ALHAJI DAHIRU ADAMU V ASHAKA CEMENT CO. PLC

Legalpedia Citation: (2015-06) Legalpedia (CA) 10721

In the Court of Appeal

HOLDEN AT GOMBE

Wed Jun 3, 2015

Suit Number: CA/J/232/2014

CORAM

JUMMAI HANNATU SANKEY JCA

PARTIES

ALHAJI DAHIRU ADAMU

APPELLANTS

ASHAKA CEMENT CO. PLC

RESPONDENTS

AREA(S) OF LAW

LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, LAW OF TORT, LAW OF CONTRACT, JUDGMENT, COMPANY LAW, APPEALS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Gombe State. The Appellant as Plaintiff claimed in detinue against the Respondent as Defendant for wrongful detention of his two trucks. He also claimed special damages for loss of use and income and general damages against the Respondent. It was his case that he is the owner of the two trucks detained by the Respondent on account of alleged indebtedness of his company, Al-Adams Nigeria Ltd., to which the two trucks does not belong. He demanded for the release of his two trucks from the Respondent but it refused insisting that the two trucks were presented to it as properties of Al- Adams & Sons Nigeria Ltd., of which the Appellant is the Managing Director and that the two trucks were detained on account of his company’s diversion of 11 trucks load of cement without delivery. The two trucks would only be released upon delivery or payment for the diverted 11 trucks load of cement. The Appellant in exasperation having waited to no end for the release of his two trucks by the Respondent sued it in court claiming damages in detinue. The claims were dismissed as lacking in merit. The Appellant was thoroughly dissatisfied with the said judgment and had appealed against it to this court.

HELD

Appeal allowed.

ISSUES

1. “Whether the court below was right to have embarked on an investigation on its own of documents tendered but not examined in open court?”
2. “Whether the test of illiteracy is mere understanding of the language used in Court and such illiteracy can be determined by the court suo motu without hearing the parties?”
3. “Whether failure by the lower court to properly evaluate and ascribe probative value on evidence of the validity of a contract and make pronouncement thereon did not lead to miscarriage of justice?”
4. “Having regards to the pleadings and evidence led before the trial court, whether or not the trial court was right in dismissing the Appellant’s claim in its entirety”
5. “Whether it was proper for the court below to rely on inadmissible evidence in arriving at its decision?”

RATIONES DECIDENDI

EVALUATION OF EVIDENCE – DUTY OF TRIAL COURTS TO EVALUATE EVIDENCE AS TO DETERMINE THEIR ADMISSIBILITY OR INADMISSIBILITY

Now while it is true that it is not the duty of the court to do cloistered justice by embarking on an inquiry into the case outside of what was demonstrated in the evidence before it, yet it is the sacred duty of the court, particularly trial courts such as the court below, to appraise, consider review and evaluate the totality of the evidence led before it and in so doing to determine which evidence is admissible or inadmissible, relevant or irrelevant to the facts in issue, credible or incredible and of what weight. A court that fails in this latter duty fails in its entire duty of being an impartial arbiter in the adversary system of administration of justice in this country. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVIDENCE – WHETHER OR NOT A COURT/TRIBUNAL WILL ACCEPT EVERY PIECES OF EVIDENCE CREDIBLE/ADMISSIBLE OR NOT

No court or tribunal worth its’ name, I venture to say, would act as mere robot in accepting hook line and sinker or willy nilly every pieces of evidence , whether credible or not, admissible or not led before it to make finding of facts merely because it was not objected to at the time it was received. It is indeed the paramount duty of the court to act only on admissible evidence and to reject inadmissible evidence even where it was not objected to or admitted inadvertently. The cases of Onibudo V. Akibu(Supra); Ogundele V. Agori(Supra)  and  Briggs V. Briggs (Supra) remain good law but are of no avail to the Appellant. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVALUATION OF EVIDENCE – THE PRIMARY FUNCTIONS WITHIN THE DOMAIN OF THE TRIAL COURT

The evaluation of relevant and material evidence and ascription of probative value to such evidence, both oral and documentary, are the primary functions, within the domain, of the trial court, which it is to be remembered and constantly kept in the mind of the appellate court, saw, heard and assessed the witnesses. See Olonade V. Sowemimi(Supra) @ p. 106. See also Mogaji V. Odofin (Supra); Ojokolo V. Alamu(1998) 9 NWLR (Pt. 565) 225. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVALUATION OF EVIDENCE – COURTS OF LAW ARE MANNED BY TRAINED PERSONNELS WHO CARRY OUT SACRED DUTIES OF REVIEWING, APPRAISAL AND EVALUATION OF EVIDENCE

Courts of law are neither robotic nor manned by robots. They are manned by persons trained in the art of perception and of sound mind, evaluative spirit and ingrained sense of justice and fair play. They carry out their sacred duties by way of review, evaluation, appraisal and ascription of probative values to the end that cases are decided as best as they can on admissible and credible evidence only.  See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7 – 8 SC 144, where it was pronounced emphatically thus:

“A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law…………..and so if the court should inadvertently admit inadmissible evidence in law, it has a duty generally not to act upon it. It is the duty of the opposite party or his counsel to object immediately to the admissibility of such evidence, although if the opposite party should fail to raise objection in such circumstances, the court in civil cases may (and in criminal cases must) reject such evidence exproprio motu”

This point was also aptly captured in Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582, where it was observed thus:

“Receipt of relevant evidence is an act of perception while evaluation of evidence entails the weighing of evidence, bearing in mind the surrounding circumstances of a case. Findings of facts by a trial court involves both perception and evaluation”

It is to be noted that in carrying out evaluation of evidence, a very tough turf for the courts, a court is not to merely review or restate the evidence but is expected to critically appraise it in the light of the facts in issue, what is relevant, admissible and what weight to be attached. In other words, evaluation of evidence is much more critical, crucial and tasking than mere review of evidence. This, to my mind, is where the Appellant’s counsel got it all wrong in his submissions on the first issue. This calls to my mind the caustic reminder of his lordship, M. D. Mohammed JSC., in Olonade v. Sowemimo(Supra) @ p. 121. See also Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458; Onwuka V. Ediala (Supra), where the court admonished and clarified thus:

“Unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the court arrived at its conclusion preferring one piece of evidence to the other”

Similar views were expressed in Nwoti V. Mbonu ( Supra) to the following effect that:

“The reaching of conclusions by drawing necessary inference is a   product of legal mind not an indulgence in speculation.” 

PER – BIOBELE ABRAHAM GEORGEWILL JCA

PROVE BY CREDIBLE EVIDENCE – AN ALLEGATION OF ILLITERACY IS TO BE PROVED BY CREDIBLE EVIDENCE

The law has long been well settled in a long line of judicial authorities as are replete in our law reports that illiteracy, whenever it is alleged, is a question of fact to be proved by credible evidence by the person so alleging it. An allegation of fact, except where it is admitted by the adverse party, is not proved by mere pleadings unsupported by credible evidence. See Gabida V. Marcus (Supra) @ pp. 1460 – 146. See also Anaeze V. Anyaso (Supra); Thomas Alphine & Co. Ltd. V. Northern Nigeria Dev. Co. (Supra). PER – BIOBELE ABRAHAM GEORGEWILL JCA

AN ILLITERATE PERSON – MEANING OF AND THE POSITION OF THE LAW ON ILLITERACY

 Who then in law is an illiterate person? In Otitoju V. Governor of Ondo State (Supra0 @ p. 518, an illiterate is defined thus:

“A person who is unable to read with understanding and to express his thoughts by writing, in the language used in the document or prepared on his behalf”

An attempt was also made by this court to restate the law on proof of illiteracy in Gabida V. Marcus (Supra), where Mangaji, JCA., ( May Allah bless his soul), stated thus:

“Outside clear evidence that a person is an illiterate, the fact that he appended his thumb print on a document is no proof that he is an illiterate, just as the fact of signing a document is not proof that the maker is not an illiterate. The conclusion whether a person is an illiterate is a matter of fact provable by evidence”              

On the state of the applicable principles of law, illiteracy is undoubtedly a question of fact. Being a question of fact, therefore, the test is an objective, not emotive or subjective, one for as it was succinctly stated in Anaeze V. Anyaso (Supra) thus:

“The issue of illiteracy is a question of fact to be decided objectively on the evidence presented in court….”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPEALS – WHETHER OR NOT AN ERRONEOUS/WRONG CONCLUSION OF A COURT IS LIABLE TO BE SET ASIDE ON APPEAL

However, it is not the law that once a court reaches a conclusion on wrong reasoning or ground such a conclusion is liable to be set aside on appeal. Rather, the law is that where a court reaches a conclusion on a wrong reasoning or ground, whether such a conclusion will be liable to be set aside or not on appeal is largely dependent on the question whether the conclusion reached was right or wrong on the evidence before the court. In other words, an appellate court is not so much concerned with the reasons adduced in reaching a conclusion by a trial court but rather with the correctness or otherwise of the conclusion reached. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPEALS – AN APPELLATE COURT WILL NOT INTERFERE WITH THE CORRECT CONCLUSION OF A TRIAL COURT

In law therefore, once the conclusion reached is correct on the evidence before the trial court, even if the reason or ground relied upon is wrong, the appellate court will not interfere with the correct conclusion of the trial court. Very sound logic one may say! Judicial authorities on this position of the law are legion. In Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, Edozie, JSC., had pronounced with finality on this vexed issue, thus:

“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere….”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

RAISING ISSUES SUO MOTO – THE POSITION OF THE LAW ON COURTS NOT RAISING ISSUES SUO MOTO AND RESOLVING THEM WITHOUT HEARING PARTIES

The principles of the law on courts not raising issues suo moto and resolving same without hearing the parties have been well settled and so frequently pronounced upon so much so that its understanding or appreciation should no longer present or pose any difficulty either to counsel or to the courts. See generally the following cases; Onyekanmi V. NEPA (2001) FWLR (Pt. 34) 404 @ pp. 429 – 430; ASESA V. Ekwenem (2009) 6 – 7 SC (Pt 11) 5; Irom V. Okumba (1998) 2 SCNJ 5; Chief Okochi V. Chief Animkwoi (2003) 6 SCM 113; Dalek Nig. ltd. V. OMPADEC ( 2007) 2 SCNJ 218. PER – BIOBELE ABRAHAM GEORGEWILL JCA

ILLITERATE JURAT – THE ABSENCE OF AN ILLITERATE JURAT ON A DOCUMENT DOES NOT RENDER THE DOCUMENT INADMISIBLE IN EVIDENCE WHERE THE MAKER OF THE DOCUMENT IS LITERATE

It is the contention of the Appellant’s counsel that the admission of Exhibit 7 & 8 in evidence by the court below was wrongful in that they were documents being used against the illiterate Appellant without a jurat as required by Section 3 of the Illiterates Protection law, which rendered such documents void. Counsel had relied on Amizu V. Nzeribe(Supra); Michael Hausa v. The State (Supra).

On the other hand, it is the contention of the Respondent’s counsel that the decided cases relied upon by the Appellant’s counsel on the effect of absence of illiterate jurat in a document sought to be used against an illiterate person, though remain good law, are of no relevance to the facts and circumstances of this case. Without much ado, having already held that the court below was right in its decision that the Appellant is not an illiterate, I agree completely with the apt and unassailable submission of the Respondent’s counsel and hold that the Appellant being not entitled to the protection afforded by Section 3 of the Illiterates Protection Law, these documents admitted without illiterate jurat were admissible in evidence and were thus rightly so admitted in evidence by the court below. See Mandilas Ltd. V. Ayanru (2000) 1 NWLR (Pt. 653) 438. See also SCOA Zaria V. Okon (Supra); Djukpan V. Orovuyovbe (1967) 1 All NLR 134; Olanloye V. Fatunbi (Supra) @ p. 203. PER – BIOBELE ABRAHAM GEORGEWILL JCA

ADMISSIBILITY – ADMISSIBILITY IS GOVERNED BY PLEADINGS

In law therefore, admissibility is governed by pleadings as it is the pleadings that will state the facts upon which evidence, whether oral or documentary will be adduced and admitted. In so far as what is pleaded is relevant, including the fact of existence of a document, it is admissible in evidence. Generally, it is relevancy that governs admissibility. See Omega Bank Nig. Plc. V. OBC Ltd. (Supra)@ p. 483. See also Oladele V. Aromolaran 11 (Supra) @ p. 180; Torti V. Ukpabi (Supra) @ p. 214. PER – BIOBELE ABRAHAM GEORGEWILL JCA

INADMISSIBLE EVIDENCE: WHETHER OR NOT AN OBJECTION TO INADMISSIBLE EVIDENCE CAN BE RAISED ON APPEAL

The law is well settled that whether a complaint against inadmissible evidence being admitted by a trial court should be raised on appeal or not will depend on whether the evidence so admitted by the trial court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus not admissible in evidence in any event. Where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal. Where however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal even where it was not objected to at the trial. This is so because in law a court of law is under a duty to act only on admissible evidence in deciding matters before it. See Okulade V. Alade (1976) 1 SC 83. See also Esso West African Incorporated V. Alli (1968) NMLR 414; Ajayi V. Fisher1 FSC 97; Ugbala  V. Okorie (1975) 12 SC 13; Yasin V. Barclays Bank (1968) 1 All NLR 171; Kossen Nig. Ltd. V. Savanah Bank Nig. Ltd.(1995) 9 NWLR (Pt. 421) 1. PER – BIOBELE ABRAHAM GEORGEWILL JCA

DOCUMENTS – WHETHER OR NOT A COURT CAN ACT ON AN UNTENDERED DOCUMENT

A court can only act or pronounce on documents tendered before it and not on untendered documents. See Omega Bank Nig. Plc. V. OBC Ltd. (Supra) @ p. 483. See also Oladele V. Aromolaran 11 (Supra) @ p. 180; Torti V. Ukpabi (Supra) @ p. 214. PER – BIOBELE ABRAHAM GEORGEWILL JCA

DECISION OF THE TRIAL COURT – WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH DECISIONS/FINDINGS OF THE TRIAL COURT

These two issues, being considered together, raise the fundamental issue of when an appellate court can interfere with or intervene to disturb the ultimate decision or conclusion of a trial court. It may well be important to bear it constantly in mind that appellate courts do not make it a habit of interfering with decisions or findings or conclusions of trial courts unless it is shown that such decisions or findings or conclusions are perverse. PER – BIOBELE ABRAHAM GEORGEWILL JCA

PERVERSE DECISION – WHEN IS A DECISION OF THE COURT PERVERSE

A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the court or it takes into consideration matters extraneous to the issues placed before the court in evidence by the parties. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also C.S.S Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, where it was pointed out succinctly thus:

“A decision of a court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate court is bound to interfere with such a decision and to set it aside” PER – BIOBELE ABRAHAM GEORGEWILL JCA

ADMITTED FACTS – WHETHER OR NOT ADMITTED FACTS NEEDS FURTHER PROOF

These facts having been admitted therefore need no further proof as correctly held by the court below since in law admission is perhaps the best form of evidence available in any suit between the parties. See APC V. INEC & Ors. (2014) 11 SCM 36. See also Jolasun V. Bamgboye (2010) 11 SCM 12; Taiwo V. Adegboro (2011) 6 SCM 159. PER – BIOBELE ABRAHAM GEORGEWILL JCA

DETINUE – ESSENTIAL INGREDIENTS FOR A PLAINTIFF TO ESTABLISH TO SUCCEED A CLAIM OF DETINUE

In law for a Plaintiff, as in the instant case the Appellant to succeed in a claim in detinue, he must plead and adduced credible, admissible and sufficient evidence to establish the constituent elements or essential ingredients of the tort of detinue, namely;

1. That he is the owner of the chattel or property in question.

2. That he has an immediate right to the possession of the chattel or property.

3. That the Defendant is or was in active possession of the chattel or property.

4. That the Plaintiff has made a proper demand on the Defendant to deliver up the chattel or property to the Plaintiff  and

5. The Defendant has unjustifiably refused to deliver up possession of the chattel or property to the Plaintiff.

See generally the following cases; Umoru V. Ijumu Local Government Council & Anor. (2010) LPELR 19759, per Bada, JCA. See also Sodimu V. NPA (1975) 4 SC 15 ‘p. 27; Guiness Nig. Plc. V. Mooke ( 2001) FWLR (Pt. 36) 981; W.A. Oilfields Ltd. V. UAC (200) 13 NWLR (Pt. 685) 68; UBA Ltd. V. Osezua (1997) 2 NWLR (Pt. 485) 28; Shuwa V. CBDA (1991) 7 NWLR (Pt. 205) 550. PER – BIOBELE ABRAHAM GEORGEWILL JCA

SIGNATURE – WHETHER OR NOT AN AGREEMENT SIGNED BY THE MANAGER OF A COMPANY IS VALID

In law an agreement signed by a Manager or other principal officers of company is valid. See Kate Enterprises Ltd. V. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 127. See also Saleh V. Bank of the North (2006) 6 NWLR (Pt. 976) 316; Oforkuja V. Trarba State Government (2003) FWLR (Pt. 178) 1036; Delta Steel Nig. Ltd. V. American Comuter Tech Incorp. (1999) 4 NNWLR (Pt. 597) 53, where it was categorically held thus:

 “The acts of Directors and Managers are binding on the company” PER – BIOBELE ABRAHAM GEORGEWILL JCA

LEGAL PERSONALITY – THE DISTINCT LEGAL PERSONALITY OF A LIMITED LIABILITY COMPANY

In law, a limited liability company is a distinct legal personality from its Directors and shareholders, whose liability are generally limited to the value of their shares in the company and no more. See the locus classicus of Salomon V. Salomon (1897) AC 22 @ p. 51. See also Marina Nominees Ltd. V. FBIR (1986) 1 NWLR (Pt. 20). See also Chartered Brains Ltd. & Anor. V. Intercity Bank Plc (2009) 15 NWLR (Pt. 1165) 444 @ p. 456, per Bada, JCA; H.L.Bolton Co. V. T. J. Graham (1956) 3 All ER 624 @ p.630 per Lord Denning LJ.; Lee V. Air Farming Ltd. (1961) AC 12. PER – BIOBELE ABRAHAM GEORGEWILL JCA

LEGAL PERSONALITY – THE DISTINCT LEGAL PERSONALITY OF A LIMITED LIABILITY COMPANY

In law, a limited liability company is a distinct legal personality from its Directors and shareholders, whose liability are generally limited to the value of their shares in the company and no more. See the locus classicus of Salomon V. Salomon (1897) AC 22 @ p. 51. See also Marina Nominees Ltd. V. FBIR (1986) 1 NWLR (Pt. 20). See also Chartered Brains Ltd. & Anor. V. Intercity Bank Plc (2009) 15 NWLR (Pt. 1165) 444 @ p. 456, per Bada, JCA; H.L.Bolton Co. V. T. J. Graham (1956) 3 All ER 624 @ p.630 per Lord Denning LJ.; Lee V. Air Farming Ltd. (1961) AC 12. PER – BIOBELE ABRAHAM GEORGEWILL JCA

PARTY TO A CONTRACT – WHETHER OR NOT A PERSON WHO IS NOT A PARTY TO A CONTRACT CAN BE BOUND BY SUCH CONTRACT

It is also well settled law that a person who is not party to a contract and thus lacking the privacy of contract cannot be bound by such a contract even where it was made for his own benefit. This is a long firmly established principle of the law of contract, far too established to be merely wished away by the Respondent and the court below. See Prince Ogundare V. Shittu Ogunlowo (1997) 6 NWLR (Pt. 509)1. See also Ikpeazu V. ACB Ltd. (1965) NMLR 374; .Kano State Oil and Allied Products Co. Ltd. (1996) 3 NWLR (Pt. 436) 244 per Adio, JSC; LSDPC V. Nigerian Land & Sea Food Ltd. (1992) 5 NWLR (Pt. 244) 653; Union Beverages Ltd. V. Pepsi Cola International Ltd. (1999) 3 NWLR (Pt. 330) 1. PER – BIOBELE ABRAHAM GEORGEWILL JCA

PROOF OF SPECIAL DAMAGES – THE POSITION OF THE LAW ON PROOF OF SPECIAL DAMAGES

It is not the law that proof of special damages must be above preponderance of evidence or beyond balance of probabilities as it is still a claim of a civil nature. In law therefore, all that a Plaintiff who claims special damages need do is to lead the clearest of evidence accurate on the specifics of his special damages claim and verifiable on his evidence. He need not put in any documentary evidence if the viva – voce evidence is credible, sufficient with specifics in line with his special damages claims. In other words, documentary evidence, though desirable and the best where available, is not a sine quo none or indispensible in proof of special damages. PER – BIOBELE ABRAHAM GEORGEWILL JCA

SPECIAL DAMAGES – WHAT TYPE OF EVIDENCE WOULD THE COURT RELY ON IN PROOF OF SPECIAL DAMAGES

In law, evidence which is neither challenged nor controverted and is credible is good evidence on which the court should rely and act even in proof of special damages claim.. See Adim V. Nigeria Bottling Co. Plc & Anor. (2010) 9 NWLR (Pt. 1200) 543. See also Agbaye V. James (1967) NMLR 49; Agunwa V. Onukwe (1962) 1 All NLR 537; Okenzua V. Amosu & Anor. (1992) NWLR (Pt. 248) 416 per Kawu, JSC.. PER – BIOBELE ABRAHAM GEORGEWILL JCA

TORTIOUS LIABILITY – THE POSITION OF THE LAW ON A CLAIM FOR TORTIOUS LIABILITY

The law is that in a claim for tortuous liability, unlike in contract where damages must be strictly within the contemplation of the parties at the time of the contract, general damages need not even be pleaded or specifically claimed or proved since they are presumed in law. See Odulaja V. Haddad (1973) 11 SC (Reprint) 216. See also Hon Osuji V. Isiocha (1998) 3 NWLR (Pt. 111) 623. PER – BIOBELE ABRAHAM GEORGEWILL JCA

CASES CITED

STATUTES REFERRED TO

Illiterates Protection Law

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