FRIDAY IGHODARO V. ELF OIL NIGERIA LTD & ORS
(2010)LCN/3956(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
RATIO
GROUNDS OF APPEAL: WHETHER ISSUES RAISED FOR DETERMINATION MUST BE DISTILLED FROM GROUNDS OF APPEAL
The court had on many occasions decided that Issues raised for determination must be distilled from grounds of appeal, when an issue does not derive from the grounds of appeal the issue is incompetent and is liable to be struck out by the court. See PAIRE ROBERTO (NIG Ltd) v. ANI (2009) 13 NWLR (Pt 11s9) 522, INTEGRATED BUILDERS V. DOMZAG VENT (NG) LTD (2005) 2 NWLR (Pt 909) 97 OSIMPEBI V. SAIBU (1982) 7 SC 104; A.B.U. V. MOLOKWU (2003) 9 NWLR (Pt 825) 265; ARACO (NIG) LTD V. TRADE BANK PLC (2003) 9 NWLR (Pt 815) 22. PER GEORGE OLADEINDE SHOREMI, J.C.A.
PLEADINGS: EFFECT OF FACTS PLEADED BUT NOT GIVEN IN EVIDENCE
It is trite that facts pleaded but not given in evidence go to no issue. PER GEORGE OLADEINDE SHOREMI, J.C.A.
EVALUATION OF EVIDENCE: WHETHER EVALUATION OF EVIDENCE IS A PRIMARY DUTY/ROLE OF THE TRIAL COURT; FACTORS THAT GUIDE THE TRIAL COURT IN EVALUATING EVIDENCE PRESENTED BEFORE IT
It is the primary duty/role of the trial court to listen to and watch the demeanor of witnesses. After trial, the duty of evaluating and appraising the evidence based on the pleadings, the oral testimony of witnesses and the documents tendered coupled with the advantage of seeing and hearing witness belongs also to the trial court. The duty being of no mean task the trial court is to be guided by factors such as (a) Admissibility of evidence at its disposal (b) Relevancy of the evidence (c) Conclusiveness of the evidence (d) Probability of evidence in the sense that it is more probable than the evidence of the other party. After due consideration of the foregoing the court then applied the law to the situation presented in the case before it so as to arrive at a conclusion in one way or the other. See Supreme Court of case of ANYANWU V. UZOWUAKA (2009) 13 NWLR Part 1159 446 para G-H; 486 para C-G. Held an appellate court has no business in the evaluation of evidence because of its limitation of not seeing and hearing witnesses. Consequently an appellate court would not ordinarily interfere with the findings and conclusion of the trial court. PER GEORGE OLADEINDE SHOREMI, J.C.A.
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Benin High Court presided over by Hon. Justice (Mrs) E.F. Ikponmwen delivered on 19/6/02 wherein the court dismissed the case of the Appellant in its entirety.
The Appellant’s case in the lower court against the Respondents, jointly is for the sum of (N10, 900,000.00) Ten Million, Nine hundred thousand Naira being special:-
(a) The sum of N10,900,000.00 ten million, Nine hundred thousand Naira) being special and general damages suffered by the Plaintiff in view of the arrest and detention of his vehicle by men of the Task Force on petroleum products and consequent loss to business.
PARTICULARS OF SPECIAL DAMAGES
(1) Loss of use for 42 days at N50,000.00 per day.- N2,100,000.00
(2) Cost of 16 tyres in the vehicle at N50,000 per one – 800,000.00
(3) Corrosion of the Tanks, brake pads, Batteries and repairs of electrical – 2,000,000.00
N4,900,000.00
(4) Defamation and loss of good will to business – 6,000,000.00 -N10,9000,00.00
The Appellant called 4 witnesses including himself and Respondent did not call evidence but addressed the court. In a considered judgment the court found as follows: I quote the relevant portion “Consequently I hold the defendants not liable for any of the special or general damages claimed. The claim for defamation is ridiculous and unserious. All the essential requirements for its proof are not made out. I dismiss in its entirety the claims of the Plaintiff which does appear gold digging”. The Appellant dissatisfied with the judgment appealed to this court.
Five grounds of appeal were filed on his behalf. They are hereunder set out without particulars:
1) The Learned trial Judge erred in law in failing to make any findings of fact, carry out an evaluation of the evidence received and ascribe probative value thereto regarding the plaintiffs claim in defamation and consequently reached a wrong decision.
2) The learned trial court erred in law when it held as follows: “The claim for defamation is ridiculous and unserious. All the essential requirements for its proof are not made out.
3) The learned trial Judge erred in law in holding that, “it is not enough to state that the documents are with the Force that has been disbanded. It is imperative that if the plaintiffs hope to succeed in his claim, he produces the documents.
4) The learned trial court misdirected itself on the facts when it held as follows: “All that relates to the evidence in this regard appear documentary and as such it is only the production of the documentary evidence that would suffice”.
5) The learned trial Judge erred in law in imposing on the Plaintiff a greater burden of proof than was required in the circumstances.
Briefs were exchanged in this court.
The appeal came up for hearing on 24/5/10. Mrs Ekaete Author counsel for the Appellant adopted and relied on the Appellant’s brief filed on 6/5/03 and the reply brief dated and filed same day but deemed properly filed and served on 3/5/05. She relied on the briefs as arguments in favour of the Appellant and she urged the court to allow the appeal and set aside the judgment of the lower court. Mrs. Osayande counsel to the Respondent adopted her Respondent brief dated 15/3/04 filed on 16/3/04 but deemed properly filed and served on 29/4/04. She also relied on same as argument in favour of the Respondent jointly and urged the court to dismiss the appeal as lacking in merit. The Appellant in his brief distilled 3 issues for determination thus I quote –
(1) Having regards to the uncontradicted and uncontroverted evidence in respect of the claim for defamation, whether the trial court was justified without reviewing or evaluating the evidence and ascribing probative value thereto in coming to the conclusion as it did, that “the claim for defamation is ridiculous and unserious.”
(2) Whether the non-production of the waybill and/or documents by the Appellant rendered all the evidence adduced at the trial improbable so as to fall short of the minimum standard of proof required in the circumstance?
(3) Whether on the totality of the pleadings and evidence adduced, the trial court was justified in dismissing the Appellant’s claims in its entirety?
It is of note that none of the issues distilled by the Appellant is tied to any ground of appeal and therefore bad in law. The Respondents adopted the issues for determination as distilled by the Appellant. The Respondent not raising any serious objection to the issues as formulated observed thus I quote –
“We wish to observe that the Appellant argument on the issues for determination seems to argue all the grounds of appeal together in that none of the issues has been shown as arguments specifically tied or related to the relevant ground of appeal on the record. It is our submission that this is a proper case for the issue for determination to be struck out under the authority of ADELEKE V. ASANI (1994) 1 NWLR (Pt 322) 536 at 542, 550 para C”.
The Appellant in his reply brief rather than amend his Appellant’s brief to address the error in the Appellant’s brief submitted that it not the law that issues must be specifically tied to a mentioned ground of appeal for the issues to be competent. He said there is no basis for the submission of the Respondent that the issue is struck out. The Appellant is not serious on this submission. The point raised by the Respondent is a serious issue. The court had on many occasions decided that Issues raised for determination must be distilled from grounds of appeal, when an issue does not derive from the grounds of appeal the issue is incompetent and is liable to be struck out by the court. See PAIRE ROBERTO (NIG Ltd) v. ANI (2009) 13 NWLR (Pt 1159) 522, INTEGRATED BUILDERS V. DOMZAG VENT (NG) LTD (2005) 2 NWLR (Pt 909) 97 OSIMPEBI V. SAIBU (1982) 7 SC 104; A.B.U. V. MOLOKWU (2003) 9 NWLR (Pt 825) 265; ARACO (NIG) LTD V. TRADE BANK PLC (2003) 9 NWLR (Pt 815) 22.
In the instant case none of the issues relate to any of the grounds of appeal and are liable to be struck out. They are therefore struck out as being worthless and incompetent. Having struck out the issues formulated by the Appellant, I shall treat that the appeal as being a complaint against evaluation of the totality of evidence adduced by the Appellant in the lower court and decide whether the trial Judge erred in law as suggested by the Appellant when he failed to make any finding of fact, to carry out an evaluation of the evidence received and ascribe probative value thereto regarding the Plaintiffs claim in defamation and consequently reached a wrong decision. The totality of the Appellant argument in his brief is that the evidence adduced by him in the lower court was sufficient to entitle him to judgment.
I quote part of his submission –
“(3) The material facts pleaded in paragraphs 19, 20 and 21 of the 3rd Amended Statement- of Claim and the admissible evidence received on the records by the trial court was sufficient on the balance of probability to sustain the Plaintiff claim for defamation.”
The totality of the Respondents submission is that the Appellant’s case is patently and manifestly bad that no reasonable tribunal could possibly act upon it. He submitted that the court should dismiss the appeal. (MOGAJI OTHERS V. ODOFIN & ANOR (1978) 4 SC 91; UMEDI V. OTUKAYO 1978 4 SC 33 at 57.
To have a clear view of the Appellant’s case as presented in the lower court I quote extensively part of the judgment of the lower court hereunder:-
“I have carefully and calmly perused the evidence of the Plaintiff in this case and the submissions of both counsel coupled with the legal authorities cited to buttress the case of either side. The Defendants filed a statement of defence but did not lead evidence in support of it.
It is trite that facts pleaded but not given in evidence go to no issue. The Plaintiff’s case remains in the main unchallenged and uncontradicted. All the proof the plaintiff requires in law is minimal.
By order of court on 19/9/01, the plaintiff filed a 3rd amended statement of claim which I find to be the basis of this action. In the said 3rd amended statement of claim the plaintiff pleaded as follows:-
“Whether the Plaintiff claims from the Defendant jointly and severally as follows:-
(a) The sum of N10,900,000 (Ten Million, Nine hundred thousand Naira) being special and general damages, suffered by (sic) the plaintiff in view of the arrest and detention of his vehicle by men of the Task Force on Petroleum products.
PARTICULARS OF SPECIAL DAMAGES
(1) Loss of use for 42 day(s) at N50,000.00 Per day -N2,100,000.00
(2) Cost of 16 tyres in vehicle at N50,000.00 per day -800,000.00
(3)Corrosion of the Tanks brake pads,Batteries and Repairs of electrical- 2,000,000.00 – N4,900,000.00
(4) Defamation and loss of good will to business- 6,000,000.00- N10,9000,00.00
The Plaintiff in his claim for the loss of use of his vehicle must prove that the act of the defendant caused the seizure of his vehicle and that the product the vehicle was conveying belonged to the 1st defendant. The Plaintiff to succeed in its claim must prove that the manipulation of the waybill/documents authorizing the movement of the products was done by the defendants. The pleadings of Plaintiff in paragraphs 5, 6, 7, 8, 9, 10 and 11 shows that the Plaintiff had Documents which were supplied his driver to convey the products to Ore. The onus lies squarely on the Plaintiff to produce this documentary evidence in proof of his claim. It is not enough to state that the documents are with the Task Force that has been disbanded. It is imperative that if the Plaintiff hopes to succeed in his claim, he produces the documents. The evidence of PW1 does not support the claim of the Plaintiff; the documents found on his driver had some manipulations to allow illegal diversion of petroleum products. To succeed in its claim the Plaintiff must show by credible evidence that it was the act of the Defendants that led to the seizure of Plaintiff ‘s vehicle by the Task Force. All that relates to the evidence in this regard appear documentary and as such it is only the production of the documentary evidence that would suffice. The evidence of Plaintiffs driver PW2 that he was leaded (sic) from Benin to Federal Government fuel dept in Ore under cross examination shows a contradiction in the evidence to what led to his arrest. This can only be clarified by the documents. If the Plaintiff does not blame the Task Force for the detention of his vehicle but seeks to show that it was the defendants who manipulated documents that led justifiably to the seizure of his truck and so they must be liable for the consequent loss he suffered, the Plaintiff must of necessity prove the illegal manipulations by Defendants by adducing documentary evidence in support of the claim. I find that the Plaintiff has not done so. The documents are not tendered and so the claim remains not proved even by minimal proof consequently I hold the defendants not liable for any of the special or general damages claimed. The claim for defamation is ridiculous and unserious. All the essential requirements for its proof are not made out. I dismiss in its entirety the claims of the Plaintiff which does appear gold digging”.
I have read the evidence on the record of proceedings and the judgment of the learned trial Judge. I have also perused the briefs filed in this court and I found that the trial court had performed its duty creditably well.
It is the primary duty/role of the trial court to listen to and watch the demeanor of witnesses. After trial, the duty of evaluating and appraising the evidence based on the pleadings, the oral testimony of witnesses and the documents tendered coupled with the advantage of seeing and hearing witness belongs also to the trial court. The duty being of no mean task the trial court is to be guided by factors such as
(a) Admissibility of evidence at its disposal
(b) Relevancy of the evidence
(c) Conclusiveness of the evidence
(d) Probability of evidence in the sense that it is more probable than the evidence of the other party.
After due consideration of the foregoing the court then applied the law to the situation presented in the case before it so as to arrive at a conclusion in one way or the other. See Supreme Court of case of ANYANWU V. UZOWUAKA (2009) 13 NWLR Part 1159 446 para G-H; 486 para C-G. Held an appellate court has no business in the evaluation of evidence because of its limitation of not seeing and hearing witnesses. Consequently an appellate court would not ordinarily interfere with the findings and conclusion of the trial court.
In this case the trial court had done its duty as expected of him and I have no reason to set aside his judgment. The appeal lacks merit and therefore unmeritorious and it is hereby dismissed with N20,000 cost the Respondents.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I have read before now the lead judgment of my learned brother, Shoremi, JCA. I agree with his line of reasoning and conclusion that this appeal is devoid of merit. I dismiss the appeal and assess the costs thereof at Twenty Thousand Naira only in favour of the Respondents and against the Appellant
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother SHOREMI, J.C.A. I agree that this appeal is devoid of any merit and ought to be dismissed. Appeal is hereby dismissed. I abide by all the consequential orders in the lead judgment, including the order for costs.
Appearances
Miss Ekaete AuthorFor Appellant
AND
Mrs. O.A. OsayandeFor Respondent
