U. T. C. Nigeria Plc V. Alhaji Abdul Wahab Lawal (2013)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division herein referred to as court below. The plaintiff now respondent took out a writ of summons against the defendant, the Appellant herein. The writ says:-
The plaintiff’s claim in the amended writ of summons dated the 18th July 1988 is for the sum of (Four Hundred and Thirty Seven Thousand, Eight Hundred and Thirty Two Naira, Seven kobo) N437, 832.07k being the outstanding defaults of instalments due from the defendant to the plaintiffs under ten separate agreements whereby the plaintiffs let on hire with option to purchase the said subject – matter at a total purchase price of N716, 175.39. In a nutshell, the defendant willfully and persistently failed, refused and/or neglected to liquidate the sum due and owing despite repeated demands by the plaintiffs. The plaintiffs then claim the outstanding balance of N437, 832.07 together with interest at the rate of 15% from 31st July, 1993 being the last date of default until judgment and thereafter at the rate of 6% until the outstanding debt and costs are fully paid. The plaintiffs further seek an order for leave of this (Court of Appeal) court to sell the seized vehicles.
Pleadings were filed and exchanged and the case set down for trial. Further amended writ of summons and statement of claim were filed. While the amended statement of defence and counter-claim dated and filed on 27/9/90 were intact.
The plaintiffs called two witnesses who testified in proof while the defendant testified on his own behalf and called no witness. The 2nd plaintiff’s witness one Ahmed Tijjani and one Mr. Ekisola appeared abruptly and asked for adjournment. Both failed to appear in court any more. The learned counsel for the Defendant also appeared in court.
On 5/2/92 one Mr. Awuja, A representative of the plaintiffs was in court but could not explain why Mr. Ekisola, was not in court. Again Ahmed Tijjani was not in court to continue testifying for the plaintiffs. The learned Judge at this stage closed the case for the plaintiffs.
The Defendant, Abdulwahab testified with the hope of proving his counter-claim.
The trial court non – suited the plaintiffs. He stated thus:-
“I am aware of the fact that before an order for non-suit is made the court should give the parties the opportunity of being heard on the non-suit but the plaintiffs and their counsel have stopped attending court while it will be an unfair advantage to allow only the defendant to be heard on the issue when from my findings he is indebted to the plaintiffs but the amount being claimed falls short of the amount he is owing but which amount I cannot ascertain.
I accordingly enter a non-suit against the plaintiffs. With regards to the counter-claim of the defendant, I hold that the defendant has failed to establish his counter-claim and it is accordingly dismissed”. See pages 142 – 158 of the record.
The Appellant Alhaji Abdulwahab Lawal unsuccessfully appealed to the Court of Appeal Lagos Division. He filed a Notice of Appeal containing nine (9) grounds of appeal. I reproduce the grounds without their particulars thus:-
GROUND ONE
The learned trial judge erred in law in rejecting Exhibit 5 already admitted in evidence on the ground that the letter was not addressed to the defendant nor copied to him and that it is inadmissible through the defendant.
GROUND TWO
The learned trial judge erred in law when he held:
“I have earlier on stated the arrangement between the parties for the repayment of the cost price of the vehicle by instalments. I therefore find it difficult to understand why the defendant decided to jettison that arrangement by by-passing the 2nd plaintiff to deal with the 1st plaintiff through Gadzama”.
GROUND THREE
The learned trial judge erred in law when he held:
“Where issues are joined on such vital fact, my humble view is that each party is enjoined to establish his case and not depend on the weakness of the other party’s case. Although one Gadzama General Manager of 1st plaintiff wrote on behalf of 1st plaintiff to the General Manager of 2nd plaintiff that three accounts have been settled – see Exhibit “G” – one would have expected the defendant to establish this positive act of payment by tendering receipts of such payments issued to him by 1st plaintiff as was done with regard to Exhibits “1 and 1A”, since the normal procedure would have been for him to pay to 2nd plaintiff who would then inform 1st plaintiff of such payments and not the other way round. In terms of proof there is no proof of such payments before me having regard to the pleading of the plaintiffs and the evidence of the plaintiff witnesses. As further proof, one would have expected the defendant to call the said Gadzama as his witness. This is so because the pleading of the plaintiffs and the evidence of plaintiff witnesses with documents admitted in evidence show that the defendant is in arrears in the following accounts:… what is more these accounts were tendered by the 1st plaintiff whose General Manager wrote that accounts Nos. 65875, 65876 and 66057 have been settled”
GROUND FOUR
The learned trial judge erred in law when he expunged Exhibits 2 and 4 in his judgment on the ground that the documents were inadmissible through the defendant and discountenanced their contents accordingly.
GROUND FIVE
The learned trial judge erred in law when he held:-
“This action was filed on 15/4/87, Exhibit ‘4’ was written on 11/9/87 long after this case has started ditto Exhibit 5 which is not addressed to the defendant and should not have been tendered through him.
Defendant’s statement of defence and counter-claim was filed on 30/9/87 that is some five months after the action was filed and some three months after Exhibits “G” was written and nineteen days and eight days respectively after Exhibits 4 and 5 were written. Exhibits 6 letter from defendant’s solicitor to the 2nd plaintiff dated 30/6/87.
The reply Exhibit 7 dated 14/7/87 were written after this case was already in court. This fact would make all these documents inadmissible as documents made when proceedings were pending or anticipated.
See section 90 (3) of the Evidence Law Cap 39 Laws of the Lagos State of Nigeria 1993.”
GROUND SIX
The learned trial judge erred in law when he held:-
“I hold that there is no credible evidence before me that the defendant has settled fully any of the ten agreements. By virtue of clause 8 of the agreement the plaintiffs acted lawfully by repossessing the vehicles.
This finding of course disposes of issue (iv) posed by learned counsel for the defendant. I hold that the plaintiffs are not liable to pay damages for failure to release the vehicles repossessed by the plaintiffs. What one sees in this case is a collusion between the said Gadzama and the defendant to manipulate this case to his advantage after the defendant had been sued to court.”
GROUND SEVEN
The learned trial judge erred in ordering non-suit without hearing the defendant.
GROUND EIGHT
The learned trial judge erred in law when he relied on and used the evidence of the 2nd plaintiff’s witness against the defendant in his judgment despite the fact that the said 2nd plaintiff’s witness was unable to conclude his examination in chief and was not cross examined by the defendant.
GROUND NINE
The judgment is against the weight of the evidence.
The judgment of the court below is unanimous and held thus:
“With the foregoing, Respondents’ lone issue is resolved against them while Appellant’s five live issues are resolved in his favour. S. 16 of the Court of Appeal Act is invoked in ordering respondents to release to the Appellant vehicles with Registration No PL 6315 JD; PL 2529 JD and PL 2527 JD covered by agreements numbers 66707, 66057, 65875 and 65876 – the accounts having been fully settled by the Appellant.
Damages in the sum of N1, 264.200 claimed by the Appellant is awarded to him intoto same having been made out as well.
The appeal having been found meritorious and allowed, its cost is fixed at N10,000 against the respondents in favour of the Appellant”.
When the appeal was allowed by the court below the Appellant Alhaji Abdul-Wahab Lawal appealed to this honourable court and filed Notice of Appeal containing three grounds of appeal. They are hereunder reproduced without their particulars:
GROUND ONE
The lower court erred in law when it held that Exhibit 5 was legally admissible regardless of the provisions of Section 91 (3) of the Evidence Act.
GROUND TWO
The lower court erred in law when it held that relevancy determines admissibility or otherwise of any pieces of evidence.
GROUND THREE
The lower court erred in law when it attributed Exhibits 4, 2 and 5 to Mr. Gadzama rather than the first respondent (the 1st plaintiff) in the High Court.
Parties filed and exchanged briefs of argument; both adopted their respective briefs of argument before us on 30/9/13.
The appellant’s counsel formulated two issues for the determination of this appeal thus:-
- Whether having regard to the facts and circumstances of this case, Exhibits 4, 5, 6 and 7 were legally admissible regardless of the provisions of section 91 (3) of the Evidence Act.
- Whether the Court of Appeal properly evaluated the evidence in overturning the decision of the trial court and allowing the appeal in the court below.
On issue one, the Appellants counsel contended before us that it is not in dispute that Exhibits 4 and 5 are documents on the state of indebtedness of the Respondent to the Appellant by virtue of the Hire Purchase Agreement and the documents were written by A. K. Gadzama, an employee of the Appellant. More significantly, it is not in dispute that the Exhibits were made during the dependency of the suit.
The crux of the complaint of the Appellant against the decision of the Court of Appeal relates to the finding that Mr. Gadzama was not an interested party within the meaning of section 91 (3) of the Evidence Act. That section provides thus:-
“Nothing in this section shall render admissible as evidence any statement made by the person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”.
In analysing this provision the Court of Appeal relied on three decisions from England where the same provisions, i.e. Section 91 (3) had been considered. There is dearth of Nigerian Britain authorities on the point. In Beamans Limited & Anor v. Metropolitan Police District Receiver (1961) 1 WLR 364; (1961) 1 All E. R. 384 per Seelers L. J. At p. 388.
“In opening the case learned counsel for the defendant, the appellant, cited to the court every authority on this first question of “a person interested” which has arisen since the Act of 1938 was passed. They show a not altogether uniform view about how the essential provisions of s. 91 (3) should be considered. If I felt that it would be helpful to interpret this subsection by substituting words from the cases or my own words in this court for those of the Act, it might have been profitable to go through all those cases and see if any such solution could be found, but the more I think of this matter the more I feel satisfied that, whilst the cases can be looked at as a guide, it is desirable in every case that the words of the section should be looked at and interpreted in the light of particular circumstances”.
Again the Court of Appeal in its judgment at page 304 of the record referred to the case of Evan v. Noble (1949) 1 KB 222 at 225 as authority for the proposition that the mere fact that the maker of a statement is the servant of one of the parties to the suit will not make him “a person interested”. However, the Court of Appeal did not allude to the earlier and in one humble submission, crucial part of the judgment at page 224 where Birkett J. Stated thus:-
“In the course of my judgment I referred to the observation of Morton J. M. Plomien Fuel Economic Co. v. National Marketing Co. where he said “it may be that there are circumstances in which it might be said that a servant of the company was not “a person interested”. Note that he used the word “Might”.
Learned counsel for the Appellant herein humbly submitted that their Lordships in the court below wrongly assumed that a general proposition such as they suggested actually emanated from the case of Evan and Evan v. Noble (supra) which is evidently not the case.
The Appellant argued that it is instructive to note that the court below in its judgment at page 302 of the record mentioned the added reason for rejection of the those documents by the trial court which was that they had been fraudulently supplied by A. K. Gadzama to enable the Respondents defraud the Appellant. The court below dismissed such conclusion without stating why.
That being the case, learned counsel further submitted that it was the rejection of this crucial fact that paved the way for the Court of Appeal’s wrong reliance on the English cases of :-
Bearmans Limited V. Metropolitan Police District Receiver and Evan v. Noble supra, counsel emphatically argued that the particular circumstances of this case clearly show that A. K. Gadzama was an interested person within the meaning of S. 91 (3) of the Evidence Act and therefore the trial court was right in rejection of Exhibits 4, 5, 6 and 7. He relied on the decision of this court in Samson Owie V. Solomon E. Igaiwi (2005) 5 NWLR. It was concerning a letter Exhibit E. which was made when the proceedings were before the trial court in anticipation of the proceedings pending at the material time. See especially the statement of Tobi JSC pp 219 last paragraph. More importantly in this case, the admission of the exhibits played a significant role in the decision of the Court of Appeal in overturning the trial court.
There is no proper evaluation by the Court of Appeal.
The provisions of the Evidence Act relied upon by the Appellants counsel in this matter do not support his case.
The Exhibits 4, 5, 6 and 7 could be admissible. The said A. K. Gadzama, who made the said document, did it in his official capacity and not involved personal opinion. Having considered the totality of the Appellant’s brief, Respondent’s brief and the Appellant’s reply brief, I hold that Mr. A. K. Gadzama at the material time was not biased. That being the case, issue one is resolved in favour of the Respondent herein. A. K. Gadzama I emphasised cannot be described as a person interested – NITEL V. Ogunbiyi (1992) 7 NWLR (pt. 255) 543 at 563 – 567 F – C.
On issue No. 2, whether the Court of Appeal properly evaluated the evidence in overturning the trial court and allowing the appeal of the respondent.
Learned counsel for the appellant contended that the lower court came to the erroneous conclusion that the combined effect of all the Exhibits contravenes S. 91 (3) of the Evidence Act, in that the Respondent has successfully proved that he stood liable to the tune of N181, 158,02k in respect of the accounts he had not settled. He has also proved that five other accounts had been settled. Learned appellant’s counsel continued and argued that contrary to the erroneous conclusion of the court below, there was un-challenged documentary and viva voice evidence of PW1 in the trial court to the effect that the sum of N434, 832.07. was still outstanding from appellant in the court below (see page 82 of the record).
He then submitted that PW1 not only identified the total outstanding due and unpaid by the respondent hirer contained in the agreement but the Respondent’s counsel had every opportunity to cross-examine PW1 on the evidence given by him. He then cited Onuoha v. The State (1989) 2 NWLR (pt. 106) 34 C – H. This court in that case in dealing with veracity and credibility of witness highlighted the following crucial points as follows:-
a. Knowledge of the facts to which the witness testified;
b. His dis-interestedness in the case;
c. His integrity; and
d. Whether the evidence is contradictory or is contradicted by surrounding circumstances.
He also, on that line, added the following cases;
i. Ugo v. Ndiamaow (1999) 13 NWLR (pt. 663) 152 at 164 A-B; and
ii. Fan Milk Limited v. Edmeroh (2000) 9 NWLR (pt. 672) 402 at 417 – D-E.
Learned counsel for the appellant then submitted that the assertion of the lower court on page 16 – 17 of the judgment to the effect that “from the evidence led in proof of his pleadings, the Appellant has established that the Respondents were wrong to have repossessed those vehicles in respect of which he had fully paid for. He has also established the injury he suffered as a result of the Respondents’ conduct” is clear evidence of their lordships’ failure to evaluate the evidence of a key witness of the Appellant in the person of Mr. Theophilus anaesoronye Awoja (Pw1). He further submitted that this singular act on the part of the lower court renders the judgment liable to be set aside. He cites Paul O. Omoregbe v. Ehigiatoredo (1971) All NLR 285.
Learned counsel for the appellant Dr. A. Olawoyin humbly urged this court to declare the judgment of the Court below as erroneous and liable to be set aside and uphold the judgment of the trial court for the following reasons:-
i. There is no explanation as to why there was no probative value ascribed to the evidence of Pw1.
ii. That Exhibits 4, 5, 6 and 7 may be relevant but are inadmissible as contravening the provisions of section 91 (3) of the Evidence Act.
In his own position, learned counsel for the respondent P. O. Ayoola arguing issue No 2 above said that there are plethora of cases that define the jurisdiction of the Court of Appeal as to how, and when, to evaluate the evidence of the trial court. In the case of major Umoru and Anor V. Zibri and Ors, supra, the Supreme Court held inter alia.
“It is well settled that a trial judge who sees and hears the witnesses giving evidence before him has the exclusive right to assess their demeanor so as to determined whether they are telling the truth or not. He can in this way determine the credibility or otherwise of the testimony of every witness who testified before him. If this is done properly, it is not for the appeal court to interfere in any way possible.
(italics mine)
There is no doubt, that at the trial court the appellant abandoned their case mid-way and thereby the trial court had closed the case for the Appellant. The judge evaluated the evidence the Appellant was able to put on record and entered a “non-suit” for the Appellant. The court below on page 305 paragraph 4 of the record referred to this fact… (Light it).
Learned counsel for the respondent submitted forcefully that unless and until there is a miscarriage of Justice, in the findings, the Court of Appeal does not have the jurisdiction to evaluate the evidence of the Pw1 – as argued by the appellant. Counsel further so contended that it is not the same with the case of the Respondents at the trial court, where the trial court unlawfully rejected the documentary evidence and dismissed the counter-claim of the respondent. The court below rightly held that “where the evidence to be appraised are documentary evidence, because the exercise does not hinge on the credibility of witness seen and assessed only by the trial court the appeal court would be in as good a position as the trial court had been. The court would lawfully intervene to re-appraise the relevant evidence with a view to checking the injustice the perverse decision of the trial court would have caused the appellant”. Learned counsel for the Respondents urged this court to resolve this issue No 2 against the appellant and to dismiss this appeal and to uphold the judgment of the court below.
My lords, having considered all the issues submitted to us for our consideration and having also considered closely the submissions of both counsel I come to the conclusion that all the two issues formulated by the appellant herein are hereby resolved against the appellant. Appeal lacks merit and same is hereby dismissed. The judgment of the court below was correct and in order and is hereby sustained and affirmed. I make no order as to costs.
SC.26/2007
