G.U.O. Okeke & Sons Ltd & Anor. V. Felix Usifor (2007)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J. C. A.

This is an appeal against the decision of the Ogun State High Court in Suit No.HCJ/83/2000 presided by M.O. Dipeolu J. The Respondent in this appeal was the Plaintiff at the lower court while the Appellant was the Defendant.

Respondent’s claim against the Appellant and one other person now deceased, jointly and severally, was for the sum of seven hundred and eighty-eight thousand five hundred naira (N788,500:00k) being special damages for the cost of repairs of Respondent’s Toyota Hiace Vehicle with Registration NO.AS 939 KJA and loss of income for (83) eighty-three days at the rate of N4,500:00k per day when the said vehicle was off the road following the accident caused by the negligence of the Defendants Respondent’s further claim included:-

(1) Interest on the aforesaid sum at the rate of 32% per annum from 10th may 1999 till judgment and thereafter at 10% till liquidation of the judgment debt;

(2) General Damages of N500,000:00k and;

(3) Cost of this action.

From his pleadings and the evidence led, Respondent’s case is that his vehicle was hit by another vehicle driven negligently by DW1 a person in the employment of the Appellant. The cost of repairs of Respondent’s damaged Toyota Hiace vehicle with registration No. AS 939 KJA was put at N450,000:00k by an engineering consultant engaged by the Respondent to estimate the cost of repairing the damaged vehicle. The vehicle was later towed and repaired.

On the other hand, Appellants’ case is that the accident and the subsequent damage on Respondent’s Hiace vehicle did not result from Appellant driver’s negligence. Instead, the impact of another vehicle hitting Appellants’ own coupled with another accident on the other side of the road caused the accident that damaged Respondent’s vehicle.

At the end of trial, the lower court on 22-2-2003 dismissed the Appellants’ counter claim and found for the Respondent in terms thus:-

(a) The sum of N415,000.00k being cost of repairs, panel beating and spraying of the Toyata Hiace bus with Registration No. AS 939 KIA with interest at the rate of 10% per annum from 18th February 1999 until today.

(b) N373,500:00k being loss of income for 83 days from 18/2/99 till 11th May 1999 at the rate of N4,500:00k per day and 10% interest from 18/2/99 till the judgment debt is liquidated.

Being dissatisfied, the 2nd Defendant at the lower court has appealed against the Court’s foregoing decision on a notice containing four grounds.

The two issues contained in Appellants’ brief for the determination of this appeal read:-

“(1) Whether the trial court actually evaluated the evidence of the parties and dealt with the issues in contention between the parties before reaching its decision.

(2) Whether the Plaintiff/Respondent proved his case before the trial court gave him judgment”.

Respondent has adopted Appellants’ two issues as having arisen for the determination of the appeal.

Appellant’s overall complaints in this appeal relate to the trial court’s improper evaluation of the evidence led by parties. These complaints permeate his two issues.

Appellant contends that Respondent’s case is as contained in paragraphs 7, 21 and 28 of the statement of claim. Respondent was never at the scene of the accident and that all that he told the court was based on what PW1, his driver, told him: that Respondent’s vehicle, Hiace Bus with registration No. AS 939 KJA, was involved in an accident with Appellant’s luxurious bus with Registration No. XA 530 NEN at Ejirin Road, Ijebu-Ode round-about; that Appellant’s driver sped into the expressway without slowing down. This negligent conduct of Appellant’s driver resulted into collision with Respondent’s vehicle, the injury to the passengers and damage to the vehicle as well. An engineering consultant engaged by the Respondent had assessed cost of repairs of Respondent vehicle at N438,951:00k which sum the Appellant inspite of repeated demand had refused, neglected or failed to settle. Respondent case also showed that Appellant’s driver had been charged to the magistrate court for his criminal negligence.

Learned Appellant Counsel submitted that Respondent deliberately avoided testifying and tendering Vehicle Inspection Officer’s Report that would have aided the court in its estimation of the damage to Respondent’s vehicle. The identity of Respondent’s vehicle involved in the accident in respect of which damage the Respondent’s claim at the lower court was based remained unproved. Whereas the Respondent testified that the bus had registration No. XA 939 KJA, PW1 Respondent’s driver and PW3 the investigating police officer told the court the bus was registered as AX 939 AKJ and AX 939 KJA respectively.

Lastly, Exhibit H the report of the expert witness, the engineering consultant engaged to assess the extent of damages on and the cost of repairs of Respondent’s vehicle, was tendered and admitted by the court without any background statement on the qualification of the witness.

Learned Appellant Counsel also recounted their case from their statement of defence and the testimonies of their witnesses. Counsel submits that the case made by the Appellant through the driver of his luxurious driver, now deceased, is that Appellant’s driver was involved in a different accident, at a different location and caused by another driver that had ran away; that Appellant’s driver was never detained for three weeks following any accident and that even though he was arraigned before the magistrate court the said driver was discharged and acquitted. The fact of his acquittal has been corroborated by PW3. Appellant’s further case is that the same driver was forced to pay the hospital bills of some injured passengers and the Appellant’s driver was neither taken to the scene of accident a second time nor did he sign Exhibit J the investigating officers’ report on the scene of accident.

Counsel submits that from the summary of the cases of parties at the lower court, the issues in controversy between them are on:-

“(a) the identity of Respondent’s vehicle through the various registration numbers assigned by three different witnesses of the Respondent: PW1, PW2 and PW3;

(b) the scene of the accident whether it occurred at the or left right side of a junction or at a market place;

(c) who invited the police that made Exhibit J and

(d) what is the effect of exhibit H a document of an expert admitted by the trial court without a resume of the qualification of the expert”.

Learned Counsel contends that the trial court’s failure to evaluate the evidence led before it and resolve these controversies is fatal. The court had the duty to amply consider and determine all issues dispassionately. Where this had not been done the appeal court must set-in to obviate the injustice the non evaluation of evidence by the trial court would occasion. Counsel relied on Okonji V. Njokanma (1999) 12 SC (Pt. 11) 158 at 165 and Sagaya V. Sajere (2000) FWLR (Pt. 7) 111 and urged us to evaluate the evidence led and resolve the controversy between the parties.

In further argument, Learned Counsel contends that a court of law must first of all ascertain that the witness who gives expert evidence is indeed the expert he claims. The qualification of the witness must therefore be established if the evidence he gives is to be useful in the determination of the issues in controversy. Since the qualification of the consultant who issued Exhibit H had not been given in evidence, the document is worthless even if admissible. Counsel relied on Idudhe V. Iseh (1999) 5 NWLR (Pt. 451) 47 and urged that the document be expunged. He asked that the issue be resolved in their favour.

One Dare says that Appellant’s 2nd issue is a proliferation of his first. Learned Appellant’s Counsel contends that Respondent who had asserted negligence on the part of the Appellant’s driver as the cause of the accident and subsequent damages to Respondent’s vehicle did not discharge the burden placed on him by Section 135 of the Evidence Act. Counsel again challenged Respondent’s failure to acquire the vehicle inspection officer’s report. This failure must by Section 149 (d) of the Evidence Act count against the Respondent. Learned Appellant Counsel further dwelt on the admissibility and probative value of exhibit H and insists that Respondent had not made out his case. Lower court’s judgment finding for the Respondent being perverse, on the authority of Okhuarobo V. Egharevba (2005) 5 SC (Pt. 1) 141 AT 176-177 should be set aside.

Learned Counsel urged that both issues be resolved against Respondent and the appeal be determined in Appellant’s favour.

Responding, Learned Respondent Counsel categorized the matters raised under the issues thus:

“(a) The hearsay nature of PW2 testimony on payment of hospital bill by and detention of DW1 for 3 weeks;

(b) The identity of Respondent’s Vehicle;

(c) Scene of accident and the evidence of PW4”.

Learned Respondent Counsel proceeded to review the testimony of particularly PW2, against the background of that proffered by DW1. Counsel submitted that Respondent’s testimony that Appellant had paid the hospital bills of passengers injured in the accident remains unchallenged and uncontroverted. Such evidence, it is maintained, must be acted upon by the court. Counsel relied on the case of Hassan & Ors V. Ifanyi & Ors (2002) 8 NWLR (Pt. 770) 581 at 611.

In specifically addressing the controversies which Learned Appellant Counsel asserted had remained unresolved, Learned Respondent Counsel submitted that what was averred as the Registration number of Respondent’s damaged vehicle is to be found in paragraph 4 of Respondent’s statement of claim: AS 939KJA. The mix-up as to the number by PW1, PW2 and PW3, Counsel contended, was due to pronunciation defects of these witnesses. However, exhibits A – A2 and B – B7 the photographs of the two vehicles involved have established the identity of the two vehicles including their registration numbers. So do the exhibit H the report of the repairs cost assessment expert, letters of the Respondent to the Appellant Exhibit C and Exhibit D, the sketch plan of the scene of accident drawn by the investigating police officer Exhibit D1. The various pieces of evidence in proof of the pleading of the Respondent left the lower court in no doubt as to the registration number of Respondent’s damaged vehicle in respect of which the instant claim was being pursued. If a lapse it was that PW1 PW2 and PW3 had mixed up what the registration number of the vehicle was, same had not occasioned any miscarriage of justice to warrant allowing this appeal. Counsel also relied on Okonji Vs. Njokoma (1999) 2 SC (Pt. 11) 150 at 161.

Learned Respondent Counsel also reinforced the submission of Appellant’s Counsel that evaluation of evidence is primarily the duty of the trial court and that the Appellate court interferes only if the trial court had failed to evaluate such evidence at all or did so improperly. Learned Counsel relied on the decision in Mainaje V. Gwamma (2204) 19 NSCQR 204 at 21 and submitted that in the instant case the trial court had fully evaluated the evidence before it thereby shutting out any interference by this court.

Counsel dwelt further on the exercise undertaken by the trial court. Paragraphs 7 and 8 of Respondent’s statement of claim contained his pleadings as to the scene of the accident. Of all the witnesses called by the Respondent, Learned Counsel contended, it was only PW3 who called the scene a market place because of the notoriety in this country that wherever heavy traffic abounds mobile traders mill around with their wares. Counsel submits that calling such places markets in the real sense presupposes stretching logic too far. Indeed, Learned Counsel submitted, Exhibit D the sketch of the scene clearly shows where the accident took place and same had been signed by PW1, PW3 as well as DW1 Appellant Counsel’s submission that the trial court had abandoned its duty of evaluating evidence, Learned Respondent Counsel submitted, also fails in this flank. The evaluation of evidence as to DW1’s negligence towards Respondent’s vehicle and in the course of his employment as a driver of the Appellant, Respondent Counsel submitted, is at pages 59 – 60. The court’s evaluation of evidence in that regard in addition to its further reliance on Exhibit H supplied by PW4 the consultant engineer who assessed the cost of repairs of Respondent’s vehicle, it is further argued, cannot be faulted.

Finally, Learned Respondent Counsel conceded that by Section 135 of the Evidence Act whoever asserts must prove. The burden is however not static in civil matters and that in the instant case Respondent had discharged that burden. The trial court also had fully evaluated the evidence led per the pleadings of parties and arrived at a just decision. Counsel relied inter alia on Ezemba Vs. Ibineme & Anor. (2004) 19 NSQR 352 at 372; Osawaru V. Ezeruka (1978) 6 & & SC 135 at 145; Bello V. Ringim (1998) 7 NWLR (Pt. 206) 668 at 675; Mogaji V. Odofin (1978) 4 SC 65 at 69-70 and M.I.A. & Sons Ltd. V. F.H.A. (1991) 8 NWLR (Pt. 209) 295 at 312 and submitted that this appeal lacks merit. He urges that it be dismissed.

The crucial questions raised in this appeal relate to the role of trial as well as the Appellate court in the task of evaluation of evidence and the use to which a trial court can put evidence both oral and documentary, the admissibility of which evidence depended on the fulfillment of certain conditions which conditions had not been fulfilled prior to their reception.

The Appeal also touches on the burden of proof in civil matters and whether the claimant in the instant case had infact discharged that burden.

It is trite that the evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court. It was that court that saw, heard and assessed the witnesses in the course of their testimony. This court has no business substituting its own views for that of the trial court where the trial court’s evaluation of evidence is satisfactory and/or unquestionable. Generally, the Court of Appeal intervenes in the evaluation of evidence if the complaint of non-evaluation or improper evaluation does not involve the credibility of witnesses. See Adeyeri II V. Atanda (1995) 5 NWLR (Pt. 397) 512 and Wuluchen Vs. Gudi (1981) 5 SC 291.

Again, a Plaintiff must bear the burden of proving his case. A party must only make the case he pleaded and on the evidence led in support of the pleaded facts.

Furthermore, wrongly admitted evidence which is in any case inadmissible or which is admissible on the fulfillment of certain conditions and such conditions had not been fulfilled and the person against whom same was admitted had objected to its being admitted must be expunged from the record and or ignored in the court’s eventual decision. See Owuala Kamalu & Ors Vs. Peter Ojoh (2000) 11 NWLR (Pt. 679) 505 at 512-513; Okeke Vs. Obidife (1965) NMLR 113 and Roderick Oneh & Ors Vs. Veronica Obi & Ors (1999) 7NWLR (Pt. 611) 487 at 499.

Still, parties must be bound by their pleadings and such pleadings that are not backed by evidence in their proof go to no issue as does evidence led without the necessary pleading. The courts have the duty of deciding cases and or causes only on the basis of issues joined in pleadings. See Oyekanmi VS. NEPA (2000) 15 NWLR (Pt. 690) 414 SC and Adesanya V. Aderonmu (2000) 9 NWLR (Pt. 672) 370 SC.

In the instant case, the Appellant made three complaints against the decision appealed against all of which border on either reception and reliance on evidence or improper evaluation of the evidence received by the trial court. One such complaint pertains to both PW3’s oral evidence and Exhibit H his assessment of the cost of repairs of Respondent’s vehicle. Appellant has urged that the lower court had unlawfully relied on both evidence and if same are discountenanced, Respondents’ case would fail. Respondent has contended, and rightfully too, that the oral and documentary evidence urged by the Learned Appellant counsel to be expunged are all relevant and admissible. They cannot therefore be excluded as contended by the Counsel. See Ibori V. Agbi (2004) 6 NWLR (Pt. 868) 78 Sc and Nwanji Vs. Costal Services (Nig.) Ltd. (2004) 11 NWLR (Pt. 885) 552 SC.

The principle in this circumstance is that where the evidence complained of is not by law inadmissible in any event, the Appellant who did not object at trial to the reception of the evidence has precluded himself from raising the objection he now does. See Salau Jagun Olukade Vs. Abolade Agboola Alade (1976) 1 NLR (Pt. 1) 67 at 73-75; Chief Bruno Etim & Ors Vs. Chief Oko Udo Ekpe & Anor (1983) 3 SC 12 at 36-37 and Chukwura Akunne Vs. Matthais Ekwund & Ors (1952) 14 WACA 59. The lower court’s reception and reliance on the evidence of PW3 including exhibit H cannot be objected to by the Appellant now. After all, it is not that the evidence is not in any event inadmissible but that conditions precedent to its being admitted had not been met.

Appellant’s further complaint in the appeal is on the issue of the registration number of Respondent’s damaged vehicle. He asserts that the Respondent, his driver as well as the investigating police officer had ascribed different registration numbers to the vehicle. Similar complaint of contradictions in the testimonies of witnesses was also made by the Appellant regarding the scene of accident. The lower court was best placed to choose which version to believe in the seemingly contradicting testimonies of these witnesses. The issue here borders on credibility and this court is not in the privileged position the trial court found itself in dealing with the evidence of witnesses to be able to make contrary findings. Appellant has not shown that the conclusions drawn by the trial court did not evolve from the evidence adduced at the trial after all and or the materiality of the contradictions.

As to the issue of the conflict in the testimonies of witnesses on what the registration number of the damaged vehicle actually is, it must be emphasized that only that number that had been pleaded needed to be proved. Any evidence that goes contrary to what had been pleaded invariably goes to no issue and same must be discountenanced. This is what the principle of bindingness of pleadings entails. See Agbanelo Vs. U.B.N. (Mg.) Ltd (2000) 7 NWLR (Pt. 666) 534 and Makinde Vs. Akinwale (2000) 2 NWLR (Pt. 45) 435 SC.

The number of the vehicle damaged by DW1 and in respect of which the Respondent claimed had been pleaded in paragraph 4 of Respondent’s statement of claim: AS 939 KJA. Only evidence that tallied with this averment is admissible. The testimonies of PW1, PW2 and PW3 being otherwise remain unavailing, in proof of the registration number of the Respondent’s damaged vehicle. The trial court, it is correct, could not have relied on the testimonies.

Beyond these seemingly contradictory and unhelpful testimonies are documentary evidence -negatives and pictures of the vehicle with the Registration numbers of the Respondent’s damaged vehicle: Exhibit ‘A’, A1 – A3 and Exhibit B; B1 – B2 – which have been admitted in evidence and Appellant, has not appealed against their being admitted and relied upon. This finding of the trial court persists see Orisakwe Vs. State (2004) 12 NWLR (Pt. 887) 258 SC and U.B.A. Plc Vs. S.A.F.P.U. (2004) 3 NWLR (Pt. 861) 516 CA. These documents prove conclusively what the registration number of the damaged is and most particularly the identity of the very vehicle. The lower court had not been left in any doubt as to this and its decision given these facts cannot be said to be wrong.

Also, Exhibit D1 the sketch plan of the scene of the accident, signed by both sides to the controversy and its maker, clearly shows the scene of the accident. Further to the lower court’s power, based on its privileged position, to choose whom to believe of the many witnesses who testified before it, it had these other pieces of evidence which tallied with the pleadings of parties. Each of this evidence formed a conclusive proof of the particular fact on which issue had been joined by parties.

On the whole, it must be conceded to the Respondent that with the evidence before the lower court what had been averred to in the statement of claim had, by preponderance of evidence, been proved. Appellants’ complaints against the judgment of the lower court having been debunked, the appeal has failed. It is dismissed with cost of N5,000.00k against the Appellant in favour of the Respondent.

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Other Citations: (2007)LCN/2382(CA)