Bendel Pilgrims Welfare Board V. Alhaji Wahabi Irawo (1994)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIO, J.C.A. 

This is an appeal from a judgment of Oki, C.J. of the then High Court of Bendel State (but now Edo State) sitting in Benin City, in Suit No. B/181/83 delivered on 27th October, 1988, wherein he dismissed in its entirety the plaintiff’s claim against the defendant for the sum of N101,001.00 being balance of debt owed the plaintiff by the defendant in respect of Hajj operations in 1977/1978. The plaintiff being dissatisfied with the said judgment has now appealed to this court.

At the trial court the claim of the plaintiff was worded as follows:-

Sometime in 1978 the plaintiff handed some control cards for pilgrims travelling to Saudi Arabia to the defendant in Benin-City within the jurisdiction of this Honourable Court. The control cards were to be sold at N691.00 per card or returned to the plaintiff. The defendant sold all the control cards, paid part of the money to the plaintiff and has since refused, neglected and failed to pay the balance to the plaintiff despite repeated demands.

The plaintiff’s claim against the defendant is for the sum of N101,001.00 (One hundred and one thousand and one naira) being the balance of the debt which the defendant owed the plaintiff.

The plaintiff also claims interest at 10% from October, 1978 till judgment in this suit.”

In the statement of claim which was later filed in this case, the facts were further elaborated upon as follows:- The plaintiff was a State owned Board set up by the then Bendel State Government to handle the welfare of pilgrims performing pilgrimage to holy lands. The defendant on the other hand was at all material times a Pilgrims Assistant and ran a Pilgrims Agency. It appears that as a Pilgrims Agent, the defendant was usually given a number of control cards to sell to intending pilgrims, and later to render account of such sales to the Board. In respect of 1977 operations, the defendant was indebted to the plaintiff to the tune of N163,277.00 (There was no indication as to how many cards were sold to realize this amount). However, in respect of 1978 operation, the evidence was that the defendant was given 200 control cards to sell at N691.00 each. The defendant sold the cards at a total cost of N138.200.00. So, as at the time of the 1978 Hajj operations the defendant was owing plaintiff the sum of N163,277.00 for 1977 plus N138,200.00 (for 1978) making a total of N301,477.00. The defendant later made various cash payments and bank lodgment to the plaintiff, which totalled N200,476.00. When the total payment of N200,476.00 was deducted from total indebtedness of N301,477.00, that left a debit balance of N101.001.00, which was the amount being claimed from the defendant with interest as mentioned above. The defendant in his statement of defence admitted at paragraph 2 that he owed the plaintiff a total of N49,752.00. He then went further at paragraph 3 to aver that he was never given 200 control cards or any card at all for 1978 as pleaded in paragraph 6 of Statement of Claim. He contended that he had paid more than the amount credited to him by the plaintiff to Alhaji Haruna Aliu, the former chairman of the Board, for onward payment into the Board’s Bank Account, and that he will tender all his receipts at the trial of this action.

However, soon after the matter went to Court, there was a move for settlement during which it was admitted on both sides that the defendant had made further payments totaling N40,000.00 during the pendency of the case in court. During that time, the defendant was also said to have developed eye trouble, which caused him to be hospitalised both in this country and overseas for a long time. Even after he came back from overseas, he still did not attend court even for one day. As a result, the matter was finally determined, based only on the evidence given by plaintiff’s only witness, one Alhaji Ahmed Tijani Momoh, (P.W.1) who was the Secretary of plaintiff’s Board.

After hearing the evidence of P.W.1, and taking addresses of learned counsel on both sides, the learned trial Chief Judge gave a reserved judgment in which he dismissed plaintiff’s claim in its entirety, without giving cognisance to the fact that defendant had himself admitted owing the sum of N49,752.00 to plaintiff, out of which N40,000.00 was said to have been paid to plaintiff during the pendency of this case in a move for settlement.

The plaintiff being dissatisfied with the said judgment now appealed to this Court on three grounds. It is unnecessary to set out the grounds as they were later subsumed by the issues for determination formulated. Briefs of arguments were later filed and exchanged and issues for determination formulated.

The plaintiff who will hereinafter be referred to as the appellant formulated four issues as follows:-

“(a) Whether the learned trial Judge was right when he dismissed the appellant’s case despite the fact that the evidence given by the appellant of the respondent’s indebtedness was never challenged by evidence in rebuttal.

(b) Whether the learned trial Judge was right in dismissing the appellants’ case in its entirety when the respondent admitted that he was indebted to the appellant to the tune of N49,752.00.

(c) Whether the learned trial Judge was right to have set the pleadings of the respondent against the unchallenged evidence of the appellant.