CHIEF OLUMA AJAMA & ORS V STEPHEN BABA OJEPA
March 5, 2025UMARU GARBA V THE STATE
March 5, 2025Legalpedia Citation: (2024-05) Legalpedia 72377 (CA)
In the Court of Appeal
HOLDEN AT MAKURDI
Tue May 28, 2024
Suit Number: CA/MK/160/2012
CORAM
Cordelia Ifeoma Jombo-Ofo ,Justice court of Appeal
Biobele Abraham Georgewill, Justice court of Appeal
Ibrahim Wakili Jauro, Justice court of Appeal
PARTIES
1. J. A. ONWUGHIA NIG. LTD
2. JOSEPH ETUH
APPELLANTS
MADAM ESTHER OMOKE
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING, TORT
SUMMARY OF FACTS
The Respondent paid for a cold room and was, by the terms of the agreement, entitled to peaceful possession. However, the Appellants disrupted her peaceful possession and vandalized the cold room. Seeking relief, the Respondent filed a suit against the Appellants in the trial court, claiming damages for the vandalization. The lower court (High Court of Benue State, Gboko Division) granted some of her claims against the Defendant/Appellant.
Dissatisfied with this decision, the Appellants filed the instant appeal.
HELD
Appeal dismissed
ISSUES
1. Whether or not the Respondent proved her claim of N17,000.00 only for the repair of the cold room, warranting the lower Court’s award of same to her?
2. Whether or not the lower Court was right when, after restoring the Respondent to her position as the owner of the cold room, he went ahead and awarded to the Respondent a whooping sum N3,650,000. 00 for breach of contract, and if he was right, whether or not the general damages of N3,650,000.00 only, was unreasonable, too high, and/or cannot, in the circumstances of this case, be supported by available evidence?
3. Was the lower Court right in law, by declaring the sale of the cold room by the Appellants as null and void and proceeded to set same aside, when there was no such relief by the Respondent before the lower Court?
4. Can the decision of the lower Court be said to be supported by the evidence adduced before it?
RATIONES DECIDENDI
COUNTER-SUBMISSIONS – WHERE A RESPONDENT FAILS TO MAKE COUNTER-SUBMISSIONS TO ISSUES IN THE APPELLANT’S BRIEF
In law, generally the failure of the Respondent to make any counter – submissions on all the issues and arguments as canvassed in the Appellants’ brief would simply amount to a concession by the Respondent to all the arguments canvassed in the Appellants’ brief.
The above is so because in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Uniaru Yar’Adua & Ors. (2010) 12 NWLR (Pt. 1209) 518. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA); Ochigbo V. Ameh (2023) LPELR-59616(CA); Ahmed V. Ahmed (2013) 41 WRN 1; Nyuekaa & Ors V. Adyuogh & Ors (2023) LPELR – 60480 (CA).
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA); Ochigbo V. Ameh (2023) LPELR-59616(CA); Ahmed V. Ahmed (2013) 41 WRN 1; Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Nyuekaa & Ors V. Adyuogh & Ors (2023) LPELR – 60480 (CA). – Per B. A. Georgewill, JCA
COUNTER-SUBMISSIONS – WHETHER FAILURE TO MAKE COUNTER-SUBMISSIONS IPSO FACTO MERITS THE ARGUMENT OF THE PLAINTIFF/APPELLANT
In law, generally the failure of the Respondent to make any counter – submissions on all the issues and arguments as canvassed in the Appellants’ brief would simply amount to a concession by the Respondent to all the arguments canvassed in the Appellants’ brief.
The above is so because in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Uniaru Yar’Adua & Ors. (2010) 12 NWLR (Pt. 1209) 518. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA); Ochigbo V. Ameh (2023) LPELR-59616(CA); Ahmed V. Ahmed (2013) 41 WRN 1; Nyuekaa & Ors V. Adyuogh & Ors (2023) LPELR – 60480 (CA).
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA); Ochigbo V. Ameh (2023) LPELR-59616(CA); Ahmed V. Ahmed (2013) 41 WRN 1; Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Nyuekaa & Ors V. Adyuogh & Ors (2023) LPELR – 60480 (CA). – Per B. A. Georgewill, JCA
JUDGMENT – WHEN JUDGMENT IS SAID TO BE AGAINST THE WEIGHT OF EVIDENCE
My lords, whenever in an appeal, as in ground 5 of the Notice of Appeal in the instant appeal, it is alleged that a judgment is against the weight of evidence, what it may mean one of three or more things. It may mean that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party, which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified.
It may also mean that there is no evidence which if accepted would support the findings of the trial Court. Furthermore, it may also mean that when the evidence adduced by the Appellant is weighed against that adduced by the Respondent, the judgment given in favor of the Respondent is against the weight of the evidence adduced before the Court. See Balogun V. EOCB (Nig.) Ltd (2007) All FWLR (Pt. 382) 1952 @ p. 1977; Osolu V. Osolu (2003)11 NWLR (Pt. 852) 608 @ p. 631. – Per B. A. Georgewill, JCA
BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL CASES
The burden of proof in civil cases is that of balance of probability or preponderance of evidence ensuing from a careful evaluation of the evidence proffered by the parties and putting same on the imaginary scale of justice to see which side the evidence preponderates.
Thus, the Respondent was not under any duty to prove all or any of her claims, which were all civil in nature, in any way higher than on preponderance of evidence or on a balance of probability as required of him by law. However, the evidence that is worth putting on the scale are such evidence that are credible, probable and worthy of belief and not evidence which are incredible, inadmissible and not worthy of any belief. See Jiaza V. Bamgbose & Anor(1999) 7 NWLR (Pt. 610) 182. See also Dibiamaka V. Osakwe (1989) 3 NWLR (pt. 107) 101; Mogaji V. Odofin (1978) 4 SC 2; Onwuka V. Ediala (1989) 1 NWLR (pt. 96) 182; Ekpo V. Ita (1932) 11 NLR 68; Tukuru & Ors V. Sabi & Ors (2013) 3 SCNJ PAGE 212. See also Pada V. Galadima (2017) 51 WRN 5 @ p. 6; Efana V. Adekunle (1961) ENLR 57; Jazhinbwa V. Saba (2023) LPELR – 60455(CA). – Per B. A. Georgewill, JCA
APPELLATE COURT – CONDUCT OF APPELLATE COURTS TO DECISIONS OF LOWER TRIAL/LOWER COURTS
My lords, I subscribe fully to the well settled position of the law that an appellate Court, such as the lower Court sitting in its appellate jurisdiction as well as this Court, which had not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the trial Court, and should not readily substitute its own views for that of the trial Court, except where it is shown, of which it has not been so shown in the instant appeal, that the conclusion reached by the trial Court was perverse. An appellate Court must always bear in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial Court. – Per B. A. Georgewill, JCA
APPELLATE COURTS – WHERE APPELLATE COURTS MAY DISTURB THE FINDINGS OF FACTS BY LOWER COURTS
In law, it is only and only if the findings of the trial Court have been demonstrated to be perverse as not flowing from the established and proved evidence or hinged on extraneous matters or for whatever other reasons not correct that an appellate Court would intervene to disturb such findings of facts and re-evaluate the evidence on the printed record, if so called upon by an Appellant, to make proper findings in accordance with the dictates of justice. See Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ p.1681. See also Nyomi & Anor V. Njoku & Anor (2021) LPELR- 55558(CA); Layinka V. Makinde (2002) FWLR (Pt. 109) 1557 @ p. 1570; Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307. – Per B. A. Georgewill, JCA
COURTS – WHETHER AN APPELLATE COURT SHOULD CONCERN ITSELF WITH THE REASONS GIVEN FOR A DECISION WHERE THE DECISION IS RIGHT
Thus, once a trial Court discharges its duty of evaluation and ascription of probative value, on the strength of the evidence placed before it, as in the instant appeal, an appellate Court should not, and will not, interfere once the conclusions reached is correct, even if the reason turns out to be wrong. The entire appeal is bereft of any merit and is thus, liable to be dismissed in its entirety. The lower Court did a meticulous job and evaluated and considered each of claim and granted only those proved while dismissing those not proved. See pp. 66 – 74 of the Record of Appeal.
See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC, had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Nyomi & Anor V. Njoku & Anor (2021) LPELR- 55558(CA); Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46; Oni V. Johnson (2015) LPELR – 24545 (CA); Balogun V. Agboola (1974) 1 All NLR (Pt. 2) 66; Ajayi & Anor V. Suru & Ors (2019) LPELR-48791(CA). – Per B. A. Georgewill, JCA
CASES CITED
STATUTES REFERRED TO
