- MUHAMMED AMINU ADEMOLA & ORS v. SEVEN-UP BOTTLING COMPANY PLC
In The Court of Appeal of Nigeria
On Thursday, the 16th day of January, 2003
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
- MR. MUHAMMED AMINU ADEMOLA
2. MR. AKEEM OLAJUWON
3. MRS. ALICE AYENI
4. MR. OLALEKAN MUHAMMED
5. MR. OLAJUMOH AKANDE – Appellant(s)
SEVEN-UP BOTTLING COMPANY PLC – Respondent(s)
MAHMUD MOHAMMED, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Makeri, J. of the Kaduna State High Court of Justice sitting at Kaduna and delivered on 8/6/2001.
In an action instituted by a writ of summons, the appellants as plaintiffs before the trial court in paragraph 32 of their amended statement of claim dated 2/12/97 claimed against the respondent which was the defendant in the action as follows:
“32. WHEREOF the plaintiffs claim various against the defendant followings:
(a) A declaration that the plaintiffs are the winner of winning No. 228 as published by the New Nigerian Newspapers Ltd. Northern edition of No. 8,986 of Friday June 4th, 1993 at (last) page 16.
(b) A declaration that the plaintiffs no. 228 as published by the New Nigerian Newspaper Ltd. on it’s newspaper on Friday June, 4th 1993 at page sixteen is the winning number.
(c) A declaration that the first, second, third, forth and fifth plaintiffs having found No. 228 under the crown corks of the product of the defendant are the winner of the amount there under in the sum N225,000.00, N75,000.00, N200,000.00, N25,000.00, N200,000.000 (Seven Hundred and Twenty Five Thousand Naira.
(d) An order that the defendant should pay the sum of N725,000.00 (seven hundred and twenty five thousand naira) jointly and severally to the plaintiffs as variously appear under their respective crowns/corks.
(e) A declaration that the plaintiffs are entitled to claims of various amount of money as it appears under the crown/corks of the product of the defendant with No.228 being the winning number as published by the New Nigerian Newspapers Ltd. on the 4th June 1993.
(f) A general damage of N20,000.00 (twenty thousand naira) for breach and repudiation of the said contract and loss of benefit of using the sum of N725,000.00 (seven hundred and twenty five thousand naira).”
After the exchange of pleadings which suffered a number of amendments between the parties before final settlement, the case was heard by the trial court. In the course of the hearing, all the 5 appellants as plaintiffs testified in support of their respective claims and also called two other witnesses. A number of documents were also tendered and received in evidence in support of the plaintiffs’ case. The respondent, as the defendant on its part called only two witnesses and tendered one document which was received in evidence as exhibit 7 in its own defence to the action. In its judgment delivered on 8/6/2001, the trial court after formulating an issue which states:
“The issue for determination to my mind from the whole evidence is whether plaintiffs have proved by credible evidence that the winning number in their possession and as advertised in the New Nigerian Newspaper is the actual number declared by the defendant to be the winning number.”
proceeded and resolved the issue against the plaintiffs, now appellants by holding that the reliefs claimed had not been proved by evidence as required by law and therefore dismissed the action. The learned trial Judge reasoned that the appellants having on their own evidence failed to prove that the number 228 in their possession was the winning number declared and published on 4/6/93, the claims of the appellants must fail in their entirety as questions relating to contract with the respondent, agency between respondent and the New Nigerian or whether the New Nigerian Newspaper produced and tendered in evidence was from proper custody no longer arise for determination in the case.
Dissatisfied with the judgment of the trial court, the 5 plaintiffs who are now the appellants have appealed against it by the notice and grounds of appeal dated 15/6/2001. In all, there are 7 grounds of appeal in the notice of appeal from which the learned counsel to the appellants distilled 6 issues for determination as follow:
“1. Whether the appellants have failed to discharge the onus of establishing the claim endorsed in the statement of claim after giving evidence in accordance with the pleadings before the court.
2. Whether there was enough evidence to establish agency between the respondent (as principal) and the New Nigerian Newspaper Limited (as agent) before the trial court.
3. Whether by the proven fact before the trial court, a valid contract has not been established between appellants and the respondent?.
4. Whether it is appropriate for the trial court to use an abandoned amended statement of claim.
5. Whether it is proper for the trial court to change issues which were formulated from parties pleadings/case and suo motu created different issues not emanated from the plaintiffs’ case.
6. Whether it is proper for court to rely on a document which was not an exhibit before it, but only shown to the court for perception.”
These 6 issues as formulated in the appellants’ brief of argument were duly adopted by the respondent in the respondent’s brief of argument except for issue No.4 which was reframed as follows:
“4. Whether the reference by the learned trial Judge to the amended statement of claim dated 5/10/93 in his judgment has occasioned a miscarriage of justice sufficient to vitiate the judgment of the Honourable trial court.”
Taking into consideration that the judgment of the trial court now on appeal merely dismissed the appellants’ claim on the ground that the claims were not proved by evidence, it is necessary, in my view to carefully examine the issues for determination raised in the respective parties’ briefs of argument in order to determine whether or not the issues are really issues in the real sense and relate to the grounds of appeal filed by the appellants.
Starting with the respondent’s brief of argument, it is trite law that issues formulated in the appellants’ brief must be based on the grounds of appeal filed by the appellants or at least recast the issues by giving them a slant favourable to the respondent’s point of view but without departing from the complaint raised by the appellants’ grounds of appeal. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543 – 544. Although in the present appeal, the respondent which has no cross-appeal rightly adopted all the issues formulated in the appellants’ brief of argument except issue No.4, the attempt by the respondent to recast issue 4 by giving it a slant favourable to its point of view, has failed woefully because that issue as recasted in the respondent’s brief does not arise from any of the grounds of appeal filed by the appellants and consequently incompetent. This is because the appellants in their issue No.4 and ground 5 from which the issue arose, were not complaining of any denial of fair hearing or miscarriage of justice as now being raised by the respondent. The issue being incompetent is accordingly hereby struck out. See Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) at 208. Going back to the appellants’ brief of argument, their learned counsel appeared to have worked on the misapprehension that every possible slip in the judgment of the trial court raises an issue for determination. This is however very far from the real position of the law. This is because an ‘issue’ in an appeal must be a proposition of law or fact so congent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court. Indeed,apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 580. In determining whether a ground of appeal or a fact in dispute raises an issue for determination, the test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellants, if decided in favour of the appellant, will result, on a verdict in his favour. See Standard Consolidating Dregging Construction Company Ltd. v. Katonecrest Nigeria Ltd. (1989) 5 NWLR (Pt. 44) 791 at 799.
In the present case, close examination of issues 4, 5 and 6 in the appellants brief shows quite clearly that they are not really issues for determination in this appeal, as the resolution of any of the issues one way or the other, will not lead to judgment in favour of either of the parties to the appeal. In other words, the decision whether it was appropriate for the trial court to use abandoned statement of claim without showing how that alleged abandonment affected the case of the appellants, will not be of any use to the parties in this appeal.
Similarly, the resolution of the question of whether or not it was proper for the trial court to change issues formulated by the parties without deciding how that act of the trial court affected the case of the appellants will equally be of no use to the parties. Infact, issue 6 in the appellants brief apart from not being a real issue in this appeal is also purely academic as it does not specifically relate to the case now on appeal and this court had been specifically prohibited from wasting its valuable time in resolving such issues. See Union Bank of Nigeria Ltd. v. Edionseri (1988) 2 NWLR (Pt. 74) 93 at 105 and Nwobosi v. A.-G., Ltd. (1995) 6 NWLR (Pt.404) 658 at 681. Thus, issues 4, 5 and 6 in the appellants’ brief of argument having collapsed the same are hereby struck out.
Issue No.3 in the appellants’ brief of argument earlier quoted in this judgment is again reproduced hereunder for scrutiny. It reads:
“3. Whether by the proven fact before the trial court a valid contract has been established between the appellants and respondent?.”
This issue relates to ground 3 of the grounds of appeal which states:
“Learned trial Judge erred in law when he held that the appellants ‘had woefully failed to establish the existence of such a valid contract with the defendant’ when the appellants had met all the conditions laid down on the promotion as contained in New Nigerian Newspaper of 2/4/93 exhibit 1(a) and exhibit 3.”
Having regard to the fact that the main reason for the dismissal of the appellants’ claim was not because they failed to establish a valid contract with the respondent but because they had failed to prove by evidence that they were holders of valid winning numbers under the crowns of the respondent’s specified products, both the ground of appeal and the issue arising from it are certainly not available to the appellants in the determination of this appeal. This is because the appellants had to prove that they were holders of the winning numbers first before the need to determine the existence of any contract between them and the respondent could arise. This was clearly stated in the judgment of the trial court which declined to proceed to determine other ancillary issues like the one on contract which had nowhere to hang in the absence of proof that the appellants were holders of winning numbers.
Like pleadings to a litigation between the parties, the issues formulated in an appeal are intended to accentuate the real issues for determination before the court. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 283.
Therefore, for not being a real issue for determination in this appeal, appellants’ issue No.3 is hereby struck out.
With regard to appellants’ issue No.2, it reads:
“2. Whether there was enough evidence to establish agency between the respondent (as principal) and the New Nigerian Newspapers Limited (as agent) before the trial court.”
This issue is also not a real issue for determination in this appeal because the trial court did not go deep into it in its judgment other than stating that the question of agency was also not proved as the result of the failure of the appellants to prove that they were holders of winning numbers of the respondent. Furthermore, the resolution of this issue either way will have no bearing whatsoever on the appellants’ appeal as the New Nigerian Newspapers had nothing to do with the present appeal. See Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 at 290 – 291. Accordingly, for not being a real issue for determination in this appeal, the appellants’ issue No.2 is also hereby struck out.
Thus, with all but one of the issues formulated in the appellants’ brief of argument for the determination of this appeal having collapsed, the only issue remaining alive is issue No. 1. Infact, taking into consideration that the judgment of the trial court now on appeal merely dismissed the claims of the appellants on the main ground that the appellants as plaintiffs had failed to discharge the burden of proof placed upon them by law to establish by their evidence that the number 228, in the crowns of the respondents in their possession was the actual winning number on 4/6/93 as published in the New Nigerian Newspapers of the same date, the only real issue for determination in this appeal is the appellants’ issue No. 1 which states:
“Whether the appellants have failed to discharge the onus of establishing the claim endorsed in the statement of claim after giving evidence in accordance with the pleadings before the court.”
Based on the pleadings exchanged between the parties in this appeal and the evidence on record before the trial court, the facts of this case that generated the dispute between the parties are quite simple. The respondent is a company in Nigeria engaged in bottling for sale of non-alcoholic drinks, one of which is 7-up drink. The respondent had in 1993 organised a consumer promotion competition titled 7-up Naira Mania by which a consumer was required to look under the crowns of 7-up products to find a number and a prize. A daily winning number on each weekday was being announced by the respondent. The five appellants had in their possession crowns of the respondent’s products bearing the No. 228 which the appellants claimed was the winning number of the promotion published by the New Nigerian Newspaper of 4/6/93 and, therefore, claimed the sum of N725,000.00 from the respondent. The respondent on its part denied the appellants claims and asserted that the number 228 in possession of the appellants was not the winning number in the 7-up Naira Mania Promotion exercise and therefore refused to honour their claims, thereby resulting in the appellants going before the trial court to seek for various declaratory reliefs and the various sums of money the appellants claimed to have won from the respondent. The appellants’ action was dismissed, hence, this appeal.
In support of the only issue for determination in this appeal, it was argued for the appellants’ that all the facts pleaded by them in their amended statement of claim had been proved uncontrovertedly by the evidence called by the appellants, thereby discharging the onus placed on them. The case of Atunwa v. Ladenika (1998) 7 NWLR (Pt. 557) 221 at 228 was relied upon in support of this argument. That the respondent having admitted paragraphs 3, 4, 6 and 7 of the appellants amended statement of claim in its paragraphs 2, 4 and 5 of the amended statement of defence, there was no burden on the appellants, on the authority of the case of Achimugu v. Minister, F.C.T. (1998) 11 NWLR (Pt. 574) 467 at 477, to prove the facts contained in their amended statement of claim. In other words, as no specific denial that the number 228 was published among the winning numbers on 4/6/93, there was no burden on the appellants to prove what was deemed admitted and therefore the appellants had discharged the burden of proof placed on them.
For the respondent however, it was contended that relying on the same case of Atunwa v. Ladenika (1998) 7 NWLR (Pt. 557) 221 at 228, that the appellants by their statement of claim and the evidence led before the trial court had failed to prove their case. That having regard to the nature of the claims of the appellants involving a number of declaratory reliefs, the onus was on the appellants to prove their case irrespective of any admission made by the respondent as was stated by the Supreme Court in the case of Vincent Bello v. Magnus Iweka (1981) 1 SC 101 at 102. Learned counsel to the respondent concluded his argument in the respondent’s brief of argument on this issue by stressing that the appellants having failed to discharge the burden of proof placed upon them by law in proving their case, they were not entitled to judgment.
The present issue no doubt is based entirely on the discharge of the burden of proof. This being a civil case, the proof is based generally on the preponderance of evidence as explained by Fatayi Williams, J.S.C. (as he then was), in the case of Mogaji v. Odofin (1978) 4 SC 91 at 93-94 where he said:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferred to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it, if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff claim will be dismissed.”
The principle laid down above by the Supreme Court was what the trial court exactly applied in the present case where the appellants’ claims were based entirely on the fact that the number 228 contained in the crowns of the respondent’s products in their possession was the winning number of the respondent’s 7-up naira Mania promotion exercise published in the New Nigerian Newspaper of 4/6/93.
However, by their own evidence contained in the copy of the New Nigerian Newspaper of 4/6/93, the winning number of the respondent’s promotion exercise shown at page 16 of the paper was 182 for Friday, 4th June, 1993. Although, the previous winning numbers of the promotion exercise published on the same page of the paper below the 182 winning number for that day also shows that number 228 was one of such previous winning numbers, the respondent having specifically denied that fact, the appellants ought to have at least called an official of the New Nigerian Newspapers to confirm to the court that the number 228 was among the winning numbers given to it for publication as one of previous winning numbers by the respondent. The need for the appellants to have done so became particularly more obvious on the fact of contrary evidence brought by the respondent in exhibit 7 showing all the previous winning numbers from the first week to the ninth week of the exercise without the number 228 among the previous winning number, when 182 was published on 4/6/93 as the winning number.
Furthermore, even from the evidence of the first appellant, Mr. Muhammed Aminu Ademola under cross-examination at page 46 of the record of this appeal where he said:
“Advertisement of Seven Up Naira Mania exhibit 1, is New Nigerian 4/6/93 at page 16 we are claiming No. 228 but the exhibit has 182 as the winning number. My assertion with regards to exhibit 1 on the winning number, is wrong.”
had confirmed clearly that the case of the appellants as plaintiffs before the trial court had already collapsed even before the 1st appellant concluded his evidence before the trial court. The judgment of the trial court 8/6/2001 dismissing the appellants’ case was therefore merely declaring the obvious.
The appellants in this case seem to have relied very heavily on the fact that the respondent had admitted the publication contained on page 16 of the New Nigerian Newspaper of 4/6/93 and therefore the appellants had no burden of proving what had been admitted.
The position of the law is indeed correct as stated in the appellants’ brief of argument that what has been admitted in a civil case needs no further proof as stated in Achimugu v. Minister, F.C.T (1998) 11 NWLR (Pt. 574) 467 at 477.
However, the appellants appeared to have lost sight of the exception in this state of the law where the claims of the plaintiff relate to declaratory reliefs as is the position in the present case.
The law in this respect is that court do not make declaration of right either on admission or in default of defence.
Where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by the evidence adduced by that party and not by admission in the pleadings of the defendant that he is entitled to such declaration. The necessity for this specific proof arises from the fact that the court has a discretion to grant or refuse the declaration and the success of a claimant in such an action, depends entirely on the strength of his own case and not on the weakness of the defence.
This is clearly in line with what Obaseki, J.S.C. (as he then was), said in Vincent Bello v. Magnus Iweka (1981) 1 SC 101 at 102:
“It is true as was contended before us by the appellant’s counsel that the rules of court and evidence relieved a party of the need to prove what is admitted. But where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence that he is so entitled.”
See also Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Akinola & Ors. v. Oluwo & Ors. (1962) WNLR 133 at 134; (1962) 1 SCNLR 352 and Elema v. Akenzua (2000) 13 NWLR (Pt. 683) 92 at 98-99.
Finally, the appellants in this case as plaintiffs having woefully failed to prove their case before the trial court, that court was quite right in dismissing their case. This appeal is therefore plainly without merit and the same is accordingly hereby dismissed with N5000.00 costs to the respondent.
ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother, Mahmud Mohammed, J.C.A. I agree with reasoning contained therein and the conclusion arrived thereat and adopt his reasoning and conclusion as mine. I have nothing further to urge other than dismiss the appeal and affirm the decision of the learned trial Judge.
I abide by all the consequential orders including the order as to costs contained in the lead judgment of my learned brother, Mahmud Muhammed, J.C.A.
JOSEPH JEREMIAH UMOREN, J.C.A.: I have read in advance the judgment of my learned brother, Mahmud Muhammed, J.C.A., just delivered. I agree with his reasoning and conclusion and I adopt them as mine. The facts have been well set out and I have nothing useful to add. I, too dismiss the appeal and endorse the order as to costs.
- A. Owolabi, Esq. For Appellant
- O. Ajibo, Esq. For Respondent