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ALIYU & ORS v. YOLA & ORS (2022)

ALIYU & ORS v. YOLA & ORS

(2022)LCN/16188(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, February 24, 2022

CA/K/278/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. ALHAJI MUSA ALIYU 2. MUSA ALIYU MOTORS NIGERIA LIMITED 3. MAM CONSTRUCTION SERVICES LIMITED APPELANT(S)

And

1. NURA GARBA YOLA 2. NASIRU GARBA YOLA 3. HABIB SULE YARI 4. ADO MOHAMMED 5. BUA SUGAR REFINERY LIMITED 6. BUA FLOUR MILLS LIMITED 7. BUA INTERNATIONAL LIMITED RESPONDENT(S)

 

RATIO

DEFINITION OF “FRAUD”

Black’s Law Dictionary Abridged 5th Edition defines FRAUD as “An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal fight. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceive another so that he can act upon it to his legal injury. Any kind of artifice employed by one person to deceive another. Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.” See also NTUKS Vs. NPA (2007) 13 NWLR (Pt. 1051) 392. PER MUSALE, J.C.A.

WHETHER OR NOT A PERSON ALLEGING FRAUD MUST IN THE PLEADINGS SET OUT PARTICULARS OF FACT ESTABLISHING THE ALLEGED FRAUD

A person alleging fraud is not only required to make the allegation in his pleadings but must in the pleadings set out particulars of fact establishing the alleged fraud prima facie. See BESSOY LTD Vs. HONEY LEGON (NIG) LTD & ANR (2008) LPELR-8329 -(CA). PER MUSALE, J.C.A.

DEFINITION OF “NEGLIGENCE”

Negligence on the other hand, is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. See Black’s Law Dictionary, 7th Ed. Judicially, it is the failure to exercise that care, which the circumstances demand; and what amounts to negligence depends on the facts of each case.” See SALAKO Vs. STATE (2007) LPELR 4569-(CA). 
PER MUSALE, J.C.A.

THE TEST ON WHETHER AN ACT AMOUNTS TO NEGLIGENCE

The determination of what amounts to negligence is fluid, and that fluidity has to be applied to diverse conditions; but having said that the ordinary case of negligence, which does not involve any special skill simply means, omission or failure on the part of one, to do something, or omit to do that, which a reasonable man, under similar circumstances would do or that which a reasonable man in the same circumstance would not do. If that failure results in injury then there is a cause of action. 

The test on whether an act amounts to professional negligence on the other hand is that of standard of the ordinary skilled man, exercising and professing to have that special skill. See ABI Vs. CBN & ORS LPELR – 4192 (CA). The general concept of reasonable foresight is the criterion of negligence; in other words, negligence is not established by proving that the loss sustained by the plaintiff might have possibly, and with extra-ordinary foresight and prudence, been avoided by the defendant/appellant. See U.T.B. (NIG.) Vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 at 488.

In an action for negligence, a plaintiff can only succeed if in addition to pleading it and particulars thereof, he or she must also show the duty of care owed to him or her by the defendant and the breach of that duty by the defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial. In the case of ANYAH Vs. IMO CONCORDE HOTELS LTD & 2 ORS (2002) 18 NWLR (Pt.799) 377, this Court inter alia held: –
“For the defendant to be liable for negligence, there must be either an admission by him or sufficient evidence adduced to a finding of negligence on his part.”
The Court went further to hold that the most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. See BENSON Vs. OTUBOR (1975) 3 SC 19, OKOLI Vs. NWAGU (1960) SCNLR 48; (1960) 3 FSC 16, NIGERIA AIRWAYS LTD Vs. ABE (1988) 4 NWLR (Pt. 90) 524 AND STRABAG CONSTRUCTION (NIG) LTD Vs. OGARAKPE (1991) 1 NWLR (Pt. 170) 733.
PER MUSALE, J.C.A.

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kano State delivered in Suit No. K/143/2015 by Hon. Justice A.T. Badamasi on the 27th February, 2019.

The Plaintiffs/Appellants in their amended statement of claim prayed from the trial Court the following reliefs against the Defendants/Respondents:
i. A DECLARATION that the acts of the Defendants in the transactions giving rise to this suit amount to misrepresentation and fraud.
ii. A DECLARATION that the 5th, 6th, and 7th Defendants acted negligently in the transactions giving rise to this suit when they supplied and delivered goods due to the plaintiffs to the 1st, 2nd, 3rd and 4th Defendants without the consent and authority of the Plaintiffs.
iii. AN ORDER of this Honourable Court directing the Defendants to refund to the 2nd and 3rd Plaintiffs the sum of N90,000,000.00 (Ninety Million Naira) they paid for the remaining 30 trucks of sugar paid for in the 70 trucks award allocation, but which supply and delivery was not made to them by the Defendants.
​iv. AN ORDER of this Honourable Court directing the Defendants to refund to the 3rd plaintiff the sum of N58,550,000 (Fifty-Eight Million Five Hundred and Fifty Thousand Naira) being the value of the 37 trucks of spaghetti it had paid for but which the Defendants failed to supply to it.
v. AN ORDER of this Honourable Court directing the Defendants to refund to the 3rd Plaintiff the sum of N50,000,000.00 (Fifty Million Naira) it had paid as part payment/initial deposit for 150 trucks of sugar but which the Defendants failed to supply to it.
vi. AN ORDER of this Honourable Court directing the Defendants to refund to the 2nd and 3rd Plaintiffs the sum of N30,600,000.00 (Thirty Million, Six Hundred Thousand Naira) they had paid for the supply of 30 trucks of wheat opal but which the Defendants failed to supply to them.
vii. AN ORDER of this Honourable Court directing the 3rd and 4th Defendants to refund to the 3rd Plaintiff the sum of $25,250 or the Naira equivalent it had paid for the facilitation of the award of contract by the 7th Defendant for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
viii. AN ORDER of this Honourable Court directing the 3rd and 4th Defendants to refund to the 3rd Plaintiff the sum of N5,000,000 (Five Million Naira) it had paid for the facilitation of the award of contract by the 7th Defendant for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
ix. AN ORDER of this Honourable Court directing the 1st, 2nd 3rd and 4th Defendants to refund to the Plaintiffs the sum of N14,570,000 paid to Sensitive Links Nig. Ltd as performance Insurance bond which turned out to be fraudulent.
x. AN ORDER for general damages against the defendants jointly and severally in the sum of N500,000,000.00 (Five Hundred Million Naira).
xi. AN ORDER that Interest on the above sums be paid by the defendants to the Plaintiffs at the rate of 21% per annum from 17th February, 2014, till the date judgment is delivered and thereafter at the rate of 10% per annum till the date of final liquidation.
xii. Cost of this action in the sum of N5,000,000.00 (Five Million Naira)
See pages 778-779 of the record of appeal.

As borne out of the Respondent’s brief of argument as it were revealed from the pleadings, the genesis of the relationship between the Appellants and the 5th, 6th and 7th Respondents was contractual. The contract relates to purchase and delivery of goods traded by the 5th, 6th and 7th Respondents. However, the claim as framed by the Appellants was premised on alleged “misrepresentation and fraud” and “negligence” on the part of the 5th, 6th and 7th Respondents. It was contended that acting fraudulently (with the 1st to 4th Respondents), or negligently, they delivered goods meant for the Appellants to the 1st- 4th Respondents. This is contained in Paragraph 98 of the Amended Statement of Claim on page 695 of the Record of Appeal.

As revealed in the pleadings, there is no dispute on payments and/or the supply of the goods in question. The only question appears to be whether the goods were fraudulently or negligently diverted and supplied to the wrong parties in collusion with the 5th, 6th and 7th Respondents. The position of the Appellants is that, all payments for the goods they made but were never supplied remained outstanding. The 5th-7th Respondents countered and pleaded that while they actually received those payments, the goods were duly supplied to the 1st Respondent who impersonated the 1st Appellant and presented himself to the 5th-7th Respondents as the 1st Appellant.

The 5th, 6th and 7th Respondents are related companies with headquarters in Lagos. They are part of a large business conglomerate operating throughout Nigeria. They are in the business of manufacturing, importing and sale of sugar, flour, spaghetti, and other commodities throughout Nigeria.

The transactions which became a subject of this dispute started sometimes in 2013 and ended in 2014. The claim is based on purported contract of award letters for products of the 5th, 6th and 7th Respondents presented to the 1st Appellant at different times in 2014 by the 1st and 2nd Respondents. (Exhibits B, D, E, E5, and G in the Record). See pages 1088-1093, 1477 and 1482-1486 of the record of appeal. The Exhibits were for the allocation of 30 trucks of sugar worth N94,500,000 (Ninety-four million five hundred Naira) and ten trucks of spaghetti worth N55,500,000.00 (Fifty-five million five hundred Naira). All were said to have been issued in the name of the 1st Respondent.

According to the counsel to the 5th to 7th Respondents relying on the evidence before the trial Court that the 1st, 2nd, 3rd and 4th Respondents are a syndicate who defrauded the Appellants. He referred to paragraph 7 of the Additional Statement on Oath of Alhaji Musa Aliyu on page 698 of the Record of Appeal. The scheme of the fraudsters (1st to 4th Respondents) was clear. The 1st Respondent and his brother, the 2nd Respondent posed as facilitators for potential business opportunities between the Plaintiffs and the 5th, 6th and 7th Respondents. They presented to the Plaintiffs, the 3rd and 4th Respondents as officials (Executive Director Sales and Marketing and Chief Accountant respectively) of the 5th, 6th and 7th Respondents. The 1st and 2nd Respondents convened fictitious meetings with the Plaintiffs in Abuja at Peniel Apartment (a residential hotel) at Wuse, Abuja where the 3rd and 4th Respondents presented themselves as officials of the 5th, 6th and 7th Respondents. They also arranged false visits to the 5th, 6th and 7th Respondents Headquarters in Lagos. After gaining the confidence of the Plaintiffs, the 1st to 4th Respondents proceeded to execute their fraudulent scheme against the Plaintiffs/Appellants by diverting goods purchased by the Plaintiffs from the 5th, 6th and 7th Respondents.

The Appellants case at the High Court was that the officials of the 5th, 6th and 7th Respondents were part of the scheme who defrauded them and therefore the 5th, 6th and 7th Respondents were liable for their losses. In the alternative, the 5th, 6th and 7th Respondents were liable in negligence for not being able to act with ‘due diligence’ to ensure that the goods purchased by the Plaintiffs reached their appropriate destinations.

In their defence before the trial Court, the 5th, 6th and 7th Respondents denied the Appellants’ claims. The 5th, 6th and 7th contended that they had supplied and delivered the correct and actual goods paid for by the Appellants. (Exhibits 0, 01 001 on the Record) See pages 1092, 1297 of the Record of Appeal.

From their pleadings, the 5th, 6th and 7th Respondents maintained consistently that they did not know the 1st to 4th Respondents. They were not their facilitators and had no authority whatsoever to act on behalf of the 5th, 6th and 7th Respondents. It was contended that the 1st Respondent from the outset of the transaction presented himself to the 5th, 6th and 7th Respondents as Alhaji Musa Aliyu (the 1st Appellant). He took virtually all the deliveries on basis of ‘self-collection’ at the 5th, 6th and 7th Respondents’ warehouses with the risk in the goods passing to the buyer or buyer’s agent at the point of delivery. Only four deliveries were made by ‘corporate delivery’, that is delivery made by the 5th, 6th and 7th Respondents to a place designated by the buyer. The 5th, 6th and 7th Respondents maintain that there were no outstanding deliveries due to the Appellants.

The 5th, 6th and 7th Respondents also denied that any of their staff participated or attended any meeting at Peniel Apartments in Abuja to discuss any issue relating to award letters, price or products of the 5th, 6th and 7th Respondents. They also denied allocating trucks of spaghetti or wheat offal to the 1st Respondent. They maintained also that they did not issue letters for the purchase of their products. That 5th, 6th and 7th Respondents transacts and relates with all their customers at the head office in Lagos. The 5th, 6th and 7th Respondents contended that the transaction subject of dispute took place in the Lagos office and they did not issue receipts for goods purchased in Lagos except at the request of the customer. They stated that the Appellants did not make such request. On this basis the 5th, 6th and 7th Respondents denied issuing Exhibits E, and E2 as contained on pages 1477 and 1479 of the Record of Appeal. The 5th – 7th Respondents also contended that they did not supply or engage in contract for supply of Howo Trucks. The business of the 5th -7th Respondents is the production and sale of Sugar, spaghetti, flour and wheat opal. The 5th, 6th and 7th Respondents again denied receiving Exhibits E3, E7, E6, C, C1, C2, E1 and E4 in the Record. See pages 1480, 1481, 1483, 1484 and 1089-1093 of the Record of Appeal. Finally, the 5th, 6th and 7th Respondents denied acting negligently or in breach of any duty of care owed to the Appellants.

In proving their case before the trial Court, the Appellants called five witnesses out of which three were subpoenaed witnesses. The witnesses called by the Appellants are the following:
Elijah Akanni (PW1). He represented the Branch Managers of Zenith Bank Plc, Bello Road and Gwarzo, Kano Branches. He appeared in Court pursuant to subpoena which were issued and served on the Branch Managers of Zenith Bank Plc, Bello Road, Kano and Gwarzo, Kano Branches respectively and he produced and laid before the Court 16 (sixteen) original cheques. After the cheques were laid before the Court, PW1 was discharged. See pages 156-157 of the record of appeal.

Another subpoenaed witness, Yusuf Usman (PW2) was called. He appeared in Court as a representative of the Branch Manager of Unity Bank Plc, Ibrahim Taiwo Road, Kano Branch. He appeared and laid before the Court 2 (two) original cheques. The witness was discharged after the cheques were laid before the Court. See pages 157-158 of the record of appeal).

The next witness, Sergeant Mathew Tyondun appeared consequent upon subpoena decus tecum and ad testificandum that was served on him. He produced and tendered the certified true copies of the statement of Ibrahim Abubakar Yaro (DW3) dated 30 June, 2015, 15 September, 2015 and 22 July, 2016 respectively. The documents were admitted in evidence without objection and marked Exhibits A, A1 and A2 respectively. PW3 was cross-examined and discharged in the absence of any re-examination.

See pages 158-160 of the record of appeal.

On 23rd January, 2018, Salisu Musa (PW4) started giving evidence in the case. He adopted his Additional Witness Statement on Oath and 2nd Additional Witness Statement on Oath filed on 31 July, 2017 and 19 October, 2017 respectively. Through him, various correspondences and some receipts were tendered in evidence and marked Exhibits B, C, C1, C2, D, E1, E2, E3, E4, E5, E6, E7 and E8. See pages 161-170 of the record of appeal.

On 6th March, 2018, Alhaji Musa Aliyu (PW5) commenced his testimony by adopting his Additional Witness Statement on Oath deposed to on 31st July, 2017. The eighteen cheques produced in Court by PW1 and PW2 were shown to him and he duly identified them pursuant to which the cheques were formally tendered. In the absence of any objection, the cheques were admitted in evidence and marked Exhibits F-F17. Through PW5, Exhibits G, H, H 1 and J, were equally tendered in evidence. PW5 was cross-examined and in the absence of any re-examination, he was discharged and the case was adjourned to 18th April, 2018 for defence. See pages 171-176 of the record of appeal.

On 5th June, 2018, the 5th -7th Respondents opened their defence by calling Abiodun Kelani (DW1). He adopted his Witness Statement on Oath and Additional Witness Statement on oath filed on 16th August, 2017 and 28th May, 2018 respectively. He equally tendered Exhibits DA, DB, DC, DD and DD1 in evidence. He was cross-examined and in the absence of any re-examination, he was discharged. See pages 178-184 of the record of appeal.

The 5th -7th Respondents equally called one Isa Solomon (DW2) a civil servant and staff of the High Court of the Federal Capital Territory, Abuja. He appeared pursuant to subpoena decus tecum and produced the document marked Exhibits DE, DE1, DE2, DE2, DE3 and DE4. The witness was discharged and the suit was adjourned to 16 July, 2018 for continuation of defence. See pages 185-186 of the record of appeal.

On 16th July, 2018, the 5th-7th Respondents called Alhaji Ibrahim Abubakar Yaro (DW3) and he adopted his witness statement on oath filed on 16 August, 2017. They equally made and tendered his specimen signature in evidence and it was admitted in evidence as Exhibit DF. He was cross-examined and in the absence of any re-examination, he was discharged. 

The case was thereafter adjourned to 25th July, 2018 for defence by the 1st – 4th Respondents. See pages 186-193 of the record of appeal.

The 1st – 4th Respondents who initially appeared through their counsel after the originating processes were served on them ceased from appearing in the case after the demise of their counsel. Since then, all the hearing notices and other processes in the case were constantly served on them, but they did not appear again in the case. On 25th July, 2018, they did not appear for their defence notwithstanding that they were served with hearing notice in the case. Appellants’ counsel applied for their case to be foreclosed from defending the case and the application was granted. See pages 194-195 0f the record of appeal.

On 3rd December, 2018, parties adopted their respective final addresses and the case was adjourned to 24th January, 2019 for judgment. See pages 196-198 of the record of appeal. Judgment in the case could not be delivered on 24th January, 2019. On 27th February, 2019, the Court delivered its judgment wherein it granted part of the Appellants’ claims and dismissed the rest. See pages 1502-1532 of the record of appeal. Aggrieved with the judgment of the trial Court, the Appellants filed a Notice of Appeal on 14th March, 2019, containing eleven grounds of appeal. The grounds and their particulars are contained on pages 1533-1549 0f the record of appeal. The Appellant sought an order from the Court for the following:
1. an order of the Court of Appeal allowing this appeal
2. an order of the Court of Appeal granting all the reliefs contained in Appellants’ Amended Statement of Claim dated and filed on 31 July, 2017.
See page 1548 of the record of appeal.

Upon the compilation and transmission of the record of appeal, parties filed and exchanged their respective briefs of argument in accordance with the Rules of Court. The Appellant brief of argument was settled by Francis Chukwudi Ani Esq., and was filed on 23rd/5/2019. While the 5th, 6th, and 7th Respondent’s brief of argument was settled by Oseni Sefiullahi Esq. On the part of 1st-4th Respondents, no brief was filed on their behalf. The appeal will therefore be determined on the basis of the Appellants’ brief as well as 5th – 7th Respondents’ brief of argument.

From his eleven grounds of appeal, learned counsel to the Appellant distilled three issues for determination, to wit:
1. Whether the learned trial judge was right when he held that the Appellants were not able to prove negligence, fraud and conversion of their orders from Spaghetti and Wheat Opal to Sugar against the 5th-7th Respondents. (Distilled from grounds 2, 3, 4, 5, 6 & 7 of the Notice of Appeal).
2. Whether the learned trial judge was right when he held that the 1st Respondent impersonated the 1st Appellant and made all the payments in the transactions and on those bases, proceeded to dismiss all the Appellants’ claims against the 5th-7th Respondents. (Distilled from grounds 1,8, 10 & 11 of the Notice of Appeal).
3. Whether the learned trial judge was right when he held that the actual quantity of the Appellants’ goods not supplied could not be ascertained from the pleadings and evidence adduced in the case. (Distilled from ground 9 of the Notice of Appeal).

On his part, learned counsel to the 5th -7th Respondents in their brief of argument formulated three issues for determination as follows:
i. Whether the learned trial judge was right in holding that the Appellants failed to establish the allegation of fraudulent misrepresentation against the 5th, 6th and 7th Respondents.
ii. Whether the trial learned judge was right when he held that the Appellants have failed to establish negligence on the part of the 5th, 6th and 7th Respondents concerning the delivery of the goods purchased by the Appellant?
iii. Whether the learned trial judge was right in holding that the actual quantity goods not supplied to the Plaintiffs (Appellants) could not be ascertained from the pleadings and evidence adduced.

In determining this appeal, I will adopt the Appellants’ issues for being similar with the Respondents’ issues. In doing so, issues one and two will be treated together, while issue three will be taken separately, thus: In arguing these issues, learned counsel to the Appellant pointed out the areas where there is no dispute between the Appellants and the 5th – 7th Respondents to wit that:
i. The Appellants were customers of the 5th-7th Respondents;
ii. The Appellants at various times paid various sums of money into the accounts of the 5th – 7th Respondents for the supply of various trucks of sugar, spaghetti and wheat opal.
iii. From the records of the 5th – 7th Respondents all the goods which the Appellants paid for but did not receive were supplied to the 1st Respondent by the 5th- 7th Respondents.

Counsel submitted that the point of disagreement between the Appellants and the 5th – 7th Respondents is the identity of the person to whom the 5th – 7th Respondents supplied/released the Appellants’ goods. He referred to paragraph 1.03 of the 5th – 7th Respondents’ final written address at the trial Court on page 945 of the record of appeal and the findings made by the trial Court on page 1521 of the record of appeal. Counsel also referred to Exhibits F – F17 that showed all the payment in issue were made through the cheques of either the 2nd or 3rd Appellants directly into the corporate account of the 5th – 7th Respondents. Counsel also referred to the evidence of DW3 where he admitted under cross–examination that all the monies were paid into the account of the 5th – 6th Respondents. He submitted that facts admitted need no further proof. He relied on the case of IROAGBARA Vs. UFOMADU (2009) 11 NWLR (Pt. 1153) 587 at 599, ITA Vs. EKPENYONG (2001) 1 NWLR (Pt. 695) 587 at 607.

On the Identity of the person to whom the 5th – 7th Respondents released/supplied the goods paid by the Appellants in which there is dispute between the parties, it was submitted by the Appellants that the 5th – 7th Respondents presented inconsistent, contradictory and discordant positions on the point. He submitted that in paragraphs 34 and 42 of the 5th – 7th Respondents joint amended statement of defence, it was pleaded that all the goods paid for by the Appellants had been supplied but they failed to mention to whom the goods were supplied. Counsel referred to pages 824 and 827 of the record of appeal. Counsel continued that the 5th – 7th Respondents in paragraphs 35 and 49 of their joint statement of defence, stated that all the goods were supplied to the Appellants. However, in paragraphs 46, 55, 66, and 68 of the 5th – 7th Respondents joint statement of defence, it was pleaded that the goods were supplied to the 1st Respondent.

It was further submitted that the 5th – 7th Respondents supplied the Appellants’ goods to the 1st Respondent on the purported letter of authority presented by the 1st Respondent wherein the signature of the 1st Appellant was forged. Counsel submitted that though the 5th – 7th Respondents admitted releasing the goods paid by the Appellants to the 1st Respondent on the purported forged letter of authority, that the failure to produce the purported letter of authority amounts to withholding vital evidence and to further presume that had the 5th – 7th Respondents produced the document, if would have become manifestly clear that the 1st Appellant did not sign it and the 5th – 7th Respondents acted in absolute bad faith in relying on the letter to allegedly supply the Appellants’ goods to the 1st Respondent, or that the letter does not even exist. He referred to Section 167 (d) of the Evidence Act, 2011 and NIGERIAN ADVERTISING SERVICES LTD & ANR Vs. U.B.A PLC & ANR (2005) 14 NWLR (Pt. 945) 421 at 437.

It was further submitted that based on the evidence of DW3 and DW1, the finding of the learned trial judge was not justified when he held that the Appellant did not prove fraud against the 5th – 7th Respondents. Counsel also referred to evidence of PW4 and PW5 to the effect that 1st – 4th Respondents forged several allocations letters and caused the Appellants to pay huge sums of money to the 5th – 7th Respondents’ account.

In the same vein, learned counsel in reiterating the fraud committed against the Appellants, referred to the testimonies of PW4 and PW5 where it was established that the 3rd and 4th Respondents fraudulently misrepresented themselves to the Appellants as the Executive Director and Chief Accountant of the 5th – 7th Respondents. He contended that the 5th – 7th Respondents also in collusion with the 1st Respondent, loaded goods from the sugar refinery of the 5th Respondent for delivery to the Appellants but carefully sent the goods to Katsina. It was submitted that though DW3 admitted that some trucks were released to Katsina state but in page 1 of Exhibit A2, DW3 contradicted himself that no goods were taken to Katsina.

In further proof of the allegations of fraud against the Respondents, counsel referred to the evidence of PW4 and PW5 to the effect that the 5th – 7th Respondents allegedly received a letter of authority purported to have emanated from the Appellants but failed regarding its authenticity, for the facts that at all material times, the 5th – 7th Respondents had never seen a specimen signature and the letter head of the 1st Appellant. He referred to page 191 of the record of appeal. On the above submission, learned counsel submitted that the learned trial judge was in grave error when he held that the Appellants failed to prove fraudulent misrepresentation against the 5th – 7th Respondents. He submitted that based on Exhibits A, A1, A2, J, DB, DD, and DD1, the oral testimony of DW1 in paragraph 6, 7 and 8 of the additional witness statement, the evidence elicited from the DW3 under cross-examination and the totality of the oral evidence of PW3, PW4 and PW5, the Appellants have proved their allegations of fraud and fraudulent misrepresentation against the Respondents beyond reasonable doubt.

On the other hand, learned counsel submitted, in the alternative that the Court finds that the Appellants did not prove fraud and collusion against the Respondents beyond reasonable doubt, counsel submitted that the Appellants pleaded negligence which is a civil wrong that can be proved on the balance of probabilities. He submitted that the Appellants pleaded sufficient averments that borders on commission of civil wrongs in the pleadings which are capable by sustaining the Appellants’ claims. He referred to the case of NDOMA – EGBA Vs. A.C.B. PLC (2005) 7 SC (Pt. 111) 27 at 41 – 42, OMOBORIOWO Vs. AJASIN (1984) ALL NLR 105 at 110 and ARAB BANK LTD Vs. ROSS (1952) CBD 216 at 229. Counsel also referred to the case of FAYEMI Vs. ONI (2010) 17 NWLR (Pt. 1222) 326 at 382 – 383.

On the strength of the above authorities, counsel contended that the Appellants claim on pages 7876 – 778 pleaded negligence and that the 5th – 7th Respondents acted negligently when they acted on the purported letter of authority allegedly presented to them by the 1st Respondent and released their goods to him without verifying the authenticity of the letter which the 1st Appellant never issued.

Learned counsel submitted that a duty of care will be owed the Appellant wherever in the circumstances, it is foreseeable that if the Respondent did not exercise due care, the Appellant will be harmed. He referred to the case of HAMZA Vs. KURE (2010) 10 NWLR (Pt. 1203) 630 at 646 and IITA Vs. AMRANI (1994) 3 NWLR (Pt. 332) 296 at 311.

On whether there is proof that the conduct of the 5th – 7th Respondent was negligent, counsel referred to paragraphs 85 and 95 (iii) of the Appellants’ amended statement of claim and in evidence Exhibits F – F17 and the admission of DW3 that based on endorsement on the back of Exhibits F7, F11, F12, F13, F15 and F16, the value of the instruments were all paid into the account of the 6th Respondent. He referred to page 192 of the record of appeal. Counsel further referred to the testimony of DW3 under cross-examination on pages 192 – 193 of record of appeal to further prove negligence against the 5th – 7th Respondents. He submitted that Appellants only ordered for spaghetti and wheat opal but DW3 admitted that based on sms from the 1st Appellant, the order was changed from spaghetti and wheat opal to sugar.

It was submitted that the failure of the 5th – 7th Respondents to produce the transcripts of the purported text messages from the 1st Respondent to the 5th – 7th Respondents authorizing the latter to supply sugar instead of spaghetti and wheat opal the Appellants had paid for by virtue of Exhibits F7, F11, F12, F13, F15 and F6 is fatal to their case.

On the finding of the trial Court where it held that the 5th – 7th Respondent cannot be held liable for negligence because:
1. the Appellants have been receiving goods from the 1st Respondent until he started diverting the goods,
2. the 1st Respondent made payment into the account of the 5th-7th Respondents in the name of the 1st Appellant,
3. that the Appellants did not write any letter to the 5th-7th Respondents differentiating between the 1st Appellant and the 1st Respondent and
4. the 1st Respondent impersonated the 1st Appellant.

Learned counsel contended on the first reason that there was no place in the Appellants’ pleadings, where they admitted receiving goods from the 1st – 4th Respondents. He submitted that the contract between the Appellants and the 5th – 7th Respondents was for corporate supply/delivery of the Appellants’ goods. He opined that the 5th – 7th Respondents acted in bad faith by entering into another contract/arrangement with the 1st Respondent, unknown to the Appellants, to supply the Appellants’ goods to the 1st Respondent. He submitted that the 5th – 7th Respondent are fully liable to the full extent of the Appellants’ claims against them.

On the 2nd reason given by the trial Court, counsel stated that Exhibits F – F17, which were cheques used in making all the payments in the transaction do not support that finding. He submitted that there is no evidence before the trial Court that supported the finding of the trial Court that the 1st Respondent made any payments in the transactions in issue.

On the 3rd and 4th reasons, to wit, that the Appellants did not write any letter to the 5th – 7th Respondents differentiating between the 1st Appellant and the 1st Respondent and the 1st Respondent impersonated the 1st Appellant, counsel submitted that the 5th – 7th Respondents having admitted in their paragraphs 13, 19, 28, 33, 41, 44, 46, 50, 55, 59, 61, 64, 66, 68 of their joint statement of defence that they indeed received all the payments made by the Appellants, but that the 1st Respondent always presented to them evidence of all the payments and believing that the 1st Respondent was truly the 1st Appellant, they released all the goods in contention to the 1st Respondent, this will establish absence of denial of the Appellants’ allegations that the 5th – 7th Respondents relied on the forged letter of authority presented to them by the 1st Respondent, to allegedly release the Appellants’ goods to the 1st Respondent without verifying whether the letter actually came from the 1st Respondent.

It was contended that by Exhibits A, A1, A2, J, DB and evidence elicited by the Appellants from PW3, PW4 and PW5 and from cross–examination of DW1 and DW3 that the 5th – 7th Respondents knew whom the 1st Respondent is and that the 1st Respondent could never have successfully deceived the 5th – 7th Respondents that he was the 1st Appellant.

On Exhibit DB, counsel referred that it contains the name of the 1st Appellant as the customer and the ne amof 1st Respondent in different column as the transporter, showing that they are respectively known to the 5th – 7th Respondents. He submitted that the oral evidence of DW3 on page 190 of the record of appeal that seek to alter add to, vary or import non–existent and strange elements into Exhibit DB, must be excluded and treated as inadmissible. He referred to Section 128 (1) of the Evidence Act, OGUNDELE Vs. AGIRI (2009) 18 NWLR (Pt. 1173) 219 at 239 and NNUBIA Vs. A.G. RIVERS STATE (1999) 3 NWLR (Pt. 593) 107.

It was contended that the finding of the learned trial judge that the 1st Respondent did not impersonate the 1st Appellant were based on the following reasons:
1. that the 1st Respondent made all payments in the transactions in the name of the 1st Appellant and put his name and that of the 1st Appellant in Exhibit DB,
2. that DW3 stated under cross-examination that the 1st Respondent told them that he was the Managing Director of the 2nd and 3rd Appellants.

On the first reason, counsel submitted that there is no evidence before the trial Court to support the finding that the 1st Respondent made payments in the transaction with the name of 1st Appellant. He referred to Exhibit F – F17 and the evidence of DW3 who confirmed under cross-examination that the name of 1st Respondent was stated in Exhibits F – F17.

Contrary to the evidence of DW3 that the 1st Respondent presented evidence of payment before goods were released, it was submitted that the 5th – 7th Respondents did not tender the purported evidence of payments or tellers allegedly presented to them by the 1st Respondent. He submitted that the presumption to be drawn is that no such evidence of payment exists or was presented to the 5th – 7th Respondents by the 1st Respondent. He referred to the case of F.M.F LTD Vs. EKPO (2004) 2 NWLR (Pt. 856) 100 at 120 – 121 and ISHOLA Vs. U.B.N LTD (2005) ALL FWLR (Pt. 256) 1202 at 1213.

On the 2nd reason given by the trial Court for holding that the 1st Respondent impersonated the 1st Appellant, for the fact that the 1st Respondent told them that he was the Managing Director of the 2nd and 3rd Appellants, counsel argued that this is another evidence of negligence on the part of the 5th – 7th Respondents for lack of taking due care in ascertaining the 1st Respondent’s claim.

On whether the trial Court properly evaluated the evidence before it, counsel submitted that, the learned trial judge in evaluating evidence before him ignored the evidence of PW3 and PW4 which led him to draw improper inference from the totality of evidence before him. He also submitted that the improper evaluation of the content of Exhibit DB by the learned trial judge are perverse and have occasioned a miscarriage of justice. He urged the Court to re-evaluate the totality of evidence on record in this case. Reliance was placed on the case of F.B.N. PLC Vs. OZOKWERE (2014) 3 NWLR (Pt. 1395) 439 at 466 and KIMDEY Vs. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (Pt. 77) 445 at 459.

It was further argued that the learned trial judge was in grave error when he chose to rely on the thoroughly discredited oral evidence on oath of DW3. He submitted that where a witness gives material contradictory evidence, the Court is not at liberty to pick or choose which of the conflicting evidence to believe. That the Court must reject all his evidence in their entirely. On the strength of the above submission, counsel argued that the contradictions in the evidence of DW3 are unreconcilable. He referred to the cases of KAYILI Vs. YILBUK (2015) 7 NWLR (Pt. 1457) 26 at 77, IKPEAZU Vs. OTTI (2016) 8 NWLR (Pt. 1513) 38 at 89, DOMA Vs. INEC (2012) 13 NWLR (Pt. 1317) 297 at 322 – 323, EZEMBA Vs. IBENEME (2004)14 NWLR (Pt. 894) 617 at 654 and AYANWALE Vs. ATANDA (1988) 1 NWLR (Pt. 68) 22 at 35.

In concluding, learned counsel urged the Court to hold that the learned trial judge was wrong when he held that the Appellants did not prove fraud, negligence and conversion of their orders against the 5th – 7th Respondent. He urged the Court to resolve these issues in favour of the Appellants.

In response to the Appellants’ submission, learned counsel to the 5th – 7th Respondents denied involvement in any scheme by the 1st – 4th Respondents to defraud the Appellants. He referred to paragraphs 61 – 65 of their joint amended statement of defence on pages 831 – 832 of the record of appeal. He submitted that there was no evidence placed before the trial Court linking the 5th – 7th Respondents to any fraud. He stated that what was placed before the Court only supported the conclusion of the learned trial judge that fraud was perpetrated by the 1st – 4th Respondents.

To further exonerate the 5th – 7th Respondents concerning the allegation of fraudulent misrepresentation, counsel referred to the testimony of PW5 on pages 174, 698 of the record of appeal and the testimony of PW3 on pages 818 and 839 of the record of appeal, the totality of which revealed that the 5th – 7th Respondent did not in any way make any false statement either expressly or impliedly to the Appellant. He referred to case of DANTATA JNR Vs. MOHAMMED (2012) 14 NWLR (Pt. 1319) 122 at 162 on what constitute misrepresentation. Relying further on paragraphs 62, 63, 65 of the amended statement of defence contained on pages 831 – 832 of the record of appeal that the dealings between the Appellants and the 5th – 7th Respondents were proved beyond reasonable doubt was supported by the Supreme Court in the case of AFEGBAI Vs. A.G. EDO STATE (2001) 14 NWLR (Pt. 733) 425 at 462 that their dealings was transparent, fair and done ‘uberrimal fidei’. On what constitutes fraud, counsel referred to the case of W.A.B. LTD Vs. SAVANNAH VENTURES LTD (2002) 10 NWLR (PT. 775) 401 430. 

It was submitted that the evidence adduced by the Appellants particularly Exhibits E5, G and D are documents that established fraud only against the 1st – 4th Respondents. He stated that the documents did not link the 5th – 7th Respondents to any fraud or misrepresentation. Counsel referred to paragraphs 23, 24, 25, 32 and 40 of the amended statement of defence and paragraphs 12, 14, 15, 16 and 17 of witness statement on oath by DW1 on pages 822 – 826 and 933 of the record of appeal that the 5th – 7th Respondents vehemently denied those documents and the Appellants together with 1st – 4th Respondent have not rebutted the 5th – 7th Respondents denial of those Exhibits.

On the 5th – 7th Respondents’ dealing with the 1st Respondent, counsel referred to paragraphs 4 & 13 of the statement of defence on page 817 of the record of appeal and Exhibits DE1, A, A1 and A2 that the 1st Respondent did represent himself to the 5th – 7th Respondents as the 1st Appellant on this note, counsel referred to the case of EZENWA Vs. K.S.H.S.M.B (2011) 9 NWLR (Pt. 1251) 89 at 99 to the effect that documents can be read together in resolving dispute.

On the claim of goods supplied by the 5th – 7th Respondents, counsel submitted that the failure of the Appellants to state that they have been receiving goods through the 1st Respondent before the 1st Respondent started diverting the goods, indicated that by implication the Appellants were comfortable with the chain of supply and they cannot complain against the 5th – 7th Respondents. Counsel referred to Exhibit DD that the goods were collected without any complain until the tail end of transaction when the Appellants’ goods were diverted by the 1st Respondent in collaboration with the 2nd – 4th Respondents. He submitted that based on the foregoing, the Appellants cannot be heard to complain of fraud and negligence against the 5th – 7th Respondent on the chain of supply. Counsel referred to Section 169 of the Evidence Act, 2011.

It was further submitted on the authority of BF GROUP Vs. B.P.E (2012) 18 NWLR (Pt. 1332) 209 at 240 and CENTRAL LONDON TRUST LTD Vs. HIGH TREES HOUSE LTD (1947) K.B. 130 that since the 1st Respondent have caused 1st Appellant to alter his position from the beginning of the transaction up to the time the transaction was foreclosed in 2014. The Appellants are estopped from acting inconsistently with their previous position. Counsel further referred to exhibits. It would reveal that the 1st Appellant and 1st – 4th Respondents had an already existing relationship. Counsel submitted that the evidence of PW5 under cross–examination weakened the Appellants case to the effect that the 1st Appellant was deceived by the 1st – 4th Respondent which made him to believe that he was dealing with the staff of 5th – 7th Respondents. Counsel pointed out that by Exhibit DE, the 1st Respondent admitted that he posed as Abubakar Yari CEO of Bua Group. He also admitted that the 3rd Respondent forged the award letter for 70 trucks of sugar. Further on page 7 of Exhibit DE, the 1st Respondent admitted that he used his influence to convert the pasta into sugar. Counsel referred to pages 1397 – 1475 of the record of appeal.

On whether the Appellants have established negligence on the part of the 5th – 7th Respondents concerning the delivery of the goods purchased by the Appellants, he referred to the cases of ANYAH Vs. IMO CONCORDE HOTELS LTD (2002) 18 NWLR (Pt. 799) P. 377 at 395 and S.B.N LTD Vs. DE LLUCH (2004) 18 NWLR (Pt. 905) P. 341 at 355 on what constitute negligence and what must be proved to succeed in an action for negligence.

It was submitted on the strength of the above authorities that the burden to prove negligence was/is squarely on the Appellants who asserts. He referred also to the case of U.T.B. (NIG) Vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 at 465.

On the particulars of negligence pleaded by the Appellants in their amended statement of claim, counsel referred to pages 693 – 695 of the record. The 5th – 7th Respondents have denied being negligent in paragraph 3, 4, 64, 65, 66, and 68 of their amended statement of defence on pages 818, 831 – 832 of the record of appeal. It was the defence of the 5th – 7th Respondents against negligence that the 1st Respondent who always presented himself as the 1st Appellant ordered for goods from the 5th – 7th Respondents and all the goods were supplied to the 1st Respondent. It was submitted that the 5th – 7th Respondents acted throughout the transaction in the ordinary course of business and observe due care in treating the orders in this transaction which were all delivered in accordance with the usual terms of the sales. It was further submitted that the evidence of DW3 under cross–examination has further weakened the case of the Appellants on the allegation of negligence.

On when the risk passes to the purchaser, counsel contended that risk only passed to the purchaser at the point of delivery of the goods at the 5th – 7th Respondents Ware House. Counsel stated that all the delivery made by the 5th – 7th Respondents were based on the payment made and instruction from the 1st Appellant. He submitted that it was/is not the duty of the 5th – 7th Respondents to investigate where the goods were taken to after being lifted from the 5th – 7th Respondents’ office. He submitted that the only duty 5th – 7th Respondents owe to the Appellants is to supply and deliver the goods purchased by the Appellants on self-delivery.

Learned counsel reiterated that the Appellants must prove their case on the balance of probabilities. He referred to the case of OHOCHUKWU Vs. A.G. RIVERS STATES (2012) 6 NWLR (Pt. 1295) 53 at 85 – 86.

On Exhibits A, A1, and A2 relied upon by the Appellants, counsel submitted that Exhibits A, A1 and A2 are not tenable when read along with Exhibits DE – D4 and the pleadings. In conclusion, counsel urged the Court to hold that the 5th – 7th Respondents have not breached any duty of care that will give rise to negligence. He also urged the Court to discountenance the authorities cited by the Appellants and resolve these issues in favour of the 5th – 7th Respondents.

From the summary of the parties’ submissions, the claims of the Appellants under these issues are anchored on the fraudulent misrepresentation, negligence and conversion on the side of the Respondents jointly and severally committed against the Appellants.

By Sections 131 – 134 of the Evidence Act 2011, the burden is on the plaintiff to establish his claim. This is the evidential burden of proof. It is only after the plaintiff has adduced sufficient credible evidence that the burden of proof would shift to the defendant. The shifting burden of proof is enacted in Section 136 of the Evidence Act 2011 and it provides that the burden of proof as to any particular fact lies on the 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. As explained in ADIGHIJE Vs. NWAOGU (2010) 12 NWLR (PT.1209) 419 @ 463: “Section 137 of the Evidence Act, 2004 (now Section 133 (1) Evidence Act, 2011) provides for the burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise in the pleadings. If such party adduces evidence which might reasonably satisfy a Court that the fact sought to be proved is established, the burden lies on the party against whom judgment will be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. By Section 133, the burden of proof is not static. It fluctuates between the parties. Sub-section 1, places the first burden on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who will fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of Sub-section 2. And so the burden change takes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with.

In the instant case, the burden of proving the various sums of monies deposited with the Respondents by the Appellants is on them. Until there is discharge, the burden will now shift on the Respondents to prove otherwise. By reliefs (iii), (iv), (v) and (vi) of the Appellants prayers before the trial Court, the Appellants sought for:
iii. “an order of this Honourable Court directing the Defendants to refund to the 2nd and 3rd Plaintiffs the sum of N90,000,000.00 (Ninety Million Naira) they paid for the remaining 30 trucks of sugar paid for in the 70 trucks award allocation, but which supply and delivery was not made to them by the Defendants.”
iv. “an order of this Honourable Court directing the Defendants to refund to the 3rd plaintiff the sum of N58,550,000 (Fifty-Eight Million Five Hundred and Fifty Thousand Naira) being the value of the 37 trucks of spaghetti it paid but which the Defendants failed to supply to it.”
v. “an order of this Honourable Court directing the Defendants to refund to the 3rd Plaintiff the sum of N50,000,000.00 (Fifty Million Naira) it paid as part payment/initial deposit for 150 trucks of sugar but which the Defendants failed to supply to it.”
vi. an order of this Honourable Court directing the Defendants to refund to the 2nd and 3rd Plaintiffs the sum of N30,600,000.00 (Thirty Million, Six Hundred Thousand Naira) they had paid for the supply of 30 trucks of wheat opal but which the Defendants failed to supply to them.

In proving their case against the above relief, Salisu Musa (PW4) testified as follows:
“That sometime in February, 2014, the 1st and 2nd Defendants presented to the 1st Plaintiff an award letter issued in the name of the 2nd Plaintiff, and they claimed it was facilitated by them from the 5th Defendant for the allocation of 70 Trucks of sugar worth N210,000,000.00 (Two Hundred and Ten Million Naira) only. Paragraph 16 of page 121.
That having confirmed from the said Executive Director of the 5th defendant that the award is genuine and it emanates from the 5th defendant, that the 2nd Plaintiff made payments into the bank account of the 5th Defendant to the tune of N120,000,000.00 (One Hundred and Twenty Million Naira) only as follows:
The 1st payment on 17th Feb., 2014 vide Zenith Bank cheque N 16,000,000.00
The 2nd payment on 17th Feb., 2014 vide Unity Bank cheque N25,000,000
The 3rd payment on 3rd March, 2014 vide Zenith Bank cheque – N29,000,000
The 4th payment on 27th March, 2014 vide Unity Bank cheque – N30,000,000
The 5th payment on 28th March, 2014 vide Zenith Bank cheque – N20,000,000 – paragraph 28 of page 122
That on 1st April, 2014, the 7th Defendant issued an official receipt to the Plaintiffs which was an acknowledgement of the total sum of One Hundred and Twenty Million Naira (N120,000,000.00) paid it by the 2nd Plaintiff. – paragraph 37 of page 123
That soon after my return from the 5th Defendant’s office in Lagos, the Plaintiffs received supply of 40 Trucks of sugar in our warehouse in Kano thereby leaving a balance of 30 Trucks to be paid for and supplied in order to complete the seventy Trucks allocated in the award letter. – paragraph 38 of page 123
That having confirmed that the N120,000,000.00 (One Hundred and Twenty Million Naira) paid to the 5th Defendant is duly received and acknowledged by the accounts department of the 5th Defendant, the 2nd Plaintiff made a further deposit of N50,000,000.00 (Fifty Million Naira) only, from Zenith Bank account with the cheque No. 94526719 dated 30th May, 2014. – paragraph 39 of page 123
That the 3rd Plaintiff made another deposit of N35,000,000.00 (Thirty-Five Million Naira) only vide Zenith Bank Cheque No. 64349120 dated 17 June, 2014. – paragraph 40 of page 124
That the summation of the deposits in paragraphs 41 and 42 above amounts to N85,000,000.00 (Eighty-Five Million Naira) only, paid to the 5th Defendant’s Account by the 2nd and 3rd Plaintiffs respectively. – paragraph 41 of page 124.
That on the 17th June, 2014, the Plaintiffs wrote the 5th Defendant acknowledging receipt of 40 Trucks of sugar worth N120,000,000.00 (One Hundred and Twenty Million Naira) only and informing it of a further deposit of instalment payments made by the 2nd and 3rd Plaintiffs respectively which cumulates to N85,000,000.00 (Eighty-Five Million Naira only) leaving a balance N5,000,000.00 out of the N210,000,000.00 (Two Hundred and Ten Million Naira) the Plaintiffs were supposed to pay for the said 70 trucks of sugar only.
That in pursuance of the ongoing transactions between them and the 5th 7th Defendants, the 3rd Plaintiff made another deposit of N5,000,000.00 (Five Million Naira) only vide Zenith Bank Cheque No. 64349121 dated 19th June, 2014 into the account of the 5th Defendant. – paragraph 43 of page 124.
That on 20th June, 2014, the 7th Defendant issued a cash receipt in the name of the 2nd Plaintiff to the Plaintiffs acknowledging the receipt of the balance of Ninety Million Naira (N90,000,000.00) from the Plaintiffs as already stated above and the Plaintiffs thereby completed the payment of the N210,000,000.00 (Two Hundred and Ten Million Naira) they were supposed to pay for the said 70 trucks of sugar only. – paragraph 44 of page 124
That weeks after they completed payment and same acknowledged by the 5-7th Defendants, no further delivery was made to the Plaintiffs, hence the Plaintiffs mounted pressure on the 1st and 3rd Defendants concerning the none delivery of the remaining 30 Trucks of sugar notwithstanding the full payments made by the Plaintiffs to the 5th Defendant for same. Paragraph 45 of page 124.

On the claim of the sum N58,550,000.00, the 1st Respondent in his evidence in chief particularly in his additional statement on oath on pages 704- 705 of the record of appeal testified that the 5th -7th Respondent owes them the remainder of the 37 trucks to the tune of N58,550,000.00. He testified also on page 706 of the record that the 3rd Defendant deposited the sum of N50,000,000.00 on the 4th July, 2014 for the supply of sugar which was supplied.

The contention of the 5th – 7th Respondent was that all goods paid for by the Appellants were duly and fully supplied to the them. The Respondent admitted the receipt of all the monies deposited by the Appellants in their corporate account particularly as it appeared in Exhibits F – F17. The dispute arose as to whom the 5th – 7th Respondents delivered the Appellants’ goods worth 30 trucks of sugar estimated at the cost of N90,000,000.00. It was contended by the 5th-7th Respondents that the goods belonging to the Appellants were supplied to the 1st Respondent. They maintained throughout the trial that the 1st Respondent had always presented himself as the 1st Appellant. See paragraphs 4 and 13 of the Amended Statement of Defence on page 817 of the record of appeal. On the basis of the 5th -7th Respondents’ position on this point, the Appellants alleged fraud, negligence and conversion by the Respondents against them.

Black’s Law Dictionary Abridged 5th Edition defines FRAUD as “An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal fight. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceive another so that he can act upon it to his legal injury. Any kind of artifice employed by one person to deceive another. Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.” See also NTUKS Vs. NPA (2007) 13 NWLR (Pt. 1051) 392. 

A person alleging fraud is not only required to make the allegation in his pleadings but must in the pleadings set out particulars of fact establishing the alleged fraud prima facie. See BESSOY LTD Vs. HONEY LEGON (NIG) LTD & ANR (2008) LPELR-8329 -(CA).

Negligence on the other hand, is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. See Black’s Law Dictionary, 7th Ed. Judicially, it is the failure to exercise that care, which the circumstances demand; and what amounts to negligence depends on the facts of each case.” See SALAKO Vs. STATE (2007) LPELR 4569-(CA). 

The determination of what amounts to negligence is fluid, and that fluidity has to be applied to diverse conditions; but having said that the ordinary case of negligence, which does not involve any special skill simply means, omission or failure on the part of one, to do something, or omit to do that, which a reasonable man, under similar circumstances would do or that which a reasonable man in the same circumstance would not do. If that failure results in injury then there is a cause of action. 

The test on whether an act amounts to professional negligence on the other hand is that of standard of the ordinary skilled man, exercising and professing to have that special skill. See ABI Vs. CBN & ORS LPELR – 4192 (CA). The general concept of reasonable foresight is the criterion of negligence; in other words, negligence is not established by proving that the loss sustained by the plaintiff might have possibly, and with extra-ordinary foresight and prudence, been avoided by the defendant/appellant. See U.T.B. (NIG.) Vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 @ 488.

In an action for negligence, a plaintiff can only succeed if in addition to pleading it and particulars thereof, he or she must also show the duty of care owed to him or her by the defendant and the breach of that duty by the defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial. In the case of ANYAH Vs. IMO CONCORDE HOTELS LTD & 2 ORS (2002) 18 NWLR (Pt.799) 377, this Court inter alia held: –
“For the defendant to be liable for negligence, there must be either an admission by him or sufficient evidence adduced to a finding of negligence on his part.”
The Court went further to hold that the most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. See BENSON Vs. OTUBOR (1975) 3 SC 19, OKOLI Vs. NWAGU (1960) SCNLR 48; (1960) 3 FSC 16, NIGERIA AIRWAYS LTD Vs. ABE (1988) 4 NWLR (Pt. 90) 524 AND STRABAG CONSTRUCTION (NIG) LTD Vs. OGARAKPE (1991) 1 NWLR (Pt. 170) 733.

In instant case, the relationship between the Appellants and the 5th -7th Respondent is contractual. It is a relationship between manufacturer and customer. In NIGERIA BOTTLING COMPANY PLC Vs. RUTH ADEMELI (2015) LPELR-41851(CA), the Court held that there is duty of care as in the instant case between the manufacturer of soft drinks and the purchaser, it held, thus:
“…the respondent purchaser who bought some soft drinks of the appellant has by the purchase rights such as
(1) that the goods bought are good for the purpose under the sale of Goods Law which right will ensure in contract.
(2) that the goods are free from any manufactures defect which may cause harm to her or her own. In other words, the manufacturers (appellant) owe her a duty of care to ensure that no harm comes to her by purchasing and handling or consuming the product this is in the tort of negligence. From the facts, there is no contractual privity between the respondent and the appellant and so no contractual right arises. However, there is a duty of care on the manufacturer of soft drinks to ensure that no harm comes to consumers of their product by their negligence – breach of that duty.”

In paragraph 94 of their amended statement of claim, Appellants pleaded fraudulent misrepresentation and the particulars of it and in paragraph 95, they pleaded negligence and the particulars of negligence. See pages 691-695 of the record of appeal. From the fact and the circumstance of this case, the Appellants have not succeeded in establishing fraud in their dealings with the 5th – 7th to the Respondents but rather the 5th -7th Respondent were negligent in releasing the Appellants’ goods on the forged letter of authority to the 1st Respondent. DW3 clearly wrote in pages 2 – 3 of Exhibit A as follows:
“The letter sent to the company was duly signed by Musa Aliyu and was so admitted by the company having confirmed the fund transfers made to the company’s account. Before this transaction the company did not have Musa Aliyu’s signature specimen.”

From the above evidence, the 5th-7th Respondents made no attempt to verify the signature on the purported letter of authority, but they took steps to confirm that the Appellants actually paid money into their accounts. Once the 1st Respondent gave the 5th-7th Respondents the letter of authority, they “admitted” it and relied on it to allegedly release the Appellants’ goods to the 1st Respondent. On the other hand, DW1 under cross-examination by the Appellants, admitted that at all material times in the transactions, the 5th-7th Defendants knew whom the 1st Appellant was and whom the 1st Respondent was; that they were different persons. See page 184 of the record of appeal. Having known the 1st Respondent and the 1st Appellant as different persons, the 5th-7th Respondent ought to take reasonable care to protect the Appellants’ interest in the transaction, particularly that all the payment effected were through the accounts of the Appellants to the corporate account of the 5th-7th Respondents. The defence put forward by the 5th-7th Respondents in accepting 1st Respondent as the 1st Appellant that made it to release the Appellants’ goods to the 1st Respondent because the 1st Respondent had always represented himself as the 1st Appellant is not tenable and will not avail the 5th-7th Respondents, unless they have shown necessary steps in ensuring that, in fact they were dealing with the Appellants. In this instance, DW1 admitted under cross-examination, that at all material times in the transactions, the 5th-7th Defendants knew whom the 1st Appellant was and whom the 1st Respondent was that they were different persons. Therefore, based on the foregoing, the 5th – 7th Respondents ought to have exercise the standard of care that a reasonably prudent person would have exercised in this situation. It is my view that the 5th -7th Respondents were negligent in dealing with the 1st Respondent to release the goods of the Appellants to him after apparently knowing the 1st Respondent is different from the 1st Appellant.
On the claims of:
i. AN ORDER of this Honourable Court directing the 3rd and 4th Defendants to refund to the 3rd Plaintiff the sum of $25,250 or the naira equivalent it had paid for the facilitation of the award of contract by the 7th Defendant for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
ii. AN ORDER of this Honourable Court directing the 3rd and 4th Defendants to refund to the 3rd Plaintiff the sum of N5,000,000 (Five Million Naira) it had paid for the facilitation of the award of contract by the 7th Defendant for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
iii. AN ORDER of this Honourable Court directing the 1st, 2nd, 3rd and 4th Defendants to refund to the Plaintiff the sum of N14,570,000 it paid to Sensitive Links Nig. Ltd as performance insurance bond which turned out to be fraudulent.

The Appellants led evidence and tendered documents in support of those claims. The above claims are specifically against the 1st – 4th Respondents. From the record, the 1st – 4th Respondents despite being duly served with all the processes in the suit by the Appellants neither filed any processes nor participated at the trial leading to the judgment now appealed against. 

It is an elementary principle of law that unchallenged averments must be acted upon by the Courts as being true. See EZECHUKWU & ANR Vs. ONWUKA (2016) LPELR-26055 (SC). In GARBA & ORS Vs. CHIBIRI & ORS (2013) LPELR-22614 (CA), the Court held as follows:
“All the eight plaintiff witnesses testified in proof of these averments. The Appellants did not file any pleading to controvert these averments of the Respondents and neither did they contest the testimonies of the witnesses thereon either by way of cross-examination or by reading contrary evidence. The net effect of these is that the averments of the Respondents stood unchallenged and the Appellants were deemed to have admitted the case made against them by the Respondents, Ifeta Vs. Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585, Okolie Vs. Marinbo (2006) 15 NWLR (Pt 1002) 316, Asika Vs. Atuanya (2008) 17 NWLR (Pt.1117) 484.”
See OGUNDIPE VS. AG. KWARA STATE (1993) 8 NWLR (Pt 313) 558 at 567 – 568, where it was held succinctly inter alia thus:
“As earlier noted, the respondents did not field witnesses nor did they discredit the evidence of the appellant and their lone witness result is that the evidence tendered by the Appellants in proof of exclusive possession remained unchallenged …It is now a common place that evidence which is not challenged nor controverted and is supported by the pleadings, and by its nature is not incredible leaves the trial judge with no option but to accept and act on it.”

In view of all that has been said, these issues are resolve against the Respondents and in favour of the Appellants.

In arguing issue 3, it was submitted that the 1st – 4th Respondents did not counter by way of pleadings or cross-examination, all the averments of the Appellants against them and the evidence adduced by all the Appellants’ witnesses against them in this case. On the state of the pleadings and the entire evidence adduced in this case, the Appellants are entitled to judgment against the 1st – 4th Respondents on the ground that they neither challenged nor controverted the material facts and evidence anchored thereon, against them. He referred to the case of NZERIBE Vs. DAVE ENG. CO. LTD (1994) 8 NWLR (Pt. 361) 124 at 139, where the Supreme Court Per Iguh JSC held as follows:
“As I have already pointed out, it cannot be over-emphasized that a trial Court is always entitled to accept and/or act upon uncontradicted and unchallenged evidence establishing loss legally recoverable in a given case.”

He submitted further that due to the obvious fact that the 1st – 4th Respondents, neither filed pleadings nor adduced any evidence in this case, the Appellants are entitled by law, to succeed in their case against them only upon minimal proof. He referred to the cases of NZERIBE Vs. DAVE ENG. CO. LTD (supra) at 137, EGBUNIKE Vs. ACB LTD (1995) 2 NWLR (Pt. 375) 34 at 55, GARBA Vs. ZARIA (2005) 17 NWLR (Pt. 973) 55 at 65 and ADEWUYI Vs. ODUKWE (2005) 14 NWLR (Pt. 945) 473 at 492-493.

Learned counsel referred to the finding of the learned trial judge where he found that the 1st – 4th Respondents were liable in fraud and fraudulent misrepresentation against the Appellants. He stated that instead of awarding to the Appellants all the reliefs they claimed, the learned trial judge held that the actual quantity of the goods not supplied to the Appellants could not be ascertained from the pleadings and evidence adduced. He referred to page 1531 of the record of appeal).

Learned counsel pointed out that the reliefs affected by this position of the trial Court are contained in paragraph 98 (iii), (iv), (v), (vi), (viii) of the Amended Statement of Claim. He further stated that the trial Court also refused the Appellants’ claim of N500,000,000.00 general damages and N5,000,000.00 cost. See pages 778-779 of the record of appeal.

He submitted that in Paragraph 98 (iii) of the Amended Statement of Claim, the 2nd and 3rd Appellants claimed the sum of “N90,000,000.00 (Ninety Million Naira) they paid for the remaining 30 trucks of sugar paid for in the 70 trucks award allocation, but which supply and delivery was not made to them by the Defendants”. Between paragraphs 27-44 of the Amended Statement of Claim, the Appellants pleaded that the 5th-7th Respondents awarded them 70 trucks of sugar at the cost of N210,000,000.00. (Two Hundred and Ten Million Naira).

Counsel contended that the Appellants in those paragraphs gave detailed breakdown of how they paid the entire sum of N210,000,000.00. (Two Hundred and Ten Million Naira) into the account of the 5th Respondent. In paragraph 37 of the Amended Statement of Claim, the Appellants pleaded that they received 40 trucks of sugar out of the 70 trucks of sugar in their warehouse in Kano, leaving a balance of 30 trucks unsupplied. In paragraphs 44 and 46 of their further Amended Statement of Claim, the Appellants further pleaded that after they had completed the payment of the money, the 5th-7th Respondents have still not supplied the balance of 30 trucks of sugar to them. See page 768 of the record of appeal.

Learned counsel argued that none of the Respondents have denied these averments. It is the monetary worth of the unsupplied 30 trucks of sugar that the Appellants have claimed in Paragraph 98 (iii) of their Amended Statement of Claim.

In paragraph 98 (iv) of the Amended Statement of Claim, the 3rd Appellant claimed the sum of N58,550,000.00 (Fifty-Eight Million, Five Hundred and Fifty Thousand Naira) against the Respondents “being the value of the 37 trucks of spaghetti it paid for which the Defendants failed to supply to it”. See page 779 of the record of appeal.

He further pointed out in paragraph 66 of their Amended Statement of Claim, the Appellants pleaded as follows:
“The Plaintiffs aver that the remainder of trucks not supplied as referred to in paragraphs 64 and 65 above are 37 trucks to the tune of N58,550,000.00 (Fifty – Eight Million, Five Hundred and Fifty Thousand Naira).” (see page 771 of the record of appeal).

Counsel stated further that in paragraph 98 (v) of their Amended Statement of Claim, the Appellants prayed for an Order directing the Respondents to refund to the 3rd Appellant the sum of N50,000,000.00 (Fifty Million Naira), it had paid as part payment/initial deposit for 150 trucks of sugar but which the Respondents failed to supply to it. See page 779 of the record of appeal.

In his further submission, counsel submitted that the Appellants pleaded the transaction for the supply of 150 trucks of sugar to them in paragraph 69 of their Amended Statement of Claim. In paragraph 70 thereof, they pleaded that on 4th July, 2014, the 3rd Appellant paid the sum of N50,000,000.00 into the account of the 5th Respondent. He stated that the Respondents did not deny this payment. See page 771 of the record of appeal.

In another submission, counsel submitted that in paragraph 98 (vi) of the Amended Statement of Claim, the 2nd and 3rd Appellants claimed for the refund of “N30,600,000.00 (Thirty Million, Six Hundred Thousand Naira) they paid for the supply of 30 trucks of wheat opal but which the Defendants failed to supply to them.” see page 779 of the record of appeal.

It was stated further that in paragraph 67 of the Amended Statement of Claim, the Appellants averred that the 2nd Appellant paid the sum of N20,000,000.00 (Twenty Million Naira) and the 3rd Appellant paid the sum of N10,600,000.00 (Ten Million, Six Hundred Thousand Naira) both on 22 September, 2014 amounting to N30,600,000.00 (Thirty Million, Six Hundred Thousand Naira) into the account of the 6th Respondent for the supply of 30 trucks of wheat opal, but same has not been supplied till date. See page 771 of the record of appeal. Counsel also submitted that in paragraph 98 (viii) of the Amended Statement of Claim on page 779 of the record of appeal, the Appellants claimed the sum of N5,000,000.00 (Five Million Naira) from the 3rd and 4th Respondents being the sum the 3rd Appellant had paid for the facilitation of the award of contract by the 7th Respondent for the supply of 100 Howo tractors/trucks but which turned out to be fraudulent. The particulars of the payment was pleaded in paragraph 50 of the Amended Statement of Claim where the Appellants pleaded that the 1st Appellant through one Mohammed Adamu Yusuf made a cash payment on N5,000,000.00 (Five Million Naira) to the 3rd and 4th Respondents for the facilitation of the award of the 100 Howo Trucks to the Appellants. See page 768-769 of the record of appeal.

In conclusion, learned counsel submitted that the learned trial judge was wrong when he dismissed the Appellants’ claims on the ground that the actual quantity of goods not supplied could not be ascertained from their pleadings, without actually making the slightest effort to go through the Appellants’ pleadings.

He pointed out that the 5th-7th Respondents admitted those payments, but then pleaded that they supplied the goods to the 1st Respondent.

He urged the Court to resolve this issue in favour of the Appellants.

In his response, learned counsel to the Respondents referred to the nature of pleadings, that it must be precise, concise and clearly state the claim of a Plaintiff. He referred to the case of ABUBAKAR Vs. YAR’ ADUA (2008) 19 NWLR (Pt. 1120) 1 at 147.

He submitted that the Appellants’ Amended Statement of Claim is not concise as to the whole amount of the money paid by the Appellants and the total amount of alleged goods not supplied to the Appellants. The 5th – 7th Respondents consistently in the Amended Defence have stated that all goods paid for were supplied. It now behoves the Appellants to state the amount outstanding and the amount paid for the supply.

He argued that the Appellants have deliberately refused to state in their pleadings the total amount involved in the transaction and what was not supplied. He stated that the trial Court in doing justice asked DW3 the total amount of the entire transaction. DW3 stated that it was N709,700.000 only. See page 193 of the Record. He continued that no evidence was led by the Appellants regarding the total amount of goods yet to be supplied.

Learned counsel argued that a Plaintiff must succeed on the strength of his case and the Plaintiff has a duty to prove his case on a balance of probability notwithstanding the failure of the defendant to adduce iota of evidence. His case must fail or succeed on its own strength and not on the weakness of the defendant’s case. He relied on the case of OHOCHUKWU Vs. A. G RIVERS STATE (supra).

In conclusion, it was submitted that putting the case on the imaginary scale, the story of the Appellants has not outweighed that of the 5th, 6th and 7th Respondents. That the balance tilts in favour of the 5th 6th and 7th Respondents. He urged the Court to resolve issue no. 3 in favour of the 5th, 6th and 7th Respondents. This is because from the totality of the Pleadings and evidence led, the case of the Appellants cannot succeed on their own strength. He submitted that, in the event the Court resolve this issue against the 5th -7th Respondents, the 5th -7th Respondents urges the Hon. Court to hold that they were not fraudulent and negligent in the transaction leading to this Appeal.

This issue was partly resolved in the resolution of issues one and two. The law is clear that averments in a pleading that was not controverted are deemed to be established and admitted by the party whose duty it is to controvert same. It is also trite law that the Court must accept unchallenged evidence without hesitation. See SHONA – JASON LTD Vs. OMEGA AIR LTD (2006) 1 NWLR (PT. 960) 1 at 33-34, AJOMALE Vs. YADUAT (No.2) (1991) 5 NWLR (Pt. 191) 266 at 282-283, EGBUNA Vs. EGBUNA (1989) 2 NWLR (PT. 106) 40 and FAWEHINMI Vs. ABACHA (1996) 5 NWLR (Pt. 447) 198 at 202.

In the instant case, as earlier held in this judgment, the Appellants have succeeded in establishing their claims against the Respondents jointly and severally. To avoid being repetitive, I adopt the submission of the Appellants under this as the reasoning and conclusion of this Court concerning the details of the claims against the Respondents. This issue is also resolved against the Respondents and in favour of the Appellants.

Having resolved all the issues for determination in this appeal against the Respondents, it is crystal clear that this appeal has merit, same is hereby allowed. The judgment of the trial Court delivered in Suit No. K/143/2015 by Hon. Justice A.T. Badamasi on the 27th February, 2019 is hereby set aside. In its place the following orders are hereby made:
i. That the 5th, 6th, and 7th Defendants/Respondents acted negligently in the transactions giving rise to this suit, when they supplied and delivered goods due to the plaintiffs/Appellants to the 1st, 2nd, 3rd and 4th Defendants/Respondents without the consent and authority of the Plaintiffs.
ii. That the 5th -7th Respondents shall refund to the 2nd and 3rd Appellants the sum of N90,000,000.00 (Ninety Million Naira) they paid for the remaining 30 trucks of sugar paid for in the 70 trucks award allocation, but which supply and delivery was not made to them by the 5th -7th Respondents.
iii. That the 5th- 7th Respondents shall refund to the 3rd Appellant the sum of N58,550,000 (Fifty-Eight Million Five Hundred and Fifty Thousand Naira) being the value of the 37 trucks of spaghetti it had paid for but which the 5th-7th Respondents failed to supply to it.
iv. That the 5th-7th Respondents shall refund to the 3rd Appellant the sum of N50,000,000.00 (Fifty Million Naira) it had paid as part payment/initial deposit for 150 trucks of sugar but which the 5th-7th Respondents failed to supply to it.
v. That the 5th-7th Respondents shall refund to the 2nd and 3rd Appellants the sum of N30,600,000.00 (Thirty Million, Six Hundred Thousand Naira) they had paid for the supply of 30 trucks of wheat opal but which the 5th-7th Respondents failed to supply to them.
vi. That the 3rd and 4th Respondents shall refund to the 3rd Plaintiff/Appellant the sum of $25,250 or the naira equivalent it had paid for the facilitation of the award of contract by the 7th Respondent for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
vii. That the 3rd and 4th Respondent shall refund to the 3rd Plaintiff/Appellant the sum of N5,000,000 (Five Million Naira) it had paid for the facilitation of the award of contract by the 7th Respondent for the supply of 100 Howo Tractors/Trucks but which turned out to be fraudulent.
viii. That the sum N5,000,000 is hereby awarded in favour of Appellants as general damages against the Respondents jointly and severally.
ix. That Interest on the above sums be paid by the Respondents/Defendants to the Appellants/Plaintiffs at the rate of 11% per annum from 17th February, 2014, till the date of judgment and thereafter at the rate of 8% per annum till final liquidation.
x. N50,000.00 cost of this action is awarded in favour of the Appellants.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, Musale, JCA in this appeal, allowing the appeal. I too allow the appeal and abide by the consequential orders in the lead judgment.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, USMAN ALHAJI MUSALE, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

Appearances:

Francis Chukwudi Ani, Esq. For Appellant(s)

A. B. Muhmoud, SAN, OON, FClArb (UK), with him, Oseni Sefiullahi, Esq. Fariha Sani Abdullahi, Esq. and Yahaya Isah Abdulrasheed, AClArb (UK) Esq. (Dikko & Mahmoud) Solicitors For Respondent(s)