CASE TITLE: MATRIX ENERGY LTD v. ISA & ORS (2024) LPELR-62150(CA)
JUDGMENT DATE: 24TH APRIL, 2024
JUSTICES: ALI ABUBAKAR BABANDI GUMEL
UGOCHUKWU ANTHONY OGAKWU
MOHAMMED DANJUMA
DIVISION: GOMBE
PRACTICE AREA: COMPANY LAW
FACTS:
This appeal borders on Order of Dismissal.
This appeal emanated from the judgment of the High Court of Gombe State.
The 1st Respondent was a branch manager of the Appellant in Gombe Matrix Filling Station and as a condition precedent for employment of the 1st Respondent, the 2nd and 3rd Respondents served as guarantors to the 1st Respondent.
The 1st Respondent was dismissed from the employment of the Appellant upon an audit report to which the 1st Respondent was not a party, which alleged that the sum of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00k) was embezzled and deposit slips forged.
The Appellant as Plaintiff before the trial Court filed an action before the trial Court claiming against the Respondents jointly and severally as follows:
i. The sum of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00k) being the amount embezzled by the 1st defendant during his employment with the Plaintiff as manager Gombe 2 filling station.
ii. Nineteen percent (19%) interest on the said sum of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00k) from the 3rd day of March 2021 till the final judgment in this suit and thereafter ten percent (10%) interest till the final liquidation of the judgment sum.
iii. Two Million Naira (N2,000,000.00k) general damages.
iv. Cost of this action and solicitors’ fees.
v. Any other order as this Honourable Court may deem fit to make in the circumstances.
At the conclusion of the trial, the claim of the Plaintiff was dismissed, hence this appeal.
ISSUES:
The Court considered the following issues:
1. “Whether the trial Court rightly evaluated the evidence adduced before it in arriving at its decision.”
2. “Whether, having regard to the facts, circumstances and evidence before the trial Court, the Appellant has proved its entitlement to the judgment for the sum of Six Million, Eight Hundred and Eight Thousand, Eight Hundred and Sixty-Three Naira (N6,808,863.00k) against the Respondents jointly and severally.”
3. “Whether the refusal of the Appellant’s claim by the trial Court amounts to non-suit.”
COUNSEL SUBMISSIONS:
Learned counsel to the Appellant, Mr. U. B. Darazo, Esq., opined that the trial Court did not properly and rightly evaluate the evidence placed before the Court in arriving at its decision refusing the claim of the Appellant. Counsel to the Appellant submitted that it was wrong for the trial Court to rely on Exhibit 1 (the audit report) alone instead of the totality of evidence adduced before it. He cited the case of EBELE V. WIZOR (2021) 2 NWLR PT. 1761 PG. 558 AT 589 PARAS. B-E, where this Honourable Court held that:
“Evaluation of evidence involves reviewing and appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. Evaluation of evidence is mainly the function of the trial Court to evaluate the evidence adduced before it.
Learned counsel to the Appellant contended that contrary to the position of law, the trial Court did not even do as much as weigh the testimony of PW1 together with the document PW1 tendered, which was admitted in evidence as Exhibit 1-5. Instead, the trial Court based its evaluation solely on Exhibit 1 to arrive at its decision.
It was submitted that Exhibit 1 is only one of the five exhibits tendered and admitted in evidence by the trial Court. The evidence of PW1 and DW1 was not properly evaluated. That, if the trial Court had properly evaluated the entire evidence adduced, the judgment would have been different and in favour of the Appellant.
After traversing the 1st Respondent’s witness statement on oath (at pages 30-31 of the record), the 1st Respondent’s response to cross-examination question (at page 78 of the record) and DW1’s response during cross-examination, learned counsel to the Appellant argued that had the trial Court evaluated these pieces of evidence and considered them along with the evidence of PW1 and Exhibits 2, 3, 4 and 5, the judgment would have been different and would be in favour of the Appellant.
Learned counsel to the Respondents, argued that it is a settled principle that evaluation of evidence is the sole duty of the trial Court and the same can only be interfered with when shown to be perverse. He commends the case of OTUU v. AGHA & ORS (2020) LPELR-51941 (CA).
Disputing the contention of the Appellant in paragraphs 4.2 and 4.3 of their Brief of Argument to the effect that the lower placed reliance on only exhibit 1 to reach its decision and not on the totality of the evidence adduced at trial, learned counsel to the Respondent stated that posture is a departure from our jurisprudence principle that he who asserts must prove.
It was submitted that PW1 Rasheed Tanimowo, a senior auditor with the Appellant company residing in Lagos, adopted his written deposition contained on page 67 of the record and further tendered Exhibit 1-5. Exhibit 1 is an audit report dated March 3, 2021 and formed the basis upon which the Plaintiff’s claim was founded at the trial Court. That the trial, after examining the said Exhibit 1, found that the 1st Respondent did not participate in the internal inquiry of Matrix Energy Ltd. Arguing that such is disapproved of by the law, counsel cited the case of ASIKPO v. ACCESS BANK (2015) LPELR-25845 (CA), where it was held that:
“An audit report that is made without opportunity given for proper input from the other party affected by it cannot be countenanced as such. See also Adigun v. A. G. of Oyo State (1987) 3 SC 250. Liability cannot be laid at the feet of a party based on the result of an exercise commissioned by the other party that did not admit or take account of his input. No weight can therefore be attached to the said audit report.” Per OTISI, JCA (PP. 31-31 Paras. C-E).
Learned counsel to the Respondents further referenced the case of ASSENE (NIG) LTD v. MIVERO PHARMA LTD & ANOR (2021) LPELR-56247 (CA) and argued that Exhibit 1 was meticulously evaluated by the trial Court. The second piece of evidence which Appellant relied upon in an attempt to prove its case was Exhibit 2 which is a photocopy of tellers that the Appellant through its sole witness sought to prove that they were fake and forged by the 1st Respondent.
DECISION/HELD:
In the final analysis, the appeal was dismissed.
RATIO:
COMPANY LAW – AUDIT REPORT: Effect of an audit report given without proper input from the other party
“Exhibit 1 formed the basis of the allegation of embezzlement against the 1st Respondent. However, the 1st Respondent was not a participant in the audit process. This sort of attempt to shave a man’s head in his absence is scorned at in ASIKPO v. ACCESS BANK (2015) LPELR-25845 (CA), thus: “An audit report that is made without opportunity given for proper input from the other party affected by it cannot be countenanced as such. See also Adigun v. A. G. of Oyo State (1987) 3 SC 250. Liability cannot be laid at the feet of a party based on the result of an exercise commissioned by the other party that did not admit or take account of his input. No weight can therefore be attached to the said audit report.” Per ONYEKACHI AJA OTISI, JCA (PP. 31-31, Paras. C-E). See also the cases of ASSENE (NIG) LTD v. MIVERO PHARMA LTD & ANOR (2021) LPELR-56247 (CA) and GANIYU OGUNLEYE & ANOR v. IGP & ORS, CA/A/377C/2009 (unreported), delivered on 24th April, 2012. Having dealt with Exhibit 1, I will now examine Exhibit 2.” Per DANJUMA, J.C.A.
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