ABDUL GAFARU YUSUF & COMPANY LTD v. KEBBI STATE GOVERNMENT
(2010)LCN/4000(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of July, 2010
CA/S/148/2000
RATIO
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS; EFFECT OF EVIDENCE TENDERED IN RESPECT OF UNPLEADED FACTS
Firstly, parties are bound by their pleadings and are never allowed to make a case outside what they pleaded. Evidence in respect of unpleaded facts being unavailing go to no issue and where wrongly received same must eventually be ignored by the court see P F Ltd v Lerents trading Co Ltd (1992) 5 NWLR (Pt 244) 675 at 696, Afanda v Ajani (1989) 3 NWLR (Pt 111) 511 and Ohiaeri v Akabeze (1992) 2 NWLR (Pt.221) 1 at 27 SC. PER MUSA DATTIJO MUHAMMAD, J.C.A.
PLEADINGS: EFFECT OF A MATERIAL AVERMENT IN A PARTY’S PLEADING NOT SPECIFICALLY DENIED BY AN ADVERSARY
Still on pleadings, any material averment in a party’s pleading if not specifically denied by an adversary is, in law, deemed admitted by that other party See Lawis & Peat (N.R.I.)) Ltd v. A.E. Akhimen (1976) ALL NLR 460 at 465. PER MUSA DATTIJO MUHAMMAD, J.C.A.
DUTY OF COURT: DUTY OF THE COURT WITH RESPECT TO A CONTRACT FREELY ENTERED INTO BY PARTIES
In further agreement with learned Appellant counsel, there is an obligation on the part of a law court to give effect to a contract freely entered into by parties and the very principle does not allow a court to vary the terms of such a contract from what the parties intended them to be. Thus the meaning a court places on a contract remains necessarily the one contained in the clear, plain and obvious terms of the particular contract See LSDPC v. NL & SP Ltd (1992) 5 NWLR (Pt 244) 653 SC and National Salt Co (Nig) Ltd v. Innis Palmer (1992) 1 NWLR (Pt 218) 422 CA; ACMR Builders Ltd v KSWB (1999) 2 NWLR (Pt 590) 288 SC and N11DB v. De Easy life Electronics (1999) 4 NWLR (Pt 597) 8. In Nika Fishing Co. Ltd v. Lavina Corporation (2005) 35 NSCQR 1 at 40-41, the Supreme court per Tobi JSC restated he principle thus: “Where there is a contract regulating any arrangement between two parties, the main duty of the court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the court can determine the terms of contract between parties thereto. The duty of the strictly interpret the terms of the agreement on its clear wordings…final it is not the function of a court of law either to make agreements for the parties or to change their agreement as made.” (Underlining mine for emphasis) See also Amizu v or Nzerjbe (1989) 4 NWLR (pt 118) 755 and Reinsurance Corporation v Faultaye (1986) 1 NWLR (pt.14) 115. PER MUSA DATTIJO MUHAMMAD, J.C.A.
PLEADINGS: WHETHER PLEADINGS CAN CONSTITUTE EVIDENCE AND BE RELIED UPON IN THE ABSENCE OF EVIDENCE
It is indeed trite as learned counsel for the Appellant/Cross Respondent submitted that pleadings do not constitute evidence and the Respondent in the instant case that preferred no evidence, either in challenge of the appellant’s case or in support of its pleadings is deemed to have accepted the facts in dispute as pleaded and proved by the Appellant inspite of the general traverse in the former’s pleadings. The lower court is right to have, in dismissing Respondent’s counter claim, relied on F.C.D.A v. Naibi (1990) 3 NWLR (Pt 138) 270 at 281 and IBWA Ltd v Imans (Nig) Ltd (2001) 5 NSCQR 777 at 798 in invoking these trite principles on pleadings vis-a-vis evidence at trials. PER MUSA DATTIJO MUHAMMAD, J.C.A.
UNCONTROVERTED EVIDENCE: WHETHER A LAW COURT HAS A DUTY TO ACCEPT AND ACT ON ANY EVIDENCE THAT HAS NEITHER BEEN DISCREDITED THROUGH CROSS EXAMINATION NOR CONTROVERTED BY INDEPENDENT EVIDENCE ADDUCED BY AN ADVERSARY
Lastly, a law court has no option than to accept as true and act on any evidence that has neither been discredited through cross examination nor controverted by independent evidence adduced by an adversary. See Judicial Service Committee v. Omo (1990) 6 NWLR (pt.157) 407 Eze v. state (1985) 3 NWLR (pt.13) 42g and Niger Construction Ltd. v. Okughen (1987) 4 NWLR (pt.67) 89. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
ABDUL GAFARU YUSUF & COMPANY LTD. – Appellant(s)
AND
KEBBI STATE GOVERNMENT – Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of the appeal and cross appeal against the judgment of the Kebbi state High Court delivered on 6th January granting in part Appellant’s claim and dismissing in whole Respondent’s counter claim in Suit No.KB/HC/11/2005. The facts of the case that brought about the two appeals are hereunder supplied.
By paragraph 21 of its amended statement of claim, the Appellant as Plaintiff claimed against the Respondent, the defendant at the court below, as follows:-
a. “The sum of N138,452,926.56 (One Hundred and Thirty Eight Million, Four Hundred and Fifty Two Thousand Nine Hundred and Twenty six Naira Fifty Three Kobo only) being the amount due from the defendant to the plaintiff as final account plus accrued interest as at 31st July, 2005 in respect of the contract for the rehabilitation of specialist Hospital, Birnin Kebbi made up as follows:
i. N95,075,468.61 (Ninety Five Million and Seventy Five Thousand Four Hundred and Sixty Eight Naira Sixty one kobo) only being the amount due to the plaintiff as final account as certified by the architect in charge of the said project vide Certificate No. 13 (Serial KB 223R)Final dated 19/6/2003.
ii. N43,373,457.92 (Forty-Three Hundred and Seventy three Thousand Four Hundred and Fifty Seven Naira Ninety Two Kobo) only being accrued cumulative interest due on the final certificate/amount aforesaid (calculated at Central Bank of Nigeria’s approved rate of interest for commercial borrowing for the year 2003, 2004 and 2005) beginning from 28/7/2003 up to 31st July, 2005.
b. Interest on the said sum of N138,452,926.53 (One Hundred and Thirty Eight Million, Four Hundred and Fifty Two thousand Nine Hundred and Twenty six Naira Fifty three Kobo) only at the current approved rate of interest by Central Bank of Nigeria which is 17% (and as may be varied by the said Bank from time to time) beginning from 1st August, 2005 until the final liquidation of the amount.”
The Respondent not only denied the foregoing claim but by paragraph 20 (d) of her amended statement of defence and counter claim prayed against the Appellant an award for the sum of N5,768,891.01 Kobo being overpayment made to the latter in respect of the contract entered into by the two on 9th February 1998.
Pleadings were ordered, exchanged and settled. The Appellant called three witnesses through whom several Exhibits, including Exhibits A, B, C, C1, D, E, F, F1, G, H, HI H2, J, K and L were tendered and admitted in proof of its case. The Respondent did not call any witness to prove her case but tendered Exhibits M1-M24 from the bar.
At the conclusion of trial including addresses of counsel, the lower court entered judgment in favour of the Appellant for the sum of N10,326,149.00 and interest on the awarded sum. Defendant/Respondent’s counter-claim was dismissed for lack of merit. Both parties have, by their notices dated 6th February, 2006 and 4th April 2006 respectively, appealed against the judgment of the court.
Parties have filed and exchanged their briefs of argument. At paragraph 3.00 of the Appellant’s brief, a lone issue has been formulated for the determination of the appeal, the issue reads:-
“Whether the learned trial judge was right when he held that the Appellant is only entitled to be paid the sum of N10,326,149.00k as against the sum of N95,079,469.61k certified by the Architect as contained in valuation certificate No. 13R (Exhibit F)”
The unnecessarily windy issue distilled by the Respondent at paragraph 30 of her brief reads:-
“Whether having regard to the Agreement (Exhibit A) between in appellant and the Respondent under which various payments have been made relating to the Rehabilitation of the Specialist Hospital Birnin Kebbi which was the proof to the issuance we of Exhibit F by PW2 (the Architect) the trial court was right in isolating clauses 42.1 and 51 of Exhibit A even though it was quite clear on record that payments previously made to the appellant were in excess of the initial contract price and the Respondent’s contention was that the initial price was never raised in
accordance with the condition of contract.”
The main appeal shall be determined on the basis of the issue formulated by the Appellant.
In arguing the appeal, learned Appellant counsel submits that it is not in dispute that Exhibit A is the contract between the parties. It is not permissible in interpreting the contract document, he argues, for the court below to add or subtract to or from the clear words of the agreement. As required by clause 51 of Exhibit A, the appellant has established that on completion of the contract it submitted a final account, Exhibit B, to PW1 for certification and eventual payment by the Respondent. PW1 issued Exhibit C, in the sum of N99,175,660.66, as money payable to the Appellant. Respondent raised a protest against Exhibit C in its letter, Exhibit D, to which Appellant responded by virtue of E. Resultantly, a meeting of all stakeholders resulted in PW1’s issuance of Exhibit F. Respondent’s persistent refusal to pay the sum certified in Exhibit F by PW1 informs Appellants’ action. Learned Appellant Counsel contends that the lower court’s finding that Appellant is only entitled to N10,326,149.00 as against what PW1, as empowered under clause 51 of Exhibit A, specified in Exhibit F, contradicts all laid down principles. The court’s failure to respect the sanctity of Exhibit A means that the court has made a contract different from the one the parties voluntarily entered into. The court, learned Appellant counsel submits, lacks the jurisdiction to so decide and such a decision must be set-aside. He relies on Afrotec Technical Service (Nig) Ltd v. MIA & SONS Ltd 200 8 LRCN 3459 at 3512, Sona Breweries Pic v Peters (2005) 1 NWLR (Pt 908) 478 and Zaklen Con(Nig) Ltd v. Nneji (2006) 26 NSCQR 314 at 336 – 337.
Further arguing the appeal, Learned Appellant Counsel submits that Respondent did not lead evidence on the basis of which the lower court reached its decision as to the sum Appellant is entitled to. Relying on Obasi v Merchant Bank (2005) 21 NSQR 278 at 295, he contends that the court’s decision arising from its examination of documents in chambers cannot endure. He urges the resolution of the lone issue as well as the appeal in Appellant’s favour.
Responding, learned Respondent’s Counsel concedes a great deal to the appellant. He agrees that Exhibit A is the contract voluntarily entered into by the two sides for an initial contract price of N207,119.400.83k; that vide Exhibits M10, and F as well as the testimony of RW1, Appellant was paid the sum of N215,306,982.76k. Learned respondent counsel further concedes that by virtue of Exhibit D, Respondent had protested the payment of Exhibit C earlier issued by PW1, following an earlier final account, Exhibit B, prepared by the Appellant. Learned counsel emphasized the necessity of resolving the dispute between the two in the con of Exhibit A. He relies particularly on Obasi v. Merchant Bank supra, Nika Fishing Co. Ltd. v. Larina Corporation (2008) 35 NSCQRR; Agbareh v. Mimza (2008) NSCQR 970 at 1009. Concluding, learned counsel insists that the lower court is right in extensively examining Exhibit F out of court once same has been admitted in evidence.
I am unable to agree! I shall explain at once.
The facts which constitute Appellant’s cause of action are as averred particularly in paragraphs 5, 8, 9, 10, 11, 12 13, 14, 15, 17 18, 19 and 21 of the company’s amended statement of claim. These facts inform Appellant’s plea for the lower court’s intervention in its favour against the Respondent.
Briefly, the Plaintiff/Appellant in the relevant paragraphs aver that parties have entered into a written a contract for the rehabilitation of the Birnin Kebbi Specialist Hospital at a cost of N207,119,400.08k. Sixty five percent of the contract price, and the contract is subject to variation as authorized and certified by the consultant, is to be paid in United States Dollars with the remaining 35% payable in naira. In paragraph 5 of the amended statement of claim it is specifically averred thus:-
“5. In the condition of contract the Architect is the person responsible for supervising the contractor, administering the contract, certifying the payment due to its contractor, issuing and valuing variations to the contract, awarding extensions of time and valuing compensation events. For this particular contract/Project the architects were Messrs Norman & Dawbarn of No. 13, Ahman Pategi Street, Kaduna and they are the eyes/agent of the employer i.e the defendant”
(Underlining mine for emphasis).
It is further averred by the Appellant that on completion of the contract and as provided for under clause 51 of the conditions of the contract, the Appellant submitted its final account to the architect on 14th of November 2002 for the sum of N 145,276,804.57 of which the architect certified N99,175,660.60k as payable. The Architect issued certificate No.13 (serial KB227) dated 23-12-2002 to and for onward transmission by the appellant to the Respondent for payment. Following Respondent’s protest pertaining certificate No. 13 as well as No. 12, a meeting was held between the architect and the parties to the contract leading to the withdrawal of certificate No. 13 and its replacement by the architect with certificate No. 13 R for the sum of N95,079,468. Annexed to the certificate is the quantity surveyor’s final statement of account. Respondent’s failure to pay the Appellant the amount certified by the Architect is a breach of the contract agreement which binds both sides which further entitles the Appellant to interest on the accrued sum. Appellant has claimed N35,942,260.95 in this regard.
To establish its case, the Appellant called three witnesses and at page 147 of the record of appeal the lower court found that:-
“PW2 also testified in line with the pleadings in the above quoted paragraphs and virtually repeated the evidence of PW1….therefore, in view of the pleadings in the quoted paragraphs and the evidence as per the testimony of PW1 and PW2 it appears that the learned state counsel submissions in his written address that Exhibits B, C, D, E have not been pleaded and no evidence was called to establish them were a misconception of the elementary rule of pleadings The exhibits in my view are in accord with the facts averred to in the Plaintiffs pleadings.”
What is equally beyond dispute is the fact that the evidence given by PW1, PW2 and PW3 remain unshaken in spite of the cross-examination they were subjected to. Again, no evidence was proffered by the Respondent either in opposition to Appellant’s claim or proof of its counter-claim beyond Exhibits Ml to M24 in respect of which the lower court found at page 156 of the record as follows:-
“The fact that the defendant tendered Exhibits M1-M24 which are bundles of documents without calling any witness to explain their purpose and contents was an erroneous procedure adopted by counsel. It is not the duty of the court to do cloistered justice by making an inquiry into the case outside the court even if such inquiry is limited to examination of documents which were in evidence but had not been explained in court.”
(Underlining mine for emphasis)
The lower court at pages 154-155 again found, and rightly too, that the Respondent is liable to pay interest on any sum it owes the Appellant and has remained unpaid. The lower court explained its finding firstly, see pages 155 of the record, thus:-
“By virtue of the above quoted clause, it is clear that parties agreed to the payment of interest in cases of delayed payments. The Plaintiff also calculated the rate of interest for commercial borrowing as approved by the Central Bank of Nigeria for the years 2003, 2004, and 2005 as 21 & 19% and 17% respectively as per the testimony of PW2, PW3 and Exhibit L. The averment as averred to by the Plaintiff with respect to interest was not denied by the defendant”
And then:
“The evidence as adduced by the plaintiff as it affects the payment of interest in a situation of delayed payment was also unchallenged. The defendant did not call any witness in challenge of the evidence neither was the evidence adduced by the Plaintiff successfully challenged during cross – examination. The bundle of documents tendered by counsel to the defendant from the bar by consent cannot cure that defect.”
The foregoing finding of the lower court is unassailable having proceeded on correct principles. The same principles should have informed the court’s decision in respect of Appellants claim. It is intriguing, to say the least, that this is not the case. Inspite of the fact that clause 51 of exhibit A, the contract between the two sides, has empowered PW1 to issue Exhibit F, the certificate of the final payment due to the Appellant that is being claimed, the lower court concluded that the claim is unmerited. It does not also seem to bother the court that the testimonies of PW1, PW2 and PW3 in proof of Appellant’s claim have neither been discredited through cross-examination nor contracted by evidence called by the Respondent. Having on its own and in the inner recesses of its chambers scrutinized Exhibit F, the court, see page 152 of the record of appeal, denied Appellant’s undisputed claim since in its view:
“…the Architect was wrong in certifying the claim for payment as per the attachments in Exhibit F as presented by the Plaintiff. Such consideration was not based on evidence contemplated by the Agreement.”
And that:
“the plaintiff is only entitled to be paid the sum of N10,326,149.00 for the additional works executed in the course of the contract on the instructions of the Architect and the Architect should have based his certificate as in Exhibit F only to the extent of that claim.”
Learned Appellant counsel is right in his submission that the foregoing findings of the lower court is perverse for all the reasons he gave and more.
Firstly, parties are bound by their pleadings and are never allowed to make a case outside what they pleaded. Evidence in respect of unpleaded facts being unavailing go to no issue and where wrongly received same must eventually be ignored by the court see P F Ltd v Lerents trading Co Ltd (1992) 5 NWLR (Pt 244) 675 at 696, Afanda v Ajani (1989) 3 NWLR (Pt 111) 511 and Ohiaeri v Akabeze (1992) 2 NWLR (Pt.221) 1 at 27 SC.
Still on pleadings, any material averment in a party’s pleading if not specifically denied by an adversary is, in law, deemed admitted by that other party See Lawis & Peat (N.R.I.)) Ltd v. A.E. Akhimen (1976) ALL NLR 460 at 465.
In further agreement with learned Appellant counsel, there is an obligation on the part of a law court to give effect to a contract freely entered into by parties and the very principle does not allow a court to vary the terms of such a contract from what the parties intended them to be. Thus the meaning a court places on a contract remains necessarily the one contained in the clear, plain and obvious terms of the particular contract See LSDPC v. NL & SP Ltd (1992) 5 NWLR (Pt 244) 653 SC and National Salt Co (Nig) Ltd v. Innis Palmer (1992) 1 NWLR (Pt 218) 422 CA; ACMR Builders Ltd v KSWB (1999) 2 NWLR (Pt 590) 288 SC and NIDB v. De Easy life Electronics (1999) 4 NWLR (Pt 597) 8. In Nika Fishing Co. Ltd v. Lavina Corporation (2005) 35 NSCQR 1 at 40-41, the Supreme court per Tobi JSC restated he principle thus:
“Where there is a contract regulating any arrangement between two parties, the main duty of the court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the court can determine the terms of contract between parties thereto. The duty of the strictly interpret the terms of the agreement on its clear wordings…final it is not the function of a court of law either to make agreements for the parties or to change their agreement as made.”
(Underlining mine for emphasis)
See also Amizu v or Nzerjbe (1989) 4 NWLR (pt 118) 755 and Reinsurance Corporation v Faultaye (1986) 1 NWLR (pt.14) 115.
Lastly, a law court has no option than to accept as true and act on any evidence that has neither been discredited through cross examination nor controverted by independent evidence adduced by an adversary. See Judicial Service Committee v. Omo (1990) 6 NWLR (pt.157) 407 Eze v. state (1985) 3 NWLR (pt.13) 42g and Niger Construction Ltd. v. Okughen (1987) 4 NWLR (pt.67) 89.
In keeping with the averment in paragraph 5 of Appellants amended statement of claim, PW1 told the lower court that he is the Architect envisaged in the contract and this has not, like the other paragraphs in the amended statement of claim, been denied by the Respondent.
Appellant has at first submitted a final account, exhibit B to PW1 on the basis of which PW1 issued exhibit C, an earlier certificate No. 13. Respondent’s queries led to a meeting of the parties to the contract as well as PW1’s replacement of the first certificate, Exhibit C, with Exhibit F. PW1 told the lower court that the Respondent had neither raised any objection against Exhibit F nor paid the Appellant the sum due by it. PW1 also stated that he had complied with A in his issuance of Exhibit F. Clause 51 of Exhibit A particularly provides as follows:-
“51. The contractor is to supply to the Architect a detailed account of the total amount which he considers is payable to him under the contract before the end of detects Notice period. The Architect is to certify any final payment which is due to the contractor within 60 days of receiving the contractor’s account if it is correct and comply. If it is not, the Architect is to issue a schedule which states the scope of the corrections or additions which are necessary. If the final account in grill unsatisfactory after it has been resubmitted the Architect is to decide on the amount payable to the contractor.”
(Underlining mine for emphasis)
Documents such as Exhibit A are not interpreted any differently from statutes. The intention of the parties to Exhibit A of which the foregoing clause is a part, like that of the law makers, is decipherable from the clear and unambiguous words that the up the various clauses in the contract document. See Olowosajo v. Adebayo (1988) 4 NWLR (Pt 88) 275 SC; Tukur v. Gongola state (1989) 4 NWLR (Pt 117) 517 SC, Orubu v. NEC (1988) 5 NWLR (Pt 93) 323 SC and Ojokolobo v. Alamu (1987) 3 NWLR) 377 SC. In the instant case, with pw1’s testimony that Exhibit F was issued in the manner required under clause 51 of Exhibit A, Appellant has discharged the primary burden of proof the law placed on him and it became the Respondent’s burden to discredit the evidence either through cross-examination or independent evidence proffered on the basis of the issues settled in parties pleadings. Neither step was taken by the Respondent. The lower court’s denial of Appellant’s claim emanated from the wrong procedure it resorted to in the face of the evidence before it. The court itself, at page 148 of the record, has made an infallible inference thus:-
“It is evident that Plaintiff at the completion of the contract submitted a detailed account to the architect as a result of which the Architect issued a valuation certificate No 13R (Exhibit F) in the sum of 95,079,468.61 an amount considered payable to the contractor. In this respect there is no doubt that PW1 issued Exhibit F in accordance with the provisions of clause 51.”
The court, it should be further noted has earlier at page 142 of the record of Appeal held as follows:-
“Therefore from the above, it appears to me very clearly that the parties did not intend to limit the contract price only to the price stated in he letter of acceptance of the employee which was 207,119,400.83 and I so hold.”
No appeal has been lodged against these two findings. They accordingly subsist see Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt 74) 75 SC and Aladegbemi, v. Fasanmade (1988) 3 NWLR (Pt 81) 129 Sc. PW1 had told the lower court that Exhibit A had empowered him to authorize variation of the contract to which the Exhibit relates and which initial cost the witness put at N207,119,400.00k. Since PW1 had stood his grounds under cross-examination and the Respondent had failed to plead and proffer any evidence contrary to what PW1 and other witness who gave evidence on behalf of the Appellant testified, the law required that the court acted on such evidence as being true and to find for the Appellant. The court did not. Instead, it proceeded on its own and without input from the parties before it “to take a close perusal of Exhibit F and the supporting documents thereto” leading to its eventual decision of finding for the Appellant the sum it did rather than the N95,079,468.61 the Appellant through PW1, PW2 and PW3 proved it was owed by the Respondent. Appellant has also proved and the court has found it entitled to the interest on such sum that it established.
Learned Appellant counsel is completely right in his submission that the lower court’s decision regarding what the Appellant claimed and proved is, on the authorities, perverse. By clause 51 Exhibit A PW1 is empowered to authorize any variation to the contract sum and he testified to the fact that Exhibit F had taken into consideration such variations as he authorized. Respondent neither challenged not controverted these facts. Given the evidence before it, the lower court had no option other than finding for the Appellant in terms. The court’s resolve to closely peruse exhibit F and its attachments and without giving the parties before it the opportunity to contest the process of reaching the eventual decision is manifestly wrong. The same court has at pages 142 and 156 of the record explained its refusal to peruse Exhibits that had been similarly dumped on it by the Respondent in the absence of any oral evidence explaining these documents thus:
“It is therefore not the duty of the court to examine the document to sort out the case of the defendant. In Obasi brothers Co Ltd. v. Merchant Bank of Africa securities (supra) at P.285 para E. – F. The Supreme Court as per Kalgo, JSC held:-
“It is well settled that a Judge cannot sit down out of court on his own and examine documents to sort out the case of a party. It is the duty of the party itself to elicit. Such evidence in court through its witness especially as in this case where various documents are involved.”
In Onibudo v. Akibu & Ors (1982) 7 SC 60 at 63 cited before and purportedly invoked by the lower court, the Supreme Court per Bello JSC (as he then was) more poignantly warned thus:-
“It needs to be emphasized that the duty of a court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in court. It is not the duty of a court to do cloistered justice by making an inquiry into the case outside court even if such inquiry is limited to examination of documents which were in evidence, when the documents had not been examined in court and their examination out of court disclosed matters that had not been brought out and exposed to test in court and were not such matters that, at least, must have been noticed in court”.
The lone issue, with the shortcomings identified in the lower court’s judgment, must be resolved in favour of the Appellant. The Appeal which has succeeded is accordingly hereby allowed. Having established its claim, Appellant’s claim is hereby granted in terms.
There is, remember, a cross-appeal lodged by the Respondent. It challenges the lower court’s decision in respect of Respondent’s counter-claim adjudged unmeritorious and dismissed. The Respondent had counter-claimed and tendered from the bar exhibits M1-M24 to prove the counter-claim. No witness was called to demonstrate how, in the face of the evidence proffered by the Appellant, these Exhibits establish Respondent’s pleadings.
In allowing the main Appeal, we drew particularly from Onibudo v. Akibu supra and concluded that it is perverse for the lower court to have relied on its own scrutiny of documentary exhibits and without giving the parties before it the opportunity to contest the procedure, to find against the Appellant. Implicit in this decision is an endorsement of the lower court’s decision regarding Respondent’s counter claim that was held not established on the basis of Exhibits M1-M24 dumped on the court without any oral testimony to explain their essence.
The lower court was asked to decide whether Appellant had been paid what by Exhibit A Appellant was entitled to and/or whether it was overpaid to the extent of what the Respondent counter-claimed. At the end of the case, the Respondent only had their pleadings going for them.
It is indeed trite as learned counsel for the Appellant/Cross Respondent submitted that pleadings do not constitute evidence and the Respondent in the instant case that preferred no evidence, either in challenge of the appellant’s case or in support of its pleadings is deemed to have accepted the facts in dispute as pleaded and proved by the Appellant inspite of the general traverse in the former’s pleadings. The lower court is right to have, in dismissing Respondent’s counter claim, relied on F.CDA v. Naibi (1990) 3 NWLR (Pt 138) 270 at 281 and IBWA Ltd v Imans (Nig) Ltd (2001) 5 NSCQR 777 at 798 in invoking these trite principles on pleadings vis-a-vis evidence at trials. The decision not being perverse must accordingly prevail. The complaint of the Respondent in the cross-appeal therefore fails and same is hereby dismissed.
The Appellant/Cross Respondent is entitled to a cumulative costs of the two appeals put at N50,000.00 naira against the Respondent.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, in draft, the judgment just delivered by my learned brother M.D. Muhammad JCA. I agree with his reasons which I adopt as mine for allowing the main appeal and dismissing the cross-appeal. I also abide by the consequential orders contained in the lead judgment, including the order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Musa Dattijo Muhammad, JCA and I agree with his reasoning for allowing the main appeal and dismissing the cross-appeal. My learned brother, Muhammad, JCA has commendably admirably, thoroughly and adequately treated the issue raised for the determination of this appeal. Hence, I do not consider it necessary or apposite to expatiate thereon. In essence and conclusion, I also allow the main appeal and dismiss the cross-appeal. I also abide by the consequential orders inclusive of that of costs, made in the said lead judgment of my learned brother, Muhammad, JCA.
Appearances
O. B. James Esq.,For Appellant
AND
M. J. Pama Esq.,For Respondent
