ANAYO AWAZIE v. ONYEBUCHI OKOROAFOR
(2015)LCN/8039(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of November, 2015
CA/OW/209/2011
RATIO
APPEAL: THE DUTY OF AN APPELLATE COURT; THE ROLE OF AN APPELLATE COURT TO EVALUATE OR APPRAISE EVIDENCE BY THE LOWER COURT
It is important to note that the issue of evaluation or appraisal of evidence by the Lower Court and the role expected of the Appellate Court when considering the Lower Courts decision on Appeal is fairly well settled in a plethora of decided cases. The classical position is as straight forward as this; it is not the business of the Court of Appeal substitute its own views for the views of the trial Judge who saw and heard all the witnesses and who, therefore was in a better position to assess their credibility or otherwise evaluate their evidence and appraise the facts. For this reason, the Appeal Court should not and would not interfere with the verdict of the trial Court unless such verdict is shown to be perverse or is not the result of a proper evaluation of the evidence. The Supreme Court in the case of MILITARY GOV. OF LAGOS STATE & ORS vs. ADEYIGA & ORS (2012) LPELR- 7836(SC), per ADEKEYE, JSC had this to say on the subject;
It is the trial Court alone that has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance of justice tilts, makes the necessary findings of fact and comes to a logical conclusion. The evaluation remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the Court best suited to assess their credibility. It is only when it fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate such evidence otherwise the Appellate Court has no business interfering with the findings of the trial Court on such evidence…” per. FREDERICK OZIAKPONO OHO, J.C.A.
PRACTICE AND PROCEDURE: CROSS EXAMINATION; THE EFFECT OF THE FAILURE TO CROSS EXAMINE A PARTY OR WITNESS UPON A PARTICULAR MATTER
It is elementary position of the law that the effect of failure to cross examine a party or witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness or party. See the case of GAJI vs. PAYE (2003) 8 NWLR (PT. 823) 583 and several decisions of Courts on this issue; In the recent decision of the Supreme Court in CBN & ORS vs. OKOJIE (2015) LPELR-24740 (SC) per RHODES-VIVOUR, JSC had this to say on the subject;
My Lords, a litigant who fails to file a statement of defence and further fails to cross examine the adverse party, in this case the Respondent, has by his own hands shut himself out from the proceedings in which the Plaintiff/Respondent makes serious allegations, claims against him. The Defendant has abandoned any defence he might have and the Court is expected to accept the Plaintiff?s unchallenged evidence to establish the facts the Plaintiff seeks to establish. per. FREDERICK OZIAKPONO OHO, J.C.A.
EVIDENCE: ORAL EVIDENCE; WHETHER ORAL EVIDENCE IS ADMISSIBLE EVIDENCE IN CONTRADICTING, VARYING OR ALTERING THE CONTENT OR TRANSACTION WHICH HAS BEEN REDUCED TOT THE FORM OF A DOCUMENT
As far as this Court is concerned, that undeniably remains the accurate position of the law. Section 132(1) of the Evidence Act, 1990 effectively prohibits the admissibility of oral evidence in contradicting, varying or altering the contents of any contract or transaction which has been reduced to the form of a document. But Section 132(1)(a) makes exceptions to the rule. This is where oral evidence may be admitted to prove fraud, mistake of fact or law etc or any other matter which, if proved, would produce any effect upon the validity of any document or any part of it which would entitle any person to any judgment, decree or order relating thereto. per. FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ANAYO AWAZIE
(Doing business under the name and style of ANNY MOTORS) Appellant(s)
AND
ONYEBUCHI OKOROAFOR Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment): In Suit No: HU/273/2007, the Plaintiffs Statement of Claim at paragraphs 12 (a), (b), (c), (d) and (e) was endorsed with the Plaintiffs Claims as follows: The Plaintiff has suffered damage and loss as a result of the conduct of the Defendant, wherefore the Plaintiff claims against the Defendant as follows:
a. A Declaration that the plaintiff being the original purchaser, or having an investment in or being in any other way related to Mack Truck Vehicle No. XG 403 ABJ before the defendant rendered him financial assistance in respect of the vehicle has an interest in the said vehicle which the Court can protect.
b. A Declaration that the defendant cannot dispose of, repair, appropriate the vehicle to himself alone or in any other way tamper with the vehicle without the knowledge, consent, participation and concurrence of the Plaintiff.
c. An Order of Court mandating the defendant to return to the plaintiff, his two passport photographs and disclose to the plaintiff the whereabout of the vehicle.
d. An Order of Court mandating the defendant to
disclose to the plaintiff the where about of the vehicle or who he sold same to and disclose to the plaintiff receipts or other documents of sale and to pay over to the plaintiff one half or other sum as may be adjudged by the Court from the money realized from the sale or use of the vehicle.
e. The sum of ten million (N10,000,000.00) Naira representing the present value or any part of ?it as may be adjudged by the Court to be due to the Plaintiff or to satisfy his interest or investment in the vehicle as special and general damages against the defendant for his dealings or tampering with the vehicle without the knowledge, consent participation and concurrence of the plaintiff.
?Pleadings were ordered and duly filed by both parties. The facts of the case as disclosed by the pleadings may be summarized from the view of the Respondent as follow:
?The Respondent as claimant before the Lower Court was said to have identified, negotiated the purchase price and paid the sum of Four Hundred Thousand (N400,000.00) Naira out of a total sum of One Million (N1,000,000.00) Naira agreed upon as purchase price for a Mark Truck Vehicle at Port Harcourt,
Rivers State. The receipt issued for the said sum of N400,000.00 by the vendor was tendered in the course of trial at the Lower Court as Exhibit A. (See page 87 of the records of proceedings). When it became obvious that the Respondent could not come up with the remainder and balance of N600,000.00, he was introduced to the Appellant by the PW2, one Ndukwe Onuoha, a Civil Servant at No. 1 Okigwe Road, Umuahia, Abia State. The purpose was to have the Appellant, raise and pay the said sum of N600,000.00 which was outstanding and which needed to be paid to the vendor of the said Mark Truck Vehicle on the condition that same will be repaid by weekly instalments with interests commencing from when the Vehicle will be put into use.
?In the course of trial at the Lower Court, the Respondent as Plaintiff tendered copies of the vehicle documents issued to him by the vendors as Exhibits B, C, D while Exhibit E represents a list of expenditures made by both parties on the vehicle to ensure its road worthiness and to put same on the road. When the vehicle was ready for use, the Appellant was said to have refused to release the vehicle to the Respondent unless the
Respondent deposited three (3) passport photographs for purposes of drawing up an agreement between the parties. But that rather than draw up an agreement as was expected, for the refund of money on instalments and on the basis of the payment of interests, the Appellant was said to have produced a document which turned out to be a Hire-Purchase Agreement and threatened not to allow the Respondent the use of the said Vehicle unless and until the Respondent signed the document.
The Respondent, claimed he had no options and was forced into signing the said document and that the vehicle was thereafter released to him. He commenced working and paying the weekly instalments until vehicle was involved in an accident and had to be towed away to the garage of the Appellant, pending its repairs. At the time the Respondent approached the Appellant to discuss modalities for the repairs of the vehicle, the vehicle was nowhere to be found and the Appellant said that he had to sell off the vehicle being its sole owner.
?On the part of the Appellant, there was feverish denial of the claims of the Respondent. The Appellant rather claimed that he bought the said Mark Truck
Vehicle wrongly claimed by the Respondent from one Chief M. O. Ikegwuru of No. 1 Chinda Street, Ozuoba, Port Harcourt, Rivers State, who issued him with receipt of payment and also gave to him the Original particulars of the vehicle. These documents were also pleaded at the Lower Court. According to the Appellant, when he bought the said vehicle it was without any recourse to any agreement with the Respondent. The Appellant also denied that the Respondent was ever introduced to him by anyone and that all he does in the ordinary Course of business is buying and selling of vehicles and does not give loans to anyone. He denied that the Respondent expended any monies on the said Truck and that at best that claim if at all is nothing, but a fabricated falsehood. He further denied the entire story of the Respondent and asserted that it was the Respondent who rather approached the Appellant to utilize the vehicle on a Hire Purchase Agreement which was duly documented, executed between the parties in the presence of witnesses and sureties.
?Hearing commenced in this matter on the 11-11-2008. (See pages 144 ? 166 of the printed records). The Respondent as
Plaintiff testified for himself as the PW1 and called two other witnesses; the PW2 and PW3 who gave evidence half way and collapsed in open Court. The Respondent also tendered a total of eight (8) Exhibits marked Exhibits A – H, while the Appellant as Defendant also testified for himself as DW1 and called two other witnesses who testified as DW2 and DW3. A total of ten (10) Exhibits were tendered by the Appellant and these were marked as Exhibits J ? T. At the conclusion of trial, the Lower Court delivered a well considered Judgment on the 19-7-2010, whereupon the Court found for the Respondent and granted the entire reliefs claimed by him.(See pages 192 -202 of the printed records).
Dissatisfied with the findings and decision of the learned trial judge, the Defendant (hereinafter called the ?Appellant?) has appealed to this Court. Learned Counsel for the Appellant filed a total of four (4) Grounds of Appeal which are here under reproduced without their particulars as follows:
GROUNDS OF APPEAL:
1. ERROR IN LAW;
The trial Court erred in law and caused a miscarriage of justice against the defendant in holding that the
defendant is not the actual and sole owner of Mark Truck of Registration No. XG 403 ABJ the subject matter of this suit and in further holding that the claimant is not claiming ownership of the said vehicle and also, that the ownership of the vehicle is not in issue which resulted in denial of justice to the defendant.
2. ERROR IN LAW;
Resulting from not resolving the issue of who owns the vehicle, which is subject matter of this suit, the Honourable Court erred in law and caused a miscarriage of justice against the defendant by holding that the Hire Purchase Agreement was not the proper agreement in the circumstance and so did not consider Exhibit ?O? the (Hire Purchase Agreement) made willingly by the parties in this suit, which of course was the pivot of the entire suit.
3. ERROR IN LAW;
The Honourable trial Court erred in law and caused a miscarriage of justice against the defendant in resolving the issues PW3 ?Marcus O. Ikegwuru? who fell at the witness box and refused to return to finish his evidence when he recovered against the defendant without substantial evidence informing his decision. The Court erred in
believing the uncompleted and uncross-examined evidence of PW3 which is against the case of the defendant.
4. ERROR IN LAW;
The Honourable trial Court erred in law and caused a miscarriage of justice against the defendant in his erroneous administration of justice by basing his judgment on the evidence of PW1, the claimant in this suit when he knows quite well that he unjustly foreclosed the defence Counsel from cross-examining the said witness.
Subsequently, the Appellant nominated two (2) issues from Grounds 1 and 4, and abandoning Grounds 2 and 3. These Grounds are therefore deemed abandoned and are therefore struck out. From Grounds 1 and 4, the Appellant nominated the following issues for the Court?s determination;
1. Whether the trial Court properly evaluated the entire evidence of the parties when he made a finding that the appellant was not the actual sole owner of the Mack Truck
2. Whether the judgment of the trial Court granting the respondent his claim was not against the weight of evidence proffered by the respondent.
On the part of the Respondent, learned Counsel adopted the issues identified by the Appellant
and upon which he addressed Court in response to Appellant?s arguments. Learned Counsel in their briefs of argument addressed Court extensively and cited plethora of authorities. At the hearing of the appeal on the 25-9-2015, the Appellant?s brief of argument dated the 7-11-2014 but filed on the 7-11-2014 was settled on behalf of the Appellant by Thelma N. Clement Esq. The Respondent?s brief of argument dated the 5-3-2015 was filed on the 11-5-2015. This brief was settled on behalf of the Respondent by Emma E. Ukaegbu, Esq.
This Appeal shall therefore be determined on the basis of the issues identified by learned Counsel to the parties as follows;
SUBMISSIONS BY LEARNED APPELLANT?S COUNSEL;
ISSUE ONE;
Whether the trial Court properly evaluated the entire evidence of the parties when he made a finding that the appellant was not the actual sole owner of the Mack Truck?
On this issue, learned Appellant?s Counsel opened his arguments by referring Court to the findings of the Lower Court at page 198 lines 18 and 19 of the Records where the Court stated as follows;
?…that is to say that the defendant
is not actual sole owner of the truck in view of the analysis above I found as a fact that both parties invested in the truck though unequally.?
Learned Counsel submitted that the position at law is that parties are bound by their pleadings and that the Court is not allowed to depart from the case pleaded. Counsel cited the case of ARCHIBONG vs. ITA (2004) ALL FWLR (PT. 197) 939 RATIO 17. He referred to the Respondent?s statement of claim at pages 4 and 5 of the Records, particularly at paragraphs 3 and 4 respectively where he averred thus:
?When the Plaintiff could not raise the balance of one Million Naira for the vehicle, he was introduced by one Asaa for assistance. The Defendant later assisted the Plaintiff to the vehicle by giving him the balance of the money to be repaid with interest by the Plaintiff on instalments when the vehicle is put into use.?
?The Defendant assisted the Plaintiff with the sum of N600,000.00 (Six Hundred Thousand Naira) to pay for the vehicle. The defendant also assisted the Plaintiff to buy the bucket of the vehicle for the sum of N1 Million Naira?.
?Arising from this
averments, learned Appellants Counsel submitted that the sole purpose of the Respondent?s approach to the Appellant was to ask for loan in the tune of (N600.000) Six Hundred Thousand Naira just to complete the payment of the said Mack Truck which the Defendant alleged he bought. Counsel further submitted that if that was the only obligation the Appellant discharged in the entire Mack Truck transaction between the parties, then the Respondent is accountable to the Appellant for the refund of the said loan and that the Appellant ought not to be made a joint owner of the said truck when his only involvement was to advance a loan to the Respondent in the sum of N600,000.00 for the completion of the payment of the truck. According to learned Counsel, if this would have been the position then, the Respondent?s interest would have solely been in the purported loan that was alleged to have been advanced to the Respondent.
?Counsel also drew attention to the fact that the entire pleading of the Respondent was that the Respondent was the original owner of the Mack Truck who invited the Appellant to assist him by giving him a loan for which he will
pay with interest and if that is the case, Counsel queried whether it would have been possible for Exhibit K to bear the total sum of N1,000,000.00 in the name of the Appellant. Counsel further argued that if the Appellant?s interest in the transaction was to assist the Respondent with the sum of N600,000.00 then the total sum stated in Exhibit K cannot be N1,000,000.00 but N600,000.00. Furthermore, Counsel argued that Exhibit I in these proceedings showed that the PW3 made out a letter authorizing the defendant to effect a change of name of the vehicle. It was the contention of learned Counsel that this piece of evidence supports the Appellant?s claim to ownership of the Truck in dispute. It was also argued by learned Counsel that a critical look at Exhibits A and K would show that Exhibit K preceded A though the payment was made on 9-3-2005, the number in the receipt number of Exhibit k which is 0034 preceded the number in Exhibit A which is 0035, if the Respondent had paid the alleged sum of N400,000.00 the number in the receipt would have preceded the one in Exhibit k. It was further contended by learned Counsel that if the trial judge had
critically analyzed Exhibits A, K, L, M – M21, the Court would have come to the real finding that the Appellant was actually the person that paid for the truck and as such the sole owner of the truck.
By his own admission, learned Counsel argued, that the Respondent who gave evidence as the PW1 testified that the defendant expended the sum of two million, three hundred and six thousand, three hundred naira on the vehicle. It was therefore further argued that the law is trite where an admission is made by the maker which would likely be against the maker, the Court will accept same as true. Counsel also contended that this piece of evidence is detrimental to the case put up by the Respondent as Plaintiff and only goes to strengthen the defendant?s claim of ownership. Learned Counsel further argued that there was no receipt of payment showing that the Respondent paid or made any payments at all for the Truck and that the only evidence of any payment if at all was for the sum N600,000.00 paid by the Appellant for the vehicle. Counsel contended that it was contrary to the principles of Equity and an unjust enrichment to allow the Respondent to be
co-owner of the Truck with the Appellant without proof of payment of purchase price in his name. Counsel cited the case of DPCC LTD vs. BPC LTD (2008) 4 NWLR (PT. 1077) 376 in support.
Learned Counsel told this Court that the question which the Trial Judge did not direct his mind to, is if the purpose of the Respondent meeting with the Appellant was to give him loan for the payment of the balance of the truck as alleged, would the Appellant have expended the total money N2,306,300.00 for the purpose of giving a loan to the Respondent? Counsel answered this question in the negative. According to learned Counsel, the trial judge misdirected and contradicted himself when he stated in his judgment that whilst he proceeded to make findings which actually indicated that the Appellant as defendant was indeed the sole owner, even in the face of PW1’s evidence and Exhibit L, where he said;
That is to say that the Defendant is not the actual sole owner of the truck
Counsel told Court that there are unanswered questions in this case which were not resolved by the trial judge as the Appellant could not have been
in possession of the Mack Truck assuming he was not the sole owner. Counsel referred to the evidence of the Respondent in page 148 line 6 where he said that;
I was getting into a fix, my family was in dire need of provisions, so I had to sign it, the reason I refused to sign it was because what he read out was not what we agreed on, I also gave him my passport photographs.”
Learned Counsel further drew attention of this Court to page 5 paragraph 6 lines 5, 6 and 8 of the record of appeal where the Respondent averred thus:
In an agreement which the defendant later force the plaintiff to sign, the defendant wrote a sum for in excess of the agreed amount (which said sum the plaintiff cannot remember) and refused to release the vehicle to the plaintiff unless he executes or signs the agreement
Arising from the above, Learned Counsel submitted that it is not enough for the Respondent to say that he was forced to execute what he did not read when he testified that he read it at first and did not sign because what he read did not represent what they agreed upon, and on the next day he signed the document, he alleged did not
represent what they agreed upon. Counsel further posited whether the Respondent would have been in a fix if the vehicle was his own and in his possession as the owner of the truck? He said that if evidence had been properly evaluated, the Court would not have leaned on the side of Exhibit “A”.
In addition, Counsel said that the evidence of PW2 not withstanding that he introduced the Respondent to the Appellant to secure a loan alleged that the Truck was registered in the name of the Respondent contrary to Exhibit “L” and without them producing the said document if any for the Court to see. According to learned Counsel, it is the law as seen in the case of MOTORI vs. BAUCHI (2004) ALL FWLR (PART 197) 1017 RATIO 10 that oral evidence is only admissible to throw light on the documentary evidence and that it is not admissible to contradict the direct and clear provision of a document admitted in evidence.
It was also contended by learned Counsel that there would not be sufficient oral evidence that will clear the fact that the purported owner of the truck vehicle never had Exhibit “K” and “L” in his name, neither did he produce a document which showed
where he made the final payment on the said Truck. Aside Exhibit “K”, Counsel emphasized that there was no averment in the pleading of the Respondent or in his evidence explaining why Exhibit “L” was directed to the Appellant to effect change of name of ownership to his own name before the trial Court arrived at his decision that the Defendant is not the actual sole owner of the Truck. According to learned Counsel, this area represented the crux of the matter and the area of disagreement between the parties as to who paid for the Truck. He added that the issue was not properly evaluated by the trial Court when he failed to evaluate Exhibit “L” and “M1 – M21″ in his finding. He finally submitted that these were not properly evaluated by the trial Court and urged the Court to so hold and allow the Appeal.
ISSUE TWO;
Whether the judgement of the trial Court granting the Respondent his claim was not against the weight of evidence proffered by the Respondent
Learned Appellants Counsel submitted that the trial Court was in gross error when it laid weight on the sum of N500,000.00 which he calculated as the sum paid weekly by the Respondent and held
that this would not have been the sum paid in pursuit of a Hire-Purchase agreement. Counsel said that the trial Court did not in his judgment throw any light as to how he arrived at this conclusion. It was learned Counsels submission that there was no place either from the evidence of the Appellant or that of the Respondent where they agreed that the sum of N500,000.00 was paid for the said Hire Purchase transaction weekly. As far as Counsel was concerned, it is still not clear on how the trial Judge got the calculation of the said sum of N500,000.00. Counsel however submitted that if the trial Judge had the proper calculation of what the weekly payment was considering Exhibits N-N6, tendered by the Appellant, that the Court would have delivered the judgment in favour of the Appellant. Learned Counsel also submitted that the trial Judge went ahead and made a case not founded in the pleadings of the Parties for himself. Counsel cited the case of ADETOYE vs. F.I.I.R OSHODI (2011) NWLR (PT. 1267) 357 and also the cases of ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT. 2) 379 and ARCHIBONG vs. ITA (2004) ALL FWLR (PT. 197) 939 RATIO 17 in support.
Learned Counsel further submitted that it is absurd on the part of the Respondent to approbate and reprobate at the same time, the Respondent having admitted in one breadth in his evidence before the Court that he kept to the terms of the agreement, and in another breadth that he was forced to sign Exhibit O. According to learned Counsel, it was the Evidence of the Respondent that he gave his passport photographs in pursuance of the Execution of Exhibit O and that he commenced payments in respect of Exhibit O wherein he was issued with Exhibits P-P6.
It was the submission of learned Counsel that a cursory look at Exhibits P-P6 portrayed that the payment made by the Respondent in connection thereto were made in pursuit of Exhibit O. According to learned Counsel, Exhibit O stated the amounts that were paid weekly, the said payment the Respondent made and Exhibit P-P6 was issued to him in fulfilment of Exhibit O. Counsel added that the evidence of the Respondent in this case was that he did not sign the agreement because what was read to him by the Appellant was not what they agreed upon and at the same time he gave his passport photograph willingly without any
coercion from the Appellant. Again, the Respondent despite this position still admitted to having kept to the terms of the agreement. Counsel further submitted that the law is that a party is not allowed to depart from the cases pleaded as they are bound by their pleading.
He said that Exhibit O shows that the agreement executed by the parties was made under an atmosphere devoid of possible anticipation of litigation and therefore genuine and same ought to be respected.
It was further submitted on behalf of Appellant that having kept to the terms of Exhibit O, the Respondent cannot be heard to rescind from the agreement entered in the cordial atmosphere under the guise of being compelled to do same. Counsel also submitted that it is not the duty of the trial Court to re-construe the terms of a contract entered into by parties as has been done in the instant case. Counsel cited the case of LAGOS STATE GOVERNMENT vs. TOLUWASE (2013) 1 NWLR (PT. 1336) 558. Counsel finally urged this Court to allow this Appeal and set aside the decision of the Lower Court.
SUBMISSIONS BY LEARNED RESPONDENT?S COUNSEL;
ISSUE ONE;
Whether the trial
Court properly evaluated the entire evidence of the parties when he made a finding that the appellant was not the actual sole owner of the Mack Truck?
It was the contention of learned Respondent?s Counsel that the case of the Respondent at the Lower Court was that he made an investment in the purchase of a Truck and has an interest in it which he wanted the Lower Court to protect. According to learned Counsel, the Respondent was not cross examined when he testified as the PW1 and that his evidence was neither challenged nor contradicted. Counsel said that the Lower Court who had the advantage of seeing the parties and listening to their testimonies believed the PW1. Counsel referred to page 197 lines 2 to 4 of the records of Appeal. It was the submission of Counsel that where a witness is not challenged or subjected to cross examination, the consequence is that the evidence is deemed accepted. Counsel cited the case of F. R. N. vs. SANI (2014) 16 NWLR (PT. 1433) 299 AT 377 paragraphs A-B.
?Learned Counsel contended that before the Lower Court arrived at its findings where it decided that the ownership of the Truck did not reside with the
Appellant, it comprehensively and properly analyzed or evaluated the evidence adduced before it and further contended that the Lower Court did not go outside the pleadings and evidence adduced before it especially when the Court decided from its clear observations that the evidence adduced between the parties was clearly inconsistent with that of a Hire Purchase agreement. The evidence of the PW1 which Counsel told Court and the Lower Court believed and acted upon was the one which establishes that the Respondent had an interest in the Mark Truck which the Court can protect. Counsel said that Exhibit K bears the sum of N1,000,000.00 showing that, that was what was the total sum paid for the Truck in dispute and that given that Exhibit A bears N400,000.00, it then follows that what the Appellant assisted the Respondent to pay was the sum of N600,000.00 as detailed by the Respondent in his unchallenged evidence. Learned Counsel further argued that Exhibit A was first in time and was made in an earlier date than Exhibit K. As far as Counsel was concerned, it should be the date on the documents that matter and not the number on the receipts. Apart from this, Counsel
referred to the evidence of the PW3 which was clear as to whom he sold the Truck to.
Learned Counsel argued that the Respondent?s evidence as to the expenses of the Appellant on the Truck cannot amount to an admission against interest but only goes to show that the Respondent is a truthful witness who has nothing to hide unlike the Appellant who from all indications was out to take advantage of the Respondent. According to Counsel, the evidence of the PW2 that it was he who introduced the Respondent to the Appellant was neither challenged nor contradicted and that the Lower Court evaluated the evidence adduced by the parties and made a finding of fact that the receipt Exhibit A tendered by the Respondent was genuine and was the foundational document of the whole transaction. It was contended by learned Counsel that this finding along with a related one finding that the parties contributed to the buying of the Truck were not challenged by the Appellant.
?It was further argued by Counsel that the fact that Exhibit K in this matter was written in the name of the Appellant does not make him the owner of the vehicle as it is borne by the evidence in
this case, that the Respondent identified the vehicle, agreed on the price with the owner and in fact made part payment before ever involving the Appellant to help him pay the balance of the purchase price. As far as Counsel was concerned, all the monies invested by the Appellant in the Truck transaction were at best loans while the parties agreed that the Respondent would repay same with interest. He argued that it is reasonable and in line with the customs and usages of such trade for the Respondent to allow the Appellant who loaned him money to keep the documents of the vehicle until he repays the loan collected. Furthermore, Counsel argued that what is important in determining who owns the Truck in dispute is usually not the total amount spent by each of the parties on same but how the transaction was initiated and carried out. Counsel said that the mere fact that the Appellant spent more money in securing the roadworthiness of the Truck does not translate into making the Appellant the owner of the Truck and submitted that oral evidence is often admissible to throw light on documentary evidence and circumstances that led to its being made. He added that
where such oral evidence proves the illegality of the documentary evidence, the fact that the documentary evidence was admitted in evidence would go to no issue as such document though admitted would worth no more than a piece of paper. Counsel cited the case of OLOKO vs. UBE (2004) 17 NWLR (PT. 903) 662 AT 663 on this issue. Counsel urged the Court to resolve this issue in favour of the Respondent.
ISSUE TWO:
Whether the judgement of the trial Court granting the Respondent his claim was not against the weight of evidence proffered by the Respondent?
Learned Respondents Counsel in arguing this issue was of the view that the Appellant misconceived the case put forward by the Respondent at the Lower Court and that in essence, all the Respondent presented at the Lower Court was that the Appellant assisted him by making available part of the price of the Truck to enable same to be purchased, he the Respondent having earlier paid some money to the PW3 to purchase the Truck. According to Counsel, the Respondents position was that he, along with the Appellant expended money to put the Truck on the road and that the agreement of the parties
was that the money spent by the Appellant will be repaid to him with interest, which the Respondent commenced refunding on weekly instalments before the Truck was involved in an accident. Counsel contended that it was the Appellant?s complete appropriation of the Truck to himself without taking into account the interest of the Respondent that led to the institution of this suit.
It was further contended by Counsel that the part played by each of the parties in the acquisition of the Truck in dispute is inconsistent with a Hire Purchase agreement and that the monies paid to the Appellant weekly was not in pursuance of any Hire Purchase agreement but in compliance with the agreement that the investment of the Appellant will be repaid with interest. He said that the Respondent signed the Hire Purchaser agreement under duress as the Appellant refused him possession of the Truck unless he signed same. Counsel further said that the Respondent relied on his possession and use of the Truck to fend for his family and had spent all his income on repairing the Truck and putting same on the road. He noted that the Respondents case was neither challenged
nor contradicted at the Lower Court as the Respondent was not cross examined by the Appellant or his Counsel.
Learned Counsel also argued that the Lower Court had found as a fact that the Respondent had paid a total sum of N500,000.00 to the Appellant, which finding Counsel said is consistent with the Exhibits tendered by both parties in this case and how impossible it had been for the Lower Court to contemplate a Hire Purchase transaction between the Appellant as purported owner and the Respondent as the hirer of the vehicle in the face of the initial transaction where the Respondent was said to have identified and paid part of the price of the Truck. Learned Counsel finally urged this Court to dismiss the Appeal.
?It is important to disclose here that learned Appellant?s Counsel on the 25-3-2015 filed a Reply Brief in this matter dated the 23-3-2015. The purpose of a Reply Brief it has been said on countless instances is not meant to re-ague the issues raised in the Appellant?s Brief. The Appellant?s Reply in this Appeal is therefore adjudged unnecessarily repetitive of the Appellant?s case already covered by
Appellant?s brief filed before this Court. Same is therefore struck out so long as it is not strictly limited to finding answers to questions raised in the Respondent?s Brief which the Appellant had not addressed or dealt with in the Appellant?s Brief.
RESOLUTION OF APPEAL:
What seems to lie at the crux of this matter is the question of ownership of the Mack Truck with Registration number XG 403 ABJ which is in dispute between the Appellant as Defendant and the Respondent as Plaintiff at the Lower Court. While the Appellant, on the one hand brandished a Hire Purchase agreement between himself and the Respondent which he claims was freely entered into. The Respondent, on the other hand sought to establish the contrary and got the Lower Court to agree with him that the nature of the transaction between the parties was clearly one that was inconsistent with a Hire Purchase transaction, and that while he does not claim exclusive ownership of the Truck in dispute, the Appellant also was not in any position to do as both parties invested funds in repairing and putting the Truck on the road.
?In arriving at its decision culminating in
the Lower Courts Judgment of the 19-7-2010, the Lower Court, to the best of its abilities carried out its evaluation of the entire evidence of the parties and arrived at the conclusion that the Appellant was not the sole owner of the Truck in dispute. The first issue nominated for the Courts determination by the Appellant and which is directed at challenging the Lower Courts decision on this score is encapsulated in issue one. Perhaps, the pertinent question to address here is whether the Lower Court properly evaluated the entire evidence in this case before making its findings that the Appellant was not the sole or actual owner of the Truck in dispute?
It is important to note that the issue of evaluation or appraisal of evidence by the Lower Court and the role expected of the Appellate Court when considering the Lower Courts decision on Appeal is fairly well settled in a plethora of decided cases. The classical position is as straight forward as this; it is not the business of the Court of Appeal substitute its own views for the views of the trial Judge who saw and heard all the witnesses and who, therefore was in a better
position to assess their credibility or otherwise evaluate their evidence and appraise the facts. For this reason, the Appeal Court should not and would not interfere with the verdict of the trial Court unless such verdict is shown to be perverse or is not the result of a proper evaluation of the evidence. The Supreme Court in the case of MILITARY GOV. OF LAGOS STATE & ORS vs. ADEYIGA & ORS (2012) LPELR- 7836(SC), per ADEKEYE, JSC had this to say on the subject;
It is the trial Court alone that has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance of justice tilts, makes the necessary findings of fact and comes to a logical conclusion. The evaluation remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the Court best suited to assess their credibility. It is only when it fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate
such evidence otherwise the Appellate Court has no business interfering with the findings of the trial Court on such evidence…”
The Lower Courts evaluation of the evidence adduced by the parties as it relates to the question of ownership of the Truck in dispute is contained at pages 196 to 197 of the printed records where the Lower Court carefully had the following to say on the issue;
The story of claimant is that he located the Truck from his friend Chief Ikegwuru, made a deposit of N400,000.00 as he did not have more money, one Asa took him to defendant who lent him the N600,000.00 on interest…it is noteworthy that this claimant was not cross examined. Therefore his story was not discredited and I believe him. He gave details of all the defendant did, for instance that after paying the balance of N600,000.00 defendant, paid for the bucket of N1,000,000.00. He also stated that defendant expended other monies totalling N2,306,300.00. He also spent money on the Truck. The two of the tendered receipts of purchases they made on the vehicle before it could go on the road.
I have seen exhibit A which is the
receipt issued to the claimant when he paid the deposit. I believe the claimant on this and accept that receipt as genuine and as the foundational document of the whole transaction. That receipt shows that in line with claimant?s story, he paid N400,000.00 to Chief Ikegwuru on 5-3-2005. It is indicated on it that the balance was N600,000.00 and that all the particulars had been handed over to the buyer. What I understand that happened next was that when defendant provided the balance, he had to accompany claimant to Port-Harcourt to ensure the security of his money and that must have been why the receipt for the entire payment was made in his name. The receipt in defendant?s name was made on the 9-3-2005, four days after the initial one in claimant?s name…
Since the cost of the Truck was N1,000,000.00 it means defendant paid the balance of N600,000.00 otherwise the prize(sic) would have been N1.6Million…
I also note that PW3 Chief Ikegwuru told the Court that he sold the Truck to claimant for N1,000,000.00 and he paid a deposit for N400,000.00. It is true the PW3 neither concluded his evidence in chief nor was he cross examined.
This was a man who collapsed in the witness box and was foaming in the mouth. The lawyer to the claimant thereafter alleged he was threatened and so did not come to Court again as he was afraid for his life…
Now, the parties traced their title to him and visited him together once. He was in a good or even best position to give decisive evidence as to who bought the vehicle. Out of the contending parties, who stood to gain by the failure of Chief Ikegwuru to give evidence? Definitely, it was not claimant who made repeated efforts to bring him to Court. It has to be the defendant and the reason must be because PW3 would have given evidence unfavourable to him…
Who threatened PW3? Definitely, it could not have been claimant. Then who? It must have been people or a person sympathetic to defendant. That act was most unfortunate and condemnable for one interfere (sic) with Court process. It was most anti-social and dangerous. Throughout the proceedings, the defendant never mentioned or reacted to the unfortunate incident of PW3 or the threats to his life. I cannot muster enough words to condemn that incident. People should be free to come to Court and
give evidence without intimidation or harassment.
It is clear thus far that both parties contributed to the buying of the Truck and brought it down to Umuahia. The uncontradicted evidence before me is that defendant spent a total of N2,306,300.00. I believe it as there is nothing to urge me to the contrary. Exhibit C is very instructive. Claimant made and kept painstaking records of the expenses he incurred in putting the vehicle to work. He also detailed the expenses of the defendant bringing it to the total I mentioned above. I place a lot of weight on this exhibit. The total of his own expenditure was N998,935. He is owing N141,070.
He paid a total N500,000 in instalments to the defendant. It is important to observe that Exhibit C confirms the expenses in Exhibits N-N4 tendered by the defendant. I carefully went through that Exhibit ?C and the details of the entries and I am convinced and hold that they are factual entries and represent the truth and I so hold. What I have discussed here covers defendants 1st issue and the claimant 1st issue. I resolve this issue in favour of claimant, that defendant is not
the actual owner of the Truck. In view of the analysis above I found as a fact that both parties invested in the Truck though unequally. I have given the actual amount above. To that extent, such interest ought to be and should be protected.
In seeking to pick holes with the Lower Courts evaluation of the evidence adduced so far in the matter, learned Appellants Counsel raised a number of questions which the Lower Courts analysis competently proffered answers to. It must be borne in mind that Respondent as plaintiff at the Lower Court testified-in-Chief and made assertions and disclosures which the Lower Court rightly observed went unchallenged. It is elementary position of the law that the effect of failure to cross examine a party or witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness or party. See the case of GAJI vs. PAYE (2003) 8 NWLR (PT. 823) 583 and several decisions of Courts on this issue; In the recent decision of the Supreme Court in CBN & ORS vs. OKOJIE (2015) LPELR-24740 (SC) per RHODES-VIVOUR, JSC had this to say on the subject;
My Lords, a litigant
who fails to file a statement of defence and further fails to cross examine the adverse party, in this case the Respondent, has by his own hands shut himself out from the proceedings in which the Plaintiff/Respondent makes serious allegations, claims against him. The Defendant has abandoned any defence he might have and the Court is expected to accept the Plaintiff?s unchallenged evidence to establish the facts the Plaintiff seeks to establish?.
It would be recalled that there was the noticeable presence of an Exhibit ?O? in these proceedings which is the Hire Purchase agreement executed between the parties. In the said Hire Purchase agreement executed on the 5-7-2005, the Appellant herein was designated ?owner? while the Respondent was made the Hirer. It would also be recalled that learned Appellant?s Counsel had made a heavy weather of this agreement which he maintained depicted the accurate nature of the relationship that existed between the parties shortly before things had gone sour and for which they found themselves before the Lower Court as adversaries. Respondent had opined at the trial before the Lower
Court that he was forced into signing that piece of document which bore the Hire Purchaser agreement due to the circumstances he found himself when his resources were in dire straits, in need of urgent attention and in which the Appellant unbelievably refused to shift grounds in releasing the Truck for operations.
Learned Appellant?s Counsel had to fault the Lower Court?s decision in this matter when it declined to agree that the existence of the said Hire Purchase agreement was all that was needed to govern the relationship between the parties without admitting any oral evidence. Learned Appellant?s Counsel cited the decision in the case of MOTORI vs. BAUCHI (Supra) and reiterated that the only instance oral evidence is admissible is when it is intended to throw light on a piece of documentary evidence and that oral evidence will in essence not be admissible to contradict the direct and clear provision of a document admitted in evidence. As far as this Court is concerned, that undeniably remains the accurate position of the law. Section 132(1) of the Evidence Act, 1990 effectively prohibits the admissibility of oral evidence in
contradicting, varying or altering the contents of any contract or transaction which has been reduced to the form of a document. But Section 132(1)(a) makes exceptions to the rule. This is where oral evidence may be admitted to prove fraud, mistake of fact or law etc or any other matter which, if proved, would produce any effect upon the validity of any document or any part of it which would entitle any person to any judgment, decree or order relating thereto.
In the instant case, it seems to me, and I see no reason why it should not be, that Section 132(1)(a) of the Evidence Act should not be called in aid for the purpose of subjecting the exact circumstances under which the parties had thought it necessary to execute in addition a Hire Purchase agreement to govern their hitherto, fluid relationship despite the Lower Court?s overwhelming findings of facts which aver a completely contrary position. At page 199 of the printed records, the learned trial Court made the following observations on the issue which this Court finds practically irresistible to ignore;
?The Hire Purchase agreement is dated 5-7-2005. Exhibit ?A? (made
5-3-2005) and C preceded Exhibit O the Hire Purchase agreement. I have already made a finding of fact that by Exhibit A, claimant made an initial deposit of N400,000.00. Also that by Exhibit ?C? he kept records of other monies he spent towards (some amounts are still even on credit) putting the vehicle on the road. By the admission of the defendant, claimant paid N500,000 in weekly instalments for the Truck also. So in all, claimant spent close to N2 Million on the Truck. More of these have been refunded to him while the Truck has been taken away from him. I also place some weight on the evidence of the PW2 (the said ASA) who took claimant to the defendant and introduced him.
Could claimant have expended all this amount (apart from the N500,000 weekly instalments) in pursuance of a Hire Purchase agreement? I think not. When Exhibit ?O? and defendant alleged that claimant paid N400,000 as part of the Hire Purchase agreement, they had (sic) because the payment preceded the purported Hire Purchase agreement and was made to Chief Ikegwuru and not defendant. Can the contents of Exhibit
O which is later in time, contradict and not flow from those of Exhibits A and C? This will not make legal sense. The account of claimant regarding the so called Hire Purchase agreement was neither challenged nor contradicted, I believe him.
In the final analysis and in agreement with the Lower Court, this is a proper case for which the exceptions provided in Section 132(1)(a) shall unequivocally apply to subject to scrutiny the circumstances or the antecedents of the Hire Purchase agreement brandished in this case by the defendant and to; consider the story behind the document to ascertain whether the document flows logically from the story. To this end I am simply unable to fault the Lower Courts judgment between the parties delivered on the 19-7-2010. This Appeal is to say the least is moribund and therefore fails. It is accordingly dismissed. Cost of this action is assessed as N50,000.00 against the Appellant and in favour of Respondent.
ITA GEORGE MBABA, J.C.A.: I have read, in advance, the lead judgment by my learned brother, F. O. OHO JCA. I agree
with his reasoning and conclusion, that the appeal is devoid of merits. I too dismiss it and abide by the consequential orders in the lead judgment.
PETER OLABISI IGE, J.C.A.: I agree
Appearances
Thelma N. Clement, Esq.For Appellant
AND
Emma E. Ukaegbu, Esq.For Respondent
