CASE OF THE DAY: BURDEN OF PROOF

• Dashboard
• Judgements
• Laws of Federation
• Rules of Court
• State Rules of Court
• Forms and Precedents
• Articles and Journals
• Law Dictionary
• Legal Maxims
• Foreign Resources
• Notes
• Teams
• Chats
• ?Upgrade Package

TB

MBULA TRADITIONAL COUNCIL V. ESTATE OF THE LATE BENJAMIN NWAZUE

Legalpedia Citation: (2022-06) Legalpedia 32509 (CA)

In the Court of Appeal

Holden at Yola

Thu Jun 30, 2022

Suit Number:?CA/YL/142/21

AREA(S) OF LAW

?APPEAL, COUNTER CLAIM, COURT, DAMAGES, JUDGMENT AND ORDER, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The 2nd Respondent is the wife and Administrator of the 1st Respondent’s estate and that while going through the documents of her late husband Benjamin Nwazue, she discovered documents that showed that the Appellants borrowed money from her late husband which had not been paid back and thereafter her Solicitor wrote a demand letter to the Appellants and they still failed to repay the loan. Hence, the Respondents instituted this action before the High Court of Adamawa state, wherein they claimed against the Appellants the Sum of N1,300,000.00 (One Million and Three Hundred Thousand Naira), being money they borrowed from late Benjamin Nwazue on or about August 14, 2017 and which they have failed to repay; the sum of N2,000,000.00 (Two Million Naira), being general damage for breach of contract;10% interest per annum on the judgment sum till full liquidation; and Cost of the action. In response, the Appellants filed their joint statement of Defence and counter claimed against the Respondents; the 2nd Appellant averred that the late Benjamin Nwazue did not give them the loan and before he could retrieve the documents, Benjamin Nwazue passed away. That they have had previous transactions with the late Benjamin Nwazue which the late Benjamin Nwazue would normally give the 2nd Appellant the loan in cash and he would give him in return a postdated cheque, which cheque would normally be used to cash or pay back the loan by the 2nd Appellant. At the close of the trial, the trial court gave judgment in favour of the Respondents and the counter claim of the Appellants failed. The Appellants unhappy with the decision of the trial court has appealed against same vide their Notice of Appeal.

HELD

Appeal Dismissed

ISSUES

Whether by the evidence adduced before the trial court, the Respondents proved their case against the Appellants to warrant the judgment given in their favour and the failure of the counter-claim?

RATIONES DECIDENDI

PROOF – NATURE OF PROOF IN CIVIL CASES – MEANING OF THE BURDEN OF PROOF

In civil cases, proof is based on the balance of probabilities. The procedure for determining where the evidence preponderates was out lined in the case of Mogaji & Ors. Vs. Odofin & Ors (1978) 4 SC 91 at 94. The person who is able to produce preponderance of credible evidence, will have judgment in his favour. See, Daodu Vs. NNPC & ORS (1998) LPELR – 927 (SC) P. 17, PARAS. B-D and Oduola & Ors Vs. Coker & Ors (1981) LPELR – 2254 (SC) PP. 38 – 39, PARAS. G-A. The burden of proof means the burden of adducing evidence, this may shift depending on the preponderance of evidence. It rests on the party who would fail if no evidence at all or more evidence was led on either side, a decision is taken on a balance of probabilities based on preponderance of evidence. See, Sakati Vs. Bako & Anor (2015) LPELR – 24739 (SC) P. 34, PARAS. C – E. -PER C. N. UWA, J.C.A

ONUS OF PROOF – ON WHOM LIES THE ONUS OF PROOF IN CIVIL CASES

The onus was on the Appellants to prove that the previous loan transactions with the late Benjamin Nwazue were paid into the 1st Appellant’s account and that visible authority was given to the 2nd and 3rd Appellants in the past before they collected loans from the late Benjamin Nwazue on behalf of the 1st appellant. He who asserts proves. See, Siwaniku vs. Odufuwa (1969) LPELR – 25495 (SC) PP. 6 – 7, PARAS. D – B and in Sharing Cross Examinational Services Ltd. Vs. Umaru Adamu Enterprises Ltd. & Ors (2020) LPELR – 49567 (SC) PP. 7 – 8, PARAS. F – A his lordship Eko, JSC on assertions held thus:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.”

See, Philips Vs. Eba Odan Commercial & Industrial Co. Ltd. (2013) 1 NWLR (PT. 1336) 618 and Mr. Sunday Okegbe & Ors Vs. Ejighe Akpome & Ors (2013) LPELR – 21969 (CA). -PER C. N. UWA, J.C.A

CASES CITED

STATUTES REFERRED TO

Evidence Act, 2011

OTHER CITATIONS

FULL JUDGEMENT

1. (DELIVERED BY CHIDI NWAOMA UWA, JCA.)
3. The appeal is against the judgment of the High Court of Adamawa state, presided over by Nathan Musa, J (as he then was)?
4. hereafter referred to as the trial court, delivered on 22nd July, 2021. At the trial court, the Respondents as Plaintiffs claimed against the Appellants for the following reliefs:
5. (a)“The Sum of N1,300,000.00 (One Million and Three Hundred Thousand Naira) being money they borrowed from late Benjamin Nwazue on or about August 14, 2017 which they have failed, refused or neglected to repay in spite of persistent demand by Plaintiffs and their Solicitor.
6. (b)The Sum of N2,000,000.00 (Two Million Naira) being general damage for breach of contract.
7. (c)10% interest per annum on the judgment sum till full liquidation.
8. (d)Cost of this action to be estimated at N250,000.”
9. In response, the Appellants filed their joint statement of Defence and counter claimed against the Respondents as follows:
10. (a)“A declaration that the act of the 2nd Respondent holding unto the 1st counter-claimants cheque No. 36261400 and cheque clearance is illegal.
11. (b)The return of the undated cheque No. 36261400 and cheque clearance of the 1st counter-claimers.
12. (c)Perpetual injunction restraining the Respondent, their agents, privies assigns or anybody by whatsoever name call (sic) from using even the photocopy of cheque No. 36261400 and the cheque clearance of the 1st Counter-claimer.
13. (d)The sum of N3,000,000.00 (Three Million Naira) as general damage for holding unto the cheque No. 36261400 and the cheque clearance of the 1st counter-claimer.
14. (e)Cost of the suit to be assess (sic) at N450,000.00 (Four Hundred and Fifty Thousand Naira).”
15. At the trial, the Respondents called a sole witness (2nd Respondent) and tendered seven (7) documents which were admitted in evidence as Exhibits ‘A’, ‘B’, ‘B1’, ‘B2’, ‘C1’, ‘C2’ and ‘D’ respectively. The Appellants also called a sole witness (the 2nd Appellant) and tendered no document.
16. The background facts are that at the trial, the 2nd Respondent testified as PW1, a sole witness who testified to the effect that she is the Administrator of the 1st Respondent’s estate and that while going through the documents of her late husband Benjamin Nwazue, she discovered documents that showed that the Appellants borrowed money from her late husband which had not been paid back. The letter of Administration was admitted in evidence and marked as Exhibit “A”. The Appellants’ application letter for the loan, the Mbula Traditional Council Clearance Cheque and an undated Union Bank Plc. cheque issued in the name of the 2nd Appellant were admitted in evidence as Exhibits ‘B’, ‘B1’ and ‘B2’ respectively. The Respondents’ ‘Solicitors’ demand letter to the Appellants and the Appellants’ solicitors’ response to the demand letter were admitted in evidence as Exhibit ‘C’ and ‘C1’ respectively. The 2nd Respondent’s late husband’s statement of account with first Bank Plc., showing that her husband withdrew the said amount of N1,300,000.00 at the same time the Appellants made the loan application, the statement of account was tendered as Exhibit “D”. The 2nd Respondent’s evidence was said not to have been challenged except that under cross examination the PW1 testified that she knew the 2nd Appellant’s signature because he had collected a loan from her after the death of her late husband.
17. The 2nd Appellant testified as the “DW1” and gave evidence to the effect that he is the secretary to the 1st Appellant and that he has been collecting loans from late Benjamin Nwazue for years. It was made out that the late Benjamin Nwazue did not give loans to corporate organizations and that the Appellants would normally write an application letter on the 1st Appellant’s letter head requesting for a loan and that 2nd Appellant (DW1) and the 3rd Appellant both would sign the clearance cheque, while he the 2nd Appellant would sign the cheque and hand the documents over to late Benjamin Nwazue. It was made out by the 2nd Appellant that the late Benjamin Nwazue did not give them the loan, before he could retrieve the documents, Benjamin Nwazue passed away.
18. The 2nd Appellant made out that the transaction in dispute was not the first transaction, the 1st Appellant had previous transactions with the late Benjamin Nwazue. Also, that the late Benjamin Nwazue would normally give the 2nd Appellant the loan in cash and he would give him in return a postdated cheque. See, page 109 of the printed records of Appeal. The cheque would normally be used to cash or pay back the loan by the 2nd Appellant. The 2nd Appellant gave evidence to the effect that he never approached the 2nd Respondent to retrieve the documents from 2017 when the late Benjamin Nwazue died till date. Further, that all the loan transactions he had with the late Benjamin Nwazue was always in cash and that the transaction that resulted in the present action was in August, 2017 when the first installment was to be paid, as per Exhibit ‘B’, see pages 19 – 110 of the printed records of appeal.?
19. At the close of the trial, the trial court gave judgment in favour of the Respondents and the counter claim of the Appellants failed. The Appellants unhappy with the decision of the trial court appealed to this court. A sole issue was formulated by the Appellants for the determination of the apeal thus:
20. “Whether based on the evidence presented at the trial court, the Respondents have proved their claims to warrant the grant of the reliefs sought before the trial court vis-avis the Appellants’ counter–claim?” (Distilled from grounds 1 & 2.)
21. The Respondents on their part also formulated a sole issue as follows:
22. “Whether the Respondents by the evidence adduced before the trial court, proved their case against the Appellants to warrant the judgment entered in their favour?” (Distilled from Ground 1 of the Notice of Appeal).
23. In arguing the appeal, the learned counsel to the Appellants F. R. Baiyo Esq. relied on his brief of argument filed on 24/1/22, deemed properly filed and served on 8/3/22, learned counsel adopted same as his oral argument in this appeal in urging us to allow the appeal and set aside the judgment of the trial court and grant the counter claim of the Appellants. In arguing his sole issue, it was submitted that the Respondents failed in discharging the burden of proof placed on them by law at the trial court which is preponderance of evidence. It was argued that he who wants the court to give judgment in his/her favour or the existence of some facts must prove that those facts exist, Section 131 of the Evidence Act, 2011. It was submitted that the Respondents asserted that the Appellants collected a loan from the late Benjamin Nwazue on or about 14th August, 2017. The Exhibits tendered and relied upon by the Appellants were highlighted under the background facts above. Exhibits ‘B’, ‘D’ and ‘B2’ were referred to as the most appropriate, Exhibit ‘B’ is an application letter for the alleged loan agreement written on 14th August, 2017, page 19 of the printed records, Exhibit ‘D’ showed a cash withdrawal said to have been the amount loaned to the Appellants, made on 11th August, 2017, page 45 of the records and Exhibit ‘B2’ an undated cheque of the 1st Appellant issued in the name of the 2nd Appellant. It was submitted that the cheque No. 36261400 was issued in the name of the 2nd Appellant not in the name of the late Benjamin Nwazue as claimed by the 2nd Respondent. It was highlighted that the application letter for the loan Exhibit ‘B’ was written three (3) days after the withdrawal of the sum of N1,300,000.00 shown in Exhibit ‘D’ of 11th August, 2017 but, that there was nothing to show who the cash payment was made to with reference to paragraph 7 of the Amended Statement of Claim. It was submitted that the evidence adduced by the Respondents as to the cash payment was inconclusive. See, MAITANMI VS. DADA (2013) ALL FWLR (PT. 682) PAGE 1638, NKRUMAH VS. EBUZOEME (2013) ALL FWLR (PT. 681). It was argued that there was no acknowledgment of receipt of the money and no evidence of the cash payment, transfer or deposit into the account of any of the Appellants. See, OBIDIGWE VS. K.K. C. LTD (2016) ALL FWLR (PT. 815) PAGE 277. It was submitted that there was no issuance of two dated but, dishonoured cheques of N650,000.00 each in the name of Benjamin Nwazue as collateral of the loan as captured in the body of Exhibit ‘B’. It was argued that there was no evidence that any of the Appellants had collected the loan on behalf of the 1st Appellant.
24. It was contended by the learned counsel to the Appellants that the trial court was wrong to have arrived at its decision based on circumstantial evidence. It was argued that from Exhibit ‘B’, without conceding that any money was loaned to the 1st Appellant, the sum of N650,000.00 could have been refunded to the late Benjamin Nwazue before his demise. We were urged to evaluate the evidence before the court as it was not properly done by the trial court; reliance was placed on the case of PROSPER VS. STATE (2016) ALL FWLR (PT. 861) PGS. 1230 - 1231. Further, that the Appellants proved their counter claim while reference was made to Exhibits ‘B’, ‘B1’ and ‘B2’ which emanated from the 1st Appellant and endorsed by the 2nd and 3rd Appellants. It was concluded that the Respondents’ claim is speculative and attracts the award of damages against them.
25. In response, the learned counsel to the Respondents Ruth Gbaa Esq. relied on her brief of argument filed on 1/4/22, as her argument in the appeal in urging us to uphold the decision of the trial court and dismiss the appeal with costs. In arguing her sole issue, it was submitted that the initial burden of proof initially lies on the Plaintiff; the rebuttal of issues in course of proceedings may shift from the Plaintiff to the Defendant and vice-versa. See, FEDERAL MORTGAGE FINANCE LTD VS. EKPO (2004) 2 NWLR (PT. 856) 100. It was submitted that Exhibits ‘B’ – ‘B2’ tendered by the Respondents shows the Appellants’ intention to create a legal contractual relationship with the late Benjamin Nwazue and fulfilled all the requirements to perfect the loan to the effect that Exhibits ‘B’ – ‘B2’ were duly endorsed by the 2nd and 3rd Appellants as secretary and accountant of the 1st Appellant respectively. It was argued that OBIDIGWE VS. K.K.C. LTD (2016) (supra) cited and relied on by the learned counsel to the Appellants is not applicable to the present case. Also, that the cases relied on by the Appellants border on land transactions and not recovery of debt arising from breach of contract and that PROSPER VS. STATE (supra) is a criminal case bordering on armed robbery. It was submitted that the only defence the Appellants had at the trial was their averment in paragraphs 3, 4, 5 and 12 of their joint statement of defence which crumbled under the cross examination of the DW1 which established the Respondents’ case. It was submitted that the 1st Appellant had always collected loans from the late Benjamin Nwazue and that the Appellants failed to prove that in the previous transactions, the loan was paid into the 1st Appellant’s account. Further, that the demand for Exhibits ‘B’ – ‘B2’ was a formality, the Appellants had to fulfill. In countering paragraph 13 of the joint statement of defence of the Appellants, it was contended that the 2nd and 3rd Appellants had always done the leg work on behalf of the 1st Appellant in obtaining the loan, writing, signing and handing over of Exhibits ‘B’ – ‘B2’ on behalf of the 1st Appellant to the late Benjamin Nwazue. Further, that Exhibit ‘D’ relied on by the trial court showed that the late Benjamin Nwazue would normally hand over cash to the borrower before collecting documents as evidence of the transaction. The Appellants’ argument as to the gap in the dates in paragraphs 3.2 – 3.5 of the Appellants’ brief of argument was said to hold no water. Further, that the Appellants in paragraphs 5 and 6 of their joint statement of defence (page 28 of the records) admitted that Exhibits ‘B1’ and ‘B2’ were made in relation to the transaction in dispute cannot – turn around to argue to the contrary. See, UDEORAH VS. NWAKONOBI (2003) 4 NWLR (2003) 4 NWLR (PT. 811) 643 at 674 – 675, PARAS. H-E. On the duty of the Appellant to raise substantive grounds of appeal against specific findings of the lower court, reliance was placed on HERITAGE BANK LTD. VS. BENTWORTH FIN. (NIG.) LTD. (2018) 9 NWLR (PT. 1625) 420 at P. 436, PARAS. B-C.
26. It was submitted that the evidence of the 2nd Respondent to the effect that the loan had not been repayed was unchallenged, page 43 of the compiledrecords. It was contended that the implication is that the Appellants accepted the truth of the matter led in evidence. See, IWUNZE VS. F.R.N. (2013) NWLR (PT. 1334) P. 119. Further, contrary to the agreement of the learned counsel to the Appellants, it was submitted that the trial court properly evaluated the evidence before the trial court, before arriving at its decision. Further, that the Appellants failed to prove that the decision of the trial court is perverse or occasioned a miscarriage of justice. See, F.B.N. PLC. VS. OZOKWERE (2014) 3 NWLR (PT. 1395) 439 at P. 466, PARAS. B-D.
27. On the award of damages, it was submitted that since there was a clear breach of legal duty to the Respondents by the Appellants, the Respondents were naturally entitled to the damages awarded by the trial court. See, E. B. PLC. AWO OMAMMA VS. NWOKORO (2012) NWLR (PT. 1321) PAGE 488 at 515 and YAV VS. DIKWA (2001) 8 NWLR (PT. 714) PAGE 127 at 146 PARAS. F-G.
28. On the award of costs, it was submitted that costs follow events, since the Respondents proved their case at the trial court, they were entitled to costs.
29. In conclusion, on the proof of the Appellants’ counter claim, it was submitted that the sole issue formulated by the Appellants for determination did not arise from any of the Appellants’ grounds of appeal. See, O.M.T.C. LTD. VS. B.V. LTD. (2011) 9 NWLR (PT. 1252) 303 at PG. 310, PARA. B. We were urged to strike out the Appeal as there is no competent issue for determination in the brief of argument filed by the Appellants.
30. I would recouch the sole issue formulated by each of the parties thus:
31. Whether by the evidence adduced before the trial court, the Respondents proved their case against the Appellants to warrant the judgment given in their favour and the failure of the counter-claim?
32. In civil cases, proof is based on the balance of probabilities. The procedure for determining where the evidence preponderates was out lined in the case of MOGAJI & ORS. VS. ODOFIN & ORS (1978) 4 SC 91 at 94. The person who is able to produce preponderance of credible evidence, will have judgment in his favour. See, DAODU VS. NNPC & ORS (1998) LPELR – 927 (SC) P. 17, PARAS. B-D and ODUOLA & ORS VS. COKER & ORS (1981) LPELR – 2254 (SC) PP. 38 – 39, PARAS. G-A. The burden of proof means the burden of adducing evidence, this may shift depending on the preponderance of evidence. It rests on the party who would fail if no evidence at all or more evidence was led on either side, a decision is taken on a balance of probabilities based on preponderance of evidence. See, SAKATI VS. BAKO & ANOR (2015) LPELR – 24739 (SC) P. 34, PARAS. C – E. In discharging the evidential burden of proof, the Respondents tendered the documents earlier highlighted in this judgment. Exhibit ‘B’ is a document titled “Application for a loan of One Million Three Hundred Thousand Naira (N1,300,000.00), Exhibit ‘B’, is a cheque clearance of the 1st Appellant endorsed by the 2nd and 3rd Appellants as Secretary and Accountant of the 1st Appellant respectively, Exhibit ‘B2’ is an undated cheque of One Million Three Hundred Thousand Naira (N1,300,000.00) issued in the name of the 2nd Appellant. These Exhibits created a contractual relationship by the Appellants with the late Benjamin Nwazue in fulfilling the requirements for the loan transaction. The Respondents pleaded how the late Benjamin Nwazue loaned out money in paragraph 8 of the Respondents’ Amended Statement of Claim, page 66 of the printed records as follows:
33. 8. “The plaintiffs aver that the usual procedure of the late Mr. Benjamin Nwazue in business was to obtain the stated documents from people who borrow money from him after he advanced the loan to them, mostly in cash, as in the present case. These documents serve as evidence and collateral at the same time.”
34. As highlighted by the learned counsel to the Respondents, the Appellants in response to the averment above in defence averred in paragraphs 3, 4, 5 and 12 of their joint statement of defence as follows:
35. 3. “That late Benjamin Nwague (sic) told the 2nd Defendant that he (late Benjamin Nwague (sic) doesn’t give loan to corporate organization but to individuals.
36. 4. That after further request, late Benjamin Nwague (sic) agree (sic) that he will oblige them with the loan facilities if they can provide evidence of how he (late Benjamin Nwague (sic) can get his money easily.
37. 5.That both late Benjamin Nwague (sic) and the 2nd Defendant agreed that Mbula Traditional Council shall write an application for loan sign its letterhead paper; sign a sample of cheque and cheque clearance for easy processing of the money when the time is due.
38. 12.That Mbula Traditional Council as a Corporate Institution doesn’t collect loan cash, but through financial institution for proper accountability and so that the council will know where did the money come (sic) from, how much was remitted and how much the remaining balance etc.”
39. Contrary to the Appellants’ defence, their sole witness the DW1 (2nd Appellant) in his testimony under cross examination testified at pages 109 – 110 as follows:
40. “We have been doing business with 1st Plaintiff for a long time. After the death of 1st Plaintiff I have continued doing business with his wife.
41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………..
42. I have been borrowing money from 1st Plaintiff for three years before he died. The 1st Plaintiff always gives one the loan in cash. I give him postdated cheque as collateral.
43. It is true that it is the cheque given to 1st Plaintiff that is cashed by 1st Plaintiff. It is true that the 1st and 2nd Defendants have been having transaction with 1st Plaintiff.
44. I never explain this present transaction to wife of late Benjamin because she never asked me about this transaction.
45. This particular transaction took place in August 2017 1st installment payment on August 2017.”
46. From the above evidence of the DW1, the late Benjamin Nwazue had been transacting with the Appellants for long before his demise, which the Appellants continued with his wife the 2nd Respondent (PW1) after the death of her late husband. The DW1 testified to the effect that he would normally collect the loan in cash while he gives a post-dated cheque as collateral. The Appellants did not prove that the previous loans were paid into an account belonging to the 1st Appellant or anybody else as to expect the loan that led to the present case to have been paid into an account and were wrong to have pleaded in paragraph 13 of their joint statement of defence thus:
47. 13.“That Mr. Benjamin Nwague (sic) has never transferred money into the account of Mbula Traditional Council nor has he ever given any cash to anybody to be giving (sic) to Mbula Traditional Council as nobody has the authority to collect cash on behalf of Mbula Traditional Council.”
48. The onus was on the Appellants to prove that the previous loan transactions with the late Benjamin Nwazue were paid into the 1st Appellant’s account and that visible authority was given to the 2nd and 3rd Appellants in the past before they collected loans from the late Benjamin Nwazue on behalf of the 1st appellant. He who asserts proves. See, SIWANIKU VS. ODUFUWA (1969) LPELR – 25495 (SC) PP. 6 – 7, PARAS. D – B and in SHARING CROSS EXAMINATIONAL SERVICES LTD. VS. UMARU ADAMU ENTERPRISES LTD. & ORS (2020) LPELR – 49567 (SC) PP. 7 – 8, PARAS. F – A his lordship Eko, JSC on assertions held thus:
49. “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.”
50. See, PHILIPS VS. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD. (2013) 1 NWLR (PT. 1336) 618 and MR. SUNDAY OKEGBE & ORS VS. EJIGHE AKPOME & ORS (2013) LPELR – 21969 (CA). There was nothing on record to show that the 2nd and 3rd Appellants were usually given visible authority by the 1st appellant before they could transact for the previous loans except through the likeness of Exhibits ‘B’ – ‘B2” on behalf of the 1st Appellant as averred by the Appellant’s jointly and in line with the testimony of the DW1 under cross examination, pages 109 – 110 of the printed records of appeal to the effect that the 2nd Appellant would normally collect the loan in cash and would give the late Benjamin Nwazue a post-dated cheque as collateral.
51. I am at one with the learned counsel to the Respondents’ argument that Exhibit ‘D’ the statement of account from First Bank Plc which the trial court relied on showed the withdrawal of N1,300,000.00 on 11/8/17, which preceded Exhibits ‘B’ – ‘B2’, which was in line with the late Benjamin Nwazue’s habit of handing over the cash loans to the borrower before collecting documents evidencing the transaction. The Appellants cannot rightly argue that Exhibits ‘B1’ – ‘B2’ had nothing to do with the late Benjamin Nwazue when in paragraphs 5 and 6 of their joint statement of defence at page 28 of the printed records admitted that Exhibits ‘B1’ and ‘B2’ were made in relation to the transaction in dispute. In paragraphs 5 and 6 of the Appellants’ joint statement of defence, it was pleaded thus:
52. 5.“That both late Benjamin Nwazue and the 2nd defendant agreed that Mbula Traditional Council shall write an application for loan on its letterheaded paper, sign a sample of cheque and cheque clearance for easy processing of the money when the time is due.
53. 6.That the 2nd defendant met the 3rd defendant to oblige him with the copy of cheque and cheque clearance so that he can show late Benjamin Nwague (sic) as the council is planning to collect loan from him.”
54. From the above paragraphs 5 and 6, it is clear that the Appellants have admitted the loan transaction and cannot deny that Exhibits ‘B1’ and ‘B2’ have no connection with late Benjamin Nwazue. The law is that facts admitted need no further proof. See, MBA VS. MBA (2018) LPELR – 44295 (SC) PP. 24 – 25, PARAS. F - E, SOLANA VS. OLUSANYA & ORS (1975) LPELR – 3097 (SC) P. 10, PARAS. A – B and MOZIE & ORS VS. MBAMALU & ORS (2006) 12 SCM (PT. 1) 306 at 317. It is the law that whatever fact is admitted needs no further proof, such fact is deemed established. Any admitted facts, or fact not disputed or not specifically denied, need no further proof and will be deemed established. I hold that Exhibits ‘B’, ‘B1’ and ‘B2” examined with the Appellants’ pleadings in their paragraphs 5 and 6 of their statement of defence established clearly that there was a loan transaction between the 1st Appellant and the late Benjamin Nwazue.
55. The sole witness to the Respondents was the 2nd Respondent who testified as the PW1, whose evidence was unchallenged as to the fact that the 1st Appellant had obtained a loan of N1,300,000.00 through the 2nd and 3rd appellant which had not been repayed. The evidence of the PW1 was not shaken under Cross Examination, page 43 of the printed records of appeal. The court is enjoined to act on unchallenged evidence. See, OMOREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D, MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C and GOYANG KAYILI VS. ESLY YILBUK & ORS (2015) LPELR – 24323 (SC) P. 36, PARA. A. Where evidence given by a party (as in this case) to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it. The trial court was right to have acted on the unchallenged evidence of the PW1. At pages 109 – 110 of the printed records, the sole witness of the Appellants, the 2nd Appellant testified as the DW1 and gave details of his loan transactions on behalf of the 1st Appellant with the late Benjamin Nwazue before his demise and continued with the 2nd Respondent (PW1). The DW1 acknowledged the transaction in question to have taken place in August, 2017. The evidence of the DW1 clearly established the Respondent’s case. The DW1 also confirmed that the loans were usually given out in cash by the late husband of the 2nd Respondent. The trial court was also right to have acted on the evidence of the DW1.
56. The Appellants had alleged that the trial court did not properly evaluate the evidence before it and that the decision of the trial court is perverse. In my earlier decision in ADINGARWA & ORS VS. ASSANDARIYU (2021) LPELR – 54645 (CA) PP. 29 – 30, PARAS. E – C, I defined a perverse finding or decision thus:
57. “The question is : what is a perverse decision? A perverse decision was defined by the Apex Court in ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360, where his lordship Oputa, JSC held thus: “Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial judge took into account, matters, which he ought not to have taken into account or where the judge shuts his eyes to the obvious.” See also, UDENGWU VS. UZUEGBU & ORS (2003) 13 NWLR (PT. 836) 136, ADIMOPA VS. AJUFO (1988) 3 NWLR (PT. 80) 1 and MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 (SC).”
58. A perverse decision is arrived at where the court draws the wrong inference from the evidence before the court thereby occasioning a miscarriage of justice. There is nothing in the judgment of the trial court that shows the trial court drew the wrong inference from the evidence before it and arrived at a wrong decision occasioning a miscarriage of justice. There is also nothing to show that the trial court took into consideration of things it ought not to have taken into account. See, IYAWE VS. ERIYO (2022) LPELR – 57139 (CA) and IKEMBA VS. PYRAMMIDI COMPANY MIGERIA LTD (2021) 6 LPELR – 56145 (CA) P. 33, PARAS. C – E. There is nothing to show that the decision of the trial court is perverse and occasioned a miscarriage of justice. I hold that the trial court properly evaluated the evidence before the court.
59. The learned counsel to the Appellants alleged that there was no basis for the trial court to have awarded the sum of N200,000.00 (Two Hundred Thousand Naira) as general damages to the Respondents. General damages are awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded; it is enough if it is averred. They are presumed to be the direct and probable consequence of that complained of. A claim for damages could arise if there is a breach of any legal duty to the claimant. Damages are compensation in money given to a successful plaintiff as a compensation for loss or harm. There is no hard and fast rule about the quantum but, the assessment is that of a reasonable man on the street, the inconvenience suffered and the surrounding circumstances of the particular case would be taken into consideration. The quantum of damages need not be pleaded or proved, it flows from the defendant’s act. See, GTB VS. FOCUSED EXPERIENTIAL MARKETING LTD (2021) LPELR – 53188 (CA) P. 51, PARAS. A – E, ACCESS BANK PLC VS. NIMA SALMAN MANN (2021) LPELR – 52896 (CA) P. 21, PARAS. A – E, COSHARIS GROUP (NIG) LTD & ANOR VS. ONIGBO (2021) LPELR – 53350 (CA) PP. 17 – 18, PARAS. E – A and ALLASURE VS. ODEZEH (2021) LPELR – 53531 (CA) P. 14, PARAS. B – D. I hold that the trial court was right to have awarded the general damages in favour of the Respondents.
60. On the award of costs in favour of the Respondents, it is trite that costs follow events. The Respondents having successfully prosecuted their matter at the trial court were entitled to costs. In NNPC VS. CLIFCO NIG. LTD (2011) LPELR – 2022 (SC) P. 23, PARAS. D – A, his lordship Rhodes – Vivour, JSC summed up the essence of the award of costs thus:
61. “The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See ANYAEGBUNAM VS. OSAKA (1993) 5 NWLR (PT. 294) P. 449, OBAYAGBONA VS. OBAZEE 1972 5 SC P. 247.”
62. See, OJIEGBE & ANOR VS. UBANI 7 ANOR (1961) LPELR – 25060 (SC) P. 6, PARA. F and AKINBOBOLA VS. PLISSON FISKO NIGERIA LIMITED & ORS (1991) LPELR – 343 (SC) P. 8, PARAS. B – C. I hold that the cost awarded in favour of the Respondents by the trial court was not out of place.
63. On the Appellants’ counter claim, a counter claim is a fresh and independent claim; the burden of proving same is on the counter claimant. It is a distinct action from the main claim. In OGBONNA VS. AG OF IMO STATE & ORS (1992) LPELR – 2287 (SC) P. 33, PARAS. B – G his lordship Nnaemeka – Agu, JSC defined a counter claim thus:
64. “………. I believe it has been settled by several decided cases that a counter – claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a court so grants leave. Indeed, not only can a defendant apply for summary judgment on his counter claim but, also a plaintiff may counter claim on defendant’s counter claim. (See, RENTON GIBBS & CO. VS. NEVILLE (1990) 2 Q. B 818).”
65. See, OROJA & ORS VS. ADENIYI & ORS (2017) LPELR – 41985 (SC) PP. 11 – 13, PARAS. E – B and LOKPOBIRI VS. OGOLA 7 ORS (2015) LPELR – 40838 (SC) PP. 64 – 65, PARAS. E – A. A counter claim from its definition is like a cross action and not a defence, therefore it must be proved on its own in the same way as the claim that has to be proved on its merits. See my earlier decisions in ULLAM & ORS VS. USMAN (2019) LPELR – 48917 (CA) PP. 15 – 16, PARAS. F – D and BUSARI & ANOR VS. KASANDUBU & ANOR (2016) LPELR – 45671 (CA) PP. 24 – 25, PARAS. E – B. In the present appeal, the appellants who counter claimed made no effort at all to lead evidence in respect of their counter claim, talkless proof of same. I hold that the counter claim was not proved.
66. In the final analysis, the sole issue as reformulated is resolved against the Appellants. I hold that the Appeal is without merit; I dismiss it in its entirety and affirm the judgment of the trial court.I award costs of N100,000.00 (One Hundred Thousand Naira) against the Appellants.
73. FATMA OMORO AKINBAMI, JCA
75. I have had a review of the judgment of my learned brother, Chidi Nwaoma Uwa, JCA, and am in agreement that this appeal lacks merit. The trial Court has painstakingly evaluated the evidence before it, before coming to its conclusion.
77. It is a settled principle of law that, where a trial court has carried out its assignment satisfactorily, an appeal court shall be left with no option but to affirm such a decision. See, Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v. Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC.
78. I also dismiss this appeal and affirm the decision (Judgment) of the trial.
79. I abide the order on costs.
84. JAMILU YAMMAMA TUKUR
86. I had the privilege to read in advance the draft copy of the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA, JCA. My lord has exhaustively dealt with the issues contained in the lead judgment and I am in agreement with the decision arrived at, dismissing the appeal in its entirety and affirming the decision of the lower court.
87. I abide by the Orders in the lead judgment including the Order as to costs.

COUNSEL

F.R. Baiyo Esq. for the Appellants.

Ruth Gbaa Esq. with P.R. Ajumebor Esq. for the Respondents.