Alfa Ramoni Womiloju V. Madam Abosede Kiki & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Ota, Ogun State delivered on the 6th of June 2003. Briefly by a Writ of Summons and Statement of Claim dated the 16th of March 1999, 1st Respondent claimed against the Appellant at the lower Court in the sum of N486,602.00 (Four hundred and eighty six thousand, six hundred and two naira only) being the two instalmental payments of N243,301.00 (Two hundred and forty three thousand, three hundred and one naira only) each due for payment on 9/12/97 and 9/12/98 respectively as per Promissory Agreement for the settlement of a total debt of N729,903.00 (Seven hundred and twenty nine thousand, nine hundred and three naira only) entered into between the 1st Respondent and the Appellant on 9/12/96. The Appellant refused and or neglected to pay despite repeated demands. 2nd Respondent claimed against the Appellant the sum of N400,000.00 (Four hundred thousand naira only) being the two instalmental payments of N200,000.00 each due for payments on 9/12/97 and 9/12/98 respectively as per Promissory Agreement for the settlement of a total debt of N515,000.00 (Five hundred and fifteen thousand naira only) entered into between the 2nd Respondent and the Appellant on 9/12/96. The Appellant refused and or neglected to pay despite repeated demands.

1st Respondent sought the intervention of the Ado-ado town Council of Chiefs to recover the money from the Appellant. Appellant sought permission to settle the indebtedness instalmentally. He executed a Promissory Agreement dated 9th December, 1996 in favour of the Respondents for the payment of the aforesaid debts. When the Appellant failed to settle the indebtedness this action was filed at the High Court of Justice, Ogun State to recover the debt.

1st Respondent who was the 1st Plaintiff at the trial Court called four witnesses and tendered exhibits A-E while the Appellant who was the Defendant at the trial court called two witnesses and tendered Exhibits F-G. The trial Court gave judgment to the 1st Respondent in the sum of N486,602.00 as stated in Exhibit A. The trial Court dismissed the 2nd Respondent’s case who was the 2nd Plaintiff at the lower court.

The Appellant being dissatisfied with the judgment appealed to this court. With the leave of this Court, Appellant filed on the 13th of November, 2006 a notice of appeal containing 3 three grounds of appeal. Appellant’s brief was filed on the 18th of March, 2008. 1st Respondent’s brief of argument was filed on the 29th of April 2008. Appellant also filed a reply brief on the 11th of June 2008. At the hearing of the appeal, learned Counsel to the parties adopted their respective briefs and relied on the arguments contained therein.

Learned Counsel for the 1st Respondent informed the Court that the appeal is basically between the Appellant and the 1st Respondent.

Learned Counsel for the Appellant distilled two issues for determination from the three grounds as follows:

(1) Whether there was an enforceable agreement between the Appellant and the 1st Respondent as evidenced by Exhibit A

(2) Whether there was any evidence in support of the judgment of the trial Court.

Learned Senior Counsel for the 1st Respondent formulated one issue thus:

Whether the 1st Respondent’s claim was not made out against the Appellant to entitle her to the judgment sum.

The appeal will be considered on the two issues formulated by the Appellant’s Counsel.On issue one Learned Counsel for the Appellant submitted that Exhibit A is not a customary arbitral award. He referred to the case of EHOCHE VS. IJEGWA (2003) F.W.L.R part 154 pages 587 at 596- 597. He went further to state that Exhibit A was not a judgment of terms of settlement before a Court of law or an arbitral tribunal. He cited AFEGBAI VS. A.G. EDO STATE (2001) F.W.L.R part 69 at page 1325 Exhibit A was not a contract between the parties as it does not create any right in favour of any of the parties. Since there is no consideration flowing between the parties, the exhibit does not amount to a valid and enforceable contract.

Learned Counsel for the Appellant argued that the onus is on the 1st Respondent to prove that she owed Jonas Petroleum Plc, that the debt arose from the accounts of the Appellant and since she was the one who alleged that the document was shown to her by Jonas Petroleum official, she ought to have either called the official who showed her the document or produce the document at the trial. In the absence of such evidence, learned Counsel for the Appellant submits that 1st Respondent has not discharged the burden on her. He referred to the case of KARA VS. WASSA (2001) F.W.L.R part 78 page 1191 at 1206. He submitted further that Appellant was not under any threat of litigation such that exhibit A would have amounted to a forbearance to sue. Since Exhibit A was neither a contract, consent judgment nor a customary arbitral award, the trial Judge ought not to have relied on it to give judgment in favour of the 1st Respondent in the sum of N486,602.00 (four hundred and eighty six thousand, six hundred and two naira). He argued that the test for admissibility of documents under the Evidence Act has nothing to do with the enforceability of the terms contained therein. He contended that Appellant was intimidated and forced to sign Exhibit A. Learned Counsel urged the Court to resolve issue one in favour of the Appellant.

Learned Senior Counsel for the 1st Respondent on issue one submits that Exhibit A is an admissible document which the Appellant never objected to at the trial. He did not challenge the document at the point of tendering that it was executed under undue influence or duress. Learned Senior Counsel submits that Appellant cannot at this stage claim that it is not enforceable. He buttressed his argument with the provision of Section 132 of the Evidence Act which states: