Gabriel Ndibe & Ors. V. Patrick Sunday Ndibe (2008)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

The appeal in this case is against the decision of the Anambra State High Court presided over by the Honourable Justice E.U. Uzodike. The judgment appealed against was delivered on 25th October, 2006 in favour of the Respondent but against the appellants.

At the Court below, the Plaintiff, hereinafter referred to as the Respondent had claimed as per his amended Statement of claim dated 16th March, 1992 as follows:-

“Wherefore the Plaintiff claim against the Defendants jointly and severally the sum of N2, 000,000.00 (two million Naira only) as damage (sic) for assault and battery on the Plaintiff.”

In his judgment the trial Judge awarded the sum of N300.000.00 against the appellants jointly and severally in favour of the Respondent, according to the trial Court, “for the injury sustained on his right ear.”

Dissatisfied with the said judgment, the Appellants filed a Notice of Appeal dated 1st November, 2006 containing three grounds of appeal as follows:-

“1. GROUND ONE: Error in law

The trial High Court erred in law when it held that the Plaintiff has proved his case because he has permanent injury at the right ear without evaluating the evidence presented before it.

Particulars of error

(a) A court is expected to properly evaluate the evidence placed before it before arriving at any decision one way or the other.

(b) A dispassionate appraisal of the evidence adduced is expected of court before arriving at its conclusion.

(c) The trial court did not place the evidence adduced on that imaginary scale before arriving at the conclusion that the Plaintiff has proved his case.

2. GROUND TWO: Error in law

The trial High Court erred in law when it awarded N300, 000.00 damages against the appellants for the right ear injury sustained by the respondent.

Particulars of Error

(a) There is evidence before the Court that the 2nd defendant Alexander Ndibe fought with the respondent and in the process he chopped off the right ear of the respondent and swallowed it.

(b) Evidence abound which were not contradicted or challenged through cross-examination that the appellants were not at the spot where the respondent and the said Alexander Ndibe fought.

(c) The trial court did not make any specific finding of fact to the effect that the appellants were the people that fought with the respondent and in the process injured his right ear.

3. GROUND THREE

The judgment is against the weight of evidence.”

It is note worthy that the appellants indicated in their Notice of Appeal that they would file further grounds of appeal on receipt of the record of proceedings but there is nothing on record to show that any further ground of appeal was filed.

Briefs of argument were filed and exchanged by both parties. On the 10th of April, 2008 when the appeal came up for hearing, Chief O.B. Onyali, SAN of counsel to the Appellants referred to the Appellants’ brief of argument dated and filed on 22nd August, 2007 and the Appellants’ reply brief of argument to the Respondent’s brief of argument dated and filed on 2nd November, 2007. He adopted the two briefs and relied on them. He urged the Court to allow the appeal and set aside the judgment of the lower court including the damages awarded against the appellants.

Mr. V.U. Ugwu of Counsel to the Respondent referred to the Respondent’s brief of argument dated 6th October, 2007 but filed on 25th October, 2007. Although he claimed not to have a copy of the reply brief of the Appellants to the respondent’s brief but the Court’s record showed that the said reply brief was duly served on the Counsel to the Respondent. He adopted the Respondent’s brief of argument and relied on same. He finally urged the Court to dismiss the appeal and affirm the decision of the lower Court.

In their brief of argument, the appellants formulated the following issues for determination of the appeal arising from the three Grounds of Appeal.

Issues for Determination

“1. Whether the trial High Court properly evaluated the evidence presented before it. (Ground 1).

2. Whether on the evidence, the lower Court was right in awarding N300, 000.00 damages against the appellants for the right ear injury sustained by the respondent. (Grounds 2 & 3).

In the appellants’ brief of argument, the appellants argued the issues one after the other.

On Issue NO.1, learned Counsel referred to the Plaintiff’s claim against the defendants as contained in paragraph 15 of his amended statement of claim. He also specifically referred to paragraphs 11 and 12 of the same Amended Statement of Claim and contended that the Defendants/Appellants denied the assertions in those paragraphs and accordingly joined issues on them with the Respondent. Learned Counsel referred to the testimony of PW1 in respect of the said issues that were joined and quoted copiously from the record in examination in Chief and under Cross-examination. He also referred to the testimony of the Defendants/ Appellants, in particular, DW1, DW2 and DW3. Learned Counsel later referred to the judgment of the trial Court on page 100 at lines 10-13 of the record of appeal. He contended that the trial Court ought to place the evidence adduced by both parties on an imaginary scale and weigh them, before coming to a decision as to which evidence he believes and accepts and which one he disbelieves. He submitted that the trial judge in the instant case did not properly carry out evaluation of the totality of the evidence adduced. He submitted further that the trial Court did not make any specific finding of fact as to whether the appellants fought with the Respondent.

Learned Appellants Counsel gave the questions that flew from the issues joined as to “who assaulted the Respondent and who was the person who injured the right ear of the Respondent.” He submitted that the trial Court failed to make specific finding on them.

He submitted further that where the trial Court fails to carry out its traditional duty of evaluating the evidence elicited at the trial, at the instance of the affected party, the appellate Court is entitled to set aside the judgment. He cited; Ebba v. Ogodo (1984) 1 SCNLR 392; Akinriboya V. Akinsole (1998) 3 NWLR Pt 540) 101 at 114.

He urged the Court to resolve Issue NO.1 against the Respondent and set aside the judgment.

On the second Issue, learned appellants’ Counsel again referred to the Plaintiff/Respondent’s claim in paragraph 15 and the averments in paragraphs 11 & 12 of the Amendment Statement of Claim. He also referred to paragraphs 18, 19 and 22 of the Amended Statement of Defence of the Appellants including one Alexander Ndibe whereby they denied the assertions of the Respondent. He quoted extensively from the record, the testimony of PW1 both in examination in Chief and under cross-examination. He referred to the testimony of DW1 on the issues joined on which the Respondent did not call any witness after he alone had testified. Learned Counsel however contended that DW1 was not cross examined on the Issues joined. Whereas the DW2 and DW3 testified to corroborate and confirm the testimony of DW1, yet neither was cross-examined on the areas on which parties had joined issues. He therefore submitted that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. In other words, failure to cross examine a witness upon particular matter, he further submitted, is a tacit acceptance of the truth of the evidence of the witness. He cited, Abdul V. Bensu (2003) 16 NWLR (Pt 845)59 at 86, Njiokwuemeni V. Ochei (2004) 15 NWLR (Pt 895) 196 at 226-227.

Learned Counsel submitted that not having cross examined DW1 and DW3 on their testimonies on the issues joined, the trial court ought to accept their testimony as true and have acted on the evidence. He cited Daggash V. Bulama (2004) 14 NWLR (pt 892) 144 at 240.

Still on Issue NO.2, learned Appellants’ Counsel referred to the record to show that the Respondent had testified that it was the 2nd defendant that chopped off part of his right ear with his teeth and swallowed it. But the Respondent withdrew the case against the said 2nd defendant Learned Counsel contended that having forgiven the 2nd defendant who actually inflicted injury on the Respondent, the Appellants could not be made to pay for the act of 2nd defendant. He submitted that the trial Court was wrong in awarding the sum of N300, 000.00 damages against the appellants for the injury sustained by the Respondent on his right ear.

He urged the Court to resolve the second Issue against the Respondent and finally urged the Court to allow the appeal.

As I stated earlier, upon receipt of the Appellant’s brief of argument, the respondent filed his own brief of argument. In the said brief he adopted the two Issues formulated by the appellants from their grounds of appeal.

It is interesting to note that the respondent before proceeding to argue the Issues for determination in his brief of argument purportedly raised a preliminary objection to the three grounds of appeal filed by the appellant. According to him, the said grounds were not based purely on law but on facts or mixed law and facts. As a result he submitted that they ought to have obtained leave of the lower Court or this Court to appeal on those grounds. He cited, Akwiwu Motors & Anor V. Songonuga Dr. Babatybde (1984) All NLR 309, Akintola Aina V. The Queen 14 WACA 310, R V. Olagunju (1961) All NLR 21. He however did not urge anything on the Court on his objection. I shall come to this later in this judgment.

On Issue NO.1 whether the trial court properly evaluated the evidence presented before it, the Respondent submitted that the Appellants did not show that the evidence adduced by the Respondent was not sufficient to warrant the judgment given to him. In the same vein, the Appellants have not proved or slated that the judgment was perverse or that the trial Court made wrong conclusions. He submitted that it is the primary duty of the trial court to evaluate the evidence adduced at the trial and the appellate Court will not interfere save when the evaluation is perverse. And if the trial court did not introduce an extraneous issue, its findings cannot be said to be perverse, he concluded. He however gave circumstances under which an appellate Court can rightly interfere with the findings of facts. He cited Sunday Udoafia V. State (1984) 12 SC 39 at 176-171.

Learned Respondent’s Counsel contended that the Appellants have not shown that the improper evaluation of the evidence by the trial court caused the Appellants miscarriage of justice. He contended that there was no element of speculation as the injury the Respondent sustained was permanent, real and visible.

Learned Counsel referred to the evidence adduced on which the trial court relied and contended that the Respondent had proved his case on balance of preponderance of evidence. He submitted that where the strength of evidence is enough to support the conclusion reached by the trial court it will be out of place for the appellate Court to tamper with the findings of fact of the trial Court.

The Respondent referred to the various Exhibits tendered that supported the respondent’s case. He concluded by saying that the Respondent proved his case of assault and battery through preponderance of evidence.

On the second Issue whether on the evidence available the lower court was right in awarding N300, 000.00 damages against the Appellants for the right ear injury sustained by the Respondent, the learned Counsel contended that damages follow events in that the appellants did not in any way attack the Respondent on the injuries he sustained but merely called it a minor injury. He further contended that the Appellants agreed in their case that one of them, Alexander Ndibe, the 2nd defendant was the one who inflicted the injuries suffered on the Respondent. He submitted that since the Appellants acted in concert, they are liable as joint tortfeassors jointly and severally.

Learned Counsel contended that since the appellants were sued jointly and severally, it means that each and every one of them is liable and no one can escape liability. He submitted that the withdrawal of the case against one of the joint tortfeassors by the Respondent did not affect the joint and several liabilities of the appellants as pleaded by the Respondent. He cited, Ogbonnaya V. Mbalewe (2004) 38 WRN 89.

He submitted that the Respondent proved his special and general damages and was entitled to the award of damages. He urged the Court finally to dismiss the appeal.

In their reply brief of argument, the Appellants referred to the preliminary objection raised by the Respondent on the requirement of obtaining leave of Court to file the three grounds of appeal contained in the Appellants Notice of Appeal. Learned Counsel contended that the judgment of the trial court being appealed against is a final decision of the High Court. That being so, he submitted, that by virtue of Section 241 (1)(a) of the 1999 Constitution of the Federal Republic of Nigeria, appeal is as of right requiring no leave of Court so to file. He cited, and relied on USA Plc. V. Samba Pet Co. Ltd. (2002) 16 NWLR (Pt 793) 388.

He finally urged the Court to discountenance the Respondent’s brief of argument and allow the appeal.

Before I proceed further to consider the merit of this appeal, it is pertinent to look into what appears to be a preliminary objection to the appeal in the Respondent’s brief of argument. As I stated earlier, the Respondent at the commencement of his argument in the brief postulated that the three grounds of appeal filed by Appellants “are not based on law but on facts or mixed law and facts.” In that case he contended that the Appellants ought to have obtained the leave of the High Court or that of this Court to file the appeal on facts or mixed law and facts.

There is no doubt that the Rules of this Court make provision for raising and relying upon a preliminary objection to the hearing of an appeal. Order 10 rule 1 of Court of Appeal Rules, 2007 which came into force on the 1st day of September, 2007 provides as follows:-

Order 10(1) “A respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the appellant three days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.”

The above rule of this Court which is impari materia with the old Rules in Order 3 rule 15(1) of Court of Appeal Rules, 2002 had been given interpretation by this Court and the apex court of our land. The method of raising a preliminary objection is clearly prescribed in the rules of the Court, and the requirement is mandatory. Apart from giving the Appellant(s) three (3) clear days notice before the date of hearing, it is now firmly settled that the notice may be imbedded or incorporated in the Respondent’s brief of argument or by a formal separate notice or written objection or both, there is the need for the Respondent to, with the leave of the Court, move the objection formally before the hearing of the substantive appeal. See; Nsirim V. Nsirim (1990)3 NWLR (Pt 138) 285, Okolo V. Union Bank of Nigeria Ltd. (1998) 2 NWLR (pt 539) 168, Arewa ile Plc. V. Abdullahi & Bros (1998) 6 NWLR (Pt 554), 508; Tiza & Anor. V. Begha (2005) 33 WRN 158 at 171, (2005) 6 SCM 164, (2005) 5 SCNJ 168 at 178, Patrick D. Magit V. University of Agriculture, Makurdi & Ors. (2005) 2 SCM 226 at 237-238.

It must be noted that the object or purpose of the requirement of the notice to the Appellant on the objection is to safeguard against embarrassing an appellant and avoid his being taken by surprise at the hearing of the appeal. See; Chief Agbaka & Ors. V. Chief Amadi & Anor. (1998) 11 NWLR (Pt 572) 16 at 25 (1998) 7 SCNJ 367 at 370, Auto Import Export V. Adebayo & Ors. (2002) 18 NWLR (Pt 799) 554, (2003 1 SCM 154.

First and foremost, it is important to note that the Respondent in the instant case virtually failed to comply with the Rules of this Court on what he was expected to do when relying on a preliminary objection to the hearing of the appeal. Indeed, it does not seem that he was aware of the provisions in the Rules or not familiar with the rules of this Court at all. There was total non-compliance. In other wards, not only that the Respondent failed to raise the preliminary objection formally either by notice or incorporated in his brief of argument, it is clear that he neither sought nor obtained the leave of court to argue his preliminary objection. The Respondent’s Counsel proceeded straight to argue the appeal. It is settled also, that failure to formally obtain leave of court to move a preliminary objection before the substantive appeal is argued renders the objection to be deemed abandoned and not to be countenanced by the Court. The objection is liable to be struck out. See; Aremo II V. Adekanye (2000) 2 NWLR (Pt 644) 247 Equity Bank of Nigeria Ltd. V. Halilco Nigeria Ltd. (2006) NWLR (Pt 980) 568 at 570-580, Alhaji Tukur Mohammed V. Alhaji Abubakar Abdulkadir & Ors. (2008) 4 NWLR (pt 1076) 111 at 142-143, Oforkire & Anor V. Maduike & Ors. (2003) 13 NSCQR 339 at 347-348, (2003) 5 NWLR (pt 812) 116, (2003) 5 SCM 147 at 153-154, Onoehie & Ors. V. Odogwu & Ors. (2006) 2 SCM 95 at 101, A.G. Rivers State V. Ude & Anor. (2006) 12 (Pt. 1) 1 SCM 72.

In the circumstance, it goes without saying, that the objection to the grounds of appeal contained in the Respondent’s brief is incompetent and is accordingly discountenanced and struck out.

Now to the merit of the appeal. As I stated earlier, the appellants formulated two Issues from their three grounds of appeal and these Issues were adopted by the Respondent. Issue NO.1 is “whether the trial High Court properly evaluated the evidence presented before it.”

The appellants had submitted that the trial judge did not properly evaluate the totality of the evidence adduced before it and it failed to make specific findings of fact as to whether the appellants fought with the Respondent.

It is trite and the law is settled that it is the duty of a trial judge to evaluate the totality of the evidence adduced before his Court and make specific findings of fact on salient and relevant issues rose in the claim before him. This is required to be done before the trial judge comes to any conclusion. It has been held that failure of the trial judge to do so will not only vitiate his conclusion but will give the appellate Court power to interfere and carry out evaluation of such evidence and make proper findings of facts as long as the findings do not depend on the credibility of witnesses. See: Ogunleye V. Oni (1990) 2 NWLR (pt. 135) 745, Ejabulor V. Osha (1990) 5 NWLR (pt 421) 515; Alhaji Ranfu Gbadamosi V. Olaltan Dairo (2007) 2 SCM 48, (2007) 3 NWLR (Pt 1021) 282.

Similarly, it is trite law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of the Court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. See: Michael Arowolo V. Chief Titus Ifabiyi (2002) 3 SCM 1 at 8.

In the instant case, the Respondent had sued the Appellants at the lower Court. The defendants included one Alexander Ndibe who was the 2nd Defendant. However, the case was withdrawn against the 2nd defendant who happened to be the respondent’s brother of full blood. The Plaintiff/Respondent and all the defendants are descendants of same father, Ndibe Ekwunife who died intestate in 1962.

As shown in the pleadings of both parties, there was a dispute between the parties over a family farmland. Sometime, both parties met at the farm and quarrel ensued between the Respondent and his brother of full blood (Alexander Ndibe). According to the Respondent, on the order of the eldest son, that is, the 1st defendant, the 2nd defendant chopped off part of the right ear of the Respondent, and swallowed it up. The Respondent claimed to have fallen into unconsciousness after being beaten. He later reported the matter to the Police. In his Amended Statement of Claim, the respondent averred inter alia as follows:-

“11. The defendants were aware that there was an impending motion on notice for injunction to restrain them and their privies from entering and cultivating or doing anything whatsoever on the pieces or parcels of land in dispute but they defiantly went into most of these pieces or parcels of land cleared them and cultivated same but the Plaintiff did not join them in cultivating those pieces or parcels of land rather the plaintiff waited for 2 years to elapse before he entered into those parcels of land not entered by the Defendants and cleared them. The Defendants also cultivated the pieces or parcels of land in dispute in 1991 and when the Plaintiff did the same on those not cultivated by the Defendants the Defendants acting in concert beat up the Plaintiff with matchet, fists blows and sticks at the order of the 1st and 3rd Defendants.

12. At a stage during the beatings the 1st Defendant ordered that Plaintiff’s ear he cut off and which the 2nd Defendant did and chopped of part of the right ear of the Plaintiff and swallowed it up. The 2nd Defendant is full brother of the Plaintiff as is not the case in respect of the other Defendants. The Plaintiff fainted and the Defendants abandoned him in a farm about 2 kilometers from nearest resident building thinking that he was dead. The Plaintiff after regaining consciousness reported the case at Njikoka Police Station, Abagana and was hospitalized at Chisom Specialist Hospital. Awka for 11 days and on settlement of medical bills of the sum of eight thousand five hundred Naira (N8, 500.0) vide Receipt NO.101 of 10/8/91, the Plaintiff was discharged from the hospital.

Xray and photographs were taken and medical reports issued. The witnesses made written Statements to the Police. These documents will be relied upon at the hearing of this case,

13. The right ear which was chopped off and eaten raw by the 2nd Defendant has indelible, remarkable and visible soar disfiguring the Plaintiff’s appearance and feature and leaving unforgettable mark on the plaintiff’s right ear.”

The appellants denied the above averments and in their Amended Statement of Defence averred inter alia as follows in response to the above averments of the Respondent.

“18. In further answer to paragraph 11 of the Amended Statement of claim, the defendants state that on the day in question, they in company of two others arrived at one of their communal lands, “Isimkpu land” which like other Ndibe family lands was temporarily partitioned among family members for farming purposes only, to meet the plaintiff who had cultivated the entire land and was busy planting yams when the defendants intercepted him to know why he should cultivate the said entire land alone. The 1st, 3rd and 4th defendants in particular state unequivocally that they neither assaulted the plaintiff either singly or in concert with matchet, fist blows and or sticks nor did they order any defendants to assault plaintiff as alleged.

19. The defendant’s further state that as they (defendants) started planting cassava stems on their own various portions which the plaintiff unlawfully cultivated, the plaintiff pounced on the 2nd defendant and specifically and fiercely assaulted the said 2nd defendant who is his junior brother of full blood. The plaintiff seriously assaulted the 2nd defendant with a knife and also gave him hamar bite on the right thumb and nose and would have maimed/killed him (2nd defendant) but for the prompt separation by other defendants who singly arrived at the scene from were (sic) they were working at their own respective portion of the said “Isimkpu communal land.”
20. The 2nd defendant has already taken out an action at the Awka High Court against the plaintiff in respect of the above mentioned assault on him in Suit No. A/158/91: Alexander Ndibe V. Patrick Sunday Ndibe.

The said suit is specifically pleaded and will be founded upon at the trial.

21. The 1st, 3rd and 4th defendants further state that it was the plaintiff who assaulted 2nd defendant (his junior brother of full blood) seriously as a result of which both himself (plaintiff) and the 2nd defendant fought and sustained injuries.
22. In further answer to paragraph 12 of the Amended Statement of Claim, the defendants say that at no time whatsoever did the 1st defendant order the plaintiff’s ear to be cut off as alleged nor did the 1st defendant ever touch the plaintiff. The plaintiff did not faint on the said day but rather after the said assault on the 2nd defendant left the scene of the incident apparently for the Police Station. The purported medical bill of N8,500.00 (Eight thousand, five hundred Naira) allegedly incurred by the plaintiff and the Xray photocopy as well as the bogus medical reports issued appear ridiculous as the plaintiff could not have incurred such astronomical medical bill as a result of the minor injuries he sustained in the said encounter with the 2nd defendant. The 2nd defendant will rely on his medical Report and bill for treatment as well as maintain that the plaintiff’s account of his alleged injuries is mere magnifying to weep up sentiment and a gold digging venture by the said plaintiff.
23. The plaintiff had singled out his junior brother of full blood (2nd defendant) for the assault because of the belief of the said 2nd defendant in truth, equity, justice and honesty with respect to 1st defendant’s entitlement to “Ana Isi” according to Uruoji custom as against the plaintiff whose watchwords are arrogance, obstinacy, confrontation and aggression.
24. In further answer to paragraph 13 of the Amend Statement of Claim, the defendants state categorically that the plaintiff could not have been disfigured as a result of the minor injuries he sustained during the plaintiffs fight with the 2nd defendant.
25. The defendants will at trial urge this Honourable Court to dismiss the plaintiff’s case as misconceived, frivolous and gold digging venture as well as the Suit being incompetent and or not proper before the Court for misjoinder and abuse of the process of Court.

The defendants further aver that the plaintiff is not entitled to his relief in paragraph 15 of the Amended Statement of Claim.”

It is interesting to note and this is apparent on the record of proceedings before the trial court that two cases were consolidated. The first is A/100/91 Between: Patrick Ndibe V. Garbiel Ndibe & 3 Ors, and the second is A/158/91 Between: Alexander Ndibe V. Patrick Ndibe. The Plaintiff in the latter case, Suit No. A/158/91. Alexander Ndibe was the same 2nd Defendant in Suit No. A/100/91 where the present Respondent was the Plaintiff. He is the person said to be the brother of full blood to the Respondent against whom the respondent had withdrawn his own action – Suit No/A/100/91.

The other defendants, who are the Appellants herein, are half brothers to the Respondent.

In his judgment appealed against, the learned trial judge stated the testimonies of the Plaintiff/Respondent and that of the Defendants/Appellants and their witnesses. P.W.2 was the Assistant Chief registrar of High Court of Justice, Awka, Anambra State. He was on subpoena to attend Court. Various documents and exhibits that had been used in previous proceeding were tendered through PW2 and admitted by the Court. They include the Pictures of the Plaintiff/Respondent – Exhibits B.1, 2 & 3, an Agreement showing the formula for partitioning the land, Exhibit C, terms of Settlement in a Sister case, Exhibit D, Statement of Claim, and Statement of defence of 1st Defendant in Suit No. AA/55/88, Exhibits E. & F. respectively. Statement of Police Officer, Exh G. Medical Report, Exh. H. A receipt from Chisom Specialist Hospital. Exh. J. Statement by Dr. Udozo Okoye made to the Police Exh K. Similarly, the testimony of certain witnesses in previous proceeding was tendered by the Defendant/Respondent and admitted in evidence as Exh L. They are the Investigating Police Officer, Bernard Alifi, the Photographer Ceyril Anago and the Registrar of the High Court, Emmanuel Oraemesi.

It is note worthy that DW1, one Nnaerneka Nwokoye a motor driver testified, inter alia and was recorded in the judgment as follows:-

“As they were planting, the Plaintiff was also planting Yam seedlings. After a while the plaintiff and 2nd defendant started to fight. I ran with Augustine Uzomba who accompanied us to the scene. We separated them. The Plaintiff immediately took his knife and ran home. There was blood stain on the 2nd defendant’s nose and on his right thumb. He was bleeding in these places.

2nd Defendant later went to the hospital. The plaintiff was not unconscious on that day. It is not true that the 3rd defendant joined the 2nd defendant to beat him up after throwing him on the ground.”

Also in evidence as incorporated in the judgment of the trial Court is the testimony of the eldest member of the Plaintiff/respondent family. He was the 1st defendant but testified as DW2, Gabriel Ndibe. He was then 82 years old. He testified, inter alia, as follows:-

“On 1st May, 1991 we the Ndibe family observed that the plaintiff forcibly entered our land called ana isi nkpu and started cultivating there. Every body has a portion he or she was farming on that isi nkpu land. We agreed that everybody should cut cassava stems to plant on his or her portion of the ana isi nkpu land. All the 4 defendants and Augustine Uzomba and DW1 Nnaemeka Nwokoye.

When we came to the ana isi nkpu we met the plaintiff planting yam seedlings on my own portion of land. We started planting cassava stems on our various portions. I heard a noise. I went to the entrance area and saw the Plaintiff with a matchet and he was going out of the area. I saw the 2nd defendant bleeding from his nose and from his right thumb. He told me that he fought with the plaintiff when I asked him. The plaintiff and 2nd defendant have their own portions at the entrance of the land.

I called 2nd defendant and all the people working. We went to the Police Station at Abagana to lodge a complaint. I saw the Plaintiff at the Police Station and observed that the Plaintiff sustained injury at his right ear. I did not fight the plaintiff and will not pay the N2 Million he is claiming from me. He fought with his brother (2nd defendant). I was not there. I did not witness the fight. I did not get near the scene of fight and did not assault the plaintiff. I did not send any body to bite off his ear because I said he does not hear. I did not damage the plaintiff’s ear.”

DW3 was the 4th defendant now 3rd appellant. His testimony as recorded and incorporated in his judgment by the trial judge, inter alia, goes thus:-

“I saw the plaintiff planting yam seedlings on the plaintiff’s portion of the land, moved to my own portion to plant my own cassava stems. As we were planting, I heard a noise. The plaintiff and 2nd defendant were fighting at the boundary. DW1 and one Augustine Uzomba tried to separate them. As f ran towards them to assist in separating them, the people fighting had stopped fighting. The plaintiff took his knife and ran towards home. When I got to the scene the 2nd defendant was bleeding on the nose and the right thumb. At this stage the 1st defendant observed the wound on 2nd defendant and advised that he be taken to the Police Station before taking him to the hospital for treatment. We entered our pickup and went to the Police Station. As they were making statement to the Police the plaintiff came in his own vehicle and as he came down I observed that the plaintiff had a cut on his left ear. I did not fight with the Plaintiff. It was the Plaintiff and 2nd defendant who fought. I was not involved in the fight.”

With the above noted in the judgment of the trial Court, the learned Judge came to the following conclusion.

“From the evidence before the Court, the plaintiff was assaulted. He sustained injury on his right ear. The three defendants came together to the scene of assault. The plaintiff has proved his case on the balance of preponderance of evidence as required by law in civil cases.

The special damages claimed by the plaintiff must be strictly proved to succeed and he must establish credible evidence that would satisfy the Court as in the case of Dumez V. Ogboh (1972) 3 S.C. 196. In some cases it may be a documentary evidence of the loss sustained. The evidence must be credible. In the case before the Court the plaintiff permanently lost his right ear.

Judgment is hereby entered in favour of the Plaintiff in this case. The defendants are to pay the Plaintiff the sum of N300, 000.00 (Three hundred thousand Naira) jointly and severally for the injury sustained on his right ear.”

As shown above the first issue for determination is whether the trial Court properly evaluated the evidence presented before it.

As a general rule and it is trite that when the question of evaluation of evidence by a trial Court does not involve the credibility of witnesses but the complaint is against non-evaluation or improper evaluation or appraisal of the evidence adduced before the trial Court, an appellate court is in as good a position as the trial court to do its own evaluation. See; Abisi V. Ekweator (1993) 6 NWLR (pt. 302) 643 at 673-674, Cash Affairs Finance Ltd. V. Inland Bank Nig. Plc. (2000)5 NWLR (pt. 658) 568 at 580, Malle V. Abubakar (2007) All FWLR (pt 360) 1569, Edward Okwejiminor V. Gbakeji & 1 Or. (2008) 3 SCM 134 at 160.

Ordinarily, and it is settled law that an appellate court has no business in the evaluation of evidence adduced in a trial, due to its limitations of not seeing and hearing the witnesses testifying, unless it is clear that the trial court which has the duty to evaluate evidence failed to properly evaluate. See; Woluchem. V. Gudi (1981) 5 SC 291, (2004) 3 WRN 20, (2006) 2 LC 132.

However, I am disturbed with the way the judgment of the trial Court in the instant case was written. It is apparent that no evaluation or appraisal was carried out at all on the evidence adduced before the Court.

There is no doubt that no two Judges can write judgment in the same way using the same style. Judgment writing being an art in itself, individual judge is at liberty to write his own judgment in his own style in achieving the end result. Nevertheless, a good judgment is expected to contain certain essential components. They include: the setting out the nature of the action before the Court; the Issue(s) in controversy; a review of the case for the parties; consideration of the relevant law raised and applicable to the case; specific findings of fact and conclusion of the judge. It is however imperative to state the reason(s) for arriving at the conclusion reached by the Judge. When all the above are taken care of, it will show that the trial judge understands the fact of and the Issue raised in the case before him.

See: Onuoha V. The State (1988) 3 NWLR (Pt 83) 460, Igwe V. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt 363) 459 at 480-481; Akinfolarin V. Ademola (1994) 3 NWLR (Pt 335) 659, Godwin S.D. Ogolo & Ors. V. Chief J.T. Ogolo & Ors. (2003) 12 SCNJ 181 at 203.

In other words, on the proper approach to follow in a fact finding mission to enable a trial Court arrive at a just decision, it has been opined that the trial Court should first set out the claim or claims of the plaintiff, then the pleadings, the issues arising from those pleadings. Having decided on the Issues in dispute, the trial Judge should then consider the evidence in proof of each issue that arose, and then decide on which side to believe, and this has got to be a belief based on the preponderance of credible evidence adduced and the probabilities of the case. Thereafter, the trial Judge will record his logical and consequential findings of fact to be followed by discussion of the applicable law against the background of his findings of fact. See; Adeyeye V. Ajiboye (1987) 3 NWLR (Pt 61) 432 at 451 per Oputa, JSC; Gilbert Onwuka & Ors. V. Michael Ediala & Anor. (1989) 1 NWLR (Pt. 96) 182 at 209.

Ordinarily, the trial Court performs the function or primary duty of evaluation of evidence adduced, by placing the evidence called by either party to the case on every material issue on either side of an imaginary scale and weighing them together. Whichever then outweighs the other in terms of probative value ought to be accepted by the Court. See; Mogaji V. Odofin (1978) 1 SC 101 at 119; Woluchem V. Gudi (supra) at 306-307; Alhaji O. Sanusi V. Oreitan I. Ameyogun (1992) 4 NWLR (Pt 237 527 at 533.

Applying the above guidelines to the instant case, I am not in the slightest doubt in my mind that the trial Judge failed to appreciate the enormous responsibility saddled on him to properly evaluate or appraise the evidence adduced before his court before coming to the conclusion he arrived at.

At the trial Court, as clearly shown above, the plaintiff/respondent’s claim was N2 million jointly and severally against all the four (4) defendants for assault and battery allegedly committed against him. In his pleadings, the plaintiff had averred that he was beaten by the four defendants who acted in concert. The 2nd defendant on the order of 1st defendant chopped off part of the plaintiff’s ear and swallowed it up. The plaintiff fell into unconsciousness but after he had regained his consciousness he reported the matter to the police before he was hospitalized, where he stayed for eleven (11) days on admission.

However, it was the case of the defendants/appellants that it was a fight between the plaintiff and his younger brother of full blood, who was originally the 2nd defendant. One fact remains undisputed and uncontroverted. That is the fact that the plaintiff/respondent sustained injury on his right ear. But the issues the trial court was expected to resolve and make fact findings on, include whether indeed there was a fight between the plaintiff and the 2nd defendant; how the plaintiff came about the injury to his right ear; was the plaintiff actually assaulted by the four defendants? Is it true that the plaintiff was unconscious after he was allegedly beaten and had his ear chopped off?

It should be borne in mind that the defendants also pleaded and called evidence that from the fight between the plaintiff and 2nd defendant, the 2nd defendant also sustained injury on his nose and thumb. This piece of evidence was not challenged by the plaintiff or controverted under cross examination. In any event, the plaintiff had, while the case was pending withdrawn it against the 2nd defendant, whom he said had apologized and shown remorse to him.

It is very clear in the judgment of the trial Court that the Judge failed to properly evaluate the evidence adduced and make findings of facts before he came to the conclusion he arrived at on the issues joined.

Assault, which can be a tort or a criminal act, is “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. It may also mean the act of putting another person in reasonable fear or apprehension of any immediate battery by means of an act amounting to an attempt or threat to commit battery.” See; First Bank of Nig. Plc. & Anor. V. Ernest G.A. Onukwugha (2005) 16 NWLR (pt 950) 120 at 152.

On the other hand, battery, which is of criminal law, is the use of force against another, resulting in harmful or offensive contact. See; Black’s Law Dictionary, 8th Edition, pages 122 and 162.

I am of the firm view that the trial Judge did not perform his primary duty of evaluation of the evidence adduced before him as he should. If he had done so, he would have definitely come to the conclusion that the plaintiff failed to adduce credible evidence to prove his claim and should have dismissed the claim in its entirety. In the circumstance Issue NO.1 is resolved in favour of the appellants but against the respondent, in that the trial Court did not properly evaluate the evidence before the Court.

The second issue is “whether on the evidence, the lower Court was right in awarding N300, 000.00 damages against the appellants for the right ear injury sustained by the respondent”.

This issue is said to have been distilled from grounds 2 & 3 of the grounds of appeal. Ground 3 in particular, as earlier shown, is that, the judgment of the trial Court is against the weight of evidence.

In the first instance, it is trite that when an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before the trial Judge. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, as stated earlier the trial Judge, after a summary of all the facts must put the two sets of facts on an imaginary scale, weigh one against the other; then decide upon the preponderance of credible evidence which weigh more, accept it in preference to the other and then apply the appropriate law to the case. See; A.R. Mogaji & Ors. V. Madam Rabiatu Odofin (Supra) at p.93 per Fatayi-Williams, JSC (as he then was) of blessed memory. Onwuka V. Ediala (supra) at p.208 per Oputa, JSC.

It is interesting to note that the Plaintiff/Respondent at the trial Court merely claimed N2 million damages against the defendants/appellants for assault and battery on him without more.

As earlier stated in this judgment, there was no iota of credible admissible evidence to prove that the injury sustained by the plaintiff/respondent was inflicted on him by the appellants. From the improper evaluation of the evidence adduced before the trial Court, there was no finding of fact that the plaintiff was beaten by the defendants and the injury sustained was as a result of the beating.

Therefore how the trial Court came to award damages of N300, 000 against the appellants leave much to be desired.

Damages are money claimed by, or ordered to be paid to a person as compensation for loss or injury.

In other words, damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. See; Black’s Law Dictionary, 8th Edition, Page 416.

Generally, the object of an award of damages is to give compensation to the plaintiff for the damages, loss or injury which he has suffered. However, before damages can be recovered by a claimant there must be a wrong committed by the party against who the damages is recoverable. In other words, recoverable damages by the plaintiff must be attributable to the breach of some duty by the defendant. See; Bourhil V. Young (1943) A.C. 92, Chief Peter A. Adene & Ors, V. Alhaji Dantunbu (1994) 2 NACR 74 at 86.

Damages can be either general or special damages. General damages is described as “such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct, and proximate result, or such as necessary result from the injury, or such as did infact result from the wrong, directly and proximately and without reference to the special character, condition, or circumstances of the Plaintiff.” While special damages are “those which are the actual, but not the necessary result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or condition.” They are damages that are alleged to have been sustained in the circumstances of a particular wrong. See; Black’s Law Dictionary, 6th Edition, pages 391 and 392, 8th edition at pages 419, Shell Petroleum Dev. Co. Nig. Ltd. V. Chief Tiebo VII & Ors. (2005) 22 NSCQR (Pt 1) 69 at 93.

However, it is settled law that the principle in regard to the assessment and award of special damages is different from that of general damages. See; Ijebu Ode Local Government V. Adedeji Balogun & Co. (1991) 1 NWLR (Pt 166) 136 at 158, Eseigbe V. Agholor (1993) 9 NWLR (Pt 316) 128 at 145, Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493 at 502-503. While special damages are required to be specially pleaded, strictly proved and accordingly awarded by the Court, general damages are averred, if necessary under specific heads of claim, presumed in law to be direct and natural consequence of the act complained of and award at large. See; Rockonoh Property Co. Ltd. V. Nigerian Telecommunications Plc. & 1 Or. (2001)10 SCM 117 at 136.

Where special damages are claimed, it is trite that not only must it be specifically pleaded with relevant particulars but must also be strictly proved with credible evidence without which it cannot be awarded. See; Shell BP V. Cole (1978) 3 SC 183, Dumez V. Ogboh (1977) 2 SC 45. Osuji V. Isiocha (1989) 3 NWLR (pt 111) 623 at 633.

There is no doubt that the Respondent’s case was improperly drafted and presented at the trial Court. In the first instance, the plaintiff did not pray for any declaratory order on the injury he sustained consequent to which he was claiming damages against the defendants jointly and severally. As a result, the trial Court did not make any specific findings on the issues that were joined, such as how the respondent sustained the injury on his right ear. No specific order was therefore made on any wrong as having been committed by the defendants/appellants. I am therefore convinced that the respondent did not prove any wrong doing against the appellants to entitle him to any amount of damages as compensation from them.

Ordinarily, where a plaintiff woefully fails to prove his case, the proper order the law requires the trial court to make is that of dismissal of his case. In other words, although where a trial court, as in this case, fails to make findings on the issues duly joined by the parties in their pleadings and submitted for adjudication, an appellate court will order a retrial when the evidence on record is such that it cannot make its own findings not having seen or heard the witnesses, it should be noted that an order of retrial is not appropriate and should not be made where a plaintiff failed completely to prove his case, and no irregularity of substantial nature apparent on the record to justify the making of such order. See; Xtoudos Services Nigerian Ltd. & 1 Or. V. Tatsel (W.A.) Ltd. & 1 Or. (2006) 26 NSCQR (Pt 2) 1185 at 1206.

In the instant case, the Plaintiff/respondent did not seek before the trial Court, any declaratory relief but merely claimed damages. This cannot stand without any wrong apportionable and sought to be ascribed to the defendants. The respondent also failed to prove how he is entitled to the damages claimed against the appellants. The trial court was therefore wrong to have awarded the sum of N300, 000 or any amount at all against the appellants in favour of the respondent. Accordingly, the second Issue is hereby resolved in favour of the appellants.

As shown above, the trial Court ought to have dismissed the Plaintiff/respondent’s case for his total failure to prove his claim against the defendants/appellants. Accordingly, he (the respondent) is not entitled to an order for retrial as that will give him another opportunity, which he does not deserve, to bite the cherry.

In the final analysis, this appeal succeeds and is hereby allowed. In the circumstance, the judgment of E.U. Uzodike, J, in Suit NO.A/100/91 & A/158/91 consolidated is set aside as the plaintiff/respondent’s case is dismissed.

Even though costs ordinarily follow events, with the peculiarity of this case I shall make no other as to costs.

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Other Citations: (2008)LCN/2803(CA)