CORAM

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1. HON. A. A. B. GUMEL….…..JUSTICE, COURT OF APPEAL

2. HON. U. A. OGAKWU……….JUSTICE, COURT OF APPEAL

3. HON. M. DANJUMA.….…….JUSTICE, COURT OF APPEAL

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PARTIES

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MATRIX ENERGY LIMITED

APPELLANTS 

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1. ABUBAKAR ISA

2. HARUNA AHMED ZAMBUK

3. MUSA ABUBAKAR

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONTRACT, EVIDENCE, LABOUR LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st Respondent served as the branch manager of the Appellant at the Gombe Matrix Filling Station, with the 2nd and 3rd Respondents acting as guarantors as a condition of the 1st Respondent’s employment. The 1st Respondent was dismissed from their position following an audit report, in which they were not involved, that alleged embezzlement of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00) and the forgery of deposit slips.

Subsequently, the Appellant, as the plaintiff, filed a lawsuit in the trial court to recover the embezzled amount from the Respondent. After the trial, the court dismissed the Appellant’s claim. Dissatisfied with this decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the trial court rightly evaluated the evidence adduced before it in arriving at its decision?

2. Whether having regard to the facts, circumstances and evidence before the trial court, the Appellant has proved its entitlement to the judgment for the sum of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00k) against the Respondents jointly and severally?

3. Whether the refusal of the Appellant’s claim by the trial court amounts to non-suit?

 

 

 

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RATIONES DECIDENDI

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EVIDENCE – THE COURT WITH THE PRIMARY DUTY OF EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE

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The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial court. In the case of UBA PLC V. GEMEX INTL LTD (2020) LPELR-50977 (CA), this court held:

“The law is settled that evaluation and ascription of probative value to the evidence led is the primary duty of the trial court which an appellate court cannot interfere with unless it is shown that the trial court failed to perform its duty or that the finding made by the court is perverse. What constitutes a perverse decision has been stated in a plethora of cases. See ODOM & ORS V. PDP & ORS (2015) LPELR-24351 (SC) AT 39 (A-D), where the Supreme Court Per MUHAMMAD, JSC, stated instances where the decision of court would be regarded as perverse as follows: “A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of the trial court’s wrongful application of the law to correctly ascertained facts. See Yaro V. Arewa Construction Ltd & Ors (2007) 16 NWLR (Pt. 1063) 333 at 374 and Olaniyan & Ors V. Fatoki (2013) LPELR-20936 (SC)”.

Per BOLAJI-YUSUFF, JCA (PP. 24-25, Paras. E-C). – Per Mohammed Danjuma, JCA

 

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EVIDENCE – CONDUCT OF APPELLATE COURTS TO THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE BY TRIAL COURTS

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The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial court. In the case of UBA PLC V. GEMEX INTL LTD (2020) LPELR-50977 (CA), this court held:

“The law is settled that evaluation and ascription of probative value to the evidence led is the primary duty of the trial court which an appellate court cannot interfere with unless it is shown that the trial court failed to perform its duty or that the finding made by the court is perverse. What constitutes a perverse decision has been stated in a plethora of cases. See ODOM & ORS V. PDP & ORS (2015) LPELR-24351 (SC) AT 39 (A-D), where the Supreme Court Per MUHAMMAD, JSC, stated instances where the decision of court would be regarded as perverse as follows: “A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of the trial court’s wrongful application of the law to correctly ascertained facts. See Yaro V. Arewa Construction Ltd & Ors (2007) 16 NWLR (Pt. 1063) 333 at 374 and Olaniyan & Ors V. Fatoki (2013) LPELR-20936 (SC)”.

Per BOLAJI-YUSUFF, JCA (PP. 24-25, Paras. E-C). – Per Mohammed Danjuma, JCA

 

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PERVERSE – INSTANCES WHERE THE DECISION OF A COURT WOULD BE REGARDED AS PERVERSE

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The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial court. In the case of UBA PLC V. GEMEX INTL LTD (2020) LPELR-50977 (CA), this court held:

“The law is settled that evaluation and ascription of probative value to the evidence led is the primary duty of the trial court which an appellate court cannot interfere with unless it is shown that the trial court failed to perform its duty or that the finding made by the court is perverse. What constitutes a perverse decision has been stated in a plethora of cases. See ODOM & ORS V. PDP & ORS (2015) LPELR-24351 (SC) AT 39 (A-D), where the Supreme Court Per MUHAMMAD, JSC, stated instances where the decision of court would be regarded as perverse as follows: “A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of the trial court’s wrongful application of the law to correctly ascertained facts. See Yaro V. Arewa Construction Ltd & Ors (2007) 16 NWLR (Pt. 1063) 333 at 374 and Olaniyan & Ors V. Fatoki (2013) LPELR-20936 (SC)”.

Per BOLAJI-YUSUFF, JCA (PP. 24-25, Paras. E-C). – Per Mohammed Danjuma, JCA

 

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EVIDENCE – WHERE THE TRIAL COURT DOESN’T PLACE RELIANCE ON THE WHOLE EVIDENCE

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It was the contention of the Appellant that the trial court placed reliance solely on exhibit 1 instead of the totality of evidence adduced during the trial. If this were so, it can only lead to an error of law. See the cases of OTUEYEYE & ORS V. ASHAMU (1987) LPELR-638 (SC) and UZUDA & ORS V. EBIGAH & ORS (2009) LPELR-3458 (SC). – Per Mohammed Danjuma, JCA

 

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AUDIT REPORT – WHERE AN AUDIT REPORT IS MADE WITHOUT GIVING AN AFFECTED PARTY THE OPPORTUNITY TO GIVE HIS INPUT

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Exhibit 1 formed the basis of the allegation of embezzlement against the 1st Respondent. However, the 1st Respondent was not a participant in the audit process. This sort of attempt to shave a man’s head in his absence is scorned at in ASIKPO V. ACCESS BANK (2015) LPELR-25845 (CA), thus:

“An audit report that is made without opportunity given for proper input from the other party affect by it cannot be countenanced as such. See also Adigun V. A. G. of Oyo State (1987) 3 SC 250. Liability cannot be laid at the feet of a party based on the result of an exercise commissioned by the other party that did not admit or take account of his input. No weight can therefore be attached on the said audit report”.

Per ONYEKACHI AJA OTISI, JCA (PP. 31-31, Paras. C-E).

See also the cases of ASSENE (NIG) LTD V. MIVERO PHARMA LTD & ANOR (2021) LPELR-56247 (CA) and GANIYU OGUNLEYE & ANOR V. IGP & ORS, CA/A/377C/2009 (unreported) delivered on 24th April, 2012. – Per Mohammed Danjuma, JCA

 

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EVIDENCE – QUALITY VS. QUANTITY OF EVIDENCE

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In the case of MOGAJI V. ODOFIN (1978) 4 SC 91 at 94, the apex court held that quality, not quantity of evidence determines the outcome of a case. – Per Mohammed Danjuma, JCA

 

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STANDARD OF PROOF – STANDARD OF PROOF WHERE A CRIME IS ALLEGED IN A CIVIL PROCEEDING

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In paragraph 4.25-4.27, the Appellant opined that the burden on it at the trial court was not to prove beyond reasonable doubt but on preponderance of evidence. the Evidence Act, 2011 however punctures such submission:

S 135(1) of the Evidence Act 2011

If the commission of a crime by a party is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”.

Thus, the claims against the 1st Respondent as disclosed in the Record borders on embezzlement and forgery which is apparently a crime hence must be proved beyond reasonable doubt. See the case of OGUNDELE & ANOR V. AGIRI & ANOR (2009) LPELR-2328 (SC). – Per Mohammed Danjuma, JCA

 

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NON-SUIT – THE EFFECTS OF VOLUNTARY AND INVOLUNTARY NON-SUIT

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The term non-suit, very often than not, denotes a court’s dismissal (striking out) of case because of the plaintiff’s failure to make out a legal case, or bring forward sufficient evidence to establish (prove) the claim thereof. This is termed involuntary non-suit; compulsory non-suit as opposed to voluntary discountenance (of a suit). According to GEOFFREY RADCLIFE & GEOFFREY CROSS; THE ENGLISH LEGAL SYSTEM, at 184- “non-suit… is equivalent to a demurrer to the evidence in that, even if all facts that plaintiff presents are true, the evidence is not, as a matter of law, sufficient to entitle plaintiff to a judgment. However, a voluntary non-suit, unlike a demurrer or a directed verdict which resolves the action on its merits, may result in another trial of the cause”. See OLUSOLA & ORS V. TRUSTHOUSE PROPERTIES LTD & ANOR (2010) LPELR-4769 (CA). – Per Mohammed Danjuma, JCA

 

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COURTS – THE APPROPRIATE ORDERS A COURT CAN GIVE IN DIFFERENT SITUATIONS

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In the case of OBAHAYA V. OBAHAYA (2022) LPELR-57141 (CA), this court held thus:

“The settled position of the law is that dismissal of action is only appropriate where the court is satisfied that the party who commenced the action could not prove his claim. See NWEKE V. STATE (2017) LPELR-42513 (CA). Therefore, where a matter is heard and determined on the merit, the appropriate order to make where the relief sought is not proved is that of dismissal. A suit is said to have been heard on the merit when all the necessary parties are before the court and the claimant fails to prove his case. That is to say, once evidence has been taken and a matter is heard and the suit either fails or succeeds, the matter is said to have been heard on the merit. On the other hand, an order striking out a claim is made in a case where the action has not been properly heard on the merit or has not been heard at all.

Flowing from the above principle of law, I do not agree with the learned counsel for the Appellant that the appropriate order herein is that of striking out, the suit having been heard on the merit. I hold that the trial court rightly dismissed the suit same having been heard on the merit and the Appellant having failed to prove the ingredients for the grant of the relief sought”.

Per UCHECHUKWU ONYMENAM, JCA (PP. 17-18 Paras. C-C). – Per Mohammed Danjuma, JCA

 

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TRIAL JUDGE – DUTY OF THE TRIAL JUDGE TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE

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The judge at nisi prius is a peculiar adjudicator. He is the one in the heat of the battle at the trial. He sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial Judge who saw, heard, and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38. Where a trial court unquestionably evaluates and justifiably appraises the facts, as in the present case, it is not the business of an appellate court to substitute its own views for the views of the trial court. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The trial court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates and then makes logical and consequential findings of facts: ADEDEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 AT 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43. Where the findings of the trial court have been judicially and judiciously arrived at flowing from evidence before it, an appellate court has no jurisdiction to interfere. See OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 217-218.

The law is that the conclusions 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. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Having insightfully considered the Records of Appeal, I find that the evaluation of evidence and the findings made by the lower court flow from the evidence on record and were definitely not perverse. Therefore, there is absolutely no basis on which an appellate court can intervene. In the circumstances, this Court cannot interfere merely to substitute its own views for the views of the lower court. See ADEBAYO vs. A-G OGUN STATE (2008) ALL FWLR (PT 412) 1193 at 1197 and 1211, SAGAY vs. SAJERE (2000) 4 SC (PT 1) 187 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 622) 174. – Per U. A. Ogakwu, JCA

 

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COURTS – CONDUCT OF APPELLATE COURTS TO EVALUATION OF EVIDENCE BY TRIAL COURTS

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The judge at nisi prius is a peculiar adjudicator. He is the one in the heat of the battle at the trial. He sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial Judge who saw, heard, and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38. Where a trial court unquestionably evaluates and justifiably appraises the facts, as in the present case, it is not the business of an appellate court to substitute its own views for the views of the trial court. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The trial court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates and then makes logical and consequential findings of facts: ADEDEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 AT 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43. Where the findings of the trial court have been judicially and judiciously arrived at flowing from evidence before it, an appellate court has no jurisdiction to interfere. See OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 217-218.

The law is that the conclusions 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. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Having insightfully considered the Records of Appeal, I find that the evaluation of evidence and the findings made by the lower court flow from the evidence on record and were definitely not perverse. Therefore, there is absolutely no basis on which an appellate court can intervene. In the circumstances, this Court cannot interfere merely to substitute its own views for the views of the lower court. See ADEBAYO vs. A-G OGUN STATE (2008) ALL FWLR (PT 412) 1193 at 1197 and 1211, SAGAY vs. SAJERE (2000) 4 SC (PT 1) 187 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 622) 174. – Per U. A. Ogakwu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act, 2011

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