MOHAMMAD DAN BORNO v. H.R.H. ALHAJI BAFFA DAMBAM
(2016)LCN/8545(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of April, 2016
CA/J/201/2014
RATIO
PLEADINGS: IMPORTANCE OF PLEADINGS
The parties contested the suit on pleadings, oral and documentary evidence. Pleadings constitute the notice each party intends to canvass at the trial. See Obimiami Bricks and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at 35; Uwegba vs. Attorney-General, Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. Pleadings are suggestions of Counsel. They are not receivable against a party in proof of the truth of the facts stated therein unless verified on oath, signed or adopted by them. See Somisi vs. Sowemimo (1980) 2 FCA 153 at 160.
Averments in pleadings are deemed abandoned where no oral or documentary evidence is adduced to prove them. See Ojikutu vs. Fella 14 WACA 628; Balogun vs. Amubikanhuan (1985) 3 NWLR (Pt.11) 27 and UniJos vs. Ikegwuoha (2013) 9 NWLR (Pt.1360) 478 at 497. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: CROSS-EXAMINATION; ESSENCE OF CROSS-EXAMINATION
The credit of a witness is to be impeached during his testimony in the witness box. See Onwobodo vs. Onoh (1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike (1959) W.R.N.L.R. 16; Nwankwere vs. Adewunmi (1962) W.R.N.L.R. 298 at 302; Amadi vs. Nwosu (1992) 6 SCNJ 59 at 71 and Ajao vs. Alao (1986) 5 NWLR (Pt.45) 802; Obembe vs. Wemabod Estate Ltd. (1977) 5 SC 115 at 139 and Odulaja vs. haddad (1973) 11 SC 357. It is improper for a witness testifying in the box not to be cross-examined on a material issue but for a defendant to wait to call rebuttal evidence after the plaintiff or his witness had concluded their testimony. See Agbonifo vs. Aiwereoba & Anor. (1988) 2 SCNJ (Pt.1) 146 at 161; Babalola & Anor. vs. State (1989) 7 SCNJ 127 at 138-139; Nkwa vs. C.O.P. (1977) N.N.L.R. 98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183. PER JOSEPH TINE TUR, J.C.A.
COURT: WHAT IS THE DUTY OF TRIAL COURT IN MATTERS BEFORE IT
The duty of a trial Court is to make findings of fact on important issues raised in the pleadings, oral and documentary evidence. See Owoade vs. Omitola (1988) 5 SCNJ 1 at 14; Okpiri vs. Jonah (1961) 1 All NLR 102 and Okoye vs. Kpajie (1973) NMLR 84. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: ATTITUDE OF COURT TOWARDS THE VALUE OF EVIDENCE OF TRADITIONAL RULERS OR ELDERS IN THE COMMUNITY
The Courts have accepted that generally the evidence of traditional rulers or elders in the Community or society on a material point in controversy may, depending on each circumstance, be accorded weight unless proved otherwise. See Udo vs. Melifonwu (1961) 5 EWLR 93 at 96; Oyakoja vs. Ibadan District Council (1959) WRNLR 304 at 306 and Halsburs Laws of England, 3rd edition, paragraph 319 and 320 page 171.
In Nwawuba & Ors. vs. Enemuo & Ors. (1988) 19 NSCC (Pt.1) 930, Chief Nweke, the Chief of Urum, a traditional ruler and a one time Court member before the dispute arose admitted that the land in dispute belonged to Okibe, the head of the respondents family. The Supreme Court held at page 939 lines 18 to 25 per Nnaemeka-Agu, JSC thus:
an admission by the Chief of Urum as to the ownership of Okpokolo land long belong before this litigation began is a material and relevant fact which could be proved against subsequent generations of Urum people, of which the appellants form a part. Considering as I must, the circumstances in which the admission was made (for which see Seismograph Service (Nig.) Ltd. vs. Eyuafe (1976) 9, 10 SC 135), PER JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
MOHAMMAD DAN BORNO Appellant(s)
AND
H.R.H. ALHAJI BAFFA DAMBAM
(SARKIN DAMBAM) Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Every determination by a Justice of the Supreme Court or the Court of Appeal is, according to Section 294(2)-(4) read together with Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, to be headed an ?opinion? or a ?decision?. The Constitution being supreme, its provisions have binding force on all authorities and persons, including appellate Court Justices throughout the Federal Republic of Nigeria. See Section 1(1) of the Constitution (supra). In Davies vs. Powell (1737), Willes, 46, Willes, C.J. held at page 51 that: ?When the nature of things changes, the rules of law must change too.? In Jurisprudence, 4th edition, page 197 by Diaz, the learned author concurred as follows: ?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change.?
For the above reasons I have tagged or headed this determination a ?decision? to be in conformity with the constitutional requirements.<br< p=””</br<
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Mohammad Dan Borno, the appellant was the defendant and H.R.H. Alhaji Baffa Dambam the respondent was the plaintiff in the High Court of Justice, Borno State holden at Maiduguri. The Writ of Summons was initiated by the respondent against the appellant in the Court below on 9th January, 2013 accompanied with a statement of claim. In the course of trial, the original statement of claim was with leave of the Court amended.
The appellant filed a Statement of Defence on 30th January, 2013. With leave of the Court the Statement of Defence was also amended. The respondent filed a reply to the Amended Statement of Defence. The matter proceeded to trial. The parties relied on oral and documentary exhibits in support of their respective pleadings. At the close of the case learned Counsel submitted written addresses. The learned trial Judge A.Z. Mussa, J., rendered his decision on 27th February, 2014 and granted the reliefs claimed against the appellant.
Aggrieved by the decision the appellant filed a Notice of Appeal with four grounds of appeal. The appellant filed a brief of argument on 3rd September, 2015. The appellant distilled the following issues
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for determination:
?Whether having regards to the evidence adduced by the parties in this case more particularly that of the respondent, the trial Judge was right to have granted the reliefs sought by the respondent. (This issue is distilled from grounds 1, 2, 3 and 4 of the Notice of Appeal).?
The respondent filed a brief on 9th November, 2015. The lone issue formulated for determination by the appellant was adopted by the respondent. The parties should assume that I have read all the briefs and considered the arguments and authorities before arriving at this decision. See Order 18 Rule 3(3) of the Court of Appeal Rules, 2011.
The principal argument in the appellant?s brief is that the respondent did not adduce evidence to establish his claims in the Lower Court and was not entitled to judgment, citing Mozie vs. Mba (2006) 27 NSCQR 425 at 431. Learned Counsel took this Court through the oral and documentary evidence, citing Chief Ayogu Eze vs. Brigadier General J.O.Z. Okoloagu & Ors. (2009) LPELR-3922 and Dawodu vs. Isikalu (2011) LPELR-4488 to show that the authenticity of Exhibit ?D? was a live issue.
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Esenowo vs. Ukpong (1999) 6 NWLR (Pt.608) 611 at 617; Union Bank of Nigeria Plc vs. Charles Olusola Toyinbo (2008) LPELR-5056 at 50-51 paragraphs ?G?-?D? were referred to as showing that the appellant did not sign Exhibit ?D? hence it had no probative value, citing Seidu vs. Attorney-General of Lagos State (1986) 2 NWLR (Pt.21) 165; Attorney-General, Abia State & Ors. vs. Agharanya & Ors. (1999) 6 NWLR (Pt.607) 362 at 371 and Anaeze vs. Anyaso (1993) 5 SCNJ 151 at 168-169. Learned Counsel?s further contention is that the fact that an unsigned document was admitted in evidence without objection was immaterial as no weight could be attached to such a document, citing Musa Abubakar vs. E.I. Chuks (2007) LPELR- 52 (SC) and Afemai Microfinance Bank Ltd. vs. Seacos Nigeria Ltd. (2014) LPELR 22583 (CA).
Learned Counsel urged this Court to resolve the lone issue in favour of the appellant, allow the appeal and set aside the decision of the learned trial Judge.
?The contention in the respondent?s brief is that from all available records there was a business agreement governing the relationship between the
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parties which the appellant had breached. Reference was made to the custom applicable to the trade in Tokumboh Motors, citing Sections 16 and 19 of the Evidence Act, 2011; Ogbuli vs. Ogbuli (2012) 19 WLR 143 at 149 and Moh?d Hussain vs. Moh?d N. Moh?d (2015) NWLR (Pt.1445) 100 at 107. The learned Counsel argued that the appellant being an immigration officer knew the in and out of the business of trading in Tokumbo vehicles for a profit. Admitted facts need no further proof, citing Asewe Akpagher vs. Pius Gbangu & Ors. (2015) NWLR (Pt.1440) 209 at 214 and Oguanuhu vs. Chiegboka (2013) 6 NWLR (Pt.1351) 558 and Cross River State vs. Young (2013) 11 NWLR (Pt.1364) 1; Alhaji Sani Abubakar Danladi vs. Barr. Nasir Audu Dangiri & Ors. (2015) 2 NWLR (Pt.1442) 124 at 124.
Learned Counsel drew attention to Alechenu vs. UniJos (2015) 1 NWLR (Pt.1446) 333 at 340 as authority that the learned trial Judge was right to have relied on Exhibit ?D? to found in favour of the respondent: Omorhirhi vs. Enaterwere (1988) 1 NWLR (Pt.73) 746; NBA vs. A.R. Maduablu, Esq. (2015) 15 NWLR (Pt.1481) 148 at 149 and Ngige vs. INEC (2015) 1 NWLR
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(Pt.1440) 281 at 294.
?Learned Counsel again submitted that the respondent had discharged the burden of proof and was entitled to judgment as the learned trial Judge had properly evaluated the evidence before arriving at the decision, citing Anyaka vs. Anyaka (2015) 14 WRN 40; Doma vs. Agiri (1998) 3 NWLR (Pt.541) 246 at 268; Waju vs. The Governor of Oyo State & Ors. (1992) 9 NWLR (Pt.265) 335 and Hassan vs. State (2015) WRN 56 at 70. Learned Counsel urged that the lone issue should be resolved against the appellant and the appeal be dismissed.
The parties contested the suit on pleadings, oral and documentary evidence. Pleadings constitute the notice each party intends to canvass at the trial. See Obimiami Bricks and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at 35; Uwegba vs. Attorney-General, Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. Pleadings are suggestions of Counsel. They are not receivable against a party in proof of the truth of the facts stated therein unless verified on oath, signed or adopted by them. See Somisi vs. Sowemimo (1980) 2 FCA 153 at 160.
Averments in pleadings are deemed abandoned where no oral or documentary
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evidence is adduced to prove them. See Ojikutu vs. Fella 14 WACA 628; Balogun vs. Amubikanhuan (1985) 3 NWLR (Pt.11) 27 and UniJos vs. Ikegwuoha (2013) 9 NWLR (Pt.1360) 478 at 497.
Evidence to support pleaded facts may be oral or documentary depending on the facts and circumstances of each case. The relationship between the respondent and the appellant is set out in their respective pleadings. Paragraphs 3-7 of the respondent?s Amended Statement of Claim pleaded the following facts:
?3. That the plaintiff pleads that he instructed the defendant to use the capital of plaintiff with him to buy cows, sheep and animals feeds as suggested by the defendant (worth) Seven Million Naira (N7,000,000.00) in the year 2009. That failure to account for the money or its worth made the plaintiff to demand for the refund of the money which the defendant failed to do after repeated demands. The plaintiff reported the matter to the police where the defendant admitted owing Three Million, Seven Hundred Thousand Naira (N3,700,000) and promised to refund the money on 10th January, 2012 through an undertaking/agreement wrote in presence of Auwal Kadir Dambam.
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The copy of letter of admittance is attached and marked as Exhibit ?A? and will be relied upon at the trial of this suit. And the witness deposition on oath by one Auwal Kadir Dambam is annexed and marked as Exhibit ?C3?. Therefore, the plaintiff briefed A. Abba Aji, Esq. Counsel in the law Firm of A. Abba Aji & Co. The said Counsel wrote demand letters twice but still the defendant refused to comply hence this suit.
4. That the demand letters from A. Abba Aji & Co. hereby annexed and marked as Exhibit ?B? and ?B1?.
5. That plaintiff witnesses depositions on oath of BM Dambam and Umar Datti are hereby annexed and marked as Exhibit ?C1? and ?C2?.
6. That the plaintiff further pleads that he suffered generally as a result of non-remittance and accounting of his money by the defendant from 2009 to date.
7. WHEREOF the plaintiff claims as follows:
(a) An order that the plaintiff is entitled to the sum of Three Million Seven Hundred Thousand Naira (N3,700,000.00) being money owed and admitted by the defendant.
(b) An order of Court that the plaintiff is
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entitled to 10% interest on accrued money from 2009 to date.
(c) The cost of this suit.?
Paragraphs 2-20 of the appellant?s Amended Statement of Defence is a bare face denial of the facts pleaded by the respondent. They are as follows:
?1. The defendant admits paragraphs 1 and 2 of the claimant?s statement of claim.
2. The defendant denies paragraphs 3 of the claimant statement of claim and put the claimant to the strictest proof thereon.
3. In further denial of paragraphs 3 and 4 the claimant never gave the defendant 43 cattle, sheep not animals feed worth of N7,000,000.00 in the year 2009. Also the claimant never invited the defendant to account what transpired between them and did not write any agreement with the claimant nor anybody else to pay the sum of N3,700,000.00. Moreover, the defendant reply only to the letter of demand to account what actually transpired between them.
4. The defendant further deny paragraph 5 and put the claimant on strictest proof thereon.
5. In further denial of paragraph 5 above, the defendant never fixed date for remittance and or accounting of the said sum.
6.
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The defendant further states that sometimes in 2006, the claimant as a custom officer invited him start a Tokumbo Cars business with the defendant, from Nigeria to Benin Republic to bring vehicle together. They have been into the business for a short period of time with the promise to share the profit. The defendant used to send money via the claimant bank account with First Bank Plc where the defendant deposited nine hundred thousand Naira (N900,000.00) only and three hundred thousand N3,000,000.00) Naira only via same account.
7. The defendant later informed the claimant that he was having problem with custom officers because they knew the relationship between them, they arrested and detained him in several occasions.
8. That defendant and claimant both agreed to convert the business into farming and selling of cattle, before then the claimant provide the defendant with two vehicles to Ajilete town, at Idekims Hotel and the defendant made an instant cash payment of N1,700,000.00 to the claimant for the two vehicles, the defendant along with one customs officer by name Auwal Godawalle drove away the two vehicles. Moreso, there is a van (J5 Bus)
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belonging to the claimant parked at Kano Motor Park, Maiduguri.
9. The defendant started the business and a for start, he loaded a trailer full of cattle to Awka, Anambra State where defendant sold the cattle according to the market tradition bit by bit and later sent the money to the claimant via his First Bank Dambam B. M?s account No.2502010033700 deposited by one Mr. Aliyu two times.
10. The defendant further stated that he bought animal feed for the sum of N1,700,000.00 and kept same in Banki Town as instructed by the claimant.
11. The defendant also bought 27 cattle at the sum of N1,482,000.00 for fattening together with 10 Sudanese sheep in the sum of N25,000.00 each all to the claimant.
12. The claimant also instructed the defendant to take responsibility of medical treatment of one Modu Kawu Modu who was suffering from pyderma gangresosum and he was admitted in the University of Maiduguri Teaching Hospital (UMTH) on the July 6th 2006 and discharged on the 7th day of July, 2009 spending the total sum of N570,000.00 with folder No.189761, medical report is hereby annexed and marked as Exhibit ?A?.
13. The
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defendant further stated that the claimant instructed him to pay a house rent of one old man for the period of eight months in the sum of N8,000.00 which he did.
14. The defendant stated that the claimant has sometimes collected the sum of N20,000.00 to his family.
15. The claimant instructed me to give the sum of N200,000.00 to Umar Datti and he also instructed me to give the sum of N50,000.00 to one custom officer call Allaraini.
16. The defendant stated that he bought a house to the claimant here in Maiduguri at the cost of N670,000.00 in the year 2006 during the business the defendant spend the total of N65,000.00 to the District Head and furnishing the house, the agreement of purchase of the house is hereby annexed and marked as Exhibit ?B?.
17. The defendant states all that transpired between them, have been in record but unfortunately to the defendant his house was burnt in the 303 Housing Estate, Maiduguri as a result he lost the transaction record book. The police and fire service report is hereby annexed and marked as Exhibit ?C?.
18. The defendant states the claimant is not entitled to the claims as
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endorsed or any other claim whatsoever against the defendant.
19. The defendant shall found and reply on all document correspondences petition, etc. Whether specifically pleaded or not but are relevant or incidental to the just determination of this case as same is hereby pleaded.
20. Whereof the defendant shall at the trial urge the Court to dismiss the claim into with substantial cost and declare same as baseless, frivolous without merit.?
Auwal Kadir Dambam?s name featured prominently in paragraph 3 of the Amended Statement of Claim in whose presence the appellant wrote the undertaking to refund to the respondent the sum of N3.7 Million on 10th January, 2012. Auwal Kadir (PW3) adopted his sworn deposition on 15th May, 2013 and was cross-examined by the learned Counsel to the appellant. PW3 answered at page 61 lines 20 to page 62 lines 1-6 of the printed record as follows:
?PW3: Auwal Kadir, live in Dambam, Bauchi State. I am a cattle dealer. On 9th November and 10th November, 2011 do you remember what happened between the plaintiff and defendant, yes. And 26th April, 2013 you made statement on oath, yes. We are now
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applying to adopt the written statement on oath by Auwal Kadir filed on 26th April, 2013.
Court ? Statement made on oath by Auwal Kadir filed on 26th April, 2013 hereby admitted as evidence given before this Court.
CROSS-EXAMINATION:
I am Auwal Kadir. I am not their business partner, I do not know when the plaintiff and the defendant started their business. I don?t know whether it is written or oral, I don?t know whether the business was started in cash or kinds. I escorted H.R.H. Baffa to Banki Town; not only I escorted him but I know what was happening. H.R.H. informed of what is happening, I did not see the cattle. So in nutshell I was informed every thing about this transaction by the plaintiff.
RE-EXAMINATION:
Why did you accompany the plaintiff to Banki.
Objection: I didn?t asked that question.
Court ? Objection sustained.
Plaintiff Counsel ? So we closed our case. Counsel agreed on date i.e. 30th May, 2013 for defence.
May 20, 2013 for defence.?
It can be seen that the learned Counsel representing the appellant never cross-examined PW3 concerning the signing
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of Exhibit ?D? as pleaded in paragraph 3 of the Amended Statement of Claim.
The respondent (PW2) is a traditional ruler. He adopted his sworn deposition on 11th March, 2013 and was cross-examined. A cursory examination of the records of appeal will show that at no time did the learned Counsel representing the appellant impeach or discredit the evidence of PW3 regarding the authorship of Exhibit ?D?. Not a single question was asked by the learned Counsel in that regard. The evidence in that regard remained unchallenged.
The credit of a witness is to be impeached during his testimony in the witness box. See Onwobodo vs. Onoh (1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike (1959) W.R.N.L.R. 16; Nwankwere vs. Adewunmi (1962) W.R.N.L.R. 298 at 302; Amadi vs. Nwosu (1992) 6 SCNJ 59 at 71 and Ajao vs. Alao (1986) 5 NWLR (Pt.45) 802; Obembe vs. Wemabod Estate Ltd. (1977) 5 SC 115 at 139 and Odulaja vs. haddad (1973) 11 SC 357. It is improper for a witness testifying in the box not to be cross-examined on a material issue but for a defendant to wait to call rebuttal evidence after the plaintiff or his witness had concluded their testimony.
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See Agbonifo vs. Aiwereoba & Anor. (1988) 2 SCNJ (Pt.1) 146 at 161; Babalola & Anor. vs. State (1989) 7 SCNJ 127 at 138-139; Nkwa vs. C.O.P. (1977) N.N.L.R. 98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183.
The duty of a trial Court is to make findings of fact on important issues raised in the pleadings, oral and documentary evidence. See Owoade vs. Omitola (1988) 5 SCNJ 1 at 14; Okpiri vs. Jonah (1961) 1 All NLR 102 and Okoye vs. Kpajie (1973) NMLR 84.
Paragraphs 3-7 of the Amended Statement of Claim pleaded that the respondent is ?H.R.H.? meaning ?His Royal Highness? the ?Sarkin Dambam, Bauchi State.? PW3 is a traditional ruler. The Courts have accepted that generally the evidence of traditional rulers or elders in the Community or society on a material point in controversy may, depending on each circumstance, be accorded weight unless proved otherwise. See Udo vs. Melifonwu (1961) 5 EWLR 93 at 96; Oyakoja vs. Ibadan District Council (1959) WRNLR 304 at 306 and Halsbur?s Laws of England, 3rd edition, paragraph 319 and 320 page 171.
In Nwawuba & Ors. vs. Enemuo & Ors. (1988) 19 NSCC
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(Pt.1) 930, Chief Nweke, the Chief of Urum, a traditional ruler and a one time Court member before the dispute arose admitted that the land in dispute belonged to Okibe, the head of the respondent?s family. The Supreme Court held at page 939 lines 18 to 25 per Nnaemeka-Agu, JSC thus:
an admission by the Chief of Urum as to the ownership of Okpokolo land long belong before this litigation began is a material and relevant fact which could be proved against subsequent generations of Urum people, of which the appellants form a part. Considering as I must, the circumstances in which the admission was made (for which see Seismograph Service (Nig.) Ltd. vs. Eyuafe (1976) 9, 10 SC 135), I cannot but come to the conclusion that it is a very strong piece of evidence against the 2nd set of appellants as to the ownership of that part of Akpuo land verged green in Exhibit ?A?.
page 939 lines 43 to page 940 lines 1-9 his Lordship concluded as follows:
?In addition to the above, I cannot ignore the fact that the respondents called nine witnesses who were obviously believed in view of the various findings of fact I
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have referred to, and which have not been faulted in this appeal. On the above state of the facts, there can be no doubt that respondents proved their case. But I should not fail to mention certain aspects of the case for the appellants which further strengthen the respondents? case. I have set out the view of the learned trial Judge on the evidence of the appellants? star witness, DW2, the recognized traditional ruler of Urum who testified that the land in dispute was property of the respondents and Umuokpaleke sub-family of Akanabo Urum. Umuokpaleke did not however advance any claim to the land on their own. Nor did any pleading on behalf of the appellants support such a case. In the final analysis it is therefore, the admission that the land belongs to the respondents that becomes relevant and significant. It is a matter of common knowledge that old men and traditional rulers are by their positions not only in a position to know the true facts in land dispute but also often find it difficult to twist the truth. The important admission by the recognized traditional ruler of Urum in this regard has a ring of truth. It appears to me to be more than
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a mere coincidence that in 1945, Chief Okafor Nweke, the then Chief of Urum, in the Native Court, suit No.20 of 1945, admitted, in the solemn atmosphere of the Court, that the part of Akpuovu land called Okpokolo by the appellants belonged to the respondents predecessor-in-title; and now his son, again the Recognized Traditional Ruler of Urum, made an admission to the like effect.?
The appellant swore to a deposition on 15th January, 2013 which is as follows:
?I Muhammed Dan Borno, Adult, Male, Muslim and a Nigerian citizen of residence in 303 Housing Estate, Maiduguri do hereby make oath and state as follows:
1. That I am the defendant in this suit by virtue of my position I am conversant with the fact of this case.
2. That sometimes in 2006 we started a Tokumbo business with the claimant we use to go to Benin Republic together and bring vehicles for sale, are doing in peacefully for short period of time with the promise of sharing profit proportionally together for the first time we sent the sum of N900,000.00 (Nine Hundred Thousand Naira) though his account with First Bank and also N300,000.00 (Three hundred thousand
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Naira).
3. That I informed the claimant that I was facing much problems with custom officers because they know my relationship with the claimant and defendant they arrested and detained me several occasions.
4. That myself and the claimant agreed to convert the business into fattening and selling of cattle, then the claimant provides two vehicles in lieu of which I paid him the sum of N1,700,000.00 moreso, I packed a van (J5 Bus) belonging to the claimant at Kano Motor Park, Maiduguri.
5. That claimant instructed me to give the sum of N200,000.00 to Umar Datti he also instructed to give N50,000.00 to custom Officer called Allaraini.
6. That I started fattening and loaded one trailer of cattle to Awka, Anambra State, after sale, I sent money through the claimant account with First Bank ? Dambam B.M.?s Account No.2502010033700 deposited by one Mr. Aliyu two times.
7. That I further bought animal feed for the sum of N1,700,000.00 and kept same in Banki Town as instructed by the claimant.
8. That I bought 27 cattle at the sum of N1,482,000.00 for fattening together with 10 Sudanese sheep in the sum of N25,000.00 each
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all to the claimant.
9. The claimant instructed me to treat Modu Kawu who was admitted in the University of Maiduguri Teaching Hospital (UMTH) on the July 6th, 2006 and discharged 2009 after spending the sum of N570,000.00 only.
10. That the claimant instructed me to pay a house rent of an old man at Hausari Ward, Maiduguri for eight months in the sum of N8,000.00 cash, the claimant also instructed me to give the sum of N20,000.00 cash to his family.
11. That I bought a house on behalf of the claimant in Maiduguri at the sum of N67,000.00 and gave the sum of N30,000.00 to District Head as witness, the defendant also furnished the house with the sum of N35,000.00
12. That all the transaction between us had being in my entry book for record purpose but my house at 303 Housing Estate, Maiduguri was burnt as a result of fire incident that is why I lost my entry book.
13. That I urge the Court to dismiss the claimant claim with substantial cost and declare same as baseless, frivolous and without merit.
14. That I swear to this affidavit in good faith and in accordance with Oath Act.?
?The appellant adopted the sworn
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deposition on 30th May, 2013 and was cross-examined by the learned Counsel to the respondent. The appellant was confronted with the agreement of 10th November, 2011 but simply answered, I don?t know anything about? (See page 73 lines 20 of the printed record). The deposition of the appellant is at variance with the facts pleaded in the Statement of Defence and is in conflict with the Amended Statement of Claim.
The evidence by PW3 that it was the appellant who wrote Exhibit ?D? was never impugned or impeached in the Lower Court under cross-examination. Exhibit ?D? reads as follows:
?University of Maiduguri Teaching Hospital (UMTH)
P.M.B. 1414
Maiduguri,
10th November, 2011
AGREEMENT BETWEEN:
MOH?D DAN BORNO AND BAFFA DAMBAM
I Moh?d Dan Borno Jaran made an agreement to refund the sum of N3.7 Million Naira on 10th January, 2012. In Sha Allah at the present of Auwal Kadir Dambam.
SGD.
Giver?s Name: Dan Borno
Address: UMTH,
SGD.
Date: 10/11/2011.?
?The learned trial Judge made findings regarding Exhibit
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?D? at page 99 lines 9 to page 100 lines 1-27 of the printed record as follows:
?There is no doubt that there is a contract of trust between the claimant and the defendant and the Court have observed in the case of A-G. Rivers State vs. A-G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) page 31 at page 48 that ?where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deceit or misrepresentation, they are bound by the provisions or terms of the contract of agreement.?
At a close examination of Exhibit ?D? shows that the defendant agreed to return the sum of N3.7 Million on 10th January, 2012, to Baffa Dambam the claimant herein.
The general rule of the law is that where parties have embodied the terms of their agreement or contract in a written document, no extrinsic evidence to add to alter, subtract from very or contradict the terms freely agreed to by them would be permitted. Their rights and obligations under the said contract would be determined by such terms specially set out in the agreement itself and not evidence outside
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it. See UBN vs. Ozigi (1994) 3 NWLR (Pt.333) 385; Koiki vs. Magnusson (1999) 8 NWLR (Pt.615) 492; Ojoh vs. Kamalu (2006) All FWLR (Pt.297) 988.
It is also a settled law that a party cannot be heard to deny any obligation under the contract which they freely made. The terms and condition of the written contract and/or agreement and indeed all its contents cannot be contradicted, altered, added to or varied by oral or other evidence outside and extraneous to it. See the case of Elder Eseme Akpan vs. Ekanabasi Asibong Ubong (2013) LPELR-20418 (CA).
Considering the above authorities and relying on Exhibit ?D? I have no doubt in my mind that the defendant voluntarily and freely written said agreement to refund the sum of N3,700,000.00 to the plaintiff and he must be liable.
Regard to interest accrued the claimant has not led evidence to show that the business was in progress from the date the defendant agreed to refund the sum of N3.7 Million to date. In view of this I declined to award any interest accrued to the plaintiff.
In view of the forgoing I therefore, hereby entered judgment for the claimant, and ordered as follows:<br< p=””
</br<
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(a) That the claimant is entitled to the sum of Three Million Seven Hundred Thousand Naira only (N3.7m) and same shall be refunded to the claimant.
(b) That the claimant is not entitled to any interest accrued.
(c) N50,000.00 cost of this suit.?
I have read the records. Even without Exhibit ?D? there is ample evidence to support the findings of the learned trial Judge.
In Kimdey & Ors. sv. Military Governor of Gongola State & Ors. (1988) 19 NSCC (Pt.1) 827 Karibi-Whyte, JSC held at page 838 lines 25-50 as follows:
?This Court has been invited to reverse the findings of fact of the two Courts below that the right to the Longuda Chieftaincy between the Bonsibe and the Bonkumbebe is not rotational. There is the well settled presumption of the correctness of the findings of fact of Courts below, and the presumption must be displaced to reverse the finding of fact ? See Williams vs. Johnson (1937) 2 WACA 253. It is also well settled that this Court will not lightly interfere with concurrent findings of fact of the Courts below. In Ogundipe vs. Awe & Ors. (1988) 1 NWLR 118 at page 125 this Court
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affirmed its often repeating proposition that it will not interfere where there have been concurrent findings of facts by the Courts below unless such findings are shown to be perverse or not the result of a proper exercise of discretion. (See Obaseki, JSC at page 125, Wali, JSC at page 127).
It is not the primary function of this or any appellate Court to make findings of facts or to appraise evidence. Also where the finding of fact is based entirely on the credibility of the witness, this Court will be reluctant to interfere. See Kponuglo vs. Kodaja (1932) 2 WACA 24. The duty to make primary findings of fact by the evaluation of the evidence before him by the additional advantage of watching the demeanour of witnesses is essentially preserved for the trial Court ? See Egir vs. Uperi (1974) 1 NMLR 22. However, where the issue relates to the proper inference to be drawn from the facts proved, the Court of Appeal, including this Court, is in as good a position as the Court of trial, and will draw the proper inference naturally following from the facts so proved ? See Akesse vs. Akpabio (1935) 2 WACA 264.
The Court of Appeal will reverse
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the findings of fact if in its opinion, it is not supported by the evidence ? See Lengbe vs. Imale (1959) WRNLR 325. This Court will however not reverse the finding of fact of the Court below merely because it would have found differently. See Ogundulu vs. Philips & Ors. (1973) NMLR 267.?
?Nnaemeka-Agu, JSC held at page 851 lines 7 to page 852 lines 1 to 13 of the judgment as follows:
?No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one. In Fashanu vs. Adekoya (supra), Coker, JSC put the principle very succinctly where he held at pages 91-92:
?Undoubtedly, the duty of the Court in ascertaining ? the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to
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test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.?
The decisive point in this appeal is, however, that apart from Exhibits ?1? and ?2? which appear to favour appellants? case, there are Exhibits ?3? and ?4? in his decision and it has not been suggested that he did not advert to Exhibits ?1? and ?2?. Besides there is Exhibit ?5?, captioned ?The Appointment and Deposition of Chiefs (Appointment of Chief Longuda) Order 1968? stated to have commenced on the 26th of March, 1968. It bears the common seal of Numan Federation Native Authority and appears to have been signed by the Secretary. It was tendered in evidence as ?the Order relating to the Chief of Longuda? and admitted without objection. As it bears the seal of the Authority, it concludes this case against the appellants in that it shows the new practice of selection of the Chief. Neither in this Court nor in the Court of Appeal has its authenticity been
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impeached in any ground of appeal, quite apart from the fact that it was admitted in the Court of trial without objection. The learned Counsel for the appellants only tried to attack it in his oral submissions before us. In my judgment that will not do. Though it was not used in the Court below I am entitled to draw any legitimate inference from it, as it was admitted without objection and has not been faulted (Akpapuna vs. Nzeka (1983) 1 SCNLR 1). But by far the greatest injury to the appellants? case was in the oral testimony of PW1, Wilfred Kimde, the 11th plaintiff/appellant himself. Under cross-examination by the learned Counsel for the respondents, he himself showed conclusively that the history of the previous successions to the Chieftaincy stool did not support the strict alternation between the two clans which the appellants are insisting upon. He admitted that Dukel of Bonsibe was followed by Potu, also of Bonkumbebe. Similarly Githir of Bonkumbebe was followed by Delo of the same clan. At a certain time Suleiman, Gogo, and Yoila of Bonsibe followed one after another. So the history admitted by the appellants does not support their case in this
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appeal.
So, whereas Exhibits ?1? and ?2? tend to support the appellants? case, Exhibits ?3?, ?4? and ?5? as well as a substantial body of the oral testimony tendered supported the respondents? case, which was preferred by the learned Chief Judge and confirmed by the Court of Appeal. In short, in a case like this where the documentary evidence before the Court goes both ways and one side has a more substantial support of the oral testimony before the trial Court, that set of documentary evidence which has more substantial support of the oral testimony outweighs the other. If, as is the case here, the trial Court prefers that set of documentary evidence, the appellate Court should not interfere. In need not repeat that there is a presumption that a trial Judge?s decision on facts is correct, findings on primary facts being essentially within the province of the Court of trial. For one to appeal successfully on facts, he must affirmatively displace that presumption: See Bakare Folorunso vs. I.A. Adeyemi (1975) 1 NMLR 128; Williams vs. Johnson (1937) 2 WACA 253. The appellants have
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woefully failed to displace that presumption in this case. Rather the learned Counsel on their behalf wants us to embark anew on the task of re-evaluating the same evidence which the two Lower Courts have already evaluated and come to their conclusions thereon. This is exactly what we ought not to do, even if we may arrive at different conclusion thereon. This is exactly what we ought not to do, even if we may arrive at different conclusions on them: See Asani Balogun & Ors. vs. Alimi Agboola (1974) 1 All NLR (Pt.2) 66.?
I uphold the findings and conclusions of the learned trial Judge (as he then was) and dismiss this appeal as lacking in merit. I assess N50,000.00 cost to the respondent.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, JOSEPH TINE TUR, JCA.
I am in total agreement with the reasoning and conclusions of his Lordship therein.
?Consequently, I hereby dismiss the appeal and abide by the orders made therein.
RIDWAN MAIWADA ABDULLAHI, J.C.A.:
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I have had the privilege of reading in advance the decision prepared by my learned brother, JOSEPH TINE TUR, JCA just delivered. I agreed with his reasoning and conclusions arrived at after due consideration of all the issues raised for determination in the appeal.
?The appeal has no merit and should be dismissed and I also endorsed the order made as to costs.
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Appearances:
E.O. Akhayere, Esq. with him, N.K. Dariyem, Esq. and M.O. Alu, Esq.For Appellant(s)
–For Respondent(s)
Appearances
E.O. Akhayere, Esq. with him, N.K. Dariyem, Esq. and M.O. Alu, Esq.For Appellant
AND
–For Respondent
