UDOH & ANOR v. NWACHUKWU & ANOR
(2020)LCN/15665(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, May 15, 2020
CA/C/204/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
HammaAkawuBarka Justice of the Court of Appeal
Between
1. MR. ELIJAH UDOH 2. KAL-VEGAS KAPUCHINO LTD APPELANT(S)
And
1. JUDE NWACHUKWU 2. JAMEON NIGERIA LTD RESPONDENT(S)
RATIO:
THE CREDIBILITY OF AN EVIDENCE
Mainagge Vs Gwamma (2004) 7 SC (Pt.11) 76 at 92, where it was held:
“It is however settled law that where evidence is given by a party, who has the opportunity to do so and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things, the Court should accord such credibility to such evidence.” ITA GEORGE MBABA, J.C.A.
DISMISSAL OF THE CLAIMS FOR FAILURE TO PROVE THE FACTS OF THE CASE
It is obvious from the above facts, that the learned trial Court in my opinion, handled the hearing of this case very poorly, and made it worse in the judgment it reached, dismissing the claims of the Claimants (Appellants) on the speculation (by the Court) that they (Claimants) failed to prove that they supplied the goods, the subject matters of LPOS (Exhibits A1 to A10) to the Respondent. ITA GEORGE MBABA, J.C.A.
FAILURE TO LEAD EVIDENCE AT THE TRIAL IS DEEMED TO HAVE ABADONED THE PLEADINGS
Of course, where a party fails to lead evidence at the trial where the trial was founded on pleadings, he is deemed to have abandoned his pleadings and whatever concessions which might have been reached at the point of pre-trial conference, except where such points or aspect of the pleadings hadexpressly admitted the case of the opponent (which can be founded and relied upon by the opponent). This is because pleadings (facts) are not synonymous with evidence needed to establish a case. See Atagbor Vs Okpo&Ors (2013) LPELR – 20207 CA; Akinbade& Anor Vs Babatunde &Ors (2017) LPELR – 43463 (SC) and Ifeta Vs SPDC Nig. Ltd (2006) LPELR – 1436 SC, where it was held:
“It is noted that pleadings cannot constitute evidence and a defendant, as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff, is deemed to have accepted and rested his case on the facts adduced by the Plaintiff, notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced are deemed to have been abandoned, as mere averments without proof of such facts, unless such facts are admitted.” See Woluchem Vs Gudi (1981) ITA GEORGE MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): Appellants filed this Appeal, on 19th January, 2018, against the decision of Cross River State High Court, in Suit No. HC/7/2014, delivered on 18th October, 2017 by Hon. Justice Eyo E. Ita, wherein the Learned trial Judge, dismissed the claims of the Claimants (now Appellants), as having not been proved.
At the Court below, Appellants, (as Claimants) as per the writ of Summons, filed on 21/2/2014, and Statement of claim had claimed against the Respondents (as Defendants) as follows:
(1) N40 Million being balance on materials supplied to the defendants by the Claimants
(2) 21% interest, monthly, until judgment.
(3) 10% post judgment interest.
(4) N30 Million damages.
Parties exchanged pleadings – the defendants filing their Statement of defence on 4/6/2014, and the Appellants filing reply to the defence on 19/9/2014. The matter went for trial for the first time on 8/7/2016. At the pre-trial conference, the Claimants tendered Exhibits A, B, C and Exhibit 1. The Defendants in turn, tendered a bundle of documents, filed in Suit No.HOW/340/2012, as Exhibit 2. The Claimants called one witnesses, who tendered Exhibits 3A and 3B. The case was adjourned after the evidence in-chief by the PW1 for cross examination, but the Defendants failed to show up for the Cross examination of PW1 and after 3 adjournments for that purpose, the Claimants closed their case and prayed for judgment. The trial Court agreed and adjourned the case for judgment. In its judgment, on 18/10/2017, the trial Court said:
“Although the defendants neither cross examined the Claimants witness nor testified in support of their case, I will nonetheless make use of the documents they tendered at the pre-trial conference, which documents were admitted by consent of the claimants, in this judgment. Exhibits A1 – A10 show that the 2nd defendant in this case, Jameon Nig. Ltd, issued L.P.O.S to the 2nd Claimant in this case, KAL-VEGAS KAPUCHINO LTD, to supply the materials stated thereon, to the 2nd defendant. Exhibits B1 – B10 are invoices sent to the 2nd Defendant by the 2nd Claimant for payment for supplies made to the 2nd defendant on the LPOS. The 2nd defendant’s Agent signed for andcollected the invoices. However, nowhere is it shown that the 2nd defendant received the materials stated on Exhibits A1 – A10 from the 2nd defendant. That becomes very important because the defendants say at paragraph 2(a) (b) and (c) of their statement of defence, filed on 4/6/2014, that the claimant did not supply any material whatsoever to the defendants. With such denial, the claimants have to prove delivery of the materials to the defendants. The state of the pleadings in this case demands strict proof of delivery of the materials to the 2nd defendant. Exhibits B1 – B10 show that 2nd Claimant made demands for payment on those LPOS. There is no dispute about those in this case. The 2nd defendant says it is not liable to pay on Exhibits B1 – B10, because the materials stated on Exhibits A1 – A10 were never supplied to the 2nd defendant by the 2nd Claimant. That is the only dispute in this case. The question that presents itself for resolution is whether or not the 2nd defendant received the goods listed in Exhibits A1 – A10 from the 2nd claimant. The 2nd claimant, who wants payment on the LPOS, has the burden of satisfyingthis Court, that it supplied the goods listed in the LPOS to the 2nd defendant. The claimants having failed to do so, they have failed to prove their entitlement to the claims therein. In consequence, the claims herein, having not been proved, fail in their entirety and are hereby dismissed.
I assess and award cost of this action at N50,000.000 against the Claimants, jointly and severally, because after reading paragraph 2(a) (b) and (c) of the Statement of defence, where delivery of the goods were denied, if the Claimants had no means of proving delivery of the goods on Exhibits A1 – A10 to the defendant, the case of the claimants failed there and then, that is, since 2014 when that statement of defence was filed.” See pages 37 – 38 of the Records of Appeal.
That is the judgment Appellants appealed against, being aggrieved, as per their notice of Appeal on pages 39 – 41 of Records of Appeal, disclosing 3 grounds of Appeal. Appellants filed their Brief of arguments on 4/6/2018 which was deemed duly filed on 7/3/19. They also filed a Reply brief on 23/5/2019, upon being served with Respondents’ Brief, filed on11/4/2019. The Respondent also obtained leave to file Respondents’ Notice to affirm that the judgment of the Lower Court delivered on 18/10/2017, could still be made on grounds other than those relied upon by the Court. The said Respondents’ Notice was filed on 11/4/2019 and deemed duly filed on 4/5/2020. The Reply Brief by the Appellants was also deemed duly filed on 4/5/2020, the day this Appeal was heard.
Appellants distilled two Issues for the determination of the Appeal, as follows:
(1) Whether the Appellants proved their case.
(2) Whether the lower Court was right to rely on the Statement of Defence and oath deemed abandoned.
The Respondents adopted the said two Issues for the determination of the Appeal. But neither the Appellants, nor the Respondents formally related the said issues for determination to the grounds of Appeal. However, a close perusal of the 3 grounds of the Appeal shows that the Issue one was derivable from grounds 1 and 3 of the Appeal, while Issue 2 was derivable from ground 2 of the Appeal. The 3 grounds of the Appeal (without their particulars) stated, as follows:
(1) The learned trial Judgeerred in law to have dismissed the Appellant’s case when the evidence before the Court was not controverted.
(2) The learned trial Judge erred in law to rely in (sic) the Statement of defence of the Respondents in the course of the judgment.
(3) The learned trial Judge erred in law to hold that there was no evidence of supply of the goods by the Appellants to the Respondents.”
It should however be noted that the parties (particularly Appellants) were in grave error (which could be fatal to the Appeal) to have failed to relate their issues for the determination of the Appeal to their grounds of the Appeal, formally. If this Court did not take up the extra pains to read through the records and processes, to establish the link between the said grounds of the Appeal and the Issues, the Appeal would have been struck out for incompetence. Appellant would not blame this Court for the consequences of their error to relate the issues to the grounds of Appeal. We have stated several times that Appellant must endeavour to relate or marry his Issue(s) for determination of Appeal to the ground(s) of Appeal, to have a valid argument of anappeal. See Omenazu Vs Omenazu&Ors (2019) LPELR – 47282 CA:
“… Counsel should always endeavor to formally relate their Issue(s) to the ground(s) of Appeal, to save the Court from speculating on it, and to reduce the work-load of the Appellate Court. See the case of Ejiogu Vs Nwauzoagba&Ors (2018) LPELR – 44577 (CA). Diamond Bank Plc Vs HRH Eze (Dr.) Peter Opara&Ors (2018) LPELR – 43907 (SC); UBN Ltd Vs Odusote Book Stores Ltd (1995) NWLR (Pt.421) 563.”
Arguing the Appeal on 4/5/2020, the Learned Senior Counsel for the Appellants, Chief F.O. Onyebueke, on Issue one, called our attention to the fact that the Respondents did not defend the Suit at the Lower Court; he said that Appellants adopted their statement on oath and was not cross examined. Thus, Appellants had satisfied the Court as to the existence of the facts in the case. He relied on Chief Awuse Vs Dr. Odili&Ors (2005) ALL FWLR (Pt.261) 248 at 316. Counsel said that in this case, Appellant had pleaded and testified along with their statement on oath in respect of the invoices, how the materials were supplied and signed for by theagent of the Respondents, Mr. Emmanuel Effiong – see (paragraph 4 of the Statement of Claim).
Counsel said that evidence was not contradicted or controverted by the Respondent and by law, had established the fact therein. He relied on Nigerian Dynamic Ltd Vs Agucha (200) FLWR (Pt.104) 630 at 659, which held that “Unchallenged or uncontradicted evidence by opposing party, who had opportunity to controvert same, would be believed.”
He said that what the law requires is that the evidence is credible and believable. He relied on Uzor Vs Boniface Anyika& Co. Lagos Nig. Ltd (2002) FWLR (Pt.107) 1155 at 1161; Okoebor Vs Police Council (2003) 12 NWLR (Pt.834) 444; Mainagge Vs Gwamma (2004) 7 SC (Pt.11) 76 at 92, where it was held:
“It is however settled law that where evidence is given by a party, who has the opportunity to do so and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things, the Court should accord such credibility to such evidence.”
Counsel said the evidence by the Appellants was credible and believable; that there was evidence ofthe Local Purchase Order (LPO) signed by the Agent to the Respondents; and there was evidence of issuance of Invoices signed by the parties and there was evidence of issuance of cheques to the Appellants by the 1st Respondent, and in all these, the Respondents did not contradict or controvert the said pieces of evidence by Appellants, either by way of cross examination or by their own evidence, to counter the same. He urged us to resolve the Issue for Appellants.
On Issue 2, Counsel said that the statement of defence, filed by the Respondent on 4/6/2014, by law, was deemed abandoned, since the Respondents did not lead any evidence on it; and so the trial Court was wrong to rely on it and to use it to make the case for Respondents. He relied on Udom Vs Umana (No.1) (2016) NWLR (Pt.1526) 179 at 218:
“Averments in pleadings which are unsupported by evidence are unavailable to the pleader as they go to no issue and must be discountenanced. The rationale is that an averment in a pleading is not evidence and cannot be substituted for evidence. Such an averment does not therefore amount to proof unless it is admitted.”
Counsel said the pleadings of the Respondents, having been abandoned, should have been discountenanced by the trial Court together with the statements on oath by the Respondents, having not been adopted as evidence in the Court. He relied on Aregbesola Vs Oyinlola (part 1253) P.458 at 562 – 563; GEINT’L OPERATIONS LTD VS Q-OIL & GAS SERVICES (2015) 1 NWLR (Pt.1440).
Counsel said that the trial Court actually descended into the arena of conflict, and conducted the case for the Respondent, when it relied on the abandoned pleadings of the Respondents to dismiss the Appellants’ claim. He urged us to resolve the Issues for Appellant, set aside the judgment and enter judgment for the Appellants instead. He noted that the Respondents had even issued cheque of N40Million for the balance of the contract sum to the Appellants, but the cheque did not go through.
Responding, Counsel for the Respondents, Emeka Orafu Esq, (who settled the brief) on the two Issues, which he argued together, said the trial Court was right to dismiss the case; that the onus of proof was on the Appellants and by law, Appellants needed to succeed on the strength of their case,not on the weakness of the defence. He relied on Momoh &Ors Vs Umoru&Ors (2011) LPELR – 8130 SC; Anyafulu&Ors Vs Meka&Ors (1962) LPELR – 25101 SC.
Counsel said that the Appellants failed to prove that they supplied the goods; he said that even if the Court did not consider the Statement of defence, the Appellant would still not have succeed to prove their claim on the strength of their case; Counsel said that the trial Court had assessed the case of the Appellants before it came to the conclusion it reached.
Counsel said that Appellants had placed much reliance on Exhibits A1 – A10 (the LPOS), Exhibits B1 – B10 (the Invoices) and Exhibits C1 – C15 (the Cheques); that they (Respondents) had denied issuing the LPOS, and even then, they insisted on delivery of the goods as specified in the Exhibits (LPOS) and Appellants were bound to comply with the format in the agreement. He relied on the case Enemchukwu Vs Okoye &Anor(2016) LPELR – 40027 CA; A.G. Gombe State Vs Gadzama (2014) LPELR – 23423 CA. Counsel said 1st Appellants cannot be allowed to start giving evidence that he wasintroduced to Mr. Emmanuel Effiong as the only person to sign LPOS, by the 1st Respondent, as that would be at variance with the LPOS.
On Exhibits B1 – B10 (Invoices), Counsel said there was no place the Appellants showed that the said goods were examined by who, and no acknowledgement of receipt of the supplied goods. He said that no agent of the Respondents examined the goods supplied and none acknowledged the receipt of the goods; that there was fraud between the Appellants and the said Emmanuel Effiong, to defraud Respondents and collect money from the Respondents, as the Invoices (Exhibits B1 – B10), collected by Emmanuel Effiong never mentioned the attachment of the white copy of the LPOS, and did not state that any pink copy was submitted to the account department. Rather, Counsel said that Emmanuel Effiong issued the LPOS and received Invoices in accomplishment of their fraudulent intent to collect money from the Respondents without supply of the materials.
On the Exhibits C1 – C15 (the cheques) on pages 33 – 34 and 83 – 84 of the Records, Counsel said the cheques belonged to Ebugeametric Nig. (not the 2ndRespondent) and have no nexus to the contract; that the cheques have no relationship with the 2nd Respondent.
He urged us to dismiss the Appeal.
Respondents’ Counsel, at the hearing of the Appeal, represented by Offiong O. Offiong Esq (who held the brief of Emeka Orafu Esq), further referred us to the Respondents’ Notice, but urged us to dismiss the Appeal, and uphold the judgment of the trial Court or order for a retrial.
In the paragraph 5.00 of the Respondents’ Brief, Counsel urged us as follows: “to uphold the judgment of the Court below, on the grounds that the Court was right that the Plaintiffs failed to prove supply of the materials and on other grounds raised in the Respondents’ Notice.”
In the Respondents’ Notice, the Respondents urged us to affirm the judgment on the following other grounds:
(1) That the Appellants failed to prove any contract, with the Respondents, considering the LPOS (Exhibits A1 – A10 and the cheques Exhibits C1 – C5).
He argued that the LPO’s explicitly stated on the foot that:
“All purchased materials must be examined upondelivery and receipted an (sic) authorized personnel. Purchased Order of N10,000.00 or over must be signed by two authorized personnel” etc.
He claimed that the Exhibits B1 – B10 (Invoices) received by the Respondents through Emmanuel Effiong had no indication that any of the LPO was attached, and the said that Emmanuel Effiong, who received them was not the accountant as indicated in the LPOS; he added that nothing showed that there was any examination of the product by any officer of the 2nd defendant, and there was no receipt of acknowledgement of supply as indicated on the said LPOS. Counsel also said that Exhibits C1 – C5, the cheques which Appellants claimed covered part of the money owed to them and was paid have no nexus to the 2nd Respondent; that the said cheques belonged to Ebugeometric Nig. and has nothing to do with Respondents.
In the Reply Brief, which was largely a rehash of the arguments, Appellants cited more cases to show that:
“… the effect of failure of a party to call evidence in support of his own averment in a pleading is that such averments are abandoned.” Yusuf Vs Oyetunde&Ors(1998) 12 SCNJ 18.
That that is so, since an abandoned averments cannot be taken as evidence; as the witness statement on oath is not evidence unless it has been duly adopted by the witness at the trial – Majekodunmi&Ors Vs Ogunseye (2017) LPELR – 42 (sic); Akpokiniovo Vs Agas (2004) 10 NWLR (Pt.881) 394.
RESOLUTION OF ISSUES
I adopt the two Issues distilled by the Appellants for the determination of this Appeal, and shall take them together.
The facts of the case have already been mirrored in the Briefs by the parties; that the parties had a contractual relationship, as evidenced in the Local Purchase Order (Exhibits A1 – A10), though Respondents’ Counsel now appears confused, on whether to admit or deny the existence of the contract. There is also evidence of collection of the Invoices (Exhibits B1 – B10) by Mr. Emmanuel Effiong, said to be Agent of Respondents (introduced to Appellants by the Respondents), and the said Invoices showed how the materials required by the LPOS, were supplied to the Respondents, and signed for Respondents by the said Emmanuel Effiong who also issued the LPOS. Thereis also evidence of part payment for the contract.
The evidence by the 1st Appellant (PW1) as per his statement on oath (adopted by him in Court, on 2/5/2017, as per the Additional Records of Appeal, page 85 thereof) which stated as follows:
(1) That I am the managing Director of the 2nd claimant…
(2) That I know the Respondents, who are resident in Port Harcourt …
(3) That the second claimant carried out the transactions with the Defendants and the business address of the claimants is plot 143B Asari Iso Layout, Calabar.
(4) That 2nd Claimant is an incorporated body with the powers to sue and be sued and right to enter into contract.
(5) The 1st Defendant is the Managing Director of the 2nd Defendant…
(6) That I supply (sic) material to the Defendants which the Defendants used for the execution of contract at the Run way resurfacing project of the Margret (sic) Ekpo International Airport (sic) sum involved in the contract was the sum of N75,239,000.00 (Seventy Five Million, Two Hundred and Thirty Nine Thousand Naira), out of which the Defendants made some payment and remaining a balance ofN40,000.000.00 (Forty Million Naira). I plead the Invoices showing how the materials were supplied and signed for by Mr. Emmanuel Effiong, whom the 1st Defendant introduced to me as his Deputy Managing Director, and the only person to sign for invoices and local purchase orders on behalf of JAMEON NIG. LTD in respect of the Defendants contract at Margret (sic) Ekpo International Airport Run way Calabar.
(7) That I was issued with Local Purchase Order signed by Mr. Emmanuel Effiong, some of the local purchase orders are pleaded and they are LPO of 22/3/2011, 15/4/2011, 20/6/2011, 6/7/2011, 12/7/2011 and their various amounts are mentioned.
(8) That I supply (sic) the materials and to that effect, invoices were signed by the Defendants through Mr. Emmanuel Effiong: I plead the invoices, with the following dates 24/3/2011, 20/4/2011, 21/4/2011, 6/6/2011, 23/6/2011, 30/6/2011, 13/7/2011 and 15/7/2011. This is a notice on the Defendants to produce the original copies of the Invoices.
(9) That I state that the Defendants have failed and neglected to pay the balance of the N40,000,000.00 (Forty Million Naira) despite repeated demands. I cause (sic) myformer Counsel to demand in writing from the Defendants the payment of the said sum. I rely on the letter of 27/4/2012 from the chambers of Enape, Okoro & Associates to the Defendants. This is a notice on the Defendants to produce original copy of the said letter.
(10) That I got the money used in the series of the supplies through loans from individual which they(sic) are paying interest. I had made series of trips to both Port Harcourt and Owerri in the pursuit for the payment and one of the occasions he (sic) was attacked by hoodlums and upon that the Defendants failed to settle the debt.
(11) That the parties agreed that in the event of the failure by the Defendants to pay the money as stipulated in the various local purchase orders the interest shall be 21% interest monthly.
(12) That the Defendants issued Zenith Bank Cheques to the tune of N40,000,000.00 (Forty Million Naira) to me in the satisfaction of the debt. But unfortunately, the cheques bounced on presentation. I plead Zenith Bank cheques with the following dates 2/1/2012, 2/1/2012, 2/1/2012, 2/1/2012 and 2/1/2012…
(13) That I aver that the total sum ofN40,000,000.00 (Forty Million Naira) was to be cashed on 2/1/2012, but during that period any amount from N10,000,000.00 (Ten Million Naira) would not be cashed over the Counter, and as a result the parties agreed to split the amount to a cashable amount from the Counter.
(14) The Defendants have failed to pay the balance of the debt and I have suffered damages…” (Exhibit 3A)
(See pages 9 and 10 of the Additional Records, transmitted by the Respondents).
1st Appellant also had adopted another statement on oath which he made on 19/9/2014 in the case, as Exhibit 3B. See pages 24 to 25 of the Records of Appeal transmitted by the Appellants.
After the taking of the evidence of 1st Appellant, the case was adjourned to 1/6/2017, for continuation of hearing, and hearing notice ordered to be issued to the Respondents. It was further adjourned, again and again, and on 4/10/2017, Counsel Claimants prayed that the Court should proceed to judgment, since the defendant did not want to present their case. The Court agreed with him and adjourned the case to 18/10/2017 for judgment (See pages 85 – 86 of the Additional Records ofAppeal).
On the 18/10/2017 when the case came up, J.U. Arung Esq; appeared for the Appellants (with him C.E. Nweche) and I.U. Eyong appeared for the Respondents and told the Court he had 2 motions dated on 31/5/2017 and 12/10/2017, respectively. But the Court quickly told Counsel for Respondents that the case was adjourned for judgment, not for motions, and went ahead to deliver the judgment, dismissing the case of the Claimants!
It is obvious from the above facts, that the learned trial Court in my opinion, handled the hearing of this case very poorly, and made it worse in the judgment it reached, dismissing the claims of the Claimants (Appellants) on the speculation (by the Court) that they (Claimants) failed to prove that they supplied the goods, the subject matters of LPOS (Exhibits A1 to A10) to the Respondent.
Upon coming to a decision that the Defendants (Respondents) were not serious about defending the Suit, and so adjourned the case for judgment on 18/10/2017, the general understanding and the import of that decision was that the trial Court was going to consider the merits of the case based on the available evidence before theCourt supplied by the Claimants. That available evidence was that of the 1st Appellant (the only witness) as per his statements on oath (Exhibits 3A and 3B), adopted on the 2/5/2017, which was neither challenged nor controverted, either by cross examination, or by any evidence adduced by the Respondents (as defendants) to Counter same. And the trial Court rightly found when it said:
“At the trial the claimants called one witness who tendered Exhibits 3A and 3B. After his evidence in chief, the matter was adjourned for cross examination of the witness. After 3 adjournments and the defendants not showing up to cross examine the witness, the claimants closed their case and asked me to proceed to judgment with which I agreed and adjourned this matter till today for judgment.” Page 88 of the Additional Records of Appeal.
Thereafter, the Learned trial Judge took a different trajectory, which appeared strange and contrary to all known principles of law and rules of procedure, when he said:
“Although the defendants neither cross examined the claimants’ witness, nor testified in support of their case, I will nonetheless make useof the documents they tendered at the pre-trial conference, which documents were admitted by consent of the claimants in writing this judgment.” (Page 88 of the Additional Records)
That is never done as the Respondents had not adduced any evidence in the case before the Court, and whatever preliminary facts agreed upon at the pre-trial conference was only to form the basis of the trial, the pre-trial being only an informal meeting at which Counsel for the opposing parties confer with the Judge, to work towards the disposition of the case by discussing matters of the evidence needed to be used and narrowing the Issues to be faced at the trial. See Afribank Nig. Plc Vs Ubana (2011) LPELR – 3632 (CA); Ali Vs NDIC (2014) LPELR – 22422 CA.
In the case of Nnamele&Ors Vs Njoku &Ors (2018) LPELR – 43987 CA, we held that:
“The essence of pre-trial is to identify and delineate the boundaries of issues to be tried at the hearing of the Suit and how to approach the trial by the Court, and after agreeing on the issues to be tried and the direction of the trial, it appears improper, wrong and unfair, in my view, toabandon the hearing of the case of the Plaintiff (the aggrieved) and entertain a technical point, introduced simply by the defence, meant to truncate the hearing of the Plaintiffs case, and to use it to determine the claim of the Plaintiff, without hearing him on his case… the essence of front-loading and pre-hearing was stated – that:
“It affords the parties an opportunity… to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues, where appropriate. See also Onyedebelu Vs Nwaneri&Ors (2008) LPELR – 4793 CA… the essence of pre-hearing session cannot be over emphasized. The process enables both the Court and parties to scale down the areas of dispute by consenting on the important issues that require full investigation and trial…”
Of course, where a party fails to lead evidence at the trial where the trial was founded on pleadings, he is deemed to have abandoned his pleadings and whatever concessions which might have been reached at the point of pre-trial conference, except where such points or aspect of the pleadings hadexpressly admitted the case of the opponent (which can be founded and relied upon by the opponent). This is because pleadings (facts) are not synonymous with evidence needed to establish a case. See Atagbor Vs Okpo&Ors (2013) LPELR – 20207 CA; Akinbade& Anor Vs Babatunde &Ors (2017) LPELR – 43463 (SC) and Ifeta Vs SPDC Nig. Ltd (2006) LPELR – 1436 SC, where it was held:
“It is noted that pleadings cannot constitute evidence and a defendant, as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff, is deemed to have accepted and rested his case on the facts adduced by the Plaintiff, notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced are deemed to have been abandoned, as mere averments without proof of such facts, unless such facts are admitted.” See Woluchem Vs Gudi (1981) 5 SC 291; Basheer Vs Same (1992) 4 NWLR (Pt.236) 491; Uwegba Vs A.G. Bendel State (1986) 1 NWLR (Pt.16) 303; Adegbite Vs Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 590 and FCDA Vs Naibi (1990) 3 NWLR (Pt.138) 270 at281.” Per Mohammed JSC
The law is that any averment in a pleading, not supported by evidence must be struck out, being deemed abandoned and useless. SeeOnube Vs Asuakor&Ors (2019) LPELR – 47231 (CA) Per Ekanem JCA; Olarewaju Vs Bamigboye (1987) 3 NWLR (Pt.60) 353.
For the trial Court to therefore undertake to make a case for the Respondents, making use of their abandoned pleadings (statement of defence) and relying on some purported and imaginary Exhibits, not tendered in the case by any witness to suggest that the Respondents had denied the delivery of the materials in the LPOS, was in my view, a crass demonstration of poor knowledge of procedure and a descent into the arena of conflict to make case for a party, unsolicitated. The rule is that the Court must always remain impartial and refrain from taking sides, to generate evidence, to support any party in a case. See the case of Uzoma Eweto Vs State (2018) LPELR – 44990 (CA); Amadi Vs A.G. Imo State (2017) LPELR – 42013 SC; Suberu Vs State (2010) LPELR – 3120 (SC).
It should also be noted that the allegation that Appellant did not prove the supply ofthe goods to Respondents was a complete contradiction to the findings of the same trial, who held as follow:
Exhibits A1 – A10 show that the 2nd defendant in this case, Jameon Nig. Ltd, issued L.P.O.S to the 2nd Claimant in this case, KAL-VEGAS KAPUCHINO LTD, to supply the materials stated thereon, to the 2nd defendant. Exhibits B1 – B10 are invoices sent to the 2nd Defendant by the 2nd Claimant for payment for supplies made to the 2nd defendant on the LPOS. The 2nd defendant’s Agent signed for and collected the invoices. (Page 37 of the Records)
As it were, the case presented by the Appellants at the Court below, as per the only available evidence, was unchallenged and incontroverted. What the Court needed to consider was whether the evidence was credible and believable, and whether the Claimants had established their case on the strength of their evidence, the absence of defence or weakness of defence, notwithstanding, which I think was simple to make out. In the face evidence adduced, backed by documents, namely the LPOS (Local Purchase Orders) issued by the Respondents to the Appellants for supply of the goods and the Invoices,raised by the Appellants to show the supply of the goods, which invoices were received by Mr. Emmanuel Effiong (Agent of the Respondents, who also Issued the LPOS to the Appellants); plus the fact that the Respondents had made part payments for the supplies, and the outstanding N40,000,000 (Forty Million Naira) was even acknowledged by the Cheques, raised by the Respondents to settle the debt, but the Cheques were dishonoured. I cannot see any credible defence by the Respondents in this case to the settlement of this money demand.
If Respondents had any problem with their Agent, Mr. Emmanuel Effiong, in the course of executing the contract, they should have been there to lead evidence on same, and that in my view, cannot not be visited on the Appellants to suggest a denial of the contract, or denial of the supply of the materials. In any case, the Appellants had led clear evidence to establish the contract and the supply of the materials ordered by the LPO, as per the Invoices collected by Mr. Emmanuel Effiong, Agent of the Respondent. And the Court had made findings to that effect. That evidence was neither denial, nor controverted. The said Invoicesreproduced on pages 21 to 30 of the Additional Records of Appeal (each page carrying separate Invoice) show evidence of supplies of the said materials to the Respondents and the amount/cost of the materials supplied in each case. The page 21 (as the case with the other pages) carries the Invoice by the Appellants, issued to the Managing Director of the 2nd Respondent, as follows:
“INVOICE
Having successfully completed the supply of 600 tons of 5/15 chippings based on your N0: CAP 105 to your Margaret Ekpo Airport Project site, we hereby submit our invoice for the sum of Four Million, Two Hundred Thousand Naira (N4,200,00.00) being the amount due for payment…”
The Respondents’ Agent, Emmanuel Effiong collected the said Invoice and endorsed “Original Copy Collected by me 14/03/11.”
The Invoice on page 22 was in respect of “Supply of 45 Ton Crane and Roller based on LPO; CAP 025… for Six Hundred and Fifty Thousand Naira…”
The Invoice on page 23 was in respect of “Supply of 210 tons of mixed material based on LPO No. CAP 027… for the sum of One MillionNaira…”
Page 24 was for “supply of 22 tons of Bitumen based on LPO No. CAP 026… for the sum of Three Million, Nine Hundred and Sixty Thousand Naira…”
Page 25 was for “supply of 33,000 litres of LPFO (Black Oil) based on LPO No. 00919m… for sum of Two Million and Six Hundred and Forty Thousand Naira…”
Page 26 was for “Supply of 33,000 litres of LPFO (Black Oil) based on LPO: No. 00920m… for Two Million Seven Hundred and Thirty Nine Thousand Naira…”
Page 27 was for “Supply the under listed materials based on LPO No. 00929 and dated the 20th day of June, 2011… for the sum of Fifteen Million Naira… (1) 1000 tons of ¾ chippings at N5,000.00 per ton = N5,000,000.00 (2) 1000 tons of ½ chippings at N5,000.00 per tons = N5,000,000.00 (3) 1000 tons of 3/8 chippings at N5,000 per ton = N5,000,000.00…”
Page 28 was “Supply of listed materials (chippings) two amounting to N15,000,000, ditto page, Pages 29 and 30 (still for supply of chippings for N15,000,000.00, each page), and signed for and collected bythe same Emmanuel Effiong on different dates.
It is difficult to understand how else the trial Court wanted the Appellants to prove the supplies of the materials or goods if the Invoices which the Respondents’ Agent, Emmanuel Effiong, who also issued the LPOS, signed for their collection did not satisfy.
The trial Court ought to have acted on the available evidence before it and give judgment to the Appellants.
I hereby set aside the said decision of the trial Court and enter judgment for the Appellants, having proved their claim for the balance of N40Million Naira (N40,000,000.00), outstanding on the supply contract. The Respondents shall pay interest on the said judgment debt, at the rate of 10% per annum, from the date they were entitled to the said judgment that is 18/10/2017 when the trial Court wrongly dismissed their claim. The Respondents shall pay the cost of this Appeal, assessed at One Hundred Thousand Naira (N100,000.00) only.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Ita G. Mbaba, JCA. I agree with thereasoning and conclusion in the judgment. I also allow the appeal. I abide with the consequential orders.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment of my Learned brother Ita G. Mbaba, J.C.A, just delivered.
I wholly agree with the reasoning and conclusion reached and allow the appeal.
I also abide by all orders made including that as to costs.
Appearances:
CHIEF F.O. ONYEBUEKE with him, JOHN ADUNG ESQ. For Appellant(s)
EMEKA ORAFU ESQ who settled the brief with him, OFFIONG O. OFFIONG (who adopted the brief)For Respondent(s)