Jacob Omman V. Darlington Ekpe (1999)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
By a Writ of Summons dated 15th June, 1992 the Plaintiff claims against the Defendant is for:
‘The sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) being money paid by the Plaintiff to the Defendant on or about 18th January, 1987, as deposit on account of immediate supply/delivery to the Plaintiff by the Defendant, 13 bales of Nigerian Wax texture of Clothes manufactured by Wichestex and sold to the Plaintiff at the rate of N10,000.00 (Ten Thousand Naira only) per bale, which bales of cloth the Defendant failed to supply to the Plaintiff despite repeated demands.
- N263,000.00 (Two Hundred and Sixty Three Thousand Naira) being special damages for losts of profits occasioned by failure of the Defendant to execute the said contract or refund the said Sum of N121,805.00 One Hundred and Twenty One Thousand, Eight Hundred and Five Naira).
Particulars of Loss of Profits
From 18th January, 1987 to 15th June, 1992 (1,974 days) or (263 weeks) Minimum profit generated on investment of N 121,805 on bales of Nigerian Wax texture of cloth as aforesaid since 18th January, 1987 to date -N1,000 Per Week
263 weeks – N263,000,00
- Interest on the sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) at the low commercial rate of 18% per annum from 18th January, 1987 to the date of Judgment and thereafter at same rate till the date full and final payment by the Defendant.
- N100,000.00 (One Hundred Thousand Naira) being general damages for breach of contract as aforesaid.”
Pleadings were ordered filed and delivered. On the 13/1/93 the date the case was adjourned for hearing the defendant and his counsel were absent and from the records no reasons were given for their absence and the trial commenced. The Plaintiff witnesses testified and thereafter counsel for the Plaintiff appellant addressed the court and judgment was reserved on the same date. On 18th February, 1993 a new counsel who had now supplanted the former counsel for the defence informed the court that he was taking over the case of the defence and, he moved his motion to present the defendant/respondents case notwithstanding that “judgment had been reserved.” The court in a subsequent adjourned date granted his prayers stating thus:
“It is ordered that the case to be re-opened to the extent that the defendant shall present his defence. I refuse to recall Plaintiffs’ witnesses for cross-examination.”
The Defendant opened his case with testimony of four witnesses. Thereafter both counsel addressed the court at different dates. The main case of the Plaintiff appellant is that he had a contract with the Respondent to supply him with wax materials at the rate of N10,000.00 per bale. He paid him the sum of N121,805.00 for 15 bales of cloth but the Respondent failed to supply the materials or refund the money. The Defendant informed the court that by 1987 he had not known the appellant as he first met him in 1988. He denied telling the appellant that he was a distributor of wax material, or that he collected a sum of N121,805 from the Plaintiff for 15 bales of wax materials. He further emphatically denied being investigated by the Police for holding the appellant’s money. He however admitted receiving a sum of N20,000.00 from the appellant with which he paid his creditor who had seized his Range Rover vehicle. He equally denied being charged with stealing or obtaining money under false pretences pointing out that the appellant employed these gimmicks for his own pursuit. He stated that any transaction or reference to money was the one affecting the issue concerning the seizure of the Range Rover and nothing more. In his judgment the learned trial Judge held as follows after considering the facts of the case as presented to him.
“Having carefully considered the evidence and learned Counsel’s submission and having closely watched the demeanour of each witness during his testimony, I have been given the impression that the side of the matter narrated to the Court by the Defendant and his witnesses sound more credible than the simple story of an agreement to supply clothing materials for which the Defendant collected N121,805 and failed to supply same or to return the money. I believe the defence evidence which links the seizure of the Defendant’s vehicle by Inspector Nwachukwu and the Plaintiff with the Defendant’s report against Nwachukwu who was queried by Police authorities. I also believe that the Defendant was directed, detained and forced to sign the original copy of Exhibit 1 which was given to the police and not to the plaintiff. The evidence of the Defendant and DWs. 3 and 4 are alone on these matters of seizure of the Defendant’s vehicle and the making of Exhibit 1 under forced circumstances. Learned Counsel for the plaintiff was not able to shake DWs 3 and 4 in their strong evidence.”
He thereupon dismissed the claim.
Being dissatisfied with the judgment of the court below the plaintiff filed notice of appeal. There are four grounds of appeal from which he formulated 2 issues for determination and they are as follows:
“(a) Whether the lower court properly appraised and evaluated all the evidence proffered in this suit having regard to the quality of evidence led by both parties.
(b) Whether the lower court was right when it failed to enter judgment in favour of the appellant for the liquidated sum claimed by the appellant in the court below which sum would include the sum of N20,000.00 admitted by the Respondent plus an appropriate award of damages under the reliefs claimed by the appellant.”
The Respondent on the other hand framed 7 issues for determination. The counsel for the Respondent may not have learnt that issues are just the matter to be determined and they are smaller in number having been distilled from the grounds of appeal.
The real issue is whether apart from the sum of N20,000 the Respondent has acknowledged owing the Appellant in respect of a loan, he was in breach of contract for accepting a sum of N100,000.00 to supply bales of Wax which he failed to deliver.
I noted that brevity is the main feature of the evidence of the appellant and his 2 witnesses in the court below. The appellant’s counsel in his brief submitted that the court below failed to make a proper appraisal of the case when all the witnesses for the appellant testified that the Respondent was owing the appellant a sum of N121,000.00 as a result of money had and received for wax cloth which was not delivered. These evidences of the 3 witnesses were not challenged as the court refused to give the Defendant/Respondent opportunity of cross examining them.
A court should ordinarily give clear consideration to any testimony before it, its reasonableness in view of the surrounding circumstance the inherent probabilities the existence or lack of corroboration, accuracy and the truthfulness of the witnesses and all attendant and relevant facts accompanying admission of evidence. I would however sound a note of warning. Although it is the general rule that uncontradicted and undisputed testimony is testimony from which reasonable minds can draw but one conclusion and may not be disregarded by the court but must be accepted as true and control the decision arrived hereafter, it is the law and I so hold that a court is not under all circumstances required to accept as true testimony of a witness even though it is not contradicted as where it is unlawfully and corruptly false, unreasonable, improbable or inconsistent with other evidence in which case it may be given such weight as may be deemed proper or be wholly disregarded. Therefore evidence which is not contradicted by positive testimony and is not inherently improbable or unreasonable cannot be arbitrarily or capriciously discredited, disregarded, despised, rejected, even though in the particular case the witness is a party or an interested witness and unless such evidence is shown to be untrustworthy, it is taken as conclusive and binding on the court or at least it is entitled to and should ordinarily be accorded substantial weight. In the case of Isaac Omaregee v. D.P. Lawani (1980) 3 – 4 S.C. 108 at 117) Idigbe JSC said:
“Again this court has in many of its decisions observed that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. See Odulaja v. Haddad (1973) 11 S.C. p. 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81 – 82.”
In the present case the Respondents were not allowed or afforded any opportunity to challenge the testimonies of the appellant witnesses after they were re-admitted into the matter. Instead they were allowed to tell their own story and it is this story that the court believed. In his judgment he commented thus as to his evaluation and appraisal of the evidence without going into specifics.
“Although, the testimonies of the three witnesses for the Plaintiff were not subjected to scrutiny and opposition under cross-examination, I am obliged to weigh against the copious evidence of the four witnesses for the defence in an imaginary scale and weigh them together to see where the balance of credibility lies.”
He obviously placed much relevance on the evidence of DW2 who though an employee of the Respondent impressed him a lot. As to when the appellant got to know the Respondent he said:
“I am satisfied that the Defendant was introduced to the plaintiff sometime in 1988 as told by DW2 Jacob Onuh. If the Defendant was introduced to the Plaintiff in 1988, he could not have entered into an agreement to sell clothing materials to him in 1997.”
I observed that much of the evidence was concentrated on the fate of the Range Rover after the denial of indebtedness to the appellant.
It is the law that when the court which had seen and observed witnesses testify and drawn a wrong conclusion which is regarded as perverse the Court of Appeal will overturn it. See Fashanu v. Adekoya (1974) 6 S.C. 83 where Coker J.S.C. said:
“The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a Tribunal of Trial and a Court of Appeal would only interfere with performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which these facts do not support or indeed has approached the determination of these facts in a manner which these facts cannot and do not in themselves support.”
Now Nwanedo the learned counsel for the Respondent derided Exh. 1 which he submitted was made in the Police form and the contents was made 4 full years before the action, under duress as it was made while the Respondent was in Police Custody. It is most unfortunate that our citizens now use the army and Police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any document signed in the presence of the Police and relating to a civil claim shall be viewed with suspect particularly if the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the Police to whom a purely civil matter is brought to its attention to enforce or put a fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. Exhibit 1 does not therefore avail the appellant.
In his further submission the appellant prayed that the sum of N20,000.00 odd admitted be paid to him. But this sentimental submission overlooks the fact that he made no such a claim. His claim is for N121,000.00 arising out of a contract that went awry, never fulfilled, not for lending the Respondent a sum of N20,000.00. It is what a party claims that he gets.
When a party initiates a proceeding he must satisfy himself that he has a good and reasonable chance of offering sufficient and cogent evidence to convince the court of the merit and worthiness of the case. It is like a commander who set out for a war and who must reason and calculate within himself that given the man and armour he has would he over run the enemy. If the answer is in the negative, it will be idle exercise to talk of invasion which in all probability he and his army will be overwhelmed.
This is a case as in all civil cases where the appellant must succeed on the preponderance of evidence. The Respondent raised fundamental issues in his pleading which I am of the view the appellant ought to have filed a Reply. Failure to do that was part of death knell on the case of the appellant.
In the final result the appeal fails and is dismissed. The Judgment of the High Court is affirmed. There will be costs to the Respondent assessed at N4,000.00.
Other Citations: (1999)LCN/0507(CA)
