UNION BANK OF NIGERIA PLC v. ESTATE OF LATE CLEMENT OGEH
(2018)LCN/12081(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of October, 2018
CA/L/1076/2015
RATIO
COURT AND PROCEDURE: THE ISSUE OF SIGNING ORIGINATING SUMMON
“The issue of signing of an originating process or the issue of complaint of failure to sign a Writ of Summons raises the issue of competence, which is a threshold issue of jurisdiction and once raised even for the first time on appeal either by any of the parties as in the instant appeal, or even by the Court suo motu must be resolved first one way or the other since it does not give the Court any joy seeing the parties and itself belaboring in vain to determine on the merit matters which are incurably defective and hopelessly incompetent beyond redemption. See Petrojessica Enterprises Ltd & Anor V. Leventis Technical Company Ltd (1992) 5 NWLR (Pt 244) 675 @ p. 693.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COURT AND PROCEDURE: WHO CAN SIGN A SUMMON?
“In SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ pp. 331- 332 the apex Court per Onnoghen JSC., (as he then was, now CJN), had with finality restated the law inter alia thus: ‘…A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply write his own name over and above the name of his/or firm in which he carries out his practice. It has been argued that noncompliance with the provision of Order 26 Rule 4(3) supra is mere irregularity…as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)..the provision of the Rules of Court involved herein are, by the wordings mandatory not discretionary.'” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COURT AND PROCEDURE: LOCUS STANDI
“In law, locus standi denotes the legal right of a party to an action to be heard in litigation before a Court of law and thus where a Claimant has no locus standi to bring an action, the action initiated by him becomes incompetent and liable to be struck out since the Court would lack the jurisdiction to entertain it. See Guda V. Kitta (1999) 12 NWLR (Pt. 629) 21. See also Okafor V. Asoh (1999) 3 NWLR (Pt. 593) 82; Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423; Akinnubi V. Akinnubi (1997) 2 NWLR (Pt. 486) 144; Ejikeme V. Amaechi (1998) 3 NWLR (Pt. 542) 456; Waziri V. Danboyi (1999) 4 NWLR (Pt. 598) 239; Ayoola V. Baruwa (1999) 11 NWLR) (Pt. 628) 595.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
TORT LAW: DUTY OF CARE
“In law, therefore the proof of the existence of a duty of care, its breach and resultant damages is a sine qua non for a successful claim in negligence. In all cases in which damages is being claimed for negligence it may be well for trial Courts to bear it in mind that negligence is a matter of or question of fact and not law and thus a finding as of fact of the act of omission or commission of the Defendant must first be made before damages could be assessed. See M. O. Kanu & Sons Ltd Co. Ltd V. First Bank of Nigeria Plc (2006) LPELR 1797 (SC). See alsoAgbonmagbe Bank Ltd V. CFAO (1966) 1 All NLR 490; Diamond Bank Ltd V. Partnership Investment Co Ltd & Anor (2009) 18 NWLR (Pt. 1172) 67; Alhaji Kalla V. Jarmakani Transport Ltd (1961) All NLR 778); Alhaji Abubakar & Anor V. Joseph & Anor (2008 13 NWLR (Pt. 1104) 307.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
ESTATE OF LATE CLEMENT OGEH
(Represented by: Mrs Esther Ogeh widow/guardian of Alice Onome Oge and Favor Eruore Ogeh) – Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State, Coram: S. O. Nwaka J. in Suit No. ID/189/2010: Estate of Late Clement Ogeh & Anor V. Union Bnak of Nigeria Plc., delivered on 30/9/2015, wherein some of the claims of the Respondent as Claimant were granted against the Appellant as Defendant.
The Appellant was dissatisfied with the said judgment and had promptly appealed against it to this Court vide its notice of appeal filed on 29/10/2015 on six grounds of appeal at pages 433 – 442 of the record of appeal. The record of appeal was duly transmitted to this Court on 2/11/2015. The Appellant’s brief was filed on 1/12/2015. The Respondent’s brief was filed on 1/6/2017 but was deemed on 6/6/2017. The Appellant’s reply brief was filled on 4/8/2017 but was deemed on 17/9/2018.
At the hearing of this appeal on 17/9/2018, Solomon Edoh Esq., learned Counsel for the Appellant, appearing with O. A. Ojo Esq., adopted the Appellant’s brief as their arguments in support of the appeal and urged the Court to allow the appeal and set aside the judgment of the Court below and to dismiss the suit of the Appellant. On their part, A. Adeogun Esq., learned Counsel for the Respondent, appearing with M. Alakiri Esq., B. Olowoyeye Esq., C. C. Onwemere Esq., and Adeola Lewis Esq, adopted the Respondent’s brief as their argument in opposition to the appeal and urged the Court to dismiss the appeal and to affirm the judgment of the Court below.
By a Writ of Summons filed on 9/2/2010 by the Respondent as 1st Claimant and Mrs. Esther Ogeh as 2nd Claimant before the Court below, they claimed against the Appellant as Defendant, the following reliefs, namely:
1. A DECLARATION that the deceased, Mr. Clement Ogeh was a valid customer of Union Bank of Nigeria Plc and had the right to operate his account and do banking transactions in any of the numerous branches of the Defendant.
2. A DECLARATION that the deceased by virtue of being a valid customer of the Defendant, was at the Oshodi Branch of the Defendant to carry out legitimate banking transaction on the 1/3/2007 in the banking hall where he was shot and grievously wounded which led to his death.
3. A DECLARATION that the Defendant owed a duty of care to the late Mr. Clement Ogeh, as a customer within its premises, particularly at its Oshodi Branch as at the date of the armed robbery operation by ensuring that requisite security measures were in place for the safety of their lives while conducting legitimate business within its banking hall and premises.
4. A DECLARATION that the Defendant failed in its duty of care to the late Clement Ogeh by not providing the requisite security at its Oshodi Branch on the day of the armed robbery operation on 1/3/2007.
5. A DECLARATION that consequent upon the breach of care by the Defendant, the said Mr. Clement Ogeh was grievously injured by gunshots from the armed robbers which subsequently led to his death.
6. The Claimants claim the sum of N1, 572,217,421. 00 being Special Damages in respect of expected earnings of late Mr. Clement Ogeh on the 1st day of March 2007 within the banking hall of the Defendant?s Oshodi Branch as a result of its negligence and breach of duty of care.
7. The sum of 200, 000, 000.00 as General Damages.
8. Cost of the action assessed at N6, 000, 000. 00. See pages 1 – 3 of the record of appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent, as Claimants, as can be gleaned from the pleadings and evidence, both oral and documentary led at the trial was that the deceased, Clement Ogeh was a young man of 34 years and a customer of the Appellant Bank, with which he operated an account. On the 1/3/2007, the deceased was in the Banking Hall of the Appellant’s Oshodi Branch to conduct banking business, when a group of armed robbers stormed the said bank and in the course of the robbery operation, the deceased was grievously wounded by bullets from the armed robbers and he subsequently died inside the banking hall and his corpse was deposited at the LASUTH mortuary by the Nigerian Police who arrived after the robbers had left the scene.
After the corpse of the deceased was deposited at the LASUTH mortuary, the Appellant did not make any contact whatsoever with the family of the deceased and the family had to mourn their loss alone and had to singlehandedly bury the corpse of the deceased at their sole expense and not even a letter of condolence was received from the Appellant or was any representatives sent to the family of the deceased to condole with them or attend the funeral rites. The deceased left behind a mother, father, heavily pregnant wife and a daughter, Alice Onome Ogeh amongst others, to mourn him. Later the wife gave birth to the 2nd child: Favor Eruore Ogeh after his death.
However, the deceased’s family in October 2007 wrote the Appellant seeking compensation but received no response and consequently, the Respondents approached their Solicitor to take up the matter, which led to exchange of series of letters between the parties with a view to amicably resolving the issue of compensation to the immediate family and dependents of the deceased but all the efforts yielded no positive result. The Respondent had to take out a writ of summons for damages for negligence under the Fatal Accidents Law of Lagos State. See pages 1 – 9 and 39 – 69 of the record of appeal.
On the other hand, the gist of the case of the Appellant, as Defendant, as can be gleaned from its pleadings and evidence, oral and documentary led at the trial was that on 1/3/2007, the deceased person, Mr. Clement Ogeh, a customer of the Appellant bank, visited the Oshodi branch of the Appellant bank in the normal course of banking business and while there dare – devil armed robbers numbering about seven invaded the premises of the Appellant shooting sporadically and subdued the heavily armed security men stationed at the bank, killing one of the security men and disarming another. Having subdued the security men, the armed robbers forcibly broke into the Appellant’s banking hall, breaking down the metal and glass doors installed at the entrance and whilst in the banking hall and still shooting sporadically, the armed robbers shot and killed the deceased.
As part of its security measures, the Appellant had seven security operatives stationed at the bank, three of whom were members of the Nigerian Mobile Police, two of whom lost their lives while protecting the bank’s customers. Other security measures included the installation of security cameras in the bank coupled with the Appellant’s order for the supply and installation of electronic mental detector doors, which was a novel technology in Nigeria at the time, having only been introduced barely two months prior to the incident subject matter of the suit. See pages 39 – 69 of the record of appeal.
The parties filed and exchanged pleadings and the matter proceeded to trial on the Respondent’s Statement of Claim filed on 9/2/2010 and the Appellant’s Statement of Defense filed on 16/4/2010. At trial, the Respondents called four witnesses who testified as CW1, CW2, CW3 and CW4 and tendered some documents in evidence as Exhibits. On its part, the Appellant called a sole witness, who testified as DW1 and tendered some documents in evidence as Exhibits. At the conclusion of trial and addresses by Counsel to the parties, the Court below proceeded to deliver its judgment on 30/9/2015, wherein it granted some of the claims of the Respondent against the Appellant, hence the appeal to this Court. See pages 1 – 9, 125 – 127 and 359 – 367 of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the 6 grounds of appeal, namely:
1. Whether the Court below erred in law when it exercised jurisdiction over the Respondent’s Suit despite the obvious fact that the Writ of Summons dated 9/2/2010 was not signed at all? (Distilled from ground 1)
2. Whether the Court below had the jurisdiction to entertain any proceedings in the Respondent’s Suit when the Respondent is (i) not a proper person, with legal personality, known to law and (ii) lacks the locus, under the Fatal Accidents Act to commence the action? (Distilled from grounds 2 and 4)
3. Whether the totality of the evidence before the Court below supported a finding of negligence against the Appellant? (Distilled from grounds 3, 5 and 6)
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Court below rightly exercised jurisdiction in respect of this Suit?
2. Whether the Court below properly evaluated the evidence and rightly found that the Appellant was negligent and that it breached its duty of care to the deceased?
I have taken time to review the pleadings and evidence of the parties and considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below and it does appear to me that the three issues for determination as distilled in the Appellant’s brief are the three proper issues arising for determination in this appeal, a consideration of which, in my view, would cover the two issues distilled in the Respondent’s brief. I shall proceed to consider and resolve these three issues ad seriatim, commencing with issue one anon!
ISSUE ONE
Whether the Court below erred in law when it exercised jurisdiction over the Respondent’s Suit despite the obvious fact that the Writ of Summons filed on 9/2/2010 was not signed at all?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one learned Counsel for the Appellant had submitted that the Court below erred in law when it exercised jurisdiction over the Respondent’s suit and delivered its judgment on 30/9/2015 despite the obvious fact that the Writ of Summons was not signed at all and contended that in law before a Court can exercise its jurisdiction over a suit, such a suit must have been commenced vide an originating process duly signed in accordance with the laid down procedure either by the party or his legal practitioner and urged the Court to look at the Respondent’s Writ of Summons filed on 9/2/2010 and find as fact that it was neither signed by the Respondent nor by its legal practitioner as required by law and therefore, incompetent. Counsel referred to Order 6 Rule 2(3) of Lagos State High Court (Civil Procedure) Rules and relied on SLB Consortium Ltd V. NNPC (Supra) @ pp. 331 – 332; FGN V. Akinola (2014) LPELR – 23978(CA); Prof. Eyo Etim Nyong & Anor V. Mr Bassey Edet Otu & Ors (2012) LPELR – 8480(CA); Nigerian Army V. Samuel (2013)14 NWLR (Pt. 1375) 466 @ p. 482.
It was further submitted that by reason of the non signing of the writ of summons the Respondent’s suit, on which the judgment of the Court below was based, was not initiated by due process of law and therefore incompetent and contended that in law a Writ of Summons duly signed by either the legal practitioner or the Claimant is a condition precedent that must be fulfilled before the Court can exercise jurisdiction over the suit and urged the Court to hold that the mere putting of the name of the legal practitioner, one Aramide Adeogun Esq., on the Writ of Summons without affixing his signature on the said Writ of Summons rendered it incompetent and thus liable to be struck out and to allow the appeal and strike out the Respondent’s suit for being incompetent.
It was also submitted that with the incompetence of the Respondent’s suit rendering same a nullity, the resultant judgment of the Court below is itself rendered incompetent and a nullity liable to be set aside so that the invalid suit is also struck out as required by law and urged the Court to hold that by reason of the incompetence of the writ of summons the Court below also lacked the jurisdiction to have entertained and determined the incompetent suit and to allow the appeal, set aside the judgment of the Court below and strike out the Respondent’s suit. Counsel relied on Alabi & Ors V. Oyewumi & Ors (2015) LPELR – 24271(CA); EBN Ltd V. Halilco (Nig) Ltd (2006) 7 NWLR(Pt. 980)568 @ p. 584; Olagbenro & Ors V. Olayiwola & Ors (2014) 17 NWLR (Pt. 1436) 313 @ p. 371; SLB Consortium Ltd V. NNPC (2011)9 NWLR (Pt. 1252)317 @ p. 329.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether the Court below rightly exercised Jurisdiction in respect of the Respondent’s suit, learned Counsel for the Respondent had submitted that the Court below rightly exercised jurisdiction over the suit of the Respondent since in law jurisdiction is the authority which a Court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision and contended that going by the accepted meaning of what amounts to a ‘signature’, the Respondent’s suit was initiated vide a validly and properly signed Writ of Summons as required by law and urged the Court to hold that the Court below therefore had the jurisdiction, which it properly exercised over the Respondent’s suit and to resolve this issue in favor of the Respondent against the Appellant. Counsel referred to Order 3 of the High Court of Lagos State (Civil Procedure) Rules 2004; Order 3 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012; Webster’s New Twentieth Century Dictionary of The English Language (Unabridged) [2nd Edition; The Black’s Law Dictionary 9th Edition, and relied on Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
It was further submitted that in law any name, mark or writing used with the intention of authenticating a document amounts to a signature and contended that the Counsel to the Respondents signed the Writ of Summons by writing his name ‘Aramide Adeogun Esq.’ on the said Writ of Summons, a name registered on the Roll of Legal Practitioners enrolled to practice law in Nigeria and urged the Court to hold that the use of this name suffices as a ‘signature’ to render the suit competent and to resolve this issue in favor of the Respondent against the Appellant. Counsel relied on Registered Trustees of Apostolic Church Lagos Area V. Rahman Akinde (1967) NMLR 263; SLB Consortium Limited V. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ pp. 331- 332; Mahmoud V Ahmad & Ors. (2014) LPELR-24011 (CA); as distinguished from the facts in; FGN V. Akinola (2014) LPELR – 2397 (CA); Okafor V. Nweke (2007) 3 SC (Pt. II) 60; Prof Eyo Etim Nyong V. Mr. Bassey Edet Otu (2012) LPELR 8480; Nigerian Army V. Samuel (2013) 14 NWLR (Pt. 1375) 466; Olagbenro & Ors V. Olayiwola (2014) 17 NWLR ( Pt. 1436) 313; Alabi V. Oyewumi (2015) LPELR-24271 (CA); EBN Ltd V. Halilco (Nig) Ltd (2006) LPELR – 5611 (CA).
It was also submitted that in so far as the identity of the person signing a process is not blurred or lost in the signature, it will be erroneous and unjust as well as unfair to apply the decision in Okafor V. Nweke (Supra) to dismiss the case rather than distinguish it and contended that the Court have the duty to consider the facts of each case and not make a decision based solely on the principle of stare decisis and urged the Court consider the facts in this case and distinguish it from the cases relied upon by the Appellant and to hold that the Writ of Summons by which the Respondent’s suit was initiated is proper and valid and that the Court below rightly assumed jurisdiction. Counsel relied onAlhaji Hassan Dankwambo V. Jafar Abubakar & Ors (2015) LPELR – 25716 (SC).
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned Counsel for the Appellant reiterated his earlier submissions on the significance of duly signing the initiating process of a suit and submitted that the apex Court had never held a Writ of Summons or Court process not signed by a legal practitioner who purportedly prepared same is valid and contended that in law it is not sufficient for the name of a counsel to be inscribed on a Court process without more and that the Counsel must append his signature, and not even stamping his name would suffice, on the Writ as a form of authentication of the said process as being a process issued by a legal practitioner qualified to practice law in the country and urged the Court to hold that Respondent’s Writ of Summons was not signed and therefore, remained incompetent. Counsel relied on The Executors of the Estate of the Deceased Madam Cathrin Efejuku & Anor V. Mr. Peter James Aziza & Ors. (2013) 11 NWLR(Pt. 1365)307 @ pp. 335 ? 336; Chief Bassey Otu Bassey & Ors V. Etubom Alex Otu Edem & Ors (2016) LPELR – 42054(CA); Chief John Francis Udoeboi & Ors V. Mr. Michael Akpan Udousua (2016) LPELR – 41227(CA); HRH Da Noel Kim V. The Executive Governor of Plateau State & Ors (2016) LPELR – 40793(CA); Buraimoh V. Alejo (2014) LPELR – 23203(CA); D.E.N.R V. Trans International Bank Limited (2008) 18 NWLR (Pt.1119) 399 @ p. 417.
RESOLUTION OF ISSUE ONE
My lords, going by the plethora of decided cases relied upon by Counsel for the parties on this issue, it underscore the fundamental nature of this issue and one raises the almost over flogged issue of the effect of failure of either a party or his counsel to sign the Writ of Summons on the validity of the Writ of Summons so issued. The welter of opinions on this issue as repeatedly pronounced upon by this Court and the Apex Court is that an originating process, such as Writ of Summons, which by law must be signed either by the party or his counsel if not signed before it was issued is incompetent. This principle of law has become trite and so well settled and thus no longer poses any difficulty to the Courts. See Order 5 Rule 1 and Order 6 Rule 2(3) of the Lagos State High Court (Civil Procedure) Rules 2004. See also Joshua Bernard Fumudoh & Anor. V. Dominic Edi Aboro & Anor. (1991) 9 NWLR (Pt. 214) 210 @ p. 229; United Bank for Africa V. Barrister Eyo Nsa Ekpo (2003) 12 NWLR (Pt. 834)1; Mohammed Marl Kida v. A. O. Ogunmola (2006) 6 SC 147 @ pp. 152 – 153.
The issue of signing of an originating process or the issue of complaint of failure to sign a Writ of Summons raises the issue of competence, which is a threshold issue of jurisdiction and once raised even for the first time on appeal either by any of the parties as in the instant appeal, or even by the Court suo motu must be resolved first one way or the other since it does not give the Court any joy seeing the parties and itself belaboring in vain to determine on the merit matters which are incurably defective and hopelessly incompetent beyond redemption. See Petrojessica Enterprises Ltd & Anor V. Leventis Technical Company Ltd (1992) 5 NWLR (Pt 244) 675 @ p. 693.
The law as it stands today, unless and until it is overturned by the apex Court, is that any Court process for that matter, not just originating processes only, not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. Thus, it is no longer only when a Court process is signed in the name of a law firm that it is incompetent, it is also incompetent when it is signed by no verifiable person or not signed at all. See GTB Plc V. Innoson Nigeria Limited (Supra). See also SLB Consortium V. NNPC (2011) 9 NWLR (Pt.1252) 317 @ pp. 336 -337.
To properly consider and resolve issue one I have taken a calm look at the Writ of Summons filed on 9/2/2010 and the endorsements thereon as follows:
“WRIT OF SUMMON: SUIT NO. ID/189/2010; BETWEEN: ESTATE OF LATE CLEMENT OGEH (Represented by 1: Mrs. Esther Ogeh (widow/guardian of Alice Onome OGEH & Favour Eruore OGEH, 2: Pa Ezekiel OGEH ? CLAIMANT AND UNION BANK OFNIGERIA PLC. ‘DEFENDANT. ENDORSEMENTS’. This Writ was issued by ARAMIDE ADEOGUN ESQ. of THE CARRINGTON LAW FIRM whose address for service is 24, CAMPBELL STREET, 6TH FLOOR, AKURO HOUSE c/o J.C. EZIKE & Co. Legal Practitioner of the Claimants who reside at 39, Animashaun Street, Aguda, Surulere, Lagos State.” See pages 1 – 3 of the record of appeal.
Now, on the face of the endorsements and contents of the Writ of Summons filed by the Respondent on 9/2/2010, was the writ of summons duly signed as required by law and thus valid and competent. This issue is based on what can now, in the Nigerian legal jurisprudence, be called the ‘Rule in Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521, predicated on the succinct provisions of Sections 2 (1) and 24 of the Legal Practitioner Act. Cap 207 LFN 1990.’
My Lord at any rate, an unsigned document is a useless document, worthless for all purposes that require authentication for its authenticity: See Mbang V. Guardian Newspapers Ltd & Anor (2010) LPELR ? 4474 (CA) per Oredola JCA held inter alia thus:
“An unsigned document cannot generate or initiate an action” See also Garuba V. Kwara Investment Company (2005) 5 NWLR Pt. 917 Pg. 160, Tsalibawa V. Habiba (1991) 2 NWLR Pt. 174 Pg. 463.
Having looked at the writ of summons, there is on its face the name ‘ARAMIDE ADEOGUN ESQ’ of ‘THE CARRINGTON LAW FIRM’ but there is no signature signed above the name to authentic the authorship by the said name. In law, the signing of the originating process is a sine qua non for its validity and such a process must be signed either by the party or by his counsel in the name clearly and on the roll of Legal Practitioners in the Supreme Court by virtue of Sections 2 and 24 of the Legal Practitioners Act 1976, failing which it would render such an originating process irredeemably and incurably defective and thus incompetent beyond redemption, and not even by any subsequent amendment could such an invalid and void initiating process be salvaged. I am aware that in law there is nothing sacrosanct about what a person signs his signature and therefore, any contraption, any name, mark or writing used with the intention of authenticating a document would amount to a signature. See the definition of signature in Webster’s New Twentieth Century Dictionary of the English Language (Unabridged) 2nd Edition. See also The Black’s Law Dictionary 9th Edition.
In law, mere typing of the name of a person, not writing by hand of the name of the person, on a document, as on the face of the writ of summons in the instant appeal without more would not suffice. In my view, it is not sufficient for the name of a counsel to be inscribed on a Court process without more. The Counsel must append whatever his signature may be and in this vein not even the stamping of his name on the writ of summons would suffice. He must sign his signature even if it means writing his name in his own hand writing above his printed name on the Writ of Summons as a form of authentication of the said process as being a process issued by a legal practitioner qualified to practice law in Nigeria. See The Executors of the Estate of the Deceased Madam Cathrin Efejuku & Anor V. Mr. Peter James Aziza & Ors. (2013) 11 NWLR(Pt. 1365)307 @ pp. 335 – 336.
I am therefore, unable to see any merit in the vehement contentions of Counsel to the Respondents that the writ of summons was signed in the name of the Respondent’s counsel by writing his name ‘Aramide Adeogun Esq.’ on the said Writ of Summons, a name registered on the Roll of Legal Practitioners enrolled to practice law in Nigeria. Now, while the use by writing of one’s name as one’s signature would be sufficient, but there is a world of difference between typing or printing the name of a person on a document and writing, as in using his own hand to write his name on the document above his printed name as would amount to authenticating such a document. The mere printing of the name of the Respondent’s counsel on the writ of summons is therefore, in my finding insufficient as not amounting to a signature, in whatever way the meaning of a signature is considered.
In SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ pp. 331- 332 the apex Court per Onnoghen JSC., (as he then was, now CJN), had with finality restated the law inter alia thus:
“…A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply write his own name over and above the name of his/or firm in which he carries out his practice. It has been argued that noncompliance with the provision of Order 26 Rule 4(3) supra is mere irregularity…as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)..the provision of the Rules of Court involved herein are, by the wordings mandatory not discretionary.”
On his part @ pp. 337 – 338, his lordship Rhodes – Vivour JSC., had with precision put this issue succinctly inter alia thus:
“All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written; Thirdly, who the counsel represent. Fourthly, name and address of legal firm?..Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)”
See also Nigeria Army V. Samuel (2013) 14 NWLR (Pt. 1375) 466 @ p. 483, See also Dickson Ogunseinde Virya Farms Ltd. V. Societe Generale Bank Ltd & Ors (2018) LPELR 43710 (SC) @ pp. 24 – 29; Olagbenro V. Olayiwola (2014) 17 NWLR (Pt. 1436) 313 @ pp. 366 – 367.
Now, it is clear to me and I so find that the writ of summons filed by the Respondent on 9/2/2010, upon which the judgment of the Court below appealed against was based, was not signed and authenticated as decided by the Apex Court in a plethora of its decisions. In law, therefore, an incompetent originating process, such as a writ of summons, cannot form the basis of any valid hearing and or determination of such an incompetent Suit by the Court below on the merit, no matter how zealous the Court may be in its quest to render substantial justice to the parties before it. The initiating process must be competent before any hearing and or decision on the merit on it can validly result in any proceedings before a Court of law. See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. See also Madukolu V. Nkemdilim (1962) 1 All NL 587 @ p. 595; Odejayi & Anor V. Henley Industries Limited (2013) LPELR ? 20368 (CA) @ pp. 27 – 28.
Nowadays, so strict is the ‘Rule in Okafor V. Nweke (Supra) that even where a Court process, including originating process, is signed above the names of two or more counsel for the party affected but without any indication as to who amongst the several names of counsel signed the Court process, such a Court process would be held to be incompetent and thus liable to be struck out. So, in the instant appeal, even though there is a name there is however, no signature of any legal practitioner authenticating the writ of summons or the parties themselves as required by law to render it competent. Thus, it is no longer only when a Court process is signed in the name of a law firm that it is incompetent, it is also incompetent when it is signed by no verifiable person or not signed at all. In GTB Plc V. Innoson Nigeria Limited (2017) 6 NWLR (Pt. 1594) 186, the Apex Court, per Eko JSC., had held inter alia thus:
“A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his…..The process must have the signature or mark of the legal practitioner either against his name, or over and above his name. The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out.”
See SLB Consortium V. NNPC (2011) 9 NWLR (Pt.1252) 317 @ pp. 336 -337.
My lords, the Apex Court has spoken and I have heard and must perforce bow to it that any Court process for that matter not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. In the light of all I have said, found and held above and in the light of the applicable law in the Rule in Okafor V. Nweke (Supra), I hold that the writ of summons filed by the Respondent on 9/2/2010 and not signed by either the Respondent or their Counsel and thus carrying no signature or mark of any verifiable person, is incompetent and thus liable to be struck out as rightly contended by the Appellant under issue one in this appeal. There can be no valid action or matter or cause before the Court below to have been considered on the merit once there is no competent writ of summons, which is indeed the life giving source of competency and validity for an action or suit before the Court to be heard and determined on the merit. It is the spinal cord on which the body of the case of the party lies for its competence and validity. Thus, once the writ of summons is incompetent, an action or matter or cause founded on it is likewise incompetent and liable to be struck out. See Mingi Services Ltd V. lmaote (2003) FWLR (Pt. 143) 341 @ p 346; Mokwe V. Williams (1997) 11 NWLR (Pt.528) 309 @ p. 311; Ekpan V. Uyo (1986) 3 NWLR (Pt.26) 63 @ pp. 598- 599; Muhammed V. Kayode (1997) 11 NWLR (Pt. 530) 584 @ p. 590.
Now, whether the above position of the law would not amount to sacrificing substantial justice at the altar of technical justice raises a real concern but since without competence there can be no validity in any Court proceedings or judgment thereon, the admonition of the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 1, is apt, where the Supreme Court per Niki Tobi JSC., (God bless his soul) had on the issue of substantial justice opined inter alia thus:
“The role of the Court is to apply the principles of substantial justice according to law. The principle cannot be applied outside the law or in contradiction of the law. A Court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process should be evenly spread between the parties. Where a rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and here the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame
My lords, in law once an action or matter or cause is found to be incompetent, that indeed should be the end of the matter, since one cannot put something on nothing and expect it to stand for nullity upon nullity would still amount to nullity and nothing more. SeeMacfoy V. UAC Ltd. (1962) 1 AC 100 @p. 160. See also Babatope & Ors V. Sadiku & Anor ( 2017) LPELR – 41966 (CA) per Georgewill, JCA @ pp. 10 – 14.
In other words, an incompetent suit or action or matter or cause initiated by an incompetent originating process, such as a writ of summons, is not one over which this Court has the jurisdiction to determine on the merit and the proper order to make is one setting aside the judgment of the Court below based on the incompetent writ of summons and striking out the Respondent’s suit for being incompetent. See Musical Copyright Society of Nig Ltd. V. NCC (2016) LPELR – 41009(CA) per Georgewill, JCA @ pp. 29 – 30. See also Umaru V. Yahaya (2015) LPELR – 26043(CA) per Georgewill, JCA @ pp. 15 – 16; Madukolu V. Nkemdilim (Supra) @ p. 581. See also Okarika V. Samuel (2005)7 NWLR (Pt. 924) 365; Shelim V. Gobang (2009) Vol. 173 LRCN 36 @ p. 42.
In the circumstances therefore, issue one is hereby resolved in the positive in favor of the Appellant against the Respondent and having found that the Respondent’s suit was incompetent, this appeal succeed, even at this stage, and ought to be allowed. However, being an intermediate, though penultimate, appellate Court in this Country, enjoined by the Apex Court to consider all issues submitted before it by the parties, I shall proceed to consider and resolve the remaining two issues, namely: issue two and three and bring this judgment to its completeness and a close.
ISSUE TWO
Whether the Court below had the jurisdiction to entertain any proceedings in the Respondent’s Suit when the Respondent is (i) not a proper person, with legal personality, known to law and (ii) lacks the locus, under the Fatal Accidents Act to commence the action?
APPELLANT’S COUNSEL SUBMISSIONS
On issue two learned Counsel for the Appellant had submitted that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Claimant and a competent Defendant and contended that in law only natural persons, that is, human beings or artificial persons such as a body corporate are competent to sue or be sued and urged the Court to hold the Respondent?s suit having been commenced by a non-juristic person, the Court below lacked the jurisdiction to have heard and determined same, which action is liable to be struck out as being incompetent and should be so struck out. Counsel relied on Mozie V. Mbamalu (2006) 15 NWLR (Pt. 1003) 466 @ p. 532; Ataguba & Co. V. Gura Nigeria Limited (2005) 8 NWLR (Pt. 927) 429 @ p. 445; Shitta V. Ligali (1941) 16 NLR 23; Agbonmagbe Bank Ltd. V. General Manager G. B. Ollivant Ltd and Anor. (1961) 1 All NLR 116.
It was further submitted that the Respondent, Estate of Late Clement Ogeh, is not a juristic person known to law and can therefore not sustain an action so as to have invoked the jurisdiction of the Court below and contended that in law the Estate of a deceased person cannot institute an action and urged the Court to hold that ‘Estate of Clement Ogeh’ not being a person known to law is simply a collective term representing the property that one leaves after death, the collective assets and liabilities of a dead person is not a jurisdiction person. Counsel relied on The Administrator/Executors of the Estate of Gen Sani Abacha (Deceased) V. Samuel David Eke – Spiff & Ors (2009) 7 NWLR (Pt. 1139) 97; Carew V. Oguntokun & Ors. (2011) 5 NWLR (Pt 1240) 376 @ p. 402.
It was also submitted that even though ‘an Estate’ lacks legal or juristic personality, the law only allows real humans natural persons to sue in their own personal names on behalf of the Estate whilst describing themselves without fail as Executors of the Estate or Administrators thereof and contended that such a representative actions must be brought on behalf of the Estate of a deceased person by and under the real names of the Executors or Administrators of the Estate and urged the Court to hold that persons to sue and be sued on behalf of an Estate are the Executors, Administrators or Trustees and not the Estate itself as done by the Respondent, Estate of Late Clement Ogeh, and to set aside the judgment of the Court below and strike out the Respondent’s suit for being incompetent. Counsel referred to Order 13 Rule 11 of the Lagos State High Court (Civil Procedure Rules) 2012 and relied on The Administration/ Executors of the Estate of Gen. Sani Abachi (Deceased) V. Samuel David Eke – Spiff & Ors (Supra) @ p. 125.
It was also further submitted that the Respondent having based its claim on the Fatal Accidents Law, Cap F1 of the Laws of Lagos State but failed to abide by the clear stipulation in the said law on the categories of persons who can sue on behalf of the Estate of a deceased and contended that in all of the circumstances anticipated under the said Law, an action under the law must be commenced by and in the name (s) of real person (s) known to law, be they Executors or Administrators or beneficiaries of the estate of the deceased person and not by ‘the Estate’ which (i) is not a legal or juristic person capable of suing or being sued (ii) lacks the statutory locus to institute the action and urged the Court to hold the Respondent, Estate of Late Clement Ogeh cannot and could not therefore have maintained an action before the Court below rendering the suit a nullity and thereby depriving the Court below of its jurisdiction. Counsel referred to Section 3 (2) of the Fatal Accidents Law of Lagos State and relied onThe Administrators/Execution of the Estate of Abacha V. Eke – Spiff (2009) 2 – 3 SC (Pt. II) 93 @ p. 109; Ataguba & Co. V. Gura Nigerian Limited (Supra); Shitta V. Ligali (Supra); Obiuweubi V. Central Bank of Nigeria (2011) 2 NWLR (Pt. 1247) 465; Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
RESPONDENTS’ COUNSEL SUBMISSIONS
Learned Counsel for the Respondent had submitted that the Respondent’s suit is founded on the Administration of Estates by virtue of the untested principles of occupier’s liability under Nigerian law and the creation of an estate by virtue of the provisions of the Fatal Accidents Law CAP F1, Law of Lagos State of Nigeria and contended that in law the ‘general rule’ in respect of the legal capacity to sue on behalf of a deceased person is that where a person intestate but owned tangible assets during his lifetime, the Administration of Estates Laws of Lagos State requires that Letters of Administration be applied for, issued and Administrators/Executors are duly appointed to ‘administer’ the estate and urged the Court to hold that an exception to the ‘general rule’ was created by the Fatal Accidents Law when ‘Administrator’ was defined to include a person appointed according to any system of customary law as representative of a deceased person or his estate. Counsel referred to Section 2 of the Administration of Estate Law of Lagos State; Section 3(2(b of the Fatal Accidents Law; The Webster’s New Twentieth Century Dictionary of the English Language (Unabridged) 2nd Edition @ p. 625 ; The law of Tort by General Editor Andrew Grubb with Specialist Editors 2002, Chapter 7 @ p. 267; It was further submitted that the deceased Clement Ogeh died without any assets whatsoever and thus the Suit was instituted to enable the dependants/immediate family of the deceased to ‘acquire’ their asset in form of damages and/or compensation to be paid to them consequent upon the death of their breadwinner as a result of the negligence of the Appellant and contended that it is the fruit which ought to now form an asset of the estate of the deceased in the con of the Administration of Estates Laws of Lagos State that the Appellant now seeks to destroy by this appeal and urged the Court to hold that from the definition of the word ‘estate’ it is impossible for the Respondent to apply for Letters of Administration where the deceased only left ‘liabilities’ and not any assets behind. Counsel relied on Busari & Ors V. Oseni & Ors (1992) LPELR – 14981 (CA); Chief Atanda & Anor V. Olanrewaju & Ors. (1988) 4 NWLR (Pt. 89) 394; Akporue V. Okei (1973) 12 S.C. 137; Olatunji V. The Registrar, Co-operative Societies, Ibadan (1968) NMLR 393; Atane V. Amu (1974) 10 SC 237.
It was also further submitted that in law representative action is not a matter of strict law which requires strict adherence and compliance and contended that it is rather a rule of convenience originated for convenience and for the sake of convenience and thus its application in cases has been relaxed and urged the Court to hold it is not to be treated as a rigid rule but as a flexible tool in the administration of Justice. Counsel relied on Anatogu V. Attorney-General, East Central State & Ors. (1976) 11 SC 109; Obiode V. Orewere (1982) 1-2 SC 170; John V. Rees (1969) 2 WLR 1294.
It was further submitted that it was in compliance with Order 13 Rule 9 of the Civil Procedure Rules of the High Court of Lagos State that Mrs. Esther Ogeh sought the leave of the Court below to be able to adequately represent the interests of the two minor children of the deceased and herself, being the ‘widow’ of the deceased in line with the definition in Section 2(a) of the Fatal Accidents Law of Lagos State and contended that Respondents have common interest and common grievance and the reliefs are beneficial to them all and urged the Court to hold that the suit was properly constituted and therefore, competent. Counsel referred to the Book: ”What Next In The Law by Lord Denning @ p. 119 – 155 and relied on Soyemi V. Koku & Ors (2016) LPELR – 41926 (CA); Alhaja Barakat Alafia & Ors V. Gbode Ventures Nigeria Limited & Ors (2016) LPELR – 26055 (SC); Nospetco Oil & Gas Ltd V. Olorunnimbe (2012) 10 NWLR (Pt.1307) 115; Durbar Hotel Plc V. ltyough (2011) 9 NWLR (Pt. 1251) 41; Chijuka V. Maduewesi (2011)16 NWLR (Pt.1272)181; Sapo V. Sunmonu (2010) 11 NWLR (Pt.1205) 374; Salisu V. Odumade (2010) 6 NWLR (Pt.1 190) 228 @ p. 241.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned Counsel for the Appellant had submitted that reiterated his earlier submission that in view of the unequivocal provisions of the applicable laws the Court below was wrong to have assumed jurisdiction to hear a suit commenced by ”The Estate of Late Clement Ogeh, which is a non juristic person and thus rendered the suit incompetent and robbed the Court below of its jurisdiction and urged the Court to allow the appeal and set aside the judgment of the Court below delivered without jurisdiction and to strike out the Respondent’s suit for being incompetent. Counsel referred to Section 3(2) (a) & (b); Section 3(3) of the Fatal Accidents Law Cap F1 of the Laws of Lagos State and Order 13 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules 2012.
It was further submitted that the issue of common interest possessed by the beneficiaries of the Estate of the Late Clement Ogeh as contended by the Respondent’s Counsel was irrelevant to the issue of whether the said Estate had the locus standi to institute the action and contended that in law having a common interest to institute an action is separate and distinct from instituting a representative action in the name of a non – legal personality and urged the Court to hold that the issue is not whether the dependants of the Late Clement Ogeh have a common interest to bring a representative action, but whether the ‘Estate of Late Clement Ogeh’ had the locus standi to institute the suit and to allow the appeal, set aside the judgment of the Court below and strike out the Respondent’s incompetent suit.
RESOLUTION OF ISSUE TWO
My lords, the focal point of the issue raised under issue two is the locus standi of the Respondent to competently institute and maintain an action in Court in its own name. In law, the issue of locus standi has become a threshold issue of jurisdiction and can be raised at any stage of the proceedings either by the parties or even suo motu by the Court even if it was not raised before the Court below. Thus, it would not matter when it was raised but once raised it must be resolved one way or the other by the Court. It does not even require any evidence for it be raised or determined, since in law the locus standi of a Claimant is determinable from the totality of the averments in his pleadings and not on the pleadings of the Defendant. It is thus the averments in the statement of claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed the Claimant’s sufficient legal interest and how such interest has arisen in the subject matter of the suit. See Owodunni V. The Registered Trustees CCC (2000) 10 NWLR (Pt. 675) 315. See also Arowolo V. Akapo (2003) 8 NWLR (Pt. 823) 451; UBA Plc. V. BTL Ind. Ltd (2004) 18 NWLR (Pt. 904) 180; Ladejobi V. Oguntayo (2004) 18 NWLR (Pt. 904)149; B.M. Ltd V. Woermann (2009) 13 NWLR (Pt. 1157) 149; Attorney-General, Enugu State V. Omaba (1998) 1 NWLR (Pt. 532) 83; Brawal Shipping (Nig.) Ltd V. Onwadike (2000) 11 NWLR (Pt. 678) 387; SPDCN Ltd V. John (2011) 2 NWLR (Pt. 1231) 236.
In law, locus standi denotes the legal right of a party to an action to be heard in litigation before a Court of law and thus where a Claimant has no locus standi to bring an action, the action initiated by him becomes incompetent and liable to be struck out since the Court would lack the jurisdiction to entertain it. See Guda V. Kitta (1999) 12 NWLR (Pt. 629) 21. See also Okafor V. Asoh (1999) 3 NWLR (Pt. 593) 82; Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423; Akinnubi V. Akinnubi (1997) 2 NWLR (Pt. 486) 144; Ejikeme V. Amaechi (1998) 3 NWLR (Pt. 542) 456; Waziri V. Danboyi (1999) 4 NWLR (Pt. 598) 239; Ayoola V. Baruwa (1999) 11 NWLR) (Pt. 628) 595.
In Daniyan V. Iyagin (2002) 7 NWLR (Pt. 766) 346, the Court held inter alia that:
”The plaintiff has the onus to establish his locus standi, for he has to show that he has sufficient interest in the matter.”
Now, to resolve issue two, the only relevant document is the writ of summons and the statement of claim of the Respondent, since in law it is the averments therein that would determine if the Respondent has the requisite locus standi or not.
The grouse of the Appellant under this issue is that the Respondent is a non juristic person and therefore, cannot in law institute and maintain an action in its own name, having not sued either as the personal representative of the deceased or as the legal administrators and Executors of the estate of the deceased but in a capacity not known to law.
In the Statement of Claim, the parties on record are as follows:
1. The Estate of Late Clement Ogeh (represented by Mrs. Esther Ogeh (Widow/Guardian of Alice Onome Ogeh and Favor Eruore Ogeh (children of the late Mr. Clement Ogeh)
2. Mrs. Esther Ogeh
3. Pa Ezekiel Ogeh
AND
Union Bank of Nigeria Plc
It was then averred inter alia as follows:
1. The 1st Claimant is the Estate of late Mr. Clement Ogeh
2. The 2nd Claimant is the wife and guardian of Alice Onome Ogeh and Favor Eruore Ogeh (children of the late Mr. Clement Ogeh)?.
3. The 3rd Claimant is the biological father of late Mr. Clement Ogeh
See page 4 of the record of appeal.
I have taken a calm look at the parties on the record and it does appear that even in the judgment, the subject matter of this appeal, there are two clearly distinct Claimants, namely: 1. Estate of Clement Ogeh and 2. Mrs. Esther Ogeh (Wife/Guardian of Alice Onome Ogeh & Favor Eruore Ogeh). However, curiously and for no reason shown, the notice of appeal does not have the name of the 2nd Claimant as clearly shown in the judgment appealed against by the Appellant but now rather has only the name of the 1st Claimant, Estate of Clement Ogeh as the only Respondent in this appeal, which has now formed the very basis of the contentions on locus standi under issue two. While the proprietary or otherwise of the exclusion of the name of the 2nd Claimant in this appeal is not an issue, yet this Court being a Court of record cannot close its eyes to such distortion in deciding the real justice of this case under issue two. See page 359 of the record of appeal.
Now, from the averments in paragraphs 1, 2, and 3 of the Statement of Claim, not even denied by the Appellant, the 2nd Claimant on record was the wife and now widow of the deceased while the other named persons on whose behalf the suit was instituted are the infant children of the deceased for which leave of the Court below was sought and obtained by the 2nd Claimant to sue as their guardian ad litem. Initially, the mother and father of the deceased were also made parties on record before the demise of the mother and the subsequent striking out of her name from the parties on record. These persons are thus part of the customary beneficiaries of the estate of the deceased.
However, save for the 2nd Claimant, on record as in the judgment, Mrs. Esther Ogeh who sued in her own name, the Respondent, being the 1st Claimant on record, had not sued as the ‘personal representative of the deceased’ in the absence of any letters of administration issued in respect of the estate of the deceased but rather had sued as ‘Estate of Clement Ogeh’ and the question is whether the writ of summons initiated in these names is competent in law to be heard and determined on the merit as did the Court below. It is this rather very straight forward question arising from issue two that the Counsel for the parties had each inundated this Court in their briefs with lengthy submissions and plethora of decided cases, most of which, with due deference to them, were not apposite to the real issue under consideration.
The 2nd Claimant is the widow of the deceased and she sued in her own name as representing the infant children of the deceased with the leave of the Court below or at least that is what she said and there is no other person before the Court below challenging these averments as to her capacity, not even the Appellant did so.
So in her avowed capacity as widow under customary law does she need any letters of administration to be clothed with the requisite locus standi to institute the suit against the Appellant? I do not think so. In my view, and I so hold, the 2nd Claimant on record, whose name had been excised by the Appellant in this appeal vide the notice of appeal at page 433 of the record of appeal, has by her averments duly discharged the legal requirement of locus standi, being the widow of the deceased, who she claim was the victim of the robbery incident in the banking hall of the Appellant at its Oshodi Branch and which led to his sudden and untimely death intestate on that fateful day of 1/3/2007 and for which she claims, whether rightly or wrongly, compensation for his death from the Appellant in whose premises he was shot and killed by the armed robbers.
My lords, in law the family members of a deceased, including his wife and or children are clothed with the requisite locus standi to sue to protect the properties or estate left behind by their deceased father. At least in Lagos State, all the properties of any person who died intestate belong exclusively to his children and or assigns. See Administration of Estates Law of Lagos State Cap.2, 1973. See also Amodu v Obayomi (1992) 5 NWLR (Pt. 242)1; Ugwunze V. Adeleke (2008) 2 NWLR (Pt.1070); (2007) LPELR – 8101 (CA); Disu V. Ajilowura (2006) 14 NWLR (Pt. 1000) 783 @ p. 787; Ugwu V. Agbo (1977) 10 SC p.27; Olowosago V. Adebanjo 1988 4 NWLR (Pt.88) 275; Ejiwunmi V. Costain (WA) Plc (1998) 12 NWLR (Pt. 576) 149; Williams V. Dawodu (1988) 4 NWLR (Pt. 87)189; AG Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8)483.
However, in relation to the 1st Claimant on record, who is the only Respondent in the notice of appeal, contrary to the names of the parties in the judgment being appealed against by the Appellant at page 359 of the record of appeal, it would appear that the name ?Estate of Clement Ogeh? is in law not a juristic person as vehemently and rightly contended by the Appellant under issue two in this appeal. This is so because, once a party commences an action in a name not known to law and thus lacking either legal personality or is non juristic, such an action would be incompetent if such a party was the only Claimant on record. Thus, the permissible ways to commence an action on behalf of the estate of a deceased person would depend on whether the deceased died intestate or testate. Where the deceased died testate then such an action can only be commenced by the Administrators/Executors of the Estate with the requisite letters of administration.
However, where the deceased died intestate, then an action can be commenced by his personal representatives in their own names. It follows therefore, that an action commenced in the name of the ‘Estate of Late Clement Ogeh’ as in the 1st Claimant on record in this suit, if it was the only Claimant on record, of which it is not in the instant case, over the intestate estate of the deceased is one not commenced competently as required by law since the ‘Estate of late Mr. Clemnet Ogeh’ is in law clearly not a juristic personality which can sue and be sued in its own name. See The Administrators/Executors of the Estate of Late General Abacha V. Eke – Spiff & Ors (Supra) @ p. 109 relied upon by the Appellants which would avail the Appellant to the extent of the incapacity of 1st Claimant on record only but having no adverse legal effect on the 2nd Claimant on record who is a natural person with the requisite legal capacity and locus standi and thus competent to institute the action against the Appellant over the tragic death intestate of her husband.
The decision in See The Administrators/Executors of the Estate of Late General Abacha v. Eke- Spliff & Ors (Supra) relied upon heavily by the Appellant is thus of no avail to the Appellant in respect of the 2nd Claimant, the widow of the deceased in the circumstances of this appeal, who can competently sue for compensation for the alleged negligent and wrongful death of the deceased. I therefore, find the decision in Disu V. Ajilowura (Supra) very apt in relation to the 2nd Claimant on record, Mrs. Esther Ogeh, the wife and now widow of the deceased Late Mr. Clement Ogeh, in the circumstances of the instant appeal.
In Disu V. Ajilowura (Supra) that case, the Supreme Court had @ p. 787 emphatically pronounced inter alia thus:
”The plaintiff must in the statement of claim disclose sufficient interest or threat of injury to enable him to invoke the judicial process. In the instant case, the plaintiff asserted that she was a great grandchild of the original owner of the property, late Disu Dada. She asserted that on his death, late Disu Dada was survived by three children amongst them Tawakalitu Ajiun, her grandmother. The totality of the assertions in the statement of claim showed that she had an interest in the properties in dispute. Thus she had the necessary lacus standi to sue.”
Furthermore, by virtue of Section 3(2) and (3) of the Fatal Accident Law of Lagos State, one of the relevant applicable legislation to this appeal, it is provided as follows:
3(2) Every action, under this section, shall be for the benefit of the members of the immediate family of the deceased person and shall:
(a) if the deceased person was not subject to a system of customary law, be brought by and in the name of the executor or administrator of the deceased person OR
(b) if the deceased person was immediately before his death subject to a system of customary law relating to estate, be brought at the option of his immediate family, by and in the name of such person as the Court is satisfied is under the customary law, entitled or empowered to represent the deceased person or his estate.
3(3): If there is no executor or administrator, or where there is an executor or administrator but no action is brought by the executor or administrator within six months after the death of the deceased person, then action may be brought by and in the names of all or any of the persons for whose benefit the action would have been, if it had been brought by the executor or administrator; and every action brought shall be for the benefit of the same persons and be subject to the same regulations and procedure, as nearly as may be, as if it had been brought by an executor or administrator.?
Now, by Section 2 of the Fatal Accidents Law of Lagos State, it is provided inter alia as follows:
‘Administrator’ includes a person appointed according to any system of customary law as representative of a deceased person or his estate.
‘Child’ means a son or daughter and includes a grandson or granddaughter, and stepson or stepdaughter, of a deceased person and includes a child adopted before or after the coming into operation of this Law under any law as to adoption recognized in Nigeria.
‘Deceased person’ means a person in respect of whom under this Law a cause of action survives his death subsisting against or vested in him shall survive against, or as the case may be, for the benefit of his estate’
‘Immediate Family’ (a) in relation to a deceased person not subject to a system of customary law, includes (i) the widow or widows, as the case may be (ii) the widower (iii) any parent; and (iv) any child (b) in relation to a deceased person who was subject to a system of customary law not being Muslim Law, means in addition to any of the persons specified in paragraph (a) of this definition, surviving brothers and sisters of a deceased person, which expression includes stepbrothers and stepsisters.
My lords, in whatever way the above provisions of the law is construed, it is clear that while the 1st Claimant, ‘Estate of Mr. Ogeh’ does not come within the categories of person who can competently institute and maintain this action against the Appellant, the 2nd Claimant, Mrs. Esther Ogeh, is clothed with the competence and locus standi to institute and maintain this action against the Appellant on behalf of herself and the infant children of the deceased, who all have a common interest and a common grievance and with relief beneficial to all of them as represented, and for which she sought and obtained the leave of the Court below to sue as their guardian ad litem. Now, whether the claims of the 2nd Claimant on record would succeed or not is not an issue for consideration under issue two dealing exclusively with the competence and locus standi of the Claimants. See pages 97 – 107 of the record of appeal. See also Order 13 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004.
In Busari & Ors V. Oseni & Ors (1992) LPELR – 14981 (CA), this Court per Niki Tobi JCA (as he then was but later JSC) held inter alia thus:
”One very serious point of contest is in respect of commencing the action in a representative capacity without obtaining the leave of Court. The fundamental principles governing suits or actions brought in a representative capacity are: (i) those represented have a common interest and a common grievance and (ii) that the relief sought must in its nature be beneficial to all those whom the Plaintiff is representing. Representative action is not a matter of strict law which requires strict adherence and compliance. It is a rule of convenience. It was a rule that was originated for convenience and for the sake of convenience, its application in cases has been relaxed. It is therefore not to be treated as a rigid rule but as a flexible tool in the administration of Justice…”
See also Chief Atanda and Anor v. Olarewaju and Ors (1988) 4 NWLR (Pt. 89) 394; Akporue V. Okei (1973) 12 S.C. 137; Olatunji V. The Registrar, Co – Operative Societies, Ibadan (1968) NMLR 393; Atane V. Amu (1974) 10 S.C. 237; Anatogu V. Attorney – General. East Central State and Ors (1976) 11 SC 109; Obiode V. Orewere (1982) 1- 2 SC 170; John V. Rees (1969) 2 WLR 1294; Soyemi V. Koku & Ors (2016) LPELR – 41926 (CA); Alhaja Barakat Alafia & Ors V. Gbode Ventures Nigeria Limited & Ors (2016) LPELR – 26055 (SC); Nospetco Oil & Gas Ltd V. Olorunnimbe (2012) 10 NWLR(Pt.1307)115; Durbar Hotel Plc V. ltyough (2011) 9 NWLR (Pt. 1251) 41; Chijuka V. Maduewesi (2011) 16 NWLR (Pt.1272)181; Sapo V. Sunmonu (2010) 11 NWLR (Pt.1205) 374; Salisu V. Odumade (2010) 6 NWLR (Pt.1 190) 228 @ p. 241.
In the light of my findings above, issue two is hereby resolved partly against the Respondent in favor of the Appellant in respect of the 1st Claimant on record, ‘Estate of Mr. Clement Ogeh’, which is a non juristic personality and not known to law. Consequently, the name of the 1st Claimant on record is hereby struck out. However, in respect of Mrs. Esther Ogeh, the 2nd Claimant on record at pages 4 and 359 of the record of appeal, issue two is partly resolved against the Appellant. The Respondent’s Suit, with the name of the 1st Claimant already struck out by the named 2nd Claimant retained in this judgment, is competent to be heard and determined on the merit as was done by the Court below.
ISSUE THREE
Whether the totality of the evidence before the Court below supported a finding of negligence against the Appellant?
APPELLANT’S COUNSEL SUBMISSIONS
On issue three learned Counsel for the Appellant had submitted that it is the duty of Court to properly evaluate and appraise all evidence placed before it before reaching its conclusion and contended that the Court below failed to properly evaluate the evidence before it in arriving at its decision and urged the Court to hold that the failure to do so had led the Court below to impose liabilities for alleged negligence on the Appellant that the Appellant cannot in law be liable for and thereby occasioned a miscarriage of justice. Counsel relied on Salako V. Dosunmu (1997) 8 NWLR (Pt. 517) 371 @ p. 394.
It was further submitted that in law negligence can only be established if it is shown that the Defendant owes a legal duty of care to the Claimant, that the Defendant had breached the duty of care and that damage or injury had resulted from the breach and contended that the issue before the Court below was whether the Appellant, as an occupier, was in breach of any duty of care to the deceased person and urged the Court to hold that the Respondent failed to prove any act of negligence and to allow the appeal and set aside the judgment of the Court below and dismiss the claims of the Respondent for lacking in merit. Counsel relied on U.T.B. V. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 @ p. 469;
It was also submitted that the Court below failed to evaluate and ascribe probative value to the pieces of uncontroverted evidence of the incident of 1/3/2007 as placed before it by the Appellant but rather held contrary to the proved evidence that the Appellant was negligent for allegedly failing to take precautions for the safety of its customers even without any evidence in proof thereof and contended that the entire findings in the judgment of the Court below were founded solely on speculations, sentiments, presumptions, irrelevant evidence and unproved and abandoned assertions/averments and urged the Court to set aside all such perverse findings and to allow the appeal and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Oguejiofor V. Siemens Ltd. (2007) LPELR – 8401(CA); Adekunle V. Adegboye (1992) 2 NWLR (Pt. 223) 305 @ p. 318; Chukwujekwu V. Olalere & Anor. (1992) 2 NWLR (Pt. 221) 86 @ p. 93; The Administrators/Executors of the Estate of Gen Sani Abacha (Deceased) V. Samuel David Eke – Spiff & Ors (Supra) @ p. 141; Abubakar & Anor V. Joseph & Anor (2008) 13 NWLR (Pt. 1104) 307 @ p. 343; U.B.N. Ltd V. Attorney – General of Rivers State (2008) 6 NWLR (Pt. 1084) 612 @ p. 653; The State V. Collins Ojo Aibangbee (2008) 8 NWLR (Pt.1037) 517; Adamu & Anor V. Commissioner of Police, Plateau State (2008) 8 NWLR (Pt. 1089) 298 @ pp. 331 – 332.
It was also further submitted that the Court below by jettisoning the evidence led before it to foray into the realm of speculations, presumptions and sentiments fell into grave error occasioning a miscarriage of justice and contended that this was made worst by the ignoring of the evidence of two of the security men engaged by the Appellant who also paid the ultimate price with their lives whilst trying to secure the safety of the Appellant’s customers and urged the Court to hold that the tort of negligence being a question of facts, a finding of breach of a legal duty of care must be premised on what a reasonable person in the shoes of the Appellant ought to do having regards to all the circumstances prevailing at the time of the alleged breach and what may be reasonably foreseen to flow from such act or omission and not to base such decision on mere baseless speculations, sentiments and presumptions and allow the appeal, set aside the judgment of the Court below and dismiss the claims of the Respondent for lacking in merit. Counsel relied on U.T.B. V. Ozoemena (Supra); Wema Bank Ltd V. BBC Brown Boveri (Nig.) Ltd (1996) 6 NWLR (Pt.454) 364 @ p. 381.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, whether the Court below properly evaluated the evidence and rightly found that the Appellant was negligent when it breached its duty of care to the deceased Clement Ogeh, learned Counsel for the Respondent had submitted that the Court below properly evaluated the evidence before it and rightly came to the conclusion and finding that the Appellant was negligent in its duty of care which it owed to the deceased Clement Ogeh and contended that in law a party claiming negligence must show that there exists a duty of care from the Defendant and that the Defendant breached the duty of care and that the breach led to the damages or injury or the death of the deceased and urged the Court to hold that the Respondent had by credible and unchallenged evidence, rightly believed by the Court below, established all the essential ingredients of negligence against the Appellant and to affirm the judgment of the Court below.
Counsel relied on Diamond Bank Ltd V. Partnership Investment Co. Ltd & Anor (2009) LPELR – 939 (SC); Alhaji Kalia V. Jarmakani Transport Ltd (1961) ANLR 778 @ p. 785; Baker V. Longburst (E) & Sons Ltd (1933)2 KB 461; Tart V. Chitty (G W) &Co Ltd (1933) 2 KB 465; Universal Trust Bank of Nigeria V. Fidelia Ozoemena (2007) LPELR 3414 (SC); Muomah V. Enterprise Bank Ltd (2015) LPELR 24832 (CA); Ogunyade V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218; Nzeribe V. Dave Eng. Co. Ltd (1994) 8 NWLR 124; Ebeinwe V. The State (2011) 7 WLR 402; Okike V. LPDC (2005) 15 NWLR (Pt. 949) 471; Al – Rissalah Printing & Publishing Co. Ltd. & Ors. V. Houssein & Ors. (2007) LPELR – 8543 (CA).
It was further submitted that on the proved evidence it was shown that the armed robbery attack that occurred on the 1/3/2007 was a foreseeable incident and the Appellant could have prevented same if the metal detecting doors had been installed since they would have had a hard time coming through the metal door into the Banking Hall of the Appellant’s Oshodi Branch and contended that in law exclusion of Occupiers Liability clause by the owner of a premises in relation to its liability or otherwise at its car parking space is not different from other excluding and limiting terms in a contract and therefore, applies only to incidents within the outer premises and not within its inner premises such as the banking hall and urged the Court to so hold.
It was also submitted that even though the act complained of by the Respondent was caused by a third party, the armed robbers, nonetheless the Appellant is liable for the breach of the duty of care it owed the Respondent and other visitors and customers of its bank at least to ensure their security, if not outside the banking premises, but inside its banking halls and contended that the Appellant failed to deny the averments of the Respondent as to the lack of proper security measure which ought to have been put in place by the Appellant and urged the Court to hold that the Appellant having not denied the Respondent’s averments was deemed to have admitted them and to affirm the finding of negligence against the Appellant by the Court below. Counsel referred to Section 123 of the Evidence Act 2011; the Book: Premises Security by Williams F. Blake and Walter F. Bradley Esq., @ pp. 8 – 9 and relied on China Geo Engineering Company V. Nambativ (2000) LPELR – 6807 (CA); Order 15 Rule 5 (1) of the High Court of Lagos State (Civil Procedure) Rules 2012 and relied onYusuf V. Oyetunde (1998) 12 NWLR (Pt. 579) 483 SC; Maobison Inter – Link Associated Limited V. UTC Nigeria Plc. (2013) LPELR – 20335 (SC);
It was also further submitted that on the pleadings and evidence led, the Court below rightly took judicial notice of the notoriety of Oshodi in Lagos State, which is a fact of common knowledge and needs not be proved and contended that the Court below was therefore right finding the Appellant liable in negligence based on the notorious facts about the location of the bank premises at Oshodi, Lagos State and urged the Court to affirm the finding of the Court below and to dismiss the appeal. Counsel referred to Section 124 of the Evidence Act (2011 and the Book: Contemporary Law of Evidence in Nigeria Vol. 11., by Jerry Amadi Esq., @ pp. 1306 – 1307.
It was also submitted that the Court below never acted on any speculations or sentiments or presumptions but acted on the proved unchallenged evidence before it in arriving at the correct finding of facts that the Appellant was negligent having breached its duty of care towards the deceased, its customer transacting business in the normal course of business within its banking hall and contended that the only speculation was the one raised by the Appellant’s Counsel that even if there was a metal detecting door, the incident would still have occurred since no such evidence was led by the Appellant before the Court below and urged the Court to discountenance such speculation and to affirm the findings of negligence against the Appellant by the Court below and dismiss the appeal for lacking in merit.
The learned Counsel for the Respondent proceeded to raise the question whether or not the statement on oath of the sole witness of the Appellant, DW1, one Mrs. Abike Oluwagbemiro Aremu was competent and submitted that the said statement on oath having not been sworn to before the Commissioner of Oath as required by law was incompetent and liable to be struck out and urged the Court to so hold and to expunge all the evidence of the DW1 founded on the incompetent statement on oath of the DW1 and thus leaving the Appellant’s case unsupported by any evidence. Counsel referred to Order 3 Rule 2(1)(c) of the High Court of Lagos State (Civil Procedure) Rules 2012; Section 109 of the Evidence Act (2011) and relied onIshaq & Anor V. INEC & Ors (2008) LPELR – 4336 (CA); Maraya Plastic Ltd V. Inland Bank PLC (2002) NWLR (Pt 109) 120; Brossette Manufacturing Nig. Ltd V. M/S Ola Ilemobola Limited & Ors (2007) LPELR -809 (SC); Kalio V Woluchem (1985) 1 NWLR (Part 4) 610 @ 628; Okagbue V. Romaine (1982) 5 SC 133; Olaniyan V. Oyewole (2010) LPELR – 9109 (CA).
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In reply, learned Counsel for the Appellant had reiterated his earlier submissions on the failure of the Respondent to prove any act of negligence against the Appellant in the death of the deceased and to failure of the Court below to properly evaluate the evidence and arrive at proper findings and submitted that there was unchallenged evidence through DW1 that the use of metal detecting door was just being introduced into banking hall in March 2007 when the armed robbery incident took place but that the supplier of the said door had not supplied the Appellant?s Oshodi Branch and contended that in law the onus of proof was on the Respondent, who would fail if no evidence is led, to prove its allegation of negligence against the Appellant and urged the Court to hold that on the totality of the evidence led, the Respondent failed to discharge this burden on it and the claim ought to have been dismissed by the Court below. Counsel relied on Mechanic V. Onisesin (1998) 2 NWLR (Pt. 538) 446 @ p. 453; Barr Uzoamaka Lawrencia Onyeama V. Barr. Ike Ekweremadu & Ors (2009) LPELR – 4792 (CA); Gaji V. Paye (2003) 8 NWLR (Pt.823)583; M. W. T. (Nig.) Ltd. V. PTF (2007) 15 NWLR (Pt. 1058) 480; Dagash V. Bulama (2004)14 NWLR(Pt. 892)144 @ p. 240.
It was further submitted that even if the Appellant ought to have foreseen the robbery incident of 1/3/2007 by reason of alleged previous robbery incidents in the bank as argued by the Respondent, in so far as the Appellant did everything a reasonable man would have done to prevent future robbery incidents, the Appellant ought not to have been held liable for the death of the deceased by the Court below and contended that had the Court below properly evaluated and considered the undisputed evidence before it with regards to the adequate security measures put in place by the Appellant, it would have found that the Appellant passed the ”reasonable man test” and was thus not in any way negligent in the incident leading to the death of the Deceased and urged the Court to so hold and to set aside the finding of negligence against the Appellant by the Court below. Counsel relied on Unilorin Teaching Hospital V. Abegunde (2013) LPELR-21375(CA); Hawkins V. Coulsdon & Purley U.D.C (1954)1 QB 319; A.C Billings & Sons Limited V. Riden (1958) AC 240.
It was also submitted that the Court below was in error when it took judicial notice of the alleged notoriety of Oshodi area of Lagos without giving the Appellant the opportunity to address it on that issue as required by law and contended that the notoriety of Oshodi is a fact that is reasonably open to question and thus need to be proved by the Respondent and urged the Court to hold that this fact was not proved and the Court below did not also disclose how it acquired the knowledge of the fact that Oshodi is an area highly infested by hoodlums and a black spot and to set aside this perverse finding of the Court below. Counsel referred to Section 124 (3) of the Evidence Act 2011
On whether or not the Statement on oath of DW1 was valid, it was submitted that the issue of the validity of the Statement on Oath of DW1 was not raised or argued before the Court below and contended that in law an appellate Court will not entertain any issue not considered or determined by the lower Court and urged the Court to hold that this issue having not been raised before the Court below cannot be raised in this appeal without the leave of this Court first sought and obtained by the Respondent and to discountenance the incompetent issue raised belatedly by the Respondent in this appeal. Counsel relied on Senator lylola Omisore & Anor V. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR – 24803(SC); Ifekwe V. Madu (2000) 14 NWLR (Pt.688) 459; Niger Progress Ltd V. North East line Corporation (1989) 3 NWLR (Pt. 107) 68 @ p. 100; Lamboyo Ltd. V. New Nigeria Bank Plc.(Supra); Okito V. Obioru (2007) All FWLR (Pt. 365) 585 @ p. 592; Ibrahim V. Lawal (2015) LPELR – 24736 (SC); Salisu & Anor V. Mobolaji & Anor (2013) LPELR – 22019 (SC); S.T.B Plc. V. Olusola (2008) WRN (Vol. 4) 82@ pp. 86 ? 87; Onwukwe V. Ekejiuba (2017) LPELR – 4241 7(CA).
It was further submitted that, in unlikely event that this Court holds that the Respondent can raise the issue of the validity of the Appellant’s Witness statement on Oath for the first time in this appeal, the Appellant’s Witness Statement of Oath is valid in that the DW1 had stated under cross – examination that she brought the Witness Statement on Oath to the High Court for some signing, to which the Respondent had acquiesced and waived and urged the Court to hold that the only signing the DW1 could have done is the signing of her Statement on oath and to discountenance the issue of the validity of the statement on oath of the DW1. Counsel relied on Saude v. Abdullahi (1989) NWLR (Pt.116) 387; Engr. Abraham Adebisi Gbadamosi V. Nigerian Railway Corporation (2006) LPELR – 11668(CA); MTN Nigeria Ltd. V. Aluko & Anor (2013) LPELR -20473(CA).
RESOLUTION OF ISSUE THREE
My lords, a consideration of issue three would invariably involve a review of the evaluation carried out by the Court below and the findings and conclusion reached thereon to see if the evaluation was proper and the findings and conclusions correct or wrong. Thus, the crux of issue two is whether the Appellant was negligent in the incident of 1/3/2007 leading to the shooting death of the deceased in the Appellant’s Banking Hall at its Oshodi Branch by armed robbers who had struck on that fateful day.
The law on negligence appears to be fairly well settled. Generally, once a Claimant pleads and leads evidence which creditably and cogently establishes a duty of care owed him by the Defendant, the breach of that duty by the Defendant and the resultant damages he is entitled to his claim for damages for negligence. The converse is thus the case that once a Claimant fails to establish by credible evidence all or any of these key three ingredients of the tort of negligence, such a claim must fail and ought to be dismissed. The Plaintiff must prove that the injury caused him was as a result of the negligence of the Defendant, nothing else or less would be sufficient. See B. J. Ngilari V. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. See also Oyidiobu V. Okechukwu (1972) 5 SC 191; Orhue V. NEPA (1998) 7 NWLR (Pt. 557) 187; R. V. Tatimu (1952) 20 WLR 60.
In law, therefore the proof of the existence of a duty of care, its breach and resultant damages is a sine qua non for a successful claim in negligence. In all cases in which damages is being claimed for negligence it may be well for trial Courts to bear it in mind that negligence is a matter of or question of fact and not law and thus a finding as of fact of the act of omission or commission of the Defendant must first be made before damages could be assessed. See M. O. Kanu & Sons Ltd Co. Ltd V. First Bank of Nigeria Plc (2006) LPELR 1797 (SC). See alsoAgbonmagbe Bank Ltd V. CFAO (1966) 1 All NLR 490; Diamond Bank Ltd V. Partnership Investment Co Ltd & Anor (2009) 18 NWLR (Pt. 1172) 67; Alhaji Kalla V. Jarmakani Transport Ltd (1961) All NLR 778); Alhaji Abubakar & Anor V. Joseph & Anor (2008 13 NWLR (Pt. 1104) 307.
In order to establish negligence against a Defendant, one pertinent question arises for consideration and that is whether as between the alleged wrong doer and the person who has suffered damage, there is sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the of the former, carelessness on his part may be likely to cause damage to the latter? It is firmly established that a party who alleges negligence should not only plead the act or acts of negligence but should also give specific particulars and thus it is not open to the Court to find reasons other than those pleaded to find for the Plaintiff in the tort of negligence. The particulars of the alleged negligence must be pleaded in sufficient detail and must be supported by credible evidence at the trial. See A G Leventis Nig Plc V. Chief Christian Akpu (2007) 6 SC (Pt. 1) 239 or (2007) 17 NWLR (Pt. 1063) 416. See also Aku Nmecha Transport Services Nig. Ltd & Anor V. Atoloye (1993) 6 NWLR (Pt. 298) 233 @ p. 248; UBN Plc V. Emole (2001) 12 SC (Pt. 1) 106; Aermarchii V. AIC Ltd (1986) NWLR (Pt. 443) 449; Rabiu Hamza V. Peter Kure (2010) 10 NWLR (Pt. 1203) @ 630.
My Lords, before a trial Court can arrive at a finding of liability for damages for negligence, it is the basic requirement of the law that the Defendant must be shown to owe a duty of care to the Plaintiff and therefore where there is no such national duty to exercise, negligence will have no legs to stand and any claim premised thereon will fail. In Alumininum Manufacturing Co. of Nig. Ltd V. Volkswagen of Nigeria Ltd (2010) LPELR 3759 (CA), Nwodo JCA (God bless her soul), discussed in details the requirements for a successful claim in damages for negligence thus:
“The onus of proving negligence is on the Plaintiff who alleges it. Where Plaintiff pleaded and relies on negligence by conduct or action of the Defendant he or she must prove by evidence the conduct or action and the circumstances of its occurrence giving rise to the breach of the duty of care. Once Plaintiff has discharged the onus on him the burden shifts on the Defendant to adduce evidence in challenge. The basic requirement is that the Plaintiff must plead all the particulars in sufficient detail of the negligence alleged and the duty of care owed by the Defendant must be established by evidence. The constituent of negligence is a question of fact not law. Consequently each case is decided in the light of its own peculiar facts.”
See also Koya V. UBA Ltd (1997) 1 NWLR (Pt. 481) 251; Universal Trust Bank of Nigeria v. E Fedelia Ozoemena (2007) 3 NWLR (Pt. 1022) 448.
In sum therefore, in a claim for damages for negligence, the Claimant must plead and prove the following three main ingredients of the tort of negligence, namely; (1) The Defendant owed the Plaintiff a duty to exercise due care; (2) That the Defendant failed to exercise due care or had breached the duty of care; (3) The Defendants failure was the cause of the injury suffered by the Plaintiff. See Olam (Nigeria) Ltd V. Intercontinental Bank Ltd (2009) LPELR 8275 (CA). See also Koya V. UBA Ltd (1997) 1 NWLR (Pt. 481) 41; Osigwe V. Unipetrol Ltd (2005) 5 NWLR (Pt. 918) 261; Tom Total Nig Ltd V. Skye Bank Plc (2017) LPELR – 41953(CA); MTN Ltd. V. Mundra Ventures Nig Ltd (2016) LPELR-40343(CA).
Now, what are the pieces of evidence led by the parties before the Court below from which it arrived at its finding of negligence against the Appellant in its judgment?
The CW1, Mrs. Esther Ogeh, the 2nd Claimant, testified inter alia that in the early hours of 1/3/2007, her mother in law visited her husband and requested for some money from him and consequently he went to the bank around 12pm to withdraw the amount. However, he did not return home from the bank for an extensive period, and she began to call his telephone numbers but he did not pick her call. After not heard from him for a while, she called his parents who also had no knowledge of his whereabouts. At around 10pm her mother in law arrived at their residence to inform her that the bank he went to was robbed and he was injured during the attack and had been rushed to the Isolo General Hospital. On the following morning, being 2/3/2007 she learnt that her husband had passed away as a result of injuries sustained from the gunshot wounds he received during the bank robbery. He was just thirty-four years old at the time of his death. The Appellant later offered the family the sum of N500, 000.00 as compensation for the loss of the deceased, which offer she rejected. Under cross examination, she could not remember asking for a report on how he was shot.
CW2 was one Mrs. ljeoma Okwuosa, testified on subpoena and testified as to the professional training and career attainments of the deceased at the time of his death on 1/3/2007. CW3 was one Mr. Oladele Sunday Oyekunle, who testified as to the likely financial entitlements of the deceased, including his gratuities and pension, had his life not been cut short in his prime and he had lived to retirement from his work.
CW4 was one Mr. Josiah Onomare Ogeh, the brother to the deceased. He testified on subpoena and stated inter alia that he became aware of his brother’s death on 2/3/2007 when his Sister called to inform him that their brother was shot dead in the banking hall of the Oshodi branch of Union Bank. He stated that on hearing about his brother’s death, he went to Ikeja General Hospital to view the body and was given the certificate of death to enable him carry the corpse from the hospital. However, the Appellant never sent any condolence message or representation to the family of the deceased before, during and after his burial. It took the family’s efforts, in writing a letter to the Bank, to commence communication with the Appellant. He stated that the Bank’s security measures were lacking as per the directives of the CBN that all banks should have electronic mental detector security doors, which the Appellant? Oshodi Branch failed to adhere to.
His cross examination was directed at only if he attended his late brother’s wedding, to which he responded that he only attended his late brother’s traditional marriage with the CW1.
In its defense, the Appellant called a sole witness DW1, one Mrs. Abike Oluwagbemiro, an employee of the Appellant at its Oshodi Branch Lagos. She stated inter alia that on 1/3/2007, the Appellant’s Oshodi Branch was attacked by armed robbers around 1:05p.m. and she was present in the banking hall when the attacks occurred. She described the incident as violent with the robbers as they made their way into the bank. However, she maintained that the Appellant was not in any way negligent in providing adequate security for the bank premises and its customers and that the security measures included three armed mobile policemen on duty and four civilian security guards on the premises. In the course of the robbery, two of the three policemen were shot and killed and the third policeman ran for his safety with the other security guards. The armed robbers shot at bank workers, customers and even mere passers – by on the street. She stated that the Oshodi Branch did not have the metal detecting door but asserted that the doors were just being introduced into banking halls as of March 2007 and that the Appellant had in sympathy offered the sum of N500,000.00 to the family of the deceased for their loss but they rejected it. Under cross examination, she admitted that she was unfamiliar with the Bank’s protocol on reaching out to the victims and survivors of the deceased following the bank robbery attacks of 1/3/2007.
It was on the above pleadings and evidence, oral and documentary, as led by the parties that the Court below upon a review and evaluation of the totality of the evidence and the applicable law held alia thus:
”…Now I raised a sole issue for determination: whether the Claimant is entitled to its claims. The gist of this suit is a claim of damage for negligence caused by the Defendant albeit the Defendant has denied the existence of duty of care”
In our present case it is the argument by the Claimant that failure of the Defendant to install the requisite security apparatus in the entrance to its premises was negligent which breached the duty it owed the deceased who was a valid customer of the Defendant. Consequently, the deceased lost his life from gunshot wounds. I cannot but agree more with the Claimant that the Defendant owed a duty of care to all its customers to ensure their safety within its premises. More so, after the bank had experienced two robbery attacks in the past, it is a notorious fact, although unfortunately, that Oshodi in Lagos is an area highly infested by hoodlums and is a black spot area. Locating a bank in that area calls for extra security and surveillance. The Installation of CCTV cannot prevent the attack by armed robbers, as CCTV is meant to capture actions within and outside the bank. It does not prevent actions as in this case the armed robbery attack. It is without doubt that the Defendant was negligent by not taking the necessary precaution of fixing a requisite security door at the entrance to its premises; thus breaching the duty of care it owed its customers, in particular the deceased. The Defendant owed Mr. Ogeh a duty of case and he died in consequence of the Defendant’s breach of that duty?Once there is a wrong, there must be a remedy. Special damages compensate the Claimant for the quantifiable monetary losses suffered by the Claimant.I have considered the age of the children”.
The children were deprived of enjoying fatherly love and affections. The widow was deprived of love and affection of her husband. All of these would not have happened if the Defendant had not been negligent in ensuring adequate security of its premises, breach of which caused the invasion of armed robbers on it premises and the death of Mr. Ogeh See pages 359 – 367 of the record of appeal.
My lords, I shall commence the consideration of issue three with the issue of the validity or otherwise of the statement on oath of the DW1, since if it is found to be invalid then it would mean that, DW1 being its sole witness, the Appellant led no evidence at all at the trial of this case with which the Court below would have been placed on the imaginary scale of justice to weight to see where the weight of the evidence preponderates as between the Respondent, as Claimant, and the Appellant, as Defendant before the Court below. At the trial, as in the oriented record, the DW1 was thoroughly cross examined as to the validity of her statement on oath which she had adopted as her evidence in chief before the Court below. I shall reproduce, for the purpose of clarity and proper analysis, the cross examination evidence of the DW1 in the printed record as follows:
DW1 statement on oath is grossly incompetent going by the evidence she gave under cross examination before the Court below when she stated inter alia thus:
Q: Where did you sign this your statement on oath”
A: It was at the office of the former lawyer in charge of this case
Q: You signed the witness statement on oath in his office then went to your office
A: No, then he was at Igbosere, So we brought the oath to Igbosere Magistrate, the High Court (sic) to do some signing
Q: But you signed in his office?
A:Yes, thereafter I now left.
See pages 277 – 278 of the record of appeal.
On the above evidence before the Court below as in the record of appeal, could it be said that the statement on oath adopted as the evidence in chief of the DW1, the sole witness of the Appellant was valid in law? In law, when it is required that a writ of summons shall be accompanied with the list of witnesses and their written statement on oath, which would be adopted by the witness as the evidence in chief at the trial, such statement on oath must be one sworn to in compliance with the Oaths Act and the Evidence Law 2011 to be valid. The irreducible minimum requirement of a valid statement on oath is that it must be sworn to before a Commissioner of Oath or at least before a notary public. Thus, failure to comply with this mandatory requirement for a valid oath would render such a statement on oath incompetent and incapable of supporting any evidence in the Court.
However, where such evidence, though invalid, has inadvertently been received in evidence by the trial Court, it must be expunged at the judgment writing stage by the trial Court so that the case is decided on legally admissible evidence only as required by law. Where, the trial Court failed to do this and the issue is properly raised before the appellate Court, such evidence would be expunged since in law the duty to hear and determine matters on legally admissible evidence only extends to all Courts, be it trial or appellate, without exceptions! See Order 3 Rule 2(1)(c) of the High Court of Lagos State (Civil Procedure) Rules 2012 and Section 109 of the Evidence Act (2011). See also Ishaq & Anor V. INEC & Ors (2008) LPELR – 4336 (CA); Maraya Plastic Ltd V. Inland Bank PLC (2002) NWLR (Pt 109) 120; Brossette Manufacturing Nig. Ltd V. M/S Ola Ilemobola Limited & Ors (2007) LPELR -809 (SC); Kalio V Woluchem (1985) 1 NWLR (Part 4) 610 @ 628; Okagbue V. Romaine (1982) 5 SC 133; Olaniyan V. Oyewole (2010) LPELR – 9109 (CA).
In Ishaq & Anor V. INEC & Ors (2008) LPELR – 4336 (CA), this Court had held inter alia thus:
”Where a witness deposition is not sworn to before a Commissioner for Oath; the statement does not qualify as the witness statement on oath. It is the swearing of the witness statement before a commissioner for oath qualifies the document as a witness deposition will accept as the evidence of the oath therefore, there is no witness statement before the tribunal.”
See also Maraya Plastic Ltd vs Inland Bank PLC (2002) NWLR (Pt 109 @ p. 120
In law, once inadmissible or invalid or incompetent evidence had been admitted by the trial Court perhaps inadvertently, it stands to be expunged either by the trial Court in its judgment or on appeal by the appellate Court if the issue was properly raised before the appellate Court. In Brossette Manufacturing Nig. Ltd V. M/S Ola Ilemobola Limited & Ors (2007) LPELR -809 (SC), the Supreme Court had re-echoed this salient position of the law thus:
”A trial judge has the right to expunge from the record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document as the stage of address.
Having sufficiently averted my mind to the above position of the law and having calmly considered the submissions of Counsel for the parties in this appeal and the cross examination evidence of the DW1, I find that the statement on oath, purportedly adopted by the DW1 as her evidence in chief before the Court below as in the record of appeal, was grossly invalid having not been sworn before a Commissioner for Oath as required by law but before the former counsel to the Appellant, going by her own admission.
This being an issue of competence going to the root of the validity of the evidence of DW1 as to whether or not it was competently before the Court below is, in my view, an issue, which touches on the threshold question of competence and can be raised even for the first time on appeal even without prior leave of this Court sought and obtained. Indeed, it could, without much ado, even be raised suo motu by the Court and both issues of acquiescence and or waiver do not arise the circumstances. Consequently, the statement on oath adopted by the DW1, the sole witness for the Appellant at the trial, being invalid is hereby struck out and the entirety of the evidence of the DW1, as in the record of appeal, is hereby expunged so that this appeal would be determined on the legally admissible evidence of the CW1, CW2, CW3 and CW4 only and since that is the position of the law, so be it! See Brossette Manufacturing Nig. Ltd V. M/S Ola Ilemobola Limited & Ors (2007) LPELR -809 (SC).
I now come to the crux of issue three, namely: whether the Court below was right when it held that the Respondent proved its claim of negligence against the Appellant and thereby entering judgment in favor of the Respondent against the Appellant?
In the statement of claim, the Respondent had duly pleaded the fact of negligence in paragraph 11, which was particularized in paragraph 24, the fact of lack of metal detector security doors in paragraph 16 and the fact of lack of adequate security measures in paragraph 12. See pages 4 -7 of record of the record of appeal.
In Paragraph 7 of the statement of defense, the Appellant had pleaded that it had ordered for metal detecting doors which came into use in March 2007, when the incident took place on the very first day of the month of March 2007 but had not been supplied at the time of the robbery incident. However, having already struck out the statement on oath of DW1 and thereby expunged the entirety of the evidence of the DW1, the sole witness for the Appellant, all these averments of the Appellant had become bare without any iota of evidence in support and or in proof thereof.
Having considered the totality of the evidence of CW1 and CW4 and in the absence of any evidence of the Appellant to put on the imaginary scale of justice to weight to see where the weight of evidence preponderates, I find that the Court below did carry out a proper evaluation and ascription of value to the admitted evidence before it and came to the correct finding that the Appellant was in fact and indeed negligent in the incident of 1/3/2007 that led to the untimely and sudden death of the deceased by shooting. I cannot find where the Court below, despite the use of very strong words in describing the callous attitude of the Appellant veered off tangent to base its findings on mere speculations, presumptions, sentiments and or unproved averments as vehemently but erroneously and baselessly contended by the Appellant in this appeal.
In law, once a trial Court has reached the correct finding, it would not matter even if in arriving at the correct findings it had relied on some wrong reasoning. An appellant Court being not so much concerned with how the trial Court arrived at its decision but much more concerned with whether or not the decision reached is correct, will not interfere once the decision reached is correct, even if the reason, the path way, turns out to be wrong. Thus, once an appellate Court finds that the conclusion reached by a trial Court is correct, it has no duty to interfere. This is so because an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayoko & Ors. v. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
It is in line with the above well settled position of the law that I consider the error of the Court below in taking judicial notice of Oshodi area of Lagos being crime infested and a black spot without calling on the Appellant to address the Court below, though wrongful, but not deviating or distracting from correct finding of negligence against the Appellant by the Court below. See Section 124(3) of the Evidence Act 2011, which provides as follows:
”The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.”
This is so because there were other credible evidence of the failure of the Appellant to put in place the metal detecting security doors, which was crucial to the finding of negligence against the Appellant by the Court below on the face of the unchallenged credible evidence of CW4, a finding which is correct and cannot be interfered with by this Court. In law, no appellate Court ever sets aside a correct finding of a lower Court. Consequently, issue three is hereby resolved in favor of the Respondent against the Appellant.
My lords, having resolved issue one in favor of the Appellant against the Respondent, and it being an issue touching on the competence of the entire suit, the subsequent resolution of issue two partly in favor of the Respondent and issue three in favor of the Respondent, in my view, should go to no avail since without competence there can be no adjudication of the rights of the parties on the merit. Consequently, the judgment of the Court below entered in the absence of any competent suit is a nullity liable to be set aside.
In the circumstance therefore, this appeal succeeds and it is hereby allowed.
In the result, the judgment of the High Court of Lagos State, Coram: S. O. Nwaka J. in Suit No. ID/189/2010: Estate of Late Clement Ogeh & Anor V. Union Bnak of Nigeria Plc., delivered on 30/9/2015, wherein some of the claims of the Respondent as Claimant were granted against the Appellant as Defendant is hereby set aside for being a nullity.
In its stead, the Respondent?s Suit No. ID/189/2010: Estate of Late Clement Ogeh & Anor V. Union Bank of Nigeria Plc., is hereby struck out for being incompetent.
There shall be no order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the robust judgment prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., with nothing extra to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the lead Judgment just delivered by my learned brother, BIOBELE ABARAHM GEORGEWILL, JCA.
I agree with his analysis of the issues in contention and the conclusions which he reached on the said issues. I really have nothing concrete to add to the said lead Judgment, and I agree that the appeal be upheld.
I abide with the consequential orders granted in the said Judgment that both parties shall bear their respective costs.
Appearances:
Solomon Edoh, Esq. with him, O. A. Ojo, Esq.For Appellant(s)
A. Adeogun, Esq. with him, M. Alakiri, Esq., B. Olowoyeye, Esq., C. C. Onwemere, Esq. and Adeola Lewis, Esq.For Respondent(s)
