Sunday D. Bayam V. Job Agana (2010)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The instant appeal is a fall-out of the judgment of the Taraba State High Court of Justice sitting at Jalingo Judicial Division, delivered by His Lordship Y.A Bashir, J. on 26/02/06 in Suit No. TRSJ/10/2003, between the parties herein.
The genesis of this appeal is traceable to 28/02/03. That was the date on which the Respondent caused a writ of summons, bearing Suit No. TRSJ/10/2003, to be issued out against the Appellant for malicious prosecution.
By virtue of the 26 paragraphed amended statement thereof, dated 21/7/03, the Respondent claimed against the Appellant the following reliefs:
“26.
(a) The sum of N3,000,000.00 being general damages for malicious prosecution.
(b) The sum of N3,000,000.00 being aggravated and/or exemplary damages.
(c) The cost of filing and prosecution (sic) of this suit.
The Appellant, in the Respondent’s statement thereof, dated 22/7/03, denied the said claim, and accordingly urged the lower court to dismiss same.
Pleadings were filed and exchanged by the respective parties. The case accordingly proceeded to trial. The Respondent testified on 27/11/03 as the sale witness for the plaintiff. The Appellant and one other person, Sunday B. Bayam, testified for the Defence on 28/11/03 & 11/12/03, as DW1 & DW11, respectively. Both counsel addressed the lower court on 18/12/03 and 30/01/04, respectively. Resultantly, the case was adjourned to 26/02/04 for delivery of judgment.
Not unexpectedly, the judgment was indeed delivered on that date to the effect, inter alia, thus:
In the result the plaintiff in this case succeed (sic) in his claim for malicious prosecution.
Now the quantum of damages. The Plaintiff asked for N3,000,000.00 general damages for malicious prosecution. General damages are those which the law implies or presume to have accrued from the wrong complained. It is usually given when the court cannot point out any measure by which they are to be assessed except on the opinion that the judgment of a reasonable man, because unlike special damages it is generally incapable of substantially exact calculations.
The plaintiff has averred in his amended statement of claim that he has suffered some mental and psychological inconveniences and financial loss, in his testimony, he stated the prosecution has caused him some hardship and loss of reputation. This aspect of the testimony remain uncontradicted in any material sense. This therefore entitled the plaintiff to damages. But the sum of N3,000,000.00 is excessively high so in the circumstances the defendant sholl be entitled to the sum of N200,000.00 as general damages for malicious prosecution. Aggravated damages by its nature is compensatory since the plaintiff is awarded in general damages. To make any other award in favour of the plaintiff will amount to double compensation, same is hereby refused.
Judgment is therefore hereby entered in favour of the plaintiff against the defendant for the sum of N2000,000.00 being general damages for malicious prosecution. See pages 6 & 7 of the Record.
On 25/5/04, the Appellant filed his notice and grounds of appeal in the lower court challenging the said decision. Both parties, vide the counsel thereof filed their respective briefs of argument. The Appellant’s brief was filed on 24/5/05, while that of the Respondent was filed on 21/6/05. In the brief thereof, the Appellant has raised the following single issue for determination:
“Whether or not from the evidence before the trial court the appellant could be said to have maliciously prosecuted the respondent”.
On the part thereof, the Respondent has likewise formulated a single issue for determination in the brief thereof, to wit:
“(1) Whether the holding by the trial Court that the Tort of malicious prosecution was proved is justified in low”.
The issues, raised in the learned counsel’s respective briefs are not in any way mutually exclusive. The appeal shall thus be determined on the issue raised by the Appellant in the brief thereof.
The submission of the Appellant’s learned counsel, I. M. Nurudeen Esq in the brief thereof is to the effect, inter alia, that the trial court erred in law when it held that the Appellant was liable for malicious prosecution. The cases of EJIKEME VS. NWOSU (2002) 3 NWLR (Pt.754) 36; BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (Pt. 107) 18 at 26; MAMAN VS. DAMBE (2002) FWLR (Pt. 86) 428 at 452; OJO VS. LASISI (2003) FWLR (pt.156) 886 at 896, were cited and relied upon by the learned counsel for the 4 ingredients or elements required in proving malicious prosecution.
It is submitted that the mere lodging a complaint with the police is not enough. That, the plaintiff must lead cogent and credible evidence to show not merely that the defendant lodged a criminal complaint with the police, but that the defendant actively and purposefully instigated, aided and guided the persecution of the plaintiff. Reference was made to the PW1’s evidence, which was meant to prove paragraphs 16 & 21 of the statement of claim.
That, the defendant has at pages 26 & 37 of the Record effectively countered and answered the allegation of material facts, contained in the amended statement of claim, in paragraph 2 (g) of the statement of defence. Reference was also made to the evidence of DW2, as the police officer who recorded the statement of the parties, at the police station on 18/3/2000. It was argued that the evidence adduced by the Respondent before the lower court was sufficiently cogent to prove that the Appellant maliciously prosecuted the Respondent.
Section 135 of the Evidence Act CAP 22 was cited, to the effect that “he who asserts must prove”. It was argued by the learned counsel, that the Respondent had failed to lead evidence before the lower court to show that it was the Appellant who put the motion or overtly instigated the prosecution of the Respondent after (he) had lodged the complaint with the police. That the evidence of DW1 & DW2 effectively controverted the Respondent’s allegation, that the Appellant took a police man in a car to the Respondent’s house and a supervised his arrest.
It was further argued, that there is no evidence on the record of the trial court to suggest that the Appellant by any means whatsoever instigated, guided or aided the police to prosecute the Respondent. That, the record suggests that the Appellant did nothing more than to report the Respondent to the police. And that the Respondent admitted under cross examination, at page 35 of the Record, that the police and not the Appellant that decided to prosecute him in court. That, it is also on record that the Appellant opted for an amicable settlement of their differences.
Thus, it was contended, that with the foregoing pieces of evidence, the Respondent cannot rightly be held to have initiated the criminal proceedings in the light of the laid down legal principles governing the tort of malicious prosecution. That, the police acted within their powers, under Section 117 of the Criminal Procedure Code, when they decided to arraign and prosecute the Respondent in the Chief Magistrate Court, Jalingo.
Citing the case of BALOGUN VS. AMUBIKAHUN (supra), and the evidence of the Appellant at page 38 of the Record, it was maintained that the Appellant had a good and reasonable cause to lodge the complaint against the Respondent’s conduct to the police.
It was contended, that a proper consideration of the totality of the evidence on record of the trial court, will negate the learned trial judge’s conclusion at page 64 of the record. Thus, the Appellant cannot be held responsible for the action of the police. See OWOMERO VS. FLOUR MILLS (1995) 9 NWLR (Pt. 12) 622 at 630.
That from the Record, the evidence of malice or ill-motive exhibited by the Appellant was not disclosed against the Respondent in any manner whatsoever. That the fact that exhibit A shows that the Respondent was discharged is riot enough to make the Appellant liable for the tort of malicious prosecution, since the Respondent has failed to prove the other 3 elements as required by law. The court has been urged to accordingly resolve the sole issue in four of the Appellant by allowing the appeal.
On his own part, the Respondent submitted on the sole issue that the learned trial Judge was justified in law when, he found and held at page 65 of the record, inter alia, that “(6) That the Defendant was actuated by malice and that there was no reasonable or probable cause for the defendant’s action.” That, the above findings of the learned trial Judge flow from the evidence on record and justified in law.
It was contended, that the Appellant’s contention that it was the police that prosecuted the Respondent is rather misleading. Reference was made to paragraphs 3,4,16 & 21 of the mended statement of claim, to the effect that the Appellant was instrumental to setting the law in motion for the Respondent’s prosecution at the Chief Magistrate Court, which terminated in his favour. See also paragraphs 16, 17, 18, 19, 20 & 21 of the amended statement of claim.
Reference was also made to paragraph 4 of the statement of defence, to the effect that the Appellant woefully failed to join issues with the Respondent in respect of the positive and distinctive allegations in paragraphs 16, 17, 18, 19, 21 & 21 of the said amended statement of claim, The Appellant is deemed to have admitted these averments and the Respondent bears no burden to prove them. See HONIKA SAWMILL VS HOFF (1994) 2 SCNJ 86 at 104; OOIBA VS. MUEMUE (1999) 6 SCNJ 245 at 253.
It was submitted that the Appellant apart from lodging the complaint at the Jalingo Police Divisional Station on 08/3/03, strenuously pursued it. He conveyed the police officer in his car to effect arrest of the Respondent and took him to the police station – the Appellant drove the car himself. He also took the IPO to the locus criminals. He did not only testify as DW1, but also supplied the names of his witnesses one of whom the PW2 was his blood brother.
That the prosecution was at the discretion of the Appellant, and not that of the police. No reasonable cause allegedly existed for the Appellant to lodge the complaint against the Respondent. See BALOGUN VS. AMUBIKAHUN (supra) per Belgore, JSC (as he then was); HERNIMAN VS. SMITH (1938) AC 305.
The Appellant failed to join issues with Respondent on material averments in 26 paragraph of the amended statement of claim, thus, is deemed to have admitted same. See HONIKA SAWMILL VS. HOFF (1994) 2 SCNJ at 100. That, the Respondent did prove the absence of reasonable and probable cause by facts pleaded in paragraphs 5 – 21 of the amended statement of claim – See HONIKA SAWMILL VS. HOFF (supra); EGBUNIKE VS. A.C.B (1995) 2 SCNJ 58 at 12; IVIENAGBOR VS. BAZUAYE(1999) 6 SCNJ 235 at 240 paragraph 25.
Citing and relying on BALOGUN VS. AMUBIKAHUN (supra), it was submitted that the holding by the trial court that the Appellant was actuated by malice, and that there was no reasonable or probable cause for his action, is justified and cannot be interfered with. The trial court was said to have properly reviewed and evaluated the evidence and correctly entered judgment against the Appellant, which decision is solid. Therefore, this court cannot disturb the said findings of facts. See BAMIDELE VS. DAUDA (2001) FWLR (Pt. 36) 908 at 918 – 919 paragraph D.
Finally, the court has been urged not to interfere with the findings of the learned trial Judge, which were allegedly arrived at as a result of proper evaluation of evidence. That, the appeal being unmeritorious should be dismissed in its entirety with substantial costs against the Appellant, and affirm the judgment of the lower court.
It is instructive, that having critically evaluated the evidence adduced by both parties, the learned trial judge, Bashir, J; made the following findings at page 64 of the Record.
There is sufficient evidence before me to suggest that the plaintiff and the defendant had an excellent relationship at least while the defendant was constructing rouse that relationship ostensibly become bad to the extent of producing the incident that culminated to the police and data on to the court.
It is also inferable from the overall circumstance of the case that the action of the defendant was actuated by malice. The evidence of the defendant that the plaintiff intimidated him was fabricated purely to advance the malice that originally actuated the case since it is generally admitted and indeed believed by the court that the stoppage of the digging of the soak away took place in the absence of the defendant. …
His motive therefore was to punish and embarrass the plaintiff…
By the above findings therefore, I am satisfied that all the legal requirements needed to proceed in an action for malicious prosecution have been effectively established. It is a well settled principle of law, that in an action for malicious prosecution, the complainant (plaintiff) shoulders the burden of not only pleading, but also establishing vide a cogent and unassailable evidence, the following:-
(a) That, he was prosecuted by the defendant. It must be proved that the defendant set in motion the law adding to filing a criminal in a court of law against the complainant;
(b) That in consequence of the prosecution thereof, the complainant was discharged and acquitted of the allegation against him;
(c) That, the prosecution of the complainant by the defendant was completely devoid of any reasonable and probable cause; and
(d) That, the prosecution was as a result of malice by the defendant against the complainant. See BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (Pt. 107) 18 at 26 per Belgore, JSC.
Thus, by virtue of the aforesaid principle, for the Respondent to succeed in his action for malicious prosecution in the lower court, he must establish by a cogent and unassailable, all the aforementioned four elements against the Appellant.
The term ‘prosecute’ denotes to set in motion the law, whereby a complaint or an appeal is made to some person cloaked with judicial authority regarding the matter in question. Thus, where a complaint or report is made by a complainant to the police and strenuously pursues it through mischievous false hood, thereby making the police to arrest the person incriminated, proffers a charge against him, and arraigns him to court for prosecution, the complainant is said to have set in motion the law for a person clothed with authority to arrest and charge the incriminated person. See BALOGUN VS. AMUBIKAHUN (supra) at 22 paragraphs A-B.
In the instant case, it had been proved: (i) that the appellant and the Respondent were neighbours: (ii) that there was a dispute between them over a portion of land situated and lying between their respective houses; (iii) that the Appellant employed some labourers to dig a soak-away for him on the portion of the land, but the Respondent stopped them from digging, on the ground that it is his access road; (iv) that the Respondent reported the issue to the Urban Planning Authority, Jalingo whereby a stop notice was served on the labourers to stop the work; (v) that the Appellant was unhappy with the stoppage of the work, and thus, reported the Respondent to the police on the allegation of intimidation and defamation of character; (vi) That the Respondent was thereby arrested, taken in the Appellant’s motor vehicle to the police station and later charged to Chief Magistrate’s Court, but was eventually discharged and acquitted. (vii) That the Appellant was actuated by malice, and that there was no reasonable or probable cause for the appellant’s action. At page 65 of the Record, the learned trial Judge came to the conclusion that-
“By the above findings therefore I am satisfied that all the legal requirements needed to succeed in an action for malicious prosecution have been effectively established”.
It is not in doubt, that both parties are ad idem that the Respondent was indeed charged and prosecuted before the Chief Magistrate Court, Jalingo for the offences of criminal intimidation and defamation of character, contrary to Sections 392 and 396 of the penal code. It is also not in dispute, that at the conclusion of the said trial, the Respondent was discharged and acquitted of the two count charge by the chief magistrate court.
The amended statement of claim covers a total of 26 paragraphs. However, the Appellant’s statement of defence spans only 4 paragraphs. Paragraph 1 of the statement of defence admits paragraphs 1 & 2 of the statement of claim, but denies paragraphs 3, 4, 5, 6, 8 & 9 thereof. Thus, no reference was made to the remaining paragraphs 10 – 26 of the amended statement of claim in the statement of defence.
Ironically, the most crucial aspects of the Respondent’s grouse are contained in paragraphs 13 – 26 of the amended statement of claim thereof, none of which was controverted by the Appellants in the apparently ill-drafted statement of defence, contained at pages 25 & 26 of the Record. Thus, in law, the implication is that the uncontroverted paragraphs 10 – 26 of the amended statement of claim of the Respondent ought to be deemed as having been admitted. And I so hold. See HONIKA SAWMILL VS. HOFF (1994) 2 SCNJ 86 at 98 paragraphs 10 -15 where the apex held, inter alia, thus:
“For failing to join issue or adequately join issue with the Respondent on his paragraphs 9 and 10 of his amended statement of claim in its statement of Defence, the Appellant is deemed to have admitted the averments”.
And it is a trite principle of the law of evidence, that where facts are admitted, no evidence is admissible in proof thereof. See HONIKA SAWMILL VS. HOFF (supra) at 98 paragraph 2; IBADAN LGPC LTD VS. AKINADE (2005) 3 NWLR (Pt. 911) 9.
The Respondent testified as PWI in the lower court that he was arraigned, and prosecuted before the Chief Magistrate Court, Jalingo regarding the allegations of criminal intimidation and defamation of character contrary to sections 392 & 396 of the penal code (supra), at the end of which he was discharged and acquitted. Exhibit I is the record of proceedings of the trial Chief Magistrate Court, Jalingo regarding the criminal charge No.CMCJ/GC/2002, which was tendered and admitted through the bar without any objection by Appellant’s counsel. The Appellant and one Shacnjoku, a police officer (DW1 & DW3) admitted in their evidence that the Respondent was indeed charged and prosecuted before the said Chief Magistrate Court. Thus, the question of whether the Respondent was charged and prosecuted before the said Chief Magistrate Court is no longer in doubt. It is evident that the police arrested the Respondent, took, him to the police station at jalingo; where he was released in police bail later in the day. The police having discovered that the dispute was a civil matter, later advised the parties to go and settle.
The Appellant had the opportunity to explore the settlement option afforded by the police, but which he never utilized. He knew, or ought to have known, that the police had no legal power to confer on him the ownership of the portion of the land in dispute. The Appellant personally drove the police in his car to the Respondent’s house. The Respondent was thereby arrested and conveyed in the Appellant’s car to the police station. The Respondent was released on police bail.
It is an established principle, that where a person reports a criminal case to the police, makes a statement to the police, and perhaps conveys the police investigation officer to the alleged scene of crime, produces such witnesses as he thinks are material to support his false allegation against the suspect, he is assumed to be the real prosecutor, and not the police. See BALOGUN VS AMUBIKAHUN (supra) at 206, per Nnamani, JSC.
It was in evidence, that the Respondent had told the court that the Respondent caused him to be locked up and charged to court because he (the Appellant) was not happy that the Respondent made the Urban Planning Authority to stop from him from digging the road. Ironically, the appellant, in paragraph 4 (c) of the Statement of Defence thereof, fabricated an allegation that the Respondent covered the pit dug by the Appellant and resolved to shed blood and deal ruthlessly with the Appellant, whom he called ‘a wicked man’. The Appellant accordingly testified (as DW1), inter alia that:-
“He (Respondent) threatened to spill blood if I continue refusing his right of passage. He called me a wicked person. On Sunday he buried the soak away dug by my people. See page 38 paragraph 5 of the Record”.
Contrary to the Appellant’s averments and evidence alluded to above, it is in evidence, as rightly found by the lower court, that no reasonable or probable cause existed for the Appellant to have lodged the complaint to the police against the Respondent. See page 163 of the Record of Proceedings of the lower court whereas the learned trial judge held, inter alia, as follows:
I have no hesitation in holding that the assertion by the defendant that the complaint against the plaintiff because the plaintiff called him a wicked man and threatened to shed blood as being and unsubstantiated and totally false in the result I find and hold that the defendant had no reasonable cause to prosecute the plaintiff.
The trite and general principle is that a reasonable and probable cause entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that he has committed a criminal offence. See BALOGUN VS. AMUBIKAHUN (supra), wherein the Supreme Court held, per Belgore, JSC thus:
The belief in criminal culpability of the plaintiff must be honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing. See also HERNIMAN VS. SMITH (1938) AC 305.
In some very exceptional cases, however, the absence of reasonable grounds capable of leading to a conviction may result in vitiating the proceedings, for malicious prosecution. See BRADSHOWVS. WATERLOW & SONSLTD (1915) 3 KB 527 at 534; DAWSON VS. VANSSANDAU (1863) 11 WR 516; BALOGUN VS. AMUBIKAHUN (supra) at 27 paragraphs F- G, respectively.
The term ‘malice’ denotes the intent, without justification or excuse, to commit a wrongful or an illegal act. It also means reckless disregard of the law or .of a person’s legal rights; ill-will; wickedness of heart. See BLACK LAW DICTIONARY, 8th Edition, 2004, at 976 quoting from ROLLIN M. PERKINS & RONALD N. BOYCE: CRIMINAL LAW, 860 (3rd Edition, 1982) thus:
“Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The latin ‘imilitia’ means badness, physical or moral-wickedness in disposition or in conduct not specifically or exclusively ill-will or malevolence; hence the malice of English Law, including all forms of evil purpose, design, intent, or motive”.
“Malice in the legal sense imports (1) the absence of all elements of justification excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton or willful doing of an act with awareness of a plain and strong likelihood that such harm may result”
Thus, by virtue of the above definitions, it would be apt to say that malicious prosecution denotes the institution for a criminal or civil proceeding for an improper purpose and without probable or just cause.As a matter of principle, the law places a burden on the plaintiff to prove the following four elements:
(a) The initiation or continuation of a lawsuit;
(b) Lack of reasonable or probable cause;
(c) Malice; and
(d) Favourable termination of the lawsuit.
The principle has been well settled that the determining factor in proving the absence of malice is to establish an honest belief, which must not merely be a belief by the prosecutor of the guilt of the accused person. The prosecutor must have a belief that he would be able to adduce sufficient evidence to justify the court in convicting the accused person. See BALOGUN VS. AMUBIKAHUN (supra) at 34 paragraphs C- D.
In the instant case, it was submitted by the Appellant’s learned counsel, in the brief thereof, that the lower court erred in law when it held that the Appellant was liable for malicious prosecution, on the ground that the evidence adduced by the Respondent was not sufficiently cogent to prove that the Appellant, maliciously prosecuted the Respondent. It was contended that-
“The record of the lower court suggests that the appellant did nothing mare than to report the respondent’s conduct to the police. The Respondent admitted under cross examination an page 35 of the record of the lower court that the police decided to prosecute him in court but not the appellant. There is also evidence on the record of the lower court to suggest that the appellant after lodging his complaint the respondent to the police, he opted for amicable settlement of their differences”.
Contrarywise, the Respondent’s learned counsel in the brief thereof countered thus:
3.04: My Lords, it is also submitted that the appellant’s contention that it was the police that prosecution that prosecuted the Respondent is rather misleading. The Respondent pleaded in paragraphs 3, 4, 16 and 21 of his amended statement of claim that the Appellant was actively instrumental in setting the law in motion for his prosecution at the Chief Magistrate Court which terminated in his favour.
We respectfully urge your Lordships to hold that in so for as paragraphs 16, 17, 18 and 21 of the statement of claim were admitted by the appellant he was the one that set in motion the law by appealing to the police to arrest, charge and/or prosecute the Respondent.
In the present case, it is been established beyond any dispute that: (i) the Appellant was the person that made a report on 18/3/2002 to the police at Jalingo police station against the Respondent for criminal intimidation and defamation of character; (ii) the Appellant, on the strength of that report or complaint, was accompanied by a police officer to the house of the Respondent; (iii) the Respondent was conveyed in the Appellant’s car, driven by the Appellant himself to the police station, (iv) the Respondent was interrogated and thereafter released on police bail; (v) the Appellant and Respondent were both advised by the police to go home and settle the matter- which the police believed to be a civil, rather than a criminal, matter; (vi) the Appellant nonetheless failed or refused to utilize the opportunity for settlement afforded them by the police; (vii) the Taraba State Urban Planning Authority was responsible for the stoppage of the digging of the soak away in the disputed land by the appellant; (viii) the Appellant’s motive in reporting the Respondent to the police was to punish and embrass the Respondent.
In that regard, the findings of the lower court are to the effect that:-
It is also inferable from the overall circumstance of the ease that the action of the defendant was actuated by malice. The evidence of the defendant that the plaintiff intimidated him was fabricated purely to advance the malice that originally actuated the ease since it is generally admitted and indeed believed by this court that the stoppage of the digging of the soak away took place in the absence of the defendant.
His motive was therefore to punish and embrass the plaintiff.
I have no iota in my mind that the above findings of the lower court are unassailable and aptly predicated upon the evidence adduced by both parties at the trial of the case. It is a trite and well settled doctrine of law, that a person who reports a case at the police station, makes a statement to the police, takes the police to the scene of crime, conveys both the police and the suspect to the police station for interrogation, and thereafter produces such witnesses to support his false allegation, is strictly liable for the prosecution of the suspect. See BALOGUN VS. AMUBIKAHUN (supra) at 206 per Nnamani, JSC (of blessed memory).
In view of the highlight, I have no difficulty whatsoever in appreciating the obvious fact that the instant case does not warrant, or call upon, the court to tinker (interfere) with the decision of the lower court.
The Court of Appeal, and indeed the apex court, had in a plethora of authorities made it abundantly clear that an appellate court, of whatever judicial hierarchical status, lacks jurisdictional competence to tinker (interfere) with the findings of fact of a trial court, unless in very special or exceptional circumstances. And those special or exceptional circumstances in which an appellate court may have jurisdictional competence to interfere with the decision of a trial or lower court could be enumerated thus:
(1) wherethe findings of the lower court have been established to be perverse:
(2) Where the findings are not supported by a credible evidence;
(3) Where the findings have been arrived at as result of improper exercise of judicial discretion.
(4) Where the trial court has failed to make a proper use of the opportunity of seeing and hearing the witnesses at the trial;
(5) Where it is shown that the trial court had drawn wrong conclusion from accepted, credible evidence of the trial;
(6) Where the trial court had taken an erroneous opinion of the evidence adduced before it at the trial; or
(7) Where the findings have been reached as a result of wrong application of some basic principles of either substantive law or procedure.
Thus, the law is well settled, that an appellate court has no power to interfere with the findings of a trial or lower court unless where it’s shown on the record that those findings are not justified by the evidence so far adduced at the trial of the case, and that the error in arriving, at those findings had led to a miscarriage of justice. LOKOYI VS. OLOJO (1983) 8 SC 61 at 68; IBRAHIM VS. SHAGARI (1983) 2 SCNLR 176; OJOMU VS. AJAO (1983) 9 SC 22 at 53; ONOBRUCHERE & ANOR VS. ESEGINE & ANOR (1986) 1 NWLR (Pt. 19) 799 at 804; BAMIDELE VS. DAUDA (2001) FWLR(Pt. 36) 908 at 918 – 919 paragraphs H – D, respectively.
Most undoubtedly, the Appellant has woefully failed to convince me that the totality of the findings of the lower court cannot be justified by the evidence that had so far been adduced at the trial by the parties, or that the error, if any at all, in coming to those findings had resulted in a miscarriage of justice thereto. Hence, in the light of the aforementioned postulations, I have unhesitatingly come to the inevitable conclusion, that the instant appeal is grossly incompetent, and same is hereby dismissed by me. Resultantly, the judgment of the Taraba State High Court, dated 26/02/2004, is hereby affirmed.
Both parties to bear their respective costs of litigation.
Other Citations: (2010)LCN/3535(CA)
