JURASSIC COMMUNICATIONS NIGERIA LIMITED v. ABIODUN NIMZE ADEYEYE
(2019)LCN/12512(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/J/329/2016
RATIO
CONTRACT: A CLAIM OF MONEY HAD AND MONEY RECEIEVED
“I agree with the submission of learned senior counsel that the claim of the Appellant before the trial Court is for breach of contract – a claim for money had and received and not on crime as posited by the trial Judge. What amounts to money had and received has been expounded in F.B.N Plc v Ozokwere (2014) 3 NWLR (Pt 1395) 439 at 472 paras D-E. In the case of Aerofot v UBA Ltd (1986) 3 NWLR (Pt. 27) 183 at 189 the apex Court enunciated instances where action for money had and received could avail the plaintiff. One instance is ‘whenever conversion lies and money has been received on behalf of the plaintiff by the defendant to restore such’ money to its true owner.” PER ADZIRA GANA MSHELIA, J.C.A.
COURT AND PROCEDURE: WHERE AN ACTION IS NOT PROPERLY CONSTITUTED FOR LACK OF PARTIES
“It is also the law that where an action is not properly constituted for want of proper parties, the Court cannot completely deal with the matter in controversy, that is to say the Court will not be in the position to adequately determine the rights and interests of the parties since the proper parties are not before the Court. See G & T Invest Ltd v Witt & Bush Ltd (2011) 8 NWLR Pt. 1250 page 532 paras A & C. That a party whose presence is essential for the effectual and complete determination of the issues before the Court ought to be made a party in the suit. Counsel argued that a necessary party is such in whose absence the whole claim cannot be effectually and completely determined. Reliance placed onBagwai v Goda (2011) 7 NWLR (Pt. 1245) 50 paras D & E and PDP v Abubakar (2004) 16 NWLR (Pt. 900) 455 at 467 paras F & H.” PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
JURASSIC COMMUNICATIONS NIGERIA LIMITED Appellant(s)
AND
ABIODUN NIMZE ADEYEYE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Plateau State High Court of Justice, delivered on the 29th day of April, 2016 by Hon. Justice C.L. Dapub J. in Suit No. PLD/J305/2010.
The Appellant herein as Plaintiff at the lower Court took out a writ of summon under the undefended list procedure against the Respondent. Upon being served with the processes, the Respondent filed a Notice of intention to defend. The suit by the order of Court was subsequently transferred to the general cause list on the 13th April, 2011. Consequently, the Court ordered parties to file their pleadings and by the statement of claim filed on the 7th June, 2011 plaintiff sought the following reliefs:
(1) The sum of N7,462,380 (seven million, four hundred and sixty two thousand, three hundred and eighty naira) only being the balance of money for sales of Recharge Cards of different network from April 2009 to October, 2009 which he withheld and neglected and or refuse to remit to plaintiff.
(2) Interest on the sum of N7, 462,380 (Seven Million, four hundred and sixty-two thousand, three hundred and eighty naira) only at the rate of 10% per annum from the date of Judgment until liquidation.
(3) General damages of N3, 000,000.00 (Three Million Naira) only.
(4) The cost of this action.
The Respondent in his defence denied liability and counter-claimed against the Appellant as follows:
(1) The total sum of N402, 000.00 being the total sum of money the plaintiff used the police to forcibly make the Defendant withdraw from his Bank Accounts at Intercontinental Bank, Union Bank and Eco Bank all in Jos, and which money the plaintiff through the police took away from the Defendant.
(2) The sum of N300, 000 estimated value of goods the plaintiff through the police forcibly carted from the Defendant’s Boutique in Jos.
(3) The sum of N1, 000,000.00 being general damages for unlawful detention at the ‘C’ Division of the Nigeria Police, Jos.
(4) The sum of N200, 000.00 being general damages for the annihilation and total ruining of Defendant’s Boutique business which resulted in loss of revenue for over two (2) years now.
A brief summary of material facts as presented by the plaintiff is that he employed the Respondent/Defendant as a shop attendant in July, 2006 following an application for employment as contained in his application form, Exhibit 14. That sometimes in 2009, the Respondent/Defendant was moved to the marketing department and subsequently was made a sales representative. As a sales representative, his duties were as follows:
(a) To make a requisition for stock recharge cards of the various network from store keeper.
(b) After collection of stock by the sales representative, it is recorded in the dispatch book which is confirmed by the store keeper.
(c) Thereafter an invoice/requisition note is raised for the stock collected the original goes to the sales representative while the duplicate is kept in the office.
(d) After sales, the sales representative remits the money realized from the sales to the cashier who confirms the amount and same will be recorded in the cashbook in the presence of sales representative.
From the month of April, 2009 to October, 2009, however, it was observed that the Defendant now Respondent was not remitting monies commensurate to the amount of stock he collected. The management then queried him for the shortage of returns. His excuse was that most of the customers were yet to pay up for the stocks supplied and he therefore asked for time to recover same. Despite his promise to recover all the outstanding debt, the Respondent still failed to do so. Thereafter, due to some financial difficulty the plaintiff now Appellant was experiencing, the Managing Director requested for internal audit of the accounts and afterwards invited an external auditor who also audited the accounts. All the stocks collected and those in the possession of all the sales representatives including the Respondent as well as the stocks the company had with three banks involved in the Appellant’s distribution office namely: First City Monument Bank, Guarantee Trust Bank and Skye Bank were all audited. That in the course of the auditing, it was discovered that the total balance to be remitted by the respondent is the sum of N7,462,380 from April 2009 to October, 2009 and the sales record and cash remitted by the Respondent covered the period of April, 2009 to October, 2009 as reflected in the Audit Report.
As a result of the shocking revelation of the outcome of the audit, the Appellant stopped giving stocks to the Respondent and subsequently recovered some of the unsold stock worth N612,200.00 (six hundred and twelve thousand, two hundred Naira) only from the Respondent. That Respondent failed to remit the remaining sum which amount to N7,462, 380,00 (seven million, four hundred and sixty-two thousand, three hundred and eighty Naira) only, as he has converted same to his personal use against the right of the Appellant and all effort to recover same proved abortive.
The pleaded case of the Respondent was as follows:
That as Sales Representative of the Appellant he collects stocks from the Appellant, sell some and remit the proceeds to the Appellant. That it is the ledgers of the Appellant that gives a true picture and reflects the authentic transaction of the Respondent. That from his ledger account with the Appellant, he balanced his account and made all remittances for stocks issued to him by the Appellant. That the Appellant through its Auditors and Manager (one Samuel Mamdu) had subjected all his ledgers to series of Examination and no discrepancy or shortages were discovered against him. That these ledgers are in the custody of the Appellant and the Appellant was put on Notice to produce same at the trial. That the Appellant used the Police to detain and forcibly took the Respondent to his Banks to withdraw a total sum of N402, 000.00 which the Appellant through the police took away.
At the trial, the Appellant called a total of four (4) witnesses who testified as PW1 – PW4 and tendered in evidence eighteen (18) Exhibits which were admitted and marked Exhibits 1 – 18 respectively. The Respondent on the other hand called only one witness who testified as DW1.
At the conclusion of the trial, the learned trial Judge in his considered judgment found that the Appellant failed to prove its case against the Respondent and dismissed the claim. The learned trial Judge however found the Respondent/counter claimant was entitled to the sum of N402, 000 which the Appellant through the Police forcibly withdrew from his account.
The Appellant being dissatisfied with the judgment of the lower Court filed his Notice and Grounds of Appeal on 27/7/2016 containing eight (8) grounds of appeal.
In compliance with the rules of Court, parties exchanged their respective brief of Argument. Appellant’s Brief of Argument settled by Solomon Umoh SAN, N.D Gwaison Esq, Yetunde Nze (Mrs) and F.J. Kumsat Esq was dated 20/10/2017 and filed on 23/10/2017 but deemed properly filed and served on 28/11/2017. The Respondent’s Brief of Argument settled by Dr. H.S Ardzard Esq, S.D Lafat Esq and A.N. Musa Esq., was dated 22/12/2017 and filed on same date, while the Appellant’s Reply brief was dated 21/03/2018 and filed on same date but deemed properly filed on 22/03/2018.
When the appeal came up for hearing both counsel adopted their respective briefs of Argument. Appellant’s counsel urged the Court to allow the appeal. While Respondent’s counsel urged the Court to dismiss the appeal.
The Appellant’s Brief of Argument contained four issues for determination as follows:
1. Considering the averments as well as the reliefs sought in the plaintiff’s pleadings, whether the learned trial Judge was right when he found and held that the plaintiff’s case condescends on criminal allegation and the standard of proof requires is proof beyond reasonable doubt. (Distilled from Grounds 2 and 7 of the Appellant’s Notice of Appeal).
2. Whether the learned trial Judge was right in rejecting and not relying on exhibits 16 – 18 in the course of writing his judgment, having regards to the fact that the said documents were pleaded and were inadmissible form as well as are relevant to the facts in issues and had earlier been admitted in evidence in the course of trial (Distilled from Grounds 3 and 4).
3. Whether the failure of the Respondent to remit the balance of the monies realized from the sale of the stock collected by him to the plaintiff amounts to a breach of the contract for money had and received i.e whether the Appellant proved its case before the lower Court to entitle it to judgment. (Distilled from Grounds 1, 5 and 8 of the Appellants Notice of Appeal).
4. Whether having regards to the state of the pleadings exchanged by the parties as well as the evidence adduced in support, the learned trial Judge was right in awarding the sum of N402,000.00 (Four Hundred and Two Thousand Naira) only. Distilled from Ground 6 of the Appellant’s Notice of Appeal.
The Respondent on the other hand distilled two issues for determination as follows:
1. Whether the learned trial Judge was right in finding that the Evidence adduced by the Appellant was not sufficient to entitle it to judgment against the Respondent. Distilled from Grounds 1, 2, 3, 5, 7 and 8.
2. Whether the learned trial Judge was right in arriving at a finding that Respondent?s counter claim succeeded. Grounds 4 and 6.
I have carefully examined the issues raised by both parties. I am inclined to adopt the issues raised by the appellant being the person who filed the appeal. Issue one of the Respondent can be taken along with issues one and three formulated by the Appellant. While issue two of the Respondent will be taken along with issue 4 raised by the Appellant. Issue 2 raised by the Appellant will be considered alone.
ISSUES ONE AND THREE
In arguing the issue learned senior counsel for the Appellant submitted that issue one should be answered in the negative while issue two should be answered in the affirmative. Learned Senior Counsel submitted that from the averments as well as the reliefs sought by the Appellant in its pleadings that the case of the Appellant before the lower Court was in all ramifications civil as there is absolutely no allegation of crime in the entire gamut of the case set up by the Appellant as plaintiff before the Court. That in order to ascertain whether the case of the Appellant condescends on criminal allegation as held by the learned Judge or not, a look into the averments in the pleadings of the Appellant as well as the reliefs sought by it is necessary. Reliance placed on Abubakar v Bebeji Oil Ltd (2007) 29 NSCQR page 1675. Counsel submitted that calm perusal of statement of claim reveals that the claim of the Appellant before the lower Court is for money had and received. That the case for the Appellant is essentially to recover the balance of monies realized from the sale of the stocks/goods which the Respondent had failed, refused and or neglected to remit to the Appellant. See pages 70 – 73 of the record.
Counsel submitted that there is nothing criminal about a claim for money had and received. That indeed a claim for money had and received gives rise to a civil cause of action and not criminal cause of action. Learned counsel contended that the finding of the learned trial Judge that Appellant’s case condescends on criminal allegation is not supported by the averments and reliefs contained in the Appellant’s pleading before the lower Court. Counsel urged the Court to set aside the finding.
Learned counsel further submitted that paragraph 24 of the statement of claim (see page 73 of the record) shows that the action of the Appellant before the trial Court is for recovery of the monetary value of stock collected by the Respondent as a sales representative from the Appellant to sell and return the proceeds of sales which Appellant, failed, refused and neglected despite several demands. Paragraph 24 of the Statement of Claim reproduced for easy reference and emphasis. Learned Senior Counsel contended that the claim of the Appellant before the lower Court is for breach of contract ‘a claim for money had and received and not on crime as posited by the trial Judge. Reference made to F.B.N. Plc v Ozokwere (2014) 3 NWLR (Pt. 1395) page 439 at 472, First Bank of Nigeria Ltd v A.P Ltd (1996) 4 NWLR (Pt. 433) 448 and Chartered Bank Ltd v First African Trust Bank Ltd (2005) LRELR 11350 which expounded what amounts to ‘money had and received.’
That where a party to a contract establishes by evidence before the Court as in the instant case, that the other party has committed a breach of the contract, he is entitled to claim damages. That the main object of awarding damages for breach of contract is to compensate the injured party and put him back in the position he would have been if the contract had been performed. See Cameroon Airlines v Otutuizu (no citation provided by counsel), Shell B.P v Jammal Engineering Ltd (1974)4 SC 33, MTN (Nig.) Comms Ltd v Sadiku (2014) 17 NWLR (Pt. 1436) 382 at 419, Aluminum Manufacturing Co. (Nig) Ltd v V.O.N. Ltd (2010) 7 NWLR (Pt. 1192) 97. Counsel also referred to the case of AEROFLOT v U.B.A Ltd (1986) 3 NWLR (Pt 27) 188 at 189, where the Supreme Court enunciated instances where action for ‘money had received’ could avail the plaintiff. To further drive home the point that the case of the Appellant before the lower Court was for breach of contract i.e for money had and received. Reference made to paragraphs 8, 9, 12, 13, 14, 16 17, 18, 19, 20, 21, 22 and 23 of the statement of claim.
It was further submitted that Appellant led evidence in support of the above averments through PW1, PW2 and 3. See pages 75 – 84 of the record. Counsel set out the salient facts at pages 12 – 13 of the Appellant’s brief of Argument. That Appellant’s case as presented and proved before the trial Court established a breach of contract by the Respondent which Appellant is entitled to be compensated in damages for money had and received. He urged Court to so find and hold. That the mere fact that the statement of the Respondent which he made during police investigation was tendered in evidence to demonstrate that the Respondent admitted owing the Appellant does not in any manner make the case of the Appellant criminal in nature. That the provisions of Section 135 of the Evidence Act only applies where there is a specific allegation of crime in the pleadings. See Omorhirhi v Enatevwere (1988) 1 NWLR (Pt. 73) 746 at 748. Learned senior counsel contended that Section 137(1) of the old Evidence Act is in pari materia with S.135(1) Evidence Act 2011. That since there is no specific allegation of crime in the pleadings of the Appellant before the trial Court, the findings of the trial Court that the case of the Appellant condescend on crime would appear to have been arrived at in error.
Furthermore, counsel submitted that assuming though not conceding that some of the averments in the pleadings of the Appellant at the lower Court raised allegation of crime, it is submitted that such should not be the justification for the finding of the learned trial Judge that for the Appellant’s case to succeed, the Appellant must prove his case beyond reasonable doubt. That based on the doctrine of severance, the purported averments containing the criminal allegation ought to be severed from the civil averments if same is done, the civil averments can sustain the Appellant’s case and the Appellant’s case will succeed. Reliance placed on Abdullahi v Gov. Kano State (2014) 16 NWLR(Pt.1433) 213 at 240 paras C & F, 247 paras B & C, Omoboriowo v Ajasin (1984) 1 SCNLR 108, Nwobodo v Onoh (1984) 1 SCNLR 1. Counsel also argued that crime or anything untoward does not become an issue except and until it is pleaded. See R.E.A.N. Plc v Anumnu (2003) 6 NWLR (Pt. 815) 52 at 105 paras D-E, Okoli v Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1053) 37 at 61 paras G. That since there is no averment in the pleadings of the Appellant that raises criminal allegation, it is humbly submitted that the Appellant’s case does not condescend on criminality, thus the standard of proof is not proof beyond reasonable doubt but on the balance of probability or on preponderance of the evidence adduced.
That the finding of the lower Court that the case of the Appellant is hinged on criminality and that the standard of proof required of the Appellant is proof beyond reasonable is erroneous and ought to be set aside. That in making the finding, the learned trial Judge went outside the pleadings of the Appellant. That it is the settled position of the law that parties and the Courts are bound by their pleadings. See Pollyn v Miejene (2012) 14 NWLR (Pt. 1321) 567 at 579 paras D-F and Oyekanmi v NEPA (2000) 15 NWLR (Pt. 690) 414 at 439. That the wrong complained of by the Appellant to have been done by the Respondent against it arose exclusively from a breach of contract. Counsel submitted that Respondent’s counsel dwelt heavily and erroneously argued on the elements of the tort of conversion which did not form part of the Appellant’s claim at the lower Court.
Learned counsel submitted that a tort and a breach of contract may result from single wrong in which case the same facts will give rise to both breach of contract and tort, thereby giving right to action in both contract and tort. SeeNigeria Bottling Co. Ltd v NGONADI (1985) 1 NWLR (Pt. 4) 739 SC, Amadi v Essien (1994) 7 NWLR (Pt. 354) 91 CA and Abusumwan v Merchantile Bank Nig. Ltd (1987) 3 NWLR (Pt. 60) page 196 SC. According to Senior Counsel, Appellant proved by credible evidence wherein Appellant tendered Exhibits 1, 2-16 which is the audit report and records books of the Appellant to establish that the Respondent received goods as a sales representative but failed to remit same to the Appellant which is contrary to their terms of contract after several demands on him, entitles the Appellant to judgment for a breach of contract for ‘money had and received.
He urged Court to so hold. That an action for ‘money had and received is one and the same with an action for conversion. That it has same element with tort of conversion. See Aeroflot v UBA Ltd (supra) where the learned Justices of the apex Court held as follows:
The Common Law action for money had and received always been used.
(a) Whenever conversion lies and money has been received on behalf of the plaintiff by the defendant to compel the defendant to restore such money to its true owner. That the case of Appellant at the lower Court is for money had and received as such Appellant is entitled to the grant of all the reliefs sought.
Learned counsel further submitted that Appellant at the trial Court established through credible and uncontroverted evidence that the Respondent was an employee of the Appellant saddled with the responsibility to sell recharge cards in bulk and return the proceeds to the Appellant but Respondent collected recharge cards, sold same but failed, refused and neglected to return the proceeds of the sale i.e the monetary value of the stocks collected by the Appellant. That the Appellant in proof of its claim gave oral evidence and also tendered several record books of accounting which revealed that the Respondent indeed received stock from the Appellant and also Exhibit 1 i.e the Audit Report which revealed in unequivocal terms that the defendant is yet to refund to the Appellant the value of stock collected and sold by him. That Appellant by the evidence presented before the lower Court has sufficiently discharged the burden required of him by Law which is proof by preponderance of evidence and thus entitled to judgment. That the trial Court judgment dismissing the case of Appellant is against the weight of evidence. That the decision of the lower Court did not reflect a proper evaluation of the evidence adduced as well as exhibits tendered by the Appellant in establishing his case against the Respondent. That the Evidence of the Appellant before the trial Court and exhibits tendered therein, were neither controverted nor challenged by the Respondent by way of credible evidence.
See CPC v INEC (2011) 18 NLWR (Pt. 1279) 493 at 540 paras C & D. Counsel contended that all through the gamut of this case, the Respondent never denied nor placed before the trial Court any scintilla of evidence to controvert the claim of the Appellant. That under cross-examination, the Respondent admitted as much that he was working with the Appellant, that he supplied goods to customers on credit and same customers pays money into his account. Portion of Respondent’s evidence (DW1) was reproduced at page 22-23 of the Brief. Learned Senior Counsel submitted that Exhibits 2 & 12 are record books of the Appellant used by the auditor to arrive at his findings that the Respondent has unremitted funds. That evidence of the auditor amongst others was neither controverted nor refuted by the Respondent. That Appellant refuted the existence of any ledger used by the auditor. That the onus lies on Respondent to prove existence of the ledger, since he revealed under cross examination that the said ledgers were his, wherein he said ‘I transmitted them into my ledgers, my ledgers are audited with green biro to show what I have on the ledgers.’
Furthermore counsel submitted that Appellant called PW4 who tendered Exhibits 15 -18 the statement of the Respondent which content (especially Exhibit 18) was corroborated by the withdrawals made at the Bank. Counsel contended that it is well settled law that Court can act on the statement of a person where such statements are consistent with other facts being sustained and proved. Cited in aid Onyenye v State (2012) 15 NWLR (Pt. 1324) 586, at 619 paras D – F. He urged Court to resolve issues one and three in favour of the Appellant.
In response learned counsel for the Respondent urged the Court to answer the question posed under issue one in the affirmative. Learned counsel submitted that from the pleadings of the Appellant particularly paragraphs 3 and 4 of the statement of claim contained on page 70 of the Record, it is without doubt that the Respondent was an employee of the Appellant. That PW1 attested to this fact as well as PW3. That from the evidence adduced by the Appellant, it was in this capacity as an employee that Respondent was issued various stocks by the Appellant and that after sales of such stocks, the Respondent purportedly failed to remit the proceeds. That this is the kind of conduct defined under Section 311 of the Penal Code as Criminal Breach of Trust.
That the case of the Appellant against the Respondent was a case of an employer against an employee who was entrusted with company property i.e stocks to sell and remit the proceeds to the employer but after such sales, the employee failed to remit the said process. That both PW1 and PW3 testified that the Appellant reported the Respondent to the police because it knew that its claim against the Respondent bordered on allegation of crime. That PW4 a Police Officer confirmed under cross examination the arrest of the Respondent at the instance of the Appellant, the taking of the statement and the recovery of some money from the Respondent’s Bank Account. Counsel submitted that the Appellant’s case was not that it gave the Respondent money but the Respondent failed to utilize same as directed. That Appellant’s case could not have been for money had and received. Counsel submitted that the trial Judge was thus not wrong to have found that the case of the Appellant against the Respondent bordered on allegation of crime and that the standard of proof required of the Appellant was proof beyond reasonable doubt.
That assuming without conceding that the learned trial Judge was wrong in finding that the Appellant’s claim bordered on criminal allegation, by the provisions of the Evidence Act 2011, the onus of proof was on the Appellant who was plaintiff at the lower Court to prove his case against the Respondent. Reliance placed on Section 131 (1) and (2) of the Evidence Act andPurification Technique (Nig) Ltd v Jubril (2012) All FWLR Pt. 642) 1657 and 1687 paras B-C wherein the apex Court reiterated the principle of Law that he who asserts must prove. See also Amadu v Yantumaki (2012) All FWLR (Pt. 626) 503 at 517 paras B-D. That for the Appellant to succeed in its claim against the Respondent, it must prove the following:
(1) That Respondent received the quantity and value of stocks alleged from the Appellant and;
(2) That the Respondent sold the said stocks, received payments for same but failed to remit such amounts to the Appellant.
Learned counsel submitted that in an attempt to prove that the Respondent received stocks of various networks from it, the Appellant adduced the following evidence.
That through PW1, Exhibit 1 was tendered a purported Audit of Respondent’s transactions. That through PW2, the Appellant also tendered Exhibit 13 the purported Investigation Report of the transactions of the Respondent.
According to counsel Exhibits 1 and 13 formed the basis for which the Appellant arrived at as a conclusion that the Respondent failed to remit all the proceeds of stocks he collected. That for the said Exhibits 1 and 13 to be of any value to the case of the Appellant, they ought to show the following:
1. The respective quantity of the stocks of each network collected by the Respondent.
2. The value of each quantity of these respective stocks.
3. The amount remitted by the Respondent.
4. The balance unremitted.
That the said Exhibits 1 and 13 failed to contain some of the vital information itemized above. Learned counsel referred to some exhibits tendered which did not bear signatures of the Respondent that he collected the stocks as alleged. Reference particularly made to dispatch books i.e Exhibits 2- 6. That the anomaly is visible in exhibits 4 and 6 respectively.
It was further submitted that assuming but without conceding that the Appellant proved that the Respondent received the quantity and value of stocks alleged, it is submitted that the Appellant failed to prove that the Respondent sold those stocks and failed to remit the proceeds. That Respondent in his defence stated that he made remittance for all the stocks he collected. Learned counsel also complained that notice to produce was served on Appellant but it failed to produce the ledgers required. Counsel urged Court to invoke Section 167(d) of Evidence Act. Cases of Oceanic Securities International Limited v Alh. Basher Olaide Balogun and 4 Ors (2012) All FWLR (Pt. 463), Nigerian Advertising Services Ltd & Anor v UBA Plc (2005) All FWLR (Pt. 284) 275 @290 and Federal Mortgage Finance Ltd v Hope Effiong Ekpo (2005) All FWLR (Pt 248) 1667 @ 1684 were cited in support. The Appellant having failed to produce the ledgers, the lower Court was right to have found and held that these ledgers were unfavourable to the Appellant who refused to produce same. Reference was also made to Exhibits 16, 17 and 18 to show that the Respondent confessed to the police the commission of fraud.
That lower Court was right to disregard the purported admission or confession because the process of obtaining the purported admission or confession was not voluntarily given. That even if the Doctrine of severance was applied the Appellant would still not have proved its case against the Respondent. That Appellant alleged that the learned trial Judge went outside the pleadings of parties. Counsel stated that the position of the Law that he who asserts must prove. See Nigerian Army v Yakubu (2013) All FWLR (Pt. 677) 592 and 602 paras F – G. On the allegation that the learned trial Judge did not properly evaluate the evidence adduced, counsel maintained that the record show that learned trial Judge considered the evidence adduced and exhibits tendered before him in arriving at his verdict. See Odunukwe v Ofomata (1999) 6 NWLR (Pt. 607) 425. That the learned trial Judge examined the totality of the evidence adduced before him and the Exhibits tendered before arriving at a decision against the Appellant.
In the reply brief, learned counsel for the Appellant responded to the points raised by the Respondent in respondent’s brief. The relevant points will be referred to in the course of the judgment where necessary.
The complaint of the Appellant under issue one is whether the learned trial Judge was right when he found and held that the plaintiff’s case condescends on criminal allegation and the standard of proof required is proof beyond reasonable doubt. In order to ascertain whether the case of the Appellant condescend on criminal allegation as held by the learned trial Judge it is necessary to carefully peruse the pleadings of the Appellant as well as the reliefs sought.
A calm perusal of the statement of claim which includes the reliefs sought reveal with certainty that the action of the Appellant before the trial Court is for recovery of the monetary value of stock collected by the Respondent as a sales representative from the Appellant to sell and return the proceeds of sales. Apparently Respondent failed, refused and neglected to hand in the Appellant’s monetary value of its stock after several demands.
I agree with the submission of learned senior counsel that the claim of the Appellant before the trial Court is for breach of contract – a claim for money had and received and not on crime as posited by the trial Judge. What amounts to money had and received has been expounded in F.B.N Plc v Ozokwere (2014) 3 NWLR (Pt 1395) 439 at 472 paras D-E. In the case of Aerofot v UBA Ltd (1986) 3 NWLR (Pt. 27) 183 at 189 the apex Court enunciated instances where action for money had and received could avail the plaintiff. One instance is ‘whenever conversion lies and money has been received on behalf of the plaintiff by the defendant to restore such’ money to its true owner.
There is no doubt that Respondent was an employee of the Appellant. The pleadings and evidence showed that there was a binding contractual agreement which Respondent breached by failing to remit the balance of monies realized from the sale of the stock to the Appellant. The facts pleaded and evidence can give rise to both criminal and civil actions since Respondent is an employee of the Appellant. However the principle of severance of pleadings is applicable to this case. See Omoboriowo v Ajasin (1984) 1 SCNLR, Abdullahi v Gov Kano State (2014) 16 NWLR (Pt. 1433) 213 at 240 paras C ?F 247 paras B – C and Nwobodo v Onoh (1984) 1 SCNLR 1. Appellant is entitled to pursue the civil aspect of the case, in order to recover the money realized from the sale of the stocks received by the Respondent being the sales representative. The standard of proof is proof on the balance of probabilities or on preponderance of evidence, adduced and not proof beyond reasonable doubt as erroneously held by the trial Court. See Section 134 of the Evidence Act 2011.
The next question to resolve is whether Appellant proved its case to be entitled to the reliefs sought. The appellant in proving its case adduced both oral and documentary evidence. Appellant called four witnesses i.e PW1, PW2, PW3 and PW4 through whom Exhibits 1 – 12 and 13 were tendered. The documentary evidence i.e Exhibits 2 – 6 the dispatch book used to record the quantity of stocks collected/received by the respondent and Exhibits 7 -9 ‘the cash collection book revealed that Respondent as sales representative received stock from the Appellant. Also Exhibit 1 i.e the Audit Report revealed in unequivocal terms that Respondent is yet to refund to the Appellant the value of stock collected and sold by him. The dispatch books and the cashbooks reveals that there is a short fall in the payment by the respondent i.e the value of the stock collected by the respondent is far more than the amount of money paid by the respondent to the cashier as proceeds realized from the sale of stocks. It is therefore not correct as submitted by Respondent’s counsel that Exhibit 1 and 13 only formed the basis for which the Appellant arrived at a conclusion that the respondent has failed to remit all the proceeds of the stocks i.e recharge cards collected.
The learned counsel for the Respondent had argued at length to show that the signature on Exhibits 2 – 6 i.e the dispatch books are not the signature of the Respondent and as such could not be relied on by the trial Court. The Appellant’s counsel rightly stated the correct position of the law on this issue. The position of the Law is that the onus is on the party who dispute a signature that he did not sign same to produce before the Court his authentic signature so that it can be compared with that in dispute. See Babale v Eze (supra) cited by Appellant’s counsel. The Court in that case emphasized that mere dissimilarity is not conclusive evidence and it is not proof that they were not made by the same person. In the instant case the onus was on the Respondent having disputed signing Exhibits 2 – 6 i.e the dispatch books to produce before the Court his authentic signature different from the one in dispute.
Respondent woefully failed to discharge this onus required by law. Respondent needed to produce the authentic signature for comparison with the signature he is denying as not being his signature. Respondent also complained that he did not sign some of the exhibits. I observed in particular the stocks recorded in Exhibit 4 the dispatch book for 30/6/2009, 2/7/2009, 8/7/2009, 27/7/2009, 3/8/2009, 5/8/2009, 6/8/2009, 8/8/2009, 10/8/2009, 12/8/2009, 15/8/2009, 19/8/2009, 22/8/2009, 2/9/2009, 29/9/2009, 30/9/2009 and 3/10/2009 bears name of Respondent but no signature. However, in Exhibit 1 Audit Report for sales record and cash remitted in respect of the Respondent disclosed that cash remittances were made by the Respondent on the various dates reflected above. In absence of any explanation, it would be safe to conclude that the stocks were collected by the Respondent.
The Respondent also complained that he served notice to produce on the Appellant to produce ledger in its possession but failed to produce same at the trial Court. The decision of the Supreme Court in Nweke v State (2017)15 NWLR (Pt. 1587) 120 at 140 paras B – C is apt on this point.
It is trite Law that where a party on whom a notice to produce is served fails to produce document it is the duty of the party serving the notice to adduce secondary evidence of the document in question. Since the Respondent did not adduce secondary evidence of the alleged Ledgers, Section 167(d) of the Evidence Act 2011 cannot be invoked. After all it was the Respondent who asserts the existence of the ledger and the burden is on him to prove same.
The evidence of the Appellant before the trial Court and the exhibits tendered therein, were neither controverted nor challenged by the Respondent by way of adducing credible evidence. The law is that Appellant must succeed on the strength of his case and not on the weakness of the defence. In CPC v INEC (2011) 18 NWLR (Pt. 1279) 493 at 540 paras B-D the apex Court had this to say:
‘From the foregoing, the burden of proof generally in the sense of establishing a case virtually lies on the plaintiff or the initiator of a suit. He who asserts must prove what he asserts i.e qui affirmat non a qui negatincumbatprobat. The party who asserts in his pleadings the existence of a particular fact by adducing credible evidence. IF he fails to do so, his case fails. A plaintiff would be expected to succeed on the strength of his case and not on the weakness of the defence. On the other hand, if he succeeds in adducing evidence to prove pleaded facts, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his adversary to prove that the fact established by the evidence adduced would not on the preponderance of evidence result in the Court giving Judgment in favour of the party.’
As rightly submitted by the Appellant’s counsel all through the gamut of this, the Respondent never denied nor place before the trial Judge any scintilla of evidence to controvert the claim of the appellant. The Respondent who testified as (DW1) admitted as much under cross-examination that he was working with the Appellant, that he supplied goods to customers on credit and some customers pay money into his account. Exhibits 2 & 12 are the records books of the Appellant used by the auditor to arrive at his findings that the Respondent has unremitted funds. The evidence of the auditor amongst others was neither controverted nor refuted by the Respondent.
It is evident from the evidence adduced before the trial Court that the learned trial Judge did not properly evaluate the evidence adduced before him. In this circumstance this Court is in good position to re-evaluate the evidence which I did. Appellant had adduced credible evidence to entitle him to Judgment. As to general damages Appellant is only entitled to N500, 000.00 naira only. I will accordingly resolve issues one and three in favour of the Appellant.
ISSUE TWO
In arguing this issue under consideration learned senior counsel answered same in the negative. Counsel submitted that it was wrong for the learned trial Judge to reject or failed to rely on exhibits 16 & 18 in the course of writing judgment. That exhibits 16 & 18 are Confessional Statement made by the Respondent at the Police Station when he was being interrogated by the police. That the said statements were pleaded by the Appellant and tendered in evidence. That the statements were relevant to the facts in dispute and were corroborated by oral evidence and supported by surrounding circumstances. That the lone reason given by the learned trial Judge for not giving probative value to those statements was that they were not made voluntarily.
Learned counsel submitted that the contents of those especially exhibit 18 is an offshoot of exhibits 16 and 17 and confirmed as well as corroborated the contents of the two earlier statements made by the Respondent in the course of police investigation. That Respondent stated in his statement before the police that some customers of the plaintiff paid money to his personal account for stocks, upon further investigation, it was confirmed that the said monies were actually paid into his account and same was confirmed that the said monies were actually paid into his account and same was withdrawn by the police. Cited in aid Kolawole v State (2015) 8 NWLR (Pt. 1460) 134 at 169 – 170 paras E ?A. That one thing which is striking and consistent in the facts of the above cited case and the facts of this case is that the subsequent recovery of the items stated in the statement corroborates the contents of the statements made by the persons. Reference made to the testimony of DW1 (Respondent) in this case. Counsel submitted that the police upon getting to the bank found the said monies paid by some of the customers of the Appellant for stocks belonging to the Appellant and same was withdrawn and kept by the police as evidence. Counsel further submitted that the police recovered the monies for stock stated in the statement made by the Respondent in the course of investigation suggests that the statement was made by him as no one else would have knowledge of the monies deposited by the customers of the Appellant, hence the issue of voluntariness does not arise.
Counsel submitted that although the said statements were made at the police station, since this is a civil case, the said statement ought to be treated as admission made by the Respondent and not confessional statement which is peculiar to criminal cases. He urged the Court to set aside the decision of the trial Court that jettisoned the said documents in evidence.
In response, learned counsel for the Respondent was of the view that exhibits 16, 17 and 18 could not be said to amount to admission or confession because there was nothing confessional in them. Counsel submitted that even if they could be said to be admission or confessional which is not conceded, the lower Court was right to disregard any purported admission or confession in them. That the process of obtaining the purported admission or confession was not voluntarily made. That what could be deduced from the evidence of PW4 was that to the police, the Respondent must write what satisfied them whether it was the truth or not.
The record disclosed that the statements exhibits 16, 17 and 18 were pleaded in paragraph 10 of the Amended Reply to Defendant’s statement of Defence and Defence to counter-claim.
The said statements were also tendered in evidence without objection through PW4. The PW4 revealed in his evidence in chief that the Respondent personally recorded his statement voluntarily. The finding of the learned trial Judge that the voluntariness of the statements must be subjected to test is unfounded. I agree with Appellant’s counsel that the contents of the statements amounts to admission. The information given was within the personal knowledge of the Respondent. The information also helped the police to recover all the monies stated in exhibit 18. The case of Kolawole v State cited (supra) by Appellant’s counsel is relevant. Accordingly issue two is resolved in favour of the Appellant.
ISSUE FOUR
Learned Senior Counsel in arguing this issue submitted that the learned trial Judge erred in entering judgment for the Respondent with respect to his counter-claim and awarding the sum of N402,000.00 (Four hundred and Two Thousand Naira) only in his favour. That it would appear the decision of the trial Judge dismissing the claim of the Appellant before it greatly influenced the decision entering judgment in favour of the respondent as per his counter-claim. That had the learned trial Judge entered judgment in favour of the Appellant, Respondent wouldn’t have got judgment in respect of the counter-claim, because the said sum of N402, 000.00 (Four Hundred and Two Thousand Naira) only recovered from the Respondent by the Police is part of the money of the Appellant in the custody of the Respondent which he failed to remit to the Appellant.
Learned senior counsel submitted that the Respondent having admitted that the said money was withdrawn from his account by the police and having failed to show that the said money has been given to the Appellant, ought to have proceeded against the police for the said money and not against the Appellant or in the alternative could have joined the police as party to his counter-claim. That the police are proper party to counter-claim of the Respondent at the lower Court. According to counsel it is trite law that in civil actions, all parties necessary for the invocation of the judicial powers of the Court must come before it so as to give the Court jurisdiction to grant the relief sought. See Awoniyi v Registered Trustees of Amorc (2002) 10 NMLR (Pt. 522) SC.
It is also the law that where an action is not properly constituted for want of proper parties, the Court cannot completely deal with the matter in controversy, that is to say the Court will not be in the position to adequately determine the rights and interests of the parties since the proper parties are not before the Court. See G & T Invest Ltd v Witt & Bush Ltd (2011) 8 NWLR Pt. 1250 page 532 paras A & C. That a party whose presence is essential for the effectual and complete determination of the issues before the Court ought to be made a party in the suit. Counsel argued that a necessary party is such in whose absence the whole claim cannot be effectually and completely determined. Reliance placed onBagwai v Goda (2011) 7 NWLR (Pt. 1245) 50 paras D & E and PDP v Abubakar (2004) 16 NWLR (Pt. 900) 455 at 467 paras F & H.
The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and question to be settled unless he is a party. Counsel contended that since the police who are in custody of the Respondent?s money
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are not joined as a party, the vexed question is why should the Appellant who is not the person who withdrew the said money nor is in custody of the said money be the one to return the sum of N402,000.00. That plaintiff cannot give what he does not have. On the whole he urged the Court to set aside the counter-claim.
In response, learned counsel for the Respondent submitted that it was the evidence of the Respondent in paragraph 28 ? 30 of his witness statement on oath contained on page 103 of the record that the Appellant used the police during the period of his detention to forcibly withdraw the total sum of N402, 000.00 from his Bank Accounts in Intercontinental, Union and Eco Banks. That to strengthen the counter-claim PW4 who was the IPO, who investigated the matter told the lower Court that he was the one who took Respondent to the Bank while Respondent was in detention, and PW3 was also with them. That Appellant still has the Defendant?s monies with it which was forcefully withdrawn from the Respondent?s personal accounts with the help of the police. Counsel submitted that the police was not a necessary party to the counter-claim.
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That the counter-claim could effectively be determined without the presence of the police. See A.P.C v P.D.P (2015) All FWLR (Pt. 791) 1493 at 1542 para A.
According to counsel whoever was in custody of the money withdrawn was of no moment as it was the Appellant who orchestrated the withdrawal of the money from the Respondent?s account and even followed the police to the Bank to withdraw the money. Counsel contended that police acted as Agents of the Appellant in this regard and the position of the law is clear that where a principal is disclosed in any transaction the Agent bears no liability. See Uwah v Akpabio (2014) All FWLR (Pt 738) 886 at 899 paras B ?C. That the conduct of the Appellant in engaging the police to forcibly withdraw money from the Respondent?s accounts in this transaction tantamount to police acting as Agent of the Appellant. He urged the Court to hold that police was not a necessary party to the counter-claim of the Respondent and that lower Court was not wrong in finding that the counter-claim succeeded.
The question to be resolved under this issue is whether Respondent has proved his counter-claim.
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Basically what Respondent is claiming is the money forcibly recovered from his accounts by the police, during investigation. From the record and evidence adduced, Respondent did not state whether the money was in possession of the Appellant or the police. I agree with Appellant?s counsel that based on the facts and circumstances of the case, Police is a necessary party to the counter-claim. Who is a necessary party? A necessary party to an action is one in whose absence the question submitted for determination cannot be completely and effectually settled. A necessary party is one who is bound by the decision in the matter, someone whose presence is necessary as a party. See Obarezi v Ilozor & Anor (2010) LPELR ? 4667 (CA); Babayeju v Ashamu (1998) 9 NWLR (Pt. 567) 546 at 555 SC; Lamido v Turaki (1999) 4 NWLR (Pt. 600) 578, Green v Green (1987) 3 NWLR (Pt 61) 480. In the instant case, it is necessary to join the police so that it could be bound by the result of the counter-claim. It is not correct to say that police is an agent of the Appellant. The police is an agency of Federal Government of Nigeria.
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See Sections 214 ? 216 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is my humble view that the counter-claim not being properly constituted to enable Court invoke its jurisdiction to hear and determine same, ought to be struck out. Issue four is similarly resolved in favour of the Appellant.
Having resolved all the issues in favour of the Appellant, I hold that this appeal is meritorious and succeeds. Appeal allowed. The Judgment of the High Court Plateau State delivered on 29/4/2016 by Dapub J, in Suit No. PLD/J305/2010 is hereby set aside. In its place I enter Judgment in favour of the Appellant as per reliefs A and B reproduced supra. Relief C is granted but the amount is reduced to N500, 000.00 as general damages. The counter-claim of the Respondent not being competent is struck out. For avoidance of doubt, the reliefs granted are as follows:
(a) The sum of N7,462,380.00 (Seven Million, Four hundred and Sixty-Two Thousand, Three Hundred and Eighty Naira) only being the balance of money for sales of Recharge Cards of different network from April, 2009 to October, 2009 which he withheld and neglected or refused to remit to plaintiff.
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(b) Interest on the sum of N7, 462,380.00 (Seven Million Four Hundred and Sixty-two Thousand, Three Hundred and Eighty Naira) only at the rate of 10% per annum from the date of Judgment until final liquidation.
(c) General damages of N500, 000.00 (Five Hundred Thousand Naira) only.
Parties to bear their own costs.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the judgment of my learned brother, Adzira Gana Mshelia, PJCA. I agree with the conclusion reached.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the lead judgment of my learned brother ADZIRA GANA MSHELIA, J.C.A. (PJ) and I am in agreement with him in both his reasoning and conclusion in the appeal.
I also abide all my learned brother’s orders including that as to costs.
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Appearances:
Solomon Umoh, SAN with him, E.O. Oyadiji, Esq., Yetunde Nze, Esq., F.J. Kumsat, Esq. and I.G ChristopherFor Appellant(s)
Dr. H.S. Arzard, Esq. with him, A.N. Musa, Esq.For Respondent(s)
Appearances
Solomon Umoh, SAN with him, E.O. Oyadiji, Esq., Yetunde Nze, Esq., F.J. Kumsat, Esq. and I.G ChristopherFor Appellant
AND
Dr. H.S. Arzard, Esq. with him, A.N. Musa, Esq.For Respondent
