Christopher N. Tanko V. Garduga N. Nongha (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IFEYINWA CECILIA NZEAKO, J.C.A., (Delivering the Leading Judgment)

The Respondent in this appeal was the Plaintiff in Suit No. TRSJ/88/2001 which he instituted on 26th, October 2001 at the High Court of Justice, Jalingo Taraba State of Nigeria.

The suit came before Danjuma J. Parties exchanged pleadings. At the hearing, the Plaintiff testified and called two witnesses. They all testified in the absence of the Defendant. Later however, on the application of the defence counsel Mr. Yaro, the Plaintiff and his witnesses were recalled and were cross-examined.

The Defendant did not testily nor did he call any witness. Counsel for the parties addressed the Court. On 22nd May, 2003, the learned trial Judge delivered judgment in the action in favour of the Plaintiff. The Defendant being dissatisfied has appealed to this Court.

He filed 4 grounds of appeal and later filed and served his brief of argument on the Respondent who on his part failed to file any brief of argument. On 10/5/2004, this Court granted the Appellant leave to argue the appeal exparte, based on the Appellant’s brief of argument alone and set it down for hearing.

On the hearing date of the appeal, being 25/11/2004, the Respondent was not in Court and no counsel represented him, though served on 10/9/2004. We therefore proceeded to hear the appeal in the absence of the Respondent based on the appellant’s brief alone as permitted by the Rules of this Court. Learned counsel for the Appellant E.A. Nyaro Esq., then adopted his brief of argument filed on 10/2/2004 and urged the Court to allow the appeal.

In his brief of argument, learned counsel for the Appellant had identified the following two issues for determination from the 4 grounds of appeal thus:-

(1) Whether on the pleadings and evidence led the learned trial Judge was correct in law when he held that the Plaintiff/Respondent as entitled to judgment? (distilled from grounds 1,2 & 3).

(2) Whether the order by the learned trial Judge awarding the Plaintiff/Respondent the sum of N200,000.00 as aggravated damages can be justified in law? (from ground 4).

On issue No.1, learned counsel for the Appellant urged this Court to answer the same in the negative, for the learned trial Judge erred in law when he discountenanced Exhs 3 and 5, the pivot of the Plaintiff/Respondent’s claim. That Exhibits 3 and 5 reveal that the Respondent entered into contract agreement for the purchase of land with one Livinus B. Swanikuru on 15th April, 1999. This fact was clearly pleaded in paragraph 3 of the statement of claim, which fact the Defendant/Appellant admitted in paragraph 1 of his statement of defence.

That the Respondent admitted under cross-examination that Mr. Livinus Swanikuru his vendor is alive and lives in Jalingo.

Counsel referred to the evidence of PW3, Mrs. Abisha Shanaki who admitted that she was the agent of the Plaintiff and stated that she accompanied the Defendant to see the vendor/owner, Mr. Swanikuru because he knew him, the real Owner of the land measuring 50 x 100sq metres. Learned counsel submitted that in spite of the unchallenged, and uncontradicted evidence of PW3, the Court below came to a wrong decision which did not flow from the evidence, thus occasioning a miscarriage of justice. He further contended that the decision of the court below was mere speculation which was condemned by the Supreme Court in Ivienagbor v. Bazuaye (1999)6 SCNJ 235 at 243-244.

He further submitted that the Court below was in grave error when it discountenanced Exhs 3 and 5 and invoked Section. 132 of Evidence Act which he misconstrued vis-a-vis Exhs 3 & 5 which were clear and left no room for any oral evidence as held by the Court.

Counsel pointed out that parties are bound by their pleadings. He submitted that the evidence of the Respondent’s witnesses were at variance with his pleadings in paragraphs 3 – 6, 9, 10 and 16(b) and the testimony of PW1. That there were material contradictions, which he pointed out. He argued that the court below was in error when it held that the Appellant was the vendor. For, he was not a party to the contract by virtue of doctrine of privity of contract. Alfotrin v. A-G Federation (1996) 12 SCNJ 236 at 254-256 relied on.