SWISS PHARMA NIGERIA LIMITED v. CORNELIA MARSH-OKORO & ORS
(2018)LCN/12252(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/L/127/2009
RATIO
EVIDENCE: WHETHER EVIDENCE CAN BE GIVEN TO COVER A COUNTER CLAIM
“It is trite that evidence can be given by a plaintiff to cover his defence to a counter-claim where it is intertwined with the main claim, as in this case; therefore the respondents cannot be right in their contention that the appellant was required to file additional statement on oath for the defence to the counter-claim when frontloaded evidence by the appellant accommodated the defence to the counter-claim vide Dabup v. Kolo (1993) 9 NWLR (pt. 317) 254. There is therefore no substance in the respondents’ contention that there was no evidence by the appellant in support of its defence to the counter-claim.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PLEADING: WHETHER PARTIES ARE BOUND RELIEF SOUGHT IN PLEADINGS
“Parties are bound by the reliefs sought in the pleadings vide A.C.B. Ltd. v. A. G., Northern Nigeria (1969) NMLR 231 followed by the Supreme Court in the case of Commissioner for Works, Benue State and Anor. v. Devcon and Anor. (1988) 3 NWLR (pt. 83) 407 at 420 to the effect that a claimant is bound by the case put forward in the writ of summons and pleadings where pleadings were filed as in this case.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SWISS PHARMA NIGERIA LIMITED Appellant(s)
AND
1. CORNELIA MARSH-OKORO
2. PHARM IMPACT NIGERIA LIMITED
3. OSBUD PHARMACY AND STORES LIMITED Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below), whereby it dismissed the appellant’s claim of failure of consideration for goods supplied on credit to the respondents as well as the claim of set-off by the respondents and the striking out of the counter-claim of the respondents.
The facts, in brief, were that by commercial arrangement between the appellant and the respondents, the former used to usually supply the latter some pharmaceutical goods on credit. Each supply was invoiced and corresponding payments made by the respondents redeemed the credit. It was the appellant’s case that it supplied the respondents pharmaceutical goods on credit worth N8,728,408.40 duly invoiced but unpaid for by the respondents, upon which the appellant sued to recover the unpaid sum of money with 21% interest per annum thereon.
The Court below heard the case on the merit and dismissed it for lacking in proof as well as the counter-claim and set off. The appellant was unhappy with the judgment of the Court below and appealed against it on a notice of appeal with two grounds of appeals. The brief of argument of the appellant was filed on 25.03.10, in which the appellant contended that the invoices, Exhibits M-M8 and J-22, had established the claim of N2,911,983.00 and N5,816,425,00, respectively, for the pharmaceutical goods supplied to the respondents yet the Court below relied on Exhibits V-V23, particularly Exhibits V, V1, V3, V9 and Z – Z9 tendered by the respondents as payments for the supplied goods when the respondents admitted partial liability of their indebtedness to the appellant to the tune of N3,156,033.40 and had at the same time counter-claimed for N926,583.60 contrary to their assertion that the appellant was allegedly indebted to them to the tune of N4,082,617, therefore the respondents approbated and reprobated; and that having regard to the evidence establishing the claim the Court below should have entered judgment for the appellant citing in aid the cases of Verschures Creameries Ltd. v. Hull and Netherlands Streamship Company Limited (1921) 2 KB 608 at 610 and 612, Sanusi v. Ameyogun (1992) 4 NWLR (pt. 237) 527 at 547.
The appellant contended that in a bid to establish the counter-claim the respondents tendered Exhibits Z – Z9 and V-23 which did not tally with the invoices, Exhibits J – J22 and M – M8, which the Court below rightly observed to be so, but rather than dismiss the counter-claim for lacking in proof the Court below merely struck it out, therefore the Court below erred and that the appropriate order of dismissal of the counter-claim should be entered as a counter-claim is a distinct cause of action citing in aid Civil Procedure in Nigeria (2nd Edition) 398 by Fidelis Nwadialo (SAN), Oyegbola v. Esso West Africa Incorporated (1966) 1 ALL NLR 170 at 171, Prime Merchant Bank Ltd. v. Man Mountain Company (Incorporated Insurance Brokers) (2000) NWLR (pt. 661) 524, Obi v. Biwater Shella Bear Nig. Ltd. and Anor. (1997) 1 NWLR (pt. 484) 722 at 727, A. ? G., Bayelsa v. A. ? G., Rivers State (2006) 18 NWLR (pt. 102) 596, National Bank of Nigeria Ltd. v. Olatunde and Co. Ltd. (1994) 3 NWLR (pt. 334) 512 at 516.
The appellant contended that the statement made suo motu by the Court below that the respondents should put their house in order properly and bring a separate action, if found desirable, amounted to ruling on an application not brought by the parties contrary to Order 24 Rule (1) and (8) of the High Court of Lagos State (Civil Procedure) Rules, 2004 (the rules of the Court below), therefore the appeal should be allowed and the judgment of the Court below set aside.
The respondents filed a brief on 07.05.10, in which it was contended that the CW1 admitted under cross-examination that the respondents had paid for all the goods supplied in respect of the invoices pleaded in paragraph 13 of the statement of claim, therefore the Court below was right in relying on the admission to dismiss the appellant’s case for lacking in proof; that the appellant did not file defence against the counter-claim showing the appellant did not oppose the defence and counter-claim by not filing defence and statement on oath challenging the counter-claim, therefore the appellant’s pleading is deemed abandoned especially as it was filed out of time without regularisation; and that judgment should have been entered on the counter-claim as the appellant had admitted the sum of N4,082,617 indebtedness to the respondents in writing in Exhibit W in page 331 of the record of appeal (the record) citing in aid the case of Ifeta v. Shell Petroleum Development Company of Nigeria Ltd (2006) 26 NSCQR 605 at 614; upon which the respondents urged that the appeal should be dismissed and the cross appeal on the counter-claim allowed.
The appellant’s reply to the statement of defence and defence to the counter-claim contained in pages 225 – 228 of the record were said by the respondents to have been filed out of time without regularisation and should be disregarded and if so disregarded it followed the counter-claim was not controverted and established on the pleadings.
There is no indication that the respondents raised objection to the late filing of the reply to the statement of defence and defence to the counter-claim by the appellant at the Court below. It is therefore inappropriate and late in the day to raise the objection to the reply to statement of defence and defence to the counter-claim on that ground vide Savannah Bank of Nigeria Plc v. Kyentu (1998) 2 NWLR (pt. 536) 41, Akumechiel v. B.C.C. Ltd. (1997) NWLR (pt. 484) 695, Nkwocha v. M.T.N. (2008) 11 NWLR (pt.1099) 460 and British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt. 277) 507 to the effect that a statement of defence filed out of time and used at the Court of first instance cannot be objected to on appeal even if the statement of defence filed was a proposed one.
In addition, it was held by the Supreme Court in the case of U.B.A. v. Nwora (1978) 11 ? 12 S.C. 1 that a statement of defence filed out of time should be deemed regularised by the Court suo motu and used in the action in the interest of justice.
The reply to the statement of defence and defence to the counter-claim dated 07.10.2005 and contained in pages 225 – 228 of the record are thus valid.
The respondent is accordingly wrong to contend that the counter-claim was proved on undenied pleadings; more so, the damages counter-claimed are special in nature and require strict proof by evidence as damages are always deemed to be in issue unless specifically admitted on the pleadings by the opponent or defendant vide Osuji v. Isiocha (1989) 3 NWLR (pt. 111) 623.
It is trite that evidence can be given by a plaintiff to cover his defence to a counter-claim where it is intertwined with the main claim, as in this case; therefore the respondents cannot be right in their contention that the appellant was required to file additional statement on oath for the defence to the counter-claim when frontloaded evidence by the appellant accommodated the defence to the counter-claim vide Dabup v. Kolo (1993) 9 NWLR (pt. 317) 254. There is therefore no substance in the respondents’ contention that there was no evidence by the appellant in support of its defence to the counter-claim.
The CW1 answered under cross-examination in page 534 of the record unedited that –
“Yes, I handled Defendants account with the claimant. She paid for the first set of invoices in paragraph 13 of the statement of claim but we are saying there is a shortfall in the totality of payment for the goods collected. I have seen all the documents filed by the Defendants.
Yes, the Defendants exhibited the receipt of invoices as stated in paragraph 13 of the Amended Statement of Claim dated 11/10/2006.”
Paragraph 13 of the amended statement of claim pleaded the invoices that remained outstanding and unpaid for by the respondents which the CW1 for the appellant admitted were paid for by the respondents with a bland rider that there was a shortfall in the totality of the payments without identifying and specifying the shortfall showing the appellant admitted through its own witness, CW1, that the respondents had paid for the outstanding invoices.
The solemn admission made on oath by the CW1 (supra) is binding on the appellant and was rightly used against the appellant by the Court below vide Iga v. Amakiri (1976) 10 N.S.C.C. 611.
The Court below took into account the admission of CW1 under cross-examination together with the other pieces of evidence to hold that the appellant did not establish the claim in these words in part of its judgment in pages 630 – 631 of the record in these words –
“The Claimant in paragraphs 10, 11, 13 of its Amended Statement of Claim referred to outstanding invoices in which it alleges that the Defendants have not made payment on. However, while being cross-examined by the Defendants’ Counsel on 10/10/07 after he was re-called by Claimant’s Counsel to give further testimony in this case, C.W.1 admitted that the Defendants had paid for the first set of invoices listed in paragraph 13 of the Claimant’s statement of claim dated 11/10/06. He further acknowledged the receipts of the invoices exhibited by the Defendants in support of the payment. He also admitted that sometimes when the Defendants paid on account the receipts issued by the Claimant will not refer to the invoices concerned. The Defendants have also been able to tender receipts and invoices marked paid to counter the Claimant’s claim.
I also refer to Exhibit ‘Z7’ with particular reference to the note written to the Senior Cashier of the Claimant by the 1st Defendant requesting that he corrects a receipt issued to her as it did not reflect payments made for some invoices. I have taken cognizance of the response of the Senior Cashier on the same Exhibit ‘Z7’ wherein he stated that it has become impossible to effect the correction but assured the 1st Defendant that it has been posted to the system. This supports the fact that the Claimant was careless in the way and manner Defendants account were handled by them.
I also believe the evidence of the Defendants through their witness D.W.1 (the Defendant) that payment made on account cannot correspond in date and amount in any invoice because such payment is made in advance against possible future purchases. In my view, this is the area the Claimant muddled up the accounts of the Defendants. The Defendants have been able to tender receipts for the goods supplied including invoices without individual receipts and invoices with individual receipts. I refer to Exhibits ‘Z-Z9’ and ‘V-V23’.
From the foregoing and applying the principle of law highlighted earlier in this judgment. I hold that the Claimant has not been able to discharge the burden of proof placed on it. It is trite that he who asserts must prove the existence of the said fact. See the case of Chemical and Allied Products PIc V Vital Investments Ltd, (2006) 6 NWLR pt. 976, pg. 220 at 267.
The appellant did not demonstrate convincingly how the Court below did not properly appraise the documentary evidence. I am satisfied that there was proper evaluation of the documentary Exhibits as shown in the judgment of the Court below which is borne out by the said documentary Exhibits and the oral evidence in the record.
Had the Court below shirked its primary responsibility of evaluating the documentary evidence, I would have done so under Section 15 of the Court of Appeal Act, 2004, as amended, read with the case of Salzgitter Stahl GMBH v. Tunji Dosunmu Ind. Ltd. (2011) 11 NWLR (pt. 1206) 589.
Accordingly, I find no merit in the appeal with respect to the appellant’s case and hereby dismiss it and affirm the decision of the Court below dismissing the appellant’s action.
The Court below acknowledged in its judgment in page 633 of the record that the appellant wrote a letter, Exhibit W, to the respondents admitting the sum of N4,082,617.00. The Court below none-the-less struck out the counter-claim of the respondent in its entirety with the advice that ?the counter-claimant should therefore put his house in order properly and bring a separate action if she still wants to pursue same.”
Exhibit W is a letter from the appellant admitting indebtedness of N4,082,617.00 to the respondents. It is trite that written communication admitting liability is final, conclusive and binding on the author of the written communication vide U.P.N. v. Poatson Graphics Arts Trade Ltd. (1982) C.A. 373, Kenfrank (Nig.) Ltd. v. U.B.N. Plc (2002) 8 NWLR (pt. 789) 46 at 74 and Ifeanyichukuwu Trading Investment Ventures Ltd. and Anor. v. Onyesom Community Bank Ltd. (2015) 17 NWLR (pt. 1487) 1 at 27, 37 – 38.
The counter-claim was however for the sum of N926,583.60. It was not amended to incorporate the sum of N4,082,617.00 indebtedness admitted in Exhibit W. Parties are bound by the reliefs sought in the pleadings vide A.C.B. Ltd. v. A. G., Northern Nigeria (1969) NMLR 231 followed by the Supreme Court in the case of Commissioner for Works, Benue State and Anor. v. Devcon and Anor. (1988) 3 NWLR (pt. 83) 407 at 420 to the effect that a claimant is bound by the case put forward in the writ of summons and pleadings where pleadings were filed as in this case.
It is trite that the Court may grant less but not more than what is claimed. It follows that the Court below should have entered judgment in the sum of N926,583.60 claimed by the cross-appellants/respondents being part of the admitted debt of N4,082,617.00 in Exhibit W. It should not have struck out the counter-claim in the circumstances.
The cross-appeal on the counter-claim is accordingly allowed and the decision of the Court below striking out the counter-claim is hereby set aside and in its place judgment is entered for the cross-appellants/respondents in the sum of N926,583.60 against the cross-respondent/appellant in terms of the counter-claim. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment by my learned brother Joseph Shagbaor, JCA, in this appeal and completely agree that the appeal is lacking in merit and that the cross-appeal on the counter-claim is meritorious.
The appeal is dismissed by me too while the cross-appeal is allowed in terms of the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH JCA. I agree with the judgment and adopt it as mine with nothing useful to add.
Appearances:
Mr. V.C. Otti For Appellant(s)
Mr. E.O. Clegg For Respondent(s)
