MRS. CHRISTIANA CHISA TAFRI & ANOR V. EXECUTIVE GOVERNOR OF RIVERS STATE & ANOR (2010)

MRS. CHRISTIANA CHISA TAFRI & ANOR V. EXECUTIVE GOVERNOR OF RIVERS STATE & ANOR

(2010)LCN/4085(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of December, 2010

CA/PH/291/2009

RATIO

DUTY OF THE COURT: WHAT THE COURT MUST DO IN EVALUATING THE EVIDENCE PLACED BEFORE IT BY THE PARTIES IN A CIVIL CASE BEFORE ARRIVING AT A DECISION AS TO WHICH EVIDENCE HE BELIEVES OR ACCEPTS AND WHICH EVIDENCE HE REJECTS

A Court should properly evaluate the evidence placed before it. In MOGAJI & ORS v. ODOFIN & ORS (1978) 4SC 91 at 94 the Supreme Court had this to say. “In short, before a judge before whom evidence is adduced by parties in a Civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he would put the evidence adduced by the plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is why it said that a Civil case is decided on the balance of probabilities. See also FAGBENRO V. AROBADI (2006) 7 NWLR (Pt. 978) 174; OLUSILE VS MAIDUGURI METRO. COUNCIL (2004) 4 NWLR (Pt. 863) 290. PER TUNDE OYEBANJI AWOTOYE, J. C. A

INSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

When a trial court fails to evaluate the evidence before it properly or at all an appellate court can intervene and re-evaluate such evidence. see ADEBAYO v. ADUSEI (204) 4 NWLR (pt 682) 44. Interference by an appellate court could only occur-when and when he fails to evaluate such evidence at all or he fails to do properly. See ABISI v. EKWEALOR (1993) 6 NWLR (pt. 302) 643; OBODO VS OGBA (1987) 2 NWLR (PT.54) Page 1; OGBECHIE VS ONOCHIE (NO 2) (1988) 1 NWLR (pt. 70) page 370. If the findings of fact of the trial court are not supported by the totality of evidence on record the appellate court can also interfere. See OBODO VS OGBA (supra) at page 1. PER TUNDE OYEBANJI AWOTOYE, J. C. A

BURDEN OF PROOF: BURDEN OF PROOF ON THE PERSON THAT MAKES AN ASSERTION

He who asserts must prove. See Section 137 of Evidence Act. Seer also DAODU VS NNPC (1998) 2 NWLR (PT. 538) 355. PER TUNDE OYEBANJI AWOTOYE, J. C. A

CALLING OF WITNESS: CONSEQUENCE OF THE FAILURE OF A CLAIMANT TO CALL A VITAL WITNESS ON ITS CASE

It was for the claimants to go beyond the documentary evidence tendered to call the vital witness who was an eye witness who allegedly called to admit liability on behalf of the defendants. Failure to call the Dr, Eneyo mentioned by the PW1 is fatal to the case of the claimants. see section 149(d) of the Evidence Act. PER TUNDE OYEBANJI AWOTOYE, J. C. A

WHETHER COURTS CAN BASE THEIR JUDGMENTS ON EXTRANEOUS MATTERS OR SPECULATION

I find the judgment and conclusion of learned trial judge unimpeachable courts are not to base their judgments or extraneous matters or speculations AGHOLOR VS A.G. BENDE L STATE (1990) 6 NWLR (PT.155) page 142 at 145; ONUOHA VS THE STATE (2002) 1 NWLR (PT 748) 406; OMOZEGHIAN VS ADJARHO (2006) 4 NWLR (Pt. 969 ) 33. PER TUNDE OYEBANJI AWOTOYE, J. C. A

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. MRS. CHRISTIANA CHISA TAFRI
2. MR. ONORIODE TAFRI (For themselves & as representing the Immediate family members of Mr. Michael Ogheneovo Tafri (deceased) Appellant(s)

AND

1. EXECUTIVE GOVERNOR OF RIVERS STATE
2. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE Respondent(s)

TUNDE OYEBANJI AWOTOYE, J. C. A. (Delivering the leading judgment): This is the judgment in respect of an appeal filed against the judgment of High Court of Rivers State sitting at Port Harcourt in suit No PHC/38/2008. Between Mrs. Tafri & others v. Executive Governor of Rivers State and Another.
The claim against the Defendant/Respondents is, as follows –
1. The claimants claim against the defendants the sum of N150, 000.00 (one hundred and fifty million Naira) only for the bereavement and benefits to the deceased’s estate arising from the negligence and recklessness of the defendants, their agents and servants on the 17th day of October, 2007 which resulted in the death of Mr. Michael Ogheneovo Tafri (deceased) on the 24th day of October, 2007.
2. Claimants also claim the sum of N3, 300, 000.00 (Three million, three hundred thousand Naira) only being the cost or burial/funeral expenses; and traditional burial rites of passage for the said deceased whose corpse is till lying at the Braithwaite Memorial Hospital, Port Harcourt where it was deposited by the defendants, their agents and servants.
Parties exchanged pleadings after which the court heard their respective witnesses.
The claimant called one witness and the defendants called 2 witnesses.
After close of defendant’s case both parties through their respective counsel addressed the court.
The trial court in its judgment found that the claimant did not prove that the accident was as a result of the’ negligence of the defendants and dismissed the claim.
The claimant being dissatisfied with the said judgment on 2.1.2009 filed Notice of Appeal containing 8 grounds of appeal. The appeal was heard on Appellant’s brief alone by leave of court granted on 12.4.2010.
In their brief of argument, the Appellants formulated 5 issues for determination from their 8 grounds of appeal. The issues are:-
l. Did the learned trial Judge property consider or evaluate the evidence as presented by the parties, if not, what is the position or the law? [Grounds 1 and B].
2. Was that learned trial Judge right to place on the Appellants a more onerous burden of proof than that required by law having regard to the circumstances. This of case? [Grounds 2, 3 and 4]
3. Did the legal principle of res ipsa loquitor apply in the circumstances of this case? [Ground 5].
4 Did the Defendants admit liability in this case having regard to all the available evidence and can the conclusion reached by the learned Judge that they did not be correct? [Ground 6].
5. Was the Appellants case based on ibi jus ibi remedium or on sentiments? [Ground 7].
On issue one the learned counsel for the Appellants contended that the conclusions reached by the learned trial Judge on the crucial issues could not be valid having regard to the overwhelming evidence in the case, which were not evaluated. He submitted that although a claimant must depend on the strength of his case and not the weakness of the Defendant’s case he could in order to succeed rely on Defendant’s case. He cited ONISADU v. ELEWUJU (2006) 13 NWLR [pt.998] 517 at 529; AJO & ORS v. OKORO & ORS (1991) 7 NWLR [pt.203] 206 at 282 – 283.
He added further that the trial court did not weigh the evidence of the parties on an imaginary scale as prescribed in MOGAJI v. ODOFIN & ORS (1978) 4 SC 91 at 94. He submitted that the lower court adopted a wrong procedure or method for the evaluation of the evidence adduced hence the findings of facts should be set aside. He cited OLADEHIN v. CONTINENTAL ILE MILLS LTD (1978) 2 SC 23; OKWARA v. OKWARA (1997) 11 NWLR [pt.527] 160 at 169 170; ONYEKWELU v. ELF PETROLEUM NIGERIA LTD (2009) 2 – 3 sc 1 at 15. He finally urged the court to resolve issue 1 in Appellants, favour.
On issue 2 – learned Appellants’ counsel referred sections 135 – 137 of the Evidence Act and submitted the onus of proof was not static and that the onus shifted frrom one part to the other. He cited OSAWARU v. EZEIRUKA 19ZB) 517 SC 135.
He posited that the trial court placed a more onerous burden of proof in the way of justice for the Appellants than required by law. He cited JIBOSU v. KUTI & 2 ORS (1970 1 ANLR 423 at 430 – 431. He urged the court to resolve issue 2 in Appellants’ favour.
On issue 3 – learned counsel for Appellants submitted that the legal principle of res ipsa loquitor applied in the circumstances of this case. He referred to KUTI & ANOR V. TUGBOBO (1967) 1 ALL NLR 311; JOBOSO v. KOTI & 2 ORS (1970 1 ALL NLR 423; UDE v. BENTUT 14 WACA 533 and same other case.
On issue 4. He-submitted that the Defendants admitted liability Rule the conclusion of the trial Judge in his judgment was wrong. He stated that an admission could be both formal or informal, He cited NWANKWO v. NWANKWO (1995) 5 SCNJ 442 at 462; OKEKE v. OBIDIFE (1965) NMLR 113.
On issue 5 he submitted that the learned trial Judge was wrong not to have complied the principle IBI JUS IBI REMEDIUM in the circumstances of the case. He cited OYEKANMI v. NEPA (2000) 12 SC [pt. 1] 76, BELLO & 13 ORS v. A.G. OYO & AMAECHI v INEC & ORS (2008) 1 SC [pt.1] 36 at 133 – 134.
I have carefully considered the submissions of learned counsel for Appellants and the contents of the Record of appeal.
The pillar against which the claim of the claimants rested was the proof of negligence and recklessness of the Defendants, their agents and servants on the 17th day of October 2007 which allegedly resulted in the death of Mr. Michael Tafri on 24.10.2007.
It was not in dispute that Mr. Tafri was knocked down by a government vehicle driven by 2nd DW which led to Tafri’s death. What was in dispute before the trial court was whether the death was as a result of 2nd DW’s reckless and negligent driving? No eye witness was called in evidence by the claimant. The Defendants however called the 2nd DW who drove the vehicle that hit the sail deceased. 2nd DW in his evidence denied being reckless or negligent and described what happened at the scene of the accident.
The claimant on the other hand relied on documents. The Appellants are urging this Court to infer negligence from the documentary evidence before the court
It appears to me that the five issues formulated Appellant can be consolidated into one issue to wit. was the trial Judge right to have dismissed the claimant’s claim in the the evidence adduced before him?
I will consider the appeal in the light of the above issue.
The Appellants in their evidence tendered many documents in proof of their case out of which are –
(i) A letter dated November 23, 2007 with Ref.No.104/07 by Abdulateef Shale Muhammed.
(ii) A letter dated 20.11.2007 by Chidi Ekeji
(iii) A letter by the Permanent Secretary Government House dated 17.12.07
(iv) A letter with ref. No GA/ABIBO/008/2008 to the Chief of Staff Government House port Harcourt.
These letters were pleaded in paragraph 8 of the Statement, of claim and another in paragraph 9 of the Statement of defence. The letter dated 20.11.2007 written by Chidi Ikeji is very instructive. It reads “His Excellency,
RT HON. (CHIEF) ROTIMI AMAECHI
THE EXECUTIVE GOVERNOR
RIVERS STATE
GOVERNMENT HOUSE
PORT HARCOURT
YOUR Excellency Sir,
RE: NOTICE OF THE DEATH OF MR. MICHAEL TAFRI THAT WAS NEGLIGENTLY
KNOCKED DOWN BY YOUR PREDECESSOR’S CONVOY AND DEMAND FOR THE
PAYMENT OF COMPENSATION
We act as Solicitors to Mrs. Christy Tafri of Emuoha in the Emuoha Local Government Area of Rivers State (hereinafter referred to as “OUR CLENT, on whose behalf we write to you on the above subject matter as follows:
We wish to first and foremost on behalf of our firm and Client congratulate you on your resounding victory that was actualized by the erudite judgment of the Supreme Court having being ratified by God Almighty.
That our client who hails from Emuoha is a widow and a law abiding citizen of the State and the Country, had toiled relentlessly to fend and provide for her children since the death of the r father over- the years.
That to the rudest shock and bewilderment of our client, the dream of her life in enjoying the fruit of her labour/motherhood was shattered by your predecessor’s convoy wherein the convoy vehicle recklessly knocked down her son on the pedestrian path at the park overhead bridge.
That on that fateful day being the 17th day of October 2007 late Mr. Michael Tafri was returning from his publisher when the convoy of past Governor Celestine Omehia knocked him down. He was rushed down to Teme Trauma Hospital nearest to the scene of the accident where the then River State Commissioner for Health Dr. Silas Eneyo who was in the convoy and also witness… The victim should be treated and that the River State Commissioner was responsible. The victim late Mr. Michael Tafri who went into coma after being knocked down never regained consciousness until he died on the 24th day of October, 2007.
That upon his death, the then River State Commissioner for Health who was monitoring his condition further directed and proved ambulance for the body of our clients sonto be deposited at Braith Memorial hospital (BMH) Port Harcourt mortuary as a corpse of the River State Commissioner and requested to meet with our client.
That our client who was devastated and shattered by the news of the violent death or her first son literally passed out until she was subsequently revived within while the government of your Excellency had been enthroned.
That our client’s dead son is still in the custody of the Rivers state Government and all efforts by our client to get attention has not yielded any fruit hence our Chamber was consulted to ensure that justice is done to our client and her family.
That our client as much as your Excellency do also believes in the rule of law justice for all and has despite the unbearable loss of her dead son continued to pain her kinsmen and relations to wait for your Excellency to be notified formally believes fervently that your Excellency in his compassion and doggedness for emancipated of the down troddeh and triumph for justice will as a matter of utmost urgency ensure that our client is compensated and a decent burial organized for our late son.
That no amount of money or compensation will act as a substitute for the life of our client 28 years old son. The late young man was a the toast of his kin men maternally and paternally and the had all in unison looked up to him and death many of them may go into extinction save for the compensation that may used to sustain them.
We therefore demand amongst others a considerate amount of N8800,000.00 (Eight Hundred MillionNaira) to be as compensation/damages to our client. Finally, we wish your Excellency glorious reign in office.
Thank your,
Yours faithfully
DIVINE CHAMBERS
SIGNED
Chidi Ikeji, Esq.
CC: OUR CLIENT.”
The letter was admitted by Exhibit ‘D’ at the trial court.
Despite the serious allegations in the Exhibit ‘D’ to the effect that the death of the said deceased was caused by the reckless driving of the Governor’s convoy there was no denial from the Government until the Defendants filed their statement of Defence on 10.6.2008.
The only response from the Respondents was a letter dated 17.12.07 inviting the claimants for a meeting on 24.12.2007. see paragraph 9 of the Statement of Defence.
A Court should properly evaluate the evidence placed before it.
In MOGAJI & ORS v. ODOFIN & ORS (1978) 4SC 91 at 94 the Supreme Court had this to say.
“In short, before a judge before whom evidence is adduced by parties in a Civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he would put the evidence adduced by the plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is why it said that a Civil case is decided on the balance of probabilities.
See also FAGBENRO V. AROBADI (2006) 7 NWLR (Pt. 978) 174; OLUSILE VS MAIDUGURI METRO. COUNCIL (2004) 4 NWLR (Pt. 863) 290.

When a trial court fails to evaluate the evidence before it properly or at all an appellate court can intervene and re-evaluate such evidence. see ADEBAYO v. ADUSEI (204) 4 NWLR (pt 682) 44.
Interference by an appellate court could only occur-when and when he fails to evaluate such evidence at all or he fails to do properly. See ABISI v. EKWEALOR (1993) 6 NWLR (pt. 302) 643; OBODO VS OGBA (1987) 2 NWLR (PT.54) Page 1; OGBECHIE VS ONOCHIE (NO 2) (1988) 1 NWLR (pt. 70) page 370.
If the findings of fact of the trial court are not supported by the totality of evidence on record the appellate court can also interfere. See OBODO VS OGBA (supra) at page 1.

It has been contended by the Appellants that the trial court ought to have held that the Defendants through the documentary evidence and the subsequent invitation to meeting, and the meeting itself informally admitted liability.
Do the holding of the meetings and the unreplied letter of demand amount to implied admission under the Evidence Act?
Learned counsel for the appellant listed pieces of evidence which according to him should have tilted the scale of justice in his client’s favour. These piece of evidence are:-
“(i) CW1 in her witness deposition stated all the efforts of Dr Silas Eneyo, the then serving Commissioner for Health who called her and commiserated with the family assuring them that the government would compensate the family See specifically page 12 paragraphs 1, 3 &4.
(ii) The same Commissioner, an official of the government issued Exhibit A which is at page 18 of the records. The wordings are clear. The learned judge did not consider this Exhibit A. It was completely glossed over.
(iii) DW1 gave evidence confirming the accident and receipt of the letters tendered as Exhibit B, C-D & F. He also admitted issuing Exhibit F on behalf of the govt. and that various meetings had been held with the deceased family “on compassionate grounds”.
See page 19, 20, 21, 23, 25 – 26 of the records. See further page 86 lines 13 – 16. Indeed, the parties had been holding meetings aimed at setting this matter but did not reach any agreement particularly on the quantum of damages thus suit was filed.
(iv) DW1 confirmed that Dr. Eneyo went to see the deceased at Teme Clinic and that it was the Rivers state Government who conveyed the corpse of the deceased to BMH Mortuary on compassionate grounds. See page 86 line 12 – 14 & 19 – 20. My Lords, this must be added to the last three lines of Exhibit A at page 19 of the records.
(v) DW2 – also gave evidence admitting that he hit the deceased. See page 88 lines 16 – 18 but did not stop to assist him because they were in a convoy. page 88 lines 5 – 6.”
I do not agree, with due respect.
The claimants in their statement of claim had averred that chief Dr. silas Eneyo. The commissioner for Health was in the convoy of the Governor at the time of the accident. See paragraph 5 of the statement of claim. The CW1, Mrs. Christiana Chisa Tafri in her adopted written deposition also stated that Dr. Silas Eneyo called her on phone to admit liability on behalf of government. I have carefully gone through the entire record of proceedings. The Claimant did not call the said Dr. Silas Eneyo as a witness and did not give reasons for failing to do so. The Claimants had alleged reckless driving which led to the death of their son. He who asserts must prove. See Section 137 of Evidence Act. Seer also DAODU VS NNPC (1998) 2 NWLR (PT. 538) 355.
The claimants relied heavily on the weapon of admission of liability by the defendant/respondents. The defendants came to court calling one eye witness and denying that they admitted liability.
It was for the claimants to go beyond the documentary evidence tendered to call the vital witness who was an eye witness who allegedly called to admit liability on behalf of the defendants. Failure to call the Dr, Eneyo mentioned by the PW1 is fatal to the case of the claimants. see section 149(d) of the Evidence Act.
There was evidence that the deceased was hit by the vehicle driven by Cpt. Benson Eyeawa DW2, There was evidence that the deceased died as a result. But it was crustal to the claimants case that they must prove that the DW2 drove recklessly or negligently. This they filed to do. No witness was called to show that the DW2 over – sped having regard to the circumstances of the road or that he veered off the road to hit the deceased at the road-side. The doctrine of RES IPSA LOQUITOR does not apply in this case.
I find the judgment and conclusion of learned trial judge unimpeachable courts are not to base their judgments or extraneous matters or speculations AGHOLOR VS A.G. BENDE L STATE (1990) 6 NWLR (PT.155) page 142 at 145; ONUOHA VS THE STATE (2002) 1 NWLR (PT 748) 406; OMOZEGHIAN VS ADJARHO (2006) 4 NWLR (Pt. 969 ) 33.
This appeal fails in its entirety. All issues formulated by the appellants are resolved against the appellants. I dismiss the appeal accordingly.

ISTIFANUS THOMAS, J. C. A.: I read before now, the lead judgment of my learned brother, AWOTOYE JCA, just delivered, and I entirely agree that the appeal has no merit and I hereby dismiss the appeal.
Painful as the loss of a child may be, a court of justice will not grant a claim on sentiments simpliciter. In the instant appeal, the issue of negligence on the part of the respondents could not be established at the trial court. I have no good ground to disturb the findings and reasons reached by the trial judge.
Based on the above, and the fuller detailed conclusions in the lead judgment, the appeal is dismissed by me. I abide with consequential orders including costs.

EJEMBI EKO, J. C. A.: I read in draft the judgment just delivered by my learned brother, T.O. Awotoye, JCA. I just have a few comments to make in addition.
The case of the Claimants/Appellants, as put forward in paragraph 4 of the statement of claim (at page 5 of the Record), and the 1st claimant’s written deposition at page 11 of the Record, is that on 17th October, 2007, the deceased, OGHENEOVO TAFRI, was returning from a visit to his publishers when at the pedestrian path at the Park overhead Bridge on Aba Road, Port Harcourt a convoy of cars carrying the erstwhile Governor of Rivers State, Sir Celestine Omehia, while on official duty, drove with excessive speed/recklessness and against the movement of the traffic and knocked down the deceased who was immediately rushed to the nearest clinic, Teme Trauma Hospital, where he remained unconscious until he died on 24th October, 2007 as a result of the fatal injuries he sustained. They relied on plea of res ipsa loquitor. It is their plea that Dr. Silas Eneyo, the Commissioner for Health in the convoy/ was an eye witness and that he subsequently admitted the negligence of the Defendants/Respondents.
In the list of witnesses Dr. Silas Eneyo was the 2nd witness, and he was to be subpoenaed. He was not subpoenaed and he did not testify. Thus, raising a case for proper invocation of the presumption under section 149(d) of the Evidence Act. That is the presumption that Dr. Silas Eneyo was not subpoenaed and his evidence was withheld because the production of his evidence would have been unfavourable to the Claimants/Appellants. Dr. Silas Eneyo was material witness. Apart from his being an eye witness, he allegedly made admission on behalf of the Defendants/Respondents. The defence denied that Dr Silas Eneyo was part of the Governor’s entourage that day, and “that Dr. Silas Eneyo did not in any time admit that the Rivers State Government was responsible for the fate (death) of the deceased.” The admission having been repudiated the Claimants/Appellants, at the trial court, were duty bound to discharge the onus of proof placed on them by sections 135 – 137 of the Evidence Act. They did not discharge the burden of proof placed on them by these provisions. The learned trial Judge was therefore, right in holding at page 1.03 of the Record that –
The Claimants further contend that the 1st defendant admitted liability. There is no evidence of any such admission before me. I carefully examined all the documents tendered by the claimants and I am unable to find where the 1st defendant admitted liability.
The DW2 who drove the vehicle that hit the deceased did not admit any negligence. He vehemently denied any negligence on his part.
The learned trial .Judge also held that from available evidence the Claimants are not entitled to the plea of res ipsa Loquiter, and added at page 103
This is because the Claimants were not able to prove the circumstances, the nature and extent of the accident. The CW.1 did not witness the accident. Furthermore, the evidence of the defendants that the deceased suddenly entered the road, that there is no pedestrian walkway on Isaac Boro Park Flyover and that the deceased was not supposed to be on the bridge, was not rebutted. It is trite that in civil cases the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being had to the presumption which may arise from the pleadings.
These findings of fact are amply supported by credible evidence on the Record. In particular the evidence of DW.1 at page 86 that –
It is only a person who is on drugs that can be walking on the flyover where there is no pedestrian way;
was not rebutted. It was further corroborated by DW.2’s evidence at page 88 that –
A normal human being is not supposed to be on the top of the bridge. The accident did not happen at the foot of the bridge. The deceased suddenly jumped into the road.
The plea of res ipsa loquitor was anchored on the averment that the deceased was killed on the pedestrian walkway and that the defendants drove against the traffic. These facts were not proved. The trial Judge was therefore night in holding that Claimants/Appellants can not rely on the plea of res ipsa loquitor.
The evidence of DW.2, the driver who hit the deceased’ to the effect that the deceased suddenly jumped unto the road on the over head or flyover bridge and that he tried all he could to avoid hitting him and in the process of avoiding the deceased his car “hit the railing of the bridge and it was that force that hit the deceased” was not rebutted. They remain unscathed’
I am satisfied, upon reading the Record of appeal and the Briefs of Argument, that the trial Judge did proper evaluation of the evidence in the findings of fact she made’ The evaluation accords with the principle in MOGAJI v. ODOFIN (1978) 4 SC 91. When it comes to findings of fact, the trial Judge is almost sacrosanct in that regard. The appellate court will not generally disturb a finding of fact based on the credibility of witnesses. See AKINOLA v. OLUWO (1962) l ALL NLR 224. The duty of ascribing probative value to evidence is a matter primarily for the court of trial and the Court of Appeal will not substitute its own views of the disputed facts for the views of the trial court. see BALOGUN v. ABGOOLA (1974) 10 SC 11. To warrant interference with findings of fact, the appellant must show compelling erroneous appraisal of facts or erroneous conclusion by the trial Judge, or that the findings or conclusions were perverse.
The Appellants had predisposition to gold digging. Or, is it extortion from the Government? They resorted to emotions and sentiments, to the utter neglect of calling hard facts, after rejecting amicable settlement out of court. The 1st Appellant, CW.1′ who was the sole witness, had no regard for basic truths. It was her case (on oath) that the deceased was her first son (at page 11).” However, also on oath at page 83, she testified, under cross-examination; that the deceased was her third son, with two elder brothers and also two younger siblings. She was not an eyewitness and yet she made so much fuss of the deceased being at a pedestrian walkway on a flyover where in deed there was none. She cloud not have been a credible witness. The trial court, rightly, did not believe her.
The appeal, in my view, has no substance and it is hereby dismissed,