WALE ONIGBINDE v. S.B. OLATUNJI GLOBAL NIG. LIMITED
(2015)LCN/8014(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of November, 2015
CA/L/283/2014
RATIO
EVIDENCE: BURDEN OF PROOF; WHO HAS THE BURDEN OF PROOF
The position of the Law is that he who asserts must prove See Section 137 Evidence Act. per. UZO I. NDUKWE-ANYANWU, J.C.A.
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CIVIL CASES AND HOW THE BURDEN MUST BE DISCHARGED
In civil cases the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Iman vs. Sheriff (2005) 4 NWLR pt.914 pg.80, Elias vs. Omobare (1982) 5 SC pg.28, Agbi vs. Ogbeh (2006) 11 NWLR pt.990 pg.65. per. UZO I. NDUKWE-ANYANWU, J.C.A.
EVIDENCE: WHETHER WHAT IS ADMITTED REQUIRES FURTHER PROOF BY EVIDENCE
It is trite that what is admitted does not require further proof by evidence whether oral or documentary See Olagunju vs. Oyeniran (1996) 6 NWLR Pt. 453 pg.127, Akpan vs. Umoh (1999) 11 NWLR pt.627 pg.349, Agbanelo vs. Union Bank of Nigeria Ltd (2000) 4 SC pt.1 pg, 233, Gabani vs. Ilori (2002) 14 NWLR pt. 786 pg.78. per. UZO I. NDUKWE-ANYANWU, J.C.A.
EVIDENCE: ADMISSION; WHETHER AN ADMISSION OF FACT BY A PARTY HIS INTEREST IS ADMISSIBLE IN EVIDENCE AND WHETHER IT NEEDS FURTHER PROOF
An admission of fact by a party against his interest is admissible in evidence and need no further proof. See Awote vs. Owodunni (No. 2) (1987) 2 NWLR pt.57 pg. 367, Iso vs. Eno (1999) 2 NWLR pt. 590 pg. 204, Atanze vs. Attah (1999) 3 NWLR pt. 596 pg. 647. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
WALE ONIGBINDE Appellant(s)
AND
S.B. OLATUNJI GLOBAL NIG. LIMITED Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on 26th day of November, 2013.
By a writ of summons together with a statement of claim dated the 12th day of August, 2009, the Plaintiff now Respondent claimed as follows:-
“a. A declaration that the non-supply of the lead ore by the Defendant to the Claimant pursuant to a contract of agreement between the Claimant and Defendant amounts to a breach of contract.
b. The sum of Two Million Naira Only (N2,000,000,00) (Naira being money paid to the Defendant for the supply of 30 metric tons of lead ore which the Defendant failed/neglected or refused to supply.
c. Interest rate of 22% on the said sum of Two Million Naira from February 2008 until judgment is delivered,
d. the sum of Five Hundred Thousand Naira only (N500,000.00) for breach of contract.”
The Defendant now Appellant filed a statement of defence and counter-claim dated 17th day of February, 2010 wherein he sought the following reliefs:-
“i. The sum of N1,900,000,00 (One Million Nine Hundred Thousand Naira only) being the total sum of money paid by the Defendant out of
his personal funds on behalf of the Claimant to different creditors on 6th day of December 2007, 8th day of April 2008, 22nd day of July, 2008 and 4th day of August, 2008 which sums remain unpaid by the Claimant.
ii. Interest on the said sum at 21% per annum from 30th day of September, 2009 until judgment is delivered and thereafter at the rate of 10% per annum until judgment sum is liquidated.
iii. The costs of this action assessed at Five Hundred Thousand Naira Only (N500,000.00).”
The Respondent further filed a reply to the Statement of Defence and Defence to Counter-claim.
?The case of the Respondent at the lower court was that sometime in December 2007, it entered into a verbal agreement with the Appellant for the supply of 30 metric tonnes of lead ore within a month in consideration of the sum of Two Million Naira Only (N2,000,000,00). The Respondent paid the sum of N2,000, 000.00 (Two Million Naira Only) through installmental payments to the Appellant for the supply of the 30 metric tonnes of lead ore. Several months passed but the ore was not supplied. In a bid to settle amicably, the managing director of the Respondent reported the matter to the Appellant’s
father who instructed/advised that the transaction between the parties be put in writing thus the signing of the simple contract on 29th day of July, 2008 [also known as Exhibit SB 01). The Appellant’s father also pleaded with the Respondent for extension of time to enable the Appellant supply the ore. Despite the Appellant’s father intervention, the Appellant did not honour Exhibit SB 01, hence the commencement of this suit at the lower court.
The Appellant in his defence argued that on the 6th day of August 2007, he entered into an agreement with the Respondent for the supply of 100 metric tonnes of lead ore at a contract sum of Five Million Naira only (N5,000,000,00) for which the Respondent made an initial deposit of one Million Naira Only (N1,000,000.00).He referred to Exhibit SB 03. Prior to the performance of the contract, the Respondent varied the written contract by requesting for the supply of 20 tonnes of lead ore and 20 tonnes of copper ore which is to cost the total sum of Two Million Eight Hundred Thousand Naira Only (N2,800,000,00). In December 2007 the Respondent paid the balance of One Million and Eight Hundred Thousand Naira only
(N1,800,000.00). He argued that Exhibit SB 01 was simply the end product of an account reconciliation meeting and to support this assertion the Appellant tendered Exhibit SB 06 which is the front page paper of Exhibit SB 01 which he asserts was intentionally withheld by the Respondent. In his Counter-claim, the Appellant argued that he paid the total sum of One Million Nine Hundred Thousand Naira Only (N1,900,000.00) to the Respondent’s creditors on the Respondent’s behalf which sum remains unpaid by the Respondent.
At the conclusion of the trial and address of counsel the learned trial judge entered judgment for the Respondent. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal consisting of Four [4] grounds of appeal. In accordance with the rules of this court, parties filed their brief of arguments. The Appellant’s brief was filed on 29th day of April, 2014. The Respondent’s brief was filed on 16th day of May, 2014. The Appellant’s reply brief was filed on 6th day of June, 2014.
The Appellant in his brief formulated 2 (two) issues for determination viz:-
“1. Whether there was sufficient evidence provided by the Respondent to prove the
existence of a verbal agreement for the supply of 30 metric tonnes of lead ore at the contract price of N2,000,000.00 (Two Million Naira Only) between the Appellant and the Respondent. (Arising from Grounds 1, 2 and 3 of Notice of Appeal)
?
ii. whether the trial court was right to dismiss the Appellant’s Counter-claim taking cognizance of the evidence placed before the court. (Arising from Ground 4 of the Notice of Appeal)”
The Respondent on its own part adopted the issues formulated by the Appellant in this appeal. Thus this appeal will be determined in terms of the above issues.
?
ISSUE 1
Learned Counsel for the Appellant submitted that the general burden of proving in this case as well as the evidential burden of proving the existence of the agreements relied upon by the Respondent lies on the Respondent. He also contended that the Respondent can only discharge this burden by evidence adduced by the Respondent and not by any weakness or deficiency in the case of the Appellant. He relied on Sections 131 to 133 of the Evidence Act 2011 and the case of Metibaiye vs. Narelli Int’l Ltd (2009) 16 NWLR (Pt 1167) 326. It is his further contention that rather than
determining the case by the evidence adduced by the Respondent the learned trial judge decided the case on the weakness or perceived weakness in the case of the Appellant such as non-production of a better agreement and failure to prove forgery beyond reasonable doubt. It is his contention that by the approach adopted by the trial judge, the general burden of proof was wrongfully placed on the Appellant thereby occasioning breach of the Appellant’s fundamental right to fair hearing and miscarriage of justice.
He further contended that the court misunderstood the case of the Respondent when it relied on Exhibit SB01 as the documentary version of the oral argument. According to Counsel, the Respondent’s case was that Exhibit SB 01 was a settlement agreement made after the oral agreement had failed. He argued that the reliance of the trial judge on Exhibit SB01 as the documentary version of the oral argument has occasioned a miscarriage of justice as the trial judge dispensed with the statutory burden of proof on the Respondent to prove the existence of the oral agreement as it assumed that Exhibit SB01 was the written version of the oral agreement. He also argued
that, if the court had understood the case of the Respondent and properly evaluated the evidence before the court vis-a-vis the content of Exhibit SB01, the court would have noticed that there was no such contract for the supply of 30 metric tonnes for Two Million Naira Only [N2,000,000.00) stated in Exhibit SB01 in terms of the oral agreement claimed by the Respondent. He tried to portray this point by highlighting series of inconsistency between the content of Exhibit SB01 and the oral agreement as put forward by oral evidence before the court. Counsel therefore contended that the Respondent did not adduce sufficient evidence in respect of any oral agreement between the parties. He concluded by contending that the court failed to properly evaluate the evidence put forward by the Appellant thereby occasioning a miscarriage of justice.
On the other hand, Learned counsel for the Respondent submitted that it had proved the existence of a verbal agreement through its two witnesses who testified to the facts leading to this suit and tendered the Respondent’s statement of account evidencing payment of Two Million Naira Only (N2,000,000.00) to the Appellant. Also
through the admission of the Appellant in paragraph 7 of his statement on oath, whereby he admitted receiving the sum of N1,990,000.00 less N10,000.00 petty cash from the Respondent. His contention is that having admitted the fact of payment of the sum of One Million Nine Hundred and Ninety Naira only (N1, 990,000.00) that fact need no further proof. He relied on the case of N.A.S LTD & Anor vs. Uba Plc & Anor (2005) 38 WRN 6; Friday Kamalu & Ors vs. Uka Umunna & Ors (1997) 5 NWLR (Pt 505) 321.
On the issue of forgery raised by the Appellant, Counsel submitted that the Appellant did not discharge the burden of proving forgery which burden lies on him and can only be discharged by evidence beyond reasonable doubt. He relied on Section 135 of the Evidence Act 2011 and the cases of N.A.S & 3 Ors vs. Ishie & 16 Ors (2005) 40 WRN 54 @ 58; N.A.S Ltd & Anor vs. UBA Plc & Anor (Supra).
On the claim of the Appellant that he supplied the goods for which were paid, the Respondent’s Counsel contended that there was no evidence of such supply. According to him, the way bills relied upon by the Appellant clearly failed to show that the goods
were ever received or the address where they were supplied. Also in the Appellant’s oral evidence, the Appellant failed to indicate who received the goods from him and at what address it was delivered. He relied on the case of Okonkwo vs. Okonkwo (2003) 51 WRN 112; Musa vs. State (2005) 46 WRN 34. Thus the court was right in rejecting the case of the Appellant and giving judgment to the Respondent having proved his case on the balance of probability as required by law.
On the issue of contradiction in Exhibit SB01 highlighted by the Appellant, Counsel contended that such contradiction is immaterial and submitted that for the contradiction to be fatal it must be material. He re-emphasized the validity of the oral contract between the parties.
In his reply, the Appellant relied on Order 9 Rule 2 of the Court of Appeal Rules 2011 and contended that the argument in paragraph A1 of the Respondent’s brief of argument [on the issue of Appellant’s admission) does not arise from the ground of appeal and should be discountenanced. Alternatively, counsel argued that there was no case of admission on the part of the Appellant as contended in paragraph A1 of the Respondent’s
brief. To support his argument counsel reproduced the said paragraph 7 of his witness statement on oath and relied on the definition of admission and the case of RECTOR, Kwara Poly vs. Adefila (2007) 15 NWLR (Pt 1056) 42 @ 112.
Furthermore counsel contended that the Respondent’s argument on contradiction in the way bills does not arise from the judgment of the lower court or the Notice/Ground of appeal and should be discountenanced. He referred the court to the case of Mr. Valentine & Anor vs. PDP & Or s (2010) 9 NWLR (Pt 1200) 601 @ 631-632; Faloughi vs. FIC Ltd (2010) 10 NWLR (pt 1203) 656 @ 663-664. In the alternative counsel also submitted that the way bill is consistent and further strengthen the case of the Appellant rather than contradict the case of the Appellant at the trial court. He also argued that the absence of receipt of acknowledgement and address of where he supplied the goods are not material. He relies on Musa vs. State (supra).
With regards to the Respondent’s argument in paragraph A6 of its brief, Counsel abhors what he claimed to be an attempt by the Respondent to smuggled into the Appeal, evidence that was not before the trial court.
He also contended that the Respondent had conceded that they were contradiction in the case of the Respondent at the trial court.
The crucial question in this Appeal is whether there was a valid contract between the parties which the court can enforce.
The Respondent in the lower court claimed that he entered a contract with the Appellant. The Appellant was supposed to supply to the Respondent 30 metric tonnes of lead ore upon payment of Two Million Naira Only (N2,000,000,00). The Appellant was to supply within 30 days of payment of the agreed sum. The Respondent proved that he paid to the Appellant a total of Two Million Naira Only (N2,000,000,00) in installments. This installmental payment was evidenced by the Statement of Account tendered by PW 2 – Mrs. Simisola Adebayo from Guarantee Trust Bank (GTB). See Omorhririhi vs. Eneter (supra) where:-
The elements of a valid Oral Contract were recapped:-
“(i). There was an offer of supply of 30 Metric Tonnes of lead ore by the Appellant
(ii). The money consideration of Two Million Naira Only (N2,000,000,00) only was paid to the Appellant.
(iii). There was clearly an intention to create legal relationship and
(iv). Both
parties have the capacity to contract,
(v). The Appellant was to supply the lead ore within one month. (pg. 7 of the Record of Appeal-paragraph 2-5 of the Respondent’s statement on oath).
The payment of the Two Million Naira only (N2,000,000.00) was acknowledged by the Appellant even though he claimed it was for a different transaction. The Appellant failed to prove for which other transaction it was for.
The position of the Law is that he who asserts must prove See Section 137 Evidence Act. The Appellant claimed that the Two Million Naira only (N2,000,000,00) paid by the Respondent was for a different transaction. This assertion was not proved by the Appellant. See Longe vs. FBN Plc (2006) 3 NWLR pt 967 pg. 228, Daodu vs. NNPC (1998) 2 NWLR pt.538 pg. 355, Kala vs. Potiskum (1998) 3 NWLR pt. 540 pg.1
In civil cases the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil suits must prove their cases on preponderance of evidence and on balance of probabilities.
It is after the burden of proving the case has been discharged in
accordance with the above principle of law that the burden shifts and continues to shift.
A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Iman vs. Sheriff (2005) 4 NWLR pt.914 pg.80, Elias vs. Omobare (1982) 5 SC pg.28, Agbi vs. Ogbeh (2006) 11 NWLR pt.990 pg.65.
Therefore it remains that the Respondent paid Two Million Naira Only (N2,000,000,00) to the Appellant to deliver 30 Metric tonnes of lead ore. This, the Appellant failed to deliver.
The Appellant in another twist asserted that he delivered to the Respondent the subject matter of this contract. In proof of this assertion the Appellant tendered 2 Exhibits SB05 and SB06. Interestingly like the learned trial Judge observed, that no-one acknowledged or received the goods supplied. For a delivery transaction to be complete, there must be delivery and acknowledgment of the goods so delivered by the receiver. Where this is lacking, the proof of such delivery is to be proved by other means. The Appellant was also unable to prove the delivery of the 30 Metric Tonnes of lead ore.
In
the final analyses, it was obvious that the parties had an oral contract for the supply and delivery of 30 Metric Tonnes of lead ore upon payment of the contract sum. The Respondent in furtherance of this contract paid into the Appellant’s Account installmentally, the total sum of Two Million Naira only (N2,000,000.00). These installmental payments were paid into the Appellant’s GT Bank Account and this was proved by tendering the Appellant’s Statement of Account evidencing such payments.
The Appellant could not prove what the payments were for if not for the oral contract made between the parties. It is also on record, that the parties were family friends and were comfortable with the oral contract until the Appellant reneged on it.
After this breach was reported to the Appellant’s father a formal contract Exhibit SB01 was drawn up and signed by the parties. However, the Appellant claimed that Exhibit SB01 tendered by the Respondent was a forgery. The Appellant stated that there were some items which were imported into the original document. The Appellant alleged fraud. The Appellant could not produce the supposed authentic copy. He also was unable to prove
forgery. Forgery is a criminal element and proof of which is beyond reasonable doubt. See Anas vs. Ishie (2005) 40 WRN pg. 54.
It appears the Appellant abandoned this aspect as no evidence was led to prove this allegation of forgery. Pleadings can never replace evidence. Any pleaded fact which is not given in evidence is therefore deemed abandoned. See NAS Ltd. vs. UBA (2005) 38 WRN pg.1.
With the foregoing it would mean that this Appeal is based only on a contract for the supply of lead ore. The burden of proof therefore is on the preponderance of evidence and balance of probabilities. It is said that in Civil Matters, the trial Judge balances the evidence given by the plaintiff as against that of the defendant. Whichever way the evidence tilts is what the court will hold as the state of affairs.
The trial Judge evaluated properly the evidence adduced by the Respondent as against that adduced by the Appellant and finally found that the Respondent had proved a better case against the Appellant.
In totality the Respondent was able to prove his case against the Appellant in the court below.
Issue one is therefore resolved against the Appellant.
ISSUE 2
Learned Counsel
for the Appellant submitted that there was enough evidence for the court to have given judgment in favour of the Appellant in respect of its counter claim. According to counsel the bank tellers tendered by the Appellant were payments made on behalf of the Respondent to the Respondent’s creditors. The admission of the Respondent’s managing director of having instructed the Appellant to pay the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira only) to Mr. Okoye Okezie on behalf of the Respondent was enough evidence for the lower court to grant its counterclaim. He relied on NAS LTD vs. UBA PLC (2005) 14 NWLR (Pt 945) 421 SC.
He also contended that the case of the Appellant in respect of the counter-claim was not properly challenged by the Respondent as the Respondent did not lead any evidence in support of the defence to counter-claim. He relied on IRON BAR vs. CRBRDA (2004) 2 NWLR (Pt 857) 411 CA.
?On the other hand, Counsel to the Respondent submitted that payments were never made on his behalf as he had no business relationship with any of the person to whom the Appellant claimed to have made payments on behalf of the Respondent and the Respondent never
instructed and could not have instructed the Appellant to make such payments. Counsel contended that with respect of the money paid by the Appellant to Mr. Okoye on behalf of the Respondent, the Respondent had repaid the Appellant.Counsel also contended that the Appellant failed to prove its counter-claim by not doing the following:-
1. Calling any of the alleged debtors to wit:- Tamal Industries Limited, Chukwumah Obiora or Okoye Okezie to prove the Respondent owed them and which debt was paid by the Appellant.
2. He did not produce any written agreement or witnesses to support his claim that he paid any money on behalf of the Respondent.
3. He did not state what he will gain by the payment nor why he will pay money for the Respondent who had reported him to his father for breach of contract.
4. Produce any other prove that he made payment save tellers which could not be read and of which there was no nexus between the Respondent and the tellers.
5. Call an official of his bank to prove that the tellers are genuine and payment were even made.
?Counsel also contended that the tellers lacked probative value in the absence of certification by the banks and in the
absence of the officials of the bank to tender same. He relied on Araka vs. Egbue (2003) 17 NWLR (Pt 848) 1 And Ogboro vs. Uduaghan (2011) 2 NWLR (Pt 1232) 579 @ 550.
In his reply, Counsel to the Appellant submitted that the issue of probative value to be attached to the tellers does not arise as the Respondent had under cross-examination admitted the payment of One Hundred and Fifty Thousand Naira Only (N150,000,00) made on its behalf by the Appellant. He submitted that fact once admitted need no further proof. He relied on the case of NAS Ltd vs. UBA Plc (supra).
The Appellant finally urged the court to resolve this issue in his favour.
As in all civil cases, the burden of proof is on the plaintiff. In the Appellant’s counter claim therefore, the burden of proof is on him. The Appellant did not deny that Two Million Naira Only (N2,000,000.00) was paid into his GTB Account however he denied Ten Thousand Naira Only (N10,000.00). If he denies N10,000.00, it at least means that he acknowledged Two Million Naira Only (N2,000,000.00) short of Ten thousand Naira Only (N10,000,00). Like I held earlier on in this judgment the burden of proof is on the claimant.
?It is
trite that what is admitted does not require further proof by evidence whether oral or documentary See Olagunju vs. Oyeniran (1996) 6 NWLR Pt. 453 pg.127, Akpan vs. Umoh (1999) 11 NWLR pt.627 pg.349, Agbanelo vs. Union Bank of Nigeria Ltd (2000) 4 SC pt.1 pg, 233, Gabani vs. Ilori (2002) 14 NWLR pt. 786 pg.78.
An admission of fact by a party against his interest is admissible in evidence and need no further proof. See Awote vs. Owodunni (No. 2) (1987) 2 NWLR pt.57 pg. 367, Iso vs. Eno (1999) 2 NWLR pt. 590 pg. 204, Atanze vs. Attah (1999) 3 NWLR pt. 596 pg. 647.
The Appellant had agreed that he indeed got the money transferred to his Guaranty Trust Bank (GTB) Account, however, he claimed it was for a different purpose. The Appellant claimed he was paying the Respondents’ debt. The Respondent denied this assertion; he only accepted the debt paid to Mr. Okoye which he claimed he had repaid the Appellant.
The Appellant in accordance with the Evidence Act ought to prove the payment to all these people he claimed to have paid on behalf of all the supposed Respondent’s creditors.
The Appellant in proof of this assertion tendered SB 05 and SB 06 which were not legible.
The supposed recipients were not called as witnesses in proof of his assertion. Where a party fails to discharge the burden of proof, then the opponent need not prove any fact and the party alleging cannot rely on the opponents’ case. A party must proof its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. Iman vs. Sheriff (2005) 4 NWLR pt. 914 pg.80, Elias vs. Omobare (supra), Agbi vs. Ogbeh (supra)
The Appellant could not prove that it paid the Respondent’s creditors. The Appellant in one breath agreed that the Respondent paid money into his Account. In another breath he claimed he delivered the 30 metric tonnes of lead ore. The Appellant could not prove to which address it was delivered or to whom it was delivered to. He could also not prove who took delivery of the 30 metric tonnes of lead ore. The Appellant thereafter in his counter claim asserted that the Respondent is owing him the same amount for money paid to the Respondent’s creditors. Which of these assertions does the court believe? The court did not believe the many stories of the Appellant.
?As I
have stated earlier on, the burden of proof in civil matters is on the preponderance of evidence and the balance of probabilities. The Appellant failed to prove his counter claim and therefore must fail. The Appellant’s counter claim was not proved. The learned trial Judge was therefore right to have discountenanced the Appellant’s counter claim.
The second issue is also resolved against the Appellant. All the two (2) issues articulated by the Appellant are all resolved against him.
This Appeal is unmeritorious and therefore must fail.
This Appeal is dismissed.
I affirm the Judgment of the trial court and I award a cost of Fifty Thousand Naira Only (N50,000.00) against the Appellant in favour of the Respondent.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother, U. I. NDUKWE.ANYANWU JCA.
The issues in contention have been adequately addressed and I agree with the reasoning and conclusions reached therein.
I also hold that the Appeal lacks merit and deserves nothing but an order of dismissal.
?I therefore affirm the judgment of the lower court delivered on the 26th November, 2013.The consequential orders
made in the lead judgment including order as to cost are hereby adopted as mine.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother UZO I. NDUKWE – ANYANWU, JCA just delivered. I agree with the reasoning and conclusions arrived at and how the issues for determination were resolved.
The Supreme Court in the case of ODOFIN & ORS v. MOGAJI & ORS (1978) NSCC 275 has guided the courts on the essentials the judge considers in weighing evidence. The judge must have regard of the following: –
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
See also MAITO & ORS v. OGUNBODEDE (2013) LPELR ? 20892 (CA).
It is not enough for the Defendant to assert evidence in support of his case alone. He must also provide evidence in proof of his assertions which must be credible and outweigh that given by the other party. In the case of WOMILOJU v. ANIBIRE (2010)10 NWLR (Pt. 1203) 545, the Supreme court held thus:
“He who asserts must prove. The language of Section 135
(1) Evidence Act Chapter E14 LFN 2004 is that whoever 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.
“Unfortunately, the Appellant in this case was not able to prove his assertions and has therefore lost any voice to complain. The appeal lacks merit and I also dismiss same and abide by the orders made in the lead judgment.
Appearances
D.O. Ogebe, G A Okebu For Appellant
S.B. Olatunde, G Nwabuike For Respondent
Appearances
D. O. Ogebe, G A OkebuFor Appellant
AND
S. B. Olatunde, G. NwabuikeFor Respondent
