MR. ALEXANDER AJONYE v. MR. MIKE NWACHUKWU
(2011)LCN/4289(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of February, 2011
CA/A/274/2008
RATIO
UNCHALLENGED APPEAL: POSITION OF THE LAW WHERE THE RESPONDENT TO THE APPEAL DID NOT FILE A BRIEF OF ARGUMENT TO ANSWER ALL THE MATERIAL POINTS OF SUBSTANCE CONTAINED IN THE APPELLANT’S BRIEF
This appeal is in the circumstances set out above, an uncontested one, one which is one sided for being unchallenged. Because the Respondent to the appeal did not file a brief of argument to answer all the material points of substance contained in the Appellant’s brief, the law deems that the Respondent has conceded to all the points canvassed by the Appellant in support of the appeal. See:- SHONA-JASON v. OMEGA ACR (2006) 1 NWLR (960) 1 at 27, ECHERE v. EZIRIKE (2006) ALL FWLR (323) 1595 at 1608, ABUBAKAR V. INEC (2004) 1 NWLR (1854) 207. PER MOHAMMED LAWAL GARBA, J.C.A.
BRIEF OF ARGUMENT: WHETHER AN APPELLANT WILL AUTOMATICALLY BE ENTITLED TO JUDGMENT IN AN APPEAL WHERE THE RESPONDENT(S) IN THE APPEAL OPTED, NEGLECTED OR FAILED TO FILE THE RESPONDENT’S BRIEF OF ARGUMENT
…the law is also settled that an Appellant in this court is to succeed on the strength or merit of the grounds of appeal and issues canvassed in the appeal and not on the absence of a Respondent’s brief to answer those issues. An Appeliant is therefore not automatically entitled to judgment in an appeal simply because the Respondent/s in the appeal opted, neglected or failed to file the Respondent’s brief of argument. Before such an Appellant can or is entitled to succeed or win an appeal, he had the legal duty to demonstrate in the submissions in support of appeal, and that of the court to consider and be satisfied that the appeal is sustainable in law’ An Appellant must succeed or as the case may be fail on the merit and sustainability of the submissions contained in his brief of argument and the mere absence of the Respondent’s brief of argument would not affect or change that position. See: AKAS V. MANAGER (2001) 8 NWLR (715) 436 at 442, SOFALAHAN v. SOFOLAHAN (1999) 10 NWLR (621) 86, OKONGWU V. NNPC (1989) 4 NWLR (115) 296, ECHERE v. EZIRIKE (SUPRA) also reported in (2006) 12 NWLR (994) 386. PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 75 OF THE EVIDENCE ACT AS TO WHETHER ADMITTED FACT IN PLEADINGS REQUIRES FURTHER PROOF
The High Court relied on Section 75 of the Evidence Act for that position which provides:- “75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by the pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. From these provisions, unless a court in its discretion provided for in the proviso, requires or calls on a party to prove fact admitted otherwise than by such admission, by the rules of pleadings, an admitted fact in pleadings does not require further proof in civil proceedings. In the case of DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392 at 405, the erudite Karibi-Whyte, JSC had concisely stated the law that:- “It is an elementary rule of pleading that what has been admitted requires no further proof.” In addition, this Court in the case of AKIBU v. ODUNTAN (1992) 2 NWLR (222) 210 at 226-7 had restated the position thus:- Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not Joined issues which make proof unnecessary.” See also: NWAKAMA V. MILITARY ADMINISTRATOR, ABIA STATE (1995) 4 NWLR (388) 185 at 187, UNITED NIGERIA INSURANCE V. UNIVERSAL COMMUNICATIONS & INDUSTRIES CO. (1999) 3 NWLR (593) 17 AT 25, GABARI V. ILORI (2002) 14 NWLR (786) 78 at 100. PER MOHAMMED LAWAL GARBA, J.C.A.
CONTRADICTIONS IN THE EVIDENCE OF WITNESSES: WHEN ARE PIECES EVIDENCE SAID TO BE CONTRADICTORY ; WHETHER WHERE CONTRADICTIONS ARE SHOWN IN THE EVIDENCE OF WITNESSES CALLED BY A PARTY, THEY WOULD BE DISREGARDED BY THE COURT AS UNRELIABLE
Speaking generally, the law is that where contradictions are shown in the evidence of witnesses called by a party on the material facts he relies on in support of the position he asserts in a case, such evidence should, because it is not worthy of belief, not be believed and relied on by a court in deciding the facts in issue. Two or more pieces of evidence would be contradictory where they affirm the contrary or opposite of what the other(s) says or states. Pieces of evidence would be contradictory when they are in direct conflict, irreconcilable, inconsistent and totally against each other in their substance such that all of them cannot represent the truth of their content at the same time. Such pieces of evidence would be unreliable in the proof or in respect of the facts to which they relate and so the attitude of the courts has been to reject them. See: ONUGBOGU V. STATE (1974) 9 SC. 1, MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR 393, YUSUF V. OBASANJO (2006) ALL FWLR (294) 387. There is however a caveat to the above principle of law which is that it is only where or when the contradictions in the pieces of evidence are on material facts in issue in the case would they be disregarded by the court as unreliable. Where they only amount to minor discrepancies that do not touch or affect the substances of the facts they relate to, they are not material and would be ignored. This is because the absence of any discrepancy in the testimony of two or more witnesses called by a party would easily give the reasonable impression that such evidence is doctored, tailored and therefore the usual accompaniment of a concocted story since imperfection in human memory or reflection is quite normal. See: SEGEDE V. BAMIDELE (2006) ALL FWLR (303) 308, OLADELE V. STATE (1991) 1 NWLR (170) 708. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
MR. ALEXANDER AJONYE Appellant(s)
AND
MR. MIKE NWACHUKWU Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the F.C.T. High Court, (to be called High court after now) in Suit No. FHC/HC/CV/820/2000 contained in a judgment delivered on the 14/6/05. The judgment was entered in favour of the Respondent as plaintiff in High court and being dissatisfied with it, the Appellant caused a notice of appeal dated the 13/9/05 to be filed on the same date against same. The notice of appeal is at pages 229-233 of the printed record of appear and contains four (4) grounds of the dissatisfaction by the Appellant against the judgment which are as follows; without their particulars:-
‘GROUNDS OF APPEAL
(1) The judgment is against the weight of evidence.
(2) The learned trial Judge erred in law when he awarded the sum of N650,000.00 (Six hundred and fifty thousand Naira) to the Respondent whereas the pleadings and evidence of the Defendant (Appellant herein) which specifically traversed the claim for it was sustained and upheld by the court
(3) The learned trial Judge erred in law when he held that the testimonies of DW1 and DW2 as to the circumstances under which Exhibit ‘C’ was made were materially contradictory.
(4) The learned trial Judge misdirected himself on the facts when he held that, the sum of N220,000 admitted by the Defendant only forms part of the amount contained in Exhibit ‘C’.”
The record of the appeal was transmitted from the High court and received in this court on the 25/9/09 and the Appellants brief of argument in respect of the appeal, was filed on the 26/9/0g, the following day. By the provisions of order 17, Rule 4(r) of the court of Appeal Rules, 2007, the Respondent to the appear was required to file a brief of argument within thirty (30) days of the service of the brief for the Appellant. The Respondent did not file the Respondents brief in the appeal and so a motion dated and filed on the 9/10/09 by the Appellant for the appeal to be heard on the Appellant’s brief alone was granted by the court on 9/6/10. The appeal was set down the hearing on the 18/1/11 by which date there was no record that the Respondent had filed a brief of argument in the appear or taken any step to do so even though duly served with hearing notice through learned counsel. On the said date of 18/1/11 when the appeal was called in Court for oral hearing, Dr. J. Y. Musa, learned Counsel who settled the Appellant’s brief of argument, leading E. E. Eko, M. C. Sojachukwu, J. O. Musa and S. Omale, Esq. appeared for the Appellant. The Respondent and Counsel were absent and there was no communication from either of them but particularly the learned counsel who was served with the hearing notice of the appeal on the 10/1/11 as indicated on the endorsement on a copy of the hearing notice filed by the Bailiff of the Court.
Since the appeal was fixed for hearing on the Appellants brief alone pursuant to the court order, the Appellant brief was adopted by the learned counsel for the Appellant as his submissions in support of the appeal on which he relied. We were urged by him to allow the appeal, set aside the judgment of the High court and pursuant to Section 16 of the court of Appeal Act, give judgment in favour of the Respondent in the sum of N220,000.00 less N70,000.00 already paid by the Appellant.
This appeal is in the circumstances set out above, an uncontested one, one which is one sided for being unchallenged. Because the Respondent to the appeal did not file a brief of argument to answer all the material points of substance contained in the Appellant’s brief, the law deems that the Respondent has conceded to all the points canvassed by the Appellant in support of the appeal. See:-
SHONA-JASON v. OMEGA ACR (2006) 1 NWLR (960) 1 at 27,
ECHERE v. EZIRIKE (2006) ALL FWLR (323) 1595 at 1608, ABUBAKAR V. INEC (2004) 1 NWLR (1854) 207.
However the law is also settled that an Appellant in this court is to succeed on the strength or merit of the grounds of appeal and issues canvassed in the appeal and not on the absence of a Respondent’s brief to answer those issues. An Appeliant is therefore not automatically entitled to judgment in an appeal simply because the Respondent/s in the appeal opted, neglected or failed to file the Respondent’s brief of argument. Before such an Appellant can or is entitled to succeed or win an appeal, he had the legal duty to demonstrate in the submissions in support of appeal, and that of the court to consider and be satisfied that the appeal is sustainable in law’ An Appellant must succeed or as the case may be fail on the merit and sustainability of the submissions contained in his brief of argument and the mere absence of the Respondent’s brief of argument would not affect or change that position. See: AKAS V. MANAGER (2001) 8 NWLR (715) 436 at 442, SOFALAHAN v. SOFOLAHAN (1999) 10 NWLR (621) 86, OKONGWU V. NNPC (1989) 4 NWLR (115) 296, ECHERE v. EZIRIKE (SUPRA) also reported in (2006) 12 NWLR (994) 386.
So I would consider the issues submitted by learned Counsel for the Appellant for determination in the appeal and the submissions made thereon and then determine whether the appeal is sustainable in law.
At pages 3-4 of the Appellant’s brief of argument the following issues, 3 of them, are said to call for determination in the appeal:-
“Issue 1
(a) Whether the learned trial Judge was tight in awarding the sum of N650,000.00 (Six hundred and Fifty thousand Naira) less N70,000.00 (Seventy thousand Nsira to the plaintiff having regard to the pleadings and the evidence adduced before him- (Grounds 1 & 2).
Issue II
(a) Whether there was any contradiction or material contradiction between the testimonies of DWI and DW2 as to render them incapable of being believed. (Ground 3).
Issue III
(a) Whether the finding by the learned trial Judge that the sum of N220,000.00 (Two hundred und
twenty thousand Naira) admitted by the defendant only forms part of the amount contained in Exhibit C is not speculative contradictory, perverse and contrary to the pleadings and evidence before the court (Ground 4).
In his argument of the issue l, learned Counsel had referred to and set out paragraphs 10 respectively of the statement of claim and statement of defence and said that the Appellant had denied the claim by the Respondent. That he also set out a portion of the High court judgment where it found that the Appellant had admitted the supply of 1000 kg. of meat from the Respondent at the price of N220.00 per kg. and contended that by the finding, the claim by the Respondent for the sum of N650,000 automatically failed. According to the learned counsel, it is a contradiction and a perverse finding for the High court to later use Exhibit ‘C’ to enter judgment for the Respondent, citing the cases of ONU V. ODU (2006) ALL FWLR (328) 691 at 715 and NKABO v. OBIANO (1997) 5 SCNJ. 33 at 54 on what amount to a perverse finding. He said in law, a court cannot approbate and reprobate at the same time and that it amounted to an approbation and reprobation for the High Court to make a finding confirming the averments in paragraphs 10 and 22 of the Appellant’s statement of defence and then make a u-turn granting the claim of N650,000.00 by the Respondent on the same head of claim.
On the issue 2, it was submitted by learned Counsel that contrary to the finding by the High court, there was no material contradiction between the evidence of DW1 and DW2 as to where Exhibit ,C’ was made. After setting out portions of the evidence of the two witnesses which was said to have been used by the High court as contradiction, he contended that the essence of the evidence was to show that Exhibit ‘C’, was made at the police station by DW2 under duress and that it was not voluntary.
Reliance was placed on the statement in the case of NWOKORO v. ONUMA (1999) 9 SCNJ 63 at 75-6 and it was argued that the evidence of the witnesses is one as to where the Exhibit ‘C’ was made and the circumstances under which it was made. Further that the document, Exhibit ‘c’ was said to be of no probative value since Appellant was forced to make it by the police. It was then submitted by learned Counsel that the portions used by the High Court as contradictory are not material facts but merely collateral facts.
On the last issue 3, the learned Counsel had submitted that there was no evidence before the High Court that the sum of N220,000.00 admitted by the Appellant was part of the debt of N650,000.00 claimed by the Respondent. He referred to a portion of the High Court judgment on the point and said that it was speculative, contradictory, perverse and contrary to the pleadings before that court. The submissions made at the beginning of issue 1 summarized earlier were repeated on this issue and it was maintained that the finding by the High Court that the N220,000.00 was part of the sum claimed by the Respondent was speculative and not borne out by evidence led before that court. The cases of STATE V. AIGBANGBEE (1988) 3 NWLR (84) 548 at 577 and BRAIBE v. STATE (1997) 5 SCNJ. 178 at 185 were cited as authorities that a court of law should not speculate but act on facts and evidence placed before it.
In conclusion, learned Counsel urged us to allow the appeal and set aside the judgment of the High Court because the findings are contradictory, speculative, perverse and have occasioned a miscarriage of justice.
As may be recalled, the learned Counsel had argued that it was contradictory and perverse for the High courts have made a finding that the Appellant had admitted owing the sum of N220,000 and then later use Exhibit ‘C’ to enter judgment for the sum of N650,000 claimed by the Respondent.
For full appreciation of what the state of the pleadings in respect of the sums claimed by the Respondent, that admitted by the Appellant and the findings of the High Court thereon, it is expedient to set out the relevant portions thereof. The Respondent had made the following averments in his statement of claim:-
3. Between 1996 and 1999 the plaintiff at the requests of the Defendant und his partner Dr. Samuel Imande both trading as Moneyworth Meut Products, sold to them various measures of meat which they made some payments leaving an outstanding balance of N850,00.00 as unpaid prices due to the plaintiff.
4. As the sum of N850,000.00 was still outstanding in favour of the plaintiff the defendant broke up the joint business with his partner Dr. Sumuel Imande under moneyworth meat products and accordingly informed the plaintiff.
5. The plaintiff made several demands for immediate payment of the debt of N850,000.00 from the defendant and his former partner being the outstanding unpaid prices for the meat supplied to them. The defendant and his colleague asked for more time to arrange for payment.
6. Upon further demand when the defendant and his colleague failed to fulfil their promises to the plaintiff, the defendant together with Dr. Imande agreed to bear the liability equally as they have shared the assets of the company, and each of them to pay N425,000.00 severally to the plaintiff, 7. Whilst the sum of N425,000.00 remained outstanding against the defendant, the defendant personally pleaded with the plaintiff to supply himwith more meat in order to meet huge demands from the defendant’s customers.
And that he (defendant) would pay the outstanding N425,000.00 debt from a contract money he was expecting from the Benue State Government.
8. After much pleading by the defendant, the plaintiff took the defendant to the MFCT Abattoir where the defendant further reassured the plaintiffs colleagues/customers about his (defendant’s) preparedness to pay promptly immediately after supplies.
9. Based on the defendant’s reassurances in paragraph 8 above the plaintiff collected more meat from his colleagues on credit and on various occasions sold same to the defendant at the defendant’s requests at the rate of N220 per kilogram-
10. As at 8/10/99 the defendant has collected 2955kg.of meat in excess valued at N650,100.00 which remained unpaid.
14. Subsequently the defendant approached the plaintiff to settle the matter amicably. In connection to this und in the presence of plaintiffs customers at MFCT Abattoir the defendant along with Moses Onyilokwu promised to pay the plaintiff the sum of N650,000.00 for the second debt beginning with N200,000.00 on or before 3l-07-2000 and liquidate the final sums from the money he was expecting from Benue State Government The written undertaking made by defendant is hereby pleaded.
23. WHEREOF the plaintiff claims damages against the defendant as follows:-
i. N425,000.00 being the defendant’s part of the overdue N850,000.00 owed to the plaintiff by the defendant and his business partner under the trading name of Moneyworth Meat Products as unpaid prices of meat sold to the defendant
ii. N650,000.00 being an paid prices and value of meat supplied and sold to the defendant at the defendant’s personal request, alone.
iii N100,000.00 being cost of engaging the services of solicitors by the plaintiff to recover the debt.
iv. N500,000.00 as exemplary and aggravated damages
v. 20% interest rate per annum on the total sum claimed from 6/11/2000 till judgment and thereafter at 10% until the final sum is liquidated”
The relevant averments of the Appellant’s statement of defence are paragraphs 4, 7, 10, 15, 22 which are as follows:-
“4. The defendant denies paragraph 3 of the statement of claim to the extent that he paid for all the measures of meat collected under Moneyworth Meat Products and he is not indebted at all to the plaintiff in respect of any such transaction.
7. The defendant denies paragraph 6 of the statement of claim and puts the plaintiff to the strictest proof of same and further avers that there was no assets shared between him and Dr. Imande and equally no liability taken by them in respect of any company as he has also at no time agreed with Dr. Imande or any one to pay N425,000,00 or any one jointly or severally to the Plaintiff.
10. The defendant denies paragraph 10 of the statement of claim to the extent that the total volume of the meat he collected from the plaintiff is N1,000 kg. at the rate of N220.00 per kg’ amounting to N220,000.00 only.
15. The defendant denies paragraph 14 of the statement of claim and states that he und Moses Onyilokwu did not make any promise when they visited MFCT Abattoir on the 2nd of August, 2000, which was the only time they visited the Abattoir, and made no promise to pay the sum of N650,000.00 or any sum of all to the plaintiff and no undertaking was written threat as the only undertaking is the one he wrote under duress on 3/7/2000 at the police station.
22. The defendant avers that the plaintiff supplied him 1,000 kilogrammes of beef worth the sum of N220,000.00 sometime around October’ 1999 which he (defendant in turn supplied the entire
quantity to Nicon Hilton Hotel Abuja”‘
It is clear from the above state of the pleadings by the parties, the Appellant had clearly and unequivocally in the paragraphs 10 and 22 of the statement of defence, admitted, owned up or accepted the fact that he owed or was indebted to the Respondent to the tune of N220,000 for the meat supplied to him sometime around October 1999. It was in respect of this state of the pleadings that the High court in its judgment, particularly the portion set out in the Appellant’s brief, which is at page 222 of the record of appeal had stated thus:-
“In this regard, since the defendant has admitted by paragraph 10 and 22 of the statement of defence and in his oral testimony that he owes the plaintiff the sum of N220,000.00 in respect of 1,000 kg. of meat supplied at the rate of N220.00, N220.00 per kg. out of which the defendant has already paid the plaintiff, N70,000.00 on 18/3/2002 during the process of settlement as admitted by both parties in their oral testimony assist is trite law that facts admitted need not be proved by operation of section 75 of the Evidence Act.”
The plain import of the above statement or finding by the High Court is that since the Appellant had admitted owing the sum of N220,000 to the Respondent out of the total sum claimed by the latter in the suit there was no need for the Respondent to prove same, i.e. the sum admitted. The High Court relied on Section 75 of the Evidence Act for that position which provides:-
“75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by the pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
From these provisions, unless a court in its discretion provided for in the proviso, requires or calls on a party to prove fact admitted otherwise than by such admission, by the rules of pleadings, an admitted fact in pleadings does not require further proof in civil proceedings. In the case of DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392 at 405, the erudite Karibi-Whyte, JSC had concisely stated the law that:-
“It is an elementary rule of pleading that what has been admitted requires no further proof.”
In addition, this Court in the case of AKIBU v. ODUNTAN (1992) 2 NWLR (222) 210 at 226-7 had restated the position thus:-
“Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not Joined issues which make proof unnecessary.”
See also:
NWAKAMA V. MILITARY ADMINISTRATOR, ABIA STATE (1995) 4 NWLR (388) 185 at 187,
UNITED NIGERIA INSURANCE V. UNIVERSAL COMMUNICATIONS & INDUSTRIES CO. (1999) 3 NWLR (593) 17 AT 25,
GABARI V. ILORI (2002) 14 NWLR (786) 78 at 100.
The Respondent had in paragraph 10 of the Statement of claim set out above stated that as at 8/10/09, the Appellant had collected 2955 Kg. of meat in excess of N650,000.00 which remained unpaid.
The Appellant, as seen in his paragraphs 10 and 22 of the statement of defence admitted that he collected meat from the Respondent worth N220.000.00 sometime around October, thereby unambiguously and positively admitting part of the sum claimed by the Respondent at the stage of pleadings. As a result there was no dispute about that fact as far as the Appellant was concerned and so there was no duty and the need for the Respondent to prove that aspect or part of the claim by the elementary rules of pleadings’ for that reason’ the High Court was right in its finding or statement that under the law, because the Appellant had clearly and unequivocally admitted owing the Respondent’ the sum owed or mentioned in the statement of defence’ there was no need for further proof of same. In such situations where a defendant admits in his pleadings, part of a sum asserted by the plaintiff to be owed by him, depending on the particular circumstances of the case’ the court may at its discretion, enter judgment in the sum admitted in favour of the plaintiff and then proceed with the trial of the disputed pari of the sum claimed.
This is the position enunciated by the Supreme Court in the case of MOSHESHE GENERAL MERCHANT LTD. V. NIGERIA STEEL PRODUCTS LTD. (1997) 1 NWLR (55) 110 AT 120 where it said:-
“Where, as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant admits owing part of this sum, no difficulty will or should arise in the court entering judgment for the sum admitted leaving the balance to be contested. Yet the admission in such a case is u solemn declaration of indebtedness of the defendant to the plaintiff, in the sum admitted for the purpose of the reminder of that action.”
Order 30, Rule 3(1) of the Civil Procedure Rules of the High Court have made provisions on admissions made by parties in their pleadings which are in line with provisions of Section 75 of the Evidence Act that a fact admitted by the parties to a case in their pleadings requires no further proof. The Rules speak for themselves and are this:-
“3.-(1) Where admissions of fact ate made by a party either by his pleadings or otherwise, any other party may supply to the Court for such judgment order as upon those admissions he may be entitled to without waiting for the determination of any other question between the parties and the Court may give such judgment, or make such order, on the application as it thinks just”
The record of the appeal do not show that either before or in the judgment, the High Court had entered judgment for the sum admitted in the pleadings by the Appellant in favour of the Respondent as it had the discretion to do in line with the authorities cited on the point, what the record of the judgment of the High court shows is that after stating the law that what the Appellant admitted in his paragraphs 10 and 22 of the statement of defence required no further proof, it proceeded to consider the evidence adduced by the parties in respect of the whole sum of
N650,000.00 claimed by the Respondent against the Appellant including the part admitted in the statement of defence by the Appellant. It found based on the oral evidence of the Respondent and Exhibit ‘C’ that the latter had proved that the said whole sum was owed to him by the Appellant on the balance of probabilities. Let it be noted that by the statement or finding that the Appellant owed a portion or an amount smaller than that claimed by the Respondent did not put an end or finally determine the claim by the Respondent for the larger sum pleaded in the statement of claim. As seen in the case of MOSHESHE GENERAL MERCHANT LTD. V. NIGERIA STREEL RPODUCT and Order 30. Rule 3(1) (supra), the High Court could enter judgment for the sum admitted and proceed with the trial of the contested balance or portion of the sum claimed by the Respondent. It is therefore not contradictory or approbation and reprobation by the High Court to after the finding on the admission by the Appellant of part of the sum claimed by the Respondent to proceed to determine the contested part. It is not in doubt that the claim by the Respondent, against the Appellant as set out in paragraph 10 of the statement of claim is for the sum of N650.000 as at 8/10/99 and that the Appellant only admitted owing the sum of N220,000 for the meat he said he collected sometime in October 1999, the same period or time in the Respondent’s pleadings. Whether or not the Appellant had stated that the sum admitted was part of the sum claimed against him by the Respondent leaves no doubt whatsoever that since he did not admit but denied in his statement of defence that he owed the Respondent the whole sum claimed, the sum admitted being less and smaller than that claimed, is a portion or part of the latter sum. The High court in the circumstances acted on a firm terrain in law when it proceeded to determine the contested balance or part of the whole sum of N650,000.00 by considering the evidence laid before it on that sum in its entirety and making appropriate findings thereon. Because the finding on the sum of N650,000 was based on the evidence placed before the High Court which was properly assessed, it cannot rightly be referred to as a perverse finding as defined in the case of ONU v. ODU (supra) cited by the learned counsel for the Appellant. The said finding by the High Court did not run counter to the evidence and pleadings, that Court has not been shown to have taken into account matters which ought not to have been taken into account or shut its eyes to the obvious matters which ought to have been taken into such account’ The Exhibit ‘C’ used by that Court to make a finding on the balance sum claimed by the Respondent in his pleading is relevant evidence admitted at the trial and so the High Court was entitled and in law had the duty to evaluate or assess it for the purpose of the proof tendered by the Respondent for his case.
In the result, I find no merit in the issue which I resolve against the Appellant.
The next issue 2 is on whether there was contradiction in the evidence of DW1 and DW2 as to where Exhibit ‘C’ was made by the Appellant. The portion of the High Court judgment complained about in this issue is at pages 223-4 of the record, also set in Appellant’s brief. It is thus:-
“From the testimony of DW2, it shows that DW1, his lawyer was not present when Exhibit ‘C’ was made, but DW1 in his testimony shows that, he (DW1) was present when the undertaking (Exhibit ,C’) was written by the defendant It, therefore appears that it is either DW1 or DW2 that lying or both.”
This remark by the High Court as can easily be seen, relates to whether the DW1 was present when the DW2 (the Appellant) made the statement Exhibit ‘C’ or when the Exhibit ‘C’ was written.
The remark does not relate to where the said Exhibit ‘C’ was written as stated by the learned counsel in the Appellant’s brief. The learned Counsel in the extract of the evidence of the two witnesses DW1 and DW2, he set out in the Appellant’s brief did not demonstrate that the evidence was not contradictory as to whether DW1 was present when Exhibit ‘C’ was written or that the High court used such contradiction in ascribing probative value to the said Exhibit.
Speaking generally, the law is that where contradictions are shown in the evidence of witnesses called by a party on the material facts he relies on in support of the position he asserts in a case, such evidence should, because it is not worthy of belief, not be believed and relied on by a court in deciding the facts in issue. Two or more pieces of evidence would be contradictory where they affirm the contrary or opposite of what the other(s) says or states. Pieces of evidence would be contradictory when they are in direct conflict, irreconcilable, inconsistent and totally against each other in their substance such that all of them cannot represent the truth of their content at the same time. Such pieces of evidence would be unreliable in the proof or in respect of the facts to which they relate and so the attitude of the courts has been to reject them. See:
ONUGBOGU V. STATE (1974) 9 SC. 1,
MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR 393,
YUSUF V. OBASANJO (2006) ALL FWLR (294) 387.
There is however a caveat to the above principle of law which is that it is only where or when the contradictions in the pieces of evidence are on material facts in issue in the case would they be disregarded by the court as unreliable. Where they only amount to minor discrepancies that do not touch or affect the substances of the facts they relate to, they are not material and would be ignored. This is because the absence of any discrepancy in the testimony of two or more witnesses called by a party would easily give the reasonable impression that such evidence is doctored, tailored and therefore the usual accompaniment of a concocted story since imperfection in human memory or reflection is quite normal. See:
SEGEDE V. BAMIDELE (2006) ALL FWLR (303) 308,
OLADELE V. STATE (1991) 1 NWLR (170) 708.
From the record of the evidence given by DW1 and DW2 as to whether the former was present when Exhibit C was written, there is contradiction since DW1 said he was present while the Appellant himself as DW2 said he was not present at the time Exhibit ‘C’ was written. The two pieces of evidence cannot be true at the same and so one version must be something other than the truth. The important thing in this appeal however in respect of Exhibit ‘C’ is not whether DW1 was present or not when it was written, but if such issue was used by the High court at all in the assessment of the evidence before it and ascribing the due value to each piece before arriving at its findings. I have stated before now that learned Counsel has not demonstrated in the record of the appeal that said contradiction in the evidence of DW1 and DW2 was as the basis of the reliance on Exhibit ‘C’ in the finding that by its contents, the Appellant had undertaken to pay the Respondent the amount stated therein. I can find no portion in the High court judgment which shows that that court had used and relied on such inconsequential point as to whether DW1 was present or not when Exhibit. C, was written as a reason for its finding on the said Exhibit. There is therefore no merit in the submissions by the learned counsel for the Appellant on the issue which on that ground, I resolve against the Appellant.
The last issue is whether the finding by the High Court that the sum of N220,000 admitted by the defendant forms part of the amount contained in Exhibit ‘C’ is not speculative, contradictory, perverse and contrary to the pleadings and evidence before it. It may be recalled that while considering issue 1, I had stated that sum claimed by the Respondent against the Appellant as at 8/10/99 was N650,000 for the meat supplied to him and that the latter had admitted only N220,000.00 for the meat supplied to him by the Respondent sometime in October 1999. In effect, the Appellant only acknowledged and agreed that out of the sum claimed by the Respondent, only N220,000 was owed by him out of which, the evidence placed before the High court showed, he had paid the Respondent N70,000.00. So if the Appellant had admitted only N220.000 out of the N650,000 claimed by the Respondent, because it is less or smaller than the sum claimed by the Respondent, the amount admitted by the pleadings of both the Appellant in paragraphs 10 and 22 of the statement of defence and Respondent’s paragraph 10, as well as the evidence of both the Appellant particularly at page 205 of the record of appeal and the Respondent, was part of the amount claimed by the latter which was found proved by the High Court. So by the pleadings and evidence placed before the High court, the sum of N220,000.00 is undoubtedly a portion of the sum claimed by the Respondent and therefore a part of it since it is less than what was claimed. The statement by the High court to that effect in its judgment is therefore borne out by the pleadings and evidence of the Appellant in particular and so is not speculative, contradictory or perverse. The cases cited by the learned counsel for the Appellant on speculation by a court are not applicable and offer no help to his submissions on the issue.
Without hesitation, I find no merit in the submissions on the issue and resolve it against the Appellant.
In the final result, this appeal is wanting in merit and so it fails. I dismiss it accordingly and award costs assessed at N50,000.00 in favour of the Respondent.
PAUL ADAMU GALINJE. J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Garba JCA, and I agree that this appeal lacks merit and should be dismissed. I accordingly dismiss same and endorse the order of cost made therein.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Judgment of My Lord MOHAMMED LAWAL GARBA, JCA, just delivered and I agree with My Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me. I abide by the consequential order on costs.
Appearances
Dr. J. Y. Musa, leading E. E. Eko, M. C. Sojachukwu, J. O. Musa and S. Omale, Esq.For Appellant
AND
Respondent absent and not represented, but served on the 10/1/11 through Counsel.For Respondent
