GILSOD ASSOCIATES LIMITED V. ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA (ALGON)
(2011)LCN/4259(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of January, 2011
CA/A/58/2007
RATIO
CONTRACT: WHAT ARE THE ESSENTIAL REQUIREMENTS OF A VALID CONTRACT IN LAW
The essential requirements of a valid contract in law are – (i) An offer (ii) Unqualified acceptance (iii) Intention to create legal relations (iv) Consideration and (v) Capacity to contract. All these requirements must be present or satisfied before a valid contract comes to existence in law between parties. See: ALFOTURIN LTD. V. A.G. FEDERATION (1996) 9 NWLR (475) 634 at 656-7, NWAIGE V. TRANSPROJECT NIG. LTD. (2000) 8 NWLR (669) 364 at 375, P.T.I. V. NWAMU (2001) 5 NWLR (705) 112. PER MOHAMMED LAWAL GARBA, J.C.A.
STATUTORY PROVISION : PROVISIONS OF SECTIONS 135(1) AND 136 OF THE EVIDENCE ACT AS TO ON WHOM LIES THE BURDEN OF PROOF
Now the learned Counsel are right that by the provisions of Sections 135(1) and 136 of the Evidence Act as well as established judicial authorities, the law is settled that the burden of proof lies on the party who desires the Court to give judgment as to any legal right dependent on the existence of facts which he asserts, to prove those facts because it is he who would fail if no evidence at all were given on either side. The provisions of Sections 135(1) and 136 are as follows:- “135. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist- 136. The burden of proof in a suit or proceeding lies on that person who would foil if no evidence at all were given on either side.” See: OYOVBLARE V. OMAMURHOMU (1999) 10 NWLR (621) 23, NEPA V. INAMETI (2002) 11 NWLR (77) 397, A.D. V. FAYOSE (supra). PER MOHAMMED LAWAL GARBA, J.C.A.
BURDEN OF PROOF: WHAT THE CONCEPT OF BURDEN OF PROOF IN CIVIL CASES OR PROCEEDINGS POSTULATES
The general concept of burden of proof in civil cases or proceedings postulates the obligation placed by law on a plaintiff to present or adduce evidence in proof of the assertion he makes in a case he presents in Court against a defendant. The burden of proof is on the plaintiff who is expected to supply the evidence required to prove the positive assertions of facts on which his claim was made since it is he who would fail if no evidence was given at all in the case. PER MOHAMMED LAWAL GARBA, J.C.A.
BURDEN OF PROOF: POSITION OF THE LAW ON THE CATEGORIES OF THE BURDEN OF PROOF
However by the provisions of Section 137(1) of the Evidence Act, the burden of proving first the existence or otherwise of a fact lies on the party against whom judgment would be given if no evidence were produced on either side. This clearly shows that the burden of proof is not static and is in two different categories of:- (a) the legal burden and (b) the evidential burden. The legal burden is the proof which remains constant throughout a trial. It is the burden of establishing the facts asserted which will support a party’s case and is the burden of proof as a matter of law and pleadings or as the case may be, of offences charged in criminal trials which requires a party to establish a case whether by preponderance of evidence or beyond reasonable doubt. It is also referred to as the persuasive burden. The evidential burden on its part, is the burden of proof in the sense of adducing evidence in proof of a particular fact asserted either in the positive or negative by a party to a case. It is the burden which may shift from one party to the other as a case progress in trial and it rests on a party who would fail if no further evidence as the case may be, was adduced by either side. Thus, the evidential burden rests initially on a party bearing the legal burden, but as the weight of the evidence given at the trial varies, so will the evidential burden shift to the party who would lose if no further evidence was given at that stage. This is the import of the provisions of Section 137(2) and (3) of the Evidence Act which say that:- “137.(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleading have been dealt with. (3) Where there are conflicting presumptions, the case is the same us if there were conflicting evidence.” PER MOHAMMED LAWAL GARBA, J.C.A.
WHETHER WHERE A PRESUMPTION IN FAVOUR OF A PARTY ARISES, THEN THE BURDEN OF REBUTTING IT LIES IN LAW ON THE OTHER PARTY
It may however be noted that under Section 137(1) an exception has been provided for as regards any presumptions that may arise in the pleadings. Where such a presumption in favour of a party arises, then the burden of rebutting it lies in law on the other party; for example where the truth of a party’s assertion lies within the personal knowledge of the other party, then the burden of disproving it is on the latter. See: KALA V. POTISKUM (1998) 3 NWLR (540) 1 at 17, OLUSESI V. OYELUSI (1986) 3 NWLR (31) 634, ARE v. ADISA (1967) NWLR, 304, FUBARA v. OGOLO (2003) 14 NSCQR (II) 638, DANA IMPEX V. ADERETOYE (2006) ALL FWLR (308) 1338. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
GILSOD ASSOCIATES LIMITED Appellant(s)
AND
ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA (ALGON) Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal from the decision of the F.C.T. High Court, (to be called High court hereafter) delivered on the 31/5/06 in suit No. FCT/HC/CV /263/02 was brought vide a notice of appeal dated and filed on the 2/6/06 by the Appellant, who was Plaintiff at the High Court. In the said decision of the High Court, the Appellant’s claims against the Respondent were dismissed for want of credible evidence to prove same after a document tendered by the Appellant at the trial was rejected by the High Court on the ground that it was not pleaded. The Appellant’s case was initially filed under the undefended list procedure of the High Court but eventually transferred to the general cause list where the parties filed pleadings on which evidence was taken at the trial.
The claims of the Appellant which were denied by the Respondent before the High Court were as follows;-
“a. The sum of N5,637,500 (Five Million Six Hundred and Thirty Seven Thousand Five Hundred Naira only) being the total outstanding debt owed the Plaintiff by the Defendants’ failure to meet their contractual obligation of paying the Plaintiff for numbering their newly acquired Prado Jeep Vehicles.
b) Interest charged at the prevailing bank rate as at 25th October 2000 the date on the dishonored cheque up to the date of judgment.
c) 10% interest per annum on the judgment debt from the date of judgment until final liquidation.
d) Cost of this action.”
A witness was called by the Appellant at the trial through whom four documents were admitted in evidence and marked as Exhibits A, B, C, and D. Exhibits A and B are offer and acceptance respectively by Appellant and Respondent for the licensing of the Respondent’s Prado Jeeps, Exhibit c was a letter of demand from the Appellant’s counsel to the Respondent while Exhibit D is a cheque to the Appellant by the Respondent. A way bill tendered through the witness was rejected on the ground that it was pleaded, as stated earlier.
On its part, the Respondent called two (2) witnesses in defence of the case presented by the Appellant.
There are five (5) grounds contained on the notice of appeal from which the learned counsel has distilled three (3) issues which he submitted for consideration by the Court in the appeal in the Appellant’s brief filed on 12/11/08. They are:-
“3.0.2 Whether the rejection of the way bill from the Federal Road Safety Corps tendered in support of the fact that the contract was performed, on the ground that the document was not pleaded, was right and did not occasion injustice to the Appellant. (Ground 1).
3.0.3 Whether the learned trial Judge did not misplace the onus and burden of proof in the case- (Ground IV).
3.0.4 Whether the learned trial Judge did not reach perverse conclusion due to errors made in evaluating the evidence led before him. (Grounds II, III & V).”
For the Respondent, learned Counsel at page 5 of the Respondent’s brief filed on 19/3/10 but deemed on 11/5/10 had raised two (2) issues which he said are germane in the appeal as follows:-
“1. Whether the trial Court was right in rejecting and not relying on the way bill tendered by the Appellant.
2. Whether having regard to the totality of the evidence adduced before the trial Court the Appellant proved his claim against the Respondent on the balance of probabilities.”
The briefs were adopted at the hearing of the appeal.
I have observed that a Notice of preliminary objection dated the 2nd of March 2010 was filed on the 18/3/10 by the learned Counsel for the Respondent. The objection challenges the competence of the appeal on the following grounds:-
“a) That by virtue of Section 242(1) which is subject to Section 241 of the 1999 Constitution of the Federal Republic of Nigeria leave is mandatory where an appeal is on mixed law and facts, the Appellant ought to first seek and obtain leave before filing this appeal but no leave was sought and obtained by the Appellant.
b) That Ground 1 of the Appellants Grounds of Appeal is complaining of the interlocutory ruling of the lower Court delivered on the 16th of March, 2004 for which the Appellant’s 14 days to appeal has since expired and the Appellant did not also obtain leave before filing same.
c) That this appeal is against both interlocutory and final decisions of the High Court of the Federal Capital Territory Abuja.
d) That this appeal is incompetent,”
At the hearing of the appeal on the 4/11/10, the learned Counsel who appeared for the Respondent Mr. K. B. Ottan did not advert to the said objection and so it was not moved before the hearing of the appeal. The law is now settled that where a preliminary objection was not moved before or at the hearing of an appeal, it is deemed abandoned. See:- NSIRIM V. NSIRIM (1990) 5 SC (II) 94, (1990) 3 NWLR (138) 295; SALAMI V. MOHAMMED (2000) 6 SC (II) 37, (2000) 9 NWLR 469; TIZA V. BEGHA (2005) 5 SCNJ 168 AT 178. Since the objection to the competence of the appeal was not moved before or at the hearing of the appeal as required by law, it is deemed abandoned and consequently hereby struck out.
I now go back to the issues raised by the learned counsel in their respective briefs of argument.
It can easily be noticed that the issues formulated by the learned counsel differ only in the manner of the formulation in issues 2 and 3 for the Appellant and issue 2 for the Respondent while the issue 1 for both learned counsel is the same. Issues 2 and 3 are/or can be subsumed in the Respondent’s issue 2 and since submissions have adequately been made on the issues. I intend to use the Appellant’s issues in the determination of the appeal.
The issue 1 is whether the rejection of the way bill on the ground that it was not pleaded was right and did not occasion injustice to the Appellant. Learned Counsel for the Appellant had submitted on the issue that the position of the law is trite that facts and not evidence should be pleaded as contained in order 23 Rule 4(1) of the high court Civil Procedure Rules, 2004 and which he said was noted in many cases such as FIRST BANK OF NIGERIA PLC. V. TSOKWA (2004) 5 NWLR (866) 271 and OJOH V. KAMALU (2005) 18 NWLR (958) 523 at 555-6 where it was held that documents need not be pleaded once the material fact which the evidence is meant to prove is pleaded. He said the Appellant’s witness had testified that the Appellant had performed the contract with the Respondent and to show performance, he said the plate numbers were produced by the Federal Road Safety Corps. That the way bill from the producers was tendered “showing the numbers they produced.” It was his contention that the way bill was a relevant document and ought to have been admitted in evidence even though not pleaded since it was tendered in aid of performance of the contract which was pleaded. According to him, the law is that relevance is the key to admissibility, citing the case of OMEGA BANK NIG. PLC. V. O.B.C. LTD. (2005) 8 NWLR (928) 547 at 582. Further, that the document is relevant evidence or a fact relevant to the facts in issue as to form part of the same transaction which by virtue of Section 7 of the Evidence Act is relevant and the rejection affected the outcome of the final decision which has occasioned a miscarriage of justice to the Appellant. Learned counsel then referred to the portions of the High Court’s judgment at pages 126 and 127 where it was stated that the Appellant did not tender any document to prove performance and that the document tendered was rejected because it was not pleaded. He argued that from the above, it is clear that if the document rejected was admitted in evidence, the High court would not have taken the position that the Appellant had not proved performance of the contract.
The learned counsel for the Respondent had submitted on the issue that a party’s claim is established by credible evidence the basis of which is relevancy and admissibility. He said relevancy is the relationship of the piece of evidence with the issues pertaining to a case or matter, and that admissibility is dependent on the law and Rules of Court. It was further submitted that though a fact or document is relevant, it must pass the test of admissibility before it can be admitted in evidence and that one of the requirements of admissibility of any fact in evidence is that such fact must be pleaded. Any evidence adduced in respect of a fact not pleaded goes to no issue as stated in ONAMADE v. A.C.B. PLC. (1997) 1 NWLR (480) 123 and OTAIN SONS LTD. V. IDRIS (1999) 6 NWLR (606) 330. Learned Counsel also said that pleadings must contain material facts that are positive, precise, distinct and specific to the issues to be relied upon at the trial in proof of the case and that parties are bound by their pleadings.
The case of NWARAYA v. EGBOKA (2005) 10 NWLR (933) 241 at 267 was cited and it was argued that the way bill tendered by the Appellant was rejected by the High Court because no facts about it were pleaded since the law is trite that a document not pleaded is inadmissible in evidence. Reliance was placed for that position, on the case of:- OYEDIRAN v. ALEBIOSU (1992( 6 NWLR (249)550 at 559, AKANDE V. ALAGA (1988) 4 NWLR (86) 1 at 9, NWAFOR ORIZU V. ANYEAGBUNAM (1978) 5 SC. 21 at 31. It was contended that no material facts regarding the issue of way bill was pleaded in the Appellant’s pleadings and that since the Respondent had in paragraph 4 of the Statement of defence (s/defence) averred that the contract was never executed and that it never took delivery which was not reacted to by the Appellant, the Appellant had the duty to lead evidence to prove same because it would lose if no evidence at all was led in the case. The case of A.D. V. FAYOSE (2005) 10 NWLR (934) 151 at 209 was relied on and it was submitted that the Appellant’s contention on the fact of performance of the contract pleaded was enough fact to cover the issue of way bill, is misconceived and incomprehensible.
I would determine this issue before proceeding with a consideration of the submissions by learned Counsel on the other issues.
From the statements of the facts giving rise to the case between the parties to the appeal as narrated in the briefs of argument filed by both Counsels, there is no dispute between them of the existence of a valid contract to procure plate numbers for the Respondent’s Prado Jeeps by the Appellant for an agreed amount of money.
In other words, the parties are agreed that they had entered into a valid contract for the Appellant to procure or supply plate numbers for the Respondent’s Prado Jeeps and for the Respondent to pay the Appellant a stated amount for such plate numbers. There was an offer by the Appellant for the procurement of the plate numbers and an acceptance by the Respondent to pay an amount to the Appellant for the said plate numbers. The essential requirements of a valid contract in law are –
(i) An offer
(ii) Unqualified acceptance
(iii) Intention to create legal relations
(iv) Consideration and
(v) Capacity to contract.
All these requirements must be present or satisfied before a valid contract comes to existence in law between parties. See:
ALFOTURIN LTD. V. A.G. FEDERATION (1996) 9 NWLR (475) 634 at 656-7, NWAIGE V. TRANSPROJECT NIG. LTD. (2000) 8 NWLR (669) 364 at 375, P.T.I. V. NWAMU (2001) 5 NWLR (705) 112. The above requirements are contained in the pleadings of the parties particularly at paragraphs 1-6 of the Appellant’s Statement of Claims at pages 47-8 of the record of appeal and paragraph 3 of the statement of defence filed by the Respondent which is at pages 54-55 of the record.
With that as a foundation, the position of the Appellant on the performance of the contract is as contained in paragraphs 7 and 8 of the statement of claim which are as follows:-
“7. The Plaintiff avers that she had since performed the contract by numbering the vehicles.
8. The Plaintiff further states that on performance of the contract, she was issued a Fortune Bank Plc. cheque No, 000205439 of 25/10/2000.”
These are the facts upon which the rejected way bill was tendered by the Appellant, according to learned Counsel, as evidence of performance.
On its part, the Respondent had in its statement of defence, at paragraphs 4 and 5 at page 54 of the Record of appeal averred thus:-
“4. The defendant denies paragraph 7 of the statement of claim and avers in answer that the supply of the Universal plate numbers was never executed by the plaintiff as the defendant never took delivery of same till date.
5. The defendant denies 8 of the statement of claim and in reply states that the said Fortune Bank Plc. cheque was issued in advance i.e. post dated with an understanding that the execution of the said contract was to be concluded in at least 2 days after the 13th of October 2000.”
It is clear by the above averments that the parties had joined issues on the performance of the contract between them. Now the learned Counsel are right that by the provisions of Sections 135(1) and 136 of the Evidence Act as well as established judicial authorities, the law is settled that the burden of proof lies on the party who desires the Court to give judgment as to any legal right dependent on the existence of facts which he asserts, to prove those facts because it is he who would fail if no evidence at all were given on either side. The provisions of Sections 135(1) and 136 are as follows:-
“135. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist-
136. The burden of proof in a suit or proceeding lies on that person who would foil if no evidence at all were given on either side.”
See: OYOVBLARE V. OMAMURHOMU (1999) 10 NWLR (621) 23, NEPA V. INAMETI (2002) 11 NWLR (77) 397, A.D. V. FAYOSE (supra).
The general concept of burden of proof in civil cases or proceedings postulates the obligation placed by law on a plaintiff to present or adduce evidence in proof of the assertion he makes in a case he presents in Court against a defendant. The burden of proof is on the plaintiff who is expected to supply the evidence required to prove the positive assertions of facts on which his claim was made since it is he who would fail if no evidence was given at all in the case. However by the provisions of Section 137(1) of the Evidence Act, the burden of proving first the existence or otherwise of a fact lies on the party against whom judgment would be given if no evidence were produced on either side. This clearly shows that the burden of proof is not static and is in two different categories of:-
(a) the legal burden and
(b) the evidential burden.
The legal burden is the proof which remains constant throughout a trial. It is the burden of establishing the facts asserted which will support a party’s case and is the burden of proof as a matter of law and pleadings or as the case may be, of offences charged in criminal trials which requires a party to establish a case whether by preponderance of evidence or beyond reasonable doubt. It is also referred to as the persuasive burden.
The evidential burden on its part, is the burden of proof in the sense of adducing evidence in proof of a particular fact asserted either in the positive or negative by a party to a case. It is the burden which may shift from one party to the other as a case progress in trial and it rests on a party who would fail if no further evidence as the case may be, was adduced by either side. Thus, the evidential burden rests initially on a party bearing the legal burden, but as the weight of the evidence given at the trial varies, so will the evidential burden shift to the party who would lose if no further evidence was given at that stage.
This is the import of the provisions of Section 137(2) and (3) of the Evidence Act which say that:-
“137.(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleading have been dealt with.
(3) Where there are conflicting presumptions, the case is the same us if there were conflicting evidence.”
It may however be noted that under Section 137(1) an exception has been provided for as regards any presumptions that may arise in the pleadings. Where such a presumption in favour of a party arises, then the burden of rebutting it lies in law on the other party; for example where the truth of a party’s assertion lies within the personal knowledge of the other party, then the burden of disproving it is on the latter. See: KALA V. POTISKUM (1998) 3 NWLR (540) 1 at 17, OLUSESI V. OYELUSI (1986) 3 NWLR (31) 634, ARE v. ADISA (1967) NWLR, 304, FUBARA v. OGOLO (2003) 14 NSCQR (II) 638, DANA IMPEX V. ADERETOYE (2006) ALL FWLR (308) 1338.
Because it was the Appellant in his statement of claim that positively asserted that it had performed its own obligations under the contract in question, it owed the initial legal burden of proving the performance alleged because it is the Appellant that would fail or lose if no evidence at all was given in the case. It was in the attempt to discharge that legal burden that the rejected way bill was tendered.
As stated earlier, the rejection was on ground that it was not pleaded in the statement of claim. I would once more agree with learned Counsel because they are right on the law, that it is not every omission or failure to plead a document that would render it inadmissible in evidence. Put another way, the law now is that a document needs not be pleaded specifically by a party to be admissible in evidence and that so long as the material facts upon which the document is based are specifically pleaded, the document would be admissible in evidence. The rationale is that in such circumstances the document itself has become evidence of the facts pleaded and no longer a fact itself which must necessarily be pleaded. The rules of pleadings require that only facts and not evidence thereof need be pleaded by a party. See:
M.C.C. v. AZUBUIKE (1990) 3 NWLR (136) 74.
AMADI v. OLUMATI (1995) 7 NWLR (410) 739 at 752
SUSANO PHARMACEUTICALS CO. V. SOL. PHARM. LTD. (2000) FWLR (10) 1595 at 1601-2 in addition to the cases cited supra by learned Counsel on the point. In the premises, where a party has made specific averments of sufficient material facts in his pleadings in proof or support of a document that is tendered, such a document does not become inadmissible in evidence merely because it was not specifically named, mentioned or pleaded in the pleadings since it is evidence of the facts pleaded. The present position of the law in this regard is a departure and movement forward from the old position that for a document to be admitted in evidence in civil proceedings, it must be pleaded as stated in the cases of OYEDIRAN v. ALEBUIOSU, and the others supra cited by the learned Counsel for the Respondent. It may also be an exception to that general rule of pleadings when one bears in mind that admissibility is a rule of evidence that is governed as stated earlier on, by statute.
Proceeding in line with principles of law restated above the question that arises now in relation to the rejected way bill is whether there are sufficient material facts of the performance asserted by the Appellant in its pleadings which the way bill will be evidence of or proof of, so as to render its being pleaded unnecessary. Perhaps I should mention here that there is no dispute that the said way bill was not named, mentioned or pleaded by the Appellant in the statement of claim. I have set out before now the relevant paragraphs (7 and 8) of the Appellant’s statement of claim in which the performance of the contract in question was pleaded. What is undoubtedly clear on the face of the averments in these paragraphs is that no specific fact whatsoever of the manner or way the contract was performed by the Appellant was stated or averred to. For instance, the offer made by the Appellant and which was accepted by the Respondent was for the procurement of New Universal Plate Numbers for the newly acquired Prado vehicles. There are no facts pleaded in the Appellant’s pleadings as to where the plate numbers were to be or indeed were procured, there was no mention of the fact, that the numbers were delivered by the Appellant to Respondent and receipt or/and acknowledgement of the delivery of the numbers by the Respondent since the contract between the parties was in writing. These are some of essential material facts of the performance of the contract that require to be pleaded showing the existence of a way bill for the procurement from where the plate numbers were produced.
Without these vital facts, mere production of a way bill by the Appellant cannot ipso facto prove the performance which was barrenly pleaded in the statement of claim. The mere blanket pleading of performance of the contract without the ossifying facts to clearly show how it was done or carried out does not amount to pleading sufficient facts showing the existence of a way bill to render it admissible in evidence. The way bill in the above circumstances is a fact and not evidence of performance of the contract and therefore to be admissible in evidence, it had to be specifically pleaded. As rightly pointed out by the learned Counsel for the Respondent, the way bill may be relevant in the case and generally speaking, relevance governs admissibility of a piece of evidence, but with my finding above that the way bill is not evidence but fact, it needs to be pleaded before its relevance may affect its admissibility in evidence in accordance with the established position of the law.
For that reason, the High Court was right when it rejected the way bill on the ground that it was not pleaded. In the result, I resolve the issue against the Appellant.
The second (2) issue raised by the Appellant is whether the High court did not misplace the onus and burden of proof in the case. According to the learned counsel for the Appellant the issue which he said is whether the Respondent had proved by credible evidence that the Appellant has not performed her obligation under the contract, touches on whom the evidential burden of the performance of the contract rested. It was his contention that by the combined effect of sections 135, 136 and 137 of the Evidence Act, the evidential burden in a civil case is never static but moves like a pendulum and so the burden does not rest exclusively on the Appellant but to a person bound to prove the existence of any fact. Sections 135(2) and 137 of the Evidence Act were specifically referred to and it was argued that the Appellant here had pleaded performance of the contract and was issued a cheque which was dishonoured and so the Appellant sued for failure of consideration from the Respondent. Furthermore that since the Respondent had denied the performance of the contract, it behoved on it to prove that the contract was not performed in line with Section 135(2) as there was a presumption under Section 137(2) that the legal obligation had been discharged by the Appellant since a cheque was in its possession. That it is the position by virtue of Section 149 (e) of the Evidence Act. In addition, it was submitted that by the effect of Sections 27(2) and 30 of the Bill of Exchange Act there is the presumption that a bill of exchange once given, is for value and good faith unless it was proved that it was obtained by fraud, duress, fear or illegally.
Learned Counsel said that the crux of the Respondent’s defence was that the cheque was post dated, but there was no evidence of when it was issued and the date of 1st October, 2000 would mean that the cheque was issued before that day and even before the offer in the contract was made to the Respondent. He then pointed out that it will be against the common course of natural event, human conduct and public and private business which would defeat the import of Section 149 of the Evidence Act. It was his contention that the Respondent did not adduce evidence at the trial to rebut the presumption under the said Section but that the High Court was still persuaded by the Respondent thereby failing to give consideration to the presumptions arising from the pleadings or allow the evidential burden to shift in line with such presumptions that arose in the case.
Relying on Section 138 of the Evidence Act, the learned Counsel for the Respondent on his part, submitted on the issue that the law is that the legal burden of proof in civil cases rests squarely on the Appellant who must satisfy the Court by credible evidence that he manufactured the plate numbers in accordance with the terms of the contract and that same were delivered to the Respondent. According to him, the Appellant had not shown in its arguments the portion of the evidence showing delivery of the plate numbers and that the delivery cannot be a matter of conjuncture but one of proof showing where, when and who received them. Paragraph 7 of the Appellant’s statement of claim and 4 of the Respondent’s statement of defence were set out by him and it was argued that on the face of the pleadings, it was the Appellant who would lose and not get judgment if no evidence is led so it had the burden to lead evidence to prove its case. The case of A.D. v. FAYOSE (supra), was relied on.
It was the further submission by learned Counsel that the PW1, the only witness who testified for the Appellant had identified that the cheque issued the Appellant bore a bank stamp showing that it presented to that bank on 1st October 2000 which showed that cheque was post dated and presented before the date of 25th October, 2000 which was the date on its face for presentation. He said the Respondent’s witness had testified that the cheque was post dated and that same was counter-manded when the Appellant could not perform the contract. It was maintained that the Appellant who seeks to enforce a contract must show by credible evidence that it had performed its own side of the obligations under the contract to be in a position to insist on the other party’s performance, citing:
COKER V. AJEWELE (1976) 9-10 SC, BON v. AKINTOYE (1999) 12 NWLR (631) 392 and FETUGA V. UNILORIN (2000) 13 NWLR (683) 118 at 132. It was also contended that the argument that Appellant had discharged its obligation by the mere possession of the cheque is not tenable since the Respondent had explained how the Appellant came into that possession because cases are not won on the basis of presumptions or conjunctures but credible evidence which the Court deals with. As authorities for that position, the cases of FATOBA V. OGUNDAHUNSI (2003) 14 NWLR (840) 323 at 349 and ARCHIBONG V. EDAK (2006) 7 NWLR (980) 485 at 501 inter alia, were cited and we were urged to discountenance all arguments that tend to import the law on presumptions to replace parties’ duty to prove their case.
It may be recalled that I had while considering the issue 1, dealt with the burden of proof in civil cases in line with provisions of Sections 35, 136 and 137 of the Evidence Act. It is sufficient here to simply re-emphasise that the initial legal burden of proof is always on a claimant who is usually the plaintiff in a civil case, to prove the existence of the facts which he asserts and on which his claims are based and made against another party. Thereafter, depending on the evidence adduced and the issues of facts remaining to be proved in a case, the evidential burden of proof would arise and rest on the party who would lose if no further evidence was given or adduced at that stage of the case.
Now to misplace the onus or burden of proof in a case by a Court is to require a party on whom the law does not impose the duty or responsibility of adducing or calling evidence in proof of a particular fact which needed to be proved in the case, to provide or call such evidence. If either by the rules of pleadings, presumptions or specific provisions of the law of evidence, facts do not require proof by a party asserting them, then it would amount to misplacing the burden or onus of proof for a Court to require proof of the facts by that party since no such burden or onus exists in law on him. Such a misplacement of burden or onus of proof would therefore be wrongful in law and if relied on by a trial Court in its determination of a case then depending on the peculiarities of the case, its decision cannot and should not be allowed to stand on the ground that it would be erroneous in law. In the case of AKINKUNMI V. SODIQ (1997) 8 NWLR (516) 277 at 291 it was held by the Supreme Court that:
“Where a court misplaces the onus of proof on the wrong party thus enoneously shifting the burden placed by law under Section 136 of the Evidence Act Cap 22 Laws of the Federation, then the judgment ought to be set aside.”
See also U.B.N. LTD. v. OSEZUAH (1997) 2 NWLOR (485) 28.
NOR v. TARKAA (1998) 4 NWLR (544) 130 at 137,
IHEANACHO v. CHIGERE (2004) 7 SC (II) 49 at 64.
In the present appeal, the legal burden or onus of proof, based on the state of the pleadings before the High Court, was undoubtedly placed by the provisions of Sections 135(1) and 136 of the Evidence Act on the Appellant because it was the Appellant that desired that Court to give its judgment on the existence of certain facts asserted in the statement of claim and it is the Appellant that would fail if no evidence at all was given on either side of the case. It would be remembered that this aspect of the burden or onus of proof required by law is static and always on the party who makes assertions whether positive or negative based on facts which are contained in the pleadings and on the basis of which he desires a Court to give judgment in his favour and who would not get that judgment if no evidence at all was given, depending on the state of the pleadings by the party against whom the claims are made. Like I have stated before now, this category of burden or onus of proof is usually on a plaintiff in a civil case who approaches a Court seeking that judgment be given in his favour based on the facts which are asserted and placed before the Court in pleadings filed in Court to show grounds and basis for the claim for judgment against the party or parties they were made.
Unless the facts asserted by a plaintiff are specifically or by necessary implications admitted by the other party or enjoy statutory presumptions, the plaintiff would throughout the determination of a case, owe and bear the burden or onus of adducing admissible and sufficient evidence in their proof in order to be entitled to the judgment desired from the Court. Until that burden is satisfactorily discharged by a plaintiff, then there would be no thing for the other party to prove or defend and such a burden or onus cannot shift from the plaintiff to a defendant.
It would appear that the Appellant’s submission as it relates to the issue is not that the High Court has misplaced the legal burden on it. Rather the meat of the Appellant’s contention as seen in the submissions reviewed above is on the evidential burden or onus which as stated earlier, depends on the state of evidence at a particular stage of a trial. This is the category of the burden of proof which is not static or permanently placed on a particular party in a case. It is the evidential burden that is provided for in Sections 135(2) and 137(1) and (2) of the Evidence Act, which are basis of the Appellant’s submissions on the issue.
The pith of the Appellant’s submission is that since it had pleaded the performance of the contract and issuance of a cheque by the Respondent, the latter had the duty to prove the allegation of non-performance of the contract under Section 135(2) of the Evidence Act.
Also that by the possession of the cheque issued by the Respondent there is presumption under Section 137(2) that the Appellant’s obligation of executing or performing the contract had been discharged.
Section 135(2) of the Evidence Act provides thus:-
“(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
These provisions are simple, unambiguous and clearly say that a person, who bears or owes a legal duty or obligation to prove the existence of any fact, has and bears the burden or onus of proof. It should be noted that these provisions are amplification or emphasis on the preceding provisions of subsection (1) which imposes the legal burden of proof of the existence of facts on a party or person who desires that a Court gives judgment dependent on such facts which he asserted. The provisions therefore deal with the legal burden of proof which is constantly on a party who asserts facts on the basis of which he seeks judgment from the Court.
As demonstrated earlier, the Appellant had approached the High Court for judgment based on the facts of a contract which it asserted it had executed and that Respondent had failed or refused to pay for but that it was on possession of a dishonoured cheque issued by the Respondent which was tendered in evidence. The Respondent had unequivocally and specifically denied execution or performance of the contract by the Appellant as well as how the cheque in question was given to the Appellant in both pleadings and evidence. The denials are contained in paragraphs 4 and 5 of the Respondent’s statement of defence which I have set out earlier, as well as paragraphs 6 and 7 of the statement defence which are to the effect that it was because the Appellant did not execute the contract in question, the Respondent directed its bankers not to honour the cheque issued to the Appellant. The Appellant did not react to these material matters of facts in relation to the issue of execution or performance of the contract between it and the Respondent by way of Reply, or amended or further pleadings. So on the state of the pleadings before the High court, it was the Appellant that pleaded execution of the contract for which it claimed “outstanding debt owed by the Defendant for failure to pay for numbering of their newly acquired Prado Jeep vehicles.”
The Respondent had effectively denied the execution of the contract and so whether or not the contract was executed by the Appellant as asserted was a question of facts the existence of which the Appellant had the legal duty to prove since it asked for judgment from the High court based on the fact that the contract was executed by it. In the circumstances the Appellant had the burden to prove the existence of the facts which would entitle it to the legal right of the claim to the judgment that the Respondent owed the debt asserted in the statement of claim.
The burden or onus of proof is therefore placed by law under Section 135(2) on the Appellant and there is no presumption in the provisions under which the Appellant can take cover or avoid the initial burden in the first instance. In this regard the learned counsel for the Appellant had not shown a portion of the judgment by the High Court where the legal burden or onus of proof was misplaced on the Appellant to prove the existence of the fact of execution or performance of the contract by it which was at the heart of its claims against the Respondent I cannot find any misplacement of the burden or onus under Section 135(2) of the Evidence Act by the High Court on the Appellant.
Section 137(2) on its part deals with the evidential burden that may shift from one party to the other in the course of trial. But it should be pointed out that evidential burden only arises after the satisfactory discharge of the legal burden of proof which is the foundation upon it can shift from one side of a case to the other. Where a party fails to discharge the legal burden or onus of proof placed on him by law, the basis on which the evidential burden can arise would be absent or nonexistent. The learned Counsel for the Appellant had said that because the Appellant had pleaded execution of the contract and put in evidence the dishonoured cheque issued by the Respondent, the burden had shifted to the latter to disprove the execution.
However the decision by the High Court was that the Appellant had not discharged the legal burden of proving the execution of the contract the facts of which are the basis of its claim against the Respondent. In its own words the High Court had decided at page 127 of the record of appeal that:-
“The Plaintiff is claiming for the executed contract performed but has not shown any document that she actually executed the contract.”
Earlier on, at page 126, the High Court had stated that:-
“The plaintiff has not tendered any document or lead (sic) credible evidence to convince the court that she had performed her contractual obligation.”
So in the absence of credible evidence from the Appellant to discharge the legal burden of proof of the execution of the contract it asserted the issue of misplacing or shifting of the evidential burden did not arise. The Appellant it should be noted, is to succeed on the strength of the evidence adduced in the discharge of the burden placed on it by law and not on the failure of the Respondent to disprove the execution which according to the High court decision set out above, was not proved.
Let me emphasise that the law places the burden of proof on the Appellant who made positive assertion of the fact that it had performed its own side of the obligations under the contract with the Respondent to prove the existence of the fact of that execution by adducing sufficient evidence to be placed on the imaginary scale of justice in order to tilt it and thereby shift the burden of disproof to the Respondent.
The burden was not misplaced but rather correctly placed by the High court on the Appellant pursuant to the provisions of section 137(2) of the Evidence Act.
It has also been contended that the mere possession of the cheque by the Appellant raises the legal presumption that the obligation on the Appellant under the contract had been discharged and reliance was placed on Section 149(e) of the Evidence Act which provides thus:-
“149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(e) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
What is apparent but has not been conceded to by the learned counsel for the Appellant, is that the presumption provided for in these provisions is a rebuttable one and only comes into play when specific facts require proof and asserted by a parry are not available in a particular case. In the absence of such positive assertions of facts by a party, the court is given the judicial discretion to presume the existence of such fact having regard to the common course of events, human conduct and public and private business in relation to the peculiar facts of the case. In particular, to presume that when a document creating an obligation is in the hand of the obligator, the obligation has been discharged. The document the Appellant is talking about is the cheque issued by the Respondent and about which pleadings and evidence had been placed before the High court as to how and in what circumstances it was given to the Appellant. The specific pleadings and evidence placed by the Respondent before the High Court had taken out the presumption provided in Section 149(e) on the possession of the cheque by the Appellant beyond facts that attract the application of the provisions. But even if such a presumption arises, the evidence of DW2 has clearly rebutted it since the Appellant was shown not to have discharged the obligation under the contract in respect of which it was issued the cheque. In fact DW2 who succinctly narrated to the High Court the circumstances of the facts of how the Appellant was given the cheque was not effectively cross examined by the Appellant on the issue of whether the Appellant indeed and fact executed the contract for which the cheque was issued by the Respondent. In the result, the presumption provided for under Section 149(e) does not avail the Appellant.
The presumption provided by Sections 27(2) and 30 of the Bill of Exchange Act was also raised by the Appellant. This presumption like the one under Section 149(e) of the Evidence Act only arises when specific facts and evidence are not available in a case to warrant the exercise of the judicial discretion by a Court. Once more, the moment the parties to a case make specific averments or assertions of facts in their pleadings about their legal rights or obligations which form the basis of their claims in Court, then the burden is to prove their entitlement to the claims particularly when and where such facts are effectively denied and disputed by the other party. In addition the presumption is a rebuttable one and from the facts and evidence presented by the Respondent at the trial of the case, the presumption provides no refuge for the Appellant from the burden of proving that it had performed or executed the contract which was the value for which the cheque was issued by the Respondent.
In the above premises I answer the issue 2 raised by the Appellant by saying that the High Court did not misplace the burden of proof in the case.
The last issue formulated by the learned Counsel for the Appellant is whether the High court did not reach perverse conclusion due to errors made in the evaluation of the evidence before it.
After conceding that the finding of facts is for a trial Court, the learned counsel said that an appellate court would intervene and interfere with such findings where they are perverse or did not result from proper exercise of discretion, relying on:
AROYEWUN v. COP (2004) 16 NWLR (899) 430 and 7 UP BOTTLING CO. LTD. V. ADEWALE (2004) 5 NWLR (862) 214.
He submitted that by the authority of NKANDO V. OBLANO (1997) 5 NWLR (503) 31 at 56, a perverse finding is one which ignores the facts or evidence led before a Court and when:-
(a) it runs counter to the pleadings and evidence, or
(b) when it is shown that the court took into account matters which it ought not to have taken into account or shut its eyes to relevant facts and evidence, or
(c) when it has occasioned a miscarriage of justice.
Learned counsel then relied on the submissions made on the provisions of Sections 135(2), 137(2) and 149(e) of the Evidence Act as well as Sections 27(2) and 30 of the Bill of Exchange Act on his issue 2 which are contained in paragraph 4.2.7 to 4.2.72 at pages 6-7 at pages 6-7 of the Appellant’s brief of argument as the first reference point that the High Court’s findings were perverse. Extracts of the evidence in chief of DWII at page 109 of the record and a summary of the evidence by the High Court in its judgment at page 121 of the record of appeal were set out to show that a miscarriage of justice was occasioned to the Appellant. In addition the portion of the judgment at page 126 of the record of appeal earlier set out in this judgment was referred to by the learned Counsel where the High Court held that the Appellant did not tender any document or lead credible evidence to convince that Court that it had performed its contractual obligation. It was contended that the cheque tendered and admitted in evidence as Exhibit D is a document under Section 2 of the Evidence Act which was tendered for the purpose of establishing the performance of the contract and so the High Court had shut its eyes to it in its finding.
Furthermore, that the High Court did not consider the oral testimony adduced by the Appellant on the performance of the contract which according to learn Counsel, was never controverted or contradicted. He said that through the Respondent had said that it had explained to the Appellant why the cheque would not be paid, the Respondent had not denied paragraph 11 of the statement of claim that letters of demand were written by the Appellant and that the evidence by the Appellant was in line with the pleadings and ought to have been accorded credibility by the High Court. It was the further contention by learned Counsel that the High Court did not give consideration to the evidence of PW1 or that of DW11 whose testimony was used to test the veracity of the former evidence. Also that the PW1 gave evidence of what he was told and heard in line with Section 77 of the Evidence Act on the fact that the cheque was dishonoured because of lack of funds in the Respondent’s account even through DW1 had testified that it was not the custom of his bank to disclose details of an account to third parties. It was submitted that even if the evidence of DW1 was preferred it would not have any fatal effect on the evidence of PW1 since the word “DAR” which was defined in ACCESS BANK PLC v. MARYLAND FINANCE CO. & CONSULT SERVICES (2005) 3 NWLR (913) 460 AT 474 was boldly written on it which indicated that the drawer had no money in the account. Again it was argued that the evidence of the Appellant ought to have been accorded credibility and we were urged to allow the appeal, set aside the decision of the High Court and invoke Section 16 of the Court of Appeal Act to enter judgment in favour of the Appellant.
The learned Counsel for the Respondent had argued the issue in his own issue 2 and the submissions are to the effect that the finding by the High Court that the Appellant did not adduce credible evidence to prove performance of the contract was not perverse. Also that the Appellant did not show any portion of evidence of delivery of the plate numbers which cannot be a matter of conjuncture but proof by showing when, where and who received them. Reliance was placed on Section 138 of the Evidence Act and A.D. v. FAYOSE (supra) on the burden of proof which it was argued the Appellant did not discharge. In conclusion, the Court was urged to dismiss the appeal for lacking in merit and to affirm the decision of the High Court.
Learned Counsel for the Appellant is right on the law that a perverse decision is one that is not supported by the facts and evidence adduced in support thereof. Decisions of Courts of law are required to be entirely predicated on the credible evidence placed before the courts in proof of the facts asserted by the parties in line with the requirements of the law. Any decision of a court reached in any one of the situations set out in the case cited by learned Counsel above, would clearly amount to a perverse decision which the appellate courts would not only have the power and jurisdiction, but also the duty to interfere with by setting it aside. A perverse decision is one which lacks any quality of justice according to law, equity and even common sense such that it can rightly be called a peverse and truly purported decision. See:
C.S.S. BOOKSHOPS LTD. v. R.T.
M.C.R.S. (2006) 11 NWLR (992) 530.
UDENGWU v. UZUEGBU (2003) 13 NWLR (836) 136,
ANYABINE v. OKOLO (1998) 13 NWLR (582) 444.
I also agree with the learned Counsel because he is right, that it is the primary duty of a trial court to evaluate or assess the evidence placed before it by the parties and apply it to the facts in line with established principles of law in order to arrive at its decision in the resolution of the dispute by the parties. The trial Court is in a unique position in respect of oral testimony of seeing and physically hearing and observing witnesses as they give evidence before it. That position gives the trial Court the opportunity of directly hearing and taking evidence from the “horse’s mouth”; people who knew the facts asserted by the parties first hand and be able to properly assess the probity or weight that should be accorded to such evidence. In that regard, the Appellate courts have evolved the practice and attitude of reluctance in interfering with the evaluation of evidence by a trial court particularly as it relates to the credibility of witnesses who gave oral testimony at the trial. Once it is shown that a trial court properly and in line with known principles of practice and procedure, evaluated or assessed the evidence adduced and ascribed the due probative value or worth to it, the Appellate court would not interfere with such an exercise. The style, method or manner of such assessment or evaluation does not matter since it is one of choice or discretion so long as it shows a full appreciation and application of the principles of law guiding the exercise or performance of such a duty.
See:
EZUKWU V. UKACHUKWU (2000) 1 NWLR (642) 657,
SAGAY V. SAJERE (2000) 6 NWLR (661) 360,
ARABAMBI V. A.B. IND. LTD (2005) 19 NWLR (959) 1. However where a trial court fails to utilize the opportunity of seeing and hearing evidence from witnesses or improperly or even failed to discharge its primary duty of evaluation of the evidence placed before it, an Appellate Court owes the duty in law then a complaint is properly brought before it on the issue, to intervene and correct the error in the evaluation or omission to evaluate the evidence as the case may be. For instance when a trial was shown to have taken into account factors which are clearly not relevant or left out or ignored relevant ones in its assessment of the evidence before it, an Appellate Court would interfere with such evaluation and effect the necessary correction. Similarly, where it was demonstrated that a trial court did not through failure or omission to evaluate any or all of the material evidence adduced by the parties which is capable of affecting its determination of a case, the Appellate court would intervene to assess or evaluate the evidence and take decision thereon See:
DUMEZ (NIG) LTD V. NWAKOBA (2008) 18 NWLR (1119) 489, TINUBU V. KHALIL & DIBBO TRANSPORT LTD. (2000) 11 NWLR (677) 171. That should be enough on the general position of principles of law on the issue.
The first point of complaint in the issue is that the High court misplaced the burden or onus of proof in the case as canvassed in paragraphs 4.2.7 to 4.2.12 in respect of issue 2 which I have already determined above. With the resolution of the point in issue 2, it is no longer live to be decided under this issue. I say no more on it here.
The next point is that the decision of the High court ran counter to the evidence led before it. Reference was made to the evidence of DW11 at page 109 of the record and summary of it by the High Court in its judgment at page 121 of the record of the appeal to support such contention.
The evidence in chief which appears at page 109 of the record of appeal is that of DW1 and NOT DW11 as stated by the learned Counsel for the Appellant in his brief of argument. The summary of his evidence by the High Court at page 121 of the record was correctly set out by the learned Counsel and the difference between the two is that in the summary the High court had stated that the witness had testified that the cheque, Exhibit D did not pass through their records while the evidence itself shows that the cheque had passed through the records. The learned Counsel had however not made any attempt to point out where in the assessment or evaluation of the evidence adduced by all the parties or even of DW1, the difference between the evidence or summary by the High Court was used as a reason or basis for the finding that the Appellant had failed to adduce credible evidence to prove that it had performed or executed the contract between it and the Respondent. It should be noted that there is a world of difference between a summary of evidence, known as review of evidence by a trial Court, and the evaluation or assessment of such evidence for the purpose of ascribing value to it. A summary of evidence simply means what it says, i.e. restating the oral testimony of witnesses in brief or shortened form or setting out the material points or effect of the evidence without repeating every words used by the witnesses. It is merely a condensation, abridged or concise restatement of the testimony of a witness by a court in writing or considering its judgment in a case. A summary of evidence represents a court’s review of the key or vital points in the oral evidence of a witness on material facts in issue in the case.
Evaluation of evidence on its part is assessing or weighing the evidence of witnesses using the accepted parameters or factors such as admissibility, relevance, probability, conclusiveness, etc and placing it on the imaginary scale of justice in order to see which one has more weight. Evaluation of evidence entails an appraisal or estimation of the evidence so as to give it credit, value or weight using the relevant factors or considerations including the demeanour of witnesses from which the court may draw necessary inferences from the opportunity of seeing and hearing them testify.
From the above descriptions, it is clear that a summary of evidence is quite different from evaluation of evidence by a court. Whereas summarizing evidence may be routine, evaluation of evidence is a primary duty imposed by law on a court and a function which should manifestly be shown to have been performed by a court before arriving at its decision in a given case. In this regard, summary of evidence, or review of evidence does not constitute evaluation of evidence which usually forms the basis or reasons for the Court’s decision. So a mistake in the summary of evidence which has not been demonstrated to have materially affected the evaluation of such evidence would be a mere slip and inconsequential to the decision of the Court.
The mistake in the summary of the evidence of DW1 by the High Court was mere human error that has not been shown in this appeal to have affected the evaluation of the evidence adduced by the parties which formed the basis of the High Court’s finding that the Appellant had not proved by credible evidence that the Appellant had performed its own part of the obligations under the contract with the Respondent.
It has also been argued that because the High Court had said in its judgment at page 126 of the record of appeal that the Appellant did not tender any document to convince that Court that it had performed its contractual obligations, the decision was perverse. It was pointed out that the cheque was a document that was put in evidence by the Appellant to prove performance. Learned Counsel is right that the cheque admitted as Exhibit D was a document put in evidence by the Appellant to prove performance of the contract. However admission of the cheque in evidence does not automatically translate or constitute credible evidence of such performance because it had been placed along side the evidence adduced by the Respondent on the imaginary scale to be assessed and evaluated to determine its appropriate probative value or weight. I have stated before now that the Respondent had adduced evidence of the facts and circumstances under which the cheque was issued to the Appellant which the Appellant did not controvert and was in line with the pleadings of the Respondent. So the admission of the cheque in evidence on the face of that evidence by the Respondent is not credible evidence that Appellant had indeed performed the contract for which it was issued the cheque. In the circumstances, the High Court’s decision was not perverse but supported by the facts and evidence adduced by the Respondent which it preferred to that of the Appellant.
Let it be borne in mind that it is not the function of this Court to retry a case on the notes of the evidence and set aside the decision of a trial court merely because the court would have reached a different conclusion on the same or even all of the facts. What is important is that there was evidence before the trial court from which its conclusion can reasonably be supported and not that an appellate would have arrived different findings. See:
OMOREGIE V. IDUGIEMWANYE (1985) 2 NWLR (5) 41, ONIFADE V. OLAYIWOLA (1990) 7 NWLR (161) 130, LAYINKA V. MAKINDE (2002) 10 NWLR (775) 358.
In the present appeal, I find that there was evidence before the High Court to support its conclusion that the Appellant had not proved performance of the contract for which it claimed payment from the Respondent.
That conclusion is therefore not perverse. For that reason, I resolve the issue against the Appellant.
In the final result, with the resolution of all the three (3) issues against the Appellant, the appeal is lacking in merit.
It fails and is dismissed accordingly, Parties to bear their respective costs of prosecuting the appeal.
JIMI OLUKAYODE BADA, J.C.A.: I have had the opportunity of reading in draft the Judgment of learned brother MOHAMMED LAWAL GARBA, JCA just delivered.
I agree entirely with the reasons lucidly set out therein leading to dismissal of the Appeal.
I also dismiss the appeal for lacking in merit.
HON. JUSTICE REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother GARBA, JCA just delivered. I entirely agree with the reasoning contained therein and the conclusion arrived thereat that this Appeal lacks merit.
The thrust of the Appeal is anchored on the lower court’s refusal to admit in evidence the way Bill sought to be tendered by the Appellant. A party who seeks judgment in his favour is required by law to plead all relevant facts and adduce adequate credible evidence in support of his pleading. See ARABAMBI v. ADVANCE BEVERAGE INDUSTRIES LTD. (2005) 19 NWLR (PT. 959) 1 SC.
Documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded. See:
OKEKE V. ORUH 1999 6 NWLR (PT. 606) 175 SC, MONIER CONSTRUCTION CO. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 SC., OKONKWO V. CO-OPERATIVE AND COMMERCE BANK (NIG.) PLC. (2003) 8 NWLR (PT. 822) 347 SC.
Therefore where the contents of a document are material, it shall be sufficient in any pleading to aver to the effect thereof as briefly as possible and set out part of the contents in the document. See ODUNSI v. BAMGBOLA 1995 1 NWLR (Pt. 374) 641 where the Supreme Court held that the pleading containing averments that annual rents were paid and receipts issued were enough pleading of the receipts.
Furthermore where Documentary evidence is not expressly pleaded the Court should scrutinize the entire pleading to see if the contents are pleaded by implication. See MONIER CONSTRUCTION CO. v. AZUBUIKE (1990) 5 SCNJ 75.
The Appellant in the instant case did not plead the Way bill nor plead facts on the way bill in his 14 paragraph statement of claim. The learned trial Judge rightly rejected to admit the Way bill.
For these and the more detailed reasons contained in the Lead Judgment I also hold the appeal is devoid of merit and is dismissed. I abide by the order as to cost.
Appearances
Olasoji O. Olowolafe with
I. Dako, I. Ekeada and
Yetunde OjuolapeFor Appellant
AND
K.B. OttanFor Respondent
