KAURA MOTORS NIG. LTD. v. KEBBI STATE COMMUNITY & SOCIAL DEVELOPMENT PROJECT
(2020)LCN/14274(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, June 04, 2020
CA/K/615/2017
Before Our Lordships:
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
KAURA MOTORS NIGERIA LIMITED APPELANT(S)
And
KEBBI STATE COMMUNITY AND SOCIAL DEVELOPMENT PROJECT RESPONDENT(S)
RATIO
WHETHER OR NOT THE ASSESSMENT AND CREDIBILITY OF WITESSES IS THE PRIMARY FUNCTION OF THE TRIAL COURT
It is settled law that assessment and credibility of witnesses is the primary function of the trial Court which had the singular opportunity of seeing and observing the witnesses. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
It has indeed been held that an appellate Court reviewing oral evidence of a trial Court would be entering an arena within the exclusive domain of the trial Court especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses. See Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Kaduna State High Court, Coram Hanatu A.L. Balogun delivered in favour of the Respondent, as Plaintiff, on the 17th day of January, 2017 in Suit No. KDH/KAD/825/2013. Aggrieved by the judgment, the Appellant filed a Notice of Appeal on the 6th day of February, 2017, subsequently amended. The extant Notice is the Amended Notice of Appeal filed on 7/11/17 but deemed properly filed on 28/11/18.
The facts relevant to this appeal are that the Respondent, sometime in July 2011, entered into a contract with the Appellant for the supply of a new Peugeot Vehicle 407 Saloon Car. After payment, the Respondent was duly supplied with the vehicle, presented to the Respondent as a brand new vehicle. Within six weeks of delivery the vehicle started showing defects, signifying advanced age, like “pulling to one side” and rapid depletion of engine oil. When contacted, the Appellant passed this off lightly. Shortly after this, the vehicle started experiencing hard starting. This again was attributed by the Appellant to a problem with the
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fuel pump. The Respondents decided to employ the services of an expert. To their shock, the expert revealed that panel beaters had worked on the car before. He alleged that there were damaged stabilizers and bearings, loose nuts and a worn out fuel pump, indicating that the vehicle was not a new vehicle. When it became clear that the vehicle could not be fixed and having expended a considerable amount of money on the vehicle, they returned it to the Appellant demanding for either a brand new one or a refund of the purchase price. The Appellant refused.
The Respondent accused the Appellant of failing to give it the warranty documents and custom papers, in spite of repeated demands.
Aggrieved, the Respondent filed an action before the lower Court, seeking the following reliefs.
a. A declaration that the Defendant is in breach of the contract entered into by both parties in July/August, 2011.
b. The sum of Four Million, Eight Hundred and Fifty Thousand Naira (N4,850,000.00) as special damages being the cost price of the Peugeot 407.
c. The sum of Eight Million, Five Hundred Thousand Naira (N8,500,000.00) as general and exemplary damages.
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In proof of its case, the Respondent called a sole witness, Usman Abubakar, its General Manager/Chief Executive Officer and who tendered three Exhibits, P1. P2 and P3.
The Defence similarly called one witness and tendered four exhibits, Exhibits D1-D4.
The case of the Appellant presented through its witness, Usman Liman, the Managing Director of the Appellant, is that the Appellant is an accredited dealer to Peugeot Automobile Nigeria (PAN). He contended that the vehicle is a new one. Before the transaction, in view of PAN’s indebtedness to Access Bank PLC and in a bid to offset its liability to the said Bank, required the Bank to be one of its fleet dealers. On the directive of PAN, the Appellant purchased the vehicle from Access Bank. The witness relied on Exhibit D4 from Access Bank confirming the vehicle to be a brand new one.
At the end of trial, as aforesaid, the trial Judge held the Appellant liable for breach of contract and entered judgment in the following terms:
“On the whole, I grant the 1st prayer in favour of the 1st Plaintiff and declare that the Defendant is in breach of contract entered into
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between the 1st Plaintiff and the Defendant in August, 2011.
With regard to the special damages being the cost price of the vehicle, I also grant the said special damages in the sum of Four Million, Eight Hundred and Fifty Thousand Naira (N4,850,000.00) in favour of the 1st Plaintiff.
I however order that the vehicle which PW1 admitted is in their custody after the Court case shall immediately be returned to the Defendant.
With regards to the general and exemplary damages. The law is trite that damages are payable for breach of contract. However, in view of the fact that special damages have already been awarded, exemplary damages need not be awarded.
In view of the entire circumstances of this case and expenses, trauma and general damages suffered by the 1st Plaintiff, I award minimal damages of N1m only.”
In prosecution of the appeal, the Appellant filed an Appellant’s Brief of Arguments on 7/11/17 but deemed properly filed on 28/11/19, settled by Fred Ogidi Esq., of Fred Ogidi & Co. in which three issues were formulated for this Court to determine, as follow:-
1. Whether or not the testimony of PW1 regarding the
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findings/report of an expert, who never testified before the learned trial judge, is not a hearsay (sic) and inadmissible evidence and thus liable to be expunged from the record.
2. Whether or not Exhibit PW2 (record of previous proceedings) is of any evidential value having failed to comply with the provisions of Section 39 of the Evidence Act 2011 and as such ought not to be expunged from the record.
3. Having regard to the quality and nature of evidence adduced by the contending parties at the trial, whether the learned trial judge ought not to have entered judgment in favour of the Appellant.
In the Respondent’s Brief of Arguments settled by Olugbenga E. Ogunniran Esq. and B.N. Adams Esq. of Gbenga Ogunniran & Co. filed on 27/3/17 but deemed properly filed on 23/5/19, a sole issue was formulated for determination:
Whether in the light of the judgment given by the trial Court, the Respondent is entitled to the reliefs granted by the Court.
I note that the 3rd issue formulated by the Appellant and the sole issue distilled by the Respondent are similar. I shall accordingly adopt the 3rd issue raised by the Appellant, similar
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as aforesaid to the issue raised by the Respondent, as the sole issue for determination, amended for clarity, and under which the other issues raised by the Appellant shall be considered.
The issue for determination is thus:
Having regard to the quality and nature of evidence adduced by the contending parties at the trial, whether the learned trial judge ought to have entered judgment in favour of the Respondent.
The Appellant has contended that the Respondent’s witness is not an expert and there is no evidence from the person that examined the vehicle and who discovered the alleged fault and arriving at the conclusion that the vehicle in question is an old one. For the Respondent to succeed, he submitted, it is vital that the evidence of an expert be heard, in view of the technical nature of the subject matter. He cited the case of UWAKWE VS. STATE (2015) ALL FWLR Pt. 802 Page 1618 @ (E – F) on the principle that if there is a vital point in issue and there is one witness who will settle it, the witness ought to be called.
He asked the Court to expunge the evidence of the Respondent’s witness with regard to what he was
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told by the expert witness, being hearsay evidence and thus inadmissible. What is then left is the bare pleadings.
Learned Counsel also submitted that the trial Judge was wrong to have had recourse to the contents of the criminal proceedings in the Magistrate Court, Exhibit P-2, while resolving the contentions between the parties, as the Court neither saw nor heard the witness whose evidence it relied on. There is also no evidence on record before the lower Court that either of the conditions envisaged by Section 39 of the Evidence Act, 2011 had been met to warrant the recourse to the evidence contained in Exhibit P-2 or the invocation of Section 40 to 50 of the Evidence Act. Furthermore, the letter of complaint written to the Appellant by the Respondent, Exhibit P3, which merely contained a series of allegations, are mere bare assertions and themselves not proof of the allegations, which allegations must be proved. In any event, these allegations were rebutted by the Appellant in Exhibit D3, shifting the burden of proof to the Respondent to prove the allegations contained in Exhibit P3, citing the case of IRONKWE VS. UBA PLC (2017) ALL FWLR Part 879 Page
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650 @ 684 Paras A – B. It is thus merely his ipse dixit, as defined in the case of BUSARI VS. ADEPOJU (2017) ALL FWLR Part 878 464 @ 508 E – G. He complained that there was no proper evaluation of evidence and ascription of probative value to same by the lower Court.
In response, the learned Counsel to the Respondent submitted that no brand-new vehicle would have its mileage read up to 400 Kilometers mileage, let alone 1000 KM, which DW1 himself admitted under cross-examination on the 29th of June, 2016. Learned counsel contended that under cross-examination, DW1 stated that there was no warranty from the Peugeot automobile and that the Defendant was the one that gave the Plaintiff its own warranty. What is admitted, he submitted, needs no further proof, citing the case of DALHATU VS. ATTORNEY GENERAL KATSINA STATE (2008) ALL FWLR Pt. 405 Page 1651 @ 1674 Para E.
He further submitted that the Respondent, in its Statement of Claim and witness disposition laid a foundation before even stating the report of the technician. He thus did not need the report of an expert technician to prove his claim in this suit, as there were several faults
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and malfunctioning of the vehicle, even before the expert was consulted. Exhibit P2, he said, is admissible as clearly provided in Section 46 of the Evidence Act (2011). He pointed out that the vehicle had no warranty from PAN that the vehicle was new. The Appellant also could not tell what year the vehicle was manufactured. Furthermore, no customs papers were produced to show what year the vehicle was manufactured. Exhibit D2 from Access Bank which warranted that the vehicle was in “good condition” did not state that it was new.
In its Reply to the Respondent’s Brief of Arguments filed on 3/6/19, the learned Appellant’s Counsel submitted that the terms of the contract were never tendered in evidence, therefore all reference to it is only conjecture. He also contended that it was not challenged that the Appellant picked the vehicle from the fleet dealer, Access Bank and since this fact was neither denied nor challenged in cross-extermination, such fact should be taken as admitted and the Court must act on it. He cited the case of P.A. PLC VS. SARA PRODUCTION LTD (2016) ALL FWLR Part 818 page 799 at 840 – 841 G – O.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The lower Court, in its judgment, set out the evidence of the parties and the submissions of Counsel. Evaluating the evidence it held:
“A careful consideration of the entire evidence especially the faults developed by the vehicle in issue between 11/2 months to 6 months when it was returned will show that the weight of evidence will tilt in favour of the Plaintiff’s position that the vehicle could not have been brand new when it was delivered to the Plaintiff.
First of all, it was not bought directly from PAN by the Defendant. It was first bought by Access Bank.
The Defendant did not tell the Court when the vehicle was bought by Access Bank from PAN, when it was imported etc. the Defendant did not produce copies of the documents from PAN or even the importation documents to convince the Court that it delivered a new vehicle which had passed through a least a hand.
The Defendant did not explain how a brand new vehicle will have myriads of defects and problems including shortage of oil, hard starting, evidence of panel beating and repainting etc as shown in Exhibit P3. The Defendant only stated that by Exhibit D2, the vehicle was
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in good condition. Good condition does not mean brand new.
On the whole, I hold that the evidence adduced by the Plaintiffs but weight that provided by the Defendant. I also find and hold that the vehicle delivered to the 1st Plaintiff could not have been brand new unused thus was not what parties agreed would be supplied.
In the circumstance, I find that the Defendant was indeed in breach of the agreement with the 1st Plaintiff to supply it with a new and unused Peugeot Classic Car.”
The Appellant has complained that there was no expert produced and therefore the defects in the vehicle as observed by the expert are hearsay. The Court however referred to Exhibit P3 and the Appellant’s Response, Exhibit D3, before believing the account of the Respondent, based on its findings as expressed above.
Exhibit P3 is as follows:
“KEBBI STATE COMMUNITY AND SOCIAL DEVEOPMENT PROJECT
CSDP PCT NS 09 (World Bank Assisted) February 29, 2012
The Managing Director
KAURA Motors Nigeria Limited
AB 2 Nanmdi Azikiwe Way, Express Bye Pass
Kaduna.
RE SALE OF PEUGEOT 407 2.0 LTRE ENGINE CHASIS NO.
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VF36DRF621745544
Further to our (Usman and the undersigned) verbal discussion, I wish to return the above named vehicle, which was purchased from your Company in the Month of August 2011.
As indicated in the discussion, we have every reason to believe that the vehicle in question did not conform to our requirement, as contained in the letter requesting for quotation, which for the avoidance of doubt is hereby reproduced, “the Motor Dealer shall warrant that the Vehicle supplied under the contract are new and unused.” We are convinced that the Vehicle supplied is not new and/or is a used one. Our position is informed by the following, among other discoveries.
i. Verily two months after the purchase, we noticed that the vehicle’s engine oil is short of the required gauge. This was communicated to you and you advised that we should replace it in Birnin Kebbi and later bring it to you for general service;
ii. The Vehicle’s Driver had complained to your staff, during the general service that the vehicle was pulling to one side in the course of driving, which you attributed to alignment problem and of unusual noise coming
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from the suspension. However, even after the alignment was done, the problem still persisted. On further investigation, we found that the stabilizer bars are damaged and had to be replaced. In the process, we also discovered loosened nuts, all around the suspension area of the vehicle;
iii. There appeared to be some panel-beating and repainting of the lower part of the right rear doors, which is why the door is making loud, odd noise. As a matter of fact, all the doors are making unusual noise.
iv. The Tyres of the Vehicle started to wear-out, less than four months from the purchase, which forced us to replace one of them. Given that the vehicle has covered less than 15,000kms, this is quite abnormal.
v. We also experienced difficulty in starting the vehicle, especially in the morning, which was later attributed to a faulty fuel pump. This had to be replaced. It is highly inconceivable that such could be the case, especially since we never shrink in our responsibility. At the time of replacement the pump looked old and worn out.
vi. A large amount of dust is visibly seen both in the interior and inside the boot of the vehicle.
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We are therefore returning the vehicle and request that you replace it with a brand new one or refund the Agency the sum of N4,850.00, within one week from today, which was the cost of the purchase.
Thank you,
SGD
Usman Abubakar
General Manager.”
The response of the Appellant to this letter is Exhibit D1, which I note is the same as Exhibit D3;
“KAURA MOTORS
Nigeria Limited
March 5, 2012
The General Manager,
Kebbi State Community and Social Dev. Project
No. 2, Murtala Mohammed Way,
Tudun Wada, BirninKebi
Kebbi State.
Dear Sir,
RE: SALE OF PEUGEOT 407 2.0 LITRE ENGINE CHASIS NUMBER VF36DRFJ621745544
Your letter of February 29, 2012 on the above subject refers.
It is most regrettable that, seven months after the delivery and receiving of the aforesaid vehicle in perfect working order, you are returning it on the ground that the said vehicle is not a new vehicle.
The above notwithstanding, the said vehicle is covered by a contractual warranty which is strictly restricted to manufacturers defect, excluding maintenance and wear, however, in the instant case, you have gone
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ahead to have the parts replaced without recourse to us, thereby depriving our technical team the opportunity of knowing the exact fault, if any.
We still maintain that, the vehicle supplied to you is a brand new one and the insinuation to the contrary is not only embarrassing but an attack on our integrity and reputation. In the circumstance, we may fix your car under the warranty, but certainly cannot accede to your demand for a replacement or refund of the purchase price.
Yours faithfully,
For KAURA MOTORS NIGERIA LIMITED
SIGNED
AUTHORISED SIGNATORY.”
The Court, prior to its decision above, referred to the statement of the witness of the Appellant, observing:
“Under cross-examination, DW1 stated that they got the car they sold to the 1st Plaintiff from Access Bank. He could not give the history of the car. When asked about the evidence of the said PAN staff, DW1 said the PAN staff was in a better position to give the history of the car. When asked about the warranty, DW1 said the warranty over the car was from the Defendant and not from PAN.”
The lower Court preferred the evidence of the Respondent.
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It is settled law that assessment and credibility of witnesses is the primary function of the trial Court which had the singular opportunity of seeing and observing the witnesses. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
It has indeed been held that an appellate Court reviewing oral evidence of a trial Court would be entering an arena within the exclusive domain of the trial Court especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses. See Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC
I do not see anything perverse in the judgment of the lower Court.
The complaint of the Appellant of the inadmissibility of Exhibit P2, the Criminal proceedings before the Chief Magistrate Court, Kaduna, against DW1, is of no moment, I hold, since the
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lower Court did not rely on these proceedings in arriving at its conclusion, as shown in its judgment above.
The Appellant also complains that the terms of the contract were not tendered and which the Court said were breached.
The lower Court, however referred to Exhibit D2, the Vehicle Receiving Form, issued to the Respondent by the Appellant, dated 12/8/11 showing the release of the vehicle, pointing out that it was not stated therein that the vehicle was new but that it was in “good condition”. It paid no attention, and rightly so, to the letter written by Access Bank dated 8/8/12, which was only written after the return of the vehicle, stating that the vehicle was brand new.
The Court held, as aforesaid, that from the facts, the vehicle could not have been brand new.
I cannot fault the decision of the lower Court and its evaluation of the evidence before it. As aforesaid, it has not been shown to be perverse. I therefore do not fault the decision of the lower Court entering judgment in favour of the Respondent. I accordingly resolve the sole issue for determination against the Appellant.
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In consequence, this appeal fails and is dismissed. The judgment of the lower Court is accordingly affirmed. Parties are to bear their respective costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my Lord Oludotun Adebola Adefope-Okojie JCA. I agree with my Lord’s reasoning and conclusion in the said judgment. The lower Court was quite right in its conclusion that the vehicle supplied to the respondent was not brand new. The facts of the case show that the Appellant purchased the vehicle from Access Bank on the directive of Peugeot Automobile Nigeria (PAN). The fact that the vehicle which was sold by the Appellant to the Respondent as brand new was purchased by the Appellant from Access Bank surely is incorporated to render banking services and not to sell case unless of course in satisfaction of a judgment debt. Once a new vehicle changes ownership, it will be a misnomer to call it new. That, and the evidence of the mileage covered by the vehicle sold by the Appellant to the Respondent point unerringly to the conclusion that the vehicle was not a new one. For this reason and the fuller reasons given by my Lord in the lead judgment, I too find no merit in
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the appeal and therefore dismiss it.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the judgment of my learned brother, Oludotun Adebola Adefope-Okojie JCA. The reasoning and conclusion reached therein that the decision of the lower Court cannot be faulted also represents my view. The appeal therefore fails and is hereby dismissed.
I abide by his Lordship’s order that parties bear their respective costs.
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Appearances:
FRED OGIDI, ESQ. For Appellant(s)
OLUGBENGA E. EGUNNIRAN, ESQ., with him, FARIDA YUSUF, ESQ. For Respondent(s)