➥ CASE SUMMARY OF:
Chief Onumah Nkpa v. Champion Newspapers Limited & Anor (2016) – CA
by Branham Chima (SAL).
Court of Appeal • CA/L/412/2012
➥ JUDGEMENT DELIVERED ON:
10th March 2016
➥ AREA(S) OF LAW
Reply to statement of defence;
➥ PRINCIPLES OF LAW
➥ LEAD JUDGEMENT DELIVERED BY:
Samuel Chukwudumebi Oseji, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
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, include, inter alia: 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.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the learned Judge of the Court below was right in holding that the additional processes filed by the Appellant in his Reply to the Respondents’ statement of defence is not permitted by the Rules of the Lagos State High Court and therefore incompetence?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RULES DID NOT GO FURTHER THAN JUST A REPLY BEING FILED; ADDITIONAL STATEMENT ON OATH CANNOT BE ADDED
“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.”
“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.”
“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.”
“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.” 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 (₦50,000) cost is awarded against the Appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ A REPLY TO STATEMENT OF DEFENCE MUST NOT CONTAIN ANY NEW CLAIM
Adeniji v. Fetuga (1990) 5 WLR (Pt. 150) 375 this Court per Akanbi J.C.A. (as he then was) held thus:- “A reply is the Plaintiff’s 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.”
➥ REFERENCED (OTHERS)