CHRISTIAN v. UMARA & ANOR
(2021)LCN/15137(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 03, 2021
CA/G/73/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MOSES CHRISTIAN APPELANT(S)
And
1. BABAGANA UMARA 2. INTERNATIONAL ORGANISATION FOR IMIGRATION RESPONDENT(S)
RATIO
WHETHER AN ORAL AGREEMENT FREELY ENTERED INTO BY PARTIES IS BINDING ON THE PARTIES
… the law is settled that an oral agreement freely entered into by parties is binding on the parties and gives rise to an enforceable contract. See J. F. OSHEVIRE LTD VS TRIPOLI MOTOR LTD (1997) 5NMLR (PT 503) 1; OMEGA BANK (NIG) PLC VS OBC LTD (2002) 16NWLR (PT 794) 483. There must however be a definite offer and acceptance and consideration. The intention and purpose must be mutual. See DAHIRU VS KAMALE (2001) FWLR PT. 62 P. 1853. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
WHETHER THE PARTY WHO ASSERTS MUST PROVE HIS ASSERTION
He who asserts must prove. See Section 131 of the Evidence Act 2011; see also DASUKI VS FRN & ORS (2018) 10 NWLR (PT 1627) 7 NWLR PT. 1618 P. 366. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the appellant against the decision of the High Court of Borno State in Suit No. BOHC/MG/CV/83M/2018 delivered on 13th February, 2019.
The claimant at the lower Court is now the 1st respondent in this Court. The claimant by paragraph 13 of his statement of claim claimed as follows:
a. The sum of N10,888,000.00 being remaining balance of payment of building materials supplied to the defendants.
b. Cost of the suit.
Parties filed and exchanged pleadings. After hearing the parties the learned trial judge entered judgment in favour of the claimant in the following terms:
“Having resolved all issue 1-3 above in favour of the claimant, taken into consideration the pleadings filed, exhibits tendered, testimony of all witnesses having evaluate same. I am of the firm view that the claim is entitled to the outstanding balance of N8,365,500,00k from the Defendant. All the issues have been resolved in favour of the claimant, the claimant is entitled to judgment, judgment is therefore entitled for the claimant in the following terms:
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- The name of the 2nd Defendant is hereby struck out (International Organization for Maiduguri).
2. The Defendant is hereby ordered to pay the outstanding balance of N8, 365,500,00k to the claimant immediately.
3. Cost of N50,000.00k is awarded in favour of the claimant.
I so ordered.”
Miffed by the above decision the appellant filed notice of appeal 20th February, 2019 to challenge it on three grounds:
– GROUND ONE: The learned trial judge erred in law and on the fact when he held that the appellant is owing the 1st Respondent when no credible evidence of the Appellant’s alleged indebtedness was placed before the lower Court.
– GROUND TWO: The learned trial judge erred when he held the Appellant indebted to the 1st respondent in the sum of N8,635,000.00 in the absence of credit evidence in proof of same.
– GROUND THREE: The judgment is against the weight of evidence.
FACTS OF THE CASE
A contract was awarded to the 1st defendant by the 2nd defendant sometime in January 2017 in which the 1st defendant was to supply goods worth N34,888,000 with the assistance of the 1st Respondent (the claimant) the goods were
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supplied. At the end of the date, the claimant claimed that an outstanding balance of N10,888,000 was yet to be paid back to him. Hence this action.
BRIEFS OF ARGUMENT
After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
The Appellant’s brief of argument was prepared by his counsel NANKHAM AYUBA DAMMO. It was filed on 7th March, 2019.
The brief of 1st Respondent was settled by A.S BADAGUBI his counsel. It was filed on 11th April, 2019.
ISSUES
Both counsel for the parties articulated one sole issue for determination.
Learned counsel of the appellant proposed the following issue for determination:
WHETHER UPON THE PLEADINGS AND EVIDENCE ON RECORD, THE LOWER COURT WAS NOT WRONG WHEN IT ENTERED JUDGMENT FOR THE 1ST RESPONDENT AND AWARDED HIM THE SUM OF N8,365,500,00k AS THE ALLEGED OUTSTANDING BALANCE OWED HIM BY THE APPELLANT.
The 1st Respondents counsel also identified one sole issue for determination:
WHETHER OR NOT UPON THE PLEADINGS AND EVIDENCE ON RECORD, THE 1ST RESPONDENT WAS ENTERED TO THE JUDGMENT OF THE TRIAL COURT.
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I shall adopt the sole issue as framed by the appellant in this judgment.
SUBMISSIONS OF COUNSEL
NANKHAM AYUBA DAMMO for the appellant submitted that the relationship between the appellant and the respondent was that of a buyer and seller when he purchased goods from the respondent and paid for it. He stated that no evidence was adduced on the quantity of the building materials the appellant requested him to supply, to whom the supply was made and the consideration agreed upon by the parties.
He submitted that a claim for an unpaid balance sum was a claim for special damages which must be pleaded and strictly proved by the party alleging it. He cited MBATA VS AMANZE (2018) 15 NWLR PT 1643 P. 570 at 5895.
He contended that the 1st Respondent failed to established a valid contract between him and appellant and did not establish by credible evidence the special damage being claimed.
Learned counsel submitted that the decision of the lower Court was erroneous and urged the Court to resolve the lone issue in favour of the appellant.
In his submission Y. Z. ASHEMI for the 1st Respondent contended that there existed a contract between the appellant and the 1st
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Respondent and a business transaction worth N34,880,000. He submitted that from the evidence of the appellant and that of DW1 – DW3 there was an offer, acceptance and a consideration of N2.5M paid by the appellant. He submitted that the appellant pleaded the quantity of each of the goods supplied, their prices, the amount paid by the appellant and the outstanding balance of N10,880,000 which the appellant failed to pay. He added that the said evidence was not challenged by the appellant.
He urged the Court to act upon the evidence. He cited OBULOR VS OBOR (2001) FWLR pt. 47 p. 1004.
He urged the Court to affirm the decision of the trial Court and dismiss the appeal.
RESOLUTION OF ISSUE
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.
This appeal turns on the interpretation of the oral contract between the parties. It is clear the terms of the agreement are not in writing. However, the law is settled that an oral agreement freely entered into by parties is binding on the parties and gives rise to an enforceable contract. See J. F. OSHEVIRE LTD VS TRIPOLI MOTOR LTD
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(1997) 5NMLR (PT 503) 1; OMEGA BANK (NIG) PLC VS OBC LTD (2002) 16NWLR (PT 794) 483. There must however be a definite offer and acceptance and consideration. The intention and purpose must be mutual. See DAHIRU VS KAMALE (2001) FWLR PT. 62 P. 1853.
The facts of this case now on appeal calls for the enforcement of an oral agreement between the parties. The mutuality and purpose of the parties are undoubtedly not in doubt. What remains unresolved that has led to this appeal is whether or not the appellant is indebted to the 1st Respondent under the contract.
At the lower Court, the appellant was adjudged liable to pay the sum of N8,365,500,00k to the 1st Respondent.
The facts of the case now on appeal are not complex.
The 1st Respondent contended at the lower Court that the appellant paid N24,000,000 to him in furtherance of the agreement between them but that the remaining balance yet unpaid was N10,888,000, to be paid by the appellant. His case was one OLADIMEJI BOLAJI, an agent of the 2nd Respondent received some of the goods from him.
On the other hand, the Appellant at the lower Court asserted that he paid N26, 522,500 to
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the 1st Respondent. His case was that he paid the sum of N26,522,500 to the 1st Respondent in total settlement of his indebtedness under the agreement to the 1st Respondent. He denied awarding or ordering or purchasing goods or materials in the sum of N34,880,000.
He stated further in his statement of witness under oath, paragraph 18 – 23 thus:
18. I maintain that I did not at anytime award or ordered or purchased goods or materials in the sum of N34, 880,000.00 from the claimant
19. The goods I paid the claimant for are in the sum of N26,522,500,00 as the goods purchased and collected from the claimant were for that amount only.
20. Following the completion of its contract with the 2nd Defendant, JBN Relevance (NIG) LTD were issued goods received note (GRN) by the 2nd defendant.
21. I am not owing the claimant any amount purporting to be outstanding payment or the sum of being claimed or any sum of money whatsoever.
22. I had no contract with the 2nd defendant and had no reason to verify any payment purportedly made to me by the 2nd defendant. It was the claimant who caused my arrest and detention at the SARS Police
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Station, Air Port Road Maiduguri on this subject matter and the Police took me for investigation.
23. I restate that I am not owing the claimant the sum being claimed or any sum whatsoever.
He called two witnesses in support of his defence.
My Lords, the 1st Respondent contended that he supplied goods worth N34,888,000 but the appellant’s case was that the total value of goods supplied was N26,522,500.
It was duty of the claimant who asserted the indebtedness of the 1st defendant to prove it. He who asserts must prove. See Section 131 of the Evidence Act 2011; see also DASUKI VS FRN & ORS (2018) 10 NWLR (PT 1627) 7 NWLR PT. 1618 P. 366.
Some of the goods supplied by the 1st Respondent were allegedly received by the store officer of the 2nd Respondent, OLADIMEJI BOLAJI, who was denied by the appellant. The said OLADIMEJI was neither called as a witness nor made a party to the action at the lower Court. The implication of this is that, the allegation is at best an unproved wild allegation and OLADIMEJI a mysterious person left for imagination. Without his piece of evidence the case of the 1st Respondent remained unproved.
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He is therefore entitled to what the appellant conceded at the lower Court. The 1st Respondent asserted but failed to prove his assertion.
In view of the above, I have no hesitation in resolving this sole issue in favour of the appellant.
In consequence, this appeal has merit. It is hereby allowed. The judgment and the order of the lower Court delivered on 13th February, 2019 in Suit No BOHC/MG/CV/83M/2018 are hereby set aside. In their place I hereby order that the claimant’s claim is dismissed. I also set aside the award of N50,000 cost in favour of the claimant.
I assess the cost of this appeal as N250,000 in favour of the appellant.
JUMMAI HANNATU SANKEY, J.C.A.: I read in advance the Judgment just delivered by my learned brother, Tunde O. Awotoye, J.C.A.
It is well settled in law that where a Plaintiff has failed to prove his claim against the Defendant after the conduct of a trial on the merits, the Court should dismiss the claim. See Ukaegbu V Nwololo (2009) LPELR-3337(SC) 37-38, per Ogbuagu, JSC; Efetiroroje V Okpalefe II (1991) LPELR-1024(SC) 22, per Karbi-Whyte, JSC; Green V Green (1987) LPELR-1338) 40, per Oputa, JSC.
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In the instant case, since the Appellant denied the claim, the onus of proof was certainly on the 1st Respondent to prove that the Appellant supplied him goods less than what was agreed upon. He failed to do so. It therefore remained his word against that of the Appellant. Thus, the 1st Respondent, having not discharged the burden of proof placed on him by law, it did not shift to the Appellant.
I therefore agree with the conclusion that the Appeal is meritorious. It is accordingly allowed, with costs against the Respondent as assessed in the lead Judgment.
EBIOWEI TOBI, J.C.A.: My learned brother T. O. Awotoye, JCA afforded me the privilege to read in draft the lead judgment just delivered. I agree with the reason and the conclusion reached therein by my learned brother in allowing this appeal. The law as aptly stated by my learned brother settled beyond all dispute is that the burden of prove is on any party who is alleging the existence of a particular fact and indeed on a person who will lose if no evidence is called to establish the existence of the fact and the claim of the party. My learned brother has cited cases in this regard but I will like
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to cite another case in support of this trite position of the law. This is the case of Maihaja vs Gaidam (2017) LPELR-42474 (SC), the apex Court held:
“Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that 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.”
There is dispute in the case between the parties as to the value of what was supplied. The Appellant case is that the value of what was supplied was N26,522,500 while the 1st Respondent case is that the value supplied was N34,888,000. The lower Court agreed with the 1st Respondent and awarded the sum of N8,365,500.00 as balance to
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be paid. With due respect to the trial judge this decision does not correspond with the evidence before the lower Court as the 1st Respondent could not prove the indebtedness of the Appellant to him as he failed to show the value of the goods supplied. It is the duty of the 1st Respondent in the lower Court to have shown by credible evidence that the value of the goods supplied to the Appellant was more than the N26,522,500 which the Appellant admitted. The 1st Respondent failed to discharge this burden placed on it by law.
In the circumstance, I also hold in agreeing with my learned brother, T. O. Awotoye, JCA that the appeal is meritorious and it is allowed. I abide by the consequential order and the order as to cost.
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Appearances:
Saleh, Esq. For Appellant(s)
A. Ali ,Esq for Y. Z. Ashemi For Respondent(s)
