IN-TIME CONNECTION LIMITED V. MRS. JANET ICHIE (2019)

IN-TIME CONNECTION LIMITED V. MRS. JANET ICHIE

(2019)LCN/13144(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of April, 2009

CA/PH/79/2007

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

IN-TIME CONNECTION LIMITED Appellant(s)

AND

MRS. JANET ICHIE Respondent(s)

RATIO

COURTS: THE PRIMARY DUTY OF THE TRIAL COURTS

The law is now trite that evaluation of evidence in order to ascribe probative value to such evidence is the primary function of the trial judge who had the opportunity of hearing the witnesses and observing their demeanour: AGBI v. AUDU OGBE [2006] 11 NWLR [pt.990] 65 @ 115; FASHANU V. ADEKOYA [1974] 6 SC 83.PER EJEMBI EKO, J.C.A.

APPEAL: APPELLATE COURTS MUST REFER TO TRIAL COURTS ON ISSUES OF CREDIBILITY OF WITNESSES

Thus where the issue turns on the credibility of witnesses an appellate court which had not seen or heard the witnesses testify must defer to the trial court; particularity where the finding or the inference drawn by the trial judge is supported by credible evidence EBBA v. OGODO [1984] 1 SCNLR 372. PER EJEMBI EKO, J.C.A.

CREDIBLE EVIDENCE: MEANING

Credible evidence means evidence worthy of belief and for evidence to be credible it should be natural, reasonable and probable in view of the entire circumstance of the case: AGBI v. AUDU OGBE [supra]@ 116.PER EJEMBI EKO, J.C.A.

APPEAL: WHEN THE APPELLATE COURTS WILL INTERFERE IN THE EVALUATION OF EVIDENCE

EVIDENCE: EVALUATION OF EVIDENCE: DEFINITION

Evaluation of evidence means the appraisal of the totality of all the evidential materials proffered by the parties, MOGAJI v. ODOFIN [1978] 4 SC 91. In discharging this duty the trial court must place all evidence with probative value on each side on an imaginary scale to see on which side the scale tilts: ILORI v. TELLA [2006] 18 NWLR [pt.10.11] 267 @ 288.PER EJEMBI EKO, J.C.A.

FAILURE OF A DEBTOR TO REPLY A DEMAND LETTER LEADS TO A PRESUMPTION OF ADMISSION BE CONDUCT
The law espoused in JOE IGA V. CHIEF EZEKIEL AMAKRI [1976] 11 SC 1; GWANI v. EBULE [1990] 5 NWLR [pt.149] 201; VASWANI v. JOHNSON [2000] 11 NWLR [pt.679] 582 and recently applied by this court in the unreported OIL GAS EXPORT FREE ZONE AUTHORITY V. DR. T.C. OSANAKPO [CA/PH/366/200S of 20th January, 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.PER EJEMBI EKO, J.C.A.

EVIDENCE: INCONSISTENCY IN EVIDENCE GIVEN BY WITNESSES , WHAT SHOULD THE COURT DO

The law is that where, without explanation, there is inconsistency in evidence of witnesses called by a party it is not for the court to pick and choose which of the witnesses to believe; it can not accredit one witness and discredit the other in the circumstance: BOY MUKA v. STATE [1976] 10 SC 305; ASANYA v STATE [1991] 4 SCNJ 1@ 10, 3.PER EJEMBI EKO, J.C.A.

DEBT RECOVERY: THE DEBTOR’S OBLIGATION TO PAY DEBT MUST STRICTLY PROVED BY EVIDENCE

The defendant’s obligation to pay interest on a debt must be strictly proved by evidence before the plaintiff could be entitled to it. Sec TNTERNATIONAL TRUST BANK PLC v. KAUTAL HAIRU COMPANY LTD [2006] 3 NWLR [pt.968] 443 at 555 – 556. The order dismissing it can not be said to have occasioned a substantial miscarriage of justice.PER EJEMBI EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Abia State High Court sitting at Aba in the suit No. A/78/2000 delivered on 30th June, 2006. The suit of the Appellant, as the Plaintiff, and the counter claim of the Defendant, now Respondent, were all dismissed. The Appellant, aggrieved by the decision, lodged his appeal against the same. The notice of appeal filed on 8th September, 2006 [pages 120 – 123 of the Record] has the following four [4] grounds of appeal [shorn of their particulars]:
1. The learned trial Judge erred in law by wrongfully evaluating the evidence of the parties
2. The learned trial Judge misdirected herself in law when she held that section 149 [d] of the Evidence Act applied in a situation where she said that the plaintiff did not call some particular witnesses.
3. The decision of the learned trial judge was perverse.
4. That the judgment is against the weight of evidence.
In nutshell the facts of the case as pleaded by the parties are: that the Appellant, a limited liability company managed by the PW.1, as plaintiff, claims that on 11th May 1995 it entered into a contract of sale of some fabric with the Defendant/Respondent whereby it sold and delivered goods worth N1,175,400.00 to the Defendant/Respondent. The Defendant/Respondent made a deposit of N222,300.00 and agreed to pay the balance installmentally on or before 31st December, 1996. It was averred that the Defendant/Respondent paid a total of N807,300.00 in nine [9] installments including the deposit of N222,300.00 leaving an outstanding balance of N368, 100.00 which the Defendant/Respondent had failed or refused to pay despite repeated demands. On the writ of summons the Appellants, as plaintiff, claimed the said, sum of N3,368,100.00 allegedly outstanding plus interest at 20% thereon “from January 1997 until the judgment debt is paid”. The Appellant issued to the Respondent cash/credit sales invoice No. 603 of 11.5.95 on which duplicate some entries indicating the various payments were endorsed at the back. The duplicate invoice was tendered as Exhibit B while the endorsements at the back were admitted in evidence as Exhibit C.
The Respondent, as the defendant, did not deny Exhibits B and C. Her contention was that she made three other payments totaling N410,300.00 in addition to the sum of N807,300.00 reflected in Exhibit C; that she had thus paid a total of N1,217,300.00 to the Plaintiff/Appellant and that by that she had over paid the Plaintiff/Appellant by N41,900.00 [I guess by correct arithmetic the figure should be N42,200.00 and not N41,900.00]. This of course was vehemently denied by the Plaintiff/Appellant. The Defendant/Respondent had also asserted that she returned 100 rolls of the fabrics valued at N240,000.00 to the Plaintiff/Appellant and incurred a bill of N2,000.00 on transportation of the 10 rolls of fabrics to the Plaintiff/Appellant.
It appears the Defendant/Respondent amended her defence twice. In the first amended statement of defence filed on 11.4.2001 her counter-claim was for
a. An account of the quantity of goods retrieved by the plaintiff
b. Refund of excess money paid to the plaintiff by defendant    N41,900.00
c. Cost of 10 rolls goods returned to the plaintiff     N240,000.00
d. Cost of transportation 10 rolls of goods to the plaintiff    N2,000.00
TOTAL    N283,900,00
A further Amended statement of defence and counter-claim in pursuance of an order allegedly made on 29th November, 2004 was subsequently filed which altered the counter claim. It now reads-
8. Wherefore the defendant counter-claims against the plaintiff the sum of N208,900.00 being excess amount due to her over the transaction.
a. Total amount paid by the defendant to the plaintiff   N1, 142,300.00
b. Cost of goods retrieved from defendant     N240,000.00
c. Transport cost                   N2,000.00
N1,384,300.00
Less total cost of goods sold to defendant   N175, 400.00
Balance       N208, 900.00

Thus at the trial the Plaintiff/Appellant’s burden was to prove that the Defendant/Respondent was indebted to it in the sum of N368, 100.00 plus interest and in addition to refute the counter-claim. The onus on the Defendant/Respondent was not only to refute the claim of the plaintiff against her, but also to establish her counter-claim.
Only the PW.1, the managing Director of the plaintiff who incidentally was an estranged son-in-law of the Defendant/Respondent testified and put in some number of documents. The most important of this documentary evidence was the duplicate cash/sales invoice of the plaintiff by which the goods were supplied to the Defendant/Respondent. It is Exhibit B. Some transactions reflected or endorsed at the back of Exhibit B were admitted in evidence as Exhibit C. The invoice is dated 11th May, 1995. The defendant, as DW.1, tendered the original copy of Exhibit B with her as Exhibit F. The reverse side of Exhibit F is Exhibit G.
The PW.1’s evidence is that all the 8 payments made to the Plaintiff/Appellant by the Defendant/Respondent were recorded in Exhibit C. At page 43 of the Record he stated –
Exhibit B is the document evidencing this transaction. What I tendered before this court is my own copy of Exhibit B. Defendant has the original of Exhibit B. Yes the back of Exhibit B, which is Exhibit C are the payments I said defendant made in respect of the transaction. The entries on Exhibit C were the company’s entries.
Each of the staff signs against any money he or she receives. The defendant did not bother to sign any entries there. We did not issue any receipts to the defendant with respect to the payments she made. We did not transfer the same entries to the defendant’s copy of Exhibit C. Defendant did not make more payments than we have in Exhibit C
Neither the defendant, DW.1, nor any of her workers signed Exhibit C. Similarly neither PW.1 nor any of his subordinate staff in the employment of the plaintiff signed Exhibit G or Exhibit L from where entries in Exhibit G were transferred.
There is no dispute about the figures in Exhibit C, which were expressly admitted. The dispute is that the transactions in Exhibit C are not exhaustive. The defendant claims she made three other payments reflected in Exhibits L and G that are not reflected In Exhibit c. The total N410,000. 00 allegedly paid are as follows –
i. N210,000.00 paid on 28th April, 1995
ii. N150,000.00 paid on 15th June, 1995
iii. N50,000.00 paid on 31st July, 1995
The DW.1 said she “personally made the three payments to the plaintiff” herself. Therefore, on this disputed N410, 000.00 the DW.2’s evidence is not relevant. Between the PW.1 and DW.1 and the documentary evidence they predicated their evidence on it is oath to oath, depending to a large extent which of the two the trial court believed. The sole issue in this appeal as formulated by the appellant is –
Whether upon a calm view and proper consideration of the pleadings and evidence the learned Trial Judge was right and came to a proper conclusion when she held that the plaintiff failed to prove that it was owed the amount it claimed from the defendant in respect of the contract of sale of goods to the defendant.
Put in a more condensed and succinct manner, as the Respondent did at page 4 of the Respondent’s Brief, the one issue that calls for determination in this appeal is –
Whether upon a calm view of the pleadings and credible evidence before the court, the plaintiff was entitled to judgment at the trial court.
The counter-claim, as I earlier stated, was dismissed like the plaintiff’s claim. There is no appeal against the dismissal of the counter-claim. Only the plaintiff has appealed. The appeal turns on the evaluation and the proper use by the trial court of the evidence legally before it.

On the sole issue the Appellant’s counsel submitted that there was no dispute about the payments in Exhibits B and C, and that on Respondent’s assertion that she made further payments outside the admitted payments in Exhibits B and C the onus of proving the further payments lies on the Respondent in view of ONYENGE v.
EBERE [2004] 13 NWLR [pt.889] 20 @ 38 A- C. And that the learned trial judge was wrong to have thrown the burden of proving that assertion on the Appellant by invoking section 149 [d) Evidence Act and holding that the Appellant withheld the witnesses mentioned in the evidence of PW.1. Counsel submitted that since the parties were ad idem in both pleadings and evidence that the date of the contract in Exhibit B [also Exhibit F] was 11th May, 1995 and that the first payment or installment of N222,230.00 was made that same day, the learned trial judge was wrong to have accepted DW.1’s evidence that the alleged payment of N210,000.00 on 28th April, 1995 reflected on Exhibits L and G was in furtherance of the contract in Exhibit B. Counsel further submitted that the mere fact that the fact of the alleged payments of three further installments on 28.4.95, 15.6.95 and 31.7.97 totaling N410,000.00 were admittedly transferred from Exhibit L to Exhibit G shows that the Respondent was aware of Exhibit C and was trying to counter it by making Exhibit G. Counsel drew attention to Appellant’s letter of demand, Exhibit D and submitted that since in replying Exhibit D the Respondent in Exhibit E did not raise the issue of the three payments in addition to those in Exhibit C, it shows that the defence of three extra installments was a mere after thought; and that the learned trial judge rationalizing that the Respondent failed to do that because she was not a lawyer is untenable. Finally it was submitted that the learned trial judge did not properly evaluate the evidence, that she shut her eyes to the obvious and wrongly took into account the irrelevant fact of PW.1 and DW.1 being in-laws. Appellant’s counsel summarized in paragraph 4 of his brief, in urging that the appeal be allowed thus: –
i. that the learned trial judge did not properly evaluate the evidence of the parties.
ii. That the learned trial judge wrongly applied section 149 [d] of Evidence Act.
iii. That the decision is perverse and against the weight of evidence.
For the Respondent, on this lone issue, it was submitted that appellate court does not lightly interfere with findings of facts on authority of IYANDA V. LANIBA II [2002] 8 NWLR [pt.801] 267; OSOLU v. OSOLU [2003] II NWLR [pt.832] 608. That specific finding of fact that entries in Exhibit L were uncontroverted should remain undisturbed since the law is that specific findings not appealed remain undisturbed. Respondent’s counsel cited a number of authorities: OSHODI & ORS v. EYIFUNMI [2000] 13 NWLR [pt.684] 298; UDOH TRADING CO. LTD v ABERE [2001] 11 NWLR [pt.723] 114. Still on specific findings of fact Respondent’s counsel submitted on authority of AJIBONA v. KOLAWOLE [1996] 10 NWLR [pt.476] 22 and OSOLU v. OSOLU [supra] that omnibus ground of appeal is not proper pedestals from which to mount attack against specific findings. Further on Exhibit L it was submitted that since defence witnesses were not cross-examined on this very important document the learned trial judge was entitled to act on the unchallenged evidence, as she did. On the invocation of Section 149 [d] of Evidence Act Respondent’s counsel submitted that from the cross-examination of PW.1 it was clear that PW.1’s evidence needed corroboration, and that since the Appellant failed to produce those two staff working under PW.1 the learned trial judge can not be faulted in holding that the Appellant did not prove his case.

In the instant appeal the complaint is not only about evaluation of evidence but also that the judgment, on the omnibus ground, is against the weight of evidence. The complaint implies that the judgment of the trial court can not be supported by the weight of evidence adduced by the successful party and that the inference it drew based on the evidence it accepted can not be justified: OSOLU v. OSOLU [2003] 11 NWLR [pt.832] 608. Similarly a complaint that the trial court did not evaluate or properly evaluate the evidence before coming to its conclusion implies that a miscarriage of justice has been caused the party complaining and that the conclusion reached by the trial court can be faulted on that ground. If the exercise of its judicial function of evaluating evidence by the trial court is successfully faulted the appellate court can on that ground interfere in the findings or conclusion of the trial: OSOLU v. OSOLU [supra).
At the risk of repetition, there is no dispute about the transactions in Exhibits B and C. The Respondent expressly admitted in paragraph 8 of both amended and further amended statements of defence the payments totaling N807, 300.00 as alleged in the Appellant’s statement of claim. Accordingly, facts in Exhibit C need no further proof. Issues were joined, however,” on the additional payments totaling N410,000.00 and the alleged return of 10 rolls of fabrics valued at N240,000.00 to the Appellant by the Respondent.
The Respondent, in paragraphs 8 and 16 of the amended statement of defence and the further amended statement of defence, aver that she paid on 28.4.95 – N210,000.00; on 15.6.95 – N150,000.00 and on 31.7.95 N50,000.00 in addition and that in 1996 she returned 10 rolls of fabrics worth N240, 000.00 to the Appellant. These are denied by the Appellant. By dint of sections 135 – 137 of the Evidence Act the burden of proving these assertions lies squarely on the Respondent, and not on the Appellant as the plaintiff.
The law is now trite that evaluation of evidence in order to ascribe probative value to such evidence is the primary function of the trial judge who had the opportunity of hearing the witnesses and observing their demeanour: AGBI v. AUDU OGBE [2006] 11 NWLR [pt.990] 65 @ 115; FASHANU V. ADEKOYA [1974] 6 SC 83. Thus where the issue turns on the credibility of witnesses an appellate court which had not seen or heard the witnesses testify must defer to the trial court; particularity where the finding or the inference drawn by the trial judge is supported by credible evidence EBBA v. OGODO [1984] 1 SCNLR 372. Credible evidence means evidence worthy of belief and for evidence to be credible it should be natural, reasonable and probable in view of the entire circumstance of the case: AGBI v. AUDU OGBE [supra]@ 116.

Ordinarily, an appellant court has no business in embarking on exercise of evaluating evidence because of its limitation of not seeing or hearing witnesses. Where however, the complaint as in this case, is against non evaluation or improper evaluation or appraisal of all the evidence before the trial court, an appellate court is in as a good position as the trial court to do its own evaluation, in so far as the exercise does not involve credibility of witnesses and the exercise would be confined to drawing only inferences and making findings from admitted or established facts: ALABI v. OLOYA [2001] 6 NWLR [pt. 708] 37 @ 43 – 44; MABOHUNJE v. ADEWUNMI [2006] 11 NWLR [pt.991] 224 @ 224; KIMDEY v. MILITARY GOVERNOR, GONGOLA [1988] 2 NWLR [pt.77] 445. The appellant who alleges that the trial court did not evaluate or properly evaluate the evidence before it is duty bound to specify the evidence which the trial court failed to evaluate: EJOH v. WILCOX [2003] 13 NWLR [pt.838] 488; ONWUDINJO v. DIMOBI [2006]1 NWLR [pt.961] 318 @ 334.
In the instant appeal, one of the complaints of the Appellant is that since the parties in both their pleadings and evidence are ad idem that exhibit B [also Exhibit F] is the contract document, that the commencement date of the transaction was 11th May, 1995 and that the first payment or installment made by the Respondent [DW.1] was N222, 300.00 the trial court was therefore wrong in finding that the alleged payment of N210,000.00 on 28th April, 1995 as reflected in Exhibit L was in furtherance of the transaction in Exhibit B. At page 117 of the Record the learned trial judge found that-
Payments made by DW.1 from her evidence and that of DW.2 were payments transferred to Exhibit G made before the action which entries I agree are not challenged by plaintiff. The fact of DW.1 paying plaintiff on various dates as pleaded in paragraph 8 of the Further Amended statement of Defence were not controverted. I accept the defendant’s counsel’s submission that defendant was not cross examined on the exercise book, Exhibit L. I therefore accept the evidence of DW.1 and DW.2 as against that of PW.1.
This finding as regards whether the N210,000.00 paid on 28th April, 1995 was in furtherance of the transaction in Exhibit B, did not take into consideration the admission of the respondent [DW.1] under cross-examination at page 60 of the Record that the first payment she made to the Appellant was N222,300.00. Since the alleged payment of N210.000.00 on 28th April, 1995 vide Exhibit L preceded this N222,300.00 paid on 11th May, 1995 which on DW.1’s admission was the first payment in the transaction, it will be unreasonable to infer and hold, as the trial court seemingly did, that the payment was in furtherance of the transaction in Exhibit B. Such finding is unreasonable and unwarranted having regard to the totality of the evidence, particularly the evidence of the Respondent [DW.1] herself. Again, it was DW.1’s assertion that the payment of N210,000.00 on 28th April, 1995 was in furtherance of Exhibit B executed on 11th May, 1995 it is incumbent on her to prove her assertion. The PW.1 denied the payment. She must prove her assertion otherwise it logical to conclude that what is alleged without proof can be denied without proof. Accordingly, it was wrong for the trial court to cast that burden on the defence to controvert an assertion that was not proved.
It was also the case of the Respondent that she paid herself the sums of N150,000.00 on 15th June, 1995 and N50,000.00 on 31st July, 1995 to the Plaintiff/Appellant. This N200,000.00 is part of the N410,000.00 the trial court held at page 117 of the Record had been proved and that the entries about them in Exhibit G, which were transferred from Exhibit L were not challenged and that the evidence of DW.1 and DW.2 on the payment were not controverted. On this N410,000.00, from the evidence of DW.1, the evidence of DW.2 is completely irrelevant. In their final address at the trial court Appellant’s counsel submitted that the alleged payment of these sums totaling N410,000.00, as averred by the Respondent, was a mere after thought and invited the trial court to so hold. [see pages 94 -96 of the Record]. On this it was further submitted that the Appellant’s letter of demand, Exhibit D, received by the Respondent, listed all payments as in Exhibit C; and that in replying Exhibit D, the Respondent in Exhibit E did not state that she made additional payments totaling N410,000.00. The trial court made no finding in this submission in the judgment. Appellant’s counsel, again before us raised this same issue.
Evaluation of evidence means the appraisal of the totality of all the evidential materials proffered by the parties, MOGAJI v. ODOFIN [1978] 4 SC 91. In discharging this duty the trial court must place all evidence with probative value on each side on an imaginary scale to see on which side the scale tilts: ILORI v. TELLA [2006] 18 NWLR [pt.10.11] 267 @ 288. The trial court in this case did not even consider the submissions of Appellant’s counsel on this viz-a-viz Exhibits D of 4th February, 2000 and Exhibit E of 9th February 2000. The Respondent seems to concede this point. In the Respondent’s Brief there was no reaction to this point.
The law espoused in JOE IGA V. CHIEF EZEKIEL AMAKRI [1976] 11 SC 1; GWANI v. EBULE [1990] 5 NWLR [pt.149] 201; VASWANI v. JOHNSON [2000] 11 NWLR [pt.679] 582 and recently applied by this court in the unreported OIL GAS EXPORT FREE ZONE AUTHORITY V. DR. T.C. OSANAKPO [CA/PH/366/200S of 20th January, 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct. I should think that in reacting to Exhibit D, as the Respondent did in Exhibit E, she ought reasonably to have stated in Exhibit E not only that she was no longer owing the Appellant on Exhibit B, but also that, she made payments subsequent to Exhibit C which had liquidated the sum claimed or demanded as debt from her. It is a rule of common sense in ordinary normal business transaction. The Respondent is now suggesting that in 1996 she not only over paid the Appellant by over N41,000.00; she in addition returned goods worth N240,000.00 to the Appellant: And in 2000 she forgot to mention these in Exhibit E as a rebuff to the appellant’s audacity, if at all, in Exhibit D.
When it is borne in mind that entries in Exhibits G and L, particularly as regards the disputed sums amounting in aggregate to N410,000.00 were the ipsit dixit of the DW.1 which are not admitted by the Appellant, unlike Exhibit C, it would have been prudent on the part of the trial court to be cautious about Exhibit L. The need for caution becomes more compelling with the DW.1 admitting that the first installment she paid on 11th May, 1995 in pursuance of Exhibit B was N222,300.00. The evidence renders suspect the evidence of DW.1, anchored on Exhibits G and L, that N210,000.00 paid on 28th April, 1995 thirteen [13] days before the transaction in Exhibit B was in pursuance of Exhibit B. The evidence becomes all the more suspect with the Respondent in Exhibit E made in 2000 being silent on the three payments totaling N410,000.00 allegedly made on diverse dates to offset the Respondent’s indebtedness to the Appellant. Without proper evaluation I am of the firm view that the trial court’s holding that Respondent had paid N410,000.00on diverse dates to the Appellant is unreasonable. The finding can not be supported having regard to the totality of the evidence before the trial court. The essence of evaluation is the court demonstrating publicly and in a transparent manner how it came to conclusion or finding on a particular point in dispute. Anything short of that public demonstration will occasion substantial miscarriage of justice and will render the decision liable to be set aside.
From the tone of the judgment the trial court believed in no small way the evidence of DW.2 against that of PW.1. It held that DW.2’s evidence provided corroboration to DW.1’s evidence in every materia particular. As I earlier stated DW.2, in view of DW.1’s evidence, gave no useful or credible evidence on the payment of N410, 000.00 on three diverse occasions to the Appellant or PW.1. He testified further that he:
Personally made payments to PW.1 in this transaction – – – I made payments of N100,000.00 twice to PW.1 in 1996.

The undisputed Exhibit C shows that N100,000.00 was paid only once in 1996, on 4th July, 1996, and that N110,000.00 was paid on 30th January, 1996. The DW.2 seemed to have a slant for exaggeration, which should put the trial court on guard about his evidence. While at page 60 of the Record and contrary to her pleading, the DW.1 testified that “the goods [she] sent back to PW.1 was N200,000.00” the DW.2, on the other hand, at page 69 of the Record, was on oath saying that he sent back ten rolls worth N240,000.00 to the PW.1. The trial court, on this point was thus left to pick and choose which of the witnesses to believe. The law is that where, without explanation, there is inconsistency in evidence of witnesses called by a party it is not for the court to pick and choose which of the witnesses to believe; it can not accredit one witness and discredit the other in the circumstance: BOY MUKA v. STATE [1976] 10 SC 305; ASANYA v STATE [1991] 4 SCNJ 1@ 10, 30.

The trial court did not do proper evaluation of the totality of the evidence of the parties before it affirmed the defence of the Respondent and dismissed the Appellant’s claims. Since the Appellant had established that out of N175,400.00 the Respondent had paid N807,300.00 leaving outstanding balance of N368,100.00 in his favour, the onus of raising effective defence to negate that claim was squarely on the Respondent to discharge by credible evidence. As I earlier demonstrated the Respondent had put no effective defence to the Appellant’s claim of N368, 100.00 to enable the trial court deny the Appellant that claim. I allow the appeal on the sole issue. The order dismissing the Appellant’s claim of N368,100.00 is hereby set aside and in its place I hereby award the said sum of N368,100.00 to the Appellant. That shall be the order of the trial court.

The claim of 20% interest on the sum of N368, 100.00 from January 1997 until judgment was not made out. At the trial the pw.1 not only did not prove the Appellant’s entitlement to that interest, he had unilaterally hiked the interest to “25% on that debt because of the length of time it has taken to complete the transaction”. Interest is contractual or statutory, appellant proved neither to warrant his entitlement to it. The duty of every court of law is to render to everyone according to his proven claim, and nothing more. It can not give to a party a relief he has proved. See AKAPO v. HAKEEM-HABEEB [1992] 6 NWLR [pt.217] 266; HARUNA v. MODIBO [2004] 16 NWLR [pt. 900] 247 at 564. The defendant’s obligation to pay interest on a debt must be strictly proved by evidence before the plaintiff could be entitled to it. Sec TNTERNATIONAL TRUST BANK PLC v. KAUTAL HAIRU COMPANY LTD [2006] 3 NWLR [pt.968] 443 at 555 – 556. The order dismissing it can not be said to have occasioned a substantial miscarriage of justice.
Costs assessed at N30,000.00 are hereby ordered in favour of the Appellant against the Respondent.
There is therefore merit in the appeal by the Appellant against the decision of the High Court dismissing its claim. In the result, I allow the appeal in all the terms of the lead judgment and for all the reasons so ably set out therein.

M. L. GARBA, J.C.A.: The single issue submitted for determination in the appeal has been fully considered arid resolved in line with established principles of law by my learned brother EKO, JCA in the lead judgment which I read, before today. From the record of the appeal, the High Court did not properly assess or evaluate the totality of the evidence adduced by the parties, particularly by the Appellant before it dismissed his claims.
Pursuant to Section 15, CAA, 2004 and Order 6 Rule 2 [1] of the CAR 2007, this court has the full jurisdiction and power of the High Court over the case and therefore in as good a position, to make a proper evaluation of the evidence in order to arrive at findings that are correctly borne out by such evidence. AJAYI v. MILITARY ADMINISTRATOR ONDO STATE [1997] 5 NWLR [504], HAYES v. HAYES [2000] 3 NWLR [648] 276.
I agree with the lead judgment that the evidence adduced by Appellant through PW.1 clearly established its claim on the balance of probabilities as required in civil matters by the law.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Ejembi Eko, JCA just delivered. He has exhaustively considered and resolved the sole issue for determination in this appeal. I agree with his reasoning and conclusion that the appeal is meritorious and should be allowed. I hereby allow it and award costs of N30,000.00 in favour of the respondent.

Appearances

Kelenna Ogbonna, Esq. holds brief of Chief J. N. OgbonnaFor Appellant

AND

A. O. Okpallah Esq. with C. C. Ichie [Mrs.]For Respondent