THE GUARDIAN, Tuesday, April 9, 2013
LAW
71
LawReport Where findings of facts are not perverse, appellate court cannot interfere (2) N500,000 general and aggravated damages jointly and severally against the 1st and 2nd appellants? Appellants’ contention on issue two It was submitted that there was no basis for the award of N500,000 general and aggravated damages jointly and severally against the first and second appellants. It was contended that the first appellant, therefore, could not be in breach of contract in selling the property subject matter and would, therefore, not be liable for damages thereof since the respondents had defaulted. Respondents’ arguments on issue two Attention was drawn to the testimony of the PW2 in evidence in chief: ‘The Magistrate’s Court have (sic) the order the vehicles were broken down and had to be towed to the panel-beater for repairs after the order was given because it has been abandoned for one-and-a-half- years. The Magistrate made two orders to enable me carry the vehicles,” page 1, lines 1-5 of records.
In the Court of Appeal, Nigeria, Akure Judicial Division, Holden at Akure, On Monday, December 3, 2012, Before their Lordships: Kudirat M. O. Kekere-Ekun, Justice, Court of Appeal; Chima Centus Nweze, Justice, Court of Appeal; Chinwe Eugenia Iyizoba, Justice, Court of Appeal; CA/B/10/2007 Between Enterprise Bank Limited (Formerly, Spring Bank Plc/Owena/Omega Bank Nig Plc). Mr. Gabriel Gold Igbalaiye (appellants), and Emma Bayo Aregbesola Nig. Company Limited Mr. Emmanuel Boyade Aregbesola (respondents). T was argued that PW1 was an expert by Iapplicable virtue of Section 57 of the Evidence Act (then to the proceedings). The point was made that the appellant, who did not produce expert evidence, did not contradict this piece of evidence. In effect, the evidence of this expert, whom the respondents produced, remained un-impeached by the appellants. Counsel submitted that items or commodities do appreciate. It was noted that there was a world of difference between items or commodities bought in 1994 and those that were purchased over four years after in 1998. Thus, as at September 7, 1998, the second respondent’s property was valued at N7,408,550.00. There was, therefore, no basis for the comparison of the valuation report in 1994 and that of 1998. It was contended that there was evidence of collusion and bad faith in the sale of the mortgaged property between the first and second appellants. Counsel submitted that in view of the fact that the officials of the first appellant bank were bribed (with) the sum of N200,000:00 (two hundred thousand naira) before the sale of the mortgaged property to the second appellant, the sale was illegal and fraudulent, citing Sodipo v Lemminkainem OY and Anor (1985) 2 NWLR (pt 8) 547, 557. Counsel turned to page 8 of the record. In the third leg of their claim, the plaintiffs/respondents claimed that the purported sale, as grossly undervalued, cheap and ridiculous price, of the respondents’ property is unconstitutional, unlawful, illegal, null and void. As noted earlier, the appellants inveighed against the judgment of the lower court on two main grounds. On page 6 (paragraph 3.1) of the amended appellants’ brief, it was submitted that the court was wrong in setting aside the sale of the mortgaged property on the ground that there was collusion between the first and second appellants in the sale of the property and that the property was sold at an undervalue. In their attempt to vitiate the exercise of the mortgagee’s power of sale, that is, (first appellant’s) power of sale, the respondents, produced an independent expert, PW1. The spirited efforts which the appellants made to prevent the admissibility of the said expert’s report failed as the lower court held that the witness was an expert within the meaning of Section 57 (2) of the Evidence Act (then applicable to the proceedings).
Justice Mukhtar (CJN)
Instructively, they did not call any expert evidence, as the respondents did. Rather, they placed reliance on exhibit D9, which was prepared in 1994, that is, five years before the sale of the property. In other words, the court weighed the testimonies of the parties on imaginary scale. It found that the scale preponderated in favour of the plaintiffs’ claim that the property was not in a state of disrepair as contended by the defendants (now appellants). Against the background of the fact that exhibit D9 was made in 1994, five whole years before the sale of the property, it was not surprising that the court accorded due weight to exhibit P2 which “was prepared less than a year (about seven months) before the sale of the property. The court found that the said exhibit and the testimony of PW1 were “sufficiently contemporaneous to the time of the sale (seven months) to be of probative value.” In all, the court did not “believe that there could have been such depreciation of the property (with furniture and fittings) within seven months as would justify its sale at less than a quarter of its estimated value. The implication of this findings that the house was not in such a state of disrepair as to “justify its sale at less than a quarter of its estimated value,” is, simply, that the undervalue was gross, that is, that the price was very low. In our view, the lower court cannot be justifiably faulted in the exercise it carried out, as described above. It is well-settled that where issues are raised and joined in the pleadings and
oral evidence, the court cannot resolve them without evaluating the available evidence, Mobil Prod. Nig UnLtd v. Monokpo (2003) 18 NWLR (pt. 852) 346, 436, that is, without assessing or estimating them so as to be able to ascribe value to them, Osazuwa v. Isibor 92004) 3 NWLR (pt. 859) 16, 39. Now, we have to remind ourselves that issues relating to the ascription of weight to the testimonies of witnesses are the exclusive prerogatives of the trial court: prerogatives which no appeal court can interfere with, Ebba v Ogodo (1984) 1 SCNLR 372; Owie v Ighiwi (2005) 5 NWLR (pt 917) 184, 208. This is so for the trial court has the power to ascribe credibility to the evidence of witnesses who testified before it. Thus, where findings of facts are not perverse, an appellate court cannot interfere with them, Ajuwa v Odili (1985) 2 NWLR 9pt 9) 710; Chukwueke v Nwankwo (1985) 2 NWLR (pt 6) 195 Nzekwu v Nzekwu (1989) 2 NWLR (pt 104) 373. As a corollary, an appeal court will only interfere where the findings are perverse. In such situations, therefore, the interference of the appellate court, with the findings of fact, would be to put the facts and the law in their proper context and perspective, Balogun v Agboola (1974) 10 SC 111. In this case, we are satisfied that the above findings are not perverse. We, therefore, endorse them, that is, the findings, that there could not have been “such depreciation of the property (with furniture and fittings) with seven months as would justify its sale at less than a quarter of its estimated value.” Whether there was basis for the award of
It was argued that the act of the appellant of selling the second respondent’s mortgaged property and that of refusing him to remove his vehicles thereby preventing him from doing business with the vehicles for about one-and-a-half years was both callous and vindictive. The respondents were, therefore, entitled to aggravated damages, Odiba v Azege (1998) 611 LRCN 4605; Ekochin Nig Ltd and Ors v Mbadiwe (1986) 1 NWLR 9pt 14) 49. Before returning to the task of the resolution of this issue, we think it is important to deconstruct the terminological obfuscation prevalent in the briefs of counsel. Both the appellants and respondents, and indeed, the lower court, referred to the awards in respect of the tenth and eleventh heads of claims as “aggravated damages”, “special damages.” With the most profound respect, we would like to call attention to the infelicity of these usages. Regrettably, notwithstanding the above findings as to want of evidence to spite or ridicule the respondents in the actual sale of the property, the court later made a volte face and contradicted itself when it said “there is also evidence on which I can base aggravated or punitive damages, which require evidence of deliberate conduct of the defendant intended to ridicule or spite the plaintiffs’ pages 121-122. In our view, the two findings are, mutually, exclusive. Thus, one version of the findings must cave in under the weight of its contradiction. It is on this score that we entirely agree with the appellants that the claims for “special” and “aggravated” damages were not proved. We find for the appellants on this issue. We find meritorious, the other two issues are bound to fail. For the avoidance of doubt, the judgment of this court is as follows: • There is no merit in the complaints of the appellants against the judgment of the lower court in respect of the first and third issues. The appeal is, therefore, dismissed as they relate to those issues; • The complaint with regard to the second issue, that is, the award of N500,000 aggravated damages, jointly against the appellants, is meritorious. The appellants’ appeal is allowed in respect of that ground, that ground alone; • There is no merit in the notice to contend. It is hereby dismissed. Subject to two above, this appeal is bound to be, and is hereby, dismissed. The judgment of the lower court is affirmed save as it relates to two above. Parties are to bear their costs.