ITOMO EMORI EMORI V. MR. EFOLI ESUKU
(2012)LCN/5811(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/C/169/2010
RATIO
CONTRACT: MEANING AND NATURE OF A CONTRACT
A contract may be defined as a legally binding agreement between two or more persons by which, rights, are acquired by one party in return for acts or forbearances on the part of the other. Orient Bank (Nig.) v. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 page 37; SGB (Nig.) Ltd. v. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR Pt.548 page 168.
An agreement or contract is a bilateral affair, which needs the ad idem of the parties. Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 page 470; Olawofoyoku v. A.G. Oyo State (1990) 2 NWLR Pt.132 page 369. These cases held that:
There are five important factors that must be present in a valid contract. These are offer, acceptance, consideration, intention to create legal relationship, and capacity to contract. All the five ingredients must be present before a valid contract can exist in law. A contract cannot be formed if any of the ingredients is absent. Okubule v. Oyagbola (1990) 4 NWLR (pt 147) 723, Orient Bank (Nig.) Plc Bilante Int’l Ltd (1997) 8 NWLR (pt 515) 97. PER UZO I. NDUKWE-ANYANWU, J.C.A
CONTRACT: MEANING OF A BINDING CONTRACT
A plethora of cases have enunciated the real meaning of a binding contract and held that;
It is a firmly established law that before any contract or agreement can be said to have come into existence, in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. Odutola vs. Papersack (Nig) Ltd (2006) 18 NWLR (pt 1012) 470, Sona Brew. plc v. peters (2005) 1 NWLR (pt 908) 478. PER UZO I. NDUKWE-ANYANWU, J.C.A
CONTRACT: ATTITUDE OF COURT TOWARDS CONTRACT MADE BY PARTIES
Suffice it to say that the Courts always respect the sanctity of mutually agreed terms reached by parties. Sona Breweries Plc v. Peters (supra) Owoniboys Technical Services Ltd. v. UBN Ltd. (2003) 15 NWLR Pt.844 page 545; S.E. Co. Ltd. v. NBCI (2006) 7 NWLR Pt.978 page 201. Courts do not make contracts for parties but it is the Courts duty to contrive the surrounding circumstances including written and oral statements so as to effect the intention of the parties Omega Bank (Nig) plc vs. O.B.C. Ltd (2005) 8 NWLR pt 928. PER UZO I. NDUKWE-ANYANWU, J.C.A
PLEADINGS: PURPOSE OF AMENDING PLEADINGS
However an amendment is simply the correction of an error committed in any process, pleadings or proceedings at law or in Equity. The main purposes of amending pleadings are to cure all discernible defects in the pleading. Eqwa V. Eqwa (2007) 1 NWLR pt 1014 pg 71, Bogban v. Diwhre (2005) 16 NWLR pt 951 pg 274, Lacjuro v. Toku (1992) 2 NWLR pt 223 pg 278, Diko vs. Ibadan South West L.G. (1997) 2 NWLR pt 486 pg 235 Alstom SA v. Sanaki (2000) 10-11 pg 49. An amendment may also be, to subtract or add to a process. PER UZO I. NDUKWE-ANYANWU, J.C.A
EVIDENCE: PRINCIPLES GUIDING THE TRIAL COURTS IN THE EVALUATION OF EVIDENCE
In the evaluation of evidence, the trial courts are guided by the following principles; namely
(a) whether the evidence is admissible;
(b) whether the evidence is relevant;
(c) whether the evidence is credible;
(d) whether the evidence is conclusion and
(e) Whether the evidence is more probable then that given by the other party. Mogaji v. Odofin (1978) 4 SC pg 91, Akand Industries Ltd. v. Olubode (2004) 4 NWLR Pt 862 pg 1. PER UZO I. NDUKWE-ANYANWU, J.C.A
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
UZO I. NPUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
ITOMO EMORI EMORIAppellant(s)
AND
MR. EFOLI ESUKURespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of cross River State sitting at Akamkpa. The Appellant as plaintiff filed a suit against the defendant now Respondent and claimed as per the writ. The plaintiff’s claim against the defendant is for the sum of N13, 104,000.00 being special and general damages for trespass.
Particulars of special damages
I. 91/2 drums (93.20) litres rubbers) of palm Oil belonging to the plaintiff; N279, 000.00
II.30 tons of palm fruits belonging to the plaintiff. N450, 000.00
III 250 head pans of palm fruits belonging to Mr Oruk Egbai; N150, 000.00
Michael Sampson Etukudo & Anor
V.
Imo James Udoakagha
IV. 15 tons of palm fruits belonging to Hon. Mary James Akpe N225, 000.00
V. Loss of profits N1, 000,000.00
VI. Psychological trauma suffered N1, 000,000.00
In response the Respondent in his defence filed a statement of defence which was later amended. The Respondent filed his amended statement of defence with his counter-claim. In it the Respondent counter-claimed as follows:
“1. By way of counter-claim the defendant repeats paragraphs 1-14 of the statement of Defence.
2. WHEREOF the Defendant claim against the plaintiff jointly and severally the sum of N8, 555,500 (eight million Five hundred and fifty five thousand five hundred).”
In a nutshell, the Respondent in March 2008 approached the Appellant with proposal that he would bring 10 tons of palm fruits of which the Appellant would mill and deliver 65 (20 litres) rubber of palm oil, and the appellant agreed. By 20th May, 2009 the Respondent had deposited a total of 55 metric tons of palm fruits and was expecting 357 (20 litres) rubbers of palm oil as agreed by both parties. After, the Appellant had milled up to 217 (20 litres) rubber of palm oil, the Respondent told the Appellant that because of the rains, on the palm fruit, the quality of oil it would mill would not be up to the standard he required. He then instructed the Appellant to mill and sell the oil and use the money to buy fresh palm fruits. This was to improve the quality of the oil.
On 28th May, 2009, the appellant claimed that the respondent now redirected that he sell the oil milled, mill the remaining fruits, sell the oil and give the respondent cash. The Appellant claimed that before he could come back from a church programme he went to, the Respondent and his thugs had broken and entered into his mill carting away, all the oil, the remainder of his palm fruits and palm fruits belonging to other people.
However the Respondent’s story is not very different but he claimed that the appellant delayed in the milling of the fruits and sold 30 drums of the oil out of 45 drums. The Respondent as defendant had counter chimed against the Appellant for N8, 555, 5000.00 Eight million, five hundred and fifty- five thousand, five hundred naira only. The learned trial Judge after a full trial dismissed the Appellant’s claims and granted some of the Respondent’s counter claims.
Being dissatisfied, the appellant filed a notice and 12 rounds of Appeal. The Appellant formulated 7 issues for determination as follows:
“1. Whether it was proper for the trial judge to grant reliefs not before him in that the reliefs were excluded and expunged by the amendment of the counter-claimant’s pleadings.
2. Whether the plaintiff/appellant did establish a case of trespass to chattels against the defendant/respondent and if he did what quantum of damages was he entitled to upon the evidence on record.
3. Whether the deposit by the defendant/respondent of palm nuts with the plaintiff/appellant for milling does for any reason justify the use by the defendant/respondent of primitive and belligerent force on the plaintiff/appellant’s business premises and chattels.
4. If as held by the Court below, by the conduct of parties there was no intention to create legal relation in the palm nuts milling contract between the parties, whether any of the parties had any contractually enforceable right under it.
5. Whether the learned trial Judge was right in treating the relationship between the Parties as a supply contract and in making awards against the appellant for breach of contract.
6. Whether the judgment appealed from which strayed away from the case before the Court and failed to properly evaluate the evidence of the plaintiff/appellant can allowed to stand.
7. The evidence on the record weighed on an imaginary scale, whether the judgment appealed against sustainable.”
The Respondent filed his Respondent’s brief on 30th June, 2011 but deemed properly filed and served on 13th March, 2012 and formulated 2 issues for determination as follows:
1. Whether from a calm view of the pleading, evidence and exhibits, the learned trial Judge rightly dismissed the Appellant’s claim.
2. Whether the learned trial judge was right in granting the Respondent’s counter claim in Parts.
The 7 issues articulated by the Appellant are not tailored to the real issues in controversy in this appeal. See Nwosu v. Imo State Environmental sanitation Authority (1990) 2 NWLR Pt.155 page 688-
General, a court ought to confine itself to the issues raised before it by the parties in the determination of matters. However, where the issues raised or formulated by the parties before a court are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute between the parties, the court would be entitled to distill such or other issues from the grounds of appeal filed. In such a situation the Court of Appeal has the power and discretion to formulate issues from the grounds of appeal, which will determine the vital question between the Parties.
Where issues formulated by an appellate court are derived from the grounds of appeal and are addressed by the counsel in their briefs of argument, the need for the court to call for address by the counsel to the parties on the issues formulation by the court becomes unnecessary.
I have compressed these 7 issues to three issues which would adequately dispose of this appeal as follows:
1. Was there a binding contract for the milling of palm fruits if so was there a breach by either of the parties that would entitle him to damages?
2. Whether the appellant did establish a case of trespass to chattels against the respondent.
3. Whether the Judge properly evaluated the evidence placed before it in reaching its judgment.
ISSUE 1:
The Respondent brought a total of 55 tons of Palm fruits from encl of March, 2008 to May 20th 2008 upon the understanding between the parties. The Respondent was therefore expecting a total of 357 of (20 litre) Rubbers of palm oil. By 28th May, 2008, the Appellant had milled about 217 (20 litre) Rubbers of palm oil. The Respondent on 28th May, 2008, went to the Appellant’s mill and removed, all the oil and palm fruits he found in the mill. Both parties are ad idem on these facts.
From the foregoing narration can one say that there was a binding Contract between the parties capable of enforcement?
A contract may be defined as a legally binding agreement between two or more persons by which, rights, are acquired by one party in return for acts or forbearances on the part of the other. Orient Bank (Nig.) v. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 page 37; SGB (Nig.) Ltd. v. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR Pt.548 page 168.
An agreement or contract is a bilateral affair, which needs the ad idem of the parties. Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 page 470; Olawofoyoku v. A.G. Oyo State (1990) 2 NWLR Pt.132 page 369. These cases held that:
There are five important factors that must be present in a valid contract. These are offer, acceptance, consideration, intention to create legal relationship, and capacity to contract. All the five ingredients must be present before a valid contract can exist in law. A contract cannot be formed if any of the ingredients is absent.
Okubule v. Oyagbola (1990) 4 NWLR (pt 147) 723, Orient Bank (Nig.) Plc Bilante Int’l Ltd (1997) 8 NWLR (pt 515) 97.
A plethora of cases have enunciated the real meaning of a binding contract and held that;
It is a firmly established law that before any contract or agreement can be said to have come into existence, in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. Odutola vs. Papersack (Nig) Ltd (2006) 18 NWLR (pt 1012) 470, Sona Brew. plc v. peters (2005) 1 NWLR (pt 908) 478.
In the instant case, the Respondent delivered 55 tons of palm fruits to the Appellant to mill for him and he accepted. Infact, before the delivery of the 55 tons of palm fruits, the respondent and the Appellant have reached an agreement about the number of (20 litre) Rubber, 10 tons of palm fruit can get. There was no doubt as to the quantity of oil both of them were expecting from that transaction. This means they were ad idem. There was no uncertainty or vagueness in the terms. Odutola v. Papersack (Nig.) Ltd. supra; Sona Breweries Plc vs. Peters (2005) 1 NWLR Pt.908 page 478; Ezenwa v. Ekong (1999) 11 NWLR Pt.625 page 55.
Suffice it to say that the Courts always respect the sanctity of mutually agreed terms reached by parties. Sona Breweries Plc v. Peters (supra) Owoniboys Technical Services Ltd. v. UBN Ltd. (2003) 15 NWLR Pt.844 page 545; S.E. Co. Ltd. v. NBCI (2006) 7 NWLR Pt.978 page 201. Courts do not make contracts for parties but it is the Courts duty to contrive the surrounding circumstances including written and oral statements so as to effect the intention of the parties Omega Bank (Nig) plc vs. O.B.C. Ltd (2005) 8 NWLR pt 928.
In the instant case, the terms reached were mutual and certain. None of the parties in their submissions said otherwise. However it might be noteworthy to state that the Appellant claimed that the Respondent had directed him to mill and sell the oil from the remaining palm fruits and use the money to buy fresh palm fruits and replace the rotten ones for a better quality of oil.
On the 28th May, 2008, the Appellant also said that Respondent changed his mind and told him to mill remaining palm fruits, sell all the oil and give him the money. These are at best variations of the main agreement and do not change the substratum of the contract. These assertions were however denied by the Respondent.
The Respondent claimed that the Appellant had milled up to 217 (20 litres) rubbers but had sold part of it, hence his decision to carry the remaining oil and all the palm fruits he found in the mill.
From the foregoing it would be concluded, that the Appellant breached the milling contract between, the parties. The Respondent had deposited a total of 55 tons of palm fruits between end of March to 20th May, 2008. Out of this, the Appellant had only milled 217 (20 litres) rubber. It is pertinent to state also that both parties were ad idem to the fact that the palm fruits were no longer fresh hence, the idea of selling or, and replacing with fresh fruits for a better quality of oil. This state of affairs depicted that, there was a time lag in the milling which caused the palm fruits to depreciate.
From their stories, there was no mention of time-frame within which the 55 tons were to be milled. However the court has held in many cases as follows:
Where the term of a contract is silent as to the time for the performance or satisfaction of a condition, the law shall imply that the obligation is performed within a reasonable time. However, where the parties have, by their mutual agreement, provided for the time for the satisfaction of a condition, time becomes of the essence of the agreement and thus, any breach of that condition has the effect of putting an end to the contract. Niger Insurance vs. Abed Brothers (1976) 7 SC 35, Leyland (Nig.) Ltd vs. Dizengoff (1990) 2 NWLR (pt 134) 610, Gamla (Nig.) Ltd vs. New (Nig) Bank Plc (1999) 12 NWLR (pt 631) 408 at 409.However because of the perishable nature of the consideration i.e. palm fruits reasonableness of time is even more poignant.
The failure to perform the contract within a reasonable time frame will invariably constitute a breach.
Performance must be rendered within a reasonable time in the absence of any specification as to time in the contract itself Mazim Eng. Ltd vs. Tower Alumunium (1993) 5 NWLR pt 295 page 526.The appellant in all honesty breached the terms of their contract, in that he failed to mill the palm fruits within a reasonable time thereby allowing the palm fruits to depreciate as well as the oil milled from it. Where there is a breach there must be consequences.
The option open to a party to a valid contract is an action for order of specific performance or for damages in breach of contract. See Bon Nelson (Nig) Ltd V. Moro L.G. Kwara State (2007) 8 NWLR Pt 1037 Page 623.
The appellant’s counsel had argued that, the trial Judge referred to the Respondent’s statement of defence and Counter claim filed on 27th August, 2008 instead of the amended one filed on 22nd October, 2008. In the amended statement of defence, the Respondent claimed as follows:
1. By way of counter the defence repeats Paragraphs 1-14 of the statement of defence.
2. WHEREOF the Defendant claim against the plaintiffs jointly and severally the sum of N8, 555,500 (eight million five hundred and fifty five thousand five hundred).
The Respondent referred to the original statement of defence in his counter-claim. However an amendment is simply the correction of an error committed in any process, pleadings or proceedings at law or in Equity. The main purposes of amending pleadings are to cure all discernible defects in the pleading. Eqwa V. Eqwa (2007) 1 NWLR pt 1014 pg 71, Bogban v. Diwhre (2005) 16 NWLR pt 951 pg 274, Lacjuro v. Toku (1992) 2 NWLR pt 223 pg 278, Diko vs. Ibadan South West L.G. (1997) 2 NWLR pt 486 pg 235 Alstom SA v. Sanaki (2000) 10-11 pg 49.An amendment may also be, to subtract or add to a process. The Respondent had referred to his statement of defence in the Amended statement of claim. The court would as a matter of course look at all processes filed in totality in reaching its final judgment. The object of the court is to decide the rights of the parties and not to punish them for mistakes they make in accordance with their rights. Bankole v. Dada (2003) 11 NWLR pt 830 pg 174.
Moreover, the defect if any is a procedural one and the Appellant had taken a fresh step in furtherance of his claims. The Appellant on 11th February, 2009 filed an amended statement of claim. The Appellant was not in anyway deceived as he answered succinctly in his amended statement of claim.
The Appellant Participated in the trial till judgment. It would be taken that he had waived his rights.
The Respondent is therefore entitled to his counter claim as stated by the trial Judge. I therefore affirm this part of the judgment and resolve this issue against the Appellant.
ISSUE 2
The learned counsel to the Appellant submitted that there was an understanding between the parties for the milling by the Appellant of palm fruits for the Respondents. On 31st May, 2008 when the Appellant returned he discovered that the Respondent had entered his mill, and carted away all the oil and the palm fruits in his mill, which acts of the Respondent constituted acts of trespass. The Respondent by so doing resorted to self help. See the case of Agbai v. Okogbue (1991) 6 LRCN pg 1748 where the Supreme Court held as follows:
“If the plaintiff/respondent is a member of the association which had agreed on this mode of enforcing the payment of their levies, it would have been a case of volenti non fit injuria. Since he had resisted the authority of the appellants there is certainly a dispute between the parties which self-help by itself, in circumstances such as this, is a primitive remedy capable of causing a breach of the peace. If the respondents or himself applied self-held to retrieve his sewing machine from the appellants, there must probably have been a breach of the peace, the magnitude of which no one may conjecture”
“It is the function of the courts in any orderly society or any society claiming to be orderly, to settle disputes between Persons… For any one to resort to self-help, that is, taking the law into hands, in a situation such as in this case is the very antithesis of orderliness. It is a retrogressive step which, if encouraged, will lead to chaos, anarchy and the law of the fittest”
Counsel submitted finally that the Respondent trespassed into his mill and carried away oil and palm fruits found there and urged the court to resolve this issue in favour of the Appellant.
In response, the learned counsel to the Respondent submitted that the Appellant’s case in the court below was founded on ‘trespass’. Counsel submitted that in dealing with this issue, the trial Judge had this to say.
“For by the intention of the parties, a simple contract was entered, wherein the defendant delivered his palm fruits to the plaintiff’ for milling oil palm by the latter. It was never contemplated that ownership of the Palm fruits be or was transferred from the defendant to the plaintiff, so as to entitle the plaintiff to its exclusive possession. The Possession vested on the plaintiff was temporary and in lien of the palm fruit being processed to oil palm and as such, the defendant has every right to recover possession of either the palm fruits or the Palm oil or both, in the event of failure by the plaintiff to make good their understanding”.
Also the Respondent submitted through his witnesses who testified that the appellant had started selling some of the Respondent’s oil milled. Respondent acted timeously by going to recover the remaining palm oil and the palm fruits. The Respondent said he acted promptly to avert further losses. Counsel submitted that in the circumstances, the Respondent is not liable for trespass since he is the owner of the chattels. Oluigbo v. Umeh (2004) All FWLR pt.196 pg 226.
In furtherance of the Respondent’s argument, the Respondent stated that the time-frame for milling was within 8 days of each consignment. Respondent in his testimony insisted that time was of the essence in the contract of oil milling.
Respondent’s counsel submitted that the Appellant’s case is founded on trespass to chattel.
Ownership is central to the tort of trespass. An Appellant who cannot prove ownership cannot succeed in an action for tort to chattel. See Borniface Anyiria and Co. Lagos (Nig) Ltd v. Uzor (2006) A1 FWLR pt. 334 pg 1840, SPDC V. Okonedo (2007) All FWIR pt 363 pg 1108.
Counsel submitted that the Respondent is not liable for trespass to chattel for which he is the owner and for which the appellant has began to deal with inappropriately. Counsel urged the court to resolve this issue in favour of the Respondent.
Indeed, at the trial court the Appellant dwelt on trespass to his mill so much. The Appellant rambled about the way the Respondent broke into his mill with his thugs and carted away respondent’s oil and all the palm fruits found in the mill.
The contract between the Appellant and the Respondent was silent on the mode the oil was to be removed from the mill. It would be taken that the owner, the Respondent would be expected to move his oil when it ready for evacuation. This situation therefore foists on him the authority to enter the mill and take away his oil and his palm fruits at anytime. That is exactly what he did. The trial judge had this to say about the Respondent.
“I see nothing wrong with the Respondent acting promptly in order to avert any loss or losses from the transaction. The Respondent in the circumstances is for which he is the owner and for which the plaintiff/Appellant has began to deal with inappropriately. The 13 tons of palm fruits collected from the mill only yielded 6 drums of oil. Also the 16 drums evacuated 8 were found contaminated.
One might say that the Respondent wanted to cut his losses. However motive of doing what he did is generally irrelevant in the law of tort. Thus, if the Respondent’s act is unlawful, the fact that he had a good motive for doing it will not exonerate him Garba vs. Lagos City Council (1974) 3 C.CH.C.S page 297.
The appellant breached the terms of their contract. This was what predicated the action of the Respondent.
For a Respondent to be liable to trespass to chattels the chattel must belong to the Appellant or that he has a lien on it. The oil and the palm fruits did not belong to the Appellant. At best what the Appellant had was a lien over the oil and palm fruits during the duration of the contract. As soon as he breached the terms of the contract, he lost the lien on the items. It is a difficult situation as one cannot trespass on his own chattels.
For a claimant to sustain an action for the tort of trespass to chattels, he has the burden to prove that (a) he is the owner of the chattel and (b) he has an immediate right to possession of the chattels. Unipetrol (Nig) Plc v. Buraimoh (2004) 15 NWLR pt 897 pg 641. Saliba v. Yassin (2004) 4 NWLR pt 756 pg 1, Iheanacho v. Izochukwu (1997) 2 NWLR pt 487 pg 257.This the Appellant has failed to prove. The 2nd issue is also resolved against the Appellant.
ISSUE 3
The Appellant on this issue submitted that there was no time frame in the transaction between the parties and so the trial Judge was wrong when it held that the palm fruits ought to have been milled “immediately or within a very short period of about a month”. Counsel argued that the issue of time was neither pleaded nor elicited from the evidence of witnesses during the trial. Counsel also submitted that the learned trial Judge held that the case of trespass to chattels made out by the Appellant was declared an “academic exercise”. Counsel submitted finally, that the trial Judge did not appraise, assess or evaluate the evidence elicited during the trial. Ugo v. Indiamaowei (1999) 13 NWLR pt 655 pg 152, Uku vs. Ngo (1999) 15 NWLR pt 636 pg 588.
Counsel therefore urged the court to resolve this issue in favor of the Appellant.
The learned Appellant’s counsel argued that the trial Judge did not properly evaluate the evidence placed before him in reaching a conclusion.
In the evaluation of evidence, the trial courts are guided by the following principles; namely
(a) whether the evidence is admissible;
(b) whether the evidence is relevant;
(c) whether the evidence is credible;
(d) whether the evidence is conclusion and
(e) Whether the evidence is more probable then that given by the other party. Mogaji v. Odofin (1978) 4 SC pg 91, Akand Industries Ltd. v. Olubode (2004) 4 NWLR Pt 862 pg 1.
In civil cases, the court decides the case on the balance of probabilities. In the instant case, the trial Judge painstakingly went through the gamut of the testimonies of the witnesses. He evaluated the veracity of the testimonies of the witnesses as against the pleadings and the issues joined. The trial Judge in evaluating the evidence placed before him noted that time was not part of the issues joined. However, he evaluated the evidence of both parties and held inter alia;
To my mind, the import and reasonable inference that can be deducted from the plaintiff’s admission is that the Palm fruits ought to have been milled immediately or within a very short period of about one month, from when it was delivered, in other to avoid its decomposition. To hold that there was no time frame for milling the palm fruits, will be unreasonable in the circumstance.
The trial Judge had evaluated the evidence placed before him before reaching this conclusion. His reasoning and conclusions cannot be faulted Evaluation of evidence is the primary function of the trial Judge. It is only where and when it fails to evaluate such evidence properly or at all that an appellate court can intervene and re-evaluate such evidence, otherwise the Appellate court has no business interfering with the finding of the trial court. See Adebayo v. Adusei (2004) 4 NWLR pt 862 44.
In sum the trial Judge had acquitted himself creditably in the evaluation of the evidence placed before him. I cannot in all honesty interfere with his findings and final conclusions in his judgment. He had placed on the imaginary scale all the evidence adduced before coming to his decision. I, therefore, hold that his assessment, findings and conclusions cannot be faulted. The 3rd issue articulated by the Appellant also fails.
All the 3 issues as articulated have all been resolved against the Appellant. The appeal is, therefore, unmeritorious and hereby dismissed. I affirm the judgment of the lower court delivered on 31st March, 2010.
Cost of this appeal is assessed at N50, 000.00 against the Appellant.
MOHAMMED LAWAL GARBA,J.C.A:My learned brother Uzo I. Ndukwe-Anyanwu, JCA had availed me of a draft of the lead judgment delivered in this appeal before now and after perusing it, I find that the views expressed and conclusions reached on the issues for determination in the appeal, are the same with mine.
For all the reasons set out therein, I too dismiss the appeal for being devoid of merit and adopt the order as costs.
ISAIAH OLUFEMI AKEJU,J.C.A: My learned brother, Uzo I, Ndukwe-Anyanwu, JCA gave me the opportunity of reading before now the judgment just delivered in this appeal. I agree that the appeal lacks merit and I dismiss it accordingly. I abide by the consequential order including the award of costs.
Appearances
PP. EJUKWA K. USANG, ESQ.For Appellant
AND
F. O. RIMAN ESQ.For Respondent
