WEST AFRICAN EXAMINATIONS COUNCIL v. PROVIDENCE OGECHUKWU MEKWUNYE (2016)

WEST AFRICAN EXAMINATIONS COUNCIL v. PROVIDENCE OGECHUKWU MEKWUNYE

(2016)LCN/8380(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/L/195/2015

COURT: JURISDICTION; WHETHER CONTRACT AND TORT OF NEGLIGENCE ARE WITHIN THE JURISDICTION OF THE FEDERAL HIGH COURT

The subject matter of this case as stated by the Respondent as claimed in the Court below is that of contract and the tort of Negligence. These are subjects that do not come within the armbit of the jurisdiction of the Federal High Court. See Section 251(1) 1999 Constitution and Section 7(1) of the Federal High Court Act, Section 257 (1) 1999 Constitution spelt out clearly the jurisdiction of the Federal High Court. Jurisdiction is the very basis on which any Tribunal tries a case. It is the lifeline of all trials.

I therefore hold that the High Court of Lagos State was the proper forum to deal with this Appeal and the subject matter contained in the claim. The Federal High Court has no jurisdiction to entertain this claim. This issue is therefore resolved in favour of the Respondent against the Appellant. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

APPEAL: RE-EVALUATION OF EVIDENCE; WHEN THE APPELLATE COURT CAN RE-EVALUATE EVIDENCE LED IN THE TRIAL COURT AND THE PRINCIPLES GUIDING THE EVALUATION OF EVIDENCE

Under Section 15 of the Court of Appeal Act, this Court can re-evaluate evidence led in the trial Court where it has been suggested that the trial Court did not fully evaluate it properly. Evaluation of relevant and material evidence before Court and the ascription of probative value to such evidence are the primary function of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluated the evidence and justifiably appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. See Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) pg 65, Bashaya vs State (1998) 5 NWLR (Pt.550) pg.351, Ojokolobo vs Alamu (1998) 9 NWLR (Pt.565) pg.226, Sha vs Kwan (2000) 5 SC pg.178, State vs Ajie (2000) 7 SC pg. 178, Adebayo vs. Aduse (2004) 4 NWLR (Pt.862) Pg.44, Fagbenro vs Arobadi (2006) 7 NWLR (Pt.978) Pg.174. The evaluation of evidence is primarily the function of the trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate such evidence otherwise the Appellate Court has no business interfering with the findings of the trial Court on such evidence. See Adebayo vs Adusei (supra). In the evaluation of evidence, the trial Courts are guided by the following principles, namely: (a.) whether the evidence is admissible (b.) whether the evidence is relevant (c.) whether the evidence is credible (d) whether the evidence is conclusive and (e) whether the evidence is more probable than that given by the other party. Mogaji vs Odofin (1978) 4 SC pg 91, Akande Industries Ltd vs. Olubode (2004) 4 NWLR Pt.862 pg 1. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: STANDARD OF PROOF IN CIVIL CASES; HOW THE COURT COME TO A DECISION AS TO WHICH EVIDENCE TO ACCEPT AND REJECT

In civil cases, the Court decided the case on the balance of probabilities or preponderance of evidence. This is done when a trial Court puts on an imaginary scale the totality of the evidence adduced by the parties before it, before coming to a decision as to which evidence it accepts and which it rejects. Adebayo vs Adusei (supra), Olusile vs Maiduguri Metro Council (2004) 4 NWLR Pt.863 pg.290, Fagbenro vs Arobadi (2006) 7 NWLR Pt.976 pg 174. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

DAMAGES: WHEN DAMAGES CAN BE AWARDED AND THE WHAT NEGLIGENCE IMPLY

On the question of damages, it can only be awarded where the Appellant has been negligent in the way it acted. Negligence is the failure to take reasonable care where there is a duty and it is attributable to the person whose failure to take reasonable care has resulted in damage to another. See UTB (Nig) Ltd vs Ozoemena (2007) 3 NWLR (Pt.1022) pg.488, UBA Ltd vs Achora (1990) 6 NWLR (Pt.156) pg.254, Odinaka vs Moghalu (1992) 4 NWLR Pt.233 pg.1 PER. UZO I. NDUKWE-ANYANWU, J.C.A.

TORT: TORT OF NEGLIGENCE; WHAT A PLAINTIFF MUST PLEAD TO SUCCEEDIN AN ACTION FOR NEGLIGENCE

For a plaintiff to succeed in an action for negligence, he must plead sufficient particulars of the negligence alleged. The plaintiff must also adduce credible evidence to show the duty of care owed by the Defendant, the breach of that duty by the Defendant, and the damage suffered by the plaintiff as a result of the Defendant’s failure to take care, except the Defendant admits negligence UTB (Nig) vs Ozoemena (supra) Orhue vs NEPA (1988) 7 NWLR pt 557 pg.187. It is settled law that negligence is a question of fact not law. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

WEST AFRICAN EXAMINATIONS COUNCIL – Appellant(s)

AND

PROVIDENCE OGECHUKWU MEKWUNYE – Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Lagos State delivered on the 19th day of November, 2013 by Hon. Justice O. O. Femi-Adeniyi.

Sometime in April 2008, the Appellant published an advert in the National dailies inviting interested candidates to register online via Appellant’s website for the Senior Certificate Exams for November/December 2008 batch. In view of the advert, the Respondent purchased a scratch card for the online registration and then accessed the Appellant’s website to register.

It is the case of the Respondent that she registered for the examination with the name “Mekwunye Providence Ogechukwu” but upon acknowledgment of the registration the last two letters of her name was omitted to read thus “Mekwunye Providence Ogechuk”. She tried to contact the Appellant in a bid to find out why her name was cut short but her effort proved abortive. She then instructed her counsel to write to the Appellant on the same issue.

Later, the Appellant contacted her and her father informing them that the Respondent’s name was cut short

because the registration platform/software was configured to admit only 25 letters and that the Respondent’s name was made up of 27 letters. By a letter dated 17th day of October, 2008, the Respondent through her counsel demanded that her name be rectified. In reply to the letter for amendment, the Appellant requested for the payment of a fee of N5,000 and some other requirements in order to effect the amendment. In compliance, the Respondent paid the fee, however the Appellant failed to correct the error. Hence, the Respondent as Claimant commenced this action through her next friend at the trial Court seeking the following reliefs:

“a. A declaration that the contract between the claimant and the defendant is binding on the parties and that the claimant is entitled to have her November/December 2008 WASSCE (Private) result released and Certificate made in her full names “Mekwunye Providence Ogechukwu”

b. A declaration that the rejection of the last two letters in “Ogechukwu” vide the defendant’s acknowledgement of registration thereby renaming the claimant as “Mekwunye Providence Ogechuk” was wrongful, strips the claimant of her identity,

the usefulness and essence of the said examination, thereby rendering the result and certificate in evidence thereof useless and the entire exercise worthless.

c. An order compelling the defendant to release the claimant’s result and issue her certificate on the name “Mekwunye Providence Ogechukwu? being the names with which she sat for the said November/December 2008 WASSCE (Private)

d. Damages for breach of contract in the sum of N10,000,000.?

The Appellant as Defendant on its own part denied liability in its Statement of defence. The Appellant subsequently filed a reply to the Defence. Evidence was led, after which the trial judge in its considered judgment entered for the Respondent as follows:

“1. The contract between the parties is binding on the parties and the Claimant is entitled to have her November/December 20008 West African Senior Secondary Certificate Examination (WASSCE) (Private) result released and certificate on the result made in her full names “Mekwunye Providence Ogechukwu”

2. the rejection of the last two letters in “Ogechukwu” vide the defendant’s acknowledgement of registration thereby renaming the

Claimant as “Mekwunye Providence Ogechuk” was wrongful, strips the Claimant of her identity, the usefulness and essence of the said examination, thereby rendering the result and certificate in evidence thereof useless and the entire exercise worthless.

3. The defendant be and is hereby ordered to release the claimant’s results and issue her certificate on the result in the name “Mekwunye Providence Ogechukwu” being the names with which she sat for the said November/December 2008 West African Senior Secondary Certificate Examination (WASSCE) (Private).

4. Damages for breach of contract in the sum of N517,300.00″ page 198 of the record.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 31st January 2014 consisting of six (6) grounds of appeal. In accordance with the Rules of Court, parties have filed their respective brief of arguments.

The Appellant’s brief of argument was filed on 17th day of June, 2015 and deemed properly filed on 9th?day of February, 2016. The Respondent’s brief was filed and served on 14th day of July, 2015 and deemed properly filed and served on 9th?day of February, 2016.

In his brief, the

Appellant formulated five (5) issues for determination viz:-

“1. Whether or not the High Court of Lagos State erred in law when it assumed jurisdiction to entertain or adjudicate in the matter as filed by the Claimant (Respondent herein) and also as the same were “Declarative” relief in view of the provisions of Section 251(1)(q) (r) and (s) of the 1999 Constitution as amended.

2. Whether the learned trial judge of the Lower Court did not discountenance, overlook, disregard and not taken into consideration the unchallenged and uncontroverted facts as contained in the evidence, and which the Appellants defence was based and/or founded before reaching his conclusion.

3. Whether the relationship that exist between the Appellant and the Respondent in the conduct and writing of the Senior Secondary School Certificate Examinations was contractual which holds the parties to an agreement and the Respondent had acted recklessly and/or in defiance of the terms and conditions of the contract and also acted unreasonably,

4. Whether the Respondent at the point of registration online for the examination acted in defiance or indeed non-compliance with

directive and instructions when the examination software clearly and continually informs the candidate that the names to be filled in cannot be more than 25 characters, and whether or not in the extreme cases of names exceeding the 25 characters during registration the Claimant could have meaningfully abbreviated her name, with her initials.

5. Whether the Honourable Judge of the Lagos High Court was right in his conclusion that the Appellant (WAEC) was in breach of the contract with the Respondent and proceeded to award damages as the (Claimant) respondent shall be restored as far as money can do it into correct position she should have been had the breach not occurred.”

The Respondent on the other hand formulated four issues for determination viz:

“1. Whether the instant suit filed at the High Court of justice of Lagos State is within the jurisdiction of that Court having regard to Section 251(1)(q) (r) (s) of the 1999 Constitution vis-a-vis Section 272(7) of the said Constitution.

2. Whether the terms not forming part of a contract can be imported into the contract without an agreement of all parties to the contract.

3. Whether the

Defendant can validly limit the respondent’s names to 25 Alphabets and whether the Respondent at the point of registration online for the examination acted in defiance with any regulation when the Appellant refused, neglected and/or failed to inform the Respondent of the limitation of names prior to the said registration and whether the abbreviation “O” would mean “Ogechukwu” to all intent and purpose.

4. Whether damages as awarded by the Honourable Judge of the Lagos State High Court was adequate in compensating the Respondent for financial and non-financial loss suffered by her as a result of the Appellant’s breach of the contract”

From the issues formulated by both parties, it is clear that some of the issues are similar and can be dealt with together. For instance:

1. Appellant’s issue 1 is essentially the same as Respondent’s issue 1;

2. Appellant’s issue 3 is the same as Respondent’s issue 2 now issue 2,

3. Appellant’s issues 2 and 4 are the same as the Respondent issue 3; and now issue 3

4. Appellant’s issue 5 is the same as the Respondent issue 4 now issue 4.

The issues shall be discussed as

harmonized above.

ISSUE 1

Learned counsel for the Appellant submitted that the High Court of Lagos State has no jurisdiction to entertain this matter. According to Counsel, this matter falls within the exclusive jurisdiction of the Federal High Court. Firstly, because the Appellant is a Statutory body established by the West African Examination Council Act (WAEC Act) Cap W4 LFN 2004 and a Federal Government Agency under the supervision and control of the Ministry of Education. He relied on Section 1(1) and (2) and Section 8(1), (2) and (3) of the WAEC Act.

Secondly, because the Respondent’s claims fall within the Exclusive jurisdiction of the Federal High Court. He relied on Section 251(1) (p) (q) (r) and (s) of the 1999 Constitution. He also relies on the Supreme Court cases of NEPA V EDEGBERO (2002) 10 NWLR (PT.798) 79; OSAKWE V. FCE ASABA (2010) 10 NWLR (PT.1201) 1.

Learned counsel for the Respondent on the other hand submitted that the High Court of Lagos State has jurisdiction to adjudicate on this matter and not the Federal High Court. He submitted that for the Federal High Court to assume jurisdiction, the parties or a party must be

the Federal Government or its agency and also that the subject matter of the litigation must be within the exclusive jurisdiction of the Federal High Court. He relied on the cases of PDP V SYLVA (2012) 13 NWLR (Pt.1316) 85 and NEPA v EDEGBERO (2002) 18 NWLR (PT.795) 79. It is the contention of Counsel that the Appellant is not a Federal Government Agency and that the subject matter in this suit is one based on simple contract. He referred to the case of THE BRANCH CONTROLLER WAEC, ILORIN & ANOR V ALADE & ORS (2011) LPELR-8837 (CA) wherein the Court of Appeal per Justice Ikyegh held that WAEC (the Appellant in this case) is not a Federal Government Agency as the Appellant (WAEC) is jointly owned by countries of West Africa in addition to Nigeria with the result that the Appellant is not an appendage of the Federal Government of Nigeria or bound by the directive of the Federal Government of Nigeria.

He further submitted that Section 251(1) (p) (q) and (r) of the 1999 Constitution do not apply as the subject matter of this case is not based on the administration, management or control of WAEC nor is it based on the operation and interpretation of

the Constitution instead the subject of this case is based on simple contract between the parties.

This issue borders on the jurisdiction of the High Court of Lagos State to entertain this suit concerning WAEC as a body. The Appellant WAEC is an examination body established by the English speaking countries of the West African Sub-region. In Nigeria, the WAEC is supervised by the Ministry of Education. See Section 1(1) and (2), Section 8(1), (2) & (3) of the WAEC Act.

With the foregoing WAEC cannot be said to be an agency of the Federal Republic of Nigeria. See NEPA v. Edegbero The Branch Comptroller WAEC Ilorin and anor vs Alade & ors (supra). See also Section 251(1) of the 1999 Constitution.

Indeed Nigeria is an associate country, one of the countries that subscribed to WAEC. The other countries being Gambia, Ghana, and Sierra Leone.

Federal High Court Act, Section 257 (1) 1999 Constitution spelt out clearly the jurisdiction of the Federal High Court. Jurisdiction is the very basis on which any Tribunal tries a case. It is the lifeline of all trials.

ISSUE 2

Learned counsel for the Appellant submitted that the law establishing it together with the entry or examination form as completed and the regulation and syllabus all together constitutes the Rules and Regulations which the Respondent declared to abide by. According to counsel, these Rules and Regulations form the basis of the contract between the parties. It is the case of the Appellant that contrary to the decision of the trial Court holding that the contract between the parties is one with Statutory flavor, counsel contended that the contract between the parties is indeed a simple contract which terms were accepted by the

Respondent. He argued that parties are bound by the agreement entered into by them and?that the intention to be so bound should be discovered by the application of the objective test. He referred to the case of CARLILL V CARBOLIC SMOKE BALL CO (1893) 1 QB 256. He further submitted that the Court can only interpret and enforce the agreement as made. He referred to the case of OBIKOYA V WEMA BANK NIG LTD (1991) 7 NWLR (PT.201) 119. It is the case of the Appellant that the Respondent having declared to abide by the Rules and Regulations cannot resile from same. He also pointed out that the Appellant is not responsible for the registration of candidates online rather it is the candidates who register themselves via its websites which clearly informs the candidates upon registration, of the restrictions as to the number of character that can be imputed with suggestion as to the use of initials. That the Respondent went ahead, completed the forms and printed same regardless of the fact that all the characters of her name were not accepted by the computer. The Appellant therefore submitted that the Respondent along with the person whom she claims to have filled

the form with acted recklessly in breach of the contract between the parties.

On the other hand, learned counsel for the Respondent submitted that it is trite law that parties are bound by the terms of the contract and that no terms which does not form part of the contract ought to be read into it. He referred to the case of KABO AIR LTD V TARFA (2004) 6 WRN 134. He conceded that a contract was established between the Appellant and the Respondent at the point when the respondent paid for the scratch card. However, it is the contention of Counsel that as at the point the contract was entered into, the Respondent was not informed of any limitation as to the number of character in the name of a candidate until after her lawyer contacted the Appellant. Thus, the limitation of a candidate’s name does not form part of the contract and cannot be read into it. He referred to NIKA FISHING V LAVINA (2008) 11 MJSC 43; DALEK NIG LTD V OMPADEC (2007) 7 NWLR (PT.1033) 402.

?Furthermore, counsel also submitted the burden is on the Appellant to prove that there was such technology limitation and same was brought to the notice of the Respondent before the contract was

entered into, which the Appellant has failed to discharge.

It is settled law that parties to an agreement or contract are bound by the terms and conditions of the contract. As it were, it would appear that when the Respondent bought the card and went into the internet and filed her form, the parties would be said to have entered into a contract. However, all contracts have its terms to which all parties must abide by.

The Respondent claimed that she entered her full names that had 27 letters. The Appellant in turn stated that the WAEC software could only accommodate 25 letters. The Appellant stated in their statement of defence, in evidence in Chief and in cross examination that the computer can only take 25 letters.

It was left for the Respondent to abbreviate her name in any way she deemed fit. The Respondent persisted in putting her full names of 27 letters and the computer just picked and accepted what it was programmed to accept. The Respondent claimed that at the point of entering into the contract, that the Appellant did not inform her of the limitations.

The Appellant on the other hand stated that WAEC has a hand book which all

prospective students were supposed to read and abide by its rules on every aspect.

This book had all the rules and regulation as to the filing of forms and the examination proper. Also, the Registration software/website clearly and continually informed the candidate of the restriction as to the number of characters, why then did the Respondent not abide by the rules and regulations.

Everyone understands what a computer is. Once it is programmed it is so, it cannot accept more than what it is programmed to accept.

If there is a restriction in the form, every candidate is duty bound to obey and abide by such rules. You disobey at your own peril. The Respondent at the point of registration on line for examination acted in defiance or indeed non compliance with the rules and instructions when the examination software clearly and continually informed the candidate that the names to be filled in cannot be more than 25 letters or characters.

?Having been constantly reminded by the software that you cannot exceed 25 letters, the Respondent was clearly disobeying the set rules of the Appellant.

When you disobey set rules of which you were

reminded many times, any issues you encounter will be the consequence of that disobedience.

We all know what a computer is. If it is programmed to take only 25 letters it would stop at 25. You cannot do anything more than that. The computer accepted the names of the Respondent and clearly stopped at the 25th letter.

The rules and regulations of the Appellant cannot be changed for the Respondent.

The Respondent was warned about the restriction but persisted in her non-compliance or error. If the computer accepts only 25 letters and you continue filling your form, it means that, that is what you want to appear as your name. The computer would allow you to abbreviate your name, sensibly by yourself. Failing which you get your name end at the 25th letter.

The Respondent was clearly acting in defiance of the set rules of the exam council which was made for all and sundry.

The Appellant was not in any way responsible for the obvious abbreviation made by its computer software.

This issue is resolved against the Respondent in favour of the Appellant.

ISSUE 3

It is the contention of Learned Counsel for the Appellant that the

Rules and Regulation and the syllabus regulating the entire examination process (including the rules for the completion of the registration form) was made known to all candidates including the Respondent totaling 1,741,843 and all complied except the Respondent. He contended that one of such rules that was brought to the respondent’s notice was at the point of Registration when the Registration software continually informs the candidate that the names entered cannot be more than 25 characters and that in all other cases, a candidate can have his/her name meaningfully abbreviated by initials. It is the contention of counsel that the Respondent in filling her name along with her next friend saw the limitation regarding the number of characters of the respondent’s name that is acceptable to the computer and in defiance to the instruction to initial her name, she typed in her name as “Mekwunye Providence Ogechuk” to which she confirmed by submitting the form online. He also contended that by the pleading and evidence before the trial Court, the Appellant have established that such an error cannot be corrected to include the Respondent full names unless her name

is abbreviated; as the procedure for the generation of certificate is automated with various security features to guarantee the authenticity and that the entire names of the Respondent cannot be accommodated without manual intervention which will compromise the integrity of the certificates. He further contended that the trial Court did not take into account the totality of evidence before the Court regarding the notice of the regulation as well as the limitation to the number of characters acceptable by the computer. He referred to the case of ANZAKU VS GOV. NASARAWA STATE (2005) NWLR (PT.919) 448; AG, OYO STATE V FAIRLAKES HOTELS LTD (NO.2) (1989) 5 NWLR (Pt 212) 255. He thus invited this Court to re-evaluate the evidence before the trial Court pursuant to its powers in Section 15 of the Court of Appeal Act and give judgment in favour of the Appellant accordingly without necessarily remitting the case for retrial. He relied on the case of OKO VS NTUKIDEM (1993) 2 NWLR (PT.274) 124 SC.

?On the other hand, counsel for the Respondent submitted that the Appellant cannot justify the mutilation of the Respondent’s name on ground of technology limitation. He

further submits that there was no evidence of such limitation before the Court. It is the case of the respondent that the Statute setting up WAEC requires notice of any regulations to those to be affected and that the regulation which fails to comply with such a requirement cannot be valid. He relied on the case of NNPC V FAMFA OIL LTD (2012) LPELR-7812 (SC). Also, counsel contended that any regulation being a subsidiary legislation must not be inconsistent to Common Law or to be unreasonable or derogate from Fundamental Human Right. It is the case of the Respondent that the purported regulation as canvassed by the Appellant in this case cannot be valid as the Respondent never had notice of same and as the regulation also derogates from fundamental right under African Charter to freedom and identity. He also contended that the purported regulation is in the nature of an exclusion clause and should therefore be construed against the Appellant. He refers to ARCHIBONG V FBN PLC (2014) LPELR-22649 (CA) and EAGLE SUPER PACK (NIGERIA) LTD V ACB PLC (2006) 19 NWLR (PT.1013) 20.

?The Appellant indeed have given in evidence that the error cannot be corrected by the

computer once entered online. The Appellant stated that the Respondent was one of over 1.7m candidates who entered online. You were advised to abbreviate your own name meaningfully by yourself.

The Appellant had also told the Respondent that the certificate cannot be printed to accommodate the full names of the Respondent. Such an intervention would compromise the integrity of the certificate.

The Appellant had explained that the certificate cannot be done manually to accommodate the Respondent’s full names.

The Appellant stated that the learned trial judge did not fully understand the evidence led by the Appellant’s in making his deduction hence the error. Appellant therefore urged the Court to re-evaluate the evidence led by the Appellant.

Under Section 15 of the Court of Appeal Act, this Court can re-evaluate evidence led in the trial Court where it has been suggested that the trial Court did not fully evaluate it properly.

Evaluation of relevant and material evidence before Court and the ascription of probative value to such evidence are the primary function of the trial Court, which saw, heard and assessed the witnesses while

they testified. Where the trial Court unquestionably evaluated the evidence and justifiably appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. See Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) pg 65, Bashaya vs State (1998) 5 NWLR (Pt.550) pg.351, Ojokolobo vs Alamu (1998) 9 NWLR (Pt.565) pg.226, Sha vs Kwan (2000) 5 SC pg.178, State vs Ajie (2000) 7 SC pg. 178, Adebayo vs. Aduse (2004) 4 NWLR (Pt.862) Pg.44, Fagbenro vs Arobadi (2006) 7 NWLR (Pt.978) Pg.174.

The evaluation of evidence is primarily the function of the trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate such evidence otherwise the Appellate Court has no business interfering with the findings of the trial Court on such evidence. See Adebayo vs Adusei (supra).

In the evaluation of evidence, the trial Courts are guided by the following principles, namely:

(a.) whether the evidence is admissible

(b.) whether the evidence is relevant

(c.) whether the evidence is credible

(d) whether the evidence is conclusive

and

(e) whether the evidence is more probable than that given by the other party.

Mogaji vs Odofin (1978) 4 SC pg 91, Akande Industries Ltd vs. Olubode (2004) 4 NWLR Pt.862 pg 1.

The trial Judge had on record vide the testimony of DW1 that the Appellant’s software could not take more than 25 letters.

The computer constantly called the attention of the Respondent to the restrictions. The restriction of 25 letters is not personal, it is for WAEC which means all the other associate countries are bound by the same restriction. Nigeria as an associate member cannot unilaterally change the restriction. Rules are meant to be obeyed. When you sign on, you sign on to abide by all the rules. Failing that,

you have yourself to blame for any mishap.

The evidence led by both parties are on record. The Respondent stated that she bought the form and went on line to fill her forms. She filled into the computer her full names of 27 letters or characters and signed off. The Appellant in evidence stated that the computer only accepts 25 letters. This is in the rules and regulations concerning on- line registration.

Also the computer keeps popping up the instructions that only 25 letters are acceptable.

The trial Court ought to have evaluated this piece of evidence properly. The computer is a programmed machine and can only do what it is programmed to do. The rules and regulations is for over 1.7m candidates in Nigeria. The Appellant cannot change its rules at the whims of any candidate. It is a Rule for all the subscribing countries including Nigeria.

The trial Judge ought to have made a finding that the error is that of the Respondent and not a failing or negligence of the Appellant. Asking the Appellant to issue a certificate manually generated to accommodate the Respondent’s full names is unacceptable. The integrity of the Appellant is more

important to it.

For long, the Appellant has been battling to make sure that the integrity of the Examinations and certificates are protected. The Respondent has asked for the impossible which the Appellant cannot accede to do. The Appellant is protecting itself from such violations of its set rules.

The trial Court failed to evaluate this piece of evidence properly. Even though the Appellant had asked the Respondent to pay and file a protest letter requesting the Appellant to rectify the Respondent’s name as she wanted it to appear.

I therefore hold that the trial Judge did not properly evaluate this piece of evidence. This issue is therefore resolved in favour of the Appellant.

ISSUE 4

It is the contention of Counsel for the Appellant that the trial Court applied the wrong principles in awarding damages in favour of the Respondent. It is the case of the Appellant that having denied responsibility for any harm to the Respondent and having adduced evidence to show that it was the respondent and her witness who contrary to the Rules and Regulations refused to comply with the number of characters acceptable by the computer or use

initials for her name. He also contended that damages ought to be apportioned according to responsibility for injury. Finally, he submitted that no damages was pleaded or proved in evidence. He relied on AMAECHI V INEC (2008) 5 NWLR (PT.1080) 229; OBULOR V. OBORO (2001) 8 NWLR (Pt.714) 25.

In response to the Appellant’s contention that the Respondent have not pleaded or proved damages, counsel for the Respondent submitted that general damages need not be pleaded nor proved. He refers to CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT….) 512; UBN PLC V AJABULE & ANOR (2011) LPELR-8239(SC). Counsel further contended that by evidence before the Court, the Respondent have shown that he suffered both huge financial and non-financial losses for which he is entitled to be indemnify in damages. He also contended that this Court ought not to interfere with the award of damages unless the Court is convinced that the trial Court acted on wrong principle or the amount of award of damages is excessive. He relied on AGBU v OTUBUSIN (1961) 1 ALL NLR 299.

On the question of damages, it can only be awarded where the Appellant has been negligent in the way it acted.

Negligence is the failure to take reasonable care where there is a duty and it is attributable to the person whose failure to take reasonable care has resulted in damage to another. See UTB (Nig) Ltd vs Ozoemena (2007) 3 NWLR (Pt.1022) pg.488, UBA Ltd vs Achora (1990) 6 NWLR (Pt.156) pg.254, Odinaka vs Moghalu (1992) 4 NWLR Pt.233 pg.1

?It is settled law that negligence is a question of fact not law.

Therefore each case must be decided in the light of its own facts and circumstances. UTB (Nig) vs Ozoemena (Supra).

The burden of proof of negligence falls upon the plaintiff who alleges negligence. This is because negligence is a question of fact, not law, and it is the duty of the

person who asserts it to prove it. Failure to prove particulars of negligence pleaded is fatal to the plaintiffs case UTB vs Ozoemena (supra), Alhaji Otaru and Sons Ltd vs Idris (1999) 6 NWLR pt 606 pg 330.

The Respondent in her statement of claim stated that the Appellant negligently omitted, the last two (2) letters of her middle name. The Respondent failed to prove that it was a result of the Appellant’s negligence that it was omitted.

I had already held earlier in this judgment that the Respondent failed to or neglected to follow the set Rules and Regulations of the Appellant. The failure of the Respondent resulted in the abbreviation of the Respondent’s name.

Having held that the Appellant was not negligent in the way the Respondent’s name appeared without the last 2 letters, the question of damages no longer arise.

The Appellant owed no duty of care to the Respondent where the Respondent flagrantly refused to follow the prompting of the computer and the Rules and Regulations of the Appellant.

This issue is also resolved in favour of the Appellant. Apart from the first issue on jurisdiction which was resolved against the

Appellant, all other issues were resolved against the Respondent. This appeal therefore succeeds in part. This appeal is allowed. The judgment of the Lower Court is set aside. The award of damages to the Respondent is also set aside.

I make no order as to cost.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the lead Judgment prepared and delivered by my learned brother, NDUKWE ANYANWU, JCA. My lord has sufficiently covered the field in the lead Judgment, I therefore do not have anything useful to add, and I fully endorse the reasoning and conclusion and adopt the entire Judgment as my own.

JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Uzo I. Ndukwu-Anyanwu JCA, I also allow the appeal and abide by the consequential orders made therein.

Appearances

For Appellant

AND

C. MekwunyeFor Respondent