MV “NORDICA” & ORS v. THE NIGERIAN PORTS AUTHORITY (2015)

MV “NORDICA” & ORS v. THE NIGERIAN PORTS AUTHORITY

(2015)LCN/8029(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of November, 2015

CA/L/792/2009

RATIO

APPEAL: ISSUES FOR DETERMINATION; THE EFFECT OF FORMULATING ANY ISSUE OUTSIDE THE GROUNDS OF APPEAL
The position of the law is that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out? see Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591 SC. per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: OMNIBUS GROUND; WHAT IS AN OMNIBUS GROUND AND WHAT THE COURT OF APPEAL IN ITS PRIMARY ROLE IN CONSIDERING THE JUDGMENT OF THE TRIAL COURT WOULD HAVE SOUGHT TO FIND OUT

When an Appellant alleges that a decision is against the weight of evidence, what he means is that when the evidence he adduced is balanced against that of the Respondent, the Judgment in favour of the Respondent will be against the weight, which should have been given to the totality of the evidence- see Mogaji v. Odofin (1978) 4 SC 91, Agbamu v. Ofili (2004) 5 NWLR (Pt.867) 540 and Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731, and Akinlogun v. Oshoboja (2006) 12 NWLR (Pt.993) 60 at 82 SC, where Kalgo, JSC, explained as follows-
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.”
See also Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608 SC, wherein this Court had proceeded on such a complaint to fault the decision of the trial Court, and the Supreme Court per Dahiru Musdapher, JSC (as he then was) clearly stated-
“Where the Judgment in the Court of Appeal was attacked only on the ground of being against the weight of evidence, the Court of Appeal in its primary role in considering the Judgment of the trial Court would have sought to find out-
(a) The evidence before the trial Court;
(b) Whether it has accepted or rejected any evidence upon the correct perception and approach;
(c) Whether it correctly made the assessment of the value on it;
(d) Whether it used the imaginary scale of justice to weigh the evidence on both sides; and
(e) Whether it appreciated, upon the preponderance of evidence, which side of the scale weighed having regard to the burden of proof.
See Egonu v. Egonu (1978) 17-12 SC 111. To put it another way, this Court in Ogboda v. Adulugba (1971) 7 All NLR 68 at 71 observed-
?”Manifestly, such a ground of appeal must endeavour to show either the trial Judge wrongly accepted evidence, which he should not legally have accepted or that the decisions and inferences drawn from the evidence so accepted are unjustified?.
It is noteworthy that when a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced before the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.” per. AMINA ADAMU AUGIE, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; WHEN CAN EVIDENCE CONTRADICT

Evidence contradicts another when it affirms the opposite of what that other evidence stated and not when there is a minor discrepancy between them. In other words, two pieces of evidence contradict each other when they are by themselves inconsistent, however, a discrepancy may occur when a piece of evidence stops short of or contains a little more than what another contains – some minor difference in the details – see Owena Bank Plc v. Olatunji (2002) NWLR (Pt.781) 259. In this case, the lower Court clearly stated as follows-
“The issue that calls for determination is who drove the Crane at the time the said Container fell on the deck of the vessel.” per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: INTERFERANCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF TRIAL COURT

A trial Court is the King of all that it surveys and hears in the Courtroom and this Court cannot rely on extraneous factors to overturn its decision that is based solely and absolutely on the oral testimonies of the witnesses before it. The law insists that the evaluation and the ascription of probative value to oral evidence is the exclusive preserve of the trial Court, and we cannot interfere when findings of facts are supported by evidence on record – see Frank Ebba v. Ogodo & Anor (1984) 4 SC 84, where Obaseki, JSC, clearly stated as follows-
“It is no business of the appeal Court to substitute its view of the evidence for that of the evidence for that of the learned trial Judge and I find it again necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted. The need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal Courts when dealing with appeals raising questions of fact.”
See also Roda v. FRN (2015) 10 NWLR (Pt. 1458) 427 SC, wherein it was held-
“…The trial Court accepted the evidence as true. This makes it difficult to accept on what foundation the Court below set out on its review as doing so could be entering into on arena within the exclusive domain of the trial Court especially since the appellate Court has no opportunity of hearing and watching the demeanor of the witnesses… For a fact, the re-evaluation of the oral evidence by the Court below was improper and the issue is resolved in favour of Appellant.” A word is enough for the wise, and I am not about to defy the well-known law that prohibits this Court from interfering with findings of a trial Court that are based on oral testimony. The fact is that the Appellants failed to show that the trial Court wrongly accepted evidence that it should not legally have accepted or that its decision that is drawn from the evidence so accepted are unjustified. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. MV “NORDICA”
2. Owners, Charterers, Operators, and Managers of MV “NORDICA”
3. Owners, Charterers, Operators, and Managers of MV “JOLLY ZAFFIRO” Appellant(s)

AND

THE NIGERIAN PORTS AUTHORITY Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This Appeal arose from Third Party Notices issued against the Respondent – NPA and Messrs. Supreme Stevedoring & Shorehandling Company (Nig.) Ltd.

The original Plaintiff – Messrs. Beta Glass Plc., sued the Appellants at the Federal High Court, wherein it had claimed against them jointly and severally, the sum of N128, 575, 300,00 as special and general damages for damaging-
“Three Wooden Containers of Machinery for Natural Gas Glass Furnace (the goods) on board MV JOLLY ZAFFIRO at the Part of Genoa, Italian Seaport, for onward delivery to the Plaintiff at Apapa, Lagos Seaport.”
The Appellants, as Defendants to the action, filed their Statement of Defence, and were later granted leave to issue and serve the Third Party Notices on the Respondent and Messrs. Supreme Stevedoring & Shore handling Co. Nig. Ltd. Pleadings were ordered by the lower Court, and in the third party proceedings, the Appellants claimed the following reliefs against them jointly and severally-
1. A Declaration that the Defendants [Appellants herein] are entitled to be indemnified by the Third Parties against the

1claim of the Plaintiff (Messrs. Beta Glass Plc.) against the Defendants [Appellants] in this Suit.
2. Judgment for any amount which may be found to be due from the Defendants (Appellants herein) to the Plaintiff [Messrs. Beta Glass Plc,]
3. Judgment for the amount of any costs which the Defendants [Appellants] may be adjudged to pay to the Plaintiff (Messrs. Beta Glass Plc.) and for the amount of their own costs incurred in their defence of this action and of the proceedings against the Third Party herein.
4. Further or other relief.
?
However, in the course of the third party proceedings, Messrs. Beta Glass Plc., and the Appellants settled amicably. The lower Court entered Judgment in its favour against the Appellants as per Terms of Settlement; part of which reads –

“That the Defendants (Appellants) without admitting liability for the damage to container Number LMCU 0701812M, LMCU 043609/8, LMCU 044255/8 and by virtue of Bill of Lading Number 141 of 24/1/2002 would pay to the Plaintiff [Messrs. Beta Glass] the sum of Euro 500, 000 in full and final settlement of the Plaintiffs claims against the Defendants, which payment shall be without prejudice to the

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Defendant’s claims for an indemnity from the Nigerian Ports Authority [Respondent herein] and Messrs, Supreme Stevedoring & Shore handling Co, (Nig.) Ltd.”
?
Even so, the third party proceedings continued, and at the trial that ensued, three witnesses testified for the Appellants – PW1, Mr. Michael Love II Smith, said he was an operation manager with S.D.V. Nigeria Ltd. the parent company for Cross Marine Ltd. the shipping Line Agency for 1st Appellant – MV Nordica. Femi Akinjor, a Ship Supervisor with S.D.V. Nigeria Ltd. testified as PW2, and PW3 is Mrs. Florence Uzokwe, a Claims Manager with Cross Marine Services. They also tendered three Exhibits – the copy of Bill of Lading dated 24/1/2002 (Exhibit A); Survey Report issued by Union Inspection and Superintendence (Exhibit B) and Survey Report issued by Transmarine Tally Services (Exhibit B1). The Respondent, who was the 1st Third Party, did not call any witness. The 2nd Third Party called its cargo operations Manager, Michael Osayenum, as DW1, and one of its Crane Drivers, Muhammad Aliyu Zakari, who testified as DW2.

?In a nutshell, the Appellants attributed the damage that led to the said Suit to the

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negligence, recklessness, and/or breach of duty on the part of the Third Parties, their servants or agents, who had lifted the original Plaintiffs container from the said Ship in an unbalanced/shifted position on the holster, despite the obvious risk to the container, and despite advice to the contrary. The Third Parties, however, blamed the fall of the container on the Appellants. The learned trial Judge, Abdullahi Mustapha, C.J., accepted the evidence of the Third Parties, and held as follows in his Judgment delivered on 12/1/2009-
?
“…It is not in dispute the fact that during the discharge operation of MV NORDICA…Container No. LMCU 070181/2 fell down on the deck of the vessel. The issue that calls for determination is who drove the crane at the time the said Container fell on the deck of the vessel…. PW3 admitted under cross-examination that she was in the office during the discharge of the Cargo and was not in a position to know what happened at the Port during the discharge and she was not present when the Container fell off. Having so admitted, it is my view that PW3 cannot tell us who drove the Crane at the time the Container fell on the deck of

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the vessel. PW1 said he was on the quay side with the Ship’s Chief Officer and noticed that the Container looked unstable and shouted “stop”. He testified to the effect that it was the driver of the 2nd Third Party that drove the Crane when the Container fell on the side and that the damage to the Container was extensive. He further testified to the effect that it is not customary for crew members to drive a Crane during discharge operations and that Clearing Agents of the vessel do not have authority to instruct the crew to drive the Crane as such authority could only come from either the Chief Officer or Master of the Ship. PW1 however, admitted under cross examination that on the day of the incidence, he was initially not on board the vessel but was on the quay side. Since he was not on board the vessel when the discharge was going on and even though he claimed that being on the quay side he had a good visibility, his evidence as to who was driving the crane at the time the Cargo fell off is suspect particularly having regard to the testimony of DW1, who was on board the ship, and who testified to the effect that PW1 could not see the Cargo lifted one metre

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above the deck because the ship is so high and somebody far off cannot see it. I cannot therefore accept the evidence of PW1 that it was the driver of the 2nd Third Party that drove the Crane at the time the Container fell – PW2 – said that he was present – – when MV Nordica was being discharged by a Staff of the 2nd Third Party, Ali Zakari, a Crane Driver. He said that when Ali Zakari got the Cargo lifted, the Cargo was not balanced during lifting and the Cargo was lowered down back on the deck when they heard a shout from ashore during the lifting saying “stop” “stop” and the cargo was lowered down back on the deck.
What made his (PW2) testimony difficult to believe is that as a Ship Supervisor when he noticed that the Cargo was not balanced why did he not ask the crane driver to stop? He didn’t do so. Rather he claimed that it was somebody from ashore who shouted ”stop” ?’stop?’. He said that the Cargo was lifted up the second time and the Cargo fell off. After hearing the shout ?stop’ ?stop? why did he not stop the crane driver? What was he supervising? What PW2 actually did as per the testimony of DW1 was to instruct a crew man

6
to drive the crane and the Cargo fell. I reject his testimony that he did not instruct a crew member to operate the crane. DW1, who was on board the MV NORDICA when the discharge was taking place, said inter alia in his evidence in chief-
“Our Crane Driver started lifting the Cargo. He lifted it up small from the deck about a metre but brought it back on deck and he told the Supervisor of the Plaintiff by name Mr. Akinjor that he cannot lift it again because the Cargo was not secured. Mr. Akinjor instructed a crew man to lift it because they were in very much hurry. The crew men lifted and the cargo fell”.

The Crane Driver of the 2nd Third party, one Muhammad Aliyu Zakari, who was not cross-examined by the Plaintiffs? Counsel, said in his evidence in chief-
?
?I lifted it (Cargo) about one foot from the deck. I saw the Cargo shift a little. I lowered the Crane and put the Cargo back on deck. I told the Ship Supervisor they should re-lash the Cargo because it was not well lashed. The Ship Supervisor was arguing with me that I should lift the Cargo, I said ‘no? I started coming from up – – – As I was coming down I saw one crew member also going up.

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He tried to lift the Cargo again. Just a little from the deck, the Cargo fell on its side”.
?
I believe the evidence of DW1 and DW2 that the Crane Driver of the 2nd Third Party refused to continue to drive the Crane and that at the time the Cargo fell down on the deck of the vessel, it was not the Crane Driver of the 2nd Third Party that was driving the Crane. Rather, it was the crew member of MV NORDICA that drove the Crane when the Cargo fell down on the deck of the vessel. The fact that the Clearing Agents of the vessel did not have authority to instruct the crew to drive the Crane, did not, to my mind, remove the fact that it was indeed the crew member of MV NORDICA that drove the Crane at the time the Cargo fell down on the deck of the vessel. I hold that the Plaintiffs have failed to prove on the balance of probabilities that it was the Crane driver of the 2nd Third Party i.e. Messrs. Supreme Stevedoring & Shorehandling Company Nigeria Limited that drove the Crane at the time the Cargo fell on the deck of the vessel. It is, therefore, irrelevant to consider the point whether the 2nd Third Party was on Agent of the 1st Third Party. I hold that the

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Plaintiffs are not entitled to be indemnified by the Third Parties. This suit is hereby dismissed”.
?
Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal that contains one Ground of Appeal- the omnibus Ground of Appeal that complains- “the Judgment is against the weight of evidence”. They also formulated one Issue for Determination in their Brief settled by Emmanuel Achukwu, Esq., i.e.-

“Whether the Trial Court properly evaluated the totality of the evidence adduced before it before arriving at its decision to dismiss the Appellants’ Suit.”
?
The Respondent, however, submitted in its own Brief of Argument prepared by Alaba Okupe, Esq., that the sole issue that calls for determination is as follows-
“Whether the Lower Court?s Judgment which dismissed the Appellants claims (as postulated by their Statement of Claim in the Third Party Proceedings in the Lower Court) for inter alia a declaration that the Appellants (Plaintiffs in the said Third Party Proceedings) are entitled to be indemnified by the Respondent (1st Third Party) against the claim of the Plaintiff – (Beto Glass Plc.) in the main Suit against the Appellants (Plaintiff in

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the Third Party Proceedings) is appealable by way of an omnibus ground of appeal.”
?
Obviously, the issue formulated by the Respondent is not only a mouthful but “transcends the bounds of an issue properly so called and has entered into the realms of a preliminary objection”- see Okelue v. Medukam (2011) 2 NWLR (Pt. 1230) 176. wherein this Court per Lokulo-Sodipe, JCA, further held that-
“…There is a difference between a preliminary objection and an issue for determination. …If the Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure adopted in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Respondent cannot challenge the competence of the appeal by an issue he has formulated for the determination of the appeal”.
?
?Yes, it is well settled that there is a difference between a Preliminary Objection and an issue for Determination, which is raised from the Grounds of Appeal, and is usually a proposition of law or of fact that is in dispute between the Parties; which is necessary for determination by this Court, and the

10
determination of which would affect the result of an appeal- see Adejumo & Ors v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417 SC. To this end, it’s primary purpose is to narrow issues in the Grounds of Appeal in the interest of accuracy, clarity and brevity – see Ogbuayinya v. Okudo & Ors (No.2) (1990) 8 NWLR (pt. 146) 55 SC.

Even worse, stripped of its verbiage, the Respondent’s issue questions whether the decision “is appealable by way of an omnibus ground of appeal”, which has no bearing on the decision appealed against, and grounds of appeal must arise from the ratio decidendi of the decision appealed against and issues formulated for the determination of the appeal by this Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor v. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt. Pt. 863) 243. No law prohibits a Respondent from formulating his issues for determination, but it is also settled that a Respondent, who has not cross-appealed or filed a Respondent’s Notice, is not entitled to formulate any issue for determination outside grounds of appeal, which contain the complaints against the decision

11
– see Mushuwareng v. Abdu (2003) 11 NWLR (Pt.831) 403, Nwankwo v. FRN (2003) 11 NWLR (Pt.809) 1, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Igbinoba v. Igbinoba (2003) 3 NWLR (Pt.803) 39, and Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475, where the Supreme Court firmly stated as follows-
“The Respondents who have not filed any cross-appeal from which grounds of appeal these further issues could have arisen, nor filed a Respondent’s Notice to affirm the Judgment of the Court below on grounds other than grounds argued by the Appellants, have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the Appellants.”
?
The position of the law is that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out? see Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591 SC. In this case, the “issue” formulated by the Respondent, which is not hinged on the Ground of Appeal in the Notice of Appeal, is not and cannot qualify as an issue for Determination. Usually, such issues are struck out and arguments thereon

12 discountenanced, however, I will address it as a preliminary issue without going into the details of arguments canvassed for or against the said issue/Objection by the Parties.

The Appellants’ only Ground of Appeal is the omnibus ground of appeal, which complains that the said “Judgment is against the weight of evidence”. When an Appellant alleges that a decision is against the weight of evidence, what he means is that when the evidence he adduced is balanced against that of the Respondent, the Judgment in favour of the Respondent will be against the weight, which should have been given to the totality of the evidence- see Mogaji v. Odofin (1978) 4 SC 91, Agbamu v. Ofili (2004) 5 NWLR (Pt.867) 540 and Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731, and Akinlogun v. Oshoboja (2006) 12 NWLR (Pt.993) 60 at 82 SC, where Kalgo, JSC, explained as follows-
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.”
See also Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608 SC, wherein this

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Court had proceeded on such a complaint to fault the decision of the trial Court, and the Supreme Court per Dahiru Musdapher, JSC (as he then was) clearly stated-
“Where the Judgment in the Court of Appeal was attacked only on the ground of being against the weight of evidence, the Court of Appeal in its primary role in considering the Judgment of the trial Court would have sought to find out-
(a) The evidence before the trial Court;
(b) Whether it has accepted or rejected any evidence upon the correct perception and approach;
(c) Whether it correctly made the assessment of the value on it;
(d) Whether it used the imaginary scale of justice to weigh the evidence on both sides; and
(e) Whether it appreciated, upon the preponderance of evidence, which side of the scale weighed having regard to the burden of proof.
See Egonu v. Egonu (1978) 17-12 SC 111. To put it another way, this Court in Ogboda v. Adulugba (1971) 7 All NLR 68 at 71 observed-
?”Manifestly, such a ground of appeal must endeavour to show either the trial Judge wrongly accepted evidence, which he should not legally have accepted or that the decisions and inferences drawn from the evidence so accepted are

14
unjustified?.
It is noteworthy that when a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced before the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.”

In this case, the Appellants’ Ground of Appeal is an omnibus ground of appeal, and their complaint calls into question the appraisal and evaluation of all the evidence by the lower Court, and is not against any definite issue or evidence. In very clear terms, the Respondent’s Issue/Objection is inconsequential and the coast is now clear to consider the Appeal itself, which from all indications, deals purely with the question of evaluation of evidence, and nothing else.

The Appellants contend that the lower Court did not properly assess the totality of the evidence before arriving at the decision to dismiss their Suit. They submitted, citing Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81 at 93 SC that having regard to the evidence vis-a-vis the pleadings, the lower Court was wrong to hold that they

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failed to prove on the balance of probabilities that it was the crane driver of the 2nd Third Party that was driving when the cargo fell on the deck of the vessel, and thereby dismissed their Suit. They referred us to Paragraph 10 of their Statement of Claim, paragraph 2 (b) of their Reply to the Statement of Defence of the 2nd Third Party, PW1’s account of the incident to the Independent Surveyors in Exhibit B, PW1’s and PW2’s testimony in Court, paragraph 11(d) of the Respondent’s Statement of Defence, paragraph 6 (d) of that of the 2nd Third Party, and submitted that their oral evidence is consistent with their pleadings but that of the Respondent contradicts their pleadings. They further argued as follows on the question of who had shouted “stop”-
“In their oral testimony in Court, the Respondents denied that material fact they had pleaded and stated that they did not hear anyone shout “stop” “stop”, – – DW1 said, “I did not hear PW1 shout “stop”. – – DW2 testified that “it was not PW1 who shouted on me from ashore to stop. It was my own experience that I used”. PW1?s testimony that he shouted “stop” was corroborated by PW2 when PW2 testified – – that

16 “we heard a shout from ashore during the lifting saying “stop?, ?stop?, – – “Someone” who shouted from ashore was no other person than PW1 as can be seen from (i) PW1’s narration of the incident in Exhibit B immediately after the damage to the cargo on 28/02/02; (ii) the averments in paragraph 10 and paragraph 2(b), and (iii) PW1’s oral testimony in Court – – Having regard to the earlier averments in the Respondent’s and – – the 2nd Third Party’s pleadings that the crane driver heard someone shout “stop” “stop”, their subsequent denial of that fact goes to no issue.”
?
They also submitted, citing Saidu v. Abubakar (2008) 12 NWLR (Pt. 1100) 201, that where evidence is at variance with the facts pleaded, its goes to no issue; that the Respondents lied, and when a witness lies, the consequence is that he is an unreliable witness- Ukaegbu v. Nwokolo (2009) 3 NWLR (Pt. 1127) 194; that the Respondent’s witnesses contradicted themselves since DW1 said that “Our crane discharged it”, and DW2, the Crane Driver, said- “the crane used on that day is inbuilt crane on board the ship; it is owned by MV NORDICA”; and if they could give conflicting

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testimonies on such a simple issue, how could their evidence as to who drove the crane when the cargo fell, be believed?

Furthermore, that where there is conflict in the testimonies of a witness, the trial Court is enjoined not to act on the testimonies of any of the witnesses, citing Nwoga v. Benjamin (2009) 5 NWLR (Pt. 1133) 152, Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; and that the lower Court’s findings/decisions are not supported by the pleadings or the evidence for the following reasons-
?
– PW1’s statement that he was on the quay side (ashore) during the course of discharge was NOT made for the first time under cross-examination as the learned trial Judge had erroneously stated. In his examination-in-chief – – PW1 stated: “…I was on the QUAY side with the ships Chief Officer and I noticed that the container looked unstable. So I shouted from the Quay side “stop”. Also – in Exhibit B – -, even before the instant suit was filed, the Surveyors reported that PW1 told them “he was ashore monitoring the discharge of the subject consignment when he noted that the cases had shifted to one side of the flat rack, when it was about 1 meter above the vessel’s

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deck. According to him, he immediately shouted to the winch-man to stop lifting the flat rack…” (Highlight by the Appellants)
– DW1?s testimony that PW1 could not see the Cargo lifted one metre above the deck because the ship was so high and somebody far off could not see it, was rebutted by PW1 when he testified – – that he “had a good visibility of what was going on the deck because it was o small ship”. (Highlight theirs)
– The quayside or ashore in a port or wharf cannot be described as being far off from a vessel, being the nearest position on land to the vessel, by which a vessel berths. The quayside in a port is like the bank of a river. When there is, for example, a cargo of rice to be discharged from a vessel, it is by the quayside that trailers/trucks that intend to carry the bags of rice will pack, and from the vessel the stevedores carry the bags of rice and load them onto the trailers/trucks. The pictures in Exhibits B and B1 will show that there were vehicles and human beings near the vessel MV ‘NORDICA’ by the quayside.
?- In Exhibit B, which was made prior to the filing of the instant action, PW1 was reported by the Surveyors as saying that

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he was ashore monitoring the discharge of the subject consignment when he noted that the cases had shifted to one side of the flat rack, when it was about 1 meter above the vessel’s deck, and in paragraph 2 (a) of the Appellants’ Reply to the Statement of Defence of the 2nd Third Party – – it was averred that on 28/2/2002 while at Berth 9 Roro Port, Apapa, Lagos, witnessing the discharge of cargo from the MV “NORDICA”, the Cargo Operations Manager of SDV Nig. Ltd, noticed that the container No. LMCU/1070181/2 had shifted on one side of the bolster when it was lifted about 1 meter above the vessel’s deck”. In his oral testimony before the Court below PW1 testified that “at this time the container had been lifted at about one metre above the Deck…” The testimony of PW1 aforesaid was corroborated by DW1 when he testified “Our crane driver discharged it. Our crane Drivers (sic) started lifting the cargo. He lifted it up small from the deck about a metre but brought it back on deck…”
?
?It is their contention that the foregoing shows that PW1 was a witness of truth.They further argued that the lower Court’s decision to reject PW2’s testimony is also not supported

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by the pleadings or evidence for the following reasons-
– PW2 testified – “I was present on 28/2/02 when NORDICA was being discharged. I observed the discharge process”, – – His role during the discharge process was merely observatory. It was not in evidence that it was the duty of the PW2 to direct, control or tell the DW2 (crane driver) how to perform his professional duty.
– PW 2 said “the second lifting was by MR. ALIU ZAKARI. I was on board the vessel”.
– Under cross-examination, PW2 stated ? “It is not true that I was the one who instructed a crew member to operate the crone after the’ first fall – – I did not instruct a different person to drive the Crane and discharge the cargo.”
They further argued as follows-
– It is a notorious fact, which the trial Court ought to have taken judicial notice of that it is the responsibility of stevedoring companies to load and unload cargoes at the ports. – – What was the reason for the presence of Messrs. Supreme Stevedoring and Shore handling Company Nig. Ltd on board the MV “Nordica” on the fateful day”? – – Their duty was to engage in the discharge of the cargo then laden on board the MV “NORDICA”. DW1 said-

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– “our job ends (sic) after the discharging”.
– It is not customary for a crewmember of a vessel to engage in discharge operations and it does not accord with practice at the ports for a clearing agent to command a crewmember to engage in discharge operations. PW1 – – stated that “it is not customary for crew member to drive the crane during discharging operations…”, and – – PW1 stated under cross- examination that “we do not have authority even as agents to the ship to order the crew, even in on emergency situation”. It would be seen that the learned trial Judge seemed to have agreed that agents did not have authority to instruct the crew of a vessel to drive a crane when the learned trial Judge at page 184 of the Records held – “The fact that the clearing agents of the vessel did not have authority to instruct the crew to drive the crane…”
– Crew members of a vessel have their different designations and job descriptions- (see) the Crew List attached to Exhibit B1 as Annex 04 from which it can be seen that none of the 14 crew members listed was described as crane driver or operator.
?- When the incident occurred, as is customary in shipping practice, the

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Master of the MV NORDICA issued a Letter of Protest (attached to Exhibit B1 as “ANNEX 03). The Letter of Protest issued by the Master of the vessel on the day of the incident (28.02.02 at 11.08 local time) described the cause of the damage to the container as “improper cargo handling/crane operation”. If the cause of the damage to the cargo was caused by a member of the crew of the MV “NORDICA”, the Master of the MV “NORDICA” would not have issued the Letter of Protest. In fact, in the opening paragraph of the Letter of Protest in Exhibit B1 the Master of the vessel clearly stated – “…the damage was in no way caused by any fault in ship’s management”.
– The Respondents did not write any letter of protest when they alleged that the damage was caused by a crew member of the vessel when he was allegedly instructed by PW2 to drive the crane. Under cross-examination, DW1, who said that he was the Cargo Operations Manager’ and had 15 years’ work experience, said that he knew what a letter of protest was, but that they did not write a notice of protest.
?It is their contention that since their evidence was more consistent with their pleadings; more weight ought to

23
have been attached to their evidence rather than the Respondent’s, whose evidence was contradictory to their pleadings. They added that if the lower Court had considered the contradiction between the Respondent’s averments and denial of same, the contradictory evidence of DW1 and DW2 as to the crane that was used; the consistent account by PW1 of the cause of the incident in Exhibit B, then it would not have attached any probative value or weight to the Respondents’ evidence, and would not have arrived at the finding that it was a crew member of the MV Nordica that drove the crane when the cargo fell, instead of the crane driver of the Respondents whose duty it was to discharge the cargo in the first instance; that its decision was perverse as the trial Court shut its eyes to the obvious facts, citing Osuji v. Ekeocha (supra); that this Court is competent to tamper with its evaluation of evidence and/or findings, if they are not based on a proper and dispassionate appraisal of evidence in support of each party’s case or where such findings are perverse in the nature of the evidence or where on the face of the record, it is clear that justice has not been done,

24
citing Savannah Bank v. CBN (2009) 6 NWLR (Pt. 1137) 237, Unity Bank v. Nwadike (2009) 4 NWLR (pt. 352) 360. Thus, we were urged to resolve this issue in their favour, and allow this Appeal.

The Respondent, on its part, detailed basic and elementary principles of pleadings in its Brief, which it argued, would make the resolution of the issue for determination much easier. To this end, it cited the following authorities- Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries Plc. (2007) 3 MJSC 29, Ifeta v. Shell Pet. Dev. Co. (Nig.) Ltd. (2006) 7 MJSC 121, Arabambi & Anor v. Advanced Bev. Ind. Ltd. (2006) 3 MJSC 61, Emegokwue v. Okadigbo (1973) 1 NMLR 972, Odunsi v. Bamgbala & 3 Ors (1995) 7 NWLR (Pt. 374) 641, Owners, MV Gongola Hope v. Smurfit Cases Nig. Ltd. (2007) 9 MJSC 90, Nwogo & Ors v. Njoku & Ors (1990) 3 NWLR (Pt. 140) 570, Ehimare & Anor v. Emhonyon (1985) 1 NWLR (Pt. 2) 117 and Ezemba v. Ibeneme & Anor (2004) 10 MJSC 54. It summarized its arguments set out from pages 7 to 19 of its Brief, as follows-
?(a) Since the Appellants failed to aver that there is any contractual obligation, either expressly or impliedly, as to indemnity or

25
trade usage or custom of Nigerian Ports to indemnify the appellants there is nothing to adjudicate upon by this Court.(b) If there is no evidence led in support of a relief, the Court will not be able to grant it.
(c) An omnibus ground of appeal also implies that there is no evidence, which if accepted, would support the findings of the trial Judge.
(d) An omnibus ground of appeal cannot be used to raise any issue of law or error of law. For a complaint on a finding of fact or a specific issue, a substantive ground of appeal must be raised challenging that finding. It cannot be by an omnibus ground.
(e) The Appellants upon an exchange of pleadings in the 3rd party proceedings inter alia claimed a declaratory relief against the Defendants (now Respondent).
(f) The claim for contribution by the rules of pleadings was abandoned in the Statement of Claim, which supersedes the 3rd Party Notice that is akin to a Writ of Summons.
(g) At every stage of the proceedings in the lower Court and in this Court, the Parties were never in any doubt that the Appellants postulated their claim in their Statement of Claim inter alia on a declaratory relief and consequential orders.
?(h)

26
Declaratory action rather than being an ancillary or consequential relief is often itself a cause of action. For a person to be entitled to a declaration he must show the existence of a legal right is subsisting or in the future and that the right is contested.
(i) The purpose of a declaratory relief sought from the Court is essentially an equitable relief in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from averments in his affidavit or evidence adduced at the trial.
(j) In law the Court does not make declaration of right either on admission or in default of defence. The success of a Plaintiff in such an action depends entirely on the strength of his own case and not on the weakness of the defence. In the instant appeal there is no indemnity sought by the [Appellants] in the 3rd Party proceedings.
(k) In a declaratory relief the question of weight of evidence does not arise.
?(l) Indemnity is a duty to make good any loss, damage or liability incurred by another. The right may be express-contractual or implied contractual/equitable

27
indemnity.
(m) A right to contribution is one tortfeasor?s right to collect from joint tortfeasors when and to what extent that the tortfeasor has paid more than his proportionate share to an injured party the shares being determined as percentages of causal fault.
(n) Under Order 26 Rules 6(1) of the Rules, where a Plaintiff claims under an express contract he would state clearly whether the claim arises under the contract and if so, he should set out the terms relied and state how the claim arises thereunder.
(o) If, however, any of the terms are alleged to be implied particulars should be given in the Statement of Claim of the facts and matters relied on as giving rise to the alleged implied terms. The “officious bystander” test is applied in determining whether a term should be implied in a contract or not.
(p) It is trite that the main object of 3rd Party proceedings is to prevent multiplicity of actions and prevent the same issues being decided upon two different proceedings. Obligations in law or in equity to indemnify the defendant must be established. Sufficient materials must be pleaded to justify the reliefs sought.
?(q) It is not just good enough

28
for a Defendant in a third party proceedings to simply assert that if he is liable to the Plaintiff then the 3rd Party is liable to him. 3rd Party’s liability is not automatic where such liability is disputed.
(r) Paragraphs 3.02 at pages 2, 3, 4 of the Appellants’ Brief copiously recapitulate the learned trial Judge’s findings of fact and law. An omnibus ground of appeal cannot be used to raise any issue of law or error of law. The submissions of law by the Appellants herein show that the Appellants under the guise of an omnibus ground of appeal are highlighting/arising an issue of error of law, which should have been done by raising a substantive ground of appeal, challenging each specific of fact or law.
(s) The Appellants’ omnibus ground of appeal is coupled with a relief for an Order directing the Respondent to indemnify the Appellants, whereas there is no substantive ground of appeal against the specific finding of law – “I hold that the Plaintiffs are not entitled to be indemnified by the 3rd Parties.”
?Obviously, the Respondent has a serious problem with these lines of argument. A Respondent has every right to look at the complaints in ground(s) of appeal

29
from his own perspective of what the issues for determination are, however, the proper way for a Respondent to question any aspect of the decision that is substantially in his favour is to file a Cross-Appeal or Respondent’s Notice ? see Galadima v. Tambai (2000) 11 NWLR (pt. 677) 1, Baker Marina (Nig.) Ltd. v. Danos Curole Marina Contractors Inc. (2001)7 NWLR (Pt.712) 337, Delta State Govt. v. Okon (2002) 2 NWLR (pt. 752) 665. See also Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517, wherein the Supreme Court enumerated some situations when a Respondent needs to file a Cross Appeal in an appeal i.e.-
– Where there are separate and distinct causes of action and one party seeks to contest the decision upon one cause of action and another party upon another cause of action;
– Where there several parties and the Respondent seeks to vary the decision of the Court on a point in which the Appellant has no interest;
– Where the Respondent wishes to contest the jurisdiction of the Court;
– Where the Respondent wishes to reverse any findings the Court made;
– Where the Respondent wants a complete reversal of the said decision.
?In these cases, a Respondent ought to

30
file a Cross Appeal. But in other cases, he may file a Respondent’s Notice, which applies only where the Respondent intends to retain the Judgment itself but at the same time wants it varied? see Ogunbadejo v. Owoyemi (supra), Delta State Government v. Okon (supra) and Baker Marina (Nig.) Ltd. v. Danos Curole Marina Contractors Inc. (supra).

In effect, a Respondent’s Notice applies where a particular point is being stretched by a Respondent who contends for its maintenance but proposes for a variation of it, if it is the only way by which he could be enabled to retain it. He may also come by way of Respondent’s Notice if on the fact and on the law, the decision of the Court being appealed against will in any event be affirmed. Clearly, none of the above enumerated situations are applicable in this appeal. The Respondent is not questioning any aspect of the lower Court’s Judgment, and it is not asking this Court to reverse any findings made by the lower Court; the said decision of the lower Court was in its favour, through and through.

?I read the Record carefully, and I can see that the Respondent raised the issue of indemnity, and there being no evidence

31 of any trade usage or custom, however, the lower Court set out their arguments, and proceeded to evaluate the evidence presented at the trial before concluding as follows at page 186-

“I hold that the Plaintiffs (Appellants herein) are not entitled to be indemnified by the Third Parties. This Suit is hereby dismissed.”

The Judgment is in its favour, and yet, it is casting blame on the Appellants for not raising a ground of appeal against the above conclusion, which is absurd.

?Surely, it is not the place of the Respondent to tell the Appellants what to complain or not complain to this Court about the decision appealed against. Besides, the lower Court did not make a distinct pronouncement on the issue or look into the arguments proffered thereon by the Respondent; it merely set out the arguments canvassed by the Counsel in their respective Addresses, and went on to evaluate the evidence presented at the trial before concluding as it did. The Appellants are dissatisfied with the way and manner the Court evaluated the evidence before it and their complaint in this Appeal is solely on that ground; if the Respondent had any grouse with the decision, it ought to have

32
filed a Cross-Appeal or a Respondent’s Notice, but it did not do so, and the law does not allow it to raise the issue or canvass any arguments thereon in this Appeal.

In addition, the Respondent also stated that the Appellants are equating the evidence of DW1 and DW2 as its evidence even though the 2nd Third Party was struck out as the 2nd Respondent in this Appeal, upon their own Application. The Appellants countered in their Reply Brief that the striking out of the name of the 2nd Respondent is not tantamount to expunging any part of the evidence of DW1 and DW2; and that the endorsement in their Statement of Claim was joint and several, so it can prosecute the Appeal against the Respondent alone.

?This is, obviously, a non-issue. DW1 and DW2 may have testified on behalf of the 2nd Third Party at the trial, but the Appellants “jointly and severally” filed their action at the lower Court against “the Third Parties jointly and severally”, and since an appeal is not the inception of a new case, the fact that one of the Third Parties has been struck out as a Party to the Appeal is totally immaterial. Moreover, the Appellants are challenging the evaluation of the

33
totality of the evidence by the lower Court; it will be absurd to divide the evidence on appeal merely because one of the Third Parties has been struck out as a Respondent, and in an appeal, where Appellants are questioning the evaluation that it did.

As regards the question of whether the lower Court properly evaluated the evidence, the Respondent also summarized its arguments, as follows-
?
(t) As regards the Appellant’s paragraph 5.20.9, 5.20.14, 5.2015, 5.20.17, we contend-
(i) That the Surveyors’ Report Exhibit B & B1 are “hearsay” evidence in as much as the Surveyors did not testify that they saw PW1 ashore monitoring the discharge of the subject consignment.
(ii) That the purported letter of protest attached to Exhibit B1 as Annex 03 – – was indeed a damage report on Stevedore Damage to Vessel Cargo etc. Addressed to SDV represented by PW1- its Operations Manager. PW1 signed the said damage report as Chief Stevedore Foreman. Not addressed to or signed by M/S Supreme Stevedoring and Shorehandling Co. (Nig.) Ltd.
?(u) As regards paragraphs 5.20.3, 5.20.4 at page 8 of the Appellants Brief we respectfully contend that what was described there were

34
“discrepancies” not “contradictions”. What was in issue was who drove the Crane? Not who was the owner of the Crane? The Appellants, however, countered that the point sought to be canvassed by the Respondent to the effect that the Surveyor’s Report was hearsay evidence, is a point that ought to have been taken at the lower Court, and does not arise from the issue for determination in this Appeal. I do not accept that argument; if the lower Court relied on hearsay evidence as contended by the Respondent, that is enough to question its decision as hearsay evidence is inadmissible and cannot be the basis for a decision – see Ogwuma v. IBWA (1988) 2 NWLR (pt. 73) 658, wherein the Supreme Court added that an objection to hearsay can be taken at any stage of a trial or on appeal or even at the instance of the Court. Did the lower Court herein rely on hearsay evidence in arriving at its decision?

In Exhibit B, “F. O. Fagboun, for Union Inspection and Superintendence”, reported its findings to “Messrs. Cross Marine Services Ltd.?, part of it reads-
?
“We enquired from Mr. Mike the cause of the damage to the cases during the attempted discharge. He told us that the

35
method of discharge employed was customary and adequate and wire sling was used. Further, he was ashore monitoring the discharge of the subject consignment when he noted that the cases had shifted to one side of the flatrack, when it was lifted about 1 meter above the vessel’s deck. According to him, he immediately shouted to the winch-man to stop lifting the flatrack and wait for further instruction from him so as to reassess the position of the cases on the flatrack. Mr. Mike told us that he was still on the gangway up the vessel when he heard the sound of the falling flatrack on the deck. He said he was surprised that the winch-man had lifted the cargo against his advice resulting to this damage.”
?
“Mr. Mike” mentioned in Exhibit B is, obviously, PW1, Michael Love II smith, and there is nothing he “told” the surveyor, who prepared the said Exhibit B that he did not say in Court himself which means that the lower Court did not have to rely on what the Surveyor reported in Exhibit B to arrive at its decision when he had the opportunity to and did in fact hear the same thing from PW1. There is also a Letter of Protest attached to Exhibit B1 as Annex 03; it reads

36
as follows-

“We wish to bring to your attention the undernoted damage, which occurred during the course of loading/discharging the above vessel. The damage is in no way caused by any fault in Ship’s management; it being our opinion that these damages resulted through your negligence, we must hold you responsible for all losses as a result thereof. We invite you to have these damages repaired – -”
?
The Appellants argued that if the said damage was caused by a crew member, the Master of the vessel would not have issued the Letter of Protest, and that the Respondent did not write any letter of protest when they alleged that the damage was caused by a crew member, who was instructed to drive the Crane.

The Respondent agreed that the Letter was a damage report addressed to SDV, represented by PW1, who signed it as the Chief Stevedore Foreman, but argued that the letter was not addressed to or signed by the 2nd Third party. Once again, this Exhibit is neither here nor there, and is of no effect whatsoever; it was addressed to “Stevedores – SDV” and copied to “Agent – Cross Marine”, and what was stated therein is only an opinion of the 1st Appellant not evidence.

?The

37
lower Court was asked to resolve the dispute between the Parties as to who was to blame for the damage caused to the said Container, and to do so, it must rely on evidence, and nothing but evidence in arriving at its decision. There is nowhere in its evaluation of the evidence before it that the lower Court ever mentioned Exhibit B or Exhibit B1 or alluded to their playing any part in its choice to believe one witness and not believe the other, which is its prerogative, as a trial Court that sees the witnesses first-hand, and hears from them directly; we cannot transpose our eyes and ears on the Record, and decide differently.

The Appellant also submitted that the Respondent’s witnesses had given contradictory evidence regarding the crane that was used on the said day, and they contend that if they could give conflicting testimonies on a simple issue, then their evidence as to who drove the Crane that day should not be believed. The Respondent, however, countered that what the Appellants had described as “contradictions” were merely “discrepancies”, and that what was in issue at the lower Court was who drove the Crane and not who owned the said Crane.

?Evidence

38
contradicts another when it affirms the opposite of what that other evidence stated and not when there is a minor discrepancy between them. In other words, two pieces of evidence contradict each other when they are by themselves inconsistent, however, a discrepancy may occur when a piece of evidence stops short of or contains a little more than what another contains – some minor difference in the details – see Owena Bank Plc v. Olatunji (2002) NWLR (Pt.781) 259. In this case, the lower Court clearly stated as follows-
?
“The issue that calls for determination is who drove the Crane at the time the said Container fell on the deck of the vessel.”

DW1 and DW2 worked with the 2nd Third Party, and the alleged contradiction relates to DW1′ statement that “our crane discharged it” and that of DW2 that-

“The crane used on that day is inbuilt crane on board the ship, it is owned by MV NORDICA.”
?
The Parties are not disputing the fact that the Container fell while being lifted by a Crane on the deck of the vessel, and whether the said Crane belonged to MV NORDICA or to the 2nd Third Party, is of no relevance to us in this Appeal.

?The Appellants challenged the evaluation of

39
evidence by the trial Court, and the bone of contention at the lower Court was – who drove the said Crane. The lower Court believed and accepted the evidence of DW1 and DW2 that it was a crew member of MV NORDICA that was driving the Crane, and this Court cannot go fishing into what had been said or not said about anything else.

40
unwarranted. The need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal Courts when dealing with appeals raising questions of fact.”
See also Roda v. FRN (2015) 10 NWLR (Pt. 1458) 427 SC, wherein it was held-
“…The trial Court accepted the evidence as true. This makes it difficult to accept on what foundation the Court below set out on its review as doing so could be entering into on arena within the exclusive domain of the trial Court especially since the appellate Court has no opportunity of hearing and watching the demeanor of the witnesses… For a fact, the re-evaluation of the oral evidence by the Court below was improper and the issue is resolved in favour of Appellant.”
?
A word is enough for the wise, and I am not about to defy the well-known law that prohibits this Court from interfering with findings of a trial Court that are based on oral testimony. The fact is that the Appellants failed to show that the trial Court wrongly accepted evidence that it should not legally have accepted or that its decision that is drawn from the evidence so accepted are unjustified.

?The end result is that this Appeal

41
lacks merit; it fails, and is dismissed.There will be no order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of a prior perusal of the judgment just delivered by my learned brother AMINA A. AUGIE JCA.

The issues in contention have been carefully and exhaustively addressed and I agree with the reasoning and conclusion reached therein.

It is a basic principle of law that the function of the evaluation of evidence is essentially that of the Trial Judge. Therefore, where the Trial Judge has unquestionably evaluated and justifiably appraises the facts of the case as presented by the parties, it is not the business of the Appellate Court to interfere or embark on a process of substituting its own view with that of the Trial Court. It is perhaps only where the question does not affect the issue of credibility of witnesses that an Appellate Court is in a vantage position as the Trial Court to evaluate the evidence given and come to a proper decision which may or may not be in tandem with that of the Trial Court. See IGAGO v. THE STATE (1999) 14 NWLR (PT 637); WOLUCHEM v. GUDI (1981) 5 SC 291 ONUOHA v. THE STATE (1998) 5 NWLR (pt. 548)

42
118.

It follows therefore that the findings of primary facts (as done by the lower court in the instant case) are matters peculiarly within the competence of the Trial Court, thus the assessment, evaluation, appraisal of evidence emanating there from and ascription of probative values are primarily that of the trial court in which case any interference of the Appellate Court is confined to a narrow and limited dimensions such as were it is done perversely or devoid of any rational justification or misapprehension of the facts. See EBBA v. OGODO (1984) 1 SCNLR 372; BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 622) 290; ARE v. IPAYE (1990) 3 SC (PT 11) 109; FOLORUNSHO v. ADEYEMI (1975) NMLR 128; CPC v. INEC (2011) 18 NWLR (PT 1279) 493; WACHUKWU v. OWUNWANNE (2011) 14 NWLR PT (1256) 1.

In the instant case there is little or nothing to show that the lower court wrongly evaluated the evidence before it or that there was misapprehension of fact which has led to a perverse decision.

For this and the more elaborate reason embedded in the lead judgment, I also hold that this appeal lacks merit and it is hereby dismissed.

?I abide by the consequential orders in the

43
lead judgment including order as to cost.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, AMINA ADAMU AUGIE, JCA and I agree with the reasoning and conclusion arrived in the judgment.

There is no point belabouring the fact that evaluation of evidence is the primary responsibility of the trial court and an appeal court is not entitled to make contrary findings particularly when such findings depend largely on the credibility accorded to the witnesses by the trial court, see ISIBOR v. STATE (2002) 4 NWLR (PT 758) 741.

Furthermore, the contradictions alleged in the testimony of the Respondent witnesses do not affect the substance of the issue to be decided. The contradictions must be shown to amount to a substantial disparagement of the witness or witnesses concerned, making it unsafe to rely on such witness or witnesses before it can be relevant in an appeal, ISIBOR v. STATE (supra) per S. O. UWAIFO, JSC.

?For these and other fuller reasons in the lead judgment, I also dismiss this Appeal and abide by the consequential orders made therein.

Appearances
?
Emmanuel Achukwu, ESq., with Uche Obi, Esq.
For Appellants

A. Okupe, Esq., with Adebayo Abdulazeez, Esq.
For Respondent

Appearances

Emmanuel Achukwu, Esq., with Uche Obi, Esq.For Appellant

AND

A. Okupe, Esq., with Adebayo Abdulazeez, Esq.For Respondent