HENRY v. DEMMY GLOBAL RESOURCES LTD (2020)

HENRY v. DEMMY GLOBAL RESOURCES LTD

(2020)LCN/14022(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Wednesday, March 18, 2020

CA/EK/79/2018

Before Our Lordships

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

OLUMIDE HENRY APPELANT(S)

And

DEMMY GLOBAL RESOURCES LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY CAN BENEFIT FRM HIS OWN WRONG

The law is trite that a party cannot be permitted to benefit from his own wrong or default. See the cases of:
a) VINZ INT’L (NIG) LTD V MOROHUNDIYA (2009) 11 NWLR (Pt 1153) P. 562 at 579 Para C – D,
b) FIRST BANK OF NIGERIA PLC V MAY MEDICAL CLINICS (1996) 9 NWLR (Pt 471) P. 195
c) ADEDEJI V NATIONAL BANK OF NIGERIA LIMITED (1989) 1 NWLR (Pt 96) P. 212 and
d) SOLANKE V ABED (1962) 1 SCNLR P. 371. PER AKINBAMI, J.C.A.

WHAT CONSTITUTES AN ILLEGAL CONTRACT

First nonetheless, it is pertinent to resolve the question of “what constitutes an illegal contract? The eight edition of the Black’s Law Dictionary defines an illegal contract in page. 345 as “a promise that is prohibited because the performance, formation, or object of the agreement is against the law”. Contracts are illegal if the performance or formation of the agreement will cause the parties to engage in any activity that is illegal; there is no indication of this by the Appellant neither can any such indication be gleaned from the evidence before the trial Court.
In PAN BISBILDER LIMITED V. FIRST BANK LIMITED (2000) FWLR PT 2 pg 177 @ 188, “illegal contract” was described in the following words: “…it will be enough to say that the contracts which are prohibited by statute or common law, coupled with provisions for the sanction (such as fine of imprisonment) in the event of its contravention are said to be illegal.’’
See also WEST CONSTRUCTION COMPANY LTD. V. BATALHA (2006) ALL FWLR PT 315, pg. 1 @ 16 Para D; KACHIA V. HADI (2012) ALL FWLR PT 650 pg. 1417, paras G-H. PER AKINBAMI, J.C.A.

WHETHER OR NOT AN UNCHALLENGED EVIDENCE WILL BE DEEMED ADMITTED BY THE COURT

It is settle law, where a piece of evidence given by witness is not challenged or contradicted under cross-examination, such a piece of evidence is deemed admitted and acted upon by the Court accordingly. See OBEMBE V. WEMABOD ESTATE LTD. (1977) 5 SC 115 at 140; OGUMA V. IBWA (1988) 3 SCNJ (PT. 1) 13 AT 33-34; OFORLETE V. STATE (2000) FWLR (PT. 12) 2081 at 2098-2099. PER AKINBAMI, J.C.A.

WHETHER OR NOT EVIDENCE NOT COVERED BY PLEADINGS GOES TO NO ISSUE

The law is very elementary that evidence not covered by pleadings goes to no issue. See: ALIBO V. OKUSIN supra at 1078; OWOADE V. OMITOLA (1988) 5 SC 1 at 18; ACD LTD. V. GWAGWADA (1994) 5 NWLR (PT. 345) 25 at 35; NWAWUBA V. ENEMUO (1988) 5 SC 264 at 289. PER AKINBAMI, J.C.A.

STANDARD OF PROOF IN CIVIL MATTERS

When the respective pieces of evidence of the parties are placed on imaginary scale of justice, the picture that would emerge is that of overwhelming preponderance of the evidence of the Respondent. See ADELEKE V. IYANDA (2001) 13 NWLR (PT. 729) 1 AT 23-24;
“It is a principle of the law that civil cases generally are decided on the balance of probabilities. This principle applies even where a declaration of title to the land is involved. As said by his Court per Ibekwe JSC in Kaiyaoja v. Egunla (1974) NSCC (Vol. 9) at 609:
“This Court has always held that what is required of a plaintiff in an action for the declaration of title is at least to establish his claim by preponderance of Evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to proof to satisfaction of the Court that he has a better title than the Defendant. We think that it is relevant to draw attention to the fact that the subject to the well known rules as was laid down in Akpan Awo v. Cookey Gam, (1913) 2 NLR 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of the title is not different from that which is required in civil cases generally. The only difference if we may say so, rest on the fact that the burden of the proof is on the plaintiff, who is claiming title, and that it never shifts to the Defendant throughout the trial. The difference therefore, lies, not in the standard of proof, but on the burden of proof.” PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State, sitting in Ado-Ekiti delivered by Hon. Justice C. I. Akintayo on the 1st day of February, 2018.

The Respondent (as Claimant before the Lower Court) instituted this suit against the Appellant (as Defendant) vide the Writ of Summons filed at the Registry of the lower Court on 14th of April, 2016. The Respondent in paragraph 23 of the Statement of Claim made the following claims:
1.) A sum of Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) only being the total outstanding indebtedness, due and payable to the Claimant by the defendant as at 24th December, 2014 on the MTN Recharge Cards purchased on credit by the defendant from the Claimant which indebtedness the defendant has failed, refused and or neglected to pay till date despite repeated demands.
2.) Interest at 30% per annum on the said sum of fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00 only from December, 2014 till the date of judgment in this matter.

3.) 10% judgment interest on the said sum of Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) only until the liquidation of the entire judgment sum.

Pleadings were duly filed and exchanged by counsel for both parties. Hearing commenced in the suit on 16th January, 2017. At the close of the testimonies of the parties and their witnesses, the suit was adjourned to 9th October, 2017 for adoption of written addresses.
The trial Judge held in his judgment delivered on 1st day of February, 2018:
“I hold therefore that, from the totality of the oral and documentary evidence before this Court, the claimant has proved her case as required in law to entitle her to judgment. Claimant’s claim succeeds. The defendant shall pay a sum of (N14,703,750.00) Fourteen Million, Seven Hundred and Three Thousand, seven Hundred and fifty naira only to the Claimant, being the total outstanding indebtedness due, and payable to the claimant by the defendant as at 24th day of December, 2014 on the MTN Recharge cards purchased on credit by the defendant from the claimant which indebtedness the defendant has failed, refused and/or neglected to pay till date despite repeated demands.

The defendant shall pay an interest of 20% per annum on the said sum of N14,703,750.00 (Fourteen Million, Seven Hundred and Three Thousand Seven Hundred and fifty naira) till today.
The Defendant shall pay an interest of 10% on the said judgment sum of N14,703,750.00 (Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira) only until liquidation of the judgment sum.”

Being dissatisfied, the Defendant/Appellant filed his notice and 6 grounds of appeal. The Appellant filed his Appellant’s brief on 7th June, 2019 and articulated 5 issues for determination as follows:
a) Whether the learned trial judge had the territorial jurisdiction to decide the suit? Ground one of the Notice of Appeal.
b) Whether from the state of pleadings and evidence on record, the contract between the Appellant and the Respondent was not an illegal contract? Ground three of the Notice of Appeal.
c) Whether the learned trial judge was right when he allowed inadmissible evidence and gave his decision based on those

inadmissible evidence. Ground two of the Notice of Appeal.
d) Whether the damages awarded by the learned trial judge to the Respondent was not excessive? Ground Five of the Notice of Appeal.
e) Whether there was cogent and believable evidence on record to support the decision or whether the decision of the learned trial judge is not against the weight of evidence? Ground Four and Six of the Notice of Appeal.

Brief Statement of Facts
The Respondent is a private limited liability company incorporated under the laws of the Federal Republic of Nigeria, and carries on communication related business (including sales of MTN Recharge Cards ) in Akure, Ondo State and several other State capitals in Nigeria. The Appellant, at all times material, was one of the customers of the Respondent initially at Ado-Ekiti Branch of the Respondent and later in the year 2014, at the Akure branch of the Respondent. The Appellant was buying MTN Recharge Cards from the Respondent in bulk as a Distributor.

Due to the trust that the Respondent had built on the Appellant, the Appellant was one of the customers that the Respondent was exposing credit sales to in

respect of her Recharge Cards. Whenever the Appellant needs MTN recharge cards, he sends a text message to the Respondent’s Manager informing him of the quantity of MTN recharge cards he intends to purchase on his next visit, to ensure that same was available. On 16th December, 2014 the Appellant, via a short message SMS from. His GSM telephone Number 08030625512 contacted the Respondent’s Akure Sales Manager (Mr. Saliu Abdul-Jelili Adetunji) on the latter’s mobile telephone number 08032030490 for the supply of MTN recharge cards in the following stocks on credit as their practice was N100 voucher- 40,000 pieces, N200 voucher-100 pieces, N400 Voucher- 2000 pieces, N 750 Voucher-3000pieces, which the total sum was Six Million , Six Hundred and Seventy Three Thousand, Seven Hundred and fifty Naira (N6,673,750.00).

On 17/12/14, furtherance of the request mentioned earlier, Appellant visited the office of the respondent in Akure for the purpose of collecting the stocks of recharge cards of Six Million Six Hundred and Seventy (N6,673,750.00) and to qualify for that round of credit sale, the Appellant presented three money transfer slips on the account Mormide Integrated invest. Ltd, allegedly used for the settlement of outstanding credit exposed to the Appellant by the Respondent on the 10th of December, 2014 via Exhibit N.

Later, it was discovered that the sum of One Million, Nine Hundred and Fifty Thousand Naira (N1,950,000.00), being the amount on one of the money transfer slips brought by the Appellant, was not seen as lodged into the account designated by the Respondent for such payment i.e. the account of Covenant Blessing Integrated System Ltd., a sister company of the Respondent. The Appellant confirmed to the Respondent sales Manager (CW2) that the said sum was reversed back into his account and promised to ensure the money was transferred before his next visit to the Respondent’s office. This, the Appellant failed/refused to do till date.

Having waited to no avail, on 19/12/2014, the Respondent’s Sales Manager sent a direct bank account of the Respondent to the Appellant for the Appellant to pay the sum of N1,950,000 that the Appellant said was reversed back into his account, as well as other outstanding sum of N6,673,750.00 due on the product supplied on 17/12/2014 to the Respondent.

Thereafter, the Appellant on the 23/12/2014 informed the Respondent’s Sales Manager that he would visit the Respondent’s office in Akure the next day, for another stock of MTN Recharge Cards. As indicated in the text sent to the Respondent’s sales Manager, the Appellant came and collected another stock of products totaling Six Million, Eighty Thousand Naira (N6,080,000.00) as per the distributorship price, alleging that he has given the evidence of payment of previous stocks to the sales Manager who had travelled for an assignment. As a well known and trusted customer, the MTN recharge cards were sold to him on credit as usual. When the sales Manager returned, he was approached for the transfer slips which the Appellant had alleged that he (Appellant) gave the sales Manager, the sales Manager was astonished and stated that the APPELLANT did not deliver any transfer slip(s) to him.

The sales Manager immediately called the Appellant on his Phone, the Appellant admitted that the money had not been paid and promised to make payment, while apologizing to the sales Manager. Sadly enough, the Appellant since then failed to fulfill his promise till date only to turn around and claim illegality.

Rather than pay the Respondent’s money which amounts to over fourteen million naira, the Appellant planned to travel outside the country with the Respondent’s money. It was when the Appellant almost completing this unscrupulous ambition that he was arrested at Abeokuta in a bank when he was trying to withdraw the proceeds of MTN recharge cards sold to him on credit by the respondent.

At police station, the Appellant admitted the supply of 17th December, 2014 and 24th December, 2014 and the fact that he had not paid for them albeit according to him was a deal he made with members of the Respondent’s staff and pleaded for the matter to be settled amicably. The Respondent gave the Appellant ample opportunity to settle his debt and the matter amicably.

Nonetheless, the Appellant out of greed failed to settle his indebtedness which amounted to the total sum of Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) owed or any part thereof till date to the Respondent, sequel to which this action was filed by the Respondent to seek judicial remedy on the matter.

In proof of her case, the Respondent called CW2 and CW6 who had direct contact in the transactions in issue in the case and subpoenaed CW1, 3, 4 and 5 to tender documents. The Appellant testified for his self and tendered documents. At the end of the proceedings, the learned trial Judge found in favor of the Respondent. Hence this appeal.
The Appellant has formulated FIVE (5) issues for determination namely:
a) Whether the learned trial judge had the territorial jurisdiction to decide the suit? Ground one of the Notice of Appeal.
b) Whether from the state of pleadings and evidence on record, the contract between the Appellant and the Respondent was not an illegal contract? Ground three of the Notice of Appeal.
c) Whether the learned trial judge was right when he allowed inadmissible evidence and gave his decision based on those inadmissible evidence. Ground two of the Notice of Appeal.
d) Whether the damages awarded by the learned trial judge to the Respondent was not excessive? Ground Five of the Notice of Appeal.

e) Whether there was cogent and believable evidence on record to support the decision or whether the decision of the learned trial judge is not against the weight of evidence? Ground Four and Six of the Notice of Appeal.The Respondent filed his brief on 9th of July, 2019. In his brief, Respondent distilled two (2) issues for determination of this instant appeal by this Honorable Court as follows:
WHETHER GIVEN THE CIRCUMSTANCE OF THIS CASE, THE LEARNED TRIAL JUDGE LACKED THE TERRITORIAL JURISDICTION TO DECIDE THIS SUIT. GROUND 1
2. WHETHER GIVEN THE CIRCUMSTANCE OF THIS CASE, THE TRIAL COURT BELOW WAS NOT RIGHT WHEN IT GRANTED THE RELIEFS SOUGHT BY THE CLAIMANT/RESPONDENT. GROUNDS 2, 3, 4, 5 AND 6.
I have carefully studied the issues distilled for determination by the parties, l am of the view that the issue for determination in this appeal can be put thus:-
“Whether from the totality of the oral and documentary evidence before the trial Court, the claimant has proved her case as required in law to entitle her to judgment.”

Sunday Ochayi Esq., learned counsel for the Appellant in arguing his lssue 1 submitted that it is trite that jurisdiction is the life wire of any proceeding in Court and everything done in its absence is simply, a nullity. He cited the case of In ESTATE OF LATE CHIEF H.I.S IDISI V ECODRIL NIGERIA LTD & 3 ORS, (2016) 12 NWLR (Pt 1527) P. 355 at 377-378 Para H-B, wherein the Supreme Court of Nigeria Per Ogunbiyi JSC held thus;
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Attorney-General for Trinidad and Tobago v Erichie (1893) Ac 518, 522, Timitimi V Amabebe (1953) 14 WACA 374; Mustapha V Governor, Lagos State (1987) 2 NWLR (Pt 58) 539; Utih v. Onoyivwe (1991) 1 NWLR (Pt 166) 166, 206. Put differently, jurisdiction in the life wire of any proceeding in Court and everything done in its absence is, simply, a nullity.”
See A.G., LAGOS STATE V EKO HOTELS LIMITED (2018) 7NWLR (Pt 1691) P. 518 at 552-553 Paras. See MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341, SKEN CONSULT (NIG) LTD V UKEY (1981) 1 SC 6 at 62 and INAKOJU V ADELEKE (2007) 4 NWLR (Pt 1025) P. 423 at 588 Para F.

That it is equally trite law that were the Court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, is an exercise in futility. The proceedings would amount to a nullity abinitio and liable to be set aside.

In determining whether or not the Court has jurisdiction to entertain a cause or matter, it is the originating processes filed by the plaintiff that would be considered. See A – G FEDERATION V GUARDIAN NEWSPAPERS LTD (1982) 7 SC 124, ADEYEMI v. OPEYORI (1976) 6 – 10 SC 31, AMAECHI V INEC (NO 2) (2007) 18 NWLR (Pt 1065) 98.

In LADOJA V Ajimobi (2016) 10 NWLR (Pt 1519) P. 88 AT 132 Para A, the Supreme Court of Nigeria Per Ogunbiyi JSC held thus;
“It is also a Plaintiff’s claim that vests jurisdiction in the Court.”

In THEOBROS AUTO-LINK NIG LTD V BAKELY INTERNATIONAL AUTO ENGINEERING CO. (2013) 2 NWLR (Pt 1338) P. 337 at 350-351 Paras G – A, the Court of Appeal Per Anyanwu JCA, held thus;
“The question of jurisdiction is very fundamental that it should be dealt with first before continuing with any proceedings. If a Court proceeds without jurisdiction it would amount to a nullity. It is also trite that the question of jurisdiction can be raised at any time even for the first time on Appeal.” See UKWU V BUNGE (1997) 8 NWLR (Pt 518) Pg 527; JERIC NIG LTD V UBN PLC (2000) 12 SC (Pt 11) P. 133 and A.G. LAGOS STATE V DOSUNMU (1989) 3 NWLR (Pt 111) Pg. 552.
“Territorial jurisdiction of a Court is relevant for the falidity of any proceedings before a Court.” See WUYEP V WUYEP (1997) 10 NWLR (Pt 523) p. 1541.
“In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim.”
See GAFAR V GOVT OF KWARA STATE (2007) 4 NWLR (Pt 1024) Pg 375 and TUKUR V GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt 117) P. 517.

Counsel submitted that the Writ of Summons in this Appeal is incompetent. And that there was no competent action before learned trial judge. The learned trial judge lacked the jurisdiction to entertain the suit as the action has not been initiated by due process of law, as well as failure to fulfill the condition precedent to the exercise of its jurisdiction.

Counsel submitted that a critical look at the Writ of Summons Filed at Registry of the High Court, Ado-Ekiti, Ekiti State on 14th April, 2016 shows that the Writ of Summons is headed in the Ado-Ekiti Judicial Division.

He urged this Court to hold that this fundamental defect in the Writ of Summons renders the Writ of Summons defective and incompetent and the entire proceedings in that respect.
Respondent’s claim as stated in the Writ of Summons and paragraph 23(i), (ii) and (iii) of the statement of claim are follows:-
Paragraph 23 (i)
“(i) A sum of Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) only being the total outstanding indebtedness due and payable to the Claimant by the Defendant from the Claimant which indebtedness the Defendant has failed, refused and/or neglected pay till date despite repeated demands.
(ii) Interest at 30% per annum of the said sum Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) only from December, 2014 till the date of judgment in this matter.
(iii) 10% judgment interest on the said sum of Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira (N14,703,750.00) only until the liquidation of the entire judgment sum.”

Counsel contended that the contract, the subject matter of the action was contracted and completely executed in Akure, Ondo State at the Respondent’s office at Ado/Owo Road, Alagbaka Area, Akure, Ondo State.
That the Respondent averred in paragraphs 4, 5, 6, 7, 13 and 14 of the statement of Claim as follows:-
“Para. 4 “On 16th December, 2014, the Defendant, via a short message service (SMS) from his GSM Telephone Number 08030625512 contacted the Claimant’s Akure Sales Manager (Mr. Saliu Abdul-Jelili Adetunji on the letters mobile telephone number 08032030490 requesting for the supply of MTN Recharge Cards in the following stocks on credit as the practice was
a. N100 Voucher – 40,000 pieces
b. N200 Voucher – 1000 pieces
c. N400 Voucher – 2000 pieces
d. N750 Voucher – 3000 pieces

The Claimant shall rely on the print out of the said SMS at the hearing of the suit.”
Paras. 5 “The Claimant avers that the standard practice in selling cards on credit to customer was recoup previous exposure to a customer before releasing new ones to the customer.”
Para. 6 “On 17/12/14, in furtherance of the request mentioned above the Defendant visited the office of the Claimant in Akure for the purpose of collecting the stocks Recharge Cards and to qualify for the round of credit sale, the Defendant had presented three money transfer slip on the account of Mormide Integrated Invest. Ltd allegedly used for the settlement of outstanding credit exposed to the Defendant by the Claimant. The transfer slips are hereby pleaded and shall be relied upon at the trial.”
Para. 7 “The claimant avers that due to trust, the staff of the claimant who attended to the defendant on the 17/12/14 did not verify if the money allegedly transferred by the defendant on 16/12/14 had gotten into the account designated for the payment before releasing the stock requested for by the defendant.”
Para, 12 “The claimant avers that on 23/12/14, via a sms, the defendant informed her sales manager that she would visit the claimant office in Akure the next day for another stock of MTN Recharge Cards. The claimant shall also rely on the said sms at the hearing of the suit.”

Para. 13 “As indicated, the defendant came to the claimant’s office in Akure on 24/12/14 to collect another stock of products totaling Six Million, Eight Thousand Naira (N6,080,000.00) only as per the distributorship price.”

Learned counsel contended that it is therefore settled from the above averments of the Statement of claim as produced in the written deposition of the second claimant’s witness – Mr. Saliu Abdul Jelili Adetunji and the sixth claimant’s witness – Olowu Olusegun Solomon (See Pages 164-167 and 273-280 of the Record of Appeal) that the contract, the subject matter of the action and the Appeal took place wholly in Akure, Ondo State.

That Respondent is a juristic legal entity which has its Corporate Office at Ado/Owo Road, Alagbaka Area, Akure, Ondo State. See Pages 2 and 3 of the Record of Appeal and paragraph 1 of the statement of claim.

At page 166 lines 7-8 of the Record of Appeal, second claimant’s witness (CW2) at the trial Court testified thus;
“My Company Demmy Global Resources Ltd is situate as a registered company in Akure, Ondo state.”
Second claimant witness (CW2) further testified at page 166 of the Record of Appeal thus;
“I also stated that the defendant also traded in Akure since 2014. He does not have an office in Akure but operated mobilely.”
“The approved distributor of MTN Recharge Cards in Ekiti State is now Royal serve the same with the distributor on (sic) 17/11/14.”
At page 167 of the Record of Appeal, CW2 testified thus;
“I know the defendant Falusi Olumide Henry. We wrote Iju on the top of the G.T.N (sic) (distributor) as Iju because of the covenant that the defendant will not sell the goods outside Ondo state. The G.T.N was prepared by our inventory manager.”
At pages 277 and 279 of the Record of Appeal, the sixth claimant’s witness testified thus;
“Royal serve is a trade partner of MTN in Ado-Ekiti. It is approved dealer of MTN in Ekiti State.”
“The claimant is an approved dealer in Ondo State.”
“Royal serve is not allowed to sell MTN in Ondo State by agreement”.

“Demmy Global is also not allowed to sell MTN in Ekiti state by agreement.”
“The destination of the goods Exhibit D1 is Iju. The reason why Iju was written there is what Olumide Falusi told us he has customer in every part of Ondo State and mainly at Iju Local Government, he knows that MTN Recharge Cards most not be sold outside(sic) state”.
“This is why his name will be written on it. I know that MTN is not to be sold in Ado-Ekiti by Olumide but he told us that he was to sell it in Ondo state, particularly at Iju.”
From the above piece of evidence, it is trite that;
a) The contract between the parties, which is the subject matter of this Appeal took place wholly in Akure, Ondo state.
b) The contract was to be executed/performed by the Appellant in Ondo state, particularly, Iju Local Government Area, Ondo state.
c) Respondent has its corporate Office at Akure, Ondo state, where she does her business.

d) Appellant has his business place at Iju Local Government Council, Ondo State. However, Appellant engages also in selling his products by mobile means within Ondo State. The High Court of Justice, Ekiti State has no jurisdiction to decide the suit. Therefore, the learned trial judge erred in law when he assumed jurisdiction and decided the suit to finality. Counsel urged this Court to so hold.
See THEOBROS AUTO-LINK NIGERIA LTD V BAKEY INTERNATIONAL AUTO ENGINEERING CO. (2013) 2 NWLR (Pt 1338) P. 337 at 352 Para C-E; PATIL V FRN (2016) 8 NWLR (PT 1515) 483; ADESOLA V ABIDOYE (1999) 14 NWLR (PT637) 28

Learned counsel further contended that, it is trite that a party cannot on his/her own act, confer jurisdiction on the Court. The Court also cannot confer jurisdiction on itself nor can it waive it. Parties cannot also confer jurisdiction on the Court. Court’s jurisdictions are vested by the statute and the constitution. See the cases of:-
a) MAINSTREET BANK CAPITAL LTD V NIG. RE (2018) 14 NWLR (Pt 1640) P. 423 at 454-455 Paras H-A and
b) OKE V OKE (2006) 17 NWLR (Pt 1008) P. 224 at 239.

Counsel submitted that the enabling statute in this regard is Order 2 Rule (3) of the Ekiti State High Court (Civil Procedure) Rules, 2011. He urged this Court to resolve lssue 1 in favour of the Appellant.

Mrs Genevieve Okoye Respondent’s counsel in her reply submitted that, Appellant’s Counsel has urged in his brief that the learned trial judge lacks the territorial jurisdiction to hear this matter, an issue that will be addressed shortly. She contended that it is important to state at this juncture that the argument of learned Appellant’s Counsel in paragraphs 5:05 and 5:07 of his brief that the Writ is defective because of the mention of ‘Akure’ therein is a non-starter and should be discountenanced for these reasons:
1. That the argument as regards the defect in the Writ was not mentioned in the notice of appeal either as aground of appeal or particulars thereof. There is no gainsaying the fact that arguments in a Brief should be based on issues raised must find its root on at least a ground of appeal.
2. The Appellant’s grounds of appeal are based on territorial jurisdiction.
3. At the trial Court the Appellant had raised the issue of jurisdiction solely on the ground that the “writ of summons was defective and incompetent in view of the gap/break in the pagination”.

This can be seen on page 1 of the additional records of appeal.
4. The affidavit in support of that Application was signed by the Appellant in person and all the reason stated by the Appellant for bringing the Application was stated in paragraphs 5-6 of the said affidavit. In paragraph 5(c) and (e) the Appellant stated thus:
”c) That the writ of summons does not conform with the writ of summons as provided by the Rules of this Honorable Court in that it was not filed page to page…
e) That the said writ of summons has gap/break in the pagination and it is therefore a complete departure from the Rules of this Honorable Court.”
This can be seen on page 4, lines 1-7 of the additional record of appeal.
5. The Applicant was never in doubt as to the Registry within which to enter appearance notwithstanding the mistake on the writ of summons. Thus, no harm or injustice was occasioned on the Appellant.
6. The Appellant entered appearance, filed his Statement of Defense and called evidence, and was never misled and/or confused as to the judicial Division within which to enter his appearance or file his pleadings. He went through the whole hog of trial at the Court below.

The issue of defective writ of summons as regards the judicial division to enter appearance was brought into argument for the first time through the Appellant’s Brief of Argument in this appeal Court.Admittedly, issue of jurisdiction can be raised at any time, however, parties are not allowed to raise their objections in piecemeal. See Fidelitals Shipping Co Ltd. V. VIO Exportchleb (1966) 1QB 630; McKenny v. Chief Constable of the West Midlands & Anor. (1980) 2 WLR 689. Learned counsel contended that the Appellant cannot argue that the writ was filed ‘page to page’ and that it contains ‘gaps in the pagination’ at the Court and now make an entire new argument in this Court, which does not even form part of the grounds of appeal. He urged this Court to discountenance the said submission of learned counsel. The maxim is that “he who comes to equity must come with clean hands.” At the risk of repetition, it is clear as day that the Appellant was never misled as to the judicial Division to enter his appearance or file his pleadings and did not suffer any harm as a result of

the Respondent’s Counsel’s mistake. The Appellant’s only query to the writ was that the writ contains “gap/break in the pagination.” The Appellant went through whole hog of trial at the Court below, filed his written address and judgment was delivered. He therefore submitted, that the said defect in the writ of summons does not render the writ of summons incompetent in that the Appellant had responded to the summons adequately at the Court below and was not misled in anyway.

Counsel contended that Asking the Court to jettison the entire proceeding will amount to undue technicality. In that it is trite that technicality should not be allowed to hinder justice. See NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT 212) 652 @ 676. Moreover, arguments that cannot be tied to any issue for determination and ground(s) of appeal ought to be discountenanced. Counsel urged this Court to so hold.

As earlier stated, the Appellant’s Counsel has strenuously argued that the trial Court lacked jurisdiction since the subject matter of the contract was to be executed in Ondo State. Learned counsel submitted that the argument is bereft of substance and he urged this Court to discountenance same. He contended that it is elementary that where a defendant resides is one of the factors that bestows territorial jurisdiction on a Court. See the case of OKAFOR V. EZENWA(2002) NWLR (PART 784) 319 at 335. As well as Order 2 Rule 3 of the Rules of the lower trial Court (High Court of Ekiti State, Civil Procedure Rules, 2011) which provides thus:
“all suits for specific performance, or upon the breach of any contract, Shall be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides or carries on business.”

Happily enough, the learned counsel to the Appellant acknowledged this bit in paragraph 5.17 of his brief. It was not in dispute that the Appellant resides in Ekiti State. This single fact confers jurisdiction on the Honorable trial Court to entertain this matter. The Appellant himself, stated in paragraph 2 of his witness statement on Oath at page 192 of the main Record of appeal that he resides at Ekiti State. The said paragraph provides thus:

“that I resides (sic) at Road Number 4, Opposite TOS Filling Station, Olara Layout, Oke-Ila/housing Road, Ado-Ekiti, Ekiti State.”
Counsel submitted that the case of THEOBROS AUTO LINK NIGERIA LTD V. BAKELY INTERNATIONAL AUTO ENGINEERING CO. (2013) 2 NWLR (PT.1338) Pg. 337 at 350-351 Paras. G-A cited by the learned counsel for the Appellant is self defeating and wholly supports the respondent’s cause. Order 10 Rule 3 Akwa Ibom State High Court (Civil Procedure) Rules, 1989 interpreted in that case is similar to Order 2 Rule 3 of the lower Court’s Procedure Rules.

Learned counsel upon the background of the foregoing, submitted that the learned trial judge was right when he held that he had the territorial jurisdiction to hear the appeal. He urged this Court to so hold.

On behalf of Appellant, counsel referred to Appellant’s averment in paragraphs 5, 6, 10, 11, 12, 13, 14, 15, 16, 21, 22, 24, 26 and 30 of the amended Statement of defense as follows:-
Para 5: Claimant deals in the supply, sales and distribution of Recharge Cards namely Mobile

Telecommunication of Nigeria (MTN), GLO, AIRTEL, ETISALAT Cards as the approved dealer who is restricted and limited to Ondo State, Nigeria, only, with branches in almost all the Local Government Area in Ondo State including “IJU” Akure North Local Government Area, Ondo State. Digital print (picture) of the claimant’s office at Iju, Akure, North Local government Area, Ondo State, taken by the defendant with his Android Mobile Phone is herewith pleaded and will be relied upon at the trial.
Para 6: Claimant also deals in the supply, sales and distribution of SIM Cards of all network providers but he is also restricted and limited to Ondo State, Nigeria, only.
Para 10: Defendant further avers that contrary to the dealership approval granted to the claimant to sell, supply and distribute MTN Recharge Cards only in Ondo State, Claimant Approached him through her Akure Sales Manager – Mr. Saliu Abdul-Jelili Adetunji to assist Claimant to sell and distribute MTN Recharge Cards in Ekiti State.
Para 11: Towards this end, the said Mr. Saliu Abdul-Jelili Adetunji offered defendant credit sales of MTN Recharge Cards, which offer defendant keyed into.

Para 12: Defendant further avers that he agreed with the said Mr. Saliu Abdul-Jelili Adetunji that the Claimant shall supply, sales and distribute MTN Recharge Cards to him in Akure, Ondo State, for sale in Ekiti State in the defendant’s personal names and with the defendant personally signing each placement/order for supply of MTN Cards on credit sales.
Para 13: Defendant further avers that as a result of the void nature and illegality of this transaction, the supply of MTN Recharge Cards to the defendant by the claimant for sales in Ekiti State were to be done periodically and rarely on the roads are clear and when the MTN approved dealer in Ekiti state will not know so that the MTN approved dealer in Ekiti State will lay a complaint against claimant to MTN Head office of unethical behavior. The names of the approved MTN dealer for Ekiti State is ROYAL SERVE WIRELESS LIMITED.
Para 14: Defendant further avers that because of the illegality, risk involved and the secrecy involved in the MTN Recharge Cards transaction between the parties thereto, defendant took personal delivery of all credit sales of MTN Recharge Cards sold to him at all time material either from the Claimant’s office in Akure, Ondo State or at the border between Ekiti State and Ondo State and the invoice(s) were always in the defendant’s personal names and he usually signed the invoice personally.

Para 15: Defendant further avers that even where the MTN Recharge Cards were delivered to the defendant at the border town between Ekiti State and Ondo State by the claimant’s members of staff, the sales invoice(s) were always in Claimant’s in personal names which he always signed for personally. Copies of the previous invoices and receipts in respect of the previous transactions are herewith pleaded and shall be relied upon at the trial.
Para 16: Defendant avers that on 5th November, 2014, claimant through the said Mr. saliu Abdul-Jelili Adetunji supplied and delivered MTN Recharge Cards to him on credit saleto him their Akure Office, Ondo State for sales and distribution in Ekiti State within three(3) days and for the proceed to be remitted within three(3) days which defendant fulfilled.
Para 21: Defendant most vehemently denies paying MTN Recharge Cards on credit sales from the Claimant on 17th December, 2014 and 24th December, 2014 respectively is hereby pleaded.

Para 22: Defendant further avers in respect of the two receipts/invoices of 17th December, 2014 and 24th December, 2014 as follows:-
a) That both receipts smacks of fraud and fraudulent practices.
b) That both receipts have “Iju” as their destinations contrary to “Olumide” which were hitherto written on all previous purchases and supplies made by the defendant.
c) That the receipt/invoice of 24th December, 2014 shows that the receiver signed for the goods on 23rd December, 2012 as against 24th December, 2014 when the goods/MTN Recharge Cards were purportedly supplied.
d) That the said two receipts are clear cases of criminal diversion and conversion by the claimant’s staff.
Para 24: Defendant shall further contend at the trial that the MTN approved dealer in Ekiti State got wind and information that it was avers that he was patronizing the claimant in Akure, Ondo State and that he was selling the goods in Ekiti State.
Para 26: Defendant further avers that it was as a result of the aforesaid verifiable facts that he stopped patronizing the Claimant.
Para 30: Defendant’s team of lawyer’s wrote petition of the Commissioner of Police, Ondo State also in respect of the subject matter of this suit office. Copies of the said letters are hereby pleaded and will be relied upon at the trial.”

Counsel Further commended paragraphs 4, 5, 6, 7, 9, 10, 12, 15, 16, 19, 20, 21, 22 (a) (b) (c) (d), 23, 26, 27, 28 and 29 of the written statement on Oath of the Appellants’ sole witness. See pages 192 – 197 of the Record of Appeal.
That, CW2 testified thus;
I know the defendant Falusi Olumide Henry we wrote Iju on the top of the G.T.N(SIC) (Distributor) as Iju because of covenant that the defendant will not sell the goods outside(sic) State”. Refer to page 167 of the Record of Appeal.
Further, CW6 testified under cross-examination thus;
“The issue between the claimant and the defendant arose from the issue of MTN and other network. Royal service is a trade partner of MTN in ADO-EKITI. It is approved dealer of MTN in EKITI State. The claimant is an approved dealer of MTN in ONDO State. Royal serve is not allowed to sell MTN in ONDO state by agreement. Demmy Global is also not allowed to sell MTN in EKITI state by agreement.” Refer to page 277 of the Record of Appeal.

At page 287 of the Record of Appeal, DW1 testified thus;
“I have never been involved in illegal activity all my life except the transaction of MTN Recharge Cards between me and not (sic) Mr. Saliu Abdul-Jelili Adetunji CW2, a staff of Demmy Global.”

Counsel submitted that from the state of the pleadings of the parties and the evidence on record of the Court, that it was an illegal contract for the Respondent to sell MTN Recharge Cards into Ekiti State by agreement, yet the Respondent gave credit facility to the Appellant to enable him to sell MTN Recharge Cards into Ekiti State contrary to and in violation of the existing agreement between the Respondent, Royal Serve Nigeria Limited and Mobile Tele-communication Nigeria (MTN).

It was therefore forbidden for the Respondent to sell MTN Recharge Cards into Ekiti state as she had done through the Appellant in this appeal.
See OLOWU V BUILDING STOCK LTD (2008) 1 NWLR (Pt 1601) P. 343.

Counsel contended that just like the Court’s decision in SODIPO V LEMMINKAINEN Supra, Appellant raised the issue of illegality in his pleadings and evidence on record.
The law is trite that a party cannot be permitted to benefit from his own wrong or default. See the cases of:
a) VINZ INT’L (NIG) LTD V MOROHUNDIYA (2009) 11 NWLR (Pt 1153) P. 562 at 579 Para C – D,
b) FIRST BANK OF NIGERIA PLC V MAY MEDICAL CLINICS (1996) 9 NWLR (Pt 471) P. 195
c) ADEDEJI V NATIONAL BANK OF NIGERIA LIMITED (1989) 1 NWLR (Pt 96) P. 212 and
d) SOLANKE V ABED (1962) 1 SCNLR P. 371.

Counsel submitted that Respondent is aware of the illegality of selling MTN Recharge Cards to EKITI State and cannot benefit from that illegality.
He cited case of HUEBANER V A.I.E & P.M CO. LTD (2017) 14 NWLR (Pt 1586) P. 397 at 440-441 Paras G-A where the Court held thus;
“A Court should not enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal….”

Learned counsel urged this Court to resolve issue two (2) in favor of the Appellant.

On Issue 2, Respondent’s counsel contended that the Appellant’s assertion under issue two of his brief that the contract between the appellant and Respondent is “illegal” is out of pocket and ridiculous, with due respect, out of the whims of logical reasoning. It is absolutely unthinkable that the Appellant would even consider towing this line of argument seeing as it is needlessly deceitful and a desperate attempt to mislead this Honorable Court. First nonetheless, it is pertinent to resolve the question of “what constitutes an illegal contract? The eight edition of the Black’s Law Dictionary defines an illegal contract in page. 345 as “a promise that is prohibited because the performance, formation, or object of the agreement is against the law”. Contracts are illegal if the performance or formation of the agreement will cause the parties to engage in any activity that is illegal; there is no indication of this by the Appellant neither can any such indication be gleaned from the evidence before the trial Court.
In PAN BISBILDER LIMITED V. FIRST BANK LIMITED (2000) FWLR PT 2 pg 177 @ 188, “illegal contract” was described in the following words:

“…it will be enough to say that the contracts which are prohibited by statute or common law, coupled with provisions for the sanction (such as fine of imprisonment) in the event of its contravention are said to be illegal.’’
See also WEST CONSTRUCTION COMPANY LTD. V. BATALHA (2006) ALL FWLR PT 315, pg. 1 @ 16 Para D; KACHIA V. HADI (2012) ALL FWLR PT 650 pg. 1417, paras G-H.

Learned counsel contended that, the Appellant was not coerced into agreement, there was no iota of illegality in the terms nor was there any false representation made by the respondent herein. There is no aspect of the dealings of the parties that has contradicted any known laws in this country be it of man or God.

At the risk of entertaining arcane arguments, the appellant claimed in paragraph 6.08 of his brief that “it was forbidden for the Respondent to sell MTN Recharge Cards into Ekiti State as she had done through the Appellant in this appeal”, a comment that could not possibly be more out of place. The appellant is not and was not in the employment of the respondent in any capacity and not in the least as a distributor as insinuated by the learned counsel for the

appellant. It was a basic buyer-seller relationship so nobody was attempting to sell anything “through“ anybody; the respondent only sold the Recharge Cards to the Appellant within his jurisdiction albeit on credit due to the trust that emanated from their business relationship, a trust the appellant eventually betrayed.

Admittedly, under the MTN business policy, each distributor is expected to restrict sales of recharge cards to designated location, which the Respondent did comply with. All the MTN recharge cards were sold to the Appellant in the Akure office of the Respondent. Moreover, from evidence adduced, the respondent never had any arrangement with the Appellant to sell MTN Recharge Cards outside Ondo State, either for him or otherwise; this explains why the respondent made the habit of indicating the dispatch destination for the MTN recharge cards with is Iju (a town in the northern part of Ondo state). The MTN policy under which the Appellant is now trying so arduously to hide in futility is not a known law in the Federal Republic of Nigeria. Thus, assuming without conceding that there was any contravention of the said MTN policy by

the Respondent, nonetheless, it cannot amount to illegality, by virtue of the fact that MTN policy is not statute or common law. All the authorities cited by learned counsel are inapposite.

Counsel contended that, it does not lie with the Appellant to carp about any such contravention. If any, the right of complaint resides with the MTN Royal service (the approved dealer in the Ekiti State) and/or MTN Nigeria Ltd, not on the Appellant. He further submitted, that the Appellant cannot run under the guise of illegality and refuse to pay the MTN recharge cards sold to him on credit as that would be absurd and far from the dictate of justice in this matter.

Counsel assumed without any iota of concession that the contract had any illegal ingredient, the Appellant having obtained goods worth over 14 million naira, sold same as could easily be seen in his Statement of Account (exhibits P&P1) cannot and should not be heard crying foul of illegality having benefitted handsomely from the contract. He submitted that, this Appellant’s claim rings of nothing but cunning selfishness, and unfairness.

And that, the learned trial judge rightly held that the Appellant who benefited from a contract cannot turn around and claim illegality. It is rather ridiculous for the Appellant to hold over the sum of Fourteen Million Naira stock of MTN Recharge Cards sold to him by the Respondent and claim illegality, an obnoxious blatant attempt to derail the course of justice.

Counsel submitted that without any speck of doubt, the Respondent in this matter succeeded in establishing her case on the preponderance of evidence. Therefore what is called for resolution in this case falls within a narrow prism. It has been established by the lower Court that the Appellant is indebted to the respondent to the tune of N14,703,750.00, a fact not refuted by the Appellant or discountenanced by any credible evidence.

The case of the Respondent is that on the 10th day of December, 2014 she sold to the Appellant, MTN recharge Cards Worth Five Million Four Hundred and Ninety One Thousand, Two Hundred and Fifty Naira (N5,491,250.00). In an attempt to pay for that round of Recharge Cards sold to the Appellant, the Appellant presented amongst other transfer slips a purported transfer slip of N1,950,000.00 which was not actually paid into the Respondent’s account. The said sum having been reversed back into the Appellant’s account. Similarly, on the 17th December, 2014 and 24th December, 2014, the Appellant approached the Respondent’s staff for supply of MTN Recharge Cards worth a total of N6,673,750.00 and subsequently MTN Recharge Card worth N6,080,000.00 after the Appellant misrepresented to the Respondent’s staff that he had defrayed his earlier indebtedness.

As discernible from the pleading in this case, Respondent supplied the said MTN recharge cards to the Appellant, but the Appellant failed and or refused to pay for the recharge cards and that of the payment slip which was reversed back to the Appellant’s account. The sum of which amounted to the claim of the Respondent’s under her relief one (N14,703,750.00). Paragraphs 8, 9, 13, 15 and 21 of the statement of claim at pages 4, 5 and 6 of the main record of appeal are instructive in this regards. This answers the insinuation of speculation posed by the learned counsel for the Appellant in paragraph 9.05 of his Appellant Brief. There is no speculation on the part of the trial as erroneously canvassed by the Appellant’s counsel and counsel urged this Court to so hold.

Thus, the simple onus on the Respondent is to establish in this case that there were two different transactions between her and the Appellant on 17th and 24th December, 2014 of the sales of MTN Recharge Cards and that there was actually a reversal of the sum N1,950,000.00 which the Appellant is yet to defray. Furthermore, that the transaction and contract was not illegal as claimed by the Appellant after he has handsomely benefited from if by selfishly keeping both the capital and profit of the MTN recharge cards to himself.

Counsel submitted that the case of the Respondent has been cogently proved and established beyond peradventure going by the oral and documentary evidence on record in this case and this would seen anon.

The Respondent called six witness as CW1 to CW6 in proof of her case and tendered documentary evidence in proof of her case. CW3 to CW5 were subpoenaed solely to tender documents in their possession.

CW2 (the Respondent’s sales manager) testified that due to the trust that the Respondent had built on the Appellant became one of the customers the Respondent was exposing credit sales to in respect of MTN recharge cards. He further testified that on 16th December, 2014, the Appellant via a Short message service (SMS) from his GSM telephone Number 08030625512 contacted him (Mr. saliu Abdul-Jelili Adetunji) on his mobile telephone number 08032030490 requesting for the supply of MTN recharge cards.

He further testified that on 17/12/14, in furtherance of the request mentioned above, the Appellant visited the office of the Respondent in Akure for the purpose of collecting the stocks of recharge cards and qualify for the round of credit sales. The Appellant presented three money transfer slips on the account of Mormide Integrated invest. Ltd. Allegedly used for the settlement of outstanding credit exposed to the Appellant by the Respondent. The said transfer slips were admitted in evidence as Exhibit M-M2.

CW2, continued in his testimony that the total value of MTN Recharge Cards collected by the Appellant on the 17/12/2014 was Six Million Six Hundred and Seventy Three Thousand, Seven Hundred and Fifty Naira (N6,673,750.00), as per the distributorship price of the

products. This is crystal clear from the Respondent’s Goods Transfer Note dated 17/12/2014 endorsed by the Appellant in acknowledgment of the supplied cards which were admitted in evidence and marked as Exhibit D & D1 which are same as Exhibit L and Q.

CW1 further that the Respondent’s Audit Department vetted the three transfer notes brought by the Appellant, and it was discovered that a sum of One Million, Nine Hundred and Fifty Thousand Naira (N1,950,000) being the amount of one of the money transfer slip, was not seen as lodged into the account of Covenant Blessing Integrated System Limited, a sister company of Respondent, that is Exhibit F.

CW1 said that he telephoned the Appellant to intimate the Appellant about the said discovery, only for the Appellant to confirm that the said sum was reversed back into his account and promised to ensure the money was transferred before his next visit to the Respondent’s office.

Still on the transaction of 17/12/2014, Mr. Olowu O. Solomon’s (who is the Respondent’s Inventory Manager) CW6’s evidence corroborated that of CW2 when he testified in paragraph 6-10 of his written deposition at page 15 of the main record of appeal as follows:

“6. On 17/12/2014, the Defendant visited the office of the Claimant in Akure for the purpose of collecting the stock of recharge cards and to qualify for that round of credit sale, the Defendant had presented three money transfer slips on the account of Mormide Integrated Invest Ltd., allegedly used for the settlement of outstanding credit exposed to the Defendant by the Claimant. I hereby plead and shall rely upon the said transfer slips at the hearing of this suit.
7. Due to trust, on that 17/12/2014, I did not verify if the moneys allegedly transferred by the Defendant on 16/12/14 had gotten into the account designated for the payment before releasing the stock requested for by the Defendant.
8. The total value of MTN Recharge Cards collected on credit by the Defendant on the 17/12/2014 with the understanding that the Defendant would make payment two or three days thereafter was Six Million, Six Hundred and seventy three Thousand Seven Hundred and Fifty naira (N6,673,750.00) as per distributorship price of the products. I hereby rely on the Claimant’s Goods Transfer Note dated 17/12/2014 endorsed by the Defendant in acknowledgment of the supplied cards.

When eventually I sent the three transfer slips brought by the Appellant on the 17/12/2014 to the Respondent’s Audit Department for vetting, it was discovered that a sum of One Million, Nine Hundred and Fifty Thousand Naira (N1,950,000.00) being the amount on one of the money transfer slip, was not seen lodged into account of Covenant Blessing Integrated System Ltd., a sister company of the Claimant.
10. That I thereupon informed the sales Manager of the Claimant to intimate him of the said discovery. In my presence, the sales manager immediately called the Defendant to confirm that the said sum was reversed back into his account and promised to ensure the money was transferred before his next visit to the Claimant’s office.”

CW2 further testified that on 19/12/2014, he sent a direct bank account of the Respondent to the Appellant for the Appellant to pay in sum of N1,950,000.00 which the Appellant said was reversed back into his account as well as the other outstanding sum of N6,673,750.00 due on the products supplied on

17/12/2014 to the Respondent, rather than make the payment into the account of the Respondent’s sister company as had always been, the practice. This is expressly shown in Exhibit B and C (the SMS between CW2 and the Defendant on 19 Dec., 2014) page 20 of the record.

CW6 testified that on 24th December, 2014, the Appellant came and purchased on credit MTN stock worth N6,080,000.00, which he personally issue to the Appellant via D1 or L after the Appellant had hold him that he had given the tellers for the payments of the previous stock sold to him to CW 2. CW 6 testified that he tried to confirm from CW2 but CW2’s mobile phone was not reachable at the moment.

As a matter of fact, CW 6’s testimony corroborated the testimony of CW 2, without any modicum of contradiction. Counsel drew the attention of the Court to CW6’s written deposition dated 14th day of April 2016 paragraph 12-16 were he testified thus:
“12. The Defendant told me on that 24/12/2014 that he had given the transfer slip evidencing payments of outstanding indebtedness on the stock of N6,673,750.00 issued to him on 17/12/ 2014 as well as the

N1,950,000.00 which was said to have been previously reversed back to the Defendant’s account to the Sales Manager.
13. Again based on the business relationship and the resultant trust, l obliged the Defendant with the recharge cards to the tune of Six Million, Eighty Thousand Naira (N6,080,000) on credit and the Defendant left.
14. I thereafter approached the Sales Manager for the transfer slips which the Defendant had alleged that (the Defendant) gave to him, to my surprise, the Sales Manager was astonished and stated that the Defendant did not transfer any transfer slip to him.
15. As a result of the foregoing, the Sales Manager immediately called the Defendant but the Defendant initially refused/failed to pick up the calls and when he eventually did, the Defendant admitted that the money had not been paid and promised to make payment while apologizing to him (the sales Manager).
16. The Defendant did not show up at the Claimants office as promised and subsequently failed/refused to either answer the calls of the sales manager or pay the total sum Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty naira (N14,703,750.00) owed or any part thereof till date.”

As could be easily seen from the foregoing, CW6 testified that upon the return of CW1, he approached CW1 for the transfer slip which the Appellant had alleged that the (Appellant) gave him (CW1), but to his astonishment, CW1 stated that the Appellant did not deliver any transfer slip to him.

CW 2 testified that he immediately called the Appellant but the Appellant initially refused/failed to pick up his calls and when he eventually did, the Appellant admitted that the money had not been paid and promised to make the payment while apologizing to him. CW1 thereafter persistently called the Appellant to find out if payment had been made but the Appellant only sent him a SMS as follow on 29/12/2014 “in the church programme but have done it”. (Page 22 of the main record of appeal) CW1 promptly responded as follow: ”Pls what of the formal tellers” to which the Appellant replied thus: “ we shall see by Wednesday sir, thanks.” (Page 22 of the main record of appeal). Upon the receipt of the Appellant’s reply, CW1 said that he immediately responded thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Sir no no if (Sic) want me to come I will pls (Sic) everybody in my office are on my neck pls I must produce those teller tomorrow morning I beg I beg (Sic).” (Page 22 of the main record of appeal)

All the SMS in hard copies were relied upon by CW1, which were admitted in evidence and marked as Exhibit B, and the soft copy of the said text messages in CW 2’s handset which was use for the communication was admitted as Exhibit C.

CW2’s evidence on the content of Exhibits B and C was further strengthened during cross examination when he stated at page 169 lines 1 to 5 as follow:
“Exhibit B shows that I made report (Sic: request) for the evidence of the formal payment. That he said he has done it and when I requested for the teller he said we shall see on Wednesday. The said conversation took place on 29th/12/14 when I returned from my travelling (Sic).

Further, it is noteworthy that Exhibit C was admitted without objection. CW2 was not cross examined content of the raw data thereof, which the Appellant had earlier denied its existence. CW2, was not cross examined on his evidence, that on the 19th December,

2014 he sent a direct Bank Account of the Respondent to the Appellant, for the Appellant to make required payments rather than pay into sister account of the Respondent. It is settle law, where a piece of evidence given by witness is not challenged or contradicted under cross-examination, such a piece of evidence is deemed admitted and acted upon by the Court accordingly. See OBEMBE V. WEMABOD ESTATE LTD. (1977) 5 SC 115 at 140; OGUMA V. IBWA (1988) 3 SCNJ (PT. 1) 13 AT 33-34; OFORLETE V. STATE (2000) FWLR (PT. 12) 2081 at 2098-2099.

Counsel contended furthermore, that the evidence of the Appellant in paragraph 32 of his written deposition (page 196 of the main record) that he sends messages to confirm if the Respondent had all MTN Recharge Cards which he needs at the material time is an admission against interest on the part of the Appellant as it goes to show that the Appellant has unwittingly acknowledged that he sends SMS to the Respondent’s sales manager to make them aware of the quantity of MTN Recharge Cards he would like to buy if available. This explains the reason for SMS of 16th December, 2014 and 23rd December, 2014. It is well

settled in law that admission against interest is weighty and strengthens the case of the party in whose favor is the admission, i.e. the Respondent in this case. See the case of ADEYEYE V. AJIBOYE (1987) 1 SCNJ 1 at 13; SANYA V. SAUMAM (2012) ALL FWLR (PT 618) 917 at 941 and FAGUNWA V. ADIBI (2004) ALL FWLR (PT.226) 340 at 357, para. H to the effect than an admission against the interest of the party admitting it is a solemn admission in favor of, and adds to the prosperity of the case of the other party.

The quantity of the recharge cards in the said Exhibit D and D1 (L and Q) is exactly the same with the quantity the Appellant sent to the CW1, through the SMS on the 16th and 23rd December, 2014 via Exhibit A, B and C.

What is more, the serial numbers of the recharge cards as contained in Exhibit D and D1 tallies with the serial numbers on the recharge cards (Exhibit H) found with the Appellant when he was arrested at Abeokuta by the policemen. These serial numbers were spelt out by the Appellant during cross examination.

Counsel submitted that the text messages sent by the Appellant to CW2 on the 16th day of December as regards the

particulars of MTN recharge cards, he wants to purchase on Exhibit reads thus: “MTN 100-40,000,200-10,000, 400-2000, 750-300”. This was exactly what the Appellant was issued via Exhibit D (same as Exhibit Q) by the Respondent. CW6, testified as could be seen in paragraphs 25 and 26 of his statement on oath in rebuttal (pages 172 of the main record of appeal) that when it became obvious to the Respondent that the Appellant has absconded and was selfishly bent on not paying for the MTN stocks issued to him, the Respondent reported the Appellant to SARS who took appropriate steps and arrested the Appellant. When the Appellant was arrested some of the recharge cards i.e. Exhibit H (at page 148 of record of appeal) sold to him via Exhibit Do or Q was recovered from him. Some of the serial numbers of recharge cards recovered from the Appellant upon his arrest corresponds with the serial numbers of the recharge cards sold to the Appellant on the face of Exhibit D or Q. This was confirmed by the Appellant during cross examination. At pages 288 to 289 of the main record of Appeal.

On the standpoint of this scenario, on the basis of the oral testimony of

CW1 and CW6 and Exhibit A, B, C alone, there is sufficient cause for the trial Court to hold that indeed there was in existence transactions of 17th December, 2014 and 24th December, 2014, for which the Appellant is indebted to the Respondent.

Apart from the oral testimonies of CW1 and CW2, there is also ample evidence to show that the sum of N1,950,000.00 was reversed back into the account of the Appellant via the statement of the account of the Appellant with Sterling Bank (Exhibit J). The Appellant himself admitted the reversal of the said sum into his account during his cross examination when he was confronted with an erstwhile written statement on Oath Exhibit Z11, and with his statements of account at last, two lines of page 286 to first five lines page 287.

The Respondent’s witness gave largely unchallenged and absolute credible evidence in this case. None of them could be discredited under cross examination. There is also an unmistaken synergy in the witness and the Respondent, that had made the case of the Respondent to be cogent, compelling and unmatched by the Appellant. In the circumstances, there is every justification for the trial

Court to find that the Respondent supplied MTN Recharge Cards to the Appellant on the 17th and 24th December, 2014 through the CW6, and there was actually a reversal of sum of N1,950,000.00, which the Appellant has not paid for. The power of this Honorable Court to draw such inference is judicially established. See: EDOKPOLO & CO. LTD. V. OHENHEN (1994) 7 NWLR (PT. 357) 511 AT 529; OSUAGWU V. THE STATE (2013) ALL NWLR (PT. 673) 1625 at 1626.

The position of the learned counsel for the Appellant in paragraph 2:19 of his brief that the reversed sum N1,950,000.00 was paid in cash is an afterthought and was not pleaded, nor supported by the evidence before this Honorable Court. It is elementary that counsel’s address cannot take the place of evidence not adduced. See ODUBEKO V. FOWLER (1993) 9 SCNJ 185 at 195-196. He urged this Court to discountenance same.

CW3, CW4, and CW5 were only subpoenaed to produce documents which CW1 and CW6 relied on during the trial of the case. Counsel submitted that counsel’s argument in paragraph7:02 to 7:09 of this brief of argument to the effect that the exhibits were dumped on this Court is with due

respect misplaced and grossly misleading. The Exhibits were not dumped on the Court as CW6 spoke to the document and gave cogent evidence as to what each of the documents (Exhibit F, H, I, M, N, P, P1, Q, S and S2 relate to and also stated the purposes they were meant to serve in his evidence-in-chief. As a matter of fact, after the documents were produced by the subpoenaed witness, CW6 as the last witness identified each of the documents as the document he referred to in his deposition in addition, the subpoenaed witnesses need not testify on the content of the document because the document speaks for themselves. (See IKEMEFUNA & ORS. V. ILONDIOR & ORS (2018) LPELR-44840(CA) Page 18 D-E; OZOMARO & ORS V. OZOMARO & ANOR. (2014) LPELR-22663(CA) @ 44C-D). Further, it is trite that a witness on subpoena is required to give a particular form of evidence; oral, documentary or both depending on the type of subpoena issued to him. SeeOMIDIRAN V. ETTEH (2011) 2 NWLR (Pt. 1232) 471 at 500 E-F. It is therefore unexpected that a witness served with a subpoena deuces tecum would come to Court to give oral evidence.

The learned counsel also laid so much emphasis on Exhibit I, which is needless as the learned trial judge did not attach any weight to the exhibit, in the cause of his judgment at page 372 of the main record of appeal.

Against the backdrop of the forgoing, it cannot be over emphasized that the Respondent successfully discharged the onus of proof initially cast on her, and the burden of proof was shifted to the Appellant. That necessarily foisted on the Appellant the need to prove his own version of the case.
The evidence of CW1 and CW6 were consistent, cogent and were not discredited in any form and deserve to be given probative value. Same cannot be said of the adulterated and inconsistent evidence of the Appellant as would be seen anon.

In a purported attempt to defend his refusal to pay the debt, the Appellant denied the transaction and his indebtedness in totality. The Appellant in defense alleged that the transaction was illegal ab initio. During the cross examination of the Appellant at page 287 of the record, the Appellant stated thus:
“I cannot be involving (Sic) in illegal matter. I have never been involved in illegal activity all my life except for the transaction of MTN Recharge Cards between me and not(sic) Saliu Adetunji, abdul-jelili CW2, a staff of Demmy Global.”

As earlier argued in this brief, the Respondent herein simply adopts his argument in paragraph 5.05 to 5.09 of this brief to debunk the Appellant’s assertion and argument that the transaction was illegal and therefore unenforceable.

Aside that, the Appellant sought to no avail all manner of consistent assertions all in an attempt to run away from his liability.

The Appellant denied the reversal of the sum of N1,950,000 via his pleading and even denied that CW1 informed him of the reversal. However, he finally admitted during the cross examination that the said sum was reversed back into his account. It is worthy of note that the said sum of money in the Appellant’s account (Exhibit A) after the dates in question that is 17th and 24th December, 2014 show that the Appellant had substantial amount of the money in this accounts which are the proceeds from the sales of the recharge cards sold to him on the 17th and 24th day of December 2014 respectively.

Again the Appellant alleged in paragraph 15 of his written deposition, that any time the Respondent supplied him MTN recharge cards, he usually signed goods transfer note and write his name. Expectedly, therefore, the Appellant should have tender the alleged goods transfer note/sales invoice of MTN he usually signs and puts down his name. Paragraph 14 of the Appellant’s statement on Oath is instructive in this regard and reproduced hereunder for ease of reference;
“That even where the MTN Recharge Cards were delivered to me at the border town between Ekiti State and Ondo State by the Respondent’s members of staff ,the sales invoice(s) were always in Respondent personal names which I always sign for personally. Copies of the previous invoice and receipts in respect of the previous transactions are herewith attached as Exhibit in this suit.”

The Appellant had testified in the paragraph 18 of his written deposition that he had transacted with the Respondent on MTN Recharge Cards for more than six times. The Appellant failed to tender any such invoices and receipt in respect of sales of MTN recharge cards to him. Obviously because there was no such invoice where he put down his personal

name as alleged in the above quoted paragraph 14 of the Defendant’s written Deposition.

Ostensibly in late realization of the fact that he could not prove his claim being issue on MTN invoice, with his name inscribed on it, the Appellant turned around to claim during cross examination that the Respondent did not give him goods transfer note(GTN), or invoice for the supplies of MTN recharge cards. The rub to his turnaround lies in the fact that evidence that the Respondent did not give him goods transfer note invoice in respect of MTN recharge cards sold to him is not covered by pleading of the Appellant. The law is very elementary that evidence not covered by pleadings goes to no issue. See: ALIBO V. OKUSIN supra at 1078; OWOADE V. OMITOLA (1988) 5 SC 1 at 18; ACD LTD. V. GWAGWADA (1994) 5 NWLR (PT. 345) 25 at 35; NWAWUBA V. ENEMUO (1988) 5 SC 264 at 289.

Also, there is a brazen attempt in this situation on the part of the Appellant to change the colour, and tenor of his defense at the trial Court, by giving evidence that is a direct negation of his pleadings, that the Respondent always gave him invoices for the supply of MTN recharge cards

sold to him. This approach cannot also avail the Appellant in this case. It is settled law that the party cannot make one in this evidence. ACB LTD. V. GWAGWADA supra at 35; AJIDE V. KELANI (1985) 11 SC 124 at 173; NWAWUBA V. ENEMOU supra at 290.
Nevertheless, upon further emphasis on the issue by the Respondent’s counsel, the Appellant admitted that he was issued a form whenever he purchased MTN recharge cards. Then, one would be quick to ask the where about of those forms. Again, the rub attempt of the Appellant to change his case is that since he turned around to allege that the Respondent does not issue him invoices but forms. The Appellant failed to plead and/or tender the said forms hence, counsel submitted that should there be any of such forms the Appellant ought to have tendered same, but failed to tender them because he knows that if he tenders them they will certainly not advance the cause of his defense. See: Section 167 (d) of the Evidence Act, and IN RE ADEWUNMI & ORS. (1988) 3 NWLR (83) 433 at 500; AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 91 at 201. Counsel urged this Court to so hold.
Counsel further contended that

the later stance of the Appellant that he was issued a form, amounts to a material contradiction in the evidence of the Appellant, since he had earlier alleged that the Respondent does not issue him invoices whenever he purchases MTN recharge cards. The Appellant appeared to be unstable and inconsistent in this regard. The Court can only rely on the unequivocal consistent and uncontradicted evidence of the Respondent’s witness in this regard. On the standpoint of this scenario, the case and evidence of the Appellant was fraught with inconsistency and rendered suspect. See ADEBAYO V. IGHODALO (1996) 5 SCNJ 23 at 31 where the apex Court held that evidence that is in conflict with or at variance with fact pleaded is to be rejected off hand being worthless.

The Appellant alleged that Exhibit D and D1 smacks of fraudulent practice on the part of the Respondent’s staff. Counsel contended that the Appellant having alleged fraud in his pleading, is bound to establish that beyond reasonable doubts. It is a settled position in our jurisprudence that the evidential burden of proof rests on that party who asserts. Put differently, the burden proving a

particular fact is on that party who asserts it. See AWOLOWO V. KINGSWAY STORE (NIG.) LTD. (1968) 2 ALL NLR 217 at 247; UGBO V. ABURIME (1994) 9 SCNJ 23 at 39; UBN LTD. V. OZIGI (1994) 3 NWLR (PT. 333) 385 AT 407. The Appellant who alleged that the Exhibit D and D1 were forged, failed to prove it on the preponderance of Evidence, let alone beyond reasonable doubt. That was never done, as discernible from the oral and the documentary evidence of the sole evidence of the Appellant.

It should be apparent that the Appellant raised the issue of illegality, to draw a red herring and mislead the Court in this matter. Now that it has become manifest that the Respondent’s staff were not fraudulent, the failed attempt made by the Appellant to mislead the Court robs the evidence of the Appellant of credibility. Similarly, when the evidence of the Appellant in this case is taken along with his previous stance on the record, it would be obvious that the Appellant has not been consistent or truthful on the transaction that led to this matter. The import of that is that the evidence in this case should not be believed as it is discernible. See: AWOLOWO V. KINGSWAY STORE (NIG.) LTD.

(1968) 2 ALL NLR 217 at 247; UGBO V. ABURIME (1994) 9 SCNJ 23 at 39; UBN LTD. V. OZIGI (1994) 3 NWLR (PT. 333) 385 AT 407, where Obaseki JSC had this to say:
“Adjudication on any matter before a Court of law is not an easy matter. Cogency of evidence led depend on a series of factors the most important of which is the credibility of the witness is enhanced if there is no contrary evidence to his testimony…If the testimony of the witness is destroyed, the evidence he has given loses cogency and probative value.”

Proceeding from the foregoing analysis, it should be manifestly seen that the Respondent established her case on preponderance of evidence, and balance of probabilities. When the respective pieces of evidence of the parties are placed on imaginary scale of justice, the picture that would emerge is that of overwhelming preponderance of the evidence of the Respondent. See ADELEKE V. IYANDA (2001) 13 NWLR (PT. 729) 1 AT 23-24;
“It is a principle of the law that civil cases generally are decided on the balance of probabilities. This principle applies even where a declaration of title to the land

is involved. As said by his Court per Ibekwe JSC in Kaiyaoja v. Egunla (1974) NSCC (Vol. 9) at 609:
“This Court has always held that what is required of a plaintiff in an action for the declaration of title is at least to establish his claim by preponderance of Evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to proof to satisfaction of the Court that he has a better title than the Defendant. We think that it is relevant to draw attention to the fact that the subject to the well known rules as was laid down in Akpan Awo v. Cookey Gam, (1913) 2 NLR 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of the title is not different from that which is required in civil cases generally. The only difference if we may say so, rest on the fact that the burden of the proof is on the plaintiff, who is claiming title, and that it never shifts to the Defendant throughout the trial. The difference therefore, lies, not in the standard of proof, but on the burden of proof.”
This burden of proof

takes cognizance, of course, of the imaginary scale to determine to what aside the evidence tilts the scale. Where that plaintiff has adduced admissible evidence adduced which is satisfactory in the context of the case, and non is available from the Defendant,the case will be decided upon a minimum of proof. This makes the burden lighter. In the present case there is no admissible evidence adduced by the Defendant to compete with that of the plaintiffs as to the party entitled to the land in dispute. Therefore the scale naturally tilts in favor of the plaintiffs.”

On the pains of emphasis, the learned trial judge found the evidence of the Appellant incredible and unreliable. There is no appeal against that finding in this appeal. The Appellant is deemed to have admitted his findings See: ALAGBE V. ABIMBOLA (1978) 2 S.C. at 40, AJOMALE V. YADUAT (1991) 5 NWLR (pt. 191) 266 S.C.

Counsel contended that Upon the background of the foregoing, the trial Court was right when it held that from the totality of the oral and documentary evidence before him, the Respondent proved her case as required in law to entitle her to judgment. Where a trial Court

believes a witness, the onus shifts to the appellant to show that the trial Court failed to consider the relevant facts. See NKEBISI V. STATE (2010) 5 NWLR (PART 1188) P. 471 AT 492 PARAS D.

Learned counsel surmised that it is apt at this juncture to contend that the effort made by the Appellant’s Counsel in his address to discredit the case of the respondent are misplaced and abortive having regard to the quality of the evidence adduced by the Respondent and her witness in this matter.

Argument on inadmissible evidence.
On the third issue in the Appellant’s brief, the learned counsel for the appellant claimed the erudite trial judge allowed inadmissible evidence upon which he based his decision. Baseless as this assertion is, a quick glance at the judgment of the trial Court spanning pages 354-376 especially 365-376 would decimate this issue. Further, the Appellant has done nothing or adduced any cogent evidence in support of this preposterous claim in this appeal. The law is trite that a party who alleges the existence of a state of affair has the burden of proving that state of affair failing which his claim will fail. See

DASUKI V. FRN (2018) LPELR-43897 (SC) @ Page 13 D-F; A. C. B. PLC. V. EMOSTRADE LIMITED (2002) 8 NWLR (Pt. 770) 501 at 516 A-B. Counsel urged this Court to so hold.

Argument on damages
On the fourth issue raised as to the excessiveness or otherwise of the damages awarded by the learned trial judge, counsel submitted that it is well settled that damages are awarded to compensate a Claimant for the loss suffered as a result of a breach of contract in a given circumstance. See CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT. 512) 1260 at 1282, para. E where the Supreme Court, per Rhodes-Vivour, JSC, held that once breach of contract is established damages must automatically follow. The law is also trite that in a case of contract, the assessment of damages is calculated on the basis of loss sustained by the injured party, which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach. See M.M.A. INC. V. NATIONAL MARINE AUTHORITY [2013] ALL FWLR (PART 678) 790 at 820, PARAS D-F.

The learned trial judge only awarded pre-judgment interest and post judgment interest as damages. No extra and/or different amount was awarded

as damages. The position is well settled in law that judgment interest may be awarded, amongst others, under a principle of equity such as breach of fiduciary relationship. See the decision of the Supreme Court in A. G. FERRERO & CO. LTD. V. H.C.N.C. [2011] ALL FWLR (PT. 587) 647 at 660, paras. A-B. In the instant case, it is incontrovertible that the Appellant also had a fiduciary relationship with the Claimant that was breached in the manner the contract was unlawfully not fulfilled by the Appellant. For emphasis, the BLACKS LAW DICTIONARY, 8TH EDITION defines fiduciary relationship “as that in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship”.

Counsel cogently pointed out earlier in his arguments, the refusal and failure of the Appellant to pay for the stock sold to him on credit, out of trust is doubtless a breach of fiduciary relationship in the circumstances by the Appellant. On the strength of the foregoing, counsel submitted that it is simply equitable that the pre-judgment interest sought by the Claimant in this Suit be granted.

67

The claim for post-judgment interest is statutory as provided for by ORDER 35, RULE 4, EKITI STATE HIGH COURT (CIVIL PROCEDURE RULES) 2011. Which provides thus:
“The judge at the time of making any judgment or order or Any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order, or from seine other point of time, as the judge deems fit and may order interest at a rate not exceeding 10% per annum to be paid upon any judgment.”

Counsel contended that it is unquestionably proper and deserving that the post judgment interest sought, be granted. It has been judicially established that monetary judgment attracts post-judgment interest even where none is expressly claimed. See: DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD. & ANOR. (2009) 12 S. C. (PT.II) 159 at 185-186, per Ogbuagu, JSC. See also NAGEBU COMPANY (NIG.) LTD. V. UNITY BANK PLC [2013] ALL FWLR (PT. 698) 871 at 908, para. F, where judicial approval was given for the award of post judgment interest.

In effect, a glance at the judgment of the trial Court spanning pages 354-376 particularly line 4 on page

376 would show that the learned trial judge kept the decision within the ambience of the provision of the Court rules in awarding an interest of 10% on the said judgment sum. This leaves the assertion made in the third issue by the learned counsel for the Appellant as preposterous and otiose at best. At any event, the damages awarded by the learned trial judge in this suit is not excessive given the particulars of this case and the trial Court did not act or proceed upon the wrong principles of law neither was there an erroneous estimation of the judgment sum considering the overwhelming amount of evidence before the Court.

Argument on evaluation of evidence
On the fifth issue, learned counsel for the Appellant had argued that the decision of the learned trial judge was not properly evaluated and yet the learned trial judge founded for the Respondent. In another vein, learned counsel could be understood as contending that if the evidence had been properly evaluated, the judgment would have gone in favor of the Appellant. It is well settled that an appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to

identify or specify the evidence improperly evaluated or not evaluated, and to show clearly that if the error in issue had been corrected the conclusion would have been different and in favor of the aggrieved party. This was given judicial impetus in the case of NKEBISI V. STATE (2010) 5 NWLR (PART 1188) P. 471 AT 492 PARAS C where the Supreme Court held thus:
“It is accepted that an Appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in favor of the party complaining of wrong evaluation.”

Counsel submitted that the Appellant’s position is untenable having regard to the evidence adduced at the trial Court. This explains why the Appellant, woefully failed to discharge the onus on him in his brief to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in the Appellant’s favor. On this score alone, counsel urged

this Court to dismiss this appeal.

Respondents counsel contended that what Appellants’ counsel has succeeded in doing is to reel out legal principles without connecting them with the facts and circumstances of this case. Thus, the submission of the learned Counsel are of no meaningful utilitarian or pragmatic value in this appeal.

On the pains of emphasis and in a bid to leave no stone unturned, counsel submitted that it is settled law that appeal is an invitation to a higher Court to review the decision of the lower Court in order to find out whether, on the proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision. See the case of NIGERIA NAVY v. LABINJO (2012) 17 NWLR (PT. 1328) 56 at 80 and OMBUGADU v. C.P.C. (2013) 3 NWLR (1340) 31 at 48. Counsel submitted that the Respondent has taken time to analyze the evidence adduced at the trial Court, in this Respondent view via issue two. We humbly submit that the meticulous review of the evidence and the applicable law in this case has revealed that the learned trial judge came to a right decision in the judgment under consideration.

Counsel humbly urged this Court not to interfere with the judgment in this regard in line with the decision in the case of NKEBISI v. STATE (SUPRA) at 492 para B. Moreover, it is crystal clear that the Appellant has not suffered any miscarriage of justice with respect to the judgment. Counsel urged this Court to so hold.

RESOLUTION
The question of jurisdiction is very fundamental that, it should be dealt with first before continuing with any proceedings. If a Court proceeds without jurisdiction it would amount to a nullity.

It is also trite that the question of jurisdiction can be raised at anytime even for the first time on appeal. Ukwu v. Bunge (1997) 8 NWLR pt.518 pg. 527; Jeric Nig. Ltd. v. UBN Plc. (2000) 12 SC pt. 11 pg. 153; A.G. Lagos State V. Dosunmu (1989) 5 NWLR pt. 111 pg. 552; Nnonye v. Anyichie (2005) 2 NWLR Pt.910 pg. 623.

Territorial jurisdiction of a trial Court is relevant for the validity of any proceedings before a Court. Wuyep v. Wuyep (1997) 10 NWLR Pt. 525 pg. 154.

In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of

summons and the statement of claim. Gafar V. Govt. of Kwara State (2007) 4 NWLR pt. 1024 pg. 375; Onuorah v. KRPC (2005) 6 NWLR Pt. 921 pg. 398; Tukur v. Govt. of Gongola State (1989) 4 NWLR Pt. 117 pg. 517.

In the instant appeal, the Writ of Summons was issued in the High Court of Justice of Ekiti State. The Court has to critically look at the Writ and the Statement of the Claimant/plaintiff. In this appeal, the plaintiff/Respondent in her Statement of Claim averred as follows:
“2. The Defendant, at all times material to this suit, was one of the customers of the Claimant, initially at the Ado-Ekiti Branch of the Claimant, and later in the year, 2014 at the Akure branch of the Claimant. The Defendant was buying MTN Recharge Cards from the Claimant in bulk as a Distributor.”

The Appellants counsel strenuously argued that the trial Court lacked jurisdiction since the subject matter of the contract was to be executed in Ondo State.

The Respondent’s counsel submitted that where a Defendant resides is one of the factors that bestows territorial jurisdiction on a Court. He cited ORDER 2 Rule 3 of the Rules of the trial Court

(High Court of Ekiti State Civil Procedure Rules, 2011) which provides thus:
“3. All suits for specific performance, or upon breach of any contract, shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.”

Counsel submitted that the Appellant acknowledged this in paragraph 5.17 of his Brief. That it was not in dispute that the Appellant resides in Ekiti State. Therefore this fact confers jurisdiction on the Honorable trial Court to entertain this matter. That the Appellant himself , stated in paragraph 2 of his Witness Statement on Oath at page 192 of the main Record of Proceedings that he resides at Ekiti State :
“That I reside at Road Number 4, opposite TOS Filing Station, Olora Layout , Oke- lla Housing Road, Ado-Ekiti, Ekiti State.”

The above paragraph described defendant/Appellant and address. Order 2 Rule 3 Ekiti State High Court (Civil Procedure) Rules, 2011 provides that suits arising from breach of contract shall be commenced and determined in the Judicial Division in which the contract was entered into or ought to have been performed or in which the defendant resides or carries on business.

In the instant case, the Respondent stated that, the contract of sale of the MTN Recharge Cards was entered into in Akure Ondo State. The Appellant took delivery of the MTN recharge cards in Akure and took them to Ado-Ekiti. The Appellant told the staff of the Respondent that he had dropped the earlier payment teller with his colleague. Therefore he should be given new stock.

The learned trial judge on page 371 found rightly “There are overwhelming evidence from both parties that the defendant resides and has his office at Ado-Ekiti. To that extent, the claimant was right to have instituted this case at Ado Ekiti or in this Court. I hold that the claimant’s case is not bedeviled with territorial jurisdiction. This Court has jurisdiction to entertain this suit and determine same.”

The learned trial judge applied the right statute and arrived at the correct finding. That finding is unassailable and ought not to be disturbed.

The Appellant contended that the claimant has not pleaded specific by itemizing the defendants’ indebtedness of N14,703,705.00.That the Court cannot act on speculations.

The learned trial judge rightly agreed with the Claimant’s counsel that the particulars of the claim of the Respondent was patently clear in her pleadings. The finding of the trial judge that “The argument of the defence counsel to the extent that the claimant’s case borders on illegal contract will not hold water as the evidence on record which is unchallenged that the defendant held himself out to having customers at lju in Ondo State and hence lju was written as the destination of the goods and not Ado-Ekiti” cannot be faulted in that the evidence of the Respondent was not challenged. Therefore the Appellant cannot turn around to claim illegality, having collected the goods, sold them and benefited from the transaction.

The Appellant has made a big weather as to Exhibits D and D1. That the Appellant did not sign them. The Respondent has contended that the two documents were used to supply MTN Recharge Cards to the Appellant the trial judge was right to disbelief that the documents were not used to supply Appellant with goods as he admitted that some

of the numbers of the recharge cards on Exhibits D and D1 were recovered from Appellant.

It is trite that Civil matters are decided on preponderance of evidence and balance of probabilities. See the case of Iseogbekun v Adelakun(2013) All FWLR (PART 664)168 at 188 D-F. The trial judge put the evidence on record on an imaginary scale of justice in arriving at the correct finding that the evidence supports the case of the Respondent more than that of the Appellant.

The holding of the trial judge that “I hold therefore that from the totality of the oral and documentary evidence before this Court, the claimant has proved her case as required in law to entitle her to judgment” is one that must not be disturbed because it is the correct finding and conclusion from the evidence proffered before the trial Court.

With the foregoing no one is in doubt where the transaction took place. If the contract of sale was entered into by the Appellant and Respondent, in Akure and the Appellant resides in Ado-Ekiti, it therefore means that Ekiti State High Court had jurisdiction to hear and determine this money demand. All the Issues are therefore resolved against the Appellant.
This appeal is unmeritorious and is hereby dismissed.

The Judgment of the trial Court is affirmed. The judgment entered in the sum of (N14,703,750) Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and fifty naira is hereby affirmed. Interest rate of 20% per annum to be paid by the Appellant from the 1st February, 2018. The Appellant shall pay an interest of 10% on the said judgment sum of N14,703,750.00 (Fourteen Million, Seven Hundred and Three Thousand, Seven Hundred and Fifty Naira) only until liquidation of the judgment sum.
In addition, the Appellant is to pay N50,000.00 cost of this appeal to the Respondent.

PAUL OBI ELECHI, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to preview the draft of the lead judgment delivered by my learned brother, F.O AKINBAMI JCA and I am in agreement with the reasoning and conclusion reached therein.
I also dismissed the appeal as unmeritorious. The judgment of the Court below is hereby affirmed and I make no order as to cost.

Appearances:

OTUNBA SUNDAY J. OCHAYI, with him, O. E. OROBOR Esq. and G. C. UWAEZUOKE Esq. For Appellant(s)

GENEVIEVE OKOYE, MRS For Respondent(s)