KANU C. OFFONRY V. HELEN PRETTY EMEZI & ANOR (2012)

KANU C. OFFONRY V. HELEN PRETTY EMEZI & ANOR

(2012)LCN/5362(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of May, 2012

CA/PH/162/2006

RATIO

EVIDENCE: NATURE OF A MATERIAL CONTRADICTION

A material contradiction is one which goes to the root of the evidence of a witness and is therefore fatal to the case of the party who calls him, as it destroys the credibility of the witness. See GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) Pg. 457 at 468; OBIDIKE v. THE STATE (2002) FWLR (Pt. 87) Pg. 784 at 808; and UKUT v. STATE (1995) 9 NWLR (Pt. 420) Pg. 392 at 407. PER HARUNA M. TSAMMANI, J.C.A

EVIDENCE: PRIMARY FUNCTION OF A TRIAL COURT

The law is now settled that, it is the primary function of a trial court which had the advantage of seeing and hearing the witnesses to assess and evaluate the evidence led by them. In other words, the evaluation of evidence and ascription of probative value to such evidence, both oral and documentary, are the functions of a trial court which saw, heard and assessed the witnesses. See AMUNEKE v. STATE (1992) 1 NWLR (Pt. 217) Pg.338. The trial judge in evaluating the evidence adduced before him, has the duty to first of all put the totality of the testimony of the witnesses and other documentary evidence adduced by the parties on an imaginary scale in order to see which side of the evidence preponderates. In other words, he will put the evidence adduced by the plaintiff on one side of that imaginary scale, and that of the defendant on the other side and weigh them together. The side that has the heavier quality or probative value carries the day. See MADAM RABIATU & ORS v. A. R. MOGAJI & ORS (1978) 11 N.S.C.C. Pg. 275; OYEDEJI v. AKINYELE (2001) 29 W.R.N Pg. 69; BABA v. N.C.A.T.C (1991) 5 N.W.L.R (Pt. 192) Pg. 388. PER HARUNA M. TSAMMANI, J.C.A

EVIDENCE: EFFECT OF A MATTER AGREED BY BOTH PARTIES

Clearly, when both parties have agreed about a particular matter in their pleadings such matter need not be proved and they should accept such an agreed fact as established.

See also, Kenlink Holdings Ltd. v. R.E. Invest. Ltd. (1997) 11 NWLR (Pt. 529) 438 Edokpolo & Co. v. Ohenren (1994) 7 NWLR (Pt. 385) 511, Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23.

Relatedly, such an admission relieves the other party of the need to call any evidence on the issue. PER MOHEED A. OWOADE, J.C.A

EVIDENCE: EFFECT OF UNDENIED ALLEGATIONS

I do agree with the lead judgment that evidence on the undenied allegations of the Respondents, deemed admitted by the Appellants cannot amount to hearsay and needed no corroboration.

This is because admissions, whether formal or informal are recognized exceptions to the rule excluding hearsay.

See e.g. Phipson on Evidence 12th Edition page 289 paragraphs 664. PER MOHEED A. OWOADE, J.C.A

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

KANU C. OFFONRY Appellant(s)

AND

1. HELEN PRETTY EMEZI
2. CHIKODI EMEZI Respondent(s)

HARUNA M. TSAMMANI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of N. O. Adigwe; J of the Imo State High Court sitting at Owerri in Suit No: HOW/209/2000, delivered on the 21st day of March, 2005.
The Appellant as plaintiff in the Lower Court had taken out a writ of summons against the Respondents, claiming special and general damages for assault committed against him by the Respondents. Specifically, he pleaded in paragraphs 12 and 13 of the statement of claim dated the 17/2/2001 (pg. 11 of the record of appeal), as follows:
12. The Plaintiff suffered losses and embarrassment to his person from the defendants’ concerted unlawful and unjustifiable assault on his Person.
13. WHEREOF the plaintiff claims jointly and severally the defendants (sic) as follows:
(i) SPECIAL DAMAGES
(a) Tore (sic) shirt – N2, 000.00
(b) Pair of Prescribed eye glass – N50, 000.00
(c) Loss of earrings – N100, 000.00
(ii) GENERAL DAMAGES – N4, 848.000.00
TOTAL – N5, 000,000.00
The case of the Appellant as Plaintiff before the trial court is that, the 11th National Sports Festival, tagged, Imo 98, took place in Owerri, Imo State in December, 1998. To successfully host the festival, the Local organising Committee, set up sub-committees for the purpose, and one of such sub-committees was the Protocol Committee. The said sub-committee was chaired by the P.W.2 – Bishop I. N. Erimujor and the membership included the Appellant, P.w.3 and P.w.4 among others.
The 1st Respondent was also a member of that committee. That during one of the meetings of the committee on the 19/12/98, and which meeting was to conclude preparations for the closing ceremony coming up the following day, the, issue of rosettes (garlands) to be used for decorating dignitaries at the closing ceremony came up.
It is also the case of the Appellant that, during the said meeting, and when the issue of rosettes came up, the 1st Respondent offered to sell the rosettes to the committee. That the sub-committee discussed the issue and decided not to buy the rosettes from the 1st Respondent. The 1st Respondent who was at the meeting was greatly unhappy with the decision of the sub-committee, whereof she proceeded to threaten, insult and rein abuses on the other members of the committee present at the meeting. That she was particularly angry with the P.W.3 (Onyebuchi Onyeikegbulam) whom she accused of being unfair to her, and in the process insulted him by saying; “Onyebuchi Onyeikegbulam, you have shown that you are an Mbaise man, and you are a thief. You are evil as all Mbaise people.” The P.W.3 did not respond to this insult, but it was the Appellant who did, by retorting to the statement above; thus, “kedu muka Ndi Awaka;” meaning “what about Awaka People.” It was this statement of the Appellant in response to the statement of the 1st Respondent that ignited the dispute between the parties leading to this appeal.
The Respondents’ version is that, the 1st Respondent was a member of the protocol sub-committee, while the 2nd Respondent who is the daughter of the 1st Respondent was engaged as an usher in the protocol and ceremonial sub-committees. That the conflict between the Appellant and the 1st Respondent started before the 19/12/98, when the Appellant had called the 1st Respondent a stupid woman, and on another occasion tried to dissuade the chairman of the sub-committee from assigning any duty to her or giving her money. The 1st Respondent agreed that she was angry with the decision of the committee not to buy her rosettes (garlands) as she had spent about N14, 000.00 to make them. That it was while expressing her anger towards the P.W.3 (Onyebuchi Onyeikegbulam) when she said to him; “onye Mbaise onye oshi,” meaning, “Mbaise man, you are a thief.”
The Appellant then retorted in answer to this statement of the 1st Respondent, whereof the 2nd Respondent told him not to personalize the issue, while pointing at him with her finger. That the Appellant then slapped the 2nd Respondent, thereby drawing the attention of the 1st Respondent. This then resulted into the conflict upon which this case is premised.
At the trial, the Appellant testified and called four witnesses, who gave evidence as P.W.2, P.W.3, P.W.4 and P.W.5. Each of the Respondents also testified, and two other witnesses were called, who testified for the defence (Respondents). At the close of evidence, counsel addressed the court, and in a considered judgment delivered on the 21/3/2005, the learned trial judge dismissed the Appellant’s claim. The Appellant felt aggrieved with the judgment of the lower court and has now filed this appeal.
The Notice of Appeal is dated the 25/05/2005 and filed the 27/5/2005. It consists of four (4) Grounds of Appeal, which are hereunder reproduced, but without their particulars. They are:
1. The learned trial judge misdirected himself and therefore occasioned a miscarriage of justice when he held a follows: “having considered the evidence of the plaintiff and witnesses as well as defence of the defendants and their witnesses, I have come to the conclusion that the plaintiff has not proved his case to entitle him to his claim.”
2. The learned trial judge erred in law when he restricted his finding to special damages and refused to make any finding on general damages.
3. The learned trial judge misdirected himself when he copiously relied on extraneous and/or irrelevant facts to castigate the plaintiff and to buttress his decision.
4. The decision of the trial court with respect to case of assault and award of general damages is against the weight of evidence.
From the four grounds of appeal, the Appellant nominated two issues for determination as follows:
1. Whether the perception, appreciation and evaluation of the evidence on record by the trial judge which led to the dismissal of the Appellant’s case including the claim for general damages for assault was not wrong, improper, perverse and outrageous?
2. Whether the Appellant has not proved the case of unlawful assault presented before the trial court beyond reasonable doubt to be entitled to the claim for general damages and as pleaded in his statement of claim?
The Respondents also formulated two (2) issues for determination, as follows:
(1) Whether the evaluation of the evidence by the Trial Judge which led to the dismissal of the Appellant’s case including non (sic) was right.
(2) Whether the Appellant merits the award of damages in view of the findings of the High Court Judge.
It should be noted that those issues were formulated by the parties in their respective briefs of argument. The Appellant’s brief of argument is dated the 28/3/2007 and filed the 5/4/2007. It is deemed filed the 12/6/2007, vide Motion on Notice dated and filed the 05/4/2007. The Respondent’s brief of argument is undated, but filed 26/5/2008, and deemed filed the 26/5/2008. At the hearing, both parties adopted their respective briefs of argument as their arguments in this appeal.
In the determination of this appeal, I shall utilize the issues formulated by the Appellant, though the issues formulated by the Respondents appear to be clearer in substance. As it is, the issues formulated by the Respondent are adequately covered by the issues nominated by the Appellant.
I have carefully reflected on the 1st issue nominated by the Appellant for determination in this appeal. In my view, the Appellant by that issue questions the evaluation of the evidence by the learned trial judge and his findings thereon. In arguing same, the Appellant raised several sub-issues which need be considered. In that respect, I shall proceed to consider each of the sub-issues before concluding on the main issue.
In arguing this issue, learned counsel for the Appellant began by contending that, the 1st Respondent’s evidence that the Appellant slapped the 2nd Respondent, tore her blouse, gave her wounds on the wrist and that she lost her wrist watch and gold necklace in the process or fight was uncorroborated and therefore tainted as the evidence of D.W.1, D.W.3 and D.W.4 on same were based on hearsay because none of them was an eye-witness to the alleged events. That by Section 77(b) of the Evidence Act, since the evidence of majority of the defence witnesses were based on hearsay on the issue of the slapping of the 1st Respondent and her losses, they are inadmissible. The case of SUMMIT FINANCE CO. LTD v. IRON BABA & SONS LTD (2004) FWLR (pt. 188) pg. 996 was cited in support. He also submitted that since the allegations that the Appellant slapped the 2nd Respondent are an event which took place in the presence of other persons, it ought to have been corroborated by those eye witnesses. That the testimony of the D.W.1, D.W.3 and D.W.4 are based on hearsay, they cannot corroborate the evidence of the 2nd Respondent on the issue of her being slapped by the Appellant. The cases of F.B.N v. ASSOCIATED MOTORS (1998) 10 NWLR (Pt. 570) Pg. 441 at 474, UDO v. ESHIET (1994) 8 NWLR (pt. 363) Pg. 483 at 501 and OJO v. GHARORO (2006) ALL FWLR (Pt. 389) Pg. 197 at 215 were cited in support.
It is therefore the submission of learned Appellant’s counsel that since the testimony of the 1st Respondent about her loses and injury inflicted on her by the Appellant was not corroborated by the testimony of P.W.1, P.W.3 and P.W.4 who were at the scene of the incidence, such evidence is in law inadmissible and should be disregarded. The Respondents did not respond to this issue as argued by the Appellant.
I have perused the pleadings of the Respondents in their joint statement of defence. Specifically, the Respondent pleaded at paragraph 9, 10 and 11 of the said statement of defence as follows:
“9. All the time the 1st defendant was having a quarrel with Onyebuchi Onyeikegbulam, she never said a word to the plaintiff but the plaintiff started insulting her.
10. The second defendant who had just been discharged from hospital after surviving a ghastly motor accident with the stitches on her ears and other places still very fresh was standing quietly near the canopy where the meeting was taking place. On hearing her mother being insulted by an intruder, warned him but the plaintiff immediately slapped her on the very ear she had stitches and beat her up mercilessly; he said imagine a little girl coming to warn me.
11. On sighting the plaintiff beating up her daughter who was still not fully recovered from her injuries, the 1st defendant came running from her car where she went to put the rejected rosettes in her car and demanding to know why Offonry was beating up her daughter…the Plaintiff was waiting for her and thoroughly beat her up, damaged her wrist watch, bracelets, rings (wedding and engagement) and her chains worth over two hundred thousand.
The Appellant did not respond to these allegations of the Respondents as he did not file any reply thereto. It is trite law that, a Plaintiff who desires to deny any special allegation in a statement of defence, has a duty to file a Reply thereto. The function and importance of filing a reply by a plaintiff to a statement of defence arises where the Plaintiff wishes to admit, deny or object to issues raised by the defendant in the statement of defence. It is however the law that, where no counter claim is filed by a defendant, a reply is generally not necessary; if its sole purpose or object is to deny allegations contained in the statement of defence. See AKEREDOLU & ORS v. AKINREMI & ORS (1989) 3 NWLR (Pt. 108) Pg. 164; UMENYI v. EZEOBI (1990) 3 NWLR (Pt. 140) Pg. 621 at 629; OBOT v. C.B.N (1993) 8 NWLR (pt. 310) PG. 140 at 159 and SPASCO VEHICLE & PLANT HIRE CO. v. ALRAINE (NIG) LTD (1995) 8 NWLR (pt. 116) Pg. 655 at 670.
However, whereby the nature of the statement of defence filed and the averment contained therein, the plaintiff proposes to lead evidence in rebuttal or to raise new issues of fact not covered by his statement of claim or statement of defence already filed, then it would be prudent and desirable for the plaintiff to file a reply in answer to the new issues. See BAKARE & ANOR v. IBRAHIM (1973) 6 S.C 205; MOBIL v. ASURAH (2001) 16 NWLR (Pt. 740) Pg. 723.
In the instant case, the Respondents pleaded generally how the Appellant beat them up causing them losses and loss of certain materials. Though they did not counter-claim for those materials and for the injury, I am of the view that by the state or nature of those pleadings, the evidence led on those pleadings, the evidence led thereon will have a serious impact on the claim of the Appellant considering the nature of his claim. In that respect, I am of the view that it was desirable, and indeed incumbent on the Appellant to have filed a Reply thereto, so as to enable him lead evidence in rebuttal. This he did not do. Furthermore, the Appellant did not adduce a single evidence in rebuttal of the Respondents’ pleading reproduced above. The Respondents gave consistent testimony of those facts which were never controverted in cross-examination. That being so, the allegation of the Respondents cannot be said to be hearsay and needed no corroboration.
It is also the contention of learned counsel for the Appellant that, the Respondents have failed to prove assault against them beyond reasonable doubt. That they did not tender any of the items pleaded by them nor call any evidence, such as the Investigating Police Officer, whom they claimed to have investigated their claim. It was therefore submitted for the Appellant that the failure of the Respondents to tender the police medical proforma, the extracts of complaint etc which were pleaded and relied on in their statement of defence is fatal and detrimental to their case. The cases of OMUNGA v. THE STATE (2006) ALL FWLR (Pt. 306) Pg. 930 at 953 and UZOHO v. TASK FORCE HOSPITAL MANAGEMENT (2003) FWLR (Pt. 166) Pg. 606 were cited in support. He further relied on the case of OJO v. GHARORO (supra) at Pg. 250, to submit that pleadings do not constitute evidence and where pleadings are not supported by evidence, they go to no issue. That since the Respondents failed to tender the entry made at the police station, the Police Medical Proforma, the Doctor’s Report and the Police file relating to the complaint made at the Owerri Urban Police Station on the alleged assault on them by the Appellant, their testimony thereon go to no issue.
It should be pointed out that the Respondents were defendants to the action before the lower court. They did not specifically counter claim, though they pleaded facts so as to show that the Appellant was the aggressor and not them. As defendants to the action they had the only duty to defend the action, and not having filed any counter claim, they had no burden on them to prove their allegation beyond reasonable doubt. Their duty was only to plead evidence which would cast doubt on the Appellant’s claim. In that respect, their failure to reproduce or tender the documents pleaded by them in their statement of defence would not per se defeat their defence that it was the Appellant who was the aggressor. If for anything their failure to tender those documents, in my view, may be evidence that they did not report the matter to the police. In any case, they called the D.w.3 who gave evidence that the Respondents did report the matter at the Owerri Urban Police Station, and did explain under cross-examination why he was unable to produce the documents, which were evidence of the receipt of the Respondent’s complaint. I therefore hold that it would not be in accord with justice to jettison the evidence of the Respondents that they were attacked by the Appellant on account of their failure to tender documents pleaded by them of the complaint they made to the police. That would have been relevant if they had counter-claimed.
Learned counsel for the Appellant submitted that the evidence of the D.W.4 is hearsay as he did not witness the incident of the alleged assault on any of the Respondents, because he had stated that, he left the venue together with Onyebuchi Onyeikegbulam P.W.3; That they were at the car park when he heard some shouts at the venue he had left, and when he returned, he observed that the dress of the Appellant and the 1st Respondent were torn. That this pieces of evidence was not pleaded in the statement of defence. That as parties are bound by their pleadings, the testimony of the D.W.4, which is not pleaded goes to no issue. We were then urged to disregard the evidence given by the D.W.4 and the 2nd Respondent on the issue of the torn dresses, as they were not raised in the statement of defence. The cases of SUMMIT FINANCE CO. LTD v. IRON BABA & SONS LTD (supra) at Pg. 1013 and OKOLO v. UNION BANK OF NIG. LTD (2004) ALL FWLR (pt. 197) Pg. 981 at 1001 were cited in support.
The primary purpose of pleadings in a civil case is to define and narrow the scope of the issues in controversy in each case. This is also to avoid the element of surprise as the pleading will give notice to the opponent of what to expect in court. In that respect, it is necessary that all facts must be averred with certainty in a way as to put the other party on notice as to the nature of the case of his opponent. See ODOGWU v. ODOGWU (1990) 4 NWLR (Pt. 143) Pg. 224 at 234. Accordingly, where a party relies on certain state of facts, he need not state the shot subordinate facts, which are the means of proving it, or the evidence to sustain his averment. In other words, a party is only expected to plead in a summary manner, the facts he intends to rely on at the trial, and not the evidence to sustain the allegations of fact. See BABATUNDE ADISA THANI V. SABALEMOTU SAIBU (1977) 2 S.C. Pg. 89 at 177; METAL CONST. (W.A) LTD v. ABODERIN (1998) 8 NWLR (Pt. 563) pg.538; IFEADI v. ATEDZE, (1998) 13 NWLR (pt. 581) pg. 205 and AKAGBUE v. ROMAINE, (1932) 2 S.C Pg.133.In the instant case, the statement credited to the D.W.4 that when he returned to the venue of the meeting, he saw that the dresses of the Appellant and 1st Respondent were torn is evidence in support of the pleadings of, the Appellant and 1st Respondent, who accused each other of tearing their cloths. It is evidence which does not require to be pleaded and thereto admissible.
Learned counsel for the Appellant further contended that the testimonies of the defence witnesses are riddled with material contradictions and inconsistencies. He referred to paragraph 9 of the statement of defence wherein the Respondent pleaded that, at the time she was having a quarrel with Onyekachi Onyeikegbulam, she never said a word to the Appellant, but the Appellant started insulting her. He then contended that the evidence led by the 1st Respondent is contrary to their pleading in that the 1st Respondent in her testimony stated that she was the one talking but P.W.3 (Onyekachi) did not respond and that she never said the P.W.3 responded. That the 2nd Respondent did not also state that the P.W.3 shouted back at the 1st Respondent. He then submitted that, the Respondents’ evidence that the 1st Respondent was shouting at the Appellant contradicts their pleadings that the 1st Respondent was quarreling with the P.W.3.
Learned counsel further submitted that, the 2nd Respondent stated under cross-examination that she did not tear the Appellant’s shirt, but when confronted with her statement to the police (Exhibit D) admitted telling the police that they tore the Appellant’s suit. That the 1st Respondent stated that she was treated at a hospital but in her statement to the police (Exhibit C) she stated that she did not go to the hospital, but treated herself at a local chemist. That those inconsistencies were not reconciled by the Respondents’ and therefore the trial court ought to have relied on the consistent and uncontradicted evidence led by the Appellant to make findings in favour of the Appellant. There was no response to those issues by the Respondents.
Now, the law is that parties are bound by their pleadings, accordingly any evidence led which is contrary to the pleadings is inadmissible, and if it is inadvertently admitted, it will go to no issue. A party in a case heard on the pleadings must therefore call evidence to support his pleadings, and where such evidence led thereon is contrary to his pleading, it should not be admitted. See N.I.P.C. v. THOMPSON ORGANISATION (1969) 1 ALL N.L.R. pg.134 at 138; OGUNDE v. OJOMU (1972) 7 N.S.C.C. Pg. 240 at 246; OLORIODE v. OYEBI (1934) 15 NSCC Pg. 286 at 294 and ORIZU v. ANAEGBUNAM (1973) 11 N.S.C.C. Pg. 280 at 286. In the instant case, I am of the view that the testimony of the Respondent is not at variance with paragraph 9 of the statement of defence. It is not the law that the testimony of a witness must be in exact terms as the words used in the pleadings. It is sufficient that the evidence led on the pleading substantially brings out the meaning or essence of the pleaded paragraph. The purpose of Paragraph 9 of the statement of defence is to state the fact that the 1st Respondent did not direct her words to the Appellant.
On the issue of contradictions and inconsistencies in the testimony of the Respondents, I have observed that learned counsel used the terms contradictions and inconsistencies interchangeably. For the purpose of this case, I will not bother with any distinction if any, between the two words. In that respect, I will take them as if they mean the same thing. It suffices to state that, for a contradiction to affect the testimony of a witness, it must be a material one. A material contradiction is one which goes to the root of the evidence of a witness and is therefore fatal to the case of the party who calls him, as it destroys the credibility of the witness. See GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) Pg. 457 at 468; OBIDIKE v. THE STATE (2002) FWLR (Pt. 87) Pg. 784 at 808; and UKUT v. STATE (1995) 9 NWLR (Pt. 420) Pg. 392 at 407. In the instant case, the contradictions highlighted by the learned counsel for the Appellant are not material contradictions as to affect the substance of the Respondents’ defense. For instance, whether the 1st Respondent visited the hospital or a local chemist is not material to the Respondent’s defence. It would have been material if they had counter claimed. Similarly, the fact that the Investigating Police Officer was not called to testify is not material as to affect the Respondents’ case, since the D.W.3 testified that he infact received the Respondents’ complaint at the Owerri Urban Police Station.
On the issue of the contradiction in the testimony of the 2nd Respondent in court, and her statement to the police (Exhibit D), it is obvious that while the 2nd Respondent stated in Exhibit D that they tore the Appellant’s shirt, she denied tearing the Appellant’s shirt under cross-examination. In such a situation, the law is that, where a witness makes a statement in court which is inconsistent with his extra-judicial statement, such evidence shall be treated as unreliable. See STATE v. AKPABIO (1993) 4 NWLR (pt. 256) pg. 204; ADISA v. STATE 1991) 1 NWLR (Pt. 168) Pg. 490; IBE v. THE STATE (1993) 7 NWLR (Pt. 304) Pg. 185. In the instant case, the 2nd Respondent admitted making the statement (Exhibit D). She also admitted that she stated in Exh. D that they tore the Appellant’s shirt. I am of the view that her answers in cross-examination repudiated her denial in court that they tore the Appellant’s shirt, and confirmed her admission that they tore the said Appellant’s shirt. It therefore has been admitted by the 2nd Respondent that they tore the Appellant’s shirt.
It is in view of the muddled up submissions of counsel for the Appellant that I had to carefully wade through same in order to bring out the material issues that call for determination in this appeal. Having done that, I now proceed to consider the substantive issue in the appeal.
Now, learned Appellant’s counsel contended at pages 6-7, Paras 4.20-4.23 that, the findings of the learned trial judge which led to the dismissal of the Appellant’s claims were based on hearsay evidence, reckless disregard to the rules of evidence and of pleadings, which led the trial court to wrongly perceive, appreciate and evaluate the evidence on the record in favour of the Respondents. He made copious reference to the testimony of the Respondents and their witnesses to further submit that, instead of relying on the Appellant’s evidence to evaluate the facts of the case, the learned trial judge relied on the contradictory and inadmissible evidence of the Respondents s well as other extraneous or irrelevant facts to dismiss the Appellant’s case. Learned Appellant’s counsel then contended that, it was an unwarranted aggression for the 2nd Respondent to react to the statement of the Appellant in response to the statement of the 1st Respondent, by sticking a finger into the Appellant’s face, and for the Respondents to rely on same to assault the Appellant.
It is also the submission of the learned counsel for the Appellant that, the statement “what about Awaka people, are they better than Mbaise people?” in response to the statement made by the 1st Respondent to the P.W.3 against the Mbaise people was a fair and proper comment in the circumstances it was made. That instead of looking at this evidence in that con, the learned trial judge viewed the matter the other way, and held that it was the indisposition of the Appellant which provoked the 1st Respondent that led to this suit. That the learned trial judge failed to give cogent reasons for his preference of the Respondent’s case. The cases of AJIBOWA v. OLAWOLE (1996) 12 SCJN Pg. 270 at 277-281; NNEJI v. CHUKWU (1996) 12 SCNJ Pg. 388 at 395 were relied on by learned counsel to evaluate the evidence adduced. That if that is done the appeal should be allowed and damages should be awarded to the Appellant.
It is the submission of learned counsel for the Respondents that, it is the primary duty of the trial court which had the opportunity of seeing the witnesses and hearing their testimonies, to evaluate their evidence, ascribe probative value thereto and make findings of facts based on such evidence. See EGONU v. EGONU (1978) 11-12 S.C. pg. 11 and WOLUCHEM v. GUDI (2004) 3 NWLR pg. 20. That in the instant case, the trial court rightly evaluated the evidence of the Appellant and his witnesses, and that of the Respondents, and arrived at the decision that the Appellant provoked the fight that led to the incidence of 19/12/1998.
Learned Respondent’s counsel went on to submit that, the Respondents pleaded and gave evidence to the effect that, the Appellant never liked the idea of the 1st Respondent being a member of the subcommittee. That on one occasion, the Appellant without just cause, called the 1st Respondent a stupid woman and even threatened to beat her up. That no effort was made by the Appellant to deny this fact, and therefore it is deemed that he admitted same. The case of T.C. FAN LTD v. MISUI LINBS LTD. (2005) 21 WRN Pg. 62 at 67 were cited to further contend that the intentions of the Appellant to assault the 1st Respondent pushed him to retort to the statement made, not to him, but Onyebuchi Onyeikegbulam (P.W.3). That the Appellant admitted that he is not an Mbaise man, and he did not plead nor give evidence that his wife is from Mbaise, so as to at least justify his reaction to the statement made by the 1st Respondent.
It is also the submission of the learned counsel for the Respondents that, the learned trial judge was right in coming to the conclusion that the Appellant provoked the fight on the 19/12/98, and therefore cannot reap the benefit of that provocation. That the learned trial judge rightly evaluated the evidence by placing the evidence adduced by both sides on the imaginary scale, came rightly to the conclusion that the Appellant’s case is not credible. That there was no extraneous material used by the trial court. But the learned trial judge relied on the evidence adduced by both sides in reaching its decision. It was therefore submitted that this court has no business to interfere in the circumstances. That in any case, there is a presumption in favour of the correctness of the findings of the trial court, and the Appellant had the duty to rebut that presumption, but failed to do so. The cases of AGBAJE v. AJIBOLA (2002) 1 NRN Pg. 1 at 7 and SOKWO v. KPONGO (2003) ALL FWLR (Pt. 410) Pg. 684, were cited in support.
The crux of the Appellant’s complaint in his muddled submissions on issue 1 as formulated by him, is on the evaluation or improper evaluation of the evidence by the learned trial judge. The law is now settled that, it is the primary function of a trial court which had the advantage of seeing and hearing the witnesses to assess and evaluate the evidence led by them. In other words, the evaluation of evidence and ascription of probative value to such evidence, both oral and documentary, are the functions of a trial court which saw, heard and assessed the witnesses. See AMUNEKE v. STATE (1992) 1 NWLR (Pt. 217) Pg.338. The trial judge in evaluating the evidence adduced before him, has the duty to first of all put the totality of the testimony of the witnesses and other documentary evidence adduced by the parties on an imaginary scale in order to see which side of the evidence preponderates. In other words, he will put the evidence adduced by the plaintiff on one side of that imaginary scale, and that of the defendant on the other side and weigh them together. The side that has the heavier quality or probative value carries the day. See MADAM RABIATU & ORS v. A. R. MOGAJI & ORS (1978) 11 N.S.C.C. Pg. 275; OYEDEJI v. AKINYELE (2001) 29 W.R.N Pg. 69; BABA v. N.C.A.T.C (1991) 5 N.W.L.R (Pt. 192) Pg. 388.
That being so, where the trial court has fully discharged that burden or duty it will not be proper for an Appellate court to interfere and off-set a finding so reached at by the trial court. This court therefore lacks the jurisdiction to interfere with the decision of a trial court, merely because it would have arrived at a different conclusion from that of the trial court, so long as it is evident from the record that the trial court dutifully carried out the function of evaluating the evidence and ascribing the right probative value thereto. See OPARA v. OMOLU (2000) 12 N.R.N pg. 42; ADEKUNLE v. AREMU (1998) 1 NWLR (pt. 533) pg. 203 and ADELEKE v. IYANDA (2001) 28 W.R.N Pg. 1 at 15.
However, in a situation where the evaluation of the evidence by the trial court is found to be defective, an appellate court has a duty to interfere. Thus where the trial court fails in its duty to properly evaluate the evidence on the record and therefore reached at a conclusion which is contrary to the evidence adduced or that the conclusion reached thereat is found to be perverse, the appellate court will interfere and reevaluate the evidence provided the evaluation will not involve credibility of witnesses. See KEZIE v. IWUOHA (1998) 8 NWLR (Pt.563) Pg. 554; ADELEKE v. IYANDA (2001) 28 W.R.N Pg. 1 at 15.
In the instant case, alter reviewing the evidence led by the parties and the submissions of counsel thereon, the learned trial judge found that, in this case, both parties claim that they were assaulted, but it is only the Plaintiff/Appellant that instituted the action and there is no counter claim. He therefore rightly found that, in the absence of any counter claim, it is the case of the Appellant that will be considered. The learned trial judge also rightly found that, in the circumstances, it is the Plaintiff/Appellant that has the onus of proof. That though, the claim is a civil one, the ingredients of the claim rests on the alleged criminal conduct of the Appellant, and to succeed, the Appellant had to proof his case beyond reasonable doubt. Indeed, that is so because, where a claim in tort also amounts to a crime, it is the criminal standard of proof, which is that beyond reasonable doubt that should apply. See Section 138 of the Evidence Act and the case of OKUARUME v. OBABOKOR (1966) NWLR Pg. 47.
The learned trial judge then found that, it is common ground that the refusal of the ceremonial sub-committee, Imo’ 98 to accept the Rosettes brought by the 1st Respondent for the closing ceremony was the starting point of the dispute on the 19/12/98, culminating in this suit. He then quoted portions of the testimonies of the P.W.1, P.W.3 and D.W.1 to support his finding that, it is obvious that, it was the refusal of the sub-committee to accept the 1st Defendant/Respondent’s Rosettes that upset her and made her to make the remarks on Onyebuchi Onyeikegbulam, as follows as:
“Onyekachi Onyeikegbulam, you have shown that you fire evil, a thief as all Mbaise people.”
It is also established by the evidence that, the said Onyekachi to whom the 1st Respondent directed her statement did not respond. It was also found as established that, it was the Appellant who retorted by asking:
“What of Awaka people, are they better than Mbaise People.”
The learned trial judge then found, rightly in my view, that if the Appellant had not reacted to what he called Onyekachi Onyeikegbulam’s cause, the subsequent event would not have occurred. This statement of the Appellant did not go down well with the 2nd Respondent, who is the 1st Respondent’s daughter who was standing nearby and heard the remark of the Appellant. She then pointed a finger at the Appellant in protest, and which act angered the Appellant who then slapped the 2nd Respondent. This act undoubtedly led to a fight between the Appellant and the Respondents. This fact, the learned trial judge found to be established, from the testimony of the D.W.4, who stated that, when he returned to the venue (scene), he observed that the Appellant’s and the 1st Respondent’s dresses were torn. This fact was never challenged under cross-examination.
The learned trial judge then concluded from his findings that:
“I find as fact that, if the Plaintiff had kept away from the indisposition of the 1st defendant to the rejection of her Rosettes, like other members of the sub-committee the episode of 19th December, 1998 that led to this suit would have been avoided. I am of the view that the Plaintiff by his unsolicited intervention by retorting; “what about Awaka people, are they better than Mbaise people”, precipated the intervention of the 2nd defendant who asked him not to personalize the matter.”
On that note, the learned trial judge came to the conclusion that the Appellant had failed to prove his case as to entitle him to his claim. I am of the view that the above finding of the learned trial judge cannot be faulted. The evidence led in this case, and which is not controverted show clearly that there had been some existing animosity between the Appellant and the 1st Respondent. The evidence led show that on one occasion, the Appellant called the 1st Respondent “a stupid woman” and threatened to beat her without just cause. On another occasion, the Appellant tried to dessuade the chairman of the committee from assigning any role to her on his (Appellants) belief that the 1st Respondent was not a member of the committee. I am therefore in no doubt that the learned trial judge adequately considered the evidence adduced by the parties in this case, and rightly came to the conclusion that the Appellant is blameworthy of setting in motion the events that led to the initiation of this action.
Indeed, and as a general rule, where the injury occurred to a plaintiff due to his own conduct, he cannot be heard to complain, and is therefore not entitled to any compensation by way of damages from the defendant. Thus, where the plaintiff knew or it can be reasonable presumed that he knew or ought to know that his conduct is wrongful or blamable, his claim will fail. This has been shown to be so in the instant case.
Having found that the learned trial judge rightly dismissed the Appellant’s case, it will serve no useful purpose to go into the 2nd issue, which deals with whether or not the Appellant merits the award of damages. He will only be entitled to damages if he is able to prove his case. In this case he did not.
On the whole therefore, I hold that this appeal has no merit. It fails and is accordingly dismissed. The judgment of the Lower Court dismissing the Appellant’s claim in suit No: HOW/209/2000 is hereby affirmed.
I award thirty thousand naira (N30, 000.00) as cost in favour of the Respondents.

UWANI MUSA ABBA AJI, J.C.A: I have had the opportunity of reading the Judgment of my learned brother Tsammani (JCA) just delivered and I entirely agree with the reasoning and conclusion that the appeal lacks merit.
I hereby dismiss the appeal and endorse the consequential order as to costs.

MOHEED A. OWOADE, J.C.A: I had the privilege of reading in draft the judgment just delivered by
My learned brother TSAMMANI JCA, I agree with the reasoning and conclusion. I also hold the view that the appeal lacks merit and ought to be dismissed.
I wish to comment on one or two issues of pleadings and evidence raised in the appeal.
First, one of the contentions of the Appellant who was plaintiff in the lower court in this appeal is that the evidence of Dw1, Dw3 and Dw4 are based on hearsay and therefore cannot corroborate the evidence of the 2nd Respondent on the issue of her being slapped by the Appellant.
As it turned out from the facts of this case, the Appellant did not file any Reply to the pleadings of the Respondents on the issue of the 2nd Respondent being slapped by the Appellant, which issue was not raised in the pleadings of the plaintiff/Appellant. The consequence in law of the above scenario is that even before the so called “hearsay evidence” of the Respondents witnesses on that issue, the slapping of the 2nd Respondent by the Appellant was deemed admitted by the appellant.
Meanwhile, whatever is admitted in law needs no further proof? By section 123 of the Evidence Act 2011″No fact needs to be proved in any civil proceeding which the parties or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings…”
Clearly, when both parties have agreed about a particular matter in their pleadings such matter need not be proved and they should accept such an agreed fact as established.
See also, Kenlink Holdings Ltd. v. R.E. Invest. Ltd. (1997) 11 NWLR (Pt. 529) 438 Edokpolo & Co. v. Ohenren (1994) 7 NWLR (Pt. 385) 511, Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23.
Relatedly, such an admission relieves the other party of the need to call any evidence on the issue.
Therefore, the complaint of the learned counsel for the Appellant in the instant case that the evidence of DW1, DW3 and DW4 amounted to hearsay becomes irrelevant in view of the failure of the Appellant to deny by way of reply the allegations in the pleadings of the Respondents.
In other words, I do agree with the lead judgment that evidence on the undenied allegations of the Respondents, deemed admitted by the Appellants cannot amount to hearsay and needed no corroboration.
This is because admissions, whether formal or informal are recognized exceptions to the rule excluding hearsay.
See e.g. Phipson on Evidence 12th Edition page 289 paragraphs 664.
The Appellant also contend that the evidence of DW4 that “they were at the car park when he heard some shouts at the venue he had left, and when he returned, he observed that the dress of the Appellant and the 1st Respondent were torn…”
Should be disregarded first as hearsay and second that it goes to no issue as it was not pleaded by the Respondents
In the first place, I must say that the evidence of what a witness saw is not hearsay. The definition of Hearsay in section 37 of the Evidence Act 2011 does not include an account of what a witness saw physically with his or her own eyes.
In the case of Ajiboye v. State (1984) 8 NWLR (Pt.364) 593 at 600, the Court of Appeal held that a witness in a case is supposed to give evidence of what he personally saw, did or discovered and not what he/she heard or was told by someone.
Secondly, on this point, the fact that the dress of the Appellant and the 1st respondent were torn was common ground between the parties, it was not disputed, the parties did not join any issues on that fact and therefore it needed no proof or disproof by any of the parties.
On the whole the rather interesting crux of this matter is that the appellant who was plaintiff and who had the burden of proof could not sustain his case with his pleadings and evidence.
The Respondents, on the other hand, even though did not counter claim labored by their pleadings and evidence to show that the appellant was the aggressor and in the process successfully rebutted the Appellant’s claims.
I agree with the conclusion of the learned trial Judge that the Appellant failed to prove his case against the Respondents.
For these and the fuller reason contained in the lead judgment of my learned brother TSAMMANI JCA, I also dismiss the appeal.