ALAO AMOS v. PHOTO PALACE LIMITED (2013)

ALAO AMOS v. PHOTO PALACE LIMITED

(2013)LCN/5998(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of March, 2013

CA/S/10/2010

RATIO

BURDEN OF PROOF IN CRIMINAL AND CIVIL MATTERS

Such criminal allegations are to be proved beyond reasonable doubt, see S 135 of the Evidence Act 2011.
It is also trite law that he who asserts must prove. According to S136(1) of the Evidence Act.
“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”.
See also AGALA AND ORS V OKUSIN (2010) 10 NWLR (PT 1022) 412, where Mukhtar JSC had this to say.
“Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence. See ELIAS V OMO-BARE (1982) 5 SC. 2, WOLUCHEM V GUDI (1981) 5 SC. 291. ELIAS V DISU (1962) 1 ALL NLR 214 and IMANA V ROBINSON (1979) 3-4 SC 1 and Section 135 of the Evidence Act Cap 112. Laws of the Federation of Nigeria 1990″PER TUNDE O. AWOTOYE, J.C.A.

INTEREST: HOW IS DEBT PAID GENERALLY

“Generally, interest is not payable on ordinary debt in the absence of a contract express or implied or mercantile usage or custom of the parties or as may be contained in statute.”PER TUNDE O. AWOTOYE, J.C.A.

JUSTICES

AHMAD OLANREWAJU BELGORE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

ALAO AMOS Appellant(s)

AND

PHOTO PALACE LIMITED Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in the appeal filed by the appellant, Alao Amos Olusayo, against the judgment of Abbas J of Sokoto High Court of Justice delivered on 27/2/2009 in suit No SS/32/2006.

The plaintiff at the lower court (who is now the Respondent) claimed as follows:

“CLAIM: The plaintiff’s claim against the defendant as follows:

1. The sum of N646,000.00 only being the sum due and owing by the defendant on a hire purchase agreement between them.

2. The sum of N10,491,183.49 being the sum money due and owing by the defendant on a hire purchase scheme between from 1st October 2003 and 30th November 2005.

3. Interest rate of 32% per annum on N646,000.00 from 23rd June, 2006 till judgment.

4. And interest rate of 32% per annum on N10,491,183.49 from 30th November 2005 till judgment.”

The defendant filed a statement of defense to the claim and also counter-claim as per paragraph 17 of the statement of Defense thus;

“WHEREOF the Defendant claims;

a) AN ORDER dismissing the claims of the plaintiff as contained in the statement of claim secretion and intoto.

b) The sum of N8,715,361.00 (eight million, seven hundred and fifteen thousand and three hundred and sixty one Naira only) made up as follows:

i. Deposit on resignation – N330,000.00.

ii. Sale of Generator to Yusuf Jega – N330,000.00 on 2/6/2006.

iii. Overpayment through bank – N7,305,361.00 as at 31/5/2006.

iv. Lost custom between July 19 – August 2, 2006 – N750,000.00.

c) The sum of fifty thousand Naira per day beginning from the 3rd day of August, 2006 until this suit is determined.

d) The cost of this defense and the action

e) AND ORDER OF PERPETUAL INJUNCTION restraining the Plaintiff either by itself or through its agents, servants, privies or by and through any other vessel or agents from disturbing, interfering and interrupting the activities and business or activities of the Defendant at 94 Ahmadu Bello Way, Sokoto or any other place in and outside Nigeria.

f) Any other order or orders as this Honourable Court may deem fit to make in the circumstances.”

After exchange of pleadings and hearing of the parties, the learned trial judge gave judgment in favour of the plaintiff as follows:-

“The Defendant’s counter-claim has not been proved and it is therefore hereby dismissed accordingly on the failure of the defendant to lead credible evidence in support. Judgment entered for the plaintiff is the sum denied while the Defendant’s counter-claim is dismissed.
Judgment for the plaintiff.”
Being dissatisfied with the judgment, the appellant vide his
Notice of Appeal dated 17/3/2009 filed 3 grounds of appeal.
He later amended the Notice of appeal to add four additional grounds of appeal.

After transmission of record of appeal, parties filed and exchanged briefs of argument.

The appellant’s brief was settled by Jubril Osa Uwadiae and it was filed on 16/1/2012.

Learned appellant’s counsel formulated two issues for determination. The two issues were also adopted by Respondent’s counsel in the Respondent’s brief of argument. The two issues are as follows:

a) Whether the appellant (the defendant at the lower court) proved his counter-claim (Grounds 3, 4 and 6).

b) Whether the Respondent (then plaintiff at the lower court) was entitled to the judgment in the sum awarded by the lower court based on the available evidence (Grounds 1, 2, 5 and 7).

On the first issue, learned counsel submitted that the Respondent at the lower court did not deny receiving the payments enumerated in the statement of defense and counter-claim. He stated that parties were bound by their pleading. He cited OJO V SASAKI (2010) 7 WRN 117 at 123, 144. He submitted that undenied facts needed no proof. He relied on F.A.B.S LTD V IBIYEYE (2008) 34 WRN 103 at 141; OJUKWU V ONWUDIWE (1984) 1 SCNLR 247. He referred to the evidence of the DW1, which he claimed was not challenged under cross-examination and this should be held to be fatal to the party who failed to cross-examine him. He relied on AROGUNDADE V THE STATE (2009) 2 SCNJ 44.

Learned counsel for the appellant further argued that the trial judge failed to properly evaluate the evidence adduced before him. He stated that the learned trial judge dealt with the counter-claim in a write-up of 15 lines only and that the evidence of the defendant was not reviewed.
Appellant’s counsel further submitted that the defendant proved the damage to the equipments. He referred to several pages of the record and asserted that from the totality of the case of the appellant, the counter-claim relating to the vandalisation by the Respondent had been proved. He also stated that there was no denial of the fact that the appellant made N50,000.00 per day from the business.

Learned appellant’s counsel, on the failure to call policemen mentioned on the record, submitted that the onus was on the Respondent to call policemen from the police station to rebut the allegation of violence and the use of force to make the appellant sign the documents on which the Respondent relied on at the court below. He finally urged the court to resolve the first issue in favour of the appellant.
On the second issue, learned appellant’s counsel submitted that the plaintiff did not prove its case at the lower court and was not entitled to any order of the lower court other than dismissal of its claims.
Learned counsel referred to the heading of Exhibit H and asked what the deposit was meant for. He concluded that it had to have been for photographic equipments. Appellant counsel submitted that the document in respect of the hiring scheme tendered by PW, ought to have been rejected. He stated further that the hiring reconciliation admitted in evidence was a mere photocopy.

Learned appellant’s counsel referred to several portions of the proceedings and submitted that the learned trial judge failed to consider the issues and facts placed before it.
He submitted that where the appraisal of evidence was not based purely on the credibility of witnesses an appellate court was in as good a position as the trial court to evaluate same and draw the correct inference. He relied on ADESINA V SUNMONU (2008) 17 WRN 129 at 156.

He finally urged the court to allow the appeal, enter judgment for the appellant as per the counter-claim and dismiss the original claim of the respondent at the lower court.
The Respondent’s brief was deemed filed on 28/11/2012. It was prepared by E.T Ogiza on behalf of the Respondent. Earlier on, the preliminary objection raised by the Respondent and argued on pages 5-13 had been struck out on ground of incompetence thereby leaving only the submissions of the Respondent’s counsel on the main appeal.

As aforesaid, the Respondent’s counsel adopted the two issues formulated by the Appellant’s counsel in his brief. On the first issue, learned Respondent’s counsel submitted that parties were bound by their pleadings and that facts denied by the adverse party ought to be established by party who asserted them. He relied on FAGBENRO V AROBAGI (2006) 1 JNSC 174 at 188. Learned counsel asserted that the plaintiff denied the averments in the statement of defense and counter-claim and filed a reply. He referred the court to the many contradictions in the case of the defendant and drew attention to pages 149 and 162 of record of appeal.

He submitted that the claim of vandalisation or torture that required proof beyond reasonable doubt being criminal in nature was not proved.

He therefore urged the court to uphold the submissions of the Respondent on this issue.
On issue No 2 learned Respondent’s counsel referred to the documents admitted as Exhibits and the evidence of PW1 which he submitted clearly established the claim of the Respondent.
Learned counsel added that the judgment of trial court granting the claims of the Respondent was proper.
He urged the court to dismiss the appeal.

I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.

I have gone through the two issues formulated by the counsel on both sides and I find them adequate for the purpose of this appeal.

I shall therefore treat this appeal in the light of the two issues.

ISSUE I
Whether the appellant proved his counter-claim.

ISSUE II
Whether the Respondent was entitled to the Judgment in the sum awarded by the lower court based on the available evidence.

ISSUE I
The appellant who was the defendant at the court below filed a statement of defense on 4/8/2006 and included his counter-claim.

In paragraph 17 of the statement of defense, the defendant claimed thus;

“WHEREOF the Defendant claims;

a) AN ORDER dismissing the claims of the plaintiff as contained in the statement of claim secretion and intoto.

b)The sum of N8,715,361.00 (eight million, seven hundred and fifteen thousand and three hundred and sixty one Naira only) made up as follows:

i. Deposit on resignation – N330,000.00.
ii. Sale of Generator to Yusuf Jega – N330,000.00 on 2/6/2006.
iii. Overpayment through bank – N7,305,361.00 as at 31/5/2006.
iv. Lost custom between July 19 – August 2, 2006 – N750,000.00.

c) The sum of fifty thousand Naira per day beginning from the 3rd day of August, 2006 until this suit is determined.

d) The cost of this defense and the action.

e) AND ORDER OF PERPETUAL INJUNCTION restraining the plaintiff either by itself or through its agents servants privities or by and through any other vessel or agents from disturbing, interfering and interrupting the activities of the Defendant at 94 AHMADU BELLO WAY, SOKOTO or any other place in and outside Nigeria.

f) Any other order or orders as this Honourable Court may deem fit to make in the circumstances.

The plaintiff (now the Respondent) filed REPLY TO STATEMENT OF DEFENSE AND COUNTER-CLAIM denying every material allegation in the statement of defense and counter-claim both generally and specifically.

After hearing the parties, the learned trial Judge held;
“The defendant’s counter-claim has not been proved and it is therefore hereby dismissed accordingly on the failure of the defendant to lead credible evidence in support. Judgment entered for the plaintiff in the sum claimed while the Defendant’s counter-claim is dismissed.”

Did the defendant prove his counter-claim? The defendant to succeed on the counter-claim had to prove;

a) the deposit of N330,000.00 on resignation,

b) sale of generator to Yusuf Jega at N330,000.00,

c) overpayment through bank N7,305,361.00 – by tendering bank receipts and tellers,
d) lost custom of N750,000 and

e) N50,000.00 loss per day.

It must be stated at this juncture that, on the pleadings all the items under the counter-claim were denied by the plaintiff in its Reply to statement of Defense and counter-claim filed on 1/9/2006 and his oral evidence in court.

It must also be added that allegations of fraud and torture are criminal allegations that were made by the defendant in paragraphs 10, 15-18 of the amended statement of defense. Paragraphs 10, 15-18 of the amended statement of defense read;

“The Defendant adds that the said Tony Abor, being fraudulent, stole the sum of thirty thousand Naira from the realized proceeds from the sale of Generator and only remitted the sum of three hundred thousand Naira only to the Plaintiff vide a bank draft No 1316787 dated June, 2, 2006 and which bank draft is hereby pleaded.

The Defense averts that on or about the 31st May 2006, he observed that he had so far paid the sum of sixteen million two hundred and fifty thousand and three hundred and sixty one Naira only he wrote a letter to the Plaintiff to make a refund of the sum of seven million nine hundred and sixty one Naira only, (which amount the defendant now counterclaims against the Plaintiff) being the over payment since there was no additional equipment needed at the Photographic equipment which the Defendant bought of the Plaintiff.

Further to the averments in paragraph 8 supra upon the request by the defendant that a refund of the overpayment, the defendant also asked the Plaintiff to draw up a final agreement document evidencing the full payments and the transfer of title in the equipment and plants hereinbefore appearing.

The Defendant avers pursuant to the averments in paragraph 9 supra, the Plaintiff sent one Tony Abor to come to Sokoto and hand over all the properties to the defendant. The Defendant averts that rather than deliver documents evidencing the transfer of property in the plantsand equipments to him, the Plaintiff started vandalizing the equipments in his custody whence a report was made to the Kwanni Police Station, Sokoto.

On June 12, 2006, the defendant was arrested by the Police from the station. The defendant avers that further to the averments in paragraph supra, the defendant was detained and seriously tortured for several hours with various instruments including needle which was occasionally used to tarnish the private part of the defendant.

Further to paragraph 16, supra, the defendant adds that while during the torture of the defendant by the Police certain documents were given to him to append his signature else he would be confirmed dead in the event of a refusal to sign.
The defendant avers that his torture was done in the presence of Alhaji A. A. Amusa who brought the documents from Lagos. The defendant avers that he was released from Police cell at about 4 am the next day with a warning that he should not enter his office the next day.

The defendant avers that on June 13, 2006 that the plaintiff had taken over the premises of his business situated at 94, Ahmadu Bello Way, Sokoto with the presence of members of the Police Force and civil defense Corps which prevented the defendant from entering his office between June 13, 2006 and 26th June, 2006.

The defendant on paragraph 17 of his amended statement of defense averred that some documents were given to him to append his signature. Ostensibly, this included Exhibit D1, undertaking dated 1/12/2005 agreed by the defendant which appeared to be a complete answer to most of the items claimed by the defendant. For clarity’s sake, I quote it hereunder:

“From Sayo
PPL Sokoto
01/12/05

To: General Operations Mgr
FIL/PPL, Head Office (Adebola House)
40, Opebi Road, Lagos – Ikeja

Dear Sir,

UNDERTAKING

I refer to my application and interview I had with you on the recently introduced Economic Sustenance Programme (ESP), under the hiring scheme, I am indebted to the Company in the sum of N11,237,183.50 which is made up as follows;

1. Outstanding hiring charges Oct 2003 to Nov 2005 – N10,957,733.00

2. Hires Material Account as at 30th Nov 2005 – 609,450.49 Less Security Deposit-330,000.00 Total – 11,237,183.49

I promised to liquidate the sum of – 11,237,183.49 by a weekly installment of N31,600.00 in addition to the agreed weekly hire purchase installment of N58,400.00 over thirty months period.
Also I promised to pay my other debt in the sum of N – in six installment of -.

If I should fail to remit the weekly installments in respect of my outstanding debts and hire purchase agreement for two consecutive weeks, I hereby consent to the right of the Company to invoke the repossession clause in the hire purchase agreement.

Yours faithfully

Alao Sayo”

In answer to this document, the defendant claimed to have signed it under duress but called no witness or any police officer to support his claim; even though he earlier stated that it was in the presence of PW1, Akinyemi Kamarudeen (see page 150 of record of appeal) but later stated that it was in the presence of Alhaji A. A. Amusa, the Group Managing Director of the plaintiff. PW1 gave evidence in chief, but under cross-examination this issue of being forced to sign Exhibit D1 was not put to him. His evidence on the memos written to the defendant dated 11/5/2006, 30/5/2006 and 1/6/2006 were not challenged under cross-examination. This amounts to admission of those unchallenged assertions. See NWABUOKU V OTTIH (1961) ALL NLR 489, TSOKWA OIL MARKETING CO NIG LTD V BANK OF THE NORTH LTD (2002) 5 SCNJ 176 at 194, NEWBREED ORG LTD V ERHOMOSELE (2006) 5 NWLR (PT 974) 499.
The meaning of all the above is that the contents of Exhibit D1 are true and this knocks the bottom out of the counter-claims b (ii) and b (iii) of the defendant.

The defendant also claimed that Yusuf Jega fraudulently sold the generator but did not call evidence to back this assertion.
There is also no evidence to support the claim of loss of custom of N750,000.00 between 19/7/2006 and August 2, 2006, and the N50,000.00 per day from 3/8/2006 till the final determination of this suit

I therefore have no hesitation in holding that the learned trial Judge was right to have held that the defendant did not adduce credible evidence in support of his counter-claim.
The appellant has contended that from the state of the pleadings, it should be taken that the plaintiff admitted the defendant’s counter-claim. I respectfully disagree. The plaintiff filed a Reply to statement of Defense and counter-claim of the defendant on 1/9/2006 wherein he sufficiently denied the averments in the defendant’s statement of defense and counter-claim. When the defendant gave evidence he was also extensively cross-examined on all the issues raised in his counter-claim.

It is significant to note that the defendant’s statement of defense and counter-claim was amended in the cause of the defendant’s defense after plaintiff had closed its case. The amendment accommodated the allegations of maltreatment, torture and signing under duress at the police station, I have observed, however, that the PW1 was not confronted with these allegations under cross-examination.
I am fully persuaded to resolve this issue in favour of the Respondent.
I also resolve the second issue in favour of the Respondent, subject to my finding on the award of interest by the trial court. The Respondent proved in evidence documents which constituted convincing proof of the indebtedness of the defendant/appellant to it. Attempts by the defendant to indict the documents were too feverish and unconvincing. For instance, to successfully impeach the overwhelming evidence in Exhibit D1 which the defendant claimed to have signed under duress, the defendant needed to prove his case on this beyond reasonable doubt. This he failed to do. Again, to prove the numerous payments allegedly made by him to the plaintiff the defendant failed to either call witness from the bank through which he made the statement or tender either tellers or receipts to the said effect. On the other hand, the plaintiff provided several documentary exhibits in support of its case. It is necessary to note that it is not every error in a case that will result in an appeal being allowed. It is only when the error has occasioned miscarriage of justice that an appeal can be allowed on the ground of the error. See NWAEZE V THE STATE (1996) 2 NWLR (PART 428).

Now to issue No 2. WHETHER the Respondent (then plaintiff at the lower court) was entitled to the Judgment in the sum awarded by the lower court based on the available evidence. What did the learned trial Judge award in his judgment? In his judgment on page 220 of record of appeal, he found as follows;

“In the result therefore, from the evidence at the court’s disposal, the plaintiff has proved his claim against the defendant on preponderance of evidence and is entitled to judgment as per the claim in the writ of summons as further reproduced in his paragraph 21 1-4 of the Amended statement is hereby entered in his favour against the defendant/counter-claimer in the sum of N646,000.00. see page 220 six hundred and forty-six thousand Naira only being the sum due and owing by the Defendant on a hire Purchase agreement between the Plaintiff.

2. The sum of N10,845,183.49k (Ten million eight hundred and forty-five thousand, one hundred and eighty three Naira, forty nine Kobo) being the sum due and owing by the Defendant on hiring scheme between the Plaintiff and Defendant from 1st October 2003 and 30th November, 2005.

3. Interest at the rate of 32% per annum on N646,000.00k from 23/6/2006 till Judgment and

4. Interest rate 32% per annum on N10,845,183.49k from 30/11/2005 till judgment.”

The latest documents to be signed by the defendant, which were admitted as Exhibit D are;

i. Letter of undertaking dated 1/12/2005 – Exhibit D1.

ii. Hiring agreement dated 1/12/2005. – Exhibit D.

iii. Debt repayment schedule dated 11/5/2006 – Exhibit E.

iv. Letter of termination of hire purchase agreement dated 23/6/2006.

The above documentary exhibits which were admitted with consent of both parties were not effectively impeached by the defendant/appellant at the lower court. Documents admitted in evidence, being permanent in form are more reliable than oral evidence and are used as hanger to test the credibility of oral evidence. See C.D.C (NIG) LTD V SCOA (NIG) LTD (2007) 6 NWLR (PT 1030) 300. I am of the respectful view that the learned trial judge was right to have relied heavily on the documentary evidence tendered before him in giving judgment in favour of the Plaintiff/Respondent.
However, on the issue on interest awarded – the learned trial Judge awarded pre-judgment interests of 32%. Is this right?
According to Onnoghen JSC, in his judgment in suit No SC/160/2003 delivered on 17/6/2011;

“Generally, interest is not payable on ordinary debt in the absence of a contract express or implied or mercantile usage or custom of the parties or as may be contained in statute.”

It may also be in place through fiduciary relationship between the parties. See RNA EKWUNIFE V WAYRE (West Africa) LIMITED (1989) 5NWLR (PT 122) at 455.

In HIMMA MERCHANTS LTD V ALHAJI INUWA ALIYU (1994) 6 SCNJ (PT 1) 87, the Supreme Court per Onu JSC in a similar situation pronounced as follows;

“Where therefore there is no evidence whatsoever, as in the interest case that the claim of interest is founded upon any rationale eg, mercantile custom, on trade usage known to the parties the claim of interest for 20% per month from July 1988 which antedates the judgment passed on 27th October 1989 by the trial court is without and ought to have been disallowed by the court below”. It is the duty of a court to interpret the contract entered into by the parties as contemplated by them. See IRENE THOMAS V TIMOTHY O OLUFOSOYE (1986) 1 NWLR (PT 18) 669, see also IDAKULA V RICHARDS (2001) 1 NWLR (PT.693) page 122, 124-125.

I have gone through the agreement between the parties. I have also gone through the evidence adduced by the parties. I am unable to see any iota of evidence to support the award of prejudgment interest awarded by the lower court. It does not appear to have been within the contemplation of the parties to the contract and it is the duty of the court to interpret the contract entered into by the parties. I am with due respect to the Learned trial Judge unable to agree with the award of pre-judgment interests in his judgment. I hold that the awards are wrong. I hereby set them aside.
In the circumstance I resolve issue No 2 in favour of the appellant.
This appeal succeeds in part. The award of 32% per annum on N646,000.00 from 23/6/2006 till judgment is hereby set aside and the award of 32% per annum on N10,845,183.49k from 30/11/2005 till judgment is also set aside. In their place, I hereby order that the claims for pre-judgment interests having not been proved by the plaintiff/respondent are hereby dismissed.
For the avoidance of doubt, the findings of the lower court on the sum of N10,845,183.49k being the sum due and owing by the defendant on hiring scheme between the plaintiff and the defendant from 1st October, 2003 and 30th November, 2005 and the N646,000.00 awarded in favour of the plaintiff at the court below stand, and are hereby affirmed. I also affirm the dismissal of the counter-claim of the defendant/appellant.
Parties are to bear their respective costs.

AHMAD O. BELGORE J.C.A.: I have the privilege of a preview of the judgment just delivered by my learned brother, TUNDE O. AWOTOYE, J.C.A., dismissing this appeal.
I agree that the appeal lacks merit and I also dismiss it.
I abide by the consequential orders made in the lead judgment including the order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege to read before now in draft the Judgment of my learned brother Tunde O. Awotoye. He has exhaustively and adroitly dealt with all the issues. I have nothing more to add. I agree with him that this appeal succeeds in part. I abide by all the consequential orders made in the judgment.

Appearances

Jibril Osa Uwadiae Esq.For Appellant

AND

E. I. Ogiza & Co.For Respondent