Legalpedia Citation: (2014) Legalpedia (CA) 16411
In the Court of Appeal
Fri Mar 21, 2014
Suit Number: CA/K/352/2004
CORAM
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
ITA G. MBABA
OLUKAYODE ARIWOOLA, JUSTICE, COURT OF APPEAL
ITA G. MBABA
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
OLUKAYODE ARIWOOLA, JUSTICE, COURT OF APPEAL
ITA G. MBABA
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
OLUKAYODE ARIWOOLA, JUSTICE, COURT OF APPEAL
ITA G. MBABA
ITA G. MBABA
OLUKAYODE ARIWOOLA, JUSTICE, COURT OF APPEAL
ITA G. MBABA
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
ITA G. MBABA
THERESA NGOLIKA ORJI-ABADUA, JUSTICE COURT OF APPEAL
OLUKAYODE ARIWOOLA, JUSTICE, COURT OF APPEAL
ITA G. MBABA
PARTIES
AHMED IBRAHIM SHANONO INVESTMENT LTD APPELLANTS
FIRST CITY MONUMENT BANK PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant operated an account with account number 130160912 at the Defendant/Respondent Kaduna Branch, with the instructions that funds could only be withdrawn from the account through the use of cheques duly signed by its Managing Director and with its official seal thereon. The Plaintiff/Appellant however instituted an action against the Defendant/Respondent at the Kaduna State High Court claiming for the sum of N61, 142,382.00 (Sixty One Million One Hundred and Forty Two Thousand Three Hundred and Eighty Two Naira) being the total sums of unauthorized withdrawals/debits from the Plaintiffs/Appellants account and damages for the unauthorized withdrawals/ debits by the Defendant/Respondent from the Plaintiff/Appellant’s account. The Defendant/Respondent claimed that the Plaintiff/Appellant instructed it by a letter signed by its Chairman/Managing Director to honour and act on all oral or telephone instructions given by him for the payment or withdrawal of money from the said account and that the letter absolved and released the Defendant/Respondent from any liability in respect of such payments and that all the alleged unauthorized withdrawals were done pursuant to the oral/telephone instructions of the Chairman/Managing Director of the Appellant. At the conclusion of the trial, the court dismissed the claims of the Plaintiff/Appellant. Aggrieved by the decision of the trial court, the Plaintiff/Appellant appealed.
HELD
Appeal dismissed.
ISSUES
Whether the Appellant made out a plausible case and led a preponderance of cogent and credible evidence to sustain its claims before the lower Court.?
RATIONES DECIDENDI
ORAL EVIDENCE – BY VIRTUE OF SECTION 126 OF THE EVIDENCE ACT, 2011, ORAL EVIDENCE OF FACTS MUST BE RENDERED BY A PERSON WHO HAD DIRECT KNOWLEDGE OF THE FACTS.
“By virtue of section 126 of the Evidence Act 2011 (formerly section 77 of the Evidence Act Cap El 4, Laws of the Federation 1990) for oral evidence of facts to be credible and reliable, it must be unequivocally direct, i.e. it must be rendered by a witness who could have, and did have, direct knowledge of the facts – Jolayemi Vs Olaoye (2004) 12 NWLR (Pt 887) 322 at 341, Ajadi Vs Ajibola (2004) 16 NWLR (Pt 898) 91 at 163 F-G, Ezeazodosiako Vs Okeke (2005) 16 NWLR (Pt 952) 612. PER H.A.O. ABIRU, J.C.A.
DETERMINATION OF AN EXPERT – IT IS THE DUTY OF THE COURT TO DETERMINE WHETHER OR NOT A PERSON QUALIFIES AS AN EXPERT.
“The question of whether or not a person qualifies as an expert is one of fact to be determined by the trial Judge before whom he is called to testify and the onus is on the party calling the witness as an expert.” PER H.A.O. ABIRU, J.C.A.
OPINION EVIDENCE –OPINION EVIDENCE IS INADMISSIBLE IN COURT, HOWEVER, THE OPINION OF EXPERTS IS AN EXCEPTION TO THE RULE.
“It is elementary that opinion evidence is generally inadmissible except in the circumstances provided for in the Evidence Act. One of the exceptions to the general rule is on opinions of experts.” PER H.A.O. ABIRU, J.C.A.
FINDINGS OF FACT BY A TRIAL COURT – WHERE THE FINDINGS OF FACT BY A TRIAL COURT IS NOT CHALLENGED, SUCH FINDINGS REMAIN BINDING ON THE PARTIES.
“It is settled that where there is no challenge on appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties — Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu Vs Atuma (2013) 11 NWLR (Pt 1364) 117.” PER H.A.O. ABIRU, J.C.A.
EXPERT – DEFINITION OF AN EXPERT – SECTION 68 OF THE EVIDENCE ACT
“Section 68 of the Evidence Act defines an expert as someone who is specially skilled in the field he is called to testify upon.” PER H.A.O. ABIRU, J.C.A.
EVIDENCE OF A WITNESS – WHERE THE EVIDENCE GIVEN BY A WITNESS IS MATERIALLY INCONSISTENT, SUCH EVIDENCE WILL BE DISCOUNTENANCED BY THE COURT.
“It is settled law that where a witness is shown to have made two statements on oath which are materially inconsistent, such a witness will be regarded as unreliable and the totality of his evidence will be rejected by the court – Nwankwoala Vs State (2006) 14 NWLR (Pt 1000) 663, Ojo Vs Federal Republic of Nigeria (2008) 11 NWLR (Pt 1099) 467 and Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490. A vacillating witness is not worthy of any credit – Anka Vs Lokoja (2001) 4 NWLR (Pt 702) 178, Yusuf Vs Obasanjo (2005) 18 NWLR (Pt 956) 96.” PER H.A.O. ABIRU, J.C.A.
OPINION OF AN EXPERT – THE GROUNDS UPON WHICH THE OPINION OF AN EXPERT IS BASED MUST BE GENUINE AND COMPLETE BEFORE IT CAN BE RELIED UPON BY THE COURT.
“It is trite law that where evidence presented to a court is predicated on the opinion of an expert, the factual basis of the opinion must be presented to the Court and it must be complete, real and genuine and an opinion of an expert which is based on doubtful grounds, incomplete facts or unrealistic assumption cannot be relied upon by a court – All Nigeria Peoples Party Vs Usman (2008) 12 NWLR (Pt 1100) 1.” PER H.A.O. ABIRU, J.C.A.
EXPERT EVIDENCE – EXPERT EVIDENCE IS ONLY OF PERSUASIVE EFFECT ON THE COURT.
“Even where expert evidence is accepted by the court, the same is never binding on the court, as it only has a persuasive effect on the mind of the court being an opinion. See the case of Uwa Printers Nig. Ltd. VS. Investment Trust Co. [1988] NWLR [Pt. 92] 110, or [1988] LPELR-SC217/1986.” PER I.G. MBABA, J.C.A.
CASES CITED