Alfa Ramoni Womiloju V. Madam Abosede Kiki & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Ota, Ogun State delivered on the 6th of June 2003. Briefly by a Writ of Summons and Statement of Claim dated the 16th of March 1999, 1st Respondent claimed against the Appellant at the lower Court in the sum of N486,602.00 (Four hundred and eighty six thousand, six hundred and two naira only) being the two instalmental payments of N243,301.00 (Two hundred and forty three thousand, three hundred and one naira only) each due for payment on 9/12/97 and 9/12/98 respectively as per Promissory Agreement for the settlement of a total debt of N729,903.00 (Seven hundred and twenty nine thousand, nine hundred and three naira only) entered into between the 1st Respondent and the Appellant on 9/12/96. The Appellant refused and or neglected to pay despite repeated demands. 2nd Respondent claimed against the Appellant the sum of N400,000.00 (Four hundred thousand naira only) being the two instalmental payments of N200,000.00 each due for payments on 9/12/97 and 9/12/98 respectively as per Promissory Agreement for the settlement of a total debt of N515,000.00 (Five hundred and fifteen thousand naira only) entered into between the 2nd Respondent and the Appellant on 9/12/96. The Appellant refused and or neglected to pay despite repeated demands.
1st Respondent sought the intervention of the Ado-ado town Council of Chiefs to recover the money from the Appellant. Appellant sought permission to settle the indebtedness instalmentally. He executed a Promissory Agreement dated 9th December, 1996 in favour of the Respondents for the payment of the aforesaid debts. When the Appellant failed to settle the indebtedness this action was filed at the High Court of Justice, Ogun State to recover the debt.
1st Respondent who was the 1st Plaintiff at the trial Court called four witnesses and tendered exhibits A-E while the Appellant who was the Defendant at the trial court called two witnesses and tendered Exhibits F-G. The trial Court gave judgment to the 1st Respondent in the sum of N486,602.00 as stated in Exhibit A. The trial Court dismissed the 2nd Respondent’s case who was the 2nd Plaintiff at the lower court.
The Appellant being dissatisfied with the judgment appealed to this court. With the leave of this Court, Appellant filed on the 13th of November, 2006 a notice of appeal containing 3 three grounds of appeal. Appellant’s brief was filed on the 18th of March, 2008. 1st Respondent’s brief of argument was filed on the 29th of April 2008. Appellant also filed a reply brief on the 11th of June 2008. At the hearing of the appeal, learned Counsel to the parties adopted their respective briefs and relied on the arguments contained therein.
Learned Counsel for the 1st Respondent informed the Court that the appeal is basically between the Appellant and the 1st Respondent.
Learned Counsel for the Appellant distilled two issues for determination from the three grounds as follows:
(1) Whether there was an enforceable agreement between the Appellant and the 1st Respondent as evidenced by Exhibit A
(2) Whether there was any evidence in support of the judgment of the trial Court.
Learned Senior Counsel for the 1st Respondent formulated one issue thus:
Whether the 1st Respondent’s claim was not made out against the Appellant to entitle her to the judgment sum.
The appeal will be considered on the two issues formulated by the Appellant’s Counsel.On issue one Learned Counsel for the Appellant submitted that Exhibit A is not a customary arbitral award. He referred to the case of EHOCHE VS. IJEGWA (2003) F.W.L.R part 154 pages 587 at 596- 597. He went further to state that Exhibit A was not a judgment of terms of settlement before a Court of law or an arbitral tribunal. He cited AFEGBAI VS. A.G. EDO STATE (2001) F.W.L.R part 69 at page 1325 Exhibit A was not a contract between the parties as it does not create any right in favour of any of the parties. Since there is no consideration flowing between the parties, the exhibit does not amount to a valid and enforceable contract.
Learned Counsel for the Appellant argued that the onus is on the 1st Respondent to prove that she owed Jonas Petroleum Plc, that the debt arose from the accounts of the Appellant and since she was the one who alleged that the document was shown to her by Jonas Petroleum official, she ought to have either called the official who showed her the document or produce the document at the trial. In the absence of such evidence, learned Counsel for the Appellant submits that 1st Respondent has not discharged the burden on her. He referred to the case of KARA VS. WASSA (2001) F.W.L.R part 78 page 1191 at 1206. He submitted further that Appellant was not under any threat of litigation such that exhibit A would have amounted to a forbearance to sue. Since Exhibit A was neither a contract, consent judgment nor a customary arbitral award, the trial Judge ought not to have relied on it to give judgment in favour of the 1st Respondent in the sum of N486,602.00 (four hundred and eighty six thousand, six hundred and two naira). He argued that the test for admissibility of documents under the Evidence Act has nothing to do with the enforceability of the terms contained therein. He contended that Appellant was intimidated and forced to sign Exhibit A. Learned Counsel urged the Court to resolve issue one in favour of the Appellant.
Learned Senior Counsel for the 1st Respondent on issue one submits that Exhibit A is an admissible document which the Appellant never objected to at the trial. He did not challenge the document at the point of tendering that it was executed under undue influence or duress. Learned Senior Counsel submits that Appellant cannot at this stage claim that it is not enforceable. He buttressed his argument with the provision of Section 132 of the Evidence Act which states:
“When any judgment of any Court or any other judicial or official proceedings or any contract has been grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
Learned Senior Counsel submits that Exhibit A is enforceable. He referred to the case of ADECENTRO (NIG) LTD VS. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2005) 15 N.W.L.R part 948 pages 290 at 294. He submitted that Appellant’s Counsel submission is an afterthought. He urged the Court to hold that the 1st Respondent need not dissipate energy on the proof of Exhibit A since issues were never joined on same. He cited ODJEGBA VS. ODJEGBA (2004) 2 N.W.L.R part 858 page 566 at S72.
I have carefully gone through the record of appeal and the briefs of the learned Counsel and learned silk respectively to the parties and I observed that the facts were founded upon simple debt duly acknowledged by the execution of Exhibit A titled “Promissory Agreement”. The writ of summons and statements of claim at pages 4 – 8 of the record of appeal show a reasonable cause of action which gives the 1st Respondent a right to a relief. See the case of OSOBOJA VS. AMUDA (1992) 7 S.C.N.J page 317 at 326 Exhibit A is an acknowledgment of debt or as was described on the said exhibit. The facts given rise to the debt are well stated in the evidence of the 1st Respondent and her witnesses at the lower Court during the trial. A civil case is decided on preponderance of evidence. The decision having to be on the balance of probability. In determining which is heavier, the Judge will naturally have regard to whether the evidence is admissible, relevant, credible, conclusive or more probable than that adduced by the other party. See the cases of MOGAJI VS. ODOFIN (1978) 3 – 4 S.C at 91; AKANNI VS. ODEJIDE (2004) ALL F.W.L.R part 218 page 827 at 858 paras E – H.
The onus placed on the 1st Respondent is to proof her case on the balance of probabilities. The Appellant did not challenge Exhibit A at the point of tendering that he never executed the agreement nor that it was made under undue influence or duress. The Legal Practitioner Mr. Matthew Adeleye Ojo who prepared Exhibit A testified that the document was prepared with the consent and knowledge of the Appellant, signed by the parties and their witnesses see pages 26-28 of the record of appeal. I hold that Exhibit A binds both parties and neither of the parties can now raise any reasonable argument to make the agreement unenforceable. See the case of AGBARAH VS. MIMRA (2008) ALL F.W.L.R part 409 page 559 at 586 paras A – B where it says:
“If parties enter into an agreement, they are bound by its terms and one of the parties or the Court cannot legally read into the agreement the terms on which the parties have not agreed.”
As security for the debt, Appellant provided land Agreement, Survey Plan and approval building plan which were tendered as Exhibits B, C & D. In the case of ADECENTRO (NIG) LTD VS. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE supra the Supreme Court held as follows:
“By virtue of Section 132 (1) of the Evidence act, oral evidence is not admissible to vary, contradict, alter or add to a written document. Thus where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add, very, contradict or alter the terms of the written document.”
Appellant admitted being the supervisor of the 1st Respondent’s Petrol Station. He admitted taking money from the 1st Respondent. He identified his signature on Exhibit A. The only witness for the Appellant at the trial court confirmed having attended two meetings to find out how the Appellant would be able to repay the money owed to the 1st Respondent. See page 38 lines 2-4 of the record where the witness Mr. Isaac Ajegbe stated thus:
“I remember that the purpose of the meeting was to find out how the Defendant would refund the money owed to the Plaintiff.”
The Appellant having signed Exhibit A cannot turn round to say that he signed under duress or undue influence. He did not object to the tendering of the document. The parties are clearly bound by the provisions of Exhibit A without any subtraction or addition. The Court has no power to rewrite the agreement. See AFRO TECHNICAL SERVICES (NIG) LTD VS. MIA &. SONS LTD (2000) 12 S.C Part 11 page 1 at page 15 per Kutigi J.S.C as he then was I hold that Exhibit A is admissible and enforceable. Issue one is hereby resolved against the Appellant.
On issue two, learned Counsel for the Appellant submitted that the evidence placed before the court did not justify the finding of the trial Judge when he said at page 52 of the record of proceedings as follows:
“The defendant under cross-examination hereby stopped short of admitting the 1st Plaintiff’s claim therein”. He admitted having at the material time being the supervisor of the 1st Plaintiff’s petrol station. He admitted taking money from the 1st Plaintiff. He identified his hand writing on Exhibit “F & H” as well as his signature on Exhibit “H”. His only witness confirmed having attended two meetings convened to find out how the defendant would be able to repay the money to the 1st Plaintiff.
The evidence of the witnesses in this case backed by Exhibit A leaves this Court in no doubt that the 1st Plaintiff’s claims have been proved by preponderance of evidence.”
He submitted that the standard of proof applied is unjustified. He argued that this is an allegation of commission of crime and therefore it must be proved beyond reasonable doubts and not on the balance of probabilities. He urged the Court to allow the appeal.
Learned Senior Counsel for the 1st Respondent submitted that from the totality of the oral and documentary evidence before the Court, the 1st Respondent had satisfactorily proved her case thereby making her to be entitled to the said reliefs as granted by the trial Court and the onus of proving otherwise has now shifted to the Appellant. He went further to argue that non-calling of staff of Jonas Petroleum by the 1st Respondent as alleged by the Appellant is not fatal to her case. He urged the Court to discountenance the Appellant’s submission thereof and dismiss the appeal as lacking in merit.
It is true that criminal allegation contained in civil proceedings must be strictly proved. This is by virtue of Section 138(1) of the Evidence Act. The application of Section 138(1) of the Evidence Act to civil proceedings depends on the contents of the pleadings in a particular case and each case should be decided on its pleadings. See NWOBODO VS. ONOH & OTHERS (1984) 1 S.C at page 1.
In the instant case, the real subject matter of litigation at the lower Court was the non-fulfillment of the Appellant’s pledge to pay the money owed to the 1st Respondent despite repeated demands. Appellant did not challenge Exhibit A when it was tendered at the trial. The Court admitted it as an exhibit. It therefore binds both parties.
Exhibit A is therefore binding on the Appellant and the 1st Respondent.
In the case of AGBI VS. OGBEH (2006) 11 N.W.L.R part 990 pages 65 at 131 para B, the Supreme Court had this to say: “When the Plaintiff or Prosecution has made out a prima facie case, the onus of proof may shift in civil matter or in a criminal case where an explanation from the accused person may be required or expected.”
The onus of proof has been shifted to the Appellant since 1st Respondent has established a prima facie case. It is even too late in the day for the Appellant to claim that Exhibit A the “Promissory Agreement” is not enforceable. The best evidence of the contents of a document is the production of the document itself. It follows therefore that oral evidence is inadmissible to add to or subtract from or contradict the contents of a document. See OJOH VS KAMALU (2006) ALL F.W.L.R part 297 page 978 at 1021 paras G – H.
On the Appellant’s submission that some witnesses were not called by the 1st Respondent to prove her case. In my view truth is not discovered by a majority vote. A case may therefore be proved by one witness. Subject to certain exceptions, evidence does not need to be corroborated for it to be accepted by the court. The Court can act on the evidence of one single witness if that witness can be believed given all the surrounding circumstances. See Section 179(1) of the Evidence Act. See also OKOCHI VS. ANIMKWOI (2004) All F.W.L.R part 200 pages 1524 at 1538 paras F – G where it was held that:
“Belief or disbelief of evidence of parties does not depend upon the number of witnesses who gave evidence in court. It is a probative matter in our law of evidence.”
Also in AGBI VS. OGBEH (2006) 11 N.W.L.R part 990 page 65 at page 125 para G per Kutigi J.S.C. (as he then was) held as follows: “The general rule is that no particular number of witnesses is required for proof of any fault unless expressly prescribed by law. It follows therefore that in civil cases, a Plaintiff can establish his case on the evidence of a single witness without a confirmation by the testimony of another person.”
The fact that 1st Respondent did not call any of the staff of Jonas Petroleum Plc or non tendering of document shown to the 1st Respondent is not fatal since the Appellant acknowledged the debt in Exhibit A.
The trial Court had evaluated the evidence of the witnesses and found the 1st Respondent’s evidence and that of her witnesses’ credible. At page 52 lines 18 – 22 of the record, the learned trial Judge had this to say:
“I believe the evidence of the 1st Plaintiff throughout her testimony, she struck me as a witness of truth and someone who had been cheated but who was determined to employ due process to have her just dues. Her evidence was amply corroborated by those of the 2nd – 4th Plaintiff’s witnesses in every material particular.”
In the case of YAKI VS. STATE (2008) ALL F.W.L.R part 440 page 618 at 654 para D Chukwuma Eneh J.S.C. had this to say:
“The trial Court who sees and hears the witnesses is in a better position than the Supreme Court to assess the credibility of the witnesses. The Supreme Court cannot say it is wrong in accepting the evidence of prosecution witnesses in preference to the evidence of the defence.” See also ADI VS. QUEEN 14 W.A.C.A at 6.
I have to base my considerations upon the legal evidence before the trial Court and I so based it. I see no ground to differ. I too so hold since there is evidence on record to support the findings and conclusions of the trial court. See CADBURY (NIG.) LTD VS. MAGAJI (2004) 23 W.R.N at 54 and EBOADE VS. ATOMESIN (1997) 5 N.W.L.R part 506 at 590. Issue two is resolved against the Appellant.
Since the appeal is basically between the Appellant and the 1st Respondent, the name of the 2nd Respondent is hereby struck out in the appeal.
Finally this appeal lacks merit and it is hereby dismissed. The cost of N30,000.00 is hereby awarded against the Appellant.
Other Citations: (2009)LCN/3303(CA)
