PATRICK OSESA v. TULIP COCOA PROCESSING LIMITED
(2018)LCN/11983(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of July, 2018
CA/B/363/2013
RATIO
CONTRACT: WHEN AGREEMENT IS MADE IN WRITING
“It is the law that agreement can be entered by writing or orally, depending on the circumstances in which the contracting parties find themselves. Where such agreement is expressly in writing, the general rule is that the Court will not look beyond that writing to determine what its express terms are, and where such agreement or contract is made orally, the ascertainment of its terms becomes a pure question of fact. ATTORNEY GENERAL OF RIVERS STATE VS ATTORNEY GENERAL OF AKWA IBOM STATE & ATTORNEY GENERAL OF THE FEDERATION (2011) 3 SC page 1, where it was also held that, an agreement need not be in writing and signed by the parties, which means that a valid agreement can be oral or inferred from the conduct of the parties concerned. See also E.O. AMODU VS DR. J.O. AMODE & ANOR (1990) 9-10 SC 61 where the Apex Court held that in the absence of the express terms of a contract, the Courts will have to fall back on the implied terms of the contract sued upon, going by the intention of the parties to it.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
CONTRACT: WHERE PARTIES ARE BOUND BY THE TERMS OF CONTRACT
“As held by the Supreme Court in the case of OFORISHE VS NIGERIAN GAS COMPANY LTD (2018) VOL. 275 LRCN 106 at 122:-
”Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract.”
See also KOIKI VS MAGNUSSON (1999) 8 NWLR (PT. 615) 492; and UNION BANK OF NIGERIA LTD VS B.U. UMEH & SONS LTD (1996) 1 NWLR (PT. 426) 565.” PER PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: WHERE EVIDENCE REMAINS UNCHALLENGED AND UNCONTROVERTED
“The law also enjoins a Court to act on an unchallenged evidence duly presented before the Court. See KAYILI VS YILBUK & ORS (2015) LPELR 24323 (SC). In OMOREGBE VS LAWANI (1980) 3 – 4 SC 108 the Supreme Court held that:- ‘Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it.'” PER PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
PATRICK OSESA Appellant(s)
AND
TULIP COCOA PROCESSING LTD Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment:
This appeal is against the judgment of the High Court of Edo State delivered by E.A. Edigin J. On the 25th day of September, 2012 wherein the plaintiff’s (now Appellant) claim was granted in part while the defendant’s (now Respondent) counterclaim was dismissed.
In summary, the facts of the case as presented by the Appellant is that he is a produce buyer and in 1991 the Respondent appointed him a cocoa buying agent in Uhom-Ora, Edo State under certain terms and conditions as agreed to by the parties. This includes the defendant advancing money to him for the purchase of the cocoa during the cocoa season and which money is secured by the collateral wherein the Appellant handed over the particulars of his Mercedes Tipper Lorry, Mercedes Benz V Boot Saloon Car and the C of O of his land to the Defendant. The Appellant is required to purchase and supply good grade cocoa beans to the Defendant’s ware house in Lagos. The grading and certification of the cocoa is done by the officials of the Edo State Ministry of Agriculture in the presence of the Defendant’s field officer.
The Defendant also determines the price to be paid by the Appellant for the purchase of the cocoa and it fluctuates, depending on market forces. The Appellant stated that he also entered into an oral agreement with the Defendant for the haulage of the cocoa from Uhom-Ora to Lagos at the rate of N3.50k per kilo weight of cocoa which the Defendant is to pay to him each time he conveys cocoa to its ware house in Lagos. However between 2001 and 2004 he was not reimbursed by the Defendant for the haulage he made which amounts to the sum of N10,269,144.00. For the same period, he supplied the Defendant cocoa to the tune of N363,744,906.00 but he was paid N353,448,358.00 leaving a balance of the sum of N10,116,548.00. He variously demanded for the payment of the outstanding amount owed to him but the Defendant kept telling him to hold on and kept giving different excuses. Also throughout the period he supplied cocoa to the Defendant there was never a complaint that the cocoa he supplied was bad or below the required grade. Due to the pressure he put on the Defendant to pay him the amount owed, he was invited to Lagos but on arrival he was arrested by the police on the ground that he owed the Defendant the sum of N2,146,000.00. He was later released on bail and upon arrival to Uhom-Ora the Defendant’s officials came to his house and removed his Mercedes Benz V Boot car and other documents and which car the Defendant eventually sold, hence he commenced the action by a writ of summons dated 19/1/2005.
In a second further amended statement of claim dated 24/9/2010, the Appellant claim against the Respondent as follows:-
WHEREFORE the plaintiff claims the total sum of N22,585,692 as follows:
a. N10,116,548.00 being unpaid value of cocoa supplied to the Defendant by Plaintiff covering the period 11/07/2001 to 4/10/2004.
b. N10,269,144.00 being unpaid haulage fee for the transportation of 2934041.16 kg of cocoa from Uhom-Ora to Lagos at N3.50k per kg.
c. The sum of N1.2 million naira being the value of the plaintiff?s Mercedez Benz V Boot car impounded or sold by the Defendant.
d. N1,000,000.00 as general damages.
In paragraph 40 of the amended statement of defence/counterclaim, the Respondent counterclaimed as follows:-
(40). WHEREOF the Defendant/Counter-claimant claims from the Plaintiff as follows:-
a. The sum of N2,289,830.50 Dr., being the outstanding sum owed by the Plaintiff to the Defendant/counter-claimant for the supply of good graded cocoa for the 2004/2005 cocoa season which sum the plaintiff has refused/neglected to pay despite repeated demands.
b. AN ORDER compelling the Plaintiff to produce and/or preserve the Mercedes Benz (Lorry Registration No. XA 427 UBJ with the sheriff of this Honourable Court.
c. AN ORDER of perpetual injunction restraining the Plaintiff, his servants, agents, privies or whosoever from selling, alienating, tempering or altering in anyway the Mercedes Benz (Lorry) Registration No. XA 427 UBJ the subject matter of this Suit.”
At the conclusion of hearing, judgment was delivered by the trial Court on the 25th day of September, 2012 wherein the Appellant’s claim was granted in part while the Respondent’s counterclaim was dismissed.
The Appellant being dissatisfied with the said judgment filed a notice of Appeal dated 13/12/2012 but filed on 14/12/2012. An amended Notice of Appeal containing eleven grounds of Appeal was subsequently filed on 4/11/15 but deemed properly filed on 31/10/16.
Parties thereafter filed their respective briefs of argument which they adopted and relied upon at the hearing of the Appeal on 20/6/2018.
In the Appellant’s brief of argument filed on 13/4/2018, the following two issues were formulated for determination as follows:-
1. Whether in view of the state of pleadings and evidence adduced at the trial, the Appellant failed to prove his claim for the cost of cocoa supplied and haulage fees. (Grounds 2, 9 and 11).
2. Whether the trial Court properly evaluated the evidence adduced at the trial, in holding that the Appellant did not prove his case on the preponderance of evidence save for the claim for his V Boot Mercedes Benz Car. (Grounds 1 and 10).
In the Respondent’s brief of argument filed on 19/6/2018 but deemed properly filed on 20/6/2018, the two issues as formulated by the Appellant were adopted. I will also adopt the said two issues for the consideration of this appeal.
ISSUES 1 AND 2
In arguing the two issues together, learned counsel for the Appellant referred to the averments in the 2nd further amended statement of claim as well as the evidence of the PW2 in support thereof to the effect that he had been in the cocoa purchasing business for 16 years and there was no such trade custom as averred by the Respondent and that haulage was the responsibility of the principal and not the agent. He added that this evidence was not challenged by the Respondent in which case it shall be deemed admitted as held in the case of ADEBIYI VS UMAR (2012) 9 NWLR (PT. 1305) 279 at 284 and OSENI VS BAJULU (2009) 12 MJSC (PT. 1) 30 at 50. It was further contended that in view of the unchallenged evidence of the PW2 and the failure of the Respondent to lead evidence on his averment on trade and custom, the finding of the trial Court that the evidence of the PW2 does not add value to the Appellant’s case was in the circumstance, perverse and this Court is competent to interfere with said finding as held in OYEWOLE VS AKANDE (2009) MJSC (PT. 111) 47 at 65.
Furthermore, learned counsel referred to the finding of the learned trial Judge at page 115 of the Record with regard to the content of Exhibits P14 to P16, to submit that the said finding was made in total disregard to the pleadings of the parties who never stated that the terms on haulage was contained in any agreement as per Exhibits P14 to P16, but that the Appellant averred that there was an oral agreement between the parties whereby he was to be paid for haulage at the rate of N3.50k per tonne of cocoa hauled from the buying point at Uhom-Ora to the Respondent’s ware house in Lagos. He added that there is nothing wrong in law with an oral agreement for haulage and it is not compulsory that it should be in writing, therefore searching for an agreement in Exhibits P14 to P16 was an exercise in futility and should not be a ground for the trial Court to hold that the Appellant did not prove that he was entitled to haulage fee.
It was further emphasised that the Appellant led copious evidence of the oral agreement and supported by that of the PW2 which evidence was not challenged or rebutted to the effect that he is being owed the sum of N10,269,144.00 as haulage fees. This is evidenced in Exhibits P to P11 showing that he supplied and hauled a total of 2,934,04.16kg of cocoa to the Respondent’s warehouse in Lagos at the rate of N3.50k per kilogramme as per their oral agreement for the haulage between 2001 and 2004, bringing the total sum for the haulage for the period to N10,269,144.00 and this the Respondent failed to rebut or contradict.
Learned counsel also submitted that by the Respondent’s pleadings and evidence adduced before the Court as well as the exhibits tendered, it only shows that the Respondent advanced money to the Appellant for purchase ONLY and not for purchase and haulage of cocoa to its warehouse. It cannot therefore be supposed that an agent for reward will foot the cost of haulage of the goods of the principal from the agent’s personal fund.
Also referring to the finding of the learned trial Judge at page 115 of the Record, it was submitted that the haulage of cocoa between 1991 and 2000 was not an issue before the trial Court and as such it was wrong for the learned trial Judge to raise such an issue that did not arise from the pleadings and evidence adduced by parties. He cited in support the case of OLALOMI VS NIDB (2009) 7 MJSC 111 at 136 and OBULOR VS OBORO (2001) 3 MJSC 132.
On the finding of the learned trial Judge at pages 115 to 116 on the manner of demand of the debt by the Appellant which is said not to have been corroborated and that the said demand is not shown to be documented, learned counsel submitted that demand for debt does not require corroboration and that documentation is not the only way to prove a debt owed because it can be proved by oral evidence as was done by the Appellant. He added that Exhibit P to P10 show the indebtedness of the Respondent to the Appellant for the cocoa supplied to it but not paid for and the said documents were made by the Respondent from where the Appellant extracted Exhibit P11, and the learned trial Judge acknowledged this in the judgment at page 119 of the Record. It was therefore urged on this Court to hold that the Respondent’s indebtedness is well documented in Exhibits P to P10 being documents made by the Respondent who did not deny their accuracy and should be regarded as admission against interest under Section 20 and 21(B) of the Evidence Act 2011.
Learned counsel also submitted that the finding of the learned trial Judge that Exhibit P11 is incomprehensive and unreliable is perverse because he failed to draw the proper inference from established facts and the evidence adduced and raised issues which are at variance with the pleadings and evidence, because if anything, it is the Respondent that ought to show via cross examination that Exhibit P11 is not true and correct reflection of the content of Exhibits P to P10.
Also referring to the order of dismissal of the counterclaim by the learned trial Judge on the basis that the Respondent did not prove that the Appellant was indebted to it, learned counsel contended that it contradicts the earlier finding of the Court that Exhibit P11 is not reliable or a true reflection of the content of Exhibit P to P10. Therefore the finding of the learned trial Judge is a breach of the principle guiding evaluation of evidence, he relied on the following cases:- OLALOMI VS NIGERIA INDUSTRIAL DEVELOPMENT BANK (2009) 7 MJSC (PT. 111) 145; BASSIL VS FAJEBE (2001) 3 MJSC 87 at 91; OBULOR VS OBORO (2001) 3 MJSC 132 at 135.
Further on the law that an Appellate Court can interfere where the evaluation of evidence and findings of a trial Court is found to be perverse, he cited the case of OYEWOLE VS AKANDE (supra).
Learned counsel concluded by insisting that having specifically pleaded trade custom to rebut Appellant’s claim for haulage fees, it did not rest on the Appellant to prove same and failure to do so amounts to failure by the Respondent to rebut the Appellant’s claim.
It was therefore urged on this Court to allow the appeal.
Also replying on the two issues together as raised by the Appellant, learned counsel for the Respondent posited that the parties entered into a contract which is binding on both parties, therefore anything outside the content of the agreement as documented cannot be implied, having regard to Exhibits P13, P14, P15 and P16 which are agreements guiding the contract and made no reference to any haulage fees but only to advancement of loan to the Appellant to buy specified cocoa and supply to the Respondent.
On the sanctity of contract and the need for parties to abide by the terms and conditions in the agreement as per Exhibits P13, P14, P15 and P16, learned counsel relied on the following cases:- UDOGWU VS OKI (1990) 5 NWLR (PT 153) 721 at 736; OWONIBOYS TECHNICAL SERVICES LTD VS UNION BANK OF NIGERIA LTD (2003) 15 NWLR (PT 844) 545.
On the principle of law that oral evidence cannot be admitted to alter or contradict the contents of a document properly pleaded and admitted in evidence as in Exhibits P13 to P16, he referred to the case of ODEJIDE VS REGD TRUSTEES OF GOSPEL LIGHT MINISTRY (2005) ALL FWLR (PT. 125) 722; BAKER MARINE (NIG) LTD VS CHEVRON (NIG) LTD (2006) ALL FWLR (PT. 326) 236.
It was therefore submitted that in the instant case, the agreement between the parties clearly excluded haulage fee in which case it will be unjust for this Court to read it into the agreement as it will amount to making contract for the parties given that the place of documentary evidence in a contractual relationship cannot be over emphasised as it spells out the intention of the parties as held in the case of EMMANUEL OLAMIDE LARMIE VS DATA PROCESSING MAINTENANCE & SERVICES LTD (2006) ALL FWLR (PT 296) 775 at 779.
Learned counsel then drew the attention of this Court to the contents of Exhibits P13 to P16 on which the contract is formed and urged that notice be taken on the fact that there is nothing like haulage or cost in the said documents.
He further referred to Exhibit P17 which is a power of Attorney executed by the Appellant in favour of the Respondent and which empowers the Respondent to sell any property pledged by the Appellant as security for the loan advanced to him by the Respondent for the buying of cocoa and which fact the Appellant did not deny.
It was also contended that the learned trial Judge was right to have held that the evidence of the PW2 is not sufficient to justify the Appellant’s claim because PW2 was never a privy to the contract between the parties and as such his experience with a third party cannot be imputed on or override a written contract entered into by the parties. Vide LEYLAND (NIG) LTD VS DIZENGOFF (1990) 2 NWLR (PT. 134) 610.
On the evaluation of evidence by the learned trial Judge, it was submitted that since he observed the witnesses and examined the totality of the evidence before him and proceeded to make findings in accordance with the law, this Court should be reluctant to interfere with the decision of the trial Court.
It was then urged on this Court to dismiss the Appeal.
In the Appellant’s two page reply brief of argument filed on 13/4/18, reference was made to pages 2 to 5 of the Respondent’s brief of argument where it was alleged that the Respondent raised a preliminary objection relating to the fact that the Appellant suo motu altered the name of the Respondent from (ED & F. MAN (NIG) LTD ) to be now known as (TULIP COCOA PROCESSING LTD) without any order or leave of Court and this renders the Appeal incompetent. The Respondent did not move or argue any preliminary objection either before or during the hearing of the Appeal. The Preliminary Objection (if any) is accordingly deemed abandoned. See NSIRIM VS NSIRIM (1990) 3 NWLR (PT. 138) 295; TIZA VS BEGHA (2005) ALL FWLR (PT. 272) 200.
On each of the issues one and two as argued together by the parties in their respective brief of argument, the first point to be addressed is whether the Appellant adduced enough evidence at the trial Court to justify his claim for the sum of N10,269,144.00 as the total cost of haulage of cocoa from Uhom-Ora Edo State by the Appellant to the Respondent?s ware house in Lagos.
For the Appellant, his stance is that there was an oral agreement between him and the Respondent for the haulage of cocoa purchased on behalf of the Respondent by him from Uhom-Ora to the Respondent’s ware house in Lagos and that between 2001 and 2004 he purchased and supplied a total of 2,934,041.16kg of cocoa to the Respondent?s ware house in Lagos at the rate of N3.50k per kilogramme as per their oral haulage agreement and this brings the total haulage cost to N10,269,144.00 which he has been demanding from the Respondent but it refused to pay him.
The Respondent denied any such agreement made orally with it and relies on Exhibits P14, P15 and P16 as the contract agreement binding the parties to the exclusion of any other agreement either made orally or otherwise and that the said Exhibits above referred did not make provision for payment of haulage fee to the Appellant whose responsibility it is to supply the cocoa purchased to its warehouse at his own cost.
The learned trial Judge in the judgment at pages 114 to 116 of the Record of appeal held inter alia as follows:-
‘In consideration of the Plaintiff’s case, I state straight away that the evidence of PW2 does not add value to plaintiff’s case because PW2 is not a buying agent of the defendant and has never entered into any agreement with the defendant in the area of produce buying.
He does not know the terms and conditions that operates between the defendant and plaintiff so I do not accept or believe his evidence as proof of what operated between the plaintiff and defendant regarding who pays for transportation of cocoa to Defendant’s warehouse at Lagos.
Plaintiff’s evidence is that he has been dealing with the Defendant since 1991 and that the Defendant owes him for haulage from July 2001 to October, 2004. Plaintiff did not have anything to show that between 1991 to 2000 Defendant paid him for transportation of cocoa to establish that it was the usual thing for Defendant to pay for transportation of cocoa. This would have laid some foundation or basis for this Court to believe him. I have also looked through Exhibits P14 to P16 which are the conditions for the loan advanced for cocoa purchase and there is no where it is expressly stated that the Defendant shall pay for transportation of cocoa.”
From a careful perusal of the record of appeal with particular reference to the parties pleadings and evidence adduced, both oral and documentary, I find it impossible not to endorse the findings and conclusion of the learned trial Judge as above set out.
The Appellant had averred in paragraphs 6 and 19 to 21 of the 2nd further amended statement of claim that:-
6. Plaintiff was appointed as a cocoa buying agent to the Defendant sometimes in 1991 for the purchase of cocoa in Edo State amongst others.
19. Plaintiff avers that the principal-agent relationship between him and the Defendant was carried on thus:
a. Defendant advances money to plaintiff usually through its official designated Chief Buyer for the purchase of cocoa within the cocoa season after the Defendant had registered with the Edo State Ministry of Agriculture as buyer.
b. Sometimes advances reach plaintiff through Defendant’s Chief Buyer who is an employee of the Defendant.
c. Plaintiff expends the money in buying cocoa and warehousing them at the buying outlet at Uhonmo-Ora.
d. Defendant’s field officer inspect the cocoa and if passed by them it is graded and shipped to Defendant’s warehouse in trucks hired and paid for by plaintiff to be reimbursed by Defendant.
e. Plaintiff also buys cocoa and supplies to Defendant in anticipation of advances from Defendant.
20. In the course of dealing as aforesaid in the immediately preceding paragraph and sub-paragraphs, the defendant became indebted to plaintiff beginning from July, 2001 for haulage charges, underpayment for cocoa supplied.
21. Although the plaintiff made several efforts to be paid these monies, the Defendant gave one reason or the other to refuse payment ranging from the company was yet to find its feet and the plaintiff should be patient because when things work out he would benefit; that the plaintiff?s money was held as further security for the advances it was making to plaintiff, the monies were deductions made to offset loss suffered from failure of the cocoa supplied by plaintiff to meet specification during defendant’s private test.”
In his evidence in chief, he testified at page 35 of the Record as follows:-
‘The agreement between the Defendant company and I regarding movement or haulage of the cocoa from their trading outlet at Uhom-Ora (which is the Defendant’s company registered place of operation with Edo State Government) is that they will pay for my haulage from Uhom-Ora to their warehouse in Lagos from where the cocoa is exported. Defendant company agreed to pay me N3.50k per kilo weight of cocoa beans hauled or shipped by me to them. Defendant company has other agents in Oredo, Osun and Ekiti States. From Akure they pay N2.50k per kilo for haulage from July 2001 to October 2004.”
Under cross-examination, the Appellant stated thus at page 41 of the Record:-
”I did not say that there was no contractual agreement between the defendant and I but that there was no agreement that I should supply graded or ungraded cocoa to Lagos without haulage fees. The agreement I did with the defendant was that I should supply good quality cocoa as stated in paragraph 11 of the statement of defence. I will recognise the agreement if I see it. This is it.
Adoms. I seek to tender the agreement in evidence.
Mr. Imuzai – No objection.
COURT: Agreement dated 24th September, 2004, is admitted in evidence as Exhibit P13.”
From the above set out portion of the Appellant’s pleading and evidence, what is made manifest is that while insisting that there was an oral agreement by the parties that the Respondent shall pay the cost of haulage of the cocoa supplied by the Appellant, he also acknowledged wholly, the fact that there was a contractual agreement between them with respect to the business of purchase and supply of graded cocoa to the Respondent. Learned counsel for the Respondent had referred to Exhibits P13, P14, P15 and P16 which are the agreement guiding the contract between the parties and which clearly does not make any provision for the Respondent to pay for the cost of supply of the cocoa beans to its warehouse in Lagos, but only made provision for loans to be advanced to the Appellant for the purchase and supply of graded cocoa to the Respondent. A number of Supreme Court authorities were also cited in support of the submission that the Courts must respect the sanctity of contract made by parties who are bound by the terms thereof and the Courts should not allow a departure from same by oral evidence.
It is the law that agreement can be entered by writing or orally, depending on the circumstances in which the contracting parties find themselves. Where such agreement is expressly in writing, the general rule is that the Court will not look beyond that writing to determine what its express terms are, and where such agreement or contract is made orally, the ascertainment of its terms becomes a pure question of fact. ATTORNEY GENERAL OF RIVERS STATE VS ATTORNEY GENERAL OF AKWA IBOM STATE & ATTORNEY GENERAL OF THE FEDERATION (2011) 3 SC page 1, where it was also held that, an agreement need not be in writing and signed by the parties, which means that a valid agreement can be oral or inferred from the conduct of the parties concerned. See also E.O. AMODU VS DR. J.O. AMODE & ANOR (1990) 9-10 SC 61 where the Apex Court held that in the absence of the express terms of a contract, the Courts will have to fall back on the implied terms of the contract sued upon, going by the intention of the parties to it.
In the instant case, it is not in dispute that there is an agreement between the parties with regard to advancement of loan to the Appellant for the purchase and supply of graded cocoa to the Respondent’s warehouse in Lagos.
The point of departure is that the Appellant is insisting that there is also an oral agreement he entered into with the Respondent whereby he will be paid haulage fees for the carriage of the cocoa from Uhom-Ora in Edo State to the Respondent’s warehouse in Lagos at the rate of N3.50k per kilo and which has accumulated to the sum of N10,269,144.00 from 2001 to 2004, the Respondent having refused to pay the aforestated sum.
Now, as held in the case of A.G. RIVERS STATE VS A.G. AKWA IBOM STATE & ANOR supra, the ascertainment of the terms of an oral agreement is purely a question of fact. The Appellant herein in his pleadings and evidence stated clearly that he started business dealings with the Respondent since 1991 when he was appointed as a cocoa buying agent. There is however no further evidence with regards to whether he was paid any haulage fees for the cocoa supplied between 1991 and 2001 when the alleged default in payment commenced and if so, the amount paid to him either through bank transfer or cheque payment and what is more, no receipt acknowledging such payment was produced or tendered given that by normal business practice and for accounting purposes any business set up and much more a Limited Liability Company (as with the Respondent) cannot give by hand in a business transaction without any receipt to acknowledge same for record purposes.
Furthermore, and granted that agreement can be oral, but in the case of a company which is a corporate legal entity one wonders askance as per the mode of such oral agreement as claimed by the Appellant. Moreso, that he did not mention any Director or Principal officer of the Respondent with whom he entered into the said oral agreement for the haulage of cocoa at the rate of N3.50k per kilogramme.
As rightly held by the learned trial Judge, the Appellant did not have anything to show that between 1991 and 2000, the Respondent paid him for transportation of cocoa from Uhom-Ora to Lagos. This should have at least, been a pointer to the fact that it was the usual practice before 2001.
As earlier stated, the proof of the terms of an oral agreement is by pure fact and in the instant case, apart from the mere assertion by the Appellant that there was an oral agreement for the payment of the cost of the haulage of cocoa to the Respondent’s warehouse in Lagos, there are no facts presented to support the said assertion and as rightly found by the learned trial Judge, the evidence of the PW2 who is not part of the transaction or privy to any such payment does not help the Appellant’s case because he cannot use the type of business agreements he had entered into as a standard for other parties.
As duly agreed to by the parties, the only written agreements between the parties are as contained in Exhibits P13, P14, P15 and P16 and which agreements did not make provision for haulage fees to be paid by the Respondent and its terms and conditions cannot be altered or varied by oral evidence. See ODEJIDE VS REGISTERED TRUSTEES, GOSPEL LIGHT MINISTRY (2005) ALL FWLR (PT. 264) 965 and INYANG VS EBONG (supra) also relied on by the Respondent.
As held by the Supreme Court in the case of OFORISHE VS NIGERIAN GAS COMPANY LTD (2018) VOL. 275 LRCN 106 at 122:-
”Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract.”
See also KOIKI VS MAGNUSSON (1999) 8 NWLR (PT. 615) 492; and UNION BANK OF NIGERIA LTD VS B.U. UMEH & SONS LTD (1996) 1 NWLR (PT. 426) 565.
The law is that the burden to prove any particular fact lies on that person who wishes the Court to believe in its existence. See Section 136 of the Evidence Act 2011. See also the case of EWO & ORS VS ANI & ORS (2004) 3 NWLR (PT. 861) 610; ELIAS VS DISU (1962) LPELR 25114 (SC). The principle therefore is that a person who is able to produce a preponderance of credible evidence will have judgment in his favour. See ODUOLA & ORS VS COKER & ORS (1981) 5 SC page 197.
In the instant case, the Appellant who asserted that there was an oral agreement whereby the Respondent shall pay the cost of haulage of cocoa from Uhom-Ora, Edo State to the Respondent’s warehouse in Lagos and that the Respondent is owing him a total sum of N10,269,144.00 as haulage fees from 2001 to 2004 has failed entirely to prove that fact and as such renders the claim unattainable.
On the claim for the sum of N10,116,548.00 as unpaid value of cocoa supplied to the Respondent by the Appellant for the period 11/7/2001 to 4/10/2004, the Appellant had relied on Exhibits P to P10 as well as P11 to contend that they contain facts necessary to prove the said claim, therefore the finding of the learned trial Judge that the said Exhibits are incomprehensible and unreliable is perverse given the inconsistency inherent therein, because having earlier found as a fact that the Respondent did not deny or challenge Exhibits P to P10 which emanated from it and Exhibit P11 made by the Appellant, it follows what is admitted needs no further proof.
For clarity purposes, I herein below set out the reasoning and conclusion of the learned trial Judge as contained in pages 116 to 119 of the Record. It reads:-
”Plaintiff’s evidence in support of his pleadings to establish this claim is that between 7th July, 2001 and 4th October he supplied the Defendant a total of 2,934,041.16 kilograms of cocoa which amounted to N363,764,906.00 but he was paid N353,648,358.00 leaving a balance of N10,116,548.00 which the Defendant owes him up to today. Plaintiff relied on Exhibits P to P10 made and given to him by Defendant showing transactions between them for the period. Plaintiff also tendered Exhibit P11. Exhibit P11 is a summary account of Exhibits P to P10 prepared by plaintiff.
The plaintiff while giving evidence demonstrated how the figures in Exhibits P11 were extracted from Exhibits P to P10 which cover transactions between plaintiff and Defendant for the period of 7th July, 2001 to 4th October, 2004 which is the period complained about by plaintiff and relevant to this case.
Exhibit P11 sets out the following:-
I. The date of each transaction.
II. The number of bags of cocoa supplied in each transaction.
III. The weight of cocoa in kilogrammes supplied to the Defendant.
IV. The price per kilogramme.
V. The actual amount or cost of cocoa supplied to Defendant.
VI. The amount paid to plaintiff.
VII. The difference between the amount or cost of cocoa supplied and the amount paid to plaintiff.
The Defendant did not deny or challenge Exhibits P ? 10 which plaintiff said emanated for from Defendant. Defendant did not also deny or challenge the credibility of Exhibit P11.
Plaintiff’s counsel in his address urged Court to believe Exhibit P11. Defendant?s counsel on the other hand urged Court to disbelieve Exhibit P11 and expunged it from the record because it was prepared in anticipation of this litigation. He referred to Section 91 (3) of the Evidence Act. While I may not agree entirely with the submission of Defendant’s counsel because Exhibits P11 is just a summary of Exhibits P – P10 . made easier, I want to state that Exhibit P11 on the other hand is not in my view comprehensive enough for me to arrive at the conclusion made by plaintiff’s counsel for me to accept Exhibit P11 as proof of what the Defendants owe the plaintiff. This is because I took time to look at Exhibits P – P10 and discovered that while the plaintiff in Exhibit P11 took into account only the differences in the actual amount of cocoa supplied by him and the amount paid, he did not take into account the cocoa advances paid to him which were debited against him. If as agreed by the parties that the Defendant advances money to the plaintiff to supply cocoa, the plaintiff in my view ought to have told this Court what quantity of cocoa the advance given to him by Defendant covered. I do not know if the quantity the plaintiff claims he supplied is covered by the advance given to him by the Defendant. Even though the Defendant did not cross examine the plaintiff of Exhibit P11, I cannot justifiably close my eyes to the issues I have raised above because in Exhibit P – P10 from which Exhibit P11 was made also lies these issues.
I do not feel it is left to the plaintiff to pick and choose only that which suits him in the face of other questionable issues. He who comes into equity must come with clean hands. It is not also the duty of this Court to go on a voyage of discoveries to be making cases for any party. Plaintiff evidence under cross examination is that he kept pressing the Defendant to pay him but he was always told to wait. I find his attitude quite absurd and unusual in the common cause of business that he was only asking for the amount orally. If the defendants were actually owing him, I believe it would have been reflected or documented.
Since Exhibits P – P10 are documents to which both parties agree to, any summary on the reconciliation of such accounts ought to reflect the true position of each party. It is my view therefore that Exhibit P11 is not a true and comprehensive rate of the transaction contained in Exhibits P – P10 and therefore not reliable or credible enough to support the claim of N10,116,548.00 of the plaintiff as the unpaid value of cocoa supplied by him to the plaintiff.”
My understanding of the above set out portion of the findings of the learned trial Judge is that having made a clear point that the Respondent did not deny or challenge the content of the said Exhibits P to P10 as well as Exhibit P11 which is a summary prepared by the Appellant with regard to all the transactions in Exhibit P to P10. He proceeded to hold that notwithstanding the fact that the Respondent failed to cross examine the Appellant on the content of the said Exhibit P11 or challenge same in any way, the said Exhibit P11 cannot be relied on because in his view it is not comprehensive enough for him to arrive at the conclusion that the Appellant is entitled to his claim. At pages 117 to 118, the learned trial Judge has stated that:-
‘While I may not agree entirely with the submission of Defendant’s counsel because Exhibit P11 is just a summary of Exhibit P to P10, made easier…”
In other words, the learned trial Judge agreed to the fact that Exhibit P11 duly admitted in evidence without any objection by the Respondent’s counsel is a true summary of Exhibits P – P10 went ahead to embark on a personal analysis of same beyond what the Respondent had done in not challenging the content of the said Exhibit P11. This to my mind amounts to a Court descending into the arena to make a case on behalf of a party who has been recorded as having not challenged an issue before the Court. It is not for the Court to make case for the parties, the Court acts and finds only on the case presented before it by the parties. See OKPULOR VS THE STATE (1990) 11 – 12 SC 151. A Court should not approbate and reprobate at the same time. See FEDERAL REPUBLIC OF NIGERIA VS IWEKA (2011) 11 – 12 SC (PT 1) 191.
The learned trial Judge has made a finding that the Respondent did not cross examine the Appellant on the efficacy or genuineness of Exhibit P11 tendered and duly admitted in evidence in proof of the Appellant’s claim neither was the content contradicted by any evidence adduced by the Respondent. It follows that the content of the said Exhibit P11 should be deemed admitted by the Respondent as reflecting the true summary of Exhibits P to P10 made by the Respondent itself.
The law is trite that what is admitted needs no further proof. See Section 123 of the Evidence Act 2011.
The law also enjoins a Court to act on an unchallenged evidence duly presented before the Court. See KAYILI VS YILBUK & ORS (2015) LPELR 24323 (SC). In OMOREGBE VS LAWANI (1980) 3 – 4 SC 108 the Supreme Court held that:-
”Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it.”
See also BOSHALI VS ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917; NIGERIAN MARITIME SERVICES LTD VS BELLO AFOLABI (1978) 2 SC 79; NZERIBE VS DAVE ENGINEERING CO. LTD (1994) 8 NWLR (PT. 361) 124; ODULAJA VS HADDAD (1973) 11 SC 357.
The Appellant also testified at page 37 of the Record as follows:-
”The total value of the cocoa I supplied the Defendant is N363,764,906.00. I was paid N353,648,358.00. If what I was paid is taken away from what I supplied them, there will be a difference of N10,166,548.00. I asked for my money from the Defendant?s company, they told me I should hold on and be patient with them that after the season I will be paid.”
Earlier in his testimony at page 36 of the Record, the Appellant stated thus:-
”On the basis of Exhibits P – P10 prepared a summary tabulated sheet stating the dates I delivered the cocoa, the number of bags, the price tag, period, the weight of the kilograms supplied, the actual value of the cocoa and the amount they paid and the outstanding balance. I got the facts dated (sic) (stated) in my summary tabulated sheet from Exhibits P1 – P10.”
The said summary of tabulated sheet of nine pages was admitted in evidence and marked Exhibit P11 and which documents contain a summary of cocoa supplied by the Appellant to the Respondent, and the amount paid to or advanced to him and the balance.
As rightly found by the learned trial Judge, the Appellant as not cross examined on his evidence relating to the balance owed to him neither was the content of Exhibit P11 challenged either during cross examination or when it was being tendered in evidence.
This makes the evidence adduced by the Appellant with regard to the balance sum of N10,116,548.00 owed to him by the Respondent for the cocoa supplied to it unchallenged and open to be acted on by the Court.
Where a trial Court has made improper use of the opportunity of seeing and hearing the witnesses, that is to say, where the finding of the trial Court is not supported by the printed record or the finding is not the proper conclusion or inference to be drawn from the evidence, the Appellate court will in the interest of justice, interfere by reversing or setting aside such perverse findings of the trial court. See OGBUOKWELU VS UMEANAFUNKWA (1994) 5 SCNJ 42; ANTHONY ODIBA VS TULE AZEGE (1998) 7 SCNJ 119.
In the final result, issue 1 is resolved against the Appellant while issue 2 is resolved in his favour.
Consequently, I hold that this appeal succeeds in part and it is accordingly allowed in part.
Except for the order of dismissal of the Appellant?s claim for the sum of N10,116,548.00 which is hereby set aside, the judgment of the High Court of Edo State delivered on the 25th day of September, 2012 is hereby affirmed.
Parties to bear their costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, OSEJI, JCA. I am in agreement with the reasoning and conclusions of my learned brother.
I also affirm the judgment of the lower Court, except the part dismissing the appellant’s claim for the sum of N10,116,548.00.
There is no order for costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had preview of the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA. I agree with the reasons therein advanced as well as the conclusion reached that the appeal succeeds in part and accordingly allowed in part.
I also affirm the judgment of the trial Court delivered on 25 day of September 2012 except for the order of dismissal of the Appellant’s claim for the sum of N10,116,548.00 which I also set aside.
I abide by the order on cost.
Appearances:
MICHAEL OKOGHIEFor Appellant(s)
MISS TOLUWALASE ODEBODEFor Respondent(s)
