CONSOLIDATED RESOURCES LIMITED & ANOR v. ABOFAR VENTURES NIGERIA LIMITED
(2007)LCN/2208(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of February, 2007
CA/L/61/2004
RATIO
It is trite law that admitted facts need not be proved – Mozie & Ors v. Mbamalu & Ors (2006) 7 SC (pt 11) 154 at 160. PER R. C. AGBO, J.C.A.
When a plaintiff leads evidence and the defendant does not, the onus of proof lying with the plaintiff to establish the facts pleaded would be established on a minimum of proof- See Buraimo v. Bamghose (1989) 3 NWLR (pt. 109) 353, Okuebor v. Police Council Supra, New Breed Organization Ltd. v. Erhoiasele (2006) 2 SC (pt.1) 136 at 150. PER R. C. AGBO, J.C.A.
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
Between
1. CONSOLIDATED RESOURCES LIMITED
2. PAULINUS OZONNAGBO – Appellant(s)
AND
ABOFAR VENTURES NIGERIA LIMITED – Respondent(s)
R. C. AGBO, J.C.A. (Delivering the leading Judgment): The appellants as plaintiffs in suit No. LD/2185/2001 filed at the High Court of Lagos State, Lagos Division claimed of the defendant as per paragraph 22 of their amended statement of claim as follows:-
“1. DECLARATION that the defendant was in breach of agreements made on 28/5/99 and 9/6/99 between it and the 1st Plaintiff for the transfer from the Defendant’s oversees account proceeds from its export of cocoa the slim of USS66.550.35 (Sixty-six Thousand. Five Hundred and Fifty United States Dollars. Thirty- Five cents) for which the Defendant had received in Nigeria from the 1st Plaintiff on behalf of the 2nd Plaintiff the Naira equivalent of same to the 2nd Plaintiffs overseas customer.
2. ORDER for specific performance of the said agreements of 28th May 1999 and 9th June 1999 made between the Plaintiff and the Defendant for the transfer of sum of USS66.550.35 to the 2nd Plaintiff’s overseas customer.
3. ALTERNATIVELY to 2 above. AN ORDER directing the Defendant to pay over to the Plaintiffs the sum US$66.550.35 of its Naira equivalent at judgment.
4. Interest on the said sum of USS66.550.35 at the rate of 35% from 9th June 1999 till judgment and thereafter at the rate of 4% till final payment.
5. FURTHER or in the alternative damages for breach of the said contract.”
The facts of the case as pleaded by the plaintiff was that the 1st plaintiff, a company involved in sourcing and placement of funds and rendering financial advisory services to its customers sourced from the defendant the sum of US$449.600.00 which sum the 2nd defendant paid for in the naira equivalent. The defendant was to pay the agreed 449.600.00 dollars into an account in Singapore designated by the 2nd plaintiff. The defendant paid into the designated account the sum of 393.049.65 US Dollars leaving a balance of US Dollars 56.550.35. This contract was entered into between 28 May 1999 and 9th June 1999. As a result of this failure, the 2nd plaintiffs business suffered as its overseas customers refused to avail him all the goods he had ordered. Plaintiffs made several demands of the defendant to pay the said sum outstanding. It promised to pay but consistently defaulted. On the threat by the plaintiff to resort to the court to recover the dollars owing, the defendant offered to pay 10.000.00 dollars interest provided the plaintiff stayed action on filing the suit. The defendant has refused to pay both the outstanding sum and the 10,000.00 dollars interest. The plaintiff felt compelled to go to court to recover the said sum outstanding.
The defendant did not file a statement of defence nor did it take any steps to defend to defend itself. The case went to hearing. Plaintiffs called two witnesses, tendered some documentary exhibits and closed its case. Plaintiffs counsel thereafter addressed the court in writing. In a considered judgment delivered on 30th April 2003, the Lagos State High Court dismissed the plaintiffs’ case in its entirety.
Not being satisfied with the judgment, the appellant has timed this appeal. The appellant filed his grounds of appeal to wit:
“3.1 The court below erred and misdirected itself in law when it held that “the plaintiffs have failed to discharge the burden of proof placed on them to the existence of particular contracts dated 28th May, 1999 and 9th June, 1999 neither have they proven that the defendants are owing them the some of USS66,550.35 as the various exhibits tendered contain different amounts the defendants counsels admission – Exhibit PW6, stated that USS96,000 was the sum owed”.
3.2 The court below erred in law in dismissing the plaintiffs claims 1 and 2 without a due consideration and assigning any reason for doing so and thereby occasioned a miscarriage of justice.
3.3 The court below misdirected itself in law when it held that “The issues arising for determination are as follows:-
1. Was there a valid contract between the plaintiff and the defendants”
2. If so, is the contract legal?
3. Are the plaintiffs entitled to their claims?
4. Are the plaintiffs entitled to interest or damages?” and thereby arrived at a wrong conclusion and occasioned a miscarriage of justice.
3.4 The court below erred in law when it held that “the PW 1 in His testimony had stated that a part of the outstanding sum was being claimed before another Court, however no evidence was placed before the Court to show what part of the outstanding sum if any was due to another client of the 1st plaintiff by the defendant” and thereby arrived at a perverse finding by failing to make the necessary inferences from proved facts.
3.5 The court below erred in law in dismissing the Appellants’ claim after accepting exhibit PW2 in which the Respondent admitted owing the Appellants sum money well above the claim before it.
3.6 The judgment was against the weight of evidence.”
From these six grounds of appeals the appellant distilled three issues on determination:
“1. Whether there was an agreement for which the Respondent was in breach of (Grounds 1 and 3)
2. Whether from the state of pleadings and the evidence on record the learned trial judge properly evaluated the evidence adduced before dismissing the Appellants’ claims (Grounds 2 and 4)
3. Whether in view of the admission of indebtedness by the Respondent, the order of dismissal of the Appellants’ claims made by the court below was proper in the circumstance (Ground 5).”
On the other hand the respondent formulated only one issue for determination to wit:
“Whether the appellants are entitled to their claim before the lower court in spite of apparent conflict and inadequate evidence adduced in support of same.”
The issues as set out by the appellant are more in consonance with the complaints in the grounds of appeal than that of the respondent.
I hade earlier set out the facts of the case as pleaded by the appellants in their statement of claim. The defendant filed no statement of defence. No issues were therefore joined on the facts. Where a defendant fails to file a statement of defence, he is taken to have admitted the facts pleaded by the plaintiffs – See Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444.  It is trite law that admitted facts need not be proved – Mozie & Ors v. Mbamalu & Ors (2006) 7 SC (pt 11) 154 at 160. Ordinarily therefore, as no Issues were joined, if the appellants had limited their prayers to a liquidated money demand as in their 3rd prayer, it would have been unnecessary for them to lead any evidence at all and the court below would have been left no other duty but to consider the legal effect of the facts so pleaded. However, for the appellants to obtain a declaratory order as sought in prayer number 1. an order I consider completely unnecessary from the facts pleaded, must lead evidence and they did. When a plaintiff leads evidence and the defendant does not, the onus of proof lying with the plaintiff to establish the facts pleaded would be established on a minimum of proof- See Buraimo v. Bamghose (1989) 3 NWLR (pt. 109) 353, Okuebor v. Police Council Supra, New Breed Organization Ltd. v. Erhoiasele (2006) 2 SC (pt.1) 136 at 150. In such instance, the defendant is deemed to have accepted the pleadings and evidence of the plaintiffs “lock, stock and barrel.” – See Eseighe ve Acholor & Anor (1993) 12 SCNJ 82 at 105. In such circumstance the court is left with the function of determining the legal effect of the admitted facts. In the instant case, in the judgment of the court below, it held that it had difficulties in determining the terms of the contract in dispute between the plaintiffs and the defendant. This flies in the face of the unchallenged facts pleaded in paragraphs 5 to 15 of the amended statement of claim and the unchallenged oral testimony of P.W.1. The said paragraphs 5 to 15 of the amended statement of claim is reproduced hereunder:
“5. The 1st plaintiff in the course of its business assists the 2nd plaintiff in sourcing for funds in foreign currency and remitting same to the 2nd plaintiff’s overseas customers who will in turn send the goods ordered by the 2nd plaintiff to Nigeria.
6. The defendant as an exporter of cases and other cash crops to foreign buyers earns quite substantial amount in dollars.
7. The 1st plaintiff buys some of these dollars from the defendants on behalf of its client, in this instance the 2nd plaintiff.
8. Between the 28th May 1999 and 9th June 1999 the 1st plaintiff agreed to buy and the defendant agreed to sell a total of US$449,600 (Four hundred and forty-nine thousand, six hundred United States Dollars) to the plaintiff.
9. In the course of the transaction the 1st plaintiff, made it clear to the defendant that the said amount of US$449.600 was required by the 2nd plaintiff for this importation business.
10. The 1st plaintiff paid the agreed Naira equivalent of the said sum of US$449,600 to the defendant.
11. Thereafter the 2nd plaintiff through 1st plaintiff supplied to the defendant the account number of the 2nd plaintiffs overseas customer into which the foreign currency would be paid.
12. Consequent upon facts averred in paragraph 11 of the plaintiff then instructed the defendant to pay in the said sum into namely:
BANK ABN Ambo Bank N-V
63 Chulia Street
Singapore, 049514
ACCOUNT NO. 40-27-094
ACCOUNT NAME: Dai-Ichi Pte Limited
ORDER OF: Paulius Ozonnagbo
13. The defendant party complied with the 1st plaintiffs instruction to remit the whole US$449,600 to the 2nd plaintiffs customer by remitting a total of USS393.049.65 leaving a balance of USS56,550.35.
14. As a result of this shortfall in the remittance of the entire sum of USS449,600 which Naira equivalent had been paid in full to the defendant, the overseas customers of 2nd plaintiff could not send the entire goods ordered by the 2nd plaintiff.
15. The defendant’s failure, neglect and/or refusal to remit the balance of USS56.550.35 to 2nd plaintiffs overseas customers has adversely affected crucial business relationship between the 1st plaintiff and the 2nd plaintiff who paid the Naira equivalent of the entire sum of USS449,600.”
The testimony of P.W. 1 agreed completely with the pleaded facts. Plaintiffs pleaded several transactions with the defendant but limited its claim to the particular transaction that took place between 28th May 1999 and 9th June 1999 involving the sum of US$449,600.00. The exhibits showing a higher volume of indebtedness by the defendant do not conflict with the pleadings as the plaintiffs acknowledged other transactions but limited its claim to the particular transaction the subject matter of this litigation. In the light of the pleadings and evidence before the court, the finding of the court below that the terms and conditions of the contract cannot be determined is perverse. It was also pleaded and proved that the defendant in order to obviate the losses suffered by the plaintiffs over its failure to remit the total amount of US Dollars purchased of it, it offered to pay an additional $10.000 dollars, an offer accepted by the plaintiffs. Plaintiffs’ counsel in his address to the court below expressed doubt as to the feasibility of giving effect to the 2nd prayer i.e. the prayer for a specific performance. The court below ought to have had no difficulty in granting the alternative prayer which is the 3rd prayer.
However, the appellant’s claim for pre-judgment interest is on shaky ground. This is because not only must a claim for interest be specifically pleaded but such pleading must disclose whether or not the interest is based on contract or statute and the ground upon which the claim is based. Where the interest claimed is founded on contract express or implied, the terms of the contract or relevant facts relied upon must be pleaded. If the claim for interest is founded on the equitable jurisdiction of the court, the relevant facts founding the claim must be pleaded – Sec S.J. Maskin Fachric A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (pt 637) 128. The facts founding the prayer for 35% pre-judgment interest, not having been pleaded, that claim cannot be sustained. So also the alternative prayer for damages for breach of contracts as the parties themselves had agreed on $10.000.00 a sum incorporated in prayer NO.3.
This appeal succeeds. The judgment of the High Court of Lagos State dated 30th April 2003 is hereby avoided. In its place I hereby order as follows:
(1) There shall be judgment for the plaintiffs in the sum of US66,550.35 against the defendant.
(2) Interest at 4% of the judgment debt from 30th April 2003 until the payment of the total judgment sum.
(3) Costs to the appellants is assessed at N 10.000.00
CLARA BATA OGUNBIYI, J.C.A: I have read in draft the lead judgment of my brother Agbo JCA. I agree that the appeal has merit and therefore succeeds.
With the combined effect of Sections 135, 136, 137 and 139 of the Evidence Act Cap.112 Laws of the Federation of Nigeria 1990, the onus of proof was squarely placed on the appellants, who were the parties that would loose in the absence of discharging the burden. The appellants, as the plaintiffs at the lower court, did not only file their statement of claim but called evidence in proof thereof. The defendants to the contrary totally failed to respond. In otherwords they neither filed any defence nor did they put in their defence on points of law.
Proof in a civil case is on the preponderance of evidence. The learned appellants counsel submitted that the absence or non participation of the respondent at the court below will not ipso facto or as a matter of law entitle the appellants to judgment but that the evidence proffered by the appellants though uncontradicted, or uncontroverted, same must still be subjected to an evaluation and appraisal by the court. He argued that the essence of this is to determine its quality with a view to ascertaining whether or not the appellants had proved their case. Counsel in support cited the case of Okoebor v Police Council (2003) 5 SC 11 at page 35. At page 68 of the report, Tobi JSC made the following pronouncements and said:-
“The basic principle of law is that where a defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim. But where a paragraph of the statement of claim is notoriously false to the common knowledge of the court, like 10th July is Nigerians Independence anniversary, such a paragraph is not admissible because it is an obvious untruth. A defendant who fails to file a statement of defence cannot in law lead oral evidence because the oral evidence, not pleaded, will be to no avail.”
Also on the same principle of law are the cases of Awoveghe v Ogheide (1988) 1 NWLR (Pt.73) 695; Aguocha v Aguocha (1986) 4 NWLR (Pt.37) 566; Ogboda v Adulagba (1971) 1 All NLR 68; and Ataue v Amu (1974) 10 SC 237.
Furthermore and in another case of Ayiuke v Lawal (1994) 7 NWLR (Pt.356) 263 at 275, Iguh JSC on an uncontradicted evidence had this to say:-
“Thus evidence was neither contradicted nor discredited by the defendants by way of cross-examination and as such the case remained unchallenged … where evidence given by a party to any proceedings was not challenged by the opposite party who, …had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it.”
Other related authorities are the cases of Isaac Omoregbe v Daniel Lawani (1983) 3-4 SC 108 at 117; Odulaja v Haddard (1973) 11 SC 357; Nigerian Maritime Service Limited v Alhaji Bello Afolabi (1978) 2 SC 79 and Bashali v Allied Commercial Exports Ltd. (1961) All NLR 917.
Having regard to the statement of claim of the appellants and the evidence of the two witnesses in substantiation thereof, the weight of the scale certainly titled in favour of the plaintiffs/appellants, whose uncontradicted evidence served a sufficient proof on the balance of probability with same having all gone the same way and direction. See the cases if Chime v Chime (2001) 1 DSCR 18; and M. I. A. & Sons v Federal Housing Authority (1991) 8 NWLR (Pt.209) 290. I agree with the learned appellants counsel in the circumstance therefore that the court below took an erroneous view point on the plaintiffs claim by dismissing same. However and on the aspect relating to the pre-judgment interest of 35% not having been pleaded and specifically proved, it therefore had no foundation as the court has no business being a father Christmas in giving what has not been sought for.
In the result I agree with my learned brother Agbo JCA in vacating the judgment of the lower court and subsistituting same as per the orders made in the lead judgment. I also abide by the orders made as to costs.
PAUL ADAMU GALINJE J.C.A: I had the privilege of reading in advance the judgment just delivered by my learned brother Agbo, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat. The Appellants who were the Plaintiffs at the lower Court pleaded and led unchallenged evidence in support of their claim for USD 66,550.35 against the Defendant. The lower Court ought to have relied on that evidence unless it was shown that the evidence is not commendable. In Akalono v. Omokaro (2003) 8 NWLR (pt. 821) 190 at 206.207 paragraphs H-B, this Court held as follows: –
“The proposition of law that when evidence is uncontroverted or unchallenged it must be accepted in proof of the issue in contest only holds good when the unchallenged evidence itself is credible.”
In Okoebor v. Police Council (2003) 12 NWLR (pt. 834) 444, the Supreme Court, per Edozie, J.S.C. said:-
“The attitude of the Courts to unchallenged evidence is not in doubt and it has been stated and reinstated in a plethora of decided eases. In Iriri v. Erhurhobara (1991) 2 NWLR (pt. 173) 252 or 255, it was held that where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seeks to support. In the same vein, it was decided that wherever any evidence whether affidavit or oral stands uncontradicted unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adverse partly.”
There is nothing to show that the evidence led by the Appellants at the lower Court is not commendable. There is also no evidence that the Respondent was not given an opportunity to defend the suit in that Court.
I am of the firm view that the finding of the lower Court that it had difficulties in determining the terms of the contract in dispute between the parties was arrived at in error. This is because the facts founding the suit arc clearly and unambiguously set out in paragraphs 5-12 of the statement of claim and these facts are clearly attested to by PW 1.
For the reason I have set out herein, and the more comprehensive and exhaustive reasons in the lead judgment, I too allow this appeal. I abide by all the consequential orders including order as to costs.
Appearances
CHIKE ODEZUGO
UDENZE UKEKWE For Appellant
AND
D. I. KUPOLATI For Respondent
