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.

The 2nd defendant in the evidence on oath admitted that the sketch-map of the scene of the accident was taken in his presence.

See page 33, lines 10-15 of the record of proceedings.

If, as he argued, these facts are established, then learned counsel contends that the respondents as defendants at the trial cannot complain of being over-reached if the sketch map was tendered at the close of the case. They can in no way suffer any prejudice as a result. Indeed it is argued further for the appellant that the learned trial Judge, if he had admitted the sketch map, would have been in a better position to arrive at a correct decision on the issue of negligence.

It is therefore the contention of learned counsel for the appellant that the learned trial Judge was totally wrong to have refused to allow the appellant to tender for admission as an exhibit in the proceedings, the sketch-map. That course, it is argued, is permissible under the provisions of Order 47 rule (1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 1990 and section 6 (6) (b) of the 1979 Constitution, and cited Omoregbee v. Lawani (1980) 3-4 SC 108 at 122.

The learned trial Judge fell into error as he failed to adhere to the principle enunciated by him in the course of the trial that the primary role of the court is to do justice to the parties and not to be unduly technical. It is also the contention of the appellant that the learned trial Judge ought not to have invoked the provisions of section 149(d) of the Evidence Act when the refusal to admit the sketch-map was entirely his own decision. For that provisions of the Evidence Act to apply, learned counsel for the appellant submits that such evidence existed during the trial and that it was the appellant who withheld it. In support of this proposition, he cites Onwujuba v. Obienu (1991) 4 NWLR (Pt.183) 16; (1991) 5 SCNJ page 40 at 47. Learned counsel then contends that the failure to tender the sketch-map during the trial was due to the mistake of counsel. He urges the court not to punish the appellant for the mistake of counsel. Cites N.A.A. v. Adewale (1985) 3 NWLR (Pt. 13) 474 at 481.

In their response to the submission made on behalf of the appellant, it is argued for the respondents that the appellant gave no cogent reason for his failure to tender the sketch-map of the incident during the trial. It is therefore submitted for the respondents that the learned trial Judge was right to have refused to allow the appellant to tender the sketch- map after the parties had closed their respective cases. The respondents have also argued that the provisions of section 149(d) was properly applied by the lower court in the determination of the prayer of the appellant to re-open his case and tender the sketch-map of the incident.

In dealing with this issue it is apposite to refer to the relevant paragraph of the statement of claim first filed and where the appellant pleaded thus:-

Paragraph 7:- The plaintiff avers that men of Traffic Division Nigeria Police Suleja later came to the scene and took the sketch-map of the scene of the accident.

Paragraph 8:- The Vehicle Inspection Officer at Suleja also inspected the two vehicles involved i.e. Honda 175 motor-cycle No. NG 3499 AA. Styr 586 Tipper with registration No. FGN. 992 FC. The plaintiff pleads and will rely on the sketch-map. Vehicle Inspection Officer report and abstract of record of the accident at the trial.

It is thus clear from the above pleadings of the appellant that he duly pleaded the sketch-map and had evinced the intention to place reliance on it. And to that averment the respondents by their paragraph 5 of their statement of defence pleaded thus:-

“The defendants are not in a position to admit or deny paragraphs 7, 8, 9 & 10 of the plaintiff’s statement of claim and will at the trial of this suit put the plaintiff to the strictest proof thereof.”

It is noted that it has been contended for the appellant that by his pleading in paragraph 5, quoted above, the respondents must be taken to have admitted the existence of the sketch-map, hence the learned trial Judge cannot be right when he held that the respondents would be overreached should the appellant be granted leave to tender the sketch-map as an exhibit after the parties had closed their respective cases. The learned trial Judge in so holding said thus:-

“Secondly, the plaintiff seeks to amend his pleadings and to reopen his case so that he could tender the sketch-map which had been earlier pleaded. In this regard, care must be taken so as not to overreach the defendant by allowing the plaintiff to have a second bite at the cherry more so when as in this case no cogent reasons were stated (sic) failing to tender the sketch-map earlier on. It is my considered opinion that allowing the plaintiff to tender the sketch-map after the close of his case will have an overreaching effect on the defendant (sic) case, and consequently I refuse to grant that aspect of the plaintiff’s prayer.”

The complaint as I have said above is that the learned trial Judge was wrong to have refused to grant leave to the appellant to amend his pleadings for the purpose of calling evidence for the admission of the sketch-map of the incident as an exhibit. It is however clear that the learned trial Judge decided against the amendment on the main ground that the appellant did not give any cogent reason to explain why the sketch-map was not tendered before the appellant closed his case, being the plaintiff at the trial. In view of this position taken by the learned trial Judge, it is necessary to refer to the cognate paragraphs of the affidavit filed in support of that application before the lower court. In this regard I refer to paragraph 4(v) and 4(vi) of the affidavit sworn to by Kate Akpan who describes herself as a clerk in the chambers of Karina Tunya & Co., at Abuja. The paragraphs Bread thus:-

“4(v) The sketch-map of the scene of the accident was not tendered during the trial.

(vi) It will assist the court to resolve the issue in dispute if the sketch-map is tendered.”

The lower court as I have already observed rejected the plea of the appellant to have his case reopened for the sketch-map to be tendered as an exhibit. The question then is whether the learned trial Judge was right to have ruled against him.

It is argued for the appellant that the pleadings clearly averred that the appellant would at the trial place reliance on the sketch-map.

It is submitted also that by their pleadings the respondents should be deemed to have admitted that averment. Hence it is argued that the learned trial Judge fell into error in refusing to allow the appellant to reopen his case after the close of the case for the defence. It is therefore also contended that the learned trial Judge erred in dismissing the application on the ground that allowing the appellant’s case to be re-opened at that stage will have an overreaching effect on the case for the respondents. The learned trial Judge in corning to that conclusion also held that the appellant had not given any cogent reason why he failed to tender the sketch-map during the trial. The learned counsel for the appellant, however, contends in his brief of argument that by that decision of the lower court, the appellant was punished for the mistake of his counsel. This it is argued is contrary to the principle laid down in N.A.A. v. Adewale (1985) 3 NWLR (Pt. 13) 474 at 481. It is therefore the submission of learned counsel to the appellant that the trial Judge should have properly allowed the calling or re-calling of witnesses to tender the sketch-map under Order 47 rule 1 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 1990. In support of this submission, he has referred to Omoregbee v. Lawani (1980) 3-4 SC. 108 at 122.

The respondents in their brief settled for them by their learned counsel T.P. Manjuk Esq. took the view that the learned trial Judge was right to have disallowed the appellant to re-open his case after the defendants have closed their case. He agrees with the learned trial Judge that the appellant had not given cogent reasons for not tendering the sketch-map in the course of the hearing.

From the argument proffered on behalf of the parties by their respective learned counsel it seems to me clear that what is at issue is whether the learned trial Judge exercised his discretion properly by his refusal to allow the appellant to reopen his case. This was to enable the appellant to tender the sketch-map of the incident.

Now the learned trial Judge in deciding to reject the appellant’s prayer, took the view that the appellant did not give good reasons to show why the sketch-map was not tendered during the presentation of the case for the appellant. Indeed the application was not brought until the defence had closed their defence. It is settled that the appellant’s application is an invitation to the court to exercise in his favour the discretionary powers vested in the court. This is because the appellant would not have needed to apply to the court to tender the sketch-map if it was done during the presentation of his case. But having not done it at that time, he surely would need to persuade the court to do so. It follows that in order to persuade the court to allow the appellant to re-open his case the appellant is obliged to disclose reasons that would persuade the court to exercise its discretion in his favour. The principle is in my view similar to that which the court applies where a party who had failed to do that which he needed to do within the period allowed by the rules of court. For that party to do the act beyond the period so provided by the rules, he must give cogent reasons to persuade the court to exercise its undoubted discretionary power in its favour. In this regard, I find apposite the observation of Henn Collins, J., in Finding v. Finding (1939) 2 All E.R. 173 at 177:-

“We are asked by the appellant to extend an indulgence to him. The court can do that only on settled principles, the chief of which is that it has an absolute discretion in the matter. That discretion must be exercised judicially, and, having regard to certain not very sharply defined principles- necessarily not sharply defined, inasmuch as one is dealing with a question of discretion, which must vary with every case. As was pointed out by Cotton, L. J., in the passage which Langton, J., has read, one who asks the court to grant him that indulgence must show something which entitles him to the exercise of it. That something is, as a rule, either lack of means, mistake, or accident. Those are only instances, and certainly they do not constitute an exhaustive list”.In the instant case the question before the trial court is whether the appellant had given good reasons for the court to exercise his discretion in his favour. The court took the view that he had not given enough reasons to show why he had not called the necessary witness to tender the sketch-map during the presentation of the case of the appellant. I have also had a close look at the affidavit filed in support of the application made on behalf of the appellant. It is revealing that in the said affidavit deposed to by a Miss Kate Akpan all that was said concerning the application are contained in paragraph 4(v), (vi) and (vii) which read:-

4(v) The sketch-map of the scene of the accident was not tendered during the trial.

4(vi) It will assist the court to resolve the issue in dispute if the sketch-map is tendered.

4(vii) The respondent will not be prejudiced by this applicant.

A careful reading of the three averments made in the above paragraphs of the affidavit obviously disclosed no reasons why the sketch-map of the scene was not tendered during the trial.

In Ojiegbe & Anor v. Ubani & Anor. (1961) All NLR 277 at 280; (1961) 1 SCNLR 389 at 393. In that case, after the case on either side had been closed, the petitioners’ counsel sought to recall a witness to put a document in evidence. The other side objected. The court ruled that the witness cannot be recalled without the other side consenting to it. On appeal to the Supreme Court, Ademola, C.J.F. (as he then was) upholding the ruling of the lower court at page 280, said:-

“This appears to be the correct practice and I fail to see how this can be regarded as a refusal to admit a document in evidence.”

It would appear then that a party seeking to re-open his case after the case on either side had been closed would require to have the consent of the other party to the action. In the absence of such a consent, the party seeking to have his case reopened in such circumstance would then have to depend on the exercise of the discretionary power of the court to do so.It seems to me therefore that where an applicant seeks to be allowed to do an act which he omitted to do when he ought to have done it during the trial has a duty to give reasons that are adequate and reasonable to explain his omission and/or failure to do the act at the appropriate time during the said trial.

It is not sufficient for the erring party to merely ask for the order of court to that effect. This is because the erring party, the appellant as the applicant in the lower court, was there asking the court to exercise the discretionary power of the court in his favour. It is not enough to make a mere averment for the leave of court to tender the sketch-map of the scene at the end of the case of the defendant. The learned trial Judge is therefore right for refusing that application as presented before the court.

The learned counsel for the appellant has also argued in the appellant’s brief that the omission to tender the sketch-map of the scene during the proceedings be regarded as counsel’s error. Upon that premise he urges that the appellant should not be made to suffer on account of the error on the part of counsel.

This is a proposition that has almost become a principle which courts of record have recognised over the years. But at the same time the principle would not be applied simply upon the assertion of counsel only.

Having regard to the very nature of the application, which is in essence an appeal to the discretionary power of the court to grant an indulgence to the applicant, then that party is obliged to give reasons which would persuade the court to grant that favour. See Williams v. Hope Rising Valumary Funds Society (1982) 2 SC 145; Doherty v. Doherty (1964) 1 All NLR 299. In respect of the case in hand it is evident that the appellant did not disclose by his affidavit the reasons why the sketch-map was not tendered during the proceedings. It is also very clear from the same affidavit that the learned counsel to the appellant who now pleads that the omission to put in the sketch-map when appropriate in the proceedings did n

ot similarly give any reasons for the said negligence or error on his part. As already observed, it is I think served principle that where a litigant wishes to enjoy the indulgence of the court, that party ought to be able to appeal to the conscience of the court by giving such reasons as would persuade the court to act in his favour.

For all I have said above, I do not see why I should interfere with the exercise of the discretionary power inverted with the court below in (his court below in this appeal. This issue is therefore resolved against the appellant.

Issue 2.

In respect of this issue the appellant is contending that the evidence of D.W.1 raised new issues not fairly arising out of the pleadings as they stood when hearing of the case commenced. The learned counsel for the appellant then contends that the evidence of D.W.1 ascribing negligence to the appellant did not fairly arise from the pleadings. Hence it is urged that the evidence of D.W.1 at page 32, lines 42-43 and page 33 lines 1 – 6, be expunged from the record. This question was raised at the trial court and the learned trial Judge had considered it within the context of Order 25 rule 17 of the Federal Capital Territory High Court Rules. The learned trial Judge then held that the piece of evidence fell within the pleadings, and that in any event the appellant was not taken by surprise. But for the appellant it is argued that the learned trial Judge fell on to error in that the evidence of D.W. which reads “I had already entered the place when somebody riding a motorcycle came and hit me at the back. I had already left the motor road by that time when the motorcylist hit me from the back” did not properly arise from the pleadings. Submits that as those facts being statement of fact attributing negligence to the appellant they have to be specifically pleaded. In support he cites the case of Morhihi & ors v. Enaterwere (1988) 3 SCNJ (Pt. 2) 168 at 180.

Issue 3 is devoted to what the proper interpretation of Order 24 rule 13 of the High Court of the Federal Capitial Territory, Abuja (Civil Procedure) Rules. In the view of learned counsel, the proper interpretation of the rule is that, in relation to facts or allegations within the personal knowledge of the defendant, he must either admit same specifically or deny same specifically. He therefore submits that the pleadings of the respondents, namely paragraphs 7 & 8 of the statement of defence, failed in that regard. Urges the court to answer 3 in the negative.

And finally on issue 4 it is argued for the appellant that since the evidence of D.W.1 is not admissible with regard to how the accident occurred, then the appellant ought to succeed upon his own evidence as to the cause of the accident. For this proposition he invites attention to the case of Modupe v. The State (1988) 4 NWLR (Pt.87) 130; (1988) 9 SCNJ 1 at page 4.

For the respondents it is argued for them in their brief that the submission made on behalf of the appellant that the evidence of D.W.1 does not arise out of the pleadings is erroneous. It is therefore contended for the respondents that the evidence of D.W.1 arose from the pleadings. In the view of learned counsel to the respondents, the evidence of D.W.1 is clearly admissible and cites in support the provision of Order 25 rule 17 of the High Court of the Federal Capital Territory (Civil Procedure) Rules.

Also with regard to issue (3), the contention made for the respondents is that their pleadings in paragraphs 1, 5 and 9 are proper denials of the averments made in the appellant’s pleadings. And in respect of issue 4, the submission made for the respondents is that the learned trial Judge was not only right to have accepted and believed the evidence of D.W.1, but was also right to have dismissed the appellant’s claim. This court is therefore urged to also dismiss the appeal. And in support of this submission reference was made to Ojibah v. Ojibah (1991) 5 NWLR (Pt 191) 296 at page 314.

As the submission made on behalf of the parties in respect of issues 2, 3, and 4 relate to the pleadings in the lower court, such of the averments so made as are relevant will now be reproduced.

It seems to me that what is in dispute in this appeal is whether the learned trial Judge was to have held that the appellant did not establish negligence against the respondents. In support of the contention the appellants in referring to paragraphs 7, 8, 9 and 10 to allege negligence. Paragraphs 7 and 8 of the said pleadings relate to the allegation that a sketch-map of the scene of accident was prepared. And that it would be tendered at the trial. Though the sketch-map might have been in existence at the lime of the trial, it was not tendered. I have already ruled upholding the trial court for refusing to accept the sketch-map after the respondents, being defendants, had closed their case.

I do not therefore need to dwell upon that aspect of the appeal. All that is necessary to say is that as these averments were not established at the trial, and cannot therefore assist in the determination of the appeal in favour of the appellant.

However the live issue that remains is whether the pleadings of the respondent in paragraph 3 sufficiently answers paragraph 5 of the appellants’ pleadings with regard to the allegation of negligence. And also whether the evidence given for the respondents as to how the accident happened was properly received and believed by the lower court. The appellant had by paragraph 5 of his pleadings averred thus:

On 22nd January, 1988, the plaintiff was riding a motor cycle along Minna road, Suleja when the second defendant, the servant/agent of the first defendant, so negligently drove, managed and controlled a motor vehicle with registration No. FGN 992 FC along Minna road in Suleja, that he caused or permitted the same violently to collide with the plaintiff at the said junction of the road, on the plaintiffs lane

Particulars of Negligence

(a) Driving at an excessive speed.

(b) Failing to keep any proper look out or to have any or any sufficient regard for traffic that was or might reasonably be expected to be at the said junction of the road.

(c) Swerving to enter the motor park without trafficating or/and without first ascertaining or ensuring that it was safe so to do and when it was unsafe and dangerous so to do.

(d) Failing to see the plaintiff in sufficient time to avoid colliding with him or at all.

(e) Failing to stop, to slow down, to reverse, or in any other way so to manage or control the said motor vehicle as to avoid the said collision.

The respondents in paragraph 3 of their statement of defence replied to the above averment of the appellant thus:-

(2) “The defendants vehemently deny paragraph 5 of the plaintiff’s statement of claim and aver that the 2nd defendant never drove the said vehemently. The defendants shall put the plaintiff to strictest proof of the particulars of negligence which are hereby denied.”

It is right to say that upon the state of the pleadings the respondents had properly denied negligence alleged against them by the appellants. It is also right to observe that they have also placed that burden of establishing their negligence on the appellant. At the trial, the appellant gave evidence, and the 2nd defendant being the driver of the 1st respondent also gave evidence. In the course of that evidence the driver, as D.W.1, said thus:-

“I had already entered the place when somebody riding a motor-cycle came and hit meat the back. I had already left the motor road at that time when the motor cyclist hit me from the back.”

In the view of the appellant’s learned counsel, the above evidence is not admissible having regard to the pleadings. Whereas the learned counsel to the respondents contends to the contrary calling in aid as did the learned trial Judge, Order 25, rule 17 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 1990. This rule reads:-

“The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as in the opinion of the court, ought to have been expressly set up by the defence or is inconsistent with the statements thereof or is, in the opinion of the court, likely to take the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings, as they stand and such as the plaintiff ought not to then called upon to meet.”

I have, after a careful study of the pleadings and the rules of court, come to the conclusion that the learned counsel to the respondents is right in his submission that by their pleading in paragraph 3 of their statement of defence they have not only denied negligence but were right to lead evidence thereon. And I so hold.

Having so held, I must now consider whether the learned trial Judge was right to have held that the appellant did not establish the negligence alleged against the respondents. In other words the appellant failed to discharge the onus on him to prove his claim on a balance of probabilities. It must also be borne in mind that where a court has, as in the instant case, considered the evidence before it and reached its own conclusions thereon, an appellate court would not easily overturn such conclusions.

It would do so, however, if it is shown that the trial court failed to use properly the advantage it has of hearing and seeing the witnesses who testified before it. Or if it is shown that they came to the wrong conclusions upon the evidence filed at the trial. See Chief Frank Ebba v. Chief Warri Ogodo & Anor (1984) 1 SCNLR 372; (1984) 4 SC 84; Ejuren v. Police (1961) 1 All NLR478; (1961) 2 SCNLR 208; Okoye v. Kpajie (1972) 6SC 176; Anyaduba v. N.R.T.C Ltd., (1992)5 NWLR (Pt. 243) 535 SC Obmiami Brick & Stone (Nig.) Ltd v. A.C.B. Ltd., (1992) 3 NWLR (Pt. 229) 260.

In the instant case, the learned trial Judge in my view considered very carefully the evidence before him, and commented quite properly upon the failure of the appellant to lead evidence which would have assisted him to discharge the burden on him to establish his claim in negligence against the respondents. It is therefore my humble opinion that the learned trial Judge was right to have preferred the evidence of the respondents given by their witness, the 2nd respondent.

It follows therefore that the instant case does not fall into the category of cases wherein an appellate court has a duty to intervene. In my respectful view the appellant has not shown that the learned trial Judge was wrong upon the conclusion reached on the facts and the law.

In the result, their appeal fails and it is hereby dismissed. The judgment and orders of the lower court are therefore upheld. The costs in favour of the respondents is ordered in the sum of N2,000.00

Other Citations: (1998)LCN/0409(CA)