MR. LAWRENCE AGUGU v. RAMATU BUHARI & ANOR
(2016)LCN/8547(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of April, 2016
CA/K/34/2010
RATIO
APPEAL: CAN AN APPELLATE COURT REFRAME THE ISSUES FORMULATED BY PARTIES
An appellate Court can and is entitled to reframe the issue or issues formulated by a party or parties in order to give it precision and clarity if it appears that they are awkward or not well framed. The purpose of reframing issue or issues is to achieve a just and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. Okoro v. State (1988)5 NWLR (Pt. 94) 255; Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) 177. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; HOW SHOULD THE COURT ASSESS EVIDENCE BEFORE IT
In Bello v. The State (2007) 10 NWLR (Pt. 1042) P. 554 @ 582, this Court stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. There must be stated on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See also Alake v. State (1992) 9 NWLR (Pt. 265) P, 260. In the civil case of Ilori v. Tella (2006) 18 NWLR (Pt. 1011) P. 268 @ 291 the Court of Appeal held that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version of evidence to the other. See also Oyekola v. Ajibade (2001) 17 NWLR (Pt. 902) P.356 and Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) P.2419.
In the evaluation of evidence, the trial judge has to consider or give due regard to, among other things the following:
(i) Admissibility of the evidence
(ii) Relevancy of the evidence
(iii) Credibility of the evidence
(iv) Conclusiveness of the evidence, and
(v) probability of the evidence in the sense that it is more probable than the evidence of the other party
(vi) Finally, the trial judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other.
See Mogaji v. Odofin (1978) 4 SC 91 and Adeyeye v. Ajiboye (1937) 3 NWLR (Pt. 61) P.432. PER IBRAHIM SHATA BDLIYA, J.C.A.
APPEAL: DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THIS DUTY
It is worthy of note that the evaluation of evidence and the ascription of value or quality thereto are the preserve of the trial judge who would have had the singular opportunity of seeing, hearing and observing the witness(s) giving evidence. In Yadis (Nig) Ltd v. G.N.I.C Ltd (2007) 11 NWLR (Pt. 1055) P. 587 @ 607, it was held that it is the primary duty of the trial Court or trial judge to evaluate evidence, make findings and apportion probative value thereto, not for an appellate Court to do so, except where the trial Court failed to do so or it was improperly carried out. In Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1125) P. 659 @ 615, it was held that the finding of facts, evaluation of evidence, and the ascription of probative value thereto are the exclusive preserve of the trial Court or trial judge as the case may be. Where a trial Court properly evaluated the evidence before it and ascribed probative value thereto, an appellate Court has no business to interference with such evaluation and ascription of probative value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it does not agree with the way and manner it was carried out by the trial Court. See NEPA v. Adesanju (2002) 17 NWLR (Pt. 797) P, 38 and Ndidi v. State (2007) 13 NWLR (Pt. 1052) P. 633. PER IBRAHIM SHATA BDLIYA, J.C.A.
PROCEDURE: EFFECT OF AN AMENDED STATEMENT OF CLAIM
I agree with learned counsel to the appellant that a statement of claim which has been amended is no longer alive in the proceedings of the Court. What is alive and valid is the amended statement of claim. This position of the law has been stated in the cases of Osho v. APC (1998) 6 SCNJ P. 139 @ 151 and Amanambu v. Okafor (1966) 1 All NLR P. 205. PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
MR. LAWRENCE AGUGU Appellant(s)
AND
1. RAMATU BUHARI (Substituted By Mrs. Fausat Modupe Buhari
2. THE DISTRICT HEAD WAJE LAND OFFICE, KANO Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment).: This is an appeal against the judgment of the Kano State High Court (the lower Court) delivered on the 8th day of June 2010 by BAYERO, J. in suit No. K/168/2007. The events and or facts culminating to the appeal to this Court are simple and straightforward. The 1st respondent (the plaintiff) at the lower Court asserted that her property No. 13 Odutola Street, Sabon Gari Kano, was sold to the appellant (defendant at the lower Court) without her consent or authority. That the documents of title were fraudulently obtained to effect the transfer of title documents to the respondent.
?On the other hand, the appellant asserted that the 1st respondent sold the house to him and he paid for it whereby the title documents were given to him by the 1st respondent. That thereafter, he took possession of the house and was collecting rents when the 1st respondent instituted an action against him at the lower Court denying selling the house to him. Pleadings were filed, issues joined and the matter proceeded to trial. After the evidence of witnesses have been taken, and addresses of
1
learned counsel to the parties, the learned judge of the lower Court delivered his judgment on the 8th of June, 2010, granting all the reliefs sought by the 1st respondent. Dissatisfied with the judgment of the lower Court, he appealed to this Court vide Notice and grounds of appeal filed on the 8th September, 2010, which was amended on the 25/2/2015, but deemed filed on the 5th of May, 2015.
?The appellant’s brief of argument was filed on the 9th of June 2015, wherein 6 issues have been culled from the grounds of appeal on page 3 thereof. The 1st respondent filed brief of argument on the 3rd of December, 2015, wherein the 8 issues contained in the appellant’s brief of argument were adopt on page 3 thereof. A Reply brief was filed by the appellant on the 23rd day of December, 2015. The appeal was argued on the 29th of February, 2015 whereat, learned counsel to the appellant, Uzuegbu Esq., adopted the brief of argument and did urge the Court to allow the appeal, and set aside the judgment of the lower Court. Abere Esq., for the 1st respondent adopted the brief of argument and urged the Court to dismiss the appeal and affirmed the judgment of the lower
2
Court.
An appellate Court can and is entitled to reframe the issue or issues formulated by a party or parties in order to give it precision and clarity if it appears that they are awkward or not well framed. The purpose of reframing issue or issues is to achieve a just and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. Okoro v. State (1988)5 NWLR (Pt. 94) 255; Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) 177.
The issues formulated by both learned counsel in their respective brief of arguments are hereunder compressed thus:
(1). Whether the learned trial judge was not wrong when he failed to dismiss the 1st respondent?s claims having regard to the evidence adduced which are at variance with the pleadings (grounds 6, 9, and 12 of the Amended Notice of appeal).
(2). Whether the learned trial judge of the lower Court properly evaluated the evidence adduced before it in arriving at his decision
3
granting the 1st respondent?s claims? (Grounds 5, 7, 8, 10 and 13).
(3). Whether the learned trial judge was right in awarding the sum of six million naira (N6, 000,000.00) being general and special damages to the 1st respondent (ground 2).
(4). Whether the learned trial judge of the lower Court was right when he entered judgment in favor of the 1st appellant based on a wit of summons and statement of claim of 29th March 2007, which was amended? (ground 11).
RESOLUTION OF ISSUES
Issues 1 and 2 taken together, then issues 3 and 4 respectively.
ISSUES 1 AND 2
Issues 1 and 2 are intertwined or overlapping such that one cannot be resolved without delving into the other. For this reason, the 2 issues can be conveniently taken and resolved together. Basically, the 2 issues questioned the correctness or otherwise of the lower Court’s decision in granting the relief sought by the 1st respondent having regard to the evidence adduced, which have not been properly evaluated by the learned trial judge in arriving at his decision. Uzuegbu Esq., who settled the appellant?s brief of argument, referred to Sections 131(1) (2); 132
4
and 133 of the Evidence Act and submitted that he who asserts must prove by credible evidence what has been asserted. In view of the foregoing principles of law, counsel submitted that the 1st respondent (as plaintiff) had the onus of proving that the appellant and unknown persons used fraudulent title documents in transferring her title in property No. 13 Odutola Street, Kano to themselves. That the allegation of obtaining and using fraudulent documents as averred in Paragraphs 8, 9 and 10 of the Amended statement of claim, tantamount to criminal allegation which must be proved beyond reasonable doubt. That the allegation of fraud must not only be pleaded with particulars, but be proved strictly as required in law.
?Learned counsel further contended that the evidence of the appellant as DW1 at the lower Court that the 1st respondent signed the Deed of Assignment and the change of ownership document have not been controverted by the respondent since the failure of the 1st respondent to testify before the lower Court is fatal to her case, being a vital witness. It has been further contended that the learned trial judge of the lower Court erred in law
5
when he held that the evidence of the 1st respondent have not been challenged nor controverted by the appellant. That the learned trial judge placed the burden of proof on the appellant rather than on the 1st respondent who asserted that her property was fraudulently sold to the appellant.
Counsel further argued that having regard to the nature of the claims of the 1st respondent, she ought to have given evidence to controvert the evidence of DW1 and DW2 who were eye witnesses to the transfer of title in respect of the disputed property. The case of Omotayo v. State (2013) 2 NWLR (pt. 1338) P. 235 @ 251 cited to buttress the point that failure to adduce vital evidence is fatal to the case of the party who ought to have testified at the trial. Counsel referred to the evidence of PW1-PW5, and submitted that by the evidence of these witnesses, the 1st respondent did not prove that the appellant and other unknown persons used false and fraudulent documents in transferring title to the appellant. That if the learned trial judge had considered the evidence of the parties, he would have realized that the 1st respondent did not prove her claims on the balance of
6
probability, rather the evidence preponderates towards the appellant.
On issue 2, learned counsel referred to the evidence of PW1-PW5, vis-a-vis that of DW1 and DW2 and submitted that had the learned trial judge properly evaluated same, he would not have arrived at the erroneous decision that the 1st respondent had proved her case and granted all the reliefs sought. That the decision of the lower Court is perverse because same cannot be supported by the evidence adduce before it.
Specifically, learned counsel referred to the evidence of PW4, and submitted that the witness contradicted herself in material particulars rendering the entire evidences unreliable. That had the learned trial judge properly evaluated evidence he would not have ascribed probative value thereto. That the failure of the lower Court to reject the evidence of PW4 being unreliable had led to an erroneous decision occasioning a miscarriage of justice to the appellant. Counsel also referred to the evidence of PW5 that the property was sold by Jamila Buhari, but the 1st respondent in the pleadings averred that unknown persons sold the property fraudulently by using fake or
7
false documents. That if the learned trial judge had adverted his mind to the evidence of PW5, he would have realized that a known person sold the house to the appellant, not unknown persons as alleged by the 1st respondent.
On the evidence of DW1 and DW2, counsel pointed out that since the 1st respondent did not testify at the trial, the learned trial judge ought to have accepted same for there was no contrary evidence before the Court. That evidence which has not contradicted is reliable and ought to have been relied on by the lower Court in arriving at a decision. The case of Mainage v. Gwamna (2004) All FWLR (Pt. 222) P.1617 @ 1626 cited to reinforce the submissions supra. On the need for a trial Court to evaluate the evidence adduced before ascribing probative value, counsel cited Onisodu v. Elewaju (2006) All FWLR (Pt. 328) P. 676 @ 683 to buttress the submissions supra. counsel did urge this Court to evaluate the evidence adduced at the lower Court in order to arrive at a just decision. The case of Olaetoka v. Ajia (2006) All FWLR (Pt. 321) P. 1312 @ 1323 cited to buttress the submission supra. In conclusion counsel urged this Court to resolve
8
this issue in favour the appellant.
For the 1st respondent, Abere Esq., submitted that what was in dispute at the lower Court was whether there was sale of house No. 13 Odutola street, Sabon Gari Kano or not by the real owner, (the 1st respondent) to the appellant. That the onus of proof in such a case is on the balance of probability or on the preponderance of evidence. The cases of Eya & Ors v. Olopade & Anor (2011) All FWLR (Pt. 584) P. 28 @ 48; Elias v. Omo-Bare (1982) 5 SC P.25; Odulaja v. Haddad (1973) 11 SC 357 and Woluchem v. Gudi (1981) 5 SC P. 291 cited to buttress the submission supra. Counsel contended that the respondent in Paragraphs 8, 9 and 10 of the amended statement of claim made allegations of fraud which has been particularized, but the appellant failed to deny same.
?As to the signatures on the Deed of Assignment; Application for transfer of Right of occupancy; Re-application for change of ownership; Application for Re-issuance of certificate of occupancy and Affidavit for loss of Allocation paper, Counsel contended that the 1st respondent would not have signed same because she was not resident in Nigeria at the time
9
they were made and or signed? That the learned trial judge of the lower Court made comparisons of the purported documents used in selling the property to the appellant, and the signature on the original documents with the genuine signature of the 1st respondent, and found that the former were forged having not been signed by the 1st respondent.
Learned counsel referred to the evidence of PW4, and submitted that same has not been controverted by the appellant. That the evidence of PW4 has proved the case of the 1st respondent, especially that the document alleged to have been lost giving rise to the application for a new certificate of occupancy, was found to be in possession of the 1st respondent.
As to the need for the 1st respondent (the plaintiff) at the lower Court) to testify, counsel contended that, in civil cases, no specific number of witnesses must be called to testify. That a party can prove his case by calling any number of witnesses, provided their testimony is cogent and credible. Therefore, he submitted, the failure of the 1st respondent to testify at the lower Court was not fatal to her case in view of the unchallenged evidence
10
adduced before the lower Court. Counsel referred to the pleadings and evidence adduced by PWs 1 – 5, and submitted that having not denied the averments in the pleadings, and controverted the evidence adduced in support, the appellant is deemed to have admitted same, and the evidence led by the 1st respondent must be taken to be cogent and credible. That the learned trial judge of the lower Court was right in relying on the evidence in arriving at a decision in favour of the 1st respondent. Counsel urged that issue 1 be resolved against the appellant.
On issue 2, Abere Esq., submitted that a party need not testify in his case, all that is required by law is that cogent, credible and reliable evidence be adduced to prove the case on the balance of probability or on the preponderance of evidence. The case of Obun v. Obun (2008) All FWLR (pt. 327) p. 419 @ 454 cited to buttress the submission supra. That the evidence of Pw1-Pw5 being cogent, credible and reliable, there was no need for the 1st respondent (though the plaintiff) to give evidence, in so far as there are sufficient evidence adduced in support of the claims of the party. Counsel further argued
11
that, where the averments in the pleadings have not been denied, and the evidence adduced in support have not been controverted by the other party, a Court of law can properly rely on same in taking a decision on what is in controversy. The case of A.G. Ferrerd & Co. Ltd. V. Nnamani & Anor (2006) All FWLR (Pt. 339) p. 990 cited in aid. Counsel then concluded by urging the Court to resolve issue 2 against the appellant.
The crux of the respondents’ case is that unknown persons, without her consent or authority, used certificate of occupancy; Deed of Assignment and other related documents, which were fraudulently obtained to sell property No. 13 Odutola street Sabon Gari, Kano, to the appellant. The assertions of the respondent are vividly captured in Paragraphs 8, 8(a) 99) 12(b) and (c) of the Amended statement of claim filed on the 30th of July 2008. The averments contained in the foresaid paragraphs of the Amended statement of claim are hereunder reproduced for ease of comprehension and appreciation.
8 The search further revealed that the defendant caused somebody to execute ALL necessary documents, papers and Agreement in the
12
names of the plaintiff for the purpose of getting the property registered in his name and in fact purportedly registered himself as the new owner of house No. 13 Odutola Street, Sabon Gari, Kano.
8(a) The search conducted at Waje office also revealed that one faceless individual who claimed to represent the plaintiff but who the plaintiff neither knew nor authorized applied to the District Head of Waje with a sworn Affidavit and Police extract claiming that the plaintiff’s certificate No. 12307 was lost for a new certificate and based on the fraudulent and mischievous falsehood, the District Head issued him a new Certificate No. 00488 on 3rd March, 2006.
9 The 1st defendant acting in concert with some individuals who the plaintiff does not know and who she did not authorize purportedly sold the plaintiff’s house No. 13 Odutola Street, Sabon Gari, Kano to the 1st defendant using the fraudulently obtained certificate No. 00488 pursuant to which the 1st defendant immediately got the said Certificate No. 00488 cancelled by the Waje Land Office and got another Certificate No. 00740 dated 27th February 2007 issued in his name to cover up the fraudulent
13
dealings with the plaintiff’s house No. 13 Odutola Street, Sabon Gari, Kano.
12 (b) The plaintiff avers that the 1st defendant remained obstinate and adamant in his claim to title to No. 13 Odutola Street, Sabon Gari, Kano which title he fraudulently obtained and therefore refused to either reply the plaintiff’s solicitors said letter or to de-register himself at the Waje Land Office and it was only his Solicitors used in purportedly purchasing the said house that replied the plaintiff’s solicitors letter and the said letter dated 28th March, 2007 further illuminated the fraudulent dealings with the plaintiff’s house and the culpability of the plaintiff in the whole fraudulent transition.
12(c) The plaintiff in addition to all the above also instructed her solicitors to once again write and apply to the Waje Land Office (Fagge Local Government council) for copies of Papers filed by the 1st defendant in order to get himself registered as the purported owner of House No. 13 Odutola Street, Sabon Gari Kano to which letter the Waje Land Office responded by another letter dated 28th March, 2007 attaching the 1st defendant’s letter of Application for Change
14
of Ownership and the Deed of Assignment over No. 13 Odutola Street, Sabon Gari, Kano.?
By the provisions of Section 177 of the Penal Code of Kano State (Amended), using fraudulent documents to transfer or do other transactions involving property is a criminal offence, Section 177 of the Kano State Penal Code Provides:
“177. Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or Instrument, which purports to transfer or subject to any charge any property or any interest therein and which contains any false statement relating to the consideration for such transfer or charge or relating to the person or persons for whose use or benefit it is really intended to operate shall be punished with imprisonment for a term which may extend to two Years or with fine or with both.”
A community reading of Paragraphs 8, 8(a), 9, 12(b) and (c) and Section 177 of the Penal Code, clearly established that the respondent had introduced the commission of the offence of fraudulent usage of documents in the transaction involving property, No. 13 Odutola Street, Sabo Gari Kano. The law is trite, an allegation of the commission of
15
a crime, in criminal or civil proceedings must be proved beyond reasonable doubt as required by Section 135(1) of the Evidence Act, which provides that:
“If the commission of crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
As to the requirement and what is meant by proof beyond reasonable doubt, the Apex Court, in the case of Afolalu v. State (2010) All FWLR (Pt. 588) P. 812 enunciated that:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused will be upheld even if it is on the credible evidence of a single witness…On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the
16
law vests upon it thereby entitling the accused person the benefit of doubt resulting in the discharge and acquittal.?
The Apex Court went further to state that:
?Proof beyond reasonable doubt is not proof beyond a shadow of doubt. It is not therefore, proof beyond all possible or imaginary doubt, that is such Proof as precludes very reasonable hypothesis except trial which it tends to support. It is proof to moral certainty, such proof as satisfies the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charge against the trial judge.”
I am not unmindful of the exception to the general requirement of the provisions of Section 135 (1) of the Evidence Act, which is that, where the allegation has no criminal flavor, the burden of proof beyond reasonable doubt does not apply. In such a situation the standard of proof on the preponderance of evidence or
17
balance of probability would apply. See Imonike v. United Bank (2011) 5 SCNJ P. 73 @ 82, wherein the Apex Court held thus:
“In the circumstance it is very clear and I hereby hold that the lower Court was right in holding that the burden of proof lies on appellant to prove the fact that the fraud in issue has criminal code flavor or as contemplated therein, which appellant failed to discharged.”
A perusal and examination of the averments in paragraphs 8, 8(a), 9, 12(b) and (c) of the Amended statement of claim filed by the respondent on the 30th of July 2008, has shown that the averments therein contained allegation of the commission of fraud which by Section 177 of the Penal Code, is a criminal offence. The averments aforesaid therefore has alleged criminality which must be proved beyond reasonable doubt in order to sustain the case of the respondent at the lower Court. Did the respondent discharge this burden? The respondent (as the plaintiff) did not testify to deny that she did not sell the property to the appellant nor signed the Deed of Assignment and the application for change of ownership in favour of the appellant. On the contrary the
18
evidence before the lower Court clearly showed that the respondent signed the application for reissuance of new Certificate of occupancy, and applied for change of ownership of property No. 13 Odutola Street, Sabon Gari, Kano in favour of appellant.
It is worthy to note that PW4 testified as the respondent’s witness. Her testimony as recorded on pages 220-223 of the record of appeal are thus:
“there was an application for change of ownership and it is signed by F. M. Buhari requesting the .Local Government to change the ownership of No, 13 Odutola from her name to that of Lawrence Agugu.?
The evidence before the lower Court showed that the respondent swore to the affidavit of loss of the certificate of occupancy which she sought for the re-issuance of a new certificate of occupancy. These pieces of evidence have not been controverted because the respondent did not testify as a witness at the trial. The burden of proving the allegation of fraudulently obtaining documents to transfer the property No. 13 Odutola Street, Sabon Gari, Kano to the appellant was on the respondent, not on the appellant having regard to the nature of
19
the claim that the property was sold by unknown persons fraudulently without the consent or authority of the respondent. She was a vital witness, whose evidence was vital to the just determination of the dispute before the lower Court. Her failure to testify at the lower Court was therefore fatal to her claim. See Omotayo v. State (2013) 2 NWLR (Pt. 1338) P. 235 @ 255; Oboru v. RSH & PDA (1997) 9 NWLR (Pt. 52) P. 428.
The averments contained in Paragraphs 8, 8(a), 9, 12(b) and (c) of the Amended Statement of claim (which have been reproduced supra) alleged that the property No. 13 Odutola Street Sabo Gari Kano, was fraudulently sold to the appellant. The usage of the word fraud or “Fraudulently” has introduced criminality in the pleadings. where averments in the pleadings in civil proceeding has a criminal flavor, such assertions or averments must be proved as required by Section 135(1) of the Evidence Act, 2011, that is, beyond reasonable doubt. Section 177 of the Penal Code of Kano State (reproduced supra) creates an offence of dishonesty or fraudulent execution of Deed of transfer of property which contains false statements. To prove an offence under
20
Section 177 of the Penal Code, there must be evidence establishing the following:
(a) that the accused signed, executed, or became a party to the deed or instrument.
(b) that the purpose of the document was to transfer, or to subject to a charge, the property or any interest in question.
(c) that the document contained a false statement relating to the consideration or relating to the person for whose use or benefit it was really intended to operate; and
(d) that the accused acted dishonestly or fraudulently.
The evidence of PW1, 2, 3, 4, 5 and 6 have not established any of the elements of the offence under Section 177 of the Penal Code, that is “dishonest and fraudulent execution of deed of transfer containing false statements” against the appellant. If the learned trial judge had adverted his mind to the provisions of Section 135(1) of the Evidence Act, 2011 and the provisions of Section 177 of the Penal Code, he would have found or realized that the respondent did not discharge the burden of proof under Section 135(1) of the Evidence Act, therefore, the respondent did not adduce evidence proving her case.
?Learned
21
counsel to the appellant contended that the learned trial judge of the lower Court did not properly evaluate the evidence of both parties before him in arriving at a decision. That if he had properly done so and ascribed probative value to the accepted evidence, he would have arrived at a different decision. What is evaluation of evidence? Augie J.C.A in the case of llori v. Tella (2006) 18 NWLR (Pt. 1017) P.272 said:
”Evaluation of evidence entails the assessment of evidence so as to give value or quality to it, it involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other.”
It is the totality of the evidence that has to be evaluated and assessed together. The trial Court cannot pick and choose the evidence to be assessed. In the instant case, the trial judge did not properly evaluate the evidence before him.
See Onisaodu v. Elewuju (2006) All FWLR (Pt. 328) P. 676. The law is trite, a judge before whom evidence is adduced
22
by the parties in a civil case must come to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale: he will put the evidence adduced by the plaintiff on one side of the scale and that by the defendant on the other side of the scale and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but the quality or probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. See Mogaji v. Odofin (1978) 4 SC 91; Badi v. Agyo (2003) 16 NWLR (Pt. 814) P. 306 @ 323.
PW4 testified as a witness for the respondent. This is what she said as recorded on page 38 of the printed record of appeal.
“In 2006 representative of the plaintiff went to the Secretary to the District Head Office with sworn affidavit and police extract for loss of Exhibit 1b. She applied for the issuance of another Certificate, she paid the charges and her request was granted and new Certificate was issued to her in respect of
23
Number 13 Odutola… there was an application for change of ownership and it was signed by F. M. Buhari requesting the Local Government to change the ownership of No. 13 Odutola from her name to that of Mr. Lawrence Agugu (the appellant) and the sales agreement was attached dated 26-02007 between the Mrs. F. M. Buhari and Lawrence Agugu.”
The 4th witness for the respondent went further to say on page 40 of the record that:
“I have never seen the plaintiff in my life. Looking at Exhibit 1a, the seller is Mrs. F. M. Buhari and she signed as seller.”
(See p. 40 lines 27 of record of appeal) Again on page 45 of the record of the record she said:
“Before the District Head and Local Government issue new certificate they must make sure that all due process are followed.”
The evidence of the appellant as DW1 and DW2, are to the effect that both of them were physically present at the transaction of the sale of the property. On how he purchased the house in dispute, the appellant who testified as DW1, whose evidence has been recorded on pages 56 lines 25-31 to 57 lines 9-14 of the record of appeal stated that:
“It is the house I
24
bought from the plaintiff as at 26-02-2007. I know the District Head of Waje Alh. Mustapha Galadima. I met him first when I went for search with a photocopy of certificate of occupancy of No. 13 Odutola given to me by the plaintiff. 26-02-2007 was the date I bought No. 13 Odutola from the plaintiff. I requested for the photocopy of the certificate of occupancy which she gave me. I went to Waje Land Office for search. I entered the office of the District Head and presented the photocopy of the certificate of occupancy to him. The district Head ordered for the file he went through it and said there was no problem. I saw police extract in the file and I enquired from the District Head who said that they lost the former Certificate of occupancy and they brought the police extract and affidavit and a new one was issued to her… I came and met the plaintiff and told her that there is police extract in the file and she said to me one of her daughter Ramatu Buhari lost the original C of O.?
The appellant went further to testify as recorded on page 57 lines 13- 18 thus:
“Myself and the plaintiff went to UBA Murtala Mohammed Way Kano, the money was
25
counted and found complete. The plaintiff brought out deed of assignment, I signed, the plaintiff signed and she gave me original C of O of No. 13 Odutola Street and the deed.?
Under cross-examination he said:
“The plaintiff signed the Deed of Assignment in my presence at UBA Murtala Mohammd Way Kano. She also signed the change of ownership at Waje Land Office.” See page 58 of the printed record of appeal.
The evidence of DW2 an eye witness has been recorded on page 62 of the printed record of appeal thus:
?After some hours the defendant called me and said I should go to UBA Murtala Muhammed Branch, Kano, that he wanted to pay for the house. I went to the bank and I saw the defendant with one woman and one man. The plaintiff was confirming the money. She told the defendant that the money is complete (4 Million) she brought out 2 agreement she signed and gave to the defendant who signed, the other man also signed. The plaintiff brought out Certificate of Occupancy of No. 13 Odutola and gave it to the defendant. The plaintiff and the defendant agreed that they will go to Waje Land Office for change of ownership from the name
26
of the plaintiff to that of the defendant.”
Under cross-examination he said:
“The woman I saw at No. 13 Mrs. F. Buhari the plaintiff is the same woman I saw at the Police station and UBA.”
The judgment of the lower Court can found on pages 238 to 261 of the printed record of appeal. The learned trial judge made a summary of the evidence of each witness and specifically on page 258 said:
“The evidence so far led by the plaintiff through the five witnesses called is strong, cogent & compelling and the Court is bound to believe and act on such evidence & I so hold.”
Finally, on page 259-260 of the record of appeal the learned trial judge arrived at his decision thus:
“In the present case the plaintiff has called sufficient evidence (witnesses) to establish her claim before this honorable Court and has thereby discharged the onus of proof presented by taw. She need not testify herself & I so hold.
The testimonies of DW1 and DW2 did not in any way challenged or controverted the evidence led by the plaintiffs witnesses including the document tendered through the plaintiff’s witnesses. The 1st defendant in
27
particular as DW1 has failed to discharge the burden that the second Certificate of Occupancy No. 00488 was genuinely procured and not based on sworn affidavit and police extract obtained fraudulently. DW1 in his evidence in chief stated that “I was informed by agents the house No. 13 Odutola Street is for sale and I asked the agent what is the price and who is the owner. The agent’s name is Mallam Amadu who said the price of the house is N4million. I told him I am interested in buying the house Mall. Amadu came and informed me that the owner of No. 13 was around………..”
The Court observes that the said Mallam Amadu was not called by the 1st defendant to testify to establish the truth of the alleged fact & I so hold. DW1 further state that myself and the plaintiff went to No. 13 Odutola and the plaintiff introduced to the tenants, as their new landlord. DW1 however did not call any of the tenants to testify and attest to this fact & I so hold. I have carefully gone through the deed of assignment did observed at paragraph 6 of the said Deeds of Assignment that the property assigned to the 1st defendant is property covered by Certificates of
28
Occupancy No. 0433 and not out covered by Certificate of Occupancy No. 1230 which covers the property known and situated at No. 13 Odutola Sabon Gari, Kano and which remains valid up till date & I so hold.
The evidence of DW2 is similar to that of DW & I so hold.
After a thorough appraisal of the evidence so far lead in this case that is to say the testimonies of the plaintiff and defendant’s witnesses I hereby hold that the plaintiff has succeeded in proving her claims based on preponderance of evidence which has remained unchallenged and uncontroverted by the evidence of the defendant’s witnesses & I so hold. The plaintiff is therefore entitled to have judgment entered in her favour.”
Did the learned trial judge properly evaluate the evidence adduced by both the appellant and the respondent in arriving at a decision on pages 259 to 260, which have been reproduced supra? In Bello v. The State (2007) 10 NWLR (Pt. 1042) P. 554 @ 582, this Court stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. There must be stated on record how the Court arrived at its conclusion of
29
preferring one piece of evidence to the other. See also Alake v. State (1992) 9 NWLR (Pt. 265) P, 260. In the civil case of Ilori v. Tella (2006) 18 NWLR (Pt. 1011) P. 268 @ 291 the Court of Appeal held that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version of evidence to the other. See also Oyekola v. Ajibade (2001) 17 NWLR (Pt. 902) P.356 and Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) P.2419.
In the evaluation of evidence, the trial judge has to consider or give due regard to, among other things the following:
(i) Admissibility of the evidence
(ii) Relevancy of the evidence
(iii) Credibility of the evidence
(iv) Conclusiveness of the evidence, and
(v) probability of the evidence in the sense that it is more probable than the evidence of the other party
(vi) Finally, the trial judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before
30
arriving at a conclusion one way or the other.
See Mogaji v. Odofin (1978) 4 SC 91 and Adeyeye v. Ajiboye (1937) 3 NWLR (Pt. 61) P.432.
It is worthy of note that the evaluation of evidence and the ascription of value or quality thereto are the preserve of the trial judge who would have had the singular opportunity of seeing, hearing and observing the witness(s) giving evidence. In Yadis (Nig) Ltd v. G.N.I.C Ltd (2007) 11 NWLR (Pt. 1055) P. 587 @ 607, it was held that it is the primary duty of the trial Court or trial judge to evaluate evidence, make findings and apportion probative value thereto, not for an appellate Court to do so, except where the trial Court failed to do so or it was improperly carried out. In Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1125) P. 659 @ 615, it was held that the finding of facts, evaluation of evidence, and the ascription of probative value thereto are the exclusive preserve of the trial Court or trial judge as the case may be. Where a trial Court properly evaluated the evidence before it and ascribed probative value thereto, an appellate Court has no business to interference with such evaluation and ascription of
31
probative value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it does not agree with the way and manner it was carried out by the trial Court. See NEPA v. Adesanju (2002) 17 NWLR (Pt. 797) P, 38 and Ndidi v. State (2007) 13 NWLR (Pt. 1052) P. 633.
The learned trial judge just summarized the evidence of the witnesses for the appellant and the respondent. The reasons for preferring one set of evidence to the other has not been stated in arriving at a decision. See pages 238 to 261, specifically page 258 of the record of appeal. The law is trite, an appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following:
(a) where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
(b) where the trial Court fails to make finding of fact on a material or important issue or issues canvassed before it by the
32
parties in its evaluation of evidence; or
(c) where the trial Court gives an unfair treatment on the evidence of the parties before it.
See NEPA v. Archida (2006) 7 NWLR (Pt. 979) P.245 @ 272.
The respondent who has been alleged to have signed the documents used in the transaction of selling the house No. 13 Odutola Street Sabon Gari Kano, did not testify to deny signing them. PW1 and 2, only denied knowledge of the respondent having sold the house to the appellant. The appellant did not state that PWs 1 and 2 were witnesses to the sale of the property to him. The appellant as DW1 testified that the respondent signed the application for re-issuance of new Certificate of occupancy for the house as well as the Deed of Assignment transferring the house to the appellant. The evidence of DW1 has been corroborated by evidence of DW2 who testified that he witnessed the signing of the documents at the UBA Plc, Kano and at the Land Office. The evidence of DW1 and DW2 have not been challenged under cross-examination nor controverted by the evidence of other witnesses. If the learned trial judge of the lower Court had adverted him to mind those specific
33
pieces of evidence in his evaluation of the totality of the evidence adduced by the parties, he would not have preferred that of the respondent to that of the appellant. The learned trial judge of the lower Court did not therefore properly evaluate the evidence and ascribed probative value thereto before arriving at his decision.
When a trial Court fails to rely on evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. In the instant case, the trial Court did not rely on the evidence in the proceedings before it to arrive at a finding that the respondent had proved her case which is contrary to the evidence on the printed record. In the circumstance, its finding is perverse. Yaro v. Arewa Const. Ltd. (2007) 17 NWLR (Pt. 1063) 333; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Anyakora v. Obiakor (2005) 5 NWLR (Pt. 919) 507.
A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Court. See John Shoy Int. Ltd v. AFPB (2013) 8 NWLR (Pt. 1357) P. 625 @ 640 and Iwuoha v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) P. 308.
When a
34
decision is perverse, it occasions a miscarriage of justice warranting a reversal of a decision, should be declared only when a Court, after examination of the entire case including the evidence, is of the opinion that it is reasonably probable that a result favourable to the appellant would have been reached in the absence of the error. See John Shoy Int. Ltd v. AFPB supra P. 640, when a decision is based on perverse finding which caused injustice, same is liable to be set aside.
Having resolved that the learned trial judge of the lower Court did not properly evaluate the evidence of the appellant vis-a-vis that adduced by the respondent proving that property No. 13 Odutola Street Sabon Gari Kano, was fraudulently sold to the appellant, issues 1 and 2 are hereby resolved in favour of the appellant. The resolution of issues 1 and 2 would have determined and dispose of the appeal, however, in the event of there being an appeal to the Apex Court, I consider it desirable to delve into issues 3 and 4 and resolve same.
ISSUE 3
Whether the learned trial judge of the lower Court was right in awarding the sum of six million naira (N6, 000,000.00) as
35
general and special damages to the respondent against the appellant when there was no credible evidence to warrant granting same. Uzuegbu Esq., of learned counsel submitted that the respondent did not discharge the burden of proving special damages for pains, injustices, inconvenience, psychological trauma and out of pocket expenses which was alleged to have been suffered due to the fraudulent acquisition and trespass to the property No. 13 Odutola Street, Sabon Gari Kano by the appellant. That the respondent failed to adduce credible evidence to support the averments contained in Paragraphs 12, 13, 13(a) and 15(g) of the amended statement of claim, therefore the learned trial judge was not right in awarding the sum of six million naira (6,000,000.00) special damages to the respondent. Counsel further adumbrated that having regard to the nature of the alleged special damages, the respondent ought to have given evidence at the trial. That the evidence of the respondent as the person who suffered the injustice allegedly caused by the appellant, is vital to the claims of special damages. It has been contended that the evidence of PW5, on which the learned trial
36
judge relied on, in awarding the special and general damages are not cogent, since she was not the person who suffered the injustice, the basis of the ward of the damages.
Counsel referred to exhibits 2(a)(b)(c) and (d) and submitted that the evidence of PW5 are not cogent and credible to prove the claim for special damages as pleaded in paragraphs 13(a)(ii) and (iii) of the Amended statement of claim. On the awarding of lump sum of N6,000,000.00 for special and general damages, counsel pointed out that it was erroneous in law in that the two (2) types of damages are granted on different principles of law, that is, special damages must be specifically pleaded and strictly proved. The case of PTL v. Nesimone (1995) 6 NWLR (pt. 402) P. 474 @ 486 cited to buttress the submissions supra. In conclusion, counsel did urge the Court to interfere with the assessment and awarding of special and general damages of N6,000,000.00 to the respondent having been carried out wrongly in law. The case of Chanrai v. Khawam (1965) 1 All NLR P. 182, cited to reinforce the proposition of principles of law on the duty of an appellate Court to interfere with the assessment and
37
or award of damages, special or general by a trial Court, and when desirable to carry out such function in assessing and awarding the quantum of damages.
Abere Esq. learned counsel to the 1st respondent, conceded that, special damages must be pleaded and strictly proved by cogent and credible evidence, but contended that the respondent pleaded facts, in support of the special damage, and also adduced credible evidence which the learned trial judge relied on in awarding same. That special damages must be pleaded and strictly proved has been enunciated in a litany of decided cases, one of which is Salako v. Williams (1998) 11 NWLR (Pt.. 574) P. 505 @ 522. As to what is meant by strict proof in a claim for special damages, counsel cited the case of West African Shipping Agency (Nig) Ltd v. Kalla (1978) 3 SC 21, wherein the Court defined what is meant by strict proof. On proof of special damages, counsel submitted that it is not at all times necessary to rely on receipts or other documentary evidence, where there is cogent oral evidence. The cases of Bashalli v. Allied Commercide Exporter Ltd (1962) All NLR P.917 and Orgiekure v. Orgiekure (2001) FWLR
38
(Pt. 338 P. 1181 cited in aid. Concluding, counsel did urge that the award of N6,000,000.00 as special and general damage to the 1st respondent by the lower Court is proper and reasonable in law having regard to the evidence adduced in support of the loss and the general sufferings the 1st respondent went through due to the action of the appellant, and other unknown persons who colluded and fraudulently sold property No. 13 Odutola Street Sabon Gari Kano to the appellant.
The 1st respondent’s claim for special damages has been predicated on the averments contained in paragraphs 13,(a)(i) to (vii) of the Amended statement of claim dated and filed on the 30th of July, 2008, which are reproduced hereunder:
“13(a) The plaintiff incurred and is still incurring the following expenses by reason of the 1st defendant’s fraudulent dealings on her house along with some unknown persons and Land speculators and agents for which she herein claims as Special Damages:
i. Cost of return tickets for herself,, her two daughters (Hajia Ramatu Buhari and Hajia Saliatu Buhari) who wheeled her to Kano from London and back to London N600,000.00
ii. Solicitors
39
fees paid the firm of Kehinde Olaitan & Co on suit No. K/168/2007 – N500, 000.00
iii. Solicitors fees paid to Kehinde Olaitan & Co in respect of suit No. K/171/2007 – N500,000.00
iv. Return tickets for the plaintiff and her daughter (Hajia Ramatu Buhari) who wheeled the plaintiff to Kano on or about the 25th day of October, 2007 – N400,000.00
v. Medical expenses incurred by the plaintiff on the 2 trips to Kano and back to London – N300, 000.00
vi. Medical expenses incurred by the plaintiff on the 2 trips to Kano and back to London – N300,000.00
vi. Return ticket from London to Kano and back for Hajia Ramatu Buhari to attend Court and give evidence on behalf of the plaintiff in suit Nos. K/168/2007 and K/171/2007 on both 23rd and 24th July, 2008 – N200,000.00
vii. Any other costs the plaintiff or her agents shall incur by reason of attending to suits Nos. K/I71/2007 and K(/168/2007.”
Special damages are such which the law will not presume to flow from the nature of the act complained of or breach of duty of the other party, as a matter of course. Special damages are exceptional in nature and connotes specific
40
items of loss which a plaintiff alleges are the result or consequence of the defendant’s act or breach of duty. See UBA Plc v. Ogundokun (2009) 6 NWLR (Pt. 1138) P. 431 @ 489. In OGFS Ltd v. Ogunleye (2008) All FWLR (Pt. 437) P, 48 @ 64, special damage has been defined thus:
“Special damages has been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore they must be claimed specifically and proved strictly all the loses claimed on every item must have crystallized in terms and value before trials.?
Special damages must be pleaded and strictly proved by cogent and credible evidence. Mukhtar J.C.A ( as then she was) in Yahaya v. Oparinde (1997) 10 NWLR (Pt. 523) P. 126 @ 137 said:
“It is settled that special damages must be proved strictly, and once a claimant has established that he is entitled to such type of damages by good and credible evidence most especially one that is not controverted, and the evidence also shows that he is so entitled to an award under that head, then the judge will be justified in awarding the damages claimed.”
In UBA
41
Plc v. Ogundokun (2009) 6 NWLR (Pt. 1138) P. 431 @ 489, this Court enunciated that special damages must be specifically pleaded and with certainty, unless unchallenged by the adverse party, must be strictly proved. The onus is on the plaintiff to prove special damages strictly because the Court is not entitled to make its own estimate of same. However, the law does not require an extraordinary measure of evidence to establish entitlement to special damages. Strict proof of damages means that the evidence adduced by the plaintiff must show how particularly in accordance with his pleading and while basing his claim upon a precise calculation must give the defendant access to the facts which makes such calculation possible. FBN Plc v. Associated Motors Co, Ltd (1998) 10 NWLR (Pt. 570) 441; FBN Plc v. Abba (1998) 10 NWLR (569) 227; Salako v. Williams (1998) 11 NWLR (Pt.514) 505; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.363) 626; UBN Ltd v. Odusote Bookstore Ltd (1995) 9 NWLR (Pt. 421) 558.
On pages 259 to 260 of the printed record of appeal, the learned trial judge of the lower Court found and held thus:
?After a thorough appraisal of the
42
evidence so far lead in this case that is to say the testimonies of the plaintiff and defendant’s witnesses I hereby hold that the plaintiff has succeeded in proving her claims based on preponderance of evidence which has remained unchallenged and uncontroverted by the evidence of the defendant’s witnesses & I so hold. The plaintiff is therefore entitled to have judgment entered in her favor.”
The learned trial judge then entered judgment in favour of the 1st respondent in respect of the claim for special damages thus:
“The 1st defendant is hereby ordered to pay to the plaintiff the sum of six million naira as special and general damages for all the pains, inconveniences, psychological trauma and out of pocket expenses like the purchase of the Virgin air tickets London- Lagos-Kano, accommodation, running around and other expenses as lead in an evidence of PW4.”
The 1st defendant (now appellant) was ordered to pay the plaintiff (now 1st respondent) the sum of six million naira as special and general damages for all the pains, inconveniences, psychological trauma and out of pocket expenses e.t.c. Was the learned trial judge of the lower
43
Court right or justified in awarding the 1st respondent special and general damages in the sum of N6, 000,000.00? The learned trial judge of the lower Court relied heavily on the evidence of PW1-6 who testified on behalf of the 1st respondent. It is significant to note that the respondent as plaintiff did not testify as a witness at the lower Court. The evidence of PW5, is relevant to the claim of special damages. The evidence of this witness has been recorded on page 51 of the record of appeal, specifically lines 13-20 thereof. This is what she said:
“We paid the medical doctors for their services and nurses who took care of the plaintiff in range of 350 to 500 pounds per week if I come to Kano. We took the plaintiff for C. C. B scan which cost about 950 pounds. I can identify the medical report”
?The 1st respondent did not give evidence. Having due regard to the nature of the claim of special damages, the evidence of the 1st respondent as the person directly affected by the sale of the house No. 13 Odutola Street Sabon Gari, Kano is very vital. PW5 gave evidence as a witness. On page 50 lines 34 to page 51 lines 1-3 of the record of appeal, the
44
witness testified thus:
“Each time I come for the case, I spent 800 pounds for tickets, accommodation and travelling around, 2000 pounds for everything inclusive. I spent 700 pounds for Saliat, myself and the plaintiff is 2,400 pounds each….”
There are no pleadings to support the evidence recorded on pages 50-51 of the record of appeal which are reproduced supra. The pleadings avers that it was the 1st respondent as plaintiff that incurred the loss enunciated by PW5, whereas the evidence of PW5 relates to the loss and sufferings sustained by the said witness. Exhibits 2(a) (amended) were admitted pursuant to the pleadings in paragraphs 13(a)(ii) and (iii) of the Amended statement of claim. In these paragraphs it have been averred that the 1st respondent incurred the expenses, whereas the evidence of PW1 is to the effect that it was the witness, PW5 that incurred the loss or expended the sums of money by the receipts admitted in evidence.
The law is trite, in the claim of special damages, the pleaded facts must be proved strictly by cogent and reliable evidence. See PTL v. Nesimone (1995) 6 NWLR (Pt. 402) P, 474 @ 486 wherein it was held
45
that:
“Damages whether special or general must be based on facts established by credible evidence given before the Court…
There is nothing to show from the Judgment how the trial Court arrived at the sum awarded. Hence, the award is arbitrary.”
What is more, the claim of the respondent at the lower Court is for N10, 000,000.00 as special and general damages. It is a lump sum for both types of damages. The respondent in his claim has not specified as to what sum is for special damages, and what is for general damages. In other words, the claim for damages is vague. No evidence proving strictly the special damages. The law is settle, where damages have been awarded which have not been supported by cogent and credible evidence, such an award cannot be sustained on appeal. See Chanrai v. Khawam (1965) 1 All NLR P. 182, where it was held that:
?An appellate Court will interfere with damages awarded in the lower Court if there was no evidence to justify the trial award or if the appraisal of facts before the trial Court is unrealistic.”
?The findings and decision of the learned trial judge on pages 259-260 (reproduced supra) cannot
46
be supported by the evidence of the witnesses who testified on her behalf, especially the evidence of PW5, which the learned trial judge relied on heavily in awarding the N6,000,000.00 special and general damages to the 1st respondent. Same is hereby set aside. Issue 3 is hereby resolved in favour of the appellant.
ISSUE 4
Whether the learned trial judge was right in entering judgment in favour of the 1st respondent based on the writ of summons and statement of claim dated 29th March, 2007, same having been amended? Uzuegbu Esq., submitted that the 1st respondent, by a motion on notice dated 30- 07-08 sought for an order to amend the statement of claim dated 29-03- 07, which was granted on the 21-11-08. That the lower Court deemed as properly filed a statement of claim marked as exhibit ?S&B? which was attached to the motion even though not marked as “Amended statement of claim. Counsel contended that, in civil proceedings, judgment is based on the competent pleadings and evidence adduced in support. That once an amended is effected, what has been amended is no longer alive before the Court. That it is the amended pleadings that the
47
Court must rely on and evidence be adduced on same before judgment could be based on same. The case of Osho v. APC (1998) 6 SCNJ P. 139 @ 151 and Amanambu v. Okafor (1966) 1 All NLR P. 205 cited to buttress the submissions supra.
In view of the foregoing, counsel submitted that the statement of claim dated 30-03-2012 having been amended was no longer relevant for the adjudication of the matter before the lower Court. That the learned trial judge based his judgment on the statement of claim which has been amended, therefore it is void for not having been based on a valid statement of claim. The case of Union Bank v. Ogboh (1995) 2 SCNJ P. 1016 cited to reinforce the contention supra. Counsel then urged the Court to declare the judgment delivered on the 8th of June 2010 a nullity and set aside same for having been predicated on an invalid statement of claim. Court has been urged to resolve issue 4 in favour of the appellant.
?Abere Esq., for the 1st respondent, conceded that there was an amendment of the statement of claim dated and filed on the 29-07-2007, but pointed out that the judgment of the lower Court delivered on 8th of June 2010 was not
48
based on that statement of claim, rather, it was predicated on the amended statement of claim dated 30-07-2008. Counsel referred to page 253 of the record of appeal, especially the judgment and contended that the learned trial judge specifically referred to the amended statement of claim dated 30-07-2008, as the pleadings in the matter. Counsel did urge the Court to disregard the contention of learned counsel to the appellant on the issue of invalid pleadings, and to hold that the judgment of the Court was based on valid amended statement of claim as shown in the record of the trial Court especially page 53 thereof.
It is not in dispute that the 1st respondent did apply for leave to amend the statement of claim dated and filed on the 29-07-2007. But the learned trial judge specifically stated on page 253 of the record of appeal that the relevant pleadings before the Court on which issues have been joined and evidence led, in the amended statement of claim dated and filed on the 30-07-2008. This is what have been recorded on page 253 of the record of appeal, the judgment of the lower Court.
“Counsel filed and adopts their written addresses and the
49
Court proceeded to this judgment. The issue for determination is whether the plaintiff has proved her case on preponderance of evidence to be entitled to the claims as per the statement of claim contained in the writ of summons dated 30- 07-2008 or not.”
I agree with learned counsel to the appellant that a statement of claim which has been amended is no longer alive in the proceedings of the Court. What is alive and valid is the amended statement of claim. This position of the law has been stated in the cases of Osho v. APC (1998) 6 SCNJ P. 139 @ 151 and Amanambu v. Okafor (1966) 1 All NLR P. 205. But the learned trial judge referred to the amended statement of claim on page 253 of the record of appeal as the pleadings and the evidence led in support of same that was being considered in arriving at the decision of the lower Court. Though the statement of claim on page 25-31 of the record of appeal ought to have been marked “Amended Statement of Claim”, the Court knew and acted on same, not on the statement of claim that was dated and filed on the 29-03-07, which can be found on pages 5- 8 of the record of appeal. Issue 4 is resolved against the
50
appellant.
Having resolve issues 1 and 2 in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered on the 8th of June 2010, in suit No. K/16812007 is hereby set aside. The appellant is entitled to costs, assessed at N50, 000.00. Same is awarded to the appellant.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead Judgment delivered by my learned brother IBRAHIM SHATA BDLIYA, JCA.
I agree with his reasoning and conclusion that there is merit in the appeal.
I also allow the appeal. I abide the consequential order therein.
51
Appearances
Nelson Uzuegbu, Esq.For Appellant
AND
Ibrahim Umar Abere, Esq.For Respondent
