Aleruchi Etcheson Nsirim V. Omuna Construction Company (Nigeria) Limited (1993)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
This is an appeal against the judgment of the High Court of Rivers State holden in Port Harcourt delivered by Ungbuku J, as he then was. on 29th of April,1987 in Suit No: PHC/36/82. In that suit, the respondent/cross-appellant referred to simply as respondent was the plaintiff whiles the appellant, cross-respondent, to be referred to as appellant was the defendant. As set out in paragraph 15 of the further amended statement of claim, the respondent’s claim was as follows:
“(i) Declaration that the Zenith Concrete Block Making Machine, Teva Mixer equipment and other assets now being employed by the defendant in the Block Moulding Industry now being carried on by the defendant at Omunakwe Nsirim Road, Mile 4, Port Harcourt under the name and style of Etcheson & Sons is the bona fide and beneficial property of the plaintiff.
(ii) A declaration that the aforesaid Block Moulding Business now being carried on by the defendant at Mile 5, Port Harcourt under the name and style of Etcheson & Sons is being carried on in fraud of the plaintiff.
(iii) An order for an account of all sales and of the monies had and received by the defendant in the running of the moulding industry from December, 1980 up to date of judgment.
(iv) An order for an account of the net profits accruing from the moulding industry and how the same are made.
(v) An order for the payment by the defendant to the plaintiff of all monies found to be due to her on the taking of such accounts.
(vi) An injunction to restrain the defendant by himself, his servants or agents or howsoever otherwise from paying the proceeds of the said business into any other account otherwise than the plaintiff’s account or any other account opened by the plaintiff for the said business.
(vii) In the alternative, the plaintiff claims the sum of N1,000,000 (One Million Naira) as damages for breach of oral agreement made between the plaintiff and the defendant sometime in March, 1990 at Port Harcourt.
(i) Purchase of Zenith Machine Teva
Mixer and Concrete Loader and
Generating Machine N145,000
(ii) Loss of profit and use of the Machine
mentioned in Item (i) above from
July 1980-April, 1982 at the rate of
N26.00 (Twenty-Six Naira) per month N572,000
General damages N283,000
Total N1,000,000
Pleadings were duly filed and exchanged and subsequently amended. At the trial, the respondent called four witnesses while the defence called three witnesses including the appellant.
For a better appreciation of the issues in controversy in this appeal, a background knowledge of the facts of the dispute between the parties is necessary. The respondent company is a limited liability company incorporated in Nigeria in 1969. It is engaged in construction business. According to Form C.O.7, Exh. H,it has five directors, to wit. Chief Omunakwe Nyeche Nsirim, the founder, chairman and managing dIrector,his wife Mrs. Maureen Nsirim, his son Ndamzi Nsirim and Nyeche Nsirim and his nephew. Etcheson Nsirim who is the appellant in this case. Apart from being a director, he was also the plant manager of the respondent company on a monthly salary of N500.00. At the time dispute arose, he was carrying on a block moulding business under a firm name of Etcheson and Sons block moulding industry.
The gist of the case of the respondent company is that in March, 1980 a meeting of the Board of Directors of the respondent company was held. Four of the directors including the managing director (P.W.3) and the appellant were present. It was decided and agreed at the meeting that the respondent should establish a block moulding industry to reduce the cost of buying blocks for its construction work; that the industry should be temporarily sited on a piece of land at Mile 4 Omunakwe Road belonging to the managing director (P.W.3).
The appellant was to be in charge of both the purchase of the machinery and the management of the industry and was to render account of the proceeds of the business to the respondent. The machinery and equipment for the business was to be purchased from Weidemann and Walters (Nig.) Ltd. and the appellant was directed to negotiate for the purchase.
The appellant made the necessary contact and told P. W.3 that the required machinery and equipment would cost N98,000.00. On 13/4/80, the respondent issued a cheque drawn on its Pan African Bank Ltd. for the sum of N49,000.00 in favour of Messrs Weideman and Walters (Nig.) Ltd. as a deposit or part payment. On 1st July, 1980, the respondent also issued another cheque drawn on its said bank for the same amount and in favour of Messrs Weidemann and Walters (Nig.) Ltd. The appellant paid for and took delivery of the machinery.
It is the respondent’s case that thereafter, the P.W.3 travelled to the United Kingdom and on his return, he observed that the industry had gone into production. He demanded from the appellant the purchase receipt for the machinery but he declined to produce them. The respondent wrote to Messrs Weidemann and Walters (Nig.) Ltd. and from the copies of the receipts Exhibits A and B received from it. it was discovered that they were made in the name of the appellant’s business name. It was also discovered from the signboard mounted at the site of the industry that the appellant was running the industry in his firm name Etcheson and Sons block moulding industry. The appellant was asked to change the name of the business to that of the respondent company and to render account of the business and when he failed to co-operate, the respondent went to court. In their evidence in chief, the P.W.3 and Maureen Nsirim (P.W.1) made it clear that the decisions taken at the board meeting of March, 1980 at which the directors decided to establish a block moulding industry were made orally and not recorded because the Secretary to the board was absent. Under cross-examination however they stated that the decisions were recorded in the minutes of a subsequent meeting of the Board of Directors but the record of the minutes was not tendered in court.
In his defence, the appellant denied that a meeting of the Board of Directors of the respondent was held as alleged. He asserted that he started negotiations to open a block moulding industry with Messrs Weidemann and Walters (Nig.) Ltd. in the year 1978 and that his firm name was registered with the Rivers State Government in 1979. It was his case that the sums paid over to Messrs Weidemann and Walters (Nig.) Ltd. represented his accrued or cumulative allowance which he invested in a block moulding industry and that the amount was only a proportion of the total cost he incurred in establishing the business. To impeach his credit, a certified record of his evidence when this case was heard before another Judge was tendered as Exh. X. Also tendered as Exh. Y was his statement of defence in another suit between the same parties. His statements in both Exhibits X and Y were materially different from his evidence in the proceedings in this case.
From the case put forward by each party, it was not in dispute that the block moulding machinery and equipment were bought with cheques Exh. O, 01 issued by the respondent company in the name of Messrs Weidemann and Walters (Nig.)Ltd. It was also evident that the purchase receipts Exhs. A and B were made in the firm name of the appellant. The main issue that arose for determination in the lower court was essentially the purpose of which the two cheques in question were issued to Messrs Weidemann and Walters (Nig.) Ltd. In a considered judgment the learned trial Judge held that the respondent had not satisfactorily proved its case and also that the appellant failed to prove his and after hearing from counsel in both sides he non-suited the respondent. Both parties were dissatisfied with the judgment. The appellant appealed against it complaining, inter alia, that since the respondent in the opinion of the trial court had not proved its case, the proper order to make ought to be one of dismissal and not an order of non-suit. On its own part, the respondent cross-appealed contending that from the available evidence before the court it had proved its case to entitle it to judgment instead of non-suit.
Pursuant to the rules of this court, the parties by their counsel filed and exchanged briefs of argument. For the appellant, an appellant’s brief dated 30th March, 1990 and filed on 7th April, 1990, and appellant’s reply brief dated 1st July, 1991 filed on 22nd July, 1991 incorporating a cross-appellant briefs were mentioned. For the respondent, there was also respondent’s brief dated 27th June, 1990 filed on 4th July, 1990 incorporating the cross-appellant brief. The issues formulated in the two sets of briefs though different in wordings and sequence are identical in content. They are as follows:-
- Whether the learned trial Judge was right in ordering a non-suit having regard to the evidence on record.
- Whether having found as a fact that the plaintiff (Respondent) had not proved its case, the trial court was entitled to discuss the weakness of the defendant appellant’s case and go on to order a non-suit.
- Whether the respondent is entitled to an account of the proceeds of the block moulding industry run under the name and style of Etcheson and Sons.
- Whether the respondent properly pleaded and proved fraud by the appellant.
- Whether the respondent proved its case against the appellant.
The first two issues relate to the grounds of appeal and the remaining three, to the grounds of the cross-appeal.
At the hearing of the appeal, learned counsel adopted their respective briefs with oral arguments in support. In respect of the first issue set out above (appellant’s issue No.2 and respondent’s issue No.10 learned counsel for the appellant submitted that when a case is heard on its merits with all necessary parties before the court, if the plaintiff fails to prove his case the verdict should be one of dismissal and not a striking out or non-suit. The cases cited in support are Olayioye v. Ose (1969) 1 All NLR 281; Green v. Green (1987) 3 NWLR (Pt.6 l) 480; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370. On the above premises, learned counsel contended that the facts accepted by the learned trial Judge to the effect that the plaintiff/respondent had failed to prove its case do not warrant a non-suit. Counsel stated that a non-suit means giving the party that lost another opportunity of re-litigating the same case. He reasoned that since the learned trial Judge found that fraud was neither pleaded nor proved, the appellant was not an accounting party and the respondent had not proved the purpose for which it parted with the sum of N98,000.00 there was no basis for an order of non suit. It was counsel’s view that the elements necessary for ordering a non-suit were not present in the case and there was no further evidence that the respondent would adduce in a new suit.
Responding, counsel for the respondent referred to the pleadings of the parties and evidence led in support. He argued that the learned trial Judge was wrong in relying on the non-production of the minutes of the subsequent meeting of the Board of Directors in holding that the respondent had not proved its case. He submitted that parties are bound by their pleadings and that neither party relied on the minutes of the meeting of the Board of Directors; that since that fact came under cross-examination of respondent’s witness it was inadmissible. In support of his contention, counsel cited and relied on the case of Chief Victor Woluchem & Ors. v. Chief Simon Gudi and Ors. (1981) 5 S.C.291 at 321 and Akpapana v. Nzeke (1983) 2 SCNLR 1 at p.2.
Learned counsel referred to the appellant’s version of the story in which he asserted that the N98,000.00 paid for the block moulding equipment represented cumulative allowances and submitted that the trial court was right in rejecting the story having regard to his evidence and pleadings in previous proceedings Exhibits X and Y in which he gave different reasons for his claim to that amount. Counsel was of the view that from the available evidence the learned trial Judge failed to draw the correct inference from proved facts and had wrongly assessed the probative values of undisputed evidence. He referred to the case of Misr v. Ibrahim (1974) 5 S.C. 55 at p. 62 and urged this court to interfere with the findings of the lower court and hold that the respondent had proved its case. He said the court below was wrong in ordering a non-suit in order not to prejudice another case between the parties still pending in the court. He referred to the case of Dantubu v. Adane (1987) 4 NWLR (Pt.65) 314 at 316 and expressed the view that a non-suit is ordered generally when one of the parties usually the plaintiff proves his case up to a point but some facts needed to prove it by a preponderance of evidence were not adduced in evidence. He finally submitted that the respondent had proved its case and was entitled to judgment.
Regarding issue 2 above (issue I in appellant’s brief and issue 2 in respondent’s brief) the appellant’s counsel stated that in a civil case the question on whom the burden of proof lies depends on the state of the pleadings. He urged that if anyone makes vital allegations in his pleadings and the success of his case depends on those allegations the burden lies on him to prove those allegations. When a plaintiff fails to discharge the burden, his case fails and there would be no need to consider the defendant’s case since a plaintiff is entitled to succeed on the strength of his own case and not on the weakness of the defence. Counsel opined that the learned trial Judge having in the consideration of the respondent’s case found that the respondent had at that stage not proved the main issue as to the purpose for which the N98.000.00 was paid ought to have dismissed the respondent’s claim without going further to consider the case of the appellant.
In his reply, learned counsel for the respondent contended that in arriving at his decision the learned trial Judge was not influenced by the weakness of the appellant’s case but that he did not adhere strictly to the principle of law laid down in the case of Odofin & Ors v. Mogaji & Ors. (1978) 1 LRN 212.
In the appellant’s reply brief, counsel made further submissions to the following effect – that the learned trial Judge rejected the oral evidence of the decision reached at the meeting of the Board of Directors of the respondent company, because the minutes book of the subsequent meeting was not tendered in evidence; that the learned trial Judge was right in so holding for by Section 148(d) of the Evidence Act, the presumption is that the minutes book did not exist; that the recorded minutes of the second board meeting is a piece of evidence which need not be pleaded and that the court was right when under cross-examination of the respondent witnesses it admitted the evidence in respect of the recording in the second board meeting of the decisions taken on the Board of Directors meeting of March 1980. We were therefore urged to allow the appeal.
The foregoing represents in a nutshell the arguments of both counsel on the main appeal and I intend to deal with the main appeal first before embarking on the remaining issue touching on the cross-appeal.
As a convenient starting point, it is necessary to identify or map out the central issue to be resolved in this appeal. To this end, I will start by stating the obvious or what is basic and fundamental and that is that in a legal contest between two parties, if the plaintiff proves his case or fails to prove it in toto, a non-suit order is not an appropriate relief. Where he proves his case, he is entitled to judgment but where he fails woefully to prove same, his case stands dismissed. As a corollary, one cannot correctly hazard an opinion on whether in this case, the learned trial Judge was right in non-suiting the respondent without one first determining the main or central issue of whether the respondent had proved its case or failed in toto to do so. Bearing in mind, that the mere fact that the court below said “I believe” or “I don’t believe” or such like expressions without really evaluating the evidence of vital witnesses does not stop an appellate court from itself evaluating the evidence and seeing whether there was any justification for the use of such expressions: Akibu v. Opaleye & Anor (1974) 11 S.C.189 at 203; J.I.G. Onyia v. Louis & 2 Ors. (1989) 2 SCNJ 120 p.145; Naruma & Sons v. Niger Board Transport (1989) 4 SCNJ 107, 118; (1989) 2 NWLR (Pt.106) 730. It follows, therefore, that the central issue that must first be resolved is whether the respondent had proved its case. As this is the same as the question formulated under issue No. 5 above. I propose therefore to consider issues Nos. 1, 2 and 5 together.
In wading into the central issue as proposed, it is well to bear in mind the reliefs claimed by the respondent against the appellant, which are:
(a) a declaration that the block moulding machines etc in question are its bona fide property.
(b) a declaration that the block moulding industry in question was being run by the appellant in defraud of the respondent.
(c) an order of account.
(d) an injunction.
There was also an alternative claim for damages. Reliefs (a), (b) and (c) formed the main considerations in the judgment of the learned trial Judge. Relief (a) it would appear, is the substantive relief the others being consequential. This being so it is appropriate to deal with it first, for, if it fails the other would automatically collapse. Furthermore it is the issue in controversy in the main appeal while reliefs (b) and (c) relate to the cross-appeal.
With respect to relief (a) above, what the learned trial Judge set out to determine was “the purpose for which the sum of N98,000.00 was paid to Weidemann and Walters Ltd.” Be it noted, that it was not in dispute as I shall show anon that the amount was paid by the respondent through the appellant and for the purchase of the block moulding machines. What was in controversy was whether the amount was paid for the purchase of block moulding machine for the setting up of a block moulding industry for the respondent or whether the amount was meant for the appellant for him to use to buy block moulding machines to set up his own block moulding industry.
In his considerations of this matter, the learned trial Judge reviewed the evidence led by both parties. In particular he referred to the oral evidence adduced by the respondents witnesses about the meeting of the Board of Directors of the respondent company at which it was alleged that the board ‘resolved orally to establish a block moulding industry. He referred to several authorities in support of the view that oral evidence was admissible to prove a resolution taken at a board meeting but he expressed the view that since the respondent’s witnesses testified that the oral decision of the board of its earlier meeting of March, 1980 was reduced into writing in its subsequent meeting of the board, the minutes book containing the decision which is the best evidence ought to have been tendered in evidence. At page 240 lines 17 to 33, page 241 lines 1 to 10 of the record, the learned trial Judge said:-
“I have earlier in this judgment said that the best evidence of the Board of Directors’ decision or resolution is the minutes of the meeting. That does not mean that oral evidence of Board decisions or resolutions are inadmissible.
It is the decision in Ummey v. Fire Proof Doors Ltd. (1916-17) All E.R. (Reprint) 931, Politis v. Okudzete (1967) All (con) 178 at 203 that minutes of a meeting are not exclusive of what takes place there. An unrecorded resolution may be proved by parol evidence.
The alleged decision or resolution taken by the Board of Directors in the meeting of March, 1980 is unrecorded. The plaintiffs have therefore tried to prove the said decision by parol evidence.
What is expected of the plaintiffs is to establish that their story is more likely to be true than that of the defendants. To discharge the onus of proof on them, they (the plaintiffs) have to prove by evidence which convinces the court of the probability of their case rather than that of the defendant. They have not discharged the onus if on both sides is evenly evidence weighed. See Francis Odiete v. Okorie (1973) 1 NMLR 175.
All that the plaintiffs are expected to prove in this case is the purpose for which the N98,000.00 was paid to Weidemann and Walters (Nig.) Ltd. by the hand of the defendant. The plaintiffs have not satisfactorily proved this.”
With due respect, the reasoning of the learned trial Judge in holding that the respondent had not proved its case satisfactorily is erroneous for the following reasons:- Firstly, it is an elementary principle that parties are bound by their pleadings and that evidence not pleaded goes to no issue: Emegokwue v. Okadigbo (1973) 4 S.C. 113; George v. Dominion Flour Mills Ltd, (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 78; Orizu v. Anyaegbunam 1 LRN 216.
It was not the case of either of the parties on the pleadings that the oral decision of the board meeting of March, 1980 was recorded in the minutes of a subsequent meeting. That piece of evidence was extracted from the respondent’s witness under cross-examination. On the authorities, it is clearly inadmissible: See Usenfowokan v. Idowu (1969) 1 All NLR 125/131; Ibik v. Mobil Oil Nig. Ltd. (1970-71) 1 ECSLR 151-153; Din v. New Northern Nigeria Newspaper Ltd. (1986) 2 NWLR (Pt.22) 353.
Secondly, as the learned trial Judge rightly pointed out, minutes of a meeting are not exclusive evidence of what took place at a meeting. This is consistent with the provisions of Section 131(d) of the Evidence Act which excludes oral evidence only in respect of written judgment of courts or other judicial proceedings, written contracts or any written grant or other disposition of property. Subsection 2 of Section 131 of the Act specifically provides:
“(2) Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.”
The decision of the Board of Directors, in my view, does not fall into any of the categories of documents the oral evidence of which is excluded under subsection (2) above. It follows that even if there was a minute book of the respondent company containing the decision of the Board of Directors the respondent was entitled to call oral evidence of it. The learned trial Judge, it would appear did not seem to have evaluated the oral evidence of P.W.1 and P.W.3 on the decision of the Board of Directors before coming to the conclusion that the respondent had not satisfactorily proved its case.
In spite of his findings that the respondent had not proved its case, it proceeded further to make specific findings in favour of the respondent. Thus at p.241 lines II to 27 of the records, he said:-
“The plaintiffs pleaded and proved the following facts:-
(1) That the sum involved is their money;
(2) That the money was paid in two instalments of N49,000.00 each;
(3) That the two cheques Exhibits “Q and 01” were signed by P.W.1 and P.W.3, the two directors who are signatories to the plaintiffs’ account.
(4) The cheques were made payable to Weidemann and Walters (Nig) Ltd.
(5) That the cheques were collected by the defendant himself and paid to Weidemann and Walters (Nig) Ltd.
(6) That no forwarding letters were sent along with the cheques.
(7) For the money paid, Weidemann and Walters (Nig) Ltd. issued two receipts Exhibits “A and B” to the defendant in the name of Etcheson and Sons. The defendant admitted all these facts.” (italics supplied).
After making the above findings favourable to the respondent and against which there is no appeal by the appellant, the learned trial Judge then went ahead to consider the case of the appellant. In this regard, he referred to the appellant’s pleadings and evidence where he the appellant stated that N98,000.00 paid for the machinery in dispute represented his cumulative allowances. The learned trial Judge was not convinced with that account. He referred to the certified copy of the proceedings of this case where it was part-heard by another Judge. In the said proceedings (Exh.X) the appellant gave evidence inconsistent with this account in he present proceedings in the lower court. Another piece of evidence considered was Exh. Y. which was the appellant’s statement of claim in another suit, to wit, PHC/203/82 between the same parties in which the appellant pleaded that the N98,000.00 paid for the block moulding machinery and equipment represented his share of dividends as a co-ordinator of the respondent’s company. Taking all these into account, the learned trial Judge concluded that the appellant’s claim to the N98,000.00 is inconsistent. Part of the judgment of the learned trial Judge on the matter under consideration is at pp.241-244 of the record. It is pertinent to refer to portions of the judgment which are as follows:-
“But in his defence the defendant claimed that the said sum paid by the plaintiffs to Weidemann and Walters (Nig) Ltd. was for his personal benefit. He pleaded in paragraph 6 .of his statement of defence as follows:
(a) That the money paid by the plaintiff to Weidemann and Walters (Nig) Ltd. represented accrued allowances to the defendant
(b) ….
Under cross-examination, the defendant said the said approval was not made in a meeting. The defendant pleaded nothing more and proved nothing more ….
The defendant did not state how the alleged allowance were (sic) made up. The said allowances accrued from when to when and at what rate; the defendant careless (sic) to state. There is no evidence that his co-directors have each been paid similar sums. I think it is unreasonable to believe that a huge sum of N98,000 is one’s accrued allowances with a flash of one sentence and nothing more. This claim is being heard de novo. It was part heard by retired Justice Maxwell sometime in 1983. Certified copy of the part heard proceedings was tendered in these proceedings as Exhibit “X”. In Exhibit X the defendant testified as follows:-
“I met the Chief Nsirim. I told (sic) my interest to start block moulding industry. He agreed and approved It…”
The defendant admitted that he made the statement. This version, if pleaded and proved would have been more convincing than the one sentence statement the-defendant made at the trial before this court.
The defendant has sued P.W.3 Chief O.N. Nsirim in suit No. PH/203/82 in respect of this same block moulding industry. The case is part heard. In paragraph 5 of the statement of claim in that suit the defendant averred:-
“Pursuant to the plaintiff’s plan to establish the block moulding industry a sum of over N98,000.00 was paid to Weidemann and Walters (Nig) Ltd. for the purchase of Zenith Concrete block machine, Teva Mixer and Concrete Loader which was delivered to the plaintiff. The said Purchase was financed partly through the plaintiff’s dividend as a co-director from Omuna Construction Co. Nigeria Ltd.”
The defendant said under cross-examination that “dividends” in this paragraph has been amended to read “Accrued Allowances” but the said amended statement of claim was not tendered in evidence.
It is now established that the defendant’s claim that the sum of N98,000.00 is his own bona fide property is inconsistent.”
The appellant did not appeal against the above adverse findings made against him. The main plank on which he seeks to impugn the judgment of the lower court is that since the trial court had earlier held that the respondent had not proved its case, the court should not have proceeded to consider the appellant’s case having regard to the principle of law that a plaintiff must succeed on his case and not on the weakness of the defendant’s case. With respect, I do not share appellant’s submission on this. The principle of law referred to which was stated in the celebrated case of Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 has long been qualified or modified. As was stated by the Supreme Court, “the acronym that a plaintiff must in a claim for a declaration of title rely on the strength of his case and not on the weakness of the defence now admits of a number of recognised exceptions. It has no place where there are facts and factors in the defendant’s case which support the plaintiffs: See Akinola and Anor v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR, 224 p.225: Akunwata Nwagbugu v. Chief M.O. Ibeziako (1972) 2 ECSLR (Pt. 1) 225 at 338. Also in quite a number of cases the onus of proof is on the defendant. An example is where the defendant in his pleading admits that the plaintiff was the original owner, the onus is on the defendant to prove the absolute grant to him. See Ochonna v. Unosi (1965) NMLR 321″ per Nnaemeka-Agu, J.S.C. in Lasisi Akanmi Buraimoh F. Rebecca Ayinka Bamgbose (1989) 6 SCNJ p.36 at p.45; (1989) 3 NWLR (Pt.109) 352.
In the consideration of the evidence before it, what a trial court ought to do is to see if the plaintiff or the party on whom the burden of proof lies has made out a prima facie case; If he fails to do so, then this case is dismissed but where he succeeds, then the court has to consider the evidence of the other party in rebuttal. As was stated in Woluchem v. Gudi (1981) 5 S.C. 291 at 315, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing prima facie that she had title to the land; See Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 at 376. This procedure is in line with the provisions of Section 136 of the Evidence Act.” At the stage the trial court held that the respondent had not proved its case, it appears that the court was dealing with the evidence in respect of the unrecorded resolution of the meeting of the Board of Directors of the respondent company. That is only one piece of evidence led by the respondent witnesses. Before considering the appellant’s case, the trial court as I had pointed out earlier made findings favourable to the respondent to the effect, inter alia, that the block moulding machine and equipment in dispute were paid for by the respondent company. By that finding, it seems to me that the respondent had made out a prima facie case to warrant the consideration of the case for the defence.
A far more compelling reason why the court below was right in considering the appellant’s case becomes apparent when one examines the pleadings of both parties to ascertain the party on whom the burden of proof lies. In this regard, I cannot agree more with the appellant’s counsel when he submitted that in civil cases the question on whom the burden of proof lies depends on the state of the pleadings. The rule is that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmative: Messrs Lewis and Peat (NRI) Ltd. v. A.E Akhimien (1976) 7 S.(:. 157 at p.169. Generally the primary onus of proving his case lies on the plaintiff. But this onus may be discharged in the pleadings as by the rules of pleading there is no onus to prove that which had  been admitted; Lawrence Onyekaonwu v. Ekwubiri & ors. (1966) 1 All NLR 34; Balogun v. Labiran (1988) 3 NWLR (Pt.80) 66 at 83. By Section 136(1) of the Evidence Act, “in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side …”
I do not propose to set out the relevant paragraphs of the parties’ pleading which are of considerable prolixity. Suffice it to say that the respondent pleaded that it issued two cheques each for N49,000.00; the cheques were drawn on its bank account with Pan African Bank Ltd; they were made in the name of Messrs Weidemann and Walters (Nig.) Ltd; they were meant for the purchase of block moulding machine and equipment; the cheques were given to the appellant as a director of the respondent company to pay over to Messrs Weideman.n and Walters (Nig.) Ltd.; the appellant paid over the cheques and took delivery of the machines. The appellant admitted all these facts in his own pleadings. By his admission, the burden of proving that the block moulding machines and equipment which the respondent paid for belongs to him and not the respondent lies on him for if no evidence were led on either side, he would certainly lose. From the foregoing, I am of the firm view that the learned trial Judge was right in considering the appellant’s case.
Adverting to the main issue under consideration, that is, whether the respondent proved its case to be entitled to judgment instead of a non suit, it becomes necessary to examine the evidence available to the court below to see if it arrived at the right conclusion in its judgment. In so doing, it is well to bear in mind that in civil cases, proof is based on balance of probabilities.
The procedure for determining where the evidence preponderates is as outlined in the celebrated case of AR. Mogaji and Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. p.91 at 94 where Fatayi Williams J.S.C., as he then was, said:-
“In short before a Judge before, whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses.”
Guided, as I am, by this principle, it is clear that even if one ignores the respondent’s evidence on the unrecorded resolution of the Board of Directors meeting, which the trial court rejected, the respondent nevertheless adduced credible evidence that it paid for the block moulding machines and equipment which inferentially means that they belong to it. The appellant led no credible evidence to balance that of the respondent.
Tritely, an appellate court does not ordinarily interfere with the findings of the trial court. The appraisal of oral evidence and the ascription of probative values to such evidence are the primary duty of a tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court has made an imperfect or improper use of opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from the accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support per Coker, J.S.C. in Fashanu v. Adekoye (1974) 6 S.C. p.3 at 91, see also Y.A. Lawal v. Chief Yakubu Dawodu & Anor (1972) 1 NMLR (Pt.2) p.270.
In this case where it is established that the respondent paid the sum of N98,000.00 for the block moulding machine and equipment and the appellant was prevaricating in claiming that that amount was meant for him, it goes without saying that the trial court was palpably in error in failing to draw the reasonable and irresistible inference that the goods purchased by the respondent belongs to it. The findings of the learned trial Judge cannot be allowed to stand. It is therefore my judgment that the respondent is the owner of the property in question. It parted with its money to purchase the machinery to establish a moulding industry for itself.
Learned counsel on both sides have for different reasons impugned the judgment of the lower court for ordering a non suit. A trial court has an unfettered discretion to order a non suit. But the discretion is a judicial discretion hence the power should be exercised with utmost restraint in accordance with settled principles and not capriciously. Each case must be determined on its own facts. The order of non suit is not to be employed for affording yet another opportunity to a party who had failed to discharge the onus of proof which lies on him but only G when in the interest of justice, the plaintiff has only failed to get judgment on account of a hitch of which the defence is not, in the opinion of the court entitled to take advantage. Efetiroroje v. Okpelefe II (1991) 5 NWLR (Pt.193) 517 at 553 – 556. As his reason for ordering an non-suit, the learned trial Judge on page 246, lines 3 to 10 had this to say:-
“Considering the facts and circumstances of this case and especially the issue of the N98,000.00 and the defendant’s case, I am of the view that dismissal will not meet the justice of this case. I will not give a judgment that will prejudice the case of either party in suit No. PHC/20/82 still pending in court, I would rather steer a course that would give the parties in that suit a fair chance.”
The reason given by the learned trial Judge in ordering a non-suit which is to avoid prejudicing the case of either party in another case still pending in court is irrelevant. An appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under a misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matter or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate material and in all other cases where it is in the interest of justice to interfere. University of Lagos and Anor v. Aigoro (1985) 1 NWLR (Pt.1) 143. As the order of non-suit was based on an irrelevant consideration and having regard to my finding that on the printed record, the respondent had proved its case, it is my view, and I do hold that the learned trial Judge was wrong in non-suiting the respondent. The conclusion that I have reached is that although the learned trial Judge was right in considering and taking account of the appellant’s case in arriving at his decision, he was clearly in error in non-suiting the respondent when from the record it was established that the block moulding machines and equipment belonged to it. This disposes the main appeal in favour of the respondent.
The remaining issues for determination emanating from the cross-appeal will now be dealt with. The 3rd issue is whether the respondent is entitled to an account of the proceeds of the block moulding industry operated by the appellant in his business name (issue 4 of the respondent brief and issue 1(1) of appellant’s). In respect of this issue, counsel for the respondent argued that the appellant was a director of the respondent company; that the cheques for N98,000.00 were given to him by the respondent for the latter’s use but that the appellant instead of using it for the respondent’s benefit falsely claimed the money as his own. Counsel referred to the case of Adedire and Ors. v. The Caretaker Committee of Ife Divisional Counsel & Anal’. (1969) 1 All NLR 39 pp.46-48 and submitted that the appellant is an accounting party in that there exists between the respondent and the appellant a contractual or fiduciary relationship as renders the appellant liable to account for the money which the respondent gave to him.
In response the appellant’s counsel submitted that the appellant could not be properly called an accounting party just by virtue of his position as a director. He prayed in aid the cases of Hulton v. West Cork Rly Co. (1983) 23 Ch.D 654 and Bell v. Lever Brothers Ltd. (1932) A.C. 161 and submitted that directors are not employees or servants of their companies.
Counsel, however conceded that generally directors are fiduciaries to their company, vide Selangor United Ruhber Estates Ltd. v. Goduch No. 3 (1968) 1 WLR 1553 but he added that the status of anyone director would depend on the circumstances of each case in relation to the set up of the company. Counsel contended that in the circumstances of this case the appellant cannot be called to account for the proceeds of the block moulding industry because the respondent could not establish the purpose for which it parted with the sum of N98,000.00 and therefore it could not be said that the appellant held the amount in trust of the respondent company.
The issue under consideration is whether appellant in the circumstances of this case is an accounting party in relation to the respondent with respect to the sum of N98,000 used for the purchase of block moulding machines and equipment which the appellant converted for the running of his own personal business. N98.000 was paid out, that the appellant misused the sum coupled with the criminal ingredients of the offence. He stated that the learned trial Judge found that these claims had not been proved and that moreover the respondent was infact shown to have been doing business with the appellant who purportedly defrauded it.
The submission of learned counsel for the appellant on the standard of proof in a civil case where the allegation of crime is in issue is, undoubtedly, a correct statement of law. His further contention that a case of fraud had not been made out and that respondent was doing business with the appellant is arguable. If an act is done which amounts to a crime, the mere fact that the victim of the crime does business with the perpetrator does not detract from the criminality or criminal quality of the act. At this juncture, let me refer to the appellant’s evidence under cross-examination p. 188 lines 10-23 of the record: on
“The cheques given to me are plaintiff’s company cheques. They are signed by two directors. I took the cheques personally to Weidemann and Walters. I obtained receipts in my business name. I did not instruct Weidemann and Walters (Nig.) Ltd. to write the receipts in my name. Etcheson & Sons not written on the cheques. Weidemann and Walters. issued the receipts in my business name because I had negotiated with them and they had given me quotations. I told them that it was the money for their quotation. I did not send the receipts back to plaintiff company because there was no need for it.
I was making N1,000.00 a day or N30,000.00 a month from the sale of blocks. I was paying the proceeds into my business accounts not plaintiffs account.”
By that testimony, it is abundantly clear that the respondent gave its cheques to the appellant to buy the block moulding machinery from Weidemann and Walters. The appellant bought the machinery and by his own conduct obtained the purchase receipt thereof in his business name – Etcheson and Sons. Thereafter, he commenced using the machinery in running the block moulding industry appropriating to himself the proceeds accruing therefrom. In those circumstances, I am at a loss to appreciate the strength in the argument that a case of fraud had not been made out against him. H is defence of claim of right was bogus and not believed. Evidence that is not believed cannot ground a defence. Ukut V. State (1992) 5 NWLR(Pt.240) 202 at 213. The answer to the issue under consideration is in the affirmative.
From all that I have said hereinbefore it is my judgment that the appeal lacks merit and is accordingly dismissed.
The cross-appeal succeeds. Accordingly, the judgment of the lower court in Suit No: PHC/36/82 is hereby set aside since other assets in the business such as land and generating plant were disputed and no findings thereon made, judgment is entered in favour of the respondent in the following terms:-
(i) A declaration that the Zenith Concrete Block Making Machine, ‘leva Mixer, equipment now being employed by the defendant/appellant in the Block Moulding Industry now being carried on by the defendant at Omunakwe Nsirim Road, Mile 4, Port Harcourt under the name and style of Etcheson & Sons is the bona fide and beneficial property of the plaintiff/respondent.
(ii) A declaration that the aforesaid Block Moulding Business now being carried on by the defendant at Mile 4, Port Harcourt under the name and style of Etcheson & Sons is being carried on in fraud of the plaintiff/respondent.
(iii) An order for an account of all sales and of the monies had and received by the defendant/appellant in running of the Moulding Industry from December, 1980 up to the date of judgment, that is 29th of April, 1987.
(iv) An order for an account of the net profit accruing from running the Block Moulding Industry.
(v) An order for the payment by the defendant/appellant to the plaintiff/respondent of all monies found to be due to her on the taking of such accounts.
(vi) The defendant/appellant by himself, his servant or agents/hereby restrained from paying the proceeds of the said business into any other account otherwise than the plaintiffs/respondent’s account or any other account opened by the plaintiff/respondent for the said business.
The respondent is entitled as against the appellant to costs here and below assessed at N750.00 and N500 respectively.
Other Citations: (1993)LCN/0149(CA)
