MR. MICHAEL D. LAMU v. HON. NANPON T. BONGDEN (2017)

MR. MICHAEL D. LAMU v. HON. NANPON T. BONGDEN

(2017)LCN/10171(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of July, 2017

CA/J/344/2016

RATIO

BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN A CIVIL PROCEEDING; THE POSITION OF THE LAW ON THE TWO ASPECTS OF BURDEN OF PROOF IN CIVIL PROCEEDINGS

Section 133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading.”

It is therefore suffice to say that in civil cases, the phrase. Burden of proof” has two distinct connotations. The first is that it may mean the burden of proof as a matter of law and pleadings. This is called the legal burden. See Kala v Potiskum (1998) 3 NWLR (Pt. 540) 1. The first condition has been satisfied by both parties in that pleadings were settled and the matter was instituted in compliance with the law. The second aspect is the burden of proof which would come by way of evidence. This is what is referred to as Evidential Burden – See the cases of Ezemba v Ibeneme (2004) 7 SC (Pt. 1) 45; Daodu v NNPC (1998) 2 NWLR (pt. 538),Itauma v Akpe Ime (2000) 7 SC (pt. 11) 24; Audu v Guta (2004) 4 NWLR (Pt. 864) 469 and Mani v Shanono (2006) 4 NWLR (Pt. 969) 132. PER FATIMA OMORO AKINBAMI, J.C.A.

BURDEN OF PROOF: INSTANCES WHERE THE BURDEN OF PROOF WILL SHIFT FROM THE PLAINTIFF TO THE DEFENDANT

LOCUS STANDI: NATURE OF LOCUS STANDI

In the case of Ijelu v LSDPC & Ors (1992) 9 NWLR (Pt. 266) 414 at 423 the Court held in paragraph D as follows:

“Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent to justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.” PER FATIMA OMORO AKINBAMI, J.C.A.

TERMS OF SETTLEMENT: WHETHER TERMS OF SETTLEMENT PARTIES ARE BOUND BY THEIR AGREEMENT

“Terms of settlement” parties are bound by agreement freely entered into by them. See the case of Okonkwo v CCB (Nig.) Plc (2003) 8 NWLR (pt. 822) page 382. The Court would not hesitate to give force of law to such agreement. See the case of U.B.N Ltd v Ozigi (1994) 3 NWLR (pt 339) 385 and Amede v UBA (2006) 8 NWLR (PT 1090) 623 at 659 -660. PER FATIMA OMORO AKINBAMI, J.C.A.

JUSTICE

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

MR. MICHAEL D. LAMUAppellant(s)

AND

HON. NANPON T. BONGDENRespondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The Respondent by an order of the High Court, Jos, Plateau State dated 16-07-2015 took out a Writ of Summons against the Appellant under the Undefended List where the claim of the Respondent against the Appellant is for the sum of N1,711,000.00 with 10% interest on the Judgment sum per annum from date of Judgment until final liquidation. Upon service on the Appellant, he filed a notice of intention to defend. The Court thereafter considered the Appellants’ process and ruled in his favour, on 18-09-2015. Subsequently, the matter was transferred to the general cause list for hearing. Parties were ordered to file pleadings.

The Respondent filed a 31 paragraph Statement of Claim while the Appellant denying liability filed a Statement of Defence of 17 paragraphs. The Respondent filed a 3 paragraph Rely to the statement of Defence. In proof of his claim, the Respondent testified and called four witnesses and tendered some Exhibits. The Defendant testified in his own defence and tendered some Exhibits. After trial, in a well considered Judgment Justice C.L. Dabup, learned

trial judge entered judgment in favour of the Respondent (then plaintiff) in the sum of N1,711,000 with 10% interest on the Judgment sum per annum from date of Judgment until final liquidation.

The facts forming the background of this appeal are that the Appellant, Respondent and one Joshua Kromde engaged in an automobile business as partners which went sour. To settle their dispute, Joshua Kromde who lives in Germany came down to Nigeria. The meeting held at the residence of Hon. Yakubu Choji. All the parties were present. The Appellant and Mr. Joshua Kromde attended the meeting with their learned counsel. At the end of the meeting, the rights and obligations of each party were drawn out. Counsel to Joshua Kromde (PW4) was mandated to draw up the Terms of Settlement for the parties to sign. The Terms of Settlement was duly signed by the parties. Pursuant to the Terms of Settlement, Mr. Joshua Kromde was to make some payments to the Appellant and the Respondent. Mr. Joshua Kromde did in fact make some payments to the Appellant as seen in Exhibit P7 and another payment to the Respondent as seen in Exhibit 7, but the Appellant did not make corresponding

payment to the Respondent. The Appellant kept on giving excuse that Mr. Joshua Kromde had not paid him therefore he could not pay the Respondent, until the lies of the appellant was discovered. This led to the Respondent writing a demand letter to the Appellant. In his reply, the Appellant did not raise any issue, but only said that the Terms of Settlement had some mistakes which he would want a meeting to be held to sort same out, but the Appellant refused to pay the Respondent as seen in his further letter. This suit was filed consequently. For the first time the Appellant raised fraud in his notice of intention to defend. The learned trial Judge transferred the suit to the general cause list, but the appellant failed to plead the issue of fraud. Appellant argued that he had discharged his obligations to the Respondent. At the end of trial, the trial learned Judge entered Judgment in favour of the Respondent.

Aggrieved by the Judgment of the trial Court, the Appellant has appealed to this Court by a Notice of appeal filed on 26th October, 2016 containing seven grounds of appeal, subsequently amended on the 20-02-2017 by order of Court. In the

Appellant’s brief settled by K.D. Damulak Esq., dated 16th day of December, 2016 filed on the 20-12-2016 but deemed filed on 20-02-2017, four issues are formulated from the seven grounds of appeal. The issues are:
1. Whether the defendant was not entitled to the defence of agency in view of Section 209 and Paragraph 2(b) of Part I of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) if the plaintiff could enforce an agreement based on a contract for buying and selling of cars against the defendant in view of the same provision (Grounds 3 and 4).
2. Whether the plaintiff was entitled to Exhibit P1 and thus had locus standi to sue (grounds 1 and 2).
3. Whether or not there are infractions in Exhibit P1 (grounds 5 and 7).
4. Whether the learned trial Judge was right in relying on Order 25 Rules 6 (1) and (13) of the Plateau state High Court (Civil Procedure) Rules to determine the suit (ground 6).

In his Reply, N.I. Darong Esq., of counsel for the respondent, in his brief of argument dated and filed on the 16th day of March 2017, formulated two issues for the Court’s determination of this

appeal:
1. Whether Exhibit P1″ is a valid and subsisting document to entitle the respondent to enforce it against the appellant who has been shown to have benefitted from same. (Grounds 2, 3, 4, 5, 6 and 7 of the amended notice of appeal).
2. Whether the appellant can set up a different case on appeal from the case that was tried at the lower Court. (Ground 1 of the amended notice of appeal).

Let me quickly put on record that on the 24-05-2017 when the appeal was heard, Mr. K.D. Damulak Esq., represented the Appellant while Mr. K.D. Darong Esq., and Mr. I.O Onah Esq., represented the Respondent.

The Appellant’s counsel adopted and relied on the arguments in his Brief in urging the Court to allow the appeal, Respondents counsel adopted his Brief and urged the Court to dismiss the appeal.

It appears to me that what is in issue in this appeal is whether the Terms of settlement signed by the parties, Exhibit P1 is a valid binding agreement enforceable in law by any of the parties.

The four issues formulated by the Appellant proliferate. I will therefore be guided by the issues formulated by the Respondent in the

determination of this appeal.
ISSUE 1
“1. Whether Exhibit ‘P1’ is a valid and subsisting document to entitle the respondent to enforce it against the appellant who has been shown to have benefitted from same.
ISSUE 2
2. Whether the appellant can set up a different case on appeal from the case that was tried at the lower Court”.

K.D Damulak Appellant’s learned counsel in arguing his Issue 1 premised his argument on agency. He referred to Appellants written address before the lower Court, where the Appellant countered Respondent’s contention; Appellant attacked the holding of the lower Court on Appellant being an Agent of the PW4. I must put it on record, that the Appellant did not produce his e-mail appointing him an agent of PW4, before the trial Court. I agree with the learned trial Judge that such an e-mail does not exist, in that if it exists, the Appellant would have produced same before the Court. The Appellant having not produced the supporting document i.e the e-mail of appointment as agent, he is not entitled to the defence of agency as far as the business of buying and selling of cars was concerned. I must state that the

holding of the learned trial Judge is unassailable standi to sue.
“The second issue whether the plaintiff was entitled to Exhibit P1, and thus had locus standi to sue.”

It was argued by Appellant that the Respondent had not proved his case, therefore the Appellants denial succeeds. The argument of the Appellant is that, there was never any business relationship especially an agreement for the business of buying and selling of cars between the Respondent, the Appellant and Joshua Kromde, rather, that the Appellant had always acted as an agent of Joshua Kromde.

It was further argued by Appellant that the Respondent ought not to have signed Exhibit “P1” in his personal name in that the plaintiff/respondent is a separate legal entity from Mambol (Nig.) Brothers Ltd.

In his further attack of Exhibit “P1”, Appellant submitted that Exhibit “P1 was not the primary document as it is predicated on an earlier existing agreement. That it is that agreement that was sought to be enforced by Exhibit P1”.

Issue 3 “whether or not there was infraction in Exhibit P1.

It was submitted by Appellant that the

inability of the trial Judge to see the infractions complained of by the Appellant on Exhibit P1” enables this Court to invoke the provisions of Section 15 the Court of Appeal Act, 2011 and evaluate Exhibit “P1 in view of the pleadings and evidence of the Defendant/Appellant and find that Exhibit “P1” has infractions. Appellant submitted that because of the conflicts between paragraphs 1-4 and 5-10 of Exhibit P1, oral evidence is admissible to prove that there was no business relationship between the plaintiff/Respondent and Defendant/Appellant for the buying and selling of cars, that the Plaintiff/Respondent never paid any money to the Defendant/Appellant, that there was no agreement to borrow and jointly pay interest on a loan from any bank. That the Defendant/Appellant was not owing the plaintiff/Respondent any amount of money prior to Exhibit “P1.

The finding of the learned trial Judge was attacked by Appellant i.e, finding that the pleading and evidence of Plaintiff/Respondent attest to what happened before Exhibit “P1 was made, was not supported by the pleadings and evidence on the records of the Court. He

urged this Court to reverse the finding. He cited the case of Bamgbegbin v Oriare (2009) ALL FWLR (PART 484) 1460 at 1479.

It was submitted by Appellant that, it was this inability to see the infractions complained of that made the Court not to evaluate the evidence in support of the pleadings of the defendant on the issue. That this is an appropriate situation for this Court to evaluate such evidence and make a finding. See Nwaukoni v Bielonwu (2009) ALL FWLR (PART 471) 962 at 979. Appellant urged this Court to invoke Section 15 of the Court of Appeal Act.

On Issue 4, Appellant submitted that the notice of intention to defend is not a defence and cannot be considered in the Judgment. It’s function is only to help the Court decide whether there is a defence on the merit and allow the defendant to defend same on the merit, by ordering for pleadings. See case of Amede v United for Africa (2009) ALL FWLR (PART 469 479 at 515. Order 25 Rule 6(1) of the Plateau State High Court (Civil Procedure) Rules 1987.

Appellant submitted further that the case of the Defendant/Appellant ought to have been determined on the basis of his extant Statement of

Defence and not on the notice of intention to defend, after pleadings were ordered and exchanged and upon which evidence and submissions were made.

In his Reply, N.I. Darong the Respondent’s counsel submitted that in civil matters, the burden of prove lies on the party who asserts the existence or non-existence of particular facts. This burden is on a balance of probabilities. Section 133(1) of the Evidence Act. That the party on whom the burden lies on, succeeds on the strength of his own case and not on the weakness of the defence, although there are circumstances in which the weakness of the defence can aid the plaintiff’s case. Parties are settled on Exhibit P1” being the foundation of Exhibits P7 and P9.

Respondent submitted that ordinarily, a suit is placed on the undefended list when the affidavit supporting the motion ex-parte shows that the claim is for a liquidated money demand, and that to the best of the plaintiff’s knowledge and believe the defendant has no defence to the suit.

It was argued by Respondent that since the Appellant raised the issue of fraud as seen in Exhibit p3, the burden of proof is on him to prove same and

this burden is not discharged on a balance of probabilities, but is discharged when it is proved beyond reasonable doubt. That where, as in this present case, there is an allegation of fraud, mistakes and omissions in a civil matter, the law is that the allegation of crime must be specifically pleaded and proved beyond reasonable doubt – Section 135 (1) of the Evidence Act. Once the appellant claims to have been forced into signing Exhibit “P1″ by virtue of his arrest by the police, then crime is a fact in issue. Respondent asked the question if the Appellant discharged this burden beyond reasonable doubt? He answered in the negative. Respondent then submitted that once an agreement between the parties has been reduced to the form of a document as Exhibit P1” no evidence may be given of the terms of the contract except the document itself. See Section 128(1) of the Evidence Act. The interpretation of a document is a matter of law, not of facts. see case of Egwunewu v Ejeagwu (2007) 6 NWLR (PART. 1031) 431 at 446 para F; Agbareh v Mimra (2008) 2 NWLR (PART. 1071) at 410 – 411 para H – B 2008 – LPELR sc page 21-22 para F-B.

“Pacto surt servanda”

means agreements are to be observed and honoured. A party cannot approbate and reprobate as the Appellant is doing in the case at hand. A party cannot blow hot and cold at the same time as expressed in the latin maxim “Allegans Contraria Non Est Audiendus.

It was reiterated by Respondent that the Appellant is not to be allowed to benefit from an agreement and then turn around to claim that Exhibit “P1 was fraudulent without pointing out the fraud, omission, mistake in Exhibit “P1″. Specifically see Chanchangi Airlines Nigeria Limited v African Petroleum Limited (2015) 4 NWLR (PART 1449) 256 para E – F a case on all fours with the case at hand where a party benefitted from an agreement and then dubbed it a fraud just so as to avoid its responsibilities under the same agreement.

The other parties are not complaining about Exhibit P1 but Appellant who has derived the most benefit is complaining about it by creating a false crisis situation and the law is settled that no one can create a crisis situation and seek to rely on it”. Isaq v Independent National Electoral Commission (2008) LPELR 4336 (CA) 45 para E -F;

Inyang v Ebong (2002) 2 NWLR (PART 751) 284 at 333 – 334 paras H – B.

It was submitted by Respondent that a party to an agreement is not allowed to resile from an agreement voluntarily entered into and in this case, the appellant did not only sign Exhibit P1, but benefitted from it as seen in Exhibit P7 and P9. See A-G Rivers State v A-G Akwa Ibom State (2011) 8 NWLR (PART 1248) 31 at 185 paras E – H.

Respondent referred to the trial Court judgment in his Reply to argument of Appellant, Respondent argued that there is nowhere they pleaded that the Appellant was a civil servant as at the time the partnership was entered into.

Respondent in reply to Appellants contention submitted that even if the Appellant was a civil servant as at the time the partnership was entered into, it was the contention of Respondent that only the Code of Conduct Tribunal and not the trial Court that has the jurisdiction to punish but nowhere in the whole of Section 209 of the Constitution of the Federal Republic of Nigeria, 1999 and paragraph 2(b) of Part 1 of the Fifth Schedule to the Constitution 1999, is it provided that any contract entered into by a

civil servant is illegal. It was reiterated by Respondent that from the definition of locus standi, the Appellant missed the point by focusing on the issue the party wishes to have adjudicated instead of focusing on the party seeking to get his complaint before the High Court.”

The Respondent debunked the contention of the Appellant, that he is a stranger to the partnership, when he participated in the settlement meeting as a partner and even signed Exhibit P1 days after the meeting with the Appellant not complaining or objecting. It was noted by Respondent that the Appellant signed Exhibit P1″ with the legal advice of his lawyer P.H. Kyelek. Also, Respondent pointed out the fact that the Appellant at the earliest opportunity did not raise the issue of locus standi or proper parties, as seen in Exhibits P2, P3, P4, P5, P6, P7 and P9 until this suit was filed. Therefore it is too late in the day, for the Appellant to so allege that the Respondent lacked locus standi when Exhibit P1 was entered into as a result of meticulous calculations on the whole on 15-03-2014. Referring to the statement of defence,

Respondent contended that there is nowhere the defence of agency for the purpose of Exhibit Pl” was pleaded or proved. Moreover that the law is settled that only the writ of summons and the statement of claim determine proper parties. See Afolayan v Ogunrinde (1990) 1 NWLR (PART 127) 369 at 394 para D-E; Bello v Independent National Electoral commission & Anor (2010) LPELR 767 (SC) P. 75 para A – C. A-G of the Federation v A-G of Abia & Ors. (2011) 11 NWLR (PART 725) 699 (2011) LPELR 631 (SC) p. 95 para B – C.

In his further submissions, Respondent assumed without conceding that the writ of summons and statement of claim pleaded that the Appellant is the agent of PW4, he submitted that the evidence obtained by the Appellant clearly shows that he is not an agent of PW4. In paragraph 4.23 of the Defendants Final written Address on page 129 of the Record of Appeal, has demolished the Appellant’s own case – PW4 was not mentioned but a company known as Kromde Proconnect UG which is a separate entity from PW4 under elementary rules of company law and the doctrine of incorporation, as seen in Section 37 of the Companies and Allied Matters Act. See

Section 167(d) of the Evidence Act. Respondent for further elucidation of the above facts referred to the Reply to the statement of Defence on page 96 of the Record of Appeal which stated that the Appellant was not an agent of PW4 for the purposes of the automobile business between the trio. The evidence of PW4 under cross-examination also confirms this fact as it was Kromde Proconnect UG that made the appellant its agent which agency was not for this business between the trio. Respondent described the call by Appellant that he is a meddlesome interloper who had no business with the parties as akin to calling on the Court to draft a new contract for the parties which is not the duty of the Court as held in Union Bank of Nigeria Ltd v Sax (Nig) Ltd (1994) LPELR – 3390 (SC) Pp. 18 – 19 para F – A.

On the argument in paragraphs 4.2.5 to 4.2.8 of the Appellant’s Brief of Argument that it is Mambol Brothers (Nig.) Ltd., that has locus standi, it is Respondent’s submission that, that is not the case of the Appellant at the trial Court. The law is settled that parties are bound by their pleadings and parties cannot make out a case outside their pleadings. Any

evidence obtained outside pleadings also goes to no issue and must be expunged – see American Cyanamid Co. v Vitality Pharmaceuticals Ltd (1991) LPELR 461 (SC) p. 31 para. F G; Amadi v Nwosu (1992) LPELR – 442 (SC) P. 11 para. C.

The Respondent reiterated the fact that the interpretation of documents is a matter of law and not of facts contrary to Appellants assertion. See Egunewu v Ejeagwu (2007) 6 NWLR (PART 1031) 431 at 446 para F. He noted that oral evidence speaks to the document, to unbundle same and not to vary, alter, add to or contradict that document. A party who does not unbundle” his documents by giving oral evidence in aid of his documents is said by the Courts to have “dumped” his documents. On the argument that this Court should exercise the power under Section 15 of the Court of Appeal Act, Cap C36 Laws of the Federation of Nigeria Respondent submitted that the Appellant has not satisfied the condition for the rare exercise of this power as laid down in Ezeigwe v Nwawulu & Ors (2010) LPELR – 1201 (SC) pp. 64 67 para G – A. Moreover the Appellant is making a new case on appeal which is not allowed by law – Oredoyin v Arowolo

(1989) 4 NWLR (PART 144) 172.

Finally on the argument of the Appellant that the Court should find that the appellant is PW4’s agent, that there has never been any business between the parties and the Respondent is a “meddlesome interloper” is akin to calling on the Court to draft a new contract for the parties which is not the duty of the Court as held in Union Bank of Nigeria Ltd v Sax (Nig.) Ltd (1994) LPELR – 3390 (SC) Pp. 18 – 19 para. F – A.

Having carefully read the record of appeal, submissions of counsel in their adopted written brief of argument, and examined the exhibits tendered therein, the pertinent question arising from the two issues distilled by Respondents counsel and the submissions of Appellants counsel, is whether it has been established by cogent evidence that the Appellant breached the Terms of the Settlement Exhibit “P1 signed on the 18-03-20 14 by the parties. In order to answer the question, it must be determined whether or not the Respondent has discharged the evidential burden of proof placed on him. That is to determine whether or not the Respondent has established his case by preponderance of evidence.<br< p=””>

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It is trite law that the burden of proof in a civil suit or proceeding lies on that person who fails if no evidence at all were given on either side. See Section 132 of the Evidence Act, 2011 as amended. Further to the foregoing Section is Section 133(1) which dictates the party on whom the burden of proof lies. I reproduce herein below Section 133(1) of the Evidence Act.
Section 133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading.”

evidence. This is what is referred to as Evidential Burden – See the cases of Ezemba v Ibeneme (2004) 7 SC (Pt. 1) 45; Daodu v NNPC (1998) 2 NWLR (pt. 538),Itauma v Akpe Ime (2000) 7 SC (pt. 11) 24; Audu v Guta (2004) 4 NWLR (Pt. 864) 469 and Mani v Shanono (2006) 4 NWLR (Pt. 969) 132.

It is trite that this onus of proof placed on the plaintiff never shift until he has discharged the burden then the onus would now shift on the defendant to defend what has been asserted. See the cases of Iman v Sheriff (2005) 4 NWLR (pt. 914) 80 and Agbi v Ogbeh (2006) 11 NWLR (pt 990) 65. What the Appellant is contending is that the Respondent at the lower Court did not discharge the burden placed on him by virtue of Section 131 – 133 of the Evidence Act, 2011 to warrant the judgment in his favour by the lower Court.

The narrow issue in this appeal is whether or not the appellant is bound by the Terms of Settlement agreed upon by the Appellant, Respondent and PW4.

The trial Court found that Exhibit “P1” was signed by the three persons Defendant/Appellant, Plaintiff/Respondent and PW4 and the two witnesses. Having put the foregoing facts into perspective the lower

Court referred to the submissions of the Defendant/Appellant in Paragraphs 4.1.1 – 4 .10 as misinformed and inapplicable in this case. In that payment and or receipt of money to or from a company account alone does not create a legal entity that the Defendant/Appellant will want to place the Plaintiff/Respondent on.

The learned trial Judge in my view rightly went on to uphold the Plaintiff/Respondent’s submission that the defendant has not appreciated the term locus standi in the light of its definition in regard to the party before the Court.

In the case of Ijelu v LSDPC & Ors (1992) 9 NWLR (Pt. 266) 414 at 423 the Court held in paragraph D as follows:
“Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent to justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.”
Exhibit “P1″ being a primary document makes the Defendant/Appellant a party to the transaction.

The learned trial Judge having

considered the submissions of both counsel in respect of this issue rightly noted that the plaintiff’s case is essentially documentary as revealed by the pleadings and evidence adduced before the Court. That primarily the main document over which this suit revolves is Exhibit P1” which is captioned “Terms of Settlement between Mr. Michael D. Lamu, Mr. Joshua J. Kromde and Hon. Nanpan T. Bongden.

Gleaning through the processes and exhibits the lower Court noted the following:
(1) There is no pleading that the plaintiff entered into an agreement with the defendant in another name.
(2) Except for the exhibits rerating to banking transactions Exhibits P9″, D1″, D2″ and D3″ no business or company name is indicated.
(3) Exhibit P8” dated 18/3/2014 is an acknowledgment of payment in favour of the defendant but which makes reference to the terms of settlement between defendant, plaintiff and PW4.

The learned trial judge in his judgment referred to Exhibit “P1” which is dated 17/3/14. It was signed by the three persons Defendant/Appellant, plaintiff/Respondent and PW4 and two witnesses. Having

put the foregoing facts into perspective, the learned trial Judge found the submission of the defendant in this issue at paragraphs 4. 1.1 – 4.10 as misinformed and inapplicable to the facts of this case. I agree with the finding of the lower Court on the defendant’s submissions in the said paragraphs. The trial Judge alluded to the submission of the counsel on behalf of the Respondent that it is the Writ of Summons of the counsel on behalf of the Plaintiff that it is the writ of summons and statement of claim that determines proper parties. In reference to Exhibit P1, the issue of agency does not arise as the parties names are just indicated without more. Paragraph 5.08-5.09 of the plaintiffs address was rightly upheld by the learned trial Judge.

The Court rightly observed in the course of the judgment Exhibit “P1” is the main plank or centre piece of the Plaintiff/Respondent’s claim in this suit.

The document is being queried by the Defendant/Appellant who caused it to be written on his behalf Exhibit P5, dated 26/5/14 and addressed to PW4. It was rightly noted by the learned trial judge that the Defendant/Appellant did

not complain about Exhibit “P9″ dated 18/3/2014 by which the defendant/Appellant was a beneficiary of some amount of money. The same three parties (plaintiff, defendant and Joshua Kromde) were signatories to the document which made reference to Exhibit P1 of 17/3/14.

The general rule is that a document speaks for itself in the sense that it would be introduced to the Court rather than dumped on it.

It was rightly pointed out in the judgment by the learned trial judge that, by the Plateau State High Court Civil Procedure Rules Order 25 Rule 6(1) and (13) particularly, the Defendant/Appellant would have taken a further step to plead specific matter regarding Exhibit P1” if he wanted to lead further evidence to attack it. There are no paragraphs of the Statement of Defence dedicated to the Defendant’s complaint.

On the face of Exhibit “P1 below, paragraph 10 before the signatures is endorsed, the following “parties hereby voluntarily content to this Terms of settlement and append their signatures”. What else can be added to or subtracted from the document? Absolutely nothing.

The Court rightly did not find any

infraction of the document Exhibit “P1”. The document is taken for what it represents nothing can be read into it or subtracted.

On whether the Defendant/Appellant can in good conscience be allowed to vilify Exhibit “P1”, despite benefitting from same with a view to denying his obligations to the plaintiff under same, the Plaintiff’s counsel M.I Darong submitted that the plaintiffs reply is in the negative.

In my view, the foregoing are sufficient to tilt the scale of Justice on the side of the Respondent, and in a way over weighing the evidence adduced by the Appellant in rebuttal. That is to say that the evidence tendered by the Respondent is not only overwhelming but completely and properly discharged the burden of proof placed on the Respondent by virtue of Section 131 – 133 of the Evidence Act 2011 (as amended).

623 at 659 -660.

In view of the evidence adduced by the Respondent, it is crystal clear that the Appellant cannot resile from the Terms of Settlement. Therefore, and in the light of the foregoing, I have no doubt in agreeing with the finding of the lower Court based on the totality of evidence tendered before the Court. I therefore find no cogent nor any compelling reason to disturb the findings of the learned trial judge appealed against. On that note, I answer the two issues in the affirmative and against the Appellant.

In conclusion, the appeal is unmeritorious and same be and is hereby dismissed in its entirety.

I award a token cost of N50,000 against the Appellant and in favour of the respondent.

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

K.D. Damulak, Esq.For Appellant(s)

N.I. Darong, Esq. with him, I.O Onah, Esq.For Respondent(s)

Appearances

K.D. Damulak, Esq.For Appellant

AND

N.I. Darong, Esq. with him, I.O Onah, Esq.For Respondent

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