CORAM

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PARTIES

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EZEKIEL ONWUSULU

 

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MR. JOSEPH ZAMBWA

 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The case for the Appellant at the trial court that the Respondent sometimes in the months of October and November 2013, contracted him to supply 4, 300 (Four Thousand Three Hundred) blocks of six inches valued at N430, 000. 00 (Four Thousand Thirty Thousand Naira) and 500 (Five Hundred) bags of cement valued at N900, 000. 000 (Nine Hundred Thousand Naira) with the total cost of N1, 330, 00.00 (One Million, Three Hundred and Thirty Thousand Naira).Upon the initial upfront payment of N90, 000. 00 made to him (Appellant) by the Respondent, the Appellant set to work and delivered to the Respondent at the designated site, the aforementioned building materials which the Respondent after taking delivery of same used those material for the construction of a hostel at Zamaki Academy, the school which the Respondent is the owner. In addition to the N90, 000. 00 (Ninety Thousand Naira) paid up front, the Respondent also issued two post-dated cheques in the name of the Appellant. The one that is the UBA cheque for the sum of N540, 000. 00 dated the 6th February, 2014 was not honoured on the date of presentation. The other a Diamond Bank cheque dated 31st March, 2014 was also not honoured on the date of presentation to the Bank. This development, said the Appellant, was brought to the attention of the Respondent, who in his bid to appease him paid the sum of N300, 000. 00 (Three Hundred Thousand Naira) as additional part payment for the purchase of those materials after which the Respondent has failed or refused to pay the outstanding balance since then despite repeated demands. Hence, the Appellant instituted an action against him at the High Court of Adamawa State sitting in Yola vide the Writ of Summons and Statement of Claim wherein he claimed for the sum of N840, 000. 00 (Eight Hundred and Forty Thousand Naira) as special and general damages for the outstanding balance for materials supplied to the Respondent; N500, 000. 00 (Five Hundred Thousand Naira) as general damages; and cost of litigation. In response, the Respondent vide his Statement of Defence denied the claim that he has ever had any contractual dealings with the Appellant for the supply of materials as claimed by him, rather he contracted with one Emmanuel Egu who supplied him with 200 bags of Ashaka cement at the rate of N1, 800. 00 per bag: and 4, 000 blocks of 6 inches, at the rate of N100 per block, bringing the total cost of the items supplied to him to N760, 000. 00 (Seven Hundred and sixty Thousand Naira Only). The Respondent admitted though that the items above were supplied by Emmanuel Egu through the Appellant who was introduced to him by Emmanuel Egu as his friend. The Respondent claimed that the sum of N540, 000. 00 for 200 bags of cement and 4, 000 blocks of 6 inches supplied had been paid leaving a balance of N220, 000. 00(Two Hundred and Twenty Thousand Naira). At the end of the trial, the lower Court dismissed the claim of the Appellant in its entirety. Irked by this decision of the lower Court, the Appellant has appealed to this court on 5 (five) grounds vide the Notice of appeal.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether there existed a valid agreement/contract of sale of goods between the appellant and the Respondent for the supply of building materials. Whether there is evidence before the trial court showing that the appellant supplied to the Respondent building materials in the performance of the contract. Whether the appellant led credible evidence to prove his claims as required by law before the trial court to be entitled to Judgment.

 

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RATIONES DECIDENDI

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CONTRACTUAL RELATIONSHIP – CLASSIFICATION OF THE EXISTENCE OF CONTRACTUAL RELATIONSHIP BETWEEN PARTIES

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“So, talking about the existence, non-existence of a contract or agreement between contending parties, one necessarily have to look at the peculiar circumstances of any particular case. Where therefore, the contending parties have reduced into writing, the terms by which that relationship was to be regulated then in that case, it is certain that parties only need to fall back on the document which define the nature and terms of that relationship, in terms of the written contract or agreement between them. Where, a written contract or agreement was not in place, it does not necessarily hold that a contractual relationship does not exist between parties if circumstances of the case so dictate. From the array of authorities that I have come across, it is now settled that a contract could be in writing. It could also be in parol that is, oral. The law even allows the courts to infer the existence of a contract by the conduct of the parties where circumstances of the case so permit. See: Gomwalk Vs. Military Administration, Plateau State (1988) 7 NWLR (Pt. 538) 413, 433; Akinola Vs. Lafarge Cement Wapco Nigeria Ltd (2015) LPELR 246 330 (CA); Ano Lodge Hotels Ltd Vs. Marcantile Bank Nig. Ltd (1993) 3 NWLR (Pt. 284) 721; Attorney General, Rivers State Vs. Attorney General, Akwa Ibom State (2011) All FWLR (Pt. 579) 1023 1042; Adeniran Vs. Olagunju (2002) FWLR (Pt. 87) 825, 827; Damina Vs. Akpan (2011) All FWLR (Pt. 980) 1298, 1300; Akinyemi Vs. Odua Investment Coy. Ltd (2012) All FWLR (Pt. 620) 1215, 1219; Benue Cement Coy. Plc.Vs. Sky Inspection Nig. Ltd (2003) FWLR (Pt. 142) 109-112; Dahiru Vs Kamale (2006) All FWLR (Pt. 295) 616, 620.-

 

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CONTRACT – ELEMENTS OF A VALID CONTRACT

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“A good and valid contract is complete and consummated by the presence of those elements necessary or required for the formation of a contract namely, offer and acceptance; there was consideration. An intention to create legal relation can be inferred from the facts and circumstances of the case. The apex court, talking on the formation of contract and what it takes for a valid contract has held in Nneka BBB Manufactains Co. Ltd Vs. ACB Ltd (2004) 2 NWLR (Pt. 858) 54,554that: “It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention n. The two contracting parties must agree. In other words, there must be an offer and an acceptance…” See further decision in: Johnson Wax (Nig.) Ltd Vs. Sanni (2010) 3 NWLR (Pt. 1181) 235; Alhaji Shehu Ashaka Vs. Sampson Chidi Nwachukwu (2013) LPELR-20272(CA) –

 

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DOCUMENTARY EVIDENCE – NATURE OF DOCUMENTARY EVIDENCE VIS-A-VIS ORAL EVIDENCE

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“By that evidence of Dw2, the security guard, it is clear to me that all supplies made to the respondent were taken and a record of that supply was made in a book kept by them at the site. This being the position, it does not lie in the mouth of Dw2 or Dw1 or Dw3 to proffer evidence of a fact which is contained in a document. This is so because C is said to be more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence. In Egharenba Vs. Osagie (2010) All FWLR (Pt. 513) 1277, it was held: – “It is trite law that where there is oral as well as documentary evidence, the latter should be used as a hanger from which to assess the oral evidence. See the case of Fashanu V. Adekoya (1974) 1 All NLR (Pt. 1) 35 at 37-38; (1974) 6 SC 83; Kimdey & 11 Ors. V. The Military Governor of Gongola State &Ors (1988) 2 NWLR (Pt. 77)445; (1988) 5 SCNJ. 28 and B. Stabilini & Co. Ltd. V. Nwabueze Obasi (1997) 9 NWLR (Pt. 520) 293 at 305 CA. This is because, documentary evidence is said to be more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence. See the case of Ezemba V. Ibineme &Anor. (2004) All FWLR (Pt. 223) 1786, (2004) 14 NWLR (Pt. 894) 617, (2004) 7 SCNJ 136 at 157, (2004) 7 SC (Pt. 1) 45.” The record referred to by Dw2 was not tendered in evidence and this failure renders useless, the testimony of Dw1, Dw2 and Dw3 as it relates to the number or quantity of the bags of cement and cement blocks supplied and delivered to the respondent. Documentary evidence takes precedence over and above oral testimony of a witness covered by the relevant document. See Abubakar V. Waziri (2008) All FWLR (Pt. 436) 2025, 2047 (SC); FATB Ltd vs. Partnership Investment Company Ltd (2004) FWLR (Pt. 192) 167(SC); BON Ltd Vs. Salihu (1999) 9 NWLR (Pt. 618) 331, 346. The apex court in Nwanji Vs. Coastal Service (Nigeria) Ltd (2004) All FWLR (Pt. 219) 1150 (SC) a case where the appellant pleaded how goods were delivered and how way-bills were issued, held that it was bounded duty on the person relying on those waybills to tender them in evidence, failing which there was nothing to base the claim that those goods were delivered. –

 

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ADMISSION – FACTS ADMITTED NEEDS NO FURTHER PROOF

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“Facts admitted need no further proof. This is trite. See: Hosea Elinlanwo V. OlusolaOke (2008) 6-7 SC (Pt. 11) 123; Jitte V. Okpulor (2016) All FWLR (Pt. 820)1371. In this case, the respondent did not only admit those facts but the admission he made was against his own interest and this is admissible evidence against him as evidence of the fact that the appellant did not only supply building materials to him (respondent) which he collected but that there are still some outstanding payments to be made. This court has a duty to rely and act on those admitted facts: See: Owie Vs. Ighiwi (2005) All FWLR (Pt. 248) 1762, 1769-1770. In Odi Vs. Iyela (2004) All FWLR (Pt. 217) 570, 574, the apex court held thus: “If a witness called by a party gives evidence against that party, the evidence will be regarded as one against interest. Unless explanations are given which satisfy the court that the admission should not be regarded, due weight should be given to them as such” –

 

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EVIDENCE – WHETHER A CASE IS PROVED BY THE NUMBER OF WITNESSES

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“A case is not proved by the “quantity of witnesses”, rather a case is proved by the “quality of evidence” given in the matter. See: Iyere Vs. Bendel Feeds & Four Mills Ltd. (2008) 18 NWLR (Pt. 1119) 300, 344. It follows therefore that evidence of the plaintiff’s lone witness should not defeat his case if the quality of evidence adduced by him was such that there is no option but for the court to enter Judgment for him. Civil matters, as in the instant case, are decided on the preponderance of evidence or on balance of probabilities. See: Dauda Vs. NWPC (1988) 2 NWLR (Pt. 538) 335. –

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Not Available|

 

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