Mr. Innocent Ibe V. Mr. Stephen Ibhaze (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
By a Writ of Summons and Statement of Claim dated the 1st day of March 2010, the Respondent, as Plaintiff before the lower Court, claimed the following:
1. The sum of N4,280,000.00 which the Defendant collected from the Plaintiff without consideration.
2. 20% interest P.A on the said sum from June 2009 until Judgment.
3. 10% interest P.A on the Judgment sum until Final liquidation.
In proof of his claim, the Respondent testified as PW2 and called one witness. He also subpoenaed the Principal Registrar attached to the Chief Magistrate Court, lbrahim Taiwo Road, Kaduna to produce some exhibits tendered at a criminal suit before that Court.
All the three Appellants testified in their defence. Upon conclusion of trial and the consideration of the parties’ written addresses, the trial Judge, Hannatu A.L. Balogun of the Kaduna State High Court, on 6/11/2011, entered judgment against the Appellants as prayed.
Dissatisfied with this decision, the Appellants filed a Notice of Appeal dated 8/7/2011, subsequently amended by leave of the Court on 5/10/15. The Amended
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Notice of Appeal, filed on 6/10/2015, contained 5 grounds of appeal.
The Appellants’ Counsel, V.A.B. Ewuzie Esq, in the Appellant’s Brief of Arguments, dated and filed on 5th October 2015, formulated 3 issues for determination, namely:
1. Whether the learned trial judge properly and adequately assessed and evaluated the evidence before her in arriving at the decision that the Respondent has proved his case beyond reasonable doubt.
2. Whether the learned trial judge rightly premised her judgment against the Appellant on criminal allegation of “scam” when there was no evidence that the Appellants were arraigned, prosecuted and found guilty of the alleged crime.
3. Whether the learned trial judge rightly awarded and granted to the Respondent (plaintiff in lower Court) 20% interest per annum on the sum of N4,280,000.00 (four million two hundred and Eighty thousand Naira) only being claimed where there is no evidence to that effect and against all known legal principles guiding award of interest.
A.B. lweka Esq, for the Respondent, in his Brief of Arguments, dated 19th November 2015, filed on 25th November but deemed properly filed by this
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Court on 16th February 2016, formulated, similarly,3 issues for the Court’s determination, namely:
1. Whether the Respondent proved his case at the Court below.
2. Whether the trial Court’s judgment was based on “scam” and whether the trial and conviction of the Appellants in a criminal trial is a condition precedent to the success of this suit.
4. Whether from the circumstances of this case the trial judge was wrong in awarding post judgment interest of 20% in favour of the Respondent.
The issues raised by both Counsel, I note, are similar. I shall adopt, as the issues that arise for determination, the 1st and 3rd issues raised by them, rephrasing them for succinctness, as follows:
1. Whether the learned trial judge properly and adequately assessed and evaluated the evidence before her in arriving at the decision that the Respondent has proved his case beyond reasonable doubt.
2. Whether the trial judge rightly awarded the Respondent 20%interest per annum on the judgment sum of N4,280,000.00
The 1st issue for determination is:
Whether the learned trial judge properly and adequately assessed and evaluated the evidence
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before her in arriving at the decision that the Respondent has proved his case.
The facts of this case, as presented by the Respondent in his pleading, supported by his duly adopted depositions before the Court, are that, on or about 3/6/09, he was contacted by the 3rd Appellant, who introduced himself as “Engineer Ben”, posing as staff of NNPC Port Harcourt, and informed him that he wanted him (Respondent) to supply some parts used in sealing oil pipe leakages. Thinking he was one “Ben” a one time church member, a fact confirmed by him, he agreed to this proposal. He was directed to the 1st Appellant who would sell to him 10 (ten) packets of oil seals at the cost of N390,000 each, to be supplied to some “consultants” coming in from Port Harcourt, for the sum of N490,000. Contacting the 1st Appellant, to whom he was directed, he was informed that the price of the seals had increased to N400,000 per packet. One “Paul Armstrong” who introduced himself as one of the “Consultants”, but who he later found to be the 2nd Appellant, called him to confirm that they were coming with money to buy the 10 packets, but that he should buy one packet as a sample.
In
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the interim, he received another call from a man claiming to be “Peter ldoko”, claiming to be a staff of Corporate Affairs Commission (CAC), who informed him that the Consultants had explained the nature of the contract to him but that on going through the records of the CAC, it was discovered that the Respondent is not a registered contractor and until he was registered he could not execute the contract. He was directed by the said “Peter ldoko” to pay the sum of N280,000, the cost of registration, into the account of one “Abubakar Yusuf”, said to be a Principal Officer of the CAC. “Ben” confirmed this, in consequence of which he paid the said sum into the stated account.
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As directed, he bought one packet from the 1st Appellant at the sum of N400,000. He was persuaded by “Paul Armstrong? (2nd Defendant) to buy the rest of the 9 packets as the “Consultants” are coming with cash from Port Harcourt and would be in a hurry. Having only just retired from ideal Flour Mills, Kaduna, he withdrew the sum of N2,000,000 (Two Million Naira) from his retirement benefits, recently paid to him, which sum he gave to the 1st Appellant, and collected the other nine
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packets, promising to pay the balance. He was, however persuaded by the Appellants to pay the balance of the money to the 1st Appellant, in consequence of which he withdrew the balance of N1.6 Million which was paid on the directive of the 1st Appellant into the account of one “Engr Daniel Bulus” at Spring Bank.
Phoning “Armstrong” (2nd Appellant) for payment, he was told that they could not pay as the banks were not open, it being a public holiday. He later on in the day received a call from a stranger who told him not to bother to go to the meeting point at Hamdalla Hotel as he was a victim of “419” and that the oil seals bought at N400,000 per packet were actually bicycle parts which cost only N800 per packet. All attempts to contact the Appellants proved abortive as their phones had been switched off. Realising that he had been a victim of fraudsters, he reported the matter to the Police and submitted the “oil seals” to them.
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As luck would have it, the following month, July 2009, he visited a friend, lsaac Afaleokhan (PW1), a fellow retiree from the same company, Ideal Flour Mills, only to be informed of the same proposal made to him and mentioning
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the same names of those who duped him. He urged PW1 to play along with them, to allow him arrange for their arrest.
Having alerted the Police and the Respondent, PW2 went to the designated place where he had been directed to purchase the “oil seals”. All three Appellants came. The Police was, however, only able to arrest the 1st Appellant, as the 3rd Appellant, who was at the steering, drove off with the 2nd Appellant. An “oil seal” given by the 3rd Appellant to PW2 as sample, was also recovered. Fortuitously, about July 2010, while driving down the Nnamdi Azikiwe Expressway, Kaduna, he saw the Appellants’ vehicle, with them inside. He followed the vehicle to the different places where each Appellant was dropped. He caused the 1st Appellant to be arrested. The present suit was instituted against the Appellants in consequence.
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At the trial, the Principal Registrar attached to Chief Magistrate Court, lbrahim Taiwo Road, Kaduna, produced, on subpoena, some bicycle parts, which, she said, had been described as oil sealants, tendered in KMD/47X/2010, COP v lnnocent Ibe. The 10 packets of bicycle parts tendered before the Magistrate Court by the Police as
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Exhibits B1-B10, were received by the lower Court as Exhibits P3A-P35.
The Respondent also tendered at the lower Court, an Access Bank Deposit Slip dated 4/6/09 in the sum of N280,000 (Exhibit P1) paid by the Respondent to the account of “Abubakar Yusuf”. Further tendered is a deposit slip of Spring Bank, dated 8/6/09 also paid by the Respondent to the account of “Engr Daniel Bulus” for the sum of N 1,600,000 (Exhibit P2).
The defence of the Appellants was an outright denial of the facts of the case. They also denied any knowledge of either the Respondent or PW2.
Arguing the 1st issue, whether the learned trial judge properly and adequately assessed and evaluated the evidence before her in arriving at the decision that the Respondent has proved his case beyond reasonable doubt, learned Counsel to the Appellants submitted that the trial Judge did not properly and adequately assess and evaluate the evidence before arriving at her decision. The standard of proof in civil suits, he said, is on the balance of probabilities and not beyond reasonable doubt as held by the trial Judge. He denied that there was proof before the lower Court that the
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Appellants collected N4, 280,000.00 (Four Million Two hundred and Eighty Thousand Naira only) nor any sum at all from them. He stated that the Respondent failed to produce a receipt for the N400, 000 and the N2 Million. The Court should thus resolve the non production of the receipts against him, by reason of Section 167(b) of the Evidence Act 2011 that this evidence which could be produced, was not produced. The burden placed on the Respondent by Section 135-137 of the Evidence Act has thus not been discharged, which onus is for him to succeed on the strength of his own case and not on the weakness of the defence. He cited Anike v SPDC (Nig) Ltd (2012) All FWLR Part 638 Page 975, Ogundepo v Olumesan (2012) All FWLR Part 609 at Page 1136 and Gambari v lbrahim (2012) All FWLR Part 644 Page 29. The evidence of PW1, he also submitted, was hearsay and inadmissible and was therefore wrongly admitted, citing Section 77 of the Evidence Act and the case of Punch Nigeria Ltd v Jerusim Nigeria Ltd (2011) FWLR Part 507 Page 768. He accused the trial Judge of failing to evaluate the evidence of both parties but acting on mere speculation.
He submitted further that
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where crime is alleged in a civil matter, the particulars of the crime must be specifically pleaded and proved beyond reasonable doubt. In this case, the particulars of crime were not pleaded and the elements of crime not proved.
In oral address, he added the cases of Psychiatric Hospitals Management Board v Edoso (2001) FWLR Part 141 Page 1799 and Shell Petroleum v Olanrewoju (2003) FWLR Part 140 Page 1640.
The Respondent’s Counsel, on the 1st issue for determination, giving the facts of the case as presented by the Respondent, submitted that the Respondent had succeeded in proving his claim, while the defence led no evidence to contradict the Respondent’s claim. The duty of assessing and evaluating evidence and ascribing value to it, he said, is that of the trial Court. The findings of the trial Court were supported by evidence, he submitted. The Appellate Court, he urged, does not lightly interfere with the findings and conclusions of the trial Judge unless the findings are not supported by evidence. He pointed out that the trial Judge believed the evidence of the Respondent’s witnesses and disbelieved the defence, all of which findings were
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supported by evidence.
Responding to the accusation of withholding evidence, Counsel denied this, submitting that the Respondent gave a graphic account of how the payments were made, referring to the tellers tendered. On the onus of proof, Counsel submitted that the onus of proof in a civil case is not static. Once the Plaintiff discharges the evidential burden placed on him, the onus shifts to the Defendants to show that the Plaintiffs claim is not maintainable. The Respondent duly discharged the burden placed on him. The Appellants, to whom the burden then shifted, failed to lead any cogent evidence. Counsel denied that the evidence of the Respondent or PW1 amounted to hearsay or offensive to Section 77 of the Evidence Act but was direct evidence within their personal knowledge. The evaluation of evidence and ascription of value to it is that of the trial Judge, which this Court can only interfere with if the findings of the trial Court are not supported by evidence. The trial Court fully evaluated the evidence and made findings properly supported by evidence. He pointed out that the Respondent was never cross examined.
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The 1st point to dispense
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with, is whether the trial Judge, as submitted by the Appellant’s Counsel, erred in holding that:
?I am satisfied that the Plaintiff has proved his case against the Defendants beyond reasonable doubt?
As correctly submitted by the Appellant’s Counsel and as stipulated in Section 134 of the Evidence Act 2011, the standard of proof in civil cases, is on the balance of probabilities and not beyond reasonable doubt as held by the trial Judge. While the standard of proof beyond reasonable doubt placed on the Respondent by the trial Judge is an undoubted error, the error in so stating, I hold, is not prejudicial to the Appellants. This is because the burden placed on the Respondent to prove his case beyond reasonable doubt, being higher than the law requires, is a complaint that the Respondent should make and not the Appellant. The Appellant is thus not disadvantaged by this error.
The law is that it is not every error made by the trial Judge in its judgment appealed against that results in the setting aside of the Judgment and allowing the appeal but only those errors that have caused a miscarriage of justice. See Nguma v A-G Imo State
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(2014) 7 NWLR Part 1405 Page 19 1t 146 to 147 Para A-B per M.D. Muhammad JSC; Ali v State (2015) 10 NWLR Part 1466 Page 1 at 29 Para F-H per Ogunbiyi JSC; Ohakim v Agbaso (2010) 19 NWLR (Part 1226) 172 per Onnoghen JSC.
No miscarriage of justice has been caused to the Appellants in this case, I hold, by this error.
I now proceed to a determination of the issue for determination. The lower Court, in its Judgment, set out the evidence of the witnesses. It noted that the evidence of the Respondent was not cross examined upon and was therefore admitted. lt referred to inconsistencies and outright falsehood in the evidence of the defence witnesses.
It held, with regard to the defence, at Page 117-119 of the Record, as follows:
?The defence of all three defendants including the 1st defendant who was arrested on the scene was mere denial. No alternative set of facts was given especially by the 1st defendant. He however under cross examination admitted being arrested at the scene and tried to say that he was waiting for someone all contrary to his pleadings and deposition on oath. During cross examination, the 1st defendant was very evasive and
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would not answer simple questions especially questions regarding his arrest and relationship or contact with other defendants. He was always looking at his counsel perhaps hoping for a clue before attempting to answer if at all. At a point he became jittery, He certainly came across as someone who had something to hide, His contradiction of his evidence on oath is certainly material and that together with his evasiveness made his out to be a man of little truth. He certainly came across as a person of dubious character who cannot give straight answers.
The 2nd defendant was no better. He was evasive most of the time especially when asked about the relationship between him and other defendants and when asked why he did not produce the 1st defendant to the trial Court for about a year after standing surety for him. He finally said the other defendants were his brothers and not his business associates.
The 3rd defendant on his part denied that his name was Ben. He stated that his name was Collins. The deposition which he said he signed was in the name of Ben Nwatureocha. When the case was earlier called, he answered to the same name. Even though he
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said he signed the deposition, when he was asked what he wanted to do with the deposition, he said he wanted the Court to discharge the plaintiff’s claim. He did not say he was adopting the deposition. However, he was cross examined and he at first tried to show that he did not know the other defendants well by referring to them as the other defendants instead of their names as asked. He later admitted knowing the 2nd defendant owns a hotel.
He contradicted the 1st and 2nd defendants when he said he did not know where they are from. They had said they were his brothers. He later admitted they are from the same ethnic group as he is. When informed that the other defendants had said they were blood relatives, the 3rd defendant became evasive. He had said he had no relationship with them. He refused to answer the question who the Court should believe on this issue even when it was reframed and asked severally. He was also evasive when he was asked on business relationship with others. He later denied being their business associate. It was very obvious that the 3rd defendant was not telling the Court the truth.
I agree with learned counsel to the
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plaintiff that the defendants particularly the 1st and 3rd are pathological liars. The 3rd defendant could stoop so low as to deny his name which he used to swear to a deposition on oath. The defendants have not only lied to this Court but have contradicted each other on material facts. It is not the duty of the Court to pick and choose who to believe. I do not believe any of them for reasons stated above.”
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With regard to the Respondent and his witness, the trial Judge held (Page 119):
“On the whole, the Plaintiff and his witness have given clear and uncontradicted evidence. In fact the cross examination only strengthened the Plaintiffs case. Indeed, the PW1 pointed to the 1st Defendant who was in Court as the man who attempted to sell the fake oil seal to him and who was there and then arrested by the Police and Plaintiff in his car. He concluded that it was the same people who had duped the Plaintiff that attempted to dupe him as they used the same names and methods. On his part, the plaintiff was never cross-examined. His evidence is deemed admitted. There is no doubt in my mind that the 1st defendant was the person the Plaintiff met at Mando and
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who was subsequently arrested close to Peugeot junction. I also believe the Plaintiff’s evidence that it was the 2nd and 3rd Defendants that met him at Hamdala Hotel posing as Consultants. I believe the Plaintiff’s evidence that the defendants were responsible for collecting his N4,280,000 by a scam.
I am satisfied from the above that the Plaintiff has proved the case against the Defendants beyond reasonable doubt.
Judgment is accordingly entered for the Plaintiff against the defendants as per the Statement of Claim.”
The Appellant’s Counsel has contended that the evidence of PW1 was hearsay and inadmissible and was therefore wrongly admitted.
Hearsay Evidence is defined in Section 37 of the Evidence Act 2011, as follows:
Section 37
“Hearsay means a statement-
a. oral or written made otherwise than by a witness in a proceeding; or
b. contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Section 38
Hearsay evidence is not admissible except as
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provided in this Part or by or under any other provision of this or any other Act.”
In the instant case, the evidence of PW1, with respect to his interactions with the Appellants, leading to the apprehension of the 1st Appellant and the escape of the 2nd and 3rd Appellants, I hold, was direct evidence and admissible. The Respondent, in addition, gave unchallenged direct evidence of his interactions with the Appellants. Their combined evidence was rightly relied upon by the trial Judge, I hold.
The statement of the trial Judge that:
?He (PWI) concluded that it was the same people who had duped the Plaintiff that attempted to dupe him as they used the same names and methods” while admittedly hearsay evidence and thus inadmissible, does not, however, affect the evidence of the identification of the Appellants by PW1. The lower Court, from the judgment above, had sufficient evidence before it, without this evidence, to have held as she did.
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Indeed, the records show that on the date the evidence of the Respondent, who testified as PW2, was given, neither the Appellants nor their Counsel were in Court to cross examine him. No attempt
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was made subsequently to recall him for cross examination. The Appellants merely proceeded to open their defence. The law is that where a witness is unchallenged under cross-examination, the Court is not only entitled to act on or accept such evidence, but it is in fact bound to do so, provided that such evidence by its very nature is not incredible.
Thus where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Oforlete v State (2000) 12 NWLR (Pt. 681) 415 at 436, paras B-C per Achike JSC.
It was held, in the case of Gaji v Paye (2003) 8 NWLR (Pt. 823) 583 at 605, Para A-C per Edozie JSC that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. It is not proper for a Defendant not to cross-examine a Claimant’s witness on a material point and to call evidence on the matter after the Claimant had closed his case.
It was similarly held in Ebeinwe v State (2011) 7 NWLR Part 1246 Page 402 at 476 Para D per Mukhtar JSC (as he then was) that: “The position of the
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law is that evidence that is neither challenged or debunked remains good and credible evidence which should be relied upon by a trial judge, who would in turn ascribe probable value to it.”
The evidence of the Respondent is thus deemed admitted by the Appellants and the lower Court was bound to accept it. The contrary case put up by the Appellants, by the authority of Gaji v Paye Supra, can thus not stand.
The evidence of the Respondent and his witness, I find to be consistent, cogent and compelling. PW1 was not shaken under cross examination. He reiterated, under cross examination, the attempt of the Appellants to swindle him and his cooperation with the Police to arrest the Appellants. The case of the Appellants, on the other hand, as rightly held by the trial Judge, was full of contradictions and outright falsehood.
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The duties of the Courts, vis a vis trials and the hearing of appeals are well circumscribed. It is the duty of the trial judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves
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both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial judge’s finding. lt is only where the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence. See Ogundalu v Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC.
As was held in the case of Omisore v Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 275 Para E-G per Nweze JSC, issues relating to the demeanour of witnesses, which a trial Court saw and assessed, and the ascription of weight to their evidence are the exclusive prerogatives of the trial Court due to the initial advantage which the Court had of actually seeing and assessing the witnesses, which neither the Court of Appeal nor the Supreme Court can interfere with. The trial Court, Nweze JSC held, has the power to ascribe credibility
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to the evidence of witnesses who testified before it.
Indeed, an appellate Court reviewing oral evidence of a trial Court, would be entering an arena within the exclusive domain of the trial Court especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses. See Roda v FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC.
Where such Court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial Court. See Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Paro C-D per Rhodes Vivour JSC.
It is clear that the trial Judge, who saw, heard and watched the witnesses when they gave evidence, meticulously evaluated the evidence of the witnesses and ascribed probative value to the evidence. This Court must be reluctant and indeed sees no reason to differ from the trial judge’s evaluation and finding.
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The defence of the Appellants was clearly a sham. This was an evil syndicate that preyed on susceptible, innocent retirees, with evil
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knowledge of money at their disposal, in a callous attempt to defraud them.
The Appellants have accused the Respondent of withholding evidence by not tendering receipts for the sum of N400,000, the first “oil seal” bought, and for the sum of N2 Million. The evidence of the Respondent was, however clear on the manner the payments were effected, which evidence was believed by the lower Court. In any event, the failure of the Appellants to challenge him on these payments, is an admission of the payments. They can thus not be heard to be complaining of suppression of evidence, which they had tacitly admitted.
Counsel to the Appellants again contends that where a crime is alleged in a civil matter, the particulars of the crime must be specifically pleaded and the elements of the crime proved beyond reasonable doubt. He cited the case of Psychiatric Hospitals Management Board v Edosa (2001) 5 NWLR Part 707 Page 612 where it was held by Kalgo JSC as follows:
“This apart, the allegation against the respondent involved commission of a crime which raised the onus to that of proof beyond reasonable doubt on the appellant. This is a condition precedent if
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he was to succeed. As for the respondent, she needed only to offer evidence to the preponderance of probability to exculpate himself from the accusation.”
In the instant case, the Respondent, in his 60 paragraph Statement of Claim, has, I note, meticulously pleaded the particulars of the crime and proved same to the satisfaction of the lower Court and this Court.
In any event, the claim of the Respondent at the lower Court was for the refund of the sum of “N4,280,000 which the Defendants (sic) collected” from him “without consideration”, with interest on the said sum. This claim, I hold, is in the specie of “money had and received”.
It was held in the case of First Bank of Nigeria Plc v Alexander N. Ozokwere (2013) LPELR-21897(SC) per Kekere Ekun JSC as follows:
“A claim of this nature for “money had and received” is in the nature of an equitable remedy to discourage unjust enrichment. It is to prevent a defendant from holding on to money which has come into his possession, which it is against conscience that he should keep.”
In Olam (Nigeria) Limited v intercontinental Bank Limited (2009) LPELR-8275(CA) Nwodo JCA (of blessed memory),
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describing this claim, held:
“An action for money had and received is a common law action and has always been used in circumstances whenever conversion lies and money have (sic) been received on behalf of the plaintiff by the Defendant. The claim is to compel the Defendant to restore such money to its true owner…, the Defendant is obliged by the ties of natural justice and equity to refund the money. In the old English case of BROOKS WHARF & BULL WHARF LTD. V. GOODMAN BROTHERS. 1937 1 K.B, 534. Lord Wright M.R. on what sustains an action for money had and received stated:
?The obligation (to repay) is imposed by Court simply under the circumstances of the case and on what the Court decides is just and reasonable having regard to the relationship of the parties. It is a debt or obligation constituted by the act of the law apart from any consent or intention of the parties or priuity of contract”
The instant claim is thus a Common Law action and in the nature of an equitable remedy, and issues to discourage unjust enrichment and prevent a Defendant from holding on to money, which it is against conscience that he should keep. Thus
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even though, as I have held above, the allegation against the Appellant was proved beyond reasonable doubt, this standard of proof was not applicable to the instant case which is in the specie of “money had and received”, a Common Law action.
It has also been alleged by the Appellants’ Counsel that where a person is accused of a criminal offence he must be tried in a Court of law where the complaint can be ventilated in public and be sure of a fair hearing. He cited the case of Okwusidi v Ladoke Akintola University (2012) ALL FWLR Part 632 Page 1774. The Respondent’s Counsel counters that the Appellants in this suit were not facing a criminal trial but a civil suit. The trial and conviction of the Appellants is thus not a condition precedent to the success of this suit. Notwithstanding this, is evidence, he pointed out, that the 1st Appellant was undergoing a criminal trial. The prosecution and conviction of the Appellants is nevertheless not a condition precedent to the Respondent’s quest to recover the sum collected from him by the Appellants.
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The question which this contention throws up is whether the prosecution and conviction of the Appellants
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is a condition precedent to the institution of this action.
It was indeed held in the case of Okwusidi v Ladoke Akintola University Supra at 1786 Para E-G, per Fasanmi JCA, that where a person is accused of a criminal offence, he must be tried in a Court of law where the complaint of his accusers can be ventilated in public and where he would be sure of getting a fair hearing.
His Lordship, Fasanmi JCA, was however emphatic that he should not be misconstrued in standing against disciplinary proceedings where criminal allegations are involved, but that “once criminal allegations are involved, care must be taken that the provisions of Section 33 (4) of the Constitution are adhered to.”
That case is however no authority for the proposition that where criminal proceedings are brought, the same must be concluded before civil proceedings can be commenced.
In Onoh v Maduka Enterprises (Nig) Ltd (2007) 13 WRN Page 176 at 186 lines 20-25, it was held by Ogebe JCA (as he then was)as follows:
“… once a claimant has set in motion the prosecution of the felon by ensuring that the matter is charged before a Court, he has accomplished his role in
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prosecuting the matter. The outcome of the prosecution is not within his control and I cannot see the rationale for him to await the outcome of the prosecution before he commences his civil action. See Okonkwo a Obunlesi Supra”. Underlining Mine.
In the case referred to above by Ogebe JCA (as he then was) of Okonkwo v Obunseli (1998) 7 NWLR (Pt.558) 502, the dispute was whether the Respondents, as Plaintiffs in the Court below, were right in instituting a civil action against the Appellants (Defendants) while the criminal prosecution of the Appellants was still going on at the Chief Magistrates Court or whether the Respondents should have waited for the completion of the said prosecution before instituting the civil action.
The Court of Appeal (Enugu Division) in the lead judgment of Akpabio JCA held at page 572 Para A-B as follows:
“On the totality of the foregoing, I am of the firm view that this appeal has been a hopeless waste of judicial time, as the appellants have been unable to point to any section of any written law that stipulates that unless and until the Appellants have been “prosecuted to conclusion” no civil proceedings can be
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instituted against them in respect of the same subject matter.” Underlining Mine
Tobi JCA (as he then was), concurring, added at page 512:-
“…the entire policy behind Smith v. Selwyn will work injustice particularly in Nigeria where it, at times, takes so much time to apprehend an accused person. And what is more, proof of a criminal matter is quite different from proof of a civil matter and there is really no justifiable reason why the two should be so related in terms of prosecution.”
From the foregoing authorities, it is clear that there is no law that precludes the Respondent from instituting the action before the lower Court, even though there was pending a criminal prosecution against some of the Appellants.
Having dispensed with all the contentions of the Appellants, I agree, as advocated in the case of Ogundepo v Olumeson Supra, that for the Plaintiff to succeed, he must rely on the strength of his case and not on the weakness of the defence. The Respondent, I hold, did indeed successfully discharge the onus of proof placed on him. The lower Court thus properly and adequately assessed and evaluated the evidence before it in
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arriving at the decision that the Respondent has proved his case. I accordingly resolve the 1tt issue for determination against the Appellants.
The 2nd issue for determination is:
Whether the trial Judge rightly awarded the Respondent 20% interest per annum on the judgment sum of N4,280,000.00
Counsel to the Appellants submits that a party who claims interest on a sum of money has an obligation to support that claim with evidence, as the Court cannot award to a Claimant what he did not claim or prove. He cited the cases of Okafor v Ejiogu (2012) All FWLR Part 650 Page 1315; A.G. Ferrero & Co Ltd v HCNL (2011,) All FWLR Part 587 Page 647.
The contention of the Respondent’s Counsel, however is that the award of the 20% interest was in line with the case of A.G. Ferrera & Co. Ltd v HCNL Supra. He cited in addition Shell Petroleum Devt. Co Ltd v Anthony Nwabueze (2004) All FWLR Part 724 Page 117; Savannah Bank of Nigeria PLC v Opanubi (2004) 15 NWLR Part 896 Page 437; Alhaji Abubakar Musa & Sons Ltd v GM Ochemba & Brothers Ltd (2004) All FWLR Part 279 Page 1088. This Court was urged not to interfere in the Court’s award of
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interest even if it felt that it would have exercised its discretion differently. lt was not necessary, he said, for the Respondent to have adduced any evidence on the interest before it could be awarded, in appropriate cases.
The general position of the law on the matter of pre-judgment interest was stated in the case cited by both Counsel, of A.G. Ferrera & Company Ltd. V Henkel Chemicals Nigeria Ltd (2011) All FWLR Part 587 Page 647 at 657-658 Para F-A per Tabai JSC, reading the lead judgment, as follows:
“The Court below referred to a number of other authorities. On this sole issue of pre-judgment interest, learned counsel for the parties cited a number of authorities including EKWUNIFE’s case. I have read the authorities and there is no doubt that NIGERIAN GENERAL SUPERINTENDENCE CO. LTD Vs NIGERIA PORTS AUTHORITY (supra) and ADEYEMI Vs LAN& BAKER (NIG) LTD (supra) cited by the Appellant were decided on the principle that in purely commercial transactions a party who holds on to the money of another for a long time without any justification and thus deprives that other of the use of such funds for the period should be liable to pay
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compensation by way of interests. NIGERIA GENERAL SUPERINTENDENCE CO. LTD Vs. NIGERIA PORTS AUTHORITY (Supra) went a step further to decide that even where interest is not claimed in the writ, the Court can in appropriate cases, award interest in the form of consequential order.
Onnoghen JSC, in his Contributory Judgment held, at 660 Para A-D,
“The principle relevant to the issue under consideration has been laid down in a number of cases thereby becoming settled law that a claim for pre-judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplate by the agreement between the parties or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship. It follows that before a party can claim pre-judgment interest he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties or mercantile custom or principle of equity such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts
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must be pleaded, as facts not pleaded ground to no issue.” Underlining Mine.
In Stabilini Visinoni Ltd v Metalum Ltd (2008) All FWLR Part 409 Page 503 of 516 Para D-E, the Court of Appeal, per Mshelia JCA held as follows:
?I acknowledge the position of the law as stated in the case of Alfrotrin v. A-G, Federation cited supra by appellant’s counsel but the law also recognizes the right to interest of a plaintiff in a claim for the return of money arising from commercial transaction particularly where the defendant has held the money of the plaintiff for some time. See Nigerian General Superintendent Co. (NGSC) Ltd, V. Nigerian Ports Authority (1990) 1 NWLR (Pt.129) 741.
In a situation arising from commercial matters. I should think that a party holding on to the funds of another for so long without justification ought to pay him compensation for so doing. Akpata, ICA in the N G.S.C. Ltd. case (supra) put the matter of the right to interest thus:
“A judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded. though not claimed in
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the writ, it is in the nature of a consequential order.?
The Court of appeal in Adeyemi v. Lan & Baker (Nig) Ltd. (2000) 7 NWLR (Pt. 663) 33 at 48 similarly, endorsed the decision in N.G.S.C. Ltd. v. N.P.A. supra that interest can be awarded in cases of return of money.
?…In the instant case where the Defendant withheld Plaintiffs money for contract executed, the interest claimed thereon by the Plaintiff was rightly award by the trial Court.” Underlining Mine.
From the foregoing authorities, the position, it seems clear, is that though the general law in purely commercial transactions is for pre judgment interest to be pleaded together with the facts upon which they are based, where money is held by another without justification, the Court can award him compensation by the award of pre judgment interest, even where such is not claimed.
?
In the instant case, the money sought by the Respondent was collected by the Appellants by fraudulent means. The justice of the case demands that they be made to pay interest on the said sum for their retention of this money. Had the money been borrowed by them from the Bank, they certainly
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would be paying a higher rate of interest than that awarded by the lower Court.
It has not been shown that the lower Court exercised its discretion wrongly. I thus see no reason to interfere with this award.
The 2nd issue for determination is also resolved against the Appellants. It is a settled principle of law that where a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v Onuche (2009) 3 NWLR Part 7729 Page 659 at 674 Para F-G per I.T. Muhammad JSC.
This appeal is entirely without merit. It fails and is hereby dismissed. The judgment of the lower Court is accordingly affirmed. The Appellants shall pay costs of N50,000.00 to the Respondent.
Other Citations: (2016)LCN/8656(CA)
