SABRU (NIG) LTD v. ACCESS BANK
(2020)LCN/15195(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, March 12, 2020
CA/YL/64/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
SABRU NIGERIA LIMITED APPELANT(S)
And
ACCESS BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT FACTS ADMITTED NEED NO FURTHER PROOF
In the case of Jalasun v. Bamgboye (2011) AFWLR (Pt. 595) 203 at 215 Paras. D-E Ratio 2 it was held that:- “Facts admitted need no further proof”. PER BAYERO, J.C.A.
WHETHER OR NOT PARTIES ARE ALLOWED TO IMPORT CLAUSES THAT DO NOT FORM PART OF THEIR AGREEMENT
Parties are not allowed to import clauses that do not form part of their agreement. See Cadbury (Nig). Plc. v. Oni (2013) AFWLR (Pt. 251) 251 at 254 Paras. E-F Ratio 1 and African International Bank Ltd. v. ASCO Investment Ltd. (2012) AFWLR (Pt. 656) 413 at 419 Ratio 7. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO J.C.A.(Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Adamawa State delivered on 26/02/2017 by Nathan Musa J. The Appellant as Plaintiff claimed from the Respondent/Defendant as follows:-
1) A DECLARATION that by the agreement dated 29th November, 2006 as well as another agreement dated 25th January, 2007 between the Plaintiff and the Defendant, the Defendant was obliged to release 34 units of tractors and implements acquired under the said agreements to the Plaintiff and Yobe State Government and that the unjustifiable non – release of the said Agricultural Tractors and implements by the Defendant in good time amounts to a fundamental breach of the agreements between the Plaintiff and the Defendant.
2) A DECLARATION that the Defendant’s refusal to release the said tractors to the Plaintiff for onward supply to Yobe State Government led to the frustration of Plaintiff’s contract with the Yobe State Government and terminated Plaintiff’s obligations to Defendant under the said agreements.
3) A DECLARATION that by virtue of the said breach of the agreements between the Plaintiff and Defendant, the Defendant either by herself or through any agent is not entitled to take possession of the Plaintiff’s property in pursuance of Advance Payment Guarantee or any agreement whatsoever, when the goods for the payment guaranteed are withheld by the Defendant leading to the frustration of the contract under which the guaranteed sum would have been repaid.
4) A mandatory Order against the Defendant to release the Plaintiff, her directors and assets from all liabilities resulting from the agreements subject of this suit.
5) The sum of Twenty Three Million, Three Hundred and Seventy-Five Thousand Naira (N23,375,000.00) Only as special damages representing the amount that would have accrued to the Plaintiff from the transaction which was frustrated by the retention of the tractors by the Defendant as aforesaid.
6) An Order of the Honourable Court to the Defendant to refund the sum of Forty Two Million, Two Hundred and Sixty Thousand, Nine Hundred and Thirty Seven Naira, Fifty Kobo (N42,260,937.50) Only which was advanced by Yobe State Government directly to the Defendant at the instance of the Plaintiff with interest at the rate of 25% per annum from date of collection till final payment.
7) An Order of the Honourable Court directing the Defendant or any of its agents in custody of all title documents to Plaintiff’s property lying and situate at No. 30 Atiku Abubakar Way, Jimeta-Yola to immediately release them to the Plaintiff.
The Appellant/Plaintiff called one witness (PW1) and tendered eleven exhibits and closed its case. The Defendant also called one witness (DW1) and closed its case. The lower Court entered judgment in favour of the Respondent and dismissed the Appellant’s claims. Dissatisfied, the Appellant filed its Notice of Appeal on 7th November, 2017. The Record of Appeal was compiled and transmitted to this Court on 10th May, 2018. It was deemed properly transmitted on 16th January, 2019. The Appellant’s Brief was filed on 14th March, 2019 but deemed properly filed and served on 24th September, 2019. The Respondent’s Brief was filed on 24th July, 2019 but deemed properly filed and served on 24th September, 2019.
In the Appellant’s Brief the following lone issue is formulated for determination:-
“Whether the learned Trial Court Judge was right when he dismissed the Plaintiff’s action for want of proof and non-corroboration of his evidence.” This relates to Grounds 1, 2, 3 and 4 of the Appellant’s Notice and Grounds of Appeal.
On the lone issue, it is submitted that the Appellant testified and placed reliance on 11 documents which were all tendered and admitted into evidence. That the grouse of the Appellant leading to the suit at the lower Court was that it had sought for a financial facility from the then Intercontinental Bank Plc. (now Access Bank Plc.) in order to fund a contract it had secured with Yobe State Government for the importation of 34 units of tractors from China. That the tractors were imported as evidenced in the two proforma invoices that were admitted as Exhibits 10 and 11 respectively as contained on pages 199 and 200 of the printed record.
That the Appellant had equally maintained at the trial Court that upon arrival of the 34 units of the tractors, the Respondent took delivery of same but refused or neglected to release them to the Appellant (pages 55 and 56 of the printed record).That from the pleadings and the evidence adduced at the lower Court, the Respondent had boldly admitted to taking custody of the 34 units of tractors for which the Appellant had sought and obtained a loan facility with the Respondent. That facts admitted need no further proof – Jalasun v. Bamgboye (2011) AFWLR (Pt. 595) 203 at 215 Paras. D – E Ratio 2.
That the Plaintiff’s evidence and the 11 Exhibits were not challenged, though the Plaintiff had put the Defendant on notice to produce other documents relating to the loan facility as contained in Exhibit 6 dated 5/9/2009 (page 228 of the printed record). That the Defendant’s sole witness did not tender any document when he testified (page 202 of the printed record) whose evidence was held by the lower court to be incompetent, yet the trial Court dismissed the Plaintiff’s case. That it has not been stated in any of the Exhibits that the Defendant shall take custody of the 34 units of tractors. That parties are bound by their agreement – African International Bank Ltd. v. ASCO Inv. Ltd. (2012) AFWLR (Pt. 656) 413 at 419 Ratio 7.
That in its statement of defence, the Respondent had to a large extent admitted the facts averred in response to the Plaintiff’s amended statement of claim by stating that it acted based on the terms governing the loan transaction agreement between them.
That upon the admission of the Defendant/Respondent to have taken custody of the 34 units of the tractors without such being part of the terms of the contract, the trial Court ought to have entered judgment in favour of the Appellant/Plaintiff. He urged the Court to allow the Appeal, set aside the judgment of the lower Court and enter judgment for the Appellant.
The Respondent in his response adopted the sole issue formulated by the Appellant for determination thus:-
“Whether the learned Trial Court Judge was right when he dismissed the Plaintiff’s action for want of proof and non-corroboration of his evidence”.
Counsel to the Respondent submitted that it is trite that he who asserts must prove – Section 135 of the Evidence Act 2011. That in the instant case, the Appellant failed at the trial Court to discharge the evidential burden placed on him by law to establish his case by preponderance of evidence. That the Plaintiff failed to establish his entitlement to the declarations sought as rightly held and stated by the trial Judge in his judgment on pages 209-211 of the Record of Appeal. That the Appellant misconstrued the position of the law on declaratory reliefs where Plaintiff must rely on the strength of his case rather than the weakness of the defence – A. G. Cross Rivers v. Attorney General of the Federation (2012) 16 NWLR (Pt. 1327) 425 at 487 Paras. C-E. According to counsel, the mere fact that the Defendant’s/Respondent’s statement of defence and the deposition of his witness DW1 was discountenanced by the trial Court does not entitle the Plaintiff/Appellant to judgment of the Court in its favour. That the judgment of the lower Court was that the Plaintiff/ Appellant failed to present cogent evidence before the Court to prove the reliefs sought. That the Appellant maintained at the trial Court that upon arrival of the 34 units of tractors, the Respondent took delivery of same and refused to release them to the Appellant. According to counsel, the Appellant however failed to provide direct cogent and positive evidence in proof of this assertion. He urged us to dismiss the Appeal and affirm the judgment of the lower Court.
RESOLUTION OF THE SOLE ISSUE FOR DETERMINATION
The grouse of the Appellant leading to the suit at the lower Court was that it had sought for a financial facility from the then Intercontinental Bank Plc. (now Access Bank Plc.) in order to fund a contract it had secured with Yobe State Government for the importation and supply of 34 units of tractors from China. That the tractors were imported as evidenced in the two proforma invoices that were admitted as Exhibits 10 and 11 respectively by the lower Court (pages 199 and 200 of the printed record). That upon the arrival of the 34 units of tractors, the Respondent took delivery of same but refused and neglected to release them to the Appellant. On the side of the Respondent it was argued that the Appellant has failed at the trial Court to discharge the evidential burden placed on him by the law to establish his case on preponderance of evidence.
I have reproduced the claims of the Appellant before the lower Court at the beginning of this judgment. In support of the claims, the Appellant filed the written statement on oath of its sole witness (PW1) as shown at Pages 60 to 64 of the printed record.
The evidence in paragraphs 15, 16, 17 and 19 of the written statement on oath clearly support the averments in paragraphs 14, 15 and 18 of the amended statement of claim (pages 55 – 56 of the printed record) which are germane and the kernel of the Appellant’s claim before the lower Court. For clarity purposes Paragraphs 15, 16, 17 and 19 of the written statement on oath of the only Plaintiff’s witness PW1 (one Sadik Haske Ahmad) as reflected on pages 61 – 62 of the printed record read:-
15. That eventually the tractors were imported into Nigeria from China and Yobe State Government was ready to accept them at that time but Defendant blatantly refused to release the tractors to the plaintiff or even directly to Yobe State Government in spite of the fact that it still had custody of the title documents to the Plaintiff property at No. 30 Atiku Abubakar Road, Jimeta-Yola, which was mortgaged to secure the facility with the defendant and all the various guarantees including my personal guarantee of the banks facility.
16. That the bank in strange circumstances, detained and kept the tractors and implements in a ware-house in Lagos.
17. That while defendant has retained the tractors which were kept in a ware-house in Lagos, it continued to debit plaintiff’s account with and pile huge debts for the payment of exorbitant ware-house rent at Lagos on the plaintiff.
19. That as a result of defendant’s act in keeping the tractors in a Lagos warehouse and refusing to release same to Plaintiff or even directly to Yobe State Government, Plaintiff was unable to honour its contract with the Yobe State Government thereby incurring great losses.
During the cross examination of PW1, his evidence was not discredited or contradicted in anyway. It is therefore deemed admitted. In fact the only question asked during cross examination was answered by PW1 when he answered:-
“It is true that upon receipt of exhibit 7 and 8 I instructed my solicitor to write to AMCON”
Exhibits 10 and 11 are the two proforma invoices that proved that the 34 unit tractors were imported, and as admitted by the Respondent at Paragraph 7 of their amended statement of defence, it refused and neglected to release them to the Appellant (pages 138-139 of the printed record). Paragraph 7 reads:-
“That paragraph 14 of the Plaintiff statement of claim is true only to the extent that the title documents referred to by the Plaintiff were used by him to secure the credit facility granted him by the Defendant but expressly denies keeping the tractors in strange circumstances as all action taken by the Defendant in respect of the tractors are all covered by a term of the agreement governing the transaction.”
The Respondent has therefore admitted taking custody of the 34 units of the tractors for which the Appellant had sought and obtained a loan facility from the Respondent. In the case of Jalasun v. Bamgboye (2011) AFWLR (Pt. 595) 203 at 215 Paras. D-E Ratio 2 it was held that:- “Facts admitted need no further proof”. Furthermore, we have carefully gone through and studied carefully all the Exhibits tendered and admitted before the lower Court, and observed that none of the conditions and terms of the loan agreement governing the transaction between the Appellant and the Respondent authorized the Respondent to keep the tractors in its custody. Parties are not allowed to import clauses that do not form part of their agreement. See Cadbury (Nig). Plc. v. Oni (2013) AFWLR (Pt. 251) 251 at 254 Paras. E-F Ratio 1 and African International Bank Ltd. v. ASCO Investment Ltd. (2012) AFWLR (Pt. 656) 413 at 419 Ratio 7.
The lower Court was therefore in error when it dismissed the case and claims of the Plaintiff/Appellant before it. This Appeal is meritorious and is hereby allowed. The Judgment of the lower Court delivered by Nathan Musa J on 26th February, 2017 in Suit No. ADSY/140/2010 is hereby set aside. Judgment is hereby entered in favour of the Plaintiff/Appellant and against the Defendant/Respondent as per the Plaintiff’s/Appellant’s claim before the lower Court. Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by my learned brother ABDULLAHI M. BAYERO, JCA. I agree with my learned brother’s reasoning and conclusion arrived at in allowing the appeal. I allow same and abide by the orders made as to costs in the leading judgment.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother ABDULLAHI M. BAYERO JCA.
For the reasons contained in the lead judgment, I too allow the appeal and enter judgment in favour of the Appellant and against the Respondent as per the Appellant’s claims before the Court below.
I abide by all other orders including the order as to costs.
Appearances:
G. Seuduktere Esq. For Appellant(s)
Andrew Malgwi Esq., with him,T. U. Danjuma Esq. For Respondent(s)
