REGD TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA v. UKENI & ORS
(2020)LCN/15251(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, May 21, 2020
CA/E/140/2017
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA APPELANT(S)
And
- REV. IBIAM EGWU UKENI 2. REV. EZE NWONU EZE 3. REV. AMARACHI NNACHI UKOMA 4. REV. AKA AKA IBIAM 5. ELDER CHRISTOPHER INYA EWA 6. ELDER JOHN MMAHI 7. ELDER ROSE U. OKO (For Themselves And Representing The Revolting Members Of The Mid-East Synod Of The Plaintiff) RESPONDENT(S)
RATIO
WHAT IS A COUNTER-CLAIM?
A counter claim is a legal procedure which allows a defendant to maintain an action against a plaintiff as if it is a separate suit. It is a cross – action and is considered as an independent action though the defendant, for convenience and speed, usually joins it with the defence. PER UMAR, J.C.A.
WHETHER OR NOT FAILURE OF A WITNESS TO ADOPT HIS WRITTEN DEPOSITION WILL RENDER THE STATEMENT ABANDONED
The law is trite that the failure of a witness to adopt his written deposition, the statement cannot be used as a material in determining the case as same would be deemed abandoned. See GOAR V. DASUN & ORS (2009) LPELR – 4205 (CA). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abakaliki division delivered by M. A. Onyetenu, J. on the 17th of May, 2016 wherein the learned trial judge dismissed the Appellant’s claims and granted the Respondents’ counter claims.
BRIEF STATEMENT OF FACTS
The Appellant commenced an action at the Court below vide a Writ of Summons and claimed the reliefs as contained in her amended statement of claim at pages 534 to 542 of the record of appeal.
The claim of the Appellant was that the Respondents, having voluntarily abandoned and ceased to be members and part of the Appellant are no longer entitled to enjoy the rights and privileges accruable to them by virtue of membership of the Presbyterian Church of Nigeria (PCN). The Appellant stated further that the Respondents do not have any proprietary rights over all or any property of PCN located within the Mid-East Synod of the Church.
By way of defence to the counterclaim, the Appellant contended that the Respondents lacked the vires to question the choice of the headship of the highest authority of PCN (the Moderator of the General Assembly) and that the Respondents have no rights to disturb workers and worshipers of the PCN in the Mid-East Synod of PCN. The Appellant averred further that the Respondents do not have the right to adopt for their church a name similar to the Presbyterian Church of Nigeria (PCN), a name duly registered with the Corporate Affairs Commission.
The case of the Respondents on the other hand was that it was the turn of the Mid-East Synod of the Appellant to produce the General Assembly Moderator for the period of August 2010 to August 2016 in accordance with the Constitution of the Church, the P.C.N Policies for the General Assembly 1987 to 2002 vol.1, which had been in use since the 1999 General Assembly Conference at Ikom and the Administrative Manual of the Appellant. The Respondents stated further that one Rev. N. N. Eke, was to stand election with two other priests, namely Rev. Dr. Agwu Onwunta and Rev. Orji Ude Orji on 7th May, 2010, but after looking at the Constitution of the Church, the Synod discovered that only Rev. N. N. Eke was qualified, being the only person who was a graduate, was above 45 years of age and had over 25 years of post-ordination experience. The Respondents stated that the members of the Synod voted Rev. N. N. Eke who was elected by 45 “yes” votes and 20 “no” votes out of the 65 delegates. The Respondents further stated that the first Respondent communicated the exercise to the Appellant’s General Assembly Meeting at Aba in May 21 to 22nd 2010, and it was adopted and accepted because the protest by some hired priest had no foundation. They averred further that the Thursday Initiative Group, prominent members of the Appellant, who intervened in the crisis on 12th August, 2010, also advised the Appellant to accept the election conducted by the Respondents on May 7th, 2010. It is that case of the Respondents that the Appellant instead, accepted the recommendation of the “Self Styled Eight Members Committee” to disqualify Rev. N. N. Eke and Rev. Dr. Agwu Onwunta thereby depriving the Mid-East Synod her right under the Appellant’s Rules and Regulation. They stated that by bringing in Rev. Prof. Emela Uka from East Synod which turn was not to produce the General Assembly Moderator, the Appellant was in contravention of the Rules guiding the Church and the Respondents were no longer part of it and then proceeded to declare their independence with the name, “Reformed Presbyterian Church of Nigeria” with all the paraphernalia of a Church Organization. The Respondents also stated that the worshippers in all the churches in the former Mid-East Synod built all the churches and furnished them with their own money without the assistance from the Appellant or any other Synod.
In proof of her case, the Appellant called a sole witness and tendered 20 exhibits. The Respondents on the other hand called 2 witnesses and tendered 14 exhibits. At the conclusion of trial, the learned trial Judge granted the reliefs sought by the Respondents and declared that the properties in the former Mid-East Synod belonged to those who built or acquired them with their money and not the Appellants who did not establish that she contributed a dime in building the churches that even pre-dated her existence as a trustee.
Dissatisfied with the decision of the Court below, the Appellant invoked the Appellate jurisdiction of this Court vide a Notice of Appeal containing twenty one grounds dated 6th June, 2016 and filed on the same date. (See pages 692 to 705 of the record of appeal).
In line with the Rules of this Court, parties filed and exchanged their respective Briefs of arguments. The Appellant’s Brief is dated 9th November, 2017 and filed on 15th November, 2017. The Appellant also filed a Reply Brief dated 3rd December, 2018 and filed on 5th December, 2018. Both Briefs were settled by UCHE S. AWA ESQ. who at paragraph 3.01 of the Appellant’s Brief distilled four issues for the determination of this appeal to wit:
“(a) Whether the Learned Trial Judge was right in granting the Counter Claim of the Respondents when there was no pleading in support of the reliefs sought by them. (Grounds 1, 2, 3 and 8).
(b) Whether the Learned Trial Judge was right in awarding property of the Appellants, a duly incorporated entity under Part C of the Companies and Allied Matter Act – to a segment of the Appellant in the Mid East Synod rather than vest same on the Registered Trustees of the Appellants. (Grounds 5, 6 and 9).
(C) Whether the Learned Trial Judge was right in holding that PW1 did not give evidence and so the case of the Appellant must fail when in fact he relied on and used all the exhibits tendered in evidence by PW1 and cross examination extracted from PW1 (Grounds 10, 11, 12, 13, 14, 15, 15, 17 and 18) (sic).
(d) Whether the Judgment of the Trial Court actually flowed from evidence adduced at the trial. (Ground 12).”
The Respondents’ Brief on the other hand is dated 17th July, 2018 and filed on the same date. The Respondents also filed a Respondents’ Notice dated 17th April, 2019. The Respondents’ Brief of Argument on the Respondents’ Notice is dated 1st November, 2019 and filed on the same date. Both Briefs were settled by DR. BENJAMIN O. IGWENYI (MON) who at paragraph 3.01 of the Respondents’ Brief distilled five issues for determination of the appeal to wit:
“1. Whether the failure of the defendants/respondents to expressly adopt or incorporate their statement of defence as part of their counter claim was fatal to their case before the Lower Court. (Distilled from grounds 1, 2, 3 & 8).
2. Whether the ‘slip’ or threat by the Lower Court that it will discountenance the evidence of PW1 on account of non-adoption during trial prevented it from judiciously and judicially evaluating the facts and evidence of parties before it (distilled from grounds 10, 11, 12, 13, 14, 15, 16, 17 & 18)
3. Whether the vesting of right of ownership of all the church property in the former Mid-East Synod of the appellant on the respondents based on facts and evidenced before the Lower Court was a perverse decision which led to miscarriage of justice (distilled from grounds 5, 6 & 9)
4. Whether the declaration of Rev. Nzie Nsi Eke as the duly nominated General Assembly Moderator of the Appellant based on facts and evidence before the Court was a perverse decision that led to miscarriage of justice (distilled from grounds 1, 2 & 3)
5. Whether the judgment of the Court was against the weight of evidence adduced at the lower Court (distilled from ground 21).”
In the Brief in support of the Respondents’ Notice, the Respondents distilled a sole issue to wit:
“Whether the registration of the Respondents’ Religious Organization-Reformed Presbyterian Church of Nigeria by the Cooperate Affairs Commission, Abuja on February 4, 2016 (Three Months before the delivery of the judgment by the Lower Court on 17th May, 2016) has not regularized or legalized their status and the grant made in their favour assuming that the reason given by the Lower Court for awarding church property to the Respondents in the former Mid-East Synod cannot be sustained under the reasons given by that Court.”
The appeal was heard on 11th March, 2020 wherein counsel to the parties adopted their briefs and made oral adumbrations in respect of their diverse postures in the appeal.
APPELLANT’S SUBMISSION
On issue No.1, learned counsel to the Appellant submitted that while filing their statement of defence at the Lower Court, the Respondents also filed a counter claim. He submitted further that there were no averments or pleadings filed by the Respondents in support of the said counter claim, that the Respondents did not adopt their statement of defence as their pleadings in support of their counter claim and that all the Respondents did was to set out their reliefs and nothing more. Counsel submitted that in filing a counter claim, the counter claimant must disclose the facts upon which the counter claim is based because there must be averments in the counter claim to which the plaintiff in the suit can respond to by way of reply. He relied on Order 10 Rule 3 of the Federal High Court Rules and submitted that a counter claim is a separate action which has facts in support of the claims contained therein and that if there are no facts pleaded to support the claim contained therein, the action will fail on arrival. He referred this Court to the case of OGBONNA V. A.G. IMO STATE (1992) 1 NWLR (pt. 220) 647.
He submitted that granting the counter claim of the Respondents without affording the Appellant the opportunity to react as it were amounted to denial of the Appellant of her right to be fairly heard. He referred this Court to the case of NARINDEX TRUST V. NICMB (2001) 10 NWLR (pt. 721).
On issue No.2, counsel submitted it is not in dispute that the Appellant is an association registered under Part C of the Companies and Allied Matters Act and that the learned trial Judge was in no doubt aware that the Appellant instituted the action as a registered trustee and so entitled to enjoy the statutory flavor attached to her legal entity. He referred this Court to Section 679(1) of the Companies and Allied Matters Act. He argued that the statutory powers of registered trustees to hold, acquire, transfer, assign or otherwise deal with property belonging to the association is not compromised under law and that no other person can deal with the property of an association registered under Part C of the CAMA and/or acquire same other than its registered trustee. Counsel submitted that the learned trial Judge erred when he held at page 689 of the record that the property of the Appellant in Mid East Synod remained that of the worshippers of Presbyterian Church of Nigeria, Mid East Synod.
On issue No. 3, he submitted that it is the contention of the learned trial Judge that PW1 did not adopt his deposition and so, he did not give evidence in the Lower Court. He submitted further that the failure of PW1 to specifically employ the word ‘adopt’ in his evidence-in-chief did not render his statements on oath not to be properly before the Lower Court. He submitted that having stated and accepted that PW1 gave evidence, the Lower Court, was wrong to hold that throughout the said evidence of PW1, he did not adopt his statement on oath.
He submitted that the Respondents in their Reply on points of law to the Appellant’s final written address raised the issue for the first time that PW1 did not adopt his written depositions. He submitted further that the failure of the Court to afford the Appellant the opportunity to address the Court on this issue, which was raised for the first time at the point of rejoinder, on points of law, amounted to denial of fair hearing to the Appellant. He referred this Court to the case of OJUKWU V. ONYEADOR (1991) 7 NWLR (pt. 203) 286 @ 311. He submitted that if the Court observed that PW1 had not adopted his witness statements, the Court ought to have inquired from counsel to know if the witness was withdrawing or adopting his statements, rather than allowing documents to be tendered and cross-examination done. He submitted further that to act as the Court below did would amount to blowing hot and cold at the same time. It was his contention that the Trial Court having allowed the cross-examination of PW1, allowing the tendering of documents and subsequently, using the exhibits tendered by PW1, as well as the evidence tendered in the proceedings, cannot turn round to hold that PW1 did not tender any evidence before the Court. He contended further that where the deponent has confirmed his deposition and did not withdraw it but is later cross-examined; the adoption of his deposition should be taken as a matter of course. On the other hand, counsel argued further that the trial Court can ignore the failure of PW1 to use the word “adopt” and treat it as a mere irregularity that should not nullify the evidence of PW1. He therefore urged this Court to treat the non-compliance as mere irregularity that should not vitiate the evidence-in-chief of PW1.
On the last issue, counsel submitted that the Trial Court did not properly evaluate the evidence tendered by the parties it. On the whole, he urged this Court to allow this appeal, set aside the decision of the Court below and grant all the reliefs of the Appellant in the lower Court.
RESPONDENTS’ ARGUMENTS
On issue 1 distilled by the Respondents, counsel submitted that the Respondents reacted to the Appellant’s Statement of Claim, supplying all details including documentary references which addressed all the issues complained by the Appellant and thereafter, after the last paragraph of Statement of Defence, counter-claimed and numbered the counter-claim 1 to 7. He submitted further that there was no arm of the Counter Claim that had no averments in the statement of defence which necessitated the relief. It is his contention that if the Appellant is right as it claimed, then why did it file a Reply to the Statement of Defence and Reply to the Counter-Claim?
Counsel contended that the Respondent’s counter claim fulfills all the requirements of Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009. It is the submission of counsel that the Respondents merely added their counter-claim to their defence and there is nothing contained in the counter-claim that were not captured in one or more paragraphs of the statement of defence.
On issue No. 2 distilled by Counsel to the Respondents, Counsel aligned with the submission of the Appellant that the Appellant gave evidence in compliance with the rules of the Trial Court. (See paragraph 4.12 to 4.14 of the Respondents’ Brief). Counsel however submitted that the comment of the Trial Court that it would discountenance the evidence of the Appellant because of non-adoption during the trial was a slip or mistake of the trial Court that is incapable of affecting the case of the Appellant. It is the contention of the Respondents that the comment of the trial Judge was a mere slip that did not prevent it from evaluating the evidence before him. Counsel argued that not all errors or mistake in a judgment would lead to its reversal on appeal. He argued further that for an Appellate Court to reverse such a judgment, the error must be substantial to warrant reversal on appeal. He referred this Court to the case of ADEYEMI V. THE STATE (2014) 13 NWLR (pt. 1423) pg. 132 ratio 1.
He urged this Court to hold that the mistake of the Trial Court in stating that it was discountenancing the evidence of PW1 and thereby dismissing the Appellant’s claim is not based on non-adoption of written statement, but on the fact that the Appellant’s case being weaker than that of the Respondents and that the decision of the Trial Court is not perverse and did not lead to a miscarriage of justice.
On whether the Trial Court was right in vesting the ownership right of all the church’s property in the former Mid-East Synod of the Appellant on the Respondents, Counsel submitted that Section 596 of the CAMA made the Board of Trustees, trustee of the property of the members while ownership resides in the worshipers and members of the various congregations. He submitted further that there is a difference between the legal consequences of the words “ownership” and “trusteeship”. He submitted that the Trial Court in its judgment went further to determine the questions of who built the parishes, who acquired them and whether same was built on behalf of the trustees of the Presbyterian Church of Nigeria. He submitted further that the findings of the Trial Court included that the churches in the Mid-East Synod were built by the worshipers and parishioners as attested to by the Appellant’s sole witness. Counsel argued that Section 596 of CAMA intends that a trustee should act as a manager of a property of members of an association or body or community if the basis of the union has not been destroyed by any of the parties, that is, repudiation of contact of trustee-members of the body. He submitted that since the Appellant have destroyed the basis of their coming together, the members should be allowed to take control of the acquired property and move on. He submitted further that the Appellant did not state in her pleadings that she built or equipped any of the churches in the former Mid-East Synod and admitted under cross-examination through PW1, its sole witness that the churches were built by the worshipers. It is the submission of counsel that the Appellant did not cross-examine the Respondents’ witnesses on this issue of who built or acquired the property in the former Mid-East Synod of the Appellant. Counsel therefore urged this Court to hold that interpreting Section 596 of CAMA on the face of it without due regard to substantial justice will lead to loss of confidence in the law by the masses of this country which is not good for our jurisprudence. He therefore urged this Court to resolve this issue in favour of the Respondents.
On issue No. 4, counsel submitted that the nullification of the election of their constitutionally elected Moderator General because of mere protests instead of organizing a fresh election between the Rev. N.N. Eke and Rev. Dr. Agwu Owunta to represent the Mid-East Synod amounted to an affront on the Constitution and all other laws guiding the Appellant. He submitted further that for the Appellant to have picked Rev. Prof. Emela Uka, a retired priest at 65 and also a retired Professor at 70 from another Synod, that is, East Synod whose turn it was not to produce was another aberration by the Appellant. He referred this Court to the P.C.N Policies – 1987 to 2002 (Exhibits C tendered by the Respondents and B2 of the Appellant).
Counsel urged this Court not to disturb the evaluation of the Trial Court in this regard.
On issue No. 5, it is the submission of counsel that the judgment of the Trial Court is not against the weight of evidence and on the whole, he urged this Court to dismiss this appeal for lacking in merit.
REPLY BRIEF
Replying to the Respondents’ issue No. 1, learned counsel to the Appellant submitted that in the absence of pleadings, i.e. counter-claim as an independent action, the Respondents’ have no pleadings in support of their claims, therefore robbing the trial Court of jurisdiction. He referred this Court to the case of MADUKOLU V NKEMDILIM (1961) ALL NLR 587 at p. 594. He submitted further that the Respondents’ situation is not one that should be categorized as a mere procedural irregularity and that for a non-compliance to be termed a procedural irregularity which can be waived, the Court usually considers if such non-compliance is curable or not. He argued that where it is not curable, it is not deemed mere procedural irregularity which can be waived, because such non-compliance goes to jurisdiction. He referred this Court to the case of ADEGOKE V. ONA IWA MIMO C & S (200) FWLR (Pt. 28) @ 2146 – 2147, Paras. C – F.
On the need to properly plead a counter-claim, Counsel referred this Court to the case of ALI V. SALIHU (2011) 1 NWLR (pt. 1228) 227.
In respect of the Respondents’ issue No. 2, counsel submitted that what the Lower Court merely did was a pretended evaluation of the evidence before it and that the trial Court discountenanced the evidence of PW1 whilst dealing with the principal relief of the Appellant only to do a volte face to use the same discountenanced evidence as a hanger to justify granting the reliefs of the counter-claim. He therefore urged this Court to invoke Section 15 of the Court of Appeal Act in re-evaluating the evidence led by parties during the trial of this suit as the trial Court abdicated its primary duties in this regard.
On issue Respondents’ issue No.3, counsel submitted that provisions of CAMA and other legal frameworks on incorporated trustees for all purposes recognizes the whole and a little segment of it and that the act of giving names (such as “Mid-East Synod”) to a part of a body is for administrative convenience and is never intended to confer a status, interests or rights distinct from and adverse to the parent body (such as the Presbyterian Church of Nigeria). He submitted that the law on the subject does not envisage a situation where a part of a corporate body such as an incorporated trustee would lay claim to being the owner of the properties of the body and that such possibility would lead to chaos and that informed registration of a few persons as trustees of an association of people to obviate a maddening and unruly crowd of members.
On issue 4 distilled by the Respondents, the Appellant’s counsel submitted that the Trial Court had no evidence before it to justify the declarations it granted and that the entire declarations granted by Trial Court were based solely on the purported Counter-Claim of the Respondents.
On whether the trial Court properly evaluated the evidence placed it before reaching its decision that is being challenged now, counsel to the Appellant submitted that the trial Court disregarded and discountenanced valid testimony of PW1 (the Appellant’s sole witness) and other evidence adduced by the Appellant. He submitted further that the Court made use of evidence that was not supported by any pleaded facts in granting the reliefs in the Respondents’ counter-claim, even when the said counter-claim was dead on arrival.
ARGUMENTS ON THE RESPONDENTS’ NOTICE
On whether the registration of the Respondents’ religious organization – the Reformed Presbyterian Church of Nigeria by the Corporate Affairs Commission, has not regularized their status to enable them to own properties as a religious organization, Learned counsel to the Respondents submitted that the Appellant argued on the propriety of Respondents’ religious organization from owning property without knowing that the said organization had been registered by the regulatory institution. He submitted further that the Trial Court too did not know that the church had been so registered, but because of the preponderance of evidence, the Trial Court answered the question placed before it as to who are the owners of the properties of the church located in the former old Mid-Easy Synod of the Appellant.
For the purpose of the Respondents’ Notice, it is the submission of the Respondents that the decision of the Lower Court should be affirmed on the ground that their religious organization had been registered and has no disability again under Section 596 of CAMA to own property awarded to them by the Lower Court. He referred this Court to the case of UNITED BANK OF AFRICA PLC. V. CORPORATE AFFAIRS COMMISSION & 5 ORS. (2016) ALL FWLR (pt. 863) pg. 1761 Ratio 1.
He therefore urged this Court to hold that by virtue of the fact that the RPCN had become a legal entity, capable of owning property at the time judgment of 17th May, 2016 was entered, that the award to her by the Lower Court using a different reason should be superseded and sustained by that act of registration. He referred this Court to ORDER 9 RULE 1 OF COURT OF APPEAL RULES.
On the whole, he urged this Court to dismiss the appeal with heavy cost.
RESOLUTION OF ISSUES
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments, (inclusive of the Brief of argument on the Respondent’s Notice) filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.
Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant and that which was raised by the Respondents in the Respondents’ Notice, I am of the opinion that the below stated issues are apt for the determination of the appeal:
“(a) Whether there was a valid counter-claim before the Court below to ground the reliefs granted by it to the Respondents?
(b) Whether from the decision of the Court below, the Court discountenanced the evidence of PW1 leading to the dismissal of the Appellant’s claims?
(c) Whether the Learned Trial Judge was right in awarding property of the Appellants, a duly incorporated entity under Part C of the Companies and Allied Matter Act – to a segment of the Appellant in the Mid-East Synod rather than vest same on the Registered Trustees of the Appellants?
(d) Whether the learned trial judge properly evaluated the evidence placed before it before reaching its decision that is being challenged now on appeal?
RESOLUTION OF ISSUE NO. 1
A counter claim is a legal procedure which allows a defendant to maintain an action against a plaintiff as if it is a separate suit. It is a cross – action and is considered as an independent action though the defendant, for convenience and speed, usually joins it with the defence. The Appellant’s contention is that the Respondents in their joint statement of defence and counter-claim failed to plead facts in support of their counter-claim. The issue was considered by the trial Court at page 681 of the record of appeal. In resolving this issue, the Court held as follows:
“Here Plaintiff had argued that there is no pleading in support of the counter claim of the Defendants but there are averments in the statement of defence and as pointed out by Counsel of the Defendants which is sufficient facts upon which the counter claim is based.”
I have perused the Statement of Defence filed by the Respondents at pages 266 – 277 of the record of appeal. After the 37 paragraph Statement of Defence spanning 10 pages, the Respondents’ counsel at the Trial Court introduced the Respondents’ counter claim. It is evident that in the course of introducing the said counter claim, the Respondents failed to plead any averments in support of the counter claim neither did they incorporate the averments pleaded in the statement of defence in support of their counter claim. The provision of Order 13 Rule 35(6) of the Federal High Court Civil Procedure Rule, 2009 provides that:
“Where any defendant seeks to rely upon any ground supporting a right of set-off or counter-claim, he shall in his defence state specifically that he does so by way of supporting a right of set off or counter-claim.”
The Respondents were therefore required to state specifically that they relied on the facts pleaded in the statement of defence to support their counter – claim. This is done by the use of the expression, “And by way of Counter – Claim the defendant repeats the allegation contained” in the relevant paragraph of the defence. Alternatively, they should have set out those facts relied on for the counter-claim in the counter-claim.
Facts material to the counter claim which are only alleged in the defence but are not repeated under “Counter Claim” or incorporated therein by reference as illustrated above, cannot be used by the defendant in establishing the counter- claim. The requirement set out above is not a matter of technicality as canvassed by Respondents’ counsel. Rather it is a matter of putting the opposite side on notice of the facts relied upon by the counter-claimant to support the counter-claim. This helps to avoid any element of surprise and makes for fair hearing. The Respondents failed to comply with Order 13 Rule 35(6) of the Federal High Court (Civil Procedure) Rules 2009. Their reliance on Order 10 Rule 3(1) of the same rules offers no help as the provision only provides for the procedure to be adopted by a defendant who alleges in an action that he has any claim or is entitled to any reliefs or remedy against the plaintiff. The said Order does not confer on such a Defendant the latitude to exclude pleadings in support of his counter-claim which to all intent and purpose is a separate action. See NDUKA & ORS V. AGBAI & ORS (2018) LPELR – 44270 (CA); RIKICHI & ORS V. GAMBO (2019) LPELR – 47676 (CA).
Flowing from the hills of the foregoing, I am of the firm view that the Trial Court erred in the resolution of this issue and same is hereby resolved in favour of the Appellant and against the Respondents. No claim can be granted in the absence of pleadings thereto. The effect of this is that all the reliefs sought by the Respondents and granted by the trial go to no issue and same is hereby set aside.
RESOLUTION OF ISSUE TWO
I shall proceed to decide on whether from the decision of the Court below, the Court discountenanced the evidence of PW1 leading to the dismissal of the Appellant’s claims. During the hearing of the suit at the Trial Court, the Appellant in discharging the evidential burden imposed on it called one Rev. O. B. Ekpenyong who testified as PW1. It is the contention of the Appellant that the Trial Court held that PW1 did not adopt his deposition and so, he did not give evidence. This issue was considered by the learned trial Judge at page 676 – 677 of the record of appeal. The trial Court held as follows:
“Counsel to the Plaintiff submitted that the 1st Plaintiff witness swore before a Commissioner of Oaths at this Court’s Registry and that he adopted his sworn deposition in Court without any objections from the Defendants and by the virtue of this, his depositions have been regularized.
I have studied the evidence of the 1st Plaintiff witness in this suit, under cross-examination, he did agree that his two statements (his deposition and oath were signed in the law firm of his former Counsel A.A. Asoquo) I have also studied the cases of UDEAGHA vs OMEGARA (Supra) the Court did say per OGUNWUMIFU J.C.A (sic) at pg. 195 that where a statement of witness in a case are not sworn to before a person duly authorized to take Oath in contravention of S. 90 of the Evidence Act he subsequent adoption of their written deposition after the witness have been sworn in open Court to give oral evidence regularizes the depositions.
In the present case, throughout the length and breadth of the evidence of the 1st Plaintiff Witness, he never did adopt his deposition on Oath so that this case is not applicable.
The depositions on Oath of 1st Plaintiff Witness is thus in contravention of the Evidence Act 2011 (as amended) and this Court will discountenance it with the resultant effort that there is no evidence in support of the Plaintiff’s case.”
The Respondents have submitted that the comment of the Trial Court that it would discountenance the evidence of the Appellant because of non-adoption during the trial was a slip or mistake of the Court which did not prevent it from dispassionately evaluating the evidence before it. I have carefully read the decision of the Court, the excerpts relevant to the resolution having been elaborately reproduced above. I am of the firm view that the Trial Court failed to consider the evidence of the Appellant and the Court did discountenance the evidence of PW1 for admitting under cross-examination to have signed his written depositions in the office of his former counsel and for his failure to adopt the said depositions when testifying during the trial. I therefore do not agree with counsel to the Respondents that the holding of the trial Court regarding the testimony of PW1 was a mere comment which was mistakenly made. My reason for this is not misplaced as the trial Court further held at page 679 of the record as follows:
“Since the Plaintiff’s claim cannot be supported by any evidence, it must therefore fail and its case against the defendants dismissed. I shall now proceed to deal with the counter claim of the defendants.”
Now, having ascertained that the Trial Court did discountenance the evidence of the Appellant’s sole witness which undoubtedly led to a dismissal of the Appellant’s claims, I shall proceed to consider whether the Court was right to have discountenanced same. The testimony of PW1 can be gleaned at pages 609 – 619 of the record of appeal. At page 609 of the record of appeal, the witness testified that “On 9/5/11 is when I went to a deposition presenting my evidence and on 3/5/13 I swore to further deposition presenting more testimony.”
During cross-examination, the witness testified at page 617 of the record of appeal that “A. A. Asuquo first conducted this case. The documents of 9/5/2011 and 3/5/13 was signed in the chambers of A. A. Asuquo the former counsel.”
On the consequences of a written deposition not signed in the presence of an individual so designated by law, Section 112 of the Evidence Act 2011 (as amended) is instructive on this note. The said section provides as follows:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.”
It must be stated here that a written statement of a witness on oath is akin to an affidavit which is required by Section 90 (i) of the Evidence Act (supra) to be signed by the deponent or witness. However, the line of distinction between an affidavit and written deposition is that a written statement on oath only becomes legally admissible evidence until it is being formally adopted by the deponent during trial. In other words, a Written Statement on Oath will only be evidence to be used by the Court in the determination of the Plaintiff’s Claim, if it has been adopted by the person who deposed to it as his testimony during the trial. If it is not so adopted, it is deemed abandoned and therefore cannot be examined by the trial Judge. An Affidavit on the other hand is the evidence of the witness made in writing. Thus, whether or not the deponent appears in Court, such depositions are capable of being evaluated by the Court as evidence.
Having carefully perused the record of proceedings particularly pages 609 – 613 where PW1 was examined-in-chief, it is crystal clear that the said witness did not adopt his written deposition. This quagmire doubles the hurdle to be surmounted by learned counsel to the Appellant. The first which is that PW1 admitted to have signed his written depositions in the office of his former counsel in flagrant breach of the provisions of Section 112 of the Evidence Act (supra), while this procedural blunder could have been cured if the said witness adopted his depositions during the said trial. See the case of UDEAGHA & ANOR V. OMEGARA & ORS (2010) LPELR – 3856 (CA).
The failure of counsel to lead PW1 to adopt his written deposition in my considered opinion is an irregularity that cannot be waived by reason of the cross-examination of the said witness by the adverse party. Learned counsel to the Appellant made concerted efforts in paragraph 4.12 – 4.16 of the Appellant’s brief to persuade this Court into holding that non-compliance in this regard may be treated as a mere irregularity which will not nullify the testimony of PW1. The law is trite that the failure of a witness to adopt his written deposition, the statement cannot be used as a material in determining the case as same would be deemed abandoned. See GOAR V. DASUN & ORS (2009) LPELR – 4205 (CA). The argument and submission of the Appellant that when a witness appears before the Court and avails an adverse party the opportunity to cross-examine him, he must be deemed to have adopted his deposition, provided however, that he has not withdrawn his deposition does not hold water. This is not an issue that bothers on technicality as the learned counsel to the Appellant would like the Court to believe. See the case of ADEBOWALE V. ROBINSON (2018) LPELR – 44424 (CA).
I have held earlier that the Trial Court discountenanced the evidence of PW1 and it was not a mere slip or a mistake as submitted by the counsel to the Respondents. Also flowing from the forgoing, I see no reason why I should depart from the reasoning of the trial Court to the effect that since the deposition of PW1 were made before his counsel and not in the person designated by law and also the failure of the said witness to adopt his written deposition, the claim of the Appellant cannot be said to be supported by any evidence, so therefore, it must fail in its entirety.
This issue is hereby resolved against the Appellant.
Having held that the case of the Appellants must fail by reasons adduced above, the case of the Respondents on the other hand is bound to also fail for their failure to plead any averment in support of their counter-claim. I am of the firm view that the resolution of issues one and two distilled by this Court has sufficiently put the other issues to rest. Since the Respondents have no pleadings in support of their counter-claim, all the reliefs granted to them including the award of the property in dispute have no foundation to stand and are hereby set aside.
For the avoidance of doubt, I hold that the resolution of this appeal has also determined the faith of issue distilled by the Respondents in their Brief in support of their Respondents Notice. The issue so distilled in the Brief in support of the Respondent’s Notice is hereby resolved against the Respondents.
On the whole, this appeal succeeds only in part, the Trial Court was right to have discountenanced the evidence of PW1 for reasons adumbrated above. However, I set aside all the reliefs granted by the Trial Court to the Respondents at pages 689 to 691 for failure of the Respondents to plead averments in support of their counter claim. Both claims and counter-claims of the Appellant and that of the Respondents are hereby dismissed. There is no order as to cost.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead Judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal partly succeeds and I adopt the consequential orders in the lead judgment as mine.
Appearances:
UCHE S. AWA ESQ., with him, CHINEDU AWA, ESQ. For Appellant(s)
BENJAMIN O. IGWENYI (MON), with him, C. C. EKPAGU, ESQ. and O. Y. EZE, ESQ. For Respondent(s)
