GATAH (NIG.) LTD. & ANOR. V. ABU & ANOR. (2005)

Background

This appeal arose from the judgment of the High Court of Justice, Makurdi, Benue State, in Suit No. MHC/145/91, delivered on 1998-04-30. The appellants, Gatah (Nig.) Ltd. and Gabriel Attah, had claimed jointly and severally against the respondents, Odu Jacob Abu and Ada Olepa, special and general damages totalling N420,000. The claim arose from an alleged fraudulent scheme concerning a purported Nigerian Army contract.

The second appellant became acquainted with the first respondent, a native doctor who had treated his daughter. After learning that the second appellant had incorporated Gatah (Nig.) Ltd., the first respondent suggested that the company should be registered as a Nigerian Army contractor through his supposed military contacts. The second appellant supplied documents, photographs and N5,000 for that purpose, and the first respondent later produced a purported Army contractor registration certificate.

In 1991, the first respondent represented that a friend, “Colonel Solomon Odiase,” had offered him an Army contract which could be undertaken jointly with the appellants. The second respondent allegedly impersonated the colonel. The appellants relied on the representations, travelled to Lagos, signed documents and paid N55,000 as a first instalment and N200,000 as a further contribution. They also provided company invoice and delivery-note booklets. Later events, including the intervention of purported security officers and the arrest of the respondents, revealed that the alleged contract was fictitious.

The appellants called five witnesses and tendered several documents. The respondents denied the transaction and alleged that the documents were forgeries. The trial court dismissed the claim, holding that the alleged fraud and payments had not been proved beyond reasonable doubt. The appellants appealed on the original omnibus ground that the judgment could not be supported having regard to the facts and circumstances of the case.

Issues

1. Whether the trial Judge properly appraised and evaluated the whole of the oral and documentary evidence.
2. Whether the appellants’ evidence established the fraudulent transaction and the payments made to the respondents beyond reasonable doubt.
3. What was the effect of the amended statement of claim on the issues to be determined at trial.

The Court of Appeal also considered procedural questions concerning the competence of additional grounds of appeal, the formulation of issues, the respondents’ preliminary objection and the proper scope of an omnibus ground alleging that a judgment is against the weight of evidence.

Ratio Decidendi

An issue for determination must arise from a valid ground of appeal. Where additional grounds are filed after the statutory period for appealing has expired, leave must first be obtained; otherwise, those grounds and any issues based on them are incompetent. Where only one ground of appeal exists, parties should not proliferate issues from it. A preliminary objection must also be moved by the party raising it; if it is not moved, it is treated as abandoned.

An omnibus ground complaining that a judgment is against the weight of evidence challenges the totality of the evidence, rather than a specific finding. In such an appeal, the appellate court must independently reconsider the evidence, while recognising that the trial court ordinarily has the primary duty to evaluate evidence and assess credibility. Interference is justified where the findings are unsupported by evidence, perverse, based on a wrong principle of law or procedure, or do not flow from the evidence accepted.

The court further held that a summary or restatement of evidence is not evaluation. Evaluation requires the court to assess the quality and probative value of the evidence, weigh the competing cases on the imaginary scale of justice and determine which side has satisfied the applicable burden of proof.

Court Findings

The Court of Appeal found that the trial Judge had not properly evaluated the evidence. Rather than assessing the testimony of PW1 to PW4 and the documentary exhibits, the Judge resurrected and relied upon the original statement of claim, although it had been amended with leave of court. Once pleadings are amended, the former pleading ceases to define the issues for trial; the amended pleading governs and speaks from the date of the original pleading.

The trial Judge’s doubts about the authenticity of exhibits 3 and 7 were based on speculation. The respondents had called for the original documents in their pleadings, yet when the originals were produced they did not tender the alleged police handwriting report which they had pleaded and relied upon. The respondents’ bare denials did not effectively challenge the detailed evidence of the appellants’ witnesses. The evidence concerning the payments of N55,000 and N200,000 was corroborated by witnesses who were present when the money was handed over, while PW3 identified the second respondent as the supposed colonel.

The Court accepted that an allegation of crime made in civil proceedings must be proved beyond reasonable doubt under section 138 of the Evidence Act. However, “beyond reasonable doubt” does not mean beyond every conceivable doubt or beyond all shadow of doubt. The appellants were required to call material witnesses, not every possible witness. The unchallenged evidence could properly be relied upon, and no fixed number of witnesses was necessary.

Conclusion

The appeal was allowed. The High Court judgment dismissing the appellants’ claim was set aside. Judgment was entered jointly and severally against the respondents for N255,000 in special damages, representing the N55,000 and N200,000 payments, together with N75,000 general damages, making a total of N330,000. The appellants were also awarded N10,000 costs.

Significance

The decision is significant for Nigerian civil procedure and evidence law. It confirms that appellate courts may re-evaluate the record where a trial court has failed to perform its evaluative duty. It also emphasises that amended pleadings replace the earlier pleadings and that courts must decide only the case presented by the parties. The judgment warns against dismissing credible, corroborated testimony through speculation, particularly where the opposing party has failed to challenge material evidence or produce documents expressly pleaded. Finally, it illustrates that a civil claim founded on fraudulent conduct may proceed independently of a pending criminal prosecution, although the heightened standard of proof applicable to the criminal allegation must be satisfied.