CORAM

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BIOBELE ABRAHAM GEORGEWILL, JUSTICE, COURT OF APPEAL

FREDERICK OZIAKPONO OHO, JUSTICE, COURT OF APPEAL

FOLASADE AYODEJI OJO, JUSTICE, COURT OF APPEAL

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PARTIES

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IJESU FOODS NIG. LTD

APPELLANTS 

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GUINNESS NIG. PLC

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COMPANY LAW, COURT, CRIMINAL LAW AND PROCEDURE, JUDGMENT AND ORDER, LAW OF CONTRACT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Respondent instituted this matter before the High Court of Lagos State, Lagos Judicial Division wherein it claimed against the Appellant the sum of N37,395,239.97 as debt for products received; Interests; Cost of Litigation; amongst other reliefs.  In reaction, the Appellant alongside its Amended Statement of Defence, Counter Claimed against the Respondent for the sum of N78, 269,214.00 as money owed the Appellant by the Respondent; General Damages; Interest; and Cost of Litigation.

The case is in respect of dispute as to payment for products supplied by the Respondent to the Appellant under a distributorship agreement, entered into between the parties in 2008, and alleging refusal by the Appellant to make good its debt by making payments due to the Respondent, which it alleged was due payable from the Appellant to it as debt for products supplied to the Appellant and received by the Appellant but not yet paid for amounting to the sum of N37, 395, 239. 97. On its part, the Appellant did not only deny the claims of indebtedness made against it by the Respondent but also alleged that it was rather the Respondent that is indebted to it in the sum of N78, 269, 214. 00, as shown in the report of a firm of accountant engaged by the Appellant to carry out reconciliation of the accounts of the parties, and that this debt arose from the series and several failures of the Respondent to adhere to the agreement and arrangements between the parties, resulting to loss of profit and of disruption to the Appellant’s business, for which it filed a counter claim against the Respondent. At the end of the trial, the lower Court granted some of the reliefs of the Respondent, while the Counter Claim of the Appellant was dismissed. Dissatisfied with the said judgment, the Appellant had promptly appealed against it vide its Notice of Appeal containing nine Grounds of Appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether or not the Court below rightly held that the Respondent is entitled to the sum of N37,399,429.97 and post judgment interest based on the evidence before it?

Whether or not the Court below was right not to have granted the Appellant’s Counter-claim in the sum of N78,269,214 together with the ancillary claims despite the evidence before it?

 

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RATIONES DECIDENDI

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INSTANCE WHEN AN APPELLATE COURT WILL BE JUSTIFIED TO RE-EVALUATE EVIDENCE ON PRINTED RECORD

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“My lords, in law when an Appellant alleges that a trial Court had not properly evaluated the evidence led by the parties it is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if it finds that the trial Court had not done so, then to proceed to and re – evaluate the evidence in the printed record to determine if the trial Court had made correct findings borne out by the evidence as led by the parties. It is thus the law that it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) per Georgewill JCA. See also Williams V. Tinubu (2014) All FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (Pt. 217)347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709. –PER B. A. GEORGEWILL, J.C.A

 

 

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PARTIES AS WELL AS THE COURT, ARE BOUND BY THEIR PLEADINGS

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“My lords, I must state at once that in law parties are bound by the averments in their pleadings. Thus, both the parties as well as the Court are bound by the pleadings and therefore, neither the parties nor the Court have the liberty go outside the pleadings of the parties. The parties must navigate within the circumference of their pleading to prove or disprove any allegations by either of the parties. So, also the Court must focus its attention on, and consideration to, the pleadings of the parties as it cannot go outside of their pleadings to decide the issues submitted to it in their pleadings. See Emesekwe & Ors V. Igwe & Anor (2015) LPELR – 24904(CA); Unity Bank Plc. V. Solomon Owie (2011) 5 NWLR (Pt. 1240) 277 @ pp. 288 – 289”. –PER B. A. GEORGEWILL, J.C.A

 

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NATURE OF THE BURDEN OF PROOF IN CIVIL CASES

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“Thus, the initial evidential burden was on the Respondent to prove that the Appellant received the products as it alleged but had refused to pay for them. Once this burden is discharged the burden would shift onto the Appellant, since in civil cases the burden of proof is never static but shifts depending on who alleges what and who is to prove what until all the necessary burdens are either discharged or failed, to show that the Appellant is not indebted to the Respondent. See Kenfrank (Nig) Ltd. V. UBN Plc (2002) 15 NWLR (PT.789) 46. –PER B. A. GEORGEWILL, J.C.A

 

 

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DOCUMENTARY EVIDENCE CAN BE USED AS A TOOL IN RESOLVING IRRECONCILABLE CONFLICTS IN ORAL EVIDENCE

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“It is the law that where there are irreconcilable conflicts in oral evidence, as it is clearly in the evidence of CW1 on the one hand and the evidence of DW1 and DW2 on the other hand, and if there be documentary evidence, as it is surfeit in this case, they are to be used as hanger on which to access the veracity of the oral evidence. Thus, a party who pleads the content of a document is under obligation to produce such document for the Court to see since oral evidence cannot be admitted to either vary or expand the content of a document which in law should speak for itself. –PER B. A. GEORGEWILL, J.C.A

 

 

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DUTY OF PARTY TO RAISE AN OBJECTION TO THE ADMISSIBILITY OF A DOCUMENT TIMEOUSLY

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“There is no disagreement between the parties that Exhibits C4 and C5 were tendered and admitted in evidence without any objection challenging their admissibility. There is also no contention before us in this appeal that these documents are by law declared to be inadmissible in any event or that they are for any other reason than that they were tendered by CW1 inadmissible in evidence. In the circumstances, the Appellant who had through its learned counsel folded its hands akimbo while Exhibits C4 and C5 were tendered and admitted in evidence without any objection, and thus by consent of both parties, cannot now be allowed in law to raise any such objection, more so without the leave of this Court. Thus, in my view, and I so hold, the Appellant is forever bound by the choices its learned counsel made at the trial before the Court below. See Zeneca Limited & Ors V. Jagal Pharma Limited (2007) LPELR -8384 (CA), where Mshelia JCA.,had stated inter alia thus:

The position of the law is that an appellant will not be allowed to raise on appeal a point or issue that was not raised or canvassed or argued at the trial or considered by the trial court without the leave of that Appeal Court. The only exception is where issue of jurisdiction is involved, then it can be raised at appeal without any leave.” –PER B. A. GEORGEWILL, J.C.A

 

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CIRCUMSTANCES WHEN A PERSON OTHER THAN THE MAKER OF A DOCUMENT CAN TENDER SAME IN EVIDENCE

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“Let me also consider the position of the as regards Exhibits C4 and C5 being tendered in evidence by CW1, who admittedly is not their maker. Thus, are Exhibits C4 and C5 mere documentary hearsay as vehement contended by the learned counsel for the Appellant? I think not! These documents are simply computer – generated documents from the Books of the Respondent relating to the business of distributorship transactions between the Appellant and the Respondent. The CW1 is a Credit Officer of the Respondent who sated that he deals with the Books of the Respondent from which Exhibits C4 and C5 were produced and having certified them to be correct he can in law tender them in evidence without any inhibition, notwithstanding the fact that he was not directly involved with the said transaction or even that he was not yet a staff of the Respondent at the time of the said transactions, all these are immaterial to admissibility of entries in Books of corporate organization. See Sections 51 and 84 of the Evidence Act 2011; Section 311 of the Company and Allied Matters Act 1990. See Saleh V Bon Limited (2006) LPELR – 2991 (SC), the Supreme Court per Musdapher JSC., had stated inter thus:

“I entirely agree with the opinion of the Court below, that the mere fact that a Bank staff was not around when a customer’s bank account was opened was not enough to prevent the staff from testifying or giving evidence on customer’s account.”

See also Daudu V. FRN (2018) 10 NWLR (Pt. 1626) 169; Brila Energy Ltd. V. FRN (2020) Volume 1 ACEE 331 CA; Kate Enterprises Limited V. Daewoo (Nig) Limited (1985 2 NWLR (Pt. 5) 116; Ishola V. SGB (Nig) Limited (1997) 2 NWLR (Pt. 488) 405; Anyaebosi V. RT Briscoe Nig Limited (1987) 3 NWLR (Pt. 59 84, Igbodim V. Obianke (1976) 9 – 10 SC 179; NDIC V. K.B. &C Serv. Limited (2017) Vol 41 WRN 34; PD Hallmark Contractors Nig. Ltd & Anor V. Gomwalk (2015) LPELR  – 24462 (CA). –PER B. A. GEORGEWILL, J.C.A

 

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WHEN IS A DEBT SAID TO HAVE ARISEN?

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“Interestingly, on when in law it could be said that debt had arisen, in AG Adamawa State & Ors. V. AG Federation (2014) LPELR – 2322 (SC),the Supreme Court per Muhammed JSC, had reiterated inter alia thus:

“In financial terms, any amount of money which is still owed after some payment has been made is what is called a balance. It remains a debt on the neck of the debtor. Limiting it to financial dealings, ‘debt’…represents a sum of money due by certain and express agreement. It is a specified sum of money owing to one person from another, including not only obligation of debtor to pay, but right of creditor to recover and enforce payment.”

See also Olademo V Lagos Building Investment Co.Ltd (2010) LPELR-4735 (CA), where this his Court had opined inter alia thus:

“The usual way of proving a debt is by putting in the statement of account or secondary evidence where it is admissible.”

See further Okplewu V Okplewu & Anor. (2011) LPELR – 4056 (CA), this Court had opined inter alia thus: “Any creditor who claims a sum of money on the basis of the overall debit

balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at.” See also Olorunfemi V.  NEB Ltd (2003) 5 NWLR (Pt. 812) 1 @ pp. 24 – 25; Habib Nigeria Bank Ltd V. Gifts Unique Nigeria Ltd. (2004) 15 NWLR (Pt. 896) 408; Yusuf V. ACB Ltd. (1986) 1 -2 SC 49. –PER B. A. GEORGEWILL, J.C.A

 

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WHAT DOES DUE DELIVERY CONNOTE IN A CONTRACT FOR SALE OF GOODS

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“My lords, it is settled law that where there is a contract by which one party undertakes to supply the other with goods at a stipulated price, the seller is bound to deliver the goods and the buyer, upon accepting the delivery of the goods, is bound to pay the purchase price of the goods. Thus, in a contract for the sale of goods, due delivery requires the buyers acceptance of the goods delivered by the supplier and unless and until the buyer accepts and signs waybill, due delivery is not done. See Abacha V. Shell Petroleum Development Company of Nigeria Ltd(2013) LPELR – 20338(SC). See also Clement Horst Co. V. Biddel Bross (1912) AC 18. –PER B. A. GEORGEWILL, J.C.A

 

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WHERE EVIDENCE CALLED BY A PARTY IN A CIVIL CASE IS NEITHER CHALLENGED NOR CONTRADICTED, THE ONUS OR PROOF ON HIM IS DISCHARGED

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“Now, having found as fact as above that the Respondent proved by credible and cogent evidence, both oral and documentary, that it supplied its products to the Appellant and that the Appellant has failed to pay for the products it had duly received from the Respondent and further that the Appellant had on its part failed to show how and when it made payments to the Respondent for the supplies of products made to it by the Respondent, as reflected in Exhibits C4 and C5, I hold further that on the preponderance of the evidence led by the parties, which was clearly in favor of the Respondent whose evidence, both oral and documentary, remained uncontroverted by the Appellant, the Appellant discharged both the evidential burden as well as the onus of proof required of it by law and was therefore, rightly entitled to its claims as found rightly too and granted correctly by the Court below in its judgment delivered on 22/11/2019. See Ajero & Anor V. Ugorji & Ors (1999) LPELR  – 295 (SC), where Onu JSC., had stated inter alia thus:

“Indeed, the Court has by a host of decided cases stated that where evidence called by a Plaintiff in a civil case is neither challenged nor contradicted, the onus or proof on him is discharged on a minimum of proof.”

See also Onwugbelu V. Mezebuo & Ors (2013) LPELR  – 20401 (CA) –PER B. A. GEORGEWILL, J.C.A

 

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DUTY OF THE COURT TO CONSIDER THE WEIGHT TO BE ATTACHED TO ANY DOCUMENTARY EVIDENCE TENDERED BY AN EXPERT

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“I thought I should mention it here and now that the mere fact that a document is prepared or tendered by an Expert does not mean that the Court must accept and act on any or everything that it contains, hook, line and sinker! The Court still has a duty to consider the weight, in the light of the pleadings and evidence, including other documents, led before it, if any to be attached to any documentary evidence, even when tendered by an Expert before coming to a conclusion as to whether or not it establishes the fact stated therein. InFajemi V. Oni (2009) 7 NWLR (Pt. 1140) 223 @ pp. 276 – 277, it was emphatically held inter alia thus:

“The Court must be weary of admitting a report prepared by an Expert not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt.”

See also See Elukpo  & Sons Ltd. V. Federal Housing Authority (1991) 3 NWLR (Pt. 179)322 @ p 33; Bilie V. State (2016) LPELR – 40832 (SC); Waziri V. State (1997) 3 NWLR (Pt. 496) 689; Anya V. Anya (2014) LPELR – 24479 (CA). –PER B. A. GEORGEWILL, J.C.A

 

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CONSEQUENCE OF A FAILURE TO PROVE AN ALLEGATION OF FRAUD BEYOND REASONABLE DOUBT

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“This seems and sounds so strange to me because in law not only is fact pleaded and on which no evidence was led goes to no issue and is thus deemed as abandoned, and unless and until an allegation of fraud is not only supported by particulars and evidence led in proof thereof, and being fraud proof is beyond reasonable doubt being a criminal allegation, such an allegation of fraud remains bare and is truly a non-starter and useless in law. See PDP V.  INEC& Ors (2012) LPELR 9724 (SC) Nishizawa Ltd V. Jethwani (1984) 12 SC 234. See also UBA & Anor V.Alhaji Babangida Jangaba (2007) 11 NWLR (Pt. 1045) 247; Sanusi Bro Nig. Ltd V. C. C. E. S.A (2001) 11 NWLR (pt. 579) 566; Highgrade Maritime Services Ltd V. First Bank of Nigeria Ltd (1991) 1NWLR (Pt. 167) 290. –PER B. A. GEORGEWILL, J.C.A

 

 

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DUTY OF THE COURT WHERE AN EXPERT TENDERS A DOCUMENT

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“Here, it must be pointed out at once that in law the mere fact that a document is prepared or tendered by an Expert does not mean that the Court must accept and act on any or everything that it contains hook, line and sinkers. The Court still has a duty to consider the weight, in the light of the pleadings and evidence, including other documents, led before it, if any to be attached to any documentary evidence, even when tendered by an Expert before coming to a conclusion as to whether or not it establishes the fact stated therein. InFajemi V. Oni (2009) 7 NWLR (Pt. 1140) 223 @ pp. 276 – 277, it was emphatically held inter alia thus:

“The Court must be weary of admitting  a report prepared by an Expert not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt.”

See also Samabey International Communications Ltd. V Celtel Nigeria Ltd. (2013) LPELR-20758 CA); Elukpo  & Sons Ltd. V. Federal Housing Authority (1991) 3 NWLR (Pt. 179) 322 @ p 33; Bilie V. State (2016) LPELR – 40832 (SC); Waziri V. State (1997) 3 NWLR (Pt. 496) 689; Anya V. Anya (2014) LPELR – 24479 (CA). –PER B. A. GEORGEWILL, J.C.A

 

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AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE LOWER COURT WHERE SAME IS CORRECT AND NOT PERVERSE

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“In law therefore, once a trial Court, such as the Court below, had arrived at the correct findings and or conclusions, an appellate Court would have no business interfering with such correct findings and or conclusions and thus even if the reasons, which are the pathways navigated in arriving at the correct findings and or conclusions turns out to be wrong, an appellate court will still not interfere. It must be allowed to stand. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where 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….”

See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134 @ p. 179; Ukejianya V. Uchendu 19 WACA 46”. –PER B. A. GEORGEWILL, J.C.A

 

 

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PERSONS WHO CAN ACT ON BEHALF OF A COMPANY

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“The law is trite that a company is a juristic person but being an artificial person it acts through natural persons such as members of the Board of Directors, individual director, employers and agents. Officers of a company who are authorised to act on his behalf are competent and compellable witnesses in a Court of law if and when the transaction in which they acted become a subject of litigation. Furthermore, an officer employed by a company after the conclusion of a transaction who is fully briefed by his employers is also competent to act on behalf of the company who are his employers. See Interdrill Nigeria Limited Vs. United Bank for Africa Plc (2017) 13 NWLR (Pt. 1581) 52; Ishola Vs. Societe Generale Bank Nigeria Limited (1997) 2 NWLR (Pt. 488) 405; Union Bank of Nigeria Plc Vs. Jase Motors Nigeria Plc (1997) 7 NWLR (Pt. 513)387; First Bank of Nigeria Plc Vs. Ysokwa (2004) 5 NWLR (Pt. 866)371. – PER F. A. OJO, J.C.A

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Company and Allied Matters Act 1990

Evidence Act 2011 

High Court of Lagos State (Civil Procedure) Rules 2019

 

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