CORAM

---

TUNDE OYEBANJI AWOTOYE – Justice of the Court of Appeal

ABUBAKAR MAHMUD TALBA – Justice of the Court of Appeal

VICTORIA TOOCHUKWU NWOYE – Justice of the Court of Appeal

---

PARTIES

---

1. SARKIN FULANI SUMAYE

2. ALHAJI DANGI

APPELLANTS 

---

1. ALH. ARZIKA MAITARKO

2. ALH. USMAN LADAN AMBURSA

RESPONDENTS 

---

AREA(S) OF LAW

---

CIVIL PROCEDURE, EVIDENCE LAW, TORTS, AGRICULTURAL LAW, CATTLE GRAZING DISPUTES, BURDEN OF PROOF, HEARSAY EVIDENCE, SPECIAL DAMAGES, GENERAL DAMAGES, DEPOSITION ON OATH, EVALUATION OF EVIDENCE, PLEADINGS

 

---

SUMMARY OF FACTS

This case arose from cattle grazing disputes between cattle rearers and farmers. On 28th February, 2018, the Respondents’ (farmers’) crops were allegedly destroyed by cattle belonging to the Appellants (cattle rearers) in Tungar Laka area. The 1st and 2nd Respondents filed separate suits on 9th May, 2019, which were subsequently consolidated by court order.

The 1st Respondent (Alhaji Arzika Maitarko) claimed N1,560,000.00 as special damages, N500,000.00 as general damages, and declaratory relief for unlawful destruction of his farm. The 2nd Respondent (Alhaji Usman Ladan Ambursa) similarly claimed N1,867,500.00 as special damages, N500,000.00 as general damages, and declaratory relief.

According to the evidence, PW1 (1st Respondent) testified that he found the cattle on his and the 2nd Respondent’s farms in the night preceding dawn of 28/02/2018, followed the cattle to their settlement where they were confirmed as belonging to the Defendants. PW1 arrested the cattle herders and handed over both cattle and herders to police. One Shekare, described as younger brother to 1st Defendant, allegedly told police that the cattle belonged to the Defendants.

The Kebbi State High Court delivered judgment on 24/06/2021 in favor of the Respondents, awarding all claimed damages. The court rejected the deposition on oath of DW1 and DW2 for non-compliance with Oath Act requirements, accepting only oral evidence of DW3 which it found incredible. The Appellants appealed this decision.

 

---

HELD

---

The appeal was dismissed. The Court of Appeal affirmed the High Court’s judgment and held that:

1. The Respondents successfully proved their case on balance of probability. The trial court correctly rejected DW1 and DW2’s depositions for non-compliance with Oath Act requirements, leaving only DW3’s oral evidence which was found incredible.

2. The testimonies of PW1 and PW2 were not hearsay evidence. PW1’s evidence about finding cattle on the farms and following them to confirm ownership was direct evidence, not hearsay.

3. The trial judge properly evaluated the evidence and correctly found for the Respondents based on credible evidence of PW1 and PW2 versus the incredible evidence of DW3.

 

---

ISSUES

---

1. Whether from the totality of the evidence adduced by the Respondents before the trial Court, they have proved their case against the Appellants on the balance of probability and preponderance of evidence?

2. Whether the trial Court was right in accepting the testimonies of PW1 and PW2 which were basically hearsay evidence?

3. Whether the learned trial Judge properly evaluated the evidence led by both parties in arriving at his conclusion?

 

---

RATIONES DECIDENDI

---

BURDEN ON CLAIMANT TO PROVE FACTS CLAIMED

---

“Whosoever desires judgment as to any legal right in his favour based on the existence of facts which he claims must prove the existence of those facts as encapsulated under Section 133(1) of the Evidence Act, 2011 (as amended).” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

CIVIL LITIGATION GOVERNED BY PLEADINGS

---

“Civil litigations are governed by pleadings and fact not pleaded goes to no issue whilst facts pleaded and no evidence is led in support or at variance are deemed abandoned.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

REQUIREMENT FOR STRICT PROOF OF SPECIAL DAMAGES

---

“Claim for special damages must be specifically pleaded and strictly proved. Where it is not so, recovery of the same will not be granted. Every item contained in the claim for special damages must be specially proved, and such proof must be characterized by testimony that ties each item with the evidence led.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

REQUIREMENTS FOR VALID DEPOSITION ON OATH

---

“Signatures signed outside the presence of the commissioner for oath fall short of the requirement of the status and such document purported be sworn before the commissioner for oath is not legally acceptable in Courts.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A. (citing BUHARI V. INEC)

 

---

APPELLATE COURT’S APPROACH TO WITNESS CREDIBILITY

---

“The findings of the lower Court on the demeanor of DW3 who did not give evidence before me cannot be faulted by me since they are not perverse.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

DEFINITION AND TEST FOR HEARSAY EVIDENCE

---

“The evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A. (citing IDI V. STATE)

 

---

DISTINCTION BETWEEN HEARSAY AND DIRECT EVIDENCE

---

“That on or about 28/2/2018 the 1st and 2nd defendants led their cows, grazed on my farm and that of Alh. Usman Ladan Ambursa inflicted total destruction, thereon. That in the night preceding the dawn of 28/2/2018 I found the 1st and 2nd defendants’ cow on Alh. Usman Ladan Ambursa’s farm and my farm and decided to follow them to their settlement where they confirmed as the defendants’ cows. The above piece of evidence is clearly not hearsay evidence.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

STANDARD OF PROOF IN CIVIL CASES

---

“Civil cases are decided on the balance of probability and preponderance of evidence.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

TRIAL COURT’S DUTY TO EVALUATE EVIDENCE

---

“The trial Court is duty bound to evaluate evidence and attribute probative value to same; the appellate Court can only do so where the trial Court fails to and arrived at a wrong conclusion.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

HEARING APPEAL WITHOUT RESPONDENT’S BRIEF

---

“By virtue of ORDER 19 RULE 10(3) of the COURT OF APPEAL RULES an appeal in which the Respondent inspite of having been served the Appellant’s Brief of Argument fails to file Respondent’s brief shall be heard without the necessity of an application by the Appellant to hear the appeal on the Appellant’s brief alone.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

TRIAL COURT’S ASSESSMENT OF WITNESS CREDIBILITY

---

“I have seen PW1 and PW2 testimony in this case, I only impressed by their evidence which was credible, reliable correct not being shake even under challenging cross-examination by the learned Counsel for the Defendant. On the other hand, DW3 evidence was incoherent and shady and not credible. He did not impress me as a witness of truth.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A. (citing trial judge)

 

---

CONSEQUENCES OF REJECTING DEFECTIVE DOCUMENTARY EVIDENCE

---

“With the deposition on oath of both DW1 and DW2 not being acceptable and there remaining only the oral evidence of DW3 which the lower Court considered to be incoherent shady and incredible, I resolve this issue in favour of the Respondent.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

OVERWHELMING IMPACT OF CREDIBLE EVIDENCE

---

“To my mind, the impact of the evidence of PW1 overwhelms any fault in the evidence of PW2. PW2’s evidence confirmed the arrest of the said cows by PW1.” – Per TUNDE OYEBANJI AWOTOYE, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

– Evidence Act, 2011 (as amended)

– Oath Act

– Court of Appeal Rules

 

---

OTHER CITATIONS

---

---

CLICK HERE TO READ FULL JUDGMENT 

---

COUNSEL

---

1. AHMAD A. FINGILLA, ESQ.For Appellant(s)…For Respondent(s)