Alhaji Dabo Sambo & Anor V. Hajiya Amina Abubakar (1995)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
In the High Court of Justice of Kaduna State, the appellants herein as plaintiffs brought an action against Alhaji Abdu Abubakar, now deceased, as the defendant claiming the following reliefs in their Writ of Summons dated 30th January 1986 –
“The plaintiffs claim against the defendant, is for the sum of N131,815.00 (One hundred and thirty one thousand, eight hundred and fifteen naira) being the cost of 19 (nineteen) Peugeot vehicles of various brands supplied to the defendant on credit at his own request within the jurisdiction of this Honourable Court.”
PARTICULARS
On the 26th day of August 1982, the defendant requested the plaintiffs to supply and deliver the following units of Peugeot vehicles of various descriptions:-
8 x 505 SR, 6 x 305 SR and 5 x 504 family; all totalling 19 units. The aforesaid written request of the defendant, dated 26th August, 1982, was made in Kaduna, within the jurisdiction of this Honourable Court. The plaintiffs delivered the aforesaid vehicles as requested by the defendant, who had since failed, refused and or neglected to pay the said sum of N131,815.00 being the purchase price of the vehicles aforesaid.
WHEREUPON the plaintiffs claim against the defendant is for the sum of N131,815.00 plus 10% interest at court rate on same amount, from August 1982 up to date of judgment and thereafter until the whole debt aforesaid is liquidated by the defendant.”
Pleadings were filed and exchanged between the parties.
The case proceeded to trial before Akaahs J on further amended statement of claim and statement of defence respectively both filed with the leave of that court. Hearing in the case which commenced in September 1988 and which lasted for over two years finally ended with the judgment delivered by the learned trial Judge dismissing the entire claim of the plaintiffs on 7th November 1991. Part of the judgment of the trial court at pages 30 – 31 of the record reads:-
“….The plaintiffs knew all along that the transaction was with the NPN and not with the defendant even though the defendant issued Exhibits 4 and 5 to ensure that the cars were delivered to the NPN.
With these series of admissions as highlighted above, the logical conclusion that I must reach is that the 1st plaintiff knew he was dealing with NPN and not the defendant and despite the use of the word ‘compromise’ in exhibit 4, the plaintiff was aware that the defendant was not going to pay for the cars. One can only speculate from Exhibit12 which bore the same date as Exhibit 5 that the 1st plaintiff wanted to discuss with the defendant on the ways and means whereby the money for the vehicles could be raised. It is only Chief Akinloye who could have clarified the situation as to why he wanted the defendant to pay for the vehicles. In the absence of such an explanation, the defendant cannot be bound by the contents in Exhibit 1 and Exhibit 4 did not create such liability.”
The plaintiffs, now appellants in this appeal who were not happy with this decision of the trial court had appealed to this Court against it. Their notice of appeal dated 10th January 1992 contains 2 original grounds of appeal including the omnibus ground. An additional ground of appeal was later filed by the appellants with the leave of this Court on 14th October 1993. However, before this appeal came up for hearing, following the death of the respondent, on application of the appellants to this Court on 13/5/1993 his wife Hajiya Amina Abubakar was substituted as the respondent in place of her deceased husband Alhaji Abdu Abubakar. Both learned counsel to the parties had filed their respective briefs of argument which they expatiated in their oral argument before us. The appellants’ brief had identified the following 3 issues for determination which were also adopted in the respondent’s brief. The issues are:-
- “Whether Exhibit 4 which was written by the defendant to the plaintiffs constituted a firm commitment to pay as understood by the plaintiff.
- Whether it will be inequitable to allow the defendant to resile from the promises and/or actions to pay which the plaintiffs had relied on to their detriment.
- Whether the judgment is unreasonable having regard to the weight of evidence.”
For a better appreciation of the issues for determination in this appeal, I will set out briefly the case presented at the trial court by both parties.
According to the record of the trial court, the undisputed facts of this case are that in September 1982 the plaintiffs/appellants who were dealers with the Peugeot Automobiles Nigeria Limited Kaduna where the defendant/respondent was the Chairman, supplied the National Party of Nigeria, N.P.N. (now proscribed) with 19 different brands of Peugeot cars at the total cost of N131,814.00. The cars were earlier allocated to the plaintiffs with the assistance of the respondent as special allocation from Peugeot Automobiles (Nig.) Ltd. to enable the plaintiffs to meet up with the order for the vehicles by the defunct National Party of Nigeria N.P.N. Although all the 19 cars were duly supplied to the N.P.N which took delivery thereof, the N.P.N did not pay for the cars, nor did the plaintiffs/appellants also pay for the supply of the cars to them by the manufacturers Peugeot Automobile (Nigeria) Ltd. which opened a special account for the plaintiffs/appellants under which the cost of the cars could be settled by the plaintiffs/appellants as one of the dealers of the Company. Following the failure of the plaintiffs/appellants to settle this special account in payment of the 19 cars supplied, Peugeot Automobile (Nig.) Ltd. wrote a letter of demand to the plaintiffs/appellants asking for the payment of the cost of the cars in January 1985. At the time this demand for payment was made on the plaintiffs/appellants, the N.P.N to which the 19 cars were actually supplied was no longer in existence having been proscribed after the Military takeover in the country at the end of 1983. The appellants therefore responded to the demand for the payment by pointing out in separate letters to Peugeot Automobile (Nig.) Ltd. and the respondent that the respondent was supposed to have paid for the cars. All the same the plaintiffs/appellants settles their special account with Peugeot Automobile Nig. Ltd. by the payment of the demanded sum of N131,815.00 being the cost of the 19 cars. The plaintiffs/appellants then turned to the respondent and claimed the same amount from him in the action at the lower court that gave rise to this appeal alleging that the cars were supplied to the defunct N.P.N at the request of the respondent who was not only directed to pay for them but also promised to pay before the cars were supplied.
Taking into consideration that both issues 1 and 2 are predicated on the evidential value of the letter written to the 1st appellant by the respondent Exhibit 4, while the 3rd issue is also related to the weight of the evidence, coupled with the fact that the respondents brief had argued all the 3 issues together which shows their close relationship, I am of the view that there is only one issue for determination in this appeal. The issue is whether on the totality of the evidence adduced at the trial the appellants as plaintiffs has established their claim against the respondent to justify any finding by the trial court that he was liable to pay the sum of N131,815.00 being the cost of cars supplied to the defunct N.P.N. by the appellants.
The learned counsel to the appellants had submitted that relying on a number of cases including Royal Exchange Assurance Nigeria v. Aswani Textiles Industries Ltd. (1991) 2 NWLR (Pt.176) 639 on the interpretation of documents and statutes, taking into consideration the totality of the evidence on the transaction between the parties, the correct interpretation of the letter Exhibit 4 is that it was a firm commitment by the respondent to pay the appellants for the cars supplied. That taking into consideration the fact that the 1st plaintiff/appellant and the respondent has been friends since 1957, that when the defunct N.P.N needed cars the appellant then Chairman of PAN invitee the appellant who was a distributor to supply the cars to the NPN while a special account was opened for the appellant by PAN in respect of the cost of the cars which the respondent promised to settle, coupled with the finding of the lower court that it was the respondent who wrote the letter Exhibit 4, it would be inequitable to allow the respondent to resile from his promise which the appellant has relied upon in releasing the cars to the defunct NPN. In support of this argument learned counsel to the appellant relied on a number of cases including Trans Bridge Co Ltd. v. Survey Int. Ltd. (1986) 4 NWLR (Pt.37) 576 at 616. It was finally submitted for the appellant that having regard to the evidence on record particularly Exhibit 4 containing the promise of the respondent to pay for the cars, the decision of the lower court is not only unreasonable but also cannot be supported having regard to the weight of the evidence.
The respondent on the other hand had argued that there is nothing in Exhibit 4 to show that he had given any firm commitment to pay for the cars. That in the same vein Exhibit 4 on which the appellant also relied cannot attach any liability to the respondent to pay for the cars in the absence of either that the respondent was paid by the NPN for the cars or that the respondent had committed himself to NPN to pay for the cars. That although the 1st appellant claimed in his evidence that he released the cars to the NPN only because of Exhibit 4 and the promise of the respondent to pay for the cars, the fact that he gave conflicting evidence on why he did not release the cars to the NPN before 10/9/1982, rendered his evidence unreliable having regard to the decision of the Supreme Court in the case of Ayanwale v. Atanda (1988) NWLR (Pt.68) 22 at 36. It was further argued for the respondent that since the appellant had written to the NPN asking for payment of the cars without saying anything to the respondent in form of demand for payment from 10/9/82 until February 1985, coupled with the fact that the appellant did not intimate the respondent of the demand by PAN for the payment until after the appellant had effected the payment, show clearly that the appellants did not in fact release the cars to the NPN because of Exhibit
- Learned counsel finally submitted that although the appellants were relying on the evidence that the respondent was directed by the Chairman of the defunct NPN to pay for the cars and that the respondent at a meeting between the 1st appellant and one Mr. Marriot, the General Manager, Finance of PAN had also promises to organize settlement of the cost of the cars, the failure of the appellant to call the Chairman of the defunct NPN and Mr. Marriot to give evidence was fatal to the case of the appellant because these two witnesses were vital to the case. The cases of Onah v. The State (1985) 3 NWLR (Pt.12) 236 at 241 and Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 were cited in support of this argument.
As I have already indicated earlier in this judgment, the letter Exhibit 4 which was written by the respondent to the 1st appellant is the pivot or foundation upon which the case of the appellant was built at the trial court and indeed in this Court having regard to the grounds of appeal and the issues raised before us. While the appellants are saying that Exhibit 4 is firm commitment on the part of the respondent to pay the appellants the cost of the 19 cars supplied to the defunct NPN, the respondent is contending that there is no such firm commitment on the face of the document. Exhibit 4 which was written on the headed paper of Peugeot Automobile (Nig) Ltd. of which the respondent was the Chairman was addressed to the 1st appellant and signed by the respondent. The document dated 26th August 1982 reads:-
“26th August 1982
Alhaji Dabo Sambo
Turanku Motors,
16, Kankiya Street
Unguwan Sarkin Musulumi
Kaduna.
Dear Alhaji,
Attached papers. Please release the vehicles to the party. We meet either in Kaduna or Lagos to compromise.
(signed)
Naka Abdu ”
It is quite plain on the face of Exhibit 4 that while it clearly authorized the 1st appellant to whom it was addressed to release the vehicles to the party, it certainly does not say anything on the payment of the vehicles to be released. The fact that the parties were to meet in Lagos or Kaduna to compromise does not help the appellant either as the subject matter of the compromise was not stated. Therefore in the absence of the word “pay” or “payment” on Exhibit 4, the document cannot be interpreted to mean that it was a firm commitment on the part of the respondent to pay the appellants the cost of the cars supplied to the NPN. Although when a document is not clear a court of law is entitled to go outside it to find out and obtain the real intention of the parties – Amadi v. Thomas Alphin & Co. (1972) 1 ALL NLR (Pt.1) 409, the situation in the present case does not call for such action on Exhibit 4 which does not contain any word relating to payment or settlement. I am not unaware of the fact that where documents form part of a long drawn transaction, such as in the instant case, they should be interpreted not in isolation but in the context of the totality of the transaction in order to fully appreciate their legal purport and impact – Royal Exchange Assurance Nig. Ltd. v, Aswani Textiles Industries Ltd. (1991) 2 NWLR (Pt.176) 639 at 669, even if Exhibit 4 is interpreted against the background of the entire evidence including all the documents received in evidence, the fact that the respondent had given a firm promise to pay the appellants the cost of the vehicles supplied to the NPN cannot be read into it. It is indeed apparent from the evidence that Exhibit 4 was issued by the respondent after he had received Exhibit 1 from PW1. Of particular relevance is the part of Exhibit 1 written on 25/8/82 which reads-
“Chairman PAN
Allah Sabbinani,
Please authorize delivery of the ordered vehicles to Muh. Yaro Sokoto. You will also please pay the dealer on our behalf. This has been cleared with the National Chairman.
Suleiman Takuma
25/8/82 ”
Although the respondent was being asked by PW1 in Exhibit 1 not only to authorize the release of, the vehicles but also to pay the dealer, who was the appellant in this case, on behalf of the NPN to which the vehicles were supplied, the fact that Exhibit 1 did not mention where the money was coming from for the respondent to effect the payment had removed any element of commitment on the part of respondent in Exhibit 4 to pay the appellant. The case of the appellant was further compounded by his failure to call the Chairman of the defunct NPN to testify on the alleged mode of payment for the cars supplied by the appellant when even PW1 in his evidence could not explain why the respondent was being asked in Exhibit 1 to pay the dealer.
On whether estoppel by conduct applied in the present case against the respondent so that he could not be allowed to resile from his promise to pay for the cost of the cars, I am of the view that since the respondent is not a party to the sale transaction between the appellant and the NPN as the result of which the 19 cars were delivered to the NPN, his promise to the appellant if any in the absence of consideration, does not have any legal effect. A promise is an expression of an intention to do or forbear from some act. To have legal effect a promise must either be under seal, when it forms a covenant, or must form part of a contract, that 1s be made in consideration of something done or to be done. See Agoma v. Guinness (Nig) Ltd. (1985) 2 NWLR (Pt.380) 672 at 693-694. In the instant case therefore, since the claim of the appellants for the sum of N131,815.00 being cost of 19 Peugeot cars supplied to the defunct NPN by the appellants is not based or grounded in any contract between the appellants and the respondent, the claim cannot be sustained as correctly found by the learned trial Judge. Furthermore, even if there were a valid contract between the parties, it is settled law that a valid promise can only be a ground of a defence and cannot be a ground for a cause of action. Agoma v. Guinness (Nig) Ltd (supra) at page 693. The conduct of the 1st appellant in the present case in trying to use the alleged promise from the respondent to support his cause of action against the respondent is therefore not in keeping with the law which allows the appellant to use such a promise only as a defence in line with other defences in estoppel. In any case a promise between friends which is not backed up by any contractual obligation as in the present case cannot, in my view, give rise to any cause of action under our laws in this Country.
Finally, the question of whether the judgment of the lower court is unreasonable having regard to the evidence depends entirely on whether having regard to the evidence adduced by the appellants before the trial court, they were entitled to judgment. This question can easily be answered by simply examining the claim of the appellants in their writ of summons and the evidence adduced at the trial court. The claim of the appellants which I have earlier quoted in this judgment reads –
“The plaintiff claim against the defendant, is for the sum of N131,815.00 (one hundred and thirty one thousand, eight hundred and fifteen naira) being the cost of 19 (nineteen) Peugeot vehicles of various brands, supplied to the defendant on credit at his own request within the jurisdiction of this Hounourable Court.” (underlining mine)
There is no doubt that the words –
“supplied to the defendant on credit at his own request”
as contained in the appellants writ of summons quoted above, show that the claim of the appellants against the respondent was rooted in an allege contract between the parties which the appellants have failed woefully to establish by evidence in the course of the trial. This is because according to the evidence on record, the contract for the supply of the vehicles was not between the appellants and the respondents but between the appellants and the defunct NPN. Furthermore the evidence on record is to the effect that the vehicles were supplied to the defunct NPN and not to the respondent as claimed in the writ of summons. Clearly, the respondent who was not a party to the contract for the supply of the vehicles and who was not supplied with the vehicles on credit as alleged, nor received any of the vehicles supplied, the cost of which was being claimed from him by the appellants in the action the subject of this appeal, is under no obligation whatsoever to pay for the vehicles. Thus the dismissal by the learned trial Judge of the appellants’ claim which clearly was not proved against the respondent having regard to the circumstances of this case, cannot be describes as unreasonable nor against the weight of the evidence.
For the foregoing reasons this appeal FAILS AND IT IS HEREBY DISMISSED. The judgment of Akaahs J delivered on 7th November 1991 dismissing the appellants’ claim against the respondent is HEREBY AFFIRMED.
The respondent shall have one thousand naira (N1,000.00) costs against the appellants.
Other Citations: (1995)LCN/0227(CA)
