YAKUBU HUSSAINI ESQ v. SULAIMAN SAMBO & ORS
(2018)LCN/11888(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/K/140/2015
RATIO
CONTRACT: WHETHER PARTIES TO A CONTRACT ARE BOUND BY THE CONTRACT
“It is not in doubt that a contract may be oral or in writing. Where it is in writing, the party is precluded from giving oral evidence of its contents. See Stabilini v. Obasi (1997) 9 NWLR Part 520 Page 293 at 301 Para E; Page 304-305 Para E-H per Salami JCA (as he then was). Parties to a contract, I hold, are bound by the terms of the contract. In determining the rights and obligations of the parties to the contract, the Court must respect its sanctity and not allow a term on which there was no agreement to be read into the contract. Idufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 115 Para C-D per Galadima JSC; Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR Part 928 Page 547 at Page 574-575 Para H-A per Musdapher JSC (as he then was); Kaydee Ventures Ltd v Hon. Minister of Federal Capital Territory (2010) 7 NWLR Part 1192 Page 171 at 200 Para B-C per I.T. Muhammad JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
YAKUBU HUSSAINI, ESQ (Practicing as Yakubu Hussaini & Associates) Appellant(s)
AND
1. SULAIMAN SAMBO
2. KADUNA STATE DEVELOPMENT AND PROPERTY COMPANY LTD.
3. GODSWILL IYOHA IYOKE Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kaduna State High Court, delivered by Hon. Justice Hannatu Balogun on 26th of January, 2011. Dissatisfied with the decision, the Appellant appealed to this Court.
The Appellant was the Plaintiff before the lower Court and sought the following reliefs against the Respondents, as Defendants:
1. The sum of N20 Million being 10% of N200,000,000.00 as commission fees for arranging the transfer to the 2nd Defendants Approximately 47 hectares of land without payment of a consideration under a scheme designed by the plaintiff.
2. 10% on the said sum of N20,000,000.00 from the date of judgment till final liquidation of the said sum.
3. The cost of the action.
The lower Court, in its judgment, in dismissing the Appellant’s case, held that the Appellant has no cause of action against the 1st Respondent. It also held that the Appellant had failed to prove that he acted as agent to the 2nd Respondent as to entitle him to any fees, or that a case of collusion had been proved against the 2nd Respondent.
The Appellant, appearing in person, by his Brief of Arguments filed on 29/10/15 but deemed properly filed on 4/10/17 formulated 5 issues to be determined by this Court, as follows:
1. Whether there was a valid contract between the parties in this case in which the 2nd Respondent engaged the services of the Appellant.
2. Whether the Appellant indeed rendered any service to the 2nd Respondent and it so whether the 2nd Respondent is justified in the circumstance to deny or refuse to pay the Appellant for the services rendered.
3. Whether the 2nd Respondent is not stopped from denying a contractual relationship with the Appellant.
4. Whether the conduct of the Respondent did not constitute collusion to deprive the Appellant his entitlement on either side.
5. Whether the trial Court appreciate upon the preponderance of evidence which side the scale weights having regard to the evidence on side.
In response, the learned Counsel to the 1st & 2nd Respondents, in his Brief of Arguments, settled by Godwin Ochai Esq of Biola Oyebanji & Co filed on 23/9/16, deemed properly filed on 2/5/17 and further deemed as properly filed on 4/10/17, formulated three issues for the Court?s determination, namely:
1. Whether from the circumstance of the case, the Appellant acted as agent of the 1st and 2nd Respondent to entitle him to any enumeration from the 1st and 2nd Respondents.
2. Whether the 1st and 2nd Respondents are bound by the purported agreement between the Appellant and the 3rd Respondent.
3. Whether the Court should consider a witness deposition which was not adopted by witness.
In the Brief of Arguments of the 3rd Respondent, settled by himself, filed on 9/6/2017 but deemed properly filed on 7/2/18, two issues for the Court?s determination were formulated, namely:
1. Whether the subject appeal as constituted the Notice of appeal in respect of undisclosed judgment of Court and which was filed 46 months after judgment is competent (sic).
2. Whether the Appellant established the existence of any contract between himself and the Respondent in respect of which fees the Appellant was deprive of earning.
Counsel withdrew his Notice of Preliminary Objection filed on 25/11/16.
The issues distilled by the Appellant are similar to the issues raised by the other Counsel, save the 1st issue distilled by the 3rd Respondent?s Counsel. All these issues can be condensed into a single issue, to wit:
Whether the Appellant established the existence of any contract between himself and the Respondents, fees in respect of which he has been deprived of earning.
Before proceeding to the deliberation of the singular issue formulated above, a comment shall be made in respect of the 1st issue raised by the 3rd Respondent, to wit:
Whether the subject appeal as constituted the Notice of appeal in respect of undisclosed judgment of Court and which was filed 46 months after judgment is competent (sic).
In respect of this incomprehensible issue, the 3rd Respondent, referring to the Notice of Appeal dated 10th November, 2014 at page 00234 of the record has argued that the Appellant did not file his notice of appeal within 3 months of the judgment as provided for in Section 24(2) of the Court of Appeal Act. He claimed some irregularities in the said notice. He further submitted that, the original Notice of Appeal is the one at page 00234 of the records, which has 2 different certificate dates of 18/12/14 and 4/12/14, on the front cover page of the records and page 00238, respectively. He also submitted that the undated amended Notice of appeal filed on 24/6/15 does not disclose the particular decision of the trial Court appeal against as required by Order 6 Rules 2(1) & (2) of the Court of Appeal Rules, 2011, which non-compliance renders the entire appeal incompetent.
The first point to make is that issues for determination must be anchored and formulated from grounds of appeal filed. Any issue not so formulated will be struck out. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 339 Para E-F per Kekere-Ekun JSC; Federal Republic of Nigeria v. Mohammed (2014) 9 NWLR Part 1414 Page 551 at 588 Para A-B per Kekere-Ekun JSC.
Furthermore, a Respondent who did not file a Cross Appeal or a Respondent?s Notice, cannot formulate issues for determination not covered by the Appellant?s grounds of appeal. See Jatau v. Ahmed (2003) 4 NWLR Part 811 Page 498 at 508 Para E-F per Kalgo JSC; Mulima v. Usman (2014) 16 NWLR Part 1432 Page 160 at 203 Para E-F per Okoro JSC.
As it appears that this issue may have been predicated on the Preliminary Objection which he abandoned, no more need be said.
To recapitulate, the issue that arises for determination, is:
Whether the Appellant established the existence of any contract between himself and the Respondents, fees in respect of which he has been deprived of earning.
The case of the Appellant, as aforesaid, is for the sum of N20 million being fees for arranging the transfer of title of land to the second Respondent, when it (2nd Respondent) was unable to buy the said parcel of land when offered to it by the 3rd Respondent for N60 million.
Giving the designation of the parties, it alleged that the 1st Respondent was the Managing Director/Chief Executive of the 2nd Respondent, while the 3rd Respondent is a legal practitioner and the 4th Respondent, the Executive Director Operations. He alleged that the 3rd Respondent, his colleague, sought for his (Appellant’s) permission to offer the land to the 2nd Respondent for outright sale at N60 million. The 2nd Respondent declined the offer on the ground that it had no money to buy the land. The 1st Respondent together with its Executive Director Operations Malam Abdulkarim Aliyu, the 4th Respondent, who however died before the hearing of the matter, traced the Appellant to his office and requested him to arrange for them to own the parcel of land without first paying the N60 million consideration offered to them by the 3rd Respondent.
The Appellant accepted the proposed offer and contacted the land owners, prevailing on them to agree to the scheme proposed by the 2nd Respondent. The Appellant arranged for a meeting of all parties at the 2nd Respondent’s board room and produced Exhibit P1 (Memorandum of Understanding) which was the basis upon which the title of the land owners over the land was revoked and a new title created in favour of the 2nd Respondent.
The 2nd Respondent consequently partitioned the land and made out plots of land which they sold to the public, the proceeds from which were used to settle the land owners. The Appellant thereafter wrote and demanded for his payment from the 2nd Respondent who refused, on the ground that as the 3rd Respondent was their solicitor, they owed the Appellant no obligation.
The 1st and 2nd Respondents, in their joint Statement of Defence, denied that the Appellant prevailed on the land owners at their instance, insisting that the Appellant was paid by the land owners for the services he rendered to them. They denied ever having agreed to pay the Appellant 10% of the transaction or any sum at all, as he never acted on their behalf, the 3rd Respondent being their Solicitor and through whom they acted during the transaction.
The 3rd Respondent, while agreeing to the account of the Appellant with regard to the genesis of the transaction, denied that any agreement was reached between the parties for payment of any fees to the Appellant. The agreement between him and the Appellant was that they should each earn ‘brokerage’ fees from their respective clients by way of allocation of plots and that the Appellant assured him (3rd Respondent) that he would get 10% of the plots assigned to the Appellant by his clients, in addition to their monetary sums earned. He denied that the Appellant was entitled to any claims from him or that he hindered the Appellant’s right to his fees.
The 4th Respondent in his Statement of Defence and deposition on oath admitted the Appellant’s account of the transaction, also admitting that the 1st and 2nd Respondents agreed that if the Appellant was able to prevail over his clients, 10% will be given to him.
The Appellant, in proof of his claim, was the sole witness. The 1st and 2nd Respondents testified though one witness, Richard Aboki, the 2nd Respondent’s Company Secretary and Legal Adviser. The 3rd Respondent testified in his defence. The 4th Respondent, however, died before the case came up for trial.
The learned Counsel to the Appellant, in the Appellant’s Brief of Arguments contended that the relationship between the Appellant and the 2nd Respondent is that of a simple contract. Restating the facts of the case, he said the 1st Respondent instructed the Appellant, on behalf of the 2nd Respondent, to arrange a scheme, based on his proposal to the land owners, to agree to surrender their land title to the 2nd Respondents who however could not come up with the consideration. They offered to pay him 10% as commission if he could arrange the transfer of title over the land in question.
This offer was accepted by the Appellant who prevailed on the land owners to agree to the proposal, and the Appellant arranged for a meeting in the board room of the 2nd Respondent where all terms were agreed and Exhibit P1 produced between the 2nd Respondent and the land owners. This instrument formed the basis of the revocation of the old title and the creation of a new title in favour of the 2nd Respondent. There was thus a valid offer and an unqualified acceptance, creating a valid contract between the Appellant and the 2nd Respondent citing the case Nwokidu vs Okanu (2010) SCNJ 193-194. There is thus a corresponding duty on the 1st and 2nd Respondent to pay the Appellant for his services.
Exhibit P1, he submitted, made it possible for the 2nd Respondent to own 45 hectares of land for the next 99 years without paying any prior consideration. The 2nd Respondent can thus not justify its refusal to pay the Appellant on the ground that their agreement was not reduced in to writing, as the definition of contract has since transcended that level.
Citing Section 169 of the Evidence Act 2011, he submitted that the 2nd Respondent is estopped from denying their instruction to the Appellant, arguing that the denial was not by credible evidence. He urged the Court to hold that the 2nd Respondent, the main beneficiary of the Appellant’s industry, is bound by and is estopped from denying the existence of the amount claimed by the Appellant. He cited the case of Iga vs Amakiri (1976) 11 SC, Lawal vs Union Bank (1995) 2 SCNJ 132 @ 145 and Ude vs Osuji (1998) 10 SCNJ 75 at 82.
He alluded to contradictions and alleged hearsay evidence in the testimony of the witness for the 1st and 2nd Respondents, accusing the witness of being economical with the truth. He contended further, that the ‘evidence’ of Abdulkarim Aliyu, at Pages 00135-00136 of the Record is an admission, by virtue of the provisions of Section 123 of the Evidence Act, as amended. He cited the case of Kaydee ventures Ltd. Vs the Hon. Ministry of Federal Capital Territory (2010) 2 SCNJ 276. He submitted further that the refusal of the lower Court to evaluate the evidence clearly led to a miscarriage of justice, urging this Court to void the judgment.
In his response, the learned Counsel to the 1st and 2nd Respondents submitted that both parties to an agency relationship must be aware that one party is acting for the other and that there must be a consensus between the principal and agent either before or after the act, where the principal ratified the act of the agent. He cited the case of Ayua vs Adasu (1992) NWLR (Part 231) 598. There is nothing, from the totality of the documents relied on by the Appellant, that shows that he acted on behalf of the 2nd and 3rd Respondents in the transaction. The only document that shows his status is Exhibit D1, the same as that annexed to his document. Documents speak for themselves and oral testimony will not be allowed to vary the contents of a document, he submitted, citing Section 131(i) of the Evidence Act and the case of UBN vs Ozigi (1994) 3 NWLR (Part 333) 385.
He further submitted that the attempt by the Appellant to disown Exhibit D1 does not hold water as the Appellant pleaded and relied on the document and did not disown it at the trial Court and urged the Court to disregard and discountenance the same.
Learned Counsel further submitted that whatever agreement the Appellant and the 3rd Respondent had, cannot be binding on the 1st & 2nd Respondents as they are not parties or privies to the contract and cannot be made to incur any liability in respect of a contract to which they were not parties, submitting that there was no contract, oral, written or implied between the Appellant and the 1st and 2nd Respondents and urged the Court to so hold.
On the witness statement and pleadings of the 4th Respondent, he submitted that where a party fails to give evidence in support of his pleadings, such pleadings are deemed abandoned and that where a witness has filed his statement on oath but fails to adopt it, the Court must discountenance such statement as it is not subjected to the test of cross examination. He cited the case of Ikaria vs State (2014)1 NWLR (Part 1389) 6 39 at 646 Para A. Citing the case of Olofin vs Rasaki (2016) ALL FWLR (830) 1281 at 1306 Para A-B, he submitted that the mere adoption of a witness deposition does not constitute sufficient proof of the averments therein.
The 3rd Respondent, Mr. Iyoha, citing the cases of Akinbuiro vs Mobil Oil (Nig) Plc (2012) 14 NWLR (Part 1319) 42 and Omega Bank vs O.B.C Ltd 21 NSCQR 771, submitted that the Appellant did not establish with certainty the existence of any contract or agreement, the benefit of which he was deprived of earning, neither did he establish how he was commissioned to broker the acquisition or was deprived of his fees. No agreement was proved that he would be paid or made to earn the sum of N20,000,000.00 from the 2nd Respondent, he submitted, citing the case of Omega Bank vs. O.B.C. Limited (Supra) at page 794.
The Court, he said, is being left in the realm of speculation, citing the case of Obasi Brothers Merchants Co. Ltd v Merchant Bank of Africa Securities Ltd 21 NSCQR 275 Particularly at 286.
It is not in doubt that a contract may be oral or in writing. Where it is in writing, the party is precluded from giving oral evidence of its contents. See Stabilini v. Obasi (1997) 9 NWLR Part 520 Page 293 at 301 Para E; Page 304-305 Para E-H per Salami JCA (as he then was).
Parties to a contract, I hold, are bound by the terms of the contract. In determining the rights and obligations of the parties to the contract, the Court must respect its sanctity and not allow a term on which there was no agreement to be read into the contract. Idufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 115 Para C-D per Galadima JSC; Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR Part 928 Page 547 at Page 574-575 Para H-A per Musdapher JSC (as he then was); Kaydee Ventures Ltd v Hon. Minister of Federal Capital Territory (2010) 7 NWLR Part 1192 Page 171 at 200 Para B-C per I.T. Muhammad JSC.
Where the parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. Lewis v. United Bank for Africa Plc (2016) 6 NWLR Part 1508 Page 329 at 352 Para H per Okoro JSC.
In the instant case, the Appellant relies on Minutes of a meeting held on 14/8/2006, tendered in evidence as Exhibit D1.
I find it curious that the defence objected to this same document when it was sought to be tendered by the Appellant, as being unsigned and undated but they themselves turned round to tender the same document. What then was the point of objecting if they also were relying on the same document?
Litigation has gone beyond objecting to documents for the mere fun of it, causing trial Courts to embark on needless rulings, only to make a volte face and tender the self-same document. Does it matter who it is that tenders the document? Litigation has gone beyond infantile antics. Counsel are cautioned accordingly.
As stated above, the Appellant relied on this document, as well as Exhibit P1, the Memorandum of Understanding, in proof of the capacity in which he acted for the parties.
Exhibit D1 is headed:
”MINUTES OF MEETING HELD WITH OWNERS OF FARMLAND COVERED BY C OF O NO. NC4868 IN THE NAME OF ALH. ABDU MAIJINKA ALONG KACHIA ROAD, KADUNA SOUTH KADUNA KSDPC LTD BOARDROOM ON 14TH AUGUST, 2006.
The following were the parties in attendance, with their various designations, as follows:
”ATTENDANCE:
1. Suleiman Sambo
Managing Director/Chief Executive, KSDPC Ltd – Chairman
2. Abdulkarim S. Aliyu Executive
Director (Operations), KSDPC Ltd – Member
3. Balarabe I. Hassan
Assist. General Manager (Physical Plang. &
Dev. ) KSDPC –
4. Bar. Godswill Iyoha Iyoke –
5. Bar. Yakubu Hussaini –
6. Alh. Usman Abdu Maijinka –
7. Surv. Aliyu A. Soba
Senior Manager (Lands & Surveys), KSDPC Ltd – Secretary
The purpose of the meeting was stated under the sub-heading ‘Opening’ as follows:
”The MD/CEO welcomed all to the meeting. He stated the purpose of the meeting which is to discuss and enter into mutual agreement towards the replanning and disposal of the farmland into residential/commercial purpose. The MD/CEO gave history and insight of how KSDPC Ltd has been handling issues similar to this one. He said close to mind is the one KSDPC handled on behalf of New Africa Merchant Bank. He said their land was replanned and a layout was designed by KSDPC Ltd. He said a meticulous procedure was followed and the arrangement was concluded smoothly.
MD/CEO also mentioned that physical inspection of the land has been carried out and that a search had been conducted by Bar. Iyoke to ascertain it the land is free of any encumbrances.
He further said after careful study of the survey plan attached to the C of O, the size of land is given as 47.6Ha and not 76.4 as earlier reported in the letter of introduction of the issue by Bar. Iyoke. Bar. Yakubu Hussani who is the attorney for the land owners came in to say that after previous discussions on the issue, they have decided to enter into direct M.O.U. with KSDPC Ltd instead of the idea of selling the land. He said by their analysis of the situation, this way it will be easier and better for both sides. Bar. Yakubu Hussaini further said they have a target in mind and if it agrees with the package they will get through the deal, then all will be well. So he said, they want to know the nitty gritty of the M. O. U. arrangement
The MD/CEO further said that with such information above, the MOU will then define what each party will get from the premium value of the plots, he said payments of the premium values will be made through two bank drafts; direct to the owners of the land and the other to KSDPC Ltd, for planning, etc. at this stage, the MD/CEO called for closing prayer by Bar. Iyoke at 12.10pm.
The parties to the Memorandum of Understanding, I note, are the 2nd Respondent, and the owners of the land, represented by Ahmed Muhammed Lawal Shehu and Usman Shehu, referred to as ‘the Holders.’
The purpose of the Memorandum is stated, as follows:
”That in consideration for the change of purpose of the property to residential, the demarcation of the properly in plots and the sale and conveyance of the plots to the public, the holders hereby surrender their rights, title and interest in and over the agreed portion of the property to the company on the terms and conditions set out below:
1. that the holders hereby conditionally surrender all their rights, title and interest in and over the agreed portion so that same may be vested in the company.
2. That in line with the plan to alienate the property the company shall develop a high density residential layout, that is, high density site and service scheme on the land.
3. That the company shall charge a sum of N300,000.00 (Three Hundred Thousand Naira) only on each plot of land which will be shared into three parts under the conditions set out below.
a) The first part of N206,000.00 (Two Hundred and Six Thousand Naira) only shall be paid by each allottee in bank draft in favour of the holders into a Skye Bank account number 155104000072 as compensation for the land and un-exhausted improvements.
b) The sum of N58,000.00 (Fifty Eight Thousand Naira) only shall be paid by each allottee by bank draft into a dedicated account, which proceeds shall be used for the provision of infrastructure namely laterite roads, drainages and pipe borne water within the high density residential layout.
c) The sum of N36,000.00 (Thirty Thousand Naira) only shall be paid by each allottee in bank draft in favour of the company being administrative charges.
4. That, upon the execution of this memorandum, the company shall notify the Ministry of Lands, Surveys and Country Planning of the agreement and subject to the surrender of title to the property by the holders shall do everything necessary to facilitate the full and effective implementation of this agreement.
5. That, this agreement is valid for a term of 5 years from the date of its execution.
6. That, the surrender of the original certificate of occupancy to the company will not in any way howsoever affect the holder’s pecuniary interests in this agreement.
The Memorandum of Understanding was signed by the parties. Witnessing the signature of the Holders is the Appellant.
In none of these documents was any mention made of any agreement to pay any fees to the Appellant.
The trial Judge, in her judgment, postulated, as the issue for determination, the following:
Whether the Plaintiff has shown that he acted as Solicitors or agent for the 2nd Defendant as to entitle him to the fees claimed.
She pondered why the Appellant, who signed Exhibit P1, the Memorandum of Understanding, as Solicitor to the Maijinka Family (the Holders), can also claim to be Solicitor to the 2nd Respondent.
The trial Judge also pondered that if he was the Solicitor to the 2nd Respondent, why was it the 3rd Respondent that conducted the search.
The trial Judge questioned further:
”It is true that the Plaintiff persuaded the clients to accept the 2nd Defendant’s proposal but does that make him their agent and counsel entitling him to payment of fees from the 2nd Defendant? I do not think so.”
Referring to the documents before the Court, she considered them clear and unambiguous, showing the capacity in which the Appellant acted, as Counsel to the land owners, holding as follows:
”Whereas there was clearly an intention by the land owners and 2nd Defendant to enter into a legal relationship and they did so as shown by Exhibit P1, there is no document that shows that the 2nd Defendant entered into any contractual relationship with the Plaintiff.”
She disbelieved that there was any verbal contract between the Appellant and the 3rd Respondent and held it surprising that the 2nd Respondent would ”verbally enter into a contract that involves a whopping sum of N20 Million”, pointing out that ”Indeed the Plaintiff did not categorically state that the 2nd Defendant promised to pay him N20M or any specified amount”.The fact that the Plaintiff advised or persuaded his clients to agree to the deal does not translate into having a contract with the 2nd Defendant to be paid N20M if he convinces his clients. There is no evidence of this.”
The Court consequently held the 3rd Respondent not liable as the Appellant had failed to prove any collusion with the 2nd Respondent to deny him of his fees and concluded that the Appellant has no cause of action against the 1st Respondent and had failed to prove that he acted as agent to the 2nd Respondent to entitle him to fees.
Appellant’s Counsel has however argued that the deposition on oath of the 4th Respondent, Abdulkarim Aliyu, as contained at Pages 135-136 of the Record of Appeal is an admission, by virtue of the provisions of Section 123 of the Evidence Act, as amended.
To this contention, the lower Court observed that the Appellant was represented by Counsel on 19/3 when Counsel to the 4th Respondent announced the death of 4th Respondent, submitting that there was no one to substitute him, and requesting that his name be struck out, which application was not objected to by the Appellant’s Counsel, in consequence of which his name was struck out.
It held, in consequence:
”The Court cannot use the depositions of a witness who never adopted same nor was he cross examined.”
It is indeed true that the 4th Respondent, both in his Statement of Defence and witness statement on oath admitted the case of the Appellant. It is also true, as submitted by the Appellant that admissions of fact need no proof and that the other Respondents did not file processes in rejoinder. The law however is that a pleading which is not given support to by evidence is deemed abandoned. See CBN v. Okojie (2015) 14 NWLR Part 1479 Page 231 at 258 Para B-C; (2015) All FWLR Part 807 Page 478 at 501 Para E-G per Rhodes-Vivour JSC; Brawal Shipping Nigeria Ltd v. Ometraco International Ltd (2011) 10 NWLR Part 1255 Page 290 at 303, Para E , per Mukhtar JCA (as he then was).
In confirmation of the decision of the lower Court, I note, from the proceedings before the Court on 19/3/10, at Page 194 of the Record, before the commencement of pre-trial conference, Counsel to the 4th Respondent, Mrs. I. I. Obi, informed the Court that her client had died, applying that his name be struck out, and informing the Court that there is no one to substitute him. His name was accordingly struck out.
The 4th Respondent thus did not adopt his witness statement on oath.
A Witness Statement that has not been adopted cannot, I hold, be regarded as evidence before the Court. See Splinters (Nig) Ltd v Oasis Finance Ltd (2013) 18 NWLR Part 1385 Page 188 at 224 Para E-F per Iyizoba JCA; Funtua v Tijani (2011) 7 NWLR Part 1245 Page 130 at 149 Para C-E per Okoro JCA (as he then was).
It is only when a statement has been adopted by a witness, followed by his cross examination, if desired, that any admissions in the pleadings and the said statement are activated, I hold.
The pains of the Appellant are felt, as it appears that promises were made to him which were not kept. The lower and indeed this Court, however do not have the vires to go behind the documents presented before the Court, to unproven agreements between the parties. It would indeed, if so done, be entering into a realm of speculation, which it cannot do.
I thus see no reason to fault the judgment of the lower Court. It has painstakingly set out the principles of contract, applying the facts of the case before it in reaching its decision.
It is a settled principle of law that where a trial Court has carried its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v. Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC.
Resolving the sole issue for determination against the Appellant, I hold that this appeal has no merit and is accordingly dismissed. The judgment of the lower Court delivered by Hannatu Balogun J on 26/1/11 is accordingly affirmed.
Costs of N50,000 are awarded in favour of the Respondents and against the Appellant
UWANI MUSA ABBA AJI, J.C.A.: I was privileged to read in draft the judgment of my learned brother O. A. Adefope-Okojie, JCA, just delivered.
I agree with the reasoning and conclusions arrived at by my learned brother that the appeal lacks merit and it is also dismissed by me for the reasons therein contained in the lead judgment, which I adopt as mine. Consequently the judgment of the lower Court delivered on the 26th of January, 2011 is hereby affirmed.
I endorse the consequential order as to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I read in advance a draft copy of the leading judgment just delivered by OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. I entirely agree with the reasonings and decision leading to the dismissal of the appeal. I abide by the order made on costs.
Appearances:
Hayatudeen Suleiman with him, Aminu Hassan.For Appellant(s)
G. O. Ochai with him, Victoria Omajawa for 1st and 2nd Respondents.
T. O. Adu for 3rd Respondent.For Respondent(s)
