MR. AKINADE OLATUNJI ALEX & ANOR v. MR. ELIAS NDUBUISI ONAH
(2019)LCN/12595(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/J/200/2017
RATIO
COURT AND PROCEDURE: THE UNDEFENDED PROCEDURE LIST
“It is trite that the purpose of Order 23 of the Plateau State High Court Civil Procedure Rules under the Undefended List procedure is to obtain summary judgment without proceeding to trial and without calling witnesses. See CHIEF S. S. OBARO V. ALHAJI SULE HASSAN (2013) LPELR 20089, SURVEYOR B. J. AKPAN V. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD (2013) LPELR 20753. The step taken by the Respondent in placing the Suit under the Undefended List are those prescribed under Order 23 of the Plateau State Civil Procedure Rules and approved by plethora of decided case. See the case of CHIEF MIKE OKPERE & ANOR. V. ALHAJI GARBA MUSA RUGOJI & ANOR. (2002) LPELR. 12258. A defendant served with a writ of summons under the undefended list has to file his defence on merit for the Court to consider. Where the trial Court finds that the defence is meritorious, the Suit will be transferred from the Undefended List to the general Court’s List and pleadings would be ordered. The matter will then proceed to hearing. See the cases of ALHAJI UMARU MOHAMMED MAI BIREDI AZARE V. ALHAJI SHEHU ABDULLAHI MAI FLOUR (2005) LPELR 11425., NISHIZAWA LTD V. JETHWANI (1984) 12 SC. 234., ALHAJI ABDULKADIR ABACHA V. KURASTIC NIGERIA LIMITED. (2014) LPELR 22703.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: WHERE FALSE EVIDENCE IS PROVIDED
“The learned trial judge was wrong not to have found that these series of events and changing of gear by the respondent amounted to approbation and reprobation and refuse to rely on the testimony of the respondent as a witness of truth since he gave false evidence contrary to Section 256 OF THE PENAL LAW 1960 and his credit has been impeached. See also SECTION 233 (C) OF THE EVIDENCE ACT 2011, and the case A. G. RIVERS V. AG AKWAIBOM (2011) 8 NWLR PAGE 31 @ 99 PARA D-H, 129 PARA E-A, 186-187 PARA E-A PAGE. This honorable Court is urged not to rely on his testimony of a party making contrary allegation is not to be heard. The law is settled that contradictions between oral testimony in Court and previous statement renders both unreliable and likely to be rejected. See the case of FRN V. IWEKA (2011) 12. SCNJ PAGE 783 AT 805” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: THAT THE COURT IS TO RECEIVE ALL EVIDENCE
“It is trite that a trial Court is saddled with the duty to receive all available relevant evidence on issues joined in the matter before the Court and to weigh the evidence in the con of the surrounding circumstance of the case. Therefore, evaluation of evidence is absolutely important in the determination of the case and coming into a just conclusion. A trial judge must assess and appraise all evidence before him. See CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS V. JOHNSON O. OLORUNFEMI (1989) NWLR (PT.95) 26, ADENIJI V. ADENIJI (1972) 4 SC 10, ADELEKE V. IYANDA (2001) 13 NWLR (PT.729) 1, CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJU & ANOR, (2006) 13 NWLR (PT. 998) 517.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. MR. AKINADE OLATUNJI ALEX
2. WEALTH GATE GLOBAL RESOURCES LTD Appellant(s)
AND
MR. ELIAS NDUBUISI ONAH Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
Before the High Court of Plateau State sitting in Jos the Respondent in this appeal filed Suit No: PLD/J548/2014 against the appellants under the undefended list claiming the following reliefs.
(a). The sum of N1, 150,000.00 paid by the plaintiff on 10/10/2013 to the defendants for supply of a Dutch Ram pickup van which the Defendants have failed to supply.
(b). The sum of N1.7 million being the value of Mercedes Benz car, 1999 Model with chaisses No. 080683 which the plaintiff delivered to the Defendants for sale sometime in January 2014.
(c). The sum of N1.8 million being the value of Toyota Corolla 2006 Model with chaisses No. 089723 which the plaintiff delivered to the Defendants for sale sometime in January 2014.
(d). 10% interest per annum on judgment sum until final payment.
(e). The cost of the action.
Upon service of the Originating processes on the Defendant they filed their memorandum of Appearance on the 19th day of August 2015.
On the return date, the appellants admitted liability to the Respondent to the tune of N1.4 million. There and then the trial Court entered judgment for the admitted amount against the Appellants. Consequently, the Court transferred the remaining claims of the Respondent to the general course list and ordered pleadings.
In compliance with the order of the Court, the Respondent filed his statement of claim on the 21st day of December 2015. There in at paragraph 23 claimed against the Appellants jointly and severally as follows.
a). The sum of N1,150,000.00 paid by the plaintiff on 10/10/2013 to the Defendants for supply of a Dutch Ram Pick-up van which the Defendants have failed to supply.
b). The sum of N900,000.00 being the balance sum of Mercedes Benz car 1999 Model with chaises 080683, and Toyota Corolla 2006 Models with chaises No.089723 which the plaintiff delivered to the Defendants for sale sometimes in January 2014.
C). 10% interest par annum on judgment sum until final payment.
d). the cost of action.
Issues were joined by parties on the foregoing claims by the Respondent. The matter went through full hearing and in the end the learned trial judge, in his considered judgment delivered on the 31st day of March 2017 entered judgment in favour of the Respondent for the sum of N900,000.00 being the balance for the purchases of two vehicle Mercedes Car and Toyota corolla and the sum of N1,150,000.00 for the Pick-up Van which the 1st defendant neither supplied nor refunded the amount. In all judgment was entered in favour of the Respondent and against the Appellant for a total sum of N2,050,000.00 (Two Million, fifty thousand Naira) only plus the costs of the action.
Miffed with the outcome of the action, hence this appeal which is predicated on the notice of Appeal filed on 25th April 2017 containing five grounds. The appellant sought for an order allowing the appeal and setting aside the judgment of the lower Court.
The summary of the facts of the case as can be gleaned from the Record of appeal is that sometimes is 2013 the Respondent imported two cars from the United States of America i.e. Mercedes Benz 1999 Model with Chaises No. 080683 and Toyota Corolla 2006 Models with chaises No. 089723 at the sums of N1.3 million and N1.4 million respectively and subsequently handed them over to the 1st Appellant who is a car dealer for sale at N1.7million and N1.8.million respectively.
Their problem arose after when the Appellant sold the two cars failed, neglected and refused to remit the proceeds of the sale to the Respondent.
The appellant was said to go under and when in 2014, he resurfaced and through the intervention of one Sergeant Moses D. John of the Nigeria Air force and much pleading by the 1st Appellant that he could only pay N2,800,000.00 (Two Million Eight Hundred Thousand Naira) for the two vehicles sold, the Respondent conceded. The Appellant made an initial refund of N500,000.00 through the mediator (Moses D. John) there after he seized to make any further refund.
Prior to the foregoing transaction, the Respondent again claimed the refund of the sum of N1,150,000.00 (One million, One Hundred and fifty Thousand Naira only) which the Respondent gave to the Appellant to assist him purchase a Dutch ram Pick-up Van for his business. The Appellant neither purchased the vehicle nor returned the money to the Respondent.
The foregoing therefore, formed the bases of the action by the Respondent against the Appellant before the trial Court.
Consequent upon the filing of the Notice of Appeal, and the Record of Appeal transmitted within time on the 7th day of June 2017, respective Counsel filed and exchanged their brief of argument. The Appellant brief of argument authored by S. A. Abbah of Counsel was filed out of time on the 8th day of November 2017. and deemed as properly filed and served on the 9th day of November 2017. Likewise the Respondent?s brief of argument authored by Edwin O. Okoro Esq. was filed on 4th December 2017.
In their respective brief of argument they formulated the following issues for determination.
APPELLANT?S ISSUE FOR DETERMINATION.
Whether the lower Court was right considering all the processes filed at the undefended list stage, pleadings at the general cause list and evidence led in support of pleadings to enter judgment in favour of the Respondent in the Sum of N2,050.000.00 (Two Million, fifty Thousand Naira only.(Distilled from issues 1-5)
RESPONDENT?S ISSUES FOR DETERMINATION.
‘Whether the trial Court was right when it entered judgment in favour of the Respondent?’.
On the 31st day of October 2018, Respective Counsel adopted their brief of argument.
Having carefully read through all the processes filed by respective parties, the brief of argument inclusive and after considering the respective sole issue formulated which are same in substance, I have decided to adopt the sole issue distilled by the Appellant for the determination of this appeal.
ISSUES FOR DETERMINATION.
Whether the lower Court was right, considering all the processes filed at the undefended list stage, pleadings at the general cause list and evidence led in support of pleadings to enter judgment in favour of the Respondent in the Sum of N2,050,000.00 (Two Million, fifty Thousand Naira) only? (Distilled from issues 1 – 5)
The contention of the appellant is that other than the sum of N1,400,000.00 admitted by him, he is not liable to any other relief claimed by the Respondent. He argued that after the trial Court entered judgment for the admitted sum, what was transferred to the general cause list is N3,250,000.00 (Three Million Two Hundred and fifty thousand Naira only) but the Respondent mysteriously in his statement of claim and witness statement on oath, the Respondent claimed N2,050,000.00 (Two Million fifty Thousand Naira) only which amount is less by (N1,200,000.00) One Million, Two Hundred Thousand Naira)only.
He added that the learned trial judge did not avert his mind to the important fact that the pleadings and evidence of the Respondent contradicted each other in the sense that the Respondent averred in his supporting affidavit in support of the writ under the undefended list that the Appellant is indebted to him to the tune of N4,650,000.00 which amount has not been paid despite repeated demand. He submitted that the learned trial judge was wrong not to have found that these series of events and changing of gear by the Respondent amounted to approbating and reprobating and ought not rely on the testimony of the Respondent. He referred to Section 156 of the Penal Code Law 1960 and Section 233 (c) of the Evidence Act 2011, and the case of A. G. RIVERS V. A. G. AKWA IBOM (2011) 8 NWLR Page 31 at 99. Para. D – H., 129 Para. E. A, 186 – 187 Pra E . A.
He added that it is settled that contradictions between oral testimony in Court and previous statement renders both unreliable and likely to be rejected. He relied on the case of FRN V. IWEKA (2011) 12 SCNJ PAGE 783 AT 805. He argued that to recover his money from the Appellants, Respondent dragged the 1st Appellant before the offices of the Nigeria Air force where the Respondent collected N500,000.00 (Five Hundred Thousand Naira) from the 1st Appellant. He relied on Exhibit B3. He added that the learned trial judge did not consider that the Respondent conceded under cross examination that the Appellants owed him N4,650,000.00 (Four Million Six Hundred and Fifty Thousand naira) before July 2014 and still signed Exhibit B which revealed the total amount to be N2,800,000.00 (Two Million Eight Hundred Thousand Naira) and the balance due to him to be N2,300,000.00 (Two Million Three Hundred Naira) and the fact that no Dutch Ram Pick-up Van for the sum of N1,150,000.00 (One Million One Hundred and Fifty Thousand Naira) which transaction he claimed was before the others as seen in paragraph 11 of the Respondent’s witness statement. He referred to page 101 of the Record). He said that it was included in the said Exhibit B3 nor the N200,000.00 (Two Hundred Thousand Naira) that the Respondent claimed he borrowed the appellant before their transaction. He submitted that if the learned trial judge considered and evaluated these piece of evidence, he would have disbelieved the Respondent and believed the Appellant that there is no contract for the purchase of Dutch Ram Pick-up Van between the parties and that the money paid to the Respondent via transfer is to offset monies owed to the Respondent.
In respect of the transaction on the issue of supply of a pick-up Van, he submitted that the finding of the learned trial judge on page 218 of the record that the Appellants are estopped from denying that the N1,150,000.00 (One Million, one hundred and fifty Thousand Naira only) paid for the said vehicle was between the Respondent and Mr. Samson was in error. He contended that the transaction was between Mr. Samson and the Respondent and that the pick-up was not given to the Respondent because he has not paid the balance to Mr. Samson. He urged the Court to hold that there was no contract for the purchase of Dutch Ram Pick-up Van between the parties and hence there was no onus on the appellant to produce Mr. Samson or tender document to that effect. He added that the respondent who chose to seek for remedy at the Nigeria Air Force had a duty to claim all that was due to him as at that date i.e (14/07/2014). When their transaction was reduced to writing. He is estopped and barred from claiming another remedy outside Exhibit B3. He relied on the case of ONUEKWUSI V. TRUSTEES (2011) 2 SCNJ .Pg 126 at 140 and Section 169 of the Evidence Act 2011. He argued further that the learned trial judge did not consider paragraphs 17-23 of the pleadings of the Respondent which are all deemed abandoned as there is no evidence in respect of same. He relied on the case of ANYAH V. IMO CONCORDE HOTEL LTD (2003) FWLR (pt. 138) 1308 at 1352. Para C. D.
It is his contention that the finding of the lower Court on page 205 of the Record that the Appellant pleaded with the Respondent that he could not sell the car as earlier agreed but pleaded for a reduced price which was reluctantly agreed by the Respondent is perverse because the Respondent never said so in his evidence in chief. He submitted that averments in pleadings are facts as perceived by the party relying on them. There must be evidence to support the pleaded facts and where pleadings are without evidence to support it, it will be worthless and deemed abandoned. He relied on the following cases:CAMEROON AIRLINES V. OTUTUIZU (2011) 2 SCNJ. PAGE 96 AT.118, LINES 8-11., REGISTERED TRUSTEES B.C & S v. EDET (2016)5 NWLR (PART 1505) 387 at 403 PARA F – G. EYIGEBE V. IYAJI (2013) 5 SCNJ. 428 at 441 lines 30-32. He submitted that where an averment is not supported by evidence as in this case, such averment must be struck out by the Court. Courts are not to manufacture evidence. He cited the case of KAYDEE V. HON. MINISTER (2010) 2 SCNJ 276 at 299. LINE 23 – 25, 31 – 37.
He argued that the learned trial judge conclusion refusing to rely on Exhibit C and C1 to set off the amount claimed by the Respondent because the Appellant did not file a counter claim and call the author of the receipts as witnesses and the amount therein varied from the amount pleaded expended. He submitted that this occasioned a miscarriage of Justice. Its receipt in law is itself proof of payment. He referred to the Dictionary meaning of receipt in the Black?s Law Dictionary (9th Edition, Bryan Garner) page 1382.
He therefore argued that the tendering of Exhibit ‘C’ and ‘C1’ and corroborating same by oral evidence, the Appellant had proved that payment was actually made with Respect to the repairs which he carried out and as such, there is no further burden of proof to call the maker i.e. the issuer of the said Exhibits. He contended further that the onus of proof has shifted on the Respondent to refute same and that the Appellant need not counter claim for the said amount since it was in proof of payment of a part of the sum they admitted owed the Respondent. He contended that the difference in the amount expended by the 1st Appellant for the repairs and the total sum on Exhibits C & C1 is not a contradiction but rather the amount proved by the receipts. The finding of the learned trial judge that no money was paid by transfer to the Respondent occasioned a miscarriage of justice. He argued that it is on record as testified by the 1st Defendant/ Appellant that he transferred the sum of N300,000.00 (Three Hundred Thousand Naira only) via instant payment Transfer which the Respondent admitted but in a twist said it was N200,000.00 (Two Hundred Thousand Naira only) and that it was meant for another transaction requires no further proof by the Appellant. He relied on Section 75 of the Evidence Act and the case of TAIWO VS ADEGBORO (2011) 11 NWLR (PT. 1259) at 583 = 584.
He submitted that the Onus has shifted to the Respondent to prove that the payment was actually for another transaction as asserted by him and where he fails to prove same, the issue of payment via transfer ought to be resolved in favour of the Appellants. He submitted further that by the rule of pleadings, any allegation made by a party forms part of the party’s case and the proof of such allegation lies squarely on the party with credible and positive evidence. He added that the burden of proof is not static but oscillates between the claimant and the defendant. He relied on the following cases. FBN PLC V. M.O NWADIALU & SONS LTD (2016) 18 NWLR (PART 1543) 1 at 30 – 31 paras G. A 38 PARA E ? F, BELLO V. GOV. GOMBE STATE (2016) 8 NWLR (PT. 1514) PAGE 267, PARA A – D.
He argued that the learned trial judge did not consider whether the burden on the Respondent was discharged. He added that the Appellant in a bid to demolish the stance of the Respondent in this regard established during cross examination of the Respondent that the alleged amount of the transfer was due since July 2014 and in the absence of any other written agreement to show that there was another debt to be defrayed, the Court must believe the Appellant that the transfer was to part pay the balance in Exhibit B 3. He submitted that Courts are to restrict themselves to the evidence placed before them and no more. He relied on the case of OHOCHUKWU V. AG RIVER STATE (2012) 2 SCNJ 58 at page 79. Lines 33 – 36. He submitted that the trial Court was on the strength of all the above wrong to enter judgment in the sum of N2,050,000.00 for the Respondent.
He urged the Court to allow the appeal and set aside the judgment of the Trial Court.
In arguing the sole issue, the Respondent urged the Court to answer the question posed in issue one in the positive.
He submitted that the Respondent can reduce his claim in the writ of Summons and that it is trite law that statement of claim supercedes the writ of Summons. The Respondent can either reduce or add to his claim. He cited the following cases in support. JAMBO V. GOV. RIVER STATE (2007) 17 NWLR (PT. 1062 198 at 216 para G. H, AYORINDE V. ONI (2000) 3 NWLR (PT. 649) 348 – 528 at 367. Para C. He contended that the Respondent in line with his statement of claim under the general cause list posited in paragraph 17 of his witness statement on Oath contained in the supplementary record testified to the fact and tendered the letter of acknowledgement as Exhibit B3 which the Appellant also attached to their affidavit in support of their Notice of intention to defend. He again referred to paragraph 3 (d) of the joint statement of defence contained on page 129 of the record of appeal. He also relied on Exhibit B3. (Letter of Acknowledgment) from the averment in the witness statement on Oaths and the content of Exhibit B3. It is established that the balance of N2,300,000.00 has been established by both admission by the Appellants and the documentary evidence.
He stated that on the 17th day of December 2015 the Appellant only admitted owing the sum of N1,400,000.00 and judgment was entered for the admitted amount under the undefended list while the remaining claims were transferred to the general cause list. He submitted that if N1,400,000.00 is deducted from N2,300,000.00 it will give a balance of N900,000.00. Hence the claim of the Respondent in paragraph 23 (b) for N900,000.00. Based on the foregoing he urged the Court to disregard the submission of the learned Counsel representing the Appellant that the Respondent’s earlier claim of N4,650,000.00 mysteriously came down to 2,050,000.00 from the angle of the Respondent, it is clear that the earlier agreement with the Appellants was to sell the cars at N1.7 million and N1.8 million which is N3.8 million and when added with N1,150,000.00 which the Respondent earlier paid into the 2nd Appellant’s account the total will be N4,650,000.00. He submitted that there is nothing wrong in the decision of the Respondent to abandon his initial agreement with the Appellant in relation to the two Cars to now claim a lesser amount which the 1st appellant admitted in his defence.
On the proof of the claim of N1,150,000.00 the learned Counsel representing the Respondent referred to the adopted statement of the Respondent (PW 3) before the trial Court. In addition to this, he also refer to the testimony of the witness of the Respondent (PW1) who produced the Zenith Bank Account Statement showing that on 10th day of October 2013 the Respondent transferred the said sum of N1,150,000.00 into the GTB Account of the 2nd Appellant (See Exhibit A 1). He argued further that the Respondent having established that such payment was made to the Appellants, the Onus of proof now shifts to the Appellant to give explanation by way of credible evidence, what happened to the said sum of N1,150,000.00 given them by the Appellant. He contended that it is the 1st Appellant’s Duty to establish the averment in paragraph 4 (e) and (g) of the statement of defence.
The appellant in paragraph 4 (e) admitted that the Respondent paid the said sum into the Account of the 2nd Appellant. He submitted that it is trite that he who asserts must prove. He relied on Section 123 of the Evidence Act 2011. He argued further that the Appellant claimed that the said N1,150,000.00 paid by the Respondent was meant for one Samson. But he failed woefully to give account of what he did with the money. If he had given the money to one Samson, he ought to provide clean and unequivocal particulars. The appellants did not even know the full name of the person they claimed to be Mr. Samson, Neither did they tender any document to show that they transferred the money to the said Mr. Samson account or present any deposit teller in that respect. Above all, they did not call the said Mr. Samson to give evidence that he had any transaction with the Respondent.
He submitted that the 1st Appellant?s evidence as to what happened to the sum of N1,150,000.00 paid into their account by the Respondent is not only vague but also unreasonable and unbelievable. It is feeble and weak. Rather the evidence of the respondent is clear, credible and reasonable in the circumstance. He relied on the case ofAGBI V. OGBEH (2006) 11 NWLR (PT 990) 65 at 116. He argued that it could be seen that the 1st Appellant was merely telling lies when he said that the Respondent merely used their account to pay one Mr. Samson. He contended that the question that begs for answer is; If it is true that the Respondent and the said Samson had business, why can?t the Respondent pay Mr. Samson directly? Why should the Respondent pay the said Samson through the account of the Appellants? He submitted that there is no iota of evidence from the 1st Appellant to explain all these posers. He contended that the evidence of the 1st Appellant as DW1 at the lower Court is replete with lies. He referred to the case of UKAEGBU V. NWOLOLO (2009) 3 NWLR (PT.1127) 194 at 224 para E. F. He submitted that the case of the Respondent that he paid the sum of N1,150,000.00 apart from having been established by both oral and documentary evidence has not been denied but was admitted by the Appellants. Therefore the evidence of the Respondent as PW2 before the trial Court remains uncontroverted, unchallenged and credible as was held in the case of HEIN NEBELUNG TSENSEE K. G. V. PLC (2012) 16 NWLR (PT. 1326) 357 at 384. He urged the Court to hold that the Respondent has established the above claim and is entitled to the said sum of N1,150,000.00.
On the issue of payment of N500,000.00 out of N2,800,000.00 he submitted that the Appellants having admitted that the Respondent paid the said amount of money have the onus to show that the balance of N2, 300,000.00 has been paid to the Respondent. He argued that the appellants in paragraph 3 (f) of their statement of defence made bogus but unfounded and escapist allegation that they spend the sum of N600,000.00 repairing the two cars. To support this the appellants tendered exhibits C & C1. In the said exhibit C & C1, the total sum that can be seen is N436,000.00 This contradicts the averment in the statement of defence and the witness statement on Oaths. It is also the evidence of the 1st Appellant that the Respondent did not give him any written authority to repair his cars.
He therefore, submitted that it is trite law that where there is contradiction in the evidence of a party, the Court will not pick and choose which one to believe and which not to believe. He cited the case of DOMA V. INEC (2012) 13 NWLR (PT. 1317) 297 at 322 – 323 para G-C. He added that where the evidence is at variance with pleadings, such evidence goes to no issue. He referred to the finding of the trial Court on this issue contained on page 216 lines 9 ? 22 of the Record of Appeal.
Finally he urged the Court to resolve the issue in the positive and against the appellant.
Consequent upon my careful reading of the brief by the respective party and considering the adopted issue of the appellants, it is my view that the complaint of the appellant is that the judgment of the trial Court is against the weight of Evidence and hence miscarriage of justice occasioned. Put in another way, it is an allegation which suggests that the Court did not properly evaluate the evidence placed before it to arrive at the conclusion reached.
The question that is now yearning for answer is whether or not the Court properly evaluated the evidence before it and whether miscarriage of justice was occasioned in entering judgment for the Respondent for the sum of N2,050,000.00.
In the brief of argument of the Appellant he accused the learned trial judge of failing to find against the Respondent who changed his original claim under the undefended list to a different one when the matter was transferred to the general cause list. The foregoing can be seen from the opening argument of the learned Counsel representing the appellants. For purposes of better understanding, I herein under reproduce the relevant part of the Appellants brief starting from page 2 paragraph 4.1. it goes thus: ‘My lords are urged to resolve the sole issue for determination in the negative.’
This Suit was commenced at the lower Court by the Respondent?s writs of summons in Suit No PLD/548/2014 under the undefended List Procedure where the Respondent claimed the total sum of N4,650,000.00 (Four Million Six Hundred and fifty Thousand Naira only), against the appellants herein, jointly and severally. In support of the writs, the Respondent personally swore to an affidavit on Oath where he deposed particularly in paragraph 16 to the part that the total indebtedness of the appellants to him was N4, 650,000.00 (Four Million Six Hundred and Fifty Thousand Naira only) (see pages 1 – 8 of the printed Record of proceedings of the lower Court).
The appellants in response, filed a Notice of Intention to Defend and admitted indebtedness to the respondent but only to the sum of N1,400,000.00 (One Million Four Hundred Thousand Naira only) and that contrary to the depositions of the Respondent that no money has been paid to him, they had paid the Respondent some money and exhibited proof, and stated further that the pick-up Van transaction had nothing to do with them. (see pages 82 – 89 of the printed Record of proceedings) The lower Court entered judgment for the Respondent as per the admitted amount and transferred the balance thereof, which stood at N3,250,000.00 (Three Million Two Hundred and fifty Thousand Naira Only) to the general cause list and ordered the filing of pleadings.
Mysteriously however, the Respondent filed his statement of claim and witness statement on Oath and claimed for the sum of N2,050,000.00 (Two million, Fifty Thousand Naira) only as the money due to him, which is less by N1,200,000.00 (One Million Two Hundred Thousand naira only) as per the amount transferred to the general cause list. The trial judge did not avert his mind to the important fact that the pleadings and evidence of the Respondent who testified for himself contradicted his earlier evidence on Oath since the Respondent who stated under Oath in his affidavit in support of the suit under the Undefended List that he is owed N4,650,000.00 (Four Million, Six Hundred fifty Thousand Naira only) and has not been paid anything despite several demands somersaulted again and gave another testimony also under Oath sharply contradicting his earlier statement and even tendered exhibit B3 which was used by the Appellant under the Undefended List to challenge him and show that he had indeed received some money from the Appellants.
The learned trial judge was wrong not to have found that these series of events and changing of gear by the respondent amounted to approbation and reprobation and refuse to rely on the testimony of the respondent as a witness of truth since he gave false evidence contrary to Section 256 OF THE PENAL LAW 1960 and his credit has been impeached. See also SECTION 233 (C) OF THE EVIDENCE ACT 2011, and the case A. G. RIVERS V. AG AKWAIBOM (2011) 8 NWLR PAGE 31 @ 99 PARA D-H, 129 PARA E-A, 186-187 PARA E-A PAGE. This honorable Court is urged not to rely on his testimony of a party making contrary allegation is not to be heard. The law is settled that contradictions between oral testimony in Court and previous statement renders both unreliable and likely to be rejected. See the case of FRN V. IWEKA (2011) 12. SCNJ PAGE 783 AT 805
In the light of the foregoing, it is clear to me that the learned Counsel representing the Appellant has a misconception of the procedure under the Undefended List. It is clear as crystal that the learned trial judge on the return date after granting the leave to place the Suit under the Undefended List considered the defence of the Appellant filed after entering of appearance and filing of notice of intention to defend, transferred the remaining claim of the Respondent against the Appellants consequent upon the unequivocal admission of the 1st Appellant and on behalf of the 2nd Appellant a corporate entity of the sum of N1,400,000.00 (One Million Four Hundred Thousand naira only) ordered pleadings and adjourned the case for hearing. Parties there after filed and exchange pleadings. See page 191 of the Record of proceeding.
Let me quickly note that it is sad that the learned Counsel representing the appellant in my humble view seems to be ignorant of the procedural Rule under the Undefended List. I advice he creates time to read Order 23 of the High Court Civil Proceeding Rules of Plateau State 1987. The learned trial judge upon hearing the exparte motion by the Respondent (see pages 186) of the Record granted the order placing the Suit under the Undefended List on 11/12/2014. (See page 187 of the record of proceedings). Upon entering of appearance by the Appellants, and after considering the defence of the appellant, and the admission of the sum of N1,400,000.00 by the Appellant out of the claims of the Respondent, the learned trial judge in his wisdom entered judgment for the admitted sum against the appellants and transferred the remaining claim to the general cause list for trial. Pleadings were then ordered. (See page 191 of the Record of proceedings). It is obvious from the record and in particular paragraph 23 of the statement of claim by the Respondent that the remaining claim of the Respondent are;
A) The sum of One Million One hundred and fifty Thousand Naira paid by the Plaintiff on the 10/10/2013 to the defendant for supply of a Dutch Ram Pick-up which the Defendant failed to supply
B) The balance of N900,000.00 being the sum of Mercedes Benz Car 1999 model, chaises No. 080683 and Toyota Corolla 2006 model with chaises No. 089723 which the plaintiff delivered to the defendant for sale sometime in January 2014.
C) 10% interest per annum on the judgment sum until final payment.
D) Cost of the action (see page 204 of the Record)
The foregoing claim went into full trial and in the end the learned trial judge entered judgment in favour of the Respondent and against the Appellants jointly and severally for the sum N2,050,000.00, plus the 10% interest from the date of judgment and till when the said amount is liquidated and plus the cost of the action.) See pages 218 ? 219 of the Record.)
Considering the foregoing process adopted by the trial Court, which is in compliance with the dictate of Order 23 of the High Court Civil Procedure Rules 1987 in my humble view, It will be out of reason to suggest that the Court was approbating and reprobating nor confused in the conduct of the proceeding in the Suit. It is trite that the purpose of Order 23 of the Plateau State High Court Civil Procedure Rules under the Undefended List procedure is to obtain summary judgment without proceeding to trial and without calling witnesses. See CHIEF S. S. OBARO V. ALHAJI SULE HASSAN (2013) LPELR 20089, SURVEYOR B. J. AKPAN V. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD (2013) LPELR 20753.
The step taken by the Respondent in placing the Suit under the Undefended List are those prescribed under Order 23 of the Plateau State Civil Procedure Rules and approved by plethora of decided case. See the case of CHIEF MIKE OKPERE & ANOR. V. ALHAJI GARBA MUSA RUGOJI & ANOR. (2002) LPELR. 12258. A defendant served with a writ of summons under the undefended list has to file his defence on merit for the Court to consider. Where the trial Court finds that the defence is meritorious, the Suit will be transferred from the Undefended List to the general Court?s List and pleadings would be ordered. The matter will then proceed to hearing. See the cases of ALHAJI UMARU MOHAMMED MAI BIREDI AZARE V. ALHAJI SHEHU ABDULLAHI MAI FLOUR (2005) LPELR 11425., NISHIZAWA LTD V. JETHWANI (1984) 12 SC. 234., ALHAJI ABDULKADIR ABACHA V. KURASTIC NIGERIA LIMITED. (2014) LPELR 22703.
In my humble view the learned trial judge has strictly complied with the laid down procedure under the rule hence the Court can not be accused of approbating and reprobating.
Having come to this conclusion what is left for consideration is whether or not the learned trial judge properly evaluated the evidence placed before the Court to arrive at the finding and conclusion reached. It is trite that a trial Court is saddled with the duty to receive all available relevant evidence on issues joined in the matter before the Court and to weigh the evidence in the con of the surrounding circumstance of the case. Therefore, evaluation of evidence is absolutely important in the determination of the case and coming into a just conclusion. A trial judge must assess and appraise all evidence before him. See CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS V. JOHNSON O. OLORUNFEMI (1989) NWLR (PT.95) 26, ADENIJI V. ADENIJI (1972) 4 SC 10, ADELEKE V. IYANDA (2001) 13 NWLR (PT.729) 1, CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJU & ANOR, (2006) 13 NWLR (PT. 998) 517.
Having said this, I will examine the judgment of the trial Court with a view of determining whether or not the Court properly evaluated the evidence placed before it.
In order to establish his claim before the trial Court, the Respondent in paragraph 17 of his witness statement on Oath testified to the fact that he gave two vehicle to the appellant for sale.
In support he tendered exhibit B3. There is that averment in the joint statement of defence by the Appellant that supports this. (see paragraph) 3 (d) of the joint statement of Defence).
Further to the foregoing and on the claim of N1,150,000.00, The Respondent posited that he paid into the account of the Appellants on 10/10/2013, the sum of N1,150,000.00 with the GTB (Guaranty Trust Bank) and tendered exhibit A1. A peep into paragraph 4 (e) of the statement of defence of the appellant exposes the fact that the Appellant admitted the payment of the said sum of money in the account of the 2nd Appellant and which the 1st Appellant is the alter ego.
The learned trial judge in his finding on page 218 of the Record after reviewing the evidence on both side, and properly evaluated them, came into the conclusion therein (see page 218 lines 11-17 of the Record)
Further to this, the learned trial judge also considered the defence of the appellant that they expended the sum of N600,000.00 to repair the vehicle given to him to sell. This defence was to serve as a set off to the claim of the Respondent. So also the alleged payment of N300,000.00 by the Appellants to the Respondent was equally considered by the learned trial judge, see pages 215 – 216 of the Record.
The cumulative effect of the foregoing points unequivocally to nothing other than the fact that the learned trial judge properly and meticulously considered the evidence and exhibits placed before it by respective parties before coming into the conclusion reached. I am therefore left in no doubt in concluding that the learned trial judge properly evaluated the evidence placed before the Court.
In the light of the foregoing therefore I find no probative substance to warrant this Court to tamper with the finding and conclusion reached by the trial Court and hence the sole issue is resolved against the Appellant.
In consequence, I decree this appeal meritless and same be and is hereby dismissed.
The judgment of the High Court of Plateau State in Suit NO PLD/548/2014 delivered on the 31st day of March 2014 coram Hon. Justice P. L. Lot is hereby affirmed.
I award a cost of N100,000.00 against the Appellants Jointly and in favour of the Respondent.
UCHECHUKWU ONYEMENAM, J.C.A. : I have had a preview of the leading judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the reasoning and conclusion therein that the appeal lacks merit. It is hereby dismissed for the same reasons as contained in the leading judgment.
I also affirm the judgment of the High Court of Plateau State delivered on March 31, 2014 by P.L. Lot, J. in Suit No. PLD/J548/2014.
I abide by the order as to costs.
TANI YUSUF HASSAN, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA, just delivered.
I agree with the reasoning and conclusion dismissing the appeal for devoid of merit.
I accordingly affirm the judgment of the lower Court and I abide by the order as to costs.
Appearances:
I. O. AkinmadeFor Appellant(s)
E. O Okoro with him, J. E. EsanubiFor Respondent(s)
