CHIEF RUFUS GBEMISAYO OLUWATIMITEHIN v. MRS. ADEBAYO KEHINDE & ANOR
(2019)LCN/13318(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/AK/196/2015
RATIO
JUDGEMENT: JUDGMENT COMPLAINED OF ABOUT BEING AGAINST THE WEIGHT OF EVIDENCE
A complain of a decision on the ground that a judgment is against the weight of evidence, connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the party which the Court either accepted wrongly or the inference drew or the conclusion reached is unjustifiable in law. In ascertaining the weight of evidence, the trial Court is enjoined to consider whether the evidence is admissible, relevant, credible or more probable than that given by the other party. See AKINLAGUN V. OSHOBOJA (2006) 12 NWLR (PT. 993) 60; GOV. LAGOS STATE V. ADYIGA (2012) 5 NWLR (PT. 1293) 291 and AGALA V. OKUSIN (2010) 10 NWLR (PT. 1202) 412.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
COURTS: DUTY OF THE TRIAL COURTS
A trial Court is settled with the duty to evaluate relevant and material evidence, oral and documentary after hearing and watching the demeanour of the witnesses. A Court appraises evidence by putting the evidence of the parties on the imaginary scale and weights them to determine which is heavier in terms of quality of the evidence or testimonies. See AYUYA V. YONRIN (2011) 10 NWLR (PT. 1254) 135 and NDULUE V. OJIAKOR (2013) 8 NWLR (PT. 1356) 311.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
WHERE CONTRADICTIONS WILL VITIATE PROCEEDINGS
For contradictions to vitiate proceedings, they must be material and substantial as minor discrepancy which occurs when a piece of evidence stops short of or contains minor discrepancies in detail, is incapable of vitiating a case. See EKE V. STATE (2011) 3 NWLR (PT. 1235); AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 and IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38.It is not enough for the appellant to show the existence of contradiction without showing that the trial judge did not avert to and consider the effect of the contradiction. The contradiction must be shown to amount to substantial disparagement of the witnesses likely to result in a miscarriage of justice to rely on the such contradicting evidence. See AHMED V. STATE (2001) NSCQLR VOL 8 275 and GALADIMA V. STATE (2017) LPELR 43469 (SC).PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
WHO HAS THE RIGHT TO APPROACH THE COURT FOR A REDRESS
It is trite that a person whose rights is being, has been or is likely to be infringed has the right to approach the Court for redress. A party whom a Court has established that has been wronged as in the instant case, is entitle to damages which the Court will assess as flowing from the wrong he has suffered. See N.B.C PLC V. UBANI (2014) 4 NWLR (PT. 1379) 241.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
DAMAGES: POWER OF THE TRIAL COURT TO AWARD DAMAGES
The award of damages is purely within the powers of the trial Court. A Court has power to award damages for wrongs done and equally too, an appellate Court can vary the award or amend same where shown to be perverse. See AHMED & ORS. V. CBN (2012) 7 SC (PT. II) 1 and CHUKWUANU V. UCHENDU & ORS (2016) LPELR 41022.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
CHIEF RUFUS GBEMISAYO OLUWATIMITEHIN Appellant(s)
AND
1. MRS. ADEBAYO KEHINDE
2. MR. SOLOMON AGUNLADE FAMUAGUN Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice C. E. T. Ajama of the High Court of Justice, Ondo State of Nigeria Holden at Akure delivered on the 27th day of June, 2013.
By an application dated the 11th day of November, 2011, the respondents as applicants instituted this action in the Court below and prayed the Court for the following orders:
a. A declaration that the arrest, humiliation and detention of the 1st applicant on the 2nd of November, 2011 and the planned arrest of the 2nd applicant by the 3rd, 4th and 5th Respondents acting for the 6th Respondent on the false allegation made by the 1st respondent are illegal, unlawful and an infraction of their constitutional rights to dignity and liberty of persons.
b. An order of this Honourable Court restraining the 1st and 2nd Respondents, their agents, representatives, privies and anybody acting for them from further maltreating and/or making allegation which they know that are unfounded against the 1st and 2nd applicants to any law enforcement agents.
?c. An order of perpetual injunction
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restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents either by themselves or through their representatives, privies and agents from further molesting, harassing, intimidating, indicting, incriminating and arresting the applicant on unsubstantiated allegation.
d. An order of this Honourable Court directing the respondents jointly and severally to pay to the 1st applicant, the sum of N5,000,000:00 (Five Million Naira) only being general damages for the false allegation, unlawful arrest, detention, molestation, harassment of her person and discomfort caused her and her family by her detention on the 2nd and 3rd November, 2011.
The summary of the case of the respondents? applicants from their affidavit evidence is that the applicants/respondents are members of the same family with the appellant. The appellant is the Chief Elomo of Oba Ile and the head of their family. That the appellant using his influence as Chief Elomo of Oba Ile sold some part of their family land. The applicants and other members of the family complaints on how the appellant converted the family land. That they made effort to stop him from selling their portion of the
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land illegally. The applicants alleged that the appellant using his influence engaged some thugs and beat up the 1st respondent/applicant and got her dresses torn while trying to survey the part of the family land where they have their farm. That the appellant called the 3rd, 4th, 5th and 6th respondents to arrest and lock her up, intimidated and harassed her for no just cause and threatened that unless she signs an undertaking that she would not disturb the appellant and give him a free hand with the land she would not be allowed to go home. Though she was released on bail the following day.
On the part of the appellant as respondent, he denied engaging thugs to beat up the 1st applicant. That the applicants were allowed to farm on the family land and that they are trying to convert absolute ownership of the land. That as the family head, he sees the act of surveying the land by the applicants as a breach of peace and only called the police to avoid a breakdown of law and order.
In a considered judgment on 27th June, 2013, the lower Court granted the reliefs sought by the respondents and awarded the sum of N1,500,000:00 (One Million Five Hundred
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Thousand Naira).
Dissatisfied with the decision, the appellant initially lodged a 7 grounds Notice of Appeal dated 6th September, 2013 with the leave of this Court, he filed an Amended Notice of Appeal dated 18th March, 2016.
During the hearing of the Appeal, on the 25th February, 2019, learned counsel for the appellant, O. O. Fakunle SAN, adopted the appellant?s brief of argument filed on 29th October, 2018 and appellant?s reply brief to the respondents brief of argument filed 21st January, 2019 with the leave of Court to file out time as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, S. B. Oladeinde Esq., adopted the respondents? brief of argument filed on 14th November, 2018, as forming his reaction against the appeal. He urged the Court to dismiss it.
Learned counsel for the appellant nominated two (2) issues for determination. They are:
1. Whether the lower Court was right in its judgment granting the declaration sought in relief 1 of the respondents? claim before it, when the evidence before the Court and the findings of Court upon
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which the judgment was predicated are both at variance with the claim of the respondents.
Or
Whether the lower Court was right in its judgment and the grant of the declaratory reliefs sought to the respondents when the evidence before Court and the findings of Court upon which judgment is predicated are both at variance with the claim/case of the respondents.
2. Was the lower Court right in its award of damages to either of the respondents or both when:-
i. There exist no evidence on record to support the claim to a purported planned arrest of 2nd respondent and
ii. The finding of Court that the report to the police of a likely breach of the peace following a melee which took place in a public place amounted to oppression of 1st respondent by the appellant.
The respondents in their briefs of argument distilled three (3) issues for determination viz:
1. Whether the variance in the date of arrest and detention can defeat the course of justice in a matter despite parties admission and confirmation of such arrest and detention.
2. Whether upon the evaluation of the facts and evidence before the trial Court on the arrest and
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detention of the 1st respondent and the planned arrest of the 2nd Respondent, the respondents can be said to deserve the judgment sum awarded in their favour.
3. Whether this Honourable Court can interfere with discretionary power of the trial Court base on its evaluation of the facts and evidence.
A careful look at the two sets of issues shows that they are identical in substance. The respondents issues can be conveniently merged under the appellants issues. I will decide the appeal on the issues crafted by the appellant being the owner of the appeal.
ARGUMENT ON THE ISSUES
ISSUE ONE.
Learned counsel for the appellant submitted that it is the duty of a trial Court to properly evaluate and act on the evidence before it and ascribe necessary probative value to it. He refers to ORAETOKA V. AJIA (2006) ALL FWLR (PT. 321) 1312 and AWOYOOLU V. ARO (2006) ALL FWLR (PT. 308) 1319 for the view.
Learned counsel submitted that where the finding of Court is not supported by the evidence before the Court, such finding must not be allowed to stand. He cited NEPA V. AROBIEKE (2006) ALL FWLR (PT. 316) 284. He contended that the learned trial
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judge was wrong in regarding the issue of assault and conduct likely to cause a breach of peace as it was not supported by the affidavit evidence of 1st respondent.
Learned counsel argued that the respondents application before the lower Court was for declaration and injunction predicated on an alleged violation of their rights on the 2nd November, 2011. That parties are bound by their case/claim before Court. He cited FAGBENRO V. AROBADI (2006) ALL FWLR (PT. 310) 1575.
Counsel argued that the claim is not supported by the evidence on record. This is because said counsel, firstly, the melee which led the appellant to invite the police and the subsequent invitation/arrest of the persons involves occurred on 1st November, 2018 as stated in the respondents applications. Secondly, that the lower Court also made findings that the 1st respondent was invited/arrest on 1st November, 2011. Therefore, according to counsel, the respondents claim is at variance and/or contradicts the evidence on record. He contended that the grant of the reliefs sought by the applicants is not supported by the evidence and finding of the trial Court. He cited B. O. N. V. OJEBA
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(1993) 4 NWLR (PT. 289) 597. He urged the Court to resolve this issue in his favour.
On the other hand, learned counsel for the respondent submitted that the parties are in unison as to the arrest and detention. The facts and evidence before the Court confirm that the arrest, detention of the 1st respondent and the planned arrest of the 2nd respondent happened between the 1st and 2nd November, 2011 which facts were never denied nor contradicted.
Learned counsel submitted that the appellant cannot hide under the difference in the date of arrest and detention of the respondent having admitted same before the trial Court. He cited GALADIMA V. STATE (2017) 12 NWLR (PT. 1580) 359 for the view. That the appellant maliciously instigated the police to arrest the 1st respondent illegally. That the appellant denied the respondents as his family members. In order to facilitate their arrest he refers to the appellant statement to the police and urged the Court to resolve this issue in favour of the respondents.
?
Learned counsel for the appellant in his reply brief re-iterated that the evidence adduced by respondents in respect of the issue of the date when
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the report of conduct likely to cause a breach of the peace was made to the police by the appellant happened on 2nd November, 2011 while the melee occurred on 1st November, 2011. Therefore, the evidence adduced did not prove the claim set up by the respondents.
RESOLUTION OF THE ISSUE
The appellant derided the lower Court of improper evaluation of evidence because the judgment is against the weight of evidence. A complain of a decision on the ground that a judgment is against the weight of evidence, connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the party which the Court either accepted wrongly or the inference drew or the conclusion reached is unjustifiable in law. In ascertaining the weight of evidence, the trial Court is enjoined to consider whether the evidence is admissible, relevant, credible or more probable than that given by the other party. See AKINLAGUN V. OSHOBOJA (2006) 12 NWLR (PT. 993) 60; GOV. LAGOS STATE V. ADYIGA (2012) 5 NWLR (PT. 1293) 291 and AGALA V. OKUSIN (2010) 10 NWLR (PT. 1202) 412.
A trial Court is settled with the duty to evaluate relevant and material
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evidence, oral and documentary after hearing and watching the demeanour of the witnesses. A Court appraises evidence by putting the evidence of the parties on the imaginary scale and weights them to determine which is heavier in terms of quality of the evidence or testimonies. See AYUYA V. YONRIN (2011) 10 NWLR (PT. 1254) 135 and NDULUE V. OJIAKOR (2013) 8 NWLR (PT. 1356) 311.
I have perused both the affidavit evidence and the oral testimonies before the Court and I have consulted the record, the spinal cord of the appeal. The appellant crux under this issue has two prongs in my view. Firstly, the appellant castigated the lower Court finding that it is against the weight of evidence. Secondly, that the respondents claim is at variance and/or contradicts the evidence on record. For the simply reasons that the respondents alleged that the violation of their rights by the appellants occurred on 2nd November, 2011 as can be seen on their application. While the evidence led and the finding of the Court shows that the melee happened on 1st November, 2011 which the appellants regard it as contradictory.
?
The respondents as applicants beseeched the lower
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Court for a declaration that the arrest, humiliation and detention are illegal unlawful and an infraction of their constitutional rights to dignity and liberty among others as can be seen in their application dated 11th November, 2011.
In the applicants? affidavit in support of the application, the respondents/applicants alleged that the appellant used some thugs to beat the 1st applicant while they were trying to survey the part of the family land where they have their farm and in the process the 1st applicant was wounded. That the appellant using his influence as Chief Elomo of Oba Ile engaged the service of the 3rd – 6th defendants to arrest the 1st respondent intimidated and harassed her for not just reason while the 2nd respondent was at large. That the 1st respondent fundamental right to dignity and liberty has been breached by the appellant and that there is a threat to the fundamental rights to freedom and liberty of the 2nd respondent. The first respondent/applicant a nursing mother and a member of Famuagun family engaged the service of a survey one Mr. Alani to survey the farm land where her father had planted cash crops which form part of
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Famuagun family land. The appellant also of the same family with the respondents who is also the Elomo of Oba Ile was alleged to have been selling the land illegally, which the respondents challenged. The appellant then ordered the thugs to beat the respondents and thereafter called the police to arrest them, and the 2nd respondent was lucky to escaped.
?
The appellant in his statement to the police Exhibit B stated that he was at his block industry at kilometer 5 Owo Express Road at around 10am he saw one black jeep full with people, they came down from the jeep with gun, matchet and cutlasses and pushed him into bush. That it was there he had chance to call his brother and the D.P.O Oba Ile to rescue him and they arrested two persons. That the people are not from his family but they only wanted to take his land by using thugery. That the only persons he knew are Tuyi and Kehinde the 1st applicant. In paragraph 4 of his counter affidavit stated that he is the holder of Elemo title in Oba Ile of which the 1st and 2nd respondents are members. By paragraph 13 thereof, he alleged that the respondents attempted to bye pass the laid down procedure in respect of
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the family land and their action could cause a breach of peace, hence he reported the matter to the police.
The learned trial judge at page 126 of the record hold thus: I find it difficult to believe his story that the 1st applicant or any other person came to his block industry with arms and thugs who pushed him into the bush but allowed him to make a call to the police and to his brother? I believe that the 1st respondent instructed certain persons who are now at large to batter and assault the 1st applicant in a way that infracted on her constitutional right to dignity?.
Further at page 131 of the record, he held thus:
the issue of assault and conflict likely to cause a breach of the peace which are not supported by the affidavit evidence of the 1st respondent are mere smokescreen used by the 1st respondent to justify the involvement of police officer he is familiar with to chip the wings of those opposed to his perceived authority over the family land.”
?
The law is trite that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in accordance with
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procedure permitted by law. The lower Court found that evidence of the respondents preponderated over those of the appellant based on their qualitative nature. I am in total agreement with the unbiased evaluation of the evidence conducted by the lower Court. The law does not give this Court the right to tinker with properly evaluated evidence and I so hold.
The appellant made heavy weather of what he perceived as contradiction on the date of the alleged melee. The evidence of a witness is contradictory when he gives inconsistent account of the same event. For contradictions to vitiate proceedings, they must be material and substantial as minor discrepancy which occurs when a piece of evidence stops short of or contains minor discrepancies in detail, is incapable of vitiating a case. See EKE V. STATE (2011) 3 NWLR (PT. 1235); AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 and IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38.
It is not enough for the appellant to show the existence of contradiction without showing that the trial judge did not avert to and consider the effect of the contradiction. The contradiction must be shown to amount to substantial
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disparagement of the witnesses likely to result in a miscarriage of justice to rely on the such contradicting evidence. See AHMED V. STATE (2001) NSCQLR VOL 8 275 and GALADIMA V. STATE (2017) LPELR 43469 (SC).
I have visited the record, the bedrock of the appeal and I have equally perused the evidence before the Court and the finding of the lower Court. Indeed, 1st November, 2011 and 2nd November, 2011 was mentioned as the date of the infringement of the respondents constitutional right. A minute differences on the dates of the incidents, to my mind, do not qualify as material contradictions. They are discrepancies that can change the fact of humiliation, arrest and detention of the first respondent. Moreso, the appellant did not deny the occurrence of the incidents leading to this appeal, but merely contended that he reported the incident to avoid breakdown of peace. In the result, I resolve issue one in favour of the respondents and against the appellant.
ISSUE TWO
Learned counsel for the appellant submitted that the award of damages of the sum of N1.500 One Million Five Hundred Thousand Naira by the trial Court was wrongful because
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damages only accrue from a wrongful and where there is no wrong there cannot be damages. That there was no wrong done by the appellant to the 1st respondent supported by evidence. He cited ADENIRAN V. ALAO (1992) 2 NWLR (PT. 223) 250 for the view.
Counsel submitted that fundamental human right can be initiated to prevent the possibility of a person right from being breached, where such possibility exist. That there exist no such plan or possibility to arrest/or infringe on the 2nd respondent fundamental human right. Therefore, said counsel, no wrong for which damages could be awarded in his favour.
He urged that the amount awarded is extremely high and same is in disregard of the principle for awarding damages. He cited UNION BANK OF NIGERIA LTD. V. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR (PT. 421) 558. He contended that an appellate Court will interfere with the award of damages if the amount awarded is excessively high. He refer to EBE V. NNAMANI (1997) 7 NWLR (PT. 513) 479 and I. I. T. V. AMRANI (1994) NWLR (PT. 332) 296. And urged the Court to resolve this issue in favour of the appellant.
?
Learned counsel for the respondent submitted that the
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award of damages as in the instant case is discretionary power of the trial Court which he exercised judiciously and has not been shown to be perverse by the appellant. He citedNIGERIA SOCIETY OF ENGINEERS V. OZAH (2015) 6 NWLR (PT. 1454) 101. For instances where an appellate Court will interfere with the exercise of discretion by a trial Court and contended that none of the instances have been established by the appellant to warrant the interference of this Court against the discretion of the trial court in the award of the damages. He urged the Court to so hold and resolve this issue in favour of the respondents.
RESOLUTION
It is trite that a person whose rights is being, has been or is likely to be infringed has the right to approach the Court for redress. A party whom a Court has established that has been wronged as in the instant case, is entitle to damages which the Court will assess as flowing from the wrong he has suffered. See N.B.C PLC V. UBANI (2014) 4 NWLR (PT. 1379) 241.
The award of damages is purely within the powers of the trial Court. A Court has power to award damages for wrongs done and equally too, an appellate Court can
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vary the award or amend same where shown to be perverse. See AHMED & ORS. V. CBN (2012) 7 SC (PT. II) 1 and CHUKWUANU V. UCHENDU & ORS (2016) LPELR 41022. In the instant case, the appellant failed to show that the finding of the trial Court was/is perverse. There is no miscarriage of justice or wrong application of the law by the lower Court. The learned trial judge in awarding the damages held at page 132 of the record. Viz in the instant case, the applicants especially the 1st applicant has been wronged and for this she asked for N5,000,000:00 (Five Million Naira) only as damages. I agree that she is entitled to some damages. In awarding damages, I have however taken into consideration the fact that the 1st respondent and the 1st applicant are members of the same Famuagun family. I have however considered the fact that the likes of High chief Gbemisola Rufus should live up to their high ranks in society and not use the instrumentality and organs of Government to oppress innocent citizens? I have assessed damages against the 1st, 3rd, 4th and 5th Respondents jointly and severally in the sum of N1,500, 000:00 (One Million Five
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Hundred Thousand Naira) only in favour of the applicants against the respondent.”
This findings of the lower Court is not perverse neither the amount awarded as damages is extremely high in my respective view. I therefore dishonour the appellant invitation to crown the findings of the lower Court as perverse. The attitude of appellate Courts to the exercise of discretion by lower Courts is that, unless the exercise of discretion by the lower Court is manifestly wrong, arbitrary, injudicious or where it does occasion miscarriage of justice which has not been established by the appellant in the instant case, otherwise the appellate Court will not interfere with such discretion.
Issue two is resolved in favour of the respondents and against the appellant.
Having resolved the two issues in this appeal against the appellant, the appeal lacks merit, the appeal shall be and it is hereby dismissed. The judgment of the lower Court delivered on 27th June, 2013, therefore stands. I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had perused the draft of the judgment just delivered by my learned brother, Ridwan
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Maiwada Abdullahi, JCA dismissing this Appeal. The trial judge based its decision on the Evidence led. I agree that the Appeal has no merit and it is dismissed.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA. He has adequately resolved the salient issues raised by the parties to this appeal. I agree with the reasoning and conclusion of my learned brother and have nothing more to add. I too find that this appeal lacks merit and I dismiss it. I affirm the judgment of the trial Court.
?In view of the fact that both parties are members of the same family and in order not to create any more rifts in the family I also refrain from making any order as to cost. Each party is to bear its own cost in this appeal.
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Appearances:
O.O. Fakunle, SAN with him, Fagoyinbo, O.E. Akintan and J. Caleb, Esq.For Appellant(s)
S.B. Oladeinde, Esq.For Respondent(s)
Appearances
O.O. Fakunle, SAN with him, Fagoyinbo, O.E. Akintan and J. Caleb, Esq.For Appellant
AND
S.B. Oladeinde, Esq.For Respondent
