BLACKSTONE CRUSHING CO. LTD v. SAMOBA (NIG) LTD (2020)

BLACKSTONE CRUSHING CO. LTD v. SAMOBA (NIG) LTD

(2020)LCN/14684(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, October 16, 2020

CA/IB/247/2015

RATIO

COURT: PRIMARY ROLE OF THE TRIAL JUDGE

Now, it is settled law that evaluation of evidence and ascription of probative value to such evidence are the primary role of the trial Judge. This is so because, unlike the trial Court, an appellate Court lacks such advantage. Accordingly, so long as the trial Court has properly and effectively performed its primary role, the appellate Court will not interfere. However, where the trial Court failed to properly perform its primary role of evaluating evidence and ascribing probative value to same, the Appellant has a legal duty to intervene. See Uzuda & Ors v. Ebigah & Ors (2009) 15 NWLR (pt.1163) 1; Ayuya & Ors v. Yonrin & Ors (2011) LPELR – 686 (SC) and Ajagbe v. Idowu (2011) LPELR – 279 (SC). In the case of Dike v. A.G. and Commissioner for Justice, Imo State & Ors (2012) LPELR – 15383 (CA); I observed as follows:
“…In the evaluation of such evidence, especially where the parties have both called evidence, either oral or documentary, a trial Court is enjoined to put the evidence on an imaginary scale, by putting the evidence led by the Plaintiff on one side of the scale and proceed to put the evidence adduced by the Defendant on the other side of the scale, and weight them together so as to see which side of the imaginary scale tilts or preponderates. In doing that, the trial Court has the duty to consider the totality of all relevant evidence adduced before it…”
Similarly, in the case of Ayuya & Ors v. Yonrin & Ors (supra), Onnoghen, JSC as he then was said:
“It is settled law that it is the primary duty of the trial Court to evaluate the evidence produced by the contending parties in support of their contentions before arriving at its decision one way or the other. It does so by putting the totality of the acceptable testimony adduced by both parties on an imaginary scale with the evidence of the Plaintiff on one side while that of the Defendant is put on the other side. The Court then weights them together to see which is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses.” PER TSAMMANI, J.C.A.
COURT: DUTY OF THE TRIAL JUDGE WHEN EVALUATING EVIDENCE

What stands out is that, in the evaluation of the evidence adduced at the trial and ascription of probative value thereto, the trial Court is enjoined to consider the totality of the oral and documentary evidence led by both parties before arriving at a decision one way or the other. Where the trial Court fails to evaluate such evidence, or evaluates the evidence led by one side only, such a decision would be held on appeal to be perverse and a breach of the fundamental right to be heard by the other side damnified. See Morenikeji & Ors v. Adegbosin (2003) 8 NWLR (pt.823) 612, Ovunwo v. Woko (2011) 17 NWLR (pt.1277) 522 at 547 and Halima Hassan Tukur v. Garba Umar Uba (2012) LPELR – 9337 (SC). Thus, in the case of Senator Ademola Adeleke v. Mr. Wahab Adekunle Raheem & Ors (2019) LPELR – 48729(CA), my learned brother, Agim, JCA relied on the decision of the Supreme Court in Adeyemo v. Arokopo (1988) LPELR – 173 (SC) to observe as follows:
“A trial cannot be fair and dispassionate where a trial Court fails to consider and evaluate material evidence essential to a proper and just determination of the case before it. It was a gross violation of the Appellant’s right to a fair hearing for the trial Court to have ignored and refused to consider evidence that obviously would resolve the case in his favour…” PER TSAMMANI, J.C.A.
APPEAL: DUTY OF THE APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE

Now, it should be noted that, the duty of an appellate Court, which this Court is, is to ascertain whether or not there is evidence on which the trial Court acted. Thus, where this Court finds that there was dereliction on the part of the trial judge in the evaluation of the evidence, then it must step in to do what the trial Court should have done. This Court will do that by re-evaluation of the evidence on record. See Nagogo v. Congress for Progressive Change & Ors (2013) 2 NWLR (pt.1339) 448; Adebayo v. Adusei (2004) 4 NWLR (pt.862) 44 and Lawal v. Dawodu (1972) 8 – 9 SC 83 at 114 – 115. That is the purpose of Section 15 of the Court of Appeal Act, 2004. See also Buku Nyati & Anor v. Bulus Galadima(2015) LPELR – 25693 (CA); Orianwo v. Okene (2002) 14 NWLR (pt.786) 156 at 182 – 183 and Olale v. Ekwelendu (1989) 4 NWLR (p.115) 326. Thus, my learned brother Ndukwe – Anyanwu, JCA in the case of Ekasa & Ors v. ALSCON Plc (2014) 16 NWLR (pt.1434) 542 held as follows:
“Where a trial Judge fails to answer and resolve issues placed before it, the Appellate Court under Section 15 of Court of Appeal Act will resolve such issues. Where there is sufficient material before an appellate Court in respect of an issue which a trial Court had failed to treat or advert its mind to, such issue, shall be resolved by the appellate Court. An order of retrial will therefore not be necessary in such action..” PER TSAMMANI, J.C.A.

EVIDENCE: GENERAL PRINCIPLE OF LAW ON BURDEN OF PROOF

Now, the general principles of law is that the burden of proof of any claim rests on the party who would fail if no evidence at all were led by either side. It therefore means that the burden is on the Plaintiff to proof that which he claims because if no evidence is led in the case, he will fail. That follows that, the Plaintiff bears the burden of adducing evidence in proof of his claim. That is the ultimate burden. However, in Court Proceedings, the burden of proof of particular facts may shift from the Plaintiff to the Defendant and vice-verse, depending on the state of the pleadings. However, as stated above, the ultimate burden of proof lies at the doorsteps of the Plaintiff who will be damnified if no evidence was adduced by either side. See Sections 131, 132 and 133 of the Evidence Act. See Larmie v. DPMS Ltd (2006) 18 NWLR (pt.958) 438; Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143 and Awuse v. Odili (2005) 16 NWLR (pt.952).
It would be seen therefore that the duty of a Claimant is to adduce credible evidence which will discharge the burden on him to proof his claim as required by law. It is where the Plaintiff has led such credible evidence which prima facie proofs his claim, that the Defendant would be required to lead evidence in rebuttal. Where the Plaintiff fails to adduce such evidence, his claim is liable to be dismissed even where the Defendant leads no evidence. See Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (pt.606) 330 and Longe v. FBN Plc (2006) 3 NWLR (pt.967) 228. Thus, in Itauma v. Akpe-Ime (2000) 7 SC (pt.11) 24, the Supreme Court held as follows:
“In civil matters, the onus of proving an allegation is on the Plaintiff and the onus does not shift until he has proved his claim on preponderance of evidence and balance of probabilities. Parties in civil cases must proof their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case.”
It follows therefore that a Defendant in an action need not prove anything where the Defendant has not succeeded in making out a prima facie case. In other words, it is only where a prima facie case has been made out by the Plaintiff that it will be necessary for the Defendant to lead evidence to rebut the evidence led by the Plaintiff. See Jolayemi v. Olaoye (2004) 12 NWLR (pt.887) 322; Ashiru v. Olukoya (2006) 11 NWLR (pt.990) 1 and C.C.C.T.C.S. Ltd & Ors v. Ekpo (2008) 6 NWLR (pt.1083) 362. This legal principle was reiterated by Aderemi, JSC in Iroagbara v. Ufomadu (2009) 11 NWLR (pt.1153) 587 as follows:
“In civil cases, the like of the one under consideration,….the rule is that the burden of proof rests on the party (whether Plaintiff or Defendant), who substantially asserts the affirmative of the issue. When it is said that onus of proof shifts from Plaintiff to Defendant and vice versa from time to time as the case progresses, it means no more than the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given an either side. However, let me quickly say that if a Plaintiff on whom always rests the onus of proving that affirmative of what he asserts, no burden shifts to the Defendant unless he has counter-claimed…”
All a Plaintiff is required to do is to adduce credible and admissible evidence to establish the facts asserted. The issue will be decided on the quality and probative value of such evidence and not the quantum of evidence or number of witnesses. In other words, cases are proved by the quality and not the quantity of evidence adduced. See Agbi v. Ogbe (2006) 11 NWLR (pt.990) 65; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (pt.1182) 618 and Mr. Sunday Ikenne v. The State (2018) LPELR – 44695(SC). PER TSAMMANI, J.C.A.

SUBPOENA: DISTINCTION BETWEEN A SUBPOENA DUCESTECUM AND SUBPOENA DUCESTECUM AD TESTIFICANDUM

Now, to resolve this issue, it would be necessary to understand the differences between a person who is merely on a subpoena ducestecum and one who is on subpoena ducestecum ad testificandum. A subpoena ducestecum is a process initiated by a party to a dispute in Court, compelling a person to produce certain specified documents relevant to facts in issue in the litigation and which documents are in the custody and control of such person or body served with the process. A person attending Court under a subpoena ducestecum need not be sworn and therefore cannot be cross-examined. Therefore, a person merely called to produce documents under subpoena ducestecum need not be sworn if the document requires no proof or is to be proved by other means; and if not sworn he cannot be cross-examined. Accordingly the mere fact that the person on subpoena ducestecum was erroneously sworn before he produced and tendered the documents will not derogate from the purpose for which he was subpoenaed. See Obi-Odu v. Duke (2006) 1 NWLR (pt.1079) 114 and Edoho v. Attorney-General of AkwaIbom & Ors (1996) 1 NWLR (pt.425) 488 at 498. The position of the law has been accorded statutory imprimatur by Section 219 of the Evidence Act, 2011 which stipulates that:
“219. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.”
By Section 218 of the Evidence Act (supra) where a person who has been summoned merely to produce documents produces such documents in Court he would be discharged of his obligation under the subpoena. It does not matter if he produces such documents personally or through some other person. Where such a person has produced the documents as required by the subpoena, the burden will then be on the person at whose instance the subpoena was issued to prove those documents by having them admitted in evidence by tendering either from the bar (if not objected to), or demonstrating it’s purpose through a person who has the capacity to do so. In other words, the person subpoenaed to produce documents merely places the documents before the Court where it may be identified, demonstrated and made use of by the party who summoned them, through other witnesses. See Famakinwa v. University of Ibadan (1992) 7 NWLR (pt.255) 608; Baraya v. Abdullahi (2017) LPELR – 43371 (CA), Akono v. Nigerian Army (2000) All FWLR (pt.28) 2212 and Haske v. Magaji & Ors (2008) LPELR – 8330 (CA). PER TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

BLACKSTONE CRUSHING COMPANY LTD APPELANT(S)

And

SAMOBA NIGERIA LIMITED RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Oyo State High Court of Justice, delivered by F. I. Oyelaran, J on the 3rd day of October, 2014 in Suit No: I/4/2011.

By a Writ of Summons and Statement of Claim both dated and filed on the 05/01/2011, the Respondent as Plaintiff claimed the following reliefs:
1. The sum N25,526,500.00 (Twenty-Five Million, Five Hundred and Twenty-Six Thousand, Five Hundred Naira) damages for breach of contract.
2. N25,000,000.00 aggravated damages.

Same was accompanied by the Claimant’s, the Written Statements on Oath of those witnesses and the List of Documents to be relied upon at the trial. In response, the Defendant/Appellant filed a Statement of Claim and Counter-Claim on the 26/01/2011. However, by leave of Court, the said Statement of Defence and Counter-Claim was amended. The Amended Statement of Defence and Counter-Claim was accordingly filed on the 30/01/2013. After denying the claim, the Defendant Counter-Claimed as follows:
(i) Damages for libel; and
(ii) An injunction restraining the Claimant by itself, its servants or

agents or otherwise from further publishing the said or any similar libel of and concerning the Defendant.

Same was also accompanied by the necessary front-loaded documents as required by the Rules of the trial Court. After the pre-trial conference, the matter went to trial with the Plaintiff/Respondent calling two witnesses. The Defendant/Appellant called only one (1) witness. Several documents were also tendered and admitted in evidence. At the close of evidence, the parties filed Written Addresses and in a judgment delivered on the 03/10/2014, the learned trial Judge granted all the reliefs sought by the Plaintiff/Respondent and dismissed the Counter-Claim. Being dissatisfied with the decision, the Defendant filed this appeal.

The Original Notice of Appeal consisting of three grounds of appeal was filed on the 15/10/2014. Same was amended by leave of this Court granted on the 20/5/19. This appeal was therefore heard on the 2nd Amended Notice of Appeal filed on the 01/3/2019 but deemed filed on the 20/5/2019. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was filed on the 18/01/2019 but deemed

filed on the 20/5/2019. Six issues were raised therein for determination as follows:
1. Whether the judgment of the trial Court is not a nullity for failing to evaluate all the evidence adduced as well as the legal submissions proffered in support of the Appellant’s case. [Ground 1].
2. Is the Court below not wrong in law in holding that the Respondent has proved its case on the preponderance of evidence? [Grounds 4 & 5].
3. Whether the award of N25,526,500.00 (Twenty-Five Million, Five Hundred and Twenty-Six Thousand, Five Hundred Naira) and N10,000,000.00 (Ten Million Naira) against the Appellant as damages for breach of contract and aggravated damages respectively is not wrong in law in an action for breach of contract. [Grounds 2 & 6].
4. Is the Court below not wrong in law in treating the evidence of Appellant’s witness as hearsay evidence on the ground that he gave evidence from the Appellant’s record? [Ground 3].
5. Is the judgment of the trial Court not a nullity for its failure to allow Appellant cross-examine? [Ground 7].
6. Is the Court below not wrong in law in relying on Exhibits

“C1” and “C1A” in awarding judgment against the Appellant? [Grounds 8, 9 and 10].

The Respondent’s Brief of Arguments was filed on the 19/11/2019 but deemed filed on the 09/7/2020. Like the Appellant, six (6) issues were raised by the Respondent for determination, as follows:
1. Whether the lower Court failed to evaluate all the evidence adduced as well as legal submissions proffered in support of the Appellant’s case?
2. Whether the Respondent has proved its case on preponderance of evidence?
3. Whether the award of N25,625,500 and N10,000,000 against the Appellant as damages for breach of contract and aggravated damages respectively is not right in law in an action for breach of contract?
4. Whether the lower Court’s treatment of the evidence of the Appellant’s only witness as hearsay has occasioned miscarriage of justice?
5. Whether failure of the defence counsel to raise objection about the status of CW1 did not amount to waiver of legal right?
6. Whether the Court below was not right in relying on Exhibit “C1” and “C1A”?

It should be noted also that, the Appellant filed and served an Appellant’s Reply Brief of Arguments. It was filed on the 20/01/2020 but deemed filed on the 09/7/2020.

I have considered the entirety of the record of appeal, and the issues formulated by both parties, and I am of the view that the issues formulated by the Appellant are sufficient for the determination of this appeal. This appeal shall therefore be determined on the issues formulated by the Appellant. In the determination thereof, I shall consider issues 1 and 5 together while issues 2, 4 and 6 shall be treated together. Issue 3 will therefore be treated alone. I begin with issues 1 and 5.

Learned Counsel for the Appellant began by citing the cases of Labour Party v. INEC (2009) LPELR – 1732 (SC); Yar’adua v. Yandoma (2014) LPELR – 24217 (SC); Odedo v. PDP (2015) LPELR – 24738 (SC) and Kajubo v. State (1988) LPELR – 1646 (SC) to define what a “nullity” is. That, a null judgment might be correct but would still be nothing due to the failure of the Court to comply with certain fundamental requirements in the process of adjudication. That, where a party

contents that the judgment of Court is a nullity, it presupposes that such judgment cannot confer any right or impose any obligation because:-
(a) The very foundation of the trial is null and void; or
(b) The trial Court had no jurisdiction to try the offence; or
(c) Where there is serious blunder or error in the course of the trial.

The case of United Bank for Africa Plc v. Chief Etim Okon Edet (2014) LPELR – 24243 (CA) was then cited to submit that, a judgment will be a nullity if the Court is not competent to make it due to either lack of jurisdiction or same fundamental initiating vice which would warrant the judgment to be set aside ex debito justiciae. It was thus argued that, failure to evaluate evidence of a party may also vitiate the judgment. The cases of Terver Kapine (alias Jahrule) v. The State (2017) LPELR – 42991 (CA); Lagga v. Sarhuna (2008) LPELR – 1740 (SC); Wabara v. F.R.N. (2010) LPELR- 11050 (CA) and Oyewole v. Akande (2009) LPELR – 2879 (SC) were cited in support. The case ofMemudu Ajiboye v. Alhaji Oloyede Ishola (2006) LPELR – 301 (SC) was cited to further submit that, where there is

failure to evaluate and ascribe probative value to evidence adduced at a trial, such judgment will be set aside for being a nullity. The case of Da Kabirikim v. Hon. Justice Luke Emefor (2009) LPELR – 902 (SC) was further cited to submit that, failure to evaluate evidence is a gross violation of the right to fair hearing.

Learned Counsel for the Appellant went on to submit that, while the learned trial Judge evaluated the evidence of the Respondent, it failed to evaluate that of the Appellant on the inexcusable reason that, the witness got his information from the records of the Appellant. It was then submitted that, there is no law that says that a witness cannot rely on the records of his employers to support his testimony. Learned Counsel for the Appellant then contended that, failure to evaluate the evidence of DW1 amounted to denial of fair hearing. That, if the learned trial Judge had evaluated the evidence of DW1, judgment would not have been in favour of the Respondent. The case of Agip (Nig.) Ltd v. Agip Petrol Int’ (supra) was then cited in urging us to resolve this issue infavour of the Appellant.

Another point relied on in

raising the issue of nullity of the judgment, is that, the trial Court did not allow it (Appellant) to cross-examine CW1, yet relied on Exhibits “C1” and “C1A” tendered through CW1 in determining the case in favour of the Respondent. That the said CW1 was in Court on the basis of a subpoena ducestecum and therefore, there was no need for him to depose to any Written witness Statement on Oath as required by the Rules of the trial Court. That the Appellant was however not allowed to cross-examine CW1 but the Court relied heavily on his unsworn testimony or evidence in entering judgment against the Appellant. The case of Christopher Egowa v. The State (2018) LPELR – 44511 (CA) was cited in support. Furthermore, that the Court unilaterally changed the subpoena ducestecum adtestificandum to a subpoena ducestecum thereby refusing to swear CW1 on oath before allowing him to testify and tender the documents which were admitted as Exhibits “1” and “1A” respectively. On that basis, learned counsel for the Appellant urged us to set aside the judgment of the trial Court for being a nullity.

In response, learned counsel for the Respondent contented that, in evaluating the evidence placed before it, by the parties, the trial Court is duty bound to consider the totality of the evidence led by each of the parties. That such evaluation entails the assessment of same so as to give value or quality to it. That in the evaluation of evidence, the trial Court is bound to consider the entirety of the evidence adduced on an issue at the trial in order to determine whether or not it supports the Plaintiff’s Claim. The cases of Adesina v. Ojo (2012) 10 NWLR (pt.1309) 552; Eyiboh v. Abia (2012) 16 NWLR (pt.1325) 51 and Mogaji v. Odofin (1987) 4 SC.91 were cited in support.

Learned Counsel for the Respondent went on to submit that, evaluation of evidence remains the exclusive preserve of the trial Court which had the opportunity of hearing and watching the demeanor of the witnesses that testified before him. That, it is where the trial Court fails to evaluate properly, or at all, that an appellate Court would interfere by re-evaluating such evidence. The cases of Adusei v. Adebayo (2012) 3 NWLR (pt.1293) 524 and Mil. Gov; Lagos State v. Adeyiga (2012) 5 NWLR (pt.1293) 291

were cited in support. The case of Oluyede v. Access Bank Plc (2015) 17 NWLR (pt.1489) 596 was then cited to submit that, it is not sufficient for an Appellant to allege that the trial Court did not evaluate the evidence before it; but he must go further to point out the error he complains about and that if such errors were corrected, the decision of the trial Court will not stand. That in the instant case, the Respondent tendered twelve (12) documents to prove its case but the Appellant tendered no document to disprove the Respondents claim as the only witness called by them gave his testimony from records in the office of the Appellant, which record was not tendered before the Court.

probative value to same, the Appellant has a legal duty to intervene. See Uzuda & Ors v. Ebigah & Ors (2009) 15 NWLR (pt.1163) 1; Ayuya & Ors v. Yonrin & Ors (2011) LPELR – 686 (SC) and Ajagbe v. Idowu (2011) LPELR – 279 (SC). In the case of Dike v. A.G. and Commissioner for Justice, Imo State & Ors (2012) LPELR – 15383 (CA); I observed as follows:
“…In the evaluation of such evidence, especially where the parties have both called evidence, either oral or documentary, a trial Court is enjoined to put the evidence on an imaginary scale, by putting the evidence led by the Plaintiff on one side of the scale and proceed to put the evidence adduced by the Defendant on the other side of the scale, and weight them together so as to see which side of the imaginary scale tilts or preponderates. In doing that, the trial Court has the duty to consider the totality of all relevant evidence adduced before it…”
Similarly, in the case of Ayuya & Ors v. Yonrin & Ors (supra), Onnoghen, JSC as he then was said:
“It is settled law that it is the primary duty of the trial Court to evaluate the

evidence produced by the contending parties in support of their contentions before arriving at its decision one way or the other. It does so by putting the totality of the acceptable testimony adduced by both parties on an imaginary scale with the evidence of the Plaintiff on one side while that of the Defendant is put on the other side. The Court then weights them together to see which is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses.”
What stands out is that, in the evaluation of the evidence adduced at the trial and ascription of probative value thereto, the trial Court is enjoined to consider the totality of the oral and documentary evidence led by both parties before arriving at a decision one way or the other. Where the trial Court fails to evaluate such evidence, or evaluates the evidence led by one side only, such a decision would be held on appeal to be perverse and a breach of the fundamental right to be heard by the other side damnified. See Morenikeji & Ors v. Adegbosin (2003) 8 NWLR (pt.823) 612, Ovunwo v. Woko (2011) 17 NWLR (pt.1277) 522 at

547 and Halima Hassan Tukur v. Garba Umar Uba (2012) LPELR – 9337 (SC). Thus, in the case of Senator Ademola Adeleke v. Mr. Wahab Adekunle Raheem & Ors (2019) LPELR – 48729(CA), my learned brother, Agim, JCA relied on the decision of the Supreme Court in Adeyemo v. Arokopo (1988) LPELR – 173 (SC) to observe as follows:
“A trial cannot be fair and dispassionate where a trial Court fails to consider and evaluate material evidence essential to a proper and just determination of the case before it. It was a gross violation of the Appellant’s right to a fair hearing for the trial Court to have ignored and refused to consider evidence that obviously would resolve the case in his favour…”
I have carefully perused the judgment of the trial Court at pages 316 – 329 of the record of appeal. I must say that after careful perusal, it is apparent that the learned trial Judge failed woefully in his primary duty of evaluation and ascription of evidential weight to the totality of evidence adduced before him. The learned trial Judge, after summarizing the evidence adduced and submissions of Counsel, merely

observed at page 325 of the records as follows:
“From the pleadings of both parties, the evidence led by the witnesses for both parties, the exhibits tendered by the parties, the issues formulated by the parties in their submissions, the duty of the Court is to see whether the Claims of both parties have been proved with the preponderance of evidence required.”
Without more, the learned trial judge then held at page 326 of the records as follows:
“The testimony of the Claimant’s witness i.e Engineer Kolawole Osho described how the asphalt bought from the Defendant reacted. The witness was also able to identify the exhibits tendered by the Claimant. From the evidence adduced and the exhibit tendered by the Claimant can it be said that the Claimant has proved its case with the preponderance of evidence required.”
The learned trial judge then answered the poser in page 327 of the record of appeal as follows:
“I am of the sound view that the claimant has proved its claims with the preponderance of evidence required.
The Defendant has not been able to challenge the proof of the breach as the only

witness called by him got his information from records. He could therefore not controvert most of the averment.”
It is obvious to me, as evidenced by the records, that the learned trial judge did not exhibit dispassionate consideration of the totality of the evidence adduced by each party. He merely arrived at an answer without demonstrating how he arrived at that answer. The law requires of a trial Court to demonstrate by reference to the evidence, both oral and documentary adduced at the trial and the applicable law, how he arrived at his answer. Just like in mathematics, it is not a valid solution to give an answer without showing how the answer was arrived at. In other words, evaluation requires more than bare assertions in the judgment that there was evaluation of the evidence. The process or exercise of such evaluation of evidence must be obvious on the printed record. This is lacking in the instant case. SeeMr. Sunday Okpala & Ors v. Ichie A. C. Okeke (2015) LPELR – 24637 (CA); Basil v. Fajebe (2001) 11 NWLR (pt.725) 592 at 608-609 per Ayoola, JSC and N.E.P.A. v. Arobieke (2006) 7 NWLR (pt.979) 245 at 272.

there is sufficient material before an appellate Court in respect of an issue which a trial Court had failed to treat or advert its mind to, such issue, shall be resolved by the appellate Court. An order of retrial will therefore not be necessary in such action..”

That, I shall proceed to do, as there is sufficient evidence on record upon which the issues between the parties can be properly determined. To that end, the issue of Cross-Examination or denial to cross-examine him, is in my view, is one of evaluation. That issue has been re-argued by the Appellant in issue 6. Consequently, same will be considered under issue 6. It should be noted however, that I had stated earlier on, that issues 2, 4 and 6 will be considered together.

Now, in arguing issue two (2), learned counsel for the Appellant contended that, the Respondent’s case is that it bought 1,095.92 tons of asphalt from the Appellant for use on a 5.5 Kilometers road but part of the asphalt used on a portion of the road measuring 1.2 kilometers failed due to poor quality of the said asphalt. That to prove her case, the Respondent called CW1 and CW2 who testified that the

Appellant supplied 1,095.92 tons of asphalt to the Respondent but that one-third of the asphalt supplied was not fit for the purpose thereby leading to the collapse of the road. That, the Appellant on the other hand, contended that the asphalt it supplied to the Respondent was of good quality and that if a small portion of the road failed, it must be due to the negligence of the Respondent’s engineer(s). Furthermore, that the Respondent did not inform the Appellant of the purpose of buying the asphalt; and that the Respondent indeed inspected the asphalt before buying same. It was then submitted that, in the circumstances, the Respondent who alleged breach of the contract had a duty to prove such breach in order to entitle it to damages.

Learned Counsel for the Appellant then cited the case of Abba v. Shell Petroleum Development Co. of Nigeria Plc (2013) LPELR – 20338 (SC) to submit that, contracts for sale of goods in Oyo State are regulated by the Sales of Goods Law of that State. That in an action for breach of contract of sale of goods, the Claimant must plead the terms of the contract and how the breach occurred. That in proving such

breach, the Claimant must establish that the party in breach had acted contrary to the terms of the contract either by non-performance, or by not performing the contract in accordance with its terms, or by wrongful repudiation of the contract. The case of Pan Bisbilder (Nig.) Ltd v. First Bank of Nigeria Ltd (2000) LPELR – 2900 (SC) was cited in support.

Learned Counsel for the Appellant went on to submit that, the contract for the supply of asphalt is embodied in Exhibit “C2” which is the receipt issued to the Respondent by the Appellant for the supply of 1,095.92 tons at the sum of N14,795,000.00. That, other than the price and quantity of asphalt supplied, no other conditions or terms of the contract are stipulated. It was then contended that, the case of the Respondent is not that the Appellant did not supply the asphalt but that the asphalt supplied was of low quality. That to succeed, the Claimant/Respondent had the onus to place the grade of the asphalt it needed before the Court and the quality supplied by the Appellant. That in any case, even if the Claimant/Respondent claimed that the asphalt supplied was not fit for the

purpose, the contract did not state the purpose for which the asphalt was to be deployed was not stated in the contract. It was then submitted that, in a contract for sale of goods, the principle is caveat emptor because in law, there is no implied warranty or condition as to quality or fitness for any particular purpose; except:-
(a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skills and judgment.

That part from (a) above, non of the exceptions stipulated in Section 15(a) of the sales of Goods Law of Oyo State was pleaded. That indeed, Section 15(b) of the Sale of Goods Law (supra) stipulates that, if the buyer has examined the goods, there shall be no implied conditions as regards defects which such examination ought to have revealed. That in the instant case, the Respondent did inspect the asphalt through its employees who were present when same was loaded into her (Respondent’s) trucks. It was thus submitted that, the Respondent did not prove its case as to entitle it to judgment for breach of contract

because, the goods were delivered by the Appellant.

Learned Counsel for the Appellant went on to submit that, the learned trial Judge gave judgment to the Respondent without considering the evidence of the Appellant as it assumed that the testimony of the Appellant’s only witness (DW1) was hearsay because DW1 stated that he got his information from the Appellant’s record. That it was on that basis that the learned trial Judge held that the Respondent has proved its case on the preponderance of evidence. It was then argued by learned counsel that, on the authority of Interdrill (Nig.) Ltd v. U.B.A. Plc (2017) LPELR – 41907 (SC), the trial Court erred in holding that the DW1 could not give evidence from his employer’s record. That due to that error, the trial Court totally ignored the evidence of DW1 and therefore failed to put such evidence on the imaginary scale of justice before coming to the conclusion that, the scale of justice preponderates in favour of the Respondent. We were accordingly urged to correct this error by re-evaluating the evidence of DW1 along with that of CW1 and CW2.

In support of the argument raised

above, learned counsel for the Appellant conceded that hearsay evidence is not admissible in law by virtue of Section 38 of the Evidence Act, 2011, but submitted that Sections 41 and 51 of the same Evidence Act provide for exceptions to the inadmissibility of hearsay evidence. That, the main exception pertains to records made or kept in the course of regularly conducted activity of a business, organization, occupation or calling, whether for profit or not. That, it is on that basis that the Supreme Court held in the case of Interdrill Nig. Ltd v. U.B.A. Plc (supra), that since a company is a legal fiction which must necessarily act through natural persons, its officials can give evidence to establish any transaction entered into by the company notwithstanding that such witness was not one who personally participated in it or was not in the employ of the company at the time the transaction took place. It was then submitted that, though DW1 was not in the employment of the Appellant at the time of the transaction, his testimony based on the records of the Appellant is competent and admissible. We were accordingly urged to hold that the learned trial Judge was

wrong when he excluded the admissible evidence of DW1.

On Exhibits “C1” and “C1A” which were argued under issue 6, learned counsel for the Appellant contended that, CW1 who was a witness on subpoena ducestecum adtestificandum tendered Exhibits “C1” and “C1A” as an expert. That the learned trial Judge suo motu held that the witness was on a subpoena ducestecum, hence cannot be put under oath before testifying and cross-examined by the Appellant. That despite so finding, the learned trial Judge acted on the evidence of CW1 and Exhibits “C1” and “C1A” in giving judgment against the Appellant. The said CW1, one Engineer Taiwo Ajetunmobi a staff of the Osun State Ministry of Works was in Court on behalf of the Permanent Secretary who was served a subpoena to tender the Result of the test conducted on samples on the asphalt tendered to the said Ministry for analysis. The said subpoena which is in page 202 – 203 of the record of appeal (was on the Permanent Secretary Ministry of Works and Transport, Osun State) was a subpoena ducestecum adtestificandum.

On that note, I observe that, learned counsel for the Appellant contended that the said Exhibits “C1” and “C1A” contain forensic analysis of the asphalt that allegedly was not of merchantable quality and therefore not fit for the purpose. The cases of A.N.P.P v. Usman (2011) All FWLR (pt.463) 1292 at 1344 and Asikpo v. Access Bank Plc (2015) LPELR – 25845 (CA) were then cited to submit that, being a scientific report, the trial Court ought to have been wary of admitting same because being a report prepared at the behest of one of the parties to the dispute, there is the danger of entrenching bias.

Learned Counsel for the Appellant went on to submit that, there is a difference between a subpoena ducestecum ad testificandum and a subpoena ducestecum. That in the case of a subpoena ducestecum ad testificandum, the witness summoned will tender documents and also testify while a person under subpoena ducestecum is only required to produce and place the documents subpoenaed before the Court but cannot testify. The cases of The State v. Idenyi (2013) LPELR – 22580 (CA); Lagos v. Jibrin (2008) LPELR – 4419 (CA); Owolabi v. Bakare (2013) LPELR

– 21968 (CA) and Haske v. Magaji (2009) All FWLR (pt.461) 807 were cited in support. That in the instant case, CW1 whom the Court erroneously held was on subpoena ducestecum tendered Exhibits “C1” and “C1A” but same were not tendered through another witness; and the result is that Exhibits “C1” and “C1A” were improperly admitted in evidence but merely dumped on the Court. That, the trial Court was therefore wrong to have relied on same in favour of the Respondents. That having been wrongly admitted, the learned trial Judge should have expunged same in the course of writing his judgment. We were accordingly urged to resolve issues 2, 4 and 6 in favour of the Appellant.

In response, learned counsel for the Claimants/Respondent cited Sections 131, 132 and 133 of the Evidence Act, 2011 to submit that, the basic principle underlying burden of proof is that, he who asserts the affirmative of an issue has the burden of proving the existence of such issue. That the burden of proof is discharged on preponderance of evidence. It was then submitted that, in the instant case, the Respondent tendered twelve

exhibits but the Appellant tendered none. That from the pleadings and evidence on record, the case of the Respondent was that the asphalt it bought from the Appellant was of bad quality. That in proof of its case, the Respondent subpoenaed a witness who tendered two test results which confirmed that the asphalt supplied was of bad quality. Furthermore, that the Respondent suffered damage as a result of the bad quality of the asphalt supplied. That the Appellant on the other hand, did not tender any other evidence or test result to show that the asphalt it supplied the Respondent was of good quality.

Learned Counsel for the Respondent went on to submit that, since the trial Court had two test results and three receipts evidencing purchase as asphalt to repair damaged road caused as a result of the bad asphalt supplied by the Appellant, on the Respondent’s side of the imaginary scale as justice while the Appellant had none, the trial Court was right in holding that the Respondent proved its case on the balance of probability.

Learned Counsel for the Respondent went on to submit that, an Appellate Court is bound by the record and therefore has

no jurisdiction to go outside the record and draw conclusions unsupported by the record. The case of C.O.P v. Okoye (2012) 14 NWLR (pt.1320) 369 was cited in support. It was then contended that from the record, the trial Court did not reject the evidence of DW1 or hold same to be hearsay because he got all his evidence from record. That while DW1 said he got his facts from the records of the Defendant but the records were not tendered. Furthermore, that DW1 testified that investigations revealed that the asphalt sold to the Respondent by the Appellant was of very high quality and merchantable but no evidence was brought to prove that assertion. It was then contended that in any case, wrongful admission or rejection of evidence will not ipso facto affect the judgment of the Court, and therefore, even where the trial Court treated the evidence of the Appellant’s witness as hearsay, it will not affect the judgment as such evidence could not controvert the Claimant/Respondent’s claim. The case of Ibuluya v. Dikibo (1976) All NWLR 316 was cited in support.

Now, the general principles of law is that the burden of proof of any claim rests on the

party who would fail if no evidence at all were led by either side. It therefore means that the burden is on the Plaintiff to proof that which he claims because if no evidence is led in the case, he will fail. That follows that, the Plaintiff bears the burden of adducing evidence in proof of his claim. That is the ultimate burden. However, in Court Proceedings, the burden of proof of particular facts may shift from the Plaintiff to the Defendant and vice-verse, depending on the state of the pleadings. However, as stated above, the ultimate burden of proof lies at the doorsteps of the Plaintiff who will be damnified if no evidence was adduced by either side. See Sections 131, 132 and 133 of the Evidence Act. See Larmie v. DPMS Ltd (2006) 18 NWLR (pt.958) 438; Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143 and Awuse v. Odili (2005) 16 NWLR (pt.952).
It would be seen therefore that the duty of a Claimant is to adduce credible evidence which will discharge the burden on him to proof his claim as required by law. It is where the Plaintiff has led such credible evidence which prima facie proofs his claim, that the Defendant would be required to lead evidence in

rebuttal. Where the Plaintiff fails to adduce such evidence, his claim is liable to be dismissed even where the Defendant leads no evidence. See Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (pt.606) 330 and Longe v. FBN Plc (2006) 3 NWLR (pt.967) 228. Thus, in Itauma v. Akpe-Ime (2000) 7 SC (pt.11) 24, the Supreme Court held as follows:
“In civil matters, the onus of proving an allegation is on the Plaintiff and the onus does not shift until he has proved his claim on preponderance of evidence and balance of probabilities. Parties in civil cases must proof their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case.”
It follows therefore that a Defendant in an action need not prove anything where the Defendant has not succeeded in making out a prima facie case. In other words, it is only where a prima facie case

has been made out by the Plaintiff that it will be necessary for the Defendant to lead evidence to rebut the evidence led by the Plaintiff. See Jolayemi v. Olaoye (2004) 12 NWLR (pt.887) 322; Ashiru v. Olukoya (2006) 11 NWLR (pt.990) 1 and C.C.C.T.C.S. Ltd & Ors v. Ekpo (2008) 6 NWLR (pt.1083) 362. This legal principle was reiterated by Aderemi, JSC in Iroagbara v. Ufomadu (2009) 11 NWLR (pt.1153) 587 as follows:
“In civil cases, the like of the one under consideration,….the rule is that the burden of proof rests on the party (whether Plaintiff or Defendant), who substantially asserts the affirmative of the issue. When it is said that onus of proof shifts from Plaintiff to Defendant and vice versa from time to time as the case progresses, it means no more than the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given an either side. However, let me quickly say that if a Plaintiff on whom always rests the onus of proving that

affirmative of what he asserts, no burden shifts to the Defendant unless he has counter-claimed…”
All a Plaintiff is required to do is to adduce credible and admissible evidence to establish the facts asserted. The issue will be decided on the quality and probative value of such evidence and not the quantum of evidence or number of witnesses. In other words, cases are proved by the quality and not the quantity of evidence adduced. See Agbi v. Ogbe (2006) 11 NWLR (pt.990) 65; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (pt.1182) 618 and Mr. Sunday Ikenne v. The State (2018) LPELR – 44695(SC).

In the instant case, the Claimant who is now Respondent in this appeal called two witnesses in proof of its case. The first witness (CW1) was on a subpoena to tender certain documents. Those documents which were tendered and admitted in evidence as Exhibits “C1” and “C1A” are “Bitumen Extraction Test (Wearing Course)” conducted by the Osun State Ministry of Works and Transport – Geo-Technics and Structures Center – LABORATORY Reports both dated the 3rd of December, 2010. The second witness (CW2) is an

employee of the Claimant/Respondent. He deposed to a Written Statement on Oath and Exhibits “C2”, “C3”, “C4”, “C5”, “C6(i)” & “(ii)”, “C7” & “(ii)” and “C8(i)” and “(ii)” were tendered through him. Learned Counsel for the Appellant has argued that Exhibits “C1” and “C1A” were wrongly admitted through CW1 who was on subpoena ducestecum. That even if he was on subpoena ducestecum ad testificandum, the learned trial Judge erred in not allowing the witness to be cross-examined.

sworn and therefore cannot be cross-examined. Therefore, a person merely called to produce documents under subpoena ducestecum need not be sworn if the document requires no proof or is to be proved by other means; and if not sworn he cannot be cross-examined. Accordingly the mere fact that the person on subpoena ducestecum was erroneously sworn before he produced and tendered the documents will not derogate from the purpose for which he was subpoenaed. See Obi-Odu v. Duke (2006) 1 NWLR (pt.1079) 114 and Edoho v. Attorney-General of AkwaIbom & Ors (1996) 1 NWLR (pt.425) 488 at 498. The position of the law has been accorded statutory imprimatur by Section 219 of the Evidence Act, 2011 which stipulates that:
“219. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.”
By Section 218 of the Evidence Act (supra) where a person who has been summoned merely to produce documents produces such documents in Court he would be discharged of his obligation under the subpoena. It does not matter if he produces such documents

personally or through some other person. Where such a person has produced the documents as required by the subpoena, the burden will then be on the person at whose instance the subpoena was issued to prove those documents by having them admitted in evidence by tendering either from the bar (if not objected to), or demonstrating it’s purpose through a person who has the capacity to do so. In other words, the person subpoenaed to produce documents merely places the documents before the Court where it may be identified, demonstrated and made use of by the party who summoned them, through other witnesses. See Famakinwa v. University of Ibadan (1992) 7 NWLR (pt.255) 608; Baraya v. Abdullahi (2017) LPELR – 43371 (CA), Akono v. Nigerian Army (2000) All FWLR (pt.28) 2212 and Haske v. Magaji & Ors (2008) LPELR – 8330 (CA).
I have carefully perused the record of appeal in this case. It is obvious that, in an effort to proof its case, the Respondent as the Claimant applied for and a subpoena was issued on the Permanent Secretary Ministry of Works and Transport, Osun State. It was dated the 14/3/2013 and titled “SUBPOENA DUCES TECUM AND

TESTIFICANDUM” which is different from a “subpoena ducestecum”. I will return to that shortly. I notice however that, at the hearing, one Engineer Taiwo Ajetunmobi (CW1) appeared in Court on behalf of the Permanent Secretary aforesaid and produced the documents summoned in the subpoena. Learned Counsel for the Claimant/Respondent then applied to tender the documents. Though there was objection from the Appellant’s Counsel on the grounds that the documents were not signed, the learned trial Judge discountenanced the objection and admitted the documents as Exhibits “C1” and “C1A” respectively.
It is clear to me, based on the law as set out in the authorities cited above, that the learned trial Judge erroneously treated CW1 as a witness consequent upon the subpoena ducestecum. If he was on a subpoena ducestecum only, his duty was to produce the documents only. Having produced the documents in Court, the Claimant/Respondent had the onus to prove same by tendering them through another witness. I am of the view that the procedure adopted by the learned trial Judge was wrong. The result is that Exhibits

“C1” and “C1A” were merely dumped on the Court without any evidence to demonstrate the purpose for which they were tendered. In that state, they are not entitled to be accorded any evidential or probative value.
I note however that, the summons issued was a subpoena ducestecum ad testificandum. In law, where a subpoena ducestecum ad testificandum is issued, the person summoned is required to produce documents and in addition testify or give evidence. Such evidence will be given under oath and such witness will be cross-examined by the opponent. In other words such a person is required to go into the witness both before he will give evidence either on oath or affirmation. See Onyemelukwe v. Alberto (2001) 26 WRN 140 at 144; Akintayo v. Jolaoye (2010) LPELR- 3688(CA). Famakinwa v. Unibadan (supra) and Ibrahim v. Ogunleye & Ors (2010) LPELR – 4556(CA). There is nothing on the record that indicate that the learned trial judge complied with the requirements of a subpoena ducestecum ad testificandum. Indeed, the learned trial judge erroneously treated the subpoena issued by him as merely to produce documents as revealed in page 307

of the record of appeal where he held as follows:
“It is my view that the rule is not applicable to a witness on subpoena dues term (sic), who is a witness ordered by the Court to do something. The objection is over-ruled and moreso he is not a witness on oath as he was not sworn.”
Clearly, the learned judge did not appreciate the issues involved. Truly if CW1 was on mere subpoena ducestecum, he could not be sworn nor could he give evidence. However, the subpoena issued on the Permanent Secretary was to produce documents and to also testify. The learned trial judge suo motu excluded the CW1 from entering the witness box to testify and be cross-examined. That was a grave error which shielded the CW1 from being sworn in or affirmed to give evidence as the subpoena had commanded him to do. By so doing the Appellant was denied the right to cross-examine CW1 which is a breach of the Appellant’s Fundamental Right guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. See Aregbesola v. Oyinlola (2009) 14 NWLR (pt.1162) 429; Abubakar v. Yar’Adua (2008) 4 NWLR (pt.1078) 538 andLasun v. Awoyemi (2009) 16

NWLR (pt.1168) 513 at 550 paragraphs E – F where Ogunbiyi, JCA (as he then was) said:
“With the Tribunal having issued subpoena ducestecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such Tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience. The case of the Appellant… has not received fair treatment in the circumstance.”
It is therefore my view that the testimony of CW1 and Exhibits “C1” and “C1A” tendered and admitted through him are bereft of evidential value. The right to cross-examine is an integral aspect of the right to fair hearing. Where such evidence is admitted and utilized by the trial Court, it would amount to a denial of the right to fair hearing. The result is that the learned trial judge acted perversely when he relied on Exhibits “C1” and “C1A” to find for the Respondent.

Now, it is not in doubt that the Claimant/Respondent’s Claim in the Court below was for damages for breach of contract. The Claimant/Respondent claimed that the Appellant

sold to it 1,095.92 tons of asphalt for the sum of N14,795,000.00. That the asphalt proved to be of poor quality as it failed to overlay for lack of sufficient binders. The Claim is therefore in breach of a contract of sale of goods. Section 3 of the Sale of Goods Law, Cap. 149, Laws of Oyo State 2000 defines a contract of sale as follows:
3:(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price……
(2) A contract of sale may be absolute or conditional
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sale.
The essential characteristics of a contract for sale of goods is that there shall be a transfer of property in the goods from the seller to the buyer for a price in money. It therefore means that the main object of a contract of sale is the transfer of

property from the seller to the buyer for a price in money. In the instant case, there is no dispute that the property in the asphalt had passed from the seller (Appellant) to the Respondent (buyer). Indeed, the evidence on record is that the required tons of asphalt was loaded into the Respondent’s trucks in the presence of its officials and driven out of the Appellant’s premises. The price was paid as per Exhibit “C6” (i) and (ii). It is therefore not in doubt that the properly in the goods contracted had passed to the Respondent and delivery thereof completed. This is clear in the evidence of the Appellant in paragraphs 7, 8, 9 and 10 of the written Statement on Oath of DW1. Therein, DW1 deposed as follows:
7. Sometimes in April, the Claimant paid the sum of N14,795,000.00 to the Defendant for 1,095.92 Tons of Asphalt. The Defendant issued Receipt to evidence the payment.
8. Sometimes in July 2010, the officials of the Claimant came to the Defendant’s factory, examined the asphalt and started taking delivery of the asphalt.
9. The Claimant brought its own trucks and its officials inspected and examined the

asphalt as each truck was loaded. The asphalt loaded into the trucks of the Claimant were of very high quality and merchantable. The Claimant’s officials were satisfied with the quality of the asphalt loaded into the Claimant’s trucks from the Defendant’s factory.
10. The delivery of the asphalt from Defendant’s factory ended around the end of August, 2010.
The Claimant/Respondent filed a Reply to the Appellant’s Statement of Defence and Counter-Claim. CW2 also filed a written Statement on Oath in support of the averments. Nowhere in the said Reply nor the written deposition of CW1 were paragraphs 7, 8, 9 and 10 stated above denied or controverted. It is obvious therefore that property in the 1,095.92 tons of asphalt had passed from the Appellant (seller) to the Respondent (buyer) as at the end of August, 2010. The law is that, where the buyer has identified and bought specific goods which he has taken away, he cannot be allowed to change his mind. This is because, the law is that risk of any damage. In other words, risk passes with the property unless there is a contrary agreement between the parties. In the instant

case, there is no evidence of such contrary intention as there is no written document which stipulates the terms of the contract. The receipt Exhibits “C6(i)” and “(ii)” is only evidence of payment for the asphalt sold but not the document evidencing the contract. Thus, Section 15(a) of the Sale of Goods of Oyo State stipulates as follows:
“15. Subject to the provisions of this Law and of any written law in that behalf there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under contract of sale, except as follows –
(a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the sellers skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose.
Provided that in the case of a contract for the sale of a specified article under its patent or other trade name,

there is not implied condition as to its fitness for any particular purpose.”
There is no doubt that the goods the subject of the transaction between the parties is specified and known by both parties as ASPHALT. Section 15(a) of the Sale of Goods Law of Oyo State (supra) stipulates that in such contracts, there is no implied warranty or condition as to the quality or fitness of the good for any particular purpose. For such warranty or condition to be read into the contract, the buyer must have either expressly or impliedly made known to the seller the particular purpose for which the goods are supplied. Under the proviso thereto, no condition as to fitness for any particular purpose is implied where the contract is for the sale of specified article under its patent or trade name.

Now, there is no evidence on record to show that asphalt is used for only one purpose. The Defendant also pleaded and led evidence to the effect that the Claimant/Respondent did not make it known the particular purpose for which the goods (asphalt) was required. The fact was pleaded in paragraphs 11, 12 and 13 of the Statement of Defence and Counter-Claim as

follows:
11. Throughout the period that the Claimant’s officials were taking delivery of the asphalt from the factory of the Defendant, the Claimant did not disclose the destinations to which they were carrying the asphalt. They did not disclose or link the asphalt to any road construction or any project at all.
12. The Claimant did not discuss with the Defendant the length, distance or measurements or natural conditions of the road or any project so the Defendant was not in a position to advise the Claimant of the quantity of the asphalt that will be required for such project.
13. The Claimant determined the quantity to be bought itself and not based on any advise by the Defendant.

Evidence of those facts were led by the Appellant through the written Statement on Oath of DW1. The response of the Respondent is as stated in paragraph 1 of the Reply and Defence to the Counter-Claim. Therein, it was averred that:
“1 … The Claimant avers that they did not need to inform the Defendants about the destination and project at hand. Neither did they need to disclose the length, distance or measurements or natural conditions of the

road. The Claimants bought enough quality of asphalt from the Defendants for the area they needed it for.”

On the whole, it is my finding from the pleadings and evidence on record that there is no evidence upon which I can infer that the Respondent made it known to the Appellant the particular purpose for which the asphalt was to be used. On that note, I cannot hold the Appellant liable in breach of any implied or express warranty or condition as to quality or fitness for any particular purpose.

In finding as above, I did not lose sight of the fact that the Respondent did not even prove that the asphalt sold to it by the Appellant was of poor quality as to not satisfy the quality or fitness for the purpose for which it was bought. The two Bitumen Extraction Test (Wearing Course) Reports which were tendered and admitted in evidence as Exhibits “C1” and “C1A” have been held not to have been properly put in evidence. In any case, they are not entitled to be accorded any evidential or probative value, as the Appellant was not given the opportunity to cross-examine on them in breach of fundamental right to fair hearing.

Accordingly, issues 2, 4 and 6 are equally resolved in favour of the Appellant.

Having resolved issues 1, 2, 4, 5 and 6 in favour of the Appellant, it is my view that it is no longer necessary to delve into issue 3. On the whole therefore, I hold that this appeal has merit and it is hereby allowed. Consequently, the judgment of the Oyo State High Court sitting in Ibadan, delivered on the 3rd day of October, 2014 in Suit No: I/4/2011 is hereby set aside.
I award cost of One hundred thousand naira (N100,000.00) as cost against the Respondent in favour of the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord HARUNA SIMON TSAMMANI, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that there is merit in this appeal and it is allowed by me.
I abide by the consequential order as to costs made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA and I agree with the reasoning and conclusion reached therein.

As stated by his Lordship, a Court cannot rely on evidence improperly admitted. It is settled law that if a document is wrongly admitted or received in evidence by a trial Court, an appellate Court has the inherent jurisdiction to expunge it from the Record and go on to decide the case on legally admissible evidence. See PHILIPS VS. EBA ODAN COMMERCIAL & INDUSTRIAL COMPANY LIMITED (2013) 1 NWLR (PT. 1336) 618: UNITY LIFE & FIRE INSURANCE CO. LTD VS. INTERNATIONAL BANK OF WEST AFRICA LTD (2001) 7 NWLR (PT. 713) 610; ABUBAKAR VS JOSEPH (2008) 13 NWLR (PT. 1104) 307. In OKONJI VS. NJOKANMA(1989) 14 NWLR (PT. 638) 250, Achike, JSC held thus:
“It therefore follows that under our law a wrongfully admitted piece of evidence is not sacrosanct; it is still subject to the closest scrutiny by the Appellate Courts. The appellate Courts are under a duty to cut down and expunge any evidence that it wrongfully admitted.”

Exhibits C1 and C1A relied upon by the Respondent at the trial were wrongly admitted in evidence and are therefore expunged from the record. The two documents are the bedrock of the case of the Respondent at the lower Court. His case

therefore fails in the absence of Exhibits C1 and C1A.

It is for the foregoing and the more elaborate reasons given in the lead Judgment that I also find this appeal meritorious and allow same. I abide by the Order made as to costs In the lead judgment.

Appearances:

OLAJIDE BALOGUN, ESQ., with him, OLANIRAN OBELE, ESQ. For Appellant(s)

ADENIRAN ADEYEMO, ESQ., with him, TOLA BABALOLA, ESQ. For Respondent(s)