CADBURY NIG. PLC v. ABDULLAHI
(2020)LCN/14336(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, June 04, 2020
CA/K/189/2008
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
CADBURY NIGERIA PLC APPELANT(S)
And
SAAYADI ABDULLAHI RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO ASSESS THE CREDIBILITY OF WITNESSES BEFORE IT
It is settled law that the assessment and credibility of witnesses is the primary function of the trial Court, which had the singular opportunity of seeing and observing the witnesses. An appellate Court reviewing oral evidence of a trial Court would be entering an arena within the exclusive domain of the trial Court especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses. See Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC. PER ADEFOPE-OKOJIE, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
In the absence of strong reasons, an appeal Court will be slow to interfere with such findings – All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
Where, however, the finding of fact or decision runs counter to pleadings and evidence on record or where the Court whose findings or decision being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious, and by its very nature, the finding or decision has occasioned a miscarriage of justice, or a wrongful application of the law by the trial Court to correctly ascertained facts, the decision will be said to be perverse. See Mamonu v Dikat (2019) 7 NWLR Part 1672 Page 495 at 526-527 per Peter-Odili JSC; James v. INEC (2015) 12 NWLR Part 1474 Page 538 at 602 Para C-D per M.D. Muhammad JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The claim of the Respondent, as Plaintiff before the lower Court, by his Statement of Claim dated 25th May, 2000, is for the following:
1. A declaration that the Plaintiff at all material times relevant to this case was indebted to the Defendant only in the total sum of N45,176,212.21 (Forty Five Million, One Hundred and Seventy Six Thousand and Two Hundred and Twelve Naira Twenty Kobo).
2. A declaration that the Plaintiff has paid to the Defendant in full settlement of the said debt the total sum of N48,542,687.00 (Forty Eight Million, Five Hundred and Forty Two Thousand and Six Hundred and Eighty Seven Naira) and the sum of N3,366,474.81 (Three Million Three Hundred and Sixty Six Thousand and Four Hundred and Seventy Four Naira and Eighty Kobo) is an over payment.
3. An Order directing the Defendant to refund the sum of N3,366,474.81 (Three Million Three Hundred and Sixty Six Thousand and Four Hundred and Seventy Four Naira and Eighty Kobo) to the Plaintiff being over payment made to the Defendant.
4. A declaration that the Plaintiff’s ledger as maintained
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by the agents, servants and/or employees of the Defendant at Kaduna showing the Plaintiff to be indebted to the Defendant in the sum of N15,698,692.97 (Fifteen Million, Six Hundred and Ninety Seven Naira and Ninety Seven Kobo) as at 17/11/98 is not correct and false and accordingly untenable as it is the consequence of a fraud practiced on the person of the Plaintiff by the servant, agents and/or employees of the Defendant who fraudulently raised and forged the signature of the Plaintiff on cash sales invoices and accordingly debited him without supplying the said goods of products to the Plaintiff or his representative.
5. An Order directing the Defendant to refund the sum of N3,176,679.03 (Three Million, One Hundred and Seventy Six Thousand and Six Hundred and Seventy Nine Naira and Three Kobo) being the cost price of N155 Cartons of Knorr cubes at N1,944.35 per carton plus 5% VAT duly paid by the Plaintiff to the Defendant who never supplied the said product.
6. An Order compelling the Defendant to pay to the Plaintiff the accurate sum of reimbursement of 5% rebate on trade discount on stocks of various sizes of Bournvita and Knorr cube in
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accordance with the letter dated 08/11/96 as against the 3% credited into the Plaintiff’s account on 1/4/97.
7. An order directing the Defendant that the sum of N2,000,000.00 (Two Million Naira only) paid to JOHN HOLT PLC as agents of the Defendant vide Bank of the North Ltd cheque dated 8/11/99, which were not reflected on the Plaintiff’s ledger as repayment be refunded to him.
8. An Order directing the Defendant to pay to the Plaintiff the sum of N1,000,000.00 (One Million Naira) per annum from 1997 until judgment is delivered as damages for loss of income and fraud.
9. The cost of this action.
The Defendant, Appellant herein, by its Statement of Defence dated 30/1/03 Counter Claimed for the following:
1. The sum of N15,688,573.59 being balance due from the Plaintiff to the Defendant on account of goods supplied by the Defendant to the Plaintiff and which sum have remained unpaid by the Plaintiff.
2. Interest at the rate of 15% per annum on the said sum from February 1999 till judgment thereafter at the rate of 10% per annum from date of judgment till liquidation.
3. Cost.
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In proof of their claims the parties called a witness each, the Respondent testifying as PW1 and Donatus Enyia, Sales Assistant Officer of the Appellant, as DW1.
Upon conclusion of trial, Hon. Justice T. Zailani of the Kaduna State High Court, in a judgment delivered on 14/11/06 granted the 5th claim of the Respondent, while dismissing the other claims. He dismissed the Counter Claim of the Appellant.
Dissatisfied by this Judgment, the Appellant, Defendant therein, filed a Notice of Appeal on 22/11/06.
In furtherance of the Appeal, both parties filed Briefs of Arguments, albeit out of time but deemed by this Court, upon application, as properly filed. The Appellant’s Brief of Arguments was amended, by leave of this Court on 16/10/18 and deemed properly filed on 22/5/19. The same was settled by Godswill Iyoha Iyoke, in which three issues were distilled for the Court’s determination, as follows:
1. Whether in the light of available evidence establishing the Respondent’s indebtedness of N15,688,573.59, the learned trial judge was right in dismissing the Appellant’s counter-claim in that sum on the ground that the Appellant did not prove the details
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of the components of this sum, a matter upon which issues were not joined.
2. Whether the learned trial judge was not in error in finding for the Respondent on his claim for N3,176,679.03 on the ground that same was not challenged or rebutted despite the Appellant’s rebuttals; and in the absence of evidence establishing the Appellant’s indebtedness.
3. Whether the entire judgment of the learned trial judge granting the Respondent’s relief and dismissing the Appellant’s counter-claim, can be justified in the light of the facts and evidence before the Court.
The Respondent’s Brief of Arguments, deemed as properly filed on 22/5/19, was settled by Yunusa I. Umar Esq., in which a sole issue for determination was distilled, namely:
Whether from the pleadings and evidence in this case, the judgment of the learned trial Court granting the Respondent’s claim for N3,176,679.03 and dismissing the Appellant’s Counter Claim of the Respondent’s indebtedness to the Appellant in the sum of N15,688,573.00 was justified.
The facts of this case, by the Respondent’s account, are that the Respondent,
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Sayyadi Abdullahi, was a distributor and customer of the Appellant, Cadbury Nig PLC. The Appellant was represented in Kaduna by John Holt Plc, the accredited agent of the Appellant, to pay and to conclude all transactions for the delivery of goods, including repayments of the Respondent’s indebtedness to the Appellant. The custom was for the Appellant to grant credit facilities to the Respondent. This relationship was, however terminated by the Appellant on account of the Respondent’s alleged indebtedness of N15,698,697.97 to the Appellant, which claim the Respondent denied. The Respondent contended that the said sum was occasioned by the fraud of the Appellant’s agents/servants who forged the cash sales invoices and debited the Respondent’s account with the Appellants, without the actual delivery of the goods contained in the invoices. The Respondent admitted being indebted to the Appellant in the sum of N45 Million for goods supplied, but claimed that he paid this amount, overpaying by N3,366,474.81. It thus took out a Writ of Summons before the lower Court, claiming as it did above.
It was the Appellant’s case, however,
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that the sum of N15,688,573.59 (Fifteen Million Six Hundred and Eighty Eight Thousand Five Hundred and Seventy Three Naira Fifty Nine Kobo) is the outstanding sum due to it from the Respondent, which amount it counter claimed for.
In resolution of this appeal, I shall adopt the Respondent’s issue, slightly amended, being more succinct, and under which issue, those raised by the Appellant shall be subsumed.
The sole issue for determination, is thus:
Whether from the pleadings and evidence in this case, the judgment of the learned trial Court granting the Respondent’s claim for N3,176,679.03 and dismissing the Appellant’s Counter Claim of N15,688,573.00 was justified.
The Appellant’s Counsel accused the lower Court of failing to consider the totality of the evidence before the Court. Referring to the evidence, he submitted that the Respondent, on whom the onus lay to prove this claim, failed to do so. He cited Mini Lodge Ltd v Ngei (2010) NSCQR 1 at 42, and referring to the various exhibits before the Court, submitted that the judgment of the lower Court was perverse, being contrary to the evidence before the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Respondent’s Counsel submitted however, that it was not disputed that the transaction in question was done by the servants/employees of the Appellant. He also referred to the pleadings of the parties and the evidence before the Court, submitting that the lower Court rightly awarded this claim in favour of the Respondent.
The lower Court, in granting the 5th claim of the Respondent, held as follows, at Page 98 of the Record:
“The Plaintiff tendered Exhibit P7 in support of his claim No. 5. The Exhibit shows that he was not delivered particular items (sic). He accordingly wrote to the Defendant bringing the fact to their attention. Out of 3000 cartons only 1444 were delivered, leaving a balance of 1556 cartons. This piece of evidence was never rebutted or challenged by the Defendant. It is the only claim proved by the Plaintiff. He is entitled to judgment in that regard. Consequently I order the Defendant to pay the N3,176,679.03 being the cost of N1556, cartons of Knorr cube at N1,944.55 per carton plus 5% VAT.”
It is settled law that the assessment and credibility of witnesses is the primary function of the trial Court,
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which had the singular opportunity of seeing and observing the witnesses. An appellate Court reviewing oral evidence of a trial Court would be entering an arena within the exclusive domain of the trial Court especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses. See Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC.
In the absence of strong reasons, an appeal Court will be slow to interfere with such findings – All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
Where, however, the finding of fact or decision runs counter to pleadings and evidence on record or where the Court whose findings or decision being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious, and by its very nature, the finding or decision has occasioned a miscarriage of justice, or a wrongful application of the law by the trial Court to
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correctly ascertained facts, the decision will be said to be perverse. See Mamonu v Dikat (2019) 7 NWLR Part 1672 Page 495 at 526-527 per Peter-Odili JSC; James v. INEC (2015) 12 NWLR Part 1474 Page 538 at 602 Para C-D per M.D. Muhammad JSC.
In the instant case, I find no reason to interfere with the findings of the lower Court, with regard to the grant of the 5th claim and which decision has not been shown by the Appellant to be perverse.
With regard to the dismissal of the Counter Claim, the Appellant’s Counsel, pointing to the exhibits before the Court, contended that the decision of the Court was contrary thereto and thus perverse. He also submitted that the position adopted by the Court was in conflict with the stance taken by it earlier. He cited the case of Brawal v Onwadike 2 SCNQR 1379 Para D-E (sic); Summit Finance v Iron Baba (2004) ALL FWLR Part 188 Page 996; Wilson v Oshin 2 NSCNQR 1212.
The Respondent’s Counsel, in response, submitted that the lower Court was right to have dismissed the Counter Claim. He accused the Appellant, whose duty it is to prove his Counter Claim, of failing to do so. He cited Gowon v Ike Okongwu
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(2003) 6 NWLR Part 815 Page 38. Referring to the evidence and the documents, he submitted that the lower Court’s decision could not be faulted.
Dismissing the Counter Claim, the lower Court held:
“The Plaintiff’s contention is that the Defendant led no credible evidence to prove the counter claim. Being a Counter Claim, it is also the responsibility of the Respondent to prove the same. The Defendant must also depend on the strength of its case.
It is apparent that the Defendant relies on the Exhibits tendered by the Plaintiff to ground its counter-claim. The Defendant particularly relies on Exhibits P2, P8, P9, P10.
Exhibit P8 is the suspension of the Plaintiff from the distributorship of the Defendant. Exhibit P9 is the plea written by the Plaintiff as response to Exhibit P8. P10 is also another plea in response to P8. The Exhibits do not prove the indebtedness of the Plaintiff to the Defendant in the sum of N15,688,573.59.
Exhibit P2 is what the Defendant relies on to say that there is a balance against the Plaintiff to the tune recorded in the Exhibit. The oral evidence of DW1 also says that the Plaintiff is
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indebted to the Defendant in the tune of about N16m.
These pieces of evidence cannot ground the Defendant’s claim in view of the entire evidence in this suit. The Defendant is expected to go further to prove the claims as pleaded. The Defendant is expected to specifically prove the products supplied and their value in Naira. The Defendant is expected to prove how they arrived at the debt claimed.
The evaluation of the totality of the evidence shows the failure of the Defendant to prove the counter claim of N15,688,573.59. The counter claim fails.
The counter claim of 15% interest per annum from February 1999 till date also fails. There is no evidence to justify the claim.
The entire counter claim is accordingly dismissed.
Also dismissed are the Plaintiff’s claims except that No. 5 which is awarded as claimed (and in the terms above stated).”
With regard to the dismissal of the Counter Claim, however, I do find the decision of the Court contrary to the exhibits and evidence before the Court.
In the first instance, it is not correct, as held by the trial Judge, that the Appellant’s witness was vague in
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the amount said to be outstanding, by stating the amount of the Respondent’s indebtedness to be “about N16M”. The witness, I note, was specific.
He stated:
“His debt was about N15.7m which was later reduced to N15.6m.”
The witness also gave evidence of the manner of supply and the manner of entry in the ledger card, Exhibit P2. He also testified of its supply as shown by the endorsement.
The witness further said:
“It is not true that invoices were raised for goods not supplied to him. It is not true that he was short supplied…The Defendant did not complain to us. In fact, he endorsed as having received the goods.”
Both parties, I note, were in agreement that the invoices were all contained in Exhibit P2, which showed the quantum and value of goods supplied and taken delivery of by the Respondent.
The document supposedly impugning Exhibit P2 is Exhibit P6, which, as submitted by the Appellant’s Counsel, is the document that the Respondent claims established the allegation of the fraud of over invoicing.
On the allegation of the fraud relied upon by it in its 5th claim, the
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lower Court, at Pages 96-97 of the Record held:
“The Plaintiff also relies on Exhibit P6 to contend that the Defendant made out eight invoices for goods worth N16,282,100.01 and recorded the said amount as debt against the Plaintiff (in Exhibit P2). He contends that none of the goods in Exhibit P6’s said invoices were actually supplied to him by the Defendant.
The evidence is that the invoices represent goods either supplied or to be supplied to the Plaintiff. That the contents of the invoices are contained in Exhibit P2. That not all the goods were supplied to him those not supplied are worth over N16m.
The evidence is in general terms. The Plaintiff has not specified the invoice containing goods not supplied to him. He has not shown the value of items and their specification to conclude on the balance of probability the claim he advanced. The plaintiff must rely on the strength of his case. It is his duty to prove what he claims.
The evidence he adduced falls short of proving the over payment he made as well as the goods not supplied to him. Which of the invoices were not supplied? Which of the goods were not supplied forms
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part of Exhibit P2? These and other question arose from the claims vis-a-vis the evidence adduced.
When the Plaintiff claims fraud, an offence, the burden of proof is on him as well. The standard is beyond reasonable as is required in criminal cases. The Plaintiff’s claim of fraud must therefore fail. There is no evidence whatsoever establishing the fraud alleged.”
Having held that the Respondent failed to prove fraud of Exhibit P2, and in view of the evidence of DW1 on this claim, the lower Court, I hold, was in error to have refused the Counter Claim.
This is more so, as the Court had held, earlier on in its judgment, at Page 96, as follows:
“A careful evaluation of Exhibit P2 shows that there is a balance against the Plaintiff to the tune of N15,688,573.59. It does not show the over payment the Plaintiff allegedly made. The evaluation of Exhibits P1 and P2 does (sic) not establish the total sum of N48,542,687 as paid to the Defendant by the Plaintiff.”
Having so held, the later statement of the lower Court holding the Counter Claim not proved was a complete volte face and was perverse, I hold, being contrary to the
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evidence before the Court.
The contention of the Respondent’s Counsel that DW1 did not show how the said sum was arrived at, could thus not be sustained, in view of the evidence of DW1, coupled with the finding of the Court and indeed, the decision of the Court of its refusal to agree to the falsity of Exhibit P6.
I thus resolve the sole issue for determination, partly in favour of the Appellant.
In consequence, this appeal succeeds in part. The decision of the lower Court granting the 5th claim of the Respondent is affirmed. The dismissal of the Counter Claim by the lower Court is set aside. The Counter Claim of N15,688,573.59 (Fifteen Million Six Hundred and Eighty Eight Thousand Five Hundred and Seventy Three Naira Fifty Nine Kobo) is accordingly granted.
In view of the length of time this appeal has taken, due to no fault of this Court, it would be inequitable, I hold, to grant interest on the judgment sum, as claimed by the Appellant.
Parties shall bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just rendered by my learned brother Oludotun Adebola Adefope-Okojie JCA. I agree
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with reasons for the conclusion that the appeal succeeds partly.
I allow the same part of the appeal as in the leading judgment and adopt the orders made therein inclusive of the grant of the counter claim.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my Lord Oludotun Adebola Adefope-Okojie JCA and I agree.
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Appearances:
Godswill Iyoke, Esq. For Appellant(s)
Respondent unrepresented For Respondent(s)