GALBA LIMITED v. OBINNA OKORO
(2011)LCN/4681(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/PH/245/2006
RATIO
INTERFERENCE WITH THE FINDINGS OF THE COURT: THE BASIC PRINCIPLE ON FINDINGS OF FACT; FACTORS THAT WILL BE CONSIDERED BY THE APPELLATE COURT IN DECIDING WHETHER TO INTERFERE WITH THE FINDINGS OF THE LOWER COURT
The basic principle on findings of fact is that an appellate court’ as this Court, will not interfere with the findings of fact made by the trial court unless the findings of fact are perverse, or are not supported by the evidence on record. See AJIBULU V. AJAYI (2004) 11 NWLR (PT.885) 458; OGIDI v. THE STATE (2003) 9 NWLR (PT.824) 1; OKOYE V. OBIASO (2010) 41.2 NSCQR 958 at 98. To enjoy this sacrosancy the appeal court usually considers the following factors, that is:- i. The totality of the evidence before the trial court ii. Whether the trial court accepted or rejected any piece of evidence upon proper or correct perception of it. iii. whether the trial court properly evaluated the evidence or correctly approached the assessment of the probative value of the evidence before it. The trial court does this by placing on an imaginary scale the set of evidence given by a party against the evidence given by the other party in order to arrive at his preference of evidence of one party to the other. see MOGAJI V. ODOFIN (1978) 4 SC 91 at 93. iv. It is not every thing the trial court places on the imaginary scale. In deciding what goes on the scale the trial court balances only the probative value or essence of evidence, the credibility and quality of the evidence. See ONWU V. EDILA (1989) 1 NWLR (PT. 96) 182 at 208 -209. v. Finally, the appeal court considers whether the trial court appreciated upon preponderance of evidence which side of the scale weighed higher having regard to the burden of proof.” PER EJEMBI EKO, J.C.A.
BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF LIES ON THE PLAINTIFF TO DISCHARGE HIS CASE ON THE BASIS OF PREPONDERANCE OF CREDIBLE EVIDENCE
It is trite, as submitted for the Appellant on the authority of ELIAS v. DISU (1962) ANLR 215, A.G. ANAMBRA STATE V.DNUSELOGU ENT. (1987) 4 NWLR (PT. 66) 547 and section 137 of the Evidence Act, that the Plaintiff must discharge his burden of proof on the basis of preponderance of credible evidence. I will also add, per section 135 of the Evidence Act, that whoever, the plaintiff inclusive, desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. I agree with the Appellant that the Plaintiff who fails, on the balance of probabilities, to prove his case successfully is not entitled to judgment and his claim must be dismissed. See IHEANACHO V. CHIGERE (2004) 17 NWLR (PT.901) 130 AT 160, NDUKURE V. ACHA (1998) 6 NWLR (PT.552) 25 at 34. Section 136 of the Evidence Act says that the burden of proof in every civil suit lies on that person who would fail if no evidence at all were given on either side. If on the balance of probabilities the preponderance of credible evidence in favour of the case of one party out weighs the evidence of the other’ the party on whose side the preponderance of credible evidence tilts is the party who is entitled to the judgment of the court on a particular issue. PER EJEMBI EKO, J.C.A.
FINDINGS OF THE COURT: WHEN ARE THE FINDINGS OF THE COURT SAID TO BE PERVERSE
For the respondent it is submitted, on authority of NKADO V. OBIANO (1997) 50 LRCN 1084, that a finding is said to be perverse when it runs counter to the evidence and the pleading or where it has been that the trial judge takes into account matters which he ought not to have considered or shutting his eyes to the obvious. In principle I agree with this submission. That it the law. PER EJEMBI EKO, J.C.A.
DUTY OF THE COURT: FUNCTION OF THE APPELLATE COURT
The function of this Court, as an appellate court, on question of facts is mainly limited to seeing whether or not there was evidence before the trial court upon which its decision on facts was based; whether it wrongly accepted or rejected evidence tendered at the trial; whether the evidence called by either party was put on either side of an imaginary scale and weighed one against the other. In other words, whether the trial court correctly assessed the evidence before it; whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. See AGBANIFO V. AIWEROBA (1988) 1 NWLR (PT. 70) 325 at 339; MOGAJI V, ODOFIN (supra). PER EJEMBI EKO, 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 OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
GALBA LIMITED Appellant(s)
AND
OBINNA OKORO
(Carrying on business under the name and Style of Ezenwa Okoro & Co. Chartered Accountants) Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The claim of this Respondent, as the plaintiff endorsed on the writ against the Appellant was as follows:-
“1. The sum of N10,193,114.76 (Ten Million One Hundred and Ninety Three Thousand, One Hundred and Fourteen Naira, Seventy Six Kobo) being professional fee due from the Defendant to the plaintiff as at September 19,2002, which the Defendant has failed to pay inspite of repeated demands.
2. Interest on the said N10,193,114.76 at the rate of 21% per annum from September 19, 2002 till the day of judgment and thereafter at the rate of 10% per annum until the debt is liquidated.”
The claim, originally brought on the Undefended List, was transferred to and heard on the general cause list. The parties, by consent, did not file formal pleadings as such. They called evidence on their various affidavits, which were materially in conflict. The Respondent, the plaintiff, called three witnesses. The appellant, as the defendant, also called three witnesses. A number of documents, totaling about 30 in all were tendered in evidence. Thereafter, the parties through their respective counsel filed and exchanged written submissions. In his resersed judgment delivered on 25th April, 2005, the court below (coram: W. A. Chechey, J.) held that on the balance of probabilities the plaintiff, the respondent now, had established his claim and was entitled to judgment as follows:-
“1. The sum of N2,982,422.57 being professional fees for services rendered to the defendant, the appellant as at 19th September, 2002.
2. Interest on the said N2,982,422.57 at the rate of 10% per annum from 19th September, 2002 to the date of judgment i.e. 25th April, 2005. That is N836,818.68 plus the sum of N2,982,422.57. The total judgment sum of N3,819,241.25.
3. Post judgment interest at 10% per annum on the judgment sum of N3,819,241.25 until paid up.”
Aggrieved by the judgment, the defendant, as the appellant, filed his appeal on 13th May, 2005. The Notice of Appeal, at pages 238 – 240 of the Record, has three grounds of appeal. The grounds, shorn of the particulars, are as follows:-
GROUND ONE
The court erred in law when it held that the plaintiff has satisfactorily proved and is therefore entitled to judgment in the sum of N2,982,422.57 (Two Million, Nine Hundred and Eight-Two Thousand, Four Hundred and Twenty-Two Naira, Fifty Seven Kobo as professional fees.
GROUND TWO
The court fell into error when it made a finding on an issue that was not canvassed before it by either of the litigants to wit: that the plaintiff recovered N14,912,112.10 from Eko Bank and Diamond Bank and therefore entitled to 20% thereof as fee.
GROUND THREE
The judgment of the trial court or as against the overlight of evidence.
The parties exchanged briefs of argument. In the appellant’s brief of argument filed on 22nd May, 2007 but deemed filed on 17th September, 2007 two issues for determination have been formulated from the three grounds of appeal. The issues are:-
3.1.1 Whether the learned trial judge was correct in holding that there was sufficient connection between the work of the Respondent and the refunds made by the Banks.
3.1.2 Whether from the totality of pleadings and evidence of the Respondent, the court was right in holding that the plaintiff was entitled to compensation on a quantum meruit basis.”
I have carefully perused the briefs exchanged. I will start with issue 2 first. The Respondent is on firm grounds in contending “that issue 2 is an unnecessary academic exercise.” Expatiating further on this, it is submitted for the Respondent that “it is absolutely untrue that the learned trial judge held that the Respondent is entitled to 20 percent of N14,912,112.92 on quantum meruit basis.” Appellant’s counsel had submitted, quite erroneously for the matter, that “the learned trial judge erred in law when he held that the Respondent is entitled to 20% of N14,912,112.92 being the total sum – on quantum meruit basis.”
This issue of quantum meruit was first raised in the address of H. A. Bello Esq. of counsel to plaintiff at page 218 of the record where he submitted in alternative to writ:-
“Thus, we submit that whether the claim of the plaintiff for payment of 10% for discoveries is understood as being in consonance with Exhibit A, or as one in Quantum meruit or quasi contract or by any other name, the plaintiff is entitled to its award as reasonable remuneration for his work and services to the defendant. See International Nigeria Build Const. Co. Ltd. v. Giora (supra) at pages 111 to 112, paragraphs B to F, ratio 13.”
The court below addressed the issue at pages 231-232 of Record and had effectively dismissed it, holding that there was no call on the court “to consider the view that the plaintiff should be remunerated (on) quantum meruit. The court distinguished the case of INTERNATTONAL NIGER BUILD CONST. CO. LTD V. GIORA (2003) NWLR (PT.836) 69 on the facts, from the case at hand on the ground, inter alia, that in the instant case the plaintiff, himself, drew up Exhibit A and specifically provided therein in clause 5 on how he would be paid by the Defendant/Appellant for his services. That is 20% of total discoveries and recoveries” of all sums wrongly debited to his client, the appellant’ And so’ the court went of on, “if in the face of the relatively meager recoveries as opposed to the total discoveries, the plaintiff is not happy with what he may get in view of aforestated clause 5, he has no one to blame but himself.” The court below found that in INTERNATTONAL NIGER BULD CONST. CO. LTD case (supra) the plaintiff was awarded compensation on quantum meruit basis having completed the work contracted to him for which “there was no clear contractual term upon how he should be remunerated for the work which the court found that he had in fact done.”
In a nutshell the court below did not award any sum for the plaintiff/respondent on quantum meruit basis. The court had infact dismissed that invitation to award 10% of the sums discovered by the plaintiff to have been wrongly debited to the defendant /Appellant by the Banks, which sum had not actually been recovered’ The holding of the court is to the effect that the plaintiff was entitled on the basis of clause 5 of Exhibit A, to be paid 20% of sum “discovered and recovered”. It refused to award any sum on the basis of 10% of “discoveries” on qantum meruit basis. This order favours the appellant. It is against the plaintiff respondent who seems to accept it, since it was not appealed. The appellant can not be aggrieved by an order or decision favourable to him’
This issue having not been made out’ but erroneously put up, by the Appellant is hereby resolved against the Appellant in favour of the Respondent.
The next issue is, whether the learned trial judge was correct in holding that there was sufficient connection between the work of the Respondent and refunds made by the Bank? This issue formulated from ground one of the grounds of appeal’ in substance’ questions the correctness of finding of fact made by the learned trial judge. The basic principle on findings of fact is that an appellate court’ as this Court, will not interfere with the findings of fact made by the trial court unless the findings of fact are perverse, or are not supported by the evidence on record. See AJIBULU V. AJAYI (2004) 11 NWLR (PT.885) 458; OGIDI v. THE STATE (2003) 9 NWLR (PT.824) 1; OKOYE V. OBIASO (2010) 41.2 NSCQR 958 at 98.
To enjoy this sacrosancy the appeal court usually considers the following factors, that is:-
i. The totality of the evidence before the trial court
ii. Whether the trial court accepted or rejected any piece of evidence upon proper or correct perception of it.
iii. whether the trial court properly evaluated the evidence or correctly approached the assessment of the probative value of the evidence before it. The trial court does this by placing on an imaginary scale the set of evidence given by a party against the evidence given by the other party in order to arrive at his preference of evidence of one party to the other. see MOGAJI V. ODOFIN (1978) 4 SC 91 at 93.
iv. It is not every thing the trial court places on the imaginary scale. In deciding what goes on the scale the trial court balances only the probative value or essence of evidence, the credibility and quality of the evidence. See ONWU V. EDILA (1989) 1 NWLR (PT. 96) 182 at 208 -209.
v. Finally, the appeal court considers whether the trial court appreciated upon preponderance of evidence which side of the scale weighed higher having regard to the burden of proof.”
The appellant who complains or raises on issue whether the trial court was correct in the findings of fact made against him has the burden of showing that the evidence before it when all the foregoing factors are taken into consideration.
It is trite, as submitted for the Appellant on the authority of ELIAS v. DISU (1962) ANLR 215, A.G. ANAMBRA STATE V.DNUSELOGU ENT. (1987) 4 NWLR (PT. 66) 547 and section 137 of the Evidence Act, that the Plaintiff must discharge his burden of proof on the basis of preponderance of credible evidence. I will also add, per section 135 of the Evidence Act, that whoever, the plaintiff inclusive, desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. I agree with the Appellant that the Plaintiff who fails, on the balance of probabilities, to prove his case successfully is not entitled to judgment and his claim must be dismissed. See IHEANACHO V. CHIGERE (2004) 17 NWLR (PT.901) 130 AT 160, NDUKURE V. ACHA (1998) 6 NWLR (PT.552) 25 at 34. Section 136 of the Evidence Act says that the burden of proof in every civil suit lies on that person who would fail if no evidence at all were given on either side. If on the balance of probabilities the preponderance of credible evidence in favour of the case of one party out weighs the evidence of the other’ the party on whose side the preponderance of credible evidence tilts is the party who is entitled to the judgment of the court on a particular issue.
Having said all these, the question then is; was there sufficient connection between the work the respondent, as the plaintiff, did in this case and the refunds the Banks made to the Appellant, as the defendant? The court, upon evaluation of evidence at pages 228 – 229 of this Record, found at page 229 of the Record that “refunds made to the Defendant by the Bank were connected to the plaintiff’s work.”
Clause 5 of the Exhibit A’ containing the terms of payment for the services the defendant/Appellant contracted the plaintiff/respondent to do for it, says that the fees for the “assignment are result driven” and that the plaintiff/respondent would be paid 20% of total discoveries and recoveries he was able to get from the banks for the wrong or unlawful or unauthorized debits to the Appellant’s accounts with them.
The lower court earlier held at page 227 of the Record that the line of defence put up by the appellant that time was of essence of their contract with the plaintiff/respondent was untenable and “that the contract between the parties was subsisting when the recoveries were made” and it continues” through the period of the recoveries, January and February 2001, when the Defendant used forms suggested by the plaintiff to demand refunds from its banks.” The court below found at page 278 that Appellants letters Exhibits E, F and G, as admitted by DW1, were written to the banks in consequence of the plaintiff/respondent’s work in Exhibit D. The evidence of DW1, at pages 172 and 173 of the Record, relied upon by the court below, is:-
It is true that the letters of introduction Exhibits E, F and G were written to the banks after the plaintiff had written and submitted his final report, Exhibit D. ——-
It is true that by Exhibit H the Defendant began to deal directly with the Banks——
The sum we claimed form International Bank Ltd, from Exhibit H, is N10,256,827.76 kobo; and also N5,564,758.14 kobo; and N3,384,998.76 kobo. As to whether we lifted the amounts we claimed from Exhibit D.I can see that only the amount of N5,564,758.14 kobo is related to it.
From pages 14 and 17 of Exhibit D the sum of N3,384,998.76 kobo was also from the report. But we never made use of the report in dealing with the banks up till now. The plaintiff is yet to complete the work are gave him.”
Upon very critical analysis or assessment of the evidence of the DW1 by the court below at page 228 of the Record, it found that the appellant made use of the respondent’s final report, Exhibit D, in making claims for refunds from the banks and held that the figures used by the appellant to make claims for refunds for the banks “were related to the plaintiff’s work.”
At page 229 of the Record the court below further held that the appellant, as defendant,
“benefited from discussions with the plaintiff and applied some of his ideas, even if in modified form, in making demands for refunds on 14.12.00.”
The defendant/appellant had posited that on 14.12.2000 it wrote, independently of the plaintiff/respondent, asking for interest waivers, and that the banks approved and refunded money to it as “interest waivers.” These the court found to be mere semantics or euphemision for recoveries related to the plaintiff’s work.
The issue is whether there was sufficient connection between the refunds made by the banks to the Appellant and the work of the plaintiff/respondent from which the latter was entitled to be paid 20% of the same. This is a question of fact. And on facts the trial judge is said to be the best judge, and that his findings are presumed to be correct unless they are shown to perverse or not based on plausible exercise of judicial discretion. See WILLIAM V. JOHNSON 2 WACA 253.
For the respondent it is submitted, on authority of NKADO V. OBIANO (1997) 50 LRCN 1084, that a finding is said to be perverse when it runs counter to the evidence and the pleading or where it has been that the trial judge takes into account matters which he ought not to have considered or shutting his eyes to the obvious. In principle I agree with this submission. That it the law.
Agreeing with the respondent, as I do, I do not think that the finding by the court below that the reversal of N14,912,112.92 into the accounts of the appellant by the affected banks were recoveries related directly to or based on the work of the respondent is perverse, or in any way unreasonable, The findings are based on credible evidence before that court, arrived at upon dispassionate evaluation of the evidence before it. Dw1’s evidence on this aspect of the matter before the court below lends credence to what the respondent was able to prove. This court can not substitute its own views on the witnesses before the trial court for those of that court. See ASANI BALOGUN V. ALIMI AGBOOLA (1974) 1 ALL NLR (PT.2) 66; MILITARY GOVERNOR WESTERN STATE V. AFOLABI LANIBA & ANOR (1974) 1 ALL (PT 2) 174. The function of this Court, as an appellate court, on question of facts is mainly limited to seeing whether or not there was evidence before the trial court upon which its decision on facts was based; whether it wrongly accepted or rejected evidence tendered at the trial; whether the evidence called by either party was put on either side of an imaginary scale and weighed one against the other. In other words, whether the trial court correctly assessed the evidence before it; whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. See AGBANIFO V. AIWEROBA (1988) 1 NWLR (PT. 70) 325 at 339; MOGAJI V, ODOFIN (supra).
On all principles on the findings of fact by the trial court and the function of the appellate court in relation thereto I do not think I should interfere with or disturb the finding of fact by the court below that the reversal of N14,912,112.92 into the appellants accounts by the affected banks were recoveries related directly to the discoveries made by the plaintiff/respondent. The finding is reasonable upon plausible exercise of the judicial discretion by the trial court. It is not perverse.
The summary of all I have been saying on this issue is that this issue should be, and is hereby, resolved against the appellant. The totality of all I have said on the two issues formulated is that there is no substance in the appeal.
Consequently, it is hereby dismissed. The judgment of the court below in suit No.PHC/1938/2003 delivered on 25th April 2005 by W. A. Chechey, J. including the orders therein, is hereby affirmed.
The respondent is entitled to costs of this appeal which I hereby assess at N50,000.00. Appellant shall pay the said costs to the Respondent.
ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother, Eko, JCA, just delivered. I entirely agree that the appeal has no merit and is dismissed by me. I affirm the decision of the trial judge delivered on 25th April, 2005.
I abide with consequential orders including costs.
T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment of my learned brother EJEMBI EKO JCA.
I am in full agreement with the reasoning and conclusion therein. I agree this appeal lack merit and should be dismissed.
I abide by the orders on costs as made in the lead judgment.
Appearances
C. C. Okoro Esq. with M. Sekibo, Esq.For Appellant
AND
H. A. Bello, Esq with N. L. Anukan (Miss), H. Aleruchi and K. B. LukeFor Respondent
