Alhaji Musa Bello & Anor V. Farmers Supply Company (Kds) Limited (1998)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The respondent sued the appellants before the High Court of Justice Kaduna by a writ of summons. In paragraph 39 of its statement of claim it claimed as follows:-
“Whereof the plaintiff claims against the 1st and 2nd defendants (jointly and severally) as follows:
(a) The sum of $190,516.00 (United States dollars – One hundred and ninety thousand, five hundred and sixteen dollars only) or its Nigerian naira equivalent of N4,191,352.00 (Four million, one hundred and ninety one thousand, three hundred and fifty two naira) at the 1995 official exchange rate of N22.00 (Twenty two naira) to $1.00 (United States – One dollar only) being money had and received and or payment made by the plaintiff to the defendants for the supply of specified agro-chemicals (agro-products) to wit, Ingram Cambi 500 EC, Gardonprim A500FW, Apron Plus 50 D5 and Plytrine 440FC upon the quotation submitted by the 1st defendant and the issuance of purchase orders Nos. 316,317,318 and 319 all dated 20th July, 1990 with 180 days as the validity and or delivery durational period and which said ordered goods the defendants have failed, neglected and or refused to honour and fulfil their respective contractual and or quasi contractual obligations despite repeated and persisted demands made by the plaintiff in respect thereof.
(b) Interest at the rate of 21 % (Twenty one per cent) per annum on the stated sum of N4,191,352.00 (Four million, one hundred and ninety one thousand, three hundred and fifty two naira) with effect from 21st January, 1991 until judgment is delivered and thereafter at the rate of 10% (Ten per cent) until eventual liquidation:’
The appellants filed a joint statement of defence admitting some paragraphs of the statement of claim and denying others. One Abbas Mohammed Ayatudeen, an auditor with the respondent gave evidence on its own behalf to the effect that the appellants were given a contract to supply some agro-chemicals to the respondent in the total sum of 238,145 U.S. dollars as per four LPOs received in evidence as Exhibits A1-A4. It was pan of the agreement that on the importation of the chemicals to Nigeria the appellants would be paid 80% of the contract sum and when the goods were cleared and transported to Kaduna, they would be paid the balance of 20% of the contract sum.
On the 10th of August, 1990 the appellants wrote a letter to the respondent requesting for the payment of 80% of the contract value and forwarded some shipping documents to show that the chemicals had been imported. 80% of the contract sum was eventually paid to the appellants in an account in London. The appellants collected back the shipping documents to help to clear the goods and demanded a huge sum of money for the clearing. The respondent did not agree with the sum claimed. The respondent asked the appellants to return the shipping document but they were not returned. When the respondent formed the impression that the goods were not imported as claimed by the appellants, they decided to sue for the recovery of the money already paid to the appellants.
The 1st appellant who is the managing director of the 2nd appellant gave evidence on behalf of himself and the 2nd appellant. He confirmed that the 2nd appellant was awarded contracts for the supply of agro-chemicals by the respondent and that they actually imported these chemicals and sent the shipping documents to the respondent to arrange clearance of the goods as that was not part of their agreement. The respondent asked them to clear the goods and they demanded a down payment of N450,000 for the clearance but the respondent failed to meet their demand with the result that they lost interest in the clearance. He confirmed the payment of 80% of the contract sum to the 2nd appellant and not himself. Under cross-examination the 1st appellant said that the shipping documents did not contain bills of entry and cargo arrival notice as well as liner bill of lading. He said that he could not remember the date the goods arrived at the Nigerian port and did not know the name of the ship owner, but that he forwarded the bill of lading to the respondent and the bill of lading had the name of the ship in it.
The trial court after listening to addresses of counsel gave judgment in favour of the respondent as claimed by it. Dissatisfied with that judgment the appellants appealed to this court, and in accordance with the rules of court tiled a brief of argument and identified four issues for determination. In the course of the argument of this appeal the learned counsel for the appellants abandoned issues 2 and 3 of the appellants’ issues and the arguments thereon and they are accordingly struck out. The surviving issues are as follows:-
“Issue 1. Whether on the totality of the evidence before the lower court the learned trial Judge properly directed himself when he held that the appellants failed to discharge their own part of the agreement.
Issue 4 re-numbered 2:
Whether there is any evidence before the lower court which suggests that the 1st appellant was paid and indeed received payment of 80% of the contract sum in his personal capacity thereby making him a proper party to the suit:’
The learned counsel for the respondent also filed a brief on behalf of his client and identified three issues for determination. In the course of the argument of the appeal he abandoned issue 2 and all the arguments thereon and they were accordingly struck out. The surviving issues are as follows:-
“Issue 1. Whether on the totality of evidence adduced before the trial court and on the balance of probabilities, the trial court was right to hold that the appellants did not (discharge the burden of proof placed on them as per the state of pleadings and issues joined thereon.
Issue 3 re-numbered 2:
Whether or not the 1st appellant into whose personal and private foreign bank account the 80% contract sum was paid into was a proper party to the suit’)”
The learned counsel for the appellants submitted under issue I that the trial court was wrong to hold that the appellants failed woefully to discharge their own part of the agreement to impart the chemicals Slated in Exhibits A1 – A4. He said that the pleadings and the oral testimonies of witnesses called by both parties before the lower court proved eminently the importation of the chemicals. He argued that upon the presentation of genuine and valid shipping documents the respondent paid 80% of the total value of the goods ordered to the appellants. The learned counsel submitted that the 1st appellant gave clear evidence that the goods were imported and the shipping documents were presented to the respondent which confirmed that the goods were imported before it paid 80% of the contract Slim. He submitted that evidence led on facts pleaded which is uncontradicted and not discredited by cross-examination should be relied upon. He relied on the following cases:- A.I. Egbunike & Anor. v. African Continental Bank Ltd. (1995) 2 NWLR (Pt.375) 34; (1995) 2 SCNJ 58 at 78 lines 14-16; Oyibo Iriri & Ors. v. Eseroraye Erhurhobara (1991) 2 NWLR (Pt.173) 252; (1991) 3 SCNJ 1 at 8 – 9; Obmuami Brick and Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260; (1992) 3 SCNJ 1 at 35 lines 12 to 14. The learned counsel said that if the trial Judge had appraised the evidence properly she would have come to the conclusion that the appellants imported the goods contracted for.
The learned counsel for the respondent replied on the 1st issue that the trial Judge was right in holding that the appellants failed to import the goods contracted for. He said that the appellants jointly and severally admitted paragraphs 1, 2, 4, 7, 8, 9, 12, 13, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the respondent’s statement of claim through paragraphs 1, 2, 4, 6 and 18 of their joint statement of defence and they cannot therefore give any evidence contrary to the pleadings. He said that averments in the statement of claim just admitted in the statement of defence requires no evidential proof on the authority of Egbunike & Anor v. African Continental Bank Ld. (1995) 2 NWLR (Pt.375) 34. He said that the appellants did not discharge the burden of proof which shifted to them on the state of pleadings and the issues joined that they actually imported the goods ordered before the 80% of the contract sum was paid to them on the presentation of genuine shipping documents.
It is not disputed that the appellants were given a contract to supply some agro-chemicals to the respondent in the total sum of $238,145 U.S. dollars and the appellants were to be paid 80% of that sum on the importation of the goods and the balance of 20% when the goods were cleared and transported to Kaduna. The appellants submitted shipping documents to the respondent, and based on that the respondent paid 80%k of the contract sum to the appellants but as it turned out, the clearing of the goods became a problem. The appellants undertook to clear the goods and retrieved the shipping documents but never did so, and failed to return the documents to the respondent to make alternative arrangements. Faced with the evidence before her the learned trial Judge DonIi J., took the view that the appellants could not satisfy the court that they actually imported the goods. At page 49 of the record of appeal, she stated her position as follows:-
“Furthermore, D.W.1 stated that he did not know the ship owner, or the name of the ship. He did not know when the goods arrived. Which of the documents he sent to the plaintiff under the umbrella of shipping documents has not been identified by him D.W.1 as to the one that showed with clarity that the goods entered the Nigerian shores. The goods have not been seen by the plaintiff and the F defendant has not said what happened to the goods when the contract of clearance and forwarding (sic). It is in this regard that I hold that the defendants failed woefully to discharge their own part of the agreement to import the chemicals stated in Exhibits A1 – A4 for the plaintiff The onus on the defendant regarding paragraph 26 of their statement of defence had not been discharged.”
This conclusion cannot be faulted. This is because the mere presentation of shipping documents does not prove conclusively that the goods imported had actually arrived in Nigeria. The appellants undertook to clear the goods and were unable to do so. The law is clear that it is the duty of a trial court to assess the evidence before it before coming to a decision, and it is not the duty of an appeal court to interfere with the findings of facts made by the trial court unless they are perverse. See Abudu Karimu v. Daniel Fajube (1968) NMLR 151 and Anukanti v. Ekwonyeaso (1978) 1 S.C. 37. I see no cause whatsoever to interfere with the learned trial Judge’s findings of facts that the appellants woefully failed to prove that the goods contracted for were actually imported.
By the state of pleadings and of the case the burden to prove that they actually imported the goods fell on the appellants, and that burden they were unable to discharge. See Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 and Moses Ola & Sons (Nig.) Ltd. & Ors v. Bank of the North Ltd. & Anor. (1992) 3 NWLR (Pt.229) 377.On the 2nd issue the learned counsel for the appellants submitted that there is no evidence before the lower court to suggest that the 1st appellant was paid and indeed received payment of 80% of the contract sum in his personal capacity and the court was therefore wrong to have treated him as a proper party to the suit and liable to the respondent.
The learned counsel for the respondent submitted that the appellants admitted in their statement of defence that the money was paid on the order of the 2nd appellant to the 1st appellant and therefore that fact did not require any more proof.
The answer to this issue is relatively simple. It is a cardinal principle of pleadings that a matter or a fact which is admitted does not require any proof. Such fact is taken as proved and any evidence which is at variance with pleadings must be discountenanced. See the case of Odumosu v. African Continental Bank Ltd. (1976) 11 S.C. 55. See also the case of Akibu v. Oduntan (1992) 2 NWLR (Pt.222) 210. The respondent specifically pleaded in paragraphs 12 and 13 of the statement of claim that the 2nd appellant instructed that the money should be paid to the 1st appellant and that was done. Paragraphs 12 and 13 read:-
“12. Plaintiff further avers that the payment was accordingly made as requested and same was subsequently confirmed by the 2nd defendant in correspondence exchanged between the parties.
- Plaintiff states that pursuant to fresh instructions received from the 2nd defendant, the beneficiary of the payment as made was varied, amended and or altered to the favour of the 1st defendant. Plaintiff hereby pleads and shall place reliance at the hearing on the letter written by the 2nd defendant and the minutes minuted on the reverse side by its M.D. seeking amendment/variation regarding the payment so made – letter dated 7th September, 1990 with Ref. F No. MIL/KAD/123/IX/90 headed “Payment for various chemicals.”
In the appellants’ statement of defence paragraph 6 thereof the appellants admitted paragraphs 12 and 13 of the claim in the following words:-
“The defendants admit paragraphs 12 and 13 of the claim.”
With this admission any contrary evidence denying that the 1st appellant received the money goes to no issue. It also follows from this admission that the 1st appellant was a proper party to the suit.
For all I have said in this judgment it is my firm view that the decision of the trial court cannot be faulted. Accordingly I dismiss this appeal and affirm the decision of the trial court. The respondent is entitled to costs of N2,000.00 against the appellants.
Other Citations: (1998)LCN/0468(CA)