ANAGOR v. EFAB PROPERTIES LTD & ANOR
(2022)LCN/16214(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 12, 2022
CA/ABJ/CV/359/2020
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
CHUKWUEMEKA ANAGOR APPELANT(S)
And
1. EFAB PROPERTIES LIMITED 2. ROYAL DIADEM BUSINESS LOGISTIC LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE THERE IS CONTRADICTION IN THE EVIDENCE OF WITNESSES CALLED BY A PARTY ON THE MATERIAL FACTS HE RELIES
Generally speaking, the law is that where there is contradiction in the evidence of witnesses called by a party on the material facts he relies, such evidence should, not be believed and relied on by a Court, see IGE & ANR V AKOJU & ORS supra.
Evidence is said to be contradictory, where they affirm the contrary or opposite of what the other states. The evidence of DW2 and 3 are in direct conflict in this regard with that of the Appellant; clearly, those of DW2 and 3 would be unreliable in the proof of the time frame within which payment was made by the Appellant to the 1st Respondent; see: ONUBOGU V. STATE (1974) 9 SC. 1, MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR 393 and YUSUF V. OBASANJO (2006) ALL FWLR (294) 387. Having said that, there is a caveat, that it is only when the contradiction in the pieces of evidence is on material facts in issue in the case that it would be disregarded by the Court as unreliable. However, where they only amount to minor discrepancies that do not touch or affect the substances of the facts they relate to, they are not material and would be ignored, because the absence of discrepancy in the testimony of witnesses called by a party would easily give the reasonable impression that such evidence is doctored, See: JEGEDE V. BAMIDELE (2006) ALL FWLR (303) 308, OLADELE V. STATE (1991) 1 NWLR (170) 708.
It is a matter of common sense that there would always be little variations and differences in evidence of witnesses on the same subject matter, because human beings are not machines. So, if witnesses give evidence on the same subject matter or event exactly on every minute detail, a Court should suspect such evidence because of a possibility of tutoring. Thus, where there are differences in evidence of witnesses here and there, that in itself shows truthfulness in testimonies; that is not to say violently contradictory evidence should be tolerated.
‘Contradiction’ simply means to speak or affirm the contrary, see IKEMSON V. STATE (1989) NWLR PT.110 PG. 455. PER MUSTAPHA, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES
At this juncture, one cannot help but note also that even without the issue of the $200,000, among other things, the Appellant as claimant failed to establish his entitlement to the reliefs claimed, and the trial Court was right in every sense of the word in dismissing the claim of the Appellant at trial in view of the evidence before it. The Appellant as claimant has to prove his claim, and the standard of proof is on a preponderance of evidence or balance of probabilities; see LONGE V FBN (2006) 3 NWLR (PT. 967) 228 AND ITAUMA V AKPA-IME (2000) 7 SC (PT. II) 24. A claimant cannot rely on the weakness of the opposite party in order to succeed, but must rely on the strength of his own case; see: IMAM V SHERIFF (2005) 4 NWLR (PT. 914) 80; ELIAS V OMO-BARE (1982) 2 SC 25 AND AGBI V OGBEH (2006) 11 NWLR (PT. 990) 65. Where the claimant fails to discharge the burden of proof, as in this case, he will fail. PER MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Federal Capital Territory, Abuja, delivered on the 6th of July, 2017, by Hon. Justice O. A. Musa, in FCT/HC/2443/12; filed under the undefended list procedure, wherein the following reliefs were sought at trial:
a. AN ORDER directing the 1st Defendant to immediately refund the Plaintiff the sum of N29,400,000 (Twenty-Nine Million, Four Hundred Thousand Naira) being the total sum of money paid to the 1st Defendant for four (4) shops at Efab Shopping Mall which the 1st Defendant has failed to deliver to the Plaintiff.
b. Interest at the rate of 21% per annum on the judgment sum from the 3rd day of June, 2008 until the judgment sum is liquidated.
c. The sum of N5,000,000 (Five Million Naira) as damages.
It is important to point out from the onset that O. Ajoku Esq., of counsel for the 1st Respondent withdrew the objection at paragraphs 4.0 to 4.8 at pages 4 to 6 of the 1st Respondent’s brief filed on the 18th of February, 2021, and it was struck out, as a consequence the Appellant withdrew the reply to the said objection in the reply brief, ditto for the 2nd Respondent.
The notice of appeal was filed on the 6th of October, 2017; it is at pages 622 to 629 of the record of appeal. The Appellant’s brief was filed on the 6th of July, 2020, but deemed properly filed on the 25th of January, 2022, and the reply brief on the 10th of March, 2022. The 1st Respondent’s brief was filed on the 18th of February, 2022, while the 2nd Respondent’s brief was filed on the 9th of March, 2022. The additional record of appeal was filed on the 10th of March, 2022, but deemed properly filed on the 15th of March, 2022.
FACTS IN BRIEF:
The Appellant’s claim at trial was for the refund of the sum of N29,400,000, paid to the 1st Respondent, on the 3rd of June 2008, for shops to be built by the 1st Respondent, who refused to deliver the shops despite repeated demand.
The Appellant later brought two bank tellers in the sum of N29,400,000 both dated 3rd of June, 2008 as Exhibits AA1 and AA2 respectively; and also tendered Exhibits AA3, AA4 and AA5.
The 1st Respondent on the other hand contends that one C.F. Attang elected and agreed to pay N7,500,000 per shop for six shops on behalf of the 2nd Respondent, totaling N45,000,000; and paid N15,000,000 into the account of the 1st Respondent in furtherance thereof, and was issued receipts of payment in the name of the 2nd Respondent.
The 2nd Respondent contended that the Appellant was its servant and branch manager, and the sum of N29,400,000 he paid to the 1st Respondent was on behalf of the 2nd Respondent, and the receipt for the amount was duly issued to the 2nd Respondent by the 1st Respondent; in proof of which it tendered 18 Exhibits.
The trial Court dismissed the Appellant’s claim; dissatisfied, the Appellant appealed by a notice of appeal dated and filed on the 6th of October, 2017, on the following grounds shorn of their respective particulars; the notice of appeal is at pages 622 to 629 of the record:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred in law when he held that “the case of the plaintiff borders on breach of contract and this Court will prove to examine the pleadings of the plaintiff and the evidence proffered in order to arrive at a conclusion as to whether the plaintiff has proved his case” and consequently held that the plaintiff did not prove his case.
GROUND TWO:
The decision of the learned trial Judge is against the weight of evidence before the Court.
GROUND THREE:
The learned trial Judge relied on facts not pleaded before the Court to arrive at its decision.
GROUND FOUR:
The decision of the learned trial Judge is perverse.
From these grounds, the following issues were formulated for determination on behalf of the Appellant:
ISSUES FOR DETERMINATION:
1. Whether the Appellant proved ownership of the sum of N29,400,000.00 (Twenty Nine Million, Four Hundred Thousand Naira), subject matter of this suit and so whether the trial Court was right to have sanctioned the transfer of the said sum to the 2nd Respondent. (This issue is distilled from Grounds 1 and 2 of the Notice of Appeal)
2. Whether the learned trial Judge relied on facts not pleaded to arrive at its erroneous decision. (This issue is distilled from Ground 3 of the Notice of Appeal)
3. Whether the decision of the learned trial Judge is perverse in view of his refusal to take cognizance or make pronouncement on germane undisputed facts established by the Appellant at the Court bellow. (This issue is distilled from Ground 4 of the Notice of Appeal)
The 1st Respondent formulated a sole issue for determination as follows:
1. Whether the trial Court was right in dismissing the case of the appellant.
The 2nd Respondent adopted the sole issue formulated on behalf of the 1st Respondent.
The sole issue formulated by the first Respondent and adopted by the second suffices for the determination of this appeal, not least because it encompasses all the issues formulated by the Appellant.
It is submitted for the Appellant that he paid a total sum of N29,400,000 to the 1st Respondent in his name; with no evidence anywhere showing that the sum of $200,000 was given to him to pay the 1st Respondent on behalf of the 2nd Respondent, nor is there evidence that the exchange rate of the $200,000 which he was expected to change and pay on behalf of the 2nd Respondent, at that point in time, was equivalent to N29,400,000.
That the Appellant has discharged the burden placed on him, having established that he is the bona fide owner of the sum of N29,400,000 paid to the 1st Respondent on the 3rd of June 2008, and that the Respondents failed to disprove same; learned counsel referred the Court to Sections 131, 132 and 133 of the Evidence Act, 2011 and BULLET INTERNATIONAL NIG. LTD & ANR V DR MRS. OMONUKE OLANIYI & ANR (2017) LPELR-42475-SC.
Learned counsel further submits that while the Appellant paid the N29,400,000 on the 3rd of June, 2008, both DW2 and DW3 contradicted themselves when they claimed that the $200,000 was handed to the Appellant on the 7th of June, 2008 for payment to the 1st Respondent; the Court was referred to WACHUKWU & ANR V OWUNWANNE & ANR (2011) LPELR-3466 and MATTHEW V OTABOR (2015) 14 NWLR part 1479 page 360.
That DW2 who claimed to have given $200,000 to the Appellant failed to make available to the Court any form of acknowledgment by the Appellant, even though other monies given to the Appellant were acknowledged as received, but no such acknowledgment was shown in this case; thus lacking credibility and reliability, learned counsel referred the Court to AGBI & ANR V OGBEH & ORS (2006) LPELR-SC 63.
That also Exhibits DB1-7, the audit report which contains all transactions of the 2nd Respondent did not state anywhere that the 2nd Respondent had shops or cash transactions worth N29,400,000 and further that, Mr. Kenneth Ezesili the desk officer who collected the bank tellers in the office of the 1st Respondent was not called to testify in proof of the claim that the payment made by the Appellant was on behalf of the 2nd Respondent; the Court was referred to ADAMU V STATE (2019) LPELR-46902-SC DIM CHUKWUEMEKA ODUMEGU-OJUKWU V UMARU MUSA YAR’ADUA & ORS (2007) LPELR-9008-CA.
Learned counsel submits that the Appellant tendered documentary evidence to demonstrate that the money deposited belonged to him and that the transaction was in his personal capacity, whereas the Respondents merely relied on oral evidence that the 2nd Respondent gave the Appellant the money to pay the 1st Respondent on its behalf; the Court was referred to OGUNDELE & ANOR V AGIRI (2009) LPELR-2328-SC to buttress that where oral and documentary evidence are in conflict documentary evidence should be preferred.
It is further submitted for the Appellant that the trial Court relied on facts not pleaded, and thereby misdirected itself to arrive at a wrong decision; because a close look at Exhibits DB8-18 and paragraphs 3, 4, 5, 6 and 7 of the Appellant’s statement of claim at pages 113-114 will reveal that the 1st Respondent admitted collecting the money, but its defence was that the payment was on behalf of the 2nd Respondent and that this claim was denied by the Appellant in his reply to the 1st Respondent’s statement of defence at page 173 of the record; and also that it was not stated anywhere that the same shops mentioned in suit No. HC/FCT/CV/1059/2009 were the same with shops in issue; learned counsel referred the Court to UNION BANK OF NIG. LTD V CHUKWUELO CHARLES OGBOH (1995) LPELR-SC 3387.
That the 2nd Respondent did not state in its defence that the N29,400,000 paid by the Appellant to the 1st Respondent was transferred into the Appellant’s account through various sums of money via the Appellant’s Zenith account for payment of the same shop by the Appellant as held by the trial Court, especially as it is not stated anywhere in Exhibits DB8-18 that the shops mentioned in that suit the shops in issue before the trial Court.
It is further submitted that the judgment of the trial Court is perverse in view of the fact that even though both the Appellant and the 2nd Respondent claimed ownership of the N29,400,000, it is the Appellant who through Exhibits AA1-2 established payment in his own name, and also that on the 7th day of June, 2008 when the 2nd Respondent claimed payment in cash to the Appellant, the claim is four days after the Appellant made payment to the 1st Respondent, and so the money could not have been given to him by the 2nd Respondent; learned counsel referred the Court to BUHARI V INEC (2009) 7 WRN 1 174.
It is submitted for the 1st Respondent in response that the valid elements of a contract are offer acceptance, consideration and intention to create legal relationship as well as capacity; and that by virtue of Section 131, 132 and 133 of the Evidence Act, 2011, the burden is on the Appellant to prove the existence of a contract between him and the 1st Respondent for the purchase of shops; and that it is not the case of the Appellant that the 1st Respondent offered him a shop to purchase; the Court was referred to KEENLINE INVESTMENT LTD & ANR V PATERSON ZACHONIS INDUSTRIES PLC (2021) LPELR-54933-CA.
That for an offer to be valid it must have been made to the Appellant by the 1st Respondent on clear terms indicating the type of shop, the shop numbers and mode of payment, and the Appellant failed to lead evidence on how he obtained the account numbers of the 1st Respondent or had any interaction with them prior to the submission of bank tellers at the first Respondent’s office and the issuance of receipt.
It is further submitted that the only evidence that the money belongs to the Appellant was that he deposited the money in the 1st Respondent’s account; learned counsel contends, deposit of money in someone’s account is not a conclusive proof of ownership of the money.
That it was not the Respondents’ case at the lower Court that the Appellant was not the depositor of exhibits AA1 and AA2, as there was unchallenged evidence to establish that the 1st Respondent offered six shops to the 2nd Respondent and gave its bank details to C.F Attang for payment; the Appellant was a staff of the 2nd Respondent on a monthly salary of N50,000, and it was the practice of the 2nd Respondent to give money to the Appellant to buy properties and the Appellant did not demand for the shops or refund of the money until 4 years after collecting Exhibits D1 and D2 (the receipts) issued to the 2nd Respondent and had quarreled with the 2nd Respondent and was relieved of his employment.
That also contrary to the contention of learned counsel for the Appellant, a Court can make use of Exhibits properly tendered and admitted before it in reaching its decision; CHIEF JOHN ALAGA V HON JARIGBE AGOM JARIGBE & ANR (2020) LPELR-52382-CA.
Learned counsel also submits that the contradiction on the date the $200,000 was handed over to the Appellant to change was merely a discrepancy on the day and not the month or year; especially as the material evidence of giving the Appellant the $200,000 was not contradicted, the Court was referred to IREGU EJIMA HASSAN V THE STATE (2016) LPELR-42554-SC.
It is important to note that the 2nd Respondent’s brief is a verbatim copy of the first Respondent’s brief; even though the interest of the two parties appears the same, one would have expected counsel on both sides to give the Court the benefit of what each of them thinks of the Appellant’s case, and not simply to copy the brief of another, word for word, even though there is nothing wrong in law with that.
Be that as it may, It is submitted for the 2nd Respondent in response that the burden is on the Appellant to prove the existence of a valid contract between it and the 1st Respondent for the purchase of shops in the 1st Respondent’s mall, and that can only be done by establishing the existence of a valid contract between the Appellant and the 1st Respondent, learned counsel referred to AMANA SUITS HOTELS LTD V PDP (2006) LPELR-11675-CA.
That the only evidence indicating the money belongs to Appellant was that he was the depositor of the money in the 1st Respondent’s account, and that deposit of money in someone’s account is not a conclusive proof that the money belongs to the depositor.
That also it was not the case of the Respondents at the lower Court that the Appellant was not the depositor of Exhibits AA1 and AA2; and also that there was unchallenged evidence that the 1st Respondent offered six shops to the 2nd Respondent; the Appellant was a staff of the 2nd Respondent at a monthly salary of N50,000.
Learned counsel submits that it is unimportant that the Mr. Kenneth Ezesili was not called to give evidence that the Appellant introduced himself as the 2nd Respondent’s manager; YAHAYA YUSUF AYODEJI V FED REP OF NIG (2018) LPELR-45839-CA; and also that the evidence of the Appellant in suit No CV/1059/09 supports the evidence of the 1st Respondent.
That the contradiction in the date the sum of $200,000 was handed over to the Appellant and the date on Exhibits AA1 and AA2 is a mere discrepancy, learned counsel referred to IREGU EJIMA HASSAN V THE STATE (2016) LPELR-42554-CS.
Also that the Appellant is not a credible witness worthy of being believed, because under cross-examination he claimed he could not remember his emolument.
In reply to both the 1st and 2nd Respondents, it is submitted that the Appellant is not seeking to enforce the contract for the delivery of the shops but a refund of the deposit of N29,400,000 made to the 1st Respondent; and that if the Appellant has to prove a contract, the payment of the said amount, in the Appellant’s name, in itself, is proof of the existence of a contract; SPARKLING BREWERIES LTD V UNION BANK OF NIG. LTD (2001) LPELR-3109-SC.
That when the evidence of both parties is placed on a scale it will tip in favour of the Appellant; NWAKWO & ORS V NWEME & ANR (2020) LPELR-50816-CA; and also that the contradiction in dates is not a discrepancy, but a mistake that goes to the root of the case.
RESOLUTION OF THE SOLE ISSUE:
It is clear from Exhibits AA1 and AA2 that the Appellant deposited the money in issue i.e. N29,400,000 into the 1st Respondent’s account. That much is not in dispute. What is in dispute is whether the said payment, for the purchase of shops, was done for and on behalf of the 2nd Respondent or directly that of the Appellant.
From a careful scrutiny of the facts and evidence, it is clear and without doubt that the 1st Respondent’s offer of shops for sale was indeed made to the 2nd Respondent, and details of the 1st Respondent’s bank account given to Mr. Attang, the head of the 2nd Respondent, for eventual payment, see page 127 of the record of appeal. There was no direct agreement or offer to the Appellant. Furthermore, as rightly submitted for the Respondents, one cannot help but acknowledge that the shop numbers as stated in the Appellant’s statement on oath, is the same with shop numbers in Exhibits D1 and D2, issued in the name of the 2nd Respondent; see also Exhibits DB 18 to DB18 at pages 212 to 217 of the record of appeal.
I agree also that the authority of BULLET NIGERIA LIMITED & ANR V DR MRS OMONIKE OLANIYI & ANR supra cited in support of the Appellant’s case is least appropriate in the circumstances, because the issues in contention are completely different, just as the facts do not bear out learned counsel’s contention.
The Appellant, evidently got to be involved, by reason of the fact that he was a staff of the 2nd Respondent; see pages 192 to 196 of the record of appeal. Even though the Appellant was evasive in admitting his emoluments of N50,000 a month; it can safely be said that he could not have worked for the 2nd Respondent for free.
This Court cannot help but agree with the trial Court’s findings, not least because the trial Court had the opportunity of seeing and hearing the witnesses, before arriving at the conclusion it did. A conclusion reached justifiably, without an explanation as to how a staff on a salary of N50,000 a month could claim benefit of payment of N29,400,000 in respect of shops, the 2nd Respondent who is the employer claims to be its own, especially in view of Exhibits D1 and D2 written in the name of the 2nd Respondent. While it is true that demeanor of a witness may not be a guide to the truth, the conclusions of a trial Judge on how a witness behaved in the box should not be lightly disregarded; see IGE & ANR V AKOJU & ORS (1994) LPELR-1451-SC.
While it is very important for the Respondents to call the witnesses they need to establish their case, there is no hard and fast rule on the need or necessity to call a particular witness, especially where documentary evidence is in issue. This is so, because the furnishing of particulars by a witness is not a measure of its veracity, particularly in this case where parties have tendered relevant documents, which represent evidence of some more or less permanent or perhaps unassailable character; see OLUJINLE V. ADEAGBO (1988) 2 NWLR (PT. 75) 238.
The failure or refusal to call Mr. Kenneth Ezesili counts for little in the circumstances, because in a case like this in which documentary exhibits have been admitted in evidence, the assessment of the documents presented as exhibit is good enough for the determination of the rights and obligations of the parties, as was done by the lower Court; OGUNAMEH & ORS V ADEBAYO & ORS (2007) LPELR 8722-CA.
With regard to the judgment in HC/FCT/CV/1059/2009 tendered and admitted, the trial Court was right to have relied on exhibits DB8-18, in arriving at the conclusion that the Appellant failed to establish or prove his case, thus disentitling him to the reliefs sought.
It has to be borne in mind, as it is settled that a plaintiff in an action may plead and rely on a previous judgment in his favour in the sense that it constitutes relevant fact to the issue in the present action and the judgment will be conclusive of the facts which it decided; See UKAEGBU AND OTHERS V. UGOJI AND ANOTHER (SUPRA); ESAN V. OLOWA (1974) 3 SC 125.
DW2 and 3 stated in evidence, apparently erroneously, that the sum of $200,000 was given to the Appellant on the 7th of June, 2008, when in truth, from the evidence the Appellant paid the 1st Respondent on the 3rd of June, 2008, and not the 7th. The Appellant calls it a contradiction in terms while the Respondents called it a mere discrepancy.
Generally speaking, the law is that where there is contradiction in the evidence of witnesses called by a party on the material facts he relies, such evidence should, not be believed and relied on by a Court, see IGE & ANR V AKOJU & ORS supra.
Evidence is said to be contradictory, where they affirm the contrary or opposite of what the other states. The evidence of DW2 and 3 are in direct conflict in this regard with that of the Appellant; clearly, those of DW2 and 3 would be unreliable in the proof of the time frame within which payment was made by the Appellant to the 1st Respondent; see: ONUBOGU V. STATE (1974) 9 SC. 1, MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR 393 and YUSUF V. OBASANJO (2006) ALL FWLR (294) 387. Having said that, there is a caveat, that it is only when the contradiction in the pieces of evidence is on material facts in issue in the case that it would be disregarded by the Court as unreliable. However, where they only amount to minor discrepancies that do not touch or affect the substances of the facts they relate to, they are not material and would be ignored, because the absence of discrepancy in the testimony of witnesses called by a party would easily give the reasonable impression that such evidence is doctored, See: JEGEDE V. BAMIDELE (2006) ALL FWLR (303) 308, OLADELE V. STATE (1991) 1 NWLR (170) 708.
It is a matter of common sense that there would always be little variations and differences in evidence of witnesses on the same subject matter, because human beings are not machines. So, if witnesses give evidence on the same subject matter or event exactly on every minute detail, a Court should suspect such evidence because of a possibility of tutoring. Thus, where there are differences in evidence of witnesses here and there, that in itself shows truthfulness in testimonies; that is not to say violently contradictory evidence should be tolerated.
‘Contradiction’ simply means to speak or affirm the contrary, see IKEMSON V. STATE (1989) NWLR PT.110 PG. 455.
While there is difference in the two dates given by DWs 2 and 3 with that of the appellant, I do not see the contradiction as material enough to affect the substance of the issue, which is, whether when the appellant made the payment, he made it for himself or on behalf of the 2nd Respondent as it were. The difference strictly speaking is on the dates, not the month or year. To that extent, the evaluation of evidence by the trial Court cannot be faulted either, not least because it appreciated the facts in issue before arriving at its decision.
There is a complaint on evaluation of the evidence adduced before the lower Court; that being so, it should be noted from the onset that evaluation of relevant and material evidence adduced by the parties and the ascription of probative value to it are the primary functions of a trial Court before which the witnesses appear. The position of the law is that where a trial Court fully and properly evaluated the relevant evidence placed before it and drew the right inferences from the facts by ascription of probative value to such evidence, an appellate Court would have no reason to interfere with such an evaluation. This is because an appellate Court does not try a case and does not see and hear witnesses testify and as a result, does not experience the subtle and often influencing nuances of the physical appearances of such witnesses. It is not the function of this Court to interfere with the assessment or evaluation by a trial Court merely because it would have reached a different conclusion on some or even all the facts in the case.
This Court is not likely to interfere with the decision of the lower Court in the circumstances of this case, especially in view of the impeccable manner in which the evaluation was carried out by analyzing both oral and documentary evidence of the parties before arriving at its decision. Noting especially that the Appellant failed to establish the existence of a contract between him and the 1st Respondent.
The claim of the Appellant was not helped by the fact that he was fully aware, particularly of Exhibits D1-2 and D8-18 by reasons of which the 2nd Respondent was entitled to the shops. His failure to protest Exhibits D1 and 2 when they were handed to him, bearing the name of the 2nd Respondent is clear indication of the weakness of his claim.
At this juncture, one cannot help but note also that even without the issue of the $200,000, among other things, the Appellant as claimant failed to establish his entitlement to the reliefs claimed, and the trial Court was right in every sense of the word in dismissing the claim of the Appellant at trial in view of the evidence before it. The Appellant as claimant has to prove his claim, and the standard of proof is on a preponderance of evidence or balance of probabilities; see LONGE V FBN (2006) 3 NWLR (PT. 967) 228 AND ITAUMA V AKPA-IME (2000) 7 SC (PT. II) 24. A claimant cannot rely on the weakness of the opposite party in order to succeed, but must rely on the strength of his own case; see: IMAM V SHERIFF (2005) 4 NWLR (PT. 914) 80; ELIAS V OMO-BARE (1982) 2 SC 25 AND AGBI V OGBEH (2006) 11 NWLR (PT. 990) 65. Where the claimant fails to discharge the burden of proof, as in this case, he will fail.
It is for these reasons that I now resolve the sole issue for determination in favour of the Respondents, against the Appellant. Having done so, the appeal fails for lack of merit, and is accordingly dismissed. Judgment of the High Court of the Federal Capital Territory BETWEEN CHUKWUEMEKA ANAGOR V EFAB PROPERTIES LIMITED ROYAL DIADEM BUSINESS LOGISTICS LTD in FCT/HC/2443/12 delivered on the 6th of July, 2017 by Hon. Justice O. A. Musa is hereby affirmed.
Cost of N200,000 is awarded against the Appellant.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading before now, the lead judgment of my learned brother – MOHAMMED MUSTAPHA, JCA.
I agree with his reasoning and conclusion reached in dismissing the Appellant’s appeal as lacking in merit, and I also affirm the decision of the lower Court in Suit No. FCT/HC/2443/12 delivered on the 6th day of July, 2017 by Honourable Justice O. A. MUSA.
I also award the cost of N200,000.00 in favour of the Respondents against the Appellant.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Mohammed Mustapha, JCA, was made available to me in draft.
I agree with the reasoning and the conclusions reached and also dismiss the appeal for lacking in merit. I abide by the order as made including that on costs.
Appearances:
Alexander Oketa, Esq., with him, E. A. Odeh, Esq. For Appellant(s)
Obinna Ajoku, Esq., with him, R. Aguariavwodo, Esq. – for 1st Respondent
A. P. Ameh, with him, F.O.C. Uzoegwu – Esq. for 2nd Respondent For Respondent(s)
