ABIOLA OFULUE vs MCVEIL INVESTMENT LTD

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA

BEFORE HON. JUSTICE (MRS) A. O OPESANWO

THIS MONDAY THE 30^TH DAY OF JANUARY  2012

SUIT NO: ID/776/2006

BETWEEN:       

MRS. OLUFUNMILAYO ABIOLA OFULUE                    } CLAIMANT

AND

MCVEIL INVESTMENT LTD                                          } DEFENDANT

M. O. OMONUSI (Trading as Ajayi Omonusi & Co)

RULING

The ruling herein is consequent upon two Applications respectively filed by the Defendant and the Clamant. For ease of convenience, the Applications which are inter-related with the resolution of one having a bearing on the other, have been consolidated herein for determination. The first Application is that filed by the Defendants dated 30^th September 2011 and Pursuant to Order 5 Rule 1(1), 2(2) and Order 6 Rule 2 (3) Of the High Court of Lagos State (Civil Procedure) Rules of 2004 praying for the following;

1. An order sinking out the Statement of Claim dated 20th of June 2006, the list of witness and the list of Inhibits used in commencing this suit.

2 An order of this Honourable court striking out this suit of Claimant for being in competent.

A six paragraph affidavit of 4^th October 2011 was filed in support of this Motion and at the heart of  this document is the deposition contained in paragraph 4 (four) which states; "That the Statement of Claim, list of witness and list of exhibits with which this suit was commenced were signed by one "Enitan associates".                                               

The submission of the defendant is simply anchored on the Supreme Court decision in Okafor & Ors v. Nweke & Ors (2007) 3 S C Pt.11 page 57 where,,, the court considered the provisions of: Sections 24 and Section 2(1) of the Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria 1990. For ease of reference the aforementioned provisions are respectively rpnrnd,^.

S.24 LPA; "A is person entitled in accordance with the provisions of this act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office or proceeding"                           

S. 2(1) LPA; "Subject to the provision of this act a person shall be entitled to practice as a Barrister and Solicitor, if and only if his name is on the roll”

It is submitted that the combined effect or these provisions is to permit only persons whose names are on the register/roll of persons called to the Nigerian Bar, engage in any form of legal practice in Nigeria. In a nut shell, the argument is that legal process can only be endorsed in the name of a legal Practitioner duly enrolled. The exception or extension to the foregoing is as provided by Order 6 rule 1 and 2(2) which permits a Claimant himself to sign the Originating process where he sues in his person. The exact provision is reproduced thus;

"Order 6 rules 1 & 2(3): "originating Process shall be prepared by a Claimant or his Legal Practitioner............

3) Each copy (Originating Process) shall be signed by the Legal Practitioner or by a Claimant where he sues in person..,............."

The Defendant/Applicant has argued that the situation herein is similar to that which was encountered in Okafor'scase (Supra) wherein the Originating Process was not signed by a Legal practitioner but rather in the firm's name of; "J.H.C OKOLO SAN &CO". Counsel submitted that in the instant case, the exhibited documents marked A, B and C and respectively attached to the supporting affidavit herein purportedly being the Originating Process and front loading documents, were all endorsed in the name of; "Enitan Associates" and hence; the Statement of Claim dated 20^th of June 2006 and other Originating Processes signed by one 'Enitan associates' not being a Legal Practitioner be struck out and likewise the suit, on the ground that the same is incompetent having been initiated by a person who is not a Legal practitioner as required by Law and the Rules of this Honourable Court.

In this regard the Defendant/Applicant has raised two issues for determination, that is; (a) Whether the Statement of Claim, List of Witnesses and List of Exhibits with which this suit was commenced are null and void?

(b) If the answer to the above is in the affirmative, whether this suit is competent in the circumstance?

In reaction to this Application, the Claimant filed a Counter Affidavit of 11 (Eleven) paragraphs dated 7^th October 2011 and deposed to by one Adeboia Giwa, a Legal Practitioner in the Chambers of Enitan Associates, the Respondent's Solicitors herein. Attached to this document is one Exhibit, marked 'Al' and same being the Writ of Summons issued in commencing the suit. The purpose for which this document was exhibited is to show that not only was the document (Writ of Summons) signed by Counsel but the Counsel who caused the same to be issued and whose signature appeared on the said document is also named to be one; "Mr. Ogundiji Osaze Melody Esq. of Enitan Associates ...". The depositions contained in paragraph 5 – 10 are quite instructive and are hereinafter reproduced,

“5. That the suit was commenced by a writ of summons dated 20^th June 2006

6. That the writ of summons was issued and duly signed by the lawyer who prepared it; one Ogundiji Osazc Melody Esq. who also appended his signature on the writ of summons. Attached and marked Exhibit A1 is the writ of Summons.

7. That the writ of summons was accompanied by a Statement of claim, Claimant's list of witnesses, Claimants' witness written statement on oath and list of exhibits and other front loaded (sic) processes.

8. That the lawyer who prepared the writ of summons and all the other processes also appended his signature to the statement of claim, list of exhibits, and list of witnesses although his name was inadvertently omitted.

9. That Ogundiji Osaze Melody Esq. is a legal practitioner known to law and his signature was appended to all the processes.

10. That the Defendant's Application is vexatious and It will be in the interest of Justice to dismiss the Defendants/Applicants' Application with substantial cost"

My understanding of the foregoing depositions is that according to the Claimant's; of alt the processes filed when the suit was commenced, only the writ of summons had the name of counsel whose signature appeared therein indicated thereon. In essence, all the documents referred to/complained of, were duly signed by counsel, in the law firm of; 'Enitan associates' but unlike the Writ, all the other document omitted the name of counsel who signed the documents.

The Claimant/Respondent in her written submission filed on the 7^th October 2011 approached the issue from two sides; the first is to critically explore the definition of Originating Process and in which regard Counsel referred to the provisions of Order 3 Rules 2(2) of the High Court of Lagos State (Civil Procedure) Rules of this court 2004 which requires preparation of Originating process by a Claimant or his Legal Practitioner and each copy .... Shall be signed by the legal practitioner or by a Claimant where he sues in person. Counsel referred to Order 1 Rules 2(3) and Order 3 for the definition of Originating process that is; any court process by which a suit is initiated or commenced and in that regard emphasized a writ of summons. He runner argued that within the contemplation of the provisions of S.24 of the Legal Practitioners Act, LFN 2004, Order 6 rule 2(3) Order 3 rule 2(1); the writ of summons by which the suit was commenced was properly issued since same was duly signed by a Legal Practitioner; Mr. Ogundiji Osaze Melody whose name is on the roll of the Supreme Court. Counsel stressed that the purport of Order 3 of the Rules is to ensure that the Originating Process is accompanied by the front loading documents in order to be accepted for filing at the Registry and a suit number issued accordingly.

The second approach of Claimant/Respondent is to critically analyze the decision of Okafor (Supra) upon which the defendant Counsel relied.

Perhaps I should mention that Application herein has the consequence of terminating the proceeding herein which is part heard, with the Claimant's evidence concluded. The Claimant has made air attempt 10 correct the situation she considers is an irregularity and hence the second Application for consideration he,e4n to wit; a Motion dated 5^th October, 2011 pursuant to Order 24 Rule 1, Order 39 Rule 1 of 2004 Rules praying for the following orders:

1. AN ORDER of this Honourable Court granting the Claimant/Applicant leave to amend her statement of claim, list of witnesses and list of exhibit in terms of the proposed amended statement of claim, amended list of witnesses and amended list of exhibits herewith annexed as Exhibits OA01, OA02 and OA03.

2. AN ORDER of this Honourable Court granting the Claimant/Applicant leave to file and serve me amended statement of claim, amended list of witnesses and amended list of exhibit , on the Defendants/Respondents in this suit.

3. AN ORDER of this Honourable Court deeming the amended statement of claim, amended list of witnesses and amended list of exhibits as properly filed and served.

4. And for such further order(s) as the Honourable Court may deem fit to make in the circumstances."

There is a 9 paragraph affidavit dated 6^th October 2011 in support of the said Motion and same with three annexure marked OA01, OA02 and OA03 respectively. A written address dated 30^th September 2011 wherein the Claimant/Applicant admitted commencing this suit vide a Writ of Summons dated 20^th June 2006. It is stated that the Statement of Claim and other front loading processes which accompanied the Writ, though signed by the said Counsel, omitted his name and hence the prayers to amend the said accompanying documents in the manner proposed in the Exhibits attached hereto.

I have perused the documents proposed for amendment and my observation reveals a perfect document and by this I mean that there is no alteration, addition, subtraction being proposed to the substance of the same. There is in fact no alteration of any factual narration or averments made in the pleading and process filed earlier, at least there is no indication of any amendment on the body of the pleading and/or other front loading documents referred to. It is therefore evident that the intention of the Claimant is simply to address the error/omission raised by the defendant and this by adding/indicating the name of the legal Practitioner in the firm of “Enitan Associates" whoso signature appeared on the earlier documents filed and this being one Ogundiji Osaze Melody Esq' boldly printed in italics and underlined.

Indeed I find relevant the deposition contained in paragraph 5(iv) and the same is hereby reproduced as follows; "5(iv) That the Claimant/Applicant's Solicitors when preparing the documents tor filing inadvertently omitted and did not insert the name of the legal practitioner who prepared and filed,....the statement of claim, list of witnesses and list of exhibits although he signed them".

The Claimant has accordingly raised a single issue for determination thus; whether in the circumstance, the court can grant the Claimant leave to amend the Statement of claim, list of witnesses and list of exhibits.

In reaction to this Application for Amendment, the Defendant filed an 11 paragraph Counter Affidavit of 11^th October 2011 and a written submission. It is argued that the Claimant seeks to amend her Originating Process in an attempt to attend to the issues raised by the defendants' application to strike out the suit on the basis of its incompetence and specifically on the ground that the Originating process with which the Claimant commenced the suit was signed by a person who is not a legal practitioner. In this regard a singular issue has been raised thus; whether the Claimant can amend her incompetent statement of claim and other processes with which this suit was commenced?

The foregoing is an adequate representation of the Applications of the parties and the respective submissions and arguments proffered in support. I am of the opinion that the fulcrum of the issue herein has to do with; what constitute an Originating process. The ability to isolate this all important document(s) will greatly facilitate the determination of all issues raised by the respective parties. In this regard, it will certainly be worthwhile examining the provision of Order 4 rule 1 of the Rules of this court which provides that: "Every Originating process shall contain the claim, the relief or remedy sought and the full names and address of the Claimant". Whereas, Order 3 of the Rules specifically mentions a Writ of Summons and Originating Summons as modes of commencing actions, the provision certainly recognizes other modes of commencement, to wit; Petition and Originating Motion, suffice to say all four are Processes by which an action originates, commenced or initiated in the High Court. Of all the aforementioned methods of initiating an action, a writ is the most popular.

The suit herein was commenced by a writ of summons and as such, relevant for our purpose is the provisions of Order 3 rule 2(1) & 2 which provides;

"2(l) All civil proceedings commenced by writ of summons shall be accompanied by: a) Statement of claim, b) list of witnesses to be called at the trial, c) written statement on oath of the witness emu d) copies of every document to be relied on at the trial.

2(2) where a claimant fails to comply with Rules 2(1) above, his originating process shall not be accepted for filing by the Registry

(Emphasis is mine)

In my opinion the emphasis in the aforesaid provision is on the words 'commenced' and accompanied', A literal interpretation of the provision indicates that the action is to be regarded .is commenced or initiated upon the writ being filed except that the Originating process will not to be accepted for filing unless accompanied by relevant documents. In this regard even though the writ will not be accepted for filing except accompanied by the documents, it is only the writ that can initiate/originate an action. The Originating/initiating process remains the writ and every other document mandatory thereto are the accompanying/front loading documents. Indeed, it would be recalled that under the Rules effective prior to the promulgation of the current civil procedure Rules, that is the 1972 and 1994 Rules of court in Lagos state there was a clear distinction in initiating a suit vide a writ with general indorsement and special Indorsement and it was not unusual for a party to file a writ, have the same served and subsequently file a statement of claim. However, the advent of the 2004 Rules made an imperial order for the originating process to be accompanied with certain documents, foremost of which will be the pleading/Statement of claim and other front loading documents being the list of witnesses, written statement on oath of the witnesses and copies of the documents to be relied on at the trial. As it were, the front loading mechanism now requires the entire claim and particulars of the Claimant to be frontally put before the court and brought to the attention of the adverse party at the earliest opportunity and thereby negating any hide and seek.

The desire to eliminate the element of surprise remain one of the objectives of the front loading mechanism and it is by no means intended whittle the status of the writ or elevate the front loading documents to the status of an Originating process. Let it not be forgotten that these documents are not required when commencement is vide some other modes.

Whereas, the entire bundle of document filed at the commencement of the suit may be referred to as originating processes, I am however of the fervent opinion that the paramount document of all shall remain the writ upon which all other document shall rest. Indeed, without a writ you could not possibly file a Statement of Claim. In other words, what validates statement of claim is the writ I am however not unmindful of the principle that a Statement of claim will supersede a writ and as established in a plethora of cases notable of which are; Lahan v. Lajoyetan & Ors (1972) NSCC 460 p. 461, Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR Pt. 959 p.1, Omnia (Nig) Ltd v. Dyktrade (2007) 15 NWLR pt. 1058 p. 576 and also Ogunmola v. Saka (2011) but I daresay that-this established principle is directed at the comprehensive nature of the document (Statement of Claim) such that in its expansive nature it lends to cure any defect in particularity of the indorsement of the claim/reliefs in the writ and thereby overrides the writ but without fashioning out a new cause. An amendment to a statement claim can only be made where the Originating process is valid but not otherwise.

I should also remind us that a statement of claim being a pleading present a succinct narration of the facts of the case by counsel and may also include the reliefs which were hitherto contained in the writ. Accordingly, what validates the Statement of claim in the first instance is the writ. In the instant case there is no complaint whatsoever about this Originating Process which I have concluded is the writ. This writ was in fact endorsed as required by law and duly signed, with the name and address of counsel stated therein. The accompanying documents however which include the statement of claim were all signed/endorsed in the name of; 'Enitan Associate' but I must emphasize that the signature which appeared thereon is the same as that of counsel and as appeared on the writ and upon which basis this court is able to verify the fact that the signature is that of 'Ogundiji Osaze Melody Esq' of Enitan Associates. I reiterate that this is because the same signature of counsel whose name is stated on the writ appeared on all the other accompanying documents. As it appeared to me and which fact has not been disputed, these documents were signed by the same person, in the same ink/pen and issued on the same date.

I am of the opinion that the facts of the instant case are quite distinguishable from those heavily relied upon by the defendant. Contrary to the situation in Okafor (supra) wherein the Originating process by which the appeal was commenced was not properly endorsed to meet the requirement of the law, the Originating process herein being the writ, was endorsed as required by law and this fact in my opinion cannot be ignored. I also reiterate the substantial progress already made in this suit; the defendant has submitted to the jurisdiction of court, joined issues, participated at the trial and upon these very same documents he now complains about and all of which facts further distinguish the instant from Okafor (Supra). In addition/ I must also state that the objection in Okafor was timeous, I believe their Lordships felt the need so address the erosion of standards in legal practice and in what they described as the “anything goes” attitude, referring to the lackadaisical attitude of Counsel, failure to apply expertise and diligence, all of which was more so disappointing perhaps having regard to the stature or Counsel concerned.

Overall, I am of the opinion that having regards to the provisions of Order 6 rule 3 of the Rules of this court, the requirement that the process shall be signed by legal practitioner or by a claimant was specifically related to Originating process which is the writ of summons. See also Order 4 rules 1 and Order 3 rules 2(1) & (2). To the extent that the same signature which appeared, on the writ is the same on the accompanying documents, I hold that the identity of counsel/person who signed the writ and accompanying documents is not lost and cannot therefore  be a question for evidence to be called. The Originating process having satisfy  requirement of the law vis-a-vis the provision of Order 6 rules 3 and S. 2 and 24 of LPA 1990 I hold that the omission/failure to indorse/state the name of the le.al Practitioner on the statement claims and other accompanying documents herein is an irregularity. See Akiola v Fasehun & Ors (1967) NMLR 66.

I am in doubt as to the sincerity of the defendant's application herein which appears to me an afterthought and a desperate attempt not only to truncate the Claimant's action but more particularly to frustrate the Claimant. Finally 1 hold that the defendant's Application herein dated 30^th September 2011 fails and same is hereby dismissed while the Claimant Application dated 5th October 2011 for amendment of accompanying documents that is; statement of claim, list of witnesses and list of Exhibits herein succeeds. The proposed documents shall be filed and served within seven days of this order

Hon. Justice (Mrs.) A O Opesanwo

30^th Jan, 2012

CONTINUED FROM VOL. 11 NO 11, 7^TH MARCH 2011

1. That there was a duty of care on the part of the Defendant towards the Claimant.

2. Defendant breached that duty of care.

3. The Claimant's suffered claim is in consequence of the Defendant's breached of duty. lie referred to the case of HAB1B NIG BANK LTD V KOVA (1992) 7 NWLR pi 256 p 43 ^it 60

He argued that the Claimant in his written deposition staled (hat (he 1^st Defendant wrote a letter dated 2511 April, 2005 accepting liability for the accident which was caused by a brake failure to which the Claimant did not categorically deny and that since the Defendant's explanation of brake failure is more consistent with the circumstances surrounding the accident in question, this has neutralize any evidence of negligence by the Claimant if any. He referred lo the case of NBC PLC V BORGUNNY (1999) 2 NWLR PI 591 PC 408 AT 427.

He argued (that the acceptance of liability by the Defendants via a letter is not the same as admission of negligence as the acceptance means no more that accepting to compensate the Claimant for the unfortunate but uncontrollable accident that was due to brake failure of 1st Defendant's truck and that the Claimant at no time filed any reply to the Statement of Defence nor objected lo the admissibility of Exhibits "X" and "W" which implies that the Claimant admits the content of the document.

He submitted that it is trite that an averment in a party's pleading is deemed to have been admitted if it is not specifically denied or transversed and that it is also trite that where evidence of a witness has not been challenged, contradicted or shaken under cross examination such evidence is admissible in law as long as the evidence is in line with the evidence pleaded and the evidence must be accepted as the correct version of what was expected to be proved, lie referred to the cases of: BELLO V EWEKA (1981) 1 SC and BRITISH AIRWAYS V MAKANJUOLA (1993) 8 NWLRP 1 311 PG 2760 A.

On CW2's evidence, he urged (he court lo discountenance the evidence as CW2 is not a witness of truth since he was unable to substantiate his claim of being an experienced person of over 20 years when asked to do so under cross-examination. lie submitted that he Failed to give the basis of his supposedly comprehensive assessment of the car. He referred to the case of AIGBADION V STATE (1999) 8 NWLR Pt 586.

In respect of the second issue, he stated that the Claimant is not entitled in any way to any claim for special damages since the Claimant has been thoroughly discredited and that there are contradictions in both the evidence led at the trial and in his pleadings.

In respect of relief 1, he argued that the amount offered to the Claimant by the 1^st Defendant in Exhibit "P" was just and equitable as the amount was arrived at based on the level of damage and pre accident value of the car by an independent assessor/Adjuster/on investigation.

On relief 2, he argued that Exhibit "Q” is a worthless and unreliable document because:

1.   It can not be true that the Claimant will maintain the service of the same taxi cab driver on a daily basis for almost three years.

2. That it is not possible that a taxi cab driver who issued Exhibit 'Q' for having not been paid for the whole period was no where to be found to give evidence in support of the document.

3.  That it is not possible for the Claimant who has been working in a Bank since 1996 to had continued to hire taxi cab for 3 years without taking steps to mitigate the adverse effect of the accident and thus the Claimant will not be allowed to claim such amount as cost alternative transportation.

4. That in cases of this nature, it is always expected of a Claimant to mitigate the loss suffered as the law does not allow a party who is victim of negligence time almost in perpetuity to leave his damaged object unrepaired. He referred to the case of OBASUYI V BVL 200 12 NWLR PT 658 PC- 66S On reliefs 3 and 4, he adopted the argument of relief 2 above.

On relief 5, he stated that assuming but without conceding that the Claimant proved his case, lie will still not be entitled to interest as interest will only be ordered if it is clear that payment of interest was in contemplation between parties to a transaction or where the subject matter leading to a suit is a commercial transaction.

On relief 6, he argued that a Claimant will only be entitled to general damages after he has proved his case against the Defendant and this the Claimant had failed to do.

On relief 7, lie submitted that the Claimant who did not prove his case cannot he entitled to cost of action and urged the court to so hold.

In his own Final written address the Claimant's Counsel identified six issues for determination, to wit:

1. Whether the Claimant has established all the mandatory ingredients of the tort of negligence;               

2. Whether the Claimant is entitled to claim the cost of a replacement vehicle, less the value of the vehicle's scrap;

3. Whether    the    Claimant    is    entitled    to    claim compensation/damages for loss of use.

4. Whether the Defendants are estopped from denying absolute responsibility for the Accident

5. Whether contributory negligence is in any way attributable to the Claimant.

6. Whether the Claimant is entitled to claim interest on the monetary reliefs sought.

In respect of the First issue, he stated that the following arc mandatory ingredients which a Claimant in an action for negligence ought to establish:

A) The existence of a duty of care owed to the Claimant by the Defendant;

B) Breach of the duty of care by the Defendant;

C) Damages suffered by the Claimant as a result of the breach by the Defendant of that duty of care.

He referred to the case of ABUBAKAR V JOSEPH (Supra). He submitted mat a road user owes other motorist/road users with whom he shares the roads a duty of care, which ought not to be breached. He referred to the case of YA11AVA V OPARINDE (1997) 10 NWLR Fl 523, 126 AND GBOLADE V 01 AD1 JO (1994) 8 NWLR PT 362, 281.

He urged the court to hold that the 2nd Defendant who drove the 1^st Defendant's truck in the course of his employment, owed the Claimant a duty of care in the circumstances of this case and that the 2nd Defendant breached the duty of care owed the Claimant in the light of this case. He referred to the case of ESE1GBL V AGHOLOR (1993) 9 NWLR PT 316 PG128

He submitted that it is undeniable that the Claimant suffered a whole lot of damage as a result of the negligence of the Defendants. He referred to Exhibits 'J' to 'J4 and "D" & “E” and submitted that Exhibit "P' is an overwhelming admission of the fact that the damage sustained by the Claimant was occasioned by the Defendants' breach of duty of care owe the Claimant.

He stated that the Defendants did not plead inevitable accident/brake Failure and did not lead evidence in proof of such claim. He referred to the case of ANTS V ATOLOYE (1993) 6 PT 298 PC 237.

In respect of the second issue, he stated that the submission in paragraph 2 1.75 to 2.1.82 of the Claimant's Final address are reiterated and that the pre-accident value of the Claimant's wrecked car and the value of the vehicle's scrap as established by CW2, the only expert witness in this case and that his evidence was not controverted which is an admission of the fact that this is reasonable. He referred to the case of GOVERNOR EKITI STATE V OJO (2006) 17 NWLR PT 1007 PG 95.

In respect of the third issue, he argued that the Claimant having been deprived of the case of his car owing to the Defendants' negligence, is entitled to be compensated for loss of use in terms of expenses incurred per alternative transportation. He referred to the case of OBASIIM V BUSINESS VENTURE LTD 1995 7 NWLR PT 406 PG 184 and GBOLAHAN V OLADEJO 1994 8 NWLR PT362 P281.

He submitted that between the Claimant's claims per his entitlement for replacement of the car and the damaged for loss of use which are clearly pleaded and proved and CW1’s testimony and the Defendants' claims/assertion per Claimant's entitlement lo his claim, which claims were neither pleaded nor supported by any evidence, then it is the Claimant's pleaded and proved claims that ought to be accepted and relied on by the court.

He stated that the Claimant's claim in respect of sundry transportation is credible as special damages are not necessarily proved by the production of receipt/invoice only especially since the Claimant has given sufficient evidence before the court support of same. lie referred to the case of UNIPETROL NIG LTD) v IDIREJE LTD. (2005) 14 NWLR PI 946 P 56.

He stated that the facts pleaded and proved by the Claimant in special damages were not controverted or challenged by the Defendants nor at the trial and the submission of the Defendants in their final address to discredit the evidence of the Claimant on sundry transportation is mere speculation and not backed by evidence. He referred to the case of AGBl V OGBEH (2006) 1 I NWLR p 990 p 68. He submitted that the Defendants' argument that the Claimant did not call the taxi cab driver as a witness is totally misconceived since under the law there is no particular number of witness required to prove a case of negligence.

In respect of the fourth issue, he urged the court to hold that the Defendants are estopped from denying liability for the accident resulting in the wreckage of the Claimant's car given the unequivocal admission of the said liability in Inhibits "D" and "E” and the facts that the Defendants concede to Claimant's entitlement to compensation.

In respect of the fifth issue, he stated that it is indeed self-evident that beyond merely improperly pleading contributory negligence in the Defendants Amended Statement of Defence, the Defendants failed woefully to prove this in any manner whatsoever. He submitted that the onus is on the party relying on contributory negligence to properly plead and prove same. He referred to the case of NRC V JC EMEAHARA (1994) 2 NWLR PI 325 PC; 206.

He stated that this has not been supported and ought to be deemed abandoned by the Defendants.

In respect of the sixth issue, he stated that interest could be claimed in any of the following circumstances (1) as of right (2) on the basis of mercantile custom and (3) under the principle of equity and that the award of interest on the monetary claims of the Claimant in the circumstance of this case is recognizable in equity and urged the court to so hold. He referred to LWUNIFF. V WAYNE WEST AFRICA LTD (1989) 5 NWLR PI 122 P 422.

In his reply on point of law, the Defendants’ Counsel stated that the Claimant assertion in his written address that all denials made in the Statement of Defence amounts to admission is not correct as what held in Amayo’s case is that any evidence that is neither attacked nor discredited and is relevant to the issues joined the parties ought to be relied upon by the judge and that the court will only accept the testimony of a Claimant that is unchallenged.

He stated that in the instant case it is not only that the Defendants’ denial of the facts pleaded by the Claimant but also the Claimant’s case was thoroughly challenged a contradicted by the Defendant during trial and this is also evidenced in the Defendants’ final address. He argued that assuming but without conceding that the Defendants admitted some of the Claimant’s pleading, however the Claimant has the burden to prove his case as required by law since a Claimant is expected to succeed on the strength of his won case and not any perceived witness of the Defendant’s case. He referred to the case of ADELAKUN VS ORUKU (2006) 11 NWLR PT 992 P 625.

On the first issue raised by the Claimant in his final written address, he stated that it is trite that written address of parties cannot take the place of pleadings and evidence required to sustain or defend a claim and that there is no where the Claimant pleaded and /or proved the ingredient required to sustain a case for the tort of negligence and thus it this will go to no issue.

On the second issue raised by the Claimant in his final written address, he stated that the claimant’s submission in paragraph 3.15 of his final address that Defendants’ submission amount to speculations and not backed by evidence, he responded that the trite that civil actions are determined on preponderance of evidence of probabilities and that the Defendants’ Counsel is therefore right to have submitted the case as put forward by the Claimant is most improbable be said to amount to speculation but conclusion premised on facts. He referred to the case of UBA LTD V ADEMUYIWA (1999) 11 NWLR PT 628 AT 570.

He submitted that the Claimant's failure to call the taxi driver as a witness in this ease is fatal to the Claimant's case as the bulk of the Claimant’s claims are founded on the purported services rendered by the taxi driver, and the evidence of a material witness not called is material a case as in this case and dial such evidence is fatal to the case. He submitted further that a material witness is one whose testimony will most likely inform the decision of a court in a mailer. He referred to the case of ILESAN V STATE (1989) 3 NWLR pt 110 PG455.

He submitted that a witness through whom the Claimant is making such big claims is a material witness that needed to be called as a witness in order to establish the veracity or otherwise of the allegations and urged the court to dismiss the Claimant's claim.

On Exhibits "Y" and "Z”, he stated that Exhibit "Z" which the Claimant is alleging that DW1 signed on behalf of another person is an affidavit sworn to before a Commissioner of Oaths and the name on the affidavit is a woman's name which definitely cannot be DW1 and that the Claimant who alleged otherwise did not prove this before the court that it was indeed DW1 that signed the affidavit except urging the court to compare the two signatures which is not enough to come to the conclusion that Exhibit "Z' was signed by DW1.

He stated that the claim of perjury and impersonation are criminal in nature and cannot be proved by mere allegation and that the court cannot merely look at the two exhibits and safely concluded that both were signed by DW1.

On Exhibit "T”, he stated that Exhibit "T”, was a demand letter written by the Claimant to the 1^st Defendant and was admitted through the Claimant having admitted that he was the author. He submitted that since the Claimant realised the effect and weight of the Idler on the Claimant's ease, the Claimant tried successfully to explain the purport of this letter which was an afterthought.

He stated that the principle of law is that where a document is brought before the court and such document is written in plain and unambiguous language any attempt to add to or subtract from the content will go to no issue. He referred to the case of UBN V OZ1G1 (1994) 3 NWLR PT 333 PG 385 AND ALSO Section 32 (1) of Evidence Act CAP E 14 LFN 2004.

He staled that it is worthy of note that the Claimant had not taken lime to explain why the letter that was originally frontloaded by the Claimant was later removed from the Claimant's document that still form part of the court's record and that the Claimant/s statement that Exhibit "F” was not pleaded and be expunged from court record is misconceived since the document is admissible and relevant and can safely be relied on by the court.

In his further written address as directed by the Court, the Defendants' Learned Counsel identified one issue for determination, to wit:

Whether the Claimant in this suit is still required to prove that the Defendants were negligent as regards the accident which is the subject matter of this suit in spite of the fact that the 1^st Defendant accepted liability in respect of same?

In respect of the identified issue, he staled that the Defendants admits that the 1st Defendant wrote the letters that are before the Honourable Court wherein the 1st Defendant accepted liability for the damage done to the Claimant's car and that it is trite in respect of admission made by a party to a suit, that what is admitted needs no further proof.

He argued further that the acceptance of liability by the 1st Defendant means no more than acceptance of liability for the damage done to the Claimant's car and this does not invariably amounts to an admission of negligence by the Defendants and that admission of liability by the 1st Defendant was only to the extent that the 1st Defendant acknowledged the fact that the accident which damaged the Claimant's car was caused by the 1^st  Defendant's truck on which the 1st Defendant was willing to compensate the Claimant.

He stated that it is understandable why the 1st Defendant admitted liability for damage done to the Claimant's car but not for negligence because the 1^st Defendant knew that the accident was an unfortunate occurrence that resulted in the Claimant's car being damaged against his wish or will and for which the 1^st Defendant does not want the Claimant to suffer total loss especially since it was the 1st Defendant's truck that caused the damage.

He submitted that in the letter dated 25th April, 2005 pleaded by the 1^st Defendant at paragraph 3 of the said letter, 1st Defendant stated that the accident was due to purely mechanical defect-brake failure which is most inconsistent with an admission of negligence and that since the acceptance of liability by the 1^st Defendant does not amount to an unequivocal admission of negligence, the Claimant still owes the duty to prove negligence against the Defendants as required by law as he who asserts must prove. He referred to the case of  ELLOR V SELFRIDGE & CO. LTD (SUPRA)

He submitted further that the proof of negligence is an issue of lad which must be proved by the party alleging same by bringing facts before the court that reveals negligence and that in this present case there are no issues of lads accepted or admitted by the Defendants that the court can safely infer that the 1st Defendant admitted negligence.

He argued that in the letters written by the 1st Defendant accepting liability there are no issues of facts stated there from which the court can conclude that the Defendants were negligent and that in the absence of this, the Claimant still have to discharge the onus of proving that the Defendants' negligence caused the accident.

ONOVAE OGHENOVO vs SEVEN-UP BOTTLING CO. PLC & ANOR.

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT COURT 4, GENERAL CIVIL DIVISION

TODAY MONDAY THE 24^TH DAY OF JANUARY, 2011

BEFORE THE HON. JUSTICE OKE (MRS)

SUIT NO LD/1415/05

BETWEEN

ONOVAE OGHENOVO                                                         CLAIMANT

AND

SEVEN-UP BOTTLING CO. PLC & ANOR.               DEFENDANTS

JUDGMENT

The Claimant's Writ of Summons is dated 29^th day of August, 2005 and was filed on the same day with a 24 paragraph Statement of Claim.

The Claimant later filed an Amended Writ or Summons and Statement of Claim of 41 paragraphs dated 10^th day of June 2008 with other processes front loaded in compliance with the Rules of Court.

The Claimant's claim against the Defendants jointly and severally as indorsed on the Amended Statement of Claim dated 10^th day of June 2008 is for:

1. The sum or N420,000.00 being cost or acquiring a replacement vehicle of same specifications as the Claimant's wrecked vehicle (i.e after the deduction of the cost or the said vehicle's scrap).

2. The sum N1, 193,600.00 being cost of hiring a vehicle per alternative transportation arrangement by the Claimant from his residence, No. 21, Okuyemi Street, Itire, Lagos, to his office, No. 23, Awolowo Road, Ikoyi. Lagos at the rate N1, 600.00 per working day (excluding weekends and Public holidays (i.e N800 to and N800 fro) covering the period Friday 22nd April 2005 to Thursday 27^th March 2008.

3. The sum of N360,000.00 being cost of hiring a vehicle per alternative transportation arrangement by the Claimant for his weekend outings/engagements i.e social functions such as weddings, Birthdays, funerals. Church services/religious activities, meetings, visits to friends and relatives etc, activities invariably involving the entire members of the Claimant's household, covering the weekend of 23rd /24th April 2005 to the weekend 23rd of March 2008 Saturdays/Sundays), at the rate of N2,000.00 per weekend.

4. The sum of N684,900.00 as cost  of sundry Transportation expenses in respect of the Claimant's Dependants vis-a vis attendance of schools, attendance of coaching centers after school and running of domestic errands, among others at the rate of N900 per week-day with effect from 22nd of April 2005 to 27^th March 2008.

5. Interest on the reliefs sought above at the prevailing banking rate, in view of inflation, and thereafter at the rate of 10°o until finally liquidated.

6. The sum of N800, 000.00 as general Damages.

7. The cost of this suit.

The Defendants filed a Statement of Defence 11 paragraph dated 9th day of June 2006 and later filed an Amended Statement of Defence dated 15^th day of February, 2007.

The Claimant testify in support of his claim and called one other witness (Lekan Savage) while the Defendants called only one witness to testify in support of their defence (Obinna Chima).

Briefly the Claimant's ease was that while driving on the 21^st day of April, 2005 at Apongbon, Lagos, the 1^st Defendant's truck with full load of the Company's product wrecked his car (An Audi saloon car) in an accident involving two other cars beyond any economical repair and to which the 1st Defendant had accepted total liability but refused to compensate him for the damaged done to his car.                                                                   

According to C.W.L he is a banker with LSB International Bank and knows the Is' Defendant as a Public Limbed Company and the 2'HI Defendant as a truck driver in the employment of the 1^st Defendant and that on 21^st day of April, 2005 at Apongbon, Lagos Island, Lagos, his car, an Audi 80 saloon car with registration Number Lagos AY 990 EPE was ran into from rear by the 2nd Defendant while driving one of the sales trucks belonging to the Is' Defendant.

It was his testimony that the 2^nd Defendant was driving recklessly on that day since the lane was in a relatively free How of traffic and in the process suddenly veered off his lane and hit the CW1’s car from rear on his own rightful lane while stationary in a traffic jam. He stated that this was as a result of the 2^nd Defendant's negligence.

He stated that his car was not only hit from the rear but was also forced to hit the vehicle in front of it and was later forcefully pressed against the wall by the road side with the 1st Defendant's truck by the 2^nd Defendant and this resulted in a lot of damage to the car and that 2nd Defendant took to his heels and fled the scene of the accident immediately after the accident occurred for fear of being mobbed -by people for his manner of driving.

It was also his testimony that the accident was promptly reported to the police and investigation was carried out and the 2^nd Defendant found to he at fault.

He stated that the accident occasioned a whole lot of damage to the vital parts of the car which arc: the vehicle's right side rear door and the ventilation glass, the front grill, the side headlamp, the trafficators, the fuel tank, the bonnet, the boot cover and floor, the rear windscreen, the vehicle's led and right side rear fender, the front and rear bumpers, the vehicle's-left and right side brake lamps and trafficators, right side rear suspension the electric circuits and the right side rear chassis.

It was his testimony that in separate letters dated 25^th April, 2005 and 28^th April, 2005, the 1^st Defendant admitted liability for the accident though attributed the cause to brake failure and that alter waiting for almost 30 days for the 1^st Defendant to take definite step as per compensation and nothing was done, he wrote the Is' Defendant demanding immediate replacement of the wrecked car since the technical opinion was that any repair of the car would amount to perpetual drain on his finances.

He stated that as a result of the absence of any definite commitment on the part of the Is' Defendant to compensate him, he wrote another letter dated 27^th June, 2005 intimating them of his displeasure about the 1^st Defendant's attitude towards his being compensated and gave them an ultimatum to do something about it or he would seek redress in court.

He stated that based on the above letter, he instructed his Solicitors to write the 1^st Defendant with specific instruction demanding for replacement of the wrecked car and compensation 1br alternative transportation and that in response, the 1^st Defendant on the 22^nd July, 2005, in a letter, stated that the issue has been referred to their insurer and that the CW1 should wait for the response of their insurer.

He went further to state that 126 days after the accident, the 1^st Defendant neglected, failed and/or refused to remedy the wrongs suffered by CWI hence the institution of this suit and that in view of the pressing needs of his immediate dependants it was difficult for him to acquire another vehicle in replacement of the wrecked car but had to make alternative arrangement for transportation by hiring a taxi to convey him to and fro from his residence at Itire to his office in Ikoyi on working days and also for his weekends engagements to which she transporter issued him invoices.

He stated that based on the market survey and as confirmed by the expert opinion the pre-accident market value is N500, 000.00 and the scrap of the wrecked car was only worth N80,000.00 . According to him, the failure of the 1^st Defendant to promptly compensate him necessitated the recourse to the alternative transportation which the 1^st Defendant must take responsibility. CW1 urged the court to grant his claims.

On Cross examination by the Defendants' Counsel, he maintained that the accident occurred on 21^st of April, 2005 and he made arrangement for alternative transportation the night of the accident with the cab driver that look him home just as he was coming out of the Police Station. He told the court that he has seen Exhibit "R" the contract commenced on 22/4/05 and that he was not the only one involved in the accident.

He said that it was agreed between him and the taxi driver that he would pay the driver after the case has been determined. He told the court that the 1^st Defendant claimed that the accident was a result of brake failure. He also said that he has been a banker since 1996 and that he has a car now which he bought in 2008 through a loan being a Manager now. He told the court that he was the one that wrote Exhibit “1” and the same driver took them out at weekends for engagement from 2005 to 2008.

On re-examination, he told the court that Exhibit "I" was a gentleman's arrangement made with Nosiru Mohammed, a transport officer of the 1st Defendant and was written in order to reach a comprise that within a week everything will be sorted out which the 1^st Dependant failed to accomplish.

According CW2, he is a Technical Director" in an automobile company known as Associated Investment Motor Nig. Ltd and has been an automobile technician for the past 20 years with specialization in Honda, Audi and Mercedes Benz It was his testimony that the his company was engaged in May, 2005 to carry out a technical inspection of an Audi 80 Saloon Car with Registration number AY 990 EPE belonging to CW1 which was involved in an accident. He stated that it was after a comprehensive assessment of the car that it was found that the chassis of the car has been affected and if repaired it will not be within the factory fitted alignment.

He stated that it was also discovered that the areas where heat would be applied in repairing the chassis will weaken the body of the car and that this will eventually cause an early rusting of the body of the car and wearing of tyres at the affected sides. He staled further that upon further assessment, it was revealed that car's accessories cannot be transferred to an entirely new body since it was terribly damaged in the accident. He told the court that since he had the opportunity of servicing the car before the accident, the pre-accident market value of the car was N500, 000.00 but after the accident and based on the inspection carried by his company, it was discovered that the scrap of the accident far is only worth N80,000.00

On Cross examination by Defendants' Counsel, he told the court that he has 20 years experience as a motor mechanic and that he was an Assistant Engineer with Leventis Motors before starting his own company, lie maintained that to repair the car will be beyond economical repair because the major part of the car is beyond repair. He maintained his evidence in his statement on oath.

According to DW1, he is the Assistant Legal Services/ Property Manager of the 1^st Defendant. He told the court that the 1^st Defendant's truck was involved in an accident with three other vehicles of which the Claimant's Audi 80 saloon car was one of them and inspite of the contributory negligence of the other drivers involved in the accident the 1st Defendant magnanimously agreed to compensate the vehicles owners through their insurer UN 1C Insurance Plc.

It was his testimony that the 1s1 Defendants corporate responsibilities by the 1^st Defendant's insurer is to pay claim ranging between the sum of N161,000.00 to N950,000.00 as assessed by the independent Assessor/Adjuster/lnvestigator based on the level of damaged and pro accident value of the vehicle notwithstanding the contributory negligence of the owners.

He stated that the 1st Defendant received a high level cooperation from the referred vehicle owners who apart from the requirement to prove their ownership of the vehicles agreed promptly on the proposed terms and condition of compensation which mitigated their losses and reduced further damaged to their vehicles.

It was also his testimony that that the Claimant just like other vehicle owners was also negligent and has not acted reasonably as a road user would in the circumstances of the accident and that the Claimant displayed a high level of uncooperative attitude towards negotiation according to their insurer which implies that the Claimant is either not the real owner of the vehicle or is just on an expedition to witch hunt and extort money from the 1st Defendant.

On Cross examination by the Claimant's Counsel, he told the court that he joined the company in 1990 and that his schedule of duties includes legal administration, human resources, transportation, production etc. He said that he had worked in Administration and Procurement Department but now he is in the Legal department and also managing the company properties nation wide. He stated that this include accident port folio, that is, all accident ceases come to him which makes him to interlace between the Company's Solicitors and the insurance company in respect of such accident.

He told the court that this accident occurred in April, 2005 at Apongbon and there was a fire incident in 2004 and 2005 which destroyed the store and achieves.

He said that he resumes at work by 7.30am and closes at 5.00pm daily officially and that the vehicles involved in the accident was their own truck, an Audi car and two other cars.

He stated that a loss adjuster gets approximate estimate of the loss and the insurance company uses loss adjuster and the 1s1 Defendant uses Unic insurance company as their insurer. He admitted seeing Exhibit "W" though he didn't know what "XS" stands for neither does he know what "TBA" stands for and that Exhibit "Y" was made by him with his signature appended on it. He told the court that he didn't recognize the signature on Exhibit "Z".

The Exhibits tendered in this case are:

Exhibit "A": CW 1 Written Statement on Oath.

Exhibit "B": Claimant's proof of ownership Certificate of the damaged Audi (A T) Saloon car.

Exhibit "C": Vehicle licence of the damaged Audi (AT) Saloon car.

Exhibit "D": Letter by the 1^st Defendant dated 25/4/05 where the 1^st Defendant accepted the liability for the accident.

Exhibit "E”: Letter by the 1^st Defendant dated 28/4/05.

Exhibit “F”: Letter by the Claimant dated 19/5/05 informing the 1^st Defendant as to the technical advice that the car is beyond repair.

Exhibit “G”: Letter by the Claimant dated 27/6/05 to the 1^st Defendant.

Exhibit “H”: Letter by the Claimant’s Solicitor to the 1^st Defendant dated 18/7/05

Exhibit “I”: Letter by the Defendant dated 19/7/05

Exhibit “J” to “J4”: Photographs of the scene of the accident.

Exhibit “K”: Claimant’s Marriage Certificate.

Exhibit “L”: Copy of Claimant’s Tenancy Agreement

Exhibit “M”: Claimant’s Office Identity Card.

Exhibit “N”: Copy of the School fees receipt in respect of the Claimant’s Son showing the location of the school he is attending.

Exhibit “O”: Personal identification slips issued to the National Population Commission per the 2006 census exercise to the Claimants and his dependants.

Exhibit “P”: Letter of Defendant’s Solicitor dated 8/3/06

Exhibit “Q”: Invoice for Claimant’s alternative transportation arrangement dated 31/3/08

Exhibit “R”: Invoice for Claimant’s alternative transportation arrangement for weekend engagement dated 31/3/08.

Exhibit “S”: A certified true copy of police abstract record of accident

Exhibit “T”: Letter by Claimant dated 27/4/03 to the 1^st Defendant

Exhibit “U”: Statement on oath of CW2.

Exhibit “V”: Statement on Oath of DW1.

Exhibit “W”: Inspection report from independent assessor/adjuster/investigators.

Exhibit "X" to "X5" Cash discharge Vouchers duly executed in the accident with 1^st Defendant truck.

In his final written address the Learned Counsel to the Defendants identified two issues for determination, namely;

1. Whether the Claimant established before this court his claim that the accident involving the 1^st Defendant's truck driver and the Claimant's car on 21^st April, 2005 was caused by the 2^nd Defendant's reckless or negligence.

2. Whether based on the available facts before the court the Claimant is entitled to the damages being claimed?

In respect of the first issue, he stated that the Claimant's case against the Defendant is that the 2^nd Defendant drove recklessly and negligently on the day the accident occurred but failed to bring solid facts before the court to establish his claim that the 2^nd Defendant was recklessly driving on that day.

lie stated further that the proof of negligence does not lie in merely claiming that someone was reckless or negligent but one must establish facts that will undoubtedly point to the conclusion that the Defendant was negligent and this the Claimant has failed to do in this suit. He stated that the Claimant has failed to establish how and what the Defendant ought to have done in order to be found negligent or reckless. He referred to the case of ELLOR V SELFRIGDE & CO Ltd (1930)41 T.L.R236.

He stated that the Claimant's purported particulars of negligence and evidence given only amount to narrating what happened regarding the accident and not what led to the accident, as it is from establishing what led to the accident that court can safely infer or conclude that the 2nd Defendant was negligent or not. He submitted that to establish a case of negligence against the Defendant the following ingredient have to be proved by the Claimant:

TO BE CONTINUED…