In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2002




ISA AYO SALAMI   Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD   Justice of The Court of Appeal of Nigeria

MAHMUD MOHAMMED   Justice of The Court of Appeal of Nigeria





U.A.C. OF NIGERIA PLC Respondent(s)


ISA AYO SALAMI, J.C.A (Delivering the leading Judgment): This is an appeal against the decision of Aboki, J., delivered on 30th October, 2000 wherein judgment was given against the defendant for the sum of N2, 262,430.14, an amount far less than the plaintiff’s claim of N2, 786,840, endorsed on the writ of summons taken out on 30th March, 1999. The suit was brought under the provisions of Order 23, of the Kano State High Court (Civil Procedure) Rules 1987. The writ of summons marked undefended list was supported by affidavit. Upon service of the writ of summons on the defendant a conditional appearance was entered. A notice of intention to rely on a preliminary objection was given in addition to filing notice of his intention to defend the action on the merit. The preliminary objection was considered and refused the relevant ruling rejecting the preliminary objection was delivered on 7th June, 2000.
Upon service of the notice of intention to defend, the plaintiff deposed to a further and better affidavit in which he proffered explanations for some of the averments contained in the affidavit in support of notice of intention to defend.
The learned trial judge in his reserved and considered judgment entered judgment in favour of the plaintiff in a sum other than the sum claimed in the writ of summons. The defendant was not happy with the decision of the trial court and being aggrieved appealed to this court on 9 grounds of appeal. The notice of appeal contained in the record does, however, not bear evidence of filing not to talk of its being filed within time prescribed.
In accordance with practice and procedure of this court, briefs of argument were filed and exchanged at appellant’s and respondent’s briefs. In the Appellant’s brief filed on behalf of the defendant (herein after referred to as the appellant) the following four issues were framed:-
“1. Whether the Respondent/Plaintiffs claim is sufficiently proved and the averment contained in the various affidavit filed on behalf of the plaintiff are unchallenged.
2. Whether the affidavit in support of the notice of intention to defend did not disclose any defence on the merits to entitle the suit to be transferred to the general cause list or trial.
3. Whether the suit was properly placed on the undefended list.
4. Whether failure to consider the various issues including jurisdictional issue raised in the affidavit in support of the notice of intention to defend is not a breach of fair hearing.”
On behalf of the Plaintiff (hereinafter referred to as the respondent) these two issues were identified as calling for determination:-
“(1) Whether or not the issue of alleged infringement of Order 23 rules 1 – 4 of the Kano State High Court (Civil Procedure) Rules being raised by the Appellant is competent and bonafide in this appeal and whether appellant was denied a fair hearing by the lower court on same.
(2) Whether or not in the circumstances of this case the lower court was in error in resolving against the Appellant the issues canvassed by him and as reflected in the record as constituting a defence on the merits to the plaintiff’s claim and is entering judgment against the appellant.”
At the hearing of appeal briefs of argument were adopted and relied upon. Learned counsel for appellant elaborated upon his own brief of argument.
Before returning to make a few observations on the appellant’s formulations, it is respectfully observed that issue 1 in the respondent’s identification of issues is not open to it. It is not open to the respondent because examination of the appellant’s grounds of appeal does not disclose a ground capable of giving rise to that issue. It is settled law which does not require citing of authority that it is not permissible to canvass and tender argument on an issue having no bearing with any of the grounds of appeal; but if one is required see African Petroleum Limited v. Owodunni (1991) 8 NWLR (Pt.210) 391, 423. There is no evidence on the record that the respondent cross-appealed in the result respondent’s issue 1 be and is hereby struck out by me.
Appellant’s issue 2 is substantially a variant of his issue 1. I am strengthened in this view by the learned counsel for appellant, at the hearing of the appeal, elucidating on both issues together. The two issues to avoid duplicity could conveniently, and without prejudice to either party, be taken together under appellants issue 1. Furthermore issue 1 is related to grounds (i), (ii) and (ix) of the grounds of appeal while issue 2 is alleged to be framed from grounds (iii), (iv), (viii) and (ix) of the grounds of appeal. It follows that if the two issues are canvassed and argument tendered in support thereof separately appellant would be unduly privileged by canvassing and arguing grounds (ix) of the grounds of appeal twice which ground might have failed and dismissed or succeeded and allowed under issue 1. Respectfully the appellant has no right, constitutional or otherwise, to canvass and tender argument in respect of the same ground of appeal twice.
Ground (v) of the grounds of appeal is not related to any of the issues canvassed in the appellant’s brief and is deemed abandoned: Odiase & Another v. Agho & others (1973) 11 SC 71, 76. It cannot be returned to. It is for that reason struck out.
Grounds (vi) and (vii) which are respectively related to issues 3 and 4 are respectfully incompetent. The appellant as observed earlier gave a notice of his intention to rely on preliminary objection at the trial court contending that there was no application filed nor an order of court made entering the suit for hearing under the undefended list, that it was a registrar and not a judge that marked the writ and that the appellant had not complied with Order 23 rule 2 requiring the Registrar to annex a copy of Order 23 of the Rules of court to the writ of summons. The application was taken and struck out on 7th June 2000. Being an interlocutory decision, in respect of which appellant felt aggrieved, the learned counsel for appellant has within 15 days from the date of the said ruling to appeal against it by virtue of section 25(2)(a) of the Court of Appeal Act Cap 75 of the Laws of the Federation of Nigeria, 1990.
Where leave is required before the appeal is brought, both leave must be sought and appeal brought within the said 15 days. See Bewaje v. Adediwura (1976) 6 SC 143. The appellant failed to do this until sometime in November, 2000, if his notice of appeal, dated 8th November 2000, is anything to go by, more than five months after the ruling had been delivered.
A ground of appeal attacking a specific interlocutory ruling of the trial court against which there was no appeal within the time prescribed nor extension of time sought and obtained is incompetent and should be and is struck out: See Kamoru Aiye Tijjani v. Samsudeen Akinwanmi (1990) 1 NWLR (Pt.125) 237; Seven-Up Bottling Company Ltd v. Yahaya (2001) 4 NWLR (Pt.702) 47 and Supreme Court decision in Igbinoghodua Ogigie & others v. A.I. Obiyan (1997) 54 LRCN 2631, (1997) 10 SCNJ 1, (1997)10 NWLR (Pt.524) 179.
Inspite of the contention of the learned counsel for the appellant in the notice of preliminary objection, there are, contrary to his contention, a copy of Order 23 attached to the writ of summons at page 16 of the record of appeal, a motion ex parte seeking leave to place the matter on the undefended list at page 17 which leave was granted by the learned trial judge on 14th April, 1999. In the circumstance, the complaint of the appellant in these grounds of appeal is purely academic an effort of a desperately drowning man who is prepared to cling to anything including a snake.
The appellant’s grouse in the remaining two issues which are to be taken together touches mainly on the respondent’s further and better affidavit, the plaintiff’s affidavit in reply to the affidavit in support of the notice of intention to defend the suit on the merit. This affidavit ought not have been permitted as, according to the learned counsel for appellant, once a stage is reached where the court or the party found the affidavits conflicting and a further affidavit had to be deposed to explaining the conflict the claim cannot be said to have been established and that the further affidavit cannot in law amend prior affidavit in support of the writ of summons deposed to on filing of the suit. Learned counsel relied on plethora of authorities. But his argument is merely adroit not candid. The question of conflicting affidavits by the respondent does not arise in the circumstance of this case. The appellant averred in paragraph 25 of the affidavit in support of intention to defend that the documents exhibited to the affidavit in support of the writ of summons are doctored as they excluded “all payments made by appellants especially on UAC Cash Receipt Nos-
No        Date       Amount
1039454    13-7-98       N3, 500.00
1039822    31-7-98       N3, 050.00
1130940    13-1-99       N150, 000.00
1130954    22-1-99       N35, 000.00
1037035    18-11-97    N15, 000.00
1037742    5-12-97       N15, 000.00
A copy each of the receipts are herewith attached as exhibits 19- 9E.”
To meet or address this gauntlet thrown by the appellant the respondent, who was incidentally the plaintiff at the trial court, deposed to a further affidavit to which the relevant pages of the ledger, in which the payments were credited to the appellant, were attached and marked as exhibit B. Exhibit C dated 10/6/99 giving summary or statement of appellant’s indebtedness after he had been credited with those amounts as well as recently made part payments and given value for stocks returned. The payments reduced appellant’s outstanding debt of N2, 936,840.00 to N2, 591,900.79. There is some arithmetical error here. Affidavit in reply is permissible but it must not be a mere contradiction on oath by the plaintiff in his further and better affidavit unsupported by some documentary evidence as an account showing the balance due or letter promising to pay: Saw v. Hakim 5 T.L.R. 72. In the instant appeal the further affidavit is supported by documentary evidence showing that the amount disputed had infact been credited to the appellant? Even then the court is not bound to insist on documentary evidence from the plaintiff if by his further affidavit he has shown that there is no defence to the claim: Shurmur v. Young 5 T.L.R. 155. The decision to accept further affidavit is a discretionary one and this Court will not intervene like in all exercise of discretion except it is wrongly exercised.
There is no substance respectfully in the contention of the learned counsel for appellant that the claim of the respondent could not be ascertained or was unascertainable because it fluctuated between N3, 936,840.00 and N2, 262,430.00. The apparent uncertainty in the indebtedness of the appellant is to the credit of the respondent. It lends credence to its claim that it credited the appellant with all the payments he made hence the various deduction or reduction in the liability of the appellant until the action was tried at the trial court. When the respondent sued the appellant, it claimed N2, 786,840.79. The sums of N2, 936,840, N2, 591,900 and N2, 269,430 were never claim before the court. While the various sums were debts owed by appellant at various stages, the sum of N2, 262,430 is the award made in the judgment of the court. The respondent at no stage, in the proceedings resulting in this appeal, claimed the other sums of money enumerated and categorized in the appellant’s brief as claim. The only sum respondent claimed in these proceeding is N2, 786,840.79. It is, therefore, improper for learned counsel for appellant to create the impression that the respondent kept on amending its claim. It is a misconception designed to mislead this court.
The court in awarding N2, 262,430.14 found it proved. It did not engage itself in an extra-judicial investigatory function by working out sum allegedly owed by a party. It confined itself to its duty of making findings from the evidence tendered before it. The decision is, therefore, unwholesome. But, if it were, the appellant is not entitled to complaint because it is a finding made in his favour. Reduction of respondent’s claim from N2, 786,840.14 to N2, 262,430.14 awarded against appellant could not be taken as a decision which aggrieved the appellant.
It is a decision which prejudiced the respondent who were thereby aggrieved and could have appealed against it. The learned trial judge, having in his judgment said:-
“Paragraph 3(b) of the plaintiff’s further and better affidavit stated that all the payments made by the defendant as contained in paragraph 25 of the affidavit in support of the notice of intention to defend were duly entered into the defendant’s personal record book with the plaintiff and duly stamped, copies of which were duly served sent to the defendant Exhibit B are copies of the said record book of the defendant’s account. The said Exhibit B has not been challenged by the defendant and it is therefore deemed to have been admitted.”
He ought to have given judgment for the sum claimed. Appellant seems contented with this crucial finding that all his payments were duly entered into his personal record book or accounted for because he did not appeal it. The learned trial judge, after finding that the affidavit in support of the notice of intention to defend has not disclosed facts which would have, at least, thrown some doubt on the case of the plaintiff, ought to have entered judgment in favour of the respondent for the sum claimed. The alleged payments and value of goods returned set out in the affidavit in support of the intention to defend and alleged not to have been credited to the appellant were affirmed by lower court as having been reflected in the appellant’s account, the lower court nevertheless deducted the same sums of money, (N524, 409.86) from the respondent’s outstanding claim of N2, 591,900.97 to arrive at the judgment debt of N2, 262,430.14. This clearly shows that the learned trial judge was approbating and reprobating. This resulted in the appellant being credited with the value of the goods returned and cash payment made by him twice. That is, however, beside the point.
The crux of the matter is that appellant having requested that the suit be transferred from undefended cause to general cause list to enable him show that he had made some payments and returned some goods to the value of N524, 409.86 and the same amount was taken cognizance of in the judgment is there any further need to transfer the case to the general cause list except an opportunity offered to the appellant to delay and trick the respondent out of a judgment it well deserved and thereby postpone his obligation to the respondent: Nighizawa v. Jethwani Ltd (1984) 12 SC 234.
The submission of the learned counsel for appellant that the documents comprise in exhibit B are not signed and that in order to prove the claim the invoice of supply of goods are vital document to back up the entries in the record of account of the appellant pegged on S.38 of the Evidence Act Cap 112 is misconceived. Firstly exhibits marked B are photographic copies of ledgers which are never customarily signed. Secondly those documents were not produced in evidence to charge appellant with liability rather they were produced to show that payments made by the appellant were duly entered in his record of account. Section 38 of the Evidence Act reads as follows:-
“38. Entries in books of account regularly kept in the course of business are relevant wherever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability.” (underlining mine)
The documents no doubt are relevant. But they were not put in evidence as basis of the appellant’s claim rather they were produced to show that payments made have been duly accounted for. It is equally common knowledge that when payments are made, receipts are issued in acknowledgment and not invoices. The respondent, in the circumstance, would have no burden to produce invoices in support of those entries. The position would have been different if the respondent had sought to show or establish that the items contained in exhibits B were issue to the appellant and was therefore liable to their various values. But in the instant case, the appellant had accepted liability for the goods but postulated that he had also made payments in respect of them which payments had not been accounted for. The respondent to debunk appellant’s assertion produced the documents contained in exhibit B to show that the appellant had been duly credited.
There is equally no merit in the appellant’s contention that Exhibit C. is inadmissible on the strength of Section 91(3) of Evidence Act Cap 112 of the Laws of the Federation of Nigeria,1990 on account that it is a statement made by a person interested at a time when a proceedings were pending involving dispute in fact which the document tend to establish. It seems to me that appellant is in a state of confusion because the document he is seeking its expunction credits him with N344, 949.21. The respondent who caused Exhibit C. to be issued is truly a person interested at a time when proceedings were contemplated or pending involving a dispute in fact but this document does not seek or tend to establish that fact. It merely gives credit of N344, 939.21, being value of goods returned and payment made by the appellant since the commencement of the action. The document, is, therefore, seeking to proof a fact which is in the interest of the appellant and not in favour of the respondent the maker, a development which arose after the institution of the action.
Moreover, the appellant made certain payments and returned some unsold goods after the action had been instituted. The only way to account for the various sums of money including the value for the goods returned is to prepare an account whereby the payment are set off against the claim otherwise the appellant would not get credit for the payment he made after the action had been brought. If he made payment which must be accounted for after the bringing of the action commonsense demands that a statement of account would be prepared to reflect the recently made payments during the pendency of the action. This is a situation whereby the appellant would be prejudiced if we concede to legalism of his learned counsel because the sum of N344,939 credited to him in exhibit C would be wiped out on the ground that the evidence is inadmissible under the provisions of Section 91(3) of the Evidence Act Cap 112.
It is my respectful view that the learned counsel for appellant is making a mountain out of a mole hill of exhibit C. Paragraphs 3(d) and (f) of the further affidavit reads as follows:-
“(d) that the current statement of the defendant’s account as at 16/6/95 stood at N2, 591,900.79 a copy of which has been sent to the defendant’s attached herewith and marked exhibit C is a copy of the said statement.
(f) That the sum of N2, 591,900.79 is the balance outstanding from the sum of N2, 786,840 claimed in the main application before this court due to payments the defendants made to the plaintiff thereafter.”
Admittedly there are some errors on Exhibit C. Instead of deducting the repayments and value for the stock returned totaling N344,939.21 from plaintiffs claim of N2, 786.840 the same was deducted from a higher figure of N2, 936,840 thus resulting in a higher balance of N2, 591,900.79. I agree that if the deductions were made from the respondent’s claim of N2, 786,840 the final figure would be far less than N2, 591,900.79 indeed it would have been N2, 341,900.79 which, in any case, is still higher than N2, 262,430.14 awarded against the appellant. It follows that, if there were any arithmetical error,the effect had been off set by the learned trial judge, at the instance of the respondent’s counsel, who apparently out of frustration to get over the matter crediting the appellant with a further sum of N524, 409.86 after he had found that all the payments made by appellant had been credited to his account. There is therefore no miscarriage of justice.
Learned counsel for appellant raised some other petty questions such as payment of some N188, 050.00 and also that the learned counsel for respondent, before the action was brought, demanded N2, 706,841 and not N2, 786,840.00 which was eventually sued for.
These mundane contention can only avail appellant if his learned counsel could show that it would drive down the judgment debt below N2, 262,430 otherwise they are mere moot questions which are not for court to answer. In any case, when did letter of demand become the yard stick for measuring liability? If the plaintiff claims in his writ of summons more than he demanded in the extra judicial correspondence exchanged by the parties before the action was brought and successfully establishes that claim the court will not tie him down to the demand letter which is not the claim before it. Further disclosures after the letter might have been written may warrant taking out a writ of summons for a higher sum of money than was demanded.
Learned counsel for appellant also contended that refunds his client made was more than N524, 409.98 accepted by the court. He placed it at N1, 004,761.21 arising from paragraphs 11, 12, 13, 14, 18, 21, 25 of the affidavit in support of the notice of intention to defend. It seems to me that the learned counsel in his bid to succeed in the appeal is prepared to throw in anything by recycling arguments. In paragraph 11 of the said affidavit he deposed that he returned stock worth N79, 587.86. But for returning the same goods the respondent credited him with almost double of that amount, that is N153, 389.21. He also alleged that he made some payments some of these allegations are not substantiated because the receipts he tendered in support comes to a mere N337, 472.30. Some of this receipt for inexplicable reasons have been cancelled or duplicated. The amount averred to in paragraph 25 of the said affidavit had been adequately taken care of by exhibit B attached to the further and better affidavits which had been discussed elsewhere in this judgment. The averments contained in paragraph 12 whereby the appellant credited himself with N364, 822.00 as price of goods carted away by some miscreants is incredible and an after-thought. He failed to report the incident, commission of crime, to the police. The appellant solicitors’ letter at page 40 dated 28 October 19- (sic) of the record of appeal that the invasion was staged on unknown customers of the appellant but in paragraph 12 of the affidavit it was averred that the same goods belong to appellant. This contradiction is material, vital and deals a fatal blow to the appellant’s case. If the unmarked document attached to the affidavit in support of notice of intention to defend is earlier in time, it must have been made when the matter was fresh in the appellant’s memory. It therefore represent the correct version than the one stated in a solemn oath in paragraph 12 of the affidavit some months later. If the goods stolen belong to appellant’s faceless customers why is he seeking to be given credit for those goods which are not his but, on his own showing, property of his own customers. To succeed on a charge of crime the proof is beyond reasonable doubt which burden has not been discharged. Exhibit B series are part of the ledger debunking the appellant’s claim that some payments made by him were not credited to his account and not the whole ledger. It therefore limits itself to answering the averments in paragraphs 25 of the affidavit. One of the pages thereof showing a balance of N1, 387,812.94 is not therefore conclusive of the appellant’s liability.
The totality of the averments contained in the three affidavits in this case as well as the documents exhibited thereto respectfully show that appellant, which admitted and pleaded for time to settle his liability, was never in doubt of the respondents claim. Apart from the feeble denial at paragraph 2 of page 40 of the record of appeal. I am strengthened in this view by paragraph 8 of the affidavit in support of the notice of intention to defend which shows that there was a demand of N3, 435,921.11 on the appellant. It is, therefore, an idle talk the contention of the learned counsel for appellant that the respondent never made a demand of a specific sum on the appellant. The same appellant admitted that there was once a demand of N2, 706,841 on him. Is there better evidence than one that proceeds from the mouth or oath of the appellant? This is an admission against interest.
It is an elementary principle of law which no longer requires citing of authority that, in civil cases, what is admitted needs no further proof. See section 75 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria 1990 and the case of Owosho v. Dada (1984) 7 SC 149, 163-4; National Bank of Nigeria Ltd vs. P.B. Olatunde (1994) 3 NWLR (Pt.334) 512, 526 and Seismograph Service Nigeria Ltd v. Chief Keke Ogbenelave Evaufe (1976) 9-10 SC 135, 146 and Bello v. Eweka (1981) 1 SC 101, 118.
I resolve the two issues against the appellant and all the grounds of appeal related to them fail and are dismissed by me. By the same token the appeal fails and it is dismissed with costs assessed at N5, 000.00 to the respondent.

RABIU DANLAMI MUHAMMAD, J.C.A: I had a preview of the judgment just delivered by my learned brother Salami JCA. I am in complete agreement with his reasoning and conclusion. I agree the appeal lacks merit and is dismissed by me. I abide by all the consequential orders made in the leading judgment including the order as to costs.

MAHMUD MOHAMMED, J.C.A: The judgment of my learned brother Salami JCA which he has just been delivered was read by me before today. I entirely agree with his reasoning and conclusion in resolving all the issues canvassed resulting in the dismissal of the appeal. I therefore adopt the judgment as mine and as such, I have nothing, to add.
Consequently this appeal shall be and is hereby dismissed with N5000.00 costs to the respondent.








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