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  • Fari v. Federal Mortgage Finance Ltd
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  • 2004-11-29
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Fari v. Federal Mortgage Finance Ltd

MRS. RAKIYAHABU FARI

V

FEDERAL MORTGAGE FINANCE LTD.

COURT OF APPEAL

( JOS DIVISION )

ALOMA M. MUKHTAR, JCA ( Presided and Read the Lead Judgment )

AMIRU SANUSI, JCA

IKECHI FRANCIS OGBUAGU, JCA

CA/J/116/98

MONDAY, 8TH MARCH, 2004

APPEAL - Re-evaluation of evidence - Power of Court of Appeal to do

COURT - Credibility or otherwise of a witness - Prerogative of trial court to determine

COURT - Duty on to do substantive justice and ignore mere technicalities

DOCUMENT - Signatory to - Bindingness on

EVIDENCE - Admissibility of evidence - Adverse statements made by party to a civil proceeding - Admissibility of against maker to prove truth of the statement

EVIDENCE - Admission of facts raised in another’s pleadings Determination of - Need to be based on careful consideration of the entire pleadings

EVIDENCE - Credibility or otherwise of a witness - Prerogative of trial court to determine


EVIDENCE - Pleadings constituting evidence - Impropriety of

EVIDENCE - Re-evaluation of evidence - Power of Court of Appeal to do

EVIDENCE - Unchallenged evidence - Effect of

JUDGMENT AND ORDERS - Interests on judgment - Award of interests which ante-date judgment - Impropriety of

PLEADINGS - Determination of a case on pleadings alone - Impropriety of - Exception to

PLEADINGS - Pleadings constituting evidence - Impropriety of

PLEADINGS - Pleadings of evidence rather than facts - Impropriety of

PRACTICE AND PROCEDURE - Determination of a case on pleadings alone - Impropriety of - Exception to

TORT - Negligence - Conditions necessary to properly maintain

Issues:

1.              Whether the learned trial Judge was right when he held that the appellant admitted that there was a cash shortage at the respondent’s Cash Savings Centre.

2.              Whether having regard to the state of pleadings, negligence, connivance and collusion were live issues to justify finding the appellant liable in negligence, connivance and collusion.

3.              Whether the learned trial Judge was right when he found the appellant liable for misappropriation notwithstanding that the respondent did not plead material facts of misappropriation.

4.              Whether the respondent discharged the onus of proof required in an allegation of crime in a civil matter.

5.              Whether the award of 21% interest on the judgment sum by the learned trial Judge is maintainable in law.

6.              Whether the learned trial Judge was right when he entered judgment for the respondent on sufficient, conflicting and contradictory evidence.

Facts:

The appellant was an employee of the respondent. She along with another employee, (2nd defendant at the trial court) were accused of misappropriating the sum of N2,710,118 of their employer. After full investigations by the police and prosecutions for the alleged crime, they were dismissed from the employ of the respondent. They however refused to refund the misappropriated funds. The respondent filed an action at the High Court claiming against the appellant and three others (one of whom was the husband of the appellant), a refund of the converted funds, interest on the sum at 21% per annum from the date of conversion to the date of judgment and 10% thereafter till judgment sum is liquidated; a surrender of all properties bought with the appropriated money and the cost of the action. The trial court upheld the claim of the respondent and awarded interest at the rate of 21% per annum from the date of conversion to the date of judgment.

Dissatisfied, the appellant (who was the 1st defendant at the trial court) appealed to the Court of Appeal.