ALHAJI SALEH KILAWA vs. ZAKARI SARAKI KALESHINGI
April 16, 2025INCORPORATED TRUSTEES OF ISLAND CLUB & ORS v. PRINCE JIDE SIKUADE
April 16, 2025Legalpedia Citation: (2016-12) Legalpedia (CA) 53660
In the Court of Appeal
HOLDEN AT ABUJA
Mon Dec 12, 2016
Suit Number: CA/A/171/2016
CORAM
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
ELIAS, JUSTICE SUPREME COURT
MORONKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
PARTIES
MR. BALA TSEWA BELLO KHAMOFU
STANDARD CHARTERED BANK NIG LTD
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant, a building engineer and businessman maintains a domiciliary account (dollar account) No. 00003304999 with the Respondent, at plot 374 Adetokunbo Ademola Crescent Wuse II, Abuja branch, with its Head office at plot 1058 Ajose Adeogun Street Victoria Island, Lagos. The Appellant claims that on the 18th of May 2011, he instructed the Respondent to transfer the sum of Fifty thousand U.S. Dollars ($50,000.00) less bank charges to the account of Better Trace Co. Ltd, Hong Kong and Shangai Banking Corporation Limited (HSBC) into Account No. 817423833838. On the 22nd of May 2011, the Appellant instructed the Respondent to transfer another sum of Twenty Seven Thousand U.S. Dollars ($27,000.00) less banking charges to the same account of Better Trace Co. Ltd at HSBC in Hong Kong. The Appellant averred that his account was debited with the sum of Seventy Seven Thousand U.S Dollars in compliance with his instruction but same was never transferred to the account of Better Trace Co. Ltd as instructed. Enraged by the Respondent’s act, the Appellant filed this suit before the Federal High Court, Abuja by an amended Statement of Claim claiming against the Respondent; Immediate payment of liquidated sum of seventy seven thousand U.S. Dollars ($77,000.00), being refund of the money taken out of the Plaintiff’s domiciliary account No. 0000330499 upon the Plaintiff’s instruction to transfer same to Better Trace Company Ltd account with HSBC Hong Kong, which the Respondent failed to do; damages in the sum of Thirty Eight Thousand U. S. Dollars ($38,000.00) for breach of the Respondent’s contractual obligation; and the sum of Three thousand, nine hundred (HKS 3900.00) Hong Kong Dollars being expenses incurred by Appellant in the effort to trace his money. The Respondent on its part said, it indeed carried out the Appellant’s instruction. At the end of the trial, judgment was entered in favour of the Respondent. The Appellant dissatisfied, filed this appeal vide his Notice of Appeal with eight Grounds of Appeal. The Respondent filed a Notice of preliminary objection on grounds that the law is settled that fresh issues may only be raised on Appeal where leave of Court has been first sought and obtained and since the Appellant did not seek and obtain the leave of this Honourable Court before raising and arguing the fresh issues under issues 3 of the Appellants Brief of Argument flowing from grounds 5 and 7 of the Notice of Appeal, the said grounds of appeal and arguments flowing therefrom are incompetent and ought to be struck out.
HELD
Appeal Dismissed
ISSUES
Whether the learned trial judge was right to have placed the burden of proof of a negative assertion on the plaintiff at the trial Court? Whether the learned trial judge was not in error by failing to expunge Exhibits C1, C2, C3, C4, C5, C6 C7 and D which are computer generated documents tendered in defiance of the conditions stipulated in Section 84(1) and (2) of the Evidence Act and thereby came to the wrong conclusion in the assessment of the case? Whether in the light of the pleadings and evidence lead thereon, the learned trial judge properly evaluated the evidence and came to the right conclusions?
RATIONES DECIDENDI
PRELIMINARY OBJECTION – PURPOSE OF PRELIMINARY OBJECTION
“The purpose of preliminary objection to an appeal is to contend that the appeal is incompetent and fundamentally defective which, if it succeeds would put an end to the appeal – NEPA vs Ango (2001) 15 NWLR (part 737) 527 and Order 10 of Court of Appeal Rules 2011. It should be noted that an objection to qualify as a preliminary objection should require serious argument and consideration on a point of law which if decided one way or the other is going to be decisive of litigations. Where a preliminary objection if successful, would not terminate the hearing of the appeal, a motion on notice should be filed – Okereke vs James (2012) 16 NWLR (part 1325) 339 at 342”. –
FRESH ISSUES ON APPEAL – REQUIREMENT FOR RAISING FRESH ISSUE ON APPEAL
“It is the law that where fresh issues are raised on appeal, leave of the appellate Court is required. See Jukok Int. Ltd Vs Diamond Bank Plc (2016) 6 NWLR (part 1507) 55 at 78 and Ajuwon Vs Adeoti (1990) 2 NWLR (part 132) 271”. –
GROUND OF APPEAL – STATUS OF A GROUND OF APPEAL UPON WHICH NO ISSUE IS DISTILLED
“It is trite law that a ground of appeal upon which no issue is distilled is deemed abandoned. As there is no issue formulated from Ground 8 of the Notice of Appeal, it is deemed abandoned, and accordingly struck out. See Wassah Vs Kara (2015) 4 NWLR (part 144) 374 Alubankudi Vs Attorney General of the Federation (2002) 17 NWLR (part 796) 38”.-
BURDEN OF PROOF – DEFINITION AND TYPES OF BURDEN OF PROOF
The Supreme Court in the case of Okene vs Nwankwo (2014) 15 NWLR (part 142) 93 at 99 defined burden of proof thus:
“The phrase “burden of proof” is used to describe the duty which lies on one of the either to establish a case or to establish the facts upon a particular issue”,
The Supreme Court went further to say at page 100: Burden of proof is two fold, viz:
a) The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the plaintiff, and it is called a legal burden.
b) The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other, and it is called evidential burden. See also Federal Mortgage Finance Ltd Vs Ekpo (2004) 2 NWLR (part 856) 100 and Ogule Ankpa Agatu Co-operative Group Farming Society vs Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (part 590) 234.
What the legal burden connotes is that it is an obligation imposed on a party to prove a fact in issue to the requisite standard of proof. A party who fails to discharge this burden placed on him will lose on the issue in question. This burden rests upon a party whether plaintiff or defendant who substantially asserts the affirmative of the issue. –
ADMISSIBILITY OF DOCUMENT –TEST OF ADMISSIBILITY OF DOCUMENT
“The test of admissibility is relevance. What the Court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue -Statoil (Nig.) Ltd Vs Induscon (Nig.) Ltd (2014) 9 NWLR (part 1411) 43 at 55. See also Daggash Vs Bulamal (2004) 14 NWLR (part 892) 144 and Nkonji Vs Njokanma (1999) 14 NWLR (part 638) 250.-
CLEAR AND UNAMBIGUOUS WORDS OF A STATUTE – MODE OF CONSTRUCTION OF CLEAR AND UNAMBIGUOUS WORDS OF A STATUTE
“It is the basic rule of interpretation that where words of a Statute are clear and unambiguous, those words shall be construed as to give effect to their natural or literal meaning. Nothing is to be added which is not included or taken out which is included – Jukok International Ltd Vs Diamond Bank Plc (2015) 6 NWLR (part 1507) 55 at 74. See also Okumagba Vs Egbe (1963) 1 NMLR 62 and Ogbuanyinya Vs Okudo (1979) 6-9 SC 32. –
TENDERING OF DOCUMENTS – EXCEPTIONS TO THE GENERAL RULE OF TENDERING OF DOCUMENT THROUGH ITS MAKER
“Though the general rule is that a document should generally be tendered through its maker vide Sec 91 of Evidence Act, there are exceptions to this general rule such as when the maker is dead or is unfit by reason of his bodily or mental condition or he is beyond seas and it is not reasonably practicable to secure his attendance. In all such circumstances, a non-maker can tender a document in Court. See Omega Bank Vs OBC Ltd (2005) 8 NWLR (part 928) 547 at 582. –
APPRAISAL AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE – PRIMARY RESPONSIBILITY OF A TRIAL COURT ON THE APPRAISAL AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE OF WITNESSES
“However to avoid unnecessary repetition, I may add briefly that it is the duty of the trial Court which sees and hears the witnesses to evaluate the evidence and pronounce on their credibility and ascribe probative value thereto. In other words, the appraisal of oral evidence and ascription of probative value to such evidence are the primary responsibility of a trial Court – Ukeje Vs Ukejeh (2014) 11 NWLR (part 1418) 384 at 391. See also Kim vs State (1992) 4 NWLR (Part 223) 17 and Sanusi vs Ameyogun (1992) 4 NWLR (part 237) 527. –
CASES CITED
Not Available
STATUTES REFERRED TO
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