BENDEL PILGRIMS WELFARE BOARD v. ALHAJI WAHABI IRAWO
(1994)LCN/0206(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of January, 1994
CA/B/2/90
RATIO
ACTION: THE MAIN FUNCTION OF PLEADINGS
Morohunfola v. Kwara Tech. (1990) 4 NWLR (Pt. 145) 506: Per Karibi-Whyte, J.S.C. as follows:-
“It has often been stated and well settled that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute between the parties and to isolate those in which there is agreement. See Oduka & Ors v. Kasunmu & Anor (1968) NMLR 28 at 31.” PER JUSTIN THOMPSON AKPABIO, J.C.A.
EVIDENCE ACT: INTERPRETATION OF SECTION 96 (1)(H) AND 2(E) OF THE EVIDENCE ACT
Frequently a Bank Manager who was not at a particular Branch when a loan or overdraft was granted to a customer, usually come to court several years after to tender ledger cards. Statement of Account or application for overdraft facilities by a customer to prove the customer’s indebtedness to conform with section 96(1)(h) and 2(e) of our Evidence Act. See e.g. the case of Olasehinde v. African Continental Bank Ltd. Ltd. (1990) 7 NWLR (Pt. 161) 180. PER JUSTIN THOMPSON AKPABIO, J.C.A.
LAW OF EVIDENCE: WEHETHER U REBUTTED FACTS ARE TAKEN TO BE ADMITTED ABD THEREFORE NEED NO PROOF
Under our law unrebutted facts are taken to have been admitted and therefore need no proof. Alagbe v. Abimbola (1978) 2 S.C. 39 at 40. In effect therefore this issue must be answered in the affirmative. PER JUSTIN THOMPSON AKPABIO, J.C.A.
JUSTICES:
JOSEPH DIEKOLA OGUNDERE Justice of The Court of Appeal of Nigeria
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
Between
BENDEL PILGRIMS WELFARE BOARD- Appellant
AND
ALHAJI WAHABI IRAWO- Respondent
JUSTIN THOMPSON AKPABIO, J.C.A. (Delivering the Leading Judgment): This is an appeal from a judgment of Oki, C.J. of the then High Court of Bendel State (but now Edo State) sitting in Benin City, in Suit No. B/181/83 delivered on 27th October, 1988, wherein he dismissed in its entirety the plaintiff’s claim against the defendant for the sum of N101,001.00 being balance of debt owed the plaintiff by the defendant in respect of Hajj operations in 1977/1978. The plaintiff being dissatisfied with the said judgment has now appealed to this court.
At the trial court the claim of the plaintiff was worded as follows:-
Sometime in 1978 the plaintiff handed some control cards for pilgrims travelling to Saudi Arabia to the defendant in Benin-City within the jurisdiction of this Honourable Court. The control cards were to be sold at N691.00 per card or returned to the plaintiff. The defendant sold all the control cards, paid part of the money to the plaintiff and has since refused, neglected and failed to pay the balance to the plaintiff despite repeated demands.
The plaintiff’s claim against the defendant is for the sum of N101,001.00 (One hundred and one thousand and one naira) being the balance of the debt which the defendant owed the plaintiff.
The plaintiff also claims interest at 10% from October, 1978 till judgment in this suit.”
In the statement of claim which was later filed in this case, the facts were further elaborated upon as follows:- The plaintiff was a State owned Board set up by the then Bendel State Government to handle the welfare of pilgrims performing pilgrimage to holy lands. The defendant on the other hand was at all material times a Pilgrims Assistant and ran a Pilgrims Agency. It appears that as a Pilgrims Agent, the defendant was usually given a number of control cards to sell to intending pilgrims, and later to render account of such sales to the Board. In respect of 1977 operations, the defendant was indebted to the plaintiff to the tune of N163,277.00 (There was no indication as to how many cards were sold to realize this amount). However, in respect of 1978 operation, the evidence was that the defendant was given 200 control cards to sell at N691.00 each. The defendant sold the cards at a total cost of N138.200.00. So, as at the time of the 1978 Hajj operations the defendant was owing plaintiff the sum of N163,277.00 for 1977 plus N138,200.00 (for 1978) making a total of N301,477.00. The defendant later made various cash payments and bank lodgment to the plaintiff, which totalled N200,476.00. When the total payment of N200,476.00 was deducted from total indebtedness of N301,477.00, that left a debit balance of N101.001.00, which was the amount being claimed from the defendant with interest as mentioned above. The defendant in his statement of defence admitted at paragraph 2 that he owed the plaintiff a total of N49,752.00. He then went further at paragraph 3 to aver that he was never given 200 control cards or any card at all for 1978 as pleaded in paragraph 6 of Statement of Claim. He contended that he had paid more than the amount credited to him by the plaintiff to Alhaji Haruna Aliu, the former chairman of the Board, for onward payment into the Board’s Bank Account, and that he will tender all his receipts at the trial of this action.
However, soon after the matter went to Court, there was a move for settlement during which it was admitted on both sides that the defendant had made further payments totaling N40,000.00 during the pendency of the case in court. During that time, the defendant was also said to have developed eye trouble, which caused him to be hospitalised both in this country and overseas for a long time. Even after he came back from overseas, he still did not attend court even for one day. As a result, the matter was finally determined, based only on the evidence given by plaintiff’s only witness, one Alhaji Ahmed Tijani Momoh, (P.W.1) who was the Secretary of plaintiff’s Board.
After hearing the evidence of P.W.1, and taking addresses of learned counsel on both sides, the learned trial Chief Judge gave a reserved judgment in which he dismissed plaintiff’s claim in its entirety, without giving cognisance to the fact that defendant had himself admitted owing the sum of N49,752.00 to plaintiff, out of which N40,000.00 was said to have been paid to plaintiff during the pendency of this case in a move for settlement.
The plaintiff being dissatisfied with the said judgment now appealed to this Court on three grounds. It is unnecessary to set out the grounds as they were later subsumed by the issues for determination formulated. Briefs of arguments were later filed and exchanged and issues for determination formulated.
The plaintiff who will hereinafter be referred to as the appellant formulated four issues as follows:-
“(a) Whether the learned trial Judge was right when he dismissed the appellant’s case despite the fact that the evidence given by the appellant of the respondent’s indebtedness was never challenged by evidence in rebuttal.
(b) Whether the learned trial Judge was right in dismissing the appellants’ case in its entirety when the respondent admitted that he was indebted to the appellant to the tune of N49,752.00.
(c) Whether the learned trial Judge was right to have set the pleadings of the respondent against the unchallenged evidence of the appellant.
(d) Whether the weight of pleadings can be set against the weight of evidence.”
On the other hand, the defendant who will hereinafter be referred to as the respondent, adopted issue No. (b) formulated by the appellant, and then went further to formulate three other issues himself as follows:-
(i) Whether based on the totality of evidence adduced by the plaintiff, the plaintiff has adduced sufficient evidence to entitle it to the amount claimed in the Statement of Claim.
(ii) Whether the erroneous consideration of paragraph 3 of the defendant’s statement of defence by the learned trial Judge has occasioned any miscarriage of justice, given the evidence before the Court.
(iii) Whether the plaintiff can be entitled to the full amount claimed where evidence adduced cannot sustain claim and amount admitted is for a lesser sum.”
However, in arguing the appeal the learned counsel for the appellant found it convenient to argue issue (a) and (b) together, while issues (c) and (d) were also argued together. After a careful appraisal of all the issues formulated above, I am of the view that issues (a) and (b) formulated by the appellant are the two most important issues with practical consequences, while issues (c) and (d) are purely academic or peripheral. This appeal will therefore be disposed of under the first two issues, with issue (b) being taken before issue (a).
Re-Issue (b)
Whether the learned trial Judge was right in dismissing the appellant’s case in its entirety when the respondent admitted that he was indebted to the appellant to the tune of N49.752.00.
In the view of the learned counsel for both the appellant and the respondent, the answer to this question should be in the negative, and so there should be no controversy over it. Both agree in their submissions that it is a cardinal principle of our law as enshrined in Section 75 of our Evidence Act that “facts admitted need not be proved.” therefore since the respondent in paragraph 2 of his statement of defence had admitted owing the sum of N49,752.00., the appellant should have been credited with that amount instead of the whole claim being dismissed. There was divergence of views as to what the final judgment should have been, in view of the fact that respondent had paid a further sum of N40.000.00 during the pendency of the suit in court.
According to the appellant at p.5 of his brief:
“After these proceedings, had been started, the respondent admitted that he was owing part of the debt and actually paid N40,000.00 out of the admitted debt. (See page 25 lines 1 to 2). And the balance now outstanding and for which the appellant asked for judgment is N61,001.00.”
On the other hand, the respondent at page 6 paragraph 47 of his brief under the heading Consequence of Admission had the following to say:-
“It is pertinent however to point out that out of the sum of N49,752.00 admitted by the defendant/respondent, the sum of N40,000.00 has so far been paid leaving a balance of N9,752.00. I refer to p. 24 line 33 to p. 25 lines I – 2 of the record of appeal.”
The short of the foregoing is that while the learned counsel on both sides are agreed that judgment should have been given for the amount admitted by the respondent, they are nevertheless not agreed as to the outstanding balance having regard to the N40,000.00 later paid in court. Be that as it may, the important thing is that the learned trial Judge ought not to have dismissed appellant’s claim in its entirety without giving him credit for the amount already admitted by respondent, part of which was also already paid in court. So this issue must be answered in the negative. As to what the correct balance of the judgment debt should have been will now be considered in the next issues:-
Re-issue (a)
“Whether the learned trial Judge was right when he dismissed the appellant’s case despite the fact that the evidence given by the appellant of the respondent’s indebtedness was never challenged by evidence in rebuttal.”
Under this issue it was the contention of the appellant by their learned counsel, that the learned trial Judge was clearly wrong when he dismissed the appellant’s case. The whole evidence led by the appellants was not challenged by the respondent by evidence in rebuttal.
The case of Isaac Omoregbe v. Daniel Pender Lawani (1980) 3 – 4 S.C. 108 at 177 and other cases cited under it were relied upon as authorities. The learned trial Judge was clearly wrong when he set the pleadings of the respondent against the evidence of the appellants that was not challenged by the respondent. It was then submitted that based on the authorities cited, the learned trial Judge had no alternative but to give judgment to the appellants on their unchallenged evidence. It was trite law that cases before the courts are decided on evidence before the court and not on the pleadings unless there were no issues in dispute between the parties.
The case of Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1981) 1 NWLR (Pt. 49) 212 at 261 was cited in support. Finally, under this issue, it was pointed out that under the rule in Mogaji v. Odofin (1978) 4 S.C. 91 at 94, it was the practice in a civil case for the court to weigh the evidence of plaintiff against that of defendant in an imaginary scale of justice before deciding which was weightier. But in a situation where a defendant led no evidence at all, as in the instant case, the court had nothing to weigh against the evidence of plaintiff. Therefore, the unchallenged evidence of the plaintiff should clearly carry the day.
In reply to the above, it was submitted on behalf of the respondent that in Civil cases a plaintiff must succeed on the strength of his case and not on the weakness of the defence Kodlinye v. Odu (1935) 2 WACA 336. Therefore where the plaintiff’s case was based on hearsay or otherwise incredible evidence, the court will not act on it. Reference was made to S. 77 of our Evidence Act, which requires that oral evidence must be direct. It was then pointed out that in the instant case the plaintiff relied mainly on the evidence of P.W.1. (the Secretary of the Board) who was employed only in 1986, whereas the transaction testified about took place in 1977 – 78. P.W.1’s evidence was clearly hearsay and could not have been acted upon by the learned trial Judge. P.W.1 purported to have been speaking from records, yet not a single record of the Board was produced to substantiate the allegation that respondent was given 200 control cards to sell in 1978. None of the other documents tendered as Exhibits “C – C1, D and E” could support the appellants’ claim for the sum of N101,001.00. It was conceded that the principle enunciated in the case of Omoregbe v. Lawani (supra) is correct, but it was submitted that where evidence cannot sustain a claim. a plaintiff could not succeed merely because the evidence adduced was unchallenged.
The court was then urged to dismiss this appeal, after giving judgment for the sum admitted.
I have carefully considered all the arguments canvassed above, and came to the following conclusions:-
First there appears to have been some misapprehension on the part of the appellant as to the function of pleadings in our jurisprudence. It does not appear right to me to say that the learned trial Chief Judge should not have looked at respondent’s statement of defence at all, simply because no evidence was adduced by the defence. If the law did not allow him to look at it, how then could he have known that the respondent has admitted owing the sum of N49.752.00 as pleaded in his paragraph 22. The most important function of pleadings was recently stated by the Supreme Court in the case of Morohunfola v. Kwara Tech. (1990) 4 NWLR (Pt. 145) 506: Per Karibi-Whyte, J.S.C. as follows:-
“It has often been stated and well settled that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute between the parties and to isolate those in which there is agreement. See Oduka & Ors v. Kasunmu & Anor (1968) NMLR 28 at 31.”
From the above, it becomes clear that a trial Judge has a duty before commencement of trial to place the pleadings of both parties side by side, and go through them to see the areas in which there is disagreement. In areas where there are disagreements, issues are said to be joined, and a plaintiff will be expected to prove his case in those areas.
In the instant case the respondent admitted owing N49,752.00 out of total sum of N101,001.00 claimed. That meant that issues were joined as to the balance of N50,249.00 and the appellant was expected to call credible evidence to prove that part of his claim. According to S.77 of our Evidence Act, oral evidence must in all cases be direct, if it relates to a fact that could be seen, then it must be the evidence of a witness who said he saw that thing, if it relates to a fact that could be heard, then it must be the evidence of a witness who said he heard the fact. In the instant case, the fact that 200 control cards were given to respondent to sell to pilgrims in 1978 (which fact was denied by respondent at paragraph 3 of his statement of defence) could be proved by the evidence of a witness who either gave the cards to the respondent or was present and saw when the cards were given, or in the alternative, by the production of any document such as a receipt by means of which respondent acknowledged receipt of the said cards.
In the instant case, the appellant called only his Secretary who was employed only in 1986. Such a witness clearly could not testify about a transaction that took place in 1978. The alternative was for him to have produced a document or documents in which respondent acknowledged receipt of the control cards (since he said he was speaking from their records.) This was not an impossible task, as the same thing is usually done by Bank Managers to prove the indebtedness of their customers in Court.
Frequently a Bank Manager who was not at a particular Branch when a loan or overdraft was granted to a customer, usually come to court several years after to tender ledger cards. Statement of Account or application for overdraft facilities by a customer to prove the customer’s indebtedness to conform with section 96(1)(h) and 2(e) of our Evidence Act. See e.g. the case of Olasehinde v. African Continental Bank Ltd. Ltd. (1990) 7 NWLR (Pt. 161) 180.
In the instant case however, the appellant did not tender any document from its Board in which respondent acknowledged receipt of the 200 control cards, or even showing that such cards were forwarded to him. Under the circumstances, the learned trial Judge rightly rejected the claim concerning the 200 control cards for 1978, valued at N138,200.00. There also appears to have been a misconception on the part of learned counsel for appellant as to what is meant by “unchallenged evidence” which must entitled plaintiff to judgment under the rule in Omoregbe v. Lawani (supra). Such evidence must be the evidence or a “credible witness” and not that of just any witness who gave hearsay evidence as in the instant case. See also the case of Ajao v. Ashiru (1973) 11 S.C. 23 at 86. However, since we have earlier noted that the respondent had himself admitted owing the sum of N49,752.00, which would clearly be in respect of 1977 operation, judgment should have been given to the appellant in respect of the said sum of N49,752.00 less the sum of N40,000.00 admitted on both sides to have been paid in court, leaving a balance of N9,752.00.
There was also the fact that appellant had claimed for interest at the rate of 10% from 1978 until judgment was delivered. Since the respondent did not dispute that aspect of the claim, the said interest should also have been awarded. Under our law unrebutted facts are taken to have been admitted and therefore need no proof. Alagbe v. Abimbola (1978) 2 S.C. 39 at 40. In effect therefore this issue must be answered in the affirmative.
On the totality of the foregoing this appeal succeeds in part and it hereby allowed in part. The judgment of the lower court is hereby set aside. In its place judgment is hereby entered for the plaintiff/appellant in the sum of N49,752.00 admitted by the respondent, less N40.000.00 already paid in court during pendency of the action, leaving a balance of N9,752.00. Interest is hereby ordered to be paid on the said sum of N9,752.00 at the rate of 10% per annum from 27/10/88, when judgment was delivered at the court below till final liquidation of the judgment debt in accordance with Order 40 rule 7 of High Court Civil Procedure Rules 1988 of Bendel State. Cost of this appeal is assessed at N300.00 (Three hundred naira) against the respondent.
JOSEPH DIEKOLA OGUNDERE, J.C.A.: I am in agreement with the lead judgment of my learned brother Akpabio, J.C.A. Before J.A.P. Oki, Chief Judge, the plaintiff in paragraph 14 of the Statement of Claim, claimed a total of N101,001 being the total debt which the defendant owed the plaintiff. He also claimed 10 percent interest from October, 1978 till judgment is delivered.
The debt arose from the Hajj operations in 1977/1978 in which the defendant was an agent of the plaintiff. The defendant in paragraph 2 of the Statement of Defence admitted owing the plaintiff N49,752 only. He later paid N40,000 to the plaintiff during the trial.
The learned trial Judge dismissed the plaintiff’s claim.
In this appeal, the parties are agreed on the issues which arose out of a contractual relationship resulting in debt totaling N101,001. The plaintiff appealed. Both parties filed briefs of arguments. The learned trial Chief Judge rightly rejected the evidence of the plaintiff given in a different proceeding in proof of his case, and erred in that he dismissed the plaintiff’s case in-toto when the defendant/respondent admitted in paragraph 2 of his statement of defence that he owed N49,752 only, but later paid N40.000 to the plaintiff during the trial. The learned trial Chief Judge lost sight of those two developments and erred in so doing. The appeal therefore succeeds in part. The judgment of the lower court is hereby set aside. Judgment is hereby entered for the plaintiff/appellant to the tune of N9,752 with interest at 10 per cent per annum from the date of judgment in the court below until the balance of the debt is liquidated with N300.00 costs against the defendant/respondent.
JAMES OGENYI OGEBE, J.C.A.: I have read in advance the lead judgment of my learned brother, Akpabio, J.C.A., just delivered and I agree with his reasoning and conclusion. Accordingly, I allow the appeal, set aside the judgment of the trial court and enter judgment for the appellant against the respondent in the sum of N9,752.00 with 10% interest as in the lead judgment. The respondent shall pay costs of N300.00 to the appellant for this appeal.
Appearances
Omo-Ehizogie, Esq., For Appellant
AND
Dele Adeshina, Esq., For Respondent
