DOMINICOL PHARMACEUTICAL IND. LTD & ANOR v. NWOGU (2022)

DOMINICOL PHARMACEUTICAL IND. LTD & ANOR v. NWOGU

(2022)LCN/16379(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/AW/107/2009

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

1. DOMINICOL PHARMACEUTICAL IND. LIMITED 2. COLLINS C. OSIGWE APPELANT(S)

And

PHARMACIST FELIX CHINENYE NWOGU RESPONDENT(S)

RATIO:

WHETHER AN ORAL EVIDENCE WILL VARY A DOCUMENTARY EVIDENCE.

See also the case of BUNGE vs. GOVERNOR RIVERS STATE (Supra) cited by Respondent’s Counsel wherein the Court held that: “In the interpretation of document, oral or parole evidence will not be admissible, among other things, to contradict or alter it where the document is clear and unambiguous”. FREDERICK OZIAKPONO OHO, J.C.A.

POSITION OF LAW WHERE EVIDENCE ELICITED FROM THE CROSS-EXAMINATION OF A DEFENCE WITNESS IS IN LINE WITH THE FACTS PLEADED BY THE PLAINTIFF

It is a different kettle of fish altogether and the settled law for that matter where evidence elicited from the cross-examination of a defence witness and which is in line with the facts pleaded by the Plaintiff. In that case, it would form part of the evidence produced by the Plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties. But, not when it is in respect of issues not joined between the parties. See ADEOSUN vs. GOV. OF EKITI STATE (2021) LPELR- 7843 SC; FREDERICK OZIAKPONO OHO, J.C.A.

WHETHER A COUNSEL ADDRESS WILL TAKE THE PLACE OF EVIDENCE

UBN PLC & ANOR vs. AYODARE & SONS (NIG) LTD (2007) LPELR-3391 SC, where the apex Court per ONNOGHEN, JSC had this to say on the subject:
“It is also settled law that address of counsel however brilliant, cannot take the place of evidence particularly where there is no evidence, as in the instant case, in support of the submission(s).” (Dissenting)
See the case of A.N.P.P. vs. USMAN (Supra). FREDERICK OZIAKPONO OHO, J.C.A.

WHETHER DOCUMENT TENDERED CAN BE USED FOR ANOTHER PURPOSE OTHER THAN THE PURPOSE TENDERED FOR

The settled position of the law is that a document tendered shall not be taken for another purpose other than the purpose for which it was tendered. See the decision of this Court in ONOBA vs. ABUJA BUILDING PRODUCTS LTD & ANOR (2014) LPELR -22704 CA, in which TUR, JCA had this to say on the subject:
“The Power of Attorney was tendered in the lower Court to prove the three main purposes it was pleaded. In Ishola vs. UBN Ltd. (2005) All FWLR (Pt.256) 1202 Kalgo, J.S.C held at page 1213 paragraphs “F”-“H” that: “It is trite law that a Court should not and cannot make a case for the parties different from what they set out in their pleading. See Adebanjo vs. Brown (1990) 3 NWLR (Pt.141) 661 at 675. The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose intended by the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it. This, in my view is the only legitimate use of the document admitted in evidence in Court.” FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State, sitting in Onitsha (hereinafter called: “the Court below”) delivered on the 17th day of September, 2008 Coram: VIN N. AGBATA, J wherein the Court entered judgment for the Plaintiff/Judgment Creditor/Respondent. The fact of the case is that the Respondent as Plaintiff instituted an action via a Writ of Summons and Statement of Claim dated the 11th day of May, 2007 against the Appellants/Defendants claiming as follows:
1. Arrears of salary from August, 2005 till date (21 months) at N40,000 per month amounting to N840,000.00
2. Annual leave allowance for 3 years at N20,000.00 per year amounting to N60,000.00
3. Annual conference allowance for 3 years at N15,000.00 per year amounting to N45,000.00.
4. General Damages for denial and deprivation of the use of the salaries by the Respondent/Plaintiff and for wrongful use of the Respondent/Plaintiff’s certificate and professional services amounting to N3,000,000.00.

At the end of the trial in his well considered judgment, learned trial Judge gave judgment in favour of the Plaintiff, who is now Respondent stating that the Defendants shall pay to the Plaintiff the sum of N945,000.00 being arrears of salaries for a period of 21 months; annual leave allowance for 3 years; and annual conference allowance for 3 years. In addition, that the defendants shall pay to the Plaintiff the sum of N30,000.00 being general damages for breach of contract. See page 165 of the Records. It is against this finding that the Appellants have appealed to this Court claiming that the orders made against him by the Court below, were made against the weight of evidence given in this suit.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of five (5) issues for the determination of this Appeal as follows:
1. Whether the judgment delivered was in tandem with the weight of evidence given?
2. Whether the trial judge was right by ignoring and failing to consider the crux evidence of the Appellants while reaching his decisions?
3. Was the trial judge right in holding that the Respondent was wrongfully dismissed while in his relief did not seek for wrongful dismissal?
4. Was the trial judge right in awarding the sum of N30,000.00 as general damages for breach of contract when such relief was not sought for by the Respondent?
5. Was the trial judge right in leaving out the application of the 2nd Appellant to strikeout his name for misjoinder in his judgment?

On the part of the Respondent, the sole issue nominated for determination of this Appeal is, thus;
“Whether based on preponderance of evidence, the lower Court was right to have entered judgment in favour of the Respondent?”

What seem to stand out clearly, is the fact the five (5) issues nominated by the Appellant can conveniently be subsumed under the sole issue nominated by the Respondent. However, due to reasons of comprehensiveness, this appeal shall be heard and determined based on the issues nominated by the Appellant. Learned Counsel addressed Court extensively, citing plethora of cases in support of their positions. The Appellants’ brief of argument dated the 11-10-2012, settled by CHIEDOZIE OKEMILI ESQ., was filed on the same date, while the brief of argument of the Respondents dated 4-2-2013 settled by C. H. ONYIUKE ESQ., was filed on the same date and deemed filed on the 5-6-2017. On the 8-2-2022 at the hearing of this appeal, learned Counsel for the parties adopted their respective briefs of arguments and urged the Court to decide in favour of their sides.

SUBMISSIONS OF APPELLANTS’ COUNSEL:
APPELLANT:
ISSUES ONE, TWO, THREE and FOUR:
Learned Counsel for the Appellant in his brief of argument argued issues one, two, three and four together and issue five (5) was argued separately, thus:
The contention of learned Counsel here in arguing these issues is that from a clear perusal of the entire judgment, it is clear that the judgment and reasons for the judgment were not drawn from the crux of the entire evidence given during trial. Counsel posited that the trial judge in his judgment did not consider and never made use of the evidence of the Appellants and the relevant provisions of law cited by the Appellants Counsel.

Counsel further contended that the crux of the Respondent’s matter at the Court below was that his claim of the alleged arrears of salaries and damages accruing from denying him the alleged arrears of salaries and the alleged continued usage or employing his certificates and professional position in the running of the Appellant’s business. Counsel argued that parties are bound by their pleadings stating that the trial Judge erred in law when he awarded the sum of N30,000.00 cost against the Appellants as compensation for unlawful termination of the Respondent’s employment which termination was never part of the claim or pleadings of the Respondent.

Also, Counsel stated that the Court is not a “Father Christmas” to pronounce or award that, which was not pleaded or claimed by the Respondent. Counsel cited the case of IKOTUN vs. OYEKANMI (2008) ALL FWLR (PT…) 1271 SC. Counsel further drew attention to the fact that the Respondent led evidence on that, but could not establish the facts alleged. Again, that during cross-examination the Respondent admitted that his practicing licence, which enabled him to register the 1st Appellant for business in the year 2004 expired in December, 2004. Counsel reproduced the Respondent’s answer during cross-examination as follows:
“Annual practice fee is one of the conditions for the registration of a pharmaceutical company in any given year. The practice licence, which was issued to me on 14th day of May, 2004 is not valid up till today. It has expired in December 2004.”

Counsel also argued that the trial Judge needed no further evidence to form his opinion that the Respondent who did not renew his annual practicing licence that expired in December, 2004 till July, 2007 when he paid his registration fees for the years of 2005 and 2006 in arrears, was within the space of two years unavailable and unqualified to practice his profession. Learned Counsel referred this Court to the provision of Section 14(1) Cap. P17 of the Pharmacists’ Council of Nigeria Act, LFN 2004. According to Counsel, the Appellants gave evidence firmly establishing that the Respondent was not only unavailable within the periods he claimed to be at the employment of the Appellants, but also through evidence established the Respondent’s incompetent to register the 1st Appellant for the 2005 and 2006 business years due to the expiration of his practicing licence.

Learned Counsel further picked holes in the judgment of the Court below by ignoring the entire evidence of the Appellants on this issue and the Constitution of the Association of the Pharmaceutical Society of Nigeria and the Pharmacists Council of Nigeria Act cited by the Appellants’ Counsel in his written address, faulting the Respondent’s reliance on Exhibit ‘PG’ which the trial Judge heavily relied upon to hold that the Respondent was still in the employment of the Appellant as regards his claim. See Section 4 of Chapter 1; Section 5.1 – 9 of Chapter 2 of the Constitution of the Pharmaceutical Society of Nigeria for aims and objectives and membership of the society respectively.

It was contended by Counsel, that these sections respectively restricted membership and full membership to pharmacists alone and that membership is not extended to pharmaceutical companies like the 1st Appellant. See also Section 14 (1) Cap 17 Laws of the Federation of Nigeria, 2004 on the Pharmacists Council of Nigeria Act.

Again, Counsel contended that the trial Judge erred in law on placing reliance on Exhibits ‘P6’ and holding on it as evidence and relevant fact to give judgment in favour of the Respondent. Counsel also contended that DW2, one Nnamdi Osigwe in his evidence corroborating the evidence of the DW1 made it clear that he was not a member of the 1st Appellant Company. He further argued that in law, the question remains whether the act of DW2 who is not a Director, Agent or member of the company can bind the Respondents. This question according to Counsel can only be answered in the negative. On the written deposition on oath of the DW2, Counsel drew attention to pages 43 and 44 of the Records, paragraphs 12 – 18, 22 and 24 of the DW2’s written deposition on oath. Counsel therefore disclosed that these pieces of evidence were never contradicted by the Respondent and his Counsel during cross-examination. On the principles of law on un-rebutted evidence, Counsel cited the cases of OSHODI vs. EYIFUNMI (2000) FWLR (PT. 8) 1271 AT 1310, PARA. D, AJEKPEMEVOR vs. ONAFEKO (2000) FWLR (PT. 9) 1425 AT 1427, 1436 PARA., B.

Learned Counsel further submitted that the act of DW2 in counter signing Exhibit P6, which the Court below founded upon as one of his findings to enter judgment for the Respondent is not tenable in law. Counsel argued that DW2 in law, cannot without any express authority of the first Appellant company sign any document that will bind the Respondents. According to Counsel, the Company in law is an independent and legal personality of its own as enunciated in a locus classicus case of SALOMON vs. SALOMON cited with approval by Nigerian Courts in coterie of cases like MARINA NOMINEES LTD vs. F.B.I.R. (1986) 2 NWLR (PT. 20) AT 48. Relying on the above stated authorities, Counsel urged this Court to hold that the judgment of the Court below is against the weight of evidence given in this suit.

ISSUE FIVE:
Was the trial judge right in leaving out the application of the 2nd appellant to strikeout his name for mis-joinder in his judgment?

In arguing this issue, Learned Counsel submitted that the pending application of the 2nd Appellant praying that his name be struck out of the suit being a different person from the 1st Appellant Company, which the Court below totally ignored and omitted in his judgment, the Court below ought to have considered the application and make a ruling either granting or refusing the application irrespective of how insignificant the application might be. Counsel contended that this is a well settled principle of law. See the case of OSHO vs. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) AT 195. Counsel further disclosed to this Court that this issue was raised as an issue in their final written address but the trial Judge ignored same. Counsel urged this Court to hold that the Court is duty bound to pronounce on all the issues placed before it.

RESPONDENT’S SOLE ISSUE:
Whether based on preponderance of evidence, the lower Court was right to have entered judgment in favour of the respondent?

In arguing this issue, Counsel submitted that civil suits are decided on the balance of probabilities or the preponderance of evidence. Counsel cited the cases of WOLUCHEM vs. GUDI (1981) 5 SC 291, ODUTOLA vs. AILERU (1985) 1 NWLR (PT. 1) 92, MOGAJI vs. ODOFIN (1978) 4 SC 91, BALOGUN vs. AKANJI (1988) 1 NWLR (PT. 70) 301 particularly the case of OSUJI vs. EKEOCHA (2009) 16 NWLR (PT. 1166), 81, 116. PARAS. B – F.

Counsel further referred this Court to the cases of EBBA vs. OGODO (1989) SCNLR 372, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66, DURU vs. NWOSU (1989) 4 NWLR (PT. 113) 24, AJADI vs. AJIBOLA (2004) 16 NWLR (PT. 898) 91, OLALOMI IND. LIMITED vs. N.I.D.B. LIMITED (2009) 16 NWLR (PT. 1167), 266 at 302 – 303, PARAS. E – B. Also, Counsel argued that flowing from the above authorities, evaluation of evidence is a duty which falls almost exclusively within the domain of the trial Court which alone has the unique advantage of hearing and watching the demeanour of witnesses in the course of their testimonies. Counsel contended that it is the duty of the Court below to consider the entire evidence before it, both oral and documentary, before giving judgment.

It is the argument of Counsel that the Court below properly evaluated the evidence before it having observed the witnesses at the trial before coming to its conclusion. Counsel submitted that from the evidence of the witnesses and the documentary evidence admitted by the Court below and the judgment of the Court, there is nothing to show that the judgment of the Court below was perverse or that it was arrived at based on wrong principles of law. Counsel urged this Court to so hold.

The further argument of Counsel is that with reference to the 1st Appellant’s statement of defence and the Appellants’ reply to statement of defence to counter-claim at pages 24 and 93 of the Records respectively, that there was no where it was pleaded by the Appellants that the Respondent was unqualified to practice his profession and consequently did not register the 1st Appellant as a result of the un-qualification. Counsel argued that evidence elicited during cross-examination not pleaded goes to no issue. See the cases of NSIRIM vs. ONUMA CONSTRUCTION NIGERIA LIMITED (2001) 7 NWLR (PT. 713) 742, NWANKWO vs. OFOMATA (2009) 11 NWLR (PT. 1153), 496 at 516, PARAS F – G.

It was further contended by Respondent’s Counsel that the issue of un-qualification of the Respondent to practice was introduced for the very first time in the Appellants’ final written address at the Court below. Counsel argued that the address of Counsel, no matter how beautifully couched, cannot take the place of evidence in a trial. See the case of A.N.P.P. vs. USMAN (2008) 12 NWLR (PT. 1100), 1 at 91, PARAS A-E.

Again, Counsel argued that Exhibit ‘P5’ was a document tendered by the Respondent at the Court below in proof of the fact that his annual fees were paid for the year 2004. It is the submission of Counsel that documents tendered shall not be taken for another purpose other than the purpose for which it was tendered. Counsel cited the case of ALHAJI AMINU ISHOLA vs. UNION BANK OF NIGERIA LIMITED (2005) ALL NWLR (PT. 256) 1203 at 1213 PARAS F – G. Learned Counsel urged this Court to hold that the said Exhibit ‘P5’ was tendered in proof of payment of annual fees of 2004 and nothing more.

It is the further contention of Counsel that the Appellants had singled out the provisions of only Section 14(1) Cap 17 Laws of the Federation of Nigeria, 2004 without considering other related sections. Counsel submitted that considering the whole gamut of the above section, it is not the intendment of the law that non-payment of practicing fees by the Respondent disqualified the Respondent from practicing as a Superintendent Pharmacist as argued by the Appellants. According to Counsel, a complete and critical reading would reveal that the intendment is to ensure compliance that is, that practicing fees are duly paid. Counsel stated that Section 14(6) provides in clear terms the punishment for Pharmacists who fail to pay their dues. Counsel argued that Section 14(1) does not in any way or imagination strip the offender (Pharmacist) of his certificate or his employment.

Learned Counsel further argued that the law has not changed on the principle that to get the true intention of the lawmaker, the Court is enjoined to read provisions of a statute in its entirety to discover same. Counsel cited the cases of ORJI vs. P.D.P (2009) 14 NWLR (PT. 161) 310 at 369, PARAS. C – E, ADAMS vs. UMAR (2009) 5 NWLR (PT. 1133) 41 at 108, PARAS. E – F, A. G. ABIA STATE vs. A.G. FEDERATION (2005) 12 NWLR (PT. 941) 1 S. C. Counsel submitted that for this Court to determine the meaning and effect of Section 14(1) Cap 17 Laws of the Federation Of Nigeria, 2004, the entire Section 14 ought to be read as a whole.

It was further also submitted that where the words of a statute are plain and unambiguous, no interpretation is required; the words must be given their natural and ordinary meaning. It is the further submission of Counsel that the Court have a duty when dealing with or interpreting a statutory provision to give the used words their ordinary interpretation and meaning in the context of the entire provisions of the law where the words are clear. See the cases of KASUNMU vs. SHITTA-BEY (2006) 17 NWLR (PT. 1008) 372 at 415, PARAS. F – G, 430, PARAS. F – G, EJUETAMI vs. OLAIYA (2002) 18 NWLR (PT. 746) 572, N.P.A. vs. LOTUS PLASTICS LIMITED (2005) 19 NWLR (PT. 959) 158, OBASANJO vs. YUSUF (2004) 9 NWLR (PT. 877) 144, A. G. BENDEL STATE vs. A.G. FEDERATION (1982) 3 NCLR 1, EKEOGU vs. ALIRI (1991) 3 NWLR (PT. 179) 258. Counsel urged upon this Court to give the provisions of Section 14 Cap 17 Laws of the Federation of Nigeria, 2004 its ordinary meaning and hold that non-payment of practicing fees does not disqualify the Respondent who has not paid his dues from practicing as a Pharmacist.

On the issue of N30,000.00 costs awarded against the Appellants as compensation for unlawful termination of the Respondent’s employment which termination of appointment was never part of the claim or pleadings of the Respondent, it is the submission of the Respondent’s Counsel that the Court below had the powers and jurisdiction to have awarded the sum of N30,000.00 general damages in favour of the Respondent for breach of contract.
Counsel submitted that on the natural meaning of general damages as awarded by the Court below, it was held in the case of GARI vs. SEIRAFINA NIGERIA LIMITED (2008) 2 NWLR (PT. 1070) 1 AT 19 – 20, PARAS. A – A that; “General Damages are those damages which the law implies in every breach and every violation of a legal right…”. See also the cases of FAMOJIRO vs. OTAMU (1955 – 56) NWLR 67, OSUJI vs. ISIOCHA (1989) 3 NWLR (PT. 111) 623, ODULAJA vs. HADDAD (1973) 11 S. C. 357, INCAR NIG. LIMITED vs. BENSON TRANSPORT LIMITED (1975) 4 SC 37.

Counsel further cited the case of GARI vs. SEIRAFINA NIGERIA LIMITED (SUPRA) at PAGE. 27, PARAS. A – C, wherein the Court held that: “…Party in respect of a claim of general damages is not required to specifically plead and strictly prove the amount claimed in a claim of general damages”. Flowing from the above authorities, Counsel argued that it is not the requirement of the law that the Respondent ought to have pleaded general damages before being granted with same by the Court below. Counsel further submitted that the award of general damages granted by the Court below constitutes a consequential order which the Court has the power and jurisdiction to grant. See the case of AKINBOBOLA vs. PLISSON FISKO NIGERIA LIMITED & ORS (1991) 1 NWLR 270, 288. For this reason, Counsel submitted that the grant of the award of N30,000.00 is a consequential order, the Court having found that Appellants’ treated the Respondent shabbily and threw him out of the office thereby unlawfully terminating his contract of employment.

Counsel further referred this Court to the Supreme Court decision in the case of AMAECHI vs. INEC (2008) 5 NWLR (PT. 1080) 227 AT 345, PARAS. C – E held as follows: “Even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment which it follows”. Also at pages 324 – 325, PARAS. A – 8, it was further held that: “This Court and indeed all Courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low gets the justice which their case deserves. See Section 6(6) of the 1999 Constitution (As Amended) and Section 10(2) of the Interpretation Act, Cap 123, Laws of The Federation, 2004.

In view of the above decisions and provisions, Counsel argued that there can be no doubt that there is a plenitude of power available to the Court to do that which the justice of the case deserves. Counsel submitted that the Constitution having conferred the jurisdiction on the Court below to hear and determine a suit also confers such powers as reasonably necessary to enable an act to be done. Counsel further submitted that in view of the argument above, the Court below was right to have granted general damages in favour of the Respondents for wrongful termination of contract. It is also the submission of Counsel that the Court having found that there was breach of contract had the power to grant the relief of general damages as consequential reliefs.

According to Counsel, another grouse of the Appellants which he proffered argument upon in his brief is that the Court below narrowed down its mind to Exhibits ‘P9’ and ‘P6’ and entered judgment in favour of the Respondent when DW2, one Nnamdi Osigwe in his evidence corroborating the evidence of DW1 made it clear that he was not a member of the 1st Appellants’ Company. Counsel drew attention to the fact that it was not in dispute that the Respondent was a salary earning employee. The contract of employment Exhibit ‘P4’ provided for the Respondent’s salary in 2002 when he started work to be N30,000.00. By Exhibit ‘P6’, the Respondent showed that there was an increase of his salary from N30,000.00 to N40,000.00.

The said Exhibit ‘P6’ was dated the 8th day of August, 2008 signed by the Respondent himself and also counter signed by the 2nd Appellant who signed on behalf of the 1st Appellant. The same 2nd Appellant signed Exhibit ‘D8’. Under cross-examination of PW1, Counsel said that he agreed that the 2nd Appellant signed Exhibit ‘D8’. He (PW1) also agreed under cross-examination that Exhibit ‘D8’ was made in favour of Pharmaceutical Society of Nigeria. See page 160 of the Records. Counsel submitted that Exhibits ‘P6’ and ‘D8’ were signed by the 2nd Appellant on behalf of the 1st Appellant. It is also the further submission of Counsel that the acts of the Defendants in counter signing Exhibit ‘P6’ and signing Exhibit ‘D8’ leaves no one in doubt that a reasonable person would take him to be an officer of the 1st Appellant. Counsel referred this Court to SECTION 169 OF THE EVIDENCE ACT, 2011 and the case of OLALEKAN vs. WEMA BANK PLC (2006) 13 NWLR (PT. 998) 617 at 625 – 626, PARAS. H – G wherein the Supreme Court of Nigeria held that: “If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was the true representation of facts and the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying the fact as represented”. Counsel urged this Court to hold that by signing Exhibits ‘P6’ and ‘D8’, the 2nd Appellant had made the Respondent believe that he the 2nd Appellant had the authority to sign the said documents on behalf of the 1st Appellant and that he the 2nd Appellant had been acting as an officer of the 1st Appellant.

It is the further contention of Counsel that by paragraph 11 of DW1’s deposition at page 40 of the Records if placed side by side the Respondent’s Exhibits ‘P6’ and ‘P9’ on an imaginary scale of justice, the Respondent’s Exhibits ‘P6’ and ‘P9’ weighs more and are clear and establishes the truth. Counsel argued that it is trite law that documentary evidence being permanent in form is more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence. See BUNGE vs. GOVERNOR RIVERS STATE (2006) 12 NWLR (PT. 995) 573, 573 at 617, PARAS. H – A wherein the Court held that: “In the interpretation of document, oral or parole evidence will not be admissible, among other things, to contradict or alter it where the document is clear and unambiguous”. Counsel cited the cases of C.D.C. (NIG) LIMITED vs. SCOA (NIGERIA) LIMITED (2007) 6 NWLR (PT. 1030) 300 at 366, PARAS. G- H; FAYEMI vs. ONI (2009) 7 NWLR (PT. 1140) 223 AT 291, PARAS. C, AGBAREH vs. MIMRA (2008) 2 NWLR (PT. 1071) 378 at 414 – 415.

Learned Counsel therefore urged this Court to give Exhibit ‘P6’ its ordinary and plain meaning in the context that the said Exhibit ‘P6’ established that the Respondent had received his monthly salary up to March, 2005 establishing the fact that he was still in the employment of the 1st Appellant as of the time the said Exhibit ‘P6’ was written.

Counsel further submitted that the Appellants gave evidence that the Respondent was not in any way being owed by the Appellants and that the only negotiation the 1st Appellant had with the Respondent was all together a new contract concerning the Respondent’s registering and licensing the 1st Appellant for business in the year 2007. See paragraphs 22 and 23 of the DW1’s deposition at page 41 of the Records. According to Counsel, it is also the Appellants’ case that the Respondent unceremoniously terminated his employment with the 1st Appellant but was later contracted as an independent Pharmacist to register the 1st Appellant for the year 2007 which registration he never carried out after collecting the initial down payment of N120,000.00. See paragraph 6 of the 2nd Appellant’s further written statement on oath at page 100 of the Records. To establish the veracity of the Appellants’ evidence, Counsel posited that it is pertinent to look at Exhibits ‘D10’ at page 110 of the Records tendered by the Appellants in an attempt to show that the Respondent ceased to work in 2004 or that salary payments are not countersigned. He said that the said Exhibit ‘D10’ was procured from the Respondent after he (Respondent) had written Exhibit ‘P7’ (letter from the Respondent’s solicitors) to the Appellants warning them of consequences of further withholding the Respondent’s arrears of salaries. Counsel also said that Exhibit ‘P7’ is dated 21st March, 2007, see page 20 of the Records, while Exhibit ‘D10’ is dated 23th March, 2007 at page 110 of the Records. According to Counsel, the said Exhibit ‘D10’ was very clear as to the position of the Respondent as at 23th March, 2007. Counsel contended that Exhibit ‘D10’ even goes to the advantage of the Respondent to show when last he received N30,000.00 as salary and that Exhibits ‘D.10’ and ‘P6’ truly brings out the correct position of the Respondent as per his salaries.

Again, learned Counsel argued that the two (Exhibits P7 and D10) pieces of evidence ground the Respondent’s evidence that his salaries were always paid months after they were due and in piece-meal. Counsel referred this Court to the case of DIM vs. ENEMUO (2009) 10 NWLR (PT. 1149) 353 @ 395, PARAS E – F wherein the Supreme Court of Nigeria held that: “to determine whether a testimony has probative value, the Court takes into consideration whether the testimony is cogent, consistent and in accord with reason and in relation to other evidence before it”.

Also, Counsel argued that the only documents before the Court below establishing the relationship of the Appellants and the Respondent were documents evidencing the initial contract. Counsel further contended that there is no iota of real evidence establishing the fact that the payment of N120,000.00 was in advance. Counsel argued that from the evidence available, it is clear that the Appellants had been in the habit of paying salaries in arrears. Counsel drew attention to the fact that the Appellants also did not establish at the Court below that there was a new oral contract pointing that there is no correlation between the Appellants’ positions that there was a new contract based on the evidence before the Court. Counsel urged his Court to so hold.

According to learned Counsel, it is pertinent also to note that DW2 made frantic efforts to deny the contents of Exhibit ‘P6’ as not being a document signed of his will. Counsel therefore argued that there is however, on the basis of the evidence before the Court below, nothing to suggest that DW2 was an illiterate rather that he gave evidence that he is a Pharmacist and by all standards highly educated. It is the argument of Counsel that DW2’s position cannot hold water because the law is settled that any person with full age, capacity and understanding who signs documents, being not an illiterate, is deemed or presumed to understand what he had signed. See OKOYA vs. SANTILLI (1994) 4 SCNJ 333; CHITTY ON CONTRACT, VOLUME 1, GENERAL PRINCIPLES, SWEET & MAXWELL 2004 AT PAGE 416. Counsel humbly urged this Court to hold that the Appellant’s are estopped from denying Exhibit ‘P6’ having signed same.

On the whole, Counsel finally submitted that the judgment of the Court below was not against the weight of the evidence in any way.

RESOLUTION OF APPEAL
The fact of this case is rather straight forward. What is common ground between the parties is that the 1st Defendant, who is now 1st Appellant on the 1st day of May, 2002 employed the Plaintiff who is the Respondent herein as Superintendent Pharmacist. It is also common ground that the Plaintiff/Respondent served the said 1st Defendant/Appellant without any problem and until the end of the year, 2004. Trouble, however, started when the 1st Defendant/Appellant began to owe the Respondent salaries from the month of July, 2005. Despite this position Appellant, did not fail to carry out his duties and responsibilities as Superintendent Pharmacist to the 1st Defendant until the 8th day of June, 2007 when the 2nd Defendant and the DW2 violently threw him out of the office.

The Defendants who are the Appellants in this appeal had a different story to tell. According to the Defendants, the Respondent never worked for the 1st Appellant beyond the month of December, 2004. Rather, by January, 2005 the Respondent had since abandoned his duty post and gone away. Since it is an issue of common ground between the parties that the Respondent had once been the employee of the 1st Appellant, then the issue that the Court below found itself resolving, was whether or not on the basis of the evidence before the Court the Respondent did abandon his duty post as alleged by the Appellants and at what period of time?

To begin with, evidence is in abundance in the records which shows that the Respondent was a salary earning employee of the Appellants. The contract of employment, Exhibit ‘P4’ provided for the Respondent’s salary in 2002 when he started work to be N30,000.00. By Exhibit ‘P6’, the Respondent showed that there was an increase of his salary from N30,000.00 to N40,000.00.

The said Exhibit ‘P6’ was dated the 8th day of August, 2006 signed by the Respondent himself and also counter-signed by the 2nd Appellant who signed on behalf of the 1st Appellant. The same 2nd Appellant signed Exhibit ‘D8’ and under cross-examination of PW1, he agreed that the 2nd Appellant signed Exhibit ‘D8’. It is also in evidence that PW1 agreed under cross-examination that Exhibit ‘D8’ was made in favour of Pharmaceutical Society of Nigeria. See page 160 of the Records.

The printed records also show that Exhibits ‘P6’ and ‘D8’ were signed by the 2nd Appellant on behalf of the 1st Appellant. The effect of the 2nd Appellant counter signing Exhibit ‘P6’ and signing Exhibit ‘D8’ leaves no one in doubt that a reasonable person would take him to be an officer of the 1st Appellant. Counsel referred this Court to SECTION 169 OF THE EVIDENCE ACT, 2011 and the case of OLALEKAN vs. WEMA BANK PLC (2006) 13 NWLR (PT. 998) 617 @ 625 – 626, PARAS. H – G wherein the Supreme Court of Nigeria held that: “If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was the true representation of facts and the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying the fact as represented”. Counsel urged this Court to hold that by signing Exhibits ‘P6’ and ‘D8’, th2ne d Appellant had made the Respondent believe that he the 2nd Appellant had the authority to sign the said documents on behalf of the 1st Appellant and that he the 2nd Appellant had been acting as an officer of the 1st Appellant.

The trite position of the law is that documentary evidence being permanent in form is more reliable than oral evidence and it is for this reason, used as a hanger to test the credibility of oral evidence. See the case of AGBAREH vs. MIMRAH (2008) LPELR-43211 SC, where the Apex Court per OGBUAGU, JSC had this to say on the subject:
“Documentary evidence in this matter is crucial. There is therefore, in fact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the contents of a document or documents. This is because of the settled law firstly, that prima facie, oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document, is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92 (1958) SCNJ 280 and S.C.O.A. (Nig.) Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt.138) 380 at 389 and many others. Secondly, documentary evidence it is settled, is the best evidence. See the case of The Attorney-General, Bendel State & 2 Ors v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565.”
See also the case of BUNGE vs. GOVERNOR RIVERS STATE (Supra) cited by Respondent’s Counsel wherein the Court held that: “In the interpretation of document, oral or parole evidence will not be admissible, among other things, to contradict or alter it where the document is clear and unambiguous”. See also the cases of C.D.C. (NIG) LIMITED vs. SCOA (NIGERIA) LIMITED (2007) 6 NWLR (PT. 1030) 300 @ 366, PARAS. G- H, FAYEMI vs. ONI (2009) 7 NWLR (PT. 1140) 223 AT 291, PARAS. C. Arising therefore from the foregoing, this Court cannot help but give Exhibit ‘P6’ its ordinary and plain meaning in the context that the said Exhibit ‘P6’ has established that the Respondent had received his monthly salaries up to March, 2005 establishing the fact that he was still in the employment of the 1st Appellant as of the time Exhibit ‘P6’ was written.

It would be recalled that the Appellants gave evidence that the Respondent was not in any way being owed by the Appellants and that the only negotiation the 1st Appellant had with the Respondent was all together a new contract concerning the Respondent’s registering and licensing the 1st Appellant for business in the year 2007. See paragraphs 22 and 23 of the DW1’s deposition at page 41 of the Records. It would also be further recalled that it was also the Appellants’ case that the Respondent unceremoniously terminated his employment with the 1st Appellant but was later contracted as an independent Pharmacist to register the 1st Appellant for the year 2007 which, registration he never carried out after collecting the initial down payment of N120,000.00. See paragraph 6 of the 2nd Appellant’s further written statement on oath at page 100 of the Records.

Against the backdrop of the foregoing, it may perhaps, be apropos to take a closer look at Exhibit ‘D10’ at page 110 of the Records tendered by the Appellants in an attempt to show that the Respondent ceased to work in 2004 or that salary payments are not countersigned. The said Exhibit ‘D10’ was procured from the Respondent after he (Respondent) had written Exhibit ‘P7’ (letter from the Respondent’s solicitors) to the Appellants warning them of consequences of further withholding the Respondent’s arrears of salaries. A much more closer look at the said Exhibit ‘P7’ will also show that it is dated 21st March, 2007 at page 20 of the Records, while Exhibit ‘D10’ is dated 23th March, 2007 at page 110 of the Records.

It is obvious that the said Exhibit ‘D10’ was clear as to the position of the Respondent as at 23th March, 2007 showing to the advantage of the Respondent that up to the last time he received N30,000.00 as salary. In short, both Exhibits ‘D10’ and ‘P6’ truly brings out the correct position of the Respondent as per the state of his salaries shortly before he was thrown out of the place and further ground the Respondent’s evidence that his salaries were always paid months after they were due and in piece-meal. It is also clear from the evidence adduced that the Appellants did not establish at the Court below that there was a new oral contract between the parties. In short, there is no correlation between the Appellants’ positions that there was a new contract based on the evidence before the Court.

It is important to debunk at this stage the contention of the DW2, who made frantic efforts to deny the contents of Exhibit ‘P6’ as not being a document signed of his free will. Here was a situation in which the said DW2 had introduced himself as a Pharmacist and therefore highly educated and therefore nothing to suggest that he was an illiterate. It is the argument of Respondent’s Counsel and which this Court readily agrees with, that DW2’s position cannot hold water because the law is settled that any person with full age, capacity and understanding who signs documents, being not an illiterate, is deemed or presumed to understand what he had signed. See OKOYA vs. SANTILLI (Supra); CHITTY ON CONTRACT, (Supra). Consequently, this Court hereby finds and do hold that the Appellants are estopped from denying Exhibit ‘P6’ having signed same.

On the question of the Respondent’s admission during cross-examination and upon which the Appellants made a heavy weather of to the effect that his practice license which enabled him to register the 1st Appellant had expired for business in the year 2004, with reference to the 1st Appellant’s statement of Defence and its reply to statement of defence to counter-claim, it is instructive to note that the Appellants in all their pleadings before the Court below, did not at any time plead that the Respondent was not qualified to practice his profession. It is for this reason that this Court shall be in agreement with the Respondent that evidence elicited during cross-examination, but not pleaded goes to no issue.
It is a different kettle of fish altogether and the settled law for that matter where evidence elicited from the cross-examination of a defence witness and which is in line with the facts pleaded by the Plaintiff. In that case, it would form part of the evidence produced by the Plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties. But, not when it is in respect of issues not joined between the parties. See ADEOSUN vs. GOV. OF EKITI STATE (2021) LPELR- 7843 SC; See also the case of NSIRIM vs. ONUMA CONSTRUCTION NIGERIA LTD (Supra) and NWANKWO vs. OFOMATA (Supra) cited by learned Counsel to the Respondent.

Here was a situation in which the issue of un-qualification was being introduced for the first time in the Appellant’s written address at the Court below. The pertinent question to be addressed here is whether the address of Counsel will now in the circumstance of this case be allowed to take the place of evidence? The question can only be rendered in the negative. See UBN PLC & ANOR vs. AYODARE & SONS (NIG) LTD (2007) LPELR-3391 SC, where the apex Court per ONNOGHEN, JSC had this to say on the subject:
“It is also settled law that address of counsel however brilliant, cannot take the place of evidence particularly where there is no evidence, as in the instant case, in support of the submission(s).” (Dissenting)
See the case of A.N.P.P. vs. USMAN (Supra).

On the question for which reason the Respondent had tendered Exhibit ‘P5’, learned Respondent’s Counsel had submitted that same was tendered by the Respondent in proof of payment of annual fees of year 2004 and nothing more and has nothing whatsoever to do with the Appellants’ construction who had sought to base the inability of the Respondent to practice as a Pharmacist on the existence of Exhibit ‘P5’. The settled position of the law is that a document tendered shall not be taken for another purpose other than the purpose for which it was tendered. See the decision of this Court in ONOBA vs. ABUJA BUILDING PRODUCTS LTD & ANOR (2014) LPELR -22704 CA, in which TUR, JCA had this to say on the subject:
“The Power of Attorney was tendered in the lower Court to prove the three main purposes it was pleaded. In Ishola vs. UBN Ltd. (2005) All FWLR (Pt.256) 1202 Kalgo, J.S.C held at page 1213 paragraphs “F”-“H” that: “It is trite law that a Court should not and cannot make a case for the parties different from what they set out in their pleading. See Adebanjo vs. Brown (1990) 3 NWLR (Pt.141) 661 at 675. The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose intended by the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it. This, in my view is the only legitimate use of the document admitted in evidence in Court.”
(Underlined, mine for emphasis)

Arising from the foregoing, this Court is of the clear view that on a preponderance of evidence, the Respondent as Plaintiff proved his case against the Appellants. A careful perusal of the evidence of the witnesses and the documentary evidence admitted by the Court below and the Court’s judgment does not show anything that the judgment of the Court below was perverse or that it was arrived at based on wrong principles of law. Against the backdrop of the foregoing, this appeal fails and it is accordingly dismissed. Consequently, the judgment of the Court below, delivered on the 17th day of September, 2008 is hereby affirmed. There shall be cost of N200,000.00 against the Appellants and in favour of the Respondent.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, F. O. OHO, JCA.

He dealt decisively with the issues raised in the appeal and I adopt his reasoning and conclusion, which represent my views.

Thus, I also dismiss this appeal and endorse the order as to costs made by OHO, JCA in the lead judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the advantage of a preview of the judgment of my learned brother, FREDERICK OZIAKPONO OHO, JCA just delivered. I agree with his Lordship’s reasoning and conclusion that this appeal is unmeritorious. I hereby dismiss it. I abide by the order for costs made therein.

Appearances:

C. L. OKEMILI, ESQ. For Appellant(s)

C. H. ONYIUKE, ESQ. For Respondent(s)