EZEAGU V GABIZZINLINGO PHARMACEAUTICAL CO. LTD

EZEAGU V GABIZZINLINGO PHARMACEAUTICAL CO. LTD


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 8TH JUNE, 2017.


APPEAL NO: CA/S/53/2014

CITATION: CA (2017) 6 LLIR 10

Before Their Lordships

HUSSEIN MUKHTAR, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A.


BETWEEN

IFEANYICHUKWU EZEAGU

(APPELLANTS)

AND

1. GABIZZINLINGO PHARMACEAUTICAL CO. LTD
2. MRS. CHINEMELUM ONWUELINGO

RESPONDENTS


PRONOUNCEMENTS

A. DAMAGES
1. General Damages–Whether same flows naturally from the success of the case of a party;

The position of the law is that general damages, when averred as having been suffered, the law will presume it to be the direct, natural or probable consequence of the act complained of by the party at the receiving end of the transaction except that the quantification of what is to be awarded thereof is at the discretion of the Court. See the cases of YALAJU-AMAYE vs. A.R.E.C. LTD (1990) LPELR-3511(SC); OSHINJIRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR-2799 (SC); CAMEROON AIRLINES vs. OTUTUIZI (2011) LPELR- 827 (SC), where the Apex Court per RHODES-VIVOUR, JSC had this to say on the issue; “…General damages are thus losses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved. See UBN LTD vs. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR (PT. 421) 558. General damage is awarded by the trial Court to assuage a loss caused by an act of the adversary.” PER EKO, J.C.A. (para. 105) READ IN CONTEXT.

2. Special Damages–Will an award of special damages, in addition to general damages amount to double compensation?

The position of the law is as stated by the Apex Court in the case of ELIOCHIN (NIG) LTD. & ORS vs. VICTORIA MBADIWE (1986) 1 NWLR (PT. 14) 47 where the Court held that if special damages are claimed in addition to general damages, in an action special damages will be awarded if strictly proved in addition to general damages. It is the view of this Court, in the instant case that the award of special damages along with that of general damages by the Court below does not in any way amount to double compensation. See also the case of ODIBA vs. AZEGBE (1998) 16 LRCN 4605 AT 4606, where it was held that where special damages have been strictly proved, the Respondent is also entitled to aggravated damages. PER EKO, J.C.A. (para. 106) READ IN CONTEXT.

B. EVIDENCE
3. Fact in Issue–When can a fact be said to be in issue?

This issue, in the opinion of this Court, and without necessarily mincing words is completely without merit. “Forgery” is not directly a fact in issue in the case. Sections 4 and 5 of the Evidence Act Cap. E. 14 LFN, 2011 defines a fact in issue as including those facts necessary in order to prove or disprove; to establish or refute a case. They are facts necessary by the law for the Plaintiff in a civil action to establish his claim and those the Defendant must prove in order to make out his defense. They are those, which by the pleadings are said to be in dispute. In short, those upon which the parties seemed to have joined issues. It is precisely for this reason that an admitted fact is not a fact in issue. See the case of OLUFOSOYE vs. OLORUNFEMI (1989) 1 NWLR (PT. 15) 26. Generally, where facts are not in dispute, they cannot be said to be facts in issue. See UGWUNZE vs. ADELEKE (2008) 2 NWLR (PT. 1070) 148. I have carefully examined the pleadings of the parties in this case and the issue of “Forgery” or any other crime cannot be said to have arisen in this case. Section 135(1) of the Evidence Act only applies where there is a specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defense as the case may be. See the case of NWOBODO vs. ONOH & ORS (1984) 1 S.C. 1 AT 40. See also the case of A. S. E. S. A vs. EKWENEM (2001) FWLR (PT. 51) 2034. PER EKO, J.C.A. (para. 92-93) READ IN CONTEXT.

4. Evaluation of Evidence–On the primary duty of the trial court to evaluate evidence

Generally, the position of the law as it has been decided in several cases on the subject is that it is not the function of the Appellate Court to substitute its own views for those of the trial Court, particularly where the issues depend on the credibility of witnesses as in the instant case. It is only when the trial judge has failed to properly evaluate the materials before it that the Appellate Court will in the interest of justice set aside the lower Court’s decision. See OKUNZUA vs. AMOSU (1992) LPELR-2531 (SC); IRIRI & ORS vs. ERHURHOBARA & ANOR (1991) LPELR-1536 (SC). PER EKO, J.C.A. (para. 101) READ IN CONTEXT.

5. Witness Testimony–On the effect of substantial inconsistencies on the credibility of a witness;

I am in agreement with learned Counsel for the Cross-Appellant that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements made. I cannot once again help but be utterly bound by the Supreme Court in the case of EYO vs. ONUOHA (2001) NSCQR 45 (PT. 1) 2010 AT 214 where it was held inter alia; “For an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross – examination attack and debunk it. This may be done by the witness reneging from the testimony he has given or contradicting himself by falsifying his earlier evidence. On the other hand, this evidence of one witness being contradicted by the evidence of another witness from same divide may weaken the overall effect of the evidence.” PER EKO, J.C.A. (para. 129) READ IN CONTEXT.

C. JUDGEMENT AND ORDER
6. Order of Dismissal and Non-suit–When will a court be entitled to make an order of dismissal as against an order of non-suit in a matter?

The settled position of the law is that dismissal of action is appropriate where Court is satisfied that the Plaintiff could not prove his claim. See the cases of EJIOFOR vs. ONYEKWE (1972) 12 SC 171; GREEN vs. GREEN (1987) 3 NWLR (PT. 61) 480. The consequences, however, of failure to prove a case instituted in Court is dismissal, which is the appropriate order to make and not one non-suiting the case. This Court in the case of IBEME vs. OKPALA & ANOR (1986) 1 QLRN 172 AT 175 per BELGORE, JCA (as he then was) stipulated that where a Plaintiff had put before the Court all his case and nothing in issue between the parties by virtue of the pleadings is left uncontested at the trial, and the Court finds the Plaintiff has failed to prove his case in toto, the order to make is one of dismissal and not non-suit. This decision followed the position taken by the Apex Court in the case of IKORO vs. SAFRAP (NIG) LTD (1977) 2 SC 123 AT 127. PER EKO, J.C.A. (para. 124) READ IN CONTEXT.

7. Order of Non-suit–Effect of failure to hear parties before the making of such order;

Suffice this to say, however, the position of the law in response to the contention of the Appellant is that where an order of non-suit is entered, failure to hear parties by the trial Court before the order is made would render such an order liable to be struck down. See the cases of CRAIG vs. CRAIG (1976) N.M.L.R. 52; BAKARE ELUFISOYE vs. SAMUEL ALABETUTU (1968) N.M.L.R. 299 AT 301; D. AIGBE vs. BISHOP JOHN EDOKPOLOR (1977) 2 S.C. 1 AT 15 -16; OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT. 70) 370 AT 396. PER EKO, J.C.A. (para. 88) READ IN CONTEXT.

D. PRACTICE AND PROCEDURE
8. Notice of Preliminary Objection–Proper purpose and when can be utilized in an appeal

The purpose of a Notice of Preliminary Objection, it has been said for the umpteenth time is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418….

It would be recalled that the Appellant predicated his Appeal before this Court on six (6) Grounds of Appeal and not just Ground three (3) alone, which the Respondents have picked quarrels with. The Supreme Court, in the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P. 611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal…”

See also the case of ADEJUMO vs. OLAWIYE (2014) 12 NWLR (PT.1421) 252 AT 265, where the Supreme Court
per BODE RHODES VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.” PER EKO, J.C.A. (para. 14-16) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY OHO, J.C.A.


  1. The controversies generated in the instant Appeal and Cross-Appeal are associated with the never ending disputes associated with the questions of when it will be justifiable for an Appellate Court to set aside the exercise of the trial Court’s discretion to order a non-suit in an action rather than dismissing the action out rightly. On the 25-11-2013, judgment was delivered by the High Court of Sokoto State, sitting at Sokoto in Suit No. SS/6/2012 and in which the Court non-suited the Claims of the Appellant/Cross-Respondent and granted the Counter-Claims of the Respondents/Cross-Appellants (See pages 183 – 201 of the records). At paragraph 45 of the Appellant/Cross-Respondent’s Statement of Claim, who was Plaintiff at the lower Court, he claimed against the Respondents/Cross-Appellants who were Defendants jointly and severally as follows;
  2. a. A DECLARATION that the acts of the Defendants in refusing to the Plaintiff access to the Company, stock sales, dealing with Company goods and services and sending disclaimers to customers of the 1st Defendant precluding them from transacting with the Plaintiff, collecting all the keys of the 1st Defendant from the Plaintiff, reporting the and lodging a complaint of impropriety against the Plaintiff to the men of the Nigeria Police Sokoto and breaching of the provisions of the partnership agreement dated 1st January, 2011 has brought to an end the partnership agreement entered into between the Plaintiff and the 1st Defendant on the 1st of January, 2011.b. The sum of ₦2,500.000.00 (Two-Million, Five–Hundred Thousand) due and payable by the Defendants to the Plaintiff as at December, 2010 as the Plaintiff’s remuneration for services rendered to the 1st Defendant as an apprentice and which was retained and re-invested into the 1st Defendants business and representing the initial financial investment of the Plaintiff as a partner of the 1st Defendant.
  3. c. The sums of 15,000,000.00 (Fifteen Million) Naira only representing 15% of the profit payable by the Defendants to the Plaintiff as partner to the 1st Defendant from January, 2011 to December, 2011.d. The sums of N85,000.00 (Eighty-Five Thousand Naira) only being the outstanding balance for the monthly up-keep allowance of the Plaintiff for the months of November, to December, 2011.e. The sums of N10,000,000.00 (Ten-Million Naira) only for the breach of contract.

    f. The sums of N10,000,000.00 (Ten-Million Naira) only as General Damages for the inconveniences, mental torture and psychological trauma caused by the Defendants to the Plaintiff.

  4. g. 25% interest on the sum of N15,000,000.00 (Fifteen Million Naira) only representing 15% of the profit payable by the Defendants to the Plaintiff as partner to the 1st Defendant from January 2011 to December, 2011 and until the final liquidation of the Judgment debt.h. 25% interest on the sums of N2,500,000.00 (Two-Million, Five Hundred Thousand) from January, 2012 until the final liquidation of the Judgment debt.i. 25% interest on the sums of N85,000.00 (Eighty-Five thousand) Naira only being the outstanding balance for the monthly up-keep allowance of the Plaintiff for the Months of November to December, 2011 until the final liquidation of the Judgment debt.

    j. 10% Courts interest on the judgment sums from the date of judgment until the final liquidation of the judgment debt.

    k. Cost of this action.”

  5. On the 30-7-2013, the Respondents/Cross-Appellants as Defendants filed an Amended Counter Claim, whereof they Counter-Claimed against the Appellant/Cross-Respondent as follows;a. A DECLARATION that the purported partnership agreement dated 1-1-2011 does not bind on the Defendants and as well null and void.b. A DECLARATION that the act of the Plaintiff to remove 397 cartons of ASFED and TRAMADOL from the 1st Defendant’s warehouse at Kano, Kano State without the consent of any of the 1st Defendant’s director is unlawful.
  6. c. AN ORDER mandating the Plaintiff to pay over to the Defendants the sum of N4,000,000.00 (Four Million Naira) being the value of the 397 cartons of ASFED and TRAMADOL Drugs which the Plaintiff removed from the 1st Defendant warehouse at Kano, Kano State without the consent of any of the 1st Defendants directors.d. AN ORDER of N2,000,000.00 (Two Million Naira) as General damages suffered by the Defendants, owing to the fact that the Plaintiff failed and refused to return the said goods or the monetary equivalent to the Defendants.e. 25% interest on the sums of N4,000,000.00 (Four Million) Naira representing the value of the 379 cartons of ASFED and TRAMADOL Drugs which the Plaintiff removed from the 1st Defendant’s warehouse at Kano State without the consent of any of the 1st Defendant’s Directors from December, 2011 until the final liquidation of the Judgment debt.

    f. 25% interest on the sum of N2,000,000.00 (Two Million) Naira or any other sum as the Hon. Court may deem fit to as General damages suffered by the Defendants, owing to the fact that the Plaintiff failed and refused to return the said drugs or monetary equivalent of the said drugs to the Defendants and until the final liquidation of the judgment debt. g. Cost of this litigation.

  7. At the close of pleadings and in proof of his case, the Appellant as Plaintiff testified for himself as the PW1 at pages 77 – 86 of the records and tendered a total number of 10 Exhibits marked as Exhibits P1 – P10. The Appellant called a witness who testified as the PW2 at pages 88 – 90 of the records. On the part of the Respondents, two (2) witnesses were called who testified as DW1 and DW2 at pages 92 – 103 of the records and tendered a total number of two (2) Exhibits marked as Exhibits D1 – D2 in seeking to establish their defense and in proof of their counter claims.
  8. At the close of plenary hearing, learned Counsel for the parties exchanged written addresses at pages 107 – 182 of the records, and the learned trial judge adjourned the case to the 25-11-2013 for judgment. See page 106 of the records. The learned trial Judge delivered the judgment of Court wherein he non-suited the claims of the Appellant and granted the Counter Claims of the Respondents. Dissatisfied with this judgment, the Appellant has Appealed to this Court vide a Notice of Appeal dated the 25-11-2013 but filed on the 26-11-2013. There are six (6) Grounds of Appeal filed at pages 202 – 206 of the records and a second Notice of Appeal dated and filed on the 4-12-2013 at pages 207 – 211 of the records. The Appellant, however, relied on the latter Notice of Appeal filed and dated the 4-12-2013. The six (6) Grounds of Appeal are reproduced here without their particulars as follows;
  9. GROUNDS OF APPEAL;1. The decision of the Court below is against the weight of evidence.2. The Court below erred in law and prejudiced the Constitutional right to fair hearing of the Appellant as enshrined under Section 36(1) of the 1999 Constitution when it non-suited the Appellant’s case in suit No. SS/6/2012 without affording the Appellant the Opportunity of addressing it on the order so made and this occasioned a miscarriage of Justice.
  10. 3. The Court below erred in law where it declared Exhibit P1 to be a forged document when there was no proof beyond reasonable doubt by the Respondents that Exhibit P1 was indeed a forged document or a Claim that Exhibit P1 be declared a forged document and this occasioned a miscarriage of justice.4. The Court below erred in law when it granted the Counter Clam of the Respondent to the tune of N4,000,000.00 (Four-Million) Naira only being the value of 397 cartons of ASFED and TRAMADOL Drugs when there was no strict proof of same and this occasioned a miscarriage of justice.
  11. 5. The Court below erred in law where it granted the Counter claim of the Respondents in suit No. SS/6/2012 on the basis of purported admissions of the Appellant and in the absence of any proof before the Court below and this has occasioned a miscarriage of Justice.6. The award of the sums of N4,000,000.00 (Four Million) Naira only as a refund for alleged 397 cartons of ASFED and TRAMADOL Drugs by the Court below in favour of the Respondents against the Appellant in addition to the order of N500,000.00 General Damages amount to an award of double compensation in favour of the Respondent which is wrongful in law.
  12. ISSUES FOR DETERMINATION;

  13. The Appellant, nominated a total of four issues for the determination of Court from the six (6) Grounds of Appeal filed. These issues are reproduced as follows;1. Was the Court below right in law to have non-suited the Appellant without affording the Appellant a hearing by way of an address to determine the propriety of the order of a non-suit? (Ground 2).2. Was Exhibit P1 proved beyond reasonable doubt to be a forged document so as to lead to non-suiting the case of the appellant? (Grounds 1 & 3).

    3. Was the decision entered by the Court below on the counter claims of the Respondents correct in law? (Grounds 4 & 5).

    4. Whether the damages awarded by the Court below against the Appellant in favour of the Respondents are justifiable and permissible in law? (Ground 6).

  14. On the part of the Respondents, three (3) issues were nominated for the determination of Court, thus;1. Whether the Plaintiff (now Appellant) proved his case and is entitled to the reliefs sought at the lower Court? (Ground 1). 2. Whether materiel inconsistencies and contradictions in evidence of the Plaintiff’s (Now Appellant) witnesses can be resolved in favour of the Appellants as per Exhibit P1? (Grounds 1, 3)3. Whether the trial Court properly evaluated all evidence adduced towards granting the 1st and 2nd Respondent’s Counter Claim? (Grounds 4, 5 and 6).
  15. The Respondents also filed a Notice of Preliminary Objection directed only at the competence of Ground 3 of the Notice of Appeal and issue 2 formulated there from and argued same at pages 7-10 of the Respondents’ Brief of arguments. The purpose of a Notice of Preliminary Objection, it has been said for the umpteenth time is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418.(back to top?) With this at the background, this Court has carefully observed that the substance of the Notice of preliminary objection raised by the Respondents herein, even though intended to be an objection against the hearing of the Appellants’ Appeal, it is in reality not an objection taken against the hearing of the Appeal as such, but one which merely quarrels with Ground three (3) of the Appellant’s Notice and Grounds of Appeal, which Respondent’s Counsel has variously described as vague, incomprehensible, misleading, at-large, incompetent, academic, moot and hypothetical; and also Issue two (2) formulated there from, which have similarly been described by Respondents.
  16. It would be recalled that the Appellant predicated his Appeal before this Court on six (6) Grounds of Appeal and not just Ground three (3) alone, which the Respondents have picked quarrels with. The Supreme Court, in the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P. 611 had this to say on the subject;“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal…”


  17. See also the case of ADEJUMO vs. OLAWIYE (2014) 12 NWLR (PT.1421) 252 AT 265, where the Supreme Court
    per BODE RHODES VIVOUR, JSC had this to say on the issue;

    “A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”(back to top?)

  18. On the strength of this and relying on several decided authorities on the issue, I hereby find and do hold that the Notice of Preliminary Objection filed by the Respondents, same having not been filed against the hearing of the entire Appeal per se, but solely against the competence of Ground three (3) of the Notice and Grounds of Appeal, is therefore inappropriate in the circumstances of this Appeal and in the opinion of this Court to disturb the hearing of this Appeal on account of the Respondents’ Notice of Preliminary Objection. It would have been a different thing altogether, if the defects spotted with Ground three (3) had permeated the entire Grounds of Appeal and the objection had been taken on the strength of the defects spotted and not just one associated only with a Ground. Assuming again that the objection raised against the Ground three (3) is found to be appropriate and it is subsequently struck out, it would still not have been enough to terminate the hearing of the Appeal. In this connection, and on account of this development, this Court shall without hesitation go ahead and consider this Appeal on its merit while the Notice of Preliminary Objection is dismissed. This, at least is not a situation in which the entire six (6) Grounds of Appeal have been cited as being defective.
  19. It would be recalled that this Court had earlier on stated that the Respondents were equally dissatisfied with the aspect of the lower Court’s judgment which non-suited the Appellant’s action. The Respondents would have rather had the Appellant’s entire action dismissed instead of having it non-suited. For this reason, the Respondents have Cross-Appealed against the decision of the lower Court, filing a lone Ground of Appeal in the process. The lone Ground of Appeal is reproduced here thus;
  20. GROUND;The learned trial judge erred in law when he non-suited the Plaintiffs/Cross-Respondent’s suit instead of outright dismissal.
  21. PARTICULARS:a. That the Plaintiffs/Cross-Respondent failed to prove his claim at the lower Court and consequently the suit should be dismissed and not non-suited.b. That the evidence tendered and material contradictions adduced in the evidence of the Plaintiff’s witnesses cannot and does not entitle the Plaintiffs/Cross-Respondent to the reliefs sought in the substantive suit at the lower Court.
  22. One issue was nominated for the determination of the Cross Appeal thus;Whether the lower Court was right in law to have non-suited the Cross – Respondent instead of dismissing his suit when he failed to prove his case?On the part of the Appellant/Cross-Respondent, this sole issue was promptly adopted and it was on the basis of this issue that learned Counsel to the parties addressed Court extensively, citing a plethora of decided authorities. The Cross-Appeal shall however, be considered at the appropriate time after the determination of the substantive Appeal herein.
  23. The Appellant/Cross-Respondent’s brief of argument dated 11-4-2016 and settled by IBRAHIM ABDULLAHI ESQ., was filed on the same date while the 1st and 2nd Respondents/Cross Appellants’ brief of argument dated the 22-6-2016 was filed on the 27-6-2016 and settled by O. A. U. ONYEAMA ESQ., On the 15-3-2017 at the hearing of this Appeal, learned Counsel for the parties adopted their briefs of arguments along with the briefs filed on account of the Cross Appeal of the parties and urged the Court to resolve the Appeal/Cross-Appeal in favour of their clients.
  24. DETERMINATION OF SUBSTANTIVE APPEAL;

    SUBMISSION OF LEARNED COUNSEL;

    APPELLANTS;

    ISSUE ONE;

  25. Was the Court below right in law to have non-suited the Appellant without affording the Appellant a hearing by way of an address to determine the propriety of the order of a non-suit?
  26. The contention of learned Appellant’s Counsel is that the Court below reviewed the evidence of parties, made specific findings, and suo moto non-suited the Appellant without inviting learned Counsel for the parties to address Court on the issue. He cited the case of OKPALA vs. IBEME (1989) 2 NWLR (PT. 102) 208. According to Counsel, it is an integral part of the entrenched doctrine of fair hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as Amended for the Court to invite Counsel to the parties to address it, where the Court raises an issue Suo motu. Counsel cited the cases of OLUSOLA vs. TRUSTHOUSE PROPERTIES LTD (2010) 8 WLR (PT. 1195) 1 AT 24; COLE vs. MATTINS (1968) 1 ALL LR 161 AT 163; OMOREGBE vs. LAWANI (1980) 12 SCC 164; (1980) 3-4 SC 108; D. AIGBE vs. BISHOP JOHN EDOKPOLOR (1977) 2 S.C. 1 AT 15 -16; OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT 70) 370 at 396 PARAS E – F; AFOLABI vs. ADEKUNLE (1983) 14 SCC 398 AT 402.
  27. Counsel also submitted that where a trial ourt wrongly exercises its discretion on the issue of non-suit in the manner stated in this Appeal, the Court of Appeal will allow an appeal from the judgment involving such erroneous exercise of discretion. He cited the case of CLACK vs. ARTHUR ENGINEERING LTD. (1959) 2 Q.B. 211 AT 224 in this regard and urged the Court to resolve this issue in favour of the Appellant.
  28. ISSUE TWO;

  29. Was Exhibit P1 proved beyond reasonable doubt to be a forged document so as to lead to non-suiting the case of the Appellant?
  30. Learned Appellant’s Counsel premised his arguments on this issue with the fact that in all civil cases, the burden of proof is on the party who asserts the existence of certain facts and that this burden is discharged on the preponderance of evidence or on the balance of probabilities. He cited the cases of ITAUMA vs. AKPE-IME (200) 7 SC (PT. 11) AT 24; NBN LTD vs. S.C.D.C. CO. LTD (1998) 5 NWLR (PT. 540) AT 1. Counsel submitted that by the evidence of the PW1 and 2 at pages 77 – 91 of the records and as well as Exhibits P1 – P10, the Appellant was able to discharge this burden of proof. He said that in relation to the Appellant’s reliefs, with the first being a declaratory relief, the Appellant is expected to succeed on the strength of his own case and not on the weakness of the defense. Counsel also argued that the facts before the Court below are that the Appellant had been managing the 1st Respondent-company prior to and after the death of the 2nd Respondent’s husband who was the Chairman of the 1st Respondent.
  31. Counsel said that due to the commitment and loyalty showed by the Appellant to the 1st Respondent’s business activities and the husband of the 2nd Respondent, the 2nd Respondent’s husband left a will which was admitted as Exhibit P9 in, which he categorically stated in Clause 7, that all his sales boys and girls engaged by him including the Appellant, should be allowed to continue in the management of his business and that in due course be adequately compensated and remunerated from the proceeds of his assets.
  32. In accordance with the terms of Exhibit P10, Counsel said that Jude Onwuelingo and the 2nd Respondent were appointed Administrators and Executors of Exhibit P9 and that by Clause 5 of the said exhibit, Jude Onwuelingo and the 2nd Respondent were given the mandate to administer together and/or carry or join in carrying on for so long as they shall think fit and discontinue up any business of which Gabriel Onwuelingo has interest in either alone or in partnership with other persons. Counsel argued that Exhibit P9 specifically gives directives for a partnership agreement to be entered into by the Chairman of the 1st Respondent in his last will via Exhibit P9 and that via Exhibit D1 Gabriel Onwuelingo had an interest in the 1st Respondent.
  33. It was also the contention of Counsel that Exhibit P1 is a partnership agreement, which from the evidence of the PW1 and PW2 was entered into between the 1st Respondent and the Appellant and was witnessed by the PW2 who signed as a witness thereto. He said that the facts relating to Exhibit P1 were derived from the evidence of the PW1 in chief and as well as the DW2 during cross-examination at pages 102 lines 22 – 24 of the records given to J. E. Ochidi, Esq. (the legal adviser to the 1st Respondent) who drafted Exhibit P1. Counsel referred Court to the written statements of J. E. Ochidi, Esq. tendered by the Respondents at the Court below as Exhibit D2 at page 95 lines 10 -11 of the records. He also argued that the DW2 never denied that the facts stated in Exhibit P1 were not correct as he agreed with the fact that she paid N100,000:00 to J. E. Ochidi Esq., for the drafting of Exhibit P1.
  34. According to Counsel, it is late in the day for the Respondents to resile at the Court below from what they did and paid for as represented by Exhibit P1. He cited a number of cases in support of what he termed an admission against interest on the part of the Respondents. See ISO vs. E. O. (1999) 2 WLR (PT 590) AT 204; ATANZE vs. ATTAH (1999) 3 WLR (PT. 596) 647 and AWOTE vs. OWODUNNI (No.2) (1987) 2 NWLR (PT. 57) 367. Counsel further posited that Exhibit P1, the said partnership agreement was signed by J. E. Ochidi Esq. and that the Respondents never disputed the fact that Exhibit P1 bears the signature of J. E. Ochidi Esq.
  35. In respect of the 2nd Respondent’s claim that the signature on Exhibit P1 is not hers and in Paragraph 15(g) of the amended statement of defense where the Respondents contended that Exhibit P1 is a forged document, Counsel argued that in law forgery is a criminal allegation and that the standard of proof is one beyond reasonable doubt. He referred to Section 135(1) of the Evidence Act, 2011 and the case of AKINBONI vs. AKINBONI (2002) FWLR (PT 126) 926 AT 937. According to Counsel, there was no specific finding made by Court and/or analysis of the ingredients of the offence of forgery before coming to the conclusion that Exhibit P1 was a forged document. Counsel argued that there cannot be a valid pronouncement in respect of same without being satisfied that the necessary ingredients of the offence of forgery have been established beyond reasonable doubt which is the standard required by law.
  36. Counsel further argued that all efforts made by the Respondents at the Court below to deny Exhibit P1 were all done in vain because it was tendered without objection and therefore can safely be utilized by this Court. Moreover, he argued that written documents cannot be varied by oral evidence. See FOJULE vs. FMB (2001) FWLR (PT. 36) 893 AT 906; NNUBIA vs. A. G. RIVERS STATE (1999) 3 NWLR (PT. 593) 82. He also told this Court that from the evidence of the PW1 and PW2, and as well as the DW2, it is clear that the Respondents decided to renege from the contents of Exhibit P1 after they have entered into same for reasons best known to them and that in law where a party has manifested his intention to renege from an agreement that becomes a breach of contract, which has the effect of a discharge. See WESTEC vs. S.S.G. (2001) 1 WRN 133 AT 135. Counsel contended that it is not a defense that the contract exhibited in Exhibit P1 can be discharged simply because the Respondents are suspicious of the commission of any purported offence. He cited the case of GUINNESS NIG PLC vs. NWOKE (2001) FWLR (PT. 36) 981 AT 995.
  37. It was also argued that the Court below in non-suiting the claims of the Appellant, not only decided that Exhibit P1 was forged, but also that the exhibit had no seal of the 1st Respondent, pursuant to Sections 71 and 77 of the Companies and Allied Matters Act (CAMA). On account of this position, Counsel said that the operative phrase in Sections 71 and 77 of the CAMA on the use of Company’s seal is; “may be made” and that this connotes discretion and not compulsion. On the failure or neglect to affix its seal, being one that was permissive or discretionary, going by the tenor of Sections 71 and 77 of the CAMA, Counsel argued that same cannot be used against the Appellant who had acted on the basis of Exhibit P1 since January 2011 until he fell out with the Respondents, who originally had the responsibility of affixing the seal and who, not only failed to do so, but also breached the contents of the exhibit.
  38. It was the argument of Counsel that the Respondents, having benefited from the investment of the Appellant made pursuant to Exhibit P1, cannot now decide to renege from their financial commitments to the Appellant, who had been engaged with the company since his days as a teenager and that for the late Chairman of the 1st Respondent to have remembered the Appellant in his will i.e., vide Exhibit P9 is an indication of the value placed on the services of the Appellant based on the contribution he had made to the 1st Respondent’s fortunes.
  39. It was therefore submitted on behalf of the Appellant that the PW1 gave un-contradictory evidence in relation to the facts giving rise to his cause of action and how Exhibit P1 was entered into and breached by the Respondent. Counsel urged this Court to believe the evidence of the PW1 which was not contradicted. He cited the cases of OMO vs. JUDICIAL SERVICE COMMITTEE OF DELTA STATE (2000) 7 S. C. (PT II) 1; TOKIMI vs. FAGITE (1999) 10 NWLR (PT. 624) 590 CA; CONTRACT RESOURCES (NIG) LTD vs. WENDE (1998) 5 NWLR (PT. 549) 243; PHMB vs. EDOSA (2001) 12 NWLR 183. He also submitted that in so far as Exhibit P1 was never proved to be forged there was no basis for non-suiting the claims of the Appellant, who had indeed successfully proved his claims and which should have entitled him to the judgment of the Court below.
  40. ISSUE THREE;

  41. Was the decision entered by the Court below on the counter claims of the Respondents correct in law?
  42. The submission of Appellant’s Counsel on this issue is that the Respondents are not entitled to the grant of their counter claims despite the declarations made by the Court below at pages 200 – 201 of the records. Counsel argued that a counter claim is an independent claim or a cross action, which must be proved at the hearing of a case. He cited the case of OBMIAMI BRICKS & STONE NIG. LTD vs. ACB LTD (1992) 3 NWLR (PT. 229) 260. He drew attention to the fact that by Paragraph 14 of the amended counter claim the Respondents pleaded and sought to reply on documents to show that Jude Onwuelingo is not the company secretary of the 1st Respondent, but that no such documents were tendered and that the Court below ought therefore not to have speculated on the documents. Counsel queried how a Court of law could have relied on documents not tendered in evidence. He cited the case of OPARAJI vs. OHANU (1999) 9 NWLR (PT. 618) 290.
  43. For this reason Counsel contended that Paragraph 14 of the amended counter claim is deemed abandoned. He also cited the cases of OFONDU vs. NIWEIGHA (1993) 2 NWLR (PT. 275) 253 and TYUM vs. ATAUJI (1996) 8 NWLR (PT. 496) 675; OKOROMAKA vs. ODIRI (1995) 7 NWLR (PT. 408) 411.
  44. It was further submitted by Counsel that going by the facts of this case, the said Jude Onwuelingo as an administrator of the business concern of the late Gabriel Onwuelingo has the authority to direct the Appellant on what to do. And that in essence, while the Appellant is saying that Jude Onwuelingo had the authority to direct him as the 1st administrator vide Exhibits P7 & P8, the Respondents are saying the contrary. Counsel added in this regard, that Exhibit P7, which speaks volumes on the issue, is in conformity with Exhibits P8, P9 and P10.
  45. It was also submitted by Counsel that the Court below in finding that the Appellant admitted the counter claims of the Respondents at pages 199 – 200 of the records misapplied the law in the process as he contended that in law, to locate an admission the entire defense to the counter claims has to be considered and not just a section of it. See the case of MOBIL PRODUCING NIG ULTD vs. ASUAH (2002) FWLR (PT. 107) 1196 AT 1223 R 15. In any event, Counsel also contended that the principal reliefs of the Respondents in their amended counter claims relate to declaratory reliefs, and that the implication in law, is that declaratory reliefs are not granted on admissions but must be established by credible evidence by the Respondents before the Court below and that this requires that a party succeeds on the strength of his case and not on the weakness of the defense or admissions.
  46. Learned Counsel further contended that for reliefs Nos. 3, 4, 5, 6 and 7 of the Respondents amended counter claims to succeed, the Respondents must have to establish relief No. 2 of the counter claims because reliefs Nos. 3, 4, 5, 6 & 7 of the Respondents amended counter claims revolves round and depends upon the success of relief No. 2 of the said counter claims.
  47. It was also argued that Reliefs 2 and 3 of the counter claims of the Respondents granted by the Court below are in the nature of special damages, which must not only be specially pleaded but must also be particularized and proved strictly. He referred Court to the cases of CAMEROON AIRLINES vs. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512 AT 544; BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT. 311) 276.
  48. Counsel, in this regard contended that throughout the length and breadth of the amended statement of defense and counter claims of the Respondents, the Respondents did not itemize the cost of each cartoon of Asfed and Tramadol drugs for which judgment was entered in favour of the Respondents by the Court below in the sums of Four Million (N4,000,000:00) Naira Only. Counsel reiterated his earlier submission on the issue that special damages must strictly be proved with credible evidence and that without such proof; no special damages can be awarded. See the cases of ALHAJI OTARU & SONS LTD vs. IDRIS (1999) 6 NWLR (PT. 606) 330; USUJI vs. ISIONCHA (1989) 3 NWLR (PT. 111) 623.
  49. In the same token, Counsel contended that Paragraphs 17, 18, 19, 20 and 21 of the Respondents’ counter claims were not proved as no evidence was led in respect of same. He said that in law, an averment in pleadings on which no evidence is called is deemed to have been abandoned. See the cases of YUSUF vs. OYETUNDE (1998) 12 NWLR (PT. 579) 483 and ODUNSI vs. BAMGBALA (1995) 1 NWLR (PT. 374) 641 AT 656 – 657 PARAS H-A.
  50. Similarly, Counsel contended that the claims of anticipated profit by the Respondents in their counter claims is a special one which cannot, but must be strictly proved or the party claiming loses out. He cited the case of A.G. OYO STATE vs. FAIRLAKES HOTEL LTD (NO. 2) (1989) 5 NWLR (PT. 121) 255 where no such evidence was adduced before the Court below but yet the Court below entered judgment on the counter claims of the Respondents. Counsel further argued that no proof was offered as to whether the 2nd Respondent was the Managing Director of the 1st Respondent and he urged the Court to resolve this issue in favour of the Appellant and against the Respondents.
  51. ISSUE FOUR;

  52. Whether the damages awarded by the Court below against the Appellant in favour of the Respondents are justifiable and permissible in law?
  53. On account of the award of damages against the Appellant at pages 200 – 201 of the records amounting to the sums of Four Million (N4,000,000:00) Naira Only being the value of 397 cartoons of Asfed and Tramadol drugs and also another award of the sums of Five Hundred Thousand (₦500,000:00) Naira Only as damages against the Appellant, Counsel argued that these amounted to double compensation in law. It was further argued that where a successful party has been compensated for all the losses suffered by him by an award of special damages, no room existed for a further award of general damages in favour of the same party, as to do so would amount to an award of double compensation which is not permissible in law. Counsel cited the cases of EHOLOR vs. IDAHOSA (1992) 2 NWLR (PT. 223) 323 AT 340; SOYINKA vs. INAOLAJI BUILDERS LTD (1991) 3 NWLR (PT. 177) 21 AT 33; UDOH vs. ASUQUO (2006) ALL FWLR (PT. 307) 1122 AT 1143 EZEAGO vs. CHANEYERE (1978) 6-7 S.C. 1. Counsel finally urged this Court to resolve this issue in favour of the Appellant and against the Respondents.
  54. SUBMISSION OF LEARNED COUNSEL; 1ST AND 2ND RESPONDENTS;


    ISSUE ONE;

  55. Whether the Plaintiff (now Appellant) proved his case and is entitled to the reliefs sought at the lower Court?
  56. Learned Counsel for the Respondents contended that in civil cases, the burden of proof is on the party who asserts the existence of a given set of facts as he would be required to prove the existence of those facts. In the instant Appeal, he contended that the burden of proof falls upon the Plaintiff (now Appellant) that it is his duty to establish the existence of the facts he asserts and that he must succeed on the strength of his case and not the weakness of the defendant. Counsel cited the cases of CIVIL DESIGN CONSTRUCTION NIG. LTD vs. SCOA NIG LTD (2007) 2 SC 195; N.B.C vs. OKWEJIMINOR (1998) 8 NWLR (PT. 561) 295 AT 308.
  57. See also Section 136(1) of Evidence Act 2011 in this regard. Against the backdrop of this submission, Counsel argued that the onus to prove the particulars of a valid legal contract (as per Exhibit P1) between himself and the 1st Respondent rested squarely on the shoulders of the Appellant; that the failure to discharge this burden is crucial to his case. Counsel urged this Court to so hold.
  58. It was further contended by Counsel that a Plaintiff in an action for breach of contract as in the instant case must discharge both the legal and evidential burden of proof of the existence of a valid legal contract between himself and the 1st Respondent and that the evaluation of relevant and material evidence thereafter and the ascription of probative value to the evidence adduced are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. He also contended that where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. Counsel cited the case of MAERSK vs. WINLINE (NIG) LTD (2015) ALL FWLR (PT. 808) 672.
  59. In the instant case, Counsel submitted that the trial Court after receiving the testimonies of the Plaintiff and the PW2 (Mr. Osita Onwuelingo) rightly found same incredible and inconsistent and that in evaluating the strength of the evidence of the Plaintiff’s witnesses at page 196 -197 of the Record of Appeal found as follows;”On my consideration of the evidence adduced by the plaintiff in this case and PW2, there appear clear, some contradictions in the evidence as it pertains to where Exhibit P1 was signed by parties. There are obvious contradictions with regards to the presence of Barr J.E. Ochidi when Exhibit P1 was purportedly signed. From Exhibit D2 being the statement made by Barr Ochidi, he made it clear that he only prepared the document but the said document in the Exhibit P1 was never signed in his presence neither in his office nor anywhere else. In effect, how the signatures in the Exhibit P1 came about, he did not know anything. This is then a total and unequivocal denial that the Exhibit P1 was signed in Ochidi’s Chambers as testified by Plaintiff, also on the other hand, Mr. Osita’s testimony that same Exhibit P1 was signed at the 1st Defendant’s head-office situate at Atiku Road here in Sokoto. Therefore, in the face of very obvious contradictory evidence of the Plaintiff and PW2, the Exhibit P1 must suffer some disability in the circumstance of this case. I accept that Barr J. E. Ochidi did not witness the signing of the Exhibit P1 and by any extension it put to test, the authenticity of the existence of Exhibit P1 in this case.”
  60. Learned Counsel further drew the Court’s attention to the findings of the Court below at page 197 line 20, which Counsel said, served to shed more light on the impropriety of Exhibit P1 when it held thus;“In such, I disbelieve the Plaintiff’s evidence but believe the 2nd Defendant herein that she did not sign the Exhibit P1. It is to be seen further if she did sign Exhibit P1, why was the seal of 1st Defendant not affixed? Was it that 2nd defendant forgot to affix seal when there is no evidence from the Plaintiff to that effect? The absence of the 1st Defendant’s seal to give legal force to Exhibit P1 is nothing other than a product of conspiracy involving the Plaintiff, PW2 and Mr. Jude.”
  61. As a result of this position, Counsel contended that Exhibit P1 did not meet the requirements of the ompanies and Allied Matters Act (CAMA) and the question of proof of execution of documents where a company is a party to the transaction, thus;1. That Exhibit P1 is without the seal of the 1st Defendant.2. That there is no prima facie proof of the names and identity of persons who signed as Director and Secretary of the 1st Defendant in Exhibit P1.

    3. That the 2nd Respondent out-rightly denied ownership of the purported signature on the ‘Director’ or Secretary column in Exhibit P1.

    4. More so, the plaintiff and PW2 gave contradictory and different evidence on the propriety of the purported signatures on Exhibit P1.

  62. Counsel relied on Section 71 of the CAMA and the dictum of UWAIFO, J.C.A (as he then was) in UBA LTD vs. S.G.B LTD (1996) 10 NWLR (PT. 478) 381 AT 388, where he held inter alia;“I am at a loss to know why the Learned Judge relied on Mr. Ogunleye’s evidence and so called Power of Attorney (Exhibit A) WITHOUT THE COMPANY SEAL as admitted in evidence, there is no authority in that document.”
  63. Learned Counsel further argued that Courts are bound to reject or bound not to give any credence to any document wherein the signature is not accompanied by name and description of the identity of the person purporting to have signed the said document. He invited the attention of this Court to closely scrutinize Exhibit P1 and for the Court to see that there is no description of the name of the purported Director and Secretary that signed on behalf of the 1st Respondent. Counsel cited the cases of C.I.C. LTD vs. OKOLI (2007) Vol. 43. 36 at 54 – 55, lines 15 – 5 (CA); FIRST BANK PLC vs. UWADA (2003) FWLR (PT. 151) 2001. Learned Counsel further contended that the 2nd Respondent out-rightly denied signing Exhibit P1 and gave evidence to the fact that the 1st Respondent did not at anytime authorize anybody to execute Exhibit P1 on its behalf.
  64. On the issue of whether the Appellant is entitled to 15% profits of the 1st Respondent and Eighty Five Thousand (N85,000.00) Naira as outstanding balance of the Appellant’s monthly upkeep from November 2011 to December, 2011, Counsel described the claim as outrageous and queried how the Appellant, who did not subscribe to the memorandum and articles of association of the 1st Respondent or purchase any quantity of its shares could be said to be entitled to the 1st Respondent’s profits and dividends, which is a limited liability company with a share capital? By seeking to place reliance only on Exhibit P1, in claiming these sums, Counsel described this as an attempt at gold digging created by crass ignorance of the law on the subject. He referred to Section 27 of the CAMA.
  65. Counsel also contended that there is no evidence before the lower Court which substantiates the Appellant’s claim that the Respondents made profit to the tune of one hundred million (N100,000,000.00) Naira in 2011 financial year and that he is entitled to 15% of same. Against this position, Counsel referred to the evidence of the 2nd Respondent in her evidence at page 101 of the Records of Appeal where she vehemently denied and stated that the Appellant is not entitled to the outrageous sum claimed as upkeep and opined that there is no contrary evidence to impeach this particular fact.
  66. It was therefore submitted by Counsel that the settled position of the law is that civil cases are proved on preponderance of evidence and balance of probability, which the Appellant failed in the circumstances of this case to do. He cited the case of ELIAS vs. ONTO-BARE (1982) 5 S.C. 25, and AKINLEMIBOLA vs. C.O.P (1976) 6 S.C. 201 on the issue. It was therefore submitted that the Court below properly discharged the duty placed on it to evaluate the evidence adduced before it in reaching its decision, which Counsel described as impeccable and unimpeachable evaluation.
  67. Counsel further submitted that a Court or judge has the inherent power or jurisdiction to scrutinize, analyze, interpret, examine and make findings and inferences from documents tendered and admitted by the Court. He cited the cases of AGBABI vs. KABIRU (2010) ALL FWLR (PT. 544) 132 @ 154; OHIA vs. OHIA (2003) FWLR (PT.177) 955 @ 966. It was therefore also argued that the trial Court who physically heard the testimonies of the Plaintiff and the PW2 on the one hand and the defense witnesses on the other hand was right when it came to the conclusion that Exhibit P1 does not bind on the Respondents and as well, null and void and that same cannot be relied upon for any purpose as same has no probative and evidential value. See page 198 and 200 (lines 17 and 18) of the Record of Appeal.
  68. Learned Counsel also submitted that once a Plaintiff in an action fails to prove his claim or fails to discharge the legal and evidential burden required of him, the Court is bound to dismiss his case and not make an order of non-suit. Counsel cited the case of OYOVABIARE vs . OMAMURHOMU (1999) 10 NWLR (PT. 621) 23 AT 34-35 (SC) in respect of this point and adopted his submissions on issue one (1) above in support of this argument. See also the cases ofOKOYE vs. NWANKWO (2014) 15 NWLR (PT. 142) 131; ERINFOLAMI vs. OSO (2011) LPELR 15357. He also submitted in addition that the Appellant has failed to discharge his evidential burden and as well failed to prove his case at the lower Court and he urged this Court to so hold.
  69. ISSUE TWO;

  70. Whether material inconsistencies and contradictions in evidence of the Plaintiff (Now Appellant) witnesses can be resolved in favour of the Appellant as per Exhibit P1.
  71. Learned Counsel under this issue contended that the position of the law is that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements made. He cited the cases of CONSOLIDATED BREWERIES PLC AND ANOR vs. AISOWIEREN (2002) FWLR (PT. 116) 949 and GIRA vs. STATE (1996) 4 NWLR (PT. 443) 375; OWOR vs. CHRISTOPHER & ORS (2008) LPELR-CA/PH/EPT/ 82/2008 in support.
  72. Learned Counsel also cited the Supreme Court in the case of EYO vs. ONUOHA (2001) NSCQR 45 (PT. 1) 2010 AT 214 where it was held inter alia;“For an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross – examination attack and debunk it. This may be done by the witness reneging from the testimony he has given or contradicting himself by falsifying his earlier evidence. On the other hand, this evidence of one witness being contradicted by the evidence of another witness from same divide may weaken the overall effect of the evidence.”
  73. In expatiating on the issue, Counsel stated that where a party in an action gives contradictory evidence, the Court will not embark upon the speculation of which of the contradicting evidence to prefer as the Court is expected to simply ignore/reject both pieces of evidence. See WHYTE vs. JACK (1996) 2 NWLR (PT. 41) 407; FATUNBI vs. OLANLOYE (2004) ALL FWLR (PT. 225) 150 (2004) 9 MJSC 161; JOLAYEMI vs. ALAOYE (2004) ALL FWLR (PT. 217) 584; FATUGA vs. AINA (2008) ALL FWLR (PT. 398) 394 AT 400.
  74. Against the backdrop of these submissions of Counsel he also contended that the Court below was not only right, but was bound to reject the entire evidence of the PW1 and the PW2 as they were materially inconsistent on the issue of the signing of Exhibit P1, which represents the foundations of the Appellant’s claim at the lower Court. Counsel argued that in view of the contradictory nature of the evidence of the PW1 and PW2 on the question of the signing of Exhibit P1, the Court below was constrained not to pick and choose evidence for the Appellant, whose case totally crashed upon his admittance of his unworthiness and untruthfulness before the lower Court. On account of this position, Counsel referred Court to pages 196 -197 of the Record of Appeal, where the Court below evaluated the strength of the Appellant’s witnesses on the issue and found that they were materially inconsistent on the propriety of Exhibit P1.
  75. According to Counsel, the question of the signing of Exhibit P1 became the fact in issue as the 2nd Respondent out rightly denied signing the Exhibit; when she maintained this position in averments in her oral testimony before the Court below and even under cross examination. Furthermore, Counsel argued that the testimony of the DW1 (ASP Mohammed Sambo) also gave credence to the testimony of the 2nd Respondent in this regards, therefore shifting the burden of proof of the signing of Exhibit P1 on the Appellant who tendered it and intended to rely on same.
  76. In demonstrating the contradiction in the case of the Appellant in his evidence at page 84 from lines 16, Counsel reproduced these as follows;“At the police station, Exh. P1 was shown to the 2nd defendant in this case. The 2nd defendant’s reaction when shown to her, said it was forged. The 2nd defendant said both the contents and her Signature were forged. Barr. J. E. Ochidi witnessed the signing of Exh. P1. I know J.E. Ochidi was investigated by the police. I heard J.E. Ochidi made a statement to the police but I did not see it…Lines 26

    Mr. J. E. Ochidi was there when I signed Exh. P1 in my office. The 2nd defendant signed her signature on that date 6/7/2011. One Osita Onwuelingo was present.”

  77. In contrast to the above evidence of the Appellant, Counsel referred to the evidence of the PW2 (Osita Onwuelingo) at page 89 from lines 25, which he said contradicted the Appellant as follows;“I maintained I witnessed all the signatures appended on the Exhibit P1. But did not witness the signatures appended on page 1 of the Exhibit P1. The signatures were done at Gabbizilingo Office, Atiku Road here in Sokoto. Barr Ochidi was not in the office in Atiku Road, when we appended our signatures.”
  78. In further contrast to the above contradictions of the Appellant and the PW2 (Osila Onwuelingo), Counsel referred to the evidence of Barr. J.E. Ochidi in Exhibit D2, which was tendered at the lower Court, where he emphatically denied witnessing any of the parties signing Exhibit P1. Against this background, Counsel submitted that the Appellant and his witness (the PW2) are not only on a voyage of grave contradictions, but have also failed to discharge the evidential burden of proof on the crucial issue of the propriety of the due execution of Exhibit P1, which is the subject matter and fulcrum of the Appellant’s case at the lower Court.
  79. Still on the question of the contradiction of evidence in the Appellant’s case as Plaintiff, Counsel contended that the worst of these is at page 83 lines 14 and 15 of the Records of Appeal wherein the Appellant as PW1 admitted that the evidence he gave before Court is not the truth! Based on this, Respondents’ Counsel contended that the entire submissions of the Appellant before Court, are in the circumstances bound to fail and should be out-rightly rejected for utmost lack of credibility! He cited the case of EZEMBA vs. IBENEME (2004) 14 NWLR (PT. 894) 22, where the Supreme Court per EDOZIE, JSC had this to say:”No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.”
  80. Learned Counsel therefore urged this Court to resolve this issue in favour of the Respondents as the Appellant and his witness (the PW2) in their respective testimonies and evidence failed to discharge the evidential burden of proof required to give them an edge in the case.
  81. ISSUE THREE;

  82. Whether the trial Court properly evaluated all evidence adduced in this case towards granting the counter claim?
  83. Based on the Respondents’ arguments in issues 1 and 2, Counsel submitted that the Respondents discharged the legal and evidential burden of proof required of them to have judgment in their favour in this Appeal. He also restated that the evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified.
  84. He further submitted that where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. Counsel cited the cases of MAERSK vs. WINLINE (NIG) LTD (2015) ALL FWLR (PT. 808) 672 and MOGAJI vs. ODOFIN (1978) 4 SC., 91.
  85. As a result of the foregoing, the Court’s attention was drawn to the undisputed facts both in the pleadings and the oral evidence that the Plaintiff carried away 397 cartons of drugs from the Respondents’ warehouse in Kano, Kano State and that apart from this, the Appellant also admitted both in his pleadings and cross examination that he carried away the said drugs under the instruction of Mr. Jude Onwuelingo, who is neither a Principal Member, nor Shareholder of the 1st Respondent. According to Counsel, Exhibit D1 proves this material fact which also shows that Jude Onwuelingo is not authorized in law to execute Exhibits P1 and P7 on behalf of the 1st Respondent.
  86. On the question of the Appellant’s admissions that he carted away drugs belonging to the 1st Respondent, it was contended that facts not disputed or denied are deemed admitted and that what is admitted or deemed admitted do not require to be proved. Counsel referred Court to Section 123 of the Evidence Act and cited the case of MUTAIRU vs. MADAM ATOKE (2011) – CA/L/48/99 where this Court per BAGE, JCA (as he then was) held thus-“An admission is a principle deeply enshrined in our jurisprudence that what is admitted do not require to be proved….”
  87. Counsel further referred to the case of B.O.N LTD vs. AKOREDE (1995) 1 NWLR (PT. 374) 7 6 @ 746, where this Court per SALAMI, JCA held thus;”A fact is deemed to be admitted if it is neither specifically denied nor admitted by implication having regard to the other facts averred in the pleadings, the Appellant filed a reply to the statement of defense as well as defense to counter-claim but failed or neglected to deny any of the two paragraphs particularly Paragraph 6….” See also ACHIMUGU vs. MINISTER FOR FCT & ANOR (1998) 11 NWLR (PT. 574) 467 @ 477.
  88. Apart from the above cited cases, Counsel drew attention to Exhibit D1, which he categorically said reveals that JUDE ONWUELINGO is neither a Shareholder nor a Principal Officer of the 1st Respondent, and therefore not authorized in law to execute Exhibits P1 and P7 on behalf of the 1st Respondent. In the absence of evidence therefore, to weigh against this position, Counsel argued that minimal proof is all that is required for the Defendants as counter-claimants to make out their case. See AGAGU vs. DAWODU (supra); OMOREGBE vs. LAWANI (1980) 3-4 SC 108; ODULAJA vs . HADDARD (1973) 11 SC 35; NWABUOKU vs. OTTIH (1961) 2 SCNLR 232.
  89. On the question of whether the Court below was right in granting the counter claims of the Respondents for special damages against the Appellant, Counsel drew attention to the submissions of the Appellant on issues 3 and 4 of the Appellant’s brief of argument and cited the decision of this Court in ALUMINIUM MANUFACTURING CO. OF NIG. LTD. vs. VOLKSWAGEN OF NIGERIA LTD (2010) LPELR- CA/L/414/2003, where this Court per NWODO, JCA held thus;“Special damages are those damages which are given in respect of any consequence reasonably and probably arising from the breach complained of; they impute pecuniary losses which have crystallized in terms of cash and values before trial. Such special damages must be specifically pleaded and proved strictly. What is required to establish special damage is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head.”
  90. As a result of the foregoing, Counsel disclosed that the DW1 and the 2nd Respondent in their respective testimonies in Court gave evidence to the fact that the value of the drugs which the Appellant carried away without the consent of the 1st Respondent is Four Million (N4,000,000.00) Naira. See page 94 of the Record of Appeal for DW1’s evidence. See also page 100 for the 2nd Respondent’s evidence. According to Counsel, this fact was never impeached nor denied in evidence either in the Appellant’s pleading or evidence in Court. It was further stated by Counsel that it is also in evidence that the Appellant categorically stated under cross examination that the value of the 397 cartons of Asfed and Tramadol drugs belonging to the 1st Respondent, which he carried away and has not returned them to the 1st Respondent was N4 million. See page 85 of the Record of Appeal. According to Counsel the Appellant did not in his pleadings deny the value ascribed to the drugs under contention.
  91. Learned Counsel therefore contended that where facts are not disputed or denied they are deemed admitted and that what is admitted or deemed admitted do not require to be proved. He cited the case of MUTAIRU vs. MADAM ATOKE (supra) and referred to Section 123 of the Evidence Act. He also referred Court to Paragraphs 4 and 17 of the Amended Counter Claim as can be seen in the additional records of Appeal. Counsel cited the cases of OBASUYI vs. BUSINESS VENTURES LTD (2000) 5 NWLR (PT. 658) 32; NGILAN vs. MOTHERGAT LTD (1999) 13 NWLR ( T 636) 629; OSHINJINRIN & ORS vs. ALHAJI ELIAS & ORS (1970) ALL NLR 158 in support.
  92. In further answer to the submissions of learned Counsel to the Appellant in his arguments with respect to issues 3 and 4 of the Appellant’s brief of argument, Counsel told this Court that it is both pleaded facts and the evidence of 2nd Respondent that the unlawful carrying away of the N4 million worth of drugs without returning the proceeds of sale gravely affected the profits and businesses of the 1st Respondent, and that they suffered financial losses and reputational damages, as the 1st Respondent could not meet up with market demands owing to a large reduction on expended stocks without any accrued income thereto. He referred Court to Paragraph 17 of the Amended Statement of Defense at page 56 of the records of Appeal and 2nd Defendant’s evidence at Page 15 of the records of Appeal.
  93. On the question of whether the lower Court was right in granting the counter claim of the Respondents for general damages against the Appellant, learned Counsel contended that general damages are those damages which the law implies in every breach and in every violation of a legal right; that it is the loss that flows naturally as it is generally presumed by law. Counsel added that the manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. He cited the cases of NDINWA vs. IGBINEDION (2001) 5 NWLR (PT. 705) 140 AT 150; OSUJI vs. ISIOCHA (1989) 3 NWLR (PT. 111) 633; ODULAJA vs. HADDAD (1973) 11 SC 357; OMONUWA vs. WAHABI (1976) 4 SC 37; LAR vs. STIRBUGASTALDI LTD. (1977) 11 – 12 SC and ACME BUILDERS LTD vs. KADUNA STATE WATER BOARD (1999) 2 NWLR (PT. 990) 288.
  94. It was further contended that the Court below was right to have granted the award of Five hundred thousand (N500,000.00) Naira against the Appellant as general damages suffered by the Respondents, owing to the fact that the Appellant failed and/or refused to return the said drugs or the proceeds from the sale of the drugs to the 1st Respondent, whose business has suffered financial losses as a result of the Appellant’s action. Counsel urged this Court to resolve this issue in favour of the Respondents.
  95. RESOLUTION OF SUBSTANTIVE APPEAL;

  96. The first issue nominated in this Appeal dealt with the question of whether it was proper for the Court below to have non-suited the Appellant’s claims without first affording the parties a hearing by way of Counsels’ address to determine the propriety of the order before it is made. This is even more so when it is realized that it was the Court below that raised and that has sought to resolve the issue suo motu. The Appellant had asked this Court to strike down the lower Court’s order of non-suit on account of this perceived lapse. Appellant’s Counsel cited a number of authorities in support of his contention, some of which are the cases of OLUSOLA vs. TRUSTHOUSE PROPERTIES LTD (2010) 8 WLR (PT. 1195) 1 AT 24; COLE vs. MATTINS (1968) 1 ALL LR 161 AT 163; OMOREGBE vs. LAWANI (1980) 12 SCC 164; (1980) 3 – 4 SC 108.
  97. Coincidentally, the Respondents have also urged this Court to make an order striking down the lower ourt’s order of non-suit and their arguments on the issue, shall however not be taken at this point, until the time of the consideration of the Cross Appeal on the issue where learned Counsel to the parties have proffered far more fuller arguments for the consideration of this Court. Suffice this to say, however, the position of the law in response to the contention of the Appellant is that where an order of non-suit is entered, failure to hear parties by the trial Court before the order is made would render such an order liable to be struck down. See the cases of CRAIG vs. CRAIG (1976) N.M.L.R. 52; BAKARE ELUFISOYE vs. SAMUEL ALABETUTU (1968) N.M.L.R. 299 AT 301; D. AIGBE vs. BISHOP JOHN EDOKPOLOR (1977) 2 S.C. 1 AT 15 -16; OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT. 70) 370 AT 396.(back to top?)
  98. Consequently, the aspect of the judgment of the Court below delivered on the 25-11-2013, by the High Court of Sokoto State, in Suit No. SS/6/2012 and in connection only with the Court’s order non-suiting the Claims of the Appellant is hereby struck down. However, what is to become of the fate of the Appellant’s claims shall, as earlier on stated be finally determined at the time of the consideration of the Cross-Appeal filed in this proceeding.
  99. Under the second issue nominated by the Appellant, what was contended before this Court was that the Respondents needed a higher standard of proof having made allegations of the commission of the crime of Forgery in a civil proceeding against the Appellant. Learned Appellant’s Counsel argued that the 2nd Respondent had claimed that the signature on Exhibit P1 is not hers and in addition, that in Paragraph 15(g) of the amended statement of defense, the Respondents alleged that Exhibit P1 is a forged document. It was therefore argued by Counsel that in law forgery is a criminal allegation and that the standard of proof is one beyond reasonable doubt. He referred to Section 135(1) of the Evidence Act, 2011 and the case of AKINBONI vs. AKINBONI (Supra) in support. According to Counsel, there was no specific finding made by the Court below on the issue and on the ingredients of the offence of forgery before coming to the conclusion that Exhibit P1 was a forged document.
  100. In resolving this issue, the situation calls for a clinical examination of Section 135(1) of the Evidence Act, Cap. E14 LFN, 2011, which provides as follows:SECTION 135(1);“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
  101. This issue, in the opinion of this Court, and without necessarily mincing words is completely without merit. “Forgery” is not directly a fact in issue in the case. Sections 4 and 5 of the Evidence Act Cap. E. 14 LFN, 2011 defines a fact in issue as including those facts necessary in order to prove or disprove; to establish or refute a case. They are facts necessary by the law for the Plaintiff in a civil action to establish his claim and those the Defendant must prove in order to make out his defense. They are those, which by the pleadings are said to be in dispute. In short, those upon which the parties seemed to have joined issues.

  102. It is precisely for this reason that an admitted fact is not a fact in issue. See the case of OLUFOSOYE vs. OLORUNFEMI (1989) 1 NWLR (PT. 15) 26. Generally, where facts are not in dispute, they cannot be said to be facts in issue. See UGWUNZE vs. ADELEKE (2008) 2 NWLR (PT. 1070) 148. I have carefully examined the pleadings of the parties in this case and the issue of “Forgery” or any other crime cannot be said to have arisen in this case. Section 135(1) of the Evidence Act only applies where there is a specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defense as the case may be. See the case of NWOBODO vs. ONOH & ORS (1984) 1 S.C. 1 AT 40. See also the case of A. S. E. S. A vs. EKWENEM (2001) FWLR (PT. 51) 2034.(back to top?)
  103. The fact that the Respondents reported the carting away by the Appellant of 397 cartons of Asfed and Tramadol drugs belonging to the 1st Respondent, and which he has not returned and the denial of the 2nd Respondent that the signatures on Exhibit P1 was hers, does not necessarily mean that the Respondents have grounded or based their defense directly on issues of criminal conduct. The Respondents’ case in accordance with their Amended Statement of Defense is completely based on legal issues relating to Partnership/Apprenticeship and/or Company matters.
  104. In the case of IKOKU vs. OLI (1962) 1 ALL NLR (PT. 1) 194, UNSWORTH, F. J. delivering the Judgment of the Federal Supreme Court said at page 199:“Counsel for the Respondent in reply to this ground of appeal submitted that Section 137(1) of the Evidence Act means an issue raised in the pleadings and no crime was put in issue by Paragraph 3 of the Statement of claim. The allegation was that the Appellant had maliciously prosecuted the Respondent and falsity is not necessary ingredient in the allegation…the provisions of Section 137(1) were considered by this Court in the case of SUNDAY E. OSO VS. CHIEF FESTUS OKOTIE EBOH (FSC 407/1959) where we held that the issue of a crime must arise on the pleadings. We have not however, previously considered the scope of the sub-section. In my view, the sub-section only applies where there is a specific allegation of a crime in pleadings, so that the commission of a crime can properly be said to be the basis or foundation of the claim or defense as the case may be….”
  105. Usually, in a case where the allegation of the commission of a crime is pleaded, a party may nevertheless succeed in his claim without necessarily proving the crime, as long as the pleaded allegation of crime does not form the basis or foundation of the claim or defense in the said action. The aspects of the pleading, which alleges the commission of a crime could always be regarded and treated as a mere surplus-sage in pleadings and generally disregarded as unnecessary averments.
  106. The observations of LORD DENNING, L. J. in ARAB BANK vs. ROSS ( 952) QBD 216 AT 229 aptly captures the position when he said:“Under the rules of pleadings, as I have always understood them, a pleader who had pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply in the more limited ones.”
  107. Herein lies a matter in which the Respondents as Defendants did not go out of their way to make allegations of the commission of the crime of Forgery against the Appellants, but had merely defended themselves against the Appellant’s action as Plaintiff and in the process, had to state what was needed to be disclosed to ground their Defense. Issues, therefore, not having been joined between the parties on the alleged commission of the crime of Forgery, I therefore hold the view that the issue of the commission of the crime of Forgery, or any other crime for the matter cannot under any stretch of imagination be said to be a fact directly in issue in this case and I so hold. To therefore require the Respondents to discharge the burden of proving Forgery against the Appellant would be highly unnecessary. Little wonder therefore, the Court below batted no eyelids whatsoever on the issue. The standard required for the Respondents in establishing their defense to succeed is that of a balance of probabilities, this being a civil matter as enunciated by the Supreme Court in the case of KARIMU OLUJINLE vs. BELLO ADEAGBO (1988) LPELR – 2622 (SC) and a host of other cases. The second issue is resolved in favour of the Respondents.
  108. Under the third issue what was nominated by the Appellant for the determination of this Court has to do with the correctness or otherwise of the Court’s grant of the Respondent’s counter claims. The Respondent’s counter claim, it is important to state here is hinged on the allegation of the Appellant’s carting away of 397 cartons of ASFED and TRAMADOL drugs from the Kano branch office of the 1st Respondent valued in the sum of Four-Million (N4,000,000.00) Naira and sundry other claims. In seeking to unravel the correctness or otherwise of the lower Court’s grant of the counter claim of the Respondents, it must be borne in mind that the Appellant admitted both in his pleadings and under cross-examination that he carried away the said drugs belonging to the 1st Respondent under the instructions of one Mr. Jude Onwuelingo. Perhaps, the question that readily begs to be answered here is: was Mr. Jude Onwuelingo, a Principal Member or Shareholder of the 1st Respondent, and who was therefore in a position to authorize the Appellant to cart the drugs away from the 1st Respondent’s stores?
  109. In resolving this issue at the lower Court, this was how the learned trial judge, in his evaluation of the evidence of the Respondents on the issue at page 199 lines 8 handled it;“In the case at hand, there is evidence from the 2nd Defendant and supported by DW1 the evidence of ASP Mohammed Sambo that Drugs worth 4 million were carted away from Kano from the defendants’ warehouse allegedly, on the instruction of Mr. Jude to the Plaintiff. The Plaintiff in evidence admitted this under cross-examination. In Exhibit P7, it is obvious the Plaintiff has been acting on the instructions of Mr. Jude Onwuelingo who is not the Managing Director of the 1st Defendant but the 2nd Defendant. It’s here observed that neither in pleading nor in oral evidence was this issue contested.”
  110. Generally, the position of the law as it has been decided in several cases on the subject is that it is not the function of the Appellate Court to substitute its own views for those of the trial Court, particularly where the issues depend on the credibility of witnesses as in the instant case. It is only when the trial judge has failed to properly evaluate the materials before it that the Appellate Court will in the interest of justice set aside the lower Court’s decision. See OKUNZUA vs. AMOSU (1992) LPELR-2531 (SC); IRIRI & ORS vs. ERHURHOBARA & ANOR (1991) LPELR-1536 (SC).(back to top?)
  111. Furthermore, the learned trial judge, in evaluating the evidence of the Respondents in proof of their counter claim at page 200 line 8 of the printed records had this say on the issue;“The learned Plaintiff Counsel had submitted in his written address that looking at the principal relief which is declaratory in nature, it is not granted on admission and that they must be established. While it is true, that declaratory relief/s may not be granted on admission, the case under consideration is different. The defendants herein through overwhelming evidence made available before this Court, the Exhibit P7 left no one in doubt that the defendants have established their case and I so hold accordingly.”
  112. Apart from these, having taking a very careful and calm view of the evidence of the parties at the Court below and the evaluation of evidence carried out by the learned trial judge, I am unable to agree with the Appellant that a proper evaluation of the evidence adduced by the parties was not carried out. The Appellant’s case is inundated with strings of admissions and had left the Court below and as well as this Court with no options, other than in deciding in favour of the Respondents with respect to the issues at stake dealing with the counter claim of the Respondents. The third issue is also resolved in favour of the Respondents.
  113. On the fourth issue dealing with the question of the award of damages, it was the contention of Appellant’s Counsel that the award of damages against the Appellant amounting to the sums of Four Million (N4,000,000:00) Naira Only being the value of 397 cartoons of Asfed and Tramadol drugs and also another award of the sums of Five Hundred Thousand (₦500,000:00) Naira Only as damages against the Appellant, amounted to double compensation in law; that after a successful party has been compensated for all the losses suffered by him by an award of special damages, no room existed for a further award of general damages in favour of the same party, as to do so would amount to an award of double compensation which is not permissible in law. Counsel cited a number of cases some of which are the cases of EHOLOR vs. IDAHOSA (1992) 2 NWLR (PT. 223) 323 AT 340; SOYINKA vs. INAOLAJI BUILDERS LTD (1991) 3 NWLR (PT. 177) 21 AT 33.
  114. As it relates to the grouse of the Appellant that the grant of the Respondents’ claim for general damages in the sum of N500,000.00 was inappropriate, is simply misconceived. The position of the law is that general damages, when averred as having been suffered, the law will presume it to be the direct, natural or probable consequence of the act complained of by the party at the receiving end of the transaction except that the quantification of what is to be awarded thereof is at the discretion of the Court. See the cases of YALAJU-AMAYE vs. A.R.E.C. LTD (1990) LPELR-3511(SC); OSHINJIRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR-2799 (SC); CAMEROON AIRLINES vs. OTUTUIZI (2011) LPELR- 827 (SC), where the Apex Court per RHODES-VIVOUR, JSC had this to say on the issue;
    “…General damages are thus losses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved. See UBN LTD vs. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR (PT. 421) 558. General damage is awarded by the trial Court to assuage a loss caused by an act of the adversary.”(back to top?)

  115. Here is a matter in which the Respondents were said to have suffered losses owing to the fact that the Appellant failed and/or refused to return 397 cartons of ASFED and TRAMADOL drugs he carted away or the proceeds from the sale of the drugs to the 1st Respondent, whose business was said to have suffered financial losses as a result of the Appellant’s action. The position of the law is as stated by the Apex Court in the case of ELIOCHIN (NIG) LTD. & ORS vs. VICTORIA MBADIWE (1986) 1 NWLR (PT. 14) 47 where the Court held that if special damages are claimed in addition to general damages, in an action special damages will be awarded if strictly proved in addition to general damages. It is the view of this Court, in the instant case that the award of special damages along with that of general damages by the Court below does not in any way amount to double compensation. See also the case of ODIBA vs. AZEGBE (1998) 16 LRCN 4605 AT 4606, where it was held that where special damages have been strictly proved, the Respondent is also entitled to aggravated damages.(back to top?)
  116. In the final analysis, this Appeal fails and it is accordingly dismissed with cost assessed as N100,000.00 against the Appellant and in favour of the Respondent.
  117. DETERMINATION OF CROSS APPEAL;


    SOLE ISSUES FOR DETERMINATION;

  118. Whether the lower Court was right in law to have non-suited the Cross – Respondent’s claims instead of dismissing his suit when he failed to prove his case.
  119. LEGAL ARGUMENT OF COUNSEL; CROSS APPELLANT’S COUNSEL;

  120. It is the contention of learned Counsel under this issue that once a Plaintiff has failed to prove his claim; that is to say, fails to discharge the legal and evidential burden required of him in proving his case, the proper order for the Court to make, is one dismissing his claims out-rightly and not the grant of an order non-suiting his claims. Counsel cited the case of OYOVABIARE vs. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23 AT 34-35 (SC). On account of this contention, Counsel also adopted his submissions under issues 1 and 2 of the Respondent’s Brief of argument filed in the substantive Appeal. In further support of this position, Counsel referred Court to the observations of PETER-ODILI, JSC in OKOYE vs. NWANKWO (2014) 15 NWLR (PT.142) 134. He also cited the case of ERINFOLAMI vs. OSO (2011) LPELR-15357, which Counsel argued is in consonance with the instant case and where this Court held thus;“Where a plaintiff manifestly contradicts himself and fails to prove his case on the balance of probability or preponderance of evidence, his case would be thrown out notwithstanding the fact that the Defendant did not prove his case.”
  121. It was further argued by Counsel that an order of non-suit may be made in any one of the following circumstances to wit;1. Where a plaintiff is unable to prove his case and;2. Where on the evidence before the Court, neither party will be entitled to judgment. See OLUSOLA vs. TRUST
    HOUSE PROPERTIES LTD (2010) 8 NWLR (PT. 1195) 1 on this issue.
  122. On account of this position, Counsel contended that the learned trial judge of the Court below erred and breached the Cross-Appellants’ rights of fair hearing as the Cross-Appellant was never invited to address the Court on the propriety of non-suiting the Cross-Respondent’s case. Counsel argued that upon the final evaluation of this case, the Cross Respondent as Plaintiff failed to prove his case before the lower Court and that same is tantamount to being thrown out while the Cross-Appellants claims are entitled to an order of dismissal. In the instant case and in support of this position, Counsel drew attention of this Court to the findings of the Court below at page 198 (line 23) where the Court held thus;“In the final analysis, the plaintiff cannot be seen to be relying on Exhibit P1 herein to succeed. He has failed in this case…”
  123. Against the backdrop of this position, Counsel submitted that the appropriate order to make where the Court below has held that the Plaintiff failed to prove his case as the Court did at page 198 line 23, is to dismiss his claims and not an order non-suiting same. Counsel urged this Court to so hold. It was further contended that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements he made. He cited the cases of CONSOLIDATED BREWERIES PLC AND ANOR vs. AISOWIEREN (2002) FWLR (PT. 116) 949; GIRA vs. STATE (1996)4 NWLR (PT. 443) 375; OWOR vs. CHRISTOPHER & ORS (2008) LPELR CA/PH/EPT/182/2008; EYO vs. ONUOHA (2001) NSCQR 45 (PT. 1) 201 AT 214. With regards to the situation where a party gives contradictory evidence, it was argued that the Court will not embark upon the speculation of which of the contradicting pieces of evidence to prefer as the Court will simply ignore/reject both pieces of evidence. See WHYTE vs. JACK (1996) 2 NWLR (PT. 41) 407; FATUNBI vs. OLANLOYE (2004) ALL FWLR (PT. 225) 150; JOLAYEMI vs. ALAOYE (2004) ALL FWLR (PT. 217) 584; FATUGA vs. AINA (2008) ALL FWLR (PT. 398) 394 AT 400.
  124. As a result of the submissions made here above, Counsel contended that the Court below was right and is bound to reject the entire evidence of PW1 and PW2 as they were materially inconsistent on the issue of the signing of Exhibit P1 which is the subject-matter of the Cross-Respondent’s claim at the lower Court. In view of this position, Counsel argued that this Court is constrained not to pick and choose evidence for the Cross-Respondent, whose case totally crashed and collapsed upon his admission of his unworthiness and untruthfulness before the lower Court.
  125. It was further argued by Counsel that the Court below in evaluating the strength of the evidence of the Cross – Respondent’s witnesses at pages 196 -197 of the Records of Appeal found that they were materially inconsistent on the propriety of Exhibit P1, which represented the fulcrum of the subject matter of the Cross Respondent’s suit. On the question of the signing of Exhibit P1, Counsel argued that it became the fact in issue as the 2nd Cross – Appellant out-rightly denied signing it and maintained this position in averments and her oral testimony before the Court below and even under cross examination. In addition, it was argued that the testimony of DW1 (ASP Mohammed Sambo) gave credence to the testimony of the 2nd Cross-Appellant, such that the burden of proof of signing he Exhibit shifted and rested on the Cross-Respondent who tendered the Exhibit with the sole aim of relying on it.
  126. Apart from this, Counsel disclosed that the Cross-Respondent in his evidence at page 84 from lines 16 contradictorily stated as follows;“At the police station Exh. P1 was shown to the 2nd defendant in this case. The 2nd defendant’s reaction when shown to her, said it was forged. The 2nd defendant said both the contents and her signature were forged. Barr. T. E. Ochidi witnessed the signing of Exh. P1. I know J.E. Ochidi was investigated by the Police. I heard J.E. Ochidi made a statement to the Police but I did not see it…Lines 26

    Mr. J. E. Ochidi was there when I signed Exh. P1 in my office. The 2nd defendant signed her signature on that date 6/7/2011. One Osita Onwuelingo was present.” (Underlined, that of Counsel for emphasis)

  127. Learned Counsel also argued that in contrast to the above line of evidence of the Cross-Respondent, the PW2 (Osita Onwuelingo) at page 89 from lines 25 contradicted the Cross-Respondent thus;“I maintained I witnessed all the signatures appended on the Exhibit P1. But did not witness the signatures appended on page 1 of the Exhibit P1. The signatures were done at Gabbizilingo Office, Atiku Road here in Sokoto. Barr Ochidi was not in the office, Atiku Road, when we appended our signatures.” (Underlined, that of Counsel for emphasis)
  128. Learned Counsel also drew attention to a further contrast to the above contradictions of the evidence of the Cross-Respondent and that of PW2 (Osita Onwuelingo), when J. E. Ochidi Esq., in Exhibit D2, emphatically denied witnessing any of the parties sign Exhibit P1. Counsel submitted that the Plaintiff and his witness (the PW2) failed to discharge the evidential burden of proof on the propriety of the execution of Exhibit P1 which is the subject matter and fulcrum of the Cross-Respondent’s case at the lower Court.
  129. At the height of the spate of contradictions in the case of the Cross Respondent, Counsel referred Court to his evidence at page 83 lines 14 and 15 of the Records of Appeal wherein the Cross-Respondent as PW1 admitted that the evidence he gave before the Court below does not represent the truth of the matter. As a result of this, Counsel argued that with such a piece of evidence, the Cross-Respondent’s evidence before the Court, in the circumstance is bound to fail and should out-rightly be rejected for utmost lack of credibility! He cited the case of EZEMBA vs . IBENEME (2004) 14 NWLR (PT. 894) 22. On the strength of the foregoing, Counsel urged this Court to resolve this sole issue in favour of the Cross-Appellants as the Cross Respondent as Plaintiff and his witness (the DW2) in their respective pieces of evidence failed woefully to discharge the evidential burden of proof required in the circumstances of this case. He further urged this Court to set aside the order of non-suit made by the Court below and in its place substitute an order dismissing the Cross-Respondent’s suit at the lower Court.
  130. CROSS-RESPONDENTS’ COUNSEL;

  131. In the opening arguments of learned Cross-Respondent’s Counsel, he adequately identified the gravamen of the contention of the Cross-Appellants’ Cross Appeal in this matter, which he succinctly gave as the Cross Appellants’ dissatisfaction with the lower Court’s order non-suiting the Cross Respondent’s claims rather than making an order of an outright dismissal upon the Cross-Respondent’s failure to discharge the burden of proof placed on it as Plaintiff. Counsel also acknowledged that the propriety of the order of non-suit made by the Court below is made a specific ground of appeal in the substantive Appeal of the Appellant/Cross Respondent and that parties joined issues in their respective briefs. According to Counsel therefore, if for any reason or reasons, this Court finds in favour of the Appellant/Cross Respondent in the substantive Appeal, then a consideration of the Cross Appeal of the Respondents/Cross Appellants will become otiose, mute and an academic exercise in the circumstance. Counsel cited no authorities to back up that submission. He also argued that the law is that Courts are always enjoined to refrain from engaging in academic exercises.
  132. On the propriety of the order of non-suit instead of an order of dismissal, Counsel submitted for the Appellant/Cross Respondent that a non – suit is an order, which terminates or determines a Claimant’s case without a decision on the merit. He further said that an order of non-suit is made where there is no satisfactory evidence before the Court entitling either the Claimant or the Defendant to the judgment of the Court. Counsel cited the case of OKPALA vs. IBEME (1989) 2 NWLR (PT. 12) 208; OLUSOLA vs. TRUSTHOUSE PROPERTIES LTD (2010) 8 NWLR (PT. 1195) 1 AT 21 – 22.
  133. Learned Counsel also contended that there are no hard and fast rules about when to enter a non-suit as every case will depend on its own merits. He cited the case of F.B.N. PLC vs. OKON (2010) 15 NWLR (PT. 1215) 57 AT 72. He said in addition that it is the justice of the case that determines whether to make an order of non-suit or not as it is a discretionary power of Court requiring that the party complaining of such exercise of discretion is to show that same was wrongfully exercised. Counsel cited the case of MANDILAS & KARABERIS LTD vs. ORIDOTA (1972) 7 NSCC 137; (1972) 2 SC 47, where the Supreme Court per LEWIS, JSC had this to say:”Now we must first of all reiterate what we have had cause to say in many previous appeals namely that each case must be decided on its own facts in determining whether the action should be non-suited or dismissed. The principle is clear however that in making the determination it is a discretion of the Court and it must accordingly be exercised judiciously, but it is in all cases for the person appealing against the decision of the trial Court to show to us that the discretion of that Court has been wrongly exercised.”
  134. Learned Counsel further argued that by non-suiting the claims of the Appellant/Cross-Respondent, the Respondents/Cross-Appellants have not displayed or specifically showed whether the order made has occasioned a miscarriage of justice. He therefore submitted for the Appellant/Cross-Respondent that the justice of the case demands that an order non-suiting the claim of the Plaintiff, rather than one for dismissal is the appropriate order to make in the circumstances of the case. Counsel urged this Court to dismiss the Cross-Appeal with substantial cost and resolve the lone issue formulated for the determination of the Court against the Respondents/Cross-Appellants.
  135. RESOLUTION OF CROSS-APPEAL

  136. The sole issue nominated was whether the lower Court was right in law to have non-suited the Cross-Respondent’s claims as Plaintiff rather than dismissing his suit when it was obvious that he failed to prove his claims. The gravamen of the Cross-Appellant’s argument is that once a Plaintiff has failed to prove his claims; that is to say, fails to discharge the legal and evidential burden required of him in proving his case, the proper order for the Court to make, is one dismissing his claims out-rightly and not the grant of an order non-suiting his claims. Counsel cited a number of cases, one of which is the case of OYOVABIARE vs. OMAMURHOMU (supra).
  137. The settled position of the law is that dismissal of action is appropriate where Court is satisfied that the Plaintiff could not prove his claim. See the cases of EJIOFOR vs. ONYEKWE (1972) 12 SC 171; GREEN vs. GREEN (1987) 3 NWLR (PT. 61) 480. The consequences, however, of failure to prove a case instituted in Court is dismissal, which is the appropriate order to make and not one non-suiting the case. This Court in the case of IBEME vs. OKPALA & ANOR (1986) 1 QLRN 172 AT 175 per BELGORE, JCA (as he then was) stipulated that where a Plaintiff had put before the Court all his case and nothing in issue between the parties by virtue of the pleadings is left uncontested at the trial, and the Court finds the Plaintiff has failed to prove his case in toto, the order to make is one of dismissal and not non-suit. This decision followed the position taken by the Apex Court in the case of IKORO vs. SAFRAP (NIG) LTD (1977) 2 SC 123 AT 127.(back to top?)
  138. The question that should therefore, be addressed at this stage is: whether in view of the state of pleadings and the evidence adduced at the Court below, it can be said that the Court’s decision in non-suiting the Cross-Respondent’s claims was the appropriate order to have been made in the circumstances of this case? It is rather glaring that the Cross-Respondent’s case as Plaintiff at the Court below is somewhat riddled with material contradictions and inconsistencies. In seeking to establish its case as to the genuineness of Exhibit P1 which formed the fulcrum of the Cross-Respondent’s case at the Court below, the evidence of the PW1 and the PW2 were materially at conflict on the issue of the signing of xhibit P1.
  139. A graphic demonstration of the spate of the discrepancies in the evidence of the Cross-Respondent as Plaintiff is apposite in the circumstances of this Cross-Appeal where the Cross-Respondent in his evidence as the PW1 at page 84 from lines 16, had this to say; “At the police station, Exh. P1 was shown to the 2nd defendant in this case. The 2nd defendant’s reaction when shown to her, said it was forged. The 2nd defendant said both the contents and her Signature were forged. Barr. J. E. Ochidi witnessed the signing of Exh. P1.
  140. “I know J.E. Ochidi was investigated by the police. I heard J.E. Ochidi made a statement to the police but I did not see it…

    Lines 26;

    Mr. J. E. Ochidi was there when I signed Exh. P1 in my office. The 2nd defendant signed her signature on that date 6/7/2011. One Osita Onwuelingo was present.”

  141. But on the part of Mr. Osita Onwuelingo, who testified as the PW2 at the Court below, at page 89 from lines 25 in his testimony materially contradicted the Cross Respondent in the following language when he said;“I maintained I witnessed all the signatures appended on the Exhibit P1. But did not witness the signatures appended on page 1 of the Exhibit P1. The signatures were done at Gabbizilingo Office, Atiku Road here in Sokoto. Barr Ochidi was not in the office, Atiku Road, when we appended our signatures.”
  142. There were yet others, for instance, the evidence of J. E. Ochidi Esq., in Exhibit D2, which was tendered at the lower Court and where he denied witnessing any of the parties signing Exhibit P1, contrary to the evidence of the Cross-Respondent. I therefore cannot help but be in agreement with learned Counsel for the Cross-Appellant that the Cross-Respondent’s case at the Court below lacked credibility and ought to have been rejected on that ground. There were still scores of other instances of discrepancies at page 83 lines 14 and 15 where the Cross-Respondent, brazenly admitted and was recorded by the Court below as such, when he said; “I believe the evidence I gave before this Court is not true”. It is important to note that although some damage control was done on the part of the Cross-Respondent under Re-examination, I cannot help but be utterly bound by the observation of the Supreme Court in the case of EZEMBA vs. IBENEME (2004) LPELR-1205 (SC), where the Supreme Court per EDOZIE, JSC had this to say:”No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.”
  143. Against the backdrop of these positions, the Court below was bound to reject the entire evidence of the Cross-Respondent as it was constrained not to pick and choose evidence for the Cross-Respondent whose case totally crashed upon his admittance of his unworthiness and untruthfulness before the lower Court in the face of tons and tons of discrepancies. I am in agreement with learned Counsel for the Cross-Appellant that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements made. I cannot once again help but be utterly bound by the Supreme Court in the case of EYO vs. ONUOHA (2001) NSCQR 45 (PT. 1) 2010 AT 214 where it was held inter alia;
    “For an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross – examination attack and debunk it. This may be done by the witness reneging from the testimony he has given or contradicting himself by falsifying his earlier evidence. On the other hand, this evidence of one witness being contradicted by the evidence of another witness from same divide may weaken the overall effect of the evidence.”(back to top?)

  144. This Court is also in agreement with learned Cross-Appellants’ Counsel that where a party gives contradictory evidence, the Court will not embark upon the speculation of which of the contradicting evidence to prefer as the Court is expected to simply ignore/reject both pieces of evidence. I am unable to be persuaded in any way that the riotous and contradictory evidence of the Cross-Respondent as Plaintiff is capable of weighing in favour of the Cross-Respondent. I see the contradictions and discrepancies as fundamental and fatal to the case of the Cross-Respondent. It is instructive to note that the question of the signing of Exhibit P1 became the fact in issue when the 2nd Respondent denied signing the exhibit; when she maintained this position in averments in her oral testimony before the Court below, even under cross examination.
  145. In addition to these, the testimonies of DW1, one ASP Mohammed Sambo also gave credence to the testimonies of the 2nd Cross-Appellant in this regard. The burden of proving that Exhibit P1 was duly executed between the parties therefore shifted on the Cross-Respondent who tendered it and sought to rely on it to establish its case. But the contradictions and discrepancies inherent in the Cross-Respondent’s case at the Court below completely knocked the bottom out of the case of the Cross-Respondent, such that I am simply unable to agree that Court below made the proper order when it non-suited the claims of the Cross-Respondent rather than out rightly dismissing it. In the final analysis, while the substantive Appeal fails, the Cross-Appeal succeeds and the aspect of the judgment of the Court below dealing with the order of non-suit, even though already set aside at the time of the determination of the substantive Appeal, that order made setting aside the lower Court’s order of non-suit is hereby replaced with one dismissing it in its entirety, while the grant of the Cross-Appellants’ counter-claims in the substantive Appeal is affirmed.
  146. For the avoidance of any doubt, it is FURTHER ORDERED AS FOLLOWS;1. The substantive Appeal fails and it is accordingly dismissed with cost assessed as ₦100,000.00 in favour of the Respondents against the Appellant.2. The Cross-Appeal succeeds and it is accordingly allowed.

    3. Consequently, the Order of the Court below in which the claim of the Plaintiff/Appellant/Cross-Respondent was non-suited, is hereby set aside and same is replaced with an Order of outright dismissal FORTHWITH.

    4 . The lower Court’s order granting the Defendants/Respondent’s/Cross Appellant’s counter claim is hereby affirmed.

    5. Parties to bear their respective costs on account in respect of the Cross Appeal.

  147.  
    MUKHTAR, J.C.A.:

  148. I had the privilege of a preview of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with the lucid reasoning therein and the conclusion that the main appeal is lacking in substance and dismissed, while the cross appeal has merit and is accordingly allowed. I subscribe to all the orders made in the judgment inclusive of the one as costs.
  149.  
    SHUAIBU, J.C.A.:

  150. I was privileged to have read before now the draft of the lead judgment of my learned brother, Frederick O. Oho, JCA. I entirely agree with his reasoning and conclusion in dismissing the substantive appeal and allowing the cross-appeal, inclusive of the consequential orders thereby made. My noble lord has adequately covered all the issues arising for determination in both the substantive appeal and the cross-appeal. I have nothing useful to add but by way of emphasis, I wish to refer to the decision of the Supreme Court in IBEKWE V. NWOSU (2011) 9 NWLR (Pt. 1251) 1 at 17 where it was decided that a non-suit denoted that the plaintiff failed to prove something which was essential to his case or that the case which he had proved was different from that which he had pleaded. In the instant appeal, the plaintiff before the lower Court failed woefully to discharge the legal and evidential burden required of him in proving his case. Thus, the appropriate order for the Court to make was to dismiss the case out-rightly and not to grant an order non-suiting the claim.
  151. For the above and the fuller reasons contained in the lead judgment, the substantive appeal lacks merit and is accordingly dismissed. I too allow the cross-appeal and abide by all the consequential orders.