C. N. Okpala & Sons Limited V. Nigerian Breweries Plc (2017)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Benin Division delivered on 8th September, 2005 wherein the lower Court set aside the judgment of the learned trial Judge which was in favour of the present appellant as plaintiff. Not being satisfied with the setting aside of the judgment it won at the trial Court by the Court below, the appellant has appealed to this Court. A brief statement of the facts will suffice.

The appellant which was a customer of the respondent obtained the leave of the High Court of Edo State, sitting in Benin to institute an action against the respondent, wherein it claimed as follows in paragraph 10 of its statement of claim:

a. A declaration that the plaintiff is entitled to the immediate supply to the plaintiff 1,400 cartons of star beer (sic) and 2100 cartons of Gulder beer by the defendant.

b. An order of Court compelling the defendant to supply to the plaintiff 1,400 cartons of star beer and 2,100 cartons of Gulder beer.

c. Alternatively, the payment of the sum of N10M. (Ten Million Naira) being special and

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general damages made up as follows:-

SPECIAL DAMAGES:

i. Amount deposited – N523,95.50

ii. Anticipated profit – N104,000.00

iii. Solicitors fees – N50,000.00

TOTAL N678,495.00

iv General Damages for Breach of Contract for supply of Beer – N9,321,504.00

GRAND TOTAL N10,000,000.00

The defendant, the respondent herein denied the above averment in paragraph 14 of its statement of defence and further contended that:

a. The plaintiff has utilized the value of his cheque covering Invoice No. 014650,

b. The plaintiff collected products to the value of his cheque covering Invoice No. 014650.

c. The plaintiff is not entitled as claimed because:-

(i) He has utilized his deposit of N523,469.00,

(ii) He has earned the profit on the products purchased, and

(iii) He embarked on a speculative suit and is not entitled to any sum.

At the trial, one witness each testified for the parties, and in his testimony the appellant’s witness admitted, without an amendment to the statement of claim that after a demand letter from his solicitor, the respondent delivered to the appellant 1,272

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cartons of Gulder beer leaving a balance of 822 cartons and 1,050 cartons of star beer, leaving a balance of 350 cartons. He further stated that:-

Up to now, the defendants have not delivered the balance to me. I want the Court to ask the defendant to deliver the balance of 822 cartons of Gulder and 350 cartons of star.”

The respondent’s witness however testified that there was a notice of increase in prices to its customers stating that all orders made up to 27th, October, 1993 would be on the old price and from 28th October, 1993, on the new price, and when they were trying to serve the order, they discovered that the date on the appellants invoice had been altered from 28 to 27 apparently to beat the price increase. He further testified as follows:-

We refused to supply the plaintiff because the products were underpaid for, having concluded that the date was deliberately tampered with. The plaintiff has been given the products and he has accepted the products based on the new prices. The defendant is no longer owing the plaintiff any sum of money on that order. The defendant is not owing any carton

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of beer because the waybill shows clearly the quantity order CN0 8. The defendant is not liable to the plaintiff.

At the close of trial, counsel addressed the Court, and in his judgment delivered on the 31st of January, 1995, the learned trial Judge held as follows:-

In sum, I rule that the plaintiff has proved a claim on this evidence tendered and do hereby give the plaintiff judgment as claimed in his evidence, not as in the pleadings.”

Dissatisfied with the decision, the respondent herein appealed to the Court of Appeal, which set aside the said decision of the trial High Court in a judgment delivered on 8th of September, 2005. Four grounds of appeal are contained in the Notice of Appeal which can be found on pages 108 – 110 of the record of appeal.

On 10th October, 2017 when this appeal was heard, the learned counsel for the appellant G. C. Igbokwe, Esq., identified and adopted their brief of argument filed on 14th January, 2008 wherein two issues have been formulated from the four grounds of appeal for the determination of this appeal. The two issues are as follows:-

1. Whether from the totality of

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pleadings and evidence at the trial, the Court below was right in its holding that the trial Court made a case for the parties different from what they pleaded and equated abandonment of material facts pleaded and evidence at variance with such pleadings to mere technicality instead of simply holding that the appellant did not prove his case.

2. Whether the Court below was correct to hold that the trial Court did not at anytime consider the case put forward by the respondent and thereby occasioned a miscarriage of justice.

The respondents brief which was settled by Ogaga Ovrawah Esq., was filed on 8/12/16 but deemed properly filed on 10/10/17. In it, the learned counsel for the respondent adopts the two issues distilled by the appellant. I shall accordingly determine the appeal based on the said two issues as agreed by both parties.

Arguing issue one, the learned counsel for the appellant submitted that taking the entire pleadings and evidence of the parties into consideration, the Court below was wrong in reversing the judgment of the trial Court. He opined that all the appellant did was to prove a lesser quantity of products than he

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claimed and that it is perfectly within the powers of the trial Court to grant a lesser relief than is claimed but certainly not more, relying on Ekpenyong V. Nyong (1975) 2 SC 81, Orie V. Uba (1976) 9 – 10 SC 123, Agbi V. Ogbe (2005) 25 WRN 23, Omoboriowo V. Ajasin (1984) 1 SCNLR 152, Ngige V. Obi (2006) 14 NWLR (pt. 999) 1.

It is his further submission that granting a lesser relief than that which was claimed in this case does not amount to the trial Court making a case for the parties different from what they pleaded. This, according to him does not amount to total abandonment of pleadings or evidence being at variance with the pleadings.

Learned counsel submitted that since the respondent herein admitted paragraph 3 of appellant’s statement of claim in its paragraph 1 of statement of defence, the learned trial judge was right to accept that the appellant herein paid for the drinks on 27/10/93. He argued that pleadings are not evidence and facts averred in pleadings can only be proved by evidence. According to him, it is upon evidence or testimony in Court that the Court will decide whether or not facts pleaded or contained in pleadings

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have been proved and upon which judgment can be given, relying on Odulaja V. Haddad (1973) 11 SC 357 Okoli V. Morecab Finance Ltd (2007) 14 NWLR (pt.1053) 37.

Learned counsel further submitted that the decision of the Court below that the appellant admitted in evidence that it had been supplied with 1,272 cartons of Gulder beer and 1,050 cartons of star beer is perverse as the appellant never made such admission. On the effect of a perverse findings, he cited the cases of S.T.B. V. Anumnu (2004) 29 WRN 75, Nnajiofor V. Ukonu (1986) 4 NWLR (pt. 36) 16. Learned counsel urged the Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent referred to some paragraphs in the judgment of the learned trial judge and submitted that the Court below was right to hold that the appellant had abandoned its pleadings for which judgment ought not to have been entered in its favour. He submitted further that the lower Court said the obvious when it held on page 104 lines 15 – 20 of the record that the appellant admitted that it had been supplied 1,272 cartons of Gulder beer and 1,050 cartons of star beer as against

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its claim that it was entitled to 1,400 cartons of star beer and 2,100 cartons of Gulder beer. According to learned counsel, there was no basis for the criticism of the judgment of the lower Court when even the trial Court said that the evidence tendered before it was at variance with the pleadings. He opined that the appellant was claiming the immediate supply of 1400 cartons of star beer and 2,100 cartons of Gulder beer and not the difference between what it collected and what it claimed it was entitled to.

Learned counsel further submitted that pleadings form the frame work on which a party to a suit found his case, citing Ihezukwu v. University of Jos (1990) 4 NWLR (pt. 146) 598 at 607 Oniah v. Onyia (1989) 1 NWLR (pt. 99) 514 at 531, Ochonma v. Unosi (1955) NMLR 321. Learned counsel submitted that from its pleadings the appellant notified the respondent that it was claiming the number of cartons of beer set out therein but when it testified, it led evidence in support of the respondents case.

It was the further submission of counsel for the respondent that in spite of the evidence led at the trial, the appellant failed to

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amend its pleadings and so its evidence that it was supplied to the tune of N523,000.00 at the new price supports the respondent’s pleadings, particularly paragraph 14 at page 10 lines 31 – 41 of the records. He argued that as the learned trial judge did not base his judgment on the pleadings, then there was no evidence before him to base his judgment. He urged the Court to resolve this issue against the appellant.

In Black’s Law Dictionary, 8th Edition, pleading is defined as a formal document in which a party to a legal proceeding (especially in a civil lawsuit), sets forth or responds to allegations, claims, denials or defence. In summary, it consists of the plaintiff’s complaint and the defendant’s answer. The essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case is to be contested to avoid element of surprise by either party. It is also essential that parties are not allowed to adduce evidence which goes outside the facts pleaded. See Onwuka & Anor V. Omogui (1992) LPELR – 2719 (SC), (1992) 3 NWLR (pt. 230) 393, Adenuga V. Odumeru (2001) LPELR – 130 (SC), (2001) 2 NWLR (pt 696)

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184.

One other essence of pleading is that it must be precise and accurate on the issues to be decided by the Court such that no party or Court is left in doubt as to what each party requests from the Court. In the circumstance, parties are usually confined to their pleadings. Put differently, parties are bound by their pleadings. The law is trite that litigation is fought on pleadings of the parties and no party will be allowed to go outside the pleadings to make a case different from that which he had pleaded. At the hearing, no litigant would be permitted to set up a case which is different from that set forth in his pleadings. See Onuoha Nwokorobia V. Desmond Uchechi Nwogu & Ors (2009) LPELR-2127 (SC), (2009) 10 NWLR (Pt.1150) 553, Clifford Osuji V. Nkemjika Ekeocha (2009) LPELR-2816 (SC), (2009) 16 NWLR (Pt.1166) 81.

In the instant case, there is no doubt that the appellants evidence led at the trial Court was at variance with the pleaded facts in his statement of claim. This much was stated by the Court below. On page 103 of the record of appeal, the lower Court said as follows:- As I said, parties are bound by

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their pleadings, and the respondent in this case pleaded in its statement of claim that it is entitled to 1,400 cartons of star beer and 2,100 cartons of Gulder beer by the appellant, and it prayed the lower Court to compel the appellant to supply said number of cartons of beer to it, even as it very well knew that the appellant had already supplied it with 1,272 cartons of Gulder beer and 1,050 cartons of star beer.

Even the learned trial Judge in his judgment agreed that the appellant herein abandoned his pleadings and led evidence on unpleaded facts. Because of this, the learned trial Judge said thus on page 26 of the record.:

It is my firm belief that it is undesirable to give effect to the rules of pleadings which will enable one party to score a victory not on the merits of the case.

Then on page 28 of the record, which is the conclusion of the judgment, the learned trial Judge said:

In sum I rule that the plaintiff has proved the claim on this evidence tendered and do hereby give the plaintiff judgment as claimed in his evidence; not as in the pleadings. (italics mine for

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emphasis).

It can be clearly seen as was rightly held by the Court of Appeal that the moment the learned trial Judge expressed the undesirability of the rules of pleadings in civil cases, he had derailed. I would rather state that rules of pleadings in civil proceedings are desirable. This is so because, litigation is fought on the pleadings. They are the pillars upon which a party’s case is founded. It cannot be otherwise. The law is trite that it is not open to a party to depart from his pleadings and to put up a different case not contemplated by the other party. It is equally not open to the Court as was done by the learned trial judge in this case, to depart from the case pleaded by the parties and to found its judgment on matters which are neither pleaded nor constitute issues as settled in the pleadings. I agree with the Court below that the trial Court was wrong when it held that it gave judgment to the plaintiff as claimed in his evidence, not as in the pleadings. If this is allowed to stand, it will breed confusion and anarchy in civil proceedings. Rules of pleadings not only give the other party notice of the

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case he is to meet at the trial, they also define the parameters of the case.

As I said earlier, parties are bound by their pleadings. It is trite that any evidence led on facts not pleaded goes to no issue while any pleadings in respect of which no evidence is led are deemed abandoned. See Chukwuemeka Anyafulu & Ors V. Maduegbuna Meka & Ors (2014) LPELR – 22336 (SC); (2014) 7 NWLR (pt. 1406) 396; Adesanya v. Otuewu & Ors (1993) LPELR – 146 (SC), (1993) 1 NWLR (pt.270) 414, Asani Sogunro & Ors. v. Aremu Yeku & Ors (2017) LPELR-41905 (SC).

I quite agree with the Court below when it held on page 103 of the record of appeal that:

In civil actions tried on pleadings, the parties and the Court are bound by their pleadings filed in the case; they are certainly not allowed to set up cases different from their pleadings. The pleadings in an action determine and control the way and manner the trial of an action will succeed or fail, and to that end, parties must limit themselves severally to the issues raised in their pleadings, as evidence of facts not pleaded or contrary to facts pleaded is inadmissible and goes to no

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issue.

What baffles me in this case is that the appellant, at the time it filed the case at the trial Court knew very well that the respondent had supplied it with 1,272 cartons of Gulder beer and 1,050 cartons of star beer and yet it demanded to be supplied with 1,400 cartons of star beer and 2,100 cartons of Gulder beer. Moreso, even when the respondent herein filed its statement of defence denying liability and stating clearly that it had supplied the appellant with the products as stated above, the appellant made no attempt to amend its statement of claim but merely admitted in evidence that he had been supplied as stated by the respondent and as held by the Court below, it strengthened the case of the respondent. It was wrong for the trial Court to shove aside the pleadings of the parties to give judgment on the evidence only. That evidence was based on nothing. You cannot put something on nothing and expect it to stand, it will crumble. See Macfoy V. UAC (1962) AC, 152.

On the whole, I accept the position taken by the Court below which was largely to restate and apply the time honoured principle of law that parties are bound by their

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pleadings. No party is allowed to abandon his pleadings and thereafter lead evidence at large. This is unacceptable. I resolve this issue against the appellant.

The second issue is whether the Court below was correct to hold that the trial Court did not at any time consider the case put forward by the respondent and thereby occasioned a miscarriage of justice.

On this, the learned counsel for the appellant submitted that the learned trial judge adequately considered all the defences put forward by the respondent before coming to its decision to give judgment to the appellant. Referring to some portions of the judgment of the learned trial judge, learned counsel urged this Court to hold that the Court below was wrong to hold that the trial Court failed to consider the case of the respondent.

In response, the learned counsel for the respondent submitted that the judgment of the learned trial judge only concerned the transaction of the 27th October, 1993 as presented by the appellant, based on the documents tendered by the appellant to wit Exhibits CN0 1 – the order, CN0 2 the receipt for N523,496.50,

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CNO 3 – Letter from the respondent announcing price review and CN0 4 – Letter from appellant’s counsel to the respondent. That the only other document mentioned by the learned trial judge were Exhibits CN0 9 and CN0 10 – UTC orders tendered through the respondents witness but which the learned trial judge held that-

I have not seen the relevance in this suit of Exhibits CNO 9 and, CNO 10, I have therefore rejected

same.

It is his further submission that the trial Court failed to consider Exhibits CNO 7 and CNO 8 which appellant admitted signing and which shows that the appellant signed that it had collected the products it ordered at the new price and that the respondent owed it nothing. Relying on the case of Ojogbue V. Nnubia (1972) 1 ALL NLR (pt. 2) 226 at 232, learned counsel submitted that it is the duty of the trial judge to consider all the issues properly raised in the pleadings and the evidence supporting them.

In conclusion, learned counsel for the respondent submitted that the failure of the learned trial

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judge to consider the case put forward by the respondent made the judgment perverse and occasioned a miscarriage of justice. He urged this Court to resolve this issue against the appellant.

In several decisions of this Court, it has been repeatedly held that all lower Courts, as a general rule, must pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. There is therefore need for every Court or Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so, as I said earlier, may result in a miscarriage of justice. See Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 6 SCNJ 508 at 522, Ojogbue V. Nnubia (1972) 6 SC 227, Katto V. CBN (1991) 9 NWLR (pt.214) 126, Yakassai v. Incar Motors Ltd. (1975) 5 SC 107; Citec International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR-22314 (SC).

In the instant case, the main

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issue for determination before the trial Court was whether there was alteration of date from 28/10/93 to 27/10/93 by the appellant. It behoved the learned trial judge in the circumstance to consider all the pleadings and evidence of both parties in order to assist him in reaching a fair and acceptable decision. The Court below faulted the learned trial judge on this aspect and held that the learned trial judge failed to consider the evidence of the respondent before reaching a decision and thus occasioned a serious miscarried of justice.

As was pointed out by the learned counsel for the respondent in their brief of argument, the respondent’s witness tendered the order forms of UTC stores which preceded that of the appellant on 28/10/93 as Exhibits CN0 9 and CN0 10. It was the case of the respondent that the letter of appointment of the appellant, which was tendered as Exhibit CN0 5 and Conditions of Sale –

Exhibit CN0 6, regulated the relationship between the respondent and the appellant. The respondent stated in both its statement of defence and evidence in Court (trial Court) that the date

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on Exhibit CN0 1 was tampered with and that it becomes more obvious when one considers it along with Exhibits CN0 9 and CN0 10 which were orders from UTC Stores which placed its orders just before the appellants CN0 1.

My Lords, the UTC invoice was Invoice No. 014649 and receipt No. 539399 both dated 28/10/93. The next order Invoice No. 014650 was that of the appellant. According to the respondent, the date was altered from 28/10/93 to 27/10/93 ostensibly to accord with the respondents decision to supply its goods to its customers based on the old price for those who had ordered before 28/10/93. It was this alleged alteration which was the bone of contention between the parties. In fact, it was the alteration which gave birth to this case. It was therefore the duty of the trial Court to painstakingly consider the case of both parties in order to reach a just and fair decision.

Unfortunately, the learned trial judge, as was rightly held by the Court below missed the point and failed to consider the defence put up by the respondent which was vital to its case. The trial

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Court simply said of the respondent’s Exhibits CN0 9 and CN0 10 on page28 of the record that-

I have not seen the relevance in this suit of Exhibits CN0 9 and, ‘CN0 10, I have therefore, rejected same.

With due respect to the learned trial judge, Exhibits CN0 9 and CN0 10 were more than relevant to the case of the respondent. In deed the two exhibits ought to have played a pivotal role in the determination of the case, for whereas Exhibits CN0 9 and CN0 10 of the respondent were first in time to Exhibit CN0 1 of the appellant, one wonders how the order paper of UTC Stores bore the date of 28/10/93 but the subsequent order by the appellant carried a date of 27/10/93. For me, I agree with the Court below that, had the learned trial judge considered Exhibits CN0 9 and CN0 10, rather than rejecting them without any tangible reasons, he would have arrived at a different conclusion to the effect that the appellant actually altered the date on the document.

On the whole, the failure

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of the learned trial judge to consider the evidence of the respondent led to a serious injustice and/or miscarriage of justice against the respondent. It was therefore proper for the Court below to intervene by setting aside that judgment. This issue, as it stands, does not avail the appellant. I resolve same against the appellant.

Having resolved the two issues against the appellant, I hold that this appeal is devoid of merit and is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed. I shall however make no order as to costs.

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SC.36/2007