JOSEPH SAMMY AND SONS LIMITED v. FRIDAY AGBONLAHOR
(2011)LCN/4641(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of June, 2011
CA/B/255/99
RATIO
JOINING OF ISSUES: WHEN ARE THE PARTIES TO AN ACTION SAID TO BE AT ISSUE
…when parties to an action have ensued one another pleadings in such a manner that they have agreed on some material part or matter of fact, affirmed on one side and denied by the other, the parties are said to be at issue, they have joined issue and the question thus raised is called the issue. PER GEORGE OLADEINDE SHOREMI. J.C.A.
SETTING ASIDE JUDGMENT OF TRIAL COURT: DUTY OF AN APPELLATE COURT WHERE A TRIAL COURT COMMITS AN ERROR OF LAW WHICH IS FATAL.
When a trial court commits an error of law which is fatal the court of Appeal will intervene and set aside the Judgment. See: NNA JIOFOR Vs UKOND (1986) 4 NWLR (PT.36) 505 AT 525 C – D. Further more a Judge that is riddled with the like of perversity should not be allowed to stand. See: ADIMORE Vs AJUFO (1988) 3 NWLR (PT.80) 1 AT 15 – 16 ODIBA Vs AZEGE (1988) 9 NWLR (PT.560) 370 AT 380 PARAGRAPHS D-E Where it was held that a perverse decision is one which ignores the facts or evidence and when considered as a whole amount to a miscarriage of Justice. PER GEORGE OLADEINDE SHOREMI. J.C.A.
INTERFERENCE WITH EVALUATION OF EVIDENCE: WHETHER THE APPEAL COURT WILL ONLY INTERFERE WITH THE EVALUATION OF EVIDENCE CARRIED OUT BY THE LOWER COURT WHERE IT IS PERVERSE
It is the primary duty of the trial court to evaluate and ascribe probative value to admissible evidence be it oral or documentary and the appeal court will not ordinarily interfere with the evaluation or appraisal carried out by the lower court except same is perverse. IGBEKE Vs EMORDI (2010) 2 NWLR 434 PAGE 59. PER GEORGE OLADEINDE SHOREMI. J.C.A.
BURDEN OF PROOF: WHETHER A PLAINTIFF CAN ONLY SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE CASE OF THE DEFENCE
A Plaintiff succeeds on the strength of his case and not on the weakness of the case of the defence. See: KAMARU & ORS Vs OGUDE & ORS (1972) 1 SC 182, TANKO Vs ECHENDU 2010 (Pt.1) SC 341. PER GEORGE OLADEINDE SHOREMI. J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU IHEME Justice of The Court of Appeal of Nigeria
Between
JOSEPH SAMMY AND SONS LIMITED Appellant(s)
AND
FRIDAY AGBONLAHOR
(Trading in the name and style of F. Addillar (Nigeria) Enterprises) Respondent(s)
GEORGE OLADEINDE SHOREMI. J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court sitting in Warri Judicial Division Delta State of Nigeria where the learned trial Judge gave Judgment in favour of the plaintiff. The said Judgment was delivered on 13th May, 1997. It is on pages 33 – 43 of the Records of Proceedings.
The Respondent as Plaintiff claimed in the trial court as follows:-
(i) The said sum of N137.520.00 being the balance of money owed by the Defendant to the Plaintiff in respect of the spare parts supplied By the Plaintiff to the Defendant between the months of October, 1993 and January, 1994.
(ii) Interest at the prevailing bank rate from January, 1994 until judgment is given.
(iii) Other suitable reliefs”
The facts of the case are:
“The Appellant who at all times material to the filing of the Writ of Summons against it, was engaged in the business of marine transportation and had a contractual arrangement with the Respondent, a dealer on Marine Spare Parts, to supply spare Parts needed by the Appellant for use in repairs and/or maintenance service of its Tug Boats/Barges. It was mutually agreed to by the Appellant evidenced in invoices prepared and signed by the parties and which were to be submitted to the Lagos office of the Appellant for payment after scrutiny and confirmation of prices and items of spare parts supplied.
However, in the course of the transaction between October 1993 and January 1994, items/spare parts supplied to the Appellant by the Respondent covered by 14 Invoice were Presented for payment at the Lagos office of the Appellant. The officer of the Appellant observed price differentials in the Invoices and confronted the respondent undertook a price review/reconciliation of the items/spare parts which was/were reflected in Red ink on the invoices and the agreed sum paid over to the Respondent.
After the Respondent had been fully paid the agreed sum covered in the subject invoices, he made a complete U-Turn and sued the Appellant for the sum claimed in the Writ of Summons contending that “the Appellant chose to pay him” what it wanted.
Pleadings were filed an exchanged the case proceeded on trial. At the trial the Respondent testified and tendered Exhibits A1 – A13, B1 – B13, C and D but called no witness. Two staff of the Appellant to wit, DW1 and DW2 testified and tendered Exhibits E1-813. At the close of the case, Counsel for the parties addressed the Court. The main thrust of the Counsel for the appellant’s contention was that since payment for the goods supplied was subject to approval of the Lagos Office of the appellant after scrutiny and confirmation, as given in evidence and partly admitted by the Respondent and the full sum was paid after a price Review/reconciliation by the parties had been made, the Respondent was not entitled to the reliefs sought. On the contrary, the Respondent contended that the transaction was conclusive upon acceptance of the spare parts by the Appellant’s officers in Warri who received and used the spare parts also in Warri, the Lagos office of the Appellant had nothing more to do than to pay the prices covered in the subject invoices.
On the part of the Appellant the following paragraphs of the statement of Defences are relevant and are reproduced thus:-
“2. Paragraph 9 of the Plaintiff s statement of claim is admitted only to the extent that some goods or items were supplied by the Plaintiff to the Defendant, but states that the invoices prepared by the Plaintiff were subject to scrutiny by the Defendant’s authorized officers in Lagos office and after such scrutiny and confirmation, the Defendant pays the agreed sum of money without delay.
3. In answer to paragraph s 6, 8, 10 and 14 of the Plaintiffs statement of claim, the Defendant avers that it is/was the practice and of course, the mutual understanding reached between the Plaintiffs and Defendant that the Plaintiff could supply spare parts to the Defendant’s workers at Warri and submit the invoices to the Defendant’s Lagos office for payment after due inspection of invoices and delivery notes issued and signed by the Plaintiff and Defendant’s officers.
4. In further answer thereto, when the Plaintiff called at the Defendant’s Lagos office for payment and presented the invoices, subject matter of this Suit, the Defendant discovered price differentials and certain malpractices and confronted the Plaintiff with same. The Plaintiff and Defendant there and then agreed on an on-the-spot reconciliation/price review of the amounts covered by each invoice per item of spare parts. Consequently, a thorough reconciliation price review was made by the Plaintiff and the Defendant’s authorised officer, and the agreed sum due and payable by the Defendant was reflected in the various invoices in red ink and the Defendant paid the sum so agreed, with the Defendant’s stamp endorsing payment thereon.
The Plaintiff did not raise any objection as to the price review and the payments were made on mutual understanding and acceptance by the Parties.
The Defendant shall found upon the relevant invoices showing the agreed and accepted prices/values in red ink”.
In a considered Judgment the trial Judge at Pages 42 – 43 of the record concluded thus: The Plaintiff has no doubt discharged the burden of proving his case on preponderance of evidence as required by law. After due consideration and evaluation of issues canvassed by counsels on both sides, I enter judgment in favour of the plaintiff against the defendants as per the plaintiff s claim and order that:
“The sum of N137.520.00 being the balance of money owed by the defendants to the plaintiff in respect of spare parts supplied is to be made available to the plaintiff forthwith.”
Now on the issue of interest in the 2nd relief sought by the plaintiff. The plaintiffs counsel, A.M. Oriakhi, is of the contention that interest in this regards should be at the prevailing bank rate from January, 1994 until judgment is given, which he says is at the court’s discretion. Learned defendant’s counsel, F. Zimugha, is of the view that it is the duty of the plaintiff who is claiming interest at the current bank rate to lead evidence touching on circumstances entitling him to interest, and also to inform the Court what the current bank rate is.”
The appellant filed his notice and grounds of the appeal within time. The Grounds of appeal without particulars read as follows:-
GROUND ONE:
(1) The learned trial Judge having found that “there is no doubt that this type of transaction was made subject however to approval of the prices as earmarked on the invoices, that is, Exhibits E to E13 signed in Warri by the Officers of the Defendant and Plaintiff himself’, erred in law in given judgment infavour of the plaintiff,
(2) The Learned trial judge erred in law in not dismissing the Plaintiffs claim, having found as a fact to the following effect; “Like I did mention earlier on, there was a conditional acceptance of the goods of offered by the Plaintiff to the Defendant. This is so because the payment of the goods supplied was “subject to approval” from the Defendant’s Lagos Officer” and thereby come to a wrong conclusion.
(3) The learned trial judge misdirected herself on the facts and came to a wrong conclusion when she held:-
“The contract between the parties in this case, I held, existed Right from the making of Exhibits A to A13, so the alterations on Exhibit’s E to E13 I consider to be mere variation of the contract that already existed”.
3. The learned trial judge erred in law when she held:
“The learned Counsel for the Plaintiff did submit that the Defendant did not plead in their Statement of Defence that the Plaintiff was present at the Lagos Office when alterations on Exhibits E to E13 were made. I agree with learned Counsel in this regard and hold that the law is settled that the parties are bound by their pleadings and would not be allowed to set up a case different from the one flowing from the pleadings. The evidence therefore, of the DW2 that the Plaintiff was present and together with him when the red mark alterations were made as per Exhibit E to 813 does not belong to the issued raised. See the case of GEORGE Vs DOMINION FLOUR MILLS LIMITED (1963) I SCNLR 117”.
5. The learned trial judge erred in law using Exhibit d as a basis for holding that the defendant is indebted to the Plaintiff, and thereby giving judgment to the Plaintiff.
6. The learned trial judge erred in law when she held:-
“There is not doubt that the Defendant’s have not been able to escape their liability and indebtedness to the Plaintiff as they remain bound by the contract made between the plaintiff and Defendant. Having positively come all out to do business with the plaintiff the Defendant’s estopped from denying the sum due to the Plaintiff as reflected in the invoices. They are involved up to their neck”.
7. The judgment/Decision is against the weight of evidence.
8. Additional and/or further grounds of appeal will be filed on the receipt of the record of proceedings.
The appellant filed his brief of argument on 9/12/2002 but deemed properly filed and served on 24/9/2003 vide an application dated 28/11/2002 filed on 9/12/2002.
The Respondent till the date of hearing of this appeal on 28/3/2011 did not file any brief of argument. Therefore the appellant on 21/11/2001 was granted leave to argue the appeal based on the appellant’s brief alone the respondent having failed to file Respondent brief.
On 28/3/2001 when the appeal came up for hearing the learned counsel to the appellant adopted his brief of argument deemed filed on 24/9/2003 and relied on it as his argument in favour of the appellant and urge the court to allow the appeal and set aside the judgment of the trial Judge.
The appellant from the seven grounds of appeal distilled 3 issues for consideration.
The 3 issues are:
1. Whether the trial judge did not misapply the principles of law enunciated In the case of GEORGE Vs DOMINION FLOUR MILLS LIMITED (1963) 1 S.C. 117 to the facts of this case. This issue is covered by grounds 4, 5, and 6 of the grounds of Appeal.
2. Having found that the parties entered into a contract of conditional sale on credit-was the learned trial judge right to enter judgment in favour of the Plaintiff. This issue is covered by grounds 1, 2 and 3 of the grounds of Appeal.
3. Whether the trials Court evaluate or evaluate adequately the evidence adduced by the parties in this case. This issue is covered by ground 7 of the grounds of Appeal.
ON ISSUE I: The appellant argued that it settled law the evidence led on facts not pleaded by respondent goes to no issue.
Refers to VANDER PUYE Vs GBADEBO (1998) 3 NWLR (PT. 541) 277 AT 279. He then went ahead to set out the relevant pleadings on the issue in contest.
He also quoted the relevant part of the defence. He then contended that the Respondent both in his pleadings testified that he supplied to the defendant marine spare parts, on cash which were duly covered by invoice Exhibits A1 – A13 and defendant paid is what it chose to pay. He referred to page 16 lines 21 -24 of the Record of Proceedings.
He argued that under cross examination the respondent said.
“I have been fully paid the amount in Red”. He then referred to the evidence of DW2 at Page 24 of the Record. He then referred to the judgment of the court on this case at Page 41 Lines 7 – 12 wherein the learned trial Judge held that the defendant appellant did not plead in their statement of defence that the plaintiff was present at the Lagos Office when the alteration in Exhibit E -E13 were made.
The trial Judge held that the evidence of DW2 as to alteration does not belong to issue raised relying on GEORGE VS DOMINION FLOUR MILLS LIMITED (1963) 1 S.C. 117.
The counsel argued that the learned trial Judge misapplied the principle of law enunciated in the DOMINION FLOUR MILL LIMITED case (supra).
He urged the court to resolve this case in favour of the appellant. In the consideration of this issue it will be necessary to see what is contained in the Pleadings of parties.
The Respondent in his statement of claim pleaded inter alia:-
“6. The Plaintiff further avers that all such credit sales were evidence by invoices duly signed by the Plaintiff and agents Defendants.
7. In keeping with understanding thus reached between Plaintiff and Defendant, the Plaintiff between the months of October 1993 and January, 1994 supplied sundry marine parts and materials to the Defendant running into several Thousands of Naira. The said supplies were made by the Plaintiff to the Defendant at the Nigeria Ports Plc premises where the said parts were used in the repairs and Maintenance of the Tug Boats and Barges.
8. The Defendant accepted all the items supplied under the sales above pleaded and their values and signed the covering invoices accordingly. The invoices which are 14 (fourteen) in numbers are dated between 26/10/93 and 25/1/94.
9. The Plaintiff further avers that the Defendant having signed and accepted the full value of each of the 14 invoices later refused to pay the full value of each of the invoice.
10. Plaintiff avers that the Defendant instead of paying the value of the invoices as signed by them resorted to tinkering with their own copies of the invoices long after they have accepted same from the Plaintiff.
5.5 On the part of the Appellant, the following paragraphs of the statement of Defence are relevant and are reproduced thus:
“2. Paragraph 9 of the Plaintiff’s statement of claim is admitted only to the extent that some goods or items were supplied by the Plaintiff to the Defendant, but states that the invoices prepared by the Plaintiff were subject to scrutiny by the Defendant’s authorised officers in Lagos office and after such scrutiny and confirmation, the defendant pays the agreed sum of money without delay.
3. In answer to paragraphs 6,8,10 and 14 of the Plaintiffs statement of claim, the Defendant avers that is/was the practice and of course, the mutual understanding reached between the Plaintiff and defendant that the Plaintiff could supply spare parts to the Defendant’s workers at Warri and submit the invoices to the Defendant’s Lagos office for payment, after due inspection of invoices and delivery notes issued and signed by the Plaintiff and Defendant’s officers.
4. In further answer thereto, when the Plaintiff called of the Defendant’s Lagos office for payment and presented the invoices, subject matter of this Suit, the Defendant discovered price differentials and certain malpractice and confronted the Plaintiff with same. The Plaintiff and Defendant there and then agreed on an on-the-spot reconciliation/price review of the amounts covered by each invoice per item of spare part. Consequently a thorough reconciliation/price review was made by the Plaintiff and the Defendant’s authorised officer, and the agreed sum due and payable by the Defendant was reflected in the invoices in red ink and the defendant paid the sum so agreed, with the Defendant’s stamp endorsing payment thereon.
The Plaintiff did not raise any objection as to the price review and the payments were made on mutual understanding and acceptance by the Parties.
The defendant shall found the relevant invoices showing the agreed and accepted prices/values in red ink’.
There is no doubt from the above that parties have joined issue on Exhibit A1 – A13 (Original EI – EI3) when parties to an action have ensued one another pleadings in such a manner that they have agreed on some material part or matter of fact, affirmed on one side and denied by the other, the parties are said to be at issue, they have joined issue and the question thus raised is called the issue.
The Respondent in his pleadings as read as in Evidence on printed Record. Have agreed that spare parts were supplied in Warri and payment made in Lagos on the invoices and that the Lagos office chooses what is to be paid. It is in evidence that this had always been the practice. He even admitted at Page 18 Lines 30 – 33.
“I have been fully paid the amount in red.”
Despite the above related quoted facts on the record the trial Judge held as follows I quote
The learned judge held at page 41 lines 7 – 12:
“The learned Counsel for the Plaintiff did submit that the Defendant did not plead in their statement of defence that the Plaintiff was present at the Lagos office when the alterations on Exhibits E to E13 were made. I agree with the learned Counsel in this regard and hold that the law is settled that Parties are bound by their pleadings and would not be allowed to set up a case different from the one flowing from the pleadings. The evidence therefore, of DW2 that the Plaintiff was present and together with him when the red ink mark alterations were made as per Exhibits E to 813 does not belong to the issue raised”.
See: the case of: GEORGE Vs DOMINION FLOUR MILLS LIMITED (1963) 1 SC 1127′,.
There is no doubt that the learned trial Judge failed to properly consider the State of the pleadings and thereby wrongly applied DOMINION FLOUR MILLS Case supra and therefore there is a miscarriage of Justice.
When a trial court commits an error of law which is fatal the court of Appeal will intervene and set aside the Judgment. See: NNA JIOFOR Vs UKOND (1986) 4 NWLR (PT.36) 505 AT 525 C – D. Further more a Judge that is riddled with the like of perversity should not be allowed to stand. See: ADIMORE Vs AJUFO (1988) 3 NWLR (PT.80) 1 AT 15 – 16 ODIBA Vs AZEGE (1988) 9 NWLR (PT.560) 370 AT 380
PARAGRAPHS D-E Where it was held that a perverse decision is one which ignores the facts or evidence and when considered as a whole amount to a miscarriage of Justice.
It is the primary duty of the trial court to evaluate and ascribe probative value to admissible evidence be it oral or documentary and the appeal court will not ordinarily interfere with the evaluation or appraisal carried out by the lower court except same is perverse. IGBEKE Vs EMORDI (2010) 2 NWLR 434 PAGE 59.
Failure of the trial court to consider the issue of payment on terms this is a crucial issue for that matter, is fatal to the judgment and liable to be set aside. ODIBA Vs AZEGE (1998) 9 NWLR (PT. 566) 370 AT 384 PARAS A-8.
This issue is therefore is resolved in favour of the appellant.
ISSUE 2 Having found and held that the parties entered into a contract of conditional sale on credit was the trial Judge right in giving Judgment in favour of the respondent?
The learned counsel to the appellant argued that the learned trial Judge was wrong to have entered Judgment in favour of the Respondent. He Emphasized that a Judgment of court of law must demonstrate and reflect issues properly raised in the pleadings and resolved by the court. He relied on OJAGBUE Vs ATIE NNUMBIS (1972) 1 DU NLR (1990) Respondent. He contended that a Judgment that runs contrary to this must be set aside. He then referred to evidence and pleadings of both parties that parts supplied by the Respondent at his Warri office were subject to payment by the Lagos office after scrutiny and confirmation of the invoices submitted in the instant case Exhibit A – A13.
He referred to the admission of the Respondent at Page 18 of the Record wherein under cross examination the Respondent has this to say –
“The Lagos office of the company had the final say to pay me what was owed. At the time I supplied parts I do so to the defendant agents in Warri. The payment to me was subject to approval from the Lagos office”.
I have read the evidence and Judgment of the lower court. The trial judge found inter alia that:
“The implied or inferred clause is this thpe of contract was that before Payment would be made it would be reviewed and scrutinized by the Defendant Lagos office”
Having found as above the trial Judge was bound to hold that to the sale on credit is being made subject to approval of the appellant in his Lagos office.
The part of the judgment having not considered properly the evidence and his findings is perverse.
See: ODIBE VS AZEGE SUPRA; UKATA Vs NDI NAEZE (1991) 4 NWLR (PT. 499) AT 276 PARAGRAPHS C-D.
It is wrong for the trial Judge to put any weight on Exhibit D as a admission against interest.
SEE: A.G. OYO STATE VS FAIR LAKES HOTELS (M2) (1989) 5 NWLR (PT.121) 255 AT 283 PARAGRAPHS F.
This court in the circumstances has no alternative than to resolve the issue in favour of the appellant.
ISSUE 3 Whether the trials Judge evaluates or evaluate adequately the evidence adduced by the parties in this case?
The appellant in his brief submitted that the trial Judge did not evaluate adequately the evidence adduced. He submitted that the Judgment is against the weight of evidence. He said the balance ought to have been in favour of the appellant (as Defendant). He relied on MOGAJI & ORS Vs ODOFIN (1978) 4 SC 9D1 AT 73.
He said the trial Judge failed to apply the principle enunciated in ODOFIN’S case Supra. He reviewed the evidence tendered thus:
“The Respondent pleaded and led evidence as to the supply of marine spare parts and that the sum of N137,520.00 (One hundred And thirty seven naira, Five hundred and twenty Naira) being the balance of the total sum of spare parts supplied as evidenced in Exhibits AI – A3, which are the original invoices against the Respondent’s position, the appellant pleaded and adduced Evidence to substantiate the (sic) it was no longer indebted to the Respondent, in that the outstanding amount if any had been paid vide Exhibits E1- 813 after a joint exercise of price review or reconciliation carried out by the Respondent and DW2 the authorized officer of the appellant of its Lagos office.”
He said that from the above state of pleadings and evidence tendered by the parties, if the trial Judge had placed the two sets of facts on the imaginary scale she would not have found for the Respondent. He urged the court to allow the appeal.
I have no hesitation to hold that the trial Judge failed to apply the principle of law enumerated in ODOFIN’s case supra. If she had properly evaluated the evidence of parties she would not have given Judgment to the Respondent.
A Plaintiff succeeds on the strength of his case and not on the weakness of the case of the defence.See: KAMARU & ORS Vs OGUDE & ORS (1972) 1 SC 182 TANKO Vs ECHENDU 2010 (Pt.1) SC 341
The law is clearly established that where a court of trial fails to make findings on material and important issues of fact by brushing them aside or approaches the Evidence called by the parties wrongly (as it is in the instant case) the appellate court will have no alternative than to act accordingly as the circumstance dictate. See: MERENIKEJI Vs ADEGBOSIN 2003 4 SC (PT. 1) 107 applied with Appeal in OLODO & 10 ORS Vs JOSIAH & 11 ORS (2010) 12 SC (PT.111) 57 from the foregoing I resolve the issue in favour of the appellant.
This appeal being meritorious is therefore allowed. The Judgment of the trial Court delivered on 13th day of May 1997 in favour of the respondent is hereby set aside and in its place I dismiss the case of the Respondent as Plaintiff. There shall be no order as to cost.
HON. JUSTICE AMIRU SANUSI, J.C.A.: The judgment prepared by my learned brother Shoremi, JCA was made available to me earlier than now. Having gone through the said judgment, I too find merit in the appeal as would justify the setting aside of the decision of the lower court. I accordingly do same. The appeal therefore succeeds and is accordingly allowed by me. I decline to award any costs.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I read before now, the Judgment delivered by my learned brother G. O. SHOREMI JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. I too allow the appeal and set aside the judgment of the trial court. I also make no order as to costs.
Appearances
For Appellant
AND
For Respondent
