OZDE DISTILLERIES LIMITED v. DIAMOND BANK PLC.
(2013)LCN/5995(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2013
CA/L/533/2008
RATIO
EVIDENCE: SECTION 151 OF THE EVIDENCE ACT
Section 151 of the Evidence Act 1990 provides:
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe, something to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”PER CHINWE EUGENIA IYIZOBA, J.C.A.
CLAIM: WHERE A PLAINTIFF CLAIMS MORE THAN HE CAN PROVE
It is settled law that where a plaintiff claims more than he can prove he is awarded the lesser amount proved. See Haston Nig. Ltd. V. ACB Plc (2002) 12 NWLR Part 782. P. 623.PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OZDE DISTILLERIES LIMITED Appellant(s)
AND
DIAMOND BANK PLC Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment):This is an Appeal against the judgment of Adebiyi J. of the High Court of Lagos State sitting at the Commercial Division, Tafawa Balewa Square, Lagos delivered on 31/1/08 in Suit No. LD/2483/2001 dismissing the claims of the Appellant and granting some of the reliefs sought in the Counter-Claim of the Respondent.
The Appellant who was the Claimant in the Court below by its Statement of Claim dated 19/10/01 approached the Court for the following reliefs:-
i. A declaration that by the agreement of the parties and the payment by the Plaintiff of the sum of N20, 238,892.40, it has discharged all its debt obligation to the Defendant.
ii. That detention of the Plaintiff’s security and refusal to release the same to the Plaintiff is unlawful.
iii. That the Plaintiff is entitled to various original receipts for all the monies said to have been paid on behalf of the Plaintiff by the Defendant, whether they be official government revenue collector’s receipt or receipts issued by other people for payment debited to the Plaintiff’s account, and copies of the following documents;
a. Overdraft facility agreement
b. The Plaintiff’s copy of the Floating charge over the Plaintiff’s assets.
c. Original Revenue Collector’s receipt for payment of the statutory fees such as stamp duties, registration fees for the debenture as well as receipt from the solicitor instructed by the bank.
iv. An order of Court directing the Defendant to release the said documents mentioned above to the Plaintiff forthwith.
v. An order of the Court directing the Defendant to pay the Plaintiff the sum of N3,000,000.00 (Three million naira) being general damages for fiddling with the Plaintiff’s account and unlawfully withholding the Plaintiff’s security thereby denying the Plaintiff the opportunity of using it for other business.
vi. An order of perpetual injunction restraining the Defendant whether by their servants, agents, privies and cohorts from foreclosing of the Plaintiff’s security, advertising, offering for sale or trespassing on the Plaintiff’s assets pledged as security for the loan, or in anyway dealing with the said security.
In its Statement of Defence/Counter-Claim filed on 23/1/02, the Respondent averred that the said Claimant is indebted to it in the sum of N7, 721,241.25 as at October 2001 being the outstanding balance due to it on the credit/overdraft facility granted to the Claimant and that the said Claimant has failed and or refused to pay despite repeated demands. The Respondent as Defendant Counter-Claimed as follows:-
a. N7,721,241.25 (seven Million, five hundred and twenty-one thousand, two hundred and forty-one naira, twenty-five kobo)
b. Interest on this sum at the rate of 21% per annum until judgment and thereafter at 7% till final liquidation.
c. N200, 000.00 being Solicitor’s fees incurred in defending the present action.
The Appellant as Claimant filed a reply to the Respondent’s Defence and Counterclaim on 20/3/02.
The facts giving rise to this appeal are briefly as follows: The Respondent bank granted an overdraft facility to the Appellant. The whole transaction was documented. A dispute arose between the parties when the Appellant failed to pay back the over draft as and when due. Attempts to settle the dispute eventually resulted in an agreement, Exhibit DW6 whereby a waiver of a certain amount was granted to the Appellant subject to repayment of the outstanding sum within an agreed period. The Appellant eventually repaid the discounted balance but not within the agreed period. The Appellant claimed that the Respondent by his conduct waived its right under the agreement Exhibit DW6. But the Respondent later started claiming a certain sum saying that as the Appellant failed to pay within the agreed time frame, the waiver granted it lapsed and that he was liable to pay the balance of the original outstanding sum. The Respondent refused to surrender the Appellant’s properties pledged as security for the facility hence the institution of this suit by the Appellant. The Appellant and the Respondent in proof of their respective cases called one witness each. The learned trial Judge dismissed the Appellant’s case and granted part of the Respondent’s Counter-Claim.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal with four Grounds of Appeal. In accordance with the rules of this Court, the parties filed and exchanged briefs of argument. In his brief, the Appellant formulated two issues for determination viz:-
1. Was the learned trial Judge right in holding that Estoppel as raised by the Appellant and in the decision of the Supreme Court in Abalogu V. SPDC (2003) 12 NWLR (Pt. 837) 308 does not apply to this case.
2. Was the learned trial Judge right in entering judgment in favour of the Respondent in the sum of N3, 031,646.02 despite holding in another breath that the Respondent was not able to prove its Counter-Claim of N7, 721,241.25 and the said judgment sum of N3,031,646.02 not being claimed by the Respondent nor any evidence led in proof thereof.
In its own brief of argument, the Respondent adopted the issues formulated by the Appellant but more succintly framed thus:
1. Did the trial Court rightly review and evaluate all the evidence before it in making a finding that estoppel by conduct is inapplicable in this case.
2. Can a trial Court enter judgment for a lesser sum established by the evidence before it?
Issue one
Was the learned trial Judge right in holding that Estoppel as raised by the Appellant and in the decision of the Supreme Court in Abalogu V. SPDC (2003) 12 NWLR (Pt. 837) 308 does not apply to this case.
APPELLANT’S ARGUMENTS:
Learned Counsel for the Appellant O. Enyindah Esq. on issue 1, submitted that the lower court misdirected itself when it held that the principle of law with regard to estoppel by conduct which was considered in the case of Abalogu v. SPDC (2003) 13 NWLR (Pt. 837) 313 did not apply to this case. Counsel submitted that notwithstanding the agreement contained in Exhibit DW6, the conduct of the Respondent and incidents connected therewith gave the Appellant the strong impression that the Respondent had waived the condition contained in Exhibit DW6. Learned Counsel gave particulars to include the fact that the Respondent received the payments made after the expiration of the time agreed without comment, protest or objection; the fact that statements of account were issued during the interval payments were made up until September 2000 when the last payment was made and that as at 15/5/01, the closing balance in the account was zero. Counsel contended that the conduct of the Respondent and these incidents led to the strong belief by the Appellant that the Respondent had waived the matter of reverting to the full payment and that within the spirit and letter of Section 151 of the Evidence Act, the Respondent is estopped from disclaiming the waiver. Counsel relied on the cases of OBAYAN V. UNILORIN (2005) 15 NWLR (Pt. 947) 123 @ 146-147; DIAMOND BANK LTD V. UGOCHUKWU (2008) 1NWLR (Pt. 1067)1.
RESPONDENT’S ARGUMENTS:
In response to the above arguments of the Appellant, learned Counsel for the Respondent, Chidi Anya Esq. submitted that the learned trial Judge made correct findings that the terms of the agreement were spelt out in the Defendant’s letter Exhibit DW6 and that the Appellant did not pay back the money as agreed in the Exhibit. Further that there was an offer, acceptance and consideration giving rise to a binding contract. The parties are consequently bound by the terms of their contract and the Court is also bound to give effect to the contract between the parties. Counsel called in aid the case of DPMS LTD V. LARMIE (2005) 5 NWLR (Pt. 655) 138. Counsel submitted that the learned trial Judge properly evaluated the evidence led by the parties and made correct findings of facts based on the evidence. The findings not being in any way perverse cannot be reviewed by the appellate Court. Counsel relied on several authorities including Yaro V. Arewa (2007) 7 NWLR (Pt 1063) 333 @ 373 C-D; Amadi V. Chinda & 6 Ors (2009) 4 – 5 SC (Pt.11)1.
RESOLUTION OF ISSUE ONE
Section 151 of the Evidence Act 1990 provides:
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe, something to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
The above is at it were the definition of estoppel in the Evidence Act. This definition was reproduced in the case of Abalogu v. SPDC Ltd (supra). In that case, the appointment of the appellant was terminated by his company, Shell eight months before he was due for retirement but in accordance with his contract of employment. Before the termination, Shell had written a letter to the Appellant Exhibit N discussing matters pertaining to his retirement on the attainment of 55 years on 3/8/96. The Appellant in his suit claiming inter alia for a declaration that the letter terminating his appointment was null and void contended that by the earlier letter Exhibit N, the Respondent (Shell) was estopped from determining his employment. The Appellant relied on the plea of estoppel in pais and the provision of Section 151 of the Evidence Act, 1990. Iguh JSC in delivering the lead judgment of the Supreme Court observed:
“In the present case, it is enough to state that there are no facts constituting estoppel in pais or estoppel under Section 151 of the Evidence Act for application in favour of the appellant. No doubt, it is now well settled that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party had taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations as modified by himself, even though it is not supported in point of law by any consideration, but only by his word. See Combe v. Combe (1951) 1 All E.R. 767 @ 770 per Denning, L.J. as he then was. See too Tika Tore Press Ltd. V. Ajibade Abina and others (1973) 1 All NLR (Pt. 11) 244 at 253. In this case, there is absolutely no where in exhibit N that the Respondent promised, assured or gave any guarantee to the Appellant that he would remain in its employment until he reached the retirement age of 55 years. It is plain to me that no estoppel applies against the Respondent in the present case to stop it from exercising its rights under clause 9 of exhibit D.”
In the appeal before us, by exhibit DW6, a valid contract was created between the parties that the Appellant if he paid the reduced amount within the stated period would be released from his indebtedness to the Respondent. There was offer, acceptance and consideration. It is not in dispute that the Appellant did not pay all of the money within the agreed time. The learned Judge in his judgment at page 102 observed:
“The Court finds from the evidence before it that the testimony of the 1st PW and the 1st DW under cross-examination that the Claimant paid the sum of N15 million only within the period contained in the agreement between the parties and failed to pay the outstanding balance within the 3 three months, i.e. end of March 2000. The Court finds that the Claimant paid the sum of N2.5 million, N2 million and N732, 000 in addition to the N15 million paid but that these payments were made after March 2000. The Court therefore finds that the Claimant failed to prove that it discharged its obligations to the Defendant within the time limited in the concession agreement which formed the contract between the parties.”
The fact that the Appellant did not pay all the money as agreed is not in dispute. The contention of the Appellant is that by its conduct, the Respondent waived the right to revert back to the original amount owed. The particulars given by the Appellant as basis for the assumption of the waiver are the fact that the Respondent received the payments made after the expiration of the time agreed without comment, protest or objection; the fact that statements of account were issued during the interval payments were made up until September 2000 when the last payment was made and that as at 15/5/01, the closing balance in the account was zero. With all due respect to learned Counsel for the Appellant none of these facts can be said to amount to a waiver. The Respondent did not make any promise or give any guarantee to the Appellant that it would waive its right under the agreement. The Appellant simply assumed without any basis for the assumption that the Respondent waived his right under the agreement. Why would the Respondent protest that payment is made belatedly. Of course he would receive the money first and then protest later as he obviously did. It is indeed the Appellant who knew he was in breach that should have insisted on opening further discussion to be sure that the waiver still stands before making any further payment out of time. The Respondent did exactly what any bank would do in the circumstances – watch and see if the debtor would finish paying even if out of time. Once the money is in the hands of the bank, they would then go for the balance outstanding on the original figure based on the failure to pay within the time agreed. There are certainly no facts constituting estoppel in the case. The facts of Abalogu v. SPDC Ltd (supra) in which the Appellant placed heavy reliance do not support his case. The case is in fact proof that estoppel is inapplicable to the facts of the Appellant’s case. In the case of Obayan v. UNILORIN (Supra), the Court of Appeal, Ilorin division held that the Respondent who allowed the Appellant a reader in the University to resume work after over-staying in her study leave without permission was estopped by their conduct from claiming that the Appellant had ceased to be an employee from the date she should have resumed work. The facts are again quite inapposite to the present appeal. Certain definite actions were taken by the Respondent in Obayan v. UNILORIN. Nothing in the instant case was done by the Respondent to undermine their rights under exhibit DW6. They simply did not take any action until they had gotten their money from the Appellant. The case of Diamond Bank Ltd v. Ugochukwu (supra) is also inapposite. The learned trial Judge was correct in his finding that estoppel was inapplicable and that the Appellant’s reliance on the case of Abalogu v. SPDC Ltd (supra) was misplaced. Issue one is resolved against the Appellant.
ISSUE TWO
Was the learned trial Judge right in entering judgment in favour of the Respondent in the sum of N3, 031,646.02 despite holding in another breath that the Respondent was not able to prove its Counter-Claim of N7, 721,241.25 and the said judgment sum of N3,031,646.02 not being claimed by the Respondent nor any evidence led in proof thereof.
APPELLANT’S ARGUMENTS:
On issue two, Mr. Enyindah submitted relying on the case of Awoniyi v. Registered Trustees of Amorc (2000) 10 NWLR (Pt. 676) 522 that the judgment sum of N3,031,646.02 awarded the Respondent by the trial Judge was a Christmas gift as the Respondent never asked for it in the pleadings. Learned Counsel submitted that exhibit PW29 was produced by the Respondent and delivered to the Appellant to show the standing of the Appellant’s account for the period February 2000 to 15/5/01; that exhibit PW29 showed a closing balance of zero as at 15/5/01 and that no evidence was placed before the trial Judge by the Respondent to justify its claim that the account was erroneous. Counsel submitted that having reached the conclusion that the Respondent could not prove its Counter-Claim, the trial Judge should have dismissed the Counter-Claim instead of descending into the arena to set up a claim for the Respondent for the sum of N3, 031,646.02 which was neither pleaded in the Statement of Defence nor averred in the Counter-Claim. Counsel relied on Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158 @ 225-226. Counsel contended that the case of Haston Nigeria Ltd v. ACB PLC (2002) 12 NWLR (Pt. 782) 623 relied on by the trial judge was inapplicable. It was further contended that the statement of account dated 31/7/2000 relied upon by the Court in awarding the Respondent the sum of N3, 031,646.02 was produced after the commencement of the suit. Counsel finally submitted that the award was perverse having no basis on which it rests. He urged the Court to dismiss the judgment of the lower Court.
RESPONDENT’S ARGUMENTS:
Mr. Chidi Anya in the Respondent’s brief rephrased issue two thus: “Can a trial court enter judgment for a lesser sum established by the evidence before it?” Counsel submitted that it is trite that a Court may grant less but not more than what was claimed if there is evidence in support of the lesser claim. Counsel further submitted that the Respondent was able to prove that the Appellant owed it the sum of N3, 031,646.32 as at 31/7/2000 and that the learned trial Judge was right in entering judgment for the lesser sum. Counsel called in aid the following cases: AG (Fed) v. AIC Ltd (2000) 6 SC (Pt. 1) 175 @ 182; Hatson Nig. Ltd v. ACB Plc (supra). He urged the Court to dismiss the appeal in its entirety as the Appellant has refused to honour its obligations under a contract it voluntarily entered into.
RESOLUTION OF ISSUE TWO
This issue was dealt with by the learned trial Judge in his judgment as issue no. 5 at page 106 of the record of appeal. I think it is better to reproduce in extensio that part of the judgment:
“The Defendant’s claim is for N7, 741,241.25k plus interest and N200, 000.00 solicitor’s fees. The 1st DW stated in his testimony that as at 1st October 2001 the date of the commencement of the action the amount outstanding to the claimant’s account was N7, 741,241.25k. He tendered in evidence a statement of account which was admitted as Exhibit DW7. The said Exhibit DW7 is the statement of account with the Defendant from 1st June 1992 – 31st July 2000 and not from 1st June 1992 – 3rd October 2002 as indicated in the cover of the statement. It shows an outstanding debit of N3, 031,646.32 as at 31/7/2000 on account no. 240067013. Also attached is an account for debit interest from 7th August 2000 to 6th March 2001 showing a balance of 0.00 as at 6th March 2001. The said statements of account do not support the testimony of the 1st DW and the Defendant’s pleadings that the sum of N7,721,241.25 is outstanding in the claimant’s account.
The claimant in its defence to the Counter-Claim denied the Counter-Claim and averred that they received a statement of account which reflected the state of their account with the Defendant. The 1st PW tendered in evidence several statements of account which were admitted and marked Exhibits PW 29. The statements of account spanned the period from February 2000 to 15th May 2001. The statement showed that as at the latest date 15th May 2001 the closing balance on the claimant’s account was zero after the claimant made a payment of about N700, 000.00. The 1st PW under cross-examination admitted that the statement of account covered the period after the agreement contained in Exhibit PW16 (DW6) was made.
The 1st DW in his testimony stated that the said statement of account was erroneous and that the claimant was aware of this. He stated that the concession was added back to the customer’s account when the claimant failed to meet the terms of the concession as contained in Exhibit DW6. The concession contained therein was N4, 699,392.51. The Court finds the testimony of the 1st DW that the statement of account, Exhibit PW 29 contained errors to be believable in the circumstances.
The Court also finds that the Defendant failed to place any evidence before it to support the ipsi dixit testimony of the 1st DW that the sum of N7, 721,241.25 is outstanding on the claimant’s account as at 1st October 2001. The defendants were only able to prove the outstanding sum of N3, 031,646.32 as at 31/7/2000.
It is settled law that where a plaintiff claims more than he can prove he is awarded the lesser amount proved. See Haston Nig. Ltd. V. ACB Plc (2002) 12 NWLR Part 782. P. 623.
In the instant case the Court holds that the Defendant Counter-Claimant was only able to prove that the Defendant to the Counter-Claim was owing it the sum of N3, 031,646.32 only as at 31/7/2000. The Court finds that the issue of estoppel raised by the learned Counsel to the claimants and his reliance on Abalogu V SPDC (2003) 13 NWLR part 837 p. 313 is inapplicable to the instant case as the issue of reverting to full payment was contained in the concession agreement between the parties (exhibit DW6).”
The reasoning of the learned trial Judge as set out above in my view cannot be faulted. It is quite obvious that the Appellant’s consideration of the matter was clouded by his reluctance to accept that the concession granted it in the agreement DW6 became abrogated when he failed to repay the sum within the agreed time. Hanging on to a statement of account which put his indebtedness at zero when the concession was still on is of no use. I am of the view that the learned trial Judge’s evaluation of the evidence led is unassailable. Clearly the Respondent was unable to adduce evidence to back his claim of over seven million naira, but from the statement of account tendered, there was evidence that as at 31/7/00, with the cancellation of the concession, the indebtedness stood at N3, 031,646.32k. The Appellant is consequently wrong in his contention that there was no evidence in support of the amount awarded the Respondent. The law is trite that where a Plaintiff claims more than he can prove, he is awarded a lesser amount. See Haston (Nig.) Ltd v. A.C.B. Plc (supra). Contrary to the contention of the Appellant, this trite principle of law is not confined to claims for interest only. As long as there is evidence in proof of the lesser amount, the Court will grant it in place of the higher amount claimed. This does not turn the court into Father Christmas. The case of Awoniyi v. Reg. Trustees of Amorc (supra) cited by the Appellant is not apposite as the award of the learned trial Judge is clearly not “manna from heaven”. There was evidence in support.
Issue two is also resolved against the Appellant.
In the final result, I hold that this Appeal lacks merit. It is hereby dismissed. The judgment of Adebiyi J. in suit no. LD/2483/2001 delivered on the 31st day of January 2008 is affirmed with costs assessed at N40,000.00 in favour of the Respondent.
AMINA ADAMU AUGIE, J.C.A.: I have read in draft the lead judgment just delivered by learned brother, Iyizoba, JCA and I agree with him that the Appeal lacks merit. Estoppel is a multifaceted subject, and it is defined as “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true; a bar that prevents the re-litigation of issues” – see Black’s Law Dictionary, 9th Ed. “Estoppel”, says Lord Coke “cometh of the French word estoupe, from when the English word stopped; it is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closeth his mouth to allege or plead the truth” – see same Black’s Law Dictionary.
But the best description is that by Lord Denning in Mcllkenny v. Chief Constable of West Midlands Police Force & Anor. (1980) 2 All ER 227 –
“From that simple origin there has been built up over the centuries in our law a big house with many rooms, it is the house called Estoppel. In Coke’s time it was a small house with only three rooms, namely, estoppels by matter of record, by matter in writing, and by matter “in pais”. But by our time we have so many rooms, that we are apt to get confused between them. Estopppel per rem judicatam, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel and goodness knows what else. These several rooms have this much in common; they are all under one roof. Someone is stopped from saying something or other, or contesting something or the other. But each room is used differently from the others. If you go into one room, you will find a notice saying “ESTOPPEL IS ONLY A RULE OR EVIDENCE”. If you go into another room you will find a different notice. “ESTOPPEL CAN GIVE RISE TO A CAUSE OF ACTION”. Each room has its own separate notice. It is a mistake to suppose that what you find in one room you will also find in the others.”
Waiver is the voluntary relinquishment or abandonment of a legal right or advantage – See Black’s Law Dictionary, 9th Ed. where it was explained that –
“Waiver is often inexactly defined as “the voluntary relinquishment of a known right”. When the waiver is reinforced by reliance, enforcement is often said to rest on estoppel. Since the common definition of estoppel is limited to reliance on a misrepresentation of an existing fact, reliance on a waiver or promise as to the future is sometimes said to create a “promissory estoppel”.
In this case, the Appellant contends that the Respondent, by its conduct, waived the right to revert back to the original amount owed since it received the payments made after the expiration of the time agreed by the parties, without comment, protest or objection; and the closing balance in the account as at 15/5/01 was zero. In arguing as it did, the Appellant appears to have lost sight of the nitty-gritty of the situation, which is that it was granted a waiver of a certain amount of money owed to the Respondent, subject to repayment of the outstanding balance within an agreed period. However, the Appellant did not repay the discounted balance within the agreed period, which, no doubt, changed the complexion of the agreement between the parties in that regard.
Obviously, estoppel cannot find any room here, and the lower Court was right to find that it was inapplicable to this case, and to hold that the Appellant “failed to prove that it discharged its obligations… within the time limited in the concession agreement, which formed the contract between the parties.”
It is for this and the other reasons in the lead Judgment, which I adopt, that I also dismiss the Appeal for lacking in merit. I abide by the consequential orders in the lead judgment, including the order as to costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading Judgment which my Lord, Iyizoba JCA, just delivered now. I agree with the reasoning and conclusion. This contribution is limited only to the findings of the lower Court with respect to issue one on the terms of the agreement between the parties.
Learned Counsel for the Appellant canvassed the view that notwithstanding the agreement contained in exhibit DW6, the conduct of the Respondent and incidents connected thereiwht gave the Appellant the strong impression that the Respondent had waived the conditions contained in exhibit DW6. On his part, Counsel for the Respondent contended that the lower Court made correct findings that the terms of the agreement were spelt out in the Defendant’s letter, exhibit DW6 and that the Appellant did not refund the money as agreement in the exhibit.
I entirely, endorse the above submission of Counsel for the Respondent. There are certain advantage which the lower Court enjoys which are not available to this Court. It saw the witnesses. It heard them. It watched their demeanour. It evaluated their viva voce testimonies, believing some and disbelieving others, CBN v. Archibong (2001) 10 NWLR (Pt.721) 492; Okeno v. Obanebira (1999) 13 NWLR (Pt.636) 535; Umoru v. Zibiri (2003) 11 NWLR (pt.832) 647; Momoh v. CBN (2007) 14 NWLR (Pt.1055) 504. In Nnorom v. Ezeani (2001) 2 SC 143, 147 – 148, Iguh JSC opined that:
It is beyond dispute that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial which saw, heard and assessed the witness, citing Akinloye v. Eyiyola (1968) NMLR 92, 95. The only exceptions are where the issue in controversy between the parties is simply a matter of inference that could be drawn from established facts on records, not resting on the credibility of witnesses as a result of their demeanour in court or of the impression of them by the trial Court. Clearly where such exceptions exist and an appellate court is in as good a position as the trial court to evaluate the evidence which has been given in a case, the appellate court must not hesitate to evaluate such evidence and make the necessary irresistible inference that can be drawn from proved facts.
See, also, Olorunfemi v. Asho (1999) 1 SC 55, 60; Olohunde v Adeyolu (2000) 6 SC (Pt.111) 118, 134.
Against the above background, I find no justification for disturbing the lower Court’s findings on page 102 of the record. For these reasons, and the more detailed reasons in the leading Judgment, I abide by its conclusion that this Appeal is unmeritorious. I, too, hereby, enter an order dismissing it.
Appeal dismissed.
Appearances
O. ENYINDAH ESQ. with A. ADEWUSI (MISS)For Appellant
AND
CHIDI ANYA ESQ. with NELSON O. ESQ. and L. OKOCHI (MISS)For Respondent
