LAWAL & ANOR v. UMARU

CITATION: (2018) LPELR-46695(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON FRIDAY, 16TH NOVEMBER, 2018Suit No: CA/K/329/2014

Before Their Lordships:

OBIETONBARA O. DANIEL-KALIO Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of AppealJAMES GAMBO ABUNDAGA Justice, Court of Appeal

Between1. AMADU LAWAL2. MUSA SANI - Appellant(s)

AndALHAJI SULE UMARU - Respondent(s)

RATIO DECIDENDI1. ACTION - DEFENCE TO AN ACTION: Effect of failure to file a defence to an action

"As held by the Supreme Court in the case of Nwadike v Ibekwe (1987) 18 NSCC Part 2 P 1219at 1230 lines 30 - 35, per Agbaje JSC :"A statement of law to the effect that where there is an absence of defence to a Plaintiff's casethe only alternative is to give judgment for the Plaintiff cannot be faulted."Per ADEFOPE-OKOJIE,J.C.A. (P. 22, Paras. D-F) - read in context

2. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can award less than what is claimed"It is a general principle of law that where a party claims a particular amount but was able toprove less, a Court has the power to award the less amount proved but not more than what theparty has claimed. See Jeric Nigeria Ltd v. UBN Plc (2000) 15 NWLR Part 691 Page 447 at 464Para F per Kalgo JSC; First Bank of Nigeria PLC v. Dr. Abdulkadir Oniyangi (2000) 6 NWLR Part661 Page 497 at 513 Para A, per Onnoghen JCA (as he then was)."Per ADEFOPE-OKOJIE, J.C.A. (P.24, Paras. B-D) - read in context

(201

8) LP

ELR-46

695(

CA)

3. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought andobtained before fresh point can be raised on appeal; effect of failure thereof"The law is that an issue which was not distinctly raised, argued and pronounced upon by a trialCourt cannot be validly raised as a ground of appeal or as an issue for determination before theappellate Court, without the leave of the appellate Court. Such an issue or argument made isnot competent and goes to no issue. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLRPart 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Sogunro v Yeku (2017) 9 NWLR Part1570 Page 290 at 311 Para C per Nweze JSC; Idufueko v. Pfizer Products Ltd (2014) 12 NWLRPart 1420 Page 96 at 122 Para A per Galadima JSC."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 10-11,Paras. E-B) - read in context

(201

8) LP

ELR-46

695(

CA)

4. EVIDENCE - EXPERT OPINION/EVIDENCE: Who is an expert witness"Now, an expert has been defined by the Supreme Court in the case of Omisore v Aregbesola(2015) 15 NWLR Part 1482 Page 1 at 302 Para B-F; (2015) All FWLR Part 813 Page 1673 at 1753Para F-H, per Ngwuta JSC, as: "...a person who, through education or experience, has developeda skill or knowledge in a particular subject that he or she may form an opinion that will assistthe fact-finder.... When a Court has to form an opinion upon a point of foreign law, or of scienceor art, or as to identity of handwriting or finger impressions, the opinions upon that point ofpersons specially skilled in such foreign law, science or art, or in questions as to identity ofhandwriting or finger impressions are relevant facts. Such persons are called experts.....Anexpert is one who has made the subject upon which he speaks, a matter of particular study,practice or observation, and he must have a particular and special knowledge of the subject"As also held in Okereke v Umahi (2016)11 NWLR Part 1524 Page 438 at 478 Para A, an expert isa person specially skilled in the field he is giving evidence. In the case cited by the Appellant'sCounsel of Alake v State (1991) 7 NWLR Part 205 Page 567 at 592 Para E-F, it was held, per TobiJCA (as he then was), that "an expert witness is a person who by formal and organized trainingin his chosen profession has acquired a deep knowledge of the area he is called upon to giveevidence." Also cited by the Appellants' Counsel is the case ofShell Petroleum DevelopmentCompany of Nigeria Ltd v Otoko (1990) 6 NWLR Part 159 Page 693 at 712-713 Para H-A perOmosun JCA where an expert was defined as a person "specially skilled in the field in which he isgiving evidence." In Action Congress of Nigeria v Nyako (2015) 18 NWLR Part 1491 Page 352 at393 Para C-F, the Supreme Court, per M.D. Muhammad JSC, defining this word, held: "...where aCourt or Tribunal is required to form an opinion upon a point specified, the opinion of personsspecially skilled in the areas are admissible. It is a condition precedent to the admissibility of theopinion, to enable the Court form its own opinion, that it is that of a person specially skilled inthe area the Court or Tribunal is required to form its opinion on a point. The qualification,experience and depth of the person's learning are the invariable criteria which entitle him torender the opinion in order to aid the Court or Tribunal. The person so qualified under thesection is called an expert..... It is the Court's prerogative to determine that the person beingcalled as a witness, by his qualification and learning is indeed specially skilled." PW3, describinghis occupation, stated that he is a farmer and cattle rearer. His evidence is also that "I know thecows". He gave a graphic description of the cows as follows, at Page 21 of the Record:"I know Alh. Sule Umar, I also know Ahmadu Lawal and Musa Sani. The two stole Alh. SulesCows, thirteen in number. I know the cows. There is one Sudare will cost N70,000 there is FariN50,000, there is Gala N140,000, then Ya N140,000 then Dogaye N140,000 then Ole N140,000,Faraye N140,000, then Maida N140,000, Kundumi N100,000, then Gunda N80,000 then HureN70,000 then Shoda N120,000 then Gana N60,000..."Under cross examination, giving his capability to give the evidence, he stated as follows:"The Plaintiff is my father. I am the cattle rearer and he is my father."He followed this up by giving the number of the cows that were pregnant and what transpired intheir bid to recover the cows.The witness was never questioned on his lack of capacity to give evidence or his depth ofexperience. He was also not challenged on his intimate knowledge of the cows. It was also notsuggested to him that he was lying. Having failed to question the witness on his ability to givethe evidence on the cattle, their cost and the state they were in, the Appellants are deemed tohave accepted his knowledge of the subject matter. They cannot now be heard to question hiscapability, I hold. See Unipetrol (Nig) Plc v Adireje W/Africa Ltd All FWLR Part 231 Page 1238 at1279 Para D - E per Sanusi JCA (as he then was). It should be emphasized that an expert, to beso called, does not have to possess western education or have gone through some formaleducation. To qualify as an expert, what is important is that the person, either througheducation or experience, has developed a skill or knowledge in the subject. This is a question forthe Court to decide..."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 5-9, Paras. E-D) - read in context

(201

8) LP

ELR-46

695(

CA)

5. EVIDENCE - HEARSAY EVIDENCE: What amounts to hearsay evidence"By Section 37 (a) of the Evidence Act 2011 (as amended), hearsay is defined as a statement"oral or written made otherwise than by a witness in a proceeding."It was held in the case of Utteh v State (1992) 2 NWLR Part 223 Page 257 at 273, Para E-F perNnaemeka-Agu JSC, quoting from Taylor on Evidence 12th Edition, on this subject, as follows: "Inits legal sense "hearsay" evidence is all EVIDENCE which does not derive its value solely fromthe credit given to the witness himself, but which rests also, in part, on the veracity andcompetence of some other person."If any such evidence is designed to prove the truth of the statement and not merely the factthat the statement was made, then it is hearsay and inadmissible: See Subramaniam v. PublicProsecutor (1956) 1 W.L.R. 965, at p.969, P.C. In our law, all facts may be proved by oralevidence (Section 75 of the Evidence Act). By Section 76(b) of the Act, such oral evidenceincludes what a witness heard, subject to the rule of exclusion of hearsay evidence. What awitness heard in the presence of an accused person cannot be hearsay."Per ADEFOPE-OKOJIE,J.C.A. (Pp. 12-13, Paras. E-D) - read in context

6. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proofwhere commission of crime is directly in issue"It is indeed the correct statement of the law, as held in the cases cited above, that if thecommission of a crime by a party to a proceeding is directly in issue in any proceeding, civil orcriminal, it must be proved beyond reasonable doubt.Section 135 of the Evidence Act Supra, the statute in point, provides as follows:1. If the commission of a crime by a party to any proceeding is directly in issue in anyproceeding civil or criminal, it must be proved beyond reasonable doubt.2. The burden of proving that any person has been guilty of a crime or wrongful act is, subject toSection 139 of this Act, on the person who asserts it, whether the commission of such act is or isnot directly in issue in the action."Per ADEFOPE-OKOJIE, J.C.A. (P. 15, Paras. A-E) - read incontext

7. EVIDENCE - CONFESSIONAL STATEMENT: Whether confession is the best form of evidencein a criminal trial"A confession has been held to be the best form of evidence in a criminal trial. See FRN v DaIro(2015) 6 NWLR Part 1454 Page 141 at 179 Para G-H per Nweze JSC."Per ADEFOPE-OKOJIE, J.C.A.(P. 21, Paras. A-B) - read in context

8. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonabledoubt means proof beyond all shadow of doubt"Proof beyond reasonable doubt has been held not to mean proof beyond a shadow of doubt butproof with a high degree of probability that the offence was committed. See Udo v State (2016)12 NWLR Part 1525 Page 1 at 43 Para A-B, per Peter-Odili JSC; Ehimiyein v State (2016) Part1538 Page 173 at 198 Para E-F by the same learned jurist."Per ADEFOPE-OKOJIE, J.C.A. (P. 21,Paras. D-F) - read in context

9. JUDGMENT AND ORDER - ERROR/MISTAKE IN JUDGMENT: Whether every error/mistake ina judgment will result in a judgment being set aside; circumstance where error/mistake in ajudgment will result in a judgment being set aside"it is not all errors in a Judgment appealed against that will result in the setting aside of thejudgment and allowing the appeal. It is only those errors that have caused a miscarriage ofjustice and are so substantial as to affect the justice of the case, except rectified by an appellateCourt. See Nguma v. A-G Imo State (2014) 7 NWLR Part 1405 Page 119 at 146- 147 Para A-B perM.D. Muhammad JSC; Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 107 Para E-F perPeter-Odili JSC; Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 29 Para F-H per Ogunbiyi JSC;Ohakim v. Agbaso (2010) 19 NWLR Part 1226 Page 172 per Onnoghen JSC (as he then was). It isalso well established that where there is other evidence to support a judgment, the judgment, inspite of the error of the trial Judge, will not be vitiated. See Diamond Bank Ltd v. PartnershipInvestment Co Ltd (2009) 18 NWLR Part 1172 Page 67 at 95 Para G-H, per Ogbuagu JSC."PerADEFOPE-OKOJIE, J.C.A. (P. 16, Paras. A-E) - read in context

(201

8) LP

ELR-46

695(

CA)

(201

8) LP

ELR-46

695(

CA)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE,

J.C.A.(Delivering the Leading Judgment): The claim

before the lower Court revolved around an accusation by

the Respondent of the theft, sometime in 2008, of 22 of his

cows from where they were being kept at Majenn Wayya

Village of Chiranchi Local Government Area of Katsina

State. The theft, referred to in common parlance as “cattle

rustling” was reported to the Association set up to stop

thieving, drug taking, rape and other vices. The cows were

eventually traced to Zamfara State. Unfortunately only

some of the cows were able to be recovered. In

consequence, the Respondent instituted a claim before the

lower Court seeking the following reliefs:

“1. A declaration that the Plaintiff is the bona fide

owner of the 12 cows taken away by the Defendants.

2. A declaration that the Defendant’s action of taking

the Plaintiff’s Cows without his consent is unlawful

and unconstitutional.

3. An order of mandatory injunction compelling the

Defendants to produce the 12 cows (together with

their young ones delivered by the pregnant ones

among them) belonging to the Plaintiff

1

(201

8) LP

ELR-46

695(

CA)

which they unlawfully misplaced or in the alternative,

pay the Plaintiff the cost of the 12 cows being the

sum of One Million, Three Hundred and Thirty

Thousand Naira (N1,330,000.00k) only.

4. The sum of Ninety Thousand Naira (N90,000.00k)

only being the value of the cow sold at Sixty Thousand

Naira (N60,000.00k) only by the plaintiff in order to

settle the people who helped him to trace and/or

recover the cows.

5. General damages against the Defendants for the

expenses incurred by the Plaintiff in tracing the cows

for about a year, the psychological disturbance and

trauma for losing the cows and the filing and

prosecuting this suit together with such other costs

that the Honourable Court may deem fit and just to

award in the interest of justice in the circumstance.

In proof of his claim before the lower Court, the

Respondent called three witnesses. On the date fixed for

defence, the defence Counsel informed the Court that he

was closing the case of the defence for failure of its

witnesses to appear. The case was thence adjourned for

adoption of written addresses, after which it was adjourned

for judgment. The lower Court, the High Court of

2

(201

8) LP

ELR-46

695(

CA)

Katsina State, in its judgment delivered by Abdullahi Yusuf

J., on 18/6/12, held the Respondent’s claim proved and

entered judgment in the following terms:

1. It is hereby declared that the plaintiff is the bona

fide owner of the 12 cows taken away by the

defendants.

2. It is hereby declared that the defendants’ action of

taking the plaintiffs’ cows without his consent is

unlawful and unconstitutional.

3. The defendants are hereby compelled to produce

the cows belonging to the plaintiff (together with

their young ones delivered by the pregnant one

among them) belonging to the plaintiff which they

unlawfully misplaced or in the alternative pay the cost

of the 12 cows being the sum of N1,330.000.00 only.

4. The defendants should pay the sum of Ninety

Thousand Naira only (N90,000) being the value of the

cow sold at N60,000 (Sixty Thousand Naira) only by

the plaintiff in order to settle the people who helped

him to trace and or recovered the cows.

Prayer number 5 is vague but general damages of

N50,000.00 is awarded against the Defendants.”

3

(201

8) LP

ELR-46

695(

CA)

Dissatisfied, the Defendants, Appellants herein, appealed to

this Court, by Notice of Appeal dated 26th day of May,

2014 and filed on 27th day of May, 2014. The Appellants’

Brief of Arguments filed on 15/7/14 was settled by A.I

Adams Esq. The Respondent however filed no Brief of

Arguments, learned Counsel to the Respondent, having

informed the Court, prior to the hearing, that he had lost

contact with the Respondent.

At the hearing of the appeal, on 10/10/18, none of the

parties were present. They were also not represented. In

consequence, the Court deemed the Appellants’ Brief as

duly argued, pursuant to Order 19 Rule 9(4) of the Court of

Appeal Rules 2016.

Notwithstanding the failure of the Respondent to file any

Brief of Argument, this appeal shall be considered on its

merits.

In the Appellants’ Brief of Arguments, 3 issues were

distilled for the Court’s determination, to wit:

i. Whether the lower Court was right when it relied on

the evidence of PW3 in arriving at its decision.

ii. Whether the trial Court was right to have admitted

and relied on legally inadmissible evidence to arrive

at its decision.

iii. Whether the Respondent has proved his case

before the lower Court in accordance with the law to

warrant judgment of lower Court in his favour.

4

(201

8) LP

ELR-46

695(

CA)

I shall adopt these issues, the first of which is:

Whether the lower Court was right when it relied on

the evidence of PW3 in arriving at its decision.

Learned Counsel to the Appellant has contended that the

learned trial Judge misdirected himself in believing the

testimony of PW3 in arriving at its decision, when the

witness was not an expert in the field of buying and selling

cows. Defining who an expert witness is, Counsel argued

that the witness failed to state his qualifications and to

satisfy the Court that he is an expert on the subject matter.

He cited the cases of Alake v State (1991) 7 NWLR Part

205 Page 567; Shell Petroleum Development

Company of Nigeria Ltd v Otoko (1990) 6 NWLR Part

159 Page 693.

Now, an expert has been defined by the Supreme Court in

the case of Omisore v Aregbesola (2015) 15 NWLR Part

1482 Page 1 at 302 Para B-F; (2015) All FWLR Part

813 Page 1673 at 1753 Para F-H, per Ngwuta JSC, as:

"…… a person who, through education or experience,

has developed a skill or knowledge in a particular

subject that

5

(201

8) LP

ELR-46

695(

CA)

he or she may form an opinion that will assist the

fact-finder…. When a Court has to form an opinion

upon a point of foreign law, or of science or art, or as

to identity of handwriting or finger impressions, the

opinions upon that point of persons specially skilled

in such foreign law, science or art, or in questions as

to identity of handwriting or finger impressions are

relevant facts. Such persons are called experts…..An

expert is one who has made the subject upon which

he speaks, a matter of particular study, practice or

observation, and he must have a particular and

special knowledge of the subject”

As also held in Okereke v Umahi (2016)11 NWLR Part

1524 Page 438 at 478 Para A, an expert is a person

specially skilled in the field he is giving evidence.

In the case cited by the Appellant’s Counsel of Alake v

State (1991) 7 NWLR Part 205 Page 567 at 592 Para

E-F, it was held, per Tobi JCA (as he then was), that “an

expert witness is a person who by formal and

organized training in his chosen profession has

acquired a deep knowledge of the area he is called

upon to give evidence.”

6

(201

8) LP

ELR-46

695(

CA)

Also cited by the Appellants’ Counsel is the case ofShell

Petroleum Development Company of Nigeria Ltd v

Otoko (1990) 6 NWLR Part 159 Page 693 at 712-713

Para H-A per Omosun JCA where an expert was defined

as a person “specially skilled in the field in which he is

giving evidence.”

In Action Congress of Nigeria v Nyako (2015) 18

NWLR Part 1491 Page 352 at 393 Para C-F, the

Supreme Court, per M.D. Muhammad JSC, defining this

word, held:

“…… where a Court or Tribunal is required to form an

opinion upon a point specified, the opinion of persons

specially skilled in the areas are admissible. It is a

condition precedent to the admissibility of the

opinion, to enable the Court form its own opinion,

that it is that of a person specially skilled in the area

the Court or Tribunal is required to form its opinion

on a point. The qualification, experience and depth of

the person’s learning are the invariable criteria which

entitle him to render the opinion in order to aid the

Court or Tribunal. The person so qualified under the

section is called an expert….. It is the Court’s

prerogative to determine that the person being

7

(201

8) LP

ELR-46

695(

CA)

called as a witness, by his qualification and learning

is indeed specially skilled.”

PW3, describing his occupation, stated that he is a farmer

and cattle rearer. His evidence is also that “I know the

cows”. He gave a graphic description of the cows as

follows, at Page 21 of the Record:

“I know Alh. Sule Umar, I also know Ahmadu Lawal

and Musa Sani. The two stole Alh. Sules Cows,

thirteen in number. I know the cows. There is one

Sudare will cost N70,000 there is Fari N50,000, there

is Gala N140,000, then Ya N140,000 then Dogaye

N140,000 then Ole N140,000, Faraye N140,000, then

Maida N140,000, Kundumi N100,000, then Gunda

N80,000 then Hure N70,000 then Shoda N120,000

then Gana N60,000…”

Under cross examination, giving his capability to give the

evidence, he stated as follows:

“The Plaintiff is my father. I am the cattle rearer and

he is my father.”

He followed this up by giving the number of the cows that

were pregnant and what transpired in their bid to recover

the cows.

The witness was never questioned on his lack of capacity to

give evidence or his depth of experience.

8

(201

8) LP

ELR-46

695(

CA)

He was also not challenged on his intimate knowledge of

the cows. It was also not suggested to him that he was

lying.

Having failed to question the witness on his ability to give

the evidence on the cattle, their cost and the state they

were in, the Appellants are deemed to have accepted his

knowledge of the subject matter. They cannot now be heard

to question his capability, I hold. See Unipetrol (Nig) Plc

v Adireje W/Africa Ltd All FWLR Part 231 Page 1238

at 1279 Para D – E per Sanusi JCA (as he then was).

It should be emphasized that an expert, to be so called,

does not have to possess western education or have gone

through some formal education. To qualify as an expert,

what is important is that the person, either through

education or experience, has developed a skill or

knowledge in the subject. This is a question for the Court to

decide, which question was determined by the lower Court

in favour of the intimate knowledge by PW3 of the cows.

Indeed, one wonders what type of qualifications a cattle

rearer must possess to be able to give evidence of cattle he

rears? What better person is there to give evidence than

the person who it was that reared the cows and knows

about cattle rearing?

9

(201

8) LP

ELR-46

695(

CA)

It should be noted that PW3 gave evidence, not as an

expert but his personal knowledge of the cattle kept by him

and their prices, and the manner of their disappearance

and the subsequent discovery, which evidence was not

discredited.

The lower Court, in its judgment held:

“As I have said earlier the testimony of the Plaintiff

witnesses was neither challenged nor discredited. The

witnesses were not cross examined but the said cross

examination did not controvert what they said nor

discredit them as witnesses of truth…”

As aforesaid, the issue of lack of capacity of this witness

was never raised before the lower Court by Counsel to the

Appellants, either when the witness was giving evidence or

in Counsel’s address before the lower Court. All that was

submitted in final address on PW3 is that his evidence was

not tied to his pleadings.

The law is that an issue which was not distinctly raised,

argued and pronounced upon by a trial Court cannot be

validly raised as a ground of appeal or as an issue for

determination before the appellate Court, without the

10

(201

8) LP

ELR-46

695(

CA)

leave of the appellate Court. Such an issue or argument

made is not competent and goes to no issue. See Oforishe

v Nigerian Gas Company Ltd (2018) 2 NWLR Part

1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC;

Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290

at 311 Para C per Nweze JSC; Idufueko v. Pfizer

Products Ltd (2014) 12 NWLR Part 1420 Page 96 at

122 Para A per Galadima JSC.

The lower Court, I accordingly hold, was right to have

relied on the evidence of this witness in arriving at its

decision. In any event, the Appellant, not having sought the

leave of this Court to raise this issue, cannot contest the

acceptance of the evidence of this witness by the lower

Court. I accordingly resolve the 1st issue for determination

against the Appellant.

The 2nd issue for determination is the following:

Whether the trial Court was right to have admitted

and relied on legally inadmissible evidence to arrive

at its decision.

Learned Counsel has contended that the evidence of PW1

and PW2 were legally inadmissible, being hearsay evidence

and thus excluded by Section 38 of the Evidence Act 2011,

failure of the Appellant’s Counsel to object to

11

(201

8) LP

ELR-46

695(

CA)

the same, notwithstanding. The Court should thus

disregard the evidence and expunge same, citingOladipo v

Moba LGA (2010) 5 NWLR Part 118 Page 117.

The evidence referred to by learned Counsel is where PW1

said:

“I know Alh Sule Umaru he went to our Association

Head Quarters and reported that some people stole

his cattle…”

And where PW2 stated:

“Yes I know Alh Sule Umaru who is the Plaintiff in

this case… I know when he came and reported to us

that his cattle were stolen…..”

Without giving reasons as to why the evidence amounted to

hearsay and not admissible, he cited Oladipo v Moba LGA

(2010) 5 NWLR Part 118 Page 117 on the consequence

of reception of inadmissible hearsay evidence and the duty

to disregard same, if admitted inadvertently.

By Section 37 (a) of the Evidence Act 2011 (as amended),

hearsay is defined as a statement “oral or written made

otherwise than by a witness in a proceeding."

It was held in the case of Utteh v State (1992) 2 NWLR

Part 223 Page 257 at 273, Para E-F per Nnaemeka-

Agu JSC, quoting from Taylor on Evidence 12th

Edition, on this subject, as follows:

12

(201

8) LP

ELR-46

695(

CA)

"In its legal sense "hearsay" evidence is all EVIDENCE

which does not derive its value solely from the credit

given to the witness himself, but which rests also, in

part, on the veracity and competence of some other

person."

If any such evidence is designed to prove the truth of

the statement and not merely the fact that the

statement was made, then it is hearsay and

inadmissible: See Subramaniam v. Public

Prosecutor (1956) 1 W.L.R. 965, at p.969, P.C.

In our law, all facts may be proved by oral evidence

(Section 75 of the Evidence Act). By Section 76(b) of

the Act, such oral evidence includes what a witness

heard, subject to the rule of exclusion of hearsay

evidence. What a witness heard in the presence of an

accused person cannot be hearsay.

The statements referred to above by the Appellant’s

Counsel have, however, not been shown to be hearsay. The

witnesses were not challenged on their personal knowledge

of whether the report was made or not to the Association

they both belong to. There is thus nothing to disprove their

primary knowledge of the report made.

13

(201

8) LP

ELR-46

695(

CA)

The Appellants have thus failed to prove that the evidence

referred to above falls within the realm of hearsay evidence

and inadmissible. This evidence, I hold, was rightly relied

upon by the lower Court. I again resolve the 2nd issue for

determination against the Appellant.

The 3rd issue for determination, is:

Whether the Respondent has proved his case before

the lower Court in accordance with the law to warrant

judgment of the lower Court in his favour.

Learned Counsel to the Appellant challenged the statement

of the trial Judge, where he held:

“… in the case before this Court, the main issue for

determination is whether the Respondent was able to

prove his case on the balance of probabilities or

preponderance of evidence ….”

and where he concluded that:

“I hold that the Plaintiff has proved this case on the

balance of probabilities. I hereby enter judgment in

his favour and order as follows ……”

Counsel argued that the bone of contention in the case is

the theft of cows by the Appellants, which is a criminal

offence and for which the standard of proof, by Section

135(1) of the Evidence Act 2011, is

14

(201

8) LP

ELR-46

695(

CA)

proof beyond reasonable doubt. He cited the cases of

Nwobodo v Onoh (1984) NSCC Page 1 and Babale v

Eze (2011) 11 NWLR Part 1257 Page 48.

It is indeed the correct statement of the law, as held in the

cases cited above, that if the commission of a crime by a

party to a proceeding is directly in issue in any proceeding,

civil or criminal, it must be proved beyond reasonable

doubt.

Section 135 of the Evidence Act Supra, the statute in

point, provides as follows:

1. If the commission of a crime by a party to any

proceeding is directly in issue in any proceeding civil

or criminal, it must be proved beyond reasonable

doubt.

2. The burden of proving that any person has been

guilty of a crime or wrongful act is, subject to Section

139 of this Act, on the person who asserts it, whether

the commission of such act is or is not directly in

issue in the action.

The question is, whether this statement by the learned

judge that the standard of proof was on the balance of

probabilities when the standard should have been proof

beyond reasonable doubt, the commission of a crime being

in issue, was fatal to the Respondent’s case?

15

(201

8) LP

ELR-46

695(

CA)

This is because it is not all errors in a Judgment appealed

against that will result in the setting aside of the judgment

and allowing the appeal. It is only those errors that have

caused a miscarriage of justice and are so substantial as to

affect the justice of the case, except rectified by an

appellate Court. See Nguma v. A-G Imo State (2014) 7

NWLR Part 1405 Page 119 at 146- 147 Para A-B per

M.D. Muhammad JSC; Faleye v Dada (2016) 15 NWLR

Part 1534 Page 80 at 107 Para E-F per Peter-Odili

JSC; Ali v. State (2015) 10 NWLR Part 1466 Page 1 at

29 Para F-H per Ogunbiyi JSC; Ohakim v. Agbaso

(2010) 19 NWLR Part 1226 Page 172 per Onnoghen

JSC (as he then was).

It is also well established that where there is other

evidence to support a judgment, the judgment, in spite of

the error of the trial Judge, will not be vitiated. See

Diamond Bank Ltd v. Partnership Investment Co Ltd

(2009) 18 NWLR Part 1172 Page 67 at 95 Para G-H,

per Ogbuagu JSC.

In the instant case, the evidence of PW1, Muhammadu

Lawal, is that he is a farmer and cattle rearer. He belongs

to an Association set up to stop thieving, rape and the

taking of drugs.

16

(201

8) LP

ELR-46

695(

CA)

The Respondent reported at their Association’s

Headquarters that some people stole 22 cows belonging to

him. The 2nd Appellant was arrested with a double barrel

gun. He (2nd Appellant) however refused to speak on the

missing 22 cows for fear of the 1st Appellant, his father’s

younger brother, who, he said, would beat him. When

assured of his safety, he admitted that on the day of the

theft, there was the theft of 22 cows. He saw when the 1st

Appellant gave some unknown persons the 22 cows.

The witness stated further that when they asked the 1st

Appellant for his comments, he responded that the cows

are near the river. They (PW1) refused his pleas not to take

him to the Police with the gun recovered, in spite of his

offer to bribe them with N10,000 each and insisted on

reporting him to the Police. When they got to the river, they

were unable to come back with the cows.

Under cross examination, the witness said he is the

Secretary of the Association and had been in the

Association for 5 years. The cows were not recovered by his

people as they were not seen but were eventually

discovered.

The evidence of PW2, Alhaji Sule Umaru, also a farmer and

cattle rearer, was a

17

(201

8) LP

ELR-46

695(

CA)

confirmation of the evidence of PW1 with regard to the

report made by the Respondent to the Organisation of the

theft of his cattle and their arrest of the 1st Appellant, who,

he confirmed, had a gun in his possession. The 1st

Appellant, he said, insisted on the arrest of his son, Musa

(2nd Appellant). Musa initially refused to say anything for

fear of being beaten by the 1st Appellant. The 1st Appellant

admitted that all the cows were at the riverside, with one

Sanusi. Sanusi was arrested, also with a gun but escaped.

They apprehended him trying to run away with the cows.

Under cross-examination, the witness stated that he had

been a member of the Association for 7 years, since its

inception. He mentioned names of other members of the

Association and the purpose for which the Association was

set up.

Both witnesses stated that the 1st Appellant had been

reported to them before.

The evidence of PW3, Balele Shuaibu, also a farmer and

cattle rearer and the son of the Respondent, is that 22 cows

were stolen by the Appellants. They located 9 out of them,

13 having been sold. They searched for them for over a

year, eventually locating them in Zurmi.

18

(201

8) LP

ELR-46

695(

CA)

They were directed to go with the Village Head, Magaji

Kusada with his Security men to collect the cows. The

Appellants were released on bail. The Emir of Zurmi

insisted on handing over the cows to the Village Head of

Charanchi with his security men. They were asked to pay

them N51,900.00 for looking after the cows. They sold one

of their cows to raise the money for payment. He described

the cows stolen and their various prices.

Under cross examination, when questioned as to whether

he saw the Appellants stealing the cows, he insisted that

they are the ones as “that is their (Appellant) business

stealing people’s cow” He reiterated the number of

pregnant cows and the manner of arrest of the Appellants

and the retrieval of the cows. He also reiterated that they

were able to trace 9 of the cows, while the Appellants had

disposed of 13.

The learned trial Judge, following a review of the evidence

of the witnesses, held as follows, at Page 34 of the Record:

“As I have said earlier the testimony of the plaintiff

witnesses was neither challenged nor discredited. The

witnesses were cross examined but the said cross

19

(201

8) LP

ELR-46

695(

CA)

examination did not controvert what they said nor

discredit them as witnesses of truth.

It is in view of the foregoing that I refer to the case of

Garba v Zaria (supra) page 65 – 66 paragraphs H – B

on treatment of unchallenged and uncontroverted

evidence. “Where evidence is unchallenged, only

minimal proof is required of the person upon whom

the burden of proof lies.”

In the circumstances the evidence of the plaintiff

cannot by any stretch of imagination be referred to as

minimal it is ample evidence which was neither

challenged nor controverted hence it is believed by

this Court. The failure to discredit, controvert the

eloquent testimony of PW3 is fatal to the defendants.

On the whole, in view of the foregoing, I hold that the

plaintiff has proved his case on balance of

probabilities, I hereby enter judgment in his

favour…….”

As observed by the trial Judge and which I agree with, the

evidence of the Respondent’s witnesses was cogent and

compelling. Their evidence was not challenged or

discredited by the defence. Indeed the defence presented

no witnesses to disprove the evidence of

20

(201

8) LP

ELR-46

695(

CA)

the Respondent’s witnesses. In addition, the Appellants

confessed to the crime.

A confession has been held to be the best form of evidence

in a criminal trial. See FRN v Dairo (2015) 6 NWLR Part

1454 Page 141 at 179 Para G-H per Nweze JSC.

The desirability of corroborative evidence in addition to the

oral confession made to PW1 and 2 was also satisfied in

this case, I hold, by the evidence of the Respondent’s

witnesses.

Thus, though the trial Judge erred in holding the standard

of proof to be on the balance of probabilities and

preponderance of evidence, the allegation against the

Appellants, I hold, was proved beyond reasonable doubt.

Proof beyond reasonable doubt has been held not to mean

proof beyond a shadow of doubt but proof with a high

degree of probability that the offence was committed. See

Udo v State (2016) 12 NWLR Part 1525 Page 1 at 43

Para A-B, per Peter-Odili JSC; Ehimiyein v State

(2016) Part 1538 Page 173 at 198 Para E-F by the

same learned jurist.

In the instant case, there was a high probability, from the

uncontradicted evidence of the Respondent’s witnesses

that the offence was committed.

(201

8) LP

ELR-46

695(

CA)

21

(201

8) LP

ELR-46

695(

CA)

PW1 and PW2 were members of the Association set up to

curb the prevalence of rape, theft and drugs, and to which

Association the Respondent lodged a report. They

investigated and apprehended the Appellants, who

admitted the crime. The Appellants were also arrested with

guns. Some of the cows were also recovered. The evidence

of PW3, who kept the cows was also direct and compelling.

Their cross examination did not challenge the theft and

subsequent apprehension of the Appellants or their

admission of the offence, neither was it discredited.

The Appellants, by their failure to not only challenge the

Respondent’s witness in any material particular or present

witnesses in disproof thereof, failed to disclose any doubt to

the Respondent’s allegation, I hold.

As held by the Supreme Court in the case of Nwadike v

Ibekwe (1987) 18 NSCC Part 2 P 1219 at 1230 lines

30 – 35, per Agbaje JSC :

“A statement of law to the effect that where there is

an absence of defence to a Plaintiff’s case the only

alternative is to give judgment for the Plaintiff cannot

be faulted.”

22

(201

8) LP

ELR-46

695(

CA)

Thus, even though the lower Court erred in putting the

standard of proof to be on the balance of probabilities and

preponderance of evidence, this error, I hold, did not

occasion a miscarriage of justice, as it is clear from the

uncontroverted facts of this case, that the allegation of

theft against the Appellants was proved beyond reasonable

doubt.

Counsel also alleged that there was a contradiction

between the evidence of the Respondent’s witness, PW3,

where he stated under cross examination, that only 9 cows

were recovered and 13 were disposed of, and the

Respondent’s pleadings that there were 10 cows

discovered. He submitted that where evidence of a party

goes contrary to pleadings, it should be discountenanced.

While there is a slight discrepancy in the number said to be

recovered, the Statement of Claim stating them to be 10

while PW3 in his evidence in chief and cross examination

said them to be 9, there is no prejudice to the Appellants,

as the lower Court, in its 3rd relief granted, ordered for

payment to be made for the lesser number of 12 cows

pleaded as missing rather than for 13, which would have

been the case had it been 13 cows proved to have been

missing.

23

(201

8) LP

ELR-46

695(

CA)

The lower Court held:

“The defendants are hereby compelled to produce the

cows belonging to the Plaintiff (together with their

young ones delivered by the pregnant one among

them) belonging to the Plaintiff which they unlawfully

misplaced or in the alternative pay the cost of the 12

cows being the sum of N1,330.000.00 only.”

It is a general principle of law that where a party claims a

particular amount but was able to prove less, a Court has

the power to award the less amount proved but not more

than what the party has claimed. See Jeric Nigeria Ltd v.

UBN Plc (2000) 15 NWLR Part 691 Page 447 at 464

Para F per Kalgo JSC; First Bank of Nigeria PLC v. Dr.

Abdulkadir Oniyangi (2000) 6 NWLR Part 661 Page

497 at 513 Para A, per Onnoghen JCA (as he then

was).

In resolving the 3rd issue for determination against the

Appellants, I hold that the Respondent successfully proved

its case in accordance with the law and that judgment was

rightly entered against the Appellants.

Having resolved all the issues against the Appellants, I hold

that this appeal totally lacks merit and it is hereby

dismissed.

Costs of N50,000 are awarded against the Appellants.

24

(201

8) LP

ELR-46

695(

CA)

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had

the privilege of reading the draft judgment of my Lord

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree

with the reasoning and conclusions of my Lord on all the

issues in this appeal. I see no need to add anything to

further buttress the judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the

privilege of reading in draft the judgment delivered by my

learned brother, Adefope-Okojie, JCA. Therein, my learned

brother eloquently demonstrated in-depth understanding of

the issues for determination in the appeal by applying the

law to established facts.

Therefore, I am in agreement with him that this appeal is

totally devoid of merit and ought to be, and was rightly

dismissed by him.

25(201

8) LP

ELR-46

695(

CA)

Appearances:

Parties absent and unrepresented ForAppellant(s)

Parties absent and unrepresented ForRespondent(s)

(201

8) LP

ELR-46

695(

CA)