FEBSON FITNESS CENTRE & ANOR v. CAPPA HOLDINGS LIMITED & ANOR
(2014)LCN/7541(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of November, 2014
CA/A/276/2010
RATIO
CONTRACT: TERMS OF CONTRACT; WHETHER THE COURT MUST APPLY THE TERMS OF THE AGREEMENT OF PARTIES
It is settled that court does not create contract for parties but apply the terms of their agreement, the way it is. When a court is determining the rights, duties and obligations of the parties to the contract, the court must respect the sanctity of the contract and not allow a term on which there was no agreement to be read into the contract – Idufueko vs Pfizer Products Ltd (2014) 12 NWLR (pt 1420) 96 at 100. per. TANI YUSUF HASSAN, J.C.A
PRACTICE AND PROCEDURE: PARTIES TO A SUIT; WHO IS A NECESSARY PARTY TO A SUIT
This Court in Ojo Vs Ogbe (2007) 9 NWLR (pt 1040) 542 CA held that a necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently without his being a party to the suit the court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit (case) per. TANI YUSUF HASSAN, J.C.A
COURT: DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE IN ORDER TO ARRIVE AT A JUST DECISION
It is the duty of the trial Court to evaluate evidence of both parties presented before it in order to arrive at a just decision of the matter. per. TANI YUSUF HASSAN, J.C.A
COURT: PERVERSE DECISION; WHEN IS A DECISION OF THE COURT SAID TO BE PERVERSE
A perverse decision was held by the Supreme Court in the case of Udengwu V. Uzuebu (2003) 13 NWLR (pt 836) 135 at 152 where the Court ignored that facts or evidence, misconceived the thrust of the case presented, or took irrelevant matters into account which substantially formed the basis of its decisions, or went outside the issues canvassed by the parties to the extent of Jeopardizing the merit of the case, or committed various errors that faulted the case beyond redemption. The hallmark is in variably in all this, a miscarriage of Justice and the decision must be set aside on Appeal. The Judgment of the trial Court is perverse. per. TANI YUSUF HASSAN, J.C.A
JUSTICES
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. FEBSON FITNESS CENTRE
2. OBAT OIL & PETROLEUM LIMITED – Appellant(s)
AND
1. CAPPA HOLDINGS LIMITED
2. LIFE FITNESS HEALTH CENTRE LIMITED – Respondent(s)
TANI YUSUF HASSAN, J.C.A (Delivering the Leading Judgment): The Appeal is against the Judgment of the High court of Federal Capital Territory Abuja delivered on the 26th day of April, 2010 in suit No. FCT/HC/CV/1214/2006.
The case as shown from the Record was initially instituted under the undefended list when it was subsequently transferred into the general cause list and after exchange of pleadings, issues were joined between the parties.
The processes were amended by order of court. And the amended writ of summon and statement of claim dated 27/06/2006 were filed on 29/06/2006.
The facts of the case are that the 1st Respondent (as plaintiff at the Lower Court) sometime in the year 2002 was approached by 2nd Respondent represented by one Chief Emmanuel Nwude for supply and installation of some items totally N13,380,000.00k (Thirteen Million, Three Hundred and Eighty Thousand Naira) only to which the 2nd Respondent made initial payment of N2,000,000.00k (Two Million Naira) leaving a balance of N11, 380,000.00k (Eleven Million, Three Hundred and Eighty Thousand Naira) only unpaid.
The trial court determined the matter and judgment given in favour of the 1st Respondent gave rise to this Appeal.
The Appellants amended brief dated 31st day of March, 2014 was filed on the 1st day of April 2014. The Appellants amended Reply brief was dated and filed on 16/4/2014.
In the Appellants amended brief learned counsel for the Appellant Kehinde Ogunwumiju Esq identified four issues as follow:
ISSUE ONE
“Whether or not the suit culminating into this Appeal should be struck out for want of jurisdiction” (Ground 13).
ISSUE TWO
“Whether there was any privity of contract between the Appellants and the Respondents to warrant the liability extended to the Appellants by the Learned Trial Judge?
(Grounds 3, 4, 5 and 9).
ISSUE 3
“Whether the Learned Trial Judge was not in error to have entered Judgment against the Appellants having regard to the pleadings and evidence on record in this case?” (Grounds 1, 2, 7, 8, 10 and 12).
ISSUE 4
“Whether the non-joinder or Chief Emmanuel Nwude as a party to the suit by the 1st Respondent is not fatal having regard to the pleadings and evidence on Record?”
(Grounds 6 and 11).
The 1st Respondent’s brief dated and filed the 3rd day of April 2014 was adopted by its counsel G. K. Abdulsalam as their argument in the Appeal.
The four issues formulated by the Appellants were adopted by the 1st Respondent.
Learned Counsel to the 2nd Respondent S. S. Umoru did not file any brief in opposition to this Appeal. In determining this Appeal, I have also adopted the four issues identified by the Appellant.
The grounds of Appeal shorn their particulars are:
GROUND 1
“The Learned Trial Judge misdirected himself when he held that the Defendants did not deny paragraphs 5 and 6 of the amended statement of claim”.
GROUND 2
“The Learned Trial Judge misdirected himself when he held that no evidence was led by the Defendants to rebuff paragraphs 5 and 6 of the Amended statement of claim”.
GROUND 3
“The Learned trial Judge erred in law to have held to the 2nd and 3rd Defendants (Appellants herein) liable to the Plaintiff”. (1st Respondent herein)
GROUND 4
“The Learned Trial Judge erred in law by extending the liability of the 1st Defendant (2nd Respondent herein) to the Appellant”.
GROUND 5
“The Learned Trial Judge erred in law to have held the Appellants liable to the 1st Respondent in respect of the contract between the 1st and 2nd Respondents”.
GROUND 6
“The Learned Trial Judge erred in law when he held that the Judgment of the High Court of Lagos State, Ikeja does not extend to the equipment in issue”.
GROUND 7
“The Learned Trial Judge erred in law when he held that the Defendants did not deny the fact that they inherited the liability of the 1st Defendant to the plaintiff”.
GROUND 8
“The Learned trial Judge erred in law by holding that the nexus of liability remains unbroken against the 3rd and 4th defendants in this case”.
GROUND 9
“The Learned Trial Judge erred in law to have entered Judgment against the Appellants in this case”.
GROUND 10
“The Learned trial Judge erred in law to have entered Judgment against the non-juristic person”.
GROUND 11
“The Learned Trial Judge erred in law by refusing to dismiss the 1st Respondents suit for non joinder of Chief Emmanuel Nwude”
GROUND 12
“The Judgment of the Trial Judge is against the weight of evidence”.
GROUND 13
“The Learned Trial Judge erred in law thereby occasioning a miscarriage of justice to the Appellants by entering Judgment for the 1st Respondent when the Writ of Summons and statement of claim by which the 1st Respondent initiated this action were null, void and incompetent”.
ISSUE ONE
“Whether or not the suit culminating into this Appeal should be struck out for want of Jurisdiction”.
On this issue the Appellants’ counsel submitted that the originating processes filed on 07/03/2006 are incompetent having not been signed by a legal practitioner known to law. He submitted that the 1st Respondent’s suit was not commenced by due process of law. He referred to the case of Madukolo V. Nkemdilim.
He referred to pages 5, 8, 15 and 17 of the Additional Record of Appeal where the original processes as well as the first amendment done to them were signed by Alade Agbabiaka & Co. He said it is now settled that where process is signed in the business name of the law firm the said process is null, void and of no effect. He referred to the following cases.
1) Okafor V. Nweke (2007) 10 NWLR (pt 103) 521 at 531 – 532 paragraph G – A
2) SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (pt 1252) 317 at 337 – 338 paragraph G – B
3) FBN Plc Vs Maiwada (2013) 5 NWLR (pt 1348) 444 and
4) Allawiye Vs Ogunsanya (2013) 5 NWLR (pt 1348) 570 at 609 paragraph A – F among others.
Appellants’ Counsel Kehinde Ogunwumiju further submitted that the 1st Respondent’s suit as plaintiff before the Trial court is incompetent and liable to be struck out. He said the amended writ and statement of claim in 2008 cannot save the 1st Respondent’s suit. He referred to N. N. B. Plc Vs Denclag Ltd (2005) 4 NWLR (pt 916) 549 at 574 paragraphs D – H among others.
The 1st Respondent in response submitted that the amended statement of claim of the 1st Respondent, dated 3rd November, 2008 granted by the Ruling of the Lower court on 7th November, 2008 has not been appealed against or set aside by any court of competent jurisdiction and it therefore subsists.
Learned counsel for the 1st Respondent G. K. Abdulsalam submitted that by the doctrine of estoppel or Res Judicata the losing party is estopped from relitigating the same subject matter. He referred to Dokubo v. Omoni (1999) 6 NWLR (pt 616) 647 among others.
He submitted further that once a process of court has been validly amended by the leave of court the said process dates back to the original stage at which the process was first filed.
He referred to Nwosu Vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt 135) 688 at 717 and Enigbokan Vs A. L. I. C. O. Nigeria Ltd (1994) 6 NWLR (pt 348) 1 SC among others.
He finally submitted that the 1st respondent’s amended Writ of summons and Amended statement of claim filed on the 3rd November, 2008 having been signed by Alade Agbabilka SAN, a legal practitioner enrolled to practice in Nigeria, is competent.
The principle of Law is that an initiating process whether Writ of Summons, Originating Summons or Notice of Appeal must be valid to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. But where process is not signed by a litigant or his counsel, the process is invalid and the Jurisdiction of Court is ousted – Okarika V. Samuel (2013) 2 SCNJ 491.
The Appellant’s contention is that the amended Writ and statement of claim of the Respondents in 2008 cannot save the 1st Respondent’s process of 7th March, 2006.
However, I disagree with this contention of the Appellants. The originating process filed by the 1st Respondent on 07/03/2006 was signed by Alade Agbabiaka & Co as reflected on page 8 of the Additional Record of Appeal.
The amendment to the Writ and statement of claim in 2008 was signed by Alade Agbabiaka Esq SAN, a legal practitioner, known to law. The purpose is to ensure responsibility and accountability on the part of a legal practitioner who signs the process.
The 1st Respondent having realized the defect in its Writ and statement of claim filed on 07/03/2006 caused an amendment to be made in the year 2008. The effect of that amendment is to correct error in the original process and it takes effect from the date the original process was filed.
An amendment of pleadings takes effect not from the date when amendment is made but from the date of the original pleadings that was amended Enigbokan Vs A. I. Co. (Nig.) Ltd (1994) 6 NWLR (pt 348) 1 SC.
It means therefore once an amendment is allowed the amended pleading is deemed to relate back to the date of the original pleadings which it amend.
The Appellants submission A is a total misconception of the law which will not hold. Issue No. 1 is therefore resolved against the Appellants.
ISSUE TWO
“Whether there was privity of contract between the Appellants and the Respondents to warrant the liability extended to the Appellants by the Learned Trial Judges”.
The Appellants submitted that the evidence of the 1st Respondent’s sole witness (PW1) when he said the contract for sale, supply and installation for which he is claiming the balance of his money is exclusively between the Plaintiff and 1st defendant goes to show that there is no privity of contract between the Appellants and the Respondents for the trial court to enter Judgment against the Appellants.
The Appellants said the 1st Respondent’s assertion that by buying and/or inheriting the assets of the 1st Defendant Life Fitness centre, the 2nd and 3rd Defendant have also acquired there unsettled liabilities including the indebtedness of N11,380,000.00k was not supported by any instrument of transfer or inheritance of the equipments.
The Appellants counsel Kehinde Ogunwumiju submitted that the 2nd Respondent with whom the 1st Respondent transacted business was at all material times known to the 1st Respondent as a distinct personality therefore the contract cannot confer or impose obligations on strangers to it.
He referred to Attorney General of the Federation v. A. I. C Ltd (2000) 10 NWLR (pt 675) 293 at 306 and C. A P. Plc Vs Vital Iho Ltd (2006) 6 NWLR (pt 976) 220 at 264 among others.
He said the property which the Appellants bought and fully paid belong to Chief Emmanuel Nwude and not the 1st Respondent which were forfeited by a subsisting Judgment of a Court of Law.
He referred to exhibits DWIA, DWIB and DWIC in proof of the asset owned by Chief Emmanuel Nwude and to show that none of the assets include the 2nd Respondent. He said oral evidence cannot take precedence over documentary evidence. He referred to Akinbisade v. State (2006) 17 NWLR (pt 1007) 184 at 201 among others.
He finally submitted that joinder of the Appellants as parties to this suit was predicated on the erroneous assumption that the property purchased by the 2nd Appellant include the 2nd Respondent.
He said the property purchased by the 2nd Appellant having been shown to belong chief Emmanuel Nwude which were forfeited by Exhibit DW1 A this issue should be resolved in favour of the Appellants as there was no privity of contract between the appellants and the Respondents.
The 1st Respondent’s Counsel G. K. Abdulsalam raised a preliminary objection to this 2nd issue in response. However the preliminary objection was deemed abandoned, the Appeal having been urged. Any preliminary objection not moved at the hearing of the Appeal is deemed abandoned. These are the basic rules of practices and procedure the Respondent intending to rely upon preliminary objection must observe – Abba v. Shell Petroleum (2013) 4 SCNJ 90 at 92.
It follows therefore since response of the 1st Respondent on this 2nd issue was based on the preliminary objection which is abandoned, the submissions therein are also deemed abandoned.
In determining issue 2, I will consider it together with issue 4 which reads:
“Whether the non-joinder of Chief Emmanuel Nwude as a party to this suit by the 1st Respondent is fatal having regard to the pleadings and evidence on record”.
One basic rule of law of contract is that a person who is not originally a party to a contract, cannot be bound by its terms, nor can he receive any benefit from it. The main exception to this rule is agency – Attorney General of the Federation Vs A. I. C. Ltd (2000) 6 SC (pt 1) 175 at 183.
In paragraph 5 of the amended statement of claim of plaintiff (1st Respondent herein) page 3 of the Record of Appeal reads:
“The Plaintiff avers that on or about 14th October, 2002 the 1st Defendant (2nd Respondent herein) represented by Chief Emmanuel Nwude approached the Plaintiff at its office in Lagos and executed a contract for the sale, supply and installation by the Plaintiff of the following items:
i) 2 Nos. Pluvia 130 (Albatross) steam seaters at a unit cost of N3.5 million = N7,000,000
ii) 2 Nos. Poseidon (sunrise) spas seven seaters at unit cost of N3,000,000.00k each, = N6,000,000.00k.
iii) Installation material/fee- N380,000.00
Total = 13,380,000.00k
Paragraph 6 is to the effect that a sum of N2,000,000.00k initial payment was made by the 1st defendant (2nd Respondent in this Appeals) to the Plaintiff as (1st Respondent herein) as a result of which the items and equipment were installed at the 1st Defendant’s wellness and fitness centre at Russel Shopping Centre plot 2425 Herbert Macaulay Way, Wuse Zone 4 Abuja.
From the above paragraphs 5 and 6 of the plaintiff/1st Respondent statement of claim, the transaction is between it and the 1st Respondent.
The foundation on which a contract is built include the principles of offer and acceptance. The 2nd Respondent in this Appeal offered to purchase certain items from the 1st Respondent which the 1st Respondent accepted and an initial payment of N2,000,000.00k was made leaving a balance of N11,380,000.00k unpaid despite repeated demands. Exhibit PW1 A2 is the invoice reflecting the transaction between the 1st and 2nd Respondents. It is therefore clear that from the claim of the 1st Respondent there is no contract between it and the Appellants.
The contention of the 1st Respondent is that the Appellants having purchased property from Emmanuel Nwude, Life Fitness Centre, Ressel centre Herbert Macaulay way Abuja, its indebted to the 2nd Respondent in the sum of N11,380,000.00 is extended to the Appellants by inheritance. However there is nothing on record to show that Emmanuel Nwude was an agent of the 2nd Respondent when he transacted with the 1st Respondent. It is trite that where an agent acted on the authority of his principal, the principal is liable for his act. But where an agent acted outside his authority, the principal cannot be held liable for his act. Apart from exhibit PW1A2, the invoice evidencing the transaction between 1st and 2nd Respondents there is nothing more placed before the trial court to show the kind of agreement entered between them. In other words exhibit PW1 A2 does not stipulate the terms of agreement between the 1st and 2nd Respondents. Emmanuel Nwude who was said to have represented the 2nd Respondent in the transaction with the 1st Respondent there is nothing on record to show whether he acted on behalf of the 2nd Respondent or in his personal capacity. Also the terms of contract between the 2nd Respondent and the Appellants is not reflected anywhere in the record to show, how the 2nd Respondent’s liability could be extended to the Appellant.
It is settled that court does not create contract for parties but apply the terms of their agreement, the way it is. When a court is determining the rights, duties and obligations of the parties to the contract, the court must respect the sanctity of the contract and not allow a term on which there was no agreement to be read into the contract – Idufueko vs Pfizer Products Ltd (2014) 12 NWLR (pt 1420) 96 at 100.
In the instant case exhibit PW1A2 did not contain the terms of contract between the 1st and 2nd Respondents showing the extension of liability to a stranger to their contract. The 1st Respondent’s claim therefore was untenable. As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to it. In other words only the parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract – Idufueko V. Pfizer (supra)
In the contract between the 1st and 2nd Respondents, the sale of life fitness centre which the 1st Respondent is claiming its indebtedness from the Appellants, the 1st Respondent could not sue the Appellants for the unpaid balance of its indebtedness, as there is no privity of contact between it and the Appellants.
It is on record that the 1st Respondent is aware of the Judgment of the Lagos High court where the properties of Emmanuel Nwude were forfeited to the Federal Government of Nigeria as a result of his involvement in criminal matters. The Judgment is exhibit DW1A where it is included therein the shares in an entire undertaking of Russel Shopping Mall Limited forfeited to the Federal Government of Nigeria.
The Russel Shopping Mall is shown in the exhibit as the property of Emmanuel Nwude and not Life fitness centre. It is the contention of the Appellant that they transacted with Emmanuel Nwude in his personal capacity which fact was not denied by the Respondents. Evidence which is not challenged is deemed admitted and the court can rely on it positively.
Exhibit DW 1B is an agreement between a Foreign company and Emmanuel Odinigwe Nwude, while exhibit DW 1C is the certificate of incorporation of the 2nd Respondent. A careful look at exhibit DW1c there is no where the names of Emmanuel Nwude was shown as either the chairman or any of the Directors of the 2nd Respondent’s company. He was not even shown to be secretary of the company. It goes without saying that he is not a significant figure in the 2nd Respondent’s company which confirms the Appellants assertion that their transaction with him was in his personal capacity.
Having held that there is no privity of contract between the Respondents and the Appellants, issue No. 2 is resolved in favour of the Appellant against the Respondents.
ISSUE 4
“Whether the non-joinder of Chief Emmanuel Nwude as a party to the suit by the 1st respondent is not fatal having regard to the pleadings and evidence on Record?
The submission of the Appellant is that Emmanuel Nwode is a necessary party in resolving this matter. He referred to Onabanjo v. Ewefuga (1993) 4 NWLR (pt 288) 445 at 458
The 1st respondent in response submitted that since Emmanuel Nwude was an agent of the 2nd Respondent, having represented the 2nd Respondent in their transaction, his joinder as a party to the suit is not necessary.
This Court in Ojo Vs Ogbe (2007) 9 NWLR (pt 1040) 542 CA held that a necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently without his being a party to the suit the court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit (case)
The 1st Respondent and its transaction with the 2nd Respondent was represented by Emmanuel Nwude. It is therefore the duty of the 1st Respondent to sue all relevant and interested parties. Emmanuel Nwude is therefore a relevant and necessary party in this case. The Appellants have proved by unchallenged evidence that their transaction with Emmanuel Nwude was in his personal capacity and not as an agent of Life Fitness centre. It means therefore that the 1st Respondent’s claim cannot be enforced without the presence of Emmanuel Nwude. He is a necessary party in resolving this matter.
While it is the duty of a purchaser to enquire, about the property he is purchasing, the Appellants in this matter admitted their negligence to investigate on the property acquired from Emmanuel Nwude. But that notwithstanding Justice of the case must always be seen to be done. The inclusion of shares in an entire undertaking of Russel shopping Mall Limited forfeited to the Federal Government of Nigeria against Emmanuel Nwude in exhibit DW1A is not enough for the 1st Respondent to take the benefit of its liability from the Appellants. Moreso when Life Fitness centre with whom it transacted is not reflected therein. Since there is no contract between the Appellants and the Respondents the Appellants cannot be sued as they are strangers to the contract between the 1st and 2nd Respondents.
This 4th issue is also resolved in favour of the Appellants.
ISSUE THREE
“Whether the Learned Trial Judge was not in error to have entered Judgment against the Appellants having regard to the pleadings and evidence on record in this case”.
On this issue the Appellants Counsel Kehinde Ogunwumiju submitted that the finding of the trial court is perverse. He said paragraph 5 and 6 of the amended statement of claim relied by the trial court have been denied by the Appellants in paragraphs 2 and 4 of 2nd Appellants (3rd Defendant) statement of defence at pages 38 – 39 of the Record.
He said these two paragraphs form paragraphs 3 and 5 of the witness statement on oath of DW1 on pages 73 – 74 of the Record. He also referred to paragraph 2 of the witness statement on oath of DW1 at page 31 of the Record and submitted that the totality of the evidence ought to have been examined by the trial court and not each paragraph in isolation. He referred to Akanni V. Odejide (2004) 9 NWLR (pt 879) 575 at 610 where this Honourable Court held that denial by simple traverse that the Defendant does not admit an allegation is sufficient.
Appellants’ counsel finally submitted that what the 2nd Appellant bought was the Russel centre as well as all its undertakings belonging to Chief Emmanuel Nwude and not the 1st Respondent.
He said that 1st Appellant being a non juristic person the trial court ought not to have entered judgment against it. He referred to Okechukwu & Sons vs Ndah (1976) NMLR 368 at 370 and urged the court to resolve this issue in favour of the Appellants and allow the Appeal.
The 1st Respondent’s counsel G. K. Abdulsalam in response to the 3rd issue submitted that since the defence of the Appellant was that they are not a party to the transaction there is therefore no challenge to paragraphs 5 and 6 of the amended statement of claim and the trial court was right in his finding.
He referred to the English case of Tulk Vs Moxhay (1848) 2PH 741. He said the evidence of DW1 under cross examination cannot be relied upon by the Appellants it is also his submission that Appellant did not appeal against the Ruling of the trial Court on the non juristic personality of the 1s Appellant and is estopped for relitigating the issue on Appeal. He referred to Okwuo Ejiofor Vs Eze Onyekwe and Ors (1972) 12 SC 171, 185 among others.
The trial Court being in the best position to draw inferences from primary facts took a wrong approach on the evidence placed before him.
It is in evidence that the 1st Respondent transacted with the 2nd Respondent through its representative Chief Emmanuel Nwude. The evidence of that transaction is exhibit PW1 A2. By the amended statement of claim of the 1st Respondent (as plaintiff) his claim was against the 2nd Respondent and the 1st and 2nd Appellants (as 1st, 2nd and 3rd defendants).
Paragraph 5 and 6 of the amended statement of claim as reproduced above is the basis of the claim. The Appellants in paragraphs 2 – 4 of the 2nd Appellant’s (3rd Defendant) statement of defence at pages 38 – 39 of the record denied the Plaintiff’s (1st Respondent) averments in paragraph 5 and 6 of the amended statement of claim.
Paragraph 2 of the statement of defence of 3rd defendant 2nd Appellant) reads:
“The 3rd defendant denies paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 11, 12, 13, 14, 15, 16 and 17 of the amended statement of claim and put the strictest proof thereof”.
Paragraph 4 – “in reference to paragraphs 5 – 7 (both inclusive) of the Amended statement of claim, the 3rd Defendant avers that it was not a party to any transaction for sale, supply and installation of any equipment by the Plaintiff. The 3rd Defendant shall maintain at the trial of this suit that both the plaintiff and 1st Defendant are unknown to it as it has never transacted business with them”.
Paragraph 17 of the statement on oath of DW1 reflected at page 75 of the Record Reads:
“I state that the 1st defendant did not at anytime carry on the business of wellness and beauty fitness as Russel Centre belonged to Chief Emmanuel Nwude and not the 1st Defendant”.
If the trial Court has taken the pain to go through the above quotation and the subsequent averments in the deposition of both parties, it would not have arrived at a wrong decision.
It is the duty of the trial Court to evaluate evidence of both parties presented before it in order to arrive at a just decision of the matter. This the trial Court has failed to do, in total disregard to the relevant facts for the determination of the disputes between the parties. The trial Court in evaluating the evidence of the parties only considered the 1st Respondent’s evidence without regard to the evidence of the Appellants, that the Appellants only denied the statement of claim of the 1st Respondent without more. The Supreme Court had this to say in the case Adejumo V. Olawaiye (2014) 12 NWLR (pt 1421) 252 at 260 that mere averments, without proof of the facts pleaded in a statement of claim is not proof of the said facts if the said facts are not admitted in the statement of defence.
This also applies to the defendant in a bid to defend the case against him.
The trial Court at pages 195 – 196 of the Record in its judgment stated therein that the 2nd and 3rd defendants (Appellants herein) did not offer any challenge to the averments of the Plaintiff but made a general transverse.
He referred to the Supreme Court case of Umezie V. Onuoguluchi (1995) 12 SCNJ 120 where it was held that “A general traverse contained in the statement of defence has been recognized as convenient and permissible. It is a traverse and its effect is that it casts on the plaintiff the burden of proving the obligation denied”.
By the above decision of the Supreme Court, the trial Court was guided on the right approach to follow in determining the dispute between the parties. But in disobedience to the doctrine of stare decisis, the trial Court arrived at a perversed decision.
A perverse decision was held by the Supreme Court in the case of Udengwu V. Uzuebu (2003) 13 NWLR (pt 836) 135 at 152 where the Court ignored that facts or evidence, misconceived the thrust of the case presented, or took irrelevant matters into account which substantially formed the basis of its decisions, or went outside the issues canvassed by the parties to the extent of Jeopardizing the merit of the case, or committed various errors that faulted the case beyond redemption. The hallmark is in variably in all this, a miscarriage of Justice and the decision must be set aside on Appeal. The Judgment of the trial Court is perverse.
The 3rd issue is also resolved in favour of the Appellants. Even though the 1st issue was against the Appellants, but the remaining three issues succeeded substantially in favour of the Appellants. The appeal succeeds and it is allowed. The decision of the High Court delivered on 26th day of April, 2010 in suit No. FCT/HC/CV/1214/06 is hereby set aside.
N50,000.00k cost is awarded in favour of the Appellants.
MOORE A. A. ADUMEIN, J.C.A: I had a preview of the Judgment of my learned brother – Tani Yusuf Hassan, JCA, just delivered.
I agree with my learned brother that this appeal has merit and it ought to be allowed.
Although issue 1 was resolved against the appellants, since the remaining decisive issues were resolved in favour of the appellants against the respondents, for the detailed reasons given by my learned brother, I also allow this appeal.
I abide by all the orders made by my learned brother, including the order as to costs.
MOHAMMED MUSTAPHA, J.C.A: I had a preview of the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA, with which I agree.
Fuller reasons for my agreement were advanced by my learned brother in the lead judgment; the appeal has merit. I allow same, and set aside the judgment of the High Court of the Federal Capital Territory in suit FCT/HC/1214/2006.
I also award N50,000.00 cost in favour of the appellants.
Appearances
Kehinde Ogunwumiju
Bamikole Aduloju
Queeneytt Agbe (Miss)
Kola Olawole and Taofiq OlatejuFor Appellant
AND
G. I. Abdulsalam
John Abuta
Sylvester ObunkaFor Respondent
