CORAM

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PETER OLABISI IGE JUSTICE OF THE COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU JUSTICE OF THE COURT OF APPEAL

DANLAMI ZAMA SENCHI JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. DAVANDY FINANCE AND SECURITIES LIMITED

2. GROUP CAPT. ITA D. IKPEME (RTD)

3. CHIEF ASUQUO EKPENYONG

4. DR (MRS.) IQUO EKPENYONG APPELANT(S

APPELLANTS 

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1. ELDER EMMANUEL MBA AKI

2. ELDER MRS. CHINYERE UKONU

3. MR. CHRISTIANA AKI MBA

4. MR. BASSEY EWA HENSHAW RESPONDENT(S)

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COMPANY LAW, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The action was commenced on the undefended list. However, the Appellants and the 4th Respondent, who were the Defendants at the lower Court, were able to disclose a defence on the merits to the action whereupon the case was transferred to the general cause list for hearing.

The relationship between the parties which spawned this appeal is contractual. The 1st-3rd Respondents made investments with the 1st Appellant and upon maturity, the 1st Appellant was unable to pay up on the investments, consequent upon which this action was instituted to recover the amounts due on their investment and their principal sums.

The trial Court entered Judgment in their favour and granted sums that were less than the sums demanded for in the reliefs they sought. The Appellants (defendants) were aggrieved by this decision hence the instant appeal.

 

 

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HELD

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Appeal dismissed

 

 

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ISSUES

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Whether the Statement of the learned trial Judge quoted in ground 1 does not amount to Obita dictum, the trial Court haven found that there was a contract between the 1st Respondent and the 1st Appellant?

Whether a Court can award what was proved but less than what was claimed?

Whether by virtue of the amendment of pleading and witness statement on oath, the lower Court can still rec[k]on with the statement in the earlier witness statement on oath before amendment as being inconsistent with the Amended Witness Statement on Oath?

Whether the act of an agent done within the implied or apparent scope of his employment is deemed to be the act of his principal?

 

 

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RATIONES DECIDENDI

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NOTICE OF APPEAL – SERVICE OF NOTICE OF APPEAL

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Order 2 Rule 1 (a) of the Court of Appeal Rules, 2021 deals with service of Notice of Appeal and it provide that “Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 8, be served on the Respondent personally or by electronic mail to the electronic mail address of the Respondent: Provided that if the Court is satisfied that the Notice of Appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served in accordance with this Rule.”

The original Notice of Appeal which originated this appeal is at pages 547-556 of Volume II of the Records of Appeal. It shows on pages 554 and 555 that the 1st-3rd Respondent’s address of service is the address of their Counsel, and which was the address used by the 1st-3rd Respondents on the processes filed on their behalf in the lower Court. It is not confuted that the Notice of Appeal was served at the address of the said Counsel on 17th June, 2020 (see page 556 of Volume II of the Records of Appeal), and it was received by the Counsel without any objection. The said Counsel for the 1st-3rd Respondents by this Preliminary Objection challenges the competence of the appeal, inter alia, on the grounds that the Notice of Appeal was not served on the 1st-3rd Respondents personally.

In similar circumstances, the Supreme Court, interpreting the provision of Order 2 Rule 3 (1) of its 2014 Rules on service of Notice of Appeal, and which provision is very similar to Order 2 Rule 1 (a) of the Court of Appeal Rules 2021, held by a split decision in ODEY vs. ALAGA (2021) 13 NWLR (PT 1792) 1 that such service of the Notice of Appeal on the counsel to a respondent did not constitute proper service of the Notice of Appeal and that as such the appeal was incompetent. However, this decision no longer represents the position of the law. The Supreme Court departed from it in its judgment in the case of A-G FEDERATION vs. ANUEBUNWA (2022) 14 NWLR (PT 1850) 265 and held that service of the Notice of Appeal on the Counsel to a respondent in circumstances akin to the present case, qualified as proper service of the Notice of Appeal within the meaning of the provision of Order 2 Rule 3 (1) of the Supreme Court Rules, 2014. Explicating further on this new stance of the Supreme Court, my Lord, Agim JSC, in AMAECHI vs. GOVERNOR OF RIVERS STATE (2022) 17 NWLR (PT 1858) 1 at 43-45 stated, and I will reproduce in extenso:

“In Odey v. Alaga… relied on by all the respondents for their objections, this Court held per Agim JSC that… ‘The generally established practice in appeals is that the address given by a party in the proceedings at the lower Court is endorsed on the notice of appeal against the decision in those proceedings as his address for service and the notice of appeal and processes in the appeal may be served on the party at such address until the party files a notice of his new address or service in the appeal. …

This appeal is a continuation of the proceedings in this case, with the proceedings commenced in the trial High Court, through the Court of Appeal to this Court. The address of the party’s legal practitioner at the lower Court at which processes were served on the party was endorsed as his address for service on the notice of appeal against a decision of the lower Court in the proceedings and remains his address for service until the legal practitioner notifies the Registrar of this Court that he has ceased to be instructed by him for the purpose of the proceedings.’

It is noteworthy that the lack of unanimity in the decision of this Court in Alaga v Odey was in respect of only the question of whether the service of the notice of appeal on the respondent through the address of his counsel at the Court of Appeal endorsed in the notice of appeal as the address for the service and whether the Court ordered substituted service of the notice of appeal on the respondent by newspaper publication was an effective service of the notice of appeal. The split in the decision did not extend to the validity of the endorsement of the address of its counsel at the lower Court in the notice of appeal as the address for service on the respondent. – Per U. A. Ogakwu, JCA

 

 

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NOTICE OF APPEAL – SERVICE OF NOTICE OF APPEAL

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It is not in dispute that the notice of this appeal was served on the respondents through the law office address of their respective lawyers at the Court of Appeal, which addresses were endorsed on the notice of appeal as the address for service on each of them. So, the notice was not served on them personally. It is noteworthy that the same lawyers that represented them at the Court of Appeal and whose addresses were endorsed in the notice of appeal as address for service of the respective respondents, still represent the respective respondents in this appeal. None of them filed any notice stating that the respondent he represented in the Court of Appeal and is still representing in this appeal, has ceased to instruct him for the purpose of this appeal. Each respondent has filed a brief of argument raising issues for determination distilled from the grounds of appeal in the notice of appeal and arguing the merits of the appeal, while raising and arguing therein the preliminary objection to the appeal.

In the light of the foregoing, I am satisfied that the notice of this appeal, though not served on the respondents personally, has been communicated to them by serving it on their respective Counsel at the address for service endorsed in the notice of appeal. Even though Order 2 Rule 3(1)(b) of the Supreme Court Rules, 2014 require that a notice of appeal be served on the respondent personally, the proviso to that rule provides that if the Court is satisfied that a notice served at the law office address of the respondent’s legal practitioner indicated in the notice of appeal as the address for service on the respondent, has been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground only that the notice of appeal was not served personally. It is implicit in this proviso that the service of the notice of appeal at the law office address of the respondent’s counsel at the lower Court indicated in the notice of appeal as the respondent’s address for service would be deemed sufficient service on the respondent, if the Court is satisfied that the notice has been communicated to the respondent.

This Court in Attorney General of the Federation v Princewill Ugonna Anuebunwa … had departed from our decision in Odey v Alaga and applied the proviso to Rule 3(1) of Order 2 of the Supreme Court Rules, 2014 in exactly similar circumstances and held that since the facts show that the notice of appeal was served on the respondent’s counsel at the lower Court at the address indicated in the notice of appeal as the address for service on the respondent and that the respondent had been communicated the notice of appeal as it had filed its brief in the appeal, the notice of appeal was sufficiently served on him…

I kowtow. The principle of stare decisis dictates that this Court must follow these latter decisions of the Supreme Court in interpreting and giving effect to the provision of Order 2 Rule 1 (a) of the Court of Appeal Rules, 2021. The necessary outcome of the interpretation of Order 2 Rule 1 (a) of the Court of Appeal Rules, 2021, in the light of the above decisions, is that the service of the Notice of Appeal in this appeal on the 1st-3rd Respondents through the law office address of their Counsel, the address endorsed on the original Notice of Appeal as their address for service, constitutes adequate service of the Notice of Appeal, in the circumstances of this case, by virtue of the proviso in Order 2 Rule 1 (a) of the Court of Appeal Rules, 2021. – Per U. A. Ogakwu, JCA

 

 

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APPEAL – WHEN APPEAL IS AS OF RIGHT

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Section 241 (1) (a) of the 1999 Constitution, as amended, provides as follows:

“241.(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

The decision of the lower Court appealed against, the judgment of 11th March, 2020 is a final decision, so by the provisions of Section 241 (1) (a) of the Constitution, an appeal lies from the decision as of right whether the grounds of appeal be of law, mixed law and facts or facts only.

The leave of Court is not required. See AQUA LTD vs. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622, IKWEKI vs. EBELE (2005) 11 NWLR (PT 936) 397 at 422-429, APC vs. JOHN (2019) LPELR (47003) 1 at 28, PDP vs. EBOH (2022) LPELR (58677) 1 at 23-24 and ABUJA MUNICIPAL AREA COUNSEL vs. ANYISA (2023) LPELR (59915) 1 at 13. – Per U. A. Ogakwu, JCA

 

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APPEAL – RULES GOVERNING APPEAL AGAINST INTERLOCUTORY DECISION

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Howbeit, even though an appeal against an interlocutory decision can be taken along with an appeal against the final decision, but by Section 24 (2) of the Court of Appeal Act an appeal against an interlocutory decision is to be lodged within 14 days. The Ruling on the said application which was delivered on 25th September, 2019 was not appealed against until 8th June, 2020, when the original Notice of Appeal was filed. This is far more than the 14 days allowed for an appeal to be brought against an interlocutory decision. Furthermore, in the light of the fact that the excoriated ground eight of the grounds of appeal relates to an interlocutory decision, Section 241 (1) (b) and (d) of the 1999 Constitution (as amended) provides as follows: “241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person."

An interlocutory decision can be made in any civil or criminal proceedings, so, provided the ground of appeal against such an interlocutory decision is on questions of law alone, an appeal will lie as of right by virtue of the provisions of Section 241 (1) (b) of the 1999 Constitution as amended.

However, by Section 242 of the 1999 Constitution (as amended), in circumstances where an appeal is not as of right under Section 241, the appeal shall be with leave of either the High Court or the Court of Appeal. The vital question that needs to be considered is whether the said ground eight is a ground of law alone in which case leave is not necessary or whether it is a ground of facts or mixed law and fact as contended by the 1st-3rd Respondents in which case leave of either the lower Court or this Court will be required for the ground to be competent. –Per U. A. Ogakwu, JCA

 

 

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GROUNDS OF APPEAL – CLASSIFICATION OF GROUNDS OF APPEAL – GROUNDS OF LAW, FACT, MIXED LAW AND FACT

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Now, it is often a very thin line that separates a ground of law only from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or of mixed law and fact. In the words of Eso, JSC in OGBECHIE vs. ONOCHIE (1986) LPELR (2278) 1 at 8:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 55-56, Adekeye, JSC stated as follows:

“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance -(a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.

(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.

(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.

(d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.

(e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.

(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.

(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.

(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.” See also UNION BANK vs. RAVIH ABDUL & CO. (2018) LPELR (46333) 1 at 27-30, NWADIKE vs. IBEKWE (1987) 4 NWLR (PT. 67) 718 at 744-745, OLABOMI vs. OYEWINLE (2013) LPELR (20969) 1 at 11-12 and COKER vs. UBA (1997) LPELR (880) 1 at 10-16. – Per U. A. Ogakwu, JCA

 

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APPEAL – WHEN A PARTY FAILS TO SEEK LEAVE OF COURT TO APPEAL WHEN LEAVE OF COURT IS REQUIRED

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With the above pronouncement of the apex Court on the classification of grounds of appeal and how to pitchfork a ground of appeal into the categories of classification as our lodestar, it cannot be confuted that a decision on whether to join a party in an action is a judicial and judicious exercise of discretion. This being so, a ground of appeal complaining about the exercise of discretion is a ground of mixed law and fact. FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (supra); an appeal on such a ground requires leave of Court. The Appellants did not obtain leave of Court to appeal on ground eight; they also did not appeal on the ground within 14 days. The said ground is incompetent, and it is hereby struck out, alongside the issue distilled from it. See KAKIH vs. PDP (2014) 15 NWLR (PT 1430) 374 at 407- 409, OGIGIE vs. OBIYAN (1997) 10 SCNJ 1 at 15 and AJOBENA vs. MUJAKPERUO (2014) LPELR (23209) 1 at 10. – Per U. A. Ogakwu, JCA

 

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RECORD OF APPEAL – MEANING OF RECORD OF APPEAL

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Now, the record of appeal is the documentary account of what transpired in the Court from which the appeal was brought. It is the reflection of the proceedings that took place in that Court. A record of appeal is the record of a trial Court proceeding as presented to the appellate Court for review. In the absence of the vital documents in a record of appeal, the record of appeal will be incompetent and the Court on appeal will be devoid of jurisdictional competence to hear the appeal. See OPARA vs. PAUL (2019) LPELR (47678) 1 at 13, MUTUAL LIFE & GEN INS. vs. IHEME (2010) LPELR (24698) 1 at 9, YEKEEN vs. OLAWUMI (2015) LPELR (41694) 1 at 20 and Black’s Law Dictionary, 9th Edition, page 1388. The linchpin of the 1st-3rd Respondents’ contention is that there is absent from the Records of Appeal, the Statement required by Order 8 Rule 7 (b) of the Rules of this Court. Order 8 Rule 7 stipulates as follows: “7. Every Record of Appeal or Additional Record of Appeal shall contain the following documents in the order set out –

(a) the index;

(b) a statement giving brief particulars of the case and including a schedule of the fees paid;

(c) copies of the documents settled and compiled for inclusion in the Record of Appeal; and

(d) a copy of the Notice of Appeal and other relevant documents filed in connection with the appeal.”

It is instructive that the 1st-3rd Respondents have not challenged the authenticity of the processes and proceedings compiled in the Records of Appeal or in any way contended that they do not form part of the records of the lower Court in respect of this matter. It has also not been contended that the vital documents used in the proceedings before the lower Court were omitted from the Records of Appeal. Furthermore, it is not the contention that fees were not paid or that the brief particulars of the case which were not stated have prejudiced them in any way. The Records of Appeal in this matter substantially complies with the provision of Order 8 Rule 7 of the Rules of Court and the Statement which the 1st-3rd Respondents complain about is not such that in the absence of the same the records of the matter from the lower Court would be said to be incomplete. I am therefore unable to agree with the 1st-3rd Respondents that the Records of Appeal can be impugned and said to be incomplete on this scor. – Per U. A.Ogakwu, JCA

 

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TECHNICALITY – CONDUCT OF COURTS REGARDING UNDUE TECHNICALITY

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Undoubtedly, the current disposition of the Courts is to eschew technicality in pursuit of substantial justice and to as much as possible decide a matter on the merits. Admittedly, the law is a technical discipline, so what the Courts frown at is not technicality per se, but resort to undue technicality. A-G ENUGU STATE vs. AVOP NIG PLC (1995) 6 NWLR (PT 334) 90 at 123-124, UNION BANK vs. BEAR MARINE SERVICES LTD (2018) LPELR (43692) 1 at 24-25 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 30-31. The days when the whirligig of technicality rendered justice grotesque are long gone. The Courts have worked their way in the mass exodus from the Egypt of undue technicality and arrived at the promised land of substantial justice. With due deference to the learned counsel for the 1st-3rd Respondents, the quest to scuttle the hearing and determination of this appeal on the merits based on non- compliance with Order 8 Rule 7 (b) of the Rules of this Court is a resort to undue technicality and an invitation for this Court to embark on the retrograde step to the foregone days of undue technicality. Those days are long gone; so, I decline the invitation. See generally AFOLABI vs. ADEKUNLE (1983) 2 SCNLR 141, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 81) 184 and BANKOLE vs. DENAPO (2019) LPELR (46444) 1 at 20. – Per U. A. Ogakwu, JCA

 

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REPLY BRIEF – FUNCTION/ PURPOSE OF REPLY BRIEF

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By way of prefatory remarks, by Order 19 Rule 5 of the Court of Appeal Rules, 2021, the appellant may file a reply brief which shall deal with all new points raised and argued in the respondent’s brief. This is the function or purpose of a reply brief. The purpose of a reply brief is not to highlight submissions made in the appellant’s brief, which the appellant perceives that the respondent did not respond to in the respondent’s brief. In the same vein, a reply brief is not used to strengthen the appellant’s brief by repeating the submissions made in the appellant’s brief. The reply brief is not a recitation of the appellant’s brief. OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277, OLAFISOYE vs. FRN (2004) 4 NWLR (PT 864) 580 at 644 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 6-7. – Per U. A. Ogakwu, JCA

 

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OBJECTIONS TO THE COMPETENCE OF AN APPEAL – HOW OBJECTIONS TO THE COMPETENCE OF AN APPEAL ARE MADE

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It is abecedarian law that an objection to the competence of an appeal under whatever guise, be it to a ground of appeal as in this instance or otherwise, cannot be merely argued under an issue formulated for determination in the appeal. The 1st-3rd Respondents ought to have filed a motion on notice to challenge ground one only for being against an obiter dictum or incorporate that challenge as one of the grounds of their preliminary objection. The 1st-3rd Respondents cannot secure the striking out of ground one on the score they have raised by merely crafting it as an issue for determination. See ODUNZE vs. NWOSU (2007) 13 NWLR (PT 1050) 1, YAKUBU vs. ODIDI (2022) LPELR (57897) 1 at 6-7 and BUNGUDU vs. YARO (2022) LPELR (58300) 1 at 3-5. The challenge to ground one of the grounds of appeal for being against an obiter dictum is consequently discountenanced: ORLU vs. GOGO-ABITE (2010) 8 NWLR (PT. 1198) 307 at 321, ELUWANTA vs. ONWUKWE (2014) LPELR (23538) 1 at 14-15 and POLARIS BANK LTD vs. VITAL VETS NIG LTD (2020) LPELR (49954) 1 at 37. – Per U. A. Ogakwu, JCA

 

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CONTRACT – THE DOCTRINE OF PRIVITY OF CONTRACT

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The general principle of law based on the doctrine of privity of contract is that a contract, cannot as a general rule confer rights or impose obligations under it on any person, except the parties to it. In aliis verbis, only parties to a contract can sue or be sued on the contract. See MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (supra) and A-G FEDERATION vs. A. I. C. LTD (2000) 4 WRN 96 at 103. – Per U. A. Ogakwu, JCA

 

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COMPANY – WHEN COMPANIES CAN BE HELD LIABLE FOR THE ACTS OF THEIR OFFICIALS

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It is rudimentary law that persons dealing with a company need not inquire into the regularity of the internal proceedings – the indoor management of the company. They are entitled to assume that all is being done regularly and can hold the company responsible for the acts of their officials, even if unauthorised, but which are within their usual or ostensible powers. This is the rule in ROYAL BRITISH BANK vs. TURQUAND (1956) 6 E & B 327. See TRENCO (NIG) LTD vs. AFRICAN REAL ESTATE AND INVESTMENT CO. LTD (1978) LPELR (3264) 1 at 19-20, J. A. OBANOR & CO. LTD vs. CO-OPERATIVE BANK LTD (1995) LPELR (24846) 1 at 14 and SPASCO VEHICLE AND PLANT HIRE CO. LTD vs. ALRAINE (NIG) LTD (1995) LPELR (3110) 1 at 22. At all times material to the transaction between the parties, the applicable law was the Companies and Allied Matters Act, 1990. By Section 63 thereof a company acts, inter alia, through its authorised officers or agents. VISINONI vs. BRAHAMS (2015) LPELR (40405) 1 at 24- 25, AVOP PLC vs. ENUGU STATE (2000) 7 NWLR (PT 664) 260 at 275 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 275. – Per U. A. Ogakwu,JCA

 

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GRANT OF RELIEFS – COURTS CAN GRANT RELIEFS THAT ARE LESS THAN WHAT WAS CLAIMED

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The Appellants question the rationale for the lower Court entering judgment in favour of the 1st-3rd Respondents, arguing that the amount awarded was not claimed, that the same was not proved and that it was not open to the lower Court to pick and choose from the inconsistencies which it stated existed in the evidence of the 1st-3rd Respondents. The learned counsel for the 1st-3rd Respondents has rightly submitted that a Court can award less than what has been claimed, where the less is what is established by the evidence. I have already set out the reliefs claimed by the 1st-3rd Respondents. I have equally set out the reliefs granted by the lower Court, which is less than what was claimed, but which award is within the prescriptions of the law if that is what the evidence established. JERIC NIG LTD vs. UBN PLC (2000) 15 NWLR (PT 691) 447 at 464, HASTON NIG LTD vs. ACB PLC (2002) 12 NWLR (PT 782) 623 at 647 and SOUTH BEACH CO. LTD vs. WILLIAMS (2021) LPELR (57746) 1 at 36-38 and 44-46. – Per U. A. Ogakwu, JCA

 

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RELIEFS – COURTS CAN GRANT LESS RELIEFS THAN WHAT WAS CLAIMED

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Iiterate that a Court can grant less than what was claimed where the lesser claim is proved and granting such lesser amount will not be granting a relief that has not been claimed as wrongly submitted by the Appellants’ counsel. See A-G CROSS RIVER STATE vs. A-G FEDERATION (2005) LPELR (3159) 1 at 39, OGUNYADE vs. OSHUNKEYE (2007) LPELR (2355) 1 at 10 and ALLIANCE INT’L LTD vs. SAAM KOLO INT’L ENTERPRISES LTD (2022) LPELR (57984) 1 at 16-17. – Per U. A. Ogakwu, JCA

 

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EVIDENCE – CONDUCT OF APPEALLATE COURTS IN EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE

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Now, the primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is hornbook law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. SeeWILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Guided by these settled principles of law on the evaluation of evidence and ascription of probative value thereto, I have insightfully considered the evidence on record, and it is effulgent that the findings of facts made by the lower Court flow from the evidence on record and the findings are not perverse. It is hornbook law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47, AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. The evaluation of evidence and the findings made by the lower Court are not perverse. An appellate Court will not lightly interfere with the same unless for compelling reasons. See OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT 47) 370, MAKINDE vs. AKINWALE (2000) 1 SC 89 and AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) 1. There are no reasons to interfere. Therefore, there is absolutely no basis on which this Court can intervene. From all I have said thus far, the inevitable summation is that the Appellant has failed to displace the presumption that the conclusion of the lower Court on the facts are correct in order to upset the judgment on the facts. EHOLOR vs. OSAYANDE(supra) at 43 and ONI vs. JOHNSON (supra) at 11-13. The onus is on an appellant to satisfy the appellate Court that the decision on appeal is wrong. Where he fails to do this, the decision appealed against will be allowed to stand. MACAULAY vs. TUKURU (1881-1911) 1 NLR 35 at 40, AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, OBISANYA vs. NWOKO (1974) 6 SC 69 at 80, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330 andOBODO vs. OGBA (1987) 1 NSCC (VOL. 18) 416 at 421. – Per U. A. Ogakwu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Court of Appeal Rules 2021

3. Companies and Allied Matters Act, 1990

4. Companies and Allied Matters Act, 2020

 

 

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