METROPOLITAN SHUTTLE EXPRESS LTD. & ANOR v. MINISTER OF THE FCT & ORS
(2022)LCN/17116(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/A/933/2019
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
1. METROPOLITAN SHUTTLE EXPRESS LTD. 2. BANNA WORLD-WIDE SOLUTION COMPANY LTD APPELANT(S)
And
1. MINISTER OF THE FEDERAL CAPITAL TERRITORY 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. ABUJA METROPOLITAN MANAGEMENT COUNCIL RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AMENDMENT OF COURT PROCESSES
The position of the law on amendment of process or processes of Court in a suit or action is very clear and settled to the effect that once an amendment is made or granted by the Court seised of the matter to any process, the earlier processes ceased to be in existence and no longer defines the issues between the parties to the action or suit. Therefore, the position in the Appellant’s case herein is that upon the filing of the aforesaid Further and Better Amended Statement of Claim by the Appellants on 8/3/2018, the Amended Statement of Claim filed on 8/5/2017 ceased to be the pleading defining the issues in the Appellant’s suit. The Further and Better Amended Statement of Claim filed on 8/3/2018 replaced the Amended Statement of Claim filed on 8/5/2017 and the extant Further and Better Amended Statement of Claim related back to the date the action was first filed in Court. See:
1.JOHN OFORISHE V. NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PART 1602) 35 at 56 G-H to 57 A per RHODES- VIVOUR JSC said:
“After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3rd May 1995 and the further amended statement of defence filed on 7th June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties. The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi Ors v. Mc Gregor (1974) II SC p. 133; C.G.D.G. (Nig) Ltd Idorenyin (2015) 5-6 SC (Pt. II) p. 1; (2015) 8 NWLR (Pt.1475) 149.” PER IGE, J.C.A.
WHETHER OR NOT A CLAIM OR RELIEF FOR SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED
The law is settled that a claim or relief for special damages must be clearly or succinctly pleaded by the Claimant and it must be strictly proved by credible and believable evidence as such relief will not be granted on the fact that the facts or documents relied upon were not contradicted, see VITAL INVESTMENT LTD VS CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (PART 1820) 205 AT 247 B-H to 248 A-C per ABOKI, JSC who said:-
“The above dictum of the Court below notwithstanding, learned counsel for the Respondent was on terra firma when he submitted that even if the sum paid did not include the profit that Appellant was to make, the loss contemplated, if at all, ought not to have been awarded as it was neither specifically pleaded nor strictly proved at the trial in accordance to the specifications laid down in numerous authorities, and I shall make reference to a few of them.
In Akinkugbe v. Ewulum Holdings (Nig.) Ltd & Anor. (2008) LPELR 346 (SC), (2008) 11 NWLR (Pt. 1098) 375 this Court held that:
“The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should plead its particulars and lead credible and admissible evidence of such character as would establish that he is indeed entitled to an award under that head. The evidence of particulars of the losses must be known exactly and accurately measured before the trial Court. “
Similarly, in AJigbotosho v. RCC (2018) LPELR 44774 (SC), (2019) 3 NWLR (Pt. 1659) 287 this Court held that:
“…Special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible…”
See also Onyiorah v. Onyiorah & Anor (2019) LPELR 49096 (SC); (2019) 15 NWLR (Pt. 1695) 227. PER IGE, J.C.A.
WHETHER OR NOT A PARTY WHO DID NOT MAKE A DOCUMENT IS COMPETENT TO GIVE EVIDENCE ON IT
1. IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:-
“It is settled law that a party who did not make a document is not competent to give any evidence on it. This is the situation here. PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity. “
2. WIKE EZENWO NYESOM VS HON. (DR) DAKUKU ADOL PETERSIDE & ORS(2016) 7 NWLR (PART 1512) 452 AT 522 where KEKERE-EKUN, J SC, who said:-
“In Belgore v. Ahmed (supra) this Court emphasised the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document. Furthermore, in Buhari v. NEC (supra) at 391 it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement.”
3. E. N. OKEREKE VS NWEZE DAVID UMAHI & ORS (2016) 1 NWLR (PART 1524) 438 AT 472 A-H per NWEZE, JSC who said:-
“Surely, since the witness (PW 1), was not “in any polling unit in Ebonyi State on the day of election”; “had never worked at INEC office”; “did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base” and “was not part of the team that came to Abakaliki for the exercise”, the lower Court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was “ignorant of (their) content”.
As this Court explained in Buhari v. I.N.E.C (2008) 18 NWLR (Pt. 1120) 246, 391-392, paras H-A.
“Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.”
4. BASHIRU POPOOLA V THE STATE (2018) 10 NWLR (PART 1628) 485 AT 496 H TO 497 A-B per RHODES-VIVOUR, JSC. PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Federal Capital Territory, Abuja delivered on 2nd day of July, 2019 by HON. JUSTICE A. O. OTALUKA IN Suit No. FCT/HC/CV/695/2017 granting in part the reliefs sought against the Respondents by the Appellants.
The Appellants as the Claimants had approached the lower Court claiming against the Respondents the following reliefs contained in their FURTHER AND BETTER STATEMENT OF CLAIM dated 8th March, 2018 and filed on 9th March, 2018 as follows:-
i. A declaration that the demolition and destruction of the Claimants’ recreational facilities on its premises located at Gimbiya Street, Garki, Abuja by the Defendants is unlawful and illegal, and a violation of the Claimants’ right.
ii. A declaration that the Claimants are entitled to damages from the Defendants for the loss incurred by the Claimants as a result of the conduct of the Defendants.
iii. N19,330,000.00 (Nineteen Thousand, Three Hundred and thirty Three (sic) Thousand Naira) being special damages for the cost of landscaping, plumbing work, electrical works, inflatable devices and car ports destroyed by the Defendants on the Claimants’ park and recreational facility.
iv. N10,000,000.00 (Ten Million Naira) being general damages for the pains and trouble caused the Claimants by the Defendants.
v. The cost of this action.”
After exchange of pleadings, the matter proceeded to hearing and upon adoption of the Written Addresses of the learned Counsel to the parties the learned trial Judge gave considered judgment on 2nd July, 2019 as aforesaid and found in favour of the Appellants as follows:-
“The Claimants herein have adduced credible evidence in proof of part of their claims; which evidence remained unchallenged and uncontroverted by the Defendants.
The Claimants have discharged the onus of proof placed on them by the law and this Court cannot but accept and act on the unchallenged evidence adduced by the Claimants.
It is my finding, and I so hold, that the Claimants have by the evidence adduced before this Court, proved part of their claims against the Defendants, and are thus entitled to judgment in that regard.
Accordingly, the Claimants’ case succeeds partly and judgment is entered for the Claimants as follows;
1. It is declared that the demolition and destruction of the Claimants’ recreational facilities on its premises located at Gimbiya Street, Garki, Abuja by the Defendants is unlawful, illegal and a violation of the claimants’ right.
2. It is declared that the Claimants’ are entitled to damages from the Defendants for the loss incurred by the Claimants as a result of the conduct of the Defendants.
3. Relief III fails and is dismissed.
4. The sum of N2,000,000.00 (Two Million Naira) being general damages for the pains and trouble caused the Claimants by the Defendants.
5. Cost of N200,000.00 (Two Hundred Thousand Naira) for out of pocket expenses.”
The Appellants were aggrieved on account of refusal of lower Court to grant relief III in Appellant’s favour and have by the Notice of Appeal dated 23rd July 2019 and filed the same date appealed to this Court on three (3) grounds as follows:-
“2. PART OF THE DECISION OF THE TRIAL COURT COMPLAINED
OF:
Part of the judgment where the trial Court refused to grant the Appellant’s relief number (iii) for special damages on the basis that documents establishing claims for special damages were tendered on the amended Statement of claim which was not the final amendment.
3. GROUNDS OF APPEAL
GROUND ONE (1)
The learned trial Judge misdirected himself when his Lordship held thus:-
“The question that needs an answer is whether the claimant can sustain more than one Statement of Claim in a single suit. It is my opinion that amendment of a Statement of claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective. The follow up question is whether evidence led on a defective Statement of Claim can be considered? …it is therefore my conclusion that Statement of Claim dated and filed on 8th May, 2017 and witness Statement on Oath of PW 1 are automatically expunged having been replaced by the Further and Better Amended Statement of Claim with the Statement on Oath of Salihu Saidu Makama as the only witness – Exhibits PW1A, PW1B, PW1C AND PW 1 D-D1 being documents tendered based on the expunged statement of claim are discountenanced and expunged. In other words, there is no evidence establishing the claim for special damages which though were particularised in the pleadings of 9th March, 2018.”
thereby occasioning grave injustice to the Appellants.
PARTICULARS
1. In proof of their case at the trial Court, the Claimants called two witnesses, PW 1 and PW2 respectively.
2. The first witness (PW 1) testified and tendered Exhibits PWIA, PW1 B, PW1 C, PWD and PWD1 on the Amended Statement of Claim subsequent to which the Claimants further amended their Statement of Claim.
3. Consequent upon filing their Further and Better Amended Statement of Claim the Claimants then called their second witness (PW2).
4. The documents tendered through PW 1 were admitted in evidence and form the record of the Court and the Court has a duty to evaluate same.
5. The amendments obtained by an Order of the trial Court which led to the filing of the Further and Better Amended Statement of Claim did not alter or change the facts upon which the PW 1 gave his testimony.
6. PW2 led evidence in paragraphs 27, 28, 29 (a) of his Witness Statement on Oath in support of the relief for special damages.
7. The evidence of PW2 in respect of the reliefs for special damages are founded at paragraphs 26, 27, 28, 29 and 30 of the Further and Better Amended Statement of Claim.
8. The facts upon which Exhibits PW 1A, PW 1B, PW1C, P WD and PWD1 were founded as per the original Statement of Claim are the same as contained in the Further and Better Amended Statement of Claim.
9. Amended Processes do not become otiose as they remain part of the record before the Court in any proceedings. Anambra State Environmental Sanitation Authority vs. Ekwenem (2009) 6-7 S.C. (Pt. 11) page 5.
GROUND TWO (2)
The learned trial Judge erred in law when His Lordship in his judgment suo moto raised the issue of the reliance by the Appellants on two Statements of Claim in the course of the proceedings without availing the parties the opportunity of addressing the Court on the said issue and the Court proceeded to make a finding on same thereby occasioning grave injustice to the Appellants. Gwede v. INEC & 3 Ors. (2014) 10 SC 1
PARTICULARS
1. Where a Court raises an issue suo moto, it is incumbent on the Court to invite counsel to address the Court on the said issue before making a finding on same particularly the Party who would be adversely affected by the exercise.
2. This principle is in line with the doctrine of fair hearing enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. The failure of the trial Court to invite the Party particularly the Appellants address the Court on the issue suo moto raised by the Court is a violation of the Appellants right to fair hearing.
GROUND TWO (3)
The decision of the trial Court is against the weight of evidence.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
1. AN ORDER of this Honourable Court allowing the appeal.
2. AN ORDER granting the Appellants reliefs for special damages as per their Further and Better Amended Statement of Claim.
3. AND FOR SUCH ORDER or further orders that this Honourable Court may deem fit to make.”
The Appellants’ Brief of Argument was dated and filed on the 8th day of November, 2019 while the Respondents’ Brief of Argument was dated and filed 5th February, 2020 but deemed properly filed on 13th January, 2022. The Appellants filed Appellants’ Reply Brief of Argument on 12th March, 2020. It was dated same date. It was deemed properly filed on 13th January, 2022.
The learned Counsel to the Appellants T. R. AGBANYI, ESQ distilled two (2) issues for determination viz:-
“a. Whether the trial Court in deciding the case was right in discountenancing and expunging documents tendered through PW1 after which the Claimants further amended their Statement of Claim? (Ground One)
b. Whether the trial Court was right in raising an issue suo motu without availing the parties the opportunity to address it in same? (Ground Two)
The learned Counsel to the Respondents ERIKI JOSEPH, ESQ also nominated two (2) issues for consideration of the appeal viz:-
“1. Whether or not the trial Court was right to have considered only the evidence led in the further and better-amended statement of claim and discountenanced evidence given in the amended statement of claim?
2. Whether or not the trial Court raised issue suo motu that would have warranted calling parties to address on it?
The issues raised by the Respondents are coterminous with those raised by the Appellants. The appeal will be determined on the two issues nominated by the Appellants’ learned Counsel. The said issues will be taken together.
Under issue 1, the learned Counsel to the Appellants T. R. ITANYI, ESQ traced the genesis of the action and stated that after P W1 had testified and tendered Exhibits PW1A – PW1D, the Appellants with leave of lower Court filed Further and Better Amended Statement of Claim and the testimonies of PW2 were based on the Further and Better Amended Statement of Claim. He submitted that in these proceedings the trial Judge erred when he held that the evidence given by the PW1 was no longer relevant in the determination of the action. To the learned Appellant’s Counsel, the evidence of PW1 and PW2 are the same. He stressed that the evidence of PW2 even more comprehensive in that it captures the entire facts of the case of the Appellant especially with respect to claim for special damages.
Learned Counsel to the Appellant submitted that the grouse of the Appellants in this appeal borders on the failure of the lower Court to countenance Exhibits PW1-PWD thereby declining to grant reliefs for special damages. That Exhibits PW1-PWD were pleaded, relevant and admissible. He relied on the cases of:-
1. OKONJI V NJOKANMA (1999) 14 NWLR (PART 638) 250 AT 266 and
2. OMAYE V OMAGU (2008) 7 NWLR (PART 1087) 477 AT 500-501 H-B (CA).
Learned Counsel to the Appellants contended that the Further Amended Statement of Claim made by the Appellants was done to bring the pleadings in line with evidence led by PW1 before the PW1 before the filing of Further Amended Statement of Claim which he said still formed part of the record and which according to him cannot be expunged as the lower Court had erroneously done.
According to learned Counsel to the Appellants the Amended Statement of Claim filed on 6th November 2017 still form part of the record. Therefore according to the Appellants’ learned Counsel the special damages particularized in the Statement of Claim ought to have been granted by the trial Court in the interest of justice.
He opined that the evidence of PW2 relates to all the items of special damages. That Exhibits PW1-A-D were pleaded and admitted without objection. He stated that they are documents properly admitted on record coupled with pleadings to enable this Court to grant the relief relating to special damages. He relied on the case of NEKA B. B. B. MANUFACTURING CO. LTD V A.C.B LTD (2004) 2 NWLR (PART 858) 521 AT 540-541 G-A. He relied on pages 191-195, 206-212 and 175 of the record. He submitted that the evidence led to support the claim for special damages was not challenged by the Defendants. He urge the Court to resolve issue 1 in Appellants’ favour.
On issue 2 as to whether the trial Court was right in what the Appellants called “in raising an issue suo motu without availing the parties the opportunity to address it on same”, the learned Counsel to the Appellants referred to the finding of the trial Court and stated that the learned trial Judge erred in resolving the issue raised suo motu without inviting the parties to address the Court on the issue and that this in turn amounted to violation of Appellants’ right to fair hearing. He relied on the cases of MRS M.A. DAIRO V UBN LTD & ANOR (2007) LPELR-913 (SC) and DEDE V STATE (2012) LPELR-19680 (CA). He also cited Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Learned Counsel to the Appellants also relied on the cases of:-
1. KUTI V BALOGUN (1978) 1 SC 53 AT 60;
2. OBAWOLE VS WILLIAMS (1961) 10 NWLR (PART 4771) 146;
3. OMINIYI VS ALABI (2015) LPELR-24399( SC)
That the act of the lower Court on the issue raised suo motu without an address of Counsel to the parties adversely affected the Appellants. He relied on GWEDE V INEC & ORS (2014) 10 SC 1.
He urged the Court to resolve issue 2 in Appellants’ favour.
In his response under issue 1 Learned Counsel to the Respondents ERIKI JOSEPH, ESQ. submitted that the decision of the lower Court is justified for so many reasons. That upon an amendment of pleadings, the former pleadings no longer define the issues between the parties. He relied on the cases of UBN PLC VS OSAZE (2011) 7 NWLR (PART 1246) PAGE 293 AT 311 G-H and AGBAHOMOVO V EDUYEGBE (1999) 3 NWLR (PART 594) 170 AT 186-187 H-B. He submitted that any evidence or document founded on the ceased Statement of Claim became worthless and defective and immaterial to the just determination of the Appellants’ suit. He relied on the cases of:-
1. U.A.C. V MACFOY (1962) A.C. 152;
2. BABATUNDE HAMZAT V AISATU IREYEMI SANNI (2015) LPELR (24302 (SC).
He further submitted that the Further and Better Amended Statement of Claim superseded the Amended Statement of Claim. He relied on the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V RAYMOND (2009) LPELR 482.
Learned Counsel to the Respondents submitted that the contention of the Appellants on Exhibits PW1A, PW1C and PWD-D1 being documents tendered with respect to expunged Statement of Claim in proof of special damages still formed part of the record of the Court is grossly misconceived.
That any documents not tendered along with the Further and Better Amended Statement of Claim during the trial cannot be considered in the judgment of the Court. That even if the trial Court had relied on Exhibits PW1A, PW1C, PWD-D1 in his judgment that alone will not establish the claims for both special and general damages from the available evidence before the Court.
That it is a notorious fact that for any form of development to take place in Federal Capital Territory, the necessary permits and approvals for such developments must be sought and obtained from the 2nd Respondent saddled with such responsibility.
The Respondents’ learned Counsel stated that the Appellants did not obtain permission for all developments they carried out on the land. That the Appellants’ witness admitted under cross-examination that they do not need any approval from Development Control. That the said witness had earlier said they obtained approvals.
That since the Appellants failed to obtain the necessary approvals the Respondents were right in demolishing the illegally constructed properties. That Appellants’ loss is self-inflicted. He relied on OGWUCHE V MBA (1994) 4 NWLR (PART 336) P. 36 F and IYIMOGA V GOVT OF PLATEAU STATE (1994) 8 NWLR (PART 360) 72 AT 104 C.
He submitted that the Appellants did not plead sufficient materials based on the extant pleading of the Appellants before the lower Court and as such this Court cannot accede to the request of the Appellants.
He also drew attention to the fact that the Appellants sought for declaratory reliefs and must prove them without placing reliance on the weakness or admission of Defendants. He relied on the cases of GOV. KWARA STATE V LAWAL (2007) 13 NWLR (PART 1051) 187 and ANYANRU V MANDILAS LTD (2007) 10 NWLR (PART 1043) 477-478.
He urged the Court to refuse the reliefs sought by the Appellants. On issue 2 as to whether raising an issue suo motu warrants the calling of parties to address on it, the Respondents’ learned Counsel stated that the lower Court did not raise any issue suo motu that would have warranted the calling of Counsel to the parties to address the trial Court. That the issue of amending statements of claim many times by Appellants pervaded the entire gamut of the proceedings and as such the lower Court did not need to call the parties to address it while reviewing and evaluating the evidence on record so as to arrive at just conclusion in the case. That what the trial Court did, did not amount to raising an issue suo motu. He relied on the cases of IKEANYI V ACB LTD (1991) 7 NWLR (PART 205) P. 625 and FCMB PLC V N.I.M.R (2009) NWLR (PART 1147) 526H.
That Appellants are bound by the ways and manners the learned Counsel to them conducted their case at the lower Court. He urged the Court to disallow the appeal.
The learned Counsel to the Appellants filed Appellants’ Reply Brief of Argument which is littered with a reharsh of the argument contained in the Appellants’ Brief of Argument.
An Appellant’s Reply Brief of Argument is not an avenue to readjust the Appellant’s case or submissions already made in the main Appellant’s Brief of Argument.
The purpose of a Reply Brief by an Appellant pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2021 is to reply to all new points and points of preliminary objection or any challenge to the appeal raised and argued in a Respondent’s Brief of Argument. See NATIONAL UNITY PARTY (NUP) V INEC (2021) 17 NWLR (PART 1805) 305 AT 337 A-B per JAURO, JSC who said:-
“The essence of a reply brief is not to reopen argument already canvassed in the appellant’s brief. It is to reply to new issues that have arisen in the respondent’s brief of argument. See Adekanye Komolafe v. Federal Republic of Nigeria (2018) LPELR-44496 (SC); (2018) 15 NWLR (Pt. 1643) 507; Egbele Austin Eromosele v. Federal Republic of Nigeria (2018) LPELR-43851 (SC); (2018) 11 NWLR (Pt. 1629) 60; Adeyemo Abiodun v. Federal Republic of Nigeria (2018) LPELR-43838 (SC); (2018) 11 NWLR (Pt. 1629) 86.”
The major contention of the learned Counsel to the Appellant under issue 1 is that the lower Court fell into serious error in discountenancing and expunging documents tendered through PW1 on the ground that the Further and Better Amended Statement of Claim filed on 9th March, 2018 has displaced the Statement of Claim filed on 8th May, 2017 in support of which PW1 tailored his Witness Statement on Oath and tendered Exhibit Pw1 to PW1A to PW1D. Appellant strongly submitted that inasmuch as those Exhibits were admitted in evidence without objection the lower Court was wrong to have discountenanced the said exhibits since they form part of proceedings in this appeal.
The ground for discountenancing of the said Exhibit tendered through PW1 can be found on pages 277-278 and 279-280 of the record where the lower Court captured the reasons for rejecting the documents. At pages 277-278 the trial Court found:-
“Before proceeding further, it seems to me that there is a procedural error that needs to be cleared. The Claimants’ counsel in the course of trial relied on two different Statements of Claim; one dated and filed on 8th May, 2017 and a Further and Better Statement of Claim dated and filed on 9th March, 2018.
The PW1 Joseph Ondoma gave evidence solely on the Statement of Claim of 8th May, 2017 and tendered Exhs PW1A-D.
The PW2 gave evidence first on 7th December, 2017 and after the amendment to Further and Better Statement of Claim of 9th March, 2018, the PW2 concluded his testimony on 28th May, 2018 relying on the only witness statement on oath filed by PW2, Salihu Saidu Makama. The question that needs an answer is whether the Claimant can sustain more than one Statement of Claim in a single suit. It is my opinion that amendment of a Statement of Claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective.
The follow-up question is whether evidence led on a defective Statement of Claim can be considered? The case of Alhaji Taiudeen Babatunde Hamzat Anor v. Alsaliu Ireyemi Sanni (2015) LPELR 24302 SC held thus:
“The Statement of Claim upon which the evidence of the Plaintiff is based is not a valid document and no evidence could be considered on a defective Statement of Claim. The said statement and evidence are liable to be expunged from the record.”
It is trite that you cannot put something on nothing and expect it to stand. See Skenconsult (NIG) Ltd v. Ukey (1981) 1 SC 16.
No issues could be joined on the pleadings unless the statement of claim was valid.
Further amendment was made to the Statement of Claim filed on 8th May, 2017 bringing in the Further and Better amendment of Statement of Claim filed on 9th March, 2018.”
And on pages 279-280 the learned trial Judge said:-
“This suit is on all fours with the case of Anambra State Environmental Sanitation Authority & Anor (supra). It is therefore my conclusion that Statement of Claim dated and filed on 8th May, 2017 and the Witness Statement on Oath of PW1 are automatically expunged having been replaced by the Further and Better Amended Statement of Claim with the Witness Statement on Oath on Salihu Siadu Makama as the only witness.
The law is settled that in civil cases, the burden of proof rests on the party who asserts the affirmative of the issue in question, that is the party who will fail if no evidence is given on either side. See Yusuf v Adegoke (2007) ALL FWLR (PT. 385) 384 AT 405.”
I have examined the Amended Statement of Claim filed on 8th May 2017 contained on pages 41-46 of the record of appeal. This was the Amended Statement of Claim relied upon when the Appellants as Plaintiffs opened their case on 10th October, 2017.
The Plaintiff’s Witness Statement on Oath was filed along the said Amended Statement of Claim by one Joseph Ondoma. Paragraphs 23-27 of the said Amended Statement of Claim read:-
“23. The Plaintiffs aver that the Plaintiffs engaged the services of Salbodi construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6,450,000.00 Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows:
i. Soft landscaping – preparation earthwork, planting trees, flowers and grasses.
ii. Hard landscaping- excavation. kerbs and kerbs works.
iii. Electrical works, excavation, piping, wiring fittings and and materials.
iv. Plumbing works- excavation, piping, fittings and materials The Plaintiffs shall rely on the invoice dated 4th April. 2016 issued by Salbodi Construction Limited.
24. The Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira) the Plaintiffs hereby plead and shall rely on an invoice from FOREVER FURNITURE LIMITED dated 6th September, 2016.
25. The Plaintiffs spent a total sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) for tiling which includes materials and labour and were destroyed by the action of the Defendants. The plaintiffs hereby plead and shall rely on an invoice in the sum of N3,040.000.00 (Three Million and Forty Thousand Naira only) 19th August, 2016 issued by SUNRAPH GLOBAL CONCEPTS NIG LTD.
26. The Plaintiffs further aver that the Plaintiffs erected 20 (twenty) car Ports which were destroyed by. the action of the Defendants.
The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016.
27. Aggrieved by conduct of the Defendant, the Plaintiffs claim the following reliefs against the Defendant:-
i. A DECLARATION that the demolition and destruction of the Plaintiffs’ recreational facilities on its premises located at Gimbiya Street, Garki Abuja by the defendants is unlawful and illegal and a violation of the Plaintiffs’ right.
ii. A DECLARATION that the Plaintiffs are entitled to damages from the Defendants for the loss incurred by the Plaintiffs as a result of the conduct of the Defendants.
iii. N19,330,000.00 (Nineteen Million Three Hundred and Thirty-Four Thousand Naira) being special damages for the cost of landscaping, plumbing work, electrical work, inflatable devices and carports destroyed by the defendants on the Plaintiffs’ park and recreational facility.
iv. N10,000,000.00 (Ten Million Naira) being general damages for the pains and trouble caused the Plaintiff by the Defendant.
v. The cost of this action.”
As can be seen above the quoted paragraphs relate to the claim of the Appellants for Special Damages. The Appellants pleaded documents it sought to rely upon to establish the Special Damages.
The said Plaintiff’s witness Statement on Oath filed along with the Amended Statement of Claim filed on 8/5/2017 reads in paragraphs 11-14 as follows:-
“11. That the Plaintiffs engaged the services of Salbodi Construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6.450.000.00 (Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows:
i. Soft landscaping – preparation earthwork planting trees, flowers and grasses.
ii. Hard landscaping- excavation, kerbs and kerbs works.
iii. Electrical works, excavation, piping, wiring fittings and materials.
iv. Plumbing works- excavation, piping, fittings and materials The Plaintiffs shall rely on the invoice dated 4th April, 2016 issued by Salbodi Construction Limited.
12. That the Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira).
13. That the Plaintiffs spent a total sum of N3,040,000.00 Three Million and Forty Thousand Naira only for tiling which includes materials and labour also destroyed by the action of the Defendants.
14. That the Plaintiffs erected 20 (twenty) car Ports which were destroyed by the action of the Defendants. The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016.
15. That I pray this Honourable Court to grant the Plaintiffs’ claims.
16. And I make this solemn declaration conscientiously believing same to be true, correct and in accordance with the provisions of the Oaths Act.”
The above paragraphs of PW1’s Witness Statement were in tandem with paragraphs 23-27 of the Amended Statement of Claim filed on 8/5/2017.
For reasons best known to the Appellants they decided to further amend the Amended Statement of Claim filed on 8/5/2017 and the lower Court allowed them thus culminating into the FURTHER AND BETTER AMENDED STATEMENT OF CLAIM filed on 8/3/2018.
It is noteworthy that the Appellants pleaded the documents tendered through PW1 in the latest Amended Statement of Claim christened “FURTHER AND BETTER AMENDED STATEMENT OF CLAIM” filed on 8/3/2018 paragraphs 26-30 on pages 113-174 of the record of appeal thereof as follows:-
“26. The Plaintiffs aver that the Plaintiffs engaged the services of Salbodi construction Limited for landscaping. electrical and plumbing works on the plots of land where the Plaintiffs spent the sum of N6 450 000.00 Six Million Four Hundred and Fifty Thousand Naira only to develop the park and recreation centre as follows:
i. Soft landscaping – preparation earthwork planting trees, flowers and grasses.
ii. Hard landscaping- excavation, kerbs and kerbs works.
iii. Electrical works, excavation, piping, wiring fittings and materials.
iv. Plumbing works- excavation, piping, fittings and materials.
The Plaintiffs shall rely on the invoice dated 4th April,
2016 and 1 Ith May 2016 respectively issued by Salbodi Construction Limited.
27. The Plaintiffs purchased inflatable devices (made of Giant sides water slide, two bouncing castles and water pod with six canoes) for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira the Plaintiffs hereby plead and shall rely on an invoice from FOREVER FURNITURE LIMITED dated 6th September, 2016.
28. The Plaintiffs spent a total sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) for tiling which includes materials and labour and were destroyed by the action of the Defendants. The plaintiffs hereby pleads and shall rely on an invoice in the sum of N3,040,000.00 (Three Million and Forty Thousand Naira only) 19th August, 2016 issued by SUNRAPH GLOBAL CONCEPTS NIG LTD.
29. The Plaintiffs further aver that the Plaintiffs erected 20 (twenty) car ports which were destroyed by the action of the Defendants. The Plaintiffs plead and shall rely on an invoice in the sum of N3,740,000.00 (three Million Seven Hundred and Forty Thousand Naira only) issued by TIM BEST COOL SHADE dated 1st April, 2016.
30. The Plaintiffs plead particulars of special damages as follows: –
1. Soft landscaping – preparation earthwork planting trees, flowers and grasses. N450,000.00 (Four Hundred and Fifty Thousand Naira only.
2. Hard landscaping- excavation. kerbs and kerbs works – N4,000,000.00 (Four Million Naira only).
3. Electrical works, excavation, piping, wiring fittings and materials- N1,500,000.00 (One Million Five Hundred Thousand Naira only).
4. Plumbing works- excavation, piping. fittings and materials N500,000 (Five Hundred Thousand Naira only).
5. 17 units of carports at the rate of N220, 000.00 each for N3,740,000 (Three Million Seven Hundred and Forty Thousand Naira only).
6. Tiling – materials and labour for N3,040,000.00 (Three Million and Forty Thousand Naira).
7. Inflatables: Giant sides water slide two bouncing castles and water pod with six canoes for children recreation in the park which were also destroyed by the action of the Defendants in the sum of N6,100,000.00 (Six Million One Hundred Thousand Naira only).
8. The sum of special damages N19, 330,000.00 (Nineteen Million, Three Hundred and Thirty-Four Thousand Naira only. “
I agree with the statement of the law as stated by the lower Court to the effect that an Amendment of Statement of Claim is for the purpose of curing a defect in an existing Statement of Claim and replacing it with a new one. The same is true of various types of pleadings including affidavit evidence upon an amendment.
I am therefore of the settled view that as at 8th March, 2018 the only legal and relevant Statement of Claim for the trial is the “FURTHER AND BETTER AMENDED STATEMENT OF CLAIM” filed on 8/3/2018.
The position of the law on amendment of process or processes of Court in a suit or action is very clear and settled to the effect that once an amendment is made or granted by the Court seised of the matter to any process, the earlier processes ceased to be in existence and no longer defines the issues between the parties to the action or suit. Therefore, the position in the Appellant’s case herein is that upon the filing of the aforesaid Further and Better Amended Statement of Claim by the Appellants on 8/3/2018, the Amended Statement of Claim filed on 8/5/2017 ceased to be the pleading defining the issues in the Appellant’s suit. The Further and Better Amended Statement of Claim filed on 8/3/2018 replaced the Amended Statement of Claim filed on 8/5/2017 and the extant Further and Better Amended Statement of Claim related back to the date the action was first filed in Court. See:
1.JOHN OFORISHE V. NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PART 1602) 35 at 56 G-H to 57 A per RHODES- VIVOUR JSC said:
“After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3rd May 1995 and the further amended statement of defence filed on 7th June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties. The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi Ors v. Mc Gregor (1974) II SC p. 133; C.G.D.G. (Nig) Ltd Idorenyin (2015) 5-6 SC (Pt. II) p. 1; (2015) 8 NWLR (Pt.1475) 149.”
2. ALHAJI FATAI O. YUSUF V. MOBIL OIL NIGERIA PLC (2019) 13 NWLR (PART 1689) 374 at 392 C-H per OKORO, JSC who said:
“One other issue is that the appellant/applicant admitted in paragraph 3(J) of his supporting affidavit that the judgment of the trial Court in this matter was based on the incompetent 4th amended statement of claim. It could not have been otherwise because the principle of law governing the amendment is that an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore, when a writ of summons or statement of claim as in this case is amended it dates back to the date of the original issue of such writ or filing of the statement of claim. Consequently, the action will continue as if the amendment has been inserted from the beginning. See Victor Adegoke Adewumi & Anor v. The Attorney General of Ekiti State (2002) 2 NWLR (Pt. 751) 47; (2002) 1 SC page 47: Oguma v. IBWA (1988) 1 NWLR (Pt. 73) 658: Sneade v. Wotherton (1904) 1 KB 297: Brittania-U (Nig.) Ltd. v. Seplat Petroleum Dev. Company Limited Ors (2016) LPELR-40007 (SC). (2016) 4 NWLR (Pt. 1503) 541: UBA Plc v. Abdullahi(2003) 3 NWLR (Pt. 8(7) 359 at 378 paragraphs C- F.
The law is quite clear that once an amendment is ordered what stood before amendment is no longer material before the Court and no longer defines the issues to be tried. It takes effect from the commencement of the action. See Vulcan Gases Ltd. v. Gesellschaft Fur Industries. Gasvenvertung (GIV) (2001) 5 SC (Pt.1) 1 . (2001) 9 NWLR (Pt. 719) 610: Col. Rotimi v. MacGregor (1974) 11 SC 133 at 152: Osita Nwosu v. Imo State Environmental Authority (1990) 2 NWLR (Pt. 135) 688.
(Underline mine)
The decision of the lower Court on the state of pleadings is no doubt based on wrong premises or pedestal.
The fact that an amendment was made to the Statement of Claim to which PW 1 testified about by adoption of his Witness Statement of 8/5/2017 will not automatically wipe off his oral and documentary evidence particularly Exhibits P W1A, PW1B, PW1C and PW 1D-D1 because the said documents were also pleaded in the Further and Better Amended Statement of Claim which is deemed to be the Statement of Claim upon which PW1 testified, on 10/10/2017 because the extant Further and Better Amended Statement of Claim is deemed in law to be the statement of claim originally filed on the date the action was initiated and it covered the evidence of PW1 contained in the Witness Statement on Oath. The probative value or otherwise of the oral and documentary evidence aforesaid is another matter. To that extent, the Appellants’ learned Counsel is on a strong wicket.
Now to the probative value of evidence of PW1 and PW2. The documents in question which are Exhibits PW1A, PW1B, PW1C and PW1D-D1 were admitted during trial through PW1. It is on record that Exhibit PW1A was issued to the 1st Appellant by a company called Forever Furniture Limited while Exhibit PW1B was also issued by Sunaph Global Concepts Nigeria Ltd to the 1st Appellant. Exhibit PW1C was issued to the 1st Appellants by TIM BEST COOL SHADE. Exhibit PW1-D-D1 were issued to the 1st Appellant by SALBODI CONSTRUCTION LIMITED, KUBWA BLOCK INDUSTRY on 4/4/2016, while Exhibit PW1-D2 was also issued by the maker of Exhibit PW1-D1.
These are the exhibits principally relied upon by the Appellants for the claim or relief in the sum of N19,330,000.00 (Nineteen Million Three Hundred and Thirty Thousand Naira) as special damages against the Respondents.
The law is settled that a claim or relief for special damages must be clearly or succinctly pleaded by the Claimant and it must be strictly proved by credible and believable evidence as such relief will not be granted on the fact that the facts or documents relied upon were not contradicted, see VITAL INVESTMENT LTD VS CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (PART 1820) 205 AT 247 B-H to 248 A-C per ABOKI, JSC who said:-
“The above dictum of the Court below notwithstanding, learned counsel for the Respondent was on terra firma when he submitted that even if the sum paid did not include the profit that Appellant was to make, the loss contemplated, if at all, ought not to have been awarded as it was neither specifically pleaded nor strictly proved at the trial in accordance to the specifications laid down in numerous authorities, and I shall make reference to a few of them.
In Akinkugbe v. Ewulum Holdings (Nig.) Ltd & Anor. (2008) LPELR 346 (SC), (2008) 11 NWLR (Pt. 1098) 375 this Court held that:
“The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should plead its particulars and lead credible and admissible evidence of such character as would establish that he is indeed entitled to an award under that head. The evidence of particulars of the losses must be known exactly and accurately measured before the trial Court. “
Similarly, in AJigbotosho v. RCC (2018) LPELR 44774 (SC), (2019) 3 NWLR (Pt. 1659) 287 this Court held that:
“…Special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible…”
See also Onyiorah v. Onyiorah & Anor (2019) LPELR 49096 (SC); (2019) 15 NWLR (Pt. 1695) 227.
The summary of all I have been saying is that the loss of profit being an item of special damages ought to have particularized in the pleading and specifically proved at the trial. The pleading and evidence tendered on behalf of the appellant fell far short of the stipulated requirements.”
At page 257 C-H my Lord OGUNWUMIJU, JSC had this to say:
“Special damages must be properly pleaded and strictly proved to the satisfaction of the Court. See G.K.F Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009) 7 S.C.N.J. Pg. 92; (2009) 15 NWLR (Pt. 1164) 344.
In the award of damages, there is need for the Court to take into consideration all minute aspects of the case, the custom of the trade, the law applicable to do the contract, the vagaries of life, e.t.c. Courts are not just to accept evidence placed before it in prove of the award in toto. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) 6 S.C.N.J. Pg. 506; (2011) 17 NWLR (Pt. 1276) 422.
My Lords, the 1st and 2nd heads of claim are one for special damages. It is for penalty incurred on borrowed funds. A claim for special damages are particular damages which results from the particular circumstances of the case. They are usually not inferred from the nature of the act and they do not follow in the ordinary course, therefore, they must be claimed specially and proved. See British Airways v. Mr. P.D. Atoyebi 120141 6 S.C.N.J. Pg. 634; (2014) 13 NWLR (Pt. 1424) 253.
The basis of the claim for special damages as stated earlier is that the Respondent knew of the loan particulars between the Appellant and Summit Finance and was therefore liable to pay penalty as special damages. The Appellant was not able at trial to produce any documentary evidence to show that the penalty charges were known to and undertaken by the Respondent. There is nothing on the face of the LPO- exhibit 1 & 2 to show this. There is therefore no credible evidence to substantiate proof of entitlement to special damages, that claim was rightly rejected by the lower Court.
The Court will not award special damages based on incomplete and inconclusive or uncontradicted oral evidence without documentary evidence of same. See Mr. Felix Nwoye Adim v. Nigerian Bottling Company Ltd. and Another (2010) 9 NWLR (Pt. 1200) Pg. 558.”
I have calmly examined the exhibits tendered.
In this case, PW1 and PW2 were not the makers of the documentary evidence tendered by them particularly Exhibits PW1-A, PW1-B, PW1-C and PW1D-D2 tendered by the 1st PW who merely tendered the documents without any evidence on the contents of the document. For example, Exhibit PW1A stated more than one item and put the price at N6,100,000.00 (Six Million, One Hundred Thousand Naira) without stating the costs of each items while Exhibit PW1B talked of tiling and stating that materials and labour for 640m2 amounted to N30,040,000 without any evidence of the value of the items or materials purchased. Exhibit PW1C talked of car ports of 7.5m by 5m at rate of N220, 000 each totaling N3, 740, 000 yet in the body of the Exhibit it is written “one item only”. In Exhibit PW 1D, it is stated that landscaping – preparation, earthwork, planting trees, flowers and grasses cost N450, 000 (Four Hundred and Fifty Thousand Naira) without any details of how much each of the items listed costs. The same is true of hard-landscaping which was listed to include excavation, kerbs, and kerbs works put at total cost of N4,000,000 (Four Million Naira) without stating how much each head of items costs. The same is true of Exhibit PW D2 dealing with Electrical works, excavation, piping, wiring fittings and materials- costing N1,500, 000.00 (One Million Five Hundred Thousand Naira) without evidence of how much went into each of the items listed. On the same Exhibit PW1D2 is plumbing works which is also stated to include – excavation, piping, fittings and materials N500,000 (Five Hundred Thousand Naira) without stating also how much each of the items listed costs.
To my mind, it cannot be said that the Appellants proved any of the items of special damages with any clarity at all.
To compound the problems of the Appellants, they failed to call any person from the companies that issued invoices and sold materials to them. They also failed to call any worker or group of workers or contractors that carried out all the works and supplied all materials listed in Exhibits PW1A, PW1B, PW1C and PW1D- D1.
The exhibits tendered have no probative value because they were not tendered by the makers or persons who had knowledge of their contents. The oral testimonies of the PW1 did not support the contents of the aforesaid exhibits which they did not make, see;
1. IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:-
“It is settled law that a party who did not make a document is not competent to give any evidence on it. This is the situation here. PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity. “
2. WIKE EZENWO NYESOM VS HON. (DR) DAKUKU ADOL PETERSIDE & ORS(2016) 7 NWLR (PART 1512) 452 AT 522 where KEKERE-EKUN, J SC, who said:-
“In Belgore v. Ahmed (supra) this Court emphasised the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document. Furthermore, in Buhari v. NEC (supra) at 391 it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement.”
3. E. N. OKEREKE VS NWEZE DAVID UMAHI & ORS (2016) 1 NWLR (PART 1524) 438 AT 472 A-H per NWEZE, JSC who said:-
“Surely, since the witness (PW 1), was not “in any polling unit in Ebonyi State on the day of election”; “had never worked at INEC office”; “did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base” and “was not part of the team that came to Abakaliki for the exercise”, the lower Court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was “ignorant of (their) content”.
As this Court explained in Buhari v. I.N.E.C (2008) 18 NWLR (Pt. 1120) 246, 391-392, paras H-A.
“Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.”
4. BASHIRU POPOOLA V THE STATE (2018) 10 NWLR (PART 1628) 485 AT 496 H TO 497 A-B per RHODES-VIVOUR, JSC.
In the result, the Appellants failed to give cogent or credible evidence to support their claim for Special Damages.
The finding of the lower Court cannot be faulted. In any event, looking at the contents of the documents tendered they are of no probative value.
Issue 1 is resolved against the Appellants.
The central focus of issue two (2) is that the lower Court raised an issue suo motu without affording the parties opportunity of addressing the Court on it. What the Appellants considered to be an issue raised suo motu can be found on pages 277-278 where the learned trial Judge said:-
“Before proceeding further, it seems to me that there is a procedural error that needs to be cleared. The Claimants’ counsel in the course of trial relied on two different Statement of Claim; one dated and filed on 8th May, 2017 and a Further and Better Statement of Claim dated and filed on 9th March, 2018.
The PW1 Joseph Ondoma gave evidence solely on the Statement of Claim of 8th May, 2017 and tendered Exhs PW1A-D.
The PW2 gave evidence first on 7th December, 2017 and after the amendment to Further and Better Statement of Claim of 9th March, 2018, the PW2 concluded his testimony on 28th May, 2018 relying on the only witness statement on oath filed by PW2, Salihu Saidu Makama. The question that needs an answer is whether the Claimant can sustain more than one Statement of Claim in a single suit. It is my opinion that amendment of a Statement of Claim is for the purpose of curing a defect in the Statement of Claim and replacing it with a brand new statement. The latter comes to cure the defect on the former and therefore the former is adjudged defective.
The follow-up question is whether evidence led on a defective Statement of Claim can be considered?”
One of the principles of law that is settled and inviolate is that parties as well as the Court are severely bound by the pleadings of the parties in a cause or matter. The Court cannot raise an issue suo motu and use the point so raised in the absence of the parties against anyone of the parties without affording the parties to the dispute opportunity to address the Court on the issue so raised suo motu. See: LEADERS & CO LTD VS. BAMAIYI (2010) 18 NWLR (PART 1225) 329 AT 338 D- G per GALADIMA, JSC who said:-
“Indeed, with the consensus of the parties that the Court below erred in law to have raised the issue as to the competence of the notice of appeal suo motu, without affording the parties an opportunity to address it on the point, this has resolved the first issue. This Court in KATTO’S case (supra) held thus:
“On no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the patties thereon without inviting them or counsel on their behalf to address the Court on the point. If it does so, it will be in breach of a patty’s fundamental right to fair hearing. In the instant case, the Court of Appeal was wrong in raising the issue of jurisdiction suo motu and proceeding to decide the appeal thereon without inviting Counsel to address it thereupon.”
The appellants were denied fair hearing at the Court below. This Court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See Adigun v. A.G. of Oyo State (No. 2) (1987) 2 NWLR (Pt.56) P.197 Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659.”
However notwithstanding that a Court should avoid raising an issue suo motu or initiating controversy in a matter lest there is a breach of right to fair hearing, a Court is nevertheless entitled within some settled exceptions to raise an issue suo motu in the interest of justice in deserving cases, especially where the facts in support of the issue allegedly raised suo motu exists in the litigation. See;
1. ENGR. CHINE-DUM O. ANYA VS BARR. ONWUCHEKWA O. ANYA & ORS (2020) 8 SCM 16 at 25 D- H to 26 A per ABBA AJI, JSC who said:
“The facts in this case do not show that this was the case. The Appellant’s case before the trial Court was founded on the fact that the Will left by the deceased was forged wherein in proof or otherwise, a handwriting expert testified, which was in favour of the Respondents. How then did the issue of forgery become fresh on appeal? The lower Court being confronted with the whole facts and as reflected in the record, discovered that the issue of forgery was well founded and cannot be a new issue calling for address of parties. I think the Appellant is lost as to the distinction between raising an issue suo motu and looking into the case file by the Court to determine a matter. This was touched by Per OKORO, JSC in Akeredolu v. Abraham & Ors (2018) LPELR-44067 (SC), when he inter alia proposed that:
“I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior Counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
2. KERIAN IKPARA OBASI VS. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR-40704 (SC) per OKORO, JSC.
It was the Appellants’ learned Counsel in this case that drew the attention of the learned trial Judge to the existence of two of the pleadings filed by the Appellants and the fact that PW1 testified on one while the PW2 testified on the other. For case of reference it is pertinent to refer to page 232 of the record where the Appellants’ learned Counsel in the course of his Final Written Address before the lower Court referred the said Court to the Appellants’ pleadings as follows:-
“1.2 The Claimants opened their case on the 10th of October, 2017 with Mr. Joseph Oudorna, PW1 (now deceased). The matter was then adjourned to the 1st of November, 2017 for cross-examination. However, the Defendants were neither in Court nor represented by Counsel on the 1st of November, 2017 and upon an application by the Claimants’ Counsel, the Defendants were foreclosed from cross-examining the PW1 by an order of this Honourable Court.
1. 3. The point must be made that the testimony of PW1 is contained in the Amended Statement of Claim dated and filed on the 8th of May, 2017. PW2 commenced his testimony on the 7th of December, 2017 on the basis of the Further Amended Statement of Claim dated and filed on the 6th of November, 2017. Midway into the testimony of PW2, Claimants sought an adjournment to again amend their Claim. This necessitated the filing of the Further and Better Amended Statement of Claim on the 9th of March, 2018 earlier mentioned. The testimony of PW2 is therefore the one contained in the Further and Better Amended Statement of Claim. At the proceedings of 28th May, 2018 the Claimant’s Counsel informed this Honourable Court of the demise of the PW1.
1.4. The relevant processes to be considered in the determination of this suit are therefore the Amended Statement of Claim dated and filed on the 8th of May, 2017 which contains the testimony of PW1 and the Further and Better Amended Statement of Claim which captures the testimony of PW2. The Defendants who were represented by counsel in the proceedings did not file any process but availed themselves of the opportunity to cross-examine the PW2. On the 10th of October, 2018 when this matter was adjourned for defence, the Defendants and counsel were not in Court consequent upon which this Honourable Court made an order foreclosing the defendants from entering a defence.”
The learned trial Judge duly dealt with issues and matters to which his attention was drawn in the course of trial.
Therefore, there is already in existence before the lower Court the two Amended Statement of Claims which the Appellants claimed they were relying upon. It has been decided under issue one based on the trite position of the law that once there is an amendment to an existing process like Statement of Claim, Statement of Defence, such earlier process ceases to be in existence and no longer define the issues in controversy between the parties. It is the latest amended process that will govern and define the issues the trial Court is called upon to adjudicate upon.
The facts before the lower Court with respect to the pleadings of the Appellants and decision of the trial Judge on it cannot be said to be a matter raised or taken suo motu in the absence of the parties. And in any event, the issue as to which of the Amended Statement of Claim the Appellants can rely upon and upon which the lower Court could render its decision is a matter of law and within the lower Court’s jurisdiction to decide without any recourse to the parties or their learned Counsel. See;
1. ADEBAYO SEGUN ONI V. JOHN KAYODE FAYEMI & ORS (2019) LPELR – 49299 SC 1 AT 18-20 per SANUSI, JSC.
2. MR. MICHAEL IDACHABA & ORS VS. THE UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2021) 1 SCM 53 at 68 C-H per MUSA ABBA AJI, JSC who said:
“Furthermore, a Judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. A Court is not a Zombie or robot to go along with the cliché “garbage in, garbage out”. The Court exists to determine and examine with due diligence and sense, matters before it in its pursuit of Justice. Therefore, where it would enthrone injustice, the Court will not close its eyes to any irregularity however shown on the record without suo motu dealing with it. See Per PETER-ODILI, JSC in Ogar & Ors v. Igbe & Ors (2019) LPELR-48998(SC) (PP. 42-44, Paras. C-A), (2019) 7 SCM, 170.
Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in Omokuwajo V. FRN (2013) LPELR-20184 (SC) (PP. 37-38, Paras. F- D), (2013) 6 SCM, 193 when he held that:
The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction.
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) when on the face of the record, serious questions of the fairness of the proceedings is evident.”
It was within the jurisdiction of the lower Court to hold that it was the Further and Better Amended Statement of Claim filed on 9th March, 2018 that defined the issues before the lower Court between the parties to this appeal.
No miscarriage of justice has been occasioned. The contention of the Appellants’ learned Counsel that the lower Court raised the issue suo motu is misconceived and cannot be sustained.
Issue 2 is hereby resolved against the Appellants.
In the result, the Appellants’ appeal is profusely lacking in merit, as the two (2) issues raised by the Appellants for the determination of the appeal have been resolved against them.
Consequently, the judgment of the High Court of Justice, Federal Capital Territory delivered on 2nd day of July, 2019 (Coram: HON. JUSTICE A. O. OTALUKA) IS HEREBY AFFIRMED.
There will be no Order as to costs.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother, PETER OLABISI IGE, JCA, dismissing the appeal.
The submission of the learned Counsel to the Appellants that the trial Court ought not to have discountenanced the documents tendered through PW1 because it was based on a Statement of Claim which was later amended is not misguided. This is based on the principle that an amendment dates back to the original date of filing, the amended process takes effect from the date of original pleading and not the date the amendment was made. See the decision in REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG V. NAMA (2014) LPELR – 22372 (SC) that;
“…There is no modicum of doubt that the Appellant herein commenced this action at the High Court with the Name “Airline Operators of Nigeria” Both parties attest to this as the facts are sacrosanct on it. The matter was prosecuted with that name until the Appellant woke up from slumber and realized that such a name was unknown to law, It then filed a motion to have the name corrected which the learned trial Judge obliged on the date judgment in the matter was delivered. That amendment, with all intents and purpose took effect from the date of the originating process filed. This is so because an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore, when the learned trial Judge granted the amendment, it dated back to when the Originating Summons was issued and the action would continue as if the amendment was inserted from the beginning. (Emphasis mine). ” Per OKORO, J.S.C. (See also ADEWUMI V. ATTORNEY-GENERAL, EKITI STATE, (2002) 2 NWLR (pt.751) 474, IMONIKHE V. ATTORNEY- GENERAL, BENDEL STATE (1992) NWLR (pt. 248) 396, OJAH V. OGBONI (1976) 1 NMLR 95, OKOLO V. UNION BANK OF NIGERIA LTD (1999) 10 NWLR (pt. 623), SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD V. AMBAH (1999) 3 NWLR (pt. 593) 1).
The evidence and testimony of PW1 remains valid because the amendment made to the Statement of Claim does not affect the evidence adduced through PW1. The trial Court wrongly discountenanced Exhibits PW1A, PW1B, PW1C and PW1D-D1 because the said Exhibits which were pleaded and tendered based on the original Statement of Claim were still pleaded in the Further and Better Statement of Claim.
The law is that evaluation of evidence is primarily the function of the trial Court. Interference by an appellate Court can only occur where and when the trial Court fails to evaluate such evidence at all or fails to do so properly. See MAINAGGE V. GWAMMA (2004) LPELR-1822 (SC), ABISI V. EKWEALOR (1993) 6 NWLR (PT. 302) 643, ATOLAGBE V. SHORUN (1985) 1 NWLR (PT. 2) 360; and OBODO V. OGBA (1987) 2 NWLR (PT. 54) 1.
The evaluation of documentary evidence on the other hand is not within the exclusive preserve of the trial Court. The appellate Court just like the trial Court is also competent and has the power to evaluate documentary evidence. This is because documents speak for themselves so the demeanour of the witness tendering the document is irrelevant. Where the issue before the appellate Court centres on the assessment or consideration of documentary evidence tendered in the proceedings as distinct from the credibility of witnesses as in the instant case, the appellate Court is not foreclosed by the views of the learned trial Judge on the said documentary evidence from evaluating and making its own findings thereon. Since documentary evidence form part of the Records transmitted to the appellate Court, it is well within the purview of the appellate Court to evaluate such evidence where the trial Court failed to do so or failed to evaluate the said evidence properly. By a plethora of decisions, this Court is in as good a position as the trial Court to evaluate and ascribe probative value to documentary evidence. In the case of IWUOHA v. NIPOST (2003) 4 S.C. (PT. 11) 37, the Apex Court held thus;
“I should say that evaluation of a document is not within the exclusive preserve of the trial Judge. Both the trial Judge and the appellate Judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial Judge, the document as exhibit. Therefore, where the finding of a trial Judge on a documentary evidence is perverse, an appellate Judge will easily see the perversion, and employ his appellate power to correct it “Per TOBI, J.S.C. (See also ARIJE V. ARIJE & ORS. (2018) LPELR-44193 (SC), MAFIMISEBI & ANOR. V. EHUWA & ORS. (2007) LPELR-1812 (SC). UNION BEVERAGES LTD V. PEPSICOLA INT’L LTD & ORS. (1994) LPELR- 3397 (SC), GONZEE (NIG) LTD V. NIGERIAN EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL & ORS. (2005) LPELR-1332 (SC), CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD V. AKINGBADE (2016) LPELR-40437 (SC), SALISU & ORS. V. ODUMADE & ANOR. (2010) LPELR-2995 (SC), OGUNDALU V. MACJOB (2015) LPELR-24458 (SC). FSB INTERNATIONAL BANK LTD V. IMANO (NIG.) LTD. (2000) 11 NWLR (Pt.679) 620, AGBAREH & ANOR- V. MIMRA & ORS. (2008) LPELR-43211 (SC), OGBEE V. OGAH & ORS. (2019) LPELR-48864 (CA), DIKIBO V. IBULUYA (2006) LPELR-9811 (CA), LEAD MERCHANT BANK LTD V. SALAMI & ORS. (2007) LPELR-8600 (CA) and NWOSU V. ONWUKA & ANOR. (2020) LPELR-50639 (CA).
Having found that the trial Court wrongly discountenanced the abovementioned documentary evidence tendered by the Appellants, this Court is empowered by Section 15 of the Court of Appeal Act, 2004 to step into the shoes of the trial Court and evaluate the evidence.
Exhibits PW1A, PW1B, PW1C and PW1D-D1 are documentary evidence which form part of the Records before this Court. The said Exhibits have been duly and succinctly evaluated in the lead judgment and were found to be lacking in probative value.
For this reason and fuller reasons expounded in the lead judgment, I too hereby dismiss this appeal as lacking in merit.
MOHAMMED MUSTAPHA, J.C.A.: I read the draft judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I agree with the reasoning and adopt the conclusion therein as mine.
Appearances:
T. R. AGBANYI. For Appellant(s)
E. JATTO, with him E. EFFIOK. For Respondent(s)
