AUDU v. NGURU (2020)

AUDU v. NGURU

(2020)LCN/14800(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/477/2019

RATIO

EVIDENCE: WHETHER THE TRIAL COURT CAN SURRENDER ITS ADJUDICATIVE FUNCTION

It is perceptible from this brusque excerpt which forms the nucleus of the Judgement, that the lower Court did not make any attempt to evaluate the evidence placed before it, much less arriving at a conclusion on its probative value. Instead, it simply reproduced the entire assessment of the evidence as presented by both Counsel in their final addresses and then preferred that of the Respondent’s Counsel. With due respect, this was injudicious. It also smacks of willful neglect of the primary judicial duty imposed on the trial Judge by law. By so doing, the trial Court surrendered its sacred adjudicative function to Counsel. The law does not give it the liberty to do that. In the eyes of the law, that imprudent judicial act is pregnant with dire consequences. Thus, the trial Court failed in its avowed duty to evaluate the evidence before it. Therefore, its decision and orders are perverse – Ihunwo V Ihunwo (2013) LPELR-20084(SC); Ovunwo V Woko (2011) 17 NWLR (pt. 1277) 522, 547, per Chukwuma-Eneh, JSC. PER HANNATU SANKEY, J.C.A.
EVIDENCE: NATURE OF EVALUATION OF EVIDENCE

The evaluation of evidence is a critical process in the adjudication of disputes. It involves the reviewing and analyzing of the evidence presented in a case with a view to ascribing value towards arriving at a decision. A Court must perform this sacred duty of evaluating evidence in order to ensure its veracity and/or authenticity as well as weight. In carrying out this function, the Court should state in clear terms its findings based on such a proper exercise of evaluation and the ascription of probative value. The legal position is that a Court cannot resolve the conflict(s) between parties without evaluating conflicting evidence presented to it and arriving at a just decision.
Thus, any failure to evaluate evidence will not only vitiate the findings of such a Court but will also give the appellate Court the authority to step in to evaluate and make proper findings. However, this is only possible where the evidence in regard to the oral testimony of witnesses and findings of fact do not depend on the credibility of witnesses. See Iheakam V FBN Plc (2017) LPELR-43545(CA) 12; Tukur V Uba (2012) LPELR-9337(SC); Jimoh V Akande (2009) 1 SCM 34; Okomalu V Akinbode (2006) 9 NWLR (Pt. 985) 338; FSB Int. Bank V Imano (Nig.) (2000) 11 NWLR (Pt. 679) 626.

The law is settled that the duty of evaluating the evidence adduced in a case and ascribing probative value thereto lies within the bosom of the trial Court.

Thus, an appellate Court does not unduly interfere with the findings of the trial Court where such has been dutifully carried out. However, where a trial Court fails in its duty to evaluate the evidence adduced, an appellate Court does not play the role of a helpless onlooker and is bound to interfere with the findings of the trial Court where a refusal to do so will occasion injustice. The appellate Court should certainly intervene and do what justice requires. It must not abdicate its own responsibility and rubber stamp an error however glaring. See Deputy Sheriff, Kaduna State High Court V Keystone Bank (2015) LPELR-25876(CA) 20-21, F-D; Lawal V Dawodu (1972) 8-9 SC 83, 114-115. Thus, pursuant to Section 15 of the Court of Appeal Act, 2004, this Court is obliged to step into the shoes of the trial Court to evaluate the evidence on Record and make proper findings thereto. PER HANNATU SANKEY, J.C.A.

DOCUMENT: DOCUMENT SHOULD SPEAK FOR ITSELF

Since the law is settled that a document speaks for itself, PER HANNATU SANKEY, J.C.A.

FRAUD: MEANING AND NATURE OF FRAUD

Fraud is defined as a willful act on the part of anyone whereby another is sought to be deprived by illegal or inequitable means of what he is entitled to. It means a deliberate deception intended to gain an advantage. For the purpose of civil law, fraud includes acts, omissions, and concealment by which an undue and unconscientious advantage was taken of another – Union Bank of Nigeria V Ironbar Esq. (2010) LPELR-5057(CA) 28, B-C, per Ngwuta, JCA (as he then was); Umanah V Obong Attah (2006) LPELR-3356(SC) 40, C-E, per Onnoghen, JSC; Adimora V Ajufo (1988) LPELR-182(SC) 16, E-G, per Oputa, JSC; Onuchukwu V Nnoli (2013) 21223(CA) 19, C-A. PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

JAMES AUDU APPELANT(S)

And

HAJIYA HABIBA LAWAN NGURU RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This Appeal is against the Judgement of the High Court of Justice, Borno State in Suit number BOHC/MG/CV/65/2018 delivered on June 27, 2019 by A.Z. Mussa, J.

The brief facts leading to the Appeal are stated succinctly as follows: Apparently, the Appellant advertised two plots of land situate at Musari Dubai Ward in Maiduguri which were up for sale to the Respondent. The plots were going for the sum of N150, 000.00 each. It was clear that he was not the owner or seller of the land. The Respondent indicated her interest in purchasing the plots of land and so sent her house-help, one Suleiman (now deceased), to accompany the Appellant and inspect the advertised land. She then authorized Suleiman to pay the Appellant the total sum of N300, 000.00 for the plots, which he did. Upon payment, the Appellant gave the Respondent the document of title over the land, Exhibit PW1A before the trial Court.

The Respondent contended that she was subsequently unable to develop the plots of land due to the insurgency in the area. When calm was restored and the Respondent

visited the plots, she discovered that a fence had been erected around them and they were being developed. After making efforts to recover the plots which she had paid for through the Appellant to no avail, she reported the matter to the Police, alleging fraud. The Appellant, upon being invited by the Police to answer to the allegation, wrote an undertaking (Exhibit PW4A) wherein he promised to show the Respondent the location of the two plots.

Subsequently, the Respondent filed a suit before the trial Court wherein she claimed against the Appellant as follows vide an Amended Statement of claim:
a) “A Declaration that the defendant having led the claimant into believing and trusting him, and paying N300, 000.00 for the two plots he advertised to her has a duty to identify and show the two lands to the claimant.
b) A declaration that the defendant having failed to identify and show the claimants the two plots which he led her to pay N300, 000.00 for, (sic) her a duty to refusal (sic) the claimant’s money being the purchase price.
c) An order directing the defendant to refund the N300, 000.00 purchase price of the two plots he

advertised to the claimant which price was paid through him.
d) General damages in the sum of N500, 000.00.”

The Appellant denied the claim and filed an Amended Statement of defence in that regard. The parties having joined issues, the case proceeded to trial. The Respondent as Plaintiff, adduced evidence through four (4) witnesses and tendered two (2) Exhibits, while the Appellant as Defendant, testified in his defence and called no other witness. At the close of trial and final addresses of Counsel for both parties on their behalf, the learned trial Judge delivered Judgement in favour of the Respondent/Plaintiff on June 27, 2019. Therein, he ordered the Appellant to refund the purchase price of N300, 000.00 paid by the Respondent through him for the two plots of land; and awarded cost of N30, 000.00 to the Respondent.

Peeved by the outcome of the action, the Appellant filed a Notice of Appeal on October 14, 2019, wherein he complained on two (2) grounds. Therein, he sought for the following reliefs:
i. “To allow the Appeal.
ii. To set aside the Judgement of the lower Court in its entirety.
iii. Order to re-hear the suit.

Any further relief(s).”At the hearing of the Appeal on September 16, 2020, Yusuf Abubakar Esq., learned Counsel for the Appellant, adopted the submissions in the Appellant’s Brief of argument filed on 05-02-20 and settled by Ibrahim Haruna Ngada, Esq. in urging the Court to allow the Appeal and set aside the Judgement of the trial Court. Thereafter, D. Saleh, Esq., learned Counsel for the Respondent also adopted the arguments in the Respondent’s Brief of argument filed on 10-03-20 and settled by Nankham Ayuba Dammo Esq, in urging the Court to dismiss the Appeal as lacking in merit.
In his Brief of argument, the Appellant distilled one sole issue for determination from his two grounds of appeal as follows:
Whether it was proper to enter Judgement without evaluating the evidence and resolving the issues formulated for determination of the Court. (Grounds 1 and 2)

The Respondent, in her Brief of argument, accepted the issue for determination of the Appellant as the issue to be resolved by this Court. Therefore, the Appeal will be resolved on this lone issue.

ARGUMENTS
Whether it was proper to enter

Judgement without evaluating the evidence and resolving the issues formulated for determination of the Court.

Learned Counsel for the Appellant submits that the learned trial Judge did not evaluate the evidence placed before him in arriving at his decision. He contends that PW1 admitted that the Appellant is not the owner of the land and this is buttressed by Exhibit PW1A, the “Purchase of House/Farmland” to which the Appellant and Baba Dodo were witnesses. Also, in the Appellant’s undertaking at the Police Station (Exhibit PW4A) it is stated therein that the Appellant and one Baba Dodo identified the land as witnesses along with some other persons. Counsel thus submits that the failure of the trial Court to evaluate the evidence before the Court has occasioned a miscarriage of justice to the Appellant. Reliance is placed on Mogaji V Odofin (1978) 4 SC 91, 94; Odutola V Mabogunje (2013) 7 NWLR (Pt. 1354) 522, 563, B-D.

Counsel also submits that in the final addresses of Counsel before the trial Court, the issue of cause of action and fraud were raised, which meant the allegation had to be proved beyond reasonable doubt. However, the

trial Court did not resolve these issues. He relies on Anambra State Government V Anambra State House of Assembly (2013) NWLR (Pt. 1341) 236, 256, A-B; Adeniji V Adeniji (2013) 15 NWLR (Pt. 1376) 102, 125, C-E; Opuiyo V Omoniwari (2007) 39 WRN 10-11; (2007) 16 NWLR (Pt. 1060) 415, 430, C-D per Oguntade, JSC.

Counsel submits that the Appellant was only a witness to the transaction and yet he was found liable. He therefore submits that the failure of the trial Court to resolve the issue formulated for determination before it resulted in a gross miscarriage of justice. Counsel therefore urged the Court to allow the Appeal, set aside the Judgement of the trial Court and make an order for a retrial in the interest of justice and fairness.

In response to these submissions, learned Counsel for the Respondent submits that where an Appellant contends that there was no proper evaluation or there was an improper evaluation of evidence or that there was no evaluation of evidence at all, he has a duty to identify the evidence which was not evaluated or not properly evaluated; and he must show that if it was evaluated or properly evaluated, it would have led to a

decision other than that arrived at by the trial Court. Counsel contends that the Appellant failed to do this and thus it is fatal to the Appeal. He relies on Zaccala V Edosa (2018) 6 NWLR (Pt. 1616) 528, 545 & 547; Hashidu V Goje (2004) All FWLR (Pt. 228) 662, 695; Anyafulu V Agazie (2007) All FWLR (Pt. 344) 143, 160.

Counsel submits that the findings and decision of the trial Court were borne out by its assessment of the pleadings and evidence placed before it and that it came to the right conclusion.

In addition, Counsel submits that the trial Court resolved the sole issue placed before it when it held that on the basis of the evidence, the Respondent had proved her claim. Counsel, therefore, urged the Court to resolve this issue against the Appellant and also to dismiss the Appeal.

RESOLUTION
The sole issue for determination in this appeal hinges on the question of whether the trial Court evaluated the evidence presented by the parties before it and ascribed probative value thereto before arriving at its decision in favour of the Respondent/Claimant. I have carefully examined the Judgement of the trial Court in light of the claim

of the Claimant, the respective pleadings of the parties, the witnesses’ statements on oath duly adopted, the viva voce testimonies of the feuding parties and those of their witnesses. The lower Court devoted pages 67 to 87 of the Record to reviewing the evidence and the submissions of both learned Counsel which he reproduced virtually verbatim. In the dying pages of the Judgement, precisely at pages 87 to 88 of the Record, the lower Court stated as follows:
“Considering the pleadings, testimonies, exhibits tendered herein and the written addresses of the learned counsels (sic). The Defendant’s learned counsel formulated a sole issue for determination thus:
“Whether the claimant has disclosed a cause of action that the Defendant is under any obligation to be liable to the Claimant and/or thus in the alternative the Claimant has satisfied that burden of prove to entitle her to the reliefs sought”
While the Claimant adopted the Defendant’s issue for determination, to wit:
“Whether the Claimant has disclosed a cause of action that the Defendant is under any obligation to be liable to the Claimant

and/or thus in the alternative the Claimant has satisfied that burden of prove to entitle her to the reliefs sought”
Carefully perusing the pleadings, testimonies, issues formulated and the authorities cited therein. It is crystal clear that the Defendant is a witness of truth. Reading Exhibit PW4A, revealed that the Defendant undertook to identify the plots the Claimants purchased. If the Defendant only acted as a witness, why did he undertook to identify the plots? Certainly, the Defendant acted more than a mere witness that is why the other witness was not joined as a party. I agree with the Claimant and her witness testimonies, that the Defendant acted more than a witness but a Seller that is why he took to identify the plots.
Ordinarily, if he only acted as a witness, he would have joined the other witnesses in denying the Claimant’s claim but failure to call witnesses to that effect shows that he acted as a trustee, in which he admitted that in cross-examination. In the whole, the claim succeeds.”

It is perceptible from this brusque excerpt which forms the nucleus of the Judgement, that the lower Court did not make any

attempt to evaluate the evidence placed before it, much less arriving at a conclusion on its probative value. Instead, it simply reproduced the entire assessment of the evidence as presented by both Counsel in their final addresses and then preferred that of the Respondent’s Counsel. With due respect, this was injudicious. It also smacks of willful neglect of the primary judicial duty imposed on the trial Judge by law. By so doing, the trial Court surrendered its sacred adjudicative function to Counsel. The law does not give it the liberty to do that. In the eyes of the law, that imprudent judicial act is pregnant with dire consequences. Thus, the trial Court failed in its avowed duty to evaluate the evidence before it. Therefore, its decision and orders are perverse – Ihunwo V Ihunwo (2013) LPELR-20084(SC); Ovunwo V Woko (2011) 17 NWLR (pt. 1277) 522, 547, per Chukwuma-Eneh, JSC.
The evaluation of evidence is a critical process in the adjudication of disputes. It involves the reviewing and analyzing of the evidence presented in a case with a view to ascribing value towards arriving at a decision. A Court must perform this sacred duty of

evaluating evidence in order to ensure its veracity and/or authenticity as well as weight. In carrying out this function, the Court should state in clear terms its findings based on such a proper exercise of evaluation and the ascription of probative value. The legal position is that a Court cannot resolve the conflict(s) between parties without evaluating conflicting evidence presented to it and arriving at a just decision.
Thus, any failure to evaluate evidence will not only vitiate the findings of such a Court but will also give the appellate Court the authority to step in to evaluate and make proper findings. However, this is only possible where the evidence in regard to the oral testimony of witnesses and findings of fact do not depend on the credibility of witnesses. See Iheakam V FBN Plc (2017) LPELR-43545(CA) 12; Tukur V Uba (2012) LPELR-9337(SC); Jimoh V Akande (2009) 1 SCM 34; Okomalu V Akinbode (2006) 9 NWLR (Pt. 985) 338; FSB Int. Bank V Imano (Nig.) (2000) 11 NWLR (Pt. 679) 626.

The law is settled that the duty of evaluating the evidence adduced in a case and ascribing probative value thereto lies within the bosom of the trial Court.

A summary of the claim of the Respondent in her Statement of claim is that she holds the Appellant responsible for tracing and handing over to her the two plots of land which she bought sometime in 2009 and in which he acted as a witness to the transaction, as evidenced by the

purchase receipt, Exhibit PW1A. In her evidence as PW1, she reiterated her claim that the land was advertised to her by the Appellant. As a result, she gave her houseboy/brother, Suleiman the sum of N300, 000.00 to pay for the land. Accompanied by the Appellant, Suleiman paid for the two plots of land on her behalf and the Appellant acted as one of the many witnesses to the transaction. These facts are borne out by both the evidence of the Respondent in her statement on oath and also under cross-examination, as well as by the Exhibit PW1A, the purchase of land receipt.

Since the law is settled that a document speaks for itself, the “Purchase of House/Farm Land” document is pertinent to the resolution of the dispute. It is written on the headed paper of the “Maiduguri Metropolitan Local Government” dated 13-10-2009. For ease of reference, it states as follows:
“Copy to
Haiya Habiba Lawan Nguru
Purchase of House/Farm Land
I Mustapha Gana of Umarari Ward have sold land at Musari Dubai Ward to Haj Habiba Lawan of … Ward. She paid the agreed amount of N300, 000= Only in the presence of the following witnesses.

(50×200) fts. 2 Plots
Witness Address Signature
1. Ijai James Audu Shiwari signed
2. Baba Dodo Musari Dubai       signed
3. Isa Gandrubber Musari Dubai       signed
4. Bulama Hassan Zajeri Ward signed
Signed   Signed
New Owner’s signature               Old Owner’s signature
Ward Head’s Signature Ward Scribes Signature
Signed and Stamped Signed

District Head’s Signature Office Stamp and Date
I bought a house/Plot for residential purposes only. If I decide other than this I should apply to a higher authority for approval, please.
Buyer’s name: Hajiya Habiba Address: Pompomari.” (Emphasis supplied)

A literal construction of this agreement discloses that the Respondent bought the land from one Mustapha Gana and the Appellant is described therein as a witness to the transaction. It is instructive that he is not the only witness, but that there are four other witnesses. Therefore, it is evident that the Appellant did not sell the plots of land in question to the Respondent.

Secondly, by the Respondent’s claim and evidence, she states that she gave her houseboy/brother, Suleiman (since deceased), the sum of N300, 000.00 to pay for the land. Suleiman represented her at the sale transaction but was accompanied by the Appellant.

Thirdly, from the claim and the evidence of the Respondent as PW1, she holds the

Appellant responsible for her inability to identify the land she bought from Mustapha Gana because he “advertised” the land to her. Now even though the Appellant vociferously denies this, such and “advertisement” without more, does not amount to fraud, an allegation which she has thrown at him simply because he was unable to identify the land for which he acted as one of the witnesses of the sale transaction.

Fourthly, whereas the Respondent bought the land on 13-10-09, she only took steps to identify the land she paid good money for in the year 2012. It was in the course of this that she encountered difficulties in identification. This is more so that the purchase agreement, Exhibit PW1A, did not contain a proper description of the land.

What is surprising is that when the Appellant was unable to identify the plots of land with certainty, same having been abandoned for not less than three years after purchase, the Respondent did not seek out Mustapha Gana, the person who sold the land to her who is the actual person who could have rightly identified the land he sold to her. In addition, the purchase agreement was

authenticated and signed by no less personalities than the District Head, Ward Head and Ward Scribe. Yet, there is no evidence that the Respondent took any steps to reach these persons in order to gain access to the land she had bought in 2009, the sale of which they had been a part of and had approved by affixing their signatures and official stamp of office. Instead, she simply found it more convenient to slap on an allegation of fraud on the Respondent who merely acted as one out of five witnesses who witnessed the sale transaction.

Clearly, even from the claim of the Respondent, no cause of action is disclosed against the Appellant. It is settled law that a cause of action is the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the Plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable

right or claim. See Egbe V Adefarasin (1987) LPELR-1032(SC) 32, D-E, per Oputa, JSC; Cookey V Fombo (2005) LPELR-895(SC) 19-20, F-A, per Edozie, JSC; Atiba Iyalamu Savings & Loans Ltd V Suberu (2018) LPELR-44069(SC) 43-45, F-B, per Kekere-Ekun, JSC.
Based on the Respondent’s Statement of claim, I am of the considered view that no cause of action at all was disclosed against the Appellant to warrant the entertainment of the suit against the Appellant in the first place. The Respondent, from her witness statement on oath, is a public servant whom, it is assumed, can read and write. She at least was able to enter into an agreement for the purchase of land (Exhibit PW1A) with the previous landowner and also signed the agreement as indicated thereon. Since that is so, she should have known who to direct her angst against when she was unable to identify her two plots of land with the passage of time and the death of Suleiman, who was by her own admission, her surrogate in the transaction. Instead, she decided to go after shadows.

There is no gainsaying that at best, the Appellant was a witness to the transaction. Even if he was the person who,

as a builder, advertised the land to her, which assertion he denies, that alone without more, cannot make him liable for her inability to find the location of the land she purchased from a named seller/landowner in the presence of not less than five witnesses; and in a transaction authenticated by the custodians of the land in the area, to wit: the Ward Head and the District Head, with the Ward Scribe who usually records all activities of the Ward involving the Ward Head.

I believe the Respondent needs to go back to the drawing board in her search for her elusive land. If she still encounters difficulty, then she should look to others, and not to the Appellant, a mere witness to the purchase of land agreement, as she has no cause of action against him. She admits she didn’t give him any money, she didn’t pay for the land through him and she did not make him a caretaker over the land. It is therefore difficult to see why she focused on him as the “fall guy”, so to speak, when she was unable to identify her land upon the death of Suleiman whom she gave the sum of N300, 000.00 and through whom she bought the land.

In addition to the

absence of a cause of action, the Respondent failed to prove the allegations of fraud she made against the Appellant in paragraph 22 of the Amended Statement of claim. Fraud is defined as a willful act on the part of anyone whereby another is sought to be deprived by illegal or inequitable means of what he is entitled to. It means a deliberate deception intended to gain an advantage. For the purpose of civil law, fraud includes acts, omissions, and concealment by which an undue and unconscientious advantage was taken of another – Union Bank of Nigeria V Ironbar Esq. (2010) LPELR-5057(CA) 28, B-C, per Ngwuta, JCA (as he then was); Umanah V Obong Attah (2006) LPELR-3356(SC) 40, C-E, per Onnoghen, JSC; Adimora V Ajufo (1988) LPELR-182(SC) 16, E-G, per Oputa, JSC; Onuchukwu V Nnoli (2013) 21223(CA) 19, C-A.

In the instant case, can it be said that the Appellant deceitfully misled the Respondent into signing the purchase of land agreement, Exhibit PW1A? Clearly, there is no evidence of this. The Respondent in her evidence stated that she sent Suleiman with the sum of money and trusted him, not the Appellant, to conduct the purchase of the land on her

behalf. Even though the Respondent has alleged that because the Appellant advertised the land to her, she was misled by him, the Appellant has denied this and no evidence has been offered in proof of this. In addition, the Respondent having admitted to being a public servant, she knew the purport of Exhibit PW1A before she signed it, and so she cannot be heard to say that she was misled when she signed same.

Furthermore, there is nothing in the evidence of the Respondent/PW1 or in that of her three (3) other witnesses that constitute proof of fraud. PW2, PW3, and PW4, her sons, were not witnesses to the transaction, and only came in when the search for the land commenced. Their evidence is therefore worthless.

The foundation upon which civil matters are predicated upon is that he who asserts must prove. That burden of proof, unlike in criminal proceedings is not static. The clear wordings of Section 132 of the Evidence Act, 2011 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, by Section 133 of the Act (supra), the burden of first proving the

existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Further still, by Section 136 of the Act (supra), the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence.
It follows therefore that in the context of the present case, the Respondent, as Plaintiff before the lower Court, owes it a duty to the trial Court to establish the allegation of fraud against the Appellant so as to sustain her claim. This, she woefully failed to do. I, therefore, resolve the sole issue for determination in favour of the Appellant and against the Respondent.

Finally, even though the Appellant, in his Notice of Appeal, had sought for an Order of retrial, it is wholly inappropriate in this case where the Plaintiff wholly failed to prove her case. The proper Order, therefore, is one of dismissal of the Plaintiff’s case.

In consequence of all the above, I find merit in the Appeal. It succeeds and is allowed.
Accordingly, I set aside the

Judgement of the High Court of Justice Borno State in Suit number BOHC/MG/CV/65/2018 between Hajiya Habiba Lawan Nguru V James Audu delivered on June 27, 2019, by A.Z. Mussa, J.
The Appellant is entitled to costs which I assess at assessed at N100, 000.00 to the Appellant against the Respondent.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother SANKEY JCA. I agree with her reasoning and final conclusion.

There is merit in this appeal. It is allowed. The judgment of the High Court of Borno State in suit no BOHC/MG/CV/65/2018 is hereby set aside. I abide with all the other consequential orders in the lead judgment including that as to cost.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.

His reasoning and conclusion reached on the sole issue for determination cannot be faulted. I am therefore in agreement with his Lordship that the learned trial Judge abdicated his sacred duty of evaluation of the evidence

before him in arriving at the decision that the Respondent’s claim was proved. No doubt such a decision is perverse, and deserves nothing less than being set aside. Therefore, I too find merit in this appeal and allow it. In consequence, the Judgment of the lower court delivered on 27th June 2019 is hereby set aside.

I abide by his Lordship’s order as to costs.

Appearances:

Yusuf Abubakar Esq., holding the brief of I. H. Ngada Esq. For Appellant(s)

Saleh Esq. For Respondent(s)