MUSA & ORS v. ALHASSAN
(2020)LCN/14828(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, December 21, 2020
CA/A/264/2015
RATIO
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES
In civil cases, proof of a matter is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1. The Claimant who asserts has the burden to prove or establish his case with cogent and credible evidence otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGHEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, HAUMA V. AKPA-lME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others. PER WILLIAMS-DAWODU, J.C.A.
JUDICIARY: DUTY OF THE JUDICIARY
The straight and all time answer to this issue is a sure and firm No. For all that the Judiciary as the third arm in the area of governance stands for and what it seeks to achieve through its administration of justice system, the delivery of substantial justice to all and sundry and given the objectives, purport and intendment of our laws, there is no doubt that an illegal transaction will not be enforced by the Courts. This is very basic and elementary. PER WILLIAMS-DAWODU, J.C.A.
CONTRACT: DUTY OF A PARTY CLAIMING ILLEGALITY IN CONTRACT
it is however trite that, a party as herein who has benefitted from a contract cannot evade, argue or wish away his obligation there under by relying on an allegation of illegality. The law is that for such illegality to avail the party if at all, it must be ex facie. See the case of W.C.C. LTD. V. BATALHA 2006 9 NWLR PT. 986 P. 595 where the apex Court stated as follows:
“The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case.”
See further the cases of UKAH & ORS V. ONYIA & ORS 2016 LPELR CA/E/295/2008, NASSAR V. MOSES 1960 LLR 170, GEORGE V. DOMINION FLOUR MILLS LTD. 1963 1 ANLR 71 and OGUNTUWASE V. JEGEDE 2015 LPELR-CA/EK/37/2014. PER WILLIAMS-DAWODU, J.C.A.
EVIDENCE: HOW IS ORAL EVIDENCE EVALUATED BY THE COURT
The law is trite that, where the entire evidence is oral as can be seen with respect to the Counter-claim, there being no documentary evidence, it is such that may necessarily involve demeanor and the determination of the credibility of witnesses and questions on demeanour of the witnesses are exclusively preserved for the trial Court. This Court did not have the privilege of watching and hearing the witnesses testify, for that reason, not in a position to determine the credibility of the witnesses. See the cases of CYPIACUS NNADOZIE & ORS. V. NZE MBAGWU 2008 LPELR-SC 249/2002. PER WILLIAMS-DAWODU, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
1. ALHAJI AMINU MUSA 2. ALHAJI SHEHU AHMADU 3. AHMADU INGI APPELANT(S)
And
IDRIS ALHASSAN RESPONDENT(S)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State Minna, by Hon. Justice Maria Sanda Zukoji delivered on July 12th 2012, which was entered in favour of the Respondent (the Plaintiff at the Court below) and reliefs 1 and 3 only therein were granted against the Appellants (the 1st, 2nd and 3rd Defendants at the Court below).
As garnered from the printed Record before this Court, the following facts briefly culminated into this appeal;
According to the Respondent, as a dealer in precious stones, he took some quantity of tamalin to the 1st Appellant who sells gold and precious stones to help him sell being his friend over time. The 1st Appellant invited the 2nd and 3rd Appellants that they are more into precious stones and will be able to clean the stones and determine the quality and quantity better. The Respondent too invited his friend one Umaru Saidu to represent him when all that will be done. After cleaning and weighing the stones at the private residence of the 1st Appellant, the 1st, 2nd and 3rd Appellants,
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along with Umaru Saidu informed the Respondent that the stones were 175 grams and all agreed at a sale price of Fifteen Million Naira to be remitted to the Respondent after all expenses would have been deducted. Some sums were remitted through bank cheques and Umoru to the Respondent but only the sum of Eight Million and Two Hundred Thousand in all. After several efforts to get the Appellants to pay the balance without success, the Respondent instituted the action at the Court below.
The Appellants particularly the 1st, denied any such transaction, that there was never a fixed sale price and that he was away to Senegal and therefore could not be held to account or pay the claimed outstanding balance. That, the Respondent handed over dealing with the stones to his friend Umaru Saidu when he was away to Senegal. Therefore, they had no idea how much the stones were eventually sold for.
The Respondent sought the following reliefs against the Appellants:
a. The outstanding balance of N6. 8Million Naira.
b. The sum of N152,000.00 being Hotel accommodation bill of Umaru Saidu from 3rd January, 2010 to 19th March 2010.
c. Interest at 10%
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from the date of Judgment and until the final judgment sum is liquidated.
Dissatisfied with the decision of the Court which was in favour of the Respondent as afore stated, the Appellants vide their Notice of Appeal dated August 14th, 2012 with Four (4) Grounds have approached this Court and seek that the appeal be allowed and the judgment of the Court be set aside.
Parties have in compliance with the Rules of this Court filed and exchanged their briefs of argument. The Appellants’ brief dated June 5th, 2018, settled by Ibrahim Angulu Esq., was filed on June 8th, 2018 and deemed properly filed and served on June 11th, 2018 while that of the Respondent dated January 17th, 2019, settled by Oluwole Olukunle Esq., was filed January 18th, 2019 and deemed properly filed and served on February 18th, 2000. At the hearing, the Respondent’s brief was deemed as argued even though put on notice of the hearing, there was no representation. The Appellant’s Counsel, Mr. Ibrahim Angulu adopted the Appellants’ brief and urged that the appeal be allowed.
The following Issues were submitted for determination by the Appellants:
1. Whether the Court can enforce an
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illegal transaction (Ground 4).
2. Whether the Respondents (sic) proved their case in the Lower Court to entitle them to judgment (Ground 1).
3. Whether the Appellants were entitled to judgment in the Lower Court in view of the admission of the respondent to the counter claimed amount of N885,000, and if so whether dismissal of the counter claim does not amount to a miscarriage of justice (Ground 2).
4. Whether a case can be said to be made out against the first Appellant despite the fact that no evidence was led as to his participation in the sale of the (Tamelin) Precious Store (sic) (Ground 3).
The Respondent adopted the issues by the Appellant and having carefully read the issues, the Court equally adopts same for a fair and just determination of this appeal.
SUBMISSION ON BEHALF OF THE APPELLANTS
Mr. Angulu Esq., learned Appellants’ Counsel submitted that, the transaction between the parties cannot be enforced as it is based on illegality as the Respondent has no license to mine precious stones or sell same and referred to Sections 20 and 44 (3) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
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That, it is illegal for anyone to mine precious stones without a licence. And that all the minerals in Nigeria are vested in the Federal Government and that only the National Assembly has the power to make laws in that regard. Further that, since the precious stones were the product of economic sabotage, the Courts had no jurisdiction and was wrong to have stated that the Appellants acquiesced as the act in question is economic crime not an irregularity.
He submitted that the Respondent failed to prove his case as the price the stones were sold for was never stated nor agreed only the asking price was. Therefore, the Court could not hold that the Respondent was short changed as it is not allowed to speculate and a miscarriage of justice was thereby occasioned on the Appellants. He cited in support the cases of AGHARUKA V. FBN LIMITED 2010 3 NWLR PT. 1182 and UZOR V. D.F. NIGERIA LIMITED 2010 15 NWLR PT. 1217 553. That, facts not pleaded go to no issue and cited the case of OMOWORARE V. OMISORE 2010 3 NWLR PT. 1180 58. He submitted that, the parties were unable to get the asking price of fixed for the stones.
He contended that the 1st Appellant
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proved his counter-claim and therefore was entitled to judgment as the Respondent admitted the debt of N885,000,000.00 to the 1st Appellant and there was no need to call witnesses and cited the case of TAIWO V. ADEGBORO 2011 11 NWLR PT. 1259 562. Further that, the Respondent’s statement to the effect that the Appellants should deduct what was due to them from the sale price only was a reference to the debt of N885,000,000.00. He asserted that, the 1st Appellant was not around during the time of sale of the stones, could therefore not be responsible for the sale and should not be held accountable for the money in that respect. In conclusion, he urged that the appeal be allowed.
SUBMISSION ON BEHALF OF THE RESPONDENT
The learned Respondent’s Counsel, Mr. Olukunle Esq., argued that the issue before the trial Court was for recovery of outstanding balance of money in the sum of N6,800.000 (Six Million, Eight Hundred Thousand Naira) only and that the Appellants did not plead the illegality of the contract. In support he cited the case of CHIDOKA V. FIRST CITY 2012 7 SCNJ 452. Further that, a person is not allowed to complain against an irregularity which
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was accepted, waived or acquiesced and in support cited the case of OGBONNA V. A-G IMO STATE & OR 1992 1 NWLR PT. 220 647.
He submitted that, the Respondent proved his case by preponderance of evidence and cited in support the cases of MOGAJI V. ODOFIN 1978 4 SC 93 and OWOSHO V. DADA 1984 7 SC 49. He argued that all the Appellants were involved as business partners since it was the 1st Appellant that introduced the 2nd and 3rd Appellants that they were more experienced in precious stones than him and that they all together with the said Umaru Saidu, jointly fixed the selling price at N15,000,000.00.
The learned Counsel contended that the 1st Appellant failed to prove his Counter-claim which is an independent action from the Respondent’s. That, the Respondent did not admit indebtedness to the 1st Appellant who therefore had to establish his claim and in support cited the case of TEWOGBADE V. AKANDE 1968 NMLR 404. Further that, the Respondent’s claim to the effect that he had paid back the loan was not challenged by the 1st Appellant and so should hold and in support cited the cases of MUDA ANWOYI V. SHODEKE 2006 6 SCNJ 1, OLODO V. JOSIAH 2010
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12 SCNJ PT. 2 368 and ADENIJI V. OROGA ALL FWLR PT. 324 1839. He contended that there were many contradictions in the Appellants’ evidence as opposed to the Respondent’s that was more credible to establish his case and cited in support the case of MOGAJI V. ODOFIN supra. In conclusion, he urged that the appeal be dismissed.
THE POSITION OF THE COURT
In the determination of this appeal, I shall take Issue 1 first and consider Issues 2, 3 and 4 together. From the Record before this Court and the brief facts garnered as earlier related, the main issue herein stems from the Respondent’s demand for the balance of N6,800,000.00 which was adjudged by the Court below to be his outstanding balance from the Appellants from the sale of the precious stones handed over to the 1st Appellant together with the 2nd and 3rd Appellants.
In civil cases, proof of a matter is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1. The Claimant who asserts has the burden to prove or establish his case with cogent and
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credible evidence otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGHEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, HAUMA V. AKPA-lME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others.
ISSUE 1
1. Whether the Court can enforce an illegal transaction.
The straight and all time answer to this issue is a sure and firm No. For all that the Judiciary as the third arm in the area of governance stands for and what it seeks to achieve through its administration of justice system, the delivery of substantial justice to all and sundry and given the objectives, purport and intendment of our laws, there is no doubt that an illegal transaction will not be enforced by the Courts. This is very basic and elementary.
9
Home to the instant appeal, it is however trite that, a party as herein who has benefitted from a contract cannot evade, argue or wish away his obligation there under by relying on an allegation of illegality. The law is that for such illegality to avail the party if at all, it must be ex facie. See the case of W.C.C. LTD. V. BATALHA 2006 9 NWLR PT. 986 P. 595 where the apex Court stated as follows:
“The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case.”
See further the cases of UKAH & ORS V. ONYIA & ORS 2016 LPELR CA/E/295/2008, NASSAR V. MOSES 1960 LLR 170, GEORGE V. DOMINION FLOUR MILLS LTD. 1963 1 ANLR 71 and OGUNTUWASE V. JEGEDE 2015 LPELR-CA/EK/37/2014.
It can be seen from the Record that, the Appellants did not comply with the condition as stated by the apex Court in the circumstance. The Court therefore
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correctly found that the Appellants after benefitting from the transaction cannot thereafter cry foul. Issue 1 is consequently resolved as stated.
ISSUES 2, 3 AND 4
1. Whether the Respondents (sic) proved their case in the Lower Court to entitle them to judgment.
2. Whether the Appellants were entitled to judgment in the Lower Court in view of the admission of the respondent to the counter claimed amount of N885,000, and if so whether dismissal of the counter claim does not amount to a miscarriage of justice.
3. Whether a case can be said to be made out against the first Appellant despite the fact that no evidence was led as to his participation in the sale of the (Tamelin) Precious Store (sic).
Having resolved Issue 1, I believe it is best at this juncture to proceed to consider the findings of the Court below which conducted the trial and as it had all the opportunity of listening to the witnesses, seeing and watching their demeanor as well as the evaluation of the evidence placed before it.
The following are the findings of the Court:
On the question whether or not the Respondent established his claim, it stated
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thus on pages 157-158 of the Record which finding in my considered view and humbly, is correct and crucial to the very root of the Respondent’s case:
“The plaintiff introduced PW.2 to witness the transaction on his behalf and the 1st defendant engaged the 2nd and 3rd defendant (sic) to be his witnesses in the transaction. See paragraph (sic) 4, 6 and 7 of the statement of claim. In denying the 3 paragraphs in the statement of defence, the defendants did not specifically deny this transaction. Also in the witnesses for the plaintiff’s/counter claimant’s evidence there was no denial that the transaction took place between the parties.
There was therefore a transaction of sale of precious stones, (tamalin, between the parties here) the weight of which after measurement by them was 175 grams. All parties, the plaintiff and his witnesses, the defendant and his witnesses except DW.2 who said the weight was 75 grams, as can be seen in his evidence above, he was not a witness of truth; as all the other witnesses agreed the weight was 175 grams.”
In consequence of the foregoing, a contract was found between the parties. It is important at this
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juncture to emphasize that the parties to the transaction clearly included very much the 1st Appellant. Indeed, as can be seen from the Record, he could be properly referred to as the principal of the 2nd and 3rd Appellants. The Respondent took the offer of the business, the transaction to the 1st Appellant who included the 2nd and 3rd Appellants. The fact that he went to Senegal and even if he was absent when the sale was made, cannot exonerate him from the need to account in respect of the transaction to the Respondent. Therefore, the argument by the Appellants’ Counsel that, because the 1st Appellant was out of the Country to Senegal, he should not be held accountable cannot hold. The fact of keeping the stones with the DW4 did not remove the 1st Appellant from the transaction between him and the Respondent even when the Respondent instructed that the stones should only be released to the PW 2, Umaru, his agent as properly found by the Court, since the 1st Appellant, in whose care they were, was away. On page 77 of the Record, it is clear that, when the Respondent visited the shop of the DW4 and gave the instruction, the 1st Appellant was away and the
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visit was to confirm that the stones were not yet sold as told to him by the Appellants.
The Court continued thus on page 158 of the Record and further in my view correctly on another fundamental part of the case of the Respondent:
“The stones in question the tamalin was taken to the house of DW.1 for washing, all the plaintiff and defendant witnesses agreed and they thereafter fixed a selling price of N15,000,000.00 paragraph 9 of the statement of defence and paragraph 7 of the statement of claim, paragraph 5 of the defendant’s counter claim and the 1st defendant’s evidence all agreed to the fact that the stone after washing its price was fixed at e15 Million.”
As it is the law, since the foregoing transaction was admitted, the Respondent needed not prove admitted facts. See the case of OWOSHO VS DADA (1984) 7 SC 49.
From Paragraph 10 of the statement of claim on page 6 of the Record, only N8.2Million (Eight Million, Two Hundred Thousand) was paid as found by the Court on page 158 of the Record with an outstanding balance of N6.8 Million (Six Million, Eight Hundred Thousand Naira). In that regard, the Court found credible the story of
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the Respondent and his witness, the PW2, on page 160 of the Record as opposed to that of the Appellants’ witnesses. They claimed that, though the 2nd and 3rd Appellants went to Ibadan on three (3) occasions with PW2 for the sale of the stones, they stayed in the hotel while the PW2 sold the stones and never disclosed the sale price to them. The Court found in that respect as follows
“This story of theirs, sounds incredible, for how can two healthy men travel all the way from Minna to Ibadan for a purpose, and they just lie down in the Hotel waiting for Umaru to make the money.”
It is necessary to note that it was the Court below that had the opportunity and privilege of listening to the parties and watching their demeanour and found the 3rd Appellant, the DW3 to be an untruthful witness even as the witness himself admitted under cross-examination thus on page 74 of the Record: “I am a liar.”
One agrees with the finding of the Court in favour of the claim of the Respondent that he was paid N8.2 Million as opposed to the agreed sale price of N15Million and it stated as follows on page 160 of the Record:
“…They had an
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agreement as to the cost of the precious stones to be N15 Million but only N8.2 Million was paid leaving a balance of N6.8 Million unpaid, so what happened to the balance no one had explained this. Was it that the value of the goods changed and if so, was there any new agreement now reached that the goods would now be sold at N8,000,200.00. This the defendants had not explained even in their counter claim. And as seen above, the defendants particularly DW.3 admitted in open Court he was telling lies …..I therefore attach no weight to the evidence of DW.3.”
The Court was correct not to have accepted the contention of the Appellants’ Counsel that the counter-claim of the 1st Appellant was established and that the loan of N885,000.00 which was admitted by the Respondent should be deducted from the Respondent’s outstanding sum. The Court found that the 1st Appellant, the Counter-claimant had no single witness in support of the said loan which he claimed he gave in bits to the Respondent and no evidence of the money was placed before it. It found as follows and correctly stated the law in that
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regard that the burden of proof “lies on the counter claimant”:
“As seen on issue 1 above, the plaintiff/counter claimant and his witnesses were not credible witnesses, if there was such a borrowing they should have so proved, but that issue was not proved before the Court.”
The law is trite that, where the entire evidence is oral as can be seen with respect to the Counter-claim, there being no documentary evidence, it is such that may necessarily involve demeanor and the determination of the credibility of witnesses and questions on demeanour of the witnesses are exclusively preserved for the trial Court. This Court did not have the privilege of watching and hearing the witnesses testify, for that reason, not in a position to determine the credibility of the witnesses. See the cases of CYPIACUS NNADOZIE & ORS. V. NZE MBAGWU 2008 LPELR-SC 249/2002. One has no reason therefore, to find otherwise in this regard.
Further on the witnesses and their testimonies, the Court had this to say on page 160 of the Record:
“The testimonies of the defendant was inconsistent and full of evasiveness.
The plaintiff witness’s evidence sounded
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more credible in this case. From the demeanour of the defendant witnesses, they did not look credible and were evasiness (sic) when questions were put to them in cross examination and putting the case of the plaintiffs and the defendant/counter claimants on the imaginary scale and weighing them against the other, the evidence proffered by the plaintiffs weigh more.”
It therefore held and correctly too in my considered view and humbly, that “On the whole, the plaintiffs in this case here proved their case on the balance of probabilities as required in civil cases and judgment is consequently hereby entered for them…”
In the light of the foregoing, given the position of the Court that the evidence of the Respondent was credible, that he established the basis for the reliefs he claimed and his entitlement to same, one sees no reason to disturb such finding. Issues 2, 3 and 4 are therefore resolved against the Appellants.
In the result, this appeal therefore fails and cannot be allowed. It is accordingly hereby dismissed. The judgment of the High Court of Niger State Minna, by Hon. Justice Maria Sanda Zukoji delivered on July 12th, 2012 is hereby affirmed.
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PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA and I am in complete agreement with the reasoning and conclusion arrived at.
I have nothing more to add and also dismiss the appeal and abide by the order made in the lead judgment.
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Appearances:
Alhj. Aminu Musa For Appellant(s)
Idris Alhassan For Respondent(s)
