AROCOM GLOBAL INVESTMENT LTD v. UNITED PARCEL SERVICE LTD (2021)

AROCOM GLOBAL INVESTMENT LTD v. UNITED PARCEL SERVICE LTD

(2021)LCN/15039(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, February 08, 2021

CA/IB/8/2017

RATIO

CONSTITUENTS OF A COMPUTER GENERATED DOCUMENT

CONDITIONS TO BE SATISFIED BY A PARTY SEEKING TO TENDER A COMPUTER GENERATED DOCUMENT

A party that seeks to tender a computer generated document needs to do more than just tendering same from the bar. This is because the conditions specified for admissibility cannot be waived. The conditions set out in Section 84(2) of the Evidence Act 2011 must be strictly complied with for a computer generated document to be admissible in evidence. See KUBOR VS. DICKSON (2013) 4 NWLR (PT. 1345) P. 534 at 579. PER FOLASADE AYODEJI OJO, J.C.A.

WHETHER A CONFESSIONAL STATEMENT THAT CONTAINS ANSWERS TO QUESTIONS PUT TO THE ACCUSED CANNOT BE RELIED UPON TO CONVICT HIM

See NAGEBU & CO. NIG. LTD. VS. UNITY BANK PLC. (2014) 7 NWLR (Pt. 1405) 42 at 81 where the court held thus: “It is trite law that where a party fails to respond to business letter which by the nature of it’s content requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter.” See also UBA PLC VS. VERTEX AGRO LTD. (2019) LPELR – 48742 (CA); ONUIGBO VS. AZUBUIKE (2013) LPELR – 22796 (CA); TRADE BANK PLC. VS. CHAMI (2003) 13 NWLR (Pt. 336) Page 158 at 219 – 220; VASWANI VS. JOHNSON (2000) 11 NWLR (Pt. 679) Page 582; DOYIN MOTORS LTD. VS. SPDC (NIG.) LTD & ORS. (2018) LPELR – 44108 (CA); COOPERATIVE DEVELOPMENT BANK PLC VS. ARC. MFON EKANEM AND ORS; CHEMICAL ALLIED PRODUCTS PLC VS. VITAL INVESTMENTS LTD. (2006) 6 NWLR (Pt. 976) 220 at 267; ROPHOBOWE FACILITIES LTD. VS. BLAN (1966) 1 WLR 1428 and GWANI VS. EBULE (1990) 5 NWLR (Pt. 149) 201 at 207 to mention a few. PER FOLASADE AYODEJI OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

AROCOM GLOBAL INVESTMENT LIMITED APPELANT(S)

And

UNITED PARCEL SERVICE LIMITED RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court of Justice, Abeokuta Judicial Division in Suit No: AB/170/2013 delivered on 4th of October, 2016.

By an Amended Statement of Claim filed on the 16th of April, 2014, the Respondent who was the Claimant before the lower Court sought the following reliefs.
“12. Where upon the claimant claim against the Defendant the following:
a) Judgment for the sum of N13, 750,468:75 (Thirteen million, seven hundred and fifty Thousand, Four Hundred and Sixty Eight Naira, Seventy five kobo) being the outstanding indebtedness of the Defendant to the claimant for the cost of shipments of letters and other documents to various destinations within Nigeria made on behalf of the Defendant and on the Defendant’s instruction, and which sum is as set out in the various invoices and way bills sent to the Defendant by the Claimant between February, 2012 and January, 2013 respectively and which sum the Defendant has refused to pay despite several and repeated demands.

b) Interest on the indebted sum of N13,750,468.75 at the

rate of 21% per annum from the 1st of February, 2013 until the final liquidation of the debt and
c) For the cost of this suit”

The Appellant who was the Defendant at the lower Court filed an Amended Statement of defence wherein it denied all the claims of the Respondent. Parties having joined issues, the matter went on to trial.

At the trial, one Mr. Odejimi Oyekunle testified on behalf of the Respondent/Claimant. He adopted his written statement on oath and tendered several documents which were admitted in evidence. One Mr. Ola Olalekan testified on behalf of the Appellant/Defendant. He adopted his written statement on oath and tendered documents which were admitted in evidence. At the close of evidence, counsel on both sides filed and exchanged written addresses on behalf of the parties which they adopted as their oral submissions in support of the cases of the respective parties. In a considered judgment delivered on the 4th of October, 2016, the learned trial Judge found in favour of the Respondent/Claimant and granted his claim in part.

The Court at page 242 of the Record held thus:
“In the final analysis, the claimant’s claims succeed in part. Judgment is entered in favour of the Claimant as follows:

The Defendant is ordered to pay a sum of N13,750,468.75 (Thirteen million seven hundred and fifty thousand, Four hundred and sixty- eight Naira and seventy-five kobo) being the total indebtedness of the Defendant to the Claimant for the cost of shipments of letters and other documents to various destinations within Nigeria made on behalf of the Defendant and on the Defendant’s instructions and of which sum is as set out in the various invoices and waybills sent to the Defendant by the Claimant between February, 2012 and January, 2013 respectively and which sum the Defendant has refused to pay despite several and repeated demands.
2. Cost of N250.000 (Two hundred and fifty thousand Naira) is awarded in favour of the Claimant.

A summary of the facts that led to the dispute between the parties is as follows:
The Respondent is a corporate entity carrying on the business of courier services and warehousing of goods which services it renders to the Appellant regularly. The services were usually on credit for which payment was made monthly.

Between February 2012 and January 2013, the Respondent acting on the Appellant’s instruction carried out on its behalf shipments of letters and document to various destinations in Nigeria. As usual, it was on credit for which invoices and waybills were sent to the Appellant monthly. The total cost for the shipments done on behalf of the Appellant by the Respondent for this period was a total sum of N13,750,468.75 (Thirteen million seven hundred and fifty thousand, four hundred sixty- eight Naira and seventy-five kobo) which the Appellant failed to pay despite repeated demand.

The Appellant admitted it had been a credit customer of the Respondent for about ten years and had always paid its bills for all services rendered to it by the Respondent. That the services of the Respondent was also extended to Arocom Foundation since 2011, which paid regularly for the services rendered to it. The Appellant denied receipt of the disputed invoices and waybills allegedly sent to her. It alleged fraud in the invoices relied upon by the Respondent and denied indebtedness

For clarity, I find it expedient to highlight some of the findings of the trial Court in it’s judgment. They are:
i) That the case of KUBOR VS. DICKSON (2013) 26 WRN 15 at 59 – 60 is distinguishable from the case at hand in the sense that while in KUBOR VS. DICKSON, what was tendered and became the subject of appeal were online print-out of a newspaper edition and some Independent National electoral Commission (INEC) documents needing certification, in the case at hand Exhibits UPS 1 – UPS. K1 are original copies of invoices issued by the Respondent to the Appellant for some domestic shipments jobs. See page 211 of the Record.
ii) That Exhibits UPS 1 – UPS K1 were properly admitted under Section 86(2) and (4) of the Evidence Act (See page 211 of the Record).
iii) That Exhibit UPS “N” (Letter dated 22/8/2012 wherein the Appellant acknowledged it’s indebtedness to the Respondent) indicates that the Appellant owes the Respondent some money. (See page 213 of the Record).
iv) That the Appellant did not deny owing the Respondent the amount stated in Exhibits “UPS L” UPS M” and “UPS O” (Letters of demand for the sum of N13,750,468.75 (Thirteen million seven

hundred and sixty- eight Naira and seventy-five kobo) dated 17/12/2012, 11/02/2013 and 26/03/13 respectively (See page 213 of the Record).
v) That Exhibit “UPS P” (Respondent’s letter dated 16/04/2013 requesting the Appellant to confirm the amount of N13,749,628.75 as due and payable nailed the Appellants fate (See page 214 of the Record).
vi) That failure of the Appellant to dispute it’s indebtedness in Exhibit “UPS P” amount to an admission (Page 216 of the Record).
vii) That by Exhibits “UPS – 1 – UPS K1”, “UPS L”, “UPS M”, “UPS N” UPS O” and “UPS P”, the Respondent rendered domestic shipping services which the Appellant failed and refused to pay despite repeated demand. (See page 216 of the Record.)
viii) That the Appellant failed to convince the Court by credible evidence that AROCOM FOUNDATION and not it, owes the Respondent (See pages 216 – 217) of the Record.
ix) That Exhibit “D1” (Fin Bank returned cheque issued by AROCOM FOUNDATION to the Respondent dated 15/6/12); Exhibit “D2”

Appellant’s letter dated 25/10/2012 to the Director-General of AROCOM FOUNDATION; and Exhibit “D4” (AROCOM FOUNDATION’S letter dated 13/11/2012 to the Appellant, are of no moment and do not create any legal or contractual relationship between the Respondent and AROCOM FOUNDATION. They are afterthought and attempt to unduly shield the Appellant from it’s financial and contractual obligations to the Respondent (See page 217 of the Record.)
x) That facts relating to interest were neither pleaded in the Amended Statement of Claim nor established in the evidence of CW1 (Mrs. Oyekunle Odejimi) (See page 219 of the Record.)

The Appellant who is dissatisfied with the judgment of the trial Court filed the instant appeal. The Notice of Appeal containing eight (8) grounds of Appeal filed on 21st of December, 2016 is at pages 244 – 245 of the record. The record of Appeal was transmitted to this Court on the 11th of January, 2017.

Briefs of Argument were filed by parties as follows:
i) Appellant’s Brief of Argument was filed on the 17th of January, 2017.
ii) The Respondent’s brief of Argument filed

on the 28th February, 2017 was deemed as properly filed and served on 9th November, 2020.
iii) Appellant’s Reply Brief of Argument filed on 10th March, 2017 was deemed as properly filed on 9th of November, 2020.

At the hearing of this appeal on the 9th of November, 2020, learned counsel representing both parties adopted and relied on their respective briefs of argument. While the Appellant’s counsel argued in favour of allowing the appeal, counsel representing the Respondent submitted in favour of it’s dismissal.
Learned counsel to the Appellant identified and submitted the following five issues for the determination of this appeal:
“1) Whether Exhibit UPS “1 – 14”; UPS “ A1 – 11”; UPS “B1 – 4” UPS “1 – 8” UPS “D1 – 19”; UPS “E1 – 2”; UPS “F1 – 2” UPS “G1”; UPS “H1”, “UPS 11”, UPS “J1” and UPS “K1” are admissible in law and deserved probative value attached to them by the trial Court.
2) Whether Exhibits “UPSL”,

“UPS M” “UPS N” and UPS O” make the Appellant/Defendant liable to the Respondent/Claimant to the sum of N13,750,468.75 in spite of other admitted and undiscredited facts before the Court.
3) Whether in view of admitted and undiscredited facts of the Appellant/Defendant, the Exhibit UPS “P” has been with the Appellant/Defendant since 16th April, 2013 and not responding to the said Exhibit evidencing admission of the debt in question.
4) Whether Exhibit “D1” “D2” and “D4” deserve any probative value in determining the claim of the Respondent/Claimant
5) Whether the waybills of letters or documents or parcels credited to the Appellant/Defendant as the object of this suit have any probative value in determining the claims of the Respondent/Claimant and the effect to produce those waybills in spite of Notice to produce that was issued and served on the Respondent/Claimant.”

In the Respondent’s Brief of Argument the following four issues were formulated for the determination of this appeal to wit:

1) Whether the bundle of Exhibits UPS 1-14, UPS A1

– 11, UPS B1 – 4, UPS C1 – 8, UPS D1 – 19, UPS AE 1 – 2, UPS F1 – 2, UPS G1, UPS H1, UPS 11, UPS J1 and UPS K1 were properly admitted in evidence by the trial Court.
2) Whether the trial Court was right in holding that Exhibits UPS L, UPS M, UPS N and UPS O amounted to an admission of liability for the sum of N13,750,468.75 by the Appellant.
3) Whether the trial Court was right to adjudge the Appellant as the rightful Defendant in the suit at the trial Court.
4) Whether failure to produce documents purportedly in the custody of the Respondent after service of notice to produce by the Appellant amounted to admission of fact stated in these documents.

I have critically examined the issues formulated on behalf of both parties. I am of the very firm view that four (4) issues have arisen for determination in this appeal. The four issues are as identified in the Respondent’s Brief of Argument. I shall therefore proceed to take them serially.
ISSUE NO. 1
Whether the bundle of Exhibits UPS 1 – 14, UPS A1 – A11, UPS B1 – 4, UPS C1 – 8, UPS D1 – 19, UPS E1 – 2, UPS F1 – 2, UPS G1, UPS H1, UPS 11, UPS J1 and UPS K1 were properly admitted in evidence by the trial Court.

Learned counsel to the Appellant submitted that the above stated documents are computer generated documents under Section 84(1) of the Evidence Act 2011. That the conditions for their admissibility were not met and this being so, the trial Court erred in law when it admitted them in evidence. He cited the case of KUBOR VS. DICKSON (2013) 26 WRN 15 to support his submission. He submitted that the invoices admitted in error deserve no probative value. He cited the cases of G.U.O. OKEKE & SONS LTD. VS. USIFOR (2008) ALL FWLR (Pt. 428) 298; IGWEDIBIE VS. IGWEDIBIE (2013) 34 WRN 156 at 177; MOGAJI VS. ODOFIN (1978) 3 – 4 SC 91 and a host of others to support his submission.

He submitted further that the trial Court was wrong when it distinguished the case of KUBOR VS. DICKSON (2013) 26 WRN 15 from the case at hand and that by the combined provisions of Section 84 and 258 of the Evidence Act 2011, the Exhibits in question are not admissible in law. He urged us to resolve this issue in favour of the Appellant.

Learned counsel to the Respondent argued to the contrary on this issue. He submitted that the bundle of invoices are counterpart copies earlier served on the Appellant and on which Section 84 of the Evidence Act does not apply. This fact he said was pleaded in the Amended Statement of Claim. He referred us to paragraph 5 of the Amended Statement of Claim to submit that the Respondent clearly pleaded she will rely on the copies of the invoices at the trial. He urged us to hold that the invoices were properly admitted in evidence by virtue of Section 86(2) & (4) of the Evidence Act. He called in aid of his submission the cases of JACOB VS. ATTORNEY-GENERAL OF AKWA IBOM STATE (2002) FWLR (PT. 86) 578, AKANO VS. ILORIN EMIRATE COUNCIL (2001) FWLR (PT. 42) 59 at 80; and AIYEAGBU VS. OZOR (1999) 4 NWLR (PT. 598) 184.

He argued that the case of KUBOR vs. DICKSON (supra) does not avail the Appellant because what was tendered and which was the subject of appeal in KUBOR’S case were online print out of a Newspaper Edition and some INEC documents. He also pointed out that the decision of the Court in that appeal was that the documents were public documents which required

certification. He emphasized that Exhibits UPS 1 – UPS K1 in the instant appeal are original copies of invoices issued to the Appellant for some domestic shipment jobs carried out on its behalf.
He urged us to affirm the decision of the trial Court and resolve this issue against the Appellant.

In his reply brief, learned counsel submitted that the Respondent’s argument is not supported by evidence. He admitted that the attempt by Respondent’s counsel to replace the evidence on record with his argument has no place in law. He relied on the cases of DAME PAULLINE TALLEN & ORS. VS. DAVID JONAH JANG & ORS. 2011 LPELR – 9231 (CA) 29 PARAS. A – C; WOWO & ORS VS. SIDI ALLI & ORS (2009) LPELR CA/A/EPT/313/08; NEKA BBB MANUFACTURING CO. LTD. VS. ACB LTD. (2004) 2 NWLR (Pt. 858) 521 and DARAMOLA VS. ATTORNEY GENERAL OF ONDO STATE (2000) 7 NWLR (Pt. 655) 441 to support his argument.

The bone of contention under this issue is whether or not Exhibits UPS 1–14, UPS A1–11, UPS B1–4, UPS C1– 8, UPS D1–D119, UPS E1–2, UPS F1–2, UPS G1, UPS H1, UPS 11, and UPS K1 are computer generated documents which require compliance with Section 84 of the Evidence Act, 2011 to be admissible.

Section 84(1) of the Evidence Act provides thus:
“In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.”
Subsection 4 of Section 84 of the Evidence Act 2011 provides as follows:
“In any proceeding where it is desired to give a statement in evidence by virtue of this Section, a certificate:
(a) Identifying the document containing the statement and describing the manner in which it was produced.
(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above related, and purporting to be signed by a person occupying a responsible

position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be.”
Subsection 5 of Section 84 (supra) provides thus:
“For the purpose of this section –
(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise that in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”

There is nothing on record to qualify the bundle of waybills and invoices in contention as computer–generated documents. They do not qualify as such and I so hold. I find the provision of Section 84(2) of the Evidence Act 2011 very relevant. It provides as follows:
“(2) The conditions referred to in Subsection (1)of this Section are –
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period, there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or was out of operation during that part of that period but not such as to affect the production of the document or the accuracy of its contents; and
(d) That the information contained in the statement reproduces or is derived from the information supplied to the computer in the ordinary course of those activities.”

Any device for storing and processing information forms part of the definition of computer within the contemplation of Section 258(1) of the Evidence Act. See LANLEHIN VS. AKANBI & ORS (2015) LPELR – 42147 (CA.) A computer generated document comprises of documents downloaded from the internet. See ROSEHILL LTD. VS. GTB PLC. (2016) LPELR – 41665 (CA). A party that seeks to tender a computer generated document needs to do more than just tendering same from the bar. This is because the conditions specified for admissibility cannot be waived. The conditions set out in Section 84(2) of the Evidence Act 2011 must be strictly complied with for a computer generated document to be admissible in evidence. See KUBOR VS. DICKSON (2013) 4 NWLR (PT. 1345) P. 534 at 579.

I have critically examined the record and it is my view that the bundle of invoices which were tendered and admitted in evidence as Exhibits are counterpart copies of the copies which were served on the Appellant. This was not denied by the Appellant. Furthermore, at paragraph 5 of the Amended Statement of Claim, the

Respondent pleaded that it would be relying on copies of the invoices during the trial. The said paragraph reads thus:
“5 The Claimant always sent to the Defendant its invoices together with waybills for each shipment per month for settlement but the Defendant failed to make payment for each of these invoices per month. The Claimant will rely on copies of these invoices at the trial of this suit.

While answering question put to him under cross examination, CW1 (Mr. Odejimi Oyekunle) at page 139 of the record said:
“Our waybills are in the tripartite (3 copies) the original copy is usually in the custody of the client i.e. 1st copy.
The 2nd copy goes with the package and the 3rd copy comes to us i.e. UPS which we use to raise what we sent to customers.”

While admitting the bundle of documents in evidence, the learned trial Judge at page 137 of the record held as follows:
“The bundle of documents now sought to be tendered as invoices are pleaded in Paragraph 5 of the Amended Statement of Claim. The documents are relevant as pleaded. Section 84 of the Evidence Act is inapplicable to these documents. The

bundles of documents are therefore admitted as Exhibits UPS 1 –14, UPS A1 – 11, UPS B1 – 4, UPS C1 – 8, UPS D1 – 19, UPS E1 – E2, UPS F1 – 2, UPS G1, UPS H1, UPS 11, UPS J1, UPS K1 accordingly.”
In his judgment, the trial judge at page 211 of the record held as follows:
“My simple answer to this issue is that the case of KUBOR VS. DICKSON is distinguishable from this case. In KUBOR VS. DICKSON what was tendered and became the subject of appeal were online print outs of a newspaper edition and some Independent National Electoral Commission (INEC) documents. The Court then held that the documents were public documents and ought to have been certified before they were tendered from the Bar. In the instant case Exhibit UPS 1 – UPS K1 are original copies of invoices issued to the Defendant for some domestic shipments jobs done for the Defendant by the Claimant and tendered through the CW1 who referred to the documents in paragraph 6 of his statement on oath.
I therefore agree with learned counsel for the claim and that the documents were properly admitted in evidence under Section 86(2) and (4) of the Evidence Act.”

I have carefully gone through the case of KUBOR VS. DICKSON (supra) and I am of the view that it does not support the Appellant’s case. I agree with the findings of the trial Court expressed above and I adopt them as mine. The provisions of Section 86(2) and (4) of the Evidence Act, 2011 are very relevant and are reproduced hereunder:
“Section 86
(2) Where a document has been executed in several parts each part shall be primary evidence of the document.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing lithography, photocopy, computer or other electronic or mechanical process, each shall be primary evidence of the content of the rest, but where they are copies of a common original, they shall not be primary evidence of the content of the original.”
On the whole, it is my considered view that the bundle of documents (invoices) admitted in evidence by the trial Court were properly admitted. They do not fall within the purview of Section 84 of the Evidence Act, 2011. The trial Court was thus right when it relied on them in finding against

the Appellant. I wish to emphasise that the case of KUBOR VS DICKSON (supra) is distinguishable from the facts culminating into this appeal. What was tendered and became the subject of appeal in that case were online print-outs of a newspaper edition and some INEC documents requiring certification and compliance with Section 84 of the Evidence Act 2011. This is not the situation in the instant appeal. Exhibits UPS A1–UPS K1 are original copies of invoices issued to the Appellant and they were properly admitted in evidence under Section 86 (2) and (4) of the Evidence Act 2011. My conclusion on this issue is that it is resolved against the Appellant.

ISSUE 2
Whether the trial Court was right in holding that Exhibits UPS L, UPS M, UPS N and UPS O amounted to an admission of liability for the sum of N13,750,468.75k by the Appellant.

Appellant’s counsel argued this issue under his issues 2 and 3. He submitted that notwithstanding, Exhibits UPS L, UPS M, UPS N and UPS O (Letters of demand dated 17/12/2012, 11/02/2013 and 26/03/2013 as well as Appellant’s letter requesting for time to pay dated 22/08/2012, the Appellant’s consistent position was that she did not owe the Respondent. He said Exhibit “UPS N” was written in error.

He pointed out that after the Appellant communicated its final position, the Respondent accepted it. He insisted Exhibit “UPS N” was written in error and that Exhibit “UPS O” (the letter of demand dated 26/03/2013) was not served on the Appellant. He submitted that the trial Court was in error when it found that Exhibit “UPS N” (Appellant’s letter dated 22/08/2012 in which it requested for more time to pay) amounted to an admission and that Exhibits UPS L, UPS M and UPS O are letters of demand made to the Appellant. He relied on the case of NDULUE VS. OJIAKOR (2013) 30 WRN 27 at 53 LINES 25 – 35, YUSUF VS. OMOKANYE (2013) 11 WRN 112 at lines 5 – 10 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107 at 127 line 40 to support his position.

Counsel submitted further that the Appellant could not reasonably be expected to respond to the Respondent’s letter(s) of demand since the matter was subjudice and citedAMAECHI VS. INEC (2008) 5 NWLR (Pt. 108) 227 at 445 – 446 pars G –

B.H.M.S. LTD VS. FIRST BANK (1991) 1 NWLR (Pt. 167) 290 at 312 – 313, M.W.T. (NIG.) LTD VS. P.T.F. (2007) 15 NWLR (Pt. 1058) 451 at 495 – 496 paras F.A as well as the unreported case of NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD & ORS VS. KLIFCO NIGERIA LIMITED (SC) 288/2005 P. 13 – 14 to buttress his point. He argued further that Exhibit UPS N did not disclose the outstanding debt and was not connected to the letters of demand. He submitted that the Respondent failed to prove the existence of the debt and did not prove his case but only relied on Appellant’s own weakness to establish its case. He cited the cases ofUBA VS. FROZEN FOOD (NIG.) LTD. APPEAL NO. CA/PH/15/2000 reported online, OKAFOR VS. A.P. (NIG.) LTD. (1996) 5 NWLR (Pt. 45) 674 at 690 Paragraphs A – F andPEREVA VS. MOTOR AND GENERAL INSURANCE CO. LTD (1971) 2 ALL NLR 261 to support his position.

On the point that the Appellant could not be reasonably expected to respond to Exhibit UPS O (letter of demand dated 26/03/2013, counsel cited the cases of OMIYALE VS. MACAULY (2009) 7 NWLR (Pt. 1141) 597 at 618 paras C – D, 625 paras C – F,

and 626 paras F – G, ADAKOLE VS. OGBUAGU (2015) ALL FWLR (Pt. 782) 1751 at 1781 para E and IKELI VS. AGBER (2015) ALL FWLR (Pt. 785) 296 at 326 para B to support his position. He finally urged us to resolve this issue in favour of the Appellant.

Arguing per contra learned counsel to the Respondent submitted that DW1 (Ola Olalekan) who testified on behalf of the Appellant did not deny the existence of the various letters of demand. He also did not deny the existence of Exhibit UPS N which is the Appellant’s letter acknowledging it’s indebtedness and request for more time to pay but only said it was written in error.

Respondent’s Counsel urged us to note that Exhibits “UPS N” “UPS M” “UPS O” and “UPS P” clearly show that the outstanding debt is N13,750,468.75k and emphasized that Exhibit “UPS N” is an admission of indebtedness by the Appellant. He cited the case of CAPPA & D’ALBERTO LTD. VS. AKINTILO (2003) NWLR (Pt. 824) 49 at 69, and IFEANYI CHUKWU T.I.U LTD. VS. O.C.B. LTD. (2015) 17 NWLR 1487 as well as Section 20 of the Evidence Act 2011 in support.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For ease of reference I shall identify the exhibits.
i) Exhibit “UPS L” is the Respondent’s letter of 17/12/2012 demanding for payment of the outstanding sum of N13,749,628.75k from the Appellant. It was tendered in evidence through CW1 (Mr. Kunle Odejimi) and admitted in evidence on 16/10/2014. (See page 137 of the Record).
ii) Exhibit “UPS M” is the Respondent’s letter of 11/02/2013 demanding for payment of the outstanding sum of N13,749,628.75k. It was tendered through CW1 (Mr. Kunle Odejimi) and admitted in evidence on 16/10/2014. (See page 137 of the Record).
iii) Exhibit “UPS N” is the Appellant’s letter dated 22/08/2012 to the Respondent admitting it’s debt and requesting for ninety (90) days of grace to commence payment. It was tendered through CW1 (Mr. Kunle Odejimi) and admitted in evidence on 16/10/2014 (See page 138 of the Record) and
iv) Exhibit “UPS O” is a letter of demand from Messrs Ogunniyi Oguntola & Co. (Respondent’s Lawyer’s dated 26/03/2013 wherein Counsel demanded for payment of the indebted sum of N13,750,468.75k. It was tendered through CW1 (Mr. Kunle Odejimi) and admitted in evidence on 16/10/2014. (See page 138 of the Record.)

I wish to note that no specific amount is indicated in Exhibit “UPS N” as the outstanding debt. I have however, critically examined the letter and I have no doubt it is a clear admission of the Appellant’s indebtedness to the Respondent. The question now is, whether the sum of N13,750,468.75K claimed and which the lower Court granted is what is owed the Respondent by the Appellant.

It is to be noted that the sum of N13,750,468.75K was specifically mentioned in Exhibit “UPS L”, “UPS M” and “UPS O”. See pages 108, 109 and 73 of the Record. Interestingly, the Appellant did not deny owing the Respondent the said sum clearly stated in those exhibits.

My considered and firm view is that the Appellant had a duty to respond to the Respondent’s letter of demand (Exhibits “UPS L”, UPS M” and “UPS O” ) if it had reason to dispute their content. Failure to do so amounts to an admission. SeeNAGEBU & CO. NIG. LTD. VS. UNITY BANK PLC. (2014) 7 NWLR (Pt. 1405) 42 at 81 where the court held thus:

“It is trite law that where a party fails to respond to business letter which by the nature of it’s content requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter.”
See also UBA PLC VS. VERTEX AGRO LTD. (2019) LPELR – 48742 (CA); ONUIGBO VS. AZUBUIKE (2013) LPELR – 22796 (CA); TRADE BANK PLC. VS. CHAMI (2003) 13 NWLR (Pt. 336) Page 158 at 219 – 220; VASWANI VS. JOHNSON (2000) 11 NWLR (Pt. 679) Page 582; DOYIN MOTORS LTD. VS. SPDC (NIG.) LTD & ORS. (2018) LPELR – 44108 (CA); COOPERATIVE DEVELOPMENT BANK PLC VS. ARC. MFON EKANEM AND ORS; CHEMICAL ALLIED PRODUCTS PLC VS. VITAL INVESTMENTS LTD. (2006) 6 NWLR (Pt. 976) 220 at 267; ROPHOBOWE FACILITIES LTD. VS. BLAN (1966) 1 WLR 1428 and GWANI VS. EBULE (1990) 5 NWLR (Pt. 149) 201 at 207 to mention a few.

The Respondent tendered Exhibit “UPS P” (letter dated 16/04/2013 titled CONFIRMATION OF BALANCE). See pages 129 and 140 of the Record. In that exhibit, the Respondent requested the Appellant to confirm the amount due as at 16/04/2013 to be

N13,749,628.75K. Again, the Appellant did not respond. The Appellant failed in its duty to dispute the sum of N13,749,628.75k outstanding against it. To my mind, this failure is tantamount to an admission and I so hold. See NAGEBU COMPANY (NIG) LTD. VS. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) 42 at 81. KARIMAT GLOBAL TRADE LINKS LTD. & ANOR VS. UNITY BANK PLC (2014) LPELR – 23986 (CA) and INTIME CONNECTION LTD. VS. ICHIE (2009) LPELR – 8772 at page 20 Paras D – G.

I have examined the record and I agree with the trial Court that it can be safely inferred from Exhibits UPS 1 – UPS K1, UPS L, UPS M, UPS N, UPS O and UPS P, that the Respondent rendered domestic shipping services to the Appellant which were not paid for despite repeated demand. I am also of the view and hold that the Appellant did not discharge the burden on it that the debt is owed by AROCOM FOUNDATON. Exhibits “D1” (Fin Bank returned cheque dated 15/06/12 and issued by AROCOM FOUNDATION to the Respondent); D2 (Appellant’s letter to the Director-General of AROCOM FOUNDATION and Exhibit D4 (AROCOM FOUNDATION’S letter to the Appellant dated

13/11/2012, do not create any legal or contractual relationship between the Respondent and AROCOM FOUNDATION.

I agree with the trial Court that Exhibits “UPS L” “UPS M” “UPS N” and “UPS O” constitute the Appellant’s admission of liability for the sum of N13,750,468.75k.
This issue is also resolved against the Appellant.

ISSUE 3
Whether the trial Court was right to adjudge the Appellant as the proper Defendant in the suit.
The contention of the Appellant under this issue is that all transactions with the Respondent between August, 2011 and March, 2013 were with AROCOM FOUNDATION and which services were duly paid for. He submitted that both the Appellant and AROCOM FOUNDATION know nothing about the letter and/or documents the subject of the pleaded invoices and waybills relied on by the Respondents.

Appellant’s counsel further submitted that neither the Appellant nor AROCOM FOUNDATION is liable to the Respondent in the sum claimed or any sum at all. He argued that the facts contained in Exhibits D1, D2 and D4 (FIN BANK returned cheque, letter dated 25/10/2012 and

13/11/2012 respectively were not denied or disputed by the Respondent. This he submitted is tantamount to admission. He cited the cases of NDULUE VS. OJIAKOR (2013) 30 WRN 27; YUSUF VS. OMOKANYE (2013) 11 WRN 112 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107 to support his submission.

He also submitted that the trial Court failed to confine itself to the issue in dispute when it held that Exhibits D1, D2 and D4 are after thoughts and an attempt to unduly shield the Appellant. He submitted that a Court is bound to confine itself to the evidence presented before it and cited the cases of FBN PLC. VS. ACB LTD. (2006) 1 NWLR (PT. 962) 438; NBC PLC VS. OBOH (2000) 11 NWLR (PT. 677) 212 and UTC VS. NWOKORUKU (1993) 3 NWLR (PT. 281) 295. IKENYE VS. OFUNE (1985) 2 NWLR (PT. 5) 1 and ANYAKPELE VS. NIGERIAN ARMY (200) 13 NWLR (PT. 684) 209. He finally urged us to resolve this issue in favour of the Appellant.

Respondent’s counsel for his part submitted that the Appellant did not prove that there is privity of contract between AROCOM FOUNDATION and the Respondent in respect of the debt and cited THOMAS CHUKWUMA MAKWE VS. CHIEF OBAMA NWUKOR (2001) 32 WRN 1

(SC) to support his submission. He drew our attention to the evidence of DW1 (Mr. Ola Olalekan) where he admitted under cross examination that Exhibit UPS 1 – 11 (bundle of invoices and Exhibits D3 and D3A (payment receipts were issued to the Appellant and that Exhibit D2 (letter written by the Appellant) was addressed to AROCOM FOUNDATION and not the Respondent. He urged us to resolve this issue against the Appellant.

I wish to state from the onset in resolving this issue that there is nothing on record to show or suggest that the contract of shipment culminating in this appeal was between the Respondent and AROCOM FOUNDATION.

A consideration of the following exhibits is very germane in the resolution of this issue.
i) Exhibit D1 – Fin Bank cheque No: 09340701 dated 15/06/2012 for the sum of N711, 385:59 (Seven hundred and eleven thousand Three hundred and fifty five Naira fifty Nine Kobo (See pages 151 and 160 of the Record.
ii) Exhibit D2 – Appellant’s letter to the management staff of AROCOM FOUNDATION dated 25/10/2012 in respect of the debt credited to the Appellant (See pages 151 and 160 of the record.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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iii) Exhibit D3 – AROCOM FOUNDATION Receipt No: 16/9409 dated 19/06/2012 evidencing payment to the Respondent. (See pages 152 and 161 of the Record) and
iv) Exhibit D4 – AROCOM FOUNDATION’S letter to the Appellant dated 12/12/2012 (See pages 152 and 161 of the Record.

Exhibits D1 – D4 do not disclose any privity of contract involving the Respondent. They are communication between the Appellant and AROCOM FOUNDATION. (Appellant’s Subsidiary Company).

While answering questions put to him under cross examination DW1 at pages 165 – 166 of the record stated thus:
“I have seen Exhibits UPS A1 – 11. The exhibits were addressed to AROCOM Global Investment Limited. I have also seen Exhibit SD3 and D3A. They are issued in the name of Arocom Global Investment Limited. Exhibit D2 is addressed to AROCOM FOUNDATION and not to the Claimant.”

It is for the above that I hold that Exhibits D1 – D4 lack probative value. They are afterthought and attempt to shield the Appellant from its financial obligation to the Respondent. The Appellant is the proper defendant in Suit No: AB/170/2013 from

which this appeal emanated. The trial Court was right when it held as such.
This issue is again resolved against the Appellant.

ISSUE NOS. 4
Whether failure to produce documents purportedly in the custody of the Respondent after service of Notice to produce by the Appellant amounted to admission of fact stated in those documents.
Learned counsel to the Appellant drew our attention to the fact that the Appellant denied receiving waybills, and documents as well as invoices for the months of May 2012, August, 2012 and 2013 thereby joining issues with the Respondent on both the existence of the debt and service of waybills and invoices. He submitted that having joined issues the onus was on the Respondent to prove the existence of the debt and service of the bundle of documents. He relied on the provision of Section 132 and 133 of the Evidence Act, 2011 and the cases ofPHILLIPS VS. EBA ODAN COMMERCIAL AND INDUSTRIAL CO. LTD. (2013) 7 WRN 1 AT 22 lines 15-25; RABIU VS. AMADU (2013) 6 WRN 1 AT 16 LINE 25; AYORINDE VS. SOGUNRO (2013) 1 WRN 1 at 18 – 19 lines 4 – 5; OGUNNUHU VS. CHIEGBOKA (2013) 32 WRN 1 AT 21 LINES 25-40; MATANMI VS DADA (2013) 31 WRN 1 AT 12-13 LINES 3-5 to support his position.

It is further the argument of counsel that the Respondent did not honour the notice to produce served on her and urged us to invoke the provision of Section 167 (e) of the Evidence Act 2011 against her. He further urged us to hold that failure to comply with the Notice to produce entitled the Appellant to adduce secondary evidence. He cited Section 89 (a) (1) and 90 (1) (a) of the Evidence Act 2011 in support and relied on the cases of BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1 AT 236 PARAS A-C, 262-263 PARAS H-A; UBN PLC VS. IDRISU (1999) 7 NWLR (PT. 609) 105 and GBADAMOSI VS. KABO TRAVELS LTD. (2000) 8 NWLR (PT. 668) 243 to buttress his point. He urged us to resolve the issue in favour of the Appellant.

Respondent’s counsel submitted to the contrary. He drew our attention to the evidence of CW1 under cross examination that the waybills are in tripartite copies with the original in the custody of the Appellant. That since the original was with the Appellant, there was nothing for the Respondent to produce at the trial. He cited the cases of YUSUF VS. OBASANJO (2001) FWLR

(PT. 294) 387 & 476 PARAS B-F and UBN LTD. VS. IDRISU (1997) 7 NWLR (PT. 609) AT 118-119 PARAGRAPH H to submit that a person, on whom notice is served to produce documents is not obliged to produce same or tender the documents named in the notice. In such situation, the party that issued the notice once satisfied that the opponent has failed to produce the document may tender secondary evidence. He maintained the Appellant was entitled to tender secondary evidence if he wished. He referred us to Section 89 of the Evidence Act 2011 and urged us to resolve this issue against the Appellant.

CW1 (Mr. Kunle Odejimi) under cross examination at page 139 of the record said,
“Our bills is in tripartite (3) copies, the original copy is usually in the custody of the client i.e. the 1st copy. The 2nd copy goes with the package and the 3rd copy comes to us i.e. UPS which we use to raise the invoice that we send to customers…..”
From the facts on record, I hold that the present circumstance allows the Appellant to tender secondary evidence of the waybills it requested the Respondent to produce. In BUHARI & ANOR. VS. OBASANJO & ORS. (2005) LPELR–815 (SC), the Supreme Court per Belgore J.S.C. at page 154 Paragraphs D-E said:

“In Notice to produce procedure, it is supposed that the person asking for the document knows of the contents, perhaps has a copy of it. If the person to produce fails to produce it, the secondary evidence of it can be admitted in evidence.”
Also in EZEJIOBI VS. EBEGU (2016) LPELR–40507 (CA), this Court held as follows:
“……. and where a notice to produce the original has been given to the adverse party considered to be in possession of the original, the Court is entitled to admit into evidence, the copy tendered where the original is not produced before Court.”
See ANAJA VS. UBA (2011) ALL FWLR (PT. 600) 1289 AT 1310 PARAS E-G; DUNIYA VS. JIMOH (1994) 3 NWLR (PT. 334) 609 and OKONJI VS. NJOKANMA (1999) 14 NWLR (PT. 638) 250. See also Section 89 (a) and 90 (1) (a) of the Evidence Act 2011.
If the Appellant was interested in making use of the waybills and other documents, he had the option of tendering the secondary evidence but he did not do so. The provision of Section 167 (d) of the of the Evidence Act

does not apply to this appeal and I so hold. Failure of the Respondent to produce documents purportedly in its custody after service of notice to produce by the Appellants does not amount to admission of the facts contained in the documents and I so hold.
This issue is resolved against the Appellant.

In conclusion, having resolved all the four issues in this appeal against the Appellant, it follows that this appeal is devoid of merit and should be dismissed and it is hereby dismissed. I affirm the judgment of the trial Court delivered in Suit No: AB/170/2013 delivered on 4th October, 2016.
I order N100,000 as costs in favour of the Respondent and against the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Judgment of my Lord FOLASADE AYODEJI OJO, J.C.A. just delivered.
My Lord has dealt with the issue in this Appeal in a lucid manner and I agree with the reasons given as well as the conclusions reached.
I am also of the view that the Appeal lacks merit and it is dismissed by me.
I abide by the consequential Orders made in the said lead judgment including the order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the draft of the Judgment delivered my learned brother, FOLASADE AYODEJI OJO, J.C.A.

My learned brother has comprehensively and admirably considered and resolved all the issues that were raised for determination in this appeal. I agree with the reasoning and conclusions made by my learned brother on those issues. This appeal, therefore, lacks merit and is hereby dismissed. I abide by the consequential order on costs.

Appearances:

OLAIDE ARO For Appellant(s)

S. MAKINDE For Respondent(s)