BURTON RESOURCES LTD & ANOR v. FIRST DEEPWATER DISCOVERY LTD
(2021)LCN/15157(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 07, 2021
CA/A/788/2015
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. BURTON RESOURCES LIMITED 2. MR OLAJIDE AKINYEDE APPELANT(S)
And
FIRST DEEPWATER DISCOVERY LIMITED RESPONDENT(S)
RATIO
THE APPROACH OF THE COURT IN INTERPRETING A DOCUMENT OR AN AGREEMENT
In arguing the appeal, it is the submission of counsel that the claim of the Respondent was based or linked to Exhibit PWIA (the agreement between the parties for the supply of the 50,000 metric tons of NAPHTA EX-PHRC) and that the law is that a document or an agreement which is before a Court for interpretation must be given the literal interpretation once the words are clear, precise and unambiguous. Counsel referred to Williams vs Williams (2014) 15 NWLR (pt. 1430) 213 @ 241. PER TOBI, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES
This position of the law has to do with the burden and standard of proof. The law is settled that the burden of proof to establish the case brought to Court rest on the shoulders of the party that will loss if no evidence is adduced. This clearly will be the Claimant. The burden therefore to establish the case, rest on the claimant in a civil case and the prosecution in a criminal case. See Nduul vs Wayo & Ors (2018) LPELR-45151 (SC). In Ekweozor & Ors vs Reg. Trustee of Saviour of Apostolic Church of Nig (2020) LPELR-49568 (SC), the apex Court in driving home this point held thus:
“To untie the puzzle, it needs reiteration that the burden of proof in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. In resolving the first question, the primary onus of proof in a civil case such as the present one lies on the plaintiff who happens to be the now respondent.
I rely on the following cases:
– KWAMINA KUMA v KOFI KUM (1934) WACA 178 AT p. 179;
– KODILINYE v MBENEFO ODU (1935) 2 WACA 336 AT P. 337;
– AYITEY COBBLAH v TETTEY GBEKE (1947) 12 WACA 294 AT P. 295;
– ANACHUNA NWOKAFOR AND ORS. v NWANKWO UDEGBE AND ORS. (1963) 1 ALL N.L.R. 107.
– NWANKWO UDEGBE AND ORS. V ANACHUMA NWOKAFOR AND ORS. (P.C.) (1963) N.L .R.P. 417 AT P. 418.
– MOGAJI & ORS. v ODOFIN & ANOR. (1978) 4 SC 91; BELLO v EWEKA (1981) 1 SC 101 AT 117 – 120.
It needs be said that the onus of proof does not exist in vacuo. The onus or burden of proof is the legal duty or obligation to prove or establish facts in relation to an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, there will generally be no onus on the plaintiff to go into, in proof of his claim. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party, therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings . . .”
This burden does not shift. In a civil case, the standard of proof required is on balance of probability. This simply means a Court will create an imaginary scale of justice putting the case of the parties on each side of the scale, the side that weighs down just a little over that of the other party will secure judgment in his favour. If the scale shows 51% in favour of the Claimant, the case will be decided in its favour. Putting it more in a legal sense, if the story of the claimant is more credible, consistent and believable, the decision will favour the Claimant. See Ehwrudje vs Warri Local Govt Area (2016) 10 NWLR (pt. 1520) 337. In Interdrill (Nig.) Ltd vs Uba Plc (2017) 13 NWLR (pt. 1581) 52, the Supreme Court held:
“Section 134 of the Evidence Act states that burden of proof in civil cases shall be discharged on the balance of probabilities. Balance of probabilities or preponderance of evidence means that in civil proceedings, judgment is given to the party with the greater weight or stronger evidence.”
The Claimant must succeed on the strength of its case and not on the witness of the case of the Defendant except the case of the Defendant supports the case of the Claimant. PER TOBI, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO TAKE EVIDENCE OF THE PARTIES AND THEIR WITNESSES
This is the main duty of a Court that had the opportunity of taking evidence of the parties and their witnesses. An appellate Court should acknowledge this edge that the lower Court has over it when it comes to the issue of finding of facts based on evidence. PER TOBI, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT
It is in recognition of this fact that the decision are many to the effect that an appellate Court should not interfere with the finding of facts by the lower Court except if the finding is perverse. See Kamila vs State (2018) 8 NWLR (pt. 1621) 252. The decision of the apex Court in this regard in CIL Risk & Asset Management Ltd vs Ekiti State Govt & Ors (2020) LPELR-49565 (SC) is instructive. The Court held thus per Odili, J.S.C.:
“Getting to the meat of the matter is the concurrent findings of the two Courts below and whether or not this Court should enter into an interference thereof to upset what those earlier Courts did. In this case, I see no way out of disturbing those earlier findings of the two Courts below in the light of the presentations and having been guided by decisions of this Court, a few of which I shall lean onto in aid.
See Adesina V. People of Lagos State (2019) LPELR-46403 (SC) wherein I had the privilege to say:-
“The Supreme Court has indeed in a Plethora of cases stated what should first be available for the Court or even the Apex Court to disturb concurrent findings. Any of those happenings that could make the appellate reverse such findings are stated hereunder thus: (1) The findings of those Courts are perverse. (2) The findings have not been founded on legal evidence before the trial Court. (3) Where it is shown that the lower Courts relied upon or took into account extraneous matters which ought not to have been taken into account. (4) Where miscarriage of justice has been occasioned. See Babatunde v State (2013) 4 WRN 1 at 22; Atolagbe v Shorun (1985) 1 NWLR (pt.2) 360; (1985) 45 SC 250; Adimora v Ajufo (1988) 3 NWLR (pt.80) 1; Okulate v Awosanya (2000) 1 WRN 65; Enang v Adu (1981) 11-12 SC 25.” Per PETER- ODILI, J.S.C. (Pp.18-19, paras, F-D).
See also NYESOM V. PETERSIDE (2016) ALL FWLR (pt. 842) 1573 SC wherein this Court held as follows:-
“The evaluation of evidence and ascription of probative value.
Thereto are the primary duties of the trial Court which had the singular opportunity of seeing and hearing the witnesses testify and an appellate Court would ordinarily not interfere. PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice A. B. Mohammed in Suit No: FCT/HC/CV/2617/2013- Burton Resources Limited & Anor vs First Deepwater Discovery Limited delivered on 2/3/2015 found on pages 246-270 of the record of appeal. The decision of the lower Court after reviewing the evidence before it was in favour of the Respondent who was the claimant before it. The facts that led to this appeal are not complicated at all as there are many areas where the parties to this appeal agreed as to what happened. The Respondent who was Claimant in the lower Court instituted an action against the Appellant, Defendant in the lower Court claiming in summary the sum of N118,000,000 for the supply of 50,000 metric tons of NAPHTA EX-PHRC which the Defendant did not supply after collecting the said sum from the Respondent. The Respondent’s case in the lower Court is found on pages 1-24 of the records which contain the writ of summons and the statement of Claim. The claim of the Respondent is found specifically on pages 2, 7-8 of the record. The claim is as follows:
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- A DECLARATION that the acts of the Defendants obtaining the sum of N118,000,000.00 (One hundred and eighteen million naira) from the Plaintiff for the supply of 50,000 metric tons of NAPHTA EX-PHRC amount to fraud and obtaining money under false pretence when the Defendants knew abinitio that there was no such product to be supplied to the Plaintiff.
b. AN ORDER of this Honourable Court directing the Defendants to pay to the Plaintiff the sum of N118,000,000.00 (One hundred and eighteen million naira) being money had and received for the supply of 50,000 metric tons of NAPHTA EX-PHRC which never existed.
c. AN ORDER FOR PAYMENT OF INTEREST on the said sum of N118,000,000.00 (One hundred and eighteen million naira) at the rate of 21% from the 7th of April, 2008 until judgment and thereafter at the rate of 10% per annum until the judgment sum is entirely liquidated.
d. AN ORDER of this Honourable Court compelling the Defendants to pay the Plaintiff’s Solicitors’/Counsel’s fees of N5,000,000.00 (Five million naira) for the prosecution of the Plaintiff’s claims in this cause.
The Appellant did not deny receiving the said sum of money
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from the Respondent but denied the purpose the money was given to him for. The Appellant case is that the money was given to him as the Respondent’s portion of his contribution to assist in getting an accommodation and cars for their common friend who was appointed as a Minister of the Federal Republic of Nigeria for the purpose of future favours or benefit from him. The issue before the lower Court was not whether the sum of N118,000,000.00 was given to the Appellant by the Respondent but rather what the money was given to him for. Was it for the supply of 50,000 metric tons of NAPHTA-PHRC as claimed by the Respondent or it was his portion of contribution to make the life style of their friend who was appointed minister better. The lower Court believed the story of the Respondent (Claimant in the lower Court) and entered judgment against the Appellant (Defendant in the lower Court). The lower Court specifically at pages 264-265 of the record of appeal held as follows:
1. The Defendants are hereby ordered to pay to the Plaintiff the sum of N118,000,000.00 (One hundred and eighteen million naira) being money had and received being payment for the
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supply of 50,00 metric tons of NAPHTA EX-PHRC which the Defendants failed to supply.
2. The Defendants are hereby ordered to pay the Plaintiff interest in the judgment sum above at the rate of 10% from the date of this judgment until the judgment sum is fully liquidated.
3. The Plaintiff’s claim for N5,000,000.00 (Five million naira) being solicitor’s fee is hereby refused. First because a claim for solicitor’s fees is in the nature of special damages that must not only be specifically pleaded but also proved. Second because the claim for solicitor’s fees is a claim which arose after the transaction that gave rise to the cause of action in this case. It is also against public policy to pass on the burden to solicitor’s fees to the adverse party. See GUINNESS NIGERIA PLC VS EMMANUEL NWOKE (2000) 15 NWLR (pt. 689) 135 OR (2000) LPELR-6845(CA), per Ibiyeye, JCA and S.P.D.C. v OKONDO (2007) ALL FWLR (pt. 368) 1104, per Abba – Aji J.C.A. at pages 1137-1138, paras E – D.
The Appellant dissatisfied with the judgment filed this appeal against the judgment. The notice of appeal found on pages 266-270 of
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the record contains 4 grounds of appeal. It will not be out of place to reproduce the ground here. The grounds bereft of the particulars are:
1. The learned trial Judge erred in law when he held “Exhibit PW 1A supports the plaintiff’s evidence that it entered into an agreement with the Defendants for the supply to it by the Defendants of 50,000 metric tons of NAPHTA EX-PHRC. The exhibit, which is an agreement dated 7th April, 2008 between Burton Resources Limited (as seller) and First Deepwater Discovery Limited (as purchaser) was indeed for the supply of 50,000 metric tons of the product by the 1st Defendant to the Plaintiff as stated by PW1” and thereafter entered judgment in favour of the Respondent.
2. The learned trial Judge erred in law when he held that the Appellants failed in proving their assertion that the contract between the parties in the case was illegal for not proving same by documentary evidence.
3. The learned trial Judge erred in law when it assumed jurisdiction over an illegal contract.
4. The judgment is against the weight of evidence.
In arguing the appeal, the counsel to the parties filed
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their respective briefs. The Appellant’s brief was settled by Adamson Adeboro Esq., who also argued the appeal while the Respondent’s brief was settled by D. A. Awosika SAN who also argued the appeal. Both counsel adopted their respective briefs on 15/2/21.
As it is customary, I will now take an overview of the submission of counsel. I will start with the Appellant’s counsel, Adamson Adeboro Esq. Learned counsel for the Appellant raised a sole issue for determination from the 4 grounds of appeal filed on 27/3/15. The sole issue is:
Whether in the circumstance of this case, the decision of the trial Court was not perverse and borne out of wrong evaluation of evidence before the Court.
This sole issue was formulated from all the grounds of the notice of appeal. In arguing the appeal, it is the submission of counsel that the claim of the Respondent was based or linked to Exhibit PWIA (the agreement between the parties for the supply of the 50,000 metric tons of NAPHTA EX-PHRC) and that the law is that a document or an agreement which is before a Court for interpretation must be given the literal interpretation once the words are
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clear, precise and unambiguous. Counsel referred to Williams vs Williams (2014) 15 NWLR (pt. 1430) 213 @ 241. It is the firm submission of counsel that before effect can be given to PWIA, the condition precedent stated therein must have been satisfied by the parties. It is the further submission of counsel that the condition precedent as contained in Exhibit PWIA which the Respondent did not comply with is to the effect that the payment was to be done in dollars and further that the payment was only to be made when the original letter of allocation from NNPC is handed over to the Respondent. Since these condition precedents were not fulfilled and more so that the payment made to the Appellant was not linked to the agreement (Exhibit PW1A), the lower Court was wrong in deciding the case in favour of the Respondent. For these submissions, counsel relied on R.O.C & S Ltd vs Rainbownet Ltd (2014) 5 NWLR (pt. 1401) 516 @ 545; Tsokwa Oil Marketing Co. (Nig) Ltd vs Bank of the North Ltd (2002) 11 NWLR (pt. 777) 163; N.B.C. Ltd vs Integrated Gas (Nig) Ltd (1999) 8 NWLR (pt. 613) 119; Adedoyin vs African Petroleum Plc (2014) 11 NWLR (pt. 1419) 415 @ 442.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned Counsel to the Appellant while conceding that the general rule is that oral evidence cannot vary the content of a document went on to state the exception to that rule as stated in Section 128 (1) of the Evidence Act, 2011 and the cases of Bon Ltd vs Akintoye (1999) 12 NWLR (pt. 631) 392; Nekpenekpen vs Egbemhonkhaye (2014) LPELR-22335 (CA) and F.I.B. Plc vs Pegasus Trading Office (2004) 17 NSCQLR 688 at 677-679. The submission of counsel is that Exhibit PWIA is for a different transaction as there is no evidence connecting the payment of the sum of N118,000,000.00 to the said agreement.
The lower Court according to counsel did not properly evaluate the evidence before it but rather misconceived the real issues before it in arriving at a decision which in effect seem to give credence to an illegal contract which is against public policy. PWIA should not be enforced by any Court, counsel submitted citing Oguebego vs PDP (2016) 4 NWLR (pt. 1503) 446 @448; Buhari vs Obasanjo (2006) 2 EPR 494; Corporate Ideal Insurance Ltd vs Ajaokuta Steel Company Ltd & Co (2014) LPELR-22255 (SC); Oguntuwase vs Jegede (2015) LPELR-24826 (CA).
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It is the final submission of counsel that this appeal be allowed.
The Respondent’s counsel, D. A. Awosika (SAN) formulated 2 issues for determination viz:
1. Whether the lower Court rightly evaluated the evidence before it and came to the right conclusion affirming that the Respondent did establish its case against the Appellants and thereby entitled to judgment.
2. Whether the Appellants were able to discharge the burden of proof on them when they alleged illegality in the Respondent’s case.
Learned silk admitted in addressing issue 1 that the case put forward by the Respondent was built mostly around Exhibit PW1A and went on to submit that the pleadings of the Respondent at the lower Court clearly made reference to the exhibit and therefore the lower Court was right in giving reference to that exhibit as issues are decided on pleadings. For this submission, learned silk referred to Olufosoye vs Olorunfemi (1989) 1 NSCC 21 @ 28. It is the submission of Senior Counsel that on the state of the pleading, there is no dispute that the Appellant received N118,000,000.00 from the Respondent and decided to pay back N50,000,000 from the sum
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which instrument of payment was dishonoured. The real issue is what the money was given to the Appellant for counsel submission. In answer to this question, it is the submission of counsel that the Respondent had discharge the burden placed on it by law to establish that the payment was made in respect of the supply of 50,000 metric tons of NAPHTA EX-PHRC (herein after referred to as the item) which was not delivered by the Appellant in line with Exhibit PW1A. He relied on paragraphs 4,5,6,7,8,9,12 and 13 of the statement of claim and Exhibits PW1B, PW1C, PW1D, PW1E and PW1F and the case of Agbareh vs Mimra (NWLR) (pt. 1071)378 (sic). On the strength of those, learned silk sumitted that the finding of the lower Court was correct and such this Court should not interfere witsame as the evidence before the lower Court by the Respondent was properly evaluated by the Court. The finding of the lower Court, learned silk submitted based on the evidence of the Respondent before it which evidence is credible, consistent, reliable, reasonable and believable citing Section 133(1) of the Evidence Act and the cases of Nwadiogbu & Ors vs Nnadozie & Ors Land Law
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Appeal cases Vol. 2323 at 334; Ezemba vs Ibeneme (2004) 14 NWLR (pt. 894) 617; Agbi vs Ogbeh (2006) 11 NWLR (pt. 990) 65; S.C.O.A. (Nig.) Ltd vs J.A. Kehinde & Sons Ltd (2004) 8 NWLR (pt. 874) 87; Iriri vs Erhurhobara (1991) 2 NWLR (pt. 173) 252.
In addressing issue 2, it is the submission of counsel that the Appellants haven raised the issue of illegality has the duty to led evidence to establish same and that the Appellant did not discharge the burden placed on it to show that the contract between it and the Respondent is illegal. Counsel referred to Dr. Akinola E. Omojola & Anor vs Dada Oyateru (2007) LPELR-8359; Edeani Nwavu & Ors vs Chief Patrick Okoye & Ors (2008) 18 NWLR (pt. 1118) 29 S.C; Buraimoh vs Bamgbose (1989) 3 NWLR (pt. 109) 352. The Appellant who is alleging illegality has the burden to so establish both in the pleading and in the evidence as pleading alone not backed by evidence will not be sufficient, learned senior counsel submitted relying on Abubakar vs Joseph (2008) 13 NWLR (pt. 1104) 307; Odutola vs Papersack (Nig.) Ltd (2006) 470 (sic); Bamaiyi & Ors vs Na-Allah & Ors (2008) LPELR-8640;
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Aregbesola & Ors vs Oyinlola & Ors (2010) LPELR-3805. It is the further submission of the senior counsel to the Respondent that the attempt by the Appellant to vary the content of Exhibit PW1A with oral evidence is not allowed in law referring to Baliol (Nig.) Ltd vs Navcon (Nig.) Ltd (2010) 16 NWLR (pt. 1220) 619 S.C; Fin Bank (Nig) Plc vs Adebayo Issa Olawale (2012) LPELR-15352 (CA); Yashe vs Umar (2003) 13 NWLR (pt. 838) 464.
Learned silk submitted that the Respondent haven proved its case, the burden shift to the Appellant to rebut the evidence put forward by the Respondent, this the Appellant was not able to rebut. Counsel cited Elema vs Akenzua (2000) 6 SCNJ 22 @ 23. The Appellant, Respondent’s counsel submitted has the duty to lead credible evidence to the fact that the money given to him was to pay for rent for the Minister of Gas and failure to so prove is fatal to the case of the Appellant.
It is the final submission of learned silk relying on several authorities that the documentary evidence that is PW1A which shows that the parties entered into an agreement for the supply of 50,000 metric tons of NAPHTA EX-PHRC to the Respondent for the sum of
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N118,000,000.00 which items were not supplied and the money not returned was credible and that the lower Court was right in coming to the conclusion it did. He finally urged the Court to dismiss the appeal.
Exercising the right of reply, the Appellants filed a reply brief which is to the effect that the Respondent’s statement of claim and the evidence did not correspond with Exhibit PW1A relying on Ezenwaka vs Okon (2017) 1 NWLR (pt. 1547) 386 and as such the finding is perverse. This is the main thrust of the reply brief.
In deciding this appeal as mentioned earlier, the facts that lead to this appeal are not complicated. The main issue here is whether the sum of N118,000,000, the Respondent advanced to the Appellant was for the supply of 50,000 metric tons of NAPHTA EX-PHRC or for the accommodation and furnishing of the house and purchase of cars of the then Minister of Gas. Putting it the other way round, more specifically, the issue is whether the amount paid to the Appellants by the Respondent is in furtherance of Exhibit PW1A? The Appellant is emphatic in his submission that it is not what the Respondent and the lower Court said that it is.
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The success or failure of this appeal is primarily determined by the position this Court will take on the issue. This is because, there is enough evidence before this Court as shown in the record admitted by both parties that the Respondent gave the sum of N118,000,000.00 to the Appellants. The Appellants did not deny that. They also did the purpose the money was given to them not denied is that for whatever reason the money was given to the Appellants was not successful hence the Appellant tried to return N50,000,000 to the Respondent but the cheque was dishonoured. What is clear beyond dispute is that the N118,000,000.00, the Respondent gave to the Appellant had not been returned at all time material to this case and this appeal. The money is still with the Appellant or used by the Appellants for whatever reason. From a moral point of view, this does not seem good for the Appellant but the truth is Court’s decisions are not based on morality, sentiment, speculation and emotion but rather on the pleadings supported by evidence in line with the law. See Okpe vs Fan Milk Plc & Anor (2016) 12 S.C. (pt. III) 1.
Before I go into the substance of
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the appeal, I must make this elementary point of law which will assist me in coming to a decision in this matter. This position of the law has to do with the burden and standard of proof. The law is settled that the burden of proof to establish the case brought to Court rest on the shoulders of the party that will loss if no evidence is adduced. This clearly will be the Claimant. The burden therefore to establish the case, rest on the claimant in a civil case and the prosecution in a criminal case. See Nduul vs Wayo & Ors (2018) LPELR-45151 (SC). In Ekweozor & Ors vs Reg. Trustee of Saviour of Apostolic Church of Nig (2020) LPELR-49568 (SC), the apex Court in driving home this point held thus:
“To untie the puzzle, it needs reiteration that the burden of proof in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being
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evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. In resolving the first question, the primary onus of proof in a civil case such as the present one lies on the plaintiff who happens to be the now respondent.
I rely on the following cases:
– KWAMINA KUMA v KOFI KUM (1934) WACA 178 AT p. 179;
– KODILINYE v MBENEFO ODU (1935) 2 WACA 336 AT P. 337;
– AYITEY COBBLAH v TETTEY GBEKE (1947) 12 WACA 294 AT P. 295;
– ANACHUNA NWOKAFOR AND ORS. v NWANKWO UDEGBE AND ORS. (1963) 1 ALL N.L.R. 107.
– NWANKWO UDEGBE AND ORS. V ANACHUMA NWOKAFOR AND ORS. (P.C.) (1963) N.L .R.P. 417 AT P. 418.
– MOGAJI & ORS. v ODOFIN & ANOR. (1978) 4 SC 91; BELLO v EWEKA (1981) 1 SC 101 AT 117 – 120.
It needs be said that the onus of proof does not exist in vacuo. The onus or burden of proof is the legal duty or obligation to prove or establish facts in relation to an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, there will generally be no onus on the plaintiff to go into, in proof
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of his claim. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party, therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings . . .”
This burden does not shift. In a civil case, the standard of proof required is on balance of probability. This simply means a Court will create an imaginary scale of justice putting the case of the parties on each side of the scale, the side that weighs down just a little over that of the other party will secure judgment in his favour. If the scale shows 51% in favour of the Claimant, the case will be decided in its favour. Putting it more in a legal sense, if the story of the claimant is more credible, consistent and believable, the decision will favour the Claimant. See Ehwrudje vs Warri Local Govt Area (2016) 10 NWLR (pt. 1520) 337. In Interdrill (Nig.) Ltd vs Uba Plc (2017) 13 NWLR (pt. 1581) 52, the Supreme Court held:
“Section 134 of the Evidence Act states that burden of proof in civil cases shall be discharged on the balance of probabilities.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Balance of probabilities or preponderance of evidence means that in civil proceedings, judgment is given to the party with the greater weight or stronger evidence.”
The Claimant must succeed on the strength of its case and not on the witness of the case of the Defendant except the case of the Defendant supports the case of the Claimant.
The above preliminary point is necessary and important so as to lay a good foundation for the judgment. Before I sign off on this preliminary but necessary point, I must hasten to add that apart from the burden on the claimant to establish his case on the balance of probability, I must make the point that if any of the parties asserts a particular fact or point, the burden to prove that fact rest on that person making the assertion as the law is settled that he who asserts must prove. See Agbabiaka vs First Bank (2019) LPELR-48125 (SC).
For the above legal position to make sense, let me apply same to this case on appeal. The Respondent came to the lower Court as claimant claiming among other reliefs the sum of N118,000,000.00 for the supply of 50,000 metric tons of NAPHTA EX-PHRC . The said money was paid
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to the Appellants for that purpose. The Appellants collected the money but did not supply the item and so the Respondent wants a refund with interest. The whole transaction was given life by Exhibit PW1A according to the Respondent. The burden on the Respondent in the lower Court was to give by credible evidence that he advance the sum of N118,000,000.00 for that purpose and that the Appellants have breached that contract. The lower Court agreed that the Respondent had sufficiently proved that fact and therefore entitled to its claim. Is that correct, that is what this appeal will decide.
The Appellants as Defendants in the lower Court though has nothing to prove to establish their case against the Respondent since there is no counter-claim, however the Appellants also have something to prove having made an assertion. The Appellants did not deny receiving the sum of N118,000,000 from the Respondent and that the money has not been paid back but asserted that the money was not given to him for the purpose the Respondent claimed but rather it was given to him as the Respondent’s portion of contribution to make life more comfortable for the then Minister of
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Gas by providing accommodation and cars for the Minister. In the light of that assertion, the burden to prove that the purpose for which he received the money was to get accommodation and cars for the then Minister in return for favours from the minister rest on the Appellants. If from the evidence available before the Court, the Respondent (claimant) was able to prove his claim, the appeal will fail but if on the other hand, the Appellants (Defendants) were able to prove their assertion, the appeal will succeed. The case of the parties is different and has no meeting point as the reason the money was paid to the Appellants is like parallel lines that cannot meet. This means therefore that the fact that the Respondent gave N118,000,000.00 to the Appellants which sum has not been returned on its own cannot work against the Appellants. The reason the money was given is the most important issue here in my view. The Respondent first must prove that the money was paid to the Appellants in furtherance to Exhibit PW1A and it is only when this is proved that the Appellants will be required in rebuttal to show that the money was not paid to them for that purpose but
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rather for the purpose the Appellants have alluded to in the statement of Defence found on pages 115-121 of the record.
This is the appropriate place to formulate the issue for determination in this case. The issues as formulated by the parties in their briefs are similar. The Appellant formulated a single issue from the 4 grounds while the Respondent formulated two issues. I think I will adopt the single issue as formulated by the Appellants as in addressing that issue, the issue 2 of the Respondent will be addressed. For completeness and clarity, I will now reproduce the single issue for determination as formulated by the Appellants as mine to wit:
Whether in the circumstance of this case, the decision of the trial Court was not perverse and borne out of wrong evaluation of evidence before the Court.
This issue brings to bear the main duty of the lower Court, which is to evaluate the evidence before it and subsequently make a finding. This is the main duty of a Court that had the opportunity of taking evidence of the parties and their witnesses. An appellate Court should acknowledge this edge that the lower Court has over it when it comes to
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the issue of finding of facts based on evidence. It is in recognition of this fact that the decision are many to the effect that an appellate Court should not interfere with the finding of facts by the lower Court except if the finding is perverse. See Kamila vs State (2018) 8 NWLR (pt. 1621) 252. The decision of the apex Court in this regard in CIL Risk & Asset Management Ltd vs Ekiti State Govt & Ors (2020) LPELR-49565 (SC) is instructive. The Court held thus per Odili, J.S.C.:
“Getting to the meat of the matter is the concurrent findings of the two Courts below and whether or not this Court should enter into an interference thereof to upset what those earlier Courts did. In this case, I see no way out of disturbing those earlier findings of the two Courts below in the light of the presentations and having been guided by decisions of this Court, a few of which I shall lean onto in aid.
See Adesina V. People of Lagos State (2019) LPELR-46403 (SC) wherein I had the privilege to say:-
“The Supreme Court has indeed in a Plethora of cases stated what should first be available for the Court or even the Apex Court to disturb
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concurrent findings. Any of those happenings that could make the appellate reverse such findings are stated hereunder thus: (1) The findings of those Courts are perverse. (2) The findings have not been founded on legal evidence before the trial Court. (3) Where it is shown that the lower Courts relied upon or took into account extraneous matters which ought not to have been taken into account. (4) Where miscarriage of justice has been occasioned. See Babatunde v State (2013) 4 WRN 1 at 22; Atolagbe v Shorun (1985) 1 NWLR (pt.2) 360; (1985) 45 SC 250; Adimora v Ajufo (1988) 3 NWLR (pt.80) 1; Okulate v Awosanya (2000) 1 WRN 65; Enang v Adu (1981) 11-12 SC 25.” Per PETER- ODILI, J.S.C. (Pp.18-19, paras, F-D).
See also NYESOM V. PETERSIDE (2016) ALL FWLR (pt. 842) 1573 SC wherein this Court held as follows:-
“The evaluation of evidence and ascription of probative value.
Thereto are the primary duties of the trial Court which had the singular opportunity of seeing and hearing the witnesses testify and an appellate Court would ordinarily not interfere. In the instant case, where the findings of the trial Court and affirmation by the Court of appeal
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were not based on proper evaluation of evidence before it, the Supreme Court set same aside.”
“The Supreme Court will not interfere with concurrent findings of fact by two lower Courts, unless it is shown that the findings are perverse, or not dispassionate appraisal of the evidence, or that there is an error either of law of fact, which has occasioned a miscarriage of justice.”
Manifestly those exceptions or special circumstances which this Court envisage to impel the Court’s interfering and setting aside the earlier findings of fact are very much present in the instant case hence my intervention to disturb those findings which came about in ways that have miscarried justice and a lot has been said above to support my position.
In the light of the foregoing and the better articulated lead judgment, I do not hesitate in allowing this appeal and setting aside the decision of the Court of Appeal which had affirmed the decision of the trial High Court.”
This means therefore that if the finding of fact corresponds with the evidence before the Court, the appellate Court such should not interfere but if the finding does not correspond
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with the evidence then the appellate Court can interfere with the finding of the lower Court.
To determine whether the finding is perverse or not, I have to caution myself that I am not looking at the evidence afresh but rather scan through the evidence and see whether there is any link between the evidence and the finding of the Court. This is what I am going to do here and now.
The lower Court at page 262 of the record (page 17 of the judgment) made the following finding:
“In fact, I find that not only is the Plaintiff’s factual allegations in his pleadings proved by credible, oral and documentary evidence in this case, the Defendant’s allegations in their pleadings and the evidence they led in proof thereof appear fabricated and watery, and seems to be only an attempt to avoid Defendant’s liability to the Plaintiff for an amount which they have clearly admitted to have received from the Plaintiff and even attempted to part refund.”
The question is whether this finding is not borne out of the pleadings and evidence before the lower Court. The Appellants says it does not as there is no evidence connecting
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Exhibit PW1A to the sum of N118,000,000.00 advance to them by the Respondent. The other area of concern as presented by the Appellants is that even if the amount is properly connected to Exhibit PW1A, the condition precedent stated in the said Exhibit has not been satisfied and therefore the lower Court was wrong in its decision.
The above concerns or submissions of the Appellant is a clear invitation to look at the paragraphs of the statement of Claim both counsel in the briefs has called on this Court to look at and consider. These are Paragraphs 4,5,6,7,8,9,12 and 13 of the Statement of Claim found on pages 4-6 of the records:
1. The Plaintiff is a company incorporated in Nigeria under the Companies and Allied Matters Act having its registered office at No. 20 Ogunlana Drive Surulere Lagos State and carrying on the business of marketing, supplying and distribution of petroleum products with many outlets in Nigeria.
2. The 1st Defendant is a company duly registered in Nigeria with its business address at No. 23, Limpopo Street, Maitama, FCT, Abuja.
3. The 2nd Defendant is the Managing Director/Chief Executive Officer and the alter
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ego/the directing mind of the 1st Defendant’s company.
4. The Plaintiff avers that in the normal course of its business, the Plaintiff was approached by the Defendants within the jurisdiction of this Honourable Court and the Defendants offered for sale 50,000 metric tons of NAPHTA EX-PHRC to the Plaintiff for export purportedly emanating from Nigeria National Petroleum Corporation (NNPC).
5. Further to paragraph 4 above, the Defendants further represented to the Plaintiff that it had allocation from Nigerian National Petroleum Corporation (NNPC) for 50,000 metric tons of NAPHTA EX-PHRC for sale and that it had the requisite approval and capacity to transfer such products to prospective purchaser.
6. In concert with the representation for sale of the said products, the Plaintiff forwarded the sum of N118,000,000.00 (One hundred and eighteen million naira) to the Defendants (sometime in April, 2008) vide various manager’s cheques which were encashed and value received by the Defendants as payments for the 50,000 metric tons of NAPHTA EX-PHRC. The said banker’s instrument was received by the Defendants within the
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jurisdiction of this Honourable Court. At the trial of this suit, the Plaintiff shall rely on various instruments totaling N118,000,000.00 (One hundred and eighteen million naira) as payment for the said product.
7. The Plaintiff further avers that the physical delivery of the said 50,000 metric tons of NAPHTA EX-PHRC shall be done on or before the end of May, 2008 and the original letter of the allocation of the said product issued by National Petroleum Corporation (NNPC) shall be given to the Plaintiff before the said delivery was consummated.
8. The Plaintiff avers that it waited for four months from the date of purported delivery and no word was heard from the Defendants as to the letter for the 50,000 metric tons of NAPHTA EX-PHRC and no delivery of the said product to the plaintiff was effected.
9. The Plaintiff made several visits and telephone contacts to the Defendant to fulfill their roles and obligations in regard to the delivery of 50,000 metric tons of NAPHTA EX-PHRC to the Plaintiff and all attempts made by the Plaintiff were to no avail.
10. It then occurred to the Plaintiff that the 1st Defendant acting through
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the instrumentality of the 2nd Defendant had no 50,000 metric tons of NAPHTA EX-PHRC product for sale or any product whatsoever for sale and that the Plaintiff had been illicitly and unlawfully coerced into parting with N118,000,000.00 (One hundred and eighteen million naira) which had been obtained by the Defendant for their benefits.
11. The Plaintiff shall at the hearing of this suit lead evidence to the effect that the Defendant acting jointly and severally had fraudulently approached it to part with the sum of N118,000,000.00 (One hundred and eighteen million naira) and that no product was in fact to be delivered to the Plaintiff.
12. In a bid to refund the funds utilized by Defendants illegally obtained from the Plaintiff, the Defendants opted to amicably resolve the issue between the parties and issued a Spring Bank’s cheque (now known as Enterprise Bank Limited) of N50,000,000.00 (Fifty million naira) with account no 0111001002240 belonging to the 1st Defendant to the Plaintiff as part payment for the indebtedness of the Defendants. The Plaintiff further states that the cheque so issued sometime in March, 2009 was returned unpaid
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and same classified “dud cheque” and the Plaintiff shall at the trial of this suit rely on the said cheque.
13. By a petition dated the 4th of January, 2010, the Plaintiff instructed its solicitor to petition the Economic and Financial Crimes Commission (EFCC) to investigate the Defendants for issuing dud cheque against the law of the land and the said petition shall be relied upon at the trial of this suit.
14. The Plaintiff shall at the trial of this suit contend that the act of the Defendants for representing to the Plaintiff that a product was available for sale consequent upon which funds totaling N118,000,000.00 (One hundred and eighteen million naira) was advanced to the Defendants and when in fact the Defendants knew that there was no such product in existence amounts to fraud and obtaining under false pretence.
15. The Plaintiff had made several demand for the refund of its fund fraudulently obtained by the Defendants and had written through its solicitors demand for the said sum of N118,000,000.00 (One hundred and eighteen million naira) without success.
16. At the trial of this suit, the Plaintiff shall
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rely heavily on the following documents:
1. Plaintiff’s Solicitors’ letter dated 5th March, 2013
2. Zenith Bank’s cheque dated 7th April, 2008
3. Spring Bank’s cheque dated 7th April, 2008
4. Spring Bank’s cheque dated 7th April, 2008
5. Petition letter to Economic and Financial Crimes Commission dated 4th January, 2010
6. Red star domestic airway bill dated 7th January, 2010
7. Spring Bank’s cheque issued by the Defendant dated 13th of March, 2009.
What is the purport of those paragraphs? Those paragraphs which the evidence of the Respondent in the lower Court correspond with is clearly the complaint and the cause of action of the Respondent in the lower Court. There is pleading and evidence which the lower Court believed that the Respondent gave the Appellant the sum of N118,000,000.00.00 for the supply of 50,000 metric tons of NAPHTA EX-PHRC which item was not supplied or delivered. The Appellants gave a cheque of N50,000,000.00 to the Respondent which was not honoured by the bank. This evidence is undisputed by the Appellant except for the purpose the money was given to the
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Appellant. The lower Court obviously based its decision on Exhibit PW1A. The position of the Appellants is that the lower Court was wrong to so hold since in the pleadings no reference was made to Exhibit PW1A and there is nothing that linked the payment of the sum N118,000,000 to the said exhibit. This according to the Appellants is a fundamental defect in the case of the Respondent in the lower Court and a flaw to the decision of the lower Court.
I cannot seem to agree with the Appellants’ counsel that no reference was made to Exhibit PW1A both in the pleading and the evidence before the Court. This cannot be correct. If the case of the Respondent in the lower Court had ended in the Statement of claim found on pages 1-24 of the records, the Appellants would have been right as Exhibit PW1A was not pleaded or frontloaded by the Respondent. This was however corrected when the Respondent filed reply to the Defendant’s statement of Defence found on pages 142-150 of the record. The Respondent specifically pleaded the document admitted as Exhibit PW1A and front loaded same.
There is evidence in my opinion as the lower Court has held that, there is
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evidence before the Court that the money was paid to the Appellants for the supply of 50,000 metric tons of NAPHTA EX-PHRC. The Appellants did not deny that the money was received by them and the money has not been returned. The Appellants also did not deny that they entered into Exhibit PW1A to supply the item to the Respondent. The main thrust of the Appellants case is that the said Exhibit was not the bases for which he received the sum of N118,000,000 from the Respondent. To buttress this point, Appellants’ counsel submitted that there is no connection between the said money with Exhibit PW1A, this is more so that the condition precedent to the application of the exhibit has not been satisfied. The two conditions according to the Respondent are that the payment is to be made in dollars and that the payment is to be made at the point where the original letter of allocation of the product from NNPC is handed over to the purchaser. These arguments made no sense to the lower Court. The question is whether the arguments are really worthless?
In the first place, I must agree with the submission of the counsel to the Appellants that once there is a condition
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that needs to be satisfied before an agreement will come into force, the general position of the law is that such a condition becomes condition precedent. The non-existence of the condition will be an obstacle to the enforcement of the agreement and will prevent anyone from getting any benefit from the agreement. Condition precedent has been defined as one which delays the vesting of a right until the happening of an event. See Nigercare Development Co., Ltd vs Adamawa State Water Board & Ors (2008) 2-3 S.C (pt. II) 202. The implication of a condition precedent is that none of the parties can benefit from the agreement or claim any right therein without the fulfillment of the condition precedent. In this regard, the Supreme Court case of Tsokwa Oil Marketing Co (Nig.) Ltd vs Bank of the North Ltd (2002) 11 NWLR Ltd (pt. 777) 163 is instructive. The apex Court held thus:
“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep
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and continue the thing (ibid). As to when conditions are precedent or subsequent, see 30 Law Journal 686; Porter v. Shephard 6 T.B. 665, Cooper v. London, Brighton & Southern Railway 4 Ex. D88; Barnard v. Faber (1893) 1 Q.B.340, cited WARRANTY; Horrigan v. Horrigan (1904) 1 Ir. R.22, 271 (Stroud’s Judicial Dictionary Vol. 1 A – C page 538). See also the case of Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd. (1999) 8 NWLR (pt.613) 119 at 127 G-H wherein Aderemi, J.C.A. held as follows: “By Exhibits F and G, the parties have entered into what, in law, is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can follow.”
A condition precedent in an agreement as mentioned above is a condition without which occurrence no right under the contract can be donated to any of the parties.
There is a difference between a condition precedent and the terms of a contract. The difference is that as mentioned above, if the condition precedent is not fulfilled there is no right passed to any of the parties. It is like there is no
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agreement that can pass right to the parties. On the other hand, the terms of the agreement acknowledges the fact that there is an agreement that passes right to the parties however for the parties to enjoy the benefit of the agreement, the role that the party must play must be defined and followed. This difference, it may be argued is none existence in substance but in my opinion it is important. In my view, I do not agree that the issues raised by the Appellant are condition precedent to the flow of the agreement but rather are terms of the agreement. As terms of the agreement, the parties can vary same under the rule of exception where oral evidence cannot vary a documentary evidence. The agreement is binding between the parties but if the terms there in are not fulfilled then that party who has failed to fulfill the term will loss out. If it is a condition precedent, the agreement is like non-existent. In spite of the difference I try to bring out the practical effect of both is that the Respondent cannot benefit from the agreement if he has not performed his own part of the agreement. The terms of the agreement that is Exhibit PW1A which the Appellants
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calls a condition precedent, is that, payment is to be made in dollars and when the original letter of allocation of the product from NNPC is handed over to the purchaser. The question calling for answer here is, whether if the purchase price is not made in dollars but in naira, does that make the agreement unenforceable? Furthermore, the fact that payment was made before the original letter of allocation of the product from NNPC is handed over to the Respondent does it make the agreement unenforceable? My candid answers to these questions is NO. Once there is evidence that the payment was in connection to the supplies expected in line with the agreement, the fact that payment was made in naira instead of dollars and payment was paid earlier than expected is of no moment as far as I am concerned.
The real concern here is, whether there is enough evidence for the lower Court to act on to the effect that the sum of N118,000,000 paid by the Respondent to the Appellants was for the supply of the items and nothing else. This is particular so when the Appellants have adduced evidence in line with pleading that the money was paid to him as the Respondent’s
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contribution to give an appointed Minister of the Federal Republic of Nigeria a befitting life style as a minister in return for anticipated favour. Both parties have some share of the burden of proof. The first burden is on the Respondent to connect the payment to the agreement to establish his case. This burden does not shift. It is after when the Respondent has discharged this burden that the burden will now shift to the Appellants to rebut the Respondent’s case to the effect that the payment was not for the supplies but for the purpose it has shown.
The Appellants are emphatically submitting that the Respondent could not connect the payment to the agreement. I have looked at the pleadings and the evidence in the record, I am not sure I will agree with the submission of the Appellants’ counsel. Exhibit PW1A was made 7/4/2008 between the parties. The Appellants do not deny that and also did not deny payments made to them via manager’s cheque made on 7/4/2008, the same day the agreement was made. The cheques which are those of Spring Bank and Zenith Bank are Exhibits PW1C-PW1F. The evidence of PW1 found on pages 240-242 of the record
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showed that the payment made was for the supply of the item. The Appellant in its evidence in pages 243-244 of the records admitted that he has not supplied the item but said the transaction covered by the agreement is for another transaction. In the light of the evidence before the lower Court to the effect that there is an agreement between the parties that the Appellants will supply 50,000 metric tons of NAPHTA for the sum of N118,000,000 which was paid by the Respondent to the Appellants by manager’s cheque on the same day the agreement was entered, the refund of N50,000,000 cheque from the Appellants to the Respondent which was not honoured, the burden is on the Appellants to show that the payment was not in respect of the agreement and that the agreement he admitted to was in respect of another transaction. In the light of the admission by the Appellants that the sum of N118,000,000 was given to him by the Respondent, the Appellants have the burden to show that the amount he received from the Respondent was his portion of contribution from friends to the then Minister to give him a luxury life style benefiting of his status as a minister.
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The Appellants evidence in this regard is very weak. It takes more than just to make as an assertion. The Appellants needed to have gone further to show the total contribution made, how much the Appellants contributed to the fund raising, who were the other friends or associates who contributed to the fund raising and most important call one or some of them as witness. The Appellants in my view is looking for a way out of the agreement and are holding unto anything they possibly can to escape liability. I cannot agree more with the lower Court when the Court hold in pages 262 of the record (page 17 of the judgment) that the Appellants’ defence is fabricated and watery and therefore an attempt to escape liability. I resolve the sole issue in favour of the Respondent.
On the whole, this appeal lacks merit, it fails and it is dismissed. The decision of Hon. Justice A. B. Mohammed in Suit NO. FCT/HC/CV/2617/13 – First Deepwater Discovery Limited vs Burton Resources Limited & Anor delivered on 2/3/15 is hereby affirmed.
I award cost of N500,000 against the Appellants in favour of the Respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the
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lead judgment just delivered by my brother, EBIOWEI TOBI, J.C.A.
I agree with his reasoning and conclusions. I also dismiss the appeal.
The decision of the High Court of Justice in Suit No. FCT/HC/CV/2617/2013 delivered on the 2nd of March, 2015 is hereby affirmed.
I abide by the consequential order made as to costs.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment just delivered by my learned brother Ebiowei Tobi J.C.A.
I agree with the reasoning and conclusion arrived at. I see no merit in the appeal and thereby dismiss the same.
I abide on all orders made, including that as to costs.
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Appearances:
Adamson Adeboro For Appellant(s)
A. Awosika SAN with him, S. L. Tasmiya (Ms.) For Respondent(s)
