POPOOLA v EDOBOR & ORS.

POPOOLA v EDOBOR & ORS.


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

ON TUESDAY, 11TH APRIL, 2017


Appeal No: CA/IB/194/2011

CITATION:

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM,J.C.A.

MODUPE FASANMI,J.C.A.

CHINWE EUGENIA IYIZOBA,J.C.A.


BETWEEN

SOA POPOOLA ESQ.
(Appellant)

And

MR. EBENEZER EDOBOR
MR. AHAOLU
IBADAN ELECTRICITY DISTRIBUTION CO. PLC
ENGR. KOLAWOLE ONI
ENGR. HAMZAT
MRS OJEARO
ENGR. M.O. OYEWOLE
MONDAY OJEKEIDE
(Respondents)


PRONOUNCEMENTS

A. ACTION
1. Declaratory Reliefs – Duty on a plaintiff seeking a declaratory relief

The claim of the Appellant on this head is declaratory in nature. This being so, the burden of proof rests squarely on the Appellant who must satisfy the Court that he is entitled to the relief as declaration of rights are not granted as a matter of course. Hence Appellant must rely on the strength of his own case and not on the weakness of the defence. See the case of Okeniyi v. Akanbi (200) FWLR (pt. 84) page 113.”Per FASANMI, J.C.A. read in context

B. APPEAL
2. Interference With Findings of Fact – Situations when an Appellate Court will not be empowered to interfere with the findings of fact of the lower Courts

The findings of fact of the learned trial judge are unassailable and are backed by credible evidence. This Court cannot interfere with the findings of the trial Court. See the cases of Rimi v. INEC (2005) 6 NWLR (pt. 920) page 56; Agbi v. Ogbeh (2006) 11 NWLR (pt. 990) page 65; Fagbenro v. Arobadi (2006) 7 NWLR (pt. 978) page 172 and Ebo v. Amadi (2012) 8 NWLR (pt. 1301) page 69 at 95 paragraphs C – E.”Per FASANMI, J.C.A. read in context

C. EVIDENCE
3. Burden of Proof – On the duty of the party who asserts to prove

The burden of proving a particular fact is on the party who asserts. See Section 136 Subsection 1 of the Evidence Act 2011. The onus is on the person who will fail if evidence on a particular fact was not adduced to prove the assertion.”Per FASANMI, J.C.A. read in context

D. TORT
4. Negligence – Fundamental constituents of the tort of negligence

Appellant’s claim under this head is for negligence. For him to succeed, he must prove a duty of care by the Respondent, that the Respondent breached that duty owed to him and that damage resulted as a result of the Respondent’s breach of duty. See the cases of Adeta v. Nigerian Army (2016) All FWLR (pt. 855) pg 179 at 207 para E-H and Des-Dokubo v. Nigerian Army (2015) LPELR – 25969 (CA), where negligence is defined as carelessness, disregard, default, inadvertence, indifference, inattention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness. Black’s Law Dictionary, 9th Edition also defines negligence as follows:

“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.”Per FASANMI, J.C.A. (Pp. 12-13, Paras. F-E) read in context

5. Defamation Proof of publication as a key ingredient in an action for defamation

In defamation matters, the mere making of the defamatory statement to the Plaintiff does not constitute a cause of action as the defamatory statement must be published to a third party. The reason for this is that defamation does not consist in what the Plaintiff thinks of himself but of the opinion that others hold of him.

Thus, one basic ingredient of defamation whether libel or slander is publication. In other words, the Plaintiff is under a burden to prove that the defamatory statement was published to a third party and the law requires that the third party must not only be named but must also be clearly identifiable and identified. Once a publication is not properly pleaded and proved, the case is bound to collapse. It is publication that gives such a case its cause of action. See the cases of Giwa v. Ajayi (1993) 5 NWLR (Pt. 294) page 433 and Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) page 285 at 297 – 298.”Per FASANMI, J.C.A. read in context

 


LEAD JUDGEMENT DELIVERED BY FASANMI J.C.A.


This is an appeal against the judgment of the Oyo State High Court of Justice in Suit No.1/488/07 delivered on the 3rd of March, 2011, dismissing the claims of the Appellant in its entirety.

The reliefs sought by the Appellant against the Respondents jointly and severally are as follows:

(a) DECLARATION that the Plaintiff’s July, 2005 electricity bill arbitrarily and negligently increased and over billed by N5,000.00, which should be rectified, normalized and reconciled by the Defendants.

(b) DECLARATION that the 1st Defendants statement of 14th March, 2007, at No. 3 Obasa Street, Cemetery/Coca-cola, Ibadan, in the presence and to the hearing of his neighbours, PHCN, lc, staff and others, concerning the Plaintiff in his Profession a calling is defamatory.

(c) DECLARATION that the Defendants acts of removal of the fuse of the transformer and wire from the pole of the Plaintiff’s aforesaid area and connected to his house, electricity supplies, between 13th – 25th May, 2007, respectively, was wrongful, unlawful and unjustified.

(d) AN ORDER, directing the Defendants to write letters of unreserved apology to the Plaintiff.

(e) AN ORDER OF PERPETUAL INJUNCTION, restraining the Defendants, by themselves, servants, agents, privies, colleagues, representative etc, from further defaming, embarrassing, etc, by fictitious, over-billing and wrongfully, unlawfully/unjustly disconnecting the Plaintiff’s area, house/apartment electricity supplies, in any manner, whatsoever.

(f) DAMAGES in the total sum of N302,528,220.00 being Special, General, Punitive, Exemplary/Aggravated damages, for their arbitrary and negligent over billing the Plaintiff’s July, 2005 Electricity bill by N5,000.00, wrongful, unlawful and unjust removal of the fuse from the transformer and wire from the pole of the Plaintiff’s aforesaid area and connected to his house electricity supplies between 13th-25th May, 2007, respectively and slanderous acts, by defamatory words (statements) committed against the Plaintiff by the 1st Defendant’s statement of 14th March 2007, at No 3, Obasa Street, Cemetery/CocaCola Ibadan, in the presence and to the hearing of his neighbours, PHCN Plc staff and others, by falsely accusing the Plaintiff, as an impostor, fraudster, fake, charge and bail lawyer, which caused the Plaintiff to suffer personal and professional degradation, deprivation, embarrassment, loss of patronage, honour, respect, etc, unnecessary litigation expenses, unnecessary spending on petrol & engine oil, damages to food and food items, noxious odour from the spoiled/rotten food/food items and consequently damages.

The brief facts of the case by the Respondents are that the Claimant/Appellant is a Legal Practitioner residing at No. 3, Obasa Street, Cemetery/Coca-Cola Area, Ibadan where he occupies a flat and where he is the user of meter number 720015741 with Account No. 11/ 149/0398-01.

On the 13th of March, 2007, in the course of the performance of his duties, the 1st Respondent and some staff of the 3rd Respondent were at the Appellant’s house to check the payment status of electricity consumers in the neighbourhood with a view to getting defaulters to pay their debt and disconnecting the electricity supplies to the apartments of defaulters. While the Respondent was yet attending to the Appellant’s neighbour, the Appellant came down from his flat upstairs to demand for the identity of the 1st Respondent and his team and the 1st Respondent accordingly identified himself and his team. On hearing that the 1st Respondent and his team were staff of the 3rd Respondent, the Appellant then warned the 1st Respondent and his team not to touch his meter with a threat that if they did, he would sue them and their employers to Court. There was an altercation between the 1st Respondent’s team and the Appellant and when it appeared that the atmosphere was becoming tense, the 1st Respondent’s team left the Appellant’s house without disconnecting his electricity supplies.

Appellant contended that on the 14th of March, 2007, the 1st Respondent called him “a fake and a charge and bail lawyer because genuine lawyers are in Court by this time…” and the Appellant considers such statement as slanderous and defamatory.

The Appellant also contended that on 13th day of May, 2007, the Respondents unjustly and wrongfully removed the fuse of the transformer and the wire from the pole of his aforesaid area and house and consequently disconnected electricity supplies to his flat and the entire neighbourhood between the 13th to 25th May, 2007 on the pretext that some people in the area were owing the 3rd Respondent about Two Million Naira, although the Appellant was not in arrears on his electricity bills. The Appellant claimed that in view of the disconnection of electricity supplies to his flat by the Respondents for 12 days, he had been forced to buy a generator for his household electricity supplies.

The Appellant also claimed the sum of N2.5 million against the Respondents, being the amount demanded by his Solicitors to prosecute the case for him at the lower Court and also claimed severally for other damages which were not proved.

The case proceeded to trial and at the end; the learned trial Judge dismissed the claims of the Appellant in its entirety.

Dissatisfied with the judgment, Appellant filed his original notice of appeal at pages 184-188 of the record on the 23rd of May 2011. Record of appeal was transmitted on the 22nd of Aug. 2011. The amended notice of appeal was filed on 24th of March 2016 but deemed on 13th of April 2016.

At the hearing of the appeal, learned counsel for the Appellant applied to withdraw the affidavit challenging the record filed on 17/5/16. Learned counsel for the Respondent did not oppose the application. Consequently the affidavit filed on the 17th of May 2011 challenging the record was struck out.

Appellant’s brief of argument was filed on 17th of May 2016. Learned Counsel for the Appellant adopts and relies on the arguments in the said brief of argument. He urged the Court to allow the appeal. Learned counsel for the Respondent submits that the Respondent’s brief was filed on 20/12/16. Counsel adopts and relies on the arguments contained in the brief and urged the Court to dismiss the appeal.

Learned counsel for the Appellant distilled five issues for determination thus:

(1) Whether the learned trial Judge was right, by refusing Leg 1, of the Plaintiff’s Claim, paragraph 16 (a), Amended Statement of Claim, by holding that the Plaintiff did not state his Claim, damages suffered and or proved same, having regard to the totality of the evidence (oral and documentary) adduced before the Court, averments in paragraphs 3, 4, 14, 15, and 16.

(2) Whether the trial Judge was right, by not accepting the evidence of PW2 who was present at the scene of incident and confirmed the defamatory statements made by the 1st Defendant against the Plaintiff, for the Plaintiff’s Claim in paragraph 16 (b), Amended Statement of claim, on the grounds that the name of PW3 was not specifically pleaded in paragraph 16 (b) Amended Statement of Claim, he is not a neighbor of the Plaintiff and stated that the Plaintiff and the 1st Defendant were both angry, having regard to the words ’– and others’, pleaded in paragraph 6, Amended Statement of Claim and the totality of the evidence (oral and documentary) adduced before the Court. Grounds 2, 3, 7 and 8.

(3) Whether the trial Judge was right, by relying on the contradictory pleadings in paragraphs 10, 13,15,15,18 and 19, and the totality of the evidence (oral and documentary) adduced before the Court, Grounds 2, 3, 7 and 8.

(4) Whether the learned trial Judge was right, when he refused legs 3, 4 and 5 of the Plaintiff’s Claim, paragraph 16 (c), (d) and (e), Amended Statement of Claim, having regard to the averments in the Amended Statement of Claim, on which evidence were led and documents tendered in Court, Plaintiff’s Counsel Written Address, particularly at pages 64-91 of the Record of Appeal and his finding of facts, as contained in his Judgment. Grounds 4, 7 and 8.

(5) Whether the learned trial Judge was right, by refusing Leg 6 of the Plaintiff’s Claim paragraph 16 (f), Amended Statement of Claim, having regard to the averments in the Amended Statement of Claim, on which evidence were led and documents tendered in Court, Plaintiff’s Counsel Written Address, particularly at pages 64-91 of the Record of Appeal and his finding of facts, as contained in his Judgment.

Learned counsel for the Respondent distilled four issues for determination thus:

(1) Whether the Appellant suffered any injury by virtue of the bill served on him for the month of July, 2005 by which the Appellant claimed to have been overbilled to the tune of N5,000.00.

(2) Whether the Appellant could maintain an action in defamation of character against the Respondents in the circumstances.

(3) Whether there is sufficient evidence before the Court to support the claim that the Respondents removed the fuse from the transformer and wire from the pole of the Appellant’s area that connected electricity supplies to the Appellant’s house.

(4) Whether the Appellant is entitled to damages from the Respondents in the circumstances.

The issues distilled by the parties for determination are virtually the same but couched differently. The issues distilled by the Respondents are clearer and succinct to the controversies between the parties. The appeal will be determined on issues 1-3 formulated by the Respondents for determination. Issue 4 distilled by the Respondents and the Appellant’s issues will be subsumed in issues 1-3 distilled by the Respondents.

Issue One

Whether the Appellant suffered any injury by virtue of the bill served on him for the month of July 2005 by which the Appellant claimed to have been overbilled to the tune of N5,000.00.

Learned counsel for the Appellant submitted that there is ample evidence before the Court that the Appellant’s July 2005 electricity bill was arbitrarily and negligently increased and over-billed by N5,000.00 by the Respondents. He contended that even though the learned trial Judge held that the burden of proving the overbilled N5, 000.00 is on the Appellant, the said burden had been discharged. He submitted that the Appellant pleaded, gave oral evidence and tendered Exhibits A-A3. He submitted that the findings of the learned trial Judge amounted to a miscarriage of justice. He referred to the cases of Imah v. Okegbe (1993) 9 NWLR (pt. 316) page 159 and Anthony Odiba v. Tule Azege (1998) 7 SCNJ page 119-127. Learned counsel for the Appellant urged the Court to resolve issue one in favour of the Appellant.

Learned counsel for the Respondents submitted that the Appellant has not been able to prove that he suffered any injury as a result of the fact of being overbilled by the Respondents. Appellant contended that when he received his July 2005 bill, he discovered that the sum of Five Thousand Naira which had been deducted from his June 2005 bill again reappeared vide Exhibit A3. However upon the receipt of Exhibit A3, the Appellant had complained to the Respondent vide Exhibit B and he paid the exact amount he was owing and ignored the sum of Five Thousand Naira which appeared in Exhibit A3.

He submitted further that DW4 also gave evidence that upon receipt of the Appellant’s complaint vide Exhibit B, the Respondents caused the complaint of the Appellant to be investigated with a view to rectifying the error in the bill. Submitted that Appellant should have awaited the outcome of the investigation before filing his suit at the trial Court. Although the Appellant complained that electricity supplies to his flat was disconnected by the Respondents, there was no scintilla of evidence from the Appellant that the disconnection was a direct consequence of Exhibit A3 or subsequent bills sent to him. Learned counsel for the Respondent urged the Court to resolve issue one against the Appellant.

The claim of the Appellant on this head is declaratory in nature. This being so, the burden of proof rests squarely on the Appellant who must satisfy the Court that he is entitled to the relief as declaration of rights are not granted as a matter of course. Hence Appellant must rely on the strength of his own case and not on the weakness of the defence. See the case of Okeniyi v. Akanbi (2002) FWLR (pt. 84) page 113. Appellant’s main grouse is with his July bill on which the Five Thousand Naira only he paid earlier and which was deducted from his June bill again reappeared. The offensive July bill is Exhibit A3. On the receipt of Exhibit A3, Appellant complained in writing to the Respondents by a letter – Exhibit B and he paid the exact amount he was owing and ignored the Five Thousand Naira only which continued to show in his bill because he had already paid the amount. One wonders what exactly the Appellant’s claim is in regard to the discrepancy in his bill which he stated he ignored and paid what he owed without stating the damage he had suffered in consequence of the discrepancy. DW4 stated in his evidence that Appellant’s complaint had been referred to the credit/account section of the Respondent for necessary action. Although Appellant complained of a disconnection of power supply to his house, he did not state that it was due to the anomaly in his July bill or the subsequent bill sent to him.

The learned trial Judge rightly refused the claim of the Appellant on this head since Appellant missed the point as no damage to the Appellant had been proved in regard to this claim. Appellant’s claim under this head is for negligence. For him to succeed, he must prove a duty of care by the Respondent, that the Respondent breached that duty owed to him and that damage resulted as a result of the Respondent’s breach of duty. See the cases of Adeta v. Nigerian Army (2016) All FWLR (pt. 855) pg 179 at 207 para E-H and Des-Dokubo v. Nigerian Army (2015) LPELR – 25969 (CA), where negligence is defined as carelessness, disregard, default, inadvertence, indifference, inattention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness. Black’s Law Dictionary, 9th Edition also defines negligence as follows:

“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.”

Appellant did not suffer any loss having ignored the overstated sum and paid only the sum he owed on his bill. Appellant has failed to state the exact damage he suffered as a result of the overbilling in Exhibit A3. Issue one is hereby resolved against the appellant.

ISSUE TWO

Whether the Appellant could maintain an action in defamation of character against the Respondents in the circumstances.

Learned counsel for the Appellant submitted that the learned trial judge was wrong by not accepting the evidence of PW3 who was present at the scene of incident and confirmed the defamatory statements made by the 1st Respondent against the Appellant on the ground that the name of PW3 was not specifically pleaded in the amended statement of claim and that he is not a neighbour of the Appellant. He submitted further that the evidence of the Appellant’s witnesses adduced before the Court are admissible, cogent, reliable, credible and more probable than that of the Respondents. He referred to the case of Bello v. Eweka (1981) 1 SC page 101 at 119 – 120.

Learned counsel for the Appellant contended further that the defamatory words allegedly spoken against him by the 1st Respondent achieved the purpose of lowering his person in the estimation of anyone or caused him to be shunned or avoided or in any way expose him to hatred, contempt or ridicule or to convey an imputation to him, disparaging injurious to him in his office, profession, calling, trade or business. He referred to the cases of Salawu Motors House Ltd v. Lawal (2000) FWLR (Pt. 3) page 517 at 530 and Giwa v. Ajayi (1993) 5 NWLR (Pt. 294) page 433.

He submitted that the evidence of the Respondents is full contradictions. He urged the Court to discountenance and not ascribe any probative value to the Respondents’ witnesses’ evidence. He urged the Court to resolve issue two in favour of the Appellant.

Learned counsel for the Respondents submitted that Appellant has not discharged the burden of proof that the 1st Respondent or any Respondent for that matter uttered the alleged defamatory words. DW1, DW2 and DW3, who were present at the scene on the 14th of March, 2007 emphatically denied the fact that 1st Respondent described the Appellant as a fake lawyer, a charge and bail lawyer or in any derogatory manner. Appellant did not specifically mention the name of PW3 as a witness to what transpired between the Appellant and the 1st Respondent in any part of the Amended Statement of Claim which he filed before the Court. Submitted that the failure of the Appellant to state the name of the PW3 in his Amended Statement of Claim or to describe him in such a manner that discloses PW3’s identity is fatal to the claim of the Appellant. Learned counsel for the Respondent urged the Court to resolve issue two against the Appellant.

In defamation matters, the mere making of the defamatory statement to the Plaintiff does not constitute a cause of action as the defamatory statement must be published to a third party. The reason for this is that defamation does not consist in what the Plaintiff thinks of himself but of the opinion that others hold of him.

Thus, one basic ingredient of defamation whether libel or slander is publication. In other words, the Plaintiff is under a burden to prove that the defamatory statement was published to a third party and the law requires that the third party must not only be named but must also be clearly identifiable and identified. Once a publication is not properly pleaded and proved, the case is bound to collapse. It is publication that gives such a case its cause of action. See the cases of Giwa v. Ajayi (1993) 5 NWLR (Pt. 294) page 433 and Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) page 285 at 297 – 298.

Appellant in proving publication of the slanderous statement pleaded in paragraph 6 of his Amended Statement of Claim that:-

“The Plaintiff avers that whilst the 1st Defendant was in the course of his employment and duties as stated in paragraph 5, above by a slanderous statement on the presence and to the hearing of his neighbors the 1st Defendant’s colleagues (PHCN Plc. Staff) and others the 1st Defendant falsely and maliciously stated the following slanderous words concerning the Plaintiff…”

In proof of the pleading, Appellant himself testified and named one Oladipo as one of his neighbours who was present at the scene when the defamatory statement was made. He did not call Oladipo to testify. Instead, he called one Emmanuel Onwubiko who stated that he lives at No. 1 Arulogun Street, Badiya Awosika, Ibadan and a brother-in-law to the Appellant. He gave evidence that he was present on 14/03/2007 when the Appellant and the 1st Respondent were engaged in a heated argument. He stated further that the 1st Respondent said to his hearing that the Appellant was not a lawyer and he was not supposed to be at home that time and that the Appellant is a charge and bail lawyer. This witness also named Mr. Oladipo who lives downstairs and one Mr. Ben as the others who were also present that day.

I have gone through the evidence of PW1 Mr. Ben James at pages 96–97 of the record. There is nowhere the witness gave evidence either in examination in chief or in cross-examination that 1st Respondent made any defamatory statement against the Appellant that Appellant was not a lawyer to his hearing. If any Ben was around when the statements were made, it is definitely not Ben James who is the PW1 in this case but a different Ben which the Appellant did not call.

The learned trial judge rightly found at pages 159 – 160 of the record thus:-

“I wish to point out that the pleadings of the Plaintiff especially paragraph 6 of the Amended Statement of Claim reproduced above does not mention the name of Emmanuel Onwubiko and by the tenour of his evidence the witness is not a neighbor of the Plaintiff nor is he a staffer of the PHCN.

This is because there is no evidence before the Court that Arulogun Street Bodija Awosika is the same with or a neighborhood of Obasa Street Cemetery/Cocacola, Sango, Ibadan where the incident occurred.
In the case of Chief O. N. Nsirim v. C. A. Nsirim (1990) 5 SCNJ 174 at 184 Obaseki JSC as he then was stated the law in this regard to be:

“If the pleadings of the Appellant had shown that the Respondent published the defamatory matter to Tons Fetepigi, PW1 the evidence of PW1 on the issue would have been admissible. If also the pleadings of the Appellant had averred that the Respondent showed Exhibit A the defamatory matter to PW1 the evidence would have been relevant and admissible…this is fatal to the case of the Appellant.”

From the tenor and content of the Judgment quoted from supra not only must the name of the witness be pleaded for his evidence to be admissible, what was published to him must be pleaded as well. The name of Emmanuel Onwubiko not having be pleaded and his address he gave at the trial not having been shown to be a neighbor of the Plaintiff as pleaded make his evidence to be inadmissible. See also A. A. Salaudeen v. M. T. Mamman (2000) FWLR (Pt. 17) 1 at 30.”

Since Appellant did not call Mr. Oladipo and Mr. Ben who were described as neighbours of the Appellant who were present when 1st Respondent uttered the slanderous words as witnesses, there is no evidence of publication of the defamatory statement to a third person. Appellant knew the name of PW3, yet he failed to state his name in his pleadings and he did not give any reason for his failure to state his name in the Amended Statement of Claim.

Appellant on the other hand stated that the defamatory statement was made in the presence and to the hearing of the Appellant’s neighbours and the 1st Respondent’s colleagues. From the evidence on record, it is obvious that PW3 is neither one of the Appellant’s neighbours nor one of the 1st Respondent’s colleagues. Failure of the Appellant to state the name of PW3 in his paragraph 6 of Amended

Statement of Claim or to describe him in such a manner that discloses PW3’s identity is fatal to the claim of the Appellant. Since Appellant did not plead this important aspect in his Amended Statement of Claim, this Court is entitled to conclude that there was in law and fact no publication of the alleged defamation. To me that ends the matter. See the cases of A. A. Salaudeen v. M. E. Mamman (2000) 14 NWLR (Pt. 686) at 85 and Giwa v. Ajayi (1993) 5 NWLR (Pt. 294) page 423 at 433 paragraphs D – F.

Evidence of PW3, Emmanuel Onwubiko therefore goes to no issue. Assuming which will be too much that PW3’s evidence is admissible, PW3 under cross-examination admitted that there was a heated argument between the Appellant and the 1st Respondent that day before he arrived at the scene. He would not know what the Appellant had said to the 1st Respondent before he arrived but he met the two of them exchanging hot words. I am therefore of the view that words spoken in such circumstances will amount to vulgar abuse spoken to each other which is not actionable. Even if the 1st Respondent made the statement credited to him by the Appellant, the statement had not in any way affected the reputation of the Appellant in the estimation of PW3. See the case of Complete Communications Ltd & Anor v. Miss Bianca Onoh (1998) 5 NWLR (pt. 549) pg.197 at 218. Issue two is hereby resolved against the Appellant.

Issue Three

Whether there is sufficient evidence before the Court to support the claim that the Respondents removed the fuse from the transformer and wire from the pole of the Appellant’s area that connected electricity supplies to the Appellant’s house.

Learned counsel for the Appellant submitted that there is ample evidence before the Court that the Respondents disconnected light and removed wire from the pole of the Appellant’s house between 13th – 25th May, 2007 when he was not owing the 3rd Respondent on his electricity bill or in any manner at all. He submitted that the cogent and reliable evidence of a witness on an issue is enough to ground the claim. It is not necessary to be corroborated as the learned trial judge held in regard to the evidence of PW1 and PW2 on removal of the fuse from the transformer of the Appellant’s area and wire from the pole taking the removed wire away. He referred to the case of Woluchem v. Gudi (1981) 5 SC page 291 at 306.

Learned counsel for the Appellant urged the Court to resolve issue three in favour of the Appellant.

Learned counsel for the Respondent submitted that the Appellant has failed to discharge the burden of proof imposed on him by law to prove that the Respondents removed the fuse of the transformer and wire from the pole of his neighborhood between 13th-25th May, 2007 or at any time whatsoever. None of the Appellant’s witnesses was able to give any positive assertion to prove to the trial Court that the Respondents removed any fuse from the transformer of the Appellant’s neighborhood or removed any wire from the pole of the Appellant’s flat. He submitted that all the Respondents witnesses denied disconnecting power from the Appellant’s flat and there was no evidence from the Appellant’s side to rebut the evidence of the Respondent’s witnesses. Learned counsel for the Respondent urged the Court to resolve issue three against the Appellant.

The burden of proving a particular fact is on the party who asserts. See Section 136 Subsection 1 of the Evidence Act 2011. The onus is on the person who will fail if evidence on a particular fact was not adduced to prove the assertion. The onus is on the Appellant to show:

(1) Whether the Respondents or any of them removed the fuse of the transformer serving the Appellants area.
(2) Appellant has to prove that the service wire that connects his flat and supplies electricity thereto was disconnected or removed.

Although PW1 Ben James testified that there was a total blackout between 13th and 25th of May, 2007 in the area where the Appellant lives, he did not make any statement with regard to the removal of the fuse from the area. Mr. Ben James PW1 who was in the team that visited NEPA did not give any evidence regarding the removal of the fuse from the transformer serving the area. Since this is an important aspect of the Appellant’s claim, one would have expected him to lead relevant and cogent evidence through PW1 or any other eye witness on the issue of the removal of the fuse from the transformer. Whatever evidence the Appellant gave regarding the visit to NEPA office about the complaint on the blackout between the 13th and 15th of May, 2007 will be hearsay and not admissible since he was not in the team that visited 3rd Respondent. See Section 77 of the Evidence Act.

1st Respondent denied in very clear terms allegation that the transformer fuse was never removed. The learned trial Judge at pages 167 to 168 of the record found as follows:-“While PW1 Ben James stated that those who were owning NEPA were disconnected and their wires were taken away there is no positive assertion by the Plaintiff throughout the duration of this testimony that his service wire was taken away by the NEPA officials. For the sake of emphasis what he said and which I had earlier referred to is that he was put in darkness for twelve days while others in the neighborhood enjoyed light. From the facts and circumstances of this case I am of the view that the Plaintiff was not owing NEPA at any time to warrant his being disconnected.

That power supply to the Plaintiff’s apartment was disconnected and he was put in darkness between 13th and 25th May, 2007 – for twelve days though he was not owing NEPA.”

The learned trial Judge further found at pages 168 – 169 of the record as follows:-

“But I unable to hold that the service wire from the Plaintiff’s metre was removed as alleged. This is because:

1. There is no positive assertion from the Plaintiff to prove this fact.

2. PW1 Ben James who stated that some persons who were not owing complained that they were disconnected and their wires were removed after the reconnection by NEPA officials on 26/05/2007 did not as he should have done mention the Plaintiff as one of those who so complained.

3. All the Defendants witnesses stated that they did not disconnect power from the Plaintiff’s apartment even when the task force visited the Plaintiff’s building.

Thus I find the Plaintiff has not proved the facts that:

1. The fuse of the transformer serving his area was removed by the Defendants.
2. The service wire of his apartment metre was removed and I so hold.
I however find as a fact that, the area where the Plaintiff resides including his apartment was thrown into darkness for twelve days between the 13th and 25th days of May 1997 and I so hold”.

I agree with the learned trial judge in his findings that Appellant’s claim with regard to fuse removal from the transformer is not established. Issue three is hereby resolved against the Appellant.

The findings of fact of the learned trial judge are unassailable and are backed by credible evidence. This Court cannot interfere with the findings of the trial Court. See the cases of Rimi v. INEC (2005) 6 NWLR (pt. 920) page 56; Agbi v. Ogbeh (2006) 11 NWLR (pt. 990) page 65; Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) page 172 and Ebo v. Amadi (2012) 8 NWLR (pt. 1301) page 69 at 95 paragraphs C – E.

Having resolved the three issues against the Appellant, I am of the view that the appeal is devoid of merit and it is hereby dismissed accordingly. The judgment of the Oyo State High Court of Justice in Suit No. 1/488/07 delivered on the 3rd of March, 2011 is hereby affirmed. Parties are to bear their respective costs.

DONGBAN-MENSEM, J.C.A.:

I have read the draft of the lead judgment prepared by my learned brother, Modupe Fasanmi JCA. I agree with the reasoning and conclusion arrived thereat.

Issue three addresses a technical subject which lies within the expertise of the service providers. Such matters need to be addressed cautiously. However, the learned trial Court found that no evidence was adduced to support the assertion by the appellant of an interruption with the supply of electricity to his quarters. The Court cannot manufacture evidence for a party. I too hereby dismiss this appeal as lacking in merit.

I adopt the order as to cost.

IYIZOBA, J.C.A.:

I read before now the judgment just delivered by my learned brother, MODUPE FASANMI JCA. She has dealt exhaustively with the issues in the appeal.

I also find no merit in the appeal and hereby dismiss same. I abide by the consequential orders of my learned brother in the lead judgment including the order as to costs.