COMMISSIONER OF POLICE v.MATILUKO& 2 ORS.

IN THE CHIEF MAGISTRATE COURT OF LAGOS STATE

HOLDEN AT COURT 15, IKEJA, SITTING AT OSHODI

TODAY FRIDAY THE 27^TH DAY OF JANUARY, 2012

BEFORE HIS WORSHIP MRS. M. R. OSHO-ADEBIYI

 

COMMISSIONER OF POLICE

VS

LAIDE MATILUKO

IBIYEMI OLUWATOYIN EJIM

BOLANLE ADETOKUNBO MATILUKO

 

JUDGMENT

The three defendants were arraigned before this honourable court on a three count charge of conspiracy to commit felony to wit kidnapping contrary to S.516 Criminal Code; unlawful imprisonment contrary to S.364(2) Crim. Code and assault with a horse whip and handcuffs contrary to S.355 of the Criminal Code. All three defendants pleaded not guilty to the three count charge. Trial commenced on the 24^th June, 2010 and the following is the prosecution’s case:

 

That pw1 is a brother to the three defendants. That on 19^th June, 2007 at about 6.55am pw1 peeped through his window and saw the three defendants in company of some airforce men who asked him to open his door, that pw1 refused and they broke his door open. That in the process of breaking his door open, he hid his junior brother pw2 at the back of his door. That after gaining entrance, the defendant and the  said naval men beat up pwl, handcuffed him and drove him away in a Toyota starlet vehicle to their father's house at 11, Akinpelu street, Oshodi, that on getting there the defendants and the naval men tried in vain p locate pw2, that out of annoyance the 3 defendants and the naval men grabbed one Joshua Ikelebe, a friend to pw2, beat him up and threw him into the boot of the car. That both of them were driven in the said Toyota starlet car to Shasha airforce base where they were again beaten mercilessly. Pwl further testified that the said airforce men included one Musa Godwin Dili a.k.a M.C.Dili Osagie and Sergeant Adebowale, That he was stripped naked and hung in the air by the said airforce men with his three sisters watching after which pw1 was given a document consenting to the sale of his father's house forced to sign the said document. When he was eventually released PWI had gone ahead to report the incident at Akinpelu police station from where he was advised to go to the Lagos State Teaching Hospital where he was-eventually treated and given some prescription drugs and doctor's report as evidenced in EXHIBIT M4, M6a and M6b Before going to the hospital for treatment, pwl had taken a photograph of himself evidencing scars he got from his ordeal otherwise known as EXHIBIT M4. Under cross-examination, pwl denied attacking the airforce men but re-iterated that the 3 defendants came to his house in company of the airforce men who beat him up, handcuffed him dragged him into a car and drove him down to the airforce base at shasha, that when they got to Shasha the three defendant, joined the airrorce men in beating him up and the 3rd defendant in particular collected a baton from the airforce men and beat him up again Pwl further confirmed that when the airforce men came to Ns house with the three defendants he had to hide his brother under his bed but his brother saw all that happened although the airforce men and his sisters did not see his brother. Pw2 on the other hand testified that the three defendants are his sisters and pwl his brother. That on 19th June, 2007 when the said airforce men came knocking on his brothers door in company of the 1st defendant. That pwl had hidden him behind his door to shield him from the airforce men and 1st defendant and that the airforce men had broken into pwl-s apartment, beat up pwl, handcuffed pwl and drove him away in a Toyota starlet vehicle. That he hattgone to report at Akinpelu police station but was informed that the airforce men had already been to the police station with pwl but the police were unable to stop the said airforce men from driving away with pwl to the airforce base. That a friend eventually helped in securing the release of pwl from the airforce base. That when he saw pwl after he was released, he was unable to recognize him as he had bruises all over his face and body. The matter was later reported to the police who conducted their investigation before charging the matter to court Under cross-examination, pw2 re-iterated that the airforce men in company of 1st defendant-had broken into the apartment of pwl and that he saw all that happened because he was hiding behind the curtain, when asked to narrate the role the 3 defendants played at pw1’s house, pw2 replied that 1st defendant simply came with the airforce men into pwl-s apartment but did nothing at the scene while the 2"" and 3^rd defendants were outside the apartment. Pw2 also admitted that contrary to evidence of pwl, they had once been invited to Panti State CID over threat to Life and that the feud between the three defendants and pwl and pw2 is as a result of the 3 defendants attempting to sell their father's property. The investigating police officer pw3 testified that he had received directives to investigate a petition dated 20th June, 2007 otherwise known as EXHIBIT M4, that on receiving the petition and noting its urgency most particularly disturbing how the airforce men harassed and intimidated the police at makinde police station, he had immediately sent a signal, otherwise known as EXHIBIT M5 to makinde police station to transfer the 3 defendants plus the case file to pw3 at monitoring unit, Lagos, same was transferred to the Commissioner of Police, monitoring unit via a transfer signal otherwise known as EXHIBIT M6. Pw3 further testified that after initial investigation, he took the statements of the three defendants otherwise known as EXHIBIT M7, MB and M9. That the 3 defendants after writing their statements confessed to have invited the airforce men to brutalise and kidnap their brother which evidence of the torture was all over the body of pwl, that the 3 defendants indeed invited the airforce officers who tortured and brutalized pwl. Prosecution thereafter closed its case.

 

Learned counsel to the defendants subsequently opened its case and the following is the testimony of dw1: that herself, the 2 defendants.pwl and pw2 are all of the same parents. That their father had requested a family friend of theirs, an airforce officer named M.C.Dili to try and broker peace between the defendants, pwl and pw2. That I"1 defendant had accompanied Dili to the house of pwl and on getting there pointed out the door to the apartment of pwl to Dili, that Dili knocked on the door of pwl with 1st defendant standing behind him, that pwl opened his door and Dili greeted pwl and introduced himself as their father's friend, that on sighting 1^st defendant behind Dili, pwl attempted to slam his door but Dili used his foot to stop the door from slamming that pwl rather than return Dili's greeting attacked Dili and both of them went into a physical tussle as pwl is a martial arts expert. Dw1 further testified  that when the fight broke out between Dili and pwl, she ran to where the car was parked and observed that pwl tore Dili's airforce uniform and ran away, that

Dili and his driver ran after pwl, got hold of him and both pwl, 1^st defendant and Dili drove to Akinpelu Police Station, that at the entrance of the Police Station they met the 3rd defendant and they all went into the police station where Dili reported the incident to the police, that after reporting at the police station, Dili took pwl, dw1 and third defendant to the airforce base and settled the feud between parties, that after settling the dispute between them, they all embraced each other. That the following day being 20th June, 2007 she was arrested by the police. 1st defendant further testified that the cause of the problem between the siblings was because pwl and pw2 were collecting rents of their fathers property without remitting same to their father who at the time was living with 1st defendant due to the fact that their father ( now deceased) was blind. Under cross-examination when asked why dw1 did not report pwl and pw2 at Panti rather than invite airforce police to settle the dispute bearing in mind that both pwl and pw2 had a pending matter at Panti, 1st defendant replied that she did not want pwl and pw2 locked up, moreover she never invited Dili but that Dili was their father-s friend. When asked to clarify the portion of her statement which reads 'when these boys started again, we now invite M.C Dili to advise with the consent of the old man" dwi replied that it was their father that invited M.C.Diii. When further asked under cross-examination the rationale behind M.C.Dili driving pwl, 3rd defendant and 1st defendant from the police station to airforce base when Dili could have reported the matter at the police station, 1st defendant replied that Dili took them to the airforce base to settle disputes. When further asked if it sounded logical to settle disputes at the airforce base, 1st Defendant insisted that they had merely followed Dili to the airforce base to settle the dispute between them on the instruction of their faster. There was no re-examination.

 

2nd defendant testified that pwl, pw2 and the three defendants are siblings of the same parents. That on 18th June, 2007 she received a call from her father that he had found a responsible man to settle the raging feud between the siblings that in view of this her father had requested that she meet with them at Akinpelu the following day. That the following day after taking her children to school she called the 1^st defendant who informed her not to bother coming again for the proposed meeting, that in view of this, she did not go nor was she anywhere near the scene of purported crime. Under cross-examination, 2nd defendant stated that she actually welcomed the idea of settlement when their father brought up the idea but never conspired with anyone to kill her brothers. There was no re-examination.

 

Learned counsel to the defendant thereafter called its last witness 3^rd defendant (dw3) who testified that pwl, pw2 and all three defendants are siblings, that on 18th June, their father had called 1st defendant to inform the 3 defendants that he had organized a meeting between the 3 defendants and their brothers (pwl and pw2) and a certain Dili, a Naval man to settle the long running feud between the siblings. That on 19th June, 2007 she went to her father's house at Akinpelu from where she called 1st defendant who informed her that she was heading to the house of pwl and instructed her to wait for them at Akinpelu where pw2 stays. I hat 1st defendant arrived about 2 minutes later; that pwl, 1^st defendant and the Dili arrived in a two door car and requested her to get into the car, that she got into the car ( a two door car) where they all drove to the police station. That at the police station, the M.C.Dili lodged a complaint of assault against pwl but the police at Akinpelu rejected the case saying they were tired of Incessant reports against pwl and pw2. That she did not witness where pwl assaulted Dili but after Dili lodged a complaint against pwl at Akinpelu police station where 3rd defendant met them, that 3rd defendant got into Dili’s car and drove off with pwl, 1st defendant and herself to the airforce base where Dili settled the rift between the siblings and that they all apologized, embraced and hugged each other. Under cross-examination, 3rd defendant admitted that while they were driving to the airforce base, pwl was struggling to grasp the steering wheel from the driver who was driving the car conveying them to the airforce base, that the said airforce man named Dili then handcuffed pwl to the chair of the car after which they were all driven to the airforce base in Shasha, that pwl was not aware that he was being driven to airforce  base in Shasha. Upon further cross-examination, 3rd defendant denied! informing the court that pwl was in handcuffs while in the vehicle. Upon further cross-examination, 3rd defendant admitted that pwl was in handcuffs while they were being conveyed to the airforce base, that at Shasha airforce base Dili counseled all of them at a roundtable discussion, reconciled them and thereafter they all embraced and hugged each other after which they ail left together. That under no circumstances was pwl detained at the airforce base. When asked to expantiate on her statement that "we called the intervention of airforce men….” 3^rd defendant explained that by the word 'we' she meant her daddy and the three defendant's called the intention of the airforce men. There was no re-examination. Learned counsel to the defendant thereafter filed his written address with a plethora of authorities which I have considered in my judgment. I have further adopted the issue for determination raised by Learned counsel to the defendant in his written address

 

1. Whether the prosecution has proved all the essential elements of me offences as charged beyond any reasonable doubt.

 

In a case of kidnapping contrary to S.362(2) criminal code prosecution must prove the following;

 

1. That defendants unlawfully imprisoned pwl within Nigeria in such a manner as to prevent him from applying to court for his release

 

2. In such a manner as to prevent him from discovering to any other person the place where he is imprisoned .

 

3. In such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned.

 

From the prosecutions case, an airforce man named M.C.Dili had gone to the house of pwl with the three defendants, that pwl hid pw2 behind the door and pw2 witnessed all that happened. That the airforce men led by M.C.Dili had broken the door to the apartment of PW1, gained entrance into the apartment of pwl and all the 3 defendants and Dili had beaten him up, hand cuffed pwl and driven him away in a Toyota starlet car to their father's house at Akinpelu. Pw2 on the other hand testified that from where he was standing he only saw 1st defendant come in through the door of pwl with M.C.Dili while the 2nd and 3rd defendants were outside waiting by the car. when asked under cross-examination to describe the role played by 1^st defendant, Pw2 replied that ''……….1^st defendant did not play any role, it was Laide that came in and she did not do anything....". From evidence before the court it is obvious that,!51 defendant, 2nd defendant and 3rd " defendant did not participate in beating up pwl while in his apartment. From the prosecution's case, 2^nd defendant joined hands with the other defendants in beating up pwl at the airforce base, in her defence, 2^nd defendant testified that she never went to the airforce base with her sisters neither did she go to the house of pwl that rather she had taken her children to school, called 1st defendant to enquire where to meet up with her and 1st defendant had informed her not to bother coming again. Prosecution did not discredit testimony of dw2 which makes testimony of 2"° defendant unchallenged regarding her not being at the airforce base. Prosecution's insistence that 2nd defendant's testimony is inconsistence with her statement as she omitted to testify that she had gone to visit her father as contained in her statement goes to no issue as contradiction in the evidence of a witness should not be confused with omission. That 2nd defendant omitted to testify word for word what she wrote in her statement cannot be said to be injurious to her case as prosecution has not proved that the omitted part of her statement is an essential ingredient in proving the charge. From the evidence before the court, one thing is clear, that 1st defendant went to the house of pwl with an airforce man named M.C.Dili, that there was a scuffle between M.C/Dili and pwl before they gained entrance into the apartment of pw1, that pwl, M.C. Dili and 1st defendant had all driven to Akinpelu where they picked 3rd defendant before going to Shasha airforce base where pwl was allegedly maltreated. The question before the court is whether pwl went willingly to the airforce or was forced, kidnapped or falsely imprisoned by the 1st defendant, 2^nd defendant and 3^rd defendant. In support of its case, prosecution tendered three photographs otherwise known as EXHIBIT M3a, M3b and M3c showing bruises and marks all over the body of pwl, this court will not be able to evaluate exhibits M4, M5, M6a and M6b as they all border on the medical report, treatment and drugs received by pwl as prosecution failed to produce the doctor as a witness, although it shows that pwl visited the hospital for treatment. 1st and 3^rd defendant also corroborated pwl's testimony that they followed M.C.Dili to the airforce base from Akinpelu police station with pwl in the same car. In support of prosecution's case/ 3rd defendant under cross-examination testified that pwl was handcuffed to the seat of the car while going to the airforce base andthat pwl was in fact struggling to take control of the steering wheel of the car conveying them to the airforce base. Police failed to arraign the said M.C.Diii as it is clear to the court that the charge of kidnap/unlawful imprisonment contrary to S.364(2) criminal code has not been established against the 3 defendants. From evidence before the court, it was M.C.Dili who beat up pwl, it was M.C.Dili who overpowered pwl, handcuffed him to the seat of the car and drove him to airforce base against the wish of pwl and thereby prevented him from having access to any person at the said time as the three defendants obviously cannot overpower pwl bearing in mind that pwl is well skilled in martial arts. I therefore hold that prosecution has not been able to establish the elements of kidnapping against the three defendants and I therefore find the 1st, 2nd and 3rd defendants not guilty of the charge of kidnapping contrary to S. 364 Criminal Code .

 

On the charge of Assault contrary to S.355 Criminal Code, prosecution must establish that the 3 defendants were responsible In law and in fact for the injury sustained by pwl with horsewhip and handcuffs, the court must be satisfied that the-cause of the injury on pwl was a direct action of the 3 defendants. From the evidence before the court, M.C.Dili had beaten up pwl in the presence of 1st and 3rd defendant M.C.Dili had also handcuffed pwl in the presence of 1st and 3^rd defendant. Pw2 had stated in his evidence in chief that M.C. Dili had come to pwl's apartment with the 1st defendant and that M.C. Dili had beaten up pwl while 1" defendant did nothing but merely stood there gazing, 3^rd defendant in support of prosecutions case also stated that herself, 1^st defendant and-M.C. Dili had taken pwl to the airforce base with pwl handcuffed to the seat of the car by M.C.Dili and that pw1was in tact struggling to take control of the steering wheel. As earlier stated the said M.C.Dili was not arraigned before this honourable court and from the above evidence, the 1st, 2nd and third defendant never assaulted pwl with horsewhip neither did they assault pw1 by handcuffing pwl. I therefore hold that prosecution has failed to prove mat the 3 defendants assaulted pwl and I hereby find the three defendants NOT GUILTY to the charge of assault contrary to S. 355 Criminal Code.

 

On the charge of conspiracy contrary to S.516 criminal code under the common law, conspiracy is described as an agreement do an unlawful act or a lawful act by an unlawful means                

 

NWOSU VS STATE 15 (NWLR) PRT 897 Pg 466 @ 486 para.D to E

 

It is trite law that for an offence of conspiracy to be established, there must exist a common criminal design or agreement by two or more persons to do or omit to do an act. To sustain a conviction of conspiracy, prosecution must be able to establish the following requirements:

 

1. There must be two or more persons.

 

2. They must form a common intention.

 

3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.

 

4. An offence must be committed in the process.

 

5. The offence must be of such nature that it's commission was a probable consequence of the prosecution of such purpose. See

AKINKUMI & ORS VS THE STATE (1987) 1 NSCC 305 (5)310

 

Clearly, there was an agreement between the 1st defendant, 3^rd defendant and M.C.Dili to take pwl to the airforce base away from the prying eyes of the public. The question is whether "the criminal design alleged ( kidnap and assault) is common to all the suspects"? NWOSU VS STATE (SUPRA) pages 486 paragraph F-H; it is then that conspiracy is established. From circumstantial evidence before the court, 1st and 3rd defendant colluded with the said M.C Dili to perpetrate'the offence of kidnapping and assault. It was 1st defendant who pointed out the house of pwl to M.C.Dili, 1st defendant was present in pwl apartment when M.C.Dili beat up pwl, after beating up PW1, M.C.Dili with 1^st defendant took pwl in a Toyota starlet car to Akinpelu where they met and picked up 3^rd defendant. Testimony of pw3 that the said M.C.Dili had harassed and intimidated the police at Akinpelu Police station before eventually driving off with pwl was not contradicted nor discredited under cross-examination. 3^rd Defendant on sighting pwl saw that pwl had been beaten up but nevertheless entered into the Toyota starlet car and drove away with 1st defendant, and defendant M.C.Dili and pwl while pwl was handcuffed to the seat of the car. It would therefore sound ridiculous that with the condition and manner in which pwl was conveyed to the airforce base with handcuffs, that they had actually gone to the airforce base to have a round table discussion which at the end of discussion they all hugged and embraced each other. A roundtable discussion connotes a consensual discussion amongst the parties involved and not a discussion with a foundation of beating and being handcuffs. Moreover, in support of the prosecution's case,

 

1^st defendant in her statement wrote in her handwriting that "..............when this boys started again, we now invite M.C Dili to advise with the consent of the old man........" :

 

2"° defendant in her statement wrote that ".........when tasked them why they took them to the airforce they said it was because they taught the man as (b) made it and they want to make him (they) to give them consent........";

 

3^rd defendant in her statement wrote “...........I was aware that he was beaten but I was not in support of the beating but I could not stop him, if we knew he was going to beat him, we would not report to him, we reported to the airforce police because they threatened that the Akinpelu Police Station are their neighbours and nothing can happen if we report them because they are their friends..."   

 

Pwl also testified that ".........I was handcuffed from my house, they carried me to Akinpelu police station..."

 

Although the offence of kidnapping has not been established against the 3 defendants, it is obvious that the 1st and 3rd defendants conspired with M.C.Dili to kidnap and assault pwl. Conviction for conspiracy does not become inappropriate simply because the substantive offence has not been successfully proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted or may have become impossible to commit.

 

BALOGUN VSJUK)F OGUN STATE (2002) 2SC (pt II) Pg.96 LAWSON VS THE STATE (1975) 4 SC 115

 

In a criminal case, the standard of proof is proof beyond reasonable doubt. A court in reaching its decision must consider aspects which are favourable and aspects which are not favourable in reaching its decision. It is the duty of the court to consider the totality of evidence before the court. It is after such duty that the court then comes to a conclusion as to whether or not the case was established beyond reasonable doubt. See ALONGE VS IGP (1959) NSCC 169 @ 170

 

From the above, no element of the 3 count charge has been proved against the 2nd defendant and I therefore discharge and acquit the 2^nd defendant accordingly. 

 

It is obvious that 1st and 3rd defendant invited M.C.Dili, conspired with M.C.Diii to kidnap and assault pwl as prosecution has satisfied the elements of conspiracy against the 1st and 3rd defendants and I therefore hold that the charge of conspiracy to kidnap and assault pw1 contrary to S.516 of the Criminal Code has been made out against the 1st and 3rd defendant, and I therefore find the 1st and 3rd defendants GUILTY  of Conspiracy as proffered in Count 1.

 

People vs Kehinde Folami

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA

BETWEEN                                                                                         SUIT NO ID/148C/2009

People of Lagos State                             …………                Prosecution

AND

Kehinde Folami                                         ………….               Defendant

JUDGMENT

The Defendant was arraigned before this Court on the 10^th of May 2010 on a single count charge of murder contrary to the provisions of section 319 (1) of the Criminal Code Law of Lagos State. The Defendant was alleged to have murdered one Wasiu Afolabi on the 24^th of May, 2008 at No 18, Oshewa Street, Ikorodu, Lagos State. The Defendant pleaded Not Guilty to the charge and the matter proceeded to trial. The Prosecution called seven witnesses and tendered exhibits admitted and marked as Exhibits PI to P7 while the Defendant testified and called three other witnesses in her defence and she tendered three exhibits admitted and marked as Exhibits Dl to D3.

The deceased was a six year old boy and the first prosecution witness was Mrs. Ganiyat Afolabi, the mother of the deceased, and she testified that the Defendant was a next door neighbor and that the house of the Defendant was separated from their house only by a wall fence and that the Defendant managed a shop built by the wall fence and within the Defendant's compound and that the Defendant sold different types of provisions including candles in the shop and also operated a pepper grinding machine in the shop. She said that on Saturday, the 23^rd of May, 2008, she grinded some pepper in the shop of die Defendant and which she used to make vegetable soup and that she and the deceased ate out of the food around 6.30pm and that she thereafter sent the deceased to die shop of die Defendant to collect candles because it was getting dark and there was power outage and that at the gate of their house, the deceased turned back to inform her that his father had returned and that she sent him back to collect the candles from die Defendant's shop. She testified that after some time, the deceased came back to say that the Defendant requested him to bring some of the vegetable soup for her and that sent him back to tell the Defendant that the vegetable soup was not much and to collect the candles and the deceased left to go back to the shop of the Defendant. She stated that the father of the deceased came into house and the time then was around 7pm and he put on the generator and she served his food and she informed him that she sent the deceased to die shop of the Defendant to collect candles.

The first prosecution witness testified that after about thirty minutes, the deceased had not and she set out to look for him and that she went into the  compound  of the Defendant and that by this time the Defendant had locked up the shop and the compound dark because of the power  outage and that she called out the name of the deceased but he did not answer and that she went into the residential apartment of the  Defendant in the compound and she kept calling out the name of the deceased but no answer and she did not see anyone in the apartment and on her way out of the apartment she saw the daughter of the Defendant in the compound and she inquired  if she had seen the deceased and the daughter answered in the negative. She stated that she went her own compound and she knocked on the doors of their tenants to look for the deceased  and all the tenants said they had not seen him and that everyone Joined her in the search  for the deceased and  they went back into the compound of the Defendant and searched everywhere  and from there they went into the streets  and many other people joined the search, including  the Defendant, and the search went on till late  into  the night  but did not find the deceased that day. She said the continued in the morning of the next day and many people engaged in prayers, both Christian and Muslims, and including the Defendant, but the deceased was still not found and that she remained in her house after the prayers with people counseling her on patience.

The first prosecution witness testified that around 2pm she heard a lot of commotion outside                   her house and that when she made to go out to see what was happening, the people with her prevented her from going and that her mother came in shortly thereafter she was still prevented from going outside. She stated that she learnt that the dead body of the deceased was found in a Maltina cooler around 2pm on that 24^th of May, 2008 and that she neither saw the cooler or the dead body of the deceased, the police asked for her and she was allowed to go out. She said that it was on the television program that she saw the cooler that the husband of the Defendant was not around when they began the search for the deceased on Saturday the 23^rd of May, 2008 but he returned and met them during the search and the husband was at home the next day when the corpse of the deceased was found. She stated that she had entered the compound of the several times and the shop of the Defendant was by the gate and next to the shop was a store which did not open to the outside and  this  was followed by another shop and that the deceased usually went into the compound and the apartment of the Defendant to play. She said that when she enquiries from her husband on what happened, he informed her that the corpse of the deceased was found in the store of the Defendant and that the body was moved from there by the police to the General Hospital, Ikeja. She stated that she volunteered a statement at the Police she did not write the statement herself but it was recorded by a policeman culled Segun.

Under cross-examination, the first prosecution witness stated that she volunteered her statement             at the Police Station in Yoruba and that it was interpreted into English by the police who recorded the statement and she reiterated that on the 23^rd of May, 2008 she sent the deceased to the shop of  the Defendant to buy candles and she told her husband when he inquired after the deceased that             she sent the deceased to buy candles from the Defendant and she said that it  was correct that her              husband was outside checking the street light after his return from work on the day. She started      that she was in the kitchen when she sent the deceased to buy the candles and it was correct that she could not sec into the compound of the Defendant from her kitchen to know who was   there that she did not sec the deceased when he entered into the compound of the Defendant but that was the only place he could have gone. She testified that it was correct that the Defendant's compound had a large space where small children including the deceased usually played and that this place was a bit far from the apartment  of the Defendant in the compound and that  she had been into the compound of the Defendant on a number of occasions. She stated that   the used to go and play in the compound of the Defendant and that the deceased son usually came back home by himself  playing in the compound of the Defendant and that it was incorrect that the deceased used to go and play elsewhere apart from the compound of the Defendant.                               

The first prosecution witness confirmed that she made a statement  at the Police Station and that it was recorded by one of the policemen and that it was read over to her and she confirm it to represent what she said before it was signed by the policeman but that she did not sign the statement and what she told the police in her statement was that when the deceased could not be  found she went to search for him around the area and not that she went to search for him in other places that he used to play. She stated that the shop of the Defendant was built against the wall fence and the store where the body of die deceased was found was next to the shop of the Defendant and there was another shop after the store and dint she was not aware if the store was usually unlocked and she said that the shops and store were far from the apartment of the Defendant and someone in the apartment would not know what was going on in the shops because of the distance. She testified that her family and the family of the Defendant were good neighbours and friends and that it was the husband of the Defendant that ferried the deceased to school and that it was correct that the Defendant was part of the search party looking for the deceased and that it was incorrect that the gate into the compound of the Defendant was always opened and that the gate was always closed. She stated that the shop of the Defendant faced the front of her compound and that one does not need to enter the compound to buy something from the shop and it is when there is no one in the shop that one would knock the gate for them to come out.

The first prosecution witness stated that it was correct that when they were searching for die deceased the Defendant said that she had sent him home immediately after buying the candles  and that she saw him enter into our compound and that it was also correct that the husband of the Defendant gave his car to the search party to take the photograph of the deceased to the television station the following day. She said that her husband was a driver and that when he returned from work on the 23^rd of May, 2008 die deceased came to inform her that his father was back and was repairing a light fitting in front of the house and that she did not know if her husband had had cause in the past to enter into the store of the Defendant where the body was found to assist the Defendant in repairing her pepper grinding machine. She stated that she heard that it was the Defendant that went to call people when she discovered the body of the deceased in her store and that the tenants of the Defendant were not home when she commenced the search for the deceased as they had left home since morning and they came back to meet them searching for him. She said that it was correct that the deceased was a very active child and would raise an alarm if he sighted danger but that she could not have heard him from her kitchen in her house if he had shouted that day because her kitchen was far from the compound of the Defendant and that she had never entered the store of the Defendant where the body of the deceased found. The statement made by the witness to the Police was tendered through her as Exhibit Dl.

The second prosecution witness was Mr. Ahmed Afolabi, the father of the deceased, and he testified that he was a driver and that he returned home on the 24^th of May, 2008 around 6.30pm and noticed that somebody he had earlier engaged to fix the street light in front of his house did not do it properly and he went into the house to get an instrument to adjust it and that, he finished around 7pm. He said that he asked the where about of the deceased from the first prosecution witness and she said that she sent him to buy candles from the shop of the Defendant and that it was dark around this time and that when they did not see the deceased return they started searching for him: and that she saw die Defendant in front of her shop and that the Defendant said that the deceased had since left her shop. He said dial the deceased did not go anywhere else to play except the compound of the Defendant and that he recalled that when he was repairing the street light he saw die deceased pass to go into the compound of die Defendant and that many people joined them in searching for die deceased. He stated that he ate eba and vegetable soup when he returned from work on that day and dial die Defendant had a shop in front of her compound where she sold different provisions including candles, matches, soap and soft drinks and she also operated a pepper grinding machine in the shop and that his family and the family of the Defendant had a very good relationship. He stated that on the 24^th of May, 2008 they searched for the deceased everywhere in Ills compound and in the compound of the Defendant but not in die shops and store and that they searched for him till morning and that on die next day he went to the television to make an announcement of the missing child and that the husband of the Defendant gave them his car to go to the television station.

The second prosecution witness testified that when he came back from the television station around 1pm, he dropped the car of die Defendant's husband and the deceased was yet to be found and he decided to leave for Ikirun to seek spiritual help and it was at lbadan, on his way to Ikirun, that he received a telephone call from one of his friends that the body of the deceased had been found and that he returned home immediately and met many people in their area including the Police and he was led into die store of the Defendant where they said the corpse was found and he saw the dead body of the deceased in a cooler. He said that he had been into the compound of the Defendant on a number of occasions before the incident but he had never been into the store of the Defendant and that the store was in between two shops and that while the doors of the shops face out to the compound, the door of the store does not open out to the compound and that the store had an iron door and a four step stairs led to the iron door. He stated that he entered the store of the Defendant on the 25^th of May, 2008 to view where the deceased was found and he noticed a big freezer, some air conditioners, pumping machine, cartoons and a big cooler inside the store and he saw the deceased in a small Hi-Malt cooler in the store; the cooler was tendered and admitted as Exhibit P1. He stated that the deceased was two days short of his sixth birthday and slender and that he met policemen from Owutu Police Station when he returned from Ibadan on the 25^th of May, 2008 but that he did not see the Defendant and he was informed that the Defendant and her children had been taken away from the scene and that later in the night of that day, policemen came from State Criminal Investigation Department, Panti to investigate the matter and they looked around the area, at the store and did some forensics and the body of the deceased was taken to the General Hospital for autopsy and that it was thereafter mat the body was released to them for burial.

The second prosecution witness gave evidence that he had been married to the first prosecution witness since year 2000 and that they had lived together since then and that they loved themselves and had an extremely good and cordial relationship and had been blessed by God and mat the deceased was the only child they had. He stated that the Defendant had only one tenant in her compound and that me tenant was not home when they commenced searching for the deceased on the 24^th of May, 2008 but that the children of the tenant were m and that the doors of the tenant's apartment were opened and that the tenant arrived to meet them in the middle of the search. He said that he made statements both at Owutu Police Station and at the Panti Police Station and that he volunteered his statement in Yoruba but it was recorded in English by one Inspector Segun Adesola and that the first prosecution witness was a peaceful person and they had no quarrel with anyone in the area.

Under cross-examination, the second prosecution witness stated that it was Oshogbo he left for on the 25^th of May, 2008 and not Ikirun and that he left around after 1pm and that he got back to Ikorodu around 5.30pm after receiving the telephone call find that on the 24^th of May, 2008, he returned home from work around 5.30pm and that he spent around thirty minutes to fix the street light in front of his house and it was not dark at this time and that it was incorrect that he switched on the generator immediately after fixing the street light: and that he did not recall switching the generator on at all that day. He stated mat the compound of the Defendant had space where the children of the Defendant played basketball and that it was incorrect that children in the neighbourhood joined in playing the basketball but he cannot say how often the children played basketball. He said that he had never entered into the store of the Defendant to effect repairs on her grinding machine and that the Defendant had only call him once to assist in changing me fan-belt of the grinding machine and that he did this outside where the machine was used to grind pepper. He stated that he did not say in his statement to the Police that he put on the generator on that day and the statement was tendered through him and it was admitted as Exhibit D2. He stated that they did not report to the Police on the 24^th of May, 2008 when the deceased went missing and neither did he go to the Police on the 25^th of May, 2008 and that he went to television station to make an announcement on the 25^th of May, 2008.

The witness stated that he ate around 7pm on the 24^th of May, 2008 and that it was dark at that time and that he switched on the generator before he ate and that he asked for the deceased and that the first prosecution witness told him she sent the boy to buy candles from the shop of the Defendant and that he saw the deceased pass while he was fixing the street light but could not say if the first prosecution witness saw the deceased thereafter. He stated that he had a very cordial relationship with the family of the Defendant and could not say why the Defendant would kill the deceased but that the corpse of the deceased was found in the store of the Defendant and that it was incorrect that the deceased had spent his holidays with the family of the Defendant and that it was only during one Eid celebration that the deceased went with the family of the Defendant to Ojota and he returned the following day. He said that it was around 12 midnight on the 25^th of May, 2008 that the Police came and moved the body of the deceased and the cooler and that it was incorrect that all the customers of the Defendant and her tenant had access to the shop of the Defendant as they all stop at the gate of the shop and that he had entered the shop of the Defendant prior to the incident to buy something. He said that die cooler wherein the deceased was found was not in the shop of the Defendant but in the store behind the shop and he reiterated what he saw in the store on the 25^th of May, 2008 when he entered to sec the dead body of the deceased and he stated that he did not assist the Defendant in repairing their pumping machine but he only introduced the person who repaired his own pumping machine to the Defendant and that he did  not know the other persons who had access to the store of the Defendant.

The third prosecution witness was a Mrs. Funmilayo Mapaderun and she stated that she was the tenant in the compound of the Defendant at the times material to this case and that on the 24^th of

May, 2008 she left the house around 11.30am to attend a function in Mushin and she returned around 9.30pm to learn that there was a search for the deceased and that she joined in the search and she searched around her apartment but did not see the deceased. She said she had three children aged three, six and nine as at 2008 and that she left them at home that day and that by the time she returned that night the children were in her shop, not far from the house and that they searched for the deceased almost all night but could not find him and it was not until the afternoon of the following day that the dead body of the deceased was found in a cooler in a store within the compound of the Defendant. She said she was in her apartment when the deceased was found and an alarm was raised and that she came out and saw that the cooler had been carried out from inside the store and she saw the dead body of the deceased inside the cooler and that she had never before that day entered into the store the witness identified Exhibit P1 as the cooler.

The witness stated that compound of the Defendant consisted of one shop and two stores on one side and two flats on the other side and that her family lived in the back flat and the Defendant used the shop and that her family was the only tenant in the compound and that her husband had travelled to Oshogbo in the early hours of die 24^th of May, 2.008 and that her family moved out of the compound when the incident of the death of the deceased happened. She testified that her children used to play in the compound and they knew the deceased very well as they played together in the compound and her children informed her that on the 24^th of May, 2008, they all played together with the deceased until evening when they left for her shop. She stated that they never had any incidence of house breaking throughout their stay in the compound of the Defendant and that the compound had a gate which was always shut and that the Defendant sold provisions and soft drinks as well as ground pepper in the shop and she could not say if the Defendant sold candles as she had no reason to buy candles from the Defendant. She said that neither herself nor the Defendant had a house maid at the time of the incident and that the store was beside the shop and they were built together.

Under cross-examination, the third prosecution witness testified that she was not around when the whole incident leading up to the search for the deceased happened and she only returned to meet the search and that her family was a tenant of the Defendant for four years and that it was not only her family and the family of the Defendant that had right of ingress into the compound as they had people who visited. She stated that the door of the store where the deceased was found was always shut but she could not say if it was locked with a key and that there was no padlock on the door and mat she was not always at home when her children played with the deceased as she usually went to her shop and it was only on Sundays that she was at home. She stated that when she returned on the day of the incident she met people outside the compound and not within it and that she searched for the deceased within her flat and that it was possible that the people had searched the compound before she returned. She said that when she saw the dead body of the deceased there was something like foam and regurgitated food coming out of his mouth and it looked like vegetable soup and that she saw the cooler and die body outside and she did not know who brought the cooler out of the store. She said that she recalled that she had occasions to buy candles from the Defendant a long time ago before they bought a generator and that the first prosecution witness and the Defendant were close and were good friends and they related well and entered into each other's houses freely and they played together and she could not recall that there was any quarrel between them. She stated that the deceased was usually in their compound to play with her children and with the four children of the Defendant and that the husband of the Defendant ferried all the children, including the deceased, to school in his car.

Under re-examination, the witness stated that the gate of the compound was usually just shut whenever the Defendant was in her shop and visitors who came to the compound just push the gate open to gain access, but if the Defendant was not in the shop, the Defendant used a metal to lock the gate and visitors then had to knock for somebody to open the gate. She stated that the shop of the Defendant was by the gate and she saw everybody coming into the house and that she never entered the store and cannot say if it had a lock or not but the door of the store was visible on tier way in and out of the compound and she never saw a padlock on it and she did not recall seeing her children going into the store to play.

The fourth prosecution witness was a Mr. Ajayt Kamoru Olabanji and he stated that he knew the Defendant and that they lived on the same street in Ikorodu and that on the 24^th of May, 2008 a neighbor informed him around 11pm that the deceased was missing and was being searched for and that he went to the house of the second prosecution witness where he met many people and he joined in the search. He stated that the search continued as early as 6am the following day and that they searched everywhere and that while die search was going on, he went back home to get an equipment to assist the Baale of the area fix a fault in his pumping machine and that the Defendant came to meet him at home in the company other last child and she was holding a keg of petrol and me Defendant stated that she had something to discuss with him. He said. That the Defendant informed him that when she left the search party for the deceased and went back to her house, she went to her store to keep the keg of petrol she was caring in her hand and that as she opened she had in the store she found the deceased in the cooler. He stated that the husband of the Defendant had gone out by this time and the husband had informed him that he would be back around 4pm and that he immediately called the husband of the Defendant to relate what the Defendant had  just told him and that the Defendant spoke to her husband and related the same story to him and that husband stated that he was in Victoria Island at the time and pleaded with him to go and see if the deceased was still alive and to get the deceased to a hospital tor treatment and he should not spare any expense in getting the deceased treated. He testified that he left for the house of the Baale inform him of the development, and that they convened a meeting of the elders of the area to discuss the matter and the Defendant came to the meeting and related the story to the elder, and the elders called the youths in the area to go to the store in the compound of the Defendant to confirm the story of the Defendant and the Defendant was directed to stay in house of the elder where the meeting was held. He stated that policemen later came to scene and that he with the policemen to the house of the Defendant and they met the youths there threatening to burn down the house of the Defendant but that lie cautioned them against it and that he saw the body of the deceased in a cooler and he was dead at the time and that the cooler was in the store at the time, be saw it. He identified Exhibit PI as the cooler.

Under  cross-examination, the witness stated that his house was not far from the house of the Defendant and that he had been living in the area since 1996, long before the Defendant and her family moved to the area and that the Defendant came to relate her discovery to him on me 25^th of May 2008 for advice as he was an elder in the area. He stated that on the day they were searching for the deceased nobody stated that the deceased was last seen with the Defendant and that he knew the families of the Defendant and of the deceased very well and had been to their respective houses on a number of occasions and that both their houses had gates and that the Defendant had no gateman in her house and that there was no organised security in the area at the time. He stated that he had enter the house of the Defendant at the request of her husband to assist in the repair of electrical faults and with NEPA and that the family of the deceased and of the Defendant were very cordial and that the deceased was always in the compound of the Defendant and that the husband of the Defendant conveyed his children, the deceased and the children of the tenant to school He stated that he never heard of any disagreement between the two families and that the Defendant was badly shaken and was beside herself with fear and panic when she came to re.ate her findings to him on the 25^th of May, 2008 and that when he saw the deceased in the cooler there was foam on his mouth and some stains on his chest.

The fifth prosecution witness was Police Sergeant Oluwasegun Idowu Adesola who stated that he was attached to the State Crime Investigation Department at the times material to this matter and he testified that on the 24^th of May, 2008, a case of murder was reported at the Owutu police station and was transferred to the State Crime Investigation Department, Panti on the same day and he was designated at the Investigating Police Officer. He stated that on going through the case file, he noticed that statements had already been obtained from some people and he took fresh statements from the people and he visited the scene of the crime in the company of the Office in Charge of Homicide, Chief Superintendent of Police Ebere and photographs were taken at the scene of the crime and they recovered a Maldina cooler as an exhibit and these were brought back to their office at Panti and registered as exhibits. He stated that the Defendant and the complainants were taken before die Officer in Charge of finger prints at Panti to have their finger prints taken and witnesses were invited, including one of die ciders in die community, and they all made statements and coroner forms were served on the Radiologists and an autopsy was performed on body of die deceased by the Chief Pathologist of Lagos State and die reports of the finger prints and of the autopsy were put in the case file. He testified that he took the Defendant and the complainants to the Deputy Commissioner of police at the State Crime Investigation Department for a personal interview and the Defendant was thereafter charged to court.

The witness testified that they recovered the body of the deceased at the scene of the crime and that he noticed that there were two houses side by side separated by a wall fence and that the house of the Defendant was one of the houses and he also notice that there was a shop within the compound of the Defendant at the front and a store beside the shop and the Defendant took the Police to the store where the cooler was found the witness identified Exhibit P1 as the cooler. He stated that when the cooler was opened they saw die dead body of deceased, a small boy about six years old, and they recovered the body and cooler from die scene of die crime and body of the deceased was taken to the mortuary of the General Hospital in Ikorodu and he said that he recorded two statements from the Defendant and these were tendered and admitted as Exhibits P3 and P4. The witness also tendered die photographs taken at the scene of the crime and the negatives as well as the autopsy report from the General Hospital as Exhibits P5 and P6. He stated that at the conclusion of the investigation, he found that the Defendant was present at the dine of the incident and she was the last person to see the deceased and she was the same person that discovered the dead body of the deceased twenty four hours Later.

Under cross examination, die witness slated that they visited the scene of the crime the same day the case was transferred from Owutu Police Station to the State Crime Investigation Department but he could not remember the date exactly and dint one Inspector Sanni, now a senior police officer, went with them to the crime scene. He said that it was on the same day that the first prosecution witness and the Defendant were brought to the State Crime Investigation department

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.