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3PLR/1997/33  (CA)



2 NWLR (Pt. 435) page 54








Tim Yiga – for the Appeallants

G.Ofodile Okafor – for the Respondents



DAMAGES: Award of damages by trial court

PRACTICE AND PROCEDURE –  EVIDENCE: Contradiction in evidence of plaintiff’s witnesses in proof of an issue: Effect thereof





The respondent and appellants herein were respectively plaintiff and defendants in the court below and are hereinafter referred to by the latter nomenclature. In the court below, viz Katsina-Ala High Court of the Benue State High Court, in suit No. KHC/30/93, the plaintiff sued the four defendants for, inter alia, damages for defamation and interference with his business. Pleadings were duly filed and exchanged between the parties. As formulated in paragraph 21 of the statement of claim,. the details of the reliefs sought against the defendants are:

“21.   Whereof; plaintiff is aggrieved by the unlawful acts of the defendants and claims against them jointly and severally as follows:

(i)      A declaration that the plaintiff as a law abiding citizen of Nigeria is entitled to stay anywhere in Nigeria and pursue his legitimate business without molestation and threat to his life and property from the defendants.

(ii)     N50,000.00 general damages for defamation.

(iii)    N50,000.00 general and special damages for loss of profit which he would have derived from the sale of his goods since 12/4/93.

(iv)    An order of permanent injunction restraining the defendants, their agents and servants from howsoever interfering with the plaintiff’s business premises/shop Number F10 at Zaki-Biam.

(v)     An order of permanent injunction restraining the defendants from defaming or continuing with the defamation of the plaintiff”.

At the trial of the case, the plaintiff called three witnesses including himself while the defendants called a total of seven witnesses of whom were three of the four defendants. From the pleadings of the parties and evidence led in support thereof, the facts of the case may be summarised as hereunder.

Both parties hall from ifiteani village in Agulu town, Aniocha Local Government area of Anambra State. They all reside and carry on various businesses in Zaki-Biam in Benue State. The genesis of the dispute between them was the death in January 1993 of their Kinsman, one Izuchukwu Atuegbu a prominent trader in Zaki-Biam to whom the plaintiff was an apprentice trader from 1979 to 1983 before he (plaintiff) set up his own business of trading in a store or shop at No. F10, Zaki-Biam market in February 1984. Following the death of the said Izuchukwu a member of the plaintiff’s extended family the plaintiff and his parents were suspected to be responsible for his death.

It is the plaintiff’s case that Izuchukwu Atuegbu died in a hospital for a cause not known to him and for which he was not responsible. However, during the annual conference of the community on Ifiteani day, that is, on 1/4/93 the allegation about the involvement of the plaintiff and his parents with the death of Izuchukwu Atugbu came up for deliberation before a body of Ifiteani village meeting. Both the plaintiff (P.W.1) and all the four defendants were present at the meeting which took place at Ifiteani village, Agulu town. At the end of the deliberation, the plaintiff and his parents were adjudged to be responsible for the killing of the plaintiff’s former master Izuchukwu Atuegbu and were ostracised until they cleansed themselves. Thereafter, the plaintiff returned to Zaki-Biam on 10/4/93. Two days later, that is, on 12/4/93 the defendants who are the executives of the branch of the Ifiteani village meeting in Zaki-Biam invaded his shop at No F10 Zaki-Biam main market and in the presence of his apprentice boy by name Kaleb Enene (P.W.3) they, the defendants, particularly the 1st defendant (D.W3) locked up plaintiff’s shop alleging that he killed his former master Izuchukwu Atuegbu and ordered him out of the town. The defendants escorted him to the motor park, hurled him into a car and threatened to kill him should he be seen again in Zaki-Biam. Later the defendants addressed a letter to the plaintiff’s elder brother Samuel Medolu (P.W.2) resident at Gbeji in Taraba State. In the letter (Exh.A) dated 18/4/93 and signed by the 1st and 2nd defendants (D.W.3 and 2) Chairman and Secretary respectively of the Ifiteani village meeting Zaki-Biam Branch of which the plaintiff is not a member, the P.W.2 was informed that “the above mentioned body have decided that your brother Godwin’s store will remain closed with immediate effect since the implications of his abominationary act is still on motion until the above mentioned body comes to an end with the issue ………….” On receipt of the letter (Exh. A) the plaintiff’s elder brother, P.W.2 travelled to Zaki-Biam to see the defendants. It was then that the 1st defendant (D.W.3) confirmed that they were the people who locked up the plaintiff’s shop because he the plaintiff killed in his own interest. The P.W.2 did not respond rather he went away taking along with him the plaintiff’s apprentice Kaleb Enene (P.W.3).

The plaintiff subsequently sued the defendants and on 13/5/93 when he accompanied a bailiff as a pointer to effect service of court process on the defendants at the Zaki-Biam main-market, the defendants and others attacked him and were assaulting him until rescued by a policeman passing by. As a result of the incident, nine persons including the four defendants were arrested and are being prosecuted in the Magistrate’s Court Zankara. The plaintiff’s shop has remained locked up from 12/4/93 when the defendants locked it to 8/11/93 when it was opened on the order of the court. The plaintiff’s shop is a large one. He sells assorted goods like pomade, jewelries, cosmetics, high quality shoes etc. It is valued at N800,000. On market days, the plaintiff realises from sale of goods between N3,000 and N5,000 and on non-market days he realises between N2,500 and N3,000 each day. As a result of the defendants action, the plaintiff has suffered substantial losses in his business. Since the publication of the defamatory words against him, by the defendants, the plaintiff has been shunned by everybody alike and has been brought to ridicule, and contempt. It is on the foregoing premises that the plaintiff claimed the reliefs set out above.

On their part, the defendants denied the plaintiff’s claim. They denied the events of 12/4/93 as narrated by the plaintiff. According to them they were not in Zaki-Biam on that date – which was Easter Monday when, in their home town Ifiteani, the villagers looked into the allegation that the plaintiff killed his master. Both the plaintiff and the defendants were in Ifiteani on that day and not on 1/4/93 as stated by the plaintiff. The defendants asserted that the letter Exh. A was not defamatory; that the plaintiff was a member of their branch of the Ifiteani village meeting Zaki-Biam; that Exh A was written in good faith and in the spirit of the Constitution of their meeting Exh D to protect and secure the goods the plaintiff against destruction by traders who it was alleged had scheduled to perform the burial ceremony of Late Izuchukwu Atuegbu during the period and might destroy the plaintiff’s goods on the occasion. Despite Exh.D, the plaintiff still kept his shop open was carrying on his business as is evidenced by a receipt Exh E dated 24/7/93 for article purchased from the shop by Mfaiga Ajenyi (DW4) and also picture Exhs C1 and C2 of the shop taken by Christian Ifeanyi Onyekwe (P.W.6) The defendants denied taking part in beating up the plaintiff on 13/5/93. They asserted that the value of the plaintiff’s goods in store F10 is N20,000 and not N800,000 and that the proceeds of daily sales as stated by the plaintiff were exaggerated.

Upon the foregoing facts, the learned trial Judge, Eko J, entered judgment for the plaintiff in terms of the declaratory and injunctive reliefs sought. He made monetary awards in his favour for N25,000 for loss of profit arising from locking up of his shop and N7,000 as damages for defamations making a total N32,000.00.

Aggrieved by that decision, the defendants have appealed against it to this court on a notice of appeal containing five grounds of appeal. Arising therefrom, they have identified the following five issues for determination:

(1)     Whether the learned Judge properly evaluated the evidence of the witnesses and the entire circumstances of the case before coming to the conclusion that the appellants were at Zaki-Bian and not Ifiteani Agulu on 12/93.

(2)     If the answer to the issue is in favour of the fact that the appellants were at Ifieani Agulu in Anambra State and not Zaki-Biam in Benue State on the 12/4/93. What then is the effect of the respondent’s alleged incarceration from Zaki-Biam to Katsina-Ala where he claimed to have sojourned for about 7 months.

(3)     Whether there was proof by either direct or circumstantial evidence than the respondent was entitled to the award of the N25,000 (Twenty-five thousand naira) general damages?

(4)      the answer to issue 3 above is in the affirmative, what was the principle applied by the learned trial judge in arriving at such a figure?

(5)     Whether Exhibit A (a letter written by the 1st and 2nd appellants in their official capacity as officers of Ifiteani village meeting Zaki-Biam branch and published to P.W.2) read with D. W.2″s explanation of the term “abominationary act” is defamatory of the respondent?”

The plaintiff identified the following three issues for determination:

  1. Whether or not defamation is established before the trial court.
  2. Whether the award of N25,000.00 general damages is proper in the circumstance of the case.
  3. Whether the learned trial judge properly evaluated the evidence before coming to the conclusion that the defendants locked up the plaintiff s shop on the 12/4/93.”

I find the issues formulated by the plaintiff more precise and germane to the grounds of appeal and as such will adopt them in the consideration of this appeal while relating them to the relevant arguments canvassed by the defendants.

The 1st issue for determination in the plaintiff’s brief is whether or not defamation was established before the court. This relates to the defendant’s 5th issue for determination. The plaintiff s claim for damages for determination is grounded on paragraphs 11.12 and 13. of the statement of claim which read as follows:

  1. Consequent upon the development in paragraph 10 above, the 1st and 2nd defendants wrote to Samuel Medolu (the plaintiff”s senior brother) earlier mentioned in paragraph 10 informing him of their decision to lock-up plaintiffs shop indefinitely “for the plaintiff s abominationary act” of killing Izuchukwu Atuegbu and also warning Samuel not to interfere in their unlawful acts. The said letter dated 18th April 1993 and signed by 1st and 2nd defendants is hereby pleaded and shall be relied upon at the hearing of this case.
  2. That the defendant on the 12/4/93 while informing the plaintiff why they (defendants) were treating him that way uttered and published the following words to the plaintiff in the presence of many people who were attracted to the scene including one Celeb Enene:

“We are locking up your shop and you will leave Zaki-Biam Town because of your abominationary act of killing IZUCHUKWU ATUEGBU your formal (sic) master.” A Samuel Medolu having the same defamatory meaning”

The plaintiff s elder brother Samuel Medulu (PW.2) testified and tendered the letter dated 18/4/93 as Exh. A It reads as follows:

Ifiteani Village Meeting

Z/Biam Branch

18th April 1993


Letter of Information

This is to inform you that the above mentioned may have decided that your brother, Godwin’s store will remain closed with immediate effect, since the implications of his abomitionary act is still on motion until the above mentioned body come to an and with the issue.

So you are advised to reason-up to avoid commuting yourself.

Thanks for co-operation.

N.B. For security purposes your brother’s servants are free to be sleeping in the store as usual.

Signed by Signed by

Dan-Ezike S.E. Okogu

Chairman 18/4/93 Secretary 18./4/93”

The P.W.3 also testified as follows:

“On 12/4/93 the defendants came to our shop and ordered plaintiff to come out of his shed and that they were locking up the shed. he came out as he was ordered. I was also ordered. When we came out of the shop the 1st defendant locked up the shop. Defendants said they were locking up his shed and that he would leave Zaki-Biam town because of his abominational act of killing his former master. That was what they said ……”

The defendants did not either in pleading or evidence deny writing Exh. The 2nd defendant (D.W.2) stated that the plaintiff is a member of their meeting.

He testified further:

“I signed Exh A as the Secretary of Ifiteani meeting at Zaki-Biam.

I was mandated by the meeting to write Exh. A…………………….

We decided to write Exh. A because plaintiff is a member of our meeting at Zaki-Biam we cannot fold our hands and see his shop destroyed. He is our brother. Paragraph 3 section A and B mandated us to protect our fellow brothers.”

As stated earlier the defendants did not either in their pleadings or evidence deny writing Exh. A. In their paragraph 11 to 18 of the statement of defence at page 9 of the record, they admitted writing Exh. A but asserted that it was written to safeguard the goods of the plaintiff as their brother and member of Ifiteani meeting at Zaki-Biam. The plaintiff denied being a member of Ifiteani meeting. The onus of proof was on the defendant to produce relevant record to show that he was a member. Though the Constitution of Ifiteani meeting was tendered as Exh. D, that ipso facto did not make the plaintiff a member. An acceptable proof of his membership would have been the register of members where it was alleged he was No. 28. The register was produced and withdrawn. It was not tendered as exhibit. The onus of proof cast on the defendants by section 135 of the Evidence Act was not discharged. This case is not similar to the case of Agbai v. Okogbu (1991) 7 NWLR (Pt. 204) 391 where members o fan age grade in accordance with their custom seized the property of a member to enforce payment of levy for community development project. But even if the plaintiff in the case in hand were a member of the Ifiteani village meeting, the tenor of Exh. A did not show that it was written in good faith to safeguard the property of the plaintiff. A careful reading of Exh. A evinces an intention on the part of the defendants that the plaintiff pursuant to the decision of the Ifiteani village meeting was ostracised on account of his alleged involvement in the death of his former master Izuchukwu Atuegbu.

Learned counsel to the defendants in his brief of argument tried to rely on justification for the defamation by contending that the plaintiff was found guilty of the crime of killing Izuchukwu Atuegbu by the people’s court (the Umuna) at Ifiteani. He cited the case of Mongtup Din. v. African Newspapers of Nig. Ltd. (1990) 3 NWLR (Pt. 139) 392. With respect to counsel, I am unable to accept this contention. The case cited is not apposite to the case on hand. In that case, that is Din. v. African Newspapers of Nigeria Ltd supra the appellant Din in a libel action claimed that he had retired meritoriously after serving the Nigerian Army for nine years but in actual fact he was dismissed from the Nigerian Army from 6th December, 1971 after being found guilty of a criminal offence and convicted by a military court and sentenced to over 12 months imprisonment at the Kirikiri Prison. It was held he had no reputation to protect. In the case in hand, the Ifiteani village meeting which adjudged the plaintiff and his parents responsible for the killing of Izuchukwu Atuegbu was not a court of competent jurisdiction capable of trying and convicting any person of crime. It does not qualify as a court capable of pronouncing the guilty or otherwise of the respondent for the death of Izuchukwu Atuegbu.

On a plea of justification, the law is that no action will lie for the publication of a defamatory statement if the defendant pleads and proves that it is true for as was stated in Mc Pherson v. Daniels (1892) 10 B&C 263 272

“For the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess”.

In the case in hand, the defendant did not plead justification as a defence to the action and it seems to me therefore a misconception for the counsel to raise it in this appeal..

In his consideration of the question whether the case of defamation was made out, the learned trial Judge on page 43 lines 22 to 35, page 44 lines 1 to 12 made the following findings:

“The plaintiff claims N50,000 as general damages for defamation. The plaintiff and P.W.3 were present when the defendants invaded the plaintiff’s shop. Both said the defendants gave as their reason for locking the shop the fact that plaintiff killed his former master Izuchukwu Atuegbu. Exhibit A was written to the P.W.2 conveying the decision and reason for the actions of the defendants. Exhibit A says plaintiff committed abominationary act. D.W.2 who co-authored Exh A gave the meaning of the term of “abominationary act” as the alleged killing of Izuchukwu Atuegbu by the plaintiff”.

The main question under consideration is whether Exh. “A” earlier set out in this judgment is defamatory of the plaintiff. The learned authors of Gatley on Libel and Slander 8th Edition on paragraph 4 defined defamation as follows:

“………….. any imputation which may tend to lower the plaintiff in the estimation of right thinking members of society generally, to cut him off from society or expose him to hatred, contempt or ridicule is defamatory of him”.

It is a statement which has a tendency to injure the reputation of the person to whom it refers which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feeling of hatred, contempt, fear dislike or disesteem. The statement is judged by the standard of an ordinary, right thinking members of society. Hence the test is objective. In Dina v. New Nigerian Newspaper (1986) 2 NWLR (Pt. 22) 353- it was held that:

“In determining whether certain words are defamatory the court or Judge’s duty is to apply the reasonable man’s test, that is whether under the circumstances in which the words were uttered or published reasonable man or reasonable persons of ordinary intelligence to whom the publication was made would likely understand them in a libelous sense”.

Publication of the defamatory statement is an essential element of the cause of action. It is the act of making the defamatory statement known to any person or persons other than the plaintiff himself. The cardinal principle of libel in law is that there must be publication of libelous matter to a third person other than the person libelled: this is because a person’s reputation is not based on the good opinion he has of himself but the estimation in which the others held him: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 299.

In my view, Exh. A is defamatory of the plaintiff. Even though it did not expressly state that the abominable act for which the plaintiff’s shop was being closed was his involvement with the death of his former master, P.W.2 to whom Exh. A was published understood that. This is so because the P.W.2 (Plaintiff’s elder brother was also present during the deliberation of the Ifiteani village meeting at which the plaintiff and his parent were held responsible for the death of Izuchukwu Atuegbu and were ostracised by the community on that account. When therefore P.W.2 received Exh A alleging that the plaintiff committed an abominable act, it goes without saying that the abominable act was the killing of Izuchukwu Atuegbu as the D.W.2 confirmed in his evidence. I therefore agree with the court below when on page 44 lines 9-12 of the record it said:

“exhibit A read with D.W.2’s explanation of the term ‘abominatory act’ is defamatory of the plaintiff. The libel has been proved including its publication to P.W.2. In the absence of any justification. I find the defendants liable for the libel”.

I hold that the defendants were rightly held liable in defamation and resolve the issue under consideration in favour of the plaintiff.

The plaintiff’s issue 2 which covers the defendants issues 3 and 4 relates to the trial Judge’s award of N25,000.00 as general damages in favour of the respondent. This award relates to loss of profit caused to the plaintiff by the defendants’ wrongful interference with the plaintiff’s business. For a better appreciation of the issue, I will reproduce the following paragraphs of the statement of claim viz. 5, 19 and 21 (iii) which read as follows:

“5.     That the plaintiff normally and particularly on Zaki-Biam market days realises between N3,000.00 – N5,000.00 from the sale of his goods and between N2,500 – N3,000 on ordinary/other days.

  1. Following the above development in paragraphs 15 and 16 above and particularly from 12/4/93 when plaintiff’s shop was locked up by the defendants, he has been incurring losses of between N2,500.00 – N5,000.00 daily as profit for sale of his goods, as plaintiff has been banned from having access to his source of livelihood in his shop at F10 Zaki-Biam.

21(iii) ……………….Plaintiff claims N50,000.00 general and special damages for loss of profit which he would have derived from the sale of his goods since 12/4/93,

From the above averments there appears to be a certain amount of confusion as to the basis on which the plaintiff is claiming damages. By paragraph 5 supra the basis is on gross sales while in paragraph 19 it is on expected profits. The same confusion lingered on in the evidence adduced in proof of damages. On page 15 lines 5 to 6 the plaintiff testified thus:

“The profits I made on every Zaki-Biam market day ranges from N3,000.00 to N5,000.00.

On the other hand, P.W.3 the plaintiff’s servant or apprentice on page 19 lines 11 to 13 said:

“On Zaki-Biam market days we used to get between N3,000 and N5,000.00. On ordinary days we realise between N2,500 at N3,000.00”

Testifying further in cross-examination on the same page in lines 31-33 he said:

“The N2,500.00 to N3,000.00 represent sales for ordinary days. The N3,000.00 to N5,000.00 represents the sales for market days. It is only plaintiff that knows the gains or profits from the sales”.

It is evident from the above extracts that while the plaintiff (P.W.1) testified on net profits, P.W.3’s evidence relates to gross profits. It is not surprising that the learned trial Judge refused to make any award on special damages. It is trite law that where the evidence in support of a party’s case is in conflict therewith, the evidence so tendered goes to no issue. The action would be deemed to fail: See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275, Emegokwue v. Okadigbo (1973) 4 SC 113 and National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 NWLR 99 at page 127, Ufele v. Umeh (!995) 5 NWLR (Pt. 393) 114. In the instant case where the pieces of evidence adduced in proof of anticipated profit are in conflict, the plaintiff has failed to prove the special damages he has claimed. The learned trial Judge was therefore amply justified in not making any award for special damages. The question to consider is whether having rejected the claim for special damages, he can under the head of general damages make an award in respect of the said matter for which special damages had been refused?

It seems to me that the award of general damages is improper where the question of loss is ascertainable. It is wrong to take into account in awarding general damages matters which have been considered in awarding special damages. In the case of U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 at 586 the Supreme Court, per Wali, J.S.C. stated:

“The general principle of law is that an award of general damages is a matter for the trial Judge and that normally an appeal court will not interfere with such award, unless:

(i)      Where trial Judge has acted under a mistake of the law.

(ii)     Where he has acted in disregard of principles.

(iii)    Where he has acted under a misconception of facts.

(iv)    Where he has taken into account irrelevant matters or failed to take account of relevant matters or

(v)     Where injustice would result if the appeal court does not interfere.

See Yesufu Adewuyi v. Abidade & ors (1976) 4 WACA 169 Solanke v. Ajibola (1969) 1 NMLR 253; Uyo v. Fel Egware (1974) 1 All NLR 293; Zik’s Press Ltd. v. Ikoku 13 WACA 188. The appeal court is entitled to interfere with an award of damages made by a Judge where the circumstances calling for its interference are shown to the appellate court. See Flint v. Lovell (1935) 1 K.B. 354; Agba v. Otobusin (1961) 2 SCNLR 13; (1961) 1 All NLR 299 and Obere v. The Board of Management Eko Baptist Hospital (1978) 6-7 S.C.

The award of general damages is improper where the quantum of loss is ascertainable: See Kerewi v. Odegbesan (1967) 1 NMLR 89″.

In the case of West African Shipping Agency (Nig.) Ltd & Anor v. Alhaji Musa Kalla (1978) 3 SC 21 the Supreme Court per Eso J.S.C. dealing with an award of general damages, said at pages 31, 32

“But the learned trial Judge also awarded general damages. It is not stated on a record upon what principles the award was made. Before making the award however, the learned trial Judge said that “the loss of expected profits and indeed the freight on the goods which was proved were however not claimed as special damages in the writ. No doubt, if this had been claimed, it would have had to be proved as special damages and an award of general damages in regard thereto to would be unjustified. It is true that in so far as awards of general damages are concerned a trial Judge must make its own assessment of the quantum of such general damages, and as pointed out by this court in Dumez (Nig) Ltd. v. Ogboli (1972) 1 All NLR 244 as per Lewis J.S.C. 250.

“On appeal to this court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle”.

It does appear to us that the award of general damages in this case was a way of compensating the plaintiff for the loss of expected profits and the freight on the goods which the learned Judge said was proved but not claimed in the writ. This cannot be justified. It is wrong for the learned trial Judge to take into consideration for the award of general damages matters which he should have considered in his award of special damages”.

In the case in hand, the plaintiff’s claim for loss of profits caused by the defendants interference with his business is in the nature of special damages as the losses are quantifiable. The plaintiff failed to adduce credible-evidence in support of that claim. I am of the view that the learned trial Judge by awarding the plaintiff N25,000 general damages was compensating him for the special damages he failed to establish. The award is therefore based on wrong principle of law and cannot be allowed to stand. Since, however the defendant’s interference with the plaintiff’s business is wrongful he is entitled to nominal damages as general damages. I therefore reduce the amount of N25,000 awarded as general damages to N5,000.

The plaintiff’s 3rd issue for determination covers the defendant’s 1st and 2nd issues for determination which complains of improper or non evaluation of evidence by the court below before it reached the conclusion that the defendant locked up the plaintiff’s shop on 12/4/93.

The main thrust of the defendants defence to the plaintiff’s claim that the defendants unlawfully forced him out from his store at No. F10 Zaki-Biam main market on 12/4/93 was a plea of alibi to the effect that on that day, that is 12/4/93 which was on Easter Monday the allegation that the plaintiff killed his former master was tried at Ifiteani villagers and that they as well as the plaintiff were at Ifiteani village not at Zaki-Biam on that day. The plaintiff maintained that the trial took place at Ifiteani on 1/4/93 and not 12/4/93 as asserted by the defendants. The plaintiff’s brother P.W.2 who was also present at the trial supported the plaintiff’s story that the trial took place on 1/4/93 while plaintiff’s apprentice P.W.3 confirmed that it was on 12/4/93 that the defendants invaded the plaintiff’s shop at No F10 Zaki-Biam market. On their part, the 1st, 2nd and 4th defendants maintained in their evidence that the trial of the plaintiff at Ifiteani village was on 12/4/93 on Easter Monday 1993 and in support of that, they called Chief Daniel Ezeani (D.W.7) who was the chairman of the Ifiteani village meeting that tried the plaintiff. He (D.W.7) confirmed in evidence that the trial was on 12/4/93 and not 1/4/93 as claimed by the plaintiff.

In the resolution of the conflict, the learned trial Judge on page 39 lines 9-35, page 40 lines 1 to 8 stated:

“It appears to me the argument of DW7 is that Ifiteani holds its annual conference on every Easter Monday which is Ifiteani day, that the 1993 conference was on Easter Monday and that April 12, 1993 was Easter Monday. If the Ifiteani Conference is organised like every other modern day meeting, one expects the minutes and other documents of the meeting of April 12, 1993 to establish that the Ifiteani conference in 1993 was on April 12, 1993 and that the defendants were in attendance ………………………………………………………………………………..The preponderance of the evidence I believe is that on April 12, 1993 the four defendants entered the shop of the plaintiff, forced him out and locked up the shop and went away with the key. I believe the plaintiff and P.W. 3 on this. Their evidence are corroborated in some respects by P.W.2, Exh. A and the statement of defence in which the defendants were said to have acted in the spirit of being their brothers keepers. Whether the defendants actually acted in good faith is a different matter. I do not believe the defendants and P.W 7 that on April 12, 1993 the defendants were not Zaki-Biam Benue State but at Ifiteani Agulu in Anambra State. I believe the plaintiff and P.W.3 that they saw the defendants at store No F10 Zaki-Biam main market on the said April, 12, 1993”.

The defendants have made a fuss about the above finding.

They argued on page 5 of their brief that “the failure by the respondent (plaintiff) to invite his parents to come and testify, inspite of the averment in paragraph 10 of the statement of defence is a manifestation of the fact that he knew that evidence would be unfavourable to him”. With respect to counsel, I am unable to see the relevance of paragraph 10 of the statement of defence in the case. In any case, it was the defendants who settled the statement of defence and it is on them that lies the burden of adducing evidence in proof of their averment therein. Furthermore, section 149(d) of the Evidence Act which counsel presumably had in mind in reference to the failure of the failure of the plaintiff to call his parents to testify has no application. The section deals with withholding of evidence and not their failure to call a particular witness: Onwujumba v. Obienu (1991) 4 NWLR (Pt. 183) 16 at 25. It is also the law that a party is not bound to call a particular witness if he can prove his case otherwise: See Francis Odili v. The State (1977) 4 SC 1 at 8, Bello v. Kassim (1969) NMLR 148, Abele Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538, Adelumole v. The State (1988) 1 NWLR (Pt. 73) 683. The plaintiff’s brother (PW2) had testified at the instance of the plaintiff. It seems to me unreasonable and ridiculous for the defendants to expect the plaintiff to call his parents who apparently are living at Ifiteani-Agulu to spend money to travel all the way to Katsina-Ala to give evidence on the Ifiteani village meeting which P.W.2 their son attended.

The defendants highlighted what they called contradictions in the evidence of P.W.1 and P.W.2 with respect to whether the trial of the plaintiff (P.W.1) came on appeal from their kindred Agbani to the Ifiteani village meeting and as to whether the accusation of killing Izuchukwu Atuegbu was made against the plaintiff alone or with his parents. It was also contended that there was contradiction between the testimony of the plaintiff (PW 1) and his apprentice (P.W3) on the daily profits realised from the plaintiff’s business. This latter contradiction has been dealt with elsewhere in this judgment and will not be repeated here. Suffice it to say that the court below did not consider that the contradictions had the effect of discrediting the witnesses. I consider it a sound proposition of law that evidence of a witness may be believed in part and rejected in part: See Abimbola Sanyaolu v. The State (1976) 5 SC 37, 49, Aremu v. Board of Customs and Excise (1967) NMLR 258. Okputu Obiode & ors v. The State (1970) 1 All NLR 35. It did not appear that the court below believed the PW.1 and P.W.3 on the the question of anticipated daily profits since it made no finding to that effect, nevertheless that would not prelude it from accepting their evidence on other matters testified to. On the former contradictions referred to in the evidence of P.W.1. and P.W.2 that to my mind is inconsequential and insufficient to affect the merit of this appeal.

Reference was made to the evidence of D.W.7 that is, the chairman of the Ifiteani village meeting who presided at the meeting that tried the plaintiff and who confirmed that the trial took place on 12/4/93 and not 1/4/93. It was argued that his evidence ought to have been preferred to that of the plaintiff without stating any reason. With respect to counsel, this criticism is not well founded. In the extract reproduced above the learned trial Judge gave cogent reasons for preferring the plaintiff’s case to that of the defendants. It must be stressed that the burden was on the defendants to prove that the trial at Ifiteani village was on 12/4/93 and not 1/4/93 since they raised the alibi and therefore assume the burden of proving same. In a civil case, the burden of proof is on preponderance of probability. A party on whom the burden of proof lies does not discharge same if evidence adduced on both sides is evenly weighed: See Francis Odiete v. Okotie (1973) 1 NMLR 175. Since the evidence of DW 7 that the meeting of Ifiteani people wherein the plaintiff was tried was held on 12/4/93 appears to be evenly weighed with the plaintiff’s assetion that the event took place on 1/4/93, the DW7 ought to have tendered the record of the minutes of the proceedings of the Ifiteani village meeting in question. If there was one to convince the trial court to accept his own version of the story. Having failed to do so and thereby failed to discharge the burden on him, the learned trial Judge was amply justified in the conclusion he arrived at.

Most of the arguments advanced by the defendants hereinbefore touch on the credibility of witnesses. The time honored principle of law laid down in a long string of authorities is that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and duly assessed the witnesses. Where such a court of trial has justifiably evaluated the evidence, it is not the business of the Court of Appeal to substitute its own views for those of the trial court; See Akinloye & Another v. Eyiyola & ors (1968) NMLR 92 at 95, Enang v. Adu (1981) 11-12 SC 25 at 39, Woluchem v. Gudi (1981) 5 SC 291 at 320. What the Court of Appeal ought to do is to ascertain whether or not there is evidence upon which the trial court acted. Once there is such evidence, the appellate court must not intervene even if such appellate court felt that if the facts were before it, it would not have come to the same conclusion at the trial court. See Akpagbue v. Ogu (1976) 6 SC 63; Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280, Ogundulu and ors v. Philips & ors (1973) NMLR 267. An appellate court may only interfere with the findings of facts of a trial court under special circumstances such as where the trial court did not properly evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial court where it has drawn wrong conclusion from accepted evidence or where the finding of the trial court is shown to be wrong or perverse in that it is not supported by evidence before the court: Ojo v. Governor of Oyo State (1989) 1 NWLR (Pt. 95) 1; Eholor v. Osanyade (1992) 6 NWLR (Pt. 249) 524 at 548, Eigbajale v. Oke (1996) 5 NWLR (Pt. 447) 128 at 143. As the findings of the trial court being impugned by the defendants do not fall within any of the above special circumstances I decline the invitation to interfere therewith.

Finally the defendants complained about the trial court’s treatment of Exhibits C1, C2 and E, which are the photographs (Exhs C1 and C2) said to be of plaintiff’s shop No F10 Zaki-Biam main market and receipt (Exh.E) dated 24/7/93 purportedly issued to D.W.4 who claimed to have purchased a flask from the said shop. They were tendered in evidence in attempt by the defendants to establish that despite Exh A, the plaintiff’s shop remained opened for business at the relevant time. The defendants grouse is that the learned trial Judge did not place any document may be admissible in evidence under the provisions of Evidence Act, the weight to be attached to its content is another matter for every piece of evidence that has been admitted in course of proceeding is subject to be tested for credibility, weight or congency by the trial court before it becomes acceptable documentary evidence: See Ayeni v. Dada (1978) 3 SC 35 at 41, section 92(1) Evidence Act 1990. From the record of the proceedings, it is manifest that the rejection of Exhs C1 and C2 was because the evidence of D.W.4 at page 27 lines 1-2 of the record stated that “Goddy and Bros” was the inscription on the plaintiff’s shop while D 6 who took the photographs stated that there was no such inscription. See page 29 lines 21 to 22. The D.4 and DW6 therefore contradicted each other. Exhibits C1 and C2 did not reflect any of the description of the plaintiff’s shop as stated by DW4 and DW.6. This left the trial court in doubt as to the authenticity of Exhs. C1 and C2 which might be the photographs of any other shop. Furthermore the defendants did not confront PW.3 with any of these Exhibits viz C1, C2 and E. Since it was alleged that he issued Exh. E to a customer (DW.4), the receipt Exh. E ought to have been shown to him when he testified. Rather, the defendants without confronting him with it tendered the document through D.W.4. This to say the least is unorthodox and no doubt had the effect of diminishing the weight to be attached on the document. I will therefore resolve the issue under consideration in favour of the plaintiff.

The upshot of this appeal is that it has succeeded partially. The appeal is partially allowed. The awarded of N25,000 to the plaintiff in the judgment of Eko J in suit No. KHC/30/94 delivered on 11/4/94 is set aside. In its place, I award the plaintiff N5,000 as general damages. Subject to that, the said judgment is affirmed. I make no order as to costs.

{Nigerian Cases referred to}

Adelumola v. State (1988) 3 NWLR (Pt. 34) 235

Agada v. Otubusin (1961) 2 SCNLR 13

Akinloye v. Eyiyola (1968) NMLR 92

Akpagbu v. Ogu (1976) 6 SC 63

Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273

Aremu v. Board of Customs and Excise (1967) NMLR 258

Ayeni v. Dada (1978) 3 SC 35

Bello v. Kassim (1969) 1 NMLR 148

Din. v. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392

Dina v. New Nigerian Newspaper (1986) 2 NWLR (Pt. 22) 353

Eholor v. Osanyade (1992) 6 NWLR (Pt. 249) 524

Eigbajale v. Oke (1996) 5 NWLR (Pt. 447) 128

Emegokwue v. Okadigbo (1973) 4 SC 113

Enag v. Adu (1981) 11-12 SC 25

N.I.P.C. Co. Ltd. v. Thompson Organisation Ltd.(1969) 1 NMLR 99

Nsirim v. Nsirm (1990) 3 NWLR (Pt. 138) 285

Obiode v. State (1970) 1 All NLR 35

Odiete v. Okotie (1973) 1 NMLR 175

Odili v. State (1977) 4 SC 1

Ogundulu v. Philips (1973) NMLR 267

Ojo v. Gov. Oyo State (1989) 1 NWLR (Pt. 95) 1

Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275

Onafowokan v. State (1987) 3 NWLR (Pt. 61) 238

Onwujumba v. Obienu (1991) 4 NWLR (Pt. 183) 16

Sanyaolu v. State (1976) 5 S.C. 37

U.B.N. LTD. v.Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558

Ufele v. Umeh (1995) 5 NWLR (Pt. 93) 114

Uyo v. Egware (1974) 1 All NLR 293

West African Shipping Agency (Nig) Ltd. v. Kalla (1978) 3 S.C. 21

Woluchem v. Gudi (1981) 5 S.C. 291

Zik’s Press Ltd. v. Ikoku 13 WACA 188


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