- CL|Statutory Interpretation|Amendment to Pleadings|Strike-Out
IN THE COURT OF APPEAL
CHIEF ONUMAH NKPA
1. CHAMPION NEWSPAPERS LIMITED
2. MR EMMANUEL EDOM
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Lagos State delivered by BOLA OKIKIOLU-IGHILE J. on the 28th day of March 2012 wherein the preliminary objection raised by the Defendants in the suit was upheld.
The Appellant had as Claimant in the lower Court filed his writ of summons dated 4-6-2010 together with the statement of claim, list of witnesses, witness statements on oath and list of documents to be relied on against the Defendants (now Respondents)
(See pages 1 to 25 of the Records)
The Respondents reacted by filing a memorandum of appearance followed with their joint statement of defence, list of witnesses and witness statement on oath, dated 14-7-2010 wherein they denied the claims of the Appellant and set-up a defence of qualified privilege.
(see page 26 to 32 of the Record).
The Appellant then responded by filing a reply to the statement of defence dated 16-8-2010 and supported same with a written statement on oath deposed to by the Appellant together with a list of documents and further documents in support.
(See pages 39 to 52 of the Record)
Upon being served with the said reply, the Respondents then filed a notice of preliminary objection dated 16-8-2010 wherein they sought the order of the lower Court to strike out the Appellants reply dated 16-8-2010.
The grounds for the preliminary objection are that:-
(1) Upon a proper construction of the provision of Order 18 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004, the said reply is incompetent.
(2) The Claimant in paragraph 5 of the said reply has introduced new sets of facts not originally pleaded in his statement of claim.
(3) Upon proper construction of Order 24 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 the said reply containing written statement on oath, further list of documents is grossly misconceived and amounts to an amendment of pleadings.
The parties filed, served and subsequently adopted their written addresses and in a Ruling delivered on 28-3-2012, the lower Court refuse grounds 1 and 2 of the objection but upheld ground 3 by holding as follows:-
"There is no provision whatsoever in the Rules, which state that the Reply shall be accompanied by additional frontloaded processes. In view of that, I hold that the additional process filed by the Claimant in support of his Reply to the Defendant??s statement of defence, is incompetent and unacceptable.
In conclusion, the preliminary objection succeeds to the extent that the written statement on oath, further list of documents, the documents attached as exhibits are hereby struck out.
In totality the preliminary objection upon the 1st and 2nd grounds are hereby refused and dismissed.
The Appellant was not satisfied with the part of the said Ruling upholding grounds 3 of the preliminary objection by striking out the written statement on oath and further list of documents attached to the Appellantý??s Reply to the statement of defence hence he filed a notice of appeal on the 4-4-2012 and it contains one ground of appeal.
Briefs of arguments were subsequently filed and served by the parties who also adopted same respectively at the hearing of this appeal on the 25-2-2016.
In the Appellant'??s brief of argument dated and filed on 11-7-2012 a sole issue was
formulated for determination as follows:-
ýWhether the learned Judge of the Court below was right in holding that the additional processes filed by the Appellant in his Reply to the Respondentsý statement of defence is not permitted by the Rules of the Lagos State High Court and therefore incompetence.ý
In the Respondentsý brief of argument dated 8-8-2012 and filed on 9-8-2012 the sole issue formulated determination is:-
ýWhether the Honourable Judge of the Court below was not right in holding that the High Court of Lagos State Civil Rules 2004 had no provision whatsoever for the Reply to a statement of defence to be accompanied by front loaded processes.ý
The sole issues as raised by the parties are no doubt in tandem. I will however adopt that of the Appellant in the consideration of the Appeal.
Arguing on the said sole issue as raised Learned Counsel for the Appellant submitted that in arriving at the decision to strike out the Appellantýs written statement on oath, further list of documents and documents attached as exhibits, the Learned Trial Judge failed to properly advert her mind to the provisions of Order 3, Rule 2, Order 1 and 2, Order 18 Rules 1 and 2 and Order 32 Rule 1(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 which she is bound to so advert.
He noted that while Order 3 Rule 2(1) made provision for documents that must be filed alongside a statement of claim, Order 17 Rule 1 made provision on the same set of documents as it concerns statement of defence whilst Order 15 Rules 1 (3) and Order 18 Rules 1 and 2 deal with reply to statement of defence and counter claim.
Also Order 15 Rules 1(1) (2) and (3) which deals with pleadings refers to pleading to include the following:-
(1) Statement of claim
(2) Statement of Defence
(3) Reply to Statement of Defence
(4) Counterclaim and
(5) Reply to counterclaim.
?It was then submitted that in order to properly determine whether the Rules of the Lagos State High Court permits the filing of written statement on oath, further list of documents and exhibits together with a reply to statement of defence; Order 3 Rule 2(1) must be read together with other relevant Orders including Order 15 Rule 1(1), (2) and (3); Order 17
Rule 1; Order 18 Rules 1 and 2 and Order 32 Rule 1(3).
Learned Counsel added that the Ruling of the lower Court that the additional processes filed by the Appellant in his reply to the statement of defence are not permitted by the Rules of the High Court of Lagos State was erroneous because she relied only on Order 3 Rule 2 (1) and ignored other Rules which would have guided her in arriving at an appropriate decision. Therefore to properly determine the issue,
Order 3 Rule 2 (1) must be read together with Order 15 Rule 1(3); Order 17 Rule 1 Order 18 Rules 1 and 2 and Order 32 Rule 1(3).
He further contended that though Order 3 Rule 2 (1) and Order 17 Rule 1 made provision for frontloading alongside the statement of claim and statement of defence. A combined reading of Order 15 Rule 1(3) and Order 32 Rule 1(3) will show that though written statement on oath and documents were not expressly ordered to be filed alongside a reply, it is however implied by virtue of Order 32 Rule 1(3).
Therefore, the step taken by the Appellant in filing a reply to the Respondentsý statement of defence was in keeping with the provisions of the Rules
of the Lagos State High Court particularly as provided in Order 15 Rule 17(2) in actions for libel or slander.
It was further emphasized by Learned Counsel that going by the provisions of Order 32 Rule 1(3) which provides that evidence in chief shall only be limited to confirming written depositions or other exhibits it follows that every averment made in pleadings must of necessity be supported not only by written depositions but also by the documentary evidence to be relied upon during trial.
Therefore, the exclusion of oral examination during the examination chief of a witness and the limitation of same to confirming his written deposition and tendering in evidence all disputed documents or other exhibits; by Order 32 Rule 1(3) makes it mandatory that the documents must be filed alongside all pleadings including Reply to the statement of defence.
Furthermore, that by specifying that all disputed documents or other exhibits must be referred to in the deposition accompanying the pleading, Order 32 Rule 1(3) has made the inclusion of written deposition a necessary part of pleadings a mandatory issue.
Also relying on a number of authorities, it was submitted that pleadings is not evidence and any averment therein not supported by evidence must be considered abandoned, consequently, since a reply to a statement of defence affords a Claimant the opportunity to admit or traverse any new issue or facts raised by a Defendant, it follows that any such averment in a reply to a statement of defence must be backed by a written deposition and any document to be relied upon during trial of the suit otherwise, the reply would be lacking in evidence and liable to be struck out as having been abandoned.
This Court was then urged to allow the Appeal.
In their own sole issue for determination, Learned Counsel for the Respondents submitted that the High Court of Lagos State (Civil Procedure) Rules 2004 specified the steps every litigant should take in the prosecution of a claim or defence of same and the said Rules of Court are meant to be obeyed. He cited WILLIAMS v. HOPE RISING SOCIETY (1982) NSCC 36; NWANKWO v. YARý??ADUA (2010) 3-5 SC (PT 111) Page 1; OWNERS OF M.V. ARABELLA VS NIGERIA AGRIC INSURANCE CORP. (2008) 4-5 SC 189.
Learned Counsel further referred to Order 3 Rule
2; Order 17 Rule 1 and Order 18 Rule 1 of the High Court of Lagos State Rules to submit that there is no intention for litigants to frontload documents when filing a reply and if it were to be so it would have been so stated in the Rules.
He added that the specific inclusion of the frontloading in the filing of statement of claim and statement of defence and in amendments means the exclusion of Order 18 Rule 1.
It was also submitted that in action for libel or slander Order 15 Rule 17 (2) provides for what the Defendant and the Claimant shall plead in their statement of defence and reply respectively and did not state anywhere that a reply shall be accompanied by a witness statement on oath, list of witnesses and list of documents as is the case in Order 3 Rule 2 and Order 17 Rule 1.
On the principle of law that words in a statute must be given their correct and grammatical interpretation he cited the following cases. A.G. ANAMBRA STATE v. A.G FEDERATION (2007) 5-6 SC 192; TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 9 SC 1 OR (1989) 4 NWLR (PT 117) 517; LAWAL v. G.B. OLLIVANT (1972) 3 SC (REPRINT) 120; IFEZUE v. MBADUGHA (1984) 1 SCNLR
427; IBWA v. IMANO (NIG.) LTD (1988) 7 SC (PT 111) 114 and UWAZURIKE v. A.G FEDERATION (2007) 2 SC 169.
He concluded by contending that the Ruling of the lower Court was correct because the Rules did not provide for filing of documents and witness depositions along with a reply.
This Court was therefore urged to dismiss the appeal.
?The issue in contention here is quite narrow. It is whether the High Court of Lagos State (Civil Procedure) Rules 2004 made provision for a Claimant to file another witness statement on oath list of witnesses and list of documents along with his reply to a statement of defence. The stance of the lower Court is that the rules did not allow such processes in a reply hence the ones accompanying the Appellantýs Reply to the Respondentsý statement of defence were struck out while the reply itself remained.
For the Appellant, though it was not so expressly provided for in the High Court of Lagos State Rules, it can however be implied by virtue of a combined reading of Order 3 Rule (2) (1) Order 15 Rule 1(1) (2) and (3); Order 17 Rule 1; Order 18 Rules 1 and 2 and Order 32 Rule 1(3).
For the Respondents, the High Court of Lagos State (Civil Procedure) Rules 2004 specifics the steps every litigant will follow in the prosecution of a claim or defence and such Rules of Court must be obeyed and which Rules did not provide for a reply to be accompanied with witness statement on oath, list of witnesses and list of documents as canvassed by Appellant.
For purpose of clarity, I herein below set out the relevant Rules referred to by the parties.
Order 3 Rule 2 (1).
ýAll Civil Proceedings commenced by writ of summons shall be accompanied by;
?(a) Statement of claim.
(b) List witnesses to be called at the trial
(c) Written statements on oath of the witnesses, and
(d) Copies of every document to be relied on at the trial.ý
Order 15 Rule 1 (1):
ýA statement of claim shall include the relief or remedy to which a Claimant claims to be entitled.ý
Sub Rule (2):
ýA Defendant shall file his statement of defence, set off or counter-claim, if any not later than 42 days after service on him of the Claimantýs originating process and accompanying documents. A counterclaim
shall have the same effect as a cross action, so as to enable the Court pronounce a final judgment in the same proceedings. A set off must be specifically pleaded.
?Sub Rule (3):
ýA Claimant shall within 14 days of service of the statement of defence and counterclaim if any, file his reply, if any to such defence or counterclaim.ý
Order 17 Rule 1:
ýThe statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statement on oath.
Order 18 Rule 1:
FILING OF REPLY
Where the Claimant desires to make a reply, he shall file it within 14 days from the service of the defence.ý
ýWhere a counterclaim is pleaded a reply thereto is called counterclaim and shall be subjected to the Rules applicable to defences.ý
Order 32 Rule 1 (3):
ýThe oral examination of a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.
Order 15 Rule 17 (2):
"Wherein an action for libel or slander, the Defendant pleads that any of the words or matter complained of are fair comment on a matter of public interest or were published upon privilege occasion, the Claimant shall if he intends to allege that the Defendant was actuated by malice, deliver a reply giving particulars of the facts and matters from which malice is to be inferred."
The wordings of the above set out Rules are clear and unambiguous as to their true intent and purpose. Order 3 Rule 2 state unequivocally what shall accompany a statement of claim while Order 17 Rule 1 also state what are to accompany a statement of defence.
Order 18 Rule 1 and 2 which deals with filing of reply to a statement of defence or counterclaim did not go further than requiring a Claimant who wants to file a reply to do so within 14 days from the service of the defence.
While Orders 3 and 17 specifically provided for what processes shall accompany a statement of claim or defence respectively, Order 18, which deals with reply to statement of defence did not require that any process or document shall accompany such reply.
What is more, Order 15 Rule 17 (2) provided that if in an action for libel or slander a Defendant pleads fair comment of qualified privilege, Claimant who wants to show that the Defendant was activated by express malice shall file a reply giving particulars of the facts and matters from which such malice is to be inferred.
The said Order 15 Rule 17 (2) did not provide for filing of any further document, list of witnesses or witness statements on oath I am therefore of the mind that if such were intended, it would have been expressly provided for as was done in Orders 3 and 17 of the said Rules of the Lagos State High Court 2004.
Where the words in a statute are clear and unambiguous, they ought to be accorded their simple grammatical interpretation. See ADEWUMI v. A.G. EKITI STATE (2002) 2 NWLR (PT 751) 494; FAWEHIMI v. I.G.P (2000) 7 NWLR (PT 665)481; IFEZIME v. MGBADUGHA (1984) 1 SCNLR 427. In AG ANAMBRA STATE v. AG FEDERATION Supra also referred to by the Respondents'?? counsel, the Supreme Court per MUKTAR J.S.C. (as she then was) held inter alia at page 219 to 220 and 221 as follows:-
"This Court has held over and over again that law should be given their correct and grammatical interpretation. The provision of law should be viewed in its simple form and interpreted within its ambit, and no extraneous matters should be introduced to it to give it a meaning different from what the legislator intended it to be. If such happens, then the law will be wrongly construed, and its purpose will fall outside the intendment of the legislator. I have produced the various definitions of the word "??dispute"?? above. The authors of Halsbury Statutes of England third Edition volume 32 encapsulated the principles of the consideration of words in statutes on pages 364 and 365 thus:-
"The golden rule is that the words of an Act are prima facie to be given their ordinary and natural meaning, or, as is sometimes said, their popular meaning. See St John, HAmstood, Vestry v. Cotton (1886) 12 App. Cas 1 page 6 per Lord Halsbury, L.C Wokes v. Don Castar Amalpamated Collieries Ltd (1940) A.C 1014 (1940) 3 All ER 549 at page 1022 and pages 553 respectively, per Viscount Simon, L.G. The rule has been in existence for many years and the classical statement of it is contained in
the judgment of Wensley Dale in Grey v. Pearson (1857), where he said;
"??In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency but no further."
"??If the words of an Act are clear and explicit, they themselves are the best evidence of the intention of the legislature and no reference may be made to other sources of information."
The High Court of Lagos State (Civil Procedure) Rules 2004 as per the relevant Orders and Rules referred to by the parties did not create any ambiguity in their interpretation and it is not for this Court to embark on a voyage of exploration with the aim of fixing in implied provisions in the Rules as intended by the Appellant who though agrees that there is no express provision in the Rules that supports the requirement that witnesses statement of oath and list of documents shall accompany a reply but insists that such could be the case by a combined reading of the various Orders aforementioned.
?It is trite law that a reply is the Plaintiff's answer to the defence put up by a Defendant. But where the Plaintiff merely wishes to deny allegations in the defence, no reply is needed and if no reply is served, there is an implied joinder of issues on the defence. See OLUBODUN v. LAWAL (2008) 17 NWLR (PT 115) 1; ABOWABA v. ADESHINA 12 WACA 18. In AGUNDO v. GBERBO (1999) 9 NWLR (PT 617) 71; (1999) LPERLR (6644) CA this Court held per CHUKWUMA ENEH J.C.A. (as he was then) at page 56-57 that:-
"??It is unnecessary for a Plaintiff to file a reply if his only intention is to deny the allegations that the Defendant may have made in his statement of defence. However, a reply may be filed to show facts which will make the defence untenable for example where the defence has pleaded any statute of limitations the reply may contain facts negating the application of that defence.
The Plaintiff cannot in his reply raise a new issue which was not raised in his statement of claim."?
Furthermore in ADENIJI v. FETUGA
(1990) 5 WLR (PT 150 375 this Court per AKANBI J.C.A. (as he then was) held thus:-
ýA reply is the Plaintiffýs answer or response to any issue raised by the Defendant in his defence and which the Plaintiff seeks to challenge, deny or admit or object to either or ground of law or a mis-statement of the cause of action and it is not permissible in a reply to the defence to raise a new cause of action not set out in the writ of summons, for a Plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim.ý
See also ZENECA LTD v. JACAL PHARM-LTD (2007) LPELR (8384) CA.
A much stronger decision on the limited nature of Plaintiffýs reply to a defence is in ACHIKE v. OSAKWE (2000) 2 NWLR (PT 646) 631, where this Court per FABIYI J.C.A. (as he then was) held that where the Plaintiffs joined issues with the Defendants on their statement of defence, a reply is unnecessary. A reply should not just contain anything. A reply should not take the place of amendment of the statement of claim. For such will over-reach the Defendant.
In the instant case, the act of Appellant in accompanying his reply with a witness statement of oath, list of witnesses and list of documents smacks of nothing but attempt to amend his statement of claim and
this cannot be done through the back door or under the guise that it is impliedly allowed or permitted by a combined reading of the Rules.
It will definitely amount to under cutting or over-reaching the Respondents if such approach through the back door is allowed. See ACHIKE v. OSAKWE Supra.
I must add here that rather than adopt a complex or complicated method of bringing in additional witnesses or document the Appellant has a widely opened window in Order 24 Rule 3 of the Lagos State High Court Rules 2004 to bring them in by way of amendment. The said Order 24 Rule 3 provides that:-
"??Where any originating process and or a pleading is to be amended a list of any additional witness to be called together with his written statement on oath and a copy of any document to be relied upon consequent on such amendment shall be filed with the application."
Having earlier found that the High Court of Lagos State (Civil Procedure)
Rules 2004 did not provide for a Claimant'??s reply to be accompanied by written statement of oath and list of witnesses and documents and going by the authorities earlier cited on the limited nature of a reply. I hold as very sound and correct, the Ruling of the lower Court to the effect that:-
"There is no provision whatsoever in the Rules, which state that Reply shall be accompanied by additional front loaded processes."?ý
Consequently this appeal is found to be lacking in merit and it is accordingly dismissed.
The Ruling of the High Court of Lagos State delivered by BOLA OKIKIOLU-IGHILE J. on the 26th day of March 2012 is hereby affirmed.
Fifty thousand Naira (N50, 000) cost is awarded against the Appellant.
SIDI DAUDA BAGE, J.C.A. :
I have read, before now, the judgment delivered by my learned brother Samuel Chukwudumebi Oseji, J.C.A. I must say that I agree with the opinion and conclusions arrived at. My learned brother has indeed dealt with the issues in an in-depth manner.
I have nothing extra to add but to subscribe to the consequential order in the
leading judgment inclusive of the one of the costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.:
I was privilege to read before now the judgment written by my learned brother, OSEJI, J.C.A., and I agree with him that the appeal ought to fail. I have nothing more, which I can usefully add. The appeal is against the judgment of the lower Court which held that there is no provision whatsoever in the Civil Procedure Rules of the High Court of Lagos State, which state that the Reply filed subsequent to a statement of Defence shall be accompanied by additional frontloaded process and the appellant has not advanced any convincing argument for this Court to hold to the contrary. You cannot impute what is not in the rule. To this extent, I join my Lord in affirming the decision of the lower Court and dismiss the appeal. I abide by the consequential order(s) made in the leading judgment.
K.K Udeochu For Appellant
Chief A.G. Uwazurike with him, D.O. Alabi For Respondent