AMADU LAWAL & ANOR v. ALHAJI SULE UMARU
(2018)LCN/12050(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/K/329/2014
RATIO
APPEAL: WHERE ERROR IN JUDGMENT IS APPEAL AGAINST
“This is because it is not all errors in a Judgment appealed against that will result in the setting aside of the judgment and allowing the appeal. It is only those errors that have caused a miscarriage of Justice and are so substantial as to affect the Justice of the case, except rectified by an appellate Court. See Nguma v. A-G Imo State (2014) 7 NWLR Part 1405 Page 119 at 146- 147 Para A-B per M.D. Muhammad JSC; Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 107 Para E-F per Peter-Odili JSC; Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 29 Para F-H per Ogunbiyi JSC; Ohakim v. Agbaso (2010) 19 NWLR Part 1226 Page 172 per Onnoghen JSC (as he then was). It is also well established that where there is other evidence to support a judgment, the judgment, in spite of the error of the trial Judge, will not be vitiated. See Diamond Bank Ltd v. Partnership Investment Co Ltd (2009) 18 NWLR Part 1172 Page 67 at 95 Para G-H, per Ogbuagu JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: HEARSAY EVIDENCE
“By Section 37 (a) of the Evidence Act 2011 (as amended), hearsay is defined as a statement oral or written made otherwise than by a witness in a proceeding.’ It was held in the case of Utteh v State (1992) 2 NWLR Part 223 Page 257 at 273, Para E-F per Nnaemeka-Agu JSC, quoting from Taylor on Evidence 12th Edition, on this subject, as follows: ‘In its legal sense “hearsay” evidence is all EVIDENCE which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.’ If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible: See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965, at p.969, P.C.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: A CONFESSIONAL STATEMENT
“A confession has been held to be the best form of evidence in a criminal trial. See FRN v Dairo (2015) 6 NWLR Part 1454 Page 141 at 179 Para G-H per Nweze JSC. The desirability of corroborative evidence in addition to the oral confession made to PW1 and 2 was also satisfied in this case, I hold, by the evidence of the Respondents witnesses. Thus, though the trial Judge erred in holding the standard of proof to be on the balance of probabilities and preponderance of evidence, the allegation against the Appellants, I hold, was proved beyond reasonable doubt. Proof beyond reasonable doubt has been held not to mean proof beyond a shadow of doubt but proof with a high degree of probability that the offence was committed. See Udo v State (2016) 12 NWLR Part 1525 Page 1 at 43 Para A-B, per Peter-Odili JSC; Ehimiyein v State (2016) Part 1538 Page 173 at 198 Para E-F by the same learned jurist.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICE
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. AMADU LAWAL
2. MUSA SANIAppellant(s)
AND
ALHAJI SULE UMARURespondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
The claim before the lower Court revolved around an accusation by the Respondent of the theft, sometime in 2008, of 22 of his cows from where they were being kept at Majenn Wayya Village of Chiranchi Local Government Area of Katsina State. The theft, referred to in common parlance as cattle rustling was reported to the Association set up to stop thieving, drug taking, rape and other vices. The cows were eventually traced to Zamfara State. Unfortunately only some of the cows were able to be recovered. In consequence, the Respondent instituted a claim before the lower Court seeking the following reliefs:
1. A declaration that the Plaintiff is the bona fide owner of the 12 cows taken away by the Defendants.
2. A declaration that the Defendants action of taking the Plaintiffs Cows without his consent is unlawful and unconstitutional.
3. An order of mandatory injunction compelling the Defendants to produce the 12 cows (together with their young ones delivered by the pregnant ones among them) belonging to the Plaintiff which they unlawfully misplaced or in the alternative, pay the Plaintiff the cost of the 12 cows being the sum of One Million, Three Hundred and Thirty Thousand Naira (N1,330,000.00k) only.
4. The sum of Ninety Thousand Naira (N90,000.00k) only being the value of the cow sold at Sixty Thousand Naira (N60,000.00k) only by the plaintiff in order to settle the people who helped him to trace and/or recover the cows.
5. General damages against the Defendants for the expenses incurred by the Plaintiff in tracing the cows for about a year, the psychological disturbance and trauma for losing the cows and the filing and prosecuting this suit together with such other costs that the Honourable Court may deem fit and just to award in the interest of Justice in the circumstance.
In proof of his claim before the lower Court, the Respondent called three witnesses. On the date fixed for defence, the defence Counsel informed the Court that he was closing the case of the defence for failure of its witnesses to appear. The case was thence adjourned for adoption of written addresses, after which it was adjourned for judgment. The lower Court, the High Court of Katsina State, in its judgment delivered by Abdullahi Yusuf J., on 18/6/12, held the Respondents claim proved and entered judgment in the following terms:
1. It is hereby declared that the plaintiff is the bona fide owner of the 12 cows taken away by the defendants.
2. It is hereby declared that the defendants action of taking the plaintiffs cows without his consent is unlawful and unconstitutional.
3. The defendants are hereby compelled to produce the cows belonging to the plaintiff (together with their young ones delivered by the pregnant one among them) belonging to the plaintiff which they unlawfully misplaced or in the alternative pay the cost of the 12 cows being the sum of N1,330.000.00 only.
4. The defendants should pay the sum of Ninety Thousand Naira only (N90,000) being the value of the cow sold at N60,000 (Sixty Thousand Naira) only by the plaintiff in order to settle the people who helped him to trace and or recovered the cows.
Prayer number 5 is vague but general damages of N50,000.00 is awarded against the Defendants.
Dissatisfied, the Defendants, Appellants herein, appealed to this Court, by Notice of Appeal dated 26th day of May, 2014 and filed on 27th day of May, 2014. The Appellants Brief of Arguments filed on 15/7/14 was settled by A.I Adams Esq. The Respondent however filed no Brief of Arguments, learned Counsel to the Respondent, having informed the Court, prior to the hearing, that he had lost contact with the Respondent.
At the hearing of the appeal, on 10/10/18, none of the parties were present. They were also not represented. In consequence, the Court deemed the Appellants Brief as duly argued, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
Notwithstanding the failure of the Respondent to file any Brief of Argument, this appeal shall be considered on its merits.
In the Appellants Brief of Arguments, 3 issues were distilled for the Courts determination, to wit:
i. Whether the lower Court was right when it relied on the evidence of PW3 in arriving at its decision.
ii. Whether the trial Court was right to have admitted and relied on legally inadmissible evidence to arrive at its decision.
iii. Whether the Respondent has proved his case before the lower Court in accordance with the law to warrant judgment of lower Court in his favour.
I shall adopt these issues, the first of which is:
Whether the lower Court was right when it relied on the evidence of PW3 in arriving at its decision.
Learned Counsel to the Appellant has contended that the learned trial Judge misdirected himself in believing the testimony of PW3 in arriving at its decision, when the witness was not an expert in the field of buying and selling cows. Defining who an expert witness is, Counsel argued that the witness failed to state his qualifications and to satisfy the Court that he is an expert on the subject matter. He cited the cases of Alake v State (1991) 7 NWLR Part 205 Page 567; Shell Petroleum Development Company of Nigeria Ltd v Otoko (1990) 6 NWLR Part 159 Page 693.
Now, an expert has been defined by the Supreme Court in the case of Omisore v Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 302 Para B-F; (2015) All FWLR Part 813 Page 1673 at 1753 Para F-H, per Ngwuta JSC, as: ” a person who, through education or experience, has developed a skill or knowledge in a particular subject that he or she may form an opinion that will assist the fact-finder. When a Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts..An expert is one who has made the subject upon which he speaks, a matter of particular study, practice or observation, and he must have a particular and special knowledge of the subject
As also held in Okereke v Umahi (2016)11 NWLR Part 1524 Page 438 at 478 Para A, an expert is a person specially skilled in the field he is giving evidence.
In the case cited by the Appellants Counsel of Alake v State (1991) 7 NWLR Part 205 Page 567 at 592 Para E-F, it was held, per Tobi JCA (as he then was), that an expert witness is a person who by formal and organized training in his chosen profession has acquired a deep knowledge of the area he is called upon to give evidence.
Also cited by the Appellants Counsel is the case ofShell Petroleum Development Company of Nigeria Ltd v Otoko (1990) 6 NWLR Part 159 Page 693 at 712-713 Para H-A per Omosun JCA where an expert was defined as a person specially skilled in the field in which he is giving evidence.
In Action Congress of Nigeria v Nyako (2015) 18 NWLR Part 1491 Page 352 at 393 Para C-F, the Supreme Court, per M.D. Muhammad JSC, defining this word, held: where a Court or Tribunal is required to form an opinion upon a point specified, the opinion of persons specially skilled in the areas are admissible. It is a condition precedent to the admissibility of the opinion, to enable the Court form its own opinion, that it is that of a person specially skilled in the area the Court or Tribunal is required to form its opinion on a point. The qualification, experience and depth of the persons learning are the invariable criteria which entitle him to render the opinion in order to aid the Court or Tribunal. The person so qualified under the section is called an expert.. It is the Courts prerogative to determine that the person being called as a witness, by his qualification and learning is indeed specially skilled.
PW3, describing his occupation, stated that he is a farmer and cattle rearer. His evidence is also that I know the cows. He gave a graphic description of the cows as follows, at Page 21 of the Record:
I know Alh. Sule Umar, I also know Ahmadu Lawal and Musa Sani. The two stole Alh. Sules Cows, thirteen in number. I know the cows. There is one Sudare will cost N70,000 there is Fari N50,000, there is Gala N140,000, then Ya N140,000 then Dogaye N140,000 then Ole N140,000, Faraye N140,000, then Maida N140,000, Kundumi N100,000, then Gunda N80,000 then Hure N70,000 then Shoda N120,000 then Gana N60,000
Under cross examination, giving his capability to give the evidence, he stated as follows:
The Plaintiff is my father. I am the cattle rearer and he is my father.
He followed this up by giving the number of the cows that were pregnant and what transpired in their bid to recover the cows.
The witness was never questioned on his lack of capacity to give evidence or his depth of experience.
He was also not challenged on his intimate knowledge of the cows. It was also not suggested to him that he was lying.
Having failed to question the witness on his ability to give the evidence on the cattle, their cost and the state they were in, the Appellants are deemed to have accepted his knowledge of the subject matter. They cannot now be heard to question his capability, I hold. See Unipetrol (Nig) Plc v Adireje W/Africa Ltd All FWLR Part 231 Page 1238 at 1279 Para D E per Sanusi JCA (as he then was).
It should be emphasized that an expert, to be so called, does not have to possess western education or have gone through some formal education. To qualify as an expert, what is important is that the person, either through education or experience, has developed a skill or knowledge in the subject. This is a question for the Court to decide, which question was determined by the lower Court in favour of the intimate knowledge by PW3 of the cows.
Indeed, one wonders what type of qualifications a cattle rearer must possess to be able to give evidence of cattle he rears? What better person is there to give evidence than the person who it was that reared the cows and knows about cattle rearing?
It should be noted that PW3 gave evidence, not as an expert but his personal knowledge of the cattle kept by him and their prices, and the manner of their disappearance and the subsequent discovery, which evidence was not discredited.
The lower Court, in its judgment held:
As I have said earlier the testimony of the Plaintiff witnesses was neither challenged nor discredited.
The witnesses were not cross examined but the said cross examination did not controvert what they said nor discredit them as witnesses of truth
As aforesaid, the issue of lack of capacity of this witness was never raised before the lower Court by Counsel to the Appellants, either when the witness was giving evidence or in Counsels address before the lower Court. All that was submitted in final address on PW3 is that his evidence was not tied to his pleadings.
The law is that an issue which was not distinctly raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court, without the leave of the appellate Court. Such an issue or argument made is not competent and goes to no issue. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para C per Nweze JSC; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC.
The lower Court, I accordingly hold, was right to have relied on the evidence of this witness in arriving at its decision. In any event, the Appellant, not having sought the leave of this Court to raise this issue, cannot contest the acceptance of the evidence of this witness by the lower Court. I accordingly resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination is the following:
Whether the trial Court was right to have admitted and relied on legally inadmissible evidence to arrive at its decision.
Learned Counsel has contended that the evidence of PW1 and PW2 were legally inadmissible, being hearsay evidence and thus excluded by Section 38 of the Evidence Act 2011, failure of the Appellants Counsel to object to the same, notwithstanding. The Court should thus disregard the evidence and expunge same, citingOladipo v Moba LGA (2010) 5 NWLR Part 118 Page 117.
The evidence referred to by learned Counsel is where PW1 said:
I know Alh Sule Umaru he went to our Association Head Quarters and reported that some people stole his cattle
And where PW2 stated:
Yes I know Alh Sule Umaru who is the Plaintiff in this case I know when he came and reported to us that his cattle were stolen..
Without giving reasons as to why the evidence amounted to hearsay and not admissible, he cited Oladipo v Moba LGA (2010) 5 NWLR Part 118 Page 117 on the consequence of reception of inadmissible hearsay evidence and the duty to disregard same, if admitted inadvertently.
By Section 37 (a) of the Evidence Act 2011 (as amended), hearsay is defined as a statement oral or written made otherwise than by a witness in a proceeding.”
It was held in the case of Utteh v State (1992) 2 NWLR Part 223 Page 257 at 273, Para E-F per Nnaemeka-Agu JSC, quoting from Taylor on Evidence 12th Edition, on this subject, as follows:
“In its legal sense “hearsay” evidence is all EVIDENCE which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.”
If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible: See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965, at p.969, P.C.
In our law, all facts may be proved by oral evidence (Section 75 of the Evidence Act). By Section 76(b) of the Act, such oral evidence includes what a witness heard, subject to the rule of exclusion of hearsay evidence. What a witness heard in the presence of an accused person cannot be hearsay.
The statements referred to above by the Appellants Counsel have, however, not been shown to be hearsay. The witnesses were not challenged on their personal knowledge of whether the report was made or not to the Association they both belong to. There is thus nothing to disprove their primary knowledge of the report made.
The Appellants have thus failed to prove that the evidence referred to above falls within the realm of hearsay evidence and inadmissible. This evidence, I hold, was rightly relied upon by the lower Court. I again resolve the 2nd issue for determination against the Appellant.
The 3rd issue for determination, is:
Whether the Respondent has proved his case before the lower Court in accordance with the law to warrant judgment of the lower Court in his favour.
Learned Counsel to the Appellant challenged the statement of the trial Judge, where he held:
in the case before this Court, the main issue for determination is whether the Respondent was able to prove his case on the balance of probabilities or preponderance of evidence .
and where he concluded that:
I hold that the Plaintiff has proved this case on the balance of probabilities. I hereby enter judgment in his favour and order as follows
Counsel argued that the bone of contention in the case is the theft of cows by the Appellants, which is a criminal offence and for which the standard of proof, by Section 135(1) of the Evidence Act 2011, is proof beyond reasonable doubt. He cited the cases of Nwobodo v Onoh (1984) NSCC Page 1 and Babale v Eze (2011) 11 NWLR Part 1257 Page 48.
It is indeed the correct statement of the law, as held in the cases cited above, that if the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
Section 135 of the Evidence Act Supra, the statute in point, provides as follows:
1. If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
2. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
The question is, whether this statement by the learned judge that the standard of proof was on the balance of probabilities when the standard should have been proof beyond reasonable doubt, the commission of a crime being in issue, was fatal to the Respondents case?
This is because it is not all errors in a Judgment appealed against that will result in the setting aside of the judgment and allowing the appeal. It is only those errors that have caused a miscarriage of Justice and are so substantial as to affect the Justice of the case, except rectified by an appellate Court. See Nguma v. A-G Imo State (2014) 7 NWLR Part 1405 Page 119 at 146- 147 Para A-B per M.D. Muhammad JSC; Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 107 Para E-F per Peter-Odili JSC; Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 29 Para F-H per Ogunbiyi JSC; Ohakim v. Agbaso (2010) 19 NWLR Part 1226 Page 172 per Onnoghen JSC (as he then was).
It is also well established that where there is other evidence to support a judgment, the judgment, in spite of the error of the trial Judge, will not be vitiated. See Diamond Bank Ltd v. Partnership Investment Co Ltd (2009) 18 NWLR Part 1172 Page 67 at 95 Para G-H, per Ogbuagu JSC.
In the instant case, the evidence of PW1, Muhammadu Lawal, is that he is a farmer and cattle rearer. He belongs to an Association set up to stop thieving, rape and the taking of drugs.
The Respondent reported at their Associations Headquarters that some people stole 22 cows belonging to him. The 2nd Appellant was arrested with a double barrel gun. He (2nd Appellant) however refused to speak on the missing 22 cows for fear of the 1st Appellant, his fathers younger brother, who, he said, would beat him. When assured of his safety, he admitted that on the day of the theft, there was the theft of 22 cows. He saw when the 1st Appellant gave some unknown persons the 22 cows.
The witness stated further that when they asked the 1st Appellant for his comments, he responded that the cows are near the river. They (PW1) refused his pleas not to take him to the Police with the gun recovered, in spite of his offer to bribe them with N10,000 each and insisted on reporting him to the Police. When they got to the river, they were unable to come back with the cows.
Under cross examination, the witness said he is the Secretary of the Association and had been in the Association for 5 years. The cows were not recovered by his people as they were not seen but were eventually discovered.
The evidence of PW2, Alhaji Sule Umaru, also a farmer and cattle rearer, was a confirmation of the evidence of PW1 with regard to the report made by the Respondent to the Organisation of the theft of his cattle and their arrest of the 1st Appellant, who, he confirmed, had a gun in his possession. The 1st Appellant, he said, insisted on the arrest of his son, Musa (2nd Appellant). Musa initially refused to say anything for fear of being beaten by the 1st Appellant. The 1st Appellant admitted that all the cows were at the riverside, with one Sanusi. Sanusi was arrested, also with a gun but escaped. They apprehended him trying to run away with the cows.
Under cross-examination, the witness stated that he had been a member of the Association for 7 years, since its inception. He mentioned names of other members of the Association and the purpose for which the Association was set up.
Both witnesses stated that the 1st Appellant had been reported to them before.
The evidence of PW3, Balele Shuaibu, also a farmer and cattle rearer and the son of the Respondent, is that 22 cows were stolen by the Appellants. They located 9 out of them, 13 having been sold. They searched for them for over a year, eventually locating them in Zurmi.
They were directed to go with the Village Head, Magaji Kusada with his Security men to collect the cows. The Appellants were released on bail. The Emir of Zurmi insisted on handing over the cows to the Village Head of Charanchi with his security men. They were asked to pay them N51,900.00 for looking after the cows. They sold one of their cows to raise the money for payment. He described the cows stolen and their various prices.
Under cross examination, when questioned as to whether he saw the Appellants stealing the cows, he insisted that they are the ones as that is their (Appellant) business stealing peoples cow He reiterated the number of pregnant cows and the manner of arrest of the Appellants and the retrieval of the cows. He also reiterated that they were able to trace 9 of the cows, while the Appellants had disposed of 13.
The learned trial Judge, following a review of the evidence of the witnesses, held as follows, at Page 34 of the Record:
As I have said earlier the testimony of the plaintiff witnesses was neither challenged nor discredited. The witnesses were cross examined but the said cross examination did not controvert what they said nor discredit them as witnesses of truth.
It is in view of the foregoing that I refer to the case of Garba v Zaria (supra) page 65 66 paragraphs H B on treatment of unchallenged and uncontroverted evidence. Where evidence is unchallenged, only minimal proof is required of the person upon whom the burden of proof lies.
In the circumstances the evidence of the plaintiff cannot by any stretch of imagination be referred to as minimal it is ample evidence which was neither challenged nor controverted hence it is believed by this Court. The failure to discredit, controvert the eloquent testimony of PW3 is fatal to the defendants.
On the whole, in view of the foregoing, I hold that the plaintiff has proved his case on balance of probabilities, I hereby enter judgment in his favour.
As observed by the trial Judge and which I agree with, the evidence of the Respondents witnesses was cogent and compelling. Their evidence was not challenged or discredited by the defence. Indeed the defence presented no witnesses to disprove the evidence of the Respondents witnesses. In addition, the Appellants confessed to the crime.
A confession has been held to be the best form of evidence in a criminal trial. See FRN v Dairo (2015) 6 NWLR Part 1454 Page 141 at 179 Para G-H per Nweze JSC.
The desirability of corroborative evidence in addition to the oral confession made to PW1 and 2 was also satisfied in this case, I hold, by the evidence of the Respondents witnesses.
Thus, though the trial Judge erred in holding the standard of proof to be on the balance of probabilities and preponderance of evidence, the allegation against the Appellants, I hold, was proved beyond reasonable doubt.
Proof beyond reasonable doubt has been held not to mean proof beyond a shadow of doubt but proof with a high degree of probability that the offence was committed. See Udo v State (2016) 12 NWLR Part 1525 Page 1 at 43 Para A-B, per Peter-Odili JSC; Ehimiyein v State (2016) Part 1538 Page 173 at 198 Para E-F by the same learned jurist.
In the instant case, there was a high probability, from the uncontradicted evidence of the Respondents witnesses that the offence was committed.
PW1 and PW2 were members of the Association set up to curb the prevalence of rape, theft and drugs, and to which Association the Respondent lodged a report. They investigated and apprehended the Appellants, who admitted the crime. The Appellants were also arrested with guns. Some of the cows were also recovered. The evidence of PW3, who kept the cows was also direct and compelling. Their cross examination did not challenge the theft and subsequent apprehension of the Appellants or their admission of the offence, neither was it discredited.
The Appellants, by their failure to not only challenge the Respondents witness in any material particular or present witnesses in disproof thereof, failed to disclose any doubt to the Respondents allegation, I hold.
As held by the Supreme Court in the case of Nwadike v Ibekwe (1987) 18 NSCC Part 2 P 1219 at 1230 lines 30 35, per Agbaje JSC :
A statement of law to the effect that where there is an absence of defence to a Plaintiffs case the only alternative is to give judgment for the Plaintiff cannot be faulted.
Thus, even though the lower Court erred in putting the standard of proof to be on the balance of probabilities and preponderance of evidence, this error, I hold, did not occasion a miscarriage of Justice, as it is clear from the uncontroverted facts of this case, that the allegation of theft against the Appellants was proved beyond reasonable doubt.
Counsel also alleged that there was a contradiction between the evidence of the Respondents witness, PW3, where he stated under cross examination, that only 9 cows were recovered and 13 were disposed of, and the Respondents pleadings that there were 10 cows discovered. He submitted that where evidence of a party goes contrary to pleadings, it should be discountenanced.
While there is a slight discrepancy in the number said to be recovered, the Statement of Claim stating them to be 10 while PW3 in his evidence in chief and cross examination said them to be 9, there is no prejudice to the Appellants, as the lower Court, in its 3rd relief granted, ordered for payment to be made for the lesser number of 12 cows pleaded as missing rather than for 13, which would have been the case had it been 13 cows proved to have been missing.
The lower Court held:
The defendants are hereby compelled to produce the cows belonging to the Plaintiff (together with their young ones delivered by the pregnant one among them) belonging to the Plaintiff which they unlawfully misplaced or in the alternative pay the cost of the 12 cows being the sum of N1,330.000.00 only.
It is a general principle of law that where a party claims a particular amount but was able to prove less, a Court has the power to award the less amount proved but not more than what the party has claimed. See Jeric Nigeria Ltd v. UBN Plc (2000) 15 NWLR Part 691 Page 447 at 464 Para F per Kalgo JSC; First Bank of Nigeria PLC v. Dr. Abdulkadir Oniyangi (2000) 6 NWLR Part 661 Page 497 at 513 Para A, per Onnoghen JCA (as he then was).
In resolving the 3rd issue for determination against the Appellants, I hold that the Respondent successfully proved its case in accordance with the law and that judgment was rightly entered against the Appellants.
Having resolved all the issues against the Appellants, I hold that this appeal totally lacks merit and it is hereby dismissed.
Costs of N50,000 are awarded against the Appellants.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading the draft judgment of my Lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with the reasoning and conclusions of my Lord on all the issues in this appeal. I see no need to add anything to further buttress the judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Adefope-Okojie, JCA. Therein, my learned brother eloquently demonstrated in-depth understanding of the issues for determination in the appeal by applying the law to established facts.
Therefore, I am in agreement with him that this appeal is totally devoid of merit and ought to be, and was rightly dismissed by him.
Appearances:
Parties absent and unrepresentedFor Appellant(s)
Parties absent and unrepresentedFor Respondent(s)
