ABUBAKAR MAI-KIRI v. ALH. ABDULKADIR YAHAYA
(2018)LCN/12333(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/S/93/2017
RATIO
CONTRACT: PRIVITY OF CONTRACT
“The real purport of the doctrine was succinctly stated by the Court in the following words; “the import of the doctrine of privity of contract is that a contract or an agreement cannot bind a person who is not a party to it nor can such person take or accept liabilities under the contract or agreement nor benefit there under. In other words, only parties to a contract can enforce it. A person who is not a party to a contract or an agreement cannot sue on same even if the contract or agreement was made for his benefit.” This is why the Court went further to say: A plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of contract as he will simply not have a locus standi to sue the defendant on the contract.” PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: WHERE TWO EVIDENCE CONTRADICTS
“Two pieces of evidence are said to be contradictory when they touch on the essentiality of a thing being or not being or when one states or affirms the opposite of what the other denies on material point and not just on mere details. EGWUMI V STATE (2013) 13 NWLR (Pt. 1372) 525, ZAKIRAI V MUHAMMAD (2017) LPELR 4234 (SC). Where one piece of evidence says a certain human being is a male, and the other states that the human is a female, a clear case of contradiction exists. But where the contradiction relates only to the description of the features of the human being, except where such is a fact in issue, there is only a discrepancy in the evidence which does not touch on the essentiality of the existence and gender of that human being. In OSUOHA VÂ THE STATE (2011) 16 NWLR (Pt 129) 364) 391, C – D. The Supreme Court held thus: “Contradiction between two pieces of evidence goes to the essentiality of something being or not being at the same time, whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details.” PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
“…it is the primary duty of the trial Court to evaluate evidence, make findings of facts and apportion probative value thereto. That function, I must emphasize, is not of an appellate Court as it does not share with the trial Court, the advantage of seeing or hearing the witnesses testify. An appellate Court which only deals with the cold evidence on records, can only step in to evaluate evidence where the trial Court failed in taking the advantage it had to discharge its primary duty or where it makes wrong inferences from the evidence; or when the findings are not supported by evidence. To avert miscarriage of justice, the appellate Court would step into the shoes of the trial Court to right the wrong. See Imah VS OKOGBE (1993) 9 NWLR (Pt. 316) 159; Amaremor VS. The State (2014) 10 NWLR (Pt. 1414) 1; Cyclops VS Ibaranyaye (2012) 9 NWLR (1305) 233.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ABUBAKAR MAI-KIRI Appellant(s)
AND
ALH. ABDULKADIR YAHAYA Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal before us which arose from the decision of Hon. Justice M. U. Dogon Daji of the Sokoto State High Court delivered on 22/2/2017, is in respect of a business transaction between the respondent and the appellant. The respondent is a business man who deals in all types of women wrappers, at shop No.4, Gidan Dankure, Old market Area, Sokoto, and has been doing so for over 30 years. The appellant is also a business man who buys super print (mai roba) and wax wrappers from the respondent. The dispute is over the payment of outstanding balance of the sum of N3, 345, 200.00 from the total sum of N8.2 million being the cost of the 100 dealers of women wrappers appellant collected from the respondent.
The respondent’s case is that he sold 100 dealers of super prints, each dealer containing 200 pieces of wrappers at the total cost of N8, 200. 000.00 on credit to the appellant. The appellant made several installment payments the last being the sum of N80, 000 on the 16/2/2011 leaving an outstanding balance of N3, 345, 200.00 unpaid despite several demands and his undertaking to do so.
On the other hand, the appellant’s case is that he did not buy the goods from the respondent on credit but that he was used by the respondent as a front to distribute goods to the respondent?s accredited and known customers which goods he sold to the respondent’s customers on credit basis. That all the monies returned to the respondent were not his indebtedness to the respondent as he is not so indebted, but were monies he assisted in recovering from the respondent’s debtors.
The matter went to trial with the respondent calling 3 witnesses and tendering several exhibits and the appellant, also calling one witness in addition to testifying as DW2 while tendering exhibit D. In his considered judgment, the learned trial judge concluded as follows:
“From the evidence so far led by both parties, in this case regard being had to the testimonies of PW1, PW.2 and PW3 and DW1 and DW2 and exhibits A, A1, B to B13 and C to C13, the plaintiff has proved his claim by preponderance of evidence and balance of probabilities and is therefore entitled to the judgment of this Honourable Court as par his claim in the writ of summons and statement of claim which is the sum of N3, 345, 200.00 being special damages and the sum of N50, 000.00 as the cost of this action.”
Consequently, judgment was entered for the respondent in terms of his claim at paragraph 24 of the statement of claim. It is this decision which angered the Appellant that gave rise to this appeal, the notice of which was filed on the 13/3/2017 but was by leave of this Court, amended on the 27/11/2017 predicated upon 5 grounds from which the Learned Ibrahim Abdallahi Esq (FRHD) who settled the appellant?s brief of argument filed on the 6/4/18 but deemed on 16/5/18, identified 3 issues for determination, to wit:
(i) Was the Court below correct in law in placing reliance on the contradictory evidence of PW’s 1, 2 & 3 and using same evidence to found in favour of the Respondent? (This is decoded from ground 5 of the amended grounds of Appeal).
(ii) Did the Court below properly evaluate the evidence adduced before entering judgment in favour of the Respondent? (This is decoded from ground 3 of the amended grounds of Appeal).
(iii) Was the decision of the Court below in granting all the reliefs of the Respondent correct in law? (This is decoded from grounds 1, 2 & 4 of the amended grounds of Appeal).
These issues were adopted by the learned respondent’s counsel, A. Y. ABUBAKAR ESQ in the respondent?s brief of argument filed on the 6/6/2018.
A look at the 3 issues formulated for determination reveals that they bother essentially on complaint of improper evaluation of evidence vis–vis the decision of the Court below in granting the Respondent’s reliefs. In this wise, I shall determine this appeal on a sole issue culled from the Appellant’s 3 issues as formulated infra, to wit:
WHETHER ON THE EVIDENCE BEFORE THE COURT, THE LEARNED TRIAL JUDGE WAS RIGHT IN ENTERING JUDGMENT FOR THE RESPONDENT IN TERMS OF HIS CLAIMS.
It was submitted, on the Appellant’s first issue, that the onus of pleading relevant facts for special damages and strictly proving same is on the Respondent but PW2 & PW3 did not only say that they do not know the arrangement between the Respondent and the Appellant, but also their evidence (PW1, 2, & 3) is ridden with unexplained material contradictions as to the exact month in which the Respondent purportedly sold the goods on credit to the Appellant, whether it was between March and April as stated by PW1, or in May 2010 as testified to by PW2, or merely in the year 2010 as stated by PW3; which contradiction renders the determination of whether the goods were actually given to the Appellant on credit or not unascertainable but merely speculative. For such material and unexplained contradictions, their evidence he argued, is not entitled to any honour and ought to be rejected as held in the cases of MONOPRIX (NIG) LTD V OKENWA (1995) 3 NWLR (Pt 383) 325, 341 and IGE V AKOJU (1994) 4 NWLR (Pt. 340) 535, 546 para H but the learned trial judge in opening the gate of speculation which is not part of his duty, fathomed an explanation that the contradictions were only minor.
The cases of OKEJI V OLOKOBA (2000) 4 NWLR (Pt 654) 513, 530, and IGABELE V STATE (2006) 5 (LRCNC) 30 at 44 were cited. Stretching this argument further into his issues 2 & 3 and buttressing his position that the learned trial judge did not properly evaluate and assess the evidence before arriving at the outstanding balance, it was submitted that the learned trial judge, without formulating or adopting any issue for determination as a guide to the resolution of the dispute, merely restated the evidence of the witnesses without evaluating same and adverting his mind to the unexplained inconsistent evidence of PW3 on the computation of the outstanding balance which does not tally with the judgment entered and shows escalating figures; even after the acknowledged several payments made by the Appellant and without evidence of any further supply of goods to the Appellant.
This, he argued, is absurd. Learned counsel referred to the evidence of PW3 at pages 39 & 40 of the record and catalogued the contradictions in the figures. He also faulted the placing of reliance on exhibits A & A1 at the expense of Exhibit D, in holding that the Appellant signed an undertaking to pay the balance without considering the Appellant’s denial of the signature thereon and evaluating Exhibit D admitted without objection, or comparing the signature thereon with the signatures on exhibits A & A1 as he is empowered to do by Section 101 (1) of the Evidence Act or even by making any remark on exhibit D as he is enjoined to do. The case of TANGALE TRADITIONAL COUNCIL V FAWU (2001) 17 NWLR (Pt 742) 293, 330 Per Mukhtar, JCA was cited to buttress his point.
For the failure to evaluate the evidence of DW1 & DW2 and ignoring the evidence elicitated in cross ? examination, the decision of the Court below was ascribed the toga of being perverse and an invitation for interference by this Court urging us to hold that a miscarriage of justice has been occasioned. He called in aid the case of EZE V A. G. RIVERS STATE (2002) FWLR (Pt 89) 109, 117.
On the other hand, it was further submitted, the Appellant’s case as pleaded and supported by the Appellant as DW2 and corroborated by DW1 is that the goods the price of which were fixed by the Respondent, were not given to the Appellant on credit but as a front for the Respondent to distribute the goods to the Respondent’s known and accredited customers, which fact by the Respondent’s admission in cross – examination that he collected monies from two customers, is a tacit agreement that the Appellant only distributed the goods to the Respondent’s known customers with whom the Respondent personally dealt in collecting the money, thereby rendering Exhibits A & A1, B – B13 & C – C13 consistently denied by the Appellant, as worthless and the unchallenged exhibit D, believable; citing the case of OMO V JUDICIAL SERVICE COMMITTEE OF DELTA STATE (2000) 7 SC (Pt 11) and P.H.M.B V EDOSA (2001) 2 NRN 183. This, he argued, warrants the dismissal of the Respondent’s case if the Court finds that there is little or nothing to choose between the evidence of the parties as held in the case of ENIGWE V AKAIGWE (1992) 2 NWLR (Pt 225) 505, 523.
Responding to the foregoing, the learned Respondent’s counsel submitted that the inconsistency between the evidence of PW1 & PW2 regarding the date the goods were given to the Appellant which is a mere discrepancy expected between testimonies of different witnesses, as held in EMIATOR V STATE (1975) 9 – 11 SC 107, OSUOHA V THE STATE (2011) 16 NWLR (Pt 1219) 364, 391 C – D, does not affect the substance of the Respondents case that he gave goods worth ‘8, 200, 000.00 to the Appellant on credit as to warrant discrediting the Respondent’s witnesses in that only material contradictions resulting in miscarriage of justice would warrant the rejection of the party’s evidence’ as held in WACHUKWU V OWUNWANNE (2011) 14 NWLR (Pt 1266) 1, at 27 E – H. He contended that the evidence of PW1 & PW2 are mutually consistent that the transaction took place; the Appellant collected the goods on credit, and even made some payments as evidenced by exhibits A – A1, B – B13, C – C13 leaving a balance of N3, 345.00 which payments, he did not deny except his signature on exhibits A & A1.
Moreover, the Appellant did not throughout his defence deny collecting the Respondent’s goods but only contends that he did not to do so on credit but as a front for distribution to customers. That fact having being admitted, learned counsel argued, needs no further proof as provided by Section 123 of the Evidence Act and decided in the case of ASUEN & Anor. V OMOREGIE (2012) LPELR 7916.
In addition, it was submitted that assuming a material contradiction exists in the Respondent’s case the Appellant’s admission in cross – examination that:
“There is about N3, 330, 000.00 remaining and unpaid from the customers I distributed goods to. The said money is value of the goods I personally collected from the plaintiff and distributed to the customers.”
which is an admission against interest, has negatived the inconsistency and lightened the burden for the success of the Respondent’s case, as admission is the best evidence in our evidential jurisprudence – citing in support the case ofTAIWO V ADEGBORO (2011) ALL FWLR (Pt 584) 52, 67.
On the complaint of lack of proper evaluation of evidence, it was submitted that the criteria to determine whether the trial Court has discharged its duty is as stated by this Court in the case of AREGBESOLA V. OYINLOLA (2011) 9 NWLR (pt 1253) 458 at 580.
He submitted that the Court below observed the procedure by appraising the evidence, giving each piece of evidence its appropriate probative value and supporting his judgment with reasoning in line with the laid down procedure as evidenced at pp. 108-113 of the record.
He also referred to the same case on the procedure a Court adopts in determining how one set of evidence is preferred to the other which he argued the Court below adopted by dispassionately appraising the evidence vis-a-vis the issues and attaching the appropriate weight to each piece of evidence before arriving at his decision on each of these issues, insisting that the judgment is not a mere restatement of evidence as argued by the Appellant.
On the heavy weather made that the lower Court did not properly evaluate the veracity of the appellant’s claim vis-a-vis the contents of exhibits B-B13 and C-C13 before arriving at the conclusion that the goods were sold on credit basis, our attention was drawn to the Appellant’s evidence elicited during cross examination at page 51 lines 17 -20 of the record admitting the Respondent’s contention, which evidence, it was submitted, the Court is bound to assess in favour of the respondent as held in the case of IRONBAR V. FEDERAL MORTGAGE FINANCE (2009) 15 NWLR (Pt 1165) 506 at 543 – 535 H & B, contending further that the trial judge was also right in relying on the exhibits over and above exhibit D notwithstanding the appellant’s denial of the signature thereon since the appellant did not deny issuing them and evidence was led showing that the exhibits emanated from him.
Similarly, it was submitted that the Court was also right in not ascribing any probative value to the evidence of DW1 who did not witness the transaction, his evidence being hearsay evidence which does not contain any modicum of truth urging us also, to disregard same.
Referring to and quoting parts of the evidence of the respondent’s 3 witnesses, it was submitted that their evidence support the respondent’s case that the respondent gave 100 dealers of super wax worth N8, 033, 000.00 to the Appellant on credit and after making some payments, Appellant refused to pay the remaining balance of N3, 345, 000.00; that in exhibits A &A1 tendered by the respondent, the appellant admitted indebtedness and exhibits B1 – B13, C – C13 chronicled the payments made by the appellant to offset the debt which payment appellant did not deny making but only denied his signature though in law, a document is admitted as a whole and is the best evidence of its contents, citing in support the case of EMEJE V POSITIVE (2010)1 NWLR (PT.1174) 48 at 56.
It was further submitted that the trial Court’s preference of the Respondent’s evidence to that of the appellant does not mean that it did not discharge its duty of evaluating the evidence presented by both parties as decided in the case of NGADI V. FRN(2018) LPELR-43636 per Lawal Garba, JCA since evaluation and findings of Court do not have to cover numerous pages or a substantial portion of the judgment in as much as it is properly done and carried out as required by law as held in the cases of AREGBESOLA V. OYINLOLA (Supra), ISIKWENU V. IROH (2013) 11 NWLR (PT. 1365) 256 AT P. 286 PARA G-H.)
On the other hand it was submitted that while the appellant claimed he was only a front to the respondent for onward distribution of the goods to the “known customers”, he failed to supply the missing link on who those “known customers” are, at what point in time did the Appellant enter into any agreement with the “known customers” to be collecting goods from the Appellant, on whose behalf they were collecting the goods from the Appellant, and on whose authority the Appellant gave them the goods, contending that the evidence of PW3 in cross examination that the Appellant introduced two of the customers and they collected money from them, would not aid the appellant as such elicited evidence which is not pleaded goes to no issue citing in support the case of AKOMOLAFE V. GUARDIAN PRESS LTD. (PRINTERS) (2010) ALL FWLR (PT. 517) AT 784 Per ONNOGHEN JSC (as then was).
It was thus submitted that the case being civil in nature and the respondent having successfully discharged the burden placed on him, it was for the appellant to show that he only acted as a front/distributor for the respondent but he failed to do so.
Finally, it was submitted that assuming the appellant’s contention is conceded that he only collected the goods from the Respondent as distributor/or front for onward distribution to other customers, that would still not absolve him from liability to pay the Respondent his money as it is the appellant and not the respondent, by the doctrine of privity of contract who can go after the customers to collect the money, reliance was heavily placed on the judgment of this Court delivered in December, 2016 in appeal no. CA/S/14/2016 NASIRU IBRAHIM V. ABDULKADIR YAHAYA (2016) LPELR- 41810 per F. O. OHO, JCA a case which learned counsel submitted is on all fours with the instant case. He also cited and the case of REBOLD INDUSTRY LTD V MAGREOLA (2015) 8 NWLR (PT1461) 210 at 213, in urging us to resolve the issue in favour of the respondent against the appellant.
In the Appellant’s reply brief filed on the 21/6/2018, it was submitted that the appellant’s evidence referred to as an admission of the respondent’s claim, should not be taken in isolation as constituting an admission of the respondent’s claim which the appellant denied, because an admission is a question of fact to be determined from the totality of the pleadings as a whole and not in isolation and must be unequivocal. That from the pleadings and the evidence, there was no unequivocal admission of the respondent’s case as the appellant did not admit personal liability to the respondent. He cited the case of TITILOYE & ORS. V. OLUPO & ORS. (1991) LPELR- 3250 (SC), KAWU, J.S.C. at P. 19, Paras. B – D and the more recent decision of the Supreme Court in the case of KWARA HOTELS LTD. V. ISHOLA (2002) 9 NWLR (PT 773) PG. 604 @ 622 PARA. C, where Onnoghen, J.S.C. as he then was stated the position of the law thus:
“It is trite law that admission in the pleading can be arrived at after considering the whole pleadings of the parties and not just on isolated paragraph thereof – see Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519; Anason Farms Ltd v. NAL Merchant Balik (1994) 3 NWLR (Pt.331) 241”.
On the respondent’s contention that the appellant failed to plead the names of the persons the goods were given to, it was submitted that pleading the names of the customers would amount to pleading evidence which is not allowed under the rules of pleadings. The names of the customers, he argued, is the evidence to be adduced in proof of the pleadings. Moreover, he continued, the pleadings of the appellant at the Court below needs not be an essay so as to contain every minute details of what the appellant would say vides his parole evidence, as decided in the case ofAKEJU & ORS v. KAYODE (2014) LPELR- 22095(CA), DENTON WEST, JCA at Pp. 18-19, Paras. G- B urging us to resolve the issue in favour of the appellant.
A condensation of the Respondent’s case at the lower Court is that the Appellant collected 100 belts of wax (women wrappers) from the Respondent on credit basis worth N8.2M out of which the Appellant made some installmental payments leaving a balance of N3, 345, 200 still unpaid despite the Appellant’s undertaking to do so. On the other hand, the Appellant’s case is that he never bought the goods on credit basis from the Respondent but was used by the Respondent as a front to distribute the goods to the Respondent’s well known accredited customers from whom he assisted the Respondent in collecting and giving the money to the Respondent. That it is the customers and not him, who are indebted to the Respondent for the outstanding balance.
On the outset, it is apt to identify the issue in dispute in this appeal. What sticks out from a cursory look at the pleadings, is that parties are ad idem that the Appellant collected 100 belts of women wrappers from the Respondent through PW3 worth N8, 200, 000.00 out of which some payments have been made to the Respondent. These are admitted facts. Parties are on common grounds on these facts. It is now a settled position of law with statutory backing and a legion of decided authorities that what is admitted needs no further proof. By Section 123 of the Evidence Act, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
By these provisions, generally in civil proceedings, unless a Court deems it fit as provided for in the proviso to call for further evidence, what is admitted requires no further proof other than by such admission, as an admitted fact in pleadings requires no further proof in civil proceedings.
There are too many decided cases on this principle. See Akinlagun v. Oshoboja (2006) LPELR 348 @ p. 33; (2006) 12 NWLR (PT 993) 60; (2006) 5 S.C. (PT11) 100] the Supreme Court per Ogbuagu J.S.C. Alhaji Ndayako v. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152 @ 172, (2004) 13 NWLR (PT 889) 189. DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392 at 405.
Where issues are not joined, proof is not required. This was the trite position of law that was restated in the case of AKIBU v. ODUNTAN (1992) 2 NWLR (222) 210 at 226-7
“thus:- Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not joined issues which make proof unnecessary.”
In the light of this, no further proof is required on the part of the respondent to show that the Appellant collected 100 dealers of super wax print (women wrappers) from the respondent and that some payment had been made.
What is in contention and is the soul of this appeal is the status in which the Appellant collected the 100 dealers (belts) of the super print wax and the actual outstanding balance due remaining unpaid and by who. Both parties adduced evidence in support of their discondant positions at the lower Court. Both cannot all be right. One has to be right and the other wrong. The trial Court after evaluating the evidence before the Court found that the Respondent was right and the Appellant wrong. That finding and conclusion of the lower Court in favour of the Respondent forms the basis of the Appellants main complaint against the decision and is the centre piece of the appellant’s argument in support of the appeal. Put differently, the Appellant’s main complaint is that on a proper evaluation of all evidence before the lower Court, judgment ought not to have been entered for the Respondent against the Appellant.
The settled position of law which remains trite is that the evaluation of evidence and the ascription of value to such evidence have remained the primary function of the trial Court which saw, heard and assessed the witnesses as they testified at the trial in the witness box and observed their demeanour. SeeOkoye & Anr VS Obiaso & Or (2010) 8 NWLR (Pt. 1195) 145; Lasisi VS The State (2013) 9 NWLR (Pt. 1358) 74; Osolu VS Osolu (2003) 1 NWLR (Pt. 832) 608. As elucidated in Yadis Ltd VS GNIC Ltd (2007) 30 1 NSCOR 495 at 518 – 519 Per Onnoghen JSC (as he then was), it is the primary duty of the trial Court to evaluate evidence, make findings of facts and apportion probative value thereto. That function, I must emphasize, is not of an appellate Court as it does not share with the trial Court, the advantage of seeing or hearing the witnesses testify.
An appellate Court which only deals with the cold evidence on records, can only step in to evaluate evidence where the trial Court failed in taking the advantage it had to discharge its primary duty or where it makes wrong inferences from the evidence; or when the findings are not supported by evidence. To avert miscarriage of justice, the appellate Court would step into the shoes of the trial Court to right the wrong. See Imah VS OKOGBE (1993) 9 NWLR (Pt. 316) 159; Amaremor VS. The State (2014) 10 NWLR (Pt. 1414) 1; Cyclops VS Ibaranyaye (2012) 9 NWLR (1305) 233.
But where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts before it and there is sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court is loath to interfere even if it concludes that the trial Court should have evaluated the evidence of witnesses differently. See Nguma VS A.G. Imo State (2014) 7 NWLR (Pt. 1405) 119; Gbileve vs. Addingi (2014) 16 NWLR (1433) 394; Chukwu VS Akpelu (2014) 13v NWLR (1424) 359.
On the disputed fact that the Appellant bought the goods on credit from the Respondent and did not collect the goods as Respondent’s front to distribute to the Respondent’s known customers, the Respondent’s evidence in support of the fact was rendered by PW1, PW2 & PW3. The appellant’s contention, however, is that the said evidence was ridden with contradictions regarding the actual month that the transaction took place and that contrary to the view held by the learned trial judge, the unexplained contradictions are not mere minor discrepancies but are material in nature and affect the determination of whether the goods were actually bought on credit or not. The contradictions in question, is between the evidence of PW1, who stated that the transaction took place between the months of March & April, 2010, and that of PW2 whose evidence was that the transaction took place in May, 2010 vis-a-vis that of PW3 who merely gave the year as 2010, without stating the month. On the basis of this, the learned counsel argued that their evidence on the fact ought to be rejected.
The pertinent question to ask here is ‘what amounts to a material contradiction that would result in the rejection of witness(s) evidence’.
For contradiction to be regarded as material, it must go to the root of the party’s case and touch on an important element or the plank of the case that the party needs to prove. DIBIE & ORS V STATE (2007) 9 NWLR (Pt. 1038) 30. Contradictions outside this defined category touching on pheripherial facts or minute details are not considered material to the party’s case. At best they are mere discrepancies that are bound to occur in every trial since human memories unlike electronic devices such as computers, do not have equal capacities of storing and retrieving events that happened in the past. Between the occurrence of the event round about April – May 2010 and the evidence of these witnesses in Court between 27/2/2013 and 16/9/14 was a period of four years. Human memory on matters of details and observation tend to fade with the passage of time. It is in the light of these factors that inconsistency in the evidence of these witnesses regarding the date of the occurrence of the event, is to be considered. Several decisions support this view. In the case of EMIATOR V THE STATE Supra, the Supreme Court clearly stated the law when it held that:
“in the normal cause of events it is to be expected that witnesses may not always speak of the same facts with equal accuracy particularly when they speak of events of the past. It is true that time will fade human memory on matters of detail and human observation of event and this tend to differ in some situations. This may occur from variety of reasons when it come to matter of detail.”
Two pieces of evidence are said to be contradictory when they touch on the essentiality of a thing being or not being or when one states or affirms the opposite of what the other denies on material point and not just on mere details. EGWUMI V STATE (2013) 13 NWLR (Pt. 1372) 525, ZAKIRAI V MUHAMMAD (2017) LPELR 4234 (SC). Where one piece of evidence says a certain human being is a male, and the other states that the human is a female, a clear case of contradiction exists. But where the contradiction relates only to the description of the features of the human being, except where such is a fact in issue, there is only a discrepancy in the evidence which does not touch on the essentiality of the existence and gender of that human being. In OSUOHA V THE STATE (2011) 16 NWLR (Pt 129) 364) 391, C – D.
The Supreme Court held thus:
“Contradiction between two pieces of evidence goes to the essentiality of something being or not being at the same time, whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details.”
Therefore, a contradiction that will result in the rejection of the evidence of a witness is one that is material and leads to a miscarriage of justice. See WACHUKWU V OWUNWANNE (2011) 14 NWLR (Pt. 1266) 1, @ 27. In the instant case, I find no contradiction between the evidence of the 3 witnesses for the Respondent on the substantiality of the material fact that the appellant bought the goods on credit. Their evidence remain unshaken and solid as the rock on that fact.
I cannot therefore agree more with the Respondent’s counsel and the lower Court that the contradiction regarding the month the Appellant collected the goods from the Respondent is a mere discrepancy expected to happen in a normal trial, which does not in the least, affect the substantiality of the evidence of the witnesses that the Appellant collected the goods from the Respondent on credit basis.
The learned Appellant?s counsel has labelled the finding of the lower Court that the discrepancy is a mere discrepancy, as speculative by offering an explanation for the contradiction which is not a function of the court.
Truly, the settled position of the law as expressed in several decisions is that speculation is not in the realm of the function of a Court of law neither is it the duty of the Court to search or hunt for explanation for inconsistencies in a party’s case.
There is however a world of difference between speculation and findings of fact deduced from proved or admitted facts or the application of the principles of law to such ascertained facts. A finding is said to be speculative when it is not based on facts or knowledge of its details but on guesses or conjectures and not when it is based on or derivable from the evidence on record. Whereas speculation is a mere variant of imaginative guess which, even when it appears plausible should never be allowed by a Court of law to fill any hiatus in the evidence before it, an inference which is drawing of reasonable deductions from facts available before the Court IVIENAGBOR VS OSATO BAZUAYE & ANOR (1999) 6 SC (PT. 1) 149 per Uwaifo JSC, and the application of legal principles to ascertained facts from the evidence on record which are part of the functions of the judge, does not amount to speculation nor can the judge be accused of offering an explanation in applying the law to a given set of evidence.
Therefore the finding of the learned trial judge based on the nature of the inconsistencies in relation to the material fact in issue, that the inconsistencies were only minor discrepancies, does not amount to speculation or offering an explanation in aid of a party’s case. The said finding which was based on the evidence on record and the application of the law to the evidence, cannot wear the toga of speculation as strenuously but erroneously argued by the learned Appellant’s Counsel.
In support of the Appellant’s position that the goods were not bought on credit but were collected for distribution to the Respondent’s known customers, evidence was adduced on behalf of the Appellant to show that it was the Respondent who fixed the prices at which the wrappers were to be sold. This evidence unfortunately, goes to no issue as such evidence does not flow from the pleadings. It is an elementary law of pleadings that evidence which is not founded in any pleaded fact goes to no issue and lacks the foundation to rest upon. It is like fetching water into a bottom less container and expect to find the water in the container. It is an exercise in futility. Put in a legal Maxim ‘ex nihilio nihil fit’, from nothing comes nothing. It is like an attempt to place something on nothing and expect it to stand. Obviously, it cannot stand, it will collapse and crumble to pieces.
See UAC V MACFOY (1962) A-C 152. The evidence led on the fixing of the prices for the wrappers by the Respondent having not been pleaded goes to nothing.
Similarly, in furtherance of his contention that the goods were not bought on credit, learned Appellant’s counsel profusely and tenaciously referred and held unto the evidence of PW2 in cross – examination that:
“the defendant introduced two of his customers to us and we collected money from them” to argue that the Respondent not only knew some of the customers to whom the goods were distributed by the Appellant, but also that the Respondent dealt directly with them to collect the money.
This argument however, suffers from two incurable ailments. Firstly, the evidence that the Respondent dealt with and directly collected money from the customers is not only belied by the Appellant?s evidence at page 50 where he stated:
Alhaji Abdulqadir Yahaya does not collect money directly from the customers?”
but is also at variance with and poles apart from his pleadings. Evidence at variance with pleadings goes to no issue and is of no assistance to the party.
Not only that, such evidence will not be allowed as parties are bound by their pleadings and must maintain a consistent position between their case at pleadings and at trial. Evidence must match the pleadings and any evidence either adduced by the party or elicited through cross – examination must align with the party’s pleadings otherwise such evidence must be disregarded. Belgore JSC, as he then was in the case of BAMGBOYE V OLUSOGA (1996) 4 SCNJ succinctly stated the law that a party should not, after filing a suit, change the nature of his action and evidence to support it. Similarly, the law was re-echoed by Onnoghen JSC as he then was in AKOMOLAFE V GUARDIAN PRESS (LTD) PRINTERS (Supra) that evidence elicited under cross – examination must be on facts pleaded by the party concerned, for it to be relevant to the determination of the question/issue in controversy between the parties.
Secondly, the said evidence, from its grammatical construction, does not prove the fact it seeks to establish; viz, that the customers to whom the goods were allegedly distributed by the Appellant, were the known customers of the Respondent. The evidence is very clear and emphatic that it was the ‘Appellants’ customers that the goods were distributed to, in contradistinction to the Appellant’s vehement submission that the goods were distributed to the known and accredited Respondent’s customers.
Now, on the strength of Exhibits A – A1, B – B1 & C – C13, the lower Court found that the Appellant bought the goods on credit from the Respondent; made some installmental payments leaving a balance of N3, 345, 200.00 unpaid. On this also, the Appellant’s learned counsel has vehemently submitted that the Court below did not properly evaluate the evidence before arriving at the conclusion, for the Appellant’s denial of the signature on the exhibits and his specimen signature on exhibit D, were not considered. The trite position of the law is that all documents properly placed before the Court for consideration must be duly and closely evaluated before arriving at a conclusion one way or the other. See TANGILE TRADITIONAL COUNCIL V FAWU (Supra).
It is however, equally the law that the rejection of a document or failure to ascribe probative value to any document does not mean a failure on the part of the trial judge to consider the document in the evaluation of the entire evidence placed before it. See SUGH V STATE (1988) 5 SCNJ 58. Preference of one set of evidence or another, if based on the correct principles of law and properly carried out, does not have to consist of lengthy essays or thesis. All that is required, is that the preference of one evidence over the other is supported by evidence on record.
Now, there is unchallenged evidence on record, inspite of the Appellant’s denial of the signature on the exhibits, that exhibits A & A1 emanated from the Appellant. I say so because the Respondent’s evidence that the Appellant wrote a letter to him stating that he would pay him (the Respondent) the balance of his money remains unchallenged in cross-examination. This unchallenged evidence, I dare say, renders the appellant’s denial of the signature on exhibits A & A1 a farce and entitles the Court to prefer the Respondent’s evidence over and above exhibit D & the Appellant’s denial. More so, as correctly submitted by the Respondent’s counsel, the Appellant does not deny making the payments but only denies his signature on the receipts and on the letters of undertaking to pay the money. It is therefore not correct as argued by the Appellant’s counsel that the lower Court did not evaluate exhibit D or Appellant’s denial on exhibit A – A1 before arriving at the conclusion that the Appellant wrote an undertaking to pay the balance.
On the actual amount remaining unpaid, Appellant’s learned counsel took us through the evidence of Pw3 to show that the arithmetical computation of the signatures after some payments were made, do not tally. That may very well be so, but there is the Appellant’s evidence in cross – examination admitting the remaining balance unpaid as N3, 330, 000.00.
At page 20 lines 17 – 20 of the record the Appellant stated:
“There is about N3, 330, 000.00 remaining unpaid from the customers I distributed goods to. The said money is the value of the good I personally collected from the plaintiff and distributed to the customers.”
The learned Appellant’s counsel labored at great pains in his reply brief trying to make the point that the above evidence of the Appellant in cross – examination should not be taken in isolation from the entire pleadings and the case. While I agree with him entirely on the statement of the legal principle, our parting of ways is with the application of the principle to this present case in the light of the evidence on record inclusive of the evidence in question. This evidence elicited from the Appellant in cross – examination no doubt, is a clear admission of the stated sum of N3, 330, 000.00 as the outstanding balance.
It is now a common verse in legal prose that judicial admissions are conclusive, require no further proof and bind the parties so long as they are relevant to the facts in issue. See IRONBAR V FEDERAL MORTGAGE FINANCE (Supra) amongst several decisions on this restatement of the law. In case of TAIWO V ADEGBORO (Supra) Rhodes Vivor JSC, succinctly captured the law in the following phrase;
“Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect after an admission, no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue.”
It is therefore not open to the Appellant, after admitting the amount of the outstanding balance, to deny the amount or contend that the figures do not tally. That argument is rather belated, for a party is bound by his admission and cannot be allowed to approbate and reprobate at the same time.
Furthermore, assuming that the Appellant only fronted for the Respondent in distributing the goods, the hard facts remain that it was the Appellant who collected the 100 dealers of wax from the Respondent; that no payment was made to the Respondent at the point of collection; that the goods were distributed by the Appellant to his customers; that some part payment has been made, even if it be conceded as claimed by the Appellant, through him to the Respondents; that an outstanding balance of N3, 345.000.00 remains unpaid. The pertinent question that arises is ‘should the Appellant be absolved from liability even if, by the widest of imagination, and this is very farfetched, it is accepted that the Appellant only fronted for the Respondent in distributing the wrappers’. My instant and reasoned answer to this poser is a resounding ‘No’.
How else does the Appellant in this scenario expect the Respondent from whom he admitted collecting the goods and distributing same to his own customers get back the balance of his money from customers with whom, the Respondent has no contractual relationship and who are complete strangers to him?
There is absolutely no contractual relationship between the Appellants customers to whom the Appellant allegedly distributed the goods and the Respondent from whom the goods were collected. By the doctrine of privity of contract, there must exist a connection or relationship between two or more contracting parties for the action of one to bind or benefit the other. In REBOLD INDUSTRY LTD V MAGREOLA (Supra) the Supreme Court dealt extensively with this doctrine and made some key pronouncements on the principle. The Court held that as a general rule, a contract cannot confer rights or impose obligations on strangers to it and that a contract cannot be enforced by a person who is not party to same even if made for his benefit.
The real purport of the doctrine was succinctly stated by the Court in the following words; “the import of the doctrine of privity of contract is that a contract or an agreement cannot bind a person who is not a party to it nor can such person take or accept liabilities under the contract or agreement nor benefit there under. In other words, only parties to a contract can enforce it. A person who is not a party to a contract or an agreement cannot sue on same even if the contract or agreement was made for his benefit.”
This is why the Court went further to say:
“A plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of contract as he will simply not have a locus standi to sue the defendant on the contract.”
In the afore stated Scenario of the instant appeal, the respondent not being a privy to any contract or agreement with the persons to whom the goods were allegedly distributed and against whom the respondent cannot legally maintain an action, and the appellant having not shown that he acted as the respondent’s agent, it is not only a legal truism but also common sense that the appellant cannot be absolved from liability to pay the outstanding balance of the value of the goods he personally collected from the respondent. It is the appellant and not the alleged customers who are indebted to the respondent and it is the appellant who must be made to pay the money. Appellant cannot escape from liability to settle the outstanding debt the same way that he or through him, as he alleged, the previous installment payments were made to bring down the balance to the figure now standing unpaid. If the Appellant who allege he distributed the goods to the customers truly and strong feel that it is those customers and not himself who are indebted in that sum, the sun would not have risen and will not rise from the West and set on the East before its appointed time, had the Appellant sued or applied for the joinder of the customers at the lower Court or even in a separate action, since he was, who without Respondent’s authorization, and not the Respondent, who gave the wrappers to those customers.
In a very similar case of NASIRU IBRAHIM V. ABDULKADIR YAHAYA (2016) LPELR- 41810 in appeal no. CA/S/14/2016 delivered in December, 2016 the facts of which are on all fours with those of the present appeal, a sister case, as it is loosely and common called, and to which my attention was drawn by the learned appellant?s counsel, my learned brother F. O. OHO, JCA standing on the same ground with me on the same set of facts had this to say inter alia:
“But the question to be addressed here is; how else does the Appellant want his relationship with the Respondent to be defined? Here is a situation in which the Appellant, by his showing, admitted to have accepted 172 belts of atampa wax wrapper materials from the Respondent valued N16, 340, 000.00 and at that time, no payment was made for the goods. Here is also a situation in which the Appellant, once again by his own showing had admitted collecting those wares and distributed same to his customers whose name and identities he kept close to his chest throughout the trial at the lower Court. With this position even where it is conceded, and which will be an uphill task in the circumstances of this case, that relationship between the parties was not as it was contemplated by the Respondent, then under the simple laws of contract, Appellant will not escape liability.”
As in the said case, the Appellant here also admitted collecting 100 dealers of super print wax from this same Respondent valued at N8.2m; that no payment was made at the point of collection. He also admitted that some payments have been made through him, by the customers to whom he distributed the goods, to the Respondent. In addition, he undertook as evidenced by exhibits A & A1 and supported by the unchallenged evidence of PW2, to pay the remaining balance of N3, 345, 200.00 to the Respondent, which has not been paid. Surely, it is the Appellant and not the customers who is indebted to the respondent and cannot escape liability to pay the outstanding balance to the Respondent. I therefore adopt the reasoning of my learned brother with whom we are on the same page on the same set of facts, in addition to the reasons articulated in this judgment, that the appellant cannot escape liability to pay to the respondent the outstanding balance.
I am aware that in a related case, of LIMAN GANDI V ALH. ABDULKADIR YAHAYA Appeal No. CA/S/91/2017 delivered on 28th November, 2018, the facts of which are distinguishable and not on all fours with the present appeal, this Court allowed the appeal on ground of inconsistencies in the Respondent’s case and absence of proper evaluation of evidence by the trial Court. In that appeal unlikely in the present, there were material contradictions not only between the evidence of PW1 & PW2 but also as between their evidence and the pleaded fact on the question of actual quantity and the cost price of the bales of wrappers supplied to the Appellant. Those contradictions materially touch on the Appellant’s claim at the lower Court.
Therein, while it was the evidence of PW1 that 160 dealers of wrappers were supplied to the Appellant at the total cost of N13, 120, 000 (Thirteen Million, One Hundred and Twenty Thousand Naira Only), the evidence of PW2 therein was that only 130 bales of wrappers at the total cost of N10, 400, 000.00 (Ten Million Four Hundred Thousand Naira Only) were supplied to the appellant. The computation of the figures were at variance with the pleadings in para. 20 of the statement of claim.
While the appropriate quantity of bales that would have given the figure of N4,377,530.00 therein claimed, is approximately 50 bales, PW2 talked about 100 bales.
These contradictions materially touch on the core of the Respondent?s claim.
Another striking distinction between that appeal and the present one is that, in that appeal the appellant not only took the list of the debtors to the Respondent but respondent agreed to deal with the debtors directly.
It is trite that it is the facts of any given case that will frame the issues for decision and the facts of two cases must be either the same or at least similar before the decision in one case can be used as a guide to the decision of another case. In CHIEF GANI FAWEHINMI V. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 AT 650, Oputa JSC of blessed memory had this to say inter alia:
“… The facts of two cases must be either the same or at least similar before the decision in one can be used and even there as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
Thus, as stated by the great jurist, decisions of Courts based on peculiar facts of one case cannot be applied across board to another case with distinct and different facts and circumstances. Decisions of Courts draw their inspiration and their strength from the very facts which framed those issues for decision. It follows that the decision of this Court in appeal NO. CA/S/91/2017 whose facts and circumstances are different from the present appeal cannot be a guide to this appeal.
On the whole and in conclusion, this appeal, for all I have stated, is devoid of any merit and deserves to be and is hereby dismissed by me with cost of N20, 000.00 against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read the draft of the judgment just rendered by my learned brother Amina Audi Wambai, JCA. I fully agree with the reasons therein and the conclusion that there is no merit in the instant appeal.
It is an elementary principle of law that each case is decided on its peculiar facts and circumstances. The decision in one case is not applicable to another unless the two are similar in respect of their material facts and circumstances. Where such facts and circumstances differ, the decisions correspondingly differ as well.
The appeal is lacking in merit and is hereby dismissed. I subscribe to the orders made on costs in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by all consequential orders made thereto.
Appearances:
IBRAHIM ABDULLAHIFor Appellant(s)
A. Y. ABUBAKARFor Respondent(s)
