Edward Owhoeri & Ors V. Willian Oghre Ikanone (1993)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an Appeal against a judgment of Odita, J. of the High Court of former Bendel State, sitting at Warri in Suit No. W/1/86 delivered on 19th August, 1988, wherein he entered judgment for the Plaintiff against the Defendants, jointly and severally in the sum of N364,000.00, being money paid by the Plaintiff to the Defendants for a consideration that totally failed, plus interest at the rate of 15% p.a. on the said sum to the date of judgment, plus costs of N700.00
At the trial court, the claim of the Plaintiff against the Defendants was worded as follows:-
‘The Plaintiff’s claim against the Defendants, jointly and/or severally, is for money paid by the Plaintiff to the Defendants for a consideration which has failed.
By an oral agreement entered into in October, 1983, and made between Plaintiff and the Defendants, the Plaintiff agreed to buy and Defendants agreed to sell imported bags of rice, bags of cements, bales of stock fish etc. delivery to take place immediately on payment of the agreed price in October, 1983.
In scrupulous compliance with the agreement aforesaid, Plaintiff paid to the Defendants the sum of N364,000 (Three Hundred and Sixty-four Thousand Naira) in October 1983 in the jurisdiction of this Honourable Court but the Defendants have jointly and severally failed, refused and/or omitted to deliver the agreed items immediately in October, 1983 or at all in flagrant breach of the said agreement despite repeated demands.
Wherefore Plaintiff claims the said sum of N364,000.00 from the Defendants jointly and severally, damages and interest.”
Details of the exact quantity and prices of goods agreed to be sold were later given in the statement of claim as follows:-
(a) 5,000 Bags of rice at N35.00 per bag = N175,000.00
(b) 500 Bags of Stockfish at N200.00 per bag = 100,000.00
(c) 500 Bags of salt at N30.00 per bag = 15,000.00
(d) 100 Bags of sugar at N140.00 per bag = 14,000.00
(e) 20,000 Bags of cement at N3.00 per bag = 60,000.00
Total = N364,000.00
At the trial evidence was led by the Plaintiff supported by one George Ejovi (P.W.2), that following information received by the Plaintiff from P.W.2, a former employee of his, that the Defendants have the above goods to sell, the Plaintiff had travelled from Sapele to Warri to meet the Defendants. There the Defendants confirmed that they had the said goods to sell. The Plaintiff insisted that he would see the goods physically before negotiating for them, whereupon the Defendants and two others escorted Plaintiff and his entourage to Warri port and showed them the goods stocked in a ship. On return to the house of 1st Defendant, the Plaintiff and his colleagues were further shown the shipping documents relating to the goods, whereupon the Plaintiff believed that the Defendants actually had the said goods for sale. Negotiation was then commenced at the end of which the 1st Defendant agreed to sell the above goods to the Plaintiff at the total price of N364,000.00.
Plaintiff then returned to Sapele to raise the money and come back for the goods. In due course the Plaintiff successfully raised the money from his Banks, friends and relations. He then returned to Warri in company of P.W.2, and Godfrey Onakpogeya and paid the money to 1st Defendant and his colleagues in their presence. After collecting the money, the Defendants left the Plaintiff and his colleagues in the house and said they were going to the Warri port to clear the goods. Plaintiff and his colleagues waited in 1st Defendant’s house till 12 midnight, yet they did not come back. Plaintiff and his colleagues then left to find some where to sleep. Early on the following morning Plaintiff and his colleagues were back in 1st Defendant’s house, where they happily met 1st Defendant and his colleagues waiting in the parlour. On being asked by Plaintiff, why they did not return the previous night, the 1st Defendant rose to his feet and quickly locked the door and put the key in his pocket. Each of the Defendants then pulled out one weapon or the other. According to Plaintiff’s evidence, 1st Defendant was wielding a sword, 2nd Defendant wielded a small axe, while one Kingsley who was also present was carrying a bottle containing acid. With these weapons being brandished menacingly at the Plaintiff and his colleagues, the 1st Defendant and his colleagues were easily able to intimidate the Plaintiff and his colleagues to do what they wanted done as follows:- First, the Plaintiff and his colleagues were ordered to move into another part of the house where a juju shrine was uncovered. Plaintiff and his colleagues were then ordered to sit on the floor in front of the shrine. The 1st Defendant changed his dress and came back as a juju priest, and introduced himself to Plaintiff as such. He instructed them to do exactly what they were asked to do, failing which he would deal with them. He then brought out a piece of paper on which was written the sentence:- “Help me kill my enemies for me”. He asked the Defendants to sign it, and they all signed. Thereafter the Plaintiff and his colleagues were virtually pushed out of the house of 1st Defendant, and urged never to even contemplate coming back for either their money or the goods.
The Plaintiff went back to Sapele and reported the incident to his senior brother, who said he knew the senior brother of 1st Defendant, and promised to intervene in the matter. He duly intervened, and the senior brother of 1st Defendant arranged a meeting between the parties at which 1st Defendant promised to refund the money to Plaintiff. However, after six months the money had still not been paid; whereupon Plaintiff was forced to report the incident to the police at State C.I.D. Sapele. Following police investigation the three Defendants were arrested and charged to the Chief Magistrate Court, Warri for the offence of obtaining money under false pretences. However, for a reason that was not clear, as no judgment or Record of Proceedings was tendered, the Defendants were acquitted and discharged at the end of the trial. After the said trial, the Plaintiff later instituted this action as already set out above.
In their defences, each of the Defendants denied all the allegations made against them. They filed a joint Statement of Defence in which they denied having received the sum of N364,000.00 or any money at all from the Plaintiff and his colleagues for the sale of any of the commodities mentioned in the claim. 1st Defendant said he was a native doctor, and had a signboard to that effect in front of his house. He denied being a dealer in any other commodity, nor even going with his other colleagues to show goods to the Plaintiffs at Warri Ports, nor even showing them any shipping documents relating to the goods. He averred that the Plaintiff had come with four of his colleagues to his house at Warri to consult him, and he duly charged him the sum of N30.00 and a bottle of native gin as his consultation fees. This was duly paid, after which he asked the Plaintiff to write on a piece of paper what his complaint was, in accordance with his usual practice. Plaintiff wrote on the paper that he wanted him to kill his enemies for him, whereupon he told Plaintiff that he does not usually undertake the killing of people. Plaintiff then asked for the refund of his N30.00 and a bottle of local gin. When he refused to return them, Plaintiff and his colleagues became annoyed and left in annoyance. The piece of paper on which the Plaintiff wrote that 1st Defendant should kill his enemies for him was first tendered as an exhibit at the Magistrate’s Court trial, and later as Exhibit ‘J’ in this Proceedings. At the end of the trial it was submitted on behalf of the Defendants that the allegation that they received the sum of N364,000.00 from the Plaintiff under false pretences was not proved beyond reasonable doubt, as that was an allegation of a crime, as required under S.137(1) of the Evidence Act. However, the learned trial Judge held the view that having regard to the series of receipts and loan agreements tendered as Exhibits by Plaintiff to show that he borrowed the sum of over N300,000.00 from diverse persons at about the time of the incident, the transaction must have taken place. He also referred to the contradiction between the evidence of D.W.2 in court and his earlier written statement to the Police in which he had virtually admitted the offence, and came to the conclusion that Plaintiff has proved his case on the balance of probability as required by law in civil cases. He therefore entered judgment in favour of Plaintiff as claimed. The 1st Defendant and his colleagues were dissatisfied with the said judgment, and so appealed to this court on five grounds as follows:-
“1. The learned trial Judge having held that Exhibits “A” to “C”, “D” to “E13”, F to “G” in the proceedings are inadmissible and not binding on the Defendants erred in law when he proceeded thus “It is therefore my view that the Exhibits were admissible in evidence to show how the Plaintiff got N364,000.00 from the evidence of the Plaintiff tendered I am satisfied that the Plaintiff has proved his case beyond reasonable doubt”.
- The learned trial Judge failed to make proper and full evaluation of the case for the Defendant resulting in wrong conclusion, inference and ultimately a miscarriage of justice.
- The learned trial Judge having held that the averments in the Plaintiff’s Amended Statement of Claim and evidence disclose at least the offence of obtaining by false pretences, erred in law and thereby came to a wrong decision in failing to find the said offence of obtaining the money by false pretences was incapable of being established against the Defendants in that:-
(i) The unexplained failure of the Plaintiff to produce the evidence pleaded in paragraph 37 of his Amended Statement of Claim together with his failure to call one Efenarua a material and only independent witness to whom the 1st Defendant allegedly made a promise to refund the money in question render section 148(d) of the Evidence Act applicable.
(ii) The acquittal and discharge of the Defendants on the charge of obtaining by false pretence by the learned Chief Magistrate Court I, Warri in charge No. MW/1122C/84 C.O.P. v. Edward Owhoeri and 2 ors as pleaded and given in evidence in the proceedings not having been appealed against up till this moment amount to acquiescence on the part of the Plaintiff which knocks the bottom off his Lordship’s statement that the Plaintiff proved his case beyond reasonable doubt.
- The learned trial Judge misdirected himself on the construction and evidential value of Exhibit “J” in the proceedings, contrary to the provisions of Section 132(2) and (3) of the Evidence Act and came to a wrong decision.
- The decision is against the weight of evidence.”
The Defendants will hereinafter in this judgment be referred to as the Appellants, while the Plaintiff will be referred to as the Respondent.
Briefs of arguments were later filed and exchanged; and issues for determination formulated. The Appellants formulated five issues which read as follows:-
“(a) Can the trial court use and rely on Exhibits “A” to “C”, “D” to “E13” and “F” to “G” for any purpose after the court, has held that the said documents are inadmissible, res inter alios and in fact not binding on the Defendants and ought to have been expunged by the learned trial Judge?
(b) From the Pleadings, on which party did the burden of proof rest in respect of proof of payment and receipt of the sum of N364,000.00 (three hundred and sixty four thousand naira) and the existence of any shipping documents?
(c) If the burden of proof was on the Plaintiff, did he discharge the burden?
(d) From the Pleadings and the evidence led in the proceedings, did the Plaintiff prove his case “beyond reasonable doubt” as required by law?
(i) when there was no proof of the receipt of the sum of N364,000.00 (three hundred and sixty-four thousand naira)
(ii) when the Defendants had been discharged and acquitted on a criminal charge of obtaining the money in issue by false pretences.
(iii) and when the Plaintiff failed in the course of the proceedings to call or summon one Johnson Efenarua and Godfrey Onakpoyeya vital, material and independent witnesses to whom the 1st Defendant allegedly made a promise to refund the money in question and who was present throughout the entire transaction respectively.
(e) was the learned trial Judge right in his interpretation of Exhibit “J”. The Respondent on the other hand formulated only three issues as follows:-
“1. Whether the learned trial Judge was right in treating Exhibits “A” to “C”, “D” to “EI3” and “F” to “G” as admissible and relevant.
- Whether the Honourable trial Judge was right in holding that Plaintiff’s case was proved beyond reasonable doubt as required by law.
- Whether the learned trial Judge’s handling of Exhibit “J” was proper and justified.”
I have carefully considered all the questions raised above, and I am of the view that they could all be resolved under the one question as to:
“whether the guilt of the Defendants was proved beyond reasonable doubt as the allegations made against them amounted to the crime of receiving money under false pretences.”
In arguing this Appeal great reliance was placed by learned counsel for the Appellant on the provisions of section 137(1) of the Evidence Act, which reads as follows:”
“137(1) if the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
Learned counsel for the Appellant then submitted that the allegation of receiving the sum of N364,000.00 in this case under false pretences was not proved beyond reasonable doubt for at least two reasons viz:-
In the first place the Appellants denied receiving such money. The onus was therefore on the Respondents to prove that such money was actually paid. This they could have done by the production and tendering of a receipt, but they could not tender one. Rather they tendered Exhibits “A” to “C”, “D” to “E13” and “F” to “G” all of which showed or tended to show that Respondent was indebted to other people. This he said was “res inter alia acta” which was not binding on the Appellants as they were not parties to any of those documents. The learned trial Judge had himself said that those exhibits should not have been admitted, yet he turned round and relied on them in coming to the conclusion that Respondents proved their case beyond reasonable doubt.
Learned counsel for the Appellants also referred to the fact that Appellants had earlier been discharged and acquitted in a Criminal charge of receiving the same sum of N364,000.00 under false pretences in a Magistrate’s Court. The Respondents at the High Court also failed to call two independent and vital witnesses in the person of Johnson Efenarua to whom 1st Appellant allegedly made a promise to refund the money in question as well as one Godfrey Onakpoyeya who was said to have been present throughout the entire transaction.
Lastly, learned counsel for the Appellant quarreled with the learned trial Judge’s interpretation of Exhibit “J”, which was the piece of paper signed by Plaintiff and his colleagues requesting 1st Appellant to kill all their enemies for them. The learned trial Judge had found as a fact that the wordings in that paper Exhibit “J” was different from that given by the Appellants in their oral evidence. He therefore refused to act on the said document. He said he believed the Respondent had gone to Warri to buy the goods from Appellants, and not to ask them to kill any body.
In reply to the above it was submitted on behalf of the Respondent by his learned counsel Dr. D.D. Mowoe (S.A.N.) that although no receipt for the sum of N364,000.00 was tendered, nevertheless the case of the Plaintiff/Respondent was proved beyond reasonable doubt for the following reasons:-
(a) In spite of the flat denial of the Defendants that the sum of N364,000.00 was ever paid to them for the sale of any commodity, it was nevertheless common ground inter partes that Plaintiff, P.W.2, the Defendants and two others converged in the storey building of 1st Defendant in October, 1983. Plaintiff insisted that it was in furtherance of the oral agreement aforesaid for the purchase of goods at N364,000.00, while the Defendants insisted that it was in furtherance of the request of Plaintiff to “kill all enemies for us so that we may enjoy our life.”
(b) Re the contention of Appellants that Exhibits A -C, D- E13, F – ought not to have been admitted in evidence because they had nothing to do with the Defendants, learned Senior Advocate for the Respondents drew court’s attention to p. 122 lines 19-28 of the records, where the learned trial Judge considered those exhibits, and submitted that they were admitted only for the limited purpose of showing how and where the Plaintiff came to have N364,000.00 he paid to the Defendants for the imported commodities. It was therefore submitted that the documents were relevant and therefore admissible for the limited purposes for which they were admitted. Based on that limited purpose, the learned trial Judge was right in coming to conclusion he arrived at, namely that Plaintiff had proved his case beyond reasonable doubt. Finally on this point, it was submitted that even if the said exhibits were wrongly admitted, there were other findings of facts by the learned trial Judge which could have led to the same decision.
(c) On the contention of the learned counsel for Appellants that the case was not proved “beyond reasonable doubt” learned Senior Advocate for Respondent submitted that, that expression did not mean that a case must be proved “beyond the shadow of a doubt.” He then referred to the case of Omorhuhi v. Enatevwere (1988) 1 NWLR (Pt.73) 746 where the expression “proof beyond reasonable doubt” was defined by Oputa, J.S.C. (as he then was) as follows:-
“What is the meaning of proof beyond reasonable doubt” used in Section 137(1) of the Evidence Act? Proof beyond reasonable doubt not proof beyond the shadow of doubt. The law would fail to protect the community both in criminal as well as in civil cases if what is required is absolute certainty – Miller v. Minister of Pensions (1942) 2 All E.R. 373. From the above, it is safe to assume that in both criminal and civil cases, the general rule would seem to be that the circumstances of each case must be such as would lead the guarded discretion of a reasonable and just man to reach the conclusion reached by the trial Judge.”
Based on the above definition, it was submitted that learned trial Judge was right in holding that there was proof beyond reasonable doubt that the Appellants received the sum of N364,000.00 from the Respondent, notwithstanding the absence of a receipt to that effect.
As regards the observation of Appellant’s counsel that two vital witnesses viz:- Godfrey Onakpoyeya and Johnson Efenarua, were not called, and that the presumption provided under Section 148(d) of Evidence Act should be invoked against the Respondent, attention was drawn to Section 178(1) of the Evidence Act which provided that:
“Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.”
It was then submitted that the Respondent testified himself and also called P.W.2 to corroborate his evidence, even though no corroboration was required by law. It was also sufficient that the learned trial Judge believed the said evidence.
Lastly, concerning his issue No.3, it was submitted that the learned trial Judge’s handling of Exhibit ‘J’ was proper and justified. It was submitted that section 132(2) and (3) of the Evidence Act had nothing to do with the Exhibit ‘J’. The straight issue about Exhibit ‘J’ it was submitted, was whether it was written and signed especially by Plaintiff under duress or intimidation as contended by him or written voluntarily as Defendants contend. The learned trial Judge at the end believed the story of Plaintiff and found for him. The court was therefore urged to dismiss this appeal in its entirety as it lacked merit.
I have carefully considered all the evidence adduced in this case at the trial court, as they appear in the records and all the exhibits, as well as the legal arguments of learned counsel on both sides made in their written briefs as well as orally in court and come to the following conclusions.
First, I should observe that the learned Senior Advocate in the introductory paragraph of his brief had observed that Grounds 4 and 5 of Appellants grounds of appeal at pages 133 – 137 of the records were incurably defective in that they did not give particulars of misdirection or error complained and should be struck out. Learned Senior Advocate, nevertheless proceeded in the alternative to frame his issues for determination on the basis of all the grounds filed and duly argued them in his briefs. The Appellant on the other hand did not appear to have noticed that such an objection had been raised as he did not file any reply brief to reply to the objection. However, since the appeal has been fully argued on all the issues raised by the Appellant, I consider the preliminary objection to have been abandoned, more so as no proper “Notice of Preliminary objection” was filed as required under Order 3 rule 15(1) of our rules. No pronouncement will therefore be made on the matter.
As I observed earlier, the main question for determination in this Appeal is whether the allegation of receiving the sum of N364,000.00 from the Respondent by the Appellants under false pretences was proved beyond reasonable doubt or not. It was our law under Section 137(1) of our old Evidence Law, but now under Section 138(1) of our new Evidence Act, Cap. 112; vol. VIII Laws of the Federation of Nigeria, 1990, that:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
It was the contention of the Appellants that since no receipt was tendered to prove that any such money passed from the Respondent to the Appellants the case was not proved beyond reasonable doubt. It was a case of oath against oath. It is our law that:-
“In criminal matters it is trite law that the prosecution has to prove its case beyond reasonable doubt and that where any doubt exists it must be resolved in favour of the accused. (Egbe v. King 13 WACA 105 at
106).”
However, it must be emphasised that it is not in all cases of oath against oath, that the case must be resolved in favour of the accused. The quality of the oath must also be taken into consideration. Where the oath of Prosecution Witnesses is backed up by cogent, compelling and unequivocal circumstantial evidence that point irresistibly to the guilt of the accused and no other person, the accused must be convicted. (See the cases of Lori v. The State (1989) 8-11 S.C. 81; Popoola v. C.O.P. (1964) NMLR 1; Shazali v. State (1988) 5 NWLR (Pt.93) 164; Martin Amuneke v. The State (1992) 1 NWLR (Pt.217) 338; and Ude v. State (1992) 2 NWLR (Pt.222)
In the instant case one must say that although there was no receipt to authenticate the payment of the said sum of N364,000.00 by the Respondent to the Appellants, there was nevertheless other direct evidence of (Plaintiff and P.W.1) who said they gave or saw the giving of the money. These direct evidence were backed up by circumstantial evidence which I consider overwhelming, and also rightly accepted by the learned trial Judge. They included the admission of 1st Appellant that the Respondent came to his house on the date in question in company of four other people (although Respondent said he was accompanied by only two people); as well as the more damaging admission that he gave a paper (Exhibit ‘J’) to the Respondent to write what he came for. The only divergence here was that according to evidence of 1st Appellant it was the Respondent who voluntarily wrote that he wanted him to kill his enemies for him. Whereas according to Respondent the words “Help me kill my enemies for me” were already written on the paper before he was asked to sign it, and he and his colleagues were forced to sign it under duress in order to save their lives. The learned trial Judge had considered both versions and rightly rejected the version of the Appellants and believed that of Respondent. I myself would do the same, for I consider it unreasonable that anybody wanting a native doctor to kill his enemies for him would go to the native doctor with a team of four others to witness the transaction. Such a request or transaction being a crime, one would expect that the negotiation would be done in strict privacy with only the native doctor and his client in attendance. There is also the fact that there was no name or names of any particular person or persons sought to be killed written on the paper Exhibit ‘J’. One would expect that if Respondent had actually wanted the 1st Appellant to kill any person for him, he would state the name of the person. In any event, it appears unnatural that the said transaction should have been reduced into writing at all. Such a transaction being illegal, one would expect that such a request would have been made orally with only the native doctor and his client in attendance. Even when people consult medical doctors for treatment of genuine illness, the complaint of the patient is usually given orally, and for the doctor’s ears alone. In view of these facts, I think that the story of 1st Appellant that the Respondent had voluntarily asked him in writing and in the presence of four other witnesses to kill unspecified enemies for him was a patent absurdity which was rightly rejected by the learned trial Judge.
Next comes the existence of Exhibits ‘A’ to ‘C’, ‘D’ to ‘E13’ and ‘F’ to ‘G’ which were all receipts, Bank Tellers and Loan Agreements between Respondent and his Bankers and other persons to show that he borrowed some money in excess of N300,000.00 either before or after the date of the transaction in this case. Although the learned counsel for the Appellants referred to these documents as “res inter alia acta,” which should not have been acted upon, as they did not concern any of the Appellants, I nevertheless consider them to have been relevant, and therefore rightly admissible, just in the same way a Deed of Conveyance between A and B would be admissible in any land dispute between B and X (a third party), to show B’s root of title. In the instant case any person adjudicating over this case, will certainly want to know how Respondent came to be in possession of such a huge sum of N364,000.00 within so short a time.
In the instant case, Respondent clearly satisfied the curiosity of the learned trial Judge by producing documents to show not only how he borrowed the money from his Bankers and friends in the first instance, but also how he had continued refunding the money by installments ever since the transaction with the Appellants failed. So, all these evidences taken together made the case of the Respondent much stronger than that of the Appellants which was just a bare denial.
While still on the question of “proof beyond reasonable doubt”, one must refer to several murder cases (requiring the highest standard of proof) in which accused were convicted almost entirely on circumstantial evidence. Examples are:-
- The cases of R. v. Ogundipe (Joseph) 14 WACA 458; and R. v. Sala 4 WACA 10 in which the “corpus deliciti” (i.e., the body of the deceased) could not be found, and yet the accused were convicted of murder.
- Also, in the case of R. v. Nwokocha 12 WACA 202. There was no medical report about the cause of death, yet the court held that a Medical Report was not a sine qua non in all cases, and so the accused was convicted.
Finally, I must refer to the fact that this was a case based almost entirely on the credibility of witnesses, which is pre-eminently the domain of the trial court. The learned trial Judge had the opportunity of seeing and hearing the witnesses, and also observing their demeanours in the witness box and said so himself in the following words:-
“I totally disbelieve the Defendants, because their evidence is contradictory and their demeanour in court helped me also to arrive at the conclusion I reached.”
It is trite law that a Court of Appeal which did not have such opportunity should not interfere with the decision of a trial court unless such decision was patently unreasonable, perverse or not supported by the evidence. (See the cases of Kodilinye v. Odu (1935) 2 WACA 336; Kuma v. Kuma (1938) 5 WACA 4; Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1; and Ivienagbor v. Bazuaye (1993) 1 NWLR (Pt.271) 598 at 606-607).
In the instant case, I have carefully considered all the evidence relied upon by the learned trial Judge, as discussed above, and find that though they are mostly circumstantial, they nevertheless support the verdict of the learned trial Judge with the accuracy of mathematics.
This Appeal therefore fails and is hereby dismissed with costs assessed at N1,000.00 in favour of Respondent.
Other Citations: (1993)LCN/0159(CA)
