S. Pascutto V. Adecentro Nigeria Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C. 

By a writ of summons issued on the 7th day of August, 1985 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiff instituted an action against the defendant claiming as follows:

“The plaintiffs claim is for N612,563.70k equivalent of US $294,762.00 and interest thereon for 5’bd years, being the balance of the total sum of money which the defendant agreed to pay to the plaintiff pursuant to a good accord and satisfaction made in writing between the plaintiff and the defendant dated 3rd August 1979. The defendant has refused to pay this balance despite repeated demands.

Particulars

1. Total sum owing to the plaintiff – N448,304.38k (US $542,000).
2. Total sum paid to the plaintiff on 15/10/79 – US $247,238.00.
3. Outstanding balance – N243,806.45 (US $294,762.00)
4. Interest on outstanding balance from 3/10/79 ’97 3/5/85 at 27.5’bd % per annum N368,757.25”.

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and tendered some exhibits.

Essentially, the plaintiffs case against the defendant is for the sum of N612,563.70, then equivalent to US$294,762.00 and interest thereon for 5’bd years being balance of the total amount owed by the defendant to the plaintiff in respect of building materials supplied and services rendered to the defendant by the said plaintiff as evidenced by an accord and satisfaction, Exhibit A. ex facie shows that a dispute having arisen between the plaintiff and the defendant in 1979 as to the amount due and payable by the defendant to plaintiff in respect of the said materials and services supplied by the plaintiff to the defendant, both parties reached an agreement in the sum of US $542,000.00 being the precise balance payable by the said defendant to the plaintiff.

The defence was a total denial of the plaintiffs claim. It denied that the plaintiff supplied the defendant with any materials or services as alleged or at all. It asserted that the defendant at all material times dealt with the company, Expo Film SRL which company supplied building materials and services to the defendant. It claimed that these were fully paid for by the defendant. It denied the existence of Exhibit A but added that even if it existed, it was it consequence of the letter Exhibit H which was cancelled by another letter, Exhibit O.

At the conclusion of hearing, the learned trial Judge, Adekola, J. after a review of the evidence on the 29th September, 1986 dismissed the plaintiff s action in its entirety. He held, in the main, that the document, Exhibit A came into existence after a third party, Expo Film SRL, had by Exhibit H, appointed the plaintiff as their agent to collect the amount due to them from the defendant for materials supplied and other services rendered, that the relationship between the plaintiff and the defendant was that of an agent and a third party and that even the said Exhibit H was subsequently terminated by Exhibit O.

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Ibadan Division, which court on the 13th day of April, 1989, in a split decision in which Omololu – Thomas, J.C.A. dissented, dismissed the appeal but struck out the plaintiffs action. It confirmed the trial court’s finding that the plaintiff being at all material times a mere agent whose agency had been duly terminated had no locus standi to institute the action.

Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendant in this judgment as the appellant and the respondent respectively.

Pursuant to the Rules of this Court, the parties, through their respective counsel, filed and exchanged their written briefs of argument. In the appellant’s brief, the following two issues are identified as arising for determination in this appeal, namely:-

“1. Whether the lower court’s affirmation of the trial court’s conclusion or finding that the plaintiff entered into Exhibit A as an agent was justified having regard to the pleading and evidence of the parties before the court.

2. Whether the lower court was right in affirming the facts of the case as found by the trial court and concurring in its judgment, having regard to the trial court’s approach to, and evaluation of the evidence and pleading of the parties before it.”

The respondent, for its own part, also submitted two issues in its brief of argument as arising for the determination of this court. These are:-

“1. Whether Exhibit H was properly received in evidence and acted upon by the lower courts.

2. Whether the plaintiff executed Exhibit ‘A’ as agent of a third party.”

I have closely examined the two sets of issues identified in the respective briefs of the parties and it is clear to me that the two issues raised in the respondent’s brief are adequately covered by those set out in the appellant’s brief which I consider sufficiently comprehensive for the determination of this appeal. I shall therefore adopt in this judgment the set of issues formulated in the appellant’s brief for my determination of this appeal.

At the oral hearing of the appeal, both learned counsel for the parties adopted their respective briefs of argument and proffered additional submissions in amplification thereof.

The main contention of learned appellant’s counsel, Dr A.N. Onejeme centered on the issue of whether the appellant executed Exhibit A by virtue of Exhibit H and as agent of a third party, Expo – Film SRL, or whether it was executed by the appellant personally on his own behalf and as agent of no one. He submitted that it is obvious on the face of Exhibit A that the appellant did not execute the document as an agent of anyone. He argued at all events, that the respondent no where in his Statement of Defence pleaded agency as a defence to the appellant’s action. He referred to paragraph 7 of the Statement of Defence and submitted that the same is evasive and misleading. Referring to the decisions in Sobell Industries Ltd v. Cory Brothers and Co. Ltd (1955) Lloyd’ s Law Reports Vol 2 at 82 and Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630, learned counsel submitted that where a person executed a contract in his own name and without qualification, he shall be taken to be contracting personally unless there are words used in the contract which suggest otherwise. He contended that nothing in Exhibit A suggests otherwise than that the appellant signed it personally and as a principal. He stressed that the parties cannot go outside the accord and satisfaction, Exhibit A, by which they agreed on a number of facts which cannot now be in issue. He pointed out that the appellant’s case was based entirely on Exhibit A. He also stressed that there is nothing in the said Exhibit A to suggest that it was signed by way of agency. He urged the court to allow this appeal and enter judgment for the appellant as claimed.

Learned counsel for the respondent, Mr. B.A. Aiku, S.A.N. in his reply submitted that Exhibit H which constituted the appellant an agent of the third party and Exhibit O which terminated the agency were duly pleaded. He argued that once Exhibit H which constituted the appellant an agent was duly pleaded, the contention of the appellant that agency was not part of the respondent’s case must be regarded as misconceived. He submitted that although the appellant gave evidence that he supplied goods to the respondent, the latter on the other hand tendered oral and documentary evidence that the goods were not supplied by the appellant but by Expo Film SRL. This defence case was accepted by both courts below and being concurrent findings of facts may not now be interfered with by this court unless special circumstances are established. He submitted that the two courts below did not err in their evaluation of the evidence adduced by the parties and he therefore urged the court to dismiss this appeal.

The first issue for determination is whether the affirmation by court below of the trial court’s finding to the effect that the appellant entered into Exhibit A as an agent was justified, having regard to the pleadings and evidence of the parties before the court. In this regard, it seems to me necessary for a better appreciation of the issue to set out the material paragraphs of the appellant’s Statement of Claim which averred as follows:-

“3. A dispute having arisen between the plaintiff and the defendant in 1979 regarding the amount due and payable to the plaintiff in respect of materials and services supplied by the plaintiff to the defendant, the plaintiff and the defendant reached a good accord and satisfaction in writing dated 3rd August, 1979 by which they resolved the dispute.

4. Under clause I of the said agreement, the defendant promised and agreed to pay to the plaintiff the sum of US $542,000.00 (N448,304.38k) and the plaintiff agreed to accept the same in final settlement and payment for the said goods and services.
5. Under clause 2 of the said agreement the defendant was to pay the above sum in unspecified installments, the first within two weeks of the availability of the documents permitting remittance of the amount to the plaintiff, the second and the third within 6 weeks after the first instalment.
6. Under clause 4 of the said agreement, the defendant was to be discharged from all further liabilities and claims in respect of the goods and services supplied by the plaintiff on payment of the agreed amount.
7. By a separate written authority dated 3rd August, 1979 and signed by the plaintiff, the plaintiff instructed the defendant to pay all the stated instalments to the plaintiff through a designated Account No. 541235 ref. Expofilm, c/o Societe de Benques Sussie, Chiaso, Switzerland.
8. In accordance with the said authority and instruction, the defendant, on or about 15th October, 1979 remitted the first instalment of $247,238.00 to the plaintiff, thus leaving a balance of US $294,762.00.
9. The defendant has refused or neglected to pay this balance or any part of it despite repeated demands”.

It suffices to state that the respondent while specifically denying the said paragraphs 3, 4, 6, 7 and 8 averred in paragraph 3 of its amended Statement of Defence that the appellant did not at any time supply the respondent with any building materials and/or services as alleged or at all. It went on –

“4. The defendant at all material times had direct dealings with Expo Film S.R.L which company supplied materials and services to the defendant and not the plaintiffs herein.

4(a) The defendant at all material times had no agreement with the plaintiff for the supply of building materials and services to the defendant All orders were with Expo Film S.R.L.

4(b) Expo Film S.R.L. invoices were used for the clearing of all goods ordered and processing payments in respect thereof through the Nigerian Banks. The defendant pleads all relevant invoices and shipping documents.

5. The said Expo Film S.R.L. gave written directives as to when and how payments should be made.
6. The defendant settled all monetary transactions with Expo Film S.R.L. by an agreement dated 22nd May, 1980.
7. If there was any agreement to pay any sum of money to the plaintiff, which is denied, such was in consequence of a directive contained in a letter dated 12th March, 1979 which was cancelled by another letter dated 2nd June, 1980 both addressed to the defendant by Expo Film S.R.L.”

The learned trial Judge after a review of the evidence adduced by the parties was in no doubt, and quite rightly so, that the appellant’s action against the respondent was based entirely on Exhibit A. Said he:-

“The present action brought against the defendant by the plaintiff was based on exhibit A. The next point to be considered is whether the plaintiff is entitled to sum of 294,762 dollars inclusive of interest due for 5 ‘bd years from the defendant.

My answer to this will be in the negative.”

He advanced his reasons for disallowing the appellant’s claims. These, in the main, are that the appellant executed Exhibit A as agent of Expo SRL, that Exhibit H appointed the appellant such agent and that, at all events, Exhibit O revoked the said appointment of the appellant.

The court below per the majority decision of Kutigi, J.C.A. as he then was, with which Akanbi, J.C.A., as he then was, concurred, in affirming the said findings of the trial court stated as follows:-

“I think there is ample evidence before the court to support the above findings of facts and conclusion arrived at by the learned trial Judge.”

The court went on:-

“It follows therefore that the appellant would not have been in any position to institution this action against the respondent company in 1985 once the authority given to him by EXPO FILM SRL by virtue of Exhibit H had been revoked in 1980 by Exhibit O. Clearly the appellant had no locus standi nor capacity to sue as his authority to collect payment had been revoked by the foreign firm EXPO FILM SRL.”

It then concluded:-

“The appeal therefore fails and it is hereby dismissed. But since the finding of the learned trial Judge was that the appellant had neither the capacity nor locus standi to sue, the proper order which he ought to have made was that striking out the case only and not dismissing it in its entirety as he had done. An order striking out the case is therefore hereby ordered and entered in place of the one of dismissal. And this shall be the order of the High Court”.

The sole question for resolution under issue 1 is whether having regard to the pleadings and evidence before the court, both courts below were justified in their conclusion that the appellant executed Exhibit A as an agent of a third party by virtue of Exhibit H. It seems to me convenient at this stage to consider the pleadings filed by the parties in the suit.

In this regard, it is an elementary and fundamental principle of law that, parties are bound by their pleadings and that evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court See Emegokwue v. Okadigbo (1973) 4 S.C.113; Ekpenyong and others v. Chief Ayi (1973) 3 E.C.S. L.R. 411. So too evidence in respect of material facts which are not pleaded goes to no issue at the trial and should be disregarded by the court. Even when such evidence has been wrongly admitted, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings as it is not open to a party to depart from his pleadings and put up an entirely new case at the hearing. See too Odumosu v. A.C.B. (1976) 11 S.C. 261 at 264 Kalu Njoku and others v. Ukwu Eme and other (1973) 5 SC. 293, National Investment and Properties Co. Ltd v. Thompson Organisation Ltd and others (1969) NMLR 99 at 104 etc.

The rationale behind his rigid rule of pleadings and evidence has been clearly stated and restated times without number by this court. In George and others v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 77, this court explained the principle as follows:-

“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy.

The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise”.

Accordingly, evidence must be directed and confined to the proof or disproof of the issues as settled by the pleadings. It is not open to a party to rely on material facts which he should have but had not pleaded at the trial because the opposing side would have, owing to their absence from their pleadings, lost the opportunity of calling evidence to controvert them.See Esso Petroleum Co. Ltd v. Southport Corporation (1956) AC 218; J.O. Idahosa and another v. D.N. Oronsaye (1959) 4 FSC 166; (1959) SCNLR 407; Alhaji Ogunlowo v. Prince Ogundare (1993) 7

NWLR (Pt.307) 610 at 624; Metalimpex v. A.G. Leventis and Co. Ltd (1976) 2 S.C. 91 etc. The crucial question now must be whether the respondent pleaded in its amended Statement of Defence that the appellant executed Exhibit A as an agent of any third party.

A close examination of the respondent’s amended Statement of Defence makes it crystal clear that no where therein was agency or facts in establishment of agency pleaded as a defence to the appellant’s claims. The respondent’s case, as pleaded and as testified to before the trial court, was as follows:-

(i) That the appellant at no time entered into any contract with the respondent in 1978 or at any other time for the supply of building materials or services to the respondent.

(ii) That the appellant did not supply any building materials to the respondent in 1978 or 1979 as alleged by the appellant or at all.

(iii) That the respondent at all material times received supplies of building materials and services from EXPO FILM SRL.

(iv) That all goods supplied by the said EXPO FILM SRL to the respondent were fully paid for by the respondent

(v) That all payments in respect of the goods supplied were made by the respondent to EXPO FILM SRL.

(vi) That if there was any agreement to pay any sum of money to the appellant, which is denied, such was in consequence of Exhibit which was revoked by Exhibit O.

There was no suggestion by the respondent in its pleadings, no matter how remotely, of the defence of agency, that is to say, that the appellant executed Exhibit A as an agent of a third party and could not therefore maintain his action.

It cannot be over-emphasised that some of the more important objects or functions of pleadings are:-

1. To define with clarity and precision the issues or questions which are in dispute between the parties for the determination of the court
2. To require each party to give fair and proper notice to his opponent of the case he has to meet to enable him to frame and prepare his own case for trial.
3. To project to the court the precise matters in issue between the parties which alone the court may determine, since they set the limits of the action which may not be extended without due amendment.

The respondent in the present case, if it intended to rely on agency as a defence, ought to have specifically so averred or, alternatively, plead material facts which clearly set out such a defence. This it failed to do. In my view, paragraph 7 of the respondent’s amended Statement of Defence relied upon by the respondent neither pleaded agency specifically nor did it raise any issue of agency as a defence to the appellant’s suit.

Turning now to the capacity in which the appellant executed Exhibit A, it will be necessary to set out the document for ease of reference. It goes thus:

TERMS OF SETTLEMENT

1. WHEREAS there is a dispute between Messrs, COM-EST (G.S. PASCUTTO of via A CAPANINI 4 – 20124 MILANO ITALY of the one hand AND MESSRS ADECENTRO (NIGERIA) LTD of Samonda, Oyo Road, P.M.B 5549, Ibadan, Oyo State of the other hand as to the amount due and payable under two contracts,

(1) the contract on the supply of building materials and

(2) the contract under which COM-EST provided the services of expatriate plumbers.

2. WHEREAS both parties are anxious and willing to settle the dispute peaceably and amicably.

NOW IT IS HEREBY mutually agreed:-

1. That MESSRS. ADECENTRO NIGERIA LTD shall pay the sum of $542,000 (Five Hundred and Forty-two Thousand Dollars) (hereafter called the agreed sum) to Messrs (COM-EST) who shall accept same in final payment for the said supply of building materials and for the services of the expatriate plumbers provided by Messrs COM-EST.
2. That ADECENTRO (NIGERIA) LTD. shall remit the amount stated above in three instalments, the first within two weeks of the availability of the documents permitting remittance, the second and the third within six weeks after the first payment
3. The remittance shall be made by Messrs. ADECENTRO (NIGERIA) LTD. to a banker nominated in writing by a separate written instruction of Messrs COM-EST.
4. On the remittance of the agreed sum by Messrs ADECENTRO (NIGERIA) LTD, it shall be discharged from all liabilities and claims in respect of same.
5. Messrs ADECENTRO (NIGERIA) LTD. shall deduct and indemnify itself for any money or monies which it pays on the commencement of THIS AGREEMENT on the written instruction of Messrs COM-EST.

As witness the hands of the parties this day of 3 August 1979.

(SGD) (CHIEF A.O. ADEGOKE) ,

for and on behalf of Messrs.

ADECENTRO (NIGERIA) LTD.

(SGD) (G.S. PASCUTIO,

for and on behalf of Messrs.

COM-EST

(G.S.PASCUTIO)

In the presence of

(Sgd.) (NICOLA MARFE)

AND

(SGD(ENZO CAGLLABDI).

Before me

(SGD.) (CHIEF AFE BABALOLA).

(SOLIOTORS).”

There can be no doubt that the parties to Exhibit A are the appellant and the respondent herein and that neither of them exfacie purported to have executed the contract as agent of a third party. Indeed learned counsel for the respondent in his address before the trial court did concede that:-

“the plaintiff entered into Exhibit A in his own personal capacity, not as an agent”

It is clear that the content and form of execution of Exhibit A by the appellant were without qualification. They indicated in very clear terms that the document was entered into and was executed by the appellant on his personal behalf and not as an agent of any third party. In my view, to hold that the appellant who appears on the face of Exhibit A to be personally a contracting party, is not now such, would be to contradict the written agreement without any justification whatever.

In the same vein, where a person executes a contract in his own name and without qualification, he shall be taken to be contracting personally unless there are words used in the contract which suggest otherwise. See Alli v Ikusebiala (19S5) 1 NWLR (Pt.4) 630. In the present case, the appellant executed Exhibit A in his own name and without qualification. There are no words therein used which suggest otherwise than that he signed the instrument as a principal. I entertain no doubt that the appellant executed Exhibit A personally on his own behalf and not as an agent of any third party.

The trial court in holding that the appellant executed Exhibit A as an agent reasoned thus:-

“…that the documents Exhibits A and B, came into existence after EXPO Film SRL had, by exhibit H, appointed the plaintiff as their agent to collected the amount due to them from the defendant for materials supplied and other services rendered.”

The Court of Appeal for its own part in affirming the above finding of the trial court observed thus:

“I have already stated above that the findings of the learned trial Judge that Exhibits A and B came into existence only after EXPO FILM SRL had by Exhibit H appointed the appellant as their agent to collect the amount due to them from the respondent was valid and proper.”

With the greatest respect to both courts below, Exhibit H is a mere letter written by a third party, EXPO Film SRL, to the respondent notifying the said respondent that payment in respect of certain listed Bills of Lading should be made according to instructions the said respondent would receive from the agent of the third party, Messrs Comest of G.S. Pascutto. The said letter reads thus:-

“Messrs. Adecentro Nigeria Limited, 12th March, 1979

Private Mail Bag 5549,

Ibadan, Nigeria.

Dear Sir,

We wish to notify you that relative to the underlisted Bills of Lading, payment should be carried out according to. Instructions that you will receive from our Agent, Messrs COMEST of G.S. Pascutto.

There are:-

Traghatto Espresso Sardegna B/L No.1002 del. 10/11/78

Traghatto Espresso Sardegna B/L No.1003 del. 10/11/78

Traghatto Espresso Sardegna B/L No.3022 del. 10/11/78

Traghatto Espresso Sardegna B/L No.3024 del. 10/11/78

Traghatto Espresso Saililia B/L No.3011 del. 30/11/78

Traghatto Espresso Saililia B/L No.1004 del. 6/12/78

Traghatto Espresso Saililia B/L No.1012 del. 30/11/78

This notice will remain in force until duly rescinded and notice hereof in writing be given to you by the Managing Director of this Company.

We shall appreciate confirmation of receipt of this letter.

We remain.

Yours faithfully,

EXPO FILM s.r.1

(Sgd.) Frnncesco Di Geronimo

MANAGING DIRECTOR ..”

It is plain to me that Exhibit H ex facie cannot by any stretch of the imagination be said to have created any agency or appointed the appellant an agent for the collection of the amount in issue as erroneously conjectured by the two courts below. Exhibit H only concerned certain Bills of Lading listed in the letter and it was neither pleaded nor was it established that the relevant Bills of Lading were in any way connected with the appellant’s claim as evidenced in Exhibit A. Put differently, the letter Exhibit H, only talked about payment relevant to the Bills of Lading therein listed and no more. I agree entirely with the dissenting judgment of Omololu Thomas, J .C.A. in the court below to the effect that in the absence of any averment in the respondent’s amended Statement of Defence connecting the amount claimed per Exhibit A with the sum due under the Bills of Lading listed in Exhibit H, nothing significant may be read into the said Exhibit H particularly as there was no evidence that the appellant was a party or privy thereto.

I think it ought to be pointed out additionally that the appellant was never cross-examined on either Exhibit H or O and neither of the two documents shows that the appellant was aware of their existence or contents. Not even the makers of the two exhibits testified before the trial court to identify the claims they related to. In my view, both courts below were, with respect, in definite error by holding that by Exhibit H, the appellant was appointed or became the agent of the third party, EXPO FILM SRL for the collection of money due to it from the respondent Agency is not created or established simply because a third party writes a private letter to one of the parties to a suit referring to the other party in that suit as his agent Apart from the constitution of agency by operation of law under the doctrine of agency of necessity and agency by estoppel, the relationship of principal and agent may and is often constituted by agreement There is no evidence before the court that any such agreement between the appellant and Expo Film SRL existed in this case. It is clear to me that both courts below are, with respect, in error to have distilled agency from Exhibit H in all the circumstances of the case. The appellant not having been appointed agent by Exhibit H, Exhibit O which purports to revoke the alleged agency must be treated as irrelevant and of no consequence. It is also clear to me that the finding of the trial court to the effect that Exhibit A came into existence as a result of Exhibit H is unsupported by any averment in the pleadings or any evidence before the court and must be regarded as perverse and erroneous in point of law.

Finally, on this issue of agency, I have already observed that the same was not specifically or expressly pleaded. I have also stated that the appellant was not cross-examined in any manner by the respondent with regard to Exhibit H which was stated to have constituted the agency or Exhibit O which purported to cancel Exhibit H.

More significantly is the fact that although the appellant gave copious and lucid evidence on how he supplied the building materials in issue to the respondent, how the respondent made part payment of the amount of money involved to him, how he entered into Exhibit A with the respondent with regard to the liquidation of the outstanding balance, the said appellant was again not cross-examined on any of the issues by the respondent That the appellant acted at all material times as agent of a third party was at no time suggested to him all through the prosecution of his case. Agency was thus not put in issue by the parties at the trial of the suit. It emerged for the first time in the course of the final address of the respondent’s learned counsel before the trial court. It is clear that the judgment of the learned trial Judge which was affirmed by the court below was based entirely on agency, a material fact which was neither pleaded nor testified upon by either of the parties.

Such a judgment, with respect, cannot in law be allowed to stand See Ochonma v. Unosi (1965) NMLR 321, Florence Olusanya v. Olufemi Olusanya (1983) 1 SCNLR 134; (1983) 3 SC 41 at 56-57 etc. This is simply because parties, as I have already stated, are bound by their pleadings and judgment must also be confined to the issues raised by the parties. It is incompetent for a court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. See Commissioner for Works, Benue State and Another v. Devcon Development Consultants Society Ltd (1988) 3 NWLR (Pt.83) 407; Nigerian Housing &Development Society Ltd another v. Yaya Mumuni (1977) 2 SC 57, Adeniji and others v. Adeniji and Other (1972) 1 All NLR (Pt.1) 275 etc. In the circumstances issue 1 is hereby resolved in favour of the appellant

Issue 2 questions whether the court below was right in affirming the facts of the case as found by the trial court, having regard to the pleadings and evidence of the parties. The arguments on this issue have to a large extent been covered in my treatment of issue I above. It suffices to state that the main facts found by the trial court and affirmed by the court below and upon which the appellant’s claim was struck out revolved entirely on the purported appointment of the appellant by Exhibit H as agent of the third party, Expo Film S.R.L. in the collection of the sum of money in issue in this case. Without doubt, this court will not interfere with the concurrent findings of fact made by both the trial court and the Court of Appeal where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record of proceedings, such as some miscarriage of justice or a violation of some principle of law or procedure. Where, however, such findings are shown to be perverse or patently erroneous and that a miscarriage of justice will thus result if they are allowed to remain, as in the present case, this court will not hesitate to intervene and to set such findings aside. See Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 75; Lamai v. Orbih (1980) 5 – 7 S.C.28; Woluchem v. Gudi (1981) 5 S.C. 291 at 326; Ibrahim v. Shagari (1983) 2 S.C.N.L.R. 176; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 585 etc.

In the present case, it is plain that the trial court did not properly evaluate the evidence before it, that it made a wrong approach to the evidence, having regard to the issues raised in the pleadings and that there is established a miscarriage of justice and a violation of some principles of law and procedure as above indicated. In these circumstances, I entertain no doubt that the court below, with respect, was in gross error in affirming the said findings of the trial court as a result of which it dismissed the appeal before it Issue 2 is accordingly answered in the negative.

The appellant in his Notice of Appeal urged the reversal of the decision of the court below and the entry of judgment in his favour in terms of his claims. And I ask myself whether this is an appropriate case in which this court may accede to this relief sought by the appellant In this regard the material averments pleaded in the appellant’s Statement of Claim have been reproduced earlier on in this judgment Evidence in respect thereof was also fully adduced before the trial court.

The simple facts of the appellant’s case are that the appellant, an Italian National, at all material times carried on his business under the name and style of COM-EST (G.S Pascutto). Between November and December, 1978 he supplied building materials and provided the services of expatriate plumbers to the respondent The respondent made part payment to the appellant of the cost of these supplies made to it by the appellant. In 1979 a dispute arose between the appellant and the respondent with regard to the outstanding balance payable to the appellant by the respondent in respect of the said supplies. By a duly executed written agreement Exhibit A dated the 3rd day of August, 1979, both parties arrived at and agreed on the sum of US $542,000.00 as the actual balance then payable by the respondent to the appellant in respect of the said supplies. Pursuant to the said Exhibit A, the respondent duly paid the sum of US $247,238.00 to the appellant. This thus left an outstanding balance of US $294,762.00 said to be equivalent at all material times to the sum of N243,806.45 still due and payable by the respondent to the appellant in respect of the supplies. The respondent had failed and or neglected to pay this balance to the appellant despite repeated demands hence this action.

It is of importance to observe that the appellant was not cross-examined by the respondent’s learned counsel in respect of any of the above vital facts pleaded and testified upon by the appellant. The one and only question put to the appellant in his cross-examination was as to the name of his company to which he answered thus-

“The name of my company is COM-EST (Digs- Pascutto).”

It is trite law that where evidence given by a party to any proceedings was not challenged by the other party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it See Isaac Omoregbe v. Daniel Lawani (1980) 3-4 S.C. 108 at 117; Odulaja v. Haddad (1973) 11 S.C. 357; Nigerian Maritime Services Lid. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81; Adet Boshali v. Allied Commercial Exporters Ltd (1961) 1 All NLR 917; (1961) 2 SCNLR 322 etc. It therefore seems to me clear that in the face of the unchallenged evidence of the appellant, the learned trial Judge would appear to have had no option than to enter judgment for the appellant as claimed. The court below, with respect, was also in error by striking out the appellant’s claims when the question of agency upon which it founded its judgment was neither pleaded nor testified upon and when the appellant was not cross-examined in respect of all the material facts in support of his claim.

In the final result this appeal succeeds and it is hereby allowed. The judgment and orders of both courts below are hereby set aside and, in substitution thereof, judgment is hereby entered for the appellant in the sum of N243,806.45 being the balance of the total sum of money which the respondent agreed to pay to the appellant pursuant to the accord and satisfaction, Exhibit A.

The appellant’s claim in respect of N368,757.25 interest on the outstanding balance was not established. Exhibit A upon which the appellant’s action is founded made no provision for the payment of interest to the appellant by the respondent. Although the appellant in his evidence claimed interest on the said balance, the details thereof and the period covered were also not adduced in evidence before the court. Consequently, this arm of the appellant’s claim is hereby dismissed.

There will be costs to the appellant against the respondent in the sum of N10,000.00 in this court, N250.00 in the court below and N250.00 in the trial court. The costs of N250.00 against the appellant in both the court below and the trial court respectively in favour of the respondent, if already paid, shall forthwith be refunded.

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SC.128/1991