DEXAS GLOBAL IND LTD v. AURTHUR FERDINAD LTD (2020)

DEXAS GLOBAL IND LTD v. AURTHUR FERDINAD LTD

(2020)LCN/14870(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/AS/706/2019

RATIO

ADDRESS: PURPOSE OF COUNSEL’S ADDRESS

In BARR. OLALEKAN OYERINDE v ACCESS BANK (2014) LPELR – 23461 (CA), this Court held on the purpose of counsel’s/party’s address; effect of counsel’s/party’s failure to address the Court and the right of counsel to make a final address and effect of breach of such right by the Court thus;
“It is needless to restate that parties to a proceedings have the right of final addresses before judgment in the matter is entered, which right is donated by Section 294 (1) of the 1999 Constitution (as amended). The denial of such a right, where a miscarriage of justice is occasioned, renders the entire proceedings a nullity. See Alhaji Saka Ashiru v. Idris Ayoade (2006) 6 NWLR (Pt.976) 405. In determining whether the refusal of the trial Judge to countenance the appellant’s reply on point of law occasioned a miscarriage of justice as to vitiate the entire proceedings of the lower Court, recourse must be had to the issues raised therein and what impact they would have had on the findings made or arrived at by the Court if same had been considered.”(UNDERLINING MINE)
per WAMBAI, J.C.A (P. 21, PARAS. A – E).
Furthermore, the Court stated thus;
“As regards the place of address of counsel, the law is that arguments of counsel in an address is designed only to assist the Court in arriving at a just decision in the case but are not substitute for cogent credible evidence proffered on the issues at trial that call for determination. See Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787, Daramola v. A.G. Ondo State (2000) 7 NWLR (Pt.665) 440.”
per WAMBAI, J.C.A (P. 44, PARAS. B – D)
From the above case, the issue of filing addresses in any matter is a constitutional issue and a right which attracts a denial of fair hearing which renders the entire judgment void. See; ABUBAKAR DAN SHALLA v STATE (2007) 18 NWLR (1066) 240 AT 290; FORCADOES OVO OBODO v STRAFFORD OLOMU & ANOR (1987) 3 NWLR PT 59 111 AT 123 – 124. PER OBASEKI-ADEJUMO, J.C.A.

PROCESS: WHETHER ATTENTION OF COURT MUST BE CALLED TO A PROCESS FILED

In MT “DELMARS” & ANOR v MT “ANE” (EX MT LESTE”) & ORS (2016) LPELR – 40067 (CA), whether attention of Court must be called to a process filed;
“If a process is filed and is indeed in the Court file, unless the Court’s attention is called to the process, it is presumptive to assume that the Court is aware of the process.”
per IYIZOBA, J.C.A (P. 29, PARAS. D – E) PER OBASEKI-ADEJUMO, J.C.A.

PROCEEDING: EFFECT OF A JUDICIAL HEARING IN VIOLATION OF SECTION 36(1) OF THE 1999 CONSTITUTION

In ZENITH PLASTICS INDUSTRIES LTD v SAMOTEC LTD (2018) LPELR – 44056 (SC), the Court held that;
“…A judicial hearing conducted in violation of the mandatory provisions of Section 36(1) of the 1999 Constitution prima facie occasions a miscarriage of justice, as it has not been conducted in accordance with all the legal norms designed to ensure that justice is done at all costs to all parties.’’
See also; DUKE v GOVERNMENT OF CROSS RIVERS STATE & ORS (2013) 8 NWLR (PT 1356) 347. PER OBASEKI-ADEJUMO, J.C.A.

COUNSEL: DUTY OF COUNSEL IN CONDUCTOF HIS MATTER

This is a reminder to counsel in the conduct of any matter to always put their cards on the table peradventure they may be assisted if not properly placed. See; OYEKAN v AKINRINWA (1996) 7 NWLR (PT 459) 128; OBODO v OLOMU (1987) 3 NWLR (PT 590) 111. PER OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

DEXAS GLOBAL IND LIMITED APPELANT(S)

And

AURTHUR FERDINAD LIMITED RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal flows from the decision of HON. JUSTICE M. N. OBI of the High Court, Asaba delivered on 14th of May, 2019, wherein the learned judge entered judgment in favour of the Respondent in respect of the disputed sum.

The Appellant as Claimant in the trial commenced this action vide a writ of summons for the following reliefs;
a) The sum of N11,653,000 (Eleven Million, Six Hundred And Fifty-Three Thousand Naira).
b) 10% Interest on the Judgment sum from the date of judgment until same is finally liquidated.

The brief facts of the case are that the Appellant supplied a total of 65 packs of electrodes and 8 nos fire extinguishers and also hired some excavators to the Respondent amounting to an outstanding balance of N 11,653,000 which the Respondent have utilized but refused to pay same since 2013.

The Respondent on the other hand, admitted that the Appellant made some supplies of equipment whereupon the Appellant brought an application for judgment of the admitted sum; the lower Court entered judgment for the admitted sum and payment within 21 days and

directed that the matter goes to trial in respect of the disputed sum.

It is the outcome of the trial that is the subject of this appeal. The Appellant filed its Notice of appeal on 16th July, 2019.

The parties exchanged briefs in line with the rules of Court; the Appellant‘s brief was filed on 3rd February, 2020, while the Reply brief was filed on 13th July, 2020. Both briefs were settled by Onoriode W. Ewenode, Esq; David B. Ogbodu; Ehimen O. Cheery (Miss) all of O. W. EWENODE & CO wherein seven issues were distilled for determination;
1. Whether the deliberate refusal of the learned trial judge to consider the Appellant’s reply on points of law that was filed and was before him as at 21st March, 2019 (sic), not a violation of the Appellant’s rights?
2. Was the Learned trial Judge not wrong having acknowledged and admitted Exhibit C3, to turn round and hold that Exhibit C3 was not pleaded?
3. Was the failure of the learned trial judge to properly evaluate Exhibit C3 not responsible for his persevere findings, wrong judgment and the miscarriage of justice in this case?
4. Was the trial Court right to have

lent its aid to the Respondent who was in breach of the order of same Court?
5. Whether the learned trial judge was right to have refused to consider any of the issues for determination raised by the parties but raised his’ suo motu and engaged in the mathematical calculations to favour the Respondent?
6. Is the wrong calculation embarked upon by the learned trial judge and the muddling up of the figures not responsible for the preserve findings and judgment?
7. Was the learned Judge not wrong to have refused the Appellant’s case, when the case was unchallenged, undefended and uncontradicted?

The Respondent filed its brief on 30th June, 2020 settled by Efe Onojafe, Esq of EFE ONAJAFE & CO, wherein he settled two issues for determination;
(1) Whether the evidence led by the Appellant at the lower Court was not at variance with the facts pleaded.
(2) Whether the Appellant’s claim was not bound to fall having regard to the contaminated nature of the claim as couched at the lower Court.

APPELLANTS ARGUMENTS
ISSUE 1
The Appellant submitted that he filed a reply on points of law on 20th March, 2019, a day

before the Court sat and was received by the Assistant Chief Registrar (ACR1) of Effurun High Court at 2.19pm for assessment and necessary fees paid and was taken into the Court file. He contended that the Court confirmed the existence of the process and that it was in the file but failed to look at it because it was not adopted.

Appellant submitted that the process having been filed, formed part of the records of the Court and should be part of consideration in the judgment. He relied on; ABAH v MONDAY & ORS (2015) 14 NWLR (PT. 1480) 569; ELEPHANT GROUP PLC v NATIONAL SECURITY ADVISER & ANOR (2018) LPELR – 45528 (CA); ANWADIKE & ANOR v ANWADIKE (2019) LPELR – 46970 (CA); MR ADEWUMI ADEYINKA & ORS v PASTOR KELVIN AGBAKWURU & ORS (2019) LPELR (CA).

Counsel submitted that the processes not adopted is not a ground for the Court to deliberately ignore same, that it would have guided the Court and it was wrong for the sin of the registrar to be visited on the counsel/party.

The Court ought to have adjourned or allowed time for it to be adopted before delivering the judgment and that this affected the right to fair hearing of

the Appellant. He cited OYEKAN v AKINRINWA (1996) 7 NWLR (PT. 459) 128. He urged that this issue be resolved in the Appellant’s favour.

ISSUE 2
Appellant submitted that Exhibit C3 was admitted and acknowledged in the judgment and that the lower Court turned around to hold that the said document was not before him and was not pleaded. He relied onALHAJI M.K GUJBA v FIRST BANK OF NIGERIA PLC & ANOR (2011) LPELR – 8971 (CA); ILESANMI VS OGUNLEYE (2016) LPELR – 41348 (CA) and urged the Court to resolve it in his favour.

ISSUE 3
Appellant submitted that the lower Court failed in its duty to properly evaluate the documentary evidence, specifically, Exhibit C3 before him. Hence, he arrived at perverse findings which occasioned a miscarriage of justice. He relied on MOHAMMED v ABDULKADIR & ORS (2008) 4 NWLR (PT.1076) 11; WOLUCHEM v GUDI (1981) SC 291; YUSUF v NIGERIAN TOBACCO COMPANY LTD (1977) 6 SC 25; ATUYEYE v ASHAMU (1987) 1 NWLR (PT. 49) 267; TINUBU v KHALI & DIBBO TRANSPORT LTD (2000) 11 NWLR (PT. 677) 171.

On Exhibit C1 – C5, work order and the invoice, he submitted that they are work orders, that is, instructions

of the Respondent to the Appellant, and the Appellant having carried out same, did invoice for each of the work order i.e. invoices, as they were not paid for immediately. The Appellant imputed narratives of outstanding bills in both work orders and invoice, before new balances were captured in both papers (work and order). Both were tendered as Exhibits.

Appellant pointed out that, column of items in C3 stated items unpaid as outstanding and period done in July, as in Exhibit C1 & C2 and Exhibit C3 merely explained the business narrative via invoice No. 3542 tendered as Exhibit C1 at pages 50 – 51 and were acknowledged by the Respondent that there were outstanding payment, items, number of days, unit price and these documents were not objected to when tendered and totals N8,940,000 as pleaded in Paragraph 6 of the Statement of claim, that the lower Court embarked on calculations without inviting counsel to submit, hence, arrived at a wrong finding, a strange figure and no details of how he arrived at this figure of N19,340,000 .

Appellant referred to paragraph 6 of his Statement of claim, that the total in Exhibit C3 is N2,760,000.

N2,760,000, N2,340,000 and N1,080,000 totalling N8,940, 000 and that the narrative therein Exhibit C3, the lower Court would have seen items 4 – 7 therein captured the Appellant’s pleading in paragraph 6.

He argued that, it’s not the business of Court to suo moto raise an issue by going into calculations without inviting parties to address it, he relied on LEADERS & CO LTD & ANOR v BAMAYI (2010) 18 NWLR (PT 1225) 329; IWUOHA & ANOR v NIPOST LTD & ANOR (2003) 8 NWLR, PT 822, P. 308; FIXITY INVESTMENT LTD v GUMEL (2016) LPELR – 41549.

He submitted that the learned trial judge gravely muddled up Exhibits C1 and C2. He urged that the findings be set aside.

ISSUE 4
Appellant submitted that the Respondent was in breach of a Court order wherein he admitted the part of the claim and judgment was entered on 10th April, 2018 and till date has failed to pay.
That the Court indulged the Respondent, he cited FAME PUBLICATION LTD v ENCOMIUM, VENTURES LTD (2000) FWLR (PT9 PG 1440 @ 1445 – 1446; ODOGWU v ODOGWU (1992) 2 NWLR (PT 225) 539

ISSUE 5
Appellant herein complained about the trial judge formulating issues

while raising suo moto, therefore, ignoring the issues formulated by parties, he cited; AUTO IMPORT EXPORT v ADEBAYO & ORS (2002) LPELR – 643 (SC) PP. 55 – 56; EFFIOM ORS v CROSIEC & ANOR (2010) 14 NWLR PT 1213 P. 106; KATTO v CBN (1991) LPELR – 1678 (SC); WAGBATSOMA v FRN (2018) LPELR – 43722 (SC); LEADERS & CO LTD & ANOR v BAMAIYI SUPRA.

ISSUE 6
The Appellant referred to its claim which was for N11,653, 000 (Eleven million, six hundred and fifty three thousand Naira) and 10% on the judgment sum which was affirmed in the judgment, at 3rd paragraph of page 230 of the record, and the findings and holding of the trial Court that the claim of the Appellant was for the sum of N30,653,000 was with all respect most unfounded. The Court cannot on its own import a new claim for the party or open a new vista for the parties, he cited UMAR v BAYERO UNIVERSITY, KANO (1988) LPELR – 3358 (SC).

Appellant submitted that no issues were joined by parties on N30,653,000 and that the finding that the Respondent’s debt exposure is at N19,340,000 is without basis and that there is no evidential legs to stand on as Exhibits

C2, C4 & C5 cannot amount to N19,340,000 as held by the trial Court.

He reiterated that the wrongful calculations and findings of the learned trial judge were perverse as they cannot be supported by evidence and urged this Court to so hold.

ISSUE 7
Appellant submitted in addition that the case was unchallenged, undefended and uncontradicted at trial and the lower Court ought to have accepted the Appellant’s reliefs sought. He referred to; DAGGASH v BULAMA (2004) ALL FWLR (PT. 212) PP. 1666 @ P. 1683 R. 25; AHAMDU BELLO UNIVERSITY ZARIA & ANOR v DR. (MRS) NWAKEGO MOLOKWU (2004) ALL FWLR (PT. 238) 664 (CA); OMOREGBE v LAWANI (1980) 3 – 4 SC 108.
He urged this Court resolve this issue in his favour and enter judgment for him.

RESPONDENTS ARGUMENTS
ISSUE 1
The Respondent, to the question; whether the evidence led by the Appellant was not at variance with the facts pleaded, submitted that the parties and the Court are bound by the pleadings and any not pleaded goes to no issue.

That the Appellant pleaded in paragraph 10 of her claim a total contract sum of N30,853,000 only and out of this the Respondent paid

N19,000,000 leaving a balance of N11,953,000 and Exhibits C1 – C5 were tendered in proof, the total sum of work order and dates that were signed total was N29,686,000 and if what was paid is deducted, it leaves a balance of N 10,686,000 unpaid, while the Appellant contended the unpaid sum to be N11,653,000 only. He relied on AJIDE v KELANI (1985) NSCC 1298 AT 1316.

Respondent contended that the Appellant pleaded in paragraph 10 in page 4 of the Record and submitted that for the Appellant to be entitled to judgment he must lead evidence in line with facts contained in the statement of claim.
He contended further that Exhibits C1 – C5 tendered in proof were irreconcilable and in conflict with the pleadings, he cited GEORGE v DOMINION FLOUR MILLS LTD (1965) ALL NLR (REPRINT) 70 AT 71.

ISSUE 2
Respondent submitted that the claim for the sum of N11,653,000 only, is a contaminated claim and that they may be valid, but cannot stand independently of the bad and invalid reliefs. He referred to Order 15 Rule 10(3) of Delta State High Court Rules, 2009. He stated that the claim of the Appellant is as stated in paragraph 16 of the claim and that no evidence

was led to show what each of the items costs and the amount owed, also, the cost of hire of excavators and bulldozers for each day the Respondent engaged the services of those equipments, and that the Exhibits do not tally with the pleadings, he cited NDIC v GOVERNING COUNCIL ITF (2012) 9 NWLR (PT 1305) 252 CA.

He contended that some of the claims stated were due in 1998 -2004 and were caught by statute of limitation. He canvassed that the claims were lumped and were not severable, he referred to Order 15 Rule 10 (3) of the High Court of Delta State (Civil Procedure) Rules, 2009.

He submitted that special damages must be proved with credible and uncontradicted evidence, he relied on SALAKO v WILLIAMS (1998) 11 NWLR (PT 574) 505 AT 522 PARA G – H.

Respondent urged the Court to discountenance the issue of reply on point of law, that it amounted to a storm in a tea cup, he relied on ODOFIN v MOGAJI (1978) 11 NSCC 275, that a reply is not an opportunity to expand the arguments and the necessary issues already before the Court, and the Court considers admissibility, relevancy, credibility, conclusive and probability of evidence given.

APPELLANTS REPLY
The Appellant urged the Court to discountenance the Respondent’s issues as they are not from the grounds of appeal, he cited AKINLAGUN v OSHOBOJA (2006) ALL FWLR (PT 325) P5; CHUKWU v STATE (2007) ALL FWLR (PT 364) 268 @ 283.

In reply to issue 1, he submitted that the Respondent did not lead evidence and cannot use his brief to supplant it, he relied on AYANWALE v ODUSAMI (2012) ALL FWLR (PT 610) 1246; OBASUYI & ANOR v BUSINESS VENTURES LTD SUPRA.

Appellant submitted that the Respondent cannot give a calculation in its Respondent’s brief, having refused to defend the claim at the lower Court, that the calculations were not canvassed in the pleadings and that AJIDE v KELANI is not applicable.

On issue 2, Appellant submitted that the submissions in the brief are misguided, that the claim is not for special damages. He cited OBASUYI v BUSINESS VENTURES. That special damages were neither pleaded nor specific items of loss, also, issues were not joined on special damages, this cannot be raised for the first time without leave.

By Order 15 Rule 4 (1) of the High Court of Delta State (Civil Procedure) Rules, 2009, he

stated that having not pleaded this issue, he cannot raise it. Issues not pleaded such as statutes of limitation amounts to springing a surprise, he cited; GEORGE & ORS v DOMINION FLOUR MILLS (SUPRA); NATIONAL INVESTMENT PROPERTY CO. v THE THOMPSON ORGN (1969) NMLR PG 99 @ 104; NSIRIM v NSIRIM (2002) 2 SCJ 46 @57
Appellant submitted that the case is based on liquidated sum (debt owed simpliciter), he cited AMASIKE v REGISTRAR GENERAL OF CORPORATE AFFAIRS COMM (2010) ALL FWLR (PT. 541) P. 1406 AT 1469, that in an uncontested case, if the evidence in a case goes one way; no evidence on the issues from the Respondent’s side, the trial Court should have no alternative but to accept the evidence given by the Appellant.
He urged this Court to resolve the issues against the Respondent.

RESOLUTION
The issues of the parties are somewhat different except for the Respondent’s issue 2 which touches on a small aspect of the grounds of appeal, he mainly left the issues unanswered or raised different issues in this appeal which I shall address later.
The Appellant on his part raised 7 issues from his 14 grounds of appeal which in my

opinion ought to have been collapsed into 3 main heads, however, I shall adopt them as issues for resolution of this appeal but shall split like issues into groups for apt resolution; wit; ISSUE 1 (Issues 1 & 4), ISSUE 2 (Issues 2, 3 & 6) ISSUE 3 (Issues 5, 6 & 7).

ISSUE 1 (Issues 1 & 4).
This issue deals with the learned trial judge’s findings at page 226 -228 of the record, where he stated thus;
“When this matter came up for adoption of addresses, the claimants reply on point of law was not in the Court’s file. The Claimant’s counsel only adopted his address. The reply on points of law has now found its way to the file after the last sitting. However, the Claimant has taken no step to seek to adopt it. It would be safe to say that the learned counsel to the Claimant has abandoned the reply on points of law.”

From the above, it is clear that the lower Court did not intend and did not take the Reply into account in his judgment.

In BARR. OLALEKAN OYERINDE v ACCESS BANK (2014) LPELR – 23461 (CA), this Court held on the purpose of counsel’s/party’s address; effect of counsel’s/party’s

failure to address the Court and the right of counsel to make a final address and effect of breach of such right by the Court thus;
“It is needless to restate that parties to a proceedings have the right of final addresses before judgment in the matter is entered, which right is donated by Section 294 (1) of the 1999 Constitution (as amended). The denial of such a right, where a miscarriage of justice is occasioned, renders the entire proceedings a nullity. See Alhaji Saka Ashiru v. Idris Ayoade (2006) 6 NWLR (Pt.976) 405. In determining whether the refusal of the trial Judge to countenance the appellant’s reply on point of law occasioned a miscarriage of justice as to vitiate the entire proceedings of the lower Court, recourse must be had to the issues raised therein and what impact they would have had on the findings made or arrived at by the Court if same had been considered.”(UNDERLINING MINE)
per WAMBAI, J.C.A (P. 21, PARAS. A – E).
Furthermore, the Court stated thus;
“As regards the place of address of counsel, the law is that arguments of counsel in an address is designed only to assist the Court in arriving at a

just decision in the case but are not substitute for cogent credible evidence proffered on the issues at trial that call for determination. See Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787, Daramola v. A.G. Ondo State (2000) 7 NWLR (Pt.665) 440.”
per WAMBAI, J.C.A (P. 44, PARAS. B – D)
From the above case, the issue of filing addresses in any matter is a constitutional issue and a right which attracts a denial of fair hearing which renders the entire judgment void. See; ABUBAKAR DAN SHALLA v STATE (2007) 18 NWLR (1066) 240 AT 290; FORCADOES OVO OBODO v STRAFFORD OLOMU & ANOR (1987) 3 NWLR PT 59 111 AT 123 – 124.

In line with the above, the queries here are; whether the reply on point of law not taken into consideration was such that has led to a miscarriage of justice? What issues were raised and what impact would they have had on the findings made or arrived at by the lower Court if same had been considered?.
This calls for an examination of the reply filed on 20th March, 2019 accessed by ACR1, duly paid for as endorsed below the process.
On 21st March, 2019, the parties adopted their address, the Appellant

simply adopted his address and omitted to mention the reply on points of law which was filed a day before the adoption at 2.19pm. This document obviously was not in the judge’s file on the day of adoption but was later put in the file by the Court official–the Registrar and was noticed by the learned trial judge thereafter. The lower Court neglected to observe the details of filing endorsed under. It is trite that after a counsel has done all he is required to do, it behooves on the Registrar to do his part, failure of which will not be attributed to that party who filed. The learned trial judge ought to have invited the parties to address on the issue and not trivialize same and imply abandonment.
In MT “DELMARS” & ANOR v MT “ANE” (EX MT LESTE”) & ORS (2016) LPELR – 40067 (CA), whether attention of Court must be called to a process filed;
“If a process is filed and is indeed in the Court file, unless the Court’s attention is called to the process, it is presumptive to assume that the Court is aware of the process.”
per IYIZOBA, J.C.A (P. 29, PARAS. D – E)
Again, the content of the

reply was to draw the attention of the Court to the contempt of the Respondent in filing an address in total disregard of the Court order to pay the judgment entered on the admitted sum by the Defendant/Respondent. In addition, it drew the attention of the Court to the claim of the Appellant to the liquidated sum and not special damages, and that the Defendant deliberately refused to defend the contested sum and was foreclosed from defending after their counsel withdrew representation with Court order. Finally, the fact that money owed and demanded did not require specific proof of items and having not been contested, the result should be judgment for the Appellant.
The learned trial judge on his own calculated the claims per the Exhibits and mixed up the Exhibits, misplaced the proof demanded in the case and followed the calculations of the Respondent, thereby was misled. He did not need the guidance of the reply on points of law to avoid this because the reply did not address on these areas. Therefore, the failure to consider the reply on points of law is not fatal to the conclusion of the lower Court, only to this extent, but had in so doing lent its

aid to the Respondent who was in breach of the order of Court.
In ZENITH PLASTICS INDUSTRIES LTD v SAMOTEC LTD (2018) LPELR – 44056 (SC), the Court held that;
“…A judicial hearing conducted in violation of the mandatory provisions of Section 36(1) of the 1999 Constitution prima facie occasions a miscarriage of justice, as it has not been conducted in accordance with all the legal norms designed to ensure that justice is done at all costs to all parties.’’
See also; DUKE v GOVERNMENT OF CROSS RIVERS STATE & ORS (2013) 8 NWLR (PT 1356) 347.
In the case at hand, the Appellant did not adopt the reply, the counsel who filed same omitted or forgot to inform the Court of the existence of that reply filed late the day before. This could have drawn the attention of the trial judge and called for the copies of the process or confirmed service from the Respondent and avoided this scenario.
This is a reminder to counsel in the conduct of any matter to always put their cards on the table peradventure they may be assisted if not properly placed. See; OYEKAN v AKINRINWA (1996) 7 NWLR (PT 459) 128; OBODO v OLOMU (1987) 3

NWLR (PT 590) 111.
I resolve issue 1 against the Appellant and issue 4 in favour of the of the Appellant

ISSUE 2 (Issues 2, 3 & 6)
The learned trial judge admitted Exhibits C1 – Work Order of 24th July, 2013 LPO NO. ELP11BO – 55; C2 – 6th August, 2013 LPO NO. ELP11BO – 55; C3 – 23rd August, 2013 LPO NO. ELP11BO – 55; C4 – 19th September, 2013; C5 – 5th November, 2013 at trial of the case at page 219 of the record, without objections. The Defendants/Respondents refused to cross examine nor defend their statement of defence, which was therefore deemed abandoned at that stage. See pages 219 – 221 of the record.

The lower Court at pages 228 -230 of the record held that the facts of supply of cartridges was at variance with the pleading in that Exhibit C1 is an Invoice for N 2,275,000 not N 2,373,000 as pleaded and have different amounts; Exhibit C3 was N 16,613,000 while it does not appear on the pleadings and differs from paragraph 6 and at page 230 the learned trial judge stated that “clearly Exhibit C3 was not pleaded and would be discountenanced”.

Obviously, this evaluation flows from the contention of the

Respondent who called no evidence at page 2 of his brief and succeeded in muddling the figures on the Exhibit which the Court followed hence, it arrived at a mixed up calculation.

In the first place, the parties agreed that the work order was approved by the Defendant/Respondent as done on the face of the document, while the Appellant generated the invoice. Having not objected on the admission of documents and refused to cross examine same, the Respondent could not by his brief be adducing evidence from this point of view. See POLYCARP DANLADI G v NASIR AHMED EL – RUFAI (2015) LPLER – 40767 (CA); STERLING BANK PLC v P. A. OYOYO, ESQ (2018) LPELR -46748 (CA)

I shall examine the Exhibits and figures therein, and place same side by side the statement of claim to see if indeed the Appellant’s claim of mixed up calculations is correct;

Exhibit C1 is the work order of 24th July, 2013 pleaded in paragraph 4 of the claim; N2,373,000 which is reflected in page 21 of record work order. Exhibit C2 is the work order of 6th August, 2013 which has no outstanding payments therein. It has the sum of N 5,300,000 on the work order and invoice at page 19 and its pleaded

in paragraph 5 of statement of claim.

Exhibit C3 is the LPO & invoice of 23rd August, 2013 and it is referred to in paragraph 6 of the statement of claim at page 4 of record, where the hiring was for 3 excavators and 1 bulldozer for a total of 74 days at N120,000 per day totaling N8,940,000.

At page 26 of the record is Exhibit C3, it’s on the Respondent’s letter headed paper duly signed which has outstanding payments of (C1, C2 & C3) of month of July – items 1, 2 & 3 totaling: N5,300,000.00 + N2,373,000.00 (N2,275,000.00 + N 98,000.00), totals N7,673,000.00.

This is a combination of Exhibits C1 and C2 (N98,000 already factored in Exhibit C1 as items 4 & 5), While items 4, 5, 6 & 7 contained in Exhibit C3 are the present orders of 3 excavators and 1 bulldozer in the month of August, the invoice is on Dexas Global Industries Ltd letter headed paper and it covers the same and its signed by both Managing Director and Admin Manager. The invoice of N98,000 is reflected in the invoice with totals N8,940,000 pleaded in paragraph 6 of the claim.

When the outstanding are taken into account as reminders of

unpaid work done and not factored. The learned Trial judge merely took the figures reflected as balances forgetting that the admitted sum had been entered as judgment. Probably a neater job would have been for parties to file amended pleadings, taking into account the admitted balances, since trial was in respect of the disputed sum.

The evidence is that N19,000,000 has been paid into the Appellant’s account leaving a balance of N11,953,000, see pages 17 – 18 of the record. The invoices would not change since it covers the entire transaction but the pleadings would have to change, in providing a guide to the history.
Captured at page 28 is the work order and page 29 for invoice for Exhibit C4 without any outstanding, the pleading in paragraph 7 of the statement of claim more particularly totals N 8,640,000.

Exhibit C5 is reflected in the work order/invoice of 5th November, 2013 for N2,04,000.00, 1 excavator; 11th October – 30th October, LPO ELPIIBO-55 is pleaded in paragraph 9 of the statement of claim and this document is at page 24 & 25 of the records, short of any outstanding.

A total of all figures in Exhibits less outstandings therein

is N27,293,000, taking the sum paid into account of N19,000,000 before the suit balance is N8,293,000 (N11,653,000). Judgment has been entered for admission in the pleading in the sum of N4,260,000 (four million, two hundred and sixty thousand Naira), see enrolment of order at page 134 of record, therefore less this amount, the disputed is N 4,033,000.

The Claimant/Appellant made a claim that the total work issued was to the tune of N30,653,000 in paragraph 10 of the statement of claim. When all the Exhibits are taken into account, there is a short fall of N3,360,000 not accounted for by way of proof. No exhibit was tendered in proof of this.

I find adequate pleading in paragraph 8 of the statement of claim of a work order and invoice to the tune of N3,360,000 but no such documents were tendered during proceedings, nor mentioned in the address. Definitely, this goes to no issue and is deemed abandoned. See; GEORGE v DOMINION FLOUR MILLS LTD (SUPRA).
Therefore, when the figure of N3,336,000 is added to N27,293,300 it adds up to N30,653,300” confirming the missing link.
Having failed to adduce adequate documents backing this figure

it is refused. The amount the Appellant is entitled to, taking into account deductibles, is N4,033,000.
In the light of the above analysis, I agree that the learned trial judge erred in not properly evaluating the exhibits before him, as to properly reflect the state of the pleadings and therefore arrived at a perverse finding and therefore miscarriage of justice, see;MOHAMMED v ABDULKADIR & ORS SUPRA; YESUF v NTC LTD SUPRA .
In ABU LAMIDI v THE STATE (2016) 41320 (CA) the Court held on- Purpose of tendering exhibits;
“Indeed, this Court had occasion to pronounce on the purpose of exhibit in the case of Buba v. State (1992) 1 NWLR (Pt. 215) 1 at 17, per Makhtar, JCA, thus: “Exhibits are not tendered and admitted in Court for the fun of it, they are for a purpose albeit to assist in determining the relevance of the exhibits to the case. Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case.” See also, Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297 at 314 at 314-315 and R V. Ukpong (1961) 1 ALL NLR 25.”
per DANJUMA, J.C.A (PP. 47-48, PARAS. E – B)

The effect of a failure to cross examine a witness on material point is a tacit acceptance of the truth of the evidence of the exhibit, see;GAJI v PAYE (2003) 8 NWLR PT 823. From the above, it is crystal clear that the lower Court failed to carry out a thorough examination of the documents. It followed the train of the Respondent; hook, line and sinker, and came to a wrong finding.
See; AJAGBE & ANOR v OYEKOLA & ORS (2014) LPELR – 19840, where this Court considered whether where a trial Court fails to examine documents tendered before it, an Appellate Court is in a good position to evaluate such exhibits and held thus;
“The lower Court was clearly in error in completely ignoring the two judgments comprised in Exhibits P2 and P5 in its deliberations and in making no pronouncement on them in its judgment. The duty incumbent upon this Court, in the circumstances, is to consider Exhibits P2 and P5 and to pronounce on their usefulness and their possible effect, if any, on the respective cases put forward by the parties at the trial – Kolawole V. Folusho (2009) 8 NWLR (pt. 1143) 338 and Ovunwo V. Woko supra.”
per ABIRU, J.C.A (P. 57, PARAS. B – D)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the basis of the proper examination of the documents tendered viz a viz the state of pleadings, the learned trial judge missed it when he held that the appellant failed to plead details in Exhibit C3 and C5, when in fact, the details in the Exhibits tendered were duly pleaded with particularity to details.

Furthermore, it is obvious and I agree with the Appellant’s counsel that the wrong calculations embarked on by the lower Court using the details as supplied by the Respondent, led to the muddling up of the figures and preverse findings therein.
The lower Court ought to have called for address of counsel on the issues instead of embarking as done, suo motu.
On the issue that the lower Court did not consider their issues for determination but formulated issues suo motu, the Courts have held on the question- Whether an Appeal Court can adopt or formulate issue(s) for determination
“Indeed, the Court of Appeal has the power to adopt or even formulate issues that in its view would determine the real complaint in the appeal. See Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) p. 582; Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) p. 146.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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per RHODES-VIVOUR, J.S.C (P. 19, PARAS. B – C).
The issues formulated by the Court, must be such that would determine real issues between parties, but the caveat is, if the issues are going to be different from the point of determination and strange to the issues set by parties, a Court must call the attention of parties to address and not suo motu raise and decide same. See; AUTO IMPORT EXPORT v ADEBAYO & ORS (SUPRA); KATTO v CBN (SUPRA).
The findings in this regard are set aside. I resolve issues 2, 3 & 6 in favour of the Appellant.

ISSUE 3 (Issues 5 & 7)
The lower Court had entered judgment on admission contained in the statement of defense filed by the Respondent and also put a time frame within which to pay same. The Respondent in defiance of the order failed to pay, and filed a written address in the hearing of the disputed fact, without the Court’s resistance of a breach of its order. It’s trite that a Court must protect its order. The omission of the lower Court amounted to indulging the Respondent in an act of contempt.

Furthermore, having found that there was no serious defence to the action, having not led any

evidence in support of its defense and not tendered contrary Exhibits, the suit was basically uncontested and amounted to a tacit admission of all facts therein the statement of claim, see; KONWEI v IGP & ORS (2007) LPELR – 8905 on the question; Whether where the evidence adduced before a trial Court is unchallenged, the Court still has a duty to evaluate same;
“I will start with Issue 2, which is hinged on the lower Court’s statement that – “It must be noted that it is not a general rule that whenever the evidence tendered by the Plaintiff as in this case is unchallenged and uncontradicted, the Plaintiff is automatically entitled to Judgment. That cannot be true. The Court is still entitled, even in an undefended case, to be satisfied that the evidence adduced is credible and sufficient to sustain the claim before the Court”. It is the Appellant’s contention, citing Ajero &. Anor v. Ugorji & Ors (1999) 71 LRCN 2875 & Ijebu-Ode Local Government v. Balogun &. Co. Ltd. (1991) 2 LRCN 289, that since there was no evidence to challenge this case in the lower Court, he had proved his case on a minimum of proof or balance of probability

as required by law and he is therefore entitled to Judgment. However, that cannot be so. The lower Court was right; in an undefended action, it is still open to the trial Court to evaluate the evidence and satisfy itself that, that the Plaintiff, on his own showing, has established his claim on credible evidence. Thus, the trial Court is entitled to scrutinize the evidence adduced and ascertain whether it bears relevance to the facts pleaded and the issues joined – see Abdullahi v. MILAD, Kaduna State (2004) 5 NWLR (Pt. 866) 232 & Udoh v. Okitipupa Oil Palm (2005) 9 NWLR (Pt. 929) 58. In this case, the lower Court was on the right track when it proceeded to evaluate the issues raised by the Appellant vis-a-vis the evidence before it.”
per AUGIE, J.S.C (PP. 5 – 7, PARAS. E – A).
Therefore, the Court still has a duty to evaluate the evidence adduced before coming to a just conclusion. In cases of this nature, the burden of proof is minimal.
NIGERIAN FLOUR MILLS & ANOR v NIGERIAN CUSTOM BOARD & ORS (2016) LPELR – 41256 (CA), this Court emphasised that;
“Festinately, evidence even if uncontroverted and unchallenged

still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B.B.B MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and BUHARI vs. OBASANJO (2005) 8 MJSC 1 at 268. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659: The argument that because the plaintiffs evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff See also UWAJE vs. MADUEMEZIA (2015) LPELR (24543) 1 at 25-26. So a Court still has the bounden duty to evaluate the evidence adduced by the 3rd Respondent to see if it established and proved his claim for special damages.”
per OGAKWU, J.C.A (P. 17, PARAS. A – F).
In the light of the position of the Courts taken above, the Court still had a duty to evaluate the evidence on record, but in this

case, the lower Court instead of granting what was in his view proved when it was a liquidated debt claim and not a claim for special damages which requires line by line precepts but one that should be granted on what was proved as liquidated sum owed instead the lower Court refused the claim.
I resolve the issues 5 & 7 in favour of the Appellant.

The Respondent has raised in his brief at page 6, a faulty analysis of the Exhibits which he participated in the production, having failed to adduce evidence in support of his claim, cannot put up a table reflecting double figures, without reading the invoices and work order to understand the description therein.

Furthermore, the Respondent raised the issue of Order 15 Rule 10(3) of the Delta State High Court Rules on the rule of contamination and I wish to state categorically that it does not apply to this action. This is a liquidated claim for money owed, demanded and not paid and interest thereon. It stands on its own, usually this is an action taken under the summary judgment, but the Respondent disputed part of the claim but refused to adduce evidence in support of its defence, hence it went to

trial.
The Respondent cannot set up a different claim for the Appellant, I refused to be swayed by this argument as most importantly, he ought to raise same at the lower Court and cannot raise it without leave of Court and it does not arise from the grounds of appeal.
It is a strange argument which ought to be raised in a cross appeal or Respondent’s notice. See; AKINLAGUN v OSHOBOJA (SUPRA).

The Respondent also raised the issue of statute barred of statutes of limitations. I have examined the statement of defence and find that it has not been pleaded, this is an afterthought and is caught by Order 15 Rules 4(1) of the Delta State High Court Rules. It is a specific defence which must not take the opposite party by surprise.
I shall discountenance same.

In my view, the two issues of the Respondent have only been raised in the brief and without leave. They are also not answers to the Appellant’s issues raised, it is in form of a Respondent’s notice or a cross appeal, but for whatever the Respondent terms it, it stands as an anathema to all rules and procedural laws of appeal.

He has also submitted that the claim is for

special damages, this is highly mischievous and misleading. They both have different parameters and standard of proof. I therefore must state that the Respondent is trying to put up a defence he failed to do when he lost the opportunity provided in the lower Court.

It is trite that no matter how brilliant an address or brief is, it cannot take the place of evidence See;AYANWALE v ODUSAMI (2012) ALL FWLR (PT 610) 1246.
In NNADI & ORS v ARIRI (2015) LPELR- 24575 (CA) this Court held thus;
“Firstly, address of Counsel no matter how erudite, no matter how brilliant and no matter how scintillating or fanciful cannot take the place of hard facts or evidence on record. In other words, no amount of ingenious address by Learned Counsel can be a substitute for evidence the Respondent ought to have pointed out from the record. Address of Counsel cannot be in vacuo. There must be evidence to shore it up. See: BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PART 1332) 209 at 244 B – C per FABIYI, JSC who opined; “It is not clear to me why the above submission of Senior Counsel to the Respondent has come up. There is no

evidence on record that Russal of Russia has taken possession of ALSCON and now fully operates it. Such forms part of address which is ordinarily designed to assist the Court. It is not evidence and no fine speech in an address can make up for lack of evidence to prove or establish a fact or else disprove and demolish a point in issue.”
per IGE, J.C.A (P. 38, PARAS. A – F).

The Appellant has therefore at trial proved the liquidated debt to the tune of N4,033,000 out of the disputed debt PLUS the admitted debt of N4,260,000 for which judgment was entered now totalling N8,293,000.

The appeal is allowed and the judgment of DELTA STATE HIGH COURT EFFURUN per M. N. OBI, J is hereby set aside and judgment is entered in favour of the Appellant in the sum of N8,293,000.
Cost of N250,000 is awarded in favour of the Appellant.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal has merit. The evidence led and the exhibits tendered were not examined. The Appeal ought to be allowed and decision of the trial Court be set aside, for, not only its irregularity, but perversity, in that

admissible evidence was neither evaluated nor address sought from parties where necessary, rather than the suo motu and irregular consideration of unpleaded issues garnered from the Respondent that was countenanced.

I concur that the appeal be allowed and the trial Court’s Judgment be set aside, and an order tor the total adjudged sum of money admitted, and the proved sum and costs as found and ordered by the lead judgment herein, be decreed for the Appellant herein.

It is so ordered, as it appears that the admitted sum was, at the trial omitted in error. By variation, it is so added and reckoned as a part of the total indebtedness found in favour of the Appellant.

Appearances:

Ewenode W. Onoriode, with him, Etimen O. Cheery For Appellant(s)

Efe Onojafe For Respondent(s)