MOSES MAPUR MAVOLO & ANOR v. MONDAY MASOK
(2014)LCN/6921(CA)
RATIO
PRACTICE AND PROCEDURE: WHAT CONSTITUTE THE FORMULATION AN ISSUE FOR DETERMINATION
The law is well defined and settled in a number of cases of both this Court and the apex Court that issues are legal questions that arise from facts presented for a just determination of a case and not such that are conceived by a party or parties and submitted for determination. See Ito vs. Ekpe (2000) FWLR (Part 6) page 297 at 942 paragraph H.
Assuming without conceding that the trial Court did not consider all the issues submitted by the Appellants’ Counsel, such failure to consider all issues will only be of consequence if it occasioned a miscarriage of justice. In the case of Leventis vs. Akpu (2007) 6 SCNJ 242 at 255 – 256, the apex Court held thus:
“Although the Court of Appeal failed or neglected to pronounce on the failure of the respondent to plead the particulars of negligence, this failure did not occasion any miscarriage of justice that will warrant the dismissal of the suit on this ground …. What the appellate Court has to decide is whether the decision of the trial court was/is right….” Having dealt with the preliminaries points if I may say so, it is appropriate to now proceed and treat the sole issue for determination in this appeal. At the risk of being repetitive the issue is: “Whether in the light of pleadings and evidence adduced by both parties, the appellants have proved their claims on preponderance of evidence and are entitled to judgment as per the provisions of the Evidence Act, 2011.”
In determining the above issue set out supra, my first port of call is Section 136(1) of the Evidence Act, 2011 which provides thus: “136(1) The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other.”
The law is well settled and defined in a long chain of decided cases that he who asserts must prove. Per TIJJANI ABDULLAHI, J.C.A
