KINGSLEY NNAJI v. LUKA MADAKI & ANOR
(2012)LCN/5518(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/J/39/2003
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
The law is also very well settled that it is the Plaintiff’s claim that determines who should be sued and liable. The case in point is F.B.N. Plc v. Akporoboug Community Bank Ltd (2006) All FWLR (Pt.319) 927 at 968.
The issue of parties in any suit is very fundamental and upon which the jurisdiction of the Court enures. Jurisdictional issue is so fundamental and the absence which the Court would not be seen to be properly constituted. See the case of Best Vision Sent Ltd. v. U.A.C.N.P.D.C. Plc (2003) 13 NWLR (Pt.838) 594 at 606 wherein this Court held:
‘For a court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper parties must be identified ought to be fulfilled. See Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341 (1962) All NLR 587.The question of proper parties is an important issue which would undoubtedly affect the jurisdictional powers of the Court. PER CLARA BATA OGUNBIYI, J.C.A.
COURT: DUTY OF COURT TO ONLY DECIDE ISSUES BEFORE IT
it is well settled that the court is bound to only decide a case before it based on issues presented by parties for adjudication. In other words, it is not open for a court no matter how well meaning and /or well calculated to veer off from that which was before it by chasing to make out a case different from what parties have presented. The court is to strictly stay within its bound as laid down in the Constitution. It is not therefore open for it to embark on some imaginary or fathomed and hypothetical situational exercise. In the same way, on address of counsel no matter how eloquently presented, can never take the place of pleadings or evidence. See Obasuyi v. Business Ventures Ltd.(2000) 5 NWLR (Pt.658) page 668 at 690. PER CLARA BATA OGUNBIYI, J.C.A.
ACTION: REQUIREMENT TO QUALIFY AS A NECESSARY PARTY
For the 2nd Defendant to qualify as a necessary party therefore, his status must pass the test as laid down in the case of Green v. Green (supra). In other words, that he must have had an interest in the subject matter; also that by the very nature of the claim and reliefs sought, same could not be determined in his absence. See the case of Odeke v. Adepegba (2001) 5 NWLR (pt.106) 330 at 349. PER CLARA BATA OGUNBIYI, J.C.A.
EVIDENCE: PRINCIPLE GUIDING EVALUATION OF EVIDENCE
The general principle as laid down by the apex court in the case of Balogun v. Agboola (1994) 1 All NLR (pt. 11) 66 at 73 is well settled on the principle that it is the primary duty of the trial High court to ascribe probative value to the evidence before it. In ascribing probative value, their Lordships in the case of Basil v. Fajebe (2001) 4 S.C.N.J. 257 at 268 held and said:
“Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it… it extends to a consideration of the totality of evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make.”
In the process of evaluation, it is expected that the trial court would involve the construction of on imaginary scale which would be used in the weighing of evidence before arriving of the tilting of the pendulum. Significant to also restate that the duty of evaluation lies on the trial court as Court of evidence and thus the general principle laid down that the appellate Court should not engage in the habit of interfering or disturbing the findings of the Lower Court except in cases where such findings are not supported by legitimate evidence or are perverse. See the case of Moghalu v. Ude (2000) FWLR (Pt.14) 2454 or 2466. PER CLARA BATA OGUNBIYI, J.C.A.
WORDS AND PHRASES: MEANING OF IBI JUS IBI REMEDUM
The law is trite and very well settled in the well established principle of Ibi jus Ibi remedum (where there is a wrong, there must be a remedy). PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
KINGSLEY NNAJI Appellant(s)
AND
1. LUKA MADAKI
2. CHRISTIAN MBACHU Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Jos Plateau State delivered on the 4th day of September, 2002.
The Appellant was the 1st Defendant in the Court below. The 1st Respondent as plaintiff, took out a writ of summons and claims against the Appellant and 2nd Respondent jointly and severally as evidenced at paragraph 20 page 5 of the record of appeal as follows:
(1) A declaration that the plaintiff has performed his obligation under the agreement dated 7th November,1999 and is therefore entitled to the redemption of his car Peugeot 505 saloon with Registration No.BQ 812 EKY.
(2) An order restraining the defendants from in any way dealing with the said car in any way detrimental to the interest of the plaintiff.
(3) An order directing the defendants to release to the plaintiff forthwith his car Peugeot 505 saloon with Registration No. BQ 182 EKY in good and serviceable condition.
The 1st Respondent in proof of his case gave evidence as PW1 and called two other witnesses. The Appellant gave evidence as DW1, called no further evidence and closed his case. The 2nd Respondent did not give evidence and called no witness in proof of his defence.
On the 28th May, 2002, the parties through their counsel addressed the court and the matter was adjourned to 27th July, 2002 for judgment. However the reserved judgment was only delivered on 4th September, 2002 by D. G. Mann, J. sitting as vacation judge. In the judgment, the Court found in favour of the 1st Respondent. The Court also struck out the name of 2nd Respondent from the suit declaring that he was not a necessary party to the suit.
Dissatisfied with the judgment of the Court, the Appellant has now filed a notice of appeal on the 21st October, 2002. The notice is contained at pages 116 to 119 of the record of appeal wherein he raised five grounds of appeal which reproduction without the particulars state as follows:
Ground 1
The judgment is against the weight of evidence adduced.
Ground 2
The trial court erred in law in holding that “I therefore find that the plaintiff made a full repayment on or before 7/12/00” thus discharging the plaintiff of his obligation despite finding that Per Exhibit 3 “some money was paid but a “safari” was holding unto if” and “obviously the document admits there is a dispute on an amount” and this has occasion a miscarriage of justice
Particulars of error (a),(b),(c)(d),(e) and (f) supplied.
Ground 3
The learned trial judge erred in law in holding that the 2nd Defendant is not a necessary party to the suit and thus not liable to the plaintiff even after stating that “…. The 2nd defendant admitted collecting the money to the police,’ and holding, that “the 2nd defendant did not establish his own claim against the plaintiff that warranted his keeping the money” and this occasioned a miscarriage of justice.
Particulars of error (a), (b), (c) and (d) supplied.
Ground 4
The learned trial judge erred in law in holding that “the 2nd Defendant can at best be regarded as an agent of the 1st Defendant” in collecting the money from the plaintiff thus making a case different from that presented to the court by the parties and this occasioned a miscarriage of justice.
Particulars of error (a), (b), (c), (d), (e), (f), (g), (h) and (i) are all supplied-
Ground 5
The learned trial judge erred in law in awarding the sum of N250,000.00 as the value of the car even when the plaintiff failed to strictly prove this head of his claim.
Particulars of error (a), (b), (c) and (e) are all supplied.
The appeal was entered in this Court on the 14th October, 2003 and in accordance with the rules of Court, briefs were exchanged between the parties. The appellants’ brief of argument dated 1st March and filed 2nd March, 2005 was by the order of this Court deemed filed and served on the 24th May, 2005. That of the 1st Respondent in response was, by the order of this Court sought and obtained, also deemed filed on the 30th June, 2011. No brief was however filed on behalf of the 2nd Respondent.
On the 7th May, 2012 when the appeal was called up for hearing, the respective counsel on behalf of the Appellant and 1st Respondent adopted the foregoing briefs of arguments. This was pursuant to the order of this Court made on the 18th October, 2011 that the appeal be heard in the absence of any brief filed by the 2nd Respondent.
From the five grounds of appeal, while four issues were formulated on behalf of the Appellant, only two issues were raised by the 1st Respondent’
The Appellant’s four issues are reproduced as follows:
(1) Was the learned trial judge not in error in entering judgment against the appellant and absolving the 2nd defendant of liability despite the overwhelming evidence and admission in pleadings against interest by the 2nd defendant.
(2) Whether the learned trial judge was right in holding that the 2nd respondent was not a necessary party to the suit.
(3) Whether the learned trial judge was right in holding that the 2nd Respondent is an agent of the appellant when no such case was present for determination.
(4) Whether the learned trial judge was right in awarding the sum of N250, 000 as the value of the car against the appellant even when the plaintiff did not adduce evidence in proof.
The 1st Respondent’s two issues are also as follows:
(a) Was the evaluation and conclusion reached in the case by the trial court perverse?
(b) Whether the striking out of the second Defendant’s/Respondent’s name from the suit by trial court is wrong in Law when the plaintiff/Appellant’s case did not disclose any claim against him.
For the determination of this appeal, I will adopt the two issues formulated by the 1st Respondent. This is because from the totality of the Appellant’s issues 1, 2 and 3 they could and conveniently be disposed of under the 1st Respondents issue 2. While Appellant’s issue 4 is also fittedly covered by the 1st Respondents issue No. 1.
Jointly submitting and substantiating on the issues 1, 2 and 3 raised, the learned Appellant’s counsel, argued that the learned trial judge erred in holding that the 1st defendant is liable and thus absolving the 2nd Defendant of liability.
That the plaintiff in his claim averred that he paid over to the Defendants a total sum of N85,800 towards settlement of his indebtedness to the 1st Defendant. That the 2nd Defendant in his statement of defence admitted personally receiving the money. The counsel re-iterated the law that where averment in a statement of claim is admitted in a statement of defence, no further proof is required to prove same. See the case of Adamu v. Ikhoro (1988) 4 NWLR (Pt.789) page 474 at 486. That where such admission relates to property or a sum of money, the party claiming same is entitled to the property or sum of money. See Blackwood Hedge Nig. Plc. v. Omuna Construction Company (2002) NWLR (Pt.82) page 532 at 541 – 542. That the 2nd Defendant never called any evidence in proof of his averment in his pleadings. That the 2nd Defendant in the circumstance and on the decided authorities is deemed to have abandoned his pleading and admitted the plaintiff’s case. That on the totality of the evidence and the findings of Court on the record, the 2nd Defendant is still with the plaintiff’s money and therefore liable to pay to plaintiff the judgment sum.
On the question whether the trial court erred in holding that the 2nd Defendant was not a necessary party to the suit; that for a court to decide the question, who is a necessary party, counsel argued that same must be only after having a careful look at the Plaintiffs Statement of Claim to see if a case has been made out against the Defendants. That it is also imperative for the Court to give consideration to the Defendant’s defence and totality of the evidence adduced in support of the pleadings before arriving at a verdict as to whether the Defendant is a necessary party to the suit or not. That where from the look of the nature of evidence and pleadings it seems to the Court that the defendant has unequivocally admitted the case of the Plaintiff, the Court will be in error to hold that Defendant is not a necessary party, especially where the admitted fact forms the bed-rock of the Plaintiff’s case.
Counsel further submitted that the learned trial judge in arriving at the decision as to whether the 2nd Defendant was a necessary party, made far reaching pronouncements which should have guided her: but that instead of keeping to those findings, the judge went on a voyage of discovery and in the process missed the point completely. That the voyage caused a miscarriage of justice resulting to the judgment against the Appellant.
Counsel therefore urged us to set aside the holding of the trial Court since the conclusion of the learned trial judge not being based on pleading and evidence led, had caused a miscarriage of justice. He further urged that the Court should order that the 2nd Defendant is a necessary party to the suit.
On the issue wherein the Court held that the 2nd Defendant is an agent of the Appellant, learned counsel submitted a gave error has been fallen into by the learned trial judge and which he garnered had also occasioned a gross miscarriage of justice. The said counsel graphically outlined the paragraphs of the Plaintiff’s statement of claim in proof of the details of the 2nd Defendant’s involvement. That nowhere did the Plaintiff maintain or infer that 2nd Defendant ever acted as an agent of 1st Defendant. That even on the averments by the 2nd Defendant, he did admit that he did not only collect the money from the Plaintiff but further insisted that it was payment meant for him and not for the 1st Defendant and which money he used for himself. Counsel therefore submitted and spelt out the made of creation of a principal and agent relationship which could occur in any of the fiveways as laid down in the case of Vulcan Gases Ltd v. G.F.I.G. (2001) FWLR (Pt. 53) page 1 at 22 – 23.
Submitting further, the learned counsel re-iterated the absence of any evidence adduced either by the Plaintiff or his witnesses or even from the 1st Defendant alluding to the creation of a principal and agent relationship between the 1st and 2nd Defendants. That it was not therefore within the province of the trial court to manufacture its own evidence or make findings not based on evidence before it. See the case of Hausa v. The State (1994) 19 LRCN page 177 at 218. That the trial court was duty bound to adjudicate upon only the issue brought before it by the parties. In the result, it should not therefore have pronounced on the issue of agency suo motu more so when it did not invite the parties to address it on the issue. See the case of Bamgboye v. Olarewoju (1991) 4 NWLR (Pt.184) page 132 at 144. That to do so as it did amounted to opening a new frontier and a denial of justice to the 1st Defendant. The learned counsel therefore urged us to hold that the 2nd Defendant was not an agent of the 1st Defendant and so resolve this issue in favour of the Appellant.
In response to the submission (supra), the learned 1st Respondent’s counsel re-appraised the entire claim as borne out on the pleadings before the trial Court and concluded that the striking out of the second Respondent’s name from the suit is well grounded in law. In other words, that only parties to a contract can sue or be sued on it and that the second Respondent was not a party to Exhibit F which is the contract between the Appellant and the first Respondent and the basis for the case at the Court.
Learned counsel on this issue therefore urged us to dismiss the appeal for this reason.
In summary, the said issue is attacking the trial court’s decision in striking out the name of the 2nd Defendant. In recapitulation of the trial court the 1st Respondent sued both the Appellant and the present 2nd Respondent in this appeal. At the close of the 1st Respondent’s case, and that of the Appellant, the 2nd Defendant also rested his case without giving any evidence but argued in his address that he was not a necessary party to the suit. The learned trial court judge after having reviewed the relevant legal authorities and also the entire circumstances of the case come to the conclusion that the 2nd Defendant was not a necessary party. Specifically and of page 111 of the record of appeal for instance, the learned trial judge said:
“From the above summary the 2nd defendant played a prominent role firstly in aid of the plaintiff and later for the 1st defendant, I agree with counsel for the 2nd defendant that 2nd defendant is not a necessary party. He assisted the plaintiff to get the loan and collected the repayment on behalf of the 1st defendant.”
Also and further of page 112 of the said record the Court said:
“I agree therefore that going by the claim before the court the 2nd defendant is not a necessary party as the claim can be determined in the absence of the 2nd defendant. The 2nd defendant’s name is hereby struck out of the suit.”
The learned Appellant’s counsel had submitted and related to decided authorities as to who is a proper and necessary party to an action. Specific reference was related to the celebrated case of Green v. Green (2001) F.W.L.R. (Pt.76) 795 wherein their Lordships of the apex court per Oputa, JSC at page 814 had this to say:
“Necessary parties are those who are not only interested in the subject matter of the Proceedings but also in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
From the foregoing definition therefore the learned Appellant’s counsel cannot be more correct on his submission that the Court can only be in a position to determine a necessary party only after having a careful look at the plaintiff’s statement of claim to see if a case has been made out against the defendants.
The law is also very well settled that it is the Plaintiff’s claim that determines who should be sued and liable. The case in point is F.B.N. Plc v. Akporoboug Community Bank Ltd (2006) All FWLR (Pt.319) 927 at 968.
The issue of parties in any suit is very fundamental and upon which the jurisdiction of the Court enures. Jurisdictional issue is so fundamental and the absence which the Court would not be seen to be properly constituted. See the case of Best Vision Sent Ltd. v. U.A.C.N.P.D.C. Plc (2003) 13 NWLR (Pt.838) 594 at 606 wherein this Court held:
‘For a court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper parties must be identified ought to be fulfilled. See Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341 (1962) All NLR 587.The question of proper parties is an important issue which would undoubtedly affect the jurisdictional powers of the Court.
The law has succinctly provided vide Order 11 Rule 3 High Court (Civil Procedure) Rules, Plateau State 1987 that:
“All persons may be joined as defendants against whom right to any relief is alleged to exist whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.”
By the provision of Order 12 Rule 3 of the said High Court Rules therefore, a Person who conceives that he has a case against another may elect to sue the said other or others to recover any damage he must have suffered.
The cardinal principle of law is further well settled that parties are bound by their pleadings. See the case of Iradia v. First bank of Nigeria (1991) 3 NWLR (Pt.182) page 751 at 769. It is also when issues are joined by parties that pleading is said to have been complete. See the case of Adamu v. Ikhoro (1988) 4 NWLR (Pt.789) Page 474 at 486.
The learned Appellant’s counsel had also thought out as it is well settled that the court is bound to only decide a case before it based on issues presented by parties for adjudication. In other words, it is not open for a court no matter how well meaning and /or well calculated to veer off from that which was before it by chasing to make out a case different from what parties have presented. The court is to strictly stay within its bound as laid down in the Constitution. It is not therefore open for it to embark on some imaginary or fathomed and hypothetical situational exercise. In the same way, on address of counsel no matter how eloquently presented, can never take the place of pleadings or evidence. See Obasuyi v. Business Ventures Ltd.(2000) 5 NWLR (Pt.658) page 668 at 690.
For purpose of emphasis, the plaintiff’s claim per the amended statement of claim had been clearly spelt out earlier in the course of this judgment. For the 2nd Defendant to qualify as a necessary party therefore, his status must pass the test as laid down in the case of Green v. Green (supra). In other words, that he must have had an interest in the subject matter; also that by the very nature of the claim and reliefs sought, same could not be determined in his absence. See the case of Odeke v. Adepegba (2001) 5 NWLR (pt.106) 330 at 349. The plaintiff’s claim is founded on Exhibit I which is a loan agreement between Plaintiff and 1st Defendant. The 2nd Defendant signed Exhibit I as a witness.
The document Exhibit I which was executed on the 7th November 1999 clearly specifies that the loan agreement was “Between Mr. Kinsley Nnoji of P9 Danja Street, Jos (hereinafter called “The lender”) on the one part and Mr. Lukas Madaki of Nalda Bukuru (hereinafter called “The Borrower”) of the other part'”
Throughout the length and breadth as well as content of Exhibit I the terms of the agreement proper spans out from paragraphs 1 – 5 and which did not in any way reflect the 2nd Defendant as a Party thereof’ He was in other words only a witness to the signatories. In his capacity as a witness therefore that would not in the circumstance qualify him as a party to the document Exhibit I. He cannot in other words be properly called a necessary party as rightly submitted by the 1st Respondent’s learned counsel’
It is also pertinent to restate that there is no claim by the Plaintiff before the trial court for the sum of N85,800.00 which the Plaintiff claimed he gave the 2nd Defendant. i.e. to say the total sums at paragraphs 11 and 13 of the amended statement of claim at page 35 of the record of appeal. That nexus or connection with the 2nd Defendant had not been established. The law is trite that a Court cannot award to any party what he did not ask for. In other words, the Court is not a Father Christmas by awarding indiscriminately. See Stowe v. Stowe (2001) 5 NWLR (Pt.706) 395 at 404. The determinant guiding factor by the court is dependent upon issues which are before it and properly so mode out by parties themselves. See the case of Ayologu v. Agfu (2002) 3 NWLR (Pt.753) 168 at 184. In the absence of any claim for the sum of N85,800.00, the Court cannot make any orders in relation thereto.
The learned Appellants counsel in his submission made a heavy weather on the failure by the 2nd Defendant who filed a statement of defence but did not give any evidence in respect thereof, In other words, the said counsel, I hold, had misconceived the concept of the principle of admission. The 2nd Defendant would have been caught up only and only if he had qualified as a necessary party and who failed to adduce any evidence in proof of his pleadings.
As rightly submitted by the learned 1st Respondent’s counsel by the amended statement of claim there is no single relief or prayer in which the 1st Respondent (Plaintiff) had against the 2nd Respondent. It is therefore not out of place that there is no reason to have joined the 2nd Respondent on the onset in the suit. Without the 2nd Defendant being a Party to the entire transaction, there is therefore no way a claim could be maintained against him. In the circumstance of the foregoing therefore, he need not give evidence in his defence thus a good reason for abandoning his pleadings.
On the question as to whether or not the 2nd Defendant is an agent of the 1st Defendant, regard must be had to the reasoning given by the trial court for striking out his name from the suit. Reference in that respect can be made to page 112 of the record of appeal wherein the trial court said:
“I agree therefore that going by the claim before the court the 2nd Defendant is not a necessary party as the claim can be determined in the absence of the 2nd Defendant. The 2nd Defendant’s name is hereby struck out ‘”
It follows and I again repeat straight away that, for the 2nd Defendant to be a necessary party the claim must pass the definition as restated in the case of Green v. Green (supra). The interest of the 2nd Defendant in the subject matter had not been specified and from the claim and reliefs sought same can be dealt with in the absence of the said Defendant and it would not have any effect on the outcome of the case. This is especially having recourse to Exhibit I wherein he is not held out as a party.
On the question whether the 2nd Defendant is an agent of the 1st Defendant the Appellant copiously related to Paragraphs 3, 6, 15 and 16 of the amended statement of claim wherein the averment said:
“3. The plaintiff avers that sometimes on 7th November, 1966, approached the 2nd Defendant for a loan and the 2nd Defendant linked him to the 1st Defendant.
6. The plaintiff avers that the 2nd defendant acted as a link between him and the 1st defendant -based on his personal relationship with both plaintiff and 1st defendant.
15. On presentation of the said money at the Defendant’s residence in the morning of the following day (4th December 1999) same was counted by the defendants but refused to release to him (Bulus Madaki).
16. Upon the facts stated in paragraph 15 above, Bulus Madaki reported the matter to the “C” Division of the Nigeria Police, Jos where upon the defendants were invited and the said 2nd defendant acknowledge in writing collecting the said money from the Bulus Madaki. The plaintiff pleads and shall rely on the said acknowledgement note dated 4th December 1999.”
The learned Appellant’s counsel relying on the foregoing paragraphs, argued the specific details of the involvement of the 2nd Defendant.
Also at paragraphs 8, 13 and 15 of the 2nd Defendant’s statement of defence, it was averred in response thus:
“8. In answer to paragraph 13 of the claim, the 2nd defendant avers that he received the sum of N85,800 only from the plaintiff as part payment for the sum of N95,650 only owed to him by the plaintiff.
13. The 2nd defendant avers that when he received the sum of N85,800 only from the plaintiff he applied it in off-setting part of the debt owed him by the plaintiff leaving a balance of N9,850 only.
15. In answer to paragraph 16 of the claim the 2nd defendant avers that the acknowledged the receipt of the sum of N85,800 as requested by Bulus Madaki who gave him the money to enable him present evidence to the plaintiff that the money has been paid to the 2nd defendant.”
The mode of creation of principal and agent relationship was spelt out in the case of Vulcan Gases Ltd v. G.F.I.G. (2002) FWLR (Pt.53) page 1 at 22 – 23. In other words, that the relationship could arise in one of the following ways:
(a) By express appointment whether orally or by a letter of appointment or by power of Attorney.
(b) By ratification of the agents’ acts by the principal.
(c) By virtue of the doctrine of estoppel.
(d) By implication of law in case of agency of necessity and
(e) By presumption of law in case of cohabitation.
From all deduction and having regard to the foregoing mode of creation of principal and agent relationship, it is obvious that the 2nd Respondent did not fall within that category of definition as rightly submitted by the learned Appellant’s counsel. In other words and as rightly conceived on behalf of the 1st Respondent, it is correct to say that the conclusion of agency arrived of by the trial court was a mere obiter dictum as it was not the reason for striking out the name of the 2nd Defendant from the suit. This is especially when recourse is had to the reason which was emphatically stated at page 112 of the record and reproduced earlier in the course of this judgment. In other words, the centre of consideration was the nature of the claim as laid out from the amended statement of claim.
On the totality of the amalgamated issues taken together, it is my view that the learned trial judge was very much on course when he struck out the 2nd Defendant’s/Respondent’s name from the suit in the absence of any cause of action disclosed against him. This is having regard to the deduction that the said 2nd Defendant was not held out as an agent which findings did not however have any bearing on the outcome of the trial Court’s reasonings and conclusions. The said issue I hold is therefore resolved against the Appellant.
The next issue for consideration is whether the evaluation and conclusion reached in the case by the trial court was perverse. The learned appellant’s counsel in submitting error committed by the trial Court argued that the head of claim, which is an alternative claim of the plaintiff is in the realm of special damages and falls within the definition of the case of Ijebu Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136 at 158. Also the case of Obasuyi v. Business Venture Ltd (2000) F.W.L.R. (Pt.10) page 1722 at 1741. That the plaintiff, despite his averment at paragraph 21 of the amended statement of claim, had failed to give particulars as to how he got the value as stated in his pleadings as required by law. Reference was related to the case of Union Bank of Nig. v. Nwachukwu (2000) FWLR (Pt.6) 986 at 996. Also Mohammed v. Nwobodo (2000) FWLR (Pt.15) 2546 at 2568.
Counsel further submitted the absence of any particulars and also that neither the plaintiff as PW1 nor any of his witnesses gave evidence in proof of the value of the car whatsoever. That the award of the sum of N250,000.00 to the Plaintiff was not borne out of the evidence adduced before the court. That in the right of the lacuna in the pleadings and a dearth of evidence in proof of the claim of N250,000 by the Plaintiff, the trial court was wrong to have granted the relief. The counsel on the totality urged this Court to hold that the learned trial judge ought to have given judgment in favour of the Appellant as the evidence adduced, pleadings filed and exhibits tendered all show that the money meant for the redemption of the pledge never got to the Appellant.
Learned counsel therefore urged us to set aside the entire judgment of the trial court and in its place enter judgment in favour of the Appellant.
Submitting in response the learned 1st Respondent’s counsel applauded the trial High Court and argued that it correctly ascribed probative value to all the pieces of evidence tendered by all the parties before it reviewed and criticized same and then made its conclusions. Reference was further made to the case of Gaji v. Paye (2003) 5 SCNJ 20 at 35 a Supreme Court decision.
The learned counsel while urging that the appeal be dismissed submitted succinctly that:
1) The evaluation and conclusions (decisions) of the trial court are borne out of the pleadings and evidence of parties before the court.
2) That the trial court duly and rightly too, reviewed and criticized all the pieces of evidence as well as all the issues of all the parties before reaching its conclusions.
3) That the award of N250,000.00 which is the 1st Respondent’s alternative claim by the trial court is based on the unchallenged and uncontradicted evidence of the first Respondent, and a refusal to so award would have automatically rendered the decision of the court nugatory since Appellant admitted selling the first Respondent’s car which the trial court had declared a wrongful sale.
4) That the findings that the appellant wrongfully sold the first respondent’s car is not challenged in this appeal, and that finding must be given effect which is the award of the first Respondents alternative claim for N250,000.00 being the value of the car.
The said issue basically complaints against the evaluation and conclusion reached by the trial court in the suit between the parties. While the Appellant complained that the judgment is perverse, the 1st Respondent related copiously to the proceedings on the record in total contradiction to the notion held by the learned Appellant’s counsel. The general principle as laid down by the apex court in the case of Balogun v. Agboola (1994) 1 All NLR (pt. 11) 66 at 73 is well settled on the principle that it is the primary duty of the trial High court to ascribe probative value to the evidence before it. In ascribing probative value, their Lordships in the case of Basil v. Fajebe (2001) 4 S.C.N.J. 257 at 268 held and said:
“Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it… it extends to a consideration of the totality of evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make.”
In the process of evaluation, it is expected that the trial court would involve the construction of on imaginary scale which would be used in the weighing of evidence before arriving of the tilting of the pendulum. Significant to also restate that the duty of evaluation lies on the trial court as Court of evidence and thus the general principle laid down that the appellate Court should not engage in the habit of interfering or disturbing the findings of the Lower Court except in cases where such findings are not supported by legitimate evidence or are perverse. See the case of Moghalu v. Ude (2000) FWLR (Pt.14) 2454 or 2466.
At paragraph 21 of the amended statement of claim at page 36 of the record of appeal, the plaintiff specifically at sub(2) claimed and said:
“21. The plaintiff avers that the market value of the said vehicle at time of the loan agreement is N250,000.00 (Two hundred and Fifty thousand Naira) only.
1. ………
2. An order directing the Defendant to release unto the plaintiff his vehicle Peugeot 505 salon car with registration No.BQ 812 EKY in good and serviceable condition, the plaintiff having redeemed the loan as contained in the Loan Agreement dated 7th December, 1999 or in the alternative the sum of N250,000.00 being the market value of the said vehicle at the time of the Agreement.”
The learned Appellant’s counsel in his submission argued that the nature required in proof of the claim for special damage is strict. That the absence of any particulars supplied had therefore negated the evidence in proof.
The determination of this issue would only be exculpated on a strict review of the record of that which took place at the trial court. This is in consonance with the submission advanced by the learned 1st Respondent’s counsel especially where the question of pleading special damage was never made an issue of the trial court.
It is trite and needless to restate that a party on appeal cannot embark on a case which is different from that led at the trial Court. An appeal emanates from and therefore is a continuation of that which began of the trial Court. Parties of such Court are also bound by their pleadings. An appeal can only be against a decision made by the Lower Court. See the case of Ikweki v. Ebele (2005) All FWLR (Pt.257) 1401 at 1421. It is on record that the 1st Respondent did not give particulars but hence same never form part of the judgment of the lower court. It cannot therefore be subject of an appeal at this stage and in this court as it has no foundation. The Appellant was well aware and in the knowledge at the trial court state which would have been the right place and time to raise the issue. By failing to so do, it is now too late in the day as he is deemed to have waived his rights. The authority of Briggs v. The Niger Co. Ltd. (1926) N.L.L. 98 cited by the 1st Respondent’s counsel is apt and relevant in point. In that case it was held that, if a Plaintiff does not plead sufficient facts to enable Defendant know the nature of the claim being made against him, it is for the Defendant to ask for the particulars of such claim. The Appellant had the opportunity to ask for more particulars from the 1st Respondent if actually he needed same. As rightly submitted by the 1st Respondent’s counsel, a party has the legal prerogative to waive his right. See the case of Abdulraheem v. Olufeagba (2007) All FWLR (Pt.360) 1502. That leg of argument by the Appellant I hold, is not sustainable but is hereby discountenanced.
Contrary to the submission by the Appellant’s counsel in evaluating the evidence, the Trial High Court from the record reviewed the evidence of both the Appellant and witnesses of the Respondent especially PW2 and PW3 and thus weighed both on the imaginary scale of justice before reaching the conclusion that the evidence of the said witnesses was not challenged by the Appellant. The Court also found them as witnesses of truth and believed their testimonies. Furthermore and despite the Appellant’s reliance on Exhibit 3 the Trial Court profoundly criticized the said exhibit as not being on admission in the absence of same being unequivocal and direct.
At page 107 of the record of appeal for instance, the trial Court held and said:
“From the evidence before the court which has been adequately summarized, PW2 and PW3 stated in clear terms before the Court not (sic) that the sum of N85,800.00 was paid to both defendants before the court. Their evidence on the detailed events that took place on the 2nd day being the 3/12/99 and 4/12/99 was not challenged not controverted. Both witnesses were very concise on how both the defendants related with them with regards to the money given to them”.
Also at page 109 of the record of appeal, the learned trial judge continued and held thus:
“From the evidence before obligations under the agreement i.e. Exhibit 1 that being the case the 1st defendant cannot acquire any right to deal with the car. He is obliged to return the car and not sell if. The 1st defendant admitted selling the car because according to him, the plaintiff failed to perform. The plaintiff did not fail to perform. The car was therefore wrongly sold. The plaintiff’s therefore entitled to the return of his car but the car is no longer there and therefore what is the remedy available to the plaintiff”.
Significant to restate that there is no appeal against the findings of fact that the 1st Defendant sold the plaintiff’s car. The law is trite and very well settled in the well established principle of Ibi jus Ibi remedum (where there is a wrong, there must be a remedy). Further still and at page 114 also of the record of appeal, the trial court held and said:
“The issue here i.e. claim of the plaintiff is the return of his car or the payment of its value. The said car was wrongly converted by the 1st defendant i.e. 1st defendant sold the car wrongly.
In the case where an item or chattel has been wrongly converted, the owner is entitled to be awarded the value of the item as damages. The evidence Presented by the plaintiff was not challenged. The 1st defendant cannot argue that plaintiff did not tender a receipt in evidence. The 1st defendant did not sell (sic) evidence that the car was of a lesser value. He sold the car for N100,000.00. In any case the 1st defendant chose to sell the car for that value. The said value was not the plaintiff’s price. The plaintiff having testified to the value and the court having found that the car was wrongly sold leaves the court with only one option which is to award the sum claimed by this plaintiff. For in such cases it is the value of the item as at the time of conversion. The car having been disposed off wrongly the plaintiff is entitled to the sum claimed that is the sum of N250,000.00 (Two hundred and fifty thousand Naira) only being the value of the car at the time of Exhibit 1.”
With the plaintiff having given evidence of the value of his car at the execution of Exhibit 1, the onus had shifted onto the 1st Defendant/Appellant to have challenged and contradicted same. This is more so with the Plaintiff having tendered a documentary receipt in evidence. The Court had adjudged and found as a fact that the car was wrongly sold. There was no contrary valuation given in evidence by the Appellant so as to put side by side that given by the Plaintiff/1st Respondent. The imaginary scale must have completely tilted in favour of the plaintiff/1st Respondent therefore.
The law is trite on the legal effect of an unchallenged evidence which the Court is enjoined to act thereon. In other words on unchallenged evidence that is cogent, positive, direct and convincing can be and in fact should be acted upon by the Court. The case of Odulojo v. Haddod (1973) 11 SC 357 at 364-5 is relevant in point.
The learned trial judge in the circumstance did carefully reviewed the evidence of the 1st Respondent as Plaintiff as strongly presented by PW2 and PW3 which he believed and further reviewed the evidence of the 1st Respondent himself who said that the value of the car was N250,000.00. The said value as rightly submitted by the learned 1st Respondent’s counsel was testified to on oath and it was neither challenged, shaken, nor contradicted by the Appellant. The record of appeal in support is in clear evidence at pages 56-61. There was also no question from the Appellant attacking the said value of the car and the Appellant, I repeat did not procure or proffer any contrary evidence as the value of the car. The Appellant’s counsel in his submission alleged lapses in the proceedings and lacuna which he argued were not borne out of evidence before the Court. The submission by learned counsel to the effect that there was the absence of dearth of evidence in proof of the claim of N250,000 by the Plaintiff, has not, I hold been substantiated. The trial Court, contrary to the submission by the counsel could not be faulted in granting the relief as it did.
In the case of Gaji v. Paye (supra) the apex Court held that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. It follows therefore that the truth as to the value of the car as testified to by the 1st Respondent having not been cross-examined on it by the Appellant is an acceptance of the said truth.
The 1st Respondent in his pleadings did plead the relief for the claim of N250, 000.00 as an alternative prayer.
In the case of Nwaga v. Registered Trustees, Recreation Club (2004) All FWLR (Pt.190) 1360 of 1376 – 1377, this Court listed seven reasons why it will not disturb or interfere with the finding of a trial Court. One of the reasons was to the effect that the Court will not overturn a finding which “on the face of the record it is both apparent and transparent that justice have been done.”
This Court per Mukhtar, JCA (as he then was) in the case of Lawan v. Yama (2004) All FWLR (Pt.229) 874 at 893 on the same principle also held and said:
“..it is trite that findings which are borne out of evidence that have been pleaded are not perverse and should therefore not be disturbed by an appellate Court.”
The learned trial judge I hold could not have been more correct, just and fair in its findings on this issue which I also endorse in totality and without more. The issue is also resolved against the Appellant.
In the result and on the totality of this appeal, same I hold is devoid of any merit and is accordingly dismissed. With costs following events, I also award the sum of N50,000.00 in favour of the 1st Respondent against the Appellant.
Appeal is dismissed with N50,000.00 costs in favour of the 1st Respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I read in advance the Judgment just delivered by my learned brother, Ogunbiyi, J.C.A. I agree with his reasoning and conclusion.
The decision of the Lower Court is affirmed and the Appeal is dismissed with N50,000.00 costs to the 1st Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the benefit and read before now the lead judgment of my learned brother, Clara Bata Ogunbiyi, JCA and I agree with the review, reasoning and conclusion reached therein, to the effect that this appeal lacks merit and deserves nothing but a resounding dismissal. The same is accordingly dismissed by me. I order accordingly and abide by all the orders made in the said lead judgment of my learned brother, Ogunbiyi, JCA, including the orders as to costs. Appeal dismissed.
Appearances
Davitz I. Ogudinma Esq.For Appellant
AND
Francis N. Okafor Esq. for the 1st Respondent
2nd Respondent absent and not represented.For Respondent
