EMMANUEL v. ALIYU (2020)

EMMANUEL v. ALIYU

(2020)LCN/14135(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/J/175/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

SAMUEL EMMANUEL APPELANT(S)

And

PATRICK ALIYU G RESPONDENT(S)

RATIO

DEFINITION OF THE WORD “TRAVERSE”

The word “traverse”, which comes from the French ‘traverser”, signifies, in a civil proceeding, to deny or controvert anything alleged in the declaration, plea, replication or other pleadings. There is no real distinction between traverses and denials, they are same in substance. However, a traverse, in the strict technical meaning, and more ordinary acceptation of the term, signifies a direct denial in formal words. A review of our case law history shows that there are instances where the Courts have treated an ordinary denial as being the same as a traverse, and there are other instances where the Courts have demanded the more strict technical meaning of the word. Hence, there are cases where the Supreme Court held that a general traverse by a defendant in a pleading that he denies the case put forward by a plaintiff seriatim is a proper traverse and has the effect of putting the plaintiff to the proof of all the allegations in the statement of claim – see for example the cases of Attah Vs Nnacho (1965) NMLR 28, Mandilas Karaberis Ltd Vs Apena (1969) NMLR 199, Benson Vs Otubor (1975) 3 SC 6, A. C. E. Jimona Ltd Vs Nigerian Electrical Contracting Co Ltd (1966) 1 All NLR 122, Osafile Vs Odi (1994) 2 NWLR (Pt 325) 125, Umesie Vs Onuaguluchi (1995) 12 SCNJ 120, Arisons Trading & Engineering Co. Ltd Vs Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26 and Dairo Vs The Registered Trustees of the Anglican Diocese of Lagos (2018) 1 NWLR (Pt 1599) 62.
There are other cases where the Supreme Court stated that a general traverse or an averment by a defendant that he is not in a position to admit or deny the particular allegation raised by a plaintiff and/or that he will at the trial put the plaintiff to the strictest proof of the allegations did not constitute a proper traverse and that if a defendant does not admit a particular material allegation in a statement of claim, he must state so specifically, directly, unequivocally and unambiguously – see for example the cases of Akintola Vs Solano (1986) 2 NWLR (Pt 24) 598, Attorney General of Anambra State Vs C. N. Onuselogu Enterprises Ltd (1987) NWLR (Pt 67) 547, Oseni Vs Dawodu (1994) 4 SCNJ 197, Meridien Trade Corporation Ltd Vs Metal Construction (WA) Ltd (1998) 3 SC 20, Ibeanu Vs Ogbeide (1998) 12 NWLR (Pt 576) 1, Nwokoro Vs Onuma (1999) 12 NWLR (Pt 631) 342, Asafa Foods Factory Ltd Vs Alraine Nig Ltd (2002) 12 NWLR (Pt 781) 353, Bamgbegbin Vs Oriare (2009) 13 NWLR (Pt 1158) 370, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, and Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 166.
What the above position of the law portends is that there is no universal rule as to what amounts to proper traverse and that every case must be determined on its peculiar facts and in accordance with the Rules of procedure governing the trial Court in question – Jadcom Limited Vs Oguns Electrical Ltd (2004) 3 NWLR (Pt 859) 153, Oando Nigeria Plc Vs Adijere West Africa Ltd (2013) LPELR 20591(SC). The applicable Rules of Court in the instant case is the High Court of Plateau State Civil Procedure Rules, 1988. Order 25 thereof reads, in part, thus:
“13. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or otherwise.
14. When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance. And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.”
In applying these provisions, a trial Court is enjoined to bear in mind that where a defendant employs a general traverse in the statement of defence, it must not be discarded outright, but should be given effect along with the tenor of the other averments in the other paragraphs of the statement of defence and also that the averments in the statement of defence must not be considered in isolation but in conjunction with each other so that the issues joined in the pleadings can be properly ascertained – Pan Asian African Co Ltd Vs NICON Ltd (1982) 9 SC 1, Ugochukwu Vs Cooperative Bank Plc (1996) 7 SCNJ 22, Arisons Trading & Engineering Co. Ltd Vs Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26. It must also be understood that a traverse could be made either expressly or by necessary implication and that it is not the law that every paragraph of the statement of claim should be specifically denied, and that so long as the defendant puts forward a case that materially conflicts with that propounded by the plaintiff, it is sufficient – Lewis & Peat (NRI) Ltd Vs Akhimien (1976) All NLR 365, Agwunedu Vs Onwumere (1994) 1 SCNJ 106, Meridien Trade Corporation Ltd Vs Metal Construction (WA) Ltd (1998) 3 SC 20. In Union Bank of Nigeria Plc Vs Jeric Nigeria Ltd (1998) 2 NWLR (Pt 536) 63, this Court explained the point thus:
“A party may deny the averments in his opponent’s pleading expressly or by necessary implication. A denial is said to be express when a party meets the averments in his opponent’s pleadings frontally or specifically by stating that he does not admit the pleaded fact. A denial by implication arises when a party in pleadings sets up facts which are inconsistent with those in his opponent’s pleadings or which belie them. For instance, if a plaintiff pleads that he was in Lagos all day yesterday and his opponent pleads that the plaintiff was in Jos all day yesterday, there is an implied denial of the plaintiff’s averment.” PER ABIRU, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

Now, it is settled law that parties and the Court are bound by the case made out on the pleadings – Orlu Vs Onyeka (2018) 3 NWLR (Pt 1607) 467, Ozomgbachi Vs Amadi (2018) 17 NWLR (Pt 1647) 171 and Sylva Vs Independent National Electoral Commission (2018) 18 NWLR (Pt 1651) 310. Thus, a party is not allowed to make a case outside the averments in his pleadings – Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. Similarly, a Court, be it a trial Court or an appellate Court, cannot make a case for a party outside its pleadings – Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.
These stated principles transcend to the pleading of documents and it is trite law that where a document is pleaded for a purpose by a party, it cannot be used by that party or be considered by the Court for a purpose for which it was not pleaded – Onwumelu Vs Duru (1997) 10 NWLR (Pt 525) 377, Agbodike Vs Onyekaba (2001) 10 NWLR (Pt 722) 576, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Gbinijie Vs Odji (2011) 4 NWLR (Pt 1236) 103. In Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360, Ikongbeh JCA explained this point at pages 377-378 G-A thus:
“In my view, the learned trial Judge was not, having regard to the pleadings and evidence before her, justified in admitting Exhibit A for the sole purpose of providing evidence of payment of the purchase price in respect of the land or for any other purpose at all. The fact that the document could also serve as evidence of payment of the purchase price was, with respect, of little or no moment before her. As has been seen, it had not been brought up for that purpose. It had been produced as the very document that effected the transfer of interest in the land…”
In other words, in carrying out an evaluation of a document tendered by a party, a trial Court must have recourse to the purpose for which the document was pleaded and tendered by the party. It is clear from the above reproduced excerpt of the judgment appealed against that the lower Court evaluated the contents of the document, the Hausa and English versions of which were tendered Exhibits C and C1, independent of the totality of the respective cases presented by the parties and that, in doing so, it relied largely on the provisions of Section 128 of the Evidence Act as it stated repeatedly that neither it nor the parties could add to, subtract from, vary or alter the document. Section 128 of the Evidence Act provides:
“When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” PER ABIRU, J.C.A.

DUTY OF APPELLATE COURT WHEN MATTERS ARE ON APPEAL

It is without doubt that the lower Court abdicated its duty to evaluate the evidence led by the parties because of its reliance on a phantom and non-existent admission on the pleadings and that the part of the evidence that it ventured to evaluate, it improperly evaluated. The entire judgment was bedeviled by non-evaluation and improper evaluation of evidence. It is settled law that the proper steps for an appellate Court to take where the lower Court has failed to properly evaluate the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence available on the records if the question of credibility of witnesses would not arise – Orianwo Vs Okene (2002) 14 NWLR (Pt 786) 156, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522. Where the credibility of a witness is not in point, a Court sitting on appeal can evaluate such evidence. Where the conclusion is arrived at without any real controversy, such as in the case of documentary evidence, or where there is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate Court should consider itself to be in as good a position as the trial Court, in so far as the evaluation of such evidence is concerned – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Bauchi State delivered in Suit No BA/138/2013 by Honorable Justice M. A. Sambo on the 3rd of October, 2017. The Respondent was the claimant in the lower Court and his claims against the Appellant were for (i) the sum of N3.3 Million being money had and received; (ii) the sum of N330,000.00 being the Counsel professional fees; (iii) post judgment interest at the rate of 10% per annum on the judgment sum until date of final liquidation.

The case of the Respondent on the pleadings in support of his claims was that sometime around April, 2011, he purchased a large expanse of land measuring 150 meters by 150 meters from the Appellant for N3.5 Million and out of which he paid N3.3 Million, leaving a balance of N200,000.00 and he was put in possession thereof and he started looking for money to commence its development. It was his case that he took a loan to pay the N3.3 Million and that he was unable to raise further funds to develop the land and that when the pressure from his creditors became unbearable, he took a decision to

sell the land to pay off his creditors and to buy a less expensive land and that he informed the Appellant of his decision. It was his case that the Appellant took advantage of his desperation and secretly resold the land to some other persons, including one Mrs. Elizabeth Gainaka and that he confronted the Appellant when he discovered this fact and the Appellant admitted reselling the land and promised to refund his purchase price by the end of December, 2012.

It was the case of the Respondent that the Appellant failed, neglected and refused to refund the purchase price as promised and that he decided to take out a legal action to recover his money and whereupon the Appellant approached some Elders in his church to intervene on his behalf. It was his case that he agreed with the plea of the Elders and it was agreed that the Appellant would pay the money on or before the 5th of September, 2013 to the Reverend of the Church for onward transmission to him and the agreement was reduced into writing in Hausa language and it was signed by the parties present thereat. It was his case that the Appellant failed, neglected and refused to pay the money by the time

agreed or at any time thereafter and that this prompted him to engage a firm of Solicitors to commence this legal action and that he paid the sum N330,000.00 as legal fees.

The Appellant, in response, admitted selling the parcel of land to the Respondent and putting the Respondent in possession thereof, but he denied the other assertions as blatant falsehood. It was his case that in furtherance of the desire to resell the land, it was the Respondent who sold a portion of the land to one Alhaji Adamu Hassan for the sum of N1 Million and that the sale was reduced into writing in Hausa language. It was his case that on the pretext of wanting to repay his creditors, the Respondent approached him on different occasions to borrow different sums of money with a promise to repay when he sold the land and that the total sum borrowed by the Respondent was N2.56 Million. The Appellant denied admitting selling the land and/or making any promise to the Respondent or to the Elders of the Respondent’s church to refund any money to the Respondent and that the agreement to repay the sum of N3.3 Million witnessed by the Reverend of the Church was between him and

another person and it related to another transaction and had nothing to do with the Respondent.

The matter proceeded to trial and in the course of which the Respondent called two witnesses and tendered documents in proof of his claim and the Appellant called two witnesses and also tendered one document in proof of his defence. At the conclusion of trial, Counsel to the parties filed and adopted final written addresses and the lower Court thereafter entered judgment wherein it granted the claims of the Respondent. The lower Court found that the Appellant did not properly traverse the averment in the pleadings of the Respondent that he took advantage of the Respondent’s desperation and secretly resold the land to some other persons, including one Mrs. Elizabeth Gainaka and that the assertion was thus admitted and needed no further proof and was sufficient to sustain the claim of the Respondent. The lower Court further found that the undertaking given by the Appellant to pay to the Reverend of the Respondent’s church the sum of N3.3 Million on or before the 5th of September, 2013, the Hausa and English versions of which were tendered as Exhibits

C and C1, was of no probative value.

The Appellant was dissatisfied with the finding of the lower Court that he did not properly traverse the averment of the Respondent’s pleadings and thus admitted the claims of the Respondent, consequent on which the lower Court entered judgment for the Respondent. The Appellant caused his Counsel to file a notice of appeal dated the 6th of October, 2017 and containing three grounds of appeal against it. The notice of appeal was subsequently amended and Appellant filed an amended notice of appeal containing four grounds of appeal and dated the 26th of August, 2019 and the amended notice of appeal was deemed properly filed and served by this Court on the 10th of October, 2019. The Respondent too was dissatisfied with the finding of the lower Court that the undertaking given by the Appellant in Exhibits C and C1 was of no probative value and he caused his Counsel to file a notice of cross appeal dated the 8th of February, 2019 and containing four grounds of appeal against it.

In arguing the appeal and the cross appeal before the Court, Counsel to the Appellant filed an amended brief of arguments dated the 17th

of June, 2019 on the 13th of September, 2019 and the amended brief of arguments was deemed properly filed by this Court on the 10th of October, 2019. Counsel to the Respondent filed an amended Respondent/Cross Appellant brief of arguments dated the 10th of June, 2019 on the same date and the brief of arguments was deemed properly filed by the Court on the 11th of June, 2019. Counsel to the Appellant filed a Cross Respondent’s brief of arguments dated the 2nd of September, 2019 on the 13th of September, 2019 and the brief of arguments was deemed properly filed by the Court on the 10th of October, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submissions in the appeal. This Court will start its deliberations with the appeal of the Appellant.

The Appeal
Counsel to the Appellant distilled one issue for determination in the appeal and it was:
Having regards to the pleadings and evidence of the parties, was the learned trial Judge right in entering judgment for the Respondent?

In arguing the issue for determination, Counsel reproduced the

portion of the judgment wherein the lower Court made the finding that the Appellant did not traverse the averment of the Respondent that the Appellant took advantage of his desperation and secretly resold the land to some other persons, including one Mrs. Elizabeth Gainaka. Counsel stated that it is the law that a party may deny the averments in his adversary’s pleading either expressly or by implication and that a denial is said to be express when the party meets the averments frontally or specifically by stating that he does not admit the pleaded facts and it is by implication when the party sets up facts which are inconsistent with those in the other party’s pleadings or which belie them. Counsel stated that the Appellant denied the particular averment of the Respondent and pleaded that it was the Respondent that sold part of the land to one Alhaji Adamu Hassan for N1 Million and he adduced oral and documentary evidence in proof of this averment.

Counsel stated that for averments in pleadings to constitute a proper traverse, it is not necessary that every paragraph of the statement of claim should be specifically denied, so long as the case

put forward by the defendant conflicts on material facts with case of the plaintiff and that a Court is enjoined to look at the entire defence and not limit its consideration to particular paragraphs of the statement of defence and he referred to the cases of Union Bank of Nigeria Ltd Vs Jeric Nigeria Ltd (1998) 2 NWLR (Pt 536) 63, Dada Vs Dosunmu (2006) 18 NWLR (Pt 1010) 134 and Agballah Vs Chime (2009) 1 NWLR (Pt 1122) 373. Counsel thereafter reproduced the statement of claim of the Respondent and the statement of defence of the Appellant and stated that the Appellant pleaded sufficient facts joining issues with the Respondent on the material aspects of his case and cannot be said to have admitted any aspect thereof. Counsel stated that additionally the Appellant specifically denied the paragraph containing the particular assertion of the Respondent and that the law is that even such a general traverse was sufficient to join issues with the Respondent on the averment concerned and he referred to the cases of Dairo Vs Trustees, T. A. D., Lagos (2018) 1 NWLR (Pt 1599) 62 and Fatoyinbo Vs Osadeyi (2009) 16 NWLR (Pt 1168) 605 and stated that the lower Court was

thus in error when it found that the Appellant did not join issues with the Respondent on the averment.

Counsel stated that this erroneous finding of the lower Court led it to failing to consider and evaluate the entire evidence led by the parties in proof of their respective cases and that had the lower Court done so, it would have found that the Respondent failed to prove his case and that the Appellant did not admit selling the land to anyone and that this failure amounted to a serious dereliction of duty on the part of the lower Court in the circumstances of this case and it occasioned a miscarriage of justice and he referred to the cases of Sekoni Vs UTC (Nig) Ltd (2006) 8 NWLR (Pt 982) 283 and Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559, amongst others. Counsel traversed through the evidence led by the parties in proof of their respective cases and stated that an objective review of the evidence shows that the Respondent did not discharge the onus on him to prove the sale of the land by the Appellant to anyone or to Mrs. Elizabeth Gainaka. Counsel stated that where a trial Court fails to properly evaluate the evidence led by the parties

before coming to a decision, the decision cannot stand and the appellate Court is enjoined to intervene and he referred to the case of Eze Vs Okoloagu (2010) 3 NWLR (Pt 1180) 183.

Counsel urged this Court to resolve the issue for determination in favour of the Appellant and to find merit in the appeal and grant same, interfere with the decision of the lower Court by setting it aside and to dismiss the case of the Respondent before the lower Court.

In his response, Counsel to the Respondent distilled two issues for determination in the appeal of the Appellant and these were:
i. Whether the Appellant’s issue for determination flows directly from any of the grounds of appeal, and if otherwise, whether the grounds of appeal are not liable to be struck out.
ii. Whether the Appellant sufficiently traversed the specific allegation that while the search for a buyer was going on, he took advantage of the Respondent’s desperation and secretly sold the land to several people including one Mrs. Elizabeth Gainaka as to cast the burden on the Respondent to prove the allegation.

Counsel stated that he distilled the first issue for

determination from a notice of preliminary objection and the second issue for determination from Ground Two of the notice of appeal. This Court has searched through its records and cannot find a notice of preliminary objection filed by the Respondent and it cannot also find any such notice of preliminary objection incorporated in the brief of arguments of the Respondent. At the hearing of the appeal, the attention of this Court was not drawn to any such preliminary objection and no preliminary objection was referred to or argued prior to the hearing of the appeal. It is settled that a party seeking to raise a preliminary objection must either file a separate notice of the preliminary objection stating the grounds therefor or incorporate the notice and the grounds of the objection in his brief of arguments. It is improper to raise a preliminary objection subtly by merely constituting it into an issue for determination in the brief of arguments and proceeding to argue same – Oforkire Vs Maduike (2003) 5 NWLR (Pt 812) 166, Odedo Vs Independent National Electoral Commission (2008) 17 NWLR (Pt 1117) 554,

Wema Securities & Finance Plc Vs NigerianAgricultural Insurance Corporation (2015) LPELR 24833(SC).
It is worthy of note that the Appellant did not file a response to the arguments of the Respondent on the preliminary objection. Perhaps, if he had, the improper manner of the raising of the preliminary objection could have been overlooked, as suggested by the Supreme Court in C S S Bookshops Ltd Vs The Registered Trustees of the Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530 at 556, Shell Petroleum Development Corporation Vs Agbara (2015) LPELR 25987(SC). The failure of the Appellant to file a response to the preliminary objection exacerbates the impropriety of the preliminary objection and necessitates its treatment with disdain – Uwazurike Vs Attorney General, Federation (2007) 8 NWLR (Pt 1035) 1. Additionally, the Respondent did not point the attention of the Court to the preliminary objection, and did not raise and argue same, before the taking of arguments on the substantive appeal. The law is that the preliminary objection must be ignored in such situations – Onochie Vs Odogwu (2006) 6 NWLR (Pt 975) 65, Attorney General, Rivers State Vs Ude (2006) 17 NWLR (Pt 1008)

436, Aliucha Vs Elechi (2012) 13 NWLR (Pt 1317) 330. Also, it is settled law that issues for determination in an appeal are formulated from grounds of appeal, and not from a notice of preliminary objection, and where an issue for determination is not formulated from a ground of appeal, it is incompetent – Eta Vs Dazie (2013) 9 NWLR (Pt 1359) 248, Angadi Vs PDP (2018) LPELR 44375(SC). This Court will completely ignore the first issue for determination formulated by the Counsel to the Respondent and the arguments proffered thereunder.

In arguing the second issue for determination, Counsel referred to the case of the Respondent on the pleadings and stated that the averment that the Appellant took advantage of the Respondent’s desperation and secretly resold the land to some other persons, including one Mrs. Elizabeth Gainaka was the fulcrum of the case of the Respondent and was sufficient to sustain the claim for money had and received over a failed transaction. Counsel conceded that the Appellant did deny the truth of the averment in his statement of defence and went further to assert that it was the Respondent who, in his desire to sell the

land, sold a portion of it to one Alhaji Adamu Hassan for N1 Million in the presence of witnesses, but stated that these do not amount to a proper and sufficient traverse as they only went on a frolic of making allegations against the Respondent instead of responding to the case of the Respondent and he referred to the case of Nwokoro Vs Onuma (1999) LPELR 2126(SC). Counsel stated that rather than frontally challenge the specific allegation of the Respondent, the Appellant chose to be evasive and that nowhere in the entire statement of defence did the Appellant deny secretly selling the land or mention the name of Mrs. Elizabeth Gainaka and he referred to the case of Danladi Vs Dangiri (2015) 2 NWLR (Pt 1442) 124.

Counsel stated that the Appellant built his defence on a general traverse which merely put the Respondent to the strictest proof of the averment in question and that this did not meet the requirement of pleadings as laid by Order 25 Rules 13 and 14 of the Bauchi State High Court Civil Procedure Rules 1987. Counsel referred to the cases of Adeosun Vs The Governor of Ekiti State (2012) LPELR 7843(SC) and Dabup Vs Kolo (1993) LPELR 905(SC) in

reiterating the essence of filing pleadings and stated that the failure of the Appellant to join issues with the Respondent on the averment in question removed the obligation on the Respondent to lead evidence in proof of same. Counsel stated that the cases relied upon by the Counsel to the Appellant were inapplicable in the present case because the claims in those cases were not for a debt or liquidated demand and that the law is that in a claim for a debt or liquidated demand, as in the instant case, a general traverse was not sufficient and he referred to the case of Meridien Trade Corporation Ltd Vs Metal Construction (WA) Ltd (1998) LPELR 1862(SC). Counsel asserted that the lower Court was right in its finding that the Appellant did not traverse the averment and that this entitled the Respondent to judgment.

Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

The appeal of the Appellant revolves on a very narrow issue of “what amounts to a proper and sufficient traverse of pleadings”. The case of the Respondent on the pleadings was that he

was desirous of reselling the land he purchased from the Appellant for N3.3 Million because of the pressure from his creditors and that he informed the Appellant of his plan and he averred in paragraph 8 of his statement of claim that while he was searching for a buyer, the Appellant took advantage of his desperation and secretly sold the land to several people including one Mrs. Elizabeth Gainaka. In his response in the statement of defence, the Appellant in paragraph 5 denied the entire averment in paragraph 8 of the statement of claim and described it as blatant falsehood and he put the Respondent to the strictest proof thereof and he proceeded in paragraph 6 to say that, in response to the said paragraph 8 of the statement of claim, it was the Respondent who, in an attempt to dispose of the said land, sold part thereof to one Alhaji Adamu Hassan for the sum of N1 Million in the presence of witness and as evidenced in writing by an agreement.

The question before the lower Court was whether the response of the Appellant in paragraphs 5 and 6 of the statement of defence qualified as proper traverse of the averment in paragraph 8 of the statement of claim.

The lower Court answered the question in the negative and held that since the Appellant did not categorically deny the desperation and selling of the land to others including Mrs. Elizabeth Gainama, the response of the Appellant did not qualify as a proper traverse and that Appellant did not thus join issue with the Respondent on the averment. The lower Court held that the failure of the Appellant to so join issue amounted to an admission of the averment and it entered judgment for the Respondent for the sum of N3.3 Million, together with post judgment interest, solely on that basis. The issue for determination in this appeal is whether these findings of the lower Court were correct.
The word “traverse”, which comes from the French ‘traverser”, signifies, in a civil proceeding, to deny or controvert anything alleged in the declaration, plea, replication or other pleadings. There is no real distinction between traverses and denials, they are same in substance. However, a traverse, in the strict technical meaning, and more ordinary acceptation of the term, signifies a direct denial in formal words. A review of our case law history

shows that there are instances where the Courts have treated an ordinary denial as being the same as a traverse, and there are other instances where the Courts have demanded the more strict technical meaning of the word. Hence, there are cases where the Supreme Court held that a general traverse by a defendant in a pleading that he denies the case put forward by a plaintiff seriatim is a proper traverse and has the effect of putting the plaintiff to the proof of all the allegations in the statement of claim – see for example the cases of Attah Vs Nnacho (1965) NMLR 28, Mandilas Karaberis Ltd Vs Apena (1969) NMLR 199, Benson Vs Otubor (1975) 3 SC 6, A. C. E. Jimona Ltd Vs Nigerian Electrical Contracting Co Ltd (1966) 1 All NLR 122, Osafile Vs Odi (1994) 2 NWLR (Pt 325) 125, Umesie Vs Onuaguluchi (1995) 12 SCNJ 120, Arisons Trading & Engineering Co. Ltd Vs Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26 and Dairo Vs The Registered Trustees of the Anglican Diocese of Lagos (2018) 1 NWLR (Pt 1599) 62.
There are other cases where the Supreme Court stated that a general traverse or an averment by a defendant that he is not in a position to

admit or deny the particular allegation raised by a plaintiff and/or that he will at the trial put the plaintiff to the strictest proof of the allegations did not constitute a proper traverse and that if a defendant does not admit a particular material allegation in a statement of claim, he must state so specifically, directly, unequivocally and unambiguously – see for example the cases of Akintola Vs Solano (1986) 2 NWLR (Pt 24) 598, Attorney General of Anambra State Vs C. N. Onuselogu Enterprises Ltd (1987) NWLR (Pt 67) 547, Oseni Vs Dawodu (1994) 4 SCNJ 197, Meridien Trade Corporation Ltd Vs Metal Construction (WA) Ltd (1998) 3 SC 20, Ibeanu Vs Ogbeide (1998) 12 NWLR (Pt 576) 1, Nwokoro Vs Onuma (1999) 12 NWLR (Pt 631) 342, Asafa Foods Factory Ltd Vs Alraine Nig Ltd (2002) 12 NWLR (Pt 781) 353, Bamgbegbin Vs Oriare (2009) 13 NWLR (Pt 1158) 370, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, and Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 166.
What the above position of the law portends is that there is no universal rule as to what amounts to proper traverse and that every case must be determined on its peculiar facts and in

accordance with the Rules of procedure governing the trial Court in question – Jadcom Limited Vs Oguns Electrical Ltd (2004) 3 NWLR (Pt 859) 153, Oando Nigeria Plc Vs Adijere West Africa Ltd (2013) LPELR 20591(SC). The applicable Rules of Court in the instant case is the High Court of Plateau State Civil Procedure Rules, 1988. Order 25 thereof reads, in part, thus:
“13. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or otherwise.
14. When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance. And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.”
In applying these provisions, a trial Court is enjoined to bear in mind that

where a defendant employs a general traverse in the statement of defence, it must not be discarded outright, but should be given effect along with the tenor of the other averments in the other paragraphs of the statement of defence and also that the averments in the statement of defence must not be considered in isolation but in conjunction with each other so that the issues joined in the pleadings can be properly ascertained – Pan Asian African Co Ltd Vs NICON Ltd (1982) 9 SC 1, Ugochukwu Vs Cooperative Bank Plc (1996) 7 SCNJ 22, Arisons Trading & Engineering Co. Ltd Vs Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26. It must also be understood that a traverse could be made either expressly or by necessary implication and that it is not the law that every paragraph of the statement of claim should be specifically denied, and that so long as the defendant puts forward a case that materially conflicts with that propounded by the plaintiff, it is sufficient – Lewis & Peat (NRI) Ltd Vs Akhimien (1976) All NLR 365, Agwunedu Vs Onwumere (1994) 1 SCNJ 106, Meridien Trade Corporation Ltd Vs Metal Construction (WA) Ltd (1998) 3 SC 20.

In Union Bank of Nigeria Plc Vs Jeric Nigeria Ltd (1998) 2 NWLR (Pt 536) 63, this Court explained the point thus:
“A party may deny the averments in his opponent’s pleading expressly or by necessary implication. A denial is said to be express when a party meets the averments in his opponent’s pleadings frontally or specifically by stating that he does not admit the pleaded fact. A denial by implication arises when a party in pleadings sets up facts which are inconsistent with those in his opponent’s pleadings or which belie them. For instance, if a plaintiff pleads that he was in Lagos all day yesterday and his opponent pleads that the plaintiff was in Jos all day yesterday, there is an implied denial of the plaintiff’s averment.”
In the instant case, and as stated above, the Appellant, in response to the averment of the Respondent in paragraph 8 of his statement of claim that while he was searching for a buyer, the Appellant took advantage of his desperation and secretly sold the land to several people including one Mrs. Elizabeth Gainaka, prefaced his statement of defence with a general traverse denying all the

allegations contained in the statement of claim. The Appellant followed this up in paragraph 5 of the statement of defence by denying outright the entire averment in paragraph 8 of the statement of claim, describing it as a blatant falsehood and putting the Respondent to the strictest proof thereof, and he proceeded in paragraph 6 thereof to say that, in response to the said paragraph 8 of the statement of claim, it was the Respondent who, in an attempt to dispose of the said land, sold part thereof to one Alhaji Adamu Hassan for the sum of N1 Million in the presence of witness and as evidenced in writing by an agreement.
Reading these paragraphs of the statement of defence together, it is obvious that not only did the Appellant specifically, directly, unequivocally and unambiguously deny the averment in paragraph 8 of the statement of claim, he put forward a different case on the sale of the land which materially conflicted with the case of the Respondent. The reasoning of the lower Court that the averments in the statement of defence did not constitute a sufficient traverse because the Appellant did not use the exact words used in couching the averment

in expressing his denial; i.e. that he did not say “I deny taking advantage of the Respondent’s desperation and secretly selling the land to several people including one Mrs. Elizabeth Gainaka”, meant that he did not categorically deny the averment was, with respect, antithetical to the law on traverse of pleadings. In Ajao & Ors Vs Alao (1986) 12 S.C. 193 at 244, Oputa, J. S.C. stated that:
“To constitute a traverse it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done. But what is essential is that the case put forward by the defendants conflicts on material particulars with that put forward by the plaintiff and thus put the different material averments in issue.”
In other words, it is the gist of an allegation that needs to be denied to constitute a proper traverse and not the terms in which it is made – Prosan Engineering Co. Ltd Vs Kips Engineering Ltd (2015) LPELR 40407(CA). Once a statement of defence sets out the details of the case of the defendant which are opposed to the case pleaded by the plaintiff, it constitutes sufficient traverse and

it is immaterial that it did not specifically deny every paragraph of the statement of claim – Audu Vs Guta (2004) 4 NWLR (Pt 864) 463.
The finding of the lower Court that the Appellant did not traverse the averment of the Respondent that the Appellant took advantage of his desperation and secretly sold the land to several people including one Mrs. Elizabeth Gainaka was ill-conceived and not well founded. It is hereby set aside by this Court. The conclusion reached from that finding, i.e. that the Appellant thus admitted the averment, was equally wrong and it is also hereby set aside by this Court. The judgment entered in favour of the Respondent by lower Court solely on the basis of the phantom admission of the averment cannot be allowed to stand in the circumstances and it is liable to be set aside.

This Court finds merit in the appeal of the Appellant. This takes us to the cross appeal of the Respondent.

Cross Appeal
Counsel to the Respondent distilled one issue for determination in the cross appeal and it was:
Whether the trial Judge was wrong in discountenancing the oral evidence led to explain the person who was supposed to

receive the money mentioned in Exhibits C and C1 and, if the answer is in the affirmative, whether on the state of the pleadings and the admitted oral and documentary evidence read together with the contents of Exhibits C and C1, the Respondent proved his case to be entitled to judgment irrespective of the ground of insufficient pleadings relied on by the trial Judge.

In arguing the issue for determination, Counsel to the Respondent, as Cross Appellant, stated that the Respondent testified personally and called one other witness, a Reverend Boyi Geji, in proof of his case and he traversed through the evidence of the second plaintiff witness, particularly where he testified that both the Appellant and the Respondent came to his residence, on his invitation in respect of the issues leading up to this case, and whereat the Appellant drafted the document tendered as Exhibit C. Counsel stated that the witness gave evidence showing clearly that document, Exhibit C, was prepared and signed by the Appellant and that it was in respect of the transaction of sale of land between the Appellant and the Respondent and that the testimony of the witness on these facts

were not discredited or disparaged under cross examination. Counsel stated that the Respondent led better evidence to explain the essence of Exhibit C than the Appellant and the version of his case ought to be believed and he referred to the case of Agbomeji Vs Bakare (1998) SCNJ 33.

Counsel stated that the lower Court had sufficient material evidence before him to connect the contents of the document, Exhibit C, to the transaction between the Appellant and the Respondent and that its failure to so do was by reason of its refusal to evaluate the oral evidence led along with the contents of the document. Counsel stated that the lower Court acted as if it was a taboo for it to look at any evidence outside Exhibit C, even those that threw more light on the purport of the document, in making its findings on the essence of the document and that it forgot that its duty was to use the document as a hanger to assess the credibility of the oral evidence led by both parties on the essence of the document and he referred to the case of Odutola Vs Mabogunje (2013) 7 NWLR (Pt 1354) 522. Counsel stated that the principle of law that the Court will not permit parole

evidence to contradict, vary or add to the contents of a document stated in Section 128 of the Evidence Act and which the lower Court used to exclude the avalanche of oral evidence led on the purport of the document admits several exceptions and that the circumstances of this case comes within the proviso in paragraph (b) thereof and the oral evidence was not inconsistent with the terms of the document and was thus admissible to explain the document and he referred to the case of Nekpenekpen Vs Egbemhonkhaye (2014) LPELR 22335.

Counsel stated that had the lower Court properly evaluated the oral evidence led by the Respondent along with the contents of Exhibit C, it would have come to the conclusion that the Respondent led credible evidence in proof of his case and would have entered judgment for the Respondent, outside the ground of insufficient traverse by the Appellant. Counsel stated that this was a clear case of improper evaluation of documentary evidence along with the oral evidence on record and that this Court is in as a good position as the lower Court to re-evaluate the documents and the oral evidence and come to a conclusion different from that

of the lower Court and he referred to the cases of Abi Vs CBN (2012) 3 NWLR (Pt 1286) 1 and Onwuzuruike Vs Edoziem (2016) 16 NWLR 215. Counsel urged the Court to find that the lower Court was in error in failing to accord probative value to the contents of Exhibit C and to thereafter carry out a proper evaluation of the oral evidence led by the parties along with the documentary evidence tendered and to come to a conclusion that the Respondent led a more preponderating evidence than the Appellant and thus proved his claims and to sustain the judgment entered in favour of the Respondent on that basis, and not on the basis of improper traverse relied upon by the lower Court. Counsel prayed the Court to allow the cross appeal.

In his response, Counsel to the Appellant, as Cross Respondent, agreed that there was indeed one issue for determination in the cross appeal and he reformulated the issue thus:
Whether the learned trial Judge was right in discountenancing or not attaching any probative value to Exhibits C and C1 in supporting the Respondent’s case?

In arguing the issue for determination, Counsel reproduced the findings made by the lower

Court on Exhibits C and C1 and he reproduced the contents of the English version of the document and he analyzed the contents and stated that the name of the Respondent was not mentioned in the document and that this made the Respondent a total stranger to the document and that as such the Respondent cannot take advantage of its contents because agreements only binds parties to it and he referred to the cases of W.D.N. Ltd Vs Oyibo (1992) 5 NWLR (Pt 239) 77 and Makwe Vs Nwukor (2001) 14 NWLR (Pt 733) 356, amongst others. Counsel referred to the cases of Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54 and Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296 in asserting the law that extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of a written instrument and he thereafter traversed through the pleadings of the Respondent as well as through the evidence of the two plaintiff witnesses on the document, Exhibits C and C1, and the denials in the case of the Appellant and stated that the contents of Exhibits C and C1 did not tally with the evidence of the plaintiff witnesses.

Counsel stated that the case of the Respondent on the

pleadings on the making of Exhibits C and C1 was that it was made pursuant to the intervention of some Elders of the Church, but that the Respondent did not call any of the Elders to testify at the trial and that this amounted to withholding evidence and he referred to the case of Aku Nmecha Transport Services Nig Ltd Vs Atoloye (1993) 6 NWLR (Pt 298) 233. Counsel stated that it was the primary duty of the lower Court who saw, heard and watched the demeanour of the witnesses to evaluate evidence and that where the lower Court has properly done so, as in the instant case, an appellate Court will not disturb the findings made, particularly as the Respondent did not show how the lower Court failed to discharge its duty and he referred to the cases of Egesimba Vs Onuzuruike (2002) 15 NWLR (Pt 791) 466 and Julius Berger (Nig) Plc Vs Nwagwu (2006) 12 NWLR (Pt 995) 518.

Counsel urged the Court to find that the lower Court rightly found that the document, Exhibits C and C1, was not deserving of probative value and to resolve the issue for determination in favour of the Appellant and dismiss the cross appeal accordingly.

In deliberating on the value to give

to the document, Exhibits C and C1, the lower Court stated in the judgment thus:
“On the content of Exhibits C and C1, the Court has given some very good look with trying to in any way add, subtract or re-write Exhibits C and C1 all from its content. All it says is that the defendant has promised to bring to the Rev the money he had promised to bring to him, N3,300,000 on or before the 5th September, 2013. He made the undertaking in the presence of:
1. Baba Rev. Boyi Geji
2. Yarima Gayya Gira
3. Umar Ibrahim
All the above are spelt out on Exhibits C and C1, but the content which is clear does not state the purpose for which the sum was paid and Baba Geji has testified before the Court and he was cross examined, yet he has not filled in any way missing gap (which by law he cannot) as to the purpose for which the sum was to be made, whether it was for any land transaction or it was meant for one Mama Mai Masa as alleged by the defendant. Yarima Gayya also gave evidence but also was not in any position to state that it was for the transaction now in dispute. Indeed it was only granted that the undertaking was made on land issue

without stating if it is for the sale of the land between the parties herein or for one Mama Mai Masa. Therefore all this Court could deduct from the clear face of Exhibits C and C1 is that the sum of N3,300,000 only was for land issue and no more, because a Court of law has no power to alter, add or subtract from the process of any document duly agreed upon.”

NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.
These stated principles transcend to the pleading of documents and it is trite law that where a document is pleaded for a purpose by a party, it cannot be used by that party or be considered by the Court for a purpose for which it was not pleaded – Onwumelu Vs Duru (1997) 10 NWLR (Pt 525) 377, Agbodike Vs Onyekaba (2001) 10 NWLR (Pt 722) 576, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Gbinijie Vs Odji (2011) 4 NWLR (Pt 1236) 103. In Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360, Ikongbeh JCA explained this point at pages 377-378 G-A thus:
“In my view, the learned trial Judge was not, having regard to the pleadings and evidence before her, justified in admitting Exhibit A for the sole purpose of providing evidence of payment of the purchase price in respect of the land or for any other purpose at all. The fact that the document could also serve as evidence of payment of the purchase price was, with respect, of little or no moment before her. As has been seen, it had not been brought up for that purpose. It had

been produced as the very document that effected the transfer of interest in the land…”
In other words, in carrying out an evaluation of a document tendered by a party, a trial Court must have recourse to the purpose for which the document was pleaded and tendered by the party.

It is clear from the above reproduced excerpt of the judgment appealed against that the lower Court evaluated the contents of the document, the Hausa and English versions of which were tendered Exhibits C and C1, independent of the totality of the respective cases presented by the parties and that, in doing so, it relied largely on the provisions of Section 128 of the Evidence Act as it stated repeatedly that neither it nor the parties could add to, subtract from, vary or alter the document. Section 128 of the Evidence Act provides:
“When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the

document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
Reading this provision, it is clear that Section 128 of the Evidence Act would come into play where a document is pleaded and tendered as a judgment of a Court or as a contract embodying all the agreed terms of such a contract between the parties. The provision will not be applicable where a document is not so pleaded or tendered. The document, Exhibits C and C1, was pleaded and tendered by the Respondent. The question is for what purpose was it pleaded and tendered? As stated earlier, the case of the Respondent on the pleading was that he was desirous and desperate to resell the portion of land he purchased from the Appellant for N3.3 Million and that the Appellant took advantage of his desperation and secretly resold the land to some other persons, including one Mrs. Elizabeth Gainaka and that he confronted the Appellant when he discovered this fact and the Appellant admitted reselling the land and promised to refund

his purchase price by ending of December, 2012. It was his case that the Appellant failed, neglected and refused to refund the purchase price as promised and that at a point in time the Elders in his church intervened in the matter on behalf of the Appellant and that it was agreed that the Appellant would pay the money on or before the 5th of September, 2013 to the Reverend of the Church for onward transmission to him and the agreement was reduced into writing in Hausa language and it was signed by the parties present thereat. It was the Hausa and English versions of the document that was tendered as Exhibits C and C1. It is obvious that the Respondent did not plead and did not tender the document as the sole basis for his cause of action against the Appellant and/or as containing all the terms of his transaction with the Appellant on the refund, but only as part of the evidence to be relied on in support of his case. In his response, the Appellant admitted signing the document but stated it was between him and another person and it related to different transaction and had nothing to do with the Respondent. Thus, the existence of the document was not in

dispute between the parties and the fact that it was made by the Appellant was not in contest. In the document, the Appellant undertook to take the sum of N3.3 Million to the Reverend on or before the 5th of September, 2013. The question before the lower Court on the pleading was whether the document supported the case of the Respondent that it was made in his favour by the Appellant or the case of the Appellant that he made it in favour of another person.
What was expected of the lower Court, in the face of the pleadings of the parties, was to evaluate the respective oral evidence put forward by the parties and then to use the document as a hanger to determine which of the respective cases was more credible, believable and reliable. It is settled law that where the oral testimonies of opposing parties or witnesses are irreconcilable on a point, the Court is at liberty to use documentary evidence as the barometer to determine the truth. A party whose evidence is supported by a documentary evidence is deemed as saying the truth – Military Governor, Lagos State Vs Adeyiga (2012) NWLR (Pt. 1293) 291, Doma Vs INEC (2012) 13 NWLR (Pt. 1317) 297,

Rabiu Vs Adebajo (2012) 15 NWLR (Pt. 1322) 125, BFI Group Corp. Vs BPE (2012) 18 NWLR (Pt. 1332) 209. This is not what the lower Court did in the instant case. The lower Court considered the document, Exhibits C and C1, independent of the respective cases put forward by the parties and it considered only the oral evidence led as to its making in coming to the conclusion that it had no probative value. This was an improper evaluation of the document in the light of the pleadings and the complaint of the Respondent on the cross appeal is legitimate.
Counsel to the Respondent urged that should the Court find that the lower Court improperly evaluated the document, Exhibits C and C1, it should proceed to carry out the evaluation of the evidence led by the parties at trial and enter judgment accordingly. It is without doubt that the lower Court abdicated its duty to evaluate the evidence led by the parties because of its reliance on a phantom and non-existent admission on the pleadings and that the part of the evidence that it ventured to evaluate, it improperly evaluated. The entire judgment was bedeviled by non-evaluation and improper evaluation of evidence. It is

settled law that the proper steps for an appellate Court to take where the lower Court has failed to properly evaluate the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence available on the records if the question of credibility of witnesses would not arise – Orianwo Vs Okene (2002) 14 NWLR (Pt 786) 156, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522. Where the credibility of a witness is not in point, a Court sitting on appeal can evaluate such evidence. Where the conclusion is arrived at without any real controversy, such as in the case of documentary evidence, or where there is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate Court should consider itself to be in as good a position as the trial Court, in so far as the evaluation of such evidence is concerned – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt 1278) 54.
The question whether an order of retrial will be made by an appellate Court depends on the circumstances as the

justice of a particular case may dictate. Some of such circumstances include: (a) an order of retrial should not be made where the appellate Court is in a position to do justice after considering evidence that is basically documentary; (b) a retrial cannot be ordered where the evidence which the parties chose to present is there and the approach of the trial Court in law is there; if the approach was wrong and the decision is wrong, it should be corrected by the appellate Court and the right decision given; (c) a retrial should not be ordered if the litigation will be unnecessarily prolonged; (d) a retrial would not be ordered where the order would occasion injustice to the parties; and (e) a retrial will not be ordered when the judgment of the trial Court has demonstrated in full, a dispassionate consideration of the issues properly raised and heard and has reflected the result of such exercise. Where a judgment fails this test, a retrial will be ordered – Okeowo Vs Migliore (1979) 11 SC 138 and Ogundepo Vs Olumesan supra.
A retrial will also be ordered where a finding depends to a large extent on the credibility of witnesses. This is because an

appellate Court cannot, on the basis of printed record of evidence, usurp the function of the trial Court, who had the advantage of seeing, watching and observing the witness in the witness box, in respect of the evaluation of the credibility of a witness – Ochiba Vs State (2011) 17 NWLR (Pt 1277) 663, Ogundepo Vs Olumesan supra. As stated earlier, the respective cases presented by the parties was predicated largely on the oral evidence of their witnesses and supported by some pieces of documentary evidence. The resolution of the matter will depend largely on the credibility of the witnesses who testified. It is not a matter that can be resolved solely on the strength of the documentary evidence tendered. It is thus not a proper case for this Court to embark on an evaluation of the evidence led on record. It is one for an order of trial. The Court is not unaware that the case in the lower Court was commenced in 2013 and it will order an accelerated hearing of the matter. The cross appeal succeeds in part.

In conclusion, this Court finds merit in the appeal of the Appellant and it is hereby allowed. The Court also finds some merit in the cross appeal

of the Respondent and it is allowed in part. The judgment of the High Court of Bauchi State delivered in Suit No BA/138/2013 by Honorable Justice M. A. Sambo on the 3rd of October, 2017 is set aside. It is ordered that the matter be retried by the High Court of Bauchi State. The case file is hereby remitted to the Chief Judge of Bauchi State for re-assignment to a Judge, other than Justice M. A. Sambo, for retrial and the re-hearing shall be accelerated. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity of reading in advance the lead judgment delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA.

I am in full agreement with the reasoning and conclusion reached in the judgment that there is merit in the main appeal by the Appellant and should be allowed. I allow the main appeal.

Further to this, I also concur that there is some merit in the cross appeal by the Respondent and should be allowed in part. Accordingly I also allow, the cross appeal in part
I abide by the consequential orders therein contained in the lead

judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

J. Bichi For Appellant(s)

Patrick Owoicho For Respondent(s)