MR. BASSEY ASSANGHA & ORS v. MR. LUKE EZEIGHU
(2019)LCN/12835(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/B/263/2005
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“It is trite that it is the trial Court’s primary duty to review the evidence adduced by either side and from the probative value it assigns to the evidence, makes its findings of fact. Thus, the Court prefers the case of one side to the other where because of the quality, admissibility, relevance and probative value, on being put on the imaginary scale, the evidence of the side weighs more. See Mogaji v. Odofin (1978) 4-5 SC 91; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR Pt. 7 Pg. 393 and Karibo v. Grend (1992) 13 NWLR Pt. 230 Pg. 426. An appellate Court intervenes only where the trial Court fails in discharging this primary duty and where credibility of the witnesses who testified is not in issue. See Onwuka v. Ediala (1989) 1 NWLR Pt. 96 Pg. 18; Woluchem v. Gudi (1981) SC 291.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1.MR. BASSEY ASSANGHA
2.MR. CLEMENT AGBA
3.MR. NIYI FALODE
4.CHEVRON NIGERIA LIMITED Appellant(s)
AND
MR. LUKE EZEIGHU Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment):
This is an appeal by the Defendants (hereinafter referred to as Appellants) against the judgment of Honourable Justice E.U. Akporido of the High Court of Delta State delivered on 14/3/2005. The facts that led to this appeal are as follows:
The Plaintiff (hereinafter referred to as Respondent) at the trial Court claimed against the Appellants as follows:
a. The sum of N5, 000, 000. 00 (Five Million Naira) being damages suffered by the Plaintiff as a consequence of Defendants’ assault on the Plaintiff on 9/4/97 when the 1st-3rd Defendants at 4th Defendant’s premises at New Port Express Road, Effurun threatened to kill and/or deal with Plaintiff and later procuring other 4th Defendant’s employee to physically assault and battered the Plaintiff by frog marching, dragging and locking up the Plaintiff in 4th Defendant’s Security officer/room.
b. The sum of N5, 000, 000. 00 (Five Million Naira) being damages for false imprisonment and/or unlawful detention suffered by Plaintiff as a consequence of 1st- 3rd Defendants instruction and procuring 4th Defendants Security Officer, one Mr. Nwokolo to seize, detain and lock up the Plaintiff at 4th Defendant?s security room/post on 9/4/95 at its New Port Road premises aforesaid.
c. The sum of N5, 000, 000. 00 (Five Million Naira) being damages for defamation/slander by Plaintiff when on 9/4/95 at the 4th Defendant?s premises along New Port, Express Road, Effurun, the Defendant repeatedly published of and concerning the Plaintiff before various persons present at the Chevron Nigeria Ltd.?s Central Purchasing Office in some slanderous words which reduced the prestige of the Plaintiff in the presence of the hearers.
d. An order of mandatory injunction restraining the Defendants, their agents, privies and/or however from further publishing the said slanderous words of and concerning the Plaintiff
e. The sum of N5, 000, 000. 00 (Five Million Naira) being general damages for breach of contract as Plaintiff?s business cannot be operated fully with the huge sum of money tied down by the Defendant and/or for loss of use of the said sum in Plaintiff?s business.
The Appellants joined issues with the Respondent in its Further Amended Statement of Defence. The Respondent filed a Reply to Appellants’ defence, testified in proof of his case and called one witness, whilst the 1st -3rd Appellants testified in their defence and called one witness. Judgment was entered in favour of the Respondent and against the Appellants on the 14/3/2005.
Being dissatisfied with the said judgment of the trial Court the Appellants appealed to this Court and filed four original grounds of appeal on 15/3/05.
Record was transmitted on 20/11/06 while the Exhibits were transmitted on 10/6/13. The Appellants rely on the amended notice of appeal filed on 17/5/07 deemed filed on 27/05/08. The Appellants? brief was filed on 23/10/09 pursuant to order of 20/10/09. The Respondent’s brief was filed on 22/4/10 and deemed filed on 23/4/10.
At the hearing of this appeal on 21/1/09, the Respondent’s counsel, Consolex Legal Practitioners in particular Akpomudje Esq. SAN who had been served hearing notice in respect of this 13-year-old appeal on 15/1/09 was absent. Learned senior counsel had (7) clear days to make arrangements to defend the Appeal.
The Respondent’s brief was thus deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
The Appellants? counsel in the brief settled by Sir Victor E. Akpoguma identified two issues as arising for determination in this appeal as follows:-
1. Whether the Respondent established by his pleadings and evidence the uttering and publication of the alleged slanderous words to entitle him to the judgment of the trial Court
2.Whether the learned trial judge, relying on S. 149 (d) of the Evidence Act Cap E. 14 Laws of the Federation of Nigeria 2004, was right in holding that the Respondent successfully established that he was assaulted and detained by the 1st- 3rd Appellants by their failure to call the 1st Respondent and one Mr. Nwokolo to testify in their defence
The Respondent’s brief settled by Onome Egbon Esq. of Akpomudje SAN, Consolex Chambers identified two issues for determination as follows:
1. Whether the Honourable Court was right in holding that the Respondent by his pleadings and evidence has established the uttering and publication of defamatory words while the 1st and 2nd Appellants and thereby entering judgment in favour of the Plaintiff.
2. Whether the Honourable Court was right in the circumstance of this case in holding that the Respondent has established his case of assault and detention against the Appellants.
Both issues are the same but couched differently. I will however recouch the complaints of the Appellants as follows:
Whether the learned trial judge was right in finding that a case of defamation, assault and unlawful detention was made out against the Appellants by the Respondent.
SOLE ISSUE
Whether the learned trial judge was right in finding that a case of defamation, assault and unlawful detention was made out against the Appellants by the Respondent.
The gist of the Respondent’s case at the lower Court is that the 1st- 3rd Appellants on the 9/4/97 at the premises of the 4th Appellant had an altercation with him whereupon they (1st – 3rd Appellants slandered him and procured an employee of the 4th Appellant, one Mr. Nwokolo, to assault him and also falsely detain him.
Learned counsel submitted that there is no modicum of evidence certainly not Exhibit C1, to disprove the Appellants’ case that whilst the Respondent was in 4th Appellant’s premises on the 9/4/97, the 1st-3rd Appellants had no altercation whatsoever with him on that day.
Counsel submitted that having tendered exhibit C1(documentary evidence) which stated what happened on the 9/4/97 between the Respondent and some of the personnel of the 4th Appellant on the said 9/4/97, coupled with the evidence of the 1st -3rd Appellants, there was sufficient evidence, documentary and oral about the events of the 9/4/97. No oral evidence from the Respondent could vary and or contradict Exhibit C1. Having tendered exhibit C1 the Appellants argued that their evidence was therein complete.
Counsel further argued that the learned trial judge did not believe the defence of the Appellants because the 1st Appellant who allegedly uttered the slanderous words did not testify at the proceedings.
Counsel argued that the learned trial judge also stated that while the 4th Appellant admitted the presence of the Respondent on their premises, the 1st -3rd Appellants denied the presence of the Respondent on the premises. Thus, the Court felt strongly that the Appellants lied which led to the conclusion in favour of the Respondent. Counsel argued that the Respondent?s witness PW1 did not state properly the libelous words allegedly said by the 1st-3rd Appellants and that the substantial disparity in the words allegedly spoken by the Appellants in the claim put up and the evidence of the Respondent’s witness should be resolved in favour of the Appellants.
Counsel also argued that Exhibit M and N were properly admitted without objection by the Respondent as documents emanating from the proper custody of 4th Appellant’s security department. Exhibits M and N clearly shows that PW1 was not in 4th Appellant’s premises on the 9/4/97, the day he PW1 allegedly heard the alleged slanderous words attributed to the 1st -3rd Appellants.
Counsel submitted that the learned trial judge wrongly evaluated the evidence, oral and/or documentary, placed before him and thereby erred in entering judgment in favour of the Respondent. Counsel cited Begha v. Tiza (2000) 4 NWLR Pt. 652 Pg. 193 at 212.
Counsel opined that as earlier stated in this brief, the conclusion of the learned trial judge that the 1st Defendant (1st Appellant) was not called is perverse. 1st Appellant was called. He testified. His testimony is at Pages 47-52 of the Record. Whilst 1st Appellant was called, Mr. Nwokolo was not called. Counsel submitted that the evidence of Mr. Nwokolo was not necessary in view of the defence of the Appellants that none of the Respondent?s complaints happened.
Counsel argued that the Respondent stated that the 1st Appellant sent for Mr. Nwokolo who upon his arrival dragged, frog matched, locked up and detained him for sometime in 4th Appellant’s security office.
Counsel emphasized that the 1st Appellant in his defence denied seeing the Respondent on the 9/4/97. He did not send for Mr. Nwokolo to do all that was alleged he did. Counsel argued that 1st Appellant’s evidence obviates or makes it unnecessary to call Mr Nwokolo as a witness.
Counsel submitted that S. 149 (d) of the Evidence Act and the authorities relied upon by the learned trial judge are not applicable as the 1st Appellant, who was alleged to have sent for Mr. Nwokolo testified and denied sending for Mr. Nwokolo, and also denied Respondent’s allegation that he (Respondent) was assaulted, locked up and detained.
Counsel insisted that PW1, the only witness called by the Respondent denied any assault on the Respondent.
The Respondent’s counsel replied that the Respondent’s witness (PW1 at the trial) gave evidence in proof of the fact that the 1st -3rd Appellants actually called the Respondent names and that he saw the 1st – 3rd Appellants order one Mr. Nwokolo the Head of security of 4th Appellant to lock up the Respondent.
Counsel argued that the Respondent in his evidence stated the exact words that were used by the 1st-3rd Appellants against him and in the full glare of people who were at the Chevron Central Purchasing Office including the PW1.
Counsel further argued that the Respondent’s witness PW1 testified that the 1st -3rd Appellants made the statements being complained about and that Mr. Nwokolo, Head of Security of 4th Appellant walked the Respondent away after 1st- 3rd Appellants requested that he be taken away and detained. On the face of the contrary evidence before the Court as led by Appellants, the only option is for the Court to watch the witness and on the basis of the fact choose which of the evidence is most probable and believe one of them.
Counsel argued that the Respondent herein gave evidence of all what transpired between him and the 1st -3rd Appellants in the presence of other persons present at the 4th Appellant’s company premises but all the Appellants could do was a bare denial that none of them saw the Respondent on the said 9/4/97.
Counsel opined that inconsistent with the evidence of the Appellants, the Respondent tendered the statements of Mr. Samuel Mede and Danowhen Napoleon Siakpere who both corroborated the evidence of the Respondent.
Counsel argued that it is the law that whilst a party is not expected to call a particular number of witnesses but only those he/she considers necessary for the proof of his case, the party must however call material witnesses and in this case the officials who allegedly had problems with the Respondent or who were alleged to have prevented the Respondent from using the 4th Appellant’s boat.
Counsel further argued that being a security officer in the 4th Appellant’s company, he did not even give evidence of what happened on the said 9/4/97 or deny that Respondent was detained.
Counsel submitted that the Appellants herein never put in issue the question as to whether the words said to have been altered were defamatory and damaging which accrued therefrom as all they did was to deny that it was never made.
Learned counsel for the Respondent also argued that the trial Court captured the game plan of the Appellants clearly at page 82 when he said
in my view, the 2nd and 3rd Defendants testified as persons who had much to suppress. Their demeanour did not portray them as witnesses of truth.
Counsel argued that the Honourable Court had two contrary pieces of evidence before him and he had a duty to prefer one to the other which he did by preferring the evidence of the Respondent’s and his witnesses.
Learned Respondent’s counsel submitted that the Appellants cannot in one breath urge the Court to disbelieve PW1 and in the next breath say that his testimony supports their defence that the Respondent was never assaulted.
Counsel opined that the Appellants contention at page 12 of their brief of argument that the allegation of assault and detention was an afterthought by referring the Honourable Court to Exhibit D, fell flat on its face. This is because the Appellants intentionally failed to refer to Exhibit ?C? which was earlier in time, wherein the Respondent clearly stated the facts of this assault, detention and indeed all that transpired at 4th Appellant?s premises on 9/4/97 between him and the 1st-3rd Appellants. Learned Respondent?s counsel commended Exhibit C copied at page 109 of the Record of Appeal to the close scrutiny of the Court.
OPINION
It is clear that the issue for determination in this appeal calls for a review of the findings of the learned trial judge. It is clearly a case of oath against oath and the learned trial judge was obliged to see in whose favour the evidence preponderates. See Awieh & Ors v. Owofio (2012) LPELR-9472 (CA); Ikpeazu v. Ogah & Ors. (2016) LPELR- 40843 (CA)
No doubt the onus of proof on the balance of probability is on the Plaintiff/Respondent in this case, who must prove his case and not rely on the weakness in the Defendants now Appellants’ case. See Attorney General of Anambra State v. Onuseloqu (1987) 4 NWLR Pt. 66 Pg. 547; Nimeanteks Associates v. Marco Construction Co. Ltd. (1991)2 NWLR Pt. 174 Pg. 411; Tokimi v. Fagite (1999) 19 NWLR Pt. 624 Pg. 589.
In this case, the learned trial judge had to choose between the evidence of the Respondent and his witness-PW1 that slanderous words were uttered about him in the presence of witnesses which hurt his reputation and that he was subsequently arrested, marched off and detained by agents of the Appellants. The Appellants on the other hand stated in evidence that the Respondent never came to the premises of the 4th Appellant on the date of the alleged defamation, assault and unlawful imprisonment. They further conceded that even if he did, his allegations were factually false.
Ejiwunmi JSC in Akingbehin Tinubu v. Khalil & Dibbo Transport (2000) 11 NWLR Pt. 677 Pg. 71 held that an appellate Court in this type of situation is only left with a duty to consider the following parameters:
(a)Whether there was enough evidence on record to support the findings/orders of the learned trial Court
(b) Whether the trial Court had made a correct assessment of the evidence before it.
(c) Whether the trial Court had wrongly accepted or rejected any evidence tendered at the trial.
(d) Whether there has been an erroneous conclusions by the learned trial judge.
In Chief Efet v. INEC (2011) 7 NWLR Pt. 423, the Supreme Court held on this issue that this Court focusing on the record of appeal placed before it, is entitled to ‘rehear’ the case and may make its own evaluation of the evidence contained in the Record of appeal. From that record the appellate Court may review the findings and inferences of fact and where it considers proper, may substitute its own view of the facts for that of the trial Court. The appellate Court is thus entitled to reject perverse findings of fact. See also Okotie-Eboh v. Okotie-Eboh & Ors (1986) 1 SC 470 at Pg. 507; Onowan & Anor v. Iserhien (1976) NMLR Pg 263. Now inKehinde Olude v. The State (2018) LPELR- 44070 (SC) the Supreme Court held as follows:-
It is trite that it is the trial Court’s primary duty to review the evidence adduced by either side and from the probative value it assigns to the evidence, makes its findings of fact. Thus, the Court prefers the case of one side to the other where because of the quality, admissibility, relevance and probative value, on being put on the imaginary scale, the evidence of the side weighs more. See Mogaji v. Odofin (1978) 4-5 SC 91; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR Pt. 7 Pg. 393 and Karibo v. Grend (1992) 13 NWLR Pt. 230 Pg. 426.
An appellate Court intervenes only where the trial Court fails in discharging this primary duty and where credibility of the witnesses who testified is not in issue. See Onwuka v. Ediala (1989) 1 NWLR Pt. 96 Pg. 18; Woluchem v. Gudi (1981) SC 291.
In this case, as I said earlier, the learned trial judge had to determine whether to believe the oath of the Respondent against the oath of the Appellants. Let us consider whether the learned trial judge?s findings were perverse or not. The learned trial judge believed the evidence of the Respondent that he was slandered, assaulted and detained on 9/4/97 as against the evidence of the 1st -3rd Appellants that they did not have any encounter with the Respondent on the day in question.
I cannot agree with the learned trial judge that Exhibit C1- written by the 4th Appellant as response to the letter of the Respondent?s solicitor- Exhibit C shows unequivocally that the 1st -3rd Appellants were not telling the truth when they claimed they did not have any encounter with the Respondent on that day. Exhibit C1 written by the 4th Appellant shows that the Respondent was in the company on the fateful day and in fact had an altercation with the security staff. It is with respect, misplaced confidence on the part of the Appellants’ counsel that having tendered Exhibit C1, the defences’s case is thereby complete.
I have considered the erroneous conclusion of the learned trial judge that the 1st Appellant did not testify. No doubt, it is not every error that would be fundamental to warrant the setting aside of a judgment of the trial Court. See Cookey v. Fombo (2005) 15 NWLR Pt. 947 Pg. 182 at 201; Atanda v. H. Saffeiddine Transport Ltd. (2008) Vol. 37 WRN 185 at 196 lines 35-40 (CA); Ibrahim v. Judicial Service Committee (1998) 14 NWLR Pt. 584 Pg. 1 at 46-47; Bankole v. Pelu (1991) 8 NWLR Pt. 211 Pg. 523; Ukaegbu & Ors. v. Ugoji & Ors (1991) 6 NWLR Pt. 196 Pg. 145. However, I believe that the error is fundamental in the circumstances, if a judge forgets while writing a judgment the facts in his Record that a defendant actually put up a spirited defence by way of an appearance in Court to defend himself, and this weighed on the mind of the Court to conclude findings in favour of the Plaintiff/Respondent. At Pg. 82 of the Record, the learned trial Court held as follows:-
The gist of the Respondent?s case at the Lower Court is that the 1st-3rd Appellants on the 9/4/97 at the premises of the 4th Appellant had an altercation with him whereupon they (1st-3rd Appellants) slandered him and procured an employee of the 4th Appellant, one Mr. Nwokolo to assault him and also falsely detain him.
I have to agree that the above finding of the learned trial judge is perverse in view of Pg. 47-52 of the Record where the evidence in chief, cross examination and re-examination of the 1st Appellant was recorded by the Court. The Court simply did not consider the side of the Appellants thoroughly and the effect of that is that the judgment cannot stand. See Tippi v. Notani (2010) LPELR-5030 (CA); Otapo v. Sunmonu (1987) 2 NWLR Pt. 58 pg. 587
In the circumstances, there is merit in this appeal. The judgment of Hon. Justice E.U. Akporido of the Delta State High Court delivered on 14/3/2005 in Suit No. EHC/128/98 is hereby set aside. No order as to costs. Appeal Allowed.
PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft, the lead Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
My learned brother has painstakingly dealt with the sole issue canvassed in this appeal. I totally agree with the reasoning and conclusions reached therein that this appeal has merit and ought to be allowed. Accordingly, this appeal is allowed and the Judgment of E.U. Akporido J, delivered on 14/3/2005 in Suit NO. EHC/128/98 is hereby set aside. I abide by the order as to cost in the lead Judgment.
Appeal allowed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the draft copy of the judgment just delivered by my learned brother H.M. OGUNWUMIJU JCA.
The sole issue formulated for determination has been adequately and exhaustively addressed and I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed.
I also allow the appeal and I abide by the consequential orders made in the lead judgment including order as to costs.
Appearances:
Sir V.E. Akpoguma Esq., with him E.A. Akpoguma Esq., and O.M. Esievoadje Esq.For Appellant(s)
No representation for the Respondent.
For Respondent(s)
