DAVID KUMBUL V. DAVID UMEH
(2013)LCN/5867(CA)
RATIO
“The burden of proving a particular fact rests on the party who asserts it. Though this onus does not remain static in civil cases, it shifts from one party to the other where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced.” Per OSEJI, J.C.A.
“It is trite law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate court can only do so where such error or mistake has led to a miscarriage of justice and without the error a different decision would have been arrived at by the trial court. See AMAYO V. EFERINMWINGBO (2005) 11 NWLR (PT 992) 669. BANKOLE Vs PELU (1991) 8 NWLR (PT 211) 523, MORA V. NWALUSI (1962) 2 SCNLR 73.” Per OSEJI, J.C.A.
“Now, a traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the plaintiff the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. See OKOROMAKA V. ODIRI (1995) 7 NWLR (PT 408) 411 AND U.B.N PLC V. SCPOK (NIG) LTD. (2005) 2 NWLR (PT 910) 241. IN NNPC V. SELF (2004) ALL FWLR (PT 223) 1859 this court relying on the case of OSENI V. DAWODU (1994) 4 NWLR (PT 339) 390 held that if a defendant refuses to admit a statement of claim, he must state so expressly and specifically, and he does not do this satisfactorily by merely pleading that he is not in a position to admit or deny a particular allegation and/or that he will at the trial put the plaintiff to the strictest proof thereof. But in BUHARI V. OBASANJO (2005) ALL FWLR (PT 258) 1604 or (2005) 2 NWLR (PT 910) 241 this same court citing the case of ARCHIBONG V. ITA (2004) ALL FWLR (PT 197) 930 held that a denial by simple traverse that defendant does not admit an allegation is sufficient traverse. This is because, where a defendant specifically denies a fact averred by the plaintiff and goes further to put the plaintiff to strict proof of it thereof, issue is clearly joined in the matter. It seems to me however that the sufficiency or not of a traverse depends on the mode of couching. See OSAFILE V. ODI (1994) 2 NWLR (PT 325) 125.” Per OSEJI, J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2013
CA/J/121/2000
JUSTICE
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
DAVID KUMBUL Appellant(s)
AND
DAVID UMEH Respondent(s)
SAMUEL C. OSEJI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Benue State, Gboko Judicial Division, delivered by J.S. Ikyegh J. on the 17th day of March 2000 in Suit No GHC/50/99
The appellant in this appeal was the defendant in the lower court while the respondent was the plaintiff therein. The said respondent had as plaintiff claimed the following relief at paragraph 15 of the statement of claim dated 17-5-1999 and filed on 19-5-1999.
(15) “whereof the plaintiff claim is for the sum of N135,000.00 debt owed to the plaintiff by the defendant”.
(See page 4 of the Record)
The facts of the case, briefly stated, are that sometime in 1997 the Benue cement company plc. (BCC PLC) requested the respondent to supply her with a torque converter machine at the sum of N600,000. The respondent being faced with some difficulties sought the assistance of the appellant to facilitate the supply and payment for the said machine at a commission of N50, 000. A written agreement was made to that effect. The cost of the machine was subsequently reviewed upward to N800,000 by the BCC PLC. This led to a disagreement between the parties as to the rightful beneficiary of the review and following the intervention of friends,it was agreed that the appellant should pay the total sum of N550, 000 to the respondent for the machine. He was instantly paid the sum of N300,000 leaving a balance of N250,000 and an agreement was written to that effect. The respondent sometime thereafter advanced a loan of N5000 by cheque to the appellant which was also evidenced in writing. It however took some pestering for the appellant to pay part of the money in branches of N40000, N10,000 and N70,000 thus leaving a balance of N130, 000 out of the outstanding N250,000 for the machine and adding the N5000 loan brings the total sum claimed to N135,000. The appellant however,claimed to have liquidated any money he owed the respondent.
Pleadings were subsequently filed and exchanged by the parties and at the hearing of the case which commenced on 18-1-2000, the plaintiff testified as PW1 and called one witness. The defendant in his defence testified as DW1.
In a judgment delivered on 17/3/2000 the lower court in finding in favour of the plaintiff held inter-alia as follows:
“I will accordingly,base my decision on Exhibits D and G and find as a fact that devoid of evidence from defendant showing liquidation of the two debts documented in Exhibits D and G, I find defendant liable for the sum of N135, 000 in favour of plaintiff as debt owed the plaintiff by him on the strength of Exhibits D and G.”
Being aggrieved with the said judgment,the defendant (now appellant) filed a Notice of Appeal dated 17-3-2000 and filed on 20-3-2000. It contains three grounds of appeal which shorn of their particulars read thus: –
GROUNDS OF APPEAL
(1) “The Trial Judge erred in law when he treated Exhibit ‘A’ and Exhibit ‘C’ as one contract or transaction.
(2) The Trial Judge erred in law when he failed to consider the evidence of the appellant which was admitted by the respondent that the former paid the sum of N70,000 (seventy thousand naira) through the police.”
(3) The Trial Judge erred in law when he held that if the N50,000 commission was not paid to the appellant he could have mode reference to same in his subsequent acknowledgment with the respondent.”
(4) The decision of the High Court is against the weight of evidence and as such cannot be supported by same”.
In accordance the relevant rules of this court the parties subsequently filed and exchanged their briefs of argument.
The appellants brief of argument date 20/5/2000 and filed on 6/6/2000 was settled by J.A. Asongo Esq.
The respondents brief of argument dated 20/7/2000 but filed on 24/7/2000 was settled by A.G. Ayua Esq. At the hearing of the appeal on 20/11/12 the parties through their counsel respectively adopted their briefs of argument.
In the appellants brief of argument three issues were formulated for determination as follows:
(i) Whether Exhibits A and C form one contract evidencing the payment of N50,000 commission or whether appellant failed to me mention the said commission in his subsequent dealings with the respondent.
(ii) Whether the sum of (N70,000) seventy thousand naira admitted to have been paid by the appellant to the respondent through the police at Makurdi does not form part of liquidation of the sum of N135,000 and same ought to and must have been documented.
(iii) Whether paragraphs 11 and 13 of the statement of defence amounted to general denials and whether the decision of the court below can be supported having regard to the evidence before the court.”
For the respondent, two issues were distilled for determination to wit: –
(a) Whether the respondent proved his case as required by law to entitle him to judgment.
(b) Whether the trial court properly made findings of facts, evaluated the evidence and gave reasons for its judgment.
I find the issues raised by the parties in their briefs of argument as interrelated. I will however adopt the three issues as raised by the appellant in the consideration of this appeal. I will now take issues 1 & 2 together.
ISSUE I AND II
Herein, it was submitted on behalf of the appellant that Exhibit ‘A’ and ‘C’ are different contracts entered into by the parties even though reference was made to the same torque convertor in the two exhibits.
Learned counsel added that while in Exhibit ‘A’ the appellant was to be paid the sum of N50,000 by the respondent for assisting in the supply of the torque convertor to Benue Cement Company Plc. Exhibit ‘C’ on the other hand relates to the payment of the sum of N550, 000 by the appellant to the respondent as the cost for the said torque convertor supplied to the Benue cement company plc. He further argued that the language used in the two documents is clear and the issue is whether the lower court was right to have treated the two contracts by the parties as one transaction based on extrinsic evidence. He relied on the following cases: – UNION BANK OF (NIG) PLC V. SAX (NIG) LTD (1994) 9 SCNJ 1 AT 2: SAVANAH BANK V. SALAMI (1995) a – 10 SCNJ 187 AT 194 AND OLALOYE V. BALOGUN (1990) 5 NWLR (PT 148) 241
Learned counsel also submitted that the inference drawn by the Trial Judge that the appellant must have deducted the sum of N50, 000 from the money paid by Benue cement company Plc, because he did not mention it in Exhibit G was an erroreous one having not been based on the evidence before the court. He added that while the respondent in his pleadings and evidence stated that he paid the N50,000 to the appellant before he even stated pursuing payment from Benue cement company Plc and it was acknowledged in Exhibit ‘A’ but the said Exhibit ‘A’ did not show that such payment was effected and acknowledged therein. It was counsel’s further submission that the appellant gave reasons for not mentioning the N50,000 commissions in his subsequent dealings with the respondent and this was not challenged or contradicted, in which case the court ought to accept such evidence. He added that the issue of inference by the Trial Judge that the sum of N50, 000 was deducted by the appellant at source from the money paid by the appellant at source from the money paid by BCC. Plc. Gboko was raised suo motu for the first time in the judgment without any opportunity given to the parties to address the court on it. This he says was wrong. He relied on UGO V. OBIEKWE (1989) 2 SCNJ. 95 AT 105 AND INUAH V. NTAH (1961) 1 ALL NLR 576.
On issue 2, learned counsel referred to the appellants evidence at pages 14 lines 29 – 32 and page 15 lines 1 – 6 relating to his arrest by police and payment of N70, 000 to the respondent through the said police apart from another one earlier paid to the respondent. He submitted that the lower court did not take into consideration the said evidence when it held that on the strength of Exhibits D and G. the appellant still owes respondent the sum of N135, 000. He further submitted that the fact that the sum of N70, 000 paid to respondent through the police was not documented has no negative effect on the appellant as to warrant it not to be taken as part of the liquidation exercise.
In his response to the issues 1 and 2 raised by the appellant, learned counsel for the respondent referred to page 10 lines 1 – 2 and page 15 lines 9 – 10 of the record to contend that there is evidence that the appellant was undebted to the respondent in the sum of N550,000 out of which he paid N300, 000, leaving a balance of N250, 000 as shown in Exhibit C. there is also evidence that after exhibit C, appellant made further payments of N40, 000, N10, 000 (Exhibit E) and N70, 000 amounting to N120, 000 leaving a balance of N130, 000 as shown in Exhibit G. tendered by the appellant.
Learned counsel further submitted that there is no convincing evidence that the appellant had paid the outstanding balance of N130, 000 to the respondent.
He added that the appellant also failed to prove that he was not paid the N50,000 commission agreed upon in Exhibit A. as it was to be paid as soon as the torque convertor was delivered to BCC PLC and there is evidence that it was delivered before the emergence of exhibit C and G, hence the issue was not raised or addressed in the two subsequent exhibits.
A careful perusal of the parties pleadings and their evidence in the lower court as well as their briefs of argument discloses that the following are not in dispute: –
(1) That the main subject of the transaction between the parties is the torque convertor
(2) That the said torque convertor was duly supplied to the Benue Cement Company Plc Gboko.
(3) That the respondent agreed to pay the appellant N50,000 commission upon his helping his to effect the delivery of the torque convertor to BCC Plc. Gboko. (vide Exhibit ‘A’ dated 2-10-97)
(4) That the appellant borrowed the sum of N5000 from the respondent vide a debit note dated 3-4-98. (Exhibit D)
(5) That the appellant agreed to pay to the respondent the total sum of N550,000 for the torque convertor received and supplied to Benue Cement Company Plc Gboko and in fact paid the respondent the sum of N300, 000 on 20/7/98 with a promise to pay the balance N250, 000 on or before 15-8-98. See Exhibit C. (agreement dated 20-7-98).
(6) That on 3-8-98 the respondent collected the sum of N10, 000 from the appellant through one Mr. Orafa. (vide Exhibit E).
(7) That on 20-11-98 the appellant also gave the respondent the sum of N70, 000 being part of the balance of the money owed the respondent from the supply of the torque convertor (see exhibit G)
Their point of disagreement is that while the respondent insisted that a balance of N130, 000 from the supply of the torque convertor is yet to be paid to him by the appellant including the N5000 loan, making a total of N135, 000.
The appellant on the other hand contends that he has extinguished his indebtedness to the respondent including the N5000 loan and that the N50,000 commission agreed to in Exhibit ‘A’ was never paid to him and as such should form part of his payments to the respondent.
In his evidence at the lower court, the respondent gave details of the monies he received from the appellant as follows: – (see page 10 of the record)
“Defendant did not honour Exhibit C. I have to pester him before he paid me N40, 000 and another N10, 000 to my friend called Orafa, and another N70, 000. At another point in time I loaned the defendant N5, 000 which he acknowledged in a written undertaking. I gave him the money in cheque. This is the written undertaking in question”.
As regards the N50, 000 commission as agreed to in Exhibit ‘A’ the respondent testified as follows: –
“I paid the defendant the N50, 000 on the date mentioned in Exhibit ‘A’. The defendant disturbed me too much therefore I had to pay him the N50, 000 before he started pursuing the payment with the BCC Plc” (see page 11 lines 12 – 16)
For the appellant, details of the payments he made to the respondent as per his evidence at the lower court reads thus: –
“The first payment was N300, 000. I gave the plaintiff the A1300, 000. He accepted it. A written agreement backed up the payment in question. I later came and gave him N50, 000. Few weeks after that, plaintiffs friend (PW2) brought a note from plaintiff that I should give him N10, 000 which I obliged, I later gave plaintiff N70, 000 in addition to what I had earlier given to him” (see page 14 of the record).
At line 30 of the said page 14 to lines 1 – 9 of page 15 he added as follows: – The police came from Makurdi. They said:-
“Unless I paid what plaintiff said I owed him before they would release me. My wife went through my friends and gathered N70, 000 which I paid to plaintiff through the police at Makurdi. I then showed the agreement Exhibit ‘A’ to the police and complained to them that plaintiff is still owing me the N50, 000 promised therein; the police asked him and he admitted the debt which the police directed should go to offset my indebtedness to him.”
Now, it is quite apparent that the whole transactions between the parties are covered by documents as shown in the agreements tendered in evidence and duly admitted. Before I proceed it will be expedient to first determine the nexus between Exhibits A and C. The learned counsel for the appellant had contended that it was erroneous for the lower court to have held that they both relate to one transaction. For purposes of clarity, I herein below reproduce the content of the two exhibits.
For Exhibit ‘A’ it reads thus: –
“This is to acknowledge that I Mr. David Umeh of No. 67 J.S. Tarka way Gboko agreed to pay the sum of fifty thousand naira (N50, 000.00) only to David I. Kumbul of No. 69 Akutu Nise Street Gboko South. The said David l. Kubmul having made efforts to ensure that Torque convertor is supplied to Benue Cement Company Plc. Gboko timely, at the cost of Six hundred thousand Naira, (N 600, 000.00).
The said amount shall be paid as soon as the torque convertor is delivered to Benue Cement Company Plc. And the invoice signed to that effect.”
Exhibit C reads thus: –
“This is to state that I, Mr. David Kumbul of No. 69 Akuta Mise Street Gboko South have agreed to pay Mr. David Umeh of No: 67 J.S. Tarka way Gboko the total sum of Five Hundred and Fifty Thousand Naira (N550, 000. 00) only for the Torque convertor received and supplied to Benue Cement Company Plc. Gboko.
That I Mr. David Kumbul have paid three hundred thousand Naira only (N300, 000.00) to Mr. David Umeh on the 20th day July 1998.
That Mr. David Kumbul have agreed to pay the remaining balance of two hundred and fifty thousand naira only (N250, 000.00) on or before the 15th day of August 1998, That this agreement was made in the presence of Hon. Stephen Ugoh, Mr. Ignatius Orafa and Emmanuel Enakorade.”
From the above, there is no doubt that the content of the two documents are distinct from one another though they are both connected with the issue of the torque convertor. But while Exhibit A relates to an undertaking by the respondent to pay the appellant the sum of N50, 000 upon supply and delivery of the Torque convertor, to Benue Cement Company Plc. Exhibit C is an acknowledgment of indebtedness by the appellant to the respondent to the tune of N550, 000 out of which N300, 000 was paid leaving a balance of N250, 000 but to be paid at a set date. In the absence of any specific or implied reference to exhibit ‘A’ in Exhibit ‘C’ (which cannot be taken to be a continuation of the transaction in Exhibit ‘A’) I cannot but agree with learned counsel for the appellant that the two transactions are not the same. Infact the operation of exhibit ‘A’ ended upon the supply and delivery of the torque convertor to Benue Cement Company Plc. Which took place many months before the emergence of Exhibit ‘C’? The issue of whether the respondent actually paid the said N50, 000 commission to the appellant as claimed is a different ball game. In this regard, the learned Trial Judge made the following findings at page 38 of the record: –
“I find as a fact that on the strength of Exhibits D and G defendant still owes plaintiff N135, 000 moreso as at no time did he mention the N50, 000 commission in Exhibit G which I reasonably infer he deducted at source from the money paid by BCC Plc to him for the supplied chattel acknowledged in Exhibit G. coupled with the fact that at the time Exhibit G was made friction had permeated the relationship between plaintiff and defendant placing each of them on guard, therefore, all that was in controversy between them of the material time was expected as becomes reasonable men to appear in paper, and having documented debts mentioned in Exhibits D and G. with emphasis on Exhibit G any further liquidation of the debt by defendant would have also been in form of a document authenticating the liquidation, and any debt owed defendant by the plaintiff would also have been made subject of documentation and in the absence of such documentation, I fail to see where the defendant liquidated the admitted debt of N135, 000 owed the plaintiff”.
I am in total agreement with the above finding of the lower court and have no course to interfere with it. See TAPSHANG V. LEKRET (2001) FWLR (742) 172: EBBA V. OGODO (984) 1 SCNLR 372 AND OBODA V. OGBA (987) 2 NWLR (PT 54) 1.
What is more, the attitude of the appellants towards the issue of the N50, 000 commission lends credence to the assertion of the respondent both in his evidence in chief and under cross examination that he has paid the money to the appellant which evidence was not impugned by the appellant whose claim to the N50, 000 if genuine ought to have ordinarily counter claimed or asked specifically for set off in the circumstance. Furthermore it is amazing that between the 2nd of October 1997 when Exhibit ‘A’ was made and 20-11-98 when Exhibit G was drawn up wherein the appellant acknowledged his indebtedness to the respondent to the tune of N130,000 he never bothered to raise the issue of his N50,000 or deduct it from the amount owed to the respondent. This brings me to appellants issue No 2, whether the sum of N70,000 admitted to have been paid by the appellant to the respondent through the police at Makurdi, does not form part of liquidation of the sum of N135, 000 and whether same ought to be documented.
The respondent in his evidence at the lower court gave details of the monetary transaction between him and the appellant at page 10 and 11 of the record, the portion of which was earlier reproduced in this judgment.
The details of the payments made by the appellant to the respondent as contained in his evidence are at pages 14 and 15 of the record. The relevant portion was also earlier reproduced in this judgment.
The point of departure is that he claimed to have paid the respondent the sum of N70, 000 two times and the second one was at the police station in Makurdi. However the only proof of the payment of any N70, 000 is as contained in Exhibit G. duly signed by the appellant where he also acknowledged that as at the date of the making of Exhibit G. he was still owing the respondent the outstanding sum of N130, 000 from the transaction relating to the supply of the torque convertor to BCC Plc Gboko. Exhibit G was made on 20-11-98 about four months after the making of Exhibit C.
From the tone of Exhibit G, it shows without doubt that it is conclusive of the fact, that after payment of N70, 000 to the respondent on 20-11-98, the appellant duly acknowledged that the balance of his indebtedness to him was N130, 000 which he promised to pay by the end of February 1999.
I am infact tempted to reproduce the contend of the said Exhibit G. it reads thus: –
“This is to certify that Mr. David Kumbul of 69, Akutu Mike St. Gboko South has paid the sum of N70, 000 (Seventy Thousand Naira) to Mr. David Umeh of 57, J.S. Tarka way Gboko on this 20th day of November, 1998.
The amount is part payment of the sum of five hundred and fifty thousand naira (N550, 000) owed to Mr. Umeh as agreed on 20-07-98.
The balance of one hundred and thirty thousand naira (N130, 000) shall be paid by the end of February, 1999.
This is in settlement of Torque convertor supplied to BCC, Plc Gboko and money paid.”
From the above reproduced document duly signed by the appellant and duly admitted in evidence. It seems to me a concrete proof that after the various payment to the respondent, the appellant had an outstanding balance of N130, 000 to clear his indebtedness as regards the Torque convertor. In the circumstance, I entirely agree with the finding of the lower court at page 37 of the record that: –
“Exhibit G. was tendered by the defendant. It is signed by defendant and plaintiff. The body of Exhibit G reads:
Exhibit G. Is without doubt a written admission by defendant that he owes plaintiff N130, 000 from the Torque convertor machine transaction”?
The appellant did not in any way adduce convincing evidence to rebut the fact that he made only one payment of the sum of N70, 000 as disclosed in exhibit G. It behoves him to provide proof of such payment even as claimed by him that it was made at the police station.
The burden of proving a particular fact rests on the party who asserts it. Though this onus does not remain static in civil cases, it shifts from one party to the other where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced.
In the instant case the respondent asserted that he made payments of N70,000 in two instances, the second one being at the police station, Makurdi, he did not however state when and how the first payment was made neither was any document tendered in proof of such as had become customary in his dealings with the respondent. In the circumstance, he is taken to have failed to discharge the onus placed on him to prove the assertion. See OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT 147) 723: DURU V. NWOSU (1989) 4 NWLR (PT 113) 24: IKE V. UGBOAJA (1993) 5 NWLR (PT 301) 539.
On the N5000 loan advanced by the respondent to the appellant and evidenced in writing vide Exhibit D. the appellant claimed to have also repaid the said amount. However the same plague of failure to prove the assertion also afflicts it. He admitted the existence of Exhibit D a debit note which he duly wrote and signed. But contended that he has since repaid the loan of N5000 to the respondent who promised to tear Exhibit D, the said respondent however tendered Exhibit D, as evidence of the appellant’s indebtedness in the sum of N5000. The appellant failed to provide any convincing proof of his assertion that he has repaid the loan. I therefore agree with the finding of the cover court wherein it was held at page 37 of the record as follows: –
“Exhibit D documents the debt. It is signed by defendant and plaintiff. The body of Exhibit D reads: –
‘This is to state that I Mr. David Kumbul of No. 69, Akutu Nise street have received a sum of Five Thousand Naira only (N5000) from Mr. David Umeh. This money will be paid back to him in a nearest time”.
It is therefore my finding also that in the absence of any concrete or convincing rebuttal; Exhibit ‘D’ provides cogent proof that the appellant is still indebted to the appellant to the extent of the amount stated therein.
On issue No. 3. The learned counsel for the appellant submitted that paragraphs 11 and 13 of the statement of defence do not amount to general denials. He added that it was erroneous for the trial court to rely on the case of LEWIS & PEAT LTD V. AKHIMIEN (1976) 7 SC 157 to hold that paragraphs 11 and 13 of the appellants statement of defence amounted to general denials which in law amounted to admission, ruling out further proof. This is because the mode of traverse in Lewis case was different from this case.
Learned counsel further contended that pleading that a particular fact in a paragraph of a statement of claim is false and that a plaintiff shall be required to prove same at the trial is different from a pleading that “defendant puts the plaintiff to proof”. The latter will amount to an admission while the former does not amount to admission.
He also submitted that an appeal court is entitled to interfere with the findings of fact of the lower court where it has failed to make a vital decision on the conflicting evidence before him and to that extend failed to take full advantage of having seen and heard the witness. Learned counsel referred to the finding of the lower court at page 38 lines 15 – 17 and 25 – 27 of the record to submit that they are perverse and not supported by evidence.
On this the respondents counsel submitted that the findings of the lower court is sound and should not be disturbed. He referred to page 37 line 1 – 5 and page 38 of the record where the lower court found that the issue before it was for appellants indebtedness to the respondent.
Now, a traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the plaintiff the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. See OKOROMAKA V. ODIRI (1995) 7 NWLR (PT 408) 411 AND U.B.N PLC V. SCPOK (NIG) LTD. (2005) 2 NWLR (PT 910) 241.
IN NNPC V. SELF (2004) ALL FWLR (PT 223) 1859 this court relying on the case of OSENI V. DAWODU (1994) 4 NWLR (PT 339) 390 held that if a defendant refuses to admit a statement of claim, he must state so expressly and specifically, and he does not do this satisfactorily by merely pleading that he is not in a position to admit or deny a particular allegation and/or that he will at the trial put the plaintiff to the strictest proof thereof.
But in BUHARI V. OBASANJO (2005) ALL FWLR (PT 258) 1604 or (2005) 2 NWLR (PT 910) 241 this same court citing the case of ARCHIBONG V. ITA (2004) ALL FWLR (PT 197) 930 held that a denial by simple traverse that defendant does not admit an allegation is sufficient traverse. This is because, where a defendant specifically denies a fact averred by the plaintiff and goes further to put the plaintiff to strict proof of it thereof, issue is clearly joined in the matter.It seems to me however that the sufficiency or not of a traverse depends on the mode of couching. See OSAFILE V. ODI (1994) 2 NWLR (PT 325) 125.
In the instant case paragraphs 11 and 13 of the appellant’s statement of defence which is in contention reads this: –
“11. Paragraphs 6 and 7 of the claim are false. Plaintiff shall be required to prove same on the standard as required by law at the hearing of this suit.
13. Paragraphs 8, 9 and 10 of the claim are false. At the hearing of this suit plaintiff will proved (sic) averments contend in those paragraphs required by law.”
Going by the authorities of BUHARI V. OBASANJO, ARCHIBONG V. ITA cited (supra) and even OSAFILE Vs ODI (supra). I am inclined to agree with learned counsel for the appellant that the averments in paragraphs 11 and 13 as reproduced above are sufficient traverse and not mere general denials as held by the lower court.
I am however of the firm view that the stance of the lower court in that regard does not affect the correctness of the conclusion reached in the judgment and as such does not constitute a miscarriage of justice.
It is trite law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate court can only do so where such error or mistake has led to a miscarriage of justice and without the error a different decision would have been arrived at by the trial court. See AMAYO V. EFERINMWINGBO (2005) 11 NWLR (PT 992) 669. BANKOLE Vs PELU (1991) 8 NWLR (PT 211) 523 MORA V. NWALUSI (1962) 2 SCNLR 73.
On the issue whether the decision of the court below can be supported having regard to the evidence before the court. This has been extensively dealt with during the consideration of issues 1 and 2 and will thus be superfluous to engage on another voyage of discovery. On the whole and having regard to the above considerations I find issues 1 and 3 partly resolved in favour of the appellant. In the final analysis however, except to the extent of resolution in part, of issues 1 and 3 in favour of the appellant, this appeal is hereby dismissed and the judgment of the lower court delivered on 17th April 2000 is hereby affirmed.
I award a cost of N20, 000 in favour of the respondent.
JA’AFARU MIKA’ILU, J.C.A: I agree.
ADZIRA GANA MSHELIA, J.C.A: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother Oseji, J.C.A. I agree with it and for the reasons he gives, I too dismiss the appeal with N20, 000.00 costs in favour of the respondents.
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Appearances
For Appellant
AND
For Respondent
