MARIO JOSE ENTERPRISES LTD & ANOR v. DANGADO (2021)

MARIO JOSE ENTERPRISES LTD & ANOR v. DANGADO

(2021)LCN/14995(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, February 11, 2021

CA/KN/96/2018

RATIO

BRIEF: FUNCTION OF A REPLY BRIEF

Now, it is elementary that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PROCESS: ISSUE OF SIGNING AND ENDORSEMENT OF AN ORIGINATING PROCESS

However, the Supreme Court has held severally that the issue of signing and endorsement of an originating process by a legal practitioner, where the claimant sues with one as in the instant case, is a requirement of substantive law, and not of procedural law; that it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and that it is an issue that can be raised even at the Supreme Court for the first time – see for example, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Oliyide Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 549.

This Court agrees entirely with Counsel to the Appellants that it is a requirement for validity of an originating Court process that it should be signed by either the claimant, where he sues in person, or by his legal practitioner, where he sues by one, and that where the writ of summons is not so signed, it is null and void and cannot ignite the jurisdiction of the Court to hear and determine the case and it renders as nullities the proceeding conducted and judgment delivered thereon. There are a plethora of authorities on the point, including those referred to by the Counsel to the Appellants. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: RULES APPLICABLE IN INTERPRETING A DOCUMENT

It is elementary that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt 1188) 429. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PROCESS: MANNER OF ENDORSING COURT PROCESSES

It is correct that in his contributory judgment in the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 337-338, Rhodes-Vivour, JSC, suggested the perfect manner of endorsing Court processes when signing, thus: first, the signature of Counsel, which may be any contraption, followed by name of Counsel clearly written, and then who counsel represents, followed by the name and address of the Law Firm. This suggestion was re-echoed by the Supreme Court in other cases such as Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). There is, however, nothing in these cases that says that this suggested perfect manner of endorsement of Court processes is engraved in stone and that once it is not complied with in the exact manner and order, the signing of the Court process is invalid; none of the cases made such pronouncement. Thus, the fact that the signature of the legal practitioner who issued a Court process came after his name, instead of before it, cannot be a ground for nullifying the Court process.
The truth of the matter is that the Courts have set certain thresholds for what constitutes proper signing of Court processes and once the manner of signing a Court process falls anywhere between the threshold and the suggested perfect manner of endorsement of signature, the signing of the Court process is proper. Now, signature is defined as a person’s name or mark, written by that person or at the persons direction, it is also any name, mark or writing used with the intention of authenticating a document – Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment thus:
“… In signing the notice of Appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co. would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…”(underlining for emphasis)
This statement was quoted with approval by the Supreme Court in Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). Again, in Dankwambo Vs Abubakar (2016) 2 NWLR (Pt 1495) 157, Kekere-Ekun, JSC, said thus:
“I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any Court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act in the strict sense urged by learned senior counsel for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.”
In other words, the writing of the name of the legal practitioner, either in full or with his initials, on the originating process, apart from and in addition to the name of his law firm, meets the requirement of signing of a Court process by the legal practitioner under the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. In Michmerah International Ltd Vs Nigeria International Bank Ltd supra, this Court, relying on the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra, opined thus:

“I think on the above authority alone, I am not left in any doubt that Babatunde J. Fagbohunlu whose name featured in all the processes over the name of his Law Firm Aluko & Oyebode is a verifiable Legal Practitioner and human person registered to practice as a Legal Practitioner in Nigeria. In other words, upon reading the processes subject of this appeal, it is clear that they were signed by BABATUNDE FAGBOHUNLU OF ALUKO & OYEBODE. I do not think learned Counsel for the Appellant is right in submitting that the processes in contention were not signed by a verifiable human person legal practitioner, registered and qualified to Practice. I am sure upon reading the processes; any person desirous of verifying the credentials of the signatory may go ahead to search for the Legal Practitioner Babatunde Fagbohunlu from the Roll of Legal Practitioners at the Supreme Court. I am also sure that satisfactory personal appraisal of the processes will be sufficient to convince one that the processes do not bear any doubtful origin; they are processes that are simply and easily traceable to Babatunde Fagbohunlu.”

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. MARIO JOSE ENTERPRISES LTD 2. MARIO JOSE APPELANT(S)

And

MUKTAR GARBA DANGADO (ADMINISTRATOR OF THE ESTATE OF LATE ALHAJI BASHIR GARBA ADAMU) RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/323/2005 by Honorable Justice Patricia Mahmoud on the 10th of November, 2017.

The Respondent was the claimant in the lower Court and he originally commenced the action by means of an Originating Summons. The Originating Summons was apparently converted to writ of summons and consequent on which the Respondent filed a statement of claim and his claims against the Appellants were for:
i. A declaration that the Respondent was entitled to the agreed 5% commission in the sum of N64,026,806.47 being 5% of the total sum of N1,280,089,320.53 granted to the first Appellant as Export Expansion Grant as his agency commission.
ii. The sum of N64,026,806.47 being the sum of the agency commission due and payable by the Appellants to the Respondent.
iii. Damages for breach of action.
iv. Cost of the action.

The case of the Respondent in support of his claims was that sometime in the year 1999 the Appellants approached and engaged him to assist in

processing their Export Expansion Grant (EEG) documents and in finalizing the issuance of the NDDC Certificates for a consideration. It was his case that the first Appellant agreed in writing to pay him a commission of 5% of the total grant processed through him and/or through his efforts and that the commission rate was reviewed to 7% in October, 2000 and reviewed back to 5% in November, 2000. It was his case that he carried out the tasks successfully for the years 1999, 2000, 2001, 2002, 2003 and part 2004 and that the Appellants paid him the agreed commission for the years 1999, 2000, 2001 and 2002, but failed and/or neglected to pay him for the years 2003 and 2004 without any justification.

The Respondent detailed what was involved and the steps he took in processing the Export Expansion Grant (EEG) documents of the Appellants and in finalizing the issuance of the NDDC Certificates for the Appellants and it was his case that from 1999 to 2003 he was the sole agent commissioned to process and procure Export Expansion Grants (EEG) for and behalf of the first Appellant. It was his case that the approvals and certificates he obtained for the Appellants

for the year 2003 and part of 2004 were for (i) January 2003 in the sum of N51,657,410.63; (ii) April, 2003 in the sum of N56,221,960.12; (iii) June 2003 in the sum of N45,054,856.72; (iv) September, 2003 in the sum of N322,800,420.53; (v) December, 2003 in the sum of N560,372,234.62; and (vi) May 2004 in the sum N244,432,249.07, all totaling N1,280,536,129.52. It was his case that apart from the sum of N3 Million advanced to him by the first Appellant for the year 2003, the Appellants failed, refused and neglected to pay him the agreed 5% commission on N1,280,536,129.52 despite repeated demands.

In their response pleadings, the Appellants admitted engaging the Respondent to assist in processing their Export Expansion Grant (EEG) documents and in finalizing the issuance of the NDDC Certificates for a consideration and that the first Appellant agreed to pay the Respondent a commission of 5% of the total grant processed and NDDC Certificates issued and that the commission rate was reviewed to 7% in 2000 and reviewed back to 5%. It was their case that they terminated and discontinued with the services of the Respondent in September, 2003 and that they paid

him all the commissions due on the grants processed by him between 1999 and September, 2003 and that in September 2003, they engaged the services of Mrs. Aisha Obemeghie, who they employed as Financial Manager, to process the Export Expansion Grant (EEG) and finalize the issuance of the NDDC Certificates on behalf of the first Appellant. It was their case that they notified the relevant agencies in writing of the change of guard.

It was their case that the Respondent was specifically paid all his commissions for the processing of Export Expansion Grant (EEG) documents and for finalizing the issuance of the NDDC Certificate on behalf of the first Appellant for the months January 2003 in the sum of N51,657,410.63 and April, 2003 in the sum of N56,221,960.12 and that the Respondent collected and signed for same. It was their case that it was the Financial Manager of the first Appellant that processed the first Appellant’s Export Expansion Grant (EEG) and finalized the issuance of the NDDC Certificates June, 2003, September 2003, December 2003 and May 2004 and not the Respondent and that first Appellant did not give the Respondent the requisite letters to

process the grants for June 2003, September, 2003, December, 2003 and May 2004. It was their case that they fulfilled all their obligations to the Respondent and that, additionally, in September 2003 the Respondent collected the sum of N3 Million from the first Appellant for personal use and has refused to repay same despite repeated demands. They thus counterclaimed for the sum of N3 Million together with interest at the rate of 10% from date of judgment until liquidation.

In the reply to the defence and defence to counterclaim, it was the case of the Respondent that the Appellants did not terminate or bring his engagement to an end formally and that it was at the Export Promotion Council that he was informed that the Appellants had sent a lady to collect the certificates which he had processed to completion and that he was solely responsible for the processing of the Export Expansion Grant (EEG) and the finalization of the issuance of the NDDC Certificates collected Financial Manager of the Appellants. It was his case that all applications processed by him carried NXP numbers with his identification and that the applications processed by the Financial

Manager of the Appellants cannot carry the same NXP numbers and he put the Appellants on notice to produce copies of the NXP and certificates processed by him and collected by the Financial Manager. It was his case that the agreement between him and the Appellant for payment of commission was not for months or years worked, but for jobs executed and that he processed the Export Expansion Grant (EEG) and finalized the issuance of the NDDC Certificates for September, 2003 cutting across part of 2004 and the Appellants prevented him from collecting the certificates.

It was the case of the Respondent that he did not require any letter of authorization to process the grants and secure the issuance of the certificates on behalf of the Appellants and that at no time did the Appellants issue him with such letters for the grants and certificates they admitted that he processed on their behalf. The Respondent denied borrowing any money from the Appellants for personal use and it was his case that the sum of N3 Million was an advance payment given to him to cover expenses for the processing of the grants on behalf of the first Appellant and it was to the knowledge of the Appellants that the money was expended for that purpose.

The matter proceeded to trial and in the course of which the Respondent testified as the sole witness in proof of his case and tendered several documents and the Appellants called one witness in proof of their defence and counterclaim and they also tendered documents. At the conclusion of the trial, Counsel to the parties filed written final addresses and they adopted and relied on same as their respective submissions in the matter. The lower Court thereafter entered judgment and granted the claims of the Respondent, save for the claim for general damages, and it dismissed the counterclaim of the Appellants. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal containing two grounds of appeal and dated 14th of December, 2017 against it.

The notice of appeal was amended and further amended and the extant notice of appeal is the Further Amended Notice of Appeal containing seven grounds of appeal and filed on the 7th of October, 2020. In arguing the appeal, Counsel to the Appellants filed an amended brief of arguments dated the 5th of

October, 2020 on the 7th of October, 2020. Counsel to the Respondent, in response, filed a brief of arguments dated the 14th of October, 2020 on the same day. Counsel to the Appellants filed an amended Reply brief of arguments dated the 19th of October 2020 on the 20th of October 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their submissions in the appeal.

Counsel to the Appellants distilled six issues for determination in the appeal and these were:
i. Whether the originating process initiating this matter is valid in law.
ii. Whether the evidence before the trial Court established the claims of the Respondent to the sum of N64,026,806.47 being 5% commission of the total sum of N1,280,089,320.53.
iii. Whether the learned trial Judge rightly entered judgment on the declaratory reliefs of the Respondent.
iv. Whether the learned trial Judge properly evaluated the oral and documentary evidence of the Respondent vis-a-vis the Appellants’.
v. Whether the delay in delivery of the judgment by the trial Court occasioned a miscarriage of justice.
vi. Whether the lower Court rightly entered judgment against the second Appellant.

Counsel to the Respondent conceded that there were six issues for determination in the appeal and he agreed with the issues for determination formulated by Counsel to the Appellant, but proceeded to reframe them in different words; a mere matter of semantics. Reading through the records of appeal, particularly the pleadings of the parties, the notes of evidence, the final written addresses of Counsel and the judgment of the lower Court, as well as the further amended notice of appeal and arguments in the respective briefs of arguments, it is the view of this Court that there are four issues for determination in the appeal. These are:
i. Whether the action in the lower Court was commenced by a proper, valid and lawful originating process.
ii. Whether, on state of the pleadings and the evidence led by the parties, the lower Court was correct when it entered judgment in favour of the Respondent and granted his claims.
iii. Whether the delay in delivery of the judgment by the trial Court occasioned a miscarriage of justice.
iv. Whether the lower Court rightly entered judgment against the second Appellant.

This appeal will be resolved on these four issues for determination and all the arguments canvassed by Counsel to the parties will be considered under the four issues for determination. The four issues for determination will be resolved seriatim.

As noted above, Counsel to the Appellants filed a Reply brief of arguments and the Reply brief of arguments spanned fourteen pages. Now, it is elementary that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1. A read through the reply

brief of the Counsel to the Appellants shows that, save for the portion that responded to the arguments on the finding of the second Appellant liable on the claims of the Respondent, it was an attempt to re-argue the case of the Appellants. This Court will discountenance the Reply brief of arguments, save for the identified portion.

Issue One
Whether the action in the lower Court was commenced by a proper, valid and lawful originating process?
In arguing the issue for determination, Counsel stated that the originating summons by which the action was initiated in the lower Court was signed by the law firm of E. B. Mohammed & Co and that it is trite law that all processes filed in a Court of law must be signed by a legal practitioner known to law. Counsel referred to the provisions of Section 2(1) and 24 of the Legal Practitioners Act and the cases of SLB Consortium Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Okafor Vs Nweke (2007) 10 NWLR 513, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, amongst others. Counsel stated that in view of the invalidity of the originating process that initiated

the action in the lower Court, the entire proceedings, including the judgment, amounted to a nullity and he prayed the Court to resolve the issue in favour of the Appellant and to set aside the entire proceedings and the judgment.

In response, Counsel to the Respondent reproduced the provisions of Section 2(1) and 24 of the Legal Practitioners Act and stated that the originating summons used to commence the suit had the name of the legal practitioner, E. B. Mohammed clearly written, followed by date and his signature and then by the name of his firm and his address and that there is no name of any other legal practitioner on the process, giving the indication or interpretation that any other legal practitioner, apart from E. B. Mohammed, signed the process. Counsel stated that it was obvious and unequivocal from the face of the originating summons that it was E. B. Mohammed that issued and signed the process on behalf of E. B. Mohammed & Co and that all the cases referred to by Counsel to the Appellants were not relevant to the present situation and that the originating process was properly signed and he referred to the cases of

Williams Vs Adold/Stamm International (Nig) Ltd (2017) All FWLR (Pt 879) 739. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

This issue of improper signing of the originating process was not raised in the lower Court and it was not pronounced upon by the lower Court in the judgment. However, the Supreme Court has held severally that the issue of signing and endorsement of an originating process by a legal practitioner, where the claimant sues with one as in the instant case, is a requirement of substantive law, and not of procedural law; that it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and that it is an issue that can be raised even at the Supreme Court for the first time – see for example, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Oliyide Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 549.

Looking at the face of the originating summons by which the action was commenced, it is stated thereon that the “summons was taken out by E. B. Mohammed Esq., Legal Practitioner for the above named Plaintiff” and this was followed by the date the originating summons was prepared and then by a signature and the name of the law firm, E. B. Mohammed & Co and the address. The complaint of the Appellants is that the endorsements did not show the name of the Legal Practitioner who authored the signature appended on top of the name of the law firm. It is elementary that in interpreting a document, the document must be read as a whole,

and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt 1188) 429. Applying this principle to the endorsements on the originating summons, it cannot be contested that the signature appended above the name of the law firm belonged to E. B. Mohammed Esq., Legal Practitioner, whose name was stated thereon as the person who took out the summons. There was nothing thereon showing that it belonged to someone else.
It is correct that in his contributory judgment in the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 337-338, Rhodes-Vivour, JSC, suggested the perfect manner of endorsing Court processes when signing, thus: first, the signature of Counsel, which may be any contraption, followed by name

of Counsel clearly written, and then who counsel represents, followed by the name and address of the Law Firm. This suggestion was re-echoed by the Supreme Court in other cases such as Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). There is, however, nothing in these cases that says that this suggested perfect manner of endorsement of Court processes is engraved in stone and that once it is not complied with in the exact manner and order, the signing of the Court process is invalid; none of the cases made such pronouncement. Thus, the fact that the signature of the legal practitioner who issued a Court process came after his name, instead of before it, cannot be a ground for nullifying the Court process.
The truth of the matter is that the Courts have set certain thresholds for what constitutes proper signing of Court processes and once the manner of signing a Court process falls anywhere between the threshold and the suggested perfect manner of endorsement of signature, the signing of the Court process is proper. Now, signature

is defined as a person’s name or mark, written by that person or at the persons direction, it is also any name, mark or writing used with the intention of authenticating a document – Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment thus:
“… In signing the notice of Appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co. would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient signature

if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…”(underlining for emphasis)
This statement was quoted with approval by the Supreme Court in Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). Again, in Dankwambo Vs Abubakar (2016) 2 NWLR (Pt 1495) 157, Kekere-Ekun, JSC, said thus:
“I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any Court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act

in the strict sense urged by learned senior counsel for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.”
In other words, the writing of the name of the legal practitioner, either in full or with his initials, on the originating process, apart from and in addition to the name of his law firm, meets the requirement of signing of a Court process by the legal practitioner under the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. In Michmerah International Ltd Vs Nigeria International Bank Ltd supra, this Court, relying on the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra, opined thus:

In Tell Communications Ltd Vs Ngilari (2019) LPELR 46934(CA), this Court reiterated thus:
“In SLB Consortium Ltd Vs NNPC supra, the Supreme Court further noted the signature of the legal practitioner on a Court process need not be anything special and that the mere writing of the name of the legal practitioner can constitute a signature.
In the instant case, the writ of summons, as contained in the records of appeal, carries the name of the Counsel to the Appellant clearly written; it stated who the Counsel represents; and the name and address of the legal firm of Counsel. It also carries the signature of the Judge who issued the writ. There was no doubt as to the identity of the legal practitioner who took out the writ of summons and it was not in contest that the identified legal practitioner is listed on the Roll of Barristers at the Supreme Court as someone entitled to practice law in Nigeria. The writ of summons met the essential requirements and satisfied the purpose of 2 (1) and 24 of the Legal Practitioners Act.”
Similar statements were made by this Court in the cases of Allu Vs Gyunka (2015) LPELR 40478(CA), Oshoko Vs Akinrinade (2016) LPELR

41948(CA), Pacers Multi-Dynamics Ltd Vs Ecobank Plc (2018) LPELR 45008(CA). The originating summons filed by the Respondent in the lower Court, apart from the mark appended on top of the name of the law firm, carried the name of the Legal Practitioner typed thereon along with the name of the law firm and it thus came within the threshold laid down in the above cases, though it fell short of the suggested perfect manner of signing Court processes.
Thus, the originating summons was proper and valid and it adequately ignited the jurisdiction of the lower Court to hear and entertain the claims of the Respondent. The complaint of the Appellant under the first issue for determination was unfounded and the issue for determination is resolved in favour of the Respondent.

Issue Two
Whether, on state of the pleadings and the evidence led by the parties, the lower Court was correct when it entered judgment in favour of the Respondent and granted its claims.
In arguing the issue for determination, Counsel to the Appellants noted that in civil actions, the burden of proof is on a claimant to prove his case on a balance of probabilities and he referred

to the provisions of Sections 133(1) and 134 of the Evidence Act. Counsel traversed through the case of the Respondent on the pleadings and stated that the assertion of the Respondent was that he applied for, processed and procured the Export Expansion Grants (EEG) and NDCC certificates for the Appellants for January, 2003 in the sum of N51,657,410.63; April, 2003 in the sum of N56,221,960.12; June 2003 in the sum of N45,054,856.72; September, 2003 in the sum of N322,800,420.53; December, 2003 in the sum of N560,372,234.62; and May 2004 in the sum of N244,432,249.07; all totaling N1,280,536,129.52 and for which he is entitled to 5% commission in the sum of N64,026,806.47. Counsel stated that in proof of the assertions, the Respondent tendered five applications for Export Expansion Grants dated between 22nd November, 2001 and 7th of October, 2002, which pre-dated the periods of the six Export Expansion Grants (EEG) and NDCC certificates claimed for, and that he merely dumped the five applications on the lower Court and failed to link or connect them to the six Export Expansion Grants (EEG) and NDCC certificates. Counsel stated that beyond tendering of documents,

a party has a duty to relate the documents to the relevant parts of his case and he referred to the case of Amachree Vs Goodhead (2009) All FWLR (Pt 461) 911.

Counsel stated that, additionally, there was evidence before the lower Court that an application for Export Expansion Grants (EEG) is usually made subsequent to and after the export for the relevant period and repatriation has been made and it cannot be made before the exports have carried out. Counsel stated that a read through the schedule/summary of the exports forming the basis of the six Export Expansion Grants (EEG) and NDCC certificates claimed on, and which was tendered in evidence, showed the last date of repatriation of the first four of the six Export Expansion Grants (EEG) was between the 24th of April, 2003 and 28th of October, 2003. Counsel stated that the Respondent failed to lead evidence to show any relationship between the five applications tendered in proof of his claims and which he said he made on behalf of the Appellants and the six Export Expansion Grants (EEG) and NDCC certificates claimed on and that the five applications contradicted the claims of the Respondent that he applied for, processed and procured the six Export Expansion Grants (EEG) and NDCC certificates.

Counsel stated that the main claim of the Respondent before the lower Court was declaratory in nature and that the onus was thus on the Respondent to succeed on the strength of his case, and not on the weakness of the case of the Appellants and he referred to the cases of Mbodan Vs Dabai (2019) LPELR 46739(CA) and Nyesom Vs Peterside (2016) All FWLR (Pt 842) 1573. Counsel stated that based on the above expose of the case and evidence led by the Respondent, it was obvious that the Respondent did not lead credible evidence in proof of his declaratory claim and the other ancillary claims and that it was thus shocking that the lower Court found in favour of his claims on the ground that the Appellants did not lead credible evidence in proof of their defence. Counsel stated that the Respondent having failed to lead credible evidence in proof of his case, the onus did not shift to the Appellants and the lower Court had no business considering the case made out by the Appellants and he referred to the cases of Chemiron Intl Ltd Vs Egbujuouma (2007) All FWLR (Pt

395) 444 and Agu Vs Nnadi (2003) FWLR (Pt 139) 1537. Counsel stated that it is the duty of a claimant to prove his claim and not the duty of a defendant to disprove the case of a claimant and he referred to the case of Agbana Vs Owa (2004) All FWLR (Pt 214) 1.

Counsel referred to the cases of Chukwuma Vs Anyakora (2006) All FWLR (Pt 302) 121 and Tangale Traditional Council Vs Fawu (2002) All FWLR (Pt 117) 1137 in asserting that it is the duty of a trial Court to evaluate all evidence before it to come to a meaningful finding and stated that in the present case, the lower Court merely bunched together the documents tendered by the Respondent in its deliberations on them and did not evaluate each of them in the course of the judgment. Counsel stated that had the lower Court evaluated each of the documents, it would have come to the irresistible conclusion that they did not help the case of the Respondent and that the Respondent failed to lead credible evidence to prove that he applied for, processed and procured the six Export Expansion Grants (EEG) and NDCC certificates claimed on. Counsel stated that the lower Court exhibited a double standard in the

evaluation of the evidence led by the parties and the lower Court rejected the document relied upon by the Appellants to prove payment of commission to the Respondent on the ground that the Appellants did not relate the entries in the document to their case, but that it failed to treat the documents dumped on the Court by the Respondent similarly. Counsel stated that the judgment entered by the lower Court in favour of the Respondent was clearly against the weight of the evidence led at trial and he referred to the cases of Onisaodu Vs Elewuju (2006) FWLR (Pt 328) 604, Mogaji Vs Odofin (1978) 4 SC 91 and Lagga Vs Sarhuna (2009) FWLR (Pt 455) 1617.

Counsel concluded his arguments by urging the Court to resolve the second issue for determination in favour of the Appellants.

In his response, Counsel to the Respondent referred to the case of New Breed Org. Ltd Vs Orhomosele (2006) All FWLR (Pt 307) 1081 and the provision of Section 133(1) of the Evidence Act in conceding that the onus of proof in the matter rested on the Respondent, as claimant, to prove his case by a preponderance of evidence and balance of probabilities. Counsel also referred to the

cases of F.A.T.B. Ltd Vs Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt 851) 35 in noting however, that the onus of proof was not static in the circumstances of the present case and that it shifted to the Appellants, as defendants, in certain circumstances that arose in the course of proceedings which required the Appellants to provide evidence in proof or rebuttal of issues. Counsel traversed through the case of the Respondent on the pleadings and evidence led and stated that the Appellants admitted that the Respondent was their sole agent for the processing of Export Expansion Grants (EEG) and NDCC certificates from 1999 until September 2003 and that this meant that the only area of disagreement was as regards the Export Expansion Grants (EEG) and NDCC certificates for December, 2003 and May 2004.

Counsel stated that with the admission by the Appellants that the Respondent was their agent for the processing of the Export Expansion Grants (EEG) and NDCC certificates for January 2003, April 2003, June 2003 and September 2003, those facts were deemed established and required no further proof and he referred to the case of Olakunle Vs State (2018) All FWLR (Pt

947) 1270. Counsel stated that the Respondent led sufficient evidence, both oral and documentary, before the lower Court to prove that he processed the Export Expansion Grants (EEG) and NDCC certificates for January 2003, April 2003, June 2003, September 2003, December, 2003 and May 2004. Counsel stated that the documents tendered included the applications and the evidence of the processing that the Respondent did for the Appellants for 2003 and 2004 and the activities of the Appellants’ exports including reparation in February, March and April, 2004 that led to the EEG Certificate for May 2004.

Counsel stated that the steps taken by the Respondent in processing the Export Expansion Grants (EEG) and NDCC certificates were documented and forwarded to the Appellants for the year 2004 and they were never denied nor objected to and that the Appellant took full benefits of the steps but reneged in paying the agreed 5% commission. Counsel proceeded to relate the documents to the different periods of claim and stated that it was incorrect that the Respondent merely dumped the documents in Court without relating to the relevant parts of the claim and he

traversed through the testimony of the Respondent to show the evidence led to connect the documents to the case presented. Counsel stated that with the showing, the onus shifted to the Appellants to show that it was indeed not the Respondent that processed the Export Expansion Grants (EEG) and NDCC certificates, but someone else and that the Appellants woefully failed to do so. Counsel interrogated the oral and documentary evidence led by the Appellants and stated that in view of the unchallenged assertion of the Respondent in his reply pleadings that it took a long time for an application to mature into an Export Expansion Grant and NDCC certificate, it was not possible that it was the application filed by the Finance Manager of the Appellants in April 2004 that matured into the grant and certificate of May 2004.

Counsel stated that the Appellants failed to produce and tender in the lower Court all the applications filed by the Respondent for the first part of 2004 and which were in their custody despite being served with a notice to produce the documents and that Appellants did not deny that the documents were in their possession and he urged the Court

to invoke Section 167(d) of the Evidence Act on withholding evidence against the Appellants. Counsel stated that the documents tendered by the Appellants dated October, 2003, November 2003, December 2003 and April 2004 were mere authority to collect already processed NDCC certificates issued to their Finance Manager and they did not derogate from the claim of the Respondent as his agreed task was to process the Export Expansion Grants (EEG) and finalize the issuance of NDCC certificates and which the Respondent carried out. Counsel stated that the Respondent further led evidence that he was not paid his due commission for the tasks carried out and the Appellants failed to produce any evidence of payment of the commission.

Counsel stated that the Respondent discharged the onus on him by a preponderance of evidence and that the findings of the lower Court made in favour of the case of the Respondent were proper. Counsel stated that the lower Court carried out a painstaking evaluation of the totality of the evidence, both oral and documentary, led by the parties vis-a-vis their respective cases on the pleadings before making its findings. Counsel

traversed through some of the deliberations of the lower Court in the judgment and stated that the lower Court dutifully discharged the duties placed upon it by law and he referred to the case of Chukwura Vs Anyakora (2006) All FWLR (Pt 302) 121. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.

Now, it is settled that in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt 126) 253, Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160, Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. And whenever the claimant is able to prove his

claim by adducing sufficient and satisfactory evidence in support thereof, the burden will shift to the defendant to adduce evidence in rebuttal on preponderance of evidence – Imana Vs Robinson (1979) 3-4 SC 1, Ezeudu Vs Obiagwu (1986) 2 NWLR (Pt 21) 208, Nnorodim Vs Ezeani (1995) 2 NWLR (Pt 378) 448, Iheanacho Vs Chigere (2004) 17 NWLR (Pt 901) 130, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Bamikole Vs Oladele (2011) 1 NWLR (Pt 1229) 483. If the defendant cannot lead any credible evidence to tilt the scale to his side, judgment will be for the claimant – Dabo Vs Abdullahi (2005) 7 NWLR (Pt 923) 181.

The records of appeal show that the case in the lower Court was conducted on pleadings filed by the parties. It is elementary that in an action predicated on pleadings, the quality of evidence that will qualify as “sufficient and satisfactory evidence” must necessarily depend on the state of the pleadings and the issues joined by the parties thereon. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of

the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.

Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to

prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538. This point was succinctly explained by Oputa, JSC in Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397 thus:
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has

been admitted by the opposite party. Therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings.”

Certain facts were not in dispute in this matter. It was not in dispute that in the year 1999, the Appellants engaged the Respondent to assist in processing their Export Expansion Grant (EEG) documents and in finalizing the issuance of the NDDC Certificates and for which the Respondent was entitled to be paid 5% of the total grants processed through him and/or through his efforts as commission. It was not in dispute that the Respondent was the sole agent of the Appellants for the processing of the Export Expansion Grant (EEG) documents and in finalizing the issuance of the NDDC Certificates from 1999 to September 2003. It was not in dispute that the Appellants received and took benefit of Export Expansion Grants and NDDC Certificates for January 2003 in the sum of N51,657,410.63; April, 2003 in the sum of N56,221,960.12; June 2003 in the sum of N45,054,856.72; September, 2003 in the sum of N322,800,420.53; December, 2003 in the sum of N560,372,234.62; and May 2004 in the sum N244,432,249.07, all totaling N1,280,536,129.52.

It was the case of the Respondent that he processed these grants and certificates and that the Appellants failed and/or neglected to pay him the agreed 5% commission of the total grants. It was the case of the Appellants, in response, that they terminated the agency of the Respondent in September, 2003 and appointed someone else, Mrs. Aisha Obemeghie, who they employed as Financial Manager, to process the Export Expansion Grant (EEG) and finalize the issuance of the NDDC Certificates on their behalf. It was their case that the Respondent only processed the Export Grants for January, 2003 in the sum of N51,657,410.63 and April, 2003 in the sum of N56,221,960.12 and he was duly paid the agreed commission thereon and that it was Mrs. Aisha Obemeghie that processed the Export Grants for June 2003, September, 2003, December, 2003, and May 2004 and that the Respondent was not entitled to the 5% commission on those grants. These were the areas of disagreement between the parties.

Thus, from the pleadings of the parties, the areas of dispute submitted to the lower Court for adjudication were narrow and were only two questions;

namely: (i) Did the Appellant pay the Respondent the 5% commission for the Exports Grants for January 2003 in the sum of N51,657,410.63 and April, 2003 in the sum of N56,221,960.12, which they admitted that he processed; and (ii) who between the Respondent and Mrs. Aisha Obemeghie processed the Export Grants for June 2003 in the sum of N45,054,856.72, September, 2003 in the sum of N322,800,420.53, December, 2003 in the sum of N560,372,234.62, and May 2004 in the sum N244,432,249.07. The Respondent and the Appellants led evidence in support of their respective positions on the areas of dispute.

In its deliberations in the judgment, the lower Court reviewed the oral and documentary evidence led by the parties and noted the areas of agreement between them. It proceeded to consider the respective cases made out by the parties on the areas of dispute thus:
“The plaintiff’s claim is anchored on the grants for the months of January, April, June, September, December 2003 and May 2004. The defendants cannot contest the fact that the plaintiff acted for them in January, April, June, September, and December 2003. This is because Exhibit 18 which

introduced DW1 as the defendants’ new anchor person is dated 22/09/2003, almost the end of September, 2003. She could not possibly have acted for the defendants in processing EEG for them for the months claimed. Exhibit 19 dated 03/10/2003 eleven days after Exhibit 18 introducing DW1 is reminding the NEPC (Nigerian Export Promotion Council) that she is the only authorized person to be submitting applications for EEG on behalf of the defendants. This is a strong indication that this reminder a few days later shows that the plaintiff may have continued to act on their behalf especially because as he stated in re-examination that his appointment was not formally terminated. It is settled therefore that the plaintiff worked for the defendants. And this work entitled him to a commission.”

The lower Court continued its deliberation thus:
“The outstanding commission for which he claims against the defendants are for January, April, June, September, December 2003 and May 2004. The defendants have tried to show either that the plaintiff has collected payments or that he did not process the EEG for which he is making the claim. The

contention of the defendants is that the plaintiff has not proved that he processed the six EEG grants for which he is making the claim as the burden is on him to do so. That the plaintiff has not unbundled his documents which he tendered and the Court cannot do that for him. It is important to note that the defendants in their evidence in chief of their sole witness DW1 admitted that the plaintiff entered into an agreement with the defendants in 1999 for the processing of their EEG and finalizing of the issuance of NDDC Certificate until September, 2003 when the agreement was terminated … The defendants having admitted that the plaintiff was their agent for the purpose of processing their EEG and finalizing the issuance of the NDDC certificates, the plaintiff no longer has any burden to prove that he did the said processing for the period in dispute save for September, December 2003 and May 2004. In civil matters the onus is not static, it shifts. And the burden is on the party who will lose if no further evidence was adduced. Applying this trite principle, it is the defendants who will lose if no further evidence was adduced. The evidence of the

defendants is that the plaintiff’s appointment was terminated in September 2003. They did not tender any letter evidencing this termination. Viewed against this backdrop of the evidence of the plaintiff that there was no formal termination. That he only learnt or realized it when the defendants stopped giving him documents to process. The plaintiff’s story finds credence in Exhibit 23. It shows the defendants giving the plaintiff N3,000,000 on the 12/09/2003… Besides by their own documents it was only in September that the defendants wrote to NEPC introducing DW1 as their new agent for processing EEG. Exhibits 20 and 21 show that DW1 was already collecting two NDDC certificates for N322,800,000 and N45,054,000 in early November. These could not have been processed by the defendants’ DW1 late September and … NDDC Certificates in less than six weeks. Without any further evidence of how these certificates were processed by the defendants’ DW1, I am left with no option but to make the necessary inference that the payments certificates collected by DW1 are the products of the plaintiff’s work in processing the EEG.”

It was the further deliberation of the lower Court that:
“In respect of the plaintiff’s claim for commission for December 2003 and May 2004, the defendants tried to disprove that by tendering Exhibit 16. This is supposed to be an application for EEG for part of year 2004. The breakdowns of the dates of export does not contain May for which the plaintiff argued the defendants’ new finance manager only commenced the processing of the defendants’ EEG in April, 2004 which could not have yielded any grants for the defendants in May, 2004… The defendants did not contest this assertion in anyway. The defendants having admitted in paragraph 11 of their evidence in chief that they engaged the plaintiff who was entitled to a commission but that all the commission was paid had the burden to prove that they paid the commission. When they paid, how they paid? They have not discharged this onus by tendering exhibit 23 which is a debtor’s ledger. Besides, the defendants only dumped the exhibit on the Court, they never explained the entries in the document to show how they have paid over all the commission of the

plaintiff. The 5% commission is shown on Exhibit 23 in three places. The plaintiff’s claim is for five commissions unpaid. The three entries on Exhibit 23 have not been tied to any of the plaintiff’s five claims. As the defendants argued in their brief it is not the duty of the Court to unbundle documents for litigants. Having failed to link the three entries on Exhibit 23 to the claims of the plaintiff for payment of 5% commission the defendants have failed to discharge the onus of proof. This failure is fatal to their defence.”

The lower Court thereafter deliberated on and dismissed the counterclaim of the Appellants. The Appellants have not contested the dismissal of their counterclaim in this appeal and it is thus unnecessary to interrogate the findings of the lower Court thereon. The lower Court concluded her deliberations thus:
“From my findings in this judgment, I hold that the plaintiff has proved his claim on balance of evidence. He succeeds and I hereby enter judgment in his favour and against the defendants …”
The lower Court granted the reliefs sought by the Respondent on the statement of claim.

The complaint of the Appellants under this issue for determination is against the above reproduced evaluation of evidence carried out by the lower Court. It is settled law that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC),

Fulani M. Vs State (2018) LPELR 45195(SC), Shingi Vs Bandado (2018) LPELR 46549(CA), State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC).
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable –Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. Therefore, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the

witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

In evaluating the evidence led by the parties on the areas of dispute, the lower Court was obligated to follow the time honoured procedure designed to mete out justice to both parties before the Court, a procedure that is crucial in its observance. The lower Court was enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the Respondent while the other side will harbor the evidence of the Appellant. The lower Court must then weigh them

together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the lower Court in this regard, it had to consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the lower Court must then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. The lower Court must carefully examine the evidence and clearly understand the issues it has to resolve in the case and then proceed to resolve them. Its duty was to reach a decision only on the basis of what was in issue and what had been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence was crucial to arriving at a just decision –Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (Pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.

In resolving the first dispute, on whether the Respondent was paid the 5% commission for the Exports Expansion Grants for January 2003 and April, 2003, which the Appellants admitted that he processed, it is obvious from the above reproduced excerpt of the judgment that the lower Court considered the evidence led by the Respondent on the non-payment of the commission vis-a-vis the evidence of the Appellants on the payment of the commission. The lower Court found that the Appellants did not lead credible evidence on payment of the commission to outweigh the evidence of the Respondent because they failed to connect the entries in the ledger they tendered in support thereof to the relevant part of their case. Apart from making a passing comment accusing the lower Court of using double standards, Counsel to the Appellants did not challenge or fault this finding in his entire arguments in this appeal. The law is that a finding of fact not challenged on appeal is deemed admitted and undisputed; it is deemed conclusive and cannot be tampered with by the appellate Court – Commerce Assurance Ltd Vs Alli (1992) 3 NWLR (Pt 232) 710, Olukoga Vs Fatunde (1996) 7 NWLR (Pt 462) 516, First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR (1395) 439. The finding of the lower Court on this area of dispute cannot be faulted.

Again, it is obvious from the above excerpt of the judgment that in resolving the second area of dispute on who, between the Respondent and Mrs. Aisha Obemeghie processed the Export Grants for June 2003, September, 2003, December, 2003 and May 2004, the lower Court placed the evidence led by the Respondent side by side with the evidence led by the Appellants and found the evidence of the Respondent more plausible. Counsel to the Appellants contended against this finding of the lower Court on the grounds that (i) the documents tendered by the Respondent did not support his case that he applied, processed and procured the Export Expansion Grants (EEG) and the NDDC certificates to which his claims were related; (ii) the Respondent merely dumped his documents on the lower Court and failed to link them to his case; (iii) the lower Court wrongly placed the burden of proof on the Appellants; and (iv) the lower Court failed to properly interrogate the documents tendered by the Respondent in making its findings.

Counsel to the Appellants was very vehement in his criticism of the documentary evidence tendered by the Respondent and he based his disparagement of the finding made by the lower Court on the alleged impotence of the documentary evidence of the Respondent. Counsel, however, seemed to have overlooked one minor, but very important fact; the Respondent led both oral and documentary evidence in proof of his case. The oral evidence led by the Respondent was in the exact terms of his case on the pleadings. A read through the record of the proceedings at the lower Court shows that the Respondent led clear and unequivocal oral evidence that he was the person that processed the Export Grants for June 2003, September, 2003, December, 2003, and May 2004 and this evidence was not dented, confronted, challenged, discredited or disparaged under cross- examination and neither was it incredible or unbelievable. It is the law that such evidence can be believed and relied upon by a trial Court in making findings – Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigeria Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302.

It is good law that unchallenged or un-contradicted oral evidence is admissible to establish the existence of a fact on which it is based. Where oral evidence is cogent and relevant, there is no need for documentary evidence as the oral evidence has properly covered the entire evidential scene – Ajao Vs Ashiru (1973) 11 SC 23, Odulaja Vs Haddad (1973) 11 SC 357, Okupe Vs Ifemembi (1974) 3 SC 97, Alalade Vs ICAN (1975) 4 SC 59, Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423. Counsel to the Appellants did not contend against the credibility of the oral evidence led by the Respondent that he processed the said Export Expansion Grants in question. Thus, the oral evidence led by the Respondent constituted reliable and cogent evidence that the lower Court could rely on in making its findings, devoid of the documentary evidence heavily criticized by Counsel to the Appellants. The duty of a trial Court in evaluation of evidence is to evaluate relevant evidence, and not irrelevant evidence. The contention of Counsel to the Appellants was that the documents tendered by the Respondent were irrelevant to his case, yet he

condemned the lower Court for not evaluating them. It was not the case of the Appellants that the oral evidence led by the Respondent was not sufficient to sustain his claims. The finding of the lower Court that the Respondent led credible evidence in proof of his case cannot thus be faulted.

Now, as stated above, whenever a trial Court finds that a claimant has led sufficient and satisfactory evidence in support of his case, the burden will shift to the defendant to adduce evidence in rebuttal on preponderance of evidence. The lower Court was thus very correct when it shifted the burden of proof to the Appellants, in the circumstances. The above reproduced excerpts of the deliberations in the judgment shows that the lower Court engaged and interrogated the oral and documentary evidence led by the Appellants in proof of their assertion that it was Mrs. Aisha Obemeghie that applied for and processed the Export Grants for June 2003, September, 2003, December, 2003, and May 2004. The lower Court found that the documentary evidence of the Appellants did not support the assertion because the letters that first introduced Mrs. Obemeghie as the new anchor person

of the Appellants for processing of grants were dated late September/early October 2003 and it surmised that she could thus not have processed the grants for June 2003, and September, 2003. The lower Court also found that the first application made by Mrs. Obemeghie, from the documents tendered, was dated in March, 2004. The lower Court found that this could not have been the application used to process the Export Grants for June 2003, September, 2003, December, 2003, and even for May 2004.

The excerpts of the deliberations further show that the lower Court weighed the oral evidence of the Respondent against the oral evidence of Mrs. Aisha Obemeghie, the Appellants’ witness, and it drew inferences from the totality of the documents tendered and from the surrounding circumstances of the case, before coming to the conclusion that the evidence of the Respondent was more credible and plausible than that of the Appellants. It is trite law that a trial Court is entitled to draw inferences from facts and evidence put before it – Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1,

MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC). Where the inferences drawn by a trial Court are not far-fetched, are not unreasonable and are connected to the evidence led by the parties, an appellate Court has no business interfering therewith –Elike Vs Nwakwoala (1984) 1 All NLR 505, Nnadozie Vs Mbagwu (2008) 3 NWLR (Pt 1074) 363 at 387. In Eromosele Vs Federal Republic of Nigeria (2018) LPELR 43851(SC), the Supreme Court made the point thus:
“In the course of evaluation of evidence, a Court of law is entitled to make deductions from the evidence before the Court which deduction may result in conclusions based on proper appraisal of that evidence. Where deductions are based on the evidence before the trial Court by the lower Court this Court has no reasons to interfere with such deductions.”

Now, it must be understood that evaluation of evidence is not an exact science. The approach and methodology may differ from case to case and from trial Judge to trial Judge. There is no only one way of evaluating evidence; no “one size fits all” approach to it. Whatever the approach or methodology employed by a

trial Judge, what is important at the end of the process is that the evidence led by the parties are considered in the light of the pleadings and that the credible evidence led by the parties are weighed on an imaginary scale to determine whose case preponderates. Once this is done and the findings made by a trial Court find anchor in the pleadings of the parties and in the evidence led on record, it will be difficult for an appellate to interfere with them.
The findings made by the lower Court in the present case were not unreasonable in the light of the pleadings and the evidence led by the parties and they were supported by evidence led on record. The findings were not perverse and this Court thus has no business interfering with them. This Court finds no merit in the agitations of the Appellants against the evaluation of evidence carried out by the lower Court. The second issue for determination is resolved in favour of the Respondent.

Issue Three
Whether the delay in delivery of the judgment by the trial Court occasioned a miscarriage of justice?
In arguing the issue for determination, Counsel to the Appellants referred to the

provisions of Section 294(1) of the 1999 Constitution which dictates that judgments should be delivered within ninety days of final addresses and stated that in the present case, the parties adopted their final written addresses on the 11th of January, 2016 and the lower Court delivered judgment on the 10th of November, 2017, over one year and ten months thereafter. Counsel noted that the lower Court offered an explanation for the delay in the judgment and stated that the reasons given were flimsy and untenable and that the attempt made by the lower Court to assure that the lapse of time did not affect its perception of the respective cases of the parties was unacceptable because it focused on the frontloaded evidence of the parties, and not on the cross-examination which is what creates the impression that a Court is bound to consider in making its findings.

Counsel conceded that an appellant complaining of delay in delivery of judgment must show that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to the inordinate delay and he referred to the cases of

Atungwu Vs Ochekwu (2013) LPELR 20935(SC) and Walter Vs Skyll (Nig) Ltd (2000) FWLR (Pt 13) 2244. Counsel stated that, by reason of the delay in the delivery of the judgment, the lower Court so poorly perceived the facts of the case of the parties that it could not distinguish the requisite burden of proof on the parties and it unjustifiably shifted the burden of proof from the Respondent to the Appellants contrary to law and thereby occasioned a miscarriage of justice and which makes the judgment liable to be set aside. Counsel urged the Court to resolve the third issue for determination in favour of the Appellants.

In his response, Counsel to the Respondent referred to the provisions of Sections 294(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 and the case of Nagebu Company (Nig) Ltd Vs Unity Bank Plc (2013) All FWLR (Pt 698) 871 in reiterating the concession made by Counsel to the Appellants that the Appellants were obligated to show the miscarriage of justice they suffered by reason of the delay in the delivery of the judgment. Counsel stated that it was clear from the evaluation of evidence carried out, as contained in the

records of appeal, that the delay in the delivery of judgment did not cause the lower Court to lose its impression of what it saw and heard from the witnesses and the parties in the cause of the trial. Counsel traversed through the portions of the evaluation of evidence carried out and stated that the Appellants did not show any omission, addition or inappropriate facts on the records of appeal done by the lower Court traceable to the delay in the delivery of judgment.

Counsel stated that the Appellants failed to show any injustice, injury or miscarriage of justice they suffered on the face of the records of appeal due to the failure of the lower Court to deliver the judgment within the statutory period and he referred to the cases of Igwe Vs Kalu (2002) FWLR (Pt 97) 704, Beer and Beverages Ind. Ltd Vs Mutunci Company (Nig) Ltd (2013) All FWLR (Pt 670) 1276. Counsel stated that the only complaint of the Appellants was that the lower Court misplaced the burden of proof by reason of lateness in the delivery of judgment, but that the Appellants failed to show the miscarriage of justice they suffered thereby. Counsel stated that, looking through the

judgment, the lower Court rightly shifted the burden of proof of the assertions made by the Appellants in support of their case to the Appellants and that it properly evaluated the evidence led by the parties in making its findings. Counsel urged the Court to resolve the third issue for determination in favour of the Respondent.

It is not in doubt in this matter that the lower Court delivered its judgment very many days outside the ninety days stipulated by Section 294 (1) of the Constitution. It is trite that by a combined reading of the provisions of Sections 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, a party cannot seek to nullify a judgment of Court simply because it was delivered outside the ninety day period allowed by the Constitution. The party must proceed further to show the miscarriage of justice he suffered by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not on the length of time simpliciter but on the effect it produced in the writing of the judgment –

Ogundele Vs Fasu (1999) 12 NWLR (Pt 632) 662, Atungwu Vs Ochekwu (2004) 17 NWLR (Pt 901) 18, Dahiru Vs Kamale (2005) 9 NWLR (Pt 929) 8, Savannah Bank of Nigeria Ltd Vs Starite Industries Overseas Corporation (2009) 8 NWLR (Pt 1144) 491, Nagebu & Company (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42. In Dibiamaka Vs Osakwe (1989) 3 WLR (Pt 107) 101 at page 114, Oputa, JSC, made the point thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
On what amounts to miscarriage of justice in such circumstances, this Court in the case of Baban-Lungu & Anor Vs Zarewa & 2ors (2013) LPELR 20726(CA) stated thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…it is essential to understand that the concept of miscarriage of justice is not a speculative concept and it is not considered in the abstract but in concrete terms based on the peculiar facts of each case. Thus, a party alleging miscarriage of justice by reason of delay in the delivery of judgment by a Court will not succeed by merely parroting the concept, he must show in clear and real terms the injustice or injury he suffered on the face of the records and which is traceable to the failure of the Court to deliver judgment within the statutory period.”
The question that arises on this issue for determination, therefore, is whether the Appellants showed that the delay in the delivery of the judgment “apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that she has lost the impression made on her by the witnesses”? In other words, whether the Appellants showed the injustice or injury they suffered on the face of the records and which is traceable to the failure of the Court to deliver judgment within the statutory period?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel to the Appellants submitted that by reason of the delay in the delivery of the judgment, the lower Court so poorly perceived the facts of the case of the parties that it could not distinguish the requisite burden of proof on the parties and it unjustifiably shifted the burden of proof from the Respondent to the Appellants contrary to law and thereby occasioned a miscarriage of justice. Counsel however failed to demonstrate clear instances of the poor perception of the facts by the lower Court or how the lower Court wrongly shifted the burden of proof and he did not relate the situations to the delay in the delivery of judgment and show how the situations prejudiced them and occasioned a miscarriage of justice. The law is that it is not enough to mouth the allegation without demonstrating it and linking it to the delay in the delivery of the judgment. In Abayomi Vs Saap Tech (Nig) Ltd (2020) 1 NWLR (Pt 1706) 453 at 488-489, this Court explained the point thus:
‘… Put differently, it is not sufficient or enough for the appellant to merely say that the trial Judge lost perception and recollection of the demeanour of witnesses without

practical demonstration of the effect it had on the findings and inferences drawn from the evidence of the witnesses. Further, the fact that the trial Judge in the assessment or evaluation of the evidence preferred a particular piece of evidence to or than another in ascription of probative value does not mean or constitute loss of perception or recollection of evidence or impression of witnesses because improper or non-evaluation of material evidence by a trial Court may arise or occur even when a decision or judgment was delivered within ninety (90) days after the conclusion of evidence and final addresses … and can properly be questioned on appeal by a party who was dissatisfied therewith. In this case, the appellant simply argued that because the trial Judge delivered his judgment after the expiration of ninety (90) days …, the trial Judge must have lost her recollection of the demeanour of witnesses due to the lapse of time. But what is required of the appellant on her complaint of the non-compliance with the provisions of the section is a clear demonstration of the alleged loss of recollection, impressions, and perception of the demeanour

of the witnesses who testified in the case in the evaluation or assessment of the relevant evidence given and ascription of the due probative value to it such that the appellant was prejudiced …’
Additionally, this Court had found that the lower Court did not wrongly or unjustifiably shift the onus of proof on the Appellant. The Appellants failed to show in clear and real terms the injustice or injury they suffered on the face of the records and which is traceable to the failure of the Court to deliver judgment within the statutory period. The third issue for determination is resolved against the Appellants.

Issue Four
Whether the lower Court rightly entered judgment against the second Appellant?
In arguing the issue for determination, Counsel to the Appellants referred to the case of Bolou Vs Federal College of Education, Obudu (2019) LPELR 47465(CA) in asserting that Court has a duty to make a pronouncement on all the issues joined by the parties. Counsel stated that the Appellants contended before the lower Court that the second Appellant ought not to have been made a party to the action as he was just the managing director

of the first Appellant and that the documents tendered did not indicate that he was a guarantor or participant in the transactions leading to up the action. Counsel stated that the Respondent countered that the second Appellant personally guaranteed the transaction and that this was what influenced him to enter into the transaction with the first Appellant and that as such the second Appellant was a necessary party to the action. Counsel stated that the lower Court failed and/or neglected to make a pronouncement on this vital issue, but nevertheless proceeded to erroneously enter judgment against the second Appellant.

Counsel stated that as the managing director, the second Appellant was a separate entity from the first Appellant and cannot, without more, be held liable for the act of the first Appellant and he referred to the cases of NDIC Vs Vibelko Nig. Ltd (2006) All FWLR (Pt 336) 386, Atlantic Dawn Ltd Vs G-Net Communication (2019) LPELR 47772(CA) and Bauchi State Government Vs Arewa Ceramics Ltd (2019) LPELR 47490(CA). Counsel stated that the assertion of guarantee alleged by the Respondent was not supported by any written document and that oral

guarantee is not enforceable without it having been reduced into writing and he referred to the cases of Chami Vs UBA Plc (2013) 4 BFLR 20 and FCMB Ltd Vs SAIC Ltd (2007) All FWLR (Pt 363) 133. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

In response, Counsel to the Respondent stated that this issue for determination was distilled from Ground Six on the Further Amended Notice of Appeal filed by the Appellants and that the complaint in that ground of appeal was against the interlocutory decision of the lower Court delivered on the 31st of July, 2008. Counsel stated that the second Appellant was originally not a party to the action but was joined as a party on a contested application filed by the Respondent and the Ruling on which was delivered on the 31st of July, 2008 and that a further application filed by the Appellants to set aside the Ruling was dismissed by the lower Court. Counsel stated that the Appellants did not appeal against the Ruling when it was delivered in July, 2008 and that it was in the Further Amended Notice of Appeal filed on the 5th of October, 2020, over twelve years after, that a

complaint was made against the Ruling. Counsel stated that the Appellants did not seek leave of Court or extension of time to appeal against the Ruling before including same on the Further Amended Notice of Appeal and that as such the ground of appeal was incompetent and he referred to the case of Udoette Vs Heil (2003) FWLR (Pt 143) 362.

Counsel stated that there was no obligation on the lower Court, in the circumstances, to pronounce on the issue of the whether or not the second Appellant was a proper party to the action as to do so would have amounted to the lower Court sitting on appeal on its interlocutory decision, and the lower Court is not competent to do so and he referred to the case of Alor Vs Ngene (2007) All FWLR (Pt 362) 1836. Counsel stated that, going further, the Respondent did make out a credible case against the second Appellant, both on his pleadings and in his evidence, that it was the second Appellant that personally convinced him to enter into the transaction with the first Appellant and invariably acted as a guarantor of the first Appellant in the transaction. Counsel stated that based on the fact that the second Appellant was

the alter ego and the Chief Executive Officer of the first Appellant and he executed the agreement on behalf of the first Appellant and made a personal representation to the Respondent thereon, where the first Appellant improperly failed to honor its obligations under the agreement, it was proper for the lower Court to lift the veil of incorporation and make the second Appellant a necessary party to the action and he referred to the case of SS Ltd Vs Oladiran (2016) All FWLR (Pt 836) 520. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.

Counsel to the Appellants and Counsel to the Respondent appear confused in their respective arguments over two different, but related, legal concepts; these are the concepts of proper party to an action and liability to a claim. It is settled law that a proper party to an action is that person who, though not interested in the plaintiff claim, is made a party for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind – Green Vs Green

(1987) 3 NWLR (Pt 61) 480 at 493, Chief of Army Staff Vs Lawal (2012) 10 NWLR (Pt 1307) 62 at 70. On the other hand, the liability of a party to the claim of a plaintiff is determined in the light of the pleadings and evidence led by a plaintiff, taking into consideration the applicable laws – Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342. Therefore, a person can be a proper party to an action and might not be found liable to the claim of a plaintiff if the pleadings and the evidence did not establish any wrongdoing on his part which contributed to the loss or injury suffered by the plaintiff.

The issue of whether or not the second Appellant was a proper party in the suit before the lower Court was settled in the Ruling which the parties agree was delivered by the lower Court on the 31st of July, 2008, on the application made by the Respondent to join the second Appellant as a party in the matter. It was also agreed that a further application to set aside the said Ruling was dismissed by the lower Court. The Appellants did not appeal against these Rulings and the Rulings are deemed conclusive on the issue of whether

or not the second Appellant was a proper party in the action. The issue was not opened to the Appellants to re-argue in their final written address and the lower Court was perfectly in order to have discountenanced the arguments canvassed thereon by Counsel to the parties in their respective final addresses. It was not a case of failure to rule on a vital issue, but one of self preservation as it would have amounted to the lower Court sitting on appeal on its Rulings if it had considered the issue. It is this issue of proper party that the Appellants cannot raise in this appeal without leave of Court having been first obtained to do so.
The issue of the second Appellant being liable for the claims of the Respondent was considered and pronounced upon by the lower Court for the first time in the judgment appealed against. The complaint of the Appellants in Ground Six of the Further Amended Notice of Appeal was against the entry of judgment by the lower Court against the second Appellant, not against his being made a party to the action. The complaint was directed at the finding of liability made against the second Appellant in the judgment. The law is that

a ground of appeal that arises from the judgment of a Court is competent – Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145, Ugwu Vs State (2013) 4 NWLR (Pt 1343) 172, Wanzami Vs Salisu (2014) LPELR 22337(CA). The complaint raised in Ground Six of the Further Amended Notice of Appeal was properly raised in this appeal.
The question that arises under this issue for determination is whether the lower Court can be faulted for entering judgment against second Appellant, along with the first Appellant, on the claims of the Respondent in the circumstances of this case? As stated earlier, liability of a party to an action is dependent on the pleadings and evidence led, taking into consideration the applicable laws. It was not in dispute between the parties that the second Appellant was the alter ego and the Managing Director of the first Appellant and it was he who signed the documents relating to the transactions with the Respondent. Over and beyond this, it was the case of the Respondent that the second Appellant made personal representations to him and which induced him to enter into the transaction with the first Appellant and that he would not have entered into the transaction with the first Appellant, but for the representations made by the second Appellant.

The Respondent led oral evidence in proof of these assertions and his evidence thereon was not touched upon, disparaged and/or discredited under cross examination. The Appellants’ witness, the Finance Manager of the first Appellant, gave evidence denying that the second Appellant did not make any such representation to the Respondent. However, the witness did not say how she came about this information; whether she was present when the second Appellant and the Respondent had the conversation leading up to the transaction between the Respondent and the first Appellant, or she was so informed by the second Appellant. This omission made her testimony unreliable and lacking in credit and it was, at best hearsay evidence. Therefore, the oral evidence of the Respondent on the representations made by the second Appellant was not contradicted by any contrary credible evidence. This made the evidence available to the lower Court to rely on in making its findings.

It is settled law that the second Appellant can be held liable on such oral representations which induced the Respondent to enter into the transaction with the first Appellant in case of any detriment suffered by the Respondent in the transaction – Bentley Vs Harold Smith Motors Ltd (1965) 1 WLR 623, Kuforiji Vs VYB (Nigeria) Ltd (1981) 6-7 SC 40. There was thus a basis, outside merely being a Managing Director of the first Appellant, for the lower Court to have found the second Appellant liable. The assertion of the Counsel to the Appellants that the judgment entered against the second Appellant, along with the first Appellant, was baseless is not correct. The fourth issue for determination is resolved in favour of the Respondent.

Before concluding this appeal, this Court considers it pertinent to comment on a recent growing trend it has noticed in legal practice. This is the tendency of legal practitioners to place more premium on legal arguments over a rigorous pleadings of facts and the art of cross examination in discrediting and disparaging the case of the adversary. They fail to properly contend against the case of the other party on the pleadings and in the course of cross-examining the witnesses called, preferring

instead to seek to do so in their written addresses. Counsels seem to forget that facts of a case are established by admission or omissions on the pleadings and in the evidence led at trial. Cross examination of a witness lies at the heart of the process of establishing facts in a trial. This point was succinctly made by Nweze, JCA, (as he then was) in Olowookere Vs State (2011) LPELR 9108(CA) thus:
“It is true, indeed, that the general aim of cross examination is to enable the adverse party to demolish or weaken the case of the party being cross-examined and also to afford the cross-examining party an opportunity of stating or presenting its case through the witness of its opponent… In a manner of speaking, therefore, it may be permissible to assert that the entire trial process revolves around this art of cross examination which Achike, JSC, graphically described as ‘a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party’, Oforlete Vs State … The Evidence Act, actually, underscores the purposes of cross examination in Section 200 which provides inter alia that:

when a witness is cross examined, he may, in addition to the questions referred to, be asked any question which tends (a) to test his accuracy, veracity or credibility, or (b) to discover who he is and what is his position in life, or (c) to shake his credit, by injuring his character …”
The mastery of this art of cross examination designed to interrogate the facts led by a party in support of its case, which was the centerpiece of advocacy in times past, is lacking in many legal practitioners of these days. It is settled law that facts led by a party in evidence, and not discredited or disparaged under cross examination, are deemed established – Amadi Vs Nwosu (1992) 5 NWLR (Pt 241) 275 and Simon Vs State (2017) LPELR 41988(SC). The duty of a trial Court is to determine cases based on the facts established at trial – Peacocks Educational Consult Vs Etonyeaku (2018) LPELR 46113(CA). Such facts constitute the fountain head of law and decisions or determination of cases are related to the facts and each case is considered in its factual milieu –Attorney General, Bendel State Vs Attorney General, Federation (1983) 1 SCNLR 239,

Attorney General, Abia State Vs Attorney General, Federation (2006) 16 NWLR (Pt 1005) 262 at 361, Asogwa Vs Peoples Democratic Party (2012) LPELR 8575(CA). The facts cannot be supplanted by legal arguments, no matter how brilliant. Thus, the Courts have stated over and over that address of Counsel cannot be substituted for pleadings and/or evidence – Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Auto Import Export Vs Adebayo (2005) LPELR 642(SC), Agugua Vs State (2017) 10 NWLR (Pt 1573) 254, Oforishe Vs Nigeria Gas Co Ltd (2018) 2 NWLR (Pt 1602) 35. Perhaps, a more engaging cross examination of the Respondent by Counsel to the Appellants might have impacted more on the outcome of this case.

In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No K/323/2005 by Honorable Justice Patricia Mahmoud on the 10th of November, 2017 is affirmed. The Respondent is awarded the costs of this appeal assessed at N100,000.00. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the advantage of reading in advance the leading judgment of my learned brother Abiru JCA just delivered. He has ably resolved the issues reaching the conclusion that the appeal not meritorious. I agree entirely. I too find no merit in the appeal and I dismiss it. I affirm the judgment of the trial Court delivered on 10th November, 2017 in Suit No. K/323/2005.

AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading the leading judgment before now. My learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA has aptly and satisfactorily considered and resolved all the four issues in this appeal. His reasoning and conclusion accords with mine. I adopt same in dismissing the appeal for want of any merit. I abide the order to cost.

Appearances:

Okitikpi with him, T. T. Oyebisi & S. O. AbdulRasheed For Appellant(s)

A. Attabor with him, M. E. Ogah For Respondent(s)