CORAM

---

HELEN MORONKEJI OGUNWUMIJU, JUSTICE COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, JUSTICE COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, JUSTICE COURT OF APPEAL

---

PARTIES

---

EMEKA S. ENEMCHUKWU

APPELLANTS 

---

CHIMAROKE OKOYE & ANOR

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, ACTION, COURT, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES, JUDGMENT AND ORDERS

 

---

SUMMARY OF FACTS

This is an appeal against the Judgment of the Anambra State High Court delivered on 23/5/06 by Hon. Justice C.J. Okoli wherein his Lordship gave judgment in favour of the Respondents and dismissed the Appellant’s claims. In October 2003, the Appellant entered into an oral contract with the 1st Respondent to deliver one BMW 318 Saloon Car to the Appellant on or before the end of October 2003 at the price of N450,000 (Four Hundred and Fifty Thousand Naira). The Appellant made an initial payment of N300,000. On 8/10/2003, the 1st Respondent delivered a BMW car with a shift system to the Appellant after which the Appellant drove the car away and came back the next day to pay N50,000 and paid another N10,000 on 9/10/2003. The Appellant was then given a composite receipt for the three payments to cover the sum of N360,000 he had paid so far, leaving a balance of N90,000. The Appellant however returned the car to the 1st Respondent, alleging that the contract had been for a BMW car with an automatic gear system and not the shift gear system 1st Respondent had given to him and asked the 1st Respondent to refund his money. The 1st Respondent refused to refund the money. The Appellant initiated an action at the trial Court by a Writ of Summons and a Statement of Claim dated 14/3/05; claiming the sum of N650,000 (Six Hundred and Fifty Thousand Naira) damages being the present cost of vehicle the Respondents failed to deliver less N90,000; and 20% interest per annum on the Judgment till its final liquidation.

The 1st Respondent counter-claimed for the balance of N90,000 with interest and other damages. At the trial, the composite receipt issued by 1st Respondent to the Appellant for the N360,000 received was tendered by the Appellant to show that that he had indeed paid the said amount and marked as Exhibit P1. After considering the pleadings and Exhibit P1, the learned trial judge held that the 1st Respondent is entitled to the balance of N90,000 and interest at the rate of 5% per annum until payment and ordered that the Appellant take back possession of the car which had passed to him.

Dissatisfied with the judgment of the trial Court, the Appellant by a Notice of Appeal filed on 30/07/06 containing grounds of appeal has brought this Appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether the trial Court gave judgment against the weight of evidence before it.

 

---

RATIONES DECIDENDI

---

VALIDITY OF A CONTRACT – ESSENTIAL INGREDIENTS OF A VALID CONTRACT

---

“There are five ingredients that must be present in a valid contract. They are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these five ingredients are essential, and a valid contract cannot be formed if any of them is absent. See BFIG v BPE (2008) All FWLR (Pt. 416) 1915; ORIENT BANK (NIG.) LTD. v. BILANTE INTERNATIONAL LTD (1997) NWLR (Pt. 515) 37. …

… The five ingredients for creating a valid contract, I believe are present in this case. There is no dispute regarding that. Parties intended for the contract to be binding and enforceable. See Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt. 1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt. 1055) 478; Metibaiye v. Nareili International Ltd. (2009) 16 NWLR (Pt. 1167) 326; Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 57.” – Per OGUNWUMIJU, JCA

 

---

CONTRACT – MEANING OF CONTRACT

---

“… a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. According to Blacks Law Dictionary 8th Edition, a contract is defined as a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Per OGUNWUMIJU, JCA

 

---

TERMS OF CONTRACT – WHETHER PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT

---

“In civil matters, parties are bound by their agreement. The Courts generally do not interfere in the manner that parties choose to do business with each other as long as it is not criminal. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves. It is trite that where there is a valid contract agreement, parties must be held to be bound by the agreement and its terms and conditions.” – Per OGUNWUMIJU, JCA

 

---

EXECUTION OF DOCUMENT- POSITION OF THE LAW ON THE SIGNATURE OF PERSON ON A DOCUMENT

---

“In the absence of fraud, duress or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of contents in the document that are above his signature or that the contents have been brought to his attention. It does not matter that he did not read the contents of the documents before signing it. The general rule is that a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum as a defence in action against him. See Yadis Nigeria Ltd v. Great Nigeria Insurance Company Ltd (2000) LPELR-10365 (CA); (2001) 11 NWLR16 (Pt.725) 529; Orumwense v Amu & Anor (2008) LPELR-8573 (CA).” – Per OGUNWUMIJU, JCA

 

---

ADMISSIBILITY OF EVIDENCE – WHAT DETERMINES THE ISSUE OF ADMISSIBILITY OF EVIDENCE

---

“It is a settled position that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence, particularly documents depend, on the purpose for which it is being tendered. There are copious authorities in regard to admissibility of documents. This means if Exh P1 is relevant to the case at hand, it is admissible, and it is, what is more, the Appellant himself introduced it. See Elias v. Disu (1962) 1 All NLR. 214; Ogbunyiya & 5 Ors. v. Obi Okudo & 2 Ors. (1979) 6-9 SC. 32; (1979) ANLR 105 at, 112; (1979) 1 MSLR 731; (1979) 3 LRN 318 at 324; (1979) 6-9 SC (Reprint) 34; Kuruma v. R. (1955) A.C. 197 at 203; Oshurinde v. Akande (1996) 6 SCNJ 193 at 199 – 200; (1996) 6 SC. 193; A.K. Fadlallah v. Arewa Textile Ltd. (1997) 7 SCNJ 202 at 217; Agbahomovo & 2 Ors. v. Eduyegbe & 6 ors. (1999) 2 SCNJ 94 at 105; (1999) 2 Sc. 79 at 86; Okonji & 2 Ors. v. Njokanma & 2 ors. (1999) 12 S C. (pt.11) 150; (1999) 12 SCNJ 259 at 273-275; Alli & anor. v. Chief Alesinloye & 8 Ors. (2000) 6 NWLR (Pt. 660) 177 at 213. 215; (2000) 4 SCNJ 264; Ogbe v Asade (2009) 18 NWLR (Pt. 1172) 106.

In Nwabuoku v. Onwordi (2006) ALL FWLR (331) 1236 at 1251, the Supreme Court restated the position thus: –

“Admissibility of evidence is based on relevance. A fact in issue is admissible if it is relevant to the matter before the Court. In that respect, relevancy is a precursor to admissibility flowing from the above, what is not relevant is not admissible.”

See also; Fawehinmi v. NBA (No.2), (1992) 2 NWLR (105) 558 at 583; N.A.B. v. Shuaibu (1991) 4 NWLR (186) 450 at 465; Torti v. Ukpabi (1984) 1 SCNLR 214, Ogu v Manid Technology & Multipurpose Cooperative Society Ltd (2010) LPELR- 4690 CA. Furthermore, admissibility is governed by the purpose for which the evidence is sought to be admitted. See ACB Ltd v. Alhaji Gwagwada’s case supra at p. 277.

In Ishola vs UBN Ltd (2005) All FWLR (Pt. 256) 1202 at 1213, the Supreme Court held that:

“The Court can only use a document properly admitted before it for the purpose intended by the parties as pleaded unless the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it.”

– Per OGUNWUMIJU, JCA

 

---

DOCUMENTARY EVIDENCE – WHETHER A DOCUMENT INADMISSIBLE FOR A PURPOSE CAN BE ADMISSIBLE FOR ANOTHER PURPOSE – WHAT DETERMINES THE PURPOSE OF A DOCUMENT

---

“It is settled law that a document inadmissible for a purpose may be admissible for another purpose. See Onochie v Ikem (1989) 4 NWLR (Pt. 116) 458 at 466, Akinduro v Aloya All FWLR (Pt. 381) 1653 at 1674. The purpose is usually determined by the pleadings which is notice of the case a party intends to canvass at the hearing. See Obimiami Brick and Stones Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt. 16) 303 at 317; Wuyah v. Jama’a local govt., Kafanchan (2011) LPELR-9078 (CA).” – Per OGUNWUMIJU, JCA

 

---

CLAIM(S)/RELIEF(S) – WHETHER THE COURT CAN GRANT A RELIEF NOT CLAIMED

---

“It is trite law that a Court has no power to award to a claimant that which was not claimed. In Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493, Onu JSC observed:

“It is trite law that the Court is without power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this Court that it seems to me that there is no longer any need to cite authorities in support of it. We take the view that the proposition of the law is not only good law but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was not claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution, its duty in civil cases is to render unto every one according to his proven claim.” – Per OGUNWUMIJU, JCA

 

---

EVALUATION OF EVIDENCE – WHETHER THE FINDINGS OF A TRIAL JUDGE COULD BE ACCEPTED MERELY BECAUSE OF THE USE OF THE WORDS ”I BELIEVE”

---

“Evaluation of evidence entails much more than the Judge saying “I believe” or “I didn’t believe a witness”. There must be the reasons why the Court arrived at its conclusions for preferring one evidence to the other on Record. See Emirate Airline v. Promise Mekwunye (2014) LPELR- 22685 CA.” – – Per OGUNWUMIJU, JCA

 

---

BURDEN/ONUS OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES

---

“It is basic principle of law that a plaintiff or Petitioner as the case may be has the burden to prove the relief sought in the statement of claim or petition to obtain Judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim or the petition, and so the onus probandi rests on him. He must prove the affirmative content of his statement of claim or petition. Our adversarial system of justice demands that. The law of evidence is all about proof of a particular issue. Proof in its legal meaning is the process by which the existence or non-existence of facts is established to the satisfaction of the Court. Burden of proof can be divided into three categories:- The legal burden, the evidential burden, and burden on the pleadings.

In Buhari v. Obasanjo (2005) 7 SCNJ 1 at 47. Uwais CJN states thus:-

“In general, in a civil case the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced could not on the preponderance of evidence, result in the Court giving Judgment in favour of the party. These propositions are the product of Sections 135 to 139 of the Evidence Act, Cap 112 LFN 1990.”

Generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue. See Okechukwu v. Ndah (1967) NMLR 368; Akinfosile v. Ijose (1960) SCNLR 447; NBN LTD. v. Opeola (1994) 1 NWLR (pt. 319) 126. The burden rests on the party whether Plaintiff or Defendant who substantially asserts the affirmative of an issue. See MESSRS LEWIS & PEATS (NLR) LTD. v. A.F. AKHIMIEN (1976) 7 SC 157 at 169; KENNEDY v INEC (2010) LPELR-9134.” – Per OGUNWUMIJU, JCA

 

---

PLEADINGS – WHETHER PLEADINGS ARE SYNONYMOUS WITH EVIDENCE; EFFECT OF PLEADINGS NOT SUPPORTED WITH EVIDENCE

---

“Pleadings are not synonymous with evidence and so cannot be construed as such in the determination of the merits or otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned. The same principle of law goes for whatever defence a Defendant seeks to rely on in the process of demolishing the case against him. See Emegokwue v Okadigbo (1973) NMLR 129.” – Per OGUNWUMIJU, JCA

 

---

ERROR/MISTAKE IN JUDGMENT – WHETHER EVERY ERROR/MISTAKE IN A JUDGMENT WILL RESULT IN A JUDGMENT BEING SET ASIDE;

---

“There is no doubt that it is not every mistake or error of law in a judgment that is fatal to warrant its being set aside or vitiate same. The opinion of the learned trial judge in construing Exh P1 as a contractual instrument is an error in law.” – Per OGUNWUMIJU, JCA

 

---

ERROR/MISTAKE IN JUDGMENT – CIRCUMSTANCE WHERE ERROR/MISTAKE IN A JUDGMENT WILL RESULT IN A JUDGMENT BEING SET ASIDE

---

“However, to secure a reversal of the judgment, the Appellant must also show how the error of law complained of did in fact occasion a gross miscarriage of justice and or substantially affected the decision. See Oladejo Adewuyi Ajuwon v Fadeke Akanni (1993) 9 NWLR (Pt. 316) Pg. 182 at 205; Olubode v Salami (1985) 2 NWLR (Pt. 7) Pg. 282, A.G Ekiti & Ors v Victor Adegoke Adewumi & Anor (2002) 1 SC 47; (2002) LPELR-3160 (SC). In fact in Diamond Bank v Partnership Investment Co. Ltd (2009) 18 NWLR (Pt. 1172) Pg. 67, the Supreme Court held that no error of law or fact will vitiate a judgment if there are no other evidence to support the said judgment.” – Per OGUNWUMIJU, JCA

 

---

TERMS OF CONTRACT – WHETHER A COURT CAN AGREEMENTS OF PARTIES WHERE THE CONDITIONS ARE MET

---

“Although a Court is not expected to make or rewrite a contract for parties, it is expected to uphold contracts once the condition precedents are met.” – Per OGUNWUMIJU, JCA

 

---

CASES CITED

---

NONE

 

---

STATUTES REFERRED TO

---

Contract Law Cap 32 Laws of Anambra State 1991

Evidence Act, Cap 112 LFN 1990

 

---

CLICK HERE TO READ FULL JUDGMENT