DANBO INT’L SCH & ANOR v. JOSHUA & ANOR (2022)

DANBO INT’L SCH & ANOR v. JOSHUA & ANOR

(2022)LCN/16360(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, July 25, 2022

CA/K/09/2018

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. DANBO INTERNATIONAL SCHOOL 2. MRS CHRISTIANA BELLO YUSUF APPELANT(S)

And

1. OGHENEVWE OGHENEOCHUKO JOSHUA 2. JOSHUA OGHENEKEVWE RESPONDENT(S)

RATIO:

RAISING AN ISSUE SUOMOTU BY THE COURT AND IN RESORT OF HIS CHAMBERS

ASCRIBING PROBATIVE VALUE TO A DOCUMENT ADMITTED IN EVIDENCE

The fact a document was admitted in evidence without objection does not entitle the Court to ascribe probative value to it if the document does not fulfil the requirement of the law. Admissibility and ascription of probative value to evidence are two different matters. Admissibility is based on relevance while probative valve depends not only on relevance but also on credibility and the reasonable inferences that can be drawn in the circumstances to its accuracy. See NYESOM V. PETERSIDE & ORS (2016) 7 NWLR (Pt. 1512) 452. The ascription of probative value to evidence is dependant on its credibility and fulfillment of conditions to the ascertainment of its authenticity and the reasonable inference that can be drawn for its accuracy. AMINA AUDI WAMBAI, J.C.A

AN UNSIGNED DOCUMENT HAS NO EFFICACY IN LAW

It is settled law that for a document to be efficacious and be accorded probative value, the document must be signed. An unsigned document has no efficacy in law, itis a worthless document and cannot be efficacious, so said the Supreme Court in the case of OMEGA BANK (NIG) PLC V. O.B.C LTD (2005) 8 NWLR (Pt. 928) 547. AMINA AUDI WAMBAI, J.C.A

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kaduna State High Court in Suit No: KDH/KAD/161/2014 delivered by Hon. Justice Hannatu A. L. Balogun on 12th May, 2017 which entered judgment for the Respondent in the sum of N1,000,000.00 (One Million Naira) plus 10% post-judgment interest against the Appellants for negligence.

As plaintiffs, the Respondents claimed against the Appellants jointly and severely at paragraph 33 of their Amended Statement of Claim: –
i. The sum of N5,000.00 paid on 4th May, 2012 to the Defendants for “A” Levels Admission form.
ii. The sum of N660,000 paid to the Defendants on 1st June, 2012 for “A” Levels Programme Tuition and Boarding Fees for Two (2) semesters (June – August, 2012 & September – November, 2012).
iii. The sum of N200,000 (Two Hundred Thousand Naira) paid to the Defendants being part of “A” Levels Programme Tuition and Boarding Fees for One (1) semester (January – June, 2013)
iv. The sum of N30,000 (Thirty Thousand Naira) paid by the Plaintiffs to Consolidated Legal Practitioners inrespect of the Demand Letter written on their behalf to the Defendants with Reference No.: CLP/C/30/13 and dated 6th November, 2013.
v. The sum of N20,000 (Twenty Thousand Naira) paid by the Plaintiffs written on their behalf to the Law Firm of Malame Legal Consult with respect to the Demand Letter to the Defendants dated 21st January, 2014.
vi. The sum of N450,000 (Four Hundred and Fifty Thousand Naira) charged by the Law Firm of Malame Legal Consult as Professional Fee for the prosecution of this Suit.
vii. The sum of Five Million Naira (N5,000,000.00) as damages for shock, pain, embarrassment, trauma, agony and discomfort suffered by the plaintiffs as a result of the breach of contract entered into between plaintiffs and the Defendants.
viii. Interest at the rate of 20% on the above stated amounts till the liquidation of the judgment sum by the Defendants.

The Appellants filed a 27 paragraph statement of defence along with other processes to deny the Respondents’ claim. By consensus of parties, the matter was transferred to the General cause list. In proof of their case, the Respondents, after the amendment of their case, called two witnesses and tendered six (6) exhibits. The Appellants also called two witnesses and tendered two exhibits. At the end of trial, the learned trial Judge reviewed the evidence, considered the written addresses of both Counsel and found that reliefs (i), (ii), (iii) which are special damages in nature were unproved and the filing fees in respect of reliefs (iv), (v) and (vi) (in respect of lawyer’s charges) was unpaid for and therefore ungrantable and accordingly dismissed reliefs (i) – (vi).

However, in respect of reliefs (vii) and (viii) the learned trial judge held:
“On the whole, I find that the 1st defendant was negligent in not ensuring that the 1st plaintiff was registered for and sat for the Cambridge examination the very reason he enrolled in the school. The plaintiff is thus entitled to damages”.

Utterly displeased with the judgment, the Appellants filed a Notice of Appeal on 16/6/2017 predicated on six grounds of appeal.

From the 6 grounds of appeal. T. A. Olorisade Esq who settled the Appellants’ brief of argument filed on the 9th January 2018 nominated 3 issues for determination namely:

(i) Whether the learned trial Judge was right when she raised, suomotu, in her judgment, the point or issue that exhibit D1 was neither dated, signed, or stamped thereby denying the Appellants, their rights to fair hearing and the opportunity of being heard. (Distilled from ground one of the Notice of Appeal).
(ii) Whether the 1st Respondent was entitled to be registered for Cambridge (“A” Level) examination by the 1st Appellant, the refusal or neglect of which made the Respondents suffer embarrassment, trauma and emotional torture and thus became entitled to the sum of N1 million as damages. (Distilled from grounds 4 and 5 of the Notice of Appeal).
(iii) Whether the 2nd Respondent can make a “Joint Statement on Oath” on behalf of the 1st Respondent and as such the 1st Respondent could be entitled to damages to the tune of N1 million even though the 1st Respondent failed to give or lead any evidence whatsoever at the trial Court (Distilled from ground 3 of the Notice of Appeal).

The Respondents did not file any brief of argument nor did their Counsel, H. U. Obimba Esq, appear in Court on the date of hearing though served by phone call.

Looking at the issues distilled by the Learned Counsel for the Appellants and considering the argument canvassed in support of same as well as the pleadings of the parties and evidence on record it is my view that a sole issue culled from the 3 issues is sufficient to determine this appeal. The issue is
“Whether having regards to the evidence, on record the learned trial Judge was right in holding the Appellants negligent in not ensuring that the 1st Respondent was registered for the Cambridge examination”

APPELLANT’S SUBMISSION
Arguing his issue 2 and contending that the first Respondent was not entitled to be registered/enrolled by the Appellants to sit for the Cambridge ‘A’ Level examination, learned Counsel referred to paragraph 10 of the amended Statement of claim and paragraph 7 of the joint statement on oath of the Respondents to submit that the implication of the averment and the evidence is that the Respondents were not only aware that the “additional” sum of N550,000 paid by them (Respondents) to the Appellants out of which the sum of N105,000 was meant forregistration/enrolment of the 1st Respondent to the body saddled with the said examination, but also of the need to make the said payment. That said sum of N550,000 paid by the Respondents having been refunded to them by Mr. Isaac Oladejo, the 1st Respondent did not pay the registration/enrolment fees and is not qualified to sit for the examination and thus the Appellants cannot be said to be negligent for not registering the 1st Respondent for the said Cambridge Examination. He referred to paragraphs 6 (1), 7 and 8 of the statement of defence and the evidence of DW1 at paragraph 8, 9 and 10 of his deposition and contended that the evidence is neither controverted not challenged as the Respondents failed to file a Reply to the statement of defence. Further reference was made to the evidence of DW1 in cross-examination whereat the DW1 insisted that the 1st Respondent did not pay the complete fees.

He submitted further that the Appellants alluded at paragraphs 4, 5 and 6 of their joint statement of defence to the same facts that all prospective students were given a copy of Pay Advice which contains the sum of N105,000 as Registration/enrolment fees for the examination, a fact which according to him, was not controverted or challenged, that the Respondents paid only N665,000 instead of N990,000, thus the 1st Respondent was not qualified to sit the said examination and the Respondents cannot be heard to say that the 1st Respondent was prevented from sitting the examination.

Arguing his issue I, the learned Counsel submitted that Exhibit D1 tendered and admitted unchallenged to show that the sum of N105,000:00 as the registration/enrolment fees for the Cambridge examination was erroneously discountenanced by the lower Court having suomotu raised the issue of the Exhibit D1 being undated and unsigned and without affording the parties the opportunity of addressing on it, before resolving same against the Appellant thereby denying the Appellants their right to fair hearing and occasioning a miscarriage of justice contrary to the settled law restraining a Court from doing so. He cited several authorities including HAMBE V. HUEZE (2001) 4 NWLR (Pt. 703) 372 AT 384 paragraph 4. ADELEKE V. RAJI & 1 OR (2002) 13 NWLR (Pt. 783) 142 AT 154 A–D. UDO U. EKONG & 1 OR V. AKPAN T. ETOK UDO (2002)16 NWLR (Pt. 792) 1 AT 27–28 H–B to support his position that on no account should a Court decide on an issue it raised suomotu without giving the parties the opportunity to be heard on same and the case of ANIAKON V. NIG. POLICE FORCE (2014) 15 NWLR (Pt. 1429) 155 at 177 c in urging us not to allow the decision based on such an issue raised suomotu without hearing the parties to stand.

On his issue 3, it was submitted that though the Respondents filed joint plaintiffs’ statement on oath it was deposed to and signed only by the 2nd Respondent. That only the 2nd Respondent gave evidence. The 1st Respondent though listed as a witness was not called throughout the trial as a witness and thus, he submitted, 1st Respondent abandoned his case and was not entitled to any claim and the lower Court ought to have dismissed his claim rather than awarding N1m damages jointly to both the 1st and 2nd Respondents since the trauma emotional torture are all claims in person and urging us to set aside the said award of N1m granted to the 1st Respondent.

RESOLUTION OF APPEAL
The issue in contention is not whether the 1st Respondent who was a student at the 6th Form Tutorial College of the 1st Appellant for the purpose of writing the 2012/2013 Cambridge “A” Level Examination was not registered by the Appellants for the said examination. Appellants admit that they did not register/enroll the 1st Respondent for the said examination. Their contention which is the nucleus of this appeal is that the 1st Respondent having not paid the registration fee was not qualified to sit for the examination and therefore not entitled to be so registered. This turns on the question of the payment or non-payment of the required registration fee by the 1st Respondent to the Appellants for the purpose of registering/enrolling 1st Respondent for the said 2012/2013 Cambridge A Level Examination. While it is the case of the purpose of registration/Respondents that they paid in full the initial fees demanded of them by the Appellants in the sum of N865,000:00 the breakdown of which is as follows:
(i) The sum of N5,000 for “A” Level Admission Form
(ii) The sum of N660,000.00 for “A” Level Programme Tuition and Boarding Fees for two (2) Semesters (June–August 2012 &Sept–Nov. 2012)
(iii) The sum of N200,000 “A” Level Programme Tuition and Boarding Fees for one (1) Semester (January – June 2013).
and also paid an additional sum of N550,000, the Appellants on the other hand posit that the Respondents did not pay the registration/enrolment fee for the Cambridge “A” Level 2012/2013 examination. Exhibit DI was tendered without objection to show that every prospective student was given a copy of the pay Advise (Exhibit DI) indicating the fees that each student needs to pay including the sum of N105,000.00 as registration fees for the “A” Level Cambridge Examination which 1st Respondent ought to pay but did not pay. The learned trial Judge attached no weight to the document (Exhibit DI) on ground that being an unsigned, undated and unstamped document it lacks evidential value, an action which the learned Counsel for the Appellants has picked a very deep hole with and finds legally wrong.

It is truly the law that a Court of law should not raise an issue suomotu and in the resort of his chambers resolve same without hearing from the parties particularly the party against whom the issue will be resolved. It is not open to the Court to raise a point suomotu no matter how clear the matter may seem to be and proceed to resolve it one way or the other without giving the parties a hearing. This is a principle of law that this Court has severally reiterated re-emphasized and severally pronounced upon. This principle is well entrenched in our judicial jurisprudence. Thus, it is wrong for a Judge to give a decision on a point or issue raised suomotu and upon which an opportunity has not been afforded parties or their Counsel to argue at the hearing or address upon particularly a point which was not raised throughout the hearing. To do so will amount to a breach of the parties or one of the party’s right to fair hearing.
See STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) 11 NWLR (Pt. 935) 181 ALL I V. ALESINLOYE (2000) 6 NWLR (Pt. 660) 177. See also, the cases cited by the Appellants’ Counsel Supra.
However, there are instances when a Judge cannot be accused of introducing or raising an issue suomotu. Where the issue pertains to the application of law to the evidence adduced before the Court or of equity to resolve an issue, the Judge cannot be accused of raising the issue suomotu or be expected to invite Counsel or parties to address it on how to apply the law. Similarly, where by the inherent nature of its functions, the Court draws inferences from facts before it, it cannot be accused of introducing or raising an issue suomotu or be required to invite Counsel to address it before drawing legal inferences from available facts to arrive at a conclusion. See IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008) 6 NWLR (Pt. 1084) 642. OBIAGWU & ORS V. OKOROAFOR (2019) LPELR 46689(CA).
Additionally, where the issue or matter exists in the litigation, the Court cannot be accused of raising same suomotu. In OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (Pt. 1297) 407 OKORO JCA as he then was now (JSC) held
“A Court can only be accused of raising an issue suomotu, if the issue or matter of fact did not exist in litigation. A Court cannot be accused of raising an issue suomotu if the issue or matter of facts exist in the litigation. … it will be wrong to say that inferences legitimately drawn from facts are introduced suomotu…”

In the instance case, the learned trial Judge only applied the settled principle of law to the received evidence before the Court in arriving at the conclusion that Exhibit DI though admitted without objection, deserves no probative value. The fact a document was admitted in evidence without objection does not entitle the Court to ascribe probative value to it if the document does not fulfil the requirement of the law. Admissibility and ascription of probative value to evidence are two different matters. Admissibility is based on relevance while probative valve depends not only on relevance but also on credibility and the reasonable inferences that can be drawn in the circumstances to its accuracy. See NYESOM V. PETERSIDE & ORS (2016) 7 NWLR (Pt. 1512) 452. The ascription of probative value to evidence is dependant on its credibility and fulfillment of conditions to the ascertainment of its authenticity and the reasonable inference that can be drawn for its accuracy.

It is settled law that for a document to be efficacious and be accorded probative value, the document must be signed. An unsigned document has no efficacy in law, it is a worthless document and cannot be efficacious, so said the Supreme Court in the case of OMEGA BANK (NIG) PLC V. O.B.C LTD (2005) 8 NWLR (Pt. 928) 547.

Mindful of this position of the law, the lower Court in evaluating the case, ascribed no probative value to Exhibits D1. The lower Court was right in doing so.

In any case, though it is the case of the Respondents that they paid in full all the fees initially demanded of them by the Appellants which was the sum of N865,000:00 they also pleaded at paragraph 10 of their amended statement of claim that they paid an additional sum of N550,000.00 further demanded by the Appellants out of which the sum N105,000.00 was for the registration/enrolment of the 1st Respondent for the said Cambridge “A” Level Examination. All the payments were made through Mr. Isaac Oladejo the Head of Studies of the Sixth (6th) Form in charge of the programme who was introduced to the 2nd Respondent by the Secretary of the 1st Appellant. The Appellants acknowledge the payment of the sum of N865,000 by the Respondents to the said Mr. Isaac Oledejo but not the additional sum of N550,000.00

At paragraph 10 of the amended statement of claim and paragraph 14 of the plaintiffs joint statement on oath the Respondent pleaded and deposed inter alia that the said sum of N550,000.00 was refunded to them (Respondents) by Mr. Isaac Oladejo who was no longer comfortable with the attitude of his employers in the affairs of the Plaintiffs/Respondent and felt that the Plaintiffs/Respondent would lose more money if the said sum was remitted to the Appellants. Mr. Isaac Oladeja as rightly held by the learned trial Judge was the representative of the 1st Appellant. As the Head of studies of the 6th Form in charge of running the programme, Mr. Oladejo acted on behalf of the 1st Appellant in his official dealings with the Respondents. His actions became the action of the 1st Appellant. Therefore when he refunded the said sum of N550,000.00 to the Respondents as additional money which ought not to have been paid by the Respondents and assuming without so deciding that the money ought not to have been refunded to the Respondent, the Respondents cannot be punished for failure to pay the money to the 1st Appellant which had been paid but refunded to them.

Furthermore, as rightly found by the Court below, there is nothing on record to show that prior to the Cambridge examination the 1st Appellant notified the Respondents of more fees to be paid or even as a reminder of an outstanding fees to be paid to enable the 1st Respondent be registered for the examination for which he was being tutored and prepared to sit. It ordinarily behoves the 1st Appellant an institution to which the 1st Respondent had reenrolled and paid so much money for the purpose of registering and sitting for the Cambridge “A” Level Examination, to have notified or at least reminded him in writing of the need to pay an outstanding registration fee, if any, before the examination date the purpose for which he registered for the programme. For no fault of the Respondents, the 1st Respondent was not registered for the Cambridge “A” Level examination the purpose for which he was registered with the 1st Appellant. The learned trial Judge was therefore right when he found and held that
“the 1st defendant/Appellant was negligent in not ensuring that the 1st plaintiff/Respondent was registered for and sat the Cambridge examination, the very reason he enrolled in the school. The plaintiff is thus entitled to damages”

On the submission that the plaintiffs’ joint statement on oath being signed only by the 2nd Respondent and not by the 1st Respondent only the 2nd Respondent testified and the 1st Respondent having not testified is deemed to have abandoned his claim and not entitled to the damages of N1M awarded to both of them, while it is the law that a written statement on oath of a deponent is personal to him and can only be adopted and used by him alone and not on behalf of himself and another person. See NKUE V. WAKAMA & ANR (2018) LPELR–44292 (CA) per Sanga JCA, it cannot be said on the facts that the 2nd Respondent who paid all the fees on behalf of his son, the 1st Respondent, cannot testify on the emotional torture or embarrassment for his son’s inability to sit for the examination which he paid for.

On the whole therefore, the learned trial Judge cannot be faulted for adjudging the Appellants negligent in not ensuring that the 1st Respondent was registered/enrolled for the 2012/2013 Cambridge “A” Level Examination and in awarding the sum of N1Mgeneral damages against the Appellants. In the circumstance, I resolve the issue against the Appellants and in favour of the Respondent. Consequently, I find no merit in this appeal and same is hereby dismissed. The judgment of the lower Court delivered on 12th May, 2017 is hereby affirmed. Parties shall bear their costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother AMINA AUDI WAMBAI, JCA. I entirely agree with the reasoning and conclusion that this appeal is worthless in the extreme. The judgment of the learned trial Judge is unassailable. The Appellants were in no doubt negligent in not ensuring that the 1st Respondent was registered/enrolled for the 2012/2013 Cambridge “A” level examination. The award of the sum of N1,000,000.00 general damages against the Appellants for the emotional torture and embarrassment suffered by the 1st Respondent, is justified in law and in fact. I also dismiss the appeal.
I abide by the consequential order(s) in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

T. A. Olorisade, Esq. For Appellant(s)

H. U. Obimba, Esq. For Respondent(s)