ALOYSIUS OBUTE v. ADEBAYO DAUDA ABDULKAREEM
(2014)LCN/7208(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2014
CA/K/191/2012
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALOYSIUS OBUTE Appellant(s)
AND
ADEBAYO DAUDA ABDULKAREEM Respondent(s)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CIVIL PROCEEDINGS
It is an established principle of law that, for the Plaintiff to succeed, the burden of proof expected of him in civil cases, generally, is to establish his case on balance of probabilities i.e preponderance of evidence. See; Uzuegbu Vs Progress Bank Nig. Ltd (1988) 4 NWLR (Pt. 87) Page 236.
Where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice as in the instance case, minimal evidence adduced by the other side will suffice to prove his case. This is because the defendant is deemed to have accepted the pleadings and evidence or the case of the Plaintiff in totality. In such a situation, the onus and standard of proof is minimal. See the following cases;
Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) at 352;
Nwabuoku Vs Ottin (1961) 2 SCNLR page 232;
Omeregbe Vs Lawani (1980) 3-4 SC 108;
New breed Org. Ltd Vs Erhomosele (supra) at 527 and 544 – 545.
In the instance case as rightly observed by the trial Court, the Appellant’s further depositions as well as the deposition of some of the witnesses called by him were not borne out by his amended statement of claim and therefore they go to no issue and should be discountenanced. It is trite law that a party should not be heard on issues not pleaded by him and also judgment should not be based on matters outside the pleadings. See the cases of;
Oladipo Vs Moba L.G.A (2010) 5 NWLR (Pt.1186) page 117 at 162; Temile Vs Awani (2001) 12 NWLR (Pt.728) page 726 at 752.
In Agienoji vs C.O.P. Edo state (2007) 4 NWLR (Pt.1023) page 23 at 44-45. The Court held that, in civil cases the duty is at all times on the Plaintiff to prove his case. He cannot assume he is entitled to automatic judgment because the other party had not adduced evidence before the trial Court. PER ABOKI, J.C.A.
WHETHER OR NOT THE COURT CAN ACT ON AN UNCONTRADICTED EVIDENCE OF A WITNESS
Where evidence of a witness is not inadmissible in law and is uncontradicted as in the instance case, a Court of law can act on it and accept it as a true version of the case he seeks to support. See; Udo Vs C.S.N.C (supra) at 155. PER ABOKI, J.C.A.
WHETHER OR NOT THE COURT MUST CONFINE ITSELF TO THE PLEADINGS OF THE PARTIES BEFORE IT
It is my opinion that all the above findings does not arise from the pleadings of the parties. An issue that does not arise from the pleading cannot at the close of pleading be invented by the Court. See; Udo Vs C.S.N.C (2001) 14 NWLR (Pt.732) page 161 – 162.
In the determination of dispute between the parties, the judgment of the Court must be confined to the issues raised by the parties in their pleadings, and not otherwise. It is therefore, not competent for a Court to suo moto make or formulate a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See; Agienoji Vs COP Edo State (2007) 4 NWLR (Pt.1023) page 23 at 41. PER ABOKI, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
In the instance case the findings of the trial Court, does not arise from the pleadings of the parties and therefore perverse. It is trite law that appellate Court do not generally interfere with the findings of fact of a trial Court. However, an appellate Court will interfere where the findings are perverse. A decision or finding is said to be perverse in the following instances;
i. When it runs counter to the evidence; or
ii. Where it has been shown that the Court took into account matters which it ought not to or shut its eyes to the obvious; or
iii. When it has occasioned a miscarriage of justice.
See; Udo Vs C.S.N.C (Supra) at page 157-158. PER ABOKI, J.C.A.
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court of Justice, delivered on 28th September, 2011 by J.S. Abiriyi J.
The Appellant was the Plaintiff at the lower Court while the Respondent was the Defendant.
By the amended statement of claim dated 11th October, 2010 but filed on 30/03/11 in suit No. KDH/KAD/951/2010 the Appellant claimed against the Respondent the following reliefs;
1. “The Plaintiff claims the sum of N2,340,000.00 being balance of agreed contract proceed share with defendant.
2. Interest at the rate of 10% on judgment sum till same is fully and finally liquidated.”
The brief summary of the facts that gave rise to this appeal as pleaded by the Appellant were that the Appellant, as Plaintiff sued Respondent, claiming the sum of N2,340,000.00 being balance of contract proceed share, mutually agreed under a joint venture agreement to finance a contract in the sum of N34 Million awarded to a corporate nominee of the Respondent by the Kaduna State Government.
The sum of N8.7 Million was paid by the Appellant in pursuance of the financial agreement with the Respondent. The Respondent agreed to give Appellant the sum of N5.5 Million, exclusive of cost of his investment, as consideration after executing the contract.
The Respondent later borrowed the sum of N140,000.00 from the Appellant and promised to defray same in addition to his earlier commitment under joint venture agreement with the Appellant.
It was the Appellant case at the lower Court that the Respondent only paid the sum of N12 Million as part of his commitment in January 2010, leaving unpaid balance of N2,340,000.00 in breach of the agreement.
The Respondent had given a cheque of N2,340,000.00 for payment of the said balance, but it was returned unpaid, same was tendered in evidence and admitted by the lower Court.
The Respondent at the trial Court was represented by counsel and had filed his defence, but he never adduced evidence nor addressed the lower Court after the Appellant closed his case.
The trial Court in its considered judgment on 28th September, 2011 held inter alia as follows;
“…..It must be stated from the onset that the Plaintiff’s further deposition as well as depositions of the other witnesses called by him are not borne out by his amended statement of claim and therefore they go to no issue…..It is not possible to hold on the pleadings and evidence that the cheque exhibit 2 was issued by the defendant as balance for an outstanding debt. …..There is even no evidence that the defendant had paid an initial sum of N12 Million to the Plaintiff leaving a balance of N2,340,000.00……No document has been tendered in the form of a receipt to show that the defendant received any money from the Plaintiff……It is clear from the forgoing that the unchallenged evidence has not sufficiently established the claim of the Plaintiff.”
Dissatisfied with the said judgment the Appellant filed a notice of appeal containing five (5) grounds of appeal.
In accordance with the rules of this Court, the Appellant filed his brief of argument dated 13th May, 2012. The Respondent however failed to file any brief and was not represented. Therefore, this Appeal will be determined on the Appellant’s brief alone.
In his brief of arguments the Appellant raised a lone issue for the determination as follows;
1. “Whether the Appellant proved his claim having regard to his pleadings and evidence before the trial Court?”
This lone issue is adopted for the determination of this appeal.
Learned counsel to the Appellant submitted that the finding of the trial Court to the effect that the unchallenged evidence has not sufficiently established the claim of the Plaintiff was not borne out of the Appellant’s pleading and evidence adduced in proof of his case. He referred the Court to the Appellant’s averments in the statement of claim at pages 3 to 4 of the printed record.
Learned counsel submitted that in support and proof of the averments in the statement of claim, the Appellant called six witnesses and tendered 9 exhibits. He contended that the Appellant met substantially the requirements of the law. He maintained that Appellant’s pleadings were enough to support the evidence adduced before the lower Court. He urged the Court to so hold.
Learned counsel contended that it was the finding of the trial Court that;
“Plaintiff’s further depositions as well as depositions of the other witnesses called by him are not borne out by his amended statement of claim and therefore they go to no issue. Therefore the evidence to the effect that the defendant is fraudulent or uses the names of various companies is not based on pleaded facts contained in the amended statement of claim”
He also referred the Court to pages 133-134 of the printed record.
He submitted that the misdirection referred to above was borne out of the fact as revealed in the trial Court’s finding that consideration was only given to the Appellant’s amended statement of claim and not to his detailed reply to statement of defence filed at the lower Court. The Court was referred to paragraphs 2, 7, 8a and 9 of the Appellant’s reply to the statement of defence at page 68 to 70 of the printed record.
Learned counsel contended that depositions of PW2-PW6 were pleaded in the Appellants reply to the statement of defence. He submitted that it was the disregard of the Appellant’s reply to the statement of defence that resulted to the trial Courts misdirection. He urge the Court to hold that the Appellant did not give evidence which went to no issue as found by the lower Court.
Learned counsel submitted that the trial Court’s finding that it is not possible to hold on the pleadings and evidence that the cheque exhibit 2 was issued by the defendant as balance for an outstanding debt is not supported by the Appellant’s pleadings and evidence adduced at the lower Court. He referred the Court to paragraph 6 of the reply to statement of defence at page 68, PW1’s deposition at page 82, paragraph 8(f) of the Appellant’s further deposition at page 92 and paragraph 7 of PW3’s deposition at page 94 of the printed record. According to the learned counsel all these constitute admissible evidence in proof of the Appellant’s plea that exhibit 2 was balance of agreed payment from the Respondent.
Learned counsel submitted further that the lower Court’s finding at page 134 of the printed record that the Plaintiff merely pleaded and in his written deposition claimed that the defendant gave cheque in sum of N2,340,000.00 without indicating that it was Bay Pharmacy Nigeria Ltd cheque, was erroneous and against the evidence adduced before it. He referred to PW1’s evidence in paragraph 6 of his further deposition at page 68 of the printed record. Where he pleaded that exhibit 2 was drawn by Respondent who controlled Bay Pharmacy Nig. Ltd.
Learned counsel contended that the lower Court at page 134 of the printed record held that there is even no evidence that the defendant had paid an initial sum of N12 Million to the Plaintiff. He submitted that the Appellant testified that he got N12 Million as part payment in paragraph 7 of his deposition at page 8 of the printed record. He also referred the Court to PW2, PW3 and PW6 depositions at pages 85, 92 and 94 (paragraph 5 & 6) of the printed record respectively.
He maintained that the best evidence of payment of N12 Million was supplied by Respondent himself in paragraph 15 (m) of his statement of defence, when he acknowledge paying N6 Million each to the Appellant and PW3 through Unity Bank cheques No. 0363881 and 0363883 at page 37 of the printed record.
Learned counsel urged the Court to hold that the failure of the Respondent to explain reason for payment of N12 Million drawn in favour of the Appellant constitute admission of Appellant’s contention that these payment were made pursuant to their joint venture agreement. He referred the Court to the case of; Anyawu Vs Uzouake (2009) 13 NWLR (Pt.1159) page 445 at 468.
Learned counsel submitted that the lower Court erred when it held at page 135 of the printed record that no document has been tendered in the form of receipt to show that the defendant received anything from the Plaintiff. He contended that the material pleadings and evidence before the trial Court was that Respondent received N8.7 Million from the Appellant as contribution in execution of joint venture agreement. PW3 deposed that cash of N8.7 Million was paid over to Respondent in his presence; this was also supported by evidence of PW2.
Learned counsel argued that the Appellant had proved not only existence of a valid contract, but had gone even further in showing receipt of N8.7 Million by proving part performance in payment of N12 Million and cheque for the balance in the sum of N2, 340,000.00 drawn by Respondent. According to the learned counsel, it is wrong for the lower Court to refer to credible and unchallenged testimony of PW3 as “mouth the same thing”. In doing this he said the trial Court substitute its own denial of a proved fact for one Respondent failed to make.
Learned counsel submitted that by its holding that the Appellant’s case was not proved on the pleading and evidence the lower Court failed to distinguish between the standard of proof in criminal cases and those in civil one, in the instance case. He maintained that proof in civil cases is based on preponderance of evidence and evidence adduced by the Appellant based on his pleadings was sufficient to prove his claim. More importantly, Respondent failed to call evidence to prove his defence or challenge Appellant’s evidence at the trial despite representation by counsel. The Court was referred to the case of; Chami Vs UBA Plc (2010) 6 NWLR (Pt.1191) at page 505.
Learned counsel contended that the lower Court did not properly evaluate the documentary evidence submitted by the Appellant. He referred the Court to the case of; Chami Vs UBA Plc (Supra) at page 496-497. He submitted that the Respondent hereto failed to meet the case of the Appellant at the trial Court. He insisted that evidence adduced are enough to sustain the claim.
Learned Appellant’s counsel contended that it is not the duty of the Court to make a case for parties and that a case must be decided on material facts pleaded and evidence adduced. He referred the Court to the case of; Kalu Vs Uzor (2006) 8 NWLR (Pt.981) at page 89. He argued that in the instance case the trial Court seemed to have made a case for the Respondent.
Learned counsel urged the Court to set aside the lower Court’s judgment and hold that the Appellant’s claims were proved at the lower Court.
I had earlier said in this judgment that the Respondent filed statement of defence but never adducd evidence in support thereof. Where a pleading is not supported by evidence, it is deemed by the Court as having been abandoned. In the instance case the statement of defence filed is deemed abundant. See; New breed Org. Ltd Vs Erhomosele (2006) 5 NWLR (Pt.974) page 499 at 545.
Having deemed the Respondent statement of defence abundant, it follows therefore that no new issues were raised; therefore, the reply filed by the Appellant ought to be discountenanced. I find support in this opinion of mine in the case of Ifegwu Vs Fed. Rep. of Nig. (2001) 13 NWLR (Pt.729) at page 129.
It is an established principle of law that, for the Plaintiff to succeed, the burden of proof expected of him in civil cases, generally, is to establish his case on balance of probabilities i.e preponderance of evidence. See; Uzuegbu Vs Progress Bank Nig. Ltd (1988) 4 NWLR (Pt. 87) Page 236.
Where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice as in the instance case, minimal evidence adduced by the other side will suffice to prove his case. This is because the defendant is deemed to have accepted the pleadings and evidence or the case of the Plaintiff in totality. In such a situation, the onus and standard of proof is minimal. See the following cases;
Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) at 352;
Nwabuoku Vs Ottin (1961) 2 SCNLR page 232;
Omeregbe Vs Lawani (1980) 3-4 SC 108;
New breed Org. Ltd Vs Erhomosele (supra) at 527 and 544 – 545.
In the instance case as rightly observed by the trial Court, the Appellant’s further depositions as well as the deposition of some of the witnesses called by him were not borne out by his amended statement of claim and therefore they go to no issue and should be discountenanced. It is trite law that a party should not be heard on issues not pleaded by him and also judgment should not be based on matters outside the pleadings. See the cases of;
Oladipo Vs Moba L.G.A (2010) 5 NWLR (Pt.1186) page 117 at 162; Temile Vs Awani (2001) 12 NWLR (Pt.728) page 726 at 752.
In Agienoji vs C.O.P. Edo state (2007) 4 NWLR (Pt.1023) page 23 at 44-45. The Court held that, in civil cases the duty is at all times on the Plaintiff to prove his case. He cannot assume he is entitled to automatic judgment because the other party had not adduced evidence before the trial Court.
Now having discountenanced Appellant further depositions and deposition of other witness called by him, is there any evidence left to sustain the claim of the Appellant? The trial Court in its judgment at page 135 of the printed record held that;
“….The unchallenged evidence has not sufficiently established the claim of the Plaintiff”.
Now can this finding be justified? I do not think so.
The trial Court did not consider other evidence before it in this regard. The trial Court felt that if further depositions of PW1 and those of the other witness called by the Appellant are discountenanced the matter will end there. This has turned out not to be the case as there are other uncontroverted evidence adduced by the Appellant which can sustain his claim with minimal evidence.
It is pertinent here to reproduce paragraphs 2 to 9 of the Plaintiff/Appellant’s amended statement of claim for ease of reference as follows;
1…………….
2. “The Plaintiff avers that sometimes in June 2009, he entered into joint financing agreement (joint venture agreement) with the defendant with the purpose of jointly financing a contract in the sum of N34 Million Naira procured by the defendant from the Kaduna State Government.
3. It is a term of the agreement between the parties hereto that sum of N18 Million Naira would be required to execute the said contract, and further that while the Plaintiff contributes the sum of N8.7 Million Naira the defendant shall contribute the sum of N9.3 Million Naira for execution of the contract.
4. In consideration of Plaintiff’s payment of N8.7 Million, defendant agreed in writing to give Plaintiff the sum of N5.5 Million as benefit of his investment.
5. Plaintiff avers that the date agreed for contract completion was 14/8/2009 and defendant agreed that same date was binding on him.
6. The Plaintiff avers that sometime around November, 2009 when getting payment from Kaduna State Government was proving difficult, the defendant got further sum of N140,000.00 which he promised to defray with eventual payments due to Plaintiff.
7. Defendant completed and collected contract sum from Kaduna State Government in January, 2010 and only gave Plaintiff the sum of N12 Million Naira out of the total N14,340,000.00 being capital contributed and agreed profit, leaving unpaid balance of N2,340,000.00.
8. Defendant gave cheque in the sum of N2,340,000.00 for balance sum on 19/01/2010 but same cheque was presented by the Plaintiff’s bank with negative result in effect that defendant did not have same sum in his account at unity bank plc.
9. The Plaintiff avers that all efforts to recover balance sum of N2,340.000.00 being balance of agreed contract proceeds share failed as the defendant has failed, refused and/or omitted to pay same over to the Plaintiff.”
The Appellant’s (PW1) initial depositions/testimony at the lower Court agreed completely with the pleaded facts and remains unchallenged throughout the trial. It is trite law that where a Court has before it only the unchallenged evidence of a party to consider, the Court is bound to accept the unchallenged evidence. See; Mirchandini Vs Pinheiro (2001) 3 NWLR (Pt.701) page 573 – 578.
Where a trial Court had no evidence from the defendant to place against that of the Plaintiff to see which weighed more, it is expected to decide on the evidence tendered by the Plaintiff. In the instance case, the Respondent did not contest the case. So there was no evidence to place against that of the Appellant. The trial Court therefore ought to have acted on the PW1’s initial depositions pleaded and which remained unchallenged.
Where evidence of a witness is not inadmissible in law and is uncontradicted as in the instance case, a Court of law can act on it and accept it as a true version of the case he seeks to support. See; Udo Vs C.S.N.C (supra) at 155.
In the instance case the trial Court in its judgment held inter alia as follows that;
1. It is possible to hold on the pleading and evidence that the cheque exhibit 2 was issued by the defendant as balance for an outstanding debt.
2. There is no evidence that the defendant had paid an initial sum of 12 Million Naira to the Plaintiff leaving the balance of N2,340,000.00.
3. Throughout his (Plaintiff’s) initial written deposition no where he suggested that he made the contribution of N8,700,000.00 for the execution of the contract, and
4. No evidence has been tendered in form of receipt to show that the defendant received any money from the Plaintiff.
It is my opinion that all the above findings does not arise from the pleadings of the parties. An issue that does not arise from the pleading cannot at the close of pleading be invented by the Court. See; Udo Vs C.S.N.C (2001) 14 NWLR (Pt.732) page 161 – 162.
In the determination of dispute between the parties, the judgment of the Court must be confined to the issues raised by the parties in their pleadings, and not otherwise. It is therefore, not competent for a Court to suo moto make or formulate a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See; Agienoji Vs COP Edo State (2007) 4 NWLR (Pt.1023) page 23 at 41.
In the instance case the findings of the trial Court, does not arise from the pleadings of the parties and therefore perverse. It is trite law that appellate Court do not generally interfere with the findings of fact of a trial Court. However, an appellate Court will interfere where the findings are perverse.
A decision or finding is said to be perverse in the following instances;
i. When it runs counter to the evidence; or
ii. Where it has been shown that the Court took into account matters which it ought not to or shut its eyes to the obvious; or
iii. When it has occasioned a miscarriage of justice.
See; Udo Vs C.S.N.C (Supra) at page 157-158.
In the instance case, the decision of the trial Court run counter to the evidence and the Court having shut it eyes to the obvious, this Court will therefore interfere in the circumstance.
This lone issue is resolved in favour of the Appellant.
This appeal succeeds. The Judgment of the Kaduna State High Court delivered in suit No. KDH/KAD/951/2010 on 28/09/2011 by J.S. Abiriyi J. is hereby set aside. In its place I hereby order as follows;
1. There shall be judgment for the Plaintiff in the sum of N2,340,000.00 (Two Million, Three Hundred and Forty Naira) only against the defendant being balance of agreed contract proceeds share.
2. Interest rate of 10% per annum on the judgment sum from the date of this judgment until the whole judgment debt is liquidated.
ITA G. MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, ABDU ABOKI JCA, and I agree with his reasoning and conclusions.
I abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.
Appearances
O. OyerindeFor Appellant
AND
No appearance for the RespondentFor Respondent
