UZOIGWE v. NRC (2020)

UZOIGWE v. NRC

(2020)LCN/15781(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/E/498/2016

Before Our Lordships:

MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

DAMIAN UZOIGWE APPELANT(S)

And

NIGERIAN RAILWAY CORPORATION RESPONDENT(S)

RATIO:

THE PRINCIPLE OF LAW THAT PARTIES ARE BOUND BY THEIR PLEADINGS

By a plethora of cases, the law is settled that parties are bound by their pleadings and what is admitted in the pleadings needs no further proof. See JAMES V. MID-MOTORS (NIG.) CO. LTD.(1978) LPELR- 1593(SC) AT 35-36(E-B).AJUWON V. AKANNI & ORS.(1993) LPELR- 311(SC) AT 27-28(F-A). ALAHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR-40083 (SC) AT 20 (E-F). Orders 15 Rule 5 and 17 Rule 2 of High Court (Civil Procedure) Rules of Ebonyi State provides that:
“5 (1) Every allegation of fact in any pleadings, if not specifically or impliedly denied in the pleadings of the opposite party, shall be taken as admitted, except as against a person under legal disability.
(2) A general denial in any pleadings shall not operate as denial of any specific fact in the pleadings of the opposing party.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

FAILURE TO RESPOND TO A LETTER WILL AMOUNT TO AN ADMISSION

It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. See REMATON SERVICE LTD. V. NEM INSURANCE PLC. (2019) LPELR- 49330 (CA) AT 19-21 (D-C).
It is not all instances of failure to react or respond to a demand letter that will amount to an admission. Before a refusal to react or respond to a letter can amount to an admission, the letter must have emanated from or relate to a business transaction or relationship between the parties. In ONUIGBO V. AZUBUIKE (2013) LPELR-22796(CA) AT 36-37 (d-a) this Court per Bdilya, JCA stated the conditions to be satisfied for admission to be inferred from failure to reply a business letter as follows:
“In Trade Bank Plc. vs. Chami (supra) @ P. 537, this Court adopted with approval the position of the law espoused in the case of Wiedemaun V. Walpole (1891) 2 QB p, 534, that before a refusal or failure to reply a business letter can be the basis for an inference of admission, four (4) conditions must be satisfied, which are: (i) It must be a business communication.(ii) It must be written in the ordinary course of business. (iii) Written by a business party to another, and (iv) Must contain an allegation or imputation of a promise or an agreement by the addressee to do or perform a certain act or obligation, thus necessitating a reply or response” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

FAILURE TO COMPLY WITH THE MANDATORY PROVISIONS OF OATHS LAW

The statutorily required statement that “I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Law” or any variation of it is completely missing. Thus there was no substantial compliance with the provision of Section 1 of the Oaths Law and First Schedule to the Law. The position of the law is that such a statement on oath is incompetent and liable to be struck out.
In addition to the failure to comply the mandatory provisions of Section 1 of the Oaths Law, DW1’s statement failed to comply with the provisions of Section 117 (1) (b) of the Evidence Act which stipulates that every affidavit taken in a cause or matter shall state the full name, trade or profession, residence and nationality of the deponent. DW1 failed to state his residence and nationality which by virtue of the use of the word “shall” in Section 117 (1) (b) of the Evidence Act is mandatory. See CORA FARMS & RESOURCES LTD V. UNION BANK (SUPRA). The inevitable conclusion is that non-compliance with the provisions of Section 1 of the Oaths Law, First Schedule thereto and Section 117 (1) (b) of the Evidence Act renders DW1’s statement on oath incompetent. It is hereby struck out. Issue 2 is resolved in favour of the appellant. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE SETTLED LAW ON THE PRINCIPLE OF VICARIOUS LIABILITY

The law is settled that for the principle of vicarious liability to arise the following must be established: 1) the liability of the wrongdoer. 2) that the wrongdoer is a servant of the master and 3) that the wrongdoer acted in the course of his employment with the master. See IFEANYI CHUKWU (OSONDU) CO.LTD. V. SONEL BONEH (NIG.) LTD. (2000) LPELR-1432 (SC) AT 15 (A-D). IYERE V. BENDEL FEED & FLOUR MILL LTD. (2008) LPELR-1578 (SC). In IFEANYI CHUKWU (OSONDU) CO.LTD. V. SONEL BONEH (NIG.) LTD.(SUPRA) the Supreme Court per OGUNDARE, J.S.C AT 27 (D-F ) held that:
“… it is a finding of liability against the servant that results in the master’s liability. In other words, in an action against the master the plaintiff to succeed must produce sufficient evidence from which the Court makes a finding of fact to the effect that the servant is liable for the tort complained of. That is, the plaintiff must establish the liability of the servant in order to succeed against the master in an action.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY DUTY OF THE TRIAL COURT

The law is settled that the evaluation and ascription of probative value to the evidence led is within the primary duty of the trial Court, where the trial has properly performed its duty and made a correct finding, the appellate Court has no business interfering with the finding. A dispassionate consideration of PW1’S evidence would show that many questions were left unanswered. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE EFFECT OF GIVING A CONTRADICTORY EVIDENCE IN SUPPORT OF A CASE

The law is settled that when a witness gives a contradictory evidence in support of a party’s case on a material issue, that witness is not worthy of being believed because the Court is not in a position to pick and chose which of the contradictory evidence to believe. The Court below was correct to hold that the police report of how the accident occurred would have solved the controversy as to how the accident happened and whose negligence caused the accident. The evidence of PW1 was of no assistance at all to the appellant. There is nothing before the Court to warrant an inference or the conclusion that the accident would not have happened without negligence on the part of somebody other than the respondent’s driver. The appellant failed woefully to discharge the burden placed on him by law to produce sufficient evidence from which the Court make a finding of fact that reckless driving and negligence of the respondent’s driver caused the accident. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in suit no. HAB/87/2014 on 12/5/2016. The appellant as the plaintiff instituted the suit for himself and on behalf of members of the family of MR. EUGENE UZOIGWE (DECEASED) and claimed the following reliefs in the statement of claim:
1. “Funeral expenses in the sum of N816,300. 00 (Eight Hundred and Sixteen Thousand and Three Hundred Naira) only (particulars of which are set out more fully in the statement of claim).
2. Damages in the sum of N200,000,000.00 (Two Hundred Million Naira) only for causing the wrongful death of Mr. Eugene Uzoigwe.
3. The cost of this action on a full indemnity basis.”

The appellant’s case was that MR. EUGENE UZOIGWE (DECEASED) was his senior brother and the head of their family. The deceased who was resident in Aba went to their village in Ebonyi State for Christmas in December, 2013. On 4/12/2013, he was walking along Onovo-Ukwu road in AmaezeIshiagu in Ivo Local Government Area of Ebonyi State when the respondent’s truck withregistration no. FG 100 F44 which was driven by one Samuel Agolua in the course of his employment in a most reckless and negligent manner and without consideration and due regard for the safety of other road users hit a stationery vehicle packed by the road side and the stationery vehicle hit the deceased. The deceased was taken to the hospital where he was pronounced dead few minutes later. The matter was reported to the police. The respondent sent its District Human Resources Manager, Paschal A. Nnorli to liaise with the police and the deceased family as regards the burial of the deceased. The respondent refused and neglected to offer any compensation for the avoidable death of the deceased despite several representations and letters written by the appellant’s solicitor.

The respondent denied the allegation that its truck hit the deceased. The respondent stated that its District Human Resources Manager and Legal Officer were sent to go and ascertain the appellant’s allegation. The allegation was found to be false. The respondent’s case was that the deceased was hit by a Toyota Car that its tyres burst and somersaulted and then hit the respondent’s truck at its rear. The respondent alleged that though the police went to the scene of the accident and discovered that its truck was also hit by the Toyota vehicle but they colluded with the appellant and charged the appellant’s driver to Court. According to the respondent, the appellant in his gold digging attempt foiled several attempts by the respondent to settle the matter by offering to offset the burial expenses of the deceased. However, a sum of N638,600.00 (six hundred and thirty eight thousand six hundred naira was paid to the deceased authorised family head.

The appellant in its reply to the statement of defence denied the allegations of the respondent including the alleged payment of N638,600:00 (six hundred and thirty eight thousand six hundred naira) to the deceased authorised family account.

Three witnesses including the appellant testified for the appellant. The respondent called one witness. In its considered judgment delivered by Eze Udu J., the Court below dismissed the suit for lacking in merit. The appellant being dissatisfied with the judgment filed his notice of appeal on 9/8/2016. The notice of appeal contains nine (9) grounds of appeal from which the appellant distilled the following issues:
1. “Whether in view of the law and circumstances of this case, the respondent admitted or is deemed to have admitted the appellant’s claim in its entirely. (Grounds 1, 2 & 3)
2. Whether the trial judge acted properly when it failed to consider and rule on the incompetency of the respondent’s witness statement on oath (heavily relied on by the trial judge) which incompetency was not challenged or controverted by the respondent. (Ground 8)
3. Whether the trial judge was right when he relied on the dictum of Ogbuagu, JSC in the case of Abubakar v. Joseph (2008) 13 NWLR (PT.1104) 307 at 356 paras. C-E to hold that a vehicle inspection officer’s report was required in this case to prove the appellant’s case and the absence thereof in this case was fatal to case. (Ground 4)
4. Whether the appellant established the case of negligence against the respondent and therefore, sufficiently proved the respondent’s liability in this case. (Grounds 5, 6, 7 & 9)”

The issues were adopted by the respondent’s counsel.

On issue 1, it is the contention of the appellant’s counsel that the failure of respondent to reply the letters written by the appellant’s solicitors and tendered as exhibits F and G amount to an admission of the facts stated in the letters. He referred to ZENON PET. & GAS LTD. V. IDRISIYYA NIG.LTD. (2006) 8 NWLR (PT.982) 221 AT 248. TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT.836) 168. IGA V. AMAKIRI (1976) 11 SC 1. AJOMALE V. YADUAT (1991) 5 NWLR (PT.191) 282. REVENUE MOBILISATION, ALLOCATION AND FISCAL COMMISSION V. ONWUEKWEIKPE (2008) LPELR-8398( CA).

It is also the contention of the appellant’s counsel that the respondent by its pleading merely admitted or resorted to a blanket or general denial of the facts pleaded in the statement of claim without stating the material facts in support of such denials. He submitted that a blanket denial or merely stating that the defendant is not in a position to admit or deny the averments in paragraphs 1,4,5, 6, 7, 8, 9, 12, 13, 17, 19 and 20 of the statement of claim as done by the respondent in paragraphs 1, 4, 5, 6, 10, 11, 12,14, 15 and 16 of the statement of defence amount to an admission. He referred to ORDER 17 RULE 2 OF THE HIGH COURT (CIVIL PROCEDURE) RULES OF EBONYI STATE, 2008. T. LAWAL OWOSHO & ORS. V. MICHEAL ADEBOWALE DADA (1984) 7 SC 149 AT 163-164. VEEPEE IND.LTD, V. COCOA IND.LTD. (2008) LPELR-1039(SC). He further submitted that exhibits J, K1 and K2 by which the respondent purported to have paid the funeral expenses of the deceased amount to an admission but that those exhibits do not show that any money was received by the appellant. He referred to Sections 85 and 86(1) of the Evidence Act, he argued that the Court below failed to take into consideration the totality and circumstances of the case and the admission by the respondent before the exercise of its discretion to require evidence in prove of the appellant’s case.

In response to the above submissions, the respondent’s counsel submitted that non reaction to exhibit J within the confine of civil litigation cannot amount to admission as the allegation contained in exhibit J is a crime which if admitted will lead to conviction and sentence not compensation as sought by the appellant. He further submitted that the issue of negligence is a matter of factwhich must be decided in the light of the fact pleaded and proved either by the admission of the respondent’s driver or sufficient evidence to support a finding of negligence on his part. He referred to UNIVERSAL TRUST BANK V. OZOEMENA (2007) 1CLR. He contended that the case of ZENON PET. & GAS LTD. V. IDRISIYYA NIG.LTD. (SUPRA) is not applicable to the instant case because the letter involved in that case was a business letter which had no imputation of crime.

RESOLUTION:
By virtue of Section 123 of The Evidence Act, 2011, a party may by their pleadings be deemed to have admitted certain facts. Section 20 of the EVIDENCE ACT, 2011 defines an admission as a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances mentioned in the Act. See OMISORE & ANOR. V. AREGBESOLA & ORS. (2015) LPELR-24803 (SC) AT 135 (A-E). Section 123 of the Evidence Act, 2011 provides that:
“123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
By a plethora of cases, the law is settled that parties are bound by their pleadings and what is admitted in the pleadings needs no further proof. See JAMES V. MID-MOTORS (NIG.) CO. LTD.(1978) LPELR- 1593(SC) AT 35-36(E-B).AJUWON V. AKANNI & ORS.(1993) LPELR- 311(SC) AT 27-28(F-A). ALAHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR-40083 (SC) AT 20 (E-F). Orders 15 Rule 5 and 17 Rule 2 of High Court (Civil Procedure) Rules of Ebonyi State provides that:
“5 (1) Every allegation of fact in any pleadings, if not specifically or impliedly denied in the pleadings of the opposite party, shall be taken as admitted, except as against a person under legal disability.
(2) A general denial in any pleadings shall not operate as denial of any specific fact in the pleadings of the opposing party.”
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2. “When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but answer the point of substance. If an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances”
In deciding whether or not there is an admission or reply to a suit in respect of an averment in a statement of claim, the Court must consider the entire pleadings of the parties as whole. See OKOYE & ORS. V. NWANKWO (2014) LPELR-23172 (SC) AT 20-21 (E-A). It is the law that admission including admission in pleadings must be unequivocal, not speculative or based on conjecture. The adverse party admitting a fact must leave the Court in no doubt as to the fact admitted. See BUHARI V. INEC & ORS. (2008) LPELR-814 (SC) AT 166 (C-D).

In the instant case, the appellant pleaded in paragraphs 3, 6, 8, 9, 10 of the statement of claim that:
3 “At about 7pm on the 4th day of December, 2013, the plaintiff while at home in Lagos, received a telephone call from a man who identified himself as Pastor Miracle informing the plaintiff that anActros truck, with Registration No. FG 100 F44, belonging to the defendant which was being driven at the time by Mr. Samuel Agolua, a driver in the employment of the defendant, had hit and overturned a stationary vehicle along the Express/Onovo-Ukwu road in Amaeze Ishiagu in Ivo Local Government Area of Ebonyi State, which stationery vehicle then hit the plaintiff’s brother Mr. Eugene Uzoigwe who was at the time walking along the same road, on the head pictures of the defendant’s said truck, with Registration No. FG 100 F44 and the overturned stationary car are attached herewith as Annexure 1.
6. The deceased Mr. Eugune Uzoigwe was a 52 years old businessman resident in Aba, Abia State. He was home to the village to spend the Christmas holiday with members of family, as the head of the Uzoigwe family. He had gone to have a haircut at a nearby barbing salon and was walking back home along the road when he was hit by the stationary vehicle which had been upturned by the defendant’s said truck, with Registration No. FG 100 F44, which was at the time being driven by Mr. Samuel Agolua in the course of his employment with the defendant. The said Mr. Samuel Agolua, drove the truck in most reckless and negligent manner and without consideration.
8. The plaintiff avers that the death of the deceased was caused by the reckless and negligent act of the defendant’s driver, Mr. Samuel Agolua drove the defendant’s vehicle without regard to the duty of care to other road users, which duty of care obligated him to maintain proper look out and operate the defendant’s vehicle in such a way as not to cause injury or harm to other road users, including pedestrians of which the deceased person was one.
PARTICULARS
i. Driving at a speed which was excessive in the circumstance.
ii. Failing to keep proper look out or to have any sufficient regard for traffic or pedestrians that was or might reasonably be expected to be on the said road.
iii. Failing to take special care to avoid overturning the nearby stationary vehicle which said vehicle hit the deceased on the head thereby resulting in his death.
iv. Driving off and on the shoulder of the road, instead of on the main road and on the proper side of the road.
9. The plaintiff reported the incident to theIshiagu Police Station, at Ishiagu. The matter was taken over by the State Police Command at Abakaliki. The police on the 5th day of December, 2013 accompanied the plaintiff to the hospital and took the corpse of his deceased brother to the mortuary while the family prepared for the burial. The mortuary receipt dated 28th day of December, 2013 is attached herewith as Annexure 3.
10. The plaintiff also made a report of the wrongful death of Mr. Eugene Uzoigwe, which was caused by the negligent and reckless operation of the defendant’s truck by their driver, to the defendant at the defendant’s Enugu office. The defendant in response sent one Paschal A. Nnorili, the district Human Resources Officer, to liase with the Nigeria Police and the deceased family with respect to the burial of the deceased. The said Mr. Pascal A. Nnorili’s while introducing himself to the plaintiff gave the latter his business card. He also informed the plaintiff that he had been mandated by the defendant to liaise with the deceased person’s family in order to make the necessary arrangement for the deceased’s funeral. The business card given to the plaintiff by Mr. Paschal Nnorili is attached herewith as Annexure 4.”

The respondent in answer to the above averments pleaded in paragraphs 2, 3, 4,6,7,9 of the statement of defence that:
2. “The defendant admits paragraph 2 of the statement of claim.
3. The defendant denies paragraph 3 of the plaintiff statement of claim and further state that the plaintiff brother Mr. EUGENE UZOIGWE was hit by a Toyota car which its tyre bust and same somersaulted and then hit the defendant’s truck with registration No. FG100F44 at its rear. The picture of the defendant’s truck is hereby pleaded and annexed as annexure B.
4. The defendant denies paragraph 4,5,6,7 of the plaintiff statement of claim.
6. The defendant denies paragraph 9.
7. The defendant denies paragraph 10 of the statement of claim and further to the plaintiff’s allegation that the defendants truck killed the deceased and that the defendant sent her human resource officer and the legal officer to go and ascertain the plaintiff’s allegation which they later found to be fault.(sic)
9. The defendant aver that her driver Samuel Agolua was roped into the case by the police who came to the scene of the accident and discovered that the defendant’s truck was also hit by the somersaulted Toyota carina that hit the deceased and charged him to Court after the plaintiff and the police corroborated.”(sic)

The respondent in compliance with Order 17 Rule 2 of High Court (Civil Procedure) Rules of Ebonyi State not only specifically denied the averments of the appellants as to how the accident which killed the deceased happened, the respondent stated its own version of how the accident happened. Where a defendant specifically denies a fact pleaded in the statement of claim and state facts to back up his denial, it is futile for the plaintiff to argue as the appellant has done that there is no specific denial. The argument of the appellant’s counsel that the respondent merely resorted to blanket or general denial in respect of the averments in paragraphs 4-8 and 15-20 of the statement of claim and is deemed to have admitted same is untenable.

The Court below considered the provisions of Section 123 of the Evidence Act stated above and its application to the facts andcircumstances of this case. The Court at page 185 of the record held that:
“It must be stated that all the plethora of cases cited by the plaintiff counsel are based on business transactions and as correct and applicable as they are in their peculiar circumstances, they are not applicable to this case. The issue of negligence is a question of fact. In other words, since negligence is a question of fact, each case must be decided in the light of the facts pleaded and proved by the plaintiff and no one case is exactly like the other. See Universal Trust Bank V. Ozoemena (Supra) the Supreme Court held “For the defendant to be liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part”
I hold that there was no admission of any sort by the defendant and assuming without conceding that the traverse of paras 1 – 6 of the defendant amounted to admission, in line with proviso of Section 123 of the Evidence Act (2011 as amended) and in exercise of my discretion, I require the facts to be proved otherwise than by such admission.”

It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. See REMATON SERVICE LTD. V. NEM INSURANCE PLC. (2019) LPELR- 49330 (CA) AT 19-21 (D-C).
It is not all instances of failure to react or respond to a demand letter that will amount to an admission. Before a refusal to react or respond to a letter can amount to an admission, the letter must have emanated from or relate to a business transaction or relationship between the parties. In ONUIGBO V. AZUBUIKE (2013) LPELR-22796(CA) AT 36-37 (d-a) this Court per Bdilya, JCA stated the conditions to be satisfied for admission to be inferred from failure to reply a business letter as follows:
“In Trade Bank Plc. vs. Chami (supra) @ P. 537, this Court adopted with approval the position of the law espoused in the case of Wiedemaun V. Walpole (1891) 2 QB p, 534, that before a refusal or failure to reply a business letter can be the basis for an inference of admission, four (4) conditions must be satisfied, which are: (i) It must be a business communication.(ii) It must be written in the ordinary course of business. (iii) Written by a business party to another, and (iv) Must contain an allegation or imputation of a promise or an agreement by the addressee to do or perform a certain act or obligation, thus necessitating a reply or response”
See DOYIN MOTORS V. SPDC (NIG) LTD. (2018) LPELR-44108 (CA) AT 38-39 (F-C). TILLEY GYADO & CO. (Nig.) Ltd. (2019) LPELR-47081 (CA) AT 48-49 (F-E).
None of the conditions enabling a Court to draw an inference of admission of the content of a letter is satisfied by exhibits E and F which are letters written by the appellant’s solicitors demanding compensation for the death of the appellant’s brother allegedly cause by the negligence of the respondent’s driver. I am of the firm view that the failure of the respondent to react to or reply the appellant’s letters which demanded compensation for the death of the deceased does not amount to admission in the circumstances of this case. Exhibits E and F does not in any way qualify as a business letter. Failure of the respondent to react or reply the letters cannot amount to admission so as to make therespondent liable for the alleged reckless driving and negligence of its driver. The appellant is only vicariously liable for the negligence of his employee. The liability of the respondent is dependent on the appellant being able to establish the allegation of reckless driving and negligence of the driver. For the appellant to succeed in his claim against the respondent, the appellant must not only establish the negligence of the driver but also the fact that the negligence act happened in the course of his employment. See BOUYGUES NIG. LTD. V. IDEH & ANOR. (1999) LPELR-13072 (CA) AT 10-11 (B-E) where this Court per ODUYEMI, J.C.A stated the conditions for the principle of vicarious liability to arise as follows:
“The main plank upon which learned counsel based his case that the non-joinder of the driver of the motor-vehicle of the defendant is fatal to the case of the plaintiff/respondents is the authority of the case Chukwu v. SolelBoneh (Nigeria) Ltd (1993) 3 NWLR pt. 280. 246 at 251; decided by this Court in its Benin Division. In his consenting judgment to the lead judgment of my learned brother, Hon. Justice Ogebe, JCA in that case, HisLordship Hon. Justice Akpabio, JCA stated at p. 252 “I think that it must be repeated that regardless of how gross the negligence of a driver might be, the liability of his master, which is vicarious, cannot arise unless and until the servant (the principal tort feasor) who had driven the vehicle has been established in Court. The same goes for any insurance company who may have underwritten the liability. In the instant case, since the driver was never made a party to the suit, the liability of his master can never arise. My learned brother Ogebe, JCA had earlier in the lead judgment, held that the failure to join the defendant’s driver as a defendant in that action in which it was alleged that the master was vicariously liable was fatal to the appellant’s case. “There is no doubt that as decided by the Supreme Court in Management Enterprises Ltd v. Otusanya (1987) 2 NWLR pt. 55 p. 179 – upon which the decision in Chukwu relied, it is the law that in an action in which the master, be that master a natural or a juristic person, is to be held liable vicariously, the negligence and liability of the servant must first be established. It is only after the liability of the servant is established that it must be determined whether or not the master or employer must shoulder the servant’s liability.”
See also STEAMCO LTD. MARK & ORS (2018) LPELR- 45947(CA) AT 23-29 (A-E).
The Court below was on very firm ground when it held that the principle of admission by inference based on failure to reply a business letter applied in ZENON PET. & GAS LTD. V. IDRISIYYA NIG.LTD. (Supra) is not applicable to the instant case. The Court in that case also emphasised the need for the Court to look at the facts and circumstances under which a letter is written in the determination of whether the refusal or failure to reply the letter amounts to an admission which the Court below ably did in the instant case.

There is another dimension to the issue of admission in this case. The driver against who the allegation of reckless driving was made is not a party to this case. I do not think an inference of admission of reckless driving and negligence resulting in the death of a human being can be made against a person who is not a party to the case. That in my view will amount to a gross denial of fair hearing guaranteed by the Constitution.

The appellant’s counsel also urged the Court to hold that the averment in paragraph 12 of the statement of defence coupled with exhibit J which is the letter of authority for payment of burial expenses and in which the cause of death was stated by the signatories and exhibits K and K1 which are First Bank of Nigeria and United Bank for Africa statements of account amount to admission of liability by the respondent. However, the appellant in paragraphs 7 and 8 of the reply to the statement of defence denied the averment in paragraph 12 of the respondent’s statement of defence. In paragraphs 6 and 7 of his additional statement on oath sworn to on 1/6/ 2015 and in his evidence under cross examination, the appellant denied knowledge of exhibit J though he admitted that he signed the list of items for burial attached to it. He insisted that neither he nor any member of his family requested for nor received any money from the respondent. The appellant’s counsel on his part argued that it is clear that exhibit J did not emanate from or signed by the appellant and exhibits K and K1 are mere instructions for payment.

It isglaring both from the pleadings, the evidence of the appellant and argument of the appellant’s counsel that the appellant is speaking from both sides of the mouth. He is approbating and reprobating. In one breath, the appellant wants to rely on exhibits J, K1 and K2 as an admission. In another breath, he is dissociating himself from the documents and its effect. The law is settled that neither counsel nor the litigant is allowed to approbate and reprobate. See OSUJI V. EKEOCHA (2009) LPELR-2816 (SC) AT 31 (C-F). POLAK INV. & LEASING CO.LTD. V.STERLING CAPITAL MARKET LTD. (2018) LPELR-46830 (CA) AT 66-67 (F-B). The appellant cannot deny knowledge of the documents and the alleged payment and then seek to rely on it as an admission.

Having considered the entire pleadings of both parties and the state of the law, the decision of the Court below that there was no admission by the respondent and to insist that the facts of negligence and liability of the respondent must be proved otherwise than by admission is well grounded and sound in law. Issue 1 is hereby resolved against the appellant.

On issue 2, the appellant’s counsel submitted thatfrom the evidence of DW1 on where he signed his statement on oath, the statement was not made at the Registry of the Court. He further submitted that the statement of the defence witness (DW1) is incompetent as the statutory declaration is glaringly missing. He referred to Section 117(1) (b) of the Evidence Act. N.N.B.PLC. v. IBW ENT.NIGERIA LTD. (1998) 6 NWLR (PT.554) 446 AT 454. EKPENETU V.OFEGOBI & ORS. (2012) LPELR-9229 (CA) AT 36 (D-E). He also submitted that failure of the deponent to state his nationality and residence affects the validity of the statement on oath. He referred to Section 6 and Section 13 of the OATHS LAW OF EBONYI STATE. BUHARI V. INEC (2008) 12 SC (PT.1) AT 243-248.

In response, the respondent’s counsel referred to the statement on oath of DW1 and his evidence on pages 76-77 and 167 -168 of the record of appeal. He urged the Court to hold that DW1’s statement was made before the Commissioner for Oaths as the Court is bound by the record before it. He submitted that no defect in the statement on oath shall invalidate the proceedings or render inadmissible any evidence ordinarily admissible in the proceedings as any irregularity in the statement on oath would be cured by subsequent statement on oath given by the deponent before the Court.

In his reply to the above submissions, the appellant’s counsel referred to EROKWU & ANOR. V. EROKWU (2016) LPELR- 41515 (CA) AT 17-22. BUHARI V. INEC (SUPRA) on the competency of DW1’S statement on oath.

RESOLUTION
Sections 1, 6 and 13 of the OATHS LAW of Ebonyi State provide that:
1. (1) The oaths to be taken as occasion shall demand shall be the oaths set out in the First Schedule to this Law. [First Schedule]
6. Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this Law shall state truly in the jurat or attestation at which place and on what date the oath or affidavit is taken or made.
13. It shall be lawful for any commissioner for oaths, notary public or any other person authorised by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.
FIRST SCHEDULE
STATUTORY DECLARATION
I………… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.
4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall –
(a) invalidate the performance of official duties; or
(b) invalidate proceedings in any Court; or
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”
I have examined DW1’s statement on oath at pages 57-58 which is also at pages 76-77 of the record of appeal, it is clear on the face of the statement that it was sworn to before the Commissioner for Oaths at the High Court Registry, Abakaliki. The evidence of DW1 on pages 167 -168 of the record of appeal is as follows:
Q. “Is it correct to say that this not the first time you are testifying for the defendant in suit.
A. It is my first time.
Q. Have you ever crossed this High Court gate.
A. Yes
Q. Tell the Court where you signed the statement on oath.
A. At the room there.

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Tell the Court the person that was there when you signed the witness on oath.
A. I don’t know the name.”
The record shows “YES’’ where the appellant’s brief stated “NO”. The law is settled that the Court as well as the parties is bound by the record of appeal. The record before this Court is properly certified by the Assistant Chief Registrar of the Court below as the true copy of the record of DW1’s evidence at the Court below. The record has not been challenged by the appellant in any way. The assertion that DW1’s statement on oath was not signed before the Commissioner for Oaths in the Court Registry is not borne out by the record of appeal.
A combined reading of the above provisions of the Oaths Law is to the effect that for an affidavit or a statement on oath to be valid, it must start with the words “I …. do solemnly and sincerely declare that” (set out in numbered paragraphs if more than one matter) and end with the statement: ”I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act or Law as the case may be” The exact words need not be used but there must be substantial compliance or at least a variation of those words. Where there is no substantial compliance with the provisions of Section 1 and First Schedule to the Oaths Law, the affidavit or statement on oath will be incompetent and invalid. See A.G. AKWA IBOM STATE & ANOR. V.AKADIAHA & ORS. (2019) LPELR-46845(CA) AT 6-12 (C-E). ABOLASE M & ORS. V.MESSRS. M. CHEVRON & ORS. (2019) LPELR-47516 (CA) AT 10-12 (C-A). CORA FARMS & RESOURCES LTD V. UNION BANK(2019) LPELR-48162 (CA) AT 21-27 (B-A). REBECCA V. A.G. FEDERATION & ORS. (2019) LPELR-47378 (CA) AT 13-16 (E-B).
Against the provisions of Section 1 of the Oaths Law and the plethora of decided cases on this issue, I have examined the DW1’s statement on oath. The statement opened with the words:
“I, Mr. Anson Eluaue a staff of Nigerian Railway Cooperation, Enugu District and hereby make oath and state as follows.”
It concluded with paragraph 16 as follows:
16. “That the plaintiff’s case be dismissed.”
The statutorily required statement that “I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Law” or any variation of it is completely missing. Thus there was no substantial compliance with the provision of Section 1 of the Oaths Law and First Schedule to the Law. The position of the law is that such a statement on oath is incompetent and liable to be struck out.
In addition to the failure to comply the mandatory provisions of Section 1 of the Oaths Law, DW1’s statement failed to comply with the provisions of Section 117 (1) (b) of the Evidence Act which stipulates that every affidavit taken in a cause or matter shall state the full name, trade or profession, residence and nationality of the deponent. DW1 failed to state his residence and nationality which by virtue of the use of the word “shall” in Section 117 (1) (b) of the Evidence Act is mandatory. See CORA FARMS & RESOURCES LTD V. UNION BANK (SUPRA). The inevitable conclusion is that non-compliance with the provisions of Section 1 of the Oaths Law, First Schedule thereto and Section 117 (1) (b) of the Evidence Act renders DW1’s statementon oath incompetent. It is hereby struck out. Issue 2 is resolved in favour of the appellant.

On issues 3 and 4, the Counsel submitted that the Court below erred in law when it purported to rely on the dictum of OGBUAGU J.S.C. IN ABUBAKAR V. JOSEPH (2008) 13 NWLR (PT.1104) 307 AT 56 (C-E) to hold that failure to produce a Vehicle Inspection Officer’s Report was fatal to the appellant’s case as there was no law supporting such holding. Counsel carried out detailed analysis of the evidence led, he submitted that PW1 was consistent in his evidence as to how the accident happened but the Court surprisingly held that PW1 contradicted himself. He urged the Court to apply the principle of res ipsa loquitor if assuming without conceding that the claim in negligence was not sufficiently proved as the facts speaks for itself that the accident could not have happened without the negligence of a party thereto. He referred to P.S.H.S.M.B. V. GOSHWE (2013) 2 NWLR (PT.1338) 383 AT 396 (E.G), 397- 398 (G-A). ROYALADE (NIG.) LTD. V. N.O.C.M PLC (2004) 8 NWLR (PT.874) 206.

Counsel argued that the vicarious liability of the appellant is settled because the driver of the vehicle which allegedly hit the deceased was in the employment of the appellant at the material time. He referred to JULIUS BERGER (NIG.) PLC V. OGUNDEHIN (2014) 2 NWLR (PT1391) 388 AT 439(D-F). U.B.N.V. AJAGU (1990) 1NWLR (PT.126)326.

In response, the respondent’s counsel submitted that the Court below was right to rely on the dictum of OGBUAGU J.S.C. IN ABUBAKAR V. JOSEPH (2008) 13 NWLR (PT.1104) 307 AT 56 (C-E) that failure to produce a Vehicle Inspection Officer’s Report was fatal to the appellant’s case because the cause of the deceased’s death was the accident, whether the accident was caused by the negligence of the respondent’s driver must be proved which the appellant failed to do. On whether the appellant established the allegation of negligence, he submitted that the Court below rightly held that PW1 contradicted himself based on his evidence under cross examination. He argued that the appellant did not prove prima facie case of negligence against the respondent’s driver to warrant a defence from the respondent. He urged the Court not to interfere with the judgment of the Court below as the appellant did not prove the cause of the accident.

RESOLUTION
The law is settled that for the principle of vicarious liability to arise the following must be established: 1) the liability of the wrongdoer. 2) that the wrongdoer is a servant of the master and 3) that the wrongdoer acted in the course of his employment with the master. See IFEANYI CHUKWU (OSONDU) CO.LTD. V. SONEL BONEH (NIG.) LTD. (2000) LPELR-1432 (SC) AT 15 (A-D). IYERE V. BENDEL FEED & FLOUR MILL LTD. (2008) LPELR-1578 (SC). In IFEANYI CHUKWU (OSONDU) CO.LTD. V. SONEL BONEH (NIG.) LTD.(SUPRA) the Supreme Court per OGUNDARE, J.S.C AT 27 (D-F ) held that:
“… it is a finding of liability against the servant that results in the master’s liability. In other words, in an action against the master the plaintiff to succeed must produce sufficient evidence from which the Court makes a finding of fact to the effect that the servant is liable for the tort complained of. That is, the plaintiff must establish the liability of the servant in order to succeed against the master in an action.”
AT PAGES 50-51, ONU, J.S.C. held that:
“It is worthy of note that an action innegligence will not necessarily fail because the servant or driver dies in the course of his duty. However, the following requirements need be proved for a cause of action in negligence to be complete or ripe, viz: (i) that the servant was negligent. (ii) that he was the servant of the master (iii) that he acted in the course of his duty.”
See also JULIUS BERGER (NIG.) PLC V. OGUNDEHIN (SUPRA),(2013) LPELR-20421(CA) AT 43 (A-B).UNION BANK V.UGBE (2019) LPELR-47893 (CA) AT 27-28 (F-A).
Thus for the appellant to succeed in the instant case, sufficient evidence must be led to establish the cause of the accident and that the accident was caused by the reckless driving and negligence of the respondent’s driver. The mere occurrence of the accident is not proof of negligence. See NIG. ENG. DYNAMIC CONST. LTD. V. DASSO & ORS. (2017) LPELR-43620(CA) AT 27-28 (F-D). The only eyewitness of the accident is PW1. The Court below dealt with the evidence as follows at pages 191-193 of the record:
“The V. I.O’s Report determines the speed, nature and extent of the accident. From the point of impact to the resultant position will show the speed, nature of the accident and the extent both in impact and collision. If there is any peculiar circumstance where the V.I.O report is required, is this instant case. This is so because opinions are not settled on the issue of the impact. PW1 stated in his statement on oath that the truck driver was on excessive speed having no regard for traffic or pedestrians and in the process hit and upturn a stationary vehicle but during cross-examination he stated that it was an iron rod at the side of the truck that hit the small Toyota. Note the understated questions and answers with the PW1.
Q. What type of vehicle was stationed on the road?
A. Small Toyota
Q. Was it the small Toyota or the truck that hit the deceased
A. The truck
Q. What part of the Truck that hit the small Toyota, is it at the rear, or at the front.
A. There was an iron rod fitted at the side of the truck that hit the stationary vehicle.
The question then arises which evidence should the Court believe? Is it evidence that the truck hit stationary vehicle and upturned it or the evidence that it was an iron road fitted at the side of the truck that hit the stationary vehicle? The evidence of the defendant is that the Toyota had burst tyre and hit the truck at the back. Looking at the two pictures of the vehicles exhibits A1 and A2 the evidence of the defendant appears more credible and in the absence of any other better evidence, I agree with it.
This case is supposed to be between the defendant, the plaintiff and the Toyota owner but the existence or nonexistence of the Toyota owner has been shrouded in mystery. Is it that plaintiff has something to hide by keeping silent on the issue of the owner of the so called Toyota? Again, the Pastor Miracle who one would have considered to be very vital eye witness and who phoned the plaintiff on the fateful day and who was instructed to take the deceased to the hospital by the plaintiff and who the plaintiff confirmed actually took the deceased to the hospital for treatment, was not invited to give evidence or even mentioned by any of the plaintiff’s witnesses. Even PW1 did not mention him as one of those in the hospital who participated in taking the deceased to the hospital. All these cast a lot of doubt on the evidence of the plaintiff and certainly should beresolved in favour of the defendant.
Before concluding on this point it must be stated that all the views and positions of the vehicle, the views of some eye witnesses, the point of impact and the resultant position of the vehicles would have been corroborated and strengthen by V.I.O’s Inspection Report and the lack of it is fatal to this case see John Joseph & ANR’s case (supra) where the supreme Court held “I note that there is no evidence of V.I.O’s (Vehicle Inspection Officer) inspecting any of the two vehicles and producing a report. As I have stated, there is no statement said to be taken and /or the report of any vehicle inspection by V.I.O or anybody else produced or tendered. So, the provision of Section 149(d) (now 167(d) of the Evidence Act can be invoked by me in the circumstance” see Bello V. Kassim (1990) NWLR (148) ONUWAJE V. OGBE IDE (1991) 3 NWLR (PT 178) 147.
I am bound by the above decision of the Apex Court and I so hold and this issue is therefore resoled against the plaintiff.”

The law is settled that the evaluation and ascription of probative value to the evidence led is within theprimary duty of the trial Court, where the trial has properly performed its duty and made a correct finding, the appellate Court has no business interfering with the finding. A dispassionate consideration of PW1’S evidence would show that many questions were left unanswered. In paragraphs 5 and 6 of his statement on oath sworn to on 3/9/14 which he adopted as his evidence, PW1 stated that:
5. “In the course of the driver driving the defendant’s truck in a reckless and negligent manner by constantly driving on and off of the main road to the side of the road the truck hit and overturned a stationery vehicle parked on the side of the road which in turn hit Mr. Eugene Uzoigwe, who was then walking along the same side of the road, on the head.
6. Upon rushing to the scene of the incident, I lifted Mr. Eugene Uzoigwe from the ground where he fell and was rushed to Nyeche Calvary Hospital, being the closest hospital or medical facility to the scene of the accident, while his blood continually pour out of the wound in his head despite my, and other peoples best effort to stop the bleeding. The profuse bleeding completely drenched my clothes. In fact, I still have the blood stained cloth with me.”

Under cross examination he said it was the truck that hit the deceased. First, the Toyota car allegedly hit by the respondent’s truck was stationery while the truck was on motion. It is not clear how a moving vehicle could hit and overturn a stationery vehicle standing on its four tyres. Secondly, PW1 under cross examination said it was an iron rod fitted to the side of the truck that hit the stationery vehicle. That means it was the side of the truck that hit the stationery vehicle. It remains a mystery how one side of a vehicle can hit another vehicle that is stationery and overturn it. Thirdly, when PW1 was asked which one of the two vehicles hit the deceased, he said it was the truck contrary to his sworn statement that it was the stationery vehicle that was hit by the truck and the stationery vehicle hit the deceased. There was an obvious contradiction in the evidence of PW1 as to how the accident occurred.

The appellant’s counsel urged the Court to apply the maxim res ipsa loquitur to the facts of this case. In PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD & ANOR.V. GOSHWE (2012) LPELR-9830 (SC) AT 13-14 (D-F) the Supreme Court per ALAGOA JSC. explained the meaning of res ipsa loquitur and when it applies as follows:
“In ROYAL ADE NIGERIA LTD. & ANOR. v. NATIONAL OIL AND CHEMICAL MARKETING COMPANY PLC(2004) 8 NWLR (PART 874) 206; (2004) 18 NSCQR 334, the Supreme Court stated the principle under which the doctrine of “Res Ipsa loquitur” becomes operative as follows: 1) Proof of the happening of an unexplained occurrence. 2) The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the Plaintiff. 3) The circumstances must point to the negligent in question being that of the Defendant rather than that of any other person. Simply put, the doctrine means the thing speaks for itself. In BARKWAY v. SOUTH WALES TRANSPORT CO. LTD. (1950) 1 ALL ER 392 the purport of the doctrine was to shift the onus on the defendant to disprove negligence. In that case the Appellant’s husband had been killed while travelling on the Respondent’s bus which accident was as a result of burst tyre. The burst tyre was as a result of an impact fracture due to heavy blows on the outside of the tyre leading to the disintegration of the inner parts. Although such a fracture might occur without leaving any visible external mark, it was contendedthat a competent driver would be to recognize the difference between a blow heavy enough to endanger the strength of the tyre and a lesser blow. The Respondent’s witnesses had argued that they had put in place a system of tyre inspection which was satisfactory but evidence showed that the Respondents had not taken all the steps they should have taken to protect passengers because they had not instructed their drivers to report heavy blows to tyres likely to cause impact fractures. See also WALSH v. HOLST & CO. LTD. (1958) 1 WLR 800; WOODS v. DUNCAN (1946) AC 401; ODEBUNMI & ORS. v. ABDULLAHI (1997) 2 NWLR (PART 489) page 526 at 535 536; POLYCARP v. NUNBIA (1992) 1 ALL NLR (PART 2) 226 at 232.”
I have examined the pictures of the two vehicles alleged to be involved in the accident. None of the pictures give any clue as to how the accident happened or that it was caused by the reckless driving and negligence of the respondent’s driver. The picture of the truck does not show any iron rod fitted in its side. The appellant having led contradictory evidence as to how the accident happened, he cannot take refuge in the maxim res ipsa loquitur to shift the burden of proof on the respondent. Res ipsa loquitur is not meant to supplement inconclusive evidence on the part of the plaintiff. See OJO V. GHARORO & 0RS.(2006) LPELR-2383(SC) AT 57-58(D-A) where the Supreme Court held that:
“The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control;(2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.” The crucial element is that res ipsa loquitur will not apply when there is evidence as to how the occurrence took place.”

For the above reasons, issues 3 and 4 are resolved against the appellant. The appeal fails, it is hereby dismissed. The judgment of the Court below is hereby affirmed. Parties shall bear their own costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.

I adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MisituraOmodere Bolaji-Yusuff, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.

For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.

Appearances:

I. E. Ugochukwu with him, I. E. Anyim For Appellant(s)

K. I. Nnamani For Respondent(s)