DAVID KUMBUL V. DAVID UMEH

CORAM

PARTIES

DAVID KUMBUL APPELLANTS

DAVID UMEH RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

Sometime in 1997 the Benue cement company plc. (BCC PLC) requested the Respondent to supply her with a torque converter machine at the sum of N600, 000. The Respondent approached the Appellant to facilitate the procurement of the said machine at a commission of N50,000 and a written agreement was made to that effect. The cost of the machine was subsequently reviewed upward to N800, 000 by the BCC PLC and this led to a disagreement between the parties as to the rightful beneficiary of the review and it was later resolved that the Appellant should pay the total sum of N550, 000 to the Respondent for the machine. He was instantly paid the sum of N300, 000 leaving a balance of N250,000 and an agreement was written to that effect. The Respondent sometime thereafter advanced a loan of N5000 by cheque to the Appellant which was also evidenced in writing. It however took some pestering for the Appellant to pay part of the money in branches of N40,000, N10,000 and N70,000 thus leaving a balance of N130, 000 out of the outstanding N250,000 for the machine and adding the N5000 loan brings the total sum claimed to N135,000. The Appellant however, claimed to have liquidated any money he owed the respondent. This caused the Respondent sued the Appellant before the High Court of Benue State, Gboko Judicial Division, claiming the sum of N135,000.00 as debt owed him by the Appellant. The lower Court delivered judgment against the Appellant for a total sum of N135,000.00, who consequently appealed against same to this Court vide his Notice of Appeal.

HELD

Appeal Dismissed

ISSUES

Whether Exhibits A and C form one contract evidencing the payment of N50,000 commission or whether appellant failed to me mention the said commission in his subsequent dealings with the respondent. Whether the sum of (N70,000) seventy thousand naira admitted to have been paid by the appellant to the respondent through the police at Makurdi does not form part of liquidation of the sum of N135,000 and same ought to and must have been documented. Whether paragraphs 11 and 13 of the statement of defence amounted to general denials and whether the decision of the court below can be supported having regard to the evidence before the court.

RATIONES DECIDENDI

BURDEN OF PROOF – THE BURDEN OF PROOF IS ON THE PARTY WHO ASSERTS AND THE OF FURTHER PROOF IS ON THE PERSON WHO WILL FAIL IF SUCH EVIDENCE WAS NOT ADDUCED

The burden of proving a particular fact rests on the party who asserts it. Though this onus does not remain static in civil cases, it shifts from one party to the other where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced. In the instant case the respondent asserted that he made payments of N70,000 in two instances, the second one being at the police station, Makurdi, he did not however state when and how the first payment was made neither was any document tendered in proof of such as had become customary in his dealings with the respondent. In the circumstance, he is taken to have failed to discharge the onus placed on him to prove the assertion. See OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT 147) 723: DURU V. NWOSU (1989) 4 NWLR (PT 113) 24: IKE V. UGBOAJA (1993) 5 NWLR (PT 301) 539. –

PLEADINGS – A PROPER TRAVERSE IS A COMPLETE AND SUFFICIENT DENIAL, WHICH HAS THE EFFECT OF JOINING ISSUES BETWEEN THE PARTIES

Now, a traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the plaintiff the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. See OKOROMAKA V. ODIRI (1995) 7 NWLR (PT 408) 411 AND U.B.N PLC V. SCPOK (NIG) LTD. (2005) 2 NWLR (PT 910) 241. In NNPC V. SELF (2004) ALL FWLR (PT 223) 1859 this court relying on the case of OSENI V. DAWODU (1994) 4 NWLR (PT 339) 390 held that if a defendant refuses to admit a statement of claim, he must state so expressly and specifically, and he does not do this satisfactorily by merely pleading that he is not in a position to admit or deny a particular allegation and/or that he will at the trial put the plaintiff to the strictest proof thereof. But in BUHARI V. OBASANJO (2005) ALL FWLR (PT 258) 1604 or (2005) 2 NWLR (PT 910) 241 this same court citing the case of ARCHIBONG V. ITA (2004) ALL FWLR (PT 197) 930 held that a denial by simple traverse that defendant does not admit an allegation is sufficient traverse. This is because, where a defendant specifically denies a fact averred by the plaintiff and goes further to put the plaintiff to strict proof of it thereof, issue is clearly joined in the matter.It seems to me however that the sufficiency or not of a traverse depends on the mode of couching. See OSAFILE V. ODI (1994) 2 NWLR (PT 325) 125. –

COURT – NOT EVERY ERROR IN A JUDGMENT WOULD LEAD TO A REVERSAL BUT ONLY ERRORS THAT LEAD TO A MISCARRIAGE OF JUSTICE

It is trite law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate court can only do so where such error or mistake has led to a miscarriage of justice and without the error a different decision would have been arrived at by the trial court. See AMAYO V. EFERINMWINGBO (2005) 11 NWLR (PT 992) 669. BANKOLE Vs PELU (1991) 8 NWLR (PT 211) 523 MORA V. NWALUSI (1962) 2 SCNLR 73. –

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|

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