Chief James Onyewuke V. Modu Sule (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of P. A. Mahmoud J., of the Kano State High Court, delivered on 4th day of April, 2002. The Notice of Appeal was filed on 05-04-2002 with four grounds challenging the judgment of the learned trial Judge delivered in favour of the plaintiff/Respondent in the sum of One hundred and twenty-five thousand two hundred and ten Naira as the unpaid balance of N145,210 being money for the supply of 719 bottles of CSM Vaccines at the request of the appellant/defendant on 19th February, 1995. The learned trial Judge awarded 10% interest at the Court rate from the date of judgment until the final liquidation of the judgment.

ISSUES FOR DETERMINATION

The appellant sought and was granted leave to file brief of argument on 31-10-2006 setting forth the following issues for determination:

“1. Whether Exhibit I relied upon by the Court in the judgment was pleaded or not in the plaintiff’s statement of claim and whether same form part of the evidence on what transpired in Maiduguri, expunged by the lower court in the lower court’s judgment.

2. Whether the lower Court was right to have made comments on Exhibits 3 and 4 when the Court was not sitting on Appeal.
3. Whether the trial Court was right in resorting to proviso to section 132 Evidence Act when fraud, illegality or mistakes was not pleaded or canvassed at the trial.
4. Whether this judgment delivered more than 3 months after the final address breaches Section 294(1) 1999 Nigerian Constitution.”

The learned Counsel to the Respondent identified the following as issues for determination:

“(i) Whether, having pleaded facts relating to Exhibit 1 the lower Court was right to have relied on Exhibit 1 in coming to the conclusion it reached notwithstanding that fraud, illegality or mistakes were not specifically pleaded? (GROUNDS 1 & 3). 5.

(ii) Whether, it was proper for the lower Court to have assessed and placed reliance on Exhibits 3 and 4 while considering the respondent’s case at the trial Court before it came to the conclusion it reached? (GROUND 2).

(iii)Whether, notwithstanding that judgment was delivered on 6th March, 2002, that is 3 months and 11 days after the conclusion of addresses by the Counsel, the Appellant suffered any miscarriage of justice (GROUND 4).”

FACTS IN DISPUTE

The Appellant and the Respondent sell drugs in Sabon Gari Market in Kano. The Appellant supplies drugs to hospitals. The Respondent’s case is that sometime in March, 1995 he sold on credit 719 (Seven hundred and nineteen bottles of CSM Vaccines at a unit price of N270.00 (two hundred and seventy Naira) and another four (4) bottles at the total cost of One thousand eighty Naira (N1,080.00) to the appellant at his request with a promise to pay within a week’s time. The appellant made part payment of N50,000.00 (fifty thousand Naira) but failed or refused to pay the balance despite repeated demands.

This resulted into the prosecution and conviction of the appellant for criminal breach of trust by a Senior Magistrate Court in Kano. The Appellant was sentenced to a term of two years or one thousand Naira (N1,000.00) fine in default of payment. At the senior Magistrate court the appellant made a N20,000.00 (twenty thousand Naira) payment. The outstanding balance is N125,210.00 (one hundred and twenty-five thousand two hundred and ten Naira) hence the suit before the High Court of Justice in Kano, Kano State.

At the trial the Appellant denied each and every story told by the Respondent. The Appellant said that they do supply drugs to buyers at Maiduguri. They went to Maiduguri for the purpose. The Respondent’s suppliers paid him N50,000.00 for what he had supplied. Neither would the Appellant admit he was convicted for criminal breach of trust by the Senior Magistrate Court in Kano nor did he pay the Respondent N20,000.00 (twenty thousand Naira) on arraignment before that Court. The Appellant therefore denied there was any contract of sale of drugs between him and the Respondent. There was no objection from the defense Counsel when Exhibit “1” and “3” were tendered through the Respondent who testified as PW1. Though objection was taken to Exhibit “2” it was admitted by the learned trial Judge. Exhibit “4” was tendered by the Appellant at the trial Court when he testified as Dw1.

PRELIMINARY OBJECTION