A WRITTEN STATEMENT ON OATH THAT LACKS THE WORDS OF SWEARING CANNOT SUFFICE IN LAW
GTB PLC v. ABIODUN (2017) LPELR-42551(CA)
PRACTICE AREA: CIVIL PROCEDURE
INTRODUCTION
In filing of pleadings, most Civil Procedure Rules require parties to file witness statement on oath alongside other documents. In the instant appeal, PAUL OBI ELECHI, J.C.A. explained a written statement as follows: “…A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents' case as required by Order 32 Rule 2(1) of 3(1) of the Rule of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case.” He went further to say “Order 3 Rule 2(1)(c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit.” Consequently, it was posited that the only acceptable form of witness statement is a statement on oath.
The court went on to consider whether where the Oaths Act is not followed word-for-word, substantial compliance with the provisions of the Oaths Act can be used as a defence. PAUL OBI ELECHI, J.C.A. in delivering the leading judgment said: “I do not agree with the submission of the Respondent’s counsel that since there was a substantial compliance with the provisions of the Oaths Act, an affidavit should not be declared incompetent merely because the words prescribed by the Act have not been used word for word. The Rule of Court in that aspect must be obeyed and it is not a kind of breach that can be referred to as a technicality as respondent’s counsel would like us to believe.”
He went on to say that “It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provide as follows: "I do solemnly and sincerely declare........." Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, can not be said to be a Written Statement on Oath. See: Obed Orlando Ibe & Anor. v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593. Section 13 of the Oaths Act provide as follows:
"It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true".
In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows:
"Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called.”
PAUL OBI ELECHI, J.C.A. then proceeded to talk about the import of non-compliance with the provisions of the Oath Act. In his words: “As stated earlier in the course of this judgment, any written statement which does not bear the 1st schedule to Section 13 of the Oath Act, can not be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent's sole witness in the present appeal. Non compliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed.” Put differently, where the written statement on oath is not in tandem with the provisions of the Oath Act, the supposed written statement on oath is a nullity and same is not valid in law.
FACTS OF THE CASE
The original facts of this case relates to banker-customer relationship. However, while filing pleadings at the High Court of Justice sitting at Ado Ekiti, paragraph 35 of the written statement oath of the claimant’s (now Respondent’s) sole witness and paragraph 30 of the additional written statement on oath in support of the Reply to statement of Defence filed at the registry of the Court were both deposed to as follows: “That I swear to this affidavit in truth and in good faith”
The respondent (now Appellant) raised an objection to the competence and validity of the said statements and by extension the evidence placed before the Court. The trial Court however treated same as an irregularity and/or technicality which has not affected the substance of the case because according to the Court, the same witness was subjected to another oath taking in the witness box and by the judgment of the High Court of Justice sitting at Ado Ekiti delivered on the 4th November 2015, all the legs of the Claimant’s (now Respondent’s) claim were granted.
The respondent (now Appellant) was dissatisfied with the said judgment.
The grouse of the Appellant upon which he filed his notice of appeal herein is that the trial judge, by admitting in evidence the written statement oath of the claimant’s (now Respondent’s) sole witness and the additional written statement on oath in support of the Reply to statement of Defence despite the import of the paragraphs 35 and 30 thereto, predicated its judgment on an affidavit and not on a written statement on oath as enjoined by the Rules of the High Court as contained in the provisions of Order 3 Rule 2 (1)(c) of the new Ekiti State High Court (Civil Procedure) Rules 2011.
He has therefore approached the Court of Appeal for redress.
ISSUE(S) FOR DETERMINATION
(1) Whether the lower Court rightly sustained the competence of the written statement on oath of the Respondents sole witness on the ground of irregularity and/or technicality. (Ground one of the amended Notice of Appeal.)
(2) Whether by the entirety of the evidence (oral and documentary) led before the lower Court, the trial Judge was right to have granted the claims of the Respondent.(Grounds 2, 3, 4 & 5 of the Amended Notice of Appeal.)
(3) Whether the award of N2 Million Naira as general damages is justified in the circumstance of this case
HELD
The three issues raised in this appeal were resolved in favour of the Appellant. The appeal was held to be highly meritorious and was hereby upheld and consequently allowed and the judgment of the lower Court was set aside. Appeal was allowed and N50, 000.00 cost was awarded in favour of the Appellant.
RATIO DECIDENDI
EVIDENCE - WRITTEN STATEMENT ON OATH: Distinction between affidavit and a written statement on oath
"It may be necessary to distinguish an affidavit and a written statement. An affidavit is that upon which motions are largely decided while written statement on oath upon which facts in pleadings are predicated. A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents' case as required by Order 32 Rule 2(1) of 3(1) of the Rule of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. See: B.V. Magnusson V. Koiki & Ors (1993) LPELR - 181-1818 (SC). Order 3 Rule 2(1)(c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit. See: Leo Melos Pharmaceutical Industries Ltd & Anor. V. Union Homes Savings and Loans Ltd (2010) (SCc) LPELR - 4431 (CA)." Per ELECHI, J.C.A. (Pp. 27-28, Paras. C-A)
EVIDENCE - ADMINISTRATION OF OATHS: The effect where a written statement on oath lacks the words of swearing or is shown not to have been sworn before a Commissioner for Oaths
"The above depositions in the alleged written statement are not in full compliance with the provisions of the oaths Act as to qualify as written statement on oath prescribed by Order 3 Rule 2(1)(c) of the Rules of the lower Court. The said Order 3 Rule 2(1)(c) of the Rules of Ekiti State High Court Rules mandatorily directs a claimant to file "written Statement on oath of the witnesses" among other documents along with his originating process. The word 'SHALL' as embodied in the said Order has been interpreted in many judicial authentic to mean 'compulsion' See: Onochie V. Odogwu (2006)6 NWLR (pt 975) 65 (SC). It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provide as follows: "I do solemnly and sincerely declare........." Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, can not be said to be a Written Statement on Oath. See: Obed Orlando Ibe & Anor. v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593. Section 13 of the Oaths Act provide as follows:
"It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true".
In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows:
"Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called." Per ELECHI, J.C.A. (Pp. 29-31, Paras. D-D)
LEGISLATION - OATHS ACT: Position of the law as regards noncompliance with the Oaths Act
"As stated earlier in the course of this judgment, any written statement which does not bear the 1st schedule to Section 13 of the Oath Act, can not be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent's sole witness in the present appeal. Non compliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed. See: Hard v. Hact (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115." Per ELECHI, J.C.A. (P. 32, Paras. B-F)
APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Principles upon which an appellate court acts when interfering with an award of damages
"The principles upon which an appellate Court acts in an appeal against the quantum of damages are well settled and were stated thus by Greer, LJ in Flint v. Lovell (1935) 1 K.B 354 at 360
"In order to justify reversing the trial Judge on the question of amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of la or that the amount awarded was so extremely high or so very small as to make, in the judgment of this Court an entirely erroneous estimate of the damage to which the plaintiff is entitled". Lord Greer L.J. in the English case of Flint v. Lovell (1935) 1 K.B. 354 aptly observed thus:
"I will be disinclined to reverse the findings of a trial Judge as to the amount of damages merely because they think that it they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled".
Where the learned trial Judge acted on wrong principles of law in quantifying damages, the Court of Appeal must intervene to make the proper assessment for damages that ought to have been awarded considering the peculiar facts and circumstances of the case. In Aremu Hassan v. Benjamia Tade (2001) 49 WRDN 130; (2011) LPELR 4235 my learned brother, Denton-West aptly observed thus:
"On the quantum of damages awarded, this Court will not generally alter an award of damages unless it is established that the Judge proceeded on a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple.''
See: Bhojosons Plc. V. Daniel Kallio (2006) 19 WRN 170; (2006) All FWLR (Pt. 312) 2038 - 2064 and Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWLR (PT. 1070) 1 AT 20. Per Mukhtar, JCA [Pp. 148 - 149] lines. 35 - 40." Per ELECHI, J.C.A. (Pp. 45-47, Paras. F-E)
COURT - APPELLATE COURT: Duty of an appellate court when hearing appeals
"It is usual that in the cause of writing a judgment, a judge is bound to air his views and make comments here and there and may also give reason for certain findings. That may well be so. However, the concern of this appellate Court is to determine whether the decision of the trial Court is right and not whether the reasons for the decision are correct. See Nkado v Obiano (1997) 5 NWLR (Pt. 503) 31, Nwankwo V. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377." Per ELECHI, J.C.A. (P. 42, Paras. D-F)
COURT - RAISING ISSUE(S) SUO MOTU: Whether the Court must call parties to address it on issues raised suo motu; effect of failure to do so
"... The trial judge raised the issue suo moto without offering the parties the opportunity to address her on the issue. Having raised such critical issue even at the eleventh hour of the case, the learned trial judge ought to have given the Appellant the right to be heard on that issue. Having not done so, there is no doubt that it has not fallen foul of the principles of fair hearing and I so hold.
Such a breach of fair hearing is capable of setting aside its decision. See Chief S.O. Adebayo & Ors v. People Democratic Party & Ors (2013) LPELR-20342 (SC)." Per ELECHI, J.C.A. (P. 43, Paras. A-D)
DAMAGES - AWARD OF DAMAGES: How general damages are awarded
"General damages is often presumed and awarded. However, a plaintiff can only be obliged with the discretionary powers of the trial Court if from the evidence adduced by him, the relief is actually proved. In other words, without the proof of the relief, the Court is beret of the discretionary power to presume that general damages accrued and award same." Per ELECHI, J.C.A. (P. 45, Paras. D-F)
OTHER CASES FROM THE COURT AND SOME OF THEIR RATIOS
EZEAGU v. GABIZZINLINGO PHARMACEAUTICAL CO. LTD & ANOR (2017) LPELR-42513(CA)
DAMAGES - SPECIAL/GENERAL DAMAGES: Position of the law where special damages are claimed in addition to general damages
"The position of the law is as stated by the Apex Court in the case of ELIOCHIN (NIG) LTD. & ORS vs. VICTORIA MBADIWE (1986) 1 NWLR (PT. 14) 47 where the Court held that if special damages are claimed in addition to general damages, in an action special damages will be awarded if strictly proved in addition to general damages. It is the view of this Court, in the instant case that the award of special damages along with that of general damages by the Court below does not in any way amount to double compensation. See also the case of ODIBA vs. AZEGBE (1998) 16 LRCN 4605 AT 4606, where it was held that where special damages have been strictly proved, the Respondent is also entitled to aggravated damages." Per OHO, J.C.A. (Pp. 63-64, Paras. D-A)
EVIDENCE - CONTRADICTION IN EVIDENCE: How should the court treat a witness where there is contradiction/inconsistency in his statement/evidence
"... I cannot help but be utterly bound by the observation of the Supreme Court in the case of EZEMBA vs. IBENEME (2004) LPELR-1205 (SC), where the Supreme Court per EDOZIE, JSC had this to say:
"No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness."
Against the backdrop of these positions, the Court below was bound to reject the entire evidence of the Cross-Respondent as it was constrained not to pick and choose evidence for the Cross-Respondent whose case totally crashed upon his admittance of his unworthiness and untruthfulness before the lower Court in the face of tons and tons of discrepancies. I am in agreement with learned Counsel for the Cross-Appellant that a witness who makes inconsistent statement in Court should be regarded as an untrue witness as regards those statements made. I cannot once again help but be utterly bound by the Supreme Court in the case of EYO vs. ONUOHA (2001) NSCQR 45 (PT. 1) 2010 AT 214 where it was held inter alia;
"For an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opponent who may in the process of cross - examination attack and debunk it. This may be done by the witness reneging from the testimony he has given or contradicting himself by falsifying his earlier evidence.
On the other hand, this evidence of one witness being contradicted by the evidence of another witness from same divide may weaken the overall effect of the evidence." Per OHO, J.C.A. (Pp. 78-80, Paras. D-A)
JUDGMENT AND ORDER - ORDER OF NON-SUIT: Effect of failure of Court to invite parties to address it before making an order of non-suit
"the position of the law in response to the contention of the Appellant is that where an order of non-suit is entered, failure to hear parties by the trial Court before the order is made would render such an order liable to be struck down. See the cases of CRAIG vs. CRAIG (1976) N.M.L.R. 52; BAKARE ELUFISOYE vs. SAMUEL ALABETUTU (1968) N.M.L.R. 299 AT 301; D. AIGBE vs. BISHOP JOHN EDOKPOLOR (1977) 2 S.C. 1 AT 15 -16; OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT. 70) 370 AT 396." Per OHO, J.C.A. (Pp. 51-52, Paras. E-A)
2. AMINU v. NWANKWO (2017) LPELR-42502(CA)
- ACTION - CLAIM(S)/RELIEF(S): Position of the law on alternative claims
The position of the law is that alternative claims can only be made where a Plaintiff sets up two or more inconsistent sets of material facts and claims reliefs on each of them in the alternative. Usually, the law regarding claims made in the alternative is that where the Principal claim of a party succeeds and is granted by the Court, there will be no need to consider any alternative claim thereto as only one of two or more alternative reliefs will be granted. See M.V. CAROLINE MAERSK vs. NOKOY INVESTMENT LTD (Supra). But where the Plaintiff as in the instant case and on a set of the same facts and not two or more asks for a relief and probably a second relief made in the alternative, then an alternative claim cannot in the strict sense of the word be said to have been made especially when alternative cases have not been alleged as in the instant case. This is even more so when the facts relating to these claims have not been separately stated in order to show on what specific facts each alternative head of relief is claimed. See the cases of METAL CONSTRUCTION (W.A) LTD vs. ABODERIN (1998) LPELR-1868 (SC); UNIVERSITY OF CALABAR vs. UKOHA OBAJI OJI (2011) LPELR-5069. "Per OHO, J.C.A. (Pp. 31-32, Paras. F-F)
CONTRACT - EXEMPTION CLAUSE: Whether an exemption clause in a contract may avail a party who has been guilty of a fundamental breach of the contract
"The settled position of the law, however is that an exemption clause can only avail a party if he is carrying out the contract in its essential respect. What that means in essence, is that a breach of the contract, which goes to the root of the agreement disentitles a party from relying on an exemption clause. In the case of EAGLE SUPER PACK (NIG.) LTD vs. AFRICAN CONTINENTAL BANK PLC (2006) LPELR-980 (SC), this was what the Supreme Court had to say on the subject per TABAI, JSC;
"An exemption clause in a contract may not avail a party who has been guilty of a fundamental breach of the contract."
A fundamental breach of contract can be defined as an event resulting from the failure of a party to the contract to perform a primary obligation, which has the effect of depriving the other party of substantially the whole benefit, which it was the intention of the parties that he should obtain from the contract. It is instructive to note, however, that the primary obligation which the Appellant in the instant case was expected to perform was the supply of 710 bags of cement upon receiving payment of the said sum of Nine Hundred and Ninety four thousand (N994,000.00) Naira only as totally agreed cost of the cement. If therefore given the circumstances of this case, the Appellant's failure, refusal and/or neglect to supply the said 710 bags of cement to the Respondent does not amount to a fundamental breach, then this Court wonders what would. Under the common law, a party can only be availed of the benefits of an exemption clause when the party abides by the terms and conditions of the contract and not when he is guilty of a fundamental breach of the contract. In the case of IMNL vs. PEGOFOR INDUSTIRES LTD (2005) ALL NLR 234, the Apex Court reinstated the common law rule in Nigeria that an exemption clause will not be available to a party who is in fundamental breach of a contract." Per OHO, J.C.A. (Pp. 37-38, Paras. A-D)
CONTRACT - AGREEMENT: Whether parties are bound by the terms of their agreement
"As a result of the sanctity of agreements freely entered into between contracting parties and the need to safeguard the interests of the parties this Court would shudder at any suggestions by either of the parties that extraneous matters are read into Exhibit A which remains the fulcrum of the relationship existing between the parties in this case. I am in agreement with learned Appellant's Counsel that Exhibit A being documentary in nature is therefore permanent and cannot be varied by parole evidence. When therefore, as it is observed in the instant case, there is not contained in Exhibit A, that a supply of the cement by the Appellant shall be made "piece meal" to the Respondent, same shall therefore not be allowed to be read into the Exhibit. See the cases of EKE vs. FRN (2013) ALL FWLR (PT. 702) 1748 AT 1804; ARTRA INDUSTRIES (NIG) LTD vs. NIGERIA BANK OF COMMENCE AND INDUSTRY (1998) 4 NWLR (PT. 546) 357 AT 376 and several cases on the subject. "Per OHO, J.C.A.
EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of establishing the existence of a term of an agreement
"In respect of the Appellant's contention that from what was agreed between the parties, that the 710 bags of cement was not to be supplied to the Respondent in bulk but in "piece meal", and upon demand whenever the Respondent is about to commence his building, it is quite remarkable to observe that the Court below was right when it refused to read into the content of Exhibit 'A' what obviously was not contained in the Exhibit. Interestingly, what a careful perusal of the Exhibit would reveal is that the so called "piece meal" arrangement of the Appellant was never a part of the Exhibit. The Appellant, therefore having asserted that the supplies were meant to be made: "piece meal" had the duty of discharging the burden of establishing that fact and which he had failed to do. See the case of BABINGTON ASHAYE vs. E.M.A. GENERAL ENTERPRISES (NIG.) LTD (2012) ALL FWLR (PT. 645) 256 AT 264 where this Court per PETER ODILI, JCA (as he then was) stated thus:-
"The burden of establishing the existence of a term of an agreement rest squarely on the party asserting such a term..."Per OHO, J.C.A. (Pp. 38-39, Paras. E-D)
3. AINA & ANOR v. DADA & ANOR (2017) LPELR-42553(CA)
EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can be allowed to discredit or contradict a documentary evidence
"The law is settled that the contents of a document cannot be varied or altered by oral submission or arguments." Per AKINBAMI, J.C.A. (Pp. 22-23, Paras. G-A)
EVIDENCE - ADDRESS OF COUNSEL: Whether address of counsel can take the place of evidence
"Giving that the trial Court has properly considered and evaluated all the facts and documents placed before it by the parties in this case, Appellant's counsel cannot allude that his written address has not been evaluated. What the learned trial judge is meant to do is to receive evidence in proof of claims of parties.
Thereafter listen to address of counsel, which is not evidence in proof of claim. The address of counsel I must state is not a substitute for the evidence on record before a trial Court. The address of counsel no matter how brilliant cannot take the place of legal proof. See: ISHOLA v AJIBOYE (1998) NWLR (Pt 532) 71; CHUKUJEKWU v OLALERE (1992) 2 NWLR (Pt 221) 86.
It is trite law that the address of counsel cannot take the place of pleadings by a party. Any legal defence on behalf of a party should be raised in his pleadings and not in the address of his counsel. See AYORINDE v SOGUNRO (2012) 11 NWLR (Pt 1312) 460 at 501 para D. Where facts are straight forward and remain uncontested it only requires minimum proof. It is cogent and Credible evidence that determine cases and not the advocacy or brilliance of counsel as espoused in an address which is a poor substitute for proper evidence. See ONAH v OKOM (2012) 8 NWLR (Pt 1301) 169 at 193 para E - G." Per AKINBAMI, J.C.A. (Pp. 26-27, Paras. E-E)
EVIDENCE - EVALUATION OF EVIDENCE: Duty of a trial court to evaluate the entire evidence before it; what is expected of an appellate court where the evaluation of evidence done by a trial judge is challenged
"The learned trial judge rightly utilized the opportunity of seeing and hearing the witnesses and documents tendered, and therefore in my view properly evaluated the evidence before him and made the correct findings of facts concerning the matters in dispute which he was called upon to intervene. It is not the business of the appellate Court to evaluate evidence proffered at the trial Court. IORAKPEN BEGHA v MKPEN TIZA (2000) 4 NWLR (Pt 652) 193 at 211 - 212.
I am fully aware of the fact that the function of this Court, being an appellate Court, is mainly restricted to seeing whether or not there was evidence before the trial Court upon which its decision of facts was based: whether it wrongly accepted or rejected any evidence tendered at the trial, whether evidence called by the other party to the conflict was put on either side of an imaginary scale and weighed against the other: in other words whether the trial Court correctly approached the assessment of evidence before it. Whether evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. See ANACHUNA ANYAOKE & ORS v DR FELIX ADI & ORS (1986) 3 NWLR (Pt 31) 731 at 742. MBA NTA & ORS v EDE NWUDE ANGBO & ORS (1972) ALL WLR (Pt 2) 74 at 80: MOGAJI v ODOFIN & ORS 1972 4 SC 91: OGBODA v ADULAGBA (1971) ALL NLR at 71.
It is trite law also, that once an issue canvassed did not involve the credibility of witness but only on non-evaluation or improper evaluation of evidence adduced at the lower Court, an appellate Court has to usurp the function of lower Court and interfere and evaluate the evidence adduced at the trial Court which the latter failed to evaluate or improperly evaluate same. See the cases of MESSR. NIG LTD v IBRAHIM (1975) 5 SC 55 at 66; EGONU v EGONU (1978) 11 - 12 SC 575: ABISI v EKWEALOR (1993) 6 NWLR (Pt 302) 643 at 673." Per AKINBAMI, J.C.A. (Pp. 28-29, Paras. A-D)
4. KWAGE & ORS v. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR-42508(CA)
ACTION - LEGAL PERSONALITY: Who is a juristic person
"The concept of Juristic personality or legal persons is now central to virtually every legal system. A juristic person is a bearer of rights and duties simpliciter and has nothing to do with whether he is a natural person or not; but who is given legal personality by the law. A juristic person may be a company or a firm or some Governmental Agency or body for example. In other words, Juristic persons are entities other than human beings and on which the law bestows legal subjectivity. This does not mean that they assume the guise of natural persons, but that the law for the sake of some economic or social expediency recognizes a thing or community or group of persons as having legal personality and therefore the capacity to be the bearer of rights and duties and the ability to participate in the life of the law in its own name. As "juristic persons", they are so called because it is the law that accords them that status, and as artificial persons created by the law, they can sue and be sued in their own names."Per OHO, J.C.A. (Pp. 16-17, Paras. E-D)
COURT - RAISING ISSUE(S) SUO MOTU: Position of the law where Court raises an issue suo motu
"The contention of Appellants' Counsel is that it is wrong for the Court below to have raised suo motu the issue of visiting the locus in quo without giving the parties an opportunity to be heard on it. The settled position of the law, however, is that the Court below ought not to have raised an issue suo motu
and decide upon it without hearing from the parties. But the apex Court is of the view that this applies to questions of fact and that in some special circumstances the Court can, especially in issues of law or jurisdiction suo motu and without the parties decides upon it. See TUKOR vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; EFFIOM & ORS vs. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) LPELR-1027 (SC)."Per OHO, J.C.A. (Pp. 54-55, Paras. E-C)
EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Effect of a plea of estoppel per rem judicatam
"The Court below having visited the locus in quo and having made its findings, which included the fact that the Appellants' application had been caught by the doctrine of estoppel per rem judicatam, which, when successfully pleaded would ousts the jurisdiction of Court before whom it is raised. See the case of IGWEGO & ORS vs. EZEUGO & ANOR (1992) LPELR-1458 (SC)."Per OHO, J.C.A. (P. 55, Paras. C-E)
EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Application of the principle of res judicata
"It is perhaps, trite that where a Court of competent jurisdiction has settled by a final decision the matter in dispute between the parties, neither party nor his privy may re-litigate that issue again by bringing a fresh action on it, because the matter is said to be res judicata. See OGBOGU & ORS vs. NDIRIBE & ORS (1992) LPELR- 2283 (SC)."Per OHO, J.C.A. (Pp. 55-56, Paras. E-A)
EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Effect of a plea of estoppel per rem judicatam
"Following a long line of decided cases the law is, and remains that the plea of res judicata, which the Court below found to be applicable in this matter prevented the Court from enquiring into a matter already adjudicated upon as it ousts the jurisdiction of Court to so do. In addition, the plea operates not only against the parties whom it affects but also against the jurisdiction of the Court itself as the party affected is estopped per rem judicatam from bringing a fresh claim before the Court as there has to be an end to litigation."Per OHO, J.C.A. (P. 57, Paras. A-D) - read in context
WORDS AND PHRASES - "PERSON": Meaning of "person"
"There may be the need to begin with the classical position. The word: 'person' is derived from the Latin term: 'persona', which meant the actor's mask through which his voice must be sounded. The word later on, came to be used for those who could bear rights and duties. At the present time, it has acquired the
meaning of denoting a being as one, which is capable of sustaining legal rights and duties. Thus, any person, whether natural or artificial, capable of sustaining legal rights and duties would be a legal person irrespective of the fact that he is a human being. The learned Author, CHIPMAN GRAY in his book: "The Nature and Sources of the Law" (2nd Edition, 1921) p. 27 defines: "person as an entity to which rights and duties may be attributed". On the part of SIR JOHN SALMOND, in his book "Salmond on Jurisprudence" (12th Edition) p. 299 observes that: "A person is any being, whether a human being or not, whom the law regards as capable of rights and duties." Per OHO, J.C.A. (Pp. 15-16, Paras. F-E).
