LIMAN GANDI v. ALH. ABDULKADIR YAHAYA
(2018)LCN/12191(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/91/2017
RATIO
DAMAGES: SPECIAL DAMAGES
“Special damages, along with its counterpart, General damages are usually classified as compensatory damages and are both designed to return persons to the position they were prior to the alleged wrong or injury suffered. Special damages are therefore, based on measurable Naira amounts of actual loss and it is for this reason that they are expected to be specially pleaded and strictly proved. In actual fact special damages are damages that are reduced to a ‘sum certain’ See the case of NGILARI vs. MOTHERCAT LTD (1999) LPELR-1988(SC): see also the case of KOSILE vs. FOLARIN (1989) LPELR-1705 (SC) and a host of other decisions of Court on the subject. In the case of OSHIJINRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR -2799 (SC), the Supreme Court per COKER, JSC, had this to say on the subject: ‘A Court trying a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified.'” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
LIMAN GANDI Appellant(s)
AND
ALH. ABDULKADIR YAHAYA Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Justice Sokoto in Suit No. SS/51/2011 delivered on the 20th day of February, 2017 in which the Court granted the reliefs of the Respondent who was Plaintiff and against the Appellant who was Defendant.
On the 11th of July, 2011, the Respondent took out a Writ of Summons against the Appellant and claimed sundry monetary reliefs as endorsed in paragraph 20 of the Respondent’s Statement of Claims at page 5 of the records. The Statement of Claims of the Respondent at the Court below appears at pages 4 – 6 of the records while the Statement of Defence of the Appellant as Defendant is at pages 7 – 8 of the records.
In seeking to prove his case, the Respondent called four (4) witnesses who testified as PWs 1 – 4 at pages 16 – 32 of the records while exhibit Exhibits A ? A13, B1 – B3 were tendered by the Respondent. At the closure of the case of the Respondent, the Appellant testified for himself as the DW1 and called one other witness who testified as DW2 and then closed his defence. See pages 40 – 52 of the records.
Learned Counsel to the parties filed written addresses, which they exchanged and adopted at pages 53 – 75 of the records. At the close of trial, the learned trial judge on the 20th day of February, 2017 delivered a well-considered Judgment against the Appellant as Defendant whilst granting the reliefs of the Respondent as Plaintiff. See pages 79-118 of the printed records.
Aggrieved by the judgment of the Court below, the Appellant has appealed to this Court. The original Notice of Appeal was filed on the 13th March, 2017. See pages 119 -124 of the records. By the Leave of this Court granted on the 27th of November, 2017 the original Notice of Appeal was amended. There are six (6) Grounds of Appeal filed. The Appellant, however, abandoned ground 5 of the Amended Notice of Appeal and the ground abandoned is accordingly struck out. The Grounds of Appeal are hereby reproduced without their particulars as follows:
GROUNDS OF APPEAL:
1. The Court below erred in law when it entered its judgment in favour of the Respondent and against the Appellant in the sum of ?1,037,400:00 (One Million, Thirty Seven Thousand, Four Hundred Naira Only) being special damages arising from the sale of dealer of Women Wrappers in the absence of any concrete evidence that same was sold on credit basis to the Appellant by the Respondent and this has occasioned a Miscarriage of Justice.
2. The Court below misdirected itself in law when in entering judgment in favor of the Respondent and against the Appellant in the sums of N1,037,400:00 (One Million, Thirty Seven Thousand, Four Hundred Naira Only) it wrongly held in simplistic terms that there was an admission that the goods were delivered to the Appellant by the Respondent without adverting its mind on what basis was the goods delivered to the Appellant and this has occasioned a Miscarriage of Justice.
3. The Court below erred in law when in entering judgment in favour of the Respondent and against the Appellant the sums of ?1,037,400:00 (One Million, Thirty Seven Thousand, Four Hundred Naira Only), it failed to properly evaluate both the oral and documentary evidence tendered before it and this has occasioned a Miscarriage of Justice.
4. The Judgment of the Court below is against the Weight of Evidence.
5. The Court below erred in law and which had occasioned a miscarriage of justice when it failed to consider whether there was Novation in the transaction between the appellant and the Respondent and its effect thereof before entering judgment against the Appellant and in favour of the Respondent.
6. The Court below erred in law and which had occasioned a Miscarriage of Justice when it placed reliance on the evidence of PW1 & PW2 in the face of material contradictions and failed to hold that the contradictions inherent in the evidence of PW1 & PW2 at the Court below should have led to the total rejection of their evidence.
ISSUES FOR DETERMINATION:
Three issues were nominated for the determination of this Appeal by the Appellant as follows:
1. Was the Court below correct in law in placing reliance on the contradictory evidence of PWs 1 & 2 and using same evidence to find in favour of the Respondent? (Ground 6).
2. Did the Court below properly evaluate the evidence adduced before entering judgment in favour of the Respondent? (Ground 3).
3. Was the decision of the Court below in granting all the reliefs of the Respondent correct in law? (Grounds 1, 2 & 4).
On the part of the Respondent, the issues raised by the Appellant were promptly adopted and it was in respect of these issues that learned Counsel to the parties addressed Court extensively citing a number of authorities in support of their positions. The Appellant’s Brief of Argument filed on the 9-4-2018, and deemed filed on the 15-5-2018 was settled by IBRAHIM ABDULLAHI ESQ., while the Respondent’s Brief of Argument filed on the 6-6-2018 was settled by A. Y. ABUBAKAR ESQ. The Appellant’s Reply Brief was filed on the 21-6-2018. At the hearing of the Appeal on the 18-10-2018 learned Counsel adopted their Briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Was the Court below correct in law in placing reliance on the contradictory evidence of PWs 1 & 2 and using same evidence to find in favour of the Respondent?
In arguing this issue, learned Counsel drew attention to the evidence of the PW1 at page 17 lines 14 – 21 of the records where he gave evidence to the effect that it was on the 11th of December 2009 that PW2 (Respondent) gave him instructions to give the Appellant 160 dealers of wrappers and that the cost of the said 160 dealers was in the sum of N13,120,000:00 (Thirteen Million, One Hundred And Twenty Thousand Naira only). He further drew attention to the evidence of the PW1 under cross examination at page 18 lines 6-7 of the records where he further confirmed in his evidence the above.
In contrast to the evidence of the PW1, Counsel also drew attention to the evidence of the PW2 (the Respondent in the instant appeal) where in his examination in chief at the Court below at page 24 lines 10 – 16 of the records, he stated to the contrary that on the 11th of December 2009, it was 130 bales of wrappers that was purportedly supplied to the Appellant and not 160 as testified by PW1 and that the total cost of the 130 bales was in the sum of N10,400,000:00 (Ten Million, Four Hundred Thousand naira Only.)
The argument of Counsel here is that if the evidence of PW1 which the Court below believed is taken into consideration it would mean that the purported 160 bales purportedly supplied by the PW1 at the request and prompting of the PW2, multiplied by the cost price per bale which PW2 pegged at N86,000.00, it will mean that the purported total value of what PW1 said he supplied would amount to the tune of N13,760,000:00 (Thirteen Million, Seven Hundred and Sixty Thousand Naira only) and not the sum of N13,120,000:00 (Thirteen Million, One Hundred and Twenty Thousand Naira only) which the PW1 pegged it at. See page 17 lines 18 – 19 of the records.
Similarly, Counsel argued that if the evidence of the PW2 in Chief is taken as correct and which the Court below believed, the purported 130 bales of wrappers which PW2 said he ordered PW1 to supply to the Appellant at N86,000 per bale by a simple arithmetical calculation will amount to N11,180,000:00 (Eleven Million, One Hundred and Eighty Thousand Naira) and not N10,400,000:00 (Ten Million, Four Hundred Thousand naira Only) as alluded to by the Respondent in his evidence in chief at page 24 lines 10 – 16 of the records.
Learned Counsel further argued that if the evidence of the PW2 given in chief at page 24 lines 10 – 16 of the records to the effect that the total value of the goods supplied was N10,400,000:00 (Ten Million, Four Hundred Thousand naira Only and that the cost of one bale is N86,000, it would mean that what was purportedly supplied to the Appellant was only 120 bales with 2 pieces of wrappers (since each cost N400) and not 160 nor 130 bales based on the contradictory evidence of PWs 1 & 2 respectively.
It was further argued that if each bundle of wrapper has 200 pieces and a piece of wrapper cost N400 as per the evidence of PW2 (Respondent), it will mean that a bale of wrapper will cost N80,000:00 as opposed to N86,000:00 pegged by PW2 at page 24 lines 10 – 16 of the records. Counsel therefore submitted that the evidenced of the PW1 and PW2 are self-defeating in nature and materially in conflict with each other vis-a-vis with the claims of the Respondent at the Court below and for which judgment was entered in favour of the Respondent by the trial judge.
In yet another instance of contradiction which learned Appellant’s Counsel drew Court’s attention to, is on the evidence of the Respondent at the Court below, which has to do with the actual balance due and purportedly payable to the Respondent. At page 25 lines 3 – 9 of the records, he said that the Respondent, while testifying as PW2 stated that after all deductions the Appellant was indebted to him in the sum of N1,037,400.00.
Counsel captured the evidence of the PW2 (Respondent) at page 25 lines 3-9 and argued that a simple arithmetic will reveal that if the sum of N1,271,400:00 is deducted from the purported last payments of N24,000:00 said to be made by the Appellant, the balance will be N1,247,000:00 and not N1,037,400:00 as alluded by the Respondent. Counsel therefore argued that the evidence of the Respondent in itself shows that he was never consistent in the proof of the actual indebtedness of the Appellant to him. According to Counsel the calculations of the purported indebtedness of the Respondent were disingenuously made and at variance with pleaded facts.
Counsel submitted that in law, where the evidence of a witness on oath is different from that stated in the Statement of Claims or materially contradicts his evidence on oath in the same proceedings, it is to be rejected and should not be given the honour of a truthful witness.
Counsel cited the case of IGE vs. AKOJU (1994) 4 NWLR (PT. 340) 535 AT 546 PARA H, on the issue of contradictions. See also the case ofMONOPRIX (NIG) LTD vs. EKENWA (1995) 3 NWLR (PT. 383) 325 AT 341 PARA C.
On the lower Court’s observance that the discrepancies and inconsistencies in the evidence of the PW1, 2 and 3 were mere variances which amounted to no serious issues, Counsel argued that the onus of pleading relevant facts as it relates to pleading special damages (to which monetary claims relates) lies on the Respondent at the Court below and that he failed to plead the actual number of bales of wrappers purportedly supplied to the Appellant, but only pleaded amount of monies paid and the outstanding balance due to him.
Counsel said that it was only in the Respondent’s examination in chief that he gave contradictory evidence of the quantity and their monetary value when balanced with the evidence of the PW1. Apart from this, Counsel said that the Appellant in his pleadings at the Court below denied all the monetary calculations of the Respondent and puts the Respondent to the strictest proof of same. See pages 7 – 8 of the records.
Still on the lower Court’s observation at page 117 lines 4 – 10 of the records that the evidence of PW1 and PW2 only showed minor discrepancies, Counsel argued that there were no explanations from the Respondent and his witnesses about the reasons for these contradictions and that the Court below by law cannot find explanations for the contradictory evidence of witnesses.
Counsel cited the case of OKEJI vs. OLOKOBA (2000) 4 NWLR (PT. 654) 513 AT 530 PARAS D – E. Counsel also submitted that the contradictory evidence of the PW1 & PW2 only opened the flood gates for speculation in the case of the Respondent at the Court below and that speculations cannot and will never be the functions of a Court of law. He cited the case of IGABELE vs. STATE (2006) 5 LRCNCC, 30 AT 44JJ & 45D RATIO 2. Counsel urged the Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE TWO:
Did the Court below properly evaluate the evidence adduced before entering judgment in favour of the Respondent? (Ground 3)
The submission of Counsel under this issue is that the Court below did not properly evaluate the evidence adduced before it before arriving at the decision entering in which it entered judgment in favour of the Respondent and against the Appellant. The argument of Counsel is that a hard look at the judgment of the Court below would reveal that pages 79 – 110 of the records contains the recital of the evidence of witnesses and the restatement of the submission of Counsel to the parties. According to Counsel, the Court below neither formulated any issues for its determination nor did it adopt any of the issues formulated for the determination of the Court by the parties, thence, the Court below had nothing to guide it in the resolution of the dispute before it.
Counsel further argued that throughout the length and breadth of the judgment of the Court below, there was no proper evaluation and no assessment of facts and/or evidence known to law leading to the grant of the Respondent’s claims to wit: a calculation as to the actual sums due and payable to the Respondent. He also argued that there was no evaluation as to actual value of each bale, what was the actual bale supplied in view of the contradictory evidence of PW1 & PW2, whether the arithmetical calculations of the Respondent while testifying as PW2 tallies with the claims of the Respondent at the Court below and assessments of the documentary evidence tendered. Counsel therefore adopted his arguments made while arguing issue one, especially as it relates to the question of the assessments which the Court ought to have made but failed to do so.
According to Counsel, the law is settled that a mere restatement of the evidence led before the Court does not amount to an assessment and evaluation of such evidence. He cited the cases of ATOYEBI vs. GOVERNOR OF OYO STATE (1994) 9 KLR (PT. 21) 1 AT 22; UWEGBA vs. A. G. BENDEL (1986) 1 NWLR (PT. 16) 303.
In zeroing on the evaluation of the evidence adduced before the Court below, Counsel disclosed that the Court relied on the evidence of PW1 and PW2 who also doubled as the Respondent as well as the PW3 in arriving at the conclusion that the Appellant was indebted to the Respondent by giving 130 bales of goods to the Appellant on credit basis. The argument of Counsel is that the Court below never properly evaluated the evidence of PWs 1, 2 and 3 in relation to the issue of how the outstanding balance was arrived at in view of the calculations made by PW1 and PW2 whilst giving their testimonies.
For example, Counsel said that the PW3 whom the Court below heavily placed reliance upon, testified under cross – examination that the goods supplied and which formed the basis of the substantive suit at the Court below were never given to the Appellant on credit basis. See page 25 lines 27 – 33 of the records. Counsel urged this Court to take judicial notice of Appellant’s argument under issue one and that if this Court does that, the Court will come to the ultimate conclusion that proper evaluation was lacking in the lower Court?s assessment of evidence.
Apart from these, Counsel argued that the Court below did not evaluate the pieces of evidence of DW1 and DW2 before coming to the conclusion that the Appellant was purportedly indebted to the Respondent by virtue of goods supplied by the Respondent to the Appellant on credit basis and why the Court below preferred the contradictory evidence of PW2 to that of PW1 in relation to the same subject matter. He also drew attention to the fact that the no evaluation was made in respect of Exhibits B – B13 even though DW1 in his evidence in Chief and during cross examination denied that he was never issued with Exhibits B – B13 and that his signatures are not on the documents.
For these reasons, and also the fact that the Court below never adverted its mind to these obvious facts, Counsel argued that the findings reached by the Court below at page 117 lines 1-10 of the records were erroneous, especially when they were done without any proper evaluation of the evidence of Exhibits A – A13 and B – 13. He added that Exhibits B1- B13 relied upon by the Court below in its judgment were not properly evaluated in the face of the denial of DW1 at the Court below that he neither signed Exhibits B1 – B13 nor was he issued with same. The argument of Counsel on account of these is that there was failure of the Court below to properly evaluate the evidence before it and that where such is the case it is an invitation of the Appellate Court to intervene. He cited the cases of ADELEKE vs. IYANDA (2001) FWLR (PT. 60) 1581 AT 1592 R6; ANYAEGBU vs. HUSSAINI (2001) FWLR (PT. 84) 247 AT 254 R1.
The contention of Counsel is that where a trial Court has not examined an exhibit thoroughly, the Court of Appeal is entitled and indeed enjoined to do same and make a finding of facts. He cited the case of EZE vs. A.G. RIVERS STATE (2002) FWLR (PT. 89) 109 AT 117. Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE THREE:
Was the decision of the Court below in granting all the reliefs of the Respondent correct in law?
In arguing this issue, Counsel submitted that by Section 131 (1) of the Evidence Act 2011, the burden of proof of entitlement to the reliefs claimed before the Court rests squarely on the shoulders of the Plaintiff and that this burden by Section 134 of the Evidence Act 2011 is on the balance of probabilities or preponderance of evidence. He cited the cases of ALH. UMARU & SONS LTD vs. IDRIS (1999) 6 NWLR (PT. 60) 330; ITAUMA vs. AKPE-IME (2000) 7 SC (PT. II) 24 and IBRAHIM vs. ABASI (1998) 13 NWLR (PT. 81) 167.
He further argued that the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. He said that if such party adduces evidence which ought reasonably to satisfy a Court and that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. He cited the Supreme Court decision in ORJI vs. DORJI ILE MILLS (NIG) LTD (2009) LPELR-2766(SC).
Counsel further argued that the burden of proof is not static but changes like a chameleon in the course of proceedings. See the case of COP & ANOR vs. OGUNTAYO (1993) LPELR-886(SC). See equally the case of OSAWARU vs. EZEIRUKA (1978) 6-7 SC. 135.
According to learned Counsel, the gist of the Respondent’s case from the pleaded facts at the Court below, precisely in paragraph 20 of the Statement of Claims at page 5 of the records is that the Respondent as Plaintiff is claiming the sums of N1,037,400.00 only being special damages arising from the sale of 100 dealer of women wrappers to the Defendant plus cost of action. Counsel said that the Respondent in the same page 5 of the records gave a break down as follows:
SPECIAL DAMAGES: 100 Dealer of Super Print (Mairoba)
COST: N4,377,550:00
PAID: N3,340,150:00
BALANCE: N1,037,400:00
The submission of Counsel is that at page 24 lines 10 – 16 of the records, PW2 stated in chief thus:
“… I can remember on the 11th day of December, 2009 Liman Gandi on that date bought goods from me 130 bales of Atamfa super prints. Each bale contained two hundred pieces of wrapper. The total cost of the 130 bales I sold to Liman Gandi is N10,400,000:00 (Ten Million, Four Hundred Thousand Naira Only). Each piece of Atamfa cost N400 and 1 bale of Atamfa cost N86,000:00…”
The contention of Counsel is that by the evidence of the PW2, a bale cost N86,000.00 and that if this piece of evidence is anything to reckon with, it means that 100 bales would cost N8,600,000.00 (Eight Million, Six Hundred Thousand) Naira Only. He said that on the basis of the admitted facts of the Respondent in paragraph 20 of the Statement of Claims at page 5 of the records, a summation of the cost price, the monies paid and the purported outstanding balance will give a total of N8,755,100.00 (Eight Million, Seven Hundred and Fifty Five Thousand, One Hundred Naira) which is far above the N8,600,000.00, which PW2 gave evidence of and which would be the cost of 100 bales of Wrappers.
In any event, Counsel argued that contrary to the pleadings of the Respondent in specifying his special damages, it is 50 bales of Wrappers as opposed to 100 bales of wrappers that will approximately give the sum of N4,377,550.00 as the cost prize and as pleaded in paragraph 20 of the Statement of Claim of the Respondent at the Court below. It was further argued that while the pleadings of the Respondent showed that the sums of N3,340,150.00 was paid by the Appellant to the Respondent, the evidence of the PW2 at page 25 lines 1-11 of the records showed that the Appellant only paid the sums of N3,130,150.00 (Three Million, One Hundred and Thirty Thousand, one Hundred and Fifty Naira) and that this evidence of the PW2 goes contrary to pleaded facts and thence goes to no issue.
Furthermore, Counsel argued that it was the evidence of the PW2 at page 24 lines 12 – 13 and lines 15 – 16 of the records that each bale of Wrapper contains 200 pieces and that each piece of Wrapper cost N400. He said that by simple arithmetical calculation, it would mean that a bale would cost N80,000.00 (Eighty Thousand Naira only); that therefore what will give the approximate cost of N4,377,550.00 specified in paragraph 20 of the Statement of Claim of the Respondent is 54 bales of Wrappers and not 100 bales or dealer.
Learned Counsel drew attention to the fact that the hall mark of the Respondent’s claims at the Court below is the extending of goods on credit worth the balance sum of N1,037,400:00 to the Appellant as outstanding. He added that the case of the Appellant by pleaded facts and from the parole evidence of DW1 & DW2 is that the purported goods were not given to the Appellant on credit basis but that the Respondent uses the Appellant as a front to supply the goods to accredited and well known customers of the Respondent. Counsel referred to paragraphs 4, 5, 6 & 8 of the statement of defence of the Appellant as well as the parole evidence of DW1 & DW2.
By paragraphs 11 and 12 of the Respondent’s Statement of Claim, Counsel argued that the tacit admission of of the Respondent showed that the goods were distributed to the accredited and well known customers of the Respondent when the Respondent requested the Appellant to bring to him the people he distributed the goods to for him to make confirmations, which he made by virtue of the averments in paragraphs 12 of the Statement of Claim, where after making the confirmations agreed to continue his relationship with them in respect of goods distributed which amounted to the tune of N3,106,150.00.
Counsel argued that even though the Appellant denied paragraph 12 that the customers to whom the Respondent agreed to deal with were only in relation to the sum of N3,106,150.00 worth of goods supplied; that the burden of proof therefore rests squarely on the Respondent to proof same by giving the particulars of such customers he (the Respondent) agreed to deal with as well as particulars of the monies they have paid and the worth of goods supplied to the said customers out of the purported total amount of goods that were purportedly supplied to the Appellant.
According to learned Counsel, this was clearly not done by the Respondent. He said that in law, since the monetary claims as claimed by the Respondent at the Court below was in the nature of special damages, the onus lies on the Respondent to prove same strictly and that special damages must be specifically pleaded and proved at the Court below.
He referred Court to the cases of IJEBU – ODE LOCAL GOVT. vs. ADEDEJI BALOGUN & CO (1991) 1 NWLR (PT. 166) 136; OSUJI vs. ISIOCHA (1989) 3 NWLR (PT.111) 623 and BADMUS vs. ABEGUNDE (2001) 3 WRN 40.
Learned Counsel also referred to the evidence of the PW2, which he said is equally to the effect that the Respondent agreed to be dealing with the people that goods were supplied to directly. He said that if this is really the case, it means that there has been a Novation and the Appellant is not privy to whatever understanding the Respondent had with the customers and that if there is any subsequent liability, then it is not binding on the Appellant.
In connection with this position, Counsel referred Court to the examination in chief of the DW1, where he gave a graphic picture of how he brought the list of debtors to the Respondent and the Respondent agreed to deal with them directly. For this reason, Counsel submitted that the Appellant incurs no further liability. He referred to the case of AFRICAN CONTINENTAL BANK LTD. & ANOR vs. AJUGWO (2011) LPELR-3637(CA).
On the question of the nature of the agreement between the Appellant and the Respondent, Counsel referred to the evidence of the PW3 under cross examination where he said that he did not know. It was therefore contended by Counsel that if truly goods were given out to the Appellant on credit, that there must have been conditions attached to it i.e. the period of payments and interest; but that under cross examination, the PW2 stated that there were no conditions attached as to the period of repayments (if any) or mode of payments.
To demonstrate that the goods were not given on credit, Counsel told Court how the Appellant testified as DW1 and that the substance of his evidence is that the Respondent uses him as a front to distribute goods to accredited and well known customers of the Respondent and after the said sales, the Appellant would collect the monies realized and pay same back to the Respondent. And that it was the Respondent who fixes the prices for which the goods are to be sold and that his signature is not on Exhibits A – A13 and finally that he was not indebted to the Respondent. Counsel referred to the testimony of the Appellant under cross examination when he testified as DW1 and denied the contents of Exhibits B – B13.
This Court’s attention was also drawn to the testimony of the DW1 under cross examination where he denied that the PW3 witnessed when goods were given to him on credit basis. This Court was also told how the DW1 under cross examination gave the conditions relating to the understanding he had with the Respondent to show that no goods were given to him on credit and how he stated under cross examination that when the monies were N4,377,550.00, the Plaintiff agreed to directly collect the monies from the customers. Counsel also argued that this evidence accords with paragraph 11 of the Statement of Claim of the Respondent and how under Cross Examination the Appellant gave a rundown of the names of the customers that were indebted to the Respondent and for which the Respondent decided to deal directly.
Learned Counsel finally submitted that from all ramifications of the case of the Respondent at the Court below, the Respondent failed to discharge the evidential burden of proof to found his claims before the Court and which claims ought to be dismissed. He urged this Court to resolve this issue in favour of the Appellant and against the Respondent.
RESPONDENT
ISSUE ONE:
The argument of learned Respondent?s Counsel on this issue is that the Appellant never denied in specific term in his statement of defence that he did not collect those goods from the Respondent, and that all that he based his defence upon is that the Respondent advanced those goods to him not on credit basis but as front to distribute the said goods to the well-known customers. Counsel referred this Court to paragraphs 3, 4, 5, 6, 7 and 8 of the Appellant’s Statement of Defence at pages 7-8 of the Record.
Learned Counsel also drew attention to paragraph 1 of the Statement of Defence which clearly embodies the quantity of the goods given to the Appellant and the exact amount standing to the credit of the Appellant, where the Appellant as Defendant averred at page 7 of the records as follows:
1. The defendant admits paragraph 1, 2, 3, 4, 11 and 14 of the Statement of Claim.”
With respect to the admission made by the Appellant and which included the an admission made of the of the Respondent’s paragraph 14 of the Statement of Claim, Counsel submitted that the said paragraph embodied the essential facts contained in the claim of the Respondent, where he averred at page 5 of the records as follows:
“14. That equally on the 20/11/10 and 30/11/20, the Defendant paid a total of ?80,000.00 only thereby bringing down the balance unpaid to ?1,091,400.00 only.”
The submission of Counsel here is that by making an admission, under Section 123 of the Evidence Act, 2011 (as amended), the facts averred by the Respondent in paragraph 14 of the Statement of Claim needs no further proof. Consequently, all the hullaballoo made by the Appellant, on the issue of discrepancies and inconsistencies automatically become of no relevance. On the question of facts admitted and which needs no further proof, Counsel cited the ASUEN & ANOR vs. OMOREGIE (2012) LPELR-7916 and further submitted that the differences in quantity of goods taken and the exact amount which the Appellant made a lot of fuss about in his Brief of Argument, together with any perceived inconsistencies in the evidence of the PW1 and 2 are mere discrepancies which do not strike at the roots of the substance of the case of the Respondent as Plaintiff. He buttressed his arguments with the case of WACHUKWU vs. ONWUNANNE (2011) 14 NWLR (PT. 1266) 1 AT 27 PARA. E-H where the apex Court had this to say on the subject:
“It is not all contradictions that will result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such rejection of evidence.”
It was further argued by Counsel that the so called inconsistencies the evidence of the PW1 and PW2 are not material as to be pivotal to the case of the Respondent as Plaintiff, and that the facts that form the basis of the Respondent’s case is that he gave goods to the Appellant on credit and that the Appellant failed to pay the remaining balance of N1,037,400.00. According to learned Counsel, the content of Exhibits, A-A13, B-B13, are clear as to the point that the transaction took place and that the Appellant made payment in respect of same and that the sum of N1,037,400.00 remains outstanding, which the Appellant in his evidence did not deny, except denying that he did not sign those exhibits.
The argument of Counsel here is that in whatever it is looked at the Respondent established its case against the Appellant through evidence that the Appellant collected the goods on credit; and that there is the balance of N1,037,400.00, unpaid. Counsel referred this Court to the contents of the documentary evidence tendered by the Respondent especially exhibit A & A3, B & B13 which clearly showed the Appellant owes the Respondent. He added that throughout the length and breadth of the Appellant’s Statement of Defence he never denied collecting the Respondent’s goods and that the only thing he contested there is that the goods were given to him not on credit basis but rather as front to distribute to customers. As far as Counsel is concerned, facts admitted need no further proof. See Section 123 of the Evidence Act. ASUEN & ANOR vs. OMOREGIE (2012) LPELR-7916.
Still on the question of inconsistencies raised by the Appellant, Counsel submitted that it is typical in giving testimonies before the Court where different witnesses to have to be called and that due to the passage of time and the vicissitudes of human affairs, which can affect the acuity of human reasoning, differences and inconsistencies are bound to occur as it will be impossible for witnesses to speak on the same event with equal accuracy. Counsel cited the case of EMIATOR vs. THE STATE (1975) 9-11SC 107. See also the case of OSUOHA vs. THE STATE (2011) 16 NWLR (PT. 1219) 364 AT 391 PARA C-D.
Counsel also contended that even if such inconsistency exists in any material particular as perceived by the Appellant, it is resolved by the Appellant’s own admission while testifying as DW1 during cross examination where, at pages 42-46 of the record of appeal he admits collecting the goods from the Respondent even though he has said that the goods were not given to him on credit basis. This, admission, Counsel further contended is one that is capable of dispensing with the impact of any inconsistencies if at all. His argument is that this admission has lessened the burden placed on the Respondent with respect to the need of having to strictly establish his claim as facts generally admitted need no further proof.
To buttress his points on the issue, Counsel postulated that admission is the best evidence in our evidential jurisprudence and cited the case of TAIWO vs. ADEGBORO (2011) ALL FWLR (PT. 584) 52 AT 67. Counsel urged this Court to resolve this issue in favour of the Respondent.
ISSUE TWO:
On the question of whether the trial judge did evaluate the evidence presented before it properly, Counsel submitted that the Lower Court properly evaluated and made a dispassionate consideration of all the evidence. In making this submission, Counsel saw the need to state the position of the law with respect to what the Appellate Court will do whenever there is complain of improper evaluation of evidence. To this end, Counsel cited the case of AREGBESOLA vs. OYINLOLA (2011) 9 NWLR (PT. 1253) 458 at 580.
Learned Counsel also contended that the next line of action is to find out whether the learned trial judge did comply with the restrictions or guide lines while reaching its decisions in the trial which culminated in this Appeal. In his further argument on the issue, Counsel said that from the records of Appeal at page 108 to 113 the learned trial Judge did not only narrate the evidence as claimed by Appellant but also went to the extent of appraising the evidence, giving each piece of evidence its appropriate probative value and supporting his judgment with reasoning in line with the laid down procedure enshrined in our laws. Counsel cited the case of AREGBESOLA vs. OYINLOLA (Supra).
With this at the background, Counsel argued that a close look at the record of proceedings specifically pp110-118 will show that the learned trial Judge after restating the facts of the case as deduced from the evidence, identified the issues raised by the learned Counsel, which are germane to the logical conclusion of the case, went ahead to dispassionately appraise the evidence vis–vis the issue and summed up with the weight he deemed fit to attach to each piece of evidence before reaching his decision on each of these issues. Counsel stated in addition, that the judgment of the Court below is not just on restatement of evidence as the Appellant alleged, but rather rests on sound intellectual dexterity resulting from an in-depth and fair consideration of the evidence presented by the both parties.
Learned Counsel drew attention to the heavy weather which he said that the Appellant made on the conclusions reached by the lower Court to the effect that the goods were sold on credit basis; and argued that the learned trial Judge was wrong to have made that conclusion on the evidence of Respondent’s witnesses and contents of exhibits A-A13 and B-B13, whilst disregarding the Evidence of DW1 and DW2. The contention of Counsel here is that the evidence the DW1 (Appellant) is not capable of being believed because of so many gaps embedded in it. In support of this assertion, Counsel drew attention to the evidence of the Appellant at page 41 lines 3-5 of the record of Appeal where he said:
“After I collected the money from customers and took to Abdulkadir Yahaya he used to give short note acknowledging that he received the money.”
In the face of the foregoing, where the Appellant has denied exhibits A to A13 as the short note the Respondent used to issue to him any time he made payment, the contention of Counsel is that the Appellant at the same time has failed to present those short notes in evidence before the trial Court. For this reason, Counsel argued that the trial Court will be right in admitting exhibits A to A13 against the Appellant. Equally also the Appellant continues at page 42 lines 8-9 of the record of Appeal thus:
“One Aliyu Umar is my witness that the Plaintiff used to give me goods to distribute to customers. Another of my witnesses is Mukhatri Maikoni and Mustapha Malami.”
According to learned Counsel, once again, the Appellant failed to call any such persons to testify on his behalf in proof of his assertion that Respondent used him as a front to distribute goods to customers. He also said that all of these show the Appellant as an inchoate witness not capable of swaying the mind of a Court in believing him. Counsel also argued that where a party alludes to evidence that show the existence of certain facts or document, such facts or document must be produced and that failure to produce it will lead to a presumption that if such document or fact is produced, it will be against the person alleging their existence. He supported this submission with Section 167 of the Evidence Act, 2011. See the case of CHINEKWE vs. CHINEKWE (2010) 12 NWLR (PT. 1208) 226 AT 231.
Counsel urged this Court to resolve this issue in favour of the Respondent.
ISSUE THREE:
Under this issue, this Court is once again reminded of the commercial relationship which existed between the parties, involving the supply of Wrappers Cloths to the Appellant on credit bases and under which the Appellant was expected to be paying back on installments. The Court was also told that upon receipt of the goods the Appellant made some payments by installments to offset his Indebtedness to the Respondent bringing his balance to the tune of N1,037,400.00. The Court is also made to understand that the highlight of Respondent’s Claim is that the Appellant has been his customer and that he usually gave the Appellant goods on credit.
The Court was also told that the Respondent, in proving his claim called three (3) witnesses and tendered Exhibits A-A13, B-B3. Counsel added that all the testimonies of the witnesses called by the Respondent were on all fours that the Respondent gave the wrappers to the Appellant based on credit and not as distributor. According to Counsel, the PW1, one Nura Abdukadir testified that he was instructed by the Manager to give the Appellant goods and he did as instructed. That he gave the goods to the Appellant personally and the Defendant took delivery. Counsel said that the PW2, Abdulkadir Yahaya, who is the Respondent herein, told the trial Court that he and Appellant has a business relationship conducted on credit basis and in which the Appellant later pays back by installments.
Against the background of the foregoing, Counsel argued that it is glaring from the evidence of the PW2 and Respondent that there was never a time the Respondent agreed to give goods to the Appellant as a front to distribute to the Respondent’s customers and that all the people the Appellant transacted with did so on own personal capacity.
Learned Counsel also drew attention to the evidence of the PW3, one Kabiru Yahaya. He is the Manager of the Respondent’s shop and that while testifying before the Lower Court stated that he knew Liman Gandi as one of their customers that normally buys goods on credit basis from them; that on the 11/12/2009, based on the instruction of the Respondent he instructed the Storekeeper (i.e. PW1) to release to the Appellant 130 bales of wrappers super prints at N10,400,000.00 which the Storekeeper did. He also stated that the Appellant did not make any payment at the time he collected the goods. According to this witness, on each occasion that the Appellant makes a payment by installment, he issued a receipt evidencing the payments made by the Appellant. Those were the receipts tendered and admitted in evidence as Exhibits A-A13 and B-B13.
The sum total of the arguments of the Respondent, therefore, in this Appeal, is that the Respondent discharged the burden placed on him by law through the evidence he presented before the trial Court, which are direct and credible. On account of this position, Counsel cited the Supreme Court in the case of AGBOOLA Vs. UBA (2011) 11 NWLR (PT. 1258) AT 383. Counsel urged this Court to resolve this Appeal in his favour.
On the issue of admission, which the Respondent had raised in his Brief of Argument, learned Counsel for the Appellant made a reply for which he filed a Reply Brief. In his reply brief, Counsel drew attention to the fact that the legal position where an admission is said to have been made is that it is a matter of fact for which the Court is enjoined to consider the totality of the paragraphs of the pleadings of that party and not the consideration of a paragraph in isolation. In support of this proposition, Counsel cited the case of TITILOYE & ORS vs. OLUPO & ORS. (1991) LPELR-3250 (SC), per KAWU, JSC at p. 19, Paras. B-D stated thus:
“Now to be able to decide whether there was an admission in the pleadings of the respondents which could have entitled the appellants to the Judgment of the Court, one must look at the respondents’ pleadings as a whole and not just consider each paragraph in isolation.” See also the case of KWARA HOTELS LTD. vs. ISHOLA (2002) 9 NWLR (PT. 773) PG. 604 @ 622 PARA. C, per ONNOGHEN, JSC (now CJN) stated thus:
“It is trite law that admission in the pleadings can be arrived, at after considering the whole pleadings of the parties and not just an isolated paragraph thereof -see Titiloye v. Olupo (1991) 7 NWLR (PT.205) 519; Anason Farms Ltd v. NAL Merchant Bank (1994) 3 NWLR (PT. 331) 241.’
The submission of Counsel on this issue is that if the Court carefully looks at the entirety of the pleadings of the Appellant at the Court below, the Court would come into agreement with the fact that there was no unequivocal admissions of the claims of the Respondent at the Court below and therefore all the cases cited by the Respondent relating to admissions are not applicable to the peculiar facts of this case and therefore are distinguishable, as they apply only in cases where there was a clear and unequivocal admission based on the entirety of the pleadings in the respective cases in which they arose and not as in the instant appeal where the situation is different.
Counsel urged this Court to allow the appeal of the Appellant.
RESOLUTION OF APPEAL
The amount claimed by the Respondent as Plaintiff against the Appellant as Defendant stands to the tune of N1,037,400.00 being special damages arising from the sale of 100 dealer of women wrapper clothes to the Appellant as Defendant plus the cost of this action. At page 5 of the printed records, is the particulars of Special Damages which is reproduced thus:
SPECIAL DAMAGES: 100 Dealer of Super Print (Mairoba)
COST: N4,377,550:00
PAID: N3,340,150:00
BALANCE: N1,037,400:00
In arguing this Appeal learned Appellant’s Counsel had contended that the Court below erred in law by placing reliance on the contradictory evidence of PWs 1 and 2 and using same evidence to found in favour of the Respondent. Counsel had further contended that the onus of establishing his claims which included special damages rest squarely with the Respondent as Plaintiff.
Special damages, along with its counterpart, General damages are usually classified as compensatory damages and are both designed to return persons to the position they were prior to the alleged wrong or injury suffered. Special damages are therefore, based on measurable Naira amounts of actual loss and it is for this reason that they are expected to be specially pleaded and strictly proved. In actual fact special damages are damages that are reduced to a ‘sum certain’ See the case of NGILARI vs. MOTHERCAT LTD (1999) LPELR-1988(SC): see also the case of KOSILE vs. FOLARIN (1989) LPELR-1705 (SC) and a host of other decisions of Court on the subject. In the case of OSHIJINRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR -2799 (SC), the Supreme Court per COKER, JSC, had this to say on the subject:
‘A Court trying a case should give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified.’
The contention of learned Counsel is that there are contradictions, inconsistencies and discrepancies in the evidence of the witnesses of the Respondents and that Court below erred in placing reliance on these spate of inconsistent pieces of evidence in giving judgment in favour of the Respondent as Plaintiff. To begin with at page 24 lines 10 – 16 of the records, the evidence of the PW2 is as follows:
“… I can remember on the 11th day of December, 2009 Liman Gandi on that date bought goods from me that 130 bales of Atamfa super prints. Each bale contained two hundred pieces of wrapper. The total cost of the 130 bales I sold to Liman Gandi is ?10,400,000:00 (Ten Million, Four Hundred Thousand Naira Only). Each piece of Atamfa cost ?400 and 1 bale of Atamfa cost ?86,000:00…”
A critical examination of the evidence of the said PW2 will show that a bale of cloth costs N86,000.00 and that what this contemplates is that 100 bales of cloth would cost N8,600,000.00 (Eight Million, Six Hundred Thousand) Naira Only. But on the basis of the admitted facts of the Respondent in paragraph 20 of the Statement of Claim at page 5 of the records, a summation of the cost price, the monies paid and the purported outstanding balance will give a total of N8,755,100.00 (Eight Million, Seven Hundred and Fifty Five Thousand, One Hundred Naira) which sum completely outstrips the sum of N8,600,000.00, which PW2 stated in his evidence as the cost of 100 bales of Wrappers. In the analysis presented by learned Appellant’s Counsel which I find rather germane in this matter is the fact that as opposed to 100 bales of wrapper which the PW2 testified about, it is actually 50 bales of wrapper that would approximately give the sum of N4,377,550.00.
Apart from this, while the pleadings of the Respondent showed that the sums of ?3,340,150.00 was paid by the Appellant to the Respondent, the evidence of the PW2 at page 25 lines 1-11 of the records showed that the Appellant only paid the sum of N3,130,150.00 (Three Million, One Hundred and Thirty Thousand, one hundred and Fifty Naira). Once again, the evidence of the PW2 goes contrary to pleaded facts and the consequence is that the piece of evidence goes to no issue.
Another inconsistency in the evidence of the PW2 is at page 24 lines 12-13 and lines 15-16 of the records where the PW2 stated that each bale of Wrapper contains 200 pieces and that each piece of Wrapper cost N400. By simple arithmetical calculation, it would mean that a bale would cost N80,000.00 (Eighty Thousand Naira only) and that what would give the approximate cost of N4,377,550.00 specified in paragraph 20 of the Statement of Claims of the Respondent is 54 bales of Wrappers and not 100 bales or dealer.
Yet another inconsistent aspect of the Respondent’s action is the fact of his insistence at the Court below that the nature of arrangement he maintained with the Appellant is one in which he consistently extended goods on credit worth the balance sum of N1,037,400:00 to the Appellant as outstanding. But based on the evidence of the Appellant and the facts pleaded by him, alongside the testimonies of the DW1 and DW2, what was stated was that the purported goods were not given to the Appellant on credit basis but that the Respondent uses the Appellant as a front to supply the goods to accredited and well known customers of the Respondent. See paragraphs 4, 5, 6 – 8 of the Statement of Defence of the Appellant as well as the testimonies of DW1 and DW2.
With these catalogue of woes presented in the form of inconsistencies and discrepancies, the reaction of learned Respondent’s Counsel is that it is typical due to the passage of time and the vicissitudes of human affairs, which can affect the acuity of human reasoning for differences and inconsistencies to occur. The trite position of the law is that special damages must not only be specially pleaded but must also be strictly proved and that what this translates in essence is that a haphazard arrangement of the facts coupled with an unsystematic and incoherent marshaling of events is hardly an acceptable way of proving special damages the way the Respondent had done in the instant case.
On the question of whether there was proper evaluation of evidence at the Court below, the short and simple answer is that upon a hard look at the judgment of the Court below, the issue of proper evaluation of evidence was far from the question. This Court cannot from all indications say that there was proper evaluation and assessment of facts and/or evidence known to law which led to the grant of the Respondent’s claims to wit: a calculation as to the actual sums due and payable to the Respondent.
What seem also to be completely lacking in the question of whether there was proper evaluation or not, was the question of actual value of each bale; the actual number of bales supplied in view of the contradictory evidence of the PW1 and PW2; whether the arithmetical calculations of the Respondent while testifying as PW2 tallies with the claims of the Respondent at the Court below, and assessments of the documentary evidence tendered. These are supposed to be the sort of revelations a proper evaluation is expected to throw up. This Court is therefore in agreement that a mere restatement of the evidence led before the Court does not amount to an assessment and evaluation of such evidence.
What also does not seem to add up is what the Court below had to do with the evidence of the PW3 whom the Court below heavily placed reliance upon and who testified under cross – examination that the goods supplied and which formed the basis of the substantive suit at the Court below were never given to the Appellant on credit basis. See page 25 lines 27 – 33 of the records against the flow of the case of the Respondent whose entire case had rested on the pedestal that the goods in question were given to the Appellant on credit basis. The attitude of the Appellate Court is that when once it is satisfied that the Court of trial did not properly utilize its advantages of seeing or listening to the witnesses then a special circumstance has been shown, the confirmation of the Appellate Court notwithstanding. So it has the right, indeed the duty to intervene. See the observation of NNAEMEKA-AGU, JSC in the case of EHOLOR vs. OSAYANDE (1992) NWLR (PT. 249) 524. See also OLUJINLE vs. ADEAGBO (1988) 2 NWLR (PT.75) 238; OJO vs. GOV. OYO STATE (1989) 1 NWLR (PT. 95) 1.
In the final analysis, this appeal succeeds and it is accordingly allowed. There shall be cost of N50,000.00 in favour of Appellant against the Respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the judgment of my learned brother Frederick O. Oho, JCA and I am fully in agreement with all the reasons therein and the conclusion that the appeal is meritorious.
It is accordingly allowed. I subscribe to the consequential orders made In the judgment.
AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment delivered by my learned brother, FREDERICK O. OHO JCA. l agree with his reasoning and conclusion that the appeal succeeds. I abide by the order as to cost in the lead judgment.
Appearances:
Ibrahim Abdullahi, Esq.For Appellant(s)
A.Y. Abubakar, Esq.For Respondent(s)
