S. C. Ezemba V. S. O. Ibeneme & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The respondents as plaintiffs commenced an action in the High Court of Anambra State sitting at Onitsha against the appellant as defendant under the undefended list procedure but following a notice of intention to defend filed by the appellant, the suit was transferred to the general cause list for trial upon pleadings. The parties accordingly filed and exchanged pleadings. The plaintiffs/respondents subsequently with the leave of court, filed an amended statement of claim wherein they claimed against the defendant/appellant in paragraph 31 thereof as follows:

“1. N440,000.00 (Four hundred and forty thousand naira) being the balance owed by the defendant to the plaintiffs.

2. Interest on the said amount at the rate of 4% (Four percent) from the date of judgment until the entire sum is liquidated.”

At the trial, parties led evidence in support of their respective pleadings. The two plaintiffs testified, respectively, as P.W.1 and P.W.3 while Sunday Ugwu an employee of the 1st plaintiff at the material time testified as P.W.2. The defendant/appellant testified on his behalf and called no witness.

The facts of the case are simple and straightforward. Both parties entered into an agreement whereby the plaintiffs/respondents were to supply to the defendant/appellant 50,000 metres of 50 mm aluminium conductor cables at the rate of N13.50 per metre for a total price of N675,000.00 to enable the latter execute an electrification project at Alor the contract of which was awarded to him by the Anambra State Government. The case for the plaintiffs/respondents is that they supplied the quantity of goods as stipulated and even supplied more than what was agreed upon by delivering a total of 52,032.09 metres instead of the agree quantity of 50,000 metres. The goods were delivered on behalf of the plaintiffs/respondents by an employee of 1st plaintiff/respondent by name Sunday Ugwu (P.W.2) who delivered the goods at Alor to Cyril Ikechukwu Attah said to be the site manager of the defendant/appellant. The plaintiffs/respondents mentioned that after the supplies, the defendant/appellant paid to them in two instalments, a total sum of N235,000.00 leaving a balance of N440,000.00 which he has refused to settle despite repeated demands, hence they instituted the action against him.

The defendant/appellant’s case, on the other hand, was that the quantity of cables supplied to him was 17,407 metres of cables and that the sum of N235,000 he paid to the plaintiffs/respondents was the value of that quantity of cables. He denied vehemently being indebted to the plaintiffs/respondents.

The learned trial Judge, Ofomata, J., in his judgment delivered on 15th June, 1998 found in favour of the plaintiffs/respondents to whom he adjudged entitled to their claim. On appeal by the defendant/appellant to the Court of Appeal, Enugu Division, that court in its unanimous decision delivered on 17th May, 2000 dismissed the appeal and affirmed the judgment of the trial High Court. This is a further appeal by the defendant to be referred to simply as appellant. The appeal is predicated on four grounds. Parties by their counsel filed and exchanged briefs of argument, which were adopted and relied upon for the consideration of the appeal with oral address to highlight some aspects of the briefs. In the appellant’s brief, two issues were identified as arising for the determination of the appeal. These are:

“(i) Whether upon a calm view of the pleadings and the evidence, the Court of Appeal below was right when it affirmed the judgment of the court of. trial which held that the respondents had proved that they delivered 52,032.9 metres of aluminium conductor cable to the an appellant .

(ii) Whether the judgment of the Court of Appeal below represent a dispassionate and full consideration of the issues raised by the appellant before that court and fully argued in the appellants brief.”

For the plaintiffs/respondents hereinafter, referred to simply as respondents, their counsel filed a respondents’ brief with the following issues –

“1. Were the learned Justices of the Court of Appeal right when they affirmed the judgment of the trial court that the respondents delivered 52,032.9 metres of aluminium conductor cables to the appellant

2. Did the Court of Appeal consider all the issues properly raised before it. If answered in the negative has their failure to do so occasioned any miscarriage of justice”

A careful perusal of the two sets of issues reveals that though differently worded, they are nevertheless identical in content.

On the first issue for determination, the learned counsel for the appellant, Mr. Udechukwu, SAN, who settled the brief, submitted therein that the respondents did not prove that they supplied 52,032.9 metres of aluminium conductor cables to the appellant; that since the respondents pleaded in paragraphs 14-17 of their amended statement of claim that they were going to rely on waybills signed by P.W.2 and one Cyril Ikechukwu Attah on behalf of the appellant in proof of the delivery of the goods, the respondents were bound to produce the said waybills and that since the only waybill tendered by the respondents was exhibit ‘A’ dated 15/7/91 showing a delivery of only 3,020 metres of cable, the respondents had failed to prove their case. It was further argued on the strength of section 149(d) of the Evidence Act, 1990 that the failure of the respondents to produce evidence of delivery of the remaining quantity of cables is either that such evidence is non-existent or that if produced, it would not support the case of the respondents. He relied on the following cases and provisions of the Evidence Act – Elias v. Omo-bare (1982) 5 SC 25; (1982) (Pt. 1) vol. 1 All NLR 70; A.C.B. Plc. v. Haston (Nig.) Ltd. (1997) 8 NWLR (Pt. 515) 110 at 131; sections 93, 94 and 96 of the Evidence Act. Learned counsel further submitted that since the appellant admitted the delivery of 17,407 metres of cable the respondents were only entitled to the value of that quantity. Referring to the observation in the leading judgment of the court below delivered by Ubaezonu, JCA, to the effect that the appellant should have called Cyril Ikechukwu Attah, his site manager to give evidence, learned counsel submitted that it is for a plaintiff to prove his case and not for the defendant to disprove it citing in support the case of E. D. Tsokwa & Sons Company Ltd. v. Union Bank of Nigeria Ltd. (1996) 10 NWLR (Pt. 478) 281.

In his response, learned counsel for the respondents, Mr. Onochie submitted that the appellant’s submissions are misconceived. He argued, firstly, that a party to a suit is not obliged to lead evidence in support of every averment in his pleadings and referred to the case of Olurunfemi & 7 Ors. v. Chief Rafiu Eyinde Asho & Anor. (2000) 2 NWLR (Pt. 643) 143. Secondly, learned counsel pointed out that under the rules of pleadings, a pleader who has pleaded more than he strictly needed to have done can always disregard the unnecessary or surplus averments. Thirdly, it was submitted that the law of evidence requires a party to prove his case by the best evidence available. Learned counsel referred to the evidence of P.W.2 which the two lower courts believed to the effect that he delivered 52,032.9 metres of aluminium cables to the appellant through his site manager Cyril Ikechukwu Attah and citing the case of Lawrence Nwankpu & Anor. v. Dennis Ewulu & 2 Ors. (1995) 7 NWLR (Pt. 407) 269 at 293 argued that the circumstances under which an appellate court can interfere with the findings of fact of a trial court has not arisen in this case. On the contention by the appellant that he was not obliged to call as a witness Cyril Ikechukwu Attah, learned counsel for the respondents submitted that in civiI cases, while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues arising in the course of the proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. Counsel craved in, support the case of Friday Elema &Anor. v.Princess Charity A. Akenzua (2000)13 NWLR (Pt.683) 92; (2000) 6 SCNJ 266 at 238.