Susainah (Trawling Vessel) & Ors. V. Mr. Segun Abogun (2006)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
This is an appeal against the judgment of Ukeje, Chief Judge of the Federal High Court sitting at Lagos in suit No. FHC/L/CS/1237/96 which was delivered on the 26th day of March 2004. The Respondent herein was the Plaintiff at the lower Court. The brief facts of the Respondent’s case as set out in his further amended statement of claim of 30th November, 2000 which is at page 138-141 of the record is that he and his son, Mr. Sola Abogun were out at sea fishing at night in their 40 H.P. Yamaha engine powered wooden boat at the coast of Ilepete town in Ilaje Ese-Odo Local Government Area of Ondo State. They had with them two types of fishing nets equipped with fishing gears such as floaters lead and paddles. It is the Respondents further statement that he had four hurricane lanterns hung on these giant floaters deposited at intervals along the stretch of his nets so that other fishermen and trawlers could identify their location at sea from a safe distance. Suddenly, at about 5.00 a.m they saw the light of trawling vessel at a distance. At this stage the Respondent instructed his son to lift up one of the lanterns to warn the trawler of their presence. In order to compliment the effort of his son, the Respondent also flashed the torchlight he was holding in the direction of the trawler to signify their presence. All these precautionary measures did not arrest the movement of the trawler towards them. As the trawler was dangerously close, the Respondent held his son by the hand and they both jumped into the water.
The trawler hit the boat and wrecked it. After this the trawler maintained its course and did not stop to rescue them. The Respondent floated by hanging onto the fuel tank of the Yamaha engine while his son held onto a piece of wood. They were both rescued by one Afork, also a fisherman who was operating his engine boat within the vicinity and was attracted to the scene by the noise caused as a result of the impact and the light of the Respondents torchlight.
It is the further statement of the Respondent that he narrated his ordeal to their rescuer and identified the 1st Appellant which was just about one nautical mile from the place of the incident. Mr. Afok then took the Respondent and his son in his boat and they pursued the first Appellant and caught up with it, the crews of the 1st Appellant including the 2nd Defendant reacted indignantly when accosted with their act, it was already daylight and the Respondent’s son and Afok identified the 1st Appellant as ‘SUSAINAH’ boldly written on its side. At this stage the crews of the 1st Appellant deposited with Mr. Afok a negligible portion of the respondent’s net which got entangled with the 1st Appellant’s net while trawling.
In consequence of the damage to the Respondent’s boat and equipments, the Respondent instituted an action against the Appellants at the Federal High Court Lagos, in which he claimed jointly and severally the sum of N747. 500.00 being special damages for the boat and the fishing equipments.
In addition the Respondent claimed the sum of N250,000.00 being compensation for loss of earnings from the 11th day of October 1996 till the final determination of this action and an interest of 20% on the judgment debt from the date of judgment till the final liquidation thereof.
In reaction to the statement of claim, the Appellants who were the Defendants at the lower court filed a statement of defence in which they denied the averments contained at paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 25 of the amended statement of claim. The Appellants however admitted the averment contained at paragraph 3, and partially admitted paragraph 2 of the statement of claim. With respect to the averments contained in paragraphs 1, 4, 5, 6, 20, 21, 22, 23 and 24 of the statement of claim, the appellants averred in their statement of defence that they were not in a position to admit or deny them as the facts deposed therein were within the respondent’s knowledge only.
In further averment by the appellants in their joint statement of defence, they denied ever being involved in an accident in the night in question. They also denied ever being confronted by the respondent. According to the appellants, the captain of Susainah had radio contacts with the Captains of three other trawlers within the vicinity who confirmed that there were victims of boat wreck at sea who required help. In line with navigation rules relating to life saving, Susainah stopped trawling and raised its nets to the water surface and commenced search for the victims along with the three other ships. Finally, the Appellants claimed that the victims were found and rescued by one of the three fishing trawlers called ‘Mystic Dawn’ that was within the area.
After pleadings were filed and exchanged, the matter proceeded to trial. By a motion dated 6th of September 2000, the Appellants sought for and were granted leave by the lower Court to withdraw their counter-claim against the Respondent. By this leave the counter-claim was struck out.
At the end of the trial and in a reserved judgment, the lower court found for the respondent and ordered the appellants to pay to the respondent a total of N955,000.00 representing N705,000,00 special damages and N250, 000.00 general damages for loss of earning. In addition, the Appellants were ordered to pay 10% interest on the judgment sum to the respondent.
In that judgment, the learned Chief Judge made a lengthy consideration of the counter-claim which had earlier on been withdrawn and being dissatisfied and aggrieved with the decision of the learned Chief Judge, the appellants, by a notice of appeal dated 13th of May 2004, have appealed to this Court. Embedded in their notice of appeal are six grounds of appeal which read as followings:-
“1. The learned Chief Judge erred in law by holding that the plaintiff had proved its claim of negligent liability against the defendants after failing to properly evaluate the totality of the evidence before Her Ladyship.
PARTICULARS OF ERROR
(a) The judgment of the learned Chief Judge (particularly pages 4 through to 6) contained copious reference to the review of evidence of PW1 to PW3 in proof of their claim.
(b) There is no where in the judgment of the learned Chief Judge that there is a review of the evidence of any of the four (4) witnesses called by the defendants in support of their defence.
(c) There is no where in the judgment of the learned Chief Judge where her Ladyship expressed an opinion of belief or other wise of the evidence of the witnesses for the defendants in defence of the action.
- The learned Chief Judge erred in law when her Ladyship believed the evidence of PW2 (the Plaintiff’s son) that he “recognised the inscription on the trawler Susana as there was light every where on the vessel” without considering the unshaken evidence of DW1 which raised serious doubt about the identity of the vessel involved in the accident with the Plaintiff.
PARTICULARS Of ERROR
(a) There was unshaken evidence that the name of the vessel is on the bow (the front end section of the trawler) and that there were no bright light illuminating that part of the vessel at night.
(b) The evidence of PW2 was shown to be inconsistent under cross examination to the effect that he saw the name Susainah but could not attest to the number of lights on the vessel because his life was in danger.
- The learned Chief Judge erred in law when she held that from the totality of the evidence before her the defendants were negligent and did not properly or at all exercise any diligent and reasonable care towards the Plaintiff.
PARTICULARS OF ERROR
(a) To succeed in a claim for negligence it is not enough to proof that there was an accident.
(b) The plaintiff must proof that the accident was as it result of the negligence of the defendants.
(c) There was no evidence before the trial court in support of the fact that the defendant owed the plaintiffs the duty of care.
(d) The lanterns that were lit the fateful day were not tendered in evidence.
(e) There was no evidence before the trial court of any sailing or fishing regulations that plaintiff was complying with or that the defendants did not comply with.
(f) There was no evidence that the defendants breached any standard of care that is required of a reasonable man.
- The learned Chief Judge erred in law when she held that the failure to cross-examine PW3 concerning the throwing of the Plaintiff’s net from the first defendant’s vessel into the boat of PW3 (Mr. Afork) proves beyond reasonable doubt that the first defendant trawler collided with the plaintiff’s boat.
PARTICULARS OF ERROR
(a) Failure to cross-examine PW3 concerning the issue of the net cannot alone be conclusive testimony to show that the first defendant collided with the plaintiff’s boat when there is unshaken evidence of DW3 that it was their vessel that saved PW1 on the fateful day and not PW3.
(b) There was evidence showing that the accident had already happened before the defendants passed the plaintiff in the water.
- The learned Chief Judge erred in law when in pages 9 through to 11 of the judgment she pronounced on a counter-claim of the Defendants by dismissing same.
PARTICULARS OF ERROR
(a) By an order made on 11 November 2000 the learned Chief Judge had granted the defendants motion for amendment of their pleadings wherein the counter-claim of the defendants had been abandoned.
(b) The learned Chief Judge failed to consider or avert her mind to this fact in preparing her judgment.
- The learned Chief Judge erred in law by awarding to the plaintiff, inter alia, the sum of N400.000.00 (Four Hundred Thousand Naira) for the plaintiffs 40 horse power Yamaha outboard engine.
PARTICULARS OF ERROR
(a) There was physical evidence from DW3 who tendered a 15 horse power outboard engine cover as pan of the items that were rescued with the plaintiff.
(b) There was evidence that the cost of 40 horse power engine was significantly less than that alleged by plaintiff.”
In line with the practice of this court, parties filed their respective briefs of argument and the appeal came up for hearing on the 26th of April 2006. Professor G. A. Olawoyin (SAN) who appeared for the appellants identified the appellants’ brief of argument which is dated 22nd February 2005 and filed on the 23rd of February 2005. Learned senior counsel adopted the brief of argument and by way of emphasis submitted that the trial Court failed to avert its mind on the totality of the evidence adduced before it and assessed only the Respondent’s evidence. According to the learned senior counsel, the only aspect of the appellants’ case which the court dealt with is the counter-claim which had earlier been withdrawn. This, the learned counsel contended, is a clear manifestation of the fact that the lower court did not assess the totality of the evidence before it. On the authority of Jeremiah v. Mallard Drilling Co. (2003) 4 WRN 109, learned senior counsel urged this court to allow the appeal.
Mr. Olayemi Abogun, learned counsel for the respondent identified the respondent’s brief of argument which is dated 22nd April, 2005 and filed on the same day. Learned counsel adopted respondent’s brief of argument and urged this court to dismiss the appeal and affirm the judgment of the lower court.
From the grounds of appeal, the appellants distilled three issues for determination of this appeal. These issues read as follows:-
“1. Whether the trial court was right in deciding that upon the totality of the evidence before it there was a case of negligence rightly made out against the defendants without expressing an opinion of belief or disbelief of all the witnesses for the defendants.
- Whether having regard to the records and the judgment of the trial court, it could be said that there was a proper evaluation of the evidence in this case.
- Whether the trial Court was right to pronounce on and dismiss the counter-claim of appellants after same had been abandoned.
In the respondent’s brief of argument three issues have also been formulated for the determination of this appeal. These three issues also read.
“1. Whether the finding of the Honourable Chief Judge of the Federal High Court to the effect that the appellants were responsible for the boat mishap of the respondent on the 11th day of October 1996 was justifiable having regard to the evidences (sic) of the witnesses before the trial court.
- Whether a case of negligence was established against the appellants.
- Whether or not the erroneous dismissal during judgment of the appellants counter-claim which had been struck out earlier in an interlocutory application is capable of vitiating the entire judgment.”
The issues formulated by the Respondent are similar to the ones formulated by the appellants. Both appellants’ issue one and the respondent’s issue one deal with justifiability of the finding of the trial Court, while the appellants’ issue two and the respondent’s issue two deal with proper evaluation of the evidence by the lower court.
The 3rd appellants’ issue and the 3rd respondent’s issue dwell on the question of the dismissal of the counter-claim that had earlier been withdrawn in the judgment of the lower Court. Since the issues are similar, I will adopt the issues as formulated by the appellants in the determination of this appeal.
In the appellants brief of argument, issues one and two have been argued together. I will therefore treat the two issues together as argued.
Dr. Wale Olawoyin, learned counsel for the appellants who prepared the brief of argument, submitted in argument that the respondent failed woefully to prove that the appellants’ were negligent on the day of the accident even if he had proved that the appellants were responsible for the accident, a position the appellants vehemently denied. In a further argument, learned counsel submitted that the respondent did not put in issue any sailing or fishing regulations that he and his son complied with or regulations that the appellants ought to have complied with which they failed to so do. In addition learned counsel insists that the lantern and the torchlight the respondent claimed to have used were substandard considering their position in the rough sea and at night.
On the evidence before the lower court, learned counsel submitted that the trial Chief Judge failed to assess the evidence properly and that there is the need for this court to intervene. According to the learned counsel, if the learned Chief Judge had properly evaluated the evidence before her, she would have had great difficulty in finding that the appellants negligently caused the respondent damage.
In support of his position learned counsel cited the authorities in Jeremiah v. Mallard Drilling Co. (2003) 4 WRN 109 (lines 10-15); Ngilari v. Mothercat Ltd (1999) 13 NWLR (pt.686) 626 at 643 paragraphs D-F; Paul O. Omoregbe v. Ehigiator Edo (1971) All NLR 282.
Finally, learned counsel urged this Court to hold that the learned Chief Judge was wrong in reaching her decision by failing to express a clear opinion on the belief or disbelief of the witnesses.
In reply Mr. Olayomi Abogun learned counsel for the respondent submitted that the evidence on oath of DW3 is at variance with the appellants’ pleading regarding the cause of the respondent’s boat mishap at paragraph 5(v-viii) of the statement of defence, and so such evidence ought to be discountenanced since it has no evidential value. In support of his argument learned counsel cited Ukwu Eze v. Atasie 2 SCNQR 1136, (2000) 10 NWLR (Pt.676) 470 and Ogboda v. Adulugba (1971) 1 ANLR 68; Nkanu v. Onun (1977) 5 SC 13; Ekpoke v. Usifo (1978) 6-7 SC 187; Abaye v. Ofili (1986) 1 NWLR (Pt.15) 134; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598 and Overseas Construction Ltd v. Creek Enterprises (1985) 3 NWLR (Pt.13) 407.
In a further argument, learned counsel submitted that the identity of the person who rescued the respondent as given by the respondent himself is PW4 a local fisherman and not DW2 a purported Captain of another trawler. On this basis learned counsel urged this Court not to interfere with the findings of fact by the trial Chief Judge that the appellants were responsible for the boat disaster suffered by the respondent on 11th October, 1996.
On whether a case of negligence was established against the appellants by the respondent, learned counsel for the respondent made reference to paragraph 18 or the statement of claim which he copiously commented upon, and thereafter went into the definition of negligence and the requirements for prove of same and concluded that there is evidence before the trial court coupled with the averment in the pleading that the respondent is a fisherman using an engine powered boat in the Atlantic Ocean and the 1st Appellant a trawling vessel carrying on fish trawling business in the same Atlantic Ocean owed him a duty of care which it breached. In a further argument, learned counsel submitted that there was evidence before the trial Court that Plaintiff lighted and placed along his fishing line hurricane lanterns hung on giant floaters to communicate his presence to the appellants, and the fact that the 1st Appellant crashed into the Respondent’s boat and inflicted the damage enumerated in the suit was clearly suggestive that the 2nd Appellant was not exercising adequate or proper look out while steering the 1st Appellant on the 11th day of October 1996 as particularized under paragraph 18 of the statement of claim.
In support of this submission learned counsel cited Alhaji Kalla v. Jarmakani Transport Ltd. (1961) All NLR 747; Oyidiobu v. Ukechukwu (1972) 5 SC 191 and Orhue v. NEPA (1998) 7 NWLR (pt. 557) 187.
On these issues, learned counsel for the appellants, in his submission clearly attacks the findings of facts by the lower Court. The Supreme Court and indeed this Court have held in a number of decisions that the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the Court of trial and a Court of Appeal will not ordinarily interfere with that duty unless there is a compelling evidence which clearly indicates that there has been an erroneous appraisal of such evidence. See Eki v. Giwa (1977)11 NSCC 96; Fashanu v. Adekoya (1974) 1 ALL NLR (pt.1) 35 at 41 and Balogun v. Labiran (1988) 19 NSCC (pt.1) 1056 at 1064 paragraph 1; (1988) 3 NWLR (Pt.80) 66.
However, where it is alleged on appeal that the trial court failed to adequately evaluate the evidence given before it in a case, the details of any specific evidence the trial court failed to evaluate must be given. See Ejoh v. Wilcox (2003)13 NWLR (pt.838) 488 at 510 Paragrapg C-D.
In the instant appeal, Dr. Olawoyin, learned counsel for the appellants submitted that the respondent failed to establish that the accident was caused by the vessel Susainah. In a further argument, learned counsel submitted that even if the accident was cased by Susainah it was not established that there was negligence on the part of Susainah.
On the proof that it was the 1st Appellant that collided with the respondent’s boat, the learned trial Chief Judge made reference to paragraph 17 of the amended statement of claim and the testimonies of PW1, PW3 and PW4 and concluded that even though the appellants denied the said paragraph 17 of the amended statement of claim in their statement of defence, no evidence was led in support of their averment. This being so, the learned Chief Judge held that the averment at paragraph 17 of the amended statement of claim was not effectively traversed and she therefore agreed that the respondent had proved beyond doubt that it was indeed the 1st Defendant that collided with the plaintiffs’ boat.
The averment at paragraph 17 of the further amended statement of claim reads:-
“The plaintiff avers that the crews of the 1st defendant deposited with his recuer (sic) a negligible portion of plaintiff’s net which got entangled with the 1st defendant’s net while trawling.”
This averment is denied at paragraph 1 of the appellants’ amended statement of defence at the lower court in the following words:-
“The defendant deny in their entirety all the allegations contained in paragraphs 7, 8, 9, 10, 11, 12 13, 14, 15, 16, 17, 18, 19, and 25 of the statement of claim and shall require very strict proof of all the allegations at the trial of this action.”
In support of the averment at paragraph 17 of the statement of claim, PW1 who was the plaintiff at the lower court testified as follows:-
“When I caught up with them, I parked very near them, but they were driving me away. I then told them that they wanted to kill me and my son. After a while the captain now came out of the boat. He is a fat man. When the captain first came out, he was, speaking in broken English, which I do not understand. But my son did. It was later that the captain started speaking in our Ilaje dialect. As I was talking with the captain, the people on the boat was (sic) not happy. They then took my own net and threw at us.”
Witness identified the nets which were admitted in evidence without objection and marked exhibits A-A1. Under cross-examination witness identified exhibits A-A1 as part of the nets he took to the sea on the day the accident occurred.
This evidence of PW1 was corroborated by the pieces of evidence of PW3, the respondent’s son who also stated in his evidence that he saw Susainah written on the body of the trawler immediately after the accident, and that of PW4.
The appellants called three witnesses and none of them gave evidence in denial of the entanglement of the respondent’s nets with the 1st appellant’s nets while trawling. Learned counsel for the appellants did not deem it fit to cross examine the respondent’s witnesses on the issue of the entanglement of the nets.
Even though the appellants denied the averment at paragraph 17 of the statement of claim in their statement of defence, their failure to call evidence in support of their denial is an inference that their pleading at paragraph one of the statement of defence has been effectively abandoned.
In Attorney-General of Anambra State v. Attorney -General of the Federation (2005) 5 S.C (pt.1) 73; (2005) 9 NWLR (Pt.931) 572, I.C. Pats Acholonu JSC of blessed memory cited with approval the case of Jolayemi v. Alaoye (2004) 5 SC (Pt. 11) 112, (2004) 12 NWLR (Pt. 887) 322 at 340 where Kalgo JSC said:-
“Pleadings are the body and soul of any case in a skeleton form and are built and solidified by the evidence in support thereof. They are never regarded as evidence by itself (sic) (themselves) and if not followed by any supporting evidence they are deemed abandoned.”
According to my lord Acholonu JSC, pleadings of a party, unless conceded by the other party must of necessity be well fleshed up by evidence to persuade the Court positively.
See Ezeanah v Atta (2004) 7 NWLR (Pt.873) 468; Gaaba v Lobi Bank Nigeria Ltd (2003) FWLR (Pt.173) 106.
The entanglement of the Respondent’s nets with the nets of the 1st Appellant soon after the accident is a clear evidence that it was the first Appellant that collided with the Respondent’s boat in the morning of 11th October 1996. Indeed DW1, one Felix Akpos Umuteme a navigator in the first Appellant saw the Respondent and his son in the water after the accident. This is what he said:-
” … I ran back to the wheel house, slowed down my engine for hull up. As I was hulling up, we saw these people floating by. At that lime the Hulling up takes (sic) about 15 minutes before one can bring all our gears up. The current was so high that it took only two minutes from seeing them before the current swept them by past us…..”
DW2 in his evidence said nothing happened on the 11th October 1996 except at about 6.00a.m. Some people came to thank him for saving their lives.
From the circumstances of the case, the learned Chief Judge was right to have agreed that the 1st Appellant and no other trawler collided and wrecked the Respondent’s engine boat in the morning of 11th October 1996 off Ilepete village a coastal settlement in Ondo State. This is so because of the uncontroverted evidence in which the respondent’s nets which they were using immediately before the accidents were found entangled with the appellants’ nets. I therefore agree with the finding of the lower court that the 1st Appellant, Trawling vessel Susainah is the one that ran into the respondent’s boat and wrecked it.
Mere accident however, cannot ground an action for damages. In order to succeed in an action for claim for negligence the plaintiff must plead and prove that the accident was as a result of the negligence of the defendant. In doing so he must plead and prove the particulars of negligence. The said particulars to be pleaded and proved must show the circumstances of the complaint relevant to the case. In addition the plaintiff must plead and prove by evidence:-
- that the Defendant owed him a duty of care;
- that the Defendant is in breach of that duty; and
- that damage has resulted as a result of the Defendant’s breach.
See Fan Milk Ltd. v Edemeroh (2000) 9 NWLR (Pt.672) 402; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (pt.636) 626; Merchantile Bank of Nigeria Ltd. v. Abusomwan (1986) 2 NWLR (pt.22) 270; Nigeria Bottling Company Limited v. Ngonadi (1985) 1 NWLR (pt.4) 739.
With respect to the proof of negligence, the learned trial Chief Judge copiously made reference to paragraphs 18, 19-25 of the statement of claim and paragraphs 12 and 13 of the statement of defence and concluded thus:-
“The evidence before the court and the oral evidence of all the witnesses, both for the plaintiff and for the defendant, do not support the defendants’ position.
I therefore hold that the plaintiff has by his pleading and evidence of PW1, PW 2 and PW 3, proved the Plaintiff’s case.”
For the purpose of clarity, I reproduce here under paragraphs 18 and 19 of the amended statement of claim as follows:-
“18. The plaintiff would at the trial of this action contend that the defendants were negligent and did not properly or at all exercise any diligent and reasonable care the 1st defendant owes plaintiff while in the care and control of the 2nd defendant resulting in the crash of the 1st defendant against the plaintiff’s fishing boat on 11th October 1996 culminating in the plaintiffs loss of his entire fishing equipments.
PARTICULARS
(i) The 2nd defendant ought to know that other fishermen, including the plaintiff were on the sea to whom he owed a duty of care while managing the 1st defendant.
(ii) The 2nd defendant failed and omitted to exercise proper or adequate look out while steering the 1st Defendant around 5 3.m. or thereabout on 11/10/96 hence his liability to see and observe the presence of the plaintiff being communicated by 3 giant floaters with torchlight and lantern to communicate their presence and position.
(iii) There was no fog or mist that could impair visibility early in the morning of 11th October 1996.
- The plaintiff would also at the hearing contend that the 1st and 2nd defendants were reckless purposely and callously omitted to rescue the plaintiff and his son from the sea hoping that they would inevitably drown to conceal their (defendants) damnable act.”
In reply to paragraphs 18 and 19 of the amended statement of claim the appellants averred at paragraph 12 of the amended statement of defence as follows: –
“The defendants deny paragraph 18 and states that they were not in anyway negligent in any of their activities at sea on the day in question, particularly, as the only actions taken by them in relation to the plaintiff was in participating in the rescue operation to save the life of the plaintiff and his companion.”
The Respondent led evidence in support of the averment at paragraph 18 of the amended statement of claim. The respondent who testified as PW1 said:-
“I remember, I left my home at about 3am to go and fish. Upon getting there, I cast my net to start fishing, before I cast my net, I had our (sic) lanterns. I put one of the 4 lanterns on the water and the remaining three were on the boat. After that I cast my net. As I was expanding my net under the water, I saw the light of the Trawler very far away from me. I then instructed my son who was with me to lift one of the lanterns, to warn the Trawler that someone is there.
… After my son had complied and lifted the lantern, I also took a torchlight with 3 batteries and was flashing it. As I was flashing the torchlight and my son lifting high the lantern, the Trawler refused to change its direction, as it was advancing towards us, and it nearly reached us, I took my son by the hand and we jumped into the water… ”
This piece of evidence is corroborated by the evidence of PW3 who said the three lanterns on the water were placed on giant floaters which were laid between the nets.
The evidence of DW1 who was a navigator on ‘Susainah’ on the day of the accident is at pages 72-75 of the record of appeal. The evidence of DW2, the Captain of the Trawler, Susainah is at pages 92-94. None of them gave evidence concerning the security measures the respondent claimed to have put in place prior to the accident. Civil matters are decided on preponderance of evidence. The respondent clearly pleaded and proved that he used lantern and torchlight to warn the appellants that they were at sea. The onus at this stage had shifted to the Appellants to specifically deny the claim of the respondent. Their failure to adduce evidence in rebuttal amounted to an abandonment of their joint pleading at paragraph 12 of the statement of defence. See A.-G of Anambra State v A.-G. of the Federation (2005) 5 SC (Pt.1) 73 and Durosaro v. Ayorinde (2005) 3-4 S.C. 14; (2005) 8 NWLR (Pt.927) 407.
DW1, DW2 both admitted in their testimonies that they are aware that fishermen using 15-25 H.P Yamaha engine boats operate within the area the accident occurred. Having seized of that knowledge, the appellants therefore owed the respondent a duty of care which from the evidence available they are in breach.
I am therefore convinced that the trial court properly assessed the evidence before it and this court has no jurisdiction to interfere with its performance.
Dr. Olawoyin, learned counsel for the appellants argued strenuously that the respondent did not put in issue any sailing or fishing regulations that he and his son complied with or regulations that the appellants ought to have complied with which they failed to do so. In a further argument, learned counsel submitted that the lantern and the torch-light the respondent claimed to have used were substandard considering their position in the rough sea and at night. I wish to state here that parties in a civil matter are bound by their pleadings and evidence led on facts not pleaded goes to no issue. Also any submission by counsel on facts not contained in the parties’ pleadings and evidence also goes to no issue. The parties neither joined issues at the lower court on the sailing and fishing regulations nor the standard lighting equipments al sea.
The trial Chief Judge was therefore perfectly right when she refused to comment on issues that were not placed properly before her.
See Dabo v. Abdullahi (2005) 2 SC (pt.1) 75; Ugoji v. Onukogu (2005) 5 SC (pt.11) 45; Hashidu v. Goje (2003) 15 NWLR (pt.843) 352; Jiwul v. Dimlong (2003) 9 NWLR (pt.824) 154.
In a general averment at paragraph 4 of the amended statement of defence the appellants pleaded as follows:-
“In specific response to paragraph 4 of the amended statement of claim, the defendants shall contend at the trial of the suit that local fishermen do not utilize engines of more than 15 horse power on their wooden boats because engines of more than 15 horse power would make the boat capsize al sea.”
DW2, Captain Mathew Obatimehin in answer to examinations-in-Chief admitted that he was a private fisherman for 10 years before he started working for some companies and that the engine they used during that time was 8 HP, 15 HP and sometimes if they were many they used 25 HP. This is what DW 2 said at page 93, 2nd to the last line thus: –
“The engine we used during that time was 8 HP, 15 HP, and sometimes if we are many we make use of 25 HP.”
This evidence, coming from the witness called by the appellants has made nonsense of the averment contained at paragraph 4 of the statement of defence. There is also nowhere in the statement of defence where it was pleaded that the respondent forgot his Yamaha outboard Engine cover, exhibit E in MV Mystic Dawn, a trawler whose Captain claimed to have rescued the respondent. Evidence led on facts not pleaded goes to no issue. See Akeredolu v. Akinremi (1986) 2 NWLR (pt.25) 710.
A Court is enjoined to comment on every issue raised before it in its judgment. However in the instant appeal lack of comment on the part of the learned Chief Judge on the issue of the capacity of the Yamaha engine that is ordinarily used by the fishermen has not affected the out come of the case. For such silence to affect the outcome of this case, the Appellants must show that a miscarriage of justice has been occasioned thereby, This has not been shown.
Finally, on these issues, Learned Counsel for the Appellants submitted that the judgment of the lower Court is not in conformity with the standard judgment as highlighted in the case of Okulate v. Awosanya (2000)2 NWLR (Pt 646)530 and Nkedo v. Obiano (1997)5 NWLR (Pt.503) 31. For this purpose he urged this Court to hold that same is not safe and it is liable to be set aside. The issue of judgment writing has received adequate attention from the Supreme Court. In the light of this I will do no more than to refer to the decision of the apex Court in Usiobaifo v. Usiobaifo (2005)1 SC (Pt.11) 60 at 77 paragraph 4 where Tobi JSC said:-
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in the field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in the brief, Once a judgment of a trial Judge states the claim or relief of the Plaintiff, the relevant facts and counter facts leading to the claim of relief, arguments of counsel if counsels are in the matter, reactions or the judge to the arguments and the final order, an appellate court cannot hold that the judgment is not properly written.”
Clearly the Judgment of the lower Court has satisfied the conditions spell out by the apex Court and this Court is not in a position to disturb same.
On the whole issues 1 and 2 as argued in the appellants brief and the reply thereto are resolved in favour of the respondent and the grounds of appeal upon which they were framed are accordingly dismissed.
On the issue three, it is evident from the records that the appellants applied by a motion dated 9th September, 2000 to amend their statement of defence by deleting the counterclaim and same was granted by the learned Chief Judge on the 30th November, 2000. (See pages 142-143 of the Record). I therefore agree with the learned counsel for the respondent that the action of the learned trial Chief Judge in writing a judgment dismissing a counter-claim that had ceased to be before her amount to an exercise in futility. Parties are bound by their pleadings.
See Okonkwo v. C.C.B. (Nig.) Plc. (2003) 8 NWLR (pt.822) 347; Thompson v. Arowolo (2003) 7 NWLR (pt. 818) 163. At the time judgment was given on the counter-claim the issues raised therein were no longer before her as such she had no jurisdiction to make pronouncement on the counter-claim.
Dr. Olawoyin, learned counsel for the appellants submitted on this issue that the learned Chief Judge’s pronouncement on the counter-claim that had been withdrawn is a further evidence of the failure of the learned Chief Judge to carefully go through the records before making her pronouncement in the respondent’s favour. According to him, this fact in conjunction with others have rendered the decision of the lower Court unsafe, unsustainable and liable to be struck out.
I do not think that the error in delivering judgment on the counter-claim is capable of vitiating the entire judgment of the learned Chief Judge. A counter-claim clearly is a cross action which is separate from the claim on the writ and the statement of claim of the Plaintiff. See Beddall v. Maitland (1881) 17 ch. D. 174. A counter claim needs not be connected with the plaintiff’s claim or arise out of the same transaction. In Okonkwo v. C.C.B. (Nig.) Plc. (2003) 8 NWLR (pt 822) 347 at 402-403 paragraphs G-D, the Supreme Court gave the meaning and nature of counter claim in the following words:-
“A counter-claim is a cross action with its separate pleadings, judgment and costs. It is almost in a
world of its own. But a counter-claim cannot be inconsistent with the plaintiffs claim in the sense that it cannot erect a totally different case from that of the Plaintiff, A counter claim is clearly marked “counter claim” and the defendant, who in his apparently changed status as plaintiff, avers in numbered paragraphs his claim which finally ends with the relief sought. A counter claim, though related to the principal action, is a separate and independent action and Nigeria’s adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action.”
See also Stooke v. Taylor (1880) 5 QBD 569; Quin v. Hession (1879) L.T. 70; Oyegbola v. Esso West African Ltd (1966) 1 ALL NLR 170 Nigeria Port Authority v. C.G.F.C. (1974) 12 SC 81; Biode Pharmaceutical Industries Ltd v. Adsell Ltd (1986) 5 NWLR (Pt.46) 1070; Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299; Phillips v. Rajaiye (1961) LLR 15.
The judgment on the counter claim is a nullity since it is not based on any claim before the court, for affect the entire judgment, the appellant must show that a miscarriage of justice has been occasioned thereby. This has not been shown in the instant appeal.
On the whole, this appeal lacks merit and it is accordingly dismissed. The decision of the lower court wherewith the claims of the respondent are upheld is hereby affirmed.
The respondent is entitled to cost which I asses at ten thousand naira (10,000.00) against the appellants.
Other Citations: (2006)LCN/2054(CA)
