GLO v. FATMAX GLOBAL VENTURES LTD (2020)

GLO v. FATMAX GLOBAL VENTURES LTD

(2020)LCN/14128(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, April 27, 2020

CA/A/707/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

GLOBACOM LTD APPELANT(S)

And

FATMAX GLOBAL VENTURES LTD RESPONDENT(S)

RATIO

DUTY OF COURT TO EVALUATE ALL EVIDENCE BROUGHT BEFORE IT

It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308.
The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision, the evidence as properly evaluated, warrants.
Thus in its primary role of reviewing a judgment on appeal in a civil case, where the trial Court’s finding or non-finding of facts is questioned, such as is done in the case at hand, the appellate Court must avail itself the evidence before the trial Court; know whether the evidence was accepted or rejected legally; know whether the evidence of each side was properly assessed and given its appropriate value and put on an imaginary scale side by side with the evidence of the other side before preferring on the basis of its weight, the evidence of the particular side. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 339 and Mogaji v. Odofin (1978) 4 SC 1.” PER IGE, J.C.A.

DUTY OF APPELLATE COURT IN THE REVERSAL OF THE LOWER COURT’S DECISION

It must however be borne in mind that it is not every error or slip by the lower Court that will lead to reversal of the lower Court’s decision unless the findings of the lower Court are not supported by the oral and documentary evidence on record. SeeAKINWATA OGBOGU MBANEFO VS. NWAKAIBE MOLOKWU & ORS (2014) 4 SCM 159 at 183 A – H per PETER-ODILI, JSC.
The Appellate Court must read the judgment as a whole in order to find out whether the judgment is perverse or has led to miscarriage of justice.
See CHIEF ADEBISI ADEGBUYI V. APC & ORS (2016) 12 SCM (PT. 2) 30 AT 46 per FABIYI, JSC who said:
“The Court below found that, ‘the trial judge could not have intended to use the word ‘dismissal’ after stating clearly that the issues are triable, and evidence would have to be taken. It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against The case of Onajobi v. Olanipekun (1985) 11 SC (Pt. 2) 156 is in point. This Court said it clearly in Adebayo v. Attorney-general, Ogun State (2008) 2 SCNJ 352 at 366-367, (2008) 5 54M, 1 per Niki Tobi, JSC that:-
“In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run, down the judgment.”
I cannot fault the approach of the Court below. The reasoning process of the judge before the use of the word ‘dismissed’, to my mind, after a slow and careful reading of same, shows that it is a slip. The law allows a Court to rectify any slip in a judgment as long as it does not amount to a miscarriage of justice. ” However where it is proved that the lower Court did not properly evaluate the oral and documentary evidence before it, and such a failure leads to miscarriage of justice, this Court will intervene to correct the anomaly or the error. See the case of ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS (2013) 8 NWLR (PART 1357) 556 AT 571 D per ARIWOOLA, JSC who held:-
“It has been held and it is trite law, that appeals to appellate Courts are by way of rehearing, In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to overrule its decision even on facts where after giving due regards to the advantage which the trial Court has of seeing the witness, it is clear the decision is wrong, See OKHUAROBO & ORS VS AIGBE. supra. “ PER IGE, J.C.A.

BURDEN OF PROOF OF DECLARATORY RELIEFS

It is trite that a person who seeks declaratory reliefs from a Court or Tribunal must prove it to the hilt. He must rely on the strength of his own case. Failure of Defendant Defence to the claim for declaratory reliefs cannot operate in favour of the claimant. The claimant or plaintiffs must produce cogent and convincing evidence to support his claim otherwise the relief sought would be dismissed.
See:EDWARD NKWEGU OKEREKE VS NWEZE DAVID UMAHI & ORS (2016) 11 NWLR (PART 1524) 438 AT 489 B – G per KEKERE-EKUN, JSC who said.-
“It has been settled by a long list of authorities of this Court that:
Where a party seeks declaratory reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted even on the admission of the defendant. See: Emenike v. P.D.P (2012) LPELR – SC 443/2011 p. 27, O-G, (2012) 12 WLR (Pt. 1315) 556: Dumez Ltd v., Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205,297 – 298 F – A, Ucha v. Elechi (2012 13 NWLR (Pt. 1317) 330. PER IGE, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

ALHAJI ADEBAYO AKANDE VS JIMOH ADISA & ANOR (2012) 15 NWLR (PART 1324) 538 AT 558 A – G per I.T. MUHAMMAD, JSC who said:-
“I think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections 135-137 of the Evidence Act, Cap 112 LFN, 1990 (Now Cap. E14 LFN, 2004). 1/135. (1) 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 facts exist.
136. “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137. “in civil cases the burden of first proving the 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 pleadings. “
By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civil matters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right, which he claims from somebody (defendant) be restored to him. In our adversarial system of adjudication, it is the practice and the law that the plaintiff should first lay his complaints before the Court by filing his pleadings. Next is that, where issues have been joined with him by the defendant then he shall go ahead to call evidence to establish each and every one of the averments and the evidence must tally. They go together. They are inseparable twins. They either survive together or perish together. Where there is an averment which has no corresponding evidence, it is deemed abandoned. Where there is evidence but there is no supporting averments, it is a worthless evidence. See: Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370: Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50; Oseni v. Bajalu (2009) 18 NWLR (Pt. 1172) 164. PER IGE, J.C.A.

WHETHER OR NOT THE COURT CAN RELY ON HEARSAY EVIDENCE

The Court cannot rely on hearsay evidence to grant reliefs to a claimant. It is not admissible. See Section 38 of the Evidence Act which says:
“Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”
See (I) SENATOR A. A. AJIMOBI V SENATOR R.A. LADOJA & ORS (2016) 10 NWLR (PART 1519) 87 at 159 D-E per ONNOGHEN, JSC now CJN.
(2)O. V. IKPEAZU V. ALEX OTTI & ORS (2016) 8 NWLR (PART 1573) 38 at 93 E-F per GALADIMA JSC.
Hearsay evidence is second hand evidence that has no probative value, see DOMA V INEC (2012) 13 NWLR PART (1317) 297 at 329 B. per RHODES-VIVOUR, JSC who said:
PW14 and PW44 testimony that there were malpractices in polling units they admitted they never went to which is evidence of what they were told or what they heard from someone else. This is second hand evidence, clear hearsay evidence and it is inadmissible to prove that there were actually malpractices in the polling units they never went to Hearsay evidence is thus inadmissible to prove that fact.” PER IGE, J.C.A.

CROSS-EXAMINATION OF WITNESSES

The Appellant has succeeded in showing that the lower Court’s evaluation of oral and documentary evidence before it was patently wrong and thus came to a wrong decision. I have re-evaluated the materials placed before the lower Court and in particular the documentary evidence and I have no doubt in my mind that the decision of the lower Court is perverse and it is against the weight of evidence.
See:ISAAC GAJI & ORS V. EMMANUEL PAYE (2003) 8 NWLR (PART 823) 583 at 605 B – C per EDOZIE, JSC who:
“It has been said that the effect of failure to cross examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt.681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (PART 70) 325 (1988) 2 SCNJ 146, this Court held that it is not proper for a defendant to cross examine a Plaintiff’s witness on a material point and to evidence on the matter after the Plaintiff had closed his case.”
The same is true here where the Plaintiff’s Learned Counsel failed to cross examine Appellant’s witness on material points over which issues were joined on the pleadings. The finding of lower Court is perverse and ought to be set aside.
See: ADIELE IHUNWO V JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA JSC said:
“It has been held that it is trite law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to evaluate its decision even on facts where after giving due regard to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See, Okhuarobo & Ors v Aigbe (supra).” PER IGE, J.C.A.

DEFINITION OF “AGENCY”

The Appellant cannot from all the circumstances be held liable for the illegal act of his Agent QUASIM BELLO for he acted fraudulently and without authority.
See: MISS PROMISE MEKWUNYE VS. EMIRATES AIRLINES (2019) 6 SCM 32 at 901 to 91 A – D per PETER ODILI JSC who said:
“The question herein raised brings up the matter of agency and the principle guiding agency is already trite in law, in the case of Okwejiminor v Gbakeji (2008) 5 NWLR (Pt.1079) 172, (2008) 3 SCM, 134 Mohammed JSC defined the concept of agency thus:
“Agency is the relationship which exists or arises where one person called the agent, has the authority or capacity to create legal relations by acting on behalf of another person called the principal whereby the latter undertakes to be answerable for the lawful acts of the former provided it was done within the scope of the former’s authority, or ratified by the latter”. (Underlining mine).
In Bamgboye v Unilorin (1991) 8 NWLR (Pt. 207) 415, the Supreme Court per Akintan JSC held thus:-
“An agency relationship exists only where a person called the agent has the authority to act on behalf of another called principal”.
In Jallco Ltd v Owoniboys Technical Services (1995) 4 NWLR (Pt.391) 534 this honourable Court held that-
“Under the doctrine of apparent or ostensible authority where a person by words or conduct represents to a third party that other has authority to act on his behalf he may be bound by the acts of that other as if he had in fact authorized them.” PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Niger State delivered on 11th day of February, 2016.

The Appellant, GLOBACOM LIMITED, was sued by the Respondent FATMAX GLOBAL VENTURES LIMITED vide her writ of summons issued out of the said Court on 17th September, 2014 claiming the following relief against the Appellant as Defendant viz:
1) A DECLARATION that the act of the agent of the defendant is an act of the defendant which is binding on it.
2) A DECLARATION that the defendant is liable for the act of its agent in its transaction which is binding on it.
3) A DECLARATION that the defendant is liable for loose of business by the claimant from the 18th March 2014 when it made its deposit for the supply of recharge cards to the defendant.
4) AN ORDER directing the defendant to refund to the claimant the sum of five million naira only (N5,000,000) being money paid by the claimant to the defendant for the supply of ten CDs of recharge card.
5) IN THE ALTERNATIVE AN ORDER for specific performance directing the defendant to supply to

the claimant ten CDs of recharge card within thirty days of the judgment of this Court and for the claimant to pay its remaining balance thereof.
6) AN ORDER directing the defendant to pay ten percent 10% weekly return on investment on N5,000,000 paid by the claimant for the supply of recharge card from the 18th March 2014 when the money was deposited until the judgment in this case.
7) AN ORDER directing the defendant to pay Five million naira (N5,000,000) general and aggravated damages in respect of the transaction to the claimant.
8) AN ORDER directing the defendant to refund the cost of filing and prosecuting this case.
9) ANY OTHER orders as the Court may deem fit to make in the circumstance of this case.

After exchange of pleadings and other processes, the matter proceeded to hearing and at the end of trial the Learned Counsel to the parties adopted their written Addresses. The Learned trial Judge delivered a considered judgment wherein he held:
“On the whole I hereby hold that the plaintiff has established his case on the preponderance of evidence before Court.
Consequently grant him relief No.1 sought for i.e. for the

defendant to refund the plaintiff the sum of Five Million Naira (N5,000,000.00) being money paid by the plaintiff to the defendant for the supply of 10 CDs of recharge card.
Or
The plaintiff should in the alternative supply the plaintiff the 10 CDs of recharge card within 30 days from today and the plaintiff will pay him the balance of One Million, Seven Hundred and Twelve Thousand, Five Hundred Naira (N1, 712,500.00) if he is so supplies the recharge cards of Ten CDs.
And I grant the plaintiff the sum of N500,000.00 as substantial cost of litigation.”

The Appellant was dissatisfied with the judgment and has by her NOTICE of Appeal dated 4th March, 2016 and filed on 15th March, 2016 appealed to this Court on two grounds which with their particulars are as follows:
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: The whole decision.
GROUNDS OF APPEAL
Ground One
That the learned trial Judge erred in law when the Court held that the principal is liable for the acts of his agent in the course of its employment both criminal and civil actions and thereby occasioning miscarriage of justice.
PARTICULARS OF ERROR<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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There was no evidence before the lower Court tending to show that the Five Million Naira (N5,000, 000.00) was paid into the Appellant Account.
ii. There was an evidence’ before the lower Court that the Five Million Naira (N5,000, 000.00) was paid into Green Bello Communication Ltd with an Account No: 1013529331 with Zenith Bank Plc.
(iii) That the said Green Bello Communication Ltd with Account No: 1013529331 is not same and one as (Globacom Ltd) as the Appellant.
(iv) That there was no evidence before the lower Court that the Five Million Naira (N5,000, 000.00) was paid to the Appellant before the lower Court delivered its judgment of 11th February 2016.
(v) That the Respondent did not join both the Kasim Bello who directed the Respondent to pay the Five Million Naira (N5, 000, 000. 00) to Green Bello Communication Ltd nor was the Green Bello Communication Ltd joined in the suit by the Respondent.
Ground Two
The lower Court erred in law when it failed to consider and evaluate the evidence/testimony of DW1 as well as exhibits E-E1 respectfully tendered as admitted as such thereby occasioned miscarriage of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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PARTICULARS OF ERROR
i. DW1, the Appellant sole witness testified to the effect that the Respondent PW1 had purchased the Appellants goods before and after PW1 made payment of Five Million Naira (N5,000,000.00) to Green Bello Communication Ltd at the instance of Kasim Bello, the Appellants agent and also purchased Appellants goods after the Respondent agent made payment of Five Million Naira to Green Bello Communication Ltd.
ii. That the Respondent was aware of the procedure of purchasing the Appellant’s goods which gave birth to exhibits E and E1 respectively, having purchased the Appellants goods before and after the purchase that gave raise to this Suit.
iii. It was also the testimony of DW1 that at the time of purported purchase, the ten CD of Appellant’s goods (recharge cards) was sold at Seven Million, One Hundred and Twenty Five Thousand Naira (N7,125, 000) only and not Six Million, Seven Hundred and Twelve Thousand, Five Hundred Naira ”

Appellant’s Brief of Argument dated 13th January, 2017 was filed on 16th January, 2017 while the Respondent’s Brief of Argument was filed on 28th February, 2017. It was dated 22nd day of February,

The Learned Counsel to the Appellant Appellant’s Reply Brief was filed on 5th April, 2017. It was dated 27th March, 2017. The Learned Counsel to the Appellant formulated two issues for determination as follows:
1. Whether the appellant who is also a principal liable for an unauthorized tortuous act or contractual acts of the agent can bind the principal when the alleged N5,000,000.00 was not deposited/paid into the principals account, or whether or not Kashim Bello is not personally liable to the respondent (Ground 1).
2. Whether the lower Court considered and evaluated evidence of DW1 and exhibits E-E1 tendered and admitted in evidence (Ground 2).

The Learned Counsel to the Respondent distilled one issue for determination viz:
Issue one
“Whether from the evidence before the trial Court the Appellant disproved the respondent’s claim. (Distilled from grounds 1 and 2 of the Notice of Appeal).”

The appeal will be determined on the two issues nominated by the Appellant and they will be taken together.
1. Whether the appellant who is also a principal liable for an unauthorized tortuous act or contractual acts of the agent can bind the

principal when the alleged N5,000,000.00 was not deposited/paid into the principal’s account, or whether or not Kashim Bello is not personally liable to the respondent (Ground 1).
2. Whether the lower Court considered and evaluated evidence of DW1 and exhibits E-E1 tendered and admitted in evidence (Ground 2).

The Learned Counsel to the Appellant Benjamin A. Adokwu Esq. under Issue 1 referred to the pleadings of the parties on pages 5 – 9 and 103 – 106 respectively and stated that it is not in dispute that the Respondent is one of the Appellant appointed/accredited dealer in Niger State saddled with Responsibility of purchasing Appellant’s product in Minna Niger State and at the same time sell to the Retailers in Minna.

That on that score the Respondent bought recharge Cards worth (N17,009,800) relying on Sterling Bank Confirmation letter of 9/1/2014 and 12/5/2015 respectively on page 91 of the record. He stated that the Agent of the Respondent who is also the Managing Director of the Respondent one MR. SALAWU HUSSUNI TAIWO signed and collected the recharge cards on behalf of the Respondent relying on Exhibits E – E1 on pages 81 – 91 of the record of appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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According to him, the transaction leading to the action was transacted in UMUAHIA IN ABIA STATE where Respondent’s Agent aforesaid paid five million naira to GREEN BELL COMMUNICATION LIMITED ACCOUNT NUMBER 1012529331 with ZENTH BANK PLC at the instance of KASHIMI BELLO an Agent of the Appellant.

He stated further that the said money was not paid into Appellant’s Account and that all of these were known to the parties herein that as a matter of fact the Respondent’s Agent MR. SALAWU HUSSINI TAIWO had at different times purchased Appellant’s goods paying to the Appellant before and after the transaction of 18th March, 2014 on 9/1/2014 and 12/5/14 as could be seen on pages 87, 88, 89 and 92 of the record.

That Exhibits B – B11 revealed that all Bank deposit Tellers show that the money was paid into Green Bell Account 10103529-331 with the Zenith Bank Plc.

He submitted that no money was paid to Globacom Limited Account to warrant the judgment and liability foisted on the Appellant. He submitted that it is trite that any unauthorized acts of an agent cannot bind the principal relying on the:
1. COVER V. WICKIFFE VOL. 17 WLR 110

OBASEKI VS. ACB & ORS (1996) NMLR 35 and
3. MRS F. O. LABODE VS. DR. GODFREY OTUBU & ORS (2001) NSCQ 722 at 753 per ACHIKE JSC.

Learned Counsel to the Appellant submitted that at the time the said MR. KASHIMI BELLO directed the Plaintiff/Respondent to pay to Green Bell Communication Limited, he was not an agent of the Appellant in so far as the money was not paid into Appellant’s Account. That since Kashimi, directed the respondent to pay the said sum into Green Bell Communication Limited account the said Kashimi Bello acted outside the scope of his Agency and as such the Appellant is not liable. He relied on:
1. OBASEKI V. ACB supra
2. ATAGUBA COMPANY V. GURA NIG. LIMITED (2005) VOL. 18 WRN 1 at 25 per Edozien, JSC.
3. FIRST BANK NIGERIA LIMITED VS. ALEXANDER OZOKWERE (2013) 12 SCNJ 280 at 314 per M. O. KEKERE – EKUN, JSC.

That the lower Court failed to consider the case of FIRST BANK PLC but relied on the general principle of law of Agency in the case of IYERE V. BENDEL FEED & FLOOR LIMITED (2008) 12 SCNJ 412 as 430 – 451. That even in that case it was held that a Principal is not automatically liable for the

acts of an agent where the tort committed is outside the scope of the Agent’s authority.

That in this case Mr. Kashimi Bello who gave Account Number 1012529331 belonging to Green Bell Communication Limited to pay purportedly N5,000,000.00 acted outside the scope of his Principal’s authority.

That it was not in dispute that the Respondent asked MR. KASHIMI BELLO to refund the money in her statement of claim page 7 of the record and that it was also not in dispute that the said money was not paid into the Globacom Nigeria Limited Account but rather to Green Bell Communication Limited with Account Number 1013529331 at ZENITH BANK PLC.

Learned Counsel to the Appellant submitted that on the basis of decisions of Supreme Court cited the lower Court was wrong when it held that the Appellant was liable to refund the money to the Respondent when according to him it was apparently clear that nothing was paid to the principal, Globacom Ltd but was rather paid to a third party. He urged the Court to resolve Issue one in Appellant’s favour.

On issue 2, as to whether the lower Court considered and evaluated the evidence of DW1 and Exhibits E – E1 tendered and admitted

in evidence on behalf of Appellants. Learned Appellant’s Counsel reiterated that the sum of N5,000,000.00 in dispute was not paid to Appellant to purchase recharge card as no such money was paid but that the money was paid to Green Bell without any authority from Appellant on instruction of Mr. Kashimi Bello. That Green Bell is not the same as Appellant and that Appellant does not sell ten CD of recharge cards at N6,712,500.00 BUT at N7,125,000.00 contrary to the claim of the Respondent. That Appellant does not receive part payment for purchase of its recharge cards.

That there was no reason for Respondent to go as far as ABIA STATE to purchase Appellant’s goods, when the Appellant has Agent for Minna.

That the Respondent had purchased recharge cards from Appellant many times before the issue forming subject matter of this case hence Respondent was fully aware of procedure for payment.

He relied on the evidence of his witness, DW1 and that he gave evidence that GREEN BELL COMMUNICATION does not belong to Appellant. That there was no proper evaluation of oral and documentary evidence given by DW1 on behalf of appellant. He relied on numerous cases including the case of

SAMPSON EBENEHI & ANOR V. STATE (2009) 3 SCNJ 20.

That the DW1 was not cross examined on important evidence contained in paragraphs 9, 10, 11, 13, 14, 15, 16, 17 20 and 21 of DW1 witness statement on Oath and that Respondent must be deemed to have admitted those facts.

That where a person or Agent makes a contract or transaction in his own name instead of his Principal’s name such person or Agent will be personally liable in case of a breach. He relied on the case of B. B. Apugo & Sons Limited v. Orthopaedic Hospital Management Board (2005) 17 NWLR (Pt. 954) 305 – 340.
He urged the Court to allow the appeal.

In response to the above submission, the Learned Counsel to the Respondent MR. HUSSAINI ZAKARIYAU, Esq. who settled the Respondent’s Brief of Argument stated that the Issue is as to whether the Appellant could be made liable for the act of the agent done in the course of transacting business with the Respondent and the circumstances that will make a principal liable for the act of his Agent. He relied on the case ofIYERE V. B.F.F.M (2009) 37 NSQR 290 at 295 ratio 8.

According to him the Appellant admitted certain facts which all proved the

case of the Respondent. He listed them as follows:
a. That the Respondent is a dealer of the Appellant.
b. That the Respondent purchased the Appellant’s recharge card through the Appellant’s Agent.
c. That QASIM BELLO was the Appellant’s Agent.
d. That Appellant employed QASIM BELLO to sell recharge card to its dealers.
e. That the Respondent purchased recharge card through the Appellant Agent (QASIM BELLO).
f. That QASIM BELLO (Appellant Agent) direct the Respondent to make payment through some accounts for the Appellant after which recharge cards are supplied through the Appellant’s email tied to its Agent (QASIM BELLO).
g. That Respondent made payment of N5,000,000 through the account requested by QASIM BELLO for the Appellant.
h. That the Appellant Agent (QASIM BELLO) did not supply the recharge card of N5,000,000.
i. That Agent (QASIM BELLO) was dismissed by the Appellant two months after the Respondent filed suit No. NSHC/MIN/228/2014 against the Appellant.”

He relied on pages 13, 135 and 137 of record per PW1’s evidence.

According to Learned Counsel to the Respondent by virtue of Section 123 of the Evidence Act, 2011 as amended

facts admitted need no further proof of it. He relied on the case of AREGBESOLA V. OYINLOLA (2010) WRN 1 at 59. That documentary evidence is the yard stick to measure oral evidence thus Learned Counsel stated that Respondent tendered Exhibits A1 – A16; D1 – D2 to prove that he made payment as directed by the Appellant’s Agent QASIM BELLO and that Appellant Agent made use of Appellant email address in the course of Appellant’s work to send purchased recharge card to the Respondent. To him the evidence of PW1 is like a mortal rock difficult to be destroyed by the Appellant. He relied on the case of INEC v. OSHIOMOLE (2008) 48 WRN 41 at 83.

Learned Counsel to the Appellant stated that the Appellant while trying to disprove Respondent’s case as per Section 133(2) of the Evidence Act relied heavily on two points which Respondent’s Learned Counsel listed as follows:
“(a) That the Appellant appointed the Respondent as dealer and its purchase is only restricted to Minna.
(b) That Appellant’s Agent QASIM BELLO acted outside the realm of work for which the Appellant appointed.

He submitted that the Appellant woefully failed to prove the

assertions. That DW1 agreed under cross examination that they have no proof or evidence to support the assertions.

That no document was shown to support the assertion and none was tendered to show that area of operation of Appellant’s Agent QASIM BELLO was restricted to MINNA.

That Exhibits A1 – A16 show that Appellant’s Agent was dealing with Respondent. And that by the case of IYERE v. BFFM supra the Agent act is capable of being ratified. That DW1 admitted that there is evidence showing Qasim Bello was a staff of Globacom. That the lower Court held that the evidence adduced by the Plaintiff was direct and unchallenged.

On the complaints of the Appellant that DW1’s evidence was not properly evaluated along with exhibits E – E1 the Learned Counsel to Respondent stated that the submissions are unfounded. That evaluation of evidence by a trial Court is only on matters upon which issues are joined. That issues were not joined on Exhibits E – E1 before the trial Court. That Respondent agreed to Exhibit E and that Exhibit E was made through another company Don P given by Appellant’s Agent.

That Appellant pleaded in paragraphs 8 and 9

Exhibits E and E1 on page 74 of the record and that in its Reply to Appellant’s Reply to Appellant’s Defence paragraph 4 thereof admitted paragraph 9 of Appellant’s assertion with qualification. He relied on PW1’s evidence to further submit that no issue was joined on Exhibit E.

That evidence of DW1 as contained on pages 80 – 83 and 140 – 141 of the record and his cross examination were seriously evaluated on pages 209 – 211 in the printed record. That the lower Court properly evaluated the evidence of the Dw1.
That where an agent is authorized to do an act which is not ex facie illegal the principal assumes full responsibility. He urged this Court to dismiss the Appellant’s appeal with substantial costs.

In his Reply as contained in the Appellant’s Reply, the Learned Counsel to the Appellant submitted that the directive by Qasim Bello to Respondent to pay money meant for the sales of Appellant’s recharge cards to the GREEN BELL COMMUNICATION LIMITED at Zenith is outside the scope of his authority. That Qasim Bello owed Appellant duty to pay such money to Appellant Account and not to a company that has no relationship with Appellant.

That Exhibits E and E1 were tendered to prove that Appellant does not deliver goods via email but goods are released upon presentation by confirmation letter from Appellant’s bank. That Exhibit E related to goods purchased by Respondent on 9/1/2014 while E1 relates to transaction of 10/5/2014 contained on pages 91 – 92 of the record.

That PW1 admitted knowing the procedure of purchasing goods from Appellant. That PW1 as Managing Director and Agent collected goods from Appellant on pages 88 – 89 the record.
That this shows Appellant cannot be bound or liable for money paid to a third party.
That Exhibits B1 – B11 speak for themselves as they were not paid to Appellant’s Account. That Exhibits shows he acted outside authority of his Agent.

The law is settled that an Appellant who complains that the decision of the Court is perverse for lack of adequate or proper evaluation of Oral and documentary evidence, he must prove or establish that the Court of first instance made improper use of opportunity of seeing the witnesses testified before him. He must show that there was misapplication of oral and documentary placed before the lower Court.

He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and reevaluate the oral and documentary evidence.
1. DR. SOGA OGUNDALU VS. CHIEF A.E.O. MACJOB (2015) 3 SCM 113 at 124 per RHODES – VIVOUR, Jsc.
2. O. A. AKINBADE & ANOR VS. AYOADE BABATUNDE (2018) NWLR (PART 1618) 366 at 387 H to 388 A-D per M.D. MUHAMMED, JSC who said:-
“Counsel have alluded to a number of legal principles in urging that they are necessary guide in the determination of the appeal. In this wise one agrees more particularly with learned respondents’ counsel that the task of evaluation of evidence and the ascription of value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing, hearing and assessing the witnesses who testified in proof or context of the matter. See Adeniji v. Adeniji (1972) 4 SC 10; Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change v. INEC & Ors (2011) LPELR 8257 (SC); (2011) 18 NWLR

(Pt.1279) 493.
It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308.
The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision, the evidence as properly evaluated, warrants.
Thus in its primary role of reviewing a judgment on appeal in a civil case, where the trial Court’s finding or non-finding of facts is questioned, such as is done in the case at hand, the appellate Court must avail itself the evidence before the trial Court;

know whether the evidence was accepted or rejected legally; know whether the evidence of each side was properly assessed and given its appropriate value and put on an imaginary scale side by side with the evidence of the other side before preferring on the basis of its weight, the evidence of the particular side. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 339 and Mogaji v. Odofin (1978) 4 SC 1.”

word ‘dismissal’ after stating clearly that the issues are triable, and evidence would have to be taken. It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against The case of Onajobi v. Olanipekun (1985) 11 SC (Pt. 2) 156 is in point. This Court said it clearly in Adebayo v. Attorney-general, Ogun State (2008) 2 SCNJ 352 at 366-367, (2008) 5 54M, 1 per Niki Tobi, JSC that:-
“In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run, down the judgment.”
I cannot fault the approach of the Court below. The reasoning process of the judge before the use of the word ‘dismissed’, to my mind, after a slow and careful reading of same, shows that it is a slip. The law allows a Court to rectify any slip in a judgment as long as it does not

amount to a miscarriage of justice. ”

However where it is proved that the lower Court did not properly evaluate the oral and documentary evidence before it, and such a failure leads to miscarriage of justice, this Court will intervene to correct the anomaly or the error. See the case of ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS (2013) 8 NWLR (PART 1357) 556 AT 571 D per ARIWOOLA, JSC who held:-
“It has been held and it is trite law, that appeals to appellate Courts are by way of rehearing, In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to overrule its decision even on facts where after giving due regards to the advantage which the trial Court has of seeing the witness, it is clear the decision is wrong, See OKHUAROBO & ORS VS AIGBE. supra. ”

I have laid out at the outset the declaratory reliefs claimed by the Respondent and the reliefs sought in the alterative by the Plaintiff now Respondent to this appeal. The Respondent had claimed that she paid the sum of N5,000,000.00 to the Defendant now Appellant for the supply of Ten CDs of Recharge Cards as at 18th March, 2014 and that the money was

deposited into the Appellant’s account.

The Record of appeal shows that no money was deposited into the Appellant’s Bank Account at Sterling Bank. The Respondent has always paid for any Recharge Cards it ordered from the Appellant by payment of the monetary value of the Recharge Card into the Account of the Appellant at the STERLING BANK.

The position of the Respondent was that it paid the money for the purchase of Recharge Card to the account of GREEN BELL COMMUNICATION LIMITED in ABIA STATE on the instructions of the Appellant Agent one Qasim Bello who was the former Agent of the Appellant in Niger State.

The Appellant as Defendant stated in their Defence that the said Qasim Bello was no longer their Niger State Representative as another person was in charge at Niger State. The said Agent Qasim Bello upon promotion by Appellant was deployed to ABIA STATE and the Appellant found it strange that the Respondent and its Managing Director would leave Niger State to ABIA to transact business with their Agent in ABIA STATE and paid money to a company that have no relationship with Appellant.

The Respondent’s statement of claim paragraphs 7 – 23

thereof are as follows:
“7. These agent through the claimant transact business with the defendant is one QASIM BELLO.
This transaction is done with the defendants agent by payment in to the agents account or some designated account provided by the agent (Green bell communication account no. 1013529331 with Zenith Bank) after which the agent will send the purchased goods to the claimants managing directors’ email address from where the claimant prints and sell it purchase recharge cards.
9. This has been the mode by which the claimant purchased his goods from the defendant through its agent with the goods sent via the claimants managing directors email address for subsequent printing and distribution.
10. These payments are evidenced by transfer from the claimants account number 0004708679 with Stanbic IBTC Bank Plc to any account requested by Qasim Bello or by deposit slip no. 6903937, 6538987, 6605804, 6604557, 6538988, 6838659, 7007601, 6764834, 6624816, 6771531 and 6623026 of Zenith Bank Plc, all of which defendant agent supplied their charge cards by way of transfer in to the claimant managing directors email, except the last deposit of

(Five Million Naira Only) of 18th March 2014.
11. All these payments were paid to Qasim Bello (the defendants staff) and who has been supplying the required recharge card as at when due.
12. In the course of time and in recognition of the good effort of Qasim Bello by the defendant; the defendant sometimes in 2014 promoted Qasim Bello to the position of its Group business director in charge of its Umuahia office in Abia State.
13. After the defendant promotion of Qasim Bello; the claimant continued transacting business with the defendants through Qasim Bello.
14. All this purchases were supplied by an upload of the card to the claimants managing director’s email where the claimant takes delivery by downloading and printing same for its retails sales.
15. The claimant last transaction with the defendant through Qasim Bello: the defendant Group Business director was for the purchase of ten (10) CDs of recharge card worth six million seven hundred and twelve thousand five hundred naira (N6,712,500).
16. The claimant as usual paid the sum of five million naira Qasim Bellos instruction for the purchase in to green bell communication

Ltd account no. 1013529331 with Zenith bank Plc with an understanding that the balance of six million seven hundred and twelve naira will be paid on delivery of the goods.
17. This amount was paid by the claimant on March, 2014 but since the payment, the claimant did not receive any delivery from the defendants agent.
18. The claimant put a call to the defendant but Qasim Bello complained of the challenges the defendant is facing in generating its recharge cards coupled with the challenge of assuming his new office and asked for about two weeks for the supply to be made.
19. Two weeks after this conversation; the claimant calls the defendant agent (Qasim Bello) who also gave another reason for the non delivery.
20. In May 2014, the claimant decided to write a letter requesting the defendant through Qasim Bello to refund its money if they cannot supply the required goods. But Qasim Bello refused to collect the letter from claimant.
21. Later the defendant agent; Qasim Bello stopped picking the claimants call and when the claimant inquired further; he learnt that the defendant terminated Qasim Bello’s appointment sometime in June 2014.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This led to this suit for the defendant to refund the money collected by it through its agent Qasim Bello.”
23. The claimant since the 18th March, 2014 when it made this payment to the defendant have sustained challenge in its business and hereby claims damages for same.

The Appellant joined issues with the Respondent in paragraphs 6 -10, 14 – 18, 26 – 31 of the statement of Defence as follows:
“6. The defendant in reply to paragraph 7 of the statement of claim states that Qasim Bello is not defendant’s agent at its Niger State office where the plaintiff is appointed dealer rather Qasim Bello is the defendant agent at Abia State Office.
7. The defendant deny paragraph 5 of the statement of claim to the extent that Green Bello Communication with Account No: 1013529331 with Zenith Bank is not the defendants account No.
8. In further answer to paragraphs of the statement of claim the defendant states that it does not send its goods paid for to the dealers or Managing Directors’ email address rather, the dealer after paying to Globamobile sales Account, presents Bank confirmation to the defendant agent before the dealer or its

authorized agent collect the recharge card.
9. In further answer to paragraph 5 of the statement of claim the defendant states that the plaintiff is aware of the procedure and made several payment before collecting defendants goods or recharge cards. The defendant plead bank confirmation letters dated 5th January 2014 and 12th May 2014 and shall rely on same at the hearing.
10. The defendant states further that after the plaintiff paid for goods with Five Million, Four Hundred and Sixty Five Thousand Naira (N5,465,000.00) the goods were personally collected by the plaintiff’s Managing Director (Salawu Taiwo) on 12th May 2014, the defendant pleads goods outward Note, inspection Teams confirmation and Dealer order Form and shall be found at the hearing
14. The defendant states further that the plaintiff knows the procedure of buying the defendants goods more so that delivery of defendants goods is not done through email address.
15. The defendant in further answer to paragraph 10 of the plaintiffs statement of claim states that payment for the purchase of the defendant goods by its dealers are paid directly to the designated Globamobile

sales Account, thereafter goods are released to the dealers directly not through any other means upon presentation of confirmation letter from the said designated bank these procedure is not strange to the plaintiff as its Director has gone through same processers before the alleged deposit of Five Million Naira (N5,000,000.00) on 18th March 2014
16. The defendant deny paragraph 11 of the statement of claim and put the plaintiff to the strictest proof.
17. The defendant avers that the plaintiff did not pay the alleged amount to its agent as the plaintiff is aware that monies for purchase of its goods are not paid to its agent rather to its designated Bank with the defendants Account Number.
18. The defendant deny paragraph 12 of the statement of claim to the extent that Qasim Bello was the defendants Group Business Director, but Business Director in-charge of Umuahia office in Abia State and restricted to sell its goods only to its dealers in Abia State and no dealer from any other state can purchase its goods from another state other than the state where the dealer is appointed.
26. The defendant denies paragraph 16 of the statement of

claim and put the plaintiffs to the strictest proof.
27. In further answer to paragraph 16 of the statement of claim the defendant states Green Bell Communication Ltd with account No: 1013529331 with Zenith Bank Plc does not belong to the defendant and the defendant does not accept part payment of its goods sold to its dealers ever and/or does not accept payment of balance upon delivery of its goods, the plaintiff Managing Director is very much aware of procedure of buying its recharge card and not claim to be ignorant of purchasing procedure which he did on 8th January 2014 and 12th May 2014 before that 18th March 2014.
28. In reply to paragraph 17 of the statement of claim the defendant states the plaintiff did not pay the alleged Five Million Naira (N5,000,000.00) to its account, and cannot purchase its recharge card from any state other than Niger State where is appointed as a dealer and ought to have joined Qasim Bello as a defendant in this case if he actually paid the alleged money to him.
29. In reply to paragraphs 18 and 19 of the statement of claim the defendant states it never encounter any challenges in generating its recharge

card as the recharge card was available in Niger State and all the states in Nigeria.
30. In reply to paragraph 20 of the statement of claim, the defendant states that he was not aware of any letter of May 2014 asking for refund of money as no money was paid to its agent for the purpose of buying its recharge card as the said Bello was not authorized to collect money on behalf of the defendant and the plaintiff Managing Director (Taiwo Salawu) is very much aware of the procedure of buying its recharge card.
31. In reply to paragraph 21 of the statement of claim, the defendant states that Qasim Bello is no longer in its employment and states further that the defendant is not aware of any transaction on its behalf with the plaintiff as the plaintiff is very much aware of the procedure with regard to purchase of its recharge card and the plaintiff is not allowed to purchase its recharge cards outside its state of operation, i.e Niger State the defendant pleaded letter of appointment and shall be found at the hearing Notice is hereby given to the plaintiff to procedure the original at the hearing.”

It is trite that a person who seeks declaratory reliefs

from a Court or Tribunal must prove it to the hilt. He must rely on the strength of his own case. Failure of Defendant Defence to the claim for declaratory reliefs cannot operate in favour of the claimant. The claimant or plaintiffs must produce cogent and convincing evidence to support his claim otherwise the relief sought would be dismissed.
See:EDWARD NKWEGU OKEREKE VS NWEZE DAVID UMAHI & ORS (2016) 11 NWLR (PART 1524) 438 AT 489 B – G per KEKERE-EKUN, JSC who said.-
“It has been settled by a long list of authorities of this Court that:
Where a party seeks declaratory reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted even on the admission of the defendant. See: Emenike v. P.D.P (2012) LPELR – SC 443/2011 p. 27, O-G, (2012) 12 WLR (Pt. 1315) 556: Dumez Ltd v., Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205,297 – 298 F – A, Ucha v. Elechi (2012 13 NWLR (Pt. 1317) 330.

The entire evidence given by the PW1 and the only witness called by the Respondent as Plaintiff is as follows on pages 131 – 138

of the record of appeal:
FATMAX GLOBAL VENTURE ————– PLAINTIFF
AND
GLOBALCOM LTD ————————–DEFENDANT
Plaintiff- Present Speak English.
Defendant – Absent.
Mr. A. I. Mustapha with M.M. Abdul Esq. and A. M. Al Amin, for the plaintiff.
Mr. Muhammad Liman for the Defendant, holding brief of Ben Adokwu Esq.
Mr. Mustapha:- The matter is for hearing and we are ready with
1 witness in Court.
Court:- Go ahead.
P. W1
Moslem affirmed, Speak English. My name is Salawu Hussaini Taiwo, I am a Telecom business man. I reside at London street. My name as contained in my witness statement on oath is Salawu Taiwo.
I gave my statement in this suit dated 11/9/2014. If I see the statement I can recognize it by my signature. This is the witness statement on oath I am referring to. I seek to adopt it. Mr. Mustapha:- We seek to adopt the statement of witness dated 11/9/2014 and the second is dated 30/6/2015.
Mr. Liman:- No objection
SGD.
JUSTICE MARIA SANDA ZUKOGI
JUDGE.
15/7/2015.
Continues Witness:-
At paragraph 9 and 11 of my statement I referred to payment

to Zenith Bank. I referred to document generated by use of computer in our affidavit verifying. I seek to tender the document generated by use of computer, dated 28/12/2013 addressed to Salawu Taiwo, 97 at yahoo.com and it emanates from Kassim Bello.
Mr. Liman:- No objection
Court:- Mark the document generated by the use of computer in this case dated 28th December 2013 as Exhibit A1- A16.
Witness Continues:- I said I deposited 5 million Naira to defendant’s account at paragraph 6 of my statement.
Mr. Mustapha:- We seek to tender the Zenith bank deposit slip in evidence.
Mr. Liman:- No objection.
Court:- Mark the Zenith bank deposit slip as Exhibit B1- B11.
At paragraph 11 of my statement I also made a transaction Stanbic IBTC bank with my statement of account. If I see the statement I can recognize it from my Company account name of Fatmax Global Venture. This is the statement of account.
Mr. Mustapha:- Witness has identified the document and we seek to tender same in evidence.
Mr. Liman:- No objection.
Court:- Mark the document as Exhibit C1- C47.
Witness Continues:- I also made mention of some deposit

I made to one Hakim.
Bello: If I see the teller I can identify it by the name of the account and the bank I deposited the money. This is the teller.
Mr. Mustapha:- The witness has identified the deposit to Zenith bank and we seek to tender same in evidence.
Mr. Liman:- No objection
Court:- Mark the deposit slip as Exhibit 01 and the standing order transfer as Exhibit b2.
Cross Examination by Mr. Mohammed Liman:- I am not versed in the case my learned senior is before Chief Judge, I crave the court’s indulgence to adjourn the matter for cross examination.
Mr. Mustapha:- We are not objecting to the application.
Court: The case is adjourned to 30/9/2015 for cross examination
SGD.
JUSTICE MARIA SANDA ZUKOGI
JUDGE
15/7/3015.
IN THE HIGH COURT OF JUSTICE OF NIGER STATE OF NIGERIA IN THE MINNA JUDICIAL DIVISION
HOLDEN AT MINNA
ON WEDNESDAY THE 7TH DAY OF OCTOBER, 2015
BEFORE HIS LORDSHIP
HON. JUSTICE MARIA SANDA ZUKOGI:- HIGH COURT JUDGE
SUIT NO: NSHC/MN/228/2014
BETWEEN
FATMAX GLOBAL VENTURE – PLAINTI FF
AND
GLOBALCOM LTD – DEFENDANT
Plaintiff- Present Speak

English.
Defendant – Absent
Mr. A.M Al Amin for the Plaintiff
Mr. Ben Adokwu for Defendant
Mr. Adakwu: – The case is for cross-examination of PW1 and we are ready.
Mr. Al Amin.- The matter is for cross-examination and my witness is in Court.
PW1
Still on oath, I was here on 15/7/2015 and testified Cross examination:- I am the M D and chief executive of the plaintiff’s Company, I was appointed as Global comm. dealer in the year 2014. I am claiming 5 million from Global comm. I pay to agent of Globalcom that represent Global com.
I pay to Green Bell communication limited, with Zenith bank. The amount in exhibit 01 and 02 amount to 5 million and the whole amount was paid to Green Bell communication limited. Green Bell communication limited with reference to this case is the same with Global comm.
Before this transaction, I had transaction with Global com. On the 8/1/2014, I made a transaction with Global com. I cannot remember I bought goods worth five million four hundred and sixty five thousand naira from glo.
I am still the Managing Director Fatmax global. The agent of Globalcom in Minna gives me the account

number to pay the money, I purchased the goods to. We pay the money into the Don is account, and not Global account.
After paying into Don P’s account, the agent here will tell Global I have made the payment into Don P’s account and they will now give me the goods. I paid the amount in the name of my company Fatimax global company. If I collect the cards from Don P’s account, I don’t sign any document before collecting the cards.
I cannot remember signing any dealer document in May 2014. I paid 5 million to Qasim Bello, this Qasim Bello is Group Business director in Abia State. I am not aware that as global businessman in Niger State, I am restricted to purchase all my business goods in Niger State.
On 8/3/2014 Minna Global com did not have the stock so I went to Apia State to purchase. I know Qasim Bello as agent of Global com and nothing more than that.
Paragraph 9 of my statement is true. It is not correct to say that Global com and Green Bell is the same and one has the same account.
The 5 Million Naira I sent to Qasim Bello was for 10 CDs E.P. 100. The goods I mentioned at paragraph 16 was not delivered to me. I am not

aware that the cost of 100 CDs as at then was 7 million. I am not aware that Global com does not accept part-payment, I am not aware that Global com system is cash and carry you pay and get the goods.
Global com delivers their goods through Email. From the documents I generated from my mail, you can see that Qasim Bello delivered the documents through Glo to my Email.
I know Connel Olawuye he was an agent of Global com of Minna branch then. While he was here I never had transaction with him. While the Connell was here, I never sold Globalcom recharge card below 100.00 to 80.00 that is.
I was arrested on complaint of Connell by Global com and the Global com representative at Kaduna was not arrested. When I was arrested I was taken to state CID on basis of complaint of Connell Olawuye. There I did not plead for forgiveness. I do not have the letter I wrote to Qasim Bello to refund my money. I did not join Qasim Bello and Green Bell to the suit as he was suspended by Global com two months after this suit and do not even know his where about again.
Re-Examination:- why I said Green Bell and Global com are the same because is the agent of

Global com gave me directives to send money to that account We received the goods through physical and through any other means especially through Emails.”

While the claimant/Plaintiff claimed to have paid money into Appellant’s Account, the pleadings also show that the PW1 paid to GREEN BELL COMMUNICATION LIMITED at an Account No. 1013529331 with Zenith Bank.

He testified that he paid the N5,000,000 to the Appellant but the Zenith Bank Deposit Slip Exhibit B1 – B11 glaringly show that the monies were paid to GREEN BELL COMMUNICATION with no indication of what the monies were paid for. The payments in Exhibits B1 – B11 have no bearing with the Appellant.

A close perusal of Exhibits A – A16 also show transactions to Sterling Bank most of the time and none of the Exhibits show for once any payment to Appellant at Zenith Bank, GREEN BELL COMMUNICATION LIMITED. No one was called from Zenith Bank to testify to the effect that Appellant has been receiving monies for goods supplied to the Respondent by Appellant at or through ZENITH BANK.
In any event Exhibits A – A16 have no relevance to the case in this appeal.

Exhibits D1 and D2 are in the

name of Green Bell Communication Limited. As a matter of fact Exhibit D2 shows the customer’s name to be YUNUSA ISAH GODSON not the Respondent. The beneficiary of the monies is shown to be Green Bell Communication. The Respondent did not show any nexus between all the documents tendered in respect of the subject matter as relating to the Appellant. In other words, Respondent’s documents cannot be used as a hanger to test the testimonies of the PW1. The documents did not and do not in the least support the oral evidence of the Respondent’s evidence PW1’s evidence is not only at variance with the pleadings, the documents tendered did not support PW1’s testimonies.
See: MR. MELFORD AGALA & ORS VS CHIEF BENJAMIN OKUSUN & ORS (2010) 5 SCM 22 AT 371 per MUKHTAR, JSC later CJN Rtd. who said:-
“Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim.”
ALHAJI ADEBAYO AKANDE VS JIMOH ADISA & ANOR (2012) 15

NWLR (PART 1324) 538 AT 558 A – G per I.T. MUHAMMAD, JSC who said:-
“I think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections 135-137 of the Evidence Act, Cap 112 LFN, 1990 (Now Cap. E14 LFN, 2004). 1/135. (1) 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 facts exist.
136. “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137. “in civil cases the burden of first proving the 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 pleadings. ”
By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civil matters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right, which he claims from somebody (defendant) be restored to him. In our

adversarial system of adjudication, it is the practice and the law that the plaintiff should first lay his complaints before the Court by filing his pleadings. Next is that, where issues have been joined with him by the defendant then he shall go ahead to call evidence to establish each and every one of the averments and the evidence must tally. They go together. They are inseparable twins. They either survive together or perish together. Where there is an averment which has no corresponding evidence, it is deemed abandoned. Where there is evidence but there is no supporting averments, it is a worthless evidence. See: Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370: Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50; Oseni v. Bajalu (2009) 18 NWLR (Pt. 1172) 164.

The PW1 admitted under Cross examination that Green Bell Communications Limited is not the same as the Appellant. The Green Bell Communication Limited which PW1 admitted he paid is not shown by Respondent to be an Agent of the Appellant and under cross-examination PW1 said:
“l pay to Green Bell Communication Limited with Zenith Bank. The amount in Exhibit D1 and D2 amount to and the

whole amount was paid to Green Bell Communication Limited with reference to this case is the same with Globacomm.”
He also said:
“I cannot remember signing any dealer document in May, 2014. I paid to Qasim Bello, this Quasim Bello is Group Business Director Abia State.
And at the last paragraph page 136 of the record PW1 said
“paragraph 9 of my statement is true. It is not correct to say that Global Com, and Green Bell is the same and one has the same account.”
All these are admissions that no money (N5,000,000) was paid to Appellant on behalf of the Respondent. These are admissions against interest.
See (1) MR S. A. TAIWO V. S. ADEGBORO & ANOR (2011) 10 NWLR (PT. 1259) 562 at 583 H to 584 A – D per RHODES-VIVOUR JSC who said:
Section 75 of the Evidence Act states that:
No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleading.
Provided that the part may, in its

discretion, require the facts admitted to lie proved otherwise than by such admissions.”
See Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) p. 1.
Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact.
In effect, after an admission no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue. The fact in issue is whether 7 days’ notice was given by the auctioneer before the auction sale was conducted on 17/6/89.
Mr. Lambo Akanbi, learned counsel for the auctioneer in the Court of Appeal conceded that only one day’s notice was given by the auctioneer before the auction sale of the late Mr. M. Adegboro’s house was carried out on 17/6/89. The concession is an admission under Section 75 of the Evidence Act, and is conclusive on the issue.”
2. AISHA JUMAI AL-HASSAN & ORS VS. MR. DARIUS ISHAKU (PART 1520) 230 at 298 H to 299 A -C per SANUSI, JSC who said:
“An admission, to my understanding, is a statement oral or documentary, made by a person which suggests any inference as to any fact in issue

or relevant fact. See Narindex Ltd. v. NIMB Ltd. (2001) 4 SCNJ 208 at 220, (2001) 10 NWLR (Pt. 721) 321. See also Section 20 of Evidence Act, 2011.
It also means a statement by one of the parties to an action, which amounts to acknowledgement by him that one of the material facts relevant to the issues in controversy in the proceedings is not as he claims it to be. See NAS Ltd. v. UBA Plc (2005) All FWLR (Pt. 284) 275, (2005) 14 NWLR (Pt. 945) 421. Therefore, admission in my view, if it is clear, unequivocal, and cannot be said to be based on any misapprehension of any fact, is binding on the maker and such maker cannot be heard changing it subsequently or at a later stage to suit his supposed new or fresh case or averment. It is trite and well settled law, that where a party admits a fact in issue such fact in issue does not require any proof again. The Courts do not need proof of fact already admitted and further dispute in such facts should not be entertained since admission is the strongest and highest of the fact in issue.”

I am not mindful that Respondent said he paid some monies to Appellant vide Don P’s Account.

The Appellant tendered

Exhibits E – E1 to show that Appellant’s Bank send confirmation of payments of the said monies vide exhibits E and E1. This further confirms the case of the Appellant that the Respondent was and is aware of channel or procedure for purchases of Appellant’s products and the Bank to which monies should be paid that is STERLING BANK.

I agree with all the submissions of the Learned Counsel to the Appellant that the lower Court did not properly evaluate the pieces of evidence given by DW1 and documents tendered by DW1.

The Respondent failed to call QASIM BELLO to whom he paid monies and who Respondent said asked her to pay monies to Green Bell communication Limited who is not the said Qasim Bello principal and which was not proved to be Appellant’s Agent in any way.

To worsen the situation, Respondent neither joined Green Bell Communication Limited nor did it call Qasim Bello to confirm evidence of PW1. The evidence of PW1 to the effect that Qasim Bello asked Respondent to pay Green Bell Communications Limited remains hearsay.

The Court cannot rely on hearsay evidence to grant reliefs to a claimant. It is not admissible. See Section 38 of the Evidence Act

which says:
“Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”
See (I) SENATOR A. A. AJIMOBI V SENATOR R.A. LADOJA & ORS (2016) 10 NWLR (PART 1519) 87 at 159 D-E per ONNOGHEN, JSC now CJN.
(2)O. V. IKPEAZU V. ALEX OTTI & ORS (2016) 8 NWLR (PART 1573) 38 at 93 E-F per GALADIMA JSC.
Hearsay evidence is second hand evidence that has no probative value, see DOMA V INEC (2012) 13 NWLR PART (1317) 297 at 329 B. per RHODES-VIVOUR, JSC who said:
PW14 and PW44 testimony that there were malpractices in polling units they admitted they never went to which is evidence of what they were told or what they heard from someone else. This is second hand evidence, clear hearsay evidence and it is inadmissible to prove that there were actually malpractices in the polling units they never went to Hearsay evidence is thus inadmissible to prove that fact.”

The lower Court was wrong also in holding that the evidence of PW1 was not challenged. As a matter of fact the evidence of PW1 was destroyed under cross examination.

The evidence of the DW1 was not

discredited under cross examination. He (DW1) was not asked any question pertaining the position of Appellant that it did not authorize Qasim Bello to direct payment to Green Bell Communication and the fact that Appellant was not and is not the owner of Account No. 1013529331 which belongs to Green Bell Communication at Zenith Bank. The entire cross examination of DW1 reads:
“Cross Examination: – Witness looks at Exhibits E and E1. They are addressed to the defendant Global com my employers. I am now in Kaduna office of the defendant. The plaintiff is not transacting business with me in Kaduna, he is asking me to do some work for him but not with Global com in Kaduna. The work he gave me includes buying dealers products and sending to him in Minna.
As a manager we have no branded handset.
On Exhibit A1(2) entry of 10/2 on page 2 of the document – witness reads.
The entry I read is from Glo mobile. There are similar entries on Exhibit A1(3) Qasim Bello was a staff of Global com. He was also a manager. He was an authorized dealer. And such dealers were appointed by Globalcom.
The plaintiff, Fatmax was appointed by Global com in Niger

State. In the Court I do not have anything to show that the plaintiff’s dealership is restricted.
Re- Examination: Qasim Bello was a State Manager of Abia State.”

There was no cross examination on facts in issue at the lower Court and as submitted by Appellant’s counsel that there was no cross – examination on paragraphs 9, 10, 11, 13, 14 15, 16 17, 20 and 21 of DW’s witness statement on Oath as adopted by DW1. Respondent is deemed to have accepted the case put forward by the Appellant.

witness. Oforlete v. State (2000) 12 NWLR (Pt.681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (PART 70) 325 (1988) 2 SCNJ 146, this Court held that it is not proper for a defendant to cross examine a Plaintiff’s witness on a material point and to evidence on the matter after the Plaintiff had closed his case.”
The same is true here where the Plaintiff’s Learned Counsel failed to cross examine Appellant’s witness on material points over which issues were joined on the pleadings. The finding of lower Court is perverse and ought to be set aside.
See: ADIELE IHUNWO V JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA JSC said:
“It has been held that it is trite law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to evaluate its decision even on facts where after giving due regard to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See, Okhuarobo & Ors v Aigbe (supra).”
In the case of (1)

MOSES OKHUAROBO & ORS V CHIEF AIGBE (2002) 9 NWLR (PART 771) 29 AT 85 D-F the Supreme Court per AYOOLA, JSC said:-
“It is not only when there is no evidence to support a decision that the decision can be held perverse. Absence of proper evaluation of evidence and failure to draw appropriate inference from them can also amount to perversity where the inference is so clear that no reasonable tribunal would rail to draw them, or where inference drawn by the trial Judge does not follow from the evidence or the conclusion that should reasonably follow from the findings of fact made.”

Again the lower Court did not make finding as to whether the main relief succeeded or it was the alternative reliefs. A Court cannot grant both the main reliefs and reliefs claimed in the alternative. It is only when the main reliefs is not proved and they are refused that a trial Court would consider the claims in the alternative and grant same if there is evidence to support the alternative reliefs.

Furthermore, the Appellant’s Agent clearly went beyond the scope and authority of his Agency to the detriment of his Principal to direct payments of monies meant for his Principal

to a third party who has no business with his Principal. The Respondent knew very well that it ought not to have paid to Green Bell Communication Limited the sum of N5,000,000 it paid. The Appellant cannot from all the circumstances be held liable for the illegal act of his Agent QUASIM BELLO for he acted fraudulently and without authority.
See: MISS PROMISE MEKWUNYE VS. EMIRATES AIRLINES (2019) 6 SCM 32 at 901 to 91 A – D per PETER ODILI JSC who said:
“The question herein raised brings up the matter of agency and the principle guiding agency is already trite in law, in the case of Okwejiminor v Gbakeji (2008) 5 NWLR (Pt.1079) 172, (2008) 3 SCM, 134 Mohammed JSC defined the concept of agency thus:
“Agency is the relationship which exists or arises where one person called the agent, has the authority or capacity to create legal relations by acting on behalf of another person called the principal whereby the latter undertakes to be answerable for the lawful acts of the former provided it was done within the scope of the former’s authority, or ratified by the latter”. (Underlining mine).
In Bamgboye v Unilorin (1991) 8 NWLR (Pt. 207) 415, the Supreme Court

per Akintan JSC held thus:-
“An agency relationship exists only where a person called the agent has the authority to act on behalf of another called principal”.
In Jallco Ltd v Owoniboys Technical Services (1995) 4 NWLR (Pt.391) 534 this honourable Court held that-
“Under the doctrine of apparent or ostensible authority where a person by words or conduct represents to a third party that other has authority to act on his behalf he may be bound by the acts of that other as if he had in fact authorized them.”

Consequently the two issues are resolved in Appellant’s favour. The appeal of the Appellant has merit and it is hereby allowed.

The judgment of the High Court of Justice Niger State which held at MINNA delivered on 11th February, 2016 (Coram M. S. Zukogi – CJ) is hereby set aside in its entirety and in its stead an order is hereby made dismissing the Respondent’s action SUIT NO. NSHC/MN/228/2014 FATMAX GLOBAL VENTURES V. GLOBALCOM LIMITED.

Respondent shall pay cost of N200,000.00 (Two Hundred Thousand Naira) to the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just

delivered by my learned brother, Peter Olabisi lge, JCA.

My learned brother has elaborately dealt with the issues generated in this appeal. I agree with the reasoning and the conclusion thereat. I too, do allow this appeal and I abide by all the consequential orders inclusive of the order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I agree

Appearances:

BENJAMIN A. ADOKWU For Appellant(s)

EZRA ENWERE, Esq. For Respondent(s)