SIMON KAJO V. BENUE CEMENT COMPANY PLC
(2013)LCN/6062(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2013
CA/J/173/2005
RATIO
“Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case/ an Appeal Court will be left with no option but to affirm such a decision. See Osuji V. Ekeocha (2009) 39 NSCQR 563; Wulochem V. Gudi (1981) 5-7 SC 291,; Ebba V. Ogodo (1984) 1 SCNLR 372; Ibodo V. Enorofia (1980) 5 SC 42.” Per MSHELIA. J.C.A
Justices
JA’ AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
SIMON KAJO Appellant(s)
AND
BENUE CEMENT COMPANY PLC. Respondent(s)
ADZIRA GANA MSHELIA. J.C.A, (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Benue State sitting at Gboko Judicial Division delivered by Ikyegh J. on the 28th day of March 2003.
The brief facts leading to this appeal are as stated by the appellant. The appellant herein was employed by the respondent as a messenger on 01/01/1987. He rose through the ranks to the position of sales clerk in 1995, when he was subsequently posted to respondent company’s satellite cement depot at Vandeikya town in Benue state. His duties as sales clerk included recording of authority to pay and authority to collect cement consignments sent to the depot from respondent company’s head office, at Gboko, Benue State and preparation of sales summary of all sales transaction of respondent company at the said satellite depot. On the 17/03/1995, the store keeper of the respondent company serving at the Vandeikya depot received a consignment of 30 tones (600) bags of cement from the respondent company’s head office and acknowledged receipt per invoice voucher Exhibit ‘A’ dated 17/03/1995 indicating that 503 full bags of cement and 97 breakages were received. After some months, the appellant received an invoice debit voucher (Exhibit B) from the respondent company commanding him to pay the sum of two hundred and seventy thousand naira (270,000) to the respondent company being the value of the 600 bags of cement mentioned in Exhibit ‘A’ which he allegedly diverted. The respondent company thereafter started deducting the sum of one thousand five hundred naira (1,500.00) from the monthly emoluments of the appellant for the purpose of recovering the amount of two hundred and seventy thousand naira (270,000.00) mentioned in Exhibit ‘B’. The appellant protested vide Exhibit ‘C’ dated 02/11/95 and Exhibit ‘H’ dated 25/08/99 but to no avail, Rather the respondent company stopped paying his entire monthly emoluments from August, 2000. The appellant sued the respondent at the high court of justice. While the matter was before the court the respondent company suspended the appellant from work. The appellant amended his statement of claim and challenged his suspension from work by the respondent company while the matter was in court. The reliefs sought as per the amended statement of claim dated 24th day of April, 2000 are as follows:-
a. A declaration that all the deductions made from the salaries of the plaintiff from the month of October, 1995 and the non-payment of the plaintiff’s salary for August 2000 till date had/has no basis nor justification and thereby illegal and void. And that the purported, letter of indefinite suspension of the plaintiff without pay by the defendant is not only contemptuous and disrespectful to court, but goes to no issue as it is void.
b. The sum of N87 000.00 representing N1,500.00 deducted every month from the salary of the plaintiff starting from the month of October, 1995 to the month of July, 2000. And the sum of N9,258,50 in the month of August, 2000 and N4,204,60 starting from the month of September, 2000 to December, 2000 and the sum of N6,639.50 starting from January, 2001 till the determination of this suit and thereafter till the sum is liquidated, representing the plaintiff’s monthly salary.”
c. The sum of N1,000,000.00 general damages
The case proceeded to trial. Appellant testified on his own behalf and closed his case.
On the part of the respondent three witnesses testified. At the close of defence case both counsel made oral submission. In a considered judgment delivered on 28/03/2003 the learned trial judge Ikyegh J. dismissed the 1st arm of the relief claimed in paragraph 28(a) of the amended statement of claim on the grounds that the appellant failed to prove his claim therein and ordered for the continuation of the deduction from the monthly emolument of the appellant.
Being dissatisfied with the judgment of the lower court,appellant lodged an appeal to this court vide his notice and grounds of appeal dated 26/06/2003 and filed on 27/06/2003. The notice of appeal contained seven grounds of appeal.
In compliance with the rules of this court parties exchanged briefs of argument. Appellant’s brief of argument settled by B, Wayo Esq was filed on 12/03/2007 but deemed properly filed and served on 19/03/2009. Respondent’s brief of argument settled by Gabriel A. Ibu Esq was filed on 19/03/2009. When the appeal came up for hearing both counsel adopted their respective briefs of argument.
Appellant formulated four issues for determination in his brief of argument. The issues are:-
1. Whether or not in the absence of the audit report or the secondary evidence of it, there was no evidence indicating the alleged purpose or basis in which the deductions from the monthly emoluments of the appellant was made, and if the said deductions were reasonably made without any protest by the appellant and whether the appellant was in a position to produce the audit report without which he would not succeed.
2. Whether or not there was/is evidence on record to which the learned trial judge found that 30 tones (600) bags of cement product were diverted by the appellant.
3. Whether or not the learned trial judge was correct in attaching any weight to the evidence of DW3 when the said evidence contradicts the respondent’s pleading.
4. Did the trial judge weigh the evidence adduced in the matter on a proper scale as ascribe the correct preponderance before arriving at a conclusion that the appellant failed to prove his case.
For the respondent two issues were distilled for determination as follows:-
1. Whether the learned that (sic) judge properly evaluated the evidence before coming to the conclusion the plaintiffs action succeeded on the second arm of paragraph 28 (A) of the commended (sic) (amended) statement of claim, only.
2. Whether the plaintiff proved his case to be entitled to judgment on the basis of paragraph 28(A) (B) and
(C) of the amended statement of claim.
I have carefully examined the issues raised by both parties. For convenience I will adopt the issues raised by the appellant in determining the appeal. The respondent’s issues are similar to that of appellant so same will be treated together. I have also observed that all the four issues relate to evaluation of evidence as such I will treat them together in determining this appeal.
In arguing issue one learned counsel referred to Exhibit C and H the protest letters written to the respondent company as regards the deductions from his monthly emoluments. Learned counsel also submitted that Exhibit ‘B’ is palpable and it contained in it, the alleged decision of the respondent company to deduct money from appellant’s monthly emoluments. Counsel submitted that even without the audit report the absence of which the learned trial judge said he failed to prove his case, the contents of Exhibit ‘B’ were sufficient enough and contained reasons for the monthly deductions. Learned counsel referred to the testimony of DW2 where he said there is no specific format that existed for protesting against deductions and submitted that appellant cannot be said to have acquiesced his right to exist having regard to Exhibit C and H.
Learned counsel further urged the court to invoke Section 149(d) of the Evidence Act Cap 112 L.F.N. 1990 for failure of the respondent to produce the audit report. That if respondent had produced the report it would have been unfavourable to it.
The complaint under issue two is that since Exhibit ‘A’ emanated from the respondent company according to DW2 and content shows that the said 30 tones (600 bags) of cement have been received by the storekeeper it cannot be said that he diverted the 30 tons of cement. Learned counsel contended that there is no iota evidence suggesting that the 30 tones (600 bags) of cement was diverted by the appellant. The complaint of the appellant as regards issue three is that since DW3 did not join the respondent company when the incident happened his evidence can at best be said to be hearsay. See Section 77 of the Evidence Act Cap 112 LFN 1990. Counsel also referred to the testimony of DW3 where he said that he traced the audit report to the office of the Chief Internal Auditor and then the office of the Assistant General Manager (AGM) in charge of personnel and finally the office of the General Manager Commercial but discovered that the document was removed and was no longer in the custody of the respondent and submitted that same was false. He contended that the search should have extended to the office of the managing director (MD) of the respondent company. According to him it was deliberately omitted. That the evidence of DW3 and respondent’s defence ought not to have been regarded at all.
While arguing issue four learned counsel cited Section 135(1) and (2) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 as amended to show that the initial burden of proof lies on the appellant to prove his assertion. It was submitted that appellant discharged the burden expected of him by law. That appellant gave evidence, and tendered Exhibit A in evidence which is invoice No: 049960 of the respondent company wherein the said cement alleged to have being diverted by the appellant, in transit, was in fact taken delivery of by the store keeper of the respondent company. That Exhibit ‘A’ is genuine and DW2 confirmed it emanated from the respondents company. It was submitted that the evidence of the appellant clearly showed that he had nothing to do with taking delivery of cement or selling cement, or conveying cement from the respondent’s head office to the depot at Vandiekya,that the evidence of DW1 as regards the functions of the appellant did not suggest the appellant was in a position to divert any cement product, Learned counsel contended that the deductions of the amount of one thousand five hundred naira (N1,500,00) only every month from his salary to satisfy the sum of two hundred and seventy thousand naira (N270,000,00) as the value of the 30 tones (600 bags) of cement appellant allegedly diverted was unjust and unreasonable.
It was further argued that since appellant discharged the burden of proof required of him by law, the burden proving that he diverted 30 bags (600 bags) of cement, the property of the respondent company now shifted to the respondent by virtue of Section 137(2) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. That the burden lies on the respondent to prove that Exhibit A is not genuine. It was also the duty of the respondent to have called the store keeper as witness or at least discredit Exhibit ‘A’.
In response, learned counsel for the respondent commenced argument under issue one by referring to page 29 lines 22 and page 30 lines 1-15 of the record wherein the learned trial judge outline several proved facts. Learned counsel submitted that a proper consideration of the grounds of appeal as well as the issues for determination raised by the appellant in paragraph 2 of his brief of argument show that the entire case is hinged on the judges evaluation of the case before him. This calls into question the circumstances in which an appellate court would reverse findings of fact made by a trial court as this matter. Learned counsel submitted that the settled principle for the determination of appeal on issues of facts by an appellate court is that where the trial court unquestionably evaluated the evidence and appraised the facts, it is no longer the business of the court of appeal to embark on a fresh appraisal of such evidence and not only of fact by the trial court but also substitute its own views for those of the trial court. Reliance was placed on A.M. Akinloye Vs Bello Eyiyola & Ors 1968 NWLR 92 @ 95 and Samson Awoyale Vs Joshua O. Ogunbiyi 1984 4 SC 98 @ 120.
Learned counsel submitted that in arriving at the findings referred to at pages 2-3 of the appellant’s brief of argument, the learned trial judge found that while appellant was saddled with the responsibility to “mann the sales desk of the company, the disputed consignment of cement was actually received but diverted and disposed of without the proceeds thereof entering the coffers of the defendant company”
It was further submitted that the appellant in his evidence contended that the storekeeper at the depot took delivery of the disputed consignment in Exhibit ‘A’. The said cement consignment was sold and the proceeds thereof paid to one Mr. Aende the cashier for banking. The said cashier testified as DW1, and refuted the allegation thus:
“I was not given money by the plaintiff to bank for the defendant respecting invoice No. 049660 in Exhibit A. This is my first time of seeing Exhibit A’.
Counsel contended that the witness was not cross-examined on salient evidence. That appellant did not give evidence of the person who sold the cement consignment and gave the proceeds to Mr, Aende to bank for the respondent. Learned counsel contended that appellant did not demonstrate to the court among the many signatories on Exhibit A, the signature of the storekeeper. That DW1 and DW2 also stated in their testimonies that they were not conversant with the signature of the storekeeper,that appellant has a duty to prove the signature of the storekeeper on Exhibit A while in the witness box. Counsel argued that it is not the duty of a judge to examine records out of court or make independent enquiries to determine the signature of the store keeper as in this case, Reliance was placed on Onibudo Vs Akibu (1982) 7 SC 60 @ 62, Yongo Vs Commissioner of Police 1992 9 SCNJ 113 @ 131 and Durimiya Vs Commissioner of Police1961 NRNLR 103. Counsel maintained that appellant failed to prove that the said consignment was sold and the proceeds given to Mr. Aende, DW1, for banking. That even the appellant admitted under cross-examination that he issued the authority to the cashier but that he do not have the authority himself. Learned counsel urged the court to hold that even if Exhibit A emanated from the defendant company as found by the learned trial judge, it was the appellant who received the consignment and who also sold same and converted the proceeds thereof without paying them into the coffers of the respondent.
Learned counsel further contended that the evidence of DW3 was not hearsay, as an employee of the respondent, the witness was entitled to give evidence of transactions of the company, whether he personally handled the transactions or not subject to the weight to be attached to such evidence. See Ishola V. SGB Nig Ltd (1997) 2 SCNJ 16. That the evidence of DW3 did not therefore touch on his personal knowledge of the transaction. DW3 only testified on the where about of the audit report and the corporate policy of the respondent respecting cases of embezzlement of cement by employees. The finding that it was impracticable for defendant to produce the said report on account of its loss cannot be faulted. Counsel urged the court to hold that the learned trial judge properly evaluated the evidence and came to the correct conclusion in his findings. That the findings should therefore not be interfered with.
While arguing issue two learned counsel submitted that appellant dumped Exhibits C and A among (among other) before the court without even demonstrating the contents therein. It was only under cross-examination that he admitted that Exhibit A could even account for his dismissal if he was found liable. That in spite of these findings the learned trial judge found exhibit M, letter of suspension issued during the pendency of the action invalid, Counsel submitted that the audit report was central to the determination of the entire case. Learned counsel contended that Exhibit B, which was also not demonstrated in court, could not fix the respondent with liability as argued by the appellant.
It was further argued that section 149(d) of the Evidence Act Cap 112 LFN 1990 cannot be invoked against the respondent for the non-production of the said audit report. The legal effect of a failure to produce a document for which a Notice has been issued has been put to rest by the Supreme Court in Muhammed Buhari & Anor vs Chief Olusegun Aremu Obasanjo & Ors (2005) 13 NWLR (Pt. 941) 1, 127 – 128 per Uwais CJN (as he then) was.
Counsel urged the court to resolve this issue in favour of the respondent by holding that the appellant did not prove his case at the lower court and the learned trial judge was correct in dismissing same to the extent he did.
As regards ground 6 of the notice of appeal, he urged the court, to discountenance same as no issue has been distilled from it for determination by the appellant.
As earlier noted all the issues raised by the appellant borders on evaluation of evidence by the learned trial judge. The question is what is the role of the appellate court? In Eboache V. Atomesin (1997) 5 NWLR (Pt. 56) 490 at 507-508. Onu JSC stated as follows:-
“The duty of appraising evidence given at a trial court is pre-eminently that of the court that saw and heard the witnesses and it is also the right of the court to ascribe values to such evidence. The Court of Appeal may not disturb the judgment of the trial court if it is supported by evidence even in the slightest degree just because it would have come to a different conclusion on the same facts.”
See Mogaji V. Odofin (1978) 4 SC (Reprint) 51 at 65, Nzekwe Vs, Nzekwe (1989) 3 SC (Pt. 11) 76; Atanda V. Ajani (1989) 6 SC (Pt, 11) 87; Kamulu V. Umunna (1997) 5 NWLR (Pt. 505) 321 at 337 and Kaydee Ventures Ltd Vs. The Hon. Min of Federal Capital Territory (2010) 2-3 SC (Pt. 11) 1 at 34-35.
In another related case of Dada & 2 Ors V. Bankole & 2 Ors (2008) 1 SC (Pt. 111) 219 at 247-248 Tobi, JSC had this to say;
“The main function of an appellate court (including court of Appeal) is to re-evaluate the evidence at the trial court. This the court does, by examining the cold record of appeal before it. As long as the court does not go outside the record in search for more inculpatory or exculpatory evidence, this court will not fault the Court of Appeal.”
The purpose of an appeal is to find out whether or not, on the evidence and the applicable law, the trial court, came to a right decision. The complaint of the appellant relates to the findings of fact arrived at by the trial judge. I will carefully examine the findings complained of, made by the trial judge in order to verify whether he properly evaluated the evidence or not.
As regards issue one, I wish to state that the learned trial judge clearly gave reasons as to why he did not give weight to Exhibit C and H’ in absence of the audit report. At page 35 lines 27-33 of the record the learned trial judge stated thus:-
“I do not, with respect, consider Exhibits C and H of any moment to the modalities of monthly deductions, as the bedrock of the deductions emerged from the audit report as stated by plaintiff, and without that report in evidence the basis upon which it can be ascertained whether the deductions should stand or not cannot be located. Exhibits C and H are thus hanging in the air and may only become germane to the case if the audit report is also in evidence as an Exhibit. ”
The audit report was central to the determination of the entire case. Learned counsel for the appellant had argued that since respondent failed to give explanation as to why it could not produce the report, the court should invoke S.149(d) of the Evidence Act Cap 112 L.F.N 1990 now Section 167(d) of the Evidence Act 2011 as amended and hold that respondent failed to produce the report because same would be unfavourable to it. As rightly submitted by respondent’s counsel the legal effect of a failure to produce a document for which a Notice has been issued has been put to rest by the Supreme in Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1, at 127. 128 wherein Uwais C.J.N. (as he then was) stated thus:
“At any rate, the proper procedure, to be followed as a result of the failure to produce the documents, is for the party that needed the documents to adduce secondary evidence of them in accordance with section 97(1) (a) and 98 of the Evidence Act or ask the court to compel the defaulter to produce the documents by committal to prison.”
In his concurring judgment, Ejiwunmi J.S.C (of blessed memory) at page 236 had this to say:
“The Tribunal in my humble view correctly stated the law when it said that a party on whom Notice to produce is served is under no obligation to produce the document named therein.
Such Notice plus the failure to produce the document named therein, merely enables secondary evidence of the document to be given. It therefore cannot be correct that the provision of Section 149(d) of the Evidence Act can be brought in aid. That section does not relieve a plaintiff of the burden of producing the document or proving its contents. See also Union Bank of Nigeria V. Athaji Muhammodu Idrisu 1999 9 NWLR (Pt.609) 105 at 118-119: Gbasamosi V. Kabo Travels Ltd 2000 8 NWLR (Pt. 668) 243 at 273”
In Union Bank Plc V. Idrisu cited supra the Court of Appeal per Oduyemi J.C.A at page 118-119 stated as follows:-
“With great respect, the notice to produce issued on the 1st defendant does not make it obligatory on 1st defendant to produce them. It only entitles plaintiff to tender secondary evidence by virtue of S.98 of the Evidence Act.”
Appellant failed to explore other avenues provided after issuing notice to produce as such the provisions of section 149(d) of the Evidence Act cannot be brought in aid, I have examined Exhibit B a debit invoice issued to the appellant. I am of the humble view that it cannot take the place of the audit report. I am in agreement with the finding of the learned trial judge that the onus was on the appellant as plaintiff (who had introduced the issue of the audit report) to prove same in evidence to enable the court appraise same. For the reasons stated I cannot fault the finding of the learned trial judge on this issue. I therefore resolve issue one in favour of the respondent.
I now consider issue two. Appellant relied heavily on Exhibit ‘A’ to support his claim that he did not divert the said 30 tones (600 bags) of cement belonging to the respondent. The contention of the appellant is that the storekeeper took delivery of the disputed consignment in Exhibit ‘A’. He said DW2 also confirmed that Exhibit ‘A’ emanated from the respondent. I think it is necessary to note the statement of the learned judge appearing at page 29 lines 20-34 of the record. He had this to say:-
“There is no dispute about the following facts which I hereby believe and accept -the plaintiff is an employee of Defendant Company as sales clerk and was posted to Mann the sales desk of defendant company’s cement depot at Vandeikya town in 1995; while in that office a consignment of cement was received by Exhibit ‘A’ the invoice accepting delivery of it at the said depot; the said consignment of cement contained 600 bags of cement and was to be sold to customers at the deport retail price of 350 per bag as at 17.3.1995. When it was received at the Vandeikya depot; the entire 600 bags of the said consignment of cement were diverted and disposed of without the proceeds thereof entering the coffers of the defendant company a routine audit outing by one of the internal auditors of the company detected the diversion in the course of auditing the work of the personnel of the Vandeikya town cement depot for the months of March and April, 1995 on 11.5.95. ”
From the findings of the learned trial judge there is no dispute as to the fact that the consignment of 600 bags of cement were delivered as per Exhibit ‘A’ at the respondent’s depot in Vandeikya but same were diverted and sold without the proceeds entering the coffers of the respondent. This prompted the investigation conducted by the auditor of the respondent (DW2). Appellant while testifying in chief stated that the consignment of cement was sold and the proceeds handed over to deft’s cashier called Aende who was attached to the deft’s depot at Vandeikya for banking of same by him. (See page 15 lines 10-13 of the record) DW1 refuted this allegation in his testimony appearing on page 17 lines 28-30 of the record wherein he said:-
“I was not given money by the plaintiff to bank for the deft respecting invoice No, 49660 in Exhibit ‘A’.
This is the first time of seeing Exhibit ‘A’.”
DW1 was not cross-examined on this salient piece of evidence. Plaintiff did not disclose in his testimony the person who sold the cement consignment and gave the proceeds to Mr. Aende to bank for the respondent. Appellant therefore failed to adduce cogent and credible evidence to support his assertion that the cement consignment was received, sold and proceeds given to the cashier DW1 for banking, It is trite that he who asserts the affirmative of an issue has the burden of proving the truth of such assertion. See section 136(1) of the Evidence Act 2011 as amended. From the totality of the evidence placed before the trial court the only logical conclusion is that appellant sold the cement consignment and failed to pay the proceeds into the coffers of the respondent. The finding of the learned trial judge that the appellant diverted 30 tons of cement belonging to the respondent is therefore not outrageous as argued. I will accordingly resolve issue two in favour of the respondent.
As regards issue three part of the complaint of the appellant relates to the testimony of DW3. It was argued that since DW3 was not an employee of the defendant company (respondent) as at the time of the transaction, his evidence is hearsay. I do not agree with the submission of learned counsel for the appellant that the evidence of DW3 was hearsay. As an employee of the respondent he was entitled to give evidence of transactions of the company, whether he personally handled the transactions or not. It is only the weight to be attached to such evidence that may be considered by the court see Ishola V. SGB Nig Ltd (1997) 2 SCNJ 1 @ 16, DW3 did not testify regarding his personal knowledge of the transaction but only stated the where about of the audit report as at the time of trial. DW3 also gave evidence regarding the corporate policy of the respondent respecting cases of embezzlement of cement by employees. I agree with learned counsel for the respondent that the finding that it was impracticable for the respondent to produce the said audit report on account of loss cannot be faulted, the learned trial judge accepted the explanation offered by the respondent and emphatically stated that appellant asserted the existence of the audit report as such the burden lies on him to prove it which he failed. The finding of the learned trial judge is at page 32 of the record and read thus:
“In my opinion and finding it was plaintiff that introduced the issue of the audit report in the present case, and the onus was thus on him to have put the document n evidence for appraisal by this court whilst it was impracticable for plaintiff to tender the audit report itself in evidence as an Exhibit on account of its loss while in the custody of the defendant company, since he served a notice on defendant company to produce the document, but defendant company was unavoidably unable to produce it and could be excused on that ground, the plaintiff ought to have given secondary evidence of the terms of the document in lines of the document itself for the purpose of establishing the averment in the first leg of paragraph 28(A) of the further amended statement of claim read together with paragraph 15 thereof…”
The learned trial judge continued still at page 32 lines 34- page 33 lines 1-20 of the record thus:-
“In the present case, plaintiff did not give secondary evidence of the audit report. In short he gave no evidence at all of the contents of the audit report. Even when the DW2 an internal auditor of defendant company testified in this case to the effect that he investigated the incident of the diverted consignment of cement by questioning the staff of the defendant company at the Vandeikya depot at the material time and taking away their written statements upon which he compiled his report in respect of the investigation and submitted same to the management of defendant company, the plaintiff did not utilize the presence of this witness in the witness box to elicit secondary evidence in that regard. I find it unsafe to conjecture the contents of the audit report, and hereby hold that plaintiff who had asserted the existence of the audit report, and had also intended to rest his case on it as it relates to the deductions pleaded in his further amended statement of claim, especially paragraphs 15 and 28(A) thereof; did not prove that aspect of his case see Owosho and Ors V. Dada (1984) 7 SC 149 at page 166. The head of claim in the first limb of paragraph 28(A) of the further amended statement of claim is consequently not proved and is hereby dismissed”
It is clear from the findings made by the learned trial judge reproduced supra that he properly evaluated the evidence adduced before him and came to the correct conclusion which in my humble view cannot be faulted, Issue three is devoid of merit and same will be resolved in favour of the respondent.
The complaint raised under issue 4 is more or less a summary of all the complaints raised under issues 1-3, Appellant rightly stated the position of the law as to who has the burden of proof.
In civil causes or matters the burden of proof lies on the party asserting the existence of the facts under section 135(1 ) of the Evidence Act 1990 now section 136(1) Evidence Act 2011 as amended, For he who asserts must prove. As earlier stated under issue 2 the learned trial judge accepted and found as a fact that the consignment of 30 tons (600 bags) of cement was received at the respondent’s depot as evidenced by Exhibit ‘A’ invoice No 049660, but that the consignment was sold and proceeds were not paid into the respondent’s coffers. Investigation conducted by the audit department found the appellant liable as revealed in the testimony of DW1. From the testimony of DW1, all the staffs involved were asked to send written statements stating their involvement in the alleged diversion of the consignment. Appellant was the sales clerk, Appellant alleged in his testimony that the proceeds of the consignment stated in exhibit ‘A’ were given to the cashier (DW1) and he paid the money into the respondent’s coffer. DW1 (cashier) refuted the allegation and his testimony was not discredited under cross-examination. PW1 as sales clerk stated in his testimony on page 15 of the record that his functions were to invite or record authority to pay and authority to collect and prepare sales summary. PW1 did not tender the sales summary as part of his evidence to confirm whether the money was handed over to the cashier as alleged. From the available evidence adduced it is my humble view that appellant failed to adduce cogent and credible evidence to support his assertion that he did not divert the consignment of 600 bags of cement. The amount involved is as stated in Exhibit ‘B’ as such the deductions made from appellant’s monthly salaries in satisfaction of the total amount cannot be said to be unjustifiable. The finding of the learned trial judge on the issue is not perverse. Appellant has failed to discharge the burden of proof required of him by law. The burden can only shift on the respondent if appellant had successfully discharged the burden placed on him.
Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case/ an Appeal Court will be left with no option but to affirm such a decision. See Osuji V. Ekeocha (2009) 39 NSCQR 563; Wulochem V. Gudi (1981) 5-7 SC 291,; Ebba V. Ogodo (1984) 1 SCNLR 372; Ibodo V. Enorofia (1980) 5 SC 42. The learned trial judge properly evaluated the evidence adduced and made findings of fact which in my humble view cannot be faulted. Accordingly issue 4 is also resolved in favour of the respondent.
Ground 6 of the Notice of Appeal challenged the refusal to award general damages. I have observed that appellant did not formulate any issue for determination from the said ground of appeal. No arguments were also canvassed in support of general damages. Where no issue is formulated from a ground of appeal such ground is deemed abandoned. I would in the circumstance discountenance ground 6 of the notice of appeal.
In the result I hold that this appeal be and is hereby partly allowed, Appeal dismissed as it relates to reliefs 28(A) 1st leg, B and ‘C’. While the decision of the lower court relating to the second arm, of relief 28(A) is hereby affirmed. Parties to bear their own costs.
JA’AFARU MIKA’ILU, J.C.A: Having perused the judgment of my learned brother Hon. Justice A.G. Mshelia, JCA, I agree with the reasons given in it and the conclusion reached thereof. The appeal is partly allowed. However appeal is dismissed as it relates to reliefs 28(A) 1st leg, ‘B’ and ‘C’. The decision of the Lower Court relating to the second arm, of relief 28(A) is hereby affirmed. Parties to bear their costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I read in advance the judgment just delivered by my learned brother, Mshelia JCA. All issues involved in this appeal have been adequately dealt with and I have nothing exra to add.
This appeal is allowed in part with the consequence that the decision of the lower court relating to the second arm of relief 28(A) is hereby affirmed. I also abide by the consequential orders in the lead judgment including that of cost.
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Appearances
B, J. WayoFor Appellant
AND
G. A. IbuFor Respondent
