MOTHERCAT NIGERIA LIMITED v. REGISTERED TRUSTEES OF THE FULL GOSPEL ASSEMBLY NIGERIA (2013)

MOTHERCAT NIGERIA LIMITED v. REGISTERED TRUSTEES OF THE FULL GOSPEL ASSEMBLY NIGERIA

(2013)LCN/6612(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/C/234/2012

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

MOTHERCAT NIGERIA LIMITED Appellant(s)

AND

REGISTERED TRUSTEES OF THE FULL GOSPEL ASSEMBLY NIGERIA Respondent(s)

RATIO

WHETHER OR NOT A TRAVERSE THAT A DEFENDANT IS NOT IN A POSITION TO ADMIT OR DENY AVERMETS IN A PLAINTIFF’S PLEADINGS IS INSUFFICIENT

There is considerable force in this submission. The rationale of all binding authorities on this point is that a traverse that a defendant is not in a position to admit or deny averments in the plaintiffs pleadings and will, at the trial, put the plaintiff to the strictest proof thereof, is insufficient, Okike v Onah (1999) LPELR; Daniyan v Iyagin [2002] FWLR (Pt 120) 1805; [2002] 7 NWLR (Pt 760) 345; Oseni and Ors v Dawodu and Ors (1994) LPELR; Asafa Foods Factory Ltd v Alraine; Nwadike v Ibekwe; Lawal v Dada; Ayodele James v Mid Motors. PER NWEZE, J.C.A.

THE IMPLICATION OF A GENERAL TRAVERSE

We acknowledge that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence by means of the general traverse had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to proof of the allegation in that paragraph, ACE Jimona Ltd v NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v Nnacho and Ors (1965) NMLR 28. It has, indeed, been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied, Lemezie v Onuaguluchi [1995] 12 SCNJ 120. As shown above, in the opening paragraph of the Statement of Defence, the appellants [as defendants] employed the mode of pleading known as general traverse. In the words of Mohammed JSC in Ugochukwu v Unipetrol (Nig) Plc (2002) LPELR-3321 (SC), 7, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied. According to the eminent jurist, it is not correct that, in Lewis and Peat (NRL) Ltd v Akhimien, the apex court held that a mere traverse of material facts is not enough to deny such facts.
In our humble view, the lower court’s error was that it did not distinguish between the general traverse in the opening paragraph and the averment in paragraph 1 of the Statement of Defence. In the said paragraph 1, the defendants pleaded that they were not “in a position to admit or deny [the particular allegation in the Statement of Claim] and will, at the trial, put the plaintiff to proof.” It is now firmly established that this sort of plea amounts to insufficient denial, see, per Mohammed JSC in Ugochukwu v Unipetrol (Nig) Plc (supra), approvingly, adopting Harris v Gamble (1878) 7 Ch.D 877; Iguh JSC in Okeke v Onah (1999) LPELR; Daniyan v Iyagin (2002) FWLR (Pt 120) 1805; [2002] 7 NWLR (Pt 760] 345; Oseni and Ors v Dawodu and Ors (1994) LPELR; Asafa Foods Factory Ltd v Alraine LPELR; Lewis and Peat; Nwadike v Ibekwe ; Lawal v Dada; Ayodele James v Mid Motors. The implication of the above position of the apex court is that contrary positions by lower courts [including this court] were taken per incuriarn, see, for example, Dairo v Registered Trustees [which purported to nibble at the conclusion, unmistakably, arrived at by the Supreme Court in the line of cases cited above]. If any further authority is required for our above conclusion, we pray in aid the views of Oputa JSC in Akintola and Anor v Solano (1986) LPELR-360-SC; [1986] 2 NWLR (Pt 24) 598. According to the accomplished jurist, the Law and Rule of pleadings do allow a general traverse [such as the defendants employed in the opening paragraph of the Statement of Defence], the only effect of which is to cast on the plaintiff the burden of proving the allegations, thus, generally, denied, citing with approval ACE Jimona v NECC Ltd; Wamer v Sampson (1959) 1 QB 297, 310, see page 40 of Akintola and Anor v Solapo (supra); Uwais JSC in Osafile and Anor v Odi and Anor (1994) LPELR-SC 2784, placing reliance on the views of Lewis JSC in Mandillas and Karaberis Ltd v Apena (1969) NMLR 199, 392-393; per Denning MR in Warner v Sampson (supra); ACE Jimona v NECC Ltd. PER NWEZE, J.C.A.

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal [as plaintiffs] took out a Writ of Summons against the appellants herein [as defendants] at the High Court of Akwa Ibom State, holden at Uyo. They claimed the following reliefs from the appellants as defendants:

(a) The sum of N50,000,000.00 (Fifty Million Naira) as general damages for the damage to the respondents’ building at Nwaniba Road, Nsukara Offot, Uyo, and

(b) An order directing the appellant to immediately construct suitable and fitting exit for body of water out of the building premises.

The matter went to trial on the settled pleadings. At the conclusion of the case, the court [hereinafter referred to as “the lower court”] found for the plaintiffs. This appeal is the expression of the defendants/appellants’ dissatisfaction with the outcome of the proceedings. From their grounds of appeal, the appellants distilled the following issues for the determination of their appeal. They framed the said issues thus:

i. Whether from the Statement of Defence, the defendant/appellant did not challenge the legal status of the plaintiff to necessitate the plaintiff proving same?

ii. Whether in the execution of the contract in issue, the defendant/appellant was an agent of or an independent contractor to the Akwa Ibom State Government (a disclosed principal)?

iii. Whether from acceptable evidence on record, the plaintiff/respondent had proved her case to entitle her to general damages of N30,000,000.00 (Thirty Million Naira) against the defendant?

iv. Whether from the proceedings, evidence and judgment on record, the learned trial judge did not substitute the evidence before the court with his own observations at the locus to give judgment in favour of the plaintiff/respondent and if he did, whether that was proper in law?

On their part, the respondent formulated the same issues in these terms:

(i) Whether in the circumstances of the case, the appellant is (sic) an independent contractor.

(ii) Whether the decision suo motu by the court to visit the locus in quo and the visit to the locus in quo occasioned miscarriage of justice.

(iii) Whether the general traverse in the opening paragraph of the Appellant’s statement of Defence was sufficient to put the Respondent on notice to prove its legal status.

(iv) Whether the totality of the evidence adduced by the respondent was sufficient to entitle them to their claims.

In our humble view, the issues which the appellants formulated are more germane to their grouse against the judgment of the lower court. We shall, therefore, adopt them in the determination of this appeal. After all, it is their appeal. We shall deal with them seriatim. We shall return to them anon, but first the factual background to this appeal.

FACTUAL BACKGROUND
The case of the respondents was that the Akwa Ibom State Government awarded a contract to the defendant/appellant for the construction of a part of Nwaniba Road in Uyo, Akwa Ibom State. It maintained that sometime in 2006, the appellant, in the execution of the above contract, constructed a drainage which channeled flood water into their Church premises forming a massive pool of stagnant water without any exit channel. It was the plaintiffs/respondents’ position that the stagnant body of water percolated into the foundation of the church building: weakened it and caused massive cracks on the walls, floors and other parts of the church building. By reason of the cracks, the building was at the verge of collapsing and had been rendered dangerous and unfit for the purpose it was constructed, and members of the church no longer feel safe to worship in the building.
The defendant/appellant’s case was that it was constructing the road as agent of the Akwa Ibom State Government. Thus, if there was any damage as alleged, the plaintiffs/respondents should approach the Akwa Ibom State Government. As noted earlier, the lower court (coram Abraham J) found for the plaintiffs/respondents in its judgment of….

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether from the Statement of Defence, the defendant/appellant did not challenge the legal status of the plaintiff to necessitate the plaintiff proving same?

APPELLANT’S SUBMISSIONS
When this appeal came up for hearing on October 10, 2013, learned counsel for the appellants, adopted the brief filed on December 12, 2012 and the reply brief deemed, properly, filed on October 10, 2013. In the said brief, he contended that, by the averment in paragraph 1 of the Statement of Defence and the General Traverse, they had traversed, challenged and put the legal status of the Plaintiffs in issue, citing paragraph 1 of the Statement of Claim, at page 6 of the records. He drew attention to the opening paragraph of the Statement of Defence, [page 13 of the record], where they averred thus:

Save and except as hereinafter expressly admitted, the defendant denies each and every allegation of fact contained in the Statement of Claim as if same were specifically set out and traversed seriatim.

He, further, referred to paragraph 1 of the Statement of Defence, [page 13 of the record] for the averment that:

The defendant is not in a position to admit the fact in paragraph 1 of the Statement of Claim and puts the plaintiff to the strictest proof thereof.

Learned counsel impugned the lower court’s reasoning at page 136 of the record that the defendants’ Statement of Defence was not a challenge to, or a proper traverse of, the plaintiffs’ paragraph 1 of the Statement of Claim and in consequence, the plaintiffs had no burden of proving their incorporated status. He maintained that by putting the plaintiffs to the strictest proof of the claim of their incorporated status, they were under obligation to prove that fact strictly. He prayed in aid the authority of Arisons v Ogun State [2009] 6 SCNJ 141, 144.
He contended that in view of the general traverse and, in particular, paragraph 1 of the Statement of Defence which put the respondents [as plaintiffs] to the strictest proof of their incorporated status, the lower court was wrong in its conclusion that the plaintiffs’ averment was admitted, citing Ugochukwu v Co-operative Bank [1996] 7 SCNJ 22. He, once more, relied on ACB Plc and Anor v Emostram Ltd [2002] 4 SCNJ 299 for the view that where issues were joined on the legal status of a party alleged to be an incorporated personality, the Certificate of Incorporation should be produced as it was the only way by which the issue of legal personality could be proved. He pointed out that, in the instant case, no certificate of incorporation was produced and no attempt whatsoever was made to prove the incorporated status of the plaintiffs.
Citing Bank of Baroda v Iyalabani [2002] 7 SCNJ 287, he maintained that, where at the end of the trial, the plaintiff failed to prove its juristic personality, the claim would be dismissed. He urged the court to hold that the defendants, by their general traverse and or paragraph 1 of the Statement of Defence, did not admit the incorporated status of the plaintiffs. Rather, they, sufficiently, challenged and put the incorporated status of the plaintiffs in issue. Thus, they [plaintiffs] had a burden of proving their incorporated status. He urged the court to resolve this issue in favour of the defendants/appellants and set aside the judgment of the lower court based on this issue as the case ought to have been dismissed.
He, further, pointed out that even if their corporate status was not traversed or challenged, the fact of incorporation as Trustees could not be established even by admission of the parties. Put differently, counsel canvassed the view that the only proof acceptable was the production of the certificate of incorporation, Registered Trustees, Apostolic Church v Attorney General, Mid Western State [1972] A.N.L.R. 359; ACB Plc and Anor v Emostrade Ltd [2002] 8 NWLR (Pt. 770). He maintained that the plaintiffs/respondents had a burden to prove their incorporated status by the production of their certificate of incorporation.

RESPONDENT’S ARGUMENTS
Learned counsel for the respondent, C. O. Ezeibe, equally, adopted the respondents’ brief deemed, properly, filed on October 10, 2013. With regard to this issue (it was argued as issue three in the respondents’ brief), he noted that the rule of pleadings is that denial must be specific and not evasive. Furthermore, the denial must be of the substance of the allegation. It must be unambiguous and not a literal denial, citing Order 15 Rule 5 (1) and (2) of Akwa Ibom State High Court Rules.
He canvassed the view that, in line with the provision of the Akwa Ibom State High Court Rules, the appellants did not deny paragraph 1 of the respondent’s Statement of Claim, citing L.C.C. v Ogunbiyi [1969] 1 All NLR 297, 299. He took the view that averments of facts in a Statement of Claim must be met by the defendants frontally and categorically. In his view, once the defendants had failed, refused, or neglected to do so, they were taken to have admitted it. In consequence, the plaintiffs would not need to prove such facts. He insisted that a traverse that the defendants were not in position to deny or admit the plaintiffs’ claim was insufficient, Lewis & Peat (NRI) Ltd v Akhimien [1976] 7 SC 157, 163; Ukachukwu v Uzodinma (2007) 9 NWLR (Pt. 1038) 167, 171; N.B.C. Plc v Olarewaju (2007) 5 NWLR (Pt. 1027) 225, 259 – 260; Kotun v Olasewere (2010) 1 NWLR (Pt. 1175) 411, 416 where this court took the view, inter alia, that an averment to the effect that the defendant puts the plaintiff to proof amounts to insufficient denial.
Against this background, he maintained that the appellants did not join issues with the respondents at the trial court to prove the fact as contained in paragraph 1 of the Statement of Claim. In effect, the appellants having admitted the said fact, the respondents had no obligation to prove that averment. He maintained that the case of Registered Trustees, Apostolic Church v Attorney General, Mid Western State (supra) was distinguishable from the present case.

He explained that, unlike in that case, in the instant case, the fact of ownership of the affected church building was not in contention, neither was it in contention that the respondent was the proper party to institute the action. He noted that the respondents’ claim at the trial court was that the appellants, in the course of constructing the Nwaniba – Ifiayong Road, constructed a drainage which emptied flood water into the respondents’ church premises. In consequence, the church building was irreparably damaged due to the cracks on the foundation, floors and walls of the said building. He observed that there was no opposing or rival claim as to the ownership of the building as in the Apostolic Church case which the appellant’s counsel cited.
He canvassed the view that the respondents’ case disclosed a reasonable cause of action. A wrong had been clearly established. He urged the court to rely on the principle of ubi jus ibi remeduim and hold that where there was a wrong, a remedy should be provided. He urged the court to uphold the Judgment of the lower court and resolve this issue in favour of the respondents. He prayed the court not to allow the appellant’s recourse to technicality to rob the respondents of the remedy they rightly deserved, Akpan v Bob (2010) 17 NWLR (Pt. 1223) 421, 437.

APPELLANTS’ REPLY
Counsel for the appellant canvassed the view the above issue, as the respondents formulated it, was outside the appellants’ Grounds of Appeal. He referred to pages 145-146 of the record. According to him, the above ground, with the particulars of error, complained that, looking at the pleadings, the appellants, sufficiently, challenged the incorporated status of the respondents. He maintained that the said ground did not allege that only the opening paragraph of the Statement of Defence, was sufficient to put the respondent on notice to prove its Legal status. He urged the court to strike out the issue as the respondents couched it, Agbitu v Nigeria Navy (supra).

RESOLUTION OF THE ISSUE
What prompted the above divergence of views in the respective briefs of the parties was the reasoning of the lower court at page 136 of the record. The court took the view that the Statement of Defence was not a proper traverse of the plaintiffs’ paragraph 1 of the Statement of Claim. In the court’s view, the plaintiff had no burden of proving its incorporated status.
As shown above, the respondents isolated the averment in paragraph 1 of the Statement of Defence. It reads thus: “[t]he defendant is not in a position to admit the fact in paragraph 1 of the Statement of Claim and puts the plaintiff to the strictest proof thereof.”
It was their contention, inter alia, that the defendants’ traverse that they [meaning the present appellants] were not in position to deny or admit the plaintiffs’ claim was insufficient. There is considerable force in this submission. The rationale of all binding authorities on this point is that a traverse that a defendant is not in a position to admit or deny averments in the plaintiffs pleadings and will, at the trial, put the plaintiff to the strictest proof thereof, is insufficient, Okike v Onah (1999) LPELR; Daniyan v Iyagin [2002] FWLR (Pt 120) 1805; [2002] 7 NWLR (Pt 760) 345; Oseni and Ors v Dawodu and Ors (1994) LPELR; Asafa Foods Factory Ltd v Alraine; Nwadike v Ibekwe; Lawal v Dada; Ayodele James v Mid Motors.
However, this is where we must part ways with the respondents. They, completely, overlooked the general traverse in the Statement of Defence. It was couched in the standard format of general traverse as employed by pleaders over the ages:

As shown above, in the opening paragraph of the Statement of Defence, the appellants [as defendants] employed the mode of pleading known as general traverse. In the words of Mohammed JSC in Ugochukwu v Unipetrol (Nig) Plc (2002) LPELR-3321 (SC), 7, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied. According to the eminent jurist, it is not correct that, in Lewis and Peat (NRL) Ltd v Akhimien, the apex court held that a mere traverse of material facts is not enough to deny such facts.
In our humble view, the lower court’s error was that it did not distinguish between the general traverse in the opening paragraph and the averment in paragraph 1 of the Statement of Defence. In the said paragraph 1, the defendants pleaded that they were not “in a position to admit or deny [the particular allegation in the Statement of Claim] and will, at the trial, put the plaintiff to proof.” It is now firmly established that this sort of plea amounts to insufficient denial, see, per Mohammed JSC in Ugochukwu v Unipetrol (Nig) Plc (supra), approvingly, adopting Harris v Gamble (1878) 7 Ch.D 877; Iguh JSC in Okeke v Onah (1999) LPELR; Daniyan v Iyagin (2002) FWLR (Pt 120) 1805; [2002] 7 NWLR (Pt 760] 345; Oseni and Ors v Dawodu and Ors (1994) LPELR; Asafa Foods Factory Ltd v Alraine LPELR; Lewis and Peat; Nwadike v Ibekwe ; Lawal v Dada; Ayodele James v Mid Motors. The implication of the above position of the apex court is that contrary positions by lower courts [including this court] were taken per incuriarn, see, for example, Dairo v Registered Trustees [which purported to nibble at the conclusion, unmistakably, arrived at by the Supreme Court in the line of cases cited above].

If any further authority is required for our above conclusion, we pray in aid the views of Oputa JSC in Akintola and Anor v Solano (1986) LPELR-360-SC; [1986] 2 NWLR (Pt 24) 598. According to the accomplished jurist, the Law and Rule of pleadings do allow a general traverse [such as the defendants employed in the opening paragraph of the Statement of Defence], the only effect of which is to cast on the plaintiff the burden of proving the allegations, thus, generally, denied, citing with approval ACE Jimona v NECC Ltd; Wamer v Sampson (1959) 1 QB 297, 310, see page 40 of Akintola and Anor v Solapo (supra); Uwais JSC in Osafile and Anor v Odi and Anor (1994) LPELR-SC 2784, placing reliance on the views of Lewis JSC in Mandillas and Karaberis Ltd v Apena (1969) NMLR 199, 392-393; per Denning MR in Warner v Sampson (supra); ACE Jimona v NECC Ltd.
One further point on this issue is, perhaps, proper here. At one time, the use of general denial [such as was employed in paragraph 1 of the Statement of Defence above] was said to be embarrassing, British and Colonial Land Association Ltd v Foster and Rohins (1888) 4 TLR 574, see Uwais JSC in Osafile and Anor v Odi and Anor (supra). However, since 1893, it has been recognized as convenient and permissible, Adkins v Metropolitan Tramway Co (1893) 10 TLR 173, see per Uwais JSC in Osafile and Anor v Odi and Anor (supra). As Denning MR pointed out in Warner v Sampson (supra) at page 310:

Sometimes the pleader ‘denies’; sometimes, he does not admit each and every allegation; but whatever phrase is used, it all comes back to the same thing. The allegation is to be regarded ‘as if it were specifically set out and traversed seriatim. In short, it is a traverse, no more no less.

Now, the effect of a general traverse has been known to generations of pleaders. It casts upon the plaintiff the burden of proving the allegations denied. Bullen and Leake on Precedents (3rd edition) 436. So, this general denial does no more than put the plaintiff to proof, Uwais JSC in Osafile and Anor v Odi and Anor (supra); see, also, Adio JSC in Umesie and Ors v Onuaguluchi and Ors (1995) LPELR-3368 (SC), citing Mandillas and Karaberis Ltd v Apena (supra); Uwaifo JSC in Nwokoro and Ors v Onuma and Anor (1999) LPELR-2126 SC, 24; Odgers on High Court Pleadings and Practice (23rd edition) 171; Fatayi-Williams JSC in Benson v Otubor (1975) LPELR-774 (SC), 20. In all, we find that the lower court was wrong in its view that the appellants [as defendants] admitted the averments in the respondents’ pleadings [as plaintiffs].
We take the further view that the lower court, equally, erred in its conclusion that the respondents [as plaintiffs] had no obligation to prove their incorporated status, page 136 of the record. In our humble view, the court glossed over the fact that the question of legal personality borders on locus standi or capacity to sue or be sued, Contract Resources Nig Ltd v Standard Trust Bank (2013) LPELR. Here, we take liberty to state that our law attributes juristic personality, that is, the capacity to maintain and defend actions in court to natural persons and artificial persons or institutions, Geneva v AfriBank Nig Plc (2013) LPELR; Attorney General of Federation v All Nigeria Peoples Party and Ors [2003] 12 SCM 1, 12; [2003] 18 NWLR (Pt. 851) 182; [2003] 12 SC (Pt. 11) 146. They are, therefore, known to law as legal persons, Alhaji Afia Trading and Transport Company Ltd v Veritas Insurance Company Ltd [1986] 4 NWLR (Pt. 38) 802. In consequence, only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality can prosecute or defend law suits by that name, Knight and Searle v Dove (1964) 2 All ER 307; Admin Estate of Gen. Sanni Abacha v Eke-Spiff and Ors (2009) 3 SCM 1; [2009] NWLR (Pt.1139) 92.

From a conspectus of a host of Supreme Court decisions, we are emboldened in our view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiffs, is by the production in evidence of the certificate of incorporation issued by the Corporate Affairs Commission [CAC], Geneva v AfriBank Nig Plc (supra); ACB Nig Plc v Emotrade Ltd (supra). Thus, where a group of persons claims to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their certificate of incorporation, as nothing else would suffice, Emotrade. In effect, for Incorporated Trustees to establish their juristic personality, except if it is admitted by the opposing party, they must tender their certificate of incorporation under Part C of CAMA. It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v Iyalabani Company Limited, [2002] 12 SCM 7.
Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the certificate of incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic Church v AG Mid-West (supra); Geneva v AfriBank (supra); J.K. Randle v Kwara Breweries Ltd [1986] 6 SC 1.
The provisions of section 2 subsections (1) and (3) of the Land (Perpetual Succession) Act [now defunct], in pari materia with section 673 (1); (2) and Section 679(1) of the Companies and Allied Matters Act, 1990 [CAMA, for short], fell for construction in Registered Trustees, Apostolic Church v Attorney General, Mid-Western State and Ors [1972] ANLR (Reprint) 359. Sowemimo JSC (as he then was), reading the judgment of the apex court, held that:
Although evidence was led as to named persons being made trustees, the certificate of incorporation was never produced. It is therefore clear that unless the plaintiffs could comply with section 6 of the Act [see, now section 679(3) of GAMA], they have no power to sue or be liable to being sued…
In view of the above provisions of the Act the plaintiff, having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue…In the circumstances, the plaintiffs/appellants’ claim must fail… [italics for emphasis]
In all, the burden of proving their status as Incorporated Trustees, therefore, lies on the persons who made such positive assertion about their incorporated status, section 135 of the Evidence Act [then applicable to the proceedings]; Elias v Omo Bare [1982] 6 SC 2; Elias v Disu (1962) 1 All NLR 214; Wuchem v Gudi [1981] 5 SC 291; Agala and Ors v Egwere and Ors [2010] 5 SCM 22, 37. We, therefore, resolve this issue in favour of the appellants.

Issue 2

Whether in the execution of the contract in issue, the defendant/appellant was an agent of or an independent contractor to the Akwa Ibom State Government (a disclosed principal)?

APPELLANT’S CONTENTION
The main contention of the appellant’s counsel on this issue was that, in the execution of the contract in issue, the appellant was an agent of, and not an Independent Contractor to, the Akwa Ibom State Government, a disclosed principal. In effect, his position was that the defendant/appellant was not a proper and necessary party to the suit now on appeal.
He faulted the lower court’s reasoning maintaining that its judgment was based on the wrong premises, and a gross misunderstanding of the nature of agency which the appellant relied upon, citing the judgment of the lower court at page 139 of the record.
He pointed out that the court confused the concept of agency for purposes of Section 251 of the 1999 Constitution on the jurisdiction of the Federal High Court and the agency created by contract. He explained that in the latter case, one person (natural or corporate) who has a job/duty to perform may decide to use another person (natural or corporate) to execute or undertake the job on his/her behalf. Such an agent acts within the limits of his/her authority, citing Black’s Law Dictionary (9th edition) 70; Niger Progress Ltd v North East Line Corporation (1989) 3 NWLR (Pt. 107) 68, 92. He cited Osigwe v PSPLS [2009] 1 SCNJ 1 where, according to him, the Supreme Court, inter alia, set out facts and circumstances which qualify two contracting parties to be in the relationship of an agent and a principal such that when the principal was disclosed, the agent had no liability for acts performed on behalf of the principal provided such acts were within the authority of the said agent.
Counsel pointed out that, in the instant case, the defendant pleaded and gave evidence of the agency relationship between it and the Government of Akwa Ibom State, citing paragraph 5 of the Statement of Defence.
According to him, the defendant/appellant’s solicitor’s letter of December 19, 2006, drew the respondent’s solicitor’s attention to the above facts in a letter dated December 19, 2006. He, also, cited page 13 of the record and exhibit “3A” at page 55 of the record. He noted that the above pleadings were not traversed. He referred to page 52 of the record where the above averments were given in evidence. He, equally, pointed out that the defendant tendered one of the drawings which the Akwa Ibom State Government handed over to it for compliance as an exhibit, page 56 of the record. He observed that this evidence was not challenged or contradicted.
In his view, with the above terms of contract the defendant had with the Akwa Ibom State Government, it was clear that the defendant, in constructing the road in issue, was merely acting as an Agent of the Akwa Ibom State Government. In effect, the Akwa Ibom State Government was the principal which was known to the plaintiff by exhibit 3A well before the suit was instituted, citing Osigwe v PSPLS. According to him, if there were problems with the designs and drawings for the road network, concerning the location of the gutter, which was the main complain of the plaintiff, the Akwa Ibom State Government, that designed the channel/gutter, should be held responsible and not the defendant/appellant who was appointed to construct as per the design. In his view, it would have been otherwise if the plaintiff had shown that the defendant/appellant went outside the designs/drawings. This, the plaintiffs did not show. He took the view that Cotecna v Churchgate [2010] 12 SCNJ 418 was inapposite. He, also, cited Health Care Prod Nig v BAZZA (2004) 3 NWLR (Pt 861) for the definition of Independent Contract.

He contended that the above facts and circumstances of an independent contractor cannot, and do not, fit into the case now on appeal which is a straight jacket contract with designs, drawings and specification handed over to the defendant and in which the duty of the defendant, under instructions, orders and control of the Akwa Ibom State Government, was to build the road strictly in accordance. He maintained that the plaintiff/respondent had not shown that the defendant/appellant exceeded the instructions as to specifications.
He urged the court to hold that with the unchallenged and acceptable evidence on record, the defendant/appellant was an agent of a disclosed principal, the Akwa Ibom State Government. He relied on Osigwe v PSPLS (supra) and Carlen v UNIJOS [1994] 1 SCNJ 72, 76 for the view that an agent acting on behalf of a known and disclosed principal incurred no personal liability. Such an agent was not a proper and necessary party to a suit challenging the act taken by the agent within the limits of his/her authority; Leventis v Petrojessica [1999] 4 SCNJ 121, 123. He urged the court to resolve this issue in favour of the defendant/appellant. This done, the court should set aside the judgment.

RESPONDENT’S ARGUMENT
Learned counsel for the respondent, in a spirited attempt to dismantle the above submissions, prayed in aid both local and foreign decisions for the contention that the test for distinguishing between an agent and an Independent contractor is the right of control, ACB Ltd v Apugo [1995] 6 NWLR (Pt 390) 65, 70; Market Investigations Ltd v Minister of Social Security (1968) 3 All ER 732.
He pointed out that the appellant in the instant case is a multinational construction company. It is owned by a Lebanese. It has a registered office in Nigeria and engages in the business of road construction on its own account. As such, it is not under the control of any person. He maintained that the appellant had full control of the construction/dualization of the Nwaniba – Ifiayong Road. It provided its own equipment, hired and paid its staff, undertook all the financial investment and management risks and enjoyed the benefits of its investment. He invited the court to hold that the appellant was and is an independent contractor within the circumstances of this case.
He cited W. Edward’s book on Agency (New York: the Foundation Press Inc., 1975) 86 for other indicators for determining whether a person engaged to discharge a given service was a servant/agent or an independent contractor. He submitted that it was only when such questions, as posed by the learned author, were answered in the affirmative that a master/servant or principal/agent relationship would arise. He contended that there was nothing before the trial court or this court to show that the Akwa Ibom State Government intended to or actually created a master – servant or principal – agent relationship with the appellant.
Citing Cotecna Int’l Ltd v Churchgate (Nig) Ltd [2010] 18 NWLR (Pt.1225) 346, 356, he contended that a principal – agency relationship may only arise where there has been an agreement between parties to establish such relationship and there is also an authorization by the principal for the agent to act on his behalf in a given circumstance; also, UTC (Nig) Plc v Philips (2012) 6 NWLR (Pt. 1295) 136, 140. He canvassed the view that the mere provision of drawings and job specifications to the appellant by the Akwa Ibom State Government did not establish an agency relationship between the two, citing Cotecna Int’l Ltd v Churchgate (Nig) Ltd.
He maintained that the facts and circumstances of this case do not suggest that the appellant was the agent of Akwa Ibom State Government. In effect, at all times material to the construction/dualization of the Nwaniba-Ifiayong Road, the appellant was, and executed the contract as, an independent contractor. He urged the court to resolve this issue in favour of the respondent.

APPELLANTS’ REPLY
In his reply, counsel for the appellant submitted that this issue, which the respondents formulated, did not flow from the Grounds of Appeal. According to him, the issue, as formulated, is wide and nebulous and orbits outside Ground three of the Grounds which the appellants filed at page 140 of Records.
He took the view that the ground was specific in challenging the decision of the lower court that the appellant was an Independent Contractor in the execution of the contract in issue. He submitted that, since the respondents did not cross-appeal and, consequently, did not file any grounds of appeal, they should not have formulated an issue not arising directly from the grounds filed by the appellants, Agbitu v Nigeria Navy [2011] 2 SCNJ 1, 4. He urged the court to strike out the issue which the respondents formulated and the arguments.

Although not conceding that the said issue arose directly from the grounds filed, he associated himself with the distinction which the respondents drew an agent and an independent contractor, ACB Ltd v Apugo (supra); Market Investigations Ltd v Min of Social Security (supra). In his view, however, from the evidence on record, as far as the execution of the contract in issue was concerned, the appellants were agents of the said government. He pointed out that, from the evidence on record, the appellants constructed the road for and on behalf of the Akwa Ibom State Government which supplied the drawings, specifications, designs, funds and supervised the execution of the work to ensure that it was done in accordance with those drawings, designs and specifications. He maintained that, in the construction of the road in issue, from the evidence on record, the appellants acted as agents of the Akwa Ibom State Government. He opined that the case of Cotecna v Churchgate (supra) was inapplicable to the appellants’ contract in issue with the Akwa Ibom State Government.
He pointed out that, in Cotacna (supra), the company had a duty to independently inspect and assess the Free On Board value of imported goods and thereafter earn a percentage of the value assessed. He asserted that, when the company wrongly assessed the value of imported goods, it was rightly held liable. In his view, that was unlike the situation of the appellants who were supplied with the designs, drawings and specifications and a consultant appointed to ensure compliance with the drawings, designs and specifications.

RESOLUTION OF THE ISSUE
The appellants’ contention under this issue would appear to overlook the salient features which distinguish an agency relationship from an independent contractor relationship, Ogbonnaya Godwin v The Christ Apostolic Church [1998] 14 NWLR (Pt 584) 162; Osigwe v PSPLS Management Consortium Ltd and Ors (2009) LPELR -2807 (SC) 30-31; Okwejiminor v Gbakeji [2008] 5 NWLR (Pt 1079) 172, 224; Iyere v Bendel Feeds and Flour Mill Ltd (2008) LPELR -1578 (SC); [2008] 7-12 SC 151; R. A. Pacynski, “Legal Challenges in Using Independent Contractors” in Michigan Bar Journal 72 (July), 1993; J. G. Payton, “Checklist for Determining Independent Contractor Status” in Corporate Counsel’s Quarterly 17 (October) 2001.
At page 140 of the record, the lower court, in upholding the plaintiffs’ argument that the defendants [now, appellants] were not agents of the Akwa Ibom State Government but independent contractors, opined thus:

Having regard to the foregoing [the capacity in which the defendants/appellants executed the job in question], my view is that in carrying out the road construction, the defendant was not acting as an agent of the Government of Akwa Ibom State but as an independent contractor. The cases cited by the defendant’s counsel relating to the liability of an agent of a disclosed principal will not be applicable. Here I hold that the plaintiff can maintain this suit against the defendant as an independent contractor….

We, entirely, agree with the lower court that the cases which the appellant’s counsel cited on the liability of an agent of a disclosed principal are inapplicable. Surely, the contractual relationship between the Government of Akwa Ibom State and the appellant did not fall within the canons which are well-settled in the law of agency, E. A. Akanki, “Agency” in E. I. Akanki (ed), Commercial Law in Nigeria (Lagos: University of Lagos Press, 2005) 257-258, citing Khonam v John (1939) 15 NLR 12; Ologbosere v Ezenwa (1962) LLR 35; Fasegha and Anor v Akinwumi and Ors [1971] 1 A.L.R. Comm. 329; Bamgbala v Deputy Sheriff and Anor [1967] 1 A.L.R. Comm.292, 295.

The authorities are, actually, legion: they are many: Ntia v Jones ( ); Bayero v Mainasara and Sons Ltd [2007] All FWLR (Pt. 359) 1285; Amadiume v Ibol (2006) All FLWR (Pt. 321) 1247, 1250 – 1251; Okafor v Ezenwa [2002] FWLR (Pt. 121) 1837, 1843; 1854 – 1855; Ataguba and Co Ltd v Gura Nigeria Ltd [2000] FWLR (Pt. 24) 1522; 21 NSCQR 720; Vulcan Gases Ltd v Gesellschaft [2001] FWLR (Pt. 53) 1; [2001] 87 LRCN 1577; Melwani v Five Stars Ind [2002] FWLR (Pt. 94) 31, 343; A.C.B. Plc v Ndoma-Egba (2001) FWLR (Pt. 40) 1781 – 1782; Carlen (Nig) Ltd v University of Jos and Anor [1994] 1 SCNJ 72. Subject to our findings and concluding in issue one above, we agree with the lower court that the defendant [as plaintiff] could maintain the suit against the defendant as an independent contractor, Shena Security Company Ltd v Afropak (Nig) Ltd and Ors (2008) LPELR -3052 (SC) 13; [2008] 34 NSCQR (Pt 11) 1287. We find no merit in the appellant’s complaint in this issue. We, therefore, resolve it against them.

Issue 3

Whether from acceptable evidence on record, the plaintiff/respondent had proved her case to entitle her to general damages of N30, 000, 000.00 (Thirty Million Naira) against the defendant?

APPELLANT’S SUBMISSIONS
Reacting to this issue, counsel took the view that, from acceptable evidence, the plaintiff/respondent did not prove its case to entitle it to general damages of N30,000,000.00 (Thirty Million Naira) the lower court awarded in its favour. He pointed out that the deposition of the PW1 (Engr. Ekpe Ebong) was not on oath as it was not sworn before a Commissioner for Oaths. He referred to page 117 of the record where, under cross examination, the PW1 admitted that he signed the witness deposition in the plaintiff’s lawyer’s Chambers. He relied on Buhari v INEC [2008] 12 SCNJ 23 for the view that a witness deposition which was not taken before a Commissioner for Oaths should not be admitted in evidence. He, thus, submitted that the “witness deposition” of PW1 was inadmissible in evidence; hence, the plaintiff was only left with PW2 to prove its case.
He referred to page 120 of the record. Under cross examination, the PW2 admitted that he was posted to the said church in 2007 after the cracks on the wall complained of had taken place and letters connected therewith had been written. Counsel maintained that, as the said witness was not an eye witness as to what caused the cracks, his evidence as to the cause of the crack was speculative and or hearsay evidence, Olalekan v The State [2001] 12 SCNJ 94, 98; Dennis Ivienagbor v Bazuaye [1999] 6 SCNJ 237. He urged the court to hold that the PW2’s evidence as to the cause of cracks on the wall of the said building was inadmissible, being hearsay evidence.
Counsel turned to what he described contradictions in the testimony of PW2. He cited page 33 of the record. In his Statement of Oath, he (PW2) explained that the defendant constructed a channel into the church premises of the plaintiff. By reason of the said the channel constructed into the church premises, flood water emptied into the premises of the plaintiff’s church building. Counsel, then, drew attention to the witness’s position under cross examination to the effect that the distance between the building and the gutter (channel) along the high way is about 55 meters. In other words, the channel was not constructed into the church premises as the said channel was far away from the church premises by 55 meters.
He described this as a serious contradiction as to the location of the channel, which was the major complaint of the Plaintiff. He pointed out that if the evidence of PW2 was admissible, the court should not have relied on his contradictory evidence to conclude that the channel emptied rain water into the premises which, allegedly, caused the cracks complained of.

Under cross examination, the PW2 maintained that their complaint was about cracks. However, when he was shown cracks on the wall of the church hall and was asked whether there was a gutter/channel taking rain water into the church premises, he answered in the negative.
Counsel extrapolated that this meant that not all cracks on the buildings were due to rain water running into such premises.
He submitted that even if the evidence of PW1 and PW2 were admissible, the plaintiff did not give any evidence on general damages. He drew attention to what transpired in court on the day of the adoption of written addresses. According to him, when challenged for lumping special and general damages together, the plaintiff/respondent’s counsel amended the claims to read: “General damages only.” He pointed out that there was no evidence on oath supporting the amendment that the plaintiff/respondent claimed N50,000,000.00 (Fifty Million Naira) or any other amount as general damages. In effect, according to the averment in the pleading, the sum of N50 million was claimed as general and special damages.
Counsel submitted that pleadings do not constitute evidence. As such, any averment in pleadings which is not supported by evidence must be deemed as having been abandoned. Thus, the amendment to claim only general damages, since it was not supported by evidence, was deemed abandoned, Health Care Prod Nig Ltd v BAZZA (2004) 3 NWLR 582, 587.
He pointed out that what was pleaded, and supported by evidence, was the sum of N50,000,000.00 (Fifty Million Naira) as general and special damages. He maintained that the court could not pick and chose which amount to give as general or special damages. In such a situation, the court would award neither general nor special damages. The lower court was, therefore, in error to have awarded N30,000,000 as general damages, Toudos Service Nig Ltd v Tasie (WA) Ltd [2006] 6 SCNJ 300. He urged the court to resolve this issue in favour of the defendant/appellant in that the plaintiff/respondent failed to prove its claim. In the first place, the evidence of PW1 was not on oath and, thus, inadmissible. On the other hand, the evidence of PW2 was hearsay and inadmissible. Above all, there was no evidence on record to back up the claim for general damages of N30,000,000.00 or any amount.

RESPONDENT’S ARGUMENTS
Counsel pointed out that the respondent put the facts which culminated into the action before the lower court. Above all, it substantiated them by way of proofs and evidence. He explained that PW1, a Structural/Civil Engineer, prepared the Evaluation Report of the damage done to the respondent’s church building. The PW2, the Pastor of the Church, testified as PW2. He explained that their testimonies were not challenged or shaken. He maintained that the appellant never denied the fact that the damage done to the respondent’s church building was the consequence of its action. In his view, the respondent, having established their case against the appellant, was entitled to succeed.
He pointed out that the appellant had failed to establish any cogent defence against the respondent’s claims. He noted that, in its Brief of Argument before this court, the appellant raised fresh issues and arguments which were not before the lower court, or were not supportable by the grounds of appeal. He cited the argument on the inadmissibility of the witness deposition of PW1 and the alleged contradiction in the evidence of PW2 at the trial court. He characterized these submissions as frivolous and unsupportable. Worse still, they were never raised before the trial court during trial.

On the submission on the absence of any evidence on oath in support of the respondent’s amendment of N50,000,000.00 as general damages, he drew attention to page 128 of the record. He noted that the defendant/appellant’s counsel did not oppose the plaintiff/respondent’s oral application to amend the claim by deleting the words “and special”.
He submitted that parties are not permitted to raise fresh issues on appeal without first and foremost obtaining the leave of this court to do so, Order 6 Rule 2 (1), Court of Appeal Rules 2011; Onyemaizu v Ojiako [2010] 4 NWLR (Pt. 1185) 504, 511; Nikagbatse v Opuye (2010) 7 NWLR (Pt. 1194) 604, 615; Fescum & Co Ltd v F.A.A.N (2010) 15 NWLR (Pt. 1216) 311, 313; Mako v. Umoh (2010) 8 NWLR (pt. 1195) 82, 91. He maintained that, having failed, refused or neglected to satisfy the condition precedent for raising fresh issues and arguments before this court, these arguments should be discountenanced.
He disagreed with the contention that the evidence of PW2 was hearsay, citing section 37 of the Evidence Act, 2011. He noted that the evidence given by a person, who has seen, heard and, perceived or opined a view in respect of such thing(s) does not fall within the category of hearsay, section 126 of Evidence Act.
He pointed out that the respondent instituted this action sometime in 2007. He explained that it was on record that the appellant began the construction/dualization of Nwaniba-Ifiayong Road sometime in 2006. He maintained if there was any person who was fully aware of the origin of the damage to the said church building, it was the PW2 who pastors the church. According to him, the PW2 had been seeing the flood water that emptied into and formed a pool of stagnant water within the premises of the church. Above all, the witness knows that the water could seep into the foundation of the church building. Even then, the witness saw that the floors and walls of the building were cracking.

APPELLANTS’ REPLY
Learned counsel for the appellant explained that, since the appellants did not formulate any issue from the omnibus ground one, they had abandoned the said ground one. It had complained that: “the judgment is against the weight of evidence”. He observed that the respondents’ issue which: “whether the totality of the evidence adduced by the respondent was sufficient to entitle them to their claims,” could not flow from an abandoned ground, Agbiti v Nigeria Navy (supra).

RESOLUTION OF THE ISSUE
The main crux of the appellant’s contention under this issue was that the witness deposition of PW1, the Structural Engineer, was not an oath as it was not sworn to before a Commissioner for Oaths. Counsel had submitted that the said deposition was inadmissible in evidence and the plaintiff was only left with the evidence of PW2. Counsel for the respondent underrated this contention. According to him, that argument was a fresh issue and was not supported by the Grounds of Appeal.
It is unarguable that the above submission of the respondents’ counsel did not factor in the appellant’s complaint against the judgment of the lower court as embodied in the Particulars of Error to Ground Four, page 146 of the record. Before we return to the particulars, it is, perhaps necessary to look at what transpired at the lower court. At page 117 of the record, PW1, under cross examination, responded thus: “I signed the witness deposition in my lawyer’s chambers…” In the Particulars of Error to Ground Four, page 146 of the record, Particular (1) complained that “Evidence of PW1 called as an expert was not on oath as it was not sworn before a Commissioner for oaths.” In Particular (111), page 146 of the record, the appellant, further, complained that “Evidence of PW1 was completely… inadmissible in law.”

As noted earlier, counsel for the appellants took the view that the said “witness deposition” of PW1 was inadmissible in evidence. We find considerable merit in this contention. Notwithstanding some decisions of this court to the contrary, the apex court in Buhari v INEC (supra) resolved this question in favour of the views canvassed by the appellant’s counsel. On the strength of the said apex court decision, therefore, we take the humble view that the lower court should have discountenanced the said deposition as it was, actually, not a deposition known to the judicial process. It failed to do so. Appellant’s counsel has challenged that decision on the ground that the lower court admitted and utilized a piece of inadmissible evidence, namely, the so-called deposition on oath of the PW1. We take the view that this court has the obligation to reject that piece of inadmissible evidence as it was, ab initio, completely inadmissible as a void process, Buhari v INEC (supra). We are emboldened in our position by a line of authorities, Agbaje v Adigun [1993] 1 NWLR (Pt 269) 261; Fasade v Babalola v [2003] FWLR (Pt 161) 1707; Chigbu v Tonimas (Nig) Ltd [1999] 3 NWLR (Pt 593) 115; Shanu v Afribank Nig Plc [2003] FWLR (Pt 136) 823; Ipinlaye v Olukotun [1996] 6 NWLR (Pt 453) 148, 167 – 168; Olukade v Alade [1976] 1 All NLR (Pt 1) 67, 73-74; Iweka v Rawson [2001] FWLR (Pt 67) 999, 1012 – 1013; see, generally, S.T. Hon’s prodigious book titled, S.T. Hon’s Law of Evidence in Nigeria (Based on the Nigerien Evidence Act, 2011) [Vol 11] (Port Harcourt: Pearl Publishers, 2012) 1560. We endorse the appellant’s counsel’s submission that the PW1’s evidence as to the causative factors implicated in the damage to the respondent’s building [as given in the discountenanced “Witness Deposition”] was inadmissible. We, entirely, agree with counsel that, if the proceedings were divested of the said inadmissible deposition of PW1, the lower court was wrong in its conclusion that the defendants proved their case and were entitled to the damages awarded. We resolve this issue in favour of the appellants.

Issue 4

Whether from the proceedings, evidence and judgment on record, the learned trial judge did not substitute the evidence before the court with his own observations at the locus to give judgment in favour of the plaintiff/respondent and if he did, whether that was proper in law?

APPELLANTS’ SUBMISSIONS
Learned counsel for the appellants canvassed the view that, from the proceedings, evidence and judgment on record, the lower court substituted the evidence on record with its observations at the locus in arriving at the judgment in favour of the respondents, citing pages 141 – 143 of the records. He set out the opinion of the lower court at page 141 of the record. He re-iterated the earlier submission that the evidence of PW1 was inadmissible as it was not sworn to before a Commissioner for Oaths. On the other hand, he took the view that the evidence of PW2 was also inadmissible as it was hearsay. In his view, therefore, the above opinion of the court about the case of the plaintiffs eventuated from its observation at the locus and was not borne out by the admissible evidence before the court.
He maintained that even if the cause of damage was borne out by the admissible evidence, the lower court was under obligation to set up an imaginary scale with which to weigh the evidence of the plaintiffs against that of the defendants. In so doing, it would have found from the scale where the evidence preponderated. He opined that if the evidence tilted in favour of the defendants/appellants, the plaintiffs’ case should have been dismissed, Ukaegbu v Nwokolo [2009] 1 SCNJ 49, 53.
Against this background, he contended that it was not the duty of the lower court to contrive evidence from its observations at the locus to bolster the case of the plaintiffs/respondents. He observed that the finding at pages 141-142 of the record was not borne out of the evidence on record rather it was derived from the court’s observation at the locus.

Counsel drew attention to the technical data/measurements among other pieces of evidence which the lower court highlighted but were not borne out by the evidence on record. He pointed out that, emboldened by its above observations at the locus the court concluded that “the damage to the building was the direct cause of the flood water from the culvert constructed by the defendant.” That was the basis of its award of the sum of N30,000,000.00 against the defendants in favour of the plaintiffs. He submitted that a court should not give evidence in a case it is called upon to adjudicate. Accordingly, it is impermissible for a court to substitute its own observations at the scene for the pleading and the evidence on record, Ojiako v Ewuru [1995] 12 SCNJ 79, 91.
He pointed out that, in this case, the lower court gave evidence as to the distance between the church building and the entrance of the church to be about 30 meters. It also gave evidence of an embankment of about 15 meters long to channel the water from the road. It found that the channel was not long enough to direct the water to the natural water away which, according to it, was 80 meters away. The court gave evidence of the measurement of cracks on the wall to be 12cm from the foundation to the top of the wall. It equally gave evidence of the stair case which, according to it, looked very solid and was about 2.5 meters high. He pointed out all the above observations/evidence which the lower court made/found were neither pleaded nor given in evidence by the parties. In his view, it was a clear case of a trial court substituting its evidence or observations for the evidence of the parties. This, in his submission, occasioned a miscarriage of justice.
He urged the court to hold that the lower court, actually, made up the evidence of the plaintiffs/respondents and substituted its evidence/observations for the evidence on record. He prayed this court to allow the appeal on this ground and set aside the judgment of the lower court based on its observations/evidence at the locus in quo.

RESPONDENT’S ARGUMENTS
On his part, counsel for the respondents took the view that a trial court could, at the instance of the litigants or suo motu, visit the locus in quo for the purpose of clearing any doubt which may have arisen from the evidence before the court, citing Ukaegbu v Nwololo [2009] 3 NWLR (Pt. 1127) 205; Adua v Essien (2010) 14 NWLR (Pt. 1213) 141, 147. He opined that the court’s authority for visiting the locus is statutory, citing section 76 of the Evidence Act [now section 125 of the Evidence Act, 2011]. He urged the court to hold that the trial court’s visit to the locus in quo was necessitated by the need to ensure that the ends of justice were better served.
He pointed out that the respondents’ grouse was that the appellants constructed a drainage which channeled flood water into the premises of their building. It formed a pool and percolated/seeped into the foundation of the building. As a result, the foundation, floors and walls of the church building were cracked/damaged. He noted that the respondent, also, stated in their evidence before the lower court that the church building was no longer habitable and fit for the purpose for which it was built. In consequence, members of the Church had stayed away from normal worship since the building was no more safe.
According to him, the respondents’ claims were corroborated by the evidence of PW1, a structural/Civil engineer, as an expert witness. He maintained that the appellants did not deny that it constructed drainage
or that the drainage was meant to channel flood water off the road. In his view, the appellant did not also deny that the drainage, actually, carried water to the premises of the respondents.
He submitted that the respondents had placed before the lower court sufficient and compelling facts and evidence to entitle them to judgment. He contended that the said visit to the locus in quo was not to build up the respondents’ case, as the case was already, amply and fully, laid before the court. In his view, it was expedient, in the circumstance, for the lower court to visit the locus in quo suo motu since the interest of justice so demanded in order to clear ambiguity that might have arisen in the evidence or resolve any conflicts as to the physical facts.
He listed instances of the pieces of evidence placed before the court by both parties which needed resolution. First, he noted that, whereas the respondents testified that the drainage caused the stagnant body of water in their premises, the appellants maintained that the drainage was very far from the building, and discharged into a natural water course. He pointed out that the respondents led evidence to show that the drainage constructed by the appellants caused the massive damage to its building. On their part, the appellants contended that their drainage could not have done so. He observed that, apart from ones above, many other pieces of evidence also needed resolution by the trial court, hence the visit to the locus in quo, Ukaegbu v Nwololo (supra).

Learned counsel took the view that the lower trial court, in its discretion, merely exercised that inherent power in the overriding interest of justice. According to him, the lower court’s above observation did not serve any other purpose other than to clear the ambiguity and conflict which had arisen in the evidence. He opined that the case of Ojiako v Ewuru (supra) was distinguishable from the facts of the instant case and, therefore, the authority was inapplicable.
He maintained that the facts in the instant case are very different. He pointed out the sworn testimonies or written depositions on oath of witnesses (PW1 and PW2) and the list of documents which the respondents relied upon at the lower court were frontloaded in compliance with the Akwa Ibom State High Court (Civil Procedure) Rules 2009. He explained that the evaluation Report of the Structural/Civil damage to the building filed by the PW1, a Structural/Civil Engineer, whom the respondents engaged to assess the damage done to the respondents’ church building was tendered and admitted in evidence by the trial court. In his view, there were sworn testimonies and duly admitted evidence before the lower court in proof of the respondent’s case which were sufficient for the court to act on, and which the court acted on.

APPELLANTS’ REPLY
Counsel for the appellants, in reply, took the view that the issue, as formulated by the respondents, did not arise from the appellants’ Grounds of appeal. He drew attention to Ground five, page 146 of the record. He pointed out that the above ground never complained about the visit to the locus in quo per se. According to him, the appellants’ ground or complain was specific: that the lower court erred in law when it substituted the evidence before the court with its observations at the locus. He submitted that, since the respondents did not cross appeal and, consequently, did not filed any grounds of appeal, they were wrong to have formulated the said issue which did not arise from appellants’ grounds of appeal, Agbitu v Nigeria Navy (supra). He urged the court to strike out the issue and arguments based on it.

APPELLANTS’ GENERAL REPLY
In all, counsel for the appellants, in reply to the respondents’ issues (ii) and (iii), which, in his view, did not flow from the appellants’ grounds of appeal, cited the dictum of Tobi JSC in Agwasim v Ojichie [2004] 4 SCNJ 199, 200.

RESOLUTION OF THE ISSUE
With profound respect, counsel for the respondents, completely, misconstrued the gravamen of the appellants’ complaint in this issue. The appellants’ fourth issue complained that the lower court substituted the evidence on record with its observations at the locus in arriving at the judgment in favour of the respondents, citing pages 141 -143 of the records. On his part, counsel for the respondents opted to dissertate on the court’s authority for visiting the locus is statutory, citing section 76 of the Evidence Act [now section 125 of the Evidence Act, 2011]. In the Latin days of the Law, the submissions of the respondents’ counsel would have been dismissed with the apt aphorism, bene cuccurit sed prete viam! The import of the maxim comes to this: the submission was brilliant but, completely, wide off the mark!

In our view, the submissions of the appellants’ counsel on this issue are unanswerable. As we found above, the witness deposition of PW1 was inadmissible. We, entirely, agree with the appellants’ counsel that the lower court substituted the results of its own observation for the sworn testimony on record. Put differently, the court reached conclusions from its observations at the scene in the absence of sworn admissible testimony as to the existence or non-existence of the facts it had observed. Listen to this:

I found that culverts or channel constructed by the defendant on Nwaniba Road by the side where the plaintiffs Church building situates is about 30 meters away from the entrance into the plaintiff’s church building. I also noticed that the defendant had constructed an embankment of about 15 meters long to channel the water from the road.
I find that this channel of about 15 m long is not long enough to direct the water to the natural water way about 80 meters away. I found that because the channel does not carry the water into the national waterway, it empties the water into the premises of the plaintiff’s church from the back side of the building. I found that just as shown on exhibit 4, tendered by the defendant, the land slopes from left where the culvert is to the right where the plaintiff’s church building is. I find that the plaintiff’s premises from the backside of the building is (sic) flooded. I was shown a mark on the wall of the building which when it rains water level on the wall of the building from the flood would rise to 2 meters. I saw several places where the walls of the church building had been split open living (sic) space of about 12 cm from the foundation to the top of the wall. The floors also had cracked. The vestry had cracked. The stair case which looked very solid and was about 2.5 meters had had been badly cracked. Even when it was not raining at the time of the locus in quo stagnant water stretching from the culvert was still at the premises of the plaintiff where the building stood. Having observed all the damage done to the building, I am of the view that the building is not habitable. It poses a great danger because the way I saw it, it could collapse at any moment. (pages 141-142 of the record).

We find the considerable merit in the appellants’ complaint against the above far-reaching observations: observations which did not flow from any sworn, admissible testimony on record, Igwe v Kalu [2002] 5 NWLR (Pt 761) 678, 715 – 716. What the court did was to substitute “the eye for the ear,” Ipinlaye v Olutokun 11 [1996] 6 KLR (Pt 42) 1000, 1019 – 1021; Obi v Mbagwu [2002] 48 WRN 1; Olumolu v Islamic Trust of Nigeria [1996] 2 NWLR (Pt 430) 253; Ojiako v Ewuru [1995] 12 SCNJ 79, 91. We, also, resolve this issue in favour of the appellants. Having resolved the first; third and fourth issues in favour of the appellants, we have no difficulty in allowing this appeal. Appeal allowed and the judgment of the lower court is hereby set aside. Parties are to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother, Chima C. Nweze, JCA, in this appeal.
The views expressed on and the conclusions on all the four (4) issues decided therein, are the some with mine. For the reasons set out in the lead judgment, which I adopt, join in allowing the appeal in terms thereof.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Centus Chima Nweze, JCA.
I agree with his reasoning and final conclusions. I join him in allowing this appeal. I abide by all the consequential orders contained in the lead judgment.

Appearances

U. U. BasseyFor Appellant

AND

C. O. EzeibeFor Respondent