MOTHERCAT NIGERIA LIMITED & ANOR v. EVANGELIST DANIEL PETER AKPAN
(2019)LCN/12834(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/192/2017
RATIO
EVIDENCE: EVALUATION OF DOCUMENTARY EVIDENCE
“Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.” PER OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: WHETHER A DOCUMENTARY EVIDENCE MUST BE TENDERED BY ITS MAKER
“…a document must be tendered by its maker or else it will be declared a documentary hearsay, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438. Undeniably, the respondent, who tendered the medical report, was not the author of it howsoever. In this wise, he was not in a position to be cross-examined on it. The lower Court, with due respect, desecrated the law when it placed reliance on medical report, exhibit 7, in evidence as it is devoid of any probative value.” PER OBANDE FESTUS OGBUINYA, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“If the respondent’s right to fair hearing was not tramped upon by the lower Court, a fortiori that of the appellants who had no right of reply. Right to fair hearing is personal to a party. The appellants are crying more than the bereaved by raising the issue, In Adebayo v. A. G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished: The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.” PER OBANDE FESTUS OGBUINYA, J.C.A.
TORT LAW: ACTION FOR DETINUE
“To succeed in an action in detinue, the person, usually the plaintiff, must establish the fact that: (a) He is the owner of the chattel. (b) He has immediate right to possession to it. (c) The holder, (the defendant) is in actual possession of it. (d) He made a demand on the defendant to deliver it to him. (e) The defendant continues to hold unto it, without lawful justification, and failed to deliver it to the owner despite repeated demands, see Enterprise Bank Ltd. v. Aroso (supra).” PER OBANDE FESTUS OGBUINYA, J.C.A.
TORT LAW: NEGLIGENCE
“…Negligence, generally, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138. Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra). In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the Nigerian jurisprudence, see Agbonmagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra).” PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. MOTHERCAT NIG. LTD
2. LAMIDI RASAKI Appellant(s)
AND
EVANGELIST DANIEL PETER AKPAN Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment):
This appeal is an offshoot decision of the High Court of Akwa Ibom State, holden at Uyo (hereinafter addressed as the lower Court), coram judice: Augustine D. Odokwo, J., in Suit No. HU/420/2013, delivered on 4th July, 2016. Before the lower Court, the appellants and the respondent were the defendants and the plaintiff respectively.
The facts of the case, which transmitted into the appeal, are amenable to brevity and simplicity. The second appellant was an employee driver of the first appellant. On 4th February, 2013, the second appellant, while in control and management of the first appellant?s truck with registration No. OXA 483 JR, drove same recklessly and hit the appellant’s Mercedes Benz 200 car with registration No. BW 101 GGE at Sam Edet Street by Edet Akpan Avenue, Uyo, Akwa Ibom State. The occupants of the car sustained bodily harm. The appellants undertook, in writing, to treat the appellant and repair or replace the accidented car and took possession of same. The respondent was taken to the appellants’ private clinic, Sifon Clinic Limited, whereat he spent 76 days from 4th February, 2013 20th April, 2013.
After his discharge, he kept on visiting the hospital and St. Luke’s Hospital, Anua for medical review and check up because he had not recovered from the injuries, nervous shock and high blood pressure occasioned by the accident. Later on, the appellants failed to honour the undertaking/agreement whilst in possession of the car. Sequel to these, the respondent beseeched the lower Court, via a writ of summons filed on 15th July, 2013, and tabled against the appellants, jointly and severally, the following reliefs:
(a) An order, directing the defendants to honour their voluntary obligation as contained in their solicitor?s letter of 12th July, 2013 of paying his medical bills, tortuous claims and the sum of Two Million, Five Hundred Thousand Naira (N2,500,000.00) only for the purchase of a sound fairly used car of same quality as replacement for the claimant’s damaged Mercedes car with registration No. BW 101 GGE.
(b) N10,000,000.00 damages for the continued unlawful detention of the claimant?s Mercedes 200 with registration number BW 101-GGE from 4/2/2013 till date.
(c) N30,000,000.00 (Thirty Million Naira) only being tortuous claims for, injuries, nervous shock and high blood pressure (illness) sustained by the claimant during the accident.
(d) Cost of conveying his children to school by hired vehicle from the date of the accident i.e 4/2/2013, at N2,000.00 per day for five days amounting to N10,000.00 per week till the accidented vehicle is replaced.
(e) Payment of the sum of N10,000.00 per day being daily income of the claimant with effect from 4/2/2013 till judgment is delivered.
In reaction, the appellants joined issue with the respondent and denied liability by filing their statement of defence.
Following the denial and rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded two witnesses, PW1 and PW2, and tendered seven documentary evidence: exhibits 1-7. At the closure of the respondent’s, the appellants rested their case on that of the respondent’s. After that, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 4th July, 2016, found at pages 229-250 of the record, the lower Court granted the respondent’s claims in part.
The appellants were dissatisfied with the judgment. Hence, on 18th July, 2016, they lodged a 2-ground notice of appeal copied at pages 262 and 263 of the record. Subsequently, the appellants, with the leave of this Court, filed an amended notice and grounds of appeal on 10th January, 2018, hosting six grounds, wherein they prayed this Court for:
i. An Order allowing the appeal
ii. An Order setting aside the judgment of the Lower Court.
iii. An Order dismissing the claim of the plaintiff.
Thereafter, the parties filed and exchanged their briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 15th January, 2019.
During its hearing, learned counsel for the appellants, U. U. Bassey, Esq., adopted the appellants? brief of argument, filed on 10th January, 2018 and the appellants? reply brief, filed on 7th December, 2018, both deemed properly filed on 15th October, 2018, as representing his arguments for the appeal.
He urged the Court to allow it. Similarly, learned counsel for the respondent, G. A. Umoh, Esq., adopted the respondent’s brief of argument, filed on 13th November, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellants’ brief of argument, learned counsel distilled six issues for determination to wit:
(i) Whether the claimant proved negligence as pleaded by him in his statement of Claim so as to entitle him to his claims against the Defendants/Appellants.
(ii) Whether the failure by the trial Court to consider and evaluate the evidence of the Defendants/ Appellants on record extracted during cross-examination in its judgment did not render the judgment perverse which occasioned miscarriage of justice.
(iii) Whether the trial judge was right when he held that the claim of N2,500,000.00 (Two Million Five Hundred Thousand Naira) for the purchase of a sound fairly used car as replacement for the Plaintiff?s damaged Mercedes Car with Registration No. BW 101 GGE was not a claim in special damages and as a result awarded N1,500,000.00 (One Million Five Hundred Thousand Naira) as general damages/monetary compensation to the Claimant as the value of his vehicle.
(iv) Whether there is acceptable legal evidence for the award of N4,000,000.00 (Four Million Naira) to the Claimant for injuries, nervous shock and high blood pressure.
(v) Whether there is any legal basis for the award of N3,000,000.00 (Three Million Naira) for unlawful detention of the Claimant’s vehicle from 4/2/2013 till date of judgment.
(vi) Whether by deciding the issue of jurisdiction raised by the Defendants/Appellants without giving the parties opportunity to address the Court as earlier directed, the trial Court has not denied the Defendants/ Appellants fair hearing.
In the respondent’s brief of argument, learned counsel crafted three issues for determination, viz:
2.1 Whether the trial Court was not right in holding that Exhibits 8 and 6 being an agreement and further admission portray express admission of liability/negligence and the Appellants/Defendants are stopped from reneging afterward?
2.2 Whether the trial Court was not right in awarding monetary damages/cost for replacement of damaged Mercedes Car, injuries and unlawful detention of Claimant?s Mercedes 200 from 4/2/2013 till date of judgment?
2.3 Whether the learned trial Judge was not right when he resolved the issue of jurisdiction raised by the Appellants/Defendants counsel for the first time in his rejoinder on point of law without hearing further from parties?
A close look at the two sets of issues shows that they are identical in substance. Indeed, the respondent?s issues can, conveniently, be subsumed under the appellants?. For this reason of sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owner of the appeal.
Argument on the issues:
Issue one
Learned counsel for the appellants submitted that the respondent failed to lead evidence to prove the specific act of negligence he pleaded. He relied on Abubakar v. Joseph (2008) 6 SCNJ 226; Otaru v. Idris (1999) 4 SCNJ 156. He noted that the appellants did not admit the negligence. He stated that the evidence elicited from cross-examination of the respondent’s witnesses established their defence of non-liability. He cited Akomolafe v. Guardian Press (2010)/SCNJ 283. He observed that the respondent?s vehicle license and road worthiness had expired at the time of the accident. He asserted that exhibits 6 and 8 were not proofs of negligence against the appellants as they were not sketch maps made by appropriate persons. He described negligence as a question of fact not law. He referred to Kalla v. Jarmakarie Transport Ltd. (1961) All NLR. He posited that exhibits 6 and 8 must be given their ordinary meanings. He relied on Nigerian Army v. Aminu Kano (2010)/SCNJ 250. He reasoned that the two exhibits were never acceptance of liability, but showed treatment of the respondent on humanitarian grounds. He described exhibit 6 as an admission against interest. He cited Onyenge v. Ebere (2004) 6 SCNJ 126. He concluded that a party who failed to prove negligence would not be entitled to damages. He cited Abubakar v. Joseph (supra); Otaru v. Idris (supra); Anyah v. Concorde Hotel (2002) 12 SCNJ 148.
For the respondent, learned counsel contended that the lower Court was right to hold that exhibits 6 and 8 were admission of liability/negligence by the appellants. He stated the meaning of negligence as noted inSalako v. The State (2007) LPELR 4569 (CA). He insisted that negligence meant negligence in civil matters. He cited Chukwuma v. Awoh (2018) LPELR 44830 (CA). He observed that the appellants did not deny exhibit 8 and admitted facts needed no poof. He referred to Chukwu v. Akpelu (2013) LPELR 21864 (SC). He asserted that exhibit 6 made by a lawyer, could not alter exhibit 8 as the former spoke for itself. He relied on Akanmode v. Dino (2008) LPELR 8405 (CA); Governor of Ogun State v. Coker (2008) All FWLR (Pt. 406) 1900. He reminded the Court that counsel’s address would not take the place of pleadings and evidence. He cited Tafida v. Garba (2013) LPELR 22076 (CA). He posited that oral evidence, including those from cross-examination, would not vary, alter, or add to the content of exhibit 8. He cited Akanwa v. Ogbaga (2016) LPELR 41054 (CA); Ukaobasi v. Nwabueze (2017) LPELR 42420 (CA). He concluded that the appellants were bound by the exhibit 8. He referred to Osun State Government v. Dalami (Nig.) Ltd. (2007) LPELR ? 2817 (SC).
On points of law, learned counsel for the appellants submitted that exhibits 8 and 6 did not constitute admission of negligence because admission must be direct, positive and unequivocal. He relied on Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) 2 NWLR (Pt. 55) 110/(1987) All NLR 309; A.T.M Plc. v. B.V.T. Ltd. (2007) 1 NWLR (Pt. 1015) 259; Eigbe v. N.U.T (2007) 15 NWLR (Pt. 1056) 421. He listed the three ingredients of negligence as noted in UTBN v. Ozoemena (2007) 3 NWLR (Pt.1022) 448. He stated that the entire pleading/document must be looked at in order to discover if the party intended to make admission. He cited NBC Plc. v. Oboh (2000) FWLR (Pt. 29) 2379; Mobil Producing Nig. Unltd v. Assan (2002) FWLR (Pt. 107) 1196; Titiloye v. Olupo (1991) 9-10 SCNJ 122; Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd (1982) All NLR 229. Egbunike v. A.C.B. Ltd (1995) 2 SCNJ 58. He took the view that the respondent could not rely on estoppel because he did not specifically plead it. He referred to Abisi v. Ekwealor (1993) 7 SCNJ 193; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598; Odadhe v. Okujeni (1973) 7 NLR 803; Clay Ind. (Nig.) Ltd. v. Aina (1997) 7 SCNJ 491; Obanye v. Okwunwa (1930) 10 NLR 8; Sowa v. Amachree (1933) 11 NLR; Dedeke v. Williams (1944) 10 WACA 164.
Issue two:
Learned counsel for the appellants described when a decision would be perverse. He cited Udengwu v. Uzuegbu (2003) 7 SCNJ 145; Uka v. Irolo (2002) 7 SCNJ 137. He noted that the lower Court wrongly ignored the evidence on who was at fault. He relied on Otaru v. Idris (supra). He said that the evidence of PW2 supported the appellants’ defence on the cause of the accident. He repeated that evidence elicited from cross-examination could establish a defence. He cited Akomolafe v. Guardian Press (supra). He maintained that the fact of negligence, as pleaded by the respondent, was never given in evidence.
On behalf of the respondent, learned counsel submitted that the lower Court was right in making the awards as the facts were admitted. He referred to Essien v. College of Education Oro (2014) LPELR ? 23784 (CA). He insisted that the lower Court had the discretion to grant the reliefs after evaluation of the evidence. He cited Ejike v. Onuzulike (2013) LPELR 21220 (CA).
Issue three:
Learned counsel for the appellants submitted that respondent?s claim of N2.5m as the cost of the car was not a claim in general damages. He relied on Healthcare Products (Nig.) Ltd. v. Bazza (2003) FWLR (Pt. 162) 1937. He asserted that the claim was one of special damage. He cited Ordia v. Piedmont (1995) 2 SCNJ 175 at 177. He stated that special damages must be strictly pleaded and proved. He referred to Badmus v. Abegunde (1999) 7 SCNJ 96; Adim v. NBC Ltd. (2010) 4 SCNJ 222. He took the view that the respondent failed to prove the value of the car. He wondered why the lower Court awarded N1.5m as the cost of the car instead of the claimed N2.5m in the absence of contrary evidence as it claimed. He insisted that special damage must be proved even if not challenged. He relied on Adim v. NBC Ltd. (supra). He concluded that parties would not compromise on issue of law. He referred to Akaninwo v. Nsirim (2008) 1 SCNJ 279.
For the respondent, learned counsel?s arguments on issue two touched on the issue.
Issue four:
Learned counsel for the appellants submitted that the lower Court was wrong in granting the claim for injuries, nervous shock and high blood pressure. He described exhibit 7, the medical report, as inadmissible because, its maker, Dr. Umoh Bassey, an expert, was not called and it was denial of fair hearing and under the proceedings. He relief on A.-G, Fed. v. Abubakar (2007) 4 SCNJ 472; Audu v. FRN (2013) 1 SCNJ 111. He observed that the conclusion of the lower Court on exhibit 7, that respondents had high blood pressure and severe pain, was speculative and wrong in law. He relied on UTB v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448. He explained when the opinion of expert would be necessary. He referred to A.-G., Fed. v. Abubakar (supra). He stated that the exhibit 7 did not show that the respondent had injury or nervous shock arising from the accident. He claimed that exhibit 7 wrongly brought in a fresh cause of action. He cited Gowon v. Ike-Okongwu (2003) 1 SCNJ 453.
On the part of the respondent, learned counsel?s argument on issue two dovetailed with the issue.
On points of law, learned counsel for the appellants argued that the respondent did not produce evidence of treatment such as receipts of payment.
He cited Bakare and G. Cappa Ltd. v. Jelkh (1968) 1 NLR 168.
Issue five
Learned counsel for the appellant contended that the lower Court made inconsistent findings that the car was taken by the appellants and that it was unlawfully detained. He urged the Court to set them aside as it was blowing hot and cold. He referred to Afolabi v. Western Steel (2012) 7 SCNJ 48; A.-G, Rivers State v. A.-G., Akwa Ibom State (2011) 3 SCNJ 1; Agidingbi v. Agidingbi (1996) 6 SCNJ 105. He enumerated the conditions for action in detinue and reasoned that the respondent did not fulfill them. He cited Saliba v. Roda Yassin (2002) 2 SCNJ 14.
On behalf of the respondents, learned counsel?s arguments on issues one and two covered the issue.
Issue Six
Learned counsel for the appellants submitted that the lower Court denied them fair hearing when it ruled on the competency of the writ of summons without the respondent’s response. He explained the purport of fair hearing as noted in UBN v. Astra Builders (2010) 2 SCNJ 84. He posited that if the respondent had, within the 7 days given to him, responded, the appellants would have exhibited their writs to show that they were not signed. He persisted that if the writ was signed, the respondent would have, based on common course of natural events, responded as ordered by the lower Court. He cited Section 167 of the Evidence Act, 2011.
On the side of the respondent, learned counsel postulated that it was not mandatory for the respondent to reply as it was frivolous. He cited Dada v. Dosunmu (2006) LPELR 909 (SC); Asaluola v. INEC (2008) LPELR 3810 (CA). He reasoned that the lower Court performed its duty of doing justice. He cited Bajoga v. Government, FRN (2007) All FWLR (Pt. 394) 273. He added that the appellants did not show that they suffered miscarriage of justice by the non-filing of the reply by the respondent.
Resolution of the issues
An indepth study of the issues, amply, discloses that documentary evidence, furnished before the lower Court, form an integral part of the casus belli in this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.
In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will kick off with issue one. The kernel of the issue is plain: that the respondent did not prove negligence against the appellants to entitle him to his claims. Put simply, the appellants? coup de main orbits within the slim perimeter of proof or disproof of negligence before the lower Court.
By way of prefatory remarks, aimed at understanding the purport and attributes of negligence, negligence, generally, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138. Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra).
In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the Nigerian jurisprudence, see Agbonmagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra).
Now, the appellants’ chief grievance is that the respondent failed to prove the specific act of negligence, ‘That the said driver left his own side of the road to hit him on his side of the road at Sam Edem Junction by Edet Akpan Avenue’, as asserted in his pleading: amended statement of claim. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416.
I have, in due fidelity to the dictate of the law, visited the record, the spinal cord of the appeal, at the residence of the statement of oath of Mrs. Helen Victor Okuku, PW2, which colonises pages 11 of it. The sworn deposition, on its adoption in the bowel of the Court, metamorphosed into her evidence in-chief, see GE Int.l Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304. In paragraph 4 of the examination-in-chief, PW2, testified, inter alia, that: Lamidi Rasaki left his own side of the road and hit the car of the claimant on the claimant?s side of the road at Sam Edem by Edet Akpan Avenue and damaged the claimant’s car. At page 220 of the record, the PW2 passed through the crucible of cross-examination by the appellants? counsel. It is startling that, the appellants, through counsel, in their infinite wisdom, failed/neglected to cross-examine the witness on the critical and decisive point. The object of cross-examination is to test the credibility of an opponent?s case, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460.
Indisputably, cross-examination occupies a kingly position in our adversarial system of adjudication. It has been described as a ‘noble art’ which ‘constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party’, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Indeed, if well utilised, it has the potential to perforate an opponent?s case. It is settled law, that where a party fails to cross-examine a party on a point, he is deemed to have admitted it, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 181) 338; Nwokocha v. A.-G, Imo State (2016) 8 NWLR (Pt. 1513) 141. Thus, the dire consequence of the appellants? neglect to cross-examine PW2 on the crucial piece of evidence is an undiluted admission of it. It flows, that the appellants? failure to cross-examine the witness on the pungent evidence, which snowballed into admission, punctures their learned counsel’s seemingly alluring submission on the point. In other words, the respondent proved the specific act of negligence, which occasioned the accident, against the appellants.
Besides, it is decipherable from the record, the keystone of the appeal, that the appellants, on their own volition, rested their case on that of the respondent. Put differently, even though they filed pleading, amended statement of defence, but they called no witness to adduce evidence in proof of it. Unarguably, the appellants acted in due loyalty to the law. However, they took a big risk and gamble. By that procedural strategy, they accepted, hook, line and sinker, the rebuttable presumption of negligence pleaded by the respondent. In effect, they abandoned their pleading and did not join issue on the respondent on the allegation of negligence against them, see Eseigbe v. Agholor (1993) 12 SCNJ 82; Ighreriniovo v. S.C.C. (Nig) Ltd (2013) 10 NWLR (Pt. 1361). In sum, the appellants’ voluntary employment of the adjectival style of resting their case on that of the respondent?s constitutes another serious coup de grace in their stance on the issue.
In the light of this brief legal anatomy of the issue, the lower Court?s finding that the respondent proved negligence against the appellants is unassailable. It will reek of judicial sacrilege to tinker with a finding that has not fractured the law in any manner. In the end, I have no option than to resolve issue one against the appellants and in favour of the respondent.
That brings me to the settlement of issue two. The issue is canalised within a narrow scope. It chastises the lower Court?s failure to evaluate the evidence of the appellants which failure rendered the judgment perverse. Since perversion is the cynosure of the issue, it is imperative to appreciate its purports. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179.
To begin with, it can be gleaned from the record, that the PW1 and PW2 were quizzed by the appellants, after their examination in-chief, as manifest at pages 216-218 and 220 of it respectively.
The products/offspring of these questions, are, in the eyes of the law, evidence. Those pieces of evidence, elicited under the cross-fire of cross-examination, are potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.
Now, the lower Court’s judgment, sought to be impugned, monopolises pages 229-249 of the record: the bedrock of the appeal. I have perused it with the finery of a tooth comb. I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision displayed above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is marooned in the ocean of perversity. The judgment of the lower Court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It treated the evidence of the appellants, which they garnered from cross-examination, as weak/impotent to discredit the evidence of the respondent. One illustration is located at page 247 of the record. The appellants starved this Court of an instance the lower Court ignored the appellants? evidence gotten from the terse cross-examination.
By the same token, the judgment did not occasion a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi v. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332. Amazingly, the appellants were stingy in pointing out how the judgment, which, duly, accommodated their evidence obtained from cross-examination, inflicted a miscarriage of justice on them.
It stems from this juridical survey, that the judgment of the lower Court is not, in the least, trapped in the intractable vortex of perversion nor does it smell of any miscarriage of justice. Put bluntly, the charges of perversity and miscarriage of justice levelled against the judgment cannot be sustained. It is not guilty of them. On this score, I dishonour the enticing invitation of the appellants to crucify the judgment of the lower Court on the undeserved altar/shrine of perversity and miscarriage of justice. In the result, I resolve issue two against the appellants and in favour of the respondent.
Having dispensed with issue two, I will proceed to deal with issues three and five. A careful look at the two issues, clearly, shows that they are intertwined in that they share a common target: to deflate the awards made in respect of the respondent’s mercedes car. In view of this interwoven relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their consideration.
A clinical examination of the respondent’s action, which gave birth to the appeal, vividly, reveals that it is amphibious in nature in the realm of tort. It is founded in the tort of negligence, which I had dealt with. It is also, deeply rooted in detinue which relates to the two issues under consideration.
It is foremost to appreciate the import and features of the tort of detinue. Detinue connotes the wrongful detention of a person’s chattel after the holder/person, who is in actual possession of it, has refused to deliver it up on demand by the owner/person who has an immediate right to its possession.
A person who has a right of action in detinue has three optional remedies, which trace their invention to Diplock, LJ., in General Finance and Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 664 at 650-651, open to him: (a) claim for value of the chattel and damages for its detention; (b) claim for the return of the chattel and damages for its detention or (c) claim for the return of the chattel, or its value as assessed, and damages for its detention, see Widman & Walters (Nig.) Ltd. v. Mojibolu Oluwa (1968) 1 All NLR 383; Ordia v. Piedmont (1995) 2 SCNJ 175; Iheanacho v. Uzochukwu (1997) 1 SCNJ 117; Oshevire Ltd. v. Tripoli (1997) 4 SCNJ 246; NACENN (Nig.) Ltd. v. B.A.P. Ltd (2011) 11 NWLR (Pt. 1257) 193; Enterprise Bank Ltd. v. Aroso (2014) 3 NWLR (Pt. 1394) 256.
To succeed in an action in detinue, the person, usually the plaintiff, must establish the fact that: (a) He is the owner of the chattel. (b) He has immediate right to possession to it. (c) The holder, (the defendant) is in actual possession of it. (d) He made a demand on the defendant to deliver it to him. (e) The defendant continues to hold unto it, without lawful justification, and failed to deliver it to the owner despite repeated demands, see Enterprise Bank Ltd. v. Aroso (supra).
For a dispassionate consideration, I have married the evidence, offered by the respondent, with the ingredients of proof of detinue catalogued above. To start with, a peep into exhibits 4 and 5, the Vehicle Licence and National Certificate of Road Worthiness respectively, amply, demonstrates that the mercedes car was registered in the name of the respondent. In the view of the law, registration of vehicle in the name of a person raises the rebuttable presumption that he is the owner, see Odebunmi v. Abdullahi (1997) 2 SCNJ 112; Ibeanu v. Ogbeide (1998) 9 SCNJ 77.
The appellants denied the Court of any evidence to neutralise the presumption. In the same vein, the respondent, whom the law has adjudged to be the presumed owner, has, in the glaring absence of any contrary evidence, an immediate right to possession of the car. Exhibit 8, authored by a staff of the appellants, is a concrete and invincible testimony that the appellants took possession of the respondent’s mercedes car for replacement or repairs. At once exhibits 1 and 2 are indelible evidence that the respondent made demands for the return of the car, but to no avail. Thus, the respondent proffered, in the sanctuary of the lower Court, pieces of pungent evidence of detinue against the appellants.
In a spiritual bid to castrate the respondent’s case and escape liability, the appellants weaved some defences to derobe exhibits 8 and 6, copied at pages 72, 23 and 259 of the record respectively, of any efficacy. Exhibit 6 is the appellants’ reply, through counsel, to the respondent’s exhibits 1 and 2. Exhibit 8 is a hand written undertaking by the first appellant to the respondent made on the fateful day: 4th February, 2013. The appellants plucked out ‘humanitarian considerations’, in grained in exhibit 6, as a ground to avert the caustic effects of exhibits 6 and 8 on them. The Court, with due deference to learned appellants’ counsel, cannot be caged to that scooped phrase as a mitigating or exemption clause for them. The reason is not far-fetched. The law gives the Court the nod to read a document holistically so as to reach and gather harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98;
Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimrah (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209. I will pay due obeisance to this legal commandment, in the interpretation of documents, in order not to insult the law.
I have, in keeping with the injunction of the law, given a microscopic examination to the two exhibits: 6 and 8. Exhibit 8, which predated exhibit 6, in chronological age, is categorical on the intention of the appellants: to treat the respondent of the injuries sustained in the accident and replace or repair his damaged car. An all-embracing consideration of exhibit 6 reveals that it buttresses the appellants? promises to the respondent as entrenched in exhibit 8. Put the other way round, a communal reading of the two documents, to my mind, portrays the appellants? promises as a classic exemplification of admission. In law, admission: ‘is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action’, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (supra); N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391.
By dint of this absolute admission, the appellants, by their own ipse dixit, conceded that they were liable to replace or repair the respondent?s damaged car. In the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224. The lower Court, acting ex debito justitiate, merely endorsed the admission which binds the appellants in law. In essence, the defence of ‘humanitarian considerations’, erected by the appellants to avoid the trap of justice, is lame in the presence of their own admission.
As already noted, after due consultation with the law, the respondent, is entitled to claim for the value of his detained car and damages for its unlawful confiscation. It follows, that the lower Court did not injure the law when it made the twin awards: for the value of the damaged car and its illegal confinement by the appellants. In effect, all the strictness, which the learned appellants? counsel rained against the awards, pale into insignificance. As a result, I will not hesitate to resolve the conflated issues three and five against the appellants and in favour of the respondent.
I now reverse to handle issue four. The issue falls within a slim scope. The meat of issue is not a moot point. It castigates the lower Court’s grant of damages to the respondents for injuries, nervous shock and high blood pressure sustained during the accident.
The appellant’s major grouse is hedged on the lower Court?s admission of exhibit 7. Exhibit 7 is a medical report issued, on 18th February, 2014, in favour of the respondent by one Dr. Umo Bassey. The appellants, through counsel, greeted its admission with a stiff opposition on the ground that it was tendered by PW1, the respondent, who was not its maker. Learned appellants’ counsel resurrected the protestation against the admission of the document under this issue.
Incontestably, a document must be tendered by its maker or else it will be declared a documentary hearsay, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438. Undeniably, the respondent, who tendered the medical report, was not the author of it howsoever. In this wise, he was not in a position to be cross-examined on it. The lower Court, with due respect, desecrated the law when it placed reliance on medical report, exhibit 7, in evidence as it is devoid of any probative value.
Be that as it may, I have given merciless scrutiny to the other pieces of evidence offered by the respondent in the bowel of the lower Court. In the respondent?s evidence in-chief, which is wrapped between pages 104-107 of the record, he testified that the accident caused him fractures of the shoulder bones and ribs, severe injuries, nervous shock, high blood pressure and pains. His testimony was not contradicted under the cross-examination. The law gives a Court the right to act on unchallenged evidence, see Oando (Nig.) Plc v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374.
In addition, exhibits 1 and 2 made claims for payment of compensation/damages for pains, inter alia, flowing from the accident. In Eseigbe v. Agholor (1993) 12 SCNJ 82 at 93, Belgore, JSC (as he then was) incisively, declared
Once there is evidence of injury, pain, discomfort and permanent scarring and pain, even though those items are not quantified (sic) in money, the plaintiff is entitled to reasonable general damages.
See also, Ighreriniovo v. S.C.C. (Nig) Ltd., (supra). This magisterial pronouncement, on the ex cathedra authority, with due deference, exposes the poverty or emptiness of the learned appellants’ seemingly dazzling contention on the issue. It is disabled and cannot fly.
At any rate, the appellants’ undertaking, ?to treat Evangelist Daniel Akpan who is involved in an accident, as enshrined in exhibit 8, still chases and haunts them. I had, at the cradle of this judgment endorsed, in toto, the lower Court’s finding that the purport of the undertaking was a binding admission. There are no extenuating circumstances, availed this Court, that will propel and compel me to disturb that solemn confirmation reached with the aid of the law. The undertaking is still binding on the appellants. In a nutshell, the lower Court?s grant of the claim is not an affront to the law to warrant the intervention by this Court. On this premise, I resolve issue four against the appellants and in favour of the respondent.
It remains to thrash out issue six. The heart of the issue centres on fair hearing. It accuses the lower Court of violation of the appellants? right to fair hearing as guaranteed under Section 36(1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1. Due to its Olympian status in the issue, it is germane to display some of the notable features of fair hearing- a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity/root to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the twin concrete pillars of natural justice to wit: audi alteram parterm-hear the other side and nemo judex in causa sua ? no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases. It follows, that fair hearing is, totally, divorced from correctness of a decision.
It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, seeO.O.M.F. Ltd. v. NACB (2008) 12 NWLR (Pt.1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364)1; Mpama v. FBN Plc (supra); Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480.
The marrow of the appellants’ quarrel is that the lower Court curtailed their inviolable right to fair hearing when it ruled that the respondent?s writ of summons was competent without the respondent?s reaction to their objection. It is discernible from the record, the touchstone of the appeal, that the respondent was allotted seven (7) days to respond to the appellants? objection, but he failed to do so. Put bluntly, it was the respondent who ought to complaint against the decision of the lower Court.
In the first place, the respondent, whose right to reply was foreclosed, cannot successfully claim denial of fair hearing. The reason is this. The lower Court accorded him the opportunity to offer his response but he failed to take advantage of it. The duty of a Court is to provide a clement/hospitable environment for a party to ventilate his case and where he fails, he is caught in the miasma of waiver of his right to fair hearing, see Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 52; NACB Ltd v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Darma v. ECO Bank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1579) 272; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450. If the respondent’s right to fair hearing was not tramped upon by the lower Court, a fortiori that of the appellants who had no right of reply.
Right to fair hearing is personal to a party. The appellants are crying more than the bereaved by raising the issue, In Adebayo v. A. G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished:
The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
The appellants’ inalienable right to fair hearing was not infringed on by the lower Court’s judicious exercise. Fair hearing, therefore, is not available to them and they cannot harness/reap from the beneficent provision of Section 36(1) of the Constitution, as amended. In sum, I resolve issue six against the appellants and in favour of the respondent.
On the whole, having resolved the six issues against the appellants, the destiny of the appeal is obvious. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, I affirm the judgment of the lower Court, delivered on 4th July, 2016, which granted the respondent?s claims in part. The parties shall bear the respective expenses incurred in the prosecution and defence of the ill-fated appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA. He has painstakingly the six issues against the Appellants. I also dismiss the appeal.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the advantage of reading the draft of the leading judgment of my learned brother, OBANDE F. OGBUINYA, JCA just delivered. I agree with the reasoning and conclusion reached thereat, that the appeal is moribund and should be dismissed. I too dismiss the appeal and abide with the consequential orders contained in the lead judgment.
Appearances:
U. U. Bassey, Esq.For Appellant(s)
G. A. Umoh, Esq. with him, O. B. Akpan, Esq., I. Inyangmme, Esq., Linus Utuk, Esq., Edima Akpan, Esq. and E. Umoh, Esq.For Respondent(s)
