because the said writ of summons is thereby incorporated to the statement of claim by reference.

I am of the firm view that the above statement of the law is in accord with the current trend in the development of the law where substantial justice remains the focus of the law, not technicality.

It is also my considered view that the pleading by the plaintiff that ‘the plaintiff claims as per the writ of summons’ does not result in any miscarriage of justice as the defendant is put on notice that the plaintiff is seeking the same reliefs contained in the writ of summons.

It is for the above reasons and the more detailed reasons contained in the lead judgment that I too allow the appeal and dismiss the cross appeal. I also set aside the decision of the lower court and in its place restore the judgment of the trial court.

I abide by the consequential orders made in the lead judgment including the order as to costs. Appeal allowed>

 MUSA DATTIJO MUHAMMAD),]SC:

This is an appeal against the judgment of the Court of Appeal, Benin Division, hereinafter referred to as the court below, setting aside the judgment of the Delta State High

Court,otherwise referred to as the trial court in this judgment, delivered on 26th September, 1996 in suit No. W/101 1986 and remitting same to the trial court for retrial before a judge other than James Omo-Agege CJ against whose judgment the defendant/respondent/Cross appellants appeal was allowed.

Dissatisfied by the judgment, the plaintiff at the trial court who was the respondent at the court below has, with leave, appealed to this Court on a Notice, see pages 313-317 of the record of appeal, containing five grounds. It is pertinent to also note that the defendant at the trial court has similarly cross-appealed against the judgment of the court below on a notice containing four grounds.

The respondent who has raised and argued a preliminary objection against the appellants appeal appears to have abandoned same as no mention of the objection was made by counsel when the appeal was heard. The preliminary objection based on facts which are, in any event, not borne out by the record of appeal is accordingly hereby struck out.

At the hearing of the appeals, parties adopted and relied on their briefs as arguments for and against the two appeals. They have distilled issues in their briefs for the determination of their respective appeals. The three issues raised in the appellants brief for the determination of his appeal are:-

‘1.Whether the court of Appeal was right when it held that it was wrong for the trial court to allow learned counsel who conducted the case to give evidence at the trial and tendered exhibit ‘D’. (This issue covers grounds of appeal)

2. Whether the further amended statement of claim did adopt and incorporate the reliefs in the writ of summons when the appellant averred in paragraph 19 ‘wherefore the plaintiff sued the defendant as per writ of summons. (This issue covers ground 3 of the grounds of appeal).

3. Whether from the state of pleadings and the evidence tendered by both parties, the appellant was not entitled to the judgment of the Court of Appeal instead of remitting  same to the lower court for retrial. ‘

On his part,the respondent has distilled four similar issues at pages 9 – 10 of his brief as arising for determination in the appeal. They read:-

‘1. Whether the Court of Appeal was right when it held that the learned trial judge was wrong to have allowed a counsel in the legal firm handling the appellants case to give evidence on a point directly material to the case.

2.  Whether the further amended Statement of Claim did adopt and incorporate the reliefs in the writ of summons when the appellant stated in paragraph 19 ‘wherefore the plaintiff sued the defendant as per writ of summons.

3. Whether the learned justices of the Court of Appeal were right to have ordered are trial.

4. Whether from the evidence tendered by both parties, who discharged the burden of proof on the balance of probability’

For the cross appeal, the cross appellant has at pages 3 – 4 of his brief formulated five issues for the determination of the cross appeal. The issues read:-

‘5. Whether the learned justices of the Court of Appeal did not misdirect themselves in law when they failed to consider some of the vital issues raised by the cross appellant as to whether the learned trial judge properly evaluated the evidence before arriving at his conclusion.

6.  Whether the learned justices of the Court of Appeal were right to have ordered are trial in this case.

7. Whether the learned justices of the Court of Appeal did not misdirect themselves in law when they failed to consider and make a pronouncement on the issue raised by the cross-Appellant as to whether the learned trial judge was right when he held that the Cross-respondent established his root of title through OVWOHWO family and that the Cross-appellant has not shown how Aholodje Family came to own the land.

8. Whether the learned justices of the Court of appeal did not misdirect themselves in law when they failed to consider and pronounce on whether the learned trial judge was right in law when he discountenanced plaintiff/cross respondents evidence relating to the hut on grounds that same was not pleaded.’

The appellant/cross respondents issues for the determination of the cross appeal at page 1 of his relevant brief read:-

“1. Whether the learned justices of the Court of Appeal failed to consider the issues raised by the cross-appellant as to whether the learned trial judge properly evaluated the evidence before arriving at the conclusion that the cross-respondent established his soot of title through Ovwohwo family and that the cross-appellant did not establish or show how the Aboloje family came to own the land as well as discountenancing the cross-respondents evidence on grounds that same was not pleaded?

2. Whether the learned justices of the Court of Appeal were right to have ordered are trial in this case ? ‘

To appreciate the issues as well as the arguments canvassed thereon in the two appeals, it is helpful to recall at this point the facts of the case on which the two appeals predicate.

By a writ of summons dated 24th April, 1986 the plaintiff at the trial court, the respondent at the court below and the appellant herein, claimed against the defendant, the appellant at the court below and the respondent/cross appellant in this Courts follows:-

‘(a) The sum of N20,000.00k being damages for acts of trespass (which are still containing), committed by the defendant in that he, the defendant,wrongfully broke and entered upon the plaintiffs land situated at Ekpan(Bendel State of Nigeria) within the jurisdiction of this Honorable court during the last six years.

. (b) Perpetual injunction to restrain the defendant, his servants, agents and/or privies from committing and/or continuing the aforesaid acts of trespass. A survey plan of the land in question may be filed later. The defendant has failed, refused and/or neglected to stop his acts of trespass inspite of repeated warnings by the plaintiff,hence plaintiff claims as above. ‘

As ordered by the trial court, pleadings were tiled, exchanged and with leave of the very court amended. The case proceeded to trial and was determined on the Plaintiffs/Appellant/ Cross respondents further amended statement of claim and defendant/respondent/cross appellants 2nd amended statement of defence. By paragraph 19 of the plaintiffs final pleadings, he claims ‘as per writ of summons.’ At the end of the trial including addresses of counsel,the trial court found for the plaintiff/appellant and granted in addition to the N 20,000.00k damages, perpetual injunction against the defendant/respondent/Cross appellant his servants, agents and/or privies from committing and/or continuing further acts of trespass on the land in dispute.

Aggrieved by the decision, the defendant/respondent/ cross appellant appealed to the court below on an amended Notice containing nine grounds from which eight issues were distilled for the determination of the appeal. Of these issues,the court below at page 282 of the record of appeal held,  Baaba JCA, as he then was, as follows:-

I have carefully studied the issues formulated by the appellant and in my humble opinion issue, No 2 and 3 argued together and 6 can conveniently dispose of the appeal. So I will proceed to determine the said issues. ‘

The said issues read.-

‘2 Whether the learned trial judge was right when he allowed a counsel handling the case to testify as a witness in the same case,

3 Whether the-learned trial judge did not misdirect himself when he admitted IDI as Exhibit’D ‘ through Pw6.

6 Whether the learned trial judge was right in law when he delivered judgment in favour of the plaintiff who did not claim any specific relief in his further amended & statement of claim. ‘

In resolving the three issues and determining the appeal, the court below at pages 285-286 of the record concluded as follows–

“In view of the foregoing, I therefore resolve the two issues, that is issues No2 and 3 ,argued together and issue No 6 in favour of the appellant. My answer to both issues is in the negative. With the greatest respect to the learned chief judge, I hold that the learned trial judge was wrong to have allowed a counsel in the legal firm handling the respondents case to give evidence on a point directly material in the case. I also hold the view that the learned trial judge was wrong to grant reliefs not claimed in the £ further amended statement of claim having granted leave to the respondent as plaintiff to amend his original statement of claim. In the result, the appeal succeeds and is hereby allowed. The judgment of the lower court in Suit No w/101/86 delivered on 26/9/96, is hereby set-aside. The case is hereby remitted to the lower court for retrial before another judge……'(Underlining mine for emphasis).

Now, both the appeal and the Cross appeal are supposedly against the foregoing decision of the court below the determination of which appeals require the resolution of the issues formulated by the two appellants as reproduced earlier in this judgment. I shall consider the appellant/Cross respondents appeal first and on the basis of the issues the appellant distilled in his brief which three issues clearly subsume Respondent/Cross appellants four issues.

On the 1st issue, learned appellant counsel contends that the court below given section 155 (1) and (2) of the Evidence Act Cap 112, laws of the Federation 1990 and notwithstanding the general rule of practice, the law remains that Pw6 who is counsel to the appellant is a competent witness and his evidence is accordingly admissible. The nature of Pw6s evidence does not warrant the setting aside of the trial Courts judgment by the court below. Pw6, submits learned counsel,only identified a document that is already tendered and received in evidence by the court through Pw3. Substantiating his submission, learned counsel refers to pages 82 lines 3-14 and 91 lines 2-23 of the record and insists that Pw6 is competent and relevant witness and Exhibit ‘D’ tendered through him is admissible by virtue of section 95 and 97 (10 of the Evidence Act and section 30(2) of the Lands Instrument Registration Law CAP 81 laws of Bendel State applicable to Delta State. Learned counsel further relies on Abiodun Adelaja & ors v. Yusuf Alade & another (1999) 4 SCNJ 225 and Elabanjo v. Tijani (1986) 5 NWLR (Pt 46) 952 at 952 and urges that the issue be resolved against the respondent.

Under the 2nd issue, learned appellant counsel refers to pages 2-3 of the record of appeal whereat appellants writ of summons is set out and pages 71-73 of the record which contain his further amended statement of claim. He dwells particularly at lines 22-23 ot pages 73 being paragraph 19 of the further amended statement of claim and submits that by the very paragraph appellants writ of summons has been incorporated in the further amended statement of claim. Appellant, learned counsel argues, cannot be said, therefore, to have abandoned the reliefs specifically endorsed in the writ of summons. The court below, contends counsel, is wrong to have relied on the case of Emgbokan v. American International Insurance Co Nig Ltd (1994) 6NWLR (Pt 348) 1 in so holding.The correct position of the law, given the particular facts of the case athand, learned appellant counsel further argues, is as held by court in College of Education Warri v. Odede (1999) 1 NWLR (Pt 586) 253 and OkomuOil Palm Ltd v. Iserhienrhe (2001) FWLR (Pt 45) 670 at 692. He prays that the issue, on these two authorities, be resolved in appellants favour.

On the 3rd issue, learned counsel relies on Oredoyin v. Arowolo (1989) 4 NWLR (Pt 114)172) and submits that an appeal is an invitation to a higher court to renew the decision of a lower court to find out, on proper consideration of the facts before that court and the applicable law, whether the & right decision had been reached. In the case at hand therefore, the duty of the court below is to dispassionately review the case based on the materials before it and on concluding that the trial court had properly carried out its function as required by law to affirm that courts decision. The trial courts appraisal of evidence and application of the relevant law to the case at hand, learned counsel contends, is beyond reproach. Both parties in the case had claimed the land in dispute and put their relevant evidence through their witnesses whom the trial court had the privilege of observing in the course of their testimony after which the court preferred.

In response to appellants 1st issue, learned respondents counsel argues under respondents 1st issue that it is unprofessional, unethical and legally wrong for a counsel handling a matter to be allowed to descend into the arena of conflict between the parties to testify for his client on a point directly material to the case.It is not in dispute, learned counsel submits, that PW 6 was appellants counsel at the trial court, had testified in the course of the trial  a counsel thereafter. Learned counsel calls in pages 63 line 12, 78 line 21, 87 line 16, particularly 91 line 2-4 etc and submits that exhibit’D’ which the trial court held at page 128 lines 28-31 to be a certified true copy of the deed is material evidence. Relying on Adesanya Idowu v. Adekola Supra), learned counsel urges that the lower courts condemnation of the role of appellants counsel be endorsed.

On appellants issue, respondents as well, learned counsel submits that plaintiff/appellants failure to incorporate his reliefs in the statement of claim offends order 25 rule 1 2 ( 3) of the Bendel State High Court Civil Procedure rules applicable to the trial court. Learned counsel concedes though that the lapse by the same rules of court is an irregularity that is curable.He submits that this Court in Oba Joseph Adeyemi Ajayi & 2 Ors v. ObaJoseph Abolarin Joyayemi (2001) FWLR (pt 55) 586 at 602-603 maintains that non incorporation of reliefs by the plaintiff in his statement of claim remains an irregularity that has to be rectified.

In further argument under respondents 3rd and 4th issues, learned respondents counsel submits that the court below has in the instant complied with the guidelines this court outlined in many decisions before ordering a retrial. Referring inter-alia to Abilawon Ayisa v. Olaoye Akanji & 5 Ors (1995) 7 NWLR (pt406) 129, Awote v. Owoduni & Sons (1987) 2 NWLR (pt 57) 367; Okeowo v.Migliore (1979) 11 SC and Sanusi v. Ameyogun (1992) 4 NWLR (pt 237) 527 at 556,learned counsel submits that though the retrial ordered by the court below conforms with legal requirements, the higher requirement of justice in the face of the peculiar facts of the case justifies a different approach. The lower court, reiterates the learned counsel, should have evaluated the evidence before it and in doing so would have concluded that appellant is not, having not proved his case, entitled to the reliefs the trial court granted him.Learned counsel urges that this court undertakes that functions and find for the respondent. On the whole, learned counsel urges that the appeal be dismissed. I shall endeavor to consider the issues canvassed in the appeal seriatum.

Now, the judgment of the court below is at pages 273 to 306. The courts decision on the first of the three issues it considered in its determination of the appeal before it to wit, the appropriateness of the trial court allowing Pw6, a counsel handling the case of the appellant, to testify in the same case is particularly at pages 282-283. The court firstly found in relation to the issue thus:-

‘It cannot be disputed that in the instant appeal that One Ed ore Lawson Umuze, anassociate in the firm of Akporiaye and Associate, testified as Pw6 while serving as counsel for the appellant. Exhibit ‘D’ the plank on which the plaintiff/respondent built his case, was tendered through pw6 who served as a counsel for his legal firm as well as a witness before the trial court. In fact the learned counsel for the respondent in his brief conceded that neither a counsel in a legal firm will be a necessary witness. He however submitted that that does not include formal matters such as identification of documents in custody as is the case in the instant appeal.’

In disagreeing with learned respondent counsel that the evidence of pw6, particularly the tendering of Ex ‘D’through the witness, which the court found to be directly material in the case,the court proceeded to find the reception of pw6s evidence by the trial court fatal to that courts decision. In its decision the court below relied on the case of Adesanya v. M.A Adekoya (supra) which is not a decision of this court. At page 211-212 of the law report the passage the court below invoked,Quashie-ldun J remarks on the issue as follows:-

‘I think that this case amply illustrates the importance of adhering to the practice of not allowing counsel to appear both as counsel and as a witness in the same case. It is my view that the procedure adopted in this case is not only contrary to the practice of the courts but it is also an irregularity which has rendered the trial unsatisfactory in that a more competent witness then plaintiff counsel was not called to give evidence on a very important issue in the case.

In the circumstance of this case I think the ends of justice will be amply met by ordering a new trial.’

I agree with learned appellant counsel that the foregoing decision which the court below relied heavily upon along with its other reason to set-aside the trial courts judgment does not support the courts decision. In the case at hand, with due deference to the learned Justices of the court below, the procedure adopted by the trial court in allowing pw6 to testify for the plaintiff/Appellant though contrary to practice it does not constitute such irregularity that renders the entire trial unsatisfactory as the same Exhibit ‘D’ has indeed already been tendered and admitted in evidence through a more competent witness than pw6. In paragraphs 4, 5 & 17 of his further amended statement of claim, the plaintiff/appellant/cross respondent avers as follows:-

‘ In 1975, by a deed of conveyance registered as No 28 at page 28 in volume 348*of the Lands Registry in the office at Benin City, the plaintiff acquired a piece of land measuring approximately 3.450 (three point four five nought) hectares situated at Ekpan Town.

The said piece of land is shown on survey Plan NO TJM 2040 (prepared by Mr. J. Theophilus John, licensed surveyor of No 49, Warri/Sapele. Attached to the Deed of conveyance referred to in the preceding paragraph.(17) The features on the land in dispute are correctly shown on survey plan NO KP 4972 filed along with the amended statement of claim. The plaintiff will found upon and use the said survey Plan at the trial of this action.’The defendant/Respondent/Cross-appellant joined issues when the appellant in his paragraph 4, 5 and 6 of his 2nd amended statement of defence.

 

 

COUNSEL

Chief Fedude Zimughan with Dr. Anthony Okoroctas for Appellant/Cross Respondent.

Prince G.E. Ocliet for Respondent/Cross Appellant.

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