SENATOR NATHANIEL ANAH, S.A.N. V. CHIEF ANTHONY EZEWEPUTA
(2019)LCN/13007(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of March, 2009
CA/E/356/2006
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
STANLEY SENKO ALAGOA Justice of The Court of Appeal of Nigeria
MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
Between
SENATOR NATHANIEL ANAH, S.A.N. Appellant(s)
AND
CHIEF ANTHONY EZEWEPUTA Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN REFORMULATE ISSUES FORMULATED BY PARTIES FOR THE PURPOSE OF CLARITY
It is now trite and well settled law that a court can and is in fact entitled to reformulate issue or issues formulated by a party or parties counsel with the aim of giving it a precision of clarity. The purpose of doing so, is simply to lead to a more judicious and proper determination of the appeal or to narrow issue or issues in controversy in the interest of accuracy, clarity and also brevity. See Musa Shar Jnr. & Anor v. Da Rapkwan & 4 Ors. (2000) 8 NWLR (Pt. 670) 685 or (2000) 5 SCNJ 101; Okoro v. The State (1988) 12 SC 191. Latunde & Anor v. Bellow Lajunfin (1989) 5 SC 59. Unity Bank Plc v. Edward Bonari (2008) 7 NWLR (Pt.1086) 372 at 401 or (2008) 2 SCM 193. PER SANUSI, J.C.A.
WHETHER OR NOT A RESPONDENT CAN RAISE ISSUES FOR DETERMINATION WHERE HE HAS NOT FILED A CROSS APPEAL
The law is also trite that where a respondent has not filed cross appeal or given respondent’s notice, he does not have unbridled freedom or unrestrained power to go about raising issue(s) for determination outside the grounds of appeal filed by the appellant or which are not related or covered by the ground or grounds of appeal filed by the appellant or which are not related or covered by the grounds filed by the appellants. He can only adopt the appellant’s issues based on the ground of appeal or at best to frame his own issue(s) based on related to the grounds of appeal filed by the appellant. See Udeme v. Ugwu (1997) 3 MNLR (Pt. 491) 57, Udem v. Miehelletti & Sons Ltd. (1997) 8 NWLR (Pt. 872), AG Akwa Ibom State v. Essien (2004) 7 NWLR (872) 288; Atanda v. Ajayi (1989) 3 NWLR (Pt.111) 511. PER SANUSI, J.C.A.
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Anambra State High Court of Justice, sitting in Onitsha, delivered on 18th September 2006 in Suit No.O/547/2005. At the High Court (hereinafter called “the lower Court” or “the trial Court”) the appellant as plaintiff thereat, sued the defendant now respondent, claiming the sum of five hundred thousand Naira only (N500,000.00) as money had and received by the defendant/respondent in cheque No. 509359 dated 2nd August 2004 for consideration which had totally failed. He also claimed interest on the said sum, at the rate of 21% per annum from 2/8/2004 until the amount is fully liquidated. Thirdly, the plaintiff/appellant also claimed the sum of thirty million Naira only (N30,000,000.00) as general damages for breach of contract.
Briefly put, the facts which gave rise to this appeal as could be gathered from the pleadings by parties, are that one Barrister Chuks Anah, the son of the plaintiff/appellant used a shop known and called No.1 Ado line, Onitsha Main Market as collateral to secure a loan of five million, five hundred thousand Naira (N5,500,000.00) from the respondent with a promise to redeem the said loan later but the plaintiff/appellant had alleged that he agreed to deposit the sum of five hundred thousand Naira out of the loaned sum being the amount he advanced to his son with the understanding that on his return from abroad where he was traveling to on medical ground. On his part, the respondent as defendant, denied owing the appellant the said sum of N500,000.00 claimed by him and or that he loaned N5.5 million to Chuks Anah. He also denied that Barrister Chuks Anah used No. 1 Ado Line, Onitsha Main Market as collateral pending when his (defendant’s) money was fully refunded. Instead, he said that he purchased the said landed property from Chuks Anah. He again claimed that the said sum of N500,000.00 was simply a repayment of the “friendly loan” given to the appellant by him sometimes around 29/5/2004. At the trial none of the parties called any witness to testify for his case, even though each of them gave evidence for his case. In the end, the learned trial judge dismissed the suit and the claim made by the plaintiff.
Being dissatisfied with the decision of the lower court, the plaintiff appealed to this court. He filed his Notice and Ground of Appeal dated 7/11/2006, which quite surprisingly, did not contain any relief sought before this court.
The said Notice contained three grounds of appeal. The three grounds of appeal are reproduced hereunder shorn of their particulars:
Grounds of Appeal
1. The learned trial judge erred in law by placing a wrong onus on the plaintiff to prove what he did not assert.
2. The trial judge erred in law by dismissing the plaintiffs claim based on Section 149 (d) of the Evidence Act and the decision in Agbi vs. Ogbeh CJN 314 at 348.
3. The trial judge erred in law by delivering judgment outside the issued for determination which he himself formulated
In keeping with the provisions of the rules of this court, parties to the appeal filed their respective briefs of arguments. The learned counsel for the appellant filed his brief of argument on 20/12/06 dated 19/12/06 herein four issues were formulated for the determination of the appeal. The issues read:-
(a) What is the real issue to be determined in this case at the court below?
(b) Who raised the issue of the loan between the plaintiff and the defendant?
(c) Whether the learned trial judge placed the right onus on the plaintiff/appellant to call his son Barrister Chuks Anah to give evidence of the loan transaction between Plaintiff/Appellant and the Defendant/Respondent?
(d) Whether Barrister Chuks Anah was a necessary, credible, relevant witness in the transaction between the Plaintiff and the defendant so as to invoke Section 149(d) of the Evidence Act to dismiss the plaintiffs/appellant’s claim, if the plaintiff/appellant failed to call his son Barrister Chuks Anah to give evidence in the transaction?
It needs to be stated here however, that the appellant’s counsel filed Appellant’s Reply Brief on 13/6/2008 dated 8/4/2008 even though it was simply an expatiation of his main brief or is meant to fine tune the main brief or to amplify some arguments he proffered in the main brief.
On his part, the respondent upon being served with the Appellant’s Brief also filed the Respondent’s Brief of Argument on 28/2/07 dated 27/2/07. Therein, he distilled two issues for the determination of the appeal from the grounds of appeal filed by the appellant. The issues are:-
(i) Whether the trial court was right in dismissing the appellant’s suit and in also holding that the appellant’s failure to call his son, Chuks Anah as a witness in the matter amounted to his withholding of evidence as provided for in Section 149(d) of the Evidence Act.
(ii) Whether the court is father Christmas that would grant to the appellant a relief that he had not asked or sought for in his Notice and ground of Appeal.
It is worthy of note, that the appellant brief dated 7/11/2009 contained three grounds of appeal which I set out above without their particulars. But when formulating his issues for determination, he proposed four issues for determination. That is to say, the issue he raised exceeds the number of grounds of appeal he filed. The main purport of formulation of issue for determination in an appeal is, no doubt, aimed at enabling the appellate court to consider or treat a number of related grounds of appeal together. Sequel to that, it is improper for a party to formulate more issues than the number grounds of appeal than the grounds of appeal as done by the appellant in the instant case. In the circumstance therefore the superfluous issue for determination and the argument proffered on it ought to be discountenanced or liable to be struck out. See Goukin v. Ugochukwu Chemicals Industries Ltd (1993) 6 NWLR (Pt. 29) 55; AG Bendel State v. Aideyan (1984) 4 NWLR (118) 646; Adeleye v. Funoiki (1990) 2 NWLR (Pt. 131) 137; Adisa v. State (1991) 1 NWLR (pt.168) 490; NNPC v. A/C Ltd (2003) 2 NWLR (Pt. 805) 560. The first issue for determination raised by the appellant is, to my mind, not only superfluous but is also not covered by any of the three grounds of appeal filed by the appellant. It is trite law and indeed well settled, that issue not covered by any of the ground or grounds of appeal filed by the appellant or cross appellant must be based on the ground or grounds of appeal otherwise such issue is invalid and must be discountenanced. See Iwuoha vs. NIPOST Ltd. (2003) 8 NWLR (Pt.22) 308. Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208. Idika v. Erisi (1988) 2 NWLR (Pt. 78) 56). The first issue raised by the appellant is, for the above stated reasons, hereby discountenance and struck out. All arguments proffered on it are similarly discountenance and struck out.
On the other hand, the second issue proposed by the respondent is also not covered by any of the grounds of appeal filed by the appellant. There is no gainsaying that the respondent did not cross appeal and did not also file any respondent’s notice for him to raise such issue. The law is also trite that where a respondent has not filed cross appeal or given respondent’s notice, he does not have unbridled freedom or unrestrained power to go about raising issue(s) for determination outside the grounds of appeal filed by the appellant or which are not related or covered by the ground or grounds of appeal filed by the appellant or which are not related or covered by the grounds filed by the appellants. He can only adopt the appellant’s issues based on the ground of appeal or at best to frame his own issue(s) based on related to the grounds of appeal filed by the appellant. See Udeme v. Ugwu (1997) 3 MNLR (Pt. 491) 57, Udem v. Miehelletti & Sons Ltd. (1997) 8 NWLR (Pt. 872), AG Akwa Ibom State v. Essien (2004) 7 NWLR (872) 288; Atanda v. Ajayi (1989) 3 NWLR (Pt.111) 511. Therefore, the second issue raised by the respondent is for reason given above also incompetent and must and is hereby also discountenance and struck out along with the all the arguments raised on it.
Coming to the actual issues for determination that can properly dispose the appeal, I must say that the remaining subsisting issues the parties counsel do not appear to me to be all encompassing or are awkward and nebulous as would properly dispose of the appeal if this court chooses to be guided by any or all of them. It is now trite and well settled law that a court can and is in fact entitled to reformulate issue or issues formulated by a party or parties counsel with the aim of giving it a precision of clarity. The purpose of doing so, is simply to lead to a more judicious and proper determination of the appeal or to narrow issue or issues in controversy in the interest of accuracy, clarity and also brevity. See Musa Shar Jnr. & Anor v. Da Rapkwan & 4 Ors. (2000) 8 NWLR (Pt. 670) 685 or (2000) 5 SCNJ 101; Okoro v. The State (1988) 12 SC 191. Latunde & Anor v. Bellow Lajunfin (1989) 5 SC 59. Unity Bank Plc v. Edward Bonari (2008) 7 NWLR (Pt.1086) 372 at 401 or (2008) 2 SCM 193. I shall therefore reformulate or reframe two issues below which, to my mind, will properly determine the issues in controversy in the appeal. The issues are:
(a) Whether from the totality of the evidence adduced in the suit, the appellant can be said to have proved his claims at the lower court to entitle him to judgment?
(b) Whether failure of the appellant to call his son Chuks Aneh to testify is fatal to his case as would justify the court to presume that he was withheld because his evidence could be disfavourable to his (appellant’s) case under Section 149(d) of the Evidence Act?
The two reformulated issues in my view can comfortably be considered together and I will accordingly proceed to do same.
But before doing so, I think it will not be out of place if I reproduce below some relevant depositions in the pleadings of parties for ease of reference and clarity. However before I do so, my lords, permit me to observe that the plaintiff filed his Statement of Claims on 27/10/2005. I however rummaged through the record but am unable to see the defendant’s statement of defence. I however notice that the defendant has on 14/6/2006 with leave of the lower court filed a fifteen paragraph Amended Statement of Defence. It is also instructive to note that the appellant after being served with the defendant’s Amended Statement of Defence, he did not deem it right, proper or appropriate to file a Reply to the Amended Statement of Defence filed by the defendant and he also never amended his Statement of Claim so as to join issues with the defendant on some of the new or fresh issues raised or introduced in the Amended Statement of Defence which to my mind are weighty, far reaching and vital. I will come to this later.
Now let me come to the pleadings by parties. The appellant as defendant in his 14 paragraphs Statement of Claim made some averments as follows:
“3. The defendant took over stall No. I Ado Line strategically positioned at the Main Market, Onitsha as collateral for a loan of N5m which he said he gave the plaintiff’s son.
4. The Plaintiff on knowing this, invited the defendant, and the parties after a meeting at Onitsha reached a peaceful agreement that the plaintiff would take over the alleged loan of N500,000,000 (five million Naira) for which the defendant took the said allocation paper as a collateral.
5. The parties further agreed that the plaintiff would pay the loan within a reasonable time not exceeding six months.
6. On reaching the agreement the plaintiff made a part payment of the sum of N500,000.00 to the defendant by a cheque No. 509359 of 2nd August, 2004 which the defendant cashed on even date.
7. The plaintiff informed the defendant that he would be traveling overseas for medical check up and would return within about two months and hoped that the defendant would maintain the terms of their agreement.
8. Barely 3 (three) days after the plaintiff had left for the medical check up the defendant perhaps thinking that the plaintiff would not return alive, invited another “Onwa” to take over the stall if only he could pay the balance of the loaned block in complete negation of the agreement.
10. Before the plaintiff could return to the country, the defendant had changed the character of the stall and the name of the stall-holder in the Onitsha North Local Government Ledger.
12. The plaintiff then invited the defendant for a peaceful settlement and when he came he proved uncompromising.
13. The plaintiff later made the last effort to settle this matter out of court by again inviting the defendant but he rebuffed the invitation and has even refused to pay back the money contained in the plaintiff’s cheque No. 509359 which the defendant quickly cashed 2/8/04; whereof the plaintiff claims from the defendant as follows:- Responding to some of the above depositions, the defendant in his Amended Statement of Defence also deposed as below:-
“3. Paragraph 3 of the statement of claim is false and is hereby denied. In further answer thereto, the defendant avers that he bought the property from the plaintiff’s son, namely Mr. Chuks Anah for a valuable consideration.
The defendant hereby pleads all relevant documents of transfer between him/his agents and or privies and the said Mr. Chuks Anah in respect of the property expressly referred to by the plaintiff in paragraph 3 of his statement of claim.
4. Paragraph 4 of the statement of claim is false and hereby denied. The defendant shall at the trial put the plaintiff to the strictest proof of matters contained therein. The defendant repeats paragraph 3 above, to buttress it was an outright sale and no such agreement as alleged in paragraph 4 of the statement of claim ever took place at all.
6. The defendant avers that the sale agreement between him and Mr. Chuks Anah in respect of the property was clear and unambiguous and had nothing to do with the plaintiff.
The plaintiff who also answers and uses the name Sylvester Ezeweputa to purchase and sell properties as he deems fit paid N5,500,000 not 5,000,000 to Mr. Chuks Anah also appearing as (Kosisochukwu Micheal) who issued a purchase receipt for the above sum in the defendant’s name of Sylvester Ezeweputa. The said purchase receipt dated 23/1112005 is hereby pleaded.
The defendant avers further in answer to paragraphs 5 and 6 of the statement of claim that the said Chuks Allah also appearing as Kosisochukwu further executed a Deed of Transfer in respect of said market stall No. 1 Ado Line, Main Market, Onitsha in favour of the defendant as Sylvester Ezeweputa dated 23/12/2003, whereby he further confirm the outright sale of the stall to the defendant for the sum of N5,500,000 pleaded.
Besides, in order to enable the defendant as Sylvester Ezeweputa perfect the sale and effect a change of interest/ownership of the stall in the registry of the Onitsha North Local Government, said Chuks Anah as Kosisochukwu Miche on 23/12/2003 wrote the chairman of Onitsha North Local Government, notifying him of the transfer of interest/ownership of said stall, a copy of the letter of which he he gave the defendant as is customary.
Said letter of 23/12/2003 is hereby pleaded.
7. The defendant avers that he has always had a cordial relationship with the plaintiff. In this contest, the defendant gave the plaintiff an interest free friendly loan of N500,000 to enable him argument his budget for solving some financial problem. In return, the plaintiff gave the defendant post dated cheque whose number is 509359 of 2nd August 2004. The defendant avers that the said amount has nothing in relation with his sale agreement with Mr. Chuks Anah. The defendant shall put the plaintiff to the strictest proof of matters contained in paragraph 5 and 6 of the statement of claim.
9. Paragraph 8 of the statement of claim is not true.
The defendant is a Christian and never wished anybody to die especially the plaintiff who has been his friend and which friendship has been beneficial to both parties as demonstrated by the defendant’s friendly loan to the plaintiff.”
12. The defendant avers that before he bought the property he conducted proper investigation, which did not indicate that the plaintiff had any proprietary interest over the said property.” (Emphasis supplied by me)
Let me repeat here, that from the above depositions in the amended statement of defence, new or fresh issues were introduced by the defendant.
The plaintiff neither amended his statement of claim nor did he file any Reply to meet or join issues with the defendant on the said new or fresh issues raised in the Amended Statement of Defence.
Coming to the issues for determination I formulated supra, it is the submission of the learned senior counsel for the appellant that the issue of whether the deal between the defendant and Chuks Anah was mortgage or out right sale of the property in dispute was not the case for the plaintiff and such issue as introduced by the defendant was irrelevant. He also submitted that the trial judge was wrong when he held that failure to call Barrister Chuks Anah to testify could warrant a presumption under Section 149(d) of Evidence Act. The learned counsel also submitted, rightly in my view too, that it was the defendant that raised the issue of loan of N500,000.00 he gave to the plaintiff and therefore has the burden to prove the issue of loan but I will add here, if he were a counter-claimant in the suit. But in any case, he did not counter-claim.
The learned silk further submitted that the plaintiff’s case was that he gave the defendant the sum of N500,000.00 as part payment for the N5,000,000.00 advance to his son by defendant for mortgage or outright sale of the disputed property. He said the transaction and agreement to redeem the property was between him and the defendant in the absence of Barrister Chuks Anah. He said once the instant transaction as claimed by the plaintiff was between him (the plaintiff) and the defendant in which N500,000.00 was paid as part payment for the redemption of the alleged mortgaged property in the absence of Barrister Chuks Anah, then the latter is not a necessary or credible or relevant witness in the case. This, according to him, is because Chuks Anah can not give evidence on a transaction which he never witnessed. He then concluded his arguments by submitting that the plaintiff could not be caught by the provisions of Section 149(d) of the Evidence Act.
Replying, the learned counsel for the defendant/respondent argued that by virtue of the provisions of Section 135 (1) of the Evidence Act whoever approaches the court to give him judgment must prove his case.
And also the burden of proof is on the person who would fail if no evidence at all were given by either side. (See Section 136 of Evidence Act.) He therefore argued that the plaintiff has burden to prove that the respondent owned him N500,000.00 being his money had and received for consideration which had failed. He said he failed to discharge such burden.
He said the testimony of the plaintiff/appellant clearly showed that, his case is that his son Chuks Anah borrowed the sum of N5,000,000.00 from the respondent and had used the market stall as collateral in order to secure the said loan and when he wanted to pay the loan of his son, he made part payment of same by paying the N500,000.00. He also admitted that the plaintiff out rightly denied ever collecting any loan from him. The learned respondent’s counsel then argued that by Section 137(1) of Evidence Act, the burden then shifts backed to the appellant to dispel his contention that he did not collect N500,000.00 loan from him. He again argued that the plaintiff/appellant did not file any pleading to debunk his defence that the said sum was a loan he himself collected from him since fresh issue had been raised by him which said issue was joined and could only be thrashed by way of filing another pleading to meet the new issue and to also lead evidence in support of same to enable the court put it on imaginary scale and weigh same. He added that having not done so, the learned trial judge was right in holding that the appellant did not prove his claim and thus dismissing is suit. He said the appellant had all the opportunity to debunk the defence advanced by the defendant/respondent but he failed to do that.
On the trial court’s finding that in view of the plaintiffs/appellant’s failure to call Chuks Anah to testify could be invoked against him, the learned counsel for the defendant submitted that if Chuks Anah had been called his testimony could have assisted the trial judge in knowing where the truth laid in the matter as to whether he had actually sold the market stall to the defendant/respondent or it was merely mortgaged to the latter before he collected the said amount. The learned defendant’s counsel opined that in the circumstance the trial judge was right in presuming that the plaintiff’s failure to call his son Chuks Anah to testify for him since he bore the burden of proving his case, the court had no option than to dismiss the case. He cited Tahir v. Udeagbala Holdings Ltd. (2005) AFWR (Pt.2240) 120 at 122; WAB Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401 at 411; Emedo v. State (2002) 7SC (Pt.11) 162 at 166.
The learned Senior Advocate of Nigeria who is the plaintiff/appellant’s counsel had rightly in my view, succinctly summarized the two transactions that had surfaced in the instant case when he on second to the last page of his unpagenated brief of argument stated as follows:-
“It is clear that there are (sic) two different transactions.
(i) The transaction between the defendant and the plaintiff’s son Barrister Chuks Anah in respect of No. I Ado Line in the absence of the plaintiff.
(ii) The transaction between the plaintiff and the defendant in which N500,000.00 was paid by the plaintiff to the defendant as part payment for the redemption of the mortgaged property in the absence of Barrister Chuks Anah which is the cause of action.
I think in the surrounding circumstance of this instant case, this court and indeed the lower court is or ought to be more concerned with the second transaction above, since it is the one that actually concerned the plaintiff and was the pedestal on which he based his case/claims. This is not however to say, that the first transaction is totally irrelevant, or should be discarded since the defendant on the other hand used it as his defence on the plaintiffs claim on the second transaction. But attention should be more focused on the second transaction which is the substratum of the plaintiffs claim.
Then, the question that should now be addressed is “Did the plaintiff prove his claim on balance of probability to enable him obtain judgment? By the provision of Section 136 of the Evidence Act, the burden of proof in suit or proceedings lies on person who would fail if no evidence at all were given by either side. In the present case the appellant as plaintiff at the lower court therefore had a duty in order to obtain judgment, to prove that the respondent, as defendant thereat, owes him the sum of N500,000.00 as money had and received for a consideration which had totally failed and the amount of general damages he claimed in his pleadings. It always behoves on a party to give testimony in support of his pleadings in order to win his case. This is because it is trite law and is indeed a well settled law that he who asserts must prove his case with credible and unchallenged evidence.
In fact, in a civil case like the instant one, a party who wishes to succeed in obtaining judgment in his favour must adduce credible evidence since such cases are decided on the balance of probability. See Arase vs. Arase (1981) 5 SC 33 Elias v. Omo-Bare (1982) 5 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Sokwa v. Kporagbo (2007) NWLR (Pt.1086) 342.
The plaintiff/appellant relied on his ipsi dixit at the lower court to prove his case. He did not tender any document or evidence on the loan agreement for the mortgage between his son Chuks Anah and the defendant for which he alleged he paid to the defendant as part payment to redeem the said loan he alleged his son collected from the defendant/respondent. In fact part of his ipsi dexit as show on pages 30 and 31 of the record of proceedings when he testified as PWI on 25/4/2006 reads thus:-
“In 2004, the defendant gave the sum of N5,000,000.00 to my son on loan. My son gave to him the allocation paper of No. 1 Ado Line in the Main Market of Onitsha as collateral. The said allocation paper was worth N15,000,000.00 at the time.
When I learnt about the transaction, I invited the defendant to my house. I told him that I was going to take over the payment of the money. The defendant agreed to that proposal. I then gave him an open cheque for the sum of N500,000.00 as part payment thereof. He cashed the cheque that very morning…….. Within three days after I had traveled (sic) to overseas, I received information that the defendant had breached my aforesaid agreement with him. He did so by bringing in another person to take over the market stall aforesaid . . . . . . I demanded to have back from him the aforesaid sum of N500,000.00. He failed to pay back to me the sum of N500,000.00 despite repeated demand. I was therefore constrained to sue him.”
Under cross-examination by the defence, the appellant stated, inter alia, as follows:
“I reject the imputation that the transaction was an outright sale of the shop in question ….. … The defendant never gave me any friendly loan.”
It is pertinent to say here that during cross examination plaintiff/appellant was confronted with a document for identification purposes which he admitted that the signature on it is that of his son and he also said he could not remember the date of the oral agreement. The said documents which were later tendered and admitted as Exhibits D1 – D3 by the defendant/respondent clearly showed that the landed property in question i.e. the market stall was indeed sold by his son to the Defendant. In the light of Exhibits D1 – D3, the issue of part payment to redeem the loan on the alleged mortgaged market stall as claimed by plaintiff, can be said to have been controverted or debunked.
In presenting his defence, the defendant/respondent who was also the sole witness for the defence testified on 15/6/2006 and part of his testimony as contained on pages 32 to 33 reads as below:-
“I bought the shop, No. 1 Ado Line, Market of Onitsha from the plaintiff’s son, one Chuks Anah. That was on
23/11/2004. I bought the shop for the sum of N5,500,000.00. I paid him in cash and he issued me with a receipt. ….. The shop in question was not used as collateral for any loan. The said Chuks Anah also gave me the allocation paper of the shop. He gave me also an authority in writing to enable me transfer the ownership of the shop in my name in the records of the Local Government…. I never reached any agreement with the plaintiff. I never had any dealing with the plaintiff over the shop in question. On the 29/5/2006 the plaintiff approached me and told me that he needed the sum of N500,000.00 to enable him travel overseas. He told me that he had fixed account with a Bank which account was to ripe for payment on 30/7/2004. He said he was to give me a post dated cheque for 2/8/2004. I then collected the cheque from him and gave to him the cash of N500,000.00 in exchange thereof. The said N500,000.00 transaction had nothing to do with the shop transaction I had with the said Chuks Anah.”
Now from the foregoing, the plaintiff/appellant, in order to succeed in his suit had the burden to prove that there had actually been an agreement between his son and defendant for the mortgage of the disputed market stall to the tune of N5,000,000.00 since it was in that regard that he allegedly paid N500,000.00 to the defendant as part payment to redeem the loan agreement entered by his son Chuks and defendant/respondent. The plaintiff/appellant did not tender the purported mortgage/loan agreement between his son and defendant and also did not tender any receipt from the defendant to establish that the N500,000.00 he paid the defendant which the latter was in fact not denying, was meant to be part payment to redeem the loan he said his son Chuks Anah had collected before surrendering the allocation for stall papers as collateral. To my mind, by his stand as learned silk, he ought to have known more than any other person the implication of giving the N500,000,00 without collecting receipt or at least an acknowledgement of the said sum and that it was meant to be part payment of his son’s loan as he claimed.
From the pleading of the defendant and his testimony supra, the defendant is posing a defence that the money (N500,000.00) paid to him by the plaintiff/appellant was simply a repayment of a friendly loan he (plaintiff) had earlier collected from him when going abroad. From the state of pleading, it could be said that the defendant/respondent put a defence as to what the sum of N500,000.00 represented as opposed to what the plaintiff/appellant claimed it was meant for. At that stage therefore, the plaintiff had to go extra mile to reply to the new issues introduced by the defence as raised in his Amended Statement of Defence as well as the evidence he led to support his newly introduced issues. It should be borne in mind, that the defendant had tendered some documents, Exhibits D1 – D3 to establish that Chuks Anah in fact sold the stall to him but not that he mortgaged same to him to collect a loan of N5,500,000.00 from him. On the other hand the plaintiff did not tender any document to support his assertion that the amount he paid was actually a part payment of the loan.
With the stage of evidence adduced by the defendant, he established that the stall was in actual fact sold to him by Chuks Anah. I think the issue of payment of N500,000.00 to redeem the mortgage would therefore be of no
moment and would not arise if the stall had already been sold by Chuks Anah to the defendant/respondent.
Now coming to the issue of friendly loan posed by the defendant to the plaintiff, the plaintiff submitted that the defendant failed to prove that he collected friendly loan from him. With due respect to the learned senior advocate of Nigeria that issue could be more relevant if the defendant had made a counter claim which is not the position in the instant case. He is merely advancing it as his defence to the claim in the plaintiff’s suit. The plaintiff, as the claimant and assertor still has the burden to prove his case through credible evidence in order to obtain judgment and it is not for him to rely on the weakness or weaknesses of the defendant’s case. See Harka Air Services Ltd v. Keazor (2006) 1 NWLR (Pt. 960) 160. Thus, the defendant’s inability to call Chuks Anah testify is not fatal to his case since he is not a counter-claimant as would make it incumbent on him to call Chuks Anah. At any rate he even tendered the documentary Exhibit to establish sale of the stall and his authority given to him by Chuks Anah to take to local government for change of ownership which said documents or exhibits were admitted III evidence without any objection from the plaintiff/appellant.
It is apt to emphasize that the plaintiff is the only claimant. It is his own case/claim hence the law places the burden of proof on him and as I remarked above, the proof must be done by him through credible evidence.
In the surrounding circumstance of the case, Chuks Anah, to my mind should have been called by the plaintiff to clarify whether the property was sold or mortgaged by him to the defendant since the entire case revolves on his testimony. If he had been called, he would have cleared the issue whether the stall was mortgaged by him or sold by him to the defendant. This is not to say that the plaintiff could not prove his through his ipsi dexit.
However, the circumstance of the instant case when both parties’ position revolves on him, it would have been desirable if the plaintiff called his son chuks Anah to testify in the suit. The plaintiff did not deem it proper to do so; I am therefore inclined to agree with the learned trial judge when he said in his judgment as below:-
“I am not unmindful of the fact that generally, no particular number of witnesses is required for proof of any facts unless expressly provided by the law. But in the present circumstances, in absence of the evidence of the said Chuks Anah, who is very much available but not called to testify, I am compelled to invoke the provision of Section 149(d) of the Evidence Act against the plaintiff to the effect that if he had been called his evidence would have been against him.”
Thus, in the light of all that I have said above, I am also of the firm view that the plaintiff/appellant failed to prove his claims on the preponderance of probabilities to entitle him to judgment. His failure so to do, as held by the learned trial judge, rendered his suit to be unmeritorious and liable to be dismissed as rightly done by the learned trial judge. I shall also do just that.
On the whole, I adjudge the appeal unmeritorious. It therefore fails and is accordingly dismissed by me. The decision of the trial/lower court in Suit No. 0/547/2005 is hereby affirmed. I make no order on costs, so each party should bear his own costs.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Amiru Sanusi JCA and I am in agreement with him that the appeal is unmeritorious and should fail. It fails and is accordingly dismissed and the judgment of the lower court in Suit No. 0/547/2005 is hereby affirmed. I make no order as to costs.
MOHAMMED L. TSAMIYA, J.C.A.: I have read before now in draft the judgment delivered by my learned brother SANUSI A. JCA, in this appeal. I agree with him and for the reasons he has given; I also dismiss the appeal and affirm the judgment of the lower Court.
Appearances
R. C. OKAFOR (MISS)For Appellant
AND
C. C. OGUEJIOFOR ESQ.For Respondent