Mathew Mbogu V. Adviser Shadrack (Now Amagbe) (2007)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

The Appellant was the Plaintiff in the trial court. He claimed in his writ of Summons against the Respondent who was the defendant as follows:

I quote “The plaintiff claimed from the defendant the sum of Two Million Naira being the contractually agreed sum for the breach of contract; and the sum of Two Million Naira being General Damages for breach”

The case went on trial and the Appellant testified and tendered several exhibits, the Respondent also testified and tendered exhibits. At the end of the trial the learned trial Judge dismissed the Appellant’s claim and upheld part of the Respondent’s counter claim and awarded N10,000.00 as General Damages against the Appellant. The Appellant being dissatisfied with the judgment appealed to this Court.

The Appellant in his Notice of Appeal filed the following Grounds of Appeal quoted hereunder without the particulars.

“(i) The learned trial Judge erred in law when she held inter alia ‘Plaintiff’s case on Oath is that he paid cash of N173,000.00 on the day of the execution of Exhibit ‘A’ Also the fact that the sum was paid in cash is repeated in Exhibit C1 when counsel to plaintiff wrote to the Counsel to the Defendant. However this state of affairs is Not borne out in Exhibit ‘A’ itself as though Defendant Purportedly received N173,000.00 it was not specially written as N173,000.00 cash. On oath the Defendant produced Exhibit G to show a Cheque which he said was given to him as part payment for the N173,000.00 covenanted by both parties. It was his defence that on presentation the Cheque was not honoured. The evidence of both sides on this issue is not helped as plaintiff did not call any witness to prove he gave cash to the defendant. It cannot be said therefore that plaintiff has proved that he gave N173,000.00 cash to the defendant on the preponderance of evidence.

(ii) The Learned trial Judge erred in law when she held as follows:

It is not clear for what reason plaintiff stopped the cheque he gave the defendant, just as I do not believe that the purpose of paying off one Mr. Efenudu as the cheque is dated 25/11/99 whereas the plaintiff did not report the issue of piracy to the police until 17/12/99, Exhibit E on the other hand can not be ascribed any credibility.

(iii) The Judgment is against the weight of evidence.”

Briefs were filed and exchanged by parties. When the appeal came up for hearing in this Court, counsel to parties adopted and relied on their briefs of argument. The appellant in his brief filed on 10/12/04 distilled two issues thus,

(1) Whether the learned trial Judge was right in law when he held that the appellant failed to prove on the totality of the evidence led in this case that he gave N173,000.00 cash to the Respondent on the preponderance of evidence.

(2) Whether in all the circumstances of this case the appellant Proved that the Respondent breached the contract

On his own the Respondent also formulated two issues:

(1) Whether the learned trial Judge was not right in dismissing the relief sought by the appellant in the lower Court.