MRS. BETTY DAREGO v. A.G. LEVENTIS NIGERIA LIMITED & ORS
(2015)LCN/8082(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of July, 2015
CA/L/481/2011
RATIO
EVIDENCE: BURDEN OF PROOF; WHETHER HE WHO ASSERTS MUST PROVE
It is trite law that he who asserts must prove. per. YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS THE HANGER UPON WHICH ORAL EVIDENCE CAN BE VERIFIED
Documentary evidence is held to be the hanger upon which oral evidence can be verified, see the case of CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR -827 (SC) where the court held thus: “Documentary evidence always serves as a hanger from which to assess oral testimony.” See also KINDLEY v. M. G. OF GONGOLA STATE (1988) 2 NWLR (Pt 77) 473 on when there is oral as well as documentary evidence. It was held as follows:
“The legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: CONTRADICTORY EVIDENCE; WHEN IS A PIECE OF EVIDENCE SAID TO BE CONTRADICTORY
A contradiction or contradictory evidence is simply when a piece of evidence asserts or affirms the opposite of what the other asserts or when they give inconsistent accounts of the same event, see EKE v. THE STATE (2011) 3 LPELR – 1133 (SC); OKOZIEBU v THE STATE (2003) 11 NWLR (Pt 83) 327. The evidence in support of the claim of N2,500.00 (Two Thousand, Five Hundred Naira) is inconsistent and contradictory. The effect is that it destroys the case of the party. This court in the case of PATRICK GODDY EKWUNO & ORS v. BOSAH EKWUNO (2011) LPELR – 9180 (CA) held as follows: “Contradiction in the evidence of the Plaintiff’s witnesses is disastrous and has the effect of destroying the case of the Plaintiffs.” See AUDU v. GUTA (2004) 4 NWLR (Pt.864) 463. per. YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; WHETHER PREPONDERANCE OF EVIDENCE IS SO SUFFICIENTLY MEAN A HIGHER LEVEL OF BALANCE OF PROBABILITY AND HOW THE COURT DETERMINES WHICH EVIDENCE IS HIGHER IN CIVIL CASES
It is therefore settled that balance of probabilities is the same as preponderance of evidence. Can the phrase ‘preponderance so sufficiently mean a higher level of balance of probabilities? It is in evaluation of evidence that preponderance of evidence or balance of probabilities arise. The Supreme Court in the case of ABISI v. EKWEALOR (1993) NWLR (Pt.302) 643 had this to say:
“Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of 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. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than other given by the other party.
Finally after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
TORT: CONVERSION AND DETINUE; THE DIFFERENCE BETWEEN CONVERSION AND DETINUE
It is important to state the difference between conversion and detinue and from there the measure of damages can be clearly distilled. The Supreme Court in the case of M.I.N. LTD v. M.F.K.W.A. LTD (2005) 10 NWLR (Pt 934) 645 said thus:
“There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue or bailment and detinue or trover, of which one result is that the same facts may constitute both detinue and conversion.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
TORT: CONVERSION AND DETINUE; THE AWARD OF DAMAGES IN CONVERSION
It is trite that award of damages in a case of conversion is different from that of detinue. In conversion judgment is given as at day of conversion, a single sum, usually the value of the item at date of conversion and damages for its detention. The argument of awarding damages for the period of litigation is inconsistent with the principles of award of damages in cases of conversion. See the case of C.D.C. (NIG) V SCOA (NIG) LTD (2007) 2 S.C. 198 at 199 where the court held thus: “The measure for damages for conversion generally is the value of chattel at the time of conversion together with any consequential damages flowing from the conversion.”
See also ORDIA V PIEDMONT (NIG) LTD (1995) 2 NWLR (pt.379) 516. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: COURT INTERFERANCE; CONDITIONS WHERE THE APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT
Where an award of damages is not special damages that was specifically pleaded with particulars and so proved, it is at the discretion of the trial court and can only be interfered with when certain conditions exist or established on appeal, see ADETORO V OGO OLUWA KITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) 165 and UWA PRINTERS LTD v. INVESTMENT TRUST LTD (1988) NWLR (Pt 92) 110 where the court held as follows:
“The Supreme Court, in ONERE V BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978) 6 – 7 SC 15, which was cited by the appellant in his brief, stated the principles upon which a Court of Appeal can interfere with award of damages by a trial court, thus –
“The principle upon which an appellate court will act in reviewing an award of damages are now well settled and can be summarized as follows. An appellate court is not justified in substituting a figure of its own for that awarded by the Lower Court simply because it would have awarded a different figure if it had tried the case at first instance. Before the appellate court can properly intervene it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.”
It is therefore incumbent on a party, seeking to disturb the award of damages by a trial court to prove to the appellate court that the trial court did not follow the principles relating to award of damages, see TANKO V STATE (2009) 4 NWLR (Pt 1311) 430; OJINI v OGO OLUWA MOTORS (NIG) LTD (1998) 1 NWLR (Pt 534) 353. Such a party must establish the conditions for interference, else, failing to do that, the award stays. per. YARGATA BYENCHIT NIMPAR, J.C.A.
INSURANCE: WHETHER A THIRD PARTY CAN JOIN AN INSURER
The common law position is that a third party cannot join an insurer but the position has since changed by legislation. See the case of UNITY LIFE AND FIRE INSURANCE CO. V LADEGA (1996) 1 NWLR (Pt.427) where this court, Per OGUNTADE JCA (as he then was) held as follows:
“Under the common law, the Plaintiff in this matter, could not have joined the appellant as a party to the suit brought against the persons said to be responsible, for the Plaintiff’s injuries. However, Section 11 of the Insurance (Special Provisions) Decree No.40 of 1988 altered the position. The Section provides:
“Where a third party is entitled to claim against an insured in respect of a risk insured against, he shall have a right to join the insurer of that risk in an action against the insured in respect of the claim: provided that before bringing an application to join the insurer, the third party shall have given to the insurer at least thirty days notice of the pending action and of his intention to bring the application.”
The argument of the 3rd Respondent that the insurer cannot be sued along with the insured is therefore not correct even-though doing so is subject to some conditionalities. It is correct to say that the Supreme Court in the case of ANDREW O. AJUFOR V CHRISTOPHER AJABOR & ORS (1978) 6 – 7 SC. 39 at 52 held that a faulty party could not sue the in\surer ab initio. That it is so because there would be no privity of contract between the parties and that even if such right was conferred by Section 10 of the Motor Vehicles (Third Party) Insurance Act Cap 126 Laws of the Federation, it would be inappropriate to bring in the insurer as a party except, perhaps, by way of a third party proceedings based on contract of indemnity if any. per. YARGATA BYENCHIT NIMPAR, J.C.A.
Before Their Lordships
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
Between
MRS. BETTY DAREGOAppellant(s)
AND
1. A. G. LEVENTIS NIGERIA LIMITED
2. LEVENTIS MOTORS
3. GREAT NIGERIA INSURANCE CO. LIMITED
4. MR. F. O. OGUNDIYANRespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of HON. JUSTICE A.M. NICOL-CLAY of the High Court of Lagos State delivered on the 24th day of November, 2010 wherein the trial court entered judgment for the appellant and dismissed the counter claim. The appeal is against refusal to award damages. Appellant filed a Notice of appeal dated 2nd February, 2011 on the 3rd February, 2011 setting out 9 grounds of appeal.
The brief facts of this appeal are that the appellant’s vehicle, a Mercedes Benz 230 with registration number CD-26-RC had an accident with 4th Respondent’s vehicle, a Mercedes Benz 200 with registration number EKO-78-SMK. The 4th Respondent accepted liability and submitted a copy of third party insurance policy with the 3rd Respondent to the appellant with a view to getting her car repaired but the 1st & 2nd Respondents, after taking possession of the Appellant’s car for repairs, failed to return same. The claim of the appellant at the Lower Court states thus:
“1(a) The immediate return of the Plaintiff’s Mercedes Benz 230 car with registration number CD-26-RC illegally, unlawfully and wrongfully converted on or about September 2001 by the defendants.
IN THE ALTERNATIVE
(b) The sum of N7,000,000.00 (Seven Million Naira) being the value of the car as at December 2002.
(2) The sum of N2,500.00 (Two Thousand Five Hundred Naira) being daily expenses incurred to secure alternative transportation from the 23rd of June 1999 till judgment and thereafter at the same rate till the judgment sum shall have been fully liquidated.
(3) The sum of N5,000,000.00 (Five Million Naira) being general damages for the illegal, unlawful and wrongful conversion of Plaintiff’s Mercedes Benz 230 car with registration number CD-26-RC by the Defendants.
(4) The sum of N5,000,000.00 (Five Million Naira) general damages for the inconvenience and pain meted out on the Plaintiff as a result of the default of the Defendants.
(5) And for such further or order(s)/relief this Honourable Court may deem fit to make in the circumstances.”
The matter went to full trial and judgment was entered for the Plaintiff finding that the appellant’s car was illegally and unlawfully converted by the 1st and 2nd Respondents since September 2001 but the Court refused to award N2,500.00 (Two Thousand Five Hundred Naira) per day being daily expenses for alternative means of transportation.
The Lower Court also refused to award the following:
(a) The sum of N7,000,000.00 (Seven Million Naira) being the value of the car but awarded N450,000.00 (Four Hundred and Fifty Thousand Naira) as the value of the car.
(b) The sum of N5,000,000.00 (Five Million Naira) general damages for inconvenience and pain meted out on the Appellant.
Dissatisfied with that part of the judgment, the appellant appealed to this court. Appellant filed her appellant’s brief on the 7/3/14 dated same day and a Reply on points of law filed on 21/5/14 dated same day which were adopted at the hearing of the appeal.
The 1st and 2nd Respondents brief dated 4th April, 2014 was filed on the same date and adopted at the hearing. While the 3rd Respondent’s brief is dated 7th May, 2014 filed the same date also adopted at the hearing of the appeal.
The 4th Respondent who was duly served with all processes and hearing notices did not take part in this appeal. The record of appeal also reveals that he did not take part in the proceedings at the Lower Court.
The appellant formulated 5 issues namely:
1. Whether the Lower Court was right in holding that the Appellant was not entitled to the sum of N2,500.00 (Two Thousand Five Hundred Naira) per day or any other sum being the average daily expenses incurred to secure alternative transportation despite the express admission of the Respondent and express findings of the trial Judge that the Appellant’s car was illegally converted.
2. Whether the Lower Court was right in holding that the appellant must “preponderate so sufficiently” before she can be awarded the sum of N2,500.00 (Two Thousand Five Hundred Naira) per day or any other sum as the average daily expenses incurred in securing alternative transportation when the standard of proof in civil cases of this nature remains “balance of probabilities.”
3. Whether the amount of N2,000,000.00 (Two Million Naira) awarded as special damages is sufficient to restore the appellant back to her previous position and or status quo in accordance with the principles of “restitutio in intergrum.”
4. Whether the Lower Court was right in disregarding the evidence of the Appellant that the value of the car as at December 2002 was N7,000,000.00 (Seven Million Naira) when there was no other better evidence before the court and when the evidence given by the Respondents was manifestly inconsistent and unreliable.
5. Whether the Lower Court was right by refusing to enter judgment against the 4th Respondent.
The 1st and 2nd Respondents distilled only 2 issues for determination as follows:
1. Whether the Appellant is entitled to N7,000,000.00 (Seven Million Naira) as value as at December 2002 of her Mercedes Benz 230 car.
2. Whether in the circumstances of this case the appellant is entitled to special damages at the rate of N2,500.00 (Two Thousand Five Hundred Naira) daily from 23rd June 1999 till judgment and thereafter at the same rate till judgment sum in liquidation.
The 3rd Respondent on his part formulated 4 issues for determination as follows:
1. Whether the learned trial Judge was right in holding that the Appellant was not entitled to the sum of N2,500.00 (Two Thousand Five Hundred Naira) per day as the average daily expenses incurred by the Appellant to secure alternative transportation despite the trial Judge’s finding that the Appellant’s car was illegally converted.
2. Whether the sum of N2,000,000.00 (Two Million Naira) awarded as special damages in favour of the appellant is not sufficient compensation in the circumstances of this case.
3. Whether the learned trial Judge was right in awarding the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) as the value of the car at the material time and disregarding the evidence of the Appellant that the value of the car as at December 2002 was N7,000,000.00 (Seven Million Naira).
4. Whether the learned trial Judge was right in holding that the 3rd Respondent was not privy to the conversion of the Appellant’s car thereby dismissing the Appellant’s claim against the 3rd Respondent.
There are a total of 11 issues formulated by the 3 sets of parties before the court. However, some of the issues are the same for all the parties but numbered differently. They shall be harmonized for convenience of the court and to avoid repetition. It is clear that issue 1 and 2 of the Appellant speaks of the same question as issue 2 of the 1st and 2nd Respondents and issue 1 of the 3rd Respondent. They shall be considered as issue one in this appeal. Appellant’s issue 3 is the same question as 3rd Respondent’s issue 2. They shall be issue 2. Appellant’s issue 4 is the same as 1st and 2nd Respondent’s issue one and 3rd Respondent’s issue 3. They shall be considered as issue 3. Appellant’s issue 5 and 6 are the same as 3rd Respondent’s issue 4, they shall be issue 4 in this appeal. That brings the issues for determination to a total of 4 issues.
ISSUE ONE:
Proffering arguments on issues 1 and 2 of the Appellant now issue 1, the appellant submitted that the 1st and 2nd appellants admitted converting appellant’s car illegally and unlawfully and referred to the evidence of Matthew Madagwa at pages 286 – 291 of the record of appeal and the evidence of Godfrey Olowu at page 306 – 308 of the record of appeal. Also that the court found for the appellant that her car was improperly converted and therefore the refusal to award the sum of N2,500.00 (Two Thousand, Five Hundred Naira) being daily transportation expenses is perverse. Furthermore, that the express statement of the trial court that the appellant must preponderate so sufficiently altered the known standard of proof which is unknown to law on burden of proof, relied on NSIRIM v. ONUMA CONSTRUCTION CO. (NIG) LTD (2001) 7 NWLR (Pt.713) 746. The appellant continued to argue that trial court’s misapplication of the burden of proof led it into error. She submitted that preponderate so sufficiently is not the same as balance of probabilities.
Appellant contended that since the appellant proved average daily amount spent on transportation, the trial court was wrong not to award what was claimed i.e. the sum of N2,500.00 (Two Thousand Five Hundred Naira) daily, relied on UNITY LIFE & FIRE INSURANCE CO. LTD V. I.B.W.A. LTD (2001) 7 NWLR (Pt 713) and unchallenged evidence.
Appellant complained about evaluation of evidence by the Lower Court on the issue of N2,500.00 (Two Thousand, Five Hundred Naira), that the principle of law is that of restitutio in integrum and the case ADETORO v. OGO OLUWAKITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) on damages meant to put the party in the same position as he would have been. Appellant cited ROTIMI ATOLOGBE V KOREDE SHORUN (1985) 1 NWLR (Pt 2) 360 at 375 for the definition of the word perverse and also OKECHUKWU ADIMUR v. NNANYELUJU AJUFO & ORS (1988) 3 NWLR (Pt 800) 1. Appellant urged the court to reverse the perverse findings of the trial court and find for the appellant.
The 1st & 2nd Respondents who argued it as issue 2 therein, submitted that in an action for conversion, special damages may be claimed but it does not include claim for loss of ordinary earnings after the date of conversion, citing OJINI v. OGOOLUWA NIG LTD (1998) 1 NWLR (Pt 534) 353 and that to succeed in a claim for special damages such must be strictly pleaded and proved including evidence of losses which are exactly known and accurately measured, relied on: IMANA V. ROBINSON (1999) 3 (SC) 1, SHELL PETROLEUM DEV. CO. LTD V. TIEBO VII (1996) 4 NWLR (Pt 445) at 657.
The 1st & 2nd Respondents referred to the inconsistence of the appellant who at one breadth said she spent N2,000.00 (Two Thousand Naira) daily on car hire while at another time said she spent N2,500.00 (Two Thousand, Five Hundred Naira) daily on alternative transportation. Again that Exhibit BD 14 which was tendered to prove transportation cost bore different amounts such as:
On 29/5/07 – N3,500.00
03/7/07 – N3,820.00
12/7/07 – N3,520.00
25/10/01 – N3,520.00
Another flaw observed with Exhibit BD14 is that it was made 5 years after the suit was initiated. They argued that the evidence of the appellant contradicted what the document said, relied on M.S.C. EZENBA v. S.O. IBENEME & ION (2000) 10 NWLR (Pt 674) 61 and AYANWALE v. ATANDA (1988) 1 NWLR (Pt 68) 22. They urged the court to find that the claim was not established.
The 3rd Respondent argued it as issue one and it submitted that the trial Judge was right in its findings as no basis was established for the claim of N2,500.00 (Two Thousand Five Hundred Naira) per day as expenses incurred in alternative transportation because they were incurred after the date of conversion, it referred to OJINI V. OGOOLUWA MOTORS LTD (1998) 1 NWLR (Pt 534) 353 at 361 and STITCH v. A.G. FEDERATION & ORS (1986) 5 NWLR (Pt 46) 1007 to argue that the claim is akin to ordinary earning and losses after the date of conversion and cannot be translated into special damages. Furthermore, that the Lower Court found that the evidence in support of the claim was insufficient and so the appellant failed to prove the claim, it relied on A.G. FEDERATION v A.G. ABIA STATE & ORS (2002) 4 S.C. (Pt.1) 1 at 54. Furthermore, the 3rd Respondent submitted that there was no evidence to show from which point to what point that the transportation was used by the appellant. No particulars provided to back the claim.
On the expression “preponderate so sufficiently” as creating a new level or standard of proof, the 3rd Respondent referred to the meaning of preponderance by Blacks Law Dictionary as denoting a superiority of weight or out weighing. It cited the case of ADETORO V OGO OLUWA (SUPRA) in support on evaluation of evidence and urged the court to find for the respondents here.
RESOLUTION
The challenge is against the finding by the trial court that the appellant is not entitled to N2,500.00 (Two Thousand, Five Hundred Naira) per day or any other sum being the average daily expenses incurred in securing alternative transportation despite the admission by the Respondents and Lower Court’s finding that the Appellant’s car was illegally converted. It is trite law that he who asserts must prove. The burden of proving the head of claim as set out in this issue rest squarely on the appellant. The question here is whether the appellant proved this item of claim?
The Lower Court in its judgment at page 428 reviewed the evidence in support of the claim and the evidence in rebuttal. The appellant tendered Exhibit BD 14 which are receipts dated 21/5/07 for N3,500.00 (Three Thousand Five Hundred Naira); 3/7/07 for N3,820.00 (Three Thousand, Eight Hundred and Twenty Naira); 12/7/07 for N1,520.00 (One Thousand, Five Hundred and Twenty Naira) and 25/10/01 for N3,520,00 (Three Thousand, Five Hundred and Twenty Naira). Except the sworn statement in oath which named N2,500.00 (Two Thousand, Five Hundred Naira), none of the documentary evidence mentioned N2,500.00 (Two Thousand, Five Hundred Naira). It is the contention of the appellant in this appeal that N2,500.00 (Two Thousand, Five Hundred Naira) is the average of the various sums mentioned in Exhibit BD 14. The relief is a specific claim which must be so proved. The receipts tendered do not confirm the oral testimony. Documentary evidence is held to be the hanger upon which oral evidence can be verified, see the case of CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR -827 (SC) where the court held thus:
“Documentary evidence always serves as a hanger from which to assess oral testimony.”
See also KINDLEY v. M. G. OF GONGOLA STATE (1988) 2 NWLR (Pt 77) 473 on when there is oral as well as documentary evidence. It was held as follows:
“The legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one.”
Assessing the oral evidence that the appellant used N2,500.00 (Two Thousand, Five Hundred Naira) daily on alternative transportation must be done against the background of Exhibit BD 14. It is straightforward here, the documentary evidence cannot verify the oral evidence because the figures are at variance. There is therefore a contradiction. A contradiction or contradictory evidence is simply when a piece of evidence asserts or affirms the opposite of what the other asserts or when they give inconsistent accounts of the same event, see EKE v. THE STATE (2011) 3 LPELR – 1133 (SC); OKOZIEBU v THE STATE (2003) 11 NWLR (Pt 83) 327. The evidence in support of the claim of N2,500.00 (Two Thousand, Five Hundred Naira) is inconsistent and contradictory. The effect is that it destroys the case of the party. This court in the case of PATRICK GODDY EKWUNO & ORS v. BOSAH EKWUNO (2011) LPELR – 9180 (CA) held as follows:
“Contradiction in the evidence of the Plaintiff’s witnesses is disastrous and has the effect of destroying the case of the Plaintiffs.” See AUDU v. GUTA (2004) 4 NWLR (Pt.864) 463.
It is certain that the unreconciled evidence of the appellant on the claim of N2,500,00 (Two Thousand, Five Hundred Naira) informed the trial Judge’s finding that the item of claim is not proved and held that it fails and is accordingly dismissed. It is wrong for the appellant to claim it as an average. The law does not give room for uncertain claims.
Following above is the complaint of the appellant that the trial Judge raised the standard of proof by the word ‘preponderate so sufficiently’ used by the trial Judge. Preponderate according to www. dictionary. com is a verb and its original meaning is “to weigh more than” and its source is the latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.
As argued by the appellant, the standard of proof in civil cases has been settled in a plethora of cases, it simply is that proof in civil cases is “on the balance of probabilities or preponderance of evidence”, see AMOKOMOWO V ANDU (1985) LPELR – 469 (SC). It is therefore settled that balance of probabilities is the same as preponderance of evidence. Can the phrase ‘preponderance so sufficiently mean a higher level of balance of probabilities? It is in evaluation of evidence that preponderance of evidence or balance of probabilities arise. The Supreme Court in the case of ABISI v. EKWEALOR (1993) NWLR (Pt.302) 643 had this to say:
“Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of 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. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than other given by the other party.
Finally after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”
Now, in view of the contradiction in the evidence in support of the claim for N2,500.00 (Two Thousand, Five Hundred Naira) was there any evidence upon which the trial Judge could have placed on the scale for weight? I find none and the trial Judge also found none. That being the case, the phrase ‘preponderate so sufficiently’ could not have raised the standard of proof beyond the acceptable level. I had gone to a great length to show that preponderate is a verb which refers to the act of outweighing the other side. There was no evidence to outweigh the evidence of the Respondents that cost of transportation ranged between N400 (Four Hundred Naira), N500 (Five Hundred Naira) and N250 (Two Hundred and Fifty Naira) per day depending on the destination. The trial Judge as can be seen on the record of appeal held that the appellant had no evidence upon which the test of preponderance of evidence can be applied. I agree with the 3rd Respondent that the trial Judge did not place any additional burden of proof on the appellant on the issue of N2,500.00 (Two Thousand, Five Hundred Naira) daily relief for alternative transportation, her evidence being contradictory. The said phrase is merely a matter of style of writing of the trial Judge as no additional demand was made. When the appellant had nothing on the scale it cannot complain that the Lower Court demanded more upon what she had put on the scale. And of course she had the burden to place evidence sufficient enough to outweigh the evidence of the Respondents.
I find for the Respondents under issue one.
ISSUE TWO:
The appellant under issue 2 contended that the amount of N2,000,000.00 (Two Million Naira) is adequate compensation and cited the case of ADETORO v. OGO OLUWA & CO (SUPRA) and that the delay in determining the case was not the fault of appellant as the court found for the appellant for illegal, unlawful and wrongful conversion of her car and her evidence was not challenged. She relied on C. D. C. (NIG) LTD v. SCOA (NIG) LTD (2007) 6 NWLR (Pt.1030) 300 to contend that damages for conversion can be awarded along consequential damages flowing from the conversion.
Appellant submitted that the damages awarded is not adequate compensation taking the surrounding circumstances of this case, and relied in C.D.C. (NIG) LTD V SCOA (NIG) LTD (SUPRA), that the court having found for the appellant, the quantum of damages awarded is not adequate and urged the court to find for the appellant.
The 1st & 2nd Respondents did not proffer arguments on this issue.
The 3rd Respondent argued it as issue 2 and submitted that the damages awarded is sufficient and adequate in the circumstances as the measure of damages is the value of the chattel at the date of conversion as decided by the Supreme Court in the case of C.D.C. (NIG) LTD V SCOA (SUPRA) applying the decision in the case of STITCH V A.G. FEDERATION (1986) 12 SC 373. That the trial court took all circumstances into account before arriving at N2,000,000.00 (Two Million Naira) damages as held in ADETORO V OGO OLUWA KITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) 165. Furthermore, that the trial court has not fallen foul of the established principles of awarding damages and therefore the issue should be resolved against the appellant.
RESOLUTION:
The appellant challenged the award of N2,000,000.00 (Two Million Naira) special damages. She contended that it is not adequate enough to restore her to her previous position. It is important to state the difference between conversion and detinue and from there the measure of damages can be clearly distilled. The Supreme Court in the case of M.I.N. LTD v. M.F.K.W.A. LTD (2005) 10 NWLR (Pt 934) 645 said thus:
“There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue or bailment and detinue or trover, of which one result is that the same facts may constitute both detinue and conversion.”
The measure of damages must therefore flow from the claim. Here, the claim is conversion and as held by the Supreme Court in the above case, it is a one off action occurring on the day of conversion unlike detinue that is a continuous act. Here the appellant claimed the sum of N5,000,000.00 (Five Million Naira) being general damages for illegal, unlawful and wrongful conversion of Plaintiff’s Mercedes Benz 230 car by the defendants. Another claim for N5,000,000.00 (Five Million Naira) being general damages for inconvenience and pain meted out to the Plaintiff as a result of the default by the defendants. So when issue 3 formulated talks of special damages I am at a loss as to its origin. Since no special damages of N2,000,000.00 (Two Million Naira) was sought for, where did the court find special damages upon which it awarded N2,000,000.00 (Two Million Naira) as proved.
The appellant approached the issue from the principles of compensation for pecuniary loss and relied on ADETORO V OGO OLUWA KITAN TRADING CO. LTD (SUPRA). I agree that the award of damages generally is based on the principle of restitution for the injured party. It is broadly a monetary compensation. I however disagree with the learned counsel to the appellant that damages in an act for tort of conversion is awarded as at the date of judgment. It is trite that award of damages in a case of conversion is different from that of detinue. In conversion judgment is given as at day of conversion, a single sum, usually the value of the item at date of conversion and damages for its detention. The argument of awarding damages for the period of litigation is inconsistent with the principles of award of damages in cases of conversion. See the case of C.D.C. (NIG) V SCOA (NIG) LTD (2007) 2 S.C. 198 at 199 where the court held thus:
“The measure for damages for conversion generally is the value of chattel at the time of conversion together with any consequential damages flowing from the conversion.”
See also ORDIA V PIEDMONT (NIG) LTD (1995) 2 NWLR (pt.379) 516.
The Lower Court awarded N2,000,000.00 (Two Million Naira) as damages; an amount the appellant considers too low and inadequate. Where an award of damages is not special damages that was specifically pleaded with particulars and so proved, it is at the discretion of the trial court and can only be interfered with when certain conditions exist or established on appeal, see ADETORO V OGO OLUWA KITAN TRADING CO. LTD (2002) 9 NWLR (Pt.771) 165 and UWA PRINTERS LTD v. INVESTMENT TRUST LTD (1988) NWLR (Pt 92) 110 where the court held as follows:
“The Supreme Court, in ONERE V BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978) 6 – 7 SC 15, which was cited by the appellant in his brief, stated the principles upon which a Court of Appeal can interfere with award of damages by a trial court, thus –
“The principle upon which an appellate court will act in reviewing an award of damages are now well settled and can be summarized as follows. An appellate court is not justified in substituting a figure of its own for that awarded by the Lower Court simply because it would have awarded a different figure if it had tried the case at first instance. Before the appellate court can properly intervene it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.”
It is therefore incumbent on a party, seeking to disturb the award of damages by a trial court to prove to the appellate court that the trial court did not follow the principles relating to award of damages, see TANKO V STATE (2009) 4 NWLR (Pt 1311) 430; OJINI v OGO OLUWA MOTORS (NIG) LTD (1998) 1 NWLR (Pt 534) 353. Such a party must establish the conditions for interference, else, failing to do that, the award stays.
Now did the appellant establish any of the settled principles under which this court can interfere with the award of damages? For clarity, the principles are:
(a) The trial court acted on wrong principle
(b) The amount awarded was so high or so small as to make it an entirely erroneous estimate of the damages to which the Plaintiff is entitled or;
(c) The award was arbitrary.
It is obvious that the appellant did not establish any of the principles under which this court can interfere with the award of damages made by the trial court. That being the case, the court cannot interfere with the award of damages, see PETER V A.I.G. (2007) 7 NWLR (Pt 713) 602; S.P.D.C. (NIG) LTD V. TIEGBO VII (2005) 9 NWLR (Pt.931) 439; CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR 512; ODUWOLE & ORS V WEST (2010) 10 NWLR (Pt.1203) 598; AKINKUGBE V E.H. (NIG) LTD (2008) 12 NWLR (PT.1088) 375.
It is on the basis of the above that this issue is resolved against the appellant.
ISSUE THREE:
This is appellant’s issue 4, 1st & 2nd Respondent’s issue one and 3rd Respondent’s issue three.
The appellant argued that the evaluation done by the trial court was on a higher pedestal which the Lower Court expressed as ‘preponderate so sufficiently’ led the Lower Court into error as found at page 427 of the record. That the appellant was not cross examined which means the evidence was accepted as the truth on the value of the car but that the trial Judge misconstrued the evidential burden on the appellant. She referred to 427 where the record on the evidence of 1st & 2nd Respondent’s witness on the value of a similar car at the time of conversion was given. Appellant submitted the evidence of the Respondents is inconsistent and the trial court failed to evaluate it properly and more so, that the contradictory evidence of the 1st & 2nd Respondent is unreliable citing the case of C.D.C. (NIG) LTD V SCOA (NIG) LTD (SUPRA).
Appellant contended that with the evidence before the court, the court should have awarded the claim of N7,000,000.00 (Seven Million Naira) being value of the car and urged the court to find for the appellant under this issue.
1st & 2nd Respondent under their issue one argued that the law in a claim for conversion is the value of the chattel at the date of conversion may be claimed, citing CYRIL OJINI v. OGO OLUWA MOTORS (NIG) LTD (1998) 1 NWLR (Pt.534) at (353). That the accident occurred in 1999 and so it is the value of the car as at that date and not the value as at 2002 and that the appellant did not produce the purchase receipt of the car nor did she give evidence on when the car was purchased. That the trial Judge was therefore right not to speculate and to also hold that the burden of proving those particular facts rest with the appellant and in the absence of such evidence, the trial Judge made the right findings, placed reliance on ONYEJIEKWU v. OBIORAH ONYEJIEKWU (1999) 3 SC 1 and SECTION 136(1) OF THE EVIDENCE ACT on the burden of proof.
On the shifting nature of burden of proof, 1st & 2nd Respondents argued that it does not shift until the claimant has put evidence on the scale, citing ELIAS V OMO-BARE (2006) 11 NWLR (Pt.990) 65 and AGBI V OGBE (2006) 11 NWLR (Pt.990) 65.
The 3rd Respondent’s issue three is also issue three here. It contended that the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) is a fair value of the car as at December 2002 based on the evidence before the court and the ‘ipsi dixit’ of the appellant that the car is valued at N7,000,000.00 (Seven Million Naira) as at 2002 cannot avail her as her mere saying so, without more, cannot make the court grant the relief.
Learned counsel for the 3rd Respondent referred to the evidence of the 1st & 2nd Respondents witness on the offers made for the car by prospective buyers and that the same model of car sells for N450,000.00 (Four Hundred and Fifty Thousand Naira) as at December 2002 and relied on ADETORO v OGO OLUWA (SUPRA) and A.G. FEDERATION v. A.G. ABIA STATE (SUPRA). It submitted that the appellant failed to prove with concrete evidence the value of the car which made her evidence vague and unreliable and urged the court to so hold.
RESOLUTION:
Having resolved earlier in this judgment that the amount to be awarded for the chattel is its value on the date of conversion, can the appellant be said to have proved that the value of her car converted by the 1st & 2nd Respondents was N7,000,000.00 (Seven Million Naira) on the day it was converted?
The appellant pleaded and gave oral evidence that the car was valued at N7,000,000.00 (Seven Million Naira) as at 2002. It was a mere ‘ipsi dixit’ as the counsel to the 3rd Respondent posited. Since there is nothing to support her oral evidence on the value of the car. The value of the car at the time of purchase was also not stated. The accident occurred in 1999 and by 2002, the appellant wants the court to believe that the value of the car is N7,000,000.00 (Seven Million Naira). The question is how the value was arrived at, this the appellant did not say. Taking depreciation into account, the value of the car should be less than its purchase price. There is no evidence from where to assess the claimed value of N7,000,000.00 (Seven Million Naira). Indeed, the trial Judge could not have gone into speculation on the value of the car at conversion. The burden of proof rest on the appellant for a start until it shifts and nothing pushes it forward but evidence. In this case, what is before the court is the evidence of the 1st & 2nd Respondents on how much the car was priced when they advertised it for sale. There is nothing contradictory in the evidence of the 1st & 2nd Respondents on the offer they received from prospective buyer. Infact, if oral evidence is the gauge, then the evidence of the 1st & 2nd Respondents who are in the business of selling and importing cars should be more reliable compared to the appellant, a retired civil servant. The Respondents told the court that the value of the car was N450,000.00 (Four Hundred and Fifty Thousand Naira) but offers of less than N400,000.00 (Four Hundred Thousand Naira) were received and as at December, that model of the car was going for N450,000.00 (Four Hundred and Fifty Thousand Naira).
The trial court cannot be faulted in its evaluation of evidence before awarding N450,000.00 (Four Hundred and Fifty Thousand Naira) as value of the car. The appellant did not put forward evidence in support of N7,000,000.00 (Seven Million Naira), her oral evidence is rather vague and uncertain for the price of a car. She could have called a seller to back her named price. I also agree with the trial court that she did not prove her claim for N7,000,000.00 (Seven Million Naira) as value of the car at the conversion.
The argument therefore that the Respondent should bear the inflated price because of the delay in trial is untenable and unknown to law. Delay in trial is not the fault of the parties but just the reality of our slow process of adjudication which is largely due to our collective failure to inject processes that can compel parties and the court to fast track proceedings.
I find for the Respondents under this issue.
ISSUE FOUR:
The appellant’s issue 5 & 6 are left against 3rd Respondent’s issue 4 and they shall be so considered but as issue 4. The appellant challenged the finding that the 3rd Respondent is not privy to the conversion of the appellant’s car and whether the Lower Court was right in refusing to enter judgment against the 4th Respondent.
The 3rd Respondent is an insurer and the appellant submitted that it failed to comply with the provisions of Section 74(a) of the Insurance Act Cap 117, Laws of the Federation of Nigeria 2004, Appellant argued that the 3rd Respondent’s delay in settling the amount due on the cost of repairs of the appellant’s car constituted a breach of duty as an insurer under Section 73 of the Act and consequently, it makes it privy to the conversion of the Appellant’s car. She relied on BONIFACE ANYIKA & CO NIG LTD v UZOR 15 NWLR (Pt.1003).
Appellant drew the court’s attention to the delay and time gap between the first and second instalments which contributed to the conversion by the 1st and 2nd Respondents. That the bill for repairs was not settled in 90 days as the law requires.
Appellant referred to its letter to the 3rd Respondent which took 2 years to elicit a response. She contended that the trial Judge erred in dismissing that aspect of the claim, relied on C.D.C. (NIG) LTD v. SCOA (NIG) LTD & ORS (1986) 1 NWLR (Pt.14) at 60.
On her issue 6, the appellant submitted that the court erred by not making a pronouncement against the 4th Respondent as he did not contest the claim that therefore the Lower Court should have found that he admitted the claim. She relied on ATIKU V STATE (2010) 9 NWLR (Pt.1199) 253 to argue that the court is duty bound to consider the case put forward by the parties, resolve issues and arrive at a finding but that the Lower Court failed to do so.
She urged the court to find the 4th Respondent liable since he did not contest the claim.
The 3rd Respondent under its issue 4 submitted that the trial court was right in dismissing the part of the claim against the 3rd Respondent because there was no privity of contract between the appellant and the 3rd Respondent, it relied on LIBERTY INSURANCE CO. LTD V JOHN (1996) 1 NWLR (Pt 423) 192 at 193. It further argued that the appellant cannot maintain a claim against the 3rd and 4th Respondents and the only way an insurance company can be part of the claim is by way of third party proceedings. That the failure to employ the correct procedure defeated the claim. It relied on Section 11(1)(a) of the Motor Vehicle (Third Party) Insurance Act Cap M22 LFN 2004 to submit that the insured rights under the law have not been transferred to the appellant and the Lower Court was right to dismiss the claim.
On the application of Section 74(a) of the Insurance Act, the 3rd Respondent submitted that the relevant Section is Section 70(1)(a) – (b) of the Insurance Act which is to the effect that the 90 days begin to run from the date the claim is delivered to the insurer in writing by the insured.
On the delay in settling the bill which delay contributed to the said conversion by the 3rd Respondent, the 3rd Respondent submitted that it had nothing to do with conversion of the appellant’s car by the 1st & 2nd Respondents having settled the cost of repairs. It urged the court to dismiss the appeal.
The appellant in reply on points of law tried to distinguish between loss of use and loss of earnings taking their meaning from Black’s Law Dictionary, 7th Edition and loss of use was defined by the Supreme Court in the case of CAPPA & D’ALBERTO LTD V AKINTILO (2003) 9 NWLR (Pt.834) 49. They contended that the appellant did not claim for loss of earnings and she urged the court to find that she is entitled to N2,500.00 (Two Thousand, Five Hundred Naira) claim daily as loss of use.
On the inconsistency in figures mentioned by the appellant in her evidence, learned counsel submitted that the amount claimed is the average of the various figures mentioned in Exhibit BD 14, still relied on CAPPA & D’ALBERTO LTD VAKINTILO (SUPRA).
On the expression ‘preponderate so sufficiently’, appellant submitted that it is not the standard of proof and therefore the trial Judge erred in relying on it to decide the case.
Appellant relied on SUN INSURANCE PLC V ADEGOROYE (2003) 11 NWLR (Pt 835) 379 to submit that an insurer can be joined as a party to a claim against the insured upon 30 days pre-action notice. That the 3rd Respondent is therefore a proper party to this suit. She also relied on BONIFACE ANYIKA & CO NIG LTD V UZOR 15 NWLR (Pt 1003) for the definition of conversion and that failure, refusal and neglect of the 3rd Respondent to settle the claims of the 1st & 2nd Respondents interfered with the appellant’s dominion of the car and therefore the 3rd Respondent is liable for conversion. Furthermore, she asked if Section 70(1)(a)(b) of the Insurance Act absolves the 3rd Respondent.
Finally, the appellant urged the court to find for the appellant and allow the appeal.
RESOLUTION:
This issue which covers issue 5 and 6 of the appellant complains about the discharge of the 3rd Respondent from liability of conversion and the 4th Respondent generally.
The trial court, upon evaluation, arrived at the finding that the conversion was purely the act of the 1st and 2nd Respondents. The 3rd Respondent is the insurer to the 4th Respondent. The liability of the 3rd Respondent was clearly limited to the repairs of the damage done to the car from the rear not the front. The estimate made was duly paid for by the 3rd Respondent. What delayed completing the repairs as claimed by the 1st & 2nd Respondents was the damage done to the front of the car. If therefore conversion is defined to be any act which is an interference with the dominion of the true owner of goods, the question that arises therefore is how the 3rd party can be held liable for acts done by the company which the appellant had put forward as her usual repairer. There was no relationship between the 1st & 2nd Respondents and the 3rd Respondent.
The common law position is that a third party cannot join an insurer but the position has since changed by legislation. See the case of UNITY LIFE AND FIRE INSURANCE CO. V LADEGA (1996) 1 NWLR (Pt.427) where this court, Per OGUNTADE JCA (as he then was) held as follows:
“Under the common law, the Plaintiff in this matter, could not have joined the appellant as a party to the suit brought against the persons said to be responsible, for the Plaintiff’s injuries. However, Section 11 of the Insurance (Special Provisions) Decree No.40 of 1988 altered the position. The Section provides:
“Where a third party is entitled to claim against an insured in respect of a risk insured against, he shall have a right to join the insurer of that risk in an action against the insured in respect of the claim: provided that before bringing an application to join the insurer, the third party shall have given to the insurer at least thirty days notice of the pending action and of his intention to bring the application.”
The argument of the 3rd Respondent that the insurer cannot be sued along with the insured is therefore not correct even-though doing so is subject to some conditionalities. It is correct to say that the Supreme Court in the case of ANDREW O. AJUFOR V CHRISTOPHER AJABOR & ORS (1978) 6 – 7 SC. 39 at 52 held that a faulty party could not sue the insurer ab initio. That it is so because there would be no privity of contract between the parties and that even if such right was conferred by Section 10 of the Motor Vehicles (Third Party) Insurance Act Cap 126 Laws of the Federation, it would be inappropriate to bring in the insurer as a party except, perhaps, by way of a third party proceedings based on contract of indemnity if any.
The question to ask here is what is the cause of action between the appellant and the 3rd Respondent which had paid its liability to the insured for the repairs of the car. What could be the basis for joining the 3rd Respondent in a claim for conversion perpetrated by the 1st and 2nd Respondents? The 3rd party can only be brought in as indemnifier of the insured who actually hit the car of the appellant. In any case, the claim here is basically for conversion and its attendant claims for damages and not for the act of hitting the car. The claim of the appellant highlighted at the beginning of this judgment did not direct any claim to the 3rd Respondent as an insurer except for the appellant to argue that it contributed to the delay in effecting repairs. Assuming the repairs were actually delayed, the claim here is for conversion and not failure to pay the cost of repairs within time. The appellant circumscribed her claim and must remain within it.
I agree with the trial Judge that the 3rd Respondent had no liability to warrant entering judgment against it. It had no part in the conversion nor did it contribute to the inconvenience occasioned the appellant due to the conversion. Afterall, the car was repaired before its conversion.
On the second leg of this issue, which is whether the trial court was right not to enter judgment against the 4th Respondent, the trial court did not pronounce the 4th Respondent liable. It is clear from the findings above that the liability of the 4th Respondent was adequately cleared by the 3rd Respondent in offsetting the cost of repairs and that was why the 1st and 2nd Respondents could convert the car to their issue. The appellant did not claim for any outstanding cost of repairs from the 3rd and 4th Respondents and there was no evidence in that regard before the court.
The fact that the 4th Respondent did not contest the claim, notwithstanding, the burden of proof still rest on the appellant, see the case of AKINYELE v. AFRIBANK PLC & ANOR (2005) 17 NWLR (Pt.955) 504 where this Court held thus:
“In the case of OGUNDIPE V A.G KWARA STATE (1993) 8 NWLR (Pt 313) 558 at 568 this court Per ACHIKE, J.C.A as he then was of blessed memory held thus:
“But we must hasten to add that it will be wrong for a plaintiff to assume that he will be entitled to judgment as a matter of course, because the defendant had failed to tender any evidence, as in exactly the situation in the instant case. The trial court is still under a duty to evaluate the evidence adduced by the plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the plaintiff or any person who asserts, is to prove his claim on balance of probabilities and is in no way mitigated by the opposing side’s election to blow a muted trumpet.”
This is the situation here. The trial court evaluated the evidence and found none to support the claim against the 4th Respondent and rightly declined to make any pronouncement to find him liable. I need not go further. This issue is also resolved against the appellant.
On the whole therefore, this appeal is unmeritorious, it lacks merit and is hereby dismissed. The judgment of HON. JUSTICE A.M. NICOL-CLAY delivered on the 24th day of November, 2010 is hereby affirmed.
Each party to bear its cost.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with his reasoning and conclusions. He has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal lacks merit and should be dismissed. I also dismiss the appeal and affirm the judgment of Nicol-Clay J delivered on 24/11/10. I abide by the order as to costs.
TIJJANI ABUBAKAR, J.C.A.: I read the comprehensive lead Judgment prepared and rendered by my learned brother Nimpar, JCA.
My lord sufficiently covered the field, I have nothing useful to add. I adopt the entire judgment as my own.
Appearances
Segun Sipeolu, F. Asunawinne and D. BankoleFor Appellant
AND
Bukola Akinola for 1st and 2nd Respondents
O. O. Omole and Mrs. O. A. Atubi for 3rd Respondent
4th Respondent AbsentFor Respondent
