Fixity Investment Ltd V. Alhaji Aminu Mohammed Gumel (2016)

LawGlobal-Hub Lead Judgment Report

ISAIAH OLUFEMI AKEJU, J.C.A.

This appeal is against the decision of the High Court of Justice, Kano State of Nigeria holden at Kano delivered on 23/5/07 in suit No. K/539/2000 commenced by the Appellant as plaintiff through the writ of Summons dated 5/9/2000 for hearing under the undefended list wherein the Appellant had claimed an amount of N780,277.11 against the defendant, now Respondent. Upon consideration of the Notice of intention to defend filed by the Respondent however, the Kano State High Court (now called the trial Court) found that the Respondent had shown a defence on the merit and accordingly transferred the suit for hearing under the general cause list and ordered the parties to file their pleadings.

In Paragraphs 18 and 19 of the statement of claim eventually filed on 17th May, 2001, it was averred that the plaintiff claimed the sum of N304 ,671.43 and 5% weekly profit thereon from April 2000 till the entire judgment debt is paid and 10% Court interest from date of judgment until the final liquidation with the entire costs of the action. The Respondent as the defendant filed a statement of defence of 16 paragraphs on 25/6/10 wherein he denied the claim and prayed that same be dismissed in its entirety.

At the trial of the action, Alh. A.O. Suleman the M.D. of the Appellant (plaintiff,) testified in support of the claim and stated that the Respondent approached him and requested that the Appellant should jointly execute a contract he secured from Jigawa State Government for supply of 600 cartons of exercise books in the sum of N2,970,000.00 and they agreed to expend N150,000 at a profit of 76,607.00 making a total of N226,607.00 for which the Respondent issued a cheque dated 14/12/1999. The cheque and other documents he allegedly received from the Respondent were admitted as exhibits. He said the cheque was not paid to the plaintiff upon its maturity whereupon the Appellant caused its solicitor to write a letter to the Respondent who reacted by coming to apologies for the incident and agreed to pay additional profit of N110,000.00 while a written agreement was executed and another cheque for an amount of N104,667.00 was issued by the Respondent in favour of the Appellant which cheque was not honoured, but the Respondent paid N100,000.00 which was the only amount he paid to the Appellant. He said the contract had, to the best of his knowledge been fully executed and urged that his claim be granted. The Appellant tendered a total of eight documents as exhibits.

The Respondent, Aminu Muh’d Gumel testified in the defence of the action. He said he came to the Appellant sometime in 1999 as a result of the contract he got from Jigawa State Government for supply of exercise books which he applied to the Appellant for financing in writing which was approved and he was given N150,000.00 but was made to pay processing fee of N50,000.00. When he was cross examined he said the contract awarded to him was later terminated by Jigawa State Government though it had no time frame. He said he issued cheques to the Appellant but it was part of the procedure the Appellant requested him to follow before financing the contract.

After taking the addresses of the learned Counsel for the parties, the trial Court in its decision contained in the judgment delivered on 23/5/07 held that the Appellant was entitled to only N25,000.00 while the other claims were dismissed; and the Court ordered that the Respondent was entitled to the return of all his documents provided in support of the sum of N1,000,000.00 expected to be provided by the (plaintiff) Appellant.

Dissatisfied with the judgment of the trial Court the plaintiff now called the Appellant gave Notice of Appeal dated 21st August, 2007 with one ground of appeal that the judgment is against the weight of evidence and that further grounds of appeal would be filed upon receipt of the records of proceedings.

In pursuance of the appeal the Appellant’s Brief of Argument prepared by Kayode Amodu Esq. was filed on 12/2/14 but deemed properly filed on 31/3/14 while the Respondents’ Brief settled by Salisu Abubakar Esq, and filed on 10/6/14 was deemed filed on 25/6/14. The Appellant formulated a lone issue for determination which was adopted by the learned Counsel for the Respondent. The briefs were adopted by the learned Counsel for the parties at the hearing of the appeal and they urged Court to accede to their respective prayers. The lone issue raised by the parties for determination of the appeal is whether having regard to the totality of the evidence adduced by both parties the learned trial judge was right to have refused to grant the Appellant’s claims. The appeal will be considered and determined on the basis of this lone issue.

The learned Counsel for the Appellant contended that the judgment of the trial Court was based on its findings that for the financing request by the Respondent for the sum of N1,000,000.00 to have elicited the grant of only N150,000.00 by the Appellant, the Appellant itself already laid foundation for the failure of the contract as indicated by exhibit 4 dated 10/12/99 by which the contract was suspended, and that exhibit 5, the document governing the contract between the Appellant and the Respondent was voidable by the Respondent as it was a product of deceit and misrepresentation. According to the learned Counsel, these findings are erroneous as they were based on the belief that the amount of N150,000.00 advanced by the Appellant was paltry and therefore the Appellant initiated the failure of the contract.

The argument of the learned Counsel is that the Respondent requested for N1,000,000.00 from the Appellant to finance the contract but the Appellant offered to pay the amount in installments beginning with N 150,000.00 that would attract N76,000.00 profit to the Appellant which the Respondent accepted by issuing a post dated cheque for N226,667.00 to the Appellant for both the principal and the profit. It was submitted that the sum of N 150,000.00 was a counter offer which the Respondent accepted and was bound to perform the contract on the new terms; INNIH V. FERADO AGRO CONSORTIUM LTD. (1990) 5 NWLR (Pt. 152) 604. The Respondent failed to perform the contract but requested the Appellant to reinvest the money as a result of which exhibit 5 came into being which now embodies the contract between the parties though a product of the counter offers.

The learned Counsel argued that contrary to the finding and holding of the learned trial judge evidence adduced in the case showed that the Respondent’s contract with Jigawa State Government had failed because only N150,000,00 was advanced to the Respondent or that he did not have enough funds to complete the contract the Respondent did not state that the contract was revoked for non-performance, neither did exhibit 4 state that the contract has failed it simply stated that the contract has been deferred on the instruction of the governor.

It was argued that exhibit 4 has nothing to do with the failure of the contract for non performance and has nothing to do with non availability of funds for the Respondent to pursue the contract, the Court could not rely on sentiments, a man is bound by a contract he has freely entered into; DENNIS IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (Pt. 620) 552.

It was submitted that the second leg of the findings by the learned trial judge that exhibit 5 is voidable because it is a product of deceit and misrepresentation also did not arise from the evidence adduced at the trial, it only arose from the address of the Respondent’s Counsel before the trial Court. It was submitted that the address of Counsel cannot take the place of evidence; OSUIGWE V. NWIHIM (1995) 3 NWLR (Pt. 386) 752. The learned Counsel argued that the Respondent did not allege any deceit or misrepresentation in his testimony before the trial Court, but simply admitted that he entered into the agreement now exhibit 5 with the Appellant, he paid N50,000.00 as processing fee as requested, and apart from the N150,000.00, nothing was advanced to him. It was then contended that the finding that exhibit 5 was a product of deceit and misrepresentation is not supported by evidence but based on speculation and or sentiment.

In response to the foregoing contentions, arguments and submissions by the Appellant’s Counsel, the Respondent’s Counsel contended that exhibit 1 in its clear terms shows an offer by the Respondent to the Appellant for financing of contract/LPO of N1,000,000.00 to enable the Respondent execute an LPO for the supply of exercise books to Jigawa State Government with the details stated therein.