Patrick Nebo V. Federal Capital Development Authority & Anor (1998)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A.

This appeal is against the judgment of the High Court of Federal Capital Territory holden at Abuja, presided over by Gunmi J. in suit No. FCT/HC/236/94. In that suit the plaintiff commenced this action against the respondents for negligence and damages in the sum of N1, 121,978.84. Following the order for pleadings the matter went to trial following the exchange of pleadings.

At the trial, the plaintiff gave evidence in his own behalf and did not call any other witness. The defendants who had filed a joint statement of defence against the action called two witnesses in their defence. At the conclusion of the hearing of oral evidence of the parties, the plaintiff sought the leave of the lower court to amend his pleadings. The aim of the amendment was to allow the plaintiff to tender the alleged sketch map of the incident, and also certain receipts which the plaintiff claimed he received following various payments he made for the treatment of the injuries he suffered following the incident.

Following addresses by learned counsel the learned trial Judge refused leave to amend the pleadings with regard to the map of the incident. He however granted leave for the amendment of the pleadings to allow the plaintiff tender the receipts obtained as evidence of what he paid for treating his injuries. His case was reopened to that extent and the receipts were duly admitted in evidence. Learned counsel for the parties was thereafter ordered to submit their written addresses to the court. In a considered judgment delivered by the learned trial Judge, he concluded that the plaintiff had failed to establish his claim and it was dismissed in its entirety.

Being dissatisfied with the judgment and orders of the lower court the plaintiff has appealed to this court. By an amended notice of appeal filed with the leave of this court, the plaintiff is complaining against the said judgment upon four grounds of appeal.

In compliance with the rules of this court the parties filed and exchanged their briefs of argument. From henceforth, I will refer to the plaintiff as the appellant, and the defendants, respondents. The appellant in his brief filed on his behalf by his learned counsel, K. Tunyan Esq. has identified the following issues for the determination of the appeal:-

(1) Whether the tendering of the sketch-map after the close of the Plaintiffs case will have an over-reaching effect on the defendant’s case (ground 2).

(2) Whether the evidence of D.W.1 raised new issues not fairly arising out of the pleadings as they stood before the hearing (ground 3).

(3) Whether the paragraphs 1, 5 and 9 of the statement of defence amount to proper denials in pleadings (ground 4).

(4) Whether the judgment is supported by weight of evidence.

The respondents in the brief settled in their behalf by their learned counsel, T. P. Majouk Esq., adopted the issues as their own, the issues identified for the appellant in the appellant’s brief. I will therefore now proceed with the consideration advanced for and against those issues.

Issue NO.1. In this issue learned counsel for the appellant began his argument with the definition of the word “over reach” in Chamber’s English Dictionary. He then contends that the tendering of the sketch-map of the scene would not amount to overreaching merely because it was to be tendered after the hearing of oral evidence led by the parties had been concluded. It is his submission that for the proper determination of this issue recourse must be had to the pleadings of the parties. In this regard he refers to paragraphs 7 and 8 of the original statement of claim and paragraph 5 of the statement of defence. In his view the pleadings and the evidence led the following facts are revealed:-

(a) The sketch-map was pleaded at paragraphs 7 and 8 of the original statement of claim.

The defendants admit the existence of the sketch-map by implication at paragraph 5 of the statement of defence.