Tsokwa Motors (Nig.) Ltd. V. Dejo Awoniyi (1998)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A
: The plaintiff instituted an action in the High Court of Justice of Adamawa State holden at Yola against the defendant. His claim as contained in his statement of claim reads:-
“Whereof the plaintiff claims against the defendant the sum of fifty seven thousand four hundred and eighty six naira being estimated value of the missing items in the plaintiff’s car while the same was in the defendant’s custody for the purpose of repairs.”
The facts of the case may be summarised as follows:-
The defendant is a motor company and carries on the business of motor repairs, among others, in Yola. Sometime in 1985, the plaintiff took his Peugeot 504 G.R. Saloon car to the defendant’s workshop for repairs. The defendant failed to repair the car and also refused to allow the plaintiff to carry away his car. The plaintiff was forced to sue the defendant at the Yola High Court for the recovery of the car. Judgment was given in favour of the plaintiff and defendant was ordered to return the car to the plaintiff. Despite the court’s order, the defendant still refused to release the car to the plaintiff. The plaintiff had to go the defendant’s workshop to retrieve his car in November, 1989. He went to the defendant’s workshop in company of some High Court staff. To his utter dismay the plaintiff found that his car was thoroughly vandalized. He discovered that thirty one items were removed from the car. He made a list of the missing items. The list was signed by the plaintiff, an employee of the defendant and a staff of the High Court. The defendant denied the plaintiff’s claim which it described as gold digging. The defendant also pleaded res judicata.
In a reserved and considered judgment, the learned trial judge Abba J., gave judgment in favour of the plaintiff.
Unhappy with this decision, the defendant appealed to this court. In accordance with the practice and procedure of this court, briefs of argument were filed and exchanged. In the appellant’s brief four issues were identified for determination. These are:-
“1. Whether having regard to the pleadings and the totality of the evidence before the trial court, including a proper construction of Exhibit ‘C’, the learned trial Judge was not violently wrong in holding that Exhibit ‘C’ is a list of missing items and consequently holding the defendant liable for the items alleged missing by the plaintiff.
- Whether the learned trial Judge was not in error by not raising the presumption of section 149(d) of the Evidence Act against the plaintiff/respondent, and for failing to hold that where a document is pleaded but not produced oral evidence will be inadmissible in proof of the contents of the unproduced document.
- Whether having regard to the totality of the evidence adduced at the trial of the case, the respondent proved his case to merit the judgment of the trial court in his favour.
- Whether the learned trial Judge made a correct approach to the evidence led by the parties by coming to a conclusion on the evidence led by the plaintiff (now respondent) before considering that of the defence:-
On the other hand two issues were formulated for determination in the defendant’s brief. They read:-
“1. Whether having regard to the evidence adduced the 31 items listed are the missing items from the respondent’s vehicle registration No. PL 1740 JB when it was in the custody of the appellant.
- Whether the learned trial judge was justified when he held that the 31 items listed in Exh. ‘C’ were the list of the items missing”.
Considering the issues formulated by the respondent, it could he seen that the two issues are talking of the same thing. It is a single issue split into two and that issue is the same as the first issue formulated by the appellant. I will therefore use the issues formulated by the appellant in the determination of the appeal.
On the first issue, it was submitted in the appellant’s brief that having regard to the pleadings and the totality of the evidence before the court and upon a proper construction of Exhibit ‘C’ the trial Judge was wrong in holding that Exhibit ‘C’ is a list of missing and not recovered items. The trial Judge was therefore wrong to proceed to hold the defendant liable for the items alleged missing by the plaintiff.
It was further submitted that Exhibit ‘C’ is titled “list of items recovered” the word “missing” was cancelled and did not form part of the title. It was also submitted that inspite of the pleadings, the viva voce evidence and the clear words of Exhibit ‘C’ that it is a list of recovered items, the trial Judge surprisingly held that it is the list of missing items despite the fact that the plaintiff himself admitted that Exhibit ‘C’ is the list or items recovered.
It was submitted that the trial Judge failed to observe the principles of interpretation of documents. He referred to Ashibuogwu v. Attorney-General of Bendel State (1988) 1 SCNJ 130: (1988) 1 NWLR (Pt.69) 138. It was submitted that if there was nothing to modify, alter or qualify the language contained in Exhibit ‘C’, it must be construed in the ordinary and natural meaning. The following authorities were cited in support of the submission – St James Hamstead v. Cortom (1887) 12 A.C. I and Joseph Ishola Williams v. T.A. Hammond projects Ltd. (1988) 2 SCNJ 318; (1988) 1 NWLR (Pt.71) 481. It was contended that the trial Judge was wrong in using the expressions “I believe” and “I find and hold” because the finding was not based on credible evidence or reasonable inference drawn from the facts presented by the parties: Orekepan v. Amadi (1993) 11 SCNJ 60. It was submitted that in making a finding of fact, the trial court merely saying “I believe” is not enough. There must he some indication of how the court arrived at such conclusion. See Oladehin v. continental Textile Mills Ltd. (1978) 2 S.C. 2 and Narumal & Sons Ltd. v. N.B.T.C. Ltd. (1989) 2 NWLR (Pt.106) 730. It was then submitted that there was no credible evidence on the record to support the trial court’s finding that Exhibit ‘C’ is a list of missing items, The finding or the trial court. It was claimed, was in contradiction of the evidence of the plaintiff and other witnesses.
It was submitted on behalf of the respondent that Exhibit ‘C’ which the appellant relied heavily was properly claimed by the trial judge and was right to hold that Exhibit ‘C’ was the list of items missing. It was also submitted that the trial Judge saw the demeanour of the witnesses and believed those who are witnesses of truth and disbelieved those who are not witnesses of truth. It was further submitted that the trial Judge based his judgment on the findings of facts and that those finding of facts were not erroneous. To determine whether or not the learned trial Judge was right in holding that Exhibit ‘C’ is the list of items missing, one has to consider the totality of the evidence adduced before the trial court. In his judgment the trial judge in respect of Exhibit ‘C stated:-
“The original of Exhibit ‘C’ was given to the defendant’s stall who signed as Bala A, Ashu for and on behalf of the defendant on 6/11/89.
Though the heading of this Exhibit ‘C’ is misleading as it says “list of items missing recovered”, also after the item No, 31 the following sentence appears “Those are the items recovered today 6/1/89”. I however believe plaintiff and his witnesses and that I have no doubt in my mind that these 31 items are the items certified missing by both Yakubu the “Maigadi” watchman or security man of the defendant as well as Mr. Bala A. Ashu for defendant who also testified as D.W.2″. (See page 55 of the record)”
Also on page 58 of the record the learned trial Judge said “I find and hold that Exhibit ‘C’ is not items collected by plaintiff but found missing by plaintiff”.
The complaint against the trial Judge’s finding is that he has not properly evaluated the evidence adduced before him. Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643. It was held by the supreme Court that evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence at all or properly that a Court of Appeal can intervene and evaluate such evidence. Otherwise where the court of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, the Court of Appeal has no business interfering with the finding on such evidence. See also Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 and Obodo v. Ogbo (1987) 2 NWLR (Pt.54) 1.
I will now consider the evidence to determine whether or not the trial Judge has properly evaluated the evidence adduced. At the hearing of the case at the court below the plaintiff gave evidence as P.W.1. During the cross-examination of the plaintiff, this is what transpired:-
P.W.1. The list made out in the defendant’s premises is the list of few items discovered not items missing in the vehicle. The time lapse between 1st and 2nd list is only one day interval.
Yes, this is a copy of the 1st list, which was counter signed by the defendant’s staff.
Ejiofor: I seek to lender copy of first list as original is with the plaintiff.
Adegbite: No objection.
Court: The first list dated 6/11/89 made out by plaintiff and countersigned by defendant’s staff of items recovered is admitted and marked as Exhibit ‘C’ (Italics mine)
P.W.3 who works with Gongola Ministry of Works, State Mechanical Workshop, in his testimony stated that:-
“with the Manager, myself, plaintiff and P.W.2 we went to one Peugeot 504 standing in the middle of the defendant’s garage. I then saw the condition of the vehicle. When I opened the bonnet of the 504 I found it had no engine, when I checked for some other things in the car I found nothing, I asked the manager for the engine and other things he directed me to open the boot of the (504) car.
When I opened the boot I saw condemned block engine and some minor parts of the car although none of them is working. Then I asked plaintiff that we should list what we have seen in the car. I then listed them down. After listing items which we saw I signed the list, the manager signed, plaintiff signed and then P.W.2 signed, I can’t remember whether the security guard also signed or not. If I see the list I can identify it with my signature and also my handwriting. This Exhibit ‘C’ is the list of all the items we found in this car’s boot. All other items not listed are missing items.
(Italics mine)
D.W.2 was the store keeper of the defendant company. He testified that:-
“I then agreed to release this vehicle to plaintiff but(we) myself and Plaintiff first listed items found on the car and we both signed this list before I allowed the plaintiff to carry his vehicle. I know plaintiff through one John Oladokun. If I see this list we both made and signed. I can identify it with my signature. The Maigadi’s signature one Yakubu (now dead) is also on the list. Witness is shown Exhibit ‘C’ and he said yes this is the list we all signed”.
(Italics mine)
From the evidence reproduced above, it could be seen that all the witnesses, including the plaintiff, who signed Exhibit ‘C’ said that Exhibit ‘C’ is the list of items recovered and not missing. The plaintiff himself through whom Exhibit ‘C’ was tendered identified the said exhibit and clearly stated that it was the items discovered and not items missing, The other two witnesses also said Exhibit ‘C’ was the list of items recovered. It should he noted that the plaintiff. P.W.3 and D.W.2 were present when the exhibit was math: and they all signed the exhibit. In fact even the trial Judge himself described Exhibit ‘C’ when he admitted it into evidence as the list of “items recovered”.
I have also carefully examined Exhibit ‘C’. It is headed “list of items recovered”. The word missing was however cancelled. Immediately after item No.31 before the signatures of the witnesses, the following was written: “Those are the items recovered today 6-11-89”.
It could therefore he seen that the trial Judge’s finding that Exhibit ‘C’ is the list of items missing and not recovered is perverse because it is not supported by the evidence before him. The evidence, including that of the plaintiff, clearly showed that Exhibit ‘C’ is the list of the items recovered. The learned trial Judge is therefore wrong to have held that Exhibit ‘C’ is the list of the missing items. Exhibit ‘C’ is the list of the items recovered.
I now come to the second issue i.e. whether the learned trial judge was not in error by not raising the presumption of S. 149(d) of the Evidence Act against the plaintiff.
In paragraph 10 of the plaintiff’s statement of claim, it was stated that:-
“10. The plaintiff will further rely on a list of missing items which the plaintiff wrote and which was duly signed by an employee of the defendant which said employee inspected the car with the plaintiff and other court staff, at the hearing of this suit.”
At the trial the plaintiff failed to produce the document. After the matter was adjourned to enable him produce the document, he was still unable to do so. The only explanation he gave was that he gave the list to this lawyer and when he demanded the list from the lawyer, the lawyer could not give him the list. In my opinion this is not a satisfactory explanation as to why he was unable to produce the document. The law is that where a party relying on a document in an action fails to produce the document and there is no proper explanation as to his inability to produce the said document the court may, upon his failure to produce it, presume that the document if produced, would have been unfavourable to that party by invoking S. 149(d) of the Evidence Act. See: Bamgbose v. Jiaza (1991) 3 NWLR (Pt.177) 64. As I have earlier said, there was no satisfactory explanation as to why the plaintiff failed to produce the document. S. 149(d) of the Evidence Act will therefore operate against the plaintiff.
By failing to produce the list of the missing items, the plaintiff has failed to prove his case. Exhibit ‘C’ upon which the trial Judge relied and entered judgment in favour of the plaintiff was not the list of the missing items. It was the list of the items recovered. It therefore follows that the plaintiff has not proved which items were missing nor their costs.
In the final analysis the appeal succeeds and is allowed by me. I set aside the judgment of the lower court delivered on 26th day of October, 1997. In its place I enter a judgment of dismissal of the suit. I assess and award N1,000.00 cost to the appellant.
Other Citations: (1998)LCN/0372(CA)
