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UGOKWE & ANOR v. ORAKWUE (2021)

UGOKWE & ANOR v. ORAKWUE

(2021)LCN/15752(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, December 14, 2021

CA/A/989/2018

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

1. IBE UGOKWE 2. CHINOSO UGOKWE (Both 1st And 2nd Appellants Are Trading Under The Name And Style Of Heritage Pyramid Dynamic Concept Ltd) APPELANT(S)

And

UGOCHUKWU ORAKWUE (Trading Under The Name And Style Of Joy Of The Lord Venture Ltd.) RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE SINS OF A COUNSEL CAN BE VISITED ON THE PARTY HE REPRESENTS

The law is settled that the sin of counsel should not be visited on the party he represents. See Chief Adedapo Adekeye v. Chief O. B. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 and Anyaegbunam Ndika v. M. O. Chiejina (2003) 1 NWLR (Pt. 802) 451. PER ADUMEIN, J.C.A.

WHETHER OR NOT A COURT HAS A DUTY TO SPECULATE ON ANYTHING

To link the preliminary objection to the amended notice of appeal may be tantamount to the Court engaging in speculation. The law is trite that a Court has a duty not to speculate on anything. See Pele Ogunye & Ors. v. The State (1999) 5 NWLR (Pt. 604) 548; Ikenta Best (Nig.) Ltd v. Attorney-General of Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
The requirement that a Court of law should refrain from speculation is because it is not part of a judicial exercise but a mere curious guesswork. See Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 9 NWLR (Pt. 620) 552 and African Continental Bank Plc. & Anor v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501.
PER ADUMEIN, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS IN CIVIL MATTERS

The law is quite settled that in a civil cause or matter, contested on the basis of pleadings, the parties are bound by their pleadings. See Yakassai v. Incar Motors (Nig.) Ltd. (1975) 5 SC 107; Osafile v. Odi (1990) 3 NWLR (Pt. 137) 130; Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 SC 117; Enang v. Adu (1981) 11-12 SC 25 and SCOA Nigeria Ltd. v. Mr. Olabode Vaughan & Anor.(2003) 1 NWLR (Pt. 800) 210.
Therefore, in such a case contested on pleadings, the Court has a duty to confine itself to evidence on matters which have been included in the pleadings of the parties. See George v. Dominion Flour Mills (1963) 1 SCNLR 117; National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99; George v. U.B.A Ltd.(1972) 8-9 SC 264; Emegokwue v. Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 1-5 SC 291 and Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185.
PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the claimant in Suit NO. HCL/06/2015 instituted by way of a writ of summons in the High Court of Kogi State, holden at Lokoja in which he sought the following relief, against the appellants who were the defendants in the trial Court:
“a. Claim of the sum of N2,010,000 (Two million ten thousand Naira) only being the cost of the electrical appliances the defendants collected from the Claimant to supply to Dekina L.G.A, Kogi State since 2010/2011.
b. Claim of the sum of being the outstanding balance of the electrical appliances (goods) the Claimant kept in the custody of the Defendants for safe keeping which converted.
c. Claim of the sum of N150,000 (One hundred and fifty thousand Naira) only being the money the 1st Defendant borrowed from the Claimant.
d. Claim of the sum of N1,800,000 (One million eight hundred thousand Naira) only being the damages the claimant suffered as a result of the defendants’ failure to pay the debt they are owing the claimant.
e. Claim of the sum of N200,000 as the cost of prosecuting this suit.
f. 10% interest of the judgment sum until the judgment is executed.”

The action was contested by the appellants and, after taking evidence and the addresses of learned counsel, the trial Court delivered a reserved judgment on the 29th day of June, 2017 whereby the learned trial Judge, Hon. Justice Yunusa Musa, concluded as follows:
“Accordingly I hereby grant claimant’s reliefs as follows:
1. Sum of Two million ten thousand Naira only being the cost of the electrical appliance defendants collected from the claimant.
2. Sum of Six hundred and four thousand NAIRA being the outstanding balance of Electrical appliances (good) claimant kept in the custody of the defendants.
3. The sum of One Hundred and Fifty Thousand Naira being the money 1st defendant borrowed from the claimant.
4. Sum of Fifty Thousand Naira cost of prosecuting this suit.
It is so ordered”.

​Being dissatisfied with the decision of the trial Court, the appellants lodged an appeal to this Court and which appeal was heard on the following processes:
1. Amended notice of appeal filed on 13/11/2018 but deemed as filed on 10/09/2020;
2. Appellants’ brief filed on 15/02/2019;
3. Respondent’s notice of preliminary objection filed on 24/04/2019;
4. Respondent’s brief filed on 24/04/2019; and
5. Appellants’ reply brief filed on 21/06/2021.

PRELIMINARY OBJECTION
The respondent raised and argued a preliminary objection seeking an order striking out the appeal for lack of jurisdiction on the following grounds:
“(a) That the appellant’s Notice of Appeal dated and filed on the 13th September 2017 as can be seen at pages 230-231 of the Record of Appeal is incompetent, invalid and highly defective same having not contained any valid/competent ground of appeal.
(b) The additional eight grounds of appeal dated 9th November, 2018 but filed on the 13th November, 2018 at the Registry of this Honourable Court by the appellants are equally incompetent same having been anchored on the incompetent Notice of Appeal.
(c) The Notice of Appeal was not signed by the appellant nor any legal practitioner, the signature having not been linked to any identifiable registered legal practitioner.
(d) Grounds two, three and four of the appeal is incompetent being complaints against the interlocutory decisions of the trial Court delivered on 26th June, 2016 which the period of its appeal has been expired and no leave of Court was obtained by the appellants before filing the grounds.
(e) Both grounds five and seven of the Notice of Appeal are incompetent same having failed to attack the ratio of the judgment of the trial Court on failure to plead the fact.
(f) Ground six of the appeal is incompetent being a mere quotation of passage in the judgment and the narratives without specifying the nature of the misdirection alleged.
(g) Issue one for determination as formulated by the appellant’s counsel is liable to be struck out same having been anchored on both competent and incompetent grounds of appeal. i.e. incompetent grounds one, two, three and four and competent ground nine of the appeal.
(h) Issue two for determination as formulated by the appellant’s counsel is liable to be struck out being distilled from incompetent grounds six of the appeal.
(i) Issue four for determination as formulated by the appellant’s counsel is liable to be struck out having been formulated from incompetent grounds five and seven of the Notice of Appeal.
(j) That premise on the above reasons, the appellants’ appeal is a mere academic exercise and liable to be struck out or dismissed by this honourable Court for lack of jurisdiction”.

The relevant submissions on the respondent’s preliminary objection are in paragraphs 5.1 to 5.5 of the respondent’s brief and which are hereunder reproduced:
“My lords, the appellants in their Notice of appeal dated and filed 13th September, 2017 couched his sole ground of appeal thus:
“The judgment of the learned trial is unreasonable and cannot be supported having regards to the weight of evidence adduced at the trial”. See Pages 230-231 of the Record of Appeal.
My lords, we are quick to observe that this appeal is a civil appeal arising from the judgment of the learned trial judge coram: Hon. Justice Yunusa Musa delivered on the 29th June, 2017 as can be seen at pages 219-228, of the Record of Appeal and an omnibus ground of appeal that the decision of a trial Court is unreasonable, and cannot be supported by weight of evidence as it was couched by the appellants in their sole ground of appeal is only suitable in civil cases, it is incompetent and liable to be struck out where so couched in a civil case and we urge your lordships to so hold and strike out the incompetent sole ground of Notice of Appeal of the appellant dated and filed on the 13th September, 2017 as can be seen at pages 230-231 of the Record of Appeal. We commend the cases of Augustine Joseph v. Jonah Joseph (2016) LPELR-40779 (CA), Abah v. Jabusco (2008) 3 NWLR (Pt. 1075) 536, Ibeto v. Aminu (2007) 5 NWLR (Pt. 1028) pg. 446 at p. 457, paras. A-F, Nwanwata v. Esumei (1998) 8 NWLR (pt. 563) 650, Ndike v. The State (1994) 9 SCNJ 46, Santi v. Bagobiri (2006) All FWLR (Pt. 292) 100 and Baridam v. The State (1994) 1 SCNJ 1 (1994) 1 NWLR (Pt. 320) 250. See also, Order 7 Rules 3 and 6 of the Rules of this Honourable Court.
Flowing from the above, we submit that the most valid requirement of a notice of appeal is the ground of appeal, there cannot be a valid appeal without a valid ground of appeal, this is because the ground of appeal is the basis of the complaint by the appellant against the judgment of the Court and the appellant’s Notice of Appeal dated and filed 13th September, 2017 having been bereft of any valid ground of appeal is incompetent and liable to be struck out and we urge this Honourable Court to so hold and strike out the appellant’s Notice of Appeal dated and filed 13th of September, 2017 as can be seen at pages 230-231 of the Record of Appeal for being incompetent. We commend the case of Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) pg. 592 p. 619, paras. C-D (SC). See also, Order 7 Rules 3 and 6 of the Rules of this Honourable Court.
My lords, we further submit that the said notice of appeal and the appeal itself are incompetent and being incompetent, those eight additional grounds of appeal filed on the 13th November, 2018 by the appellants will have no appeal to be anchored on because if the original notice of appeal is defective/incompetent, no additional ground of appeal can be hung on it, the grant of leave to file additional grounds to the original sole incompetent ground cannot cure the vice which has incurably infected the original ground because there is no subsisting notice of appeal upon which to place the additional grounds and we urge your lordships to so hold and strike out this appeal. We commend the cases of Aderibigbe v. Abidoye (supra) at pp. 614-61 (SC), Erisi v. Idika (1987) 4, NWLR (Pt. 66) 503, Akeredolu v. Akinremi (No. 2) (1986) 2 NWLR (Pt. 25) 710, Global Transport Oceanico S. A. v. Free Ent. (Nig) Ltd. (2001) 5 NWLR (Pt. 706) 426, Awhinawhi v. Oteri (1984) 5 SC 38, Orakosim v. Menkiti (2001) 9 NWLR (Pt. 719) 529 and Aderibigbe v. Abidoye (supra) at para. G, 618-619 paras. H-A, paras. G, 618 paras. G-B, 622-623 paras. G-B and Fatoki v. Baruwa (2012) 14 NWLR (Pt. 1319) pg. 1 at p. 15 paras. F-G.
My lords, we are quick to observe further that the identity of the owner of the signatures on the appellants’ Notice of Appeal dated and filed on the 13th of September, 2017 and that of the additional grounds of appeal are unknown, and where ex facie a Court process it is uncertain if the process was signed by the litigant or a registered legal practitioner in Nigeria, the process cannot cure the defect and we urge your lordships to so hold and strike out the Notice of Appeal and the appeal itself. We commend the cases of G.T.B. Plc., v. Innoson Nig. Ltd., (2017) 16 NWLR (Pt. 1591) pg. 181 at pp. 196-197, paras. H-A, 197 paras B-D, 207- 208 paras E-A, S.L.B. Consortium v. NNPC (2011) 9 NWLR (Pt. 1252) 317, F.B.N. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444, Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570. On the mere fixing of stamp and seal without linking it with the owner of the signature, see Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610). See also Sections 2(1) and 24 of the Legal Practitioners Act, LFN, 2004 and Rule 10(1), (2) and (3) of the Rules of Professional Conduct 2007 for Legal Practitioners”

On behalf of the appellants, learned counsel argued that “a lone general ground of appeal pending the receipt of the record of appeal from the Registry of the trial Court … is permitted by Order 7 Rule 3 of the Court of Appeal Rules, 2016”. Learned counsel contended further, inter alia, as follows:
“On the issue that the Notice of Appeal was not signed by the Appellant nor any legal practitioner, we shall with utmost humility refer my noble Lords, to pages 230-231 of the Record of Appeal, for my Lords to see for themselves that the said Notice of Appeal was duly signed by Counsel.
The Notice of Appeal (as shown in pages 230-231 of Record of Appeal) dated and filed on 13th September, 2017 is competent, duly stamped/sealed (with the approved NBA Seal) by Sam Akoji Esq., who is the counsel on record all through the trial of this suit at the trial Court. Same Counsel Sam Akoji Esq. is also well known to the respondent and his lawyer, as Counsel has been the one handling this suit and signed almost all the processes at the trial Court. Counsel’s name and Seal are clearly on the processes signed. See Rules 10(1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners 2007. Furthermore, we humbly refer my Lords to pages 187, 189, 195, 197 and 231 of the Record of Appeal where Counsel’s signature and seal appeared in the processes at the trial Court. May we also refer your Lordship to pages 199-218 of the Record of Appeal, which is the proceeding at the trial Court, for my Lords to see for themselves that all the appearances of Counsel, Sam Akoji Esq., same Counsel who signed the Notice of Appeal for which the Respondent now alleges unidentifiable in their Preliminary Objections of this nature, which is aimed at nothing but mischief, unnecessarily belabouring and wasting precious judicial time of the Honourable Court.
It must be added at this point my Lords, that the Respondent’s grouse as stated in the objection is that the name of the Counsel who signed the Notice of Appeal was not ticked. The Counsel, Sam Akoji Esq., is the first on the list of Counsel listed and where a Counsel’s name is the first on the list of Counsel as in this case, there is no requirement of ticking the name, moreso when the Counsel’s Stamp/Seal was affixed in compliance with the law. See Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007.”

I have read the appellants’ original notice of appeal and it contains the following sole ground:
“The judgment of the learned trial Judge is unreasonable and cannot be supported having regards to the weight of evidence adduced at the trial”.

The above ground of appeal, or a ground of appeal couched in like manner, is known as “omnibus ground of appeal”. In the case of A. R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 SC 91 at 93, per Fatayi-Williams, JSC; the Supreme Court held, on the meaning of omnibus ground of appeal, as follows:
“When an appellant complains that a judgment is against the weight of evidence, all that he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.”
An omnibus ground of appeal is, therefore a ground complaining of lack of evaluation or improper evaluation of evidence and/or balancing of the evidence on an imaginary scale by a trial Court. Although, it is not regarded as a ground of law, it is recognized as a ground dealing purely with facts. See Babang Golok v. Mambok Diyalpwan (1990) 3 NWLR (Pt. 139) 411.
Being a valid ground, attacking the trial Court’s omission to evaluate or inability to properly evaluate the evidence before it, an omnibus ground of appeal is sufficient to properly situate and ground a notice of appeal against a final judgment of a High Court sitting as a Court of first instance, under Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The learned counsel also complained that the signature on the notice of appeal was not linked to any counsel and, therefore, the notice of appeal is incompetent. It is true that a Court process signed in the name of a business name or a law firm, simpliciter, is incompetent. See Okafor v. Nweke (2007) 3 SC (Pt. 11) 52 at 62-63 and Prof. Vincent Nnamdi Okwuosa v. Prof. N.E. Gomwalk & Ors. (2017) 9 NWLR (Pt. 1570) 259. Thus, in the case of SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 366; the Supreme Court held that:
“In reality ‘Adewale Adesokan & Co.’ which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act. It is not in doubt that the signature of ‘Adewale Adesokan & Co.’ on the originating summons of the appellants robs the process of competence ab initio”.

In this case, the notice of appeal has the following endorsement, amongst others:
“Sam Akoji Esq.
Nyenke Ikpendu C. J.
Abubakar Abdulrahman Esq.
I. O. Oshagbemi (Miss)
(Counsel to the Appellants)”

​There is a signature immediately above the name of Sam Akoji, Esq. The respondent’s complaint is that the signature is not linked to any of the counsel listed.

I think that the presumption, in this case, is that one of the five learned counsel, stated as counsel for the appellants, signed the notice of appeal. The failure by the learned counsel, who signed the notice of appeal, to link or appropriate the signature to his name is a mere irregularity which could not adversely affect the competence of the notice of appeal ab initio. In any case, the said original notice of appeal was, by an order of this Court, amended without any objection from the respondent. The respondent should be taken to have acquiesced to this irregular notice of appeal and, just like where a defendant enters or files an appearance to an action, actually appears in Court but fails to raise the question of non-service or improper service of the originating process on him, he is estopped from subsequently raising this issue of irregularity. See Obimonure v. Erinosho (1966) 1 All NLR 250 and Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1.

​To be fair to the appellants, even the ‘sin’ of any of their learned counsel not directly or otherwise linking or appropriating the signature to his name cannot be visited on the appellants. The law is settled that the sin of counsel should not be visited on the party he represents. See Chief Adedapo Adekeye v. Chief O. B. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 and Anyaegbunam Ndika v. M. O. Chiejina (2003) 1 NWLR (Pt. 802) 451.

The respondent also complained of incompetent grounds of appeal. However, the respondent’s preliminary objection did not attack the “amended notice of appeal” relied upon by the appellants. I shall ignore the complaints on alleged incompetent grounds of appeal, since the appeal was heard on the appellants’ amended notice of appeal, which is not the object of the respondent’s preliminary objection. To link the preliminary objection to the amended notice of appeal may be tantamount to the Court engaging in speculation. The law is trite that a Court has a duty not to speculate on anything. See Pele Ogunye & Ors. v. The State (1999) 5 NWLR (Pt. 604) 548; Ikenta Best (Nig.) Ltd v. Attorney-General of Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
The requirement that a Court of law should refrain from speculation is because it is not part of a judicial exercise but a mere curious guesswork. See Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 9 NWLR (Pt. 620) 552 and African Continental Bank Plc. & Anor v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501.

For all the above reasons, I hold that the respondent’s preliminary objection lacks merit and it is hereby overruled and dismissed, accordingly.

SUBSTANTIVE APPEAL
The learned counsel for the appellants formulated the following four issues for determination:
“1. Whether there is any credible evidence on records, oral or documentary, capable of supporting the respondent’s relief of the sum of N2,010,000.00 (Two Million, Ten Thousand Naira) granted by the learned trial Judge? This issue is distilled from grounds 1, 2, 3, 4 and 9 of the Amended Notice of Appeal.
2. Given that there was no further transactions between the parties after the respondent reported to the Police of the debt owed him in the sum of N874,000.00 (Eight Hundred and Seventy Four Thousand Naira) on 17th April, 2013, whether the amount so owed can increase or a new debt of N2,010,000.00 (Two Million, Ten Thousand Naira) could be created? This issue is Distilled from ground 6 of the Amended Notice of Appeal.
3. Whether it is the duty of the Defendants/Appellants to call an expert to prove that they did not sign the invoice after denying the said documents? This issue is distilled from ground 8 of the Amended Notice of Appeal.
4. Whether the natural persons of Ibe Ugokwue and Chinonso Ugokwe (the Appellants) are the same as the legal personality of Heritage Pyramid Dynamic Concept Limited and whether the debt of the said company can be transferred to the Appellants? This issue is distilled from grounds 5 and 7 of the Amended Notice of Appeal.”

On behalf of the respondent, L. N. Ilobuno, Esq. framed three issues for determination as follows:
“1. Whether the respondent proved his case against the Appellants (distilled from grounds 6, 8 and 9 of the Notice of Appeal).
2. Whether Exhibits A1-A6 and B2-B4 were rightly admitted in evidence by the learned trial Court (distilled from grounds 2, 3 and 4 of the Notice of Appeal).
3. Whether the appellants can be allowed to raise the issue of legal personality of Heritage Pyramid Dynamic Concept Limited not raised their pleadings or evidence in their written address (distilled from grounds 5 and 7 of the Notice of Appeal)”.

The issues identified by the respondent adequately cover the appellants’ grounds of appeal and also concisely cover the issues raised for determination by the appellants. I adopt the issues as formulated by the learned counsel for the respondent to determine this appeal. Issue 3 will be taken and treated first and, thereafter, Issues 1 and 2 will be taken together.

ISSUE 3
“Whether the appellants can be allowed to raise the issue of legal personality of Heritage Pyramid Dynamic Concept Limited not raised their pleadings or evidence in their written address”.
The above issue is the same as Issue No. 4 formulated by the appellants under which they argued, inter alia, as follows:
“My Lords, a cursory look at the Writ of Summons indicate that the respondent, the Claimant at the lower Court sued the appellants, the defendants at the lower Court. The respondent went on to add that “both the 1st and 2nd defendants (now appellants) are trading under the name and style of Heritage Pyramid Dynamic Concept Limited. We had argued that a limited liability company such as Heritage Pyramid Dynamic Concept Limited has a different personality distinct from those of Ibe Ugokwe and Chinonso Ugokwe. Please see pages 147 to 149 of the record of appeal.
The question on our minds and which calls for the determination of this Honourable Court is whether the appellants who are natural persons are the same as the Legal Personality of Heritage Pyramid Dynamic Concept Limited and whether the debt of the said company can be transferred or imposed on the appellant.”

They further argued that “the non-joinder of Heritage Pyramid Dynamic Concept Ltd who is said to be a Limited Liability Company and who entered into the contract with the respondent adversely affects this action”.

In response, the respondent contended, inter alia, that:
“My Lords, above are the pleadings of the respondent and appellants and the admission of the averment in paragraph two of the respondent’s statement of claim by the appellants herein. Furthermore, the headings of all the processes filed at the trial Court including the statement of defence of the appellant as can be found at page 51 of the Record of Appeal are in support of the above pleadings. My lords, the appellant herein also in his evidence on oath under cross-examination in view of the provision of Section 223 of the Evidence Act, 2011 told the Court thus:
“It is true that my business name is Heritage Pyramid Dynamic Concept Ltd”
My Lords, it is clear from the above that the appellants herein both in their pleadings and evidence on oath on record admitted that Heritage Pyramid Dynamic Concept Ltd is a business name and fact admitted needs no further proof and we urge your lordships to so hold moreso that the appellants’ counsel cannot use his written address or brief to cure defects in either pleadings or evidence”.

I have read the pleadings and the evidence of the parties. In paragraph 2 of the respondent’s amended statement, he pleaded as follows:
“2. The 1st and 2nd Defendants are partners trading under the name and style of Heritage Pyramid Dynamic Concept Ltd at IBB way Okene-Kabba Road Lokoja within the jurisdiction of the Honourable Court”.

In their reaction, the appellants pleaded in paragraph 2 of their statement of defence thus:
“The Defendants admit paragraph 2 of the Statement of Claim”.

The 1st appellant proceeded to testify, under cross-examination, that:
“It is true that my business name is Heritage Pyramid Dynamic Ltd.”

The law is quite settled that in a civil cause or matter, contested on the basis of pleadings, the parties are bound by their pleadings. See Yakassai v. Incar Motors (Nig.) Ltd. (1975) 5 SC 107; Osafile v. Odi (1990) 3 NWLR (Pt. 137) 130; Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 SC 117; Enang v. Adu (1981) 11-12 SC 25 and SCOA Nigeria Ltd. v. Mr. Olabode Vaughan & Anor.(2003) 1 NWLR (Pt. 800) 210.
Therefore, in such a case contested on pleadings, the Court has a duty to confine itself to evidence on matters which have been included in the pleadings of the parties. See George v. Dominion Flour Mills (1963) 1 SCNLR 117; National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99; George v. U.B.A Ltd.(1972) 8-9 SC 264; Emegokwue v. Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 1-5 SC 291 and Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185.

In this case, both the respondent and the appellants pleaded that the appellants were “partners trading under the name and style of Heritage Pyramid Dynamic Concept Ltd” and the appellants even admitted this in their oral evidence in the trial Court. Therefore, the issue of legal personality never arose before the trial Court. In any case, the appellants did not tender any document or evidence that Heritage Pyramid Dynamic Concept Ltd. was incorporated as a limited company under the Companies and Allied Matters Act.

The appellants are, therefore, estopped denying in the capacity in which they were sued by the respondent.

It is true, as submitted by the learned counsel for the appellants, that in the trial Court they raised this issue – that is:
“1. Whether the persons of Ibe Ugochukwu and Chinonso Ugokwe (1st and 2nd defendants) are the same as the legal personality of Heritage Pyramid Dynamic Concept Ltd and whether the debt of the said company can be transferred and/or imposed on the 1st and 2nd defendants?”.
See page 147 of the record of appeal.

The appellants need to be reminded that, no matter how articulate, elaborate, fanciful or sound the address or arguments of counsel may be, such address or arguments cannot be substituted for evidence by any Court of law. See Bernard Ugorji v. Nathaniel Onwuka (1994) 4 NWLR (Pt. 337) 226 at 238, where this Court held that:
“No amount of brilliance in an address can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.”
See also Niger Construction Ltd. v. Chief Okugbeni (1987) 12 SC 108; (1987) 4 NWLR (Pt. 67) 787; Mallam Yusuf Olagunju v. Chief E. O. Adesoye & Anor. (2009) 9 NWLR (Pt. 1146) 225; Sikiru Olaide Okuleye v. Alhaji Rasheed Adeoye Adesanya & Anor. (2014) 12 NWLR (Pt. 1422) 521, Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 251 and Sharing Cross Educational Services Ltd. v. Umaru Adamu Enterprises Ltd. & 2 Ors. (2020) 10 NWLR (Pt. 1733) 561.
Without more, this issue is hereby resolved in favour of the respondent and against the appellants.

​ISSUES 1 AND 2
“1. Whether the respondent proved his case against the Appellants (distilled from grounds 6, 8 and 9 of the Notice of Appeal).
2. Whether Exhibits A1-A6 and B2-B4 were rightly admitted in evidence by the learned trial Court (distilled from grounds 2, 3 and 4 of the Notice of Appeal).”

The above two issues cover Issues 1, 2 and 3 distilled by the appellants.

Learned counsel for the appellants argued, amongst others, that:
“The learned trial Judge relied on Exhibits ‘A1’, ‘A2’, ‘A3’, ‘A4’, ‘A5’, and ‘A6’ which are documents that are not admissible in this proceedings by virtue of Sections 83(1) and 102(b) of the Evidence Act, 2011. The provision of Sections 83(1) of the Evidence Act 2011 is to the effect that only original documents are admissible in evidence, even then this is subject to certain qualifications.
The documents received in evidence by the learned trial Judge, i.e. Exhibits ‘A1’ to ‘A6’ were not in their primary form as required by Section 83(1) of the Act. They are photocopies”.

​It was contended, by the appellants, that exhibits “B2”, “B3”, “B4”, “B5” and “B6” tendered by the respondent “are not in compliance with Section  83(1) & (4), 84(2) and (3), 90(1)(e) i – iv; and 102(b) of the Evidence Act, 2011”.

Learned counsel for the respondent countered the appellants’ arguments but submitting that the documents – exhibits “A1” to “A6” were pleaded and “frontloaded” by the respondent and they “were rightly admitted in evidence by the … trial Court” since they were duplicate copies. In support of this submission, learned counsel for the respondent relied on Sections 86(2), (3) & (4) and 91 of the Evidence Act, 2011 and the case ofJacob v. A-G; Akwa Ibom State (2002) FWLR (Pt. 86) 578 at 591.

I have examined the pleadings and the evidence of the parties. It is true that the facts contained in exhibits “A1” to “A6” and “B2” to “B6” were duly pleaded and these documents were relevant to the case before the trial Court.

​Exhibits “A1” to “A6” are series of duplicates of receipts from the Joy of the Lord Venture Ltd, under which name the respondent claimed to be trading and carrying on his business. These documents are duplicate copies or “carbonated copies”, as described by Sebastine Tar. Hon. (SAN) in his book – S. T. Hon’s Law of Evidence In Nigeria (Vol. II) page 934 and are admissible in law under Section 86 of the Evidence Act. See Vitus Anyaegbu v. Obinna M. Ozor (1999) 4 NWLR (Pt. 598) 148.
Also, as can be seen from the respondent’s amended statement of claim, the original copies of these documents – credit invoices – were said to be in the custody of the appellants and the respondent pleaded that “notice is hereby given to the defendant(sic) to produce the original copies of those credit invoices”. By this assertion, although denied by the appellants, by a mere general traverse, these duplicate or carbonated copies of the credit invoices were rightly admitted by the trial Court by virtue of the provisions of Section 89(a)(i) of the Evidence Act, 2011. See also the cases of African Continental Bank Plc v. David O. Nwodika (1996) 4 NWLR (Pt. 443) 470 and Alhaji Chief A. A Shobanke v. Alh. Abdullahi Salihu Sarki (2006) All FWLR (Pt. 292) 131.

​I have read the contents of these documents – exhibits “A1” to “A6” and “B2” to “B6” and I am satisfied that, based on the totality of both oral and documentary evidence before, the trial Court rightly entered judgment against the appellants and there is no basis to set aside the judgment of the trial Court.

Without further ado, I resolve these two issues in favour of the respondent and against the appellants.

In conclusion, having resolved the live issues in favour of the respondent, there is no merit in this appeal. This appeal is hereby dismissed, accordingly.

The sum of N300,000.00 (Three Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondent and against the appellant.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the judgment of my noble brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA just delivered and I agree with the findings and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed. The judgment of the lower Court in suit No. HCL/06/2015 presided by Yunusa Musa, J delivered on 29/06/2017 is hereby affirmed.

I abide by the order as to cost in the lead judgment in favour of the Respondent and against the Appellant.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, M.A.A. Adumein, JCA. I agree with the reasoning therein and the conclusion reached. This appeal lacks merit. I also dismiss it.

Appearances:

Samuel Akoji, Esq., with him, Queeneth Henshaw, Esq. For Appellant(s)

U.L. Onyejekwe, Esq. For Respondent(s)