NLC & ORS v. AJIYA INTERGRATED SERVICES LTD & ANOR (2020)

NLC & ORS v. AJIYA INTERGRATED SERVICES LTD & ANOR

(2020)LCN/14247(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/MK/104/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. NIGERIAN LABOUR CONGRESS 2. ABDULWAHEED OMAR (PRESIDENT, NLC) 3. CHRIS UYOT (ACTING GENERAL SECRETARY, NLC) APPELANT(S)

And

1. AJIYA INTERGRATED SERVICES LTD. 2. CHIEF DAVID AJIYA RESPONDENT(S)

RATIO

WHETHER OR NOT THE BURDEN OF PROOF OF EVIDENCE IS STATIC IN CRIMINAL MATTERS

I have no hesitation than to agree with them that the law is firmly settled that the burden of proof is not static as in criminal matters but shifts from one party to another as the party asserting the existence of a fact is required to discharge the burden placed on him/her which if successfully done; the burden then shifts to the other party to adduce evidence in rebuttal to the evidence of the asserting party as to the non existence of a fact asserted by the opponent. In fact, the Apex Court in NNAEMEKA OKOYE & Ors. v. OGUGUA NWANKWO (2014) LPELR-23172 (SC) re-echoed the position of the law as to how the burden of proof in Civil matter is discharge when it held thus:-
“The burden of Proof in civil cases has two distinct meanings, viz: (a) the first is the burden of proof as a matter of law and pleadings usually referred to as the legal burden or burden of establishing the case; (b) the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as the scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the Plaintiff to the Defendants and vice-versa as the case progresses…” Per Odili, JSC (pages 25-26, paragraphs F-E)
See also; FEDERAL MORTGAGE FINANCE LTD v. EKPO (2004) 2 NWLR (Pt. 856) 100 at 130 per OLAGUNJU, JCA; BALOGUN v. LABIRAN (supra); NWOSU v. UDEOJA (1990) 1 NWLR (Pt. 125) 188; ADEGOKE v. ADIBI (1992) 5 NWLR (Pt. 242) 410 to mention but a few.
The decisions in the above cited authorities are in line with the provisions of Sections 131-134 of the Evidence Act, 2011 and in particularly Section 133 provides that:
“133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.
(2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
Section 134 thereof on the other hand stipulates that:
“134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.”
See Pali vs. Abdu (2019) 5 NWLR (Pt.1665) 320 at 334 paragraphs A-E per Eko, JSC. PER AGUBE, J.C.A.

WHETHER OR NOT EVIDENCE ELICITED FROM A PARTY OR HIS WITNESS UNDER CROSS-EXAMINATION WHICH GOES TO SUPPORT THE CASE OF THE OTHER PARTY CROSS-EXAMINING, CONSTITUTES EVIDENCE IN SUPPORT OF THE CASE OR DEFENCE OF THAT PARTY

In support of the foregoing point, I find the decision of the Supreme Court in EVA ANIKE AKOMOLAFE & Anor v GUARDIAN PRESS LIMITED (PRINTERS) & Ors. (2010) LPELR-366 (SC) very apt and instructive wherein the erudite Law Lord, Onnoghen, JSC (as he then was), CJN emeritus, held thus:
“…It is settled law that evidence elicited from a party or his witness(es) under cross-examination which goes to support the case of the party cross-examining, constitutes evidence in support of the case or defence of that party, if at the end of the day, he relies on the evidence elicited from the cross-examination in establishing his case or defence. In such a case, you cannot say that the party called no witness in support of his case or defence, not evidence (sic), as the evidence elicited from his opponent under cross-examination which is in support of his case or defence constitutes his evidence in the case. The exception is that the evidence so elicited under cross-examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.” (Pp. 15 -16, Paras. C – A)
(underline mine for emphasis). PER AGUBE, J.C.A.

WHETHER OR NOT APPROBATING AND REPROBATING IS ALLOWED BY THE COURT OF APPEAL

In other words, approbating and reprobating at the same time and that cannot be encouraged by this Court. See: EZULUMERI OHIAERI & Anor. v. ADINDU AKABEZE & Ors (1992) LPELR-2360 (SC); ADEGOKE MOTORS Ltd v. ADESANYA & Anor (1989) LPELR-94 (SC); ENGR. GODFREY EZE v. NIGERIAN AIRSPACE MANAGEMENT AGENCY & Ors (2016) LPELR-41453 (CA). PER AGUBE, J.C.A.

WHETHER OR NOT THE TRIAL COURT HAS THE DUTY OF HEARING AND WATCHING THE DEMEANOR OF WITNESS(ES) AS THEY TESTIFY BEFORE IT AND EVALUATING THE EVIDENCE BEFORE ASCRIBING PROBATIVE VALUE TO THE EVIDENCE ADDUCED

The law is trite that the Trial Court is indeed placed in a better position and saddled with the onerous duty of hearing and watching the demeanor of Witness(es) as they testify and thereafter place the evidence of the parties before an imaginary scale for the purpose of evaluating which of the evidence of the parties is heavier based on the preponderance of evidence and balance of probability which is the criteria for weighing evidence in civil Suit before ascribing probative value to the evidence so adduced; thereby deciding the case in whose favour the scale of justice tilts to. See JULIUS BAYODE AYENI v. THE STATE (2016) LPELR-40105 (SC); FEDERAL REPUBLIC OF NIGERIA v. FAITH IWEKA (2011) LPELR-9350 (SC); MR. KWASI KARIKARI ADUSEI & Anor v. MR. TOYIN ADEBAYO (2012) LPELR-7844 (SC); ONYIBOR ANEKWE v. MARIA NWEKE (supra) Once that duty is satisfactorily discharged by the Trial Court, this Court and all Appellate Courts have little or nothing to do in the circumstance than to affirm the decision of the Lower Court. See JOSEPH BILLE v. THE STATE (2016) LPELR-40832 (SC). PER AGUBE, J.C.A.

FACTORS TO BE CONSIDERED BEFORE AN OATH CAN BE LEGALLY BINDING

For an oath to be legally binding, it must be administered by competent authority, see Section 10 of the Oaths Act. A deponent must mark or sign an affidavit or deposition in the presence of the person before whom the oath is taken. From the provisions of Section 112 of the Evidence Act, 2011, Section 19 of the Notaries Public Act and from the decision in Buhari v. INEC (2008 LPELR-814(SC), the person before whom the oath is taken cannot be (1) a person on whose behalf the same is offered, (2) the legal practitioner of the deponent, which includes a notary public; and (3) a partner, including a notary public, or clerk of the deponent’s legal practitioner. See also: Erokwu v Erokwu (2016) LPELR- 41515(CA). By virtue of the provisions of Section 10 of the Oaths Act, persons before whom an oath can be taken include a commissioner for oaths. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Nasarawa State High Court Holden at Maraba Judicial Division, delivered by Hon. Justice Asma’u M. Mainoma on the 10th of February, 2017 wherein he granted the Plaintiffs (now Respondents) all the Reliefs sought in the Writ of Summons and Statement of Claim.

Dissatisfied by the said Judgment, the Appellants (then Defendants) filed a Notice of Appeal with Six Grounds on the 27th February, 2017 but dated 13th February, 2017. The said Grounds are herein set out below without their respective particulars, to wit:
“GROUND ONE (1):
The Lower Court lacked the jurisdiction to entertain the suit as the Respondents’ Writ of Summons by which the jurisdiction of the Court was invoked was incompetent and incurably defective.
GROUND TWO (2):
The Lower Court erred in law when it held that the Statement on Oath of PW1, PW2 and PW3 were properly sworn.
GROUND THREE (3):
The Lower Court erred in law when it granted the Respondents, the sum of N11,500,000.00 (Eleven Million Five Hundred Thousand Naira) only as their

agency fee without any evidence in support of the same.
GROUND FOUR (4):
The Lower Court erred in law when it held that the contradictions in the evidence of PW1, PW2 and PW3 on the payment of N12,500,000.00 (Twelve Million Five Hundred Thousand Naira) agency fee to the Respondents by the FCT Chapter of the NLC were not material and that the payment was not in issue.
GROUND FIVE ( 5):
The findings by the Lower Court that failure to reply to the Respondents’ Letter dated 20th April, 2012 (Exhibit E2), is an admission of the Respondents’ Claim by the Appellants and that the Appellants’ Approved Expenditure Voucher dated 26th March, 2013 and received by the Respondents on the 11th April, 2013 infers agency relationship, are not supported by the evidence led before the Court and therefore perverse.
GROUND SIX (6):
The Lower Court erred in law when it dismissed the Appellants’ Counter-Claim without properly evaluating the evidence in support of the same before the Court.
RELIEFS SOUGHT:
1. Allowing the Appeal, Setting aside the decision of the Trial Court dated the 10th day of February, 2017 and

dismissing the Respondents’ Suit.
2. Granting the Appellants’ Counter- Claim.”

The Record of Appeal was transmitted to this Honourable Court on the 30th May, 2017.

STATEMENT OF FACTS:
The Respondents (who were Plaintiffs at the Lower Court commenced this suit by a Writ of Summons under the Undefended List Procedure claiming the sum of N11,500,000,00 (Eleven Million Five Hundred Thousand Naira) purportedly owed by the Appellants as agency fee for a land transaction. The Appellants later filed a Notice of Intention to defend the suit and the matter was transferred to the General Cause List for hearing on the merit. The Respondents thereafter filed a Joint Statement of Claim and accompanying processes as can be gleaned at Pages 183-201 of the Record of Appeal while the Defendants/Appellants filed a Joint Statement of Defence and Counter-Claim as can be gleaned at Pages 215- 231 of the Record of Appeal. The Respondents also filed a Reply to the Statement of Defence and Defence to Counter-Claim as can be gleaned at Pages 241-247 of the Record of Appeal after which the matter was then set down for hearing and at the end of trial

which the Learned Trial Judge entered Judgment in favour of the Plaintiffs/Respondents culminating in the instant Appeal.

ISSUES FOR DETERMINATION:
In compliance with the extant Rules of this Court, ABDULAZIZ IBRAHIM Esq. settled the Appellants’ Brief of Argument dated 10th of April, 2017 but filed on the 11th day of April 2017 wherein he formulated Four (4) Issues as arising from the Grounds of Appeal, to wit:-
“1. Whether from the evidence adduced during Cross- Examination by the Appellants, it can be said that the Witnesses Statements of Oath of PW1, PW2 and PW3 were duly deposed to in accordance with the law? (Ground 2).
2. Whether the material contradictions in the evidence elicited from PW1, PW2 and PW3 under Cross-examination on the issue of the actual agency fees allegedly paid by the NLC, FCT Chapter is immaterial and irrelevant to the claim of the Respondents? (Ground 4).
3. Whether from the totality of the evidence before the Trial Court, there was an agency relationship established between the Appellants and the Respondents and/or there was an agreement on the agency fee to be paid to the Respondents to entitle

them to the grant of their claim? (Grounds 3 and 5).
4. Whether the Trial Court evaluated the Evidence and appraised the facts in support of the Appellants’ Counter-Claim before dismissing the same? (Ground 6).”

On the other hand, ILIYA A. HARUNA Esq., who settled the Respondents’ Brief of Argument dated and filed on 12/5/2017 adopted the Issues for determination as distilled by the Learned Counsel to the Appellants in their Brief of Argument.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER ONE (1):
In arguing this Issue, the Learned Counsel for the Appellants posited that the Law is trite that in civil proceedings, the burden of proof is non-static but rather, it moves forward and backward like a pendulum. Thus, a party who asserts the existence of a particular fact is required to prove such fact by adducing credible evidence. Where the existence of such fact is proved by the asserting party, such burden is said to have been discharged and the burden is then said to have shifted to the party’s adversary to prove otherwise, the learned Counsel submitted. In the instant case, the Learned Counsel for

the Appellants contended, the PW1, PW2 and PW3 while giving evidence in chief all asserted that their Witnesses’ Statements on Oath were made before the Trial Court. However, under Cross-examination, they reneged on their earlier evidence as can be gleaned at Pages 308, 311 and 318 of the Record of Appeal.

He then argued that flowing from the above, the admission of PW1, PW2 and PW3 watered down the presumption of regularity enjoyed by the Respondents’ Witnesses’ Statement on Oath with respect to the swearing and signing of their Depositions and same rebutted by them under cross-examination. He asserted that the burden shifted to the Respondents to prove that PW1, PW2 and PW3 though signed their Depositions in their Lawyer’s Office subsequently appeared before the Commissioner for Oaths to swear and identify their signatures on the Depositions. The Learned Counsel to the Respondents, it was further submitted, failed to use the window of re-examination to clarify this grey area and no other evidence was adduced by the Respondents at the trial to negate the issue raised regarding the Depositions of PW1, PW2 and PW3.

The Learned

Counsel then referred the Court to the findings of the Lower Court on this issue as can be gleaned at Page 335 of the Record of Appeal and submitted that the Learned Trial Judge misplaced the burden of proof on the Appellants who had successfully proved under cross-examination that the signing of and swearing to the Statements on Oath of PW1, PW2 and PW3 were not done in Court before the Commissioner for Oaths in compliance with the law. He posited that it behoves on the Respondents and not the Appellants to show that though PW1, PW2 and PW3 signed their Witnesses’ Statements on Oath before their Lawyer, the said PW1, PW2 and PW3 subsequently appeared before and identified their signed Statements on Oath before the Commissioner for Oaths signed same and there was no evidence adduced in this regard.

The learned Counsel for the Appellants then posited that the law is settled that where a Court shifts the burden of proof on a wrong party, the Judgment of the Court ought to be set aside. The following cases were cited and relied upon in support of the foregoing submissions: ADIGHIJE v. NWAOGU (2011) FWLR (Pt. 559) 1006; BUHARI v. OBASANJO (2005) ALL

FWLR (Pt. 273) 1; UBN LTD. v. OSEZUAH (1997) 2 NWLR (Pt. 485) 28; NOR v. TARKAA (1998) 4 NWLR (Pt. 544) 130.

Moving on, he submitted that the case cited by the Respondents’ Counsel in his Final Address at the Lower Court i.e. SPDC v. AMADI (2010) NWLR (Pt. 1210) 82; is apposite to distinguish but referred the Court to the dictum of EKO, JCA at Page 142, Paragraphs F-G on this issue and further submitted that in the instant case, the Respondents did not adduce any evidence that the PW1, PW2 and PW3 after signing their Depositions in their Lawyer’s Office subsequently appeared before the Commissioner for Oaths for identification of their signatures before the Commissioner signed same. He cited and relied on the case of CHIDUBEM v. EKENNA (2009) FWLR (Pt. 455) 1693 at 1706, Paragraphs D-C in urging the Court to resolve this Issue Number One (1) in favour of the Appellants.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER TWO (2):
In his argument on this Issue, the learned Counsel for the Appellants alluded to the provisions of SECTION 4 of the EVIDENCE ACT, 2011 and asserted that the crux of the Respondents’ case

is that they are entitled to be paid the sum of N25,000,000.00 (Twenty Five Million Naira) only as agency fee jointly by the Appellants and the FCT Chapter of the 1st Appellant. The Respondents, according to the learned Counsel, went on to give evidence through PW1, PW2 and PW3 that the FCT Chapter had paid its own portion in the sum of N12,500,000.00 (Twelve Million Five Hundred Thousand Naira) only, leaving the Appellants outstanding balance/portion to be paid, thereby putting in issue the payment made by the NLC, FCT Chapter.

The Learned Counsel, then posited in the light of the above that, since the payment allegedly made by the FCT Chapter is connected to the claim in the Respondents’ Suit having flown from the same transaction, it goes to show that the facts arising from the payment allegedly made by the FCT Chapter were relevant to the facts in issue before the Trial Court by virtue of the provision of the Evidence Act cited above. Based on the foregoing, the Learned Counsel to the Appellants referred the Court to the evidence-in-chief and under cross-examination of PW1 (Pages 199 and 308 of the Record of Appeal); PW2 (Pages 194 and 310 of

the Record of Appeal) and PW3 (Pages 190 and 317 of the Record of Appeal) which were contrary to their respective Witnesses’ Depositions and submitted that the Trial Court ignored all these facts on grounds that the contradictions in the evidence of PW1, PW2 and PW3 were immaterial as the fees paid by the FCT Chapter was not in issue. He therefore referred to the findings of the Lower Court on this point as can be gleaned at Page 341 of the Record of Appeal.

The Learned Counsel further contended that the above findings/conclusions made by the Trial Court are misconceived in view of the provision of the Evidence Act (supra) and failure of the Trial Court to consider, evaluate and weigh the evidence elicited from PW1, PW2 and PW3 as to the issue of Agency Fee paid by the FCT Chapter which payment arose from the same transaction; occasioned a miscarriage of justice to the Appellants as the contradictions contained in their evidence particularly PW3 (2nd Respondent) proved the fact that there was no any agreement that the Respondents are entitled to the sum claimed as Agency Fee or any sum at all. He therefore, urged the Court to resolve Issue Number

Two (2) in favour of the Appellants and set aside the judgment of the Trial Court.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER THREE (3):
In arguing this Issue, the Learned Counsel placed reliance on the case of ONYIBOR ANEKWE v. MARIA NWEKE (2014) ALL FWLR (Pt. 739) Pp. 1175-1177, Paras. H-A and BALOGUN v. LABIRAN (1988) 19 NSCC (Pt. 1) 1056; in submitting that it is the duty of a Trial Court to weigh and evaluate all evidence adduced before ascribing probative value to such evidence and that this Court will not ordinarily interfere with such findings unless there is ample evidence which the Trial Court failed to evaluate and make correct findings on the issues and facts placed before it.

According to the Appellants, the Trial Court was in error when it inferred agency relationship between the Appellants and the Respondents and granted the sum of N11,500,000.00 (Eleven Million Five Hundred Thousand Naira) only as claimed by the Respondents without an iota of evidence in support of the same before the Court. He went on to contend that by the Respondents’ claim, they had the burden of proving that Owei Lakemfa had the

authority of the Appellants when they approached the Respondents and were authorized to negotiate the Agency Fee of the Respondents. He asserted that during the Trial, the Appellants led evidence to show that at no time did they instruct PW1, PW2, Owei Lakemfa or any other person to approach the Respondents with a view to procuring a parcel of land on behalf of the 1st Appellant nor were PW1, PW2 or Owei Lakemfa or any other person authorized to negotiate Agency Fee on any land with the Respondents on behalf of the 1st Appellant.

On the contention whether there was Agency Fee, the Learned Counsel for the Appellants submitted that the Respondents failed to prove that PW1, PW2 or Owei Lakemfa had the authority to negotiate agency on behalf of the Appellants. The evidence of PW1 as to the admittance of this fact was referred to at page 309 of the Record of Appeal. Furthermore, the learned Counsel argued, there was no evidence led by the Respondents to show that the Appellants did inform the Respondents that they are entitled to the sum of N12,500,000.00 as agency fee and PW2 (3rd Respondent) also admitted that fact at Page 316 of the Record of Appeal. He

then posited that based on the above admission by PW1 and PW3 (2nd Respondent) regarding agency fee, the Respondents’ claim of agency fee is based on hearsay as the Appellants never contacted the Respondents with respect to the land at Ado Kasa talk less of discussing agency fee with them. He submitted that the Trial Court ought to have dismissed the Respondents’ claim as the burden of proving that there was an instruction to negotiate the issue of Agency Fee was not discharged there being no scintilla of evidence showing the approval of PW1, PW2 or Owei Lakemfa who approached the 2nd Respondent to negotiate Agency Fee on behalf of the Appellants. The case of OKEDION v. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2008) ALL FWLR (Pt. 441) 914 at 940, Paras. A-B; AJIDE v. KELANI (1985) 11 SC 124 and YUSUF v. ADEGOKE (2007) ALL FWLR (Pt. 385) 385 at 405; were cited and relied upon in so submitting.

It was further argued that nothing was placed before the Trial Court either documentary or oral to show that PW1, PW2 or Owei Lakemfa derived their authority from the 1st Appellant and that there was no evidence to link the Appellants with the alleged

instruction given to PW1, PW2 and Owei Lakemfa. He referred the Court to the evidence of PW2 in-chief and cross-examination at page 307 of the Record of Appeal and submitted that it was clear that the instruction purportedly relied on by PW1 to approach the 2nd Respondent was not from the 1st Appellant but from Owei Lakemfa and same was admitted by PW2 at Page 310 of the Record of Appeal under cross-examination. On that note, the Learned Counsel for the Appellants submitted that PW1 and PW2 acted on the instructions of Owei Lakemfa and not the Appellants. At the trial, Owei Lakemfa was not called to give evidence that he acted on the 1st Appellant’s instructions. There was no evidence at the Trial Court to link the act of PW1 and PW2 with the Appellants as both admitted that they had instructions from Owei Lakemfa when they approached the Respondents.

The Learned Counsel for the Appellants posed the question whether assuming but without conceding that Owei Lakemfa was instructed to procure land by the 1st Appellant, Owei Lakemfa could sub-delegate the instructions without the consent or knowledge of the 1st Appellant? In other words, assuming

without conceding that Owei Lakemfa is an agent of the 1st Appellant, he can sub-delegate his functions to the Respondents without the knowledge or consent of the 1st Appellant? He answered the above questions in negative and cited the Legal Maxim “delegatus non potest delegare” relying on the case of NEPA v. OSOSANYA (2000) 15 WRN 1 at 11; and posited that contrary to the findings of the Lower Court at page 341, the said findings are perverse and unsupported by any evidence as the mere fact and/or assertion that PW1, PW2 and Owei Lakemfa approached the Respondents does not ipso facto constitute circumstance from which an agency relationship can be inferred since there was no evidence at the Lower Court linking the Appellants with the acts of PW1 and PW2. He maintained also that there was no document tendered by the Respondents which would warrant an inference that PW1, PW2 and Owei Lakemfa had the authority of the Appellants when they approached the Respondents.

In the light of the foregoing, the learned Counsel to the Appellants relied on the case of MOGAJI v. ODOFIN (1978) 4 SC 91 and CHUKWU v. AMADI (2009) NWLR (Pt. 1127) 56 at 90; in

submitting that the Trial Court failed to properly evaluate the evidence led by the Respondents which were laden with material contradictions. Apart from the contradictions on the issue of actual Agency Fee paid by the FCT Chapter, the Respondents’ Witnesses, the learned Counsel also submitted, contradicted themselves on the source of the instructions which necessitated them to approach the Respondents (See pages 307, 308, 310 of the Record of Appeal). Consequently, the findings of the Trial Court, he maintained, ought to be set aside. Furthermore, he contended that the Learned Trial Judge misapprehended the evidence of PW3 which was given under cross-examination as can be gleaned at page 317 of the Record of Appeal in the latter part of his Judgment at page 329 of the Record of Appeal which led to the Trial Judge granting the claim of the Respondents and same was perverse.

According to the Learned Counsel for the Appellants, the position of the Trial Court on Exhibit E2 was not supported by evidence before the Court. He explained that while Exhibit E2 was written on the 20th April, 2012 and Exhibit ES4 was received by the Respondents on the 26th

March, 2013 as full and final settlement of their claim. The Respondents did not thereafter send any other correspondence to the Appellants regarding their claim in Exhibit E2. He then posited that the Trial Court ought to have considered the dates in the two exhibits which would have shown that Exhibit E2 was earlier in time and had been responded to with Exhibit ES4; but the Trial Court concluded that there was no reply to Exhibit E2 and the silence by the Appellants raised a presumption of admission. He further argued that the Trial Court’s findings would have been right had it been that the Respondents wrote another correspondence to the Appellants after receiving Exhibit ES4 to which the Appellants failed to respond. In that vein, he then submitted that the failure of the Respondents to follow up Exhibit ES4 with another demand letter proves the Appellants’ case that the payment made to the Respondents’ vide Exhibit ES4 was full and final settlement of their claim.

The Learned Counsel for the Appellants further posited that the evidence of DW1 at page 226 of the Record of Appeal, Paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 were

uncontroverted by the Respondents. He then posed the question as to whether it can be said that the Appellants admitted the existence of an agency relationship. He submitted that the law is trite that admission must be specific, direct, positive, categorical and unequivocal. The authority ofJOSEPH v. FIRST INLAND BANK (NIG.) PLC. (2010) ALL FWLR (Pt. 504) was relied upon in concluding and asserting on this Issue that from the evidence placed before the Trial Court, there is nothing to show that an agency relationship existed between the Appellants and the Respondents and that the circumstances leading to the issuance of Exhibit ES4 cannot in any way be said to be directly or indirectly suggestive of an existence of agency relationship between the Appellants and Respondents. He therefore urged on us to resolve this Issue Number Three (3) in favour of the Appellants.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER FOUR (4):
In his Argument on this Issue, the Learned Counsel for the Appellants posited that the law is trite that it is the duty of the Trial Court to consider all pieces of evidence adduced before it by the parties and

make findings of fact before entering Judgment. He referred the Court to the pleadings of the Appellants through DW1 at the Lower Court in support of their Counter-Claim which can be gleaned at Pages 226-227 of the Record of Appeal. He then argued that the above evidence or pleadings stood un-contradicted by the Respondents at the Trial and referred the Court to the evidence of DW1 under cross-examination at Page 319; the Evidence-in-chief and under cross-examination of PW1 and PW2 at Pages 199, 309 and 194 respectively.

He went on to submit that the evidence of PW3 during cross-examination supports the Appellants’ Counter-Claim (Pages 317 and 318 of the Record of Appeal) and the Learned Trial Judge failed to evaluate the entire evidence in support of the Counter-Claim as the Appellants’ Counter- Claim was adjudged to be a criminal allegation by the Trial Court and that it required proof beyond reasonable doubt (Page 342 of the Record). He further maintained that the Appellants’ Counter-Claim was as a result of a tortuous act of the Respondents which is civil and can be maintained under tort which is proved on the balance of probability

and preponderance of evidence and not by proof beyond reasonable doubt. ISHOLA v. UBN NWLR (Pt. 922) 422 referred.

According to the Learned Counsel for the Appellants, by a host of judicial authorities, where the findings of fact made by a Trial Judge are not supported by evidence or where the findings of the a Trial Court is based on a misapprehension of facts, the Appellate Court is in as much a good position to deal with the facts as the Trial Court would have done. He therefore argued that the Learned Trial Judge failed to sum up, evaluate, review and make findings of facts on the evidence in support of the Counter-Claim and thus this Court is in as much a good position to make findings on the Counter-Claim of the Appellants. On the whole, he urged the Court to resolve this Issue Number Four (4) in favour of the Appellants by holding that the Appellants’ Counter-Claim was proved on the preponderance of evidence.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER ONE (1):
In opposition to the submissions of the Learned Counsel to the Appellants on this Issue, the Learned Counsel to the Respondents contended that the

Appellants are quick to consider the evidence that was elicited during cross-examination as if same was an end unto itself. He argued that the misconception of the intent of using the Witnesses’ Deposition before the trial thereby tilting towards technicality to deviate the mind of the Court was condemnable. He submitted that the witnesses stated that they signed their Witnesses’ Depositions in their Counsel’s Office under cross-examination. However, the learned Counsel added earlier on, during their examination-in-chief, they stated that they made their Depositions before the Commissioner for Oaths. The Depositions were shown to them and they admitted making same before the Trial Court and adopted same as their respective pieces of evidence.

According to the Learned Counsel to the Respondents, the Appellants’ grouse is not with the authentication of the said Depositions by the Officer of the Trial Court but with the signing of same by the PW1, PW2 and PW3 in the Chambers of their Counsel. He then submitted that what makes an affidavit, is the swearing on Oath that the declaration in the document is true and the signature and stamp

of the Commissioner for Oaths before whom the Depositions were made. He went on to state that even where a witness admits that the document was signed before a Counsel, the Depositions would not be thrown away by the Court where it is shown on the face of the Affidavit/Depositions that they were made before the Commissioner for Oaths or an authorized officer of the Court. He cited and relied on the case of SPDC LTD. v OJIOWHOR MONDAY AMADI & Ors, (2010) 13 NWLR (Pt. 1210) 82 at 142, Paragraphs. C-D; in support of his submission.

Per contra to the submissions of the Learned Counsel for the Appellants in Paragraphs 4.5 -4.8 of their Brief of Argument, the Learned Counsel to the Respondents submitted that the said contention is a gross misconception of the law as documents speak for themselves. He maintained that since on the face of the Depositions, the signature and stamp of the Commissioner for Oaths are contained therein; indicating that the Depositions were made before him, the Respondents had no duty to adduce evidence to prove that the said witnesses identified their respective signatures before the Commissioner for Oaths signed them. He posited

further that oral or extrinsic evidence cannot be used to contradict or vary the contents of a document and also that for an affidavit to be valid, it must be sworn to and signed by the deponent and authenticated by the appropriate Officer of the Court or Notary Public which the Depositions of PW1, PW2 and PW3 complied with. He cited and relied on the cases of ALFA RAMONI WOMILOJU v. MADAM ABOSEDE KIKI & Anor (2009) 16 NWLR (Pt. 1166) 143 at 153, Paras. F-H; SENIOR STAFF ASSOCIATION OF UNIVERSITY TEACHING HOSPITALS, RESEARCH INSTITUTES AND ASSOCIATED INSTITUTIONS (SSAUTHRIAI) & 2 Ors. v DR. SUNDAY OSSAI OLOTU (2016) 14 NWLR (Pt.1531) 1 at 5, Paras. C-D; to buttress the above submission.

The Learned Counsel for the Respondents further argued per contra to the submissions of the learned Counsel to the Appellants that under re-examination, the Respondents ought to have rested the matter by asking if the witnesses had afterwards subsequently presented themselves before the Commissioner for Oaths; was a misconception of the law since the documents before the Court were the same documents the witnesses said they made before the Commissioner for Oaths.

According to the Learned Counsel for the Respondent, the Commissioner for Oaths did an official act which to all intents and purposes was done in accordance with the law. If there was any evidence to the contrary, it should be brought forward and not speculated upon by the Trial Court. He went on to argue that if the Respondents’ case is thrown out based on the Appellants’ contention, that will amount to deciding the case is technicalities and the era of such technicalities is long gone.

According to the Respondents’ Learned Counsel, the Appellants only chose to make emphasis on the findings of His Lordship Eko, JCA in AMADI v. SPDC (supra) but on the contrary, submitted that in the absence of any evidence in that respect, the Commissioner for Oaths is the best person in this issue. He posed the questioned thus: “has he done so?” and answered same by stating that his endorsement on the deposition clearly shows that it was duly sworn before him.

Learned Counsel accordingly was of the view that the argument that the burden of proof had shifted at any point during trial as to the Witness Depositions before the Trial Court

is misplaced by the Appellants. In the light of the foregoing, the Learned Counsel for the Respondents urged the Court to hold that the burden had continually been on the Appellants to show a rebuttal of the presumption in favour of the Respondents since the act was an official act; the Respondents have clearly no control over same. He finally submitted on Issue that the Court should look beyond the hullabaloo of the Appellants and determine this matter on the merit.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER TWO (2):
Reacting to the submissions of the learned Counsel to the Appellants on Issue Number Two (2), the Learned Counsel for the Respondents posited that the contention before this Court as was indeed before the trial Court is that there was no Agency Relationship between the parties as to entitle the Respondents to Judgment but that unfortunately for the Appellants, they worked assiduously on this issue at the Trial Court and failed and judgment was entered for the Respondents that they had a relationship with the Respondents that necessitated their payment of fees to the Respondents which led to the judgment of the

Lower Court that the Respondents be paid the outstanding sum being N11,500,000.00 (Eleven Million Five Hundred Thousand Naira) only.

Contrary to the submissions of the learned Counsel to the Appellants on the issue of payment of Agency Fees by the FCT Chapter to the Respondents, he referred the Court to the evidence of PW3 in paragraph 16, PW2 in paragraph 15 and PW1 in paragraph 14 of their respective Depositions. He therefore submitted that from the evidence of the PW1, PW2 and PW3 respectively, there was consistency in the Statements of the Witnesses and the attempt by the Appellants to infer a contradiction in the testimonies of Witnesses is herein defeated and the Trial Court who had the benefit of seeing the Witnesses, did not find fault in their explanations of the negotiated consideration for the FCT Chapter. He further submitted that the Appellants cannot approbate and reprobate whereas they have maintained that they never mandated the Officers of the FCT to negotiate on their behalf.

The learned Counsel to the Respondents contended further that the attempt by the Appellants to draw these issues into the premise for determination of this

Appeal is ill conceived because the cross-examination did not take out the fact that a negotiation took place between the duo of the PW1 and PW2 alongside Owei Lakemfa (the Acting Secretary General of the 1st Appellant); to negotiate for land which was clearly shown that it was subsequently purchased by the 1st Appellant and the Respondents were the vehicle from which the 1st Appellant got the land. He referred the Court to the findings of the Lower Court at page 341 paragraph 4 of the Record of Appeal, to buttress the above submission.

On the whole, the learned Counsel to the Respondents submitted that the Appellants failed to discharge the onus of proof placed on them to show the material contradictions in the testimonies of the Witnesses and how it affected the outcome of the transaction between the parties. He then urged the Court to resolve this Issue Number Two (2) in favour of the Respondents.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER THREE (3):
The learned Counsel for the Respondents prefaced his argument by agreeing with the submissions of the Learned Counsel for the Appellants in Paragraph 6.1 of their Brief

of Argument but added that the reverse of it, is to show that the Court had perversely not done the needful to the facts led in evidence before it. According to the Learned Counsel, the Appellants did not draw the attention of this Court to how the Trial Court failed to evaluate each and every material piece of evidence that were such compelling facts in the trial that the decision of the Court should have gone otherwise than it did. He posited that agency can be defined as one party describing the work while another party does the work. In the instant case, it was submitted that it was the 1st Appellant that described the work, which was the location of a suitable piece of land for the 1st Appellant to purchase for use as a Workers Village whereas the party that did the work were the Respondents. On the question whether the Respondents were entitled to remuneration and how much they were entitled to for their services, the learned Counsel to the Respondents submitted that the evidence before the Trial Court is that PW1, PW2 and Owei Lakemfa (who was one of the Officials of the Appellants), approached the Respondents with the mandate of the 1st Appellant but

that mandate however, now seems to be in contention, whereas the product of the purported mandate is not. He further argued that the mandate was to secure land and the evidence show that the land was secured by the Respondents at Kasa in Nassarawa State which was purchased by the 1st Appellant. On Exhibit A, B and B1 at Page 116 – 124; it was submitted by the learned Counsel to the Respondents that both the NLC Headquarters and the FCT Chapter signed the said documents which evidence was unchallenged and un-controverted at the Trial Court.

The learned Counsel for the Respondents referred the Court to the evidence DW1 at the Lower Court which can be gleaned at pages 319-320 of the Record of Appeal and submitted that the work is without doubt defined and the worker that undertook the work is shown as well as the 2nd Plaintiff (2nd Appellant). On the contention of the Appellants on remuneration, he went on to argue that Exhibit C was clear wherein they wrote a letter for N12,500,000.00 which the Appellants never thought it necessary to join issues on rather they made a payment of N1,000,000.00 to the Respondents. On the case cited by the Appellants

i.e. OKEDION v. FAAN (supra) on onus probandi, the Learned Counsel agreed with the Appellants on the position of the law but added that the Appellants failed to add that where the onus is discharged it shifts to the other party.

According to the Learned Counsel, the Respondents have rightly captured the relationship between the parties and the learned Trial Judge was right when he made the findings at Pages 338-341 especially at 338 of the Record of Appeal. In concluding his submissions on this Issue, he urged the Court to resolve the Issue Number Three (3) in favour of the Respondents and not be persuaded by the line of thoughts of the Appellants.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER FOUR (4):
Arguing per contra to the submissions of the Learned Counsel for the Appellants, the Learned Counsel for the Respondents posited that this Issue be resolved in the affirmative. He submitted further that the Appellants never took time to read the Judgment and notice the observations of the Trial Court on the import of the evidence they adduced in respect of its Counter-Claim. He referred the Court to the findings of the Lower

Court on this at Page 341-343 of the Record of Appeal.

Relying on the case of GUARDIAN NEWSPAPERS LTD & Anor. v REV. PASTOR C. I. AJEH (2011) 10 NWLR (Pt. 1256) 574 at 582 Ratio 12; he submitted that the Trial Court in a well considered judgment evaluated the evidence led in support of the Counter-Claim and the facts elicited under Cross-examination and urged the Court to uphold same that the Counter-Claim lacked merit and therefore failed. He posited that since the Trial Court heard the evidence of parties, evaluated same, believed the evidence of the Respondents rather than that of the Appellants on the relationship of the parties that led to the transaction wherein the Workers Village was purchased at Ado Kasa, Karu, Nassarawa State as it relates to the fees payable to the Respondents for services rendered, the Judgment of the Lower Court now on Appeal is not perverse and should not be interfered with by this Honourable Court.

Based on the foregoing, according to the Learned Counsel for the Respondent, every worker is entitled to his wages and where the Appellants have not strictly disputed that the Respondents worked and the Trial Court found

that indeed the Respondents worked to facilitate the success of the transaction, the obvious is to pay the wages for the Respondents which the Trial Court rightly did when it held that an Agency Relationship is inferable from the conduct of the parties. He then urged this Honourable Court to resolve this Issue Number Four (4) in favour of the Respondents and dismiss the Appellants’ Appeal.

RESOLUTION OF ISSUES:
RESOLUTION OF ISSUE NUMBER ONE (1):
After a careful reading and consideration of the respective submissions of the Learned Counsel for the parties as to the burden of proof in Civil matters, I have no hesitation than to agree with them that the law is firmly settled that the burden of proof is not static as in criminal matters but shifts from one party to another as the party asserting the existence of a fact is required to discharge the burden placed on him/her which if successfully done; the burden then shifts to the other party to adduce evidence in rebuttal to the evidence of the asserting party as to the non existence of a fact asserted by the opponent. In fact, the Apex Court in NNAEMEKA OKOYE & Ors. v. OGUGUA NWANKWO

(2014) LPELR-23172 (SC) re-echoed the position of the law as to how the burden of proof in Civil matter is discharge when it held thus:-
“The burden of Proof in civil cases has two distinct meanings, viz: (a) the first is the burden of proof as a matter of law and pleadings usually referred to as the legal burden or burden of establishing the case; (b) the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as the scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the Plaintiff to the Defendants and vice-versa as the case progresses…” Per Odili, JSC (pages 25-26, paragraphs F-E)
See also; FEDERAL MORTGAGE FINANCE LTD v. EKPO (2004) 2 NWLR (Pt. 856) 100 at 130 per OLAGUNJU, JCA; BALOGUN v. LABIRAN (supra); NWOSU v. UDEOJA

(1990) 1 NWLR (Pt. 125) 188; ADEGOKE v. ADIBI (1992) 5 NWLR (Pt. 242) 410 to mention but a few.
The decisions in the above cited authorities are in line with the provisions of Sections 131-134 of the Evidence Act, 2011 and in particularly Section 133 provides that:
“133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.
(2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
Section 134 thereof on the other hand stipulates that:
“134. The burden of proof shall be discharged on the balance of

probabilities in all civil proceeding.”
See Pali vs. Abdu (2019) 5 NWLR (Pt.1665) 320 at 334 paragraphs A-E per Eko, JSC.

Bearing in mind the above position of the law vis-à-vis the contention of the Appellants on this issue; that the evidence elicited from the PW1, PW2 and PW3 under Cross-examination that their Witnesses’ Depositions were made at the office of their Counsel which is contrary to their evidence-in-chief that they made their respective Witnesses’ Depositions before the Commissioner for Oaths were vital contradictions and the Trial Court ought to have considered the said purported contradictions in discrediting the Respondents’ witnesses testimonies in the circumstance having not complied with the Oath Act. It is indubitable that a party can elicit evidence from his opponent under cross-examination which can conveniently be relied upon in support by the Defence without calling any other witnesses to testify. However, evidence elicited under cross-examination is not a product of wild goose chase but must be centered on pleaded facts which he seeks to rebut in support of his defence and nothing more.

In the instant case, I have perused the evidence of the Respondents’ witnesses (PW1, PW2 and PW3 respectively) under cross-examination at Pages 308, 311 and 318 respectively wherein they stated that they signed their Statements on Oath at their office and that of their lawyer’s office respectively. However, assuming that the submissions of the Learned Counsel for the Appellants that the presumption of regularity enjoyed by the Respondents’ Witnesses’ Statement on Oath have been rebutted is anything to go by; it is our view that the Appellants are not challenging the authenticity of the said Witnesses’ Depositions which from the Record before this Court, the said Depositions were duly endorsed by the Commissioner for Oaths and same was adopted by the Respondents’ witnesses in their evidence-in-chief. It is our further view that the evidence elicited by the Appellants under cross examination was not borne out of pleaded facts by the Respondents in their pleadings, worse still, the objection to the Respondents’ Witnesses Depositions was not timeously raised but they

(Appellants) had rather allowed the witnesses to adopt their respective Depositions as their evidence in the suit before challenging the said Depositions under cross-examination. I think this action and/or step taken by the Appellants was belated in time and as it is said over time that “Equity aids the vigilant” and not the indolent. From the foregoing, it is my considered view that since the Appellants are not challenging the authenticity or otherwise of the Respondents’ Witnesses Depositions as to the endorsement by the Commissioner for Oaths or any other authorized person as stipulated in the Rules of Court of the Lower Court by setting forth a contrary document or Depositions of the Respondents’ witnesses in the suit, I am inclined to agree with the submissions of the Learned Counsel for the Respondents, that since the Witnesses (PW1, PW2 and PW3) swore by Oath in their respective Depositions which were signed and stamped by the Commissioner for Oaths as can be gleaned from the Record of Appeal at pages 191,195 and 201 respectively, the presumption of regularity and compliance with the Oaths Act, 2004 is invoked in favour of

the Respondents in the absence of any evidence challenging the authenticity or endorsement on the said Respondents’ witnesses depositions which were duly adopted as their evidence in the suit. There was no need of calling the Respondents to disproved any fact by shifting the burden when indeed the challenge to the Depositions of witnesses were belated in time and were not borne out of pleaded facts. I totally agreed and affirm the findings of the learned Trial Judge at Page 334 of the Record of Appeal wherein he said thus:-
“The position of the law is clear that he who asserts must prove and so with the questions and answer during the examination in chief of the Plaintiffs’ Witnesses, it behoves on the defence Counsel to show that the statements which the Plaintiffs’ Witnesses said they signed at their Lawyers’ Office is the same which they adopted in Court.”
And may I also add that the case of the Appellants would have been different if they were challenging the endorsement on the adopted Depositions of the Respondents’ Witnesses since during evidence-in-chief; they alluded to signing their respective

Depositions at their office and Lawyer’s Office respectively.
I therefore find no evidence on record capable of throwing out the evidence of the Respondents’ Witnesses via their respective Witnesses’ Depositions as the burden of proof on the Appellants who attempted to challenge the evidence of the Respondents’ Witnesses was not satisfactorily discharged. Accordingly, the burden never shifted on the Respondents to prove otherwise as they were expected by the Appellants in that the documents before the Court speak for themselves and cannot be varied and/or contradicted by oral evidence. The said Depositions were sworn to, signed by the Deponents and authenticated by the Commissioner for Oaths or by any other authorized Officer of the Court and presumption of regularity inures in the Respondents’ favour. In the case of HOPE UZODINMA v. SENATOR OSITA B. IZUNASO & Ors. (2011) LPELR-20027, this Court held thus:-
“…The law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the Court can make use of the documentary evidence in resolving the issue before it.

And there will be no need to resort to any oral evidence in such circumstances…” Per Bada, JCA (as he then was now) (pages 22-23, Paras. F-A).
See LIJADU v. LIJADU (1991) 1 NWLR (Pt. 169) Page 627 at 649; ALFA RAMONI WOMILOJU v. MADAM ABOSEDE KIKI & Anor (supra).
Furthermore, assuming that the Respondents’ Witnesses evidence under cross-examination that they signed their respective Depositions at their office and Lawyer’s Office respectively is anything to go by vis-a-vis the contention of the Appellants on this issue but conversely the Commissioner for Oaths or any Other authorized Official of the Trial Court signed and endorsed the said Depositions without the presence of the Respondents’ Witnesses, the purported actions or inactions of the Trial Court’s Official and by extension their Counsel cannot be visited upon the Respondents or their Witnesses. See CHUKWUMA OGWE & Anor v. INSPECTOR GENERAL OF POLICE & ORS. (2015) LPELR- 24322 9 (SC) per Muhammad, JSC, (Pg. 18, Paras. B –F); ADMIRAL MURTALA NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & Ors. (2016) LPELR-41822 (SC) and

ALHAJI ADAMU MAINA WAZIRI & Anor v ALHAJI IBRAHIM GEIDAM & Ors. (2016) LPELR-40660 (SC) to mention but a few.
On the case of CHIDUBEM v. EKENNA (supra) cited by the learned Counsel for the Appellants in their Brief of Argument, let me say that the case cited is good law. However, cases are decided based on their peculiar circumstances and even though the cited decision is from this Court, I dare to differ with the position of my learned Brother Kekere-Ekun, JCA (as he then was, now JSC) with the greatest humility; for the law must not be static but must evolve as the justice of each case demands. Where a law assigns a responsibility/duty on a person or an Official, he or she must discharge that responsibility to the letter without any complacency at all and must not make a party to suffer the bad consequence of his/her ineptitude or complacency which is one that is first and foremost an avoidable one.
In the instant case, the Officials of the Lower Court who were the Commissioner for Oaths or any other authorized person before whom a Witness’s Deposition is to be sworn before, apparently went ahead to endorse and stamp the said

Witnesses’ Depositions with the Court’s Official stamp without the presence of the Deponents thereby derogating/reneging from their duties and responsibilities of ensuring that Deponents appear before them before endorsing and stamping any Deposition made on Oath in compliance with the Oaths Act, 2004. These Officials of the Court may have failed to carry out their duties and it is a clear case that it would be inappropriate in the circumstance to punish or visit the inefficiency of the Court official even by extension; his Counsel on the Deponent(s) or the litigant(s).
On the whole, I agree with the learned Counsel for the Respondents that the evidential burden to prove otherwise as contended by the Appellants regarding the Depositions of the Respondents’ Witnesses (PW1, PW2 and PW3) did not shift as the Appellants did not prove by any evidence on record that the authenticity of the respective Depositions were in doubt. Since the endorsements and stamping by the Trial Court’s Officials were not in doubt, the objection to the Depositions were late in time and the evidence elicited under cross-examination were not borne out of

pleaded facts and therefore go to no issue. This Issue Number One (1) is resolved against the Appellants and in favour of the Respondents.

RESOLUTION OF ISSUE NUMBER TWO (2):
The gamut of the Appellants’ grouse on this Issue is their denial of Agency Fee Agreement with the Respondents and indeed by the pleadings and evidence of the Respondents in proof of their claim vis-a-vis the payment of part of the Agency Fee by the FCT Chapter of the 1st Appellant which the Appellants denied any knowledge of nor sanctioned same, brings the provision of SECTION 4 of the EVIDENCE ACT, 2011 cited by the Appellants in their Brief to the fore. Be that as it is, there is no doubt that from the evidence of PW1, PW2 and PW3 under cross-examination there were indeed contradictions as to the actual amount paid by the FCT Chapter of the 1st Appellant vis-a-vis the Respondents’ pleadings and/or evidence-in-chief. The Respondents’ Witnesses during cross-examination testified at pages 308, 310 and 317 of the Record of Appeal, thus:
“PW1: The FCT Council paid N2.5 Million after negotiation was paid (sic) to the Plaintiff- David Ajiya.

PW2: I don’t know how much FCT Council paid David Ajiya but I know they paid him.
PW3: I was paid N2.5 Million and additional six plots by the FCT Council.”

The above Witnesses testified in their Evidence-in-chief which are all fours with each other thus:-
“PW1: That I know that we at the FCT Chapter of the Nigeria Labour Congress paid the sum of Twelve Million, Five Hundred Thousand Naira (N12,500,000.00) only to the Plaintiff as its own share of the said fee owed the Plaintiffs. See paragraph 14 of the Witness’s Deposition.
PW2: That I then mediated between the parties for claim calm and advised the Defendants to adhere to the agreed terms of the Plaintiff’s agency as we at the FCT Chapter had paid our part of N12,500,000.00.” See paragraph 20 of the Witness’s Deposition.
PW3: That the FCT Chapter of Nigeria Labour Congress paid the sum of Twelve Million, Five Hundred Thousand Naira (N12,500,000.00) only to the Plaintiff being its own share of the said fees owed the Plaintiff.” See paragraph 16 of the Witness’s Deposition. (See Pages 199, 194 and 190 of the Record of Appeal respectively).

From the above highlighted evidence of the Respondents’ Witnesses, there is no doubt that there are obvious contradictions as to the actual amount paid by the FCT Chapter of the 1st Appellant (whether it is N2.5 Million Naira or N12.5 Million Naira only). However, from the gamut of the Appellants’ Defence/Counter-Claim, it appears to me that the issue of how much was paid by the FCT Chapter of the 1st Appellant to the Respondents over their claim for Agency Fee was never any canvassed, challenged or brought in issue between the parties at the Lower Court. Instead, what I find very interesting but disappointing is the Appellants were more inclined in canvassing whether the Respondents were duly appointed by the Appellants for the land transaction; whether an agency agreement fee ever existed between the parties and not whether N12.5 Million Naira or N2.5 Million Naira was actually paid by the FCT Chapter of the 1st Appellant.

Therefore, in the light of the foregoing, I am of the considered view which is in tandem with the Respondents’ that their evidence that the FCT Chapter paid money to the Respondents in line with

the Respondents’ Claim of Agency Fee over the land transaction cannot be distorted by any stretch of logic or reasoning as the Learned Counsel for the Appellants has tried to do by his robust and articulate submissions which even though, I commend his industry; I adopt the findings of the Learned Trial Judge on this point as can be gleaned at page 341 of the Record wherein he stated thus:-
“The submission of the Defendants’ Counsel that the Plaintiffs Witnesses contradicted themselves as to the amount paid the Plaintiff by the NLC FCT Chapter, on this I hold that it is not material contradiction as the fees paid by the said FCT Chapter of the NLC is not an issue in this case.”

The Appellants cannot be heard questioning the powers of the FCT Chapter to negotiate fees on their behalf and at the same time trying to find a contradiction as to the actual amount paid by the FCT Chapter of the 1st Appellant. That will amount to talking from two sides of their mouths. In other words, approbating and reprobating at the same time and that cannot be encouraged by this Court. See: EZULUMERI OHIAERI & Anor. v. ADINDU AKABEZE & Ors.

(1992) LPELR-2360 (SC); ADEGOKE MOTORS Ltd v. ADESANYA & Anor (1989) LPELR-94 (SC); ENGR. GODFREY EZE v. NIGERIAN AIRSPACE MANAGEMENT AGENCY & Ors (2016) LPELR-41453 (CA). As rightly pointed out by the Learned Counsel for the Respondent in their Brief, under cross-examination of the Respondents’ Witnesses there was no evidence on record negating the fact that a negotiation of Agency Fees took place between the PW1, PW2 and one Owei Lakemfa who was then Acting Secretary of the 1st Appellant over the land transaction which said land was later bought by the Appellants and FCT Chapter of the NLC.

On the whole, it is my firm view that the contradiction as to the actual amount paid by the FCT Chapter of the 1st Appellant was not the crux of the Appellants’ Defence/Counter-Claim at the Lower Court and cannot bring such issue on Appeal for any reason. The underlying issue is whether an agency agreement fee existed between the parties. Assuming that the amount which the Respondents pleaded in their Statement of Claim but later somersaulted under cross-examination to state a different amount paid them which can be seen from the above

reproduced evidence on Record before this Court, it does appear to me and I strongly agree with the view that the Appellants on record were not the proper parties to complain about the issue as to the amount which the Respondents’ Witnesses testified about under cross-examination but rather the FCT Chapter of the 1st Appellant because they were the parties which the Respondents made reference to as paying their part of the Agency Agreement Fee over the land transaction. The contention of the Appellants on this issue is baseless and unwarranted as I find no distortion or a miscarriage justice in the findings of the Lower Court to warrant an interference by this Court and consequently, the findings are hereby affirmed and Issue Number Two (2) is resolved in favour of the Respondents.

RESOLUTION OF ISSUE NUMBER THREE (3):
The law is trite that the Trial Court is indeed placed in a better position and saddled with the onerous duty of hearing and watching the demeanor of Witness(es) as they testify and thereafter place the evidence of the parties before an imaginary scale for the purpose of evaluating which of the evidence of the parties is heavier

based on the preponderance of evidence and balance of probability which is the criteria for weighing evidence in civil Suit before ascribing probative value to the evidence so adduced; thereby deciding the case in whose favour the scale of justice tilts to. See JULIUS BAYODE AYENI v. THE STATE (2016) LPELR-40105 (SC); FEDERAL REPUBLIC OF NIGERIA v. FAITH IWEKA (2011) LPELR-9350 (SC); MR. KWASI KARIKARI ADUSEI & Anor v. MR. TOYIN ADEBAYO (2012) LPELR-7844 (SC); ONYIBOR ANEKWE v. MARIA NWEKE (supra) Once that duty is satisfactorily discharged by the Trial Court, this Court and all Appellate Courts have little or nothing to do in the circumstance than to affirm the decision of the Lower Court. See JOSEPH BILLE v. THE STATE (2016) LPELR-40832 (SC). In that light, it therefore behoves on the party complaining on Appeal to show that the decision of the Lower Court is not borne out from the evidence adduced before it and that such a decision led to a perverse Judgment and a miscarriage of justice. This can only be the appropriate circumstance upon which an Appellate Court will intervene to the remedy the miscarriage of justice.MOGAJI v. ODOFIN (1978) 4 SC 91;

ODOFIN v. AYOOLA (1984) 11 SC 72; CONGRESS FOR PROGRESSIVE CHANGE v. INEC (2011) LPELR-8257 (SC); BALOGUN v. LABIRAN (supra), to mention but a few.

Relying on the foregoing statements of the law and the authorities cited, the Appellants have contended that the Respondents had the onerous task of proving that an agency relationship existed between the parties to warrant the decision of the Lower Court that they (Appellants) must pay the outstanding balance of the agency agreement fee on the land transaction which the Respondents had performed their part by sourcing for the land which the Appellants and their FCT Chapter of the 1st Appellant eventually purchased in Nassarawa State. In resolving this Issue, it would be instructive and germane to define what agency means. In a decision of this Court in MATHEW OMONIYI IDOWU v. IDOWU OLORUNFEMI & Ors. (2013) LPELR-20728 (CA); the meaning and nature of an Agency Relationship were espoused thus:-
“Agency is the relationship between two persons, one of whom expressly or implied consents that the other should represent him or act on his behalf, and the other who consents to represent the former. See

N.O.H.B. v. AJOGWU (2000) 123 NWLR (Pt. 682) 626 where FABIYI, JCA (as he then was), explained- ‘Agency has been described as a relationship where one person confides the management of some affair, to be transacted on his account, to the other. But it means more than tacit permission and involves request, instruction or command’. NIKI TOBI, JCA (as he then was) (of blessed memory) also held In N.O.H.B. v. AJOGWU(supra) that- ‘A relationship of agency is generally said to exist whenever one person called the agent has the authority to act on behalf of another called the principal and consent to… Agency is a relationship which exist between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf and the other of whom similarly consents to represent the former or so acts. The one who is to be represented or whose behalf the act is to be done is called the principal and the other who is to represent or act is called the agent.’ See also Professor Friedman’s’ definition in his book – The Law on Agency, 6th Ed.”
It is meant to indicate that although

there may be many situations in which one person represents or acts on behalf of another, it is only when such representation or action on another’s behalf affects the latter’s legal position, that is to say his right against and liabilities towards other people, that the law of agency applies. The law of agency has no relevance to social or non legal obligations. The basic idea behind the law of agency is that the law acknowledges that a person need not always do things that change his legal relations in person, and he may use the services of another person to change them or to do something during the course of which they may be changed. The long and short of it is that the law recognizes that in some circumstances, the agent can affect the principal’s legal position by certain acts which, though performed by the agent, are not really to be treated as agent’s own acts but acts of the principal- See Bowstead on Agency, 13th Ed. Where he further explained that- ‘The same idea is extended to all cases where the law regards two persons as having agreed that one shall act for the other, regardless of whether the intentions did

actually coincide in this respect; to cases where the law confers upon one person the power to act on another’s behalf as if there had been agreement… to cases where one person subsequently approves an act done on his behalf, which he has not previously authorized; and finally, to cases where the law treats a third party as entitled to regard one person as having been authorized to act as agent for another, even though nothing has occurred from which the law could draw that conclusion if the matter were in issue between the supposed agent.” PER AUGIE, JCA (as he then was, now JSC) (Pp. 22 -25, Paras. F – A). (Underlining mine for emphasis).
From the above cited and reproduced authority, I am of the considered view that it exhaustively espoused on what an agency relationship means and the circumstances under which the law will infer the existence of such relationship on the parties. This clearly can conveniently be used to x-ray and/or examine the contention of the Appellants on the issue. On whether an agency relationship does exist between the Respondents and the Appellants, it is instructive to note that this kind of

relationship can exist either impliedly or expressly wherein the agreement can be reduced into writing. From the gamut of the evidence of the Respondents, it is clear that the agency relationship was impliedly entered into between the Respondents and the Appellants through one Mr. Owei Lakemfa the Acting Secretary of the 1st Appellant as at then, Abdullahi D. Yahaya (PW1, who was the Chairman of the FCT Chapter of the 1st Appellant as at then) and I therefore do not see why or any reason(s) to be persuaded by the submissions of the Learned Counsel for the Appellants who are hinging on the fact that there was no agency relationship between the parties since the Respondents never exhibited or tendered a written agreement to that effect. Furthermore, it is my finding that the Appellants never challenged the capacities (positions) of Mr. Owei Lakemfa nor Abdullahi D. Yahaya and therefore it is not out of place and indeed, I hold strongly the view that the named persons have the capacity to enter into any agreement on behalf of the their principals as in the instant case. Their positions rightly fit the description of an Agent to the Association. The Respondents

pleaded in paragraphs 5, 6, 7 and 8 of their Statement of Claim thus and I quote:
“5. That sometimes in May, 2011, the 1st Defendant through its Members/Agent, Owei Lakemfa, Abdullahi D. Yahaya and Mohammed N. Bida approached it through its Director, David Ajiya, with a view to finding a vast parcel of land for it to purchase at Karu in Nassarawa State of Nigeria.
6. The Plaintiff states that as at the time, the 1st Defendant approached him, Owei Lakemfa was the Acting General-Secretary of the 1st Defendant while Abudllahi D. Yahaya was the Chairman, FCT Chapter of the Nigeria Labour Congress.
7. The Plaintiff states that it was to be paid five percent (5%) of the consideration sum of the land as its agency fees if the Plaintiff succeeded in getting the said land for it.
8. The Plaintiff states that pursuant to the 1st Defendant’s instructions, it procured a parcel of land measuring 151.186 hectares lying, being and situate at Kasa in Karu Local Government Area of Nassarawa State belonging to Pharm. Luka Baba Panya.”

Upon the assumption that the evidence of the Respondents’ Witnesses (PW1 and PW2)

respectively at page 309 and 316 of the Record of the Appeal are anything to reckon with wherein they testified thus:-
“As per agency, I don’t have their mandate to negotiate.
They (sic) 3 of them orally told me that I will be entitled to N12.5 Million as consideration for my services”
which the Appellants had dissipated robust arguments to contend that they did not inform the Respondents that they are entitled to the said amount of N12,500,000.00 as agency fee; that the Appellants never contacted the Respondents with respect to the Land at Ado Kasa and that PW1, PW2 or Owei Lakemfa who approached the 2nd Respondent had no authority to negotiate Agency Fee on behalf of the Appellants. It is quite worrisome that the learned Counsel to the Appellants set out this incongruous, baseless and vexatious argument when it is deducible from the Record and Exhibits tendered by the Respondents that the Appellants paid the sum of One Million Naira only via a Zenith Bank Cheque into the Appellants’ Account with Zenith Bank Plc on the 11/4/2013 (Exhibit AS 1) consequent upon the a letter dated 20th April, 2012 and signed by Chief David

Ajiya addressed to the Secretary, Nigeria Labour Congress, Headquarter, Abuja (Labour House) (EXHIBIT AS 3) with the caption:-
“REQUEST FOR THE PAYMENT OF TWELVE MILLION FIVE HUNDRED THOUSAND NAIRA (N12, 5000, 000.00) BEING 5% COMMISSION ACCRUED TO ME FROM PROCEEDS OF THE SALE OF LAND AT ADO KASSA.”

The said letter was received and endorsed by one Eustace James on the 23/4/2012 and there is no evidence by the Appellants on Record refuting receipt of the said letter from the Appellants. In furtherance of Appellants’ acknowledgement that the N1 Million was paid to the Respondents, they issued a NIGERIA LABOUR CONGRESS; Approved Expenditure Voucher in favour of DAVID AJIYA dated and signed on the 11/4/13 (EXHIBIT ES4) with the description of expenses contained therein as thus:-
“Being payment to Mr. David, being payment for Agency fee for the workers village estate.”

In the light of the foregoing findings, it would be unheard of, for the Appellants to deny any liability whatsoever of the agency fee owed the Respondents being that by virtue of EXHIBITS AS1 and ES4 respectively, the Appellants admitted the liability

of debt and there is a presumption in law in favour of the Respondents that there was an implied agency relationship between the parties and even if the Appellants have challenged that there was no authority given to PW1, PW2 and Owei Lakemfa (the then Acting Secretary of the 1st Appellant); the Appellants by their actions have sanctioned the actions taken by PW1, PW2 and Owei Lakemfa who acted as Agent of the both Appellants and the FCT Chapter of the 1st Appellant. The case of the Appellants clearly; without any rocket science or manipulation, suits the case where one person subsequently approves an act done on his behalf, which he has not previously authorized; which the law presumed forthwith that an agency relationship did exist between the parties.

Therefore, without any fear of contradiction, it is my considered view that there is nothing to show by evidence exonerating the Appellants that there was no agency relationship with the Respondents and that they are not liable to the Respondents for the claim of Twelve Million Five Hundred Thousand Naira(N12,500,000.00) only being debt owed by the Appellants as part of their agency fee for services

rendered by the Respondents in respect of the land transaction and which was eventually executed by a POWER OF ATTORNEY between Pharm. Luka Baba Panya (Donor) and NIGERIA LABOUR CONGRESS, NATIONAL HEADQUARTERS (1st Appellant) and NIGERIA LABOUR CONGRESS, FCT COUNCIL (Donee) dated 2nd Day of May, 2012 and marked EXHIBIT AS2.

The findings of the Learned Trial Judge cannot be disturbed or interfered with from the above findings and let me further add; that there was evidence to link Owei Lakemfa to the Appellants as there was no denial from the Appellants as to position he held in the 1st Appellant nor was there any evidence of imputation of fraud or wrong doings against Owei Lakemfa by the Appellants as it relates to the instructions the duo of PW1, PW2 and Owei Lakemfa gave to the Respondents to help secure a parcel of land for both the 1st Appellant and its FCT Chapter. This said instruction was carried out and there is no evidence on Record by the Appellants alleging or denying that the land which they later acquired and was executed via EXHIBIT AS2 was different from the land from which the Respondents rendered their services and are now claiming the

balance of the Agency Fee, the FCT Chapter of the NLC having fulfilled their own side of the obligation.

Furthermore, the submissions of the learned Counsel to the Appellants in Paragraph 6.13 of their Brief is vehemently discountenanced as it is found that the instruction from PW1, PW2 and Owei Lakemfa to the Respondents alter the legal position of the Appellants via EXHIBIT AS2 (pages 3 & 4) and cannot claim ignorance of the facts as it pertains to the Respondents’ Agency Fee which they (Appellants) have failed to pay. On the contention and submissions of the learned Counsel to the Appellants on the failure of the Learned Trial Judge to evaluate such piece of evidence in favour of the Appellants that there was no agency relationship between the parties in line with the incident leading to the issuance of EXHIBIT ES4 vis-à-vis the evidence of DW1 at page 226 of the Record of Appeal particularly paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 which stood un-controverted.

In my considered view this submission is unfounded that the Appellants would allege they paid the said N1,000,000. 00 (One Million Naira) only in order to stop the 2nd

Plaintiff (2nd Respondent) from constituting nuisance on the said land. One would wonder if the Appellants just go around dishing monies to anyone who constitutes nuisance on the said land. Could be that the 1st Appellant has now turned itself to Father Christmas or a Charitable Association? Certainly, it cannot be so or true. However, peradventure the answer is in the affirmative, then Nigeria workers who belong to this Association have to make a rethink as to their allegiance to the Association and the officers they elected into office. What I am therefore driving at is that the Appellants were trying to be clever by half in making such spurious assertion in a bid to deny the obvious which is established beyond doubt that there was an implied agency relationship between them and Respondents. EXHIBIT ES4 and EXHIBIT AS1 respectively were sequel to EXHIBIT AS3 (the Demand Letter) and the Appellants who have tried to deny the existence of any agency relationship overtly sanctioned the implied agency relationship which had altered their respective legal positions.

For the above reason and fuller reasons herein highlighted, this Issue Number Three (3) is

resolved against the Appellants and in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER FOUR (4):
The law is well settled that where in a civil matter there are allegations that are suggestive to have an element of crime, the party asserting that fact has the onerous burden of proof which must be beyond reasonable doubt and not on balance of probability. See RAYMOND S. DONGTOE v. CIVIL SERVICE COMMISSION, PLATEAU STATE & Ors. (2001) LPELR- 959 (SC); SYLVANUS EMEKA MADUBUIKE v. ROMANUS ELOCHUKWU MADUBUIKE (2016) LPELR- 40679 (CA); UDOM GABRIEL EMMANUEL v. UMANA OKON UMANA & Ors. (2016) LPELR- 40037 (SC). See Section 135(1)and (2) of the Evidence Act, 2011 which provides as follows:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
See further NWOBODO VS. ONOH & ORS

(1984) NSCC 1 OR (1984) SCNLR 1; A.S.E.S.A. VS. EKWENEM (2001) FWLR (PT.51) 2034 (CA).

In the instant case, the Appellants who set up a Counter-Claim and pleaded facts which were adopted by DW1 as their evidence in Paragraphs 8, 9, 15 at pages 226 and 227 of the Record of Appeal averred thus:-
“8. That the 1st Defendant after purchase of the land with its FCT Council then engaged the services of a Firm of Surveyors to do the necessary survey jobs on the land. The Surveyor immediately mobilized to site and commenced work.
9. That while the survey work was being carried out in the site, the 2nd Plaintiff threatened to disrupt work on the land and many times had led a group of hoodlums who drove away the surveyors on site on the ground that the 1st Defendant had refused to pay a purported Agency Fee.
15. That the 2nd Plaintiff massively destroyed the perimeter survey of the land, layout and beaconing worth N50,000,000.00 (Fifty Million Naira) and vowed to continue with the vandalization and to prevent the Defendants from making use of the land for the purpose acquired.”

DW1 under Cross-examination at page 319 of

the Record of Appeal testified thus in support of their Counter-Claim:
“The Plaintiff told us he would destroy the land if he was not paid the N12.5 Million; my Office reported the matter of the destruction to the police but we did not report the threat by the plaintiff to destroy it; NLC paid N1 Million to the Plaintiff to stop him from harassing and constituting nuisance to the Land.”

However, the Trial Court in its considered findings at page 342 of the Record of Appeal held thus:-
“…The Counter-Claim of the Defendants is more of a criminal allegation of mischief and as rightly submitted by Plaintiffs’ Counsel, the proof is beyond reasonable doubt. The Defendants have to prove that the 2nd Plaintiff willfully destroyed their perimeter survey, layout planning and beaconing to entitle them to aggravated damages claimed. The sole witness for the Defence is DW1 (Comrade Eustace James) who testified as follows under Cross-examination- “I have severally been to the land; I did not see the Plaintiff doing the destruction on the land” the Plaintiff told us he will destroy the land if he was not paid the

N12.5 Million. ”

In the light of the foregoing, I have examined and considered the submissions of the learned Counsel to the Appellants in paragraph 7.5 of their Brief wherein he canvassed the position that the Counter-Claim against the Respondents arose from the tortuous acts of the Respondents when they entered into the Appellants’ land at Ado Kasa and willfully carried out the destructions of the perimeter survey of the land, layout and beaconing which is a civil wrong maintainable under tort; and I am of the view that this submissions by the Counsel are very demeaning of his status and as such baseless, unfounded in view of the evidence of DW1 under cross-examination as reproduced earlier.

How can a party who is alleging wanton destruction as can be deduced from the tenor of the averments of the Appellants reproduced above which according to their estimation is worth Fifty Million Naira and their sole witness under cross-examination alluded to the fact that the destruction was reported to the Police, in turn argue that the alleged wrong was a civil wrong maintainable in tort? In any event, I do agree with findings of the Lower Court

reproduced above and same is adopted. There was clear allegation of crime against the Respondents and the law is settled that the standard of proof is beyond reasonable doubt and the burden does not shift as there is a presumption of innocence in favour of the accused until the contrary is proved. It is even more doubtful as to the veracity of the Appellants’ claim when Dw1 said that:
“My office reported the matter of the destruction to the Police but we did not report the threat by the Plaintiff to destroy it.”

Furthermore, I do not find how the evidence of PW2 under Cross-examination corroborated the Appellants’ Counter-Claim when he testified thus:
“Yes. I was approached that there was crises on the land between the workers and the 2nd Plaintiff that he is preventing workers from working on their own section of the land. Yes I intervened and told them to settle with David Ajiya.”

This is so because from the piece of evidence of PW2, he did not mention or insinuate that the Respondents through the 2nd Plaintiff (2nd Respondent) destroyed anything as the Appellants have erroneously tried to make it

look. Without any fear of contradiction, I dare say that the Learned Trial Judge who had the rare privilege of seeing, hearing and watching the demeanor of the witnesses when they testified, properly evaluated the evidence adduced and came to a sound reasoning that the Appellants did not discharge the burden of proof from which their allegation is criminal in nature and the burden of proof is beyond reasonable doubt. I am not persuaded from the Record before me to tinker on those findings. The Appellant failed to prove their Counter-Claim and same was rightly dismissed by the Lower Court.

In conclusion, after an exhaustive resolution of all the Issues in this Appeal in favour of the Respondents, I hereby state without any equivocation that this Appeal is frivolous, vexatious, unfounded and lacks merit. Consequently, this Appeal is hereby dismissed and the Judgment of the Nassarawa State High Court Holden at Mararaba-Gurku, delivered by Hon. Justice Asma’u M. Mainoma in Suit No.NDS/MG/7/2014 on the 10th February, 2017 is hereby affirmed with all its consequential Orders. Cost of N100,000.00 is awarded in favour of the Respondents against the Appellants.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Ignatius lgwe Agube, JCA, made available to me a copy of the lead Judgment in which this appeal has been dismissed. I agree with and adopt as mine the comprehensive resolution of the issues arising for determination. I will only make few comments in support.

commissioner for oaths.
In the instant case, the authenticity of the mark and stamp of the Commissioner for Oaths on the written depositions of PW1, PW2 and PW3 was not challenged. It was not in evidence that the mark and stamp of the Commissioner for Oaths on the depositions in issue were contrived. To my mind, the answer to a further query as to how the signature and stamp of the Commissioner for Oaths were ascribed on the written statement of these witnesses can only lie in the speculative realm.
Fundamentally, I do not see how a challenge to the authenticity of the signature and stamp of the Commissioner for Oaths can be successfully raised via cross examination. It is trite law that evidence elicited under cross examination can only advance the case of a party who has pleaded facts in line with the evidence; Akomolafe & Anor v. Guardian Press Ltd & Ors (2010) LPELR-366(SC); MTN v. Corporate Communication Investment Ltd (2019) LPELR-47042(SC). Therefore, if there had been a contention over the authenticity of the signature and stamp of the Commissioner for Oaths on the witness statements in issue, premised on the pleadings of the

Appellant, then the evidence of PW1, PW2 and PW3 regarding their written statements on oath, shorn of speculations, would be material.

For this reason and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, Agube, JCA, which has just been delivered. I agree with my lord’s reasoning and conclusion that the appeal lacks merit. For the reasons set out in the lead judgment, I also dismiss the appeal and abide by the consequential orders made in the lead judgment.

Appearances:

…For Appellant(s)

M.M. Hirse, Esq. with him, F.T. Kusugh, Esq. For Respondent(s)