ILIYA & ANOR v. DANIEL
(2022)LCN/16902(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, February 04, 2022
CA/A/289/2017
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. PHILIP ILIYA 2. PHARMACIST ILIYA LABAN APPELANT(S)
And
MRS. MARIAM DANIEL RESPONDENT(S)
RATIO
THE STANDARD OF PROVING THE ALLEGATION OF ASSAULT, DECEIT AND BATTERY
The issues before the trial Court relate to deceit, assault and battery resulting to permanent loss of an amenity of life that is; an eye. Granted that criminal allegation in a civil wrong must be proved beyond reasonable doubt. See Akpunonu v Beakart (2000) 3 NSCQR 186 at 191. However, it is trite that civil cases are decided on the preponderance of evidence and unless a plaintiff’s case is so patently incredible and unreasonable a trial Court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates. See Wachukwu v. Owunwanne [2011] 14 NWLR (Pt. 1266) 1 at 36 – 37 G – C and Odofin & Ors v. Mogaji & Ors [1978] NSCC 275 at 277.
It must be noted that the decision to pursue civil tortuous remedy is entirely that of the victim. Having reported the matter to the police for the criminal acts involved, the remedy for the civil wrong is not vitiated by that reason. This issue therefore, is resolved against the Appellant. PER AMADI, J.C.A.
KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Niger State delivered by Hon. Justice Aisha A.L. Bwari on the 30th June 2016.
The brief fact of this case is that the Respondent who was the plaintiff at the lower Court is wife to the 2nd Appellant, who was the 2nd defendant at the lower Court. The 1st Appellant, who was the 1st defendant at the lower Court, is brother to the 2nd Appellant. The Respondent had moved out of their matrimonial home and lives somewhere else.
She stated in her matter at the lower Court that she was invited on phone by the 2nd Appellant to come to somewhere around the school of Nursing Minna for discussion in respect of their matrimonial issues. That upon getting to that venue she was attacked and beaten up with a belt and electric cable by the 1st Appellant while the 2nd Appellant sat in his car meters away but drove off as people came to her aid. She sustained injuries on her body and right eyes resulting in the loss of one eye from the beating and was taken to the General hospital Minna, and subsequently referred to the National Eye Center Kaduna, and will subsequently have to go to Mumbai India for the treatment of the same eyes.
Both the 1st and 2nd Appellants denied the claim of the Respondent at the lower Court on having anything to do with the injuries sustained by the Respondent, but averred rather that it was the Respondent that was violent and had prior to this matter at the lower Court, attacked and on some occasions, inflicted injuries on the 2nd Appellant and some other persons. They raised the defence of alibi.
The Respondent as plaintiff by a writ of summons dated 13th September, 2010 commenced the suit at the lower Court and by her Amended statement of claim, claimed from the Appellants as follows:-
The plaintiff avers that as a result of the beating masterminded by the defendants she suffered damages as follows:
a. Cost of treatment at Minna and Kaduna – N 100,000
b. Transportation within Minna and Kaduna – N25,000
c. Total bill for treatment at Mumbai, India – N2,508,000
d. Total – N2,633,000
e. General damages for pains and suffering – N47,492,000
NET TOTAL – N50,125,000.00
WHEREOF, the plaintiff claims from the defendants severally and jointly the sum of N50,125,000 only with substantial cost.
At the conclusion of trial, the trial Court gave judgment for the Respondent in the following terms:
Accordingly, the following reliefs are hereby granted.
Special damages of:
i. Cost of transportation – N25,000.00
ii. Cost of treatment – N29,280.00
General damages – N10,000,000.00
Total – N10,054,280.00K
Aggrieved by the judgment, the Appellant appealed against it in this appeal and by an Amended Notice of Appeal filed on 9/12/2020, the Appellant raised 5 (five) grounds of appeal as follows:-
GROUND ONE
The learned trial judge erred in law when he failed to apply the Supreme Court decision in Anambra State Environment Sanitation Authority & Anor v. Ekwenem (2009) LPELR – SC 174/2002 where the commission of crime was in issue.
GROUND TWO
The learned trial judge erred when he admitted a document (Exhibit “K”) which is computer-generated evidence that fails to satisfy the mandatory provisions of law as contained in Section 84 of the Evidence Act 2011 and acted on same.
GROUND THREE
The trial judge erred in law when he held that the 1st defendant was an agent of the 2nd defendant, vicariously liable for him and both defendants are therefore tortfeasors.
GROUND FOUR
The trial judge erred in law when he held that “PW1 who said he has never known the parties before the incident had the opportunity of having come in close contact with the plaintiff and the 1st defendant, when he subdued the 1st Defendant from further beating the plaintiff and was able to see his features and the weapon of assault as it was not yet dark by 6.30 – 7pm on the date of the incident. So also is the testimony PW2. This evidence therefore the Court finds credible cogent in fixing the 1st defendant at the science (sic) of the crime at the material time, thus demolishing the defence of alibi raised by the 1st defendant.
GROUND FIVE
The trial judge erred in law when he held that “the Court therefore finds and holds that there is credible evidence that the plaintiff was examined at the General Hospital Minna and the National Eye Centre Kaduna, and that she needs further examination and treatment at the Bambay City Eye Institute and Research Centre Mumbai India of the right eye injured as a result of the 1st defendants (sic) action the 11th April, 2010.
In his brief of argument filed on 9/12/2020, the learned counsel for the Appellant raised 3 issues for determination to thus:
1. Whether the trial Court was right when it failed to follow the principle of stare decisis and therefore neglected the decision of the Supreme Court in Anambra State Environmental Sanitation Authority & Anor v Ekwenmen (Ground 1).
2. Whether the trial Court was right when it admitted an inadmissible document which failed to satisfy the requirement of Section 84 of the Evidence Act 2011 on Certification (Ground 2).
3. Whether the trial Court was right when it held that the appellants committed the alleged crime of causing grievous bodily harm on the respondent (Grounds 3, 4 and 5).
The learned counsel for the Respondent S.O. Ogbeche Esq., in his own brief of argument filed on 29/6/2021 adopted the said 3 issues raised by counsel for the Appellant but rephrased them thus:-
1. Whether the trial Court indeed failed to follow the principle of stare decisis and hence neglected the principles of law laid down in Anambra State Environmental Sanitation Authority & Anor v Ekwenem?
2. Whether the admissibility of “Exhibit K” by the trial Court affected its decision in anyway and hence occasioned a miscarriage of justice? And finally;
3. Whether the trial Court was right when it held that the appellants committed the acts complained of by the Respondent?
I shall adopt the above 3 issues of the Appellant as mine in the resolution of this appeal.
In respect of issue one, the learned counsel for the Appellant submitted that in the said case of Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (supra) that the Standard of Proof, required when the issue of crime is involved whether in a criminal or civil matter is proof beyond reasonable doubt. Counsel submitted that in this case, there was no evidence that linked the Appellants to the crime, no statement, no extract or report from the police or investigation report, no charge sheet or any record of arraignment, therefore the trial Court erred by entertaining the matter on balance of probability when there was criminal allegation that ought to be proved beyond reasonable doubt.
The learned counsel for the Respondent on the other hand, argued that counsel for the Appellant misconstrued the decision on the said case. That the principle in that case is that a victim of a tortious action can pursue remedy in a civil suit despite the criminal acts in which case the civil wrong will be determined on the balance of probability and preponderance of evidence.
In respect of issue two that is; whether the trial Court was right when it admitted an inadmissible document which failed to satisfy the requirement of Section 84 of the Evidence Act 2011 on certification?
It was the submission of counsel for the Appellants that in any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if certain conditions have been complied with both in respect of the statement contained therein and the computer including a certification of the computer evidence. He cited Section 84(1) of the Evidence Act 2011 in support of this point. He further submitted that computer generated evidence must satisfy the mandatory provision and conditions set out in Section 84 of the Evidence Act before same is admitted in evidence and referred to in the case of Oluwarotimi Akeredolu SAN & Anor v. Rahman O. Mimiko & Ors (2013) LPELR-20532 (CA) in buttressing this point.
Learned counsel argued that the trial Court erred in law when it admitted Exhibit “K” in evidence without strict compliance to the condition precedent set down by law, despite the failure of the Respondent to satisfy compliance with the provision of Section 84 of the Evidence Act as it was irrelevant that the tendering of the document was unopposed. Counsel argued that Section 84(2) of the Evidence Act 2011 is mandatory and allows for no discretion in tendering a computer generated evidence and that this was not complied with in the instant case. He referred to the case of Loben Investment Corporative Multipurpose Society Ltd v. FRN (2019) LPELR-47325(CA) in support of his argument.
Counsel argued that the decision of the trial Court predicated on Exhibit “K” is wrong and in violation of the clear provisions of Section 84 of the Evidence Act 2011. Counsel urged this Court to resolve this issue against the Respondent. The learned counsel for the Respondent on the other hand submitted that the admissibility of Exhibit K by the trial Court did not affect its decision in anyway and hence did not occasion any miscarriage of justice. Counsel referred to Section 251 of the Evidence Act 2011 and to the case of The Military Governor Ondo State & 5 Ors v James Olagunju Kolawole & 4 Ors (2008) ALL FWLR (Pt.428) 238 AT 250.
In respect of issue three, that is; whether the trial Court was right when it held that the Appellants committed the alleged crime of causing grievous bodily harm on the respondent (Grounds 3, 4 and 5).
On this issue, learned counsel submitted that facts pleaded must be proved by credible evidence, and the burden of proof lies on the party who alleges the existences of such facts. He further submitted that assault and battery as alleged ought to have been proved by credible and convincing evidence, particularly, since the Appellants denied committing the said offence. Relying on the case of Mr. Wilson Esi v. CNPC/BGP International & Anor (2014) LPELR-22807(CA) Pg. 19, Paras. A – F, counsel argued that the Respondent cannot be entitled to damages as claimed in her statement of claim at the lower Court except proved beyond reasonable doubt the allegations been criminal in nature.
Continuing, counsel submitted that the 1st Appellant pleaded alibi which makes it pertinent for the accused person to let the prosecutor know of this at the earliest opportunity so as to establish if the alibi is true or false. He cited the case of Adekunle v. State (1989) 5 NWLR (Pt. 123) 505 Pg. 28, Paras. E- F in support of his submission. Continuing, counsel however argued that nothing was placed before the trial Court by the Respondent to substantiate the allegation that the Appellants committed the offence of assault.
He further argued that contrary to the Respondent’s claim that she reported the incident to the police who carried out an investigation, no policeman was subpoenaed by the Respondent to collaborate the statement, and no investigation report was tendered in evidence. Counsel argued further that the trial Court merely relied on speculation when it found in favour of the Respondent. Counsel urged this Court to resolve this issue against the Respondent.
In the final conclusion, learned counsel urged this Honourable Court to allow this appeal and set aside the judgment of the trial Court on the strength of the arguments submitted in the foregoing paragraphs.
COURT’S DECISION
The issues before the trial Court relate to deceit, assault and battery resulting to permanent loss of an amenity of life that is; an eye. Granted that criminal allegation in a civil wrong must be proved beyond reasonable doubt. See Akpunonu v Beakart (2000) 3 NSCQR 186 at 191. However, it is trite that civil cases are decided on the preponderance of evidence and unless a plaintiff’s case is so patently incredible and unreasonable a trial Court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates. See Wachukwu v. Owunwanne [2011] 14 NWLR (Pt. 1266) 1 at 36 – 37 G – C and Odofin & Ors v. Mogaji & Ors [1978] NSCC 275 at 277.
It must be noted that the decision to pursue civil tortuous remedy is entirely that of the victim. Having reported the matter to the police for the criminal acts involved, the remedy for the civil wrong is not vitiated by that reason. This issue therefore, is resolved against the Appellant.
Issue two deals with receiving a computer generated document in evidence without the certificate as required by Section 84(1) of the Evidence Act 2011.
Counsel submitted that the admission of Exhibit K without the mandatory requirement of Section 84(1) of the Evidence Act, the decision based on that exhibit is therefore wrong null and void.
The learned counsel for the Respondent on his own argument submitted that the admission of Exhibit K did not affect the trial Court’s decision in any manner or form, that the said exhibit has no connection at all whatsoever to the findings and decision of the trial Court. Counsel cited the case of The Military Governor of Ondo State & 5 Ors v James Olagunju Kolawole & 4 Ors (2008) ALL FWLR (Pt. 48) 238 AT 250 para E.
The said Exhibit K is an email from a hospital in Mumbai India. It was tendered to prove special damages, to show the cost that will be involved in further treatment of the Respondent in India. The Court refused that claim and described it as being speculative. Section 251 (1) of the Evidence Act 2011 is very clear to the effect that the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have been the same if such evidence had not been admitted. It is important to note that the term ‘decision’ in that section includes a judgment, order, finding or verdict.
It is obvious that there was no miscarriage of justice by admitting the said document (Exhibit K) in evidence. In fact, the issue upon which it was admitted was dismissed. In view of the foregoing, this issue is also resolved against the Appellant in favour of the Respondent.
In respect of issue 3, the learned counsel for the Appellant submitted that proof in this case ought to be proof beyond reasonable doubt as in criminal trial though the case being on civil tort. On the other hand, counsel for the Respondent referred to pages 50 to 52 of the record of Appeal in this case and submitted that the Appellants admitted beating the Respondent. Counsel further referred to the testimonies of PW1, PW2 and PW3 together with Exhibit A and submitted that the trial Court was right in giving judgment to the Respondent.
I must have to state here that issue of proof beyond reasonable doubt in civil proceeding is not of subjective standard, it does not refer to the number of witnesses or any fixed type of exhibit to be tendered. It is rather of objective standard, purely on the quality of the evidence proffered irrespective of the number of witnesses called.
The defence of the Appellants was alibi. But the parties know themselves very well. The 1st Appellant is a brother of the second Appellant and brother-in-law of the Respondent, while the 2nd Appellant was the husband of the Respondent. The parties agreed to a meeting on a phone call that evening and fixed a particular point for the meeting. The incident that gave rise to this case took place at the agreed venue of the meeting. The only point of disagreement was on who made the call. While the 1st Appellant alleged that it was the Respondent that made the call, the Respondent alleged that it was the 1st Appellant that made the call. The Respondent gave evidence which placed the Appellants at the scene. Also PW1, PW2 and PW3 gave evidence of the Appellants being at the venue or scene when this incident occurred which totally destroyed the defence of alibi of the Appellants. Therefore, the finding and holding of the appellants liable by the trial Court cannot be faulted. This issue is equally resolved in favour of Respondent.
Having resolved all the issues in favour of the Respondent, this appeal is lacking in merit and is hereby dismissed. The judgment of the lower Court delivered on 30/6/2016 is hereby affirmed. Cost of N100,000 payable by the Appellants to the Respondent is awarded.
Judgment is entered accordingly.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Kenneth Ikechukwu Amadi, (Ph.D), JCA.
I am in full agreement with the reasoning and the conclusion that the appeal is devoid of merit. I therefore dismiss the appeal. I abide by the consequential orders as made in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, KENNETH IKECHUKWU AMADI, Ph.D, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed.
I abide by all the consequential orders.
Appearances:
Jonathan G. Taidi, with him, T.M. Amaise For Appellant(s)
S.O. Ogbeche For Respondent(s)
