Abdullahi Pate & Anor. V. Mohammed Gali (2001)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE J.C.A,

The respondent in this appeal commenced proceedings in the Upper Area Court Zaria against the appellant for the recovery from the appellant, the sum of N48,000. The said sum, the Respondent as plaintiff alleged is for payment for 120 tonnes of fertilizer, which he sold to the Appellant as defendant sometime, at a time not stated. The Upper Area Court took evidence in the suit and struck out same, saying it had no jurisdiction. The plaintiff/appellant was not satisfied with the observation made by the court in the Upper Area Court, and he appealed to the High Court Kaduna State which court takes appeal from the Upper Area Court. In the High Court, the appellate court granted leave to the appellant to file and argue additional grounds of appeal. In the appellate court Coram Mukaddas and A.D. Yahaya J.J. The grounds of appeal filed were considered after the addresses of both counsel.

This is how the court ruled:

“We agree with Mr. A.Z. Yusuf that this appeal has merit and should succeed. The plaintiff in his statement of claim to the trial court had claimed for 120 tons of fertilizer supplied to the defendant at the cost of N48.000.00. He therefore prayed for the sum of N48.000.00 to be paid to him. The defendant in his statement of defence at the trial court did not deny that he received fertilizer worth N48.000.00. He talked about two lorry loads, but there is no evidence of how many times 2 lorry loads would carry. Since the defendant did not deny in law he is deemed to have accepted the claim of N48.000.00 by the plaintiff. etc, etc. We therefore hold that all the grounds of appeal have merit and they succeed the appeal is allowed. We think this ls not a proper case for retrial. etc. etc. There is also failure to discharge the burden of payment of the admitted sum etc. etc. In place of the decision of the Upper Area Court, since there is preponderance of evidence and admission, the plaintiff has proved his case and we hereby order the respondent to pay the admitted sum of N48,000.00 cost of the fertilizer he received to the plaintiff/appellant.”

The Defendant/Respondent in the Appellate High Court was dissatisfied with the judgment of the High Court, he filed in the court below four grounds of appeal, and formulated for determination in this court four issues they are:

(1) “Whether the learned Justices were right in holding that the appellant had admitted the Respondents claim, formulated from ground 2 of the appeal.

(2) “Were the learned Justices right in ordering the payment of N48,000.00 to the Respondent where there is no evidence on the record showing that 120 tonnes of fertilizer or 2 lorry loads of fertilizer worth N48.000.00 ground 3.

(3) “Was the transaction between the appellant and the Respondent not tainted with illegality and therefore unenforceable in law.

(4) “Whether the judgment of the learned Justices was not against the weight of evidence ground 1.”

The respondent formulated three issues namely:

(a) “Can a party who voluntarily submit to judgment argue an appeal against his own interest in favour and support of opponents appeal, clearly, implicitly and unequivocally concedes an appeal to his opponent (whether tactically or otherwise) appeal against any judgment given upon the grounds conceded submitted to or argued by him? Put in another way, can a party duly represented by a counsel be allowed to approbate and reprobate on an appeal conceded by him?

(b) Whether or not the transaction between the parties was tainted by illegality”

(c) Whether or not the respondent was entitled to judgment having regard to the claim by the plaintiff, evidence before the trial court, as well as the admission by the appellant. Alternatively was the High Court right to enter judgment in favour of the respondent having regards to the weight of evidence”?

I wish in this appeal to start with a consideration of issue (a) in the respondents issue for determination. The respondent has submitted that the issue is against the entire appeal and urged the court to dismiss the entire appeal for incompetence. The issue so formulated by the respondent was the reason why the Appellant filed a reply brief. The said reply brief was deemed filed on 12/12/00, and it is part of the courts proceedings. In the reply brief, the Appellant submitted that issue (a) of the Respondent was in fact and substantially a preliminary objection to the entire appeal of the appellant but that preliminary objection failed to comply with the rules of the court of appeal. For instance the Respondent/appellant submitted, did not file a notice of preliminary objection under order 3, rule 15. The appellant submits further that the said issue (a) of the Respondent does not derive from the grounds of appeal filed by the appellant. He cited OSHOBA VS. AMUDA (1992) 6 NWLR Pt.250 at 690. Appellant urged the court to strike out the issue.

On this issue, (a) of the Respondents brief, the immediate observation is that the issue (a) is verbose, and prolix. The averments made therein namely that the Appellant had admitted the claim in the courts below, when the appellant has profusely denied this, makes the issue argumentative. Therefore as the fact really is, the appellant deny that he admitted the Respondents claim, the issue becomes, not an issue but an argument. It is settled practice that an issue formulated for determination of an appeal should not be prolix and should constitute a challenge to the rationes of the court EGBE VS. ALHAJI (1990) 11 NWLR Pt.128 at 340 while arguments may be advanced on the issue for determination, the issue itself should be intelligible and not per se be an argument.

Respondent’s issue (a) does not derive from any of the grounds of appeal filed by the Appellant. A plethora of authorities exist which decide that an issue in an appeal which does not derive from a ground of appeal is deemed to create no issue and it is deemed abandoned UAC OF NIGERIA VS. FASHEYITAN & ANR. LTD. (1989)7 KINGS LAW REPORT PER BELGORE JSC

(ii) ODIFE & ORS. VS. GODFREY ANIENIEKA (1992) 7 NWLR (pt.257) at 25 & 42

(iii) ANIE & ORS. VS. UZOIKA & ORS. (1993) 8 NWLR (Pt.309) 1 & 17

(iv) ODUBEKO VS. FOWLER (1993) 7 NWLR (Pt.308) 653

Since the issue formulated by the Respondent does not arise or derive from any of the grounds of appeal filed by the appellant, it is deemed abandoned, and not competent. It should be struck out. It is struck out.

Issue 3 of the appellant postulates the same argument as issue (b) of the Respondents brief and will be considered together. In the appellants brief, issue 3 asked “was the transaction between the appellant and Respondent not tainted with illegality and therefore unenforceable in law?” and the respondents issue (b) asked “whether or not the transaction between the parties was tainted with illegality.” The appellant said that the learned Justices of the appellate High Court remarked that the transaction of sale between the respondent and the appellant may have arisen from the sale of stolen fertilizer, since the respondent was once a subject of investigation by his erstwhile employer for the theft of fertilizer. If that was the case, the appellant submitted that the transaction of sale of fertilizer to himself by the respondent is not actionable by the respondent, even if it is true that he did not pay, which he denied. The appellant therefore relied on the maxim “ex turpi causa oritur non actio.” The Appellant therefore urged the court to set aside the judgment of the court below. i.e High Court decision and dismiss the plaintiff’s claim i.e Respondents claim.

The Respondent denied that the transaction of sale by the Respondent with the Appellant is affected by any illegality. He said the defendant/appellant herein has testified in the court below that the transaction between himself and the plaintiff/Respondent took place in May, 1989, whereas the subject of enquiry to which the plaintiff/Respondent was a candidate by his employer took place in 1990. The respondent submitted that the fertilizer sold to the appellant was not the one for which the respondent was sent to an enquiry; as the sale to appellant took place before the enquiry. The Respondent submitted further that where there is an allegation of the committal of a crime in a civil proceedings, such crime should be proved beyond reasonable doubt. He referred to section 138 Evidence Act and to NWOBODO VS. ONOH (1984) 1 SCNLR 1 at 17. 27-28. He urged the court to dismiss the appellant’s issue 3, thereon in this appeal.

It is a trite principle of law, that any crime alleged even in a civil proceedings must be proved beyond reasonable doubt. OKOTIE VS. OLUGROR (1995) 5 SCNJ 217 at 230-231.

In the instant case there is no proof of any kind to show that the fertilizer sold by the Respondent to the Appellant was stolen, and what is more, at no time did the appellant in his brief raise or plead the issue of crime against the respondent. The rule of court and practice require that such an issue should be an issue of trial on which the court below should if properly raised before it would have ruled on. The appellant in his brief said the appellate judge raised the issue as to the illegality of the transaction. It is clear to me that the passing remark of the judge in the trial does not make the issue one of the issues of contest between the parties, and there was no ruling of court on the issue of illegality. The judex is not a party to the proceedings, and as the judges did not make any ruling on the issue of alleged taint of the transaction with criminality as contained in ground 4 in which issue 3 is filed, the issue on appeal, cannot therefore be entertained without more. In actual fact therefore as the issue of alleged criminality of the transaction does not attract any ruling of the court below; It is a fresh issue on appeal for which the appellant did not obtain the leave of the court as required by the rules of this court see: EJIOFODOMI VS. OKONKWO (1982) 11 SC. 74 at 93 – 98 or (1982) Vol. 1 NSCC at p.422 (11) ADEGOKE VS. ADESANYA (1989) 3 NWLR (Pt.109) 250.

Ground 4 of the ground of appeal being on an issue not canvassed by the parties in the court below is a fresh issue which requires the leave of court before it can be heard in the court of appeal. The appellant did not obtain such leave, the said ground of the notice of appeal filed on 2/4/96 is struck out.

The respondent formulated issue C as follows:

“Whether or not the respondent was entitled to judgment having regards to the claim by the plaintiff’s evidence before the trial court as well as the admission by the appellant”, he said also, “Alternatively was the High Court right to enter judgment in favour of the respondent having regards to the weight of evidence?”

However the respondent’s issue C is viewed, it seems to me to be relevant in material particulars with the appellants issue (1) which asked “whether the learned Justices were right in holding that the appellants had admitted the Respondents claim.” The congruence in the two issues, of the appellants issue one, and the respondents issue (c) when it is seen that the judgment of the court below was awarded to the Respondent because the court below held that the appellant had admitted the claim of the plaintiff/Respondent, brings into consideration the whole facet of the appeal. On the issue to be determined on both issues therefore is this. Was the court below right when it held that the defendant now appellant has admitted the plaintiff’s claim?, and therefore awarded judgment in favour of the plaintiff respondent? To determine the issue the testimony of the parties before the court below have to be considered. On his writ of summons in the Upper Area Court Zaria the plaintiff/Respondent claimed from the Defendant/Appellant, the sum of N48,000.00 as cost of 120 tons of fertilizer sold by the plaintiff/Respondent to the Defendant/Appellant. Except for a chance reference by the defendant in his testimony to sometime in 1989, no date was given by the plaintiff/Respondent of when the transaction of sale between them took place. The 1st defendant/appellant in his testimony at page 2, lines 19 – 22 deposed that he received (at a time not stated,) 2 lorry loads of fertilizer from the plaintiff? and paid for it the sum of N23,400.00. It is the submission of the appellants that the fertilizer to which he deposed that he received, is not the same as is being claimed by the Respondent. The Appellant submitted that the onus is on the plaintiff to make a proof of the supply in the court below by evidence in proof of his claim for N48,000.00 for the supply of fertilizer of 120 tons. The appellant said the plaintiff/Respondent had the onus to show that 120 tons of fertilizer is the same as is contained in the two lorry loads of fertilizer which he said he received.

He submitted that once the defendant now appellant had denied that the two lorry loads he received is not the same as the 120 tons of N48,000.00 claimed by the plaintiff, the onus is on the plaintiff/Respondent to prove it. The Appellant said the admission that he received 2 lorry loads of fertilizer does not constitute an admission that he received from the respondent 120 tons of fertilizer at a cost of N48,000.00. The Appellant submitted therefore that the lower appellate court was in error of law to conclude that he had admitted the plaintiff’s claim for N48,000.00.

It is important to observe here that the Respondent referred in his brief. to his issues as a, b, c. but proceeded in the body of the brief to rechristian the same issues as number 1,2,3, thus causing a confusion of his issues with the appellants numbered issues which preferred the use of numerals, and maintained the same numbering throughout in the appellants brief. It is important for counsel to maintain in their brief a continues form of identification of their issue to avoid confusion. In this judgment therefore issue C. of the early part of the respondents brief is the same issue the respondent also referred to as issue 3 in the latter part of his brief.

In the respondents issue C or 3 he submitted that the Appellant have admitted the claim of the plaintiff/Respondent, when the defendant appellant admitted the receipt of two lorry loads of fertilizer for which the appellant claimed to have paid the sum of =N=23.400.00. The Respondent said the Appellant in the court below did not specifically deny that he did not receive the 120 tons of fertilizer costing the sum of =N=48.000.00. The respondent submitted that the onus is on the defendant/appellant, as defendant to prove that he did not receive the other 60 tons of fertilizer once the plaintiff/respondent had shown that the respondent sent to Appellant 120 tonnes of fertilizer, and asked;

“is there no irrefutable presumption of law that having conceded to have received 60 tons of fertilizer by agreeing with the evidence of PW2, and as he is not contesting the plaintiffs claim that 120 tonnes is valued at =N=48,000.00. That there has been a clear proof of at least half the sum of money =N=24,000.00.”, and therefore for the balance?”

The question posed by the respondent above on which the respondent assumed proof of the receipt by the Appellant of 120 tonnes of fertilizer at =N=48,000.00 is unknown to our law. Certainly the admission of liability by defendant for half the sum of plaintiff’s claim is not proof of the whole claim by the plaintiff. The rule of proof known to law in a civil claim is proof on a balance of probabilities by the plaintiff. The plaintiff has in the suit the onus probandi see ABIODUN VS. ADERIN (1962) 1 ALL NLR 550. What is the probabilities in this appeal of proof by this claim? It is that the first onus of proof of the claim is on the plaintiff, ABIODUN VS. ADERIN (1962) 1 ALL NLR 550 see section 138 of the Evidence Act. It is upon that first proof that the Defendant needs to respond.

In the instant appeal, the defendant has denied the entire claim; there is therefore no proof of the claim by the plaintiff. Proof of half of the claim by the plaintiff cannot be said to be proof of the whole if the defendant denies any part of the plaintiff’s claim. The onus of proof reverts to the person who will lose if no further evidence is adduced. The plaintiff therefore has the burden of evidential proof. See: ONYEMAH VS. AMAH (1988) 1 NWLR Pt.73, 772.

In the instant case between the plaintiff/Respondent and the Defendant/Appellant, the plaintiff will lose if no further evidence is adduced in court since he desired the claim and took the case to court. There is no onus on the defendant to deny other than to say. “I received 2 lorry loads of fertilizer not 120 tons.” The implication of this is that he did not receive 120 tons of fertilizer, the plaintiff must prove it. As the defendant/appellant has not acknowledged the receipt of 120 tons of fertilizer from the Respondent, there can be no presumption in law, that the Defendant/Appellant had received 120 tonnes of fertilizer claimed by the plaintiff/Respondent. The onus of proof is on the plaintiff/Respondent to establish his claim on a balance of probabilities or fail. In this case he failed.

Generally an appellate court who was not opportuned to see the witnesses does not lightly interfere with issue of facts and substitute the decision of the lower court with his own. See: EBBA VS. OGODO (1984) 1 SCNLR 372.

In the instant case when the decision of the court below was not arrived at by the established rule of evidence, the proper course to take is to review the evidence on the record to arrive at a just decision according to law. On the facts stated in this appeal, the plaintiff in the Upper Area Court who appealed to the High Court against which decision the defendant/appellant has appealed now, the Respondent in this appeal has failed to adduce further evidence, when the appellant, the defendant in Upper Area Court said he received two lorry loads of fertilizer not 120 tons of fertilizer. The respondent now should have failed on the facts and should not have been awarded judgment in the court below and in the court.

In the result the court below was in error of law to assume, and presume the liability of the defendant/appellant only on the basis of the acceptance by the appellant of receipt of 2 lorry loads of fertilizer from the plaintiff/Respondent. It is infact the interpretation of the plaintiff/Respondent that two lorry loads of fertilizer is 60 tonnes, and so half of the 120 lorry of fertilizer claimed by the plaintiff. There was no such evidence before the court. There are clear omissions in the facts of the case, but these cannot now be supplied at the stage on appeal. There is for instance no specific evidence by the Defendant that the 2 lorry loads of fertilizer were supplied to the defendant by the plaintiff at a stated time. The court below failed to consider the issues for the purpose of the law of limitation of action.

On the facts, as they stand in the court below, the appellant in that court and the respondent in this appeal would have lost in the Upper Area Court if no further evidence was adduced and none was adduced and the plaintiff’s claim in the court below should have failed. The plaintiff/Respondent claim for N48,000.00 fails, and this issue is resolved in favour of the appellant.

In sum, the simple answer is yes to the enquiry of the appellant when he asked, “whether the judgment of the learned Justices is against the weight of evidence.” In the face of the rules of proof of fact, as prescribed by the rules of evidence, in the Evidence Act, Cap.112 Laws of the Federation of Nigeria, it is an error of law to hold that an admission by defendant of part or half of a claim of the plaintiff in a civil claim in a court of law is proof of all the claim. Furthermore a claim in special damages such as this must be proved strictly. The plaintiff in the court below who is the respondent in these proceedings on appeal has failed in the court below to prove his claim on a balance of probabilities, his claim should fail. The appeal succeeds.

The court below was in error in law and the judgment of that court delivered on 14/10/1993 is set aside, in its place, the claim of the plaintiff/respondents who was the appellant in the High Court below is dismissed. There will be order as to costs for N3.000.00.

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Other Citations: (2001)LCN/0967(CA)