OBI v. OKONGWU
(2020)LCN/15456(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/AW/225/2008
RATIO
PLEADINGS: RELEVANCE OF EVEIDENCE ON FACTS NOT PLEADED
It is trite that parties are bound by their pleadings, and evidence on facts not pleaded goes to no issue. PER RITA NOSAKHARE PEMU, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
SUNDAY OBI APPELANT(S)
And
PAUL OKONGWU RESPONDENT(S)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Anambra State, holden at the Onitsha delivered on the 20th of September 2007 in Suit No 0/639/2003.
SYNOPSIS OF FACTS
The Respondent had in the Court below instituted a suit against the defendant (Respondent) viz:
a) A Declaration that under the business agreement between the parties, the defendant is not entitled to any commission unless and until he renders an account as required.
b) An order of the Honourable Court directing the Defendant to render an account to the business he transacted as an agent of the Plaintiff pursuant to the said agreement dated 7th day of July 1999.
OR
c) An order directing the Defendant to pay to the Plaintiff the sum of N20,000.00 (Twenty million naira) being deduction losses, and/or unremitted proceeds from the business transaction between the parties pursuant to the business agreement dated 7th July 1999.
The Respondent had filed a counter claim for the following reliefs viz.
a) A Declaration that the act of servicing vehicle No. 138CD/62 Land Rover (Defense) belonging to the defendant by the Plaintiff “Viet aris” is illegal and unlawful”.
b) An order of Court compelling the Plaintiff to return the said vehicle to the defendant
OR
c) IN THE ALTERNATIVE-AN Order of Court compelling the Plaintiff to pay to the defendant the sum of N1,500,000.00 (One million, five hundred thousand naira) being the monetary value of the said vehicle.
The trial Court dismissed the claim of the Plaintiff (now the Appellant) and found for the Respondent as per their Counterclaim.
The Appellants case is that the Respondent had been his apprentice until the 7th day of July 1999 on which day a business agreement was signed between them.
The agreement was to the effect that the Appellant would open a shop for the Respondent in Maiduguri where the Respondent will sell cosmetics.
The Respondent was to sell the goods and give account to the Appellant from which the Respondent will be entitled to 1½% Commission.
That the Respondent took over the shop, sold the goods, but refused to render account to the Appellant.
The Respondent denied that he instead of rendering the said account to the Plaintiff, sent monthly returns to a third party – Markson Chemical Industries W/A Ltd who was not a party to the business agreement of 7th July 1999. The Respondent stated that he rendered account to Markson Chemical Industries W/A Ltd because the Appellant was a Division of Markson Chemical Industries W/A Ltd. That whatever was outstanding between the Appellant and himself was settled in the settlement Agreement of 7th January 2003 between the Appellant and the Respondent.
The Respondent on his part counter-claimed for the return of a land Rover Jeep he bided and won at the British Embassy Lagos. He admitted collecting the sum of N300,000.00 from the Appellant in the course of securing the vehicle. He admitted that he did not refund the sum of N300,000.00, but that the agreement of 7th January 2003 relieved him of the payment of the said sum.
At the close of the trial, the Court below dismissed the Appellant’s claim. The Appellant is dissatisfied with the decision of the Court below and has appealed same.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 24th of September 2007 – Pages 134-137 of the Record of Appeal. This was amended reflecting nine (9) Grounds of Appeal.
The Appellant filed his amended brief of argument on the 16th of November 2016. Same was deemed filed on the 23rd of November 2016. It is settled by Arthur Obi Okafor SAN. The Respondent’s brief was filed on 9th of February 2016 but deemed on the 25/5/2017. It is settled by Ikechukwu V. Nwokoye Esq.
The Appellant distilled three (3) issues for determination from the Grounds of Appeal.
They are:
1) Whether the Court below was right when it held that it believed that the agreement of 7/1/2003 (Exhibit G) settled the dispute over rendering of account of the transaction to the appellant by the respondent.
2) Whether the Court below was right when it believed the respondent that he had rendered account to the appellant and that it was the respondent that installed the signboard and not the appellant.
3) Whether the Court below was right when in all the circumstances of this case, it awarded N 1.1 million naira to the respondent.
The Respondent proffered three (3) issues for determination for the Grounds of Appeal, they are:
1) Was the Court below not right when it dismissed the case of the appellant for lack of substance and merit?
2) Was the Court below not right when it sustained the counterclaim of the respondent?
3) Was the Court below not right when in all the circumstances of this case it awarded N 1,100,000.00 (one million, one hundred thousand naira) to the respondent being the monetary value of land rover with registration no. 138CD/62 removed by the appellant from the respondent?
The issues proffered by the Respondent is an adoption of the issues for determination distilled by the Appellant. I shall consider this Appeal based on the Appellant’s issues for determination.
On the 15th September, 2020 the Appellant adopted his brief.
ISSUE NO 1
The Appellant submits that Exhibit “G” speaks for itself. It – states inter alia that it is an agreement between the Appellant and the Respondent on 7th January 2003.
It was agreed on the said date in the presence of Mr. Obiora Okongwu and Mr. Nnamdi Emelo that Mr. Paul Okongwu will pay back to Sunday Obikade the sum of (N67,000) (Sixty-seven thousand naira only) on or before 30th of July 2003.
Submits that the Court below had observed that it is not the function of the Court to supply the particulars of the said agreement, but it had hitherto observed thus
“From this agreement it appears to the Court that any debt controversy between the Plaintiff and the Defendant was finally settled”.
That this constitutes a contradiction on the part of the Court below. That this observation amounted to supplying particulars of the Agreement, which cannot be found within the four walls of the Agreement especially when the witnesses who participated in the said settlement also testified in the proceedings and made it clear that the Agreement of 7/1/2003, was specific and related to money collected from customers by the Respondent.
The Appellant submits that the Respondent was the party that had the onus to prove that he has been discharged from rendering the accounts for any reason. That the Respondent who was obligated to render accounts to the Appellant in line with Exhibit “A” must show in line with the said Agreement, that he rendered the account; That Exhibit “G” cannot relieve the Respondent from his responsibility to render accounts to the Appellant. That Exhibit “G” did not settle all disputes between the Appellant and the Respondent. That oral evidence cannot be admitted to contradict, add to or vary a contract – referring to Section 132(1) of the Evidence Act 2011. That this provision is subject to the exceptions as provided for in Suit Section 1(a) (b) (c) (d) and (e) of Section 132(1) of the Evidence Act.
That the provisions only permit evidence which will not be inconsistent with the terms of the relevant contract – of document – citing F. I. B, Plc V PEGASUS TRAN. OFFICE (2004) NWLR.
ISSUE NO 2
The Appellant submits that no statement of Account was tendered at the Court below. Submits that from the terms of the Agreement, the nature of the account to be rendered by the Respondent is deductible. That the agreement provided that the account shall be rendered after each trip. The Respondent was to be entitled to 1 ½% commission of “the total turnover of the products sold. (cost price and profit inclusive)”.
That the agreement provided that the account shall be rendered after each trip. That the business commenced in 1999. That in the absence of the Respondent proving that he rendered account according to the provisions in Exhibit “A”, the Court erred when it held that there was abundant evidence showing that account was rendered to Markson Chemical Ltd. That Markson Chemical Ltd is not a party to Exhibit “A”.
Submits that the Court below read into Exhibit “A” what was not there.
Urges Court to resolve issue NO. 2 in favour of the Appellant and against the Respondent.
ISSUE NO 3
Submits that the Court, in awarding the sum of one million, one hundred thousand naira to the defendant, failed to take into account the following:
a) The fact that Respondent had not repaid the Appellant, the sum of N300,000.00
b) The fact that the Respondent had not accounted to the Appellant with respect to the business transaction they executed under the Business Agreement (Exhibit A)
c) The fact that there was no evidence as to the value of the said Landover before the Court.
Submits that the fact that one of the Jeeps was sold for the sum of N1.1million does not mean that the other one should be sold for that same amount because there is no evidence that the two vehicles were exactly the same and in the same condition.
Urges this Court to set aside the order for the Appellant to pay the Respondent the sum of N1,100,000.00 as ordered by the Court below.
In Resolving Issue No. 1, Exhibit “A” is a business agreement made on the 7th of July 1999, between the Appellant and the Respondent.
It provides thus: –
“Where by it is agreed as follows:
1. The Principal will supply goods (Cosmetic Products) to the agent who will be selling of former’s state situate at Maiduguri in Bornu State.
2. That the transaction of the business shall be on commission basis. The Agent will take 1½% of the total turnover of the product sold (i.e) cost price and profit inclusive.
3. That the products will never be sold on credit or such credits to be deducted from the agents share of 1 ½% commission.
The Parties Further Agree
1) That the agent shall remain diligent and honest during the period of the business.
2) That account shall be rendered after each trip.
3) That the agent will not serve another person in the same capacity or deal, howsoever privately in a similar business. …”
Exhibit “G” is an agreement between the parties. It is dated 7th of January 2003.
It was agreed in the presence of Mr. Obiora Okongwu and one Nnamdi Emefo that the Respondent will pay back to the Appellant the sum of N67,000.00 (Sixty-seven thousand naira only) on or before 30th of July 2003”.
In proof of his case, the Appellant called four witnesses and testified himself.
The Appellant in his evidence had alluded to the fact that the Agreement of the 7th of January 2003 was in respect of a different transaction. But he did not plead that separate transaction, neither did he mention it. PW1, PW2, PW3 and PW4 had testified that the only business dealings the Parties were engaged in was the Cosmetic business.
It is trite that parties are bound by their pleadings, and evidence on facts not pleaded goes to no issue.
Exhibits H and J are monthly returns showing that the Respondent has been rendering account to the Plaintiff. They are dated 11th March 2002 and 11th May 2002 respectively. Indeed, Exhibits Q, R-R5 are copies of monthly returns by the Respondent in 2001 by DHL. Exhibit K was tendered by the Respondent. It shows that the Appellant had acquiesced that the Respondent has been rendering account to the Appellant, from 1999 to 2002, as instructed by the Appellant. Exhibit 1 is the record of monies paid into the account of Markson Chemical Industries (W.A) Ltd from 1999 to 2002. If indeed the Respondent failed to render account, why did the Appellant keep quiet. That amounted to acquiesces.
A painstaking perusal of Exhibit “G” shows a onetime transaction that is to say that it was agreed on the 7th of January 2003, that the Respondent will pay back to the Appellant the sum of N67,000.00 (Sixty-seven thousand naira only) on or before the 30th of July 2003.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Respondent had shown that he rendered account to Markson Chemical Industries W/A Ltd, because Maduwebucho Obi Enterprise was a division of the said Markson Chemical Industries. Indeed, the Respondent had said that whatever was outstanding between the Appellant and himself had been settled in the settlement Agreement of 7th January 2003 Exhibit “G”.
But the Appellant had stated that the settlement of 7/1/2003 was in respect of other money which the Respondent collected from one of their customers which the Respondent failed to remit to the Appellant.
Whatever transaction the parties went into after the mutual agreement cannot be said to be part of the original agreement.
It is my view that whether the entire dispute between the Appellant and the Respondent was settled into the agreement of 7/1/2003 is of no moment. The issue is whether the Respondent rendered account as directed in Exhibit “A”. He produced evidence that he did. Evidence that remain unchallenged. And if he did render account he is entitled to the percentage of 1½% commission promised him.
I am of the view that the payment of N67,000 may rightly be said to be a final payment of the sums due the Appellant. The Appellant owed the duty to tell the exact amount due and that was not remitted, but he did not.
Putting the cases of the parties on an imaginary scale of justice, the Respondent, had established that he rendered account in line with the terms in Exhibit “A”.
This issue is resolved in favour of the Respondent and against the Appellant.
In resolving Issue No 2: It is my view that it is the function of the trial Court that has the duty to appraise the evidence before it, having at its bosom the facts.
The Appellant was to remit money regarding the sale of cosmetics and not cars or any other commodity for that matter.
The transaction regarding the taking of possession of the Land Rover 138CD/62 because the Respondent did not return the N300,000.00 (Three hundred thousand naira) has no nexus whatsoever with the terms of Exhibit A.
The Appellant has submitted in paragraph 4.06 of his brief of argument (rightly in my view) that Courts are bound to give effect to the Agreement of parties. They are not to add to, or subtract from the Agreement.
The Court below had observed thus “The signboard at the stall in Maiduguri bear the name “Maduabuchi Obi Enterprises, a division of Markson Chemical Industries W/A Ltd” It was not the defendant that installed the signboard but the Plaintiff or his agent. ]
In a joint statement of Defence of the Defendant and in paragraph 9 (the Suit by the Defendant against Markson Chemical Industries (W/A) Ltd and the Plaintiff at the Federal High Court, Maiduguri) they averred inter alia
“with respect to Paragraph 9 of the Statement of Claim the Defendants state that even though the Plaintiff was crediting the account of 1st Respondent with the proceeds of the sale he was also wrongfully helping himself with substantial part of the said proceeds to the detriment of the Defendant”.
Apparent in this pleading is that there is an acknowledgment that the Respondent rendered account to the Appellant.
In Paragraph 7 of the Statement of Claim filed on the 14/4/2008 the Plaintiff (Appellant) averred thus:
“The Plaintiff avers that the Defendant had resolved various demands made on him to come and render account to him …”
There is no document evidencing same. He who avers must prove.
In answer to Paragraph 7 of the Statement of Claim, the Defendant (Respondent in this appeal) in its paragraph 8(a) of his Statement of Defence and Counter Claim had this to say;
“That he has consistently been rendering account to the Plaintiff on monthly basis through the monthly stock return since the inception of the agreement dated 7/7/99. The Defendant shall at the trial of this Suit rely on the copies of the said Monthly Stock Returns in the custody of the Plaintiff. …”
Page 13 of the Record of Appeal.
The answer to Issue No 2 is in the affirmative and same is hereby resolved in favour of the Respondent and against the Appellant.
ISSUE NO 3: The Court had granted the Claimant in the Counterclaim in the sum of N1.1 million naira being Court’s estimated value of the Land Rover number 138CD 62/ the time it was annoyingly removed by the Plaintiff from the custody of DW1.
The Plaintiff (Appellant) had filed no defence to counterclaim in the Court below. The Counterclaim of the Defendant (Respondent) therefore remains unchallenged and admitted.
The Court below was right when it awarded N1.1 million naira to the Respondent.
This issue is resolved in favour of the Respondent and against the Appellant.
The Appeal fails and same is hereby dismissed.
The judgment of the High Court of Anambra State holden at Onitsha delivered on the 20th of September 2007, in Suit No. 0/639/2003 is hereby affirmed.
N100,000 costs in favour of the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother R. N. PEMU, JCA.
I agree with the reasons therein advanced to arrive at the final conclusion that the appeal be dismissed. I also affirm the Judgment and award N100,000 costs in favour of the Respondent.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
ARTHUR OBI OKAFOR, ESQ. For Appellant(s)
IKECHUKWU V. NWOKOYE, ESQ. For Respondent(s)
