ANCHOR MARINE & OIL LIMITED v. ALUMINIUM SMELTER COMPANY OF NIGERIA
(2019)LCN/13069(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/C/237/2017
RATIO
JUDGMENT: A JUDGMENT OF A COURT OF COMPETENT JURISDICTION ALWAYS REMAINS VALID AND BINDING
The law is settled that a judgment of a Court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a Court of competent jurisdiction. Thus, a person who knows of a judgment whether null or valid, given against him by a Court of competent jurisdiction has an obligation to obey it as long as the judgment exists. See BABATUNDE V OLATUNJI (2000)2 NWLR (pt 646) 557.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
APPEAL: WHAT AN APPELLATE COURT MUST FIND OUT IF THERE IS A COMPLAINT OF IMPROPER EVALUATION OF EVIDENCE
In dealing with complaint of improper evaluation of evidence, an appellate Court is obliged to find out the following:-
(a) What was the evidence before the trial Court,
(b) Whether it accepted or rejected any evidence upon the correct perceptions,
(c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it.
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side,
(e) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regards to the burden of proof.
See DARAMOLA V A.G. ONDO STATE (2000) 2 NWLR (pt 665) 440, OSOLU V OSOLU (2003) 11 NWLR (pt 832) 608 and AREGBESOLA V ONYINLOLA (Supra).PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHETHER COURTS CAN GIVE LIFE TO CONTRACTUAL AGREEMENTS MADE BETWEEN PARTIES
The Courts on the other hand are imbued with the judicial authority and jurisdiction to give life to contractual agreements made between the parties, provided that, such contracts are rooted within the law. See OLATUNDE V O.A.U. (1998) 5 NWLR (pt 549)178 and ADEDEJI V OBAJIMI (2018) 16 NWLR (pt 1644) 146 at 165 – 166.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
ANCHOR MARINE & OIL LIMITED Appellant(s)
AND
ALUMINIUM SMELTER COMPANY OF NIGERIA Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the contract between the parties whereby the respondent herein leased its properties and also supplied diesel to the appellant. The appellant on its part supplied crane services to the respondent. The respondent as plaintiff at the trial Court took out a Writ under the undefended list against the appellant and claimed as follows:-
(a) The sum of $171,582.76 (One Hundred and Seventy One Thousand, Five Hundred and Eighty Two dollars, Seventy Six Cents) or N26,639,937.37 (Twenty Six Million, Six Hundred and Thirty Nine Thousand, Nine Hundred and Thirty Seven Naira Thirty Seven Kobo @ N155,256 per dollar being:
(i)$165,848.63 (One Hundred and Sixty Five Thousand, Eight Hundred and Forty Eight Dollars, Sixty Three Cents) or Naira equivalent of N25,749,656.70 (Twenty Five Million, Seven Hundred and Forty Nine Thousand Six Hundred and Fifty-Six Naira, Seventy Kobo @ N155,256 per dollar.
(ii)$1,576.48 or Naira equivalent of N244,765.00 per dollar, representing supply of diesel as invoices.
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(iii)$4,157.64 or Naira equivalent of N645,515.67 @ N155.256 per dollar.
(iv)10% interest on the total amount till same is paid.
The appellant as defendant filed notice of intention to defend and based on which the case was transferred to general cause list. Parties thereafter, filed and exchanged pleadings. After settlement of issues, the matter proceeded to trial wherein the respondent called one witness and tendered twenty one exhibits, marked A1 ? A5. The appellant also called one witness and tendered three exhibit marked F ? G1.
At the end of the trial, in a reserved and considered judgment delivered on 19th October, 2016 learned trial judge entered judgment in favour of the respondent and granted the all reliefs claimed. The appellant being dissatisfied with the said judgment appealed against same.
Upon the records of appeal being compiled and transmitted, the parties filed and exchanged briefs of argument. The extant briefs on which the appeal was argued are the appellant?s brief filed on 10/11/2017 and the respondent?s brief filed on 28/2/2018, both deemed as properly filed on 16/1/2019.
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The appellant distilled two issues for determination as follows:-
1. Whether from the totality of the evidence before the trial Court the respondent proved his case against the appellant and entitled to the claims awarded to him by the trial Court? (Distilled from grounds 1, additional grounds 1 and 2).
2. Whether the suit at the trial Court was not an abuse of Court process? (Distilled from ground 3).
On its part, the respondent formulated a lone issue for the determination of the appeal thus:-
Whether the claimant/Respondent proved its case (in pleadings, evidence and documents) within the law at the trial Court against the appellant to be entitled to its claims?
The respondent has also filed a notice of preliminary objection on 28/2/2018 challenging the competence of ground 3 of the notice of appeal as well as issue for determination number two of the appellant.
Proffering argument on issue number one, learned counsel for the appellant Francis Ezike Esq., submitted that the respondent has not satisfactorily established the fact of the appellant?s indebtedness and that mere averments in the pleadings on which no evidence is adduced are deemed abandoned.
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Still in argument, learned counsel submitted that the trial Court propped up the case of the respondent and thereby miscalculated the rent up to the year 2013 to arrived at an outrageous sum. He referred to AREGBESOLA V OYINLOLA (2011) NWLR (pt 1253) 458 to the effect that facts averred in the pleadings must be substantiated by evidence and in the absence of such evidence, the averments goes to no issue.
It was the appellants further submission that the respondent had admitted under cross-examination that the claim for outstanding rent as tabulated in the pleadings is higher than what is contained in the lease agreement and thus the respondent has failed to prove its case with tangible evidence. Appellant has finally argued that having rejected exhibit A in the course of the trial, it is therefore erroneous on the part of the trial Court to base part of its findings on the said document.
The appellants argument on issue two is that the trial Court has failed to consider that the respondent had filed several suit as shown in Exhibits G 1 ? G2 at the Magistrate Court seeking for recovery of possession, arrears of rent, mesne profit of
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the subject matter in Exhibits A A2 and that the joint calculation of the arrears of rent and mesne profit in the said suits at the Magistrate Court equals to the present claim and thus an abuse of Court process. Reliance was placed on AFRICAN RE-INSURANCE CORP. V JDP CONST. LTD (2003) 13 NSCQR 226 at 248 and NIMB LTD V UBN LTD (2004) 12 NWLR. This Court was urged to resolve the two issues in favour of the appellant and to allow the appeal.
In respect of its lone issue, the learned respondent?s counsel G. A. Umoh Esq referred, copiously to paragraph 3 of its amended statement of claim, paragraph 1 of the appellant?s statement of defence, Exhibit F as well as paragraph 5 of DW1s statement on Oath in submitting that the occupation of the respondent?s property continued up to the time the indebtedness of the appellant was calculated and claimed by the respondent. Also having taken legal steps as shown in Exhibits G and G1, the appellant confirmed that they are still in occupation of the respondents property. Thus the respondent has pleaded and led evidence of the appellant?s indebtedness in respect of the leased property.
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It was also submitted that in its whole pleadings and evidence the appellant did not deny or controvert the facts of the respondent and that it was not the defence of the appellant that it did not owe the respondent in respect of the property occupied by it beyond the lease agreement period. Facts not denied or controverted according to the learned counsel are deemed admitted and correct. He referred to7UP BOTTLING CO. PLC V EMMANUEL (2013) LPELR 21104 and AKANBI V ALAO (1989) NWLR (pt 108) 118.
On the respondents indebtedness for crane services, learned counsel referred to paragraph 5 of the amended statement of claim, paragraphs 8, 14 and 18 of the amended witness deposition on oath vis a vis Exhibits E1 ? E4 to contend that the appellant invoices for hiring of cranes to the respondent amounted to N27,335,956.05 out of which the respondent made direct bank transfer payments of N10,560,995.00, leaving the balance of N16,774,961.05. This amount according to the learned counsel was set off from the accumulated rent of N42,524,618.40 to reduced accumulated
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rent indebtedness to N25,749,652.35 and when the amount for diesel supply of N244,765.00 and withholding tax of N645,515.02 are added the appellant?s indebtedness to the respondent is N26,639,937.37. He thus submitted that the claims of the respondent against the appellant are very simple, bare and devoid of any technicality and the respondent actually discharged the burden of proving its claim.
Respecting the rejected document, learned counsel argued that Exhibit A was admitted along with other exhibits and that the rejected document was never marked and or used as part of the evidence by the trial Court. He referred to HAMID V HAMADU (2013) LPELR ? 22138.
The respondent further contended that the suit at the trial Court and the matters at the rent control Court nareot the same. While the claim in the suit giving rise to this appeal is for the recovery of indebtedness for various transactions, the claim in the matters before the rent control Court is for recovery of premises. It was thus submitted that different suits can emanate from the same subject matter but with different rights and reliefs.
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He referred to NDIC V UBN PLC (2015) LPELR ? 24316 and A.I. C. LTD V FAAN (2015) LPELR ? 24537.
I have stated right from the onset that the respondent has filed a notice of preliminary objection challenging the competence of ground 3 as well as issue for determination number two which was distilled therefrom. The grounds upon which the objection is predicted are as follows:-
1. Ground 3 in the Additional Notice of Appeal filed on 10/11/2017 and consequent issue number 2 in the Appellant?s Brief of Argument are incompetent before this Honourable Court.
2. The Appellant canvassed the same issue at the trial Court with a notice of preliminary objection filed on 20/1/2014 (page 43 of the Records), whereof arguments were taken and a considered ruling was delivered by the learned judge of the trial Court on 1/4/2014 (page 429 of the records).
3. The appellant did not appeal against the decision whatsoever; neither did it move the trial Court to set aside the decision.
4. The appellant did not file an appeal against the ruling at the time it was delivered within the time allowed by law to wit 14 days.
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5. Leave of this Court was not sought and obtained before the appellant incorporated ground 3 in the final appeal.
Learned counsel for the respondent also formulated a lone issue in respect of the preliminary objection thus:-
Whether ground 3 in the Additional Notice of Appeal filed on 10/11/2017 and consequent issue number 2 in the Appellants Brief of Argument are not incompetent and ought to be struck out
The respondent contented that the entire objection of the appellant at the trial Court was based on the ground that the suit was an abuse of judicial process wherein the ruling on it was neither appealed against nor did it move the trial Court to set aside the ruling and thus the said ruling subsist. It was submitted that where an appellant did not file an appeal against the ruling at the time it was delivered within the time allowed by law, leave of Court must be sought and obtained before it could be incorporated as a ground in the final appeal. Learned counsel relied on BAUCHI STATE HOUSE OF ASSEMBLY & ORS V GUYABA (2017) LPELR 43295 and UZOCHUKWU V UZOCHUKWU (2014) LPELR 24139 to the effect
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that ground 3 of the additional notice of appeal is incompetent as no leave was sought and obtained before same was incorporated as a ground of appeal to the final appeal.
Continuing, learned counsel referred to Sections 24 (2) (a) of the Court of Appeal Act and 242 (1) of the 1999 Constitution in submitting that failure on the part of the appellant to obtain leave before appealing against the interlocutory ruling of the trial Court renders the ground of appeal and the issue distilled therefrom incompetent and liable to be struck out.
In resolving this appeal, the logical starting point will be the question whether ground 3 of the notice of appeal and issue number 2 distilled therefrom is competent or not. The notice of appeal in issue here shall be recast hereunder as follows:-
ADDITIONAL GROUND 3
The suit was a gross abuse of court process.
PARTICULARS
The respondent had filed several suits (Exhibits G – G1 at page 302 – 303 of the records) at the Magistrate Court, Ikot Abasi seeking the same relief in the suit before the trial Court.
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A cursory look at the said Exhibits G ? G1 shows that they are plaints or complaints filed at the Rent Control Court of Akwa Ibom State whereby the respondent herein is seeking for possession of its houses, rents and mesne profits. The stratum of the appellant?s complain in the additional ground 3 of the grounds of this appeal is exactly the same with the grounds of the preliminary objection decided by the trial Court in its ruling of 10/4/2014. At page 434 of the record of appeal, learned trial judge observed:-
As a matter of fact the first issue of the defendant/objector and the lone issue of the claimant/respondent are basically the same and both capture the very essence of this preliminary objection and I shall adopt those issues for the determination of this objection. That is whether in view of suits Nos MOP/RP.23/2013 and MOP/RP.24/2013 pending at the Chief Magistrate?s Court Ikot Abasi (sitting as Rent Control Court), the instant suit amount to instituting multiplicity of actions between the same parties, over the same subject matter and on the same issue (s).
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In dismissing the objection at page 437 of the record of appeal, learned trial judge found that:-
A comparative analysis of the three suits show that whereas the parties are the same, the subject matters and the issues are not the same, so it cannot be said that the process in this suit vis – a – vis that in the two suits of the Rent Control Court are aimed at achieving the same purpose. They are not certainly aimed at achieving different purpose.?
As posited by learned counsel for the respondent, the appellant neither appealed against the above ruling within the stipulated time nor sought and obtained leave of Court to combines this appeal with the earlier interlocutory ruling.
By virtue of Section 24 (2)(a) of the Court of Appeal Act, 2004) the periods prescribed for appealing against a final decision is three months and 14 days for interlocutory decision. It follows that where an appellant has failed to appeal within the period of time so stipulated, he must, to have a competent appeal, obtain leave to appeal out of time. Although a party can include an appeal against a ruling on an interlocutory application when he comes to appeal against final judgment, an appellant wishing to adopt such procedure would need to obtain leave
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of Court. SeeOGIGIE V OBIYAN (1997)10 NWLR (pt 534) and ONWE V OKE (2001) 3 NWLR (pt 700) 406 at 416 – 417.
The law is settled that a judgment of a Court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a Court of competent jurisdiction. Thus, a person who knows of a judgment whether null or valid, given against him by a Court of competent jurisdiction has an obligation to obey it as long as the judgment exists. See BABATUNDE V OLATUNJI (2000)2 NWLR (pt 646) 557.
In the instant case, the interlocutory ruling of the trial Court of 10/4/2014 subsists and the failure of the appellant to obtain leave of this Court before combining this appeal with the previous ruling on interlocutory matter renders ground 3 of its grounds of appeal incompetent. Likewise issue number 2 distilled from the incompetent ground 3 is also afflicted by the same virus. They are both incompetent and same are accordingly struck out.
Having struck out appellant?s issue number 2, there is still issue number one which questions the
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evaluation of evidence by the trial Court. In dealing with complaint of improper evaluation of evidence, an appellate Court is obliged to find out the following:-
(a) What was the evidence before the trial Court,
(b) Whether it accepted or rejected any evidence upon the correct perceptions,
(c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it.
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side,
(e) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regards to the burden of proof.
See DARAMOLA V A.G. ONDO STATE (2000) 2 NWLR (pt 665) 440, OSOLU V OSOLU (2003) 11 NWLR (pt 832) 608 and AREGBESOLA V ONYINLOLA (Supra).
The crux of the appellant?s complaint centred on the attitude of the trial Court to the testimony of the respondent?s witness as contained in his depositions and which the appellant argued was not supported by any of the exhibits tendered. It was also contended that the respondent?s depositions were thoroughly discredited and contradicted during cross-examination.
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I have stated that the provenance of this appeal is the contract between the parties and that relationship were embodied in the lease agreements dated 10/10/2010, 13/4/2010 and 11/7/2011 respectively marked Exhibits A, A1 & A2. Where parties have embodied the terms of their contract in a written document, extraneous evidence is not required whether to add, subtract from, vary or contradict the terms of their written document. The Courts on the other hand are imbued with the judicial authority and jurisdiction to give life to contractual agreements made between the parties, provided that, such contracts are rooted within the law. See OLATUNDE V O.A.U. (1998) 5 NWLR (pt 549)178 and ADEDEJI V OBAJIMI (2018) 16 NWLR (pt 1644) 146 at 165 – 166. The fuss in this case seemed to be largely on tenor of the lease agreements, Exhibits A – A2 as well as the rent deductions and the diesel sales in the invoices, Exhibits E – E4. The relevant portions of the lease agreement respecting the berger yard read as follows:
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NOW IT IS HEREBY AGREED as follow:-
“In consideration of the payment of the rent herein reserved and of the covenants and conditions hereinafter contained on the part of the Lessee, to be performed and observed the Lessor hereby demised unto the Lessee workshop/office building, measuring 2913.97m2 and land space measuring 8000m2 situate in the former BERGER YARD (hereinafter called the demised property) TOGETHER with right in common with the tenants or occupiers of the adjoining buildings, to use the driveway and pathways serving the demised premises TO HOLD the same unto the Lessee for a period of THREE (3) years commencing from 1st January, 2010 and terminating on the 31st December, 2012 paying during the term a monthly rent of $3000 per month or $36,000 annually for each contract year upon receipt of the Lessor’s invoices net withholding tax or its Naira equivalent at the prevailing bank exchange rate. The Lessor reserves the right to review the rent fee on yearly bases within effective period of the present agreement. The technical condition of the demised property is reflected on Appendix A of this agreement.
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Article 2 subsection (viii) thereof states that:-
At the expiration or sooner determination of the said term to peaceably yield up the Lessor the demised property in such state of repair condition order and preservation as shall be in accordance with the covenants on the part of the Lessee to be observed.
A further look at the lease agreements Nos 106 MOOIH054 of 13/4/2010 and 106MOO110041 concluded on 10/10/2010 same relates to Houses Nos 83B & 89 and 87 for a period of one year commencing from 1st April, 2010 and terminating on the 31st March, 2011 at $1200 and $1500 per month for Houses 83B and 89. House 87 is also for a yearly tenancy from 1st October 2009 and terminating on 30th September, 2010 on a total rent of N1500 per month.
In paragraphs 3 ? 6 of the amended statement of claim at pages 102 ? 104 of the record of appeal, the respondent averred as follows:-
3. The claimant granted lease of it property to the Defendant as follows:
i) House 87, Ferrostaal Camp, Ikot Abasi on Agreement. No. 106M0001H041 dated 10/10/2010.
ii) 83B and 89 Ferrostaal Camp, Ikot Abasi on Agreement No. 106MOOO1HO73 dated 11/7/2011.
iii) Workshop/Office Building Ikot Abasi, Ibom State
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on Agreement No. 106MOOO1HO54 dated 13/4/2010
4. The Claimant supplied diesel to the Defendant totaling N244,765.as follows:
(i) Invoice No. 118 – N54,000.00
(ii) Invoice No. 001 – 9,000.00
(iii) Invoice NO.100 – 18,000.00
(iv) Invoice No. 122 – 51,975.00
(v) Invoice No. 127 – 18,500.00
(vi) Invoice No. 115 – 54,000.00
(vii) Invoice No. 143 – 20,790.00
(viii) Invoice No. 144 – 18,500.00
Total – N244,765.00
Invoices are frontloaded to be relied upon at the trial.
5. The claimant hired Defendant?s crane for the period 25/1/20120 to 11/6/2013 as follows:
(i) 2010 = 8,785,000.00
(ii) 2011 = 5,378,833.00
(iii) 2012 = 10,034,997.05
(iv) 2013 = 3,139,166.00
Details of invoice for the above years are frontloaded.
6. The claimant paid and settled accounts for (5) above as follows:-
(i) (1) to (18) was paid for and settled as at 31/7/2010 while (19) to (36) was paid through bank transfers as per payment vouchers frontloaded.
(ii) 2011 (1) to (14) was paid through bank transfers as per payment vouchers while (15) to (26) were set off from part of the rent.
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(iii) 2012 were all set off by part of the rent.
The above averments are in tandem with PW1?s deposition in paragraphs 6 – 13 at pages 110 – 112 of the record of appeal.
Although the appellant has admitted occupying the respondents property in Exhibits A A2, she is however emphatic of discharging her obligations to the respondent. In paragraphs 3 6 of PW1s deposition at page 289, he averred:-
3. That the Defendant has been discharging her obligations to the Claimant.
4. That the payments made by the Defendant to the Claimant for supply of diesel was deducted from the invoice issued to the Claimant by the Defendant for hiring of Defendants? crane.
5. That several invoices from 2010 ? 2013 were sent to the Claimant and which the Claimant deducted her rent but failed to acknowledge same in their claim. The copies of invoices sent to the claimant vide the Defendant?s letter dated June 20th, 2013 is hereby pleaded and shall be relied upon by the Defendant. The Claimant is hereby given notice to produce the said invoices at the hearing of this suit.
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6. That the Defendant has never neglected or refused to pay her rent as agreed in tenancy agreement between her and the claimant and that she has been discharging his obligation to the claimant but that the claimant is bent on embarrassing her.
On the strength of the above and considering the contents of Exhibits A1 – 2 and F, it is manifestly clear that the appellant retains occupation of the leased property up to when the appellant?s indebtedness was calculated. In response to the respondent?s letter of 10/6/2013 Exhibit F, the appellant vide Exhibit D expressed her desire of continuing with the lease and also offered to reconcile the correct indebtedness. Thus, the only outstanding issue is the exactitude of the appellant?s indebtedness, reckoning the outstanding payment for diesel supply and withholding tax. There is also the issue of crane services rendered by the appellant to the respondent. In paragraphs 11 ? 20 of the amended deposition, at pages 333 ? 336, PW1 states:-
11. That within the period ending 31/9/2013 the Defendant?s outstanding on the reconciled statements between the parties stood at N9,050,499.00 (Nine Million and Fifty
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Thousand, Four Hundred and Ninety-Nine Naira). This amount is deducted from the total amount of N35,690,43.37 owed by the Defendant to the Claimant. The Defendant now owes $171,582.76 (One Hundred and Seventy One Thousand, Five Hundred and Eighty Two Dollars, Seventy Six Cents) or N26,639,937.37 (Twenty Six Million, Six Hundred and Thirty Nine Thousand, Nine Hundred and Thirty Seventy Naira, Thirty Seven kobo) @ N155,256 per Dollar. Agreements Nos. 106MOOO1HO41, 106MOOO1HO54 and 106MOOO1HO73 are accordingly frontloaded. Also frontloaded/pleaded are the Reconciliation Statements marked Bilateral Settlement Reconciliation Report and Alscon Plc/Anchor Marine Oil & Gas Ltd Reconciliation Statement Summary.
12. That the Balance of N75,316.25 in favor of the Defendant on the Bilateral Settlement Reconciliation Report signed by both parties for the period ending 31/7/2010 was transferred to the next Reconciliation Statement as at 31/9/2013 whereof a difference of $171,582.76 (One Hundred and Seventy One Thousand, Five Hundred and Eighty Two Dollars, Seventy Six Cents) or 26,639,937.37 (Twenty Six Million, Six Hundred and Thirty Nine Thousand, Nine Hundred and Thirty Seven Naira, Thirty Seven kobo) @ N155.256 per Dollar was established in favour of ALSCON PLC.
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13. That on the schedule (DETAILS OF INVOICES FOR THE YEAR 2010) for plant hiring issued by the Defendant, Settlement was done up to No. 18 on that list, the settlement as at 31/7/2010 referred to in (6) above. The Details of Invoices for year 2010, 2011, 2012 and 2013 are frontloaded/pleaded.
14. That the outstanding amounts in the Invoice details in (7) above are as follows:
(i) 2010 (from No.19) = 3,332,500.00
(ii)2011 = 5,378,833.00
(iii)2012 = 10,034,997.05
(iv) 2013 = 3,139,166.00
Total = 21,855,496.05
Balance b/f as at 31/7/2010 (6)
above = 75,316.25
Total due to Anchor Marine
= 21,930,812.30
Out of the above total N21,930,812.30, ALSCON PLC set off/paid 12,910,313.30 and total amount payable to Anchor Marine is N9,050,499.00 or Dollar equivalent of $58,292.54 as at 31/9/2013. Payment Vouchers are frontloaded/pleaded.
15. That the total amount of outstanding rent, diesel sales and withholding tax due to ALSCON is N35,690,436.37 or Dollar equivalent of $229,875.28 as at 31/9/2013.
?16.That the difference between N35,690,436.37 or Dollar
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equivalent of $229,875.28 as at 31/9/2013 and N9,050,499.00 or Dollar equivalent of $58,292.54 is N26,639,937.37 or $171,582.76.
The Alscon Plc/Anchor Marine Oil & Gas Ltd Reconciliation Statement Summary will be relied upon at the trial.
17. That the claimant?s claim against the defendant as follows is not to embarrass the Defendant:
(a) The sum of $171,582.76 (One Hundred and Seventy One Thousand, Five Hundred and Eighty Two Dollars, Seventy Six Cents) of N26,639,937.37 (Twenty Six Million, Six Hundred and Thirty Nine Thousand, Nine Hundred and Thirty Seven Naira, Thirty Seven kobo) @ N155,256 per Dollar being:
(i)$165,848.63 or Naira equivalent of N25,749,656.70 @ N155.256 per Dollar representing outstanding amount owed on Lease Agreements stated above up to 31st September, 2013.
(ii)$1,576.48 or Naira equivalent of N244,765.00 @ N155.256 per Dollar representing unpaid amount for supply of diesel as per invoices.
(iii)$4,157.64 or Naira equivalent of N645,515.67 @ N155.256 per Dollar representing 5% withholding tax.
(b)10% Interest on the total amount till same is paid up.
18.That simply put, the Defendant is
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indebted to the Claimant in the sum of N3569043637.00 thus:
(i) Lease Agreement = N25,749,656,70.00
(ii) Diesel sales = N244,765.00
(iii) Withholding tax = N644515.67
Set-off cash payment via bank transfer by claimant
(i) 2010 = N8,785,000.00
(ii) 2011 = N5,378,833.00
(iii) 2012 = 10,034,997.05
(iv) 2013 = 3,139,166.00
Total = 21,855,496.05
19.That payment were agreed by the parties to be in the prevailing exchange rate; and the Central Bank of Nigerias regulatory policy as at 2012 fixed the exchange rate of Naira per Dollar at N155 (One Hundred and Fifty Five Naira).
20. That the invoices issued by the Defendant to the Claimant was not sufficient to off-set Defendant?s indebtedness to the claimant for lease agreement, withholding tax and diesel supplies as at 31/9/2013. Claimant acknowledged all reductions made as evinced by the several bank transfers to the defendant; after all reductions, the defendants outstanding as at 31/9.2013 is as stated in paragraph 5 of the claimant?s amended statement of claim.
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?Learned appellant?s counsel has faulted the findings of the trial Court contending that the Court only relied on the deposition of the respondent?s witness which was not supported by any tangible evidence. It is imperative to state in clear terms that once the statement of a witness is adopted, it becomes his evidence in chief and the Court is under a duty to evaluate same and not merely to treat same as mere assertions requiring additional proof. See AGAGU V MIMIKO (2009) 7 NWLR (pt 1140) 342.
On the appellants complaint that the trial Court relied on a document that was rejected in giving its judgment. The law is settled that once a document is rejected, it can no longer form part of the evidence upon which Court can base its decision. The document that was rejected in this case is invoice 00000000002 of 7/01/2013 for 100 liters of diesel totaling to N18,000.00 It was nowhere shown that in arriving at its decision, the trial Court has relied on the said rejected document and a calm perusal of the rejected document shows that it was not even given any identification number by the trial Court. The findings of the trial Court is therefore not predicated on it.
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Appellant also made an allusion on contradiction of PW1s deposition and his answers to questions in the course of cross-examination. At page 468 of the record of appeal, pw1 said:-
It is not right to say that the amount we are claiming for supply of diesel and rent and the supply of crane services is higher than for the supply of diesel, claim and rent actually accrued.
The total amount for rent of N13,590,000.00 added to the N244,000.00 for diesel supplied to the defendant is N13,834,675.00.
The total amount for the crane services is N27,224,141.00 for the period 2010 ? 2013. It is not correct that what we are claiming is higher than the amount calculated here.
Part of the N27,224,141.00 was used to upset the rent as stated in paragraph 9 of my deposition.?
A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated not when there is just a minor discrepancy. Two pieces of evidence contradict one another when they are themselves inconsistent. Thus, it is not all contradictions that result in the rejection of the evidence affected and that it is only those contradictions that are material
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and result in miscarriage of justice that warrant rejection of such evidence. See BASSEY V STATE (2012) ALL FWLR (pt 633) 1816 at 1832. The evidence of pw1 as contained in his two depositions are not contradictory to his evidence extracted through cross-examination in respect of the appellant?s indebtedness to the respondent.
I have elsewhere in this judgment spelt out the criteria of sifting improper evaluation of evidence which ordinarily is the exclusive preserve of the trial Court. And where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court has a duty to re-assess and evaluate the evidence in order to reach a just decision. See ARIJE V ARIJE (2018) 16 NWLR (pt 1644) 67 at 83 – 84. Also in KEYAMO V FOLORUNSO (2011) 9 NWLR (pt 1252) 209 at 243 – 244, it was held that an appellate Court looks and bases its decision at correctness of the decision and not necessarily at the reason for the decision. Thus, the paramount consideration for the appellate Court is whether the decision is
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right and not necessarily whether the reasons are right. See also NDAYAKO V DANTORO (2004) 13 NWLR (pt 887) 189 and A.G. LEVENTIS (NIG) PLC V AKPU (2007) 17 NWLR (pt 1063) 416.
In the instant case, the respondent as plaintiff in the Court of trial was consistent and emphatic as to the period within which the indebtedness of the appellant was calculated. It is also crystal clear that the learned trial judge had properly appraised and ascribed probative values to the totality of the evidence adduced by all the parties. It is thus my considered view that the trial Court rightly held that the respondent has proved its case and therefore entitled to all the reliefs claimed.
In conclusion, I hold that this appeal is devoid of merit. It is hereby dismissed with costs of N50,000 awarded against the appellant and in favour of the respondent.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion and I also agree that the appeal lacks merit and ought to be dismissed. I abide with the order as to costs.
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YARGATA BYENCHIT NIMPAR, J.C.A.: My brother M. L SHUIABU, JCA afforded me the privilege of reading in advance a copy of the judgment just delivered and I agree with him in the reasoning and conclusion. I also agree that the appeal lacks merit and should be dismissed and I abide by other orders made therein.
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Appearances:
Christiana Okon (Legal officer)
Francis Ezike, Esq. for Appellant
For Appellant(s)
O. B. Akpan, Esq.For Respondent(s)
Appearances
Christiana Okon (Legal officer)
Francis Ezike, Esq. for AppellantFor Appellant
AND
O. B. Akpan, Esq.For Respondent
