CHINELO OKOYE V. GRUNZ LINK LTD
(2013)LCN/5861(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of January, 2013
CA/E/294/2007
RATIO
“An order of non-suit postulates that, or is made in a situation where there is no satisfactory evidence to entitle either party in the action to judgment. See OKPALA V. IBENE (1989) 1 NWLR (PT. 102) 208; ODI V. IYALA (2004) ALL FWLR (PT. 207) 570; ENU V. AIGBEDION (1973) 1 NMLR 33.” Per AKEJU, J.C.A.
“It is settled that evaluation of evidence received at the trial of a case and ascription of probative value to such evidence are primarily the functions of the trial court that heard the witnesses and observed their demeanor. Although the appellate court is in a good position to evaluate evidence, it will only interfere with the findings of the trial court where the trial court has failed to make proper use of this opportunity of seeing and observing the witnesses or has drawn wrong inferences from the evidence and thereby reached a decision that is perverse. See EBBA V. OGODO (1984) 1 SCNLR 372; NNEJI V. CHUKWU (1996) 10 NWLR (PT. 578) 265; OGBECHIE V. ONOCHIE (1988) 1 NWLR (PT.470) 370; IKE V. UGBOAJA (1993) 6 NWLR (PT. 301) 539; ENANG V. ADU (1981) 11-12 SC 25. The principles that guide the trial court in the duty of evaluation of evidence as well stated in the case of A.R. MOGAJI V. MADAM RALIATU ODOFIN (1978) 4 SC 91 are that the trial judge, after a summary of the evidence of both parties, should put the evidence on an imaginary scale of justice, weigh one against the other and decide upon preponderance of credible evidence which one out weighs the other by considering whether such evidence is admissible, whether it is relevant, whether it is credible, whether it is conclusive and whether it is more probable than that of the other party. Where the trial judge has creditably carried out the duty of evaluation of evidence, an appellate court will not disturb the findings of that court just to substitute its own views on those findings.” Per AKEJU, J.C.A.
“It is settled that an appellate court is usually reluctant to interfere with the exercise of discretion by the trial court and will only interfere where the discretion has been exercised arbitrarily or illegally or not exercised judicially and judiciously. See HOPE RISING V. VOLUNTARY SERVICES (1982) 1-2 SC 145; EHIDIMHEN V. MUSA (2000) 8 NWLR (PT. 669) 540; OYEKANMI V. NEPA (2000) 12 SC (PT. 1) 70; OGOLO V. OGOLO (2006) ALL FWLR (PT. 313) 1; OYEGUN V. NZERIBE (2010) VOL. 1-2 MJSC 1.” Per AKEJU, J.C.A.
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
CHINELO OKOYE Appellant(s)
AND
GRUNZ LINK LTD Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Onitsha Division of the High Court of Anambra State on 27th April, 2007 in Suit No. O/142/2002. The respondent as the plaintiff had commenced the suit through the Writ of Summons filed on 4th March, 2002 together with a supporting affidavit seeking that the suit be heard under the Undefended List. Upon the Notice of Intention to defend and affidavit of the defendants, the suit was transferred to the general cause list and pleadings were filed accordingly.
The claim of the plaintiff as averred in paragraph 37 of the Statement of Claim filed on 18/11/2004 is for:
“(a) The sum of N3,970,500.00 (Three Million, Nine Hundred and Seventy Thousand, Five Hundred Naira) being the value of computer equipments and accessories supplied by the plaintiff to the defendants.
(b) Interest at the rate of 21% per annum of the said sum of N3,970,500.00 from the 10th day of July, 2001 until Judgment is given.
(c) Interest at the rate of 4% per annum on the judgment debt till the judgment debt is liquidated.
(d) Total cost of this proceedings”.
The defendants’ statement of defence filed on 5/4/2005 was subsequently amended through the Amended Statement of Defence And Counterclaim filed on 25/7/2006 wherein the defendants denied the plaintiff’s claim and made a Counterclaim for the sum of N312,500.00. A Reply to Statement of Defence And Counterclaim was filed by the plaintiff on 20/9/2005.
At the trial, one witness testified for the plaintiff as the PW1 while the defence called three witnesses as DW1, DW2 and DW3, and after the filing and adoption of written addresses by the parties’ Counsel, the learned trial judge eventually entered judgment in favour of the plaintiff. It must be stated here that there were four defendants in the action but in his judgment the learned trial judge found that there was no privity of contract between the plaintiff and the 2nd, 3rd, 4th defendants and their names were accordingly struck out while the judgment was entered against the 1st defendant alone for the sum of N3,970,500.00 with interest at the rate of 10% per annum from the date of judgment until liquidation of the judgment debt, while the Counterclaim was dismissed for want of merit.
Aggrieved by the judgment, the 1st defendant (now called the appellant) filed a Notice of Appeal on 2/5/2007 with two grounds of appeal, but with the leave of this court granted on 12/4/2011, the appellant filed four additional grounds of appeal numbered as grounds 3, 4, 5 and 6. In the Appellants’ Brief of Argument prepared by Chudi Obieze Esq and filed on 14/4/2011, the following issues were formulated for determination;
1. Whether the trial court could in law competently enter judgment for the plaintiff after having suo motu called on the parties to address it on the desirability of entering a non suit against the plaintiff?
2. Whether the amount shown typed on Exhibit B can be said to represent the total value of goods supplied by the Respondent to the Appellant subject to exclusion or subtraction of N423,000.00 from the amount as value of returned goods or items as at 12th March, 2001 when Exhibit B was made?
3. Are Exhibits D and E conclusive proof of the Respondent’s claim in view of Exhibit H?
Arguing the 1st issue the learned Counsel contended that at the stage where the trial court suo motu invited the parties to address it on non-suit, the court had made up its mind that there was no satisfactory evidence to entitle either of the parties to judgment and the invitation of the court to parties for address amounted to a decision.
It was submitted that where a non-suit order is contemplated, it is desirable to first hear the parties, citing GRAIG V. GRAIG (1967) NMLR 55 and Order 34(1) of the High Court of Anambra State Rules, 2006. It was submitted also that when by its ruling of 19/2/2007 the trial judge stated that the issue of non-suit crossed his mind it meant that the court had decided and ruled that there was no evidence which entitled either party to judgment and court could only either non-suit the plaintiff or dismiss the suit, as it lacked jurisdiction to hold thereafter that the plaintiff had proved part of his case which will amount to a legal summersault.
The argument of the learned Counsel on the second issue centres on exhibit B which the learned trial judge accepted as an agreement by the appellant that the total value of goods supplied to her by the respondent was N12,393,500.00 as at the date it was made, subject to subtraction of N423,000.00 being the value of goods or items returned.
It was contended that on its face, exhibit B contains other deductions from the stated prices apart from the amount of N423,000.00 for the returned items, it contains also a grand total of N10,345,500.00. It was submitted with reliance on AKINBISADE V. STATE (2006) 17 NWLR (PT. 184) 204 that in the construction of a document the document must be read and interpreted holistically and a party cannot pick a portion thereof that is convenient for his own case.
The appellant contended that the oral evidence of the PW1 was at variance with the entry on exhibit B and the document cannot therefore be said to have been accepted as a true statement of the transactions with the respondent and does not represent the indebtedness of the appellant to the respondent. It was submitted that where the words of a document are clear and unambiguous, the court should uphold them, citing TOTAL (NIG) PLC V. AKINPELU (2004) 17 NWLR (PT. 903) 509. It was submitted also that the trial court ought to have read exhibit B as a whole, and not to pick and base its judgment on only one item therein; citing MBANI V. BASI (2006) 11 NWLR (PT. 991) 400.
The learned Counsel contended that the trial court had a duty to compare the entries in exhibit B with the items supplied vide exhibits K, K1, K2 and K3 so as to ascertain how much the appellant owed the respondent, but the trial court failed to perform this duty which would have revealed that some of the items listed in exhibit B are not recorded in any of exhibits K, K1, K2 and K3 and were not supplied. The consequence of this failure is that the court did not discover the great disparity between what is claimed in exhibit B and the items truly supplied, and that exhibit B does not represent the actual total value of goods supplied to the respondent.
On the third issue the appellant argued that exhibit E is a repetition of exhibit B excluding the endorsements made by the appellant.
It was contended that from the nature of this case there should be a document showing the debt agreed upon by the parties and in the absence of such document the respondent had to tender the Way Bills with which the goods were supplied and received by the appellant.
It was further contended that exhibit E, the Cash/Credit Sales/Invoice was not signed by the appellant as purported in one of the columns therein, and the respondent failed to cross examine the appellant on her assertion that she did not participate in the making of exhibit E and did not sign same; the implication of which is that the respondent had accepted the truth of the appellant’s assertion. The respondent, it was further argued, failed to discharge the onus on him under Section 100 of Evidence Act 1990 to show that the writing and signature on exhibit E belonged to the appellant.
The learned Counsel argued that exhibit H pleaded and tendered in evidence by the appellant shows the details of her understanding of the transaction between her and the respondent, but the respondent failed to specifically answer the averment of the appellant that exhibit H was compiled by the appellant and sent to the respondent, which amounts to an admission of that fact and no further proof is required.
From the state of pleadings and evidence as contended by Counsel, it is not disputed that exhibit H was received by the respondent who failed to respond thereto, but remained silent which amounted to an admission of the correctness of exhibit H.
It was argued that the trial court was not right to have discountenanced exhibit H on the ground that its author did not testify on it since the same court accepted exhibits K, K1, K2 and K3, the Way Bills also authored by the same person but tendered also by the appellant. Having accepted exhibits K, K2 and K3, the trial court ought to have accepted exhibit H made from them by the same person and not challenged by the respondent after receiving it from the appellant.
This court was urged to accept the three issues and allow the appeal.
The Respondents’ Brief was settled by Mike Ikebudu Esq. of Counsel and filed on 25th May, 2011. The following issues were formulated therein;
“1. Considering the admissions made by the Defendant/Appellant that she made payments for the goods based on the reconciled statement of Accounts in Exhibits A and B respectively whether this is an appropriate situation where the appellate court will be invited to re evaluate the evidence and findings of the trial court.
2. Whether the learned trial judge considered and took a correct view as to the evidential and probative value of Exhibit H (the Appellants Statement of Account 20/6/2001) which was the main plank of the defendant/Appellants’ case”.
The respondent also adopted the first issue raised by the appellant which is whether the trial court could in law competently enter judgment for the plaintiff, after having suo motu called on the parties to address it on the desirability of entering a non-suit.
On the respondent’s first issue, the learned Counsel contended that exhibit A dated 8/3/2001 has a figure of N13,791,000.00 including the outstanding balance carried from December, 2000 which was checked and confirmed by the appellant with the respondent before exhibit B dated 12/3/2001 was issued and the figure was endorsed by the appellant who in her own handwriting subtracted the value of goods returned, leaving N12,393,500.00 as the amount payable which was also confirmed in exhibit E, the receipt of which the appellant admitted.
It was submitted that the appellant who admitted receiving exhibit E did not challenge the document sent to her demanding the payment of the sum now claimed by the respondent, and such facts that are not challenged are deemed admitted and need no further proof citing OGUANULU V. CHIEGBOKA (2003) 25 WRN 113. It was contended that the testimony of the appellant under cross examination and the payment of N3 Million to the respondent in July 2001 despite the existence of exhibit H are incidences of admission of the respondents’ claim.
It was argued that the appellant miscalculated the goods supplied in exhibits A, B, E, K, K1, K2 and K3 and those returned vide exhibit C because the goods recorded as not supplied are those same goods returned vide exhibit C, the value of which had been deducted before arriving at the amount now claimed.
It was submitted that the learned trial judge had meticulously evaluated the evidence before him in making his findings and decision which is not in anyway perverse and should not be disturbed by this court. The cases of AGBI V. OGBE (2005) 25 WRN 38; and CEDAR PRESS (NIG) LTD V. M AND M ASS. CO. (2005) 32 WRN 73 were cited in support.
The learned Counsel submitted that the trial court observed the principles applicable where an appellant complains that judgment is against the weight of evidence. On the principles guiding the appellate in matters of revaluation of evidence and when a judgment is said to be perverse, Counsel cited UZOECHI V. ONYENWE (1999) 1 SCNJ 34; MINI LODGE V. NGEI (2007) 4 WRN 45; NWADIKE V. IBEKWE (2004) 24 WRN 32; WOLUCHEM V. GUDI (2004) 3 WRN 20; and AGBABIAKA V. SAIBU (1998) 10 NWLR (PT.571) 534.
On whether the learned trial judge considered and took a correct view as to the evidential and probative value of exhibit H which is the second issue, it was contended that the finding of the trial court is in line with the evidence of the PW1 and DW3.
It was further contended that exhibit H dated 20/6/2001 is the statement of account of the appellant prepared and signed by one Okey Okoye in respect of the transaction in issue in reaction to the respondent’s exhibits A and B, but the appellant failed to prove that exhibit H was delivered to the respondent which failure is fatal to the appellants’ case as the respondent could not have reacted to a document not delivered to it.
The learned Counsel submitted that even where the respondent has not specifically pleaded or denied receipt of exhibit H, same respondent can cross examine appellant’s witnesses on that issue, citing GAJI V. RAYE (2003) 30 WRN 146.
It was contended that Okey Okoye who prepared and signed exhibit H and who also received Way Bills dated 28/2/2001, 1/3/2001 and 27/2/2001 was a material witness to give credible evidence on the goods supplied, received and/or returned and how the figures mentioned in exhibit H were arrived at, but appellant failed to call this maker of exhibit H and the court was right in not attaching any probative value to the document, citing OMEGA BANK PLC V. O.B.C. LTD. (2005) 1 NSCOR 771.
The learned Counsel submitted that where a witness who is to give credible evidence in proof of a particular matter is not called by the party that should do so, the court is entitled to invoke Section 149(d) of Evidence Act that the evidence would have been unfavourable to the person who has with held it, citing AGBI V. OGBEH (2006) NWCQR 1257, and OGWURU V. COOPERATIVE BANK OF EASTERN NIGERIA LTD. (1994) 8 NWLR (PT.365) 685.
It was submitted that since exhibit H has not been accorded any probative value, the appellant’s indebtedness to the respondent has been proved by exhibits B, D and E.
On the first issue in the appellants’ brief which the respondent adopted, the learned Counsel submitted that the trial court was right in its judgment granting the respondent’s claim in part and dismissing the appellant’s counterclaim.
It was submitted that the issue of whether to order a non suit is at the discretion of the trial court which in the instant case was exercised judiciously there being no basis for doing so after hearing the parties in accordance with Order 34 Rule 1 of High Court (Civil Procedure) Rules of Anambra State, 2006. The case of AJETUNMOBI V. OMOWUNMI (1961) 1 ALL NLW 20 was cited in support.
The learned Counsel submitted that it is where a plaintiff has not failed in toto to prove his claim but the defendant is also not entitled to the judgment of the court that a non suit order should be made; KACHALLA V. BANKI (2006) 25 NSCQR 822: but where there is evidence from the plaintiff showing that part of the claim has been proved, a non suit will not be appropriate.
It was contended that the learned trial judge was not estopped from entering judgment for the respondent after inviting the parties to address it on the desirability of entering a non suit.
The Appellant’s Reply Brief was filed on 6th June, 2011.
Learned Counsel to the appellant Chudi Obieze Esq argued that exhibits A and B with the notations thereon by appellant amounted to reconciliation of account which led to the payment made by the respondent to bring the total payment to N8 Million.
It was argued also that only three items were returned through exhibit C and the respondent has not resolved the difference between the quantity said to be supplied by exhibit B and the quantity actually supplied through exhibits K, K1, K2 and K3 which should not be glossed over.
The learned Counsel contended that the respondent’s argument that
Exhibit C was not sent since it is in original form with blue biro is an issue raised afresh in this court and for which the leave of the court is required for it to be raised; and having not done so, the issue must be discountenanced.
On whether exhibit H was not received by the respondent, the appellant contended that the respondent failed to join issues with the appellant in the pleading which would have put the burden of proving the delivery on the appellant, thereby necessitating calling Okey Okoye on evidence of delivery. The respondent raised that issue at the stage of cross examination and the evidence of the appellant as to the delivery of exhibit H to the respondent was not shaken.
According to learned Counsel, there is no evidence on record that it was Okey Okoye that signed exhibit E for the appellant as argued by the respondent.
At the hearing of the appeal, the learned Counsel for the parties were present, and adopted their respective brie(s) of argument.
I had earlier in this judgment set out the issues raised and argued by the parties for determination in this appeal. The appellant raised three issues, the first of which the respondent adopted. The appellant’s other two issues as well as the two issues formulated by the respondent deal with evaluation of evidence with particular regard to exhibits A, B, C, D, E and H admitted at the trial.
The issue that was commonly argued by the parties is the competence of the trial court to enter judgment for the plaintiff after the court had suo motu called for address of the parties’ Counsel on the desirability of entering a non suit.
The contention of the appellant on this issue is based on pages 56-57 of the record of appeal from where it is shown that after the completion of evidence and the adoption of addresses by the two learned Counsel, the case was adjourned for judgment. However, the learned trial judge later invited the two Counsel who were in court on 19th February, 2007 at a proceedings where the learned trial judge said;
“During my consideration of the judgment the issue of non-suit crossed my mind and so it becomes necessary that I take submissions of learned Counsel for both parties on the desirability of entering a non-suit in both the main suit and the counterclaim. Both sides shall file written submissions within 10 days from today.
There is no need to exchange the written submissions.
Case is therefore adjourned to 12th March, 2007 for adoption of the written submissions of both Counsel on the issue of non-suit governed by Order 34 Rule 1 of the High Court Rules”.
The two Counsel acted as directed by court.
In the judgment eventually delivered by the trial court, the learned judge did not order a non-suit but granted the claim of the (plaintiff) respondent for the sum of N3,970,5000.00 with 10% interest per annum from the date of the judgment (27/4/07) till full liquidation of the judgment debt and dismissed the counterclaim of the (defendant) appellant.
The invitation by the learned trial judge is clearly in consideration of Order 34 Rule 1 of the High Court (Civil Procedure) Rules 2006 of Anambra State, which provides that;
“1. Where satisfactory evidence is not given to entitle the plaintiff or defendant to the judgment of the court, the Judge may suo motu or on application non-suit the plaintiff, but the parties’ Legal Practitioners shall have the right to make submissions about the propriety or other wise of making such order.”
The employment of the word “may” in the above provision without doubt shows that the decision of the court to order a non-suit is discretionary. Indeed in ADEBAYO V. ADUSEI (2005) ALL FWLR (PT. 240) 152. Ogbuagu JCA (as he then was) stated at page 186, that:-
“It is now settled that the court has a discretion to enter a non-suit after hearing from the parties. See CHIEF ASIEWO & ORS VS CHIEF ANTHONY AMOS & ORS (1975) 2 SC 57 and AIGBE V. EDOKPOLOR (1977) 2 SC 1. The discretion is one which has to be exercised cautiously judicially and judiciously. See ANYKWO V. A.C.B. LTD. (1976) 2 SC 47 at 62”.
An order of non-suit postulates that, or is made in a situation where there is no satisfactory evidence to entitle either party in the action to judgment. See OKPALA V. IBENE (1989) 1 NWLR (PT. 102) 208; ODI V. IYALA (2004) ALL FWLR (PT. 207) 570; ENU V. AIGBEDION (1973) 1 NMLR 33.
In his judgment in the instant case, the learned trial judge accepted the evidence of the plaintiff and found same to be sufficient to give judgment in favour of the plaintiff as opposed to a non-suit. The learned trial judge could not have compelled himself to order a non-suit as contended by the appellant’s Counsel in the face of the available evidence accepted by him as sufficient to find in favour of the respondent.
It is settled that an appellate court is usually reluctant to interfere with the exercise of discretion by the trial court and will only interfere where the discretion has been exercised arbitrarily or illegally or not exercised judicially and judiciously. See HOPE RISING V. VOLUNTARY SERVICES (1982) 1-2 SC 145; EHIDIMHEN V. MUSA (2000) 8 NWLR (PT. 669) 540; OYEKANMI V. NEPA (2000) 12 SC (PT. 1) 70; OGOLO V. OGOLO (2006) ALL FWLR (PT. 313) 1; OYEGUN V. NZERIBE (2010) VOL. 1-2 MJSC 1.
In the light of the foregoing, I am of the view that the learned trial judge was right and I resolve this issue against the appellant.
The remaining issues in this appeal are the issues (2) and (3) raised by the appellant as well as the two issues formulated by the respondent all of which concern the evaluation of evidence by the learned trial judge with reference to exhibits A, B, C, D, E and H.
It is settled that evaluation of evidence received at the trial of a case and ascription of probative value to such evidence are primarily the functions of the trial court that heard the witnesses and observed their demeanor. Although the appellate court is in a good position to evaluate evidence, it will only interfere with the findings of the trial court where the trial court has failed to make proper use of this opportunity of seeing and observing the witnesses or has drawn wrong inferences from the evidence and thereby reached a decision that is perverse. See EBBA V. OGODO (1984) 1 SCNLR 372; NNEJI V. CHUKWU (1996) 10 NWLR (PT. 578) 265; OGBECHIE V. ONOCHIE (1988) 1 NWLR (PT.470) 370; IKE V. UGBOAJA (1993) 6 NWLR (PT. 301) 539; ENANG V. ADU (1981) 11-12 SC 25.
The principles that guide the trial court in the duty of evaluation of evidence as well stated in the case of A.R. MOGAJI V. MADAM RALIATU ODOFIN (1978) 4 SC 91 are that the trial judge, after a summary of the evidence of both parties, should put the evidence on an imaginary scale of justice, weigh one against the other and decide upon preponderance of credible evidence which one out weighs the other by considering whether such evidence is admissible, whether it is relevant, whether it is credible, whether it is conclusive and whether it is more probable than that of the other party.
Where the trial judge has creditably carried out the duty of evaluation of evidence, an appellate court will not disturb the findings of that court just to substitute its own views on those findings.
I have calmly read the judgment of the trial court in the instant appeal which is on pages 159-175 of the record. The learned trial judge reviewed, evaluated and assessed the oral and documentary evidence of the parties before drawing the following conclusion at page 172;
“Consequently, I answer the above sole issue for determination in the Affirmative in terms of holding that the plaintiff has established on the balance of probabilities that the 1st Defendant owed it the sum of N3,970,500.00 being the unpaid balance of the total value of items of Computer Equipment and their accessories supplied by the plaintiff to the 1st defendant.
In coming to this conclusion, it goes without saying that the testimony of the plaintiff’s sole witness i.e. PW1 (Engr. Uche Ubajaka) was credible having not been shaken or contradicted under cross examination. Therefore I have accepted his evidence with respect to the ascertained value of goods supplied and the balance of the value of goods left unpaid”.
I am in agreement with the respondent that the learned trial judge had properly evaluated the evidence (oral and documentary) in this case and there is no basis for disturbing the findings of that court. I resolve issues 2 and 3 in the appellants’ brief against the appellant while the two issues raised by the respondent are resolved in favour of the respondent.
The conclusion from the foregoing is that this appeal has failed and it is accordingly dismissed.
I award costs of N30,000.00 in favour of the respondent.
JOHN INYANG OKORO, J.C.A.: My learned brother, Isaiah O. Akeju, JCA. obliged me a copy of the lead judgment which he has just delivered and I am in full agreement with him both in the reasoning and conclusion that this appeal lacks merit and ought to be dismissed. My brother has meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal. I adopt his reasoning and conclusion as mine. I also dismiss this appeal with N30,000.00 costs in favour of the Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read the lead judgment delivered by learned brother, ISAIAH OLUFEMI AKEJU, JCA; and I am totally in agreement with his reasoning and conclusions.
I adopt the judgment as mine and I too therefore dismiss the appeal. I also abide by the order relating to costs.
Appearances
Chudi ObiezeFor Appellant
AND
Mike IkebuduFor Respondent
