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NATICEL PETROLEUM LTD v. NEPAL OIL & GAS SERVICES LTD (2022)

NATICEL PETROLEUM LTD v. NEPAL OIL & GAS SERVICES LTD

(2022)LCN/17177(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 08, 2022

CA/A/824/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

NATICEL PETROLEUM LIMITED APPELANT(S)

And

NEPAL OIL & GAS SERVICES LIMITED RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CIVIL MATTERS

The law is beyond settled that in civil matters, the burden of proof rests on the party who asserts a fact and whose case will fail if such assertion is not proved. The standard of proof remains the preponderance of evidence or balance of probabilities. A party is not allowed to rely on the weakness of the defence of the other party but must establish his case with clear, cogent and credible evidence. see the cases of YAKUBU V. JAUROYEL 2005 ALL FWLR PT. 283 184, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and OKUBULE V. OYAGBOLA 1990 4 NWLR PT. 147 P. 723. PER WILLIAMS-DAWODU, J.C.A.

THE DUTY OF THE TRIAL COURT

The trial Court is the Court that has the privilege and opportunity to deal with both facts and law in respect of matters before it, as it listens to witnesses and watches their demeanor.
The Appellant herein at the trial did not field any witness to testify, orally adopt its pleading and the position of the law is clear in that regard. It remains the law that pleadings however strong and convincing the averments may be, without evidence of proof thereof go to no issue. A mere averment in pleading proves nothing unless admitted. Therefore, in addition to pleading relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts then the pleadings are deemed abandoned. The apex Court aptly described the situation of pleadings without oral evidence in the case of OJOH V. KAMALU 2005 24 NSCQR VOL. 24 P. 256 per Tobi JSC as he then was thus: “…not being human beings, have no mouth to speak in Court and so they speak through witnesses. If witnesses do not mandate them in Court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantage of the owner, in this context the appellant.”​
See further the cases of A. G. FERRERO & CO. LTD. V. HENKEL CHEMICALS NIG. LTD. 2011 LPELR-12, IMANA V. ROBINSON 1979 3- 4 SC and UNION BANK OF NIG. PLC. V. ASTRA BUILDERS W.A LTD. 2010 LPELR 3383 SC.  PER WILLIAMS-DAWODU, J.C.A.

THE IMPORTANCE OF PLEADINGS

The two most significant aspects of a claim are pleadings and the evidence in proof thereof. The evidence in proof must align with the pleadings as in the case of the Respondent herein otherwise it would serve no useful purpose. See the cases of AWUSE V. ODILI 2005 16 NWLR 444, BALOGUN V. AMUBIKANHAN 1985 3 NWLR PT. II 27 and CBN V. JIDDA 2001 5 NWLR PT. 705 165. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal arose as a result of the Judgment of the Federal Capital Territory (FCT) High Court in Suit FCT/HC/CV/574/2014, delivered by Hon. Justice A. B. Mohammed on November 6th, 2017 wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) and granted the reliefs sought. See pages 342- 360 of the printed Record before this Court.

​From the facts garnered in the Record, the Respondent, a major importer and marketer of petroleum products within the downstream sector of the petroleum industry, sometime in December 2010, agreed to fund the importation of 30,000 Metric Tons (MT) of Petroleum Motor Spirit (PMS) for the Appellant who was given the allocation for importation for the 1st quarter of 2011. The Respondent is a major customer of Sterling Bank with trade facility running into an excess of USD100,000,000 (One Hundred Million Dollars). According to the Respondent, its commitment was based on the Petroleum Product Pricing Regulatory Agency (PPPRA) letter of September 30th 2010 in favour of the Appellant. The Respondent set the machinery into motion on behalf of the Appellant, paid for the requisite charges for FORM M for the importation of 30,000 MT and caused inflow of funds into the Appellant’s account at various times to fund the letter of credit for the importation. The 30,000 MT of PMS was imported and sold in line with the PPPRA’s mandate at commercial rate and the subsidy element to be paid within the confines of the Petroleum Support Fund (PSF) Scheme. The commercial proceeds according to the Respondent were paid to liquidate the letters of credit and the subsidy element was not paid as at when due until about 4-5 months beyond statutory period as opposed to Forty-five (45) days when subsidy payments are normally paid. As the subsidy payment on the 30,000 MT of PMS was not made as at when due, the Respondent claimed to have suffered liability in terms of accumulated interest on the trade finance facilities used for the importation of the PMS for the Appellant. And in line with its practice, the PPPRA Debt Management Office with the Federal Ministry of Finance computed and assessed the foreign exchange as well as interest rate differentials as Ninety-two Million, Three hundred and Forty-two Thousand One Hundred and Fifty-seven Naira, Eighty-nine Kobo (N92,342,157.89K). It instituted an action against the Appellant for recovery of the said sum after persistent demands without payment from the Appellant.

It is important to state that the matter went to trial the Respondent called Four (4) witnesses and tendered Eight (8) Exhibits in support of its case. The Appellant on the other hand withdrew its Counter-claim and rested its case on that of the Respondent. Judgment was given in favour of the Respondent.
The following were the claims of the Respondent at the Court below:
a. A declaration that the Plaintiff is entitled to be paid the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and fifty Seven Naira, Eighty Nine Kobo) being interest and foreign exchange differentials by the Debt Management Office on importation of 30,000 Metric Tonnes of Petroleum Motor Spirit (PMS) under the 1st quarter of 2011 (QI 2011) which the Plaintiff financed on behalf of the Defendant.
b. And (sic) Order for payment to the Plaintiff the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and Fifty Seven Naira, Eighty Nine Kobo) already computed by the Debt Management Office on importation of 30,000 Metric Tonnes of Petroleum Motor Spirit (PMS) under the 1st quarter of 2011 (QI 2011) which the Plaintiff financed on behalf of the Defendant.
c. Cost of the action.
As already stated, judgment was given in favour of the Respondent, hence the instant appeal, the Appellant being aggrieved.

The Appellant’s Notice and Four (4) grounds of Appeal dated November 14th 2017 was filed November 15th, 2017. In the main the following relief is being sought by the Appellant:
a. An order allowing this Appeal and setting aside the Judgment of the lower Court delivered on the 6th day of November, 2017.
See pages 362 -366 of the Record.

In compliance with the Rules of this Court, the Appellant’s brief of argument dated and filed February 6th 2018 which was deemed as properly filed and served on September 16th 2021, settled by Lawrence Alabi Esq. was adopted at the hearing of this appeal. He urged that the appeal be allowed. On behalf of the Respondent, its brief dated April 2nd 2018, filed April 18th 2018, deemed as properly filed and served was settled by D.A. Awosika SAN, who urged that the appeal be dismissed.

Parties donated Issues for determination of the appeal thus:
ISSUES BY THE APPELLANT
1. Was the learned trial Judge wrong when he held contrary to the provision of Section 131 (1) & (2) of Evidence Act and granted Judgment to the Respondent without proof in support of their case.
2. Did the learned trial Judge err in law when he held that from the unchallenged and uncontroverted oral and documentary evidence led by the Respondent in this case (sic). Thereby held that the Respondent has proved his (sic) case against the Appellant on the balance of probabilities while the documentary evidence admitted by the Court are manifestly contradictory.
3. Did the learned trial Judge err in law and exceeded (sic) his jurisdiction when the Respondent without evidence in proof of facts and material element of his (sic) case, found that the Respondent is entitled to Judgment.
4. Did the learned trial Judge exceed his jurisdiction when he ordered that the appellant should pay the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and fifty Seven Naira, Eighty Nine Kobo) being interest and foreign exchange differentials on importation of 30,000 metric tons of Premium Motor Spirit (PMS)under the 1st quarter of 2011 (QI 2011).

LONE ISSUE BY THE RESPONDENT
“Whether the judgment entered in favour of the Respondent by the lower Court is proper having regard to the pleadings and evidence led.

Having very carefully read the issues by the parties, one is satisfied that a lone issue will suffice for the just and fair determination of this appeal. The issues by the Appellant, with respect all seek the same thing and can be compressed into one. I shall adopt the lone issue by the Respondent reformulated as follows:
Whether or not the Court was right to have found in favour of the Respondent given the evidence placed before it”.

SUBMISSIONS ON BEHALF OF THE PARTIES
APPELLANT’S SUBMISSION
The learned Counsel for the Appellant submitted that the Respondent failed to prove its case as it did not present any material evidence empowering it by the Appellant to fund the importation of 30,000 metric tons of PMS for the 1st quarter of 2011 and cited in support the cases of AGBI V. OGBE 2006 NSCQR 1257 1277, CHIEF CLEMENT OBIJIAKU V. J.B.ONUHA OFFIAH 1995 7 SCNJ 142 and H.R.H. OBA L.B. OMOBORINOLA V. MILITARY GOVERNOR ONDO STATE 1998 12 SCNJ 192. He submitted that no matter how brilliant the submission of Counsel may be, it cannot take the place of evidence and that it was necessary that the Memorandum of Understanding (MOU) allegedly signed by the two parties should have been tendered at the Court below in proof of the Respondent’s case. In support, he cited the cases of NIG. ARAB BANK LTD. V FELLY KEME LTD. 1995 4 NWLR PT. 387 100 and CHUKWUJEKU V. OLALERE 1992.

​He asserted that the permit to import given to the Appellant was in respect of 15,000 MT of PMS only which contradicted the 30,000 MT as pleaded by the Respondent and that Exhibit PW2E which was tendered without any objection from the Respondent was proof of the 15,000 MT. He submitted that the Court should have acted on it without need for further proof from the Appellant and cited in support the case of GOVERNMENT OF AKWA IBOM V. UMA 2006 FWLR PT. 110 P. 1793.
He argued that apart from PW2E, PW3A showed a different sum for the foreign exchange differentials as One Hundred and Thirty- one Million, Seven Hundred and Twenty-six Thousand, Three Hundred and Thirty -eight Naira, Eighty Nine Kobo (N131,726,338.89k). That the Court was wrong to have admitted the Exhibits with the contradictions as it ought not to speculate or make a new contract for the parties and cited in support the cases of ADESOYE OLANLEGE V. AFRO CONTINENTAL NIG. LTD. 1996 7 NWLR PT. 458 29, FAKOREDE V. A-G WESTERN STATE 1972 1 ALLNLR PT.1 178 and IKENYE V. OFUNE 1988 2NWLR PT. 5 1.

​Further he submitted that, the burden to explain the difference in the two sums was on the Respondent which it failed to do.
The learned Appellant’s Counsel submitted that the Court exceeded its jurisdiction to have ordered that the Appellant should pay the Respondent the alleged sum and that the parties were bound by the terms of their contract and in support cited the cases of SERGIUS ONYKWELU V. ELF PETROLEUM NIG. LTD. 2009 ALL FWLR PT. 469 428 and IDONIBOYE-OBU V. NNPC 2003 4 MJSC 131. He argued that failure to tender the said MOU in Exhibit PW3A was critical to the case of the Respondent and cited in support the cases of FRAMO NIG. LTD. V. DAODU 1993 3 NWLR PT. 281 372 and Section 167 (d) of the Evidence Act 2011 in respect of the non-production of the MOU.

In conclusion, he urged that the appeal be allowed and the judgment of the Court below set aside.

RESPONDENT’S SUBMISSION
The learned Respondent’s Counsel submitted that the appeal is unmeritorious, that the Respondent established its case and is entitled to judgment as given by the Court. He asserted that the Respondent supported its case with Four (4) witnesses and Exhibits PW1A, the PPPRA’s letter of allocation to the Appellant to supply 30,000MT of PMS which the Respondent financed, Exhibit PW2A, PW2B, PW2C, PWD, PW2E and PW2F, especially the testimony of PW2 and PW3 and that the decision of the Court was based on evidence and cannot be faulted. In support he cited the case of OGUNLEYE V. ONI 1990 2 NWLR PT.135 745. He argued that the Appellant never denied the accuracy of the entries in the statements of account served on it by Sterling bank and cited the case of SKYE BANK PLC. V. MRS JADESOLA KUDUS 2011 LPELR-4962 CA in support. He submitted that the oral evidence of PW2 and PW3 in respect of the agreement between the parties was rightly allowed by the Court in proving the contents of the MOU that was lost and cited the cases of ONWUGBELU V. EZEBUO & ORS. 2013 LPELR- 20401 CA and ALLI V. IKUSEBIALA 1985 1 NWLR 4 630. That, the evidence of the Respondent was not discredited, remained unchallenged and that the Appellant rested its case on it. Therefore he submitted that, minimum evidence was required from the Respondent and that the case of the Respondent was found more probable. In conclusion, he prayed that the findings of the Court be not disturbed and urged that the appeal be dismissed and the judgment of the Court be affirmed.

THE POSITION OF THE COURT
The issue involved in this appeal in my view and humbly would appear clear and straight forward. The Appellant as contained in its processes before this Court is of the position that the Respondent failed to prove its case with credible and cogent evidence. That it should not have been granted its claims by the Court, particularly as it failed to produce the alleged MOU it claimed was voluntarily signed by both parties on the importation of the 30,000 tons of PMS. It is further the Appellant’s position that it had allocation to import only 15,000 MT of PMS and therefore did not owe the Respondent as claimed.
The Respondent on the other hand argued that it undertook by agreement to finance the importation of the 30,000 MT of PMS given to the Appellant and incurred expenses in respect thereof which were yet to be completely defrayed, hence the suit at the Court below.
I shall proceed to consider the sole Issue adopted through the findings of the Court having very carefully studied the Record and all the processes by the parties placed before the Court. For ease of reference, the Issue is hereunder reproduced.

SOLE ISSUE
Whether or not the Court was right to have found in favour of the Respondent given the evidence placed before it.

The law is beyond settled that in civil matters, the burden of proof rests on the party who asserts a fact and whose case will fail if such assertion is not proved. The standard of proof remains the preponderance of evidence or balance of probabilities. A party is not allowed to rely on the weakness of the defence of the other party but must establish his case with clear, cogent and credible evidence. see the cases of YAKUBU V. JAUROYEL 2005 ALL FWLR PT. 283 184, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and OKUBULE V. OYAGBOLA 1990 4 NWLR PT. 147 P. 723.

The trial Court is the Court that has the privilege and opportunity to deal with both facts and law in respect of matters before it, as it listens to witnesses and watches their demeanor.
The Appellant herein at the trial did not field any witness to testify, orally adopt its pleading and the position of the law is clear in that regard. It remains the law that pleadings however strong and convincing the averments may be, without evidence of proof thereof go to no issue. A mere averment in pleading proves nothing unless admitted. Therefore, in addition to pleading relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts then the pleadings are deemed abandoned. The apex Court aptly described the situation of pleadings without oral evidence in the case of OJOH V. KAMALU 2005 24 NSCQR VOL. 24 P. 256 per Tobi JSC as he then was thus: “…not being human beings, have no mouth to speak in Court and so they speak through witnesses. If witnesses do not mandate them in Court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantage of the owner, in this context the appellant.”​
See further the cases of A. G. FERRERO & CO. LTD. V. HENKEL CHEMICALS NIG. LTD. 2011 LPELR-12, IMANA V. ROBINSON 1979 3- 4 SC and UNION BANK OF NIG. PLC. V. ASTRA BUILDERS W.A LTD. 2010 LPELR 3383 SC. The sworn statement of the parties ought to be adopted in open Court as the oral evidence of the party. One recalls that the procedure by which the sworn statement on oath of a party is adopted at trial by a party under oath came about as part of the efforts in the administration of justice system as one of the ways and means to reduce trial times and bring about speedy dispensation of justice. Therefore, once a party adopts his sworn statement together with any exhibits he may wish to tender having duly followed the process as per the Rules of the particular Court, cross-examination can commence. The Appellant at trial at the Court below opted not to call any witness and rather rested its case on that of the Respondent. As correctly stated by the Court, the position with that option was precarious, as the Appellant’s case would be seen from the case presented by the Respondent and by the Respondent’s evidence.

The Court in its evaluation made the following findings:
That, the Respondent was able to support its story with evidence cogent and credible. It found Exhibit PW1A, dated December 30th 2010, the letter of allocation/permit to the Appellant to import 30,000 MT of PMS as supportive of the oral evidence of the PW3 that the Appellant was given the permit to so import in the 1st quarter of 2011. Exhibit PW2C, the statement of account showed that the Respondent as claimed, credited the account of the Appellant with Sterling bank in the amounts stated therein within the period in respect of the letter of credit for the execution of the claimed importation. The Exhibit supported the evidence of the PW2, one Olanrewaju, Group Head in charge of Corporate & Structured Finance Department, Sterling bank and the PW3, the Managing Director of the Respondent on pages 307 to 318 respectively. There is Exhibit PW2D, the letter from Sterling bank dated May 18th 2011 which confirmed that the bank established a letter of credit in favour of one Vitol S.A. on behalf of the Appellant for the importation of the 30,000 MT of PMS, Exhibits PW2A and PW2B, copies of FORM M and the Letter of Credit in favour of Vitol S.A by the bank on behalf of the Appellant. The Respondent tendered further, Exhibit PW1E, copy of the import permit issued to the Appellant by the Department of Petroleum Resources dated November 23rd 2010 and Exhibit PW3A, the Respondent’s letter dated September 8th 2014 to the Appellant on the outstanding money and the Summary of Interest Charges and Forex Differentials Computation on delayed claims for 2011 submitted to the Debt Management Office for payment which supported PW3’s assertion in her witness statement on oath.

The Court found and stated as follows in respect of the foregoing documents on page 358 of the Record:
“Clearly all the above documentary exhibits (Exhibits PW1A, PW2A, PW2B, PW2C, PW2E, PW2F, PW3A and PW4A) support the oral evidence of the Plaintiff’s witnesses, especially the testimonies of PW2 and PW3.”
One cannot agree more with the Court as well as its position on the non-tendering of the MOU between the parties by the Respondent. That, the non-presentation of the MOU which the Respondent claimed was lost and could not be found, was not fatal to its case as there were other pieces of evidence in preponderance in support of the case of the Respondent. Through the gamut of the Record, there was no finding that the evidence by the Respondent was debunked at cross-examination by the Appellant. In consequence the Court held and correctly in my view and humbly thus on page 359 of the Record:
“From the unchallenged and uncontroverted oral and documentary evidence led by the Plaintiff in this case, I hereby resolve the sole issue for determination in this case in the affirmative and hold that the Plaintiff has proved its case against the Defendant on the balance of probabilities.”

​And it therefore entered judgment for the Plaintiff against the Defendant.

The two most significant aspects of a claim are pleadings and the evidence in proof thereof. The evidence in proof must align with the pleadings as in the case of the Respondent herein otherwise it would serve no useful purpose. See the cases of AWUSE V. ODILI 2005 16 NWLR 444, BALOGUN V. AMUBIKANHAN 1985 3 NWLR PT. II 27 and CBN V. JIDDA 2001 5 NWLR PT. 705 165.

In my considered view and humbly, the findings of the Court cannot be disturbed as they meet the justice of the issues involved. In that regard, one therefore resolves the sole issue herein against the Appellant.

In the result, this appeal cannot be allowed it fails and therefore is accordingly hereby dismissed. Consequently, the Judgment of the Court below delivered by Hon. Justice A. B Mohammed on November 6th 2017 is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, ELFRIEDA O. WILLIAMS- DAWODU, JCA.
I agree with my learned brother that the appeal lacks merit, it fails and is accordingly dismissed.
I also affirm the judgment of the lower Court delivered by HON. JUSTICE A. B. MOHAMMED on the 6th day of November, 2017.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the judgment of my learned brother, ELFRIEDA O. WILLIAMS-DAWODU just delivered, and I agree with the findings and conclusions reached therein that this appeal lacks merit and I dismiss it as well.

The judgment of the lower Court in Suit No. FCT/HC/CV/574/2014 delivered on 6th November, 2017 by A. B. Mohammed, J. is hereby affirmed.

Appearances:

Mr. Lawrence Alabi For Appellant(s)

Mr. D. A. Awosika, SAN, with him, Ms. N. F. John For Respondent(s)