NIGERIA BOTTLING COMPANY LIMITED v. PAULLY JOE & CO. (NIGERIA) LIMITED
(2018)LCN/12220(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/K/16/2018
RATIO
DAMAGES: CLAIM OF SPECIAL DAMAGES
“…Was the claim of special damages pleaded and claimed in the Amended Statement of claim? What is meant by “special damages”, in legal parlance? In OCFS Ltd v. Ogunleye (2008) All FWLR (Pt. 437) P. 48 @ 64, this Court, had this to say on what special damages entail in law. “Special damages has been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore, they must be claimed specifically and proved strictly all the loses claimed on every item must have crystallized in terms and value before trial.” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: ADMISSION OF DOCUMENTARY EVIDENCE
“…The guiding principle to the admission of documentary evidence has been enumerated by the Apex Court and this Court in a litany of judicial decisions. For instance, inOkoye v. Obiaso (2010) 3 SCNJ (Pt.1) P. 220 @ 236, the Apex Court, per ONNOGHEN J.S.C (as he then was), held that: “It is settled law that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the part(ies) to the proceedings, whether it is relevant to the subject matter of inquiry by the Court or Tribunal and whether it is admissible in law.” ACHIKE, J.S.C (of blessed memory) in the case ofOkonji v. Njokanma (1999) 12 SCNJ P. 259 @ 273, restated the law pertaining to the admissibility of a document in evidence thus: “Generally, three main criteria that governs the admissibility of a document in evidence, namely: (i) Is the document pleaded? (ii) Is it relevant to the inquiry being tried by the Court? And (iii) Is it admissible in law?.'” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
NIGERIA BOTTLING COMPANY LIMITED Appellant(s)
AND
PAULLY JOE & CO. (NIG) LTD Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Kano State High Court of Justice (the lower Court) in suit No. K/558/2014 delivered on the 15th day of May, 2017, by R. A. SADIK, J. The appellant’s brief of argument was filed on the 27th day of April, 2018; with 4 issues for determination culled out of the three (3) grounds of appeal contained in the Notice and grounds of appeal filed on the 22nd of May, 2017. The respondent’s brief of argument was filed on the 11th of May, 2018, wherein the issues for determination on page 6 of the appellant’s brief of argument were adopted with modification; on page 7, thereof. The issues for determination in the appeal are, therefore, as follows:
1. Whether on the pleadings and evidence, there is any legal basis for the lower Court to award the sum of N10,000,000.00 (Ten Million Naira) in place of the sum of N25,000,000.00 (Twenty Five Million Naira) claimed by the respondent against the appellant as special damages (Ground 2).
2. Whether the learned Judge of the lower Court was right to expunge – Exhibit NBC when there was no objection to its admissibility during trial? (Ground 1).
3. Whether the learned Judge of the lower Court was right in awarding the sums of N820,840.00 and N144,400 as transportation and hotel bills respectively to the respondent whereas such reliefs were not claimed by the respondent? (Ground 3).”
RESOLUTION OF ISSUES
The 3 issues are resolved in the following orders 2, 3 and 1.
ISSUE TWO (2)
On this issue, F. F. Osimerha Esq., of learned counsel to the appellant, submitted that the learned Judge of the lower Court was in error when he held that Exhibit NBCI, the (Settlement Agreement between the parties) was wrongly admitted in evidence, though there was no objection to its admissibility by the respondent. That there is a distinction between an inadmissible document, ab-initio, and a document that can be admitted in evidence, subject to the fulfillment of certain conditions. Learned counsel pointed out that the lower Court expunged the document, Exhibit NBCI, after it was admitted in evidence, because it is a photo copy, which can only be admitted, if proper conditions are satisfied as to the non-availability of the original copy.
It is counsel’s further contention that since there was no objection to the admissibility of the document at the material time, having been admitted by the Court, same ought not to have been expunged from the record of the Court, on the simple reason that, no proper foundation was laid when same was admitted in evidence. Learned counsel cited and relied on the principle of law espoused in the case ofAnyaebosi v. R. T. Briscoe (Nig.) Ltd (1987) NWLR (Pt. 59) P. 84, wherein, the distinction between a document that is legally inadmissible, and that which is admissible subject to the fulfillment as certain conditions, to buttress the submissions supra.
What is more, counsel argued, the non-objection to the admission of the document by the appellant at the trial, was tantamount to a waiver of the satisfaction of the conditions for its admission, and the appellant cannot, at this juncture, complain that it was wrongly admitted. The case of Arinze v. First Bank (Nig.) Ltd (2000) 1 NWLR (Pt. 639) P. 78, was cited and relied on, to reinforce the submissions supra.
Learned counsel also contended that the lower Court erred in law when it held that Exhibit NBCI, is a document made by the appellant when proceedings were in existence before the lower Court by the parties. That being a document made by an interested party, when proceedings had commenced, the document ought not to have been admitted in evidence in view of the provisions of Section 83 of the Evidence Act, 2011. Counsel did submit that Exhibit NBCI was not a document made by an interested party, rather, same was made for the benefit of both parties to the dispute; therefore, the provisions of Section 83 of Evidence Act, cannot apply.
It is learned counsel’s contention that, in view of the foregoing adumbration, the lower Court was wrong in law when it expunged Exhibit NBCI in the course of writing the judgment of the Court. This Court has been urged to hold that Exhibit NBCI can be relied on to hold that same had settled the dispute between the parties.
J. U. Barrah Esq., of learned counsel to the respondent, did refer to Exhibit NBCI, the Settlement Agreement, and submitted that by the provisions of Section 89(b) (i) (ii) and (c) of the Evidence Act, 2011, a photo copy of a document, can only be admissible in evidence if a proper foundation as to non-availability of the Original copy had been explained, and that the photocopy had also been certified in accordance with the law. The case Spring Capital Market v. Ikara (2016) 9 NWLR (Pt. 1516) P. 173 was cited and relied on to buttress the submissions supra.
Learned counsel pointed out that, notwithstanding the non-objection to the admissibility of Exhibit NBCI by the appellant, same was not admissible in evidence being a photo copy, requiring certification and proper foundation laid for its admissibility in evidence. The cases of Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) P. 345; UBA Plc v. G.S. Industry Ltd (2011)8 NWLR (Pt. 1250) P. 590, amongst others, were cited in reinforcement of the submissions supra. On the reason why the lower Court expunged Exhibit NBCI, when writing the judgment, learned counsel did contend that, it was proper in view of the principle of law enunciated in the cases of Shanu v. Afri-Bank (2002) 6 SCNJ P. 454, Ajayi v. Fisher (1986) SCNLR P. 279; Owonyin v. Omotosho (1961) 2 SCNLR P. 57 and Adeyemi v. The State (2014) 6 SCNLR P. 313 @ 344. In conclusion, learned counsel did contend that the lower Court was right in expunging Exhibit NBCI, though admitted in evidence, without proper foundation laid as provided by Section 89 of the Evidence Act. This Court has been urged to resolve issue 2 against the appellant.
Exhibit NBCI which was admitted in evidence without any objection from the appellant is the Settlement Agreement by the parties at the lower Court. The said Exhibit was expunged from the record of proceedings of the lower Court on the ground that same ought not to have been admitted because certain conditions for its admissibility were not fulfilled or satisfied as required by the provisions of Sections 89 and 104 of the Evidence Act, 2011. The guiding principle to the admission of documentary evidence has been enumerated by the Apex Court and this Court in a litany of judicial decisions. For instance, inOkoye v. Obiaso (2010) 3 SCNJ (Pt.1) P. 220 @ 236, the Apex Court, per ONNOGHEN J.S.C (as he then was), held that:
“It is settled law that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the part(ies) to the proceedings, whether it is relevant to the subject matter of inquiry by the Court or Tribunal and whether it is admissible in law.”
ACHIKE, J.S.C (of blessed memory) in the case ofOkonji v. Njokanma (1999) 12 SCNJ P. 259 @ 273, restated the law pertaining to the admissibility of a document in evidence thus:
“Generally, three main criteria that governs the admissibility of a document in evidence, namely:
(i) Is the document pleaded?
(ii) Is it relevant to the inquiry being tried by the Court? And
(iii) Is it admissible in law
On page 372 of the printed record of appeal, the learned Judge of the lower Court, when considering Exhibit NBCI, in the judgment, observed as follows:
“This Exhibit, from its face, is a photocopy. Throughout, the proceedings, there was nowhere the whereabout of the original was stated or sought to be explained. Even though, it is a public document, it is only admissible upon fulfillment of the conditions stated and or enumerated under Section 89(a), (b) (i) & (ii) and or (c). What I mean, the document is secondary evidence.”
From the findings and decision of the lower Court reproduced supra, Exhibit NBCI, the Settlement Agreement, ought not to have been admitted in evidence, because same was a photocopy of an original, and secondly, same being a photocopy, it was not certified. The provisions of Section 89 and 104 of the Evidence Act, 2011, are relied on. There is no appeal against the finding and decision arrived at by the lower Court as indicated supra. The appellant must be taken to have conceded to the finding and decision supra, having not appealed against it. See Atanda v. Iliasu (2012) 12 SCNJ P. 173 and Alhaji S.D Akere v. Gov. Oyo State (2012) 5 SCNJ P. 166.
The appellant’s main grouse or complaint against Exhibit NBCI, is that it was admitted without objection from the respondent at the lower Court which was expunged from the record when considering the judgment. Was the learned Judge of the lower Court justified in expunging Exhibit NBCI from the record of appeal at the time he did? The answer can be found in the decision of the Apex Court in the case of Shanu v. Afri-Bank (2002) 6 SCNJ P. 454 @ 475-477 wherein it was espoused that:
“Issue estoppels, however, does not apply against a Court which rules that a piece of oral evidence or a document is admissible but later finds that, in law or procedure, it is not. The duty of the Court to decide on legally admissible evidence is an exception to the rule that a Court is functus, on taking a decision on a matter and cannot reverse itself on it.
The admissibility of a document or a piece of oral evidence may be contested by the parties and the trial Judge will normally rule on it. If in his ruling, he admits the oral evidence or documentary evidence, he may at the stage of writing his final judgment discover that it is not legal evidence at all.
It cannot be considered a valid argument that because he gave a Ruling to admit the evidence, he is bound to stick with the error. He has a duty to expunge the evidence and decided on legally admissible evidence. This can be done even at the stage of judgment and this extends to the matter at the appeal stage.”
In Ajayi v. Fisher (1956) SCNLR 279, the Supreme Court held that in a trial by a Judge sitting alone, if inadmissible evidence has been received whether with or without objection, it is the duty of the Judge to reject it when giving Judgment and if he has not done so, it will be rejected on appeal.
In Owonyin v. Omotosho (1961) 2 SCNLR 57, at page 61, Bairamian, F. J observed inter alia as follows:
where a matter has been improperly received in evidence in the Court below; even when no objection has been raised, it is the duty of the Court of appeal to reject it and to decide the case on legal evidence.? (underlining for emphasis)
In the recent decision of the Apex Court in the case of Adeyemi v. The State (2014) 6 SCNJ P. 313 @ 344, the Apex Court restated the law as follows:
“Where inadmissible evidence is admitted, it is the duty of the Court not to act upon it? furthermore an appellate Court has the power to reject the evidence and decide the case on legal evidence.” (Underlining for emphasis)
In view of the foregoing exposition of the principle of law on inadmissible evidence, the duty of the trial or appellate Court to expunge same, even at the stage of writing judgments, cannot be in dispute any longer. The position of the law has been settled by the decisions in the cases of Shanu v. Afri-Bank (2002) 6 SCNJ P. 454; Emeka v. Chuba-Ikpeazu(2017) 15 NWLR (Pt. 1589) P. 345 @ 394. The learned Judge of the lower Court was right when he expunged Exhibit NBCI at the time of writing the judgment, notwithstanding its earlier admission in evidence without any objection to it by the respondent. I resolve Issue 2 against the appellant.
ISSUE THREE (3)
Learned counsel to the appellant, Osimerha Esq., did submit that the award of N820,000.00 and N144,400.00 as special damages to the respondent was wrong in law, same having not been specifically claimed or sought by him.
Learned counsel referred to the Amended Statement of claim and contended that no claim of special damages was made by the respondent for the sums of N820,000.00 and N144,400.00. It is learned counsel’s further submission that, the law is settled, a Court of law has no jurisdiction and or power to grant or award any relief that has not been sought by the plaintiff. The case of Agbi v. Ogbeh (2006) LPELR-2010, (CA), wherein the Apex Court enunciated that a Court of law cannot grant what was not claimed or sought, to buttress the submission supra. Counsel concluded by urging the Court to resolve Issue 3 in favour of the appellant; and set aside the award of N820,000.00 and N144,400,000 which was awarded to the respondent.
J. U. Barrah Esq., of learned counsel to the respondent, referred to pages 33-47 and 133 of the printed record of appeal, as well as the evidence of PW2, and submitted that the lower Court relied on same when it granted or awarded the sums of N820,000.00 and N144,400.00 to the respondent as special damages. As to what constituted the claim of special damages, learned counsel referred to paragraph 93 of the Amended statement of claim wherein the particulars of the claim were itemized, which were supported by the evidence of PW1 as recorded on pages 33-37 of the record of appellant, as well as paragraphs 92 and 93 of the statement on oath of PW2, on pages 131-133 of the record of appeal.
Was the claim of special damages pleaded and claimed in the Amended Statement of claim? What is meant by ‘special damages’, in legal parlance? In OCFS Ltd v. Ogunleye (2008) All FWLR (Pt. 437) P. 48 @ 64, this Court, had this to say on what special damages entail in law.
“Special damages has been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore, they must be claimed specifically and proved strictly all the loses claimed on every item must have crystallized in terms and value before trial.”
In paragraphs 92 and 93 of the Amended statement of claim, the respondent averred as follows, which are found on pages 127-128 of the printed record of appeal:
92 The plaintiffs had suffered so much damages since October 2013 over the non-Release of the Scraps for which they paid N3,500,000.00.
93. The particulars of special damages.
i. Bulk receipts of lodgings in Hotels in Delta, Benin, Lagos and Kano where the plaintiffs had lodged.
ii. Some receipts of transport paid in course of so many trips to Delta, Benin, Lagos and Kano in respect of this matter.
iii. The sum of N950,000.00 paid for the loading and lifting of the items out of Challawa plant to Delta covered by Receipt but which payments failed as 2nd defendant cancelled the plan.
The evidence of PW2, Paul Nwokolo, per his further depositions in the statement on oath in respect of the claim of special damages are also relevant in supporting that same have been pleaded and claimed by the respondent. In paragraph 94(4) of the statement on oath of PW2, he deposed as follows:
94, whereof, the plaintiff’s claim against the defendants
(1) ——–
(2) ———–
(3) ———
(4) Special and general damages of the sum of N20,000,000.00.”
In view of the foregoing, the principle of law espoused in the case of Agbi v. Ogbeh (2006) LPELR 290 (CA), which was cited and relied on by learned counsel to the appellant in support of his submissions that, a Court of law cannot award or grant any relief or claim not sought, cannot be applicable to this extant case on appeal.
I resolve Issue 3 in favour of the appellant, that is, the lower Court was right in granting or awarding the sums of N820,000.00 and N144,400.00 as special damages to the respondent having pleaded, and adduced evidence to prove same.
ISSUE ONE (1)
On this issue, F.J. Osimerha Esq., who settled the appellant’s brief of argument, did submit that the claim of Twenty Five Million Naira (N25,000,000.00) by the respondent is of special damages in nature, which must be specifically pleaded and strictly proved by cogent or credible evidence before same could be granted or awarded. It is learned counsel’s further submission that special damages are not to be inferred nor does it flow in the ordinary course of events or acts of the parties.
The principle of law propounded in the cases of ISC Services Ltd v. Genak Continental Ltd & Anor (2006) 6 NWLR (Pt. 977) P. 481 @ 518 and B. J. Ngilari v. Mothercat Ltd (1999) 13 NWLR (Pt. 639) P. 626 @ 647 were cited and relied on to buttress the submissions supra. It has also been submitted that, having regard to the pleadings and the evidence adduced by the respondent, the claim of special damages was not proved, therefore, the lower Court was in error in awarding same to the respondent. That the evidence of PW2, Chief Paul Nwokolo, have not proved the claim of special damages, being a mere speculation or opinion of the witness.
Learned counsel also contended that PW2, is an interested person in the matter before the lower Court. That, where a witness has an interest in the matter in dispute, his evidence cannot be relied on by the Court in arriving at a decision in view of the provisions of Section 83(3) of the Evidence Act, 2011. On the assertion that the witness (PW2) is an expert, learned counsel submitted that, there is nothing on record to establish that PW2 is an expert, as provided for by Sections 67, 68 and 76 of the Evidence Act, 2011.
Concluding, Learned counsel did urge that Issue 1 be resolved in favour of the appellant, for the respondent failed to adduce credible evidence to support or prove the claims of special damages on the totality of the evidence before the Court.
I. U. Barrah Esq., of learned counsel to the respondent, did contend that the claim of N25,000,000.00 was not for special damages as erroneously submitted by learned counsel to the appellant. It is learned counsel’s submission that the claim is for the value of heaps of scraps assembled by the appellant. Learned counsel referred to paragraphs 94 to 104 (4) of the Amended statement of claim, and submitted that the averments contained therein justified the award of damages by the lower Court in respect of the scraps, the subject-matter of the dispute. That the award of N10,000,000.00 being the estimated value of the heap of scraps warranted the award of the sum of N10,000,000.00 by the lower Court.
Counsel further pointed out that the evidence of PW2, on the sale of various heaps of scraps for N3,000,000.00; N30,100,000.00 and N1,500,000.00 on various occasions prior to the transaction with the appellant, which were not contradicted, was the basis of the lower Court’s decision in awarding the sum of N10,000,000.00, to the respondent.
As to whether there was credible evidence in support of the claim of special damages, learned counsel referred to the findings of the lower Court on page 378 of the printed record of appeal, whereby the Court found and held that the evidence adduced by the respondent was credible which proved the claim of special damages. The principle of law enunciated in the cases of UAC (Nig.) Ltd v. Ekunwe (1986) 4 SC P. 36 @ 38; Elf v. Sillo (1994) 19 LRCN P. 153, and Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) P. 1 @ 19 were cited and relied on to reinforce the submissions supra. On the whole, learned counsel did urge that Issue 1 be resolved against the appellant in view of the cogent and credible evidence adduced by the respondent through PW2.
The claim of the respondent for the sum of N25,000,000.00 but only N10,000,000.00 was granted or awarded by the lower Court, is not a claim of special damages. Rather it was a claim for the value of heaps of scraps assembled by the appellant but sold to the respondent, which were not delivered.
The pleadings in paragraphs 94-104 (4) of the Amended statement of claim clearly showed that the award was in respect of the heaps of scraps which were not delivered to the respondent, having been sold to him and paid for, as evidenced by receipts tendered before the lower Court. The averments contained in paragraphs 94 to 102 of the Amended statement of claim, the basis of the award of N10,000,000.00 to the respondent are reproduced hereunder:
94. That the value of the scrap which the plaintiffs paid the sum of N3,500,000.00 was worth over N100,000,000.00 at retail value outside the factory/company premises as plaintiffs do supply such items to some companies who needed serviceable and completely broken-down parts of such scraps.
95. That Chief Paul Nwaokolo, the Managing Director of Paully-Joe and Company Nigeria Limited (1st Plaintiff) as a person has been in scrap business for over 20 years.
96. That Chief Paul Nwaokolo, as an expert and a professional in scrap business buys scraps in heaps from companies folding up and functioning after scraping their properties or as boarded items.
97. That some of the companies where Chief Paul Nwaokolo had bought scraps in the past include-the Federal Government owned Ajaokuta Steel Company Ltd in Kogi State, Clemessy (Nig.) in Kogi State, Edo State Cement Factory Ltd in Edo State, Globacon (Nig.) Ltd Asaba, Delta State, from Federal Capital Territory Judiciary, Abuja, from Daramola Investment Nig. Ltd, Akure, Ondo State, FROM KWANCHE KURA NIG. LTD Bauchi State and even recently from Consolidated Tin Mines Limited Jos, Plateau State.
98. That documents of purchase of scrap items are usually released and or handed over to the new buyers, unless buyers don’t demand for them.
99. That the plaintiffs shall rely and found on sample receipt of such documents.
100. That some scraps collectively bought for about N3,000,000.00 have been sold for about N30,000,000.00 as in Consolidated Tin Mines Limited where items bought for N1,500,000.00 was eventually sold to the Government of Plateau State for N30,000,000.00. The plaintiff shall rely on documents of the transaction.
101. That scrap items are usually bought and sold in dumps and or heaps wherein some scrap dumps may contain even useful vessels like Tanks, Stainless pipes, cables (whether in rolls or in lengths), galvanized irons, compressors etc.
102. That the heap of the bottle carriers bought from the 1st defendant at the Challawa Plant as part of the scraps in this case could be sold for as much as N20,000,000.00 to some breweries or companies in Lagos or Ibadan, though cost of transporting the items is also high depending on the distance.”
Based on the foregoing averments contained in paragraph 94-102 of the Amended statement of claim, the respondent claimed against the appellant in paragraph 104 of same thus:
“Wherefore, the plaintiffs’ claim against the defendants jointly and severally is as follows:
1. A declaration by the Court that the plaintiffs’ made separate payments into the Account of Nigerian Bottling Co.Ltd (NBC) of N3.5 Million for the scraps in the scrap yard at Challawa Plant Kano and another N4.5 Million specifically for 2 scrap (CAT) Generators at Challawa Plant, making a total of N8 Million.
2. A declaration by the Court that the sums of N2.5 Million made by PAULLY-JOE & CO. LTD and N1 Million made by EBERE GERAD in the name of SARDO SABA into NBC’s Account as acknowledged by the 2nd defendant on 4/11/2013 and 7/11/2013 were payments in respect of scraps, other than the 2 Scrap Generators that N4.5 Million was specifically paid for, at the Challawa Plant in Kano.”
In the alternative to the claims in paragraph 104, the respondent claimed in Sub-paragraph (4) thereof as follows:
“Alternatively, where an order for specific performance is not feasible or the Court cannot order the release of the items stated at relief three (3) above, for reason that the goods comprised in the scrap heap items or dump at the 1st defendant’s scraps yard have been tampered with by the 1st defendant Company either by removing or selling all or any part of the scraps, then an Order that the defendants be ordered to pay to the plaintiffs the sum of N25,000,000.00 as the estimated value of the heap of scraps assembled by the 1st defendant in its premises at Challawa plant in Kano comprised in the items mentioned in relief 3 (three) above which the plaintiffs paid the sum of N3,500,000.00 for, with the intendment to supply same outside the Company’s premises to some other companies in need of such scraps.”
It is because the claims in paragraph 104 (1) (2) and (3) could not be granted, that the lower Court granted the prayer or relief sought in paragraph 104 (4) of the Amended statement of claim by awarding the sum of N10,000,000.00 as the value of the heaps of scraps which were not released to the respondent. The award of the sum of N10,000,000.00 to the respondent was sequel to the findings and decision of the learned Judge, after considering and reviewing the evidence, when he held on page 378 of the record of appeal thus:
“As I have already held that the evidence held or adduced by the plaintiff in this case is credible, it applies to all the pleadings of the plaintiff including the aspect touching on the special damages, as to transport and hotel bill.” (Underlining for emphasis).
The learned Judge of the lower Court found that the evidence adduced by the respondent in respect of the claim for the value of the heaps of scraps which he paid for, but were not delivered to him, and the evidence of PW2, were uncontroverted, in other words, not challenged by the appellant. This is what the learned Judge held in respect of the evidence adduced by the respondent through PW2 as recorded on page 377 of the printed record of appeal.
“In other words, the Court should give such pieces of evidence a credibility.”
The findings and decision arrived at by the learned Judge of the lower Court was based on the evidence before him. Judicial authorities are always wary (loath) to interfere with findings of fact made by a trial Court unless it is shown to be unreasonable, perverse and where such is not the result of genuine exercise of judicial discretion, which has resulted in a miscarriage of justice. See Adegbite v. State (2018) 5 NWLR (Pt. 1612) P. 183 @ 206; Yesufu v. Adama (2010) 5 NWLR (Pt. 1188) P. 522; Military Governor, Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) P. 291. Where a Court evaluates the evidence and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for the views of the trial Court. A trial Court, which had the opportunity of watching the demeanour of the witnesses who testified before it, is entitled to believe or disbelieve such witness. See Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) P. 252 and Busari v. State (2015) 5 NWLR (Pt. 1452) P. 343.
The appellant did not adduce cogent evidence controverting, contradicting or discrediting the evidence adduced by the respondent as found and held by the learned Judge of the lower Court. I have no reason to disturb the finding and the decision of the lower Court in awarding to the respondent, the sum of N10,000,00.00 (Ten Million Naira Only) as the value of the heaps of scraps, that were paid for by him, but were not delivered to him. In the end result, I resolve Issue 1 against the appellant. On the whole, having resolved the three Issues against the appellant, the appeal fails, same is dismissed for being unmeritorious. The judgment of the lower Court delivered on the 15th day of May, 2017, in suit No. K/558/2014, is hereby affirmed. The respondent is entitled to costs, assessed at N50,000.00. Same is awarded to it.
UWANI MUSA ABBA AJI, J.C.A.: I read before now the lead judgment of my learned brother IBRAHIM SHATA BDLIYA, JCA, just delivered.
I agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and same is dismissed by me. Accordingly, the judgment of the lower Court delivered on the 15/5/2017 is hereby affirmed. I endorse the order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege and read in advance, the lead judgment of my learned brother Justice Ibrahim Shata Bdliya, JCA which has just been delivered and with which I agree. I also dismiss the appeal for lacking in merit. I abide by the consequential orders made in the said lead judgment of my learned brother, Bdliya, JCA, including the order made with regard to costs.
Appearances:
Felix Jones Osimerha Esq.For Appellant(s)
J. U Barrah Esq.For Respondent(s)
