PADRISON & ANOR v. LUCKY (2020)

PADRISON & ANOR v. LUCKY

(2020)LCN/15425(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, November 03, 2020

CA/YL/137/2019

RATIO

EVIDENCE: EFFECT OF THE FAILURE OF AN ADVERSARY TO CROSS-EXAMINE A WITNESS

CIVIL PROCEEDING: BURDEN OF PROOF

In civil cases, the burden of proof is on the party who asserts a fact to prove same. The standard of proof is on a preponderance of evidence and balance of probabilities. See Section 131 of the Evidence Act 2011 and Daodu v. N.N.P.C. (1998) 2 NWLR (Pt. 538) 355. A party must prove its case on credible evidence of its witnesses. See Elias v. Omo-Bare (1982) 5 SC 25. PER JAMES SHEHU ABIRIYI, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. ZUNANGA PADRISON 2. PADRISON ZIPTI APPELANT(S)

And

BIFAM LUCKY RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 21st January, 2019 in the High Court of Adamawa State holden at Yola. In the High Court (the Court below), the Appellants were the Defendants. The Respondent was the plaintiff.

The claim of the Respondent against the Appellants was for special and general damages for falsely and deliberately misrepresenting or crediting to the Respondent the paternity of a child which he admitted but later denied by the Appellants by reason of which he suffered untold damages. In the alternative, the Respondent claimed general damages for untold hardship, psychological trauma, inconvenience, ridicule, odium and embarrassment for being given false hope, filing fees and costs of litigation.

The case of the Respondent in the Court below in a resume is that the 1st Appellant who is daughter of the 2nd Appellant alleged that he impregnated her. He did not object and accepted responsibility for the pregnancy. 1st Appellant gave birth to a baby girl. He named the baby Gift.

1st Appellant took him before the social welfare office for maintenance of the baby and later to the Magistrate Court. The baby was born out of wedlock. The welfare office asked him to give five hundred (N500) Naira monthly for the maintenance of the child and the Magistrate Court increased it to One Thousand (N1000) Naira monthly. The 2nd Appellant sued the Respondent at the Area Court Numan claiming Thirty Thousand (N30,000) Naira as damages in favour of the 1st Appellant.

When he asked for the custody of the child in 2011, the Appellants refused to give him custody of the child. So the Respondent reported the Appellants to their relations. A meeting was held. At the meeting, the 1st Appellant maintained that the child was that of the Respondent. At a subsequent meeting, the 1st Appellant said the Respondent was not the biological father of the child.

The 1st Appellant stated in her written statement on oath that she told her parents that it was the Respondent that was responsible for her pregnancy. That she took the Respondent to the Welfare office and it was the Respondent’s failure to keep to his promise at the welfare office that made her to institute an action in the Magistrate Court. That no kobo was given to her in respect of the case at the Magistrate Court. In the meantime her conscience was troubling her so she took the child to the real father Skima Ayuba.

She denied that the Respondent suffered any untold hardship, psychological trauma, inconvenience, ridicule, odium and embarrassment in any way. Rather, she was the one that went through all these as a result of the deceit of the Respondent and his breach of promise to marry her.

In his defence, the 2nd Appellant said that 1st Appellant told him that the Respondent was responsible for her pregnancy. She also told him that the Respondent was not doing anything about his responsibilities so he had to seek redress since he was the person taking care of the pregnancy. So he sued the Respondent and claimed damages before Numan Area Court.
He did not have the capacity to give custody of the child to the Respondent.

After considering the evidence led and addresses of learned counsel, the Court below in a considered decision entered judgment in favour of the Respondent and against the Appellants. The Appellants have proceeded to this Court by a notice of appeal dated and filed on 18th March, 2019. The notice of appeal contains three (3) grounds of appeal. From the three grounds of appeal, the Appellants in their brief of argument dated 12th February, 2020 but filed on 13th February, 2020 presented the following issues for determination:
1. Whether the trial Court was right to have entered Judgment against the 2nd Appellant when his liability both special and general damages was never established (Ground 2 of Grounds of Appeal).
2. Whether the Plaintiff was able to prove his claimed(sic) to entitle him to damages and special damages.

The Respondent in the Respondent’s brief dated and filed on 15th April, 2020 formulated the following lone issue for determination:
Whether the learned trial judge was right when he entered judgment against the Appellant for special and general damages having regards to the pleadings, oral and documentary evidence. (Distilled from grounds 2 and 3 of the Notice of Appeal.

In the Appellants’ brief which was deemed by the Court duly argued under Order 19 Rule 9(4) of the Rules of this Court; the Appellants on issue 1 referred the Court to portions of the judgment of the Court below at pages 124 and 122 of the record of appeal, Common Law Library on Tort (No.3) 10th Edition Chapter 14 of Clerk And Linsel, Monier Const. Co. (Nig.) Ltd v. Lumenze (2008) All FWLR (Pt. 429) 620 and Law of Tort by Ese Malami.

It was contended that before the 2nd Appellant took the Respondent before the Area Court for maintenance, the Respondent had admitted responsibility for the pregnancy of the 2nd Appellant’s daughter. He referred the Court to page 107 of the record. That all along, it was not disclosed to the 2nd Appellant that the Respondent was not responsible for the pregnancy of the 1st Appellant and that the 2nd Appellant did what a responsible father would do to protect the 1st Appellant and subsequently the baby.

The Respondent, it was contended, acted as if the pregnancy was his own. That the 2nd Appellant also approached the Respondent in good faith without the knowledge that the Respondent was not responsible for the 1st Appellant’s pregnancy. It was submitted that one of the requirements for deceit is that the presentation must be made with knowledge that it is false or may be false. The Court was referred to Winfield & Jolowicz on Tort 17th Edition page 478.

It was submitted that the 2nd Appellant on realizing that the Respondent was not responsible for the pregnancy disclosed this to the Respondent and the Respondent insisted that the child was his own. The Court was referred to evidence of the 2nd Appellant under cross examination at page 108 of the record.
It was submitted that the 2nd Appellant was not liable to the Respondent on the evidence led.

On issue 2, Appellants adopted their arguments on issue 1 for this issue and also referred to the case of Monier Const. Co. (Nig.) Ltd v. Lumenze (supra). The Court was referred to the evidence of 1st Appellant that it was one Skima Ayuba who impregnated her but the Respondent told her to tell her parents that he (Respondent) was responsible for the pregnancy so that he would do all that was required by their custom and tradition to marry her. The 1st Appellant, it was submitted, was not cross examined on her evidence. This, it was submitted, shows that the issue of the pregnancy was an arrangement masterminded by the Respondent and accepted by the 1st Appellant. On the effect of unchallenged evidence, the Court was referred to Henshaw v. Effanga (2009) 11 NWLR (Pt. 1151) 72.

Appellants argued further that the issue of abortion and or presenting it as if the Respondent was responsible and if the arrangement worked out the Respondent would marry the 1st Appellant was pleaded by the Appellant and the Respondent did not reply. The Respondent, it was submitted, is deemed to have admitted those facts. The Court was referred to Philips V. Eba Odan Comm. Ind. Ltd (2012) All FWLR (Pt. 650) 1254. Having failed to controvert the issue of the arranged pregnancy, it was submitted, it cannot be said that the Respondent had proved the tort of deceit to entitle him to the damages claimed.

Respondent’s counsel submitted that from Exhibits A-B1, coupled with the testimony of the Respondent, the Respondent’s claim was established. The Court was referred to Dickson V. Sylva & Ors (2017) Vol. 226 LRCN. The Court was referred to the evidence of DW2 at page 109 of the record where she stated thus; “Yes I took him to Social Welfare even though I knew that he was not responsible for my pregnancy.”

It was submitted that what is admitted need no further proof. The Court was referred to Ali v. Albishir (2008) All FWLR (Pt. 415) 1681 at 1727.
It was submitted that the Respondent acted upon the conduct of the Appellants and suffered damages.

In conclusion, it was submitted that the damages claimed were as a result of direct and probable action of the Appellants who ascribed paternity of the child to the Respondent by suing him in various Courts and yet denied him of the paternity of the child.

The only issue for determination is whether on the pleadings and evidence adduced, the Court below rightly entered judgment in favour of the Respondent.

Learned counsel for the Appellants contended that the Respondent failed to reply to the averments in the joint statement of defence to the effect that the Respondent asked the 1st Appellant to claim that he (Respondent) was responsible for her pregnancy so that he would marry her. It was submitted that the failure to reply to these averments means that the averments are deemed admitted. Where the plaintiff merely wishes to deny the allegation in the defence, no reply is needed and none should be served for if no reply is served there is an implied joinder of issue on the defence. See Olubodun & Ors v. Lawal & Anor (2008) LPELR – 2609 SC. In the instant case, the Appellants’ defence was in my view a joinder of issues. A reply was not needed in the circumstances.

It is trite law that where the adversary fails to cross examine a witness upon a particular matter the implication is that he accepts the truth of the matter as led in evidence. See Oforlete v. The State (2000) LPELR – 2270 SC, Isah v. State (2017) LPELR – 43472 SC and Ewugba v. State (2017) LPELR 43833 SC. The 1st Appellant was not cross-examined on her damning evidence against the Respondent. In her written statement on oath, the DW2 stated that at the time the Respondent wanted to have sexual intercourse with her, she told him that she was already pregnant for Skima Ayuba who the Respondent knew. The Respondent used to meet the 1st Appellant and her boyfriend Skima Ayuba before the latter proceeded on his Youth Service. When the Respondent heard that she was pregnant for Skima Ayuba, he told her to abort the baby. She refused. The Respondent, then told her to tell her parents that he (Respondent) was responsible for the pregnancy so that he would do all that is required by their custom and tradition to marry her. That was why she told her parents that the Respondent was responsible for her pregnancy. About two months after when the pregnancy started becoming obvious, the Respondent changed his attitude towards her. The Respondent, she stated did not suffer any untold hardship, psychological trauma, inconvenience, ridicule, odium and embarrassment in any way rather she was the person that suffered all these as a result of the deceit by the Respondent and his breach of promise to marry her. As the DW2 was not cross examined on the above evidence, the implication is that the Respondent accepted her evidence as true.

The evidence clearly shows that the Respondent knew before the pregnancy was two months old that he was not responsible for the pregnancy. That explains why he was reluctant or even refused to cater for the baby and mother despite the fact that he was taken before the social welfare officers and the Magistrate. Inspite of this, he only managed to give the mother N8,500 in several installments. That is also the reason why he only referred the matter of the paternity of child to 1st Appellant’s relations in 2013 even though the child was born in 2001. It is instructive to note that he has also not sought custody of the child in Court.

It is clear from the evidence of DW2 summarized above, that the issue of the pregnancy was masterminded by the Respondent and accepted by the 1st Appellant as rightly pointed out by learned counsel for the Appellants. There is no evidence that the Respondent suffered from any conduct of the Appellants as contended by the learned counsel for the Respondent. Rather, it was the Respondent who went out on an adventure, arranged to have unhindered access to the 1st Appellant and the 1st Appellant gave in to his love adventure when the person who was responsible for the pregnancy was far away in Zamfara State. The Respondent was being merely mischievous when he went before the 1st Appellant’s relations and claimed that the child was his own about twelve years after the birth of the baby. He was also being more mischievous and daring when he went to Court claiming to have suffered psychological trauma, embarrassment etc.

The Court below erred when it refused to believe the evidence of the DW2 which was not challenged under cross-examination. There was no basis for refusing to believe her evidence.

It is clear from all that I have stated in this judgment that the only issue for determination should be resolved in favour of the Appellants and against the Respondent. It is accordingly resolved in favour of the Appellants and against the Respondent. The appeal is allowed. The judgment of the Court below is hereby set aside.
Appellants are awarded N100,000 costs which shall be paid by the Respondent

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother James Shehu Abiriyi JCA. I agree with the decision arrived at in allowing the appeal. I abide by all the orders made in the judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Appellants absent though served through their counsel C. K. Aliman, Esq. For Appellant(s)

G. L. Bako, Esq. For Respondent(s)