MOHAMMED v. AUDU & ORS (2022)

MOHAMMED v. AUDU & ORS

(2022)LCN/17120(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/YL/119/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

HON. SANI SHEHU MOHAMMED APPELANT(S)

And

1. HON. SHU’AIBU AUDU 2. BILFA NIG. LTD. 3. SAICO COMMERCIAL & CONST. CO. LTD. RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Now, it is trite law that whenever the subject matter of the claim is within jurisdiction of the Court and the Court is properly constituted in its composition and qualification of its members and there is no extrinsic factor affecting its jurisdiction, the Court is competent to exercise jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 1 All NLR (Pt. 4) 587, (1962) 2 SCNLR 341.

It is trite law that jurisdiction is fundamental to the valid adjudication of any dispute, that it is a threshold issue which ought to be determined once raised and that a matter regardless of well conducted is a nullity if conducted in the absence of jurisdiction. See IKPEKPE V. WARRI REFINERY PETROCHEMICAL CO. LTD & ANOR (2018) LPELR–44471 (SC) Per Okoro, JSC (Pp. 13–14, paras. E–D, ALADEJOBI V. NBA (2013) 55 NSCQR Per J. A. Fabiyi JSC AT pg. 195, APGA V. ANYANWU (2014) 57 NSCQR 364, NANA V. INEC (2014) 57 NSCQR (Pt. 2) Per K. M. O. Kekere-Ekun JSC AT pg. 1276. PER ABUBAKAR, J.C.A.

WHETHER OR NOT CASES ARE TRIED BASED ON THE ADDRESSES OF THE COUNSEL

It is trite law that cases are tried on credible evidence adduced by the parties not on addresses of Counsel. See NKORO V. AZURU (Supra).
I have carefully perused the Records of Appeal and found that the Appellant (Plaintiff) in his amended writ of summons at the lower Court sued Hon. Shu’aibu Audu, Bilfa Nig. Ltd and Saico Commercial & Const. Co. Ltd and the subject matter is contract of sale and defamation of character of the Plaintiff. See pages 85 and 86 of record of Appeal. This clearly shows that the lower Court has jurisdiction over the matter. The only thing is that the Respondents’ Counsel in his final written address filed at the lower Court omitted to include the name of Saico Commercial & Const. CO. Ltd as the 3rd Respondent even though the names of the 1st and 2nd Respondents are clearly written.
The learned trial Judge realised the mistake and in its judgment at page 172 of the record of appeal held as follows:-
“I wish to state that the mistakes therein e.g wrong heading, omission of name of parties does not render a document incompetent as amended will suffice. See the case of SETRACO (NIG.) LTD V. JOSEPH KPAJI (2017) 1 SCNJ Page 169. The error does not affect the jurisdiction of this Honourable Court to hear and make pronouncement. I hold that the omission of the name of the 3rd Defendant can be made even viva-voce and also this Court has the power to amend to reflect the parties. Accordingly, the name of the 3rd Defendant omitted on the Defendant is ordered to be reflected on the Defendant’s written address that is Saico Commercial & Const. Ltd. ….” PER ABUBAKAR, J.C.A.

THE PRINCIPLE THAT HE WHO ASSERTS MUST PROVE

The established law as enunciated by the Supreme Court and this Court and as stipulated in Section 131 (1) and (2), and 132 of the Evidence Act, 2011 is 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. It therefore means that whoever desires the Court to give judgment in his favour has to prove his case. See JACK V. WHYTE (2001) 6 NWLR (Pt. 709) 226 AT 272, MADUMMA V. JAMMO (2001) 15 NWLR (Pt. 736) 461, UKAEGBU V. NWOLOLO (2009) 3 NWLR (Pt.1127) 194 and SAKATI V. BAKO & ANOR. (2015) 14 NWLR (Pt. 1480) 531.

Where the parties have adduced evidence, either oral or documentary at the trial, the duty of the trial Court is to evaluate the totality of such evidence so as to see where the scales of justice tilts. He does that by placing the evidence adduced by the claimant on one side of the imaginary scale of justice with that of the Defendant on the other side. He will then weigh them together on the imaginary scale, so that whichever side weight of evidence tilts or preponderates, will have the judgment of the Court. See MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC AT 93, AYUYA V. YONRIN (2011) 10 NWLR (Pt. 1254) 135, BELLO V. EWEKA (1981) 1 SC 101. PER ABUBAKAR, J.C.A.

DEFINITION OF THE TERM DEFAMATION

MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): The appeal emanates from the judgment of Adamawa State High Court of Justice, Yola delivered by Hon. Justice, Abdul-Azeez Waziri in Suit No: ADSY/35/2017 on the 18th August, 2020.

The Appellant sorely aggrieved with the said judgment filed an appeal on the 31st August, 2020 via Notice of Appeal available at pages 177–183 of the Record of appeal.

The Appellant was served with the Record of Appeal on the 19th October, 2020 which necessitates the filing of this Brief of Argument.

On the 6th March, 2017, the Respondents through their solicitor I. B. Ismail & Associates wrote a demand letter to the appellant alleging that the Appellant sold a fake contract to them and the said demand letter was copied to Independent Corrupt Practices and Other Related Offences Commission (ICPC) and Economic and Financial Crime Commission (EFCC) see pages 71–74 of the Record of Appeal.

The Appellant through his solicitor Messrs A. A. Jatau & Co. on the 9th March, 2017 wrote a reply letter to the Respondents through their solicitor demanding for an unconditional apology. See pages 76–77 of the Record of Appeal.

Upon the failure of the Respondents to comply with the Appellant’s letter dated 9th March, 2017, the Appellant by way of wit of summons commenced an action against the Respondents at the Adamawa State High Court of Justice No. 3 Yola claiming the following reliefs:-
a. A declaration that there is no existing contract of Sale or any other Contract between the Plaintiff and the Defendants.
b. A declaration that the act of publication of the defendant’s letter dated 6th March, 2017 via their Solicitor to Independent Corrupt Practices and Other Related Offences Commission (ICPC) and Economic and Financial Crime Commission (EFCC) constitute defamation of the Plaintiff’s character.
c. The sum of Five Million Naira (N5,000,000.00) only as general damages.
d. The sum of Two Million Naira (N2,000,000.00) only as punitive damages.
e. Cost of Litigation.

See Appellant’s Amended Writ of Summons available at pages 58–59 of the Record of Appeal.

The Respondents on the other hand, filed a counterclaim against the Appellant claiming the following reliefs:-
a. The sum of N3,100,000 Three Million, One Hundred Thousand Naira) only being the balance of the money received by the respondents regarding the failed contract.
b. The sum of N1,500,000 (One Million, Five Hundred Thousand Naira) only as general damages.
c. The sum of N1,500,000 (One Million, Five Hundred Thousand Naira) Only as expenses incurred by the Counter-Claimants in their effort to recover the said sum counter-claimed.
d. Cost of filing this Counter claim.

The Appellant testified as a sole witness and tendered several documents which were admitted in evidence while the Respondents called four witnesses and did not tender any document.

After adoption of final written Addresses by the respective counsel of the parties herein, the lower Court on the 18th August, 2020 delivered judgment against the Appellant. See pages 158–175 of the Record of Appeal.

In compliance with the Rules of this Court, the parties filed and exchanged their respective briefs of Argument. The Appellant’s brief filed on 3/12/2020 and deemed on 28/10/2021 was settled by Abubakar Ali Esq. while the Respondents’ Brief was filed on 14/1/2021 and deemed on 28/10/2021 was settled by Ibrahim Ismaila Esq.

In the Appellant’s Brief, eight (8) issues were raised for determination of the appeal as follows:-
1. Whether the lower Court has the jurisdiction to entertain an incompetent process – Distilled from ground 1 of the Notice of Appeal.
2. Whether the evidence before the lower Court has established the case of defamation against the Respondents – distilled from Ground 2 of the Notice of Appeal.
3. Whether the Evidence adduced before the lower Court had established a sale of contract to the tune of Seven Million, One Hundred Thousand Naira only between the appellant and the Respondents – Distilled from Grounds 3, 5 and 6 of the Notice of Appeal.
4. Whether the lower Court was right to find and hold that DW4 is an agent of the Appellant – distilled from ground 4 of the Notice of Appeal.
5. Whether the Respondents base on the evidence adduced before the lower Court had proved their Counterclaim against the Appellant – Distilled from Grounds 7 and 11 of the Notice of Appeal.
6. Whether the lower Court was right to rely on evidence of DW2, DW3 and DW4 to arrive at a decision before the Court later consider the issue of lack of probative value of the evidence of DW2, DW3 and DW4 respectively – distilled from ground 8 of the Notice of Appeal.
7. Whether a written deposition on Oath of DW1 signed in the office of his counsel instead of before Commissioner of Oath is valid – Distilled from Ground Nine of the Notice of Appeal.
8. Whether the lower Court was right during judgment to suo moto amend the Respondents’ Final written Address thereby insert the name of the 3rd Respondent – distilled from Ground 10 of the Notice of Appeal.

The Respondent in his brief also adopted all the eight (8) issues raised by the Appellant. Having set out the issues formulated by the counsels, I am of the view that issues 1 and 8 are the same as they relate to issue of jurisdiction of the lower Court. Similarly issues 2–4 are also the same as they relate to burden and standard of proof. Issue 7 relates to competency or otherwise of the written deposition on Oath of DW1. So I am inclined to treat issues 1 and 8 jointly, then issues 2–4 together and 5, 6 and 7 separately.

SUBMISSION OF COUNSELS ON ISSUES 1 AND 8
On issues 1 and 8, the Appellant’s counsel submit that the lower Court erred in law when it entertained and relied on Respondents’ incompetent final written address and amend it suo moto during judgment. See pages 85 and 172 of the Record of Appeal.

The counsel further submit that the Respondents’ statement of defence and final written address has only the names of the Appellant and the 1st and 2nd Respondents as parties. See pages 31 and 109 of the Record of Appeal. There is no name of the 3rd Respondent in the suit and the Respondents did not make an application for amendment of their pleadings or Final Written Address. The lower Court during judgment suo moto amend the final address of the Respondent to reflect the name of the 3rd Respondent.

The learned Counsel added that the lower Court has no power to suo moto amend any party process during judgment except in relation to clerical error or omission in its judgment or order upon an application by a party. See OGBANDA V. NKANGINIEME (2010) All FWLR (Pt. 502) Pg. 1034, OMINIYI V. ALABI (2015) 244 LRCN Pg. 174.

Based on the above submissions, the counsel urged this Court to hold that the findings and conclusions of the lower Court is in breach of the relevant provision of the law and the rules of the lower Court. He urged the Court to resolve issues 1 and 8 in favour of the Appellant.

In response, the learned Respondents’ Counsel submit that cases are tried on credible evidence adduced by the parties not on addresses of counsels. See NKORO V. AZURU (2011) All FWLR (Pt. 556) 530 AT 539 Ratio 12.

The learned Respondents’ Counsel further submit that the submissions of the Appellant’s Counsel are merely technical in nature which the Courts does not observe as a matter of practice. See ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (Pt. 1078) pg. 479.

The Counsel further submit that jurisdiction of Courts are determined by considering the writ of summons and statement of claim. See GOVERNOR OF KWARA STATE V. LAFIAGI (2005) 5 NWLR (Pt. 917) 139. He urged the Court to resolve these issues in favour of the Respondents.

RESOLUTION OF ISSUES 1 AND 8
The main complaint of the appellant on these issues is that the lower Court suo moto amend the Respondents’ final written address and inserted the name of the 3rd Respondent during judgment and that the lower Court doesn’t have jurisdiction to do so.

Now, it is trite law that whenever the subject matter of the claim is within jurisdiction of the Court and the Court is properly constituted in its composition and qualification of its members and there is no extrinsic factor affecting its jurisdiction, the Court is competent to exercise jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 1 All NLR (Pt. 4) 587, (1962) 2 SCNLR 341.

It is trite law that jurisdiction is fundamental to the valid adjudication of any dispute, that it is a threshold issue which ought to be determined once raised and that a matter regardless of well conducted is a nullity if conducted in the absence of jurisdiction. See IKPEKPE V. WARRI REFINERY PETROCHEMICAL CO. LTD & ANOR (2018) LPELR–44471 (SC) Per Okoro, JSC (Pp. 13–14, paras. E–D, ALADEJOBI V. NBA (2013) 55 NSCQR Per J. A. Fabiyi JSC AT pg. 195, APGA V. ANYANWU (2014) 57 NSCQR 364, NANA V. INEC (2014) 57 NSCQR (Pt. 2) Per K. M. O. Kekere-Ekun JSC AT pg. 1276.

It is trite law that cases are tried on credible evidence adduced by the parties not on addresses of Counsel. See NKORO V. AZURU (Supra).
I have carefully perused the Records of Appeal and found that the Appellant (Plaintiff) in his amended writ of summons at the lower Court sued Hon. Shu’aibu Audu, Bilfa Nig. Ltd and Saico Commercial & Const. Co. Ltd and the subject matter is contract of sale and defamation of character of the Plaintiff. See pages 85 and 86 of record of Appeal. This clearly shows that the lower Court has jurisdiction over the matter. The only thing is that the Respondents’ Counsel in his final written address filed at the lower Court omitted to include the name of Saico Commercial & Const. CO. Ltd as the 3rd Respondent even though the names of the 1st and 2nd Respondents are clearly written.
The learned trial Judge realised the mistake and in its judgment at page 172 of the record of appeal held as follows:-
“I wish to state that the mistakes therein e.g wrong heading, omission of name of parties does not render a document incompetent as amended will suffice. See the case of SETRACO (NIG.) LTD V. JOSEPH KPAJI (2017) 1 SCNJ Page 169. The error does not affect the jurisdiction of this Honourable Court to hear and make pronouncement. I hold that the omission of the name of the 3rd Defendant can be made even viva-voce and also this Court has the power to amend to reflect the parties. Accordingly, the name of the 3rd Defendant omitted on the Defendant is ordered to be reflected on the Defendant’s written address that is Saico Commercial & Const. Ltd. ….”
I hold that the findings of the lower Court mentioned above cannot be faulted, because the address of counsel no matter how beautiful cannot replace facts. The Court are also at liberty to dispense with the addresses of counsels. See NKORO V. AZURU (Supra). The arguments of the learned Counsel to the Appellant on these issues are technical in nature which the Courts frown at. The Rule of Equity is that Equity looks at the content and not the form. From the Record of appeal, it is clear who the Appellant (Plaintiff) was suing at the lower Court. There is no doubt about that. Based on the above facts, I hold that the lower Court acted within the confines of the law and it has jurisdiction on the issue. These issues 1 and 8 are resolved in favour of the Respondents and against the Appellant.

SUBMISSIONS OF COUNSELS ON ISSUES 2, 3 AND 4
As stated earlier, these issues 2–4 relates to burden and standard of proof. The learned counsel to the Appellant should have joined or compress them together instead of splitting them into many issues thereby dissipating the precious judicial time. It is always better and more manageable to compress many grounds of appeal into a few cogent issues for determination. Appeals are not won on the basis of many issues but on how cogent they are. See HON. DR. TUKUR IDRIS NADABO V. SANI ABDULLAHI DABAY & 4 ORS (2011) 7 NWLR (Pt. 1245) Pg. 115 AT 158 Ratio 2.

In the light of the above, I will treat and determine these issues together. The learned Counsel to the Appellant submit that the lower Court in its judgment committed a grave error when it erroneously dismissed the Appellant’s claim. See page 172 of the Record of Appeal. The law is settled a defamatory publication is one that is calculated to lower the person in the estimation of right thinking men or caused him to be shunned or avoided or to expose him to hatred, contempt or ridicule or convey an imputation on him disparaging or injurious to him in his office, profession, calling or businesses. An imputation may be defamatory whether or not it is believed by those whom it is published. It can also be defamatory whether or not it is true. See DUMBO V. IDUGBOE (1983) SCNLR 29, OKOLIE V. MARINHO (2006) 15 NWLR (Pt. 616) 568.

The learned counsel referred to the evidence of the sole witness i.e PW 1 at page 92-96 of the Record and argued that it was neither discredited nor controverted during cross-examination. The Counsel also referred to Exhibits A – E1 which are correspondences between the Appellant and the Respondents and award of contract letters. The Counsel submit that contract in controversy were awarded to the 2nd and 3rd Respondents and not the Appellant.

The Counsel further submit that the testimonies of PW1 and DW1 and Exhibits A, A1, B1 and D clearly established that the Respondents had published a libellous publication that injured the Appellant’s reputation and had been disseminated or communicated to Economic and Financial Crime Commission (EFCC) and Independent Corrupt Practices and Other Related Offences Commission (ICPC). See AROMOLARAN V. AGORO (2015) 239 LRCN 79 AT Pg. 122.

The Counsel concluded that the Appellant had adduced cogent and credible evidence that established the case of defamation and the lower Court acted in error when it dismissed the Appellant’s claim. He urged this Court to so hold.

On the issue of sale of contract, the learned Counsel referred to pages 165–168 of the Record and argued that the findings and conclusion of the lower Court is erroneous on the following grounds:-
(1) There is no evidence before the lower Court that supports the findings that the original contracts were awarded to the Appellant’s companies and there was also no evidence adduced establishing that the contracts in issue were awarded to the Appellant not the Respondents.
(2) There is also no evidence to support the findings of the lower Court that the Respondents’ companies never bidden for the contracts in issue.
(3) There is also no evidence that supports the findings that a mere notification of award of contract does not translate to the contract being award.
(4) Evidence are bound that established the contracts in issue were awarded to the Respondents and there is no evidence that proved contrary.

The learned Counsel submit that the lower Court has no jurisdiction to enforce illegality. He referred to the testimony of DW1 at pages 34–36 of the Record where he stated that the consideration for the contract was N7,100,000.00 (Seven Million, One Hundred Thousand Naira) only. The Counsel argued that it offend Section 1(1) – (3) of the Money Laundering (Prohibition) Act Cap M18 Laws of Federation of Nigeria, 2004 as it prohibits any transaction made in cash above N500,000.00 only in case of an individual or N2,000,000 only in case of Corporate Bodies. It follows that the alleged sales of contract is illegal thereby unenforceable.

Furthermore, it is submitted that there is contradiction in the evidence of the DW1, DW2 and DW3 as to the amount agreed upon for the sale of the said contract. DW1 and DW3 said the amount was N7,100,000 while DW2 mentioned N10,000,000.00 (Ten Million Naira). Having Exhibits B and B1 and the Contradictory evidence of the Respondents’ witnesses, the lower Court erred to find and hold that there was a sale of contract in the sum of N7,100,000.00 by the Appellant to the 1st Respondent on behalf of the 2nd and 3rd Respondents.

The learned counsel submit that assuming but not conceding the evidence of the Respondents’ witnesses can be relied upon, it is settled law for a contract of sale to be valid and enforceable, the following has to be prove:-
(1) A definite offer;
(2) An unconditional acceptance;
(3) Payment of consideration;
(4) The parties have intended to create legal relationship and
(5) There is consensus and idem.

See OWOO V. EDET (2012) Pg. 1791, OLANLEGE V. AFRO CONTINENTAL (NIG) LTD (1996) 7 NWLR (Pt. 458) Pg. 29.

It is argued that the above requirements of the law have not been proved at the lower Court because there is no evidence that there was an offer and acceptance. He referred to the evidence of DW 1 and DW 3 and argued that it is mere speculations.

On the issue of whether the DW 4 is an agent of the Appellant or not. The Counsel submit that the lower Court committed a grave error when it held in its judgment that the DW 4 is an agent of the Appellant. See pages 165–166 of the Record of Appeal. It is submitted that the Appellant and the Respondents didn’t join issues relating to DW 4 being an agent of the Appellant and evidence relied upon by the lower Court is not supported by pleadings before the Court. See ADDAH & ORS. V. UBANDAWAKI (2015) 241 LRCN pg. 1 AT 23 – 24.

The counsel argued that the DW 4 was not instructed to negotiate or sell any contract to the Respondents on behalf of the Appellant. It is trite law an agent who acts within the scope of his authority on behalf of a principal he had disclosed both in existence and in name, incurs no liability. But where an agent acted outside his authority, the agent will be liable for his act and not his principal. See COTECNA INTERNATIONAL LTD. V. CHURCHGATE NIG. LTD. (2010) 12 SCNJ (Pt. 11) page 418. The Counsel urged this Court to resolve these issues in their favour.

In response, the learned Counsel to the Respondents submit that the trial Court was right in its judgment when it held that the publication of the letter by the Respondents’ Solicitors does not constitute defamation. See page 172 of the Record of Appeal. The said Court was also right when it held that there was a sale of a contract in the sum of N7,100,000 by the Plaintiff to the 1st Defendant on behalf of the 2nd and 3rd Defendants. See evidence of DW 1–DW 4 pages 149–156 of the Record of Appeal.

In relation to the submissions of the learned Counsel to the Appellant on Section 1(1) and (3) of Money Laundering Act, the Counsel submit that it is criminal in nature and a clear deviation from this appeal to which no ground of appeal connected to the submission. The Counsel urged this Court to discountenance same.

The learned Counsel further submit that the lower Court was equally right when it held that DW 4 Zakari Adamu Duhu is an agent of the Appellant. See the evidence of DW 4 at page 155 of the Record.

Finally, the Counsel submit that all the authorities cited by the Appellant’s Counsel are not helpful to him and urged this Court to resolve all the issues in their favour.

RESOLUTION OF ISSUES 2, 3 AND 4
The established law as enunciated by the Supreme Court and this Court and as stipulated in Section 131 (1) and (2), and 132 of the Evidence Act, 2011 is 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. It therefore means that whoever desires the Court to give judgment in his favour has to prove his case. See JACK V. WHYTE (2001) 6 NWLR (Pt. 709) 226 AT 272, MADUMMA V. JAMMO (2001) 15 NWLR (Pt. 736) 461, UKAEGBU V. NWOLOLO (2009) 3 NWLR (Pt.1127) 194 and SAKATI V. BAKO & ANOR. (2015) 14 NWLR (Pt. 1480) 531.

Where the parties have adduced evidence, either oral or documentary at the trial, the duty of the trial Court is to evaluate the totality of such evidence so as to see where the scales of justice tilts. He does that by placing the evidence adduced by the claimant on one side of the imaginary scale of justice with that of the Defendant on the other side. He will then weigh them together on the imaginary scale, so that whichever side weight of evidence tilts or preponderates, will have the judgment of the Court. See MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC AT 93, AYUYA V. YONRIN (2011) 10 NWLR (Pt. 1254) 135, BELLO V. EWEKA (1981) 1 SC 101.

The term “Defamation” is defined as “the act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the Plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault”. See Black’s Law Dictionary, Eighth Edition page 448.

The law is settled a defamatory publication is one that is calculated to lower the person in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him, disparaging or injurious to him in his office, profession, calling, trade or businesses. See OKOLIE V. MARINHO (2006) 15 NWLR (Pt. 616) 568, DUMBO V. IDUGBOE (1983) SCNLR 29.

I have carefully considered the Record of Appeal particularly the testimonies of PW 1 and DW 1 and Exhibits A, A1, B, B1 and D. I am of the firm view that the Appellant has failed to prove that the Respondents’ Solicitors letter constitute defamatory publication. So the findings of the lower Court at page 172 of the Record of Appeal can never be faulted. It rightly held as follows:-
“On the whole exhibits A, A1, B, and B1 tendered by the Plaintiff were not defamatory and I accordingly so hold. The Defendants simply complained about their outstanding balance in respect of a failed contract not executed. The claim of the Plaintiff therefore fails and is accordingly dismissed”.

One of the contentions of the Appellant is whether there is sale of contract between the Appellant and the Respondents.

The learned Counsel argued that from the available evidence before the lower Court, there was no evidence that the original contract was awarded to the Appellant’s companies not the Respondents. The learned Counsel to the Respondents submit that there was a sale of a contract in the sum of N7,100,000 by the Plaintiff to the 1st Dependant on behalf of the 2nd and 3rd Defendants.

I have carefully considered the Record of Appeal and the submissions of Counsel. I am of the view that from the testimonies of DW1 at pages 149-150, DW 3 at pages 151-152, DW 4 at pages 155-156, there is ample evidence that there exist a sale of contract between the Appellant and the Respondents I hold that there is no contradiction in the evidence of the said witnesses.

I have also perused the 12 grounds of appeal filed by the Appellant at pages 177–182 of the Record of Appeal which I don’t intend to set out here, and found that there is no single ground relating to Money Laundering Act which the Appellant’s counsel raised in his issue 2 for determination. It is elementary knowledge that all issues for determination in an appeal must be distilled from the grounds of appeal filed. I hold that all submissions of Counsel on Money Laundry goes to no issue, as it was not canvassed at the lower Court and the leave of this Court has not sought and obtained by the Appellant.

One of the grouse of the Appellant is that the DW 4 is said to be his agent. The Counsel to the Appellant maintained that DW 4 was never the agent of the Appellant as he only instructed him to collect some documents and hand it over to the 1st Respondent. He was never instructed to negotiate or sell any contract to the Respondents on behalf of the Appellant.

The term ‘Agency’ is defined as “ a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions”. See BLACKS LAW DICTIONARY EIGHT EDITION, PAGE 67.

I have carefully considered the Record of Appeal particularly the testimonies of DW 4 at page 155 of the Record and am of the view that the DW 4 is an agent of the Appellant. This could be inferred from his evidence. The findings/judgment of the lower Court at pages 165–166 is correct when it held as follows:-
“It is beyond any equivocation that DW 4 Zakari Adamu Duhu is an agent of the Plaintiff Hon. Sani Shehu Mohammed. Agency is a relationship which exist between the persons. One of whom expressly or impliedly consents that the other should act on his behalf ….”.

Based on the above, I hold that issues 2, 3 and 4 are resolved in favour of the Respondents and against the Appellant.

SUBMISSIONS OF COUNSELS ON ISSUE 5
The learned Counsel to the Appellant adopted his arguments and submissions in paragraphs 4.29–4.53 of his brief of argument earlier raised in issues 2 and 3, and further submit that the Respondents’ counter-claim against the Appellant are as follows:-
(i) The sum of N3,100,000.00 (Three Million, One Hundred Thousand Naira) only being the balance of the money received by the Respondent regarding the failed contract.
(ii) The sum of N1,500,00.00 One Million, Five Hundred Thousand Naira) only as general damages.
(iii) The sum of N1,500,000.00 (One Million Five Hundred Thousand naira) only as expenses incurred by the counter-claimant in their effort to recover the said sum counter-claimed.
(iv) Costing of filing this counter-claim.

The Counsel argued that in proving the said counter-claim., the Respondents called DW1–DW4. See pages 44–46, 146–147, and 149–156 of the Record of Appeal. The Counsel added that none of the witnesses lead evidence on any expenses incurred by the Respondents to warrant the lower Court order the Appellant to pay the sum of N200,000.00 only as expenses.

The counsel further argued that there is too much contradiction in the evidence of the said witnesses and urged the Court to resolve the issue in their favour.

In response, the learned Counsel to the Respondents submit that based on the evidence adduced before the lower Court, the counter-claimants/Respondents had proved their counter-claim against the Appellant. See the testimonies of DW1 – DW4 and the counter-claim on pages 48–50 of the Record of proceedings at the lower Court. There is nothing contradictory in the evidence of the said witnesses. He urged this Court to resolve this issue in their favour.

RESOLUTION ON ISSUE 5.
This issue is predicated on whether the Respondents proved their case by credible evidence to be entitled to the judgment in their counter-claim. The learned Counsel to the Appellant adopted his submissions in paragraphs 4.29–4.53 of his brief of argument earlier raised in issues 2 and 3. He argued further that the Respondents failed to prove their counter-claims and expenses incurred as the evidence of the witnesses called are contradictory. The learned Counsel to the Respondents submit that they have proved their counter-claim against the Appellant and there is no contradiction in the evidence of their witnesses.

Now, the law is that generally, a counter-claim is a claim for relief asserted against an opposing party after an original claim has been made, that is a Defendants claim in opposition to or as a set off against the Plaintiff’s claim. See BLACK’S LAW DICTIONARY, NINTH EDITION, PAGE 402. In other words, a counter-claim is a claim by the Defendants against the Plaintiffs in the same proceedings.
It is regarded as an independent and separate action in which the Defendants/Counter-claimants in opposition of the Plaintiffs to be entitled to judgment thereon. See MADBISON INTER-LINK ASSOCIATION LTD. V. U.T.C (NIGERIA) PLC (2013) 9 NWLR (Pt. 1359) 197 AT 209 Para. A–C.

I have considered the Record of Appeal particularly the Counter-claim at pages 48–50 and the evidence of DW 1–DW 4 at pages 44–46, 146–147, 149–156 and I am of the view that there is no contradictions in the said testimonies. Consequently, I hold that the judgment of the lower Court on the said counter-claim at pages 173–175 of the Record cannot be faulted. This issue is therefore resolved in favour of the Respondents and against the Appellant.

SUBMISSIONS OF COUNSELS ON ISSUE 6

The learned Appellant’s Counsel submit that the lower Court in its judgment at pages 165–169 of the Record relied on the evidence of DW 2, DW 3 and DW 4 to resolve all issues for determination in favour of the Respondents thereby arrived at its decision and later summersaulted and erroneously held at page 169 of the Record as follows:
“Before am done let me address the collateral issues raised by learned Counsel to the Plaintiff in his final written address on the issue of evidence of DW 2, DW 3 and DW 4 lacking probative value as the Defendants did not frontload their statement on oath nor was subpoena to show that they have been subpoenaed to testify ……”

The learned Counsel submit that a judgment of the lower Court must be confined to the issues raised by parties and where a Court ignored any issue raised by party thereby reached a decision, the decision so reached can be said to be perverse. See EMMANUEL V. UMANA & ORS. (2016) Vol. 256 LRCN Page 32 AT 82.

The Counsel further submit that the lower Court have relied on the testimonies of DW 2, DW 3 and DW 4 and resolved all issues in favour of the Respondents and reached a decision thereby becomes functus officio to consider whether the evidence of DW 2, DW3 and DW 4 have probative value or not. See DINGYADI & ANOR V. INEC & ORS (2011) All FWLR (Pt. 581) Paras G–B. Where the term “Functus officio” was defined by the Supreme Court.

The learned Counsel contended that the Court below committed a grave error when it consider the issue of whether the testimonies of DW 2, DW 3 and DW 4 have probative value or not after it had already relied on such testimonies and arrived at a decision. He urged this Court to resolve this issue in their favour.

In response, the learned Counsel to the Respondents submit that the submission of the learned Counsel to the Appellant is technical in nature which the Supreme Court frowns at. See ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (Pt. 1078) page 479.

It is submitted further that cases are decided on facts before the Court and facts of the case erect the Ratio Decedendi of the case. See INAKOJU V. ADELEKE (Supra) Ratio 13.

The learned Counsel further submit that on the issue of functus officio, there is only one judgment of the Court as transmitted by the Appellant and Judge is the master of his Court and sits alone. The issue of probative value was long decided which does not make different from his decision. He urged this Court to resolve this issue in their favour.

RESOLUTION OF ISSUE 6.
This issue is predicated on probative value of the testimonies of DW 2, DW 3 and DW 4 and whether the lower Court was functus officio or not.

The Supreme Court and this Court have held over the years that whoever desires any Court to give judgment in his favour has to prove his case. See Section 131(1) and (2) and 132 of the Evidence Act 2011, JACK V. WHYTE (Supra), SAKATI V. BAKO (Supra), MADUMMA V. JAMBO (Supra).

The law is that where the parties have adduced evidence, whether oral or documentary at the trial, the duty of the trial Court is to evaluate the totality of such evidence so as to see where the scales of justice tilts. See MOGAJI & ORS V. ODOFIN & ORS (Supra), AYUYA V. YONRIN (Supra), BELLO V. EWEKA (Supra).

BLACK’S LAW DICTIONARY EIGHT EDITION PAGE 696 defines the term “Functus Officio” as “having performed his or her office”. “An officer or official body without further authority or legal competence, because the duties and functions of the original commission have been fully accomplished”. See also DINGYADI & ANOR. V. INEC & ORS. (Supra) where the Apex Court defines functus officio. See also INTEGRATED REALTY LTD V. ODOFIN & ORS. (2017) LPELR- 48358 (SC) stated the principle of law thus:-
“Functus officio is latin for “ having performed his or her task” and refers to one who has exercised his or her authority and brought it to an end in a particular case”

An examination of the circumstances under which the lower Court delivered its judgment at pages 158–175 of the Record of Appeal shows that it was done within the confines of the law. The trial Court has performed its duties by fully evaluating the evidence before it particularly those of DW 2, DW 3 and DW 4. The argument that the Court is functus officio cannot hold water. Consequently, issue 6 is also resolved in favour of the Respondents and against the Appellant.

SUBMISSIONS OF COUNSELS ON ISSUE 7.
This issue relates to whether a written deposition on oath of DW 1 signed in the office of his Counsel instead of before the Commissioner for Oath is valid or not.

The Appellant’s Counsel referred to page 172 of the Record of Appeal where the lower Court held that-
“Signing of a written statement on oath before counsel is not proper but then failure to depose to a written statement on oath before a Commissioner for Oaths will not render the deposition invalid once the deponent adopts same at the trial”.

The Counsel submit that by virtue of Section 112 of the Evidence which provides that Affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner or before a partner or clerk of his legal practitioner. The Counsel cited the case of OMISORE & ANOR. V. AREGBESOLA & ORS. (Supra) at page 182 and the evidence of DW 1 at page 147 of the Record.

The Counsel submit that the lower Court rely on the testimony of DW1 having not been deposed before the Commissioner for Oaths and urge this Court to so hold.

On the other hand, the Respondents’ Counsel submit that the trial Court was right when it held in its judgment that it would have been different if the written deposition on oath of DW 1 was never adopted. It was adopted in the presence of the Appellant’s Counsel without objection.

The Counsel submit that the Supreme Court in the case of BUHARI V. OBASANJO (2008) 19 NWLR (Pt. 1120) P. 246 defines deposition as “Statement of a witness made on oath, out of Court”.

The Counsel urged this Court to discountenance the submissions of the Counsel to the Appellant and resolve this issue in their favour.

RESOLUTION ON ISSUE 7

BLACKS LAW DICTIONARY, EIGHT EDITION AT PAGE 42 defines “deposition” as a witness out of Court testimony that is reduced to writing for later use in Court or for discovering purpose”
It is trite law that a Court will act only on a written deposition of a witness which is his evidence in chief, if it is found to be credible and reliable upon proper evaluation. See OMISORE & ANOR. V. AREGBESOLA & ORS. (Supra) at page 182 paras U–Z.

One of the maxim of equity is “Equity Aids the Vigilant and not the indolent”.
I have carefully considered the Record of Appeal particularly the judgment of the lower Court at page 172 where it held thus:
“Signing a written statement on oath before a Counsel is not proper but then failure to depose to a written statement on oath before a Commissioner for Oath will not render the deposition invalid once the deponent adopts same during trial”.
From the Record of Appeal, it is clear that the learned Counsel to the Appellant at the trial Court failed or neglected to raised any objection relating to the written deposition of the DW 1 so he cannot be heard now arguing that the said written deposition or examination-in-chief should have been disregarded by the lower Court. One of the maxim of Equity is that he who comes to Equity must come with clean hands. With due respect, the learned Counsel to the Appellant doesn’t have clean hands in this regard. He cannot eat his cake and still have it.

Based on the above authorities and facts, I hold that the trial Court is right in its findings and final judgment. This issue 7 is also resolved in favour of the Respondents and against the Appellant.

The appeal lacks merit and is hereby dismissed. The judgment of the lower Court delivered on 18th August, 2020 in Suit No: ADSY/35/2017 is hereby affirmed.
The sum of N100,000.00 is awarded to the Respondents as cost.

CHIDI NWAOMA UWA, J.C.A.: I read in advance, the judgment delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking merit. I also dismiss the appeal and affirm the judgment of the trial Court in Suit No. ADSY/35/2017 delivered on the 18th August, 2020.

I abide by the order made by my learned brother in the leading judgment as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead judgment just delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I agree entirely with the reasoning and conclusion arrived by my learned brother that the appeal lacks merit and should be dismissed. I also dismiss the appeal with nothing further to add.