GUMAU v. ABDULLAHI
(2022)LCN/16765(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Monday, January 31, 2022
CA/J/101/2021
Before Our Lordships:
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
ABUBAKAR IBRAHIM GUMAU APPELANT(S)
And
HAJIYA LAILA UMAR ABDULLAHI RESPONDENT(S)
RATIO
CONDITION THAT MUST BE SATISFIED FOR A GROUNDS OF ERROR TO BE OVERTURNED
For a judgment to be overturned on grounds of error the appellant must demonstrate to the appellate Court that the error complained of is substantial and has resulted in a miscarriage of justice to him: see Azabada v. The State (2014) LPELR-23017 (SC) p. 22-23; Zailani v. Gumau (2020) 2 NWLR (PT 1709) 452 at 469-471 (SC); Eyisi v. The State (2000) LPELR-1186 (SC) p. 19; Onuoha v. The State (1988) 1 NSCC 411 at 419. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This case is about the indebtedness, or not, of appellant to the Respondent in the sum of ₦4, 150,000.00 (Four Million One Hundred and Fifty Thousand Naira). It is all about facts and has very little, if any at all, of law.
Respondent as plaintiff commenced action in the High Court of Bauchi State against the appellant as defendant claiming from appellant (1) A declaration that he, appellant, is indebted to her in the sum of ₦4, 150,000.00 being the balance of the a loan of ₦10,000,000.00 he took from her; (2) an order directing appellant to pay the said amount to her; (3) general and special damages of ₦250,000.00, and (4) ₦200,000.00 as cost of the action.
Appellant admitted borrowing the said sum ₦10,000,000.00 from Respondent but asserted that he had paid off his entire ₦10,000,000.00 debt to Respondent and it was Respondent that was indebted to him in the sum of ₦112,000.00 (One Hundred and Twelve Thousand Naira) by way of costs awarded in his favour and against her by different Courts, including this Court, in previous litigations between them. On the basis of that, he counterclaimed against her for the said judgment debt of ₦112,000.00 together with general damages of ₦150,000.00.
Pleadings were exchanged and both parties testified for themselves, in the course of which they also tendered documents relating to the loan transaction. Some of these documents turned out to be admissions by appellant in his own hand of his indebtedness to Respondent in the amount claimed as outstanding debt and also undertakings by him to pay it.
He, Appellant, on the other hand relied strongly on entries in his bank statement, Exhibit F, tendered by him showing that he had been regularly making payments to Respondent, which monies, he claimed, were payments made to Respondent in respect of his said outstanding debt of ₦4,150,000.00 to her. He also relied on two different amounts of ₦300,000.00 and ₦100,000.00 he claimed to have paid Respondent through the Police as further proof that he had completely cleared his said debt to her.
In his judgment of 21/6/2021, the trial Judge, the Honourable Chief Judge of Bauchi State, Rabi T. Umar, C.J., carried out what is no doubt a painstaking evaluation of the oral and documentary evidence adduced by parties before her and had little difficulty in finding that Appellant was truly indebted to Respondent in the said sum of ₦4, 150,000.00 as claimed by her and that the sums of money contained in the statement of account of Appellant which she claims were part of the payment of the said debt were actually made in respect of an entirely different business transaction between the two parties. On that basis and after holding that Appellant did not prove that the amounts she claimed to have paid to Respondent through the Police were actually handed over to Respondent, Her Ladyship proceeded to enter judgment for Respondent in terms of her claims in the action and dismissed the counterclaim of Appellant.
Appellant is vexed by that judgment hence this appeal which he hoisted on four grounds. He formulated the following three issues from his four grounds of appeal:
1. Whether the learned trial judge was right when she suo motu found and held that the payment made by him, (appellant) in Exhibit F (his statement of account) could be for some other transaction but not the loan between the appellant and the respondent.
2. Whether the learned trial judge was right when she decided on the suit before it without formulating or adopting any issue for determination in the suit before her.
3. Whether having regard to appellant’s case and evidence before the Court below the learned trial judge was right in entering judgment in favour of the Respondent and dismissing his (appellant’s) counterclaim without any reason and awarding cost of action against him.
Issue 1: Appellant’s grouse in his issue 1 is with the learned trial judge’s finding on the payments he made to Respondent as reflected in his statement of account (Exhibit F) tendered by him. In respect of those payments, the learned trial Chief Judge found as follows in his judgment:
“In my findings, I have come to realize that the payments claimed to have been made by the defendant in paragraph 6 of his statement of defence predate the date of commencement of loan between him and plaintiff. The finding of the Court further reveals that the payment made in Exhibit F could be for some other transaction but certainly not the loan whose agreement was entered after the payment allegedly made.”
Appellant complains that the said finding of the learned trial Judge was never raised nor argued by parties before him; that it is rather the judge that raised them on her own without affording parties opportunity to address her on it so his right to fair hearing was breached and we should intervene in his favour.
It does not appear to me even in the least that this argument of appellant of the trial judge making a finding suo motu is well founded, for on the pleadings exchanged by parties in the trial Court, Respondent clearly averred to the fact of the payments in Exhibit F (statement of account) relied on by appellant being in respect of a different and separate transaction between parties. She so stated in response to paragraph 6(a)-(n) of appellant’s statement of defence, when she said in paragraph 4 of her Reply that:
4. The plaintiff states further that between the year 2013 and 2014, she gave a 3 motors (PARKERS) to the defendant for him to manage their business which he usually transferred the accrued benefits of the said cars to her. All the payments as contained in paragraph 6a-n was in respect of that PARKERS and not the refund of the money collected in executing a contract with GRAND CEREALS JOS and the supply of the rise (sic) to Bauchi State Government. (Italics mine)
It is in the light of all the foregoing that the learned trial judge who had a duty to make finding on that issue made his finding in issue against appellant that Appellant finds difficult to live with and labels a finding from the blues. He is wrong; accordingly, I unhesitatingly resolve this issue against him.
Issue 2: Appellant’s complaint here seems rather academic. His complaint is that the learned trial judge determined the case without formulating any issue and that was wrong. In support of his contention that the trial Court had a duty to formulate issues for determination, he went on to cite decisions of the Supreme Court, including a dictum of Onnoghen, JSC (Later CJN) in Yadis Nigeria Ltd v. Great Nigeria Insurance Co. Ltd (2017) LPELR-3507 (SC), to the effect that an appellate Court has the right and indeed duty to formulate issues for determination. But in making that argument, appellant overlooked the fact that not only was the High Court of Bauchi State not sitting in an appellate capacity, the Rules of this Court and the Supreme Court on formulation of issues upon which the dictum of Onnoghen JSC was based do not have their equivalent in the Rules of the Bauchi State High Court. Most importantly, he also did not complain let alone show how the trial judge’s failure to formulate issues for determination caused any justice to him. For a judgment to be overturned on grounds of error the appellant must demonstrate to the appellate Court that the error complained of is substantial and has resulted in a miscarriage of justice to him: see Azabada v. The State (2014) LPELR-23017 (SC) p. 22-23; Zailani v. Gumau (2020) 2 NWLR (PT 1709) 452 at 469-471 (SC); Eyisi v. The State (2000) LPELR-1186 (SC) p. 19; Onuoha v. The State (1988) 1 NSCC 411 at 419. Here, it is not even appellant’s complaint that the trial judge did not resolve the issues joined by parties on their pleadings. Without that specific complaint, his argument of the lower Court’s alleged failure to formulate issues for determination, which argument he founded on the pronouncements of appellate Courts that were made pursuant to their peculiar rules, is puerile and must be and is hereby resolved against him.
Issue 3:
Here appellant focused his attack on the evaluation of the evidence by the trial Chief judge. He submitted that the trial judge did not properly evaluate the evidence, particularly the entries in Exhibit F (statement of account) and Exhibits J and I (his purported payments to the Police of the sums of ₦300,000.00 and ₦100,000.00 for onward delivery to Respondent as part of his attempts to defray the debt) tendered by him. He said if the trial judge had properly evaluated those documents and used them as hangers to assess oral testimony of the parties as the law enjoins him to do, his decision would have been different. He also repeated his now rejected contention of the trial Chief Judge wrongly raising and making a finding all by himself of the payments in Exhibit F being for a different transaction other than for payment of the ₦4,150,000.00 debt.
Again, I find no merit in these arguments of appellant. First, as regards the payments he claims to have made to Respondent through the Nigerian Police, for which he tendered Exhibits I and J, the burden is on him, as the person asserting payment, to prove them, especially as the Respondent denied receipt of the payments. The least he can do to prove it, in the absence of any acknowledgment of receipt of the said payments by Respondent, is to call the police to testify to the payments and prove that they handed them over to Respondent. Having omitted to do that, the less said about them the better.
Coming next to Exhibit F (his statement of account) and its entries showing that he made payments to Respondent, which payments he claims defrayed his indebtedness to Respondent, it has to be noted that the last payment he made to Respondent as shown in those entries is the one for 24th October 2014.
As against that last 24th October 2014 fund transfer in Exhibit F is the appellants’ own subsequent Undertaking in Exhibit A, made under his hand on 24th December 2014, three months later. There, appellant undertook as follows:
I, Abubakar Ibrahim Gumau hereby undertake to pay the sum of ₦4, 150,000.00 to Laila Umar as total balance on or before the end of March 2015. The money which was released to me for the purpose of running a business late last year 2014 (sic).
The signature and handwriting of appellant of his name appears at the foot of this Undertaking and match the one appellant was made to sign in the Court below as shown in Exhibit K. Appellant did not dispute signing Exhibit A, which was in any case was tendered without any objection from him. What is more, he did not even make any issue of it in his final address in the lower Court as he meekly suggested when it was tendered in evidence. At any rate, the Court can on its own motion compare handwriting and even signatures in clear cases (as in the instant one) and reach a finding on them: See Section 101 (1) of the Evidence Act 2011; Queen v. Wilcox (1961) N.S.C.C. 274 at 276; Adenle v. Olude (2002) 18 NWLR (PT 799) 413 (S.C.); Ndoma-Egba v. ACB (2005)14 NWLR (PT 944) 79.
The point being made here is that, it is most improbable that appellant who claims to have fully defrayed his indebtedness to Respondent by the entries in Exhibit F terminating on 24/10/2014 will still undertake to pay the same ‘already paid’ debt three months later. That alone shows the lie in his assertion.
That is not even all, for there are also other pieces of evidence that supports the trial judge’s conclusion that the said debt was indeed still owed by Appellant to Respondent. For instance, there is the letter, Exhibit C, dated 05/04/2016 from Respondent’s solicitors, addressed to Appellant demanding payment of the same ₦4, 150,000.00 outstanding debt. Appellant failed to respond to that letter. His failure to reply that letter and deny it also further implies admission of the debt: see Rematon Service Ltd v. NEM Insurance (2020) 14 NWLR (PT 1744) 281 at 298; Bagobiri v. Unity Bank Plc (2016) LPELR-41161 (CA); Gwani v. Ebule (1990) 5 NWLR (149) 201; Bellview Airlines Ltd v. Fadahunsi & 2 Ors (2015) LPELR-25915 (CA).
There is also appellant’s application in Exhibit E before the High Court of Bauchi where, after the judgment of the lower Court in Respondent’s favour, appellant pleaded with that Court to exercise its discretion in his favour to enable him liquidate the said judgment debt by instalmental payments of ₦30,000.00 per month. It is most inconceivable for appellant to apply to liquidate the entire judgment debt in installments if he was not really indebted to respondent as he claims, especially when he was already appealing against the same judgment and could have applied for stay of execution.
In the light of all the foregoing, one is at pains to understand how Appellant can seriously seek to assail the judgment of the lower Court on grounds of improper evaluation of evidence. He does not have me with him. I also resolve this issue against him.
In the final analysis, this appeal, having failed on all the three issues it was argued, is hereby dismissed while the judgment of the lower Court is affirmed.
Costs follow the events and considering the frivolous nature of this appeal, I assess the cost of this appeal at ₦150,000.00 against appellant and in favour of Respondent.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read a draft copy of the lead judgment rendered by his Lordship BOLOUKUROMO MOSES UGO JCA and I am in agreement with the resolution of the three issues thrown up in the appeal that the appeal fails and should be dismissed.
I also dismiss the appeal and abide by the orders made in the judgment.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have been availed with an advance copy of the lead Judgment and also participated in the pre judgment conference with members of this panel. I associate myself with the pronouncements of his Lordship Hon. Justice BOLOUKUROMO MOSES UGO, JCA having regard to the fuller reasons given in the lead Judgment.
This appeal is unmeritorious, and is accordingly declined.
Appearances:
D.G. Hassan, Esq. For Appellant(s)
Sadiq Abubakar, Esq. For Respondent(s)
