Keystone Bank Limited V. Okeb Nigeria Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered by Honourable Justice M.M. Dodo on the 8thof March, 2012. The appellant dissatisfied appealed by a notice and grounds of appeal dated the 20th of April, 2012 but filed on the 24th of April, 2012.The grounds shorn of their particulars are:-
GROUND ONE:
The Learned Trial Judge erred in law when he set aside the sale of the filling station mortgage to the Appellant by the 1st Respondent as security for overdraft facilities granted to it by the Appellant.
GROUND TWO
The Learned Trial Judge erred in law when he held that Exhibit D was invalidated by Exhibit B executed between the Appellant and the Respondents.
GROUND THREE:
The Learned Trial Judge erred in law when he came to the conclusion that an unincorporated legal entity cannot be a party to a purchase transaction contrary to Section 72 of the Companies and Allied Matters Act, 2004, dealing with pre-incorporation contracts.
GROUND FOUR:
The Learned Trial Judge erred in law when he held
1
the sale transaction between the Appellant and Al Qudus Global Services Limited was a fraud without any proof of same beyond reasonable doubt.
GROUND FIVE:
The Learned Trial Judge erred in law when he awarded the sum of N76,014,800.00 (Seventy Six Million, Fourteen Thousand, Eight Hundred Naira) to the Respondent as general damages for loss of earnings when the said award is inconsistent with the principles of law for the grant of special damages and, therefore, unjustified.
GROUND SIX:
The Learned Trial Judge erred in law when he dismissed the Appellant’s Counter-claim on the ground that the Counter-claim was abandoned by the Appellant.
GROUND SEVEN:
The judgment of the trial Court is against the weight of evidence.
Dr. Joseph Nwobike, SAN of counsel to the appellant in his brief dated the 26th of May, 2015 and filed on the 27th of May, 2015 formulated the following issues for determination on behalf of appellant
1. Whether on a proper consideration of the documentary and oral evidence led by the parties at the trial Court, the decisions leading to and the order setting aside the sale of the Filling Station is unjustified.
2
(Grounds 1, 3 and 4).
2. Whether the decision of the learned trial judge invalidating the Deed of Legal Mortgage (Exhibit D) is altogether erroneous and unjustified in law. (Ground 2).
3. Whether or not the learned trial judge fell into a grave error when he held that the Appellant’s Counter claim was abandoned. {Ground 6}
4. Whether the award of damages in the sum of N76,014,800.00 is justified.
The following issues were formulated for the respondents in the brief settled by P. A. Akubo, Esq. SAN, of counsel:
1. Whether upon proper consideration of oral and documentary evidence led by the parties before the trial Court, the learned trail judge was right or justified in invalidating the Deed of Legal Mortgage, to wit, Exhibit “D and setting aside the purported sale of 1stRespondent’s Filling Station. (Ground 1, 2, 3 and 4)
2. Whether the learned trial judge was right in dismissing the Counter-Cl3im of the Appellant. (Ground 6)
3. Whether having regard to the entire circumstance, the learned trial judge was right or justified in awarding N76,014,800.00 as Special Damages or loss of earning Per Annum with effect from
3
October, 2005 till judgment as claimed by the Respondents.
PRELIMINARY OBJECTION:
The respondents formulated the following issues for determination in their preliminary objection:
1. Whether the appeal vide the notice of appeal dated the 20th day of April, 2012 is not tantamount to abuse of Court process and liable to be dismissed having regard to an earlier notice of appeal dated and filed on the 27th of March, 2012 by the same appellant on the same subject.
2. Whether grounds 3 and 5 of the notice of appeal dated 20th day of April, 2012 are not altogether incompetent having not directly arisen from the judgment of the trial Court delivered on the 8th March, 2012.
3. Whether ground 7 of the notice of appeal dated 20th April, 2012 ought not to be deemed as abandoned and liable to be struck out there being no issue thereof for determination by the appellant.
The issues formulated in the preliminary objection were adopted by the appellants.
On issue one of the preliminary objection it is submitted for the respondent that it is abuse of Court process for the appellant to file a notice of appeal dated the 27th of March, 2012,
4
contained at pages 6 to 10 of the additional record compiled by the respondents, and yet again file another notice of appeal on the 24th of April, 2012 against the same judgment of the trial Court, contained at pages 926 to 930 of Volume 2 of the record of appeal; learned counsel referred this Court to OPEKUN V. SADIQ (2003) 3 NWLR Part 814 at 485, SARAKI V. KOTOYE (1992) 9NWLR Part 264 at 188, DINGYADI V. INEC 2 (2010) 18 NWLR Part 1224Page 154 at 195, HARRIMAN V. HARRIMAN (1989) 5 NWLR Part 1196 and OWONIKOKO V. AROWOSHAIYE (1997) 10 NWLR Part 523 page 61at 77.
In response, it is submitted for the appellant while referring to TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1SCNJ 61 and TUKUR V UBA (2013) 4 NWLR Part 1343 90 at 116 that the Position of the respondents is misconceived because a process which is valid and issued in exercise of a right cannot constitute an abuse of Court process.
It is trite in a long line of decided cases that there is nothing wrong with filing more than one notice of appeal by an appellant, and where the appellant decides to withdrew one of the two notices which are of the same nature, as was done in this case, his
5
process would not be an abuse of process; see; DIAMOND BANK LTD v P. I. C. LTD[2010] ALL FWLR (Pt. 512) 1098, 1126, C-F. In effect, an appellant canvalidlywithdraw one of the two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal, see also SAVANNAH BANK OFNIGERIA PLC v. CBN [2009] All FWLR (Pt. 481) 939, 969; conversely, even if he does not withdraw such a notice, it is within the right of the Court to proceed to deem the earlier one as abandoned; see FRN V. DAIRO (2015) LPELR-24303-SC; accordingly this issue is resolved in favour of the appellant against the respondent
On issue two it is submitted for the respondent that ground 3 of the notice of appeal challenges the conclusion of the trial Court to the effect that an unincorporated entity cannot be a party to a purchase transaction; yet there is no such conclusion throughout the judgment of the trial Court appealed against.
That also there is no such award or claim as in ground 5 which challenges the award of N76,014,000 to the respondents as general damages, and the particulars are incongruous, because the ground talks of general damages, while the
6
particulars talk of special damages; he referred the Court to SARAKI V. KOTOYE supra and contended that grounds3 and 5 are incompetent.
In response it is submitted for the appellant that ground 3 questions the decision of the Court contained at pages 923 to 924 of the record of appeal, and the trial Court did indeed make those findings.
That with regard to ground 5 it questions the award of N76,014,800 to the respondents, and a party has the right to challenge the decision of the Court where the Court fails to consider evidence or make specific findings; learned counsel referred the Court to GAMBLE CO. V. G.S. & D.IND. LTD (2013) 1 NWLR Part 136 page 409 at 455.
The grounds of appeal in this case have been reproduced in earlier parts of this judgment, and it is clear from pages 923 to 924 of the record of appeal that ground 3 questions the decision of the trial Court on specific findings therein; while ground 5 questions the award of N76,014,800 and therefore well within the right of the appellant to challenge same; accordingly, this issue too is resolved in favour of the appellant, against the respondents.
Issue number three was not
7
contested in the reply, for reasons of which it is accordingly resolved in favour of the respondent, against the appellant, ground 7 therefore is deemed abandoned.
The resolution of issue three in favour of the respondent, makes little or no difference to the preliminary objection, overall. because it is not a threshold issue.
The preliminary objection has no merit, and is accordingly dismissed.
Having dismissed the preliminary objection, I now proceed to determine the main appeal; on the issues formulated for the respondent, because they cover all issues arising aptly.
Issue One:
Whether upon proper consideration of oral and documentary evidence led by the parties the trial Court was right or justified in invalidating the deed of legal mortgage, i.e. Exhibit D, and setting aside the purported sale of the 1st respondent’s filling station.
It is submitted for the appellant that the burden to prove the allegations in Paragraphs 10, 11, 12 and 13 of the further amended statement of claim is on the respondents; and also that the trial Court nullified the sale of the filling station by the appellant to Al Qudus Ltd based on, a) Al Qudus
8
was not a juristic person as at the time of sale, b) the sale was undervalued, in view of Exhibits B and D8, when contrasted with Exhibit D4 and (C) invalid execution of Exhibit D.
It is further submitted for the appellant that the law does not require that the sale of mortgaged property must be to a juristic person; and the allegation of fraudulent transaction between the appellant and Al Qudus in respect of the sale was not proved, even though it was denied by the appellant; learned counsel referred the Court to NWOBODO V. ONOH (1984) 1SC 1and JULES V. AJANI (1980) 5.7 SC 96.
That there was nothing to show that the appellant knew that Al Qudus Global Services was not registered at the material time: this shows the respondents failed to discharge the burden placed on them by Section 135 (1) & (2) of the Evidence Act, 2011, as the evidence of fraud was not conclusive or compelling; learned counsel referred the Court to SANUSI V. AMEYOGUN (1992) 4 NWLR Part 237 Page 527.
Learned counsel submitted that the mere fact that the sale was undervalued is not sufficient to vitiate the sale in the absence of bad faith or collusion, he referred the
9
Court to EKA-EKET V. NIG. DEV. SOCIETY LTD & ANOR (1973) NSCC Vol.8 page 373.
That the respondentsdid not prove collusion or the current value of the property as at 2005 when it was sold; he referred the Court to HAMZA V. KURE (2010) All FWLR Part 539 page 1070 at 1090.
In response it is submitted for the respondents that Exhibit B is the basis of the claim end counter claim, and it constitutes a contractual agreement between the appellant and the respondents, and therefore binds both parties; learned senior counsel referred the Court to SAKA V. IJUH (2010) 4 NWLR Part 1184 at 431 .
That conditions stated in Exhibit B were not complied with because the deed of legal mortgage executed by the respondents in line with item 7 of Exhibit B was not tendered by the appellant, so also the consent of the appropriate authority to mortgage, as provided in item 9of Exhibit B was not admitted.
That for those reasons, the appellant lacked the capacity to exercise automatic right of sale in the absence of valid and subsisting deed of legal mortgage, learned senior counsel referred the Court to FBN PLC V. SONGONUGA (2007) 3 NWLR Part1021 Page
10
230 at 262.
That also the deed of legal mortgage, Exhibit D, stamped on 17th of February, 2003 and registered on the 3rd of April, 2003 was not registered with the Corporate Affairs Commission as conceded by DW1during cross examination, and the purported consent to mortgage obtained from the Abuja Municipal Council elapsed before the deed of legal mortgage was eventually registered.
That fraud was pleaded and particularized at Paragraph 13 of the further amended statement of claim; that the valuation report dated 31st April, 2001, Exhibit D8 indicates that the filling station was valued at N81 Million, end the depreciated value is N45 Million, and Exhibit B shows that the forced sale value of the property is N48.32million; yet by Exhibit D4, the appellant sold the property at N35,000 far less than the market value in Exhibit D8.
That also the property was sold to a non-existent, unregistered company at the time, i.e. Al Qudus Global Services Ltd; indicating collusion and want of good faith, learned senior counsel referred the Court to IBIYEYE V. FOJULE (2006) 3 NWLR Part 968 Page 640 at 655, OKONKWO V CCB NIG. PLC (2003) 8 NWLR Part 822 Page 347
11
at 388, EKA-ETEH V. NIG. HOUSING DEV. SOCIETY LTD & ANOR (1973) NSCC 373 at 381 and W.A.B LTD V. SAVANNAH VENTURES LTD (2002) 10 NWLR Part 775 at 432.
Learned senior counsel further submitted that the learned trial judge averted his mind to the standard of proof in respect of the allegation of fraud, and did not merely presume the sale as fraudulent simply because it was sold to an unincorporated entity.
The respondents pleaded and particularized fraud at Paragraph 13 of the further amended statement of claim, in the purported sale of the property in dispute to Al Qudus Global Services Ltd for the sum of N35,000,000, as per page 421 of Volume 1 of the record of appeal, and Paragraphs 1e, f, 3 and 5 of the amended plaintiff’s reply to the statement of defense dated 12th of March, 2010.
It is contended for the appellant that the appellant is not by law obliged to conduct a search to ascertain whether or not the 1st respondent is an incorporated company at the time it purchased the property in dispute, and also that even if the purchaser was not incorporated at the time of purchase it still can enter into valid contracts of purchase of land, learned
12
senior counsel relied on Section 72 of the Companies and Allied Matter Act, 2004; that also the appellants acted in good faith in the transaction that led to the sale of the property in dispute.
Fraud is a serious crime by any standard, and in civil matter where alleged, the particulars must be pleaded and proved strictly, see FABUNMI V. AGBE (1985) 1 NWLR (Pt. 2) 299.
Fraud implies a willful act on the part of anyone, whereby another is deprived, by illegal or inequitable means, of what he is entitled to; and for the purposes of civil law it includes acts, omissions and concealments by which an undue advantage is taken of another, See ADIMORA V. AJUFO & ORS. (1988) 1 NSCC. 1005.
In proof of the allegation of fraud, the respondent, as plaintiff relied on the valuation report on the properly in dispute, dated 31st of April, 2001 by Kuma and partners, Exhibit D8, which indicates that the property in dispute, a filling station, is worth N81 Million; a depreciated value of the same property is put at N45 Million.
This assessment was reinforced by the witness’ statement on oath of DW1, deposed to on the 3rd of March, 2009, see page 359 of the record of
13
appeal, volume 1.
Yet the appellant sold the same property to Al Qudus Global Services Ltd for N35 Million, see Exhibit D4, a letter dated the 30th of September, 2005.
In an effort to establish fraud, the respondent was able to establish at the trial that as at 30th of September, 2005, the purchaser of the property in dispute, Al Qudus Global Services Ltd did not exist, because it was not incorporated, having been incorporated at the Corporate Affairs Commission only on the 2nd of July, 2008, see Exhibits D9, Q and R; a clear three years after the purported sale of the property in dispute.
These evidence were not contradicted by the appellant, as defendant during trial. On the contrary, they were reinforced by the testimonies of DW1 during cross examination; see page 844, lines 12 to 16 and page 845 lines 17 to 20 of the record of appeal, Volume 2.
Faced with these brazen acts of deceit and lack of good faith in the transaction leading up to the sale of the property in dispute the trial Court was compelled to arrive at the conclusion that the whole transaction smacks of fraud or lack of good faith to say the least, sufficient enough to nullify
14
the transaction, as pleaded and particularized; see Section 135(1) (2) & (3) of the Evidence Act 2011 and ABATCHA v. KURASTIC NIG. LTD (2014) LPELR-22703-CA.
Where fraud has been established, as in the instant case, the transaction by which the purchaser bought the legal estate will, by application of equity, be cancelled; more so as this Court is satisfied that the conclusion of the trial Court is impeccably in accord with a long line of decided cases such as ABOYADE COLE V. FOLAMI (1956) 1 FSC. 66 and OWOSHO & ORS. V. DADA {1984} 7 SC. 149 AT PAGES 175-176.
The respondents clearly discharged the burden of proof placed on them by law; bearing in mind that proof beyond reasonable doubt is not proof beyond any shadow of doubt
The findings of the trial Court at page 922 lines 6 to 15 of the record of appeal cannot be faulted.
The contention of learned senior counsel to the appellant that the learned trial judge merely presumed the sale as fraudulent simply because it was sold to an unincorporated entity is furthest from the truth, because evidently, the trial Court had shown it is well abreast of the law. especially Section 72(1) of
15
the CAMA, 2004, which allows for a yet to be incorporated company to enter into a valid contract
The trial Court made it very clear that the ability of an unincorporated company to enter into a valid contract is not the issue here, but that the property in dispute was sold to a non-existent company, not unincorporated; see page 923 lines of 15 to 17 of the record of appeal, Volume 2.
To drive home the point, the trial Court put it eloquently when it held to the effect that it would not have found any fault with the transaction, if the mortgaged facility was sold to an individual or corporate body that was in existence at the time of the sale, see page 924 lines 2 to 4 of the record of appeal, Volume 2.
This Court finds it equally hard to agree with learned senior counsel to the appellant that the trial Court did not evaluate the evidence led in this case, see Paragraphs 5 11.6 09 and 8-01 of the appellant’s brief, not least because evaluation is essentially the function of the trial Judge who does not share this jurisdiction with the appellate Court, see IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT 822) 308 at 343, 344 and 346: but
16
because the trial Court did in fact evaluate the evidence, see page 919 line 12 to 15 of Volume 2 of the record of appeal, where it held in Part:
“This Court has carefully studied all the claims at the plaintiff; it has also carefully analyzed the defense put forward by the defendant, I have gone further lo scrutinized the exhibits tendered and admitted in Court and verily verified theoral and written evidence given by PW1, PW2, DW1and DW2 respectively for their importance.”
In the circumstances therefore, this Court finds that the trial Court was right in setting aside the purported sale of the property in dispute, and accordingly resolves this issue in favour of the respondents, against the appellant.
Issue Two:
Whether the trial Court was right in dismissing the
counter claim of the appellant.
The appellant’s counter claim is contained at pages 563 to 564 of Volume 2 of the record of appeal; wherein it claimed among other things N3,334,990.69 as at September, 2007.
It is submitted for the appellant that a counter claim is a separate action and subject to the same rules of Court with regard to pleadings, and where evidence
17
is led in support of a counter claim, the trial Court is bound to evaluate same; learned senior counsel referred the Court to DABUP V. KOLO (1993) 9 NWLR Part 317 Page 254 at 270.
That in this case, the trial Court did not evaluate the evidence of the two witnesses who testified in support of the counter claim, but simply concluded that the claim was abandoned and proceeded to dismiss same; when he had a duty to evaluate the oral and documentary evidence led in support of the claim: learned senior counsel referred the Court to MKPINANG V. NDEM (2013) 4 NWLR Part 1344 Page 302 at 321 and DRAGETANOS CONST. NIG. LTD V. FMV LTD (2011) 16 NWLR part 1273 page 38.
That no effort was made by the trial Court to put the evidence of both parties on an imaginary scale to determine which one of them is more probative within the context of the counter claim; learned senior counsel referred the Court to OTITO V. ODlLI (2011) 7 NWLR Part 1245 Page 108
Learned senior counsel further submitted that there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplate the payment of
18
interest on sum borrowed.In spite of which the trial Court failed to evaluate the evidence led in support of the counter claim; he referred the Court to ARAB CHEM V. OWODUENYI (2013) 10 NWLR Part 1361 at 101.
In response it is submitted for the respondents that appellant did not substantiate its counter-claim because the two witnesses that testified for the appellant destroyed the very foundation of the counter claim, while the respondent denied the counter claim.
A counter claim as the name suggests is an independent action by the defendant, and not part of the original action, though for convenience the two are tried together, there is no separate hearing for a counter claim; the plaintiff in a counter claim gives evidence on his pleadings which would include his reply to the counter claim, where such a plaintiff fails to do so, he would be deemed to have abandoned his defense to the counter-claim, see NWAENANG V. NDARAKE & ORS (2013) LPELR-20720-CA.
Abubakar Naseh testified as DW1. his statement on oath is dated 3rd March, 2009at pages 353 to 362, of Volume 1 of the record of proceedings deposed in part as follows:
“The plaintiffs
19
are still indebted to the defendant in the sum of N3,334,990.69 as at September, 2007”.
This same witness stated under cross examination that the 1st respondent had a credit balance of N6 Million, thus contradicting himself fundamentally.
The witness even went as far as admitting that he had not seen any facility in the sum of N3.3 Million granted to the respondents, when he said as follows at page 845 of Volume 2 of the record of appeal:
“The credit balance of N6 Million exist after the sale N62,792,255.53. From this balance there wasn’t any credit facility taken by the 1st plaintiff from our bank. This I have never seen! From this stand I haven’t seen any facilitates of N3.3m even after the sale of the filling station. It is only somebody who physically visited the site who could tell what was happening there at the station. I have never even compile any records regarding that”
The second of the two witnesses Maimuna Mohammed stated during her cross examination at page 860 of Volume 2 of the record as follows:
“Yes the Para of my witness statement on Oath are not born out of my 1sthand knowledge. Yes from this Exh.F2 the statement of
20
account the 31/08/2005 entry show recorded debit balance of N28,101,914.81k. Yes a bit below I can see a credit entry of N35M on 22/09/05. That brought the account to credit balance of N62,922,53k; I couldn’t see from the date any evidence of the 1st Plaintiff borrowing any money from the Bank. I saw no where the credit balance was ever paid to the Plaintiff. Yes the last 4 sheets of Exh. F2 the entry from October 2004 up to August 2005 reflected several credit entries by the 1st Plaintiffs to his account. Meaning that the account was book out. I never see any debit in his account reading N3,334,990.69k. I have never in charge of the 1st Plaintiff’s account”
It is equally important to bear in mind that the respondents denied counter claim of the appellant, at Paragraphs 2, 3, 4, 6, and 7 of the amended defense to counter claim. dated 12thof March, 2010 at pages 394 to 395 Volume I of the record of proceedings, in addition Exhibit D5 clearly denied liability in respect of the counter claim, see pages 330 to 331 of Volume 1 of the record of proceedings and 822 to 823 of Volume 2.
Now in view of these, the contention by learned senior counsel for the
21
appellant, at Paragraph 7.04 of his brief to the effect that the respondents admitted the indebtedness to the appellant in the sum of N28,122,593.18 at 30th September, 2005 counts for very little.
Furthermore the contention by learned senior counsel for the appellant, also at page 25 of his brief that: “there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplates the payment of interest on sum borrowed” with respect, loses sight of both the fact and law that even if there was evidence of banker customer /relationship, if there is no evidence of debt or indebtedness established. it would not be the place at the trial Court to “envisage” or ‘contemplate’ payment of interest as argued, because Courts do not assume anything.
It is these failings on the part of the appellant to lead evidence on its counter claim that led the trial Court to the conclusion it did; because it is not simply enough to plead something, what is pleaded has to be supported by evidence, as pleadings are not synonymous with evidence. Averments in pleadings not supported by evidence are
22
bound to be discountenanced. See CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; MOTOH V MOTOH (2011) 16 NWLR {PT. 1274) 474.
In the circumstances therefore, the trial Court was right to hold that the appellant did not prove the counter claim; accordingly, this issue too is resolved in favour of the respondents, against the appellant.
Issue Three:
Whether having regard to the entire circumstances, the trial Court was right or justified in awarding N76,014,800 as special damages or loss of earning per annum with effect from October, 2005 till judgment as claimed by the respondents.
It is submitted for the appellant on this issue that the special damages of N76,014,800.00 awarded was not proved, and the evidence in that regard not evaluated by the trial Court; that the trial Court never said anything about the oral evidence, the demeanour of the witnesses and the documentary evidence led by the parties before it awarded damages; learned senior counsel referred the Court lo OGUNJEMILA V. AJIBADE (2010) 11 NWLR Part 1206 Page 559 at 579.
In response, it is submitted for the respondents that evidence was led in spite of the
23
appellants denial of the functionality of the filling station by the statement on oath of the 2nd respondent confirming the existence of a restaurant, and a super market in addition to a functional filling station.
That the special damages were proved without contradiction from the appellant; learned counsel referred the Court to HABIB NIG. BANK LTD V.OPOMULERO {2000) 15 NWLR Part 690 at 329 and SBN PLC V. CBN (2009) 6 NWLR Part 1137 at 308.
It is trite that special damages are items of loss which the Plaintiff has to particularize in his pleadings to enable him to give evidence thereto and to recover thereon, See ATTORNEY-GENERAL, OYO STATE V. FAIRLAKES HOTELS (NO 2) (1989) 5 NWLR (PT 121) 255; these type of damages must be strictly proved, see AGUNWA V.ONUKWUE (1962) 1 ALL NLR 537; (1962) 2 SCNLR 275 AND BASIL V FAJEBE 1990 6 NWLR (PT 155) 172.
The respondent averred to the special damages in this case in Paragraphs 14, 15, 16 and 17 of the further amended statement of claim dated 16th June, 2010; wherein it was stated to the effect that the filling station in dispute was actively taking delivery of products, and had in addition a
24
restaurant and a super market, see page 474 of Volume 1 of the record of proceedings.
The appellant did indeed contend that the filing station was not functional and therefore could not have suffered the loss claimed; see Paragraphs 14, 15, 16 and 17 of the emended statement of defense.
The respondents in support of their pleadings on the functionality of the tilling station and the existence of a restaurant and a supermarket led evidence at Paragraphs 1a, b, c, d, e, f, g, h, l, j, k, l, m, n,and o, as well as Paragraphs 2, 6, 9 and 10 of the statement on oath of the 2nd respondent deposed on the 25th of November, 2009as well as the statement on oath of Samuel Chimezie Eguzuowa, the PW3 at Paragraphs 4 to 17, see pages 225 to 226 of Volume 1 of the record of appeal.
Clearly the evidence of PWS1and 3 with regard to the functionality of the filling station and the corresponding loss of earnings was reinforced by Exhibits M to M22, N to N30 and P to P25 at page 834 of Volume 1 of the record of appeal, see U.T.B V. OZOEMENA(2007) ALL FWLR Part 358 1014 at 1049.
The contention of learned senior counsel that the evidence in this regard was not evaluated
25
is not justified, because the trial Court did evaluate the evidence before it before arriving at the decision it did, that much is very clear; and most importantly it is a trite principle of law that the function of evaluation of evidence is essentially that of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (Pt. 548) 118; Where the trial Judge has unquestionably evaluated the evidence before him, it is not the business of the appellate Court to disturb such findings of facts and substitute its own unless such findings are perverse, See WOLUCHEM v. GUDI (1981) 5 SC 291; ENANG v. ADU (1981) 11-12 SC 25: IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT. 822) 308 at 343, 344 and 346.
This Court is satisfied that the trial Court was justified in the circumstances in awarding the sum of N76,014,800. 00 as loss of earnings from the 22nd of October, 2005 as claimed; this issue too is accordingly resolved in favour of the respondents, against the appellant.
Having resolved all the three issues for determination in favour of the respondentsagainst the appellant, the appeal fails for
26
lack of merit, and it is accordingly dismissed.
Cost of N50,000.00 is awarded in favour of the respondents, against the appellant.
Other Citations: (2016)LCN/8975(CA)
