EZENDUKA v. OKPARAEKE
(2020)LCN/14312(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, June 15, 2020
CA/AW/584/2014
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
EMEKA EZENDUKA APPELANT(S)
And
EMEKA OKPARAEKE RESPONDENT(S)
RATIO
WHETHER OR NOT THE TRIAL COURT MUST CONSIDER AND EVALUATE THE RELEVANT DOCUMENTS TENDERED AND ADMITTED IN EVIDENCE
The law is trite that a trial Court must consider and evaluate the relevant documents tendered and admitted in evidence before it vis-a-vis the oral evidence adduced in support thereof in order to arrive at a just decision. In Chief Adeoye Adio Fagunwa & Anor v. Chief Nathaniel Adibi & Ors (2004) LPELR – 1229 (SC) the Supreme Court held per Tobi, JSC, as follows:
“A trial Judge must consider relevant exhibits tendered before him along with oral evidence. He cannot take only the oral evidence and throw away documentary evidence which is primary evidence under Section 94(1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990. PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Respondent as Plaintiff filed a Writ of Summons and Statement of Claim against the Appellant as Defendant before the High Court of Anambra State, Onitsha Judicial Division on 20th October, 2012 seeking for the following reliefs:
i. An Order of this Honourable Court compelling the Defendant to pay to the Plaintiff the sum of N8,473,500.00 being the outstanding debt arising from the supply of unwanted electric tricycle.
ii. N10,000,000.00 (Ten Million Naira) being general damages against the Defendant for breach of contract (pages 1 to 9 of the record of appeal).
On being served with the Plaintiff’s Originating Processes, the defendant filed a statement of defence containing 16 paragraphs traversing all the averments in the Plaintiff’s pleading seriatim (pages 40 to 47 of the Records). The Defendant also filed a counter-claim wherein he claims against the Plaintiff as follows:
a. Payment of balance of Two Million, One Hundred and Fifty-Two Thousand, One Sixty Naira, being outstanding sum for the purchase of 42 pieces of electro motor tricycles.
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- 21 percent interest on the outstanding sum of N2, 152, 160 per annum from the 1st day of July, 2011, until the final payment of the debt.
c. One Million Naira general damages. (pages 48 of the Records).
Both the Statement of Defence and counter claim dated 10th October, 2012 were filed on 11th October, 2012.
On being served with the Defendant’s Statement of Defence and Counter Claim the Plaintiff filed a Reply to the Defendant’s Statement of Defence and a Statement of Defence to the Defendant’s Counter Claim. (pages 72 to 80 of the Records).
Issues having been joined, the matter went to trial. The plaintiff and the defendant testified in support of their respective pleadings and closed their cases. Thereafter, parties filed their respective written addresses wherein they formulated two issues each. The said written addresses were adopted by learned counsel and the matter was adjourned to 29th September, 2014 for judgment. In his judgment, the learned trial Judge, after reviewing the oral and documentary evidence adduced by the parties, held inter alia, as follows:
“I am more inclined to believe the case put forward
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by the Plaintiff on this issue that the Plaintiff requested the Defendant to supply him with Motor Tricycle in use in Nigeria which the Defendant admitted is petrol powered. There is nothing on the face of Exhibits B and C that suggest they are electro powered.
I think, there is an implied condition in the agreement between the parties that the motor tricycle to be supplied would correspond to those in use in Nigeria which from the evidence of the parties points to the fact that it is petrol-powered…
By the provisions of the Sale of Goods Act, where a buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of description, which it is in this course, the seller’s business to supply, there is an implied condition that the goods shall be reasonably fit for such purposes. (Pages 177 to 178 of the Records).
In his finding at page 181 of the Records the learned trial Judge held thus:
“From the facts of this case before me, the Plaintiff did not accept the type of motor
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tricycle sent to him by the Defendant. He rejected same upon seeing the contents of the container. He was persuaded by the Defendant and Chima Anyaoha, to offload same and pack them which he did. He was persuaded by them to assemble same and test run it which he did and still rejected the goods thereafter. I do not believe the evidence of the Defendant in this regard that he was arrested when he went to collect the balance of his money from the Plaintiff. The testimony of the Defendant and his deposition in chief in this regard are at variance… Although a valid contract exists between the parties, however, I am of the view that the Defendant is in breach of that contract as he failed to comply with an implied condition of the contract. It is my view that the Plaintiff under the circumstance is entitled to recover the money he expended in the failed contract…
There is evidence that upon rejection of the goods by the Plaintiff on its delivery, the Defendant persuaded the Plaintiff to pack the goods until he comes to Nigeria from China.
In the circumstances, it is my view that the counter claim fails, the Plaintiff cannot be held liable to
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pay the balance for goods he rejected upon delivery…
It is my view therefore, that the Plaintiff’s case succeeds, the Defendant shall pay to the Plaintiff the sum of N7,141,500.00 being the outstanding debt arising from the supply of unwanted electronic tricycle.
The Defendant shall also pay to the Plaintiff the sum of N300,000.00 as damages for breach of contract”. (The judgment is at pages 165 to 183 of the record of appeal).
The Defendant was aggrieved with this decision, he filed a Notice of Appeal containing 5 grounds of appeal on 13th October, 2014. (Pages 184 – 189 of the Records). The record of appeal was compiled and transmitted to this Court on 27th November, 2014. However, the Appellant filed an Additional Ground of Appeal on 17th December, 2014 together with the Appellant’s Brief of Argument. Thus there are six (6) grounds of appeal. The Appellant’s brief was settled by Nnamdi Ibegbu Esq, (SAN). It was filed on 17/12/2014. Learned senior counsel to the Appellant formulated 5 issues from the 6 grounds of appeal as follows:
1. Did the Respondent send Exhibits which are A1 and A2 photographs of
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the tricycles to the Appellant to determine what he wanted, which formed the basis of his claim, and was the lower Court right to have entered judgment for the Respondent despite the fact that he stated that:
“There was no evidence that the Plaintiff sent any E-mail to the Defendant. I do not believe that he handed over to the Defendant Exhibits A1 and A2 or sent same to him.” (Ground 1).
2. Did the lower Court err in law by rejecting in evidence on the strength of Section 84 (2) of the Evidence Act, Exhibits B, C and I as computer printout despite the fact that they are admissible, none of the parties having given evidence of use of computer to obtain the e-mails? (Ground 2).
3. Was the lower Court right to have based his judgment on a purported agreement reached and signed by the parties at the Police Station under duress and rejecting the testimony of the Appellant with respect to what transpired at the Police Station and packing of the electric operated tricycle? (Grounds 3 and 4).
4. Was the lower Court right by holding that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant, and
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that there was no proof that the Appellant asked the Respondent to pack the goods until he comes to Nigeria from China? (Ground 5).
5. Is it right to conclude that the Appellant is fraudulent by so doing entering judgment against him and making such orders made in the matter without Respondent pleading particulars of fraud? (Ground 6).
The Respondent’s Brief of Argument was settled by C.I. Okoye Esq. It was filed and served on 17th January, 2019. Learned counsel to the respondent formulated five issues for determination as follows:
1. Whether the learned trial Court was right when he failed to reply on the evidence of the Appellant and the Respondent, and held that: “There was no evidence that the Plaintiff sent any E-mail to the Defendant. I do not believe that he handed over to the Defendant Exhibits A1 and A2 or sent same to him”, and also failed to rely on the evidence of the Appellant that the parties agreed on electro-tricycle since Appellant admitted under cross-examination that there is no evidence between the parties regarding the type of motor tricycle to be supplied? (Ground 1).
2. Did the lower Court err in law
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by rejecting in evidence on the strength of Section 84 (2) of the Evidence Act Exhibits B, C and I as computer printout despite the fact that they are admissible, none of the parties having given evidence of use of computer to obtain the e-mails? (Ground 2).
3. Was the lower Court right to have based his judgment on a purported agreement reached and signed by the parties at the Police Station under duress and rejecting the testimony of the Appellant with respect to what transpired at the Police Station and packing of the electric operated tricycle? (Grounds 3 and 4).
4. Was the lower Court right by holding that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant, and that there was no proof that the Appellant asked the Respondent to pack the goods until he comes to Nigeria from China? (Ground 5).
5. Is it right to conclude that the Appellant is fraudulent by so doing entering judgment against him and making such orders made in the matter without Respondent pleading particulars of fraud? (Ground 6).
The appellant did not file any Reply Brief. I noted that apart from issue one which was framed
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differently by the Appellant, the other issues are couched the same word for word. I will therefore adopt the issues formulated by the appellant in determining this appeal.
In his submission while arguing issues 1, learned senior counsel to the appellant submitted that the Respondent pleaded at paragraph 5 of his pleadings that on 7/7/2011, he sent to the Appellant through his e-mail box some picture samples of some tricycles which are petrol powered and contracted with the Appellant for the supply of such tricycles (popularly called Keke Napep) from China to Nigeria. The Respondent also made similar averments in paragraph 5 of his Written deposition at page 11 of the Records.
That in his pleadings at paragraph 5 of his Statement of Defence, the Appellant denied the averment by the Respondent at paragraph 5 of his Statement of Claim. That:
“The Defendant after thorough cum lengthy discussion on phone with the Plaintiff intimated the Plaintiff of various brands and prices of passenger tricycle available in China which photos he sent to the Plaintiff through his e-mail on the 1st day of July, 2011. The tricycles were sent to the Plaintiff
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after the nature, description, price and effect of the transaction had been fully explained to the Plaintiff”.
Learned senior counsel to the Appellant also referred to paragraphs 2 and 3 at page 42 of the Record which is part of the Statement of Defence and also paragraphs 10 to 15 of the deposition of the Appellant. He then asked whether the lower Court decided that the Plaintiff sent e-mail showing photographs of what he wanted to the Defendant, that is, a tri-cycle other than a battery operated electric one. In answer to the question, he quoted the holding by the learned trial Judge at page 181 of the record where he held thus:
“There is evidence before this Court that the Plaintiff and the Defendant never met prior to the business. There is evidence that all the transaction the Plaintiff had with the Defendant was through phone and e-mail. There is no evidence that the Plaintiff sent any e-mail to the Defendant. I do not believe the Plaintiff that he handed over to the Defendant Exhibits A1 and A2 or sent same to him”.
Learned counsel submitted that at page 166 of the records of appeal which is page 2 of the judgment by
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the lower Court it is obvious that Exhibits A1 and A2 are copies of the photographs the Plaintiff allegedly sent to the defendant, but the lower Court found that they were not sent to the defendant and treated the documents as rejected, though admitted during trial without objection. That these documents would have formed the basis for the contractual agreement between the parties.
That it is obvious that Exhibits A1 and A2 were not sent to the Appellant by the Respondent. Therefore, the Respondent did not make any specification that he wanted something other than an electro operated tricycles. That it is invidious for the Respondent to turn round to start laying claim to any other type of tricycles other than what he got. That an agreement is entered into when one party accepts an offer made by the other. Cited: Council of Yabatech v. Nigerlec Contractor Ltd (1989) 1 NWLR (Pt. 95) 99 at 107; Onamade v. A.C.B. Ltd (1997) 1 NWLR (Pt. 480) 123 at 141 – 142. That a man should not resile from what he agreed upon.
That the agreement in the instant case was certain and final that the Respondent desired and requested for a cheaper type of tricycle as
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pleaded and given in evidence by the Appellant. The Respondent never sent Exhibits A1 and A2 to the Appellant as held by the lower Court. That after seeing the pictures sent to his e-mail by the Appellant, the Respondent accepted to buy 42 pieces of electro tricycles at the rate of $1,200 or N179,200 each totaling N8,870,569.00. The Plaintiff paid for the goods which were loaded and shipped to him in Nigeria from China. That on receipt of the tricycles the Plaintiff complained that there were no operational manuals which were later sent to him. That if the Plaintiff had not accepted the goods, he would not have demanded and accepted the manuals, he would have rejected everything ab initio.
That the basis of the Plaintiff’s case failed. He has no reason to sue the Appellant and should not therefore succeed in his claim. That Plaintiff never specified to the Defendant any brand of tricycles than the one he got. The lower Court did not believe the Plaintiff that he handed over Exhibits A1 and A2 to the Defendant at China, learned senior counsel to the Appellant urged the Court to uphold that decision by the lower Court and resolve this issue in favour
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of the Appellant.
In answer to this issue, learned counsel to the Respondent quoted paragraphs 4 and 5 of the Respondent’s Statement of Claim at pages 4 and 5 of the Record which he submits are in pari materia with paragraphs 4 and 5 of the respondent’s deposition on oath. Learned counsel also quoted paragraphs 4 and 5 of the Defendant’s Statement of Defence at pages 41 and 42 of the Records. He also quoted verbatim the testimony by the Defendant during cross-examination at pages 158 to 159 of the Records. Learned counsel to the Respondent submitted that in evaluating the above evidence the learned trial Judge held, inter alia that:
“From the facts of this case before me, the Plaintiff did not accept the type of motor tricycle sent to him by the Defendant. He rejected same upon seeing the contents of the container. He was persuaded by the Defendant and Chima Anyaoha, to offload same and pack them which he did. He was persuaded by them to assemble same and test run it which he did and still rejected the goods thereafter. I do not believe the evidence of the Defendant in this regard that he was arrested when he went to collect
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the balance of his money from the Plaintiff. The testimony of the Defendant and his deposition in chief in this regard are at variance” (page 181 of the Records).
Learned counsel submitted that the law is trite that a trial Court must consider relevant exhibits tendered before it along with oral evidence to arrive at a just decision. Cited: Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 567. That in the instant appeal, the learned trial Judge, after considering Exhibits A1 and A2 along with the pleadings of the parties and oral evidence of the Appellant regarding the electro tricycles, reached a conclusion that the type of tricycle reached by the parties cannot be determined through Exhibits A1 and A2. That where parties never met and goods were sold on description, and upon delivery of the goods and they failed to conform to description, then the buyer is automatically entitled to repudiate the contract and demand a refund. Cited: F.B.N. Plc v. Ozokwere (2006) 4 NWLR (Pt. 970) 422.
Learned counsel urged this Court to resolve this issue in favour of the Respondent and hold that the lower Court was right when it held that it does not believe
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that the Respondent handed to the Appellant Exhibits A1 and A2 or sent same to him and to also hold that the said lower Court did not accept the evidence of the Appellant that the parties agreed on electro-tricycle since during cross-examination of the appellant he admitted that the respondent did not tell him the type of tricycle to buy.
Finding on Issue One:
Issue 1 as formulated by the Appellant is:
Did the Respondent send Exhibits which are A1 and A2 photographs of the tricycles to the Appellant to determine what he wanted, which formed the basis of his claim, and was the lower Court right to have entered judgment for the Respondent despite the fact that he stated that:
“There was no evidence that the Plaintiff sent any E-mail to the Defendant. I do not believe that he handed over to the Defendant Exhibits A1 and A2 or sent same to him”
This issue is formulated from ground 1 of the Appellant’s Notice of Appeal which shorn of its particulars, reads as follows:
“Ground 1:
The learned trial Judge erred in law by accepting that the Plaintiff/Respondent showed the Defendant/Appellant the model of
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tricycle he requested to be imported for him despite the fact that at page 17 of the Judgment the trial Court decided that: “There was no evidence that the Plaintiff sent any e-mail to the defendant. I do not believe the Plaintiff that he handed over to the Defendant Exhibits A1 and A2 or sent same to him”.
I have carefully considered the submission by learned counsel to the parties on this issue. At the outset I have to correct a misconception by learned senior counsel to the Appellant in paragraph 2.09 of his submission at page 5 where he stated thus:
“At page 166 of the record which is page 2 of the judgment at the last line of paragraph 4 thereof it will be found that Exhibits A1 and A2 are copies of the photographs the Plaintiff/Respondent allegedly sent to the Defendant/Appellant.”
The impression created by the Appellant is that at page 2 of his judgment the learned trial Judge accepted that Exhibits A1 and A2 were copies of photographs the Respondent sent to the Appellant by e-mail to China. However, a closer look at page 2 of his judgment (page 166 of the Records), the learned trial Judge was stating the brief
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facts of the Plaintiff’s case as pleaded by him and evidence adduced thereto. He was not making a pronouncement in respect to Exhibits A1 and A2. The said trial Judge opened his sentence at the first paragraph by stating thus:
“Briefly, the facts of this case as given evidence (sic) by the PW1, the Plaintiff was that sometimes in July 2011, he opened a negotiation with the defendant on the possibility of importing petrol powered motor tricycle into Nigeria from China. The Plaintiff further handed over to the defendant the photographs of the type of motor tricycle (Keke Nappep) he would want the defendant to negotiate for him in China”.
It is clear therefore, that the learned trial Judge was simply narrating the brief facts of the plaintiff’s case by way of introduction at page 2 of his judgment and not expressing his finding. This clarification is necessary to correct the impression created by the Appellant that in one breath the learned trial Judge held that the Respondent sent the photographs of the type of tricycles he would like the Appellant to purchase for him at China (Exhibit A1 and A2) and in another breath he said
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the Respondent did not send the said Exhibits ‘A1 and A2’ to the Appellant at China.
Upon considering the submission by learned counsel on this issue. The crux of the matter before the trial Court is whether the parties agreed on the type of tricycle to be supplied to the Respondent by the Appellant. The Respondent pleaded at paragraphs 4 and 5 of his statement of claim as follows:
4. Following the Plaintiff’s proposal, the Defendant opted to make necessary contact with various companies in China that are into the production of petrol powered motor tricycle. The Plaintiff then handed over to the Defendant photographs of the type of motor tricycle (Keke Napep) he would want the Defendant negotiate for him in China. During the trial, the Plaintiff shall found and rely on similar photographs the reminder of the copies given to the Defend.
5. On 7th July, 2011 the Defendant through his e-mail box mendupanat@yahoo.com sent to the Plaintiff via the Plaintiff’s e-mail box okparaeke@yahoo.com some picture samples of the motor-tricycle which he saw in China and the Plaintiff honestly believing that the said motor-tricycle
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are petrol powered, contracted with the Defendant for the purchase of the motor-tricycle (popularly called Keke Napep) the type in use in Nigeria for commercial purposes. The Plaintiff shall at the trial plead and rely on the computer printout of the samples as sent to him via e-mail by the Defendant”. (Pages 4 to 5 of the Records).
The Appellant as Defendant traverse these pleading by the Respondent at paragraphs 4 and 5 of his statement of Defence thus:
4. The Defendant denies paragraph 4 of the Statement of Claim and in joining issues therefore the Defendant states that at no material time did the Plaintiff hand over any photographs of the type of tricycles (Keke Napep) to be negotiating for the Plaintiff in China that purported photograph of tricycles exhibited by the Plaintiff is mischievous and a mere figment of Plaintiff’s fertile imagination. The Defendant prior to the business transaction has not set his eyes on the Plaintiff. All the communication was through e-mail and phone calls”.
5. The Defendant denies paragraph 5 in joining issues with the Plaintiff in paragraph 5 of the statement of claim avers in reply that
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the Defendant did not send any message through his e-mail box mendupanat@yahoo.com to the Plaintiff on the 7th day of July, 2011.
The Defendant after thorough cum lengthy discussion on phone with the Plaintiff intimated the Plaintiff of various brands and prices of passenger tri-cycles available in China, which photos he sent to the Plaintiff through his e-mail on the 1st day of July, 2011. The tricycles were sent to the Plaintiff after the nature, description, price and effect of the transaction had been fully explained to the Plaintiff” (Pages 41 and 42 of the Records).
However, during cross-examination of the Appellant by learned counsel to the Respondent on 21/01/2014 at page 158 of the record of appeal the Appellant changed gear from his pleadings and written deposition where he averred that he agreed with the Respondent to supply to him only electro tricycle when he testified thus:
“Q: The Plaintiff transferred to you the sum total of 42,000 U.S Dollars?
A: Yes.
Q: That money is meant for 42 pieces of Keke Napep, the type that is used in Nigeria?
A: He gave me money to buy Keke for him but he did not tell me the
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particular one he wants”.
The law is trite that a trial Court must consider and evaluate the relevant documents tendered and admitted in evidence before it vis-a-vis the oral evidence adduced in support thereof in order to arrive at a just decision. In Chief Adeoye Adio Fagunwa & Anor v. Chief Nathaniel Adibi & Ors (2004) LPELR – 1229 (SC) the Supreme Court held per Tobi, JSC, as follows:
“A trial Judge must consider relevant exhibits tendered before him along with oral evidence. He cannot take only the oral evidence and throw away documentary evidence which is primary evidence under Section 94(1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990. While I conceded to the learned trial Judge that the law does not foist on him the duty to consider all the exhibits tendered before him, he must consider the relevant exhibits.”
It is my finding that after considering Exhibits A1 and A2 along with the pleadings of the parties and the oral testimony by the Appellant regarding the tricycles, the learned trial Judge reached the inevitable conclusion that the type of tricycles reached by the parties
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cannot be determined through Exhibits A1 and A2. Thus he held at page 181 of the Record as follows:
“The oral evidence of the Defendant under cross-examination was that he did not agree with the Plaintiff regarding the type of motor tricycle to be supplied while in his defence and written deposition, he testified that he agreed with the Plaintiff to supply him electro tricycle.
I do not believe the evidence of the Defendant in this regard. Exhibits A1 and A2 were photographs the Plaintiff claimed he sent to the Defendant intimating him of the type of tricycle to be supplied to the Plaintiff.
There is evidence before this Court that the Plaintiff and the Defendant never met prior to the business. There is evidence that all the transaction the Plaintiff had with the Defendant was through phone and e-mail. There is no evidence that the Plaintiff sent any e-mail to the Defendant. I do not believe the Plaintiff that he handed over to the Defendant Exhibits A1 and A2 or sent same to him.
From the facts of this case before me, the Plaintiff did not accept the type of motor tricycle sent to him by the Defendant. He rejected same upon seeing
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the contents of the container. He was persuaded by the Defendant and Chioma Anyaoha to offload same and pack them which he did. He was persuaded by them to assemble same and test ran it which he did and still rejected the goods thereafter. I do not believe the evidence of the Defendant in this regard that he was arrested when he went to collect the balance of his money from the Plaintiff. The testimony of the Defendant and his deposition in chief in this regard are at variance. Although a valid contract exists between the parties, however, I am of the view that the Defendant is in breach of that contract as he failed to comply with an implied condition of the contract. It is my view that the Plaintiff under the circumstance is entitled to recover the money he expended in the failed contract”.
It is trite that where the parties never met and goods were sold on description and upon delivery of the goods, the goods failed to conform to the description, the buyer is automatically entitled to repudiate the contract and demand a refund. In Uchenna Cyprian v. Emmanuel Uzo (2015) LPELR-40764 (CA) this Court per Abiru, JCA, held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“…in sale of good transaction, where goods are sold and upon delivery they are discovered to be defective, the buyer is automatically entitled to repudiate the contract and demand a refund – First Bank of Nigeria Plc. v. Ozokwere (2006) 4 NWLR (Pt. 970) 422”.
See also Stag Engineering Company Ltd v. Sabalco Nigeria Ltd & Anor (2008) LPELR – 8485 (CA).
Upon considering the holding by the learned trial Judge above and the authorities cited and relied upon, it is my holding that the said learned trial Judge was right when he held that he does not believe the Respondent that he handed over to the Appellant Exhibits A1 and A2 or sent same to the said Appellant. The learned trial Judge was also right when he held that he did not accept the evidence of the Appellant that the parties agreed on electro tricycle since the Appellant during cross-examination admitted that the Respondent did not tell him the type of tricycle to buy. This issue is resolved in favour of the Respondent.
The second issue formulated by learned senior counsel to the Appellant is:
Did the lower Court err in law by rejecting in evidence on
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the strength of Section 84 (2) of the Evidence Act Exhibits B, C and I as computer printout despite the fact that they are admissible, none of the parties having given evidence of use of computer to obtain the e-mails?
While arguing this issue, learned counsel to the Appellant referred the Court to page 179 of the Record where the learned trial Judge held that:
“None of the conditions stipulated in Section 84(2) of the Evidence Act was complied with before Exhibits ‘B’, ‘C’ and ‘I’ were tendered in evidence. None of the parties laid foundation or called any evidence regarding the use of the computer prior to the printing of Exhibits ‘B’, ‘C’ and ‘I’. It is my humble view therefore that Exhibits ‘B’, ‘C’, and ‘I’ are inadmissible evidence and I shall treat them as such in this judgment”.
Learned senior counsel to the Appellant submitted that this holding by the lower Court is not the position of the law. He quoted Section 84 (1) and (2) of the Evidence Act and submitted that he was at a loss at how the use of computer ever
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arose for the lower Court to make reference to Section 84(2) of the Evidence Act for that Court to reject documents produced by e-mail. That e-mail documents do not necessarily have to be printed from a computer. That e-mails come through phones, ipad etc, and are printed by an electronic printer without going through a computer. That no evidence of a computer arose to have directed the mind of the lower Court to Section 84(2) of the Evidence Act.
That Section 84 (2) of the Evidence Act is completely inapplicable and should not be the basis for the lower Court to reject the documents which were previously admitted. That none of the witnesses testified that the e-mail were procured from a computer in such a way that Section 84 (2) will apply. That a Court that held that the Plaintiff never sent any e-mail to the Defendant cannot go on to reject the admissibility of e-mails sent by the Defendant on the wrong reason that Section 84(2) made them inadmissible. That that is “being one sided”. Learned counsel urged the Court to hold that Section 84(2) of the Evidence Act is irrelevant and the documents do not fall within the category of evidence made
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inadmissible in law. Cited Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158.
In his submission while arguing this issue, learned counsel to the Respondent after quoting Section 84 (1) and (2) of the Evidence Act, submitted that by the provisions of the said Section 84 (1) and (2) (supra) the learned trial Judge was right by referring to Exhibit ‘B’, ‘C’ and ‘I’ as computer generated documents. Learned counsel quoted the definition of computer in Section 258 of the Evidence Act. That according to The Concise Oxford Dictionary (10th ed.) and definitions of ‘e-mail’ and ‘internet’ by the said Concise Oxford Dictionary (supra), Exhibits B, C and I are computer printout of emails. That for the said documents to be admitted in evidence and the Court to act on them, they must comply with the provisions of Section 84(2) of the Evidence Act. Cited Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 577 – 578. That the learned trial Judge was prompted to make his pronouncements by the statutory and judicial authorities cited above.
That contrary to the submission by learned counsel to the
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Appellant, the learned trial Judge did not rely on Exhibits B, C and I in reaching his decision. Learned counsel quoted the holding by the lower Court in its judgment at page 178 of the record of appeal. That a Court is expected to admit and act on only evidence that is admissible in law. Where inadmissible evidence is admitted without objection, the trial Court has a duty to reject and exclude such evidence during evaluation of evidence and shall not act on such inadmissible evidence. Cited: Eghobamien v. F.M.B.N (2002) 17 NWLR (Pt. 797) 488 at 500 – 501; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671 and Oladipo v. Moba L.G.A. (2010) 5 NWLR (Pt. 1186) 117 at 175. Learned counsel urged the Court to resolve this issue in favour of the Respondent.
Finding on Issue Two:
Upon considering the submission by learned counsel to the parties on this issue, I have carefully read the provisions of Section 84 (1) and (2). I also read Section 258 of the Evidence Act which defines computer to mean:
“…any device for storing information and processing information and any reference to information being derived from other information is a
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reference to its being derived from it by calculation, comparison or any other process.”
The Concise Oxford Dictionary (10th ed.) defined computer thus:
“An electronic device which is capable of receiving information (data) and performing a sequence of logical operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals”.
The said Concise Oxford Dictionary (supra) defined email as follows:
“The system of sending message by electronic means from one computer user to one or more recipients via a network.”
It also defined internet as follows:
“An international information network linking computers, accessible to the public via modem links ORIGIN C20: from inter -+ network.”
From the above definitions of computer, email and internet, it is clear that email can be sent or received through telephone, laptop, ipad, desktop etc. Therefore, in applying the above definitions to this issue, it is obvious that Exhibits B, C and I are computer printout of emails. Therefore, for them to be admissible in
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evidence and for a Court to act on them they must comply with Section 84 (2) of the Evidence Act, 2011. Even where the Court admitted such documents in evidence during trial without objection by learned counsel, it can expunge or ignore them while reviewing the facts and evidence in its judgment. The learned trial Judge was right therefore in his judgment at page 197 of the Record when he held, inter alia, that:
“Although Exhibits B, C and I were received in evidence without any objection, however, but I do not think that Exhibits B, C, and I are admissible under the law by virtue of Section 84 (2) of the Evidence Act 2011. None of the conditions stipulated in Section 84 (2) of the Evidence Act was complied with before Exhibits B, C and I were tendered in evidence.
None of the parties laid any foundation or called any evidence regarding the use of the computer prior to the printing of Exhibits B, C and I.
It is my humble view therefore that Exhibits B, C, and I are inadmissible evidence and I shall treat them as such in this judgment.”
The Supreme Court approved such approach of expunging evidence wrongly admitted during trial
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at the stage of writing judgment in Dr. Imoro Kubor & Anor. v. Hon. Seriake Henry Dickson & Ors. (2012) LPELR – 9817 (SC) when it held as follows:
“On the sub issue as to whether the Court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel, it is settled law that the Courts can do that and has been doing that over the years. See NIPC Ltd. v. Thompson Organization Ltd (1969) 1 NMLR 99 at 104 where Lewis JSC, stated the law as follows:
“It is of course the duty of counsel to object to admissible evidence and the duty of the trial Court any way to refuse to admit inadmissible evidence, but if not withstanding this evidence is still through oversight or otherwise admitted, then it is the duty of the Court to, when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.” Per Onnoghen, JSC, (as he then was).
It is my finding also that the learned trial Judge did not rely on the said Exhibits B, C and I in his judgment. Rather, from the evidence adduced by the parties during trial he held that it was petrol – powered
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tri-cycle used in Nigeria that the parties agreed upon as reflected at page 178 of the Records. In the instant suit, it is my finding that the learned trial Judge did not guess as to the type of computer the parties used in sending and receiving the emails whether it was through the laptops, desktops, smart phone, ipad, smart watch etc. Also the parties in their pleadings and evidence adduced in support therefore did not satisfy the conditions provided by Section 84 (1) and (2) of the Evidence Act. The learned trial Judge was therefore right in rejecting the said Exhibits B, C and I in his judgment and I so hold. I resolve this issue in favour of the Respondent.
Issue 3 formulated by the Appellant is:
Was the lower Court right to have based his judgment on a purported agreement reached and signed by the parties at the Police Station under duress and rejecting the testimony of the Appellant with respect to what transpired at the Police Station and packing of the electric operated tricycle?
While arguing this issue, learned counsel to the Appellant wondered why the lower Court should treat Exhibit ‘E’ as agreement which the parties
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entered into at a Police Station. That the mere fact that a document was signed by parties in a Police Station should put the lower Court on notice that it was not a normal situation. Learned counsel quoted part of the cross-examination of the Appellant at pages 161 to 162 of the record of appeal where his client denied signing exhibit ‘E’. That the Appellant said he paid N1,600,000.00 to the Respondent at the Police Station because my passport was about to expire and it was after that payment that I was released on bail.
That when asked:
“Q: The N1,600,000.00 was paid into the Plaintiff’s account and not to the Police account”.
A: Chiora did not tell me where he paid the money”.
Q: That money was not produced at a Police Station before you were released?
A: I was unconscious. I did not see whether he brought the money cash or he paid it into the account”.
Q: Immediately you were released, you traveled back to China?
A: Yes I left the next day because my passport was about to expire”.
Learned counsel to the Appellant wondered how a Court can treat such an agreement as a
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proper contract binding on parties as the lower Court did at page 180 of the Records when it held thus:
“I am minded to believe that Exhibit ‘E’ was indeed an agreement made by the Plaintiff and the Defendant regarding their settlement of the money expended on the Contract in Exhibit ‘H’ the Defendant agreed paying the sum of N1,600,000 to the Plaintiff as partly payment for settlement of the business”.
That a man under pressure to return to China so that his passport will not expire, or who was detained, harassed and tortured by the Police at the behest of the Plaintiff cannot be said to have entered into a valid contract or agreement in a Police Station. That agreement entered into under undue influence or duress are invalid and illegal agreement or contract and should be set aside. That Exhibit ‘E’ and such documents related to and made at Police State should not form part of a valid contract or agreement. Cited the authority of C.C.C Thrift & Credit Society v. Ekpo (2001) 17 NWLR (Pt. 743) 64 at 675 where the Court defined duress.
Learned counsel urged this Court to set aside the Agreement
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at Exhibit ‘E’ having been entered into under duress, moreso, that the Appellant was also arrested on the day of his father’s funeral thus depriving him the opportunity of paying his last respect to his beloved father. He urged the Court to resolve this issue in favour of the Appellant.
While arguing this issue, learned counsel to the Respondent submitted that his client averred at paragraph 11 (d) of his pleading that it was the Defendant, on his own volition who opted to be paying the amount he owed the Plaintiff instalmentally until the entire sum of N10,073,500, is fully paid. That while traversing this averment at paragraph 11(d) of his statement of Defence, the Appellant pleaded thus:
“The Defendant in answer states that in exception of the Statement the Defendant made at State C.I.D Awka where he was tortured and maltreated when he made the Statement and the Statement made voluntarily at Zonal C.I.D Zone 9 Umuahia. The Defendant did not sign any undertaking as per the payment of the sum of Ten Million, Seventy Three Thousand, Five Hundred Naira (N10,073,500.00) to anybody including the Plaintiff”.
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That from this averment by the Appellant he denied the Statement he made at the State C.I.D Awka but admitted that he voluntarily made the Statement he made to the Police at Zone 9, Umuahia on 28th May, 2012. The Appellant not only relied on that Statement but tendered it during trial which learned counsel to the Respondent did not object to and the lower Court admitted same in evidence and marked it as Exhibit ‘H’. Learned counsel quoted pages 3 of Exhibit ‘H’ at page 56 of the Records and submitted that by the said Exhibit ‘H’ it is not in doubt that the Appellant freely accepted the Respondent’s rejection of the electro-powered tricycle sent to him by the Appellant. That the Appellant voluntarily entered into an agreement (Exhibit ‘E’) to repay all the monies the respondent paid to him as payment for the rejected electro tricycle. That the Appellant by Exhibit H admitted his indebtedness to the Respondent and it is trite law that facts admitted needs no further proof. Cited: Provost, Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476 at 500 and 509.
That to buttress the genuiness of the
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Respondent’s submission, even the Appellant in his counter-claim did not claim a refund of the N1,600,000.00 which he is now arguing he was forced to pay. That where a person of full age and discretion signs a document in full knowledge of the nature and not necessarily knowledge of the contents of the document, it will not avail him to complain that he did not know the contents of the said document or that it is not his deed. Cited the apex Court’s decision in Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt. 1053) 37 at 74 – 75 per Ogbuagu, JSC, that the admission in Exhibit ‘H’ by the Appellant that he had an understanding with the Respondent on how to pay the debt in installments further strengthen the case of the Respondent and it does not lie in the mouth of the Appellant to approbate and reprobate at the same time. Cited: Koiki & Ors v. B.V. Magnusson (1999) 8 NWLR (pt. 615) 492. Learned counsel urged the Court to resolve this issue in favour of the Respondent.
Finding on Issue Three 3:
I have considered the submission by the parties on this issue and my answer is in the positive i.e. the learned trial
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Judge was right to base his judgment on the agreement reached and signed by the parties at the Police Station at Zonal Headquarters of Police Zone 9, Umuahia on 28th May, 2012 at pages 55 and 56 of the Records. At paragraph 11(d) of his pleadings the Appellant averred that:
“…he made the statement and the statement made voluntarily at Zonal C.I.D. Zone 9, Umuahia.”
The Appellant as DW1 in his testimony went further and tendered the said statement in evidence during trial and same was admitted in evidence by the learned trial Judge and marked as Exhibit ‘H’ as contained at page 157 of the record of appeal. A careful perusal of Exhibit ‘H’ revealed that the Defendant admitted that:
“So I send Big Engine to him, there was a day he called me to his house and I came on my way from Lagos. On my arrival to his house, he arrested me with Policemen from Okpoko Police Station from there to State C.I.D Awka, we put up agreement within ourselves on how to settle each other which I paid him One Million, Six Hundred Thousand Naira (N1.600,000.00) since then he is with my goods and money. Also I did not hear from
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him again. This is a business we did last year August” (page 56 of the Records).
Upon considering this voluntary statement made by the Appellant at the Zone 9 Police Headquarters, Umuahia, I have no doubt in my mind that the Appellant freely and voluntarily accepted the respondent’s rejection of the electric powered tricycles sent to him by the Appellant. The Appellant voluntarily entered into an agreement to repay all the money paid to him by the Respondent in respect to the rejected electro tricycles. By Exhibit ‘H’ the Appellant admitted his indebtedness to the Respondent. The law is trite that where a person of full age and discretion signs a document with full knowledge of the nature and not necessarily knowledge of the contents of the documents it will not avail him to complain that he did not know the contents of the said document. The Supreme Court held so in Ezekiel Okoli v. Morecab Finance Nigeria Limited (2007) LPELR – 2463 (SC) per Ogbuagu, JSC, that:
“…where a person of full age and discretion, signs a document in the full knowledge of the nature and not necessarily knowledge of the contents of
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the document, it will not avail him to complain that he did not know the contents of the said document. See the case of Egbase v. Oriareghan (1985) 10 SC 80 at 92; (1985) 2 NWLR (Pt. 10) 884: (1986) NLTR 156…”
Likewise, once a person acknowledge indebtedness to the other party, he is estopped from denying same and the burden as to the reasons for non-payment of the debt is on that person. Therefore, the Appellant having admitted through Exhibit ‘H’ that he signed and voluntarily entered into Exhibit ‘E’ with the Respondent is estopped from changing gear midway since he did not discharge the burden as to the reason for non-payment placed on him by the law. See: Ferdinand George v. United Bank for Africa Ltd (1972) LPELR – 1321 (SC) per Fatayi-Williams, JSC.
It is clear from the contents of Exhibit ‘H’ that the Appellant stated therein a story relating to his earlier agreement with the Respondent on the instalmental payment of his indebtedness to the Respondent and how he made part payment of N1,600,000.00. This admission by the Appellant in Exhibit H that he had an agreement with the Respondent
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on how to repay the amount he owed installmentally further strengthened the case of the Respondent. Therefore, the Appellant cannot approbate and reprobate. In K. Koiki & Ors v. B.V. Magnussion (1999) LPELR – 1697 (SC) the apex Court held, per Onu, JSC, that:
“The general rule is that where parties have embodied the terms of their agreement in a written document such as Exhibit P.29 extrinsic evidence is not admitted to add, vary or subtract from or contradict the terms of the written instrument. See Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24”.
Another act by the Appellant that strengthened the Respondent’s case is the failure or neglect by the Appellant to claim the refund of the part payment he voluntarily made (which he is now trying to resile from) in his counter-claim at page 48 of the Records. One would have expected that he ought to have demanded for the refund if indeed he is serious that he was forced to pay the sum of N1,600,000.00 under duress by the Police at the instigation of the Respondent as part payment. It is my finding on this issue that the learned trial Judge was right to base his judgment on the
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statement the Appellant admitted he voluntarily made at the Police Zonal Headquarters, Zone 9, Umuahia which was not made under duress. I also resolve this issue in favour of the Respondent.
Issue 4 canvassed by the Appellant is:
Was the lower Court right by holding that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant, and that there was no proof that the Appellant asked the Respondent to pack the goods until he comes to Nigeria from China?
Learned counsel to the Appellant submitted while arguing this issue that the learned trial Judge was wrong when he held at page 180 of the Record that:
“From the onset, the Plaintiff never accepted the electro – tricycle sent to him by the Plaintiff.”
That the lower Court was also wrong when it held at page 182 of the Record that:
“There is evidence that upon rejection of the goods by the Plaintiff on its delivery, the Defendant persuaded the Plaintiff to pack the goods until he comes to Nigeria from China”.
Again learned counsel quoted the holding by the lower Court at page 179 of the Records that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“There is no evidence that the Plaintiff sent any E-mail to the Defendant. I do not believe the Plaintiff that he handed over to the Defendant Exhibits A1 and A2 or sent same to him”.
Learned counsel argued that by implication, the Respondent never gave or sent to the Defendant any photograph contrary to the electro operated tricycles he agreed with the Defendant that he will supply. Learned counsel rehashed his submission under issues 1 above. He submitted that the contract between the parties, as pleaded by the Respondent and evidence adduced in support is based on his (Respondent’s) honest belief, not on any form of contract in writing. Another issue re-emphasized by the Appellant is the request for manuals for operating the electro tricycles by the Respondent. That the Respondent also pleaded that he spend N612,500 used by the Appellant to pay the labourers and technicians who assisted in assembling the tricycles at paragraph 16 of his statement of claim. Learned counsel to the Appellant argued that if the Respondent rejected the electro – tricycles, why did he asked for the manuals to be sent to him from China and why did be
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spent N612,600 to assemble the said electro – tricycles?
That it is improper for the learned trial Judge to hold at page 182 of the Records that: “From the onset the Plaintiff never accepted the electro tricycles sent to him by the Defendant”. That a person that rejects a thing cannot want to touch it or even spend extra money on it. That there is no Notice of Rejection. That a notice of rejection must be given to the seller. That there is nothing in writing to show that the Respondent rejected the goods. Learned counsel urged the Court to resolve this issue in favour of the Appellant.
In his submission, learned counsel to the Respondent contended that in paragraphs 8 to 15 of the Respondent’s Statement of Claim and paragraphs 12 to 23 of his written deposition on oath (which he adopted as his evidence in chief on 12/11/13); in paragraphs 7 to 11 of Respondent’s Reply to the Appellant’s Statement of Defence and Defence to Counter Claim and paragraphs 7 to 11 of Respondent’s additional written deposition on oath he pleaded that upon taking delivery of the tricycles sent to him by the Appellant, and upon
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inspection, he discovered that the goods delivered to him by the Appellant did not meet the description he requested and ordered for so he rejected the entire tricycles and all efforts made by the Appellant to persuade him to accept the electro-powered tricycles failed, even after the tricycles were assembled he still rejected them. That that is why the Appellant started refunding the Respondent with the part payment of N1,600,000.00 leaving a balance of N8,473,500.00.
That from the facts of this case, there is no doubt that the Respondent did not see or inspect the tricycles before paying for it. That no doubt also that the tricycles were sold and purchased based on description. That the Appellant admitted these facts during cross-examination when he said: “He gave me money to buy Keke Napep for him but he did not tell me the particular one he wants”. That Keke Napep is a Nigerian word for petrol powered tricycles now in use in this country. That it follows therefore that the “honest belief” of the Respondent (heavily relied upon by the Appellant is his brief) that the tricycles he did not see nor inspected before paying for must
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conform with the description of what he wanted to buy from the Appellant. Learned counsel submitted that it is trite law that where goods are sold by description and upon delivery, the goods failed to conform to that description, then the buyer is automatically entitled to repudiate the contract and demand a refund. Cited: F.B.N Plc v. Ozokwere (2006) 4 NWLR (Pt. 970) 422 at 434; and F.B.N. Plc v. Ozokwere (2014) 3 NWLR (Pt. 1395) 439.
On Appellant’s submission that Notice of Rejection ought to have been given by the Respondent, learned counsel submitted in reply that Notice of Rejection may be oral or in writing. That the Respondent duly gave the Appellant an oral notice of rejection as pleaded in paragraph 10 of the Statement of Claim that:
“…the Plaintiff met with the Defendant and immediately registered his rejection of the model of tricycles sent to him…”
Learned counsel urged the Court to resolve this issue in favour of the Respondent and hold that the learned trial Judge was right when he held that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant.
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Finding on Issue Four:
I have carefully considered the submission by learned counsel on this issue. Considering my findings in issues 1, and 3 above in favour of the Respondent, the answer to this issue is also in the positive that the lower Court was right by holding that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant. I carefully read and considered the pleadings and depositions by the Respondent at paragraphs 8 to 15 of Statement of Claim (pages 6 to 8 of the Records); paragraphs 12 to 23 of the Respondent’s deposition on oath (pages 12 to 14 of the Records); paragraphs 7 to 11 of the Respondent’s Reply to Appellant’s Statement of Defence and Reply to Counter Claim (pages 76 to 80 of the Records) and paragraphs 7 to 11 of the Respondent’s additional written deposition on oath (pages 85 to 88 of the Records) and I am of the firm view that upon taking delivery of the electro-powered tricycles sent to him by the Appellant from China, the Respondent inspected the tricycles and discovered that they are not what he discussed with the Appellant to be shipped to Nigeria. That instead of the popular
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“Keke Napep” a petrol-powered tricycles used in Nigeria, the Appellant supplied electro-powered tricycles not yet in use in Nigeria. Upon sighting them, the Respondent immediately registered his rejection of the model and type of tricycles sent to him. All plea and entreaties by the Defendant to persuade and convince the Plaintiff to accept the consignment, even at a reduced price, proved abortive and the Plaintiff vehemently refused to accept the consignment as it was not what he ordered for. (See paragraph 10 of the Respondent’s Statement of Claim). In such circumstances, the respondent is automatically entitled to repudiate the contract and demand a refund. In First Bank of Nigeria Plc v. Alexander N. Ozokwere (2006) 4 NWLR (Pt. 970) 422 at 434 paragraph H, this Court per Galadima, JCA, (as he then was) held thus:
“In a sale of goods contract, where the goods are sold by description and upon delivery, failed to conform to the description, the buyer is automatically entitled to repudiate the contract and demand a refund. The respondent in circumstance of this case is entitled to a refund when the goods shipped deviated materially
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from what was ordered or purchased”.
There is evidence before the trial Court that after rejecting the electro-powered tricycles by the Respondent one Mr. Chima Anyaora brokered peace between the parties wherein the appellant voluntarily accepted to be repaying to the Respondent the money he invested in the business installmentally. The Appellant made part payment of One Million Six Hundred Thousand Naira (N1,600,000.00) only into the Respondent’s account. It is his failure to refund the entire sum that led the Respondent to file this suit. The Appellant, who is clever by half, assumed (wrongly in my view) that he can resile out of his contractual obligation by resorting to sophistry and technicality which is unfortunate. The milestone of justice may be slow but when put in motion it grinds and grinds finely. The Supreme Court held in Aliu Bello &Ors v. Attorney General of Oyo State (1986) LPELR – 764 (SC) as follows:
“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not resile in forms and formalities not in technicalities, nor is
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the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicalities. Law and all its technical rules ought to be but a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed only serve to render justice grotesque or even lead to outright injustice. The Court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it. I will here cast my lot with my learned brother Eso, JSC, who in the State v. Gwonto (1983) 1 SCNLR 142 at p. 160 postulated that: “The Court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
I resolve this issue in favour of the Respondent.
Issue Five is:
Is it right to conclude that the Appellant is fraudulent by so doing entering judgment against him, and making such orders made in the matter without Respondent pleading particulars of fraud?
Upon considering the submission by
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learned counsel on this issue, it is my finding that this issue is ab initio a fallacy because in the entire judgment by the learned trial Judge, at pages 165 to 183 of the record of appeal, he did not make any finding that the Appellant is fraudulent, neither was judgment entered against the Appellant for fraud. Paragraphs 8 and 9 of the Respondent’s pleadings (pages 6 to 7 of the Records) referred to by learned counsel to the Appellant in his brief did not allege any fraud by the Appellant to warrant pleading particulars of fraud. This ground of appeal which was framed as Additional Ground of Appeal filed on 17th December, 2014 from which this issue is couched is incompetent and it is hereby struck out. Since the ground of appeal is incompetent, the issue canvassed out of it is also incompetent and is also struck out. See the holding by this Court in Ajibola Israel Famurewa v. Olugbenga Onigbogo & 334 Ors. (2010) LPELR – 9142 (CA); Ibanga Sunday Stephen Ibanga & Anor. v. INEC (2011) LPELR 8799 (CA) per Oredola, JCA. This issue is resolved in favour of the Respondent.
In conclusion, it is my judgment that this appeal lacks merit. It
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is hereby dismissed. The judgment by the lower Court in Suit No: 0/171/2012 delivered on 29/09/2014, is hereby affirmed:
The Appellant shall pay to the Respondent the sum of N7,141,500.00 being the outstanding debt arising from the supply of unwanted electronic tricycles.
The Appellant shall also pay to the Respondent the sum of N300,000.00 as damages for breach of contract.
The said sums shall be paid within one year from the date of this judgement, that is by June, 2021.
I also award cost of N100,000.00 in favour of the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned Brother, B.G SANGA, JCA, obliged me, with the draft of the lead judgment just delivered. I agree with his lordship that this appeal being unmeritorious, should be dismissed.
I hereby affirm the judgment of the lower Court. I abide by the order as to costs made by my learned brother Sanga, JCA in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal.
I abide by the
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consequential order made as to costs.
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Appearances:
E.O. IBEGBU, Esq. For Appellant(s)
C.U. AMAHALU, Esq. For Respondent(s)